Madras High Court
K.Muthukannan vs The Government Of Tamil Nadu on 5 October, 2010
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/10/2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD).No.12515 of 2010 K.Muthukannan .. Petitioner Vs. 1.The Government of Tamil Nadu Rep. by its Secretary, Department of Higher Education, Fort St. George, Chennai. 2.The Director of Collegiate Education, College Road, Nungambakkam, Chennai. 3.The Joint Director of Collegiate Education, Madurai Region, Madurai. 4.Pasumpon Muthuramalinga Thevar College, Rep.by its Secretary, Usilampatti, Madurai District. .. Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of Certiorarified Mandamus calling for the records relating to the order made in letter No.1266/E2/2010-5 Higher Education (E2) Department, dated 21.09.2010 issued by the first respondent and quash the same and consequently direct the respondents to revise the petitioner's pay as on 01.10.2006 with all monetary benefits and further revise the petitioner's pension. !For Petitioners...Mr.D.Sadiq Raja ^For Respondents...Mr.R.Janakiramulu Special Government Pleader :ORDER
The petitioner has come forward to file the present writ petition seeking to challenge the order, dated 21.09.2010, issued by the first respondent, namely the Secretary to Higher Education Department and for a direction to the second Respondent to revise the petitioner's pay as on 01.01.2006 with all monetary benefits on account of such wage revision.
2. The petitioner had worked as a lecturer in the fourth Respondent college. The fourth respondent college is a "private college" and it is also an aided non-minority college. The petitioner got superannuated as a Selection Grade Lecturer in Mathematics on 31.05.2006. After retirement, the petitioner was paid the terminal benefits and the petitioner is at present 63 years old. More than 5 years have lapsed since the date of his retirement.
3. The grievance of the petitioner was that during his re-employment period the college and university teachers scale of pay were revised and they were given the benefits of revised scale of pay with effect from 01.01.2006. Since the said wage revision had taken place during his re-employment period, he should also have the benefit of such wage revision. Therefore, the petitioner gave a representation dated 31.05.2006. Since the petitioner did not get any favourable reply, he filed a writ petition before this Court being W.P.No.14008 of 2009 seeking for a direction to the respondent to consider his representation.
4. This Court by an order, dated 23.12.2009, disposed of the writ petition with a direction to the respondents to consider the petitioner's representation in the light of the judgment of the Hon'ble Supreme Court in STATE OF KERALA v. NEELAKANDA NAIR reported in AIR 2005 (S.C.) 3066, within a time frame. Based upon the said direction, the first respondent by the impugned order, dated 21.09.2010, rejected the case of the petitioner.
5. In the impugned order it was stated that the petitioner's actual date of retirement was 30.06.2005. Under the scheme of re-employment, he was re- employed from 01.07.2005 to 31.05.2006. Such re-employment is granted on the basis of a bond exercised by a teacher and after perusing a medical certificate on physical fitness and also on certain conditions. Since re-employment operates from the date of his retirement, his salary will be paid on the last pay drawn and he is eligible for all the pensionary benefits. Instead of paying pension, the teacher will be paid salary after deducting the pension, the balance of salary will be paid. Therefore, he will be eligible for only a revised pension, but not the refixation of salary as if he was in service on the day of the pay revision, i.e. 01.01.2006. Such a re-fixation of salary would not apply to teachers who were working on the re-employment terms.
6. The learned counsel also stated that the judgment reported in AIR 2005(SC) 3066 (STATE OF KERALA AND ORS V. P.V.NEELAKANDAN NAIR AND ORS) would apply to the case of the petitioner. The petitioner has been receiving his pension from 30.06.2005 and he had paid salary during the reemployment period on the basis of last pay drawn less pension. Mr.D.Sadiq Raja, placed reliance upon the above said judgment of the Hon'ble Supreme Court and reiterated the same contentions.
7. A perusal of the judgment reported in AIR 2005(SC) 3066 (cited supra) clearly shows in that case, the Hon'ble Supreme Court was interpreting Rule 60(C) (Part I) of the Kerala State Service Rules. In that case the Rule itself had prescribed no increment or promotion during the re-employment period will be paid. But it did not refer to benefit of wage fixation taking place during the period. Hence it was held the teacher therein was eligible for a wage revision which happened during his reemployment period. In those rules, it is not called as reemployment. The age of retirement was fixed 55 in that service and if any teacher's retirement falls during the middle of the month, the same will stand postponed to the last day of the month in which the academic year comes to an end. The statutory rule had only denied the benefit of the increment or promotion during the extended period, but that cannot be read as continuity of service for revision of wages.
8. It is also necessary to refer the passage found in the operative portion of the order which reads as follows;
"civil servant retires under the applicable rules in the afternoon of the Last day of the month in which he attains the age of 55 years. But in the specifically prescribed cases, the date of retirement is postponed "till the last day of month in which the academic year ends" so that the education of the students is not disturbed during the academic year. The legislature has denied the benefit of increment and promotion during the extended period. There is no scope for reading into the provision the benefits of pay revision. "Increment"
has a definite concept in service laws. It is conceptually different from revision of pay scale. "Increment" is an increase or addition on a fixed scale; it is a regular increase in salary on such a scale. As noted by this Court in State Bank of India v. The Presiding Officer, Central Government Labour Court, Dhanbad and Anr., (1972) 3 SCC 595, under the Labour and Industrial Laws, an "increment" is in the same scale. A promotion involves going to a higher grade. The pay of an employee is generally fixed with reference to a pay scale. On the other hand, in the case of revision, the pay scale is revised which may incidentally result into increment. Rule 60(c) does not refer to pay revisions which is conceptually different from annual increments within the prescribed pay scale. Therefore, entitlement of the concerned teachers for the benefits of pay revision cannot be doubted. The view taken by the High Court does not suffer from any infirmity to warrant interference."
9. It is not clear as to how the said judgment can be of any assistance to the petitioner. In more or less in similar circumstance, when an employee who got retired on 30.06.1986, claimed the revision of salary which was given on 01.07.1986, the Central Administrative Tribunal, Bangalore Bench granted relief stating that if a person gets retired during the day, the day will come to an end during midnight on which the date of retirement occurs. If the revision was given on the next day, the Government servant is entitled to get such wage revision. The judgment of the CAT, Bangalore Bench was held to be bad in law by a Division Bench of the Karnataka High Court vide its decision in Union of India and Others v. Y.N.R.Rao in W.P.No.18186 of 2003 (S-CAT) dated 08.12.2003.
10. In paragaph 5 of the judgment, the Division Bench of Karnataka High Court presided by R.V.Raveendran,J. (as he then was) held as follows:
"5.But for the provisions of FR 56, which provides that a Government Servant shall retire from service on the afternoon of last date of the month in which he had attained the age of 58 years, the respondent, who was born on 9.3.1937 would have retired on 8.3.1995. The provision for retirement from service on the afternoon of the last date of the month in which the Government Servant attains the age of retirement instead of on the actual completion of the age of retirement in FR 56 was introduced in the year 1973-74 for accounting and administrative convenience. What is significant is the proviso to clause (a) of FR 56 which provides that an employee whose date of birth is first of a month, shall retire from service on the afternoon of the last date of the preceding month on attaining the age of 58 years. Therefore, if the date of birth of a government is 1.4.1937 he would retire from service not on 30.4.1995, but on 31.3.1995. If a person born on 1.4.1937 shall retire on 31.3.1995, it would be illogical to say a person born on 9.3.1937 would retire with effect from 1.4.1995. That would be the effect, if the decision of the Full Bench of the CAT, Mumbai, is to be accepted. Therefore a government servant retiring on the afternoon of 31.3.1995 retires on 31.3.1995 and not from 1.4.1995. We hold that the decision of the Full Bench (Mumbai) of the CAT that a government servant, retiring on the afternoon of 31st March is to be created as retiring with effect from the first day of April, that is same as retiring on the forenoon of first of April, is not good law."
11. In this State the teachers are allowed to work based upon the executive order of the Government on re-employment basis and not on the basis of continuation of service. Therefore, the argument advanced by the learned counsel for the petitioner based upon the judgment of the Supreme Court reported in AIR 2005(SC) 3066 (cited supra) has no application to the facts of the case. The petitioner's salary on reemployment was on the basis of his last pay drawn less pension. Actually as per the scheme of the State Government, a retired teacher is only a pensioner and his services are utilised till the end of the academic year on the promise that he will be paid his last drawn wages minus his pension. This cannot be compared with the statutory rules framed by the Kerala State and the interpretation of those service rules by the Supreme Court.
12. The writ petition is misconceived and bereft of any legal reasons. The writ petition stands dismissed. No costs.
jikr To
1.The Government of Tamil Nadu Rep. by its Secretary, Department of Higher Education, Fort St. George, Chennai.
2.The Director of Collegiate Education, College Road, Nungambakkam, Chennai.
3.The Joint Director of Collegiate Education, Madurai Region, Madurai.
4.Pasumpon Muthuramalinga Thevar College, Rep.by its Secretary, Usilampatti, Madurai District.