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2012 DIGILAW 697 (MAD)

K. Kolandaivel v. Secretary to Government

2012-02-09

VINOD K.SHARMA

body2012
Judgment :- 1. The petitioner prays for issuance of a writ in the nature of Mandamus, directing the respondents to take into account the service, rendered by the petitioner as contingent employee with the Stationery and Printing Department from 14.02.1972 to 28.02.1978 and also his service on regular basis from 01.03.1978 to 28.01.1982 along with the service rendered with the School Education Department from 29.01.1982 to 30.06.2007. 2. The petitioner was appointed as contingent staff of non pensionable post as Carpenter, through District Employment Exchange, Salem. The petitiner joined the service as contingent staff on 14.02.1972. The petitioner was thereafter appointed as Junior Carpenter by the Local Selection Committee on regular basis on 20.05.1977 and was confirmed in service on 17.01.1981. 3. The petitioner thereafter applied through proper channel for appointment as Drawing Master in the School Education Department. On his selection, the petitioner tendered his resignation as Junior Carpenter, which is said to have been accepted on 28.01.1982. The date, i.e. 28.01.1982, shown in the affidavit is on account of typographical error, as admittedly the petitioner resignation was accepted on 16.08.1982. 4. The petitioner joined the Education Department immediately on being relieved and continued to worked till date of his superannuation. The petitioner therefore submits that he is entitled to the benefit of service rendered by him as contingent staff and on regular basis with the Stationery and Printing Department for the purposes of pensionary benefit. 5. In support of his contention, reliance is placed on the Government Instructions issued vide G.O.Ms.No.408 dated 25.08.2009, granting the benefit of non pensionable service on consolidated pay and the service rendered on daily wages with the contingent establishment. According to the instructions issued by the State Government, referred to above, decision was taken to grant benefit of service rendered on temporary and contingent basis in case of employee, who was absorbed in regular service after 01.01.1961, but prior to 01.04.2003. 6. Learned counsel appearing on behalf of the respondents did not contest the stand of the petitioner that the case is covered under G.O.Ms.No.408 dated 25.08.2009, but the objection is that the petitioner is not entitled to benefit of past service for pensionary benefit, as he had tendered resignation before joining the School Education department. 7. In support of the contention, reliance is placed on Rule 23 of Tamil Nadu Pension Rules, 1978, which reads as under: "23. 7. In support of the contention, reliance is placed on Rule 23 of Tamil Nadu Pension Rules, 1978, which reads as under: "23. Forfeiture of service on resignation:-(1) Resignation from a service or post entails forfeiture of past service: Provided that a resignation shall not entail forfeiture of past service it it has been submitted to take up with proper permission, another appointment, whether temporary or permanent, under the Government where service qualifies. (2) Interruption in service in a case falling under the proviso to sub-rule (1), due to the two appointments being at different stations, not exceeding the joining time permissible under the rules of transfer,s hall be covered by the grant of leave of any kind due to the Government servant on the date of relief or by formal condonation to the extent to which the period is not covered by leave due to the Government servant." 8. It is further contention of the learned counsel for the respondents that the petitioner is not entitled to discretionary relief under Article 226 of the Constitution of India, having not come to Court with clean hands, as he has mentioned the wrong date of joining with the School Education Department. 9. On consideration, I find that this petition deserves to succeed. There is no misstatement of facts, therefore, it cannot be said that the petitioner has not approached this Court with clean hands, as the error in mentioning the date of joining, is merely a typographical error, as to when he joined the education department. The date of joining is immaterial to decide the dispute, as it is not disputed that immediately on resignation, the petitioner joined the School Education Department. It may also be noticed that no counter has been filed, therefore, averments made in the affidavit are taken as correct. 10. The Rule 23 of Tamil Nadu Pension Rules, 1978, on which reliance has been placed to deny the benefit under the instructions, issued vide G.O.Ms.No.408 dated 25.08.2009, cannot be sustained in law. 11. The case of the petitioner is protected under proviso to Rule 23, as it is not disputed that the petitioner had resigned from service to join another department of the Government, after proper permission. The stand of the petitioner that he applied through proper channel, is also not disputed. 12. 11. The case of the petitioner is protected under proviso to Rule 23, as it is not disputed that the petitioner had resigned from service to join another department of the Government, after proper permission. The stand of the petitioner that he applied through proper channel, is also not disputed. 12. The stand of the respondents in denying the benefit of past service of the petitioner, therefore cannot be sustained in law. 13. Consequently, this writ petition is allowed. A writ in the nature of Mandamus is issued directing the respondents to count the past service of the petitioner on contingent and regular basis in the the Stationery and Printing Department, along with the service rendered in the School Education Department for the purposes of pensionary benefit. 14. The petitioner shall be entitled to the benefit of past service on regular basis along with the half the service rendered as contingent staff and the service rendered on daily wage basis. The needful be done within two months of receipt of certified copy of this order. No costs.