IMPORTANT POINT
Pension eligibility requires strict adherence to qualifying service calculations, excluding periods of leave on loss of pay as per the applicable pension rules.

JUDGMENT :

C. KUMARAPPAN, J.

Prayer: Writ Appeal filed under Clause 15 of Letters Patent praying to set aside the order dated 03.09.2020 passed in W.P. No. 10846 of 2013 and allow this writ appeal.

1. The appellants, who are the respondents before the Writ Court, assailed the order passed in W.P. No. 10846 of 2013 dated 03.09.2020 filed by the respondents in the present writ appeal. After the demise of the writ petitioner Narayanaswamy, his legal heirs were arrayed as petitioners 2 to 5 before the Writ Court and they are the respondents in the present Writ Appeal.

2. For the sake of convenience, the parties will be referred to according to their litigative status before the writ Court.

3. The short facts, which are necessary for adjudicating the instant writ appeal is that, the petitioner was appointed as a Driver on 25.10.1971 in the erstwhile State Transport Corporation. His service was regularized on 25.11.1972. Subsequently, on formation of various Transport Corporation, the petitioner was transferred and absorbed in the newly formed M/s. Pattukottai Azhagiri Transport Corporation on 01.05.1975. While so, in the year 1990, he opted to avail Voluntary Retirement Scheme implemented by the 2nd respondent. It appears that the petitioner has voluntarily retired on 31.08.1990.

4. It is the submission of the petitioner that by virtue of the Government Order in G.O.Ms. No. 42, Transport (RW) Department, dated 27.05.2005, he was put on net qualifying service of 10 years as on 01.04.1982. Accordingly, he prayed to sanction the Pension and payment of arrears of pension. The petitioner stated that he has completed 10 years 5 months and 7 days qualifying service between 25.10.1971 to 01.04.1982. In support of his contention, he would also rely upon Rule 11 (1), and Rule 43(2) of “The Tamil Nadu Pension Rules, 1978” [hereinafter shall be referred to as “Pension Rules”]. The petitioner further submits that similarly placed persons were already sanctioned pension and such order has been confirmed by the Hon'ble Supreme Court in SLP(CC) No. 1660 of 2012. Therefore, he being the similarly placed person, prayed to issue a writ of Mandamus directing the respondent-Corporation to pay the pension to him.

5. The respondents resisted the petitioner's contention and would submit that the net qualifying services of the petitioner was only 8 years 11 months and 22 days. Whereas, to avail the benefits under G.O.Ms.42 dated 27.05.2005, he should have 10 years of net qualifying service as on 01.04.1982. Since the petitioner did not have required net qualifying service, there is no scope for the respondent to invoke Rule 11(1) and 49(2)-A of Pensions Rules. Hence, prayed to dismiss the writ petition.

6. The Writ Court, after having considered the submissions on either side and on the basis of the documents submitted before the Writ Court has arrived at a conclusion that the petitioner has got qualifying service of 9 years 4 months and 6 days. Further, while calculating 50% service of the daily wages period, he has put on 6 months and 15 days. Thus, the petitioner has total net qualifying service of 9 years 10 months and 21 days. The Writ Court, by invoking Section 43(2) of the Pension Rules, held that the fraction of 10 months and 21 days should be reckoned as one year service, thereby held that the petitioner is eligible to be brought under G.O.Ms. No. 42 dated 27.05.2005. The Writ Court has also found that the case of the respondent regarding availing of leave on loss of pay by the petitioner cannot be believed, as it was not informed to the petitioner, and also on account of no departmental proceedings initiated against him. Thus, the Writ Court ultimately held that the petitioner is entitled for a pension as per G.O.Ms. No. 42 dated 27.05.2005.

7. The learned Additional Government Pleader for the first appellant would vehemently contend that the actual calculation made by the petitioner and the respondents are not in serious variance. However, the learned AG