(Prayer in W. A. (MD) No.741 of 2025: Writ Appeal filed under Clause 15 of the Letters Patent, praying to set aside the Order dated August 09, 2024 passed in W.P. (MD) No.18142 of 2016 on the file of this Court.

In C.M.P. (MD) No.5090 of 2025: Civil Miscellaneous Petition filed praying to stay the operation of the Order dated August 09, 2024 passed in W.P. (MD) No.18142 of 2016 pending disposal of the above Writ Appeal.)

R. Sakthivel, J.

1. This Writ Appeal is filed at the instance of the respondents in W.P. (MD) No.18142 of 2016, challenging the Order dated August 09, 2024 passed therein by a learned Single Judge of this Court. The Writ Petition was filed for a Writ of Certiorarified Mandamus seeking to quash 'the proceedings in Na. Ka. No.038157/NiPi5/3/2015 dated February 05, 2016 on the file of second appellant namely the Director, Directorate of Medical and Rural Health Services' ['the Impugned Order' for convenience and clarity].

2. For the sake of convenience, the respondent herein who had filed the aforesaid Writ Petition will be addressed as the writ petitioner, while the appellants herein who are the respondents in the Writ Petition will be continued to be addressed as appellants.

UNDISPUTED FACTS ARE THUS:

3. The writ petitioner had registered in District Employment Exchange for employment in 1987 and accordingly, his name was sponsored to District Blindness Control Society, Government Head Quarters Hospital, Dindigul, for the post of Driver on daily wages on September 18, 2000. He got selected for that post on September 28, 2000.

                     3.1. In 2007, he filed a Writ Petition in W.P. (MD) No.9074 of 2007 before this Court praying to issue a Writ of Mandamus directing the appellants herein to appoint the writ petitioner as driver in any one of the permanent vacancies in Government Head Quarters Hospital, Dindigul within stipulated period with all service benefit from 2001 onwards. In the said Writ Petition, an interim order was issued directing the appellants herein to reserve one permanent Driver post vacant until further Orders from the Court. Subsequently, the Writ Petition was allowed on September 17, 2010 directing the second appellant herein to consider the writ petitioner's request for appointment as a permanent Driver in the aforesaid reserved vacancy. Pursuant thereto, the writ petitioner was temporarily appointed as Driver in the said reserved vacancy on May 19, 2011 under Rule 10(a)(i)(1) of the Tamil Nadu State Subordinate Service Rules [hereinafter, any reference to Rule 10(a)(i)(1) shall be regarded as that to Rule 10(a)(i)(1) of the Tamil Nadu State Subordinate Service Rules]. Later, on November 23, 2012, his temporary service was regularised from May 21, 2011. Probation was declared in his favour on February 10, 2014.

                     3.2. Thereafter, he filed an application before the second appellant seeking to regularise his service rendered as daily wage driver as well. In other words, he sought regularisation of his service during the period between September 28, 2000 and May 19, 2011 along with all pensionary benefits and seniority status. His request was rejected by the second appellant vide the Impugned Order by stating that, during the relevant period, the writ petitioner was working as daily wage worker and hence the same cannot be regularised. Feeling aggrieved by the same, he filed the Writ Petition in W.P. (MD) No.18142 of 2016 over which the present Writ Appeal has been filed. There is no dispute with the above facts.

4. A learned Single Judge of this Court after hearing both sides, allowed the Writ Petition and quashed the Impugned Order and directed the appellants herein, who were respondents therein, to grant all service benefits to the writ petitioner from the date of his appointment as Driver on daily wage basis i.e., from September 28, 2000 within a period of three months from the date of receipt of a copy of the Order. Assailing the same, the respondents therein are before this Court by filing this Writ Appeal.

SUBMISSIONS:

5. The submissions of Mr.K.K.Udhayakumar, the learned Government Advocate (civil side) appearing for the appellants / respondents were that during the period between September 28, 2000 and May 19, 2011, the writ petitioner was employed as a Driver purely on daily wage basis inter-alia on the condition that his service may be terminated at any point of time without any notice. Subsequently, pursuant to the Order of this Court passed in W.P. (MD) No.9074 of 2007, he was temporarily appointed as a Driver in a permanent post under Rule 10(a)(i)(1) on May 19, 2011 which was later regularised from May 21, 2011 as stated above. And as such, the writ petitioner is not entitled to pension; he may only be entitled to the benefits of Contributory Pension Scheme. Further, the appointment to the permanent post being on May 19, 2011, the Tamil Nadu Pension Rules, 1978 will not be applicable to the writ petitioner in view of the proviso to Rule 2 thereof. In this regard, he would rely on a Full Bench Judgment of this Court in State of Tamil Nadu -vs- R. Kaliyamoorthy, reported in 2019-5-LW-673. According to him, the learned Single Judge without considering the above aspects and the above case law, erred in allowing the Writ Petition. Accordingly, he would to allow the Writ Appeal and set aside the Order of the learned Single Judge and thereby sustain the Impugned Order.

6. Per contra, Mr.S.M.Ramasiva, learned Counsel appearing for the respondent herein / writ petitioner would submit that the writ petitioner joined as a daily wage Driver on September 28, 2000. Thereafter, pursuant to the earlier Writ Order in W.P. (MD) No.9074 of 2007, he was appointed temporarily to the permanent post of Driver under Rule 10(a)(i)(1) and later, the same was regularised from May 21, 2011. The prayer in the earlier Writ Petition, was to direct the appellants herein to appoint the writ petitioner as a Driver in a permanent post "with all service benefits from 2001 onwards". Hence, as per the earlier Writ Order, his service ought to be regularised from his initial appointment as daily wage Driver on September 28, 2000 with all the service benefits including the pension benefits under Rule 11 of the Tamil Nadu Pension Rules, 1978. Hence, the Impugned Order is not sustainable. The Writ Court after considering the entire materials rightly allowed the Writ Petition and granted service benefits to the petitioner from the date of appointment i.e., September 28, 2000. There is irregularity or illegality in the Order passed by the learned Single Judge. Therefore, he would pray to dismiss the present Writ Appeal as devoid of merits. He would rely on Judgment of Hon'ble Supreme Court dated October 29, 2018 in the case of State of Bihar -vs- Baliram Singh in Civil Appeal No.10806 of 2018.

DISCUSSION:

7. This Court has considered both sides' submissions and perused the materials available on record.

8. At this point, reference may be made to the admitted facts set out hereinabove in Paragraph Nos.3 to 3.2.

9. This Court would first like to consider the submission of the learned Counsel for the respondent / writ petitioner that the prayer in the earlier Writ Petition in W.P. (MD) No.9074 of 2007 was to direct the appellants herein to appoint the writ petitioner as a Driver in a permanent post "with all service benefits from 2001 onwards" and hence, as per the earlier Writ Order, his service ought to be regularised from his initial appointment as daily wage Driver on September 28, 2000 with all the service benefits including the pension benefits. This Court has perused the Final Order dated September 19, 2010 passed in W.P. (MD) No.9074 of 2007. Whatever may be the prayer, the Final Order of this Court in W.P. (MD) No.9074 of 2007 does not mention anywhere anything to the effect that all the service benefits to the writ petitioner shall be reckoned / considered from his initial appointment on daily wage basis on September 28, 2000. Moreover, generally, such a relief cannot be granted as per law. Hence, the said contention deserves to be rejected.

10. This Court deems fit to extract the proviso to Rule 2 of the Tamil Nadu Pension Rules, 1978 hereunder:

                     "2. Application

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                     Provided that these rules shall not apply to Government servants appointed on or after the 1st April 2003, to services and posts in connection with the affairs of the State which are borne on pensionable establishment, whether temporary or permanent."

11. Further, this Court deems fit to extract Rule 11 thereof hereunder:

                     "CHAPTER – III

                     QUALIFYING SERVICE

                     11. Commencement of qualifying services. –

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                     (3) Half of the service rendered by a Government servant under non-pensionable establishment shall be counted for retirement benefits along with regular service under pensionable establishment subject to the following conditions:—

                     (i) Service under non-pensionable establishment shall be in a job involving whole time employment.

                     (ii) Service under non-pensionable establishment shall be on time scale of pay and

                     (iii) Service under non-pensionable establishment shall be continuous and followed by absorption in pensionable establishment without a break. Provided that in respect of those who retired prior to the 14th February, 1996, the retirement benefit or revised retirement benefit, as the case may be, admissible to them shall be paid from the 14th February, 1996 and there shall be no claim for arrears in any case, for the period up to the 13th February, 1996.

                     (4) Half of the service rendered under the State Government in non-provincialised service, consolidated pay, honorarium or daily wages basis on or after 1st January 1961 in respect of Government employees absorbed in regular service before 1st April 2003 shall be counted for retirement benefits along with regular service, subject to the following conditions, namely:—

                     (i) Service rendered in non-provincialised service, consolidated pay, honorarium or daily wages basis shall be in a job involving whole time employment;

                     (ii) Service rendered shall be on consolidated pay, honorarium or daily wages basis paid on monthly basis and subsequently absorbed in regular service under the State Government;

                     (iii) Service rendered in non-provincialised service, consolidated pay, honorarium or daily wages basis shall be followed by absorption in regular service before 1st April 2003 without a break.

                     Provided that this sub-rule is applicable to all employees who rendered service under the State Government in non-provincialised service, consolidated pay, honorarium or daily wages basis on or after 1st January 1961 and absorbed in regular service before 1st April 2003.

                     Provided further that wherever there was break in service before their absorption in regular service before 1st April 2003, the same shall be specifically condoned by the orders of the Head of Departments, in which the employees were regularly absorbed and such period of break, shall not count for the purpose of pensionary benefits."

                     [Emphasis supplied by this Court]

12. As stated above, admittedly, the writ petitioner was temporarily appointed as Driver in a permanent vacancy on May 19, 2011 under Rule 10(a)(i)(1) and his appointment was subsequently regularised from May 21, 2011. Firstly, as per the proviso to Rule 2 of the Tamil Nadu Pension Rules, 1978, the same is not applicable to a person appointed on or after April 1, 2003. Hence, the same is not applicable to the writ petitioner who was appointed on May 19, 2011. Secondly, as per the proviso to sub-rule 4 of Rule 11 of the Tamil Nadu Pension Rules, 1978, for reckoning half of the non-provincialized service period / daily wage period as part of qualifying period for pension, regularisation ought to be on or before April 1, 2003. In the present case, the writ petitioner was admittedly regularised from May 21, 2011. Consequently, even while operating under the assumption that the Tamil Nadu Pension Rules, 1978 is applicable to the writ petitioner, his past service cannot in any manner reckoned as a part of qualifying service for pension.

13. The learned Government Advocate rightly placed reliance on the Full Bench Judgment of this Court in Kaliyamoorthy's Case [cited supra]. It is to be noted that Special Leave Petition (Civil) Diary No. 15406 of 2021 preferred assailing the Kaliyamoorthy's Case ended in dismissal. Further, Kaliyamoorthy's case has been affirmed by another Full Bench of this Court in State of TamilNadu vs P.Arunachalam reported in (2024) 2 CTC 561. The reference question in Kaliyamoorthy's Case has been set out in Paragraph Nos.1 and 2 of the Judgment therein, which read thus:

                     "This Full Bench was constituted by the Honourable The Chief Justice pursuant to the order dated 29.08.2018 passed by the Division Bench of this Court in W.A. No. 1218 of 2018 etc., batch to refer the below mentioned issue for an authoritative pronouncement:—

                     "In view of the provisions of the Tamil Nadu Pension Rules, as amended, if a government servant is regularised in service after 01.04.2003 whether such a person will be entitled to count 50% of the past service rendered prior to regularisation for the purpose of computing his pension under the old pension scheme."

                     2. For the sake of clarity, we are paraphrasing the above reference as follows:—

                     "Whether half of the past service rendered by Government servants whose appointments were regularised after 01.04.2003 can be counted for the purpose of grant of pension under the provisions of the Tamil Nadu Pension Rules, 1978 in the light of the amendments to the aforesaid rules vide G.O. Ms. No. 259, Finance (Pension) Department dated 06.08.2003 and G.O. Ms. No. 41, Finance (Pension) Department dated 08.02.2010.""

                     13.1. Relevant portions of the Hon'ble Full Bench's answer to the reference read thus:

                     "33. For example if a person is appointed prior to 01.04.2003 in a non-provincialised service or on consolidated pay or on honorarium or daily wage basis and later to a cadre post on temporary basis under Rule 10(a)(i) of The Tamil Nadu State and Subordinate Service Rules before 01.04.2003 and such service is regularised after 01/04/2003; such Government employee is eligible for Government Pension under the Tamil Nadu Pension Rules but at the same time would not be eligible to include half of services rendered in such capacity viz., i) Non-provincialised Services ii) Consolidated pay; iii) honorarium; or iv) daily wage basis to his regular service:

                     34. Thus, a government servant who may have been appointed before the cutoff date of 31.03.2003 may be entitled to government pension if he satisfies the requirement of qualifying service in Rule 3(o) of the Tamil Nadu Pension Rules, 1978. However, such a person will not be entitled to add half of the past service held in any one of the four capacity mentioned above prior to 01.04.2003 since his regularisation is subsequent to the cut off date. Therefore, only those who were appointed prior to 01.04.2003 whether as temporary appointment but in accordance with Rule 10(a)(i) alone will be entitled to get pension.

                     35. The cut off date i.e. on or after 01.04.2003 in proviso to Rule 2 of the Tamil Nadu Pension Rules, 1978 will not perse bar a person from getting pension if such a person had joined the service in accordance with the provisions of Tamil Nadu State and Subordinate Service Rules i.e in the cadre whether on temporary or permanent basis. Services rendered before the cut off date of 01.04.2003, can be added to the regular service only if the service was regularised before the said date for determining the qualifying service. Therefore, in our opinion, it would be appropriate to say that Rule 11(4) gives the meaning of qualifying service rather than giving significance to cut off date. Therefore, it is clear that only if the appointment is in accordance with the Rules and such appointment is prior to 01.04.2003, 50% of the past service can be added along with the regular service.

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                     38. In the light of the above, we answer the reference 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."

14. In Kaliyamoorthy's Case, Hon'ble Full Bench has categorically held that if a person is appointed on temporary basis or as a daily wager or under Rule 10(a)(i)(1) and regularised prior to April 01, 2003, in such a scenario, half of the service rendered by the individual before regularization / appointment can be considered for the purpose of pension. In this case, the petitioner was appointed on May 19, 2011 and regularised from May 21, 2011. Hence, as per proviso to Rule 2 of Tamil Nadu Pension Rules, 1978, the writ petitioner is not entitled to claim pension under the Tamil Nadu Pension Rules, 1978. On the other hand, he is a member of Contributory Pension Scheme. When the Tamil Nadu Pension Rules, 1978 itself would not be applicable to the writ petitioner, the question of considering his past non-provincialized service as a part of the qualifying period for pension would not arise at all. The learned Single Judge without considering the fact that the date of appointment and the regularisation are after April 01, 2003, erred in allowing the Writ Petition and setting aside the Impugned Order. Therefore, the Order of the learned Single Judge is liable to be set aside.

15. As regards Baliram Singh's Case relied on by the learned Counsel for the respondent herein / writ petitioner, it is not applicable to the facts of the present case. It does not deal with the Tamil Nadu Pension Rules, 1978 or anything pari materia to the same.

CONCLUSION :

16. Resultantly, this Writ Appeal is allowed and the order passed in W.P.(MD).No.18142 of 2016 dated August 09, 2024 is set aside. The impugned order challenged before the Writ Court is sustained. In view of the facts and circumstances of this case, there shall be no order as to costs. Consequently, connected Civil Miscellaneous Petition is closed.