IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 2.2.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.15253 of 2008 T.Gopichandar .. Petitioner Vs. 1. The Secretary to Government Transport Department Secretariat, Chennai – 600 009. 2. The Managing Director Tamil Nadu State Transport Corporation (Villupuram) Ltd., Kancheepuram Region Villupuram – 605 602. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorarified Mandamus to call for the records of the second respondent relating to Lr.No.3061/P1/TNSTC (VPM)/KPM/08, dated 10.4.2008, to quash it as arbitrary and illegal and to consequently direct the respondents to take the petitioner's service for the period from 13.8.1971 to 30.4.1977 added with service in the Transport Corporation from 1.5.1977 to 31.3.1982 as per the order of the Supreme Court dated 29.10.2003 in Civil Appeal Nos.1444 to 1445 with 1446 to 1452 read with G.O.Ms.No.550, Public Works (C2) Department, dated 31.3.1993 and G.O.Ms.No.893, Public Works (HM2) Department, dated 22.8.1994 and to pass necessary orders for sanction and payment of arrears of pension from 1.1.1988. For Petitioner : Mr.C.Manohar For Respondents : Mr.N.Senthil Kumar Additional Govt. Pleader for 1st respondent Mr.T.Chandrasekaran Special Govt. Pleader for 2nd respondent ORDER The writ petition is directed against the order of the second https://hcservices.ecourts.gov.in/hcservices/ respondent dated 10.4.2008, by which the claim of the petitioner for the purpose of modification of appointment order issued earlier and settlement of terminal benefits came to be rejected. 2.1. The petitioner was appointed as a Work Assistant under the work charged establishment in the erstwhile Tamil Nadu State Transport Department on a monthly pay of Rs.90/- plus usual allowances from 13.8.1971. The Pallavan Transport Corporation was created and it started functioning from 1.1.1972. The Pallavan Transport Corporation started its operation of stage carriages as a public sector undertaking owned and controlled by the government and therefore, the employees of the transport department, who were on roll as on 31.12.1971, were allowed to continue to work as government employees on deputation. 2.2. After the formation of the service rules for the employees of the Transport Corporation, the government issued G.O.Ms.No.378, Finance (FR.II) Department, dated 18.4.1975 calling for options from the employees like the petitioner, who were on deputation, for absorption in the Transport Corporation on and from 1.5.1975. It is the case of the petitioner that as per the government order when such option is given, the optee will be entitled to pension and gratuity earned by him in the government service prior to the absorption, permitting the employee to draw the pension immediately on absorption with the Transport Corporation. 2.3. It is stated that almost all the government employees opted to become the employees of the Transport Corporation, however the petitioner was not called for exercising his option and he has not given any option, but yet he was allowed to continue in his job in the Transport Corporation even after 1.5.1975 and the petitioner was allotted work in the Vyasarpadi Depot and there was no change in the service condition of the petitioner even after 1.5.1975. 2.4. After the Transport Corporation decided to take in its Civil Division the Work Assistants, the petitioner's name was shown as Work Assistant from 3.12.1977, indicating the date of appointment as 13.8.1971. According to the petitioner, he was absorbed as per the Board's resolution dated 3.12.1977, with effect from 1.5.1977 in the scale of pay of Rs.160-5-225. Therefore, according to him, his function as a Work Assistant from 13.8.1971 to 30.4.1977 is in the status of government employee and his service in the Transport Corporation starts from 1.5.1977 in the post created with the time scale. 2.5. The benefit given under G.O.Ms.No.378, Finance (FR.II) Department, dated 18.4.1975, with cut-off date as 1.5.1975, was challenged in this Court and it was held that the cut-off date fixed as 1.5.1975 is invalid and the matter was taken to the Supreme Court and the Supreme Court on 29.10.2003 in batch of cases has held that the https://hcservices.ecourts.gov.in/hcservices/ cut-off date fixed as 1.5.1975 is illegal and it should be taken as 1.4.1982 and thereby directed the government to add the requisite length of service in the Transport Corporation up to 31.3.1982, so as to make the employees eligible for pension and further directed the government to pay arrears of pension only from 1.1.1988. 2.6. The government, in compliance of the direction of the Supreme Court, issued G.O.Ms.No.42, Transport (R.W.) Department, dated 27.5.2005. According to the petitioner, his service in the Transport Department from 13.8.1971 and thereafter in the Transport Corporation up to 31.3.1982 put together works out to 10 years 7 months and 18 days and therefore, he is eligible for pension payable by the government from 1.1.1988, as per the government order passed based on the judgment of the Supreme Court. 2.7. Since the claim of the petitioner was not considered, he filed W.P.No.3061 of 2008 for a direction to the respondents to consider the representation dated 25.10.2007 to sanction pension as per the judgment of the Supreme Court. This Court, by order dated 18.2.2008, has directed the respondents to consider the representation of the petitioner in accordance with the decision of the Supreme Court. It was pursuant to the order passed by this Court, the second respondent has passed the impugned order and the same is challenged on various grounds, including that his service as a Work Assistant from 1.5.1977 on time scale of pay in the Transport Corporation does not mean that the petitioner was appointed for the first time as Work Assistant on 1.5.1977, especially when he has joined in the erstwhile Transport Department on 13.8.1971; that non availability of entries prior to 1.5.1977 is not the fault on the part of the petitioner, particularly when he was working as Work Assistant from 13.8.1971 under the erstwhile Transport Department. 3.1. In the counter affidavit filed by the second respondent/ Transport Corporation, it is stated that as per the records, the petitioner's appointment into monthly cadre was as per the resolution of the Board dated 3.12.1977 and thereafter, he was re-designated as Work Assistant in the the time scale of pay of Rs.160-5-225 with effect from 1.5.1977. 3.2. It is stated that meanwhile, the Supreme Court has modified the cut-off date from 1.5.1975 to 1.4.1982 and directed the Government to add requisite length of service, so as to make the employees eligible for pension as per the rules, but the Supreme Court has held that temporary posts could not be regularised and therefore, it was based on the service entries available, the petitioner's representation was disposed and according to the entries, the petitioner's appointment was only as a fresh entrant from 1.5.1977 and prior to that there cannot be any claim of the petitioner for qualifying service and hence, the claim for the period from 13.8.1971 to 30.4.1977 does not arise. https://hcservices.ecourts.gov.in/hcservices/ 4. In the Board's resolution No.494(D) 1977, dated 3.12.1977 categorising the work charged establishment personnel, the second respondent himself has indicated the name of the petitioner as Work Assistant from the date of his appointment as 13.8.1971 with qualification as X Standard and ITI Certificate holder. 5. It is no doubt true that in the Transport Corporation the post of Work Assistant was created as per the proceedings of the Corporation dated 15.3.1978 and the petitioner was brought as a Work Assistant with effect from 1.5.1977. But, it does not mean that the petitioner loses his service from his original date of appointment on 13.8.1971, viz., the date on which he was eligible to be Work Assistant with necessary qualification. Therefore, the contention raised as if, as per the records of the second respondent/Corporation, the petitioner is deemed to have joined only from 1.5.1977, is unfounded. Creation of the posts as per the Board Resolution as a Work Assistant on 15.3.1978 and giving effect to the same from 1.5.1977, does not take away the services of the petitioner, which he has rendered earlier. 6. In fact, the government has itself stated in G.O.Ms.No.550, Public Works (C2) Department, dated 31.3.1993, by referring to a judgment of the Tamil Nadu State Administrative Tribunal, that the non- provincialised period of service must also be taken into consideration for the purpose of pension under work charged establishment and that has been reiterated by the Government in G.O.Ms.No.893, Public Works (HM.2) Department, dated 22.8.1994. 7. The Supreme Court, while considering about the cut-off date for pension, in Government of Tamil Nadu and others v. M.Ananchu Asari and others, 2003 AIR SCW 5479, has held that for the purpose of fixing the pension, fixation of 1.5.1975 as cut-off date is arbitrary and ultimately directed that the fixation of cut-off date as 1.4.1982 would be appropriate for the purpose of pension. 8. By applying the cut-off date fixed by the Supreme Court as 1.4.1982 to the facts of the present case and taking note of the fact that the petitioner has been working as Work Assistant in the Transport Corporation from the date of its inception, viz., from 4.4.1972, for which he was well qualified, certainly the petitioner having completed ten years of service is entitled to pension. When the judgement of the Supreme Court has been incorporated by G.O.Ms.No.42, Transport (R.W.) Department, dated 27.5.2005, it is not open to the second respondent to decide as if the petitioner's first appointment is from 1.5.1977. Therefore, in my considered opinion, the decision of the second respondent is not in conformity with the government order and the judgement of the Supreme Court. For the aforesaid reasons, this writ petition is allowed and the https://hcservices.ecourts.gov.in/hcservices/ impugned order of the second respondent is set aside with a direction to the second respondent to reconsider the case of the petitioner and pass appropriate orders in respect of the grant of pension by taking note of the fact that the petitioner's service in any event would commence from 4.4.1972 while his original appointment as Work Assistant in the erstwhile Transport Department was on 13.8.1971. Such order shall be passed by the second respondent within a period of eight weeks from the date of receipt of a copy of this order. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sasi To: 1. The Secretary to Government Transport Department Secretariat, Chennai – 600 009. 2. The Managing Director Tamil Nadu State Transport Corporation (Villupuram) Ltd., Kancheepuram Region Villupuram – 605 602 +1cc to Mr.C.Manohar, Advocate Sr 7477 MDR(CO) km/15.2. W.P.No.15253 of 2008 https://hcservices.ecourts.gov.in/hcservices/