Madras High Court
Bro.Devasia O.J vs The State Of Tamilnadu on 2 July, 2024
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
W.P.No.202 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.07.2024
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P.No.202 of 2022 and
WMP.Nos.234 & 235 of 2022
Bro.Devasia O.J ... Petitioner
Vs.
1.The State of Tamilnadu,
Rep. By its Secretary,
Department of School Education,
Fort St.George,
Chennai 600 009
2.The Principal Accountant General (civil audit),
Tamilnadu and Puducherry,
361, Anna Salai,
Teynampet, Chennai 600 018
3.The Director of School Education,
College Road, Chennai 600 006
4.The Chief Educational Officer,
Salem,
District Collectorate Campus,
Salem 636 001
5.The District Educational Officer,
Salem,
District Collectorate Campus,
Salem 636 001
6.The Correspondent,
Montford Anglo Indian Higher Secondary School,
Yercaud 636 601
Tamilnadu ... Respondents
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W.P.No.202 of 2022
PRAYER: Writ Petition is filed under Article 226 of Constitution of
India praying to issue a Writ of Certiorarified Mandamus calling for the
records relating to the impugned order issued by the Inspector of Anglo
Indian Schools (now designated as DEO) in O.Mu.No.1065/Aa/ 2018
dated 30.05.2018 (as signed), quash the same and further direct the
respondents to release the pension for the petitioner for the pensionable
service he rendered as Secondary Grade Teacher and BT Assistant
Teacher.
For Petitioner : M/s.H.Mary Sowmi Rexi
For Respondents
For R1,3 to 5 : Mrs.S.Mythreye Chandru,
Special Government Pleader
For R2 : Mrs.Hema Murali Krishnan
For R6 : M/s.A.Arul Mary for
M/s.Father Xavier Associates
ORDER
This writ petition has been filed challenging the order dated 30.05.2018 passed by the Inspector of Anglo Indian Schools, now the fifth respondent herein, rejecting the pension proposal sent by the sixth respondent for the petitioner.
2. The petitioner was initially appointed as BT Assistant 2/12 https://www.mhc.tn.gov.in/judis W.P.No.202 of 2022 (History) with effect from 21.06.1983 in a recognized minority institution. Thereafter, the petitioner was transferred to various schools and finally he was transferred to the sixth respondent school on 05.06.1996. Thereafter, the petitioner was posted as BT Assistant on 11.06.1998. He continued till 09.06.2001. On 09.06.2001, he was relieved from service to do religious and social service. Therefore, request was made for pension since he put up more than eighteen years of service. However, the request made by the sixth respondent was rejected by the Inspector of Anglo Indian Schools, now the fifth respondent herein, by an order dated 30.05.2018.
3. The learned counsel for the petitioner would submit that as per Section 43(2) of Tamilnadu Pension Rules, 1978, the qualifying service for pension is only 10 yeas and as such, the petitioner is entitled for pension.
4. Heard, the learned counsel appearing on either side.
5. Admittedly the petitioner was relieved from the post of BT Assistant on 09.06.2001 from the sixth respondent school. Though the 3/12 https://www.mhc.tn.gov.in/judis W.P.No.202 of 2022 petitioner had put in nearly 18 years of service, he is not eligible for pension since the approved period is 20 years. In this regard, the learned counsel for the second respondent relied upon the judgment of the Hon'ble Supreme Court of India in the case of C. Jacob Vs. Director of Geology and Mining and another reported in (2008) 10 SCC 115, wherein it is held as follows:
Pension for service of less than 20 years
17. In this case, taking advantage of the fact the department did not have any records and by not producing the order terminating his service, the petitioner vaguely alleged that he was `terminated' from service in the year 1982, without specifying whether it was by way of dismissal, removal or compulsory retirement or otherwise.
If his termination was by way of dismissal or removal, he would have forfeited his past service as also his pension and gratuity under the pension Rules. Even if it assumed that he was not dismissed or removed, but was retired from service, the question is whether he is entitled to pension on the basis of 14 years of service.
18. The appellant relied on Rule 43(2) of the Tamil Nadu Pension Rules, 1978 (`TNP Rules' for short) to contend that on completion of 10 years of service, a government servant is entitled to pension. Relevant portion 4/12 https://www.mhc.tn.gov.in/judis W.P.No.202 of 2022 of the said rule is extracted below:
"43(2) In the case of a government servant, retiring in accordance with the provisions of these rules after completing qualifying service of not less than 10 years, the amount of pension shall be appropriate amount as set out below namely : ......."(emphasis supplied) As similar contention is frequently raised under the corresponding Rule 49(2)(b) of CCS Pension Rules (`CCSP Rules' for short), we will for convenience refer to the corresponding provisions of CSSP Rules also.
19. Rule 43(2) relied on by the petitioner falls under Chapter VI of TNP Rules (corresponding to Rule 49(2)(b) in chapter VII of CCSP Rules) dealing with `Regulation of amount of pension'. The said rule relates to quantum and lays down how the pension of a retired government servant should be calculated if he is entitled to pension. Entitlement to pension is governed by Chapter V of the said Rules, which enumerates the classes of pension and conditions for entitlement. The enumerated classes of pension are :
Classes of Pension (vide chapter V of the CCSP Rules TNP Rules Pension Rules)
(i) Superannuation pension Rule 35 Rule 32
(ii) Retiring pension Rule 36 Rule 33
(iii) Pension on absorption in or under a corporation, Rule 37 Rule 34 company or body owned/controlled by the 5/12 https://www.mhc.tn.gov.in/judis W.P.No.202 of 2022 Classes of Pension (vide chapter V of the CCSP Rules TNP Rules Pension Rules) State/Central Government Rule 37-A
(iv) Invalid pension Rule 38 Rule 36
(v) Compensation pension payable on discharge Rule 39 Rule 38 owing to abolition of the post
(vi) Compulsory retirement pension Rule 40 Rule 39
(vii) Compassionate allowance to government Rule 41 Rule 40 servants who forfeit their pension on being dismissed or removed
20. A government servant, whose case does not fall under any of the classes of pensions enumerated in Chapter V, is not entitled to pension. If a government servant is not able to make out entitlement to any class of pension specified in chapter V of the pension Rules, there is no question of having recourse to the rules in the chapter dealing with regulation of amount of pension (chapter VI of TNP Rules or chapter VII of CCSP Rules) for determining the quantum of pension.
23. The petitioner contends that if the minimum service for entitlement to retiring pension was 20 years and not 10 years, Rule 43(2) would not have stated "qualifying service of not less than 10 years". He contended that as Rule 43(2) of the TNP Rules (Rule 49(2)(b) of CCSP Rules) refers to "not less than 10 years service", any government servant who has put in service of 10 years or more is entitled to retiring pension. The 6/12 https://www.mhc.tn.gov.in/judis W.P.No.202 of 2022 said contention is misconceived. As stated earlier, the said rule does not relate to `entitlement' of pension nor does it prescribe the conditions for eligibility, but only provides how the amount of pension should be calculated in cases where the retiring Government servant is entitled to pension under the chapter V of the pension rules. The said Rule regulates the `amount' of pension not only in case of retiring pension, but in case of all classes of pension.
24.Under Chapter V, in certain situations, a Government servant may be eligible for pension even where the service is less than ten years. Rules 32, 36, and 38 of TNP Rules (Rules 35, 38 and 39 of CCSP Rules) do not prescribe any minimum service for being entitled to pension, where the cessation of service is on account of superannuation, or on account of bodily or mental infirmity or on account of abolition of his post. When Rule 43(2) of TNP Rules (Rule 49(2)(2) of CCSP Rules) refers to payment of pension to a person who has a qualifying service of not less than 10 years, it does not mean that the minimum period of service prescribed for retirement pension is reduced to 10 years or that government servants who are dismissed/ removed/ compulsorily retired by way of punishment, or those who voluntarily retire before reaching the age of 7/12 https://www.mhc.tn.gov.in/judis W.P.No.202 of 2022 superannuation with less than 20 years of qualifying service, become entitled to pension. Rule 43(2) of TNP Rules (Rule 49(2)(b) of CCSP Rules), as noticed earlier, comes into play only when the Government servant is entitled to any of the classes of pension enumerated under Chapter V of the Pension Rules. Therefore, when Rule 43(2) of TNP Rules (or Rule 49(2)(b) of CCSP Rule) dealing with the quantum of pension refers to a government servant retiring in accordance with the said rules after completing qualifying service of not less than 10 years, it does not mean that pension is payable to persons who have not completed the required minimum number of years (20 years) of service or to persons who have forfeited their service on dismissal/removal from service. Therefore, the appellant is not entitled to pension.
6. Thus it is clear that Rule 43(2) refers to payment of pension to a person who has a qualifying service of not less than 10 years. It does not mean that the minimum period of service prescribed for retirement pension is reduced to 10 years or that Government servants who are dismissed/ removed/ compulsorily retired by way of punishment, or those who voluntarily retire before reaching the age of superannuation with less 8/12 https://www.mhc.tn.gov.in/judis W.P.No.202 of 2022 than 20 years of qualifying service, become entitled to pension.
7. Admittedly the petitioner was relieved from duty and he did not complete 20 years of qualifying service for getting pension.
Therefore, the petitioner is not entitled for pension as per Rule 43 of Tamilnadu Pension Rules.
8. In view of the above, this Court finds no infirmity or illegality in the impugned order. However, the petitioner is entitled for other retirement benefits. If the petitioner was not settled with other retirement benefits, the sixth respondent is directed to send fresh proposal claiming retirement benefits, to the fifth respondent and on receipt of the same, the fifth respondent is directed to consider the same in accordance with law.
9. With the above direction, this writ petition is dismissed.
Consequently, connected miscellaneous petitions are closed. There shall be no order as to costs.
02.07.2024
Neutral citation: Yes/No (2/2)
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W.P.No.202 of 2022
Index: Yes/No
Speaking/Non-speaking order
lok
To
1.Secretary,
The State of Tamilnadu,
Department of School Education,
Fort St.George,
Chennai 600 009
2.The Principal Accountant General (civil audit), 10/12 https://www.mhc.tn.gov.in/judis W.P.No.202 of 2022 Tamilnadu and Puducherry, 361, Anna Salai, Teynampet, Chennai 600 018
3.The Director of School Education, College Road, Chennai 600 006
4.The Chief Educational Officer, Salem, District Collectorate Campus, Salem 636 001
5.The District Educational Officer, Salem, District Collectorate Campus, Salem 636 001
6.The Correspondent, Montford Anglo Indian Higher Secondary School, Yercaud 636 601 Tamilnadu G.K.ILANTHIRAIYAN, J.
lok 11/12 https://www.mhc.tn.gov.in/judis W.P.No.202 of 2022 W.P.No.202 of 2022 02.07.2024 (2/2) 12/12 https://www.mhc.tn.gov.in/judis