மதுரை, தற்காலிகமாக பணியாற்றிய காலத்தையும் கணக்கில் எடுத்துக்கொண்டு அரசு போக்குவரத்துக்கழக டிரைவருக்கு ஓய்வூதியம் வழங்க வேண்டும் என்று மதுரை ஐகோர்ட்டு உத்தரவிட்டுள்ளது.
போக்குவரத்துக்கழக டிரைவர்
தூத்துக்குடி மாவட்டம் ஆழ்வார்திருநகரி வடக்குரத வீதியை சேர்ந்தவர் ஆறுமுகம். இவர், மதுரை ஐகோர்ட்டு கிளையில் தாக்கல் செய்த மனுவில் கூறி இருந்ததாவது:–
தமிழ்நாடு அரசு போக்குவரத்துக்கழகத்தில் 1979–ம் ஆண்டு டிரைவராக பணியில் சேர்ந்தேன். 1981–ம் ஆண்டு பணி நிரந்தரம் செய்யப்பட்டேன். 22.12.2003 அன்று ஓய்வு பெற வேண்டும். விருப்ப ஓய்வு கேட்டு முன்கூட்டியே விண்ணப்பம் கொடுத்தேன். அதன்படி 2001–ம் ஆண்டு ஜூலை மாதம் விருப்ப ஓய்வு அளிக்கப்பட்டது. ஓய்வூதியம் கேட்டு விண்ணப்பம் கொடுத்தேன். 20 ஆண்டுகள் பணி முடிக்காத காரணத்தினால் எனக்கு ஓய்வூதியம் வழங்கப்பட மாட்டாது என்று போக்குவரத்துக்கழக பொது மேலாளர் தெரிவித்தார். நான், 22 ஆண்டுகள் 3 மாதம் பணியாற்றி உள்ளேன். பணி நிரந்தரம் செய்யப்படுவதற்கு முன்பு உள்ள காலத்தை அதிகாரிகள் கணக்கில் எடுத்துக்கொள்ளவில்லை.
நியாயமற்றது
இதுதவிர நான் விடுமுறை எடுத்த நாட்களையும் கணக்கில் எடுத்துக்கொள்ளவில்லை. விருப்ப ஓய்வு பெற அனுமதித்து விட்டு 20 ஆண்டுகள் பணி முடிக்கவில்லை என்று கூறி ஓய்வூதியம் தர மறுப்பது நியாயமற்றது. விருப்ப ஓய்வு பெற அனுமதிக்கும் முன்பு, இதை தெரிவித்து இருந்தால் 20 ஆண்டுகள் பணி முடிவடையும் வரை வேலை பார்த்து இருப்பேன்.
எனவே, நான் பணி நிரந்தரம் செய்யப்படுவதற்கு முன்பு பணியாற்றிய காலத்தையும் கணக்கில் எடுத்துக்கொண்டு எனக்கு ஓய்வூதியம் வழங்க உத்தரவிட வேண்டும்.
இவ்வாறு மனுவில் கூறப்பட்டு இருந்தது.
ஓய்வூதியம்
இந்த மனு நீதிபதி மகாதேவன் முன்னிலையில் விசாரணைக்கு வந்தது. மனுதாரர் சார்பில் நெல்லை வக்கீல் வி.கண்ணன் ஆஜராகி வாதாடினார்.
மனுவை விசாரித்த நீதிபதி, மனுதாரர் பணி நிரந்தரம் செய்யப்படுவதற்கு முன்பு பணியாற்றிய காலத்தையும் கணக்கில் எடுத்துக்கொண்டு அவர், 20 ஆண்டுகள் பணி முடித்ததாக கருதி அவருக்கு கிடைக்க வேண்டிய ஓய்வூதியம் மற்றும் ஓய்வூதிய பலன்களை வழங்க வேண்டும் என்று உத்தரவிட்டார்.
DATED: 04.03.2014
CORAM
THE HONOURABLE Mr. JUSTICE T.RAJA
W.P.Nos.16231, 16267 and 30820 of 2008
M.Arumugam ... Petitioner in
W.P.No.16231/2008
M.S.Muthukumaraswami ... Petitioner in
W.P.No.16267/2008
K.A.Padmavathi ... Petitioner in
W.P.No.30820/2008
Vs.
1.The Secretary to Government,
Transport Department,
Secretariat, Chennai 600 009. .... Respondent
in all writ petitions
2.The Managing Director,
Metropolitan Transport Corporation,
Chennai 600 002. ... Respondent
in W.P.Nos.16267 & 30820/08
2.The Managing Director,
Tamil nadu State Transport Corporation
(Villupuram Division- I) Limited,
Villupuram 605 602. ... Respondent
in WP.No.16231/2008
PRAYER IN W.P.No.16231 OF 2008: Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus to call for the records of the first respondent relating to G.O.Ms.No.42, Transport Department, dated 27.05.2005, and to quash the condition in para 5(a) as to exclude the daily wages period in calculating the net qualifying service as illegal and consequently, to direct the respondents to take steps to sanction pension to the petitioner by counting the period of service from 16.10.71 to 31.03.1982 for payment of pension arrears from 01.01.1988, within a time frame.
PRAYER IN W.P.No.16267 OF 2008: Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus to call for the records of the first respondent relating to G.O.Ms.No.42, Transport Department, dated 27.05.2005, and to quash the condition in para 5(a) as to exclude the daily wages period in calculating the net qualifying service as illegal and consequently, to direct the respondents to take steps to sanction pension to the petitioner by counting the period of service from 31.12.1968 to 31.07.1970 for payment of pension arrears from 01.01.1988, within a time frame.
PRAYER IN W.P.No.30820 OF 2008: Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus to call for the records of the first respondent relating to G.O.Ms.No.42, Transport Department, dated 27.05.2005, and to quash the condition in para 5(a) as to exclude the daily wages period in calculating the net qualifying service as illegal and consequently, to direct the respondents to grant pension to the petitioner's husband from 01.01.1988 upto 10.06.1993 and family pension to the petitioner from 11.06.1993.
In All Writ Petitions
For Petitioner :Mr.C.Manohar
For R1 : Mr.R.Vijayakumar, AGP
For second respondent
in W.P.No.16231/08 : Mr.P.Paramasivadoss
in W.P.No.16267/08 : Mr.P.Kannankumar
in WP.No.30820/08 : Mr.G.Muniratnam
COMMON ORDER
The prayer in all the writ petitions is to quash the G.O.Ms.No.42, Transport (RW) Department, dated 27.05.2005, insofar as excluding the daily wages as pensionable service and consequently, to direct the respondents to sanction pension and pay arrears of pension from 01.01.1988.
2. For better appreciation, facts involved in W.P.No.16231 of 2008 are stated below:
The petitioner was appointed as Driver on 16.10.1971 in the erstwhile Tamil Nadu State Transport Department on daily wage basis. On formation of new Transport Corporation, i.e. Pallavan Transport Corporation on 01.01.1972, the petitioner, along with other employees of the Transport department, was sent on deputation basis with the newly formed Corporation. Subsequently, they were finally taken over by the Corporation with effect from 01.05.1975, after taking option for absorption from the employees. As per Rule 43(2) of the Tamil Nadu Pension Rules, the employee for being eligible for pension should render at least 10 years of service, therefore, the respondent granted pension to the employees, who had put in 10 years of service as on 01.05.1975.
3. By narrating the above said facts, learned counsel appearing for the petitioner submitted that the above said cut off date fixed by the Government, i.e. 01.05.1975 was challenged before the Hon'ble Apex Court. The Hon'ble Apex Court, in exercise of powers under Article 142 of the Constitution of India, in Civil Appeal No.8508/2003 with SLP(C) No.21676/2001, dated 29.10.2003, fixed the cut off dated as 01.04.1982 for the purpose of assessing requisite length of service. Only after the judgment of the Hon'ble Apex Court, the Government passed G.O.Ms.No.42, Transport (RW) Department, dated 27.05.2005, fixing the cut off date as 01.04.1982, however, it is further stated that the period of daily wage services, leave on loss of pay and suspension, should be excluded while arriving the net qualifying service. Therefore, it was contended by the learned counsel for the petitioner that the services rendered on daily wage basis, which is followed by the regular service, has to be counted for pension and thus, it was not open to the respondents to take away the right given under the Pension Rules by way of G.O.Ms.No.42, dated 27.05.2005. It is further contended by the learned counsel for the petitioner that the State Government, in exercise of powers under Article 309 of the Constitution of India, could not deny the benefit of service rendered on daily wage basis, especially when the pension rules do not stipulate any such condition.
4. Further, he contended that as per Rule 11(2) of the Tamil Nadu Pension Rules, 1978, 50% of the daily wage services is bound to be calculated as pensionable service and by citing so, he further stated that if half of the daily wage service is counted, the petitioners in all the writ petitions are entitled for pension, since they have admittedly possessed net qualifying service of 10 years.
5. In support of his submission, he has also relied upon a judgment of this Court in the case of S.Kamachi v. The Secretary to Government, Transport Department, Chennai and another ( passed in W.P.No.4071 of 2008, dated 11.09.2012), wherein, this Court directed the respondents to sanction pension by counting 50% of the daily wage service. With these submissions, he requested this Court to set aside the condition 5(a) of the G.O.Ms.No.42, dated 27.05.2005, on the ground that the same is arbitrary and thus violative of Article 14 of the Constitution of India.
6. Per contra, learned counsel appearing for the second respondent submitted that, as per Rule 43(2) of the Tamil Naud Pension Rules, one should have completed 10 years of net qualifying service in Government as on the date of his permanent absorption in the Transport Corporation to become eligible for pension, but, in the present cases, all the petitioners have not completed the said minimum requirement of 10 years of net qualifying service for eligibility of pension and hence, the petitioners are not entitled to the relief as prayed for.
7. Learned Additional Government Pleader appearing for the first respondent contended that since the Government in exercise of power under Article 309 of the Constitution of India, while passing G.O.Ms.No.42, dated 27.05.2005, stipulated that the daily wage services should not be counted for pensionary benefits, the petitioners cannot claim the benefit of pension in violation of the Rules.
8. Heard the learned counsel appearing on either side and perused the materials available on record.
9. It is not disputed by the counsel on either side that as per Rule 43(2) of the Tamil Nadu Pension Rules, the employee for being eligible for pension should render at least 10 years of service, therefore, the employees in the Transport Department, who had put in 10 years of service as on 01.05.1975 were granted pension. Whileso, the persons, who had put in less than 10 years of service as on 01.05.1975 in the Transport Corporation to count both the services rendered in the Transport Department and the Transport Corporation, formed after the erstwhile Transport Department was wound up, approached the Hon'ble Apex Court. The Hon'ble Apex Court, in C.A.No.494 of 2002, dated 29.10.2003, fixed the cut off date as 01.04.1982 for the purpose of adding the requisite period of service in the Transport Department with the service of the Transport Corporation to enable the employees to complete minimum 10 years of service. Whileso, the Government passed G.O.Ms.No.42, dated 27.05.2005, by stating that the employees of the erstwhile Tamil Nadu State Transport Department,who were absorbed in the Tamil Nadu Transport Corporation and retired before 01.01.1988 or after 01.01.1988 but before 01.09.1998, be paid pension if they had put in the qualifying service of 10 years as on 01.04.1982, however, directed to exclude the period of daily wage service, while arriving net qualifying service. At this juncture, when the petitioners made an application to count their daily wage services for the purpose of pensionary benefits, the same was turned down by the respondents. In these circumstances, it is but proper to note down the following undisputed facts of the present writ petitions on hand:
W.P.No.
Date of Appointment
Date of Absorption
Cut off date fixed by the Apex Court
No. of years service rendered under daily wage basis
50% of daily wage services
Regular Service till the cut off date fixed by the Apex Court
Total no. of years service till the cut off
16231/08 (M.Arumugam)
16.10.71
1173
1482
1.2 yrs
7 months
9.3 yrs.
10 yrs.
16267/08 (M.S.Muthukumaraswami
31.12.68
1870
1482
1.8 yrs
10 months
9.4 yrs.
10.2 yrs
30820/08 (KA.Padmavathi, W/o.Late R.Kannan
17.10.71
11172
1482
1 yr.
6 months
9.5 yrs.
10.1 yrs
As per the above undisputed facts, the petitioner in W.P.No.16231 of 2008 has put in 10 years of service as on 01.04.1982, the petitioner in W.P.No.16267 of 2008 has put in 10.2 years of service and the petitioner's husband in W.P.No.11354 has put in 10.1 years of service. Even according to the proceedings dated 19.04.2008 of the Selection Grade Assistant Manager of the Transport Corporation, the petitioner in W.P.No.16267 of 2008 has put in 9 years, 11 months and 21 days, without taking note of the daily wage service period. In respect of the petitioner in W.P.No.30820 of 2008, the Appellate Authority of the respondent Corporation, in his proceedings dated 08.09.2008, stated that the petitioner's husband has put in 9 years, 5 months of service, without taking into account the daily wage service rendered in the erstwhile transport department. With regard to this issue in not counting the half of service rendered in daily wage services, this Court in S.Kamachi's case (cited supra) directed the respondent to sanction pension to the petitioner therein by counting 50% of the daily wage service. In the said judgment, it was also further held that if fraction of the service is within three months, it should be treated as half year service. For better appreciation, paragraphs 9 to 11 and 13 thereof are extracted hereunder:
"9.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.
10.The net qualifying service, even according to the second respondent, comes to 9 years 4 months 8 days. By adding 50% of daily wage service of petitioner, which comes to 4 months, the petitioner is having more than 9 years 8 months and 8 days. Rule 43 (3) of the Tamil Nadu Pension Rule, 1978, clearly states that if fraction of the service is within three months, it should be treated as half year service. In this case, the petitioner's service is more than 9 years and 6 months. Therefore, the petitioner's service should be taken as more than 10 years.
11.The Division Bench of this Court in W.P.No.22833 of 2010 considered similar issue in respect of sanction of pension under Section 49(3) of the Central Civil Services (Pension) Rules and held that if a person is having more than 9 years and 6 months of pensionable service, the said period should be treated as 10 years of service for the purpose of sanction of pension. The Division Bench ultimately by order dated 10.11.2010 allowed the writ petition filed by the Central Government Servant.
13.Applying the Tamil Nadu Pension Rules, 1978 and also the Division Bench judgment referred above to the facts of the present case, the writ petition is disposed of giving direction to the first respondent to sanction pension to the petitioner treating him as a Transport Department driver from 01.01.1988 by counting 50% of the daily wage service i.e. from 28.01.1970 to 31.03.1982 along with regular service of 9 years 4 months and 8 days as on 31.03.1982. Necessary order is directed to be passed by the first respondent sanctioning the pension and arrears of pension within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, the connected miscellaneous petition is closed."
As stated above, if we apply the same yardstick to the cases on hand, the petitioners are eligible for the pensionary benefits, since they have admittedly possessed more than 10 years of service for pensionary benefits as indicated above in the tabular column. As stated by the Division Bench of this Court as observed in S.Kamachi's case (cited supra), if a person is having more than 9 years and 6 months of pensionable service, the said period should be treated as 10 years of service for the purpose of sanction of pension.
10.Further, the Government, vide G.O.Ms.No.42, Finance (Pension) Department, dated 09.02.2010, made the following amendment:
AMENDMENT
In the said Rules, in rule11, 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:-
(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-provincialised 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".
A mere reading of the above said amendment clearly depicts that half of the services rendered in daily wages 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. In the cases on hand, it is not in dispute that the petitioners had worked in the Transport Department till the formation of new Transport Corporation, i.e. Pallavan Transport Corporation on 01.01.1972 and subsequent to the formation, all the petitioners were absorbed with effect from 01.05.1975. Therefore, the above said amendment made by the Government, vide G.O.Ms.No.41, Finance (Pension) Department, dated 09.02.2010, is squarely applicable to the case of petitioners, as they were also admittedly retired before 1st April, 2003. Hence, the argument of the learned counsel for respondents to exclude the daily wage services of the petitioners is far from acceptance.
11. In fact, before this Court, when a similar Government Order in G.O.Ms.No.42, Transport (RW) Department, dated 27.05.2005, ordering exclusion of the period of daily wage service for the purpose of calculating pension was challenged, this Court, by order dated 20.07.2012, passed in W.P.No.24136 of 2011, declared the impugned part of G.O.Ms.No.42, Transport (RW) Department, dated 27.05.2005 denying the benefit of daily wage service for the purpose of pension as ultravires the Article 14 of the Constitution of India.
12. Hence, for the aforesaid reasons, the impugned part of G.O.Ms.No.42, Transport (RW) Department, dated 27.05.2005, denying the benefit of daily wage service for the purpose of pension is hereby quashed. Consequently, the respondents are directed to grant pension to the petitioners, by giving them the benefit of service rendered from the date of their initial appointment till the date of their absorption as stated in the tabular column mentioned above. The respondents are further directed to pay the pension arrears from 01.01.1988. The said exercise shall be completed by the respondents within a period of three months from the date of receipt of a copy of this order.
13. In fine, the writ petitions stand allowed to the extent mentioned above. No Costs. Consequently, all the connected petitions are closed.
04.03.2014
Index : Yes/no
Internet:Yes/no
rkm
To
1.The Secretary to Government,
Transport Department,
Secretariat, Chennai 600 009.
2.The Managing Director,
Metropolitan Transport Corporation,
Chennai 600 002. .
3.The Managing Director,
Tamil nadu State Transport Corporation
(Villupuram Division- I) Limited,
Villupuram 605 602.
T.RAJA,J.
Rkm
W.P.Nos.16231, 16267 and 30820 of 2008
04.03.2014
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