@JUDGMENTTAG-ORDER
1. The petitioner was appointed as Secondary Grade Teacher on 09.12.2000 in a recognised Aided Minority School, viz. Little Flower Middle School, Lordhu Nagar, Pudukottai District. The Assistant Elementary Educational Officer, Pudukottai, approved his appointment with effect from 09.12.2000 and the same was duly endorsed in the service register, i.e., he was paid by the State for his services in the said aided school from the date of appointment, viz. 09.12.2000. Further, he was assigned with Teacher Provident Fund (TPF A/c.No.334536). The Assistant Elementary Educational Officer, Pudukottai, directed the school to deduct a sum of Rs.1,000/- towards TPF from 01.10.2000 onwards. Accordingly, the amount was deducted towards GPF and other pensionary benefits till 31.10.2005. While so, in the year 2005, the petitioner was selected and appointed as Junior Grade Secondary Grade Teacher through the Employment Exchange and the fifth respondent placed him in the seventh respondent school by proceedings in Na.Ka.No.6816/A4/2005 dated 31.10.2005. However, he was given consolidated pay on his appointment in the seventh respondent school. The seventh respondent school is a Panchayat Union Primary School. The consolidated pay was pursuant to G.O.Ms.No. 100, School Education - Budget, dated 27.06.2003. In view of the prevailing financial situation, the teachers who are appointed in regular posts were given consolidated pay for 5 years as per the said G.O.Ms.No. 100. The appointees were also designated as Junior Grade in the respective cadre.
2. In these circumstances, the petitioner was relieved from Little Flower Middle School on 08.11.2005 and the same was also approved by the Assistant Elementary Educational Officer, Pudukottai vided proceedings in Na.Ka.No.1899/A1/06 dated 07.11.2007. Immediately on being relieved on 08.11.2005, the petitioner joined in the seventh respondent school on 09.11.2005, i.e., the petitioner worked upto 08.11.2005 in the Little Flower Middle School, aided school, as stated above. On the next day, i.e., on 09.11.2005, he joined in the seventh respondent school, the Panchayat Union Primary School. Though it was stated that the petitioner was to continue in consolidated pay for 5 years, the Government issued G.O.Ms.No.99, School Education -Budget 2), dated 27.06.2006 withdrawing the system of Junior Grade appointments on consolidated pay. In view of the same, he was granted scale of pay on 01.06.2006 by proceedings of the fifth respondent in Na.Ka.No.4766/AA4/2006 dated 09.08.2006.
3. The petitioner made a representation dated 31.08.2006 to the second, fifth and sixth respondents requesting to continue him in the TPF Scheme, bearing TPF A/c.No.334536, i.e., he wanted to continue in the Old Pension Scheme. While so, in 2009, the Additional Assistant Elementary Educational Officer, the sixth respondent herein, placed him in the Contributory Pension Scheme and assigned CPS A/c. No.729143, and started deducting monthly contribution from his salary from 01.11.2009 to till date. Later, from March 2010, the Additional Assistant Elementary Educational Officer started deducting the contribution arrears admissible from 01.06.2006. However, the earlier TPF account is not closed till date.
4. The petitioner made a representation dated 07.09.2012 to continue him in the TPF Scheme with his A/c.No.334536. His application was forwarded to the third respondent along with recommendation in proceedings dated 09.11.2012 by the Additional Assistant Elementary Educational Officer.
5. In these circumstances, the third respondent passed the impugned proceedings in Na.Ka.No.6198/A2/ 2012 dated 10.12.2012 stating that he is eligible to continue only in the CPS Scheme. Hence, the petitioner has filed this writ petition.
6. A counter affidavit is filed by the fifth respondent. The learned Special Government Pleader representing the respondents 1 and 3 to 7 submitted that the counter filed by the fifth respondent could be taken as common counter affidavit for the respondents, whom he represents. The learned counsel for the second respondent has made submissions based on instructions. In fact, he supported the stand of the petitioner and he has submitted that the consolidated wages from 09.11.2005 till 31.05.2006 cannot be construed as break in service.
7. According to the petitioner, in view of the judgment of this Court dated 01.09.2014 in W.P.(MD)No. 5807 of 2012 in P.Saravanakumar v. The State of Tamil Nadu and five others, the consolidated wages cannot be taken as break in service. He relied more particularly on paragraph-12 of the judgment. The learned counsel for the petitioner has also placed reliance on Letter No.12788/Fin (Pension)/2007-1 dated 03.03.2007 and also another letter in Letter No.43459/Fin.(Pension)/08-1 dated 31.07.2008. Further the learned counsel for the petitioner has also relied on the order of this Court in W.P.No.13357 of 2015 dated 26.06.2015 in K.Vahitha Rahman v. The State of Tamil Nadu and five others, and also the judgment of this Court in N. Baskar v. Director of Elementary Education, reported in (2014) 8 MLJ 341. In fact the said judgment reported in (2014) 8 MLJ 341 is followed by me in the order dated 26.06.2015 in W.P.No.13357 of 2015. Relying on all those judgments, he has submitted that even if the consolidated pay period cannot be counted, the same could be condoned and the petitioner could not be denied pension, which is a valuable right to him, because, he joined before the introduction of the Contributory Pension Scheme and he was covered by Old Pension Scheme and he was also allotted TPF A/c.No. 334536.
8. The learned Special Government Pleader has reiterated the submissions made in the counter affidavit, more particularly, Paragraphs 4 to 7. The crux of the submissions is that since he was in consolidated pay from 09.11.2005 till 31.05.2006 and he was rightly brought under Contributory Pension Scheme and he could not claim to continue in the old Pension Scheme. Furthermore, he relied on the Clauses-3, 7 and 10 of the conditions of the order of appointment dated 31.10.2005. The learned Special Government Pleader, more particularly, relied on Clause No.10, wherein it is stated that the petitioner would be brought under Contributory Pension Scheme.
9. I have heard the submissions made on either side.
10. There are no factual disputes involved in this case. The facts are all admitted, i.e., the petitioner was governed by the old Pension Scheme and he was allotted TPF A/c.No.334536. He joined in the service as Secondary Grade Teacher in an aided school on 09.12.2000 and he continued upto 08.11.2005 till he was appointed as Junior Grade Secondary Grade Teacher in the seventh respondent School on 07.11.2005. In fact, there is no break in service as he worked upto 08.11.2005 in the aided school and from 09.11.2005 onwards he started working in the seventh respondent school. But the learned Special Government Pleader, has vehemently contended that since the petitioner was appointed by way of appointment order dated 31.10.2005 in consolidated pay, and also it was stated therein that he would be governed by Contributory Pension Scheme, he is governed only by Contributory Pension Scheme.
11. The Clauses-3, 7 and 10 of the conditions of the order of appointment, relied on by the Special Government Pleader, are as follows:
"3.xg;ge;j mog;gilapy; bjhFg;g[{jpaj;jpy; ,sepiy ,ilepiy Mrphpauhf / ,sepiy clw;fy;tp Mrphpah; / ,sepiy Mrphpauhf epakdk; bra;ag;gl;Ls;s nkw;Twpa njh;thsh; ,e;epakdk; bjhlh;ghd xg;ge;j gj;jpuj;jpid epakd mYtyUf;F mspj;jy; ntz;Lk;. njh;thsh; rk;ke;jg;gl;l khtl;lj; bjhlf;ff;fy;tp mYtyiu 10.11.05 njjpf;Fs; nehpy; re;jpj;J nkw;go xg;ge;jg; gj;jpuj;jpid bgw;W mjid Kd;W gpujpfspy; gpiz Kwpt[j; jhspy; (Bond Paper) g[{h;j;jp bra;J khtl;lj; bjhlf;ff;fy;tp mYtyhplk; mspj;jy; ntz;Lk;.
7.xg;ge;j mog;gilapy; epakdk; bgw;Ws;s ,e;j ,sepiy ,ilepiy Mrphpah; / ,sepiy clw;fy;tp MrphpaUf;F muRg; gzpapy; gzpnaw;w ehspy; ,Ue;J Ie;J tUl fhyj;jpw;F khjk; xd;Wf;F U.3000Kk; (Ugha; Kthapuk; kl;Lk;) ,sepiy MrphpaUf;F U.2500k; (Ugha; ,uz;lhapuj;J Ie;EhW kl;Lk;) bjhFg;g[{jpakhf tHq;fg;gLk;. jdpahh; Ie;J tUlq;fs; gzpapid jpUg;jpfukhf Koj;jg; gpd;dh; jhd; jdpauJ elj;ij> jFjp jpwik> gzpKg;g[ kw;Wk; tUlthhpahf jdpah; fw;gpf;Fk; ghlj;jpy; fhl;oa njh;r;rp rjtPjk; nghd;witf;Fl;gl;L Kiwahd Cjpa tpfpjj;jpw;F bfhz;Ltu mt;tikak; eilKiwapy; cs;s tpjpfspd;go ghprpypf;fg;gLk;.
10.jdpahh; Ie;J Mz;Lfs; xg;ge;j mog;gilapy; gzpapid jpUg;jpfukhf Koj;J Kiwahd mog;gilapy; gzp epakdk; bgWnthnuahdhy; mth; gq;Fj; bjhif bgW Xa;t[{jpaj; jpl;lj;jpd;
(Contributory Pension Scheme) fPH; bfhz;L tug;gLthh;."12. Before considering those conditions, I would like to state that the appointment order is a stereo type one, except typing the name of the person who is appointed to the post. The name of the petitioner is alone typed in the order and all other matters contained in the appointment order is a common to all persons who are appointed along with the petitioner pursuant to the selection made in 2005. Admittedly, after 01.04.2003, the teachers appointed afresh in Government service are governed by Contributory Pension Scheme. Hence, a condition like Clause-10 is incorporated without applying the mind as to whether the teacher who is appointed is already governed by the old Pension Scheme. Therefore, I do not find any merit in the submission made by the learned Special Government Pleader placing reliance on Clause-10 of the appointment order. Further the clauses 3 and 7 of the appointment order also could not advance the case of the respondent Educational Authorities. Just because the petitioner who was appointed in regular post was given consolidated pay, he could not be deprived of his valuable right to continue in the old Pension Scheme. Clauses 3 and 7 simply states that he would be appointed in consolidated pay for a period of five years, and as stated above, he was brought to regular scale within a period of six months.
13. At this juncture, it is useful to refer to the judgment of this Court dated 01.09.2014 in W.P.(MD)No. 5807 of 2012 in P.Saravanakumar v. The State of Tamil Nadu and five others, relied on by the learned counsel for the petitioner. In my view the said judgment squarely applies to the facts of this case. It is useful to extract Paragraph-12 of the said judgment:
"12.The learned Additional Government Pleader would, however, submit that on joining duty as B.T.Assistant in the 6th respondent School, the petitioner was only on consolidated pay between 20.02.2006 and 31.05.2006 and, therefore, it should be counted as break-in service period. This argument does not persuade me at all. It is not as though the petitioner was appointed on 20.02.2006 as a fresh entrant. Admittedly, he was working in a pensionable establishment for several years and thereafter with the permission of the Central Government and as clarified by the letters of the Central Government as well as the State Government referred to above, he joined service on 20.02.2006 and he was paid consolidated pay between 20.02.2006 and 31.05.2006 because the State Government, due to financial constraint, had ordered for payment of consolidated pay instead of regular time scale of pay. As rightly contended by the learned counsel for the petitioner, it is immaterial whether the payment was consolidated or it was time scale of pay. The fact remains that he was working in a pensionable establishment and in pensionable service. Though for such a short period he was paid consolidated pay, that will not amount to any break-in service so as to say that the period of service rendered by the petitioner prior to 20.02.2006 was not in a pensionable service. If the period between 20.02.2006 and 31.05.2006 is considered as break-in service, then the result would be disastrous which, in my considered opinion, will be an arbitrary exercise of power, violating Article 14 of the Constitution of India. The petitioner cannot be put in any disadvantage because he has been given to understand that the resignation is only in tune with a technical formality and since the Central Government itself has clarified that the petitioner can carry the benefits of the pensionable Scheme to which he was a member when he was in the Central Government Service. The State Government has also equally clarified that he can continue to be a member of the Old Scheme though he joined after 01.04.2003. In such view of the matter, the argument of the learned Additional Government Pleader that because the petitioner was on consolidated pay between 20.02.2006 and 31.05.2006 and that period should be taken as break in service cannot be accepted. In such view of the matter, I hold that the petitioner is entitled for the benefit of General Provident Fund, which is applicable to the employees who joined in service before 01.04.2003 and he is entitled for all consequential benefits."
14. By applying this judgment, I am of the view that the period of consolidated pay service from 09.11.2005 to 31.05.2006 cannot be taken as break in service.
15. At this juncture, it is also useful to extract the letter issued by the Finance Department which is enclosed at Page Nos.14 and 15 of the typed set of papers. Letter No.12788/Fin (Pension)/2007-1 dated 03.03.2007 of the Finance Department reads as follows:
"I am directed to invite your kind attention to the references cited and to state that the required clarification are furnished as follows:
1.If an employee working in aided institution under pensionable service gets appointment in Government service (without any break in service) through Teachers Recruitment Board or employment exchange after 1.4.2003 he shall be allowed to continue in the old pension scheme.
2.As per Rule 32(a) of Tamil Nadu Government Provident Fund Rules, if a Government servant who is a subscriber to any other Government provident Fund, which is a non Contributory Provident Fund, is permanently transferred to pensionable service under Government the amount of subscriptions together with interest thereon, standing to his credit in such other fund at the date of transfer, shall with the consent of the Government servant concerned be transferred to his credit in the Fund.
Head of the department or Appointing Authority should be addressed for taking necessary action to transfer the provident fund accounts."
16. The Letter No.43459/Fin.(Pension)/08-1 dated 31.07.2008 reads as follows:
"muR gzpahsh;fs; my;yJ muR cjtpbgWk; gs;spapy; Xa;t[{jpak; bgwj; jFjpa[s;s gzpapy; 1.4.2003f;F Kd;dh; gzpapy; nrh;e;J gzptud;Kiw bra;ag;gl;L gpd;dh; ntiytha;g;g[ mYtyfk; my;yJ Mrphpah; njh;t[ thhpak; thapyhf muRg; gs;sp my;yJ muR cjtp bgWk; gs;spfspy; Mrphpauhf 01.04.2003 md;W my;yJ mjw;F gpd;dh; gzpKwptpd;wp gzpakh;j;jg;gl;L gzpg[hpgth;fs; giHa Xa;t[{jpaj; jpl;lj;jpnyna bjhluyhk; vdj; bjspt[iu tHq;fg;gLfpwJ."
17. Therefore, the Government has made it clear that the teachers who are already governed by the old Pension Scheme and appointed after 01.04.2003 are entitled to be governed by the old Pension Scheme. Further, even if there is any break in service, the same has to be condoned exercising the power under Rules 24 and 25 of the Tamil Nadu Pension Rules, as held by this Court in the judgment dated 26.06.2015 in W.P.No.13357 of 2015, and the judgment in Baskar''s case, cited supra.
18. In Baskar''s case, the petitioner therein was employed in an aided school and on appointment in Government service, he joined the Government service. There was a break of 13 days, i.e., he joined the Government service after 13 days of his relief from the aided school. The said break was condoned by this Court in the said judgment. Likewise, one day break was condoned in my judgment dated 26.06.2015 in W.P.No. 13357 of 2015. As already stated, the second respondent has supported the claim of the petitioner, particularly placing reliance on Baskar''s case.
19. Hence for all the aforesaid reasons, I have no hesitation to quash the impugned order. Accordingly, the impugned order is quashed and a direction is issued to the respondents 3 to 7 to continue the petitioner in the old Pension Scheme in TPF A/c.No.334536. The respondents 3 to 7 are further directed to comply with the aforesaid direction within a period of eight weeks from the date of receipt of a copy of this order.
20. In the result, the writ petition is allowed in the above terms. No costs. Consequently, the connected miscellaneous petitions are closed.
