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IN THE HIGH COURT OF MADRAS
R. Subbiah, P.T. Asha, C. Saravanan, JJ.
The Government of Tamil Nadu and Ors. - Appellants
Vs.
R. Kaliyamoorthy - Respondent
Writ Appeal Nos. 158 of 2016
Decided On : 03-12-2019
Constitution of India,1950 - Article 16 - Employees Provident Fund Act, 1952 - Rule 2 of Tamil Nadu Pension Rules, 1978 I - Payment of pension - Government Employment - Division Bench on noticing that there are two conflicting decisions rendered by the Division Benches of this Court - In one of judgments rendered by Division Bench of Madurai Bench of this Court it was that persons who were absorbed and/or regularised to service after were not entitled count half of past service rendered by them for the purpose of conferment of pensionary benefits along with service rendered by them after -Another Division Bench of Madurai Bench of this Court in its Judgment that such persons whose service came to be after were entitled and/or eligible to count half of the services rendered by them on daily wage basis prior to their regularisation for purpose of conferment of benefits –Held, State Government may not choose to file appeals against certain judgments of the High Court rendered in writ petitions when they are considered as stray cases and not worthwhile discretionary jurisdiction of this Court Article Constitution for seeking there for - At other times it is also possible for State not file appeals before this Court in some matters on account of improper advice or negligence or improper conduct of officers concerned - It is further possible that even where SLPs are filed by State against judgments of High Court such SLPs may not be entertained by this Court in exercise of its discretionary jurisdiction Article Constitution either because they are considered individual cases or because they are considered as cases not involving stakes which may adversely affect the interest of the State Court may not be challenged by State where financial repercussions are negligible or where appeal is barred by limitation - It may also not be challenged due to negligence or oversight of the dealing officers or on account of wrong legal advice or on account of non-comprehension of seriousness or magnitude of issue involved - However when similar matters subsequently crop up and magnitude of the financial implications is realised State is not prevented or barred from challenging subsequent decisions or resisting subsequent writ petitions even though judgment in a case involving similar issue was allowed to reach finality in case of other - Court would squarely apply to this case - Merely because this Court has passed multiple number of orders of some of similarly placed persons like writ petitioners it will not operate as it will preclude State Government from questioning those orders in parallel or similar proceedings - In such circumstances Court are of the view that orders hitherto passed by this Court both single Bench or Division Bench will not operate as bar for maintaining these writ appeals or writ petitions or those orders will not be considered as one which laid down any binding precedent to be followed in other cases - An order which was not passed in accordance with the statutory provisions need not be followed by Court at the instance of similarly placed persons – Order accordingly
JUDGMENT :
R. Subbiah, J.
1. This Full Bench was constituted by the Honourable The Chief Justice pursuant to the order dated 29.08.2018 passed by the Division Bench of this Court in W.A. No. 1218 of 2018 etc., batch to refer the below mentioned issue for an authoritative pronouncement:-
2. For the sake of clarity, we are paraphrasing the above reference as follows:-
3. G.O. Ms. No. 259, Finance (Pension) Department dated 06.08.2003 introduced a proviso to Rule 2 to the aforesaid Pension Rules, while G.O. Ms. No. 41, Finance (Pension) Department dated 08.02.2010 introduced sub-rule 11 (4) to the aforesaid Rules to which We shall be referring after giving a brief background which has led to the present reference.
4. Such a reference came to be made by the Division Bench on noticing that there are two conflicting decisions rendered by the Division Benches of this Court. In one of the judgments rendered by the Division Bench of the Madurai Bench of this Court in W.A. (MD) Nos. 587, 605, 606 and 1024 of 2014 on 03.12.2014, it was held that persons who were absorbed and/or regularised to service after 01.04.2003 were not entitled to count half of the past service rendered by them for the purpose of conferment of pensionary benefits along with the service rendered by them after regularisation. Another Division Bench of the Madurai Bench of this Court, in its Judgment dated 09.09.2015 in W.A. (MD) No. 760 of 2013 held that such persons, whose service came to be regularised after 01.04.2003 were entitled and/or eligible to count half of the services rendered by them on daily wage basis prior to their regularisation, for the purpose of conferment of pensionary benefits. Thus, this contrary view taken by two Division Bench of this Court has led to the present reference to this Full Bench.
5. For the sake of convenience, the daily wage employees covered in these batch of cases are referred to as "Writ Petitioners" and the State Government or instrumentalities of the Government, wherever they are arrayed in these batch of cases, can be referred to as 'respondents', collectively.
6. Before dealing with the various submissions made by the learned counsel on both sides, it is necessary to elucidate certain factual aspects. The factual scenario involved in these batch of cases has a chequered history to be narrated. In the State of Tamil Nadu, several persons came to be employed on daily wage basis in various Departments of the Government from the year 1980. Those daily wage employees joined the service under the staunch belief that their services will be eventually regularised by the Government in future and that they could be inducted into the permanent rolls of the Government. Some were fortunate to get their service regularised before 01.03.2003 while others could not get their services regularised till they attained the normal age of superannuation. For some others, even though they could get their service regularised, at the time of their regularisation, they had very little left in terms of period of service and therefore, after their retirement, from the cadre post, they could not get pension inasmuch as they did not
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