N. Nallakannu vs Secretary to Government Finance (CA) Department and Director Co-operative Audit

D. Hariparanthaman, J.—The Petitioner joined as Assistant Supervisor on temporary basis in the Industries and Commerce Department on

29.01.1964 and served upto 28.02.1970. Thereafter, he was selected as Junior Assistant through Tamil Nadu Public Service Commission and

allotted to Superintending Engineer, Public Works Department on 02.03.1970. He served in Public Works Department from 02.03.1970 to

14.09.1971. He was again selected through Tamil Nadu Public Service Commission as Junior Inspector in Co-operative Department. So he

resigned the post of Junior Assistant on 14.09.1971 in Public Works Department and joined in the Co-operative Department. He retired from

service on 30.11.1999 on reaching the age of superannuation. He was paid pension for his service from 15.09.1971 to 30.11.1999. His grievance

is that the service rendered between 29.01.1964 and 28.02.1970 and 02.03.1970 and 14.09.1971 should also be counted for the purpose of

pension. Hence, he has filed the present petition, when the same was declined by the impugned order.

The Respondents filed counter affidavit stating that since the Petitioner resigned the post in Public Works Department, he forfeited his service for

all purposes, as per Rule 41 of the Tamil Nadu State and Subordinate Services Rules.

The learned Counsel for the Petitioner relies on Rule 23 of Tamil Nadu Pension Rules, 1978 and submits that the period between 02.03.1970

and 14.09.1971 has to be counted for terminal benefits as per proviso to Rule 23 of the Tamil Nadu Pension Rules, 1978. Further, he heavily

relies on the Government Order in G.O. Ms. No. 408 Finance (Pension) Department, dated 25.08.2009 for the purpose of counting temporary

services rendered by the Government employees. The learned Counsel also relies on the Division Bench judgment of this Court reported in (2009)

3 MLJ 1 0 0 5 (D.VIJAYARANGAN v. SECRETARY, SALES TAX APPELLATE TRIBUNAL).

On the other hand, the learned Special Government Pleader has strenuously contended that the Petitioner is not entitled to the benefit as stated

above, since he resigned the job and as per Rule 41 of the Tamil Nadu State and Subordinate Service Rules, the Petitioner is not entitled to the

relief which he has claimed for.

I have considered the submissions made on either side.

As far as the service rendered between 29.01.1964 and 28.02.1970, it is covered by G.O. Ms. No. 408 Finance (Pension) Department, dated

25.08.2009. In the afore-said Government Order, the Government has stated that 50% of the temporary services would be counted for terminal

benefits and this would apply to employees, who joined after 01.01.1961 and became permanent before 01.04.2003. Thus, the Government

Order squarely applies to the Petitioner and the Respondents should count 50% of the service rendered by the Petitioner between 29.01.1964 and

28.02.1970 as temporary employee.

The next issue as to whether the services rendered from 02.03.1970 to 14.09.1971 as regular employee in Public Works Department before he

joined in the Co-operative Department on 15.09.1971 could also be counted for the purpose of terminal benefits?

The learned Special Government Pleader relies on a judgment of this Court reported in M A N U/TN/1 1 7 5/2 0 1 0 (A. `PUGALENTHY v.

THESE CRETARY TO GOVERNMENT HOME POLICE (xv) DEPARTMENT AND ANOTHER). The said judgment does not apply to the

facts of the present case. In that case, the concerned Government employee left the Government services and joined different services. Hence, the

said judgment is not applicable to the facts of the present case.

The learned Special Government Pleader relies on Rule 41 of the Tamil Nadu State and Subordinate Service Rules, which is extracted

hereunder:

Consequences of resignation - A member of a service shall if he resigns his appointment, forfeit not only the service rendered by him in the

particular post held by him at the time of resignation but all his previous service under the Government.

The reappointment of such person to any service shall be treated in the same way as a first appointment to such service by direct recruitment and

all rules governing such appointment shall apply; and on such reappointment he shall not be entitled to count any portion of his previous service for

any benefit or concession admissible under any rule or order;

Provided that nothing contained in this rule shall effect the operation of proviso to Rule 23 or Rule 25 of the Tamil Nadu Liberalised Pension Rules,

1978.

The afore-said Rule makes it clear that the Rule 41 could not be invoked, if proviso to Rule 23 of the Tamil Nadu Pension Rules, 1978 is

applicable. Rule 23 of the Tamil Nadu Pension Rule is extracted hereunder:

Forfeiture of service on resignation - (1) Resignation from a service or post entails forfeiture of past service:

Provided that a resignation shall not entail forfeiture of past service it has been submitted to take up with proper permission, another appointment,

whether temporary or permanent, under the Government where service qualifies.

(2) Interruption in service in a case falling under the proviso to Sub-rule (1), due to the wo appointments being at different stations, not exceeding

the joining time permissible under the rules of transfer, shall be covered by grant of leave of any kind due to the Government servant on the date of

relief or by formal condonation to the extent to which the period is not covered by leave due to the Government servant.

The proviso to the afore-said Rule makes it clear that the resignation shall not entail forfeiture of past service, if it has been submitted to take up

any appointment with prior permission. Admittedly, the Petitioner was recruited through Tamil Nadu Public Service Commission. While he was

serving in the Public Works Department, he submitted his resignation letter to the Executive Engineer to take up the employment with the Co-

operative Department on 14.09.1971. He joined the Co-operative Department on 15.09.1971. Thus, it should be taken that the Petitioner is

entitled to the proviso of Rule 23 of the Tamil Nadu Pension Rules. In fact, the Division Bench of this Court has interpreted Rule 23 of the Tamil

Nadu Pension Rules in such a way to grant the terminal benefits if a person resigned on the ground of ill health, though such a contingency is not

provided in the Rule. Hence, I am of the view that based on the proviso to Rule 23 of the Tamil Nadu Pension Rules, and the decision of the

Division Bench, the Petitioner is entitled to succeed. Accordingly, the impugned order is quashed and the Respondents are directed to refix the

retiral and pensionary benefits of the Petitioner by taking into account 50% of past service of the Petitioner during the period between 29.01.1964

and 28.02.1970 and full service between 02.03.1970 and 14.09.1971 as per Rules and Government Order. The writ petition is allowed to the

extent indicated above. No costs.