Madras High Court
V.K.S.Balu vs The State Of Tamil Nadu on 8 March, 2017
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.03.2017
CAV ON :01.12.2016
DATED :08.03.2017
CORAM
THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN
W.P(MD)No.15571 of 2013
and
M.P.(MD)No.1 of 2013
V.K.S.Balu .. Petitioner
Vs
1.The State of Tamil Nadu
Rep. by its Secretary,
Education Department,
Fort St.George,
Chennai - 600 009.
2.The Secretary to Government,
Finance Department,
Government of Tamil Nadu,
Fort St.George,
Chennai - 600 009.
3.The Director of Elementary Education,
Chennai - 600 006.
4.The District Elementary Education Officer,
Theni, Theni District.
5.The Principal Accountant,
General (A&E),
No.261, Anna Salai,
Chennai. .. Respondents
Prayer: Writ Petition 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 3rd respondent in Na.Ka.No.18792/J1/2012 dated
26.04.2013, quash the same and consequently direct the respondents herein to
grant pension to the petitioner as per G.O.Ms.No.408 Finance (Pension) dated
25.08.2009 and on part with similarly placed candidates.
!For Petitioner : M/s.K.Appadurai
^For Respondent : Mr.K.Guru
Additional Government Pleader
for R1 to R4
Mr.P.Gunasekaran
for R5
:ORDER
The present writ petition is filed by the petitioner for issuance of Writ of Certiorarified Mandamus to call for the records relating to the impugned order of the 3rd respondent in Na.Ka.No.18792/J1/2012, dated 26.04.2013, quash the same and consequently, direct the respondents herein to grant pension to the petitioner as per G.O.Ms.No.408, Finance (Pension), dated 25.08.2009 and on part with similarly placed candidates.
2. The case of the petitioner is that the petitioner was qualified in Old SSLC and completed his Higher Grade Studies in Agriculture in the year 1973. He was appointed as a Part Time Technical Teacher in R.C.Middle Schools at T.Sindhalaseri, Theni District, on 19.08.1976. He was working as a Part Time Technical Teacher (Agriculture) in Seshathiri Middle School at Kambam Anumathanpatti from 18.02.1981 to 31.05.1987. But, the said school was closed for various reasons. Thereafter, he was again appointed as a Part Time Technical Teacher (Agriculture) in Panchayat Union Middle School at Mela Sinthalaseri, Theni District on 18.09.1987 and employed till 18.11.1998.
3. The further case of the petitioner is that the petitioner had completed technical training examination conducted by the Government for Technical Teachers in Kallupatti from 01.01.1995 to 19.02.1996. At that time, there was vacancies for full time Technical Teacher (Agriculture), in Panchayat Union Middle Schools at Theni District. Though he was fully eligible for being appointed in the permanent vacancy, the authorities had chosen to appoint him as Part Time Technical Teacher (Agriculture) and thereafter, on 19.11.1998 he was appointed as a full time technical teacher (Agriculture) in the Panchayat Union Middle School, Melasindalacheri, Theni District and he was appointed as a Secondary School Teacher from 02.07.2001 by proceedings of the 3rd respondent. Subsequently, after putting in service, the petitioner was retired from service on 31.01.2007 without any remarks.
4. The petitioner come forward by saying that through out his service, he was employed as part time technical teacher (Agriculture) for 17 years 10 months 13 days and as full time teacher for 8 years 8 months. For drawing pension, the employee should have completed ten years of service in the permanent post. The petitioner also states that during the period between 01.01.1961 and 01.04.2003 several appointments in the post of teaching in the Government Servants were on consolidated pay under Non-Provincialized post on the legitimate expectation of regularization and benefit of pension for their long service having lost such benefits, the Government had decided to grant pension to those persons, who had put in long service on consolidated pay by issuing G.O.Ms.No.408, Finance (Pension) Department dated 25.08.2009.
5. The petitioner further states that the Government has passed on Order in G.O.Ms.No.408, dated 25.08.2009 stating that half of the service period of non-provincialised service, consolidated pay service, honorarium and daily wages prior to 01.04.2003 and after 01.01.1961, will be taken into consideration along with the regularized service period for the purpose of grant of pension considering the long service of employees and his regularized service is 8 years 8 months and his non-provincialised service being 17 years 10 months 13 days, there is short of one year and four months for regular pension. In view of the Government Order in G.O.Ms.No.408, dated 25.08.2009, if half of his service period prior to regularized service is being taken into consideration, the petitioner was entitled for grant of pension. Whileso, similarly placed part time technical teacher viz., one Smt.Chandra, employed at Muthuraja Aided Middle School, Atavathur, Manikandan Range, Trichy District, who had put only in 8 years, one month, 20 days, in the regular service, was granted pension by reckoning her previous period from part time service by proceedings of the third respondent in O.Mu.3324/G2/10, dated 06.08.2010. Hence, the petitioner submitted his application dated 24.05.2010, to the payments for grant of pension, in the light of G.O.Ms.No.408, dated 25.08.2009, and to extend the similar benefit granted to a similarly placed part time teacher to the petitioner.
6. It is further case of the petitioner is that his application for grant of pension, in the light of G.O.Ms.No.408 dated 25.08.2009, was submitted through proper channel and the 3rd respondent herein also after proper consideration and verification of records, by proceedings in O.Mu.No.025175/L2/2010 dated 13.10.2010, had recommended to the Government for sanction and further directed to the 4th respondent to grant the pensioner's benefits on par with the other similarly placed teacher. He states that after the above proceedings, there was no progress in the matter and therefore he approached this Court and filed a writ petition in W.P.No.8861 of 2010 praying for issuance of a Writ of Mandamus directing the 3rd respondent herein to consider and pass orders on his application dated 24.05.2010 and this Court has disposed of the said writ petition on13.07.2010 by directing the 3rd respondent herein to consider his application dated 24.05.2010 and pass orders on merit in accordance with law, within a period of twelve weeks.
7. As per the direction of this Court, no order was passed for a long time and thereafter, the present impugned order dated 26.04.2013 was passed rejecting the petitioner's records by stating that the petitioner was served only as the part time technical teacher and hence, he has not eligible for the benefit under G.O.Ms.No.408 , dated 25.08.2009, since the said beneficiaries are not including or extended to the part time teachers.
8. The counter affidavit was filed by the 4th respondent/District Elementary Education Officer, Theni. The counter was also filed on behalf of the respondents 1 to 3 and the counter affidavit of 4th respondent states that the petitioner was appointed as a part time technical teacher dated 19.08.1976 and from 18.02.1981 to 31.05.1987 he had worked as Technical Teacher (Agriculuture) in Seshathiri Middle School at Kambam Anumanthanpatti. Thereafter, he was appointed as a part time Technical Teacher (Agriculture) in Panchayat Union Middle School at Melasinthalaseri, Theni District on 18.09.1987 and worked till 18.11.1998 and he was appointed as a full time teacher (Agriculture) in the Panchayat Union Middle School at Melasinthalaseri, Theni District and subsequently, he was appointed as a Secondary School Teacher from 02.02.2011 and he was allowed to retire on 31.01.2007 on superannuation.
9. The 4th respondent also states that the Government issued G.O.Ms.No.408, Finance (Pension) Department dated 25.08.2009 whereby directed the Count of 50% service rendered in Non provincialised post, Consolidated pay, Honararium pay and daily wages count along with service rendered in regular service for the purpose of pension. The same was applicable to the persons, who worked on full time basis in the non-provincialised service, Honararium pay and daily wages and therefore, it is not applicable to the persons, who worked on part time basis. Hence, the contention of the petitioner is liable to be rejected. Therefore, it is made clear that part time service rendered in non provinalised service, honararium pay and daily wages along with regular service and the petitioner falls under the aforesaid aspects. Hence, the impugned order has been rightly passed and there is no perversity or illegality in the impugned order passed by the third respondent. The impugned order also passed based on the Rule 11(4) of Pension Rules. Therefore, the respondents prayed for dismissal of the writ petition.
10. Heard Mr.K.Appadurai, learned counsel appearing for the petitioner and Mr.K.Guru, (Government Advocate) for R1 to R4 and Mr.P.Gunasekaran for R5 learned counsel appearing for the respondents.
11. Admittedly, the petitioner was employed as a part time technical teacher (Agriculture) for 17 years, 10 months, 13 days and as a full time teacher for 8 years 8 months. While so, a similarly placed part time teacher viz., Smt.Chandra employed at Muthuraja Aided Middle School, Athavathur, Manikandan Range, Trichy District, who had put in 8 years, 1 month, 20 days, in the regular service, was granted pension by reckoning her previous period from part time service, by proceedings of the 3rd respondent herein by proceedings O.Mu.3324/G2/10, dated 06.08.2010. Apart from this, the Government has also passed in G.O.Ms.No.408, dated 25.08.2009, to extend the similar benefit granted to a similarly placed part time teacher. In the light of the G.O.Ms.No.408, dated 25.08.2009, half of the service period of non-provincialised service, consolidated pay service, Honararium and daily wages prior to 01.04.2003 and after 01.01.1961 will be taken into consideration along with the regularized service period for the purpose of grant of pension, considering the long service of employees.
12. Apart from this, the learned counsel for the petitioner has produced several Judgments rendered by this Court in writ petitions in W.P.(MD).No.16771 of 2013 reported in 2014 Writ L.R.687 in a case in V.Ramar Vs The State of Tamil Nadu Rep by its Secretary School Education Department, Fort St.Geroge, Chennai 9 and others.
"Writ petition filed under Section 226 of the Constitution of India, praying for the issuance of writ of mandamus directing the respondents to take 50% of the part time service rendered by the petitioner i.e., from 08.10.1980 to 31.03.1990 along with the regular service for the pension benefits i.e., for the period of 27 years 8 months and 26 days."
13. This Court had passed in W.P.(MD)No.17483 of 2016, wherein the relevant portion reads as under:
"The grievance of the petitioner is that 50% of the service rendered by her husband prior to regulatization is not taken into account for the purpose of pension and other benefits as per Rule 11(2) of Tamil Nadu Pension Rules, The learned Counsel hs relied on a decision of the Division Bench of this Court in W.A.Nos.27 and 28 of 2012, dated 13.02.2012-Government of Tamil Nadu rep. by its Secretary to Government v. MK.Gopal, which was confirmed by the Hon'ble Apex Court in S.L.P.Nos.14838-14839 of 2012 in G.O.Ms.No.183, Environment and Forests (FR-2) Department, dated 18.07.2012. Further, I have also passed an order in detail to count 50% of service rendered before regularization in the case of P.Chinniyan Vs. State of Tamil Nadu reported in 2014(7) MLJ 316.
4. In these circumstances, the writ petition is disposed of directing the first respondent to count 50% of service rendered by the petitioner's husband before regularisation along with service rendered after regularization for the purpose of pension and other terminal benefits in the light of Rules 11(2) read with 11(4) of the Tamil Nadu Pension Rules and also the judgments referred to above and submit the pension proposal of the petitioner for the terminal benefits for authorization before the fourth respondent, within a period of twelve weeks from the date of receipt of a copy of this order and the fourth respondent is directed to authorise the same within a period of two weeks thereafter. No costs."
14. Apart from this, in judgment of V.Ramar vs. The State of Tamil Nadu rep.by its Secretary School Education Department, Fort St.George, Chennai 9 and others [2014 Writ L.R. 687], the learned Judge of this Court was considered the following citations of this Court as well as the Hon'ble Apex Court reported in (i)2005(8) SCC 325 (Union of India and others Vs.Braj Nandan Singh; (ii)1996 (6) SCC 44 (Union of India and Others Vs,Dhanwanthi Devi and Others); (iii)W.P.No.11389 of 2003 etc., dated 08.07.2004 (K.R.Kumar Vs.State of Tamil Nadu and others); 2009 (16) SCC 722 (Surjit Singh Vs. Mahanagar Telephone Nigam Limited); and R.L.Arora Vs. State of U.P (AIR 1964 SC 1230). In the above said judgment, para 21 reads as follows:-
"21. The basic concept highlighted in the orders of the Tribunal to the effect that single part time teachers and double part time teachers should be treated equally cannot be faulted. However, since double part time teachers had already been regularized and conferred a benefit, in the absence of a specif direction by the Tribunal, such benefit should not have been taken away by the Government. On the other hand, the Government should have made endeavour to confer similar benefits on the single part time teachers. "Thus, from the finding of the Hon'ble Division Bench it is clear that single part time teachers should be treated equally with double part time teachers and all the benefits that were given to the double part time teachers should have been extended to single part time teachers as well.
28. At this juncture, it is also relevant to refer and compare Rule 11 (4) with Rule 11 (2) (i) and (ii) of the said Rules for the purpose of understanding the intention of the legislation. Rule 11(4) deals with non provincialised service, consolidated pay, honararium or daily wages basis services, while Rule 11(2) (i) deals with contingency service. Rule 11(2)
(i) reads as follows:
(2) Half of the service paid from contingencies shall be allowed to count towards qualifying service for pension along with regular service subject to the following conditions:
(i) Service paid from contingencies shall be in a job involving whole time employment and not part time for a portion of the day.
(ii) Service paid from contingencies shall be in a type of work or job for which regular posts could have been sanctioned, for example Chowkidar".
30. At this juncture, it is useful to refer to the decision of the Hon'ble Supreme Court reported in 2009(16) SCC 722 (Surjit Singh Vs.Mahanagar Telephone Nigam Limited), more particularly, the observation made therein with regard to interpretation of statures. The Hon'ble Supreme Court has observed that in exceptional cases the literal rule can be departed from and that one has to consider the context in which a stature has been made and the purpose and object which it seeks to achieve. The relevant paragraph 22 is extracted hereunder:
22.Though, no doubt, ordinarily the literal rule should be applied while interpreting a statute or statutory rule, but the literal rule is not always the only rule of interpretation of a provision in a statute, and in exceptional cases the literal rule can be departed from. As observed in the Constitution Bench decision of this Court in R.L.Arora Vs. State of U.P (AIR 1964 SC 1230)
9. ... Further, a literal interpretation is not always the only interpretation of a provision in a stature and the Court has to look at the setting in which the words are used and the circumstances in which the law came to be passed to decide whether there is something implicit behind the words actually used which would control the literal meaning of the words used in provision of the Statute. It is permissible to control the wide language used in a stature if that is possible by setting in which the words are used and the intention of the law-making body which may be apparent from the circumstances in which the particular provision came to be made. Hence, it follows that to interpret a statute one has to sometimes consider the context in which it has been made and the purpose and object which it seeks to achieve. A too literal interpretation may sometimes frustrate the very object of the statute, and such an approach should be eschewed by the Court"
15. The learned counsel for the petitioner also produced the judgments passed by this Court in W.P.(MD).No.11000 of 2005 reported in N.Nallakannu Vs. Secretary to Government Finance (CA) Department and another wherein the relevant portion reads as under:
The proviso to the aforesaid Rule makes it clear that the resignation shall not entail forfeiture of past service, if it has been submitted to take up any appointment with prior permission. Admittedly, the petitioner was recruited through Tamil Nadu Public Service Commission. While he was serving in the Public Works Department, he submitted his resignation letter to the Executive Engineer to take up the employment with the Co-operative Department on 14.09.1971. He joined the Co-operative Department on 15.07.1971. Thus, it should be taken that the petitioner is entitled to the proviso of Rule 23 of the Tamil Nadu Pension Rules. In fact, the Division Bench of this Court has interpreted Rule 23 of the Tamil Nadu Pension Rules in such a way to grant the terminal benefits if a person resigned on the ground of ill health, though such a contingency is not provided in the Rule. Hence, I am of the view that based on the proviso to Rule 23 of the Tamil Nadu Pension Rules, and the decision of the Division Bench, the petitioner is entitled to succeed. Accordingly, the impugned order is quashed and the respondents are directed to refix the retiral and pensionary benefits of the petitioner by taking into account 50% of past service of the petitioner during the period between 29.01.1964 and 28.02.1970 and full service between 02.03.1970 and 14.09.1971 as per Rules and Government Order. The writ petition is allowed to the extent indicated above. No costs."
16. Therefore, as per the above judgments rendered by this Court in various cases and also the judgments passed by the Hon'ble Apex Court, it is made clear that though the petitioner was served as a part time technical teacher (Agriculture) for 17 years, 10 months, 13 days in a permanent post and in permanent post for 8 years 8 months, with the similarly placed part time technical teacher viz., Smt.Chandra, employed at Muthuraja Aided Middle School, Athavathur, Manikandan Range, Trichy District was granted pension reckoning his previous period from part time service by proceedings of the 3rd respondent herein viz., O.Mu.3324/G2/10, dated 06.08.2010 and the rejection of the 3rd respondent by the present impugned order dated 26.04.2016, is totally illegal and violation of their own orders and against the natural of justice.
17. This Court is very categorically held in the above judgments, the 3rd respondent has no right to reject the request of the petitioner for requiring his part time service of the long service for 17 years 10 months and 13 days for taken into account for 50% of service.
18. All the above judgments passed by the Hon'ble Supreme Court and by this Court were squarely applicable to the petitioner's case in hand, therefore the petitioner is entitled to the relief for sought for in this writ petition.
19.In the result:
(a) the writ petition is allowed by setting aside the order passed by the 3rd respondent in Na.Ka.No.18792/J1/2012 dated 26.04.2013;
(b) the respondents are hereby directed to grant pension to the petitioner as per G.O.Ms.No.408 Finance (Pension) dated 25.08.2009 and the pay back the arrears of pension and also pay the future pension continuously;
(c) the respondents are hereby directed to complete the above said exercise within a period of eight weeks from the date of receipt of a copy of this order. However, considering the circumstances of the case, there is no order as to cost. Connected Miscellaneous Petition is closed.
To
1.The State of Tamil Nadu Rep. by its Secretary, Education Department, Fort St.George, Chennai - 600 009.
2.The Secretary to Government, Finance Department, Government of Tamil Nadu, Fort St.George, Chennai - 600 009.
3.The Director of Elementary Education, Chennai - 600 006.
4.The District Elementary Education Officer, Theni, Theni District.
5.The Principal Accountant, General (A&E), No.261, Anna Salai, Chennai..