K. ANBAZHAGAN & ANR. versus THE REGISTRAR GENERAL HIGH COURT OF MADRAS & ANR. on 13 August 2018

[2018] 10 S.C.R.

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K. ANBAZHAGAN & ANR.

v.

THE REGISTRAR GENERALHIGH 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 entitledto pension and other retiral benefits – Appellants appointed asCAdditional District and Sessions Judge (Fast Track Courts) fromthe Bar on ad-hoc basis – They were eventually relieved – Writpetitions filed by appellants for grant of pension and other retiralbenefits, dismissed – Held: Appellants were appointed in the Judicialestablishment of the district and were part of the Subordinate CourtsDunder the control of the High Court – Payment of salary to theappellants were made from same sources by which other AdditionalDistrict Judges and other Judicial Officers of the State were beingpaid – There is no indication that the appellants were appointed onany different establishment than the Judicial establishment of theDistrict – Appointment of appellants was in ‘pensionableEestablishment’ – Notification inviting applications never mentionedthat it was a contractual appointment – Mere fact that theadvertisement as well as the appointment was made initially for aperiod of five years, the nature of appointment of the appellantscannot be termed as contractual appointment– In serviceFjurisprudence there is distinction between ad-hoc appointment andcontract appointment, and both the expressions cannot be usedinterchangeably – In view of the fact that the advertisement limitedthe appointment for a period of five years only, the appointment ofthe appellants at best can be said as “Tenure appointment”– All theappellants have qualifying service of more than ten years as requiredGfor grant of pension – High Court fell in error in rejecting their claimof pension – Further, appellants are also entitled for gratuity which may becomputed in accordance with 1978 Rules – Appellants were alsoentitled for encashment of leave subject to a maximum of 240 days -Judgment of the High Court set aside – Tamil Nadu Pension Rules, 1978 –Hrr.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 Rulesof the Tamil Nadu Government – Fundamental Rule 9(30-A).

Allowing the appeals, the Court

HELD: 1.1 The Eleventh Finance Commission allocatedfunds for the purpose of setting up of 1734 Fast Track Courts invarious States to deal with the long pending cases particularlysessions cases. Consequent to allocation of funds by the FinanceCommission, the State Governments were required to takenecessary steps to establish such courts. Fast Track Courtsscheme was challenged. The issues pertaining to Fast TrackCourts were decided by Supreme Court in Brij Mohan Lal casewherein various directions were issued in Para 10. In DirectionNo. 16, Supreme Court directed that persons appointed underthe Scheme will be governed for service benefits by the rulesand regulations, which are applicable to the members of thejudicial 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 againstnineteen sanctioned posts of Additional District Judges byGovernment Order dated 18.12.2001. The appellants in theirappointment Order dated 14.02.2002 were referred to as havingbeen appointed as Additional District and Sessions Judges (FastTrack Courts) on ad-hoc basis. The appointment order furtherprovided that the appellants as Additional District and SessionsJudges will draw a pay in the scale of Rs.15000-400-18600 andother usual allowances. The appellants were appointed in theJudicial establishment of the district and were part of theSubordinate Courts under the control of the High Court. Thepayment of salary to the appellants were made from same sourcesby which other Additional District Judges and other JudicialOfficers of the State were being paid. There is no indication fromany of the material produced that the appellants were appointedon any different establishment than the Judicial establishment ofthe District. The appointment of appellants was in ‘pensionableestablishment’. The notification inviting applications nevermentioned that it is a contractual appointment. The appointmentorder thus clearly mentioned that the appointment was on A

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Aad-hoc basis. In service jurisprudence, the appointments are madeby employer with different nomenclature/characteristics.Appointments are made both on permanent or temporary basisagainst permanent post or temporary post. The appointment canalso be made on ad-hoc basis on permanent or temporary post.There is one common feature of appointments of permanent,Btemporary or ad-hoc appointment i.e. those appointments aremade against the post whether permanent or temporary. On thecontrary, for contractual appointment, there is no requirement ofexistence of any post. A contractual appointment is not normallymade against a post. Further, contractual appointments are alsoCnot normally on Pay Scale. On the mere fact that the advertisementas well as the appointment was made initially for a period of fiveyears, the nature of appointment of the appellants cannot betermed as contractual appointment. When a Government servantis 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,DG-H; 828-A-C]

1.3 The Fundamental Rules of the Tamil Nadu Governmentdefines Tenure Post. Fundamental Rule 9(30-A) defines theTenure post. The fact that the advertisement limited theappointment for a period of five years only because the postsEwere contemplated for five years only, the appointment of theappellants at best can be said as “Tenure appointment”. Althoughtemporary, ad-hoc and contractual appointments are used incontradiction to a regular and permanent appointment but betweenad-hoc appointment and contract appointment, distinction is thereFin service jurisprudence and both the expressions cannot beinterchangeably used. When the advertisement against which theappellants were appointed and the appointment order mentionsthe appointment as ad-hoc appointment, the view of the HighCourt that the nature of the appointment of the appellants was only a contractual appointment cannot be approved. [Paras 31,G32] [828-C, D-F]

1.4 Rule 2, Tamil Nadu Pension Rules, 1978 provides forapplication of the rules to all Government servants appointed toServices and posts in connection with the affairs of the State whichare borne on pensionable establishments. Appellants were borne on pensionable establishment and they were not employed oncontract basis, Rule 2 is clearly applicable on them. There is anothercategory which is excepted from application of the rule - Rule 2(e),i.e. “persons entitled to the benefit of a Contributory ProvidentFund”. In the present case, the appellants were not covered by anyContributory Provident Fund Scheme rather covered by GeneralProvident Fund Scheme. The fact that appellants were covered byGeneral Provident Fund Scheme is apparent from the materialsbrought on record. [Para 36] [830-B-D]

1.5 Rule 3(o), 1978 Rules defines ‘qualifying service’. Rule11(1), 1978 Rules provides for commencement of qualifying service.As per Rule 11(1) qualifying service of a Government servant shallcommence from the date he takes charge of the post to which he isfirst appointed either substantively or in an officiating or temporarycapacity. The appellants, who were appointed on ad hoc basis shallbe clearly covered by nature of appointment as contemplated in Rule11(1). The Scheme delineated by Rule 11 indicate a liberal schemeof recognition of service as pensionable and to accept the submissionof the respondent that ad hoc appointment of the appellants are notcovered by Rule 11 is to strain the meaning and extent of the Rule11. Rule 21, 1978 Rules provides for forfeiture of service on dismissalor removal. Chapter V of the Rules deals with “Classes of Pensionand conditions governing their grant”. Rule 32 deals with“Superannuation Pension”. A Superannuation pension is granted toa Government servant entitled or compelled, by rule, to retire at aparticular age. Rule 38(1) deals with Compensation Pension. [Paras37-40] [831-E-G; 833-C, D-F]

1.6 The scheme as delineated by Chapter V of the 1978 Rulesindicate that rules framing authorities have adopted a liberal andflexible approach in sanctioning the pension. Even the Governmentservant, who is dismissed or removed, is also given a window to getcompassionate allowance, if the case is deserving a specialconsideration. A Government servant, who retires voluntarily or iscompulsorily retired, is entitled to a retiring pension by virtue ofRule 42(1). Rule 43(1) deals with amount of pension. Rule 43(2)provides that in the case of a Government servant, retiring inaccordance with the provisions of these rules after completingqualifying service of not less than ten years, the amount of pensionshall be as set out in the sub-rule(2). Thus, the qualifying service A

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Anot less than ten yearsis a condition for grant of pension. All theappellants have qualifying service of more than ten years. [Paras41-43, 45] [834-D-F, G-H; 835-A; 839-D-E]

1.7 Rule 78, 1978 Rules provides for the date from whichpension becomes payable. The crucial words in Rule 78 are “shallBbecome payable from the date on which a Government servant ceasesto be borne on the establishment.” In the present cases, dates onwhich appellants were relieved is the date from which they cease tobe borne on the establishment. Two appellants ‘KA’ and ‘PGR’ wererelieved on account of attaining age of sixty years hence, they wereclearly entitled for superannuation pension. Other three appellantsCwere relieved by the High Court due to the reasons that Fast TrackCourts came to an end by converting the Fast Track Courts intoPermanent Courts of Additional District Judge by Government orderdated 26.08.2011. 49 Fast Track Courts, which were created underEleventh Finance Commission were retained on permanent basisDas the post of District Judge/Additional District Judge. The centralfunding for Fast Track Courts ceased on 31.03.2011 but the saidCourts were allowed for one more year w.e.f. 01.04.2011, i.e. upto31.03.2012. The State Government has continued the post till01.04.2012. The relieving of other three appellants, ‘ASH’, ‘RR’and ‘SGS’ on 25.04.2012 was on the ground that since Fast TrackECourts were discontinued, they were relieved from their services.Rule 38 provides for a compensation pension. In view of thediscontinuance of the posts held by the said three appellants, w.e.f.01.04.2012 and their consequent relieving, they are also entitledfor compensation pension. It is thus concluded that ‘KA’ and ‘PGR’Fare entitled for superannuation pension and other three appellantsnamely ‘ASH’, ‘RR’ and ‘SGS’ are entitled for compensation pension.High Court fell in error in rejecting their claim of pension. [Paras45, 46] [836-E-F, G-H; 837-A-C]

1.8 Rule 38 sub-rule (1), 1978 Rules contemplates

1.8 Rule 38 sub-rule (1), 1978 Rules contemplates Gdischarge owing to the abolition of permanent post. The presentcase is a case where the appellants were allowed to work for 10years and the post of Fast Track Court (Additional District Court)held by the appellants was discontinued with effect from01.04.2012. It cannot be said that relieving of the appellants wasdue to abolition of permanent post but the basis for allowingHcompensation pension in the circumstances as mentioned in sub- rule (1) of Rule 38, 1978 Rules can be said to be very much presentin the present case. The appellants who worked for 10 years andwere discontinued due to discontinuation of posts which wereheld by them, the equity and justice demands that they shouldalso be given compensation pension. Thus, in the present caseeven if technically abolition of permanent post may not beinvolved but for doing complete justice, direction for givingcompensation pension to the appellants is just and proper. [Paras47] [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 the1978 Rules provided that a Government servant, who hascompleted five years’ qualifying service and has become eligiblefor service gratuity or pension under Rule 43, shall be grantedgratuity. Appellants are also entitled for gratuity which may becomputed in accordance with 1978 Rules. [Paras 54, 55] [841-B,D]

1.10 The Tamil Nadu Leave Rules, 1933 govern all aspectsof the leave. Rule 7 deals with leave at the credit of a Governmentservant. Rule 7 also provides in respect of the benefit ofencashment of earned leave at the credit of a Government servant.The appellants claimed earned leave to their credit on the datewhen they retired/relieved. The appellants were clearly entitledfor encashment of leave subject to a maximum of 240 days. Thejudgment 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 SCC49 : [2009] 3 SCR 555 – distinguished.

Brij Mohan Lal v. Union of India & Ors. (2002) 5 SCC1 : [2002] 3 SCR 810; Mahesh Chandra Verma v. TheState of Jharkhand and ors. 2018 (7) SCALE 343 –relied on.

Case Law Reference

[2002] 3 SCR 810 [2009] 3 SCR 5552018 (7) SCALE 343

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ACIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 8216-8217 of 2018

From the Judgment and Order dated 01.04.2015 of the High Courtof Judicature at Madras in Writ Petition Nos.5187 and 23532 of 2014

WITH

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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. ArputhamAruna And Co., Anandh Kannan N., Kaushik Poddar, B. Balaji, Ms.CMeha 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 commonjudgment of Madras High Court dated 01.04.2015 by which judgment,Dwrit petitions filed by the appellants have been dismissed. The questionsof facts and law raised in the appeals being similar all the appeals havebeen heard together and are being decided by this common judgment.

3. There are five appellants in these three appeals, who wereappointed as Fast Track Judges from the Bar in the State of Tamil Nadu,Econsequent to creation of Fast Track Courts under the Eleventh FinanceCommission Report of the Government of India. This Court vide itsjudgment dated 06.05.2002 in Brij Mohan Lal Vs. Union of India &Ors., (2002) 5 SCC 1 had issued various directions with regard toappointment and other matters pertaining to Fast Track Courts underFEleventh Finance Commission for setting up of 1734 Fast Track Courtsin various States of the country.

4. After creation of Fast Track Courts under Eleventh FinanceCommission, the Madras High Court vide its order dated 21.11.2001issued an order pertaining terms and conditions for the Additional DistrictGJudges for the Fast Track Courts and the instructions thereon. TheHigh Court vide its Notification dated 19.12.2001 invited applicationsfrom the practicing Advocates for the post of Additional District Judges(Fast Track Court) on ad hoc basis for a period of five years. Theterms of the notification provided that applicants should have completed45 years of age and shall not have reached 55 years as on 01.01.2002.H

5. The High Court vide its order dated 14.02.2002 appointed theappellants, who all were advocates as Additional District and SessionsJudge (Fast Track Courts) on Ad hoc Basis. The initial ad hocappointment 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 fortheir absorption as Additional District and Sessions Judge in the regularcadre, which writ petitions were dismissed by the High Court. After theorders rejecting the claim of the appellants for absorption in regular cadreof Additional District Judges, the appellants filed representations prayingfor grant of pension and other retiral benefits, which were rejected bythe High Court. Second round of litigation was initiated by the appellantsclaiming retiral benefits including pension, gratuity, and leave encashment,which has been dismissed by the High Court by its common judgmentdated 01.04.2015. Apart from above common facts regarding theappellants, few individual facts pertaining to their period of working andsome other facts need to be separately noted in each appeal, which areas 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 TrackJudges by the High Court order dated 14.02.2002. The appellant No.1joined on 23.02.2002 and appellant No.2 joined on 24.02.2002. Theappellant No.1, before joining as Fast Track Judge, was working asAdditional Public Prosecutor since 1996. The appellant No.1 resignedfrom his post of Additional Public Prosecutor for joining as Fast TrackJudge. The appointment of appellant No.1 was extended upto 31.05.2011,on which date he was attaining 60 years of age. The appellant No.1was relieved from his assignment w.e.f. 31.05.2011 after putting in totalperiod of 9 years, 5 months and 5 days to his credit. The appellant No.2was relieved from services by the Registrar General of the High Courtby order dated 25.04.2012. Appellant No.2 thus had put in service ofmore than 10 years as Additional District Judge (Fast Track Court).The appellant No.1 having submitted representation for grant of pensionand other retiral benefits, an order dated 11.10.2012 was issued by theRegistrar General of High Court of Madras by which the claim ofappellant No.1 for grant of pension and other retiral benefits has been A

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Arejected. The appellant No.2 had also made a representation for grantof pension and other retiral benefits, which too was rejected. Writ PetitionNo. 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 dismissedby the common judgment dated 01.04.2015.

BCivil 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. Radhaand A.S. Hassina. Both the appellants were appointed by the sameappointment order dated 14.02.2002. Both the appellants joined onC23.02.2002. Both the appellants were relieved by order dated 25.04.2012of the Registrar General. After unsuccessfully challenging the relievingorder dated 25.04.2012 in the High Court, they also submittedrepresentation dated 14.08.2014 claiming pension and other retiralbenefits. The representations of the appellants were rejected on06.11.2014. The appellant No.1 filed Writ Petition No. 2756 of 2015Dwhereas appellant No.2 filed a Writ Petition No. 2755 of 2015. Both thewrit petitions have been dismissed on 01.04.2015.

Civil Appeal No. 8222 of 2018(arising out of SLP (C) No. 5467 of 2016)

E8. The appellant was also appointed by the same order dated14.02.2002, in pursuance of which, he joined on 24.02.2002. On28.10.2010, the appellant was relieved of his position as Additional DistrictJudge (Fast Track Court) w.e.f. 31.10.2010 on which date he wasattaining 60 years of age. The petitioner’s claim for pension was rejectedon 13.07.2011 by the High Court. Writ Petition No. 4276 of 2013 wasFfiled by the appellant praying for quashing the order dated 13.07.2011and praying for direction to pay pension and other retiral benefits, whichpetition has also been rejected on 01.04.2015.

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9. We have heard Shri A. Mariarputham, learned senior counselfor the appellants and learned counsel appearing for the High Court asGwell as the State of Tamil Nadu.

10. Learned senior counsel for the appellants contends that HighCourt committed error in rejecting the claim of the appellants for pension,gratuity and leave encashment on wrong premise that appellants werecontract appointees and they are not borne on pensionable establishment.HHe submits that appointment of appellants by direct recruitment from

Bar was on adhoc basis, which is clear from the advertisement invitingapplications for filling the post. He submits that appellants are not contractemployees and on that ground denial of retiral benefits is unsustainable.He further submits that Fast Track Court Judges were in the sameestablishment as the regular Additional District Judges. They being notin a separate or independent establishment, they were clearly borne onpensionable establishment. It is further submitted that ad hocappointments 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 isborne on pensionable establishment, hence there cannot be anydifferentiation with regard to establishment in which both ad hocappointees were borne. All the appellants have completed qualifyingservice of ten years under the Tamil Nadu Pension Rules, 1978(hereinafter referred to as “1978 Rules”) and were clearly entitled forpension and gratuity. It is further submitted that before High Court boththe claim of gratuity and leave encashment were also raised by theappellants but the High Court did not advert to the claim of gratuity orleave encashment. The appellant K. Anbazhagan was relieved on31.05.2011 after attaining the age of sixty years, hence he was clearlyentitled for superannuation benefits under the 1978 Rules. Learned seniorcounsel for the appellants further submits that all the Fast Track CourtJudges, who were appointed from bar were entitled to add additionalperiod to their service as per Rule 27 as well as in accordance withjudgment of this Court in Govt. of NCT of Delhi and Ors. Vs. All IndiaYoung Lawyers Association (Regd.) and Ors., (2009) 14 SCC 49. Itis contended that entitlement for gratuity is completion of five years ofservice and none of the appellants could have been denied the gratuity.It is further submitted that there was GPF deduction from the salary ofall the appellants, which also proves that they were part of thepensionable establishment and entitled for payment of pension.

11. With regard to appellant K. Anbazhagan, it is furthersubmitted that he has earlier worked as Additional Public Prosecutor,which was not a pensionable post. Rule 11(3) of 1978 Rules, providesthat 50% of service in a non-pensionable post would be added in hisservice. Thus, all the appellants have completed ten years of qualifyingservice.

12. Learned counsel appearing for the High Court supportingthe judgment and the order contends that the appellants were appointed AB

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Aon Fast Track Courts on contract basis. Fast Track Courts cannot besaid to have been created in pensionable establishment hence the writpetition of the appellants have rightly been dismissed. It is further submittedthat appellant’s claim for regularisation on post of Additional DistrictJudge had been rejected, which was upheld by the High Court vide itsjudgment dated 20.07.2012. The appellants functioned purely on adhocBbasis and were not appointed under the Tamil Nadu State Judicial Service(Cadre and Recruitment) Rules, 1995 nor were absorbed in any regularvacancy hence they are not eligible for any retiral benefits, which areavailable to those who were appointed by due recruitment process underthe above 1995 Rules. Tenure of the Fast Track Courts was initially forConly five years under the Eleventh Finance Commission and subsequentlyextended for another five years. Government of Tamil Nadu had furtherextended the tenure of courts for a period of one year upto 31.03.2012.Thereafter vide Government Order dated 26.08.2011, Government ofTamil Nadu had sanctioned retention of 49 Fast Track Courts in thecadre of District Judge functioning in the State of Tamil Nadu. TheDappellants having accepted the purely temporary nature of the post towhich they were appointed, they now cannot contend claiming all thebenefits available to those, who have been appointed to a substantivepost by a recruitment process.

13. Learned counsel appearing for the State of Tamil Nadu whileEadopting the submissions of the learned counsel for the High Court hassubmitted that appellants did not fulfill the conditions for grant of pensionand other retiral benefits under the 1978 Rules, hence their claim wasrightly rejected.

14. We have considered the submissions of the learned counselFfor the parties and have perused the records.

15. Before we proceed to examine the respective contentions ofthe parties, it is necessary to notice the relevant background facts forcreation of Fast Track Courts in the country and manner and nature ofappointments made.G

16. The Eleventh Finance Commission allocated funds for thepurpose of setting up of 1734 Courts in various States to deal with thelong pending cases particularly sessions cases. Consequent to allocationof funds by the Finance Commission, the State Governments wererequired to take necessary steps to establish such courts. FinanceHCommission had suggested that States may consider re-employment of retired judges for limited period for the disposal of pending cases. FastTrack Courts scheme was challenged in different High Courts primarilyon the ground that there was no constitutional sanction for employmentof retired judges and effective guidelines have not been issued. ThisCourt considered the controversy after transferring various writ petitionspending in the different High Courts under Article 139A of the Constitutionof India. The issues pertaining to Fast Track Courts were decided bythis Court in Brij Mohan Lal Vs. Union of India and Others, (2002)5 SCC 1. After noticing the funds allocated under the Eleventh FinanceCommission and other respective contentions, this Court issued variousdirections in Para 10. With regard to recruitment on Fast Track Courts,directions 1 to 4 were given in Para 10, which are as follows:-

“10. Keeping in view the laudable objectives with which the FastTract Courts Scheme has been conceived and introduced, wefeel the following directions, for the present, would be sufficientto take care of initial teething problems highlighted by the parties:

Directions by the Court:

1. The first preference for appointment of judges of the FastTrack Courts is to be given by ad-hoc promotions from amongsteligible judicial officers. While giving such promotion, the HighCourt shall follow the procedures in force in the matter ofpromotion to such posts in Superior/Higher Judicial Services.

2. The second preference in appointments to Fast Track Courtsshall be given to retired judges who have good service recordswith no adverse comments in their ACRs, so far as judicialacumen, reputation regarding honesty, integrity and characterare concerned. Those who were not given the benefit of twoyears extension of the age of superannuation, shall not beconsidered for appointment. It should be ensured that they satisfythe conditions laid down in Article 233(2) and 309 of theConstitution. The High Court concerned shall take a decisionwith regard to the minimum-maximum age of eligibility to ensurethat they are physically fit for the work in Fast Track Courts.

3. No Judicial Officer who was dismissed or removed orcompulsorily retired or made to seek retirement shall beconsidered for appointment under the Scheme. Judicial Officerswho have sought voluntary retirement after initiation of A

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ADepartmental proceedings/inquiry shall not be considered forappointment.

4. The third preference shall be given to members of the Bar fordirect appointment in these Courts. They should be preferably inthe age group of 35-45 years, so that they could aspire to continueBagainst the regular posts if the Fast Track Courts cease tofunction. The question of their continuance in service shall bereviewed periodically by the High Court based on theirperformance. They may be absorbed in regular vacancies, ifsubsequent recruitment takes place and their performance inthe Fast Track Courts is found satisfactory. For the initial selection,Cthe High Court shall adopt such methods of selection as arenormally followed for selection of members of the Bar as directrecruits to the Superior/Higher Judicial Services.

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17. One more direction, which needs to be noticed is DirectionNo. 16 where this Court directed that persons appointed under theScheme will be governed for service benefits by the rules and regulations,which are applicable to the members of the judicial services of the Stateof equivalent status. Direction No. 16 is as follows:- D

“16. Persons appointed under the Scheme shall be governed, forthe purpose of leave, reimbursement of medical expenses. TA/DA and conduct rules and such other service benefits, by therules and regulations which are applicable to the members of theJudicial Services of the State of equivalent status.”

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18. In Para 12, States were directed to ensure compliance inFfollowing words:- “12. Copies of the judgment be sent by the Registry of this Courtto each High Court and the State Government concerned forensuring compliance with our directions.”

G19.Even before the aforesaid directions were issued on06.05.2002, different High Courts in the country in pursuance of EleventhFinance Commission allocation proceeded to take steps for setting up ofthe Fast Track Courts. On the recommendations received from theHigh Court of Madras, the Government of Tamil Nadu granted sanctionsof post by two Government orders, for 30 posts (dated 03.08.2001) andH

19 posts (dated 18.12.2001) respectively. In the present appeals, weare concerned with appointment of the appellants, which were made on19 sanctioned posts, hence we need to notice the Government Orderdated 18.12.2001, by which 19 more Fast Track Courts were sanctioned.Para 3 of the Government Order dated 18.12.2011 provides for sanctionof posts which is as follows:- “3. The proposals of the High Court has been examined by theGovernment and they have decided to accept them. TheGovernment accordingly direct that as proposed by the HighCourt, 19 Fast Track Courts be constituted in the placesmentioned in the Annexure to this order. The Government alsoaccord sanction for the creation of the following posts temporarilyfor a period of one year from the date of appointment.

Sl. No.Designation of the postScale of pay 1.District Judge (Addl 15000-18600District Judgecadre)2.Translator5500-90003.Assistant4000-60004.Steno Typist4000-60005.Typist3200-49006.Office Assistants2550-3200

The Presiding Officers of these courts would be thepay drawing officers.”

20. After creation of the posts, High Court issued a Notificationdated 19.12.2001 inviting applications from the practicing advocates forbeing considered for the post of Additional District Judge for Fast TrackCourts on ad hoc basis. Notification dated 19.12.2001 reads as under:- “Notification No. 159/2001

Applications are invited from the practicing Advocates possessingthe following qualifications for being considered for the postAdditional District Judge (Fast Track Court) on Ad hoc basis fora period of 5 years. The post carries a Scale of Pay of Rs.15000-400-18600.

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A21.The appellants who were all practicing advocates and fulfillingthe eligibility as required in the notification submitted the applications.The High Court after calling the appellants to appear in interview sent aproposal to the Government recommending 15 names for appointmentas Additional District Judge. The State Government by order dated14.02.2002 appointed all the appellants. Paragraphs 4 and 5 of the orderBof 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 AdditionalDistrict and Sessions Judges (Fast Track Courts) on Ad hocBasis subject to the terms and conditions fixed by the High Court,Madras:- C

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1. K. Anbazhagan

2. G.K. Bharathi

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3. Bhagirathi R Angarajan

4. V.B. Chinnappan

5. R. Duraisamy

6. A. Devaki

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7. A.S. Hassina

8. V. Meganathan

9. S. Mani

10. P. Pandurangan

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11. K. Pandurangan

12. R. Radha

13. P.G. Rajagopal

14. M. Sekar &

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15. G. Savithri

5. The above Additional District and Sessions Judges will drawa pay of Rs.15,000/- in the scale of Rs.15000-400-18600- andother usual allowances.”

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22. We may first notice the reasons given by the High Court forrejecting the claim of pension of the appellants. The High Court hasmainly given following reasons for rejecting the claim:

1) The Fast Track Courts created under Eleventh FinanceCommission cannot be said to have been created in a ‘pensionableestablishment’.

2) Rule 11 of 1978 Rules, which provides for commencement ofqualifying service does not cover appointment on contractualbasis. The appointments of appellants were appointments oncontract basis, hence they are not covered by Rule 11 of 1978Rules.

3) Division Bench of High court in its judgment dated 20.07.2012rendered in Writ Petition No.13703-13705 of 2012 treated theappointment of appellants as contractual appointment.

23. The first issue to be answered is as to whether the appointmentsof appellants were appointment on ‘pensionable establishment’ or not.The expression ‘pensionable establishment’ is not defined under the 1978Rules. Rule 2 of 1978 Rules which provides for application of Rules isas follows:- “2. Application:- Save as otherwise provided in these rules,these Rules shall apply to all Government Servants appointedto Services and posts in connection with the affairs of theState which are borne on pensionable establishments,whether temporary or permanent, but shall not apply to-

a) Persons in causal and daily rated employment;

b) Persons paid from contingencies;

c) Persons employed on contract except when the contractprovides otherwise;

d) Members of the All-India Services;

e) Persons who are entitled to the benefits under theFactories Act, 1948 and the Employees Provident FundAct, 1952 excluding those who are governed by StatutoryServices Rules and belong to pensionable service.”

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A24.The expression ‘pensionable establishment’ has been usedin Rule 2. Rule 11 sub-Rule (3) also uses the expression ‘non-pensionableestablishment’. An indication in chapter 12 of the Rules i.e. Rule 84 isgiven that service paid for from a Local Fund does not qualify for pensionwhich indicates that services paid for from a Local Fund are services in‘non-pensionable establishment’. For the purposes of this case, we haveBto only consider as to whether the establishment where appellants wereappointed and working was a ‘pensionable establishment’ or ‘non-pensionable establishment’.

25. We have noticed above the Government Order dated18.12.2001 by which the State Government created nineteen Fast TrackCCourts of District Judges (Additional District Judges) in the pay scale ofRs.15000-18600. The appellants in their appointment Order dated14.02.2002 were also referred to as having been appointed as AdditionalDistrict and Sessions Judges (Fast Track Courts) on ad-hoc basis. Theappointment order further provided that the appellants as AdditionalDDistrict and Sessions Judges will draw a pay in the scale of Rs.15000-400-18600 and other usual allowances. The appellants were appointedin the Judicial establishment of the district and were part of theSubordinate Courts under the control of the High Court. Clause 9 of theGovernment Order dated 18.12.2001 read as follows:

E“9. The expenditure involved in the proposal shall be debitedto 2014.00 Administration of Justice -800-other Expenditure-II State Plan – JA Eleventh Finance Commission–Upgradation and Special Problem Grant setting up ofadditional courts for disposal of long pending cases 0.9Grants in Adl.03. Other grants for Specific SchemeF(D.P.C.No.2014.00 800 JA 0934)”

26. The payment of salary to the appellants were made fromsame sources by which other Additional District Judges and other JudicialOfficers of the State were being paid. There is no indication from any ofthe material produced before us that the appellants were appointed onGany different establishment than the Judicial establishment of the District.

27. We have noticed above that this Court in Brij Mohan LalVs. Union of India and others in paragraph 10 of the judgment hasdirected that persons appointed under the Scheme(Fast Track CourtsScheme) shall be governed, for the purposes of leave, reimbursement ofHmedical expenses, TA/DA and conduct rules and such other service benefits, by the rules and regulations which are applicable to the membersof the judicial services of the State of equivalent status.

28. By direction 10(16), this Court had directed the StateGovernments to ensure compliance, hence, the terms and conditions ofservice of appellants were same as those other judicial officers of theState as per Order of this Court. High Court in its judgment althoughobserved that Fast Track Courts cannot be said to have been created in‘pensionable establishment’ but said conclusion has been arrived withoutconsidering relevant materials and without giving any cogent reasons.We thus are of the view that appointment of appellants was in ‘pensionableestablishment’.

29. Now, we come to the second reason given by the High Courtthat the appointments of the appellants were contractual appointments.We have already noticed that the appointments of the appellants weremade against nineteen sanctioned posts of Additional District Judges byGovernment Order dated 18.12.2001. The notification which was issuedby the High Court inviting applications from practising Advocatesmentioned that applications are invited from practising Advocates forbeing considered for the post of Additional District Judge (Fast TrackCourt) on ad-hoc basis for a period of five years. It further mentionedthat the post carries a Scale of Pay of Rs.15000-400-18600. Thus, thenotification inviting applications never mentioned that it is a contractualappointment. Further, the appointment order issued to the appellants dated14.02.2002, in paragraph 3 stated as follows:

“3. Accordingly, the High Court, Madras, has called forapplications from eligible Advocates for filling up of 15 postsof Additional District Judges (Fast Track Courts), conductedinterview and sent proposals to Government recommending15 names of Advocates for appointment as Additional Districtand Sessions Judges(Fast Track Courts) on ad hoc basis.”

The appointment order thus clearly mentioned that the appointmentis on ad-hoc basis.

30. In service jurisprudence, the appointments are made byemployer with different nomenclature/characteristics. Appointments aremade both on permanent or temporary basis against permanent post ortemporary post. The appointment can also be made on ad-hoc basis onpermanent or temporary post. There is one common feature of A

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Aappointments of permanent, temporary or ad-hoc appointment i.e. thoseappointments are made against the post whether permanent or temporary.On the contrary, for contractual appointment, there is no requirement ofexistence of any post. A contractual appointment is not normally madeagainst a post. Further, contractual appointments are also not normallyon Pay Scale. On the mere fact that the advertisement as well as theBappointment was made initially for a period of five years, the nature ofappointment of the appellants cannot be termed as contractualappointment. When a Government servant is contemplated to hold acertain post for a limited period it is a Tenure Post.

31. The Fundamental Rules of the Tamil Nadu GovernmentCdefines Tenure Post. Fundamental Rule 9(30-A) defines the Tenure postin following manner:

“30-A. Tenure Post means a permanent post which anindividual Government servant may not hold for more thana limited period.”D

32. The fact that the advertisement limited the appointment fora period of five years only becausse the posts were contemplated forfive years only, the appointment of the appellants at best can be said as“Tenure appointment”. Although temporary, ad-hoc and contractualappointments are used in contradiction to a regular and permanentEappointment but between ad-hoc appointment and contract appointment,distinction is there in service jurisprudence and both the expressionscannot be interchangeably used. When the advertisement against whichthe appellants were appointed and the appointment order mentions theappointment as ad-hoc appointment, we cannot approve the view of theFHigh 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 20.07.2012in W.P.No.13703-13705/2012 held that the appointment of the petitionersGwas on contract basis, hence, the appointment has to be treated asappointment on contractual basis. The judgment of Division Bench ofMadras High court in above writ petition has been brought on record asAnnexure P-11. Three Writ Petitioners namely R.Radha, A.S.Hassinaand G.Savithri had filed three writ petitions challenging the Order dated25.04.2012 by which they were relieved from the post of Additional H

District Judge(Fast Track Courts). The writ petition was filed by thosewrit petitioners, questioning the Order dated 25.04.2012 and furtherseeking direction to consider the writ petitioners for absorption andregularization of their services as Additional District Judges. The Courtin the aforesaid writ petitions was thus concerned with the challenge toOrder relieving the appellants on 25.04.2012 and the question as towhether the appellants were entitled to be absorbed as Additional DistrictJudges. The Division Bench upheld that the discontinuation by the Highcourt on the ground that Fast Track Courts itself came to an end, theappellants could not have been allowed to continue. Further, the HighCourt did not accept the claim of the writ petitioners that they are entitledfor regularization and absorption. In the above context, the High Courtobserved in paragraph 16 that the discontinuation and relieving of theservices of the writ petitioners are not coming within the meaning ofdismissal, removal or termination. The High Court observed that the ad-hoc appointments given to the petitioners on contract basis werediscontinued and they were relieved without any stigma. The High courtin the above writ petitions was not concerned with the claim of theappellants with the nature of the appointment of the appellants for thepurposes of grant of pension. As noted above Rule 2 of 1978 Rulesexcludes certain categories from application of rules. One of suchcategory is “persons employed on contract except when the contractprovides otherwise”. Whether the case of the appellants was coveredby the excluded category under Rule 2(C) is a question which has arisenin these proceedings and was not subject matter of earlier writ petitionsdecided on 20.07.2012.

34. Thus, any observation made by the High Court whiledismissing the writ petitions on 20.07.2012 challenging their relievingorders and claim of absorption as regular District Judges has to be readin context of the aforesaid writ petitions and cannot be accepted as anyexpression regarding entitlement or dis-entitlement of the appellants withregard to claim of pension. We, thus, are of the view that High Courtinstead of referring to Rule 78 and especially Rule 2 did not advert to thenature of appointment in the above reference and followed the judgmentdated 20.07.2012 which was rendered in different context. In aboveview of the matter, all the three reasons given by the High Court fordismissing the writ petitions are unsustainable. But the question stillremains as to whether appellants are entitled for pension, gratuity andleave encashment as claimed by them in their writ petitions.

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A35.We thus now proceed to examine the above claim inaccordance with 1978 Rules, which governs the grant of pension andother relevant aspects.

36. Now, we revert to 1978 Rules to find out as to whether theappellants were entitled for grant of pension. We have already noticedBRule 2, which provides for application of the rules to all Governmentservants appointed to Services and posts in connection with the affairs ofthe State which are borne on pensionable establishments. We having alreadyheld that appellants were borne on pensionable establishment and they werenot employed on contract basis, Rule 2 is clearly applicable on them. Thereis another category which is excepted from application of the rule - RuleC2(e), i.e. “persons entitled to the benefit of a Contributory Provident Fund”.In the present case, the appellants were not covered by any ContributoryProvident Fund Scheme rather covered by General Provident Fund Scheme.The fact that appellants were covered by General Provident Fund Schemeis apparent from the materials brought on record. In Civil Appeal arising out Dof SLP (c) No. 24328-29 of 2015-Annexure P10 is a letter of AssistantRegistrar, High Court of Madras dated 17.10.2012 addressed to the PrincipalDistrict and Sessions Judge, Tiruvallur, which was on the subject “GPF-Final Closure applications of Selvi G. Savithri, the then Additional Districtand Sessions Judge, Tiruvallur, (FTC III, Tiruvallur)- Discontinued fromservice on 25.04.2012-Particulars called for-Regarding.” It is useful to extractEthe aforesaid letter, which is as follows:- “From Tmt. P. Sandhiya, M.A. B.Ed.,B.L.,Assistant Registrar (Per. Admn.)FHigh Court, Madras ToThe Principal District and Sessions Judge,Tiruvallur (w.e)

Sir,G

Sub: GPF-Final Closure applications of Selvi G. Savithri, the then IAdditional District and Sessions Judge, Tiruvallur, (FTC III,Tiruvallur)- Discontinued from service on 25.04.2012-Particularscalled for-Regarding.”

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Ref: Your letter D.No.4308/A/2012, dated 01.10.2012.

I am herewith enclosing a copy of the combined application andto request you to obtain the same in Triplicate from Selvi G. Savithri,then I Additional District and Sessions Judge Tiruvallur, nowdiscontinued from service on 25.04.2012, for sanction of GeneralProvident Fund, and the same may kindly be forwarded to the HighCourt, early, for taking further action in the matter.

Yours faithfully,

Sd/-

Asst. Registrar (Per.Admn.)”

37. The General Provident Fund (Tamil Nadu) Rules relates to allGovernment Servants, whether permanent, temporary of officiating otherthen re-employed servants, who shall join the Fund. Learned counsel forthe appellants has also brought on record alongwith additional writtensubmissions, details of pay drawn by Selvi G. Savithri for the period April,2011 to April, 2012, which indicate that General Provident Fund subscriptionwas Rs. 33,000/- in each month. Rule 3(o) defines ‘qualifying service’ to thefollowing effect:- “3(o) ‘qualifying service’ means permanent or officiating service(including temporary service under emergency provisions) renderedin a post included in a pensionable establishment.”

38. Rule 11(1) provides for commencement of qualifying service infollowing manner “11. Commencement of qualifying services. — (1) Subject to theprovisions of these rules, qualifying service of a Government servantshall commence from the date he takes charge of the post to whichhe is first appointed either substantively or in an officiating ortemporary capacity. In the case of a Government servant retiring onor after the first October 1969, temporary or officiating service inthe pensionable post whether rendered in a regular capacity or notshall count in full as qualifying services even if it is not followed byconfirmation.

NOTE.- In the case of the employees of the former PudukkottaiState and persons transferred from the former Travancore-Cochin State consequent on the reorganisation of States, temporary A

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or officiating service rendered in a regular capacity under the formerPudukkottai State or the former Travancore-Cochin State shall countin full for purposes of pension.

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11(2) Half of the service paid from contingencies shall be allowed tocount towards qualifying service for pension along with regular servicesubject to the following conditions:- B

(i) Service paid from contingencies shall be in a job involving wholetime employment and not part-time for a portion of the day.

(ii) Service paid from contingencies shall be in a type of work orjob for which regular posts could have been sanctioned, forexample Chowkidar.

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(iii) Service shall be for which the payment is made out on monthlyor daily rates computed and paid on a monthly basis and which,though not analogous to the regular scale of pay, shall bearsome relation in the matter of pay to those being paid for similarjobs being performed by staff in regular establishments.

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(iv) Service paid from contingencies shall be continuous andfollowed by absorption in regular employment without a break.

(v) Subject to the above conditions being fulfilled, the weightagefor past service paid from contingencies shall be limited to theperiod after the 1[st] January 1961 for which authentic recordsof service may be available.

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(vi) Pension or revised pension admissible as the case shall be paidFfrom, the 23r[d] June, 1988.]

11(3) Half of the service rendered by a Government servant undernon-pensionable establishment shall be counted for retirement benefitsalong with regular service under pensionable establishment subjectto the following conditions:- G

•Service under non-pensionable establishment shall be in a jobinvolving whole time employment.

•Service under non-pensionable establishment shall be on timescale of pay and H

•Service under non-pensionable establishment shall becontinuous and followed by absorption in pensionableestablishment without a break.

Provided that in respect of those who retired prior to the 14[th] February,1996, the retirement benefit or revised retirement benefit, as thecase may be, admissible to them shall be paid from the 14[th] February,1996 and there shall’ be no claim for arrears in any case, for theperiod up to the 13[th] February, 1996.]”

39. As per Rule 11(1) qualifying service of a Government servantshall commence from the date he takes charge of the post to which he isfirst appointed either substantively or in an officiating or temporary capacity.The appellants, who were appointed on ad hoc basis shall be clearly coveredby nature of appointment as contemplated in Rule 11(1). Rules 11(2) and11(3) also clearly provided that even half of the service paid fromcontingencies are allowed to count towards qualifying service and a half ofthe service rendered by a Government servant under non-pensionableestablishment is counted for retirement benefits along with regular servicewith certain conditions. The Scheme delineated by Rule 11 indicate a liberalscheme of recognition of service as pensionable and to accept the submissionof the respondent that ad hoc appointment of the appellants are not coveredby Rule 11 is to strain the meaning and extent of the Rule 11. Rule 21provides for forfeiture of service on dismissal or removal.

40. Chapter V of the Rules deals with “Classes of Pension andconditions governing their grant”. Rule 32 deals with “SuperannuationPension”. A Superannuation pension is granted to a Government servantentitled or compelled, by rule, to retire at a particular age. Rule 33 deals withRetiring pension, which provides that a retiring pension shall be granted to aGovernment servant who retires, or is retired, in advance of the age ofcompulsory retirement, in accordance with the provisions of Rule 42. Rule38(1) deals with Compensation pension. Rule 38(1) is as follows:- “38. Compensation pension:- (1) If a Government servant isselected for discharge owing to the abolition of his permanentpost, he shall, unless he is appointed to another post, the conditionsof which are deemed by the authority competent to discharge him tobe at least equal to those of his own, have the option - •of taking compensation pension to which he may he entitledfor the service he had rendered, or A

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834SUPREME COURT REPORTS

A•of accepting another appointment on such pay as may beoffered and continuing to count his previous service forpension.”

41. Rule 39 deals with Compulsory retirement pension. Sub-rule(1)of Rule 39 provides that a Government servant compulsorily retired fromBservice as a penalty may be granted by the authority competent to imposesuch penalty, pension or gratuity, or both at a rate not less than two-thirdsand not more than full compensation pension or gratuity or both admissible tohim on the date of his compulsory retirement. Rule 40 contemplates that aGovernment servant who is dismissed or removed from service althoughshall forfeit his pension and gratuity but the authority competent to dismiss orCremove him from service may, if the case is deserving of special consideration,sanction a compassionate allowance not exceeding two-thirds of pension orgratuity or both which would have been admissible to him if he had retired onmedical certificate. The scheme as delineated by Chapter V of the Rulesindicate that rules framing authorities have adopted a liberal and flexibleDapproach in sanctioning the pension. Even the Government servant, who isdismissed or removed, is also given a window to get compassionateallowance, if the case is deserving a special consideration. A Governmentservant, who retires voluntarily or is compulsorily retired, is entitled to aretiring 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 retirein the public interest shall be entitled to a retiring pension.”

42. Rule 43(1) deals with amount of pension, which is to the followingeffect:-F

“43(1) In the case of a Government servant retiring in accordancewith the provisions of these rules before completing qualifying serviceof ten years, the amount of service gratuity shall be calculated at theuniform rate of half-month’s emoluments for every completed sixmonthly period of service.”G43. Rule 43(2) provides that in the case of a Government servant,retiring in accordance with the provisions of these rules after completingqualifying service of not less than ten years, the amount of pension shall beas set out in the sub-rule(2). Thus, the qualifying service not less than tenyearsis a condition for grant of pension. At this juncture, let us revert backto the facts of the present case to find out as to whether all the appellantsH

have completed ten years of qualifying service? From the record before us,following is the service rendered by the appellants as Additional DistrictJudge (Fast Track Court):-

S. No.Name Date of Date of Total Period JoiningRelieving1.K. Anbazhagan-13.02.200231.05.201109 Years 05 Months 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 Appellant No.4 and 03 Days 5. P.G. Rajagopal 24.02.2002 31.10.2010 08 Years 08 Months AppellantNo.5and08 Days From the above, it is clear that apart form K. Anbazhagan and P.G.Rajagopal, other three appellants have completed ten years of qualifyingservice.

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 purposeof completing qualifying service. Rule 27 of the Rules is a clear answer tothe aforesaid issue. Both K. Anbazhagan and P.G. Rajagopal were relievedon A/N of 31.05.2011 and 31.10.2010 respectively, on attaining the age ofsixty years. Rule 27 provides for addition in their service qualifying forSuperannuation pension, the actual period not exceeding one-fourth of thelength of service or actual period by which his age at the time of recruitmentexceeds thirty years or a period of five years, whichever is less. Rule 27(1)which is relevant for the present case is as follows:- “27(1) Any person appointed to a service or post and who retiresfrom service on or after the 1' July 1960 may add to his servicequalifying for superannuation pension (but not for any other class ofpension) the actual period not exceeding one fourth of the length ofhis service or the actual period by which his age at the time ofrecruitment exceeds thirty years or a period of five years, whicheveris less, if the service or post is one- (a) for which post-graduate research or specialist qualification orexperience in scientific, technological or professional fields is A

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Aprescribed not merely as desirable but as obligatory qualification;and (b) for which the age of recruitment prescribed in the servicerules applicable to the service or post concerned is above thirtyyears.

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45. Rule 27(1) proviso specifically mentions that the age limit prescribedin sub-rule(!) above viz. thirty years shall be lowered to twenty seven yearsin so far as Judicial Officers who are directly recruited as Magistrates,District Munsifs and District Judges. The appellants are clearly covered byCthe proviso to sub-rule(1) of Rule 27. As per Rule 27(1), out of three periodsmentioned therein, whichever is lesser, has to be accepted. To the actualservice, the period of one-fourth of the length of the service of the aboveappellants is a lessor period, which needs to be added in their service. Byaddition of one-fourth period of the actual service of K.Anbazhagan andDP.G. Rajagopal, their qualifying service become more than ten years. Theabove appellants also thus have qualifying service of more than ten years,we thus conclude that all the appellants before us have qualifying service ofmore than ten years. Another relevant rule, which needs to be looked into isRule 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 theprovision of rule 34 apply and subject to the provisions of rule 9, 60and 69 a pension other than family pension shall become payablefrom the date on which a Government servant ceases to be borneon the establishment.”F

46. The crucial words in Rule 78 are “shall become payable from thedate on which a Government servant ceases to be borne on theestablishment.” In the present cases, dates on which appellants were relievedis the date from which they cease to be borne on the establishment. Twoappellants K.Anbazhagan and P.G. Rajagopal were relieved on account ofGattaining age of sixty years hence they were clearly entitled for superannuationpension. Other three appellants were relieved by the High Court due to thereasons that Fast Track Courts came to an end by converting the Fast TrackCourts into Permanent Courts of Additional District Judge by Governmentorder dated 26.08.2011. 49 Fast Track Courts, which were created underEleventh Finance Commission were retained on permanent basis as theH

post of District Judge/Additional District Judge. The central funding forFast Track Courts was ceased on 31.03.2011 but the State of Tamil Naduhas 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 till01.04.2012. 49 Fast Track Courts become the Permanent Courts of AdditionalDistrict Judges. The relieving of other three appellants on 25.04.2012 wason 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 theposts held by the above three appellants, w.e.f. 01.04.2012 and consequentlyrelieving of the aforesaid appellants, we are of the view that above threeappellants are also entitled for compensation pension. We, thus, concludethat K. Anbazhagan and P.G. Rajagopal are entitled for superannuationpension and other three appellants namely A.S. Hassina, R. Radha and SelviG. Savithri are entitled for compensation pension. High Court fell in error inrejecting their claim of pension.

47. With regard to compensation pension as contemplated byRule 38 there can be one aspect which also needs to be considered.Rule 38 sub-rule (1) contemplates discharge owing to the abolition of hispermanent post. It may be contended that Fast Track Courts as perorder dated 18.12.2001 were not the permanent posts and initially FastTrack Court Scheme was only for five years which subsequently gotextended to another five years and one year. The discontinuance of FastTrack Court cannot be treated as permanent abolition of post. The presentcase is a case where the appellants had allowed to work for 10 yearsand the post of Fast Track Court (Additional District Court) held by theappellants was discontinued with effect from 01.04.2012. It cannot besaid that relieving of the appellants was due to abolition of permanentpost but the basis for allowing compensation pension in the circumstancesas mentioned in sub-rule (1) of Rule 38 can be said to be very muchpresent in the present case. The appellants who worked for 10 yearsand were discontinued due to discontinuation of posts which were heldby them, the equity and justice demands that they should also be givencompensation pension. Thus, in the present case even if technicallyabolition of permanent post may not be involved but for doing completejustice, direction for giving compensation pension to the appellants is justand proper.

48. Learned senior counsel for the appellants has also placedreliance on the judgment of this Court in Mahesh Chandra Verma Vs.

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AThe State of Jharkhand and ors., 2018 (7) Scale 343. The questionwhich arose in the aforesaid appeals for consideration has been noted inthe paragraph 1 of the judgment which is to the following effect:

“1. The sole question, which arises for consideration in theseappeals is whether the services rendered by the appellants/BJudicial Officers as Fast Track Court Judges is liable to becounted for their pensionary and other benefits, the appellants having joined the regular judicial service thereafter.”

49. The appellants in the aforesaid case were directly recruitedfrom the Bar as Fast Track Court Judges. This Court in paragraphs 15,C17 and 18 has held the following:

“15. The appellants were not appointed to the Fast Track courtsjust at the whim and fancy of any person, but were the next inline on the merit list of a judicial recruitment process. They wereeither part of the select list, who could not find a place given thecadre strength, or those next in line in the select list. Had therebeen adequate cadre strength, the recruitment process wouldhave resulted in their appointment. We do believe that theseJudges have rendered services over a period of nine years andhave performed their role as Judges to the satisfaction, otherwisethere would have been no occasion for their appointment to theregular cadre strength. Not only that, they also went through asecond process for such recruitment. We believe that it is a matterof great regret that these appellants who have performed thefunctions of a Judge to the satisfaction of the competentauthorities should be deprived of their pension and retiral benefitsfor this period of service. The appellants were not pressing beforeus any case of seniority over any person who may have beenrecruited subsequently, nor for any other benefit. In fact, we hadmade it clear to the appellants that we are only examining theissue of giving the benefits of their service in the capacity ofFast Track court Judges to be counted towards their length ofservice for pensionary and retiral benefits. To deny the samewould be unjust and unfair to the appellants. In any case, keepingin mind the spirit of the directions made Under Article 142 of theConstitution of India in Brij Mohan Lal-[II] and in MaheshChandra Verma, the necessary corollary must also follow, ofgiving benefit of the period of service in Fast Track courts for D

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their pension and retiral benefits. The methodology of non-creation of adequate regular cadre posts and the consequentestablishment of Fast Track courts manned by the appellantscannot be used as a ruse to deny the dues of the appellants.

17. The position in respect of the appellants is really no differenton the principle enunciated, as there was need for a regular cadrestrength keeping in mind the inflow and pendency of cases. TheFast Track Court Scheme was brought in to deal with the exigencyand the appellants were appointed to the Fast Track courts andcontinued to work for almost a decade. They were part of theinitial select list/merit list for recruitment to the regular cadrestrength but were not high enough to be recruited in the existingstrength. Even at the stage of absorption in the regular cadrestrength, they had to go through a defined process in pursuanceof the judgment of this Court and have continued to workthereafter.

18. We are, thus, unhesitatingly and unequivocally of the viewthat all the appellants and Judicial Officers identically situatedare entitled to the benefit of the period of service rendered asFast Track court Judges to be counted for their length of servicein determination of their pension and retiral benefits.”

50. Although in the above case of Mahesh Chandra, Fast TrackCourt Judges were ultimately absorbed in the regular cadre strength butthe fact that period of services as Fast Track Court Judges had beendirected to be added for their pensionary benefits, does support the claimof the appellants in the present case.

51. Another judgment on which reliance was placed by theappellants is a judgment of this Court in Government of NCT of Delhiand others Vs. All India Young Lawyers Association (Registered)and another, (2009) 14 SCC 49. Learned counsel submits that thisCourt in the above case had directed for addition of 10 years or actualperiod of judicial service, whichever is less, as qualifying service to thedirect recruits to Delhi Higher Judicial Service. In the above case directrecruits to the Delhi Higher Judicial Service were under 25% quota.The appellants were regularly recruited in Delhi Higher Judicial Servicein accordance with Delhi Higher Judicial Service Rules, 1970. Directrecruits had filed writ petition before the High Court of Delhi seeking a A

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Amandamus to the appellants that the actual period of practice at the Barsubject to a maximum of fifteen years, should be added to the totalpensionable service while computing the pension. The High Court allowedthe writ petition while giving weightage of 15 years of practice or suchother number of years of practice at the Bar, whichever is less. TheGovernment of NCT of Delhi filed an appeal. It has been noted by thisBCourt in the aforesaid judgment that the High Court after taking decisionon the Administrative side wrote to the Delhi Government and it wasonly on 02.02.2006 by a letter, the Government has indicated that it wasagreeable to give weightage of seven years of practice. The above factis noted in paragraphs 6 and 7 which is to the following effect:C

“6. The High Court, on the administrative side, brought this factto the notice of the Government by writing a letter in the year1987. Though repeated reminders were sent to the Government,no decision was taken by the Government till the end of 2005and only on 2-2-2006 by a letter, the Government has indicatedDthat it was agreeable to give weightage of seven years of practiceat the Bar while computing the pension and other retiral benefitsfor direct recruits.

7. Learned counsel appearing for the State contended that thereason why the Government has agreed to give weightage ofEseven years’ practice at the Bar is that because in the case ofdirect recruitments to the Delhi Higher Judicial Service, a membershould have seven years’ practice at the Bar and that is why theGovernment thought it fit to give weightage of seven years.”

52. This Court while allowing the appeal partly, directed theFGovernment of NCT to give weightage of ten years of practice at theBar or such number of years of actual service, whichever is less. Theabove case is distinguishable due to two reasons. Firstly, the direct recruitswere Advocates appointed in accordance with Delhi Higher JudicialService Rules, 1970. Secondly, the Government of NCT of Delhi hasagreed for giving weightage of seven years in their service period. ItGwas the concession given by the Government of NCT of Delhi whichwas relied by this Court while issuing direction. Thus, benefit of theabove 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

“3(m) ‘pension’ includes gratuity except when the term pensionis used in contradistinction to gratuity but does not includedearness allowance.”

54. When the appellants are entitled for grant of pension, theyare obviously entitled for grant of gratuity. Rule 45 of the 1978 Rulesprovided that a Government servant, who has completed five years’qualifying service and has become eligible for service gratuity or pensionunder Rule 43, shall be granted gratuity. Rule 45 sub-rule (1)(a) is asfollows:

“45. Death-cum-Retirement Gratuity.-(1)(a)A Governmentservant, who has completed five years’ qualifying service andhas become eligible for service gratuity or pension under rule 43,shall, on his retirement be granted death-cum-retirement gratuityas in the table below for each completed six monthly period ofqualifying service, subject to a maximum of fifteen times, theemoluments:-”

55. We, thus, are of the view that appellants are also entitled forgratuity which may be computed in accordance with 1978 Rules.

56. Now remains the issue of leave encashment. The Tamil NaduLeave Rules, 1933 govern all aspects of the leave. Rule 7 deals withleave at the credit of a Government servant. Rule 7 also provides inrespect of the benefit of encashment of earned leave at the credit of aGovernment servant. Rule 7(i) and (ii) are as follows:

“7.(i) Leave at the credit of a Government servant in his leaveaccount, other than earned leave and leave on private affairsshall lapse on the date of retirement or on the date of terminationof the extension of service, as the case may be. The competentauthority (leave sanctioning authority) shall suo motudraw anddisburse the cash benefits of encashment of earned leave andleave on private affairs at the credit of the Government servantsin Groups B, C and D without formal sanction orders on the dateof retirement or on the date of termination of extension of service,as the case may be, or on the next working day, following thedate of retirement or the date of termination of extension ofservice, if the date of retirement or the date of termination ofextension of service happens to be a holiday. In respect of GroupA Officers, the Accountant General or Pay and Accounts Officer, A

B

C

D

E

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G

H

A

Aas the case may be, shall, suo motuissue the pay slips forencashment of earned leave and leave on private affairs, asaforesaid, at the credit of the Government servants without formalsanction orders, on the date of retirement or on the date oftermination of extension of service, as the case may be, or onthe next working day, following the date of retirement or theBdate of termination of extension of service if the date of retirementor the date of termination of extension of service happens to bea holiday.

(ii) The benefit of encashment of earned leave at the credit of aGovernment servant on the date of retirement or on the date ofCtermination of extension of service, as the case may be, shall besubject to a maximum of 240 days and shall be eligible for cashequivalent of full leave salary which shall be based on Pay,Dearness Allowance, House Rent Allowance and CityCompensatory Allowance for the entire period of leave at credit.”

D57.The appellants claimed earned leave to their credit on thedate when they retired/relieved. The appellants were clearly entitled forencashment of leave subject to a maximum of 240 days.

58. In view of the foregoing discussions, we allow these appealsin the following manner:

E

(1) The judgment of the High Court dated 01.04.2015 is set asideand the Civil Appeals filed by the appellants are allowed.

(2) The respondents are directed to sanction superannuationpension to appellants K. Anbazhagan and P.G. Rajagopal inaccordance with 1978 Rules.

F

(3) The respondents are directed to sanction compensationpension to the appellants, namely, Selvi G. Savithri, R. Radhaand A.S. Hassina.

(4) All the appellants are entitled for payment of gratuity inGaccordance with 1978 Rules.

(5) The respondents are also directed to permit encashment ofearned leave to the credit of the appellants subject to a maximumof 240 days.

H

K. ANBAZHAGAN & ANR. v. THE REGISTRAR GENERAL

HIGH COURT OF MADRAS & ANR. [ASHOK BHUSHAN, J.]

(6) All above retiral benefits be computed and paid to theappellants within a period of two months from today. In the eventpayments are made after two months, the appellants shall beentitled for such payments alongwith the simple interest @ 7%per annum.

(7) The parties shall bear their own costs.

Divya Pandey Appeals allowed.

A

B

C

D

E

F

G

H