THE HON’BLE MR JUSTICE S. M. SUBRAMANIAM AND THE HON’BLE MR JUSTICE KRISHNAN RAMASAMY AND THE HON’BLE MR.JUSTICE K. SURENDER WP No. 15727 of 2017 A.Sundaram S/o. Alagu, No.9-11/21, Nethaji, 2nd Cross Street,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07-04-2026
CORAM
THE HON’BLE MR JUSTICE S. M. SUBRAMANIAM
AND
THE HON’BLE MR JUSTICE KRISHNAN RAMASAMY
AND
THE HON’BLE MR.JUSTICE K. SURENDER
WP No. 15727 of 2017
A.Sundaram
S/o. Alagu, No.9-11/21, Nethaji, 2nd Cross Street, Viswanathapuram, Madurai -14.
..Petitioner
Vs
1.The State of Tamil Nadu rep.by
the Secretary to Government, Rural Development Department, Secretariat,
Fort St. George,
Chennai-9.
2.The Commissioner / Director of
Survey & Settlement, Chepauk,
Chennai – 600 005.
3.The Accountant General
(A&E), Teynampet,
Chennai- 600 018.
..Respondents
To direct the respondent to count the entire temporary services of the petitioners worked in the cadre of Field Surveyor cum Draftsman / Section Writer for Pension purpose and accordingly revise the petitioners pension and pensioner benefits and further to pay the consequential arrears in the light of the judgement reported in 2013(2) MLJ 399 and on par with the various judgments made by this Honourable Court within a stipulated time may be fixed by this Honourable Court.
WP No. 15727 of 2017
For Petitioner(s): Mr.M.Saravanakumar
For Respondent(s): Mr.P.S.Raman,
Advocate General
assisted by
Mr.T.Chandrasekaran,
Special Govt.Pleader for R1 & R2
Mr.V.Murali,
Standing Counsel for R3
Order
(Order of the Court was made by S.M.Subramaniam J.)
This Full Bench has been called upon to examine the decision in V.Ganapathy Vs. State of Tamilnadu reported in 2013 (2) MLJ 399 .
2. The main reference questions are pertaining to Rule 11(4) of TamilNadu Pension Rules and its constitutional validity as against Article 14 of the Constitution of India.
3. The learned single Judge of this Court in W.P.No.15727 of 2017 has posed the following reference questions.
i) Whether it is permissible for the High Court in exercise of the powers under Article 226 of the Constitution to have declared any law as unconstitutional in the absence of any challenge in this regard?
(ii) If so, whether the restriction to half of the services rendered under consolidated pay in Rule 11(4) of the Pension Rules, 1978, is violative of Article 14 of the Constitution of India and the entire period of such service must be taken into account for the calculation of pension for the concerned person?
4. The learned single Judge raised these questions in the backdrop of decision of this Hon’ble Court in V.Ganapathy’s case cited supra, wherein paragraph 13 of the said order reads as under:
“Rule 11(4) of the Pension Rules and the Government Order restricting the benefit of service rendered on temporary service to 50% only, therefore, cannot be held to be constitutionally valid, as it is hit by Article 14 of the Constitution of India.”
5. It is noteworthy that there is no specific mention to Rule 11 being brought under challenge in the V.Ganapathy’s case cited supra. Hence, to answer the first reference question is trite law that in the absence of challenge to the said provision of law/Rule, its validity cannot be tested without affording an opportunity of hearing to the State.
6. In the case cited supra, a reading of the judgment does not showcase any pleading or against the said Rule. The case is pertaining to the individual’s claim of pension. There is no specific prayer challenging the vires of Rule 11(4) of the Tamilnadu Pension Rules, 1978. Thus, the Court cannot declare a provision of law or Rule as unconstitutional without giving an opportunity of hearing to the State Government. More so, unless the vires of a Rule is specifically challenged, Courts cannot conduct an exercise of testing its constitutionality. Such arbitrary exercise of power may have dire consequences. It is also antithetical to the principles of natural justice. The rule of law dictates against usage of Article 226 to nullify a law in the absence of a specific challenge to the same.
7. Learned Advocate General would submit that the supremacy of the power of Parliament and the State legislature under the Constitution and the law enacted cannot be ordinarily be interfered with by the Courts in exercise of powers of judicial review. Under normal circumstances, when a provision of law is brought under challenge before the Court, the scope of judicial review in terms of testing the constitutionality of a provision of law itself should be used sparingly and only when it goes against against the tenets of the constitution. Such being the case, the Courts, cannot on its own accord test the constitutionality of a provision of law when it is not brought under challenge before the Court as a routine affair. Though suo motu powers rests with the Court even under Article 226, it must be used in rarest of rare and exceptional circumstances where such legal provision goes against the foundational principles of Constitution thereby warranting interference of Court and even in such circumstances, the necessary parties including the State are to be heard for declaring law to be unconstitutional.
8. In support of the above submission, learned Advocate General would rely on the following decisions of the Hon’ble Supreme Court.
i) Dhanraj vs. Vikram Singh reported in 2023 SCC online 724 . The relevant portion of the judgment is extracted hereunder:
5. After having heard the learned counsel appearing for the parties, we are of the view that the entire exercise undertaken by the High Court of going into the issue of validity of the provisions of the 1961 Act and the rules framed thereunder was uncalled for. The reason is there was no challenge to the validity of the provisions of the 1961 Act in the writ petition.
6. The High Court records that there is a conflict between certain provisions of the 1961 Act and Section 4(g) of PESA. It is also observed that there is a conflict between proviso to Rule 4(2) of the 1996 Rules framed under the 1961 Act with Section 4(g) of PESA.
7. Surprisingly, the High Court expressed a view that the law departments of the State and the Union should have a dialogue to remove the discrepancies. Further, the Court directed that till the discrepancies are removed by the legislatures, the provisions of the 1961 Act and the 1996 Rules framed thereunder to the extent of repugnancy with PESA shall be ignored “for practical application”. Thereafter, the High Court proceeded to issue a Writ of Mandamus directing the State to implement the provisions of PESA for the elections of Panchayats at all levels in the districts of Dhule and Nandurbar.
8. The law is well settled. There is always a presumption of constitutionality in favour of a statutory instrument. Secondly, in the writ petition, there are no pleadings to show in what manner there is a repugnancy between the relevant provisions of the 1961 Act and Section 4(g) of PESA. Thirdly, there is no challenge to the provisions of the 1961 Act and the rules framed thereunder in the writ petition. Therefore, obviously, the State had no notice of the contentions which were raised at a time of hearing of the writ petition regarding the validity of the 1961 Act. Even a notice was not issued to the Advocate General of the State.
…
…
10. His second submission is that it was not necessary for the writ petitioners to incorporate a specific challenge to the statutory provisions of the State enactment. If during the course of hearing the Court finds that the legislature lacked competence, it can always go into the issue of validity of the enactment. Thirdly, he submits that in view of Article 144 of the Constitution of India, this Court should do substantial justice. Lastly, he submits that if hypertechnical approach is adopted by this Court, the object for which certain provisions were incorporated in the Constitution for the benefit of the Scheduled Tribes, will be completely defeated.
11. With greatest respect to the learned counsel for the original writ petitioners, we cannot accept any of these submissions. There is not even a whisper of a challenge incorporated in the writ petition to the 1961 Act and the rules framed thereunder. The State was not called upon to answer the issue of either repugnancy or lack of legislative competence. Moreover, there was no notice issued to the Advocate General of the State.
12. In absence of specific pleadings, a Writ Court ought not to have gone into the issues of repugnancy or lack of legislative competence. Learned counsel appearing for the writ petitioners (6th and 7th respondents) relies upon various decisions of this Court including the landmark decision in the case of S.P. Gupta v. Union of India3.
13. We are of the view that in absence of any specific challenge to the validity of the statutory provisions, the High Court ought not to have undertaken the exercise of going into the question of repugnancy. We fail to understand the propriety of the observation that the law departments of the State and the Union should have a dialogue to remove the discrepancy. Moreover, the High Court has not proceeded to strike down the relevant provisions which were held to be repugnant to PESA. It only directs that till the discrepancy is removed by the legislature, certain provisions of the 1961 Act and the rules framed thereunder shall be ignored. Such approach by the writ Court is not at all called for. Without holding that the statutory provisions are not constitutionally valid, the High Court could not have issued a direction not to implement the statutory provisions.
ii) State of Maharashtra and others vs. Jalgaon Miunicipal Council and others reported in 2003(9) SCC 731 . The relevant portion of the judgment is extracted hereunder:
33. It is true that sub-section (3) of Section 3 of the MRMC Act prescribes for inviting objections by affording two months’ time and that was done on 16-10-2001. However, the statutory provision was amended by the Ordinance and the period of “two months” stood substituted by a period of “not less than 30 days”. The statutory provision has to be read as amended. The petitions filed before the High Court did not lay any challenge to the vires of the Ordinance either on the ground of unreasonability or on the possible ground of curtailing a vested right to prefer objections or on the ground of unreasonability. In the absence of any challenge having been laid, the constitutional validity of the amendment cannot be gone into. The validity of the action i.e. the notice inviting objections has to be tested in the light of the statutory requirement that the period of notice statutorily prescribed is of a duration of “not less than 30 days” which in the case at hand it is. Thus the notification dated 16-10-2001, as amended by the subsequent notification dated 15-11-2001, satisfies the requirement of the principles of natural justice as also of the procedure statutorily prescribed.
9. This Full Bench is of the view that the declaration in V.Ganapathy’s case that Rule 11 of the Pension Rules and the Government Order is unconstitutional, since it restricts the benefits of service rendered on temporary service to 50% only as it is hit by Article 14 of the Constitution of India cannot be construed as good law and the said judgment has denuded to lose its status as precedent. Moreover, on perusal of the order in V.Ganapathy’s case reveals absence of specific pleadings with respect to Rule 11(4). It is unreasoned order and shall be held to be bad in law.
10. Pension is the deferred portion of the wages for the services rendered by a government servant. Therefore, pension, though given the status of a right under the constitution still exists within the contours of the scheme framed by the Government under relevant Rules. In the present case, Tamilnadu Pension Rules, 1978. Therefore, though it is a right, it still operates within the framework as designed by the Government. The framework of Rule 11 as given under the Pension Rules is more of a welfare provision as it stipulates counting of 50% of temporary services along with the actual period of regular service of the government servant. Therefore, when the Government has given an additional benefit on top of counting of regular service, this cannot be taken as a ladder to claim the counting of full period of service rendered by the government servants temporarily. It must be understood that this counting of 50% temporary service itself is an additional benefit granted. Therefore, this additional benefit cannot be extended further by exercising the powers of judicial review under Article 226 in the absence of any such scheme under the Pension Rules.
11. There have been instances where in certain individual cases the Courts have widened the scheme to grant certain more benefits by counting the 100% of temporary service along with regular service thereby treating the temporary services as equivalent to regular service diluting the distinction drawn under Rule 11 thereby over inflating the scope of the provision and the Government also has implemented such orders by issuance of G.Os. However, this Court clarifies that such orders created an inconsistency in the application of Rule 11 thereby leading to a scenario of constitution of this Full Bench, whereby the second question putforth is whether such cases will infringe Article 14 of the Constitution. Since few Government servants got more than the allowed benefits through court order, there arises this question as to whether such Court modified pension schemes on individual cases should be extended to all. This Court is of the considered view that through certain individual orders have gone beyond the scope of Rule 11 of the TamilNadu Pension Rules and granted extensive benefits in terms of pension, such order cannot be taken as a precedent in all subsequent cases. Rule 11 shall be strictly applied henceforth to maintain the consistency and uniformity Over inflating or deflating Rule 11(4) would cause inconsistencies among the equals thereby violating Article 14 of the Constitution of India. Hence, the onus is on the constitutional courts to exercise judicial restraint while applying Rule 11(4) and not over inflating the provision. More so, in the absence of specific challenge to the provision, the Rule cannot be shaped on a case to case basis. The language of Rule 11(4) is crystal clear and has been extensively dealt with by another Full Bench of this Court in State of Tamilnadu represented by Secretary to Government, Public Works Department, Secretariat, Chennai-600 009 and others vs. R.Kaliyamoorthy reported in (2019) 6 CTC 705 wherein paragraph 38(iii) of the Order it is held that, “In case, a government employee/servant had also rendered service in non- provincialised service, or on consolidated pay or on honourarium or daily wages basis and if such services were regularised before 01.04.2003, half of such service rendered shall be counted for the purpose of conferment of pensionary benefits.”
12. In the past, individual and independent court orders have been granted in few cases and the grounds of relief are based more on misplaced sympathy than on the foothold of the Rules/law in place. Consequently, such individual orders have been followed as precedent in the consequential similarly placed cases creating spinning wheel of precedents to choose from, thereby causing inconsistencies and diluting the actual Rules/law.
13. In this backdrop, the relief sought for in the present writ petition is to direct the respondent to count the entire temporary services of the petitioner worked in the cadre of Field Surveyor cum Draftsman / Section Writer as qualifying service for the purpose of grant of pension in the light of the judgment in V.Ganapathy’s case reported in 2013 (2) MLJ 399. This Court is of the view that the case of the petitioner also to be considered strictly in terms of Rule 11(4) of the Tamilnadu Pension Rules,1978.
14. In view of the above legal position, it is made clear that Rule 11(4) of the Tamilnadu Pension Rules is to be applied stricto sensu in the terms and conditions stipulated for counting of 50% of the temporary services rendered by the government servants for extending pensionary benefits.
15. The reference questions are answered accordingly.
Registry is directed to list the writ petition before the writ Court holding roster for passing appropriate final orders in the light of the legal position dealt with by this Court in the present judgment.
(S.M.S.,J.) (K.R.,J.) (K.S.,J.)
07-04-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
vsi
To
1.The Secretary to Government, Rural Development Department, Secretariat, For St. George, Chennai-9.
2.The Commissioner / Director of
Survey & Settlement, Chepauk,Chennai – 600 005.
3.The Accountant General
(A&E), Teynampet, Chennai- 600 018.
S.M.SUBRAMANIAM J.
and
KRISHNAN RAMASAMY J.
and
K.SURENDER J.
vsi
WP No. 15727 of 2017
07-04-2026
