A writ appeal filed by the Government challenging a Single Judge order that granted a family pension to a widow. The Court held that the government failed to regularize the husband's services in the manner known to law, dismissing the appeal and sustaining the lower court's decision.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
In the High Court of Judicature at Madras
Dated: 21.09.2015
Coram:
The Hon'ble Mr.Justice S.MANIKUMAR and The Hon'ble Mr.Justice M.VENUGOPAL W.A.No.1290 of 2015 and M.P.No.1 of 2015
1.The Government of Tamil Nadu rep. by Secretary to Government, Public Works and Highways Department, Fort St. George, Chennai-9. 2.The Chief Engineer, Highways Department, (Construction & Maintenance) Chepauk, Chennai-5. 3.The Divisional Engineer, Highways Department, (Construction & Maintenance), Mahalakshmi Nagar, Nagapattinam, Nagapattinam District. .. Appellants/Respondent Vs.
1.P.Achiammal 2.The Principal Accountant General (A & E), Tamil Nadu, No.261, Anna Salai, Chennai-18. .. Respondents 1&2/Petitioner/ Respondent.
Prayer: Writ Appeal filed under Clause 15 of the Letters Patent, against the order dated 09.02.2015 and made in W.P.No.27924 of 2014. This writ petition filed U/A 226 of the constitution of India praying for a writ of certiorarified mandamus calling for the recovers relating to the proceedings of the 2nd respondent in No.430/Nir1/1La.Ma.Pa./2014 dated 28/05/2014, quash the same and consequently divert the respondents to workout the pension admissible to the petitioner's husband Ponnudurai from 06/11/1970 for his service of over 18 years and pay the petitioner family pension as admissible under the madras liberalized pension rules from 01/04/1979onwards with due arrears based on the orders of the TamilNadu Administrative Tribunal's order passed in T.A.No.1469/89 Batch dated 07/11/1991 and G.O.Ms.550, PWD dated 31/03/1993 (for counting Non-Provincialised services for pension)subject to reduction of Ex-Gratia pension hither to being paid by the learned Judge of this Court.
For Appellants : Mr.I.Arokiasamy Government Advocate
For Respondent-1 : Mr.V.Srinivasan for M/s.B.Venugopal
J U D G E M E N T
[Judgment of the Court was made by M.VENUGOPAL, J.]
The Appellants/Respondents have projected the instant intra Court Writ Appeal as against the order dated 09.02.2015 in W.P.No.27924 of 2014 passed by the Learned Single Judge.
2.The learned Single Judge while passing the order in W.P.No.27924 of 2014 on 09.02.2015 (filed by the First Respondent/Writ Petitioner) at paragraph 6 had inter-alia observed the following:
“The question regarding counting the services rendered by the members of non provincialised Road Inspectors working in Public Works Department/Highways Department, for the purpose of pension, was considered by the Tamil Nadu Administrative Tribunal in T.A.No.1469 of 1989. The Tribunal passed an order dated 7 November 1991 to the effect that employees are entitled to count their services rendered under non provisionalised work charged establishment for the purpose of pension. The petitioner's husband is similarly situated. However, his case was not considered in the light of the said order solely on the ground that his services were not regularised. The counter affidavit filed by the fourth respondent very clearly shows that husband of the Petitioner worked for a period of about 18 years. He is therefore eligible for regularization. The fact that the respondents have not taken any action to regularize his services prior to his retirement or provincialising his services should not cause prejudice to the widow of the deceased employee. In case, the services of Thiru.Annadurai were regularized before his retirement, naturally, the petitioner would be entitled for family pension. The fourth respondent has given the details of the services rendered by Thiru.Annadurai in Highways Department. He would therefore qualify for regularisation. The Petitioner is therefore, perfectly correct in her contention that she is entitled to count the earlier services of her husband for the purpose of fixing pension.”
and resultantly, set aside the impugned order and remitted the https://hcservices.ecourts.gov.in/hcservices/ matter to the Second Appellant/Second Respondent for fresh
consideration and further, directed to regularise/provincialise the services of K.Ponnudurai from 20.09.1957 to 06.11.1970 and to consider the case of the First Respondent/Petitioner for pension within a period of three months from the date of receipt of the copy of the order.
3.Challenging the correctness of the order dated 09.02.2015 in W.P.No.27924 of 2014 passed by the Learned Single Judge in allowing the Writ Petition, the Learned Government Advocate urges before this Court that the order of the Learned Single Judge in allowing the Writ Petition is against Law and Probabilities of the case.
4.According to the Appellants/Respondents, the Learned Single Judge who have noted the fact that K.Ponnudurai, husband of the First Respondent/Writ Petitioner joined duty on 20.09.1957 as NonProvincialised Road Inspector in Highways Department and retired on 06.11.1970 on attaining the age of superannuation and that he died on 12.07.1977.
5.The Learned Government Advocate for the Appellants submits that the service of the First Respondent/Petitioner's husband were not provincialised/regularised and the entire service was under Non-Provincialised workcharged establishment.
6.The grievance of the Appellants is that the Learned Single Judge had failed to appreciate that based on the orders issued by the Tamil Nadu Administrative Tribunal, the Government issued orders in G.O.Ms.550, Public Works Department dated 31.03.1993, for counting the period of service under Non-Provincialised work charged establishments rendered earlier to the date of provincialisation/regularisation for the calculation of pensionary benefits and common orders were issued in terms of G.O.Ms.893, Public Works Department, dated 22.08.1994.
7.The Learned Government Advocate for the Appellants brings it to the notice of this Court that the Learned Single Judge should have noted that the Government in G.O.Ms.1392, Finance (Pension) Department dated 31.12.1990 have ordered for payment of Ex-Gratia to the deceased Government servants who were under non pensionable establishment and on that basis, the Second Respondent/Principal Accountant General (A & D), Tamil Nadu had issued P.P.O.No.1001 for payment of Ex-Gratia to the First Respondent and she is now drawing the same.
8.It is represented on behalf of the Appellants that the Learned Single Judge had failed to take into account of a vital fact that the order dated 07.11.1991 in T.A.No.1469 of 1989 by the Tamil Nadu Administrative Tribunal and G.O.Ms.550, Public Works Department, dated 31.03.1993 are not applicable to the case of the deceased K.Ponnudurai.
9.The Learned Government Advocate for the Appellants proceeds to contend that the Government issued G.O.Ms.2452, Public Works https://hcservices.ecourts.gov.in/hcservices/ Department, dated 17.12.1987 to sanction minimum Pension of
Rs.100/- to all the surviving retired workcharged employees of all the departments of Government whose services were provincialised and who retired after 24.11.1970 and on or before 31.12.1976 subject to certain conditions.
10.The Learned Government Advocate for the Appellants submits that the First Respondent/Petitioner had filed the W.P.No.27924 of 2014 after a long delay and as such, the Writ Petition suffers from laches.
11.Lastly, it is the submission of the Learned Government Advocate for the Appellants that since the First Respondent/Petitioner's husband K.Ponnudurai retired on 06.11.1970, no pension could be granted either to him or the family pension can be granted to the First Respondent.
12.Conversely, it is the submission of the Learned counsel for the First Respondent/Petitioner that the First Respondent/Petitioner's husband K.Ponnudurai @ Ponnudurai Thevar after studying S.S.L.C. joined as a Road Inspector (Maestri) under the Tanjore District Board and served for five years period from 1936 to 1941 and was ousted along with other Road Inspectors due to Second World War 1941-1944.
13.It is further represented on behalf of the First Respondent/Petitioner that subsequently, the First Respondent's husband was reappointed as Road Inspector on a monthly salary of Rs.35/- with allowances at Vedaranyam Block by the Third Appellant/Third Respondent through proceedings dated 16.09.1957 and he served as Road Inspector till the date of his retirement i.e., on 06.11.1970 and that he expired on 12.07.1977.
14.The Learned counsel for the First Respondent contends that the services of workcharged (Non-Provincialised) establishment are to be counted for the purpose of pension in respect of those whose services were regularised after five years and the First Respondent/Petitioner came to know about this and her husband who had put in service of over 13 years besides five years from 13.06.1941 and retrenched due to Second World War from 1941 to 1944, his service ought to have been regularised after the order passed by the Tamil Nadu Administrative Tribunal in T.A.No.1469 of 1989 on 07.11.1991.
15.The core plea taken on behalf of the First Respondent/Petitioner is that the order passed by the Tamil Nadu Administrative Tribunal dated 07.11.1991 in T.A.No.1469 of 1989 was not given effect to, as a result of which, the First Respondent/Petitioner was deprived of her eligibility to get due family pension from the time when grant of pension to NonProvincialised Establishment was introduced.
16.Continuing further, the Learned counsel for the First https://hcservices.ecourts.gov.in/hcservices/ Respondent brings it to the notice of this Court that persons
similarly placed like that of the First Respondent/Petitioner's husband are drawing over Rs.3000/- per month, but the First Respondent is only receiving a fixed Ex-Gratia pension of less than Rs.1500/-.
17.Finally, it is the contention of the Learned counsel for the First Respondent that only after coming to know about the Tamil Nadu Administrative Tribunal's order passed in T.A.No.1469 of 1989 dated 07.11.1991 and after the representation of the First Respondent and her son's representation on her behalf, the Second Respondent/Principal Accountant General (A & E), Tamil Nadu had passed the order on 28.05.2014 stating that in as much as the First Respondent Husband's services were Non-Provincialised as on the date of his retirement namely, 06.11.1970, pension cannot be granted for her husband as well as the family pension to her.
18.According to the Learned counsel for the First Respondent, the First Respondent/Writ Petitioner is a 94 years old widow besides being an illiterate person and she would be satisfied if the family pension is granted atleast from 01.01.1991 to her i.e., from the date on which she is drawing Ex-Gratia pension.
19.In the instant case, the Appellants have taken a clear cut stand that the orders issued by the Tamil Nadu Administrative Tribunal in T.A.No.1469 of 1989 dated 07.11.1991 in respect of those persons whose services were provincialised/regularised. Further, it is the stand of the Appellants that the services of the First Respondent/Petitioner's husband was not provincialised or regularised at the time of his retirement and as such, he was not eligible for pension or family pension.
20.It is to be noted that the earlier Tamil Nadu Public Works Department Employees (former workcharged establishment) Association represented by its General Secretary/Applicant in T.A.No.1469 of 1989 (in W.P.No.6517/1987) and seven other Applicants [in O.A.344/1989, O.A.345/1989, 650/1989, 743/1989, 1621/1989, 1466/1990, 1993/1990] earlier filed Applications on the file of the Tamil Nadu Administrative Tribunal, the Tribunal allowed all the applications by passing an order to the effect that 'the services rendered by the Applicants under the Non-Provincialised workcharged establishment cannot be denied for the purpose of pension to those whose services are regularised and further, directed the Respondents therein to dispose of the case of the individual Applicants in the light of the order passed therein.
21.It is to be borne in mind that the Government of Tamil Nadu based on the orders issued by the Tamil Nadu Administrative Tribunal dated 07.11.1991 in T.A.No.1469 of 1989 had issued orders in G.O.Ms.550, Public Works (C2) Department, dated 31.03.1993 for counting the period of service under Non-Provincialised workcharged establishment, rendered earlier to the date of provincialisation/regularisation for the calculation of pensionary benefits. Further, the Government of Tamil Nadu issued G.O.Ms.893, https://hcservices.ecourts.gov.in/hcservices/ Public Works (HM.2) Department dated 22.08.1994, whereby and where
under in paragraphs 4 and 5, it is observed as follows:
“4.The Government, after careful consideration' have decided to implement the orders of Tribunal referred to in paragraph 3 above and accordingly, direct that the none provincialised service under workcharged establishment rendered by all the workcharged personnel of Public Works and Highways Department, whose services are provincialised or brought into regular establishment be counted for calculation of pension subject to the following conditions:-
a)The terminal benefits, if any received by then for the portion of the service rendered under non-provincialised establishment including the adhoc pensioners sanctioned in G.O.Ms.No.1628 Public Works Department, dated 23.11.1992 will be adjusted while admitting the payment of the revised pension; and
b)The benefit will be only from the cate on which the pension was payable for provincialised service or following transfer to regular establishment.
5.This order also be applicable to the workcharged personnel who retired between 24.11.1970 and 31.12.1976 and now received adhoc pension Rs.150/- Plus Dearness Allowance per month.”
22.One cannot brush aside an important fact that the First Respondent/Petitioner's husband deceased K.Ponnudurai was similarly placed like that of employees who had filed T.A.No.1469 of 1989 (W.P.No.6517 of 1987) batch, wherein the Tribunal passed an order on 07.11.1991 stating that the employees were entitled to count their services rendered under Non-Provincialised workcharged establishment for the purpose of pension.
23.In this connection, this Court very pertinently points out that ordinarily, similarly placed employees in an Institution/Organisation/Establishment while discharging the same duties and responsibilities like that of others are to be treated in an equal manner. If certain persons alone are showered with personal benefits, then, it will kindle the 'Homo-Sapiens' to recall and recollect the quotation of George Orwellian, who rightly said that 'All are equal but some are more equal than others'.
24.No wonder, the guarantee of 'Equality Before Law' is a positive concept. It cannot be enforced in a negative manner. In reality, the principle of equal treatment presupposed its existence of similar legal foothold. Undoubtedly, Article 14 of the Constitution of India is a genus in the sense that the clauses on lawful or protective discrimination and public employment as laid down in Articles 15 and 16 respectively provided for exceptions to https://hcservices.ecourts.gov.in/hcservices/ that equality clause of Article 14.
25.In regard to the plea taken on behalf of the Appellants that the Writ Petition was filed by the First Respondent/Petitioner after inordinate delay and therefore, the same suffers from laches, it is to be pointed out that the First Respondent/Petitioner's husband was similarly placed like that of those who obtained favourable orders in T.A.No.1469 of 1989 batch and by applying the said orders, this Court opines that the Appellants ought to have extended similar benefits to the case of the First Respondent/Petitioner's husband. In as much as, the Appellants had not extended benefits as per order in T.A.No.1469 of 1989 dated 07.11.1991 and also taking note of the fact that the First Respondent/Petitioner was aged about 94 years at the time of filing the Writ Petition and she being an illiterate and a widow, the aspect of delay and laches cannot defeat the indefeasible right of the First Respondent/Petitioner in the considered opinion of this Court. As such, the contra plea taken on behalf of the Appellants is rejected by this Court.
26.As far as the present case is concerned, the First Respondent/Petitioner's deceased husband K.Ponnudurai served for a period of about 18 years and as such, he was rightly eligible to be considered for regularisation. However, the fact of the matter is that the Appellants/Respondents had not taken any concrete steps to regularise the services of the First Respondent/Petitioner's deceased husband prior to his retirement or to provincialise his services in the manner known to law and in accordance with law. If the Appellants/Respondents had regularised the services of First Respondent/Petitioner's husband prior to his retirement, then certainly, he would be entitled to receive family pension. As such, the impugned order of the Second Appellant/Second Respondent in Letter No.433/Nir.1/C&M/2014 dated 28.05.2014 to the effect that since Thiru.K.Ponnudurai, Road Inspector who retired on 06.11.1970 during Non-Provincialised service period without being provincialised, family pension cannot be sanctioned to the individual and his wife Mrs.P.Achiammal (First Respondent/Petitioner) is clearly unsustainable in the eye of Law and in this regard, the views of the Learned Single Judge in setting aside the said impugned order etc., and allowing the Writ Petition, do not suffer from any legal infirmities or material irregularities or patent illegalities in the eye of Law. Consequently, the Writ Appeal fails.
27.In the result, the Writ Appeal is dismissed. Consequently, connected Miscellaneous Petition is closed. No costs.
Sd/Asst.Registrar (CO)
/true copy/
Sub Asst. Registrar
DP
To
1.The Secretary to Government,
Government of Tamil Nadu
Public Works and Highways Department,
Fort St. George, Chennai-9.
2.The Chief Engineer,
Highways Department,
(Construction & Maintenance)
Chepauk, Chennai-5.
3.The Divisional Engineer,
Highways Department,
(Construction & Maintenance),
Mahalakshmi Nagar,
Nagapattinam,
Nagapattinam District.
4.The Principal Accountant General (A & E),
Tamil Nadu,
No.261, Anna Salai,
Chennai-18.
+1 cc to Mr.B.Venugopal, Advocate, sr.51408
+1 cc to Government Pleader, sr.51560
W.A.No.1290 of 2015
and M.P.No.1 of 2015
pvr co
kra 08/10
3 issues framed by the court
Whether a family pension is denied to a widow whose husband retired under non-provincialised workcharged establishment without prior regularisation.,
Whether the aspect of delay and laches in filing a writ petition by an illiterate 94-year-old widow defeats her indefeasible right to pension benefits.,
Whether similarly placed employees must be treated equally by the government when granting pension benefits based on Administrative Tribunal orders.
Colour shows how this judgement treated each authority
4 provisions across 4 enactments
The Government of Tamil Nadu rep. by Secretary to Government, Public Works and Highways Department
The Chief Engineer, Highways Department
The Divisional Engineer, Highways Department
P.Achiammal
The Principal Accountant General (A & E), Tamil Nadu
S.MANIKUMAR
M.VENUGOPAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
