Madras High Court
The District Elementary ... vs S.Shanthi ... 1St on 28 July, 2021
W.A.(MD)No.1464 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28.07.2021
CORAM
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.A.(MD)No.1464 of 2021
and
C.M.P(MD).No.5993 of 2021
1. The District Elementary Educational Officer,
Tirunelveli, Tirunelveli District.
2. The Assistant Elementary Educational Officer,
Kalakadu, Tirunelveli District. ... Appellants/Respondents
Vs.
1. S.Shanthi ... 1st Respondent/Petitioner
2. The Manager,
S.V.Hindu Primary School,
Eruvadi - 627 103,
Tirunelveli District. ... 2nd Respondent/3rd Respondent
Prayer: Writ Appeal filed under Clause 15 of Letters Patent, against the order of
this Court made in W.P.(MD) No.8154 of 2016, dated 25.11.2019.
For Appellants : Mr.A.K.Manikkam
Standing Counsel for Government
For Respondent : Mr.T.Pon Ramkumar for R1
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W.A.(MD)No.1464 of 2021
JUDGMENT
[Judgment of the Court was delivered by T.S.SIVAGNANAM,J.]
We have heard Mr.A.K.Manikkam, learned Government Counsel
appearing for the appellants and Mr.T.Pon Ramkumar, learned counsel
appearing for the respondent.
2. This writ appeal is directed against the order dated 25.11.2019 in
W.P(MD).No.8154 of 2016. The writ petition was allowed by the impugned
order and the appellants were directed to count the service of the petitioner
rendered before the approval for pensionary benefits.
3. The admitted facts are that the respondent-writ petitioner was a
graduate teacher, who was appointed in the secondary grade teacher's vacancy
pursuant to the order dated 12.11.2002. The issue was whether a graduate
teacher would be eligible to handle primary classes and middle school classes,
because, they are required to undergo a Child Psychology Training. Pursuant to
the order dated 12.11.2002, the respondent joined service on 13.03.2003 in the
secondary grade vacancy, which was caused due to retirement.
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W.A.(MD)No.1464 of 2021
4. On 01.4.2003, the contributory pension scheme came into vogue.
Admittedly, the respondent-writ petitioner had completed her Child Psychology
Training on 09.01.2004 and her appointment as secondary graduate teacher was
approved on 10.01.2004.
5. The point for consideration in this appeal is as to how the service of
the respondent between the period 13.03.2003 to 10.01.2004 should be
reckoned. This issue is no longer res integra and has been decided by the
Hon'ble Division Bench in the case of State of Tamil Nadu and Others vs.
Pallivasal Primary School, 2004 (2) L.W. 591, and in paragraph No.8 of the
said judgment, it has been stated that the past service shall be counted for
pension.
6. The writ petitioner is a scheduled caste candidate and when a
similar issue arose for consideration before the Hon'ble Division Bench in the
case of V.Vasanthi vs. State of Tamil Nadu, (2019) 4 CTC 865, the writ appeal
was allowed. The operative portion of the judgment reads as follows:
"12. A careful perusal of the above observation made in the
said Pallivasal Primary School case would show that even though
approval of the appointment of the teacher, who has undergone Child
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W.A.(MD)No.1464 of 2021
Psychology Training, will take effect only on completion of such
training, the past service rendered by such teacher i.e., service
rendered before the completion of such training, is bound to be counted
for pension. In other words, the service period of such teacher
commences from the date of the appointment and not from the date of
approval, even though the monetary benefits start to accrue only from
the date of completion of the training. Therefore, for all practical
purposes, the date of appointment is not altered and remain to be the
same. Therefore, the date of approval of appointment of the writ
petitioner cannot be construed as the date relevant for considering the
applicability of the pension scheme and on the other hand, it is the
original date, on which the writ petitioner got appointed that matters
for considering as to whether the writ petitioner is governed under the
Old Pension Scheme or not. At this juncture, it is relevant to note that
in G.O.Ms.No.259, Finance (Pension) Department, dated 06.08.2003,
a proviso to Rule 2 of the Tamil Nadu Pension Rule 1978, was
introduced by way of amendment, wherein and whereby, it is
contemplated that the Tamil Nadu Pension Rules 1978 shall not apply
to Government Servants "appointed" on or after 1st April 2003 to
services and posts. The word "appointed" referred in the said proviso
cannot be construed to mean approval of such appointment.
13. In fact, the very same issue was considered by one of us
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W.A.(MD)No.1464 of 2021
(KRCBJ) in W.P(MD)No.3308 of 2007. The Contributory Pension
Scheme was introduced to the newly recruited employees, who are
recruited on or after 01.04.2003. Relevant clause 3(i) of G.O.Ms.No.
259 dated 06.08.2003, which has introduced the New Contributory
Pension Scheme, was taken into consideration in the said case and it
was found that the said Government Order introducing New
Contributory Pension Scheme, would apply only to persons, who were
recruited on or after 01.04.2003 and not in respect of persons, who
were recruited earlier to 01.04.2003. In that case, though the writ
petitioner therein was recruited on 26.03.2003, he jointed the duty on
04.04.2003 after obtaining the medical certificate from the Medical
Board, since he is a physically challenged person. Therefore, it was
found therein that the date of joining of such person cannot be
considered as date of appointment as such event of appointment had
already taken place well before 01.04.2003. We are informed that the
above said order has been given effect to.
14. Under the above stated facts and circumstances, we find
that the Writ Court is not justified in dismissing the writ petition on the
reason that the writ petitioner has competed her Child Psychology
Course only on 27.10.2004 and therefore, she is not entitled to made
claim under the Old Pension Scheme. Thus, the writ petitioner is
entitled to succeed."
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W.A.(MD)No.1464 of 2021
7. In the light of the above legal position, the relief granted by the
learned Writ Court does not call for any interference. Accordingly, this Writ
Appeal fails and dismissed. No costs. Consequently, connected miscellaneous
petition is closed.
Index :Yes/No (T.S.S.,J.) (S.A.I.,J.)
Internet :Yes/No 28.07.2021
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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.
T.S.SIVAGNANAM, J.
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W.A.(MD)No.1464 of 2021
and
S.ANANTHI, J.
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W.A.(MD)No.1464 of 2021
28.07.2021
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