V. Jesudoss v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 8.7.2009CORAMTHE HON'BLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HON'BLE MR.JUSTICE RAJA ELANGOWrit Appeal No.1651 of 20001. The State of Tamil Nadu rep. by its Secretary to Government School Education Department Fort St. George, Chennai-9.2. Additional Assistant Elementary Educational Officer Chitlapakkam Chennai 64...Appellants/RespondentsVs.1. V.Jesudoss2. Accountant General (Accounts & Entitlements) Tamil Nadu, Chennai-18. ..Respondents/Petitioner & 2nd RespondentAppeal filed under Clause 15 of the Letters Patent against theorder of the learned single Judge dated 4.1.2000 made in W.P.No.5483of 1999 on the file of this Court, petition under Article 226 of theConstitution of India praying to issue a Writ of CertiorarifiedMandamus calling for the records pertaining to the order passed bythe 2nd respondent in his proceedings pen.24/III/J.10-151/98-99/ADK/120 dated .9.1998 and quash the same and direct therespondents to sanction pension to the petitioner.For Appellants : Mr.D.Sreenivasan, Addl.G.P.For Respondent-1 : Mr.S.ManiFor Respondent-2 : Mr.V.Vijay Shankar https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T(Delivered by S.J.MUKHOPADHAYA,J.)The first respondent, V.Jesudoss, was a teacher inM.C.C.R.S.L.Primary School, Tambaram. After 15 years of service, heresigned on 31.10.1977. He requested to sanction pension, which wasrejected by Accountant General (Accounts and Entitlements), TamilNadu, Madras, by proceedings in Pen.24/III/J.10-151/98-99/ADK/120dated September 1998. The first respondent was informed that thepension scheme of teaching staff of aided school was introduced byG.O.Ms.No.1109, Education dated 31.5.1958 and the crucial date wasfixed as 31.5.1958. As he resigned his post on 31.10.1977, which isafter the crucial date, i.e. after the introduction of the pensionscheme, he is stated to have lost his past service and thereby, thepensionary benefits also.2. The first respondent challenged the same before this Court inW.P.No.5483 of 1999. The learned Judge, by the impugned order dated4.1.2000, taking into consideration the unreported order of thisCourt dated 14.3.1997 made in W.P.No.3066 of 1995, allowed the writpetition and directed the appellants to sanction pension to the firstrespondent within six months, without interest. But, on failure, itwas ordered to pay interest at the rate of 6% from the date of thisorder to till the date of payment.3. The learned Additional Government Pleader appearing on behalfof the appellants/State referred to Rule 23 of the Tamil Nadu PensionRules, 1978 (hereinafter referred to as "Pension Rules") andsubmitted that the resignation from the post entails forfeiture ofthe past service. According to him, the past service, havingforfeited, the first respondent is not entitled to pension, which isdepending on the service rendered. It is further submitted that thefirst respondent has no continuous service for 15 years.4. Per contra, the stand taken by the learned counsel for thefirst respondent is that even in cases of resignation after thecrucial date, in a number of hard cases of particular individuals,the Government has relaxed the stipulation and allowed retirementbenefits to the resigned teachers also. He placed reliance on aproceedings dated 21.1.1983 issued by the department of Education,Science and Technology, Government of Tamil Nadu.5. We have heard the learned counsel for the parties and perusedthe records. https://hcservices.ecourts.gov.in/hcservices/

6. The only question to be determined in this case is whetherthe resignation of the first respondent would come in his way to getpension under the Pension Rules and whether the first respondent isentitled to pension for having rendered service for about 15 years. 7. It is now a settled law that pension is neither a bounty nora matter of grace depending on the sweet will of the employer. Itcreates a vested right subject to the rules which are statutory incharacter. Pension is not an ex-gratia payment. But, it is apayment for the past service rendered. It is a social welfaremeasure rendering socio-economic justice. It is an assurance of theemployer that in the old age, the employee would not be left in thelurch [D.S.Nakara & Others v. Union of India - 1983 (1) LLJ 104 =(1983) 1 SCC 305 = AIR 1983 SC 130].8. So far as the Pension Rules, 1978 is concerned, Chapter IIIdeals with qualifying service (Rule 11). Rule 12 stipulatesconditions subject to which service qualifies. Rule 25 relates tocondonation of interruption in service.The forfeiture of service is stipulated under Rule 21 in case ofdismissal or removal, which reads as under:Rule 21: Forfeiture of service on dismissal or removal.-Dismissal or removal of a Government servant from aservice or post entails forfeiture of his past service.As far as the resignation is concerned, it also stipulatesforfeiture of service except in certain condition under Rule 23 andquoted here under:Rule 23: Forfeiture of service on resignation.- (1) Resignationfrom service or post entails forfeiture of past service.Provided that a resignation shall not entailforfeiture of past service if it has been submitted totake up with proper permission, another appointment,whether temporary or permanent, under the Governmentwhere service qualifies.(2) Interruption in service in a case falling underthe proviso to sub-rule (1), due to the two appointmentsbeing at different stations, not exceeding the joiningtime permissible under the rules of transfer, shall becovered by grant of leave of any kind due to theGovernment servant on the date of relief or by formalcondonation to the extent to which the period is notcovered by leave due to the Government servant." https://hcservices.ecourts.gov.in/hcservices/

9. Admittedly, the first respondent resigned from service on31.10.1977. The said resignation was accepted by the competentauthority. It is not alleged that any proceeding was initiatedagainst the first respondent or was to be initiated at that stage,which was the reason for submission of resignation by the firstrespondent. No misconduct or dereliction of duty, while he was inservice, was alleged against him. In such case, whether it can bestated that the resignation in the case of first respondent alsoentails forfeiture of past service. 10. Under proviso to Rule 23, it would be evident that theresignation shall not entail forfeiture of past service if it hasbeen submitted to take up with proper permission for anotherappointment. It is not clear that if a person submits a simplicitorresignation and against whom no proceedings is pending or allegationis pending and if he wants to take rest in his life or is sufferingfrom ailment, whether in such case, resignation will amount toforfeiture of past service. In such case where the resignation issimplicitor, not because of any departmental proceeding or anyallegation and has been accepted by the competent authority, if theyare equated with those dismissed or removed from service, accordingto us, it will render two unequal as equal and will be violative ofArticle 14 of the Constitution of India. 11. In the aforesaid background, to uphold Rule 23 as notviolative of Article 14 of the Constitution of India, it is to beheld that resignation simplicitor will not entail forfeiture of pastservice; only in those cases where a person submits resignationbecause of any allegation or proceedings which otherwise would haveattracted punishment like dismissal or removal from service, theprovisions of Rule 23 will be attracted forfeiting the past service.12. This will also be evident from the Government of Tamil Naduproceedings in R.Cis.No.13053/Pension/13/83 dated 21.1.1983. By thesaid proceedings, the crucial date from which staff of non Governmenteducational institution are entitled for pension was fixed as5.6.1991. It was ordered that those who have resigned prior to5.6.1991 would not be entitled to the benefit. At paragraph 4 of theproceedings dated 21.1.1983, the Government of Tamil Nadu made thefollowing provision:"Even in cases of "resignation" after the crucial dates,the Government have in a number of hard cases ofparticulars individuals relaxed the stipulation andallowed retirement benefit to "resigned" teachers also.13. By G.O.Ms.No.396 dated 12.9.1997, in view of the order ofthe High Court, the Government of Tamil Nadu considered one of suchcases, viz. one Mr.TAP.Srinivasan, who resigned from service prior to https://hcservices.ecourts.gov.in/hcservices/

5.6.1991 and was allowed the pensionary benefit. It would be, thus,evident that in case of resignation of service, it will notautomatically forfeit the service of a person, otherwise, it wouldnot have allowed the State Government to pay the pension. But, suchinterpretation is to be given only in case a person resigns fromservice during the pendency of a departmental proceeding or becauseof an allegation pending consideration.14. In fact, the cut off date, viz. 5.6.1991 fixed by the StateGovernment in the matter of granting retirement benefits to theemployees who have resigned from service fell for considerationbefore this Court in W.P.No.3066 of 1995. By order dated 14.3.1997,P.Sathsivam, J, while considering the identical contention, held asunder:"With regard to the cut-off date as relied upon by thelearned Government Advocate Mr.D.Krishnakumar hasbrought to my notice a decision of Lakshmanan,J., inP.M.Subramanian Vs. The State of Tamil Nadu and Another1992 Writ Law Reporter 691. In the said decision, thelearned Judge relying upon earlier decision of SupremeCourt as well as some of the decisions of this Court hasheld that the date of retirement is irrelevant and therevised scheme would be operative from the datementioned in that scheme and would bring under itsumbrella all existing pensioners who retired prior tothe specified date and their pension would be computedafresh and would be payable in future commencing fromthe specified date. Even though the liberalised pensionscheme has been introduced in the year 1958, in view ofthe subsequent clarifications by way of variousGovernment orders as rightly pointed out by Lakshmanan,J., following the decision of the Supreme Court reportedin 1983 1 LLJ 104, I am of the view that the date ofretirement is irrelevant. When the object of theGovernment is to give pension to all eligible andqualified person or persons, the date of retirement isirrelevant. Under these circumstances, as already stated the petitioner hadqualifying service i.e. 10 years 9 months and 18 days,and therefore, the petitioner is entitled to succeed inthe present writ petition."15. In view of the observation made by us and the decision ofthis Court as noticed above, we find no ground made out to interferewith the order made by the learned single Judge. We are not inclinedto accept that the first respondent having resigned from service, hisservices stood forfeited for the purpose of pension. So far as the https://hcservices.ecourts.gov.in/hcservices/ question of quantum of payment of pension is concerned, we areleaving that matter open to the competent authority, who has tocalculate the period of service for calculating the pension and paythe admitted pensionary benefit to the first respondent in terms withthe order passed by the learned single Judge.The writ appeal thus stand disposed of with the aforesaidobservation. There shall be no order as to costs. CMP Nos.14136 of2000 and 20816 of 2001 are closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarkplTo1. The Secretary, Government of Tamil Nadu, School Education Department Fort St. George, Chennai-9.2. The Additional Assistant Elementary Educational Officer, Chitlapakkam Chennai 64.3. The Accountant General (Accounts & Entitlements) Tamil Nadu, Chennai-18. 1 cc To The Government Pleader, SR.29767.1 cc To Mr.V.Vijay Shankar, Advocate, SR.29857.W.A.No.1651 of 2000. BKY(CO)RVL 23.07.2009