Point of Law: Half of 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

Judgment :-

(Prayer: Writ Appeals filed under Clause 15 of Letters Patent to set aside the orders, dated 05.02.2018, passed in W.P.(MD) Nos.500 & 501 of 2014, on the file of this Court.)

Common Judgment

T.S. Sivagnanam, J.

1. The appellants herein are the writ petitioners in W.P.(MD) Nos.500 & 501 of 2014, which were dismissed by the common order dated 05.02.2018.

2. The appellants prayed for setting aside the order passed by the second respondent dated 10.06.2013 and the consequential order, dated 16.12.2013 and to direct the respondents 1 to 4 to count the service rendered by the appellants from 05.04.1990 to 31.05.1994 and 07.03.1994 to 13.09.2001 respectively for fixation of pay, gratuity, leave pay, pensionary benefits and other benefits to them as per G.O.(ID) No.125, dated 13.04.2010.

3. The appellant in W.A.(MD) No.1382 of 2019, petitioner in W.P. (MD) No.501 of 2014, was appointed as Post Graduate Teacher in English in the fifth respondent School on 07.03.1994 in a vacancy caused due to the resignation of the existing incumbent. On 01.06.1994, the Government sanctioned grant-in-aid only to five posts and in respect of P.G.Assistant (English), grant-in-aid was not sanctioned. From 13.09.2001, the Government released grant-in-aid in respect of the remaining three posts and pursuant to which, the appointment of the appellant in W.A.(MD) No.1382 of 2019 was approved with effect from 13.09.2001. He relied upon two Government Orders in G.O.Ms.No.18, dated 09.01.1997 and G.O.Ms.No.143, dated 30.01.1987, wherein, the Government regularised the period during which, those Teachers were served when there was no grant-in-aid from the Government. However, the Government, by G.O.Ms.No.314, dated 12.12.1999, revoked G.O.Ms.No. 18, dated 09.01.1997 and held that the period prior to 01.06.1997 cannot be taken into consideration for fixation of pay or terminal benefits, but, it can be considered only for the purpose of promotion.

4. It is further submitted that Clauses 1 to 3 of the Government Order in G.O.Ms.No.314, dated 12.12.1999, were challenged before this Court in W.P.(MD) Nos.10758 and 10759 of 2008 and the said writ petitions were dismissed. However, the writ appeals filed against those orders in W.A.(MD) Nos.291 and 292 of 2008 were allowed by a common Judgment dated 26.06.2008 and the Clauses 1 to 3 of G.O.Ms.No.314, dated 12.12.1999, were struck down. Therefore, it is submitted that pursuant to the Judgment in the said writ appeals, G.O.Ms.No.18, dated 09.01.1997 became operational. The Special Leave Petition filed by the Government against the said Judgment before Honourable Supreme Court was dismissed and the orders were implemented by the Government vide G.O.(1D) No.125, dated 13.04.2010. The appellant in W.A.(MD) No.1382 of 2019 having come to know of the said Government Order, submitted a representation to the respondents, on 28.09.2011, requesting to extent the same benefits to him. Since there was no response to the said representation, he filed W.P.(MD) No.9819 of 2012, which was disposed of by order dated 19.07.2012 directing the first respondent to dispose the appellant's representation in accordance with law. However, the second respondent, by proceedings dated 16.12.2013, refused to count the services rendered by the appellant for the period from 07.03.1994 to 13.09.2001 for fixation of pay, revision of pay and gratuity, leave pay, pensionary benefits and other benefits, on the ground that G.O.No.143 is not applicable and that the Government is taking steps to cancel G.O.(1D) No.125, dated 13.04.2010 and further, since the appellant was appointed in a nonsanctioned post, the period cannot be counted for pay fixation and pensionary benefits. Aggrieved by the same, the appellant in W.A.(MD) No.1382 of 2019 has filed the writ petition.

5. The case of the appellant in W.A.(MD) No.1383 of 2019, petitioner in W.P.No.500 of 2014, is also identical, except that he was appointed as Post Graduate Teacher in the fifth respondent S