Madras High Court
C-42 vs The State Of Tamil Nadu on 14 June, 2019
Author: C.Saravanan
Bench: M.M.Sundresh, C.Saravanan
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 14.03.2019
PRONOUNCED ON : 14.06.2019
CORAM :
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
AND
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.P.Nos.14983, 26230, 35766, 39035 & 39036 of 2016
and W.M.P.Nos.13075 to 130766 and 12489 of 2016
and W.M.P.Nos.22490 to 22492 of 2016 and
W.M.P.Nos.33442,33443 and 33457 of 2016
and W.M.P.Nos.33444 to 33446 of 2 016
and W.M.P.Nos.22490 to 22492 of 2016
and W.M.P.Nos.30721 to 30722 of 2016
Sub.Application Nos.366 & 591 of 2016 and
Sub.Application Nos.254 and 255 of 2017
W.P.No.14983 of 2016
Tamil Nadu State Transport Corporations
Retired Administrative and Technical
Supervisory Staff Welfare Association
(Reg.No.19/2011 Salem West)
C-42, ATC Nagar, Alagapuram Pudur,
Salem 636 016 represented by its
President K.Kalyanasundaram. .. Petitioner
.vs.
1. The State of Tamil Nadu
Represented by its
Additional Chief Secretary,
Transport Department,
Fort St.George, Chennai 600 009.
2. The State of Tamil Nadu
Represented by its Secretary,
Finance Department,
http://www.judis.nic.in Fort St.Georte, Chennai 600 009.
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3. The Principal Accountant General (A&E), Tamil Nadu,
Teynampet, Chennai-18.
4.The Administrator,
TNSTC Employees Pension Fund Trust,
Pallavaram House, Anna Salai,
Chennai 600 002.
5.The Managing Director,
State Express Transport Corporation,
Pallavan House, Anna Salai,
Chennai 600 002.
6.The Managing Director,
TNSTC (Salem) Ltd.,
No.12, Ramakrishna Salai,
Salem.
7.The Managing Director,
TNSTC (Villupuram)Ltd., Villupuram.
8.The Managing Director,
TNSTC (Coimbatore) Ltd.,
No.37, Mettupalayam Road,
Coimbatore-43.
9. The Managing Director,
TNSTC (Trichy) Ltd.,
Trichy.
10.The Managing Director,
TNSTC (Madurai) Ltd.,
Bye-pass Road, Madurai-20.
11. The Managing Director,
TNSTC (Tirunelveli) Ltd.,
Vanarapettai, Tirunelveli. .. Respondents
Prayer:Writ petition filed under Article 226 of the Constitution of India praying
for issuance of a writ of Certiorarified Mandamus calling for the connected
and relevant records relating to G.O.(M.S.)No.96, Transport (RW1) Department
dated 31.07.2015 passed by the 1st respondent and G.O.(Ms)No.33, Transport
(RW1) Department dated 04.03.2016 passed by the 1st respondent and the
http://www.judis.nic.inpension payment order dated 17.12.2015 issued by the 3rd respondent along
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with certificate issued by the 5th respondent and work sheet and quash the
portion of Clause 12 of G.O.(Ms)No.98 "..... The pension arrears from the date
of retirement of erstwhile Tamil Nadu State Transport Department employees
upto the date of issue of this Government order (i.e.31.07.2015) which was
already paid by the Tamil Nadu State Transport Corporation Employees Pension
Fund Trust to the erstwhile Tamil Nadu State Transport Corporation Employees
Pension Fund Trust shall be examined separately after the disposal of the
Review petition by the Hon'ble Supreme Court of India filed in Diary No.1756 of
2015" and also quash the portion of Clause 13 of G.O.(Ms)No.96 "Further, the
payment of pension for the services rendered in State Transport Undertaking
from the Tamil Nadu State Transport Corporation Employees Pension (Fund)
Trust shall be revised to the absorbee employees/pensioners as per Tamil Nadu
State Transport Corporation Employees Pension Fund Rules, with effect from
01.08.2015 and also quash the portion of pension payment order dated
17.12.2015 "the arrears of pension and DA admissible from time to time from
01.07.2004 to 31.07.2015 may be withheld vide Para 12 of the G.O. cited under
reference and not admissible of Family Pension", and also quash the Clause 5
of G.O.(Ms)No.33 and direct the 1st respondent to sanction and pay the
members of the petitioner Association Government pensionary benefits for
their Government service rendered in the erstwhile Tamil Nadu State
Transport Department taking into account the cut off date fixed as 01.04.1982
and pay their arrears of pension from 01.01.1988 as per the directions of the
Hon'ble Supreme Court of India in its Judgment dated 29.10.2003 in Civil
Appeal Nos.1444-1445 with 1446-1452 of 1998 and C.A.No.8507 of 2003 and
also direct the respondents 5 to 11 to pay the full Corporation Pension to the
members of the Petitioner Association without any adjustments or deduction.
W.P.No.26230 of 2016
1.G.Krishnamurthy
2.M.K.Varadharajan
3.A.Kumarasamy
4.T.Lakshmipathy
5.K.Vadivel
6.V.Jambulingam
7.E.Shanmugam
8.V.Natarajan
9.S.Velayuthan
10.A.B.Sathiyamoorthy
11.E.Parandhaman
12.N.Govindasamy
13.B.Rajamanickam
14.T.Parthiban
http://www.judis.nic.in15.M.Thangavel
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16.K.Govindarajulu
17.S.K.Munusamy
18.N.S.Kader Mohideen
19.C.A.Vedhagiri
20.K.P.Krishnan
21.J.Kaja Nizamudeen
22.P.Wellesly
23.C.R.Venkatakrishnan
24.S.Boomilingam
25.P.Venkatasamy
26.M.Narasimha Reddy
27.K.Selvaraj
28.R.Elumalai
29.K.Bakthavatchalam
30.R.Selvaraj
31.A.Pazhani
32.V.K.Varadhan
33.N.E.Loganathan
34.S.Kannan
35.R.Lakshmanan
36.A.Annamalai
37.G.Valmiki
38.P.Elangovan
39.P.Thukkaram
40.P.N.Ranganathan
41.M.K.Abdul Kader
42.R.Gururajan
43.M.Viswanathan
44.A.Ramasamy
45.T.S.Mohammed Ansar
46.P.Paulraj
47.S.Pazhani
48.S.Ragunathan
49.K.P.Krishnan
50.K.Ramamurthi
51.K.Govindasamy .. Petitioners
1.The State of Tamilnadu
Represented by its
Additional Chief Secretary,
Transport Department,
Fort St.George, Chennai 600 009.
http://www.judis.nic.in
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2.The State of Tamilnadu
Represented by its Secretary
Finance Department,
Fort St.George, Chennai 600 009.
3.The Principal Accountant General (A&E), Tamilnadu
Teynampet, Chennai 18.
4.The Administrator
TNSTC Employees Pension Fund Trust,
Pallavan House, Anna Salai,
Chennai 600 002.
5.The Managing Director,
State Express Transport Corporation TN Ltd.,
Pallavan House, Anna Salai,
Chennai 600 002. .. Respondents
Prayer : Writ petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of Certiorarified Mandamus calling for the
connected and relevant records relating to G.O.(M.S.)No.96, Transport (RW1)
Department dated 31.07.2015 passed by the 1st respondent and
G.O.(Ms)No.33, Transport (RW1) Department dated 04.03.2016 passed by the
1st respondent and the pension payment order dated 18.03.2016 and
06.05.2016 respectively and quash the portion of Clause 12 of G.O.Ms.No.96
"..... The pension arrears from the date of retirement of erstwhile Tamil Nadu
State Transport Department employees upto the date of issue of this
Government order (i.e.31.07.2015) which was already paid by the Tamil Nadu
State Transport Corporation Employees Pension Fund Trust to the erstwhile
Tamil Nadu State Transport Corporation Employees Pension Fund Trust shall be
examined separately after the disposal of the Review petition by the Hon'ble
Supreme Court of India filed in Diary No.1756 of 2015" and also quash the
portion of Clause 13 of G.O.(Ms)No.96 "Further, the payment of pension for
the services rendered in State Transport Undertaking from the Tamil Nadu
State Transport Corporation Employees Pension (Fund) Trust shall be revised to
the absorbee employees/pensioners as per Tamil Nadu State Transport
Corporation Employees Pension Fund Rules, with effect from 01.08.2015 and
also quash the portion of pension payment order dated 18.03.2016 "the arrears
of pension and DA admissible from time to time from 01.07.2004 to 31.07.2015
may be withheld vide Para 12 of the G.O. cited under reference and not
admissible of Family Pension", and portion of 51th petitioner's Pension
Payment Order dated 06.05.2016 ".......... "the arrears of pension and DA
http://www.judis.nic.inadmissible from time to time from 01.05.2000 to 31.07.2015 may be withheld
6
vide Para 12 of the G.O. cited under reference and not admissible of Family
Pension" along with the certificate", and also quash the Clause 5 of
G.O.(Ms)No.33 and direct the 1st respondent to sanction and pay us the
Government pensionary benefits for our Government service rendered in the
erstwhile Tamil Nadu State Transport Corporation taking into account the cut
off date fixed as 01.04.1982 and pay us the arrears of pension from 01.01.1998
as per the directions of the Hon'ble Supreme Court of India in its Judgment
dated 29.10.2003 in Civil Appeal Nos.1444-1445 with 1446-1452 of 1998 and
C.A.No.8507 of 2003 and also direct the respondent No.5 to pay the full
Corporation Pension to the members of the Petitioner Association without any
adjustments or deduction.
W.P.No.39035 of 2016
1.S.Balaji
2.S.Dominique .. Petitioners
vs.
1. The State of Tamil Nadu
Represented by its
Additional Chief Secretary,
Transport Department,
Fort St.George, Chennai 600 009.
2. The State of Tamil Nadu
Represented by its Secretary,
Finance Department,
Fort St.Georte, Chennai 600 009.
3. The Principal Accountant General (A&E), Tamil Nadu,
Teynampet, Chennai-18.
4.The Administrator,
TNSTC Employees Pension Fund Trust,
Pallavaram House, Anna Salai,
Chennai 600 002.
5.The Managing Director,
Metropolitan Transport Corporation (Chennai) Ltd,
Pallavan House, Anna Salai,
http://www.judis.nic.in Chennai 600 002. .. Respondents
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Prayer : Writ petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of Certiorarified Mandamus calling for the
connected and relevant records relating to G.O.(M.S.)No.96, Transport (RW1)
Department dated 04.03.2016 passed by the 1st respondent and quash the
portion of Clause 12 of G.O.(Ms)No.96 "..... The pension arrears from the date
of retirement of erstwhile Tamil Nadu State Transport Department employees
upto the date of issue of this Government order (i.e.31.07.2015) which was
already paid by the Tamil Nadu State Transport Corporation Employees Pension
Fund Trust to the erstwhile Tamil Nadu State Transport Corporation Employees
Pension Fund Trust shall be examined separately after the disposal of the
Review petition by the Hon'ble Supreme Court of India filed in Diary No.1756 of
2015" and also quash the portion of Clause 13 of G.O.(Ms)No.96 "Further, the
payment of pension for the services rendered in State Transport Undertaking
from the Tamil Nadu State Transport Corporation Employees Pension (Fund)
Trust shall be revised to the absorbee employees/pensioners as per Tamil Nadu
State Transport Corporation Employees Pension Fund Rules, with effect from
01.08.2015 and quash "Clause 3 of G.O.(Ms)No.33 ....... payment of interest at
rate of 9% per annum on arrears of pension due to the erstwhile Tamil Nadu
State Transport Department employees those who had retired from service on
or after 01.09.1998 with effect from 27.05.2005(date of issue of G.O.Ms.No.42,
Transport (RW) Department dated 27.05.2005) and also quash Clause 5 of
G.O.(Ms)No.33 and direct the 1st and 2nd respondent to sanction the
Government pensionary benefits for the services of petitioners deceased
father in the Tamil Nadu State Transport Department taking into account the
cut off date fixed as 01.04.1982 and pay us the arrears of pension from
01.01.1998 @ 9% as per the directions of the Hon'ble Supreme Court of India in
its Judgment dated 29.10.2003 in Civil Appeal Nos.1444-1445 with 1446-1452 of
1998 and C.A.No.8507 of 2003.
W.P.No.35036 of 2016
1.C.Paapathi
2.A.A.Soorathraheema
3.R.Malika .. Petitioners
vs.
1. 1. The State of Tamil Nadu
Represented by its
Additional Chief Secretary,
Transport Department,
Fort St.George, Chennai 600 009.
http://www.judis.nic.in
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2. The State of Tamil Nadu
Represented by its Secretary,
Finance Department,
Fort St.Georte, Chennai 600 009.
3. The Principal Accountant General (A&E), Tamil Nadu,
Teynampet, Chennai-18.
4.The Administrator,
TNSTC Employees Pension Fund Trust,
Pallavaram House, Anna Salai,
Chennai 600 002.
5.The Managing Director,
Metropolitan Transport Corporation (Chennai) Ltd,
Pallavan House, Anna Salai,
Chennai 600 002.
6.The Managing Director
Tamil Nadu State Transport Corporation (Villupuram Ltd.)
Villupuram 605 602. .. Respondents
Prayer : Writ petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of Certiorarified Mandamus calling for the
connected and relevant records relating to G.O.(M.S.)No.96, Transport (RW1)
Department dated 31.07.2015 passed by the 1st respondent and
G.O.(Ms)No.33 Transport (RW1) Department dated 04.03.2016 passed by the
1st Respondent and quash the portion of Clause 12 of G.O.(Ms)No.96 ".......
The pension arrears from the date of retirement of erstwhile Tamil Nadu State
Transport Department employees upto the date of issue of this Government
order (i.e.31.07.2015) which was already paid by the Tamil Nadu State
Transport Corporation Employees Pension Fund Trust to the erstwhile Tamil
Nadu State Transport Corporation Employees Pension Fund Trust shall be
examined separately after the disposal of the Review petition by the Hon'ble
Supreme Court of India filed in Diary No.1756 of 2015" and also quash the
portion of Clause 13 of G.O.(Ms)No.96 "Further, the payment of pension for
the services rendered in State Transport Undertaking from the Tamil Nadu
State Transport Corporation Employees Pension (Fund) Trust shall be revised to
the absorbee employees/pensioners as per Tamil Nadu State Transport
Corporation Employees Pension Fund Rules, with effect from 01.08.2015 and
quash the impugned portions of "Clause 3 of G.O.(Ms)No.33 ....... payment of
interest at rate of 9% per annum on arrears of pension due to the erstwhile
Tamil Nadu State Transport Department employees those who had retired from
service on or after 01.09.1998 with effect from 27.05.2005(date of issue of
http://www.judis.nic.inG.O.Ms.No.42, Transport (RW) Department dated 27.05.2005) and also quash
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Clause 5 of G.O.(Ms)No.33 and direct the 1st respondent to sanction the
Government pensionary benefits for Government service rendered in the
erstwhile Tamil Nadu State Transport Department by petitioners' deceased
husbands taking into account the cut off date fixed as 01.04.1982 and pay the
petitioners the arrears of pension from 01.01.1998 @ 9% as per the directions
of the Hon'ble Supreme Court of India in its Judgment dated 29.10.2003 in Civil
Appeal Nos.1444-1445 with 1446-1452 of 1998 and C.A.No.8507 of 2003 and pay
the monthly Family Pension and also direct the respondents 5 and 6 to
continue to pay the petitioners' full Corporation Family Pension without any
adjustments or deduction.
W.P.No.35766 of 2016
N.Masilamani .. Petitioner
vs.
1. The State of Tamil Nadu
Represented by its
Additional Chief Secretary,
Transport Department,
Fort St.George, Chennai 600 009.
2. The State of Tamil Nadu
Represented by its Secretary,
Finance Department,
Fort St.Georte, Chennai 600 009.
3. The Principal Accountant General (A&E), Tamil Nadu,
Teynampet, Chennai-18.
4.The Administrator,
TNSTC Employees Pension Fund Trust,
Pallavaram House, Anna Salai,
Chennai 600 002.
5.The Managing Director,
Pallavan Transport Corporation Ltd.,
Pallavan House, Chennai 600 002. .. Respondents
http://www.judis.nic.in
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1.The Inspector General of Police,
Northern Sector,
Central Reserve Police Force,
R.K.Puram, Sector I, Block-B,
New Delhi.
2.The Commandant,
167, Battalion,
Central Reserve Police Force,
Mantripukhri, Imphal. .. Respondents
Prayer : Writ petition filed under Article 226 of the Constitution of India
praying for issuance of a writ of Certiorarified Mandamus calling for the
connected and relevant records relating to G.O.(M.S.)No.96, Transport (RW1)
Department dated 31.07.2015 passed by the 1st respondent and
G.O.(Ms)No.33 Transport (RW1) Department dated 04.03.2016 passed by the
1st Respondent and quash the portion of Clause 12 of G.O.(Ms)No.96 ".......
The pension arrears from the date of retirement of erstwhile Tamil Nadu State
Transport Department employees upto the date of issue of this Government
order (i.e.31.07.2015) which was already paid by the Tamil Nadu State
Transport Corporation Employees Pension Fund Trust to the erstwhile Tamil
Nadu State Transport Department -employees and which is to be paid to the
Tamil Nadu State Transport Corporation Employees Pension Fund Trust shall be
examined separately after the disposal of the Review petition by the Hon'ble
Supreme Court of India filed in Diary No.1756 of 2015" and also quash the
portion of Clause 13 of G.O.(Ms)No.96 "Further, the payment of pension for
the services rendered in State Transport Undertaking from the Tamil Nadu
State Transport Corporation Employees Pension (Fund) Trust shall be revised to
the absorbee employees/pensioners as per Tamil Nadu State Transport
Corporation Employees Pension Fund Rules, with effect from 01.08.2015 and
quash the Clause 5 of G.O.(Ms)No.33 and direct the 1st respondent to sanction
and pay the petitioners the Government pensionary benefits for Government
service rendered in the erstwhile Tamil Nadu State Transport Department
taking into account the cut off date fixed as 01.04.1982 and pay the petitioner
the arrears of pension from 01.01.1988 @ 9% as per the directions of the
Hon'ble Supreme Court of India in its Judgment dated 29.10.2003 in Civil
Appeal Nos.1444-1445 with 1446-1452 of 1998 and C.A.No.8507 of 2003 and pay
the monthly Family Pension and also direct the respondent No.5 to pay the
full Corporation Family Pension without any adjustments or deduction.
For Petitioners : Mr.V.Ajoy Khose
(In Sub Appl.Nos.366 & 591 of 2015)
http://www.judis.nic.in
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: Mr.D.Sadhasivan
(In Sub Appl.Nos.254 & 255 of 2016
and W.P.Nos.14983, 26230, 35766,
39035 and 39036 of 2016)
Respondents : Mr.P.S.Shivashanmughasundram, Spl.G.P.
(In W.P.Nos.14983, 35766, 39035, 39036
and 26230 of 2016 for R1 and R2
: M/s.T.S.selvarani - R3
(In W.P.Nos.14893, 39035 & 39036/2016)
: Mr.M.Vijay Narayan, AG
Asst.by M/s.Rajeni Ramadoss for- R5 and R6
(In W.P.Nos.14893, 39035 & 39036 of 2016
: No Appearance - R7 to R11.
COMMON ORDER
C.SARAVANAN,J.
By this common order we are disposing the above five writ petitions and the connected miscellaneous petitions.
2. The writ petitions have been filed challenging clauses 12 and 13 of G.O.(Ms) No. 96 dated 31.7.2015 and clauses 5 of G.O(Ms) No.33 dated 4.3.2016 and pension orders dated 6.5.2016 and 18.3.2006 giving effect to G.O.(Ms) No.96 dated 31.7.2015 and G.O(Ms) No.33 dated 4.3.2016 by the writ petitioners.
3. As per clause 12 of the impugned G.O.(Ms) No. 96 dated 31.7.2015, http://www.judis.nic.inpension arrears payable from the date of retirement of the erstwhile Tamil 12 Nadu State Transport Department employees to the date of issue of the said G.O. which was already paid under the provisions of the Tamil Nadu State Transport Corporation Employees’ Pension Fund Trust Rules to the erstwhile Tamil Nadu State Transport Department employees and to be paid out of the Tamil Nadu State transport Corporation Employees Pension Fund Trust was to be examined separately after disposal of the Review Petition filed by the respondent before the Hon’ble Supreme Court in Diary No. 1756 of 2015.
4. As per clause 13 of the impugned G.O.(Ms) No. 96 dated 31.7.2015 the payment of pension and Dearness Allowance as admissible from time to time each of the eligible employees from 1.8.2015 was to be made through the concerned District Treasury/Sup Treasury/Pension Pay Office. Further, payment of pension for the services rendered in the State Transport Undertakings from the Tamil Nadu State Transport Corporation Employees Pension (Fund) Trust was to be revised to the absorbee employee/pensioners as per the aforesaid rules with effect from 1.8.2015.
5. As per para-5 of the impugned G.O(Ms) No. 33 dated 4.3.2016 the Administrator, Tamil Nadu State Transport Corporation Employees Pension Fund Trust Rules was directed to take necessary action to calculate the interest amount of pension at 9% per annum the pension arrears due to the employees of the transport Corporation under the aforesaid rules after http://www.judis.nic.in 13 adjusting the excess amount of Government Pension sanction in the impugned G.O.(Ms) No.96 dated 31.7.2015.
6. Before going further, it may be mentioned that on the date of issue of the 1st mentioned G.O.(Ms) No.96 dated 31.7.2015, the review petition filed vide Diary No.7056 of 2015 before the Supreme Court had already been dismissed vide order dated 22.7.2015 in Review Petition (C) Nod. 2406 to 2408 2015. Thus, there was no necessity for issue of G.O.(Ms) No.96 dated 31.7.2015 for the aforesaid reasons of pendency of the review petition vide Diary No. 7056 of 2015 .
7. The subsequent Government Order vide the impugned G.O(Ms) No. 33 dated 4.3.2016 though was intended to implement the order of the learned single judge of this High Court in W.P.No 5856 of 2006 and few others which was challenged before the Hon’ble Supreme Court it also sought to re-cover the amounts paid in excess pursuant to 1st mentioned impugned G.O.(Ms) No.96 dated 31.7.2015 to the petitioners. To understand the issue, it would be relevant to refer to the facts.
8. The Petitioners are the former employees of the Tamil Nadu State Transport Department who were permanently absorbed with effect from http://www.judis.nic.in 14 14.9.1975 into various State Transport Corporations which came to be created from 1975 onwards. They have since retired.
9. The petitioners were treated as if they have joined service with effect from 1.5.1975 in respect of all State Transport Undertakings except State Express Corporation (Tamil Nadu) Ltd and 15.9.1975 for State Express Corporation (Tamil Nadu) Ltd., with effect from the aforesaid date they ceased to be Government Servants.
10. The Government of Tamil Nadu issued G.O.Ms.No.1028 dated 23.9.1985 wherein it was decided that the terminal benefits of all the erstwhile employees of the Tamil Nadu State Transport Department in various transport Corporation should be settled as per G.O.Ms.No.378 Finance dated 18.4.1975 with procedural modification as set out in G.O.Ms.No.1028 dated 23.9.1985.
11. However, some of the employees who had not completed 10 years of services to get government minimum pension as per the Pension Rules applicable to the Government servants lost their rights. Under these circumstances, various writ petitions were filed in early 1990’s.
12. The issue was agitated and was finally settled by the Hon’ble Supreme Court in T.N. v. M. Ananchu Asari, (2003) 10 SCC 503. The Hon’ble http://www.judis.nic.in 15 Supreme Court held as follows:-
We are of the view that in view of the long lapse of time and in order to avoid further delay and the scope for possible controversies, instead of leaving it to the Government to fix a fresh cut-off date as per the directions of the High Court, in exercise of our powers under Article 142 of the Constitution, we direct that the date 1-4-1982 shall be adopted as the cut- off date in modification of what was prescribed in GO No. 1028 dated 23-9-1985 and GO No. 250 dated 18-11-1996.
13. The Hon’ble Supreme Court further held as follows:-
Hence, the fixation of the cut-off date as 1-4-1982 would, in our view, be appropriate. Taking into account the aforementioned date for the purpose of assessing the requisite length of service, we direct the appellants to take steps to extend the pensionary benefits to the eligible employees. Having regard to the conduct of the respondents in seeking the remedy long after the options were exercised, we consider it just and proper to direct that the respondent employees whoever have retired should get the arrears of pension only from 1-1-1988, which date is fixed with reference to the year of filing the first writ petition, namely, WP No. 7012 of 1988. The fixation of pension and payment of arrears should be done accordingly within a period of four months from today. The appellants are entitled to adjust the monetary benefits which the employees would not have received if they were to receive the pension..
14. Thus, cut off date was fixed as 1.4.1982 for becoming eligible for the pension under the Government Pension Rules to the employees and arrears of pension was directed to be paid from 1.1.1988. The arrears was to be paid within 4 months.
15. Meanwhile, Tamil Nadu State Transport Corporation Employees http://www.judis.nic.inPension Fund Trust Rules was created with effect from 1.9.1998. Part IV of the 16 aforesaid Trust Rules contemplates “Pensionary Benefits” to employees of the respondent-Corporation.
16.Clause 13 (a) deals with “New Entrant” which Clause 13 (b) deals with “existing members” as on 1.9. 19 98. As per the Clause 13 (b) the aggregate of actual service as indicated in para 2 (p) shall be treated as eligible service. Under clause 14, a method has been prescribed for “Determination of Pensionable Service”. Clause 13 and 14 read as follows:-
13. Determination of Eligible Service :-
The eligible service shall be determined as follows:-
a) In the case of a “New Entrant”entering into service on or after 1.9.1998, the “actual service”shall be treated as eligible service. The total actual service shall be rounded off to the nearest year. The fraction of service for six months or more shall be treated as one year and the service less than six months shall be ignored.
b) In the case of the “existing member “ as on 01.09.1998, the aggregate of actual service as indicated para 2 (p) shall be treated as eligible service.
c) If there is any non-contributory period during the service, it shall not be counted for arriving the actual service.
14. Determination of Pensionable Service :
a) The pensionable service of the member shall be determined with reference to the contributions received or http://www.judis.nic.in are receivable on his behalf in the Employees’ Pension Fund, 17 subject to the conditions stated in para 13. The pensionable service shall be restricted to 30 years for the purpose of calculation of pensionary benefits.
b) If a member is eligible for pension under any other scheme, pension payable under the scheme shall be calculated as follows:
Gross pension shall be calculated notionally including the period of pensionable service rendered with the previous employer. Total eligible service shall be restricted to 30 years. The difference between the gross pension and the amount already received by the individual for the service rendered with the previous employer or the pension eligible under the scheme which ever is less shall be the eligible pension under the scheme.
d) Provided that the provisions of Rule 14(b) shall not apply in the cases of members who are ex-servicemen and drawing pension for the military service” subject to the conditions that such option as provided in the Rule 16 of Tamil Nadu Pension Rules be obtained from these pensioners.” Viz., To opt either;
a) To continue to draw the military pension (or) retain gratuity received on discharge from military service, in which case his former military service shall not count as qualifying service; or
b) to cease to draw his pension and refund
i) the pension already drawn and
ii) the value received for the commutation of part of military pension and
iii) the amount of DCRG including service gratuity if any and count the previous military service as qualifying service as provided in the Rule 16 of Tamil Nadu Pension rule.
http://www.judis.nic.in (Rule 14-c inserted vide G.O.No.103 Transport dated 18 26.08.2003)
17. As per clause (b), if a member is eligible for pension under any other scheme, pension payable under the scheme shall be calculated as above.
18. Gross pension was to be calculated notionally including the period of pensionable services rendered with the previous employer. Total eligible service was to be restricted to 30 years. The difference between the gross pension and the amount already received by the individual for the services rendered with the previous employer or the pension eligible under the scheme whichever was less was to be the eligible pension under the scheme. The only exception is provided in clause (c). None of the petitioners fall under any of the above categories.
19. By G.O MS.No.42 dated 27.5.2005, the State Government decided to implement the decision of the Hon’ble Supreme Court in T.N. v. M. Ananchu Asari, (2003) 10 SCC 503. Accordingly the Managing Directors of various State Transport Corporations were asked to finalise necessary revised terminal benefits taking into account of the directions of the Hon’ble Supreme Court fixing the cut-off date as 1.4.1982 in respect of all the employees who were absorbed into the Corporation but had retired prior to 1.9.98 from various the http://www.judis.nic.inState Transport Corporation. 19
20. The above G.O.Ms.No.42 dated 27.5.2005 particularly Clause 5(b) of the G.O was challenged before this court in a batch of writ petitions which came to be disposed by a common order of the learned single judge on 27.9.2006. Clause 5(b) of G.O.Ms.No.42 dated 27.5.2005 read as under:
c) As per the clause 2(p) (ii) & clause 14(b) of the Tamil Nadu State Transport Corporation Employees Pension Fund Rules issued in G.O.fourth read above and with reference to Rule 7 of the Tamil Nadu Pension Rules the erstwhile Tamil Nadu State Transport Department employees who were absorbed in Tamil Nadu State Transport Corporation and retired after 01.09.1998 be paid pension as per the Pension Scheme of the State Transport Corporations brought into force by the settlement under Section 12(3) of the Industrial Disputes Act, 1947 and they are not eligible for the second pension as per the G.O.third read above.
21. Clause 14(b) of the Tamil nadu State Transport Pension Rules which was effective from 1.9.1998. Though the Clause 5(b) of G.O.Ms.No.42 dated 27.5.2005 though read differently, cumulative effect was the same. Under the former, the difference between the gross pension and the amount already received by the individual for the service rendered with the previous employer or the pension eligible under the scheme which ever is less shall be the eligible pension under the scheme, while in the latter it was clarified that in view of the settlement under Section 12(3) of the Industrial Disputes Act, 1947, the employees were held not eligible for second pension.
21. The learned single judge after detailed analysis held clause 5 (b) of the above G.O.Ms.No.42 dated 27.5.2005 as unconstitutional and directed the respondents to pay pension to all the employees of the State Transport Corporation retired after 1.9.1998 for the services rendered in the Tamil Nadu http://www.judis.nic.in 20 state transport Department as per G.O.Ms.No.378 dated 18.4.1975 read with G.O.Ms.No 1028 dated 23.9.19 95 as held by the Honourable Supreme Court in Government of Tamil Nadu versus Ananchanu and Ansari and others (2003) 10 SCC 503.
22. The learned single judge had also ordered payment of interest at 9% per annum and the arrears which was directed to be paid within 4 months from the date of receipt of the order. There has been delay in payment of arrears to the some of the petitioners.
23. It may be useful to refer to paragraphs 52, 56 and 58 from the judgment learned single judge which reads as under:
52. The said paragraph 5(b) of the impugned G.O. proceeds on the assumption that the calculation of pension as per rule 14(b) of the Tamil Nadu State Transport Corporation Employees Pension Fund Rules, contemplate payment of second pension as per G.O.Ms.No.1028 dated 23.09.1985. As I have narrated above, this aspect of the impugned G.O. is a total misnomer and without appreciation of either the provisions of 12(3) Settlement or clause 14(b) of the Tamil Nadu State Transport Corporation Employees Pension Fund rules itself. As far as the rule 7 of the Tamil Nadu Pension Rules is concerned, there is absolutely no difficulty in coming to a conclusion that in respect of the same service rendered in the same establishment there cannot be two pension, but in the present case as I have illustrated above and also a reading of clause 14(b) of the Tamil Nadu State Transport Corporation Employees Pension Rules clearly contemplate that only for the purpose of arriving at a gross pension the total service rendered in the Tamil Nadu State Transport Department as well as the Transport Corporation were taken together and there after the amount of pension eligible for the service rendered in the Tamil Nadu State Transport Department namely the http://www.judis.nic.in Government Department is deducted and the balance amount is 21 arrived at. That is also in consonants with the provisions of the memorandum of settlement entered under section 12(3) of the Industrial Disputes Act, the relevant provision of which namely clause 18 and 19 of the said agreement I am reproducing again for the risk of repetition but for better appreciation of the facts:
"18. A new Pension Scheme shall be framed for the Employees of Transport Corporations and the draft scheme will be sent to the Regional Provident Fund Commissioner for getting exemption and upon getting exemption, the employees recruited after 01.09.1998 shall come under the new pension scheme and as per the Employees Provident Fund Act, the employer#s contribution of these employees will be remitted to the Pension Fund.
19. However the employees who are on the rolls of the State Transport Undertakings as on 31.08.1998 shall have the option of joining the new pension scheme or continue to be a member in the existing Employees Contributory Provident Fund Scheme. This exercise of giving option shall be completed within a period of 3 months from the date of signing this settlement subject to getting the exemption from the Regional Provident Fund Commissioner.
Any option exercised for this purpose shall be final."
53. In addition to that even a working sheet produced by learned Advocate General in respect of one employee R.Shanmugam also makes it clear that there is absolutely no ambiguity. The working sheet which contains as follows:
"Working sheet showing pension payment as per Rule 14(b) in respect of TNSTD employee Name :R.Shanmugam Designation : SG.Asst,A13722 Date of Birth : 01.07.1947 Date of Appointment : 28.09.1965 Date of Exit : 30.06.2000 Date of absorption : 01.05.1975 in Corporation Total Qualifying Service Total Qualifying Service in the including TNSTD service Corporation only (Under the Scheme) http://www.judis.nic.in Yyyy-mm-dd yyyy-mm-dd 22 Total Qualifying Service Total Qualifying Service in the including TNSTD service Corporation only (Under the Scheme) 2000.06.30 2000.06.30 1965.09.28 1975.05.01 34.09.02 25.01.29 LLP 0. 0. 0 LLP 0. 0.12 34.09.02 25.01.17 Net Qualifying Service:35 years Net Qualifying Service: 25 years Pay as on (06/2000):Rs.6220/- Pay as on (06/2000):Rs.6220/-
Full Pension: Full Pension:
6220 X 30 6220 X 25
2 X 30 2 X 39
=Rs.3310
=Rs.2592(B)
Less GO 1028 Pension (-)
=Rs.1275
= Rs.1835 (A)
54. The working sheet which contains the gross pension taking into consideration service rendered in both Government Department as well as Transport Corporation which comes to 35 years of service wherein the maximum period of 30 years is taken into consideration and after deducting the pension eligible under G.O.Ms.No.1028 namely Rs.1275/-, the balance amount arrived at Rs.1835/-, which is in accordance with clause 14(b) of the Tamil Nade State Transport Employees Pension Fund Rules.
55. On the other hand, in respect of the same employee service rendered by him in the Transport Corporation alone is taken as 25 years and for that purpose the pension to which is eligible is arrived at Rs.2,592/-. By applying the impugned G.O. especially clause 5(b), the Government's contention is that the said employee will be eligible either Rs.1,835/- as per rule 14(b) or Rs.2,592/- that is the pension exclusively for the service rendered in the Corporation whichever is less namely Rs.1,835/-. This is a total misconception as I have stated earlier. The reason http://www.judis.nic.in being that by calculating 35 years of service both including in 23 the Government Department as well as the Transport Corporation, the pension received in the Tamil Nadu State Transport Department as per the G.O.Ms.No.1028 namely Rs.1,275/- is deducted that as per clause 14(b) of the scheme. The remaining amount of Rs.1,835/- should be taken as the pension amount due for the Corporation Service alone. On the other hand, by taking strictly in the Corporation Service alone the Employee is entitled for the pension of Rs.2,592/-. That amount of Rs.2,592/- does not include the period of service rendered by the employee in the Tamil Nadu State Transport Department. Therefore, by paying the amount of Rs.1,275/- which is the pension to which he is eligible for the service rendered in the Government Department before his absorption into the Transport Corporations along with the pension amount of Rs.2,592/- namely the pension accrued to him for the service rendered exclusively in the Transport Corporations, one can never come to a conclusion that this would amount to the payment of double pension and therefore hit by rule 7 of the Tamil Nadu Pension Rules.
56. It is not open to the respondents to contend as if the impugned G.O. should be taken as a policy of the Government, on the face of it I do not see that it is a policy since admittedly the impugned G.O. itself is a culmination of the agreement entered under 12(3) of the Industrial Disputes Act. Therefore, in any event as I have narrated that there is absolutely no reason to misinterpret the terms of clause 14(b) of the Tamil Nadu State Transport Corporation Employees Pension Rules and G.O.Ms.No.1028 dated 23.09.1985 as if there is conflict along with rule 7 of the Tamil Nadu Pension Rules, since it contemplates the double pension. The assumption is unfounded. In any event even assuming that it is a policy, it is well settled that if a policy is perverse it is not as if the concept of judicial review should not be extended.
24. The method for determination and calculation of the pension as per the above decision in para-52 has not been challenged by the employees. It was held that the gross amount of pension payable will be net of the pension under the aforesaid Trust Rules less the amount calculated under the Government Pension Rules for services rendered in the Tamil Nadu State http://www.judis.nic.in 24 Transport Department as well as the Transport Corporation is deducted and the balance amount is arrived at. The court has further held that this is consonance with the provisions of the memorandum of settlement entered under Section 12 (3) of the Industrial Dispute Act.
25. The above order dated 27.9.2006 passed by the learned Single Judge in a batch of writ petitions were challenged before the Division Bench of this Court in W.A.Nos. 111-113 of 2007 by the respondents herein.
26. By an order dated 9.1.2008, the Hon’ble Division Bench of this court dismissed the writ appeals and upheld order dated 27.9.2006 of the Learned Single Judge . The Hon’ble Division Bench held that the State Government has no jurisdiction to alter the settlement arrived under Section 12(3) of the Act and the Government was bound by the settlement and held that the learned single judge had rightly reversed clause 5 (b) of G.O.Ms. 42 dated 27.5.2005.
While coming to the above conclusion, the Division Bench held that so far as eligibility of pension under the Tamil Nadu State Transport Corporation Employees’ Pension Rules is concerned, it is another pension, which an employee was earning on completion of requisite period under the Transport Corporation. Such pension rule was binding on all the parties. The Hon’ble Division Bench held that apart from the transport Corporation and its employees, the State Government, being also a party to it, the settlement is http://www.judis.nic.in 25 binding on it. Thus, Rule 14 of the aforesaid Rules has remained intact and between the two calculations which less the amount was payable.
27. The respondents herein filed Civil Appeal Nos.6715 to 6717 of 2010 before the Honble Supreme Court. By an order dated 16.4.2014, the Hon’ble Supreme Court dismissed these appeals filed by the appellant herein.
28. On the same day, the court also vacated the interim stay granted earlier and expressed hope that the pension of the consent employees shall be paid as soon as possible, preferably within 6 months.
29. Meanwhile, Contempt Petition No.13 of 2015 was filed. By an interim order dated 23.1.2015, 1st respondent was directed to be present if the arrears of the amounts were not remitted.
30. Meanwhile, another batch of Contempt Petition Nos.290 to 292 of 2013 also came to be filed but were closed by an order dated 24.02.2015 based on the submission of the Advocate General reasonable time may be fixed without prejudice to the rights of the respondents to review the order passed by the Honble Supreme Court.
http://www.judis.nic.in 26
31. Meanwhile, Review Petitions (C) Nos.2406-2408 of 2015 (D No.1756 of 2015) in Civil Appeal Nos. 6715 to 6717 of 2010 were taken up for hearing by the Hon’ble Supreme Court and by an order dated 22.7.2015 the review petitions were dismissed.
32. Thus, the decision of the learned single judge dated 27.9.2006 stood affirmed.
33. Pending disposal of the above Review Petitions, the 1st respondent issued the 1st mentioned impugned G.O (Ms) No.96 dated 31.7.2015 followed by the 2nd mentioned the impugned G.O (Ms) No.33 dated 4.3.2016, which was issued without prejudice to the rights of the 1st respondent in Review Petitions (C) Nos. 2406 to 2408 of 2015 (D No. 1756 of 2015) in Civil Appeal Nos. 6715 to 6717 of 2010.
34. In view of the impugned G.O(Ms) No.96 dated 31.7.2015, some of the petitioners have not been paid arrears of pension.
35. In G.O (Ms) No. 33 dated 4.3.2016 the Government has sanctioned a sum of ? 48.90 Crore towards payment of interest at the rate of 9% per annum on arrears of pension due to the erstwhile employees of the Tamil Nadu State Transport Department who retired from service on or after 1.9.1998 with http://www.judis.nic.in 27 effect from 27.5.2005 in terms of G.O.(Ms) No. 42 Transport (RW) Department dated 27.5.2005.
36. In term, in para-5 of the G.O (Ms) No.33 dated 4.3.2016, the Administrator, Tamil Nadu State Transport Corporation Employees pension Fund Trust was directed to take necessary action to calculate the interest amount of pension at 9% per annum and the pension arrears due to the erstwhile Tamil Nadu State Transport Corporation Employees after adjusting the excess amount of Government Pension sanctioned in G.O(Ms) No. 96 dated 31.7.2015 .
37. Pending disposal of the present writ petitions, some of the writ petitioners have passed away and are represented by their legal representatives who are entitled to family pension.
38. We have heard, D.Sadhasivan, learned counsel for the writ petitioners; P.S.Shivashanmughasundram, Spl.G.P.for R1 and R2 M/s.T.S.Selvarani for R3, Mr.M.Vijay Narayan, AG Asst.by M/s.Rajeni Ramadoss - R5 and R6.
39. The short point for determination in the present writ petitions and contempt petitions are whether the respondents are entitled to deduct the http://www.judis.nic.in 28 amounts payable under the Tamil Nadu Pension Rules for services rendered as a “government servants” for determining the net pension payable under the Tamil Nadu State Transport Corporation Employees Pension Fund Rules effective from 1.9.1998 to those employees who have retired after the said date.
40. In para-52 of decision of the learned single judge dated 27.9.2006 which has been extracted above, a method for calculation to be adopted has been spelt out while declaring para-5 (b) of G.O(Ms) 42 dated 27.5.2005 as unconstitutional. This view has been accepted by the Division Bench and the Hon’ble Supreme Court. Para-5 (b) had declared that employees will not be entitled for 2nd pension as per G.O.(MS) 1028-Transport dated 23.9.1985. It no longer exist, in view of the order of the learned single Judge which has been affirmed.
41. However, as per clause 14 (b) of the Tamil Nadu State Transport Corporation Employees’ Pension Fund Rules, the difference between the gross pension and the amount already received by the individual for the services rendered with the previous employer or the pension eligible under the scheme whichever is less will be eligible pension under the scheme. Though this aspect has been dealt in para 55 of the Order of the learned Single Judge and http://www.judis.nic.in 29 Division Bench has held that the Tamil Nadu State Transport Corporation Employees’ Pension Fund Rules is binding on all the stake holders.
42. As observed by us earlier, the 1st mentioned impugned G.O.(Ms) No.96 dated 31.7.2015 was issued for the stated reasons that a review petition was pending before the Supreme Court. However, the Hon’ble Supreme Court had already dismissed the Review Petition on 22.7.2015. Therefore, it was unnecessary.
43. Since the Honourable Supreme Court has dismissed the Review Petitions on 22.7.2015, the question still remains whether the state government was entitled to examine, whether there has been any excess payment of arrears of pension to the petitioners ? If so, whether the directions contained in the 2nd mentioned G.O (MS).No.33 dated 4.3.2016 giving liberty to the Administrator, Tamil Nadu State Transport Corporation Employees Pension Fund Trust to recover the excess amount of pension as sanctioned in the 1st mentioned impugned G.O.(Ms) No. 96 dated 31.7.2015 can be sustained or not ?
44. In our view, entire edifice of the relief is based on the decision of the learned single judge in a batch of writ petition passed on 27.9.2006. That http://www.judis.nic.indecision has been affirmed by the Division Bench of this Court by an order 30 dated 9.1.2008 and further affirmed by the Hon’ble Supreme Court by dismissing the civil appeals on 16.4.2014. The scope of Lis was confined to para 5(b) of G.O.M.S.No.42 dated 27.05.2005 which was declared as unconstitutional.
45. However, the method of calculating the pension has been explained by the learned single judge in para-52 order dated 27.9.2006 which is logical There is no further appeal by the employees challenging the same. That being the case, irrespective of the pendency of the appeal before the Honourable Supreme Court and the subsequent Review Petitions before the Honourable Supreme Court, the respondents are independently empowered see whether any excess amount was paid as arrears pursuant to the 1st mentioned impugned G.O.(Ms) No.96 dated 31.7.2015.
46. If, any excess payment has been made, recovery can be justified.
The argument advanced on behalf of the employees that they were entitled to pension both under the Government Pension Rules and the Tamil Nadu State Transport Corporation Employees Pension Fund Trust Rules without deduction would be contrary to 14 (b) of the aforesaid rules.
47. Considering the fact that the government had itself decided to pay the pension by calculating the gross pension after deducting the pension http://www.judis.nic.in 31 under the Government Pension Rules, we are of the view that the pension should not be lowered to a lesser pension as per clause 14 (b) of the Tamil Nadu State Transport Corporation Employees Pension Fund Trust Rules.
48. We therefore direct the respondents to calculate and arrears of pension if any, within a period of four weeks from the date of receipt of copy of this order together with interest already awarded. In case, any excess has been paid, the respondents are directed to issue notice before ordering recovery.
49. We are disposing the above writ petitions with the above observations, as the respondents have taken steps to pay the arrears and have earmarked amounts as per G.O.Ms.No.33 dated 04.03.2016. No cost. Consequently, connected miscellaneous petitions and sub applications are closed.
(M.M.S.,J.) (C.S.N.J.)
14.06.2019
Index : Yes/No
Internet : Yes/No
Speaking : Non Speaking order
kkd
Note : Issue Order copy on 19.06.2019.
http://www.judis.nic.in
32
To
1. The Additional Chief Secretary,
Transport Department,
Fort St.George, Chennai 600 009.
2. The Secretary,
Finance Department,
Fort St.Georte, Chennai 600 009.
3. The Principal Accountant General (A&E), Tamil Nadu, Teynampet, Chennai-18.
4.The Administrator, TNSTC Employees Pension Fund Trust, Pallavaram House, Anna Salai, Chennai 600 002.
5.The Managing Director, State Express Transport Corporation, Pallavan House, Anna Salai, Chennai 600 002.
6.The Managing Director, TNSTC (Salem) Ltd., No.12, Ramakrishna Salai, Salem.
7.The Managing Director, TNSTC (Villupuram)Ltd., Villupuram.
8.The Managing Director, TNSTC (Coimbatore) Ltd., No.37, Mettupalayam Road, Coimbatore-43.
9. The Managing Director, TNSTC (Trichy) Ltd., Trichy.
http://www.judis.nic.in10.The Managing Director, 33 TNSTC (Madurai) Ltd., Bye-pass Road, Madurai-20.
11. The Managing Director, TNSTC (Tirunelveli) Ltd., Vanarapettai, Tirunelveli.
12.The Managing Director, Metropolitan Transport Corporation (Chennai) Ltd, Pallavan House, Anna Salai, Chennai 600 002.
http://www.judis.nic.in 34 M.M.SUNDRESH,J.
and C.SARAVANAN,J kkd Pre-delivery Common Order in W.P.Nos.14983, 26230, 35766, 39035 & 39036 of 2016 and W.M.P.Nos.13075 to 130766 and 12489 of 2016 and W.M.P.Nos.22490 to 22492 of 2016 and W.M.P.Nos.33442,33443 and 33457 of 2016 and W.M.P.Nos.33444 to 33446 of 2016 and W.M.P.Nos.22490 to 22492 of 2016 and W.M.P.Nos.30721 to 30722 of 2016 Sub.Application Nos.366 & 591 of 2016 and Sub.Application Nos.254 and 255 of 2017 14.06.2019 http://www.judis.nic.in