Madras High Court
T. Ebenezar vs The Secretary To Government on 20 September, 2023
W.P(MD)No.21662 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE BATTU DEVANAND
W.P.(MD)No.21662 of 2017
T. Ebenezar ...Petitioner
Vs.
1. The Secretary to Government,
Social Welfare & Nutritious Meal
Programme Department,
Government of Tamil Nadu,
Secretariat, Chennai – 9.
2. The Director,
Directorate of Social Welfare,
Government of Tamil Nadu,
Guindy, Chennai -32.
3. The District Social Welfare Officer,
Tirunelveli District,
Tirunelveli.
4. The Block Development Officer,
Shenkottai Panchayat Union,
Shencottai,
Tirunelveli District.
5. The Accountant General,
No. 361, Anna Salai,
Chennai – 600 015. ....Respondents
1
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W.P(MD)No.21662 of 2017
Prayer: Writ Petition is filed under Article 226 of the Constitution
of India, seeking for the issuance of Writ of Certiorarified
Mandamus to call for the records in respect of the proceedings of the
first respondent in Letter 4461/SW7/(1)/2017-1 dated 04.04.2017
and consequently directing the respondents to grant pension to the
petitioner from the date of retirement taking into account the entire
period of service as Rural Welfare Officer (Woman) from
01.10.2008 to 30.06.2010 and the 50 % of the service rendered by
her as Child Welfare organizer from 05.02.1981 to 30.09.2008.
For Petitioner : Mr.V.Kannan
For R1 to R3 : Mr.P.Subbaraj
Special Government Pleader
For R4 : Mr.P.Athimoolapandian
For R5 : Mr.P.Gunasekaran
ORDER
Heard Mr.V.Kannan, learned counsel for the petitioner,
Mr.P.Subbaraj, learned Special Government Pleader appearing for the
respondents 1 to 3, Mr.P.Athimoolapandian, learned counsel for the 4th
respondent and Mr.P.Gunasekaran, learned Standing Counsel appearing
for the 5th respondent and perused the materials available on record.
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W.P(MD)No.21662 of 2017
2. The grievance of the Writ Petitioner raised in this Writ
Petition is for not taking into account of 50% of the service of the
petitioner as Child Welfare Organizer from 05.02.1981 to 30.09.2008 for
calculating pensionary benefits and to refix the pension and award the
arrears of pension.
3. The case of the petitioner is that the petitioner was appointed
as Balasevika on 24.08.1978 at Tenkasi Panchayat Union and from
05.02.1981 onwards she was worked as Child Welfare Organizer and
thereafter, she was promoted as Rural Welfare Officer in Shencottai
Panchayat Union on 30.09.2008. She retired from service on 30.06.2010
on attaining the superannuation.
4. The learned counsel for the petitioner submits that the 4th
respondent vide proceedings, dated 05.08.2010 sent a proposal to the
fifth respondent. The fifth respondent returned the pension proposal
stating that the petitioner was promoted only with effect from 30.09.2008
i.e after 01.04.2003 and therefore, the petitioner was governed by
contributory pension scheme only and not under Tamilnadu Pension
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W.P(MD)No.21662 of 2017
Rules. The petitioner sent a representation dated 22.12.2016 requesting
the respondents to grant pension from the date of her retirement taking
into account the entire period of service. Since no action was taken on
her representation, the petitioner has filed W.P(MD)No.3547 of 2017 and
this Court by order dated 01.03.2017 directed the first respondent to
consider the representation dated 22.12.2016. In pursuance thereof, the
first respondent rejected the claim of the petitioner by the impugned
order dated 04.04.2017. Aggrieved by the same, the petitioner has filed
this Writ Petition.
5. The learned Special Government Pleader appearing for
respondents 1 to 3 basing on the averments in the counter affidavit
submitted that since there were contrary decisions rendered in Principal
Seat as well as in this Bench, the matter was referred to a larger bench in
W.P(MD)Nos.1553 to 1561 of 2016 and hence, the petitioner is not
entitled for the relief sought in the Writ Petition.
6. The learned Special Government Pleader placed a copy of
the common judgment made in W.A(MD)Nos.587 and batch dated
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W.P(MD)No.21662 of 2017
03.12.2014 and the order dated 22.08.2023 passed in W.P(MD) No.1372
of 2019. Paragraph Nos.7 to 9, of the order dated 22.08.2023 is extracted
herein under:
7. The learned Additional Government Pleader
placed a copy of the order, dated 14.12.2021 in W.P.
(MD)No.6486 of 2017 and order, dated 05.04.2022 in W.P.
(MD)No.1654 of 2021.
8. On careful perusal of the said orders, it appears
that in identical case, the Full Bench of this Court in
Government of Tamil Nadu and others Vs.
R.Kaliyamoorthy reported in 2019 (6) CTC 705 has
observed as extracted herein under :-
"6.Rule 11(4) unambiguously stipulates that the
job must be whole time employment. Therefore, the
temporary employees appointed for whole time job alone
are entitled for counting of 50% of their services. The part
time employment cannot be considered for counting of the
service as per Rule 11(4) of the Rules. Thus, the Division
Bench judgment cannot be followed, as it was overruled by
the Hon'ble Full Bench of this Court and further Rule
11(4) also categorically enumerates that the temporary
employees appointed in full time employment are alone
eligible for counting of 50% of their services for the
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W.P(MD)No.21662 of 2017
purpose of reckoning the required service for grant of
pensionary benefits."
9. In W.P.(MD) No.6486 of 2017, this Court
observed as extracted herein under :
"6.The said G.O.Ms.No.39, dated 13.06.2011 it
was held that an employee, working in Panchayat as Full
Time Clerk or Part Time Clerk and having been absorbed
by the Government prior to 01.04.2003, will be entitled for
counting 50% of service as part time employee under the
consolidated pay for the purpose of computation of
pensionary benefits. This G.O. is against Rule 11 (a) and
therefore, the Government has issued another G.O.Ms.77,
dated 12.07.2013, stating that the full time service alone
can be considered for calculation of pensionary benefits.
But these two G.Os were put to challenge before this Court
and this Court has passed an order holding that para 4(b)
in G.O.Ms.No.77, dated 12.07.2013 is struck down. The
said paragraph 4(b) states if it is part time the same shall
not be taken into account for calculating the pensionable
service. This Court is of the considered view that even
though the paragraph 4(b) is struck down, the Rule 11 (4)
is still in force and the same is still holding the field.
Moreover the Rule will prevail over the G.O. Therefore
this Court is of the considered opinion that the service
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W.P(MD)No.21662 of 2017
rendered from 01.03.1986 to 31.12.1990 cannot be taken
into account."
7. In view of the facts and circumstances of the case that the
petitioner worked as Child Welfare Organizer from 05.02.1981 to
30.09.2008, she is not entitled to count the said service for pensionary
benefits, as per the Rule 11(4) of the Tamil Nadu Pension Rules, 1978.
8. Accordingly, for the reasons stated above, this Writ Petition
is dismissed.
9. No costs.
20.09.2023
Index : Yes / No
NCC : Yes / No
CM
https://www.mhc.tn.gov.in/judis
W.P(MD)No.21662 of 2017
To,
1. The Secretary to Government,
Social welfare & Nutritious Meal
Programme Department,
Government of Tamil Nadu,
Secretariat,
Chennai – 9.
2. The Director,
Directorate of Social Welfare,
Government of Tamil Nadu,
Guindy, Chennai -32.
3. The District Social Welfare Officer,
Tirunelveli District,
Tirunelveli.
4. The Block Development Officer,
Shenkottai Panchayat Union,
Shencottai,
Tirunelveli District.
5. The Accountant General,
No. 361, Anna Salai,
Chennai – 600 015.
https://www.mhc.tn.gov.in/judis
W.P(MD)No.21662 of 2017
BATTU DEVANAND, J.
CM
W.P.(MD)No.21662 of 2017
20.09.2023
https://www.mhc.tn.gov.in/judis
