Madras High Court
The State Of Tamil Nadu vs Chinna Karuppaiah on 19 November, 2019
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam, R.Tharani
W.A.(MD)Nos.1254 & 1255/ 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :19.11.2019
CORAM:
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
and
THE HONOURABLE MRS.JUSTICE R.THARANI
W.A.(MD)Nos.1254 and 1255 of 2019
and
C.M.P(MD)No.10796 and 10798 of 2019
1.The State of Tamil Nadu,
Rep. By its Secretary,
Department of Revenue,
St. George Fort, Chennai.
2.District Collector,
Virudhunagar District.
.. Appellants 1 & 2 in both the writ appeals/
Respondents
3.The Revenue Divisional Officer,
Sivakasi, Virudhunagar District.
... 3rd Appellant in W.A(MD)No.1254 of 2019
/Respondent
4.The Tahsildar,
Srivilliputhur, Virudhunagar District.
... 3rd Appellant in W.A(MD)No.1255 of 2019/
Respondent
Vs.
1.Chinna Karuppaiah
.... 1st Respondent in
W.A(MD)No.1254 of 2019 / Petitioner
2.Sivasubramanian
... 1st respondent in
W.A(MD)No.1255 of 2018
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W.A.(MD)Nos.1254 & 1255/ 2019
3.The Principal Accountant General (A & E) Pension,
391, Anna Salai, Chennai.
... 2nd Respondent in both the Writ Appeals /
Respondent No.1
COMMON PRAYER: Writ Appeals filed under Clause 15 of Letters
Patent, to set aside the orders dated 10.07.2018 in W.P(MD)Nos.6744
and 6755 of 2018.
(In both writ appeals)
For Appellants : Mr.A.K.Baskarapandian,
Special Government Pleader
For R-1 : T.S.Mohammed Mohideen
For R-2 : Mr.P.Gunasekaran
COMMON JUDGMENT
[Judgment of this Court was made by T.S.SIVAGNANAM, J.] Heard Mr.A.K.Baskarapandian, learned Special Government Pleader for the appellants and Mr.T.S.Mohammed Mohideen, learned counsel for the first respondent and Mr.P.Gunasekaran, learned counsel for the second respondent.
2. These writ appeals filed by the State of Tami Nadu, Represented by its Secretary, Department of Revenue and two others, is directed against the order in W.P(MD)Nos.6744 and 6745 of 2018 dated 10.07.2018.
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3. The said writ petitions were filed by the first respondent for issuance of a Writ of Certiorarified Mandamus to quash the proceedings dated 24.01.2018 passed by the office of the Principal Accountant General, who is the second respondent in these appeals. The writ petitioners sought for a consequential direction to count half of the service rendered by them as full time Thalaiyari on temporary basis from 07.08.1964 and 01.06.1995 and 22.08.1975 and 31.05.1995 respectively and pay pension including the half service rendered during the relevant period. The writ petitions were tagged along with several other writ petitions, wherein more or less identical prayer was sought for and by a common order dated 10.07.2018, the writ petitions are allowed. While doing so, the learned Single Bench has taken note of various earlier decisions on the very same issue and some of which are the judgments of the Honourable Division Benches.
4. It is the submission of the learned counsel appearing for the first respondents/writ petitioners that several of the decisions of the Honourable Division Benches and the Honourable Single Benches have been implemented by the Government and pension has been paid by counting 50% of the services rendered as 'Thalaiyari'. Further, it is submitted that in W.A(MD)Nos.898 to 904 of 2018, dated 17.07.2018 , in an appeal filed by the Accountant General, the Division Bench considered the matter elaborately and dismissed the appeals. http://www.judis.nic.in 3/11 W.A.(MD)Nos.1254 & 1255/ 2019
5. While doing so, the Honourable Division Bench noted that identical orders were subject matter of challenge before the Honourable Supreme Court in S.L.P.Nos.26586 to 26593 of 2012 which were dismissed confirming the judgment made in the writ appeals. Therefore, the contention of the first respondents/writ petitioners is that a settled issue should not be permitted to be reopened in these appeals.
6. The present writ appeals have been filed by the State and arguments were advanced by Mr.A.K.Baskarapandian, learned Special Government Pleader.
7. Mr.P.Gunasekaran, learned standing counsel for the Principal Accountant General the second respondent herein supported the contentions raised by the State in these appeals and we have permitted the learned standing counsel to advance arguments as if Principal Accountant General is also an appellant in these appeals.
8. The argument of the learned counsels is by referring to the Tamil Nadu Village Servants Conduct Rules, 1983. Rule 3 of the said Rules is pressed into service to say that Village Servants being part-time Government servants, may take up part-time work or occupation, provided that such part time work or occupation shall not interfere with their legitimate duties as village servants and the previous permission is http://www.judis.nic.in 4/11 W.A.(MD)Nos.1254 & 1255/ 2019 required to be obtained from the Revenue Divisional Officer is concerned if the work or occupation is confined to a village and from the District Collector concerned, if the work or occupation extends beyond the village.
9. It is submitted that this Rule is a clear indication to show that all village servants are part time servants and that is why they have been permitted to undertake private rated employment or any other employment. At the first blush, this argument appears to be correct, but on a closer scrutiny we find otherwise. In fact, this argument was found favour by the learned Single Judge of this Court, in W.P(MD)Nos.3496 to 3498 of 2015, dated 10.07.2019 and those writ petitions were dismissed by the said order as against which those writ petitioners have preferred appeal and the appeals have been entertained. Since this ground has also been convinced, we test the correctness of the said submission in these writ appeals. The Tamil Nadu Village Servants Conduct Rules, 1983, were framed in the year 1983 and it applies to all the village servants in the State of Tamil Nadu.
10. Rule 2 of the Conduct Rules states that the Tamil Nadu Government Servants' Conduct Rules, 1960, as amended from time to time, shall apply to the village servants subject to the modification specified in Rule 3, which we referred above dealing with private trade http://www.judis.nic.in 5/11 W.A.(MD)Nos.1254 & 1255/ 2019 or employment. Thus an exception has been made in respect of private trade or employment. This exception has been made by virtue of the Tamil Nadu Village Servants Conduct Rules, which has been made applicable in the Tamil Nadu Government Servants' Conduct Rules, 1960, which is only applicable to village servants except for the modification in Rule 3 of the Conduct Rules 1983. What is relevant to note is that the Government vide its order in G.O.Ms.No.141, Revenue, 21.01.1981, in exercise of the powers conferred by the provision to Article 309 of the Constitution of India has framed the Tamil Nadu Village Servants Service Rules, 1980. Those Rules apply to all village servants throughout the State.
(i) Rule 2(a) defines to mean any person as Talayari (jiyahhp), Vetti(btl;o) or Nirganti(eph;fe;jp).
(ii) Rule 3 deals with method of recruitment, which is by direct recruitment.
(iii) Rule 5 prescribes qualifications for the Post.
(iv) Rule 6 empowers the appointing authority namely Tahsildar or the Deputy Tahsildar in independent charge to make temporary appointments where it is necessary in public interest.
(v) Rule 8 prescribes the General qualification,
(vi) Rule 9 deals with appeals against the orders of appointment.
(vii)Rule 10 deals with power of the revisional authority and http://www.judis.nic.in 6/11 W.A.(MD)Nos.1254 & 1255/ 2019
(viii) Rule 11 deals with probation.
(ix)Rule 12 provides for transfer of village servants either on administrative grounds or on request amounting to mutual transfer.
(x) Tenure of office of village servants is dealt with in Rule 13.
The village servants on attaining the age of 60 years shall retire and shall not be retained in service. Proviso to Rule 13(1) gives power to the Government to retire a village servant at any time after, he completed 30 years of service, provided, he issued three months notice. Sub-Rule 2 of Rule 13 deals with the maximum period of casual leave in a year. Sub- Rule 3 of Rule 13 empowers the appointing authority to grant leave without honorarium for a specified period.
(xi) Rule 14 deals with the amount to be paid on retirement. Sub-Rule 1 of Rule 14 states that every person who ceases to hold the post of part-time village servant by reason of sub-rule (i) of rule 13, shall be paid an amount for the total service put in by him as part-time village servant and such amount shall be determined in accordance with the provisions of sub-rule 2 of Rule 14. Thus, for the first time, in Rule 14(1), the terminology part-time village servant has been mentioned and this is referable to Rule 13(1), which fixed the tenure of office and proviso under the sub-rule provides that the Government may retire a village servant before the age of 60 years ie., after he has completed 30 years of service, provided, he is put on notice. In such cases, when the power is exercised, the emoluments which are payable to such part-time http://www.judis.nic.in 7/11 W.A.(MD)Nos.1254 & 1255/ 2019 village servant is to be computed in terms of sub-rule 2 of Rule 14. Similar indication is also found in the proviso to sub-rule 2 of Rule 14 and also the definition of total service under the said proviso, which states that total service shall not include any period during which a part-time village servant was on leave either casual leave or absent without authorisation or under suspension.
(xii). Rule 15 deals with resignation which does not specify it as part-time village servants, but nomenclature is only village servants. Similarly, place of residence also refers to a village servant and the part- time village servant has not been specifically mentioned.
11. Therefore, in our considered view, the interpretation sought to be made before us by referring the Conduct Rules, 1983 and more particularly Rule 3 thereunder to state that all village servants are deemed to be part-time servants. However, this argument is not acceptable. More or less an identical issue was raised before the Honourable Division Bench in the case of the District Collector, Nagercoil and another vs. K.Raman Nair in W.A.No.16 of 2009 and the appeal filed by the State was dismissed and at this juncture, it would be relevant to take note of the following finding:
“7.The persons who were appointed as per the proceedings dated 21st July, 1975 cannot be guided pursuant to the order of regularisation contained in G.O.Ms.No.625, Revenue Department, dated 6th July, http://www.judis.nic.in 8/11 W.A.(MD)Nos.1254 & 1255/ 2019 1995. Even the said Government Order says that the services of persons appointed as part-time Village Assistants were regularised in the time scale of pay of Rs.600-10-750. If the writ petitioner was appointed on 21st July, 1975, along with others, on temporary basis in the scal of pay fixed for Village Assistants, the respondents cannot deny pensionary benefits to the writ petitioner and others who were so appointed along with him, giving reference to G.O.Ms.No.625, Revenue Department, dated 6th July, 1995, as payment of pension is guided by statutory rule. Therefore, the said Government Order 625, Revenue Department, dated 6th July, 1995 is applicable only to those who were initially appointed as part-time Village Assistants and subsequently given Full Time appointment by providing scale of pay to the post of Village Assistants at Rs. 600-10-750 and not to those, like the petitioner, who were already temporary Village Assistants in the regular scale of pay.
12. Apart from the above decision, there are various other decisions of the Honourable Division Benches and Honourable Single Benches and many of which are stated to have been implemented. Therefore, in our considered view, the decision in the case of C.Chellaswamy and others vs. State of Tamil Nadu and Others in W.P(MD)Nos.3496 to 3498 of 2015, dated 10.07.2019 , rejecting the prayer sought for in the writ petition does not lay down the correct legal principles. More so, in the light of the earlier decisions of the http://www.judis.nic.in 9/11 W.A.(MD)Nos.1254 & 1255/ 2019 Honourable Division Benches as pointed out by us earlier, mere reference of Rule 3 of the Conduct Rules, which grants permission for part-time village servants to take up part-time work or occupation, will not term all the employments as part-time employments. Furthermore, the Government had taken into consideration the nature of working conditions and then took a policy decision to bring them into regular time scale of pay. Thus, considering all these factors, we are of the view that the order passed in the writ petitions does not call for any interference.
In the result, these writ appeals stand dismissed. No Costs. Consequently, connected Miscellaneous Petitions are closed.
[T.S.S.,J] [R.T., J]
19.11.2019
Index : Yes / No
Internet : Yes / No
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W.A.(MD)Nos.1254 & 1255/ 2019
T.S.SIVAGNANAM, J.
and
R.THARANI, J.
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JUDGMENT MADE IN
W.A.(MD)Nos.1254 and 1255 of 2019
19.11.2019
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