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2012 Supreme(Mad) 3150
High Court of Judicature at Madras
VINOD K. SHARMA
M. Brindavanam
Versus
The Secretary To Government Transport Department & Another
W.P.No.24136 of 2011 & M.P.No.1 of 2011
Decided on : 20-07-2012
For the Petitioner:C. Manohar, Advocate.
For the Respondents: R1 R. Vijayakhumar, Addl. Govt. Pleader, R2 - V.R. Kamalanathan, Addl. Govt. Pleader.
The main legal point established in the judgment is that the exclusion of daily wage service for pension eligibility and the arbitrary denial of such service for counting the qualifying service for pension violated Article 14 of the Constitution of India.
Headnote:
Pension - Tamil Nadu State Transport Department - Rule 43(2) of the Tamil Nadu Pension Rules - G.O.Ms.No.42-Transport (RW) Department dated 27.05.2005 - Article 14 of the Constitution of India
Fact of the Case:
The petitioner sought to quash the part of an order that excluded the period of daily wage service for the purpose of pension. The petitioner was appointed on a daily wage basis and later regularized. The government issued an order fixing a cut-off date for assessing qualifying service for pension, leading to the exclusion of the petitioner's service for pension eligibility.
Finding of the Court:
The court found that the exclusion of daily wage service for pension eligibility was arbitrary and violated Article 14 of the Constitution of India. The court held that the petitioner should be granted pension by considering the daily wage service for the purpose of pension, minus the period spent on leave without pay.
Issues: The issues involved the exclusion of daily wage service for pension eligibility, the validity of the cut-off date for assessing qualifying service, and the constitutionality of the government order.
Ratio Decidendi: The court held that the exclusion of daily wage service for pension eligibility was arbitrary and violated Article 14 of the Constitution of India. The court also emphasized that the government order fixing the cut-off date for assessing qualifying service could not deny the benefit of daily wage service for counting the qualifying service for pension.
Final Decision: The court declared the part of the government order denying the benefit of daily wage service for the purpose of pension as ultra vires the Article 14 of the Constitution of India. The court directed the respondents to grant pension to the petitioner by considering the daily wage service for the purpose of pension, minus the period spent on leave without pay.
1. The petitioner has approached this Court with a prayer for issuance of a writ in the nature of Certiorari, to quash the impugned part of the order 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 pension.
2. The impugned part of order reads as under:
"5. The Government after re-examination of the whole issue have decided to implement the orders of the Supreme Court of India, referred in the judgement seventh read above and accordingly issue the following orders:-
The Government fix the cut off date as 1.4.1982 in respect of the erstwhile Tamil Nadu Transport Department employees who had put in less than 10 years of government service as on their permanent absorption in State Transport Undertakings, only for the limited purpose of assessing the requisite length of qualifying service of 10 years to earn pension. The eligible erstwhile Tamil Nadu State Transport Department employees whoever have retired shall get the arrears of pension only from 01.01.1988 which date is fixed with reference to the year of filing the first writ petition. The fixation of pension and payment of arrears shall be done accordingly as ordered by the Hon'ble Supreme Court of India as per the rules and Government Orders applicable to them in the following manner:
a) The erstwhile Tamil Nadu State Transport Department employees who were absorbed in Tamil Nadu State Transport Corporations and retired before 1.1.1988 or after 1.1.1988 but before 1.9.1998 be paid pension if they had put in the qualifying service of 10 years as on 1.4.1982. Period of Daily paid services, leave on loss of pay and suspension treated as specific punishment should be excluded while arriving the net qualifying service."
3. The petitioner was selected by due process for appointment as Painter with the Tamil Nadu State Transport Department on 08.06.1963. Though the petitioner was selected through due process of law, but was appointed on daily wage basis. The service of the petitioner was regularized on 01.05.1968.
4. 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 with the newly formed Corporation.
5. The service of persons sent on deputation from transport department were finally taken over by the Corporation with effect from 01.05.1975 after taking option from the employees. The services of petitioner from 08.06.1963 till 30.04.1975 was taken to be the service rendered with the transport department. This absorption of the employees was in pursuance to the statutory agreement under Section 18(i) of the Industrial Dispute Act, 1947. The Government granted terminal benefit to erstwhile Government employees, who were permanently absorbed in the State Transport undertaking.
6. As per the rule 43(2) of the Tamil Nadu Pension Rules, the employee for being eligible for pension should render at least 10 years service, therefore, the employees in the transport department, who had put in 10 years of service as on 01.05.1975 were granted pension.
7. The persons, who had not put in less than 10 years of service as on 01.05.1975, filed writ petition in the High Court of Madras for sanction of pension, by reckoning the service rendered by them in transport Corporation beyond 01.05.1975 for the purpose of arriving at qualifying service of 10 years to earn pension.
8. The validity of cut off date came up for consideration before this Court and the matter was finally taken to the Hon'ble Supreme Court. In exercise of powers under Article 142 of the Constitution of India, the Hon'ble Supreme Court vide its judgment dated 29.10.2003, fixed the cut off date as 01.04.1982 for the purpose of assessing requisite length of service.
9. It was also directed, that all employees will be entitled to arrears of pension only from 01.01.1988, i.e. the date when the first wri
