The option to continue the old pension scheme should be extended to those who participated in the selection process before the crucial date but received appointment letters after that date. Retrospective amendments affecting the vested or accrued rights of employees are invalid.

JUDGMENT

(Prayer: Writ Petition is filed under Article 226 of Constitution of India praying to issue Writ of Certiorarified Mandamus calling for the entire records connected with impugned order of New Contributory Provident Fund Scheme in GO.Ms.No.259, Finance (Pension) Department dated 06.08.2003 and subsequent GO.Ms.No.304 dated 27.05.2004 of the first respondent and quash the same insofar as the petitioner''s concerned, as not applicable to the petitioner because it cannot be given retrospective operation and direct the respondents to continue the Teachers Provident Fund (Family Pension) Scheme and Account No.3394152.)

This writ petition has been filed challenging the order of the first respondent thereby converted employees from old pension scheme to contributory pension scheme.

2. The fifth respondent school, namely Arulmigu Subramaniyaswamy Andavar Girls Higher Secondary School run by the temple through HR&CE Department. It is an aided institution and governed by the provisions of Tamilnadu Recognised Private School Regulations Act, 1973 and Rules, 1974. A vacancy was arose for the post of B.T.Teacher(Science) in the fifth respondent school on 09.11.2002 due to voluntary retirement of Tmt.Kanchana Mallika on 08.11.2002. Therefore, the fifth respondent sought permission to fill up the said post in the month of December 2002 on the recommendation of the fourth respondent dated 10.02.2003 to fill up the post of B.T.Assistant. On such permission, the fifth respondent had notified vacancy in the District Employment Exchange and requested a list of suitable candidates by letter dated 02.03.2003. The District Employment Exchange had furnished list of candidates to the fifth respondent school by letter dated 28.03.2003. Accordingly, the petitioner was directed to receive call letter from the fifth respondent for interview to be held on 10.04.2003.

2.1 The petitioner appeared for interview and on her merit and ability, the fifth respondent school selected her and appointed as B.T.Assistant by order dated 17.04.2003. She had joined in the service on the same day. Her appointment was approved by the fourth respondent by the proceedings dated 31.07.2004. But it was with effect from 17.04.2003. She has been enrolled for Teachers Provident Fund and she was given TPF No.339415. While being so, the fourth respondent by the proceedings had informed the petitioner that her appointment was made after 01.04.2003 and as such, as per the Government Order in GO(Ms).No.259 dated 06.08.2003, she had not been eligible for TPF scheme and directed to get new number under the Contributory Pension Scheme for deductions. Therefore, the petitioner made representation requesting to continue her in the old pension scheme.

3. The learned counsel for the petitioner would submit that the new contributory pension scheme was notified only by GO.Ms.No.304 dated 27.05.2004. The scheme was implemented with effect from 01.04.2003. The petitioner comes within the operative date, but before the date of Government Order. Therefore, in GO.Ms.No.259, Finance (Pension) Department dated 06.08.2003, Tamilnadu Pension Rules, 1978 was amended, according to which, Tamilnadu Pension Rules shall not apply to the Government servants on or after 01.04.2003. Therefore, the amendment itself is unconstitutional because it has given retrospective operation. The Government Order itself was issued only on 06.08.2003, but it was given effect from 01.04.2003. Therefore, the amendment itself had taken away the vested right of pension which is earned and accrued right of the petitioner retrospectively which is impermissible in law.

4. The third respondent find counter and stated that as per GO.Ms.No.259, Finance (Pension) Department dated 06.08.2003, Tamilnadu Pension Rules, 1978 was amended to the effect that Tamilnadu Pension Rules shall not apply to the Government servants appointed on or after 01.04.2003. It is purely State Government policy in respect of its employees. T