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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 82168217 OF 2018
(Arising out of SLP (C) No(s). 2432824329/2015)
K. ANBAZHAGAN & ANR. … APPELLANT(S)
VERSUS
THE REGISTRAR GENERAL
HIGH COURT OF MADRAS & ANR. … RESPONDENT(S)
WITH
CIVIL APPEAL NOS. 82188221 OF 2018
(Arising out of SLP (C) No(s). 2692926932/2015)
R. RADHA & ANR. … APPELLANT(S)
VERSUS
STATE OF TAMIL NADU & ORS. … RESPONDENT(S)
AND
CIVIL APPEAL NO.8222 OF 2018
(Arising out of SLP (C) No. 5467/2016)
P.G. RAJAGOPAL … APPELLANT(S)
VERSUS
THE REGISTRAR GENERAL
HIGH COURT AT MADRAS & ANR. … RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
Leave granted.
2. These three appeals have been filed against the common
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judgment of Madras High Court dated 01.04.2015 by which
judgment, writ petitions filed by the appellants have been
dismissed. The questions of facts and law raised in the
appeals being similar all the appeals have been heard together
and are being decided by this common judgment.
3. There are five appellants in these three appeals, who
were appointed as Fast Track Judges from the Bar in the State
of Tamil Nadu, consequent to creation of Fast Track Courts
under the Eleventh Finance Commission Report of the Government
of India. This Court vide its judgment dated 06.05.2002 in
Brij Mohan Lal Vs. Union of India & Ors., (2002) 5 SCC 1 had
issued various directions with regard to appointment and other
matters pertaining to Fast Track Courts under Eleventh Finance
Commission for setting up of 1734 Fast Track Courts in various
States of the country.
4. After creation of Fast Track Courts under Eleventh
Finance Commission, the Madras High Court vide its order dated
21.11.2001 issued an order pertaining terms and conditions for
the Additional District Judges for the Fast Track Courts and
the instructions thereon. The High Court vide its
Notification dated 19.12.2001 invited applications from the
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practicing Advocates for the post of Additional District
Judges (Fast Track Court) on ad hoc basis for a period of five
years. The terms of the notification provided that applicants
should have completed 45 years of age and shall not have
reached 55 years as on 01.01.2002.
5. The High Court vide its order dated 14.02.2002 appointed
the appellants, who all were advocates as Additional District
and Sessions Judge (Fast Track Courts) on Ad hoc Basis. The
initial ad hoc appointment of all the appellants was for five
years, which was extended. All the appellants were
subsequently relieved from their assignments. In the year
2011/2012, appellants also filed different writ petitions for
their absorption as Additional District and Sessions Judge in
the regular cadre, which writ petitions were dismissed by the
High Court. After the orders rejecting the claim of the
appellants for absorption in regular cadre of Additional
District Judges, the appellants filed representations praying
for grant of pension and other retiral benefits, which were
rejected by the High Court. Second round of litigation was
initiated by the appellants claiming retiral benefits
including pension, gratuity, and leave encashment, which has
been dismissed by the High Court by its common judgment dated
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01.04.2015. Apart from above common facts regarding the
appellants, few individual facts pertaining to their period of
working and some other facts need to be separately noted in
each appeal, which are as follows:
Civil Appeal Nos. ___________ of 2018
(arising out of SLP (C) Nos. 2432824329 of 2015)
6. There are two appellants namely, (i) K. Anbazhagan and
(ii) G. Savithri in this appeal. Both were appointed as Ad
hoc Fast Track Judges by the High Court order dated
14.02.2002. The appellant No.1 joined on 23.02.2002 and
appellant No.2 joined on 24.02.2002. The appellant No.1,
before joining as Fast Track Judge, was working as Additional
Public Prosecutor since 1996. The appellant No.1 resigned from
his post of Additional Public Prosecutor for joining as Fast
Track Judge. The appointment of appellant No.1 was extended
upto 31.05.2011, on which date he was attaining 60 years of
age. The appellant No.1 was relieved from his assignment
w.e.f. 31.05.2011 after putting in total period of 9 years, 5
months and 5 days to his credit. The appellant No.2 was
relieved from services by the Registrar General of the High
Court by order dated 25.04.2012. Appellant No.2 thus had put
in service of more than 10 years as Additional District Judge
(Fast Track Court). The appellant No.1 having submitted
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representation for grant of pension and other retiral
benefits, an order dated 11.10.2012 was issued by the
Registrar General of High Court of Madras by which the claim
of appellant No.1 for grant of pension and other retiral
benefits has been rejected. The appellant No.2 had also made
a representation for grant of pension and other retiral
benefits, which too was rejected. Writ Petition No. 5187 of
2014 was filed by appellant No.2 whereas Writ Petition No.
23532 of 2014 was filed by the appellant No.2, which has been
dismissed by the common judgment dated 01.04.2015.
Civil Appeal Nos. ___________ of 2018
(arising out of SLP (C) Nos. 2692926932 of 2015)
7. This appeal has been filed by two appellants namely R.
Radha and A.S. Hassina. Both the appellants were appointed by
the same appointment order dated 14.02.2002. Both the
appellants joined on 23.02.2002. Both the appellants were
relieved by order dated 25.04.2012 of the Registrar General.
After unsuccessfully challenging the relieving order dated
25.04.2012 in the High Court, they also submitted
representation dated 14.08.2014 claiming pension and other
retiral benefits. The representations of the appellants were
rejected on 06.11.2014. The appellant No.1 filed Writ Petition
No. 2756 of 2015 whereas appellant No.2 filed a Writ Petition
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No. 2755 of 2015. Both the writ petitions have been dismissed
on 01.04.2015.
Civil Appeal No. ___________ of 2018
(arising out of SLP (C) No. 5467 of 2016)
8. The appellant was also appointed by the same order dated
14.02.2002, in pursuance of which, he joined on 24.02.2002.
On 28.10.2010, the appellant was relieved of his position as
Additional District Judge (Fast Track Court) w.e.f. 31.10.2010
on which date he was attaining 60 years of age. The
petitioner's claim for pension was rejected on 13.07.2011 by
the High Court. Writ Petition No. 4276 of 2013 was filed by
the appellant praying for quashing the order dated 13.07.2011
and praying for direction to pay pension and other retiral
benefits, which petition has also been rejected on 01.04.2015.
9. We have heard Shri A. Mariarputham, learned senior
counsel for the appellants and learned counsel appearing for
the High Court as well as the State of Tamil Nadu.
10. Learned senior counsel for the appellants contends that
High Court committed error in rejecting the claim of the
appellants for pension, gratuity and leave encashment on wrong
premise that appellants were contract appointees and they are
not borne on pensionable establishment. He submits that
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appointment of appellants by direct recruitment from Bar was
on adhoc basis, which is clear from the advertisement inviting
applications for filling the post. He submits that appellants
are not contract employees and on that ground denial of
retiral benefits is unsustainable. He further submits that
Fast Track Court Judges were in the same establishment as the
regular Additional District Judges. They being not in a
separate or independent establishment, they were clearly borne
on pensionable establishment. It is further submitted that
ad hoc appointments of Fast Tract Courts were made by both the
sources i.e. by promotion of judges from lower division as
well as from the bar. There cannot be any dispute that cadre
of Additional District Judges is borne on pensionable
establishment, hence there cannot be any differentiation with
regard to establishment in which both ad hoc appointees were
borne. All the appellants have completed qualifying service
of ten years under the Tamil Nadu Pension Rules, 1978
(hereinafter referred to as “1978 Rules”) and were clearly
entitled for pension and gratuity. It is further submitted
that before High Court both the claim of gratuity and leave
encashment were also raised by the appellants but the High
Court did not advert to the claim of gratuity or leave
encashment. The appellant K. Anbazhagan was relieved on
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31.05.2011 after attaining the age of sixty years, hence he
was clearly entitled for superannuation benefits under the
1978 Rules. Learned senior counsel for the appellants further
submits that all the Fast Track Court Judges, who were
appointed from bar were entitled to add additional period to
their service as per Rule 27 as well as in accordance with
judgment of this Court in Govt. of NCT of Delhi and Ors. Vs.
All India Young Lawyers Association (Regd.) and Ors., (2009)
14 SCC 49. It is contended that entitlement for gratuity is
completion of five years of service and none of the appellants
could have been denied the gratuity. It is further submitted
that there was GPF deduction from the salary of all the
appellants, which also proves that they were part of the
pensionable establishment and entitled for payment of pension.
11. With regard to appellant K. Anbazhagan, it is further
submitted that he has earlier worked as Additional Public
Prosecutor, which was not a pensionable post. Rule 11(3) of
1978 Rules, provides that 50% of service in a nonpensionable
post would be added in his service. Thus, all the appellants
have completed ten years of qualifying service.
12. Learned counsel appearing for the High Court supporting
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the judgment and the order contends that the appellants were
appointed on Fast Track Courts on contract basis. Fast Track
Courts cannot be said to have been created in pensionable
establishment hence the writ petition of the appellants have
rightly been dismissed. It is further submitted that
appellant's claim for regularisation on post of Additional
District Judge had been rejected, which was upheld by the High
Court vide its judgment dated 20.07.2012. The appellants
functioned purely on adhoc basis and were not appointed under
the Tamil Nadu State Judicial Service (Cadre and Recruitment)
Rules, 1995 nor were absorbed in any regular vacancy hence
they are not eligible for any retiral benefits, which are
available to those who were appointed by due recruitment
process under the above 1995 Rules. Tenure of the Fast Track
Courts was initially for only five years under the Eleventh
Finance Commission and subsequently extended for another five
years. Government of Tamil Nadu had further extended the
tenure of courts for a period of one year upto 31.03.2012.
Thereafter vide Government Order dated 26.08.2011, Government
of Tamil Nadu had sanctioned retention of 49 Fast Track Courts
in the cadre of District Judge functioning in the State of
Tamil Nadu. The appellants having accepted the purely
temporary nature of the post to which they were appointed,
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they now cannot contend claiming all the benefits available to
those, who have been appointed to a substantive post by a
recruitment process.
13. Learned counsel appearing for the State of Tamil Nadu
while adopting the submissions of the learned counsel for the
High Court has submitted that appellants did not fulfill the
conditions for grant of pension and other retiral benefits
under the 1978 Rules, hence their claim was rightly rejected.
14. We have considered the submissions of the learned
counsel for the parties and have perused the records.
15. Before we proceed to examine the respective contentions
of the parties, it is necessary to notice the relevant
background facts for creation of Fast Track Courts in the
country and manner and nature of appointments made.
16. The Eleventh Finance Commission allocated funds for the
purpose of setting up of 1734 Courts in various States to deal
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with the long pending cases particularly sessions cases.
Consequent to allocation of funds by the Finance Commission,
the State Governments were required to take necessary steps to
establish such courts. Finance Commission had suggested that
States may consider reemployment of retired judges for
limited period for the disposal of pending cases. Fast Track
Courts scheme was challenged in different High Courts
primarily on the ground that there was no constitutional
sanction for employment of retired judges and effective
guidelines have not been issued. This Court considered the
controversy after transferring various writ petitions pending
in the different High Courts under Article 139A of the
Constitution of India. The issues pertaining to Fast Track
Courts were decided by this Court in Brij Mohan Lal Vs. Union
of India and Others, (2002) 5 SCC 1. After noticing the funds
allocated under the Eleventh Finance Commission and other
respective contentions, this Court issued various directions
in Para 10. With regard to recruitment on Fast Track Courts,
directions 1 to 4 were given in Para 10, which are as
follows:
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“10. Keeping in view the laudable objectives with
which the Fast Tract Courts Scheme has been
conceived and introduced, we feel the following
directions, for the present, would be sufficient
to take care of initial teething problems
highlighted by the parties:
Directions by the Court:
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1. The first preference for appointment of judges
of the Fast Track Courts is to be given by adhoc
promotions from amongst eligible judicial
officers. While giving such promotion, the High
Court shall follow the procedures in force in the
matter of promotion to such posts in
Superior/Higher Judicial Services.
2. The second preference in appointments to Fast
Track Courts shall be given to retired judges who
have good service records with no adverse comments
in their ACRs, so far as judicial acumen,
reputation regarding honesty, integrity and
character are concerned. Those who were not given
the benefit of two years extension of the age of
superannuation, shall not be considered for
appointment. It should be ensured that they
satisfy the conditions laid down in Article 233(2)
and 309 of the Constitution. The High Court
concerned shall take a decision with regard to the
minimummaximum age of eligibility to ensure that
they are physically fit for the work in Fast Track
Courts.
3. No Judicial Officer who was dismissed or
removed or compulsorily retired or made to seek
retirement shall be considered for appointment
under the Scheme. Judicial Officers who have
sought voluntary retirement after initiation of
Departmental proceedings/inquiry shall not be
considered for appointment.
4. The third preference shall be given to members
of the Bar for direct appointment in these Courts.
They should be preferably in the age group of
3545 years, so that they could aspire to continue
against the regular posts if the Fast Track Courts
cease to function. The question of their
continuance in service shall be reviewed
periodically by the High Court based on their
performance. They may be absorbed in regular
vacancies, if subsequent recruitment takes place
and their performance in the Fast Track Courts is
found satisfactory. For the initial selection, the
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High Court shall adopt such methods of selection
as are normally followed for selection of members
of the Bar as direct recruits to the
Superior/Higher Judicial Services.
Xxxxxxxxxxxxxxx”
17. One more direction, which needs to be noticed is Direction
No. 16 where this Court directed that persons appointed under
the Scheme will be governed for service benefits by the rules
and regulations, which are applicable to the members of the
judicial services of the State of equivalent status.
Direction No. 16 is as follows:
“16. Persons appointed under the Scheme shall be
governed, for the purpose of leave, reimbursement
of medical expenses. TA/DA and conduct rules and
such other service benefits, by the rules and
regulations which are applicable to the members of
the Judicial Services of the State of equivalent
status.”
18. In Para 12, States were directed to ensure compliance in
following words:
“12. Copies of the judgment be sent by the
Registry of this Court to each High Court and the
State Government concerned for ensuring compliance
with our directions.”
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19. Even before the aforesaid directions were issued on
06.05.2002, different High Courts in the country in pursuance
of Eleventh Finance Commission allocation proceeded to take
steps for setting up of the Fast Track Courts. On the
recommendations received from the High Court of Madras, the
Government of Tamil Nadu granted sanctions of post by two
Government orders, for 30 posts (dated 03.08.2001) and 19
posts (dated 18.12.2001) respectively. In the present
appeals, we are concerned with appointment of the appellants,
which were made on 19 sanctioned posts, hence we need to
notice the Government Order dated 18.12.2001, by which 19 more
Fast Track Courts were sanctioned. Para 3 of the Government
Order dated 18.12.2011 provides for sanction of posts which is
as follows:
“3. The proposals of the High Court has been
examined by the Government and they have decided
to accept them. The Government accordingly direct
that as proposed by the High Court, 19 Fast Track
Courts be constituted in the places mentioned in
the Annexure to this order. The Government also
accord sanction for the creation of the following
posts temporarily for a period of one year from
the date of appointment.
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Sl. No. Designation of the post Scale of pay
1. District Judge (Addl
District Judge cadre)
1500018600
2. Translator 55009000
3. Assistant 40006000
4. Steno Typist 40006000
5. Typist 32004900
6. Office Assistants 25503200
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The Presiding Officers of these courts would be
the pay drawing officers.”
20. After creation of the posts, High Court issued a
Notification dated 19.12.2001 inviting applications from the
practicing advocates for being considered for the post of
Additional District Judge for Fast Track Courts on ad hoc
basis. Notification dated 19.12.2001 reads as under:
"Notification No. 159/2001
Applications are invited from the practicing
Advocates possessing the following qualifications
for being considered for the post Additional
District Judge (Fast Track Court) on Ad hoc basis
for a period of 5 years. The post carries a Scale
of Pay of Rs.1500040018600.
xxxxxxxxxxxxxxxxxxxx”
21. The appellants who were all practicing advocates and
fulfilling the eligibility as required in the notification
submitted the applications. The High Court after calling the
appellants to appear in interview sent a proposal to the
Government recommending 15 names for appointment as Additional
District Judge. The State Government by order dated
14.02.2002 appointed all the appellants. Paragraphs 4 and 5
of the order of the State Government dated 14.02.2002 is as
follows:
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"4. The Government in consultation with the High
Court Madras, hereby appoint the following 15
(Fifteen) Advocates as Additional District and
Sessions Judges (Fast Track Courts) on Ad hoc
Basis subject to the terms and conditions fixed by
the High Court, Madras:
Thiru/Tmt/Selvi
1. K. Anbazhagan
2. G.K. Bharathi
3. Bhagirathi R Angarajan
4. V.B. Chinnappan
5. R. Duraisamy
6. A. Devaki
7. A.S. Hassina
8. V. Meganathan
9. S. Mani
10. P. Pandurangan
11. K. Pandurangan
12. R. Radha
13. P.G. Rajagopal
14. M. Sekar &
15. G. Savithri
5. The above Additional District and Sessions
Judges will draw a pay of Rs.15,000/ in the scale
of Rs.1500040018600 and other usual
allowances.”
22. We may first notice the reasons given by the High Court
for rejecting the claim of pension of the appellants. The High
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Court has mainly given following reasons for rejecting the
claim:
1) The Fast Track Courts created under Eleventh Finance
Commission cannot be said to have been created in a
'pensionable establishment'.
2) Rule 11 of 1978 Rules, which provides for commencement
of qualifying service does not cover appointment on
contractual basis. The appointments of appellants were
appointments on contract basis, hence they are not
covered by Rule 11 of 1978 Rules.
3) Division Bench of High court in its judgment dated
20.07.2012 rendered in Writ Petition No.1370313705 of
2012 treated the appointment of appellants as contractual
appointment.
23. The first issue to be answered is as to whether the
appointments of appellants were appointment on 'pensionable
establishment' or not. The expression 'pensionable
establishment' is not defined under the 1978 Rules. Rule 2 of
1978 Rules which provides for application of Rules is as
follows:
"2. Application: Save as otherwise provided in
these rules, these Rules shall apply to all
Government Servants appointed to Services and posts
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in connection with the affairs of the State which
are borne on pensionable establishments, whether
temporary or permanent, but shall not apply toa)
Persons in causal and daily rated
employment;
b) Persons paid from contingencies;
c) Persons employed on contract except when
the contract provids otherwise;
d) Members of the AllIndia Services;
e) Persons who are entitled to the benefits
under the Factories Act, 1948 and the
Employees Provident Fund Act, 1952 excluding
those who are governed by Statutory Services
Rules and belong to pensionable service."
24. The expression 'pensionable establishment' has been used
in Rule 2. Rule 11 subRule (3) also uses the expression
'nonpensionable establishment'. An indication in chapter 12
of the Rules i.e. Rule 84 is given that service paid for from
a Local Fund does not qualify for pension which indicates that
services paid for from a Local Fund are services in
'nonpensionable establishment'. For the purposes of this
case, we have to only consider as to whether the establishment
where appellants were appointed and working was a 'pensionable
establishment' or 'nonpensionable establishment'.
25. We have noticed above the Government Order dated
18.12.2001 by which the State Government created nineteen Fast
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Track Courts of District Judges(Additional District Judges) in
the pay scale of Rs.1500018600. The appellants in their
appointment Order dated 14.02.2002 were also referred to as
having been appointed as Additional District and Sessions
Judges (Fast Track Courts) on adhoc basis. The appointment
order further provided that the appellants as Additional
District and Sessions Judges will draw a pay in the scale of
Rs.1500040018600 and other usual allowances. The appellants
were appointed in the Judicial establishment of the district
and were part of the Subordinate Courts under the control of
the High Court. Clause 9 of the Government Order dated
18.12.2001 read as follows:
"9. The expenditure involved in the proposal shall
be debited to 2014.00 Administration of Justice
800other ExpenditureII State Plan – JA Eleventh
Finance Commission– Upgradation and Special Problem
Grant setting up of additional courts for disposal
of long pending cases 0.9 Grants in Adl.03. Other
grants for Specific Scheme (D.P.C.No.2014.00 800 JA
0934)”
26. The payment of salary to the appellants were made from
same sources by which other Additional District Judges and
other Judicial Officers of the State were being paid. There is
no indication from any of the material produced before us that
the appellants were appointed on any different establishment
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than the Judicial establishment of the District.
27. We have noticed above that this Court in Brij Mohan Lal
Vs. Union of India and others in paragraph 10 of the judgment
has directed that persons appointed under the Scheme(Fast
Track Courts Scheme) shall be governed, for the purposes of
leave, reimbursement of medical expenses, TA/DA and conduct
rules and such other service benefits, by the rules and
regulations which are applicable to the members of the
judicial services of the State of equivalent status.
28. By direction 10(16), this Court had directed the State
Governments to ensure compliance, hence, the terms and
conditions of service of appellants were same as those other
judicial officers of the State as per Order of this Court.
High Court in its judgment although observed that Fast Track
Courts cannot be said to have been created in 'pensionable
establishment' but said conclusion has been arrived without
considering relevant materials and without giving any cogent
reasons. We thus are of the view that appointment of
appellants was in 'pensionable establishment'.
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29. Now, we come to the second reason given by the High Court
that the appointments of the appellants were contractual
appointments. We have already noticed that the appointments of
the appellants were made against nineteen sanctioned posts of
Additional District Judges by Government Order dated
18.12.2001. The notification which was issued by the High
Court inviting applications from practising Advocates
mentioned that applications are invited from practising
Advocates for being considered for the post of Additional
District Judge (Fast Track Court) on adhoc basis for a period
of five years. It further mentioned that the post carries a
Scale of Pay of Rs.1500040018600. Thus, the notification
inviting applications never mentioned that it is a contractual
appointment. Further, the appointment order issued to the
appellants dated 14.02.2002, in paragraph 3 stated as follows:
"3. Accordingly, the High Court, Madras, has called
for applications from eligible Advocates for
filling up of 15 posts of Additional District
Judges (Fast Track Courts), conducted interview and
sent proposals to Government recommending 15 names
of Advocates for appointment as Additional District
and Sessions Judges(Fast Track Courts) on ad hoc
basis.”
The appointment order thus clearly mentioned that the
appointment is on adhoc basis.
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30. In service jurisprudence, the appointments are made by
employer with different nomenclature/characteristics.
Appointments are made both on permanent or temporary basis
against permanent post or temporary post. The appointment can
also be made on adhoc basis on permanent or temporary post.
There is one common feature of appointments of permanent,
temporary or adhoc appointment i.e. those appointments are
made against the post whether permanent or temporary. On the
contrary, for contractual appointment, there is no requirement
of existence of any post. A contractual appointment is not
normally made against a post. Further, contractual
appointments are also not normally on Pay Scale. On the mere
fact that the advertisement as well as the appointment was
made initially for a period of five years, the nature of
appointment of the appellants cannot be termed as contractual
appointment. When a Government servant is contemplated to hold
a certain post for a limited period it is a Tenure Post.
31. The Fundamental Rules of the Tamil Nadu Government
defines Tenure Post. Fundamental Rule 9(30A) defines the
Tenure post in following manner:
"30A. Tenure Post means a permanent post which an
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individual Government servant may not hold for
more than a limited period.”
32. The fact that the advertisement limited the appointment
for a period of five years only becausse the posts were
contemplated for five years only, the appointment of the
appellants at best can be said as “Tenure appointment”.
Although temporary, adhoc and contractual appointments are
used in contradiction to a regular and permanent appointment
but between adhoc appointment and contract appointment,
distinction is there in service jurisprudence and both the
expressions cannot be interchangeably used. When the
advertisement against which the appellants were appointed and
the appointment order mentions the appointment as adhoc
appointment, we cannot approve the view of the High Court that
the nature of the appointment of the appellants was only a
contractual appointment.
33. Now, we come to the third reason given by the High Court.
The Division Bench of the High Court vide its judgment dated
20.07.2012 in W.P.No.1370313705/2012 held that the
appointment of the petitioners was on contract basis, hence,
the appointment has to be treated as appointment on
contractual basis. The judgment of Division Bench of Madras
26
High court in above writ petition has been brought on record
as Annexure P11. Three Writ Petitioners namely R.Radha,
A.S.Hassina and G.Savithri had filed three writ petitions
challenging the Order dated 25.04.2012 by which they were
relieved from the post of Additional District Judge(Fast Track
Courts). The writ petition was filed by those writ
petitioners, questioning the Order dated 25.04.2012 and
further seeking direction to consider the writ petitioners for
absorption and regularization of their services as Additional
District Judges. The Court in the aforesaid writ petitions was
thus concerned with the challenge to Order relieving the
appellants on 25.04.2012 and the question as to whether the
appellants were entitled to be absorbed as Additional District
Judges. The Division Bench upheld that the discontinuation by
the High court on the ground that Fast Track Courts itself
came to an end, the appellants could not have been allowed to
continue. Further, the High Court did not accept the claim of
the writ petitioners that they are entitled for regularization
and absorption. In the above context, the High Court observed
in paragraph 16 that the discontinuation and relieving of the
services of the writ petitioners are not coming within the
meaning of dismissal, removal or termination. The High Court
observed that the adhoc appointments given to the petitioners
27
on contract basis were discontinued and they were relieved
without any stigma. The High court in the above writ petitions
was not concerned with the claim of the appellants with the
nature of the appointment of the appellants for the purposes
of grant of pension. As noted above Rule 2 of 1978 Rules
excludes certain categories from application of rules. One of
such category is "persons employed on contract except when the
contract provides otherwise". Whether the case of the
appellants was covered by the excluded category under Rule
2(C) is a question which has arisen in these proceedings and
was not subject matter of earlier writ petitions decided on
20.07.2012.
34. Thus, any observation made by the High Court while
dismissing the writ petitions on 20.07.2012 challenging their
relieving orders and claim of absorption as regular District
Judges has to be read in context of the aforesaid writ
petitions and cannot be accepted as any expression regarding
entitlement or disentitlement of the appellants with regard
to claim of pension. We, thus, are of the view that High Court
instead of referring to Rule 78 and especially Rule 2 did not
advert to the nature of appointment in the above reference and
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followed the judgment dated 20.07.2012 which was rendered in
different context. In above view of the matter, all the three
reasons given by the High Court for dismissing the writ
petitions are unsustainable. But the question still remains as
to whether appellants are entitled for pension, gratuity and
leave encashment as claimed by them in their writ petitions.
35. We thus now proceed to examine the above claim in
accordance with 1978 Rules, which governs the grant of pension
and other relevant aspects.
36. Now, we revert to 1978 Rules to find out as to whether
the appellants were entitled for grant of pension. We have
already noticed Rule 2, which provides for application of the
rules to all Government servants appointed to Services and
posts in connection with the affairs of the State which are
borne on pensionable establishments. We having already held
that appellants were borne on pensionable establishment and
they were not employed on contract basis, Rule 2 is clearly
applicable on them. There is another category which is excepted
from application of the rule Rule 2(e), i.e. “persons
entitled to the benefit of a Contributory Provident Fund”. In
29
the present case, the appellants were not covered by any
Contributory Provident Fund Scheme rather covered by General
Provident Fund Scheme. The fact that appellants were covered
by General Provident Fund Scheme is apparent from the materials
brought on record. In Civil Appeal arising out of SLP (c) No.
2432829 of 2015 Annexure P10 is a letter of Assistant
Registrar, High Court of Madras dated 17.10.2012 addressed to
the Principal District and Sessions Judge, Tiruvallur, which
was on the subject “GPFFinal Closure applications of Selvi G.
Savithri, the then Additional District and Sessions Judge,
Tiruvallur, (FTC III, Tiruvallur) Discontinued from service on
25.04.2012Particulars called forRegarding.” It is useful to
extract the aforesaid letter, which is as follows:
30
"From
Tmt. P. Sandhiya, M.A. B.Ed.,B.L.,
Assistant Registrar (Per. Admn.)
High Court, Madras
To
The Principal District and Sessions Judge,
Tiruvallur (w.e)
Sir,
Sub: GPFFinal Closure applications of Selvi G.
Savithri, the then I Additional District and
Sessions Judge, Tiruvallur, (FTC III, Tiruvallur)
Discontinued from service on 25.04.2012Particulars
called forRegarding.”
Ref: Your letter D.No.4308/A/2012, dated
01.10.2012.
I am herewith enclosing a copy of the combined
application and to request you to obtain the same
in Triplicate from Selvi G. Savithri, then I
Additional District and Sessions Judge Tiruvallur,
now discontinued from service on 25.04.2012, for
sanction of General Provident Fund, and the same
may kindly be forwarded to the High Court, early,
for taking further action in the matter.
Yours faithfully,
Sd/
Asst. Registrar (Per.Admn.)”
31
37. The General Provident Fund (Tamil Nadu) Rules relates to
all Government Servants, whether permanent, temporary of
officiating other then reemployed servants, who shall join the
Fund. Learned counsel for the appellants has also brought on
record alongwith additional written submissions, details of pay
drawn by Selvi G. Savithri for the period April, 2011 to April,
2012, which indicate that General Provident Fund subscription
was Rs. 33,000/ in each month. Rule 3(o) defines 'qualifying
service' to the following effect:
“3(o) 'qualifying service' means permanent or
officiating service (including temporary service
under emergency provisions) rendered in a post
included in a pensionable establishment.”
38. Rule 11(1) provides for commencement of qualifying service
in following manner
“11. Commencement of qualifying services. — (1)
Subject to the provisions of these rules, qualifying
service of a Government servant shall commence from
the date he takes charge of the post to which he is
first appointed either substantively or in an
officiating or temporary capacity. In the case of a
Government servant retiring on or after the first
October 1969, temporary or officiating service in
the pensionable post whether rendered in a regular
capacity or not shall count in full as qualifying
services even if it is not followed by confirmation.
32
NOTE. In the case of the employees of the former
Pudukkottai State and persons transferred from the
former TravancoreCochin State consequent on the
reorganisation of States, temporary or officiating
service rendered in a regular capacity under the
former Pudukkottai State or the former
TravancoreCochin State shall count in full for
purposes of pension.
Xxxxxxxxxxxxxxxxxxxxxx
11(2) Half of the service paid from contingencies
shall be allowed to count towards qualifying
service for pension along with regular service
subject to the following conditions:
(i) Service paid from contingencies shall be
in a job involving whole time employment
and not parttime for a portion of the
day.
(ii) Service paid from contingencies shall be
in a type of work or job for which regular
posts could have been sanctioned, for example
Chowkidar.
(iii)Service shall be for which the payment is
made out on monthly or daily rates computed
and paid on a monthly basis and which,
though not analogous to the regular scale of
pay, shall bear some relation in the matter
of pay to those being paid for similar
jobs being performed by staff in regular
establishments.
(iv) Service paid from contingencies shall be
continuous and followed by absorption in
regular employment without a break.
(v) Subject to the above conditions being
fulfilled, the weightage for past service
paid from contingencies shall be limited to
the period after the 1st January 1961 for which
authentic records of service may be available.
(vi) Pension or revised pension admissible as the
case shall be paid from, the 23rd June, 1988.]
33
11(3) Half of the service rendered by a Government
servant under nonpensionable establishment shall be
counted for retirement benefits along with regular
service under pensionable establishment subject to
the following conditions:
(i) Service under nonpensionable establishment shall be
in a job involving whole time employment.
(ii) Service under nonpensionable establishment shall be
on time scale of pay and
(iii) Service under nonpensionable establishment shall
be continuous and followed by absorption in
pensionable establishment without a break.
Provided that in respect of those who retired
prior to the 14th February, 1996, the retirement
benefit or revised retirement benefit, as the case
may be, admissible to them shall be paid from the
14th February, 1996 and there shall' be no claim for
arrears in any case, for the period up to the 13th
February, 1996.]”
34
39. As per Rule 11(1) qualifying service of a Government
servant shall commence from the date he takes charge of the post
to which he is first appointed either substantively or in an
officiating or temporary capacity. The appellants, who were
appointed on ad hoc basis shall be clearly covered by nature of
appointment as contemplated in Rule 11(1). Rules 11(2) and 11(3)
also clearly provided that even half of the service paid from
contingencies are allowed to count towards qualifying service
and a half of the service rendered by a Government servant under
nonpensionable establishment is counted for retirement benefits
along with regular service with certain conditions. The Scheme
delineated by Rule 11 indicate a liberal scheme of recognition
of service as pensionable and to accept the submission of the
respondent that ad hoc appointment of the appellants are not
covered by Rule 11 is to strain the meaning and extent of the
Rule 11. Rule 21 provides for forfeiture of service on
dismissal or removal.
35
40. Chapter V of the Rules deals with “Classes of Pension and
conditions governing their grant”. Rule 32 deals with
“Superannuation Pension”. A Superannuation pension is granted to
a Government servant entitled or compelled, by rule, to retire
at a particular age. Rule 33 deals with Retiring pension, which
provides that a retiring pension shall be granted to a
Government servant who retires, or is retired, in advance of the
age of compulsory retirement, in accordance with the provisions
of Rule 42. Rule 38(1) deals with Compensation pension. Rule
38(1) is as follows:
“38. Compensation pension: (1) If a Government
servant is selected for discharge owing to the
abolition of his permanent post, he shall, unless
he is appointed to another post, the conditions of
which are deemed by the authority competent to
discharge him to be at least equal to those of his
own, have the option
(a) of taking compensation pension to which he may he
entitled for the service he had rendered, or
(b) of accepting another appointment on such pay as may
be offered and continuing to count his previous
service for pension.”
36
41. Rule 39 deals with Compulsory retirement pension.
Subrule(1) of Rule 39 provides that a Government servant
compulsorily retired from service as a penalty may be granted by
the authority competent to impose such penalty, pension or
gratuity, or both at a rate not less than twothirds and not
more than full compensation pension or gratuity or both
admissible to him on the date of his compulsory retirement.
Rule 40 contemplates that a Government servant who is dismissed
or removed from service although shall forfeit his pension and
gratuity but the authority competent to dismiss or remove him
from service may, if the case is deserving of special
consideration, sanction a compassionate allowance not exceeding
twothirds of pension or gratuity or both which would have been
admissible to him if he had retired on medical certificate. The
scheme as delineated by Chapter V of the Rules indicate that
rules framing authorities have adopted a liberal and flexible
approach in sanctioning the pension. Even the Government
servant, who is dismissed or removed, is also given a window to
get compassionate allowance, if the case is deserving a special
consideration. A Government servant, who retires voluntarily or
is compulsorily retired, is entitled to a retiring pension by
virtue of Rule 42(1), which is as follows:
37
“42(1). A Government servant, who, under
Fundamental Rule 56(d), retires voluntarily or is
required by the appointing authority to retire in
the public interest shall be entitled to a retiring
pension.”
42. Rule 43(1) deals with amount of pension, which is to the
following effect:
"43(1) In the case of a Government servant retiring
in accordance with the provisions of these rules
before completing qualifying service of ten years,
the amount of service gratuity shall be calculated
at the uniform rate of halfmonth's emoluments for
every completed six monthly period of service.”
43. Rule 43(2) provides that in the case of a Government
servant, retiring in accordance with the provisions of these
rules after completing qualifying service of not less than ten
years, the amount of pension shall be as set out in the
subrule(2). Thus, the qualifying service not less than ten
years is a condition for grant of pension. At this juncture,
let us revert back to the facts of the present case to find out
as to whether all the appellants have completed ten years of
qualifying service? From the record before us, following is the
service rendered by the appellants as Additional District Judge
(Fast Track Court):
38
Sl.
No.
Name Date of
Joining
Date of
Relieving
Total Period
1. K. AnbazhaganAppellant
No.1
13.02.2002 31.05.2011 09 Years 05
Months and 05
Days
2. Selvi G.
SavithriAppellant
No.2
24.02.2002 25.04.2012 10 Years 02
Months and 02
Days
3. R. Radha
Appellant No.3
23.02.2002 25.04.2012 10 Years 02
Months and 03
Days
4. A.S. Hassina –
Appellant No.4
23.02.2002 25.04.2012 10 Years 02
Months and 03
Days
5. P.G. Rajagopal
Appellant No.5
24.02.2002 31.10.2010 08 Years 08
Months and 08
Days
From the above, it is clear that apart form K. Anbazhagan
and P.G. Rajagopal, other three appellants have completed ten
years of qualifying service.
39
44. Now, we have to find out as to whether as per Rules, K.
Anbazhagan and P.G. Rajagopal are entitled to add any service
for the purpose of completing qualifying service. Rule 27 of the
Rules is a clear answer to the aforesaid issue. Both K.
Anbazhagan and P.G. Rajagopal were relieved on A/N of 31.05.2011
and 31.10.2010 respectively, on attaining the age of sixty
years. Rule 27 provides for addition in their service
qualifying for Superannuation pension, the actual period not
exceeding onefourth of the length of service or actual period
by which his age at the time of recruitment exceeds thirty years
or a period of five years, whichever is less. Rule 27(1) which
is relevant for the present case is as follows:
“27(1) Any person appointed to a service or post
and who retires from service on or after the 1'
July 1960 may add to his service qualifying for
superannuation pension (but not for any other class
of pension) the actual period not exceeding one
fourth of the length of his service or the actual
period by which his age at the time of recruitment
exceeds thirty years or a period of five years,
whichever is less, if the service or post is one
(a) for which postgraduate research or
specialist qualification or experience in
scientific, technological or professional
fields is prescribed not merely as
desirable but as obligatory qualification;
and
(b) for which the age of recruitment
prescribed in the service rules applicable
to the service or post concerned is above
thirty years.
40
xxxxxxxxxxxxxxxxxxx”
45. Rule 27(1) proviso specifically mentions that the age limit
prescribed in subrule(!) above viz. thirty years shall be
lowered to twenty seven years in so far as Judicial Officers who
are directly recruited as Magistrates, District Munsifs and
District Judges. The appellants are clearly covered by the
proviso to subrule(1) of Rule 27. As per Rule 27(1), out of
three periods mentioned therein, whichever is lesser, has to be
accepted. To the actual service, the period of onefourth of
the length of the service of the above appellants is a lessor
period, which needs to be added in their service. By addition
of onefourth period of the actual service of K.Anbazhagan and
P.G. Rajagopal, their qualifying service become more than ten
years. The above appellants also thus have qualifying service
of more than ten years, we thus conclude that all the appellants
before us have qualifying service of more than ten years.
Another relevant rule, which needs to be looked into is Rule 78.
Rule 78 provides for the date from which pension becomes
payable. Rule 78(1) is as follows:
41
"78(1) Except in the case of a Government servant to
whom the provision of rule 34 apply and subject to
the provisions of rule 9, 60 and 69 a pension other
than family pension shall become payable from the
date on which a Government servant ceases to be
borne on the establishment.”
42
46. The crucial words in Rule 78 are “shall become payable from
the date on which a Government servant ceases to be borne on the
establishment.” In the present cases, dates on which appellants
were relieved is the date from which they cease to be borne on
the establishment. Two appellants K.Anbazhagan and P.G.
Rajagopal were relieved on account of attaining age of sixty
years hence they were clearly entitled for superannuation
pension. Other three appellants were relieved by the High Court
due to the reasons that Fast Track Courts came to an end by
converting the Fast Track Courts into Permanent Courts of
Additional District Judge by Government order dated 26.08.2011.
49 Fast Track Courts, which were created under Eleventh Finance
Commission were retained on permanent basis as the post of
District Judge/Additional District Judge. The central funding
for Fast Track Courts was ceased on 31.03.2011 but the State of
Tamil Nadu has allowed to continue the said Courts for one more
year w.e.f. 01.04.2011, i.e. upto 31.03.2012. The State
Government has continued the post till 01.04.2012. 49 Fast
Track Courts become the Permanent Courts of Additional District
Judges. The relieving of other three appellants on 25.04.2012
was on the ground that since Fast Track Courts have been
discontinued, A.S. Hassina, R. Radha and Selvi G. Savithri are
relieved from their services. Rule 38 provides for a
43
compensation pension. The discontinuance of the posts held by
the above three appellants, w.e.f. 01.04.2012 and consequently
relieving of the aforesaid appellants, we are of the view that
above three appellants are also entitled for compensation
pension. We, thus, conclude that K. Anbazhagan and P.G.
Rajagopal are entitled for superannuation pension and other
three appellants namely A.S. Hassina, R. Radha and Selvi G.
Savithri are entitled for compensation pension. High Court fell
in error in rejecting their claim of pension.
47. With regard to compensation pension as contemplated by
Rule 38 there can be one aspect which also needs to be
considered. Rule 38 subrule (1) contemplates discharge owing
to the abolition of his permanent post. It may be contended
that Fast Track Courts as per order dated 18.12.2001 were not
the permanent posts and initially Fast Track Court Scheme was
only for five years which subsequently got extended to another
five years and one year. The discontinuance of Fast Track
Court cannot be treated as permanent abolition of post. The
present case is a case where the appellants had allowed to
work for 10 years and the post of Fast Track Court
(Additional District Court) held by the appellants was
discontinued with effect from 01.04.2012. It cannot be said
that relieving of the appellants was due to abolition of
44
permanent post but the basis for allowing compensation pension
in the circumstances as mentioned in subrule (1) of Rule 38
can be said to be very much present in the present case. The
appellants who worked for 10 years and were discontinued due
to discontinuation of posts which were held by them, the
equity and justice demands that they should also be given
compensation pension. Thus, in the present case even if
technically abolition of permanent post may not be involved
but for doing complete justice, direction for giving
compensation pension to the appellants is just and proper.
48. Learned senior counsel for the appellants has also placed
reliance on the judgment of this Court in Mahesh Chandra
Verma Vs. The State of Jharkhand and ors., 2018 (7) Scale
343. The question which arose in the aforesaid appeals for
consideration has been noted in the paragraph 1 of the
judgment which is to the following effect:
“1. The sole question, which arises for
consideration in these appeals is whether the
services rendered by the appellants/Judicial
Officers as Fast Track Court Judges is liable to
be counted for their pensionary and other
benefits, the appellants having joined the regular
judicial service thereafter.”
49. The appellants in the aforesaid case were directly
45
recruited from the Bar as Fast Track Court Judges. This Court
in paragraphs 15, 17 and 18 has held the following:
“15. The appellants were not appointed to the Fast
Track courts just at the whim and fancy of any
person, but were the next in line on the merit list
of a judicial recruitment process. They were either
part of the select list, who could not find a place
given the cadre strength, or those next in line in
the select list. Had there been adequate cadre
strength, the recruitment process would have
resulted in their appointment. We do believe that
these Judges have rendered services over a period
of nine years and have performed their role as
Judges to the satisfaction, otherwise there would
have been no occasion for their appointment to the
regular cadre strength. Not only that, they also
went through a second process for such recruitment.
We believe that it is a matter of great regret that
these appellants who have performed the functions
of a Judge to the satisfaction of the competent
authorities should be deprived of their pension and
retiral benefits for this period of service. The
appellants were not pressing before us any case of
seniority over any person who may have been
recruited subsequently, nor for any other benefit.
In fact, we had made it clear to the appellants
that we are only examining the issue of giving the
benefits of their service in the capacity of Fast
Track court Judges to be counted towards their
length of service for pensionary and retiral
benefits. To deny the same would be unjust and
unfair to the appellants. In any case, keeping in
mind the spirit of the directions made Under
Article 142 of the Constitution of India in Brij
Mohan Lal[II] and in Mahesh Chandra Verma, the
necessary corollary must also follow, of giving
benefit of the period of service in Fast Track
courts for their pension and retiral benefits. The
methodology of noncreation of adequate regular
cadre posts and the consequent establishment of
Fast Track courts manned by the appellants cannot
be used as a ruse to deny the dues of the
appellants.
46
17. The position in respect of the appellants is
really no different on the principle enunciated, as
there was need for a regular cadre strength keeping
in mind the inflow and pendency of cases. The Fast
Track Court Scheme was brought in to deal with the
exigency and the appellants were appointed to the
Fast Track courts and continued to work for almost
a decade. They were part of the initial select
list/merit list for recruitment to the regular
cadre strength but were not high enough to be
recruited in the existing strength. Even at the
stage of absorption in the regular cadre strength,
they had to go through a defined process in
pursuance of the judgment of this Court and have
continued to work thereafter.
18. We are, thus, unhesitatingly and unequivocally
of the view that all the appellants and Judicial
Officers identically situated are entitled to the
benefit of the period of service rendered as Fast
Track court Judges to be counted for their length
of service in determination of their pension and
retiral benefits.”
50. Although in the above case of Mahesh Chandra, Fast Track
Court Judges were ultimately absorbed in the regular cadre
strength but the fact that period of services as Fast Track
Court Judges had been directed to be added for their
pensionary benefits, does support the claim of the appellants
in the present case.
51. Another judgment on which reliance was placed by the
appellants is a judgment of this Court in Government of NCT
of Delhi and others Vs. All India Young Lawyers Association
(Registered) and another, (2009) 14 SCC 49. Learned counsel
47
submits that this Court in the above case had directed for
addition of 10 years or actual period of judicial service,
whichever is less, as qualifying service to the direct
recruits to Delhi Higher Judicial Service. In the above case
direct recruits to the Delhi Higher Judicial Service were
under 25% quota. The appellants were regularly recruited in
Delhi Higher Judicial Service in accordance with Delhi Higher
Judicial Service Rules, 1970. Direct recruits had filed writ
petition before the High Court of Delhi seeking a mandamus to
the appellants that the actual period of practice at the Bar
subject to a maximum of fifteen years, should be added to the
total pensionable service while computing the pension. The
High Court allowed the writ petition while giving weightage of
15 years of practice or such other number of years of practice
at the Bar, whichever is less. The Government of NCT of Delhi
filed an appeal. It has been noted by this Court in the
aforesaid judgment that the High Court after taking decision
on the Administrative side wrote to the Delhi Government and
it was only on 02.02.2006 by a letter, the Government has
indicated that it was agreeable to give weightage of seven
years of practice. The above fact is noted in paragraphs 6 and
7 which is to the following effect:
“6. The High Court, on the administrative side,
brought this fact to the notice of the Government
48
by writing a letter in the year 1987. Though
repeated reminders were sent to the Government, no
decision was taken by the Government till the end
of 2005 and only on 222006 by a letter, the
Government has indicated that it was agreeable to
give weightage of seven years of practice at the
Bar while computing the pension and other retiral
benefits for direct recruits.
7. Learned counsel appearing for the State
contended that the reason why the Government has
agreed to give weightage of seven years’ practice
at the Bar is that because in the case of direct
recruitments to the Delhi Higher Judicial Service,
a member should have seven years’ practice at the
Bar and that is why the Government thought it fit
to give weightage of seven years.”
52. This Court while allowing the appeal partly, directed the
Government of NCT to give weightage of ten years of practice
at the Bar or such number of years of actual service,
whichever is less. The above case is distinguishable due to
two reasons. Firstly, the direct recruits were Advocates
appointed in accordance with Delhi Higher Judicial Service
Rules, 1970. Secondly, the Government of NCT of Delhi has
agreed for giving weightage of seven years in their service
period. It was the concession given by the Government of NCT
of Delhi which was relied by this Court while issuing
direction. Thus, benefit of the above case is not available to
the appellants in the present case.
53. Now we come to the entitlement of gratuity by the
49
appellants. The definition of pension as given under Rule 3(m)
provides as follows:
“3(m) ‘pension’ includes gratuity except when the
term pension is used in contradistinction to
gratuity but does not include dearness allowance.”
54. When the appellants are entitled for grant of pension,
they are obviously entitled for grant of gratuity. Rule 45 of
the 1978 Rules provided that a Government servant, who has
completed five years’ qualifying service and has become
eligible for service gratuity or pension under Rule 43, shall
be granted gratuity. Rule 45 subrule (1)(a) is as follows:
“45. DeathcumRetirement Gratuity.(1)(a)A
Government servant, who has completed five years’
qualifying service and has become eligible for
service gratuity or pension under rule 43, shall,
on his retirement be granted death cum retirement
gratuity as in the table below for each completed
six monthly period of qualifying service, subject
to a maximum of fifteen times, the emoluments:”
55. We, thus, are of the view that appellants are also
entitled for gratuity which may be computed in accordance with
1978 Rules.
56. Now remains the issue of leave encashment. The Tamil Nadu
Leave Rules, 1933 govern all aspects of the leave. Rule 7
deals with leave at the credit of a Government servant. Rule 7
50
also provides in respect of the benefit of encashment of
earned leave at the credit of a Government servant. Rule 7(i)
and (ii) are as follows:
“7.(i) Leave at the credit of a Government
servant in his leave account, other than earned
leave and leave on private affairs shall lapse on
the date of retirement or on the date of
termination of the extension of service, as the
case may be. The competent authority (leave
sanctioning authority) shall suo motu draw and
disburse the cash benefits of encashment of earned
leave and leave on private affairs at the credit
of the Government servants in Groups B, C and D
without formal sanction orders on the date of
retirement or on the date of termination of
extension of service, as the case may be, or on
the next working day, following the date of
retirement or the date of termination of extension
of service, if the date of retirement or the date
of termination of extension of service happens to
be a holiday. In respect of Group A Officers, the
Accountant General or Pay and Accounts Officer, as
the case may be, shall, suo motu issue the pay
slips for encashment of earned leave and leave on
private affairs, as aforesaid, at the credit of
the Government servants without formal sanction
orders, on the date of retirement or on the date
of termination of extension of service, as the
case may be, or on the next working day, following
the date of retirement or the date of termination
of extension of service if the date of retirement
or the date of termination of extension of service
happens to be a holiday.
(ii) The benefit of encashment of earned leave at
the credit of a Government servant on the date of
retirement or on the date of termination of
extension of service, as the case may be, shall be
subject to a maximum of 240 days and shall be
eligible for cash equivalent of full leave salary
which shall be based on Pay, Dearness Allowance,
House Rent Allowance and City Compensatory
Allowance for the entire period of leave at
51
credit.”
57. The appellants claimed earned leave to their credit on
the date when they retired/relieved. The appellants were
clearly entitled for encashment of leave subject to a maximum
of 240 days.
58. In view of the foregoing discussions, we allow these
appeals in the following manner:
(1) The judgment of the High Court dated 01.04.2015 is set
aside and the Civil Appeals filed by the appellants are
allowed.
(2) The respondents are directed to sanction superannuation
pension to appellants K. Anbazhagan and P.G. Rajagopal in
accordance with 1978 Rules.
(3) The respondents are directed to sanction compensation
pension to the appellants, namely, Selvi G. Savithri, R. Radha
and A.S. Hassina.
(4) All the appellants are entitled for payment of gratuity
in accordance with 1978 Rules.
(5) The respondents are also directed to permit encashment of
earned leave to the credit of the appellants subject to a
maximum of 240 days.
52
(6) All above retiral benefits be computed and paid to the
appellants within a period of two months from today. In the
event payments are made after two months, the appellants shall
be entitled for such payments alongwith the simple interest @
7% per annum.
(7) The parties shall bear their own costs.
..........................J.
( A.K. SIKRI )
..........................J.
( ASHOK BHUSHAN )
NEW DELHI,
AUGUST 13,2018.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 82168217 OF 2018
(Arising out of SLP (C) No(s). 2432824329/2015)
K. ANBAZHAGAN & ANR. … APPELLANT(S)
VERSUS
THE REGISTRAR GENERAL
HIGH COURT OF MADRAS & ANR. … RESPONDENT(S)
WITH
CIVIL APPEAL NOS. 82188221 OF 2018
(Arising out of SLP (C) No(s). 2692926932/2015)
R. RADHA & ANR. … APPELLANT(S)
VERSUS
STATE OF TAMIL NADU & ORS. … RESPONDENT(S)
AND
CIVIL APPEAL NO.8222 OF 2018
(Arising out of SLP (C) No. 5467/2016)
P.G. RAJAGOPAL … APPELLANT(S)
VERSUS
THE REGISTRAR GENERAL
HIGH COURT AT MADRAS & ANR. … RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN, J.
Leave granted.
2. These three appeals have been filed against the common
2
judgment of Madras High Court dated 01.04.2015 by which
judgment, writ petitions filed by the appellants have been
dismissed. The questions of facts and law raised in the
appeals being similar all the appeals have been heard together
and are being decided by this common judgment.
3. There are five appellants in these three appeals, who
were appointed as Fast Track Judges from the Bar in the State
of Tamil Nadu, consequent to creation of Fast Track Courts
under the Eleventh Finance Commission Report of the Government
of India. This Court vide its judgment dated 06.05.2002 in
Brij Mohan Lal Vs. Union of India & Ors., (2002) 5 SCC 1 had
issued various directions with regard to appointment and other
matters pertaining to Fast Track Courts under Eleventh Finance
Commission for setting up of 1734 Fast Track Courts in various
States of the country.
4. After creation of Fast Track Courts under Eleventh
Finance Commission, the Madras High Court vide its order dated
21.11.2001 issued an order pertaining terms and conditions for
the Additional District Judges for the Fast Track Courts and
the instructions thereon. The High Court vide its
Notification dated 19.12.2001 invited applications from the
3
practicing Advocates for the post of Additional District
Judges (Fast Track Court) on ad hoc basis for a period of five
years. The terms of the notification provided that applicants
should have completed 45 years of age and shall not have
reached 55 years as on 01.01.2002.
5. The High Court vide its order dated 14.02.2002 appointed
the appellants, who all were advocates as Additional District
and Sessions Judge (Fast Track Courts) on Ad hoc Basis. The
initial ad hoc appointment of all the appellants was for five
years, which was extended. All the appellants were
subsequently relieved from their assignments. In the year
2011/2012, appellants also filed different writ petitions for
their absorption as Additional District and Sessions Judge in
the regular cadre, which writ petitions were dismissed by the
High Court. After the orders rejecting the claim of the
appellants for absorption in regular cadre of Additional
District Judges, the appellants filed representations praying
for grant of pension and other retiral benefits, which were
rejected by the High Court. Second round of litigation was
initiated by the appellants claiming retiral benefits
including pension, gratuity, and leave encashment, which has
been dismissed by the High Court by its common judgment dated
4
01.04.2015. Apart from above common facts regarding the
appellants, few individual facts pertaining to their period of
working and some other facts need to be separately noted in
each appeal, which are as follows:
Civil Appeal Nos. ___________ of 2018
(arising out of SLP (C) Nos. 2432824329 of 2015)
6. There are two appellants namely, (i) K. Anbazhagan and
(ii) G. Savithri in this appeal. Both were appointed as Ad
hoc Fast Track Judges by the High Court order dated
14.02.2002. The appellant No.1 joined on 23.02.2002 and
appellant No.2 joined on 24.02.2002. The appellant No.1,
before joining as Fast Track Judge, was working as Additional
Public Prosecutor since 1996. The appellant No.1 resigned from
his post of Additional Public Prosecutor for joining as Fast
Track Judge. The appointment of appellant No.1 was extended
upto 31.05.2011, on which date he was attaining 60 years of
age. The appellant No.1 was relieved from his assignment
w.e.f. 31.05.2011 after putting in total period of 9 years, 5
months and 5 days to his credit. The appellant No.2 was
relieved from services by the Registrar General of the High
Court by order dated 25.04.2012. Appellant No.2 thus had put
in service of more than 10 years as Additional District Judge
(Fast Track Court). The appellant No.1 having submitted
5
representation for grant of pension and other retiral
benefits, an order dated 11.10.2012 was issued by the
Registrar General of High Court of Madras by which the claim
of appellant No.1 for grant of pension and other retiral
benefits has been rejected. The appellant No.2 had also made
a representation for grant of pension and other retiral
benefits, which too was rejected. Writ Petition No. 5187 of
2014 was filed by appellant No.2 whereas Writ Petition No.
23532 of 2014 was filed by the appellant No.2, which has been
dismissed by the common judgment dated 01.04.2015.
Civil Appeal Nos. ___________ of 2018
(arising out of SLP (C) Nos. 2692926932 of 2015)
7. This appeal has been filed by two appellants namely R.
Radha and A.S. Hassina. Both the appellants were appointed by
the same appointment order dated 14.02.2002. Both the
appellants joined on 23.02.2002. Both the appellants were
relieved by order dated 25.04.2012 of the Registrar General.
After unsuccessfully challenging the relieving order dated
25.04.2012 in the High Court, they also submitted
representation dated 14.08.2014 claiming pension and other
retiral benefits. The representations of the appellants were
rejected on 06.11.2014. The appellant No.1 filed Writ Petition
No. 2756 of 2015 whereas appellant No.2 filed a Writ Petition
6
No. 2755 of 2015. Both the writ petitions have been dismissed
on 01.04.2015.
Civil Appeal No. ___________ of 2018
(arising out of SLP (C) No. 5467 of 2016)
8. The appellant was also appointed by the same order dated
14.02.2002, in pursuance of which, he joined on 24.02.2002.
On 28.10.2010, the appellant was relieved of his position as
Additional District Judge (Fast Track Court) w.e.f. 31.10.2010
on which date he was attaining 60 years of age. The
petitioner's claim for pension was rejected on 13.07.2011 by
the High Court. Writ Petition No. 4276 of 2013 was filed by
the appellant praying for quashing the order dated 13.07.2011
and praying for direction to pay pension and other retiral
benefits, which petition has also been rejected on 01.04.2015.
9. We have heard Shri A. Mariarputham, learned senior
counsel for the appellants and learned counsel appearing for
the High Court as well as the State of Tamil Nadu.
10. Learned senior counsel for the appellants contends that
High Court committed error in rejecting the claim of the
appellants for pension, gratuity and leave encashment on wrong
premise that appellants were contract appointees and they are
not borne on pensionable establishment. He submits that
7
appointment of appellants by direct recruitment from Bar was
on adhoc basis, which is clear from the advertisement inviting
applications for filling the post. He submits that appellants
are not contract employees and on that ground denial of
retiral benefits is unsustainable. He further submits that
Fast Track Court Judges were in the same establishment as the
regular Additional District Judges. They being not in a
separate or independent establishment, they were clearly borne
on pensionable establishment. It is further submitted that
ad hoc appointments of Fast Tract Courts were made by both the
sources i.e. by promotion of judges from lower division as
well as from the bar. There cannot be any dispute that cadre
of Additional District Judges is borne on pensionable
establishment, hence there cannot be any differentiation with
regard to establishment in which both ad hoc appointees were
borne. All the appellants have completed qualifying service
of ten years under the Tamil Nadu Pension Rules, 1978
(hereinafter referred to as “1978 Rules”) and were clearly
entitled for pension and gratuity. It is further submitted
that before High Court both the claim of gratuity and leave
encashment were also raised by the appellants but the High
Court did not advert to the claim of gratuity or leave
encashment. The appellant K. Anbazhagan was relieved on
8
31.05.2011 after attaining the age of sixty years, hence he
was clearly entitled for superannuation benefits under the
1978 Rules. Learned senior counsel for the appellants further
submits that all the Fast Track Court Judges, who were
appointed from bar were entitled to add additional period to
their service as per Rule 27 as well as in accordance with
judgment of this Court in Govt. of NCT of Delhi and Ors. Vs.
All India Young Lawyers Association (Regd.) and Ors., (2009)
14 SCC 49. It is contended that entitlement for gratuity is
completion of five years of service and none of the appellants
could have been denied the gratuity. It is further submitted
that there was GPF deduction from the salary of all the
appellants, which also proves that they were part of the
pensionable establishment and entitled for payment of pension.
11. With regard to appellant K. Anbazhagan, it is further
submitted that he has earlier worked as Additional Public
Prosecutor, which was not a pensionable post. Rule 11(3) of
1978 Rules, provides that 50% of service in a nonpensionable
post would be added in his service. Thus, all the appellants
have completed ten years of qualifying service.
12. Learned counsel appearing for the High Court supporting
9
the judgment and the order contends that the appellants were
appointed on Fast Track Courts on contract basis. Fast Track
Courts cannot be said to have been created in pensionable
establishment hence the writ petition of the appellants have
rightly been dismissed. It is further submitted that
appellant's claim for regularisation on post of Additional
District Judge had been rejected, which was upheld by the High
Court vide its judgment dated 20.07.2012. The appellants
functioned purely on adhoc basis and were not appointed under
the Tamil Nadu State Judicial Service (Cadre and Recruitment)
Rules, 1995 nor were absorbed in any regular vacancy hence
they are not eligible for any retiral benefits, which are
available to those who were appointed by due recruitment
process under the above 1995 Rules. Tenure of the Fast Track
Courts was initially for only five years under the Eleventh
Finance Commission and subsequently extended for another five
years. Government of Tamil Nadu had further extended the
tenure of courts for a period of one year upto 31.03.2012.
Thereafter vide Government Order dated 26.08.2011, Government
of Tamil Nadu had sanctioned retention of 49 Fast Track Courts
in the cadre of District Judge functioning in the State of
Tamil Nadu. The appellants having accepted the purely
temporary nature of the post to which they were appointed,
10
they now cannot contend claiming all the benefits available to
those, who have been appointed to a substantive post by a
recruitment process.
13. Learned counsel appearing for the State of Tamil Nadu
while adopting the submissions of the learned counsel for the
High Court has submitted that appellants did not fulfill the
conditions for grant of pension and other retiral benefits
under the 1978 Rules, hence their claim was rightly rejected.
14. We have considered the submissions of the learned
counsel for the parties and have perused the records.
15. Before we proceed to examine the respective contentions
of the parties, it is necessary to notice the relevant
background facts for creation of Fast Track Courts in the
country and manner and nature of appointments made.
16. The Eleventh Finance Commission allocated funds for the
purpose of setting up of 1734 Courts in various States to deal
11
with the long pending cases particularly sessions cases.
Consequent to allocation of funds by the Finance Commission,
the State Governments were required to take necessary steps to
establish such courts. Finance Commission had suggested that
States may consider reemployment of retired judges for
limited period for the disposal of pending cases. Fast Track
Courts scheme was challenged in different High Courts
primarily on the ground that there was no constitutional
sanction for employment of retired judges and effective
guidelines have not been issued. This Court considered the
controversy after transferring various writ petitions pending
in the different High Courts under Article 139A of the
Constitution of India. The issues pertaining to Fast Track
Courts were decided by this Court in Brij Mohan Lal Vs. Union
of India and Others, (2002) 5 SCC 1. After noticing the funds
allocated under the Eleventh Finance Commission and other
respective contentions, this Court issued various directions
in Para 10. With regard to recruitment on Fast Track Courts,
directions 1 to 4 were given in Para 10, which are as
follows:
12
“10. Keeping in view the laudable objectives with
which the Fast Tract Courts Scheme has been
conceived and introduced, we feel the following
directions, for the present, would be sufficient
to take care of initial teething problems
highlighted by the parties:
Directions by the Court:
13
1. The first preference for appointment of judges
of the Fast Track Courts is to be given by adhoc
promotions from amongst eligible judicial
officers. While giving such promotion, the High
Court shall follow the procedures in force in the
matter of promotion to such posts in
Superior/Higher Judicial Services.
2. The second preference in appointments to Fast
Track Courts shall be given to retired judges who
have good service records with no adverse comments
in their ACRs, so far as judicial acumen,
reputation regarding honesty, integrity and
character are concerned. Those who were not given
the benefit of two years extension of the age of
superannuation, shall not be considered for
appointment. It should be ensured that they
satisfy the conditions laid down in Article 233(2)
and 309 of the Constitution. The High Court
concerned shall take a decision with regard to the
minimummaximum age of eligibility to ensure that
they are physically fit for the work in Fast Track
Courts.
3. No Judicial Officer who was dismissed or
removed or compulsorily retired or made to seek
retirement shall be considered for appointment
under the Scheme. Judicial Officers who have
sought voluntary retirement after initiation of
Departmental proceedings/inquiry shall not be
considered for appointment.
4. The third preference shall be given to members
of the Bar for direct appointment in these Courts.
They should be preferably in the age group of
3545 years, so that they could aspire to continue
against the regular posts if the Fast Track Courts
cease to function. The question of their
continuance in service shall be reviewed
periodically by the High Court based on their
performance. They may be absorbed in regular
vacancies, if subsequent recruitment takes place
and their performance in the Fast Track Courts is
found satisfactory. For the initial selection, the
14
High Court shall adopt such methods of selection
as are normally followed for selection of members
of the Bar as direct recruits to the
Superior/Higher Judicial Services.
Xxxxxxxxxxxxxxx”
17. One more direction, which needs to be noticed is Direction
No. 16 where this Court directed that persons appointed under
the Scheme will be governed for service benefits by the rules
and regulations, which are applicable to the members of the
judicial services of the State of equivalent status.
Direction No. 16 is as follows:
“16. Persons appointed under the Scheme shall be
governed, for the purpose of leave, reimbursement
of medical expenses. TA/DA and conduct rules and
such other service benefits, by the rules and
regulations which are applicable to the members of
the Judicial Services of the State of equivalent
status.”
18. In Para 12, States were directed to ensure compliance in
following words:
“12. Copies of the judgment be sent by the
Registry of this Court to each High Court and the
State Government concerned for ensuring compliance
with our directions.”
15
19. Even before the aforesaid directions were issued on
06.05.2002, different High Courts in the country in pursuance
of Eleventh Finance Commission allocation proceeded to take
steps for setting up of the Fast Track Courts. On the
recommendations received from the High Court of Madras, the
Government of Tamil Nadu granted sanctions of post by two
Government orders, for 30 posts (dated 03.08.2001) and 19
posts (dated 18.12.2001) respectively. In the present
appeals, we are concerned with appointment of the appellants,
which were made on 19 sanctioned posts, hence we need to
notice the Government Order dated 18.12.2001, by which 19 more
Fast Track Courts were sanctioned. Para 3 of the Government
Order dated 18.12.2011 provides for sanction of posts which is
as follows:
“3. The proposals of the High Court has been
examined by the Government and they have decided
to accept them. The Government accordingly direct
that as proposed by the High Court, 19 Fast Track
Courts be constituted in the places mentioned in
the Annexure to this order. The Government also
accord sanction for the creation of the following
posts temporarily for a period of one year from
the date of appointment.
16
Sl. No. Designation of the post Scale of pay
1. District Judge (Addl
District Judge cadre)
1500018600
2. Translator 55009000
3. Assistant 40006000
4. Steno Typist 40006000
5. Typist 32004900
6. Office Assistants 25503200
17
The Presiding Officers of these courts would be
the pay drawing officers.”
20. After creation of the posts, High Court issued a
Notification dated 19.12.2001 inviting applications from the
practicing advocates for being considered for the post of
Additional District Judge for Fast Track Courts on ad hoc
basis. Notification dated 19.12.2001 reads as under:
"Notification No. 159/2001
Applications are invited from the practicing
Advocates possessing the following qualifications
for being considered for the post Additional
District Judge (Fast Track Court) on Ad hoc basis
for a period of 5 years. The post carries a Scale
of Pay of Rs.1500040018600.
xxxxxxxxxxxxxxxxxxxx”
21. The appellants who were all practicing advocates and
fulfilling the eligibility as required in the notification
submitted the applications. The High Court after calling the
appellants to appear in interview sent a proposal to the
Government recommending 15 names for appointment as Additional
District Judge. The State Government by order dated
14.02.2002 appointed all the appellants. Paragraphs 4 and 5
of the order of the State Government dated 14.02.2002 is as
follows:
18
"4. The Government in consultation with the High
Court Madras, hereby appoint the following 15
(Fifteen) Advocates as Additional District and
Sessions Judges (Fast Track Courts) on Ad hoc
Basis subject to the terms and conditions fixed by
the High Court, Madras:
Thiru/Tmt/Selvi
1. K. Anbazhagan
2. G.K. Bharathi
3. Bhagirathi R Angarajan
4. V.B. Chinnappan
5. R. Duraisamy
6. A. Devaki
7. A.S. Hassina
8. V. Meganathan
9. S. Mani
10. P. Pandurangan
11. K. Pandurangan
12. R. Radha
13. P.G. Rajagopal
14. M. Sekar &
15. G. Savithri
5. The above Additional District and Sessions
Judges will draw a pay of Rs.15,000/ in the scale
of Rs.1500040018600 and other usual
allowances.”
22. We may first notice the reasons given by the High Court
for rejecting the claim of pension of the appellants. The High
19
Court has mainly given following reasons for rejecting the
claim:
1) The Fast Track Courts created under Eleventh Finance
Commission cannot be said to have been created in a
'pensionable establishment'.
2) Rule 11 of 1978 Rules, which provides for commencement
of qualifying service does not cover appointment on
contractual basis. The appointments of appellants were
appointments on contract basis, hence they are not
covered by Rule 11 of 1978 Rules.
3) Division Bench of High court in its judgment dated
20.07.2012 rendered in Writ Petition No.1370313705 of
2012 treated the appointment of appellants as contractual
appointment.
23. The first issue to be answered is as to whether the
appointments of appellants were appointment on 'pensionable
establishment' or not. The expression 'pensionable
establishment' is not defined under the 1978 Rules. Rule 2 of
1978 Rules which provides for application of Rules is as
follows:
"2. Application: Save as otherwise provided in
these rules, these Rules shall apply to all
Government Servants appointed to Services and posts
20
in connection with the affairs of the State which
are borne on pensionable establishments, whether
temporary or permanent, but shall not apply toa)
Persons in causal and daily rated
employment;
b) Persons paid from contingencies;
c) Persons employed on contract except when
the contract provids otherwise;
d) Members of the AllIndia Services;
e) Persons who are entitled to the benefits
under the Factories Act, 1948 and the
Employees Provident Fund Act, 1952 excluding
those who are governed by Statutory Services
Rules and belong to pensionable service."
24. The expression 'pensionable establishment' has been used
in Rule 2. Rule 11 subRule (3) also uses the expression
'nonpensionable establishment'. An indication in chapter 12
of the Rules i.e. Rule 84 is given that service paid for from
a Local Fund does not qualify for pension which indicates that
services paid for from a Local Fund are services in
'nonpensionable establishment'. For the purposes of this
case, we have to only consider as to whether the establishment
where appellants were appointed and working was a 'pensionable
establishment' or 'nonpensionable establishment'.
25. We have noticed above the Government Order dated
18.12.2001 by which the State Government created nineteen Fast
21
Track Courts of District Judges(Additional District Judges) in
the pay scale of Rs.1500018600. The appellants in their
appointment Order dated 14.02.2002 were also referred to as
having been appointed as Additional District and Sessions
Judges (Fast Track Courts) on adhoc basis. The appointment
order further provided that the appellants as Additional
District and Sessions Judges will draw a pay in the scale of
Rs.1500040018600 and other usual allowances. The appellants
were appointed in the Judicial establishment of the district
and were part of the Subordinate Courts under the control of
the High Court. Clause 9 of the Government Order dated
18.12.2001 read as follows:
"9. The expenditure involved in the proposal shall
be debited to 2014.00 Administration of Justice
800other ExpenditureII State Plan – JA Eleventh
Finance Commission– Upgradation and Special Problem
Grant setting up of additional courts for disposal
of long pending cases 0.9 Grants in Adl.03. Other
grants for Specific Scheme (D.P.C.No.2014.00 800 JA
0934)”
26. The payment of salary to the appellants were made from
same sources by which other Additional District Judges and
other Judicial Officers of the State were being paid. There is
no indication from any of the material produced before us that
the appellants were appointed on any different establishment
22
than the Judicial establishment of the District.
27. We have noticed above that this Court in Brij Mohan Lal
Vs. Union of India and others in paragraph 10 of the judgment
has directed that persons appointed under the Scheme(Fast
Track Courts Scheme) shall be governed, for the purposes of
leave, reimbursement of medical expenses, TA/DA and conduct
rules and such other service benefits, by the rules and
regulations which are applicable to the members of the
judicial services of the State of equivalent status.
28. By direction 10(16), this Court had directed the State
Governments to ensure compliance, hence, the terms and
conditions of service of appellants were same as those other
judicial officers of the State as per Order of this Court.
High Court in its judgment although observed that Fast Track
Courts cannot be said to have been created in 'pensionable
establishment' but said conclusion has been arrived without
considering relevant materials and without giving any cogent
reasons. We thus are of the view that appointment of
appellants was in 'pensionable establishment'.
23
29. Now, we come to the second reason given by the High Court
that the appointments of the appellants were contractual
appointments. We have already noticed that the appointments of
the appellants were made against nineteen sanctioned posts of
Additional District Judges by Government Order dated
18.12.2001. The notification which was issued by the High
Court inviting applications from practising Advocates
mentioned that applications are invited from practising
Advocates for being considered for the post of Additional
District Judge (Fast Track Court) on adhoc basis for a period
of five years. It further mentioned that the post carries a
Scale of Pay of Rs.1500040018600. Thus, the notification
inviting applications never mentioned that it is a contractual
appointment. Further, the appointment order issued to the
appellants dated 14.02.2002, in paragraph 3 stated as follows:
"3. Accordingly, the High Court, Madras, has called
for applications from eligible Advocates for
filling up of 15 posts of Additional District
Judges (Fast Track Courts), conducted interview and
sent proposals to Government recommending 15 names
of Advocates for appointment as Additional District
and Sessions Judges(Fast Track Courts) on ad hoc
basis.”
The appointment order thus clearly mentioned that the
appointment is on adhoc basis.
24
30. In service jurisprudence, the appointments are made by
employer with different nomenclature/characteristics.
Appointments are made both on permanent or temporary basis
against permanent post or temporary post. The appointment can
also be made on adhoc basis on permanent or temporary post.
There is one common feature of appointments of permanent,
temporary or adhoc appointment i.e. those appointments are
made against the post whether permanent or temporary. On the
contrary, for contractual appointment, there is no requirement
of existence of any post. A contractual appointment is not
normally made against a post. Further, contractual
appointments are also not normally on Pay Scale. On the mere
fact that the advertisement as well as the appointment was
made initially for a period of five years, the nature of
appointment of the appellants cannot be termed as contractual
appointment. When a Government servant is contemplated to hold
a certain post for a limited period it is a Tenure Post.
31. The Fundamental Rules of the Tamil Nadu Government
defines Tenure Post. Fundamental Rule 9(30A) defines the
Tenure post in following manner:
"30A. Tenure Post means a permanent post which an
25
individual Government servant may not hold for
more than a limited period.”
32. The fact that the advertisement limited the appointment
for a period of five years only becausse the posts were
contemplated for five years only, the appointment of the
appellants at best can be said as “Tenure appointment”.
Although temporary, adhoc and contractual appointments are
used in contradiction to a regular and permanent appointment
but between adhoc appointment and contract appointment,
distinction is there in service jurisprudence and both the
expressions cannot be interchangeably used. When the
advertisement against which the appellants were appointed and
the appointment order mentions the appointment as adhoc
appointment, we cannot approve the view of the High Court that
the nature of the appointment of the appellants was only a
contractual appointment.
33. Now, we come to the third reason given by the High Court.
The Division Bench of the High Court vide its judgment dated
20.07.2012 in W.P.No.1370313705/2012 held that the
appointment of the petitioners was on contract basis, hence,
the appointment has to be treated as appointment on
contractual basis. The judgment of Division Bench of Madras
26
High court in above writ petition has been brought on record
as Annexure P11. Three Writ Petitioners namely R.Radha,
A.S.Hassina and G.Savithri had filed three writ petitions
challenging the Order dated 25.04.2012 by which they were
relieved from the post of Additional District Judge(Fast Track
Courts). The writ petition was filed by those writ
petitioners, questioning the Order dated 25.04.2012 and
further seeking direction to consider the writ petitioners for
absorption and regularization of their services as Additional
District Judges. The Court in the aforesaid writ petitions was
thus concerned with the challenge to Order relieving the
appellants on 25.04.2012 and the question as to whether the
appellants were entitled to be absorbed as Additional District
Judges. The Division Bench upheld that the discontinuation by
the High court on the ground that Fast Track Courts itself
came to an end, the appellants could not have been allowed to
continue. Further, the High Court did not accept the claim of
the writ petitioners that they are entitled for regularization
and absorption. In the above context, the High Court observed
in paragraph 16 that the discontinuation and relieving of the
services of the writ petitioners are not coming within the
meaning of dismissal, removal or termination. The High Court
observed that the adhoc appointments given to the petitioners
27
on contract basis were discontinued and they were relieved
without any stigma. The High court in the above writ petitions
was not concerned with the claim of the appellants with the
nature of the appointment of the appellants for the purposes
of grant of pension. As noted above Rule 2 of 1978 Rules
excludes certain categories from application of rules. One of
such category is "persons employed on contract except when the
contract provides otherwise". Whether the case of the
appellants was covered by the excluded category under Rule
2(C) is a question which has arisen in these proceedings and
was not subject matter of earlier writ petitions decided on
20.07.2012.
34. Thus, any observation made by the High Court while
dismissing the writ petitions on 20.07.2012 challenging their
relieving orders and claim of absorption as regular District
Judges has to be read in context of the aforesaid writ
petitions and cannot be accepted as any expression regarding
entitlement or disentitlement of the appellants with regard
to claim of pension. We, thus, are of the view that High Court
instead of referring to Rule 78 and especially Rule 2 did not
advert to the nature of appointment in the above reference and
28
followed the judgment dated 20.07.2012 which was rendered in
different context. In above view of the matter, all the three
reasons given by the High Court for dismissing the writ
petitions are unsustainable. But the question still remains as
to whether appellants are entitled for pension, gratuity and
leave encashment as claimed by them in their writ petitions.
35. We thus now proceed to examine the above claim in
accordance with 1978 Rules, which governs the grant of pension
and other relevant aspects.
36. Now, we revert to 1978 Rules to find out as to whether
the appellants were entitled for grant of pension. We have
already noticed Rule 2, which provides for application of the
rules to all Government servants appointed to Services and
posts in connection with the affairs of the State which are
borne on pensionable establishments. We having already held
that appellants were borne on pensionable establishment and
they were not employed on contract basis, Rule 2 is clearly
applicable on them. There is another category which is excepted
from application of the rule Rule 2(e), i.e. “persons
entitled to the benefit of a Contributory Provident Fund”. In
29
the present case, the appellants were not covered by any
Contributory Provident Fund Scheme rather covered by General
Provident Fund Scheme. The fact that appellants were covered
by General Provident Fund Scheme is apparent from the materials
brought on record. In Civil Appeal arising out of SLP (c) No.
2432829 of 2015 Annexure P10 is a letter of Assistant
Registrar, High Court of Madras dated 17.10.2012 addressed to
the Principal District and Sessions Judge, Tiruvallur, which
was on the subject “GPFFinal Closure applications of Selvi G.
Savithri, the then Additional District and Sessions Judge,
Tiruvallur, (FTC III, Tiruvallur) Discontinued from service on
25.04.2012Particulars called forRegarding.” It is useful to
extract the aforesaid letter, which is as follows:
30
"From
Tmt. P. Sandhiya, M.A. B.Ed.,B.L.,
Assistant Registrar (Per. Admn.)
High Court, Madras
To
The Principal District and Sessions Judge,
Tiruvallur (w.e)
Sir,
Sub: GPFFinal Closure applications of Selvi G.
Savithri, the then I Additional District and
Sessions Judge, Tiruvallur, (FTC III, Tiruvallur)
Discontinued from service on 25.04.2012Particulars
called forRegarding.”
Ref: Your letter D.No.4308/A/2012, dated
01.10.2012.
I am herewith enclosing a copy of the combined
application and to request you to obtain the same
in Triplicate from Selvi G. Savithri, then I
Additional District and Sessions Judge Tiruvallur,
now discontinued from service on 25.04.2012, for
sanction of General Provident Fund, and the same
may kindly be forwarded to the High Court, early,
for taking further action in the matter.
Yours faithfully,
Sd/
Asst. Registrar (Per.Admn.)”
31
37. The General Provident Fund (Tamil Nadu) Rules relates to
all Government Servants, whether permanent, temporary of
officiating other then reemployed servants, who shall join the
Fund. Learned counsel for the appellants has also brought on
record alongwith additional written submissions, details of pay
drawn by Selvi G. Savithri for the period April, 2011 to April,
2012, which indicate that General Provident Fund subscription
was Rs. 33,000/ in each month. Rule 3(o) defines 'qualifying
service' to the following effect:
“3(o) 'qualifying service' means permanent or
officiating service (including temporary service
under emergency provisions) rendered in a post
included in a pensionable establishment.”
38. Rule 11(1) provides for commencement of qualifying service
in following manner
“11. Commencement of qualifying services. — (1)
Subject to the provisions of these rules, qualifying
service of a Government servant shall commence from
the date he takes charge of the post to which he is
first appointed either substantively or in an
officiating or temporary capacity. In the case of a
Government servant retiring on or after the first
October 1969, temporary or officiating service in
the pensionable post whether rendered in a regular
capacity or not shall count in full as qualifying
services even if it is not followed by confirmation.
32
NOTE. In the case of the employees of the former
Pudukkottai State and persons transferred from the
former TravancoreCochin State consequent on the
reorganisation of States, temporary or officiating
service rendered in a regular capacity under the
former Pudukkottai State or the former
TravancoreCochin State shall count in full for
purposes of pension.
Xxxxxxxxxxxxxxxxxxxxxx
11(2) Half of the service paid from contingencies
shall be allowed to count towards qualifying
service for pension along with regular service
subject to the following conditions:
(i) Service paid from contingencies shall be
in a job involving whole time employment
and not parttime for a portion of the
day.
(ii) Service paid from contingencies shall be
in a type of work or job for which regular
posts could have been sanctioned, for example
Chowkidar.
(iii)Service shall be for which the payment is
made out on monthly or daily rates computed
and paid on a monthly basis and which,
though not analogous to the regular scale of
pay, shall bear some relation in the matter
of pay to those being paid for similar
jobs being performed by staff in regular
establishments.
(iv) Service paid from contingencies shall be
continuous and followed by absorption in
regular employment without a break.
(v) Subject to the above conditions being
fulfilled, the weightage for past service
paid from contingencies shall be limited to
the period after the 1st January 1961 for which
authentic records of service may be available.
(vi) Pension or revised pension admissible as the
case shall be paid from, the 23rd June, 1988.]
33
11(3) Half of the service rendered by a Government
servant under nonpensionable establishment shall be
counted for retirement benefits along with regular
service under pensionable establishment subject to
the following conditions:
(i) Service under nonpensionable establishment shall be
in a job involving whole time employment.
(ii) Service under nonpensionable establishment shall be
on time scale of pay and
(iii) Service under nonpensionable establishment shall
be continuous and followed by absorption in
pensionable establishment without a break.
Provided that in respect of those who retired
prior to the 14th February, 1996, the retirement
benefit or revised retirement benefit, as the case
may be, admissible to them shall be paid from the
14th February, 1996 and there shall' be no claim for
arrears in any case, for the period up to the 13th
February, 1996.]”
34
39. As per Rule 11(1) qualifying service of a Government
servant shall commence from the date he takes charge of the post
to which he is first appointed either substantively or in an
officiating or temporary capacity. The appellants, who were
appointed on ad hoc basis shall be clearly covered by nature of
appointment as contemplated in Rule 11(1). Rules 11(2) and 11(3)
also clearly provided that even half of the service paid from
contingencies are allowed to count towards qualifying service
and a half of the service rendered by a Government servant under
nonpensionable establishment is counted for retirement benefits
along with regular service with certain conditions. The Scheme
delineated by Rule 11 indicate a liberal scheme of recognition
of service as pensionable and to accept the submission of the
respondent that ad hoc appointment of the appellants are not
covered by Rule 11 is to strain the meaning and extent of the
Rule 11. Rule 21 provides for forfeiture of service on
dismissal or removal.
35
40. Chapter V of the Rules deals with “Classes of Pension and
conditions governing their grant”. Rule 32 deals with
“Superannuation Pension”. A Superannuation pension is granted to
a Government servant entitled or compelled, by rule, to retire
at a particular age. Rule 33 deals with Retiring pension, which
provides that a retiring pension shall be granted to a
Government servant who retires, or is retired, in advance of the
age of compulsory retirement, in accordance with the provisions
of Rule 42. Rule 38(1) deals with Compensation pension. Rule
38(1) is as follows:
“38. Compensation pension: (1) If a Government
servant is selected for discharge owing to the
abolition of his permanent post, he shall, unless
he is appointed to another post, the conditions of
which are deemed by the authority competent to
discharge him to be at least equal to those of his
own, have the option
(a) of taking compensation pension to which he may he
entitled for the service he had rendered, or
(b) of accepting another appointment on such pay as may
be offered and continuing to count his previous
service for pension.”
36
41. Rule 39 deals with Compulsory retirement pension.
Subrule(1) of Rule 39 provides that a Government servant
compulsorily retired from service as a penalty may be granted by
the authority competent to impose such penalty, pension or
gratuity, or both at a rate not less than twothirds and not
more than full compensation pension or gratuity or both
admissible to him on the date of his compulsory retirement.
Rule 40 contemplates that a Government servant who is dismissed
or removed from service although shall forfeit his pension and
gratuity but the authority competent to dismiss or remove him
from service may, if the case is deserving of special
consideration, sanction a compassionate allowance not exceeding
twothirds of pension or gratuity or both which would have been
admissible to him if he had retired on medical certificate. The
scheme as delineated by Chapter V of the Rules indicate that
rules framing authorities have adopted a liberal and flexible
approach in sanctioning the pension. Even the Government
servant, who is dismissed or removed, is also given a window to
get compassionate allowance, if the case is deserving a special
consideration. A Government servant, who retires voluntarily or
is compulsorily retired, is entitled to a retiring pension by
virtue of Rule 42(1), which is as follows:
37
“42(1). A Government servant, who, under
Fundamental Rule 56(d), retires voluntarily or is
required by the appointing authority to retire in
the public interest shall be entitled to a retiring
pension.”
42. Rule 43(1) deals with amount of pension, which is to the
following effect:
"43(1) In the case of a Government servant retiring
in accordance with the provisions of these rules
before completing qualifying service of ten years,
the amount of service gratuity shall be calculated
at the uniform rate of halfmonth's emoluments for
every completed six monthly period of service.”
43. Rule 43(2) provides that in the case of a Government
servant, retiring in accordance with the provisions of these
rules after completing qualifying service of not less than ten
years, the amount of pension shall be as set out in the
subrule(2). Thus, the qualifying service not less than ten
years is a condition for grant of pension. At this juncture,
let us revert back to the facts of the present case to find out
as to whether all the appellants have completed ten years of
qualifying service? From the record before us, following is the
service rendered by the appellants as Additional District Judge
(Fast Track Court):
38
Sl.
No.
Name Date of
Joining
Date of
Relieving
Total Period
1. K. AnbazhaganAppellant
No.1
13.02.2002 31.05.2011 09 Years 05
Months and 05
Days
2. Selvi G.
SavithriAppellant
No.2
24.02.2002 25.04.2012 10 Years 02
Months and 02
Days
3. R. Radha
Appellant No.3
23.02.2002 25.04.2012 10 Years 02
Months and 03
Days
4. A.S. Hassina –
Appellant No.4
23.02.2002 25.04.2012 10 Years 02
Months and 03
Days
5. P.G. Rajagopal
Appellant No.5
24.02.2002 31.10.2010 08 Years 08
Months and 08
Days
From the above, it is clear that apart form K. Anbazhagan
and P.G. Rajagopal, other three appellants have completed ten
years of qualifying service.
39
44. Now, we have to find out as to whether as per Rules, K.
Anbazhagan and P.G. Rajagopal are entitled to add any service
for the purpose of completing qualifying service. Rule 27 of the
Rules is a clear answer to the aforesaid issue. Both K.
Anbazhagan and P.G. Rajagopal were relieved on A/N of 31.05.2011
and 31.10.2010 respectively, on attaining the age of sixty
years. Rule 27 provides for addition in their service
qualifying for Superannuation pension, the actual period not
exceeding onefourth of the length of service or actual period
by which his age at the time of recruitment exceeds thirty years
or a period of five years, whichever is less. Rule 27(1) which
is relevant for the present case is as follows:
“27(1) Any person appointed to a service or post
and who retires from service on or after the 1'
July 1960 may add to his service qualifying for
superannuation pension (but not for any other class
of pension) the actual period not exceeding one
fourth of the length of his service or the actual
period by which his age at the time of recruitment
exceeds thirty years or a period of five years,
whichever is less, if the service or post is one
(a) for which postgraduate research or
specialist qualification or experience in
scientific, technological or professional
fields is prescribed not merely as
desirable but as obligatory qualification;
and
(b) for which the age of recruitment
prescribed in the service rules applicable
to the service or post concerned is above
thirty years.
40
xxxxxxxxxxxxxxxxxxx”
45. Rule 27(1) proviso specifically mentions that the age limit
prescribed in subrule(!) above viz. thirty years shall be
lowered to twenty seven years in so far as Judicial Officers who
are directly recruited as Magistrates, District Munsifs and
District Judges. The appellants are clearly covered by the
proviso to subrule(1) of Rule 27. As per Rule 27(1), out of
three periods mentioned therein, whichever is lesser, has to be
accepted. To the actual service, the period of onefourth of
the length of the service of the above appellants is a lessor
period, which needs to be added in their service. By addition
of onefourth period of the actual service of K.Anbazhagan and
P.G. Rajagopal, their qualifying service become more than ten
years. The above appellants also thus have qualifying service
of more than ten years, we thus conclude that all the appellants
before us have qualifying service of more than ten years.
Another relevant rule, which needs to be looked into is Rule 78.
Rule 78 provides for the date from which pension becomes
payable. Rule 78(1) is as follows:
41
"78(1) Except in the case of a Government servant to
whom the provision of rule 34 apply and subject to
the provisions of rule 9, 60 and 69 a pension other
than family pension shall become payable from the
date on which a Government servant ceases to be
borne on the establishment.”
42
46. The crucial words in Rule 78 are “shall become payable from
the date on which a Government servant ceases to be borne on the
establishment.” In the present cases, dates on which appellants
were relieved is the date from which they cease to be borne on
the establishment. Two appellants K.Anbazhagan and P.G.
Rajagopal were relieved on account of attaining age of sixty
years hence they were clearly entitled for superannuation
pension. Other three appellants were relieved by the High Court
due to the reasons that Fast Track Courts came to an end by
converting the Fast Track Courts into Permanent Courts of
Additional District Judge by Government order dated 26.08.2011.
49 Fast Track Courts, which were created under Eleventh Finance
Commission were retained on permanent basis as the post of
District Judge/Additional District Judge. The central funding
for Fast Track Courts was ceased on 31.03.2011 but the State of
Tamil Nadu has allowed to continue the said Courts for one more
year w.e.f. 01.04.2011, i.e. upto 31.03.2012. The State
Government has continued the post till 01.04.2012. 49 Fast
Track Courts become the Permanent Courts of Additional District
Judges. The relieving of other three appellants on 25.04.2012
was on the ground that since Fast Track Courts have been
discontinued, A.S. Hassina, R. Radha and Selvi G. Savithri are
relieved from their services. Rule 38 provides for a
43
compensation pension. The discontinuance of the posts held by
the above three appellants, w.e.f. 01.04.2012 and consequently
relieving of the aforesaid appellants, we are of the view that
above three appellants are also entitled for compensation
pension. We, thus, conclude that K. Anbazhagan and P.G.
Rajagopal are entitled for superannuation pension and other
three appellants namely A.S. Hassina, R. Radha and Selvi G.
Savithri are entitled for compensation pension. High Court fell
in error in rejecting their claim of pension.
47. With regard to compensation pension as contemplated by
Rule 38 there can be one aspect which also needs to be
considered. Rule 38 subrule (1) contemplates discharge owing
to the abolition of his permanent post. It may be contended
that Fast Track Courts as per order dated 18.12.2001 were not
the permanent posts and initially Fast Track Court Scheme was
only for five years which subsequently got extended to another
five years and one year. The discontinuance of Fast Track
Court cannot be treated as permanent abolition of post. The
present case is a case where the appellants had allowed to
work for 10 years and the post of Fast Track Court
(Additional District Court) held by the appellants was
discontinued with effect from 01.04.2012. It cannot be said
that relieving of the appellants was due to abolition of
44
permanent post but the basis for allowing compensation pension
in the circumstances as mentioned in subrule (1) of Rule 38
can be said to be very much present in the present case. The
appellants who worked for 10 years and were discontinued due
to discontinuation of posts which were held by them, the
equity and justice demands that they should also be given
compensation pension. Thus, in the present case even if
technically abolition of permanent post may not be involved
but for doing complete justice, direction for giving
compensation pension to the appellants is just and proper.
48. Learned senior counsel for the appellants has also placed
reliance on the judgment of this Court in Mahesh Chandra
Verma Vs. The State of Jharkhand and ors., 2018 (7) Scale
343. The question which arose in the aforesaid appeals for
consideration has been noted in the paragraph 1 of the
judgment which is to the following effect:
“1. The sole question, which arises for
consideration in these appeals is whether the
services rendered by the appellants/Judicial
Officers as Fast Track Court Judges is liable to
be counted for their pensionary and other
benefits, the appellants having joined the regular
judicial service thereafter.”
49. The appellants in the aforesaid case were directly
45
recruited from the Bar as Fast Track Court Judges. This Court
in paragraphs 15, 17 and 18 has held the following:
“15. The appellants were not appointed to the Fast
Track courts just at the whim and fancy of any
person, but were the next in line on the merit list
of a judicial recruitment process. They were either
part of the select list, who could not find a place
given the cadre strength, or those next in line in
the select list. Had there been adequate cadre
strength, the recruitment process would have
resulted in their appointment. We do believe that
these Judges have rendered services over a period
of nine years and have performed their role as
Judges to the satisfaction, otherwise there would
have been no occasion for their appointment to the
regular cadre strength. Not only that, they also
went through a second process for such recruitment.
We believe that it is a matter of great regret that
these appellants who have performed the functions
of a Judge to the satisfaction of the competent
authorities should be deprived of their pension and
retiral benefits for this period of service. The
appellants were not pressing before us any case of
seniority over any person who may have been
recruited subsequently, nor for any other benefit.
In fact, we had made it clear to the appellants
that we are only examining the issue of giving the
benefits of their service in the capacity of Fast
Track court Judges to be counted towards their
length of service for pensionary and retiral
benefits. To deny the same would be unjust and
unfair to the appellants. In any case, keeping in
mind the spirit of the directions made Under
Article 142 of the Constitution of India in Brij
Mohan Lal[II] and in Mahesh Chandra Verma, the
necessary corollary must also follow, of giving
benefit of the period of service in Fast Track
courts for their pension and retiral benefits. The
methodology of noncreation of adequate regular
cadre posts and the consequent establishment of
Fast Track courts manned by the appellants cannot
be used as a ruse to deny the dues of the
appellants.
46
17. The position in respect of the appellants is
really no different on the principle enunciated, as
there was need for a regular cadre strength keeping
in mind the inflow and pendency of cases. The Fast
Track Court Scheme was brought in to deal with the
exigency and the appellants were appointed to the
Fast Track courts and continued to work for almost
a decade. They were part of the initial select
list/merit list for recruitment to the regular
cadre strength but were not high enough to be
recruited in the existing strength. Even at the
stage of absorption in the regular cadre strength,
they had to go through a defined process in
pursuance of the judgment of this Court and have
continued to work thereafter.
18. We are, thus, unhesitatingly and unequivocally
of the view that all the appellants and Judicial
Officers identically situated are entitled to the
benefit of the period of service rendered as Fast
Track court Judges to be counted for their length
of service in determination of their pension and
retiral benefits.”
50. Although in the above case of Mahesh Chandra, Fast Track
Court Judges were ultimately absorbed in the regular cadre
strength but the fact that period of services as Fast Track
Court Judges had been directed to be added for their
pensionary benefits, does support the claim of the appellants
in the present case.
51. Another judgment on which reliance was placed by the
appellants is a judgment of this Court in Government of NCT
of Delhi and others Vs. All India Young Lawyers Association
(Registered) and another, (2009) 14 SCC 49. Learned counsel
47
submits that this Court in the above case had directed for
addition of 10 years or actual period of judicial service,
whichever is less, as qualifying service to the direct
recruits to Delhi Higher Judicial Service. In the above case
direct recruits to the Delhi Higher Judicial Service were
under 25% quota. The appellants were regularly recruited in
Delhi Higher Judicial Service in accordance with Delhi Higher
Judicial Service Rules, 1970. Direct recruits had filed writ
petition before the High Court of Delhi seeking a mandamus to
the appellants that the actual period of practice at the Bar
subject to a maximum of fifteen years, should be added to the
total pensionable service while computing the pension. The
High Court allowed the writ petition while giving weightage of
15 years of practice or such other number of years of practice
at the Bar, whichever is less. The Government of NCT of Delhi
filed an appeal. It has been noted by this Court in the
aforesaid judgment that the High Court after taking decision
on the Administrative side wrote to the Delhi Government and
it was only on 02.02.2006 by a letter, the Government has
indicated that it was agreeable to give weightage of seven
years of practice. The above fact is noted in paragraphs 6 and
7 which is to the following effect:
“6. The High Court, on the administrative side,
brought this fact to the notice of the Government
48
by writing a letter in the year 1987. Though
repeated reminders were sent to the Government, no
decision was taken by the Government till the end
of 2005 and only on 222006 by a letter, the
Government has indicated that it was agreeable to
give weightage of seven years of practice at the
Bar while computing the pension and other retiral
benefits for direct recruits.
7. Learned counsel appearing for the State
contended that the reason why the Government has
agreed to give weightage of seven years’ practice
at the Bar is that because in the case of direct
recruitments to the Delhi Higher Judicial Service,
a member should have seven years’ practice at the
Bar and that is why the Government thought it fit
to give weightage of seven years.”
52. This Court while allowing the appeal partly, directed the
Government of NCT to give weightage of ten years of practice
at the Bar or such number of years of actual service,
whichever is less. The above case is distinguishable due to
two reasons. Firstly, the direct recruits were Advocates
appointed in accordance with Delhi Higher Judicial Service
Rules, 1970. Secondly, the Government of NCT of Delhi has
agreed for giving weightage of seven years in their service
period. It was the concession given by the Government of NCT
of Delhi which was relied by this Court while issuing
direction. Thus, benefit of the above case is not available to
the appellants in the present case.
53. Now we come to the entitlement of gratuity by the
49
appellants. The definition of pension as given under Rule 3(m)
provides as follows:
“3(m) ‘pension’ includes gratuity except when the
term pension is used in contradistinction to
gratuity but does not include dearness allowance.”
54. When the appellants are entitled for grant of pension,
they are obviously entitled for grant of gratuity. Rule 45 of
the 1978 Rules provided that a Government servant, who has
completed five years’ qualifying service and has become
eligible for service gratuity or pension under Rule 43, shall
be granted gratuity. Rule 45 subrule (1)(a) is as follows:
“45. DeathcumRetirement Gratuity.(1)(a)A
Government servant, who has completed five years’
qualifying service and has become eligible for
service gratuity or pension under rule 43, shall,
on his retirement be granted death cum retirement
gratuity as in the table below for each completed
six monthly period of qualifying service, subject
to a maximum of fifteen times, the emoluments:”
55. We, thus, are of the view that appellants are also
entitled for gratuity which may be computed in accordance with
1978 Rules.
56. Now remains the issue of leave encashment. The Tamil Nadu
Leave Rules, 1933 govern all aspects of the leave. Rule 7
deals with leave at the credit of a Government servant. Rule 7
50
also provides in respect of the benefit of encashment of
earned leave at the credit of a Government servant. Rule 7(i)
and (ii) are as follows:
“7.(i) Leave at the credit of a Government
servant in his leave account, other than earned
leave and leave on private affairs shall lapse on
the date of retirement or on the date of
termination of the extension of service, as the
case may be. The competent authority (leave
sanctioning authority) shall suo motu draw and
disburse the cash benefits of encashment of earned
leave and leave on private affairs at the credit
of the Government servants in Groups B, C and D
without formal sanction orders on the date of
retirement or on the date of termination of
extension of service, as the case may be, or on
the next working day, following the date of
retirement or the date of termination of extension
of service, if the date of retirement or the date
of termination of extension of service happens to
be a holiday. In respect of Group A Officers, the
Accountant General or Pay and Accounts Officer, as
the case may be, shall, suo motu issue the pay
slips for encashment of earned leave and leave on
private affairs, as aforesaid, at the credit of
the Government servants without formal sanction
orders, on the date of retirement or on the date
of termination of extension of service, as the
case may be, or on the next working day, following
the date of retirement or the date of termination
of extension of service if the date of retirement
or the date of termination of extension of service
happens to be a holiday.
(ii) The benefit of encashment of earned leave at
the credit of a Government servant on the date of
retirement or on the date of termination of
extension of service, as the case may be, shall be
subject to a maximum of 240 days and shall be
eligible for cash equivalent of full leave salary
which shall be based on Pay, Dearness Allowance,
House Rent Allowance and City Compensatory
Allowance for the entire period of leave at
51
credit.”
57. The appellants claimed earned leave to their credit on
the date when they retired/relieved. The appellants were
clearly entitled for encashment of leave subject to a maximum
of 240 days.
58. In view of the foregoing discussions, we allow these
appeals in the following manner:
(1) The judgment of the High Court dated 01.04.2015 is set
aside and the Civil Appeals filed by the appellants are
allowed.
(2) The respondents are directed to sanction superannuation
pension to appellants K. Anbazhagan and P.G. Rajagopal in
accordance with 1978 Rules.
(3) The respondents are directed to sanction compensation
pension to the appellants, namely, Selvi G. Savithri, R. Radha
and A.S. Hassina.
(4) All the appellants are entitled for payment of gratuity
in accordance with 1978 Rules.
(5) The respondents are also directed to permit encashment of
earned leave to the credit of the appellants subject to a
maximum of 240 days.
52
(6) All above retiral benefits be computed and paid to the
appellants within a period of two months from today. In the
event payments are made after two months, the appellants shall
be entitled for such payments alongwith the simple interest @
7% per annum.
(7) The parties shall bear their own costs.
..........................J.
( A.K. SIKRI )
..........................J.
( ASHOK BHUSHAN )
NEW DELHI,
AUGUST 13,2018.
