1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15.12.2011 CORAM: THE HONOURABLE MR.JUSTICE T.RAJA W.P.(MD)No.13379 of 2011 D.S.Suthanthiraraj @ Suthanthirarajan ... Petitioner Vs. 1. The State of Tamil Nadu represented by the Secretary to Government, Transport Department, Fort St. George, Chennai-9. 2. The Managing Director, Tamil Nadu State Transport Corporation, Bye-pass Road, Palanganatham, Madurai. 3. The Manager, Tamil Nadu State Transport Corporation, Bye-pass Road, Palanganatham, Madurai. 4. The Administrator, Tamil Nadu State Transport Corporation Employees Pension Trust, O/o. SETC Head Office, Thiruvalluvar House, Chennai-600 002. R4 impleaded as party respondent under vide order dated 15.12.2011 in M.P.(MD).No.1 of 2011. ... Respondents Prayer: Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records relating to the impugned order passed by the second respondent in Ref:TNSTC/MDU/PF8/WP 3873/2011 dated 01.06.2011 and quash the same as illegal and consequently direct the respondents to provide monthly pension benefits to the petitioner from the date of his voluntary retirement that is on 01.10.2001 with arrears and interest. For Petitioner : Mr.C.M.Arumugam For Respondents : Mr.T.R.Janarthanan Additional Government Pleader https://hcservices.ecourts.gov.in/hcservices/ 2 O R D E R The petitioner, who was appointed as a Conductor temporarily in the respondent Corporation on 01.12.1979 with the consolidated monthly salary of Rs.220/-, got voluntary retirement on completion of a period of 22 years of service. The second respondent, the Managing Director, Tamil Nadu State Transport Corporation, Palanganatham, Madurai, has also issued a certificate for the successful completion of 22 years of service. As he was under the impression that the petitioner has rendered 22 years of service in the respondent Corporation and he would be entitled to get the benefit of pension for the reason that he has completed 20 years of service, he has sent a proposal for voluntary retirement. Accepting the said request of the petitioner, he was also permitted to retire voluntarily. After taking voluntary retirement, the petitioner approached the second and third respondents to get the pensionary benefits. The second respondent in his communication dated 14.02.2003, has informed the petitioner that in view of Rule 16(9)(2) of the Tamil Nadu Transport Corporation Employees Pension Rule, he is not eligible to get pension as he has not completed 20 years of service. In the said communication, it has been mentioned that the qualifying service rendered by the petitioner has been calculated as 19 years 10 months and 25 days. Subsequently thereafter, the petitioner has submitted his representation on 15.03.2010, requesting the second respondent to consider the case of the petitioner as he has rendered 21 years 5 months and 30 days with the further request to reconsider the rejection order. But his representation was not considered by the respondents 2 and 3. Therefore, the petitioner has come to this Court by filing the present Writ Petition challenging the communication dated 01.06.2011. 2. It is the admitted case of the petitioner that the petitioner submitted his request for seeking voluntary retirement before the second respondent by producing a certificate issued by the second respondent that he has completed 22 years of service with the respondent Corporation. The second respondent before allowing the petitioner to retire from service, should have properly scrutinised the papers as to whether the petitioner has completed 20 years of service, so as to extend the benefit of pension. In the process of scrunising the paper, if the second respondent is of the opinion that the petitioner has not completed 20 years of service, he should have informed the petitioner and the petitioner also could have completed the rest of the period, so as to qualify himself to get the benefit of pension. After accepting the proposal made by the petitioner to go on voluntary retirement on the ground that the petitioner has completed 22 years of service, it is not open for the respondents to deny the benefit of pension. In support of his submission, the learned counsel for the petitioner has also relied upon a G.O.Ms.No.24 issued by the Finance (Pension) Department, dated 13.01.1986 to state that the Government also has decided to extend the benefits as ordered by the Government of India to the State Government Employees in calculating the length of qualifying service https://hcservices.ecourts.gov.in/hcservices/ 3 for the purpose of pension and as a result, a fraction of the year equal to three months and above shall be treated as a completed one half year. On that basis, even if they applied the G.O.Ms.No.24 dated 13.01.1986, since the petitioner has rendered 21 years 5 months and 30 days, the petitioner is entitled to get the benefit of pension. He has also relied upon a decision in the case of P.Perumal vs. Government of Tamil Nadu reported in (2010) 7 MLJ 62, wherein this Court held that 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. On that basis, he prayed for setting aside the impugned order by allowing the present Writ Petition with the consequential direction to the respondents to provide monthly pensionary benefits to the petitioner from the date of his voluntary retirement i.e. on 01.10.2001 with arrears and interest. 3. Heard the parties on both sides. 4. Admittedly, the petitioner having rendered 22 years of service in the respondent Corporation, has submitted his proposal to voluntary retirement in view of his health condition. Even before submitting the application, the second respondent has also issued a certificate wherein it has been mentioned that the petitioner has completed 22 years of service. This has given an impression to the petitioner that he has completed 22 years of service. Only on that basis, the petitioner has submitted his request for seeking voluntary retirement. The second respondent has also accepted the request of the petitioner and relieved him to go on voluntary retirement. 5. Mr.T.R.Janarthanan, learned Additional Government Pleader would submit that in view of Rule 13(c) r/w. 16(a)(ii) of TNSTC EPFT Rules, though the total service of the petitioner is taken into account as 21 years 5 months and 30 days, one year 7 months and 5 days are to be deducted as non-qualifying service. After deduction, the qualifying service comes to 19 years 10 months and 25 days. Therefore, the case of the petitioner cannot be considered as he has not rendered the qualifying service of 20 years or more. The second respondent issued a successful completion certificate indicating that the petitioner has completed 22 years of service and he has also accepted the petitioner's proposal to go on voluntary retirement, on the basis of the successful completion certificate issued by the second respondent and thereafter, he was also relieved from service. Subsequently, when the petitioner approached the second and third respondents to get the pension benefits by furnishing the necessary documents, the second respondent in his communication dated 14.02.2003, informed the petitioner that he has not completed the qualifying service viz., 20 years for the purpose of getting the monthly pension. The reasoning shown in the communication dated 14.02.2003 that the petitioner has failed to complete 20 years of qualifying service for getting pension cannot be accepted, in view of the G.O.Ms.No.24 Finance (Pension) Department, dated 13.01.1986. Paragraph No.2 of the G.O.Ms.No.24 is extracted as under: https://hcservices.ecourts.gov.in/hcservices/ 4 "2) The Government after careful consideration have decided to extend the benefits ordered by the Government of India to the State Government Employees also and accordingly direct that in calculating the length of qualifying service for purposes of pension, a fraction of a year equal to 3 months and above shall be treated as a completed one half year and reckoned as qualifying service for determining the amount of pension." 6. A mere reading of the above said G.O.Ms.No.24 dated 13.01.1986 goes to show that for the purpose of pension a fraction of the year equal to three months and above shall be treated as a completed one half year. By applying the G.O.Ms.No.24, if I look at the case of the petitioner, as admitted by the second respondent the petitioner has rendered 21 years 5 months and 30 days, out of these years, if the non qualifying service viz., one year 7 months and 5 days are deducted, no doubt, that the qualifying service comes to 19 years 10 months and 25 days. Therefore, if Rule 13(a)(ii) of Tamil Nadu State Transport Corporation Employees Pension Fund Rules, r/w. 16(a)(ii) of TNSTC EPFT Rules is applied, 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. That being the Rule, as I mentioned earlier, the petitioner having put in service of 19 years 10 months and 25 days by extending the benefits of rounding off, the same should be given as 20 years of service. Under similar circumstances, I have also dealt with similar matter, while considering an identical issue in the case of P.Perumal vs. Government of Tamil Nadu reported in (2010) 7 MLJ 62, wherein I have held as follows: "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 settled legal as well as the rule position, I am of the https://hcservices.ecourts.gov.in/hcservices/ 5 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. 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." 7. In view of the earlier decision, I have no hesitation to hold that the petitioner is entitled to get the benefit of Rule 13(a)(ii) of Tamil Nadu State Transport Corporation Employees Pension Fund Rules for the purpose of rounding off the deficit days to the nearest year. Accordingly, the impugned order refusing to provide the benefit of pension is set aside and the Writ Petition is therefore allowed by directing the respondents to grant monthly pension to the petitioner from the date of his voluntary retirement. This exercise shall be done within a period of two weeks from the date of receipt of a copy of this order. No costs. Sd/- Assistant Registrar (A.E) /True Copy/ Sub Assistant Registrar To 1. The Secretary to Government, Transport Department, Fort St. George, Chennai-9. 2. The Managing Director, Tamil Nadu State Transport Corporation, Bye-pass Road, Palanganatham, Madurai. 3. The Manager, Tamil Nadu State Transport Corporation, Bye-pass Road, Palanganatham, Madurai. 4. The Administrator, Tamil Nadu State Transport Corporation Employees Pension Trust, O/o. SETC Head Office, Thiruvalluvar House, Chennai-600 002. +1 CC to Special Government Pleader (SR.No.44044) +1 CC to Mr.C.M.Arumugam, Advocate (SR.No.44029) W.P.(MD)No.13379 of 2011 15.12.2011 akv NSV/9.1.12/5P/7C https://hcservices.ecourts.gov.in/hcservices/