TMI Blog2008 (10) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent requesting that he may be taken back into service. As the enclosure (show cause notice dated 8.7.1982) to the said representation was incomplete, the first respondent called upon him to send the complete document. Instead of complying with the said request, the petitioner approached the Tamil Nadu Administrative Tribunal seeking a direction to the first respondent to dispose of his representation. The Administrative Tribunal disposed of the said application on 19.12.2002, without notice to the respondents, with a direction to the Director of Geology Mining (first respondent), to consider petitioner's representation dated 21.7.2000 and pass an order thereon within four months. In compliance with the said direction, the first respondent considered and rejected the petitioner's representations by order dated 9.4.2002. The relevant portions of the said order referring to the facts, is extracted below : The individual was sanctioned unearned leave on medical certificate for 25 days from 7.10.1980 to 31.10.1980 and he did not rejoin duty after the expiry of this leave. On perusal of the first page of the Memo No.19093/E2/80, dated 8.7.1982, the individual has taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Industries and Commerce was upgraded as a separate Department of Geology and Mining and is functioning as a separate department with effect from 14.4.1983. The Government issued order dated 15.3.1989 permanently transferring the officers and staff of the State Geology Branch to the new Department of Geology and Mining. The name of Thiru C. Jacob is not finding a place in this GO.............. Thiru C. Jacob absented from attending duties without proper leave application. He has taken up private employment without prior permission which is against Government Servants' Conduct Rules and he has not turned up for duty in time. He has absconded from duty from 1.11.1980 to 4.5.2000 without intimating the reasons for absenting himself. As he has completely absconded from duty his name did not find a place in the list of officers and staff transferred to the new Department of Geology and Mining vide GO Ms. No.1/Industries (SIA 2) Department dated 15.3.1989 from the erstwhile State Geology Branch of the Department of Industries and Commerce. This clearly bring to light that the applicant was not considered as a regular employee of the Department of Industries and Commerce as he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not furnished the same but only furnished the first page of the above memo with his representation dated 5.5.2000. It is submitted that in the second page there may be specific orders of the State Geologist with reasons for termination of the services of the applicant. 4. The said original application was transferred from the Tribunal to the Madras High Court. A learned Single Judge of the High Court by order dated 13.4.2006 held that the department failed to establish that it had followed the mandatory requirements of section 17(b) of Tamil Nadu Civil Services (Discipline Appeal) Rules by issuing a charge- memo, holding an enquiry and passing an order of punishment. He therefore, declared the termination of petitioner's service in 1982 was illegal. As the petitioner was already 59 years old and it was impractical to hold an enquiry on account of the employee's health condition, the learned Single Judge disposed of the writ petition by declaring that the petitioner was deemed to have retired from service from 18.7.1982 and directing that pension be sanctioned from that date and that the entire arrears should be calculated and paid in eight weeks. 5. The order of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored. 7. Every representation to the government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the department, the reply may be only to inform that the matter did not concern the department or to inform the appropriate department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such claims. 11. The present case is a typical example of `representation and relief'. The petitioner keeps quiet for 18 years after the termination. A stage is reached when no record is available regarding his previous service. In the representations which he makes in 2000, he claims that he should be taken back to service. But on rejection of the said representation by order dated 9.4.2002, he filed a writ petition claiming service benefits, by referring the said order of rejection as the cause of action. As noticed above, the learned Single Judge examined the claim, as if it was a live claim made in time, finds fault with the respondents for not producing material to show that termination was preceded by due enquiry and declares the termination as illegal. But as the appellant has already reached the age of superannuation, the learned Single Judge grants the relief of pension with effect from 18.7.1982, by deeming that he was retired from service on that day. We fail to understand how the learned Single Judge could declare a termination in 1982 as illegal in a writ petition filed in 2005. We fail to understand how the learned Single Judge could find fault with the depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be appropriate amount as set out below namely : ....... (emphasis supplied) As similar contention is frequently raised under the corresponding Rule 49(2)(b) of CCS Pension Rules (`CCSP Rules' for short), we will for convenience refer to the corresponding provisions of CSSP Rules also. 14. Rule 43(2) relied on by the petitioner falls under Chapter VI of TNP Rules (corresponding to Rule 49(2)(b) in chapter VII of CCSP Rules) dealing with `Regulation of amount of pension'. The said rule relates to quantum and lays down how the pension of a retired government servant should be calculated if he is entitled to pension. Entitle- ment to pension is governed by Chapter V of the said Rules, which enumerates the classes of pension and conditions for entitlement. The enumerated classes of pension are : Classes of Pension (vide Chapter V of Pension CCSP Rules TNP Rules Rules) (i) Superannuation pension (Rule 35) Rule 32 (ii) Retiring pension (Rule 36) Rule 33 (iii) Pension on absorption in or under a corpo- (Rule 37) Rule 34 ration, company or body owned/controlled by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is retired, in advance of the age of compulsory retirement in accordance with the provi- sions of Rules 48 or 48-A of those Rules or Rule 56 of the Fundamental Rules or Article 459 of the Civil Service Regu- lations and to a Government servant who on being declared surplus, opts for voluntary retirement in accordance with Rule 29 of those Rules). The provision relating to retiring pension makes it clear that a minimum of 20 years qualify- ing service is required for retiring pension. It does not entitle a government servant to retiring pension on comple- tion of ten years service. Therefore, the petitioner is not entitled to retiring pension 17. The petitioner contends that if the minimum service for entitlement to retiring pension was 20 years and not 10 years, Rule 43(2) would not have stated qualifying service of not less than 10 years . He contended that as Rule 43(2) of the TNP Rules (Rule 49(2)(b) of CCSP Rules) refers to not less than 10 years service , any government servant who has put in service of 10 years or more is entitled to retiring pension. The said contention is misconceived. As stated earlier, the said rule does not relate to `entitle- ment' of pension n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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