The delay in appointments, not attributable to the appellants, should not deprive them of their entitlement to claim membership in the Pension Scheme, 1978.

JUDGMENT

1. Delay condoned.

2. Leave granted.

3. The present appeals have been filed assailing the judgment dated 19th June, 2014 and later order dated 2nd November, 2018 passed in review application, whereby the appellants have been denied to become member of the Tamil Nadu Pension Rules, 1978.

4. The indisputed facts manifest from the record are that 53 vacancies of Assistant Public Prosecutor Grade II (hereinafter referred to as “APP Grade II”) came to be advertised by the Tamil Nadu Public Service Commission (hereinafter referred to as “the Commission”) by advertisement dated 9th November, 2001. After undertaking the process for selection, the final select list was sent by the Commission to the State Government, pursuant to which 51 persons, including those who are lower in order of merit to the appellants herein, were appointed on the post of APP Grade II by the Government by order dated 24th September, 2002.

5. So far as the present appellants are concerned, their names at the given point of time were withheld for want of further verification and clearance from the Commission. The Commission on verification granted clearance to both the appellants and intimated to the State Government by its communication dated 3rd September, 2002 (much before the appointments made by order dated 24th September, 2002). Despite all the formalities being completed, without any reasonable cause or justification, the State Government withheld the appointments of the appellants and finally both the appellants were appointed on the post of APP Grade II on 23rd August, 2005 and 23rd April, 2004 respectively.

6. In the meanwhile vide notification dated 6th August, 2003, an amendment was made under the Tamil Nadu Pension Rules, 1978 which came into force w.e.f. 1st April, 2003 and following proviso was added to Rule 2 :

“Provided that these rules shall not apply to Government Servants appointed on or after 1st April, 2003, to services and posts in connection with the affairs of the State which are borne on pensionable establishments, whether temporary or permanent.”

7. Accordingly, the State Government introduced a new Contributory Pension Scheme applicable to the Tamil Nadu State Government employees who are recruited on or after 1st April, 2003.

8. The grievance of the appellants is that advertisement was published by the Commission on 9th November, 2001 for the block year 1998-2002, pursuant to which after selection 51 candidates out of 53 (except the appellants) were appointed by order dated 24th September, 2002 and before these appointments could be made, the names of the appellants were also cleared by the Commission after due verification on 3rd September, 2002, but the State Government failed to include their names while appointments of other selected candidates, including those who are lower in order of merit, were made on 24th September, 2002 and without any reasonable cause/justification, their appointments were withheld for two/three years and finally they were appointed on 23rd August, 2005 and 23rd April, 2004 respectively and the delay in appointments in no manner could be attributable to the appellants and because of their later appointments, the Government has denied them to avail the benefit and become a member of the Scheme, 1978 which was applicable to the employees who were appointed on or before 1st April, 2003.

9. The counsel for the appellants further submits that in terms of their placement in order of merit in the select list despite later appointments in the year 2004 and 2005, still all benefits, including seniority, promotion, etc. were extended to the appellants. In the given circumstances, merely because there is delay in appointment would not deprive the appellants of their right to become a member of the Pension Scheme, 1978 claiming parity with the other candidates who had participated in the common process of selection held by the Commission pursuant to advertisement dated 9th September, 2001 and the High Court has com