(Prayer: Writ Petitions are filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, to call for the records of the second respondent, the Deputy Commissioner of Commercial Taxes, Tiruvannamalai in respect of the proceedings passed in Na.Ka.A2.6480/2018 dated 22.11.2018 and quash the same and direct the respondents to consider the period of service of 16 years for pension within a period of one month.)

1. Heard the learned counsel for the petitioner and the learned Government Advocate for the respondents and perused the records.

2. The case of the petitioner in brief is that she having SSLC educational qualification with type writing qualification both in Tamil and English and is registered with the employment exchange in the year 1981; that her name was sponsored for typist post (temporary) in Commercial Taxes Department, Tiruvannamalai; and that she was appointed as temporary typist vide proceedings dated 11.01.1990; that she worked as typist at various offices of the Commercial Taxes Department from the date of joining for a period of six years and three months; and that thereafter, she was appointed as temporary typist in the Judicial Department at Judicial Magistrate Court – I, Tiruvannamalai and served as typist for 2 years 4 months and 7 days.

3. It is the further case of the petitioner that she had applied for regular post of typist through Tamil Nadu Public Service Commission through proper channel and got selected as typist and posted in the Commercial Taxes Department after being relieved from the Judicial Department in the afternoon on 22.12.2010; that on joining the Commercial Taxes Department on 23.12.2010, she had worked as regular typist till she retired from service on 31.05.2018; and that since, she had joined the Commercial Tax Department on 11.01.1990 worked in the Commercial Taxes Department, she is eligible for being governed by the Old Pension Scheme by considering her employment with the Commercial Tax Department.

4. The petitioner further contended that since, she had worked in a temporary capacity initially in the Commercial Taxes Department and thereafter in the Judicial Department, the period of service rendered on a temporary basis would be eligible for being counted as qualifying service for the grant of pension, and also that on account of she having joined initially in the Commercial Taxes Department on 11.01.1990, she is eligible to be granted pension under the Old Pension Scheme as per Rule 3 (o) of the Tamil Nadu Pension Rule.

5. Petitioner further contended that since, the respondents have placed her under the New Pension Scheme by taking her date of joining as 23.12.2010, she had approached the second respondent and submitted her representation dated 29.10.2018, seeking for her past service in the Commercial Taxes Department to be reckoned for the purpose of being covered by the Old Pension Scheme; and that the second respondent by his communication dated 22.11.2018 rejected the said representation stating that temporary service period from 17.01.1990 to 13.11.1995(in Commercial Tax Department) and 16.07.2007 to 22.10.2010 (in Judicial Department) cannot be considered and the service of the petitioner from 23.12.2010 to 31.05.2018 alone is eligible for pension, and that too under the New Pension Scheme introduced with effect from 01.04.2004.

6. Petitioner further contended that the aforesaid rejection by the second respondent is contrary to Rule 11 (1) of the Tamil Nadu Pension Rules (in short as “Pension Rules”) as her services have commenced on 11.01.1990 when she was first appointed in a temporary post in the Commercial Taxes Department as a typist.

7. Contending as above, the petitioner seeks for quashing of the impugned proceedings dated 22.11.2018.

8. Counter affidavit on behalf of the second respondent is filed.

9. The second respondent, by the counter affidavit, contended that the petitioner was appointed as a temporary typist; that her services were terminated vide proceedings dated 13.11.1995 for want of vacancy; that the petitioner thereafter was appointed to the regular post of typist in the Department through TNPSC from 23.12.2010 to 13.01.2018; that the petitioner, after her ouster from the post of temporary typist on 13.11.1995, did not take up any employment immediately; that she served as a typist under Rule 10 (a) (i) of the Tamil Nadu State Subordinate Service Rules in the Judicial Magistrate Court – I, Tiruvannamalai from 16.07.2007 to 22.12.2010; and thereafter on getting selected through TNPSC, she joined the service in the Commercial Taxes Department on 23.12.2010 and worked as such till 31.05.2018.

10. The respondents, by the counter affidavit, further contended that since, the petitioner had served the respondent’s department from 23.12.2010 to 31.05.2018, the aforesaid period was considered for pension, on her retirement on 31.05.2018 and settled her terminal benefits and made the payment.

11. The respondents, by the counter affidavit, further contended that the representation of the petitioner submitted on 29.10.2018 to consider her under the Old Pension Scheme cannot be considered for the reason that she had joined the Commercial Taxes Department in the year 1990 as a temporary typist and was ousted from service for want of vacancy on 13.11.1995 and from 1995 to 2007 i.e., till she joined in the Judicial Department, there was an interruption in her services, and thus the petitioner being in temporary service cannot claim as eligible, for being covered under the Old Pension Scheme.

12. The respondents, by the counter affidavit, further contended that as per the Tamil Nadu Pension Rules also, the petitioner is not entitled to for counting her services, as there has been break in service resulting in forfeiture of past service, thereby disentitling her from claiming the benefit of continuity of service.

13. The respondents, by the counter affidavit, further contended that since, the initial appointment of the petitioner in the year 1990 in the Commercial Taxes Department is not a regular or permanent employment and was appointed purely on temporary basis, the petitioner is not entitled for grant any relief.

14. Contending as above, the learned counsel for the respondents seek for dismissal of the writ petition.

15. I have taken note of the respective contentions as urged.

16. The short point that arises for consideration in this writ petition is as to whether the service of the petitioner from 11.01.1990 when she had joined in the Commercial Taxes Department as a temporary typist and ousted on 13.11.1995 and again after a gap of 12 years having joining the Judicial Department, can the said service be considered as continuing service in order to claim the benefit of being covered by the Old Pension Scheme.

17. Though on behalf of the petitioner, it is sought to be contended that the petitioner having joined the Commercial Taxes Department initially on 11.01.1990 and having worked in the said Department till 1995, when her services were terminated on account of non-availability of vacancy, the petitioner had accepted the aforesaid termination and was relieved from service. It is after about 12 years, she joined the Judicial Department in the year 2007 ie., after New Pension Scheme came into force on 01.04.2004. The petitioner at the time of joining the Judicial Department, did not claim for counting of her service in the Commercial Taxes Department from 1990 to 1995, so that she would be eligible to be covered by the Old Pension Scheme and not under the New Pension Scheme. Further, even her appointment in the Judicial Department is only a temporary appointment under Rule 10 (a) (i) of the Tamil Nadu Subordinate Service Rules. However, it is only after the petitioner getting appointed once again in the Commercial Taxes Department in the year 2010 and joining in the said Department on 23.12.2010 had sought for counting of her earlier service in the Commercial Taxes Department in order to claim that she should be covered by the Old Pension Scheme and not under the New Pension Scheme.

18. The fact that the petitioner having given up her claim when she had joined the Judicial Department in the year 2007 goes to show that the petitioner was aware of the fact that she is not entitled to claim the said benefit on account of break in service during the period from 1995 till 2007. The petitioner having accepted the said position in 2007, however, after retiring from the Commercial Taxes Department on attaining the age of superannuation on 31.05.2018, approached the second respondent authority, by submitting the representation seeking for counting of her past services in the Commercial Taxes Department in order to claim the benefit of Old Pension Scheme, which as noted herein above is purely on a temporary basis, and not being a temporary appointment under Rule 10 (a) (i) of the Tamil Nadu Subordinate Service Rules makes her claim liable for rejection. The fact that the petitioner having been joined in the Commercial Taxes Department on 11.01.1990 as a temporary typist and the said temporary appointment having been terminated with effect from 13.11.1995 and thereafter having joined the Judicial service only on 17.07.2007, the interruption of 12 years would also result in forfeiture of past service under Rule 24 of the Tamil Nadu Pension Rules.

19. Further, if only the petitioner had continued her service in the Commercial Taxes Department and thereafter, Judicial Department and again came back to Commercial Tax Department without any break in service and also necessary entries have been made in her service register relieving her from the said service in order to join in the new service, the petitioner can claim continuity of service from the date of her first appointment in a substantiate or officiating or in temporary capacity.

20. Since, the petitioner’s appointment in Commercial Taxes Department in the year 1990 is not temporary appointment in terms of Rule 10 (a) (i) of Rules and also on account of the fact that there has been a gap from 13.11.1995 to 17.07.2007, this Court is of the view that the petitioner is not entitled to seek for reckoning the date of her first appointment and the period of service in the Commercial Tax Department to be included in her qualifying service under Rule 11 (1) of Tamil Nadu Pension Rules.

21. Further, as the petitioner had joined the Commercial Taxes Department in a regular post pursuant to the notification issued by the TNPSC in the year 2010 having served till attaining the age of superannuation and retiring from service on 31.05.2018, when she had retired from service, the petitioner cannot claim for counting of her service of the period from 1990 to 1995 with the service, she had rendered in Commercial Tax Department from 23.12.2010 to 31.05.2018.

22. Further, the petitioner having not raised the aforesaid claim while in service, also disentitled her from claiming after having retired from service. Thus, considered from any angle, this Court is of the view that the present Writ Petition as filed is devoid of merit and is accordingly, dismissed. No order as to costs.