HIGH COURT OF JUDICATURE AT MADRAS
Honourable Mrs Justice S.SRIMATHY
A.INDIRANI, – Appellant
Versus
STATE OF TAMILNADU – Respondent
WP(MD)/6696/2018

Regularization of daily wage employees - Eligibility for old pension scheme - Calculation of past service

Headnote:

PENSION - REGULARIZATION - OLD PENSION SCHEME - G.O.Ms.No.22, Finance (Pay Cell) Department, dated 28.02.2006 - G.O.Ms.No.74, Personnel and Administrative Reforms (F) Department, dated 27.06.2013 - G.O.Ms.No.408, Finance (Pay Cell) Department, dated 25.08.2009 - G.O.Ms.No.149 Health and Family Welfare (F2) Department dated 08.05.2007 - Petitioners were appointed in 1993 on daily wage basis and completed 10 years on 01.01.2006 - Petitioners are eligible for regularization/absorption - Petitioners are not entitled to regularization from the date of completion of 10 years - Regularization will come into effect from the date of issuance of regularization order - Petitioners are not entitled to calculate 50% of the daily wages employment/past service as they were regularized after 01.04.2003 - Writ petitions dismissed.

Fact of the Case:

The petitioners were appointed as daily wage employees in the hospital under the supervision of the 5th respondent on 12.02.1993. On 28.02.2006, the Department of Personnel and Administrative Reforms issued the G.O.Ms.No.22, for regularization of service of daily wage employees, who have completed 10 years of service as on 01.01.2006. Based on the aforesaid G.O., the Director of Department of Medical Education, sent a proposal to the Government through proceedings, dated 03.08.2006, to regularize nearly 383 employees. Based on some conditions, G.O.Ms.No.149 Health and Family Welfare (F2) Department dated 08.05.2007, came to be passed and the petitioner was regularized. However, the petitioner became eligible for regularization of service in the year 2003 itself i.e., after completion of 10 years. In the meantime the Government passed G.O.No.408, Finance (Pension) Department, dated 25.08.2009, with guidelines to get pension benefits under old pension scheme. In the said G.O., the employees who were in non-provincialised service, consolidated pay, honorarium and daily wages whose service have been absorbed prior to 01.04.2003 are eligible for old pension scheme. The petitioner was regularized in the year 2007. Hence, the petitioner submitted a representation, dated 17.02.2010, requesting to extend the benefit of old pension scheme. However, the same was rejected, vide letter, dated 11.03.2010.

Finding of the Court:

The petitioners are not entitled to regularization from the date of completion of 10 years - Regularization will come into effect from the date of issuance of regularization order - Petitioners are not entitled to calculate 50% of the daily wages employment/past service as they were regularized after 01.04.2003

Issues: Whether the petitioners are entitled to regularization from the date of completion of 10 years - Whether the regularization will come into effect from the date of issuance of regularization order - Whether the petitioners are entitled to calculate 50% of the daily wages employment/past service as they were regularized after 01.04.2003

Ratio Decidendi: The G.O.Ms.No.22, Finance (Pay Cell) Department, dated 28.02.2006, only states that it is the policy decision of the Government that whoever has completed 10 years on 01.01.2006, would be entitled for consideration to regularize the service. This does not mean that on the date of completion of 10 years, the petitioners are entitled to regularization. Therefore, the respondents are absolutely right in stating that the regularization will come into effect from the date of issuance of the regularization order and not prior to the said date. The petitioners have challenged G.O.Ms.No.408, Finance (Pay Cell) Department, dated 25.08.2009. Subsequently based on the G.O.Ms.No.408 the rules were amended in the Pension Rules under Rule 11(4). The validity of Rule 11(4) was challenged in subsequent writ petitions and the rule was upheld. When the rule is specifically stating if any person is regularized after 01.04.2003, he is not entitled to calculate 50% of the daily wages employment / the past service. The claim of the petitioners is that since they have completed 10 years in the year 2003 itself, the petitioners are entitled to grant regularization, consequently the petitioners are entitled to pensionary benefits. The said plea cannot be accepted, since the petitioners have come under the zone of consideration on completion of 10 years. On applying G.O.Ms.No.22, Finance (Pay Cell) Department, dated 28.02.2006, the Government has considered the service of the petitioners and subsequently issued an order to regularize the petitioners' service on 08.05.2007, through G.O.Ms.No.149 Health and Family Welfare (F2) Department dated 08.05.2007. The regularization will come into effect from the date of issuance of the G.O., and in the present case it is on 08.05.2007. The petitioners cannot claim over and above what has been stated in the G.O.Ms.No.149 Health and Family Welfare (F2) Department dated 08.05.2007.

Final Decision: Writ petitions dismissed.