High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 09-01-2009CORAM:THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIANW.P.Nos.276 to 280 of 2009 and W.P.Nos.287 to 293 of 2009M.Annai Muthu.. Petitioner in W.P.No.276 of 2009P.K.Kandasamy.. Petitioner in W.P.No.277 of 2009S.Sengottaiyan.. Petitioner in W.P.No.278 of 2009N.Kolandavelu.. Petitioner in W.P.No.279 of 2009K.Thiyagarajan.. Petitioner in W.P.No.280 of 2009S.Arumugam.. Petitioner in W.P.No.287 of 2009R.Murugesan.. Petitioner in W.P.No.288 of 2009M.Palaniappan.. Petitioner in W.P.No.289 of 2009R.Ponnusamy.. Petitioner in W.P.No.290 of 2009M.Chidambaram.. Petitioner in W.P.No.291 of 2009R.Rajamanikam.. Petitioner in W.P.No.292 of 2009R.Subbaiyan.. Petitioner in W.P.No.293 of 2009Vs.1.State of Tamil Nadu rep., by Secretary to Government, Revenue Department, Fort St. George, Chennai-600 009.2.The Principal Commissioner and Commissioner of Revenue Administration, Chennai-600 005.3.The Revenue Divisional Officer, Tiruchengode.4.The District Collector, Namakkal.5.The Principal Accountant General (A. & E.), Tamil Nadu, 361, Anna Salai, Chennai-600 018... Respondents in all the W.PsThe writ petition is filed under Article 226 of theConstitution praying for the issue of a Writ of Mandamus,directing the respondents herein to refix the pension and otherretirement benefits and to revise the pensionary benefits bytaking into account the period from 26.8.1968 in W.P.276/2009,(02.2.1973 in W.P..277/2009) (30.3.1979 in W.P.278/2009)(16.09.1974 in W.P.No.279/2009) (7.7.1969 in W.P.280/2009)(24.7.1975 in W.P.287/2009) (24.2.1975 in W.P.288/2009) (9.4.76 inW.P.289/2009) (14.10.77 in W.P.290/2009) 21.4.78 in W.P.291/2009 https://hcservices.ecourts.gov.in/hcservices/

11.9.73 in W.P.292/09) 7.6.74 in W.P.293/2009 respectively. i.e.,the date of initial appointment of the petitioner as VillageKarnam/Munsif and to consequently grant all consequential benefitsalong with arrears thereof with interest on the delayed payment tothe petitioner.For Petitioner in all WPs : Mr.M.RaviFor Respondents in all WPs: Mrs.S.Litta Srinivasan, Government Advocate. COMMON ORDERThe petitioners in all these writ petitions were originallyemployed as "Village Officers", in various categories such asMunsifs, Karnams etc. These part time posts were abolished witheffect from 14.11.1980 and a new category of full time GovernmentServants known as "Village Administrative Officers" was created in1982. The petitioners, who lost their part time employment,consequent on the abolition, were appointed to the newly createdpost and all of them have now retired on reaching the age ofsuperannuation. 2. They have now come up with the present batch of writpetitions seeking a Mandamus to the respondents to refix theirpension and retirement benefits by taking into account, theservices rendered from the date of their first appointment in theerstwhile post. 3. I have heard Mr.M.Ravi, learned counsel appearing for thepetitioners in all these writ petitions, Mrs.Litta Srinivasan,learned Government Advocate took notice for the respondents.4. The claim now made by the petitioners, has a historicalbackground. But before adverting to the same, it is necessary toreduce into a nutshell, the details of employment of thepetitioners, for a better understanding of the claim made by them.These details are presented in a tabular form, for easyappreciation, as follows:-W.P.No.PetitionerNamePeriod ofservicerenderedbefore14.11.1980 asKarnam etc.Date offreshappointmentafterabolition ofold postDate ofretirement276/2009M.Annai MuthuFrom26.8.1968 to14.11.1980 asKarnam (12years)From 1.1.1991to 31.7.1997as PanchayatClerk.10/8/9831/12/2001 https://hcservices.ecourts.gov.in/hcservices/ W.P.No.PetitionerNamePeriod ofservicerenderedbefore14.11.1980 asKarnam etc.Date offreshappointmentafterabolition ofold postDate ofretirement277/2009P.K.KandasamyFrom 2.2.1973to 14.11.1980(7 years)24.12.1990as VAO31/12/2001278/2009S.SengottaiyanFrom30.3.1979 to14.11.1980 (1year)23.9.1991 asVAO30/06/2008279/2009N.KolandaveluFrom16.09.1974 to14.11.1980(6 years)7/16/9830/09/2003280/2009K.Thiyagarajan7.7.1969 to14.11 1980(11 years)7/16/9826/4/2002287/2009S.ArumugamFrom24.7.1975 to14.11.1980 (5years)8/4/8230/04/2004288/2009R.MurugesanFrom24.2.1975 to14.11.1980 (5years)8/9/8231/01/2007289/2009M.PalaniappanFrom 9.4.1976to 14.11.1980(4 years)8/9/8230/06/2006290/2009R.PonnusamyFrom14.10.1977 to14.11.1980 (3years)8/9/8231/07/2004291/2009M.ChidambaramFrom21.4.1978 to14.11.1980 (2years)8/10/8230/06/2004292/2009R.RajamanickamFrom11.9.1973 to14.11.1980 (7years)30/8/8231/10/2006293/2009R.SubbaiyanFrom 7.6.1974to 14.11.1980(6 years)8/9/8231/08/20075. As seen from the above tabular form, all the writpetitioners except a few, have rendered sufficient service to earna reasonable amount of pension, even in the newly created post. https://hcservices.ecourts.gov.in/hcservices/ Three of them have rendered less than 10 years of service in thenewly created post, which by itself will not entitle them to anypension. This is why they have come up with the present writpetitions for combining two services viz., (i) the servicesrendered as Village Officers before abolition on 14.11.1980 and(ii) the services rendered as Village Administrative Officersafter fresh recruitment to the newly created category, after 1982.HISTORICAL BACKGROUND:6. Coming to the historical background, the posts of VillageHeadman or Munsif, Village Accountant or Karnam and VillageWatchman, which were part time posts and hereditary in nature,were abolished by the Government of Tamil Nadu by an Ordinanceissued on 13.11.1980, known as Tamil Nadu Abolition of Posts ofPart Time Village Officers Ordinance 1980. It was subsequentlyreplaced by Tamil Nadu Act 3 of 1981. A total of about 23,010posts of Village Officers stood abolished by the Ordinance. 7. The Ordinance and the Act were challenged under Article 32of the Constitution before the Supreme Court. In the course ofhearing of the writ petitions by the Supreme Court, a Memorandumwas filed on behalf of the State Government, to the effect thatall erstwhile Village Officers who possessed minimum generaleducational qualifications (a pass in SSLC) as required by theAbolition Act, will be screened by a Committee and appointed tothe newly created post of Village Administrative Officer,irrespective of their age, but subject to their not having crossedthe age of retirement. The Government also undertook not to makethose persons subject to any test by the Public ServiceCommission, but to appoint them subject only to their physicalfitness and any punishment undergone in the erstwhile post. Afterrecording the aforesaid undertaking given by the Government andissuing certain directions, the Supreme Court upheld the abolitionand dismissed the writ petitions, as seen from its decisionreported in K.Rajendran Vs. State of Tamil Nadu {1982 (2) SCC273}.8. Pursuant to the above, all erstwhile Village Officers whopossessed minimum general educational qualifications as on thedate of abolition and who had not crossed the age ofsuperannuation, were screened by a Committee and were appointed onvarious dates in the year 1982. A direct recruitment through theTamil Nadu Public Service Commission from the open market,followed in 1984 and in so far as they are concerned, the questionon hand is of no relevance, since they were appointed subject toan upper age limit on the date of appointment and subject tostatutory rules. 9. After rehabilitating the first set of candidates whopossessed minimum general educational qualifications as on thedate of abolition, in the year 1982 itself, the Government decidedto rehabilitate another group of candidates, who acquired minimumgeneral educational qualification, subsequent to 20.2.1982.Therefore an order was issued in G.O.Ms. No.1287, RevenueDepartment, dated 6.7.1988. In pursuance of the said GovernmentOrder, many persons who lost their employment consequent upon the https://hcservices.ecourts.gov.in/hcservices/ abolition and who acquired minimum general educationalqualification after 1982, also got appointed, though temporarilyunder Rule 10(a)(i) of the General Rules for Tamil Nadu State andSubordinate Services.10. Many of them who got appointed through the ScreeningCommittees in 1982 and many of them who got appointed temporarilyafter 1988 (in pursuance of G.O.Ms. No.1287), retired from servicein the newly created full time post of Village AdministrativeOfficer, even without completing 10 years of service. The TamilNadu Pension Rules prescribed a qualifying service of 10 years fora person to be eligible at least for minimum pension. Thereforethese persons became statutorily disentitled to any pension,leading to a cry. 11. Considering their plight, the Government came up with anorder in G.O.Ms.No.756, Revenue Department dated 17.8.1993. Theoperative portion of the said Government Order, in paragraph-3,when translated, would read as follows:-"It is hereby ordered that for those who losttheir employment on 14.11.1980 and who gotappointed as Village Administrative Officers on thebasis of eligibility, but who retired withoutcompleting 10 years of service, their period ofservice shall be counted from 14.11.1980, the dateon which they lost their employment, instead offrom the date of joining service as VillageAdministrative Officers and they may be grantedminimum pension accordingly"12. In the meantime, an association of erstwhile VillageOfficers, who could not get rehabilitated, filed an applicationbefore the Tamil Nadu Administrative Tribunal, seeking pensionarybenefits. Though their original application was dismissed, areview application was allowed. When the appeal filed by theGovernment as against the order of the Tribunal was pending in theSupreme Court, the Government issued G.O.Ms.No.828, RevenueDepartment, dated 23.8.1996, sanctioning a minimum pension ofRs.175/- per month together with attendant benefits, to theerstwhile Village Officers who lost their jobs on 14.11.1980, butwho were alive. Similarly, a family pension of Rs.100/- per monthwas sanctioned to the family of the deceased erstwhile VillageOfficers, who lost their jobs on 14.11.1980. Though the saidGovernment Order was passed only in 1996, the minimum pension andfamily pension sanctioned thereunder were to be with effect from5.12.1986.13. In the meantime, some of the erstwhile Village Officerswho lost their jobs on 14.11.1980 and who did not possess theminimum general educational qualification on the date of abolitionand who also did not acquire the qualification after 1982, werealso rehabilitated, by being appointed as Panchayat Assistants.These Panchayat Assistants were also granted the benefit of theminimum pension sanctioned under G.O.Ms. No. 828, by virtue of aclarification issued by the Government on 25.2.1997. https://hcservices.ecourts.gov.in/hcservices/

14. Even after counting the services from the date ofabolition viz., 14.11.1980, some of the Village AdministrativeOfficers did not become eligible for the grant of pensionarybenefits sanctioned under G.O.Ms. No.756, Revenue, dated17.8.1993, since they got appointed after 1982 but retired before1990 (before completing 10 years from 14.11.80). Therefore anotherorder was issued in G.O.Ms. No.1036, Revenue, dated 4.11.1997,whose operative portion reads as follows:-"3. Accordingly, the Government direct thatpensionary benefits ordered in G.O.Ms. No.828,Revenue, dated 23.8.1996 be extended to the Ex.Village Officers who lost their jobs on 14.11.1980and subsequently appointed as VillageAdministrative Officers based on the memorandumsubmitted by the State Government before theSupreme Court but retired without completing thequalifying service of 10 years for getting minimumpension.4. The Government also direct that the saidcategory of Ex. Village Officers are eligible forpension sanctioned in paragraph-3 above, witheffect from 5.12.1986, excluding for the periodthey worked as Village Administrative Officers."15. Later, the minimum pension of Rs.175/- per month andfamily pension of Rs.100/- per month sanctioned underG.O.Ms.No.828, Revenue, dated 23.8.1996, was enhanced to Rs.250/-and Rs.150/- respectively, under G.O.Ms. No.629, Revenue, dated22.7.1998. But the benefits of these orders were not available tothe erstwhile Village Officers who were either on leave or onsuspension, on the date of abolition. Therefore the Governmentissued an order in G.O.Ms.No.753, Revenue, dated 9.9.1998,directing that the benefits of minimum pension and family pensionsanctioned in G.O.Ms.No.828, Revenue, dated 23.8.1996 andG.O.Ms.No.629, Revenue, dated 22.7.1998 be extended to the Ex.Village Officers who were on leave/suspension as on 14.11.1980,the date of abolition. 16. Subsequently, a question arose as to whether the Ex.Village Officers who lost their jobs on 14.11.1980 and who gotappointed temporarily after 1988 by acquiring the minimum generaleducational qualification subsequent to the date of abolition,would also be entitled to count their services (for the purpose ofgrant of minimum pension) from 14.11.1980, as ordered inG.O.Ms.No.756, Revenue, dated 17.8.1993. This question wasanswered in G.O.Ms.No.875, Revenue Department, dated 29.10.1998,as follows:-"3. The Government examined the points raisedby the Deputy Accountant General in paragraph-2above. They issue the following clarifications:-(i) The Ex-Village Officers whose posts wereabolished on 14.11.1980 but possessed theeducational qualification only after 20.2.1982 wereappointed as Village Administrative Officer on 10(a)(i) basis as per G.O.Ms.No.1287, Revenue, dated https://hcservices.ecourts.gov.in/hcservices/

6.7.1988. They are not eligible to receive thebenefit provided in G.O.Ms.No.756, Revenue, dated17.8.1993, which is applicable only to VillageAdministrative Officers who were having minimumgeneral educational qualification on 14.11.1980 andwere appointed through Screening Committee. Personsappointed under 10(a)(i) are eligible for persononly after completing 10 years qualifying servicefrom the date of appointments as VillageAdministrative Officers as per Tamil Nadu PensionRules.(ii) Persons appointed by Screening Committeewere those who possessed minimum generaleducational qualification (S.S.L.C. passed) evenbefore 14.11.1980 (i.e.) at the time of abolitionof the part time posts of Village Officers andappointed as per judgment of Supreme Court. But thepersons appointed under Rule 10(a)(i) of theGeneral Rules are those Ex. Village Officers whodid not possess minimum general educationalqualification at the time of abolition (i.e.)14.11.1980 but obtained the educationalqualification, subsequently to 20.2.1982. They hadto register their names after qualifying themselvesin the District Employment Exchange which wouldsponsor their names for the purpose of appointmentunder Rule 10(a)(i) whenever the Collector callsfor names to fill up the vacancies for the post ofVillage Administrative Officers.(iii) The Village Administrative Officersappointed temporarily as per G.O.Ms.No.1287,Revenue, dated 6.7.1988 under Rule 10(a)(i) of theGeneral Rule after 1988 are eligible to at minimumpension as per pension rules only after completionof 10 years of qualifying service from the date ofappointment till the date of superannuation.(iv) In respect of the Ex-Village Officersappointed as Village Administrative Officers by theScreening Committee, and retired without completingthe period of 10 years of qualifying service,minimum pension only may be sanctioned to them withreference to G.O.(Ms) No.756, Revenue, dated17.8.1993 by calculating the period from 14.11.1980till the date of their retirement instead ofcomputing the date on which they had been re-appointed as Village Administrative Officers. Butthey are not eligible for commutation of pension."17. However, by an order in G.O.Ms.No.121, Revenue, dated13.3.2001, the Ex. Village Officers who lost their jobs on14.11.1980 and who got appointed temporarily after 1988 byacquiring the minimum general educational qualification subsequentto the date of abolition, but who retired without completing thequalifying service of 10 years, were granted the benefit ofspecial pension originally ordered to the Ex-Officers who lost https://hcservices.ecourts.gov.in/hcservices/ their jobs and who never got re-employment. Paragraphs-7 and 8 ofthe said order read as follows:-"7. The Government have after carefulconsideration of the request of the Retired VillageAdministrative Officers and the recommendation ofthe Principal Commissioner and Commissioner ofRevenue Administration, direct that the pensionarybenefits ordered in G.O.(Ms) No.828, Revenue, dated23.8.1996 and enhanced in G.O.(Ms) No.629, Revenue,dated 22.7.1998 be extended to the Ex-VillageOfficers who lost their jobs on 14.11.1980 and whodid not possess minimum general educationalqualification at the time of abolition of the postsof Village Officers (i.e.) 14.11.1980, but obtainedthe educational qualification, subsequent to20.2.1982 and appointed as Village AdministrativeOfficers under Rule 10(a)(i) basis with referenceto G.O.(Ms) No.1287, Revenue, dated 6.7.1988 andretired without completing 10 years of qualifyingservice.8. The Government also direct that the saidcategory of Ex-Village Officers are eligible forpension sanctioned in paragraph-3 above, witheffect from 5.12.1986, excluding for the periodthey worked as Village Administrative Officers."18. To summarise, the vexed question of grant of pension forthe services rendered by the erstwhile Village Officers hasundergone a metamorphosis over the past three decades and step bystep the Government have yielded to the demand, categorywise asfollows:-(a) FOR THOSE WHO NEVER GOT RE-EMPLOYED:- A special pension of Rs.175/- per month laterenhanced to Rs.250/- per month with attendant benefits to allthose living Ex-Village Officers, who lost their jobs on14.11.1980 but who never got re-employed was first sanctioned witheffect from 5.12.1986. For the families of those who were dead, aspecial family pension of Rs.100/- per month later enhanced toRs.150/- per month, was similarly sanctioned.(b) FOR THOSE WHO GOT RE-EMPLOYED IN 1982:- For persons who lost their jobs on 14.11.1980 and whowere appointed as Village Administrative Officers in the year1982, by virtue of possessing minimum general educationalqualification, but who retired without completing 10 years ofservice in the new category, their services were directed to becounted not from the date of their appointment in 1982 butdirected to be counted with effect from 14.11.1980, so that theyget 10 years of qualifying service in the new category to get atleast minimum pension. If these persons did not get 10 years of service, evenafter counting the service from 14.11.1980, then they weredirected to be granted the special pension as per G.O.Ms.No.828, https://hcservices.ecourts.gov.in/hcservices/ Revenue, dated 23.8.1996, with effect from 5.12.1986, butexcluding the period of their non-employment. (c) FOR THOSE WHO GOT RE-EMPLOYED AFTER 1988:- Persons who lost their jobs on 14.11.1980 and who gotappointed temporarily under Rule 10(a)(i) after 1988, by virtue ofacquiring minimum general educational qualifications after thedate of abolition, the special pension granted to those who werenever re-employed, was granted with effect from 5.12.1986,excluding the period of their re-employment on temporary basis.PRESENT CLAIM OF THE PETITIONERS:19. The historical background narrated above would show thatthe erstwhile post of Village Officers (Karnam, Munsif etc.) wasin non-pensionable service and was part time. But the newlycreated post of Village Administrative Officer is in pensionableservice and is full time. It has actually been included as one ofthe categories of posts in the Tamil Nadu Ministerial Service. TheTamil Nadu Pension Rules which govern the issue of grant ofpension, do not provide for clubbing a non-pensionable service anda pensionable service together for the purpose of counting thequalifying service. Rule 3(o) of the Tamil Nadu Pension Rules,defines the expression "qualifying service" as follows:-"(o) 'qualifying service' means permanent orofficiating service (including temporary serviceunder emergency provisions) rendered in a postincluded in a pensionable establishment."20. It is only on account of the difficulty posed by the abovedefinition, coupled with the fact that the abolished post was notin a pensionable establishment that the Government had to pass aseries of orders granting some benefits such as special pensionetc. All the Government Orders narrated in the previous part ofthis judgment, were issued in recognition of the statutoryprovision that the services rendered in a non-pensionableestablishment (as Village Officer) prior to abolition cannot beclubbed together with the services rendered in the pensionableestablishment in the newly created category. Therefore it is toolate in the day to make a claim for clubbing both servicestogether, when thousands of employees have been granted otherbenefits, in confirmation of the fact that the rules do notprovide for clubbing both service together.21. As stated earlier, there is no provision in the Tamil NaduPension Rules, for counting the services rendered by thepetitioners in an establishment that was not pensionable. On thecontrary, the definition of the expression "qualifying service" inthe said Rules makes it clear that the services rendered in a postin a pensionable establishment alone is to be taken as qualifyingservice for the purpose of grant of pension. Therefore a writ ofmandamus as prayed for, contrary to statutory rules cannot begranted. 22. It is true that in the Public Works Department, a part ofthe services rendered by persons in the Contingent Establishment, https://hcservices.ecourts.gov.in/hcservices/ were directed to be counted along with the services rendered inthe regular establishment, after they were brought into regularestablishment, for the purpose of grant of pension. But persons inContingent Establishment were placed on a different footing thanthe erstwhile Village Officers. Therefore the Government exercisedits powers and granted the said benefit. However it is not forthis Court to issue a similar direction, especially in view of thefact that a spate of orders had already been passed by theGovernment, with regard to those who were re-employed in the newlycreated category and who retired before completing 10 years ofservice. 23. There is yet another fallacy in the claim of thepetitioners. They have prayed not merely for clubbing bothservices together but actually for counting even the period ofbreak in service. To recapitulate, the prayer of the petitionersis to count their services from the date of their appointment inthe erstwhile abolished post of Village Officers upto the date oftheir retirement in the newly created post. As seen from thetabular form given above, all the petitioners lost their jobs on14.11.1980, the date of abolition of the post. They were re-employed after a break in service, ranging from 2 to 11 years. Thepetitioners have prayed for counting the services rendered in theabolished post along with the period of break in service (of about2 to 11 years) and the period of their re-employment. Rules 24 and25 of the Tamil Nadu Pension Rules, which speak about the effectof interruption in service and provide for condonation ofinterruption, is not applicable to the petitioners, in respect ofthe break that they had. This is in view of the fact that theerstwhile post was not in a pensionable establishment. Thereforeviewed from any angle, the claim of the petitioners cannot besustained.24. In view of the above, all the writ petitions aredismissed, in so far as the claim of the petitioners for countingtheir services from the date of their appointment in the erstwhilepost of Village Officer is concerned. However, it is made clearthat a few of the petitioners who have retired in the newlycreated post without completing 10 years of service, are entitledto the benefits of the other Government Orders listed out in theprevious part of this order. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarSvnTo1.The Secretary to Government, State of Tamil Nadu, Revenue Department, Fort St. George, Chennai-600 009. https://hcservices.ecourts.gov.in/hcservices/

2.The Principal Commissioner and Commissioner of Revenue Administration, Chennai-600 005.3.The Revenue Divisional Officer, Tiruchengode.4.The District Collector, Namakkal.5.The Principal Accountant General (A. & E.), Tamil Nadu, 361, Anna Salai, Chennai-600 018.12 ccs To M/s. M.Ravi, Advocate, SR.1180 & 1181WP Nos.276 to 280 of 2009 and WP Nos.287 to 293 of 2009SSR(CO)SRA(11/02/2009)