Madras High Court
The Government Of Tamil Nadu Rep. By vs K.Sakthivel .. First on 27 March, 2018
Bench: T.S.Sivagnanam, R.Tharani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.03.2018
Judgment reserved on: 14.03.2018
Judgment pronounced on: 27.03.2018
CORAM
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
and
THE HONOURABLE MRS.JUSTICE R.THARANI
W.A(MD)No.51 of 2018,
1431 and 1432 of 2017
and
C.M.P(MD)Nos.262 of 2018,
10923 and 10927 of 2017
and
W.P(MD)Nos.22510 of 2015,
2925, 4165, 4181, 5236,
5505, 6304, 6413, 6878,
8247, 8255, 11246, 11409,
11787, 12597, 17377,
18089, 18090, 18092, 19019,
20828 to 20833,
22184 of 2017, 1693,
1694, 1695, 4482, 4483,
4698 to 4713,
2599 to 2603 and
5172 to 5177 of 2018
and
W.M.P(MD)Nos.4753 and 4754 of 2018
W.A(MD)No.51 of 2018:
1.The Government of Tamil Nadu rep. by
its Principal Secretary to Government,
Forest and Environment Department,
Fort St. George, Chennai ? 9.
2.The Principal Chief Conservator of Forests,
Panagal Buildings, Saidapet, Chennai ? 15.
3.The Conservator of Forest,
Megamalai Forest Division, Theni.
4.The District Forest Officer,
Madurai Division, Madurai. .. Appellants/
Respondents 1 to 4
Vs.
1.K.Sakthivel .. First
Respondent/Writ Petitioner
2.The Principal Accountant General of Tamil Nadu,
Office of the Accountant General, Teynampet,
Chennai ? 18. .. Second
Respondent/Fifth Respondent
PRAYER: Writ Appeal is filed under Clause 15 of the Letters Patent, against
the order, dated 30.11.2016, made in W.P(MD)No.22833 of 2016.
!For Appellants : Mr.VR.Shanmuganathan,
Special Government Pleader.
^For Respondent No.1 : No appearance
For Respondent No.2 : Mr.P.Gunasekaran
:COMMON JUDGMENT
[Common Judgment of the Court was delivered by T.S.SIVAGNANAM, J.] In these batch of cases, there are writ appeals filed by the Government and writ petitions and the common issue involved in all the cases pertain to the Plot Watchers, who were working on daily wage basis and were brought into regular establishment, seek for counting half of their service rendered as Plot Watchers along with the regular service rendered by them, to enable them to get pensionary benefits.
2.W.A(MD)No.51 of 2018 is taken as the lead case. This appeal by the State is against the order in W.P(MD)No.22833 of 2016. The said writ petition was filed praying for issuance of a writ of mandamus to direct the appellants to fix and disburse pension by counting half of the service rendered by the first respondent/writ petitioner from 01.08.1985 to 01.08.2013 as Plot Watcher on daily wage basis along with regular service rendered by him from 02.08.2013 till 31.07.2016.
3.The learned Special Government Pleader appearing for the appellants submitted that the writ petitioner was appointed as a Plot Watcher in the Social Forestry Division during 1981 and worked on daily wage basis till 2009. During 2009, the writ petitioner along with other similarly placed persons were appointed as Forest Watchers in regular time scale of pay.
4.It is submitted that the Government by G.O.(Ms)No.64, Environment and Forests (FR-2) Department, dated 08.03.1999, took a decision to bring the Plot Watchers and Gardeners, who were working on daily wages into regular time scale of pay, by considering the recommendations of the Principal Chief Conservator of Forests. The recommendation being to relax the minimum educational qualification of pass in S.S.L.C. and in respect of Plot Watchers, who were appointed on daily wages prior to 08.07.1980, to be appointed as Forest Watchers as per their seniority. This recommendation was made by the Principal Chief Conservator of Forests, taking into consideration that persons like that of the writ petitioners had filed cases before the Tamil Nadu Administrative Tribunal and obtained interim orders of stay from filling up the vacancies in the post of Forest Watchers. Therefore, the Principal Chief Conservator of Forests while making recommendation, had noted about the pendency of several cases and if the recommendation is accepted, all cases would stand disposed of. The Government favourably considered the recommendation and issued G.O.(Ms)No.64 and ordered for the Plot Watchers working in the Social Forestry Division and the Guards be brought into regular time scale of pay by relaxing the minimum educational qualification and directing preparation of a statewide list showing the names of all such Plot Watchers, who were working in the Social Forestry Division, based on the seniority, i.e., from the date of their engagement as daily wage employees. Such of those persons, whose names find place in the said list, should have working knowledge in Tamil and as per their seniority, will be accommodated in the post of Forest Watchers in the existing vacancies as well as in the vacancies which will arise in future by relaxing the age requirement.
5.By relying upon G.O(Ms)No.64, the learned Special Government Pleader appearing for the appellants submitted that the appointment of the Plot Watchers in regular time scale of pay as Forest Watchers should for all purposes be treated as a fresh appointment. In this regard, the learned Special Government Pleader referred to Rule 11 of the Tamil Nadu Pension Rules and with regard to the Proviso under Rule 11 (4), it is submitted that 50% of the service as daily wages can be considered for computing total length of service, only if the Plot Watchers were absorbed into regular time scale of pay before 01.04.2003. It is submitted that in none of these cases, this requirement has been complied with and since the appointment as Forest Watchers being a fresh appointment, the question of considering the 50% of the service as daily wage worker cannot be taken into consideration.
6.It is further submitted that the Writ Court referred to a decision of the Division Bench, in which the scope of Rule 11(4) of the Tamil Nadu Pension Rules was not considered and therefore, this Court should take into consideration the effect of the said Rule and if the same is done, then the writ petitioners are not entitled to any relief.
7.It is submitted that the earlier decisions of the Division Benches having been rendered without considering the effect of Rule 11(4) and such Judgment cannot be a ground for this Court to extend the same benefit to the other candidates like that of the writ petitioners, who are in fact fresh appointees after G.O(Ms)No.64. In support of such contention, reliance was placed on the decisions of the Hon'ble Supreme Court in Harpal Kaur Chahal (Smt) v. Director, Punjab Instructions, Punjab and Another reported in 1995 Supp (4) SCC 706 and Bharat Petroleum Corpn. Ltd. and Another v. N.R.Vairamani and Another reported in (2004)8 SCC 579.
8.It is further submitted that in some of the cases though the Special Leave Petitions have been dismissed, it was an order of dismissal without reasons and therefore the same does not have any precedential value. In support of such contention, reliance was placed on the decision of the Hon'ble Supreme Court in Union of India and Others v. Jaipal Singh reported in (2004)1 SCC 121. Therefore, it is submitted that there is no estoppel for the State in arguing the above contention before this Court. In support of such contention, reliance was placed on the decision of the Hon'ble Supreme Court in Col.B.J.Akkara (Retd.) v. Government of India and Others reported in (2006)11 SCC 709.
9.The learned Special Government Pleader appearing for the appellants submitted that the question as to whether 50% of the services of daily wages can be considered for computing the total length of service came up for consideration before the Division Bench of this Court in the case of Principal Secretary, Social Welfare and Nutritious Meal Programme Department, Fort. St. George, Chennai and Others v. M.Palanikani [W.A(MD)No.587 of 2014, etc. batch, dated 03.12.2014], wherein it was held that the services rendered as daily wages cannot be taken into consideration for computing total length of service, when it is a case of fresh employment.
10.Further, it is submitted that retrospective regularisation is bad in law as held by the Division Bench in the case of The State of Tamil Nadu, rep. by the Secretary, Department of Health and Family Welfare, Fort St. George, Chennai and Others v. T.Gopal and Others reported in 2016 Writ L.R. 1160. Further, it is submitted that the question of invoking Article 14 of the Constitution of India does not arise, merely because some of the employees were granted the benefits pursuant to the orders passed by the Court and rightful denial of benefit, which is not due to the petitioners, would not attract wrath of Article 14. In support of such contention, reliance was placed on the decision of the Division Bench in the case of the Director of Sericulture Department, Salem and Others v. K.Kumar and Others reported in 2015(4) CTC 241.
11.The learned counsels appearing for the respondent/writ petitioners as well as the writ petitioners submitted that the State is attempting to reargue a case, which has attained finality and several Division Benches have considered the same issue and the appeals filed by the State were dismissed and those orders were confirmed by the Hon'ble Supreme Court and were implemented by the appellants. Therefore, the writ petitioners cannot be discriminated and the benefit, which was extended to other similarly placed persons, is required to be extended to them also.
12.Reliance was placed on the decision of the Division Bench in the case of the Government of Tamil Nadu rep. by Secretary to Government, Finance (Pension) Department, Fort St. George, Chennai and Others v. V.Palraj [W.A.No.1633 of 2011, dated 15.09.2011] confirmed by the Hon'ble Supreme Court in Special Leave to Appeal (Civil) CC No.6451 of 2012, dated 16.04.2012 and the decision in the Government of Tamil Nadu rep. by Secretary to Government, Forest and Environment Department, Fort St. George, Chennai ? 600 009 and Others v. G.Ponnusamy and Others [W.A.No.720 of 2013, dated 23.04.2013].
13.Further it is submitted that the Principal Chief Conservator of Forests referred to G.O.No.408, Finance (Pension) Department, dated 25.08.2009 and G.O.No.41, Finance (Pension) Department, dated 09.02.2010 and issued a Circular to all District and Divisional Forest Officers stating that in the said Government Orders it has been ordered that half of the services rendered as Plot Watchers and supernumerary services has to be counted for sanction of pension. Further, it was pointed out that while verifying the report received from division for sanction of pension to the Plot Watchers, it was found that for those whose services were not regularised in the post of Forest Watchers, they simply reported that they are not eligible for sanction of pension and commutation of pension.
14.It was stated that the Plot Watchers approached the Court for getting pension for their services rendered as Plot Watchers in the supernumerary posts and therefore the District and Divisional Forest Officers were requested to send pension proposals for calculating their services rendered in the post of Plot Watcher services and in supernumerary posts. Further, the District and Divisional Forest Officers were directed to make necessary entries in the Service Registers with regard to the date of appointment as Plot Watcher in the Department. Pursuant to the said communication, proposals were sent and in certain cases benefits were also extended. Reference was made to G.O.(D).No.226, Environment and Forest (FR2- II) Department, dated 15.09.2017, where relief was granted to 55 writ petitioners, whose names were mentioned in the Annexure to the said Government Order.
15.The learned counsels referred to the decision of the Division Bench in W.A(MD)No.327 of 2015, dated 08.06.2015 and W.P.Nos.21355 and 21356 of 2017, dated 08.09.2017, in which relief was granted to similarly placed persons. The learned counsels submitted that the Court noted that the cut- off date of 01.04.2003 fixed in the Proviso to Rule 11(4) was quashed by the Court and the said order having become final, the question of denying 50% of the services for the writ petitioners is unsustainable.
16.Heard the learned counsels appearing for the parties and perused the materials placed on record.
17.The question which falls for consideration in these cases is whether 50% of the services rendered by the writ petitioners as daily wage employees in the post of Plot Watchers should be reckoned for the purpose of computing the total length of service of the writ petitioners, after they were brought into regular time scale of pay in the year 2009 in the post of Forest Watchers.
18.The undisputed fact is that all the writ petitioners were brought into regular time scale of pay w.e.f. 07.08.2009. This decision was pursuant to G.O.(Ms)No.95, dated 07.08.2009. Certain background facts have to be taken into consideration to consider as to whether the writ petitioners are entitled to the relief sought for by them. This being, the circumstances under which the Government took a decision to bring the Plot Watchers working on daily wages into regular time scale of pay. The Government took a decision vide G.O.(Ms)No.64, dated 08.03.1999. This decision was taken based on the recommendations given by the Principal Chief Conservator of Forests, vide letter dated 01.08.1996.
19.At the relevant point of time, all the Plot Watchers had filed various cases before the Tamil Nadu Administrative Tribunal and claimed that they should be regularised in service, as they have been working for several years on daily wage basis in very difficult conditions and without considering them for being regularised in service, appointment should not be made to the post of Forest Watchers. It is not in dispute that in some of those cases, interim orders were granted and the entire recruitment process by the Forest Department to the post of Forest Watchers, came to a standstill. The Principal Chief Conservator of Forests took into consideration the plight of the persons like that of the writ petitioners and that many of them have been working from the year 1961 as Plot Watchers or Guards and that they should be considered for appointment as Forest Watchers by relaxing the educational qualification, which is a pass in S.S.L.C. Further it was recommended that as in the case of the candidates, who were appointed as Plot Watchers under Social Forestry Department, prior to 08.07.1980, the same benefits can be extended to the other persons, who are working.
20.The Government considered the recommendation positively and issued G.O.(Ms)No.64, dated 08.03.1999, subject to two conditions. The Department was directed to prepare a statewide seniority list showing the dates on which the respective Plot Watchers entered service as daily wage employees. Based on the said decision, insofar as the writ petitioners are concerned, the Government took a decision to bring them into regular time scale of pay vide G.O.(Ms)No.95, dated 07.08.2009. Therefore, it has to be seen that on the relevant date, namely 07.08.2009, whether the writ petitioners were entitled to count 50% of their past services as daily wage earners.
21.The appellants seek to non-suit the writ petitioners by referring to the Proviso in Rule 11(4) which states that Rule 11(4) of the Rules shall not apply to Government servants appointed on or after 01.04.2003, to services and posts in connection with the affairs of the State which are borne on pensionable establishes, whether temporary or permanent.
22.Rule 11(4) of the Tamil Nadu Pension Rules was introduced vide amendment to the Rules by notification in G.O.No.41, dated 09.02.2010. The Rule amended as on 09.02.2010 was that half of the service rendered under the State Government in non-provincialised service, consolidated pay, honorarium or daily wages basis on or after 01.01.1961 in respect of the Government employees absorbed in regular service before 01.04.2003 shall be counted for retirement benefits along with regular service subject to the condition that the service rendered shall be on consolidated pay, honorarium or daily wages paid on monthly basis and subsequently absorbed in regular service under the State Government.
23.The said amendment was given effect to only on 09.02.2010, much after the writ petitioners were brought into regular time scale of pay w.e.f. 07.08.2009. Therefore, by virtue of the amendment brought about by notification in G.O.No.41, dated 09.02.2010, the benefits which shall accrue to the writ petitioners, cannot be denied. Furthermore, Rule 11(4) of the Tamil Nadu Pension Rules, was introduced for the first time on 25.08.2009, vide G.O.No.408, which prescribed the cut-off date as 01.04.2003.
24.The validity of fixing such a cut-off date was the subject matter of consideration in the case of P.Chinniyan v. State of Tamil Nadu rep. by its Secretary to Government, Forest and Environment (FR-2) Department, Chennai ? 600 009 and Others reported in (2014)6 MLJ 316 and the Court held that the prescription of cut-off date as 01.04.2003 for absorption into regular service under Rule 11(4) to count half of the service rendered prior to absorption has no rational basis and the same is arbitrary and violative of Article 14 of the Constitution of India.
25.It was further held that Rule 11(4) is totally redundant in view of Rule 11(2), which does not prescribe any cut-off date as to absorption into regular service. Therefore, it was held that the benefits given under Rule 11(2) cannot be deprived and taken away by Rule 11(4) and thus the cut-off date of absorption as 01.04.2003 prescribed in Rule 11(4) should be ignored, otherwise it will lead to grave injustice. The Court took note of the facts of the said case, where the petitioner therein was working on daily wages from 1967 till 2003 and when he was absorbed as a Mali, he has served for more than 36 years before his absorption in regular service. The said decision in the case of B.Chinnaiyan was followed in the cases of W.P.Nos.21355 and 21356 of 2017, dated 08.09.2017. In the said decision, reference was made to the decision of the Hon'ble Division Bench in the case of Union of India v. K.Punniyakottai reported in 2014 (2) CTC 777, where more or less an identical case was considered arising under the CCS (Pension) Rules, 1972 in respect of the employees of the Central Government. Therefore, the Court concluded that 50% of the services rendered by the employee on daily wages should be considered for computing total length of service.
26.The two Division Benches in the cases of the State of Tamil Nadu rep. by its Secretary to Government, (FR-2) Forest and Environment Department, Fort St. George, Chennai ? 600 009 v. S.Jayaraman [W.A.No.1482 of 2016, dated 22.01.2018] and Government of Tamil Nadu rep. by its Secretary, Environment and Forest Department, Fort St. George, Chennai ? 600 009 v. S.Thillai Govindan [W.A.No.1733 of 2017, dated 13.02.2018] took note of the decision in the case of B.Chinnaiyan, wherein the cut-off date was quashed, dismissing the appeals filed by the Government. Thus, the decision in the case of B.Chinnaiyan has received the seal of approval of the Hon'ble Division Benches. Thus, in the present factual position, whether the appellants are justified in contending that the earlier Judgments are not binding upon them, despite most of them having been implemented by the appellants.
27.In our considered view, the stand taken by the appellants is wholly unsustainable as the Special Leave Petitions filed against some of the decisions of the Hon'ble Division Bench was not dismissed in limini, but were dismissed on the ground that there were no merits in the appeal. Therefore, the order passed by the Hon'ble Supreme Court has assigned reasons and it is not a dismissal of a Special Leave Petition simpliciter. Therefore, the decisions bind the Government and consequently, the decisions relied on by the learned Special Government Pleader in the cases of Harpal Kaur Chahal (Smt) v. Director, Punjab Instructions, Punjab and Another reported in 1995 Supp (4) SCC 706 and Col.B.J.Akkara (Retd.) v. Government of India and Others reported in (2006)11 SCC 709 are distinguishable on facts.
28.The Judgment of the Division Bench in the case of Principal Secretary, Social Welfare and Nutritious Meal Programme Department, Fort. St. George, Chennai and Others v. M.Palanikani [W.A(MD)No.587 of 2014, etc. batch, dated 03.12.2014] does not render any support to the case of the appellants, as the said case arose out of an appointment to the posts of Teachers/Supervisor Grade II and Rural Welfare Officers from those who were functioning as Noon Meal Organisers in Schools as well as Child Welfare Organizers in Integrated Child Development Scheme (ICDS). Thus, the appointment in those cases, were fresh appointment to a different department, unlike the case on hand. Further, the cases on hand are not cases seeking retrospective regularisation, as sought for in the case of the State of Tamil Nadu, rep. by the Secretary, Department of Health and Family Welfare, Fort St. George, Chennai and Others v. T.Gopal and Others reported in 2016 Writ L.R. 1160.
29.As noticed above, the decision to bring the writ petitioners into regular time scale of pay, was taken in the year 1999 and the writ petitioners were extended the benefits in the year 2009. By then, several of them, had completed more than 30 years of service, as daily wagers. The past service was reckoned for the purpose of justifying their absorption into regular time scale of pay. Therefore, it will be a misnomer to state that the appointments made to the post of Forest Watchers is a fresh appointment. The stand taken by the appellants in this regard is to be rejected by merely referring to the preamble portion of G.O.(Ms)No.64, dated 08.03.1999 and G.O.(Ms)No.95, dated 07.08.2009. Therefore, the said contention raised by the appellants required to be outrightly rejected.
30.There can be no denying the fact that the appellants themselves have implemented various decisions of the Division Benches, in some of which, no appeals were preferred to the Hon'ble Supreme Court. Therefore, now to take a different stand in the present appeals as well as writ petitions would impermissible and a situation cannot be allowed to prevail causing discrimination between similarly placed persons. Thus, in the facts and circumstances of the case and in the light of the above discussion, we find that the State has not made any grounds to interfere with the orders passed in the writ petitions and therefore, the writ appeals are liable to be dismissed and the similar writ petitions are liable to be allowed.
31.In the result,
(i)W.A(MD)Nos.51 of 2018, 1431 and 1432 of 2017 are dismissed, confirming the orders passed in W.P(MD)Nos.22833 of 2016, 15903 of 2012 and 22832 of 2016. No costs. Consequently, connected C.M.P(MD)No.262 of 2018, 10923 and 10927 of 2017 are dismissed.
(ii)All other writ petitions filed by the Plot Watchers are allowed, as prayed for. No costs. Consequently, connected W.M.P(MD)Nos.4753 and 4754 of 2018 are closed.
(iii)The appellants/respondents are directed to verify the service particulars of all the writ petitioners and count 50% of the services rendered by them on temporary basis and consequently refix their pension within a period of four months from the date of receipt of a copy of this Judgment/ order.
(iv)In case, where the petitioners/employees had died, the benefit shall accrue to their legal heirs and the payment shall be effected in the name of one of the legal heirs after obtaining proper authorisation from the other legal heirs.
(v)So far as W.P(MD)No.6878 of 2017 is concerned, though the petitioner seeks for promotion to the post of Plot Watcher, the same is a misnomer as it is not a promotion, but absorption in the post of Forest Watcher. Therefore, whatever the relief granted to the other petitioners, shall enure in favour of this petitioner also and the writ petition stands disposed of accordingly. No costs.
(vi)In W.P(MD)No.22510 of 2015, apart from seeking for regularisation of the services by counting 50% of the services rendered as Plot Watcher, the petitioner seeks for pensionary benefits also. This Court has directed that the benefit of 50% of the services should be reckoned, while calculating the length of service. Thus, if the petitioner has attained the age of superannuation, it goes without saying that consequential revision in pensionary benefits are required to be settled and the writ petition stands disposed of accordingly. No costs.
To
1.The Principal Secretary to Government, Forest and Environment Department, Government of Tamil Nadu, Fort St. George, Chennai ? 9.
2.The Principal Chief Conservator of Forests, Panagal Buildings, Saidapet, Chennai ? 15.
3.The Conservator of Forest, Megamalai Forest Division, Theni.
4.The District Forest Officer, Madurai Division, Madurai.
5.The Principal Accountant General of Tamil Nadu, Office of the Accountant General, Teynampet, Chennai ? 18.
.