Madras High Court
S.Sornam vs The Government Of Tamilnadu on 4 April, 2025
Author: Battu Devanand
Bench: Battu Devanand
W.P.Nos.16606, 14895, 15221, 17319, 18418, 20086,
20174, 20175 and 22601 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 09.01.2025
PRONOUNCED ON : 04.04.2025
CORAM
THE HON'BLE MR. JUSTICE BATTU DEVANAND
W.P.Nos.16606, 14895, 15221, 17319, 18418, 20086,
20174, 20175 and 22601 of 2018
and WMP.No.16606 of 2018
W.P.No.16606 of 2018
1. S.Sornam
2. E.Ramanibal
3. P.Radha
4. T.Y.Maharani
5. S.Subbulakshmi
6. A.Thaherunisha Begum
7. V.Devamani
8. V.Loganathan
9. C.Rameswari
10.R.Thilagavathy
11.M.Fathima Angel ... Petitioners
Vs.
1. The Government of Tamilnadu
represented by the Secretary to the Government,
Finance (Pay Cell) Department,
Fort St. George, Chennai 600009.
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2. The Collector,
Chennai, Chennai District.
3. The Commissioner,
Corporation of Chennai,
Ripon Building, Chennai 600003. ... Respondents
PRAYER: Writ Petitions filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus to call for the records
relating to the impugned order of the first respondent in G.O.Ms.No.314,
Finance (Pay Cell) Department dated 25.10.2017 and quash the same and
direct the respondents to revise the pension and family pension of the
petitioners by adopting the same methodology as adopted for the employees
on time scale of pay prescribed in G.O.Ms.No.313, Finance (Pay Cell)
Department, dated 25.10.2017 and give notional effect from 01.01.2016 or
date of entitlement to pension/family pension whichever is later with
monetary benefit from 01.10.2017 and grant all consequential benefits.
For Petitioners : Mr.P.Rajendran
For RR1 & 2 : Mr.J.Ravindran,
Additional Advocate General
assisted by
Mr.V.Baranidharan,
Additional Government Pleader &
Mr.Azizulla Khan,
Government Advocate
For R3 : M/s.T.Rama Devi
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20174, 20175 and 22601 of 2018
COMMON ORDER
These Writ Petitions have been filed to quash the impugned order of
the first respondent in G.O.Ms.No.314, Finance (Pay Cell) Department
dated 25.10.2017 and direct the respondents to revise the pension and family
pension of the petitioners by adopting the same methodology as adopted for
the employees on time scale of pay prescribed in G.O.Ms.No.313, Finance
(Pay Cell) Department, dated 25.10.2017 and give notional effect from
01.01.2016 or date of entitlement to pension/family pension whichever is
later with monetary benefit from 01.10.2017 and to grant all consequential
benefits.
2. The brief facts as per the averments made in the affidavit of
the Writ Petitions:
i) The petitioners are retired Noon Meal Organisers/Anganwadi
Workers, Child Welfare Organisers, Cooks, Cook Assistants and Anganwadi
Helpers respectively. Some of them retired before 01.01.2016 and others
retired after 01.01.2016. In the meanwhile, the Government of Tamil Nadu
issued G.O.Ms.No.40, Finance (Pay Cell) Department, dated 22.02.2017
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constituting an Official Committee to examine and make recommendations
on revision of scales of pay and allowances for State Government employees
and teachers including employees of local bodies and revision of pension,
family pension and retirement benefits based on the decision of the
Government of India on the recommendations of the 7 th
Central Pay Commission and the High Level Committee constituted by it for
revision of allowances other than dearness allowance. The official
committee submitted its report to the Government on 27.09.2017 and the
Government accepted the recommendations of the Official Committee, 2017
and issued G.O.Ms.No.303, Finance (Pay Cell) Department, dated
11.10.2017.
ii) By the said Government Order, the existing system of pay band
and grade pay applicable to the State Government employees and teachers
including employees of local bodies were replaced by a new system of level
based Pay Matrix in a manner similar to that which was adopted by the
Government of India for its employees. Under Schedule-I and Schedule-II of
the Tamil Nadu Revised Pay Rules 2017, the pay levels for Government
employees on time scales of pay and employees on special time scales of
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pay respectively corresponding to their grade pay under the existing system
are indicated. Schedule III and Schedule IV contain the Pay Matrix for
employees on time scales of pay and employees on special time scales of
pay respectively. In paragraph 7 of the said G.O., it was stated that fitment
factor of 2.57 shall be applied uniformly to all employees while fixing pay
of existing employees in the Pay Matrix, irrespective of the present grade
pay or corresponding new levels. For the purpose of fixing pay in the pay
matrix, Pay plus Grade Pay of an employee at any level as on 01.01.2016
(Pay in the pay band plus Grade Pay) shall be multiplied by a factor of 2.57.
In paragraph 21 of the said G.O., it was directed that the methodology that
has been adopted in arriving at the Pay Matrix for the employees on the time
scales has to be adopted for the employees on special time scales of pay. The
posts of Noon Meal Organisers, Cooks and Cook Helpers are all under
Special Time Scales of pay. It was further stated in paragraph 22 of the said
G.O. that the employees on special time scale of pay shall be granted the
same percentage of dearness allowance as applicable to employees on time
scales of pay from time to time and these employees shall also be entitled
for House Rent Allowance, City Compensatory Allowance, Medical
Allowance, and other Allowances along with annual increment as applicable
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to the employees on time scales of pay from time to time.
iii) Thereafter, the Government issued orders in G.O.Ms.No.313,
Finance (Pay Cell) Department, dated 25.10.2017 revising pension and
family pension and retirement benefits based on the recommendations of the
Official Committee 2017. Paragraphs 5 to 13 of the said order apply to the
employees who had retired or died before 01.01.2016 and paragraphs 15 to
25 apply to the employees who had retired or died on or after 01.01.2016.
(a) In paragraph 5 of the said order, it was directed that the
pension/family pension including enhanced family pension
relating to the employees who retired or died while in service
before 01.01.2016 shall in the first instance be revised in the
following manner:
“The existing pension/family pension/enhanced pension
family pension as on 31.12.2015 including the commuted
portion but excluding additional pension applicable to
pensioners/family pensioners of age 80 years and more shall be
multiplied by a factor of 2.57 and rounded off to the next
higher ten rupee to arrive at the revised pension/family
pension/enhanced family pension”
(b) In paragraph 15 of the said order, it was stated that
pension of a Government employee who retired on or after
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01.01.2016 shall be determined as follows:
“full pension shall be 50% of the pay last drawn in
applicable level in the revised pay structure (excluding
dearness allowance but including dearness pay, if applicable”
by the Government employee or 50% of the average
emoluments drawn during the last 10 months of service
rendered whichever is higher”
(c) In paragraph 30 of the said order, it was further stated
that revision of pension and family pension as per the said order
shall take notional effect from 01.01.2016 or date of entitlement
to pension/family pension whichever is later and shall have
monetary effect only from 01.10.2017.
iv) The Government issued another order in G.O.Ms.No.314, Finance
(Pay Cell) Department dated 25.10.2017 revising special pension/special
family pension/lump sum grant to the Noon Meal Workers, Anganwadi
Workers and Village Panchayat Secretaries. By the said order, the pension
of Noon Meal Organiser was revised from Rs.1500/- to Rs.2000/- and the
existing monthly pension of cooks/cook assistants was revised from
Rs.1500/- to Rs.2000/-. The lump sum payment was revised from
Rs.60,000/- to Rs.1 lakh in the case of Noon Meal Organisers and from
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Rs.25,000/- to Rs.50,000/- in the case of Cooks/Cook Assistants. It was
further stated that the said order revising pension/family pension and lump
sum amount shall take effect from 01.10.2017.
v) It can be seen from the above that in the matter of pay revision for
the Special Time Scale posts, the Government followed the same
methodology as followed in the case of Regular Time Scale Posts. However,
in the case of revision of pension for the Special Time Scale posts, the
Government has not applied the same methodology as applied in the case of
Regular Time Scale posts. Therefore, the said Government Order namely
G.O.Ms.No.314, Finance (Pay Cell) Department dated 25.10.2017 is
discriminatory, violative of Articles 14 and 16 of the Constitution of India
and liable to be set aside. Hence, the present Writ Petitions have been filed.
3. Averments in the counter affidavit of respondent No.1:
i) It is stated that certain categories of posts such as Noon Meal
Organisers, Cooks and Cook Assistants have been conferred with different
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special time/non-standard scale of pay and their scales of pay were also
maintained outside the pay structure of standard scales of pay of regular
employees. These categories were earlier on consolidated pay/fixed
pay/honorarium and they they were shifted to special time scale. This has
been done to accommodate employees who mostly do not have full time
assignments like regular Government employees. Further, these employees
are being granted the same percentage of Dearness Allowance revision as
sanctioned to regular Government employees from time to time along with
House Rent Allowance, City Compensatory Allowance, Medical Allowance,
Other Allowances (Hill Allowance, Winter Allowance etc.) and annual
increment, as applicable to regular Government employees.
ii) It is stated that all retired Noon Meal Organisers, Cooks and Cook
Assistants were provided with a special monthly pension of Rs.700/-,
Rs.600/- and Rs.500/- with effect from 15.09.2008. This special pension has
been enhanced to Rs.1000/- per month irrespective of all categories with
effect from 01.04.2013 and further enhanced at Rs.1500/- per month with
effect from 01.02.2016. At the time of their retirement, a lumpsum amount
of Rs.50,000/- was provided to the Noon Meal Organiser and Rs.20,000/- to
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the Cook and Cook Assistant. Further, this amount has been enhanced to
Rs.60,000/- to the Noon Meal organisers and Rs.25,000/- to Cook and Cook
Assistants since February 2016.
iii) It is further stated that the employees who retired in Special Time
Scale of Pay do not come under the Tamil Nadu Pension Rules, 1978 and
they are not eligible for Dearness Allowance as sanctioned to the pensioners
who retired in Regular Time Scale of Pay. Hence, the orders issued in
G.O.Ms.No.313, Finance (PC) Department, dated 25.10.2017 is not
applicable to the petitioners. Therefore, in respect of their revision of Special
Pension/Special Family Pension/Lumpsum Grant separate orders have been
issued in G.O.Ms.No.314, Finance (PC) Department, dated 25.10.2017 and
G.O.Ms.No.348, Finance (PC) Department, dated 28.11.2017. It is further
stated that as per G.O.Ms.No.314, Finance (PC) Department, dated
25.10.2017 the Special Pension of Noon Meal Organisers/Cooks/Cook
Assistants have been revised from Rs.1,500/- to Rs.2,000/- and their
Lumpusm Payment has been revised from Rs.60,000/- to Rs.1,00,000/- in
the case of Noon Meal Organisers and from Rs.25,000/- to Rs.50,000/- in
the case of Cooks/Cooks Assistants. Similar revision has been extended to
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all other employees in Special Time Scale of Pay vide G.O.Ms.No.348,
Finance (PC) Department, dated 28.11.2017.
iv) It is stated that the employees in Regular Time Scale of Pay and in
Special Time Scale of Pay and the pensioners/family pensioners coming
under the Tamil Nadu Pension Rules, 1978 were getting Dearness
Allowance revision sanctioned from time to time and Dearness Allowance
sanctioned at 125% on 01.01.2016 were taken into account for the purpose
of revision of their pay and pension with effect from 01.01.2016. Since the
existing rate of Dearness Allowance is neutralised with the multiplying
factor 2.57 with effect from 01.01.2016, the similar multiplying factor shall
not be applied for revision of the Special Pension of the Pensioners who
retired in Special Time Scale of Pay as they were not getting Dearness
Allowance under the Tamil Nadu Pension Rules, 1978.
v) It is stated that the Noon Meal Organisers, Cooks and Cook
Assistants are not regular employees and they do not come under
Tamil Nadu Pension Rules, 1978. They were granted Special Pension only
with effect from 15.09.2008, duly considering to provide livelihood after
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their retirement. Initially, they were provided Special Pension at Rs.700/-,
Rs.600/- and Rs.500/-. Prior to revising this Special Pension at Rs.2000/-
with effect from 01.10.2017, based on the recommendations of the Official
Committee 2017, it was enhanced two times already i.e. to Rs.1000/- per
month with effect from 01.04.2013 and further at Rs.1500/- per month with
effect from 01.02.2016.
vi) It is further stated that the total number of Special Pensioners who
retired as Anganwadi and Nutritious Meal Programmer are 87409. If their
Special Pension is revised based on the fitment factor 2.57, there will be an
additional financial commitment of Rs.195 Crore p.a. in respect of Special
Pensioners of Anganwadi and Nutritious Meal Programmer alone. Further, if
this fitment factor is extended to other Special Pensioners mentioned in
G.O.Ms.No.348, Finance (PC) Department, dated 28.11.2017, it will lead to
huge additional financial commitment to the State Exchequer.
4. Averments in the counter affidavit of respondent
No.2/Collector in W.P.No.18418 of 2018:
i) It is stated that the post of noon meal organizer, cook and helper in
the Anganwadi Centres are not created by any rule framed under Article 309
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of Constitution of India and it is not a constituted service. Nevertheless,
since the Government took over to maintain the entire scheme and had
created separate ministry for administering the scheme bearing the entire
cost of the scheme, including food provisions, utensils and overhead
expenditure, it is nonetheless a public employment and they are scheme
employees. The regular service benefits as that of government employees
are not applicable to those scheme employees like the petitioners herein.
ii) It is further stated that all the Child Welfare Organizers, Child
Welfare Assistants, Nutritious Meal Organizers, Cooks and Helpers
employed under the programme, were made permanent part-time employees
of the respective local bodies, viz., Panchayats, Panchayat Union,
Municipalities and Municipal Corporations vide G.O.Ms.No.370, Backward
Classes Welfare, Nutritious Meal Programme and Social Welfare
Department, dated 16.04.1989.
iii) It is further submitted that the entire service of noon meal workers
are permanent part-time and these programme employees are not regular
government servants and thus they are not paid the scale of pay applicable to
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regular Government servants and the schemes are non-pensionable
establishment. Therefore, they are not covered by the Tamil Nadu Pension
Rules. The petitioners are scheme employees and the Government after
considering their nature of service conditions, granted special pension and
lumpsum payment by the Government Order in G.O.Ms.No.314, Finance
(PC) Department, dated 25.10.2017 in compliance of the recommendation of
the Official Committee. Therefore, the petitioners cannot be treated as
regular employees of State Government and they are not entitled under
G.O.Ms.No.313 and the benefits granted under G.O.Ms.No.314 is not
discriminatory.
5. Averments in the counter affidavit of respondent No.2/District
Collector in WP.No.20174 of 2018:
i) It is stated that the service conditions of each of the petitioners and
their quantum of wages and pension are entirely different from each others
and there is no joinder of cause of action survive for the petitioners and
hence the petitioners ought to have filed writ petitions independently.
ii) It is further stated that the revision of pay and pension of the Noon
Meal Organisers and Anganwadi Workers being done on adhoc basis as per
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the recommendation of the Committee and they are never treated on par
with Government servants either for appointments or for monetary benefits
including pension. It is further stated that the petitioners are not entitled to
claim pension benefits on par with the government employees as their nature
of appointment and conditions of service are entirely different from the
Government employees. Moreover, the petitioners are granted pension
benefits on adhoc basis. G.O.Ms.No.303, Finance (Pay Cell) Department,
dated 11.10.2017 has separately dealt with the revision of pay and pension
of the Noon Meal Workers and Anganwadi workers as they are coming
under the category of employees recruited under a scheme and it does not
say that those employees are also entitled to benefit on par with the
Government employees and teachers. Moreover, employees like petitioners
are never treated as persons on special time scale of pay.
6. Averments in the counter affidavit filed by the second
respondent/Collector in WP.No.14895 of 2018:
The petitioners were not governed by any service rules. There is no
Rule governing their employment. The petitioners were only part time
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employees as Noon Meal Organisers and not full time employees. The very
post of Noon meal Organiser is an adhoc/temporary/transitory one and not
permanent nature. The petitioners were only part time employees under
Special Time Scale and they are not entitled to get benefits as regular
Government employees stated in G.O.Ms.No.313, dated 25.10.2017.
Therefore, there is no ground made out to quash the G.O.Ms.No.314,
Finance (Pay Cell) Department, dated 25.10.2017.
7. Submissions of learned counsel for the petitioner:
i) The learned counsel for the petitioners submitted that the Noon
Meal Scheme was started on 01.07.1982 in rural areas and later it was
extended to urban areas. The appointments are made by the District
Collector following the Rule of Reservation. G.O.Ms.No.163, Social
Welfare Department, dated 18.08.2010 contains the rules for appointment.
As per the G.O., only women would be appointed and 25% of the approved
posts shall be filled up by widows/destitutes, who fulfil the age limit,
educational qualification and distance criteria. The Noon Meal Organisers,
Cooks and Cook Assistants retires from service after rendering 25 to 30
years.
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ii) The learned counsel for the petitioners further submitted that the
petitioners are being granted the same percentage of Dearness Allowance
revision as sanctioned to regular Government employees from time to time
along with House Rent Allowance, City Compensatory Allowance, Medical
Allowance, etc., and annual increment as applicable to regular Government
employees. He further submitted that since compassionate appointment,
voluntary retirement, maternity leave, dearness allowance, house rent
allowance, city compensatory allowance, medical allowance, annual
increment etc., are granted to these employees as applicable to regular
Government employees, the contention of the respondents that these
employees are not regular employees cannot be accepted.
iii) The learned counsel further contended that the post of Noon Meal
Organiser is a Civil Post and the said post is a substantive post and the
holders of this post are entitled to get protection under Article 311 (2) of the
Constitution of India. In support of his contention, he relied on the following
judgments:
1) G.Periannan vs. the Government of Tamil Nadu and
others reported in 2007 (3) CTC 806;
2) The District Collector, Villupuram vs. M.Eganathan in
W.A.No.938 of 2014, dated 17.07.2017.
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iv) The learned counsel for the petitioners further submitted that the
petitioners are not falling under any of the exceptions as given in Rule 2 of
the Tamil Nadu Pension Rules, 1978. Hence, prima facie the petitioners are
covered by the provisions of the Tamil Nadu Pension Rules, 1978.
v) The learned counsel for the petitioners further contended that when
the employees were in service, they were paid dearness allowance as paid to
regular time scale posts. The same has been admitted in paragraph 7 of the
counter affidavit filed by the first respondent, which reads as follows:
“7. ...... Further, these employees are being granted the same
percentage of dearness allowance revision as sanctioned to
regular Government employees from time to time along with
House Rent Allowance, City Compensatory Allowance,
Medical Allowance, other Allowances (Hill Allowance, Winter
Allowance etc.) and annual increment as applicable to regular
Government employee”.
Therefore, when the Government grants Dearness Allowance on pay when
they were in service, the non-payment of dearness allowance on pension is
unjustified. The Government cannot take advantage of their own wrong and
plead that the pension cannot be revised since they are not paid dearness
allowance on pension. In support of his contention, the learned counsel for
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the petitioners relied on a judgment of the Hon'ble Supreme Court in
The State of Gujarat & Ors. vs. Talsibhai Dhanjibhai Patel reported in
2022 LiveLaw (SC) 187, wherein it is held that the State cannot take
advantage of its own wrong and deny pension to an ad-hoc employee, who
retired after rendering more than 30 years of service.
vi) The learned counsel for the petitioners submitted that the
petitioners are already receiving pension and it is not a new benefit and the
issue is regarding the revision of existing pension. Since pension is deferred
portion of the compensation (salary or wages), when pay is revised by
following the same methodology as adopted in the case of regular pay, the
revision of pension should also be done by following the same methodology.
There is a correlation between pay and pension. Therefore, not following the
same methodology as adopted in the revision of pay is unjustified and
ureasonable.
8. Submissions of learned Additional Advocate General appearing
for respondents 1 and 2:
i) He would submit that the Noon Meal Organizers and Anganwadi
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Workers are classified as permanent part-time employees and are not
governed by any service rules as per G.O.Ms.No.370, Backward Classes
Welfare, Nutritious Meal Programme & Social Welfare Department, dated
16.04.1989. The said Government order clearly stipulates as follows:
“The Government have sanctioned the creation of 3360
temporary posts of part-time Nutritious Meal Organisers,
cooks and helpers for appointment in school feeding centers
thereby extending the scheme to school children in the age
group of 10 to 15 from 15th September 1984. Thus, the persons
employed under the Nutritious Meal Programme mentioned
above are only part-time workers not governed by any service
rules.”
ii) He further submitted that G.O.Ms.No.408, Finance (Pension)
Department, dated 25.08.2009 clearly establishes that the service rendered in
non-provincialised service, consolidated pay, honorarium and daily wage
basis shall be in a job involving whole time (full time) employment. Here
the petitioners are appointed as Child Welfare Organizer / Noon Meal
Organizer / Anganwadi Worker which is a part-time job and absorbed into
the regular post only after 01.04.2003. Hence, the petitioners become
ineligible for counting 50% of the service rendered as Child Welfare
Organizer / Noon Meal Organizer / Anganwadi Worker along with the
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regular service.
iii) He further submitted that the Noon Meal Organisers, Cooks and
Cook Assistants are not regular employees and they do not come under
Tamil Nadu Pension Rules, 1978. The pensioners, who retired on Special
Time Scale of Pay, were not getting Dearness Allowance and are not
covered under Tamil Nadu Pension Rules. He further submitted that if the
Special Pension is revised based on the Fitment Factor 2.57 it will lead to
huge additional financial commitment to the State Exchequer.
iv) He also contended that in the present case, the petitioners are
permanent part time employees and they do not hold any civil post. Further
with regard to calculate half of their temporary service along with regular
service towards calculation of pension, he relied on the judgment of the Full
Bench of this Court, dated 03.12.2019, in W.A.No.158 of 2016 etc. batch
and the relevant portion of the said judgement reads 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 W.A.No.158 of 2016 etc.,
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batch 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
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 W.A.No.158 of 2016 etc., batch 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."
v) He further submitted that with regard to the contention of the
learned counsel for the petitioners that there is no definition of “Pensionable
Service” in Tamil Nadu Pension Rules, 1978, the term “non-pensionable
establishment” has not been explicitly defined in the Tamil Nadu Pension
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Rules, 1978. However, rule 2 of the Tamil Nadu Pension Rules, 1978
provides that these rules shall apply to all Government Servants appointed to
services and posts in connection with the affairs of the State which are borne
on pensionable establishments. Since the petitioners do not fall under Tamil
Nadu Pension Rules, 1978, the petitioners claim to revise the pension and
family pension on par with the Government servants is not maintainable.
9. Analysis and Findings:
Admittedly, all the petitioners are working as Noon Meal Organisers.
Some of them retired before 01.01.2016 and others retired after 01.01.2016.
It is also an admitted fact that selection to the post of Noon Meal Organisers
was made by the authorities of the State. The salary was paid to the Noon
Meal Organisers out of the funds of the State Government. The powers of
appointment, transfer and postings of the Noon Meal Organisers are
exercised by the Government authorities. Even though the post of Noon
Meal Organiser is not a regular post created under any statute, but that post
was created under Government orders. The said post is a permanent post and
all the persons appointed as Noon Meal Organisers were given special time
scales of pay. The Noon Meal Scheme was started on 01.07.1982 in rural
areas and later extended to urban areas of the State of Tamil Nadu. Various
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orders have been issued in connection with the appointment of Nutritious
Meal Organisers, Cooks and Cook Assistants in respect of Puratchi
Thalaivar M.G.R. Nutritious Meal Programme.
10. The State Government after making review has issued orders in
G.O.Ms.No.163, Social Welfare and Nutritious Meal Programme (NMP.2)
Department, dated 18.08.2010, prescribing certain procedures for direct
recruitment of Noon Meal Organisers, Cooks and Assistants viz.,
educational qualification, age and distance criteria. For appointment of Noon
Meal Organisers, advertisement regarding vacancies in School Nutritious
Meal Centre should be made by the Commissioner of Panchayat Union /
Municipal Commissioner / Commissioner of Corporation or by the District
Collector prescribing the educational qualification, age, distance criteria and
other qualifications to be possessed by the applicants. After receipt of the
applications from the eligible candidates, the notifying authorities should
verify the same and conduct interviews and send those files to Collector and
after getting approval from him, appointment orders will be issued to the
selected candidates. Only women should be appointed in Nutritious Meal
Scheme for different posts and 25% of approved posts shall be filled by
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widows / destitutes. With regard to the appointment of Nutritious Meal
Organization, the existing rule of reservation should be followed by
considering the entire district as one unit for appointment of Cook and
Assistant. Before issuing appointment orders, approval of the Personal
Assistant to District Collector (NMP) should be obtained. For Chennai
Corporation limit, approval should be obtained from Commissioner of
Social Welfare. The distance between the applicant's residence and the place
of work should be within 3 Kms (Panchayat-Hamlet-Revenue Village need
not be taken into account). The Assistants shall be promoted as Cooks based
on their qualifications.
11. The State Government issued orders in G.O.Ms.No.2 Social
Welfare and Nutritious Meal Programme Department, dated 03.01.1996
granting time scale to the persons working in Nutritious Meal Programme.
Subsequently, the Secretary to Government Social Welfare and Nutritious
Meal Programme (NMP-2) Department, addressed a letter dated 12.04.1996
to all the District Collectors (except Madras), wherein it is clarified that the
power to appoint or transfer Nutritious Meal Organisers, which was vested
with the Government, has been delegated to the District Collector
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concerned.
12. The State Government, vide G.O.Ms.No.6, Social Welfare and
Nutritious Meal Programme Department, dated 22.01.2009, has clarified the
eligibility for compassionate appointments for Nutritious Meal and Child
Center employees. The State Government, vide G.O.Ms.No.37, Social
Welfare and Nutritious Meal Programme (SW 4-2) Department, dated
30.04.2015, provided Hill Allowance and Winter Allowance to Nutritious
Meal Programme Workers working at notified Hill areas. In
G.O.(Ms).No.38, Social Welfare and Nutritious Meal Programme (SW 4-2)
Department, dated 30.04.2015, the State Government has decided to
sanction special increment and biennial increment as stagnation increment to
Nutritious Meal Programme Employees, who served in a single post for
10/20/30 years. In G.O.(Ms).No.42, Social Welfare and Nutritious Meal
Programme (SW 4-2) Department, dated 30.04.2015, the State Government
permitted Nutritious Meal Programme employees to go on Voluntary
Retirement with benefits as per the rules. In G.O.(Ms).No.43, Social
Welfare and Nutritious Meal Programme (SW 4-2) Department, dated
06.05.2015, the State Government enhanced the paid absence on Maternity
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Leave from 90 to 180 days to the employees of the Nutritious Meal
Programme.
13. On careful perusal of all these Government Orders issued by the
State Government, it is clear that the State Government provides
Compassionate Appointment, Voluntary Retirement, Maternity Leave,
Dearness Allowance, House Rent Allowance, City Compensatory
Allowance, Medical Allowance and Annual Increment to the employees
working in the Noon Meal Scheme on par with the Government employees,
and therefore, the contention of the respondents that the employees working
in the Noon Meal Scheme are not regular employees is unsustainable and
untenable.
14. In G.Periannan vs. The Government of Tamil Nadu reported in
2007 (3) CTC 806, a learned Single Judge of this Court held that the Noon
Meal Organiser post is a Civil Post and therefore Noon Meal Organiser is
entitled for protection under Article 311(2) of the Constitution of India. The
relevant paragraphs of the said judgment is extracted hereunder:
“13. The Honourable Supreme Court in the decision reported
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State of U.P. and others v. Chandraka Prakash Pandey and
others, 2001 (4) SCC 78, considered similar issue as to the
holder of civil post and in paragraph 10 held thus,—
“10. The question as to when a person can be said to be
holder of a civil post has been the subject-matter of
consideration before this Court on numerous occasions.
In the case of State of Assam v. Kanak Chandra Dutta a
Constitution Bench of this Court was considering a case
where a Mauzadar was appointed for collection of land
revenue under the Mauzadari system prevailing in the
Assam Valley whose primary duty was to collect land
revenue and other Government revenues. He was
working as Revenue Officer and ex officio Assistant
Settlement Officer exercising delegated powers of the
Government and the State had the power and right to
select and appoint him inasmuch as power to suspend
and dismiss. The Mauzadar was drawing not a regular
salary but commission by way of a remuneration. The
Court observed that there must be existence of
relationship of master and servant between the State and
its employees and such a relationship can be established
by presence of all or some of the ingredients. After due
consideration of the entire matter, the Court laid down
the law as follows: (AIR pp. 886-87, paras 11-13)
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11. Judged in this light, a Mauzadar in the Assam Valley
is the holder of a civil post under the State. The State has
the power and the right to select and appoint a
Mauzadar and the power to suspend and dismiss him. He
is a subordinate public servant working under the
supervision and control of the Deputy Commissioner. He
receives by way of remuneration a commission on his
collections and sometimes a salary. There is a
relationship of master and servant between the State and
him. He holds an office on the revenue side of the
administration to which specific and onerous duties in
connection with the affairs of the State are attached, an
office which falls vacant on the death or removal of the
incumbent and which is filled up by successive
appointments. He is a responsible officer exercising
delegated powers of Government. Mauzadars in the
Assam Valley are appointed Revenue Officers and ex
officio Assistant Settlement Officers. Originally, a
Mauzadar may have been a revenue farmer and an
independent contractor. But having regard to the
existing system of his recruitment, employment and
functions, he is a servant and a holder of a civil post
under the State.
12. Counsel for the State stressed the fact that normally
a Mauzadar does not draw a salary. But a post outside
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the regularly constituted services need not necessarily
carry ‘a definite rate of pay’. The post of a Mauzadar
carries with it a remuneration by way of a commission
on collections of Government dues. Counsel stressed the
fact that a Mauzadar is not a wholetime employee. But a
post outside the regularly constituted services may be a
part-time employment. The conditions of service of a
Mauzadar enable him to engage in other activities.
13. In Venkata Swamy v. Supdt. of Post Offices, the
Orissa High Court held, on a consideration of the
relevant conditions of employment, that a temporary
Extra-departmental Branch Postmaster was not a person
holding a civil post, but the observation in that case that
a part-time employee cannot be the holder of a civil post
outside the regularly constituted services is too wide and
cannot be supported.”
14. Applying the above principles, laid down in the above cited
decision and various other judgments relied on in the said
judgment, to the facts of this case and having regard to the fact
that the petitioner was appointed as Noon-meal Organiser in
terms of the Government Order issued and the posting and
transfer orders of the posts having been issued by the officials
of the State and the salary of the petitioner having been paid
from the State funds allocated under the budget allocation, I
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am of the firm view that the Noon-meal Organiser post is a
civil post and therefore Noon-meal Organiser is entitled to
have protection under Article 311(2) of the Constitution of
India, which clearly states that no person, who is a member of
a civil service of the Union or a State or holds a civil post
under the Union or a State shall be dismissed or removed or
reduced in rank except after an inquiry in which he has been
informed of the charges against him and given a reasonable
opportunity of being heard in respect of those charges.
15. The said view was confirmed by a Division Bench of this Court
by its judgment dated 17.07.2014 in W.A.No.938 of 2014 in the District
Collector, Villupuram District vs. M.Eganathan.
16. Admittedly, the findings of this Court that Noon Meal Organiser
post is a Civil Post of the State Government and the person holding the said
post is entitled for protection under Article 311(2) of the Constitution of
India has become final. As such, the contention of the respondents that the
employees working in the Noon Meal Scheme cannot be treated as regular
employees, is untenable since this Court has already held that the said post is
a Substantive Post and a Civil Post.
17. With respect to the contention of the respondents that the Noon
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Meal Organisers, Cooks and Cook Assistants do not come under the Tamil
Nadu Pension Rules, 1978, on careful examination of Rule 2 of the Tamil
Nadu Pension Rules, 1978, which deals with the applicability of the Pension
Rules, the petitioners are not falling under any of the the exceptions
provided under Rule 2. Admittedly, pensionable establishment has not been
defined under the Tamil Nadu Pension Rules 1978. However, while dealing
with a case regarding nature of appointment of Fast Track Court Judges, the
Apex Court in K.Anbazhagan and another vs. Registrar General, High
Court of Madras and another reported in (2018) 9 SCC 293 held that the
appointment of the appellants therein (Fast Track Court Judges) was in
pensionable establishment. The relevant paragraphs of the said judgment are
extracted hereunder:
“27. The first issue to be answered is as to whether the
appointments of Appellants were appointment on 'pensionable
establishment' or not. The expression 'pensionable
establishment' is not defined under the 1978 Rules. Rule 2 of
1978 Rules which provides for application of Rules is as
follows:
2. Application: Save as otherwise provided in
these rules, these Rules shall apply to all
Government Servants appointed to Services and
posts in connection with the affairs of the State
which are borne on pensionable establishments,
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whether temporary or permanent, but shall not
apply to-
a) Persons in causal and daily rated employment;
b) Persons paid from contingencies;
c) Persons employed on contract except when the
contract provides otherwise;
d) Members of the All-India Services;
e) Persons who are entitled to the benefits under
the Factories Act, 1948 and the Employees
Provident Fund Act, 1952 excluding those who are
governed by Statutory Services Rules and belong
to pensionable service.
28. The expression 'pensionable establishment' has been used
in Rule 2. Rule 11 Sub-rule (3) also uses the expression 'non-
pensionable establishment'. An indication in chapter 12 of the
Rules i.e. Rule 84 is given that service paid for from a Local
Fund does not qualify for pension which indicates that services
paid for from a Local Fund are services in 'non-pensionable
establishment'. For the purposes of this case, we have to only
consider as to whether the establishment where Appellants
were appointed and working was a 'pensionable establishment'
or 'non-pensionable establishment'.
29. We have noticed above the Government Order dated
18.12.2001 by which the State Government created nineteen
Fast Track Courts of District Judges (Additional District
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Judges) in the pay scale of Rs. 15000-18600. The Appellants in
their appointment Order dated 14.02.2002 were also referred
to as having been appointed as Additional District and
Sessions Judges (Fast Track Courts) on ad-hoc basis. The
appointment order further provided that the Appellants as
Additional District and Sessions Judges will draw a pay in the
scale of Rs. 15000-400-18600 and other usual allowances. The
Appellants were appointed in the Judicial establishment of the
district and were part of the Subordinate Courts under the
control of the High Court. Clause 9 of the Government Order
dated 18.12.2001 read as follows:
9. The expenditure involved in the proposal shall
be debited to 2014.00 Administration of Justice-
800-other Expenditure-II State Plan-JA Eleventh
Finance Commission-Upgradation and Special
Problem Grant setting up of additional courts for
disposal of long pending cases 0.9 Grants in Adl.
03. Other grants for Specific Scheme (D.P.C. No.
2014.00 800 JA 0934).
30. The payment of salary to the Appellants were made from
same sources by which other Additional District Judges and
other Judicial Officers of the State were being paid. There is no
indication from any of the material produced before us that the
Appellants were appointed on any different establishment than
the Judicial establishment of the District.
31. We have noticed above that this Court in Brij Mohan Lal v.
Union of India and Ors. in paragraph 10 of the judgment has
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directed that persons appointed under the Scheme (Fast Track
Courts Scheme) shall be governed, for the purposes of leave,
reimbursement of medical expenses, TA/DA and conduct Rules
and such other service benefits, by the Rules and Regulations
which are applicable to the members of the judicial services of
the State of equivalent status.
32. By direction 10(16), this Court had directed the State
Governments to ensure compliance, hence, the terms and
conditions of service of Appellants were same as those other
judicial officers of the State as per Order of this Court. High
Court in its judgment although observed that Fast Track
Courts cannot be said to have been created in 'pensionable
establishment' but said conclusion has been arrived without
considering relevant materials and without giving any cogent
reasons. We thus are of the view that appointment of
Appellants was in 'pensionable establishment'.”
18. In the light of the law laid down in the judgment of the Apex
Court stated supra, there is no substance in the contention of the respondents
that the petitioners do not come under the Tamil Nadu Pension Rules, 1978.
19. To substantiate his contentions, the learned Additional Advocate
General for the respondents, has drawn attention of this Court to the
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judgment of the Apex Court in the State of Karnataka and others vs.
Ammerbi and others in Appeal (civil) 4953-4957 of 1998. The relevant
paragraph of the said judgment is extracted hereunder:
“Anganwadi workers, however, do not carry on any
function of the State. They do not hold post under a statute.
Their posts are not created. Recruitment rules ordinarily
applicable to the employees of the State are not applicable in
their case. The State is not required to comply with the
constitutional scheme of equality as adumbrated under Articles
14 and 16 of the Constitution of India. No process of selection
for the purpose of their appointment within the constitutional
scheme existed. We do not think that the said decision has any
application in the instant case.”
But in the present case, the petitioners are appointed in terms of the
Government orders in the on going programme implemented by the State
Government. From the stage of issuing notification, appointing them under
various posts, till retirement, all the procedures were followed by the State
Government authorities like regular Government employees and their salary
was paid from the State funds allocated under budget allocation. The post of
Noon Meal Organiser was created under the Government Orders in exercise
of powers conferred under Article 162 of the Constitution of India and as
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such, the posts under Noon Meal Schemes are held to be substantive posts
under the Tamil Nadu Government. In the judgment of G.Periannan vs.
The Government of Tamil Nadu reported in 2007 (3) CTC 806 this Court
has already held that posts of Noon Meal Scheme are Civil Posts and they
are entitled to take protection under Article 311 (2) of the Constitution of
India. In view of the same, this Court is of the opinion that the reliance
placed by the learned counsel for the respondents is not applicable to the
facts and circumstances of the present case.
20. With respect to payment of Dearness Allowance, the learned
counsel for the petitioners submitted that when these employees were in
service, they were paid Dearness Allowance as paid to regular time scale
post. Since the Government granted Dearness Allowance of pay when they
were in service, the non-payment of Dearness Allowance on pension is
unjustifiable. The said contention of the petitioners has been admitted in
paragraph 7 of the counter affidavit filed by the first respondent, which is
extracted hereunder:
“7. ...... Further, these employees are being granted the same
percentage of dearness allowance revision as sanctioned to
regular Government employees from time to time along with
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House Rent Allowance, City Compensatory Allowance,
Medical Allowance, other Allowances (Hill Allowance, Winter
Allowance etc.) and annual increment as applicable to regular
Government employee”.
21. The learned counsel for the petitioners has drawn attention of this
Court to the judgment of the Apex Court on that aspect in the State of
Gujarat and others vs. Talsibhai Dhanjibhai Patel reported in (2022
LiveLaw (SC) 187 and submitted that the Government cannot take
advantage of their own wrong in not paying Dearness Allowance on pension
when it was paid throughout their service. The relevant paragraph of the said
order is extracted hereunder:
“It is unfortunate that the State continued to take the
services of the respondent as an ad-hoc for 30 years and
thereafter how to contend that as the services rendered by the
respondent are ad-hoc, he is not entitled to pension/pensionary
benefit. The State cannot be permitted to take the benefit of its
own wrong. To take the Service continuously for 30 years and
thereafter to contend that an employee who has rendered 30
years continues service shall not be eligible for pension is
nothing but unreasonable. As a welfare State, the State as such
ought not to have taken such a stand.”
22. In the present case also, the petitioners worked in the Noon Meal
Scheme for more than 25 to 30 years. As such, the Government cannot take
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advantage of their own wrong in not paying Dearness Allowance on pension
when it was paid throughout their service and contend that the pension
cannot be revised since they are not paid Dearness Allowance on pension.
23. The another contention of the respondents that the revision of
pension based on the fitment factor 2.57 will lead to huge financial burden
to the State Exchequer is unsustainable, in view of the fact that the
petitioners are already receiving pension and now their request is only to
revise the existing pension. On this aspect, to substantiate the stand of the
petitioners, the learned counsel for the petitioners has drawn attention of this
Court to the judgment of the Apex Court in All Manipur Pensioners
Association vs. State of Manipur and others reported in (2020) 14 SCC
625. The relevant paragraph of the said judgment is extracted hereunder:
“ 8.1 As observed hereinabove, and even it is not in
dispute that as such a decision has been taken by the State
Government to revise the pension keeping in mind the increase
in the cost of living. Increase in the cost of living would affect
all the pensioners irrespective of whether they have retired pre-
1996 or post1996. As observed hereinabove, all the pensioners
belong to one class. Therefore, by such a classification/cutoff
date the equals are treated as unequals and therefore such a
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classification which has no nexus with the object and purpose
of revision of pension is unreasonable, discriminatory and
arbitrary and therefore the said classification was rightly set
aside by the learned Single Judge of the High Court. At this
stage, it is required to be observed that whenever a new benefit
is granted and/or new scheme is introduced, it might be
possible for the State to provide a cutoff date taking into
consideration its financial resources. But the same shall not be
applicable with respect to one and single class of persons, the
benefit to be given to the one class of persons, who are already
otherwise getting the benefits and the question is with respect
to revision.”
24. In the present case, the grievance of the petitioners is that the
respondents are not adopting the same methodology to revise the pension
and family pension of the petitioners as adopted for the employees of on
time scales of pay and brought all consequential benefits.
25. The Government of Tamil Nadu in G.O.Ms.No.40, Finance (Pay
Cell) Department dated 22.02.2017 constituted an Official Committee to
examine and make recommendations for revision of scales of pay and
allowances for the State Government Employees and Teachers including
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employees of Local Bodies and also for revision of pension, family pension
and retirement benefits. As per the decision of the Government of India, on
the recommendations of the 7th Pay Commission, a High Level Committee
was constituted and it submitted its report to the Government on 27.09.2017.
The Government accepted the recommendations of the Official Committee
and issued orders in G.O.Ms.No.303, Finance (Pay Cell) Department, dated
11.10.2017. In the said order, the existing system of pay band and grade pay
applicable to the State Government Employees and Teachers including
employees of Local Bodies were replaced by a new system of level based
pay matrix in a manner similar to that adopted by the Government of India
for its employees.
26. In Schedule-I and Schedule-II of the Tamil Nadu Revised Pay
Rules, the pay levels for Government employees on time scales of pay and
employees on special time scales of pay respectively corresponding to their
grade pay under the existing system are indicated. Schedule III and IV of
Pay Rules 2017, contain the pay matrix for employees on time scale of pay
and employees on special time scales of pay respectively. At paragraph 7 of
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G.O.Ms.No.303, Finance (Pay Cell) Department, dated 11.10.2017, it was
stated that fitment factor of 2.57 shall be applied uniformly to all employees
while fixing pay of existing employees in the pay matrix, irrespective of the
present grade pay or corresponding new levels. For the purpose of fixing pay
in the pay matrix, Pay plus Grade Pay of an employee at any level as on
01.01.2016 shall be multiplied by a factor of 2.57. At paragraph 21 of the
said G.O., it is directed that the same methodology that has been adopted in
arriving at the pay matrix for the employees on time scales is being adopted
for the employees on special time scales of pay. Admittedly, the post of
Noon Meal Organisers, Cooks, Cook Helpers are all under Special Time
Scales of Pay.
27. At paragraph 22 of the said G.O., it is clarified that the employees
on special time scales of Pay shall be granted the same percentage of
Dearness Allowance as applicable to employees on time scales of pay from
time to time and these employees also be entitled to House Rent Allowance,
City Compensatory Allowance, Medical Allowance and other Allowances
along with annual increment as applicable to the employees on time scales
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of pay from time time. Thus it is clear that the Government has taken a
decision to adopt same methodology in arriving at the pay matrix of the
employees on special time scales of pay like the employees of time scales of
pay by issuing orders under G.O.Ms.No.303, Finance (Pay Cell)
Department, dated 11.10.2017.
28. Consequent to G.O.Ms.No.303, dated 11.10.2017 the State
Government issued orders in G.O.Ms.No.313, Finance (Pay Cell)
Department, dated 25.10.2017 revising pension and family pension and
retirement benefits. The said order applies to employees, who retired or died
before 01.01.2016. The Government issued another order in
G.O.Ms.No.314, Finance (Pay Cell) Department, dated 25.10.2017, revising
Special Pension / Special Family Pension / Lump sum grant to the Noon
Meal Workers, Anganwadi Workers and and Village Panchayat Secretaries.
By the said Government Order, the pension of Noon Meal Organiser was
revised from Rs.1,500/- to Rs.2,000/- and for Cooks and Cook Assistants, it
was revised from Rs.1,500/- to Rs.2,000/-. The lump sum payment was
revised from Rs.60,000/- to Rs.1,00,000/- in the case of Noon Meal
Organisers and from Rs.25,000/- to Rs.50,000/- in the case of Cooks and
Cook Assistants. The revision of pension/family pension and lumpsum
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W.P.Nos.16606, 14895, 15221, 17319, 18418, 20086,
20174, 20175 and 22601 of 2018
amount take effect from 01.10.2017.
29. On careful examination of G.O.Ms.No.313, Finance (Pay Cell)
Department, dated 25.10.2017 and G.O.Ms.No.314, Finance (Pay Cell)
Department, dated 25.10.2017, in the light of G.O.Ms.No.303, Finance (Pay
Cell) Department, dated 11.10.2017, it appears that while revising the pay
for the special time scale posts, the respondents followed the same
methodology as followed in the case of regular time scale posts. But the
same methodology has not been applied for revision of pension in the
special time scale posts on par with the regular time scale posts. The State
Government has accepted the recommendations of the Official Committee
2017 and issued G.O.(Ms.)No.303 Finance (Pay Cell) Department dated
11.10.2017, for adopting same methodology in arriving at the pay matrix for
the employees on time scales of pay is being adopted for the employees of
special time scales of pay. As such, issuing G.O.(Ms.)No.314, Finance (Pay
Cell) Department, dated 25.10.2017 without applying the same methodology
for revision of pension to the petitioners on par with the employees of time
scales of pay, prescribed in G.O.(Ms.)No.313, Finance (Pay Cell)
Department, dated 25.10.2017, is discriminatory, unjust, irrational and
violative of Article 14 and 16 of the Constitution of India. Accordingly, it is
https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:34:55 pm )
W.P.Nos.16606, 14895, 15221, 17319, 18418, 20086,
20174, 20175 and 22601 of 2018
liable to be set aside.
30. For the reasons stated above, these Writ Petitions are allowed and
G.O.Ms.No.314, Finance (Pay Cell) Department, dated 25.10.2017 is hereby
set aside.
31. Consequently, the respondents are directed to revise the pension
and family pension of the petitioners by adopting the same methodology as
adopted for the employees on time scales of pay prescribed in
G.O.Ms.No.313, Finance (Pay Cell) Department, dated 25.10.2017 and give
notional effect from 01.01.2016 or date of entitlement to pension / family
pension, which ever is later with monetary benefits from 01.10.2017 and
grant all consequential benefits.
There shall be no order as to costs.
Consequently, connected miscellaneous petitions are closed.
04.04.2025
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
pvs/CM
https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:34:55 pm )
W.P.Nos.16606, 14895, 15221, 17319, 18418, 20086,
20174, 20175 and 22601 of 2018
To
1. The Secretary to the Government,
The Government of Tamilnadu
Finance (Pay Cell) Department,
Fort St. George, Chennai 600009.
2. The Collector,
Chennai, Chennai District.
3. The Commissioner,
Corporation of Chennai,
Ripon Building, Chennai 600003.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:34:55 pm )
W.P.Nos.16606, 14895, 15221, 17319, 18418, 20086,
20174, 20175 and 22601 of 2018
BATTU DEVANAND.J.,
pvs
Pre-delivery order in
W.P.Nos.16606, 14895, 15221, 17319, 18418, 20086,
20174, 20175 and 22601 of 2018
04.04.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/04/2025 04:34:55 pm )
