IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 27.09.2006 CORAM: THE HON'BLE MR. JUSTICE P.JYOTHIMANI Writ Petition Nos.5856, 6891 & 23181 of 2006 & W.P.M.P.Nos.6342 & 6343 in W.P.No.5856 of 2006 W.P.M.P.Nos.16394, 16395 & 7471 in W.P.No.6891 of 2006 W.P.M.P.No.2 in W.P.No.23181 of 2006 Tamil Nadu Government Transport Retired Employees Welfare Association, Formerly known as (Tamil Nadu Transport Employees Urimaigal Sangam) Reg.No.2599/CNI rep.by its General Secretary, M.Rajagopal,25/14, Ponnambalam Salai, K.K.Nagar, Chennai 600 078. ... Petitioner in W.P.No.5856/2006 State Transport and Transport Corporations’ Retired employees’ Welfare Association, (Reg.No.127 of 2001) Rep.by its President, No.2, Pallavan Salai, (Kalai Aranga Valaagam), Chennai 600 002. ... Petitioner in W.P.No.23181/2006 B.Nesamony ... Petitioner in W.P.No. 6891/2006 Vs. Government of Tamil Nadu, rep.by its Special Commissioner and Secretary to Government, Transport (RW) Department, Fort St. George, Chennai 600 009. ... Respondent R1 in W.P.No.5856/2006 ... Respondent in W.P.No.23181/2006 The State of Tamil Nadu, rep.by the Secretary to Government Transport Department, Fort St.George, Chennai 600 009. ... Respondent R1 in W.P.No.6891/2006 The State of Tamil Nadu, rep.by the Secretary to Government, Finance Department, Fort St. George, Chennai 600 009. ... Respondent R2 in W.P.No.5856/2006 ... Respondent R2 in W.P.No.6891/2006 https://hcservices.ecourts.gov.in/hcservices/ The Director of Treasuries & Accounts, Panagal Building, Jennis Road, Saidapet, Chennai 600 015. ... Respondent R3 in W.P.No.5856/2006 Director of Pension, Pension Pay Office, No.807, V Floor, Anna Salai, Chennai. 6 ... Respondent R4 in W.P.No.5856/2006 The State Express Transport Corporation Ltd., rep.by its Managing Director, Pallavan Salai, Chennai 600 002. ... Respondent R3 in W.P.No.6891/2006 PRAYER IN W.P.No.5856 of 2006: This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus, calling for the records of the 1st respondent in G.O.Ms.No.42 dated 27.05.2005 in so far as the applicability of para 5(a) and 5(b) relating to fixing of cut off date as 01.09.1998 for grant of pension under the said G.O.and quash the same in so far as the petitioner's Association is concerned and direct the respondents to forthwith extend the Government Pensionary benefits to the members of the Petitioner's Association who retired on or after 01.09.1998 in the light of the directions of the Hon'ble Supreme Court in Civil Appeal Nos.1444 and 1445 of 1999 dated 29.10.2003 and in the Review Petition Nos.648 and 649 of 2004 dated 01.02.2005. PRAYER IN W.P.No.6891 of 2006: This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus, calling for all the connected and relevant records relating to G.O.Ms.No.42, Transport Department dated 27.05.2005 passed by the first respondent and quash the same in so far as paragraph 5(b) of the G.O. is concerned and direct the first respondent to sanction and pay to the petitioner, his Government pensionary benefits for the petitioner’s Government service rendered in the erstwhile Tamil Nadu State Transport Department taking into account the cut-off date fixed as 01.04.1982 and pay his arrears of pension from 01.01.1988 as per the directions of the Hon’ble Supreme Court of India in its judgment dated 29.10.2003 in Civil Appeals Nos.1444-1445 with 1446-1452 of 1999 and C.A.No.8507 of 2003. PRAYER IN W.P.No.23181 of 2006: This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus, to quash G.O.Ms.No.42, dated 27.05.2005 issued by the Respondent Government after calling for the records from the Respondent inasmuch as para 5(b) is concerned, as illegal and unconstitutional and consequently direct the respondent to pay https://hcservices.ecourts.gov.in/hcservices/ pension to all the employees of State Transport Corporations, who retired after 01.09.1998 for the services rendered by them in the Transport Department of the Government as per G.O.Ms.No.378, dated 18.04.1975, read with G.O.Ms.No.1028, dated 23.09.1995, as interpreted by the Supreme Court in 2003(10) SCC 503 with arrears with penal interest of 18% per annum. For Petitioner in W.P.No.5856/06 : Mr. D.S.Rajasekaran For Petitioner in W.P.No.6891/06 : Mr. D.Sadhasivan For Petitioner in W.P.No.23181/06 : Ms. R.Vaigai For Respondents : Mr. R.Viduthalai Advocate General Asst.by Mr.G.Sankaran A.G.P. O R D E R These writ petitions are filed challenging G.O.Ms.No.42 dated 27.05.2005 passed by the Government in so far it relates to paragraph 5(b) and consequently to direct the respondents to pay pension to all the employees of the State Transport Corporations who retired after 01.09.1998 for service rendered by them in the Tamil Nadu State Transport Department as per G.O.Ms.No.378 dated 18.04.1975 read with G.O.Ms.No.1028 dated 23.09.1995 and in the light of the order of the Hon’ble Supreme Court in Civil Appeal No.1444 & 1445 of 1999 order dated 20.10.2003 and reported in 2003 (10) SCC 503 and subsequent review petition in Review Petition No.648 and 649 of 2004 dated 01.02.2005 along with interest at the rate of 18% per annum. 2. The writ petitioners in W.P.No.5856 of 2006 and W.P.No.23181 of 2006 are the registered Associations consisting of retired employees of the Tamil Nadu State Transport Department of the Government and the Tamil Nadu State Transport Corporations with the object of protecting the welfare and common interest of its members. 3. The writ petitioner in W.P.No.6891 of 2006 was appointed as a Conductor by the Director of Tamil Nadu State Transport Department, Chennai - 2 and he joined on 01.01.1971. Subsequently he was absorbed in the present State Express Transport Corporation Ltd., and retired from service on attaining the age of superannuation on 31.05.2001 and he has completed more than 10 years of government service as on 01.04.1982 and became eligible to get Government pension from 01.01.1988 on wards as per the judgment of the Hon’ble Supreme Court. The facts leading to filing of the present writ petitions as mentioned in the affidavit filed by the petitioners in support of their writ petitions are as follows:- 4. The erstwhile employees of the Tamil Nadu State Transport Department which were forming part of the Government Department and consequently the employees were treated as Government servants and were working for more than 10 years, were absorbed permanently in the Tamil Nadu State Transport Corporations after the year 1973, https://hcservices.ecourts.gov.in/hcservices/ when the Corporations were created for various districts and ultimately it was on 15.09.1975, the Tamil Nadu State Transport Department was wound up and all assets and liabilities were transferred to the Tamil Nadu State Transport Corporations in the respective districts. It was at the time of absorption into the Tamil Nadu State Transport Corporations it was assured that they would continue to receive the same emoluments and enjoy the same conditions of ‘Service’ and privileges till such time the Tamil Nadu State Transport Corporations framed their own rules. As far as the employees were concerned they continued to function in the same place except that the name of the employer was changed as the Tamil Nadu State Transport Corporation. The change over from Government service to Corporation service was not a matter of choice of employees. As per G.O.Ms.No.1028 Transport Department, dated 23.09.1985 read with G.O.Ms.No.284 Finance Department dated 31.03.1980 wherein the cut-off date for absorption of employees in the Tamil Nadu State Transport Corporations was fixed on 01.05.1975 / 15.09.1975. It was stated that those employees who had put in not less than 10 years of net qualifying Government service as on 01.05.1975 / 15.09.1975 are entitled to get pro-rata Government pension with effect from the date of their absorption in the Tamil Nadu State Transport Corporations in addition to their wages in the Tamil Nadu State Transport Corporations. Accordingly, a settlement was arrived at along with more than 5000 employees during 1986 - 1989. 5. It is also stated, that at the relevant point of time, the Government has created several other Corporations also in respect of various sectors and departments and Government Order in G.O.Ms.No.378 dated 18.04.1975 while providing for pension / gratuity has also categorically stated that in addition to the pay in the public sector undertakings, the person who are deputed to the Corporations will be entitled to pension / gratuity earned by him in Government service prior to such absorption and if the qualifying service under the Government was less than 10 years, gratuity and death cum retirement gratuity allowance was payable. It was also stated that such persons are permitted to draw their pension / gratuity immediately on absorption in the Tamil Nadu State Transport Corporations. It was also stated in the said G.O.Ms.No.378 providing for computation of pension that in cases where an officer at the time of absorption has less than 10 years of service who is not entitled to pension, the payment of proportionate pension does not arise and he will be eligible to proportionate service gratuity in lieu of pension and death cum retirement gratuity based on length of service. It was in G.O.Ms.No.284 dated 31.01.1980 by superseding the earlier G.O. including G.O.Ms.No.378 dated 18.04.1975, the Government has said that pension in respect of eligible Government servants who were absorbed in the Tamil Nadu State Department Corporations would be calculated at the time of transfer but payable by the Government only after retirement of the employees from the Tamil Nadu State Transport Corporations and the payment of pension was suspended during his employment in the Corporation. https://hcservices.ecourts.gov.in/hcservices/ 6. It was also stated in the said G.O. that the employees at the time of absorption into the Tamil Nadu State Transport Corporations having less than 10 years of service in Government were not entitled for pension. Since the said G.Os. has fixed 01.05.1975 as a cut-off date for calculation of terminal benefits and the Corporation has issued a circular stating that option should be exercised before dated 28.02.1982 without giving a choice to the employees absorbed into the Tamil Nadu State Transport Corporation to go back into the Government service and also stating that failing option it will be deemed that the employees wish to continue in service of the Corporation. It was in those compelling circumstances an option had to be exercised. 7. The said G.O. which has fixed the cut-off date as 01.05.1975 apart from taking away the rights of pension etc., as stated above, was challenged before this court and in W.P.No.1917 and 1928 of 1980 by order dated 18.01.1983 the said G.O.Ms.No.284 dated 31.01.1980 was strucked down which was confirmed on appeal by the Division Bench in Writ Appeal No.522 of 1992 and 962 of 1993 on 16.09.1997 on the said appeals filed by the respondents. 8. In the mean time, the Government has passed G.O.Ms.No.1028 dated 23.09.1985 stating that the employees who were absorbed to the Transport Corporations who were erstwhile employed in the Tamil Nadu State Transport Department of the Government will be given the benefit of pension and gratuity namely an optee will be entitled to pension / gratuity earned by him in the Government service prior to absorption apart from the fact that will be entitled as per the Madras Liberalized Pension Rules, 1960, in addition to his pay in the public undertaking. It was also stated that such persons are entitled to draw their pension / gratuity earned in the Government service from the date of their absorption in the Tamil Nadu State Transport Corporations. It was stated that arrears of monthly pension from the date of permanent absorption should be paid immediately in respect of retired employees or legal heirs of the deceased employees. The employees who were absorbed to the Tamil Nadu State Transport Corporations and who have not got the requisite 10 years of service in the Tamil Nadu State Transport Department, as on 01.05.1975, filed W.P.No.6969 of 1992 etc., batch in which by an order dated 09.01.1992 this Court has held that the fixation of cut-off date 01.05.1975 was arbitrary and not related to actual absorption, since option for absorption was asked for, till 1982. Therefore, this Court has struck down the cut-off date fixed in the said G.O.Ms.No.1028. Simultaneously, another Union of Transport workers have also filed in W.P.No.1712 of 1988 on the same issue and that was also allowed on 22.07.1993 relying upon the order in W.P.No.6969 of 1990 dated 09.01.1992 holding that the cut- off date should be related to final option and as state above the cut-off date has extended upto 1982. As stated above it was against all the said orders when the appeals were filed in Writ Appeal No.522 of 1992 batch the Division Bench has dismissed all the Writ Appeals by the judgment dated 16.09.1997 holding that till the individual employees exercise their option on their volition they must be deemed to continue as Government employees and https://hcservices.ecourts.gov.in/hcservices/ declaring that 1982 shall be adopted as a uniform date. The Government has further filed appeal to the Hon’ble Supreme Court which was dismissed on 29.10.2003 as reported in 2003(10) SCC 503 in the Government of Tamil Nadu and others Vs. M.Ananchu Ansari and others holding that the revised cut-off date in respect of all the employees of the Tamil Nadu State Transport Corporations who have opted from the Tamil Nadu State Transport Department shall be uniformly, 01.04.1982 irrespective of the actual date of option and further holding that as far as the payment of arrears of pension the same should be computed from 01.01.1988 onwards and directed the Government to extend the benefits to all the eligible employees within a period of four weeks from the date of the judgment. Not being satisfied with that, the Government has also filed review before the Honble Supreme Court and ultimately, the review petition was also dismissed on 01.02.2005 reported in 2005(2) SCC 332 granting four months time from the date of the judgment for implementation. 9. It was thereafter the Government has issued the impugned G.O.Ms.No.42 dated 27.05.2005. It was in that G.O. in paragraph 5 (a) it is stated that in respect of employees of the erstwhile Tamil Nadu State Transport Department absorbed in the Tamil Nadu State Transport Corporations who retired before 01.09.1998, they are entitled for pension as per the Hon’ble Supreme Court order, if they have put in the qualifying service of 10 years as on 01.04.1982. However, in paragraph 5(b) it is stated that in respect of the employees who retired after 01.09.1998, they will be paid pension only as per the scheme of the Tamil Nadu State Transport Corporation and they are not eligible for pension as per G.O.Ms.No.1028 dated 23.09.1985. The said the impugned G.O. namely clause 5(b) is stated to have been introduced for the reason that such of those employees who have retired after 01.09.1998 having been absorbed in the Tamil Nadu State Transport Corporations are to be paid pension as per the pension scheme of the Tamil Nadu State Transport Corporation issued in G.O.Ms.No.135 Transport dated 15.12.2000 by which the Tamil Nadu State Transport Corporation Employees Pension Fund Rules were framed and also with reference to Rule 7 of the Tamil Nadu Pension Rules. 10. According to the petitioners, Rule 7 of the Tamil Nadu Pension Rules does not support the action taken by the Government, in denying the pension for employees who were transferred to the Transport Corporations and retired after 01.09.1998 and there are many number of cases wherein even in respect of employees who retired from the Corporations before the Hon’ble Supreme Court Judgment but after 01.09.1998 the Government paid pension and there are atleast two instances of one V.Gopu and V.Chandran who have retired from the Madras Metropolitan Transport Corporation with effect from 15.12.2000 and 21.10.1998 were cited. 11. Further, according to the petitioners, the term in the Tamil Nadu State Transport Corporation Employees Pension Fund Rules including the term "Actual Service" is relevant only for calculation of pension for the employees of Corporation. According https://hcservices.ecourts.gov.in/hcservices/ to the petitioners, even a reading of the Corporation Pension Rule shows that the service rendered under the Government before the employees were absorbed into the Tamil Nadu State Transport Corporations were excluded while calculating the pension under the Tamil Nadu State Transport Corporation service. Therefore, in effect clause 5(b) of the impugned Government Order takes away the right of pension of the employees absorbed from the department to the Tamil Nadu State Transport Corporation in respect of the services rendered by them in the Tamil Nadu State Transport Department of the Government which is illegal. The Government cannot absolve its obligation to pay pension to employees who retired after 01.09.1998, since the same is statutory obligation under the Tamil Nadu Pension Fund Rules along with the G.O.Ms.No.378 dated 18.04.1975 and the G.O.Ms.No.1028 dated 23.09.1995 as ultimately decided by the Hon’ble Supreme Court in the judgment reported in 2003(10) SCC 503. Otherwise, it is the contention of the petitioners that the impugned portion of the Government Order is not only violative of article 14, 16 and 21 of the Constitution of India and it is contrary to the judgment of the Hon’ble Supreme Court stated above. 12. It is also the case of the petitioners that by payment of pension to the Tamil Nadu State Transport Corporation Employees who were absorbed in the Tamil Nadu State Transport Corporations in respect of the service rendered by them in the Government while they were in the Tamil Nadu State Transport Department and the payment of pension to them in respect of the Services rendered in the Tamil Nadu State Transport Corporation as per the Transport Corporation Employees Pension Fund Rules does not mean it is a double pension and therefore it cannot be said to be against rule 7 of the Tamil Nadu Pension Rules. 13. On the other hand the respondents have filed counter affidavit including the additional affidavit. 14. While admitting that the erstwhile Tamil Nadu State Transport was wound up with effect from 14.09.1975 and its employees were permanently absorbed in the various Transport Corporations, the respondents would state that at that time there was an agreement entered as per section 18(1) of the Industrial Disputes Act, 1947 by which all the erstwhile Tamil Nadu State Transport Department Employees were treated as absorbed permanently into the Corporation Service with effect from 01.05.1975 in respect of all the Transport undertakings except the State Express Transport Corporation Ltd., for which the date was 15.09.1975 and thereafter they ceased to be the Government servants. According to the respondents, they have implemented the judgment of the Hon’ble Supreme Court in following manner namely: "a) The erstwhile Tamil Nadu State Transport Department employees who were absorbed in Tamil Nadu State Transport Corporations and retired before 01.01.1988 (or) after 01.01.1988 but before 01.09.1998 are entitled for pension, if they had put in the qualifying service https://hcservices.ecourts.gov.in/hcservices/ of 10 years as on 01.04.1982 as per the Tamil Nadu Pension Rules. b) As per clause 2(p)(ii) and clause 14(b) of the Tamil Nadu State Transport Corporation Employees Pension Fund Rules issued in G.O.Ms.No.135, Transport, dated 15.02.2000 and with reference to rule 7 of the Tamil Nadu Pension Rules the erstwhile Tamil Nadu State Transport Department employees who were absorbed in Tamil Nadu State Transport Corporations and retired after 01.09.1998 are entitled for pension as per the pension scheme of the State Transport Undertakings brought into force by the settlement under section 12(3) of the Industrial Disputes Act 1947 and they are covered under the rules and GOs applicable to them and therefore not entitled for the second pension as per G.O.Ms.No.1028, Transport, dated 23.09.1985." 15. The respondents would also state that with regard to the pensioners who retired before or after 01.01.1988 but before 01.09.1998 they have no objection for granting pension by treating the qualifying service as on 01.04.1982 but paying the amounts from 01.01.1988 but in respect of those who retired after 01.09.1998, there was a settlement under Section 12(3) of the Industrial Disputes Act, based on which the pension scheme was introduced to the employees of the Transport Corporations and inasmuch as the employees who retired after 01.09.1998 were governed by the Tamil Nadu State Transport Corporation Undertaking Pension Scheme and it is under the scheme of the Corporations while granting pension the services rendered by those employees in the erstwhile Government department were also taken into account. Therefore, compelling the respondents to pay pension to those employees separately in respect of the services rendered by them in the Tamil Nadu State Transport Department before their absorption into the respective Corporations in addition to the pension payable under the Corporation Pension Rules will amount to directing the respondents to pay pension two times in respect of the services rendered by these employees in Government department and therefore, according to the respondents, it is hit by Rule 7 of the Tamil Nadu Pension Rules. 16. According to the respondents, the settlement arrived under Section 12(3) of the Industrial Disputes Act, based on which the pension rule have been framed by the respective Corporations, G.O.Ms.No.1028 transport dated 23.09.1985 cannot be relied upon by the petitioners. It is further stated that in respect of employees retired after 01.09.1998 having 10 years qualifying service as on 01.05.1975 / 15.09.1975 the date on which they were absorbed in the Tamil Nadu State Transport Corporations are paid pension as per G.O.Ms.No.1028 dated 23.09.1985 provided the gross pension calculated notionally including the period of pensionable service rendered by restricting total eligible service of 30 years. The difference between gross pension and the amount already received by the individual for the service rendered with the Government or the pension eligible under the scheme whichever is less, is eligible https://hcservices.ecourts.gov.in/hcservices/ pension under Rule 14(b) of the Tamil Nadu Transport Undertaking Pension Scheme. As per G.O.Ms.No.42, Transport, dated 27.05.2005 in respect of the persons who have retired after 01.09.1996, para 5 (b) of the Government Order, which provides for pension. It is also the case of the respondents that the members of the Association are drawing higher rate of pension on par with Government servants under the State Transport Undertakings Pension Scheme brought into force by settlement under Section 12(3) of the Act. Taking into account the entire service of the members both in the Tamil Nadu State Transport Department and the Tamil Nadu State Transport Corporation Service put together as per clause 5(b) of G.O.Ms.No.42 dated 27.05.2005, rule 14(b) is applicable only in cases who were on receipt of pension on completion of 10 years of qualifying service as on date of absorption in State Transport under taking namely 01.05.1995/15.09.1975 under G.O.Ms.No.1028 dated 23.09.1985. 17. Apart from that they are also eligible for pension under para 5(b) of the Tamil Nadu State Transport Undertakings Pension Scheme. Since the workers have voluntarily agreed for the settlement under Section 12(3) of the Industrial Disputes Act, which contemplates a comprehensive pension taking into account both services rendered in the Government Department and the subsequent Corporation, therefore in addition to that they cannot claim any further pension. 18. In additional counter affidavit filed dated 14th July 20006 by the Deputy Secretary to Government, Tamil Nadu State Transport Department, Chennai 9, it is stated that employees who were on the roles of the State Transport undertakings as on 31.08.1998 should have furnished option of joining new pension scheme or continue to be a member in the existing Employees Contributory Provident Fund Scheme within 3 months from the date of signing the settlement as per clause 9 of the settlement arrived under the Industrial Disputes Act, on 13.02.1999. The petitioner in W.P.No.5856 of 2006 who is the General Secretary and its Executive President have exercised their option for new pension scheme of Corporation and drawing pension and other benefits under the Transport undertaking pension scheme. The respondents would state that the Hon’ble Supreme Court has not given direction that 01.04.1982 must be taking into consideration for arriving at the minimum qualifying service of 10 years to be eligible for pension. The Apex Court has only given 01.04.1982 as a cut-off date for the limited purpose of assessing the requisite length of service of 10 years and not earned any pension. It is also the respondents’ case that the Honble Apex Court has not given