Case: K. ANBAZHAGAN AND ETC Vs. THE REGISTRAR GENERAL HIGH COURT OF MADRAS

s in these three appeals, who were appointed as Fast Track Judges from the Bar in the State of Tamil Nadu, consequent to creation of Fast Track Courts under the Eleventh Finance Commission Report of the Government of India. This Court vide its judgment dated 06.05.2002 in Brij Mohan LalOrs., (2002) 5 SCC 1     had issued various directions with regard to appointment and other matters pertaining to Fast Track Courts under Eleventh Finance Commission for setting up of 1734 Fast Track Courts in various States of the country4. After creation of Fast Track Courts under Eleventh Finance Commission, the Madras High Court vide its order dated 21.11.2001 issued an order pertaining terms and conditions for the Additional District Judges for the Fast Track Courts and the instructions thereon. The High Court vide its Notification dated 19.12.2001 invited applications from the practicing Advocates for the post of Additional District Judges (Fast Track Court) on ad hoc basis for a period of five years. The terms of the notification provided that applicants should have completed 45 years of age and shall not have reached 55 years as on 01.01.20025. The High Court vide its order dated 14.02.2002 appointed the, who all were advocates as Additional District and Sessions Judge (Fast Track Courts) on Ad hoc Basis. The initial ad hoc appointment of all thes was for five years, which was extended. All thes were subsequently relieved from their assignments. In the year 2011/2012,s also filed different writ petitions for their absorption as Additional District and Sessions Judge in the regular cadre, which writ petitions were dismissed by the High Court. After the orders rejecting the claim of thes for absorption in regular cadre of Additional District Judges, thes filed representations praying for grant of pension and other retiral benefits, which were rejected by the High Court. Second round of litigation was initiated by thes claiming retiral benefits including pension, gratuity, and leave encashment, which has been dismissed by the High Court by its common judgment dated 01.04.2015. Apart from above common facts regarding the, few individual facts pertaining to their period of working and some other facts need to be separately noted in each appeal, which are asCivil Appeal Nos. ___________ of 2018 (arising out of SLP (C) Nos. 24328-24329 of 2015)s namely, (i) K. Anbazhagan and (ii) G. Savithri in this appeal. Both were appointed as Ad hoc Fast Track Judges by the High Court order dated 14.02.2002. The1 joined on 23.02.2002 and2 joined on 24.02.2002. The, before joining as Fast Track Judge, was working as Additional Public Prosecutor since 1996. The1 resigned from his post of Additional Public Prosecutor for joining as Fast Track Judge. The appointment of1 was extended upto 31.05.2011, on which date he was attaining 60 years of age. The1 was relieved from his assignment w.e.f. 31.05.2011 after putting in total period of 9 years, 5 months and 5 days to his credit. The2 was relieved from services by the Registrar General of the High Court by order dated 25.04.2012. Appellant2 thus had put in service of more than 10 years as Additional District Judge (Fast Track Court). The1 having submitted representation for grant of pension and other retiral benefits, an order dated 11.10.2012 was issued by the Registrar General of High Court of Madras by which the claim of1 for grant of pension and other retiral benefits has been rejected. The2 had also made a representation for grant of pension and other retiral benefits, which too was rejected. Writ Petition No. 5187 of 2014 was filed by2 whereas Writ Petition No. 23532 of 2014 was filed by the, which has been dismissed by the common judgment dated 01.04.2015.Civil Appeal Nos. ___________ of 2018 (arising out of SLP (C) Nos. 26929-26932 of 2015)7. This appeal has been filed by twos namely R. Radha and A.S. Hassina. Both thes were appointed by the same appointment order dated 14.02.2002. Both thes joined on 23.02.2002. Both thes were relieved by order dated 25.04.2012 of the Registrar General. After unsuccessfully challenging the relieving order dated25.04.2012 in the High Court, they also submitted representation dated 14.08.2014 claiming pension and other retiral benefits. The representations of thes were rejected on 06.11.2014. The1 filed Writ Petition No. 2756 of 2015 whereas2 filed a Writ Petition No. 2755 of 2015. Both the writ petitions have been dismissed on 01.04.2015.Civil Appeal No. ___________ of 2018 (arising out of SLP (C) No. 5467 of 2016)t was also appointed by the same order dated 14.02.2002, in pursuance of which, he joined on 24.02.2002. On 28.10.2010, thet was relieved of his position as Additional District Judge (Fast Track Court) w.e.f. 31.10.2010 on which date he was attaining 60 years of age. Thes claim for pension was rejected on 13.07.2011 by the High Court. Writ Petition No. 4276 of 2013 was filed by thet praying for quashing the order dated 13.07.2011 and praying for direction to pay pension and other retiral benefits, which petition has also been rejected on 01.04.2015.

Reasoning:
22. We may first notice the reasons given by the High Court for rejecting the claim of pension of the. The High Court has mainly given following reasons for rejecting the claim:1) The Fast Track Courts created under Eleventh Finance Commission cannot be said to have been created in a pensionable establishment.2) Rule 11 of 1978 Rules, which provides for commencement of qualifying service does not cover appointment on contractual basis. The appointments ofs were appointments on contract basis, hence they are not covered by Rule 11 of 1978 Rules.3) Division Bench of High court in its judgment dated 20.07.2012 rendered in Writ Petition5 of 2012 treated the appointment ofs as contractual appointment25. We have noticed above the Government Order dated 18.12.2001 by which the State Government created nineteen Fast Track Courts of Districtl District Judges) in the pay scale of Rs.s in their appointment Order dated 14.02.2002 were also referred to as having been appointed as Additional District and Sessions Judges (Fast Track Courts) on ad-hoc basis. The appointment order further provided that thes as Additional District and Sessions Judges will draw a pay in the scale of0 and other usual allowances. Thes were appointed in the Judicial establishment of the district and were part of the Subordinate Courts under the control of the High Court. Clause 9 of the Government Order dated 18.12.2001 read as follows:9. The expenditure involved in the proposal shall be debited to 2014.00 Administration of Justice-800-other Expenditure-II State Plann and Special Problem Grant setting up of additional courts for disposal of long pending cases 0.9 Grants in Adl.. Other grants for Specific Scheme0 800 JA 0934)26. The payment of salary to thes were made from same sources by which other Additional District Judges and other Judicial Officers of the State were being paid. There is no indication from any of the material produced before us that thes were appointed on any different establishment than the Judicial establishment of the District27. We have noticed above that this Court in Brij Mohan Lal. Union of India andparagraph 10 of the judgment has directed that persons appointed under thet Track Courts Scheme) shall be governed, for the purposes of leave, reimbursement of medical expenses, TA/DA and conductand such other service benefits, by thes which are applicable to the members of the judicial services of the State of equivalent status28. By direction 10(16), this Court had directed the State Governments to ensure compliance, hence, the terms and conditions of service ofs were same as those other judicial officers of the State as per Order of this Court. High Court in its judgment although observed that Fast Track Courts cannot be said to have been created in pensionable establishment but said conclusion has been arrived without considering relevant materials and without giving any cogent reasons. We thus are of the view that appointment ofs was in pensionable establishment29. Now, we come to the second reason given by the High Court that the appointments of thes were contractual appointments. We have already noticed that the appointments of thes were made against nineteen sanctioned posts of Additional District Judges by Government Order dated 18.12.2001. The notification which was issued by the High Court inviting applications from practising Advocates mentioned that applications are invited from practising Advocates for being considered for the post of Additional District Judge (Fast Track Court) on ad-hoc basis for a period of five years. It further mentioned that the post carries a Scale of Pay of Rs.. Thus, the notification inviting applications never mentioned that it is a contractual appointment. Further, the appointment order issued to thes dated 14.02.2002, in paragraph 3 stated as follows:3. Accordingly, the High Court, Madras, has called for applications from eligible Advocates for filling up of 15 posts of Additional District Judges (Fast Track Courts), conducted interview and sent proposals to Government recommending 15 names of Advocates for appointment as Additional District and Sessionst Track Courts) on ad hoc basis.The appointment order thus clearly mentioned that the appointment is on ad-hoc basis30. 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 thes 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 Post31. The Fundamental Rules of the Tamil Nadu Government defines Tenure Post. Fundamental Rule 9(30-A) defines the Tenure post in following manner:30-A. Tenure Post means a permanent post which an individual Government servant may not hold for more than a limited period32. The fact that the advertisement limited the appointment for a period of five years onlye the posts were contemplated for five years only, the appointment of thes 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 thes were appointed and the appointment order mentions the appointment as ad-hoc appointment, we cannot approve the view of the High Court that the nature of the appointment of thes was only a contractual appointment33. Now, we come to the third reason given by the High Court. The Division Bench of the High Court vide its judgment dated2 held that the appointment of thes was on contract basis, hence, the appointment has to be treated as appointment on contractual basis. The judgment of Division Bench of Madras High court in above writ petition has been brought on record as Annexure P-11. Three Writ Petitioners namelyi had filed three writ petitions challenging the Order dated 25.04.2012 by which they were relieved from the post of Additional Districtt Track Courts). The writ petition was filed by those writ, questioning the Order dated 25.04.2012 and further seeking direction to consider the writs for absorption and regularization of their services as Additional District Judges. The Court in the aforesaid writ petitions was thus concerned with the challenge to Order relieving thes on 25.04.2012 and the question as to whether thes were entitled to be absorbed as Additional District Judges. The Division Bench upheld that the discontinuation by the High court on the ground that Fast Track Courts itself came to an end, thes could not have been allowed to continue. Further, the High Court did not accept the claim of the writs that they are entitled for regularization and absorption. In the above context, the High Court observed in paragraph 16 that the discontinuation and relieving of the services of the writs are not coming within the meaning of dismissal, removal or termination. The High Court observed that the ad-hoc appointments given to thes on contract basis were discontinued and they were relieved without any stigma. The High court in the above writ petitions was not concerned with the claim of thes with the nature of the appointment of thes for the purposes of grant of pension. As noted above Rule 2 of 1978 Rules excludes certain categories from application of rules. One of such category is persons employed on contract except when the contract provides otherwise. Whether the case of thes was covered by the excluded categoryRule 2(C) is a question which has arisen in these proceedings and was not subject matter of earlier writ petitions decided on 20.07.201234. Thus, any observation made by the High Court while dismissing the writ petitions on 20.07.2012 challenging their relieving orders and claim of absorption as regular District Judges has to be read in context of the aforesaid writ petitions and cannot be accepted as any expression regarding entitlement or dis-entitlement of thes with regard to claim of pension. We, thus, are of the view that High Court instead of referring to Rule 78 and especially Rule 2 did not advert to the nature of appointment in the above reference and followed the judgment dated 20.07.2012 which was rendered in different context. In above view of the matter, all the three reasons given by the High Court for dismissing the writ petitions are unsustainable. But the question still remains as to whethers are entitled for pension, gratuity and leave encashment as claimed by them in their writ petitions35. We thus now proceed to examine the above claim in accordance with 1978 Rules, which governs the grant of pension and other relevant aspects36. Now, we revert to 1978 Rules to find out as to whether thes were entitled for grant of pension. We have already noticed Rule 2, which provides for application of theto all Government servants appointed to Services and posts in connection with the affairs of the State which are borne on pensionable establishments. We having already held thats 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 ruleRule 2(e), i.e. persons entitled to the benefit of a Contributory Provident Fund. In the present case, thes were not covered by any Contributory Provident Fund Scheme rather covered by General Provident Fund Scheme. The fact thats were covered by General Provident Fund Scheme is apparent from the materials brought on record. In Civil Appeal arising out of SLP (c) No. 24328-29 of 2015-Annexure P10 is a letter of Assistant Registrar, High Court of Madras dated 17.10.2012 addressed to the Principal District and Sessions Judge, Tiruvallur, which was on the subject GPF-Final Closure applications of Selvi G. Savithri, the then Additional District and Sessions Judge, Tiruvallur, (FTC III, Tiruvallur)-Discontinued from service on 25.04.2012-Particulars called for-Regarding. It is useful to extract the aforesaid letter, which is asTmt. P. Sandhiya, M.A.Assistant Registrar (Per. Admn.)The Principal District and Sessions Judge,b: GPF-Final Closure applications of Selvi G. Savithri, the then I Additional District and Sessions Judge, Tiruvallur, (FTC III, Tiruvallur)-Discontinued from service on 25.04.2012-Particulars called for-Regarding.I am herewith enclosing a copy of the combined application and to request you to obtain the same in Triplicate from Selvi G. Savithri, then I Additional District and Sessions Judge Tiruvallur, now discontinued from service on 25.04.2012, for sanction of General Provident Fund, and the same may kindly be forwarded to the High Court, early, for taking further action in the matter.45. Rule 27(1) proviso specifically mentions that the age limit prescribed in) above viz. thirty years shall be lowered to twenty seven years in so far as Judicial Officers who are directly recruited as Magistrates, District Munsifs and District Judges. Thes are clearly covered by the proviso to) of Rule 27. As per Rule 27(1), out of three periods mentioned therein, whichever is lesser, has to be accepted. To the actual service, the period of one-fourth of the length of the service of the aboves is a lessor period, which needs to be added in their service. By addition of one-fourth period of the actual service ofn and P.G. Rajagopal, their qualifying service become more than ten years. The aboves also thus have qualifying service of more than ten years, we thus conclude that all thes before us have qualifying service of more than ten years. Another relevant rule, which needs to be looked into is Rule 78. Rule 78 provides for the date from which pension becomes payable. Rule 78(1) is as78(1) Except in the case of a Government servant to whom the provision of34 apply and subject to the provisions of9, 60 and 69 a pension other than family pension shall become payable from the date on which a Government servant ceases to be borne on the establishment46. 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 whichs were relieved is the date from which they cease to be borne on the establishment. Twon and P.G. Rajagopal were relieved on account of attaining age of sixty years hence they were clearly entitled for superannuation pension. Other threes 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 was ceased on 31.03.2011 but the State of Tamil Nadu has allowed to continue the said Courts for one more year w.e.f. 01.04.2011, i.e. upto 31.03.2012. The State Government has continued the post till 01.04.2012. 49 Fast Track Courts become the Permanent Courts of Additional District Judges. The relieving of other three