Madras High Court
The Secretary To Government vs A.Devasagayam on 3 September, 2024
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan, J.Sathya Narayana Prasad
W.A.(MD)No.99 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.09.2024
CORAM
THE HON'BLE MR.JUSTICE C.V.KARTHIKEYAN
AND
THE HON'BLE MR.JUSTICE J.SATHYA NARAYANA PRASAD
W.A(MD)No.99 of 2019
and
C.M.P.(MD)No.669 of 2019
1.The Secretary to Government,
Municipal Administration and Water Supply Department,
Fort St.George, Chennai -600 009.
2.The Director of Town Panchayats,
Kuralagam, Chennai – 600 108.
3.The Assistant Director of Town Panchayats,
Theni Region, Theni.
4.The Executive Officer,
Kuchanur Town Panchayat,
Kuchanur, Theni District. ... Appellants
vs
1.A.Devasagayam
2.The Assistant Director,
Local Fund Audit, Theni District, Theni. ...Respondents
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https://www.mhc.tn.gov.in/judis
W.A.(MD)No.99 of 2019
PRAYER: Writ Appeal filed under Clause 15 of Letters Patent, to set aside
the order of this Court dated 09.07.2018 passed in W.P(MD)No.6789 of
2017.
For Appellants :Mr.Veera Kathiravan
Additional Advocate General
for Mr.M.Senthil Ayyanar
Government Advocate
For R1 :Mr.S.Sankarapandian
*****
JUDGMENT
(Judgment of this Court was delivered by C.V.KARTHIKEYAN, J.)
The 1st, 2nd, 4th and 5th respondents in W.P.(MD)No.6789 of 2017 had
filed the present Writ Appeal questioning a common order passed by the
learned Single Judge in a series of Writ Petitions, whereby, the learned
Single Judge by said order, dated 09.07.2018, had allowed all the Writ
Petitions and had passed the following directions:
“45.In the result, these writ petitions are allowed and the
respective respondents in each of the writ petitions are hereby
directed to take into account the 50% of the past services
rendered by each of the petitioners either as Vocational
Instructors or any other employment either as a Part Time / Full
time / adhoc / temporary / daily wages employees before they
brought in under the regular time scale of pay on permanent basis
or absorption and by calculating the said 50% of their past
service, pension eligibility and pension enhancement or difference
of pay and pension shall be calculated and disbursed in favour of
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the respective petitioners. After fixing the revised pension by
taking into account the past 50% services, the revised pension
arrears shall be calculated and to be disbursed to the petitioners
within a period of 12 weeks from the date of receipt of a copy of
this order. It is needless to mention that the petitioners shall
continue to receive the revised pension.”
2.The Writ Petition had been filed in the nature of a Writ of
Mandamus to direct the respondents therein to count half of the service
rendered by the Writ Petitioner from the date of joining of service as
Drinking Water Pipe Line Fitter from 27.02.1986 till 22.06.2006 along with
the regular service rendered as Motor Operator from 23.06.2006 till
30.04.2008 as qualifying service and to grant pension with all consequential
benefits with interest. In effect, it would imply that the Writ Petitioner had
joined the service on daily wage basis as Drinking Water Pipe Line Fitter
from 27.02.1986. He was brought into regular service only on 23.06.2006
as Motor Operator. Till 22.06.2006, he was working only as a daily wage
worker. He retired from service on 30.04.2008. He claimed that quite apart
from the regular service, namely, from 23.06.2006 till 30.04.2008, the
earlier service put in by him as daily wage worker from 27.02.1986 to
22.06.2006 should be considered and half of such service should be taken
into consideration as part of his regular service for calculation of his
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qualifying years of service for pensionary benefits and other attendant
benefits.
3.The learned Single Judge had, when the Writ Petition was examined
and orders were passed, the benefit of a Division Bench judgment and
following such Division Bench judgment, in a series of Writ Petitions,
passed a common order directing the appellants/respondents therein to take
into consideration the half of such service, which the Writ Petitioner had
been working as daily wage worker.
4.The learned Additional Advocate General who appeared for the
Writ Appellants however brought to the notice of this Court the judgment of
Full Bench in the case of the Government of Tamil Nadu vs
R.Kaliyamoorthy, delivered on 03.12.2019 after the order of the learned
Single Judge. The reference before the Full Bench was 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."
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5.The Full Bench had answered that particular reference by further
sub classifying the same into five separate categories. The Writ Petitioner
fell into the fourth category. We would extract only the answer of the Full
Bench as stated in the fourth category, which is as follows:
“(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.”
6.The Full Bench had given a very categorical finding that those
Government servants who had appointed in aforementioned four categories
and the Writ Petitioner fell into one of the said four categories, before the
cut-off date, namely, 01.04.2003 and later had been appointed under Rule
10(a)(i) of Tamil Nadu State and Subordinate Service Rules before
01.04.2003 and later 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. This would effectively
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mean that the Writ Petitioner having been appointed on daily wage basis on
27.02.1986 and having been regularised after 01.04.2003, namely, on
23.06.2006, was not entitled to seek half of the earlier service period from
27.02.1986 till 22.06.2006 to be considered as past service for the
determination of qualifying service for pension.
7.The learned Counsel for the first respondent/Writ Petitioner
however drew the attention of this Court to G.O.(Ms)No.198, Municipal
Administration and Water Resources Department, dated 26.10.1998,
wherein, the concept of regularisation had been brought in, to benefit those
who were working for a continuous period of ten years on daily wage basis.
But, subsequently, in the year 2002, the Government issued a Letter No.
35199/TP2/2002.2, dated 27.09.2002, Municipal Administration and Water
Resources Department and we would extract the said letter in entirety:
“I am directed to refer your letter cited where in it has
been reported that 1224 NMR Water Supply Workers have been
brought under regular establishment on time scale to pay as per
order issued in G.O.M.S.No.198, MA&MS Department Dt.
26.10.1998.
2. Govt. have examined the issued in detail and have
decided that the scheme sanctioned in the G.O.M.S.NO.198 MA
&W WA Department Dt 26.10.1998 relating to regularisation of
the service of 1224 NMR water supply workers may be kept in
abeyence in view of the financial crunch experienced by many of
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the town panchayts and it will be reviewed as soon as the
financial position of the town panchayats are improved.”
8.It had thus seen that the Government had kept the scheme
sanctioned in G.O(MS)No.No.198, Municipal Administration and Water
Resources Department, dated 26.10.1998, relating to regularisation of
service of NMR water supply workers in abeyance in view of financial
crunch experienced by many of the Town Panchayats. Unfortunately, for the
Writ Petitioner between the years 1998 and the date of this particular letter
in the year 2002, he had not made any representation seeking regularisation
of his service which he had put in from 1986 onwards.
9.Subsequently, in the year 2006, the Government had passed
G.O(Ms)No.60, Rural Development and Panchayat Raj Department, dated
23.06.2006, wherein, the Government had again given effect to the scheme
of bringing into regular service those who were under daily wage basis, thus
putting an end to the effect of the letter dated 27.09.2002. It was on that
basis that the Writ Petitioner was brought into regular service from
23.06.2006. Even though this is a factor to be considered and even though
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the learned Counsel for the first respondent/Writ Petitioner stated that it was
only owing to administrative delay on the part of the appellants that the
petitioner's service was not brought into regular service, we would point out
that the onus was on the first respondent/Writ Petitioner to have made a
representation between the year 1998 and 2002 to seek regularisation.
10.Unfortunately, the decision of the Hon'ble Full Bench now holds
the fort. The Hon'ble Full Bench had answered the issue of regularisation
by stating that those who were brought into regular service on and after
01.04.2003, would not be entitled to seek half of their past service to be
counted for qualifying service for pensionary benefits. This judgment of the
Full Bench had also been affirmed by the Hon'ble Supreme Court in an
appeal taken by one of the affected persons in S.L.P(Cvil) Diary No.15406
of 2021, M.Varghese -vs- State of Tamil Nadu and others, wherein, the
Hon'ble Supreme Court had refused to entertain the challenge to the
judgment of the of the Full Bench and had dismissed the appeal.
11.In view of the binding nature of the judgment pronounced by the
Hon'ble Full Bench, we hold that the Writ Appeal will necessarily have to
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be allowed and the judgment of the learned Single Judge dated 09.07.2018
will have to be set aside. Accordingly, the Writ Appeal stands allowed by
setting aside the order of the learned Single Judge insofar as W.P(MD)No.
6789 of 2017 is concerned. However, there shall be no order as to costs.
Consequently, connected miscellaneous petition is closed.
[C.V.K., J.] & [J.S.N.P., J.]
03.09.2024
Internet :Yes/No
Index :Yes/No (2/3)
NCC :Yes/No
cmr
To
The Assistant Director,
Local Fund Audit, Theni District, Theni.
https://www.mhc.tn.gov.in/judis
C.V.KARTHIKEYAN, J.
AND
J.SATHYA NARAYANA PRASAD, J.
cmr
Judgment made in
03.09.2024
(2/3)
https://www.mhc.tn.gov.in/judis
