R. Varadarajan vs Govt. of Tamil Nadu

K. Ravichandrabaabu, J.—The present writ petition is the transferred O.A. No. 7086 of 2001 filed on the file of the Tamil Nadu

Administrative Tribunal challenging the order of the second respondent dated 21.9.2001, and consequently seeking for a direction to the

respondents 1 and 2 to count half the period of service rendered by the petitioner under contingent establishment from 1.7.1966 to 25.4.1977 for

granting pensionary benefits and for the purpose of arriving at net qualifying service for pension and consequently for grant of revised pension from

1.8.1998 onwards. The case of the petitioner is that he was appointed as Mazdoor temporarily under the National Malaria Eradication

Programme, Attur on 29.1.1960 and thereafter he was appointed as Watchman-cum-Sweeper through proceedings dated 1.6.1968 by the

Supervisory unit officer, N.M.E.P, Tiruchengode. After serving as Watchman-cum Sweeper, the petitioner was appointed as peon (now

designated as Office Assistant) in the unit office, N.M.E.P, Tiruchengode by the proceedings dated 7.10.1976. Subsequently, on the closure of

N.M.E.P, the petitioner was ousted from service on 15.4.1977. Thereafter, the petitioner was absorbed as Last Grade Government Servant in the

Office of the Assistant Commissioner of Urban Land Tax, where he worked from 19.5.1977 to 30.06.1977. Subsequently, he was appointed as

Night Watchman in the Office of the Deputy Registrar of Co-operative Society with effect from 20.7.1977 and he served till 31.7.1998 and

retired from service on the said day. After his retirement, while calculating the pension payable to the petitioner, the authorities have taken only 21

years 1 month and 24 days as net qualifying service of the petitioner i.e. from 19.5.1977 to 31.7.1998 without taking into consideration the service

rendered by him prior to 25.4.1977. Thus, the grievance of the petitioner is his services from 1.7.1966 to 25.4.1977 in the N.M.E.P have to be

taken into consideration for computing the net qualifying service for pension. It is his case that the Government has passed G.Os permitting

regularisation of service of Basic Health Workers and Health Inspectors under N.M.E.P appointed on daily wage basis with effect from the date of

their initial appointment without monetary benefits so as to enable them to take into account such service for purpose of pensionary benefits. Thus,

the petitioner, claiming to be similarly situated person, seeks for the relief of counting at least 50% of his service rendered as a contingent employee

for the purpose of calculating the total period of service for pensionary benefits.

The respondent filed a counter and submitted therein as follows:-The petitioner was appointed as L.G.G.S and joined duty on 19.5.1977 in the

office of the Assistant Commissioner (Urban Land Tax), Salem and was ousted from service on 30.6.1977 for want of vacancy. Later, he was

appointed temporarily as night watchman on 20.7.1977. His services were regularised with effect from 3.1.1984. He was appointed as Office

Assistant by transfer and he joined duty in the said post on 22.1.1990 and retired on superannuation on 31.7.1998. The net qualifying service of

the petitioner is 21 years 1 month and 24 days being the period of service from 19.5.1977 to 31.7.1998. The contingent service has not been

taken into account for want of certificate to be recorded in the service register. The petitioner worked under contingencies in the Public Health

Department for the period from 4.2.1960 to 25.4.1977 and was ousted from the said service on 25.4.1977 for want of vacancy. After a break of

23 days he joined the service on 19.5.1977 and he continued in the service and retired thereafter as stated supra. Thus, the break of service

disqualifies him for counting half of the contingency service, in view of G.O.Ms. No. 437 Finance (Pension) dated 23.6.1988.

Mr. Ravi, learned counsel for the petitioner would submit that the first respondent Government issued G.O.Ms. No. 408 Finance (Pension)

Department dated 25.8.2009, wherein the service rendered as non-provincialised service, Consolidated pay, Honorarium, and Daily Wages were

taken into account for the purpose of counting the total number of service for calculating the pension of the employees. When those services are

taken into account for the purpose of counting the total number of service the petitioner cannot be denied the benefit. He further submitted that the

petitioner had continuously worked from 4.2.1960 to 15.4.1977 for the period of 17 years as admitted by the respondents in their counter affidavit

as a contingent employee in the Public Health Department. Such 17 years service cannot be simply left out without giving any benefit out of it. The

petitioner seeks only to count 50% of the said contingent service and therefore the artificial break of 23 days given by the Department cannot be

construed as denying the benefit of G.O.Ms. No. 408. Learned counsel also relied on Rule 24 of the Tamil Nadu Pension Rules in support of his

submission that the break, unless resulted through removal or dismissal from service, such interruption cannot stand in the way of counting the

service of the petitioner for the purpose of granting the pension.

Learned Government Advocate appearing for the respondents, supported the impugned order and contended that there was admittedly a break

of 23 days from 25.4.1977 to 19.5.1977 and therefore the petitioner having continuously worked in the contingent service before he was

absorbed in the regular service, the service rendered as a contingent employee cannot be taken into account for the purpose of counting the total

number of service.

Heard the learned counsel appearing for the petitioner and the respondents.

The only dispute in this case is as to whether the petitioner worked as contingent employee and if so whether he is entitled to get the period of

such service counted for the purpose of pensionary benefits?

The respondents in their counter have admitted that the petitioner was working under contingent service in the Public Health Department from

4.2.1960 to 25.4.1977. However, it is their case that the petitioner was ousted from service on 25.4.1977 and once again was taken into service

on 19.5.1977 after a break of 23 days. The said ousting also had taken place only for want of vacancy and not by way of any punishment.

Therefore, as rightly contended by the learned counsel for the petitioner, the said break in service cannot be put against the petitioner to deny the

benefit.

At this juncture, it is useful to refer to Rule 24 of the Tamil Nadu Pension Rules and it is extracted hereunder:--

Effect on interruption in service:--

(1) The interruptions in service shall not entail forfeiture of past service except when a person was removed and re-employed. The actual

interruptions in service shall not, however, count for pension.

(2) The services rendered in temporary or permanent department or in substantive office shall also count for pension even if any interruptions

exist."" A perusal of the said Rule would show that except when a person was removed and re-employed the actual interruptions in service shall not

stand in the way of counting the total number of service. In other words, the service rendered with such interruption would also be taken into

account for pension. The word ""removed"" used under Rule 24 makes it clear that such removal must be in pursuant to an order of punishment. In

any event, the petitioner was admittedly ousted from service for want of vacancy. In my considered view, such ousting for want of vacancy cannot

deny the benefit of counting the past service of the petitioner as found under Rule 24 of the said Rules.

More over, the first respondent themselves passed G.O.Ms. No. 408 Finance (Pension) Department dated 25.8.2009 wherein at paragraph

Nos. 2 and 3 it is stated as follows:

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A perusal of the said G.O. would show that the petitioner is also entitled to get the very same benefit as has been provided under the above

said G.O. in view of the fact that the petitioner had admittedly rendered 17 years of service as contingent employee. In my considered view, such

long period of service, though rendered as a contingency service, cannot be left out without granting any benefit out of it to the petitioner. More

over, the petitioner seeks only to count 50% of the said service for the purpose of granting pensionary benefits. It is further to be seen that the

impugned order rejecting the petitioner''s request was made only on the reason that the contingency service rendered by the petitioner from

1.7.1966 to 25.4.1977 cannot be taken into account. The said order does not refer about any break in service and such break in service as the

reason for rejecting the request. In any event, as I am of the view that the Government themselves have come forward with passing a G.O. as

stated supra, the petitioner should also be given same benefit. I find no reason to differentiate the petitioner from the employees referred to therein

in the said G.O. Accordingly, the writ petition is allowed and the impugned order is set aside and the respondents are directed to consider the case

of the petitioner for counting the contingent service rendered by him in the light of the G.O.Ms. No. 408 Finance (Pension) Department dated

25.8.2009. The Principal Accountant General, the 3rd respondent herein shall pass appropriate orders within a period of twelve weeks from the

date of receipt of copy of this order. No. costs.

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