THE HONOURABLE MR v. State of Tamilnadurep. by the Chief SecretaryFort St. GeorgeChennai – 600 009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 03-11-2006CORAM :THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOandTHE HONOURABLE MR.JUSTICE A. KULASEKARANW.P. No. 12744 of 2006Justice P. Venugopal.. PetitionerVersusState of Tamilnadurep. by the Chief SecretaryFort St. GeorgeChennai – 600 009.. RespondentPetition filed under Article 226 of the Constitution of India prayingfor a Writ of Certiorari to call for the records of the respondent inLetter No.3081/Special B/2003-7 dated 29.06.2005 and quash the order dated29.06.2005.For Petitioner: Mr. M.N. Padmanabhan, Sr. Counsel for Mr. M. Noor Ahmed KhanFor Respondents: Mr. P.S. Raman Additional Advocate General asst. by Mr. P. Subramanian Addl. Government PleaderORDERA. KULASEKARAN, JQuestioning the validity of the Order dated 29.06.2005 passed by therespondent rejecting the claim of the petitioner for re-fixation ofpension, the present writ petition has been filed.2.The case of the petitioner is as follows:- The Petitioner was appointed as Permanent Judge, High Court of Madrason 25.01.1979 and superannuated on 07.12.1981. During the said period,the Government of India has issued a notification dated 29.07.1981appointing the petitioner as Commission of inquiry to inquire into theincidents relating to the attack on the offices and premises of TamilNewspapers 'Malaimurasu' and 'Dinakaran". The notification dated29.07.1981 reads thus:- "I am directed to say that the President requestsShri Justice P. Venugopal, Judge, Madras High Court tofunction as the Commission of Inquiry under the https://hcservices.ecourts.gov.in/hcservices/ Commissions of Inquiry Act, 1952 in respect of theincidents that took place in Coimbatore Town in TamilNadu on 23rd July, 1981.2.The time spent by Shri. Justice P. Venugopalin the performance of the said function will count asActual Service" within the meaning of paragraph 11 (b)(i) of Part "D" of the Second Schedule to theConstitution of India read with Section 2 (1) (c) (i)of the High Court Judges (Conditions of Service) Act,1954. Shri Justice Venugopal will not be entitled toany extra remuneration for the above work excepttravelling allowances and daily allowances asadmissible under the High Court Judges (TravellingAllowance) Rule, 1956." 3.Following the said notification, Government of Tamil Nadu i.e.,the respondent herein issued G.O. Ms. No. 1504, Public (Law and Order-4)Department dated 28.12.1981. 4.Before completion of the said enquiry, the petitioner attainedthe age of superannuation, hence, the Government of Tamil Nadu issuedG.O. Ms. No.2306 (Law & Order-4) Department dated 28.12.1981 stating thus:-"In the G.O. read above, Justice Thiru. P.Venugopal, sitting Judge of the Madras High Court wasappointed as Commission of Inquiry to enquire into thealleged incidents of attack on the offices and premisesof news papers 'Dinakaran' and 'Malai Murasu' inCoimbatore Town on 23.07.1981. He has since retired onsuperannuation on 07.12.1981 AN and has requested thatformal orders may be issued authorising him for thedrawal of the pay and allowances drawn by him as Judgeof the High Court beyond 07.12.1981, as he is entitledfor the last pay drawn by him as the Commission ofInquiry.2.Justice P. Venugopal (Retired) who has beenappointed as the Commission of Inquiry on a full timebasis will draw the total emoluments last drawn by himas a Judge of the High Court, minus the pension towhich he is eligible, excluding the pension commuted,if any, for the period he functions as the Commissionof Inquiry.3.Justice P. Venugopal (retired) is alsoeligible to draw the Travelling Allowance for thejourneys undertaken in connection with the work of theCommission at the rates admissible to him immediatelyprior to his retirement as Judge of Madras High Court.The Commission will have its Head Quarters at Madrasand the enquiries will be held in Coimbatore Districtat the discretion of the Commission. https://hcservices.ecourts.gov.in/hcservices/

4.This order issues with the concurrence ofFinance Department vide its U.O. No.4110/FS/P/81-1dated 23.12.1981." 5.The petitioner has submitted his report on 30.09.1987. 6.Another order dated 22.03.1983 was issued by the Government ofTamil Nadu appointing the petitioner herein as One-man Commission toinquire into the alleged clashes between Hindus and Christian inMandaikadu, Kanyakumari District and he submitted his report on21.09.1985. Subsequently, the Petitioner was also appointed as Commissionof Payments by a notification dated 01.08.1986 under the Race ClubAcquisition and Transfer of Undertakings Act, 1986 (Act 26 of 1986) forvaluation of the assets of the Madras Race Club. On 31.12.1988, a reportwas submitted by the petitioner to the Government and he relinquished thecharge as Commissioner of Payments. 7.It is further stated by the petitioner that during the periodbetween 08.12.1981 and 31.12.1988, he was drawing the same salary andallowances as sitting judge of the High Court. Hence, claiming re-fixation of his pension including the period from 08.02.1981 to 31.12.1988taking into consideration the terms and conditions of appointment asCommission of Inquiries and Commissioner of Payment has filed WP No. 11222of 2001 before this Court which was dismissed. Aggrieved by the order ordismissal, the petitioner has preferred SLP (Civil) No. 15450 of 2003before the Honourable Supreme Court, which was also dismissed on01.09.2003 with an observation as follows:-"We, therefore, in agreement with the judgment ofthe Madras High Court are of the opinion that for thepurpose of computation of pension different, servicesof the petitioner could not have been clubbed in termsof Act 28 of 1954. The pension payable to a HighCourt Judge would be only for the period rendered inthat capacity which would constitute charge to theconsolidated fund of India and services renderedsubsequent thereto in terms of the order made by aState Government would not be charged to theconsolidated fund. The question as to whether such aperson would be entitled to pension from the concernedState or not would depend upon the statute or the termsand conditions of appointment."8.Pursuant to the Order dated 01.09.2003 passed by the HonourableSupreme Court, the petitioner has submitted a representation dated02.11.2003 to the respondent, but there was delay in considering it,hence, he filed WP No. 2764 of 2004 before this Court which was disposedof on 13.04.2005 directing the respondent herein to consider therepresentation dated 02.11.2003 of the petitioner in a manner known toLaw, take a decision thereon and communicate the same to the petitioner onor before 30.06.2005. Thereafter, the respondent has passed an order dated29.06.2005 rejecting the claim of the petitioner stating that the servicesrendered by him as Commission of Inquiry on two occasion and Commissionerof Payment beyond his superannuation as High Court Judge i.e., from https://hcservices.ecourts.gov.in/hcservices/

08.12.1981 to 31.12.1988 could not be complied with, hence the presentwrit petition.9.The learned Senior counsel Mr. M.N. Padmanabhan appearing forthe petitioner submitted that the petitioner is entitled to pensioncovering the period from 08.12.1981 to 31.12.1988 as per the terms andconditions of appointment of the petitioner as Commission of Inquiry ontwo occasion and Commissioner of Payments; that the Commission of InquiryAct and Race Club Acquisition and Transfer of Undertakings Act, 1986 (Act26 of 1986) do not operate as a bar for the petitioner to claim pensionfor the said period; that the Honourable Supreme Court though held thatthe period of service rendered by the petitioner as High Court Judge alonecould constitute charge to the Consolidated fund of India and servicesrendered in terms of the order made by the State Government would not becharged to the said Consolidated Fund of India, the liability to paypension by the State Government would depend upon the terms and conditionsof the appointment and that the terms and conditions of appointment of thepetitioner clearly impose a liability to pay pension to the petitioner,hence, the respondent is liable to pay pension taking into account theperiod from 08.12.1981 to 31.12.1988 and prayed for quashing the impugnedorder.10.Per contra, the learned Additional Advocate General Mr. P.R.Raman appearing for the respondent submitted that the service of agovernment servant does not qualify for pension unless his duties and payare regulated by the Government or conditions determined by theGovernment. The expression "service" means service under the Governmentand paid by the Government from the Consolidated Fund of the State or alocal fund administered by that Government but does not include service ina non-pensionable establishment unless such service is treated as aqualifying service by that Government. The terms of appointment ofcommission of inquiry as well as Commission of payments clearly stipulatethat they are non-pensionable service and therefore it is not open to thepetitioner to seek re-fixation of pensionary benefits and prayed fordismissal of the writ petition.11.We have carefully considered the submissions of the counsel forboth sides and perused the records. The petitioner was appointed aspermanent Judge of the High Court, Madras on 25.01.1979 and superannuatedon 07.12.1981. The Government of Tamil Nadu has appointed the petitionerto function as Commission of Inquiry before his superannuation, thereafteras one man commission and Commissioner of payments. The Petitioner,claiming inclusion of the period of service as Commission of Inquiry andCommissioner of Payment has filed W.P. No. 11222 of 2001 before thisCourt, which was dismissed. As against the same, the petitioner has filedSLP (Civil) No. 15450 of 2003 before the Honourable Supreme Court whichwas also dismissed on the ground that the pension payable to a High CourtJudge would be only for the period rendered in that capacity which wouldconstitute charge to the consolidated fund of India and services renderedsubsequent thereto in terms of the order made by a State Government wouldnot be charged to the consolidated fund and it left open the question asto whether the Petitioner would be entitled to pension from the concernedState or not would depend upon the statute or the terms and conditions ofappointment. The petitioner has submitted a representation dated https://hcservices.ecourts.gov.in/hcservices/

02.11.2003 pursuant to the said order of the Supreme Court, which wasultimately rejected by the respondent under the impugned order. Hence,the three orders mentioned above, appointing the petitioner as Commissionof Inquiry on two occasion and Commissioner of Payment on one occasionhave to be considered to resolve the disputes involved in this writpetition.12.It is seen from the above said three orders that the appointmentof the Petitioner as Commission of Inquiry and later as Commissioner ofPayment do not provide that the services so rendered by him will counttowards pension, or that any enhanced or additional pension would be paidafter the completion of those assignment, hence, the terms and conditionsof the said three appointment orders of the petitioner do not count asactual service rendered for the purpose of inclusion of the said periodsfor pension.13.It is brought to the notice of this Court by the learnedAdditional Advocate General that the appointment of the petitioner ascommission of inquiry beyond his superannuation as High Court Judge wastreated only as re-employment, which is evident from the Order of theGovernment of Tamil Nadu in G.O. Ms. No. 2306 dated 28.12.1981, which wasnecessitated to issue since the petitioner has attained superannuationwhile he was continuing the first commission of inquiry, wherein it wasclarified that he was re-employed, his pay was regulated and fixed as thetotal emoluments last drawn by him as a Judge of the High Court, minus thepension to which he is eligible, excluding the pension commuted, if any,for the period he functioned as the Commission of Inquiry. It should beremembered that in the first order dated 19.07.1981 appointing thepetitioner as commission of inquiry, the performance of the petitioner wastreated as actual service within the meaning of paragraph 11 (b) (i) ofPart "D" of the Second Schedule to the Constitution of India read withSection 2 (1) (c) (i) of the High Court Judges (Conditions of Service)Act, 1954. Before completion of the said enquiry, the petitioner attainedthe age of superannuation, hence, to clarify the position, the respondenthas passed the order dated 28.12.1981 stating that the petitioner isappointed as commission of inquiry on a full time basis and he is entitledto draw the total emoluments last drawn by him as a Judge of the HighCourt of Madras, minus the pension. It is apparent from the said orderthat the words 'function of the petitioner counts as 'actual service' wasdeleted and clarified accordingly, which was not questioned by thepetitioner. Thus, the Petitioner's tenure as Commission of Inquiry on twooccasion and Commissioner of Payments were treated only as re-employment,hence, the said period cannot be treated as actual service rendered by himas a Judge of the High Court for the purpose of calculating the pensionarybenefits. In this context, it is relevant to look into the provisions ofRule 12 of the Tamil Nadu Pension Rules, which runs as follows:-“12. (1) The service of a Government servantshall not qualify for pension unless his duties andpay are regulated by the Government or underconditions determined by the Government.(2)For the purposes of sub-rule (1) theexpression 'service' means service under theGovernment and paid by the Government from the https://hcservices.ecourts.gov.in/hcservices/ Consolidated Fund of the State, or a local fundadministered by that Government but does not includeservice in a non-pensionable establishment unless suchservice is treated as qualifying service by thatGovernment." 14.It is evident from the above said Rule that the expression'service' means service under the Government and paid by the Governmentfrom the Consolidated Fund of the State, or a local fund administered bythat Government but does not include service in a non-pensionableestablishment unless such service is treated as qualifying service by thatGovernment passing specific order. As mentioned above, the petitioner wasre-employed as commission of inquiry and Commissioner of Payments, whichare not pensionable establishment.15.The learned Senior counsel appearing for the petitioner reliedon the decision of a Division Bench of this Court reported in (Union ofIndia vs. The Registrar, Central Administrative Tribunal and another) 2005(3) CTC 703. The facts involved in that case was a sitting Judge of thisCourt was appointed as Chairman, Railway Claims Tribunal, which post hecontinued to hold even after he attained the age of superannuation as HighCourt Judge and claimed pensionary benefits for the period he rendered hisservice as Chairman, Railway Claims Tribunal. The Division Bench of thisCourt, relied on Rule 15 of the Railway Claims Tribunal (Salaries andAllowances and Conditions of Service of Chairman, Vice Chairman andMembers) Rules 1989, which contemplates that notwithstanding anythingcontained in Rules 4 to 14 of the Rules, the conditions of service andother perquisites available to the Chairman shall be the same asadmissible to a serving Judge of a High Court and held that the claim madewas based on Rule 15 and not based on the High Court Judges (Salaries andConditions of Service) Act, 1954 and dismissed the writ petition filed bythe Railways against the order of Central Administrative Tribunal. Hence,the said Judgment is not applicable to the facts of the case. In thiscase, as concluded by us already, the orders of appointment of thePetitioner as Commission of Inquiry and Commissioner of Payments weretreated as re-employment in non-pensionable establishment and the samecannot be treated as actual service of a Judge of High court for thepurpose of pensionary benefits.16.In view of the above discussion, we find that there is noinfirmity in the impugned order passed by the respondent. The writpetition is dismissed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrarrsh https://hcservices.ecourts.gov.in/hcservices/ ToThe Chief SecretaryGovernment of TamilnaduFort St. GeorgeChennai – 600 0091 cc To The Government Pleader, SR.52367.1 cc To Mr.N.Noor Ahamed, Advocate, SR.52367.W.P. No. 12744 of 2006 JSK(CO)RVL 21.11.2006