Madras High Court

R.Pandiayarajan vs The State Of Tamil Nadu on 26 July, 2018

Author:
R.Suresh Kumar

Bench:
R.Suresh Kumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 26.07.2018

CORAM:

THE HONOURABLE MR.JUSTICE R.SURESH KUMAR

W.P.(MD)Nos.16455 to 16461 and 16433 of 2018

W.P.(MD)No.16455 of 2018:-

R.Pandiayarajan ...Petitioner

-Vs-

1.The State of Tamil Nadu,
Represented by Principal Secretary to Government,
School Education Department,
Fort St.George, Chennai-600 009.

2.The Director of School Education,
DPI Complex, College Road,
Chennai-600 006.

3.The Joint Director of School Education (Vocational),
O/o. the Director of School Education,
DPI Complex, College Road,
Chennai-600 006.

4.The Chief Educational Officer,
O/o. Chief Educational Officer,
Theni District, Theni.

5.The Accountant General,
O/o the Accountant General (A & E),
Teynampet, Chennai- 600 018. ..Respondents
PRAYER: Writ Petition is filed under
Article 226
of the Constitution of India

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praying for the issuance of a Writ of Mandamus, to calculate the 50%
of service rendered by the petitioner as Part-time Vocational Instructor
drawing consolidated pay along with regular service for arriving net
qualifying service for calculation pension and to grant all monetary and
other attendant benefits and arrears within a stipulated time may be fixed
by this Court.
For Petitioner : Mr.M.Saravanakumar
For Respondents : Mr.K.Saravanan (for R1 to R4)
Government Advocate
Mr.P.Gunaseelan Muthiah (for R5)

COMMON ORDER

In all these batch of cases, the respective petitioners are either

working as Teachers, ie., Vocational Instructors or have retired from service

in that capacity.

2. In W.P.(MD) Nos.16455, 16456 and 16458 of 2018 the

petitioners are still working as Vocational Instructors. In W.P.(MD) Nos.

16457, 16459 to 16461 and 16433 of 2018, the respective petitioners have

retired from service.

3. Since their services have been brought to time scale of pay

after some years only from that date, their services have been calculated

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for the purpose of pensionary benefits. Their grievance appears to be in

spite of the amendment having been brought under Rule 11(4) of the Tamil

Nadu Pension Rules, the past services rendered by them, as either single

time or part time Vocational Instructors had not been taken into account for

the purpose of pensionary benefits.

4. The learned counsel for the petitioners would submit that the

issue raised in these batch of cases have already been decided by a number

of decisions of this Court and in this regard, the learned counsel for the

petitioners have also relied upon a recent judgment of Mine dated

09.07.2018 in W.P.(MD) No.14365/2014 etc batch, in the matter of

A.Ramalingam v. State of Tamil Nadu
and three others.

5. I have heard the learned counsel for the respective petitioners

and also the learned Special Government Pleader, Government Advocate for

the official respondents and learned standing counsel for the Accountant

General and I have also gone through the materials placed before this

Court.

6. As has been rightly pointed out by the learned counsel for the

parties, the issue raised in these batch of cases is no more res integra, as

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these issues have already been considered and decided by this Court. After

having considered all those aspects, I have passed the order in the

aforementioned judgment in
A.Ramalingam
's case on 09.07.2018.

7. For the sake of better understanding and clarity, the relevant

portion of my order is extracted hereunder:

“11.I have heard the said submissions
made by the learned counsel for the parties.

12.As has been rightly submitted by the
learned counsel for the petitioners, the issue raised
in this batch of writ petitions has already been
decided in number of cases by this Court.
In this
regard, one of the earliest decision of the learned
Judge of this Court was made in W.P.(MD)No.16771
of 2013 in the matter of
V.Ragavan Vs. State of
Tamil Nadu
represented by its Secretary,
School Education Department and others. In

the said decision
, the learned Judge has dealt with
the similar issue and has given his verdict after
exhaustively discussed the various grounds raised
by both sides. In this regard, the following
paragraph of
the said decision
can be usefully
referred to:-

“3.The petitioner was appointed
as a single part time Vocational teacher on

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08.10.1980 and he was regularised on
01.04.1990 in such capacity. Thereafter,
he was promoted as P.G.Assistant
(Commerce) and retired from service on
30.03.2013 on attaining the age of
superannuation. The Government as well
as the private schools were engaging
number of qualified persons as Teachers
for the Vocational subjects either as Double
part time or Single part time Teachers
according to their needs. All of them were
employed indefinitely for years together.
After repeated representations and
agitations, the Government, in order to
bring them under time scale of pay in a
phased manner, directed to fill up 800
posts for the Vocational Instructors in
G.O.Ms.No.712 Education Department
dated 28.05.1990 by appointing them as
Double part time Teachers. Further,
G.O.No.68 dated 20.03.2007 was passed
stating that the Vocational Teachers can
been appointed on par with B.T.Assistants.
After the retirement of the petitioner, the
service rendered by him as part time
Vocational Teacher from 08.10.1980 to
31.03.1990 was not taken into account
while calculating the pension. Under

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similar circumstances, this Court in
W.P.No.39177 of 2002 dated 16.04.2009
directed the respondents to count 50% of
the part time service rendered by the
petitioner therein for the purpose of
calculating the pension. A writ appeal filed
challenging the said order, in W.A.No.1702
of 2010 was dismissed on 20.09.2010.
Further appeal preferred before the
Hon'ble Supreme Court also came to be
dismissed. Therefore, the petitioner is
also entitled to similar relief.”

13.The learned Judge, after having taken
into account the earlier decision rendered in this
regard, which had been taken on appeal by way of
intra Court appeal, wherein also, the view of the
learned Single Judge was confirmed and the same
was also taken to the Hon'ble Apex Court by filing
SLP, the Hon'ble Apex Court also dismissed the said
SLP, confirming the view taken by the High Court,
has allowed the said writ petition.

14.When I had an occasion to consider the
similar issue in W.P.(MD)Nos.256 and 257of 2015 in
the case of
P.Natarajan and another Vs. the State of
Tamil Nadu
represented by its Secretary, School
Education Department and others, I have
considered
the said decision
of the learned Judge

referred to above
, in the teeth of the amended Rule

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11(4) of the Rules, 1978, which reads thus:-

“In the said Rules in Rule 11,
after sub-rule (3), the following sub-rule
shall be added namely:-

“(4)Half of the service rendered
under the State Government in non-
provincialised service, consolidated pay,
honorarium or daily wages basis on or after
1st January 1961 in respect of Government
employees absorbed in regular service
before 1st April 2003 shall be counted for
retirement benefits, along with regular
service, subject to the following conditions,
namely:-

(i)Service rendered in non-

provincialised service, consolidated pay,
honorarium or daily wages basis shall be in
a job involving whole time employment;

(ii)Service rendered shall be on
consolidated pay, honorarium or daily
wages paid on monthly basis and

subsequently absorbed in regular service
under the State Government.

(iii)Service rendered in non-

provincialised service, consolidated pay,
honorarium or daily wages basis shall be
followed by absorption in regular service
before 1st April 2003 without a break:

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Provided that this sub-rule is
applicable to all employees who rendered
service under the State Government in
non-provincilised service, consolidated pay,
honorarium or daily wages basis on or after
1st January 1961 and absorbed in regular
service before 1st April 2003:

Provided further that wherever
there was break in service before their
absorption in regular service before 1st
April 2003, the same shall be specifically
condoned by the orders of the Head of
Departments, in which the employees were
regularly absorbed and such period of
break shall not count for the purpose of
pensionary benefits.”

15.In
the said judgment
in W.P.(MD)Nos.
256 and 257 of 2015 cited supra, after having
considered the submissions made on behalf of the
Government that, the cases decided in favour of the
employees and also the order complied with by the
respondents cannot be taken as precedent, I passed
the following order:-

“12.The learned Judge in
the said
decision
dated 09.04.2014, made in W.P.
(MD) Nos.16771 to 16775 of 2013 etc.,
batch has in fact discussed this issue
exhaustively and has given a detailed

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interpretation as to how the very word
'whole time employment' as employed in
Rule 11(4) of the Tamil Nadu Pension Rules
has to be interpreted. The learned Judge
has given a complete answer to the
objections raised by the respondents
herein in paragraphs 26 to 29 of
the said
judgment
, which have already been
extracted herein above. The learned Judge
has also made a reference that Rule 11(4)
of the Tamil Nadu Pension Rules itself was
impliedly overruled by the Division Bench
of this Court in W.A.No.1702 of 2010 dated
20.09.2010.

14.Yet another factor in the said
batch of cases cited supra is that, all those
petitioners were worked as part-time
Vocational Instructors. For the said part-
time Vocational Instructors, though the
timing was restricted either to have 2.00
p.m. to 5.00 p.m. or 10.00 a.m. to 1.00
p.m. or like that cannot be construed that
those people had worked only in that time
and for the remaining time, they left the
institution. This issue has been
exhaustively discussed by the learned
Judge in
the said decision
(cited supra).
The word 'whole time employment' was

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also to be considered in a particular
manner, has also been discussed and
decided by the learned Judge in
the said
decision
. In this regard it was specifically
held that even though the job is only for a
few hours the teacher had to wait in the
school and present for the whole day
signing attendance for both sessions. This
factor has been specifically discussed and
decided by the learned Judge.

15.Across the Bar, it was also
informed that
the said judgment
was also
implemented. It is also informed across the
bar that as against some similar decisions
made by this Court, the State had gone
upto Supreme Court and the S.L.P. filed by
the State Government has been dismissed.
Though specific reference was not given by
the petitioners side, the said submissions
made by them are not disputed from the
respondents side.

16.Moreover, in one such case,
this Court in W.P.No.4556 of 2007 by order
dated 29.07.2011, a direction was given to
the respondents that 50% of the past
service should be taken into account for
the pensionary benefits. The said order of
this Court dated 29.07.2011 has been

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implemented by the Government through
G.O.(4D) No.19 School Education
Department dated 04.11.2014.

17.The defence now taken by the
learned Government Advocate that this
kind of isolated cases cannot be accepted.
When similarly placed persons are not
treated equally, that also would amount
discrimination. Therefore, the provisions
of
Article 14
of the Constitution of India
can very well be invoked in this case.
Therefore, such kind of discrimination that
too from the State Government cannot be
accepted and permitted.

18.It is an admitted fact that
these two petitioners were working as
part-time Vocational Instructors for longer
years. Only after several years they were
brought under full-time Vocational
Instructors by regularising their services.
Though both the petitioners are getting
pensions, since their past 50% service has
not been taken into account they are
getting a very meagre pension.

Considering these aspects, legislators
themselves though it fit to make
amendment in the Rule. That is why

amendment in Rule 11(4) came into the

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statutory book. The normal rule of
interpretation of statutory Rule is to be
given effect when specific Rule was
brought in by way of beneficial rule. Rule
11(4) of the Tamil Nadu Pension Rules has
been brought in by way of beneficial rule
for the benefit of those who have rendered
unblemished service for several years and
going without getting any pensionary
benefits. Therefore, the said Rule cannot
be subjected to a different interpretation
as has been sought for by the respondents
side. Therefore, this Court is of the view
that Rule 11(4) of the Tamil Nadu Pension
Rules certainly would give leverage to the
petitioners i.e., 50% of their past service,
when they were working as part-time
Vocational Instructors, shall be taken into
account for the purpose of pensionary
benefits.

19.For all the reasons and
discussions made above, this Court is of
the firm view that the petitioners succeed
in these Writ Petitions and they are entitled
to the mandamus as sought for in these
Writ Petitions.

20.In the result, these Writ
Petitions are allowed and the respondents

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are directed to take into consideration 50%
of the past services of the petitioners when
they were working as part-time Vocational
Instructors. Based on such service, the
pensionary benefits of the petitioner shall
be recalculated and the recalculated
pension shall be continued to be paid to
the petitioners. It is needless to state that
when the pension is recalculated from their
date of retirement till payment, arrears
shall also be paid to them. The aforesaid
exercise shall be completed within a period
of three months from the date of receipt of
a copy of this order.

21.With these directions, these
two Writ Petitions are allowed. No costs.”

16.In the recent judgment of the Hon'ble
Division Bench of this Court in W.A.No.882 of 2017
etc., batch, in the case of The Government of
Tamil Nadu, represented by its Secretary to
Government,- School Education Department
and others Vs. K.Pachaiyappan and others, the
Division Bench, after having gone through the issue
once again, has passed the following order:-

“15.In terms of the above discussions,
we dispose of the writ appeals as under:-

(i)50% of the services rendered
by the respondents herein, as Part Time

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Vocational Instructorss (either as Single
Part Time or Double Part Time Vocational
Instructors), shall be counted for the
purpose of computing pension and other
retiral benefits.

(ii)The above said benefit shall be
extended only to the respondents in these
writ appeals and for the persons similarly
situated like that of the respondents
herein, whose cases are pending before
this Court. Thus it is made clear that the
above said benefit shall not be extended to
any other future cases that may be filed on
this account, on the ground of delay and
laches, since all along they have not come
up before this Court and remained as
fence-sitters. It is also needless to point
out that allowing such cases would amount
to opening the pandora's box, touching
upon the financial implications of the
State.”

17.The learned Special Government
Pleader heavily relied upon the aforesaid
observation made by the Division Bench of this
Court that, the benefit extended in the said batch of
cases shall be applicable only to those parties and
the similar benefit shall not be extended to any other
future case that may be filed before this Court, on

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the ground of delay and latches. Since the said
observation of the Division Bench has been heavily
relied upon by the learned Special Government
Pleader, this Court wants to deal with this issue also.

18.First of all, number of cases in this
batch, have already been filed, prior to the said
decision rendered by the Division Bench on
06.04.2018 and were pending before this Court.

19.Further, it is a settled proposition of law
that, in service matters, if the similarly placed
persons, who are entitled to get the benefit under
law, having been denied the benefit, even though in
this regard already a decision has been rendered by
the Court of law and the same is implemented, the
very same relief shall also be extended to all
similarly placed persons irrespective of the fact,
whether they approached the Court or not, if the law
declared by the Court is judgement in rem.

20.Insofar as the declaration made by this
Court in number of decisions, as has been referred
to above, which were confirmed by the Division
Bench of this Court and subsequently, by the Hon'ble
Apex Court and also with regard to the entitlement
of pensionary benefits of the Teachers / employees,
who had rendered continuous / unblemished
services for several years, either as part time or full
time or temporary or adhoc basis, by taking note of
the 50% of the said services they rendered, prior to

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they brought in under regular time scale of pay or
absorption, such entitlement was declared by the
Court of law, which shall be the judgment in rem. If
the law is declared by the Courts and similar
pensionary benefits, having been declared by the
Court of law and having been conferred to several
such similarly placed persons by employer /
Government, then, certainly this Court can extend
those benefits for similarly placed, who seek such
remedy by approaching this Court.

21.Moreover, the cause of action arose in
these kind of cases are continuous cause of action as
each of the petitioners, who are the erstwhile
employees of the respective employer / State, would
be entitled to get the pensionary benefits till their
life time. Thereafter, the legal heirs would be
entitled to get the family pension benefits.

22.Therefore, the benefits accrued on
them, which have been claimed before this Court, by
way of this litigations, are continuous in nature.
Therefore, once the continuous cause of action is
available for litigant, he / she can approach the
Court of law at any point of time.

23. If the judgment is in rem, the benefit of
the judgment to other similarly placed or situated
persons can be extended and in this regard, the plea
of delay/laches or expiry of limitation can be
condoned.

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24. Emphasizing the said principle, the
Hon'ble Apex Court in 1997 (6) SCC 721 in the
matter of
K.C.Sharma and others v. Union of
India and others
held as follows:

“3. This appeal is directed against
the judgment of the Principal Bench of the
Central Administrative Tribunal (hereinafter
referred to as 'the Tribunal') dated July 25,
1994 in O.A. No. 774 of 1994. The appellants
were employed as guards in the Northern
Railway and they retired as guards during the
period between 1980 and 1988. They felt
aggrieved by the notifications dated December
5, 1988 whereby Rule 2544 of the Indian
Railways Establishment Code was amended
and for the purpose of calculation of average
emoluments the maximum limit in respect of
Running Allowances was reduced from 75% to
45% in respect of period from January 1, 1973
to March 31, 1979 and to 55% for the period
from April 1, 1979 onwards.

4. The validity of the retrospective
amendments introduced by the impugned
notifications dated December 5, 1988 had been
considered by the Full Bench of the Tribunal in
its judgment dated December 16, 1993 in O.A.
No. 395-403 of 1993 and connected matters
and the said notifications in so far as they gave
retrospective effect to the amendments were
held to be invalid as being violative a Articles

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14 and 16 of the Constitution. Since the
appellants were adversely affected by the
impugned amendments, they sought the
benefit of the Full Bench of the Tribunal by
filing representations before the Railway
Administration. Since they failed to obtain
redress, they filed the application (O.A. NO.
774 of 1994) seeking relief before the Tribunal
in April 1994. The said application of the
appellants was dismissed by the Tribunal by
the impugned judgment on the view that the
application was barred by limitation. The
Tribunal refused to condone the delay in the
filing of the said applications.

5. The correctness of the decision of
the Full Bench of the Tribunal has been
affirmed by this Court in
Chairman, Railway
Board & Ors. V. C.R. Rangadhamaiah & Ors.,
Civil Appeals Nos
. 4174-4182 of 1995 and
connected matters decided today.

6. Having regarding to the facts and
circumstances of the case, we are of the view
that this was a fit case in which the Tribunal
should have condoned the delay in the filing of
the application and the appellants should have
been given relief in the same terms as was
granted by the Full Bench of the Tribunal. The
appeal is, therefore, allowed, the impugned
judgment of the Tribunal is set aside, the delay
in filing of O.A. No. 774 of 199 is condoned and
the said application is allowed. The appellants

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would be entitled to the same relief in matter
of pension as has been granted by the Full
Bench of the Tribunal in its judgment dated
December 16, 1993 in O.A. Nos. 395-403 of
1993 and connected matters. No order as to
costs.”

25. The Hon'ble Supreme Court in (2006)
2 SCC 747 in the matter of
State of Karnataka
and others v. C.Lalitha
, has made the following
observations:

“29.Service jurisprudence evolved by
this Court from time to time postulates that all
persons similarly situated should be treated
similarly. Only because one person has
approached the court that would not mean that
persons similarly situated should be treated
differently.

26. Insofar as the principle that, seeking
redressal against the denial of service benefits, for
which, the employee is entitled to, and if it is the
continuing cause of action, the question of
limitation/delay does not arise in those cases, where
the employee seek for such benefit, which has
already been given to similarly placed persons,
Courts have taken the view in favour of the
employees.

27. To emphasize the said principle, the
Hon'ble Supreme Court in (2010) 12 SCC 538 in
the matter of State of Madhya Pradesh and

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others v. Yogendra Srivatsava
has held as follows:

“16. The Tribunal directed payment
of the difference in NPA to respondents from
their respective dates of appointment. The
respondents were appointed from 1982
onwards. The respondents had approached the
Tribunal long after their appointment, that is,
in 1998 or thereafter.

17. The appellants contended that
the claims were therefore barred by limitation.

It was pointed out that the respondents were
paid NPA at a fixed rate as stipulated in the
appointment orders and NPA was increased
only when it was revised by Government orders
from time to time; that respondents accepted
such NPA without protest; and that therefore,
they cannot, after periods varying from 5 to 15
years, challenge the fixation of NPA or contend
that they are entitled to NPA at a higher rate,
that is 25% of their pay.

18.We cannot agree. Where the issue
relates to payment or fixation of salary or any
allowance, the challenge is not barred by
limitation or the doctrine of laches, as the
denial of benefit occurs every month when the
salary is paid, thereby giving rise to a fresh
cause of action, based on continuing wrong.

Though the lesser payment may be a
consequence of the error that was committed
at the time of appointment, the claim for a
higher allowance in accordance with the Rules

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(prospectively from the date of application)
cannot be rejected merely because it arises
from a wrong fixation made several years prior
to the claim for correct payment. But in
respect of grant of consequential relief of
recovery of arrears for the past period, the
principle relating to recurring and successive
wrongs would apply. Therefore the
consequential relief of payment of arrears will
have to be restricted to a period of three years
prior to the date of the original application.
[See:
M.R. Gupta vs. Union of India
-
1995 (5)
SCC 628, and Union of India vs. Tarsem
Singh
2008.”

28. More than one Division Bench of this
Court considered the issue raised in these batch of
cases, as to whether the single or double part time
Vocational Instructors were entitled to seek the
benefit of reckoning the 50% of the past services
rendered by them till they brought under time scale
of pay and absorption, in view of Rule 11, especially,
Rule 11(4) of the Tamil Nadu Pension Rules, 1978.
Having considered and decided in favour of the
employees and against those decisions, though State
preferred Special Leave Petitions, the Hon'ble Apex
Court by dismissing the said S.L.Ps. affirmed the
decisions of this Court and following which
,
the said
decision
rendered by the Writ Court as affirmed by
the Division Bench of this Court as well as the

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Hon'ble Apex Court has been implemented. When
that being so, whether diagonally opposite view can
be taken by a subsequent decision to deny such
benefits to those, who had not immediately come
and approached this Court subsequently and in this
regard, whether a cut off date can be fixed to
prevent the aggrieved persons/employees/litigant to
approach the Court, can no longer be an issue
without any resolvement.

29.
In this regard, the Hon'ble Apex Court
has given a strong observation in 2015 (8) SCC
129 in
P.Suseela and others v. University Grants
Commission and others
, where the Hon'ble Apex
Court has made the following observations:

“25.In SLPs (C) Nos.3054-55 of 2014,
a judgment of the same High Court dated
06.01.2014 again by a Division Bench arrived
at the opposite conclusion. This is also a
matter which causes us some distress. A
Division Bench judgment of the same High
court is binding on a subsequent Division
Bench. The subsequent Division bench can
either follow it or refer such judgment to the
Chief Justice to constitute a Full Bench if it
differs with it. We do not appreciate the
manner in which this subsequent judgment
(even though it has reached the right result),
has dealt with an earlier binding Division

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Bench judgment of the same High Court.”

30. That apart, it has been brought to the
notice of this Court by the learned members of the
Bar, who supported the case of the petitioners
herein that, at least in two Division Benches of this
Court, in recent decisions, the view taken by this
Court in a number of decisions on the issue, raised
in this batch of cases, have been reaffirmed and
amplified.

31. The first decision is by a Division Bench
of this Court made in W.A.No.51 of 2018 etc
batch dated 27.03.2018 in the matter of
Government of Tamil Nadu represented by its
Principal Secretary to Government, Forest and
Environment Department and others v.
K.Sakthivel and others.

32. In the said Division Bench judgment,
the issue of calculating the 50% of past services
rendered by temporary employees (in that case, it
was Plot Watcher), was considered in detail, where
the earlier judgments of this Court had been taken
note of and ultimately, the Division Bench concluded
that the said benefits conferred to the private
respondents, who were the petitioners before the
Writ Court were affirmed/confirmed.

33. The Division Bench in the said
judgment has made the following decision:

“24.The validity of fixing such a cut-

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off date was the subject matter of
consideration in the case of
P.Chinniyan v. State
of Tamil Nadu
rep. by its Secretary to
Government, Forest and Environment (FR-2)
Department, Chennai ? 600 009 and Others
reported in (2014)6 MLJ 316 and the Court
held that the prescription of cut-off date as
01.04.2003 for absorption into regular service
under Rule 11(4) to count half of the service
rendered prior to absorption has no rational
basis and the same is arbitrary and violative
of
Article 14
of the Constitution of India.

25.It was further held that Rule 11(4)
is totally redundant in view of Rule 11(2),
which does not prescribe any cut-off date as to
absorption into regular service. Therefore, it
was held that the benefits given under Rule
11(2) cannot be deprived and taken away by
Rule 11(4) and thus the cut-off date of
absorption as 01.04.2003 prescribed in Rule
11(4) should be ignored, otherwise it will lead
to grave injustice. The Court took note of the
facts of the said case, where the petitioner
therein was working on daily wages from 1967
till 2003 and when he was absorbed as a Mali,
he has served for more than 36 years before
his absorption in regular service. The said
decision in the case of B.Chinnaiyan was
followed in the cases of W.P.Nos.21355 and
21356 of 2017, dated 08.09.2017. In
the said
decision
, reference was made to the decision of

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the Hon'ble Division Bench in the case of Union
of India v. K.Punniyakottai reported in 2014 (2)
CTC 777, where more or less an identical case
was considered arising under the CCS
(Pension) Rules, 1972 in respect of the
employees of the Central Government.

Therefore, the Court concluded that 50% of the
services rendered by the employee on daily
wages should be considered for computing
total length of service.

26.The two Division Benches in the
cases of the State of Tamil Nadu rep. by its
Secretary to Government, (FR-2) Forest and
Environment Department, Fort St. George,
Chennai ? 600 009 v. S.Jayaraman [W.A.No.
1482 of 2016, dated 22.01.2018] and
Government of Tamil Nadu rep. by its
Secretary, Environment and Forest
Department, Fort St. George, Chennai ? 600
009 v. S.Thillai Govindan [W.A.No.1733 of
2017, dated 13.02.2018] took note of the
decision in the case of B.Chinnaiyan, wherein
the cut-off date was quashed, dismissing the
appeals filed by the Government. Thus, the
decision in the case of B.Chinnaiyan has
received the seal of approval of the Hon'ble
Division Benches. Thus, in the present factual
position, whether the appellants are justified in
contending that the earlier Judgments are not
binding upon them, despite most of them
having been implemented by the appellants.

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27.In our considered view, the stand
taken by the appellants is wholly unsustainable
as the Special Leave Petitions filed against
some of the decisions of the Hon'ble Division
Bench was not dismissed in limini, but were
dismissed on the ground that there were no
merits in the appeal. Therefore, the order
passed by the Hon'ble Supreme Court has
assigned reasons and it is not a dismissal of a
Special Leave Petition simpliciter. Therefore,
the decisions bind the Government and
consequently, the decisions relied on by the
learned Special Government Pleader in the
cases of Harpal Kaur Chahal (Smt) v. Director,
Punjab Instructions, Punjab and Another
reported in 1995 Supp (4) SCC 706 and
Col.B.J.Akkara (Retd.) v. Government of India
and Others reported in (2006)11 SCC 709 are
distinguishable on facts.

28.The Judgment of the Division
Bench in the case of Principal Secretary, Social
Welfare and Nutritious Meal Programme
Department, Fort. St. George, Chennai and
Others v. M.Palanikani [W.A(MD)No.587 of
2014, etc. batch, dated 03.12.2014] does not
render any support to the case of the
appellants, as the said case arose out of an
appointment to the posts of
Teachers/Supervisor Grade II and Rural
Welfare Officers from those who were
functioning as Noon Meal Organisers in

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Schools as well as Child Welfare Organizers in
Integrated Child Development Scheme (ICDS).
Thus, the appointment in those cases, were
fresh appointment to a different department,
unlike the case on hand. Further, the cases on
hand are not cases seeking retrospective
regularisation, as sought for in the case of the
State of Tamil Nadu, rep. by the Secretary,
Department of Health and Family Welfare, Fort
St. George, Chennai and Others v. T.Gopal and
Others reported in 2016 Writ L.R. 1160.

29.As noticed above, the decision to
bring the writ petitioners into regular time
scale of pay, was taken in the year 1999 and
the writ petitioners were extended the benefits
in the year 2009. By then, several of them, had
completed more than 30 years of service, as
daily wagers. The past service was reckoned
for the purpose of justifying their absorption
into regular time scale of pay. Therefore, it will
be a misnomer to state that the appointments
made to the post of Forest Watchers is a fresh
appointment. The stand taken by the appellants
in this regard is to be rejected by merely
referring to the preamble portion of G.O.
(Ms)No.64, dated 08.03.1999 and G.O.(Ms)No.
95, dated 07.08.2009. Therefore, the said
contention raised by the appellants required to
be outrightly rejected.

30.There can be no denying the fact
that the appellants themselves have

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implemented various decisions of the Division
Benches, in some of which, no appeals were
preferred to the Hon'ble Supreme Court.
Therefore, now to take a different stand in the
present appeals as well as writ petitions would
impermissible and a situation cannot be
allowed to prevail causing discrimination
between similarly placed persons. Thus, in the
facts and circumstances of the case and in the
light of the above discussion, we find that the
State has not made any grounds to interfere
with the orders passed in the writ petitions and
therefore, the writ appeals are liable to be
dismissed and the similar writ petitions are
liable to be allowed.

31.In the result,

(i)W.A(MD)Nos.51 of 2018, 1431 and
1432 of 2017 are dismissed, confirming the
orders passed in W.P(MD)Nos.22833 of 2016,
15903 of 2012 and 22832 of 2016. No costs.
Consequently, connected C.M.P(MD)No.262 of
2018, 10923 and 10927 of 2017 are dismissed.

(ii)All other writ petitions filed by the
Plot Watchers are allowed, as prayed for. No
costs. Consequently, connected W.M.P(MD)Nos.
4753 and 4754 of 2018 are closed.

(iii)The appellants/respondents are
directed to verify the service particulars of all
the writ petitioners and count 50% of the
services rendered by them on temporary basis
and consequently refix their pension within a

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period of four months from the date of receipt
of a copy of this Judgment/ order.

(iv)In case, where the
petitioners/employees had died, the benefit
shall accrue to their legal heirs and the
payment shall be effected in the name of one of
the legal heirs after obtaining proper
authorisation from the other legal heirs.

(v)So far as W.P(MD)No.6878 of 2017
is concerned, though the petitioner seeks for
promotion to the post of Plot Watcher, the same
is a misnomer as it is not a promotion, but
absorption in the post of Forest Watcher.
Therefore, whatever the relief granted to the
other petitioners, shall enure in favour of this
petitioner also and the writ petition stands
disposed of accordingly. No costs.

(vi)In W.P(MD)No.22510 of 2015,
apart from seeking for regularisation of the
services by counting 50% of the services
rendered as Plot Watcher, the petitioner seeks
for pensionary benefits also. This Court has
directed that the benefit of 50% of the services
should be reckoned, while calculating the
length of service. Thus, if the petitioner has
attained the age of superannuation, it goes
without saying that consequential revision in
pensionary benefits are required to be settled
and the writ petition stands disposed of
accordingly. No costs.”

34. Yet another decision of another Division

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Bench of this Court, which is latest in this regard is
the decision made in WA(MD) No.844 of 2018
dated 03.07.2018 in the matter of State of Tamil
Nadu represented by Secretary, School
Education Department and others v. C.Jeya
Rani Gnana Devi.

35. In the said judgment, dated 03.07.2018,
the Division Bench of this Court has passed the
following order:

“4. When the matter is taken up for
hearing, the learned counsel appearing for the
respondent submitted that the issue involved in
the present writ appeal is covered by the
decision of a Division Bench of this Court dated
21.04.2017 made in W.A(MD)Nos.392, 393 and
389 of 2017 etc., batch, wherein the Division
Bench held as follows:

“10. The Writ Court further observed
that in the light of the decision of the Hon'ble
First Bench, the Rule itself stands impliedly
overruled. That apart, it was held that if the
benefit is not granted, it would amount to
discriminating the similarly placed persons.
Further, the Writ Court noted that the
Government has chosen to extend certain
benefits in respect of part time workers as
found in G.O.Ms.No.39, 13.06.2011 and
therefore, the benefit cannot be denied to part
time vocational instructors by stating that the
said Government Order is applicable to
panchayat clerks and not to vocational
instructors.

11. Learned Additional Government
Pleader after elaborately referring to the

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factual matrix placed reliance on the decision
of the Division Bench in the case of the
Principal Secretary Social Welfare and
Nutritious Meal Programme Department and
others vs. M.Palanikani made in W.A.Nos.587
etc., batch dated 03.12.2014 and submitted
that the Division Bench has allowed the
appeals and set aside the order passed by the
learned single Judge wherein relief was
granted to count 50% of the services in the
noon meal scheme.

12.Firstly, we may point out that the
terms of employment of staff in the noon meal
scheme are not in pari materia with that of the
terms of appointment of vocational instructors.

This fact cannot be denied by the appellants.
Furthermore, in paragraph 21 of the said
judgment, the Court framed the question which
has to be decided with a specific reference and
a cutt off date which had been fixed namely, on
01.04.2003. Admittedly, all the writ petitioners
were appointed much prior to the said date and
the decision of the Hon'ble Division Bench is
factually distinguishable. Thus, we are of the
considered view that the impugned order
having been rendered by referring to and
relying upon the decisions of the Hon'ble First
Bench, we find no grounds to take a different
view in the matter. Accordingly, the writ
appeals are dismissed. No Costs. Consequently,
connected miscellaneous petitions are closed.”

5. Mr.Baskarapandian, learned
Special Government Pleader appearing for the
appellants also fairly submitted that the issue
involved in the present writ appeal is covered
by the decision relied on by the learned
counsel for the respondent.

6. In view of the submissions made
by the learned counsel on either side, following

the judgment made in W.A(MD)Nos.392, 393

and 389 of 2017 etc., batch dated 21.04.2017,

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the writ appeal is liable to be dismissed and
accordingly, the same is dismissed. No Costs.
Consequently, connected Miscellaneous
Petition is closed.”

36. From the reading of the aforesaid
judgments, especially, the later decisions rendered
by two Division Benches of this Court, it become
clear that, the view taken by this Court insofar as
the confirmation of benefit of calculating 50% of the
past services rendered by the employees, who
worked as Vocational Instructors or otherwise on
temporary basis before they brought in regular time
scale of pay and regular absorption, had been
consistently followed by various Division Benches of
this Court.

37. There had been earlier judgments of
the Division Benches and there had been later
judgments of the Division Benches including the
recent one passed, just before a week or two. While
so, the only Division Bench decision dated
06.04.2018 made in W.A.No.882/2017, as has been
relied upon by the learned Special Government
Pleader takes a slightly different view, where also,
the principle in extending the said benefit had been
accepted, but the only prohibition was that the same
shall not be extended hereafter to any such
employee, who comes to the Court, after
06.04.2018. In this regard, the learned counsel for
the petitioners have relied upon a Full Bench

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judgment of the Patna High Court reported in AIR
1987 Patna 191, in Amarsingh Yadav and
another v. Shanti Devi and others.

38. One of the question posed before the
Full Bench for resolvement is as follows:

“(1) Where there is a direct conflict
between two decisions of the Supreme Court,
rendered by co-equal Benches, which of them
should be followed by the High Court and the
Court below ?”

39. After elaborate consideration, the Full
Bench has given its answer, which reads thus:

“24. To conclude on this aspect, it is
held that where there is a direct conflict
between two decisions of the Supreme Court
rendered by co-equal Benches, the High Court
must follow that judgment which appears to it
to state the law more elaborately and
accurately. The answer to question (1) posed at
the outset is rendered in these terms.”

40. Therefore, the principle was, as
enunciated in the said Full Bench judgment of the
Patna High Court that, if two conflicting decisions
are available, rendered by co-equal benches, the
High Court must follow the judgment, which appears
to it to state the law more elaborately and
accurately.

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41. If the said principle is applied to the
facts of the present case, except the decision dated
06.04.2018 of a Division Bench of this Court, no
other Division Bench either prior to or after to that,
has taken any different view, as the one taken in the
said judgment and in all other Division Bench
judgments, a uniform and consistent stand taken by
this Court was that, the benefit of taking into
account 50% of the services rendered by the
employees before they brought into regular service
shall be the basis for calculating for the purpose of
pension and retiral benefits. Even in the said
judgment dated 06.04.2018 in W.A.No.882/2017,
that view was accepted and endorsed by the said
Division Bench also, but the only embargo the
Division Bench has put in that, the said benefit
cannot be extended to those who come to the Court
hereafter. In order to meet out the said embargo,
the aforesaid judgments of the Hon'ble Apex Court,
as referred to above, with regard to the continuous
cause of action and the benefit, which has been
declared by the Court through a judgment in rem
has to be extended to similarly placed persons, had
been quoted.

42. In view of the settled legal position, as
has been declared in all these decisions, all these
petitioners, even though filed writ petitions recently
and some of them might have filed after 06.04.2018

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i.e., the date, on which the aforesaid Division Bench
Judgment had been rendered by this Court, in the
opinion of this Court, are entitled to get the similar
benefits, as that of the benefits which have already
been given to the number of similarly placed
employees / Teachers.

43. Therefore, the observations made in the
aforesaid judgment made in W.A.No.882 of 2017 and
etc., batch, as has been heavily relied upon by the
learned Special Government Pleader in this regard,
would no way advance the case of the respondents
and that no way be helpful to the respondents to
deny the lawful right of the petitioners, which have
already been accrued and has been continuously
accruing every month because the pensionary
benefits are to be disbursed till the death of the
employee / death of the legal heirs. Therefore, the
said objection raised by the respondents are liable to
be rejected, accordingly, they are rejected.

44. In view of the aforesaid judgments,
wherein the issue as has been put forth by the
learned counsel for the petitioners, having been
dealt with and decided more than once by the Writ
Court and the same has been confirmed by the
Division Bench of this Court more than once and in
cases, where SLP preferred before the Hon'ble
Supreme Court, wherein also the view taken by this
Court has been confirmed, all these petitioners are

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entitled to, for calculating 50% of the past services,
rendered by each of the petitioners in the respective
employment before they got absorbed by bringing
them under the time scale of pay irrespective of the
years of service, for the purpose of pensionary
benefits. Hence, these petitioners also shall be
entitled to get the same benefits and accordingly, all
these writ petitions are fit to succeed.

45. In the result, these writ petitions are
allowed and the respective respondents in each of
the writ petitions are hereby directed to take into
account the 50% of the past services rendered by
each of the petitioners either as Vocational
Instructors or any other employment either as a Part
Time / Full time / adhoc / temporary / daily wages
employees before they brought in under the regular
time scale of pay on permanent basis or absorption
and by calculating the said 50% of their past service,
pension eligibility and pension enhancement or
difference of pay and pension shall be calculated
and disbursed in favour of the respective petitioners.
After fixing the revised pension by taking into
account the past 50% services, the revised pension
arrears shall be calculated and to be disbursed to
the petitioners within a period of 12 weeks from the
date of receipt of a copy of this order. It is needless
to mention that the petitioners shall continue to
receive the revised pension.

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46. Insofar as W.P.(MD)Nos.6065 of 2016
and 6789 of 2017 are concerned, the petitioners
since having not been paid any pension so far, the
aforesaid exercise shall be undertaken by the
respective respondents in that writ petitions also
and the entire arrears of pension shall be disbursed
to the said petitioners within the said time frame
indicated above.

47. Insofar as W.P.(MD)No.11896 of 2018 is
concerned, since the petitioner is the widow of the
employee, the pensionary benefits shall be
calculated, accordingly, as indicated, and arrears till
the death of the petitioner's husband shall be
calculated and thereafter, the family pension arrears
shall be calculated and all the arrears shall be
disbursed to the petitioner i.e., the widow of the
employee, within the period of twelve weeks, from
the date of receipt of a copy of this order.

48. With these directions all these writ
petitions are allowed as indicated above. No costs.”

8. Since the said issue has been considered and decided already

in number of cases and in some of the cases, even though appeal filed

before the Hon'ble Apex Court, the decision rendered by this Court has

been confirmed and accordingly, in those cases, the orders passed by this

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Court have been complied with. When that being the position, since some

of the petitioners herein are still working as Teachers and some of them

have already retired, and in both, the benefits now sought by these

petitioners given raise to them as a continuous cause of action and

therefore, the accrued right on the part of the petitioners and it is still

accruing every month, cannot be taken away merely by placing a

predicament or impediment that those, who approaches this Court

belatedly, cannot be granted the relief or extended the similar relief

extended to similar persons.

9. In this regard, in the aforesaid decision of Mine, I have given a

detailed and thorough consideration on the case laws and in view of the

settled legal propositions, the said embargo, as has been taken by the

learned Special Government Pleader in this batch of cases, by citing the

said Division Bench judgment dated 06.04.2018, cannot be applicable to

these cases also. Hence, this Court has no hesitation to grant the similar

relief, which have already been granted to similarly placed persons, to

these writ petitioners also.

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10. Accordingly, all these writ petitions are ordered in the terms

of the said order dated 09.07.2018 by giving the following directions:

“the respective respondents in each of the writ
petitions are hereby directed to take into account the 50%
of the past services rendered by each of the petitioners
either as Vocational Instructors or any other employment
either as a Part Time / Full time / adhoc / temporary /
daily wages employees before they brought in under the
regular time scale of pay on permanent basis or absorption
and by calculating the said 50% of their past service,
pension eligibility and pension enhancement or difference
of pay and pension shall be calculated and disbursed in
favour of the respective petitioners. After fixing the
revised pension by taking into account the past 50%
services, the revised pension arrears shall be calculated
and to be disbursed to the petitioners within a period of 12
weeks from the date of receipt of a copy of this order. It is
needless to mention that the petitioners shall continue to
receive the revised pension.”

No costs.

26.07.2018
Index : Yes
Internet : Yes
ta

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R.SURESH KUMAR,J.

ta

To

1.The Principal Secretary to Government,
School Education Department,
Fort St.George, Chennai-600 009.

2.The Director of School Education,
DPI Complex, College Road,
Chennai-600 006.

3.The Joint Director of School Education (Vocational),
O/o. the Director of School Education,
DPI Complex, College Road,
Chennai-600 006.

4.The Chief Educational Officer,
O/o. Chief Educational Officer,
Theni District, Theni.

W.P.(MD)Nos.16455 to 16461 and 16433 of 2018

26.07.2018

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