Madras High Court
S.Jacintha Rani vs The State Of Tami Nadu on 24 August, 2021
W.P(MD)No.15050 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.08.2021
CORAM
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
W.P(MD) No.15050 of 2021
S.Jacintha Rani ... Petitioner
Vs.
1.The State of Tami Nadu,
rep. by its Secretary,
School Education Department,
St. George Fort,
Chennai.
2.The Director of School Education,
Department of School Education,
Chennai-600 006.
3.The Accountant General,
DMS,
Nandanam,
Chennai.
4.The Member Secretary,
Teachers Recruitment Board,
DPI Compound,
Chennai-600 006. ...Respondents.
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Mandamus, to direct the respondents
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W.P(MD)No.15050 of 2021
herein to consider the representation of the petitioner dated 28.11.2019 and
extend the old pension scheme, namely, General Provident Fund Scheme to the
petitioner.
For Petitioner : Mr.R.R.Kannan
For Respondents : Mr.A.K.Manickam,
learned counsel for R1 & R2
Mrs.Mahalakshmi, Standing counsel for
R3
Mr.V.R.Shanmuganathan, Standing
counsel for R4.
ORDER
This Writ Petition has been filed seeking for issuance of a Writ of
Mandamus, directing the respondents herein to consider the representation of
the petitioner dated 28.11.2019 and to extend the Old Pension Scheme, namely,
General Provident Fund Scheme to the petitioner.
2. By consent of both parties, the Writ Petition itself is taken up for final
disposal.
3.Heard the learned counsel for the petitioner and the learned counsel for
the respondents.
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W.P(MD)No.15050 of 2021
4. According to the petitioner, the Teachers Recruitment Board (TRB),
the 4th respondent herein, has issued a Notification for recruitment of Block
Resource Teachers and School Assistants and consequently, conducted
examination on 21.04.2002. The petitioner is one of the applicants in the said
recruitment process. The first phase of selected candidates were appointed on
11.07.2002 and the 2nd phase of selected candidates were appointed on
17.03.2003. Theses two phases of recruitment were just prior to introduction of
the Contributory Pension Scheme (CPS), which was introduced with effect
from 01.04.2003. Since these two phases of selected candidates being
appointed well before the advent of the Contributory Pension Scheme, i.e.
Before 01.04.2003, they were extended the benefit of General Provident Fund
Scheme. The writ petitioner was appointed as Block Resource Teacher on
29.05.2003. Since the petitioner was appointed after 01.04.2003, she has been
brought under the new Pension Scheme, i.e. Contributory Pension Scheme.
Hence, the petitioner made a representation on 28.11.2019 to the respondents,
praying to consider her claim to extend the benefit of General Provident Fund
Scheme. Since no response is forthcoming despite her representation, the
petitioner has come forward with the present Writ Petition.
5. Mr.R.R.Kannan, learned counsel appearing for the petitioner would
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W.P(MD)No.15050 of 2021
submit that pursuant to the Notification, dated 11.02.2002, the 4th
respondent/TRB conducted the examination on 21.04.2002 and both the School
Assistants and the Block Resource Teachers were appointed in a phased
manner, in which, the similarly placed candidates who were appointed by 1st
phase of recruitment on 11.02.2002 as well as 2nd phase of recruitment on
17.03.2003 were brought under the old Pension Scheme, i.e. General Provident
Fund Scheme, while the candidates including the petitioner, who were selected
pursuant to the same Notification and appointed by 3rd phase of recruitment on
06.05.2003, were denied the benefit of General Provident Fund Scheme on the
ground that they were appointed after 01.04.2003, i.e. after introduction of new
pension scheme. The learned counsel for the petitioner would submit that since
the 4th respondent delayed the appointment process in respect of Block
Resource Teachers, which made them unqualified for the benefit of old Pension
Scheme. He pointed out that the 4th respondent had finalized the appointment
process of Block Resource Teachers' in time, they would have certainly been
brought under the old Pension Scheme. The learned counsel would refer to a
decision of a Division Bench of this Court in W.A.(MD) No.1026 of 2019,
wherein, the claim of the similarly placed person, like that of the petitioner
herein, was considered the directed the respondents to consider the
representation of the appellant therein. Therefore, the learned counsel sought
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W.P(MD)No.15050 of 2021
for grant of similar relief in the present Writ Petition.
6. Mr.V.R.Shanmughanathan, learned Standing counsel for the fourth
respondent would oppose the submissions made by the learned counsel for the
petitioner. He would draw the attention of this Court to the G.O.Ms.No.259
Finance (Pension) Department dated 6.8.2003, wherein, a new Pension Scheme
was introduced by the Government, amending the Tamil Nadu Pension Rules
1978 by inserting a proviso to Rule 2 of the Tamil Nadu Pension Rules, which
specifically stipulates that the Pension Rules shall not apply to the Government
servants appointed on or after the 01.04.2003. By virtue of this, the learned
Standing counsel would submit that the petitioner's representation cannot be
considered and hence, he sought for dismissal of the Writ Petition.
7. The learned Standing counsel appearing for the respondents 1 & 2
reiterated the submissions made by the learned Standing counsel for the fourth
respondent.
8. The petitioner claims that since the 4th respondent/TRB delayed the
appointment process, she was not brought under the old Pension Scheme, while
the similarly placed persons who were recruited pursuant to the same
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W.P(MD)No.15050 of 2021
notification well before the advent of the new scheme, i.e. 01.04.2003 and
hence, she is entitled to be brought under old Pension Scheme.
9. It is pertinent to note that by G.O.Ms.No.259 Finance (Pension)
Department, dated 6.8.2003, the Government of Tamil Nadu has introduced a
new Pension Scheme, i.e. Contributory Pension Scheme based on defined
contributions for the employees of the State, who are newly recruited after
01.04.2003 and amended the Tamil Nadu Pension Rules 1978 by introducing a
proviso to Rule 2 of the Tamil Nadu Pension Rules, which reads as follows:
“Provided that these rules shall not apply to
Government servants appointed on or after the
01.04.2003, to services and posts in connection with
the affairs of the State which are borne on pensionable
establishments, whether temporary or permanent.”
10. Therefore, by virtue of the above said G.O., the claim of the
petitioner, who has been admittedly appointed as Block Resource Teacher on
06.05.2003, i.e. after 01.04.2003, on which date, the new Pension Scheme came
to be introduced and hence, as per amended proviso to Rule 2 of the Tamil
Nadu Pension Rules 1978, the petitioner is not entitled to the benefit of the old
Pension Scheme.
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W.P(MD)No.15050 of 2021
11. In fact, considering all the aspects of the matter relating to the
Pension both under new and old Scheme, a Full Bench of this Court in a batch
of cases, in W.A.Nos.158 of 2016, etc., (State Government, rep. by Secretary
to Government versus R.Kaliyamoorthy), has categorically held as under in
paras 44 and 45:
“44. The aforesaid Judgment of the
Honourable Supreme Court (State of Maharashtra v.
Digambar [(1995) 4 SCC 683] would squarely apply
to this case. Merely because this Court has passed
multiple number of orders in favour of some of the
similarly placed persons like the writ petitioners, it
will not operate as resjudicata or it will preclude the
State Government from questioning those orders in a
parallel or similar proceedings. In such
circumstances, we are of the view that the orders,
hitherto passed by this Court, both single Bench or the
Division Bench will not operate as a bar for
maintaining these writ appeals or writ petitions or
those orders will not be considered as the one which
laid down any binding precedent to be followed in
other cases. An order, which was not passed in
accordance with the statutory provisions, need not be
followed by the Court at the instance of similarly
placed persons.
45. In the light of the above, we answer the
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W.P(MD)No.15050 of 2021
reference as follows:
i) Those who are freshly appointed on or after
01.04.2003 are not entitled to pension in view of
proviso to Rule 2 of Tamil Nadu Pension Rules, 1978
inserted by G.O.Ms.No.259 dated 06.08.2003
(ii) Those government servants/employees appointed
prior to 01.04.2003 whether on temporary or
permanent basis in terms of Rule 10 (a) (i) of Tamil
Nadu State and Subordinate Service Rules will be
entitled to get pension as per the Tamil Nadu Pension
Rules, 1978.
(iii) In case, a government employee/servant had
also rendered service in non-provincialised service,
or on consolidated pay or on honorarium or daily
wage 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.
(iv) Those government servants who were
appointed in the aforesaid four categories before the
cut off date and later appointed under Rule 10 (a) (i)
of Tamil Nadu State and Subordinate Service Rules
before 01.04.2003 and absorbed into regular service
after 01.04.2003 will not be entitled to count half of
their past service for the purpose of determination of
qualifying service for pension.
(v) Those government servants who were
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W.P(MD)No.15050 of 2021
appointed in the aforesaid four categories before
01.04.2003 but were absorbed in regular service after
01.04.2003 will not be entitled to count half of their
past service for the purpose of determination of
qualifying service for pension.”
12. Having regard to the decision of the Full Bench of this Court,
particularly para 45(1) extracted above, since admittedly, the petitioner was
appointed on 06.05.2003, i.e. after 01.04.2003 is not entitled to pension in
view of proviso to Rule 2 of Tamil Nadu Pension Rules, 1978 inserted by
G.O.Ms.No.259 dated 06.08.2003. Further, in view of para 44 extracted above,
the prayer of the petitioner to consider her representation as directed by a
Division Bench of this Court in W.A.(MD) No.1026 of 2019 in respect of
similarly placed person, cannot also be considered. Thus, no prima facie case is
made out to entertain the writ petition. Consequently, the writ petition is liable
to be rejected.
13. For the foregoing reasons, the Writ Petition fails and it is accordingly,
dismissed. No costs.
24.08.2021
Index : Yes / No
Internet : Yes/ No
dn
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W.P(MD)No.15050 of 2021
Note : In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
To
1.The State of Tami Nadu,
rep. by its Secretary,
School Education Department,
St. George Fort,
Chennai.
2.The Director of School Education,
Department of School Education,
Chennai-600 006.
3.The Accountant General,
DMS,
Nandanam,
Chennai.
4.The Member Secretary,
Teachers Recruitment Board,
DPI Compound,
Chennai-600 006.
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W.P(MD)No.15050 of 2021
D.KRISHNAKUMAR.J.,
dn
W.P(MD)No.15050 of 2021
24.08.2021
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