IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 30-11-2010 Coram: THE HONOURABLE MR.JUSTICE N. PAUL VASANTHAKUMAR W.P.No.25293 of 2010 M.P.No.1 of 2010 V. Palraj ... Petitioner Vs. 1. The Government of Tamil Nadu, rep.by Secretary to Government, Finance (Pension) Department, Fort St.George, Chennai – 9. 2. The Secretary, Government of Tamil Nadu, Forest Department, Fort St.George, Chennai – 9. 3. Principal Chief Conservator of Forests, Panagal Maaligai, Chennai – 15. 4. The Conservator of Forests, Tirunelveli District, Tirunelveli. 5. The District Forest Officer, Tirunelveli Division, Tirunelveli and District. 6. The Principal Accountant General (A&E), Teynampet, Chennai – 18. ... Respondents This writ petition is filed under Article 226 of the Constitution of India, with a prayer to issue a writ of Certiorarified mandamus calling for the records of the first respondent in relation to G.O.Ms.No.408 Finance (Pension) Department, dated 25.8.2009 and quash the same insofar as petitioner is concerned and issue a consequential direction to the respondents 1 to 6 to count half of the service rendered by the petitioner as Plot Watcher from 1.12.1982 to 30.4.2003 as per G.O.Ms.No.437 dated 23.6.1988 and G.O.Ms.No.118 dated 14.2.1996 together with the regular service rendered by the petitioner as Forest Watcher from 3.5.2003 to 31.7.2006 as qualifying service and send the revised pension proposal to the 6th respondent and to grant https://hcservices.ecourts.gov.in/hcservices/ pension and other terminal benefits with arrears of pension. For Petitioner : Mr.R.Saseetharan For Respondents 1 & 2 : Mr.S.Sivashanmugam, Government Advocate For Respondents 3 to 5 : Mr.P.Sathish, Govt. Advocate (Forests) For 6th Respondent : Mr.V.Vijayashankar O R D E R The prayer in the writ petition is to quash the G.O.Ms.No.408 Finance (Pension) Department, dated 25.8.2009 insofar as the petitioner is concerned and issue consequential direction to the respondents 1 to 6 to count half of the service rendered by the petitioner as Plot Watcher from 1.12.1982 to 30.4.2003 as per G.O.Ms.No.437 dated 23.6.1988 and G.O.Ms.No.118 dated 14.2.1996 together with the regular service rendered by the petitioner as Forest Watcher from 3.5.2003 to 31.7.2006, as qualifying service and send the revised pension proposal to the 6th respondent and to grant pension and other terminal benefits with arrears of pension. 2. The case of the petitioner is that he was initially appointed as Plot Watcher in the Forest Department on 1.12.1980 on daily wage basis. Petitioner served in the said capacity till 30.4.2003, nearly for 23 years. Petitioner was promoted as Forest Watcher by order of the 4th respondent on 2.3.2003 and the petitioner also joined in the said post. Petitioner's promotion in the post of Forest Watcher was regularised with effect from 3.5.2003 and he retired on 31.7.2006 after putting in total service of 26 years (23 years on daily wage service and 3 years of regular service). 3. The grievance of the petitioner is that he was not granted pensionary benefits under the Tamil Nadu Pension Rules, 1978 on the ground that he is not having ten years of pensionable service. The respondents have treated petitioner's service of 23 years on daily wage basis as non-pensionable service. The claim of the petitioner to treat the entire service as pensionable service was rejected by the 6th respondent by order dated 21.5.2006 stating that the petitioner was appointed as Forest Watcher only on 3.5.2003 and hence he is covered only under the Contributory Pension Scheme, introduced by the Government in G.O.Ms.No.259, dated 6.8.2003, applicable to the persons, who are recruited on or after 1.4.2003, and old pension rules do not apply to the petitioner and therefore petitioner is not entitled to get pensionary benefits. It is also stated in the said order that the petitioner's date of appointment is 3.5.2003 and counting of 50% of earlier services do not arise as petitioner's service in the post of Plot Watcher is a non-pensionable post. https://hcservices.ecourts.gov.in/hcservices/ 4. Mr.R.Saseetharan, learned counsel for the petitioner submitted that G.O.Ms.No.259 dated 6.8.2003 introducing new Contributory Pension Scheme, which states that persons recruited on or after 1.4.2003 are not eligible to get old pension scheme, cannot be applied to the petitioner as he was initially appointed on 1.12.1980 and he was in service in the department till 31.7.2006 without any break-in-service. The learned counsel also submitted that the petitioner was paid daily rate wages on monthly basis from 1.12.1980 till 30.4.2003 and he was also promoted and regularised as Forest Watcher with effect from 3.5.2003 and retired on 31.7.2006. The learned counsel also submitted that Rule 11(2) of the Tamil Nadu Pension Rules, 1978 clearly states that for calculating qualifying service, half of the service paid from contingencies shall be allowed to be counted and that the petitioner is satisfying the conditions contained in Rule 11(2) as he was appointed on daily wage basis from 1.12.1980 till he was promoted and regularised on 3.5.2003, and that the daily wage pay was calculated and paid only on monthly basis and the petitioner was absorbed in service without break-in-service. The learned counsel further submits that the impugned clause in the Government order totally wiped out petitioner's earlier full time service of 23 years, merely on the ground that the said service was not regularised. 5. I have also heard Mr.S.Sivashanmugam, learned Government Advocate for respondents 1 and 2, Mr.P.Sathish, learned Government Advocate (Forests) for respondents 3 to 5, and Mr.V.Vijayshankar, learned counsel for the 6th respondent. 6. Rule 11(2) of the Tamil Nadu Pension Rules, 1978 reads as follows: "11(2) Half of the service paid from contingencies shall be allowed to count towards qualifying service for pension along with regular service subject to the following conditions: (i) Service paid from contingencies shall be in a job involving whole time employment and not part time for a portion of the day. (ii) Service paid from contingencies shall be in a type of work or job for which regular posts could have been sanctioned, for example Chowkidar. (iii) Service shall be for which the payment is made out on monthly or daily rates computed and paid on a monthly basis and which, though not analogous to the regular scale of pay, shall bear some relation in the matter of pay to those being paid for similar jobs being performed by staff in regular establishments. https://hcservices.ecourts.gov.in/hcservices/ (iv) Service paid from contingencies shall be continuous and followed by absorption in regular employment without a break. (v) Subject to the above conditions being fulfilled, the weightage for past service paid from contingencies shall be limited to the period after the 1st January, 1961 for which authenticated records of service may be available. (vi) Pension or revised pension admissible as the case shall be paid from the 23rd June 1988. Half of the service rendered by State Government employee under non-pensionable establishment shall be allowed to be counted for pensionary benefits along with regular service under pensionable establishment subject to the following conditions. (a) Service under non-pensionable establishment should have been in a job involving whole time employment. (b) The service under non-pensionable establishment should have been on time scale of pay. (c) The service under non-pensionable establishment should have been continuous and followed by absorption in pensionable establishment without a break." 7. Similar issue was considered by this Court insofar as appointment of Teachers, wherein certain Teachers with higher qualifications were appointed in aided schools in contravention of G.O.Ms.No.559 School Education Department, dated 17.5.1995 and when the said Government Order was in operation, the management appointed several teachers. Aggrieved over the non-approval of their appointment number of Teachers filed writ petitions before this Court. The said Government Order was upheld by the single Judge of this Court by order dated 19.5.1998. However, the Division Bench of this Court (V.S.S.,J (as he then was) & A.K.,J.) in the decision reported in 2002 WLR 173 (Secretary & Correspondent, Uswathun Hasana Oriental (Arabic) Girls Higher Secondary School v. The State of Tamil Nadu) held that appointments made upto 19.5.1998 in aided schools have to be approved by giving special training. Pursuant to the said direction, the Government issued G.O.Ms.No.155 School Education Department dated 3.10.2002 and ordered to give Child Psychology Training to the Teachers, who were appointed from 11.7.1995 to 19.5.1998 and ordered to approve their appointments only from the date of completion of the https://hcservices.ecourts.gov.in/hcservices/ certificate course and all the said Teachers were granted approval on time scale of pay only from 2.6.2003. Some of the teachers challenged G.O.Ms.No.155 School Education Department dated 3.10.2002 before this Court and the Division Bench of this Court (R.J.B.,J. & M.K.V.,J (as he then was) in the decision reported in 2004 (2) LW 591 (State of Tamil Nadu v. Pallivasal Primary School) held that the services rendered by the Teachers prior to Child Psychology Training shall be counted for the purpose of pension. The said Teachers were denied pension on the ground that they were appointed after 1.4.2003. 8. Similar issue came up before me in W.P.No.26933 and 26934 of 2007 and by order dated 23.4.2008, taking note of the earlier Division Bench decisions as well as the fact that the petitioners therein were appointed prior to 1.4.2003, I have ordered to extend pensionary benefits to the petitioners therein. The said order of this Court was subsequently followed in the following writ petitions. (a) W.P(MD)No.5174 of 2008, dated 30.6.2008 (K.Suguna,J) (b) W.P(MD)No.7263 & 7264 of 2008, dated 16.12.2008 (S.Nagamuthu, J.) (c) W.P(MD)No.10447 of 2008, dated 16.7.2009 (M.Sathyanarayanan, J.) (d) W.P(MD)No.1375 of 2010, dated 3.3.2010, (P.Jyothimani, J.) The above cited order of mine was also implemented by the Government by issuing G.O.Ms.No.413 Finance (PGC) Department dated 4.11.2010 stating that the persons having been appointed in the sanctioned regular posts from 11.7.1995 to 19.5.1998, they should not be treated as appointed after 1.4.2003, i.e., after the implementation of Contributory Pension Scheme and ordered to extend the benefits of old pension scheme and general provident fund as applicable to the teachers appointed prior to 1.4.2003. 9. At this juncture the learned counsel for the petitioner also brought to my notice that the Government issued G.O(D)No.332 Environment and Forest Department dated 19.11.2008 in favour of one V.Murugan, Forest Guard, who retired on 30.9.2005, ordering to count 50% of his service from 1.9.1980 to 23.3.2003 for the purpose of sanction of pension to the said Murugan. The learned counsel for the petitioner also submits that the petitioner has not been paid any benefit under the new pension scheme and hence there will be no impediment to extend the benefits of old pension rules to the petitioner as it was given to the said V.Murugan. Even in discretionary matters if the persons are identically placed, same treatment shall be followed to all, is well settled. I had an occasion to consider similar issue in the decision reported in (2006) 2 MLJ 574 (N.S.Balasubramanian v. Food Corporation of https://hcservices.ecourts.gov.in/hcservices/ India). The said decision was confirmed by the Division Bench of this Court (A.P.Shah,C.J. & K.C.,J.) in W.A.No.956 of 2006 dated 30.10.2006 and by the Supreme Court in S.L.P.(C)No.6771 of 2007 dated 23.4.2007. 10. Applying the said principle to the facts of this case, and in the light of the statutory provision contained in Rule 11(2) of the Tamil Nadu Pension Rules, 1978, and in view of the fact that the petitioner having been initially appointed on 1.12.1980 and continued to serve in the department without any break-in-service, and the petitioner having been absorbed in the regular service from 3.5.2003, I hold that the petitioner is entitled to get his 50% of the services, from 1.12.1980 till the date of his regularisation on 3.5.2003, counted for the purpose of calculation of pensionable service. 11. In the result, the writ petition is disposed of with a direction to the first respondent to count 50% of the service of the petitioner from 1.12.1980 till 30.4.2003 along with the entire service from 2.5.2003 till 31.7.2006 as pensionable service and send the pension proposals to the 6th respondent within three months from the date of receipt of copy of this order. On receipt of the pension proposal the 6th respondent is directed to sanction eligible pension and other benefits to the petitioner within two months therefrom. No costs. Connected miscellaneous petition is closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar vr To 1. The Secretary to Government, Finance (Pension) Department, Fort St.George, Chennai – 9. 2. The Secretary, Government of Tamil Nadu, Forest Department, Fort St.George, Chennai – 9. 3. The Principal Chief Conservator of Forests, Panagal Maaligai, Chennai – 15. 4. The Conservator of Forests, Tirunelveli District, Tirunelveli. 5. The District Forest Officer, Tirunelveli Division, Tirunelveli and District. https://hcservices.ecourts.gov.in/hcservices/ 6. The Principal Accountant General (A&E), Teynampet, Chennai – 18. 1 cc to Spl.Government Pleader,(Forests) Sr.No.85398 1 cc to Mr.V.Vijay Shankar, Advocate, Sr.No.85692 W.P.No.25293 of 2010 GG {CO} TP/12.1.2011. https://hcservices.ecourts.gov.in/hcservices/