IMPORTANT POINT
The main legal point established in the judgment is that the constitutionality of a relevant rule must be challenged for the principle of reading down to be applicable.

ORDER :

Sanjay V. Gangapurwala, J.

(Prayer: Appeal filed under Clause 15 of the Letters Patent against the order dated 11.09.2013 passed in W.P.No.14244 of 2013.)

1. A Division Bench of this Court, under its order dated 23.3.2022, observed that the matter may require re-consideration by a Full Bench. The Division Bench recorded the submission of learned Senior Counsel for the first respondent therein that the order of the Full Bench of this Court in the case of The Government of Tamil Nadu, rep. by Secretary to Government, Public Works Department, Secretariat, Chennai-600 009 and others v. R. Kaliyamoorthy, reported in (2019) 6 CTC 705 would require reconsideration on the following grounds :

(a) It fails to take into account G.O.Ms.No.6 and thus the Full Bench is possibly per incuriam; and

(b) It is contrary to the law laid down by the Honourable Supreme Court in the case of Prem Singh v. State of Uttar Pradesh and others reported in (2019) 10 SCC 516.

2. We have heard Mr. Haja Nazirudeen, learned Additional Advocate-General, Mr. S. Vijayakumar, Mr. A.R. Nixon, Mrs. N. Devi, Mr. B. Harikrishnan, Mr. R.S. Anandan, learned counsels for the appellants/writ petitioners in the respective appeals/writ petitions; Mr. R. Singgaravelan, learned Senior Counsel, Mr. P. Rajendran, Mr. M.R. Jothimanian, Mr. S. Prabhakaran, Ms. S. Girija, Mr. R. Prem Narayanan and Mrs. Hema Muralikrishnan, learned counsels appearing for the respondents in the respective appeals/writ petitions.

3. The employees, who are claiming pension, are the ones who had worked in a non-provincialised service, consolidated pay, honorarium or daily wages and/or absorbed into regular service after 1.4.2003.

4. The Full Bench of this Court in the case of R. Kaliyamoorthy, supra, had concluded as under :

“45. In the light of the above, we answer the reference as follows:

(i) Those who are freshly appointed on or after 01.04.2003 are not entitled to pension in view of proviso to Rule 2 of Tamil Nadu Pension Rules 1978 inserted by G.O.Ms.No.259 dated 06.08.2003.

(ii) Those government servants/employees appointed prior to 01.04.2003 whether on temporary or permanent basis in terms of Rule 10(a) (i) of Tamil Nadu State and Subordinate Service Rules will be entitled to get pension as per the Tamil Nadu Pension Rules, 1978.

(iii) In case, a government employee/servant had also rendered service in non provincialised service, or on consolidated pay or on honorarium or daily wage basis and if such services rendered shall be counted for the purpose of conferment of pensionary benefits.

(iv) Those government servants who were appointed in the aforesaid four categories before the cut off date and later appointed under Rule 10(a)(i) of Tamil Nadu State and Subordinate Service Rules before 01.04.2003 and absorbed into regular service after 01.04.2003 will not be entitled to count half of their past service for the purpose of determination of qualifying service for pension.

(v) Those government servants who were appointed in the aforesaid four categories before 01.04.2003 but were absorbed in regular service after 01.04.2003 will not be entitled to count half of their past service for the purpose of determination of qualifying service for pension.”

5. G.O.Ms.No.6, dated 6.1.2020 provides that the employees who had worked in the Nutritious Meals/Integrated Children Development Scheme and were promoted as teachers, supervisors Grade-2 and Multipurpose Health employees, 50% of their service under the Nutritious Meals Scheme and the Integrated Children Development Scheme under the consolidated pay will be taken into consideration for the calculation of pension. The said Government Order, nowhere, clarifies as to whether the same would be applicable to those who have been absorbed in regular service after 1.4.2003.

6. The Apex Court in the case of Prem Singh, supra, was considering the challenge to Rule 3(8) of the Uttar Pradesh Retirement Benefits Rules, 1961 [for short, “the Rules of 1961”] and Regulation 37