Madras High Court: In a writ petition filed challenging the order passed by the Finance Department, thereby converting employees from old pension scheme to contributory pension scheme, G.K. Ilanthiraiyan, J. has opined that the petitioner cannot be deprived of the benefit of old pension scheme. Therefore, the impugned orders are not applicable to the petitioner. Further, it directed the Finance Department and Director of School Education, to continue the petitioner under the Teacher’s Provident Fund.
The petitioner appeared for an interview, and, on her merit and ability, the school selected her and appointed her as B.T. Assistant. She joined the service in 2003. Her appointment was approved by the District Elementary Educational Officer by the proceedings dated 31-07-2004. But it was with effect from 17-04-2003. She has been enrolled for Teachers. While being so, the District Elementary Educational Officer by the proceedings had informed the petitioner that her appointment was made after 01-04-2003 and as such, as per the Government Order dated 06-08-2003, she is not eligible for TPF scheme and was directed to get new number under the Contributory Pension Scheme for deductions. Therefore, the petitioner made representation requesting to continue her in the old pension scheme.
The Court noted that the contributory pension scheme was brought into force from 01-01-2004, whereas vacancy arose for the post of B.T. Assistant as early as 09-11-2002. After obtaining permission from the Chief Education Officer to fill the vacancy, the school requested the District Employment Exchange for a list of suitable candidates. After furnishing the list of candidates, the petitioner was called for an interview. Therefore, the option to continue the old pension scheme must be extended to all those persons who participated in the selection prior to the crucial date, but however got an appointment letter after crucial date. The Government Order dated 06-08-2003 is with effect from 01-04-2003, thus the old pension scheme will not apply to the Government servants who are appointed on or after 01-04-2003.
The Court further said that the process of appointment was started from the date of vacancy and ended with the issuance of appointment orders. The Government Order dated 06-08-2003 brought in a new pension scheme with retrospective operation. Because of the retrospective operation of the new pension scheme, no employer or 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 number. Therefore, her request was accepted, and she had been enrolled under the old pension scheme.
The Court noted that the Government of India also called for list of pending cases of employees seeking conversion from contributory pension scheme to old pension scheme by the letter dated 19-02-2023.
After placing reliance on Railway Board v. C.R. Rangadhamaiah, (1997) 6 SCC 623, wherein it was held that the retrospective amendment / change affecting the vested or accrued rights of employees, adversely affecting their pension, is invalid. The Court opined that the petitioner cannot be deprived of the benefit of an old pension scheme. Therefore, the impugned orders are not applicable to the petitioner. Further, it directed the Finance Department and Director of School Education, to continue the petitioner under the Teacher’s Provident Fund (Family Pension Scheme).
[B Vallipavai v. The State of Tamil Nadu, 2023 SCC OnLine Mad 5035, Order dated 11-07-2023]
