C.Elango v. The Government Of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 20.09.2017

CORAM

THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM W.P.Nos.13098 & 13099 of 2016 and W.M.P.Nos.11466 & 11467 of 2016 1.C.Elango ... Petitioner in WP 13098/2016 2.V.P.Shanmugasundaram ... Petitioner in WP 13099/2016 Vs.

1. The Government of Tamil Nadu, rep. by its Secretary, School Education Department, Fort St. George, Chennai - 600 009.

2. The Director of School Education, College Road, Chennai - 600 006.

3. The Joint Director (Higher Secondary), Vocational, Chennai - 600 006.

4. Accountant General (A&E), Office of the Principal Accountant General, Tamil Nadu, Chennai - 600 018.

... Respondents (in both Wps) Prayer in WP.13098/2016: Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Mandamus to direct the respondents to include the services rendered by the petitioner from initial appointment till regularization (i.e. 05.07.1982 to 31.03.1990) for the pension purpose. Prayer in WP.13099/2016: Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Mandamus to direct the respondents to include the services rendered by the petitioner from initial appointment till regularization (i.e. 16.07.1982 to 31.03.1990) for the pension purpose. For Petitioner : Mr.R.Saravanakumar in both WPs For Respondents: Mr.K.Dhananjayan, for 1 to 3 in both WPs Special Government Pleader For Respondent : Miss.T.S.Selvarani, for 4 in both WPs

C O M M O N O R D E R The relief sought for in these writ petitions is to direct the respondents to include the services rendered by the writ petitioners from the initial date of appointment for the purpose of pensionary benefits.

2.The writ petitioners were initially appointed on temporary basis and subsequently their services were regularized. However, the temporary services rendered by the writ petitioners have not been taken into account for the purpose of granting pension. In this regard, the writ petitioners have submitted representations to the respondents on 22.02.2016.

3.Thus, without going into the merits of the matter, the second respondent is directed to consider the representations submitted by the writ petitioners on 22.02.2016 and pass appropriate orders on merits and in accordance with law, with in a period of twelve weeks from the date of receipt of a copy of this order. 4.The Writ Petitions stand disposed of accordingly. No costs. Consequently, connected miscellaneous petitions are closed. msm 20.09.2017.

Being Mentioned The Writ Petition having been posted on 19.12.2017 under the caption "For Being Mentioned" for orders pursuant to the order of the court dated 20.09.2017 and made in W.P. Nos 13098 & 13099/2016 in the presence of the above said Advocates, the court made the following order:

This matter came up for hearing today under the caption 'For Being Mentioned' at the instance of the learned counsel appearing on behalf of the petitioner.

2.The relief sought for in this writ petition is for seeking to direct the respondents to include the services rendered by the petitioner from initial appointment till regularization (i.e., 05.07.1982 to 31.03.1990) for the pension purpose. This Court has issued the Order on 20.09.2017 in the Writ Petition. The learned counsel appearing on behalf of the writ petitioner submitted that the order issued on 20.09.2017 has to be modified. 3.Heard Mr.K.Dhananjayan, learned special Government Pleader for the respondents and he submits that the order may be modified.

4.Accordingly,the order dated 20.09.2017 in the above Writ Petition shall be read as follows from paragraph (3) : " 3. The learned counsel appearing on behalf of the writ petitioner states that the writ petitioner was appointed as double part time Vocational Teacher on consolidated pay basis w.e.f., 05.07.1982. Subsequently, his service was regularised w.e.f., 31.03.1990. Thus, the petitioner has considered to move the writ petition for the purpose of counting of 50% of the service rendered during the time of working as double part time Vocational Teacher. As per the Judgment of the Hon'ble Division Bench of this Court, has earlier considered the very same issue and allowed the claim of the part time Vocational Teacher for the purpose of counting of 50% service rendered.

4. The Government of Tamil Nadu issued the Amendment of Rules of the Tamil Nadu Pension Rules, 1978. In view of the Amendment Rule, the writ petitioner is entitled for the claim of 50% of the temporary service rendered by him. Accordingly, the learned counsel cited two Hon'ble Division Bench Judgments of this Court, in the same subject dated 13.06.2016 passed in W.A.No.658 of 2016 and dated 16.03.2015 passed in W.A.No.359 of 2015, wherein, the Division Bench of this Court had considered the line of Government Orders passed in this regard and upheld the judgment of the learned Single Judge and the relief sought for in those writ petitions were granted by the Hon'ble two Division Bench, more specifically, the judgment of the Division Bench dated 16.03.2015, the relief to single part time teachers and judgment dated 13.06.

2016, the relief to double part time teachers. However, the legal principles laid down and the relief granted both for the single part time teachers and double part time teachers are one and the same and based upon the Government Orders issued therein. Pursuant to the Government Orders, the Government amended the Rule also.

"11. Commencement of qualifying service:

(1) Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes 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 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 :

(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.

(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 Travancore # Cochin 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"

5. Pursuant to the line of Government Orders and the amended rule as stated supra had been issued by the Government of Tamil Nadu, the writ petitioner is entitled for counting of 50% of his temporary services as qualifying service for the purpose of calculating the pensionery benefits.

6. The learned Special Government Pleader, while not disputing the legal principles laid down in these two judgments of the Hon'ble Division Bench, raised objection that the case of the writ petitioner is to be verified with reference to the service records of the writ petitioner.

7. It is needless to state that it is the duty of the respondents to verify the service records of the writ petitioner and pass appropriate orders extending the benefit. Accordingly, the respondents have to take a decision after due verification of the service records of the writ petitioner. Thus, this Court is inclined to consider the ground raised in the writ petition and accordingly, the respondents are directed to count 50% of the temporary service rendered by the writ petitioner with reference to Rule 11 of the Tamil Nadu Pension Amended Rules and accordingly, pass appropriate orders as early as possible by granting the service benefits.

8. With the above direction, the Writ Petition stands disposed of. The said exercise shall be carried out by the respondents within a period of four weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed. s/d- Assistant Registrar True Copy Sub-Assistant Registrar

To

1. The Government of Tamil Nadu, rep. by its Secretary, School Education Department, Fort St. George, Chennai - 600 009.

2. The Director of School Education, College Road, Chennai - 600 006.

3. The Joint Director (Higher Secondary), Vocational, Chennai - 600 006.

4. Accountant General (A&E), Office of the Principal Accountant General, Tamil Nadu, Chennai - 600 018.

+2 Ccs to Mr.R. Saravanakumar, Advocate sr 91073 & 91072. +1 cC to Govt. Pleader sr 69912.

W.P.No.13098 & 13099 of 2016 NMI(CO) SP(27/12/2017)