Is the date of the appointment order, and not an earlier instruction, reckoned for pensionary benefits?

(Order of the Court was made by S.M.Subramaniam, J.) The writ on hand has been instituted seeking a direction to the fourth respondent to consider the re-submitted proposal sent by the third respondent on 11.12.2024 to include the petitioner’s name in the Old Pension Scheme under the Tamil Nadu Pension Rules 1978 and with all consequential monetary benefits.

The facts in brief are that the petitioner was appointed as Typist on 24.11.1997 on temporary basis under Rule 16(a)(i) of the ‘Tamil Nadu Judicial Ministerial Service Rules’ (hereinafter referred to as the ‘Rules’). Rule 16(a)(i) of the Rules stipulates that where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of the service and there would be undue delay in making such appointment in accordance with these rules, the appointing authority may temporarily appoint a person, otherwise than in accordance with these rules.

Rule 16(e)(i) of the Rules would indicate that a person appointed under sub-rule (a), (b) or (d) to a post borne on the cadre of the service shall not be regarded as a probationer or be entitled by reason only of such appointment to any preferential claim to future appointment, the services of such a person in the post shall be liable to be terminated by the appointing authority at any time without notice and without any reason being assigned.

In the present case, the temporary appointees were ousted from service periodically and re-engaged as temporary employees. Since large number of temporary appointments were made in Judicial Department, a decision was taken to regularise their services in the sanctioned post in the time scale of pay. Accordingly, the Registrar General, High Court of Madras, vide Proceedings in R.O.C.No.1606-A/96-G1/C3 dated 13.03.2003 issued instructions to the appointing authorities as follows:

The Registrar General issued instructions to the appointing authorities. Such instructions cannot be construed as appointment orders. Appointment orders are to be issued by the appointing authorities and in the present case, the order of appointment was issued to the petitioner on 10.04.2003. Therefore, the date of appointment into regular establishment is to be reckoned for calculating the qualifying services for pension and other benefits. In the present case, relying on the instructions given by the Registrar General that the temporary appointees are eligible for pensionary benefits, which was reproduced in the appointment order, these temporary employees appointed after the cut off date viz., 01.04.2003 claimed the benefits under the Old Pension Scheme i.e., Tamil Nadu Pension Rules, 1978.

The learned counsel for the petitioner Mr.P.Ganesan would submit that the instructions given by the Registrar General would indicate that the temporary services rendered by these employees in the post of Typist will not be considered for the purpose of service benefits viz., pay protection, increment, seniority, promotion (except for pensionary benefits). The said clause has been incorporated in the appointment order dated 10.04.2003 issued by the appointing authority. Since exemption was granted to the pensionary benefits, the writ petitioner is eligible to secure pension under the provisions of the Tamil Nadu Pension Rules, 1978 (Old Pension Scheme).

The learned counsel for the respondents 1 to 3 would submit that though they have sent proposal to the Accountant General of Tamil Nadu, it was rejected on the ground that regular appointment and regularisation of services were made to the petitioner with effect from 10.04.2003 i.e., after the cut off date of 01.04.2003. Therefore, these employees are not eligible to avail the benefits under the Tamil Nadu Pension Rules, 1978, but will be eligible to get the benefits under the New Pension Scheme i.e., Contributory Pension Scheme.

The learned counsel appearing for the Accountant General of Tamil Nadu would submit that merely stating so in the instructions issued by the Registrar General would not have any binding effect. The Accountant General of Tamil Nadu is empowered to verify the correctness of the proposal submitted for sanction of pension to the employees. The Accountant General of Tamil Nadu had considered the eligibility criteria for grant of pension to the employees. In the present case, admittedly, the petitioner was appointed on 10.04.2003 and her services were regularised with effect from the said date. That being so, the petitioner would be eligible to get the benefits under the New Pension Scheme i.e., Contributory Pension Scheme. Mere opening of a GPF Account by an employer erroneously, would not confer any right to an employee to seek benefits under the Old Pension Scheme.

This Court has considered the rival submissions made between the parties to the lis.

Question arises whether the instructions given by the Registrar General, High Court, to appoint these temporary employees in sanctioned posts, would be taken as date of appointment. There is no doubt that mere instructions issued to an appointing authority would not confer any right on the candidates / employees to claim appointment. The issuance of appointment order by the appointing authority alone will confer right to the candidates. In other words, the date of appointment is to be taken into consideration for extending the service benefits including the pensionary benefits.

In the present case, as on the date of issuance of instructions by the Registrar General on 13.03.2003, the Old Pension Rules was in force. Therefore, the Registrar General has stated that on appointment of these temporary employees, they cannot claim all other service benefits, including pay protection, increment, seniority, promotion except pensionary benefits. Further, it is to be noted that there was no two Pension Schemes at that point of time. That exactly is the reason why the Registrar General has stated “except for pensionary benefits”.

Consequent to the introduction of the New Pension Scheme i.e., Contributory Pension Scheme, the Tamil Nadu Pension Rules, 1978 was amended. Rule (1)(2) proviso clause of the Tamil Nadu Pension Rules, 1978 stipulates that “provided that these rules shall not apply to Government Servants appointed on or after the 1 st April 2003, to services and posts in connection with the affairs of the State which are borne on pensionable establishments, whether temporary or permanent.”

Question of counting temporary service under Rule 11(4) of the Tamil Nadu Pension Rules, 1978, would arise only where the appointments were made before the cut-off date, i.e., 01.04.2003.

In the present case, admittedly the order of appointment was issued to the writ petitioner by the appointing authority on 10.04.2003 i.e., after the cut-off date and therefore, the Tamil Nadu Pension Rules, 1978 will not apply to the case of the writ petitioner. However, the petitioner is entitled to get the benefits under the New Pension scheme (Contributory Pension Scheme).

Wrong quoting of certain benefits in an order passed by an authority would not confer any right, if such quoting is in violation of service rules applicable to the post. In the present case, as on the date of issuance of instructions by the Registrar General, the New Pension Scheme had not came into force. But on the date of appointment of the writ petitioner, the New Pension Scheme (Contributory Pension Scheme) came into force and necessary amendment was made to the Tamil Nadu Pension Rules, 1978. Accordingly, persons appointed after 01.04.2003 are eligible to avail the benefits under the New Pension scheme i.e., Contributory Pension Scheme. This being the legal position, any erroneous order or erroneous decision taken in an individual case would not supersede the provisions of law in the context of Pension Scheme which are all unambiguous.

In view of the facts and circumstances, it is made clear that the petitioner is entitled for the benefits under the New Pension Scheme i.e., Contributory Pension Scheme. If the benefits due to the petitioner under the New Pension Scheme have not been settled, respondents 1 to 3 are directed to complete the process of settling such benefits by sending necessary proposals, enabling the fourth respondent, namely, the Accountant General of Tamil Nadu, to grant necessary sanction, within a period of twelve weeks from the date of receipt of a copy of this order. However, it is made clear that the writ petitioner is not entitled to the benefits under the Old Pension Scheme, i.e., the Tamil Nadu Pension Rules, 1978.

With these observations, the writ petition stands disposed of. No costs. [S.M.S., J.] [K.G.R., J.] 09.09.2026