Madras High Court
C.Kumar vs The State Of Tamil Nadu on 20 April, 2017
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.04.2017 CORAM : THE HONOURABLE MR. JUSTICE R.SURESH KUMAR W.P.No.3869 of 2005 C.Kumar .. Petitioner Vs. 1. The State of Tamil Nadu, rep. By the Secretary to the Government, Education Department, Secretariat, St.Fort George, Chennai-600 009. 2. The Director of Technical Education, Directorate, Guindy, Chennai. 3. The Principal, Annamalai Polytechnic, Chettinad-623 102. .... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, calling for the entire records connected with the impugned order in Lr.No.28765/C-1/2004-2 dated 7.1.2005 passed by the 1st respondent and quash the same and direct the respondents 1 and 2 to sanction all consequential legal benefits and pension to the petitioner w.e.f. 7.10.1984. For Petitioner : Mr. S.N.Ravichandran For R1 to R3 : Mr. A.Zakir Hussain Govt. Advocate O R D E R
The petitioner seeks for a writ of certiorarified mandamus calling for the entire records connected with the impugned order in Lr.No.28765/C-1/2004-2 dated 7.1.2005 passed by the 1st respondent and quash the same and direct the respondents 1 and 2 to sanction all consequential legal benefits and pension to the petitioner with effect from 7.10.1984.
2. The case of the petitioner is that he joined as workshop instructor at 3rd respondent Polytechnic on 01.08.1964 where he was working in various posts for nearly about 20 years. While he was working as Lecturer in Electrical Engineering Department, he got a better post in other institution, namely, Lakshmi Ammal Polytechnic to hold the post of Principal. Therefore, the petitioner had requested the 3rd respondent to permit him to go on a voluntary retirement scheme. However, the third respondent since had not accepted the request of the petitioner, he was constrained to resign his post on 07.07.1984 and thereafter, joined the said institution.
3. From the date of appointment and till date of resignation, the petitioner has completed 19 years 11 months and 6 days service at the 3rd respondent Polytechnic.
4. According to the petitioner, for the purpose of resignation either 3 months notice should have been given or in lieu thereof 3 months salary should be paid to the employer. Since the petitioner dispensed with 3 months notice, the 3 months salary had to be paid, accordingly, the petitioner paid the same to the 3rd respondent. Therefore, according to the petitioner, he is having the qualifying service of 20 years at the 3rd respondent Polytechnic, which is a Government recognized aided Polytechnic and therefore, he would be entitled for pensionary benefits from the respondents.
5. The further case of the petitioner is that after rejoining in another institution after getting resigned from the 3rd respondent institution, the petitioner made a request to get pensionary benefits and such request was made on 12.10.1990 to the second respondent. Even thereafter, several such representations had been made by the petitioner seeking pension for his eligible service of nearly 20 years put in at 3rd respondent Polytechnic, nothing has been materialised. Therefore, the petitioner finally approached this Court by filing a writ petition in W.P.No.33403 of 2004 wherein by order dated 19.11.2004, this Court had directed the respondent therein, who are 1st and 2nd respondents herein to decide and dispose of the representation made by the petitioner in accordance with law and on merits within a time frame.
6. Pursuant to the said direction issued by this Court, the first respondent has passed an order in Government letter dated 07.1.2005 rejecting the request of the petitioner for pension. Challenging the said order dated 07.01.2005, the petitioner has filed the present writ petition with the above said prayer.
7. Mr.S.N. Ravichandran the learned counsel appearing for the petitioner would submit that the petitioner admittedly, has put in 19 years 11 months and 6 days service at the 3rd respondent Polytechnic and if the 3 months notice period which has been dispensed with and in lieu thereof 3 months salary has been paid by the petitioner to the 3rd respondent, is also taken into account, certainly, the petitioner could be completing the 20 years service at the 3rd respondent polytechnic, which, according to the learned counsel for the petitioner is only an eligible service to seek full pension from the Government.
8. The learned counsel appearing for the petitioner would also invite the attention of this Court in respect of Government Order in G.O.Ms.No.1015, Education Department dated 05.06.1981. In the said Government Order, reference were made to various earlier Government Orders issued from the years 1955 to 1977 at various point of time whereby pensionary benefits had been extended to teaching and non teaching staff working in aided school or non Governmental institutions. By quoting the said GO, the learned counsel appearing for the petitioner would submit that the Government issued G.O.Ms.No.650, Education Department, dated 23.4.1975 whereby the teaching staff working in aided technical education institutions such as 3rd respondent Polytechnic had been included for the purpose of pensionary benefits. A crucial date was fixed in the said GO as 01.01.1975, which means those who retire the post on or before 01.01.1975, the crucial date by which the pension scheme was introduced, for those who worked in aided technical institution like Polytechnic, would be eligible to get pension.
9. The learned counsel would further submit that according to the said Government order, those who resigned from the job could not be entitled to get pensionary benefits as the scheme was introduced as a beneficial order for those who worked and retired from aided technical institutions. However, insofar as the teaching staff or non teaching staff, who worked and resigned from various institutions including the aided technical institutions before the respective cut off dates fixed in the respective Government orders, whereby the pension scheme was introduced by the Government, since had been affected, as they did not know that the Government is going to introduce a pension scheme to them at a later stage, the Government had come forward to issue the G.O.Ms.No.1015, Education Department dated 05.06.1981 whereby the following clarification has been given at paragraph 6 and 7 which is extracted hereunder:
6. On the analogy of the orders in Government Memorandum No.21344/Ey 68-5, Education, dated 18th November 1968, G.O.Ms.No.1483, Education, dated 27th August 1973 and G.O.Ms.No.1196, Education, dated 15th July 1975 the following further clarifications are also issued:
(i) the minimum pension admissible may be sanctioned on the basis of collateral evidence even where service books are not available and where no records are available to verify the service particulars.
(ii) Pension can be sanctioned even in cases where the incumbents had resigned since they could not have forseen the institution of Pension Scheme at the time they resigned.
(iii) In the case of invalidation on Medical grounds pension can be sanctioned even in cases where the procedure prescribed in the Tamil Nadu Pension Code had not been followed.
7.The authorities who can sanction pension with reference to these orders will be the same as those sanctioning pension to the respective categories who retired after the crucial dates. (emphasis supplied)
10. In this context the learned counsel appearing for the petitioner would submit that if the import of the G.O.Ms.No.1015, dated 05.06.1981 is applied to the case of the petitioner, certainly, the petitioner would also be eligible to seek pension even assuming that the petitioner has not completed the qualifying service of 20 years at the 3rd respondent Polytechnic. However, in the impugned order, the 1st respondent has given the reason for rejecting the claim of the petitioner that G.O.Ms.No.650, Education Department, dated 23.4.1975 was issued introducing the pension scheme from 01.01.1975 and those who had resigned before the said date, i.e., 01.01.1975 without knowing that the pension scheme is going to be introduced by the Government alone were saved by the clarification issued by the Government through G.O.Ms.No.1015, dated 05.06.1981. Since the petitioner has resigned his job only on 07.07.1984, i.e., well after the G.O.Ms.No.1015, dated 05.06.1981 knowing fully well the consequences thereof, he would not be entitled to claim the pensionary benefits by virtue of paragraph 6 of G.O.Ms.No.1015, dated 05.06.1981.
11. This reason adduced by the first respondent through the impugned order has been assailed and vehemently contended by the learned counsel for the petitioner that the said interpretation sought to be given by the Government in respect of G.O.Ms.No.1015, dated 05.06.1981 is unjustifiable and unsustainable because the issue as to whether the incumbents, who resigned the job even after the crucial date whether would be entitled to get pensionary benefits or not has already been considered by this Court in a Division Bench Judgment reported in 2001 Writ L.R.852 in the matter of Government of Tamil Nadu represented by the Secretary, Department of Education and another Vs. S.V.Paul Jeyaraj.
12. According to the learned counsel for the petitioner the said Government Order as well as the subsequent Government Order, namely, G.O.Ms.No.37 Education Department dated 05.01.1983 has been considered and ultimately, the Division Bench has held that even a teacher, who has resigned after the crucial date fixed by the relevant Government Order can be sanctioned pension by the respective authorities competent to sanction the pension. In this regard, the learned counsel drew the attention of this Court to paragraph 7 of the said Judgment of the Division Bench cited supra which is reproduced here under:
It is therefore clear that a teacher who has resigned even after the crucial dates can be sanctioned pension by the respective authorities competent to sanction pension even without any specific orders from the higher authorities or of the Government condoning the resignation in each individual case. This would clinch the issue in favour of the respondent teacher and we find that the learned single Judge has also relied on the aforementioned Government Order, G.O.Ms.No.37. This is apart from the fact that even the language of the Government Order dated 05.06.1981 and more particularly of paragraph 6 (ii) cannot be interpreted so as to oust the teachers who have resigned after the introduction of the Pension Scheme. The provision has to be interpreted as giving concessions even to the persons who have resigned earlier to the institution of the said Pension Scheme. We need not go into that aspect because G.O.Ms.No.37 is more than clear. Therefore, we confirm the Judgment of the learned single Judge. We are told that there is a stay in the matter. We direct the government to finalise the pension of the respondent teacher within three months from today.
13. Therefore, the learned counsel appearing for the petitioner would submit that inview of the law having been declared by this Court based on the Government Orders which are beneficial in nature to those who resigned the job even before the cut off date or after the cut off date, the petitioner shall be entitled to get the pensionary benefits for qualified service which is almost 20 years and therefore, the petitioner's claim ought not to have been rejected by the first respondent through the impugned order, hence he would submit that the impugned order is liable to be interfered with.
14. Contrary to the said submissions, the learned Government Advocate appearing for respondents 1 and 2 would submit that the petitioner admittedly, has not put in 20 years of qualified service at the 3rd respondent institution and he resigned only after completing 18 years 5 months and 5 days of service. Even at the time of making the resignation, the petitioner has specifically averred in the letter of resignation dated 11.6.1984 that he was aware of the consequences of resignation as per Rules and he shall abide by them. Therefore, the petitioner after noting the factor that he would not be eligible to get pensionary benefits, if he resigned before the completion of qualifying service of 20 years, has resigned for getting better prospects on his own risk.
15. The learned Government Advocate would further submit that even though Government has issued various GOs introducing the pensionary benefits to those who have not been covered under the Government pension scheme, which are in vogue for Government servants, those benefits were conferred on a particular class of employees especially, the department of Education for both teaching and non teaching staff. Those pension schemes introduced from time to time under the various Government Orders would be applicable to those who have been covered under the said Government Orders. Insofar as the petitioner's case is concerned, since he worked and resigned from 3rd respondent Polytechnic which is an aided Polytechnic, his case if at all to be considered, is only under G.O.Ms.No.650 dated 23.4.1975, through which, the pension scheme was introduced from 01.01.1975. Even though the petitioner resigned in the year 1984, at that time, the G.O.Ms.No.650 dated 23.4.1975 was in force provided if the petitioner has put in the qualifying service of 20 years only, he would be entitled to get the pension under the said G.O.Ms.No.650 dated 23.4.1975. If he has not completed the qualifying service, he would not be entitled to get pension under the said GO. Only after knowing these consequences, the petitioner has tendered his resignation and this regard, he has specifically mentioned at his letter of resignation that he was aware of the consequences of resignation. Therefore, he has voluntarily given up his claim of pension, for his better prospects, to join in some other institution as a Principal.
16. The learned Government Advocate would also submit that merely because by subsequent Government Order G.O.Ms.No.1015 dated 05.06.1981, whereby certain clarification has been issued under paragraph 6, the petitioner would not automatically be entitled to get pensionary benefits because as per clause 6(ii) of the said GO, those who have resigned prior to the crucial date without foreseeing the pension scheme going to be introduced by the Government alone were made eligible to get the benefits. In other words, those who resigned the job prior to the crucial date i.e. 01.01.1975 alone would be entitled to get the benefit by virtue of clause 6(ii) of the G.O.Ms.No.1015 dated 05.06.1981. Since, admittedly, the petitioner resigned the job only in the year 1984 and admittedly, he does not have the qualifying service of 20 years to get the pension, he would not be entitled to get any pensionary benefits as he claimed, therefore, the rejection order passed by the first respondent, through the order impugned herein, is accordance with the Government Orders referred to above and therefore, the same is not required to be interfered with.
17. This Court has considered the said rival submissions made by the learned counsel appearing for both sides.
18. The issue raised in this writ petition is in a very short compass as whether the petitioner would be entitled to get pensionary benefits for his service rendered at the 3rd respondent Polytechnic by virtue of G.O.Ms.No.650 dated 23.4.1975 as well as G.O.Ms.No.1015 dated 05.06.1981.
19. There is no much controversy in respect of the import of the said Government Orders. No doubt, the pension scheme was introduced for the teaching staff working in aided Polytechnic/Technical institutions only from 01.01.1975. As per the clarification in clause 6(ii) of G.O.Ms.No.1015 dated 05.06.1981, those who resigned the job prior to the said crucial date i.e., 01.01.1975 alone would be entitled to get pension. However, insofar as the case of the petitioner is concerned, since he has resigned the job admittedly, in 1984 ie., well after the crucial date as fixed in G.O.Ms.No.650 dated 23.4.1975, whether the clarification made in 6(ii) would be made applicable to the petitioner in the given facts, where he had resigned only after the issuance of the GO and not prior to that.
20. In this regard, as has been rightly cited by the learned counsel for the petitioner, the issue came up for consideration before this Court in the Judgment cited supra 2001 Writ L.R.852 wherein the Division Bench of this Court after having taken into account various Government Orders including the Government Order in G.O.Ms.No.1015 dated 05.06.1981 as well as G.O.Ms.No.37 dated 05.01.1983, whereby some clarification has been issued in respect of G.O.Ms.No.1015 dated 05.06.1981, has ultimately concluded that a teacher who has resigned even after the crucial date can be sanctioned pension by the respective authorities competent to sanction pension even without any specific orders from the higher authorities or the Government. The relevant portion of the said order of the Division Bench at para 7 has already been extracted herein above.
21. Moreover, the Government also issued a letter in Letter.No.Ms. No.1490 Education dated 26.12.1985 wherein certain clarification has been issued on account of G.O.Ms.No.1015 dated 05.06.1981 and G.O.Ms.No.37 dated 05.01.1983 and other connected Government Orders. Para 3 of the said letter dated 26.12.1985 can be usefully referred to which is therefore, extracted hereunder:
The Government have decided that hereafter (i.e. from the date of this letter) Pension will not be sanctioned under the PENSION SCHEME FOR STAFF OF NON-GOVERNMENT EDUCATIONAL INSTITUITIONS to any staff of those institutions who have resigned ON OR AFTER the crucial date (meaning the crucial dates mentioned in para 1 above). The Heads of Departments concerned, (Director of School Education etc.) are requested, not to send any proposals to Government for sanction of pension under the said scheme, in/respect of staff of non-Goverment educational institutions who have resigned on or after the crucial date.
22. As per the said clarification issued in Government letter G.O.Ms.No.1015 dated 05.06.1981 at paragraph 3 as has been extracted above, the Government has decided not to sanction pension for the staff of non Government Educational institutions, only from the date of the said letter i.e. from 26.12.1985. Even if the said logic, as has been mentioned in the said letter, is applied to the case of the petitioner, the petitioner would escape from the clutches of the said letter, as admittedly, he has resigned the job on 07.07.1984 itself. That is well before the date of the letter i.e., 26.12.1985.
23. It is also a fact that the petitioner has rendered services at the 3rd respondent institution for a total period of 19 years 11 months and 6 days i.e. from 01.08.1964 to 07.07.1984. However, for the purpose of his higher studies he has put on leave for 1 year 6 months and 1 day and the same has infact been reduced from the total pensionable services and therefore, the net qualifying service has been calculated only as 18 years 5 months and 5 days. Though in this regard, the learned counsel appearing for the petitioner has raised an issue that the said period of 1 year 6 months and 1 day, the petitioner was put on loss of pay for his higher studies, the same can very well be taken into account for the purpose of pension. If that period is also taken into account, the total service is, as has been mentioned above, 19 years 11 months and 6 days. As referred to above, the petitioner in lieu of three months notice before resignation has paid the salary equal to three months and therefore, technically the said three months period also should be taken into account as a qualifying service in his account. If that is taken into account, certainly, the petitioner would cross the qualifying service of 20 years. Therefore, viewing from that angle also the case of the petitioner cannot be rejected, as has been done by the first respondent, through the impugned order. Either the petitioner shall be considered as a qualifying person to get full pension if his 20 years qualifying service is taken into account as has been referred to above or in the alternative, he would be considered for minimum/prorata pension on the basis of his qualifying service, either for 19 years 11 months and 6 days or 18 years 5 months and 5 days and on either of these cases the petitioner can very well be entitled to seek pension, inview of the law having been laid down by this Court, in the Division Bench Judgment (cited supra) 2001 Writ L.R.852 based on the Government Orders referred to above.
24. Therefore, for all these reasons, this Court finds that the petitioner could be entitled to succeed in this writ petition. Therefore, the impugned order is liable to be quashed and accordingly, quashed.
25. The respondents are hereby directed to pass orders accepting the qualifying service of the petitioner at the third respondent Polytechnic college for the purpose of pension and accordingly, pensionary benefits shall be sanctioned to the petitioner and the pension arrears shall also be calculated and the same shall be paid. The aforesaid exercise shall be done by the official respondents within a period of three months from the date of receipt of a copy of this order.
26. With these directions, the writ petition is disposed of.
20.04.2017 Index : Yes Internet : Yes kua To
1. The Secretary to the Government, Education Department, Secretariat, St.Fort George, Chennai-600 009.
2. The Director of Technical Education, Directorate, Guindy, Chennai.
3. The Principal, Annamalai Polytechnic, Chettinad-623 102.
R.SURESH KUMAR,J.
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