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2019 Supreme(Mad) 1045
IN THE HIGH COURT OF JUDICATURE AT MADRAS
K.K. SASIDHARAN, P.D. AUDIKESAVALU, JJ.
State of Tamil Nadu, Rep. by its Secretary, Rural Development Department, Secretariat, Chennai & Others - Appellants
Versus
D. Selvaraj - Respondent
W.A. No. 432 of 2019 & C.M.P. No. 3932 of 2019
Decided On : 01-04-2019
For the Appellants : A. Sri Jayanthi, Special Government Pleader
For the Respondent:S. Ramesh, Advocate
Headnote:
Constitution of India, 1950 - Article 14 - Tamil Nadu Pension Rules, 1978 - Rule 11(4) - Appointed as Rural Medical Officer - Scale of pay - Retired from service - Pension - Petitioner was initially appointed as Rural Medical Officer in Panchayat Union Dispensary at District borne out under Panchayat Union Establishment and was getting consolidated pay up - Government of Tamil Nadu in G.O. (Rt.) No. 16, Rural Development (E5) Department dated directed payment of salary to Rural Medical Officers in time scale of pay with effect from in terms of G.O. 737, Finance (Pay Cell) Department dated - Petitioner retired from service on attaining the age of superannuation - Petitioner filed W.P. No. to take note note of 50% of period of service of Petitioner as Rural Medical Officer till for purpose of granting pension Respondents for denying benefit under Rule 11(4) of Tamil Nadu Pension Rules, 1978, to Petitioner is that his employment as Rural Medical Officer prior to was on part time basis, which could not be reckoned in terms of clause (i) in that sub-rule which mandates whole time employment for purpose of computing period of qualifying service for eligibility for pension -Held, Court on earlier occasions found that such a classification cannot be sustained in eye of law - More so, to explain at cost of repetition, the very object of G.O. Ms. No. 408 dated is to given benefits to employees, who were working earlier on consolidated pay as well as daily rated wages - Therefore, 50% of service rendered by Respondent will have to be taken into account for calculation of pension – Court are in total agreement with findings rendered by the learned single Judge - Court referred supra and in absence of any materials placed before this Court to the contrary, it is not possible to accept self-serving claim of Respondents that services of Rural Medical Officers like Petitioner prior to were engaged on part time basis - Court must also point out here that the Honble Supreme Court of India in State of Uttar Pradesh -vs- Arvind Kumar Srivastava [(2015) 1 SCC 347] has reiterated that when a particular set of employees have been given relief by Court, all other identically situated employees should be treated alike by extending that benefit and not doing so would amount to discrimination and would be violative - Accordingly, Court dismiss Writ Appeal - Consequently, connected Miscellaneous Petition is closed.
P.D. Audikesavalu, J.
1. The intra-Court Appeal arises out of the order dated 03.10.2016 in W.P. No. 16682 of 2015 passed by the Learned Judge of this Court. The parties are hereinafter referred to as per their description in the Writ Petition for the sake of convenience.
2. The Petitioner was initially appointed as Rural Medical Officer on 28.05.1976 in Panchayat Union Dispensary at Thinayakudi, Pudukkottai District borne out under the Panchayat Union Establishment and was getting consolidated pay up to 30.09.1984. The Government of Tamil Nadu in G.O. (Rt.) No. 16, Rural Development (E5) Department dated 29.01.1998 directed the payment of salary to Rural Medical Officers in time scale of pay with effect from 01.10.1984 in terms of G.O. 737, Finance (Pay Cell) Department dated 11.07.1985. The Petitioner retired from service on attaining the age of superannuation on 31.01.2004. The Petitioner filed W.P. No. 16682 of 2015 to take note note of 50% of the period of service of the Petitioner as Rural Medical Officer till 01.10.1984 for the purpose of granting pension. The Learned Judge, who heard the Writ Petition, by order dated 03.10.2016, following the order dated 08.10.2012 in W.A. No. 1618 of 2012 passed by the Division Bench of this Court confirming the order dated 12.11.2011 in W.P. Nos. 53 to 56 of 2011, allowed that Writ Petition. Aggrieved thereby, the Respondents have preferred this appeal.
3. We have heard Mrs. A. Sri Jayanthi, Learned Special Government Pleader appearing on behalf of the Respondents, Mr. S. Ramesh, Learned Counsel for the Petitioner and perused the materials placed on record, apart from the pleadings of the parties.
4. The claim made by the Petitioner for the relief sought in the Writ Petition arises out of Rule 11(4) of the Tamil Nadu Pension Rules, 1978, which has been introduced by way of amendment by G.O. Ms. No. 41, Finance (Pension) Department dated 09.02.2010, and reads as follows:-
“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 basis 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 wage 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.”
5. The only reason attributed by the Respondents for denying the benefit under Rule 11(4) of the Tamil Nadu Pension Rules, 1978, to the Petitioner is that his employment as Rural Medical Officer prior to 01.10.1984 was on part time basis, which could not be reckoned in terms of clause (i) in that sub-rule which mandates whole time employment for the purpose of computing the period of qualifying service for eligibility for pension.
6. It requires to be noticed here that the Government of Tamil Nadu in G.O. (Rt.) No. 16, Rural Development (E5) Departmen
