Dr.T.Lakshmipathi v. The State of Tamilnadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 15.10.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.33879 OF 2006(O.A.NO.5695 OF 1998)Dr.T.Lakshmipathi.. PetitionerVs.1.The State of Tamilnadu rep. By its Secretary, Health and Family Welfare, Fort St. George, Chennai-9.2.The Secretary, Finance (Pension), Fort St. George, Chennai-9.. RespondentsThis writ petition is preferred under Article 226 of theConstitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records relating to Rule 27of the Pension Rules, to quash the same insofar as the applicant isconcerned has having force only prospectively i.e. 1.1.79 andconsequently extend revised pensionary benefits to the applicantapplying Article 404 AA of the Pension Code and extend all benefitsboth arrears and prospective.For Petitioner : Mr.L.ChandrakumarFor Respondents : Mr.R.Neelakandan, GA- - - - ORDERHeard both sides.2.The petitioner was a retired Additional Professor ofSurgery from the Madras Medical College, Chennai. He filedO.A.No.5695 of 1998 before the Tribunal, seeking for a declarationthat Rule 27 of the Tamil Nadu Pension Rules, 1976 wasunconstitutional and illegal in so far as the applicant isconcerned and it will have force only prospectively i.e. 1.1.79.Consequently, the petitioner wanted Article 404 AA of the PensionCode to be extended in his favour and also to grant arrears arisingout of such pension. https://hcservices.ecourts.gov.in/hcservices/

3.According to the petitioner, he joined the GovernmentService on 2.8.1967 as a Civil Assistant Surgeon. He got retiredfrom service on 30.11.1995 after rendering 28 years of service. Atthe time of joining service, the petitioner was 29 years old. Whenthe petitioner joined service during 1967, he was governed by thePension Code. Subsequently, rules known as the Tamil Nadu PensionRules were made and brought into effect from 1.1.1979. 4.It is the case of the petitioner that since the Pensioncode was applicable and by virtue of Article 404 AA, if an officeris appointed and retired on or after 1.7.60, he may add to hisservice qualifying for superannuation pension, the actual periodnot exceeding 1/4th of length of his service or the actual periodby which his age at the time of recruitment exceeds 25 years or aperiod of five years whichever is the least.5.Article 404 AA as it stood prior to 7.1.1971 read asfollows:0404.AA : An Officer appointed to service or post andwho retires from service on or after 1st July 1960 mayadd to his service qualifying for superannuationpension (but not for any other class of pension) theactual period not exceeding one fourth of the lengthof his service or actual period by which his age atthe time of recruitment exceeds twenty five years ora period of five years, whichever is the least, ifthe service or post is one:-a)for which post graduate, research orspecialist qualification or experience in scientific,Technological or professional fields is prescribednot merely as desirable but as obligatoryqualification; andb)for which the age of recruitment prescribedin the service rules applicable to the service orpost concerned is above twenty five yearsAn officer appointed to a post specified in column 2of the Table under this Article may add to hisservice qualifying for superannuation pension (butnot for any other class of pension) a period notexceeding one fourth of the length of his service orthe actual period by which his age at the time ofrecruitment exceeds twentyfive years or the periodspecified against that post in column (3) of the saidTable whichever is the least:****************************** https://hcservices.ecourts.gov.in/hcservices/ The TableSerialName of the postMaximum number ofNumberyears that may beadded to servicequalifying forsuperannuationpension---------------------------------------------------------1XXXXXX2XXXXXX3Civil Assistant Surgeon2* Revised as 5 years from 25.09.1971.-----------------------------------------------------------6.Therefore, it is the case of the petitioner that since hehad entered the service before the introduction of the Tamil NaduPension Rules, the pension code alone is applicable and he will beeligible to add five years of service for calculating his pensionby virtue of the Code. When the petitioner made a representation tothe State Government (by addressing a letter to the Minister forHealth), the State Government by its order, dated 11.3.1998informed the petitioner that his request was not feasible forcompliance. 7.Rule 27 of the Tamil Nadu Pension Rules reads as follows:"27.Addition to qualifying service inspecial circumstances.-(1)Any person appointedto a service or post and who retires fromservice on or after the 1st July 1960 may add tohis service qualifying for superannuationpension (but not for any other class of pension)the actual period not exceeding one-fourth ofthe length of his service or the actual periodby which his age at the time of recruitmentexceeds thirty years or a period of five years,whichever is less, if the service or post isone."8.It is because the rule is being disadvantageous, thepetitioner seeks for a declaration that Rule 27 is invalid. 9.On notice from the Tribunal, the respondents have filed areply affidavit, dated 5.10.2001. In paragraph 7 of the replyaffidavit, it was averred as follows:"7.With reference to para V(4) of theapplication, it is submitted that prior to1.1.1979, Civil Service Regulations (MadrasPension Code) were applicable to the StateGovernment Servants. The Tamil Nadu Pension https://hcservices.ecourts.gov.in/hcservices/ Rules, 1978 have come into force on the 1stJanuary, 1979. As such, the Tamil Nadu PensionRules, 1978 will be applicable to the StateGovernment servants with effect from 1.1.1979.As per rule 27 of the Tamil Nadu Pension Rules,1978, any person appointed to a service or postand who retires from service on or after the 1stJuly, 1960 may add to his service qualifying forsuperannuation pension (but not for any otherclass of pension) the actual period notexceeding one-fourth of the length of hisservice or the actual period by which his age atthe time of retirement exceeds thirty years or aperiod of five years whichever is less if theservice or post is one. Further, as per rule 5of the Tamil Nadu Pension Rules, 1978, any claimto pension or family pension shall be regulatedby the provisions of the said Rules in force atthe time when a Government servant retires or isretired or is discharged or his allowed toretire from service or dies as the case may be.As the applicant retired from service on30.11.1995 his accrued pensionary benefitsshould be derived with reference to theprovisions of Tamil Nadu Pension Rules, 1978only and not with reference to the provision ofCivil Service Regulations (Madras Pension Code).Hence the applicant is not eligible for theweightage in service to the extent of 4 years, 8months and 1 day."10.In view of the abolition of the Tribunal, the matterstood transferred to this court and was renumbered as W.P.No.33879of 2006.11.It must be stated that the petitioner cannot have bestof both worlds. Inasmuch as the pension rules have been framed byvirtue of the power vested on the State Government under Article309 of the Constitution and they are also legislative in character,it can be challenged only on the touchstone of Articles 14 and 16of the Constitution. Merely because the new rule did not provide anadditional benefit to the petitioner, it will not become eitherinvalid or unconstitutional. 12.In this context, it is necessary to refer to thefollowing decision of the Supreme Court which will have a bearingon this case.13.The Supreme Court in Union of India v. Lieut E. Iacatsreported in (1997) 7 SCC 334 has held that a cut of date providedin a pension scheme cannot be declared invalid and the decision inNakara's case was distinguished. After the petitioner's entry intoservice, new rules were made and the old Code was replaced. The newrules also provide additional service to be counted based upon the https://hcservices.ecourts.gov.in/hcservices/ actual length of service. But the petitioner did not qualify forcounting such service. In this context, it is necessary to extractthe following passages found in paragraphs 4 and 5 from the saidjudgment:4. The next question relates to paymentof pension. Under Army Instruction No. 14which was in force at the material time, therespondent, either on the date of herappointment or on the date of her retirement,or at any time during her service, did nothave the benefit of pension on retirement. Theterms and conditions of service were known toher at the time when she joined the service.At the time of joining service she had signedan agreement to abide by the rules andregulations governing Military Nursing Service(Local) from time to time. She has claimedthat pensionary benefits which were conferredfor the first time on all those who retired onor after 1-10-1983 should be given to heralthough she retired much prior to that date.Although she has not challenged the cut-offdate as arbitrary, reliance in this connectionis placed by her on the decision in the caseof D.S. Nakara v. Union of India1. Thisdecision has been subsequently explained anddistinguished in a number of cases. In thecase of Sushma Sharma (Dr) v. State ofRajasthan2 (AIR at p. 1379: SCC p. 66,para 44) this Court cited with approval itsearlier observations in Union of India v.Parameswaran Match Works Ltd.3 to the effectthat the choice of a date as a basis ofclassification cannot always be dubbed asarbitrary unless it is capricious orwhimsical. In the case of State of W.B. v.Ratan Behari Dey4 this Court considered thepension scheme introduced by the CalcuttaMunicipal Corporation from 1-4-1977. It upheldthe validity of the cut-off date. Nakara case1was distinguished on the ground that in Nakaracase1 by an artificial cut-off date,distinction was sought to be made betweenretired employees who were governed by thesame rules. However, when a pension scheme isintroduced from a given date, there are twosets of employees who are governed by twodifferent sets of rules. They cannot betreated as similarly situated. As the cut-offdate was retrospective, this Court alsoexamined the reasonableness of thisretrospective operation. It found the cut-offdate to be reasonable, it being based upon the https://hcservices.ecourts.gov.in/hcservices/ date of appointment of the Pay Commission. Ina recent decision in the case of Commander,Head Quarter v. Capt Biplabendra Chanda5 newrules reducing the minimum qualifying servicefor pension came into effect from 1-1-1986.The respondent who had retired prior to thisdate was not granted pension under the oldrules as he did not qualify for pension underthose rules. This Court, distinguishing Nakaracase1 held that he cannot be retrospectivelymade eligible under the new rules. Pensionersunder the old rules and pensioners under thenew rules are not similarly situated. Each setof retiring employees will be governed bytheir own rules in force when they retire.5. The respondent, therefore, cannot claimthe benefit of a scheme which came intooperation from a date subsequent to the dateof her retirement. The respondent also did notcontend either before the High Court or in thegrounds of appeal before us that a cut-offdate for grant of pensionary benefits isarbitrary or unreasonable. Even otherwise inview of the fact that a study team was firstappointed and pursuant to its report certainbenefits were given after considering thereport of the study group would show that thecut-off date had a logical nexus with thedecision to grant these benefits on the basisof the report of the study team. Freshfinancial benefits which are conferred alsohave to be based on proper estimates offinancial outlay required. Bearing in mind allrelevant factors, if such a benefit isconferred from a given date, such confermentof benefits from a given date cannot beconsidered as arbitrary or unreasonable.14.In the light of the above legal precedents, thechallenge made to Rule 27 of the Tamil Nadu Pension Rules mustfail. Accordingly, the writ petition will stand dismissed. Nocosts. VvkSd/-Asst. Registrar//True Copy//Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary, The State of Tamilnadu Health and Family Welfare, Fort St. George, Chennai-9.2.The Secretary, Finance (Pension), Fort St. George, Chennai-9.+ 1 cc to Government Pleader, SR No.54716VSV(CO)SR/23.10.2009 ORDER INW.P.NO.33879 OF 2006