AI Structured Summary
Not yet generated for this judgment
Judgment
R. Banumathi, J.—Petitioner seeks Writ of Mandamus to grant pension to the Petitioner by counting 50% of service rendered by the
Petitioner between 26.7.1979 and 11.11.1997 as part time Vocational Instructor along with regular service rendered by the Petitioner between
12.11.1997 to 30.6.2004 in the cadre of Vocational Instructor Gr-II together with interest at the rate of 9% p.a.
Briefly stated case of the Petitioner is as follows:
(i) Petitioner was initially appointed as part time Vocational Instructor between 26.7.1979 and 11.11.1997 at S.R.M. Govt. Girls Higher
Secondary School and Petitioner was teaching Office Secretaryship, Accountancy and Auditing. Subsequently, Petitioner was brought into time
scale of pay w.e.f. 12.11.1997 and the same was approved by the Chief Education Officer, Tirunelveli in Proceedings Roc. No. 20401/B2/99
dated 31.3.2000. From 12.11.1997, Petitioner was working as regular teacher in the 4th Respondent''s school till her retirement on 30.6.2004.
(ii) When the pension proposals were sent to the Accountant General''s Office, it was noticed that Petitioner had served as part time Instructor
prior to 12.11.1997 and her services were brought into time scale of pay w.e.f. 12.11.1997. As part time services do not qualify for pension, the
pension proposals were returned for submission of a revised proposal without counting the part time service.
(iii) Proposals were again forwarded by the 4th Respondent to the Accountant General''s Office. Regular service from 12.11.1997 to 30.6.2004
i.e. the date of superannuation was considered as qualifying service. As per Rule 43(2) of Tamil Nadu Pension Rules, qualifying service less than
10 years will not earn pension. As the qualifying service of the Petitioner worked to less than 10 years, Petitioner was authorised Service Gratuity
and DCRG only.
(iv) On the plea that 50% of part time service from 26.7.1979 to 11.11.1997 has to be taken into account as qualifying service, Petitioner has
preferred this Writ Petition.
Resisting the Petition, 5th Respondent has filed counter stating that as per Rule 12 of Tamil Nadu Pension Rules, the services of a Government
servant shall not qualify for pension unless his duties and pay are regulated by the Government or conditions determined by the Government. It is
averred that as per Govt. Memo No. 64415/31/75-5 dated 04.9.1976, part-time Instructors, whether they are qualified or not, are not eligible for
pension. Case of the 5th Respondent is that admissible pensionary benefits for the full time service from 12.11.1997 to 30.6.2004 have already
been authorised by the 5th Respondent on 28.9.2004 and therefore, Petitioner is not eligible for any further pensionary benefits.
Mr. V. Suthakar, learned Counsel for the Petitioner has drawn Court''s attention to G.O.Ms. No. 437 Finance dated 23.6.1988 and G.O.Ms.
No. 349 Finance dated 05.5.1995. The above Government Orders refer only to part-time and contingent establishment and cannot be invoked by
the Petitioner.
On behalf of the Petitioner, reliance was placed upon G.O.Ms. No. 834 Education dated 23.9.1994 whereby 1387 post of Vocational
Instructors on regular time scale of pay of Rs. 1400-40-1600-50-2300-60-2600 were created w.e.f. 23.9.1994. As per the said G.O., 1387
post of Vocational Instructors shall be filled by qualified part time teachers according to their seniority.
On behalf of the Respondents, learned AGP submitted that as per Rule 43(2) of Tamil Nadu Pension Rules, qualifying service less than 10 years
will not earn pension. It was further submitted that as the qualifying service of the Petitioner is less than 10 years, she is not eligible for pension.
Heard Mr. T. Ravikumar, learned Counsel for the Accountant-General. Learned Counsel for 5th Respondent would also submit that Petitioner
worked less than 10 years and she was not eligible for pension and therefore, she was authorised Service Gratuity and DCRG only. Learned
Counsel for the 5th Respondent further submitted that nowhere in the Government Orders, it is stated that part-time service could be taken into
account for calculating the pensionable service.
Petitioner has filed additional affidavit stating that from 23.9.1994, Petitioner was asked to attend the work for full time period. Petitioner has
further averred that from 23.9.2004, she worked for 32 periods (every week) and she had taken classes. Learned Counsel for the Petitioner
therefore would submit that period of service of the Petitioner has to be taken into account from 23.9.1994. If the period of service is taken from
23.9.1994, Petitioner has completed 9 years, 9 months and 7 days. As per Rule 43 (3) of Tamil Nadu Pension Rules, 9 months may be construed
as one year.
Rule 43(3) of TN Pension Rules reads as under:
Rule 43(3): In calculating the length of qualifying service, fraction of a year equal to (three months) and above shall be treated a completed one half
year and reckoned as qualifying service.
Nine months to be construed as six months plus three months. Three months shall be construed as one half year for the purpose of calculating the
qualifying service and therefore, Petitioner has 10 years of eligible pensionary service.
Learned Counsel for the Petitioner had also drawn attention of the Court to the order passed by the Administrative Tribunal in O.A. No.
6931/1996. In the said order reference was made to G.O.Ms. No. 693 Public Works (HM.2) Dept. dated 22.8.1994 wherein the Government
had directed that non-provincialised service under work charged establishment rendered by all the work charged personnel of Public Works and
Highways Departments, whose services are provincialised or brought into regular establishment be counted for calculation of pension. In the said
case, Tribunal referred to the above said G.O.Ms. No. 693 Public Works (HM.2) Dept. dated 22.8.1994 and applied the underlying principle for
taking into account the service rendered by the part-time clerk in Parangipettai panchayat Union along with his service as Revenue Assistant in
Chidambaram Municipality for working out his pension. Applying the ratio of the said decision, in my considered view, Petitioner having rendered
part-time service from 26.7.1979 to 11.11.1997 even if 50% of the same is taken into account, Petitioner would be eligible to get the pension.
As per Rule 82 of Tamil Nadu Pension Rules any department of the Government is satisfied that the operation of any of the Pension Rules
causes under hardship in any particular case, the department may relax the requirements of that rule to such extent and subject to such exceptions
and conditions as it may consider necessary for dealing with the case in a just and equitable manner. Provided that no such order shall be made
except with the concurrence of the Finance department. Petitioner rendered blemishless part-time service from 26.7.1979 to 11.11.1997.
Having regard to the facts and circumstances of the case and the averments made in the additional affidavit, service may be taken into account
from 23.09.1994 and therefore, Petitioner has completed the service of 9 years, 9 months and 7 days. Applying Rule 43(3) of TN Pension Rules,
9 months is to be construed as 1 year. Therefore, Petitioner''s qualifying service is to be calculated as 10 years, so as to make her eligible for
pension.
In the result, the Writ Petition is disposed of with the following direction:
� Respondents 1, 2 & 4 are directed to grant Pension to the Petitioner by taking her length of qualifying service as 10 years (calculated from
23.9.1994 to 30.6.2004).
� Respondents 1, 2 & 4 shall process the Pension paper within a period of three months from the date of receipt of copy of this order.
� On receipt of pension papers, 5th Respondent shall authorise the pension within a period of two months from the date of receipt of pension
papers from the Respondents 1 to 3.
� It is made clear that the above order is passed in the special facts and circumstances of this case and this order may not be quoted as
Precedent in other cases.
No costs.