IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10.12.2010 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION Nos.11343 & 18414 of 2009 and connected miscellaneous petitions. .. T.Chellan .. Petitioner in both the Writ Petitions vs. 1.State of Tamil Nadu rep.by the Secretary of Government Rural Development & Panchayat Union Secretariat Fort St.George, Chennai 600 009. 2.The Director of Rural Development Panagal Building Chennai 15. 3.The District Collector Kancheepuram Kancheepuram District. 4.The Block Development Officer Panchayat Union Acharapakkam. 5.The District of Local Fund and Audit Kuralagam, Chennai 1. .. Respondents in both the Writ Petitions. Writ Petitions filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus direct the 5th respondent to sanction pension and other retirement benefits to the petitioner with effect from 30.4.2001 and consequently pay the arrears of pension and other retirement benefits with eligible interests thereon and pay such further or other orders( WP 11343/2009) and Writ of Certiorarified Mandamus after calling for the concerned records relating to the order No.45412/E/2002 dated 22.12.2008 passed by the 1st respondent and order No.Na.Ka.20838/2009 Pa.Aa.4 dated 9.7.2009 passed by the 3rd respondent and quash the same and consequently direct the 5th respondent to sanction pension and other retirement benefits to the petitioner, with effect from 30.4.2001 and consequently pay the https://hcservices.ecourts.gov.in/hcservices/ arrears of pension and other retirement benefits with eligible interest. For petitioner : Mr.G.Gnanasekar For respondents : Mr.N.Senthilkumar Addl.Govt.Pleader for R.1to3, R.5 Mr.V.R.Thangavel for R.4 .. COMMON ORDER The writ petitioner filed these writ petitions for direction against the 5th respondent, the Director of Local Funds Audit and to sanction pension and other retirement benefits with effect from 30.4.2001 with arrears and challenged the order of the third respondent, the District Collector dated 9.7.2009 which was passed based on a letter of the Secretary to Government dated 22.12.2008 by which the claim of the petitioner for payment of provisional pension came to be rejected. 2. The petitioner was appointed as a Grade-II Gang Mazdoor in Acharapakkam on 25.10.1965 along with one Munusamy. The petitioner reached the age of superannuation on 30.4.2001 as Special Grade Mazdoor and he was allowed to retire as per the orders of the Block Development Officer, Acharapakkam, the 4th respondent dated 30.4.2001. a) The Government issued various orders in G.O.Ms.No.1661/RDLA dated 17.10.1979 and G.O.Ms.No.868 dated 17.6.1983 to the effect that Gang Mazdoors in Panchayat Unions who have put in more than 10 years of service as on 1.4.1979 must be kept under regular scale of pay of Rs.200-5-300 and that the Government created 1443 posts of Gang Mazdoors in Panchayat Unions in order to bring such persons who have completed 10 years of service into regular establishment and permission was granted to the Director of Rural Development to bring them in service and for extension of pension scheme. b) It is stated that the 4th respondent on 31.7.2000 informed the 5th respondent that the petitioner was brought in regular service with effect from 1.4.1979 on the scale of pay of Rs.200-5-300 and was also granted annual increments and promotion before he was allowed to retire. It is also stated that the services of one V.Ponnusamy who retired on 31.7.2005 was regularized with effect from 1.4.1979, but the petitioner has not been paid any pensionary benefits for the past eight years. Since the pensionary benefits which are not bounty but legal obligation have not been paid, the petitioner filed W.P.No.11343 of 2009. c) Pending the said writ petition, there was a direction to the https://hcservices.ecourts.gov.in/hcservices/ respondents 2 to 4 to pay provisional pension and based on the letter of the Government dated 22.12.2008, the 5th respondent rejected the payment of provisional pension, expressing its inability to regularize his services from 1.8.1980 on the ground that at the time of appointment of the petitioner, there was a ban on recruitment in and after 1974 and therefore, the appointment of the petitioner was irregular and that order has been challenged in the other writ petition. d) It is the case of the petitioner that the petitioner’s appointment was made in the year 1965 and therefore, he cannot be said to be a fresh appointee in the year 1979 and the ban on recruitment is not applicable. It is also stated that the respondents deducted provident fund contribution from his salary which is meant for permanent employees. It is the case of the petitioner that his services were regularized with effect from 1.4.1979 and he was granted annual increments and promotion and he was allowed to retire on 30.4.2001 and therefore, the retirement benefits ought to have been given to him. 3. In the counter affidavit filed by the third respondent, District Collector, it is stated that as per the service register maintained by the 4th respondent, the Block Development Officer, Acharapakkam, the petitioner was appointed as a Gang Mazdoor Grade-II with effect from 25.10.1965 and his services in the cadre of Gang Mazdoor were regularized with effect from 1.4.1979 and entries were made in the service register also and he was also paid salary and other allowances till his date of retirement and the petitioner was allowed to retire on the date of superannuation viz.,30.4.2001 and the pension proposal was sent to the 5th respondent, the Director of Local Fund and Audit, Chennai by the Panchayat Union, Acharapakkam for sanction of pension and that was returned by the 5th respondent saying that in the approved list of Gang Mazdoor maintained in the Office of the 5th respondent, the name of the petitioner was not found. a) It is stated that the entries made in the service register of the petitioner regarding regularization of service were attested by the Commissioner of Panchayat Union, Acharapakkam instead of the Director of Rural Development and in such circumstances, the proposal was sent to the Government to ratify the action of the Commissioner of the Panchayat Union and to grant pension to the petitioner as a special case. b) It is stated that the Director of Rural Development viz., the second respondent, by letter dated 26.11.2002 recommended the proposal to the Government for regularizing the petitioner’s service with effect from 1.4.1979 as Gang Mazdoor and the Government in the letter dated 22.12.2008, which has also been impugned in the writ petitions, rejected the proposal stating that the services of the petitioner https://hcservices.ecourts.gov.in/hcservices/ cannot be regularized because there was ban on the appointment of Gang Mazdoors with effect from 1.4.1974 and the said rejection order has also been communicated to the petitioner. 4. A reference to the order of appointment of the petitioner dated 25.10.1965 shows that the petitioner was appointed by the Commissioner of Panchayat Union, Acharapakkam, as Grade-II Gang Mazdoor. The purport of the G.O.Ms.No.1661 (Rural Development and Local Administration Department) dated 17.10.1979, is to regularize and bring the Gang Mazdoors working in Panchayat Unions for more than 10 years as on 1.4.1979 into the time scale of pay. From the date of his appointment viz., 25.10.1965, as on 1.4.1979, the petitioner has put in more than 10 years of service and therefore, there is no doubt that the petitioner is entitled for being brought under the time scale of pay. The Commissioner of Panchayat Union in his proceedings dated 4.9.1984 has in fact in categorical terms admitted that the petitioner has been working from 25.10.1965 and as on 1.4.1979, he has completed 10 years of continuous service and ordered time scale of pay as per G.O.Ms.No.1661 dated 17.10.1979 and admittedly, the same has also been entered in the service register of the petitioner. 5. There are proceedings to show that the Commissioner has in fact made such regularization regarding other persons working in the Panchayat Union. In the proceedings dated 30.4.2001, the Commissioner of Panchayat Union also acknowledged that in the provident fund account of the petitioner a sum of Rs.28,030/- is lying. In the further Government Order in G.O.Ms.No.868, Rural Development and Local Administration Department dated 17.6.1983, in continuation of the earlier G.O.Ms.No.1661 dated 17.10.1979, the Government created 1443 posts of Gang Mazdoor in Panchayat Unions in the scale of pay of Rs.200-5-300 with usual allowances in order to bring the persons who have completed 10 years of service as on 1.4.1979 into regular establishment. The resolution of the Panchayat Union as communicated by the Commissioner to the Director of Rural Development dated 12.11.2001 also shows that it was as per the said G.O.Ms.No.1661 dated 17.10.1979, the petitioner was brought under time scale of pay with effect from 1.4.1979 and the pension proposal was also sent. 6. The further proceedings of the District Collector, viz., third respondent dated 23.4.2007 also shows that the only mistake appears to have been committed in the case of the petitioner is that the fact of conferring the benefits of G.O.Ms.No.1661 dated 17.10.1979 on the petitioner in bringing him under the time scale of pay has been endorsed only by the Commissioner of Panchayat Union and not by the Director of Rural Development and therefore, the District Collector in the said proceedings requested for ratification of the action of the Commissioner of Panchayat Union, treating the same as a special case. All these would categorically show that there is absolutely no fault on the part of the petitioner who has been put in service from 1965 https://hcservices.ecourts.gov.in/hcservices/ onwards and admittedly has completed 10 years of service as on 1.4.1979 and therefore, is eligible for the benefits under the said G.O. and in spite of it, the petitioner’s right of being regularized and the pension being granted has been detained only on the ground that the order bringing the petitioner under time scale of pay has not been signed by the Director of Rural Development. The reasons given by the first respondent in the letter dated 22.12.2008 which are as follows: "ghh;itapy; fhQqk; fojj;jpy; fh";rpg[uk; khtl;lk;. mr;rpWghf;fk; Cuhl;rp xd;wpaj;jpy; rhiyg; gzpahsuhf Xa;t[ bgw;w jpU/bry;td; vd;gthpd; gzpapid 1/8/80 Kjy; tud;Kiw bra;af; nfl;Lf; fUj;JU mDg;gg;gl;Ls;sJ/ j';fsJ fUj;JU ed;F Ma;t[ bra;ag;gl;lJ/ murhiz (epiy) vz;/1032 bghJg;gzp Jiw ehs; 26/6/73 murhiz (epiy) vz;/1661 Cuf tsh;r;rp kw;Wk; cs;shl;rpj; Jiw ehs; 17/10/79 26/6/73 murhiz (epiy) vz;/217 Cuf tsh;r;rpj; Jiw ehs; 3/7/92 Mfpa murhizfspd; tiuaiwf;Fs; jdpahhpd; epakdj;ij bfhz;L tu,ayhJ vd;gjhYk;. Nkw;go Mizfspd;go gj;jhz;L bjhlh;e;J bjhFg;g{jpaj;jpy; gzpg[hpe;jpUf;f ntz;Lk; vd epge;jidfs; cs;sjhYk; 1/4/74f;Fg; gpwF rhiyg; gzpahsh; epakdj;jpw;F jilapUe;Jk; 1/8/80 Kjy; Kiwaw;w tifapy; jdpahh; epakdk; bra;ag;gl;Ls;sjhYk; fh";rpg[uk; khtl;lk; mr;rpWghf;fk; Cuhl;rp xd;wpaj;jpy; rhiyg; gzpahsuhfg; gzpg[hpe;J Xa;t[ bgw;W jpU/bry;td; vd;gthpd; gzpapdi 1/8/80 Kjy; tud;Kiw bra;a ,ayhJ vd bjhptpj;Jf; bfhs;sg;gLfpwJ/" are totally misconceived. 7. It is not as if the petitioner was appointed as Gang Mazdoor after 1.4.1974. The Government in the said impugned letter proceeded as if the petitioner was appointed irregularly on 1.8.1980 forgetting the unassailable fact that the petitioner was working as Gang Mazdoor with effect from 25.10.1965. It is astonishing to note that originally the respondents had taken a stand that it is the Commissioner who has brought the petitioner under the time scale of pay and the Director of Rural Development and later, the respondents changed their stand to the effect that the petitioner’s appointment was on 1.8.1980 when there was ban on recruitment. There is absolutely no impediment for the services of the petitioner being regularized with effect from 1.4.1979 since that date of regularization cannot be said to be a fresh appointment at all. Therefore, the impugned letter of the Government dated 22.12.2008 is totally misconceived and it is detrimental to the interest of the petitioner whose service has been extracted by the respondents in all these years till his retirement in the year 2001. 8. The third respondent, who at one point of time had given a proposal that the petitioner’s case must be considered as a special https://hcservices.ecourts.gov.in/hcservices/ case and the action of the Commissioner of Panchayat Union has to be ratified and the petitioner must be paid pensionary benefits, has totally taken a different stand based on the impugned letter of the Government dated 22.12.2008 by saying that the petitioner’s appointment was on 1.8.1980 and the same is irregular. On the facts and circumstances of the present case, I have no hesitation to conclude that the conduct of the respondents in respect of petitioner’s service can never be accepted, especially when in respect of other persons who are similarly situated, their services were regularized as per the said Government Order. 9. In such view of the matter, the impugned orders of the respondents stand set aside and the writ petitions stand allowed with direction to the respondents to compute the pensionary benefits due to the petitioner with effect from the date of his retirement viz. 30.4.2001 by treating the services of the petitioner as regularized and also treating him as having been brought into the time scale of pay from 1.4.1979. It is also made clear that the respondents are directed to pay all arrears of pension and continue to pay pension to him and above such orders shall be passed within a period of 12 weeks from the date of receipt of copy of the order. No costs. Connected miscellaneous petitions are closed. Sd/ Deputy Registrar /true copy/ Sub Asst.Registrar Kh To 1.The Secretary of Government State of Tamil Nadu Rural Development & Panchayat Union Secretariat Fort St.George, Chennai 600 009. 2.The Director of Rural Development Panagal Building Chennai 15. 3.The District Collector Kancheepuram Kancheepuram District. https://hcservices.ecourts.gov.in/hcservices/ 4.The Block Development Officer Panchayat Union, Acharapakkam. 5.The District of Local Fund and Audit Kuralagam, Chennai 1. +1cc to Mr.V.R.Thangavelu, Advocate Sr 88987 +1cc to Govt. Pleader Sr 88795 +1cc to Mr.M.Gnanasekar, Advocate Sr 88532 RSI(CO) km/24.12. W.P.Nos.11343 & 18414 of 2009 https://hcservices.ecourts.gov.in/hcservices/