The Government of Tamil Nadu and Others vs J. Sivakumar and Others

S. Manikumar, J.—1. The instant appeal is filed against the order made in W.P.(MD). No. 16711 of 2013, dated 19.11.2013.

Before the writ court, the first respondent herein/petitioner therein has challenged the order passed by the 5th respondent, dated 05.10.2012, praying to quash the same and consequently to direct the 5th respondent to count 50% of service of the petitioner as part-time Panchayat Clerk from 01.02.1984 to 31.12.1990 and Panchayat Assistant from 01.01.1991 to 16.02.1995 for the purpose of pension and other retirement benefits.

After considering the Government Orders and submissions of the learned counsel appearing for the parties, Writ Court in W.P.(MD). No. 16711 of 2013, dated 19.11.2013, at paragraph Nos. 9 to 14, held as follows:

"9. Regarding the legal position that Statutory Rule cannot be overridden by a Government Order, Circular or Administrative Instruction, one cannot have any doubt. The Rule, of course, says that Whole Time employees alone will be taken into account. At the same time, one cannot lose sight of Article 14 of the Constitution of India which guarantees the fundamental right of equality and equal protection, before laws. In this case, though Rule 11(4) of the Tamil Nadu Pension Rules, 1978, states that only the services rendered as Whole Time employees shall be taken into account, quite contrary to the same, G.O.Ms. No. 39 dated 13.06.2011 was issued. The learned counsel for the fifth respondent would submit that in ignorance of G.O.Ms. No. 41 amending the Pension Rule, the Rural Development and Panchayat Raj Department had issued G.O.Ms. No. 39. Thus according to the learned counsel for the fifth respondent, G.O.Ms. No. 39 which was issued in ignorance of the Rule, cannot be given any weightage. In my considered opinion, it cannot be said that G.O.Ms. No. 39 came to be issued in ignorance of the Tamil Nadu Pension Rules, 1978 as it stood amended as per G.O.Ms. No. 41. It is well known that before issuing any Government Order involving any financial commitment, as per the procedure of the Government, the concurrence of the Finance Department, Law Department as well as the P & AR Department should be obtained. Here in this case, I have every reason to believe that before issuing G.O.Ms. No. 39, the Rural Development and Panchayat Raj Department would have obtained the concurrence of the Finance Department, Law Department as well as P & AR Department. G.O.Ms. No. 41, amending the Tamil Nadu Pension Rules, 1978, was after all issued by the Finance (Pension) Department. When that be so, certainly the Finance Department would have given the concurrence for issuance of G.O.Ms. No. 39 only by taking note of G.O.Ms. No. 41. Whatever be the case, G.O.Ms. No. 39 came to be issued and the fact remains that several persons got the benefit of G.O.Ms. No. 39 by taking 50% of the services rendered as Panchayat Clerk calculated for the purpose of pension.

At this juncture, it needs to be mentioned that several other persons who were not sanctioned pension having regard to 50% of the services rendered as Part-Time Panchayat Clerks, approached this Court in W.P. No. 22461 of 2008. There were 18 such persons as petitioners in the said writ petition. By order dated 21.02.2013, a learned single Judge of this Court, applying the above Government Orders, directed the Government to sanction the pension by taking into account 50% of the services rendered as Part-Time Panchayat Clerks. In paragraph-13 of the order, the learned single Judge has observed as follows:

"13. On consideration, I find that this writ petition deserves to succeed. The averments made in the writ petition go unrebutted. The specific stand of the petitioners is that Part-Time Panchayat Clerks or Full-Time Panchayat Clerks were performing the same duties, whereas nomenclature of Panchayat Clerks were given based on the income of Village Panchayat and population of the Village. If that is the case, the petitioners cannot be said to be Part-Time employees, not doing regular services, as it was merely a designation. It is for this reason, that the State Government issued G.O.(Rt) No. 39 of the Rural Development and Panchayat (E5) Department, dated 13.06.2011 for counting 50% of the services rendered as Part-Time Panchayat Clerks, for being added to the Government service for the purpose of pensionary benefits."

The above order of the learned single Judge has been implemented by the Government and those 18 persons have been benefited. The petitioner also stands in the same footing. When the Government had not challenged the order of the learned single Judge and when the Government has simply implemented the order to the benefit of those 18 employees, I do not understand as to why the Government should deny the same benefit to the petitioner who also stands in the same footing. The only explanation placed before this Court is that G.O.Ms. No. 41 amending the Tamil Nadu Pension Rules, 1978, was not brought to the notice of the learned single Judge. Had it been true, the Government would have very well sought for review of the order of the learned single Judge. But instead, the Government simply implemented the order of the learned single Judge.

Nextly, the learned counsel for the fifth respondent would rely on G.O.Ms. No. 77, dated 12.07.2013. This Government Order amends G.O.Ms. No. 39. But Clause 4(c) of the Government Order protects the benefits given to pensioners in accordance with G.O.Ms. No. 39. Thus, even now, the Government has not taken a decision not to count 50% of the services rendered by the Part-Time Panchayat Clerks for the purpose of pension. The Government, as it is seen from G.O.Ms. No. 77, has taken a policy decision not to disturb the benefit given to those persons, before coming into force of G.O.Ms. No. 77. The petitioner, in my considered opinion, is the beneficiary of G.O.Ms. No. 39 prior to G.O.Ms. No. 77. It cannot be said that the beneficiaries are those who were already sanctioned pension, and those whose names were under consideration are not entitled to the benefit. G.O.Ms. No. 39 has accrued a right to the petitioner. Simply because the claim of the petitioner was not promptly considered and whereas the claim of others were considered, the petitioner cannot be discriminated. In my considered view, the petitioner has got an accrued right on account of G.O.Ms. No. 39 and since the same is saved by Clause 4(c) of G.O.Ms. No. 77, the petitioner is also entitled for the 50% of the services rendered by him as Part-Time Panchayat Clerk, to be taken into account.

Regarding the contention of the learned counsel for the fifth respondent that neither G.O.Ms. No. 39 nor G.O.Ms. No. 77 can override the Statutory Rule, I have to say that at the same time, the Fundamental Right which is sacrosanct as guaranteed under Article 14 of the Constitution of India cannot be violated by a Statutory Rule. When the Government itself has taken a policy decision to extend the benefit of G.O.Ms. No. 39 to some persons, there cannot be any discrimination in respect of the petitioner alone. Therefore, in my considered opinion, in respect of those persons who retired prior to the issuance of G.O.Ms. No. 77, since right had accrued in them under G.O.Ms. No. 39, the services rendered by them as Part-Time Panchayat Clerks should be taken into account and 50% of the services should be counted for the purpose of pension. This is in tune with the equality clause of Article 14 of the Constitution of India. Such a course alone will avoid discrimination.

In view of all the above, the writ petition is allowed and the impugned order is set aside and the respondents are directed to count 50% of the services rendered by the petitioner as Part-Time Panchayat Clerk and the subsequent service rendered by him as Full-Time regular employee, for the purpose of pension, and grant pension accordingly, within a period of eight weeks from the date of receipt of a copy of this order."

Being aggrieved by the same, the instant writ appeal has been filed.

Mr. A.K. Baskara Pandian, learned Special Government Pleader fairly conceded that earlier, W.A.(MD). No. 763 of 2015, dated 30.10.2015, filed by the government on similar lines, has been decided, against the Rural Development and Panchayat Raj Department. He further submitted that the facts and law, considered and applied in W.A.(MD). No. 763 of 2015, dated 30.10.2015, squarely applies to the case on hand and that therefore, an appropriate order be passed in this case also. Decision in W.A.(MD). No. 763 of 2015, dated 30.10.2015 is reproduced hereunder:

"This writ appeal is directed against the order passed by the learned single Judge in WP(MD) No. 17543 of 2013, dated 18.09.2014.

Mr. A.K. Baskarapandian, learned Special Government Pleader submitted that the issue involved in this writ appeal has already been dealt with by this Court in WA(MD) No. 1028 of 2015, dated 30.09.2015.

Paragraphs 6 and 7 of the said order read as follows:

"6. The plea of the learned Special Government Pleader that after coming into effect G.O.Ms. No. 79, dated 12.07.2013, there is no question of granting benefit in relation to Part Time Panchayat Clerk. That contention has also been repelled by the learned Single Judge at paragraph 12 of the order by placing reliance on clause 4(c) of the Government Order stating that benefits given to the pensioners in accordance with G.O.Ms. No. 39, Rural Development and Panchayat Raj Department, dated 10.06.2011 need not be disturbed. The learned Single Judge further held that G.O.Ms. No. 39 has accrued a right to those employees who have retired when it was in force and that cannot be taken away because of delay in sanctioning or for administrative reasons. Therefore, there is no conflict between G.O.Ms. No. 39 dated 10.06.2011 and G.O.Ms. No. 77 dated 12.07.2013. We are inclined to accept the view of the learned single Judge that saving clause 4(c) of the Government Order in G.O.Ms. No. 77 shall apply in all force to the employees who have retired when G.O.Ms. No. 39 was in force and that is the tenor of the order passed by the learned single Judge.

In view of the above, we find no illegality or perversity in the order passed by the learned single Judge warranting interference by this Court. Hence, the writ appeal is dismissed. No costs. Consequently, M.P.(MD) No. 2 of 2015 is closed."

Following the said judgment, this writ appeal is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed."

We have also perused the judgment of the Honourable Division Bench of this court in W.A.(MD). No. 763 of 2015, dated 30.10.2015.

In the light of the decision of the Honourable Division Bench of this Court in W.A.(MD). No. 763 of 2015, dated 30.10.2015, we are not inclined to advert further. Hence, the present writ appeal is dismissed. Consequently, connected miscellaneous petition is also dismissed. No costs.