{"id":183020,"date":"2006-09-04T00:00:00","date_gmt":"2006-09-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-sampath-vs-the-state-of-tamil-nadu-on-4-september-2006"},"modified":"2019-03-03T16:08:35","modified_gmt":"2019-03-03T10:38:35","slug":"k-sampath-vs-the-state-of-tamil-nadu-on-4-september-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-sampath-vs-the-state-of-tamil-nadu-on-4-september-2006","title":{"rendered":"K. Sampath vs The State Of Tamil Nadu on 4 September, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
K. Sampath vs The State Of Tamil Nadu on 4 September, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n\nDated : 04\/09\/2006\n\n\nCoram\nThe Honourable Mr.Justice N.PAUL VASANTHAKUMAR\n\n\nW.P(MD)No.4921 of 2006\nand\nM.P.Nos.1 & 2\n\n\nK. Sampath\t\t\t...\t\tPetitioner\n\n\nVs.\n\n\n1.\tThe State of Tamil Nadu,\n\trep. By the Secretary to Government,\n\tRural Development Department,\n\tSecretariat,\n\tChennai - 9.\n\n2.\tThe Director of Rural Development,\n\tRural Development Directorate,\n\tSaidapet,\n\tChennai - 15.\n\n3.\tThe District Collector,\n\tSivagangai District,\n\tSivagangai.\t\t...\t\tRespondents\n\n\n\n\tWrit petition filed under Article 226 of Constitution of India, praying\nthis Court to issue a writ of Certiorarified Mandamus to call for the records on\nthe file of the first respondent in connection with the order passed by him in\nhis proceedings Lt.No.36439\/E4\/2005 dated 12.12.2005 and quash the same and\ndirect the respondents to count half of the non-provincialised service of the\npetitioner from 1.3.1985 to 1.1.2000 for the purpose of repayment of all the\nterminal benefits including the commutation of pension, pension arrears and\nmonthly pension with 18% interest per annum.\n\n\n!For Petitioner\t\t...\tMrs.J.Nishabanu\n\n\n^For Respondents \t...\tMr.D.Sasikumar\n\t\t\t\tGovernment Advocate\n\n\n:ORDER\n<\/pre>\n
\tPrayer in the writ petition is to call for the records on the file of the
\nfirst respondent in connection with the order passed by him in his proceedings
\nLt.No.36439\/E4\/2005 dated 12.12.2005 and quash the same and direct the
\nrespondents to count half of the non-provincialised service of the petitioner
\nfrom 1.3.1985 to 1.1.2000 for the purpose of repayment of all the terminal
\nbenefits including the commutation of pension, pension arrears and monthly
\npension with 18% interest per annum.\n<\/p>\n
\t2.\tPetitioner was selected and appointed to the post of part-time
\nPanchayat Assistant on 1.3.1985 and was regularly appointed as such with effect
\nfrom 1.1.1991.  On 1.1.2000, he was appointed as Junior Assistant and then
\npromoted to the post of Assistant on 14.3.2004.  He retired from the service on
\n31.5.2005 and applied for pension, counting the period during which he served as
\nPanchayat Assistant from 1.3.1985 to 1.1.2000.  But, the second respondent
\nrejected the request by order dated 6.4.2005 relying upon the Government Letter
\nNo.10973\/Pension\/2000-1, Finance Department, dated 4.10.2000.  Petitioner
\nchallenged the said order in W.P.No.6537 of 2005 and this Court by order dated
\n25.7.2005 passed the following order.\n<\/p>\n
\t“4.\tPetitioner’s grievance is that G.O.Ms.No.118, Finance (Pension)
\nDepartment, dated 14.02.1996, has not been taken for consideration, while
\npassing the impugned order.\n<\/p>\n
\t5.\tWithout going into the merits of the contention of the petitioner,
\nit is sufficient to direct the first respondent to consider the claim of the
\npetitioner in the light of the said G.O., and pass appropriate orders, in
\naccordance with law and on merits, within a period of eight weeks from the date
\nof receipt of a copy of this order.”\n<\/p>\n
Thereafter the first respondent passed the impugned order in letter
\nNo.36439\/E4\/2005, dated 12.12.2005 stating that G.O.Ms.No.118 Finance (Pension)
\nDepartment, dated 14.2.1996 cannot be applied in favour of the petitioner in
\nview of the Government Letter No.10973\/Pension\/2000-1, Finance Department, dated
\n4.10.2000, wherein it is clarified that the service rendered under the Village
\nPanchayat Boards cannot be counted as qualifying service for the purpose of
\ncalculating pension.  The said order is challenged in this writ petition.\n<\/p>\n
\t3.\tThe learned counsel appearing for the petitioner argued that the
\npetitioner is having more than 20 years of total service and the period from
\n10.3.1985 to 1.1.2000 is bound to be counted for the purpose of arriving at
\npension apart from the period from 1.1.2000 to 31.5.2005.  The learned counsel
\nfurther argued that the respondents have no jurisdiction to rely upon the
\nGovernment letter dated 4.10.2000 in the impugned order for rejecting the claim
\nof the petitioner since G.O.Ms.No.118 dated 14.2.1996  creates a right in favour
\nof the petitioner to count 50% of the service in the Village Panchayt as
\npensionable service and if the same is counted, petitioner will be having more
\nthan 10 years of pensionable service till his retirement on 31.5.2005 and
\ntherefore the respondents are bound to sanction pension from 1.6.2005.\n<\/p>\n
\t4.\tThe learned Government Advocate, on instructions submitted that
\nG.O.Ms.No.118 dated 14.2.1996 cannot be applied for the petitioner in view of
\nthe clarification issued by the Government in its Letter dated 4.10.2000 and
\ntherefore the impugned order rejecting the request of the petitioner to count
\nhis service in the Village Panchayat is illegal and valid.\n<\/p>\n
\t5.\tI have considered the rival submissions made by the learned counsel
\nappearing for the petitioner as well as the learned Government Advocate for the
\nrespondents.\n<\/p>\n
\t6.\tThe point in issue is whether the petitioner is having more than 10
\nyears of pensionable service for sanction of pension and whether he is entitled
\nto get sanction of pension from 1.6.2005.\n<\/p>\n
\t7.\tIt is the admitted case that the petitioner was appointed as a part-
\ntime Panchayat Assistant from 1.3.1985 and was regularly appointed in the said
\npost with effect from 1.1.1991 .   He was promoted as Junior Assistant on
\n1.1.2000, further promoted as Assistant from 14.3.2004 and retired as  Assistant
\non 31.5.2005.  Thus, admittedly, the period of service from 1.1.2000 to
\n31.5.2005 is pensionable service.\n<\/p>\n
\t8.\tG.O.Ms.No.118 Finance (Pension) Department, dated 14.2.1996 reads as
\nfollows,
\nGOVERNMENT OF TAMIL NADU
\nFINANCE (PENSION) DEPARTMENT<\/p>\n
G.O.Ms.No.118\t                 Dated: 14th February, 1996<\/p>\n
Sub\t:\tPENSION – Counting of half of the service under  \t\tnon-
\npensionable establishment along with \t\t\tregular service under
\npensionable
\n\t\testablishment for pensionary benefits –\n<\/p>\n
\t\tOrders Issued.\n<\/p>\n
Read\t:\t1) G.O.Ms.No.437, Finance (Pension),
\n\t\t     dated 23.6.1988\n<\/p>\n
\t\t2) G.O.Ms.No.955, Finance (Pension),
\n\t\t     dated 23.12.1991.\n<\/p>\n
Order:\n<\/p>\n
\tIn the Government Order first read above, orders have been issued to count
\nhalf of the service rendered under contingent establishment along with regular
\nservice for pensionary benefits subject to certain conditions in respect of
\nGovernment employees and employees of local bodies and aided educational
\ninstitutions.\n<\/p>\n
\t2)\tThe Government have examined the question of extending the
\nconcession ordered in the Government first read above to the case of Government
\nemployees who were borne on non-pensionable establishment and subsequently
\nbrought into pensionable establishment and have decided to count half of the
\nservice rendered under non-pensionable establishment along with service under
\npensionable establishment for pensionary benefits.  They accordingly direct that
\nhalf of the service rendered by State Government employee under non-pensionable
\nestablishment shall be allowed to be counted for pensionary benefits along with
\nregular service under pensionable establishment subject to the following
\nconditions.\n<\/p>\n
(a)\tService under non-pensionable establishment \tshould have been in a job
\ninvolving whole time \temployment.\n<\/p>\n
(b)\tThe service under non-pensionable establishment \tshould have been on
\ntime scale of pay.\n<\/p>\n
(c)\tThe service under non-pensionable establishment \tshould have been
\ncontinuous and followed by \tabsorption in pensionable establishment without a
\n\tbreak.\n<\/p>\n
\t3.\tThese orders shall take effect from the date of this Government
\nOrder.  In respect of those who retired prior to the date of this order,
\neligible pension or revised pension, as the case may be shall be paid from the
\ndate of this order, and that there can be no claim for arrears in any case for
\nthe period upto the date of this order.\n<\/p>\n
\t\t(BY ORDER OF THE GOVERNOR)<\/p>\n
\t\t\t\tP.V.RAJARAMAN,
\n\t\t\t\tSecretary to Government”\n<\/p>\n
A bare reading of the above Government Order contemplates three conditions to
\ncount the half of the service rendered by the State Government employees under
\nnon-pensionable establishment, that is, (1)  Service under non-pensionable
\nestablishment should have been in a job involving whole time employment;  (2)
\nThe service under non-pensionable establishment should have been on time scale
\nof pay;  and (3)  The service under non-pensionable establishment should have
\nbeen continuous and followed by absorption in pensionable establishment without
\nbreak.  Further, the said Government Order nowhere states that the non-
\npensionable service rendered by a person in Village Panchayat will not be
\ncounted for pension.  On the contrary the said Government Order is general in
\nnature, which also states that the same is applicable to the Government
\nemployees, employees of Local Bodies and Aided Educational Institutions.
\nVillage Panchayat is admittedly a Local Body.  Therefore, 50% of the service
\nrendered by the petitioner in the Village Panchayat on full time basis with time
\nscale of pay from 1.1.1991 to 1.1.2000 is countable  for the purpose of
\ncalculating pension under G.O.Ms.No.118 dated 14.2.1996.  Thus the petitioner is
\nhaving five more years of pensionable service upto 1.1.2000 and by adding the
\nsame with the admitted pensionable service from 1.1.2000 to 31.5.2005, the total
\npensionable service comes to 10 years and 5 months.  Hence the petitioner
\nsatisfies the minimum qualifying service of 10 years to get sanction of pension
\nfrom 1.6.2006.  Rule 43(2) of the Tamil Nadu Pension Rules, 1978 contemplates
\nthat the employees having minimum ten years of qualifying service are eligible
\nto get pension.\n<\/p>\n
\t9.\tThe reason stated in the impugned order stating that in view of the
\nsubsequent clarification issued by the Government by letter dated 4.10.2000
\nclarifying G.O.Ms.No.118 dated 14.2.1996, is totally illegal since the
\nGovernment order issued with the executive power of the Government in the name
\nof the Governor cannot be clarified by a letter of the Secretary to the
\nGovernment.  Admittedly no amendment to G.O.Ms.No.118 dated 14.2.1996 is issued
\nand therefore the Government order will prevail over the subsequent Government
\nletter.\n<\/p>\n
\t10.(a)   In the decision reported in (2005) 10 SCC 244 (R.P.Bhardwaj v.
\nUnion of India and others<\/a>)  the issue dealt with was as to whether a letter of
\nthe Central Ministry issued by the Secretary will over ride the Office
\nMemorandum and the Honourable Supreme Court held that the Government letter
\ncannot be acted upon unless a new Office Memorandum is issued.  The relevant
\nportion of para 8 is extracted hereunder,<\/p>\n
\t“………  We have already noticed that the OM dated 19.7.1989 contained
\ninstructions to be noted and followed by all concerned.  That position was
\nprevailing when the proposal by means of letter dated 23.11.1989 was mooted.  It
\nwas not yet issued as OM for compliance by all concerned as was done in respect
\nof the OM dated 19.7.1989.  In our view, it was still at a premature stage and
\nbefore being final so as to be circulated by the Government of India for being
\nfollowed by the authorities and the departments and all concerned, it seems to
\nhave been acted upon by the Service Commission against the OM which was in
\noperation.  Even if any implied approval is inferred by the Public Service
\nCommision, it would be of no consequence since then too it would not be anything
\nmore than an approval of a proposal.  An approved proposal would not replace an
\nOM issued by the Government of India.  Even after approval the Government may
\nnot issue any OM.  The Commission wrongly acted upon the mere proposal.”\n<\/p>\n
\t(b)\tIn an unreported decision in W.P.No.1713 of 1988, etc., batch by
\ncommon order dated 7.11.1990, this Court considered similar issue as to whether
\nthe Government letter will prevail over the Government Order or not and held
\nthat the Government Order having been authenticated and expressed to be taken in
\nthe name of the Governor, has the sanctity of an order issued under Article 166
\nof the Constitution of India and the Government letter issued subsequently
\ncannot supersede the earlier Government Order.\n<\/p>\n
\t(c)\tThis Court in the decision reported in 2004 WLR 805 (P.Jeya v. Union
\nof India & Others)<\/a>  considered a similar issue as to whether the Government
\nletter will prevail over the Government Order.  The relevant portion of para 34
\nreads as follows,
\n\t“In the given case, Government Order has been passed in exercise of power
\nunder Article 162 of the Constitution of India and it is an executive order,
\nwhich could be issued only in the name of the Governor.  The executive order
\nissued in the name of the Governor cannot be modified by another executive
\norder, not being issued in the name of the Governor.    ……”\n<\/p>\n
\t11.   By virtue of issuance of G.O.Ms.No.118 Finance (Pension) Department,
\ndated 14.2.1996, petitioner has got the right to count his 50% of service prior
\nto his appointment from 1.1.2000 for pension.  Under the Government letter dated
\n4.10.2000, the said benefit is sought to be taken away.  In view of my earlier
\nfinding that the Government letter cannot over-ride the Government Order, the
\npetitioner is entitled to succeed.  Even otherwise, on any ground if the
\nGovernment letter is applicable, it can be applied only prospectively to the
\npersons who have joined service after 4.10.2000 in view of the decision of the
\nHon’ble Supreme Court reported in AIR 1972 SC 1546 (State of Haryana v. Shamsher
\nJang) wherein in para 7 it is held thus,
\n\t“7.\tIt may be noted that herein we are dealing only with those who were
\npromoted from the cadre of clerks in the Secretariat.  The first question
\narising for decision is whether the Government was competent to add by means of
\nadministrative instructions to the qualifications prescribed under the Rules
\nframed under Art. 309.  The High Court and the courts below have come to the
\nconclusion that the Government was incompetent to do so.  This Court has ruled
\nin Sant Ram Sharma v. State of Rajasthan, (1968) 1 SCR 111 = (AIR 1967 SC 1910)
\nthat while the Government cannot amend or supersede the statutory rules by
\nadministrative instructions, if the rules are silent on any particular point,
\nthe Government can fill up the gaps and supplement the rules and issue
\ninstructions not inconsistent with the rules already framed.  Hence we have to
\nsee whether the instructions with which we are concerned, so far as relate to
\nthe clerks in the Secretariat amend or alter the conditions of service
\nprescribed by the rules framed under Art.309.  Undoubtedly the instructions
\nissued by the Government add to those qualifications.  By adding to the
\nqualifications already prescribed by the rules, the Government has really
\naltered the existing conditions of service.  The instructions issued by the
\nGovernment undoubtedly affect the promotion of concerned officials and therefore
\nthey relate to their conditions of service.  The Government is not competent to
\nalter the rules framed under Art.309 by means of administrative instructions.
\nWe are unable to agree with the contentions of the State that by issuing the
\ninstructions in question, the Government had merely filled up a gap in the
\nrules.  The rules can be implemented without any difficulty.  We see no gap in
\nthe rules.”\n<\/p>\n
The same view is taken in the decision reported in AIR 1999 SC 59
\n(Chandraprakash Madhavrao Dadwa v. Union of India)<\/a> wherein in para 53 the
\nHonourable Supreme Court held as follows,
\n\t“53.  To put it in a nutshell, the change in the essential qualification
\nmade in 1990 or 1998 or the additional functions now required to be performed by
\nthe appellants could not retrospectively affect the initial recruitment of
\nappellants as Data Processing Assistants nor their confirmation in 1989.
\nRecruitment qualifications could not be altered or applied with retrospective
\neffect so as to deprive the recruitees of their right to the posts to which they
\nwere recruited nor could it affect their confirmations.”\n<\/p>\n
\t12.  Hence, the Government letter dated 4.10.2000 cannot be made
\napplicable to the petitioner as he has been given regular appointment from
\n1.1.2000 and if it is applied, it will certainly affect the petitioner, which
\nwould amount to alteration of his conditions of service, more particularly in
\nreceiving his pension.\n<\/p>\n
\t13.  Since the petitioner satisfies that he is having 10 years and 5
\nmonths of pensionable service, I hold that the impugned order is unsustainable
\nand the respondents are bound to sanction pension to the petitioner from
\n1.6.2005.\n<\/p>\n
\t14.  In the result, the impugned order dated 12.12.2005 is set aside and
\nthe respondents are directed to sanction pension to the petitioner from
\n1.6.2005.  The monthly pension payable to the petitioner shall be sanctioned and
\npaid within a period of two months and the arrears of pension from 1.6.2005
\nshall be paid within three months from the date of receipt of copy of this
\norder.\n<\/p>\n
\tThe writ petition is allowed with the above directions.  No costs.
\nConnected miscellaneous petitions are closed.\n<\/p>\n
vr<\/p>\n
To\n<\/p>\n
1.\tThe Secretary to Government, Rural Development Department,
\n\tSecretariat,  Chennai – 9.\n<\/p>\n
2.\tThe Director of Rural Development, Rural Development Directorate,
\n\tSaidapet,  Chennai – 15.\n<\/p>\n
3.\tThe District Collector, Sivagangai District,  Sivagangai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court K. Sampath vs The State Of Tamil Nadu on 4 September, 2006 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 04\/09\/2006 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P(MD)No.4921 of 2006 and M.P.Nos.1 & 2 K. Sampath … Petitioner Vs. 1. The State of Tamil Nadu, rep. By the Secretary to […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-183020","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nK. 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