# K. ANBAZHAGAN & ANR v. THE REGISTRAR GENERAL HIGH COURT OF MADRAS & ANR

- **Citation:** [2018] 10 S.C.R. 810
- **Court:** Supreme Court of India
- **Decided:** 2018-08-13
- **Case number:** Civil Appeal Nos. 8216-17 of 2018
- **Bench:** A. K. Sikri, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-anbazhagan-anr-v-the-registrar-general-high-court-of-madras-anr-32250
- **Pages:** 34

## Headnote

Service law - Judicial Service - Ad-hoc appointees, if entitled
to pension and other retiral benefits - Appellants appointed as
Additional District and Sessions Judge (Fast Track Courts) from
the Bar on ad-hoc basis - They were eventually relieved - Writ
petitions filed by appellants for grant of pension and other retiral
benefits, dismissed - Held: Appellants were appointed in the Judicial
establishment of the district and were part of the Subordinate Courts
under the control of the High Court - Payment of salary to the
appellants were made from same sources by which other Additional
District Judges and other Judicial Officers of the State were being
paid - There is no indication that the appellants were appointed on
any different establishment than the Judicial establishment of the
District - Appointment of appellants was in 'pensionable
establishment' - Notification inviting applications never mentioned
that it was a contractual appointment - Mere fact that the
advertisement as well as the appointment was made initially for a
period of five years, the nature of appointment of the appellants
cannot be termed as contractual appointment- In service
jurisprudence there is distinction between ad-hoc appointment and
contract appointment, and both the expressions cannot be used
interchangeably - In view of the fact that the advertisement limited
the appointment for a period of five years only, the appointment of
the appellants at best can be said as "Tenure appointment"- All the
appellants have qualifying service of more than ten years as required
for grant of pension - High Court fell in error in rejecting their claim
of pension - Further, appellants are also entitled for gratuity which may be
computed in accordance with 1978 Rules - Appellants were also
entitled for encashment of leave subject to a maximum of 240 days -
Judgment of the High Court set aside - Tamil Nadu Pension Rules, 1978 -
rr.2, 3, 11, 21, 42, 43, 45 and 78 - Tamil Nadu Leave Rules, 1933 - r.7.
810
[2018] 10 S.C.R. 810
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Service law - Judicial Service - Appointments - Contractual,
Ad-hoc and Tenure Appointments - Explained - Fundamental Rules
of the Tamil Nadu Government - Fundamental Rule 9(30-A).
Allowing the appeals, the Court
HELD: 1.1 The Eleventh Finance Commission allocated
funds for the purpose of setting up of 1734 Fast Track Courts in
various States to deal with the long pending cases particularly
sessions cases. Consequent to allocation of funds by the Finance
Commission, the State Governments were required to take
necessary steps to establish such courts. Fast Track Courts
scheme was challenged. The issues pertaining to Fast Track
Courts were decided by Supreme Court in Brij Mohan Lal case
wherein various directions were issued in Para 10. In Direction
No. 16, Supreme Court directed that persons appointed under
the Scheme will be governed for service benefits by the rules
and regulations, which are applicable to the members of the
judicial services of the State of equivalent status. [Paras 16, 17]
[820-G-H; 821-A, B; 822-D-E]
1.2 The appointments of the appellants were made against
nineteen sanctioned posts of Additional District Judges by
Government Order dated 18.12.2001. The appellants in their
appointment Order dated 14.02.2002 were referred to as having
been appointed as Additional District and Sessions Judges (Fast
Track Courts) on ad-hoc basis. The appointment order further
provided that the appellants as Additional District and Sessions
Judges will draw a pay in the scale of Rs.15000-400-18600 and
other usual allowances. The appellants were appointed in the
Judicial establishment of the district and were part of the
Subordinate Courts under the control of the High Court. The
payment of salary to the appellants were made from same sources
by which other Additional District Judges and other Judicial
Officers of the State were being paid. There is no indication from
any of the material produced that the appellants were ap

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SUPREME COURT REPORTS
[2018] 10 S.C.R.
K. ANBAZHAGAN & ANR.
v.
THE REGISTRAR GENERAL
HIGH COURT OF MADRAS & ANR.
(Civil Appeal Nos. 8216-17 of 2018)
AUGUST 13, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Service law - Judicial Service - Ad-hoc appointees, if entitled
to pension and other retiral benefits - Appellants appointed as
Additional District and Sessions Judge (Fast Track Courts) from
the Bar on ad-hoc basis - They were eventually relieved - Writ
petitions filed by appellants for grant of pension and other retiral
benefits, dismissed - Held: Appellants were appointed in the Judicial
establishment of the district and were part of the Subordinate Courts
under the control of the High Court - Payment of salary to the
appellants were made from same sources by which other Additional
District Judges and other Judicial Officers of the State were being
paid - There is no indication that the appellants were appointed on
any different establishment than the Judicial establishment of the
District - Appointment of appellants was in 'pensionable
establishment' - Notification inviting applications never mentioned
that it was a contractual appointment - Mere fact that the
advertisement as well as the appointment was made initially for a
period of five years, the nature of appointment of the appellants
cannot be termed as contractual appointment- In service
jurisprudence there is distinction between ad-hoc appointment and
contract appointment, and both the expressions cannot be used
interchangeably - In view of the fact that the advertisement limited
the appointment for a period of five years only, the appointment of
the appellants at best can be said as "Tenure appointment"- All the
appellants have qualifying service of more than ten years as required
for grant of pension - High Court fell in error in rejecting their claim
of pension - Further, appellants are also entitled for gratuity which may be
computed in accordance with 1978 Rules - Appellants were also
entitled for encashment of leave subject to a maximum of 240 days -
Judgment of the High Court set aside - Tamil Nadu Pension Rules, 1978 -
rr.2, 3, 11, 21, 42, 43, 45 and 78 - Tamil Nadu Leave Rules, 1933 - r.7.
810
[2018] 10 S.C.R. 810
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Service law - Judicial Service - Appointments - Contractual,
Ad-hoc and Tenure Appointments - Explained - Fundamental Rules
of the Tamil Nadu Government - Fundamental Rule 9(30-A).
Allowing the appeals, the Court
HELD: 1.1 The Eleventh Finance Commission allocated
funds for the purpose of setting up of 1734 Fast Track Courts in
various States to deal with the long pending cases particularly
sessions cases. Consequent to allocation of funds by the Finance
Commission, the State Governments were required to take
necessary steps to establish such courts. Fast Track Courts
scheme was challenged. The issues pertaining to Fast Track
Courts were decided by Supreme Court in Brij Mohan Lal case
wherein various directions were issued in Para 10. In Direction
No. 16, Supreme Court directed that persons appointed under
the Scheme will be governed for service benefits by the rules
and regulations, which are applicable to the members of the
judicial services of the State of equivalent status. [Paras 16, 17]
[820-G-H; 821-A, B; 822-D-E]
1.2 The appointments of the appellants were made against
nineteen sanctioned posts of Additional District Judges by
Government Order dated 18.12.2001. The appellants in their
appointment Order dated 14.02.2002 were referred to as having
been appointed as Additional District and Sessions Judges (Fast
Track Courts) on ad-hoc basis. The appointment order further
provided that the appellants as Additional District and Sessions
Judges will draw a pay in the scale of Rs.15000-400-18600 and
other usual allowances. The appellants were appointed in the
Judicial establishment of the district and were part of the
Subordinate Courts under the control of the High Court. The
payment of salary to the appellants were made from same sources
by which other Additional District Judges and other Judicial
Officers of the State were being paid. There is no indication from
any of the material produced that the appellants were appointed
on any different establishment than the Judicial establishment of
the District. The appointment of appellants was in 'pensionable
establishment'. The notification inviting applications never
mentioned that it is a contractual appointment. The appointment
order thus clearly mentioned that the appointment was on
K. ANBAZHAGAN & ANR. v. THE REGISTRAR GENERAL
HIGH COURT OF MADRAS & ANR.
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ad-hoc basis. In service jurisprudence, the appointments are made
by employer with different nomenclature/characteristics.
Appointments are made both on permanent or temporary basis
against permanent post or temporary post. The appointment can
also be made on ad-hoc basis on permanent or temporary post.
There is one common feature of appointments of permanent,
temporary or ad-hoc appointment i.e. those appointments are
made against the post whether permanent or temporary. On the
contrary, for contractual appointment, there is no requirement of
existence of any post. A contractual appointment is not normally
made against a post. Further, contractual appointments are also
not normally on Pay Scale. On the mere fact that the advertisement
as well as the appointment was made initially for a period of five
years, the nature of appointment of the appellants cannot be
termed as contractual appointment. When a Government servant
is contemplated to hold a certain post for a limited period it is a
Tenure Post. [Paras 25, 26, 28-30] [826-C-E; F-G; 827-B-C, E,
G-H; 828-A-C]
1.3 The Fundamental Rules of the Tamil Nadu Government
defines Tenure Post. Fundamental Rule 9(30-A) defines the
Tenure post. The fact that the advertisement limited the
appointment for a period of five years only because the posts
were contemplated for five years only, the appointment of the
appellants at best can be said as "Tenure appointment". Although
temporary, ad-hoc and contractual appointments are used in
contradiction to a regular and permanent appointment but between
ad-hoc appointment and contract appointment, distinction is there
in service jurisprudence and both the expressions cannot be
interchangeably used. When the advertisement against which the
appellants were appointed and the appointment order mentions
the appointment as ad-hoc appointment, the view of the High
Court that the nature of the appointment of the appellants was
only a contractual appointment cannot be approved. [Paras 31,
32] [828-C, D-F]
1.4 Rule 2, Tamil Nadu Pension Rules, 1978 provides for
application of the rules to all Government servants appointed to
Services and posts in connection with the affairs of the State which
are borne on pensionable establishments. Appellants were borne
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on pensionable establishment and they were not employed on
contract basis, Rule 2 is clearly applicable on them. There is another
category which is excepted from application of the rule - Rule 2(e),
i.e. "persons entitled to the benefit of a Contributory Provident
Fund". In the present case, the appellants were not covered by any
Contributory Provident Fund Scheme rather covered by General
Provident Fund Scheme. The fact that appellants were covered by
General Provident Fund Scheme is apparent from the materials
brought on record. [Para 36] [830-B-D]
1.5 Rule 3(o), 1978 Rules defines 'qualifying service'. Rule
11(1), 1978 Rules provides for commencement of qualifying service.
As per Rule 11(1) qualifying service of a Government servant shall
commence from the date he takes charge of the post to which he is
first appointed either substantively or in an officiating or temporary
capacity. The appellants, who were appointed on ad hoc basis shall
be clearly covered by nature of appointment as contemplated in Rule
11(1). The Scheme delineated by Rule 11 indicate a liberal scheme
of recognition of service as pensionable and to accept the submission
of the respondent that ad hoc appointment of the appellants are not
covered by Rule 11 is to strain the meaning and extent of the Rule
11. Rule 21, 1978 Rules provides for forfeiture of service on dismissal
or removal. Chapter V of the Rules deals with "Classes of Pension
and conditions governing their grant". Rule 32 deals with
"Superannuation Pension". A Superannuation pension is granted to
a Government servant entitled or compelled, by rule, to retire at a
particular age. Rule 38(1) deals with Compensation Pension. [Paras
37-40] [831-E-G; 833-C, D-F]
1.6 The scheme as delineated by Chapter V of the 1978 Rules
indicate that rules framing authorities have adopted a liberal and
flexible approach in sanctioning the pension. Even the Government
servant, who is dismissed or removed, is also given a window to get
compassionate allowance, if the case is deserving a special
consideration. A Government servant, who retires voluntarily or is
compulsorily retired, is entitled to a retiring pension by virtue of
Rule 42(1). Rule 43(1) deals with amount of pension. Rule 43(2)
provides that in the case of a Government servant, retiring in
accordance with the provisions of these rules after completing
qualifying service of not less than ten years, the amount of pension
shall be as set out in the sub-rule(2). Thus, the qualifying service
K. ANBAZHAGAN & ANR. v. THE REGISTRAR GENERAL
HIGH COURT OF MADRAS & ANR.
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not less than ten years is a condition for grant of pension. All the
appellants have qualifying service of more than ten years. [Paras
41-43, 45] [834-D-F, G-H; 835-A; 839-D-E]
1.7 Rule 78, 1978 Rules provides for the date from which
pension becomes payable. The crucial words in Rule 78 are "shall
become payable from the date on which a Government servant ceases
to be borne on the establishment." In the present cases, dates on
which appellants were relieved is the date from which they cease to
be borne on the establishment. Two appellants 'KA' and 'PGR' were
relieved on account of attaining age of sixty years hence, they were
clearly entitled for superannuation pension. Other three appellants
were relieved by the High Court due to the reasons that Fast Track
Courts came to an end by converting the Fast Track Courts into
Permanent Courts of Additional District Judge by Government order
dated 26.08.2011. 49 Fast Track Courts, which were created under
Eleventh Finance Commission were retained on permanent basis
as the post of District Judge/Additional District Judge. The central
funding for Fast Track Courts ceased on 31.03.2011 but the said
Courts were allowed for one more year w.e.f. 01.04.2011, i.e. upto
31.03.2012. The State Government has continued the post till
01.04.2012. The relieving of other three appellants, 'ASH', 'RR'
and 'SGS' on 25.04.2012 was on the ground that since Fast Track
Courts were discontinued, they were relieved from their services.
Rule 38 provides for a compensation pension. In view of the
discontinuance of the posts held by the said three appellants, w.e.f.
01.04.2012 and their consequent relieving, they are also entitled
for compensation pension. It is thus concluded that 'KA' and 'PGR'
are entitled for superannuation pension and other three appellants
namely 'ASH', 'RR' and 'SGS' are entitled for compensation pension.
High Court fell in error in rejecting their claim of pension. [Paras
45, 46] [836-E-F, G-H; 837-A-C]
1.8 Rule 38 sub-rule (1), 1978 Rules contemplates
discharge owing to the abolition of permanent post. The present
case is a case where the appellants were allowed to work for 10
years and the post of Fast Track Court (Additional District Court)
held by the appellants was discontinued with effect from
01.04.2012. It cannot be said that relieving of the appellants was
due to abolition of permanent post but the basis for allowing
compensation pension in the circumstances as mentioned in sub-
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rule (1) of Rule 38, 1978 Rules can be said to be very much present
in the present case. The appellants who worked for 10 years and
were discontinued due to discontinuation of posts which were
held by them, the equity and justice demands that they should
also be given compensation pension. Thus, in the present case
even if technically abolition of permanent post may not be
involved but for doing complete justice, direction for giving
compensation pension to the appellants is just and proper. [Paras
47] [837-D-G]
1.9 When the appellants are entitled for grant of pension,
they are obviously entitled for grant of gratuity. Rule 45 of the
1978 Rules provided that a Government servant, who has
completed five years' qualifying service and has become eligible
for service gratuity or pension under Rule 43, shall be granted
gratuity. Appellants are also entitled for gratuity which may be
computed in accordance with 1978 Rules. [Paras 54, 55] [841-B,
D]
1.10 The Tamil Nadu Leave Rules, 1933 govern all aspects
of the leave. Rule 7 deals with leave at the credit of a Government
servant. Rule 7 also provides in respect of the benefit of
encashment of earned leave at the credit of a Government servant.
The appellants claimed earned leave to their credit on the date
when they retired/relieved. The appellants were clearly entitled
for encashment of leave subject to a maximum of 240 days. The
judgment of the High Court is set aside. [Paras 56-58] [841-E;
842-D-E]
Govt. of NCT of Delhi and Ors. v. All India Young
Lawyers Association (Regd.) and Ors. (2009) 14 SCC
49 : [2009] 3 SCR 555 - distinguished.
Brij Mohan Lal v. Union of India & Ors. (2002) 5 SCC
1 : [2002] 3 SCR 810; Mahesh Chandra Verma v. The
State of Jharkhand and ors. 2018 (7) SCALE 343 -
relied on.
Case Law Reference
[2002] 3 SCR 810
relied on
Para 3
[2009] 3 SCR 555
distinguished
Para 10
2018 (7) SCALE 343
relied on
Para 16
K. ANBAZHAGAN & ANR. v. THE REGISTRAR GENERAL
HIGH COURT OF MADRAS & ANR.
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CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 82168217 of 2018
From the Judgment and Order dated 01.04.2015 of the High Court
of Judicature at Madras in Writ Petition Nos.5187 and 23532 of 2014
WITH
C.A. Nos. 8218-8221/2018 and 8222/2018
A. Mariarputham, Sr. Adv., Ms. Aruna Mathur, Avneesh Arputham,
Ms. Anuradha Arputham, Sumit Kumar, Hemant Kumar, M/s. Arputham
Aruna And Co., Anandh Kannan N., Kaushik Poddar, B. Balaji, Ms.
Meha Aggarwal, Yogesh Kanna, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. 1. Leave granted.
2. These three appeals have been filed against the common
judgment of Madras High Court dated 01.04.2015 by which judgment,
writ petitions filed by the appellants have been dismissed. The questions
of facts and law raised in the appeals being similar all the appeals have
been heard together and are being decided by this common judgment.
3. There are five appellants in these three appeals, who were
appointed as Fast Track Judges from the Bar in the State of Tamil Nadu,
consequent to creation of Fast Track Courts under the Eleventh Finance
Commission Report of the Government of India. This Court vide its
judgment dated 06.05.2002 in Brij Mohan Lal Vs. Union of India &
Ors., (2002) 5 SCC 1 had issued various directions with regard to
appointment and other matters pertaining to Fast Track Courts under
Eleventh Finance Commission for setting up of 1734 Fast Track Courts
in various States of the country.
4. After creation of Fast Track Courts under Eleventh Finance
Commission, the Madras High Court vide its order dated 21.11.2001
issued an order pertaining terms and conditions for the Additional District
Judges for the Fast Track Courts and the instructions thereon. The
High Court vide its Notification dated 19.12.2001 invited applications
from the practicing Advocates for the post of Additional District Judges
(Fast Track Court) on ad hoc basis for a period of five years. The
terms of the notification provided that applicants should have completed
45 years of age and shall not have reached 55 years as on 01.01.2002.
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5. The High Court vide its order dated 14.02.2002 appointed the
appellants, who all were advocates as Additional District and Sessions
Judge (Fast Track Courts) on Ad hoc Basis. The initial ad hoc
appointment of all the appellants was for five years, which was extended.
All the appellants were subsequently relieved from their assignments.
In the year 2011/2012, appellants also filed different writ petitions for
their absorption as Additional District and Sessions Judge in the regular
cadre, which writ petitions were dismissed by the High Court. After the
orders rejecting the claim of the appellants for absorption in regular cadre
of Additional District Judges, the appellants filed representations praying
for grant of pension and other retiral benefits, which were rejected by
the High Court. Second round of litigation was initiated by the appellants
claiming retiral benefits including pension, gratuity, and leave encashment,
which has been dismissed by the High Court by its common judgment
dated 01.04.2015. Apart from above common facts regarding the
appellants, few individual facts pertaining to their period of working and
some other facts need to be separately noted in each appeal, which are
as follows:-
Civil Appeal Nos. 8216-8217 of 2018
(arising out of SLP (C) Nos. 24328-24329 of 2015)
6.
There are two appellants namely, (i) K. Anbazhagan and (ii)
G. Savithri in this appeal. Both were appointed as Ad hoc Fast Track
Judges by the High Court order dated 14.02.2002. The appellant No.1
joined on 23.02.2002 and appellant No.2 joined on 24.02.2002. The
appellant No.1, before joining as Fast Track Judge, was working as
Additional Public Prosecutor since 1996. The appellant No.1 resigned
from his post of Additional Public Prosecutor for joining as Fast Track
Judge. The appointment of appellant No.1 was extended upto 31.05.2011,
on which date he was attaining 60 years of age. The appellant No.1
was relieved from his assignment w.e.f. 31.05.2011 after putting in total
period of 9 years, 5 months and 5 days to his credit. The appellant No.2
was relieved from services by the Registrar General of the High Court
by order dated 25.04.2012. Appellant No.2 thus had put in service of
more than 10 years as Additional District Judge (Fast Track Court).
The appellant No.1 having submitted representation for grant of pension
and other retiral benefits, an order dated 11.10.2012 was issued by the
Registrar General of High Court of Madras by which the claim of
appellant No.1 for grant of pension and other retiral benefits has been
K. ANBAZHAGAN & ANR. v. THE REGISTRAR GENERAL
HIGH COURT OF MADRAS & ANR. [ASHOK BHUSHAN, J.]
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rejected. The appellant No.2 had also made a representation for grant
of pension and other retiral benefits, which too was rejected. Writ Petition
No. 5187 of 2014 was filed by appellant No.2 whereas Writ Petition No.
23532 of 2014 was filed by the appellant No.2, which has been dismissed
by the common judgment dated 01.04.2015.
Civil Appeal Nos. 8218-8221 of 2018
(arising out of SLP (C) Nos. 26929-26932 of 2015)
7. This appeal has been filed by two appellants namely R. Radha
and A.S. Hassina. Both the appellants were appointed by the same
appointment order dated 14.02.2002. Both the appellants joined on
23.02.2002. Both the appellants were relieved by order dated 25.04.2012
of the Registrar General. After unsuccessfully challenging the relieving
order dated 25.04.2012 in the High Court, they also submitted
representation dated 14.08.2014 claiming pension and other retiral
benefits. The representations of the appellants were rejected on
06.11.2014. The appellant No.1 filed Writ Petition No. 2756 of 2015
whereas appellant No.2 filed a Writ Petition No. 2755 of 2015. Both the
writ petitions have been dismissed on 01.04.2015.
Civil Appeal No. 8222 of 2018
(arising out of SLP (C) No. 5467 of 2016)
8. The appellant was also appointed by the same order dated
14.02.2002, in pursuance of which, he joined on 24.02.2002. On
28.10.2010, the appellant was relieved of his position as Additional District
Judge (Fast Track Court) w.e.f. 31.10.2010 on which date he was
attaining 60 years of age. The petitioner's claim for pension was rejected
on 13.07.2011 by the High Court. Writ Petition No. 4276 of 2013 was
filed by the appellant praying for quashing the order dated 13.07.2011
and praying for direction to pay pension and other retiral benefits, which
petition has also been rejected on 01.04.2015.
9. We have heard Shri A. Mariarputham, learned senior counsel
for the appellants and learned counsel appearing for the High Court as
well as the State of Tamil Nadu.
10.
Learned senior counsel for the appellants contends that High
Court committed error in rejecting the claim of the appellants for pension,
gratuity and leave encashment on wrong premise that appellants were
contract appointees and they are not borne on pensionable establishment.
He submits that appointment of appellants by direct recruitment from
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Bar was on adhoc basis, which is clear from the advertisement inviting
applications for filling the post. He submits that appellants are not contract
employees and on that ground denial of retiral benefits is unsustainable.
He further submits that Fast Track Court Judges were in the same
establishment as the regular Additional District Judges. They being not
in a separate or independent establishment, they were clearly borne on
pensionable establishment. It is further submitted that ad hoc
appointments of Fast Tract Courts were made by both the sources i.e.
by promotion of judges from lower division as well as from the bar.
There cannot be any dispute that cadre of Additional District Judges is
borne on pensionable establishment, hence there cannot be any
differentiation with regard to establishment in which both ad hoc
appointees were borne. All the appellants have completed qualifying
service of ten years under the Tamil Nadu Pension Rules, 1978
(hereinafter referred to as "1978 Rules") and were clearly entitled for
pension and gratuity. It is further submitted that before High Court both
the claim of gratuity and leave encashment were also raised by the
appellants but the High Court did not advert to the claim of gratuity or
leave encashment. The appellant K. Anbazhagan was relieved on
31.05.2011 after attaining the age of sixty years, hence he was clearly
entitled for superannuation benefits under the 1978 Rules. Learned senior
counsel for the appellants further submits that all the Fast Track Court
Judges, who were appointed from bar were entitled to add additional
period to their service as per Rule 27 as well as in accordance with
judgment of this Court in Govt. of NCT of Delhi and Ors. Vs. All India
Young Lawyers Association (Regd.) and Ors., (2009) 14 SCC 49. It
is contended that entitlement for gratuity is completion of five years of
service and none of the appellants could have been denied the gratuity.
It is further submitted that there was GPF deduction from the salary of
all the appellants, which also proves that they were part of the
pensionable establishment and entitled for payment of pension.
11.
With regard to appellant K. Anbazhagan, it is further
submitted that he has earlier worked as Additional Public Prosecutor,
which was not a pensionable post. Rule 11(3) of 1978 Rules, provides
that 50% of service in a non-pensionable post would be added in his
service. Thus, all the appellants have completed ten years of qualifying
service.
12.
Learned counsel appearing for the High Court supporting
the judgment and the order contends that the appellants were appointed
K. ANBAZHAGAN & ANR. v. THE REGISTRAR GENERAL
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on Fast Track Courts on contract basis. Fast Track Courts cannot be
said to have been created in pensionable establishment hence the writ
petition of the appellants have rightly been dismissed. It is further submitted
that appellant's claim for regularisation on post of Additional District
Judge had been rejected, which was upheld by the High Court vide its
judgment dated 20.07.2012. The appellants functioned purely on adhoc
basis and were not appointed under the Tamil Nadu State Judicial Service
(Cadre and Recruitment) Rules, 1995 nor were absorbed in any regular
vacancy hence they are not eligible for any retiral benefits, which are
available to those who were appointed by due recruitment process under
the above 1995 Rules. Tenure of the Fast Track Courts was initially for
only five years under the Eleventh Finance Commission and subsequently
extended for another five years. Government of Tamil Nadu had further
extended the tenure of courts for a period of one year upto 31.03.2012.
Thereafter vide Government Order dated 26.08.2011, Government of
Tamil Nadu had sanctioned retention of 49 Fast Track Courts in the
cadre of District Judge functioning in the State of Tamil Nadu. The
appellants having accepted the purely temporary nature of the post to
which they were appointed, they now cannot contend claiming all the
benefits available to those, who have been appointed to a substantive
post by a recruitment process.
13. Learned counsel appearing for the State of Tamil Nadu while
adopting the submissions of the learned counsel for the High Court has
submitted that appellants did not fulfill the conditions for grant of pension
and other retiral benefits under the 1978 Rules, hence their claim was
rightly rejected.
14. We have considered the submissions of the learned counsel
for the parties and have perused the records.
15. Before we proceed to examine the respective contentions of
the parties, it is necessary to notice the relevant background facts for
creation of Fast Track Courts in the country and manner and nature of
appointments made.
16. The Eleventh Finance Commission allocated funds for the
purpose of setting up of 1734 Courts in various States to deal with the
long pending cases particularly sessions cases. Consequent to allocation
of funds by the Finance Commission, the State Governments were
required to take necessary steps to establish such courts. Finance
Commission had suggested that States may consider re-employment of
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retired judges for limited period for the disposal of pending cases. Fast
Track Courts scheme was challenged in different High Courts primarily
on the ground that there was no constitutional sanction for employment
of retired judges and effective guidelines have not been issued. This
Court considered the controversy after transferring various writ petitions
pending in the different High Courts under Article 139A of the Constitution
of India. The issues pertaining to Fast Track Courts were decided by
this Court in Brij Mohan Lal Vs. Union of India and Others, (2002)
5 SCC 1. After noticing the funds allocated under the Eleventh Finance
Commission and other respective contentions, this Court issued various
directions in Para 10. With regard to recruitment on Fast Track Courts,
directions 1 to 4 were given in Para 10, which are as follows:-
"10. Keeping in view the laudable objectives with which the Fast
Tract Courts Scheme has been conceived and introduced, we
feel the following directions, for the present, would be sufficient
to take care of initial teething problems highlighted by the parties:
Directions by the Court:
1. The first preference for appointment of judges of the Fast
Track Courts is to be given by ad-hoc promotions from amongst
eligible judicial officers. While giving such promotion, the High
Court shall follow the procedures in force in the matter of
promotion to such posts in Superior/Higher Judicial Services.
2. The second preference in appointments to Fast Track Courts
shall be given to retired judges who have good service records
with no adverse comments in their ACRs, so far as judicial
acumen, reputation regarding honesty, integrity and character
are concerned. Those who were not given the benefit of two
years extension of the age of superannuation, shall not be
considered for appointment. It should be ensured that they satisfy
the conditions laid down in Article 233(2) and 309 of the
Constitution. The High Court concerned shall take a decision
with regard to the minimum-maximum age of eligibility to ensure
that they are physically fit for the work in Fast Track Courts.
3. No Judicial Officer who was dismissed or removed or
compulsorily retired or made to seek retirement shall be
considered for appointment under the Scheme. Judicial Officers
who have sought voluntary retirement after initiation of
K. ANBAZHAGAN & ANR. v. THE REGISTRAR GENERAL
HIGH COURT OF MADRAS & ANR. [ASHOK BHUSHAN, J.]
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Departmental proceedings/inquiry shall not be considered for
appointment.
4. The third preference shall be given to members of the Bar for
direct appointment in these Courts. They should be preferably in
the age group of 35-45 years, so that they could aspire to continue
against the regular posts if the Fast Track Courts cease to
function. The question of their continuance in service shall be
reviewed periodically by the High Court based on their
performance. They may be absorbed in regular vacancies, if
subsequent recruitment takes place and their performance in
the Fast Track Courts is found satisfactory. For the initial selection,
the High Court shall adopt such methods of selection as are
normally followed for selection of members of the Bar as direct
recruits to the Superior/Higher Judicial Services.
Xxxxxxxxxxxxxxx"
17. One more direction, which needs to be noticed is Direction
No. 16 where this Court directed that persons appointed under the
Scheme will be governed for service benefits by the rules and regulations,
which are applicable to the members of the judicial services of the State
of equivalent status. Direction No. 16 is as follows:-
"16. Persons appointed under the Scheme shall be governed, for
the purpose of leave, reimbursement of medical expenses. TA/
DA and conduct rules and such other service benefits, by the
rules and regulations which are applicable to the members of the
Judicial Services of the State of equivalent status."
18.
In Para 12, States were directed to ensure compliance in
following words:-
"12. Copies of the judgment be sent by the Registry of this Court
to each High Court and the State Government concerned for
ensuring compliance with our directions."
19.
Even before the aforesaid directions were issued on
06.05.2002, different High Courts in the country in pursuance of Eleventh
Finance Commission allocation proceeded to take steps for setting up of
the Fast Track Courts. On the recommendations received from the
High Court of Madras, the Government of Tamil Nadu granted sanctions
of post by two Government orders, for 30 posts (dated 03.08.2001) and
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19 posts (dated 18.12.2001) respectively. In the present appeals, we
are concerned with appointment of the appellants, which were made on
19 sanctioned posts, hence we need to notice the Government Order
dated 18.12.2001, by which 19 more Fast Track Courts were sanctioned.
Para 3 of the Government Order dated 18.12.2011 provides for sanction
of posts which is as follows:-
"3. The proposals of the High Court has been examined by the
Government and they have decided to accept them. The
Government accordingly direct that as proposed by the High
Court, 19 Fast Track Courts be constituted in the places
mentioned in the Annexure to this order. The Government also
accord sanction for the creation of the following posts temporarily
for a period of one year from the date of appointment.
The Presiding Officers of these courts would be the
pay drawing officers."
20.
After creation of the posts, High Court issued a Notification
dated 19.12.2001 inviting applications from the practicing advocates for
being considered for the post of Additional District Judge for Fast Track
Courts on ad hoc basis. Notification dated 19.12.2001 reads as under:-
"Notification No. 159/2001
Applications are invited from the practicing Advocates possessing
the following qualifications for being considered for the post
Additional District Judge (Fast Track Court) on Ad hoc basis for
a period of 5 years. The post carries a Scale of Pay of Rs.15000400-18600.
xxxxxxxxxxxxxxxxxxxx"
Sl. No.
Designation of the post
Scale of pay
1.
District Judge (Addl
District Judge cadre)
15000-18600
2.
Translator
5500-9000
3.
Assistant
4000-6000
4.
Steno Typist
4000-6000
5.
Typist
3200-4900
6.
Office Assistants
2550-3200
K. ANBAZHAGAN & ANR. v. THE REGISTRAR GENERAL
HIGH COURT OF MADRAS & ANR. [ASHOK BHUSHAN, J.]
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21.
The appellants who were all practicing advocates and fulfilling
the eligibility as required in the notification submitted the applications.
The High Court after calling the appellants to appear in interview sent a
proposal to the Government recommending 15 names for appointment
as Additional District Judge. The State Government by order dated
14.02.2002 appointed all the appellants. Paragraphs 4 and 5 of the order
of the State Government dated 14.02.2002 is as follows:-
"4. The Government in consultation with the High Court Madras,
hereby appoint the following 15 (Fifteen) Advocates as Additional
District and Sessions Judges (Fast Track Courts) on Ad hoc
Basis subject to the terms and conditions fixed by the High Court,
Madras:-
Thiru/Tmt/Selvi
1.
K. Anbazhagan
2.
G.K. Bharathi
3.
Bhagirathi R Angarajan
4.
V.B. Chinnappan
5.
R. Duraisamy
6.
A. Devaki
7.
A.S. Hassina
8.
V. Meganathan
9.
S. Mani
10.
P. Pandurangan
11.
K. Pandurangan
12.
R. Radha
13.
P.G. Rajagopal
14.
M. Sekar &
15.
G. Savithri
5.
The above Additional District and Sessions Judges will draw
a pay of Rs.15,000/- in the scale of Rs.15000-400-18600- and
other usual allowances."
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22.
We may first notice the reasons given by the High Court for
rejecting the claim of pension of the appellants. The High Court has
mainly given following reasons for rejecting the claim:
1) The Fast Track Courts created under Eleventh Finance
Commission cannot be said to have been created in a 'pensionable
establishment'.
2) Rule 11 of 1978 Rules, which provides for commencement of
qualifying service does not cover appointment on contractual
basis. The appointments of appellants were appointments on
contract basis, hence they are not covered by Rule 11 of 1978
Rules.
3) Division Bench of High court in its judgment dated 20.07.2012
rendered in Writ Petition No.13703-13705 of 2012 treated the
appointment of appellants as contractual appointment.
23. The first issue to be answered is as to whether the appointments
of appellants were appointment on 'pensionable establishment' or not.
The expression 'pensionable establishment' is not defined under the 1978
Rules. Rule 2 of 1978 Rules which provides for application of Rules is
as follows:-
"2. Application:- Save as otherwise provided in these rules,
these Rules shall apply to all Government Servants appointed
to Services and posts in connection with the affairs of the
State which are borne on pensionable establishments,
whether temporary or permanent, but shall not apply toa) Persons in causal and daily rated employment;
b) Persons paid from contingencies;
c) Persons employed on contract except when the contract
provides otherwise;
d) Members of the All-India Services;
e) Persons who are entitled to the benefits under the
Factories Act, 1948 and the Employees Provident Fund
Act, 1952 excluding those who are governed by Statutory
Services Rules and belong to pensionable service."
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24.
The expression 'pensionable establishment' has been used
in Rule 2. Rule 11 sub-Rule (3) also uses the expression 'non-pensionable
establishment'. An indication in chapter 12 of the Rules i.e. Rule 84 is
given that service paid for from a Local Fund does not qualify for pension
which indicates that services paid for from a Local Fund are services in
'non-pensionable establishment'. For the purposes of this case, we have
to only consider as to whether the establishment where appellants were
appointed and working was a 'pensionable establishment' or 'nonpensionable establishment'.
25.
We have noticed above the Government Order dated
18.12.2001 by which the State Government created nineteen Fast Track
Courts of District Judges (Additional District Judges) in the pay scale of
Rs.15000-18600. The appellants in their appointment Order dated
14.02.2002 were also referred to as having been appointed as Additional
District and Sessions Judges (Fast Track Courts) on ad-hoc basis. The
appointment order further provided that the appellants as Additional
District and Sessions Judges will draw a pay in the scale of Rs.15000400-18600 and other usual allowances. The appellants were appointed
in the Judicial establishment of the district and were part of the
Subordinate Courts under the control of the High Court. Clause 9 of the
Government Order dated 18.12.2001 read as follows:
"9. The expenditure involved in the proposal shall be debited
to 2014.00 Administration of Justice -800-other ExpenditureII State Plan - JA Eleventh Finance CommissionUpgradation and Special Problem Grant setting up of
additional courts for disposal of long pending cases 0.9
Grants in Adl.03. Other grants for Specific Scheme
(D.P.C.No.2014.00 800 JA 0934)"
26.
The payment of salary to the appellants were made from
same sources by which other Additional District Judges and other Judicial
Officers of the State were being paid. There is no indication from any of
the material produced before us that the appellants were appointed on
any different establishment than the Judicial establishment of the District.
27.
We have noticed above that this Court in Brij Mohan Lal
Vs. Union of India and others in paragraph 10 of the judgment has
directed that persons appointed under the Scheme(Fast Track Courts
Scheme) shall be governed, for the purposes of leave, reimbursement of
medical expenses, TA/DA and conduct rules and such other service
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benefits, by the rules and regulations which are applicable to the members
of the judicial services of the State of equivalent status.
28.
By direction 10(16), this Court had directed the State
Governments to ensure compliance, hence, the terms and conditions of
service of appellants were same as those other judicial officers of the
State as per Order of this Court. High Court in its judgment although
observed that Fast Track Courts cannot be said to have been created in
'pensionable establishment' but said conclusion has been arrived without
considering relevant materials and without giving any cogent reasons.
We thus are of the view that appointment of appellants was in 'pensionable
establishment'.
29.
Now, we come to the second reason given by the High Court
that the appointments of the appellants were contractual appointments.
We have already noticed that the appointments of the appellants were
made against nineteen sanctioned posts of Additional District Judges by
Government Order dated 18.12.2001.