IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.08.2010 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No.14470 of 2009 & M.P.Nos.1 and 2 of 2010 M.Subramaniyan ... Petitioner Versus 1. The Secretary to Government of Tamil Nadu, High Ways Department, Fort St.George, Chennai -9. 2. The Chief Engineer, Highways and Rural Works Department, Cheapuk, Chennai – 5. 3. The Superintending Engineer, Highways and Rural Works Department, Thiruchirapalli – 600 020. 4. The Divisional Engineer, Highways and Rural Works Department, Thiruvarur, Thiruvarur District. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Mandamus, directing the respondents to sanction and disburse of all the retirement benefits namely, gratuity, provident fund, pension etc., for the service rendered as Gang Mazdoor and Road Inspector and on attaining the age of superannuation on 30.09.2008 within a reasonable time framed by this Honourable Court. For Petitioner : Mr.K.Venkataramani Senior Counsel for Mr. Kasinatha Bharathi For Respondents: Mrs.Lita Srinivasan Government Advocate https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner was appointed as a Gang Mazdoor in Highways Department on 15.11.1969 in Nagapattinam Division of erst while composite Thiruvarur District. He was brought to regular establishment from 01.01.1977. Thereafter, he was promoted as Road Inspector by the Superintending Engineer in his proceeding dated 07.09.1980. 2. The petitioner served as Road Inspector from 19.09.1980 to 09.06.1986. He was reverted by the order of the Superintending Engineer,Trichy in his proceeding dated 24.04.1986 from the post of Road Inspector to Gang Mazdoor with effect from 10.06.1986. He was not successful in challenging the reversion order. After his reversion, he did not attend the duties. He reported sick and applied for medical leave with effect from 10.06.1986 onwards. The Assistant Divisional Engineer, Thiruthurai Poondi directed the petitioner to appear before the Medical Board on 06.12.1986. Accordingly, he appeared before the Medical Board. The Medical Board recommended medical leave for the period from 10.06.1986 to 08.12.1986. Since he was not well he applied for extension of leave without pay subsequently. After recovery from illness, he applied in 1991 for posting order. According to the petitioner, he made repeated requests for posting order. 3. The petitioner approached the Tamil Nadu Administrative Tribunal by filing an Original Application in O.A.No.2961 of 1997, seeking posting order. The Tribunal passed an order dated 28.04.1997 in O.A.No.2961 of 1997 directing the respondents to dispose the representation of the petitioner, dated 17.04.1997, within a period of 10 weeks. 4. Since no order was passed pursuant to the order of the Tribunal, the petitioner also gave another representation on 10.04.2004 with the same request. The petitioner also filed a writ petition in W.P.No.2382 of 2006 before this Court. This Court on 14.07.2007, directed the respondent to consider the representation of the petitioner, dated 10.04.2004, within a period of six weeks from the date of receipt of a copy of the order. 5. Here again, no order is passed. The petitioner filed Contempt petition in Cont.P.No.307 of 2008 before this Court. During pendency of the Contempt Petition, the Chief Engineer (General) Highways Department issued an order dated 03.04.2008 stating that the petitioner was directed to attend Divisional Office through a communication dated 22.05.2002 and he failed to attend the office, as the letter was returned with an endorsement "left India". In these circumstances, the contempt petition was closed. https://hcservices.ecourts.gov.in/hcservices/ 6. According to the petitioner, he reached the age of superannuation on 30.09.2008 and he rendered service from 15.11.1969 for 17 years. Hence, he is entitled to pension. 7. Since, he is not paid pension, he filed the present writ petition seeking for a direction to disburse all the retirement benefits namely, gratuity, provident fund, pension etc., for the service rendered as Gang Mazdoor and Road Inspector, on attaining the age of superannuation on 30.09.2008. 8. Notice of motion was ordered on 28.07.2009. 9. The respondents have filed counter affidavit. 10. Heard Mr.K.Venkataramani, learned senior counsel for the petitioner and Mrs.Lita Srinivasan, learned Government Advocate for the respondents. 11. The learned Government Advocate has also produced the written instructions dated 05.08.2010. 12. It is not in dispute that the petitioner was employed from 15.11.1969 to 10.06.1986. Thereafter, he was reverted. After reversion, he did not join the lower post. He was not successful in challenging the reversion. 13. According to the petitioner, he sought posting at a later point of time and the same was not given. But, according to the respondents, they issued a communication, dated 22.05.2002 offering posting and he did not join duty. 14. It is not in dispute as contended by the learned counsel for the petitioner, that no order was passed under Rule 56 (1)(C) of the Fundamental Rules, suspending and retaining the petitioner in service. It is also not in dispute that no disciplinary action is initiated till date regarding the alleged absence. It is also not in dispute that the petitioner reached the age of superannuation on 30.09.2008. 15. The written instructions dated 05.08.2010 has produced by the learned Government Advocate is as follows:- "As per existing Government rules pension can be sanctioned. (i) to those Government servant who permitted to retire from Government Service on attaining the age of superannuation. https://hcservices.ecourts.gov.in/hcservices/ (ii) to those Government servant who permitted to retire voluntarily on fulfilling certain criteria. (iii) to those Government servant who have been medically invalidated on medical grounds. The petitioner Thiru.M.Subramanian could not be classified under any one of the above said categories. He was on unauthorized absent from 01.07.1987. As such being the factual position, the petitioner's request for pension and other benefits could not be complied with. Since it has to be construed that as deemed dismissal at the distance of time." According to the written instructions, due to the long absence, the petitioner is deemed to have been dismissed from service. This is the crux of the submissions made by the learned Government Advocate. 16. In my view, there is no deemed dismissal provided in the Service Rules. The respondents have not cited any Rule framed under 309 of the Constitution of India in this regard. Hence, the written instructions dated 05.08.2010 stating deemed dismissal has to be rejected. 17. In these circumstances, the respondents are directed to pass orders on the representation of the petitioner dated *10.07.2009 claiming pension and other terminal benefits within a period of six weeks from the date of receipt of a copy of this order. 18. The writ petition is disposed of with the above direction. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Asst.Registrar. 12.8.2010 *Amended as per the order of this Court dated 19.8.2010 and made in WP.14470/09 Sd/- Asst Registrar 23.8.2010 /true copy/ Sub Asst.Registrar. r n s https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary to Government of Tamil Nadu, High Ways Department, Fort St.George, Chennai -9. 2. The Chief Engineer, Highways and Rural Works Department, To be substituted Cheapuk, Chennai – 5. to the order already despatched 3. The Superintending Engineer, on 12.8.2010 Highways and Rural Works Department, Thiruchirapalli – 600 020. 4. The Divisional Engineer, Highways and Rural Works Department, Thiruvarur, Thiruvarur District. 1 cc to the Government Pleader, Sr. 58324 1 cc to Mr.V. Kasinatha Bharathi, Advocate, Sr.61493 W.P.No.14470 of 2009 SGL (CO) kk 12/8 SR/23.8.2010 https://hcservices.ecourts.gov.in/hcservices/