Option To Continue With Old Pension Scheme Must Be Extended To All Persons Who Participated In Selection Prior To April 01, 2003 : Madras High Court

Justice GK Ilanthiraiyan noted that the new scheme was brought into force on January 1, 2004 but the vacancy arose as early as on November 9, 2002. The court further noted that Vallipavai was called for an interview on April 10, 2003 itself. 

“The contributory pension scheme was brought into force from 01.01.2004, whereas vacancy arose for the post of B.T.Assistant as early as on 09.11.2002 itself. After obtaining permission from the third respondent to fill up the vacancy, the fifth respondent requested the District Employment Exchange for list of suitable candidates by letter dated 02.03.2003 itself. After furnishing of the list of candidates, the petitioner was called for interview to be held on 10.04.2003. Therefore, the option to continue the old pension scheme must be extended to all those persons who were participated in the selection prior to the crucial date, but however got appointment letter after crucial date. Though GO.No.259 dated 06.08.2003 with effect from 01.04.2003 and the old pension scheme will not apply to the Government service who are appointed on or after 01.04.2003,” the court said.

Vallipavai was appointed on April 17, 2003. She argued that the service conditions prevailing on the date the recruitment process commenced, could not be permitted to be altered to the disadvantage of the employees. She also relied on the judgment of the Apex Court in Union of India Vs. Tushar Ranjan Mohanty where the court observed that the Rules under Article 309 of the Constitution cannot be made retrospectively so as to nullify the right vested in a person under a Statute or under the Constitution.

The court took note of the Office Memorandum issued by the Government wherein, considering the representation submitted by Government Servants appointed after October 1, 2004 for extending the benefit of the Old Pension Scheme, it was decided that in all cases where the Civil Government employee was appointed against a post or vacancy which was advertised/notified for recruitment/appointment prior to the date of notification for national pension scheme i.e. 22.12.2003 and is covered under the New Pension Scheme, a one-time option will be given to continue under the Old Pension Scheme.

The court also added that since the New Pension Scheme was made operative retrospectively, no employer and employee would have forethought that appointments made after April 2003 would not be eligible for the Old Pension. 

“In view of the above, this Court is of the considered opinion that the petitioner cannot be deprived of the benefit of old pension scheme. Therefore, the impugned orders are not applicable to the petitioner. The first and second respondents are directed to continue the petitioner under the Teacher's Provident Fund (Family Pension Scheme) in TPF.No.339415,” the court ordered.

Case Title: B Vallipavai v The State of Tamil Nadu

Citation: 2023 LiveLaw (Mad) 208

Counsel for the Petitioner: Mr.S.N.Ravichandran

Counsel for the Respondents: Mr.M.P.Murugan Raja, Government Advocate, Mr.P.Gopalan