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Judgment
V.M. Velumani, J.—Since common issues are involved in these writ appeals and the writ petition, they are heard together and decided by this common judgment.
Writ Appeal (MD) Nos. 587, 605 and 606 of 2014 have been filed to set aside the common order, dated 27.06.2012, passed in W.P. (MD) Nos. 8287, 7070, 7529 of 2011 respectively. W.A. (MD) No. 1024 of 2014 has been filed to set aside the order, dated 11.06.2013, passed in W.P. (MD) No. 5316 of 2013. W.P. (MD) No. 12689 of 2014 has been filed seeking issuance of a Writ of Certiorarified Mandamus, calling for the records relating to the impugned proceedings issued by the first respondent therein in Pen. 10/IV/11010459/2013-2014, dated 25.09.2013, quash the same and further direct the first respondent herein to sanction and disburse forthwith pension and other retiral benefits to the petitioner.
The respondent in W.A. (MD) No. 587 of 2014/petitioner in W.P. (MD) No. 8287 of 2011 filed the writ petition seeking issuance of a Writ of Certiorarified Mandamus, calling for records pertaining to the impugned proceedings of the fourth appellant/fourth respondent in Pen27/4/12704311/Rtd/2011-12, dated 30.06.2011, quash the same and direct the fourth appellant to fix the pension taking into account the respondent''s 50% service in Noon Meal Scheme and her entire service as Rural Welfare Officer and to pay pension and other terminal benefits. The respondent/petitioner joined the service as Balasevika on 01.07.1981 and served in the said post upto 30.09.1981 and served as Child Welfare Organiser from 01.07.1982 to 31.12.1995 and served as Anganvadi Worker from 01.01.1996 to 18.12.2009. She was promoted as Rural Welfare Officer (Women) on 19.12.2009 at Thanthoni Panchayat Union Office and retired from service on 31.07.2010 on attaining the age of superannuation.
The respondent in W.A. (MD) No. 605 of 2014/petitioner in W.P. (MD) No. 7070 of 2011 filed the writ petition seeking issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to the impugned proceedings of the sixth appellant in Pen20/V/12004467/Rtd/10-11/ADK, dated 03.03.2011, quash the same and direct the sixth appellant to fix the pension taking into account the respondent''s 50% service in Noon Meal Scheme and her entire service as B.T. Assistant and to pay pension and other terminal benefits. The respondent/petitioner joined the service as Child Welfare Organiser in a Noon Meal Centre on 01.07.1982 and continued her service till 28.02.2007. The Government conducted Special Written Test for absorbing the employees of Noon Meal Scheme as Teaching Staff in Government Schools. The respondent/petitioner appeared for the Special Test conducted by the Teachers Recruitment Board and she was appointed and joined duty on 01.03.2007 as Tamil Pandit in Government Higher Secondary School, Kullapuram, Theni District. She retired on 31.03.2009 on attaining the age of superannuation.
The respondent in W.A. (MD) No. 606 of 2014/petitioner in W.P. (MD) No. 7529 of 2011 filed the writ petition seeking issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to the impugned proceedings of the sixth appellant in Pen18/3/11803662/RTD/10-11/MNAR/172, dated 26.07.2010, quash the same and direct the sixth appellant to fix the pension taking into account the respondent''s 50% service in Noon Meal Scheme and her entire service as B.T. Assistant and to pay pension and other terminal benefits. The respondent/petitioner was appointed as Child Welfare Organizer in a Noon Meal Centre on 15.09.1982 and continued her service till 05.09.2006. The Government conducted Special Written Test for absorbing the employees of Noon Meal Scheme as Teaching Staff in Government Schools. The respondent appeared for the Special Test conducted by the Teachers Recruitment Board and she was appointed and joined duty on 06.09.2006 as B.T. Assistant (Geography) in Government High School, Udaiyanadu, Thanjavur District. The respondent retired on 31.03.2008 on attaining the age of superannuation.
The respondents in W.A. (MD) No. 1024 of 2014/the petitioners in W.P. (MD) No. 5316 of 2013 filed the writ petition seeking issuance of a Writ of Mandamus directing the respondents therein to count 50% of the respondents''/petitioners'' Noon Meal/ICDs services for pensionary benefits and to award pension. The respondents were originally appointed as Noon Meal Organizer in Schools and Child Welfare Organizer in Integrated Child Development Scheme (ICDS) by the competent authority from 1980 onwards. They have worked in Noon Meal Scheme and ICDS as Full Time Worker for very meager salary for more than 25 years. Subsequently, they were absorbed as B.T. Assistants, Rural Welfare Officers and Child Nutrition Supervisor and retired from services after serving only a few years in the regular Government service.
According to the respondents, as per Rule 11(2) of the Tamil Nadu Pension Rules, 1978 [hereinafter referred to as "the Rules"], 50% of the contingency services will be taken into account for the purpose of pension, if the employee is subsequently absorbed in regular service. The first appellant issued G.O. (Ms) No. 408, Finance (Pension) Department, dated 25.08.2009 and counted 50% honorarium, daily wages, consolidated pay and non-provincialised services. The employees served in Noon Meal Scheme and ICDS for more than 25 years and subsequently, absorbed in a regular Government service, made representations that 50% of their services must also be counted with their regular Government service for calculating their service for pensionary benefits. Considering their longstanding grievances, the then Hon''ble Chief Minister, on 21.11.2009, announced that 50% of Noon Meal and ICDS services will be taken into account for granting pensionary benefits.
Subsequently, the Government issued G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010 and ordered to count 50% of Noon Meal Scheme and ICDS services while calculating pension. The benefit granted by G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, was extended to some of the similarly placed persons like A. Renga Bai and Jannet, but the said benefit was not extended to all. The respondent in W.A. (MD) Nos. 587, 605 and 606 of 2014 and others filed W.P. (MD) Nos. 8287, 7070, 7529 and 8425 of 2011 respectively. The appellants filed counter affidavits and contested the same.
The respondents prayed for quashing the order of the Principal Accountant General (Accounts and Entitlements), Chennai and to fix the pension taking into account their 50% services in Noon Meal Scheme and their entire service as B.T. Assistant and pay pension and other terminal benefits.
According to the respondents, they were in continuous service for more than 25 years as full time workers and they were absorbed in regular Government Service and 50% of their earlier service have to be counted for the purpose of pension. According to them, G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, extended the benefit of 50% of their earlier service for calculating pension and there is no restriction or cut off date of regularization for counting 50% of their earlier services. As per Rule 11(2) of the Rules and G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, they are entitled to the benefit of counting 50% of their earlier service in Noon Meal and ICDS before they have absorbed in regular Government services. Their pension proposals were sent in view of G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, but the Office of the Principal Accountant General, Chennai returned those proposals stating that since they were absorbed only after 01.04.2003, 50% of their earlier services rendered by them in Noon Meal and ICDS in the non-pensionable post could not be counted. If 50% of the service rendered in non-pensionable service in Noon Meal Centre and ICDS is not counted for the purpose of pension, then they would not have minimum eligible pensionable service.
The learned Special Government Pleader for the appellants contended before the learned Judge that G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, extended the benefit granted in G.O. (Ms) No. 408, Finance (Pension) Department, dated 25.08.2009, to Noon Meal Organizers. It is further contended that as per G.O. (Ms) No. 408, Finance (Pension) Department, dated 25.08.2009, only persons absorbed in regular service before 01.04.2003 are entitled for counting 50% of their earlier service.
However, the learned Judge rejected the contentions of the appellants and held that the appellants ought to have waited for clarification sought for from the first appellant and ought not to have rejected the claim of pension by the petitioners therein.
Ultimately, the learned Judge, by order dated 27.06.2012, disposed of Writ Petition (MD) Nos. 8287, 7070, 7529 and 8425 of 2011, holding that G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, has specifically granted the benefit to the Noon Meal and ICDS workers. The argument of the first appellant that G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, extended the benefit only to the persons, who were absorbed before 01.04.2003, was rejected. Following the order, dated 27.06.2012, the learned Judge, by order dated 11.06.2013, allowed W.P. (MD) No. 5316 of 2013.
Aggrieved by the said orders, dated 27.06.2012 and 11.06.2013 respectively, the appellants have filed Writ Appeal (MD) Nos. 587, 605, 606 and 1024 of 2014.
The petitioner in W.P. (MD) No. 12689 of 2014 was appointed as Nutritious Meal Organizer in Holy Family Middle School, Mukkoottukal, Kanyakumari District, on 15.02.1985 on consolidated pay. From 01.01.1996 onwards, the petitioner was absorbed in regular service. Thereafter, she was appointed as B.T. Assistant in Government High School, Puvikuthi, Theni District, on 23.02.2007. She was relived from the post of Nutritious Meal Organizer on 28.02.2007 and joined duty as B.T. Assistant on 29.02.2007 and retired from service on 31.05.2013.
The contentions of the appellants:
The learned Additional Advocate General appearing for the appellants in all the writ appeals and the respondents 2 and 3 in the writ petition contended that;
(a) by G.O. (Ms) No. 408, Finance (Pension) Department, dated 25.08.2009, the first appellant ordered that the services rendered under State Government after 01.01.1961 before 01.04.2003 in honorarium, daily wages, consolidated pay and non-provincialised services, shall be counted for retirement benefits along with regular service subject to conditions;
(b) by G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, the first appellant ordered 50% services rendered under the nutritious meal programme/ICDS shall be counted for retirement benefits in respect of those employees, who were appointed as Teachers/Supervisor Grade-II and Rural Welfare Officers;
(c) by G.O. No. 41, Finance (Pension) Department, dated 09.02.2010, Rule 11 of the Rules was amended by including Rule 11(4). By this amended Rule, 50% of services rendered under State Government in honorarium, daily wages, consolidated pay and non-provincialised services rendered on or after 01.01.1961 to 01.04.2003, shall be counted for retirement benefits;
(d) from 01.04.2003, only Contributory Pension Scheme will be applicable for the persons appointed on or after 01.04.2003 and the Pension Rules are not applicable to those persons. They are not entitled to claim the benefits of G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, and G.O. (Ms) No. 408, Finance (Pension) Department, dated 25.08.2009;
(e) counting of 50% of service in honorarium, daily wages, consolidated pay and non-provincialised services would arise only if Pension Rules are applicable. The respondents have retired before 25.08.2009, when G.O. (Ms) No. 408, Finance (Pension) Department, dated 25.08.2009 was issued. The said Government Order and G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, have no retrospective effect;
(f) the first appellant clarified by G.O. (Ms) No. 34, Social Welfare and Nutritious Meals Scheme Department, dated 14.03.2013, that G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, is applicable to only persons, who were absorbed before 01.04.2003;
(g) the clarification by G.O. (Ms) No. 34, Social Welfare and Nutritious Meals Scheme Department, dated 14.03.2013 to G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, will come into force from the date of issuance and no addition or deletion was made to G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010. Further, it is not specifically stated as to whether it has retrospective or prospective effect.;
(h) all the respondents/writ petitioners were appointed in Government Service after 01.04.2003 and they are entitled only to contributory pension and the Pension Rule 11(4) is not applicable to them. Even though no cut off date has been mentioned in G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, it has to read in consonance with G.O. (Ms) No. 408, Finance (Pension) Department, dated 25.08.2009 and the Rules. Employees appointed before 01.04.2003 in Government Service are given the benefit of G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010 and they are getting pensions under the Rules;
(i) the learned Judge erred in holding that there is no restriction/cut off date in G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010 and in paragraph No. 1 of G.O. (Ms) No. 408, Finance (Pension) Department, dated 25.08.2009, extracted. The learned Judge failed to see that the benefit conferred under G.O. (Ms) No. 408, Finance (Pension) Department, dated 25.08.2009 only has been extended to the employees like the respondents. The learned Judge ought to have seen that in paragraph No. 1 of G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, G.O. (Ms) No. 408, Finance (Pension) Department, dated 25.08.2009, has been extracted and that benefit only was extended by G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010 with all the restrictions;
(j) the learned Judge erred in rejecting the contention of the appellants that consequent to G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, the Rules were not amended;
(k) taking into consideration the pathetic service conditions of the employees, the Government of Tamil Nadu decided to absorb them in regular services in the year 2006 by conducting one time special test. Pursuant to that, the services of the employees were regularised in the year 2009. The Hon''ble Chief Minister announced in the Assembly that Noon Meal employees would be entitled to pensionary benefits. Accordingly, G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, was issued holding that 50% of the services rendered as Noon Meal employees would be included for the purpose of pensionary benefits;
(l) originally, there was no provision to count the services rendered by the persons on honorarium, daily wages, consolidated pay and non-provincialised services. The first appellant took a policy decision to count 50% of the services rendered after 01.01.1961 and before 01.04.2003 for pensionary benefits, and accordingly, G.O. (Ms) No. 408, Finance (Pension) Department, dated 25.08.2009, was issued and Rule 11 of the Pension Rules was amended and Rule 11(4) was inserted. As per the said Rule, 50% of consolidated Honorarium Service will be counted along with the regular service subject to the condition that one must have been regularized and absorbed into regular service before 01.04.2003. The reason for the cut off date i.e., 01.04.2003 is that from that date contributory pension scheme came into force;
(m) 50% of service could be counted only if it was rendered on full time basis and should have been absorbed in regular post before 01.04.2003 without any break;
(n) subsequently, the first appellant extended the benefit available under Rule 11(4) of the Pension Rules to persons, who worked in Anganvadi and Noon Meal Centres and subsequently, appointed as Rural Welfare Officers. The first appellant issued G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, extending the benefit stipulated in G.O. (Ms) No. 408, Finance (Pension) Department, dated 25.08.2009 and amended Rule 11(4) of the Tamil Nadu Pension Rules;
(o) G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, is only supplementary to G.O. (Ms) No. 408, Finance (Pension) Department, dated 25.08.2009 and not an independent Government Order. G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, should be read along with G.O. (Ms) No. 408, Finance (Pension) Department, dated 25.08.2009;
(p) on misconception of G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, which is not an independent Government Order, proposals were sent to the sixth appellant. The sixth appellant, by his proceedings in DAG (Pension) P. 30/1-75/G.O. 408/2011-12, dated 16.11.2011, sought for clarification. When reply was pending before the first appellant, the sixth appellant received proposals from the respondents in all the writ appeals with a request to count their consolidated services. Since the reply of the first appellant was awaited, the sixth appellant returned the proposals. As against the same, the respondents in all the writ appeals filed writ petitions and the learned Judge allowed the same;
(q) the first appellant, by G.O. (Ms) No. 34, Social Welfare and Nutritious Meals Scheme Department, dated 14.03.2013, clarified that G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, applies to persons, who were absorbed before 01.04.2003. As on date, Rule 11(4) of the Pension Rules and G.O. (Ms) No. 34, Social Welfare and Nutritious Meals Scheme Department, dated 14.03.2013, are in force;
(r) the respondents in all the writ appeals are claiming pension on misconception, and hence, there is no vested right. As per G.O. (Ms) No. 34, Social Welfare and Nutritious Meals Scheme Department, dated 14.03.2013, only a clarification was issued and the right was not taken away by G.O. (Ms) No. 34, Social Welfare and Nutritious Meals Scheme Department, dated 14.03.2013;
(s) as per the Judgment of the Honourable Apex Court reported in Ekta Shakti Foundation Vs. Govt. of NCT of Delhi, , policy decisions of the Government cannot be interfered with, unless there is an infringement of fundamental rights;
(t) even if G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, is considered as an independent Government Order, the same cannot override Rule 11(4) of the Pension Rules. It is well settled principle of law that if any conflict arises between the Rule and the Government Order, the Rule alone will prevail; and
(u) the Judgments relied on by the learned counsel for the first respondent are not applicable to the present case. All the Judgments related to Rule 11(4) of the Pension Rules, which is applicable to contingent employees. The first respondent in all the cases, are not contingent employees.
In support of his contentions, the learned Additional Advocate General appearing for the appellants relied on the following Judgments:
(i) Ekta Shakti Foundation Vs. Govt. of NCT of Delhi, , wherein in paragraph No. 11, it has been held as follows:-
"11."5. While exercising the power of judicial review of administrative action, the court is not the Appellate Authority and ''[t]he Constitution does not permit the court to direct or advise the executive in [the matter] of policy or to sermonise qua any matter which under the Constitution lies within the sphere of the legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory powers''. (See Asif Hameed and others Vs. State of Jammu and Kashmir and Others, , M/s. Shri Sitaram Sugar Co. Ltd. and another Vs. Union of India and others,
The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or [is violative of] the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the court, it cannot interfere.
The correctness of the reasons which prompted the Government in decision-making taking one course of action instead of another is not a matter of concern in judicial review and the court is not the appropriate forum for such investigation.
The policy decision must be left to the Government as it alone can adopt (sic decide) which policy should be adopted after considering all the points from different angles. In the matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental rights is not shown the courts will have no occasion to interfere and the court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the court cannot interfere even if a second view is possible from that of the Government.
The Court should constantly remind itself of what the Supreme Court of the United States said in Metropolis Theater Co. v. City of Chicago 57 L Ed 730 : 228 US 61 (1912): (L Ed p. 734)
''The problems of Government are practical ones and may justify, if they do not require, rough accommodations,--illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not always discernible; the wisdom of any choice may be disputed or condemned. Mere errors of Government are not subject to our judicial review.'' "(See State of Orissa and Others Vs. Gopinath Dash and Others,
(ii) B. Premanand and Others Vs. Mohan Koikal and Others, , it has been held as follows:-
"27. In Mimansa, the literal rule of interpretation is known as the "Shruti" or "Abhida" principle. This is illustrated by the Garhapatya nyaya (in Mimansa maxims are known as "nyayas"). There is the Vedic verse: "Aindrya garhapatyam upatishthate", which means "by the mantra addressed to Indra establish the household fire". This verse can possibly have several meanings viz. (1) worship Indra, (2) worship garhapatya (the household fire), (3) worship both, or (4) worship either. However, since the word "garhapatyam" is in the objective case, the verse has only one meaning, that is, "worship garhapatya". The word "aindrya" means "by Indra", and hence the verse means that by verses dedicated to Indra one should worship garhapatya. The word "aindrya" in this verse is a linga (in Mimansa, linga means the suggestive power of a word), while the words "garhapatyam upatishthate" are the shruti. According to the Mimansa principles, the shruti (literal meaning) will prevail over the linga (suggestive power).
It is not necessary to go into details, but reference can be made to the book Mimansa Rules of interpretation by K.L. Sarkar which is a collection of Tagore Law Lectures delivered by him in 1909. According to the Mimansa principles, the Shruti principle or literal rule of interpretation will prevail over all other principles e.g. Linga, Vakya, Prakarana, Sthana, Samakhya, etc.
As a result of the above discussion, this appeal is allowed and the impugned judgment of the Full Bench of the High Court as also the judgment of the learned Single Judge are set aside and the writ petition filed by the private respondents before the High Court is dismissed. No costs."
(iii) T.N. Housing Board Vs. N. Balasubramaniun and Others, wherein in paragraph No. 6, it has been held as follows:-
"6. It is one thing to say that there exists no provision in the Regulations which would attract the rules specified in Regulation 28(a) or the instructions and rulings thereunder, but it is another thing to say that the instructions if implemented cannot be given effect to having regard to the consequences provided for in the extant Regulations, still the same would be applicable. We have noticed hereinbefore that for Junior Engineers and Draftsmen eligibility criteria have been laid down. It is not in dispute that the said eligibility criteria are mandatory in nature and the validity thereof had not been questioned. If a Draftsman is to be promoted to the post of Assistant Executive Engineer, he must complete 15 years of service in the said capacity, whereas the Junior Engineer may have to complete only 10 years in the said post. Once the eligibility criteria are considered to be a prerequisite for giving effect to the statutory Regulations, the purported executive instructions would not be applicable. Once it is held that relying on the basis of the executive instructions in terms of Regulation 28(a), the Draftsmen who have been getting higher salary are given preference over the diploma-holder Junior Engineers, the eligibility criteria contained in the statutory Regulations would become otiose; the logical corollary thereof would be that the executive instructions would prevail over the statutory Regulations. Such a consequence would lead to an absurdity and in that view of the matter it must be held that the executive instructions cannot be given effect to."
(iv) The President, Income Tax Appellate Tribunal Vs. Mr. A. Kalyanasundaram, The Union of India (UOI) and The Deputy Registrar, Central Adminstrative Tribunal, Chennai Bench, , wherein in paragraph No. 11, it has been held as follows:-
"11. Moreover, as already stated above, no G.O. or administrative order can override the statutory provision or statutory rule, vide Virender Singh Hooda and Others Vs. State of Haryana and Another, wherein the Supreme Court observed:-
"In law if an executive instruction is contrary to Statutory Rules, the Rules will prevail and not the executive instructions."
The same view has been taken in a large number of decisions of the Supreme Court e.g. T.N. Housing Board Vs. N. Balasubramaniun and Others, , etc."
Per contra, the learned counsel appearing for the respondents contended that;
(a) there is no restriction in G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, and all the employees absorbed even after 01.04.2003 are eligible for counting of 50% of their service rendered in Noon Meal Nutritious Scheme and ICDS. The respondents have vested interest and it cannot be taken away. The benefit given cannot be taken away by the Government Orders passed subsequently. Once the employee is absorbed in Government Service, the date of initial appointment is the date of the appointment and the first appellant cannot impose any cut off date i.e., 01.04.2003;
(b) in spite of G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, the proposals were returned in many cases. The employees of the Noon Meal Scheme filed several writ petitions and this Court held that as per G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, 50% of the services of Noon Meal employees should be reckoned. In some of the cases, the Government Order was also implemented by extending the benefits;
(c) to make the children study, Noon Meal Scheme was introduced. Appointments were made to provide nutritious meals to the children studying in Schools. The Noon Meal Employees rendered continuous service. Taking into consideration, the meager salary and pathetic condition, the first appellant decided to absorb them in regular service in the year 2006 by conducting one time special test. Pursuant to that, their services were regularized;
(d) the then Hon''ble Chief Minister of Tamil Nadu in 2009 announced in the Assembly that Noon Meal Employees would be entitled to pensionary benefits. Accordingly, G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010 was issued stating that 50% services of Noon Meal Employees would be reckoned. In some cases, the Government Order was implemented extending the benefits;
(e) G.O. (Ms) No. 34, Social Welfare and Nutritious Meals Scheme Department, dated 14.03.2013, was issued clarifying G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, stating that G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010 would be applicable only to those who were regularized prior to 01.04.2003 and Rule 11(4) of the Pension Rules are also referred to; and
(f) the employees have been given pensionary benefits under G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, and therefore, valuable right has accrued to them, and the same cannot be taken away by the subsequent Government Order.
In support of his submissions, the learned counsel for the respondents relied on the following Judgments:
(i) J.S. Yadav Vs. State of U.P. and Another, wherein in paragraph Nos. 22 and 29, it has been held as follows:-
"22. Thus, "vested right" is a right independent of any contingency. Such a right can arise from a contract, statute or by operation of law. A vested right can be taken away only if the law specifically or by necessary implication provide for such a course.
A Constitution Bench of this Court in Chairman, Railway Board and others Vs. C.R. Rangadhamaiah and others, dealt with the case where the pension admissible under the Rules in force at the time of retirement was reduced with retrospective effect. This Curt held such an action to be unreasonable and arbitrary being violative of Articles 14 and 16 of the Constitution of India. The Court observed as under:
"It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e.g., promotion or pay scale, can be assailed as being violative or Articles 14 and 16 of the Constitution to the extent it operates retrospectively.............
In many of these decisions the expressions "vested rights" or "accrued rights" have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant Rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the Rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution."
Thus, from the above, it is evident that accrued rights cannot be taken away by repealing the statutory provisions arbitrarily. More so, the repealing law must provide for taking away such rights, expressly or by necessary implication."
(ii) Chairman, Railway Board and others Vs. C.R. Rangadhamaiah and others, , wherein in paragraph Nos. 33 and 34, it has been held as follows:-
"33. It is no doubt true that on 5-12-1988 when the impugned notifications were issued, the rights guaranteed under Articles 31(1) and 19(1)(f) were not available since the said provisions in the Constitution stood omitted with effect from 20-6-1979 by virtue of the Constitution (Forty-fourth Amendment) Act, 1978. But Notifications Nos. GSR 1143(E) and GSR 1144(E) have been made operative with effect from 1-1-1973 and 1-4-1979 respectively on which dates the rights guaranteed under Articles 31(1) and 19(1)(f) were available. Both the notifications insofar as they have been given retrospective operation are, therefore, violative of the rights then guaranteed under Articles 19(1) and 31(1) of the Constitution.
Apart from being violative of the rights then available under Articles 31(1) and 19(1)(f), the impugned amendments, insofar as they have been given retrospective operation, are also violative of the rights guaranteed under Articles 14 and 16 of the Constitution on the ground that they are unreasonable and arbitrary since the said amendments in Rule 2544 have the effect of reducing the amount of pension that had become payable to employees who had already retired from service on the date of issuance of the impugned notifications, as per the provisions contained in Rule 2544 that were in force at the time of their retirement."
We have carefully perused the materials on record, the Judgments relied on by the learned Additional Advocate General appearing for the appellants and the respondents and considered the arguments of the learned Additional Advocate General appearing for the appellants in all the writ appeals and the respondents 2 and 3 in the writ petition and the learned counsel for the petitioner and the learned counsel for the respondents in the writ petition.
The issue to be decided is whether 50% of the services of the employees, who worked in Noon Meal Scheme and ICDS for number of years, has to be taken into account for calculating pensionary benefits, even when they are appointed in regular Government Service after 01.04.2003?
By G.O. (Ms) No. 408, Finance (Pension) Department, dated 25.08.2009, 50% of the services rendered by the employees worked in honorarium, daily wages, consolidated pay and in Government non-provincialised services, are permitted to be added to their Government Service, provided, they should have been regularised before 01.04.2003 and ought to have rendered the said service between 01.01.1961 and 01.04.2003. In view of the said policy decision, Rule 11 of the Pension Rules was amended by including Rule 11(4). As per this amended Rule, 50% of the services rendered by an employee in non-pensionable service, is included to calculate the eligibility and quantum of pensionary benefits, if he was absorbed in regular Government Service before 01.04.2003. The persons working in Noon Meal Nutritious Programme and ICDS, who were subsequently appointed as Teachers, made representations to extend the said benefit to them also. The first appellant considering the representations and recommendations of Director of Social Welfare, took a policy decision and extended the said benefit to the employees working in Noon Meal Programme and ICDS, subsequently who were appointed as Teachers, Rural Welfare Officer (Women), Supervisor Grade-II. Accordingly, G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, was issued in this regard. In the said Government Order, no condition or cut off date was mentioned. Therefore, the persons similarly placed like the respondents, contended that the persons, who were appointed in regular Government service after 01.04.2003 are also entitled to 50% of the services rendered in Noon Meal Programme and ICDS services. This proposal for pension was sent to the sixth appellant, who returned the same stating that the persons appointed after 01.04.2003, are not entitled to the benefit of counting 50% of services rendered by them in Noon Meal Programme and ICDS services. The respondent in W.A. (MD) Nos. 587, 605 and 606 of 2014 and others filed W.P. (MD) Nos. 8287, 7070, 7529 and 8425 of 2011 respectively, to quash the order of the sixth appellant and for issuance of a direction to take into account 50% of their services rendered in Noon Meal programme and ICDS services, for calculating the pensionary benefits.
The learned Judge considering G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, rejected the contentions of the appellants that the persons absorbed after 01.04.2003 are not entitled to the benefit of 50% of their services rendered in Noon Meal Programme and ICDS. The learned Judge also held that the sixth appellant ought to have waited for clarification from the first appellant as a clarification is sought for in this regard. We find that the learned Judge erred in the said conclusion.
A reading of G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010, reveals that in the first paragraph itself, the benefit of G.O. (Ms) No. 408, Finance (Pension) Department, dated 25.08.2009, has been extracted and in paragraph No. 2, it has been mentioned that the persons similarly placed like the respondents in the writ appeals have sought for the said benefit being extended to them also. The Director of Social Welfare recommended their request. Based on the representation and the recommendation of the Director of Social Welfare, the first appellant had extended the said benefits to the respondents and similarly placed persons like them. As the benefit contained in G.O. (Ms) No. 408, Finance (Pension) Department, dated 25.08.2009, has been extended to the respondents and others, the conditions contained in G.O. (Ms) No. 408, Finance (Pension) Department, dated 25.08.2009 would also apply to G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010. By G.O. No. 41, Finance (Pension) Department, dated 09.02.2010, the first appellant amended Rule 11 of the Rules and thereby included the benefit rendered in G.O. (Ms) No. 408, Finance (Pension) Department, dated 25.08.2009. Further, by G.O. (Ms) No. 34, Social Welfare and Nutritious Meals Scheme Department, dated 14.03.2013, the first appellant clarified that the persons, who got appointed before 01.04.2003 only are entitled for counting 50% of their services rendered in Noon Meal Organizers and ICDS, for pensionary benefits.
The Judgments referred to by the learned counsel for the respondents are not applicable to the facts of the present case. Various Judgments of this Court referred to by the learned counsel for the respondents only related to the regularization of persons, who were initially appointed in the same Department, and therefore, this Court held that their regularization relates to their original date of appointment. In the present case, concession was granted to the persons, who worked in Noon Meal Programme as well as in ICDS services to be appointed as Teachers/Supervisor Grade-II and Rural Welfare Officers. They were directed to write a test and only successful persons were appointed as Teachers/Supervisor Grade-II and Rural Welfare Officers. Therefore, the Judgments relied on by the learned counsel for the respondents relating to regularization of persons, who worked for number of years in the same Department, cannot be applied to the facts of the present case.
The learned Additional Advocate General appearing for the appellants contended that the respondents do not have any vested right for taking into account 50% of their services rendered earlier. According to the learned Additional Advocate General, the respondents retired long before 25.08.2009, when G.O. (Ms) No. 408, Finance (Pension) Department, dated 25.08.2009 came into force. We could see considerable force in the said contention. He further argued that the reason for fixing the cut off date before 01.04.2003, is that from 01.04.2003, new pension scheme (CPS) was introduced. The Pension Rules are not applicable to the persons appointed on or after 01.04.2003.
A combined reading of G.O. (Ms) No. 408, Finance (Pension) Department, dated 25.08.2009; G.O. (Ms) No. 6, Social Welfare and Nutritious Meals Scheme Department, dated 06.01.2010; G.O. No. 41, Finance (Pension) Department, dated 09.02.2010; and G.O. (Ms) No. 34, Social Welfare and Nutritious Meals Scheme Department, dated 14.03.2013 and Rule 11(4) of the Pension Rules would clearly reveal that the respondents are not entitled to the benefit of counting of 50% of their services rendered in Noon Meal Programme and ICDS services. Accordingly, we are of the considered opinion that the orders passed by the learned Single Judge, warrant interference at the hands of this Court.
In the result,
(i) all the Writ Appeals in W.A. (MD) Nos. 587, 605, 606 and 1024 of 2014 are allowed and orders of the learned Judge are set aside and the writ petitions are dismissed; Consequently, connected miscellaneous petitions are closed;
(ii) In view of the same, W.P. (MD) No. 12689 of 2014 also fails and the same is dismissed; and
(iii) There shall be no order as to costs, in all the cases.