Madras High Court
The Commissioner vs A.Dhamayanthi on 10 August, 2023
W.A.No.1300 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 10.08.2023
CORAM
THE HONOURABLE Mr.JUSTICE R.MAHADEVAN
AND
THE HONOURABLE Mr.JUSTICE MOHAMMED SHAFFIQ
W.A.No.1300 of 2023
and C.M.P.No.12922 of 2023
1.The Commissioner,
Government Date Centre,
Guindy, Chennai - 600 025.
(Now 5th Floor Perasiriyar
K.Anbazhagan Maaligai
No. 571, Anna Salai, Nandanam, Chennai 035.)
2.The Additional Assistant,
Elementary Education Officer,
Tiruvannamalai District.
3.The Head Master,
Panchayat Union Middle School,
Andipalayam, Tiruvannamalai Panchayat Union,
Tiruvannamalai District. .. Appellants
Vs.
A.Dhamayanthi
No. 73, G Muthuvinayakarkovil street,
Thiruvannamalai Town, Arani,
Tiruvannamalai District. .. Respondent
1/8
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W.A.No.1300 of 2023
Writ Appeal filed under Clause 15 of the Letters Patent, against the
order dated 30.11.2021 passed by this court in W.P.No.16562 of 2010.
For Appellants : Mr.Silambannan,
Additional Advocate General
assisted by Mrs.Mythreye Chandru
Special Government Pleader
For Respondent : Ms.G.Sumitra
JUDGMENT
[Judgment of the Court was delivered by R.MAHADEVAN, J.]
Challenging the order dated 30.11.2021 passed by the learned Judge
in W.P.No.16562 of 2010, the present appeal has been filed by the appellant.
2. It is the case of the appellants that the respondent was initially
appointed as Assistant in Natesan Pillai Aided Primary School,
Tiruvannamalai, on 09.04.2003 and ASTPF account no.337865 was
assigned to her. Subsequently, the respondent resigned the said post and
joined duty as a Secondary Grade Teacher in Panchayat Union Middle
School, Andipalayam, Tiruvannamalai, through employment exchange on
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W.A.No.1300 of 2023
16.07.2009. Thereafter, the respondent sent a representation to the second
appellant to open a new TPF (Teacher Provident Fund) account and
requested to transfer the amount already lying in ASTPF account no.337865
to the newly created TPF account. As per G.O.(Ms).No.259, Finance
(Pension) Department, dated 06.08.2003, the employees who are recruited
on or after 01.04.2003 will be covered under the New Contribution Pension
Scheme (CPS). In view of the same and also based on the standing
instructions issued by the authorities in Na.Ka.No.10994/D/2006 dated
18.01.2006, the representation of the respondent was rejected by the first
appellant on 15.02.2010. Aggrieved by the same, the respondent filed a writ
petition in WP.No.16562 of 2010, which was allowed and the order dated
15.02.2010 passed by the first appellant was set aside by the learned Judge,
by order dated 30.11.2021, the relevant passage of which is usefully
extracted below:
“4. The learned Additional Government Pleader appearing
for the respondents would submit that the request of the petitioner for
transferring the amount which is already lying in ASTPF A/c.
No.337865 of the petitioner to the new TPF account to be created for
the petitioner will be considered and new TPF account will be created
for the petitioner.
5. In view of the fact that the petitioner is not claiming
pension under old Pension Scheme and has only request is to transfer
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W.A.No.1300 of 2023
the amount, which is already lying in ASTPF A/c No.337865 of the
petitioner to the new TPF Account to be created for the petitioner and
the reason stated by the respondent is contrary to the request made by
the petitioner, the impugned order is set aside. Consequently, the
Commissioner, Government Data Centre, Guindy, Chennai, the first
respondent herein is directed to pass order afresh in the light of the
observation made hereinabove, as expeditiously as possible preferably
within a period of 12 weeks from the date of receipt of copy of the order.
No costs.”
Challenging the aforesaid order, the appellants / Department are before this
court with the present appeal.
3. According to the learned Additional Advocate General
appearing for the appellants, in view of G.O.Ms.No.259 Finance (Pension)
Department dated 06.08.2003, and G.O.Ms.No.304 Finance Department
dated 27.05.2004, the respondent / writ petitioner is not eligible for the old
pension scheme (PUTPF), since she has joined the service as secondary
grade teacher only after 01.04.2003 in Natesan Pillai Private Aided School
i.e., 09.04.2003 and therefore, a new TPF account cannot be created for the
respondent / writ petitioner and she is entitled only for CPS. In such
circumstances, transfer of funds lying in ASTPF account no.337865 of the
respondent / writ petitioner to the new TPF account to be created for her, as
directed by the learned Judge, cannot be possibly performed by the
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W.A.No.1300 of 2023
appellant authorities, and the doctrine of impossibility is applicable to the
facts of this case. However, the learned Judge erred in allowing the writ
petition filed by the respondent / writ petitioner by the order impugned
herein.
4. On the above submissions, we have heard the learned counsel
for the respondent / writ petitioner.
5. Admittedly, the respondent / writ petitioner joined the service
after 01.04.2003 and she is entitled only for the new pension scheme viz.,
Contributory Pension Scheme. It is also an admitted fact that the respondent
/ writ petitioner had already opened ASTPF A/c No.337865 while she was
working in Natesan Pillai Aided Primary School, Tiruvannamalai and made
contribution. The claim of the respondent herein seeking to transfer the
amount lying in ASTPF account to the TPF account to be created by the first
appellant, was not considered by the appellant authorities, stating that a new
TPF account cannot be created for the respondent / writ petitioner, as she
was appointed after 01.04.2003. However, the same was not properly placed
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W.A.No.1300 of 2023
before the writ court, as evident from the observation made in paragraph 4
of the order impugned herein. Therefore, we grant liberty to the appellants
to approach the writ court by filing petition for clarification / modification
of the order passed in the writ petition.
6. Accordingly, this writ appeal stands disposed of. No costs.
Consequently, connected miscellaneous petition is closed.
[R.M.D., J.] [M.S.Q., J.]
10.08.2023
Index: Yes / No
Speaking order/ Non-speaking order
Neutral Citation: Yes / No
nsd
To
1.The Commissioner,
Government Date Centre,
Guindy, Chennai - 600 025.
(Now 5th Floor Perasiriyar
K.Anbazhagan Maaligai
No. 571, Anna Salai, Nandanam, Chennai 035.)
2.The Additional Assistant,
Elementary Education Officer,
Tiruvannamalai District.
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W.A.No.1300 of 2023
3.The Head Master,
Panchayat Union Middle School,
Andipalayam, Tiruvannamalai Panchayat Union,
Tiruvannamalai District.
https://www.mhc.tn.gov.in/judis
W.A.No.1300 of 2023
R.MAHADEVAN, J.
AND
MOHAMMED SHAFFIQ, J.
nsd
W.A.No.1300 of 2023
10.08.2023
https://www.mhc.tn.gov.in/judis
