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Judgment
Mrs. Prabha Sridevan, J.—The appellant is a poor woman, who has been knocking in vain on the doors of the Tamil Nadu Slum Clearance
Board asking for family pension, to which she is entitled, upon the death of her husband, on 5.1.88, while in service as ''watchman'' in the said
Board, The Tamil Nadu Slum Clearance Board was established under the Tamil Nadu Slum Areas Improvement and Clearance Act. Under
Sec.37 of the Act, the Board can prescribe the pay and other conditions of service of its employees:
Sec.44 reads as follows:
It shall be the duty of the Board to comply with such directions as the Government may from time to time issue either generally or in regard to any
particular matter.
In 1977, the Commissioner and Secretary to Government issued G.O.Ms. No. 51 dt. 14.1.1977, under which all provincialised work charged
employees of the various departments were brought to regular establishments and allowed certain, benefits. The relevant paragraph is extracted
hereunder:
5) (1) All provincialised work charged employees who are in the pay scales of Rs. 140-3-155-4-175-5-210 and above will be brought to regular
establishment and consequently be allowed the following additional benefits as admissible to the Non-gazetted Government Servants.
(a) Pension, Family Pension, Death-Cum-Retirement Gratuity as admissible under the Madras Liberalised rules.
(b) Accumulation of earned leave upto 180 days instead of 90 days medical and other unearned leave benefits as admissible under Tamil Nadu
Leave Rules.
(c) General Provident Fund in lieu of Contributory Provident Fund.
(d) Maternity Leave.
(ii) All provincialised work charged employees who are in the scale lower than Rs. 140-3-155-4-175-5-210 will be brought to regular
establishment and consequently be allowed the following additional benefits as applicable to the last grade servants of Government.
(a) Pension, Family Pension, Death-Cum Retirement Gratuity as admissible under the Madras liberalised Pension Rules.
(b) General Provident Fund in lieu of Contributory Provident Fund;
(c) Leave benefits as admissible under Tamil Nadu Leave Rules;
(d) On completion of 15 years of service they will become eligible for the leave benefits admissible to non-gazette government servants;
(e) Maternity Leave"".
Subsequently, on 27.5.1980, the Deputy Secretary to Government, Finance department issued a letter to all Secretaries to Government and all
heads of Department under letter No. 61986/PEN/80.I Finance (Pension) dt.27.5.90. In this letter, it is stated that the Government has ordered
with effect from 1.1.1977 that all provincialised work charged employees on that date and non-provincialised employee, who had completed five
years of continuous service should be brought to regular establishment. Reference was made to the Government order mentioned above. In para 3
of the said letter, it was stated as follows:
I, therefore, request you to kindly ensure that the orders bringing work charged personnel to regular establishment should invariably refer to
Finance Department''s memorandum No. 2278/ pension /77-1 dated 16.2.77 and that the benefits envisaged in it are allowed to other employees
without delay.
sd/- Deputy Secretary to Government.
Petitioner''s husband Thiru. K. Ethirajulu was working in Tamil Nadu Slum Clearance Board as a ''Watchman'' in Division-VI, Madras-5.
According to the petitioner, he was brought into the provincial establishment, with effect from 20.1.72, by order of the Executive Engineer
dt.24.2.1972. He was fixed in a time scale of pay at Rs. 250-5-530-10-4000. While in service he died on 5.1.1988 leaving the petitioner and her
son as his sole heirs. At that time he was earning a basic pay of Rs. 650/-. Since by virtue of G.O.Ms. No. 51 dt. 14.1.1977, she was entitled to
family pension, she made several representations to the respondent Board, but with no success. She therefore approached this Hon''ble Court
seeking writ of Mandamus to direct the Board to pay her family pension with effect from 5.1.1988.
To this, the Board filed their counter stating that the writ petitioner had been given a sum of Rs. 4,000/- as Gratuity and a sum of Rs. 20,000/-
under the Group Insurance Scheme and that the son had also been, employed on compassionate grounds. According to the Board, the petitioner
was not entitled to the family pension as per the Board''s circular dated 29.5.1990, which stated as follows:
As regards, the provincialised work charged personnel who were not brought to regular establishment, that is those who retired prior to
29.12.1980 without getting into regular establishment, as it is, they are not entitled to the pensionary benefits under pension rules, read with G.O.
Ms. No. 51, Finance and other follow up orders mentioned above, but such persons may be granted the gratuity admissible under Tamil Nadu
Retiring and invalid gratuities (Non-pensionable establishment) Rules 1941 including for the Non-provincialised service."" and since the petitioner''s
husband had died on 5.1.1988 without being brought to the regular establishment he was not eligible for pension.
The learned single Judge after hearing both the counsel held that the husband of the petitioner having opted for a non-pensionable job and
therefore, the petitioner is not entitled to any benefit under the pension scheme and dismissed the writ petition.
In the present appeal, in addition to the G.O. and the other Government proceedings referred to above, some other Government orders and
letters were also produced. They are Memo No. 22470/ pension / 77-1 dt.16.2.1977 issued by the Finance Pension Department. This letter
clarifies the G.O. dt.14.1.1977 referred to above, the relevant contracts are as follows:
i) The Work charged personnel who will be brought to regular establishment consequent on the issue of the G.O. cited will be eligible for
superannuation benefits as per the provisions of the Tamil Nadu Liberalised Pension Rules, the G.O. will apply to those who retire on or after
31.12.1976, 1.1.77.
It is evident from the records produced before us that the Tamil Nadu Slum Clearance Board had been dragging its feet with regard to
sanctioning pensionary benefits to its employees. This had resulted in a letter of the Deputy Secretary to Government Housing and Urban
Development Department dated 23.3.1990 issued to the Chairman of the Board. The relevant portion is extracted hereunder.
I am directed to state that in the Government order 1st cited it has been specifically stipulated that orders issued in G.O. Ms. No. 51 Finance
(F.R.II) dt.14.1.1977 should be adhered to Instructions issued in Government Memo No. 22478/Pen/77-I, Finance dt. 16.2.1977 and
Government letter No. 61986/Pen/80-1, Finance, dt.27.5.1980 only further instructions to G.O.Ms. No. 51, Finance (F.R.II) dt.14.1.1977.
Hence it is not clear why the Tamil Nadu Slum Clearance Board could not follow these rules which the Tamil Nadu Housing Board has been able
to follow and sanction pension etc., to the W.C.E. Personnel brought to regular service according to this rule. I am to state that the negligence on
the part of the Tamil Nadu Slum Clearance Board has only resulted in abnormal delay in the payment of pension/Family Pension to the W.C.E.
personnel/Families of W.C.E. personnel brought to regular service. I am therefore to request you to adopt the Government Memo No.
22478/pension/77-l. Finance dt.16.2.1977 and Government letter No. 61986/pension/80-l, Fmance dt.27.5.1980 in the Tamil Nadu Slum
Clearance Board without any further delay.
The Board had also framed certain rules to govern the conditions of service of its servants by G.O. Ms. No. 1750. Housing and Urban
Development dt.29.12.1988 called Tamil Nadu Slum Clearance Board Work-charged Establishment Service Rules. 1988, hereinafter referred to
as Rules, 1988, on perusal of these Rules, it is seen that this would apply to the servants of the Board of the provincialised, non-provincialised and
nominal muster roll under the Work-charged Establishment. Rule 3 refer to the constitution of the service listing the categories of post. Category 10
is watchman, Rule 8 refer to the ""scale of pay"" and the watchman, who is listed as category 10 is entitled to scale of pay 450-10-510-15-720.
Rule 10 refers to pension and it states clearly that the holders of the post mentioned in Rule 3 are entitled to pension and death-cum retirement
Gratuity, as per the Board Rules, 1980.
This is really an unfortunate case. The fact is that the petitioner has made several representations to the respondent asking for family pension.
Some of them have been filed in the typed set of papers. But for some reason, these representations did not bear any fruit, through the G.O.
dt.14.1.1977 in no uncertain terms directs that the work charged employees be brought to regular establishment entitling them to the various
benefits including inter alia family pension.
Again on 16.2.1977, the Government has issued a letter, which has been referred to above, which states that the work-charged personnel will
be brought to regular establishment on the issue of G.O. dt.14.1.1977. In 1980 the Deputy Secretary to Government, Urban Department directs
the Government and other Heads of Departments to ensure that the employees are given the benefits referred to in the G.Os.dt.14.1.1977 and
16.2.1977 and 27.5.1980. So, the petitioner''s husband, having been a provincialised work-charged employee, ought to have been brought under
the regular establishment as per the G.O. dt.14.1.1977. The letter dt.23.3.1990 referred to in para 8 above, clearly, demonstrates the
Governments, insistence that G.O. dt. 14.1.1977 and 16.2.1977 have to be strictly adhered to. It also shows that the Government in fact
reprimanded the Board for negligence in following the instruction. As early as 28.4.1980. The Government had stipulated that these instructions
regarding pension have to be followed.
It appears that the Board has delayed the sanctioning of pension or family pension as the case may be, to its personnel. The petitioner''s
husband had worked for 16 years and in the counter too, it is stated that orders were passed by the Board to provincialise his service. As per the
G.O. dt.14.1.1977, such employees should be brought to regular establishment. If the Board had not done so from 1977 to 1988 the year of
employed death for that the petitioner cannot be allowed to suffer.
The counsel for the appellant cited the decisions reported in 1955 LIC Page 718 (Supreme Court) which dealt with a Government servant,
who had put in service for 18 1/2 years. There was nothing on record to show that he was not made permanent Supreme Court held that this
amounted to very unfair treatment, it held.
It would be travesty of justice if the appellant is denied the pensionary benefits simply on the ground that he was not permanent employee of the
Government.
The counsel for the respondent apart from referring to the Board''s circular dt.29.5.1990, which refers to the cutoff date could really not
demonstrate why the petitioner is not entitled to family pension. The Government''s decision to give family pension to the provincialised work
charged employees had been communicated to the Board in 1977. This direction has been followed up by the subsequent G.O. and letters. By the
time he died. The petitioner''s husband had completed 16 years of service in the Board. In this background to fix 29.12.1988 as a cut off date for
eligibility of pension, family pension and other benefits merely because the rules were framed on that date is arbitrary Sec.44 of the Act. Under
which the Board came into being, declares that it is the duty of the Board to comply with the directions of the Government. The Government has
clearly directed the Board by the G.O. dt.14.1.1977 to allow the various benefits set out in the said G.O. to its employees. The petitioner''s
husband died 11 years thereafter. The board had no reason not to comply with these directions, and in fact cannot disregard the government''s
instructions, as per Sec.44 of the Act.
The respondent Board is, therefore, directed to process the application of the appellant to sanction the family pension due to her from
5.1.1988 without delay, as per the Rules. If any amount already paid to her has to be adjusted in the amount now payable to her as arrears of
family pension, the same may be adjusted. The Board is directed to continue to pay the appellant her family pension every month till her life time.
The writ Appeal is, therefore, allowed. No order as to costs.