In the High Court of Judicature at Madras Dated :: 30..03..2011 Coram :: The Hon’ble Mr. Justice V. Dhanapalan Writ Petition No: 24124 of 2008 R. Baskaradoss No: 9, 2nd Street Krishnapuram Gudvancherry Post Chengalpattu Taluk Kancheepuram District. … Petitioner -vs- 1. The Secretary to the Government Planning, Development and Special Initiatives Department Secretariat, Fort St. George Chennai – 600 009. 2. The Director Evaluation and Applied Research Dept. 3rd Floor, Kuralagam Chennai – 600 108. … Respondents .. .. .. Writ petition under Article 226 of the Constitution of India praying for issuance of a writ of certiorarified mandamus to call for the records and quash the order dated 06.05.2008 issued by the 1st respondent in as much as it regularizes the services of the petitioner with effect from 04.05.2007 only and consequently direct the respondents to regularise the services of the petitioner with effect from 23.07.1990 and to sanction pension, gratuity and other terminal benefits with interest to the petitioner from 31.07.2008. For petitioner :: Mrs. D. Nagazaila For respondents :: Mr. S. Gopinathan Addl. Govt. Pleader (Writs) .. .. .. 1 https://hcservices.ecourts.gov.in/hcservices/ O R D E R A senior citizen, though has worked for 18 years, who is alleged to have put in only one year service after he was confirmed in the post, in which he was serving, has come forward with this writ petition with a prayer for issuance of a direction to the respondents to take into account the services put in by him for the purposes of granting him pension for the rest of his life time. For such purpose, petitioner challenges the order of the 1st respondent dated 06.05.2008 and seeks to quash the same and consequently, issue a direction to regularize his services with effect from 23.07.1990 and to sanction pension, gratuity and other terminal benefits with interest from 31.07.2008. 2. The facts pleaded by the petitioner is that he was appointed as an Investigator on a consolidated wage in the 1st respondent department on 23.07.1990. His name as sponsored through employment exchange and after going through a proper selection process with a consolidated wage of Rs.4,500/- per month. It is his claim that the 2nd respondent has sent a proposal dated 14.02.2006 to the 1st respondent wherein he pointed out that the petitioner and other Investigators have rendered excellent services to the Government and their long years of experience as an asset to the department. Despite the department being in existence from 1994, regular appointments to the post of Investigators were made and taking into account the nature of work Investigators in this Department was more onerous than in the Economic and statistical department they were being paid a lesser salary and also taking into the Personnel and Administrative Reforms Department had in a review of the II Respondent Department conducted in 2002-2003 recommended that action be taken to regularize the services of the Investigators who had put in long years of service, vide G.O. Ms. No: 68, P.D. & S.I. ( ST 2 & E) Department dated 04.05.2007, 15 investigators including the petitioner were appointed on a temporary basis with effect from 04.05.2007 and brought on to a pay scale of Rs. 4000 – 100 – 6000. In order to avoid additional financial burden to the Government the existing vacant posts of research assistants were kept in abeyance and in that place the 15 investigators who were in service for long number of years were appointed on a temporary basis. Thereafter, by an order dated 06.05.2008 petitioner’s service was regularized with effect from 04.05.2007. Petitioner retired from service on 31.07.2008. All together petitioner claims that he has put in 17 years and 10 months of service and that service ought to have been regularized from the date of his appointment. 3. According to the petitioner he was recruited in the year 1990 and the respondents have erroneously placed him in the contributory pension scheme instead of the old pension scheme. The new contributory 2 https://hcservices.ecourts.gov.in/hcservices/ pension scheme is applicable to new employees who are recruited on or after 01.04.2003. Since petitioner was recruited much prior to the said cut off date my pension should be sanctioned as per the old scheme and not as per the new contributory pension scheme. No option was obtained from petitioner in respect of opting for the new scheme. Further as contributions to the said scheme were deducted from his salary only for a period of eight months the pension benefit would become illusory if he was relegated to the new scheme. Therefore, petitioner gave a representation to the 2nd respondent dated 06.02.2008 requesting him to make provisions for monthly benefit scheme and other retirement benefits. On such a representation, he 2nd respondent gave a letter to the Government requesting Government to pass a G.O. granting monthly pension benefits and also other retirement benefits in respect of the 15 employees who were temporarily appointed as per G.O. No: 68 P.D. & S.I. ( ST 2 & E) Department dated 04.05.2007 and whose appointments were subsequently regularized by order dated 05.05.2008. 4. It is the claim of the petitioner that 2nd respondent department is a pensionable establishment and the post of Investigator is a pensionable post. As per Rule 3 (o) of the Tamil Nadu Pension Rules, 1978 defines the term “qualifying service” as follows :- “Qualifying service means permanent or officiating service (including temporary service under emergency provisions) rendered in a post included in a pensionable establishment”. Rule 11 of the said Rules stipulates the period of commencement of qualifying service. As per this Rule “qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. In the case of a Government servant retiring on or after October, 1969, continuous, temporary or officiating service in a pensionable post whether rendered in a regular capacity or not shall count in full as qualifying service even if it not followed by confirmation.” Further Rule 2 of the Tamil Nadu Pension Rules shall apply to all Government Servants appointed to services and posts in connection with the affairs of the State which are borne on pensionable establishments, whether temporary or permanent. Therefore, the post of Investigator is a service and post in connection with the affairs of the State and hence, his entire period of service as Investigator should be taken into account for the purpose of grant of pension. Therefore, the order passed by the 1st respondent is arbitrary and violative of Articles 14, 16 and 21 of the Constitution of India. It is also claimed by the petitioner that pension is not a charity and that the Supreme Court has time and again ruled that pension is nothing but deferred wages for the long years of service put in by the employee and therefore, he prayed for quashing of the impugned order and also to issue the consequent directions sought for by him. 3 https://hcservices.ecourts.gov.in/hcservices/ 5. Petitioner has also filed a reply affidavit to the counter filed by the respondent in addition to the affidavit and would state that the respondents have deliberately terminated his services and re-issued appointment orders only so as to defeat any claim for regularization. Petitioner submits that all the breaks were artificial breaks which are legally impermissible and hence should be ignored. It is also submitted that the proposal forwarded for their regularization as well as the order of regularization explains in detail the valuable and long years of service put in by the petitioner and the details of the date of appointment, termination and subsequent re-appointments are as follows :- Date of appointment Date of Termination 10.07.1990 31.11.1990 17.12.1990 31.07.1992 01.08.1992 15.09.1993 17.09.1993 28.02.1995 01.03.1995 12.05.1995 01.11.1995 09.07.1996 10.07.1996 31.03.1997 04.04.1997 31.03.1998 03.04.1998 13.04.1999 15.04.1999 30.06.1999 01.07.1999 04.01.2000 05.01.2000 06.03.2000 10.03.2000 28.02.2001 01.03.2001 31.10.2001 14.01.2003 05.08.2003 07.08.2003 04.02.2004 06.02.2004 04.08.2004 05.08.2004 09.02.2005 10.02.2005 Till retirement 6. According to the petitioner, the nature of the work of the department was to evaluate the various schemes of the Government by collecting data, checking if the actual beneficiaries are receiving it, etc. Thus by the very nature of the job, the respondents shifted the investigators from one scheme to the other to evaluate them. The work in the Department is perennial as the Government is constantly implementing schemes in one department or the other and the investigators are sent to give field reports about their implementation and to evaluate the scheme. 7. After more than ten years of service, as the Department issued termination orders, instead of re-appointing them, the respondents appointed new comers. Hence, the petitioner along with others have moved the Tamil Nadu Administrative Tribunal and filed O.A. No: 7542 of 2001 4 https://hcservices.ecourts.gov.in/hcservices/ and initially there was a stay of the termination order and subsequently, the same was vacated. Thereafter, by an order dated 25.04.2002, the Tamil Nadu Administrative Tribunal disposed of the O.A. by directing the Government to consider their claim. The Tribunal recorded that when the schemes are continuing it may not be proper to terminate their services and employ new hands in their places and such a thing was not sound labour policy especially by the Government. Taking into consideration the orders of the Tribunal, they were all re-appointed on 14.01.2003 from which date they are continuously working. 8. The respondents have filed counter affidavit and stated that the Department conducts Evaluation studies allocated from Central and State Government and various other agencies from time to time with specific fund allocation and staff pattern based on the requirement of each study. Temporary staff were also recruited, if required, for any study. The petitioner was temporarily appointed on consolidated pay as Investigator in the Evaluation and Applied Research Department as per O.P. No: 1310 / A2 / E & AR / 90 dated 10.07.1990. In the appointment order itself it was clearly stated that the post was purely temporary and he was liable to be terminated at any time without giving any notice and the petitioner was given consolidated pay only. The petitioner was eligible for D.A. as per rule in force and not eligible for any other allowances and this was clearly indicated in every appointment order. The petitioner was removed from duty, after completion of each particular study for more than 10 times from 1990 to 31.10.2001. 9. In the counter affidavit, the respondents have stated that as per G.O. Ms. No: 68, Planning, Development and Special Initiatives (ST 2 & E) Department dated 04.05.2007, 15 investigators including the petitioner were appointed on temporary basis with effect from 04.05.2007 and brought into pay scale of Rs. 4000 – 100 – 6000 under Contributory Pension Scheme. The Contributory Pension Scheme applies to all Government employees who are recruited on or after 01.04.2003. The petitioner had entered into time scale only on 04.05.2007. After the completion of one year of service, as per rule, his service was regularized with effect from 04.05.2007. The petitioner was on temporary duty, that too for short intervals with several breaks in between his previous services. He is not eligible to get regularized the old service with effect from 1990 onwards as mentioned by the petitioner. The petitioner retired from Government service due to superannuation on 31.07.2008. 10. The petitioner was ousted from 2nd respondent’s department for more than 10 times from 10.07.1990 to 31.10.2001. As per O.P. No: 1147/E & AR / A2 / 2001 dated 31.10.2001 the petitioner along with other Investigators was ousted from 2nd respondent’s department on 31.10.2001 5 https://hcservices.ecourts.gov.in/hcservices/ onwards. The petitioner along with other Investigators filed an Original Application No: 7136 to 7140, 7542 and 7543 of 2001 before the Tamil Nadu Administrative Tribunal, Chennai, to challenge the Ousting Order dated 31.10.2001. The Hon’ble Tribunal passed an order quoting that, “This Tribunal cannot create post or cannot make a post permanent without reference to their entitlement or to the factual situation or the consequential burden that may be imposed on the ex-chequer. A policy decision must be taken by the Government and the Government is directed to consider the claim and pass orders”. 11. According to the respondents, the petitioner was ousted from duty for short intervals for several times for want of vacancy, one such time he was ousted on 31.10.2001 A.N. and again appointed for other study only on 14.01.2003 F.N. The break period was more than one year and three months. These facts were suppressed by the petitioner to mislead this Hon’ble Court that he was engaged continuously and without any break. According to the respondents, petitioner was appointed and brought to time scale of pay of Rs. 4,000 – 100 – 6000 only on 04.05.2007 and before that the petitioner has served on temporary basis for short periods of time on consolidated pay, and his services were not regularized as mentioned in the appointment order given to the petitioner. These facts are clearly indicated to the petitioner every time and he accepted the conditions and freshly appointed as Investigator for every time. It is not true that the petitioner has continuously served for 17 years and 10 months without break of service. The petitioner was brought to time scale only on 04.05.2007. As per the Finance (Pension) Department’s Letter No: 92399 / Pension / 2005 – I, dated 13.04.2006 the employees drawing consolidated pay are not eligible for admission to Contributory Pension Scheme. If their services are regularized and brought under time scale of pay, they shall be admitted to the Contributory Pension Scheme from the date of regularization. It is also submitted by the respondents that no option was obtained from the petitioner as alleged by him in respect of opting for the new scheme. It is very clear that as per G.O. Ms. No: 259, Finance (Pension) Department dated 6th August 2003 that the new Contribution Scheme shall apply to all employees who are recruited on or after 01.04.2003. Hence, the petitioner is not eligible for old Pension Scheme and all, those who are appointed on or after 01.04.2003 automatically fall under Contributory Pension Scheme without any option. It is submitted by the respondents that the 2nd respondent sent a copy of petitioner’s representation to the 1st respondent and after going through the merits of the petition, it was found that the petitioner was not eligible for the old Pension Scheme and all those who are appointed on or after 01.04.2003 automatically fall under Contributory Pension Scheme without any option. It is also submitted that 2nd respondent sent a copy of the representation given by the petitioner to the 1st respondent and after considering the same on merits, it was rejected. Though it is 6 https://hcservices.ecourts.gov.in/hcservices/ admitted by the respondents that the 2nd respondent’s department is a pensionable establishment, it is stated by them that the petitioner has served on temporary basis with lots of breaks and had drawn consolidated pay only. The petitioner’s service was regularized in time scale with effect from 04.05.2007 only. The Accountant General ( A& E ), Chennai, has allotted the Index Number as per the Contributory Pension Scheme and hence, he is not eligible for old Pension Scheme. It is submitted that the Finance Department Lr. No: 92399 / Pension / 2005-1 dated 13.04.2006 clearly states that those employees who draw consolidated pay are not eligible for admission even on Contributory Pension Scheme. For all the above reasons, the respondents prayed for dismissal of the writ petition. 12. The first and foremost contention of the learned counsel for the petitioner is that the petitioner was appointed in the year 1990 and had been serving the Government with intermediate artificial breaks and therefore, atleast for the purpose of pensionary benefits the number of years of service put in by the petitioner should be taken into consideration by the respondent Department. Learned counsel would further submit that the legal dictum laid down by the Hon'ble Supreme Court in various decisions that once approval of appointment is granted followed by confirmation, then such appointment will be granted from the date on which the employee was initially appointed in service, shall squarely apply to the case on hand and therefore, the petitioner’s service will have to be taken into account from 10.07.1990 atleast for the purpose of pensionary benefits. 13. Counsel would also rely upon the decision of a Division Bench of this Court reported in 2005 (1) C.T.C. 488 (Indian Council of Medical Research, New Delhi and others vs. K. Rajalakshmi and another). The relevant paragraphs reads thus : " 29. Even the project or department or whatever the name be, can function on yearly renewal basis, but the services of the persons working in such project or any other departments cannot be kept as temporary for more than a certain limited period. Because, the renewal of the project or the departments on yearly basis would not affect its functions and objectives, whereas the services of the persons working in such project or departments are not regularised, if they are working for more than a certain limited period, which would not only affect their career but also their entire life. 30. In this regard, what was held by the Supreme Court in the State of Haryana and others vs. Piara Singh and others, AIR 1992 SC 2131, is squarely applicable to the case on hand. The Supreme Court observed as follows : 7 https://hcservices.ecourts.gov.in/hcservices/ "Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate legislature. This power to prescribe the conditions of service can be exercised either by making Rules under the proviso to Art. 309 of the Constitution or (in the absence of such Rules) by issuing Rules / instructions in exercise of its executive power. The Court comes into the picture only to ensure observance of fundamental rights, statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concern of the Court in such matters is to ensure the Rule of law and to see that the executive ats fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reasons, it is held that equal pay must be given for equal work, which is indeed one "of the directive principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. Where a temporary or ad hoc appointment is continued for long the Court presumes that there is need and warrant for a regular post and accordingly directs regularisation." 31. In the light of the above, we are of the view that when the first respondent puts in more than 25 years of service continuously in NNMB without any break and her appointment is regular and considering her qualification and experience she was promoted to the post of Assistant Research Officer and when especially she is on the verge of retirement, her services have to be regularised with all monetary and service benefits and therefore, we agree with the view taken by the Tribunal that the services of the first respondent have to be regularised. However, we differ from the view of the Tribunal that the services of the first respondent have to be regularised from the date of filing of the writ petition i.e. 25.2.1998 for the following reasons. 32. .... ..... .... 33. In such circumstances, the services of the first respondent have to be regularised from the date of her initial 8 https://hcservices.ecourts.gov.in/hcservices/ appointment, i.e.1.4.1975. When the date of appointment is not disputed and the appointment is regular and there is no violation of any rules in such appointment, the Court cannot postpone the date of regularization from the date of actual appointment to the date of filing of the Writ Petition opr to any other date. In giving effect to the regularization of services, the Court can interfere when the date of appointment is in dispute and the appointment is not regular and any violation of rules is found in the appointment of the concerned, and then the Court, according to the facts and circumstances, can fix the date of effect of regularization, otherwise, the Court cannot interfere." Further, reference was also made to the decision rendered by this Court in S.Malligeswari vs. The State of Tamil Nadu, and others [2011 C.D.J. M.H.C. 036]. Paragraph 8 of the aforesaid decision reads as under : " 8. In the light of the above undisputed facts and the order of Division Bench having become final due to the dismissal of Civil Appeals on 13.03.2008, the petitioners are entitled to get their pension and other benefits as per the then prevailing Tamil Nadu Pension Rules, 1978. There is no dispute that the petitioners were appointed in Secondary Grade Teacher vacancies in sanctioned posts in aided schools before 01.04.2003. The Government order dated 06.08.2004 specifically states that persons appointed / recruited after 01.04.2003 are not governed under the Tamil Nadu Pension Rules, 1978 and will be governed under the new scheme. The petitioners having been appointed prior to 19.05.1988 all the petitioners are given Child Psychology Training in terms of G.O. Ms. No: 115, Education dated 03.10.2002. Hence, G.O. Ms. No: 430 Finance dated 06.08.2004 cannot be applied to the petitioners. The learned counsel for the petitioner submits that the petitioners will be satisfied if the petitioners are given the relief of Pension Scheme applicable prior to 01.04.2003 and the G.O. Ms. No: 430 Finance (Pension) Department, dated 06.08.2004 need not be quashed." In an unreported decision of this Court rendered in W.P. Nos: 21573 of 2000 and 6154 of 2001 dated 05.12.2003, this Court held that, " 5. Following the above decision of this Court and taking note of the submission of the learned counsel for the respondents, the respondents are directed to consider the case of the members of the petitioner union for their permanent absorption; while doing so the artificial break may be 9 https://hcservices.ecourts.gov.in/hcservices/ ignored." 14. Per contra, Mr.S. Gopinathan, the learned Additional Government Pleader appearing for the respondents submit that the petitioner was only temporarily appointed on consolidated pay and that he is eligible for D.A. as per the Rules in force and he is not eligible for any other allowances. He would also submit that the petitioner was ousted from duty several times for short intervals for want of vacancy and in one such time, he was ousted on 31.10.2001 and was again appointed only on 14.01.2003 and thereby the break period was more than one year and three months and therefore, there is no question of regularizing the petitioner’s services from the date of his initial appointment. It is petitioner's contention that the Contributory Pension Scheme provided will have a prospective effect from the date of claim namely 01.04.2003 and the petitioner cannot claim such benefits because during such period he was not made permanent nor his service was confirmed. In view of petitioner's service for the shortest period, he cannot claim any benefits under the pension scheme and for such things, the respondents cannot be faulted with. The learned Additional Government Pleader relied on the Supreme Court decision reported in 2010 (6) Supreme Court Cases 791 [S.Sumnyan and others vs. Limi Niri and others], the relevant paragraph of which reads thus : " 44. We may here also appropriately refer to another decision of this Court in G.P. Doval v. Government of Uttar Pradesh (1984 (4) S.C.C. 329)