Madras High Court
The State Of Tamil Nadu vs M.Sakthi ... 1St on 5 August, 2024
Author: C.V. Karthikeyan
Bench: C.V. Karthikeyan, J.Sathya Narayana Prasad
2024:MHC:2975
W.A(MD) No.963 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.08.2024
CORAM:
THE HONOURABLE MR.JUSTICE C.V. KARTHIKEYAN
and
THE HONOURABLE MR.JUSTICE J.SATHYA NARAYANA PRASAD
W.A(MD) No.963 of 2018
and
C.M.P(MD) No.6407 of 2018
1.The State of Tamil Nadu,
Rep. by its Secretary,
Forest and Environment (FR-2) Department,
Secretariat, Chennai – 600 009.
2.The Principal Chief Conservator of Forest,
Panagal Building,
Saidapet, Chennai – 600 015.
3.The Forest Range Officer,
Social Forest Range,
Pulienkudi, Tirunelveli District.
4.The Forest Extension Officer,
Forest Extension Centre,
Tirunelveli Division,
Ponnakurchi, Tirunelveli. ... Appellants/Respondents
-vs-
1.M.Sakthi ... 1st Respondent/Petitioner
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Page 1 of 12
W.A(MD) No.963 of 2018
2.The Principal Accountant General Officer,
Accountant General Office,
Chennai – 600 018.
... 2nd Respondent/5th
Respondent
Prayer: Writ Appeals filed under Clause 15 of Letters Patent, to set aside
the order passed in W.P. (MD) No.22024 of 2015 dated 11.02.2016 and
allow the present Writ Appeal.
For Appellants : Mr.M.Senthil Ayyanar
Government Advocate
For Respondents : Mr.K.Seemaraj for R1
Mr.P.Gunasekaran for R2
JUDGMENT
(Judgment of the Court was made by C.V. KARTHIKEYAN, J.)
The first, second, third and fourth respondents in W.P. (MD) No.
22024 of 2015 have filed the present writ appeal aggrieved by the
judgment of a learned Single Judge dated 11.02.2016, not only in that
particular writ petition but also in a batch of other writ petitions,
whereby, a writ petition filed in the nature of a Mandamus seeking a
direction against the present appellants to pass orders to count one half of
the service of the writ petitioner before his absorption on 07.08.2009
along with regular service for the purpose of pension and to settle all
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retirement benefits with 6% interest within a stipulated time was allowed.
2. The writ petitioner has been initially appointed as
Supernumerary Plot Watcher on daily wage basis on monthly
consolidated pay. He had been so appointed on 01.01.1982. He continued
under the same condition of service. His services were regularised on
07.08.2009. Post retirement, he sought one half of the services rendered
as 'Daily Wage Worker' from 01.01.1982 till the date of his
regularisation/07.08.2009 to be counted for pension and other benefits.
3. The issue is no longer res integra and had been earlier referred
to a Full Bench in a batch of writ appeals in Government of Tamil Nadu
and Others -vs- R. Kaliyamoorthy [reported in 2019 Vol.VI, CTC 705] .
The Full Bench had delivered judgment on 03.12.2019. The reference
before the Full Bench was as follows:-
"In view of the provisions of the Tamil Nadu
Pension Rules, as amended, if a government
servant is regularised in service after 01.04.2003
whether such a person will be entitled to count 50%
of the past service rendered prior to regularisation
for the purpose of computing his pension under the
old pension scheme."
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4. This reference was rephrased by the Full Bench as follows:-
"Whether half of the past service rendered
by Government servants whose appointments were
regularised after 01.04.2003 can be counted for
the purpose of grant of pension under the
provisions of the Tamil Nadu Pension Rules, 1978
in the light of the amendments to the aforesaid rules
vide G.O. Ms. No.259, Finance (Pension)
Department dated 06.08.2003 and G.O. Ms. No.41,
Finance (Pension) Department dated 08.02.2010."
(Emphasis Supplied)
5. After examining the Government Orders relating to the Pension
Rules, the Full Bench had finally held as follows:-
“45. In the light of the above, we answer the
reference as follows:-
i) Those who are freshly appointed on or after
01.04.2003 are not entitled to pension in view of
proviso to Rule 2 of Tamil Nadu Pension Rules,
1978 inserted by G.O.Ms.No.259 dated 06.08.2003.
(ii) Those government servants/employees
appointed prior to 01.04.2003 whether on
temporary or permanent basis in terms of Rule 10
(a) (i) of Tamil Nadu State and Subordinate Service
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Rules will be entitled to get pension as per the
Tamil Nadu Pension Rules, 1978.
(iii) In case, a government employee/servant had
also rendered service in non-provincialised service,
or on consolidated pay or on honorarium or daily
wage basis and if such services were regularised
before 01.04.2003, half of such service rendered
shall be counted for the purpose of conferment of
pensionary benefits.
(iv) Those government servants who were
appointed in the aforesaid four categories before
the cut off date and later appointed under Rule 10
(a) (i) of Tamil Nadu State and Subordinate Service
Rules before 01.04.2003 and absorbed into regular
service after 01.04.2003 will not be entitled to
count half of their past service for the purpose of
determination of qualifying service for pension.
(v) Those government servants who were
appointed in the aforesaid four categories before
01.04.2003 but were absorbed in regular service
after 01.04.2003 will not be entitled to count half
of their past service for the purpose of
determination of qualifying service for pension."
(Emphasis Supplied)
The petitioner falls under Sub-clause (5) above.
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6. He had been appointed before 01.04.2003, on 01.01.1982 as a
Daily Wage Worker but, who was paid monthly salary. He was brought
into regular service on 07.08.2009. The Full Bench had held that those
who had been absorbed in regular service after 01.04.2003 will not be
entitled to count one half of their past service for the purpose of
determination of qualifying service for pension.
7. This judgment of the Full Bench has been taken up further in
appeal before the Hon'ble Supreme Court of India in Special Leave
Petition (Civil) Diary No.15406 of 2021. The Hon'ble Supreme Court
had observed as follows:-
“While disposing of Writ Appeals which orders are
presently under challenge, the Division Bench of the High Court
relied upon the law laid down by full bench of the High Court in
Govt. of Tamil Nadu and Others versus R. Kaliyamoorthy
[reported in 2019 Vol.VI, CTC 705]. Paragraphs 40 to 42 of the
decision of the Full Bench were as under:
“40. For example, if a person is appointed
prior to 01.04.2003 in a non-provincialised service or
on consolidated pay or on honorarium or daily wage
basis and later to a cadre post on temporary basis
under Rule 10(a)(i) of the Tamil Nadu State and
Subordinate Service Rules before 01.04.2003 and such
service is regularized after 01.04.2003, such
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Government employee is eligible for Government
Pension under the Tamil Nadu Pension Rules but at
the same time would not be eligible to include half of
services rendered in such capacity viz. I) Non-
provincialised services ii) Consolidated pay, iii)
honorarium; or iv) daily wage basis to his regular
service.
41. Thus, a government servant who may have
been appointed before the cut-off dated of 31.03.2003
may be entitled to government pension if he satisfies
the requirement of qualifying service in Rule 3(o) of
the Tamil Nadu Pension Rules, 1978. However, such a
person will not be entitled to add half of the past
service held in any one of the four capacity mentioned
above prior to 01.04.2003 since his regularization is
subsequent to the cut off date. Therefore, only those
who were appointed prior to 01.04.2003 whether as
temporary appointment but in accordance with Rule
10(a) (i) alone will be entitled to get pension.
42. The cut off date i.e. on or after 01.04.2003
in proviso to Rule 2 of the Tamil Nadu Pension Rules,
1978 will not per se bar a person from getting pension
if such a person had joined the service in accordance
with the provisions of Tamil Nadu State and
Subordinate Service Rules, i.e. in the cadre whether on
temporary or permanent basis. Services rendered
before the cut off date of 01.04.2003, can be added to
the regular service only if the service was regularized
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before the said date for determining the qualifying
service. Therefore, in our opinion, it would be
appropriate to say that Rule 11 (4) gives the meaning
of qualifying service rather than giving significance to
cut off date. Therefore, it is clear that only if the
appointment is in accordance with the Rules and such
appointment is prior to 01.04.2003, 50% of the past
service can be added along with the regular service.”
In so far as the instant matters are concerned, the Division
Bench observed as under:
“22. Therefore, in view of the law laid down as
aforesaid, we have no hesitation in holding that the
appeals filed by the State are liable to be allowed.
There is no more difficulty we may face. This is, with
respect to catena of decisions available without taking
note of the relevant provisions. Even this issue has
been answered by the Full Bench of this Court
referred to above, by holding that an issue which is
not considered consciously leading to a decision may
not be a binding precedent. Thus, illegality cannot be
allowed to perpetuate.”
We have heard Mr. S. Nagamuthu, learned Senior
Advocate in support of the petitions and Mr. Jaideep Gupta,
learned Senior Advocate for the respondents.
Mr. Nagamuthu attempted to distinguish the instant
matters, submitting inter alia that the services of the petitioners
were regularized before 01.04.2003 and as such the decision of
the Full Bench would not govern the fact situation before this
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Court. He could not however, point out any document nor was
any such assertion made at any juncture in any of the pleadings.
We therefore, see no reason to entertain these petitions
which are accordingly dismissed.
In case the regularization in the instant case had occurred
before 01.04.2003, the petitioner shall be entitled to take
appropriate proceedings as are open to them in law.”
(Emphasis Supplied)
8. In view of the direct pronouncement rendered by the Full Bench
which had been affirmed by the Hon'ble Supreme Court, we hold that the
learned Single Judge had erred in directing the appellants herein to
consider one half of the service of the writ petitioner before his
absorption on 07.08.2009 along with regular service as the period of
service for calculating pension and other benefits.
9. The Writ Appeal naturally has to succeed and is accordingly
allowed. No costs. Connected Miscellaneous Petition is closed.
[C.V.K., J.] [J.S.N.P., J.]
05.08.2024
Index: Yes/No
Speaking/Non-speaking order
Neutral citation:Yes/No
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PKN
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To
1.The Secretary,
State of Tamil Nadu,
Forest and Environment (FR-2) Department,
Secretariat, Chennai – 600 009.
2.The Principal Chief Conservator of Forest,
Panagal Building,
Saidapet, Chennai – 600 015.
3.The Forest Range Officer,
Social Forest Range,
Pulienkudi, Tirunelveli District.
4.The Forest Extension Officer,
Forest Extension Centre,
Tirunelveli Division,
Ponnakurchi, Tirunelveli.
5.The Principal Accountant General Officer,
Accountant General Office,
Chennai – 600 018.
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C.V. KARTHIKEYAN, J.
and
J.SATHYA NARAYANA PRASAD, J.
PKN
05.08.2024
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