JUDGMENT (Prayer:in W.P.No.88 of 2022: Writ Petition has been filed under Article 226 of the Constitution of India to issue a Writ of Mandamus directing the Respondents 1 to 4 to count the past service of the Petitioner from 01.08.1995 to 28.04.2006, and admit him in the old Pension scheme by extending the benefit of the order passed in W.A.No.249, 282 and 448- 452/02 and 80/2004 dated 02.04.2004 in the case of “The State of Tamil Nadu and Others vs. Pallivasal Primary School” reported in 2004 (2) L.W.591 and in the light of G.O.Ms.No.413 dated 04.11.2010. in W.P.No.89 of 2022: Writ Petition has been filed under Article 226 of the Constitution of India to issue a Writ of Mandamus directing the Respondents 1 and 2 to count the past service of the Petitioner from 01.03.2001 to 21.12.2007, and admit her in the old Pension scheme by extending the benefit of G.O.Ms.34 dated 15.02.2017 and in the light of order passed in W.A.(MD)No.307/2019 dated 02.08.2019 in the case of “Vasanthi vs. State of Tamil Nadu and Others” reported in 2019 (4) CTC 865 .) Common order 1. (a) Writ Petition No.88 of 2022 is filed to direct the Respondents 1 to 4 to count the past service of the Petitioner from 01.08.1995 to 28.04.2006, and admit him in the old Pension scheme by extending the benefit of the order passed in W.A.No.249, 282 and 448 to 452 of 2002 and 80/2004 dated 02.04.2004 in the case of “The State of Tamil Nadu and Others vs. Pallivasal Primary School” reported in 2004 (2) L.W.591 and in 3/21 W.P.Nos.88 and 89 of 2022 the light of G.O.Ms.No.413 dated 04.11.2010. 1. (b) Writ Petition No.89 of 2022 is filed to direct the Respondents 1 and 2 to count the past service of the Petitioner from 01.03.2001 to 21.12.2007 and admit her in the old Pension scheme by extending the benefit of G.O.Ms.34 dated 15.02.2017 and in the light of order passed in W.A.(MD)No.307 of 2019 dated 02.08.2019 in the case of “Vasanthi vs. State of Tamil Nadu and Others” reported in 2019 (4) CTC 865 . 2. Since the factual matrix involved in these writ petitions are common in nature, both petitions are heard together and are being disposed of by this common order. 3. (a) 5th Respondent school is a Non-Minority School. It is an Aided Primary School. 2. Since the factual matrix involved in these writ petitions are common in nature, both petitions are heard together and are being disposed of by this common order. 3. (a) 5th Respondent school is a Non-Minority School. It is an Aided Primary School. A vacancy arose for the post of Secondary Grade Teacher in the school due to resignation of one Mr.S. Ramesh on 31.07.1995. The Petitioner was appointed as Secondary Grade Teacher (Telugu) with B.Ed. 4/21 W.P.Nos.88 and 89 of 2022 qualification vide order dated 01.08.1995 due to non-availability of Secondary Grade (Telugu) teacher. 3rd Respondent forwarded proposal to the 2nd Respondent dated 25.10.1996 requesting for exemption for G.O.Ms.No.559. The 2nd Respondent rejected the proposal by proceedings dated 21.1.1997 on the ground that the 5th Respondent school made appointment without obtaining the list from the District Employment Exchange. Further the Government issued a G.O.Ms.No.559 dated 11.7.1995 the same has been challenged by way of batch of Writ Petitions. The Petitioner also filed a writ petition No.10673 of 1997 and obtained order of interim stay. Despite the Interim Order the Respondents failed to approve the appointment of the Petitioner. However, by a common order dated 19.05.1998 this Court dismissed the batch of writ petitions. The Petitioner filed W.A.No.1589 of 1998. This Court by an order dated 29.06.2001 disposed the W.A.No.991 to 998 of 1998, with direction to approve the appointment of the teachers made between 11.07.1995 to 19.05.1998 on completion of one month Child Psychology Training. However, the petitioner was not sent for training though his appointment was made after G.O.Ms.No.559 dated 11.07.1995. 5/21 W.P.Nos.88 and 89 of 2022 3. (b) 3rd Respondent forwarded proposal on 29.07.2003 to the 2nd Respondent recommending the petitioner to undergo one month child psychology training. Thereafter, 3rd Respondent by proceedings dated 17.05.2004 directed the petitioner to undergo training from 17.05.2004 to 16.06.2004, but the same was cancelled by the authorities for the reasons best known to them. Thereafter the petitioner was sent for child psychology training from 29.03.2006 to 28.04.2006 and on completion of the training the 3rd Respondent approved the Petitioner''s appointment w.e.f. 29.04.2006 by proceeding dated 22.08.2006. As per G.O.Ms.No.155 dated 3.10.2002 the Petitioner ought to have sent for one month child psychology training along with other teachers from 31.05.2003 to 01.06.2003. But For the fault of the Department, the Petitioner had lost salary from 02.06.2003 to 28.04.2006. As per G.O.Ms.No.155 dated 3.10.2002 the Petitioner ought to have sent for one month child psychology training along with other teachers from 31.05.2003 to 01.06.2003. But For the fault of the Department, the Petitioner had lost salary from 02.06.2003 to 28.04.2006. As against the order of recovery and other conditions laid down in G.O.Ms.No.155 dated 03.10.2002 several writ petitions and writ appeals were preferred. By order dated 02.04.2004 this Court directed the Government to count the past service of the teachers for pension benefits in the case of “The State of Tamilnadu vs. Pallivasal Primary School” 6/21 W.P.Nos.88 and 89 of 2022 reported in 2004(2) LW 591 . Benefit of that Order, the Petitioner is entitled to Old Pension Scheme. But contrary to the findings of this Court he was admitted in the Contributory Pension Scheme. The denial of benefit of Old Pension Scheme is clear case of discrimination and violative of Article 14 and 21 of the Constitution of India. Hence praying for direction to the Respondents to count the past service and admit him in the Old Pension Scheme by extending the benefit of order passed in W.A.No249,282, 448- 452 of 2002 and 80 of 2004 dated 02.04.2004 in the case of “The State of Tamil Nadu and others v.s.Pallivasal Primary School” reported in 2004(2) LW 591 and in the light of G.O.Ms.No.413 dated 04.11.2010. 4. (a) In the counter filed by the 3rd Respondent for himself and on behalf of respondents 1, 2 and 4 it is stated that due to the resignation of one Mr.S. Ramesh on 31.07.1995, the Petitioner was appointed as Secondary Grade Teacher (Telugu) with B.Ed., qualification on 01.08.1995, i.e.,The Petitioner was appointed on the very next day of the vacancy arose. The School Committee of the School should have obtained prior permission from the District Educational Officer as per the Rule 15(4) of the Tamil 7/21 W.P.Nos.88 and 89 of 2022 Nadu Recognised Private School (Regulations) Rules, 1974. Only women teachers alone be appointed in the Secondary Grade Teacher post as per the G.O.(Ms) No.788, Education Department dated 31.07.1991. But the Petitioner being a male candidate did not even obtain Secondary Grade Teacher Training Certificate and hence, the appointment of the Petitioner was not considered for approval of the appointment of the Petitioner. Only women teachers alone be appointed in the Secondary Grade Teacher post as per the G.O.(Ms) No.788, Education Department dated 31.07.1991. But the Petitioner being a male candidate did not even obtain Secondary Grade Teacher Training Certificate and hence, the appointment of the Petitioner was not considered for approval of the appointment of the Petitioner. Since the Petitioner was appointed in the leave vacancy the claim of the Petitioner could not be considered and the regular vacancy arose due to death, retirement and resignation, that vacancy should be filled up after getting prior permission from the District Educational Officer as per the proviso in Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulations) Rules, 1974. 4.(b) The Writ Petition No.10673 of 1997 filed by the Petitioner seeking to approve the appointment was dismissed by this Court on 19.05.1995, against which the Petitioner filed W.A.No.1589 of 1998 and other teachers filed W.A.Nos.991 to 998 of 1998 and this Court by order dated 29.06.2001 passed order in W.A.Nos.991 to 998 of 1998 directed the 8/21 W.P.Nos.88 and 89 of 2022 Respondents to send one month child Psychology training, whereas no orders have been passed in the Writ Appeal filed by the Petitioner on 29.06.2001. Thereafter order was passed in W.A.No.1589 of 1998 on 29.04.2005. In pursuance to the above order the Petitioner was sent for Child Psychology Training from 19.03.2006 to 28.04.2006 and thereafter appointment of the Petitioner was approved by the 3rd Respondent. Since the Petitioner''s appointment was approved only from 29.04.2006 i.e., after 01.04.2003 he is eligible only Contributory Pension Scheme. Hence the Writ Petition is not maintainable and the same is liable to be dismissed as devoid of merits. 5. (a) 5th Respondent School is Telugu Linguistic Minority School. It is an Aided Primary School. For the post of Secrondary Grade Teacher a vacancy arose in the year 1999. Due to the dearth of Secondary Grade (Telugu) candidates, the Government issued G.O.Ms.No.307 dated 01.11.1999 permitted the aided institution to appoint B.Ed qualified teacher in the Secondary Grade vacancies on condition that such appointees shall undergo one month child psychology training and on completion of training 9/21 W.P.Nos.88 and 89 of 2022 their appointments could be approved. 5. (b) The Petitioner was appointed on 01.03.2001 as Secondary Grade Teacher (Telugu) with B.Ed qualification. 5. (b) The Petitioner was appointed on 01.03.2001 as Secondary Grade Teacher (Telugu) with B.Ed qualification. Despite the proposal sent for approval of her appointment to the District Elementary Educational Officer(now district Educational Officer)/3rd Respondent, the same was forwarded to the 2nd Respondent for approval. However, no order has been passed on the proposal in view of G.O.Ms.No.559 dated 11.07.1995. The said G.O.was challenged before this Court several individuals. However, all the Writ Petitions were dismissed. Challenging the dismissal order a batch of Writ Appeals were filed in W.A.Nos.991 to 998 of 1998. The said Writ Appeals were disposed of by this Court on 29.06.2001 with direction to approve the appointment of the teachers made between 11.07.1995 to 19.05.1998, on completion of one month child psychology training. Accordingly, G.O.Ms.No.155 dated 03.10.2002 was issued. Pursuant to that G.O., teachers were appointed from 11.07.1995 to 19.05.1998 and sent for one month child psychology training and on completion of training, their appointments were approved w.e.f. 02.06.2003. 10/21 W.P.Nos.88 and 89 of 2022 5. (c) 3rd Respondent requested the 2nd Respondent to approve the appointment of the Petitioner w.e.f. 01.03.2001 by sending the petitioner for one month training. However, the Petitioner was not sent for one month child psychology training from 31.5.2003 to 01.06.2003 for the reasons best known to them. Thereafter after the lapse of six years and eight months the petitioner was sent for child psychology training from 19.11.2007 to 21.12.2007 and on completion of the training the 3rd Respondent approved the Petitioner''s appointment w.e.f. 22.12.2007 by proceeding dated 31.10.2008. 5. (d) It is the case of the Writ Petitioner that a similar appointment made by one Ramakrishna High School Thiruvottriyur on 15.11.2000, same was approved by he District Educational Officer by an order dated 15.02.2001, w.e.f.15.11.2000 and she was sent one month child psychology training from 14.03.2002 to 13.04.2002. 5. (e) As per G.O.Ms.No.155 dated 3.10.2002 the Petitioner ought to have sent for one month child psychology training along with other teachers 11/21 W.P.Nos.88 and 89 of 2022 from 31.05.2003 to 01.06.2003. But For the fault of the Department, the Petitioner had lost salary from 02.06.2003 to 21.12.2006. As against the order of recovery and other conditions laid down in G.O.Ms.No.155 dated 03.10.2002 several writ petitions and writ appeals preferred. But For the fault of the Department, the Petitioner had lost salary from 02.06.2003 to 21.12.2006. As against the order of recovery and other conditions laid down in G.O.Ms.No.155 dated 03.10.2002 several writ petitions and writ appeals preferred. By order dated 02.04.2004 this Court directed the Government to count the past service of the teachers for pension benefits in the case of “The State of Tamilnadu vs. Pallivasal Primary School” reported in 2004(2) LW 591 . As per that Order, the Petitioner is entitled to Old Pension Scheme. But contrary to the findings of this Court he was admitted in the Contributory Pension Scheme. The denial of benefit of Old Pension Scheme is clear case of discrimination and violative of Article 14 and 21 of the Constitution of India. Hence praying for a direction to the respondent to count the past service of the petitioner and admit the petitioner in the Old Pension Scheme in the light of the order passed in W.A.(MD)No.307 of 2019 dated 02.08.2019 in the case of “V. Vasanthi vs. State of Tamil Nadu and others, reported in 2019 (14) 865. 6. In the Counter affidavit filed by the 4th Respondent on his behalf and on behalf of Respondent Nos.1 to 3 it is stated that the Petitioner was 12/21 W.P.Nos.88 and 89 of 2022 appointed in the 5th Respondent School on 1.3.2001 and the 3rd Respondent approved the appointment of the Petitioner as Secondary Grade Assistant w.e.f.22.12.2007. In the meanwhile G.O.Ms.No.155 dated 3.10.2002 was issued stating that Secondary Grade Teacher appointed with B.Sc.,B.Ed.,qualification has to undergo training in Child Psychology and only after completion of such training the service rendered in Secondary Grade Teacher would be regularised. Accordingly after completion of Child Psychology training the 3rd Respondent approved her appointment on 22.12.2007. The petitioner has accepted the appointment without any protest. Therefore she could not claim to include the unapproved service rendered and award back wages retrospectively. Hence, the Petitioner is not eligible to claim Old Pension Scheme and the petition may be dismissed as devoid of merits. 7. The learned counsel appearing for the Petitioner would submit that the date of appointment of the both the Writ Petitioners are not in dispute. Child Psychology training was conducted later as far as the Petitioners concerned. The delay is only on the part of the Respondents. 7. The learned counsel appearing for the Petitioner would submit that the date of appointment of the both the Writ Petitioners are not in dispute. Child Psychology training was conducted later as far as the Petitioners concerned. The delay is only on the part of the Respondents. Because of 13/21 W.P.Nos.88 and 89 of 2022 such delay caused by the Respondents, Petitioners right cannot be defeated and there are similarly situated persons have appointed and admitted in the Old Pension Scheme. The Petitioner''s are alone discriminated in this regard. 8. Learned Special Government Pleader appearing the for the Respondents 1 to 4 submitted that the Petitioner as per Government Order Ms.NO.155 School Education Department dated 03.10.2002 the Petitioners service would be regularised after completion of training in Child Psychology. Therefore, the Petitioner cannot claim any right in admitting the Old Pension Scheme. 9. The Respondents are not disputed the original date of appointment of the Writ Petitioners as Secondary Grade Teachers. The Petitioner in W.P.No.88 was originally appointed on 1.8.1995 as Secondary Grade Teacher in the 5th Respondent School in W.P.No.88 of 2022, and proposals also sent on 15.11.1995 seeking approval of the Petitioner''s appointment. However, the 5th Respondent School recommended the proposal forwarded 14/21 W.P.Nos.88 and 89 of 2022 to the 4th Respondent on 11.12.1995. 3rd Respondent returned the proposal on 15.12.1995 on the ground that there is a prohibitio of appointment B.Ed. qualified as Secondary Grade Teacher as per G.O.Ms.No.559 dated 11.07.1995. 10. The Writ Petitioner in W.P.No.89 of 2022 was appointed as Secondary Grade Teacher (Telugu) on 01.03.2001 in the 5th Respondent school and proposals also sent on 09.10.2002 and 10.04.2002. However, the same was not approved in view of G.O.Ms.No.559 dated 11.07.1995. Batch of Writ Petitions have been filed challenging the above Government Order. However, by a common order dated 19.05.1998 this Court dismissed the batch of writ petitions. The Petitioner field W.A.No.1589 of 1998. This court by an order dated 29.06.2001 disposed the W.A.No.991 to 998 of 1998, with direction to approve the appointment of the teachers made between 11.07.1995 to 19.05.1998 on completion of one month Child Psychology Training. These facts are not disputed. Admittedly, these two writ petitioners have appointed prior to the cut off date referring the G.O.Ms.No.559 dated 11.07.1995. This court by an order dated 29.06.2001 disposed the W.A.No.991 to 998 of 1998, with direction to approve the appointment of the teachers made between 11.07.1995 to 19.05.1998 on completion of one month Child Psychology Training. These facts are not disputed. Admittedly, these two writ petitioners have appointed prior to the cut off date referring the G.O.Ms.No.559 dated 11.07.1995. The only caveat made in the direction of 15/21 W.P.Nos.88 and 89 of 2022 the Government Order is to approve the appointment of teachers made between 11.07.1995 to 19.05.1998 on completion of one month child psychology training. It is relevant to note that one of the Writ Petitioners Appeal was disposed on 29.06.2001, but the appointees have not sent the writ petitioner to Child Psychology Training. Thereafter, the Writ Petitioner was sent to the Training only in the year 2006. Similarly the Writ Petitioner in W.P.No.89 of 2022 also not sent to the Child Psychology Training. Considering the Order of the division Bench of this Court in W.A.No.991 to 998 of 1998 she was also sent later. 11. When the very G.O.Ms.559 dated 11.071995 was put in challenge and it was upheld and the Court has directed to approve the appointment of teachers who were appointed from 11.07.1995 to 19.05.1998 the Respondents ought to have sent all the teachers appointed as Secondary Grade Teachers before the cut of date. Appointment of these writ petitioners made between the cut off date referred in the judgment i.e.,11.07.1995 to 19.05.1998. These facts are not in dispute. 16/21 W.P.Nos.88 and 89 of 2022 12. In The State of Tamil Nadu and others vs. Pallivasal Primary School reported in 2004 (2) LW 591 the Division Bench though held that nothing wrong in the Government directing that their approval/confirmation can only be on and after the date of completing the training. However, made it clear that their past service shall count for pension. 13. In The State of Tamil Nadu and others vs. Pallivasal Primary School reported in 2004 (2) LW 591 the Division Bench though held that nothing wrong in the Government directing that their approval/confirmation can only be on and after the date of completing the training. However, made it clear that their past service shall count for pension. 13. A Division Bench of Madurai Bench of Madras High Court in V.Vasanthi vs. The State of Tamilnadu [ W.A.(MD)No.307 of 2019 dated 02.08.2019] in a similar facts of the case has held as follows: “12.A careful perusal of the above observation made in the said Pallivasal Primary School case would show that even though approval of the appointment of the teacher, who has undergone Child 9 Psychology Training, will take effect only on completion of such training, the past service rendered by such teacher i.e., service rendered before the completion of such training, is bound to be counted for pension. In other words, the service period of such teacher commences from the date of the appointment and not from the date of approval, even though the monetary benefits start to accrue only from the date of completion of the training. Therefore, for all practical purposes, the date of appointment is not altered and remain to be the same. 17/21 W.P.Nos.88 and 89 of 2022 Therefore, the date of approval of appointment of the writ petitioner cannot be construed as the date relevant for considering the applicability of the pension scheme and on the other hand, it is the original date, on which the writ petitioner got appointed that matters for considering as to whether the writ petitioner is governed under the Old Pension Scheme or not. At this juncture, it is relevant to note that in G.O.Ms.No.259, Finance (Pension) Department, dated 06.08.2003, a proviso to Rule 2 of the Tamil Nadu Pension Rule 1978, was introduced by way of amendment, wherein and whereby, it is contemplated that the Tamil Nadu Pension Rules 1978 shall not apply to Government Servants “appointed” on or after 1st April 2003 to services and posts. The word “appointed” referred in the said proviso cannot be construed to mean approval of such appointment. 13. In fact, the very same issue was considered by one of us (KRCBJ) in W.P(MD)No.3308 of 2007. The word “appointed” referred in the said proviso cannot be construed to mean approval of such appointment. 13. In fact, the very same issue was considered by one of us (KRCBJ) in W.P(MD)No.3308 of 2007. The Contributory Pension Scheme was introduced to the newly recruited employees, who are recruited on or after 01.04.2003. Relevant clause 3(i) of G.O.Ms.No. 259 dated 06.08.2003, which has introduced the New Contributory Pension Scheme, was taken into consideration in the said case and it was found that the said Government Order introducing New Contributory Pension Scheme, would apply only to persons, who were recruited on or after 01.04.2003 and not in respect of persons, who were recruited earlier to 18/21 W.P.Nos.88 and 89 of 2022 01.04.2003. In that case, though the writ petitioner therein was recruited on 26.03.2003, he jointed the duty on 04.04.2003 after obtaining the medical certificate from the Medical Board, since he is a physically challenged person. Therefore, it was found therein that the date of joining of such person cannot be considered as date of appointment as such event of appointment had already taken place well before 01.04.2003. We are informed that the above said order has been given effect to.” 14. Similarly a Division Bench of this Court in The State of Tamil Nadu vs. R. Chitradevi [Order dated 30.06.2022 Madras High Court] also relying V. Vasanthi''s case confiming the order of the single Judge directed to count the past service prior to the completion of the Child Psychology training for pensionary benefits. 15. Similarly, in The State of Tamil Nadu and others vs. K. Sulochana and others [W.A.(MD)Nos.348 & 349 of 2021 order dated 04.01.2023] a Division Bench of this Court also confirmed the order of the single Judge and directed to count the past service. 19/21 W.P.Nos.88 and 89 of 2022 16. Those orders were already implemented and those Petitioners also joined the Government Service prior to the cut off date as per G.O.Ms.No.559 dated 11.07.1995. In such a view of the matter, denying the similar relief to the Petitioners is nothing but discrimination under Article 14 of the Constitution. 17. Considering the above, as the delay is only on the part of the Respondents in sending the Petitioners to the Child Psychology Training, now they cannot take a stand that only from the date of regularisation, the service would be counted. 18. 17. Considering the above, as the delay is only on the part of the Respondents in sending the Petitioners to the Child Psychology Training, now they cannot take a stand that only from the date of regularisation, the service would be counted. 18. Accordingly, both the Writ Petitions are allowed. The Respondents are directed to count the past service of the Writ Petitioners from the date of their appointment and admit them in the Old Pension Scheme. Such exercise shall be done within a period of two months. No costs.