1 W.P.(MD)NO.18093 OF 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 21.01.2026

CORAM

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

AND

THE HON'BLE MRS.JUSTICE R.KALAIMATHI

W.P.(MD)No.18093 of 2017

N.Roby,

S/o.Nesamani,

District Judge(Rtd),

414-A, 7

th

Middle Street,

Thiyagaraja Nagar,

Tirunelveli – 627 011,

Tirunelveli District. ... Petitioner

Vs.

1. High Court of Madras,

Madras,

Rep. By the Registrar General.

2. The Principal Accountant General(A&E),

New No.361, Anna Salai,

Teynampet, Chennai – 18.

3. The Registrar (Administration),

The Madurai Bench of Madras High Court,

Madurai.

4. The Pay and Accounts Officer,

Pay and Accounts Office, Madurai.

5. The State of Tamil Nadu,

Rep. By,

Principal Secretary to Government,

Public (Special B) Home (Courts-I) Department,

Chennai – 600 009. ... Respondents

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2 W.P.(MD)NO.18093 OF 2017

Prayer: Writ petition filed under Article 226 of the

Constitution of India, to issue a Writ of Certiorarified Mandamus,

calling for the records of the impugned order passed by the fifth

respondent in his proceedings G.O.Rt.No.2170 Public (Special B)

Department dated 20.06.2017 and quash the same and directing the

respondents to pay the interest at the rate then and there fixed under

Rule 45-A(I-A)(i)(a) of TNPR 1978 for the belated payment of DCRG

and at the rate of 12% per annum for the belated payment of Earned

Leave, Unearned Leave on Private Affairs, Pension Arrears and

Commuted Value of Pension within a stipulated time as fixed by this

Court.

For Petitioner : Mr.K.Jayamohan,

for Mr.V.Nagarajan.

For Respondents : Mr.G.Thalaimutharasu for R-1 & R-3.

Mr.P.Gunasekaran for R-2.

Mr.S.S.Madhavan,

Additional Government Pleader

for R-4 & R-5.

* * *

ORDER

The writ petitioner joined judicial service in 1983. He reached

the age of superannuation at 60 years on 30.11.2010. He was then

working as III Additional District Judge(PCR), Madurai. On

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3 W.P.(MD)NO.18093 OF 2017

27.10.2010, he was placed under suspension and vide proceedings

dated 29.11.2010, he was not permitted to retire but retained in

service. Subsequently, vide proceedings dated 22.07.2011, the

disciplinary action initiated against the petitioner was dropped. His

suspension was deemed to have been revoked and he was deemed to

have retired from the Tamil Nadu State Judicial service on

30.11.2010. The petitioner was able to encash his earned and

unearned leave only on 16.02.2012. The petitioner submitted his

pension application on 19.03.2012 which was forwarded to the

Principal Accountant General, Chennai. On 30.05.2012, the

petitioner's service particulars were called for. Upon receipt of the

same, the second respondent issued authorisation for pension,

commuted value of pension and DCRG. On 07.09.2012, cheque for

Rs.10 Lakhs being the DCRG amount was forwarded to the Principal

District Judge, Tirunelveli.

2. Since the petitioner received his pensionary benefits

including DCRG belatedly, he sought payment of interest for the

period of delay. Since his representation did not elicit any response,

he filed W.P.(MD)No.13944 of 2014. Vide order dated 03.04.2017, the

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4 W.P.(MD)NO.18093 OF 2017

Government was directed to consider his request. The Government

vide the impugned G.O.Rt.No.2170 Public (Special B) Department

dated 20.06.2017 sanctioned only a sum of Rs.14,665/- on the

belated payment of DCRG of Rs.10 Lakhs. A working sheet was also

annexed to the G.O. According to the Government, interest was

payable only with effect from 01.07.2012 to 31.08.2012 at 8.8% p.a.

Challenging the said G.O and seeking payment of interest for the

belated payment of DCRG, earned and unearned leave and commuted

value of pension, this writ petition has been filed.

3. The learned counsel appearing for the petitioner submitted

that as per the provisions set out in Tamil Nadu Pension Rules, the

petitioner is entitled to interest as prayed for. He further submitted

that the issue is no longer res integra. He relied on the following

decisions:-

i) W.A.(MD)No.599 of 2015(Cardamom Planters'

Association College Vs. G.Selva) dated 06.07.2015.

ii) W.P.No.32476 of 2018 (S.M.Khasim Vs. The

Principal Secretary to Government, Chennai) dated

28.02.2022.

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5 W.P.(MD)NO.18093 OF 2017

iii) W.P.(MD)No.10376 of 2014

(D.Chandrasekaran Vs. The State of Tamil Nadu) dated

14.12.2018.

4. Per contra, the learned Standing counsel for the second

respondent and the learned Standing counsel for the High Court as

well as the learned AGP for the Government submitted that the

petitioner is not entitled to any relief.

5. We carefully considered the rival contentions and went

through the materials on record.

6. It is not in dispute that the petitioner reached the age of

superannuation on 30.11.2010. But he was placed under suspension

and retained in service. However, the disciplinary action was

eventually dropped and the petitioner was fully exonerated.

Therefore, Rule 45-A(I-A) of the Tamil Nadu Pension Rules will apply.

It states that interest on DCRG is payable three months from the date

of retirement where the Government servant is exonerated of all

charges and where the DCRG is paid on the conclusion of disciplinary

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6 W.P.(MD)NO.18093 OF 2017

proceedings. The impugned G.O has failed to take note of this

statutory rule. On this ground, the impugned G.O is quashed and the

fifth respondent is directed to pay interest for the belated payment of

DCRG amount in terms of Rule 45-A(I-A) of the Tamil Nadu Pension

Rules, 1978.

7. It is not in dispute that the petitioner submitted his

application only on 19.03.2012. The officer of the Principal

Accountant General, Chennai had acted with sufficient speed and

cannot be faulted at all. Question arises whether the process of

settling the pensionary benefits should commence only upon receipt

of application from the retired employee. On this issue, there was

considerable debate at the bar. While the petitioner's counsel relied

on Rule 58(2) and Rule 57 of the Tamil Nadu Pension Rules, the

learned Standing counsel for the second respondent laid stress on

Rule 53. Rule 53, Rule 57 and Rule 58(1)& (2) read as follows:-

“53. Submission of application for pension.

- Every Government servant shall submit in writing

an application for pension in Form 5;

Provided that a [self-drawing Government

servant] shall send his application direct to the

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7 W.P.(MD)NO.18093 OF 2017

Audit Officer and [non-self drawing Government

servant] to the Head of Office.

(2)Every Government servant shall submit his

application for pension at least one year in advance

of the date of his anticipated retirement;

Provided that-

(i) in a case in which the date of retirement

cannot be foreseen one year in advance, the

application shall be submitted immediately after

the date of retirement is settled; and

(ii) a Government servant, proceeding on

leave preparatory to retirement in excess of one

year, shall submit the application at the time of

proceeding on such leave.

...

57. Preparation of pension paper.- The

Audit Officer concerned shall undertake the work of

preparing pension papers in Form 5 two years

before the date on which a Government servant is

due to retire on superannuation, or on the date on

which he proceeds on leave preparatory to

retirement, whichever is earlier. This work shall not

be delayed till the Government servant has actually

submitted his application for pension.

Note. - (1) In this rule and in rules 58, 59 and

60 the expression "Government servant" means a

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8 W.P.(MD)NO.18093 OF 2017

self drawing Government Servant whose pay and

allowance are drawn by himself.

Note (2)- Where the office of the authority

competent to sanction pension to a retiring

Government servant is situated in the circle of an

Audit Officer other than the Audit Officer who

audits the pay and allowances of such retiring

Government servant immediately before his

retirement the later, Audit Officer shall be the Audit

Officer for the purpose of this rule.

58. Further action to sanction pension.

(1) (a) The Audit Officer concerned shall send to every

Government servant, under intimation to the Head

of the Department, or where their retiring

Government servant is himself the Head of the

Department, to the Administrative Department

concerned, the application for pension in Form 5

one year in advance of the date on which the

Government servant attains the age of

superannuation or before the date of his anticipated

retirement, if earlier with the request that is should

be returned to him duly completed within a period

of [six months] from the date of issue of intimation

to the Government servant by him but in no case

later than the actual date of retirement.

(b) The Audit Officer shall also draw the

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9 W.P.(MD)NO.18093 OF 2017

attention of the retiring Government servant to the

provisions of rule 78.

(2)On receipt of a copy of application for

pension from the Audit Officer, the retiring

Government servant shall return it duly completed

to the Audit Officer within the period mentioned in

sub-rule (1) under intimation to the Head of the

Department or the Administrative Department if he

is himself the Head of the Department.”

8. It is true that the preparation of pension papers should take

place independently and ought not to await the submission of the

pension application. But there can be no disbursement of pensionary

benefits unless an application is submitted. It is only the retiring or

retired employee who can submit the application. We, therefore, hold

that if the applicant belatedly submits his pension application, he

cannot take claim interest for the period of delay which is

attributable to him. The maxim “one cannot take advantage of one's

own wrong” is applicable in such cases. No doubt, Rule 58(2) speaks

of receipt of the pension application from the Audit Officer through

proper channel. The Rule further states that thereafter, the retiring

Government servant shall return it duly completed. In our view, this

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10 W.P.(MD)NO.18093 OF 2017

provision has become obsolete and cannot have any application in

the present context. Statutory provisions can become redundant due

to march of time, technological developments and societal changes.

There are still sections in the statute pertaining to service of notices

through beat of tom-tom. Some years back, a few hundred statutes

were repealed wholesale. Even if they had not been repealed, they

would still be lying in limbo in the statute books. Such fate can befall

individual provisions too. Certain administrative formalities and

requirements though contemplated by rules and regulations may not

be observed. They might have ceased to be in practice. They may no

longer be in vogue. No litigant can take advantage of such archaic

provisions. The doctrine of obsolescence is applicable in such cases.

9. The rules envisage submission of the pension application in

Form V. It is not as if Form V is a scarce commodity which is

exclusively available with the Audit Officer. It is freely available.

Therefore, the applicant cannot be heard to say that since he did not

receive Form V from the Audit Officer, he could not submit the

pension application. The petitioner's proceedings got closed on

21.12.2011. Nothing stopped him from submitting his pension

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11 W.P.(MD)NO.18093 OF 2017

application immediately thereafter. He delayed the matter by few

more months. We are therefore of the view that for this delay from

22.12.2011 till 18.03.2012, he will not be entitled to any interest for

the DCRG amount.

10. The question of paying interest on the commuted value of

pension does not arise. Note III to Rule 9 of the Tamil Nadu Civil

Pension Commutation Rules states that no Government servant

against whom departmental or judicial proceedings have been

instituted shall be eligible to commute a fraction of the provisional

pension during the pendency of such proceedings. The right to seek

commutation of pension would arise only upon the conclusion of the

departmental proceedings. The proceedings against the petitioner

were concluded only in December 2011. The Pension Rules do not

provide for payment of interest on the commuted value of pension in

such cases. There is no provision corresponding to Rule 45-A(I-A)

providing for payment of interest on the commuted value of pension.

Therefore, we cannot sustain the demand made by the petitioner for

payment of interest under this head. For the very same reasons, we

are not in a position to award interest for the encashed value of

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earned and unearned leave.

11. No doubt, the petitioner's pensionary benefits were settled

belatedly. But the fact remains he was retained in service after he

reached the age of superannuation. He continued to receive

subsistence allowance equivalent to provisional pension till the

proceedings were dropped. The petitioner's right to receive pension

arose only on such dropping of proceedings. The petitioner

submitted his pension application only in March 2012. Within few

months thereafter, his benefits were settled and he began to draw

regular pension. A person who was retained in service and who was

in receipt of subsistence allowance, on his exoneration, cannot seek

interest for belated payment of his terminal benefits except in the

case of DCRG. Of course, it goes without saying that within three

months from the submission of the pension application, the benefits

have to be settled. He would be entitled to demand interest for any

delay thereafter. In this view of the matter, we are unable to concur

with the view taken in the decisions relied on by the learned counsel

for the writ petitioner.

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13 W.P.(MD)NO.18093 OF 2017

12. We have upheld the claim of the petitioner for payment of

interest at the statutory rate on the belated settlement of the DCRG

amount. Since the petitioner was not paid the same, this DCRG

component would carry interest at the rate of 6% p.a. with effect

from 08.09.2012 till date of payment. The impugned G.O is

accordingly modified. The fifth respondent shall quantify the amount

payable to the petitioner in the light of this order and pay the same

within twelve weeks from the date of receipt of a copy of this order.

This writ petition stands partly allowed. No costs.

(G.R.SWAMINATHAN, J.) & (R.KALAIMATHI, J.)

21

st

January 2026

NCC : Yes / No

Index : Yes / No

Internet : Yes / No

PMU

To:

1. The Pay and Accounts Officer,

Pay and Accounts Office, Madurai.

2. The Principal Secretary to Government,

Public (Special B) Home (Courts-I) Department,

Chennai – 600 009.

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14 W.P.(MD)NO.18093 OF 2017

G.R.SWAMINATHAN, J.

AND

R.KALAIMATHI, J.

PMU

W.P.(MD)No.18093 Of 2017

21.01.2026

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15 W.P.(MD)NO.18093 OF 2017

7. It is seen that the Government has issued

G.O.Ms.No.125 Health and Family Welfare (IMI-1)

dated 10.04.2018, wherein the Adhoc Rules relating

to temporary posts in Government Ayurveda

Medical College and Hospital in Tamil Nadu Medical

Service was framed. Admittedly the said Adhoc

Rules was framed pending writ petition. The

contention of the respondents is that since the

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16 W.P.(MD)NO.18093 OF 2017

petitioner's appointment is only on 26.12.2011, the

petitioner cannot claim right over the said post.

Especially after framing of the rules, any

appointment to any post will be as per the said

Rules. Therefore, the petitioner is not entitled to

any relief and prayed to dismiss the writ petition.

The contention of the petitioner is that, if the plea

of the respondents is accepted, then the 4th

respondent who was also appointed in the same

year i.e. 2011, which is well before framing of the

Adhoc Rules is not entitled to appointment and

therefore, the said appointment should also be

considered as 10(a)(i) appointment under the

Tamil Nadu State and Subordinate Rules. But the

respondents have refuted the said contention and

submitted that based on the qualification

prescribed by the Central Council of Indian

Medicine, the petitioner cannot have any grievance.

8. By taking all these facts into consideration,

this Court is not able to accept the contention of the

respondents. When the Adhoc Rules are framed on

10.04.2018, any appointment prior to the same

ought to be considered as 10(a) (i) appointment

under the Tamil Nadu State and Subordinate Rules.

The petitioner as well as the 4th respondent are on

the same ground and they ought to be considered

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17 W.P.(MD)NO.18093 OF 2017

as 10(a)(i) appointees. In such circumstances, the

4th respondent appointment based on the

notification and the qualification prescribed by the

Central Council of Indian Medicine will not make

the appointment free from the clutches of 10(a)(i)

and hence the 4th respondent cannot have merit

over the petitioner. Either the respondents should

treat all the 10(a)(i) appointees equal or should go

for fresh recruitment under Adhoc Rules. Hence,

this Court is inclined to quash the order issued to

the 4th respondent.

9. It is pertinent to mention that the 10(a)(i)

employees are in the service for more than 10 years

and they would be in their mid service. If they are

not regularized, at this point of time they could

neither be in service nor be in their private

practice. When the Government intended to open

the new College, the petitioner and the other

similarly placed persons with a fond hope that their

service would be regularized, accepted the 10(a)(i)

appointment, hence the candidates’ right ought to

be protected.

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