Accrued legal rights to pension benefits cannot be denied due to administrative delays in appointment.

JUDGMENT :

(Judgment of the Court was authored by R.SURESH KUMAR, J.)

This intra-Court appeal has been directed against the common order passed by the Writ Court dated 01.03.2024 made in W.P.Nos.29880 and 19882 of 2022.

2. The Tamil Nadu Public Service Commission [for brevity, herein after referred to as "the TNPSC"] has issued a notification for Direct Recruitment to the post of Assistant Public Prosecutor (Grade II) for the year 1998-2002. Both the writ petitioners applied for the post of Assistant Public Prosecutor Grade II. Totally fifty three candidates were selected to the said post and the writ petitioners were placed in the reserved list. Thereafter, though three selected candidates failed to join and since vacancies arose, immediately, the reserve list has not been operated by giving appointment to the writ petitioners.

3. Therefore, the writ petitioners and another approached the Writ Court by filing W.P.Nos.6085, 9823 and 11234 of 2004. The Writ Court, by orders dated 27.04.2006 and 21.06.2006, allowed those writ petitions by giving directions to the Department to appoint the writ petitioners in the resultant vacancies. However, the said judgment of the Writ Court was challenged at the instance of the Department by way of an intra-Court appeal in W.A.No.891 to 893 of 2007 and these writ appeals also were dismissed. As against the same, an attempt has been made by the Government to prefer a Special Leave Petition, where also, they failed before the Hon'ble Supreme Court of India.

4. Only after loosing all these legal battle, the Government has come forward to issue G.O.(4D) No.104, Home (Courts - VI) Department dated 05.12.2007, thereby, appointment orders have been given to the writ petitioners to the post of Assistant Public Prosecutor Grade II for the Panel Year 1998-2002.

5. The writ petitioners joined into service and their seniority also were initially fixed based on the roster point and subsequently, after the judgment of the Hon'ble Supreme Court in the year 2013, the same has been fixed by way of merit list fixed by the TNPSC. When this being the position, the writ petitioners were not alloted with the GPF Numbers and they have been alloted only with the contributory pension, which is the New Pension Scheme, which has been implemented by virtue of G.O.No.259, Finance (Pension) Department dated 06.08.2003 from 01.04.2003.

6. Aggrieved over the non-inclusion in the Old Pension Scheme and inclusion in the New Pension Scheme, the writ petitioners have made requests after requests to the appellant Department. Despite that, since no fruitful answer has come from them, they approached this Court by filing W.P.Nos.19880 & 19882 of 2022, seeking a writ of mandamus to direct the respondents 1 and 2 therein to extend the benefits of Old Pension Scheme under the Tamil Nadu Pension Rules, 1978 to the writ petitioners. These writ petitions were allowed through the impugned common order dated 01.03.2024.

7. Aggrieved over the same, the present writ appeal has been directed at the instance of the appellant State.

8.1. Heard Mr.R.Neelakandan, learned Additional Advocate General appearing for the appellant State, who would submit that, even though the selection was over and appointments have been made, insofar as the selectees are concerned, prior to 01.04.2003, these writ petitioners have never been selected and merely because they have been in the reserve list, they cannot seek any right to be selected.

8.2. Assuming that there were some vacancies arising subsequently and based on the vacancies and pursuant to the orders passed by the Division Bench of this Court, which has been confirmed by the Hon'ble Supreme Court, if appointment orders were given to them in G.O.No.104 Home (Courts VI) Department dated 05.12.2007, that shall be treated only as an appointment from 05.12.2007, that is well after the cut-off date of 01.04.2003, which is from the date the new pension scheme has come into effect. Therefore, at no stretch of imagination