Madras High Court
K. Sampath vs The State Of Tamil Nadu on 4 September, 2006
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 04/09/2006 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P(MD)No.4921 of 2006 and M.P.Nos.1 & 2 K. Sampath ... Petitioner Vs. 1. The State of Tamil Nadu, rep. By the Secretary to Government, Rural Development Department, Secretariat, Chennai - 9. 2. The Director of Rural Development, Rural Development Directorate, Saidapet, Chennai - 15. 3. The District Collector, Sivagangai District, Sivagangai. ... Respondents Writ petition filed under Article 226 of Constitution of India, praying this Court to issue a writ of Certiorarified Mandamus to call for the records on the file of the first respondent in connection with the order passed by him in his proceedings Lt.No.36439/E4/2005 dated 12.12.2005 and quash the same and direct the respondents to count half of the non-provincialised service of the petitioner from 1.3.1985 to 1.1.2000 for the purpose of repayment of all the terminal benefits including the commutation of pension, pension arrears and monthly pension with 18% interest per annum. !For Petitioner ... Mrs.J.Nishabanu ^For Respondents ... Mr.D.Sasikumar Government Advocate :ORDER
Prayer in the writ petition is to call for the records on the file of the first respondent in connection with the order passed by him in his proceedings Lt.No.36439/E4/2005 dated 12.12.2005 and quash the same and direct the respondents to count half of the non-provincialised service of the petitioner from 1.3.1985 to 1.1.2000 for the purpose of repayment of all the terminal benefits including the commutation of pension, pension arrears and monthly pension with 18% interest per annum.
2. Petitioner was selected and appointed to the post of part-time Panchayat Assistant on 1.3.1985 and was regularly appointed as such with effect from 1.1.1991. On 1.1.2000, he was appointed as Junior Assistant and then promoted to the post of Assistant on 14.3.2004. He retired from the service on 31.5.2005 and applied for pension, counting the period during which he served as Panchayat Assistant from 1.3.1985 to 1.1.2000. But, the second respondent rejected the request by order dated 6.4.2005 relying upon the Government Letter No.10973/Pension/2000-1, Finance Department, dated 4.10.2000. Petitioner challenged the said order in W.P.No.6537 of 2005 and this Court by order dated 25.7.2005 passed the following order.
"4. Petitioner's grievance is that G.O.Ms.No.118, Finance (Pension) Department, dated 14.02.1996, has not been taken for consideration, while passing the impugned order.
5. Without going into the merits of the contention of the petitioner, it is sufficient to direct the first respondent to consider the claim of the petitioner in the light of the said G.O., and pass appropriate orders, in accordance with law and on merits, within a period of eight weeks from the date of receipt of a copy of this order."
Thereafter the first respondent passed the impugned order in letter No.36439/E4/2005, dated 12.12.2005 stating that G.O.Ms.No.118 Finance (Pension) Department, dated 14.2.1996 cannot be applied in favour of the petitioner in view of the Government Letter No.10973/Pension/2000-1, Finance Department, dated 4.10.2000, wherein it is clarified that the service rendered under the Village Panchayat Boards cannot be counted as qualifying service for the purpose of calculating pension. The said order is challenged in this writ petition.
3. The learned counsel appearing for the petitioner argued that the petitioner is having more than 20 years of total service and the period from 10.3.1985 to 1.1.2000 is bound to be counted for the purpose of arriving at pension apart from the period from 1.1.2000 to 31.5.2005. The learned counsel further argued that the respondents have no jurisdiction to rely upon the Government letter dated 4.10.2000 in the impugned order for rejecting the claim of the petitioner since G.O.Ms.No.118 dated 14.2.1996 creates a right in favour of the petitioner to count 50% of the service in the Village Panchayt as pensionable service and if the same is counted, petitioner will be having more than 10 years of pensionable service till his retirement on 31.5.2005 and therefore the respondents are bound to sanction pension from 1.6.2005.
4. The learned Government Advocate, on instructions submitted that G.O.Ms.No.118 dated 14.2.1996 cannot be applied for the petitioner in view of the clarification issued by the Government in its Letter dated 4.10.2000 and therefore the impugned order rejecting the request of the petitioner to count his service in the Village Panchayat is illegal and valid.
5. I have considered the rival submissions made by the learned counsel appearing for the petitioner as well as the learned Government Advocate for the respondents.
6. The point in issue is whether the petitioner is having more than 10 years of pensionable service for sanction of pension and whether he is entitled to get sanction of pension from 1.6.2005.
7. It is the admitted case that the petitioner was appointed as a part- time Panchayat Assistant from 1.3.1985 and was regularly appointed in the said post with effect from 1.1.1991 . He was promoted as Junior Assistant on 1.1.2000, further promoted as Assistant from 14.3.2004 and retired as Assistant on 31.5.2005. Thus, admittedly, the period of service from 1.1.2000 to 31.5.2005 is pensionable service.
8. G.O.Ms.No.118 Finance (Pension) Department, dated 14.2.1996 reads as follows, GOVERNMENT OF TAMIL NADU FINANCE (PENSION) DEPARTMENT G.O.Ms.No.118 Dated: 14th February, 1996 Sub : PENSION - Counting of half of the service under non- pensionable establishment along with regular service under pensionable establishment for pensionary benefits -
Orders Issued.
Read : 1) G.O.Ms.No.437, Finance (Pension), dated 23.6.1988
2) G.O.Ms.No.955, Finance (Pension), dated 23.12.1991.
Order:
In the Government Order first read above, orders have been issued to count half of the service rendered under contingent establishment along with regular service for pensionary benefits subject to certain conditions in respect of Government employees and employees of local bodies and aided educational institutions.
2) The Government have examined the question of extending the concession ordered in the Government first read above to the case of Government employees who were borne on non-pensionable establishment and subsequently brought into pensionable establishment and have decided to count half of the service rendered under non-pensionable establishment along with service under pensionable establishment for pensionary benefits. They accordingly direct that half of the service rendered by State Government employee under non-pensionable establishment shall be allowed to be counted for pensionary benefits along with regular service under pensionable establishment subject to the following conditions.
(a) Service under non-pensionable establishment should have been in a job involving whole time employment.
(b) The service under non-pensionable establishment should have been on time scale of pay.
(c) The service under non-pensionable establishment should have been continuous and followed by absorption in pensionable establishment without a break.
3. These orders shall take effect from the date of this Government Order. In respect of those who retired prior to the date of this order, eligible pension or revised pension, as the case may be shall be paid from the date of this order, and that there can be no claim for arrears in any case for the period upto the date of this order.
(BY ORDER OF THE GOVERNOR) P.V.RAJARAMAN, Secretary to Government"
A bare reading of the above Government Order contemplates three conditions to count the half of the service rendered by the State Government employees under non-pensionable establishment, that is, (1) Service under non-pensionable establishment should have been in a job involving whole time employment; (2) The service under non-pensionable establishment should have been on time scale of pay; and (3) The service under non-pensionable establishment should have been continuous and followed by absorption in pensionable establishment without break. Further, the said Government Order nowhere states that the non- pensionable service rendered by a person in Village Panchayat will not be counted for pension. On the contrary the said Government Order is general in nature, which also states that the same is applicable to the Government employees, employees of Local Bodies and Aided Educational Institutions. Village Panchayat is admittedly a Local Body. Therefore, 50% of the service rendered by the petitioner in the Village Panchayat on full time basis with time scale of pay from 1.1.1991 to 1.1.2000 is countable for the purpose of calculating pension under G.O.Ms.No.118 dated 14.2.1996. Thus the petitioner is having five more years of pensionable service upto 1.1.2000 and by adding the same with the admitted pensionable service from 1.1.2000 to 31.5.2005, the total pensionable service comes to 10 years and 5 months. Hence the petitioner satisfies the minimum qualifying service of 10 years to get sanction of pension from 1.6.2006. Rule 43(2) of the Tamil Nadu Pension Rules, 1978 contemplates that the employees having minimum ten years of qualifying service are eligible to get pension.
9. The reason stated in the impugned order stating that in view of the subsequent clarification issued by the Government by letter dated 4.10.2000 clarifying G.O.Ms.No.118 dated 14.2.1996, is totally illegal since the Government order issued with the executive power of the Government in the name of the Governor cannot be clarified by a letter of the Secretary to the Government. Admittedly no amendment to G.O.Ms.No.118 dated 14.2.1996 is issued and therefore the Government order will prevail over the subsequent Government letter.
10.(a) In the decision reported in (2005) 10 SCC 244 (R.P.Bhardwaj v. Union of India and others) the issue dealt with was as to whether a letter of the Central Ministry issued by the Secretary will over ride the Office Memorandum and the Honourable Supreme Court held that the Government letter cannot be acted upon unless a new Office Memorandum is issued. The relevant portion of para 8 is extracted hereunder, "......... We have already noticed that the OM dated 19.7.1989 contained instructions to be noted and followed by all concerned. That position was prevailing when the proposal by means of letter dated 23.11.1989 was mooted. It was not yet issued as OM for compliance by all concerned as was done in respect of the OM dated 19.7.1989. In our view, it was still at a premature stage and before being final so as to be circulated by the Government of India for being followed by the authorities and the departments and all concerned, it seems to have been acted upon by the Service Commission against the OM which was in operation. Even if any implied approval is inferred by the Public Service Commision, it would be of no consequence since then too it would not be anything more than an approval of a proposal. An approved proposal would not replace an OM issued by the Government of India. Even after approval the Government may not issue any OM. The Commission wrongly acted upon the mere proposal."
(b) In an unreported decision in W.P.No.1713 of 1988, etc., batch by common order dated 7.11.1990, this Court considered similar issue as to whether the Government letter will prevail over the Government Order or not and held that the Government Order having been authenticated and expressed to be taken in the name of the Governor, has the sanctity of an order issued under Article 166 of the Constitution of India and the Government letter issued subsequently cannot supersede the earlier Government Order.
(c) This Court in the decision reported in 2004 WLR 805 (P.Jeya v. Union of India & Others) considered a similar issue as to whether the Government letter will prevail over the Government Order. The relevant portion of para 34 reads as follows, "In the given case, Government Order has been passed in exercise of power under Article 162 of the Constitution of India and it is an executive order, which could be issued only in the name of the Governor. The executive order issued in the name of the Governor cannot be modified by another executive order, not being issued in the name of the Governor. ......"
11. By virtue of issuance of G.O.Ms.No.118 Finance (Pension) Department, dated 14.2.1996, petitioner has got the right to count his 50% of service prior to his appointment from 1.1.2000 for pension. Under the Government letter dated 4.10.2000, the said benefit is sought to be taken away. In view of my earlier finding that the Government letter cannot over-ride the Government Order, the petitioner is entitled to succeed. Even otherwise, on any ground if the Government letter is applicable, it can be applied only prospectively to the persons who have joined service after 4.10.2000 in view of the decision of the Hon'ble Supreme Court reported in AIR 1972 SC 1546 (State of Haryana v. Shamsher Jang) wherein in para 7 it is held thus, "7. It may be noted that herein we are dealing only with those who were promoted from the cadre of clerks in the Secretariat. The first question arising for decision is whether the Government was competent to add by means of administrative instructions to the qualifications prescribed under the Rules framed under Art. 309. The High Court and the courts below have come to the conclusion that the Government was incompetent to do so. This Court has ruled in Sant Ram Sharma v. State of Rajasthan, (1968) 1 SCR 111 = (AIR 1967 SC 1910) that while the Government cannot amend or supersede the statutory rules by administrative instructions, if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. Hence we have to see whether the instructions with which we are concerned, so far as relate to the clerks in the Secretariat amend or alter the conditions of service prescribed by the rules framed under Art.309. Undoubtedly the instructions issued by the Government add to those qualifications. By adding to the qualifications already prescribed by the rules, the Government has really altered the existing conditions of service. The instructions issued by the Government undoubtedly affect the promotion of concerned officials and therefore they relate to their conditions of service. The Government is not competent to alter the rules framed under Art.309 by means of administrative instructions. We are unable to agree with the contentions of the State that by issuing the instructions in question, the Government had merely filled up a gap in the rules. The rules can be implemented without any difficulty. We see no gap in the rules."
The same view is taken in the decision reported in AIR 1999 SC 59 (Chandraprakash Madhavrao Dadwa v. Union of India) wherein in para 53 the Honourable Supreme Court held as follows, "53. To put it in a nutshell, the change in the essential qualification made in 1990 or 1998 or the additional functions now required to be performed by the appellants could not retrospectively affect the initial recruitment of appellants as Data Processing Assistants nor their confirmation in 1989. Recruitment qualifications could not be altered or applied with retrospective effect so as to deprive the recruitees of their right to the posts to which they were recruited nor could it affect their confirmations."
12. Hence, the Government letter dated 4.10.2000 cannot be made applicable to the petitioner as he has been given regular appointment from 1.1.2000 and if it is applied, it will certainly affect the petitioner, which would amount to alteration of his conditions of service, more particularly in receiving his pension.
13. Since the petitioner satisfies that he is having 10 years and 5 months of pensionable service, I hold that the impugned order is unsustainable and the respondents are bound to sanction pension to the petitioner from 1.6.2005.
14. In the result, the impugned order dated 12.12.2005 is set aside and the respondents are directed to sanction pension to the petitioner from 1.6.2005. The monthly pension payable to the petitioner shall be sanctioned and paid within a period of two months and the arrears of pension from 1.6.2005 shall be paid within three months from the date of receipt of copy of this order.
The writ petition is allowed with the above directions. No costs. Connected miscellaneous petitions are closed.
vr To
1. The Secretary to Government, Rural Development Department, Secretariat, Chennai - 9.
2. The Director of Rural Development, Rural Development Directorate, Saidapet, Chennai - 15.
3. The District Collector, Sivagangai District, Sivagangai.