Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 2485 (MAD)

S. George v. Chief Conservator of Forest

2014-08-08

S.VAIDYANATHAN

body2014
Judgment : 1. The petitioner has filed this writ petition for the issuance of a Writ of Certiorarified Mandamus, calling for the records of the first respondent with reference to the order of the first respondent dated 12.1.2009 bearing Ref.No.Pen 39220/2008 and quash the same and direct the respondents to extend the benefits granted in G.O.Ms.No.23, Environment & Forests Department, dated 6.2.2007. 2. The case of the petitioner is that he joined the services of the first respondent as a Driver in Government Tea Project, Connoor, on 16.6.1968. After completion of 8 years of service with the first respondent, he was deputed to the second respondent-Corporation, which was formed in the year 1976. The petitioner was on deputation till 28.4.1983. Vide an order dated 31.5.1983, the petitioner was absorbed as a permanent employee in the second respondent-Corporation on 31.5.1983 and the petitioner attained superannuation on 30.5.2005. 3. It is the further case of the petitioner that he has rendered nearly 15 years of service on the date of absorption, but unfortunately, the period of his deputation from 16.6.1968 to 28.4.1983 was not considered as service for the purpose of pensionary benefits. The petitioner submitted that another employee by name R.Subbiah, who was also a Government Servant, absorbed in the second respondent-Corporation, was given the benefit of pension and the services rendered by him with the first respondent were also taken into account for pensionary benefits. 4. According to the learned counsel for the petitioner, the action of the second respondent would amount to discrimination as another employee by name R.Subbiah was given pension by relaxing Rule 43(3) of the Tamil Nadu Pension Rules, which is extracted below “(3) In calculating the length of qualifying service, fraction of a year equal to three months and above shall be treated a completed one half year and reckoned as qualifying service.” The Government has passed G.O.(Ms.)No.23 dated 6.2.2007 and granted pensionary benefits relaxing the Pension Rule 43(1). Since the petitioner is also similarly placed, he will also be entitled to the same relief. 5. The learned counsel for the second respondent submitted that TANTEA is a subsidiary of the Forest Department and the service conditions and the Rules are separate and that there is no pension and only retirement benefits are provided. He accepted that one R.Subbiah was given the pensionary benefits and he was employed in TANTEA. 5. The learned counsel for the second respondent submitted that TANTEA is a subsidiary of the Forest Department and the service conditions and the Rules are separate and that there is no pension and only retirement benefits are provided. He accepted that one R.Subbiah was given the pensionary benefits and he was employed in TANTEA. He further submitted that pensionary benefits was given based on the Government Order which was issued after the orders of the Court and that he had completed more than 10 years of service under the Government. According to him, since the petitioner has not rendered 10 years of service and he has rendered only 8 years of service under the Government, the first respondent was perfectly correct in depriving the benefit of pension to the petitioner. 6. The learned counsel for respondents drew the attention of this Court to Rule 48 of the Tamil Nadu State and Subordinate Service Rules, which is extracted below: “48. Notwithstanding anything contained in these rules or in the special rules, the Governor shall have power to deal with the case of any person or class of persons serving in a civil capacity under the Government of Tamil Nadu or of any person who has or of any class of persons who have served as aforesaid or any candidate or class of candidates for appointment to a service in such manner as may appear to him to be just and equitable: Provided that, where any such rule is applicable to the case of any person or class of persons, the case shall not be dealt with in any manner less favourable to him or them than that provided by that rule. According to him, as per the said Rule, the Government is entitled to relax the Rule to any Government employee and that as stated by him supra, since the petitioner has not completed 10 years of service and he has rendered only 8 years, he is not entitled to pensionary benefits. 7. In reply, Ms. P.T.Asha, learned counsel for the petitioner would submit that they cannot ignore the period of service of the petitioner between 1968 and 1976 as the services of the petitioner have been regularised by means of an order dated 31.5.1983 and the petitioner had completed more than 14 years of service from the date of regularisation. The petitioner was also allowed to retire on 30.5.2005. The petitioner was also allowed to retire on 30.5.2005. Once the petitioner is absorbed, the period of his service rendered under the Government from 1968 will always have to be taken into account. Since the petitioner had completed more than 10 years of service, depriving the benefit of pension to the petitioner on the ground that he had rendered only 8 years of service under the Government and ignoring the service rendered by the petitioner prior to absorption, cannot be accepted. Since the petitioner had rendered more than 10 years of service, depriving the benefit of pension on the ground that he had rendered only 8 years of service in the Government by ignoring the service rendered by the petitioner prior to his absorption into TANTEA, cannot be justified. Admittedly, as one R.Subbiah, a similarly placed employee was given the benefit of pension based on the Court order, the same benefit should also be extended to the petitioner also, without any discrimination. 8. After hearing Ms.P.T.Asha, learned counsel appearing for the petitioner and Mr.Hidayathullah Khan, learned counsel appearing for respondents, I am of the view that there cannot be any discrimination in respect of an employee who has rendered service of more than 10 years and absorption of the petitioner was made at the instance of the Government and depriving the benefit for the services rendered by the petitioner between 1968 and 1976, cannot be accepted at all. It is true that the Government has passed an order to one R.Subbiah who was employed in TANTEA who served for more than 10 years in the Government. Once an employee is absorbed under TANTEA, a Subsidiary of Forest Department, depriving the benefit of pension on the ground that the earlier service prior to absorption, got to be ignored, cannot have much force in the eye of law. 9. The Supreme Court in K.I.Shephard vs. Union of India { 1987 (4) SCC 431 } in para 19, held as follows:- “19. The writ petitions and the appeals must succeed. We set aside the impugned judgments of the Single Judge and Division Bench of the Kerala High Court and direct that each of the three transferee banks should take over the excluded employees on the same terms and conditions of employment under the respective banking companies prior to amalgamation. The writ petitions and the appeals must succeed. We set aside the impugned judgments of the Single Judge and Division Bench of the Kerala High Court and direct that each of the three transferee banks should take over the excluded employees on the same terms and conditions of employment under the respective banking companies prior to amalgamation. The employees would be entitled to the benefit of continuity of service for all purposes including salary and perks throughout the period. We leave it open to the transferee banks to take such action as they consider proper against these employees in accordance with law. Some of the excluded employees have not come to Court. There is no justification to penalise them for not having litigated. They too shall be entitled to the same benefits as the petitioners. Ordinarily the successful parties should have been entitled to costs but in view of the fact that they are going back to employment, we do not propose to make orders of costs against their employers. We hope and trust that the transferee banks would look at the matter with an open mind and would keep themselves alive to the human problem involved in it.” 10. The Supreme Court in an another decision in Govind Ram Purohit vs. Jagjiwan Chandra {1999 SCC (L&S) 788} in paragraph 3, held as follows:- “3. It was lastly contended by the learned counsel for the appellants that whereas the petition had been filed by only respondent-1, the High Court while finally concluding the matter has given a direction to promote all those who were senior to the appellants even though they were not parties to the petition. Once the High Court had placed a particular interpretation on the Rules, the benefit of that interpretation had to go to all those who qualified under the seniority-cum-merit rule. There was no point in waiting for each and every person to file a petition. Therefore, we do not see any reason why we should entertain such a technical plea when the High Court has done substantial justice to all concerned.” 11. Taking note of the totality of the circumstances, I find much force in the contention of the writ petitioner and hence the petitioner is entitled to pensionary benefits as prayed for in the writ petition by taking into account his services from 1968 till the date of superannuation. Taking note of the totality of the circumstances, I find much force in the contention of the writ petitioner and hence the petitioner is entitled to pensionary benefits as prayed for in the writ petition by taking into account his services from 1968 till the date of superannuation. The respondents are directed to extend the benefit of the pensionary benefits, within a period of 3 months from the date of receipt of a copy of this order. 12. The writ petition is allowed on the above terms and the impugned order is set aside. No costs.