Madras High Court

R. Kalpana vs The State Of Tami Nadu on 25 August, 2021

W.P(MD)No.15142 of 2021

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 25.08.2021

CORAM

THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR

W.P(MD) No.15142 of 2021

R. Kalpana ... Petitioner
Vs.

1.The State of Tami Nadu,
Represented 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 Certiorarified Mandamus, calling for the
records of the first respondent in Kaditha (Nilai) No.90 dated 21.05.2021 issued
to the petitioner on 15.07.2021 and quash the same as illegal and consequently
direct the respondents herein to extend the Old Pension Scheme namely
General Provident Fund Scheme to the petitioner and pass orders.

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W.P(MD)No.15142 of 2021

For Petitioner : Mr.R.R.Kannan
For Respondents : Mr. S. Shanmugavel
Counsel for State

ORDER

This Writ Petition has been filed seeking for issuance of a Writ of

Mandamus, calling for the records of the first respondent in Kaditha (Nilai) No.

90 dated 21.05.2021 issued to the petitioner on 15.07.2021 and quash the same

as illegal and consequently direct the respondents herein 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.

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

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W.P(MD)No.15142 of 2021

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

08.12.2003. 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 16.07.2014 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

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

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W.P(MD)No.15142 of 2021

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 if 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 and directed the respondents to consider the

representation of the appellant therein. Therefore, the learned counsel sought

for grant of similar relief in the present Writ Petition.

6. Mr.S. Shanmugavel, learned Standing counsel for the fourth

respondent would oppose the submissions made by the learned counsel for the

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W.P(MD)No.15142 of 2021

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 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

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.

8. 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

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W.P(MD)No.15142 of 2021

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.”

9. Therefore, by virtue of the above said G.O., the claim of the petitioner,

who has been admittedly appointed as Block Resource Teacher on 08.12.2003,

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.

10. 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

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W.P(MD)No.15142 of 2021

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 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

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W.P(MD)No.15142 of 2021

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 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.”

11. 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 08.12.2003, i.e. after 01.04.2003 is not entitled to pension in https://www.mhc.tn.gov.in/judis/

W.P(MD)No.15142 of 2021

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 of the decision

cited supra, the prayer of the petitioner, 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.

12. For the foregoing reasons, the Writ Petition fails and it is accordingly,

dismissed. No costs.

                                                                                         25.08.2021

                Index              : Yes / No
                Internet           : Yes/ No

                mnr

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.

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W.P(MD)No.15142 of 2021

1.The State of Tami Nadu, Represented 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.15142 of 2021

D.KRISHNAKUMAR.J.,

mnr

W.P(MD) No.15142 of 2021

25.08.2021