Madras High Court
K.R.Kumarasamy vs The Accountant General on 11 April, 2018
Author: V.Parthiban
Bench: V.Parthiban
IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 11.04.2018 CORAM THE HONOURABLE THIRU JUSTICE V. PARTHIBAN W.P.No.26540 of 2011 K.R.Kumarasamy .. Petitioner versus 1. The Accountant General (Accounts & Entitlement), Office of the Accountant General, No.361, Anna Salai, Chennai-600 018. 2. The Additional Assistant Educational Officer, O/o the Additional Assistant Educational Officer, Tiruchengode, Namakkal District. .. Respondents Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, praying for issuance of Writ of Certiorarified Mandamus, to call for the records pertaining to the impugned order No.19/II/K64-731/VR/04-05/158 dated 29.10.2004 passed by the first respondent, quash the same and consequently, direct the respondents to disburse pensionary benefits with effect from 24.09.1981. For Petitioner : Mr.M.Babu Rangasamy For Respondents: Mr.Vijay Shankar Ms.P.Kavitha, GA for R2 ORDER
The petitioner has approached this Court, seeking the following relief:
To issue Writ of Writ of Certiorarified Mandamus, to call for the records pertaining to the impugned order No.19/II/K64-731/VR/04-05/158 dated 29.10.2004 passed by the first respondent, quash the same and consequently, direct the respondents to disburse pensionary benefits with effect from 24.09.1981."
2. The petitioner was employed as Assistant Teacher in a Primary School, Tiruchengode taluk. He was employed from 4.8.1970 till 24.09.1981, i.e. for a period of 11 years, one month and 21 days. Due to family circumstances, he tendered his resignation on 13.7.1986 and his resignation was accepted and he was relieved on 8.2.1996. After resignation from service, it appears that the petitioner had sent a representation on 10.9.2004. Thereafter, an application was made under Right to Information Act on 1.7.2011 in order to verify the status of his representation pending before the authority concerned. In respect to his application under RTI Act, a communication was sent on 25.7.2011 stating that he was not eligible for pensionary benefits in lieu of his resignation from service in terms of Rule 23 of the Tamil Nadu Pension Rules. The said rule is extracted herein below:
"23. Forfeiture of service on resignation- (1) Resignation from a service or post entails forfeiture of past service:
Provided that a resignation shall not entail forfeiture of past service if it has been submitted to take up with proper permission, another appointment, whether temporary or permanent, under Government where service qualifies."
3. Upon notice, Mr.Vijay Shankar, learned counsel entered appearance for respondent No.1 and Ms.P.Kavitha, learned Government Advocate for respondent No.2 and filed counter affidavits on behalf of the respondents. The sum and substance of the counter affidavits was that once an employee had chosen to resign from service, he would suffer forfeiture of his past service and hence he is not entitled to pension and since the services of the petitioner were brought under Tamil Nadu Pension Rules, 1978 (in short, 'the Rules') with effect from 1.7.1991 and in terms of Rule 23, his service had been forfeited and thereby, he is not entitled to claim for pension.
4. On the other hand, learned counsel appearing for the petitioner would submit that this Court in the past, has liberally construed Rule 23 of the Rules and held that any resignation due to ill-health, had to be considered for pension in case the employee completes the qualifying service of minimum ten years. In the instant case, the petitioner had completed more than 10 years of service and therefore, he is qualified for pensionary benefits. Only thing which stands in the way of the petitioner getting pension was Rule 23 which provides for forfeiture of service in case the employee resigns from service.
5. Earlier, this Court, on number of occasions, had grappled with the issue of interpretation of Rule 23 of the Rules in order to provide pensionary benefits to the employee who resigns due to ill health or personal reasons. The Courts have made a distinction between employee resigns due to ill-health or personal reasons the resignation of the employee in order to avoid any penal action to be initiated against them for any act of misconduct. In respect of former category, the Courts have held that the resignation must be construed as one of 'voluntary retirement' and the employee must be paid pensionary benefits.
6. Although the learned counsel relied upon the orders passed by this Court in W.P.(MD) No.7510 of 2010, dated 30.08.2010 and WA(MD) No.333 of 2011 dated 26.6.2011 respectively, which are enclosed in the typed set of papers, however, these orders passed by the learned single Judge as well as Division Bench of this Court, do not apply to the factual matrix of the present case.
7. Be that as it may, a learned single Judge of this Court in W.P.No.5170 of 2011, vide order, dated 15.12.2011, has considered the similar claim and ordered payment of pensionary benefits to the petitioner therein, who had also resigned after rendering a minimum qualifying service. The learned Judge has relied upon the observations of the Division Bench of this Court made in its decision reported in 2008 (6) CTC 700 (D.Vijayarangan versus Secretary, Sales Tax Appellate Tribunal (Addl.Bench), Madurai. The relevant portion of the order of the learned single Judge including the observations of the Division Bench as found in paragraphs 4 and 5, is extracted as under:
"4. Admittedly, the petitioner has resigned. As seen from the counter affidavit filed by the respondent, the petitioner has resigned on account of his ill-health. The petitioner did not take up any further employment nor obtained any permission from the respondent. When the petitioner has resigned due to his ill-health, the forfeiture contemplated under Rule 23 of the Rules does not have any application. A proper construction of the said Rule would be that the same is applicable only in a case where an employee concerned, is qualified to seek another appointment on his resignation. Construing the very same Rule and by applying the very same case of an employee resigned on the ground of ill-health, the Division Bench of this Court in the decision reported in 2008 (6) CTC 700 (D.Vijayarangan Vs. Secretary, Sales Tax Appellate Tribunal (Addl.Bench), Madurai, has held as follows:-
"6. In the present case, we find that the petitioner proceeded on leave because of mental illness and submitted resignation letter on 2nd August, 1988. It is also not in dispute that the 1st respondent, by letters dated 9th December, 1988 and 4th May, 1989, instructed the petitioner to settle all the dues payable to the Government, and on payment of such dues, it was informed that the resignation of the petitioner was to be accepted, which was actually accepted after receipt of such dues by the State Government. Thus, it will be evident that the petitioner was allowed to resign for which permission was accorded by the State on condition of payment of its dues. It is not the case of the respondent that the petitioner wanted to resign to join service in some other organisation and there was any proceeding for misconduct initiated against him. In fact, there was no allegation made by any of the respondents against the petitioner.
7. In such a situation, a question arise whether the service of an employee can be forfeited if person asks for resignation on the ground of ill-health, which is allowed by the State. Under Rule 23, a person is entitled for all benefits if he is allowed to resign for appointment in some other post under the Government. The Rule is silent with regard to resignation, if given on the grounds of illness or ill-health for which permission is granted by the competent authority. In case, if it is held that the person, who has resigned because of illness or ill-health, as at par with the class of employees, who resign for misconduct or any adverse record, and the class of employees, who resign to join other Government organisation are kept in a separate class for grant of pensionary benefits, in such case one may doubt Rule 23 violative of Article 14 vis-a-vis those who resign for illness or ill-health and is accepted by the competent authority. Therefore, we hold that those who resign because of illness or ill-health and not because of any misconduct or adverse record and are allowed to do so by the State are entitled for the same benefit which is allowed to those who resign to join another service under the State. Comparing the employees who are allowed to resign because of illness or ill-health at par with those employees who resign because of misconduct or adverse record will be otherwise violative of Article 14 of the Constitution of India.
8. We, accordingly, hold that the petitioner is entitled to all the benefits to which the employees are otherwise entitled to under the Proviso to Rule 23, i.e., those who have been allowed to resign to join some other post under the State. The respondents are, accordingly, directed to pay the petitioner the pension and gratuity with 8% interest p.a., within three months from the date of receipt/production of a copy of this order, in accordance with law, taking into consideration the years of service rendered by him with further direction to pay provident fund and other retirement benefits within one month from the date the petitioner submits appropriate application in the format prescribed by the State, failing which the petitioner will also be entitled for 8% interest on the same. The Writ Petition stands disposed of with the aforesaid observations, but there shall be no order as to costs."
5. The ratio laid down by the Division Bench of this Court applies to the case on hand on all force. As discussed above, there is no dispute on the fact that the petitioner has resigned due to his ill-health. Therefore, the petitioner is entitled to succeed and accordingly, a direction is issued to the respondent to pay the pension and other attendant benefits to the petitioner by taking into consideration his past conduct/services till the date of his resignation. The respondent is directed to pass appropriate orders, on merits and in accordance with law, within a period of twelve weeks from the date of receipt of a copy of this order. When the pensionary papers are computed by the respondent in accordance with the Rules, the amount payable to the petitioner will have to be given with 6% interest per annum from the date acceptance of the resignation till the date of actual payment, as the petitioner is nowhere at fault for the non-receipt of the said amount."
8. The learned Judge would also rely upon the decision rendered by the Division Bench of this Court in W.P.No.30277 of 2016, dated 5.4.2017, wherein, the Division Bench has held in paragraphs 22 and 23 as under:
"22. From the above, it becomes imminently clear that where the factors, which compel a Government servant to tender resignation to his services are similar to the ones, which have been pointed out supra by the Supreme Court, for the very same reasons, no compassionate allowance may become payable in cases of resignation from service, but otherwise if the factors are identical or similar, in such a case, denying to make payment of pension in the form of compassionate allowance is neither just nor fair. A welfare State can ill afford to ignore the claims of such persons, who have tendered resignation wholly due to medical grounds or personal reasons, but not for taking up an alternative assignment.
23. We, therefore, hope and trust that the Government would spare appropriate attention immediately to this area because it has a general and universal application across the spectrum of all Government services. Even if a Proviso is added to Rule 23 for making payment of compassionate allowance to such cases of resignation, it would meet the ends of justice. We hope and trust that the State Government would take appropriate decision within the next three months and then communicate their decision to the Principal Accountant General for grant of pension in the form of compassionate allowance to the writ petitioner as well. The State Government will make sure that payment of such pension in the form of compassionate allowance becomes available to all the Government servants, who have tendered resignation purely for personal reasons, but not attributable to either their conduct or other factors as enumerated in the judgment of the Supreme Court."
9. From the above, it could be seen that the issue of grant of pensionary benefits, has been consistently engaged the attention of this Court in regard to the employees of the State who resigned from service after putting in minimum qualifying years of service, namely, 10 years. In respect of those persons, it appears that the Courts have granted the relief in favour of employees by liberal construction of Rule 23. In fact, the Division Bench of this Court, as extracted above, has proceeded further and included 'resignation on personal grounds' also and directed the State Government to bring in necessary changes in the Rules in order to enable the employees to receive pensionary benefits on their resignation.
10. In view of the above and the issues raised in the Writ Petition have already been considered by the the learned single Judge as well as the Division Bench of this Court in favour of the employees, this Court does not see any justification in denying the pensionary benefits to the present petitioner who had admittedly resigned on personal grounds and not for any other extraneous reasons. That being the case, this Court is of the considered view that the petitioner's resignation has to be construed as one of VRS and thereby, he would be entitled to the pensionary benefits on the basis of number of years of service rendered by him.
11. For the foregoing reasons, the Writ Petition is allowed. The respondents are directed to pass appropriate orders, granting pension to the petitioner from the date of his resignation including arrears of pension and continue to pay the pension as admissible and payable to the petitioner. The respondents/competent authority shall pass orders within a period of eight weeks from the date of receipt of a copy of this order. No costs.
suk 11-04-2018
To
1. The Accountant General
(Accounts & Entitlement),
Office of the Accountant General,
No.361, Anna Salai,
Chennai-600 018.
2. The Additional Assistant Educational Officer,
O/o the Additional Assistant Educational Officer,
Tiruchengode, Namakkal District.
V.PARTHIBAN, J.
suk
W.P.No.26540 of 2011
11-04-2018