BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09/11/2009
CORAM
THE HONOURABLE MR. JUSTICE R.S.RAMANATHAN
W.P.(MD)No.8289 of 2008
and
M.P.(MD)No.1 of 2008
R.Srinivasan ...Petitioner
Vs.
1.The State of Tamil Nadu,
Rep. by its Secretary,
Rural Development Department,
Panchayat Raj,
Chennai-9.
2.The Director of Rural Development
and Panchayat Raj,
Panagal Building,
Saidapet,
Chennai-15.
3.The District Collector,
Thanjavur District.
4.The Block Development Officer,
Thanjavur.
5.The Accountant General,
No.361, Anna Salai,
Chennai-600 018. ...Respondents
Prayer
Writ Petition has been filed under Article 226 of the
Constitution of India praying for the issuance of a writ of Certiorarified
Mandamus, to call for the records on the file of the 5th respondent in
connection with the order passed by him in his proceedings Po2/3/S316-
1363/RTD/2007-2008, dated 14.01.2008 and the consequential order passed by the
4th respondent in his proceedings Na.Ka.No.6514/2007 A1, dated 29.02.2008 and
quash the same and direct the respondents to count half of the service of the
petitioner from 01.06.1972 to 11.08.1999 for the purpose of payment of all the
terminal benefit including the commutation of pension, pension arrears and
monthly pension with 18% of interest per annum.
!For Petitioner ... Mrs.J.Nisha Banu
^For respondents 1 to 3 ... Mr.R.Balasubramanian
Additional Government Pleader
For 4th respondent ... Mr.K.M.Vijaiyakumar
For 5th respondent ... Mr.Gunasekaran
:ORDER
Heard both sides.
2.The petitioner was selected for appointment to the post of part time
Panchayat Clerk on 01.06.1972 and was regularly appointed as Panchayat Assistant
from 01.01.1991. Later, he was appointed as Rural Welfare Officer, Grade III on
07.08.1999 in the Thanjavur Panchayat Union and joined service on 11.08.1999 and
then promoted to the post of Assistant on 07.06.2007 and retired on 31.10.2007.
3.According to the petitioner, his service as a Part time Panchayat Clerk
from 01.06.1972 to 30.12.1990 has to be considered for calculating the pension
and if so, calculated he is eligible to claim pension. But the 5th respondent,
by his proceedings, dated 14.01.2008 has stated that the total non-qualifying
service of the petitioner is 8 years 2 months and 21 days and therefore, the
petitioner is not entitled to any pension as he has not completed 10 years of
service, which is the minimum required for claiming pension and on the basis of
the proceedings of the 5th respondent, the 4th respondent passed the impugned
order stating that the petitioner is not entitled to pension and this order is
challenged in this writ petition.
4.The 3rd and 5th respondent filed their counter statement and contended
that the period of service of the petitioner prior to 01.01.1991 cannot be
considered for calculating the pension and the petitioner is not entitled to any
pension.
5.Mrs.J.Nisha Banu, the learned counsel appearing for the petitioner
submitted that as per G.O.Ms.No.118 Finance (Pension) Department, dated 14th
February 1996, half of the service rendered by State Government employee under
non-pensionable establishment shall be counted for pensionary benefits along
with regular service under pensionable establishment and this court has held in
W.P.No.39080 of 2006, dated 25.03.2009 that as per the G.O.Ms.No.437, Finance
(Pension) Department, dated 23.06.1988, benefits were extended to the local
bodies also following the judgment reported in (2006)4 MLJ 1027 (K.Sampath v.
State of Tamil Nadu and confirmed in W.A.(MD)No.335 of 2007, dated 11.07.2008,
granted pension to the petitioner in that case, who was an employee of the
village panchayat, by calculating 10 years of service rendered by him in the
village panchayat, for the purpose of countering the pension service.
6.The learned counsel appearing for the petitioner, Mrs.Nisha Banu relied
upon the judgment rendered in W.P.No.5017 of 2008, dated 02.04.2009 wherein
similar order was passed. Therefore, the learned counsel argued that service
rendered by the petitioner as part time employee as Panchayat Clerk from
01.06.1972 to 30.12.1990 has to be taken into consideration and as per the
G.O.Ms.No.437, 50% of that period is to be taken into consideration and if so
construed, the petitioner is eligible for pension.
7.Mr.P.Gunasekaran, the learned counsel appearing for the 5th respondent,
submitted that the contention canvassed by the learned counsel appearing for the
petitioner is against the provisions of Rule 11 of the Tamil Nadu Pension Rules
1928. The learned counsel appearing for the 5th respondent, Mr.Gunasekaran,
contended that as per Rule 11 of the Tamil Nadu Pension Rules, in case of
Government servant retiring on or after 1.10.1969 rendering continuous,
temporary or officiating service in a pensionable post, whether rendered in a
regular capacity or not, shall count in full as qualifying service, even if it
is not followed by confirmation. However, Government subsequently amended Rule
11 of the Tamil Nadu Pension Rules, 1978 through G.O.Ms.No.283, Finance
(Pension) Department, dated 15.04.1996 whereby sub rule (2) was added to Rule
11, which states that, 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 brake.
[v]subject to the above conditions being fulfilled the weighage for past
Service paid from contingencies shall be limited to the period after the January
1961 for which authentic records of Service may be available.
[vi]Pension or revised pension admissible as the case shall be paid from
the 23rd June 1998.
8.Further as per Rule 43(2) of Tamil Nadu Pension Rules 1978, a Government
Servant retiring in accordance with the provisions of these Rules, after
completing qualifying Service of not less than 10 years, shall be eligible for
pension.
9.Further he submitted that Government had clarified, in letter
No.10963/Pension/2000-1 Finance (Pension)Department, dated 04.10.2000 that
Service rendered in Village Panchayats, Panchayat Boards cannot be counted as
qualifying Service for pension. In view of the Government’s above
clarification, the action of this respondent in not reckoning the Service
rendered under Village Panchayat from 1.1.91 to 10.08.99 is in order and as per
rules.
10.Therefore, the learned counsel appearing for the 5th respondent
submitted that the Service rendered by the petitioner as Panchayat Clerk was on
a part time basis and hence, dose not satisfy the 1st condition of the amended
Rule 11(2) of Tamil Nadu Pension Rules, 1978, whereby the Service paid from
contingencies shall be in a job involving whole time employment and not part
time for a portion of the day.
11.According to me, there is no need to go into the earlier judgments
cited by the learned counsel appearing for the petitioner or objections raised
by the learned counsel appearing for the 5th respondent. It has been brought to
my notice by Mrs.Nisha Banu, the learned counsel appearing for the petitioner
that G.O.Ms.408, Finance (Pension), dated 25.08.2009, by which the service of
those employees, who were employed on consolidated pay or on daily wages or on
honorarium were regularised earlier to 01.04.2003 are also entitled to
calculate 50% of the Service in that category for calculating pension benefits
and therefore, as per the aforesaid G.O., the petitioner is entitled to
calculate 50% of the Service viz., during the period from 1.6.1972 to 31.12.90.
12.Further, it is seen from the aforesaid G.O. that the said G.O. was
issued having regard to Rule 11(2) of of the Tamil Nadu Pension Rules 1978 and
Tamil Nadu Pension Rule 1978 was suitably amended as per the said G.O.
Therefore, as per the earlier judgments of this court and as per the
G.O.Ms.No.408, dated 25.08.2009, the petitioner is entitled to calculate his 50
% of the Service from 01.06.1972 to 30.12.1990 and if so calculated, the
petitioner’s Service would be more than 10 years and is eligible to be
considered for pension.
13.Hence, the impugned order passed by the respondents 4 and 5 are set
aside and accordingly, the writ petition is allowed. Consequently, connected
Miscellaneous Petition is closed. No costs. The respondents are directed to
consider the case of the petitioner and sanction pension in the light of the
judgment of this court and also on the basis of G.O.Ms.408, Finance (Pension),
dated 25.08.2009,
er
To
1.The Secretary,
Government of Tamil Nadu,
Rural Development Department,
Panchayat Raj,
Chennai-9.
2.The Director of Rural Development
and Panchayat Raj,
Panagal Building,
Saidapet,
Chennai-15.
3.The District Collector,
Thanjavur District.
4.The Block Development Officer,
Thanjavur.
5.The Accountant General,
No.361, Anna Salai,
Chennai-600 018.
6.The Additional Government Pleader,
Madurai Bench of Madras High Court,
Madurai.
