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2022 DIGILAW 332 (MAD)

State of Tamil Nadu, Represented by its Principal Secretary to Government, Chennai v. N. Kottaichamy

2022-02-04

C.SARAVANAN, S.S.SUNDAR

body2022
ORDER : S.S. Sundar, J. (Common Prayer: Review Applications filed under section 114 read with Order 47 Rule 1 and 2 of CPC to review the order dated 02.03.2020 in WA.(MD).Nos.183/2020 and 185/2020 on the file of this Court.) 1. Respondents in WA.(MD).Nos.183 and 185 of 2020, filed writ petitions in WP.(MD).Nos.20966/2014 and 3113/2015 respectively. They filed the respective writ petitions with identical prayer for issuance of a Writ of Mandamus directing the respondents 1 and 3, namely, the appellants 1 and 3 in WA. (MD).Nos.183 and 185 of 2020, to send revised pension proposals to the Accountant General, Chennai, calculating half of the services put in by the petitioners as Karnam within a specific time frame. 2. The writ petitions were heard along with a batch of writ petitions and allowed by a common order dated 23.03.2018 on the ground that this Court has held in more than one occasion that 50% of the service put in by them even prior to 14.11.1980 must be taken into account for computing pensionary benefits. The writ petitioners were serving as Village Karnam till the posts were abolished on 14.11.1980. Subsequently, the writ petitioners were absorbed as Village Administrative Officers. Both the writ petitioners retired from service. Since the services put in by the petitioners as Karnam were not counted for pension, the writ petitions came to be filed. 3. Aggrieved by the common order dated 23.03.2018, in the batch of 19 writ petitions, the writ petitioners in the Review Applications filed WA.(MD).Nos.183 and 185 of 2020 as regards the writ petitioners in WP.(MD).No.20966/2014 and WP. (MD).No.3113/2015 on the only ground that the services rendered as Village Karnam till 14.11.1980 was on part time basis and hence, they are not entitled to count their past service for the purpose of pension. 4. In the Memorandum of Appeals, the appellants, namely, the Review Petitioners also relied upon the guidelines issued by the Government vide G.O.Ms.No.41, Finance [Pension] Department dated 09.02.2010 by which an amendment has been made to the Tamil Nadu Pension Rules, 1978, to state that only persons who have rendered services on Full Time basis in non-provincialised services are entitled to count 50% of their past service. 5. 5. This Court, by a common judgment dated 02.03.2020 dismissed the Writ Appeals in WA.(MD).Nos.183 and 185 of 2020 as the issue is settled by a catena of judgments rendered by this Court particularly, a judgment of the Division Bench in similar cases. 6. Referring to a judgment of the Full Bench of this Court dated 03.12.2019, in Government of Tamil Nadu Vs. R.Kaliyamurthy reported in 2019 [6] CTC 705. The above Review Applications are filed to review the judgment passed in WA. (MD).Nos.183 and 185 of 2020 dated 02.03.2020. 7. Learned Additional Advocate General, appearing for the appellants, in the course of arguments, relied upon a subsequent judgment of a Division Bench of this Court dated 26.02.2021 in a batch of Writ Appeals and batch, striking a different note. In similar situation, the appeals filed by the respondents in the writ petitions were allowed holding that the previous of judgments on the issue earlier without taking note of the relevant provisions may not be a binding precedent. It is to be noted that the learned counsel appearing for the writ petitioners cited around 35 judgments either in writ petitions or in writ appeals holding in favour of writ petitioners. Some of the judgments were given by the same Bench. 8. Be that as it may, the question arise before this Court is whether review of a judgment can be entertained on the basis of a subsequent decision in another case. 9. It is settled that a subsequent decision in another case or the subsequent reversal of a decision on the basis of which a judgment was given is not a ground for review under Order 47 Rule 1 of CPC. 10. It is also brought to our notice that the judgment of the Division Bench above referred to, has been challenged before the Hon'ble Supreme Court of India and the Special Leave Petitions in SLP.Nos.10506 to 10522 of 2021 are pending. It is also stated in paragraph No.2 of the order of the Division Bench that several judgments rendered, placing reliance upon the earlier decisions, attained finality with the dismissal of the Special Leave Petitions. It is also admitted before this Court that the order of this Court had been implemented in several cases. It is also stated in paragraph No.2 of the order of the Division Bench that several judgments rendered, placing reliance upon the earlier decisions, attained finality with the dismissal of the Special Leave Petitions. It is also admitted before this Court that the order of this Court had been implemented in several cases. It is to be noted that the Division Bench while interpreting Rule 11 of the Tamil Nadu Pension Rules, 1978, has observed that half of the services under a non-pensionable establishment can be reckoned, when the employment was on full time basis in a cadre post without any break prior to absorption carrying fixed time scale of pay. Therefore, the decision of the Division Bench is based on interpretation of Rules which was earlier interpreted by this Court in favour of employees. 11. The learned Additional Advocate General relied upon the judgment of the Full Bench in Kaliyamurthy's case [cited supra] reported in 2019 [b] CTC 705, wherein it has been held as follows:- “(i) Those who are freshly appointed on or after 01.04.2003 are not entitled to pension in view of proviso to Rule 2 of Tamil Nadu Pension Rules, 1978 inserted by G.O. Ms. No. 259 dated 06.08.2003. (ii) Those government servants/employees appointed prior to 01.04.2003 whether on temporary or permanent basis in terms of Rule 10 (a) (i) of Tamil Nadu State and Subordinate Service Rules will be entitled to get pension as per the Tamil Nadu Pension Rules, 1978. (iii) In case, a government employee/servant had also rendered service in non-provincialised service, or on consolidated pay or on honorarium or daily wage basis and if such services were regularised before 01.04.2003, half of such service rendered shall be counted for the purpose of conferment of pensionary benefits. (iv) Those government servants who were appointed in the aforesaid four categories before the cut off date and later appointed under Rule 10 (a) (i) of Tamil Nadu State and Subordinate Service Rules before 01.04.2003 and absorbed into regular service after 01.04.2003 will not be entitled to count half of their past service for the purpose of determination of qualifying service for pension. (v) Those government servants who were appointed in the aforesaid four categories before 01.04.2003 but were absorbed in regular service after 01.04.2003 will not be entitled to count half of their past service for the purpose of determination of qualifying service for pension." 12. Mr.S.Visvalingam, learned counsel appearing for the respondents submitted that the judgment of the Full Bench is in favour of the respondents. The Full Bench judgment was not brought to the notice of this Bench when we delivered the judgment. We do not want to discuss this aspect as we are of the view that review can be entertained only if there is error apparent on the face of the record. 13. It is settled that an error which strikes one on mere looking at record may be a ground for review. But, a decision based on several precedents which were holding the field cannot be reviewed. 14. For the above reasons, we are not inclined to entertain these Review Applications. Accordingly, the Review Applications are dismissed confirming the order passed in WP.(MD).Nos. 20966/2014 and 3113/2015. No costs. Consequently, connected miscellaneous petition is closed.