Madras High Court
K.Kandasamy … vs The Government Of Tamil Nadu on 17 March, 2022
Author: P.D. Audikesavalu
Bench: P.D. Audikesavalu
W.P. No. 16683 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.03.2022
CORAM
THE HON'BLE MR. JUSTICE P.D. AUDIKESAVALU
W.P. No. 16683 of 2019
K.Kandasamy … Petitioner
-vs-
1. The Government of Tamil Nadu,
Rep. by its Principal Secretary to Government,
Revenue Department,
Secretariat,
Chennai – 600 009.
2. The Principal Secretary cum Commissioner of Revenue Administration,
Chepauk,
Chennai – 600 005.
3. The District Collector,
Namakkal District,
Namakkal.
4. The Tahsildar,
Namakkal Taluk,
Namakkal.
5. The Accountant General (A & E),
No. 367, Anna Salai,
Teynampet,
Chennai – 600 018. ... Respondents
Prayer:- Writ Petitions filed under Article 226 of the Constitution of India,
1950, praying to issue a Writ of Mandamus, directing the Respondents herein
to grant minimum pension from 01.10.2007 onwards to the petitioner and to
pay the arrears within a limited time frame.
https://www.mhc.tn.gov.in/judis
1/17
W.P. No. 16683 of 2019
For Petitioner : Mr. S.Balakrishnan for Mr. M.Ravi
For Respondents : Mrs. C.Sangamithirai,
Special Government Pleader
(for R1 to R4)
Mr. S.Balaji (for R5)
ORDER
Heard Mr. S.Balakrishnan, Learned Counsel appearing for the Petitioner, Mrs. C.Sangamithirai, Learned Special Government Pleader appearing for the First to Fourth Respondents and Mr. S.Balaji, Learned Counsel for the Fifth Respondent and perused the materials placed on record, apart from the pleadings of the parties.
2. The Petitioner served as Village Administrative Officer from 09.10.1998 to 30.09.2007 which works out to a period of 8 years 11 months and 21 days. The qualifying period of 10 years has been stipulated for a person to be eligible for pension under Rule 43 of the Tamil Nadu Pension Rules, 1978 (hereinafter referred to as the 'Rules' for short). That apart, it has been provided in Rule 11(4) of the Rules, which has been introduced by way of amendment by G.O. (Ms) No. 41, Finance (Pension) Department dated 09.02.2010, as follows:-
https://www.mhc.tn.gov.in/judis 2/17 W.P. No. 16683 of 2019 “ Half of the service rendered under the State Government in non-provincialised service, consolidated pay, honorarium or daily wages basis on or after 1st January 1961 in respect of Government employees absorbed in regular service before 1st April 2003 shall be counted for retirement benefits along with regular service, subject to the following conditions, namely:-
(i) Service rendered in non-provincialised service, consolidated pay, honorarium or daily wages basis shall be in a job involving whole time employment;
(ii) Service rendered shall be on consolidated pay, honorarium or daily wages basis paid on monthly basis and subsequently absorbed in regular service under the State Government;
(iii) Service rendered in non-provincialised service, consolidated pay, honorarium or daily wages basis shall be followed by absorption in regular service before 1st April 2003 without a break.
Provided that this sub-rule is applicable to all employees who rendered service under the State Government in non- https://www.mhc.tn.gov.in/judis 3/17 W.P. No. 16683 of 2019 provincialised service, consolidated pay, honorarium or daily wage basis on or after 1st January 1961 and absorbed in regular service before 1st April 2003.
Provided further that wherever there was break in service before their absorption in regular service before 1st April 2003, the same shall be specifically condoned by the orders of the Head of Departments, in which the employees were regularly absorbed and such period of break, shall not count for the purpose of pensionary benefits.” Prior to his appointment as Village Administrative Officer, the Petitioner had earlier worked for a period of 6 months till 28.02.1980 as Village Karnam. According to the Petitioner, persons, who are similarly placed to him, who did not have the required service of 10 years, have been granted minimum pension by exempting them from Rule 43 of the Rules and he had made a representation in that regard to extend the same benefit to him and no orders have been passed thereon. In that backdrop, he has filed this Writ Petition.
3. Learned Counsel appearing for the Petitioner vehemently pleaded that the period of service rendered by the Petitioner as 'Village Karnam' has to be treated as whole time employment and in the absence of any material produced https://www.mhc.tn.gov.in/judis 4/17 W.P. No. 16683 of 2019 to the contrary, the benefit of considering that period for eligibility for pension must not be deprived to him.
4. In this context, judicial notice must be taken of the decision of the Hon'ble Supreme Court of India in K.Rajendran -vs- State of Tamil Nadu reported in [(1982) 2 SCC 273] where the history of evolution of the post of Village Officers and the part-time nature of functions performed by them have been traced out while upholding the constitutional validity of the Tamil Nadu Abolition of Posts of Part-time Village Officers Act, 1981, in the following words:-
“2. In Tamil Nadu, as in other parts of India, the village has been the basic unit of revenue administration from the earliest times of which we have any record. The administration was being carried on at the lowest level by a chain of officers in regular gradation one above the other at the commencement of the Christian era. The same system has been in vogue until now. It was generally known as the barabaluti system ordinarily consisting of 12 functionaries. In Tamil Nadu, these functionaries were known as (1) headman, (2) karnam or accountant, (3) shroff or notazar, (4) nirganti, (5) toty or https://www.mhc.tn.gov.in/judis 5/17 W.P. No. 16683 of 2019 taliary, (6) potter, (7) smith, (8) jeweller, (9) carpenter, (10) barber, (11) washerman, and (12) astrologer. Of them, the first five only rendered service to Government.
3. The headman who goes by various names such as monigar, potail, naidoo, reddy, peddakapu etc. is an important officer. He represented the Government in the village, collected the revenue and had also magisterial and judicial powers of some minor nature. As a Magistrate he could punish persons for petty offences and as a Judge could try suits for sums of money or other personal property up to Rs 10 in value, there being no appeal against his decision. With the consent of the parties, he could adjudicate civil claims up to Rs 100 in value.
The headman has been generally one of the largest landholders in the village having considerable influence over its inhabitants. The karnam or the village accountant maintained all the village accounts, inspected all fields in the village for purposes of gathering agricultural statistics, fixation of assessment and prevention and penalisation of encroachments, irregular use of water and verification of tenancy and enjoyment. The nirgantis guarded the irrigation sources and https://www.mhc.tn.gov.in/judis 6/17 W.P. No. 16683 of 2019 regulated the use of water. The toty or taliary assisted the village accountant in his work. By the end of the nineteenth century, two Acts were brought into force in the Presidency of Madras for the purpose of regulating the work of some of the Village Officers. The Madras Proprietary Estates' Village Service Act, 1894 (Madras Act 2 of 1894) dealt with three classes of Village Officers viz. Village Accountants, Village Headmen and Village Watchmen or police officers in permanently settled estates, in unsettled palaiyams and in inam villages. It provided for their appointment and remuneration and for the prevention and summary punishment of misconduct or neglect of duty on their part and generally for securing their efficiency. The Madras Hereditary Village Offices Act, 1895 (Madras Act 3 of 1895) regulated the succession to certain other hereditary village offices in the Presidency of Madras; for the hearing and disposal of claims to such offices or the emoluments annexed thereto; for the appointment of persons to hold such offices and the control of the holders thereof. The Village Officers dealt with by this Act were (i) village Munsifs,
(ii) potails, monigars and peddakapus, (iii) karnams, (iv) https://www.mhc.tn.gov.in/judis 7/17 W.P. No. 16683 of 2019 nirgantis, (v) vettis, totis, and tar dalgars and (vi) talayaris in ryotwari villages or inam villages, which for the purpose of village administration, were grouped with ryotwari villages.
4. Under both these statutes, the village offices were considered as hereditary in character and the succession to all hereditary village offices devolved on a single heir according to the general custom and rule of primogeniture governing succession to impartible zamindaris in Southern India. When the person who would otherwise be entitled to succeed to a hereditary village office was a minor, such minor was being registered as the heir of the last holder and some other person qualified under the statutes in question to discharge the duties of the office was being appointed to discharge the duties of the office until the person registered as heir on attaining majority or within three years thereafter was qualified to discharge the duties of the office himself when he would be appointed thereto. If the person registered as heir remained otherwise disqualified for three years after attaining majority, he would be deemed to have forfeited his right to the office and on such forfeiture or on his death, the vacancy had to be filled up in https://www.mhc.tn.gov.in/judis 8/17 W.P. No. 16683 of 2019 accordance with the provisions of the statutes as if he was the last holder of the office. It is stated that in cases to which the above two statutes were inapplicable, provision had been made by the Standing Orders promulgated by the Board of Revenue which were known as the Board's Standing Orders for appointing Village Officers again generally on a hereditary basis. Some of the other distinct features of the service conditions of the Village Officers appointed under the Madras Act 2 of 1894 or the Madras Act 3 of 1895 or the Board's Standing Orders were that they were part-time employees of the Government; that the records maintained by them were allowed to be retained in their houses; that there was no attendance register and no fixed hours of duty were prescribed in their case. They were appointed directly by the Revenue Divisional Officer and against his order, an appeal lay to the District Revenue Officer and then a revision to the Board of Revenue and a second revision to Government. They were not constituted into any distinct service. There was no provision for reservation of posts of Village Officers for Scheduled Castes/Scheduled Tribes and backward classes. There was no https://www.mhc.tn.gov.in/judis 9/17 W.P. No. 16683 of 2019 minimum general qualification prescribed prior to the year 1970 for persons to be appointed as Village Officers under the said statutes or the Board's Standing Orders. It was enough if they were able to read and to write. No period of probation was prescribed after they were appointed. The Fundamental Rules applicable to all other State Government servants, the Pension Rules and the Leave Rules were not applicable to these Village Officers. They could take up part-time work or occupation after securing necessary permission from the concerned Revenue Authorities. There was no age of superannuation fixed in their case and they were not entitled to retirement benefits such as gratuity and pension. All village headmen including those who belonged to Scheduled Castes and Scheduled Tribes had to furnish security in the form of property or cash the estimated value of which was not less than half the amount of land revenue and loan demand of the village. They could not be transferred outside their district. In fact very rarely they were transferred. During the period of leave, no honorarium was paid to them and during the period of suspension, no subsistence allowance was paid. The https://www.mhc.tn.gov.in/judis 10/17 W.P. No. 16683 of 2019 honorarium paid to them was a fixed amount with no element of dearness allowance. ” It is beyond any pale of doubt from the said passages that the services of the Petitioner as 'Village Karnam' prior to 28.02.1980 was only on part-time basis and cannot be taken into account for eligibility for pension under the Rules. It would also assume significance that the Village Officers (including the post of 'Village Karnam' hereto held by the Petitioner) did not entitle them to receive any pension after retirement from service as there was no prescribed age of superannuation for them and the subsequent employment as Village Administrative Officer with effect from 15.04.1984 in the service of the State Government after abolition of the posts of Village Officer was in pursuance of the directions issued in that binding ruling. This view taken is also supported by the decision of this Court in C.Chellaswamy -vs- State of Tamil Nadu (Order dated 10.07.2019 in W.P. (MD) Nos.3496 to 3498 of 2015) in the case of persons similarly situated to the Petitioner, which has been cited by the learned Counsel for the Respondents.
5. At the same time, it would be relevant to point out here that Rule 82 of the Rules provides as follows:-
https://www.mhc.tn.gov.in/judis 11/17 W.P. No. 16683 of 2019 “82. Power to relax:-- Where any Department of the Government is satisfied that the operation of any of these rules causes undue hardship in any particular case, the Department may by order for reasons to be recorded in writing, dispense with or relax the requirements of that rule to such extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner.
Provided that no such order shall be made except with the concurrence of the Finance Department.” While construing a similar provision contained in Rule 88 of the Central Civil Services (Pension) Rules, 1972, the Hon'ble Supreme Court of India in Union of India -vs- Gandiba Behera (Order dated 08.11.2019 in Civil Appeal No. 8497 of 2019) has observed as follows:-
“25. We are also of the opinion that the authorities ought to consider their cases for exercising the power to relax the mandatory requirement of qualifying service under the 1972 Rules if they find the conditions contained in Rule 88 stand fulfilled in any of these cases. We do not accept the stand of the appellants that just because that exercise would be prolonged, https://www.mhc.tn.gov.in/judis 12/17 W.P. No. 16683 of 2019 recourse to Rule 88 ought not to be taken. The said Rules is not number specific, and if undue hardship is caused to a large number of employees, all of their cases ought to be considered. ...” This would obviously mean that though the Petitioner does not possesses the minimum period of 10 years of qualifying service for grant of pension, there is nothing precluding him from seeking relaxation of the requirements of the Rules in the prescribed manner before the concerned authority, who would have to examine whether the conditions for the same have been fulfilled in this case.
6. When it was pointed out that the Petitioner would have to make an application for exemption under Rule 82 of the Rules and establish the conditions including hardship if he want such exemption, Learned Counsel for the Petitioner submits that he is not pressing for any direction to dispose the representation now made and instead the Petitioner would make a fresh representation under Rule 82 of the Rules to the concerned authority raising all contentions and he has made an endorsement to that effect in the court record. https://www.mhc.tn.gov.in/judis 13/17 W.P. No. 16683 of 2019
7. In such circumstances, the following order is passed:-
(i) the Petitioner may make necessary representation along with supporting documents to the concerned authority under Rule 82 of the Tamil Nadu Pension Rules, 1978, for relaxing the relevant rules so as to entitle him for grant of pension;
(ii) if such representation is made, the concerned authority shall immediately consider the claim made by the Petitioner for relaxation of the relevant rules for grant of pension taking into account any undue hardship that may be suffered by him in terms of Rule 82 of the Rules;
(iii) if it is found that the Petitioner has not produced any details or supporting documents satisfying the eligibility criteria for the benefits claimed, the deficiencies in that regard shall be informed in writing to him requiring the same to be furnished within a time frame of not less than 15 working days;
(iv) in the event of the concerned authority not being satisfied with the compliance of the requirements thereafter, an enquiry shall be conducted affording full opportunity of personal hearing to the Petitioner to explain his position in that regard and the concerned authority shall pass reasoned orders dealing with each of the contentions raised on merits and https://www.mhc.tn.gov.in/judis 14/17 W.P. No. 16683 of 2019 in accordance with law and communicate the decision taken to the Petitioner under written acknowledgment;
(v) if the Petitioner is found entitled to the relaxation of the relevant rules for grant of pension as claimed, it shall be ensured that the eligible amount of arrears of pension is paid within three months from the date of passing of that order, apart from monthly pension for future months on the due dates; and In the result, the Writ Petition is disposed on the aforesaid terms. No costs.
17.03.2022 vjt Index: Yes/No Note: Issue order copy by 23.05.2022.
To
1. The Principal Secretary to Government of Tamil Nadu, Revenue Department, Secretariat, Chennai – 600 009.
2. The Principal Secretary cum Commissioner of Revenue Administration, Chepauk, Chennai – 600 005.
https://www.mhc.tn.gov.in/judis 15/17 W.P. No. 16683 of 2019
3. The District Collector, Namakkal District, Namakkal.
4. The Tahsildar, Namakkal Taluk, Namakkal.
5. The Accountant General (A & E), No. 367, Anna Salai, Teynampet, Chennai – 600 018.
https://www.mhc.tn.gov.in/judis 16/17 W.P. No. 16683 of 2019 P.D. AUDIKESAVALU, J.
vjt W.P. No. 16683 of 2019 17.03.2022 https://www.mhc.tn.gov.in/judis 17/17