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2012 DIGILAW 1841 (MAD)

V. Ramachandran v. Additional Chief Secretary to

2012-04-10

K.N.BASHA

body2012
Judgment :- 1. The petitioner has come forward with this petition seeking for the relief of quashing the Government Letter No.623/E1.(2)/2008-9, Micro, Small and Medium Enterprises (E1.1) Department, Secretariat, Chennai-9 dated 13.05.2010 issued by the Additional Chief Secretary to Government, Micro, Small and Medium Enterprises (E1) Department, the first respondent herein and direct the respondents herein to count the services rendered from 15.11.1960 to 30.06.1996 as pensionable service in terms of Rule 9 and 23(g) of the TNSS Rules or in the alternative to count the service rendered from 15.11.1960 namely date of entry in Highways & Rural Works Department till 04.05.1976 namely the date of permanent absorption in TANSI for the purpose of pension as has been done in identical case and disburse all the arrears with effect from the date of its due as per above order within a short date. 2. The case of the petitioner is that he entered into the services of the Highways Department as Mechanical Supervisor on 15.11.1960 and worked till 26.03.1966. During the course of his service in the Highways Department, the Industries Department invited applications for appointment to the post of Inspector of Industries. The petitioner was called for the interview as per the interview call letter dated 08.12.1965. The petitioner attended the interview on 06.01.1966 and pursuant to the said interview, an order of appointment was passed on 22.02.1966 as per the proceedings of the Manager (Production), Madras State Small Industries Corporation Limited. In the said order itself a reference was made to the letter dated 19.02.1966 of the Director of Industries and Commerce, Madras. Among the candidates who have been appointed on the basis of the order dated 22.02.1966, the petitioner's name was found in Sl.No.3. The petitioner received the order dated 22.02.1966, posting him as Foreman (Engg.) Grade I and he joined in the TANSI on 30.03.1966 after giving resignation in the Highways Department on 27.03.1966. 3. As per G.O.Ms.No.575, Industries Department dated 04.05.1976, the Government absorbed 637 employees set out in Annexures A & B, to be permanently absorbed in TANSI and the name of the petitioner was found in Annexure -B to the said G.O under the heading Production Assistant as Sl.No.2. 3. As per G.O.Ms.No.575, Industries Department dated 04.05.1976, the Government absorbed 637 employees set out in Annexures A & B, to be permanently absorbed in TANSI and the name of the petitioner was found in Annexure -B to the said G.O under the heading Production Assistant as Sl.No.2. At the verge of retirement i.e., on 30.06.1996, the petitioner submitted a representation to grant pension for the services rendered in the Highways and the Industries Department till absorption in TANSI on 04.05.1976 i.e., from 15.11.1960 to 04.05.1976. However, the Government rejected the claim of the petitioner on the ground of delay of 30 years in making the claim, but not disputed the claim of the petitioner for pension. The petitioner challenged the said order by preferring O.A.No.8526/1997 before the Tamil Nadu Administrative Tribunal, which was transferred to this Court and renumbered as W.P.No.27631/2005. The said writ petition was allowed by this Court by the order dated 13.04.2006 holding the petitioner as Deputationist and directed the respondents to consider the claim of the petitioner for pension as has been done in other cases. The said order was challenged by the State by preferring a writ appeal in W.A.No.878/2007, which was disposed of by this Court with a direction to consider the representation of the petitioner within 3 months and upheld the order of the learned Single Judge. But the Government rejected the representation of the petitioner on the sole ground that the petitioner was appointed in TANSI even though the TANSI did not call for any application nor conducted any interview for the post of Foreman (Engineering) Grade I. Being aggrieved against the said order, the present writ petition is filed with the above said prayer. 4. Mr.K.Rajkumar, learned counsel appearing for the petitioner vehemently contended that the impugned order is liable to be set aside on the sole ground that the petitioner was called for interview only by the Industries Department and only on the basis of selection by the Industries Department, the appointment order was made by the TANSI, dated 22.02.1966. It is pointed out that even in the said appointment order, a reference was made to the letter dated 19.02.1966 of the Director of Industries and Commerce and the name of the petitioner was found in the said order under Sl.No.3, appointing him as Foreman (Engineering.) Grade -I in Wood Working Unit, Pollachi. It is pointed out that even in the said appointment order, a reference was made to the letter dated 19.02.1966 of the Director of Industries and Commerce and the name of the petitioner was found in the said order under Sl.No.3, appointing him as Foreman (Engineering.) Grade -I in Wood Working Unit, Pollachi. It is contended that even in G.O.Ms.No.575, Industries Department dated 04.05.1976, wherein the Government absorbed 637 employees of the Industries Department mentioning their names in Annexures A and B and the name of the petitioner was found in Annexure-B of the said Government Order under the heading Production Assistant as Sl.No.2. It is further contended that in W.P.No.27631/2005, the petitioner challenged the rejection of his claim for pension and this Court passed the order dated 13.04.2006 holding the petitioner as Deputationist and directed the respondents to consider the claim of the petitioner for pension and the said order was upheld by the Division Bench of this Court by the order dated 26.03.2009 in W.A.No.878/2007. Therefore, it is contended that the said orders of this Court holding the petitioner as deputationist, has already reached its finality and in view of the same, the respondents cannot now contend that the petitioner was appointed only by the TANSI and not deputed by the Industries Department and appointed by the TANSI, in view of the principles of res judicata as well as the principles of constructive res judicata. In support of such contention, the learned counsel for the petitioner placed reliance on the decision of the Hon'ble Apex Court in N.Nagabhushanav. State of Karnataka and Others reported in (2011) 3 SCC 408 . 5. The learned counsel for the petitioner also contended that the contention of the learned Special Government Pleader to the effect that the name of the petitioner was subsequently deleted as per the Government letter dated 17.09.1986 is unacceptable for the simple reason that a Government Order cannot be superseded and over-rided by a Government letter as the said letter cannot have a statutory force. In support of such contention, the learned counsel for the petitioner would place reliance on the decisions of this Court, namely, (1) K.Sampath v. State of T.N. reported in (2006) 4 MLJ 1027 and (2) S.Natarajan v. State of T.N. Reported in (2010) 4 MLJ 703 . In support of such contention, the learned counsel for the petitioner would place reliance on the decisions of this Court, namely, (1) K.Sampath v. State of T.N. reported in (2006) 4 MLJ 1027 and (2) S.Natarajan v. State of T.N. Reported in (2010) 4 MLJ 703 . Therefore, it is contended that the petitioner has made out a clear case of his entitlement to get the pensionary benefits for the service rendered by him in the Highways and Industries Department as he has been originally appointed in the said department and thereafter deputed, selected and appointed by the TANSI. 6. Per contra, Ms.V.M.Velumani, learned Special Government Pleader contended that there is no infirmity or illegality in the impugned order passed by the first respondent. It is contended that the petitioner has been deputed by the Industries Department and thereafter appointed by the TANSI and therefore, the petitioner cannot place reliance on G.O.Ms.No.575, Industries Department dated 04.05.1976 as the name of the petitioner included in the said Government Order in Annexure-B has been subsequently deleted as per the clarification letter of the Government dated 17.09.1986. Therefore, it is contended that the petitioner has not made out any ground warranting the interference of this Court in the impugned order. 7. Mr.S.Sathiamurthi, learned counsel appearing for the fourth respondent contended that the petitioner was appointed only by the TANSI by the order dated 22.02.1966 and as such, he cannot claim any pension in respect of the service said to have been rendered by him in the Industries Department. It is submitted that a detailed counter was also filed by the fourth respondent herein. It is further submitted that the petitioner has joined the services of the fourth respondent as fresh appointee with effect from 30.03.1966, after its formation as fourth respondent Corporation on 01.12.1965. It is further contended that the petitioner cannot claim that he was appointed by the Director of Industries and Commerce and subsequently, deputed to TANSI. It is also submitted that the services of the petitioner was regularized only by the fourth respondent Corporation since the Government has nothing to do with the regularization of the services of the petitioner. It is also contended that the service rendered in the TANSI is not a pensionable service and as such, the petitioner cannot claim any pension. It is also submitted that the services of the petitioner was regularized only by the fourth respondent Corporation since the Government has nothing to do with the regularization of the services of the petitioner. It is also contended that the service rendered in the TANSI is not a pensionable service and as such, the petitioner cannot claim any pension. It is pointed out by the learned counsel for the fourth respondent that the petitioner is entitled to seek the remedy only under the Employees' Provident Fund Scheme under the EPF Act. It is also submitted that the petitioner would come only under the EPF Scheme and he would not come under the Government Pension Scheme. It is submitted that the petitioner is eligible for pension under the EPF Scheme and he would be receiving pension under the said scheme. The learned counsel for the fourth respondent further pointed out that the petitioner has been paid with all terminal benefits for the service rendered by him in TANSI. Lastly, it is submitted that as per Service Register of the TANSI, the petitioner has been appointed only by the TANSI and he has not been deputed by the Industries Department to the TANSI. 8. Heard Mr.V.Murali, learned counsel appearing for the fifth respondent on the submissions made by both sides. 9. This Court carefully considered the rival contentions put forward by either side and thoroughly scrutinized the entire materials available on record and perused the impugned order. 10. The undisputed fact remains that the petitioner has rendered his service in the Highways Department as Mechanical Supervisor from 15.11.1960 to 26.03.1966. It is pertinent to note that the petitioner has received a call letter for interview from the Industries Department dated 08.12.1965 directing him to appear for interview for the post of Inspector of Industries in the Industries Department. It is seen that thereafter, an appointment order was passed under Order No.12336/66 MIC-ECI dated 22.02.1966 passed by the Manager Production, Madras State Small Industries Corporation Ltd., Madras-5. In the said order, the subject was mentioned as "Establishment-Madras State Small Industries Corporation Ltd.- Filing up the posts of Foreman (Engg.) Gr-I". It is seen that thereafter, an appointment order was passed under Order No.12336/66 MIC-ECI dated 22.02.1966 passed by the Manager Production, Madras State Small Industries Corporation Ltd., Madras-5. In the said order, the subject was mentioned as "Establishment-Madras State Small Industries Corporation Ltd.- Filing up the posts of Foreman (Engg.) Gr-I". It is also pertinent to note that in the very same appointment order, a reference was made to the letter dated 19.02.1966 of the Director of Industries and Commerce, Madras and the said order contains the appointment of 5 candidates and the name of the petitioner was found in Sl.No.3, appointing him as Foreman (Engg.) Gr.I in Wood Working Unit, Pollachi. The perusal of the said order dated 22.02.1966 makes it abundantly clear that the said appointment order passed by TANSI was routed through the selection of the candidates by calling the candidates for interview from the Industries Department. 11. The yet another important and vital piece of material available on record is the Government Order in G.O.Ms.No.575, Industries Department dated 04.05.1976 in respect of absorbing 637 employees set out in Annexures A and B for absorbing permanently in TANSI and the name of the petitioner was found in Annexure-B under the heading Production Assistant as Sl.No.2. In view of the said factor, the petitioner has rightly made a representation to the Government dated 15.06.1996 seeking for the relief of pensionary benefits for the services rendered by him in the Highways and Industries Department till his absorption in TANSI i.e., from 15.11.1960 to 04.05.1976. However, the said claim of the petitioner was rejected by the order dated 06.09.1996. The said order was challenged by the petitioner by preferring W.P.No.27631/2005. The learned counsel for the petitioner rightly placed reliance on the order passed by this Court in the said writ petition dated 13.04.2006, as this Court allowed the said writ petition holding the petitioner as Deputationist and directed the respondents to consider the claim of the petitioner as has been done in other cases. The learned counsel for the petitioner rightly placed reliance on the order passed by this Court in the said writ petition dated 13.04.2006, as this Court allowed the said writ petition holding the petitioner as Deputationist and directed the respondents to consider the claim of the petitioner as has been done in other cases. It is relevant to note that the said order was challenged by the Government by filing W.A.No.878/2007, but the said writ appeal was disposed of by the Division Bench of this Court by the order dated 26.03.2009, upholding the decision of the learned Single Judge of this Court in the writ petition and directed the respondents to consider the representation of the petitioner in the light of G.O.Ms.No.575, Industries Department dated 04.05.1976. 12. It is vehemently contended by the learned counsel for the petitioner that the said orders have already reached its finality. However, the learned Special Government Pleader took enormous pain to contend that though the name of the petitioner was included in Annexure-B to the G.O.Ms.No.575, Industries Department dated 04.05.1976, the name of the petitioner was subsequently deleted by the letter dated 17.09.1986 deleting the name of the petitioner contained in the Annexure to G.O.Ms.No.575. I am unable to countenance such contention for the simple reason that the letter of the Government cannot have a statutory force and the same cannot override the Government Order and the said position is made very clear by a catena of decisions of this Court. In K.Sampathv. State of T.N. reported in (2006) 4 MLJ 1027 , this Court has held as follows: "The reason stated in the impugned order stating that in view of the subsequent clarification issued by the Government by letter dated 04.10.2000 clarifying G.O.Ms.No.118 dated 14.02.1996, is totally illegal since the Government Order issued with the executive power of the Government in the name of the Governor cannot be clarified by a letter of the Secretary to the Government. Admittedly no amendment to G.O.Ms.No.118 dated 14.2.1996 is issued and therefore the Government Order will prevail over the subsequent Government letter. Admittedly no amendment to G.O.Ms.No.118 dated 14.2.1996 is issued and therefore the Government Order will prevail over the subsequent Government letter. In an unreported decision in W.P.No.1713 of 1988, this Court considered similar issue as to whether the Government letter will prevail over the Government Order or not and held that the Government Order having been authenticated and expressed to be taken in the name of the Governor, has the sanctity of an order issued under Article 166 of the Constitution of India and the Government letter issued subsequently cannot supercede the earlier Government Order. By virtue of issuance of G.O.Ms.No.118 Finance (Pension) Department, dated 14.20.1996, petitioner has got the right to count his 50% of service prior to his appointment from 1.1.2000 for pension. Under the Government Letter dated 4.10.2000, the said benefit is sought to be taken away. In view of the earlier finding that the Government letter cannot over-ride the Government Order, the petitioner is entitled to succeed. Even otherwise, on any ground if the Government letter is applicable, it can be applied only prospectively to the persons who have joined service after 04.10.200 in view of the decision of the Hon'ble Supreme Court reported in State of Haryana v. Shamsher Jang Bahadur 1973-II-LLJ-186." In yet another decision in S.Natarajanv. State of T.N. reported in (2010) 4 MLJ 703 , this Court has held as hereunder: "The Government Order issued in the name of the Governor cannot be nullified or modified and cannot be overridden by any subsequent clarification letter of the Government." The principles laid down in the decisions cited supra are squarely applicable to the facts of the instant case as in this case also, the respondents placed reliance only on the Government Letter dated 17.09.1986 and the said letter cannot over-ride or nullify the Government Order issued in the name of the Governor. 13. Apart from the said factor it is to be borne in mind of this Court that the said clarification letter itself was issued only on 17.09.1986 and whereas the Government Order in G.O.Ms.No.575, Industries Department was issued as early as on 04.05.1976 and such being the position, by no stretch of imagination, it could be contended that the Government Letter dated 17.09.1986 would nullify the Government Order in G.O.Ms.No.575, Industries Department dated 04.05.1976. 14. 14. It is also pertinent to note that before deleting the name of the petitioner from the Annexure to G.O.Ms.No.575, Industries Department dated 04.05.1976, the Government has not issued any notice to the petitioner by affording opportunity to put forward his objections. It is also curious to note that the perusal of the said Government letter dated 17.09.1986 does not disclose any reason for the deletion of the name of the petitioner. The learned counsel for the petitioner rightly placed reliance on the decision of the Hon'ble Apex Court in R.SulochanaDevi v. D.M.Sujatha and Others reported in 2004 (5) CTC 108 wherein the Hon'ble Apex Court has held as hereunder: "24. As rightly pointed out by Mr.T.L.V.Iyer that the opinion of the RJD dated 15.2.2000 is an opinion which is non est in law since no notice has been given to parties before passing such an order and, therefore, the subsequent order that was passed by the RJD dated 15.4.2002 after considering all the relevant documents. Mr.Iyer is also right in contending that the order dated 15.2.2000 is a nullity and, therefore, it can be ignored by the appellant and the question of filing a review by the appellant does not arise. When the order passed by an authority is not in accordance with law and no notice was communicated to the party it is a nullity and need not be challenged in a Court of law. (emphasis supplied) 25. We see merit in the submission of Mr.Iyer that an order made in violation of natural justice is void. Mr.T.L.V. Iyer in support of his above contention relied on the judgment of this Court in Krishnan Lal v. State of J & K, 1994 (4) SCC 422 , to the effect that an order passed in violation of the principles of natural justice renders an order invalid. Likewise, an order made without hearing the party affected is also bad in law. In the instant case, the order made in violation of natural justice is void." The principles laid down by the Hon'ble Apex Court in the decision cited supra are squarely applicable to the facts of the instant case, as in this case also, as already pointed out, the name of the petitioner was subsequently deleted, that too after a period of 10 years without assigning any valid reason and without issuing any notice to the petitioner. 15. 15. The yet another important feature in the instant case is that the claim of the petitioner to the effect that he has been deputed by the Industries Department to the TANSI as held by this Court in W.P.No.27631/2005 by the order dated 13.04.2006, which was upheld by the Division Bench of this Court by the order dated 26.03.2009 in W.A.No.878/2007 and the said order has already reached its finality and such being the position, the principles of res judicata or constructive res judicata is applicable to the facts of the instant case. Here again, the learned counsel for the petitioner rightly placed reliance on the decision of the Hon'ble Apex Court in M.Nagabhushanav. State of Karnataka and Others reported in (2011) 3 SCC 408 , wherein the Hon'ble Apex Court has held as hereunder: "12.The principles of res judicata are of universal application as they are based on two age-old principles, namely, interest reipublicae ut sit finis litium which means that it is in the interest of the State that there should be an end to litigation and the other principle is nemodebet bis vexari, si constat curiae quod sit pro una et eademn causa meaning thereby that no one ought to be vexed twice in a litigation if it appears to the court that it is for one and the same cause. This doctrine of res judicata is common to all civilised system of jurisprudence to the extent that a judgment after a proper trial by a court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest. 13. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of res judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of res judicata is not a technical doctrine but a fundamental principle which sustains the rule of law in ensuring finality in litigation. This may compel the weaker party to relinquish his right. The doctrine of res judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of res judicata is not a technical doctrine but a fundamental principle which sustains the rule of law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing court for agitating on issues which have become final between the parties." The principle laid down by the Hon'ble Apex Court in the decision cited supra is squarely applicable to the facts of the instant case, as already pointed out, the main crux of the question involved in this matter is to the effect that the petitioner has been deputed by the Industries Department and thereafter appointed by the TANSI and the said position was held by this Court in W.P.No.27631/2005 by the order dated 13.04.2006 as upheld by the Division Bench of this Court in W.A.No.878/2007 by the order dated 26.03.2009 and the same reached its finality. 16. In view of the aforesaid reasons, this Court has come to the irresistible conclusion that the impugned order is unsustainable in law. Accordingly, the writ petition is allowed and the impugned order passed by the first respondent dated 13.05.2010 in Government Letter No.623/E1.(2)/2008-9, Micro, Small and Medium Enterprises (E1.1) Department, Secretariat, Chennai-9 is hereby set aside. Consequently, the respondents have been directed to count the service rendered by the petitioner from 15.11.1960 to 04.05.1976 i.e., the date on which the petitioner has been absorbed in the TANSI on permanent basis, for the purpose of pension as has been done in other identical cases. It is made clear that the above said exercise shall be completed within a period of twelve (12) weeks from the date of receipt of a copy of this order. No costs.