P. Kodirathinam vs The Director of Family Welfare Bureau and The Joint Director of Health Services

N. Paul Vasanthakumar, J.—The relief sought for in this writ petition is to direct the respondents to regularise the services of the petitioner in

the post of Family Welfare Assistant with effect from his original date of appointment and consequently grant pension and other terminal benefits

with arrears and interest.

The facts of the case are that the petitioner was an Ex Serviceman and after returning from the military service, he joined as Family Welfare

Assistant in the Government Hospital, Tindivanam on 17.4.1971 . On 21.9.1976 he was admitted in the Tanjore Medical College Hospital and

was under continuous treatment and hence he had applied for medical leave. After expiry of the medical leave, the petitioner had received a

telegram from the hospital and subsequently he had submitted his resignation on 15.10.1976 to the Tindivanam Government Hospital. As he had

not received any reply as to whether his resignation was accepted or not, the petitioner made a representation to the concerned authority. The

District Medical Officer by his letter dated 28.4 .1981 directed the petitioner to produce the original certificates and accordingly the petitioner

produced all his original certificates and even thereafter, there was no reply. In the affidavit it is stated that the second respondent by his letter in

ROC No.8483/N5/96, dated 27.9.1996, directed the Medical Officer to inform as to whether the resignation of the petitioner was accepted or

not. It is further stated in the affidavit that the first respondent on 27.8.1996 sent a letter to the Chief Minister''s Cell stating that appropriate reply

will be given to the petitioner after receiving communication from the second respondent, but till date no reply has been received by the petitioner.

Hence this petition seeking the above referred relief.

Counter affidavit has been filed by the respondents, wherein it is stated that the petitioner joined duty as Family Welfare Worker ( subsequently

redesignated as Family Welfare Assistant) on temporary basis on 17.4.1971 at the Government Hospital, Tindivanam and applied for leave stating

that he was taking treatment at the Tanjore Medical College Hospital with effect from 21.9.1976 and furnished medical certificate for the period

from 1.10.1976 to 31.10.1976. The then District Medical Officer, Cuddalore, instructed the petitioner to join duty forthwith by telegram dated

13.10.1976, but instead of joining duty, he had submitted his resignation letter on 15.10.1976 to the Government Hospital, Tindivanam. The

petitioner was thereafter instructed to furnish necessary declaration in the prescribed format under FR.41 to accept his resignation, which he did

not comply with. The petitioner stayed away from duty since 31.10.1976 without applying for extension of leave and also without confirming his

resignation in the prescribed format, as required by the Department, till his application dated 9.1.1997, wherein the petitioner requested for

sanction of pension, DCRG, etc. According to the respondents, the said conduct of the petitioner establishes the fact that the petitioner had not

joined duty after the period of leave on medical grounds reported to have been applied for, nor made any efforts to get postings from October,

197 6 to January, 1997, i.e., for over twenty years. It is further stated that the petitioner''s date of birth is 25.7.1938 and if he had continued in

service, he would have retired on superannuation on 31.7.199 6 itself. Petitioner neither preferred any application before the Directorate nor

before the Tribunal for regularisation of his service. Petitioner filed the original application before the Tribunal, seeking regularisation of services and

to sanction pension and other terminal benefits, only after the date of his presumptive retirement. It is further stated that since the petitioner

tendered his resignation while he was on temporary service, and stayed away from duty from 21.9.1976 onwards till his presumptive date of

retirement i.e., 31.7 .1996, he had rendered temporary service of only five years and therefore he is not entitled for any pensionary benefits,

according to pension rules, which require minimum ten years of completed service.

The learned counsel appearing for the petitioner argued based on the averments made in the affidavit and prayed for regularisation of services of

the petitioner in the post of Family Welfare Assistant with effect from the original date of his appointment and prayed for direction to the

respondents to grant pensionary and other terminal benefits with arrears and interest thereon.

The learned counsel appearing for the respondents replied based on the contentions made in the counter affidavit, as stated supra.

I have considered the rival submissions made by the respective parties. It is the admitted case of the petitioner that he served in the respondent

department only for five years i.e., from 17.4.1971 to 21.9.1976 and after that he had submitted his resignation on 15.10.19 76 to the Medical

Officer, Government Hospital, Tindivanam. It is not the case of the petitioner that at any point of time he withdrew from his proposal of resignation.

The case of the respondents is that though the resignation letter dated 15.10.1976 was received by the Department, the petitioner was asked to

submit a declaration in the prescribed format under FR.41, which he did not comply with. Admittedly, the petitioner did not report to duty after

31.10.1976 till 31.7.1996, the date on which he would have been superannuated. Since the petitioner had not worked during the said period, even

according to the petitioner, his prayer for regularisation of service from the date of his appointment i.e., from 17.4.1971 is unsustainable. It is well

settled law that the relief of regularisation of service is available only to the person who are continuously in service. Here, in this case, admittedly

the petitioner worked only for five years and not reported to duty from 21.9.1976, i.e, for over twenty years prior to his presumptive date of

retirement on 31.7.1996.

At this juncture, it would be relevant to quote Rule 43(2) of the Tamil Nadu Pension Rules, 1978, which reads as under,

In the case of a Government Servant, retiring in accordance with the provisions of these rules after completing qualifying service of not less than 10

years, the amount of pension shall be appropriate amount as set out ....

In the case on hand, admittedly the petitioner had served only for five years and he had not even completed the minimum qualifying service of 10

years as required under Rule 43(2) referred above. Hence the petitioner is not entitled to get pensionary benefits as claimed in the petition.

In view of the above findings, there is no merit in the writ petition and the same is accordingly dismissed. No costs. It is however made clear that

if the petitioner is entitled to any other benefits as per the rules, it is open to the petitioner to make a representation before the concerned authority

and the same shall be considered by the authority concerned on its own merit and in accordance with law, within a period of three months from the

date of such representation.