IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.06.2012
CORAM
THE HON'BLE Mr. JUSTICE N. PAUL VASANTHAKUMAR
Writ Petition No.14987 of 2012
S.Simieon Raj ... Petitioner
Vs.
1. Government of Tamil Nadu
Rep. by its Secretary to Government
Forest and Environment Department
Fort St.George
Chennai 600 009.
2. The Principal Chief Conservator of Forests
Panagal Building, Saidapet
Chennai 600 015
3. The District Forest Officer,
Tirupattur Forest Division and
Joint Director of Aanaimalai Tiger Reserve Forest,
Udumalaipettai,
Tirupathur District.
4. The Accountant General of T.Nadu
Office of the Accountant General
Office at Teynampet
Chennai 600 018. ... Respondents
Writ petition filed under Article 226 of the Constitution of India to issue a writ of Mandamus directing the respondents to count half of the service rendered by the petitioner as Social Forestry Worker from 01.09.1982 till 20.08.2005 along with regular service rendered by him as Forest Watcher from 24.08.2005 to 31.07.2011 as qualifying service and send the revised proposal to the fourth respondent and to grant pension with all consequential monetary benefits.
For Petitioner : Mr.S.Mani
For Respondents 1 to 3 : Mr.M.Hidyathulla Khan, G.A., (Forest)
For 4th Respondent : Mr.V.Vijayshankar
O R D E R
The prayer in the writ petition is to direct the respondents 1 to 3 to count half of the service rendered by the petitioner as Plot Watcher from 1.9.1982 to 20.8.2005 along with regular service rendered by him as Forest Watcher from 24.8.2005 till 31.7.2011 as qualifying service and send the revised proposal to the fourth respondent and to grant pension with all consequential benefits.
2. The case of the petitioner is that he was initially appointed as Plot Watcher in the Forest Department on 1.9.1982 on daily wage basis and from that date he was continuously engaged by the respondents 1 to 3. While so, based on the orders passed by this Court, the Government issued various Government Orders, based on which the respondents 1 to 3 drew a State wide seniority list as per the initial date of engagement of the daily wage workers in the Forest Department for the purpose of bringing them under regular time scale of pay and to confer all other consequential benefits. The petitioner was assigned with Serial No.2043 based on his initial date of engagement and was brought under time scale of pay with effect from 24.8.2005. The services of the petitioner came to be regularized only after 23 years of unblemished service and he was conferred with all benefits as that of the Government Servant. Subsequently, the petitioner retired from service on 31.7.2011, after attaining the age of superannuation.
3. Now, the grievance of the petitioner is that he was not granted pensionary benefits under the Tamil Nadu Pension Rules, 1978 on the ground that he is not having ten years of pensionable service, as the respondents have treated petitioner's service of 23 years on daily wage basis as non-pensionable service.
4. When the writ petition was posted for admission, the learned counsel for the petitioner submitted that the issue is covered by the decision of this Court made in W.P.No.8205 of 2011 dated 19.4.2011, which was confirmed in W.A.No.27 of 2012 dated 13.2.2012 and by the Honourable Supreme Court in SLP.No.16119 of 2012 dated 10.5.2012.
5. In view of the said submission, the learned Government Advocate (Forest) was directed to take notice for respondents 1 to 3, who on going through the said order submitted that the issue is covered by the said order of this Court.
6. The Government of Tamil Nadu issued G.O.Ms.No.259 dated 6.8.2003 introducing new Contributory Pension Scheme, which states that persons recruited on or after 1.4.2003 are not eligible to get old pension scheme. The said Government order cannot be applied to the petitioner as he was initially appointed on 1.9.1982 and he was in service in the department till 31.7.2011 without any break-in-service. The petitioner was paid daily rate wages from 1.9.1982 till 20.8.2005 and he was also promoted and regularized as Forest Watcher with effect from 24.8.2005 and retired on 31.7.2011.
7. Rule 11(2) of the Tamil Nadu Pension Rules, 1978 clearly states that for calculating qualifying service, half of the service paid from contingencies shall be allowed to be counted and that the petitioner is satisfying the conditions contained in Rule 11(2) as he was appointed on daily wage basis from 1.9.1982 till he was promoted and regularized on 24.8.2005. Rule 11(2) of the Tamil Nadu Pension Rules, 1978 reads as follows:
"11(2) Half of the service paid from contingencies shall be allowed to count towards qualifying service for pension along with regular service subject to the following conditions:
(i) Service paid from contingencies shall be in a job involving whole time employment and not part time for a portion of the day.
(ii) Service paid from contingencies shall be in a type of work or job for which regular posts could have been sanctioned, for example Chowkidar.
(iii) Service shall be for which the payment is made out on monthly or daily rates computed and paid on a monthly basis and which, though not analogous to the regular scale of pay, shall bear some relation in the matter of pay to those being paid for similar jobs being performed by staff in regular establishments.
(iv) Service paid from contingencies shall be continuous and followed by absorption in regular employment without a break.
(v) Subject to the above conditions being fulfilled, the weightage for past service paid from contingencies shall be limited to the period after the 1st January, 1961 for which authenticated records of service may be available.
(vi) Pension or revised pension admissible as the case shall be paid from the 23rd June 1988.
Half of the service rendered by State Government employee under non-pensionable establishment shall be allowed to be counted for pensionary benefits along with regular service under pensionable establishment subject to the following conditions.
(a) Service under non-pensionable establishment should have been in a job involving whole time employment.
(b) The service under non-pensionable establishment should have been on time scale of pay.
(c) The service under non-pensionable establishment should have been continuous and followed by absorption in pensionable establishment without a break."
8. Similar issue was considered by me in W.P.No.8205 of 2011 and by order dated 19.4.2011, half of the services of the petitioner therein as Plot Watcher from 1.1.1982 to 13.7.2004 was directed to be counted along with his regular service rendered as Forest Watcher from 14.7.2004 to 31.8.2009 as qualifying service to arrive at pensionable service. The said order was challenged in appeal by the State in W.A.No.27 of 2012 and the First Bench of this Court dismissed the writ appeal on 13.2.2012. SLP.No.16119 of 2012 filed by the Government of Tamil Nadu against the said judgment of the First Bench of this Court was dismissed by the Honourable Supreme Court on 10.5.2012.
9. At this juncture the learned counsel for the petitioner brought to my notice that the Government issued G.O(D)No.332 Environment and Forest Department dated 19.11.2008 in favour of one V.Murugan, Forest Guard, who retired on 30.9.2005, ordering to count 50% of his service from 1.9.1980 to 23.3.2003 for the purpose of sanction of pension to the said Murugan. The learned counsel for the petitioner also submits that the petitioner has not been paid any benefit under the new pension scheme and hence there will be no impediment to extend the benefits of old pension rules to the petitioner as it was given to the said V.Murugan.
10. Even in discretionary matters, if the persons are identically placed, same treatment shall be followed to all, is well settled. I had an occasion to consider the said issue in the decision reported in (2006) 2 MLJ 574 (N.S.Balasubramanian v. Food Corporation of India). The said decision was confirmed by the Division Bench of this Court in W.A.No.956 of 2006 dated 30.10.2006 and by the Supreme Court in S.L.P.(C)No.6771 of 2007 dated 23.4.2007.
11. Applying the said principle to the facts of this case, and in the light of the statutory provision contained in Rule 11(2) of the Tamil Nadu Pension Rules, 1978, and in view of the fact that the petitioner having been initially appointed on 1.9.1982 and continued to serve in the department without any break-in-service, and was paid salary on monthly basis and the petitioner having been absorbed in the regular service from 24.8.2005, and applying G.O(D)No.332, Environment and Forest Department dated 19.11.2008, granting similar benefit to a similarly placed forest watcher, I hold that the petitioner is entitled to get his 50% of the services from 1.9.1982 till the date of his regularisation on 20.8.2005, counted for the purpose of calculation of pensionable service.
12. In the result, the writ petition is allowed with a direction to the first respondent to count 50% of the service of the petitioner from 1.9.1982 till 20.8.2005 along with the regular service from 24.8.2005 till 31.7.2011 and pass necessary orders and the third respondent is directed to send the pension proposals to the fourth respondent within three months from the date of receipt of copy of this order. On receipt of the pension proposal from the third respondent, the fourth respondent is directed to sanction eligible pension and other benefits to the petitioner within two months therefrom. There is no order as to costs.
Index : Yes/No.
Internet : Yes/No. 14-6-2012
vjy
To
1. The Secretary to Government, Forest and Environment Department
Government of Tamil Nadu, Fort St.George, Chennai 600 009.
2. The Principal Chief Conservator of Forests
Panagal Building, Saidapet, Chennai 600 015
3. The District Forest Officer,
Tirupattur Forest Division &Joint Director of Aanaimalai Tiger Reserve Forest,
Udumalaipettai, Tirupathur District.
4. The Accountant General of T.Nadu
Office of the Accountant General Office at Teynampet
Chennai 600 018.
N. PAUL VASANTHAKUMAR, J.
vjy
W.P.No.14987 of 2012
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