T.Vengaiah, v. The Commissioner
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08-08-2017
CORAM:
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM W.P.No.10790 of 2016 T.Vengaiah ..Petitioner in person vs.
1. The Commissioner, Corporation of Chennai, Chennai-600 003.
2. The Regional Deputy Commissioner (Central), Corporation of Chennai, Shenoy Nagar, Amaindakarai, Chennai-600 029.
3. The Zonal Officer-6, Corporation of Chennai, Ayanavaram, Chennai-600 023.
..
Respondents This Writ Petition is filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Mandamus, directing the 1st to 3rd respondents to implement G.O.No.408 of Finance (Pension) Department, dated 25.8.2009 and resolution of Council No.551/2009 dated 31.12.2009 and grant pension by taking into account the half the service of 13 years rendered as casual labour by the petitioner with the total regular service of 28 years and grant the petitioner full pension by considering his representations dated 17.7.2015, 7.8.2015 and 27.8.2015.
For Petitioner : Mr.T.Vengaiah (Party-in-Person) For Respondents : Mr.G.Anantharangan
O R D E R
The relief sought for in this writ petition is for a direction to the third respondent to implement the G.O.No.408 of Finance (Pension) Department, dated 25.8.2009, so as to count half of the services rendered by the writ petitioner as casual labour along with his regular service.
2. The writ petitioner was initially appointed as Sanitary Worker on 17.5.1972 on casual basis. Thereafter, his
services were regularised in the post of Sanitary Worker with effect from 22.3.1985. He continued thereafter as regular employee and retired from service on 30.6.2013 on attaining the age of superannuation. Thus, the writ petitioner moved this writ petition to count his temporary services of 13 years along with regular service so as to get full pension.
3. As per the petitioner's stand, the said service of 13 years on casual basis and thereafter 28 years on permanent basis and accordingly, he is entitled for 41 years of qualifying service for the purpose of calculation of his pension and pensionary benefits.
4. The respondents have omitted to calculate the casual labour service in accord with G.O.No.408, Finance (Pension) Department, dated 25.8.2009. The learned counsel appearing for the writ petitioner contended that as per the said G.O.No.408 dated 25.8.2009, half of the service ought to have been taken into account for calculation as qualifying service along with the services rendered by the writ petitioner for the purpose of fixation of pension. But the respondents have failed to do so.
5. The learned Standing Counsel, appearing on behalf of the respondents, opposed the contentions by stating that the writ petitioner was working only as casual labourer and such service cannot be counted for the purpose of pension. His actual services of 28 years were already taken into account and the pension and pensionary benefits of the writ petitioner had been settled. Thus the writ petition filed by the writ petitioner deserves no further consideration.
6. The grievances advanced in this writ petition is the non-consideration of the amended Rule 11 of the Tamil Nadu Pension Rules, in respect of qualifying the services and the amended Rule is extracted hereunder:
Rule 11 QUALIFYING SERVICE
1. "Commencement of qualifying service - {(1}) Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he taken charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. In the case of a Government servant retiring on or after the 1st October. 1969,2 {.....} 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.
(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:
● service paid from contingencies shall be in a job involving whole time employment and not part time for a portion of the day.
● Service paid from contingencies shall be in a type of work or job for which regular posts could have been sanctioned, for example Chowkidar.
● 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.
● Service paid from contingencies shall be continuous and followed by absorption in regular employment without a break.
● Subject to the above conditions being fulfilled, the weightage for past service paid from contingencies shall be limited to the period after the 1st Januarty 1961 for which authenticated records of service may be available.
● 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.
(3) These orders shall take effect from the date of this Government Order. In respect of those who retired prior to the date of this order, eligible pension or revised pension, as the case may be, shall be paid from the date of this order, and that there can be no claim for arrears in any case for the period upto the date of this order.
Note: In the case of the employees of the former Pudukkottai State and persons transferred from the former Travancore-Cochin State consequent on the reorganisation of State temporary or officiating service rendered in a regular capacity under the former Pudukkottai State or the former TravancoreCochin State shall count in full for purposes of pension:
Provided that- (a) in the case of a Government Servant, service rendered before attaining the age of eighteen years shall not count, except for compensation gratuity; (b) in the case of a Government Servant whose year and month of birth are known, but not the exact date the 16th of the month should be treated as the date of birth. When the year of birth is known but not the month and date 1st July if the year shall be taken. (c) in the case of a Government Servant with no military service who gives on recruitment only his age, but not the year of his birth the year should be arrived at by deducting from the year of recruitment the given age and then the date of birth should be taken as the 1st July of that year:
Provided further that in the case of a Government servant with previous military service the date of birth is fixed as laid down below:
When a military employee is transferred to a civil department under the Government and assumes a civilian status, the date of birth to be entered in his service book should be the date stated by him at the time of attestation.
When the documents referring to the previous military service of an individual do not give the definite date of birth but only the age stated at the time of attestation, he should be assumed to have completed the stated age on the date of attestation e.g., if one ex-soldier was enrolled on 1st January 1910 and if, on
that date, his age was stated to be 18, his date of birth should be taken as 1st January 1892. This procedure will apply to cases arising on or after 27th June 1938.
Notwithstanding anything contained above in cases where S.S.L.C. Or any other school certificate is available, the date of birth, as entered therein should be taken into account.
[Explanation.--For the purpose of date of birth, the word 'attestation' refers only to the initial records kept by the Defence Department at the time of appointment of the individual and not in the discharge certificate on discharge from the Defence Department.
7. While amending Rule 11(4)(iii), the Government imposed the cut-off date as 01.04.2003. It is stated that "Service rendered in non-provincialised service, consolidated pay, honorarium or daily wages basis shall be followed by absorption in regular service before 1st April 2003 without a break".
8. In view of the amended Rule 11 of the Tamil Nadu Pension Rules, which was already adapted by the third respondent, the writ petitioner is eligible for counting of the half of the services rendered by him as casual labour if he satisfies the conditions stipulated in the said amended Rules. If the writ petitioner falls within the categories mentioned in Rule 11 as well as the order of the Commissioner, then the writ petitioner's case is to be considered.
9. Accordingly, the writ petition filed by the writ petitioner deserves to be considered and the writ petition stands allowed. The respondents are directed to consider the case of the writ petitioner for counting half of the services rendered by him as casual labour in the Corporation in accord with Rule 11 of the Tamil Nadu Pension Rules, 1978 and as per proceedings of the Commissioner dated 18.12.2009 in Po.Dhu.Na.Ka.No.P3/39473/09 and pass appropriate orders in this regard, within a period of twelve weeks from the date of receipt of a copy of this order and communicate the same to the writ petitioner. However, there shall be no order as to costs.
s/d- Assistant Registrar(CS VIII) True Copy Sub-Assistant Registrar Svn
To
1. The Commissioner, Corporation of Chennai, Chennai-600 003.
2. The Regional Deputy Commissioner (Central), Corporation of Chennai, Shenoy Nagar, Amaindakarai, Chennai-600 029.
3. The Zonal Officer-6, Corporation of Chennai, Ayanavaram, Chennai-600 023.
+2 Ccs to Mr.T. Vengaiah, Advocate sr 57127.
WP No.10790 of 2016 VGI(CO) sp(31/08/2017)