IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 4.1.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.13286 of 2006 (O.A.No.2467 of 2003) Dr.K.Vasudevan .. Petitioner Vs. 1. The Government of Tamil Nadu rep. by its Secretary Finance Department Fort St.George, Chennai – 9. 2. The Director of Medical Education Directorate of Medical Education Chennai – 10. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Mandamus to direct the respondents to fix the revised pension in the scale of Rs.12000-375-16500 with a direction to pay the pension benefits and also arrears of pension payable from 1.4.1999 till the date of order. For Petitioner : Mr.K.Mani For Respondents: Mr.N.Senthil Kumar Addl. Government Pleader ORDER The writ petition has been transferred from the Tamil Nadu Administrative Tribunal, Madras in O.A.No.2467 of 2003 and the same has been filed by the petitioner for a direction against the respondents to revise the pension in the scale of Rs.12,000-375- 16,500/- and to direct the payment of the same with arrears from 1.4.1999. 2.1. The petitioner, who was a former Professor of Surgery and Head of Department in the Kilpauk Medical College under the Directorate of Medical Education and holding the post for 17 years, has retired on 31.5.1986. He was initially paid a pension of Rs.1,305/-. As on 21.6.2000, as per the entry in the pension book of the petitioner, the petitioner's pension was fixed at Rs 5,683/-, along with dearness allowance of Rs 2,331/- and medical allowance of Rs 50/- to a total amount of Rs 8,064/-. https://hcservices.ecourts.gov.in/hcservices/ 2.2. It is stated that the Dean of the Kilpauk Medical College, based on G.O.Ms.No.200, Finance (Pay Cell) Department, dated 18.5.1999, has calculated the revised pension incorrectly on the basis of the time scale of Rs 10,000-325-15,200/- instead of fixation of revised pension in the time scale of Rs 12,000-375- 16,500/- eligible for the retired Professors. As per the annexure to the government order in G.O.Ms.No.67, Health and Family Welfare Department, dated 12.2.1999, the scale of Professors was fixed at Rs 12,000-375-16,500/-. 2.3. After G.O.Ms.No.200, Finance (Pay Cell) Department, dated 18.5.1999 has come into existence, the petitioner has made a representation to the second respondent on 22.7.2002 stating that the post of Senior Professor at the time of his retirement was equivalent to the post of Senior Civil Surgeon with effect from 1999 and therefore, the pension should be fixed with Rs 12,000/- as the basic salary in the time scale of Rs 12,000-375-16,500/-. It is stated that even though the Director of Medical Services has recommended the case of the petitioner, the second respondent without following the same has informed that as on 1.1.1996 the basic pay of the petitioner was Rs 10,000/- taking into account the level of the post in 1986. According to the petitioner, such interpretation in respect of the two government orders by taking the year as 1986 is not valid and it is opposed to G.O.Ms.No.200, Finance (Pay Cell) Department, dated 18.5.1999. In these circumstances, the petitioner has filed the original application before the Tribunal, which was subsequently transferred to this Court. 3. In spite of many chances given to the respondents, the respondents have not chosen to file counter affidavit, even though the learned Additional Government Pleader has made his representation contending that the level of the post has to be taken into consideration as per G.O.Ms.No.200, Finance (Pay Cell) Department, dated 18.5.1999 in the year 1986 and if that is taken into account, the time scale of pay which was earned by the petitioner at that time was only Rs 10,000/- and therefore, according to him, the second respondent's communication dated 11.10.2002 holding that the revised pension sanctioned based on the scale of pay of Rs 10,000-325-15,200/- is correct cannot be said to be either illegal or against the said government order. 4. On the other hand, Mr.K.Mani, learned counsel appearing for the petitioner would submit that on a reading of G.O.Ms.No.200, Finance (Pay Cell) Department, dated 18.5.1999, it is clear that the petitioner's pay has to be fixed at Rs 12,000/-, since the post of Senior Professor he was holding was equivalent to that of the Senior Civil Surgeon and therefore, the reasoning of the second respondent, as it is found in the communication dated 11.10.2002 holding that https://hcservices.ecourts.gov.in/hcservices/ the revised pension sanctioned based on the scale of pay of Rs 10,000-325-15,200/- is correct, is basically opposed to the government order. 5. On record it is admitted that the monthly pension that was initially fixed to the petitioner, who has retired from service as a Professor of Surgery on 31.5.1986, was Rs 1,305/-. Under the government order in G.O.Ms.No.684, Health and Family Welfare Department, dated 18.12.1998, in order to take measures to improve health care services in the State and with an idea of strengthening the health administration at various levels, the Government has evolved a broad guideline creating three categories of posts during 1991, viz., Senior Civil Surgeon, Civil Surgeon and Senior Assistant Surgeon. 6. There was a partial modification of the above said government order issued by the government in G.O.Ms.No.67, Health and Family Welfare Department, dated 12.2.1999, by which the Government while sanctioning the upgradation of Civil Surgeons as Senior Civil Surgeons, has fixed the ceiling limit of 2000 posts. In the said government order, the government has identified the distribution of staff in Annexures I, II and III, out of which Annexure-I relates to the distribution for the post of Senior Civil Surgeons in the scale of pay of Rs 12,000-375-16,500/- by identifying various posts. While identifying 2000 posts as per the modified government order, the government in Annexure-I has identified 689 posts of Readers, Senior Readers, Professors, Additional Professors, including Deputy Directors, etc., under the control of the Director of Medical Education, as equivalent to the post of Senior Civil Surgeon in the scale of pay of Rs 12,000-375- 16,500/-. 7. The government has fixed revised pension to the persons who have retired before the year 1996 based on the recommendation of an Official Committee giving effect from 1.1.1996. That was based on the orders of the Government of India revising pension/family pension of those who retired prior to 1.1.1996 and also various representations made by the Pensioners' Association to confer the pensionary benefits on par with the pensioners of the Central Government. Accordingly, the government has passed G.O.Ms.No.200, Finance (Pay Cell) Department, dated 18.5.1999 directing that in case of employees who have retired from service prior to 1.1.1996, the revised pension shall be calculated at 50% of the minimum of the revised time scale of pay introduced with effect from 1.1.1996 applicable to the post last held by the employee at the time of his or her retirement. 8. It is seen that admittedly the revised time scale of pay of the petitioner as on 1.1.1996 was Rs 10,000-325-15,200/-. However, it is the claim of the petitioner that he was the senior-most https://hcservices.ecourts.gov.in/hcservices/ Professor of Surgery in Kilpauk Medical College, having retired on 31.5.1986, and that only because his scale of pay was Rs 10,000-325- 15,200/- on 1.1.1996, his pension was fixed based on that, while for the persons who are juniors to the petitioner and who have put in less number of years of service, viz., in cases where the juniors to the petitioner who have only served 25 years, while the petitioner has served 32½ years as on 31.5.1986, their scale has been fixed at Rs 12,000-375-16,500/- as per the modified government order issued in G.O.Ms.No.67, Health and Family Welfare Department, dated 12.2.1999 because they have retired after 1.1.1996, and therefore, according to him, it is an anomaly. 9. On the face of it, such stand taken by the petitioner is misconceived. As per the modified G.O.Ms.No.67, Health and Family Welfare Department, dated 12.2.1999, it was from that day only the posts of Readers, Senior Readers, Professors, Additional Professors, including Deputy Directors, etc., under the control of the Director of Medical Education, were equated to the cadre of Senior Civil Surgeon in the scale of pay of Rs 12,000-375-16,500/-. In the absence of an indication in the said government order stating that the said distribution of the post is to be deemed to be effective retrospectively even before 1.1.1996, it has to be necessarily construed that the distribution of the post is effective prospectively only from the date of the government order, viz., 12.2.1999. Needless to state that the correlation of the post of Professors, etc. identifying the same with that of the Senior Civil Surgeon in the scale of pay of Rs 12,000-375-16,500/- has come into effect from the date of the said government order, viz., 12.2.1999. On the other hand, as on 1.1.1996, when revision of pension was made to the employees who retired before 1996, the pay scale of the petitioner was only at Rs 10,000-325-15,200/-, even though he would have retired as senior-most Professor of Surgery on 31.5.1986. 10. Whether such benefit should be given in respect of the revision of pension on the basis of the revised pay scale retrospectively is not for this Court, but ultimately for the government to decide. Till such a decision has been made by the government, as communicated by the second respondent in the letter dated 11.10.2002 to the effect that the benefit of G.O.Ms.No.200, Finance (Pay Cell) Department, dated 18.5.1999 can be given only to the persons who retired after 1999 and the quantum of pension to be fixed for the persons who retired prior to 1.1.1996 is as per the then existing pay scale of the post held by the petitioner, which was admittedly Rs 10,000-325-15,200/-, the same cannot be said to be either incorrect or perverse. 11. There is no anomalous situation in my considered view on the facts and circumstances of the present case. In the said letter dated 11.10.2002, the second respondent has in fact referred to the government letter dated 23.6.2000 in that regard to come to such a https://hcservices.ecourts.gov.in/hcservices/ conclusion. Admittedly, the petitioner has not chosen to challenge the said communication of the second respondent dated 11.10.2002 and also the government letter No.48231/Fin(PC)/2000, Finance (PC) Department, dated 23.6.2000. In such circumstances, the writ petition filed for a direction to fix his pay at Rs 12,000-375- 16,500/- by deeming as if the benefit of G.O.Ms.No.67, Health and Family Welfare Department, dated 12.2.1999 should be conferred retrospectively with effect from 1.1.1996 is not acceptable. For the aforesaid reasons, the petitioner is not entitled to any relief claimed in this writ petition. The writ petition fails and the same is dismissed. It is made clear that in the event of the government clarifying the said position by giving the benefit of G.O.Ms.No.67, Health and Family Welfare Department, dated 12.2.1999 even for the persons who have retired before 1.1.1996, this order shall not stand in the way of conferring such benefit of revised pension to the petitioner. No costs. sasi Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To: 1. The Secretary Finance Department Government of Tamil Nadu Fort St.George, Chennai – 9. 2. The Director of Medical Education Directorate of Medical Education Chennai – 10. VSN(CO) SR/25.1.2011 W.P.No.13286 of 2006 (O.A.No.2467 of 2003) https://hcservices.ecourts.gov.in/hcservices/