Document Fragment View

Matching Fragments

(ii) Admittedly, para No.2 of the aforesaid G.O. Ms.No.259 dated 06.08.2003 is the basis for introducing the amendment to Rule 2 and it is abundantly clear that the amendment has been brought only to exclude the employees, who are covered under the new Contributory Pension Scheme from the old Pension Scheme. The new Contributory Pension Scheme is admittedly introduced only to the newly recruited employees on or after 01.04.2003. By no stretch of imagination, can an employee who had put in several years of service prior to 01.04.2003 under any nomenclature be it temporary or casual could not be termed as a newly recruited employee. The Government themselves with all responsibility have made it clear that the new Contributory Pension Scheme will be made applicable only to those employees who are newly recruited employees on or after 01.04.2003 and the words employed therein viz., 'newly recruited' would exclude the writ petitioners from the applicability of the new Pension Scheme, rather, they are only entitled to get the benefits under the Old Pension Scheme by virtue http://www.judis.nic.in of their employment prior to 01.04.2003. W.A.No.158 of 2016 etc., batch

(iii) The learned counsel for the petitioner submitted that the Government was very cautious to use the words newly recruited meaning thereby the new pension scheme introduced by the Government will be made only applicable to fresh recruits i.e those who are newly appointed and/or recruited after 01.04.2003 and it has got nothing to do with the writ petitioners who were recruited earlier and have rendered more than a decade of service prior to their regularisation after 01.04.2003. Therefore, the new contributory pension scheme is not applicable to the writ petitioners who were already working in various departments of the Government and whose service came to be regularised after 01.04.2003. When the Contributory Pension Scheme is not applicable to the writ petitioners, naturally, they are entitled to the benefits conferred under Rule 11 of The Tamil Nadu Pension Scheme. Even otherwise, the cut off date for pensionary benefits namely 01.04.2003 was issued by the Government vide G.O. Ms. No.41, Finance (Pension) Department dated 09.02.2010. The cut off date was not even referred in Rule 2 of The Tamil Nadu Pension Rules which deals with applicability of the Tamil Nadu Pension Rules. Rule 2 clearly indicate that the Pension Rules are applicable to all Government servants appointed to services and posts in a pensionable establishments, whether temporary or permanent. In the absence of any cut off date having been indicated in Rule 2, the writ petitioners cannot be brought within the fold of the Contributory Pension Scheme, rather, they are entitled for payment of pension under the Old Scheme by virtue of their appointment in temporary service long back.

(v) The learned counsel would proceed to contend that the respondents - Government thought it fit to bring an amendment to Rule (4) but no amendment was made to the existing provisions contained in Rule 11 (1), 11 (2) and 11 (3) to exclude the applicability of the Pension Rules to those employees whose services were regularised after 01.04.2003. When there is no exclusion to the class of employees like the writ petitioners under Rule 11 (1), (2) and (3), it is clear that there is no bar or prohibition that would disentitle the writ petitioners to count half of the services rendered by them on daily wage basis, along with their regular service http://www.judis.nic.in W.A.No.158 of 2016 etc., batch in which they were placed after 01.04.2003. A liberal interpretation would be that any new appointment or recruitment will have to be construed as a fresh selection who will get attracted to the new Contributory Pension Scheme and those who were appointed and/or recruitted earlier and who were working continuously for years together cannot be brought within the scope and ambit of the Contributory Pension Scheme. When none of the amendment brought to Rule 2 or Rule 1 are against the writ petitioners, it will not disentitle the writ petitioners to count half of the service rendered by them on daily wage basis along with the regular service rendered by them and consequently, they need not challenge the Rule. The Government themselves have not excluded the applicability of the Rules to the writ petitioners who were rendering service prior to 01.04.2003 and regularised and/or absorbed them in regular service after 01.04.2003. The learned counsel therefore prayed this Court for answering the reference in favour of the employees/ writ petitioners.

16. (i) Mr. R. Saseetharan, learned counsel appearing for the writ petitioners, who are respondents in W.A. No. 610 of 2016 etc., would contend that the Government enacted Tamil Nadu Pension Rules, 1978 with the object of disbursing pensionary benefits to its employees after their retirement and in the case of his or http://www.judis.nic.in W.A.No.158 of 2016 etc., batch her death to their surviving spouse. The object of enacting the Rules is to ensure that a employee, employed with the Government in his young days, is provided with a social security in the form of pensionary benefits. For the purpose of disbursement of pension, a minimum qualifying service is prescribed under Rule 43 (2), as per which, a Government servant, who rendered not less than 10 years of service, is entitled for monthly pension from the date of retirement as provided under the Table appended to the said Rule. This, according to the learned counsel for the petitioner is termed as Non Contributory Pension Scheme as the employees need not contribute anything to get monthly pension after his or her retirement. However, the Government introduced a new pension scheme under G.O. Ms. No.259, Finance (Pension) Department dated 06.08.2003 which is called Contributory Pension Scheme. As per this new scheme, defined contributions will be made by the employee as well as the employer/Government. As per G.O. Ms. No.430, Finance (Pension) Department dated 06.08.2004, it is mandatory for all the new employees who are recruited on or after 01.04.2003 to become members of the scheme and to contribute 10% of basic pay and dearness allowance from his or her salary to the Contributory Pension Scheme. As per clause (ii) of G.O. Ms. No.430, Finance (Pension) Department dated 06.08.2004, a matching contribution will be made by the State Government for each employee, who contributes to the scheme. The preamble portion of the new contributory pension scheme clearly indicates that this will be made applicable to those employees who are 'newly recruited' after 01.04.2003.