Madras High Court Directs: Option to Continue Old Pension Scheme Must Be Extended to All Persons Who Participated in Selection Prior To 1st April, 2003

Madras High Court Directs: Option to Continue Old Pension Scheme Must Be Extended to All Persons Who Participated in Selection Prior To 1st April, 2003

The Madras High Court has directed the option to continue the old pension scheme when the recruitment process was carried out before the Contributory Pension scheme came into effect, must be extended to all those persons who participated in the selection prior to the crucial date i.e., 1st April, 2003, however, got appointment letter after crucial date.

The single judge Justice GK Ilanthiraiyan noted that the new scheme was brought into force on 1 January, 2004 but the vacancy arose as early as on 9 November, 2002.

In the present case, a plea was filed by petitioner- B. Vallipavai, appointed as BT Assistant, who challenged the retrospective operation of the New Contributory Pension Scheme.

Vallipavai was appointed on April 17, 2003. She argued that the service conditions prevailing on the date the recruitment process commenced, could not be permitted to be altered to the disadvantage of the employees.

The petitioner also relied on the judgment passed by the Apex Court in the case Union of India vs. Tushar Ranjan Mohanty wherein the Court had observed that the Rules under Article 309 of the Constitution cannot be made retrospectively so as to nullify the right vested in a person under a Statute or under the Constitution.

The learned counsel for the petitioner had produced office memorandum issued by the Government of India on 3 March, 2023, considering the representation submitted from Government servants appointed on or after 1 October, 2004 requesting for extending the benefit of the pension scheme under Central Civil Services (Pension) Rules 1972 (now 2021) on the ground that their appointment was made against the post / vacancies advertised/notified for recruitment prior to notification for National Pension System.

The Petitioner counsel referred to judgments of High Courts and Central Administrative Tribunals wherein it was decided that in all cases where the Central Government civil employee has been appointed against a post or vacancy which was advertised / notified for recruitment / appointment prior to the date of notification for national pension scheme i.e. 22 December, 2003 and is covered under the National Pension System on joining service on or after 1 January, 2004, may be given a one-time option to be covered under the CCS (Pension) Rules, 1972 (now 2021).

The Court observed that the said option may be exercised by the Government servants latest by 31 August, 2023. The Court took note of the fact that, the Government of India had also called for list of pending cases of employees seeking conversion from contributory pension scheme to old pension scheme by a letter dated 19 February, 2023.

The Court placed reliance on the decision passed by the Supreme Court in the case of Railway Board and Ors vs. C.R.Rangadhamaiah and Ors. (1997) wherein the retrospective amendment/change affecting the vested or accrued rights of employees, adversely affecting their pension, was declared to be invalid.

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

In view of the above, the Court was of the considered opinion that the petitioner could not be deprived of the benefit of old pension scheme. Therefore, the impugned orders were not applicable to the petitioner.

The first and second respondents were directed to continue the petitioner under the Teacher’s Provident Fund (Family Pension Scheme).

Accordingly, the writ petition was allowed.