Therefore for the reasons stated supra, the petitioner is entitled to be placed under old pension scheme for the service rendered under Agriculture Department from 12.07.2002 to 06.04.2005. Consequently, the service rendered under Central Government ought to be included in the service register book of the petitioner and the Central Government authorities ought to bear the pension for the portion of service rendered in Central Government service. Therefore, the respondents are directed to keep the petitioner in the old pension scheme and consequently carry out the appropriate changes in the service register of the petitioner. The said exercise shall be completed within a period of twelve (12) weeks from the date of receipt of the copy of the order. 19. With the above said observations and directions, the writ petition is allowed. No costs. Consequently, connected miscellaneous petition is closed. Index : Yes / No 30.10.2023 Internet : Yes NCC : Yes / No (2/2) Tmg To 1.The Inspector General of Registration, Registration Office, 100, Santhome High Road, Chennai. 2.The Joint Director of Agriculture, Collectorate Office, Theni. 3.The Assistant Director of Agriculture, Uthamapalayam, Theni. S.SRIMATHY, J Tmg W.P.(MD)No.10817 of 2019 30.10.2023 (2/2)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 02.02.2023
PRONOUNCED ON : 30.10.2023
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W. P.(MD)No.10817 of 2019and
W.M.P.(MD)No.8273 of 2019
D.Ameer Raja … Petitioner
vs.
1.The Accountant General (Accounts and Entitlements),
No.361, Anna Salai, Teynampet, Chennai.
2.The Inspector General of Registration,
Registration Office, 100, Santhome High Road, Chennai.
3.The Joint Director of Agriculture, Collectorate Office, Theni.
4.The Assistant Director of Agriculture, Uthamapalayam, Theni.
5.The Assistant Director of Intelligence
Bureau (Establishment),
Ministry of Home Affairs,
Sardar Patel Marg, Chanakyapuri, New Delhi. … Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus, to call for the records pertaining to the impugned order passed by the 1st respondent made in FM I/V/16-17/19/9752, dated nil and to quash the same and consequently, to direct the 1st respondent to fit the petitioner into the Old Pension Scheme prevailing at the time of the petitioner’s joining service under the State Government (4th respondent) i.e.,
12.07.2002.
For Petitioner : Mr.Isaac Mohanlal Senior Counsel for M/s.Isaac Chambers
For R1 : Mr.P.Gunasekaran
For R2 to 4 : Mr.Veera Kathiravan
Additional Advocate General assisted by Mr.S.Kameswaran Government Advocate
For R5 : Mr.S.Jayasingh
O R D E R
This writ petition is filed for writ of Certiorarified Mandamus, to quash the
impugned order dated Nil passed by the 1st respondent and to direct the 1st respondent to fit the petitioner into the Old Pension Scheme prevailing at the time of the petitioner’s joining service under the State Government (4th respondent) i.e., 12.07.2002.
2. The petitioner participated in the direct recruitment in the year 1999 –
2000 and was selected and posted as Junior Assistant cum Typist in Agriculture Department on 04.07.2002 and he joined the service on 12.07.2002. While in service, the petitioner applied for the examination conducted by the Intelligence Bureau, Ministry of Home Affairs, New Delhi and was selected in the 5th respondent office as Assistant Central Intelligence Officer, Grade II and directed to report to duty on 14.04.2005. Hence, the petitioner submitted resignation and the 4th respondent accepted the resignation vide order 06.04.2005 and has recorded the reason for resignation is to join in Central Government Service.
While serving in the Central Government Service the petitioner applied for TNPSC for the post in combined Subordinate Service Exam-I and got selected to the post of Sub Registrar Grade II. Again, the petitioner tendered resignation to the Central Government service and the same was accepted by the 5th respondent on 29.08.2008 and he was relieved from service by accepting the technical
resignation and then the petitioner joined as Sub Registrar Grade II in the 2nd respondent department on 01.09.2008. Thereafter, he continued his service and was promoted to various posts and he was serving as Joint IV Sub Registrar office, Palanganatham, Madurai.
3. The contention of the petitioner is that he was appointed as Junior
Assistant cum Typist in 12.07.2002 and he resigned from the said post on
06.04.2005. In the meantime, on 01.04.2003, the Government of Tamil Nadu introduced a new pension scheme known as Contributory Pension Scheme. The employers who had joined the service on or after 01.04.2003 are eligible only for the new pension scheme. Since the petitioner’s appointment in the post of Junior Assistant cum Typist was on 12.07.2002, he submitted a representation, dated 23.03.2016, to the 1st respondent seeking to bring his name under old pension scheme and allot GPF Account number. The 1st respondent, vide impugned proceedings, dated nil, has rejected the request by stating that the petitioner has resigned from the Agriculture Department on his own will and it was not a technical resignation. Aggrieved over the same, the present writ petition is filed.
4. The 4th respondent had filed counter stating that the 1st respondent had passed the impugned order and the 3rd and 4th respondents are constrained to clarify the petitioner’s service rendered in Agriculture Department. Since only by establishing the period of service in the said department the petitioner is eligible to the prayer sought for. The petitioner is trying to project as if he is eligible for old pension scheme instead of Contributory Pension Scheme. It is an admitted fact that the petitioner was serving in the said department from 12.07.2002 to 06.04.2005 and then the petitioner had resigned on his own. The petitioner is trying to establish that the petitioner was appointed prior to crucial date 01.04.2003 for getting old pension. But his service was not in accordance to the service rules, since the petitioner’s service will be permanent only after declaration of probation. In other words, the unless and otherwise the probation is declared against the petitioner he will not be a permanent employee. In the instant case after the appointment of the petitioner he should have completed Bhavani Sagar Training for declaration of the probation. The petitioner had not obtained the certificate of Bhavani Sagar Training and hence he was not a permanent employee in the Agriculture Department and hence he cannot claim to calculate the said period from 12.07.2002 to 06.04.2005 and keep him in old pension scheme. The claim of the petitioner is against law and hence the respondents pray to dismiss the writ petition.
5. The 5th respondent had filed counter wherein it is stated that the petitioner was appointed in the 5th respondent on temporary capacity from 14.04.2005 and he continued to serve in IB till 29.08.2008. He tendered his technical resignation on his selection to the post of Sub Registrar, Grade-II and the same was accepted on execution of bond for the remaining amount. Thereafter his service book was forwarded to the Inspector General of Registration, Tamil Nadu. The petitioner has not sought any relief against the 5th respondent and hence the writ petition is not maintainable against the 5th respondent and prayed to dismiss the writ petition.
6. The 1st respondent has filed written arguments stating that the petitioner has resigned his post even before he was admitted as full member of regular employee, before the commencement of his regular service. When the probationer has no right to his post till declaration of probation and his services till probation was like an apprentice, he has no right to tender technical resignation. Moreover, on his second appointment in Central Government, the petitioner was placed
under new pension scheme. If at all the petitioner was relieved from 4th respondent on technical resignation, he would have been placed under old pension scheme by the Central Government. The competent authority to decide as
to whether the petitioner was relieved on technical resignation is the 4th respondent. It is categorically stated that the petitioner resigned the service for his personal reasons. Therefore, now, the petitioner cannot improve his case and say that he was relieved on technical resignation. The petitioner has neither challenged the entry in Page No.17 of the service book or his inclusion in the new pension scheme by Central Government till date and it is not even stated in his affidavit that these entries are wrong. On contra, he has accepted that he is a member of new pension scheme and accepted to deduct the subscription towards his contribution without any protest. Now, the petitioner cannot say that he should be placed under old pension scheme after a lapse of 14 years. The petitioner has resigned the Central Government service with proper permission to join the Tamil Nadu Government service. During the relevant period of time, he was a subscriber of new pension scheme. Therefore, he should be placed under the new pension scheme under the State Government and not in the old pension scheme. Moreover, under Rule 23(1) of Tamil Nadu Pension Rules, the petitioner has resigned his post on 06.04.2005. Hence, the past service cannot be taken, since his past services will be forfeited. Rules 24 and 25 of Tamil Nadu Pension Rules are applicable to the cases of technical resignation only. Therefore, the said provisions are not applicable to the petitioner. Further the petitioner has filed this writ petition after a lapse of 14 years and the petition is hit by the principles of delay and laches. Rule 3 and 11 of Tamil Nadu Pension Rules is applicable only to employees who joined as temporary or officiating employee and the same is not applicable to probationer. There is no provision either in Tamilnadu State and Subordinate Services Rules or Tamilnadu Pension Rules to count probation services as qualifying service. Therefore, the claim of the petitioner cannot be considered. Hence, the 1st respondent prayed to dismiss the writ petition.
7. Heard Mr.Isaac Mohanlal, learned Senior Counsel appearing for the
petitioner, Mr.P.Gunasekaran, learned Standing Counsel appearing for the 1st respondent, Mr.Veera Kathiravan, learned Additional Advocate General appearing for the respondents 2 to 4 and Mr.S.Jayasingh, learned Standing Counsel appearing for the 5th respondent and perused the records.
8. The first contention of the Learned Additional Advocate General Mr.Veera Kathiravan, appearing for the respondents 1 to 4 is that the probation was not declared, hence the petitioner was not admitted as full member of regular employee and hence the said service cannot be counted for calculating the pensionable service. The Learned Additional Advocate General further submitted that the specific contention of the 4th respondent is that the petitioner has not undergone Bhavani Sagar training, consequently his probation was not declared. Since probation was not declared, then the petitioner cannot be considered as entitled to calculate the said service from 12.07.2002 to 06.04.2005. The Learned Counsel Mr.P. Gunasekaran appearing for the 1st respondent submitted that as per the said Rule 3(o) of the Tamil Nadu Pension Rules, 1978, the permanent service or officiating service ought to be there to calculate the said service. When the probation was not declared, then the petitioner’s service in Agriculture Department cannot be considered as permanent service and hence the said service cannot be calculated. The Learned Senior Counsel Mr.Isaac Mohanlal appearing for the petitioner refuted the contention of the respondents and submitted that the pensionable service can be calculated from the date of joining the service and there is no prohibition or bar to calculate such service.
9. To resolve this issue raised by the either side, the provisions ought to be analyzed. The Tamil Nadu Pension Rules, 1978 has defined “qualifying service” in Rule 3(o) as under:
“Rule 3 (o) ‘qualifying service’ means permanent or officiating service (including temporary service under emergency provisions) rendered in a post included in a pensionable establishment;”
The Pension Rules has dealt with the “qualifying service” under Chapter III.
Under Chapter III, the Rules 11 to 29 deals with the qualifying service apart from the definition clause under Rule 3(o). The Rule 11 deals with “Commencement of qualifying service” and said Rule is extracted hereunder:
“Rule 11. Commencement of qualifying service: Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity. In the case of a Government servant retiring on or after the first October 1969, [***] temporary or officiating service in the pensionable post whether rendered in a regular capacity or not shall count in full as qualifying services even if it is not followed by confirmation.”
The rule specifically states that the qualifying service shall commence from the date of taking charge to which the employee is appointed substantively or in an officiating capacity or temporary capacity. Also states any employee retiring on or after from October 1969, temporary or officiating service in pensionable post whether rendered in a regular capacity or not shall count in full as qualifying services even if not followed by confirmation. When the Rule 11 refers to “temporary or officiating service”, when the rule 11 states “even if it is not followed by confirmation”, moreover, when the rule states then also it shall be considered as qualifying service, hence the contention of the respondents that probation was not declared, hence it cannot be considered falls down. Interestingly Rule 11(2) states even if the service is paid from contingencies fund, then half of the service paid from contingencies shall be allowed to count towards qualifying service. Under and 11(4) half of the service rendered in nonprovincialised service, consolidated pay, honorarium or daily wages basis shall be taken to count towards qualifying service. In both the cases the condition is that said job should be in whole time employment, should be a regular post, salary quantified monthly basis or daily basis but paid monthly and followed by absorption. The criteria for considering the service are only “date of taking charge” and “appointed substantively”. Therefore, on comprehensive reading of the definition of qualifying service under Rule 3(o) read with commencement of qualifying service under Rule 11, it can be safely stated that even if probation is not declared the said service ought to be taken while calculating the pensionable service and the contention of the respondents ought to be rejected.
10. The Rule 12 deals conditions subject to which service qualifies, wherein it states that the service of a government servant shall not qualify for pension unless his duties and pay are regulated by the Government or under conditions determined by the Government. Under sub clause (2) it further states that for the purposes of sub-rule (1) the expression “service” means service under the Government and paid by the Government from the Consolidated fund of the State, or of local fund administered by that Government but does not include service in a non-pensionable establishment unless such service is treated as qualifying service by that Government. Under sub clause (3) and other subclauses, it deals with temporary Central Government servants on deputation to the State, on getting absorbed under the State Government, on getting retrenched etc. On perusal of the Rule 12 with sub-clauses, it is evident that the same is not baring service wherein probation was not declared. It only speaks of pensionable service and non-pensionable service and deputation service and retrenchment service.
11. Rule 13 deals with apprentice service and the rule bars to include the apprentice period to include in the pensionable service. Rule 14 deals with service under contract but subsequently appointed in substantive post, wherein an option is given to the employee. Rule 15 deals with pre-retirement civil service in the case of re-employed Government servants. Rule 16 deals with military service and Rule 17 deals with war service. Rule 18 deals with periods spent on leave and Rule 19 deals with periods spent on training. Rule 20 deals with periods of suspension, Rule 21 deals with forfeiture of service on dismissal or removal and Rule 22 deals with past service on reinstatement when punishment of dismissal or removal was set aside in appeal. Rule 23 deals with forfeiture on resignation, Rule 24 deals with effect of interruption of service and Ruel 25 deals with condonation of interruption of service. Rule 26 states in the case of a Government servant who retired or may retire from service on or after the 1st July, 1960 a deficiency in qualifying service shall not be condoned. This ought to be read along with other Rules under chapter III and on such comprehensive reading of the chapter III it is evident that the rules state of disqualification whenever a nonpensionable service intrudes or resignation per se or dismissal etc. and definitely it is not stating non-declaration of probation as disqualification at all. Rule 27 deals with addition to qualifying service in special circumstances, wherein it states to add superannuation pension. Rule 28 period of deputation to United Nations and other Organisations and Rule 29 verification of qualifying service after 28 years of service or 53 years of age.
12. From the above discussion it is evident that the non-declaration of probation cannot be stated as disqualification. In other words, the chapter III has not barred or prohibited to take the said service where probation was not declared. Rather the chapter is so lenient and directs to take temporary service, non-provincialised service, consolidated pay, honorarium or daily wages etc. to pay pension. Even though only half of the service is taken, the chapter is considerate to take the said service to grant pension. The pension is paid for the government service rendered by the employee which is beneficial legislation and hence liberal interpretation ought to be applied. Therefore, this Court is of the considered opinion that the plea of the respondent is not in consonance with the object of the pension rules and hence the plea cannot be sustained.
13. The dictionary meaning of the word “probation” means “a situation or period of time in which a person who is starting a new job is tested and watched to see if that person is able to do the job properly”. When the petitioner had rendered from 12.07.2002 to 06.04.2005 i.e. nearly three years of service it cannot be stated that the petitioner is not suitable for the said post and there is no proceeding declaring the petitioner is not suitable for the post. Moreover, a specific plea was raised by the 4th respondent that the petitioner had not obtained the certificate of Bhavani Sagar Training and hence the probation was not declared. Sending the employee to Bhavani Sagar training is within the domain of employer and it depends upon the vacancy and seniority of the employee, hence the same cannot be put against the employee. It also a settled proposition that Bhavani Sagar training is only service qualification and the same cannot be put against the employee while considering for further promotion. When such is the settled proposition of law, the plea of the respondents that the petitioner has not completed Bhavani Sagar training, consequently the probation was not declared and hence the petitioner is not entitled to take period of service from 12.07.2002 to 06.04.2005 for pensionable service is arbitrary and total non-application of mind and the stand of the respondents cannot be sustained in law.
14. The next plea of the respondents it that, it is an admitted fact that the petitioner had submitted the resignation to the 4th respondent and under Rule 23 on resignation entails forfeiture of past service and hence the petitioner cannot claim to include the said service and the said Rule 23 is extracted hereunder:
“23. 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 if it has been submitted to take up with proper permission, another appointment, whether temporary or permanent, under the Government where service qualifies”.
The respondents relied on the judgment dated 20.04.2021 rendered by the Hon’ble Division Bench in W.A.(MD)No.63 of 2019, wherein it is held as under:
“10. The first respondent / writ petitioner cannot bring his case under Rule 26(9), which deals with what is commonly known in service jurisprudence as “technical resignation”. This resignation is acceptable in cases where the Government servants apply for post in the same or other departments through proper channel and on selection, they are asked to resign the previous post for administrative reasons, the benefit of past service may, if otherwise admissible under rules, be given for purposes of fixation of pay in the new post treating the resignation as a “technical formality”. Though the first respondent / writ petitioner would contend that he had obtained prior permission from the Postal Department for applying for being selected in the appellant – Department, the Postal Department has not treated the resignation as a “technical formality”, but, treated it as a normal resignation making it clear that the first respondent / writ petitioner is not entitled for any benefits. Therefore, the premise under which the first respondent / writ petitioner proceeded was wholly unsustainable. The case of the first respondent / writ petitioner would clearly fall within the ambit of Rule 23(i) of Tamil Nadu Pension Rules, 1978 which states that resignation from a service or post entails forfeiture of past service. Therefore, the order and direction issued by the Writ Court, impugned before us, calls for interference.”
In the present case, it is seen that the petitioner had submitted resignation by citing the reason that the petitioner is intended to join Central Government service, which is evident from the proceedings passed by the 4th respondent. The relevant portion is extracted hereunder:
“Order:-
It is hereby noted that Mr.D.Ameer Raja who served as a Junior Assistant in the office of the establishment of the Assistant Director of Agriculture, Uthamapalayam has resigned his Job on 06.05.2005 afternoon, citing the reason that he is joining in the Central Services of the Government of India.
His resignation letter has been accepted and he has been relived from his duties on 06.04.2005 afternoon
He handed over his charges without any omission to Shrimathi R.
Thilagavathi, typist.”
It is pertinent to note here that when the Agriculture Department had passed an order dated 06.04.2005 it only states that the petitioner is relieved and it has not been stated that the service is forfeited. In the judgment cited by the respondents the employer thereunder had passed an order forfeiting the past service and therefore the Hon’ble Division Bench had held that the said order was not challenged, therefore the plea of the employee was rejected. But in the present case the Agriculture Department had not forfeited the service, rather it has relieved the petitioner, therefore the said judgment stated supra is not applicable to the facts of the present case.
15. This Court is of the considered opinion that once the government employee is declaring that he is intended to join another Government Service either State or Central, then the employer is bound to accept the resignation as “technical resignation” by invoking “Proviso of Rule 23 of the Tamil Nadu
Pension Rules”. The proviso states if it is taken up with proper permission another appointment under the government where service qualifies. On the bare reading of the rule, it is evident that the employer is not having any power or authority to decline to grant permission. Once the employee is declaring that he is resigning from the government service to take up another government service, then the said resignation ought to be considered as “technical resignation” only. In other words, the respondents ought to consider it as “technical resignation” only and it is mandatory. Even though the rule is not stating technical resignation and not defining the term technical resignation, in order to differentiate the resignation to join another government service and resignation per se, the said phrase “technical resignation” is used in service jurisprudence. An employee is entitled to the benefits of proviso clause on condition that “he is joining another government job”. Conversely if the employee is joining in any private employment, then the employee is not entitled to invoke the proviso clause. Also, if the employee is simply resigning without joining any post, then also the employee is not entitled to the benefit of the proviso. In the present case, the petitioner had explicitly declared before the Agriculture Department that in order to join the Central Government service he is resigning the job and the same is evident from the order passed by the Agriculture Department. In such circumstances, the 3rd and 4th respondents are bound to accept the resignation as “technical resignation” and ought to have transferred the Service Register of the petitioner to the employer of the Central Government. As stated supra the 3rd and 4th respondents are not having any power or authority to reject or decline permission.
16. The respondents have relied on the Hon’ble Division Bench judgment rendered in A.I.Agnel Ilangovan Vs Government of Tamil Nadu and others reported in (2016) 3 MLJ 839 wherein it is held resignation could be for any reasons but statue had recognized only for taking up another government job then the resignation cannot be extended to ill health and the relevant portion is extracted hereunder:
“7.Proviso to rule 23, makes it abundantly clear that there shall not be any forfeiture of past services, if the resignation is submitted to take up, with proper permission, another appointment whether temporary or permanent under the Government, where service qualifies. Exclusion is only to the specific instance of taking up another employment, whether temporary or permanent, with the permission of the competent authority.
8.As rightly observed by the Writ Court, when the provision is plain and unambiguous, there cannot be any addition or substitution of words. Resignation could be due to misconduct or adverse record or ill-health or family problems or for any other justifiable cause. When the statute has excluded all the above, with the only specific inclusion, for consideration of the past services, for pension, in the event of taking up another appointment, whether temporary or permanent, under the Government, with proper permission, benefit of the said proviso, cannot be extended to a case of resignation due to ill-health. The Writ Court has adverted to the abovesaid aspect, placing reliance on the decisions of the Hon’ble Apex Court. We wish to add few more judgments, on the aspect as to how a section and proviso has to be interpreted.”
The Hon’ble Division Bench had held that on plain reading of the provision it has excluded forfeiture when resignation is to take up another government job, but if other reasons like ill health are considered then the same attracts the principle of “Casus Omissus”. This Court is of the considered opinion that this judgment is supporting the petitioner rather than the respondents. The judgment specifically states “when the statute has excluded all the above, with the only specific inclusion, for consideration of the past services, for pension, in the event of taking up another appointment, whether temporary or permanent, under the Government, with proper permission, benefit of the said proviso, cannot be extended to a case of resignation due to ill-health”. Therefore, if any employee is taking up another government service and declaring the intention to the employer, then the employee is entitled to the benefit of proviso clause. But as stated supra at the same breath the employer is not having any power to deny the benefit of the proviso under the guise of granting permission. At the cost of repetition this Court is of the considered opinion if the employee is submitting resignation by declaring to take up another government job, then it is mandatory on the part of the employer to grant permission and treat the same as technical resignation and the employer cannot treat if otherwise.
17. In the present case, when the respondents have not forfeited but has relived the petitioner from the Agriculture Department, then the same is only technical resignation and the respondents ought to have transferred the service register to the Central Government service authorities. However as stated supra the employer is not having any power or authority to forfeit the past service, if the employee is disclosing that he is resigning in order to take up another government job, then the employer ought to relive the employee without forfeiting the past service. It is also pertinent to state when the petitioner again resigned from the Central Government service and joined as Sub-Registrar, the Central Government authority has passed an order of technical resignation and had transferred the service register book of the petitioner to the Inspector General of Registration. If the same was followed by the Agriculture Department, then this case would not have arisen at all.
18. Therefore for the reasons stated supra, the petitioner is entitled to be placed under old pension scheme for the service rendered under Agriculture Department from 12.07.2002 to 06.04.2005. Consequently, the service rendered under Central Government ought to be included in the service register book of the petitioner and the Central Government authorities ought to bear the pension for the portion of service rendered in Central Government service. Therefore, the respondents are directed to keep the petitioner in the old pension scheme and consequently carry out the appropriate changes in the service register of the petitioner. The said exercise shall be completed within a period of twelve (12) weeks from the date of receipt of the copy of the order.
19. With the above said observations and directions, the writ petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
Index : Yes / No 30.10.2023
Internet : Yes
NCC : Yes / No (2/2)
Tmg
To
1.The Inspector General of Registration,
Registration Office, 100, Santhome High Road, Chennai.
2.The Joint Director of Agriculture, Collectorate Office, Theni.
3.The Assistant Director of Agriculture, Uthamapalayam, Theni.
S.SRIMATHY, J
Tmg
W.P.(MD)No.10817 of 2019
30.10.2023 (2/2)
