Supreme Court of India
K. ANBAZHAGAN & ANR.versusTHE REGISTRAR GENERAL HIGH COURT OF MADRAS & ANR.
- Citation
- 2018 INSC 697
- Decided
- 13 August 2018
- Disposal
- Appeal(s) allowed
- Bench
- A K SIKRI
Holding
Ad‑hoc Fast Track Court judges appointed on tenure posts in the judicial establishment are borne on a pensionable establishment and are entitled to pension, gratuity and leave encashment.
Summary
The appellants were appointed as Additional District and Sessions Judges (Fast Track Courts) on an ad‑hoc basis for a five‑year term, later extended, and were subsequently relieved. They filed writ petitions seeking pension, gratuity and leave encashment, which the Madras High Court dismissed on the ground that their appointments were contractual and not in a pensionable establishment. The Supreme Court examined the nature of their appointments, the applicability of the Tamil Nadu Pension Rules, 1978, and the distinction between ad‑hoc, tenure and contractual appointments. It held that the appointments were made against sanctioned posts in the judicial establishment, were tenure appointments, and thus fell within the pensionable establishment. Consequently, the Court directed that the appellants be granted superannuation or compensation pension, gratuity and leave encashment as per the relevant rules. The High Court judgment was set aside and the appeals were allowed.
Issues considered
- The nature of the ad‑hoc appointments: whether they constitute appointments in a pensionable establishment.
- Whether the appointments are contractual or tenure appointments for the purposes of the Tamil Nadu Pension Rules, 1978.
- Entitlement of the appellants to superannuation pension or compensation pension under the 1978 Rules.
- Entitlement to gratuity under Rule 45 of the 1978 Rules.
- Entitlement to encashment of earned leave under the Tamil Nadu Leave Rules, 1933.
Legislation cited
- Fundamental Rules of Tamil Nadu Governments. 9(30-A)
- Tamil Nadu Leave Rules, 1933s. 7
- Tamil Nadu Pension Rules, 1978s. 11, s. 2, s. 21, s. 3, s. 42, s. 43, s. 45, s. 78
Subjects
service lawjudicial servicead‑hoc appointmenttenure appointmentpensionable establishmentsuperannuation pensioncompensation pensiongratuityleave encashmentFast Track Courts
Judgment
810 [2018]REPORTS
SUPREME COURT 10 S.C.R. 810 [2018] 10 S.C.R.
A K. ANBAZHAGAN & ANR.
v.
THE REGISTRAR GENERAL
HIGH COURT OF MADRAS & ANR.
B (Civil Appeal Nos. 8216-17 of 2018)
AUGUST 13, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Service law – Judicial Service – Ad-hoc appointees, if entitled
to pension and other retiral benefits – Appellants appointed as
C
Additional District and Sessions Judge (Fast Track Courts) from
the Bar on ad-hoc basis – They were eventually relieved – Writ
petitions filed by appellants for grant of pension and other retiral
benefits, dismissed – Held: Appellants were appointed in the Judicial
establishment of the district and were part of the Subordinate Courts
D under the control of the High Court – 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 that the appellants were appointed on
any different establishment than the Judicial establishment of the
District – Appointment of appellants was in ‘pensionable
E
establishment’ – Notification inviting applications never mentioned
that it was a contractual appointment – 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– In service
F jurisprudence there is distinction between ad-hoc appointment and
contract appointment, and both the expressions cannot be used
interchangeably – In view of the fact that the advertisement limited
the appointment for a period of five years only, the appointment of
the appellants at best can be said as “Tenure appointment”– All the
appellants have qualifying service of more than ten years as required
G
for grant of pension – High Court fell in error in rejecting their claim
of pension – Further, appellants are also entitled for gratuity which may be
computed in accordance with 1978 Rules – Appellants were also
entitled for encashment of leave subject to a maximum of 240 days -
Judgment of the High Court set aside – Tamil Nadu Pension Rules, 1978 –
H rr.2, 3, 11, 21, 42, 43, 45 and 78 – Tamil Nadu Leave Rules, 1933 – r.7.
810
K. ANBAZHAGAN & ANR. v. THE REGISTRAR GENERAL 811
HIGH COURT OF MADRAS & ANR.
Service law – Judicial Service – Appointments – Contractual, A
Ad-hoc and Tenure Appointments – Explained – Fundamental Rules
of the Tamil Nadu Government – Fundamental Rule 9(30-A).
Allowing the appeals, the Court
HELD: 1.1 The Eleventh Finance Commission allocated
funds for the purpose of setting up of 1734 Fast Track Courts in B
various States to deal 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. Fast Track Courts
scheme was challenged. The issues pertaining to Fast Track C
Courts were decided by Supreme Court in Brij Mohan Lal case
wherein various directions were issued in Para 10. In Direction
No. 16, Supreme 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. [Paras 16, 17] D
[820-G-H; 821-A, B; 822-D-E]
1.2 The appointments of the appellants were made against
nineteen sanctioned posts of Additional District Judges by
Government Order dated 18.12.2001. The appellants in their
appointment Order dated 14.02.2002 were referred to as having E
been appointed as Additional District and Sessions Judges (Fast
Track Courts) on ad-hoc basis. The appointment order further
provided that the appellants as Additional District and Sessions
Judges will draw a pay in the scale of Rs.15000-400-18600 and
other usual allowances. The appellants were appointed in the F
Judicial establishment of the district and were part of the
Subordinate Courts under the control of the High Court. 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 that the appellants were appointed G
on any different establishment than the Judicial establishment of
the District. The appointment of appellants was in ‘pensionable
establishment’. The notification inviting applications never
mentioned that it is a contractual appointment. The appointment
order thus clearly mentioned that the appointment was on H
812 SUPREME COURT REPORTS [2018] 10 S.C.R.
A ad-hoc basis. 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 ad-hoc basis on permanent or temporary post.
There is one common feature of appointments of permanent,
B
temporary or ad-hoc 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
C 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. [Paras 25, 26, 28-30] [826-C-E; F-G; 827-B-C, E,
D
G-H; 828-A-C]
1.3 The Fundamental Rules of the Tamil Nadu Government
defines Tenure Post. Fundamental Rule 9(30-A) defines the
Tenure post. The fact that the advertisement limited the
appointment for a period of five years only because the posts
E were contemplated for five years only, the appointment of the
appellants at best can be said as “Tenure appointment”. Although
temporary, ad-hoc and contractual appointments are used in
contradiction to a regular and permanent appointment but between
ad-hoc appointment and contract appointment, distinction is there
F 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 ad-hoc appointment, the view of the High
Court that the nature of the appointment of the appellants was
only a contractual appointment cannot be approved. [Paras 31,
G 32] [828-C, D-F]
1.4 Rule 2, Tamil Nadu Pension Rules, 1978 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. Appellants were borne
H
K. ANBAZHAGAN & ANR. v. THE REGISTRAR GENERAL 813
HIGH COURT OF MADRAS & ANR.
on pensionable establishment and they were not employed on A
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 the present case, the appellants were not covered by any
Contributory Provident Fund Scheme rather covered by General
B
Provident Fund Scheme. The fact that appellants were covered by
General Provident Fund Scheme is apparent from the materials
brought on record. [Para 36] [830-B-D]
1.5 Rule 3(o), 1978 Rules defines ‘qualifying service’. Rule
11(1), 1978 Rules provides for commencement of qualifying service.
As per Rule 11(1) qualifying service of a Government servant shall C
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). The Scheme delineated by Rule 11 indicate a liberal scheme D
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, 1978 Rules provides for forfeiture of service on dismissal
or removal. Chapter V of the Rules deals with “Classes of Pension
and conditions governing their grant”. Rule 32 deals with E
“Superannuation Pension”. A Superannuation pension is granted to
a Government servant entitled or compelled, by rule, to retire at a
particular age. Rule 38(1) deals with Compensation Pension. [Paras
37-40] [831-E-G; 833-C, D-F]
1.6 The scheme as delineated by Chapter V of the 1978 Rules F
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 G
compulsorily retired, is entitled to a retiring pension by virtue of
Rule 42(1). Rule 43(1) deals with amount of pension. 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 sub-rule(2). Thus, the qualifying service H
814 SUPREME COURT REPORTS [2018] 10 S.C.R.
A not less than ten years is a condition for grant of pension. All the
appellants have qualifying service of more than ten years. [Paras
41-43, 45] [834-D-F, G-H; 835-A; 839-D-E]
1.7 Rule 78, 1978 Rules provides for the date from which
pension becomes payable. The crucial words in Rule 78 are “shall
B 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 ‘KA’ and ‘PGR’ were
relieved on account of attaining age of sixty years hence, they were
clearly entitled for superannuation pension. Other three appellants
C 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
D as the post of District Judge/Additional District Judge. The central
funding for Fast Track Courts ceased on 31.03.2011 but the said
Courts were allowed 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. The relieving of other three appellants, ‘ASH’, ‘RR’
and ‘SGS’ on 25.04.2012 was on the ground that since Fast Track
E Courts were discontinued, they were relieved from their services.
Rule 38 provides for a compensation pension. In view of the
discontinuance of the posts held by the said three appellants, w.e.f.
01.04.2012 and their consequent relieving, they are also entitled
for compensation pension. It is thus concluded that ‘KA’ and ‘PGR’
F are entitled for superannuation pension and other three appellants
namely ‘ASH’, ‘RR’ and ‘SGS’ are entitled for compensation pension.
High Court fell in error in rejecting their claim of pension. [Paras
45, 46] [836-E-F, G-H; 837-A-C]
1.8 Rule 38 sub-rule (1), 1978 Rules contemplates
G discharge owing to the abolition of permanent post. The present
case is a case where the appellants were 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 permanent post but the basis for allowing
H compensation pension in the circumstances as mentioned in sub-
K. ANBAZHAGAN & ANR. v. THE REGISTRAR GENERAL 815
HIGH COURT OF MADRAS & ANR.
rule (1) of Rule 38, 1978 Rules can be said to be very much present A
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
B
involved but for doing complete justice, direction for giving
compensation pension to the appellants is just and proper. [Paras
47] [837-D-G]
1.9 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 C
completed five years’ qualifying service and has become eligible
for service gratuity or pension under Rule 43, shall be granted
gratuity. Appellants are also entitled for gratuity which may be
computed in accordance with 1978 Rules. [Paras 54, 55] [841-B,
D] D
1.10 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 also provides in respect of the benefit of
encashment of earned leave at the credit of a Government servant.
The appellants claimed earned leave to their credit on the date E
when they retired/relieved. The appellants were clearly entitled
for encashment of leave subject to a maximum of 240 days. The
judgment of the High Court is set aside. [Paras 56-58] [841-E;
842-D-E]
Govt. of NCT of Delhi and Ors. v. All India Young F
Lawyers Association (Regd.) and Ors. (2009) 14 SCC
49 : [2009] 3 SCR 555 – distinguished.
Brij Mohan Lal v. Union of India & Ors. (2002) 5 SCC
1 : [2002] 3 SCR 810; Mahesh Chandra Verma v. The
State of Jharkhand and ors. 2018 (7) SCALE 343 –
relied on. G
Case Law Reference
[2002] 3 SCR 810 relied on Para 3
[2009] 3 SCR 555 distinguished Para 10
2018 (7) SCALE 343 relied on Para 16 H
816 SUPREME COURT REPORTS [2018] 10 S.C.R.
A CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 8216-
8217 of 2018
From the Judgment and Order dated 01.04.2015 of the High Court
of Judicature at Madras in Writ Petition Nos.5187 and 23532 of 2014
WITH
B
C.A. Nos. 8218-8221/2018 and 8222/2018
A. Mariarputham, Sr. Adv., Ms. Aruna Mathur, Avneesh Arputham,
Ms. Anuradha Arputham, Sumit Kumar, Hemant Kumar, M/s. Arputham
Aruna And Co., Anandh Kannan N., Kaushik Poddar, B. Balaji, Ms.
C Meha Aggarwal, Yogesh Kanna, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. 1. Leave granted.
2. These three appeals have been filed against the common
judgment of Madras High Court dated 01.04.2015 by which judgment,
D
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,
E 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
F 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
G Judges for the Fast Track Courts and the instructions thereon. The
High Court vide its Notification dated 19.12.2001 invited applications
from the 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.
H
K. ANBAZHAGAN & ANR. v. THE REGISTRAR GENERAL 817
HIGH COURT OF MADRAS & ANR. [ASHOK BHUSHAN, J.]
5. The High Court vide its order dated 14.02.2002 appointed the A
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
B
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 C
claiming retiral benefits including pension, gratuity, and leave encashment,
which has been dismissed by the High Court by its common judgment
dated 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
D
as follows:-
Civil Appeal Nos. 8216-8217 of 2018
(arising out of SLP (C) Nos. 24328-24329 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 E
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, F
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 G
more than 10 years as Additional District Judge (Fast Track Court).
The appellant No.1 having submitted 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
H
818 SUPREME COURT REPORTS [2018] 10 S.C.R.
A 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.
B Civil Appeal Nos. 8218-8221 of 2018
(arising out of SLP (C) Nos. 26929-26932 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
C 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
D whereas appellant No.2 filed a Writ Petition No. 2755 of 2015. Both the
writ petitions have been dismissed on 01.04.2015.
Civil Appeal No. 8222 of 2018
(arising out of SLP (C) No. 5467 of 2016)
E 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
F 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
G 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.
H He submits that appointment of appellants by direct recruitment from
K. ANBAZHAGAN & ANR. v. THE REGISTRAR GENERAL 819
HIGH COURT OF MADRAS & ANR. [ASHOK BHUSHAN, J.]
Bar was on adhoc basis, which is clear from the advertisement inviting A
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
B
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 C
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
D
appellants but the High Court did not advert to the claim of gratuity or
leave encashment. The appellant K. Anbazhagan was relieved on
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 E
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.
F
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 G
that 50% of service in a non-pensionable 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
the judgment and the order contends that the appellants were appointed H
820 SUPREME COURT REPORTS [2018] 10 S.C.R.
A 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
B
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
C 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
D
appellants having accepted the purely temporary nature of the post to
which they were appointed, 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
E 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
F 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.
G
16. The Eleventh Finance Commission allocated funds for the
purpose of setting up of 1734 Courts in various States to deal 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
H Commission had suggested that States may consider re-employment of
K. ANBAZHAGAN & ANR. v. THE REGISTRAR GENERAL 821
HIGH COURT OF MADRAS & ANR. [ASHOK BHUSHAN, J.]
retired judges for limited period for the disposal of pending cases. Fast A
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
B
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:- C
“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: D
1. The first preference for appointment of judges of the Fast
Track Courts is to be given by ad-hoc 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. E
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 F
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 minimum-maximum age of eligibility to ensure G
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
H
822 SUPREME COURT REPORTS [2018] 10 S.C.R.
A 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 35-45 years, so that they could aspire to continue
B 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,
C the 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”
D 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:-
E “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.”
F 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.”
G 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
H
K. ANBAZHAGAN & ANR. v. THE REGISTRAR GENERAL 823
HIGH COURT OF MADRAS & ANR. [ASHOK BHUSHAN, J.]
19 posts (dated 18.12.2001) respectively. In the present appeals, we A
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:-
B
“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 C
for a period of one year from the date of appointment.
Sl. No. Designation of the post Scale of pay
1. District Judge (Addl 15000-18600 D
District Judge cadre)
2. Translator 5500-9000
3. Assistant 4000-6000
4. Steno Typist 4000-6000
5. Typist 3200-4900
6. Office Assistants 2550-3200 E
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 F
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 G
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.15000-
400-18600.
xxxxxxxxxxxxxxxxxxxx”
H
824 SUPREME COURT REPORTS [2018] 10 S.C.R.
A 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
B
of the State Government dated 14.02.2002 is as follows:-
“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,
C Madras:-
Thiru/Tmt/Selvi
1. K. Anbazhagan
2. G.K. Bharathi
D
3. Bhagirathi R Angarajan
4. V.B. Chinnappan
5. R. Duraisamy
6. A. Devaki
E
7. A.S. Hassina
8. V. Meganathan
9. S. Mani
F 10. P. Pandurangan
11. K. Pandurangan
12. R. Radha
13. P.G. Rajagopal
G 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.15000-400-18600- and
other usual allowances.”
H
K. ANBAZHAGAN & ANR. v. THE REGISTRAR GENERAL 825
HIGH COURT OF MADRAS & ANR. [ASHOK BHUSHAN, J.]
22. We may first notice the reasons given by the High Court for A
rejecting the claim of pension of the appellants. The High 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’. B
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. C
3) Division Bench of High court in its judgment dated 20.07.2012
rendered in Writ Petition No.13703-13705 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. D
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 E
to Services and posts in connection with the affairs of the
State which are borne on pensionable establishments,
whether temporary or permanent, but shall not apply to-
a) Persons in causal and daily rated employment;
F
b) Persons paid from contingencies;
c) Persons employed on contract except when the contract
provides otherwise;
d) Members of the All-India Services;
e) Persons who are entitled to the benefits under the G
Factories Act, 1948 and the Employees Provident Fund
Act, 1952 excluding those who are governed by Statutory
Services Rules and belong to pensionable service.”
H
826 SUPREME COURT REPORTS [2018] 10 S.C.R.
A 24. The expression ‘pensionable establishment’ has been used
in Rule 2. Rule 11 sub-Rule (3) also uses the expression ‘non-pensionable
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
‘non-pensionable establishment’. For the purposes of this case, we have
B
to only consider as to whether the establishment where appellants were
appointed and working was a ‘pensionable establishment’ or ‘non-
pensionable establishment’.
25. We have noticed above the Government Order dated
18.12.2001 by which the State Government created nineteen Fast Track
C Courts of District Judges (Additional District Judges) in the pay scale of
Rs.15000-18600. 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 ad-hoc basis. The
appointment order further provided that the appellants as Additional
D District and Sessions Judges will draw a pay in the scale of Rs.15000-
400-18600 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:
E “9. The expenditure involved in the proposal shall be debited
to 2014.00 Administration of Justice -800-other Expenditure-
II 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
F (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
G any different establishment 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
H medical expenses, TA/DA and conduct rules and such other service
K. ANBAZHAGAN & ANR. v. THE REGISTRAR GENERAL 827
HIGH COURT OF MADRAS & ANR. [ASHOK BHUSHAN, J.]
benefits, by the rules and regulations which are applicable to the members A
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 B
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’.
C
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 D
mentioned that applications are invited from practising Advocates for
being considered for the post of Additional District Judge (Fast Track
Court) on ad-hoc basis for a period of five years. It further mentioned
that the post carries a Scale of Pay of Rs.15000-400-18600. Thus, the
notification inviting applications never mentioned that it is a contractual E
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 F
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 ad-hoc basis. G
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 ad-hoc basis on
permanent or temporary post. There is one common feature of
H
828 SUPREME COURT REPORTS [2018] 10 S.C.R.
A appointments of permanent, temporary or ad-hoc 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
B
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
C defines Tenure Post. Fundamental Rule 9(30-A) defines the Tenure post
in following manner:
“30-A. Tenure Post means a permanent post which an
individual Government servant may not hold for more than
a limited period.”
D
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, ad-hoc and contractual
appointments are used in contradiction to a regular and permanent
E appointment but between ad-hoc 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 ad-hoc appointment, we cannot approve the view of the
F 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.13703-13705/2012 held that the appointment of the petitioners
G was on contract basis, hence, the appointment has to be treated as
appointment on contractual basis. The judgment of Division Bench of
Madras High court in above writ petition has been brought on record as
Annexure P-11. 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
H
K. ANBAZHAGAN & ANR. v. THE REGISTRAR GENERAL 829
HIGH COURT OF MADRAS & ANR. [ASHOK BHUSHAN, J.]
District Judge(Fast Track Courts). The writ petition was filed by those A
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
B
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 C
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 ad-
hoc appointments given to the petitioners on contract basis were
discontinued and they were relieved without any stigma. The High court
D
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 E
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 F
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 dis-entitlement 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 followed the judgment G
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. H
830 SUPREME COURT REPORTS [2018] 10 S.C.R.
A 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
B 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
C 2(e), i.e. “persons entitled to the benefit of a Contributory Provident Fund”.
In 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
D of SLP (c) No. 24328-29 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 “GPF-
Final Closure applications of Selvi G. Savithri, the then Additional District
and Sessions Judge, Tiruvallur, (FTC III, Tiruvallur)- Discontinued from
service on 25.04.2012-Particulars called for-Regarding.” It is useful to extract
E the aforesaid letter, which is as follows:-
“From
Tmt. P. Sandhiya, M.A. B.Ed.,B.L.,
Assistant Registrar (Per. Admn.)
F High Court, Madras
To
The Principal District and Sessions Judge,
Tiruvallur (w.e)
Sir,
G
Sub: GPF-Final Closure applications of Selvi G. Savithri, the then I
Additional District and Sessions Judge, Tiruvallur, (FTC III,
Tiruvallur)- Discontinued from service on 25.04.2012-Particulars
called for-Regarding.”
H
K. ANBAZHAGAN & ANR. v. THE REGISTRAR GENERAL 831
HIGH COURT OF MADRAS & ANR. [ASHOK BHUSHAN, J.]
Ref: Your letter D.No.4308/A/2012, dated 01.10.2012. A
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
B
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.)” C
37. The General Provident Fund (Tamil Nadu) Rules relates to all
Government Servants, whether permanent, temporary of officiating other
then re-employed 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, D
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 E
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 F
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
G
shall count in full as qualifying services even if it is not followed by
confirmation.
NOTE.- In the case of the employees of the former Pudukkottai
State and persons transferred from the former Travancore-
Cochin State consequent on the reorganisation of States, temporary
H
832 SUPREME COURT REPORTS [2018] 10 S.C.R.
A or officiating service rendered in a regular capacity under the former
Pudukkottai State or the former Travancore-Cochin State shall count
in full for purposes of pension.
Xxxxxxxxxxxxxxxxxxxxxx
11(2) Half of the service paid from contingencies shall be allowed to
B 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 part-time for a portion of the day.
C (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,
D 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.
E (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
F from, the 23rd June, 1988.]
11(3) Half of the service rendered by a Government servant under
non-pensionable establishment shall be counted for retirement benefits
along with regular service under pensionable establishment subject
to the following conditions:-
G • Service under non-pensionable establishment shall be in a job
involving whole time employment.
• Service under non-pensionable establishment shall be on time
scale of pay and
H
K. ANBAZHAGAN & ANR. v. THE REGISTRAR GENERAL 833
HIGH COURT OF MADRAS & ANR. [ASHOK BHUSHAN, J.]
• Service under non-pensionable establishment shall be A
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, B
1996 and there shall’ be no claim for arrears in any case, for the
period up to the 13th February, 1996.]”
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. C
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 non-pensionable
D
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. E
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 F
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 G
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 -
• of taking compensation pension to which he may he entitled
for the service he had rendered, or H
834 SUPREME COURT REPORTS [2018] 10 S.C.R.
A • of accepting another appointment on such pay as may be
offered and continuing to count his previous service for
pension.”
41. Rule 39 deals with Compulsory retirement pension. Sub-rule(1)
of Rule 39 provides that a Government servant compulsorily retired from
B 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 two-thirds
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
C
remove him from service may, if the case is deserving of special consideration,
sanction a compassionate allowance not exceeding two-thirds 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
D 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:-
E “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:-
F “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 half-month’s emoluments for every completed six
monthly period of service.”
G 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 sub-rule(2). Thus, the qualifying service not less than ten
years is a condition for grant of pension. At this juncture, let us revert back
H to the facts of the present case to find out as to whether all the appellants
K. ANBAZHAGAN & ANR. v. THE REGISTRAR GENERAL 835
HIGH COURT OF MADRAS & ANR. [ASHOK BHUSHAN, J.]
have completed ten years of qualifying service? From the record before us, A
following is the service rendered by the appellants as Additional District
Judge (Fast Track Court):-
S. No. Name Date of Date of Total Period
Joining Relieving
1. K. Anbazhagan- 13.02.2002 31.05.2011 09 Years 05 Months B
Appellant No.1 and 05 Days
2. Selvi G. Savithri- 24.02.2002 25.04.2012 10 Years 02 Months
Appellant No.2 and 02 Days
3. R. Radha - 23.02.2002 25.04.2012 10 Years 02 Months
Appellant No.3 and 03 Days
4. A.S. Hassina – 23.02.2002 25.04.2012 10 Years 02 Months C
Appellant No.4 and 03 Days
5. P.G. Rajagopal 24.02.2002 31.10.2010 08 Years 08 Months
Appellant No.5 and 08 Days
From the above, it is clear that apart form K. Anbazhagan and P.G. D
Rajagopal, other three appellants have completed ten years of qualifying
service.
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 E
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 one-fourth 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) F
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 G
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 post-graduate research or specialist qualification or
experience in scientific, technological or professional fields is H
836 SUPREME COURT REPORTS [2018] 10 S.C.R.
A 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.
B xxxxxxxxxxxxxxxxxxx”
45. Rule 27(1) proviso specifically mentions that the age limit prescribed
in sub-rule(!) 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
C the proviso to sub-rule(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 one-fourth 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 one-fourth period of the actual service of K.Anbazhagan and
D 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:-
E
“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.”
F
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
G 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
H
K. ANBAZHAGAN & ANR. v. THE REGISTRAR GENERAL 837
HIGH COURT OF MADRAS & ANR. [ASHOK BHUSHAN, J.]
post of District Judge/Additional District Judge. The central funding for A
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
B
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 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 C
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 D
Rule 38 there can be one aspect which also needs to be considered.
Rule 38 sub-rule (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 E
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 permanent F
post but the basis for allowing compensation pension in the circumstances
as mentioned in sub-rule (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 G
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. H
838 SUPREME COURT REPORTS [2018] 10 S.C.R.
A 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/
B 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 recruited
from the Bar as Fast Track Court Judges. This Court in paragraphs 15,
C 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
D 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
E 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
F 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
G 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
H giving benefit of the period of service in Fast Track courts for
K. ANBAZHAGAN & ANR. v. THE REGISTRAR GENERAL 839
HIGH COURT OF MADRAS & ANR. [ASHOK BHUSHAN, J.]
their pension and retiral benefits. The methodology of non- A
creation 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.
17. The position in respect of the appellants is really no different
on the principle enunciated, as there was need for a regular cadre B
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 C
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 D
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 E
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 F
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 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 G
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
H
840 SUPREME COURT REPORTS [2018] 10 S.C.R.
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
B
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:
C “6. The High Court, on the administrative side, brought this fact
to the notice of the Government 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 2-2-2006 by a letter, the Government has indicated
D 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
E 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
F 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
G 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 appellants.
The definition of pension as given under Rule 3(m) provides as follows:
H
K. ANBAZHAGAN & ANR. v. THE REGISTRAR GENERAL 841
HIGH COURT OF MADRAS & ANR. [ASHOK BHUSHAN, J.]
“3(m) ‘pension’ includes gratuity except when the term pension A
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’ B
qualifying service and has become eligible for service gratuity or pension
under Rule 43, shall be granted gratuity. Rule 45 sub-rule (1)(a) is as
follows:
“45. Death-cum-Retirement Gratuity.-(1)(a)A Government
servant, who has completed five years’ qualifying service and C
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:-”
D
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 also provides in E
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 F
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, G
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,
H
842 SUPREME COURT REPORTS [2018] 10 S.C.R.
A 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
B
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
C 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 credit.”
D 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:
E
(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
F 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
G 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.
H
K. ANBAZHAGAN & ANR. v. THE REGISTRAR GENERAL 843
HIGH COURT OF MADRAS & ANR. [ASHOK BHUSHAN, J.]
(6) All above retiral benefits be computed and paid to the A
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. B
Divya Pandey Appeals allowed.
C
D
E
F
G
H
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