Service law – Judicial Service – Ad-hoc appointees, if entitled to pension and other retiral benefits – Appellants appointed as 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 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 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 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 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 – rr.2, 3, 11, 21, 42, 43, 45 and 78 – Tamil Nadu Leave Rules, 1933 – r.7. Service law – Judicial Service – Appointments – Contractual, 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 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 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] [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 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 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 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 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, 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 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, 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 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 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, 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 on pensionable establishment and they were not employed on contract basis, Rule 2 is clearly applicable on them. There is another category which is excepted from application of the rule - Rule 2(e), i.e. “persons entitled to the benefit of a Contributory Provident Fund”. In 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. [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 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 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 “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 indicate that rules framing authorities have adopted a liberal and flexible approach in sanctioning the pension. Even the Government servant, who is dismissed or removed, is also given a window to get compassionate allowance, if the case is deserving a special consideration. A Government servant, who retires voluntarily or is compulsorily retired, is entitled to a retiring pension by virtue of Rule 42(1). 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 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 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 were relieved by the High Court due to the reasons that Fast Track Courts came to an end by converting the Fast Track Courts into Permanent Courts of Additional District Judge by Government order dated 26.08.2011. 49 Fast Track Courts, which were created under Eleventh Finance Commission were retained on permanent basis as the post of District Judge/Additional District Judge. The central funding for Fast Track Courts 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 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’ 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 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 compensation pension in the circumstances as mentioned in sub-rule (1) of Rule 38, 1978 Rules can be said to be very much present in the present case. The appellants who worked for 10 years and were discontinued due to discontinuation of posts which were held by them, the equity and justice demands that they should also be given compensation pension. Thus, in the present case even if technically abolition of permanent post may not be involved but for doing complete justice, direction for giving compensation pension to the appellants is just and proper. [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 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]
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 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 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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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