The prayer in the writ petition is for a Writ of Certiorarified Mandamus, calling for the records on the file of the 4th respondent in connection with G.O.Ms.No.408 Finance (Pension) Department dated 25.08.2009, and quash the same to the extent of cut off date as 01.04.2003 fixed for claiming the Pensionary benefits and direct the respondents to pay the retirement and Pensionary benefits including the monthly pension from 31.10.2008.
2.Heard both sides.
3.Though the petitioner has come out with this writ Petition with the aforesaid prayer, today the learned counsel appearing for the petitioner would contend that the petitioner though had been appointed on 05.01.1979 at the respondent Corporation, he had subsequently been regularised only on 23.02.2006 and therefore he was denied pension by citing G.O.Ms.No.408 Finance (Pension) Department dated 25.08.2009, but the import of the said G.O. and its applicability since has been clarified in the judgment of this Court reported in (2014) 6 MLJ 316 in the matter of P.Chinniyan v. State of Tamil Nadu, and therefore, if a direction is issued to the third respondent to pass orders on the proposal forwarded by the second respondent dated 09.03.2009, considering the imports of the said judgment referred to supra within a time frame, the petitioner would be satisfied.
4.Heard the learned counsel appearing for the first respondent as well as the learned Additional Government Pleader appearing for the respondents 2 to 4 on the above submissions.
5.As has been rightly pointed out by the learned counsel appearing for the petitioner, the very applicability of the G.O. for persons like the petitioner had already been considered by this Court in the case of P.Chinniyan (supra), wherein at paragraphs 21 to 26, this Court has considered all the imports of the G.O. as well as the applicability of the G.O. for those who had entered into service prior to 01.04.2003 in detail. The relevant portion of the said judgment is reproduced hereunder:
?21. The difference between Rules 11(2) and 11(4) of the Tamil Nadu Pension Rules is that one should have been absorbed in regular service before 01.04.2003, for counting half of the service rendered on consolidated pay/honorarium/daily wages basis. The date 01.04.2003 is chosen, since a New Pension Scheme was introduced for persons who are recruited after 01.04.2003 into the Government service. The Tamil Nadu Pension Rules are not applicable to the employees who are recruited after 01.04.2003.
22(a). In my view, in any stretch of imagination, the absorption of the petitioner into service after 01.04.2003 cannot be equated with the persons who are freshly recruited after 01.04.2003 into the Government service. The persons, who are fresh recruits after 01.04.2003, are governed by New Pension Rules and the persons, who are absorbed after 01.04.2003, like the petitioner, are not extended the benefit of New Pension Scheme also.
25.It is a different matter if a person joined the service after 01.04.2003 on daily wages basis and he was absorbed thereafter. But in my view, the prescription of the cut off date as 01.04.2003 for absorption into regular service under Rule 11(4) of the Tamil Nadu Pension Rules, to count half of the service rendered prior to absorption has no rationale basis and the same is arbitrary and violative of
Article 14 of the Constitution. In fact Rule 11(4) of the Tamil Nadu Pension Rules is totally redundant, in view of Rule 11(2) of the Tamil Nadu Pension Rules. Rule 11(2) does not prescribe any cut off date as to absorption into regular service. The benefits given under Rule 11(2) cannot be deprived and taken away by Rule 11(4). Thus, the cut off date of absorption as 01.04.2003 prescribed in Rule 11(4) shall be ignored. Otherwise, it will lead to grave injustice.
26.The Government cannot deny the pensionary benefit to the petitioner by fixing the cut off date as 01.04.2003 for absorption thereby refusing to take into account half the service rendered before absorption for the purpose of pension. Admittedly, the petitioner has been in service on daily wages basis from 01.04.1967 till the date of his absorption as Mali on 20.10.2003, i.e., he served for more than 36 years before his absorption into regular service.?
6.Moreover, the second respondent also has forwarded the proposal of the petitioner, seeking pension and retirement benefits vide his proceedings in Na.Ka.No.115/T1/2009 dated 09.03.2009 to the third respondent. Therefore, in the circumstances, this Court is of the considered view that the request of the petitioner as has been forwarded by the second respondent to the third respondent as referred to above can be considered by taking into account the clarifications issued by this Court in the case of P.Chinniyan (cited supra) of course, de hors the import of the impugned G.O.
7.In the result, the Writ Petition is disposed of with the following directions:
(i) The third respondent is directed to consider the proposal forwarded by the second respondent vide his proceedings in Na.Ka.No.115/T1/2009 dated 09.03.2009.
(ii) While considering the said proposal, the third respondent must take into account the clarifications issued by way of order of this Court reported in (2014) 6 MLJ 316 in the matter of P.Chinniyan v. State of Tamil Nadu.
(iii) After considering the said proposal, of course, as directed above, without insisting upon the cut off date of 01.04.2003 indicated in G.O.Ms.No.408 Finance (Pension) Department dated 25.08.2009, the third respondent shall pass orders regarding the retirement and pensionary benefits within a period of three months from the date of receipt of a copy of this order.
No costs. Consequently, connected Miscellaneous Petition is closed.
To
1.Secretary of Government, Finance & Pension Department, State of Tamil Nadu, Secretariat, Chennai ? 9.
2.The Director, Local Fund Audit, 4th Floor, Kolannagar, Chennai ? 108.
3.The Deputy Director, Local Fund Audit, Thiruchirapalli Corporation, Trichy.
4.The Commissioner, Thiruchirapalli Corporation, Thiruchirapalli Corporation, Trichy..