IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.04.2010 CORAM THE HONOURABLE MR.JUSTICE T.RAJA W.P.No.29695 of 2004 P.Perumal ... Petitioner Vs. 1.Government of Tamil Nadu, Rep. by its Secretary to Government, Transport Department, Chennai - 600 009. 2.The Tamil Nadu State Transport Corporation (Salem Division I) Ltd., Salem - 636 007, Rep. by its General Manager. 3.Tamil Nadu State Transport Corporation Employees' Pension Fund Trust, Rep. by its Administrative Officer, "Thiruvalluvar House" Pallavan Salai, Chennai - 600 002. ... Respondents Petition filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorarified Mandamus, to call for the records of the respondents 1 and 2 in (1) Lr.No.26093/D/2001, dated 23.09.2002 and (2) Memo Pension.1/06277/Pension/2001, dated 28.03.2001, to quash the same and issue consequential directions to the respondents to grant monthly pension to the petitioner herein from 01.10.1999 with 18% interest. For petitioner : Mr.M.Ravi For R1 & R2 : Mr.B.Vijay Government Advocate For R3 : Mr.K.Malaikannu for M/s.Rajnish Pathiyil https://hcservices.ecourts.gov.in/hcservices/ ORDER The petitioner, P.Perumal has filed the present writ petition seeking for issuance of a Writ of Certiorarified Mandamus, to call for the records of the respondents 1 and 2 in (1) Lr.No.26093/D/2001, dated 23.09.2002 and (2) Memo Pension.1/06277/Pension/2001, dated 28.03.2001, quash the same and issue consequential directions to the respondents to grant monthly pension to the petitioner herein from 01.10.1999 with 18% interest. 2. The petitioner joined the service, as a Driver on 02.06.1979, in the Anna Transport Corporation, Salem. He started working on daily wage basis. Thereafter, by order dated 09.07.1980 in Pro.No.E4-E5/9174/ATC/BO-2, the service of the petitioner was regularized as Driver with effect from 01.07.1980. Later on, Anna Transport Corporation was renamed as the Tamil Nadu State Transport Corporation (Salem Division I), the 2nd respondent herein. In the course of his service in the 2nd respondent Corporation, the petitioner underwent open-heart surgery in the Apollo Hospital, Chennai and took treatment after undergoing the said surgery from 23.12.1995 to 06.01.1996. The major operation undergone by the petitioner did not allow him to undertake any arduous job. Hence, the petitioner was continuously on leave thereafter for one year, during which period, he was paid full pay and allowances for the first 3 months and half pay for 9 months. Subsequently, on medical advice, he was allotted to do duty in light vehicles for nearly two years and thereafter, he was forced to drive heavy vehicles and work as Driver. 3. Therefore, the petitioner made a representation expressing his inability to work in heavy vehicles especially after open-heart surgery. Since no favourable response came from the authorities, he was compelled to work as Driver in heavy vehicles. In the year 1999, the Corporation introduced the scheme of voluntary retirement. In view of that, the petitioner opted to go for voluntary retirement due to his health condition. 4. Accordingly, he applied for voluntary retirement on 23.06.1999 to the 2nd respondent in the prescribed format, under the bona fide belief that he was eligible for pension, if his request for voluntary retirement is accepted. After the submission of his application seeking voluntary retirement, the 2nd respondent also, vide its Pro.No.E9/17420/TNSTC (Salem Dn.I) 99-18, dated 15.10.1999, issued orders permitting the petitioner to retire from service voluntarily on 30.09.1999. Unfortunately, the petitioner was not paid pension to which he was eligible under the rules in force at the time of his retirement. On further enquiries, it was found that the petitioner was not eligible for pension since he has not completed 20 years of service. https://hcservices.ecourts.gov.in/hcservices/ 5. In view of the subsequent developments, the petitioner made a representation dated 14.03.2001 to the 2nd respondent herein, narrating the entire facts and pointing out that he had put in a total service of 20 years and 2 months and 14 days from 16.07.1979 to 30.09.1999 and also the petitioner had to be on medical leave for 15 months in all due to his open heart surgery and consequent rest thereafter and that if he had not gone on medical leave, he would have become eligible for pension under the new rules. In view of the circumstances mentioned above, the petitioner requested the 2nd respondent for granting pension from October 1999. But, the 2nd respondent, by his proceedings in Pro.No.Pension.I/06277/Pension/2001, dated 28.03.2001, informed the petitioner that, as per the rules in force, an employee opting for voluntary retirement should have served a minimum of 20 years, to make himself eligible for pension and since he had not served the minimum period of 20 years, pension cannot be sanctioned to the petitioner. The petitioner submitted a detailed appeal dated 12.05.2001 to the Government/1st respondent, bringing to their notice the above facts and requesting the Government to grant pension, taking into account his service of 20 years 2 months and 14 days from 16.07.1999 to 30.09.1999 by including the medical leave as qualifying service. Since no orders were passed by the respondents, the petitioner was constrained to file Writ Petition in W.P.No.18244 of 2001 on the file of this Court. By order dated 04.10.2001 in W.P.No.18244 of 2001, this Court issued a direction to the 1st respondent to consider the petitioner's representation dated 12.05.2001 and pass orders on merits and in accordance with law within a period of twelve (12) weeks from the date of receipt of a copy of the order. 6. Pursuant to the above order passed by this Court, the 1st respondent by his Lr.No.26093/D/2001, dated 23.09.2002, informed the petitioner that his request for grant of pension cannot be complied with under rules in force as the qualifying service put in by the petitioner is 19 years and 8 months only and as per the existing pension scheme, pension is payable only to those who have put in a minimum of 20 years of qualifying service. 7. Again, the petitioner had made a representation dated 21.12.2002 to the 1st respondent herein for reconsideration of the matter and in reply, the 3rd respondent by letter C.No.44/B2/TSTC/2003, dated 14.02.2003, has informed the petitioner that the proposal to grant pensionary benefits to the employees of the State Transport Corporation, who have rendered less than 20 years of service, and who opted for voluntary retirement, are under the consideration of the Government. In view of the above said circumstances, the petitioner has filed the present Writ Petition before this Court. https://hcservices.ecourts.gov.in/hcservices/ 8. The learned counsel appearing for the petitioner submits that this Court, in various orders, have granted the benefit of pension by even rounding, off the service to the nearest year. The fraction of service exceeding six months or more shall be treated as one year and the service less than six months shall be ignored. In support of his submission, he relied upon Rule 13 (A) of the Tamil Nadu Transport Corporation Employees Pension Fund Rules. 9. In reply, the learned Government Advocate appearing for respondents 1 and 2 submits that the Rule 16(a)(ii) of the Tamil Nadu State Transport Corporation Employees Pension Fund Rules which came into force with effect from 01.09.1998, contemplates that the voluntary retirement pension could be made applicable if an employee has rendered the qualifying service of 20 years or more and attained the age of 50 years. As the petitioner has not completed the qualifying service of 20 years as prescribed in the Tamil Nadu State Transport Corporation Employees Pension Fund Rules cited above, he is not entitled to receive pension. 10. Similarly, the learned counsel appearing for the 3rd respondent, The Tamil Nadu State Transport Corporation Employees' Pension Fund Trust also submits that admittedly, the petitioner has not put in 20 years of service. Therefore, as prayed for, payment of pension cannot be considered in view of the Rule 16(a)(ii) of the Tamil Nadu State Transport Corporation Employees Pension Fund Rules which came into force with effect from 01.09.1998. 11. Heard the learned counsel on both sides. 12. No doubt, the petitioner, on the date of submitting his application, as per the counter affidavit filed by the 1st respondent, has rendered a total service of 20 years, 2 months and 14 days. From the total service, if the non qualifying service from 16.07.1979 to 30.09.1999 is subtracted, the net qualifying service is 19 years, 7 months and 29 days. 13. This has been the reason for which the prayer of the petitioner for payment of pension was denied. It is relevant to keep in mind the vital aspect that the petitioner, while working as a Driver was unfortunately compelled to undergo open-heart surgery in Apollo Hospital and was on leave subsequently, on medical advice. After undergoing the open-heart surgery, the petitioner was not able to handle heavy vehicles. 14. Therefore, the petitioner submitted a written representation requesting the management to give him light duty to handle light vehicles. Though his earlier prayer was considered, subsequently, he was asked to handle heavy vehicles. Therefore, when the 3rd respondent management came forward with the scheme of https://hcservices.ecourts.gov.in/hcservices/ voluntary retirement, the petitioner immediately wanted to opt for voluntary retirement by submitting his application and the 2nd respondent also, after considering the petitioner's application, accepted the same and permitted him to retire from service voluntarily on 30.09.1999. 15. If the 3rd respondent had not permitted the petitioner to retire from service voluntarily by pointing out that the petitioner should have rendered 20 years of service for the purpose of enjoying the pension benefit, the petitioner could have continued the rest of the days till he acquired the qualifying 20 years of pensionable service so as to qualify himself for the purpose of getting the benefit of pension scheme. Having allowed the petitioner to retire voluntarily on the belief that the petitioner had qualifying service for pension, it is too late to take advantage of their own wrong. 16. Since 2nd respondent has already passed an order of permitting the petitioner to retire from service voluntarily, the petitioner took voluntary retirement and retired from service. The Rule of Tamil Nadu State Transport Employees Corporation Pension Fund Rules also came into force with effect from 01.09.1998. 17. Though the Transport Corporation Employees Pension Fund Rules was issued on 15.12.2001, the benefit of the pension fund Rules was given retrospective effect from 01.09.1998. 18. Unfortunately, the petitioner retired from service on 30.09.1999 after putting in a qualifying service of 19 years 7 months and odd. Rule 13(a)(ii) of Tamil Nadu State Transport Corporation Employees Pension Fund Rules, which is relevant, is extracted hereunder:- " a) In the case of a "New Entrant" entering into service on or after 01.09.1998, the "actual service" shall be treated as eligible service. The total actual service shall be rounded off to the nearest year. The fraction of service for six months or more shall be treated as one year and the service less than six-months shall be ignored." The rule itself prescribes that any fraction of period exceeding six months should be rounded of to the nearest year. That being the rule position, the petitioner having put in a service of 19 years and 7 months and 29 days, the same should be taken as 20 years of service. This Court, in a catena of decisions has held that any fraction of a period exceeding six months shall be rounded of to the nearest year. This being the settle legal as well as the rule position, I am of the considered view that the qualifying service of 19 years 7 months and 29 days should be treated as 20 years of service for all purposes. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, while setting aside the impugned order, this Court allows the Writ Petition by directing the respondents to grant monthly pension to the petitioner from 01.10.1999 without any interest within a period of three months from the date of receipt of a copy of this order. No costs. smn Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Secretary to Government, Government of Tamil Nadu, Transport Department, Chennai - 600 009. 2.The General Manager, The Tamil Nadu State Transport Corporation (Salem Division I) Ltd., Salem - 636 007. 3.The Administrative Officer, Tamil Nadu State Transport Corporation Employees' Pension Fund Trust, "Thiruvalluvar House" Pallavan Salai, Chennai - 600 002. + 1 cc to Mr. Rajnish, Advocate SR No.26698 + 1 cc to Mr. M. Ravi, Advocate SR No.25528 JSV(CO) SR/27.5.2010 W.P.No.29695 of 2004 https://hcservices.ecourts.gov.in/hcservices/