The court ruled that entitlement to pension benefits is determined by the date of assuming duties, not the transfer of charge, and resignation without permission results in forfeiture of past service.

JUDGMENT :

S.SRIMATHY, J.

The present writ appeal is filed by the respondents in the writ petition against the order dated 04.06.2024 passed in W.P.(MD)No.18608 of 2021.

2. The writ petition was filed for issuance of a Writ of Certiorarified Mandamus, to quash the order, dated 23.08.2021 and consequently, to direct the respondents to include the petitioner under old pension scheme and disburse the retirement benefits of the petitioner with effect from 30.04.2016 including gratuity and other monetary benefits along with arrears within a stipulated time.

3. The writ petitioner was appointed as Block Resource Teacher on 26.03.2003 and joined the duty on 31.03.2003 at Theni, the joining report was forwarded, vide proceedings, dated 04.04.2003 and the service was regularized with effect from 31.03.2003, thereafter promoted as PG Assistant in the year 2008 and retired from service on 30.04.2016. The contention of the writ petitioner is that though GPF account was maintained and she was provided with general provident fund, but was not granted the pension and gratuity. Infact is entitled to be included in the old pension scheme, since she was appointed and regularized well before the cutoff date, i.e., 01.04.2003. But the 3^rd respondent in the writ petition, i.e., the Accountant General has returned the pension proposal on the ground that her pay was fixed only on 01.04.2003 and insisted for relaxation order. The petitioner relied on the order dated 30.09.2015 passed in W.A.(MD)No.1026 of 2015 wherein it is held that the new scheme is applicable to the employees appointed on or after 01.04.2003. Since the petitioner was appointment and regularisation on 31.03.2003, which is one day prior to the cutoff date of 01.04.2003, hence the petitioner is entitled to GPF. However, the respondents denied GPF, aggrieved over the petitioner submitted a representation, dated 28.09.2020 and filed W.P.(MD)No.15781 of 2020 and the Hon’ble Court directed the respondents to consider and pass order. Based on the same the respondent passed the order dated 23.08.2021, which is impugned in the writ petition, wherein the respondents had rejected the claim of the writ petitioner on the ground that previous service cannot be included as the petitioner had resigned from the said service, which would amount to forfeiture of earlier service. As far as date of appointment and joining in service on 31.03.2003 is concerned, the same was rejected by referring to FR 17(3) of the Fundamental Rules which provides that the pay and allowance attached to the tenure of a post with effect from the date on which the person assumes the duties of the post, if the charge is transferred before noon of that date. If the charge is afternoon, he commences to draw them from the following day. According to the petitioner both the reasons are misconceived and against the provisions of Tamil Nadu Pension Rules, 1978. Hence the petitioner challenged the same in the writ petition.

4. The respondents had filed counter stating that the petitioner was working as P.G. Assistant with effect from 12.11.1981 to 07.07.1988 in Fathima Girls Higher Secondary School, then from 08.07.1998 to 25.03.2002 the petitioner was not in service, then from 26.03.2002 to 31.03.2003 was on consolidated pay on contract basis, then resigned on 31.03.2003, thereafter appointed as Block Resource Teacher Educator by way of direct recruitment and joined duty on A.N. 31.03.2003. As she joined in afternoon on 31.03.2003 her service begins with effect from 01.04.2003, hence the petitioner cannot be treated as joined the service prior to 01.04.2003. The consolidated service on contract basis cannot be added since as per the conditions laid down at the time of appointment. Further she resigned from service on 31.03.2003, hence the past service was forfeited. Therefore, the petitioner is not entitled to GPF, hence prayed to dismiss the writ petition.

5. After considering the rival submission the Writ Court had allowed the petitio