Employees regularized after 01.04.2003 cannot claim retrospective regularization to avail Old Pension Scheme benefits.

The respondents were engaged as temporary Daily Wage Section Writers in the Directorate of Government Examinations.

Pursuant to a Government Scheme for phased absorption of long-serving daily wage employees, their services were regularised in the sanctioned post of Record Clerk under the Pensionable Establishment with effect from 20.10.2006.

Seeking the benefit of the Old Pension Scheme, the respondents filed writ petitions claiming retrospective regularisation from the date of their initial engagement as Daily Wagers, or alternatively from the date of completion of 10 years of daily wage service.

The Writ Court allowed the petitions on 27.10.2021, relying on a Division Bench judgment in W.A.No.602 of 2011 dated 22.09.2011, which the Government had implemented in certain cases.

The respondents had accepted the 20.10.2006 regularisation date, continued in service, and retired; the writ petitions were filed belatedly thereafter.

1. Whether daily wage employees whose services were regularised/permanently absorbed after the cut-off date of 01.04.2003 are entitled to retrospective regularisation from the date of their temporary engagement, so as to claim pensionary benefits (including counting of 50% of daily wage service) under the Tamil Nadu Pension Rules, 1978 (Old Pension Scheme).

2. Whether the Court should follow the earlier Division Bench judgment in W.A.No.602 of 2011 — implemented by the Government under threat of contempt proceedings — or the binding Full Bench judgment in R. Kaliyamoorthy and the applicable Rules.

Proviso to Rule 2 of the Tamil Nadu Pension Rules, 1978 (inserted by G.O.Ms.No.259 dated 06.08.2003), which stipulates that the Rules "shall not apply to Government servants appointed on or after the 1st April 2003" to posts borne on pensionable establishment.

Rule 11(4) of the Tamil Nadu Pension Rules, 1978, which permits counting of non-provincialised/consolidated pay/honorarium/daily wage service only where it involved whole-time employment.

Full Bench decision in State of Tamil Nadu v. R. Kaliyamoorthy, (2019) 6 CTC 705, holding that where daily wage service was regularised before 01.04.2003, half of such service counts toward pension, but employees regularised/absorbed after the cut-off date are not entitled to count 50% of past service and are eligible only for the Contributory Pension Scheme.

Constitution Bench ruling in State of Karnataka v. Umadevi, (2006) 4 SCC 1, establishing that irregular/illegal appointments cannot be regularised and that regularisation must conform strictly to the applicable Service Rules.

The Court held that the respondents' regularisation w.e.f. 20.10.2006 was itself a concession extended via a Government Scheme, as they had never been recruited to the post of Record Clerk in accordance with the Service Rules; they therefore could not claim any further benefit of retrospective regularisation.

Since all respondents were borne on the pensionable establishment only from 20.10.2006 — well after the 01.04.2003 cut-off — the proviso to Rule 2 excluded them from the Old Pension Scheme, and under R. Kaliyamoorthy they were entitled only to the Contributory Pension Scheme, with no right to count 50% of their daily wage service.

The Court declined to follow the earlier Division Bench judgment because it had been rendered without adverting to the binding Full Bench ratio and had been implemented merely under threat of contempt; following it would constitute a wrong precedent and "open a Pandora's Box" of similar claims.

The Court held that the respondents, having accepted the regularisation date, served, retired, and filed belated writ petitions, could not turn around and challenge the date after superannuation.

The Writ Appeals were allowed, and the impugned common orders dated 27.10.2021 in W.P.Nos.22947, 22944, 22959, 22953, 22954, 22951 and 22956 of 2021 were set aside, with no order as to costs.