The Supreme Court today held that lawyers appointed as Additional District Judges (Fast Track Court) on ad hoc basis are eligible for pension and gratuity..The judgment was delivered by a Bench of Justices AK Sikri and Ashok Bhushan in a batch of appeals filed against a judgment of Madras High Court in the case of K Anbazhagan & Anr. v. Registrar General High Court of Madras & Anr. .Background.There were five appellants in the three appeals before the Supreme Court. The appellants were appointed as Fast Track Judges from the Bar in the State of Tamil Nadu, consequent to the creation of Fast Track Courts under the Eleventh Finance Commission Report of the Government of India..The initial ad hoc appointment of all the appellants was for five years. The same was, however, extended. All the appellants were subsequently relieved from their assignments..In the year 2011/2012, the appellants filed writ petitions for their absorption as Additional District and Sessions Judge in the regular cadre. Those petitions were dismissed by the High Court..The appellants then made representations praying for grant of pension and other retirement benefits, which were rejected by the High Court. This led to a second round of litigation initiated by the appellants claiming retirement benefits including pension, gratuity and leave encashment. These petitions were also dismissed by the High Court by its judgment dated April 1, 2015, leading to the current appeals in Supreme Court..Arguments by parties.Senior Advocate A Mariarputham, appearing for the appellants, contended that the High Court committed an error in rejecting the claim of the appellants for pension, gratuity and leave encashment on the wrong premise that appellants were contracted appointees and they are not borne on ‘pensionable establishment’..It was his argument 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 was further submitted that ad hoc appointments of Fast Track 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 the establishment in which both ad hoc appointees were borne..It was his submission that all the appellants had completed qualifying service of ten years under the Tamil Nadu Pension Rules, 1978 (1978 Rules) and were clearly entitled to pension and gratuity. It was further argued that before the High Court the claims of gratuity and leave encashment were also raised by the appellants but the High Court did not advert to the same..On the other hand, Counsel for the High Court contended that the appellants were appointed to Fast Track Courts on a contract basis. Fast Track Courts cannot be said to have been created in pensionable establishment, it was argued..It was further submitted that appellant’s claim for regularisation in the post of Additional District Judge had been rejected and the same was upheld by the High Court..The appellants functioned purely on ad hoc basis and were not appointed under the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 1995 nor were they absorbed in any regular vacancy. Hence, it was contended that they are not eligible for any retirement benefits, which are available to those who were appointed by due recruitment process under the 1995 Rules..Judgment.Issue 1: Pensionable Establishment.The first issue which the Supreme Court proceeded to address was whether the appointments of appellants were appointments on ‘pensionable establishment’ or not..The expression ‘pensionable establishment’ is not defined under the 1978 Rules. The expression ‘pensionable establishment’ has, however, been used in Rule 2. Rule 11 sub-Rule (3) also uses the expression ‘non-pensionable establishment’..Adverting to the government order by which the nineteen Fast Track Courts of District Judges were created and the order of appointment of appellants to the same, the court observed that 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 was made from the same sources by which other Additional District Judges and other Judicial Officers of the State were being paid, the Court observed..“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.”.The Court placed reliance on the judgment in Brij Mohan Lal Vs. Union of India wherein the Supreme Court had directed that persons appointed under the 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 benefits, by the rules and regulations which are applicable to the members of the judicial services of the State of equivalent status..The Court, therefore, held that appointment of appellants was on ‘pensionable establishment’..Issue 2: Contractual appointments.The contention of the High Court was that the appointments of appellants were on a contractual basis..The Court at the outset noted that the notification which was issued by the High Court inviting applications from practicing advocates mentioned that applications are invited from practicing Advocates for being considered for the post of Additional District Judge (Fast Track Court) on ad hoc basis for a period of five years. It further mentioned that the post carries a Scale of Pay of Rs.15,000-400-18,600. Thus, the notification inviting applications never mentioned that it was a contractual appointment, the Court noted..The Court then stated that in service jurisprudence, appointments are made by an employer with different nomenclature/characteristics. Appointments are made both on permanent or temporary basis against a permanent post or temporary post. Appointments can also be made on ad hoc basis on a permanent or temporary post..However, one common feature of appointments whether permanent, temporary or adhoc, was that those appointments are made against a post, whether permanent or temporary. On the contrary, for a contractual appointment, there is no requirement of the existence of any post, the Court ruled..“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.”.The Court, therefore, overturned the finding of the High Court in this regard..Issue 3: Dismissal of petitions seeking regularisation as Additional District Judges.Another reason given by the High Court while dismissing the petition for pension and retirement benefits was that writ petitions filed earlier by appellants seeking regularisation as Additional District Judges were dismissed by the High Court..The Supreme Court, however, stated that the first batch of petitions was concerned with the challenge to the order relieving the appellants and the question as to whether the appellants were entitled to be absorbed as Additional District Judges..The High Court in those writ petitions was not concerned with the claim of the appellants for the purpose of grant of pension. Thus, the Court ruled that any observation made by the High Court while dismissing the writ petitions challenging the relieving orders and claim of absorption as regular District Judges has to be read in the context of those petitions and cannot be accepted as any expression regarding entitlement or disentitlement of the appellants with regard to claim of pension..The Court then proceeded to consider the suitability of the appellants for pension and other retirement benefits under 1978 Rules, which governs the grant of pension and other relevant aspects..Conclusions.Setting aside the judgment of the Madras High Court, the Supreme Court arrived at the following conclusions:.The judgment of the High Court dated 01.04.2015 is set aside and the Civil Appeals filed by the appellants are allowed.The respondents are directed to sanction superannuation pension to appellants K Anbazhagan and PG Rajagopal in accordance with 1978 Rules.The respondents are directed to sanction compensation pension to the appellants, namely, Selvi G Savithri, R Radha and AS Hassina.All the appellants are entitled to payment of gratuity in accordance with 1978 Rules.The respondents are also directed to permit encashment of earned leave to the credit of the appellants subject to a maximum of 240 days.All above retiral benefits should be computed and paid to the appellants within a period of two months from today. In the event payments are made after two months, the appellants shall be entitled to such payments along with the simple interest @ 7% per annum..Read the judgment below.
The Supreme Court today held that lawyers appointed as Additional District Judges (Fast Track Court) on ad hoc basis are eligible for pension and gratuity..The judgment was delivered by a Bench of Justices AK Sikri and Ashok Bhushan in a batch of appeals filed against a judgment of Madras High Court in the case of K Anbazhagan & Anr. v. Registrar General High Court of Madras & Anr. .Background.There were five appellants in the three appeals before the Supreme Court. The appellants were appointed as Fast Track Judges from the Bar in the State of Tamil Nadu, consequent to the creation of Fast Track Courts under the Eleventh Finance Commission Report of the Government of India..The initial ad hoc appointment of all the appellants was for five years. The same was, however, extended. All the appellants were subsequently relieved from their assignments..In the year 2011/2012, the appellants filed writ petitions for their absorption as Additional District and Sessions Judge in the regular cadre. Those petitions were dismissed by the High Court..The appellants then made representations praying for grant of pension and other retirement benefits, which were rejected by the High Court. This led to a second round of litigation initiated by the appellants claiming retirement benefits including pension, gratuity and leave encashment. These petitions were also dismissed by the High Court by its judgment dated April 1, 2015, leading to the current appeals in Supreme Court..Arguments by parties.Senior Advocate A Mariarputham, appearing for the appellants, contended that the High Court committed an error in rejecting the claim of the appellants for pension, gratuity and leave encashment on the wrong premise that appellants were contracted appointees and they are not borne on ‘pensionable establishment’..It was his argument 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 was further submitted that ad hoc appointments of Fast Track 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 the establishment in which both ad hoc appointees were borne..It was his submission that all the appellants had completed qualifying service of ten years under the Tamil Nadu Pension Rules, 1978 (1978 Rules) and were clearly entitled to pension and gratuity. It was further argued that before the High Court the claims of gratuity and leave encashment were also raised by the appellants but the High Court did not advert to the same..On the other hand, Counsel for the High Court contended that the appellants were appointed to Fast Track Courts on a contract basis. Fast Track Courts cannot be said to have been created in pensionable establishment, it was argued..It was further submitted that appellant’s claim for regularisation in the post of Additional District Judge had been rejected and the same was upheld by the High Court..The appellants functioned purely on ad hoc basis and were not appointed under the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 1995 nor were they absorbed in any regular vacancy. Hence, it was contended that they are not eligible for any retirement benefits, which are available to those who were appointed by due recruitment process under the 1995 Rules..Judgment.Issue 1: Pensionable Establishment.The first issue which the Supreme Court proceeded to address was whether the appointments of appellants were appointments on ‘pensionable establishment’ or not..The expression ‘pensionable establishment’ is not defined under the 1978 Rules. The expression ‘pensionable establishment’ has, however, been used in Rule 2. Rule 11 sub-Rule (3) also uses the expression ‘non-pensionable establishment’..Adverting to the government order by which the nineteen Fast Track Courts of District Judges were created and the order of appointment of appellants to the same, the court observed that 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 was made from the same sources by which other Additional District Judges and other Judicial Officers of the State were being paid, the Court observed..“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.”.The Court placed reliance on the judgment in Brij Mohan Lal Vs. Union of India wherein the Supreme Court had directed that persons appointed under the 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 benefits, by the rules and regulations which are applicable to the members of the judicial services of the State of equivalent status..The Court, therefore, held that appointment of appellants was on ‘pensionable establishment’..Issue 2: Contractual appointments.The contention of the High Court was that the appointments of appellants were on a contractual basis..The Court at the outset noted that the notification which was issued by the High Court inviting applications from practicing advocates mentioned that applications are invited from practicing Advocates for being considered for the post of Additional District Judge (Fast Track Court) on ad hoc basis for a period of five years. It further mentioned that the post carries a Scale of Pay of Rs.15,000-400-18,600. Thus, the notification inviting applications never mentioned that it was a contractual appointment, the Court noted..The Court then stated that in service jurisprudence, appointments are made by an employer with different nomenclature/characteristics. Appointments are made both on permanent or temporary basis against a permanent post or temporary post. Appointments can also be made on ad hoc basis on a permanent or temporary post..However, one common feature of appointments whether permanent, temporary or adhoc, was that those appointments are made against a post, whether permanent or temporary. On the contrary, for a contractual appointment, there is no requirement of the existence of any post, the Court ruled..“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.”.The Court, therefore, overturned the finding of the High Court in this regard..Issue 3: Dismissal of petitions seeking regularisation as Additional District Judges.Another reason given by the High Court while dismissing the petition for pension and retirement benefits was that writ petitions filed earlier by appellants seeking regularisation as Additional District Judges were dismissed by the High Court..The Supreme Court, however, stated that the first batch of petitions was concerned with the challenge to the order relieving the appellants and the question as to whether the appellants were entitled to be absorbed as Additional District Judges..The High Court in those writ petitions was not concerned with the claim of the appellants for the purpose of grant of pension. Thus, the Court ruled that any observation made by the High Court while dismissing the writ petitions challenging the relieving orders and claim of absorption as regular District Judges has to be read in the context of those petitions and cannot be accepted as any expression regarding entitlement or disentitlement of the appellants with regard to claim of pension..The Court then proceeded to consider the suitability of the appellants for pension and other retirement benefits under 1978 Rules, which governs the grant of pension and other relevant aspects..Conclusions.Setting aside the judgment of the Madras High Court, the Supreme Court arrived at the following conclusions:.The judgment of the High Court dated 01.04.2015 is set aside and the Civil Appeals filed by the appellants are allowed.The respondents are directed to sanction superannuation pension to appellants K Anbazhagan and PG Rajagopal in accordance with 1978 Rules.The respondents are directed to sanction compensation pension to the appellants, namely, Selvi G Savithri, R Radha and AS Hassina.All the appellants are entitled to payment of gratuity in accordance with 1978 Rules.The respondents are also directed to permit encashment of earned leave to the credit of the appellants subject to a maximum of 240 days.All above retiral benefits should be computed and paid to the appellants within a period of two months from today. In the event payments are made after two months, the appellants shall be entitled to such payments along with the simple interest @ 7% per annum..Read the judgment below.
