Madras High Court
V.K.Kavitha vs The Secretary To The Government on 16 July, 2024
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
WP.No.31684 of 2023
WP.No.31684 of 2023
G.K.ILANTHIRAIYAN, J.
At the instance of the learned Special Government Pleader appearing
for respondents 1 to 6, today this matter has been posted under the caption “for
being mentioned”.
2. Heard, the learned Special Government Pleader appearing for
respondents 1 to 6.
3. On hearing the submissions of the learned Special Government
Pleader appearing for respondents 1 to 6, it is ordered that the sixth paragraph
of the order passed in WP.No.31684 of 2023 dated 16.07.2024 shall read as
follows:
“6. The above judgment is squarely applicable to the case on hand
and the impugned order passed by the third respondent cannot be sustained
and the same is liable to be quashed. Further, in the seventh respondent
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WP.No.31684 of 2023
school, two vacancies arose for the post of Secondary Grade Teacher from
31.05.1997 and 01.07.1999 due to retirement of an incumbent Neela,
Secondary Grade Teacher and due to promotion of an incumbent Karpagam
as Headmistress. Immediately the seventh respondent school sought for
permission to fill up the said posts. Admittedly both the posts are sanctioned
one. On receipt of the said request, the Assistant Elementary Education
Officer recommended for granting permission to fill up those vacancies by
communication dated 21.01.2003 and on receipt of the same, the District
Elementary Education Officer, Thanjavur District granted permission to fill
up those vacancies. Immediately the petitioner was appointed as Secondary
Grade Teacher on 29.04.2003. Thus it is clear that the vacancy arose even in
the years 1997 and 1999 to the post of Secondary Grade Teacher. Though the
seventh respondent School sought for permission to fill up those vacancies,
permission was accorded only on 31.03.2003, that too after the
recommendation by the Assistant Elementary Education Officer dated
21.01.2003. Both were much prior to giving effect to GO.Ms.No.259 Finance
(Pension) Department dated 06.08.2003. As such, the impugned order passed
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WP.No.31684 of 2023
by the third respondent in Na.Ka.No.9499/Oo/2023 dated 22.08.2023 and
consequential order issued by the sixth respondent in
Na.Ka.No.1327/A1/2023 dated 15.09.2023, are hereby quashed. Respondents
4 to 6 are directed to continue the petitioner under ASTPF No.339031 in the
old pension scheme.
4. Accordingly, the Registry is directed to issue a fresh order copy in
WP.No.31684 of 2023 dated 16.07.2024 after making necessary corrections.
19.07.2024
lOk
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WP.No.31684 of 2023
G.K.ILANTHIRAIYAN, J.
lOk
WP.No.31684 of 2023
19.07.2024
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WP.No.31684 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.07.2024
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P.No.31684 of 2023
and W.M.P.No.31313 of 2023
V.K.Kavitha
...Petitioner
-Vs -
1. The Secretary to the Government,
School Education Department,
Fort St. George,
Chennai – 600 009.
2. The Commissioner of School Education,
College Road, Nungambakkam,
Chennai – 600 006.
3. The Commissioner,
Government Information Data Center,
5th Floor, Perasiriyar Anbazhagan Maaligai,
571, Anna Salai,
Nanadanam, Chennai – 600 035.
4. The Director of Elementary Education,
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WP.No.31684 of 2023
College Road, Nungambakkam,
Chennai – 600 006.
5. The District Educational Officer (Primary)
Nagapattinam,
Nagapattinam District.
6. The Block Educational Officer,
Vedaranyam,
Vedaranuyam Taluk,
Nagapattinam District.
7. The Secretary,
Sundaram Aided Primary School,
Kodiyakadu,
Vedaranyam Taluk,
Nagapattinam District. ...
Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus, calling for the records
relating to the proceedings of the third respondent in Na.Ka.No.9499/Oo/2023
dated 22.08.2023 and consequential order issued by the sixth respondent in
Na.Ka.No.1327/A1/2023 dated 15.09.2023 and quash the same and
consequently direct the respondents to retain the petitioner in the old pension
scheme in ASTPF No.339031.
For Petitioner : Mr.V.Kasinatha Bharathi
For Respondents
For R1 to R6 : Mr.S.Mythreye Chandru
Special Government Pleader
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WP.No.31684 of 2023
For R7 : Mr.C.Prabakaran
ORDER
This writ petition has been filed challenging the proceedings of the third respondent dated 22.08.2023, thereby rejected the case of the petitioner under old pension scheme.
2. The petitioner was selected and appointed as secondary grade teacher in the seventh respondent school on 29.04.2003. At the time of her appointment, old pension scheme was implemented for all the government employees including the teachers. Therefore, the petitioner was allotted with ASTPF number as 339031 on 08.03.2005. While being so, by the proceeding dated 15.09.2023, the ASTPF number was canceled based on the proceeding dated 22.08.2023 on the file of the third respondent on the ground that the appointments made to the government employees on or after 01.04.2003 were not entitled for the old pension scheme and they were only entitled for contributory pension scheme and directed to cancel the ASTPF number allotted to the petitioner. Aggrieved by the same, the petitioner filed the present writ petition.
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3. The sixth respondent filed counter and the learned Special Government Pleader appearing for the respondents submitted that the petitioner was appointed on 29.04.2003 in the seventh respondent school, which is aided school. Further the petitioner was wrongly allotted Teachers Provident Fund Account and subscription was also deducted from her salary. The government issued order in G.O.Ms.No.259 Finance (Pension) Department dated 06.08.2003, thereby introduced new Contributory Pension Scheme with effect from 01.04.2003. Therefore, based on the said government order, the petitioner's Teacher Provident Fund Account was canceled and she is included under the Contributory Pension Scheme.
4. Heard the learned counsel appearing on either side and perused the materials placed before this Court.
5. Admittedly the petitioner was appointed prior to the government order in G.O.Ms.No.259, Finance (Pension) Department, dated 06.08.2003, thereby canceled the old pension scheme and implemented the 8/4 https://www.mhc.tn.gov.in/judis WP.No.31684 of 2023 contributory pension scheme. Further it was issued as retrospective effect from 01.04.2003. This issue already dealt with by this Court in the case of B.Vallipavai Vs. The State of Tamilnadu and ors., in W.P.No.8055 of 2015 and this Court by an order dated 11.07.2023 held as follows:-
“10. The process of appointment was started from the date of vacancy and ended with the issuance of appointment orders. GO.Ms.No.259 (Finance) Pension dated 06.08.2003, which brought in a New Pension Scheme with retrospective operation. Because of the retrospective operation of the New Pension Scheme, no employer and employee would have forethought that appointments made after 01.04.2003 would not be eligible for the Old Pension Scheme. In fact the petitioner had been enrolled for Teacher Provident Fund and she was given TPF No.339415. Therefore, her request was accepted and she had been enrolled under the old pension scheme.
11. That apart, the learned counsel for the petitioner produced office memorandum issued by the Government of India on 03.03.2023, considering the representation submitted from Government servants appointed on or after 01.10.2004 requesting for extending the benefit of the pension scheme under Central Civil Services (Pension) Rules 9/4 https://www.mhc.tn.gov.in/judis WP.No.31684 of 2023 1972 (now 2021) on the ground that their appointment was made against the post / vacancies advertised/notified for recruitment prior to notification for National Pension System referring to court judgments on various Hon'ble High Courts and Hon'ble Central Administrative Tribunals decided that in all cases where the Central Government civil employee has been appointed against a post or vacancy which was advertised / notified for recruitment / appointment prior to the date of notification for national pension scheme i.e. 22.12.2003 and is covered under the National Pension System on joining service on or after 01.01.2004, may be given a one-time option to be covered under the CCS (Pension) Rules, 1972 (now 2021). The said option may be exercised by the Government servants latest by 31.08.2023. In fact the Government of India also called for list of pending cases of employees seeking convertion from contributory pension scheme to old pension scheme by the letter dated 19.02.2023, in which following details were called for:
(i) The details of employees in your department in Secretariat and under your control viz., Heads of Department, Public Sector Undertakings, Statutory Boards and Government Societies for whom orders have been issued for conversion from Contributory Pension Scheme to Old Pension Scheme with authority (G.O.No. and Date along with a copy along with case 10/4 https://www.mhc.tn.gov.in/judis WP.No.31684 of 2023 history from 2003 to till date.
(ii) The details of employees seeking Old Pension Scheme from Contributory Pension Scheme either under the ambit of Government Orders / Clarifications / Court Orders and pending court cases / pending cases with specific case history may be forwarded for consolidation and taking a final decision in the matter after due examination.
12. Therefore, the retrospective amendment / change affecting the vested or accrued rights of employees, adversely affecting their pension, was declared to be invalid as held by the Hon'ble Supreme Court of India in the case of Chairman, Railway Board and Ors Vs. C.R.Rangadhamaiah and Ors. reported in 1997 (6) SCC 623.”
6. The above judgment is squarely applicable to the case on hand and the impugned order passed by the third respondent cannot be sustained and liable to be dismissed. Accordingly, the impugned order passed by the third respondent in Na.Ka.No.9499/Oo/2023 dated 22.08.2023 and consequential order issued by the sixth respondent in Na.Ka.No.1327/A1/2023 dated 15.09.2023, are hereby quashed. The respondents 4 to 6 are directed to continue the petitioner under ASTPF No.339031 in the old pension scheme.
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7. With the above directions, the Writ Petition stands allowed.
Consequently, connected miscellaneous petition is closed. There shall be no orders as to costs.
16.07.2024 Index : Yes/No Speaking/Non Speaking order Neutral Citation : Yes/No rts 12/4 https://www.mhc.tn.gov.in/judis WP.No.31684 of 2023 G.K.ILANTHIRAIYAN. J, rts To
1. The Secretary to the Government, School Education Department, Fort St. George, Chennai – 600 009.
2. The Commissioner of School Education, College Road, Nungambakkam, Chennai – 600 006.
3. The Commissioner, Government Information Data Center, 5th Floor, Perasiriyar Anbazhagan Maaligai, 571, Anna Salai, Nanadanam, Chennai – 600 035.
4. The Director of Elementary Education, College Road, Nungambakkam, Chennai – 600 006.
5. The District Educational Officer (Primary) Nagapattinam, Nagapattinam District.
6. The Block Educational Officer, Vedaranyam, Vedaranuyam Taluk, Nagapattinam District.
7. The Secretary, Sundaram Aided Primary School, Kodiyakadu, Vedaranyam Taluk, Nagapattinam District.
W.P.No.31684 of 2023 and W.M.P.No.31313 of 2023 13/4https://www.mhc.tn.gov.in/judis WP.No.31684 of 2023 16.07.2024 14/4 https://www.mhc.tn.gov.in/judis