BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 19/12/2007 CORAM: THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P(MD)No.9408 of 2007 Alagammal ... Petitioner Vs. 1.State of Tamil Nadu, rep.by the Secretary to Government, Municipal Administration and Water Supply Department, Secretariat, Chennai - 9. 2.Commissioner of Municipalities, Ezhilagam, Chennai. 3.Director of Local Fund Audit, Kuralagam, Chennai - 108. 4.The Commissioner, Dindigul Municipality, Dindigul. ... Respondents PRAYER Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified mandamus, calling for the records pertaining to the order passed by the 3rd respondent in Government Letter No.Mu.Mu.No.11987/Na.O.Sa(1)05, dated 19.4.2005 and quash the same and direct the respondents to sanction regular pensionary benefits to the petitioner in terms of the orders in G.O.Ms.No.186 Municipal Administration and Water Supply Department dated 27.9.1995 from 1976 with interest. !For Petitioner ... Mr.N.Sudalai Muthu ^For Respondents ... Mrs.V.Chellammal, Special Government Pleader :ORDER
Prayer in the writ petition is to quash the order passed by the 3rd
respondent in Government Letter No.Mu.Mu.No.11987/Na.O.Sa(1)05, dated 19.4.2005
and direct the respondents to sanction regular pensionary benefits to the
petitioner in terms of G.O.Ms.No.186 Municipal Administration and Water Supply
Department, dated 27.9.1995 from 1976 with interest.
2. The case of the petitioner is that she was appointed as Sanitary
Worker in the 4th respondent Municipality from June, 1950 to 30th June, 1976.
On 30.6.1973, though she was ordered to retire, again she was permitted to work
till 30.6.1976 on production of medical certificate. Petitioner has put in 26
years of continuous service. She applied for pensionary benefits and the same
was rejected on the ground that the petitioner retired only as a contingent
staff and therefore she is not eligible to get pensionary benefits. When
petitioner submitted representations, 4th respondent on 29.12.2004 forwarded the
same to the second respondent. The third respondent sent a reply stating that
the petitioner had not completed ten years of service from the date of
regularisation and so she was not eligible for pensionary benefits. According
to the petitioner, the Sanitary Workers were regularised by G.O.Ms.No.2469
Health and Family Planning Department, dated 1.10.1973 and as per G.O.Ms.No.270
Municipal Administration and Water Supply Department, dated 16.3.1990, adhoc
pension was ordered to be sanctioned to the persons who retired before 14.1.1990
on par with those who retired after 14.1.1970. When the petitioner applied to
the 4th respondent to intimate the reason for non-sanction of pension under the
Right to Information Act, the 4th respondent replied that the petitioner worked
as contingent staff from 1950 to June, 1976 and records were not maintained.
Hence the petitioner has filed this writ petition to quash the said order and
for sanction of pension to the petitioner from 1.7.1976.
3. Third respondent filed counter affidavit wherein it is stated that
as per Rule 7 of the Tamil Nadu Municipal Services Pension Rules, 1970, the
provisions of the Tamil Nadu Pension Rules, 1978, as amended from time to time
shall mutatis mutandis apply to the Municipal Employees insofar as they are not
inconsistent with the 1970 Rules. Rule 2 of Chapter-I of the Tamil Nadu Pension
Rules, 1978, also states that the Tamil Nadu Pension Rules shall apply to the
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 persons paid on daily rated basis
and to persons paid with contingency. Petitioner having worked temporarily
during her entire service in Dindigul Municipality and her wages having been
paid under the contingent establishments, she is not eligible to get pension.
The third respondent also sent a letter to the 4th respondent on 19.4.2004 and
stated that no records were sent by the Commissioner, Dindigul Municipality to
prove that the petitioner worked in time scale of pay at the time of her
retirement and as per Rule 2 and 43(2) of the Pension Rules, 1978, pension can
be sanctioned only to those who retire in a pensionable post or in time scale of
pay with minimum qualifying service of ten years. Since the petitioner has not
satisfied with the above conditions, petitioner is not entitled to get sanction
of pension.
4. The learned counsel for the petitioner on the basis of the typed set
filed in support of the writ petition, contended that the petitioner was retired
from service by the order of the Welfare Officer of the Dindigul Municipality
dated 30.6.1976 along with 24 others and in that order it was stated that for
filling up the said posts, separate orders will be passed. Petitioner submitted
representations to the respondents on 5.7.1976, 26.12.1976, 15.4.1977, 3.2.1978,
2.12.1982 and requested for sanction of pension and other benefits. The learned
counsel also submitted that the husband of the petitioner viz., Kuttaiyan, who
was also a Sanitary Worker of Dindigul Municipality, retired from service on
30.6.1976, and he had given the service particulars of himself and the
petitioner stating that the date of appointment as June, 1950; date of
retirement as 30.6.1976; scale of pay as Rs.30-3-130-4-150-5-165; last drawn
salary as Rs.127/-; the minimum pension eligible from 23.6.1988 as Rs.375/- per
month; the total service as 23 years and four months; regular service 2 years, 7
months and 14 days; half of the contingent service as 11 years and 7 months; and
the qualifying pensionable service as 14 years, 2 months and 14 days. The
qualifying service of gratuity is stated as 28. years and the gratuity eligible
as per the scale fixed prior to 1978 was shown as Rs.1,333.50
(28x(127+63.50)190.50/4). It is further stated therein that the amount already
received was Rs.190.50 and the balance amount to be paid to the petitioner and
her husband was shown as Rs.1,143/- each.
5. The learned counsel also pointed out that the above said details
were submitted to the Chief Minister’s Grievance Cell with a request to sanction
pension and gratuity and the Minister for Local Administration on 6.4.1995
forwarded the same to the Director of Municipal Administration for necessary and
immediate action as per the endorsement made in the copy of the representation
submitted to the Chief Minister’s Cell. However, no action was taken by the
Director of Municipal Administration based on the details furnished by the
Petitioner and her husband. Petitioner’s husband died on 5.4.1998 without
receiving the pension and after his demise, petitioner submitted representation
to the Commissioner of Dindigul Municipality to sanction her pension and also
arrears of pension of her husband from 1.7.1976 and family pension from
5.4.1998. Copy of the same was also submitted to the Director of Municipal
Administration, Chennai. The Commissioner, Dindigul Municipality through his
memo dated 2.12.2004 stated that the petitioner and her husband retired on
30.6.1976 and after expiry of 28 years, no records are available and therefore
requested the petitioner to submit the proof for their service details.
Petitioner again submitted the details on 19.1.2005. However, the Commissioner,
Dindigul Municipality addressed a letter to the third respondent on 12.2.2005 by
stating that the petitioner retired from service on 30.6.1976 and the Welfare
Officer has issued an order in his proceeding dated 19.3.1976 and also certified
that the petitioner served in the Municipality as Sanitary Worker for more than
one year and retired from service on attaining the age of superannuation on
30.6.1976 and recommended for sanction of adhoc pension in terms of
G.O.Ms.No.270 Municipal Administration and Water Supply Department, dated
16.3.1990. The third respondent sent a reply to the 4th respondent by stating
that adhoc pension can be sanctioned to persons who retired prior to 14.1.1970
and the petitioner having been paid regular time scale of pay from 1.10.1973,
she cannot be paid the adhoc pension and for payment of regular pension
petitioner is not having ten years of regular service. Even after the said
order, petitioner submitted representation on 25.4.2005 to the third respondent
and on 18.11.2005 the Government sent a letter to the petitioner stating that
the petitioner should approach the Municipal Administration and Water Supply
Department for sanction of pension. Petitioner again sent a representation to
the Commissioner, Municipal Administration on 27.2.2006 and till date petitioner
has not been sanctioned the pension or the arrears of pension to petitioner’s
husband and also family pension payable to the petitioner on the death of
petitioner’s husband. As the petitioner is now aged 89 years, who retired in
the year 1976, the learned counsel submitted that based on the materials
furnished by the petitioner as stated supra, respondents may be directed to
sanction pension and gratuity payable to the petitioner and also arrears of
pension and gratuity payable to the petitioner till the date of death of her
husband and family pension after his demise. The learned counsel also cited a
decision of this Court reported in 2006 (5) CTC 320 (O.A.Chinna Alagi v. State
of Tamil Nadu) in support of his contentions.
6. The learned Special Government Pleader appearing for the respondents
on the basis of the averments contained in the counter affidavit submitted that
the petitioner was appointed only as contingent staff and her services were not
regularised and even assuming that from 1973 her services were regularised,
petitioner was not having ten years of completed pensionable service and
therefore petitioner is not entitled to get pension and similar is the case
insofar as the petitioner’s husband is concerned.
7. I have considered the rival submissions made by the learned counsel
for the petitioner as well as respondents.
8. The facts in this case are that the petitioner and her husband were
appointed as Sanitary Worker in the 4th respondent Municipality as contingent
staff in the year 1950 and the Government issued G.O.Ms.No.2469 Health and
Family Planning Department, dated 1.10.1973 and issued guidelines for appointing
sanitary workers in the local bodies and in clause 4 of the said Government
Order it is stated that Sanitary Workers be granted scale of pay of Rs.100-3-
130-4-150-5-165 and they are, in addition to the said pay, eligible to get DA of
Rs.35 besides HRA and other benefits and that they are also entitled to continue
upto 60 years of age, provided they are medically fit. In the letter of the
third respondent addressed to the 4th respondent dated 19.4.2005, it is stated
that the Sanitary Worker posts, which the petitioner and her husband were
holding were given regular time scale of pay from 1.6.1973 and they were
brought in the pensionable service as per the Tamil Nadu Pension Rules, 1978.
Therefore, there is no controversy with regard to their regularisation of
service from 1.6.1973 and their continuance as regularised Sanitary Workers till
30.6.1976 with time scale of pay.
9. The only objection as could be seen from the order is that the
petitioner and her husband were not having ten years of qualifying pensionable
service. Admittedly the petitioner and her husband served as contingent staff
from June, 1950 till 31.5.1973 as full time employee of the 4th respondent and
brought to regular time scale of pay from 1.6.1973, without any break in service
and thus, the petitioner and her husband were having 23 years of contingent
service and 3 years and 4 months of regular service.
10. The Government took a policy decision through G.O.Ms.No.118 Finance
(Pension) Department dated 14.2.1996 and paragraphs 2 and 3 of the order reads
as under,
“2. The Government have examined the question of extending the
concession ordered in the G.O. First read above to the case of Government
employees who were borne on non-pensionable establishment and subsequently
brought into pensionable establishment and have decided to count half of the
service rendered under non-pensionable establishment along with service under
pensionable establishment for pensionary benefits. They accordingly direct that
half of the service rendered by State Government employees 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:
i) Service under non-pensionable
establishment should have been in a
job involving whole time employment.
ii) The service under non pensionable
establishment should have been on
time scale of pay.
Iii) 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 G.O. 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.”
11. Similar issue as to whether the contingent service can be counted
for pensionable service was considered by the Tamil Nadu Administrative Tribunal
in O.A.NO.3282 of 1999 and by order dated 20.12.2001, the Tamil Nadu
Administrative Tribunal considered the relevant Government Orders and directed
to count 50% of the said contingent services as pensionable service on the
ground that the contingent service was on full time basis, monthly salary was
paid and without any break in service and the contingent staff were brought into
regular time scale. The State Government challenged the said order of the
Tribunal in W.P.No.1892 of 2003 (State of Tamil Nadu and others Vs. Alagar and
others) and a Division Bench of this Court by Judgment dated 23.1.2003, upheld
the order of the Tribunal by observing as follows:
“2. They were all Causual Labourers under the control of the Deputy
Director of Animal Husbandry, Sheep Farm, Sattur, Virudhunagar District. They
were appointed in 1970s and 1980s and were continuously in service since then.
They were paid daily wages out of the contingent fund. Their services were
subsequently regularised. These persons retired between 1999 and 2000.
However, they were refused the pension. The Tribunal took the view that since
they were in continuous service, they would be liable to be given their pension
on the basis of the calculations made, i.e., half of their non-pensionable
service shall be counted along with their pensionable service for the purpose of
enabling them to get pension. The Tribunal has directed the authorities to go
into the calculations and then grant the pension.
3. We do not find anything wrong with this approach. After all, if the
casual workers have put in service of 20 or 30 years as the case may be, they
are bound to receive the pension as per the available rules. The writ petition
has no merits. It is dismissed.”
12. In this case, if 50% of the contingent services are counted as
pensionable service, the petitioner and her husband will have more than 14
years, 2 months and 14 days of pensionable service and the same could be seen
from the details furnished by the petitioner’s husband to the Chief Minister’s
Special Cell, which was forwarded to the Director of Municipal Administration
for immediate action by the Minister of the Local Administration as early as on
6.4.1995. Hence the petitioner and her husband are entitled to get sanction of
pension under the Tamil Nadu Pension Rules, 1978, and also gratuity.
13. 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. 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.
14. The 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 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.”
15. 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 anyone’s 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 employer’s 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 one LIC officer.
16. In the decision relied on by the learned counsel for the petitioner,
reported in 2006 (5) CTC 320 (cited supra), the learned Judge took note of the
21 years of contingent services without break and found that the failure on the
part of the department in not taking steps to regularise the services of the
contingent staff cannot be put against the said staff and on that account
pensionary benefits cannot be denied. I have also considered the issue as to
whether non-regularisation of service of the Government Servants, who worked for
more than 30 years can be sanctioned pension, in W.P.Nos.15258 and 15468 of
2006 and by order dated 18.7.2007 I have held as follows:
“… having regard to the fact that the petitioners are having more than 30
years of service and they are allowed to retire on attaining the age of
superannuation, I am of the view that the petitioners are entitled to get
sanction of pension from the date of retirement and a direction is issued to the
respondents to sanction pension. The arrears of pension payable to the
petitioners from the date of retirement shall be calculated and paid to the
petitioners within three months from the date of receipt of copy of this order.”
The above said judgments also support the case of the petitioner herein, even
though there is a slight distinction in this case as admittedly the petitioner
and her husband were brought to regular service from 1.6.1973.
17. The learned counsel for the petitioner further submitted that the
petitioner is also entitled to receive the arrears of pension and gratuity
payable to the petitioner’s husband from 1.7.1976 till his death on 5.4.1998 and
from 6.4.1998, petitioner is entitled to receive family pension due to the death
of her husband, or atleast from 14.2.1996, the date of issue of G.O.Ms.No.118
Finance (Pension) Department, dated 14.2.1996.
18. Petitioner’s husband’s services were also regularised from 1.6.1973
and he retired on the same date i.e., on 30.6.1976, he was also having 14 years,
2 months and 14 days of pensionable service as calculated in the case of the
petitioner. Hence the petitioner is also entitled to get sanction of arrears of
pension and gratuity of her husband from 14.2.1996 till his demise on 5.4.1998.
Petitioner being widow, she is entitled to get family pension, apart from her
service pension payable from 14.2.1996 as per G.O.Ms.No.118 Finance (Pension)
Department, dated 14.2.1996.
19. It is unfortunate that the petitioner at the age of 89 years and
having retired as early as on 30.6.1976, is forced to come to this Court for
getting her service pension and family pension. Had the respondents applied
their mind, pension could have been paid to the petitioner and her husband from
14.2.1996 itself. The attitude adopted by the respondents show how the
respondents have avoided from taking decision in a just and proper manner. When
the Government passes an order taking into consideration the realities of the
ground situations, the Officers of the Government are expected to strictly act
on the basis of the decisions of the Government, without narrowly interpreting
the Rules by avoiding dogmatic and wooden approach.
20. In the result, the writ petition is ordered with the following
directions:
(a) The third respondent is directed to calculate the arrears of pension
payable to the petitioner from 14.2.1996 and gratuity and pay the same to the
petitioner within a period of two weeks from the date of receipt of copy of this
order.
(b) The third respondent is further directed to sanction and pay the
arrears of pension and gratuity payable to the petitioner’s husband from
14.2.1996 to 5.4.1998 and family pension from 6.4.1998 to the petitioner, within
a period of two weeks from the date of receipt of copy of this order.
(c) There will be no order as to costs.
vr
To
1. The Secretary to Government,
Municipal Administration and Water Supply Department,
Secretariat, Chennai – 9.
2. The Commissioner of Municipalities,
Ezhilagam, Chennai.
3. The Director of Local Fund Audit,
Kuralagam, Chennai – 108.
4. The Commissioner, Dindigul Municipality, Dindigul.