Madras High Court
Venkatesan vs The State Of Tamil Nadu on 25 August, 2020
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
W.P.(MD)No.10041 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.08.2020
CORAM
THE HON'BLE MR.JUSTICE R.SURESH KUMAR
W.P.(MD)No.10041 of 2020
Venkatesan ... Petitioner
-Vs-
1.The State of Tamil Nadu,
Through its Secretary,
Department of School Education,
Fort St.George, Chennai-9.
2.The Joint Director of School Education, (Vocational)
College Road, Chennai-6.
3.The Chief Education Officer,
Virudhunagar District,
Virudhunagar.
4.The District Educational Officer,
Srivilliputhur,
Virudhunagar District.
5.The Secretary,
G.S.Hindu Higher Secondary School,
Srivilliputhur. ...Respondents
Prayer: Writ Petition is filed under Article 226 of Constitution of India,
to issue a Writ of Certiorarified Mandamus, to call for the entire records
connected with the impugned order passed by the third respondent in
Na.Ka.No.2467/Ee1/2019 dated 07.07.2020 and quash the same and
directing the respondents to take the 50% of the part time service
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W.P.(MD)No.10041 of 2020
rendered by the petitioner i.e., from 23.09.1998 to 08.02.2007 for the
pension benefits based upon the order passed in W.P(MD).No.14365 of
2014 batch dated 09.07.2018 and order passed in W.P(MD).No.22785 of
2019 batch dated 05.11.2019.
For Petitioner : Mr.K.K.Kannan
For Respondents : Mr.M.Thilagar
Government Advocate
for R1 to R4
ORDER
Prayer sought for herein is for a Writ of Certiorarified Mandamus, to call for the entire records connected with the impugned order passed by the third respondent in Na.Ka.No.2467/Ee1/2019, dated 07.07.2020 and quash the same and directing the respondents to take the 50% of the part time service rendered by the petitioner i.e., from 23.09.1998 to 08.02.2007 for the pension benefits based upon the order passed in W.P(MD).No.14365 of 2014 batch, dated 09.07.2018 and order passed in W.P(MD).No.22785 of 2019 batch, dated 05.11.2019.
2.Heard Mr.K.K.Kannan, learned counsel appearing for the petitioner and Mr.M.Thilagar, learned Government Advocate appearing for the respondents 1 to 4. Since no adverse order is going to be passed against the fifth respondent, notice to him is dispensed with. 2/31 http://www.judis.nic.in W.P.(MD)No.10041 of 2020
3.By consent of both sides, this Writ Petition is taken up for final disposal at the admission stage itself.
4.The petitioner presently is working as P.G.Teacher at G.S.Hindu Higher Seconary School at Srivilliputhur, Virudhunagar District. Initially, he was working as part time Vocational Instructor from 23.09.1998 and has been brought under regular time scale of pay from 09.02.2007 as a full time teacher, his service also accordingly regularised from that date and order to that effect was issued by the Joint Director of School Education (Higher secondary) by proceedings, dated 09.05.2007.
5.Now, the grievance of the petitioner is that, the service rendered by him between 23.09.1998 and 08.02.2007 as part time Vocational Instructor has not been taken into account for the purpose of service and pensionary benefits and in this regard, since the issue as to whether such service rendered by similarly placed part time Vocational Teacher prior to they were brought under regular full time service with regular time scale of pay can be taken into account for the purspose of service and pensionary benefits, had been decided in number of cases by the Writ 3/31 http://www.judis.nic.in W.P.(MD)No.10041 of 2020 Court of the Principal Seat as well as this Bench and against some of the decisions rendered so by the Writ Court, intra-Court appeals were prepared, where also the view taken by the Writ Court having been confirmed, the matter has gone to the Hon'ble Supreme Court, where also it was confirmed. Therefore, pursuant to which, the relief sought for by the similarly placed persons, to extend the benefits of taking into account of atleast 50% of the service rendered by them as part time Vocational Instructor, has been taken into account for the purpose of service and retiral benefits and that was the position prevailing all along for the last few years.
6.However, in this regard, some of the writ appeals in the batch in W.A.No.882 of 2017 etc., had been disposed of by a Division Bench of this Court by order dated 06.04.2018, where the Division Bench in para 15 has stated the following:
“...
15In terms of the above discussions, we dispose of the writ appeals as under:
• 50% of the services rendered by the respondents herein, as Part Time Vocational Instructor (either as Single Part Time or Double Part Time 4/31 http://www.judis.nic.in W.P.(MD)No.10041 of 2020 Vocational Instructor), shall be counted for the purpose of computing pension and other retrial benefits.
• The above said benefit shall be extended only to the respondents in these writ appeals and for the persons similarly situated like that of the respondents herein, whose cases are pending before this Court. Thus it is made clear that the above said benefit shall not be extended to any other further cases that may be filed on this account, on the ground of delay and laches, since all along they have not come up before this Court and remained as fence-sitters. It is also needless to point out that allowing such cases would amount to opening the Pandora's box, touching upon the financial implications of the State.
16. The writ appeals are disposed of accordingly. No costs. Consequently, the connected miscellaneous petitions are closed.”
7.In view of the said decision taken by the Division Bench, pursuant to which, the Government come forward to issue a Government Order in G.O.Ms.No.194, School Education Department, dated 12.09.2018, where, relying upon the said decision of the Division Bench, dated 06.04.2018, the Government passed the said Government Order with the following effect:
“5.Nkw;fz;l #o;epiyapy;> khz;gik nrd;id cah;ePjpkd;wk;/nrd;id cah;ePjpkd;w kJiu fpis jPhg ; ;ghizfSf;fpzq;fTk;> nrd;id cah;ePjpkd;w Nky;KiwaPl;L tof;F vz;fs;.882> 808/2017> 1224, 5/31 http://www.judis.nic.in W.P.(MD)No.10041 of 2020 1395> 1471> 1283 kw;Wk; 1323/2016 kw;Wk; C.M.P.Nos. 12269> 11319/17> 15744> 15745> 17938> 17939> 18318> 18319> 17906> 17919 kw;Wk; 17159/2016-,y; ngw;g;gl;l 06.04.2018-Mk; ehspl;l jPhg; hizapid nray;gLj;j Ntz;bAk;> gs;spf; fy;tp ,af;Fehpd; fUj;JUtpid muR ftdKld; ghprPypj;J> mjid Vw;fyhk; vd KbT nra;J> mt;thNw 01.04.2003-f;F Kd;dh;
Kiwahd Cjpa tpfpjj;jpy; nfhz;Ltug;gl;l muR kw;Wk; muR cjtp ngWk; cah;ePjpkd;wk;/nrd;id cah;ePjpkd;w kJiu fpisapy; tof;Ffs; njhlh;e;J jPhg ; ;ghiz ngw;Ws;s kw;Wk; 06.04.2018Mk; ehs; tiu tof;F njhLj;J tof;F epYitapy; cs;s ,th;fis xj;j njhopw;fy;tp MrphpahfSf;F kl;Lk; mth;fspd; gFjpNeu gzpf;fhyj;jpy; 50 tpOf;fhl;il Xa;t +jpaj;jpw;F fzf;fpy; vLj;Jf;nfhs;s mDkjpj;J muR MizapLfpwJ.
6.,t;turhiz epjpj; Jiwapd; m.rh.F.vz;. 47659/epjp (Xa;t+jpak;) Jiw> ehs; 12.09.2018-,y; ngwg;gl;l ,irTld; ntspaplg;gLfpwJ.
(MSehpd; Mizg;gb) gpujPg; ahjt;
muR Kjd;ikr; nrayhsh;”
8.When that is the position, the request made by the petitioner to calculate 50% of his past service rendered by him as part time Vocational Instructor from 23.09.1998 to 08.02.2007 has been rejected through the impugned order, dated 07.07.2020 on the ground that, in view of the cut off date fixed as 01.04.2003 and in view of the cut off date given by the Division Bench order, dated 06.04.2018, where the petitioner admittedly had not approached this Court before 06.04.2018 in tune with the said order of the Division Bench, according to the respondents, the plea raised 6/31 http://www.judis.nic.in W.P.(MD)No.10041 of 2020 by the petitioner cannot be considered and accordingly, they rejected the same through the impugned order. Challenging the impugned order dated 07.07.2020 passed by the third respondent, the petitioner has moved this Court with the aforesaid prayer.
9.The issue as to whether the service rendered by the person like the petitioner as part time Vocational Instructor for several years before they were brought under regular full time service with regular time scale of pay can be taken into account for service and pensionary benefits, had a chequered history.
10.The State Government in the year 1978 introduced +2 Higher Secondary Course System, where two major set of education was imparted. One is Vocational Instructions and another one is Non- Vocational Instructions. Insofar as the Vocational Instructions Course are concerned, in order to impart teaching to the needy students, Government thought it fit to engage part time Vocational Instructors with necessary qualifications. They could have either been single part time Vocational Instructor or double part time Vocational Instructors, but the 7/31 http://www.judis.nic.in W.P.(MD)No.10041 of 2020 fact remains that, they were only part time Instructors, not full time Instructors/Lectureres/Teachers.
11.Such position was continued for several years and those part time Vocational Instructors since had made a plea before the Government to regularise their services as full time Teachers or Instructors by bringing them under regular time scale of pay, that was considered and those part time Vocational Instructors at one stroke had been brought under regular full time employment with regular time scale of pay. From that date onwards when they were brought under regular employment on full time basis, their services were taken into account or calculated for all the purposes of service and retiral benefits.
12.However, long years of service rendered by them as part time Vocational Instructors, by those persons, have not been taken into account for any purpose like service benefits or pensionary benefits. Therefore, in order to seek the benefit of taking such period also for the purpose of service and pensionary benefits, number of such persons 8/31 http://www.judis.nic.in W.P.(MD)No.10041 of 2020 approached this Court, where many number of writ petitions were decided, ultimately, this Court found that, the service rendered by part time Vociational Instructors cannot be fully brushed aside as such. Eventhough they had been working as part time Vocational Instructors, taking into account the nature of the job, atleast 50% of their service rendered in that capacity can be taken into account for the purspose of service and pensionary benefits.
13.The said decision made by the Writ Court in number of cases have been unsuccessfully taken as intra-Court appeals by the State and ultimately, before the Hon'ble Supreme Court also.
14.Resultant situation was that, those orders passed by the Writ Court having been confirmed by the Writ Appellate Bench of this Court, as well as the Hon’ble Supreme Court, have been chosen to be implemented. Accordingly, that orders were implemented. Thus, those, who rendered service as part time Vocational Instructors, their 50% of service, before they were brought under full time service, was taken into 9/31 http://www.judis.nic.in W.P.(MD)No.10041 of 2020 account for service and pensionary benefits.
15.This position is continued for the last few years. A number of writ petitions have been filed before the Writ Court both in the Madurai Bench as well as at the Principal Seat, where the earlier orders passed by this Court have been followed. When that being the position, in a batch of writ appeals on the very same issue in W.A.(MD)No.882 of 2017 etc., batch, a Division Bench of this Court, even though has confirmed the view taken by the Writ Court, has put a rider stating that, the benefits now sought to be extended i.e., 50% of past service rendered by so many Teachers as Vocational Instructors have to be taken into account for the purpose of service and pensionary benefits, since number of cases have already been filed and those cases were disposed of by taking a decision in favour of the Teachers/petitioners, such a trend cannot be permitted to continue. Therefore, the Division Bench has put a fullstop by fixing a cut off date i.e., the date of judgment (06.04.2018). In other words, the cases already filed and disposed or already filed and are pending as on 06.04.2018 alone would be entitled to get the same relief and any fresh petitions are filed hereafter i.e., after 06.04.2018, those are not entitled to get such benefits.
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16.When that was the position, yet another batch of writ petitions filed either prior to the cut off date 06.04.2018 or after the cut off date as fixed by the Division Bench, referred to above, were grouped together and came to be disposed by this Court, where I had an occasion to pass orders disposing all those writ petitions by order dated 09.07.2018.
17.To appreciate the said order and for easy reference, the relevant portion of the order dated 09.07.2018 made in W.P(MD).No.14365/2014 etc., batch in the matter of A.Ramalingam Vs., State of Tamil Nadu, rep., by its Secretary, School Education Department, Fort St.George, Chennai-09 are extracted hereunder:
35. In the said judgment, dated 03.07.2018, the Division Bench of this Court has passed the following order:
“4. When the matter is taken up for hearing, the learned counsel appearing for the respondent submitted that the issue involved in the present writ appeal is covered by the decision of a Division Bench of this Court dated 21.04.2017 made in W.A(MD)Nos.392, 393 and 389 of 2017 etc., batch, wherein the Division Bench held as follows:
“10. The Writ Court further observed that in the light of the decision of the Hon'ble First Bench, the Rule itself stands impliedly overruled. That apart, it was held that if the benefit is not granted, 11/31 http://www.judis.nic.in W.P.(MD)No.10041 of 2020 it would amount to discriminating the similarly placed persons. Further, the Writ Court noted that the Government has chosen to extend certain benefits in respect of part time workers as found in G.O.Ms.No.39, 13.06.2011 and therefore, the benefit cannot be denied to part time vocational instructors by stating that the said Government Order is applicable to panchayat clerks and not to vocational instructors.
11. Learned Additional Government Pleader after elaborately referring to the factual matrix placed reliance on the decision of the Division Bench in the case of the Principal Secretary Social Welfare and Nutritious Meal Programme Department and others vs. M.Palanikani made in W.A.Nos.587 etc., batch dated 03.12.2014 and submitted that the Division Bench has allowed the appeals and set aside the order passed by the learned single Judge wherein relief was granted to count 50% of the services in the noon meal scheme.
12.Firstly, we may point out that the terms of employment of staff in the noon meal scheme are not in pari materia with that of the terms of appointment of vocational instructors. This fact cannot be denied by the appellants. Furthermore, in paragraph 21 of the said judgment, the Court framed the question which has to be decided with a specific reference and a cutt off date which had been fixed namely, on 01.04.2003. Admittedly, all the writ petitioners were appointed much prior to the said date and the decision of the Hon'ble Division Bench is factually distinguishable. Thus, we are of the considered view that the impugned order having been rendered by referring to and relying upon the decisions of the Hon'ble First Bench, we find no grounds to take a different view in the matter. Accordingly, the writ appeals are dismissed.
No Costs. Consequently, connected miscellaneous petitions are closed.”
5. Mr.Baskarapandian, learned Special Government Pleader appearing for the appellants also fairly submitted that the issue involved in the present writ appeal is covered by the decision relied on by the learned counsel for the respondent.
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6. In view of the submissions made by the learned counsel on either side, following the judgment made in W.A(MD)Nos.392, 393 and 389 of 2017 etc., batch dated 21.04.2017, the writ appeal is liable to be dismissed and accordingly, the same is dismissed. No Costs. Consequently, connected Miscellaneous Petition is closed.”
36. From the reading of the aforesaid judgments, especially, the later decisions rendered by two Division Benches of this Court, it become clear that, the view taken by this Court insofar as the confirmation of benefit of calculating 50% of the past services rendered by the employees, who worked as Vocational Instructors or otherwise on temporary basis before they brought in regular time scale of pay and regular absorption, had been consistently followed by various Division Benches of this Court.
37. There had been earlier judgments of the Division Benches and there had been later judgments of the Division Benches including the recent one passed, just before a week or two. While so, the only Division Bench decision dated 06.04.2018 made in W.A.No.882/2017, as has been relied upon by the learned Special Government Pleader takes a slightly different view, where also, the principle in extending the said benefit had been accepted, but the only prohibition was that the same shall not be extended hereafter to any such employee, who comes to the Court, after 06.04.2018. In this regard, the learned counsel for the petitioners have relied upon a Full Bench judgment of the Patna High Court reported in AIR 1987 Patna 191, in Amarsingh Yadav and another v.
Shanti Devi and others.
38. One of the question posed before the Full Bench for resolvement is as follows: 13/31
http://www.judis.nic.in W.P.(MD)No.10041 of 2020 “(1) Where there is a direct conflict between two decisions of the Supreme Court, rendered by co-equal Benches, which of them should be followed by the High Court and the Court below ?”
39. After elaborate consideration, the Full Bench has given its answer, which reads thus:
“24. To conclude on this aspect, it is held that where there is a direct conflict between two decisions of the Supreme Court rendered by co- equal Benches, the High Court must follow that judgment which appears to it to state the law more elaborately and accurately. The answer to question (1) posed at the outset is rendered in these terms.”
40. Therefore, the principle was, as enunciated in the said Full Bench judgment of the Patna High Court that, if two conflicting decisions are available, rendered by co-equal benches, the High Court must follow the judgment, which appears to it to state the law more elaborately and accurately.
41. If the said principle is applied to the facts of the present case, except the decision dated 06.04.2018 of a Division Bench of this Court, no other Division Bench either prior to or after to that, has taken any different view, as the one taken in the said judgment and in all other Division Bench judgments, a uniform and consistent stand taken by this Court was that, the benefit of taking into account 50% of the services rendered by the employees before they brought into regular service shall be the basis for calculating for the purpose of pension and retiral benefits. Even in the said judgment dated 06.04.2018 in W.A.No.882/2017, that view was accepted and endorsed by the said Division Bench also, but the only embargo the Division Bench has put in that, the said benefit cannot be extended to those who come to the Court hereafter. In order to meet out the said embargo, the aforesaid judgments of the 14/31 http://www.judis.nic.in W.P.(MD)No.10041 of 2020 Hon'ble Apex Court, as referred to above, with regard to the continuous cause of action and the benefit, which has been declared by the Court through a judgment in rem has to be extended to similarly placed persons, had been quoted.
42. In view of the settled legal position, as has been declared in all these decisions, all these petitioners, even though filed writ petitions recently and some of them might have filed after 06.04.2018 i.e., the date, on which the aforesaid Division Bench Judgment had been rendered by this Court, in the opinion of this Court, are entitled to get the similar benefits, as that of the benefits which have already been given to the number of similarly placed employees / Teachers.
43. Therefore, the observations made in the aforesaid judgment made in W.A.No.882 of 2017 and etc., batch, as has been heavily relied upon by the learned Special Government Pleader in this regard, would no way advance the case of the respondents and that no way be helpful to the respondents to deny the lawful right of the petitioners, which have already been accrued and has been continuously accruing every month because the pensionary benefits are to be disbursed till the death of the employee / death of the legal heirs. Therefore, the said objection raised by the respondents are liable to be rejected, accordingly, they are rejected.
44. In view of the aforesaid judgments, wherein the issue as has been put forth by the learned counsel for the petitioners, having been dealt with and decided more than once by the Writ Court and the same has been confirmed by the Division Bench of this Court more than once and in cases, where SLP preferred before the Hon'ble Supreme Court, wherein also the view taken by this Court has been confirmed, all 15/31 http://www.judis.nic.in W.P.(MD)No.10041 of 2020 these petitioners are entitled to, for calculating 50% of the past services, rendered by each of the petitioners in the respective employment before they got absorbed by bringing them under the time scale of pay irrespective of the years of service, for the purpose of pensionary benefits. Hence, these petitioners also shall be entitled to get the same benefits and accordingly, all these writ petitions are fit to succeed.
45. In the result, these writ petitions are allowed and the respective respondents in each of the writ petitions are hereby directed to take into account the 50% of the past services rendered by each of the petitioners either as Vocational Instructors or any other employment either as a Part Time / Full time / adhoc / temporary / daily wages employees before they brought in under the regular time scale of pay on permanent basis or absorption and by calculating the said 50% of their past service, pension eligibility and pension enhancement or difference of pay and pension shall be calculated and disbursed in favour of the respective petitioners. After fixing the revised pension by taking into account the past 50% services, the revised pension arrears shall be calculated and to be disbursed to the petitioners within a period of 12 weeks from the date of receipt of a copy of this order. It is needless to mention that the petitioners shall continue to receive the revised pension.
46. Insofar as W.P.(MD)Nos.6065 of 2016 and 6789 of 2017 are concerned, the petitioners since having not been paid any pension so far, the aforesaid exercise shall be undertaken by the respective respondents in that writ petitions also and the entire arrears of pension shall be disbursed to the said petitioners within the said time frame indicated 16/31 http://www.judis.nic.in W.P.(MD)No.10041 of 2020 above.
47. Insofar as W.P.(MD)No.11896 of 2018 is concerned, since the petitioner is the widow of the employee, the pensionary benefits shall be calculated, accordingly, as indicated, and arrears till the death of the petitioner's husband shall be calculated and thereafter, the family pension arrears shall be calculated and all the arrears shall be disbursed to the petitioner i.e., the widow of the employee, within the period of twelve weeks, from the date of receipt of a copy of this order.
48. With these directions all these writ petitions are allowed as indicated above. No costs.“
18.In the mean while, persuant to the order passed by the Division Bench in W.A(MD).No.882 of 2017 etc., batch dated 06.04.2018, the Government has come forward to issue a Government Order in G.O.Ms.No. 194, School Education Department, dated: 12.09.2018 and the import of the said order has already been extracted herein above, where they fixed two cut off date, one is 01.04.2003 and another one is 06.04.2018, according to which, those who have been brought under regular time scale of pay and regular full time job on or after 01.04.2003 and those who filed writ petitions after the cut of date i.e. after 06.04.2018, would not be entitled to get benefit of calculating 50% of 17/31 http://www.judis.nic.in W.P.(MD)No.10041 of 2020 their earlier service.
19.When another group of writ petitions in W.P(MD).No. 22785 of 2019 etc., batch came up for consideration before a learned Judge of this Court, the learned Judge vide a common order dated 05.11.2019 in the matter of D.Ramachandran, Vs., State of Tamilnadu rep., by the Principal Secretary, School Education Department, Fort St.George, Chennai, has considered the import of G.O.Ms,No.194, dated 12.09.2018 and by taking into account of the order dated 09.07.2018, referred to above and other connected cases, has passed the following order:
“4. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and perused the materials available on record. 3/8 http://www.judis.nic.in W.P(MD)No.20569 of 2019
5. The petitioners are seeking 50% of their service rendered by them as part time vocational instructors to be counted for calculating pension payable to them. This issue was already considered by this Court in W.P.No. 14365 of 2014 etc., batch, relied on by the learned counsel for the petitioners. This Court granted relief to the similarly placed persons, like that of the petitioners herein. The appeal and Special Leave Petition filed by the Government were dismissed. This Court, by order dated 09.07.2018 after extracting the earlier order of this Court in paragraphs 44 and 45, has held as follows:-
“44. In view of the aforesaid judgments, wherein 18/31 http://www.judis.nic.in W.P.(MD)No.10041 of 2020 the issue as has been put forth by the learned counsel for the petitioners, having been dealt with and decided more than once by the Writ Court and the same has been confirmed by the Division Bench of this Court more than once and in cases, where SLP preferred before the Hon'ble Supreme Court, wherein also the view taken by this Court has been confirmed, all these petitioners are entitled to, for calculating 50% of the past services, rendered by each of the petitioners in the respective employment before they got absorbed by bringing them under the time scale of pay irrespective of the years of service, for the purpose of pensionary benefits. Hence, these petitioners also shall be entitled to get the same benefits and accordingly, all these writ petitions are fit to succeed. 4/8 http://www.judis.nic.in W.P(MD)No.20569 of 2019 45. In the result, these writ petitions are allowed and the respective respondents in each of the writ petitions are hereby directed to take into account the 50% of the past services rendered by each of the petitioners either as Vocational Instructors or any other employment either as a Part Time / Full time / adhoc / temporary / daily wages employees before they brought in under the regular time scale of pay on permanent basis or absorption and by calculating the said 50% of their past service, pension eligibility and pension enhancement or difference of pay and pension shall be calculated and disbursed in favour of the respective petitioners. After fixing the revised pension by taking into account the past 50% services, the revised pension arrears shall be calculated and to be disbursed to the petitioners within a period of 12 weeks from the date of receipt of a copy of this order. It is needless to mention that the petitioners shall continue to receive the revised pension.” 19/31 http://www.judis.nic.in W.P.(MD)No.10041 of 2020
6. When a relief is granted to an employee with regard to counting 50% of service rendered by him as part time employee, the same cannot be restricted only to the persons filed writ petition or the persons filed the writ petitions on or before 6.4.2018. The said condition imposed by the impugned Government Order, is arbitrary and there is no reason given by the Government for fixing such cut-off date. In view of the same, the said 5/8 http://www.judis.nic.in W.P(MD)No.20569 of 2019 condition is invalid and is liable to be set aside. For the above reason, the condition imposed is quashed. The respondents are directed to consider the representation of the petitioners for counting 50% of the service rendered by them as part time vocational instructors taking into account the various orders passed in the writ petitions and judgment of this Court, dated 21.04.2017, made in W.A.(MD)No.392 of 2017 etc., batch.
7. With the above observations and directions, all the writ petitions are allowed. No costs. Consequently, connected miscellaneous petitions are closed. “
20.It is in these circumstances, now the impugned order dated 07.07.2020 has been passed, where the third respondent having noted the aforesaid developments, especially, the decision of the Division Bench, dated 06.04.2018 as well as G.O.Ms.No.194, dated 12.09.2019 has rejected the request of the petitioner through the impugned order.
21.To have an easy reference, the relevant portion of the impugned order is extracted hereunder:20/31
http://www.judis.nic.in W.P.(MD)No.10041 of 2020 “5.Nkw;fz;l #o;epiyapy;> khz;gik nrd;id cah;ePjpkd;wk;/nrd;id cah;ePjpkd;w kJiu fpis jPhg ; ;ghizfSf;fpzq;fTk;> nrd;id cah;ePjpkd;w Nky;KiwaPl;L tof;F vz;fs;.882> 808/2017> 1224, 1395> 1471> 1283 kw;Wk; 1323/2016 kw;Wk; C.M.P.Nos.12269> 11319/17> 15744> 15745> 17938> 17939> 18318> 18319> 17906> 17919 kw;Wk; 17159/2016-,y; ngw;g;gl;l 06.04.2018-Mk; ehspl;l jPhg ; hizapid nray;gLj;j Ntz;bAk;> gs;spf; fy;tp ,af;Fehpd; fUj;JUtpid muR ftdKld; ghprPypj;J> mjid Vw;fyhk; vd KbT nra;J> mt;thNw 01.04.2003-f;F Kd;dh; Kiwahd Cjpa tpfpjj;jpy; nfhz;Ltug;gl;l muR kw;Wk; muR cjtp ngWk; cah;ePjpkd;wk;/nrd;id cah;ePjpkd;w kJiu fpisapy; tof;Ffs; njhlh;e;J jPhg ; ;ghiz ngw;Ws;s kw;Wk; 06.04.2018Mk; ehs; tiu tof;F njhLj;J tof;F epYitapy; cs;s ,th;fis xj;j njhopw;fy;tp MrphpahfSf;F kl;Lk; mth;fspd; gFjpNeu gzpf;fhyj;jpy; 50 tpOf;fhl;il Xa;t +jpaj;jpw;F fzf;fpy; vLj;Jf;nfhs;s mDkjpj;J muR MizapLfpwJ.
Nkw;fz;l tof;fpd;jPh;g;ghizapYk; kw;Wk; murhizapy; njhptpj;Js;sthWk; md;dhhpd; kDtpid tpjpfspd; gb ghprPyid nra;jjpy;
1.01.04.2003f;F Kd;dh; Kiwahd Cjpa tpfpjj;jpy; nfhz;Ltug;glhky;> 09.02.2007 Kjy;
KONeu njhopw;fy;tp Mrphpauhf epakdk; ngw;W Kiwahd cjpatpfpjj;jpy; gzpapy; Nrh;e;Js;shh;.
2.06.04.2018f;F Kd;dh; tof;Fj; njhLf;fhky;> mjd; gpwF tof;F njhlh;e;J> 09.01.2020 md;W jPhg ; ;G ngw;Ws;shh;.
vdNt> murhiz (epiy) vz;.194> gs;spf;fy;tp (gf 7-1)j;Jiw ehs; 12.09.2018d;gb> md;ddhh; 50 rjtPj gzpf;fhyj;jpid Xa;t +jpaj;jpw;F vLj;Jf;nfhs;sf; Nfhhpa kDthdJ tpjpfspd;gb ghprPyid nra;a ,ayhJ vd;gjhy;> md;dhuJ Nfhhpf;if epuhfhpj;J Mizaplg;gLfpwJ.” 21/31 http://www.judis.nic.in W.P.(MD)No.10041 of 2020
22.There are two reasons cited. One is cut off date based on G.O.Ms.No.194 and another one is cut off date based on 06.04.2018 Division Bench order, whether these reasons can be sustained or not, is the only question to be decided herein.
23.In this context, insofar as G.O.Ms.No.194, School Education Department, dated: 12.09.2018 is concerned, the same has been considered by a learned Judge of this Court by order dated 05.11.2019 and the said condition imposed by fixing the cut off date has been set aside or quashed. The relevant portion of the order has already been quoted herein above.
24.Insofar as the cut off date fixed by the Division Bench order, dated 06.04.2018 is concerned, it is to be noted that, as against the said decision made by the Writ Court by order dated 09.07.2018 in W.P(MD). No. 14365 of 2014 etc., batch, intra-court appeal has been filed by the respondent State and one such writ appeal was W.A(MD).No.517 of 2020, which came to be disposed of by a Division Bench of this Court in the recent order dated 13.08.2020 in the matter of State of Tamilnadu, 22/31 http://www.judis.nic.in W.P.(MD)No.10041 of 2020 represented by its Secretary School Education Department, Fort St.Geroge, Chennai and others Vs., S.Durairaj and another.
25.In order to have the better understanding of the latest Division Bench order, which gives answer to all these issues raised herein, the relevant portion of Division Bench order, dated 13.08.2020 are extracted hereunder:
“........
6. Challenging the legality of the said order passed in W.P.(MD).No.15904 of 2018, the present Writ Appeal is filed.
7. The learned Special Government Pleader appearing for the appellants/official respondents has drawn the attention of this Court to the common judgment dated 06.04.2018 in W.A.No.882 of 2017, etc., batch [Government of Tamil Nadu, represented by its Secretary to Government, School Education Department, Chennai – 9 and Others v. K.Pachaiyappan and other] and it is the forceful submission of the learned Special Government Pleader appearing for the appellants/official respondents that the Division Bench while disposing of the Writ Appeal had shifted the cut-off date as the delivery of the said judgment, viz., 06.04.2018 and admittedly, the affidavit in the writ petition came to the sworn only on 17.07.2018, which is beyond cut-off date and that apart, though the writ petitioner had attained the age of superannuation on 04.06.2012, had waited for nearly six years on the sidelines and after knowing about the disposal of the cases, suddenly jumped into bandwagon and claimed relief and since the 23/31 http://www.judis.nic.in W.P.(MD)No.10041 of 2020 respondent/writ petitioner is guilty of delay and laches, he is not entitled to get any relief in this writ appeal.
8. During the course of arguments, the attention of this Court was also invited to the decision rendered by a Full Bench of this Court in Government of Tamil Nadu, Represented by its Secretary to Government, Public Works Department and others v. R.Kaliyamoorthy, reported in (2019) 6 CTC 705, wherein, one of the issues is relating to the counting of 50% of the service for the purpose of terminal benefits, in the light of the proviso to Rule 2 of the Tamil Nadu Pension Rules, 1978 and in paragraph 45, answered the references 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 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 24/31 http://www.judis.nic.in W.P.(MD)No.10041 of 2020 the cut off date and later appointed under Rule 10
(a) (i) of Tamil Nadu State and Subordinate Service Rules before 01.04.2003 and absorbed into regular service after 01.04.2003 will not be entitled to count half of their past service for the purpose of determination of qualifying service for pension.
(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."
9. No doubt, the writ petitioner had approached the Court with a few months delay and it is not in dispute that but for the fixation of cut-off date, he would have been entitled to the benefits of service rendered by him as a Double Part Time Vocational Instructor. The learned Judge in the impugned common order had also referred to the above cited common judgment dated 06.04.2018, made in W.A.No.882 of 2017 etc., and having noted the fact that persons similarly placed have been granted the benefits and also taking note of various pronouncements of the Hon'ble Supreme Court of India, had held that the writ petitioners are entitled to such benefits.
10. Admittedly, the fact of the case would disclose that the petitioner had approached the Court with a delay of three months and in the light of answering of the references in paragraph No.45 of the above cited Full Bench judgment [(2019) 6 CTC 705] (supra), this Court finds no merit in this Writ Appeal. However, it is made clear that if at all any future claim is made by any persons who are similarly placed like that of the writ petitioners who had worked as Single/Double Part Time Vocational Instructors, they are not entitled for any interest on the settlement of the retiral/terminal benefits. 25/31 http://www.judis.nic.in W.P.(MD)No.10041 of 2020
11. In the result, Writ Appeal is dismissed, subject to the above observations, confirming the order dated 23.07.2018, passed in W.P(MD)No.15904 of 2018. No costs. Consequently, the connected civil miscellaneous petition is also dismissed.”
26.By the latest Division Bench order, the cut off date fixed by the earlier Division Bench order, dated 06.04.2018 made in W.A.No.882 of 2017 etc., batch was taken into account and ultimately, at Para 10 of the said order, dated 13.08.2020, as extracted herein above, the Division Bench has given only one rider stating that, those who filed writ petitions seeking the similar relief of considering 50% of their past service for the purspose of service and pensionary benefits, are not entitled to get any interest on settlement of the retiral/terminal benefits. In all other respects, the order of the Writ Court, dated 09.07.2018 has been confirmed by the Division Bench in the aforesaid order.
27.Therefore, as on today, the legal as well as the factual position would be that, the cut of date fixed as 06.04.2018 cannot be imposed against the future litigants, as the cause of action for those future litigants to get pension and service benefits is the recurring and continuous one and therefore, no such cut off date can be fixed, that is the basis, on which, the latest Division Bench order, dated 13.08.2020 has confirmed 26/31 http://www.judis.nic.in W.P.(MD)No.10041 of 2020 the order passed by the Writ Court and directed to extend the benefit to those, who filed subsequent writ petitions also.
28.In respect of the cut off date fixed by the Government through G.O.Ms.No.194 is concerned, the said fixation of cut off date having been found invalid by the Writ Court by order, dated 05.11.2019 in the matter of T.Ramachandran, Vs., State of Tamil Nadu and others cited supra, those conditions have been quashed. Moreover such fixation is contrary to Para 45(i) of the Full Bench Judgment in 2019 (6) CTC 705 cited supra.
29.Therefore, both the reasons cited in the impugned order are either non-est or cannot be put against the petitioner or similarly placed persons. The only relief given by the latest Division Bench order, dated 13.08.2020 for the State is that, those who filed writ petition, after 06.04.2018, would not be entitled to get any interest, when they are getting the retiral benefits.
30.Except this rider, in all other aspects, where the Writ Court taken decision for several years in number of writ petitions, which were 27/31 http://www.judis.nic.in W.P.(MD)No.10041 of 2020 alreary confirmed by number of Division Bench judgments, have once again been confirmed and reiterated by the latest Division Bench judgment, dated 13.08.2020, as against which, no appeal has been filed. The prevailing law is in favour of the petitioners only and not in favour of the respondents. Therefore, this Court has no hesitation to hold that the impugned order for the reasons cited therein, cannot be sustained. Therefore, it is liable to be quashed. Accordingly it is quashed and the matter is remitted back to the third respondent for re- consideration. While re-considering the same, the third respondent shall take into account the aforesaid legal position and accordingly pass necessary orders extending the benefits of taking into account of the 50% of past service rendered by the petitioner as Vocational Instructor and accordingly, whatever benefits available to him both service as well as pensionary benefits can be extended to him. The necessary revised order after reconsideration, as indicated above, shall be passed by the third respondent within a period of two(2) months from the date of receipt of a copy of this order.
28/31 http://www.judis.nic.in W.P.(MD)No.10041 of 2020
31.With the above directions, this Writ Petition is ordered accordingly. However, there shall be no order as to costs.
25.08.2020 Index : Yes Internet : Yes rmk 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 Secretary, State of Tamil Nadu, Department of School Education, Fort St.George, Chennai-9.
2.The Joint Director of School Education, (Vocational) College Road, Chennai-6.
3.The Chief Education Officer, Virudhunagar District, Virudhunagar.
4.The District Educational Officer, Srivilliputhur, Virudhunagar District.
R.SURESH KUMAR ,J.
29/31 http://www.judis.nic.in W.P.(MD)No.10041 of 2020 rmk W.P.(MD)No.10041 of 2020 25.08.2020 30/31 http://www.judis.nic.in