Madras High Court
Viswanathan vs The Chief Secretary To Government on 28 August, 2020
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
W.P.(MD)Nos.7657 & 7681 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.08.2020
CORAM:
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
W.P.(MD)No.7657 and 7681 of 2020
(Through Video Conferencing)
Viswanathan ... Petitioner in
W.P.No.7657/2020
Ramakrishnan ... Petitioner in
W.P.No.7681/2020
Vs.
1.The Chief Secretary to Government
State of Tamil Nadu,
Secretariat, Chennai.
2.The Managing Director,
Tamil Nadu State Marketing Corporation Ltd (TASMAC)
Chennai.
3.The Senior Regional Manager,
Tamil Nadu State Marketing Corporation Ltd. (TASMAC)
Madurai District.
4.The District Manager,
Tamil Nadu State Marketing Corporation Ltd (TASMAC)
Sivagangai District. ... Respondents in
both W.Ps.
1/19
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W.P.(MD)Nos.7657 & 7681 of 2020
COMMON PRAYER : Writ Petitions are filed under Article 226 of the
Constitution of India to issue a Writ of Mandamus to direct the 2 nd
respondent to increase the retirement age from 58 years to 59 years to the
petitioners' services on the basis of the order passed by the 1st respondent in
his proceedings in G.O.(Ms) No.51 Personnel and Administrative Reforms
(s) Department dated 07.05.2020.
For Petitioners :Mr.R.Udhayakumar
For Respondent :Mr.M.Jeyakumar for R1
Additional Government Pleader
Mr.H.Arumugam for R2 to R4
standing counsel
COMMON ORDER
Since the issue raised in both the writ petitions are common and the respondents are also same, with the consent of the learned counsel for both sides, both these writ petitions were heard together and are being disposed of by this common order.
2. Both the petitioners are employees at the respondent TASMAC shop ie., IMFL sales shop. The petitioner in W.P.(MD) No.7681/2020 completed 58 years of age on 29.07.2020. The petitioner in W.P.(MD) No. 7657/2020 is 57 years old as of now.
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3. On 07.05.2020, the State Government issued a G.O., under G.O.Ms.No.51 Personnel and Administrative Reforms dated 07.05.2020 and issued the following order:
“G.O.Ms.No.51 Dated 07.05.2020
rhh;thp rpj;jpiu 24
jpUts;Sth; Mz;L 2051
G.O.(Ms)No.532, Personnel and Administrative Reforms (Personnel-M) Department, dated 25.04.1979
-----
ORDER:
The Government have decided to increase the age of superannuation of Government servants from 58 years to 59 years and orders accordingly. This will apply to all those who are in regular service as on date and due to retire on superannuation from 31.05.2020.
2.This order shall also be applicable to all teaching and non-
teaching staff working in aided educational institutions and employees of all Constitutional/Statutory Bodies, Public Sector Undertakings including all State Corporations, Local Bodies, Boards, Commissions, Societies etc.
3.The relevant provisions under rule 56 of Tamil Nadu Fundamental Rules will be modified to the above extent. Necessary amendment to the above rules will be issued accordingly.
(BY ORDER OF THE GOVERNOR) K.Shanmugam Chief Secretary to Government To All Secretaries to Government, Chennai.
All Department of Secretariat, Chennai All Heads of Departments, 3/19 http://www.judis.nic.in W.P.(MD)Nos.7657 & 7681 of 2020 All District Collectors All District Judges/District Magistrates The Finance (BPE) Department, Chennai”
4. By thus, the superannuation age of the Government servants, who are in regular service, has been enhanced from 58 to 59 years and the said benefit could be extended to those, who are in regular service as on 31.05.2020. The benefit of the said G.O., would be made applicable to all teaching and non teaching staff working in aided educational institutions and employees of all Constitutional/Statutory Bodies, Public Sector Undertakings including all the State Corporations, Local Bodies, Boards, Commissions, Societies, etc.
5. In the backdrop of the said Government order, now, these petitioners have raised an issue stating that, in view of the benefit of enhancement of one year of superannuation age from 58 to 59 years for all Government employees including the employees of all Organisations and Corporations, the petitioners, who are employees of the Tamil Nadu State Marketing Corporation (TASMAC) shall also be given or extended the same 4/19 http://www.judis.nic.in W.P.(MD)Nos.7657 & 7681 of 2020 benefit of enhancement of superannuation age from 58 to 59 years, thereby, they would get the service of one more year and in this regard, since the petitioners have given representation separately on 15.06.2020 and 26.06.2020 to the respondents and the same, since have not been considered, they filed the present writ petitions with the aforesaid prayer.
6. I have heard the learned counsel for the petitioners, who would submit that, the G.O.Ms.No.51 referred to above, would not only apply to the Government servants of the Government departments directly, but also to the Teachers and non teaching staff of aided institutions, employees of all constitutional and statutory bodies, public sector undertakings including all State Corporations, local bodies, Boards, Commissions, Society etc.
7. The TASMAC is one of the State Corporation governed under the aegis of the State of Tamil Nadu, certainly, the benefit of enhancement of superannuation age from 58 to 59, as envisaged under G.O.Ms.No.51 shall be extended to the employees of the TASMAC also. Hence, the petitioners are entitled to seek extension of their superannuation age from 58 to 59, 5/19 http://www.judis.nic.in W.P.(MD)Nos.7657 & 7681 of 2020 accordingly, their services can be extended further.
8. However, the learned standing counsel appearing for the TASMAC, having relied upon the counter affidavit filed by the fourth respondent, in both cases on behalf of the TASMAC, would submit that, two types of employees are being employed in the TASMAC throughout the State. One set of employees/officials are regular employees and another set of employees are temporary employees on contractual basis.
9. In this regard, the learned counsel for TASMAC has relied upon the following passages of the counter affidavit :
“6.It is submitted that this Hon'ble Court in its order dated 23.07.2020 directed to furnish the posts that are permanent and temporary category in TASMAC and the relevant rules governing those category of people. In compliance with the above direction this respondent humbly submits that at present, there are two categories of employees who are serving in TASMAC. They are regular employees (either by direct recruitment by the TASMAC or by deputation from the Government Department) and another category of employees who are on contract basis and are temporary employees who are paid a consolidated pay.6/19
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7.I submit that the following table shows the posts that come under the permanent category and Temporary categories of the TASMAC employees regarding the applicability of the G.O.(Ms) No.51:
Regular Service – Permanent Employees Sl.No. Name of the Post Retirement Age 1 General Manager (Wholesale & 59 Administration) By Deputation (From Revenue Department) 2 General Manager (Retail Vending) By 59 deputation (From Revenue Department) 3 General Manager (Personnel & Welfare) By 59 deputation (from Labour Department) 4 Senior Regional Manager by deputation 59 5 General Manager (Finance) By direct 59 recruitment 6 Chief Accounts Officer By direct recruitment 59 7 District Manager by deputation from revenue 59 department 8 Company Secretary Direct Recruitment 59 9 Manager (Commercial) By direct recruitment 59 10 Manager (Purchase and Sales) By direct 59 recruitment 11 Accounts Officer by promotion from 59 AAO/Deputation 12 Assistant Accounts Officer By direct 59 recruitment/Deputation 13 Assistant Manager By Promotion from 59 Assistant/Deputation 14 Section officer by promotion from 59 Assistant/Deputation 15 Assistant By promotion from JA & 59 Typist /Deputation 16 Junior Assistant By Direct Recruitment 59 17 Typist by direct recruitment 59 18 Driver by direct recruitment 59 7/19 http://www.judis.nic.in W.P.(MD)Nos.7657 & 7681 of 2020 19 Record clerk by promotion from office 59 Assistant 20 Basic Servant (Watchman, Sweeper & Office 59 Assistant) direct recruitment Contract Basis / Temporary Employees Sl.No. Name of the Post Retirement Age 1 District Manager (MBA Graduate) 58 2 Assistant Manager (Accounts) 58 3 Law Officer 58 4 Shop supervisor 58 5 Salesman 58 6 Assistant Salesman 58 (Re-designation of Bartenders as Assistant Salesman)
8.It is submitted that the said G.O. Ms.No.51 is applied only to the regular service whereas the petitioner, being a temporary employee of the TASMAC, appointed on a contract basis, does not apply to him. Therefore, the increase in the retirement age from 58 to 59 does not apply to him. Insofar as the permanent employees are concerned their service is governed by the rules that are applicable in Government service. In respect of temporary employees are concerned it is based on the contract and terms and conditions of the agreement entered and as well as governed by “The Code of Prevention and Detection of Fraudulent Acts in Tamil Nadu State Marketing Corporation Limited, 2014”. Thus, the writ petition is not maintainable and liable to be dismissed.” 8/19 http://www.judis.nic.in W.P.(MD)Nos.7657 & 7681 of 2020
10. He would further submit that, 20 types of employees referred to in the above table at Paragraph No.7 of the counter affidavit are permanent employees, who are either directly appointed/recruited by the TASMAC on regular basis or appointed by deputation from various departments. Since they are regular employees, certainly, the benefits envisaged under G.O.Ms.No.51 would be made applicable to this type of permanent or regular employees, since the respondent TASMAC is one of the Corporation of the State Government.
11. However, he would submit that, insofar as the other 6 categories of employees, who are temporary employees on contract basis, are concerned, they were appointed by TASMAC only on temporary basis by a specific contract between the employees concerned and the TASMAC. Therefore, the service conditions applicable to the regular employees of 20 categories mentioned in the first table may not be applicable to 6 type of employees appointed under contract basis.
12. He would further submit that, it is a settled legal position that, a 9/19 http://www.judis.nic.in W.P.(MD)Nos.7657 & 7681 of 2020 contract employee cannot claim equal service conditions on par with the service conditions being enjoyed by a regular employee. In other words, a contract employee would be strictly governed by the terms and conditions of the agreement entered as well as governed by “the Code of prevention of Detection of Fraudulent Acts in TASMAC, 2014” and not beyond that. When that being the position, the learned counsel for TASMAC would contend that, the language used in G.O.Ms.No.51, ie., “those who are in regular service as on date and due to retire on superannuation from 31.05.2020” makes it abundantly clear that, those employees, who are in regular service as on 31.05.2020 or due to retire on 31.05.2020 alone would be entitled to get the benefit of enhancement of superannuation age from 58 to 59.
13. Therefore, it is quite clear, according to him, that, the above six categories of employees referred to in the table 2 of the counter, who are employees on contract basis, cannot be considered as regular employees as these employees and their services would any time be terminated or dispensed with depending upon the contract conditions. Therefore, the 10/19 http://www.judis.nic.in W.P.(MD)Nos.7657 & 7681 of 2020 learned counsel for the TASMAC would submit that, the upper age limit of 58, as has already been fixed by the TASMAC for the purpose of engaging this contractual or temporary employees, cannot be enhanced or changed, merely because the superannuation age of the other regular employees has been increased from 58 to 59 in tune with G.O.Ms.No.51. Therefore, the learned counsel for TASMAC would submit that, the plea raised by the petitioners cannot be considered and therefore, it is liable to be rejected.
14. I have considered the said submissions made by the learned counsel on both sides and have perused the materials placed before this Court.
15. As has been rightly pointed out by the learned counsel for the TASMAC that, the benefits of G.O.Ms.No.51 ie., enhancement of superannuation age from 58 to 59 shall only be made applicable to the employees, who are in regular service as on 31.05.2020. Even though TASMAC is one of the State Corporation, based on which, the benefit of G.O.Ms.No.51 can also be made applicable to TASMAC employees also, 11/19 http://www.judis.nic.in W.P.(MD)Nos.7657 & 7681 of 2020 however, such benefit can be enjoyed only by the regular employees and not by the contract employees or temporary employees.
16. Therefore, the first 20 categories of regular employees are concerned, no doubt, the TASMAC has already accepted the enhancement of superannuation age and that is reflected in the very counter affidavit itself, as extracted hereinabove. Insofar as the six type of categories, since they are contract employees or temporary employees, are concerned, automatically, enhancement of superannuation age from 58 to 59 to those category of people can not be done by the TASMAC. To that extent, the reasoning stated by the TASMAC and the method adopted by the TASMAC can be accepted. Insofar as the fixing of 58 years as retirement age for the 6 type of temporary employees are concerned, this Court feels that, since these temporary employees, are admittedly contract employees, the question of retirement age of superannuation does not arise.
17. If at all they fixed the retirement age as 58 years, within which only the employee can be engaged, even on contract basis, that can only be 12/19 http://www.judis.nic.in W.P.(MD)Nos.7657 & 7681 of 2020 construed as an upper age limit, within which, those employees can be employed, of course, on contractual basis.
18. In other words, a contract employee engaged by TASMAC shall not be permitted to continue, even as a contract employee, beyond the age of 58 years ie., the prescription made by the TASMAC. The said prescription of upper age limit of 58 years even for contract employees to be engaged is based on intelligible differentia, because of the superannuation age for regular employees, which was hitherto 58 years ie., before G.O.Ms.No.51 came into effect.
19. However, after the G.O.Ms.No.51 came into effect for regular employees, the superannuation age has been enhanced from 58 to 59 and also for basic servants like Watchman, Sweeper and Office Assistants by way of direct recruitment, who are also regular employees, the superannuation age has already been fixed as 60, which is in tune with the Basic Servant Service Conditions and Regulations of the State Government and its departments.
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20. Only based on the earlier prescription of the superannuation age for regular employees, the upper age limit for contract employee had also been fixed as 58, now the said logic has gone, as the superannuation age of the regular employees has been enhanced from 58 to 59. Therefore, this Court feels that, absolutely there is no impediment for the TASMAC to have the upper age limit for contract employees to be engaged, as 59, by enhancing one year.
21. It does not mean that, up to 59 years every contractual employee shall be entitled to continue in the TASMAC. Insofar as contract employee or temporary employees are concerned, their service conditions are entirely different. Therefore, as a matter of right, no such contract employee can claim his employment till he attains the age of either 58 as of now, or 59, if it is increased from 58 to 59. However, their employment would depend upon the conditions imposed in the contract and also the other variations, like, closing of TASMAC shop and the consequential retrenchment of the employees, etc. 14/19 http://www.judis.nic.in W.P.(MD)Nos.7657 & 7681 of 2020
22. However, if an employee in a contractual post on temporary basis is required to be pressed into service, in other words, his service is further required at TASMAC, merely because, he already crossed 58 years, he shall not be disengaged or discontinued to be engaged beyond 58 years as that exercise, would not, in the considered opinion of this Court, based on any intelligible differentia in view of the increasing or enhancing the superannuation age for regular employees pursuant to G.O.Ms.No.51.
23. Therefore, this Court feels that, the respondent TASMAC, depending upon the need basis of each and every individual case, can consider engagement or employment of such contract employee beyond 58 years up to 59 years by fixing the upper age limit as 59 years, instead of 58 years and accordingly, the individual cases can be considered and the contract can be extended on need basis on such individual cases beyond 58 years till 59 years.
24. This arrangement would not be in violation of any regulations nor will violate any of the service conditions even being adopted for regular 15/19 http://www.judis.nic.in W.P.(MD)Nos.7657 & 7681 of 2020 employees of TASMAC, instead, it would be in tune with the logic adopted by the State Government in issuance of G.O.Ms.No.51 and the same being adopted by the TASMAC and accordingly, they had already enhanced the superannuation age from 58 to 59 for regular employees.
25. Therefore, in view of the aforesaid facts and circumstances and the view expressed by this Court, based on the discussion mentioned above, this Court is inclined to dispose of these writ petitions with the following orders:
“that the respondents shall consider the fixing of upper age limit by enhancing one year from 58 to 59 for contract employees or temporary employees of the TASMAC, who comes under this category referred to in the above table.
(ii) If such a fixation is made by the TASMAC, it does not mean that, all contractual or temporary employees would be entitled to seek a job extension of TASMAC compulsory upto 59 years.16/19
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(iii) Instead, every individual can be considered by TASMAC and on need basis, extension of contract can be given to an employee, who completed 58 years, for further one year period ie., up to 59 years and for making such extension of one year period up to 59 years, the present prescription of 58 years shall not stand in the way. Therefore, the TASMAC shall consider the aforesaid conditions objectively and take an early decision as to up to which age, for any deserving employee on contractual basis or existing employee on contractual basis can be extended their contract period.
(iv)If the aforesaid directions are complied with, certainly, based on which, the request of the petitioners can also be considered, as one of the writ petitioner in W.P.(MD) No.7681/2020, since has already completed 58 years on 29.07.2020, he may be considered for extension of further service on contractual basis, till he completes 59 years, of course, on need basis.
26. With these directions and observations, both the writ petitions are 17/19 http://www.judis.nic.in W.P.(MD)Nos.7657 & 7681 of 2020 disposed of. No costs.
28.08.2020
Index : Yes
Internet : Yes
RR
Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned. To
1.The Chief Secretary to Government State of Tamil Nadu, Secretariat, Chennai.
2.The Managing Director, Tamil Nadu State Marketing Corporation Ltd (TASMAC) Chennai.
3.The Senior Regional Manager, Tamil Nadu State Marketing Corporation Ltd. (TASMAC) Madurai District.
4.The District Manager, Tamil Nadu State Marketing Corporation Ltd (TASMAC) Sivagangai District.
R.SURESH KUMAR, J.
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