(Prayer: Writ Petition is filed under Article 226 of the Constitution of India for issuance of writ of certiorarified mandamus calling for the records of the impugned order passed by the 4th and 5th respondents, dated 05.03.2007, bearing Letter No.14164/Na.Pa.1/06-1 and 22.03.2007, bearing Na.Ka.No. 69764/2005/K2 respectively and quash the same and direct the respondents to calculate the petitioner's period of service as 29 years for calculation the petition and all other retirement benefits and consequently to pay a sum of Rs.32,000/-, which was recovered from the petitioner's salary towards the closure compensation paid by the 2nd respondent.)
1. The writ petitioner was originally employed in Arakonam Steel Industry, which is a Public Sector Undertaking of the Government of Tamil Nadu and an unit of T.I.D.C.O. He was working from the year 1974 till the closure of the company i.e. 31.08.1998. It is stated by the petitioner that by way of G.O.No. 222, dated 16.06.1998, G.O.No.524, dated 21.01.1998 and G.O.No.623, dated 22.09.1998, the employees of Arakonam Steel Industry were asked to give voluntary retirement. Individual relieving orders, dated 31.01.1998, were given to the respective employees and service certificates were also issued to them. In view of the non-employment, a sum of Rs.2,00,000/- was given to the individual employees towards compensation. The petitioner was relieved from service with effect from 31.08.1998.
2. Further, it is stated that after a period of six months i.e. on 24.02.1999, the petitioner got a communication appointing him as a Junior Assistant under the fifth respondent and thereafter, he was posted at the office of the sixth respondent. Since the petitioner was given employment, a portion of the compensation granted to him was sought to be deducted, which was challenged by him before this Court, in W.P.No.5002 of 1999, and this Court, by order dated 13.09.2006, has struck down the order directing deduction of compensation. Thereafter, the petitioner has made a representation to the respondents 5 and 6 requesting to take into account the period of service rendered by him in Arakonam Steel Industry and further requested that he may be paid pension taking into account the past service rendered by him in the previous establishment and the fourth respondent, to whom the petitioner's representation was forwarded, rejected the request of the petitioner, vide letter No.14164/Na.Pa.1/06-1, dated 05.03.2007.
3. The learned counsel appearing for the sixth respondent would state that the petitioner was employed in Arupukottai Municipality as a fresh entrant and as per G.O.No.524, dated 21.08.1988, his service rendered in the previous employment cannot be taken into account and he will be treated only as a fresh entrant, in view of the alternative employment given to him and hence, he is not eligible for pension.
4. Heard both sides.
5. The learned counsel appearing for the petitioner would draw the attention of this Court to G.O.Ms.No.118, Finance (Pension) Department, dated 14.02.1996, and would submit that the Government of Tamil Nadu, by virtue of the said Government Order, ordered counting half of the service rendered under non-pensionable establishment along with regular service under pensionable establishment for pensionary benefits.
6. Admittedly, the writ petitioner was originally employed in a nonpensionable establishment and rendered more than two decades of service there. Thereafter, alternative employment was given to him in a pensionable establishment, namely, Municipal Administration Department of Government of Tamil Nadu, where he had put in 4 years of service. The Government Order, referred to above, has set down the following three conditions for counting half of service under non-pensionable establishment and if the petitioner fulfills those three conditions, half of service rendered by him in a non-pensionable establishment can be counted:
i. Services under non-pensionable establishment should have been in a job involving whole time employment.
ii. The service under non-pensionable establishment should have been on time scale of pay.
iii. The service under non-pensionable establishment should have been continuous and followed by absorption in pensionable establishment without a break.
7. In an idential case, this Court, vide order dated 03.07.2012 in W.P.No.11215 of 2012, directed the Government to count half of the service rendered by the employee in a non-pensionable establishment, as per G.O.Ms.No.118, dated 14.02.1996 and to consider sanctioning of pension. The said order is extracted hereunder:
The prayer in the writ petition is to issue a writ of mandamus directing the respondents to treat the shortage of 6 months 26 days in the last year of service i.e., 10th year of service in the Municipality as a full year for the purpose of calculating the pension and consequently direct the respondents to process the pension papers and pay the pensionary benefits to the petitioner from the date of retirement.
2. Petitioner was originally appointed as a Furnace Helper in the Tamil Nadu Steels Limited (now under liquidation) in the year 1973. The said company was closed down by the Government of Tamil Nadu in the year 1998 vide G.O.Ms.No.222, dated 16.6.1998. According to the petitioner he had completed 25 years of service in the said company and at the time of closure of the Company petitioner was working as a Chargehand. Subsequenty the Government of Tamil Nadu passed G.O.Ms.No.524, dated 21.8.1998 wherein the Government decided to absorb the employees of Tamil Nadu Steels Limited in other Public Sector Undertakings including State Transport Corporation and Local Bodies. Accordingly, petitioner was absorbed in the Kancheepuram Municipal Office as a Junior Assistant by order dated 26.2.1999 and retired on 31.7.2008.
3. Now, the grievance of the petitioner is that his earlier services of 25 years rendered in Tamil Nadu Steels Limited was not considred for calculating pension. According to the petitioner, as per G.O.Ms.No.118 Finance (Pension) Department, dated 14.2.1996, half of the services rendered in non-pensionable establishment shall be counted along with the regular services rendered in the pensionable establishment.
4. The petitioner has submitted a representation dated 12.8.2011 to the respondents and the respondents neither granted pension nor sent reply to the petitioner.
Hence, the petitioner has filed this writ petition with the above prayer.
5. The Government took a policy decision through G.O.Ms.No.118 Finance (Pension) Department, dated 14.2.1996 and paragraphs 2 and 3 of the order reads as under,
2. The Government have examined the question of extending the concession ordered in the G.O.First read above to the case of Government employees who were borne on non-pensionable establishment and subsequently brought into pensionable establishment and have decided to count half of the service rendered under nonpensionable establishment along with service under pensionable establishment for pensionary benefits. They accordingly direct that half of the service rendered by State Government employees under non-pensionable establishment shall be allowed to be countered for pensionary beneits along with regular service under pensionable establishment subject to the following conditions:
i) Service under non-pensionable establishment should have been in a job involving whole time employment.
ii) The service under non pensionable establishment should have been on time scale of pay.
iii) The service under non-pensionable establishment should have been continuous and followed by absorption in pensionable establishment without a break.
3. These orders shall take effect from the date of this G.O. In respect of those who retired prior to the date of this order eligible pension or revised pension, as the case may be, shall be paid from the date of this order and that there can be no claim for arrears in any case for the period upto the date of this order.
6. In view of the above Government Order, which clearly states that half of the service rendered in nonpensionable establishment is entitled to be counted along with the services rendered in pensionable establishment for pensionary benefits, the petitioner is entitled to the relief sought for.
7. In the result, the writ petition is allowed. The first respondent is directed to consider the representation of the petitioiner dated 12.8.2011 and pass orders taking note of G.O.Ms.No.118 dated 14.2.1996 within a period of eight weeks from the date of receipt of copy of this order. No costs. Connected miscellaneous petitions are closed.
8. The case on hand is also identical to the said W.P.No.11215 of 2012 and hence, it would be suffice to give a direction to the respondents in the same line.
9. In view of the order referred to above, a direction is issued to the respondents 1, 4 and 5 to consider the petitioner's representation to count half of the past service rendered by him in a non-pensionable establishment, as per G.O.Ms.No.118, Finance (Pension) Department, dated 14.02.1996 and the order, dated 03.07.2012, passed in W.P.No.11215 of 2012, by this Court, and pass orders in accordance with law, within a period of six weeks from the date of receipt of a copy of this order.
10. The writ petition is disposed of with the above directions. No costs.