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[Cites 3, Cited by 0]

Madras High Court

S.Anbarasu vs The Principal Secretary To Government on 8 July, 2015

Author: D. Hariparanthaman

Bench: D. Hariparanthaman

        

 
IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 08.07.2015

CORAM:

THE HON'BLE MR.JUSTICE D. HARIPARANTHAMAN

W.P.No.20133 of 2015

S.Anbarasu								.. Petitioner

vs.

1. The Principal Secretary to Government
     of Tamil Nadu,
    Social Welfare Department,
    Fort St. George,
    Chennai - 600 009.

2. The Commissioner of Social Welfare,
    Guindy, Chennai  600 032.

3. The Block Development Officer,
    Thruvidaimarudur,
    Thanjavur District.		  				.. Respondents
* * *
PRAYER : Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Mandamus directing the second respondent herein to count 50 % period of service as Balasevika later re-designated as Child Welfare Officer and Anganwadi Worker from 15.08.1972 to 22.05.2007 which period she was working on consolidated pay along with the regular service as Woman Rural Welfare Officer from 23.05.2007 to 30.04.2010 as per G.O.Ms.No.408, dated 25.08.2009 and G.O.Ms.No.6, dated 06.01.2010 and G.O.Rt.No.39, Rural Development, dated 13.06.2011 in the light of ration held in 2007 Writ L.R. 521 and 2012 (3) MLJ 12 and to grant regular pension, gratuity, Encashment of Earned Leave and Leave on private affairs and other terminal benefits by disposing of the petitioner's representation dated 08.04.2015.
* * *
		For Petitioner 	:  	Mr.K.Shanmugam
	
		For  Respondents 	: 	Mr.V.Jayaprakash Narayanan
						Special Govt. Pleader for RR 1 and 2

						Mr.Suryanarayanan for R3


O R D E R

This writ petition is filed seeking a direction to the second respondent herein to count 50% period of service as Balasevika later re-designated as Child Welfare Officer and Anganwadi Worker from 15.08.1972 to 22.05.2007 which period she was working on consolidated pay along with the regular service till her retirement on 30.4.2010 as Woman Rural Welfare Officer.

2.0. The brief facts, that are necessary for the disposal of this writ petition, are as follows :

2.1. One of the well-conceived, well-appreciated, well-followed and popular social measures of the Tamil Nadu Government is the Nutritious Meal Programme. A separate Department named Social Welfare and Nutritious Meal Programme Department is the custodian of this unique and first of its kind Programme in the country.
2.2. The Nutritious Meal Programme is implemented under three major schemes in the State, namely, (i) Puratchi Thalaivar M.G.R. Nutritious Meal Programme (shortly MGR Nutritious Meal Programme), (ii) Integrated Child Development Services (ICDS) Scheme (assisted by the Government of India and the Sweden Government) and (iii) Tamil Nadu Integrated Nutritious Programme (assisted by the World Bank).
2.3. But for this Nutritious Programme, drop outs of children from the Schools due to poverty, could not have been prevented effectively throughout the State of Tamil Nadu. In fact, these Programmes played pivotal role in substantially increasing the Literacy Rate in the Tamil Nadu State.
2.4. Even in the year 2003, there were 83 lakhs beneficiaries in MGR Nutritious Meal Programme alone, particularly, children, more particularly, children studying in Government Schools, Schools run by the local bodies and the Aided Schools, were provided with nutritious meal as Lunch. There were 71,757 centers under this MGR Nutritious Meal Programme functioning under this Scheme alone in the year 2003 itself.
2.5. In MGR Nutritious Meal Programme, Cook Assistant, Cook and Nutritious Meal Organizer are employed in each one of the centers. While no educational qualification is prescribed for Cook Assistant and Cook, a Fail in 10th Standard (SSLC) is prescribed as educational qualification for the post of Nutritious Meal Organizer.
2.6. Thus, a very large number of employees are employed in these noon meal centers in these programmes all over Tamil Nadu as Cook Assistants (Anganwadi Helper Grade II), Noon Meal Cooks (Anganwadi Helper Grade I) and Noon Meal Organisers (Anganwadi Workers) and those centers are providing food to children.
3.1. A meager consolidated pay was given to these employees and no annual increment was provided to them. Later, the Government issued G.O.Ms.No.2, Social Welfare and Nutritious Meal Programme Department, dated 03.01.1996, providing time scale of pay and also Dearness Allowance to them. They were given the scale of pay of Rs.180-5-230-10-380 and Rs.200-5-250-10-400 at that time. Thus, they were given a meager scale of pay with effect from 01.01.1996.

3.2. However, later the Government issued G.O.Ms.No.391, Finance (Salaries) Department, dated 15.09.2008, and granted various scales of pay to the employees in noon-meal centers depending upon the category to which they belong to. As per the said G.O.Ms.No.391, dated 15.09.2008, Cook Assistants were given the scale of pay of Rs.500-10-600-800/-, the Cooks were given the scale of pay of Rs.660-16-810-20-1010/- and the Nutritious Meal Organizers were given the scale of pay of Rs.1300-20-1500-25-2000/-.

3.3. Further, as a one-time measure, the said G.O.Ms.No.391, provided for a Special Pension. Rs.500/- per month for the Cook Assistant, Rs.600/- per month for the Cook and Rs.700/- per month Nutritious Meal Organizer, on their retirement, were provided as special pension. It is stated in G.O.Ms.No.391, that in addition to the amounts, that are paid at the time of retirement, Special Provident Fund-cum-Gratuity would also be paid to them.

3.4. It is also stated in G.O.Ms.No.391, dated 15.09.2008, that a further revision of pay would be granted based on the recommendations of the Official Committee appointed by the Government to give recommendations based on the VI Pay Commission of the Central Government.

3.5. Accordingly, pay revision was given to them vide G.O.Ms.No.234, Finance (Pay Cell) Department, dated 01.06.2009, implementing VI Pay Commission recommendations. The Cook Assistants were given Rs.950-2000 with Grade Pay of Rs.200/-. The Cooks were granted Rs.1300-3000 with Grade Pay of Rs.300/- and the Noon-Meal Organizers were granted 2500-5000 with Grade Pay of Rs.500/-.

4. It is also pertinent to note that though these employees are called permanent Part-Time Employees, according to the learned counsel for the petitioner, they render Full-Time service, since their working hours, as per G.O.Ms.No.58, Social Welfare and Nutritious Meal Programmes Department, dated 13.04.2007, is between 8.00 a.m. and 4.00 p.m. That is, these employees work for 8 hours per day. In fact, the working hours of the teachers as well as the Government servants are less than the working hours prescribed for the employees of the Noon Meal Programmes. Before the issuance of G.O.Ms.No.58, Social Welfare and Nutritious Meal Programme Department, dated 13.04.2007, they worked for 9 hours per day from 7.30 a.m. to 4.30 p.m. Therefore, though they are termed as Part-Time employees in so many Government Orders, according to the learned counsel for the petitioner, they are really employed on Full-Time basis, in view of the working hours prescribed by the Government in the Government Order, referred to above. In my considered view, in view of the working hours prescribed in the said Government Order for the employees in the noon-meal programmes, these employees have to be considered as the employees employed in whole-time employment. It is useful to extract G.O.Ms.No.58, dated 13.04.2007, as hereunder :

Miz khz;g[kpF rK:feyj;Jiw mikr;rh; mth;fs; 2007?2008k; Mz;ow;fhd khdpaf; nfhhpf;ifapd; nghJ. jkpH;ehL rl;lkd;wg; nguitapy; 10/04/2007 md;W. jkpH;ehl;oy; cs;s FHe;ijfs; ika';fspy; gzpg[hpa[k; CHpah;fspd; ntiy neuk; jw;nghJ cs;s Kiwahd fhiy 7/30 kzpKjy; khiy 4/30 tiu vd;wpUg;gij khw;wp fhiy 8 kzpKjy; khiy 4/00 kzptiu vd mikf;fg;gLk; vd;W mwptpj;jhh;fs;/ 2/ mjd;go jkpH;ehl;oy; cs;s xU';fpize;j FHe;ijfs; tsh;r;rp jpl;lj;jpd; fPH; bray;gLk; midj;J FHe;ijfs; ika';fspy; gzpg[hpa[k; CHpah;fspd; ntiy neuk; ,t;thiz btspaplg;gLk; ehs; Kjy; fhiy 8 kzpKjy; khiy 4 kzptiu MFk; vd muR MizapLfpwJ/

5. At this juncture, it is relevant to take note of the fact that though no educational qualification was prescribed to Cook Assistant and Cook and only a fail in SSLC is prescribed for Nutritious Meal Organizer, some of the persons in those posts were in possession of Degree and B.Ed., educational qualification. But, they are very limited in numbers, compared to the total workforce in these schemes. Likewise, some possessed SSLC qualification and they are also not large in numbers, when compared to the total workforce in the programme.

6. However, the employees in these programmes are not regular Government servants and thus they are not paid the scale of pay applicable to regular Government servants and the schemes are non-pensionable establishments and thus they are not paid pension under the Tamil Nadu Pension Rules.

7. The associations, representing these employees, requested the Government, at least, to provide a chance to the qualified persons to get absorbed as Supervisor Grade II and Rural Welfare Officers (Women) that come under the Social Welfare and Nutritious Meal Programme Department, in which, they are employed. According to the employees, the requisite qualification for those posts is a pass in the SSLC and hence, the persons who possess SSLC, could be absorbed, based on their seniority, whenever vacancy, that would arise in those posts. According to them, there are a small number of employees with a pass in SSCLC working in these schemes and they could be absorbed in the posts of Supervisor Grade II and Rural Welfare Officer (Women) in the same Department. According to the learned counsel for the petitioner, these posts, namely, Supervisor Grade II and Rural Welfare Officer (Women), are equivalent to the cadre of Junior Assistant. Their request was conceded and the Government issued appropriate orders in this regard for absorption of the persons possessing qualification for the post of Supervisor Grade II and Rural Welfare Officers (Women).

8. Accordingly, the petitioner was regularized as Rural Welfare Officer (Woman) by the Commissioner of Social Welfare, Chennai, in Se.Mu.Na.Ka.No.17205/Nir.3-2/2007, dated 19.04.2007 and she joined the post on 23.05.2007 FN. The petitioner retired from service on 30.04.2010, on reaching the age of superannuation.

9. Most of the employees who got absorbed like the petitioner had only less than 10 years of service remaining for retirement. Hence, the Associations of these employees made a request to the Government to count 50% of the service rendered in Noon-Meal Schemes along with regular service rendered as Rural Welfare Officer for the purpose of pension.

10.1. The Hon'ble Chief Minister gave an assurance in the Conference held by the Noon Meal Organizers on 2.11.2009 to issue appropriate orders to count 50% of the service rendered in the Schemes along with regular service for the purpose of pension.

10.2. Accordingly, the Government issued G.O.Ms.No.6, Social Welfare and Nutritious Meal Programme Department, dated 06.01.2010. It is useful to extract paragraphs 3 and 4 of the said Government Order, wherein, it is stated about the statement made by the Hon'ble Chief Minister, referred to above :

3/ ,e;epiyapy; rj;Jzt[. FHe;ijfs; ika gzpahsh;fis 21/11/2009 md;W elj;jpa ed;wp mwptpg;g[ khehl;oy; khz;g[kpF Kjiyikr;rh; mth;fs; gpd;tUkhW mwptpg;g[ bra;Js;shh;fs; ?
rj;Jzt[j; jpl;lk; - xU';fpize;j FHe;ijfs; tsh;r;rpj; jpl;lk; Mfpatw;wpy; gzpg[hpe;J Mrphpah;fs;. nkw;ghh;itahsh;fs; epiy?2 kw;Wk; gy;nehf;F Rfhjhu gzpahsh;fshfg; gjtp cah;t[ bgw;wth;fSf;F. rj;Jzt[j; jpl;lk; xU';fpize;j FHe;ijfs; tsh;r;rpj; jpl;lk; Mfpatw;wpy; bjhFg;g{jpaj;jpy; gzpg[hpe;j fhyj;jpy; 50 tpGf;fhL fhyk; Xa;t{jpaj;jpw;F fzf;fpy; vLj;Jf;bfhs;sg;gLk;/ 4/ vdnt khz;g[kpF Kjiyikr;rh; mth;fspd; mwptpg;gpd;go rj;Jzt[j; jpl;lk; - xU';fpize;j FHe;ijfs; tsh;r;rpj; jpl;lk; Mfpatw;wpy; gzpg[hpe;J Mrphpah;fs;. nkw;ghh;itahsh;fs; epiy?2 kw;Wk; gy;nehf;F Rfhjhu gzpahsh;fshfg; gjtp cah;t[ bgw;wth;fSf;F. rj;Jzt[j; jpl;lk; xU';fpize;j FHe;ijfs; tsh;r;rpj; jpl;lk; Mfpatw;wpy; bjhFg;g{jpaj;jpy; gzpg[hpe;j fhyj;jpy; 50 tpGf;fhL fhyk; Xa;t{jpaj;jpw;F fzf;fpy; vLj;Jf;bfhs;s muR MizapLfpwJ/ 10.3. The said G.O.Ms.No.6, dated 06.01.2010 refers to G.O.Ms.No.408, Finance (Pension) Department, dated 25.08.2009, as item No.1 in the reference column and the contents of the G.O.Ms.No.408 was referred to in paragraph 1 of G.O.Ms.No.6, dated 06.01.2010. It is also useful to extract para 1 of G.O.Ms.No.6, Social Welfare and Nutritious Meal Programme Department, dated 06.01.2010 :
nkny xd;wpy; gof;fg;gl;l murhizapy;. tiuaWf;fg;glhj gzp (Non Provincialised Service), bjhFg;g{jpak; (Consolidated Pay), kjpg;g{jpak; (Honorarium) kw;Wk; jpdf;Typ (Daily Wages) mog;gilapy; gzpg[hpe;J. epue;jug; gzpapy; 01/04/2003f;F Kd;dh; <h;f;fg;gl;l midtUf;Fk; bghUe;Jk; tifapy;. mth;fis epue;jukhfg; gzpapy; <h;f;fg;gLtjw;F Kd;. 01/06/1961?f;Fg; gpd; gzpg[hpe;j tiuaWf;fg;glhj gzpf;fhyk; (Non Provincialised Service), bjhFg;g{jpak; (Consolidated Pay), kjpg;g{jpak; (Honorarium) kw;Wk; jpdf;Typ (Daily Wages) mog;gilapyhd bkhj;j gzpf;fhyj;jpy; ghjpia. Rpy epge;jidfSf;F cl;gl;L mth;fsJ Xa;t{jpaj;jpw;;Fj; jFjpahd gzpf;fhyj;Jld; nrh;j;J Xa;t{jpag; gad;fSf;F vLj;Jf;bfhs;s Miz btspaplg;gl;Ls;sJ/ 10.4. G.O.Ms.No.408, dated 25.08.2009, issued by the Finance Department, provides for counting 50% of the Full-Time services rendered on consolidated pay, honourarium or on daily wages basis along with regular service for the purpose of pension, if the employees were brought to regular service before 01.04.2003.
10.5. In fact, the said G.O.Ms.No.408, dated 25.08.2009, was incorporated as Rule 11(4) of the Tamil Nadu Pension Rules.
10.6. It is relevant to note that while G.O.Ms.No.408, dated 25.08.2009 and Rule 11(4) of the Tamil Nadu Pension Rules fixed the cut off date at 01.04.2003, G.O.Ms.No.6, dated 06.01.2010, does not fix the cut off date as 01.04.2003, since the employees covered under G.O.Ms.No.6 got absorbed into regular service only after 01.04.2003, as stated above. That is, as per G.O.Ms.No.6, the employees in the noon-meal schemes, who are absorbed to regular establishment, are granted the benefit of counting 50% of their service in noon-meal schemes with regular service for pension, without any cut off date for absorption into regular service.
10.7. I am of the view that G.O.Ms.No.6, dated 06.01.2010, recognises that the employees in the Noon Meal Schemes are in whole time employment, as G.O.Ms.No.6 refers to G.O.Ms.No.408. At this juncture, it is useful to refer to my view expressed in paragraph 4 of this judgment, wherein, I have held, based on G.O.Ms.No.58, Social Welfare and Nutritious Meal Programme Department, dated 13.04.2007, that these employees shall be termed as Whole Time employees, as they work for 8 hours in a day. In fact, prior to issuance of G.O.Ms.No.58, these employees worked for 9 hours per day, from 7.30 a.m to 4.30 p.m. 10.8. Counting of half of the service along with regular service is permissible only in the case of employees employed on whole time basis before absorption into regular establishment as per the Tamil Nadu Pension Rules. As the employees in the Noon Meal Schemes are on whole time employment, they are entitled to count 50% of their service along with regular service for the purpose of pension, if they are brought to regular establishment.
11.1. Based on G.O.Ms.No.6, Social Welfare and Nutritious Meal Programme Department, dated 06.01.2010, the Director / Commissioner of Social Welfare sent proposals for payment of pension to these employees, who retired as Teachers/Supervisor Grade II/Rural Welfare Officers (Women), by counting 50% of their service in the Noon-Meal Schemes along with regular service. But the proposals were returned by the office of the Principal Accountant General, with objections, that these employees are not entitled to pension, as they were absorbed in regular service after 01.04.2003.

11.2. Hence, some of them filed W.P.(MD)Nos.7070, 7259, 8287 and 8425 of 2011 seeking to quash the objection made by the Principal Accountant General, as the same is contrary to G.O.Ms.No.6, Social Welfare and Nutritious Meal Programme Department, dated 06.01.2010.

11.3. I had an occasion to hear those writ petitions and I allowed those writ petitions on 27.06.2012 by a common order noticing that G.O.Ms.No.6, dated 06.01.2010, nowhere fixes the cut off date as 01.04.2003, though G.O.Ms.No.408, dated 25.08.2009, was referred to in G.O.Ms.No.6, dated 06.01.2010.

11.4. Following my order dated 27.06.2012, referred to above, another learned Single Judge of this Court allowed W.P.(MD)No.5316 OF 2013 on 11.06.2013.

11.5. The learned counsel for the petitioner brought to my notice that the Principal Accountant General sent an Admissibility Report dated 07.02.2013 for authorizing pension, in the case of P.Mary, who is the petitioner in W.P.(MD)No.7070 of 2011, after my judgment dated 27.06.2012, based on G.O., referred to therein and sought to send a revised proposal for authorizing pension.

11.6. It is stated that those employees who got orders from this Court, as stated above, were paid pension, in compliance of the orders of this Court.

12. In those circumstances, after the orders of this Court, referred to above, the Government issued G.O.Ms.No.34, Social Welfare and Nutritious Meal Programme Department, dated 14.03.2013, clarifying G.O.Ms.No.6, dated 06.01.2010 to the effect that the benefit of counting 50% of service rendered in noon-meal schemes along with regular service would be given to those, who got absorbed as Teachers/ Supervisors Grade II/Rural Welfare Officers (Women) before 01.04.2003.

13. A close reading of G.O.Ms.No.34, Social Welfare and Nutritious Meal Programme Department, dated 14.03.2013, makes it clear that the said G.O. was issued to overcome the orders of this Court referred to above. Paragraph 2 of the G.O.Ms.No.34, refers that writ petitions, seeking pension by counting 50% of service rendered in noon meal schemes with regular service, are pending before this Court.

14. Now, the petitioner herein filed this writ petition seeking to count 50% of service in Noon-Meal schemes along with regular service for the purpose of pension.

15.1. The learned Government Advocate placed heavy reliance on the Division Bench judgment of this Court, more particularly, paragraph 25 of the judgment, dated 03.12.2014 in W.A.(MD)Nos.587, 605, 606 and 1024 of 2014 and W.P.(MD)No.12689 of 2014, reversing the common order dated 27.06.2012 in W.P.(MD)No.7070, 7259, 8287 and 8425 of 2011 and the order dated 11.06.2013 in W.P.(MD)No.5316 of 2013.

15.2. The learned Government Advocate also submitted that basing on G.O.Ms.No.34, Social Welfare and Nutritious Meal Programme Department, dated 14.03.2013, the Division Bench rendered the judgment. He further submitted that as the New Pension Scheme (Contributory Pension Scheme  CPS) came into force with effect from 01.04.2003 for the persons, who were recruited afresh in Government service after 01.04.2003, the Division Bench held that the persons recruited after 01.04.2003 is not entitled to pension.

15.3. According to the learned Government Advocate, the writ petitioner came to government service after 01.04.2003 as regular employees. Hence, 50% of service in the noon-meal schemes could not be counted along with regular service for the purpose of pension, as per the Division Bench judgment. According to him, the petitioner is governed by the New Pension Scheme (CPS).

15.4. Therefore, he sought for dismissal of this writ petition.

16.1. On the other hand, the learned counsel for the petitioner also relied on the same Division Bench judgment and more particularly, the same paragraph 25 of the judgment, that was heavily relied on by the learned Government Advocate. The learned counsel for the petitioner submitted that the petitioner herein was absorbed as Rural Welfare Officer (Woman) in the same Department, namely, Social Welfare and Nutritious Meal Programme Department, in which, she was serving in Noon-Meal Schemes with SSLC qualification. According to him, since the Rural Welfare Officers (Women) were simply regularised, based on their seniority, in the same Department considering their qualification, they are entitled to count 50% of service rendered in noon-meal schemes along with regular service for the purpose of pension, even if they were brought to regular service after 01.04.2003, as held in paragraph 25 of the Division Bench Judgment.

16.2. In fact, according to him, the Division Bench recognised the right of such employees and the Division Bench also held that such regularisation could relate back to the original date of appointment for the purpose of pension.

16.3. He submitted that the Rural Welfare Officers (Women), who are granted the benefit of counting 50% of service in the noon-meal schemes as per G.O.Ms.No.6, dated 06.01.2010, were not absorbed pursuant to any written test and they were regularised in the post based on the qualification. Hence, they are entitled to count 50% of their service in Noon Meal Schemes along with regular service, even as per the Division Bench judgment.

17. Furthermore, the learned counsel for the petitioner submitted that the Government by way of G.O.Ms.No.34, Social Welfare and Nutritious Meal Programme Department, dated 14.03.2013, could not mechanically and without application of mind clarify G.O.Ms.No.6, dated 06.01.2010, by stating that the persons, who got absorbed before 01.04.2003 alone, is entitled to the benefit of counting 50% service rendered in the noon-meal schemes along with regular service for the purpose of pension, since the absorption as Rural Welfare Officers (Women) from the employees of the noon meal schemes took place only after 01.04.2003 and the Government was conscious about the same when it issued G.O.Ms.No.6, particularly, based on the statement made by the Hon'ble Chief Minister in the conference organized by the associations of the Noon-Meal Employees. That is why, G.O.Ms.No.6, does not prescribe cut off date as 01.04.2003, since the absorption of noon-meal scheme employees as Teachers/Supervisors Grade II/ Rural Welfare Officers (Women) took place only after 01.04.2003.

18. The learned counsel for the petitioner submitted that the validity of G.O.Ms.No.34, Social Welfare and Nutritious Meal Programme Department, dated 14.03.2013, was not in issue in the Division Bench Judgment dated 03.12.2014 in W.A.(MD)Nos.587 of 2014 etc. batch.

19.1. According to the learned counsel for the petitioner, G.O.Ms.No.408, Finance Department, dated 25.08.2009, and Rule 11(4) of the Tamil Nadu Pension Rules, grant the benefit of counting half of the service rendered in non-provincialised service or consolidated pay or honorarium or daily wage basis, involving whole time employment along with regular service for pension. The learned counsel also submitted that the prescription of cut off date at 01.04.2003 vide G.O.Ms.No.408, Finance Department, dated 25.08.2009, and later incorporating the same in Rule 11(4) of the Tamil Nadu Pension Rules was struck down by this Court in Chinniyan V. State of Tamil Nadu, reported in (2014) 6 MLJ 316, as the same is discriminatory, as the employees in whole time employment on contingent basis and in non-pensionable establishment, on absorption into regular establishment, are given the benefit of counting of 50% of their service along with regular service for pension, in view of Rule 11(2) of the Tamil Nadu Pension Rules.

19.2. Hence, G.O.Ms.No.34 prescribing cut-off date as 01.04.2003 is bad and discriminatory as the Rule 11(2) and 11(4) of the Tamil Nadu Pension Rules red with the judgment in Chinniyan's case provide for counting 50% of service before absorption in regular establishment along with regular service for pension. That is, the Government Order is bad for non-application of mind as well as in view of Rule 11(2) and 11(4) of the Tamil Nadu Pension Rules.

20. Therefore, the issue that arises for consideration in this writ petition is as to whether the petitioner is entitled to count half of the service rendered in Noon-Meal schemes along with regular service as Rural Welfare Officer (Woman) for the purpose of pension.

21. It is not in dispute that the petitioner was regularized as Rural Welfare Officer (Woman) on 19.04.2007 and she joined the said post on 23.05.2007. She retired on 30.04.2010.

22.1. The applicability of the Tamil Nadu Pension Rules is dealt with under Rule 2 of the Tamil Nadu Pension Rules and the said provision states that it shall not apply to the persons in casual and daily rated employment and the persons paid from contingencies etc. are not entitled to pension. Rule 2 of the Tamil Nadu Pension Rules is usefully extracted hereunder :

2. Application  Save as otherwise provided in these rules, these rules shall apply to all Government Servants appointed to services and posts in connection with the affairs of the State which are borne on pensionable establishments whether temporary or permanent, but shall not apply to -
(a) persons in casual an daily rated employment ;
(b) persons paid from contingencies ;
(c) to (f) ...... 22.2. However, Rule 11(2) of the said Rules provides for counting half of the service of the Government servant, who was paid from contingencies, along with regular service for pension, if those persons were brought to regular service subsequently and thereafter retired from service.
23. Furthermore, by way of G.O.Ms.No.283, Finance (Pension) Department, dated 15.04.1996, Rule 11(2) of the Tamil Nadu Pension Rules also provides for counting of half of the service rendered by the State Government employee under non-pensionable establishment for pensionary benefits along with regular service under pensionable establishment, if the service under non-pensionable establishment was on whole time basis. That is, for the persons employed under contingent basis or persons employed in non-pensionable establishment, 50% of such service would be counted along with regular service, if the contingent service/service in non-pensionable establishment was on whole time basis. Rule 11(2) of the Rules does not fix any cut-off date, i.e., the persons, who are brought to regular establishment after 01.04.2003 and covered under Rule 11(2) are entitled to count 50% of their service before regularization along with regular service for pension.
24. It is better to extract Rule 11(2) of the Tamil Nadu Pension Rules as hereunder :
11. Commencement of qualifying service -

...

(2)Half of the service paid from contingencies shall be allowed to count towards qualifying service for pension along with regular service subject to the following conditions:

(i).Service paid from contingencies shall be in a job involving whole time employment and not part time for a portion of the day.
(ii).Service paid from contingencies shall be in a type of work or job for which regular posts could have been sanctioned, for example Chowkidar.
(iii).Service shall be for which the payment is made out on monthly or daily rates computed and paid on a monthly basis and which, though not analogous to the regular scale of pay, shall bear some relation in the matter of pay to those being paid for similar jobs being performed by staff in regular establishments.
(iv).Service paid from contingencies shall be continuous and followed by absorption in regular employment without a break.
(v).Subject to the above conditions being fulfilled, the weightage for past service paid from contingencies shall be limited to the period after the 1st January 1961 for which authenticated records of service may be available.
(vi).Pension or revised pension admissible as the case shall be paid from the 23rd June 1988.
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.
25. The Government incorporated Rule 11(4), in the Tamil Nadu Pension Rules providing the benefit of counting of half of service rendered in non-provincialised service, consolidated pay, honorarium or daily wages basis along with regular service, if the service in non-provincialised service, consolidated pay, honorarium or daily wages basis is on whole time basis. However, while extending the benefits, as extended in Rule 11(2) of the Tamil Nadu Pension Rules, to the other whole time employees in non-pensionable service, Rule 11(4) has inserted the cut off date as 01.04.2003. That is, those who came to regular service before 01.04.2003 from non-provincialised service, consolidated pay, honorarium or daily wages basis on whole time basis are entitled to count 50% of their service along with regular service for pension.
26. Thus, in my judgment in Chinniyan V. State of Tamil Nadu, reported in (2014) 6 MLJ 316, I struck down the cut off date fixed in Rule 11(4) at 01.04.2003, since it is arbitrary and violative of Article 14 of the Constitution, as it seeks to deny pension to the employees, who served in non-provincialised service, consolidated pay, honorarium or daily wages for decades on full time employment and got regularised after 01.04.2003 for no fault of theirs and retired shortly thereafter rendering less than 10 years of service, which is the minimum period prescribed for eligibility for pension, while no such cut off dated as 01.04.2003 is prescribed in Rule 11(2) of the Tamil Nadu Pension Rules in the case of various categories of temporary employees on full time employment. I have held that since the employees covered under Rule 11(4) of the Tamil Nadu Pension Rules are not directly recruited employees, the cut off date fixed in Rule 11(4) at 01.04.2003 is bad and illegal. That is, the newly recruited employees in Government service after 01.04.2003 alone are covered by the New Pension Scheme (CPS) and the employees like the petitioner covered under Rule 11(4) are not directly recruited to Government service.
27. Furthermore, since Rule 11(2) of the Tamil Nadu Pension Rules does not restrict counting of half of service to contingent employees and the employees in non-pensionable establishment along with regular service to claim the benefit of pension, Rule 11(4) cannot fix cut off date as 01.04.2003. Otherwise, it would be discriminatory. There cannot be discrimination between the contingent employees and the employees employed in non-pensionable establishment on whole time basis on the one hand and the employees in non-provincialised service / consolidated pay / honorarium / daily wages basis on whole time basis on the other hand. As no cut-off date is fixed in Rule 11(2), fixing cut off date as 01.04.2003 in Rule 11(4) is discriminatory.
28. In view of Rule 11(2) and 11(4) of the Tamil Nadu Pension Rules read with my judgment in Chinniyan's case, it is made clear that all whole time employees in non-pensionable service, on becoming regular employee, are entitled to count 50% of the past service along with regular service for pension. That is, the employees in noon-meal schemes, who are also whole time employees, stand in a better footing than the employees covered under Rule 11(2) and 11(4) of the Tamil Nadu Pension Rules and they are entitled to count 50% of their service in noon-meal schemes along with regular service.
29.1. While issuing G.O.Ms.No.6, Social Welfare and Nutritious Meal Programme Department, dated 06.01.2010, the Government did not state that the absorption of employees from noon-meal schemes into regular service shall be made before 01.04.2003 as Rural Welfare Officer (Woman), for the obvious reason that the employees in noon-meal schemes were absorbed only after 01.04.2003, as explained in detail in the earlier paragraphs of this judgment.

29.2. Further, fixation of cut off date as 01.04.2003 to the absorption of Rural Welfare Officers (Women) from the employees of noon-meal schemes is arbitrary and discriminatory, since there cannot be any discrimination between the whole time employees in noon-meal schemes and the whole time employees in non-pensionable establishment covered by Rule 11(2) and 11(4) to get pension on coming to regular establshment.

30. Thus, the Government issued G.O.Ms.No.6, Social Welfare and Nutritious Meal Programme Department, dated 06.01.2010, on the basis that the persons employed in the schemes are employed on whole time basis and therefore, they are also entitled to count 50% of their service along with their regular service without any cut off date as to absorption in regular service. Hence, in my view, G.O.Ms.No.6, Social Welfare and Nutritious Meal Programme Department, dated 06.01.2010, seeks to grant the benefit to the employees in the noon-meal schemes in the light of Rule 11(2) and Rule 11(4) of the Tamil Nadu Pension Rules. Thus, G.O.Ms.No.6 has to be seen as part of Rule 11 of the Tamil Nadu Pension Rules.

31.1. Since both sides relied on paragraph 25 of the Division Bench judgment dated 03.12.2014 in W.A.(MD)Nos.587, 605, 606 and 1024 of 2014 and W.P.(MD)No.12689 of 2014, it is useful to extract paragraph 25 of the said judgment :

25.The Judgments referred to by the learned counsel for the respondents are not applicable to the facts of the present case. Various Judgments of this Court referred to by the learned counsel for the respondents only related to the regularization of persons, who were initially appointed in the same Department, and therefore, this Court held that their regularization relates to their original date of appointment. In the present case, concession was granted to the persons, who worked in Noon Meal Programme as well as in ICDS services to be appointed as Teachers/Supervisor Grade-II and Rural Welfare Officers. They were directed to write a test and only successful persons were appointed as Teachers/Supervisor Grade-II and Rural Welfare Officers. Therefore, the Judgments relied on by the learned counsel for the respondents relating to regularization of persons, who worked for number of years in the same Department, cannot be applied to the facts of the present case. 31.2. The aforesaid paragraph of the Division Bench judgment makes it clear that the said paragraph is in terms of Rule 11(2) of the Tamil Nadu Pension Rules. That is, while the first portion of paragraph 25 makes it clear that the employees covered under Rule 11(2) of the Tamil Nadu Pension Rules are entitled to count their service rendered before absorption into regular establishment along with regular service, the later portion of paragraph 25 makes it clear that those who are not covered by Rule 11(2) of the Tamil Nadu Pension Rules, that is, those who are new recruits, including Teachers / Supervisor Grade II / Rural Welfare Officer (Women) are not entitled to claim pension under the Tamil Nadu Pension Rules, as they are covered by New Pension Rules (CPS).
32.1. As rightly contended by the learned counsel for the petitioner, the Division Bench judgment, relied on by the learned Government Advocate, makes it very clear that if a person was regularised from contingent service or casual service or non-pensionable service or non-provincialised service or honorarium service or consolidated pay service or daily wages service, the regularisation relates to their original date of appointment and the past service rendered before regularization shall be counted as per Rules 11(2) and 11(4) of the Tamil Nadu Pension Rules for the purpose of pension. It is useful to extract the relevant passage from paragraph 25 of the judgment, in this regard, as hereunder :
25. The Judgments referred to by the learned counsel for the respondents are not applicable to the facts of the present case. Various Judgments of this Court referred to by the learned counsel for the respondents only related to the regularization of persons, who were initially appointed in the same Department, and therefore, this Court held that their regularization relates to their original date of appointment. ......

32.2. Thus, in my view, the above passage in the Division Bench judgment is in terms of Rules 11(2) and 11(4) of the Tamil Nadu Pension Rules.

32.3. It is not in dispute that the absorption of the persons employed in noon-meal schemes as Rural Welfare Officers (Women) was not based on any test and they were brought to regular service in the same Department, in which, they were employed, based on their seniority and qualification, in the existing vacancies. Thus, the aforesaid passage in paragraph 25 of the Division Bench judgment makes it clear that those persons, namely, Supervisors Grade II and Rural Welfare Officers (Women), are entitled to count 50% of their service rendered in noon-meal schemes along with regular service for pension, even if they are brought to regular establishment after 01.04.2003, in view of Rules 11(2) and 11(4) of the Tamil Nadu Pension Rules.

33.1. The learned Government Advocate placed heavy reliance in the following passage in paragraph 25 of the Division Bench judgment.

25. .... In the present case, concession was granted to the persons, who worked in Noon Meal Programme as well as in ICDS services to be appointed as Teachers/Supervisor Grade-II and Rural Welfare Officers. They were directed to write a test and only successful persons were appointed as Teachers/Supervisor Grade-II and Rural Welfare Officers. ...... 33.2. Even the passage relied on by the learned Government Advocate would not applicable to the Supervisors Grade II / Rural Welfare Officers, as they were absorbed without any test.

34.1. In my view, the Division Bench ruled that the persons, who are recruited after 01.04.2003, are governed by New Pension Scheme (CPS) and they could not claim pension under the Tamil Nadu Pension Rules and thus, the Rural Welfare Officers (Women), who were selected by participating in the written test held for those posts and were appointed pursuant to their success in those tests, after 01.04.2003, are governed by the New Pension Scheme (CPS).

34.2. Even the learned counsel for the petitioner has not disputed the above proposition. As stated above, the Division Bench sought to exclude the Teachers/Supervisors Grade II/Rural Welfare Officers, who are recruited pursuant to their participation in the competitive examination and were recruited afresh after 01.04.2003.

34.3. In the aforesaid passage, relied on by the learned Government Advocate, the Division Bench combined all the three posts, namely, Teachers/Supervisors Grade II/Rural Welfare Officers, who are recruited pursuant to their selection after 01.04.2003.

34.4. That is, in the case of Rural Welfare Officers (Women), it is admitted that they were absorbed without any test. The petitioner is one among the Rural Welfare Officer (Woman), got absorbed in the same department.

34.5. In my considered view, the Division Bench excludes only those persons, namely, Teachers/Supervisors Grade II/Rural Welfare Officers (Women), who got recruited after 01.04.2003 based on the open competitive examination conducted by the concerned recruiting agency for selection to those posts.

35. At the risk of repetition, I like to reiterate that in the case of Supervisors Grade II / Rural Welfare Officers (Women), they were simply absorbed without any test and that the persons with B.Ed. Qualification were absorbed as Teachers, based on the Special Qualifying Test and thus, they were also not excluded from the purview of Rule 11(2) and Rule 11(4) of the Tamil Nadu Pension Rules by the judgment of the Division Bench.

36. The Division Bench made the law very clear that whoever is recruited after 01.04.2003 to Tamil Nadu Government Service is governed by New Pension Scheme and the Teachers/Supervisors Grade II/Rural Welfare Officers (Women), who are also recruited after 01.04.2003, based on competitive examination meant for the same, could not seek to count 50% of their service rendered in noon-meal schemes along with regular service. Admittedly, the petitioner did not participate in the competitive examination for the post of Rural Welfare Officer (Woman) conducted by the concerned recruiting agency and appointed after 01.04.2003, pursuant to such selection. If any employee in noon-meal schemes chose to participate in such selection process, in the open competition, for the post of Teachers/Supervisors Grade II/Rural Welfare Officers (Women), and got selected and appointed to those posts after 01.04.2003, such an employee could not ask for pension under the Tamil Nadu Pension Rules and such a person is governed by the New Pension Scheme (CPS).

37. It is not the case of the learned Government Advocate that the Division Bench took away the rights of the Government servant under Rule 11(2) and Rule 11(4) of the Tamil Nadu Pension Rules. Therefore, if the Government chose to bring them into regular establishment from non-pensionable establishments and those persons on coming to regular establishment are entitled to claim the benefit under Rule 11(2) and 11(4) of the Tamil nadu Pension Rules. Such persons cannot be equated with persons, who are directly recruited in open competition. The Division Bench made it clear that the person recruited based on competitive examination after 01.04.2003 in Government service is governed only by the New Pension Scheme and he could not ask for pension under Tamil Nadu Pension Rules, even if he was in non-pensionable establishment prior to recruitment. But the petitioner was not recruited afresh as Rural Welfare Officer (Women) through competitive examination. Hence, the petitioner is entitled to the benefit of Rule 11(2) of the Tamil Nadu Pension Rules.

38. In fact, in my considered view, without the aid of G.O.Ms.No.6, the petitioner is entitled to seek pension under the Rules 11(2) read with 11(4) of the Tamil Nadu Pension Rules, since they rendered whole time service followed by regular service.

39.1. In my view, G.O.Ms.No.34, Social Welfare and Nutritious Meal Programme Department, dated 14.03.2013, is opposed to Rule 11(2) and 11(4) of the Tamil Nadu Pension Rules read with the judgment of this Court in Chinniyan's cae and hence, the same is bad.

39.2. As rightly pointed out by the learned counsel for the petitioner, G.O.Ms.No.34, was issued by way of clarification to G.O.Ms.No.6, by incorporating the cut off date as 01.04.2003. But the aforesaid narration of facts would make it clear that the absorption of employees in noon-meal schemes as Rural Welfare Officers took place only after 01.04.2003 and G.O.Ms.No.6, dated 06.01.2010, was issued consciously without fixing cut-off date at 01.04.2003, in view of the announcement made by the Hon'ble Chief Minister, as stated above. Hence, G.O.Ms.No.34, dated 14.03.2013, was issued without application of mind and thus, G.O.Ms.No.34 is bad and illegal.

40. I am also of the view that in view of the judgment in Chinniyan's case and for all the reasons stated above, fixing the cut off date at 01.04.2003 by way of G.O.Ms.No.34, is bad, illegal, arbitrary and violative of Article 14 of the Constitution. If the persons in contingent service and in non-pensionable establishment, who are regularised in service, are granted pension, as per Rule 11(2) of the Tamil Nadu Pension Rules, without reference to 01.04.2003, the Government cannot discriminate in the case of employees in noon-meal schemes who are brought to regular service by fixing cut off date at 01.04.2003, as these employees stand in a better-footing, as explained above.

41. Again, at the risk of repetition, it is to be reiterated that the employees in the noon-meal schemes were working for more than 8 hours before issuance of G.O.Ms.No.58, from 7.30 a.m. to 4.30 p.m. and only in G.O.Ms.No.58, the time was fixed as 8 hours from 8.00 a.m. to 4.00 p.m. Hence, I have no hesitation to state that the employees of noon-meal schemes are in whole-time employment and if so, they are entitled to the same treatment as that of the employees governed under Rule 11(2) of the Tamil Nadu Pension Rules. Hence, prescription of the cut of date as 01.04.2003 in G.O.Ms.No.34, dated 14.03.2013, is bad and illegal.

42. At this juncture, it is also useful to take note of the fact that the Government sought to count the services rendered by the B.T. Assistants, who were appointed as Secondary Grade Teachers, in Private Aided Schools along with the regular service for pension, when those teachers were absorbed into regular service after 01.04.2003, on completion of one month Child Psychology Training, pursuant to the judgment of the Division Benches of this Court in Secretary & Correspondent, Uswathun Hasana Oriental (Arabic) Girls Higher Secondary School V. The State of Tamil Nadu rep. by its Secretary, Education Department and Others reported in 2002 Writ L.R. 173 and The State of Tamil Nadu and Others V. Pallivasal Primary School, rep, by its Correspondent, Mudukulathur reported in 2004-2 L.W. 591. Hence, the employees in noon-meal schemes shall also be given the same treatment as that of the Teachers in private aided schools. In fact they are in a better footing. In the case of the aforesaid Teachers, their very initial appointment is illegal and their absorption after 01.04.2003 is afresh for all purposes except for the payment of pension and for the purpose of payment of pension, their service before absorption is counted. Hence, the employees in noon-meal schemes, who are, as stated above, in a better footing, shall also be given similar treatment.

43. For all the aforesaid reasons, this writ petition is allowed and a direction is issued to the respondents to count half (50%) of the past service of the petitioner in the noon-meal scheme along with regular service as Rural Welfare Officer (Woman) for pension and the first respondent Government is directed to issue appropriate orders in compliance of the aforesaid directions within a period of four weeks from the date of receipt of a copy of this order and the second respondent is directed to send proposals to the Principal Accountant General (A & E), Tamil nadu, for payment of pension to the petitioner, within two weeks from the date of issuance of the orders, as stated above, by the Government and the Principal Accountant General, Tamil Nadu, is directed to authorise pension within a period of two weeks from the date of receipt of the proposals. No costs. 


08.07.2015 
Index     : Yes/No
Internet : Yes
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To

1. The Principal Secretary to Government,
    Social Welfare Department,
    Government of Tamil Nadu,
    Fort St. George,
    Chennai - 600 009.

2. The Commissioner of Social Welfare,
    Guindy, Chennai  600 032.

3. The Block Development Officer,
    Thruvidaimarudur,
    Thanjavur District.

D. HARIPARANTHAMAN,J.,
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W.P.No.20133 of 2015














08.07.2015