K.V. Subbiah Pillai and Another vs The State of Madras

K. Veeraswami, C.J.—The Appellant was an Executive Officer when he reached his superannuation on January 16, 1959. At the

recommendation of the Board of Trustees of Sri Subrahmanyaswamy Devasthanam, Tiruchendur, where he was serving as Executive Officer, the

Government by G.O. Rt. No. 25, Revenue, dated January 16, 1959 permitted his re-employment for a period of one year from January, 17,

1959. In doing so, the Government has expressly stated that it exercised its powers conferred by Rule 21 in Part 1 of the rules framed u/s 100(2)

(p) and (x) (ii) of the Hindu Religious and Charitable Endowments Act, 1951. The order communicated to the Appellant by the Commissioner,

Hindu Religious and Charitable Endowments, stated:

Continue service orders follow inform Periyanayagam

The Appellant served for one year and than retired. His request for pension was refused. No reasons were given by the Government except the

bald statement that pension could not be granted. Kailasam J., declined to interfere and dismissed the Appellant''s petition.

There is no controversy that the Appellant was a Government servant as on January 16, 1959, in terms of Section 12(1) of Madras Act XXII

of 1959, which came into force on January 1, 1960. The Appellant claimed pension on the basis that he continued to serve government as a

government servant and retired only from January 17, 1960, and that being the case, he was entitled to pension as provided by the Act and the

rules framed thereunder. Section 12(1) says that for the purposes of the Act shall be servants of the Government and their salaries, allowances,

pensions and other remuneration shall be paid in the first instance out of the Consolidated Fund of the State. As provided by Section 12(2)(c)(i),

for the purpose of pension or other remuneration payable to an Executive Officer serving immediately before the date of the commencement of the

Act and retiring after that date, the Government may take into account the service of such officer before that date, subject to such conditions as

may be prescribed. It is clear, therefore that if the Appellant as an Executive Officer served Government immediately before the date of the

commencement of the Act, namely, January 1, 1960, he would not only be entitled to pension, but the Government in computing the pension

should take into account the service of such officer before that date subject, of course, to the conditions prescribed by the rules. The only rule to

which our attention was invited is Rule 4, which is to the effect that every Executive Officer, who was serving immediately before the 1st January

1960 and who retired after that date after having put in qualifying service for the purposes of pension, shall be eligible with effect from the date of

his retirement from service of the Government for pension under the Civil Service Regulations, or pension and gratuity under the Tamil Nadu

Liberalised Pension Rules, 1960, as in the case of other civil servants, as if he entered the service of the Government on the date of his first

appointment as such Executive Officer.

In view of the statutory provisions and the rules, the crucial question to consider is whether the Appellant was a government servant who served

the Government as such on the date of the commencement of the Act and retired after that date. The contention for the State is that the Appellant

was but re-employed, as was stated specifically in the order of the Government aforesaid, and that being the case, he could not have been

considered as serving the Government on the date, the Act came into force and retired after that date. We have no hesitation in rejecting this

contention. The power under Rule 21 above referred to is one for retention of service. The rule itself contains indication that this was the intention.

Rule 21, no doubt, begins by saying that the date of compulsory retirement of an Executive Officer shall be the date on which he attains the age of

55 years. Having said that the same rule provides for retention of an Executive Officer''s service after that date, if that was necessary in public

interest. The rule further clarifies that such an order of retention would be one of extension of service. There can be no extension of service in the

case of superannuation having already taken effect. Re-employment, of course, is a different thing which would not ensure continuity. The

expressions extension and retention point to the fact that what was intended by the rule is continuity of service without a break, and that is why the

rule prescribes another ceiling for superannuation namely, 60 years subject, of course, to the condition that each extension shall not be for more

than a year. We are therefore of the opinion that except the fact that Government in their order have stated that the Appellant was re-employed, in

as much as it was done under the power conferred by Section 21 , there can be no doubt that what was done in the case of the Appellant was

retention of his service, and therefore, there was continuity of his service or extension of his service. That being the case, the Appellant was a

Government servant on January 1, 1960, and he retired on January 17, 1960. That means he fulfils the requirements of Section 12(2)(c)(1) and

also Rule 21 and Rule 4 we have above referred to.

It follows that the Appellant is entitled to pension and gratuity. The case of the Appellant in Writ Appeal No. 211 of 1968 is similar. He too will

be entitled to pension and gratuity.

The appeals are allowed with costs in each of them