Madras High Court
The Secretary To Government vs R.Baskaradoss on 27 March, 2014
Bench: N.Paul Vasanthakumar, M.Sathyanarayanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 27-3-2014 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR and The Honourable Mr.Justice M.SATHYANARAYANAN Writ Appeal No.1122 of 2013 and M.P.Nos.1 of 2013 & 1 of 2014 1.The Secretary to Government, Planning, Development & Special Initiatives Department, Secretariat, Fort St. George, Chennai 9. 2.The Director, Evaluation & Applied Research Department, 3rd Floor, Kuralagam, Chennai 600 108. ... Appellants vs. R.Baskaradoss ... Respondents Writ appeal is preferred under Clause 15 of the Letters Patent against the order dated 30.3.2011made in W.P.No.24124 of 2008. For Appellants : Mr.P.H.Arvind Pandian Addl. Advocate General assisted by Mr.V.Subbiah Spl. Government Pleader For Respondent : Mrs.D.Nagasaila ***** JUDGMENT
(Judgment of the Court was made by M.SATHYANARAYANAN, J.) The official respondents in W.P.No.24124 of 2008 are the appellants.
2. The respondent herein filed W.P.No.24124 of 2008 contending among other things that he was appointed as an Investigator on a consolidated wage in the services of the 1st appellant department on 23.7.1990 and for such appointment, his name was sponsored by the Employment Exchange and he has also undergone proper selection process prepared to the said appointment. After appointment, the respondent was paid consolidated wage of Rs.4500/- per month.
3. It is the case of the respondent herein that 2nd appellant has sent a proposal dated 14.2.2006 to the 1st appellant, wherein it was pointed out that the respondent and other Investigators have rendered excellent services to the Government and their long years of experience was an asset to the department. The said fact has been taken into consideration and, G.O.Ms.No.68 Planning, Development and Special Initiatives (ST2&E) Department came to be passed on 04.5.2007 wherein 15 Investigators, including the respondent herein were appointed on temporary basis with effect from 04.5.2007 and brought on to a pay scale of Rs.4000 100 6000. It is also made clear in the said G.O. that in order to avoid additional financial burden to the Government, the existing vacant posts of research assistants were kept in abeyance and in that place the 15 Investigators, including the respondent herein have to be utilised, as they were in service for a long number of years, were appointed on a temporary basis. The services of the respondent was regularised by the order dated 06.5.2008 with effect from 04.5.2007. The respondent herein retired from service on 31.7.2008 and according to him, he had put in 17 years and 10 months of service and that the service ought to have been regularised from the date of his initial appointment.
4. The respondent in this regard, has submitted a representation dated 06.2.2008, praying for making provisions for monthly benefit scheme and other retirement benefits. The claim was made by the respondent on the ground that the 2nd appellant department is a pensionable establishment and the post of Investigator is a pensionable post and as such, he is entitled to be conferred with such benefits.
5. The 2nd appellant in its Proceedings in Na.Ka.1933/E&AR/A2/06, dated 05.5.2008 has stated that the services of Investigators, including the respondent herein were regularised with effect from 04.5.2007 and feeling aggrieved by the same, the respondent herein came forward to file writ petition for quashment of the said order with a further direction, directing the appellants herein to regularise the services of the respondent herein with effect from 23.7.1990 and to sanction pension, gratuity and other terminal benefits with interest with effect from 31.07.2008.
6. The appellants have filed their counter-affidavit, stating among other things that the respondent herein has entered into time scale only on 04.5.2007 and after completion of one year of service, his service was regularised with effect from 04.5.2007 and that the respondent was on temporary duty, that too for short intervals with several breaks in between his previous services and therefore, he is not eligible to get regularised the old service with effect from 1990 onwards and that he has also retired from service on 31.7.2008. It is further contended that while the respondent accepting the conditions and came to be appointed afresh as Investigator and that the petitioner has not continuously served for 17 years and 10 months without break of service. The appellants have also placed reliance upon Rule 12 of the Tamil Nadu Pension Rules, 1978 and says since the respondent has not put in the qualified service for getting pension, his claim is unsustainable and therefore, prayed for dismissal of the writ petition.
7. The learned Single Judge elaborately considered the rival submissions and also gone through the materials placed on record, found that the services of 14 Investigators have been regularised and except the respondent and one another person, other persons had more number of years of service and since the respondent and another person have got only a less number of years of service, they are not eligible for pensionary benefits, either under the old scheme or under the new scheme.
8. The learned Single Judge after taking into consideration the judgment of the Hon'ble Supreme Court of India, reported in (1984) 4 SCC 329 [G.P.Doval v. Government of Uttar Pradesh] and (2010) 6 SCC 791 [S.Sumnyan and others v. Limi Niri and others], held that by applying the principles enunciated in the above cited judgments, the appellants can consider the case of the respondent/writ petitioner, by taking into account the long number of years of service put in by him atleast for grant of pensionary benefits. The learned Single Judge has also placed reliance upon the judgment rendered by the Division Bench of this Court, reported in CDJ 2011 MHC 36 [S.Malligeswari v. The State of Tamil Nadu and others] wherein this Court has directed the respondents therein to count the earlier service of the petitioner therein for the purpose of pension, taking into account the new pension scheme of the Government viz., the Contributory Pension Scheme from 01.4.2003. Similar is the view of the learned Judge in yet another judgment, reported in 2005 (1) CTC 488 [Indian Council of Medical Research and others v. K.Rajalakshmi and another].
9. The learned Single Judge has taken into consideration the fact that except the respondent herein and another one person, other 13 persons whose services came to be regularised and had been conferred pensionary benefits and, further the learned Single Judge, in the circumstances and peculiar facts, has directed the 1st appellant herein to consider the claim of the respondent herein, in the light of the above said legal position and pass orders for grant of pension alone within a period of twelve weeks from the date of receipt of a copy of the order and feeling aggrieved, the appellants/official respondents have filed this appeal.
10. Subsequent to the order passed in W.P.No.24124 of 2008, dated 30.3.2011, the 1st appellant has also passed G.O.Ms.No.245 Planning, Development & Special Initiatives (ST.2&E) Department, dated 23.12.2011 stating that the request made by the respondent herein cannot be granted, as he was not in service and during which Government had not established or created any post of Investigator in Department of Evaluation and Applied Research.
11. It is to be pointed out at this juncture that as against the impugned order passed in the writ petition, the official respondents have filed this writ appeal and G.O.Ms.No.245 dated 23.12.2011 came to be passed by the 1st appellant subsequent to the disposal of the writ petition and the said Government Order is also sought to be justified by Mr.P.H.Arvind Pandian, the learned Additional Advocate General appearing for the appellants and therefore, this Court constrained to dispose of this writ appeal on merits.
12. The following facts are not in dispute. The respondent herein was appointed as an Investigator on consolidated wage in the services of the 1st appellant department on 10.7.1990 and as per the own admission of the appellants department that respondent's name was sponsored through Employment Exchange and also underwent proper selection process and initially, he was appointed on a consolidated wage of Rs.4,500/- per month and the said pay was periodically increased.
13. The 1st appellant has issued G.O.Ms.No.68 dated 04.5.2007, based on the recommendation of the 2nd respondent in Letter No.1933/E&AR/A2/2006 dated 15.12.2006 and it is relevant to extract the following portion in the said Government Order:-
"2. The Director, Evaluation and Applied Research has stated that the 15 Investigators employed in Evaluation and Applied Research Department are initially paid consolidated wage of Rs.500/- per month which was gradually increased to Rs.4500/- p.m. and they are all having required educational qualification and employed through Employment Exchange. They are all involved satisfactorily in the collection of basic data from the headquarters, collection of primary data from the beneficiaries, data entry, tabulation, assisting the process of inspection report. The Director of Evaluation and Applied Research has stated that they have worked in Evaluation and Applied Research Department for the period of 6 years to 25 years.
3. Majority of the Investigators are more than 40 years old and hence they are not eligible for other Government service. They are all married and having children and also living with their aged parents and are under compulsion to send their wards to the schools and colleges."
14. The 1st appellant, after taking note of the hard and sincere service rendered by the respondent herein and the other persons, had passed the order for regularisation of service and also further ordered that the Investigators are to be brought under Contributory Pension Scheme. In terms of the said Government Order, the services of the respondent were regularised with effect from 04.5.2007 and within a short span of time, he attained the age of superannuation on 31.7.2008.
15. It is the submission of the learned Additional Advocate General appearing for the appellants that since the respondent had put in less qualifying service, his plea of pension benefits, cannot be considered and in fact, his request was also considered and it was rejected by the 1st appellant by passing G.O.Ms.No.245 dated 23.12.2011 and in the absence of any statutory rules, the respondent is not entitled to confer with pensionary benefits and it is further contended that admittedly, with breaks only, the services of the respondent were utilised on temporary benefits, which came to be regularised and on that ground also, the respondent herein is not entitled the relief as sought for.
16. Per contra, Mrs.D.Nagasaila, the learned counsel appearing for the respondent would contend that the so called break in service are artificial breaks and the respondent/writ petitioner had rendered total service of 16 years, 9 months and 11 days and also drawn the attention of this Court to G.O.Ms.No.68 dated 04.5.2007, particularly Paragraphs 2 and 3 wherein it is stated that the sincere service rendered by the respondent herein and the other person, was the basis for regularisation of the services.
17. The learned counsel appearing for the respondent has drawn the attention of this Court to Chapter III, Section 11 (2) and Chapter VI, Section 43 (3) of the Tamil Nadu Pension Rules, 1978 and would submit that if half of the service from 10.7.1990 to 04.5.2007 is calculated, it comes to 8 years, 4 months and 21 days and if the regular service of 1 year, 2 months and 28 days is taken into account, it comes to 9 years, 7 months and 17 days and though it is less than 10 years, it can be rounded of in terms of Section 43(3) of the Tamil Nadu Pension Rules, 1978. The learned counsel appearing for the respondent also placed reliance upon the judgment rendered by the Division Bench of this Court, dated 06.12.2013 made in W.P.No.29896 of 2013 (in which one of us N.P.V.,J. is a party).
18. This Court paid the best attention to the rival submissions and also perused the materials placed before it and also perused the unreported judgment dated 6.12.2013 made in W.P.No.29896 of 2013 (Union of India, rep. by the Director General of Posts, Dak Bhawan, Sansad Marg, New Delhi 110 001 and others v. P.Sevakan and another).
19. It is an uncontroverted fact that the 1st appellant while making recommendation for regularisation of 15 Investigators, including the respondent herein, their valuable service was also taken into account in Paragraphs 2 and 3 of the G.O.Ms.No.68 dated 04.5.2007 and accordingly, their services were regularised with effect from 04.5.2007. It is also to be pointed out at this juncture that the said Government Order makes it clear that the Investigators are brought under Contributory Pension Scheme.
20. Unfortunately, in so far as, the respondent herein is concerned, he has attained the age of superannuation on 31.7.2008 itself and therefore, the benefits of the said Government Order could not be applicable to him. The fact remains that if half of the temporary service on consolidated wage plus the regular service of 1 year, 2 months and 28 days are taken into consideration, then the respondent had put in 9 years, 7 months and 17 days of service.
21. In an unreported judgment dated 06.12.2013 made in W.P.No.29896 of 2013, as stated supra, the Division Bench of this Court, exhaustively considered the said issue and, it is useful and relevant to extract Paragraph 8 to 11 in the said judgment:-
"8.The learned counsel for the first respondent also relied on the judgment of the Division Bench of this Court made in Writ Petition No.45465 of 2002 dated 4.10.2007 (Union of India, rep. by the Secretary, Dept. of Posts, Dak Bhawan, New Delhi 110 001 v. M.R.Palanisamy), wherein in similar issue was raised by an E.D.Staff, who served for 29 years before his permanent absorption as Group "D" staff and he was ordered to be granted pension treating the person as completed 10 years of qualifying service, though he was having a regular service of 9 years, 3 months and 29 days, with reference to the E.D. Staff service. The said judgment was challenged before the Hon'ble Supreme Court in SLP No.13829 of 2008 and the Hon'ble Supreme Court also dismissed the Special Leave Petition on 17.10.2008. Thereafter, the very same Department sanctioned pension to the said person, viz., M.R.Palanisamy by order dated 9.10.2009.
9. Even though the order of the Division Bench in Writ Petition No.45465 of 2002 dated 4.10.2007 restricted the relief only to the first respondent in the said Writ Petition, another Division Bench of this Court in Writ Petition No.22833 of 2010 (T.Jayaraman v. The Post Master General, Central Region, T.N.Circle, Trichy and others) noticing the similar set of facts allowed the Writ Petition by order dated 10.11.2010 noticing the earlier order, which was confirmed by the Supreme Court and which was also implemented by the Department.
10. Again, in the order dated 14.2.2013 passed by this Court in Writ Petition No.22496 of 2009 (Union of India, rep. by the Secretary, Department of Posts, Dak Bhavan, New Delhi 110 001 and others v. G.Thulasidasan), similarly placed person was ordered to be granted pension, considering the long number of years of service as E.D. staff , though the person was not having ten years of completed pensionable service.
11. A Division Bench of Karnataka High Court by order dated 25.3.2013 in Writ Petition No.72872 of 2012 (S-CAT) (Union of India, rep. by the Secretary, Department of Posts, Dak Bhavan, New Delhi 110 001 and others v. B.V.Dambal) also passed similar order."
22. In the considered opinion of this Court, the ratio laid down in the above cited decision is ipso facto applicable to facts of the present case. Though it was under an analogous scheme, namely, Contributory Pension Scheme under Central Civil Services (Pension) Rules. The respondent herein had put in 9 years, 7 months and 17 days of service and therefore, the said service is to be rounded of to 10 years and in that event, the new pension scheme will not apply and consequently, the respondent herein is entitled to the relief as prayed for in the writ petition.
23. As already pointed out, inspite of the fact that the request made by the respondent herein came to be rejected in G.O.Ms.No.245, dated 23.12.2013, the learned Additional Advocate General insisted this Court to dispose of this appeal on merits and therefore, the order which came to be passed subsequent to the disposal of the writ petition, cannot be put against the respondent/writ petitioner.
24. In the light of the reasons assigned above, this Court is of the considered view that there are no merits in this writ appeal and it deserves for dismissal and accordingly dismissed. No costs. The appellants are directed to sanction pension and other consequential benefits to the respondent/writ petitioner from 01.8.2008 onwards, with arrears, within a period of twelve weeks from the date of receipt of a copy of this judgment. Consequently, M.P.No.1 of 2013 and M.P.No.1 of 2014 are closed.
(N.P.V., J.) (M.S.N., J.)
27.03.2014
Index : Yes/No
Internet : Yes/No
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N.PAUL VASANTHAKUMAR,J
and
M.SATHYANARAYANAN,J
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Judgment in
W.A.No.1122 of 2013
27.3.2014