Madras High Court

J.Dharmaraj vs The State Of Tamilnadu on 2 August, 2018

Author:
R.Suresh Kumar

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

DATED: 02.08.2018

CORAM

THE HON'BLE MR.JUSTICE R.SURESH KUMAR

W.P.(MD) Nos.16774, 17234, 17235 and 17306 of 2018

W.P.(MD) No.16774 of 2018
J.Dharmaraj ... Petitioner

vs.

1.The State of Tamilnadu,
Rep. by its Secretary, School Education Department,
Fort St.George,
Chennai.

2.The Director of School Education,
College Road,
Chennai.

3.The Chief Educational Officer,
Madurai District,
Madurai. ... Respondents
Prayer: Writ Petition filed under
Article 226
of the Constitution of India for
issuance of a Writ of Mandamus to direct the respondents to dispose of the
petitioner's representation dated 23.06.2017 submitted for taking into
account of 50% of his part time service rendered by him from 26.08.1988 to
15.10.1992 along with regular service in the light of the order dated
09.04.2014 passed in W.P.No.16771 of 2013 based on his representation
dated 23.06.2017 within a time frame as fixed by this Court.

For Petitioner :Mr.B.Prahalad Ravi

For Respondents :Mr.D.Muruganandham
Additional Government Pleader
http://www.judis.nic.in
W.P.(MD) No.17234 and 17235 of 2018
S.Kanagammal ... Petitioner in W.P.(MD)No.17234 of 2018
P.Nagarajan ... Petitioner in W.P.(MD)No.17235 of 2018
vs.
1.The Principal Secretary to the Government,
Department of School Education,
Fort St.George,
Chennai-9.

2.The Director of School Education,
O/o. the Director of School Education,
DPI Campus, College Road,
Chennai-6.

3.The Joint Director of School Education (Vocational),
O/o. the Joint Director of School Education (Vocational),
DPI Campus, College Road,
Chennai-6. ... Respondents in both W.Ps.

4.The Chief Educational Officer,
O/o. the Chief Educational Officer,
Nagercoil,
Kanyakumari District.

5.The Principal Accountant General (A&E),
O/o. the Principal Accountant General (A&E),
361, Anna Salai,
Chennai-600 018.

6.The District Educational Officer,
O/o. the District Educational Officer,
Kuzhithurai,
Kanyakumari District.

7.The Headmaster,
Government Higher Secondary School,
Palukal,
Kanyakumari District. :Respondents 4 to 7 in W.P.(MD)No.17234 of 2018
8.The Chief Education Officer,
Collectorate Buildings,
Karur,
Karur District.

http://www.judis.nic.in9.The District Educational Officer,
Collectorate Buildings,
Karur,
Karur District.

10.The Principal Accountant General (G&SSA),
“LEKHA PARISHA BHAVAN”
No.361, Anna Salai,
Teynampet,
Chennai-600 018.

11.The Headmaster
Government Boys Higher Secondary School,
Pugalur,
Karur District. : Respondents 4 to 7 in W.P.(MD)No.17235 of 2018

Common Prayer: Writ Petition filed under
Article 226
of the Constitution of
India for issuance of a Writ of Mandamus to direct the respondents to re-fix
the petitioner's pension by including the 50% of the service rendered by the
petitioner as Part Time Vocational Instructor in consolidated pay along with
regular service with all other consequential benefits in the light of the
judgment of this Court in W.P.(MD)No.795 to 797 of 2018, dated 12.02.2018
within the time period stipulated by this Court.
For Petitioner :Mr.T.Aswin Rajasimman
(In both W.Ps)
For R1 to R4 & R6 :Mr.D.Muruganandham
Additional Government Pleader
For R5 :Mr.P.Gunasekaran
(In both W.Ps)

W.P.(MD) No.17306 of 2018
k.Ramalakshmi ... Petitioner

vs.
1.The State of Tamilnadu
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,
http://www.judis.nic.in 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,
Tirunelveli District,
Tirunelveli.

5.The Accountant General,
O/o. the Accountant General (A&E),
Teynampet,
Chennai-600 018. ... Respondents
Prayer: Writ Petition filed under
Article 226
of the Constitution of India for
issuance of a Writ of Mandamus to direct the respondents 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 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 R1 to R4 :Mr.K.Saravanan
Government Advocate
For R5 :Mr.P.Gunasekaran

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) No.16774 of 2018, the petitioner is still working as

Vocational Instructors. In W.P.(MD) Nos.17306, 17234 and 17235 of 2018,

http://www.judis.nic.inthe respective petitioners have retired from service.
3. Since their services have been brought to time scale of pay after

some years and from that date, their services have been calculated 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 double 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 Additional Government Pleader and 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
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parties, the issue raised in these batch of cases is no more res integra, as

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

08.10.1980 and he was regularised on
01.04.1990 in such capacity. Thereafter, he
was promoted as P.G.Assistant (Commerce) and
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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 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
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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 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:-

http://www.judis.nic.in (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:

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
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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 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
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the institution. This issue has been exhaustively
discussed by the learned Judge in
the said
decision
(cited supra). The word 'whole time
employment' was 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 implemented by the
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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
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
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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 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
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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 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
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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 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
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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 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.

http://www.judis.nic.in

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 14
and
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
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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 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
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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 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

http://www.judis.nic.in 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
(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
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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 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-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

http://www.judis.nic.in 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 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
http://www.judis.nic.in 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.

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
http://www.judis.nic.in 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 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
http://www.judis.nic.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 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
http://www.judis.nic.in 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 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 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
http://www.judis.nic.in
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 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
http://www.judis.nic.in 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, 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
http://www.judis.nic.in
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
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
http://www.judis.nic.in
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.

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.

http://www.judis.nic.in 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 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 entitled to, for
calculating 50% of the past services, rendered by each of
http://www.judis.nic.in
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.

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
http://www.judis.nic.in
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 Court

have been complied with. When that being the position, since one of the

petitioner herein is still working as Teacher 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.

http://www.judis.nic.in
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 those 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 persons, to these writ

petitioners also.

10. Accordingly, all these writ petitions are ordered in 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 as
Vocational Instructors either as a Part Time / Full time
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
http://www.judis.nic.in
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. Consequently connected Miscellaneous Petitions are closed.

02.08.2018

Index : Yes/No
Internet : Yes
rmi/RR

http://www.judis.nic.in
To:

1.The Principal Secretary to the Government,
Department of School Education,
Fort St.George,
Chennai-9.

2.The Director of School Education,
O/o. the Director of School Education,
DPI Campus, College Road,
Chennai-6.

3.The Joint Director of School Education (Vocational),
O/o. the Joint Director of School Education (Vocational),
DPI Campus, College Road,
Chennai-6.

4.The Chief Educational Officer,
O/o. the Chief Educational Officer,
Nagercoil,
Kanyakumari District.

5.The Principal Accountant General (A&E),
O/o. the Principal Accountant General (A&E),
361, Anna Salai,
Chennai-600 018.

6.The District Educational Officer,
O/o. the District Educational Officer,
Kuzhithurai,
Kanyakumari District.

http://www.judis.nic.in
R.SURESH KUMAR, J.

rmi/RR

W.P.(MD) Nos.16774, 17234, 17235 and 17306 of 2018

02.08.2018

http://www.judis.nic.in