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The State Of Tamil Nadu v. V.Jesudoss
Factual and Procedural Background
The first respondent, V. Jesudoss, was a teacher at M.C.C.R.S.L. Primary School, Tambaram. After about 15 years of service he resigned on 31 October 1977 and sought sanction of pension. The Accountant General (Accounts and Entitlements), Tamil Nadu, by proceedings (Pen.24/III/J.10-151/98-99/ADK/120) dated September 1998 rejected the pension claim on the ground that the pension scheme for aided school teaching staff had been introduced by G.O.Ms.No.1109 (Education) dated 31 May 1958 and that the "crucial date" was 31 May 1958; because the resignation occurred after that date the respondent was said to have lost past service and pensionary benefits.
The first respondent challenged the rejection by filing W.P.No.5483 of 1999. The Single Judge, by an order dated 4 January 2000 (which took into account an unreported order dated 14 March 1997 in W.P.No.3066 of 1995), allowed the writ petition and directed the appellants to sanction pension to the first respondent within six months without interest; on failure to do so interest at 6% from the date of that order until payment was to be payable. The State (appellants) appealed against this order.
Legal Issues Presented
- Whether the resignation of the first respondent prevents him from obtaining pension under the Tamil Nadu Pension Rules, 1978 (i.e., whether resignation entails forfeiture of past service for pension purposes).
- Whether the first respondent is entitled to pension for having rendered service for about 15 years.
Arguments of the Parties
Appellants' (State) Arguments
- The learned Additional Government Pleader relied on Rule 23 of the Tamil Nadu Pension Rules, 1978, and submitted that resignation from the post entails forfeiture of past service, thereby disqualifying the first respondent from pension which depends on past service.
- It was also submitted that the first respondent did not have continuous service for 15 years.
First Respondent's Arguments
- The first respondent's counsel contended that, even where resignation occurs after the crucial date, the Government in a number of "hard cases" has relaxed the stipulation and allowed retirement benefits to resigned teachers. Reliance was placed on Government proceedings dated 21 January 1983 issued by the Department of Education, Science and Technology, Government of Tamil Nadu.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| D.S. Nakara & Others v. Union of India, 1983 (1) LLJ 104 = (1983) 1 SCC 305 = AIR 1983 SC 130 | Pension is not a bounty or ex gratia; it creates a vested right subject to statutory rules and is a payment for past service; a social welfare measure. | The court invoked this principle to emphasise that pension is a vested right (subject to rules) and to frame the analysis that pension entitlement should not be treated as mere grace; this supports a protective approach to pension claims. |
| P.M. Subramanian v. The State of Tamil Nadu and Another, 1992 Writ Law Reporter 691 | The date of retirement is irrelevant where a liberalised pension scheme is intended to operate from the date of the scheme and cover eligible persons who retired prior to the specified date; qualifying service governs entitlement. | The Court (through a quoted order of P. Sathsivam, J.) relied on this decision to support the proposition that the date of retirement/resignation is not determinative where the scheme is intended to be retrospective or liberalised; used to buttress the entitlement of persons with qualifying service. |
| W.P.No.3066 of 1995 — Order dated 14 March 1997 (P. Sathsivam, J.) | The Single Judge in the present matter relied on and the Court expressly took into account this unreported High Court order in upholding entitlement; the present Court declined to disturb the Single Judge's reliance on that order. |
Court's Reasoning and Analysis
The court framed the sole question as whether resignation bars the first respondent from pension under the Pension Rules and whether he is entitled to pension after about 15 years' service.
The court first reiterated the established legal position (citing D.S. Nakara) that pension is a vested right subject to statutory rules and is not an ex gratia payment. It then examined the relevant provisions of the Tamil Nadu Pension Rules, 1978: Chapter III provisions on qualifying service (Rule 11), conditions for service qualifying (Rule 12), condonation of interruption in service (Rule 25), forfeiture on dismissal or removal (Rule 21), and the specific provision on forfeiture on resignation (Rule 23).
Rule 23 was quoted and analysed. The express text of Rule 23 states that resignation entails forfeiture of past service, but contains a proviso: resignation shall not entail forfeiture if submitted to take up, with proper permission, another appointment under the Government where service qualifies. The court observed that Rule 23's proviso clearly contemplates exemption where resignation is to take up another qualifying government appointment.
The court then considered the factual matrix of the first respondent: his resignation was simplicitor, accepted by the competent authority; there were no departmental proceedings in progress nor allegations or misconduct alleged against him. The court asked whether a simplicitor resignation in such circumstances should be equated with dismissal or removal (which under Rule 21 entails forfeiture).
The court held that equating a straightforward resignation (not submitted to avoid disciplinary proceedings or in the face of allegations) with dismissal/removal would make an unequal situation equal, and that such an approach would violate Article 14 of the Constitution (equal protection/avoidance of arbitrary classification). Consequently, the court interpreted Rule 23 to mean that resignation simplicitor will not automatically entail forfeiture of past service. Only where resignation is tendered because of pending allegations or departmental proceedings that would otherwise attract dismissal/removal will Rule 23's forfeiture operate.
The court also considered relevant Government orders and practice. It noted Government proceedings dated 21 January 1983 (R.Cis.No.13053/Pension/13/83) which fixed a "crucial date" (5 June 1991 in that order) and stated that even after the crucial date the Government had relaxed the stipulation in a number of hard cases and allowed pension to resigned teachers. The court further noted G.O.Ms.No.396 dated 12 September 1997, wherein the State allowed pension in a case (TAP. Srinivasan) who had resigned prior to the crucial date. From these materials the court inferred that resignation is not treated as automatically forfeiting service in practice; however, the court limited such relaxation to cases where resignation occurs during the pendency of departmental proceedings or because of allegations pending consideration.
The court relied on the High Court's earlier order in W.P.No.3066 of 1995 (14 March 1997) which, following the P.M. Subramanian decision, held that the date of retirement is irrelevant and that qualifying service, not the retirement/resignation date, determines entitlement under a liberalised scheme. Applying these legal principles to the facts before it, the court concluded there was no basis to hold that the first respondent's past service stood forfeited for the purpose of pension.
Holding and Implications
Holding: The court affirmed the Single Judge's decision and disposed of the writ appeal. The core ruling is summarized as:
Writ appeal dismissed and the Single Judge's order directing sanction of pension to the first respondent is upheld.
Immediate consequences and directions:
- The court was not inclined to accept that the first respondent's resignation resulted in forfeiture of past service for pension purposes, given that his resignation was simplicitor and there were no disciplinary proceedings or allegations at the relevant time.
- The matter of quantum (calculation of the period of service for pension computation) was left open to the competent authority; that authority is to calculate the period of service and pay the admitted pensionary benefits in terms of the Single Judge's order.
- The Single Judge had directed sanction within six months without interest but provided that on failure interest would run at 6% from the date of the Single Judge's order until payment; the present Court did not disturb the remedial direction of the Single Judge and disposed of the appeal with the observations noted above.
- There shall be no order as to costs. CMP Nos.14136 of 2000 and 20816 of 2001 are closed.
Broader legal implication stated by the Court: resignation simplicitor (i.e., resignation not tendered to evade or avoid departmental proceedings or pending allegations that could lead to dismissal/removal) will not automatically entail forfeiture of past service for pension purposes; only resignations linked to disciplinary proceedings/ allegations that would otherwise attract dismissal/removal will attract forfeiture under Rule 23. The court grounded this reading on Article 14 and on precedents/government practice.
(Delivered by S.J.MUKHOPADHAYA,J.) The first respondent, V.Jesudoss, was a teacher in M.C.C.R.S.L.Primary School, Tambaram. After 15 years of service, he resigned on 31.10.1977. He requested to sanction pension, which was rejected by Accountant General (Accounts and Entitlements), Tamil Nadu, Madras, by proceedings in Pen.24/III/J.10-151/98-99/ADK/120 dated September 1998. The first respondent was informed that the pension scheme of teaching staff of aided school was introduced by G.O.Ms.No.1109, Education dated 31.5.1958 and the crucial date was fixed as 31.5.1958. As he resigned his post on 31.10.1977, which is after the crucial date, i.e. after the introduction of the pension scheme, he is stated to have lost his past service and thereby, the pensionary benefits also.
2. The first respondent challenged the same before this Court in W.P.No.5483 of 1999. The learned Judge, by the impugned order dated 4.1.2000, taking into consideration the unreported order of this Court dated 14.3.1997 made in W.P.No.3066 of 1995, allowed the writ petition and directed the appellants to sanction pension to the first respondent within six months, without interest. But, on failure, it was ordered to pay interest at the rate of 6% from the date of this order to till the date of payment.
3. The learned Additional Government Pleader appearing on behalf of the appellants/State referred to Rule 23 of the Tamil Nadu Pension Rules, 1978 (hereinafter referred to as "Pension Rules") and submitted that the resignation from the post entails forfeiture of the past service. According to him, the past service, having forfeited, the first respondent is not entitled to pension, which is depending on the service rendered. It is further submitted that the first respondent has no continuous service for 15 years.
4. Per contra, the stand taken by the learned counsel for the first respondent is that even in cases of resignation after the crucial date, in a number of hard cases of particular individuals, the Government has relaxed the stipulation and allowed retirement benefits to the resigned teachers also. He placed reliance on a proceedings dated 21.1.1983 issued by the department of Education, Science and Technology, Government of Tamil Nadu.
5. We have heard the learned counsel for the parties and perused the records.
6. The only question to be determined in this case is whether the resignation of the first respondent would come in his way to get pension under the Pension Rules and whether the first respondent is entitled to pension for having rendered service for about 15 years.
7. It is now a settled law that pension is neither a bounty nor a matter of grace depending on the sweet will of the employer. It creates a vested right subject to the rules which are statutory in character. Pension is not an ex-gratia payment. But, it is a payment for the past service rendered. It is a social welfare measure rendering socio-economic justice. It is an assurance of the employer that in the old age, the employee would not be left in the lurch [D.S.Nakara & Others v. Union of India - 1983 (1) LLJ 104 = (1983) 1 SCC 305 = AIR 1983 SC 130].
8. So far as the Pension Rules, 1978 is concerned, Chapter III deals with qualifying service (Rule 11). Rule 12 stipulates conditions subject to which service qualifies. Rule 25 relates to condonation of interruption in service.
The forfeiture of service is stipulated under Rule 21 in case of dismissal or removal, which reads as under:
Rule 21:
Forfeiture of service on dismissal or removal.- Dismissal or removal of a Government servant from a service or post entails forfeiture of his past service.
As far as the resignation is concerned, it also stipulates forfeiture of service except in certain condition under Rule 23 and quoted here under:
Rule 23:
Forfeiture of service on resignation.- (1) Resignation from 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.
(2) Interruption in service in a case falling under the proviso to sub-rule (1), due to the two 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."
9. Admittedly, the first respondent resigned from service on 31.10.1977. The said resignation was accepted by the competent authority. It is not alleged that any proceeding was initiated against the first respondent or was to be initiated at that stage, which was the reason for submission of resignation by the first respondent. No misconduct or dereliction of duty, while he was in service, was alleged against him. In such case, whether it can be stated that the resignation in the case of first respondent also entails forfeiture of past service.
10. Under proviso to Rule 23, it would be evident that the resignation shall not entail forfeiture of past service if it has been submitted to take up with proper permission for another appointment. It is not clear that if a person submits a simplicitor resignation and against whom no proceedings is pending or allegation is pending and if he wants to take rest in his life or is suffering from ailment, whether in such case, resignation will amount to forfeiture of past service. In such case where the resignation is simplicitor, not because of any departmental proceeding or any allegation and has been accepted by the competent authority, if they are equated with those dismissed or removed from service, according to us, it will render two unequal as equal and will be violative of Article 14 of the Constitution of India.
11. In the aforesaid background, to uphold Rule 23 as not violative of Article 14 of the Constitution of India, it is to be held that resignation simplicitor will not entail forfeiture of past service; only in those cases where a person submits resignation because of any allegation or proceedings which otherwise would have attracted punishment like dismissal or removal from service, the provisions of rule 23 will be attracted forfeiting the past service.
12. This will also be evident from the Government of Tamil Nadu proceedings in R.Cis.No.13053/Pension/13/83 dated 21.1.1983. By the said proceedings, the crucial date from which staff of non Government educational institution are entitled for pension was fixed as 5.6.1991. It was ordered that those who have resigned prior to 5.6.1991 would not be entitled to the benefit. At paragraph 4 of the proceedings dated 21.1.1983, the Government of Tamil Nadu made the following provision:
"Even in cases of "resignation" after the crucial dates, the Government have in a number of hard cases of particulars individuals relaxed the stipulation and allowed retirement benefit to "resigned" teachers also.
13. By G.O.Ms.No.396 dated 12.9.1997, in view of the order of the High Court, the Government of Tamil Nadu considered one of such cases, viz. one Mr.TAP.Srinivasan, who resigned from service prior to 5.6.1991 and was allowed the pensionary benefit. It would be, thus, evident that in case of resignation of service, it will not automatically forfeit the service of a person, otherwise, it would not have allowed the State Government to pay the pension. But, such interpretation is to be given only in case a person resigns from service during the pendency of a departmental proceeding or because of an allegation pending consideration.
14. In fact, the cut off date, viz. 5.6.1991 fixed by the State Government in the matter of granting retirement benefits to the employees who have resigned from service fell for consideration before this Court in W.P.No.3066 of 1995. By order dated 14.3.1997, P.Sathsivam, J, while considering the identical contention, held as under:
With regard to the cut-off date as relied upon by the learned Government Advocate Mr.D.Krishnakumar has brought to my notice a decision of Lakshmanan,J., in P.M.Subramanian Vs. The State of Tamil Nadu and Another 1992 Writ Law Reporter 691. In the said decision, the learned Judge relying upon earlier decision of Supreme Court as well as some of the decisions of this Court has held that the date of retirement is irrelevant and the revised scheme would be operative from the date mentioned in that scheme and would bring under its umbrella all existing pensioners who retired prior to the specified date and their pension would be computed afresh and would be payable in future commencing from the specified date. Even though the liberalised pension scheme has been introduced in the year 1958, in view of the subsequent clarifications by way of various Government orders as rightly pointed out by Lakshmanan, J., following the decision of the Supreme Court reported in 1983 1 LLJ 104, I am of the view that the date of retirement is irrelevant. When the object of the Government is to give pension to all eligible and qualified person or persons, the date of retirement is irrelevant. Under these circumstances, as already stated the petitioner had qualifying service i.e. 10 years 9 months and 18 days, and therefore, the petitioner is entitled to succeed in the present writ petition.
15. In view of the observation made by us and the decision of this Court as noticed above, we find no ground made out to interfere with the order made by the learned single Judge. We are not inclined to accept that the first respondent having resigned from service, his services stood forfeited for the purpose of pension. So far as the question of quantum of payment of pension is concerned, we are leaving that matter open to the competent authority, who has to calculate the period of service for calculating the pension and pay the admitted pensionary benefit to the first respondent in terms with the order passed by the learned single Judge.
The writ appeal thus stand disposed of with the aforesaid observation. There shall be no order as to costs.
CMP Nos.14136 of 2000 and 20816 of 2001 are closed.
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