Madras High Court
Saravana Bose vs The Government Of Tamil Nadu on 18 August, 2023
W.P.(MD).No.16030 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.08.2023
CORAM
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
W.P.(MD).No.16030 of 2023
Saravana Bose ... Petitioner
Vs.
1.The Government of Tamil Nadu,
Represented by its Secretary to Government,
Finance (Pension) Department,
Fort St. George,
Chennai-9.
2.The Secretary to Government,
Home (Police-III) Department,
Fort St. George,
Chennai-9.
3.The Director General of Police,
Mylapore, Chennai.
4.The Chairman,
Tamil Nadu Uniformed Service Recruitment Board,
Chennai. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Mandamus, directing the respondents to
consider the representation of petitioner, dated 05.06.2023 and bring the
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W.P.(MD).No.16030 of 2023
petitioner under old pension scheme prevailed prior to implementation of
contributory pension scheme (CPS) vide G.O.No.259 Finance (pension)
department, dated 06.08.2023 and transfer the pension contribution collected
already from the petitioner to Old Pension Scheme.
For Petitioner : Mr.RM.Arun Swaminathan
For Respondents : Mr.P.Veera Kathiravan
Additional Advocate General
Assisted by
Mr.N.Muthuvijayan
Special Government Pleader
ORDER
The present writ petition has been filed seeking direction to the
respondents to consider the representation of petitioner, dated 05.06.2023 and
bring the petitioner under Old Pension Scheme prevailed prior to
implementation of contributory pension scheme (CPS) vide G.O.No.259
Finance (Pension) Department, dated 06.08.2023 and transfer the pension
contribution collected already from the petitioner to Old Pension Scheme.
2. Heard the learned Counsel for the petitioner and the learned
Additional Advocate General, who is assisted by the learned Special
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W.P.(MD).No.16030 of 2023
Government Pleader for the respondents and carefully perused the materials
available on record.
3. The petitioner joined as a Police Constable (Grade – II) on 27.02.2004.
The said selection was made pursuant to the notification issued by the fourth
respondent, where applications were invited for filling up 3,500 posts of Police
Constable (Grade – II) during the year 2000-2001. Based on the said
notification, the petitioner applied for the said post and he got selected and was
duly appointed on 27.02.2004. The first respondent issued a New Pension
Scheme namely, Contributory Pension Scheme vide G.O(Ms)No.259 of the
Finance (Pension) Department, dated 06.08.2003 with effect from 01.04.2003.
During the petitioner's tenure, Pension Contribution was deducted from his
salary. The petitioner ought to have been brought under the Old Pension
Scheme, since his selection process had commenced much prior to 01.04.2003
and there was a delay in completing the selection process and as a result,
appointment orders were given to the petitioner only on 27.02.2004, that is,
atleast after a period of 3 ½ years from the date of commencement of the
selection process. Since the petitioner's selection process took place by
notifying a vacancy of 3,500 posts much before the crucial date for fixing the
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W.P.(MD).No.16030 of 2023
Pension Scheme, that is, on 01.04.2003, the petitioner claiming him to be
entitled to the benefit of Old Pension Scheme has made a representation, dated
05.06.2023 to the respondents to extend him with a benefit of Old Pension
Scheme. However, the said representation was not considered and hence, this
writ petition came to be filed.
4. The learned Counsel for the petitioner relying upon the order passed
by the Hon'ble High Court of New Delhi in a batch of similar writ petitions
in the case of W.P(C)Nos.8208 of 2020 etc., dated 15.01.2021, wherein the
Hon'ble High Court of New Delhi has passed favourable order to the petitioner
and pressed for allowing this writ petition. The relevant portion of the said
order is extracted as follows:
“13. Having regard to the fact that in the present batch of
cases also the advertisement / notification was issued in
September, 2003 and June, 2003 i.e. prior to coming into force of
the present contributory pension scheme on 22nd December, 2003,
this Court is of the view that petitioners cannot be deprived of the
benefit of the Old Pension Scheme.
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W.P.(MD).No.16030 of 2023
14. This is more so when the batchmates of the petitioners
are getting this benefit under various judgments passed by this
Court.
15. For the above reasons, the petitions are allowed.
Respondents are directed to extend the benefit of Old Pension
Scheme to each of these petitioners.”
5. The learned Counsel for the petitioner drew my attention to the
Special Leave to Appeal (C) No(s).15312-15321 of 2021 of the Hon'ble
Supreme Court of India, which was preferred as against the order of the
Hon'ble High Court of New Delhi in the aforesaid matter, which was also later
dismissed on 03.01.2022. Another order passed by this Court in a batch of writ
petitions in W.P.Nos.8584 of 2021 etc., dated 10.02.2023 following the verdict
of the Hon'ble High Court of New Delhi in the aforesaid matter is also placed
before me, wherein this Court has passed favourable order. The relevant portion
of which is extracted as follows:
“15. The language in G.O.No.259, dated 06.08.2003 is quite
clear that the old Pensions Scheme will not apply to the
Government servants appointed on or after 01.04.2003. The
appointment is a continuous process starting from the date of
issuance of the notification and ending with issuing the
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W.P.(MD).No.16030 of 2023
appointment orders. Whenever a beneficial Pension Scheme is
applied, particularly to the employees, a wider interpretation must
be given so as to benefit a large section of the employees. The
Court should not adopt a strict interpretation and thereby deprive
an employee of a beneficial Pension Scheme.
16. In this case, the process of selection started with the
issuance of Notification dated 25.05.2002, which is nearly 11
months before the new Pension Scheme was brought into force
through G.O.No.259, dated 06.08.2003. This Government Order
fixed the cut-off date as 01.04.2003. If the selection process of the
petitioners had been competed with the very same speed with
which it was done for the women Constables, the petitioners would
have had the benefit of the old Pension Scheme. However, there
was a delay in completing the selection process and it is nobody's
case that the delay is attributable to the petitioners. Hence, even
though the appointment order was issued to the petitioners during
November 2003, that will not in any way deprive the petitioners
the benefit of the old Pension Scheme since the process of
selection had commenced through Notification, dated 25.05.2002.
This Court is in complete agreement with the judgment of the
Delhi High Court that has been extracted supra. Those judgments
were also confirmed by the Apex Court. The reasoning that has
been given in the above judgments perfectly falls in line with
regard to interpreting a beneficial Scheme. In view of the same,
this Court comes to the conclusion that the petitioners cannot be
deprived of the benefit of the old Pension Scheme.”
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W.P.(MD).No.16030 of 2023
6. Per contra, the learned Additional Advocate General, assisted by the
learned Special Government Pleader for the respondents had filed counter and
he also vehemently submitted that the petitioner is not entitled to seek the
benefit of Old Pension Scheme by claiming that the selection process
commenced as early as during the period between 2000 and 2001. But the date
of his appointment on 27.02.2004 has to be taken into consideration for the
purpose of deciding as to which Pension Scheme he is entitled to. According to
the relevant pension rules, only the date of appointment has to be consider for
extending the benefit of Pension Scheme and as a result of which, the petitioner
would be covered only under the New Contributory Pension Scheme and
benefit of Old Pension Scheme cannot be extended in favour of the petitioner
and on that basis, he pressed for dismissal of the said writ petition. He also
submitted that very soon a writ appeal will be filed as against the order passed
by this Court in a batch of writ petitions in W.P.Nos.8584 of 2021 etc.
7. This Court is fully in consonance with the order passed by the Hon'ble
High Court of New Delhi in a batch of similar writ petitions in the case of
W.P(C)Nos.8208 of 2020 etc., dated 15.01.2021 and in a similar case by this
Court in a batch of writ petitions in W.P.Nos.8584 of 2021 etc., dated
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W.P.(MD).No.16030 of 2023
10.02.2023. In this case, the process of selection started with the issuance of
notification during the year 2000-2001. The New Pension Scheme was brought
into force through G.O(Ms)No.259 of the Finance (Pension) Department on
06.08.2003. The cut-off date which was fixed by the aforesaid G.O is
01.04.2003. If the selection process of the petitioner has been completed
swiftly, the petitioner would have had the benefit of Old Pension Scheme.
However, the delay in completion of the selection process cannot be attributed
to the petitioner. Even though the appointment order was issued after a period
of atleast 3 ½ years on 27.02.2004 that will not in anyway deprive the petitioner
with the benefit of the Old Pension Scheme, since the process of selection had
commenced by the notification as early as in the year 2000 itself. Hence, this
Court concludes that the petitioner cannot be deprived of the benefit of Old
Pension Scheme.
8. Accordingly, this writ petition stands allowed. There shall be no order
as to costs.
18.08.2023
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W.P.(MD).No.16030 of 2023
NCC : Yes / No
Index : Yes / No
Internet : Yes
BTR
To
1.The Secretary to Government,
The Government of Tamil Nadu,
Finance (Pension) Department,
Fort St. George,
Chennai-9.
2.The Secretary to Government,
Home (Police-III) Department,
Fort St. George,
Chennai-9.
3.The Director General of Police,
Mylapore, Chennai.
4.The Chairman,
Tamil Nadu Uniformed Service Recruitment Board,
Chennai.
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.16030 of 2023
L.VICTORIA GOWRI, J.
BTR
W.P.(MD).No.16030 of 2023
18.08.2023
https://www.mhc.tn.gov.in/judis
