Madras High Court
P.Sankarasekar vs The Director on 19 July, 2018
Author: M.Dhandapani
Bench: M.Dhandapani
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.07.2018
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
Writ Petition No.20241 of 2007
P.Sankarasekar
S/o.S.Pandaram ... Petitioner
Versus
1.The Director,
The Tamil Nadu Fire and Rescue Service,
Egmore, Chennai 8.
2.The Public Information Officer,
Office of the Directorate of Tamil Nadu,
Fire and Rescue Service,
Egmore, Chennai. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the proceedings of the second respondent in Na.Ka.No.4875/E3/2007 dated 20.03.2007 and quash the same and consequently, direct the first respondent to grant the petitioner the Gratuity and Surrendered Earned Leave together with interest at 12% payable from the dates of relief viz., 12.09.2004.
For Petitioner : Mr.V.Vijayshankar
For Respondents : Mr.K.Ravikumar,
Additional Government Pleader
*****
O R D E R
The petitioner has filed the Writ Petition seeking quash of the proceedings of the second respondent in Na.Ka.No.4875/E3/2007 dated 20.03.2007 and consequently, direct the first respondent to grant the petitioner the Gratuity and Surrendered Earned Leave together with interest at 12% payable from the dates of relief viz., 12.09.2004.
2. The case of the petitioner is that the petitioner was appointed as a Fireman in the Tamil Nadu Fire and Rescue Service on 09.09.1996 and posted to Nagercoil in Kanyakumari Division. Thereafter, he was promoted as Fireman Driver in the year 2003. While he was working as Fireman Driver, based on the advertisement issued by the Nuclear Power Corporation Limited, Kudankulam, for filling up the post of leading Fireman A, the petitioner applied for the same. His application was forwarded through proper channel and he was selected as Leading Fireman A in the pay scale of Rs.4500-100-6000. Thereafter, the petitioner selected as Fireman A in the Nuclear Power Corporation Limited, Kundankulam. He had tendered a technical resignation from the Tamil Nadu Fire and Rescue Service and acting on the same, he was relieved by the authorities on 12.09.2004. Immediately, he assumed charges in Nuclear Power Corporation Limited, Kudankulam and till date, the petitioner is working there.
3. The petitioner submitted representations to the authorities to grant him the General Provident Fund, Pay Commission Arrears, Gratuity and Surrendered Earned Leave standing to his credit on the ground that he had completed nearly eight years service under the Tamil Nadu Fire and Rescue Service. Pursuant thereto, only General Provident Fund, Family Benefit Fund and Pay Commission Arrears were settled and Gratuity and Surrendered Earned Leave have not been settled. After repeated representations, the second respondent, acting on behalf of the first respondent, under the impugned order, informed that the petitioner is not eligible to get terminal benefits as he has put in less than 10 years of service in the Tamil Nadu Fire and Rescue Service. Since the reasoning afforded by the second respondent is against Rules 43 and 45 of the Tamil Nadu Pension Rules, the petitioner has approached this Court by way of the present Writ Petition.
4. By way of counter affidavit, the respondents submitted that the petitioner initially joined the service of Tamil Nadu Fire and Service Department. Thereafter, on his own interest, he opted for the post of Leading Fireman A in Nuclear Power Corporation of India Ltd., in pursuant to the advertisement issued by the said Corporation to fill up the vacancies at Triunelveli District. The Divisional Fire Officer, Kanyakumari, in his proceedings in Rc.No.4968/A/04 dated 03.098.2004 relieved the petitioner on 12.09.2004 A.N. on condition that the will not be permitted to rejoin in this Department and also if any amount is due to the Department will be deducted.
Respondents have also relied on Rule 14-A of the Fundamental Rules, which reads as follows:
14-A. (a) Except as provided in clauses (c) and (d) of this rule a Government servants lien on a post may, in no circumstances be terminated, even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post. (b) Deleted.
(c) Notwithstanding the provisions of Rule 14 (a), the lien of a Government servant holding substantively a permanent post shall be terminated while on refused leave granted after the date of retirement under Rule 86 or corresponding other rules.Vide G.O. 829, Personnel and Administrative Reforms Department, dated 26-8-1985.
(d) A Government servants lien on a post shall stand terminated on his acquiring a lien on a permanent post (whether under the Government or the Central Government or any other State Governments) outside the cadre on which he is borne.
5. The respondents further submitted that the provision of Fundamental Rule 14-A apply only so long as a Government servant remains in Government service. In cases, where permanent Government servants are permitted to be permanently absorbed in non-Government service in the public interest it should be incumbent on the foreign employer to consult the parent employer before issuing orders absorbing the Government servant permanently in his service. The lien of Government servant in the permanent post under Government stands automatically terminated with the cessation of Government service, that is, from the date of permanent absorption. The Government servants absorbed permanently under the autonomous Corporations or Undertakings owned by State or Central Government need not be asked to tender a formal resignation of their post under the State Government as the issue of orders of absorption and acceptance of the same by the Government servant would be construed as surrender of their rights as Government servants. From the date of such absorption; payment of pension and leave salary contribution shall be stopped, as he will cease to be a Government servant.
6. Learned counsel for the petitioner referred to Rule 45 of the Tamil Nadu Pension Rules, which deals with Death-cum-Retirement Gratuity, in support of his submission.
7. Per contra, the learned Additional Government Pleader appearing for the respondents, would submit that once the petitioner is relieved from the permanent post and joined the other department, by virtue of Rule 14-A of Fundamental Rules, his lien over the earlier department got snapped and he is not entitled to get any benefit from the previous department.
8. The issue raised in this Writ Petition is as to whether the petitioner is entitled for Death cum Retirement Gratuity amount and encashment of earned leave. Admittedly, the petitioner initially joined the Tamil Nadu Fire and Rescue Department and after completing eight years of service, he joined Nuclear Power Corporation of India Ltd. It is relevant to note that if the petitioner is not absorbed in any other department, Rule 14-A of the Fundamental Rules will come into play. Since the petitioner joined the other department, Rule 14-A of the Fundamental Rules did not apply. Rule 45 (1)(a) of the Pension Rules makes it clear that A Government servant, who has completed five years' qualifying service and has become eligible for service gratuity or pension under Rule 43, shall, on his retirement be granted death-cum-retirement gratuity as in the Table below for each completed six monthly period of qualifying service, subject to a maximum of fifteen times the emoluments.- Provided that in the case of retirement of a Government servant after completion of a qualifying service of thirty years the maximum Death-cum-Retirement Gratuity shall be payable not exceeding rupees thirty thousand.
9. The above provision clearly reveals that only after retirement, the petitioner is entitled to claim gratuity. After completion of 10 years of qualifying service, the petitioner is entitled for immediate pension and after 33 years of service, the petitioner is entitled for full pension.
10. In the present case, the petitioner has not retired from service and he is presently working in Nuclear Power Corporation of India Ltd. On a perusal of the impugned order, this Court finds that the second respondent has rightly pointed that since the petitioner has not put in 10 years of qualified service, he is not entitled to claim pension and other benefits in their department. However, the second respondent has observed that since the petitioner has joined the department, which is under the control of Central Government, he may be eligible for pension by taking into account the period of service put in by him in the previous department and hence, the petitioner has, in order to avail those benefits, to approach the previous employer through proper channel.
11. In respect of other prayer with regard to encashment of earned leave, liberty is granted to the petitioner to work out his remedy in the manner known to law and if any rule permits that the petitioner is entitled to M.DHANDAPANI, J gm claim encashment of earned leave even before retirement, the petitioner can very well approach the concerned authority seeking such relief.
In view of the above, this Court does not find any merit in the Writ Petition. Accordingly, the Writ Petition is dismissed with the above observation. No costs.
19.07.2018
Index : No
Internet : Yes
gm
To
1.The Director,
The Tamil Nadu Fire and Rescue Service,
Egmore, Chennai 8.
2.The Public Information Officer,
Office of the Directorate of Tamil Nadu,
Fire and Rescue Service,
Egmore, Chennai.
Writ Petition No.20241 of 2007