Madras High Court
Ramani vs The State Of Tamilnadu on 14 December, 2012
Author: K.N.Basha
Bench: K.N.Basha
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.12.2012 CORAM: THE HONOURABLE MR. JUSTICE K.N.BASHA W.P.No.25542 of 2011 Ramani .. Petitioner Vs. 1.The State of Tamilnadu, Rep. By its Secretary to Government, Public Works Department, Fort St.George, Chennai-9. 2.The Chief Engineer (in General) Public Works Department, Chepauk, Chennai-5. 3.The Executive Engineer, Public Works Department, Building Constructions and Maintenance, Thiruvallur Division, Thiruvallur District. 4.The Assistant Executive Engineer, Public Works Department, Building Constructions and Maintenance Sub-Division, Poonamallee, Thiruvallur District. 5.The Assistant Executive Engineer, Public Works Department, Building Constructions and Maintenance Sub-Division, Ponneri Taluk, Thiruvallur District. .. Respondents Prayer: Writ petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus directing the respondents to regularize the service of the petitioner's husband namely J.Manoharan who died on 30.03.2010 while he was in service, pursuant to the proceedings of the third respondent in his letter in Ka.No.Ni.E.2/1475/2002-3/Thina Cooli Paniyalar dated 19.05.2003 and sanction all the consequential monetary benefits including the Family Pension to the petitioner. For Petitioner : M/s.A.Ramalingam For Respondents : Mr.K.Karthikeyan, Government Advocate O R D E R
The petitioner has come forward with this petition seeking for the relief of direction to the respondents to regularize the service of the petitioner's husband namely J.Manoharan who died on 30.03.2010 while he was in service, pursuant to the proceedings of the third respondent in his letter in Ka.No.Ni.E.2/1475/2002-3/Thina Cooli Paniyalar dated 19.05.2003 and sanction all the consequential monetary benefits including the Family Pension to the petitioner.
2. The learned counsel for the petitioner submitted that though the petitioner has come forward with a larger prayer seeking the relief of regularization of the services of the petitioner's husband, the petitioner has confined her prayer only to the extent of granting family pension to the petitioner. It is submitted that the petitioner's husband, namely, J.Manoharan, was working as Mazdoor (NMR-Non Muster Roll) on daily wages basis since 1973 in Public Works Department and he died on 30.03.2010 and as such, on the death of her husband, the petitioner is entitled to receive family pension. The learned counsel for the petitioner has also placed reliance on an unreported decision of this Court dated 18.07.2007 passed in W.P.Nos.15258 and 15468/2006 [R.Subramanian and another v. The Government of Tamil Nadu, Revenue Department, Fort St.George, Chennai and another]. It is contended that the petitioner has also preferred representations dated 24.05.2010, 15.12.2010 and lastly on 27.06.2011 seeking the relief of family pension, but no action taken so far.
3. Heard Mr.K.Karthikeyan, learned Government Advocate on the submissions made by the learned counsel for the petitioner. It is submitted that already a counter affidavit has been filed by the respondents. It is contended that the petitioner's husband was employed only from the year 1982 and not from the year 1973 as claimed by the petitioner. It is further contended that by computing the service rendered by the petitioner's husband, the respondents would consider the petitioner's representation. It is also contended that the petitioner is not eligible to get family pension on the ground that the petitioner's husband is not a government servant as he was working only on temporary basis on daily wages in the Public Works Department.
4. This Court carefully considered the submissions made by both sides and perused the entire materials available on record including the affidavit filed by the petitioner and the counter filed by the respondents.
5. At the outset, it is to be stated that admittedly the petitioner's husband, namely, J.Manoharan was working in the Public Works Department on daily wages basis. It is seen that the petitioner claimed that the petitioner's husband was working from the year 1973, but it is refuted by the respondents to the effect that he was working only from the year 1982. However, the learned counsel for the petitioner placed reliance on the proceedings dated 05.12.1982 of the Executive Engineer, Public Works Department, wherein the name of the petitioner's husband was mentioned in Sl.No.25 stating that he was working as Fitter Grade-II from the year 1973. Therefore, it is crystal clear that the petitioner's husband was working in the said capacity on daily wages for a period of more than 30 years. Even assuming that the petitioner's husband was working only from the year 1982 and he died in the year 2010, he had worked for more than 28 years and as such, this Court is of the considered view that family pension cannot be denied to the petitioner.
6. The learned counsel for the petitioner has rightly placed reliance on an unreported decision of this Court dated 18.07.2007 passed in W.P.Nos.15258 and 15468/2006 [R.Subramanian and another v. The Government of Tamil Nadu, Revenue Department, Fort St.George, Chennai and another], wherein the main point which was considered is whether the petitioners in that matter are entitled to get family pension after retirement even though their services are not regularized when having put in more than 30 years of service in the revenue department. The relevant portions of the said decision are hereunder:
7. The point in issue is whether the petitioners are entitled to get sanction of pension after retirement even though their services are not regularized, when they have put in more than 30 years of service in the Revenue Department.
8. The facts are not in dispute. Rule 11 of the Tamil Nadu Pension Rules, 1978, clearly states that a Government Servant retiring on or after the 1st October, 1969, with temporary or officiating service in a pensionable post whether rendered in a regular capacity or not shall count in full as qualifying service even it is not followed by confirmation.
9. It is not in dispute that the petitioners' services, even though were not regularised, they were in continuous service in pensionable posts and retired on superannuation. As per Rule 21 of the Tamil Nadu Pension Rules, 1978, if a Government Servant is dismissed or removed from service, then his past service will be forfeited. Thus, under the Tamil Nadu Pension Rules, 1978, it is clear that even if a Government servant was appointed temporarily and was holding the post for more than ten years in a pensionable establishment, pension is bound to be sanctioned, provided he retired after 1.10.1969.
10. The Honourable Supreme Court in the decision reported in (1995) 6 SCC 227 = 1996 (1) LLJ 241 (A.P. Srivastava v. Union of India) considered the eligibility to get pension by a temporary Government Servant, who retired on reaching superannuation. In paragraphs 5 and 6, the Honourable Supreme Court held as follows, 5.In view of the rival submissions at the bar, the question for consideration is whether there is any rationale behind the rule disentitling pension to a government servant when an order of compulsory retirement is passed in exercise of power under Rule 56(j) of the Fundamental Rules? As has been noticed earlier after completion of a particular period of service the employer has a right to compulsorily retire the employee in public interest and similarly the employee has a right to voluntarily retire on giving three months notice. It has been held by this Court time and again that the pension is not a charity or bounty nor is it a conditional payment solely dependent on the sweet will of the employer. It is earned for rendering a long service and is often described as deferred portion of payment for past services. It is in fact in the nature of social security plan provided for a superannuated government servant. If a temporary government servant who has rendered 20 years of service, is entitled to pension, if he voluntarily retires, there is no justification for denying the right to him when he is required to retire by the employer in the public interest. In other words, the condition precedent for being entitled to pension in case of a temporary government servant is rendering of 20 years of service.
6. In view of the legal position that an order of compulsory retirement is not a punishment and pension is a right of the employee for services rendered, we see no justification for denying such right to a temporary government servant merely on the ground that he was required to retire by the employer in exercise of power under Rule 56(j) of the Fundamental Rules. In our considered opinion a temporary government servant would be entitled to pension after he has completed more than 20 years of service even if he is required to retire by the employer in exercise of power under Rule 56(j) of the Fundamental Rules.
11. The sanction of pension to a retired Government Servant is not a charity and it is given as the reward for the past services rendered, as held by the Honourable Supreme Court in the following decisions.
(a) (1983) 1 SCC 305 (D.S. Nakara v. Union of India, (1983) 1 SCC 305, (para 19 and 20).
19. What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition.
20. The antequated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar (1971) 2 SCC 330 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyones discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to th at effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh,(1976) 2 SCC 1." In the said Judgment, the Supreme Court followed its earlier decisions reported in (1971) 2 SCC 330 (Deokinandan Prasad v. State of Bihar) and (1976) 2 SCC 1 (State of Punjab v. Iqbal Singh).
(b) 1992 Supp (1) SCC 664 (All India Reserve Bank Retired Officers Assn. v. Union of India) (para 5) 5. The concept of pension is now well known and has been clarified by this Court time and again. It is not a charity or bounty nor is it gratuitous payment solely dependent on the whim or sweet will of the employer. It is earned for rendering long service and is often described as deferred portion of compensation for past service. It is in fact in the nature of a social security plan to provide for the December of life of a superannuated employee. Such social security plans are consistent with the socio-economic requirements of the Constitution when the employer is a State within the meaning of Article 12 of the Constitution. All the Bank employees who had retired prior to November 1, 1990 were governed by the CPF scheme. However, by the introduction of the pension scheme under the Regulations those employees who retired on or after January 1, 1986 have been given an option to switch over to the pension scheme provided they refund the employers contribution to the CPF scheme together with interest thereon and further agree to pay interest at six per cent per annum from the date of receipt of the fund amount on superannuation till the repayment thereof. The grievance of the petitioners is that all employees who were governed by the CPF scheme on the date of their superannuation constituted a homogeneous class and the pension scheme introduced under the Regulations seeks to divide them between those who retired on or before December 31, 1985 and those who retired on and after January 1, 1986; to the latter the benefit of the pension scheme is extended by option while to the former that benefit is denied altogether. This artificial division between members belonging to the same group, contend the petitioners, is a flagrant violation of Article 14 of the Constitution as held in Nakara case.
(c) State of Punjab v. Justice S.S. Dewan, (1997) 4 SCC 569 = JT 1997 (5) SC 26, (para 8) 8. Conceptually, pension is a reward for past service. It is determined on the basis of length of service and last pay drawn. Length of service is determinative of eligibility and the quantum of pension. The formula adopted for determining last average emoluments drawn has an impact on the quantum of pension. In D.S. Nakara case the change in the formula of determining average emoluments by reducing 36 months service to 10 months service as measure of pension, made with a view to giving a higher average, was regarded as liberalisation or upward revision of the existing pension scheme. On the basis of the same reasoning it may be said that any modification with respect to the other determinative factor, namely, qualifying service made with a view to make it more beneficial in terms of quantum of pension can also be regarded a s liberalisation or upward revision of the existing pension scheme. If, however, the change is not confined to the period of service but extends or relates to a period anterior to the joining of service then it would assume a different character. Then it is not liberalisation of the existing scheme but introduction of a new retiral benefit. What has been done by amending Rule 16 is to make the period of practice at the Bar, which was otherwise irrelevant for determining the qualifying service, also relevant for that purpose. It is a new concept and a new retiral benefit. The object of the amendment does not appear to be to go for liberalisation. The purpose for which it appears to have been made is to make it more attractive for those who are already in service so that they may not leave it and for new entrants so that they may be tempted to join it. Though Rule 16 does not specifically state that the amended rule will apply only to those who retired after 22-2-1990, the intention behind it clearly appears to be to extend the new benefit to those only who retired after that date. For these reasons the principle laid down in D.S. Nakara case that if pensioners form a class computation of their pension cannot be by different formula affording unequal treatment merely on the ground that some retired earlier and some retired later, will have no application to a case of this type. Therefore, on both the grounds the High Court was in error in applying the ratio of the decision in D.S.Nakara case to this case. As rightly contended on behalf of the State, benefit of the amendment would be available to only those direct recruits who retired after it has come into force.
(d) In the Division Bench decision reported in 2007 (2) LLN 169 (C. Damodarasamy v. Government of India), while speaking for the Bench, I had an occasion to deal with similar issue, wherein the Division Bench followed the above cited decisions and ordered to pay pension to a LIC officer.
The principles laid down by the Hon'ble Apex Court and the Division Bench of this Court, as followed and referred in the decision cited supra, are squarely applicable to the facts of the instant case, as in this case also, admittedly, the petitioner's husband J.Manoharan was working for a long period of more than 30 years and for more than 28 years even as per the statement made in the counter and he rendered continuous service to the Public Works Department.
7. Accordingly, this writ petition is disposed of with a direction to the third respondent to consider the representation of the petitioner dated 27.06.2011 in the light of the decision cited supra for sanction of family pension. It is made clear that the said exercise shall be completed within a period of twelve weeks from the date of receipt of a copy of this order. No costs.
jvm To
1.The Secretary to Government, State of Tamilnadu, Public Works Department, Fort St.George, Chennai-9.
2.The Chief Engineer (in General) Public Works Department, Chepauk, Chennai-5.
3.The Executive Engineer, Public Works Department, Building Constructions and Maintenance, Thiruvallur Division, Thiruvallur District.
4.The Assistant Executive Engineer, Public Works Department, Building Constructions and Maintenance Sub-Division, Poonamallee, Thiruvallur District.
5.The Assistant Executive Engineer, Public Works Department, Building Constructions and Maintenance Sub-Division, Ponneri Taluk, Thiruvallur District