(Prayer: Writ petition is filed under Article 226 of Constitution of India, praying for issuance of writ of certiorarified mandamus, to call for the records, pertaining to the order dated 05.09.2017 passed by the 3rd respondent in Letter No.16167/60 Na.Tho.Pi/MTC/2017, quash the same and consequently direct the 1st respondent to sanction and pay the petitioner’s monthly pension for the service rendered in the State Transport Department by taking that he has completed 10 years of qualifying pensionable service, with effect from 01.01.1988, with arrears and all other consequential benefits including revised of pension and dearness allowance as revised from time to time, together with interest at the rate of 12% per annum.)

1. Heard the learned counsel for the petitioner, the learned Special Government Pleader appearing for respondents 1 and 2 and the learned Standing Counsel for the 3rd respondent and perused the records.

2. The case of the petitioner, in brief, is that he had joined the service of the erstwhile Transport Department as a Conductor on 19.11.1971; that his services were made permanent and he was brought into time scale of pay with effect from 01.12.1972; and that pursuant to a policy decision taken by the 1st respondent, he was sent on deputation to the 3rd respondent Corporation.

                   2.1. It is the further case of the petitioner that while he was deputed to the 3rd respondent Corporation, the Government had approved pension for the erstwhile employees of the Transport Department from the date of absorption; that the aforesaid issue was the subject matter of consideration before the Hon’ble Supreme Court and that the Hon’ble Supreme Court, by judgment reported in 2003 (10) SCC 503, held that the cut-off date for absorption of employees of the erstwhile Transport Department into the Transport Corporation would be 01.04.1982 and also issued directions to sanction pension by counting service up to 31.03.1982.

                   2.2. The petitioner further contended that the Government once again took the stand that employees governed by the Tamil Nadu Transport Corporation Employees’ Pension Scheme with effect from 01.09.1998 would not be entitled to a separate pension for the service rendered in the Transport Department; that the aforesaid decision gave rise to another round of litigation; and that the Division Bench of this Court held that the employees of the erstwhile Transport Department would be entitled to a separate and independent pension, in addition to the pension for the service rendered in the Transport Corporation; that the civil appeal filed against the decision of the Division Bench of this Court was dismissed by the Hon’ble Supreme Court, as also the review petitions filed thereafter.

                   2.3. The petitioner further contended that after joining the Transport Department on 19.11.1971 and he worked in the said department till 30.11.1972 and thereafter, upon being deputed to work with the 3rd respondent, he retired from service on attaining the age of superannuation on 30.06.2002; that the 3rd respondent granted him pension for the period of service rendered by him from 01.04.1982 to 30.06.2002; that after the disposal of the civil appeal by the Hon’ble Apex Court, the 3rd respondent called upon him to submit an application for sanction of pension for the service rendered in the Transport Department and accordingly, he submitted his application on 21.04.2018; that after the issuance of G.O.Ms.No.96 dated 31.07.2015 by the 1st respondent, sanctioning monthly pension to employees who had rendered service in the erstwhile Transport Department; that the petitioner had made a representation on 26.07.2017 seeking sanction of monthly pension, pointing out that he had rendered the minimum eligible qualified pensionable service of 10 years in the Tamil Nadu Transport Department; that the 3rd respondent however, by order dated 05.09.2017 had rejected his claim for pension on the ground that he did not have the total qualifying service of 10 years and thus, he is not entitled for pension for his services in the Transport Department.

                   2.4. It is the further case of the petitioner that though he was appointed as a Conductor on 19.11.1971 in a regular vacancy, it was the prevailing practice to place the Drivers and Conductors so appointed on a daily wage basis and to make them permanent on completion of 240 days of service; that accordingly, the petitioner was made permanent on 01.12.1972 and brought under the time scale of pay. Hence, the respondents are bound to count the period of service rendered by the petitioner on daily wages as regular service in terms of Rule 3(o) of Tamil Nadu Pension Rules, 1978; that if the said period of service, along with the service rendered by him in the Transport Department up to the cut-off date of absorption fixed by the Supreme Court as 01.04.1982, is taken into account, the petitioner has completed 10 years 4 months and 12 days of qualifying pensionable service and as such, he would be eligible for pension, having put in the required qualifying service; and that the impugned proceedings of the 3rd respondent dated 05.09.2017 rejecting his request for grant of pension for the service rendered in Transport Department is illegal.

                   2.5. It is the alternate contention of the petitioner that even if half of his temporary service is taken into account, the period from 19.11.1971 to 30.11.1972, would be to 1 year and 11 days, and when reckoned at half, would be 6 months and 5 ½ days and if the said period as per Rule 11, is added to the regular service of 9 years 3 months 30 days, the petitioner would have the requisite qualifying service for grant of pension; and that as per Rule 43(3) of the Tamil Nadu Pension Rules, any fraction of service of three months and above shall be treated as one half-year; and thus, the petitioner has completed 20 half years / 10 years of qualifying pensionable service. It is thus contended that the impugned order dated 05.09.2017 rejecting his claim for grant of pension for the service rendered in the Transport Department, is illegal, arbitrary and without application of mind and was passed with a malafide intention to deny pension.

                   2.6. The petitioner further contended that the Tamil Nadu Administrative Tribunal, in several cases, had held that pension is to be sanctioned by counting temporary service in full along with regular service and that the said view has been confirmed by this Court in W.A.Nos.1752 and 1827 of 2009; and that this Court had also allowed a similar batch of writ petitions by a common order in W.P. Nos. 8207 to 8707 of 2016 and issued directions to the respondent to sanction monthly pension by treating the petitioners therein as having completed 10 years of qualifying service; and that since, the respondents have implemented the said orders of this Court, they cannot deny the claim of the petitioner for grant of pension. Contending as above, the petitioner seeks for quashing of the impugned proceedings, with a consequential direction to the 1st respondent to sanction and pay monthly pension for the service rendered by him in the State Transport Department by treating him as having completed 10 years of qualifying pensionable service, together with arrears and all other consequential benefits, including revised pension and dearness allowance along with interest at the rate of 12% per annum.

3. A Counter affidavit has been filed on behalf of the 3rd respondent.

4. The 3rd respondent, while denying the writ averments, contended that the petitioner joined the erstwhile Transport Department on a regular basis on 01.12.1972; that with continuity of service, he was absorbed into the Pallavan Transport Corporation on 01.05.1975 and attained the age of superannuation on 30.06.2002; that his total length of service is counted as 29 years; and that upon attaining the age of superannuation and retiring from service on 30.06.2002, the petitioner was sanctioned with pensionary benefits and is drawing a monthly pension of Rs.15,944/-.

                   4.1. The 3rd respondent, by the counter affidavit further contended that G.O.Ms.No.408, Finance (Pension) Department, dated 25.08.2009, applies only to Government employees absorbed into regular service in Government departments prior to 01.04.2003 and does not apply to the 3rd respondent Corporation; and that this Court upheld the same in its order dated 08.08.2022 in W.P. No.20436 of 2014; that Rule 43(3) of Tamil Nadu Pension Rules, 1978, allows rounding off of fractions only for the purpose of determining the quantum of pension and not for counting the qualifying minimum service requirement; that Rule 43 (3) of Tamil Nadu Pension Rules came into effect only from 01.01.1986, whereas the qualifying service of erstwhile TNSTC employees is assessed as on 01.04.1982; that Rule 11(1) of Pension Rules applies only to temporary or officiating service in a pensionable post and does not extend to daily wage workers; that the Apex Court has ruled that Article 14 of the Constitution cannot be invoked to justify the extension of illegal or irregular benefits; that although Rule 13 of the Transport Corporation Pension Rules provides for rounding off a minimum of six months of service to one year under proviso 13(a), no identical or similar rule exists under Tamil Nadu Pension Rules, 1978; that in the absence of such a rule, the petitioner cannot seek rounding off of his service to the next higher year; that the respondents have already extended the benefit to the petitioner by reckoning his temporary service in the Transport Department for the purpose of determining eligibility for pension; that the claim of the petitioner that he completed 10 years of qualifying service in the Transport Department is incorrect, as he had a net qualifying service of only 9 years 7 months and 13 days; that the shortfall period cannot be rounded off to the nearest year, as it would be contrary to the Rules; and that after considering the regular service rendered by the petitioner with effect from 01.12.1972 till absorption in the 3rd respondent Corporation, in terms of the order of the Apex Court’s orders, the petitioner had put in a net qualifying service of 9 years 1 month and 21 days; and even after adding 50% of the temporary service from 19.11.1971 to 01.12.1972, half of the said period comes to 5 months and 22 days, and the total qualifying service of the petitioner, after excluding leave period and permissible exclusions remains at 9 years 7 months and 13 days; and that he has not completed the minimum qualifying service of 10 years as required under the Tamil Nadu Pension Rules, 1978 and thus, the petitioner is not eligible for grant of pension for the services rendered by him in the Transport Department.

                   4.2. The learned Standing Counsel appearing on behalf of the 3rd respondent further submitted that since the petitioner is not eligible to receive pension for the services rendered under the Transport Corporation, the respondent, by considering the provisions of Rules 13 and 14 of Tamil Nadu State Transport Corporation Employees’ Pension Fund Rules, has notionally calculated the period of pensionable service rendered by the petitioner in his previous employment i.e., the Transport Department while arriving at the pension payable to the petitioner on attaining the age of superannuation on 30.06.2022.

                   4.3. The respondents further contended that the petitioner himself, having calculated the period of service rendered by him on a daily wage basis at the rate of 50%, cannot now take a contradictory stand by claiming that the entire period of temporary service should be counted in fall for the purpose of determining his eligibility of qualifying service; that the petitioner cannot rely upon Section 2(p)(ii), as amended in the year 2001; and that Rule 43(3) of Tamil Nadu Pension Rules does not apply to the petitioner.

                   4.4. On behalf of the 3rd respondent, the learned Standing Counsel further contended that the Hon’ble Apex Court, by its judgment rendered in the year 2003, had fixed the cut-off date as 01.04.1982, and that the petitioner had not made any claim for grant of pension in respect of the services rendered by him in the erstwhile Transport Department at the relevant point of time; and that it was only by way of a representation dated 26.07.2017 submitted after a lapse of 15 years, the petitioner raised a claim for grant of separate pension for the services rendered in the erstwhile Transport Department; and that the respondents even before the petitioner submitting the representation, having regard to the applicable Rules, had taken into consideration the period of service rendered by the petitioner in Transport Department for the purpose of calculating the length of service for fixation and payment of pension under the 3rd respondent’s pension rules.

                   4.5. On behalf of the respondents, it is further contended that the period of service of the petitioner from the date of joining till the date on which his services were regularised in the Transport Department has been reckoned as half as per G.O.Ms.No.408 dated 25.08.2009, issued pursuant to the judgment of the Apex Court and culminated in the amendment of Rule 11 of Pension Rules in the form of insertion of new Rule i.e., Rule 11(4) providing for counting of half of such service; and inasmuch as there is no challenge to the said Rule in the present writ petition, the petitioner cannot claim that his service should be reckoned only under 11(1) of the Pension Rules.

                   4.6. The learned Standing Counsel for the 3rd respondent further submitted that the petitioner submitted representation for the first time only on 26.07.2017. Even though the decision of the Apex Court was rendered in the year 2003, whereby the cut-off date for absorption in the respondent Corporation was fixed as 01.04.1982, the petitioner failed to raise any claim within a reasonable time. Contending as above, the learned Standing Counsel placed reliance on the decision of the Division Bench of this Court dated 19.08.2024 in W.A.No. 1302 of 2022 and sought dismissal of the writ petition.

5. In reply to the aforesaid contentions, on behalf of the petitioner, it is contended that the petitioner approached this Court pursuant to the issuance of G.O.Ms.No.96 dated 31.07.2015 whereby the 1st respondent sanctioned pension for the service rendered in the erstwhile State Transport Department; and that since, the petitioner submitted his application for grant of pension in the year 2017, there is no inordinate delay as contended that the plea of delay and laches has not been raised by the respondent in the counter affidavit.

6. I have taken note of the respective contentions.

7. The short point involved in the present writ petition are as follows:

                   i) Whether the petitioner is entitled to have the period of service rendered on a daily wage basis in the State Transport Department from 19.11.1971 to 30.11.1972, prior to regularisation of his services on 01.12.1972, counted for the purpose of pension.

                   ii) Whether the petitioner is entitled to have the aforesaid period of daily wage service added in full to his regular service rendered from 01.12.1972 to 01.04.1982, or whether he is entitled to have only 50% of such service reckoned, in terms of G.O.Ms.No.408, which culminated in the insertion of Rule 11(4) of the Tamil Nadu Pension Rules.

8. Though elaborate submissions were made on either side in support of their respective stands, the issue relating to the manner in which the period of service rendered by an erstwhile State Transport Department employee, particularly the period during which such employee was engaged on a daily wage basis prior to regularisation is to be reckoned for the purpose of determining eligibility for grant of pension, was the subject matter of consideration before a Division Bench of this Court in W.A.No.1302 of 2022 dated 19.08.2024.

9. The Division Bench of this Court taking note of G.O.Ms.No.408, had held that the period of service from the date of joining till the date of absorption as a regular employee shall be reckoned only to the extent of 50% and such portion alone shall be treated as qualifying service, after excluding non-qualifying periods such as loss of pay and leave on loss of pay. The said qualifying service is thereafter to be added to the service rendered from the date of regularisation till the cut-off date of absorption fixed by the Apex Court i.e., 01.04.1982. Applying to the said method, it was held that the petitioner therein did not possess the requisite qualifying service for grant of pension.

10. Applying to the aforesaid method of calculation adopted by the Division Bench of this Court to the facts of the present case, since the petitioner claims that his services were regularised in the State Transport Department on 01.12.1972 and continued till his absorption in the 3rd respondent Corporation on 01.04.1982 (as per the cut-off date fixed by the Supreme Court), he has rendered a total length of service of 9 years 3 months and 30 days. After excluding leave on loss of pay of 2 months and 9 days, the petitioner’s net qualifying service works out to 9 years 1 month and 21 days.

11. Insofar as the period of service rendered by the petitioner on a daily wage basis in the State Transport Department from 19.11.1971 to 01.12.1972, is concerned, the total period of service put in by the petitioner works out to 1 year 0 month and 12 days. After deducting leave on loss of pay of 28 days, the duty paid service comes to 11 months and 14 days. By applying G.O.Ms.No.408 dated 25.08.2009 the said period when translated into 50% qualifying service, works out to 5 months 22 days. If the said period of 5 months 22 days is added to the net qualifying service of the petitioner in the State Transport Department of 9 years 1 month 21 days, the total net qualifying service of the petitioner would be 9 years 7 months 13 days, which is admittedly less than 10 years of qualifying service for eligibility of pension.

12. Though reliance is placed on behalf of the petitioner on Rule 43(3) of the Tamil Nadu Pension Rules to contend that, while calculating qualifying service, a fraction of a year equal to 3 months and above shall be treated as a completed one half year in order to be reckoned as qualifying service, the petitioner’s net qualifying service of 9 years 7 months 13 days falls short by 1 month 17 days beyond the one completed half year, which is less than three months. Therefore, such fraction cannot be treated as completed one half year for the purpose of reckoning qualifying service. Thus, the petitioner has not achieved the requisite qualifying service so as to be granted pension in terms of G.O.Ms.No.96 in respect of the services rendered by him in the erstwhile Transport Department.

13. Thus, the answer to the questions framed above is in the negative.

14. Further, it is also to be noted that the petitioner, having accepted the pension fixed by the 3rd respondent at the time of his retirement on 30.06.2002, which was determined by taking into consideration the non-qualifying service rendered by him in the Transport Department as per the rules of the 3rd respondent pension fund, without any protest or reservation of his right to claim pension for the service rendered in the Transport Department, subject to the outcome of the proceedings pending before the Hon’ble Apex Court and also while submitting his representation on 26.07.2017 seeking grant of pension for the service rendered by him in the State Transport Department, the petitioner did not seek to rework the pension payable by the 3rd respondent Corporation which had included the length of service rendered by him in the State Transport Department for the purpose of fixation of pension. This conduct would only indicate that the petitioner intended to derive the benefit of a second pension for the very same service rendered in the Transport Department and in the event of the 3rd re- spondent revising the pension already paid to him resulting in excess payment for the earlier period and initiating steps for recovery thereof, the petitioner could again approach this Court contending that such recovery is impermissible by relying upon the decisions of the Apex Court, thereby seeking to derive a double benefit, which is impermissible in law.

15. Thus, in the considered view of this Court, the claim of the petitioner for grant of pension in respect of the service rendered by him in the State Transport Department is devoid of merit and consequently, the impugned order warrants no interference.

16. Accordingly, the Writ Petition stands dismissed. No costs.