U.P. Lekhpal Sangh Through Its Treasurer Vinod Kumar Kashyap v. State of U.P. and 7 Others

ORDER Having heard learned counsel for the parties, we are not inclined to interfere with the order passed by the High Court in the peculiar facts of this case. The Special Leave Petition is, accordingly, dismissed. However, the question of law is kept open. Pending application(s), if any stands disposed of accordingly."

¶56In the case of Kamlesh Kumar Sonakar and Others Vs. State of U.P. and Others (Writ-A No.55607 of 2008) an advertisement for recruitment of 361 vacancies of Junior Engineer (Civil), Irrigation Department (Special Recruitment) was published on 31.12.2002 and the last date for submission of application form was 27.01.2003. After completion of the selection process, the Commission vide communication dated 08.12.2004 forwarded the select list to the State Government for appointment. Thereafter, the State Government issued appointment letters to the candidates. Some candidates were issued appointment letters before 01.04.2005 while others were issued after

01.04.2005. The petitioners in the said case were given the appointment on 30.03.2005 and they submitted their joining after 01.04.2005. The petitioners were denied the benefit of the Old Pension Scheme. They approached this Court seeking the benefit of the Old Pension Scheme. This Court again by placing reliance upon the Division Bench judgement of this Court in the case of Firangi Prasad (supra) and judgement of Delhi High Court in the case of Inspector Rajendra Singh Vs. Union of India 2017 SCC Online Del. 7879 affirmed by the Apex Court directed the respondents to extend the benefit of the Old Pension Scheme to the petitioners.

¶57The State of U.P. preferred Special Appeal Defective No.116 of 2021 against the judgement of this Court in Writ-A No.55607 of 2008 which was dismissed by the Appellate Court by judgement dated

19.02.2021. Paragraphs 7 to 9 of the said judgement are reproduced herein below:- "7. The issue for consideration is, as to the applicability of the new pension scheme which came into force since 1.4.2005, or to give effect to the old pension scheme to the petitioners/ non-appellants as they were given appointment prior to 01.4.2005. The case of the petitioners /non-appellants is that they were given appointment letter on 30.3.2005, thus would be entitled for the benefit of old pension scheme as the date of joining is immaterial.

¶8The issue aforesaid has been factually discussed by the learned Single Judge by referring to the judgment of this Court in the case of Satyesh Kumar Mishra and others vs. State of U.P. and others 2016(6) ADJ 808

(LB) and so as the judgment of Delhi High Court in the case of Inspector Rejendra Singh vs. Union of India 2017 SCC Online Del. 7879. We do not find any error in the judgment. It is not only the date of appointment is relevant but candidate lower in merit out of same selection are governed by the old pension scheme because appointments and joining were given from time to time before even 01.4.2005 thus appellant cannot be deprived from the same benefits. The judgments on the issue has been discussed by the learned Single Judge.

¶9In Special Appeal Defective No.117 of 2021 (State of U.P. and 2 Others vs. Mahesh Narain and 2 others) vide order of date, similar view has been considered by the Division Bench of this Court."

¶58In the case of Bageshwari Prasad Srivastava and Others Vs. State of U.P. and Others (Writ-A No.28543 of 2013) decided on

11.10.2022, this Court allowed the writ petition and quashed the order dated 03.09.2012 by which petitioners were denied the benefit of Old Pension Scheme. In the said case, petitioners were employees of Bhadohi Woolen Limited a unit of Uttar Pradesh Textile Corporation Ltd., Bhadohi. The said unit fell in loss resulting in retrenchment of petitioners. Subsequently, a resolution dated 18.05.1996 was passed by the U.P. Textile Corporation Limited Bhadohi recommending the absorption of the petitioners against suitable Class-III and Class-IV posts under government employment. When no action was taken on the said resolution, the petitioners approached this Court by filing a writ petition which came to be disposed off by this Court directing the authorities to decide the claim of petitioners for absorption.

¶59The claim of the petitioners was rejected by order dated

28.04.1998 which was challenged by the petitioners by filing Writ Petition No.17195 of 1998. The said writ petition was allowed by this Court by judgement dated 29.04.1999 directing the authorities to absorb the petitioners against the Class-III and Class-IV posts commensurate to the qualification possessed by the individual petitioners.

¶60The State Government challenged the judgement dated

29.04.1999 in Special Appeal No.540 of 1999 which came to be dismissed by the Special Appeal Court by the judgement dated

29.11.2001. The State of U.P. preferred Special Leave Petition No.5379 of 2002 which was also dismissed by the Apex Court by judgement dated 18.03.2002, yet the respondents did not absorb the petitioners.

¶61The petitioners preferred the contempt petition and thereafter, petitioners came to be absorbed and appointment letters were issued on

09.04.2005. However, petitioners were denied the benefit of the Old Pension Scheme by order dated 03.09.2012. While setting aside the said order in Writ-A No.28543 of 2013, this Court observed as under:- "Once the State respondents are found to have delayed the proceedings, in entirety, they cannot be permitted to wriggle out of the consequence of delay. In fact, sufficient discretion has already been exercised in favour of the State respondents inasmuch as upon showing compliance by issuance of appointment letters to the petitioners, the contempt proceedings appear to have been dropped, at that stage. In view of the above, in the peculiar facts of the present case, it is found the right to be absorbed arose to the petitioners not on 09.4.2005 when the appointment letters came to be issued but on 29.4.1999 when the writ Court issued a positive direction in that regard. In any case, that right got vested on 18.3.2002 when the Special Leave Petition filed by the State against the decision of the Intra Court Appeal No.540 of 1999 (dated

19.11.2001) came to be dismissed. Three years was much more than the time actually required to give effect to the order of the Supreme Court. Accordingly, the petitioners must be treated to have been absorbed, notionally on 18.3.2002. Hence, they are entitled to pension under Old Pension Scheme."

¶62The State of U.P. preferred Special Appeal No.176 of 2023 against the judgement of this Court passed in Writ-A No.28543 of 2013 which was dismissed by the Appellate Court by judgement dated

29.03.2023. The relevant extract of the judgement dated 29.03.2023 is reproduced herein below:- "No doubt, under the new pension scheme notified by the Government on

28.03.2005 it is specifically provided that from 1.04.2005, the new defined contribution pension scheme would mandatorily apply to all new recruits to the service of State Government and State Controlled Autonomous/State Aided Private Educational Institutions. The employees covered by the existing pension scheme, whose service would be less than 10 years on 1.04.2005, have also been given option to opt for the new pension scheme in place of the existing pension scheme. No doubt, the appointment letter of the petitioners is dated 9.04.2005 and they joined in pursuance thereof on or before 20.04.2005, but it is an admitted fact on record that the direction of the Writ Court for absorption of the respondents against Class III and IV posts was issued on

29.04.1999. The special appeal filed by the State Government was dismissed on 29.11.2001 followed by dismissal of the SLP on 18.03.2002. The State Government had no justifiable reason with it to withhold the absorption and issuance of appointment letters to the respondents. The respondents were compelled to initiate contempt proceedings against the State and whereafter, appointment letters were issued to them on

9.04.2005. In the aforesaid background, the learned Single Judge has rightly held that the stand taken by the State for denying the benefit of old pension scheme to the respondents did not merit acceptance as valuable right to being appointed accrued in their favour atleast after dismissal of the SLP. The learned Single Judge has rightly directed the State to treat the respondents to have been absorbed in service notionally on

18.03.2002, the date on which the issue relating to their absorption in Government Service was finally settled by the Supreme Court."

¶63In the case of Inspector Rajendra Singh (supra), the petitioners challenged an order dated 06.02.2016 whereby respondents denied the petitioners the benefit of the Old Pension Scheme on the ground that they joined the service after the introduction of the New Contributory Pension Scheme after 01.01.2004. In the said case, an advertisement was issued by the Staff Selection Commission inviting applications for recruitment for the post of Sub-Inspector in the Border Security Force

(BSF), Central Industrial Security Force, Central Reserve Police Force and Indo-Tibetan Border Police Force. The petitioners appeared in the written examination held on 12.01.2003. They qualified in the written examination whereupon they were asked to appear for the physical efficiency test. The petitioners appeared in the physical efficiency test which they qualified for. Thereafter, they appeared for the medical examination in which they were found medically unfit by the Medical Board. The petitioners got themselves medically examined in other reputed medical institutions where they were declared medically fit.

¶64The petitioners, thereafter, applied for re-medical examination by a Review Medical Board. While the appeals of the petitioners for re-medical examination before the Review Medical Board were pending, the Staff Selection Commission published the results of all selected candidates. The candidates selected for the CRPF, CISF and ITBP were issued appointment letters and they joined before 31.12.2003. On

28.12.2003, the petitioners were directed to appear before the Review Medical Board. All the petitioners were declared fit. Thereafter, petitioners were issued letters dated 17.03.2004 to appear for interview before the Staff Selection Commission on 22.04.2004. The petitioners were provisionally issued appointment letters on 17.03.2005 after delay of another 11 months on the part of the Staff Selection Commission. The Delhi High Court quashed the impugned order denying the Old Pension Scheme to the petitioners by placing reliance upon the judgement of Naveen Kumar Jha (supra) decided on 02.11.2012 and Avinash Singh Vs. Union of India decided on 26.05.2011. Relevant paragraphs of the judgement of Inspector Rajendra Singh (supra) are reproduced herein below:- "13. Having regard to the facts and circumstances of this case, where advertisements for recruitment to the posts of Sub Inspectors in CAPFs were issued in November, 2002, written examinations were held on

12.01.2003, Physical Efficiency Test had been held in or before April, 2003, and the petitioners appeared before the Medical Board between April, 2003, to June, 2003, and declared fit upon medical re-examination by Review Medical Board in December, 2003, it would be grossly unjust and arbitrary to deny the petitioners the benefit of the Old Pension Scheme, applicable at the time when the posts were advertised, only because of the fortuitous circumstance of their joining service after the enforcement of the New Pension Scheme, for reasons not attributable to them.

¶14As observed above, the authorities concerned took six months' time to decide the appeal against the decision of the Medical Board, declaring the petitioners medically unfit. The petitioners were found fit by other Medical institutions of repute and ultimately found fit by a Review Medical Board constituted by the respondent authorities themselves on

28.12.2003. The respondent authorities unnecessarily delayed constitution of a Review Medical Board. Had the respondent authorities and in particular Staff Selection Commission acted with diligence, the petitioners could have been appointed within 31.12.2003. …................................*......................................*.......................................*

¶18In our view, basic terms and conditions of service, such as the right to receive pension upon superannuation, as applicable at the time of notification of the posts, cannot later be altered to the prejudice of the incumbents to the post, after commencement of the selection process. …...............................*.......................................*.......................................*

¶23The issue of whether Sub Inspectors similarly circumstanced, as the petitioners, who had been cleared in medical examinations in 2003, but issued with appointment letters and joined the BSF in 2004 or 2005, could be denied pensionary benefits under the old pension scheme, which ended on 21.12.2003, was decided by a Division Bench of this Court in WP(C) No.5830/2015 (Shoorvir Singh Negi Vs. Union of India and others) heard with five other writ petitions.

¶24By a judgment and order dated 17.09.2015, the Division Bench held:- "As far as the claim for pensionary benefits based upon the old pension scheme which ended on 31.12.2003 is concerned, we are of the opinion that a somewhat different result would have to follow. Undoubtedly, all the petitioners were declared medically fit by 2003. However, they would not be issued with appointment letters and joined subsequently in 2004 or 2005. It is here that the observations in Avinash Singh (supra) quoted with approval in Naveen Kumar Jha (supra) become relevant. Although the petitioners were declared fit earlier - at least much before the cessation of the old pension rules, there was an administrative delay in the issuance of the appointment letter asking them to join training. In these circumstances, in the interest of justice, we hold that they should be entitled to the benefits of the old pension scheme." …...............................*.....................................*.......................................*

¶27The respondents have filed counter affidavit to the writ petition, wherein it is stated that the new pension scheme was introduced with effect from 01.01.2004 vide Government of India Notification dated

02.12.2003. Offer of appointment to other BSF Sub Inspectors appointed through the same examination were issued during the month of December, 2003, that is before commencement of new pension scheme, without mentioning the condition of new pension scheme, whereas, the petitioners herein were issued offers of appointment mentioning the condition that the new restricted defined contributory pension system would be applicable to them. …..................................*......................................*......................................*

¶39It is well settled that relief under

Article 226 of the Constitution of India is discretionary. When there is acquiescence and laches and delay in approaching this Court, discretionary relief might be declined. However, delay is no bar to entertaining writ petition. If entertaining a delayed writ petition entails the consequence of unsettling things already settled, relief may be declined. However, flagrant discrimination cannot be allowed to continue, only because of delay. Illegality must be redressed. In this case grant of relief would not result in unsettling things already settled. We are not inclined to reject the writ petition on the ground of delay."

¶65The Union of India preferred Special Leave Petition (Civil) Diary No.39335 of 2017 against the judgement of the Delhi High Court in the case of Inspector Rajendra Singh (supra) which was dismissed by the Apex Court on 08.01.2018. The judgement of the Apex Court reads as under:- "Upon hearing the counsel the Court made the following ORDER Delay condoned. The Special Leave Petition is dismissed."

¶66In the case of Tanaka Ram and others Vs. Union of India & Others decided on 12.02.2019, the Delhi High Court extended the benefit of the Old Pension Scheme to the petitioners. In the said case, petitioners applied for recruitment in the BSF under an advertisement issued by the office of DIG and Commandant, Training Centre and School, BSF, Hazaribagh in August 2003 as well as Frontier Headquarters BSF, Rajasthan and Gujarat in November 2003. A notification was issued on 4th August 2003 by the Ministry of Home Affairs with the direction to the Director General, BSF to complete the entire process by 31st October 2003 so that selected candidates could be dispatched to their respective training centres before 15.12.2003 for their basic recruitment training which was to commence from 1st January 2004. The petitioners cleared the written test and medical exam in November 2003 however, they were issued call letters for joining only in February 2004. The Delhi High Court after considering the several judgements and also the fact that the Director General (BSF) accepted the judgement in the case of Parmanand Yadav Vs. Union of India by issuing an order dated 13.01.2016 extending the benefit of Old Pension Scheme to the petitioner-Parmanand Yadav and other similarly situated SI/DE selected through CPO Exam-2002 held that petitioners are entitled to the benefit of Old Pension Scheme.

¶67The judgement of Tanaka Ram (supra) was also assailed by the Union of India before the Apex Court in Special Leave Petition (Civil) Diary No.25228 of 2019. The order of Apex Court dated 02.09.2019 reads as under:- "Upon hearing the counsel the Court made the following ORDER Delay condoned. The Special Leave Petition(s) is/are dismissed. Pending application stands disposed of."

¶68This Court in the case of Parneet and Others Vs. State of U.P. and Others passed in Writ-A No.4191 of 2021 extended the benefit of the Old Pension Scheme to the petitioners, who were issued appointment letters on 08.02.2005 and were to submit their joining within 15 days. However, the State Government issued an order dated

09.02.2005 staying all further proceedings in respect of appointments. Later on, the State Government issued an order dated 28.11.2005 stating that there was no illegality in the selection process of petitioners, and therefore, the directions were issued to ensure the joining of selected candidates. The petitioners, thereafter, joined, but they were denied the benefit of the Old Pension Scheme. This Court placing reliance upon the judgement of the Coordinate Bench of this Court in the case of Mahesh Narayan (supra) allowed the writ petition.

¶69In Special Appeal Defective No.448 of 2021 (State of U.P. and Others Vs. Shiv Kant Tiwari), this Court affirmed the judgement dated

03.03.2020 of learned Single Judge. The relevant extract of the judgement is reproduced herein below:- "The relevant facts have already been discussed above thus need not to be reiterated. The petitioner/non-appellant was appointed by the order dated

02.12.2005. It was after the judgement dated 03.03.2005 on a petition preferred by him in the year 1998. The question for our consideration is as to whether petitioner/non-appellant can be covered by Old Pension Scheme which was applicable for the appointee upto 01.04.2005. The issue in reference to it has already been decided by this Court in the case of Firangi Prasad and Kamlesh Kumar Sonkar (Supra). It has been held that candidates appointed out of one selection would be entitled for same benefit, if few candidates appointed prior to 01.04.2005 and others subsequent to it, they all would be governed by old pension scheme. The delay in issuing appointment order in favour of few candidates would not deprive them from same benefits as are given to those appointed before

01.04.2005 out of one recruitment. Applying the same analogy, the petitioner/non-appellant is also entitled to the benefit, as provided by learned Single Judge. It cannot be denied only for the reason that the State Government received the recommendation by the Commission after the judgement of this Court in the year 2005. The appointment of the petitioner/non-appellant is pursuant to the same recruitment to which appointment were given to others between the years 2001 to 2003."

¶70Now this Court would analyse the judgements relied upon by the learned Additional Advocate General for the respondents.

¶71The first judgement on which learned Additional Advocate General placed reliance is the case of Satyesh Kumar Mishra and Others Vs. State of U.P. & Others 2016 (6) ADJ 808 (LB) wherein this Court dismissed the writ petition of the petitioners, who under an Advertisement No.1 of 2002 published on 27.09.2002 applied for being considered for appointment as Assistant Teacher, and they were selected by U.P. Secondary Education Services Selection Board, Allahabad (hereinafter referred to as 'Board') after following the due procedure. The Board allocated colleges to the selected candidates including the petitioners between November 2004 to December 2004. Thereafter, the District Inspector of Schools vide letter dated 13.12.2004 directed the Committee of Management of the concerned college allocated to the petitioners to issue appointment letters to the petitioners. However, letters of appointment were not issued as the Committee of Management of the respective colleges refused to issue appointment letters. Later on, appointment letters were issued to the petitioners on different dates after

01.04.2005. The petitioners in such backdrop, claimed the benefit of the Old Pension Scheme.

¶72This Court in denying the benefit of the Old Pension Scheme to the petitioners noted in paragraph 25 of the judgement that "Recruitment", "Advertisement", "Selection" and "Appointment" are different concepts under the service jurisprudence. "Recruitment" is the process of generating a pool of capable people to apply for employment in organization. Selection forms integral part of recruitment process, wherein from amongst eligible candidates, choice is made of person or persons capable to do the job as per the requirement. The process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment. "Appointment" is made, after selection process is over, issuance of letter in favour of selected candidates, is an offer to selected candidate to accept the office or position to which he has been selected. On acceptance of the terms and conditions of appointment, the selected candidates on joining has to be accepted as appointed, and he/she would be a new entrant and based on recruitment process, petitioner can not claim that she be brought within the scope and ambit of old pension rules in place of new pension rules. There is no dispute to the fact that process of selection was never altered and the entire selection was undertaken in accordance with the criterion which was laid down at the time of recruitment process. Therefore, assertion of the petitioner that the applicability of New Pension Scheme would amount to change in the terms and conditions of recruitment is untenable.

¶73Thereafter, this Court in paragraph 30 placed reliance upon the judgement of Apex Court in the case of Rakhi Ray and Others Vs. High Court of Delhi and Others 2010 (2) SCC 637 and Vijoy Kumar Pandey Vs. Arvind Kumar Rai and Others 2013 (11) SCC 611 and held that mere selection of a candidate does not give him the indefeasible right of appointment. This Court stated that empanelment at best is a condition of eligibility for appointment and by itself does not amount to create a vested right to be appointed. This Court on the analogy that the selection process contemplates four steps and mere selection of a candidate in the select list does not give him indefeasible or vested right to be appointed denied the petitioners the benefit of Old Pension Scheme because they joined after 01.04.2005. The same analogy has been adopted by this Court in the case of Ram Nakul Vs. State of U.P. and Others passed in Writ-A No.15392 of 2012 whereby this Court also denied the benefit of Old Pension Scheme to the petitioner whose process of selection was completed before the introduction of New Pension Scheme, and was issued appointment letter on 22.03.2005, but he was allowed to join on 19.04.2005 after the introduction of New Contributory Pension Scheme.

¶74This Court again in the case of Ravi Raj and Others Vs. State of U.P. and Others 2020 (3) ADJ 408 denied the benefit of the Old Pension Scheme to the petitioners who were selected in the year 2001. In the said case, the petitioners on account of ensuing litigation came to be appointed only in October 2006. While dismissing the writ petition, this Court placed reliance upon the judgement of this Court in the case of Ram Nakul (supra) in which this Court in paragraph 13 has considered the judgement of Satyesh Kumar Mishra (supra).

¶75Thereafter, this Court noted the judgement of Satyesh Kumar Mishra (supra) in paragraph 16 and deliberated the law propounded in the judgement of Satyesh Kumar Mishra (supra). This Court further noticed judgement of the Division Bench of this Court in the case of Bharat Yadav Vs. State of U.P. & Others in Writ-A No.16838 of 2019 upholding the validity of amendment incorporated in Rules, 1961 which provides that anyone who joins services of State after 01.04.2005 would not be entitled to the benefit of Old Pension Scheme under Rules, 1961.

¶76Thereafter, this Court in paragraph 18 of the judgement has held that 'this Court is of the considered view that the key to answer the question posed lies in the language employed by Section 2(3) of the 1961 Rules. The decisions noticed above in light of the plain language employed in Rule 2(3) hold that it is only the date on which the incumbent joins service which is relevant for the purposes of adjudging his eligibility to the benefits of the Old or the New Pension Scheme. They also lay stress on the issue of joining and hold that it is that facet which would be determinative. It becomes pertinent to note that Satyesh Kumar Mishra, Ram Nakul and Bharat Yadav were all rendered prior to the judgment in Mahesh Narayan. However of these three decisions only Satyesh Kumar Mishra has been noted with the learned Judge observing that it was liable to be viewed as having been rendered per incuriam. Since Mahesh Narayan clearly proceeds to lay down a principle, which runs contrary to that enunciated in the three previous decisions rendered on the subject, it would be apposite to analyze that decision in some detail'.

¶77Thereafter, this Court proceeded to consider the judgement of Mahesh Narayan (supra) and held that the judgement of Mahesh Narayan (supra) did not notice the judgement of Ram Nakul (supra) and Bharat Yadav (supra). Paragraph 20 of the judgement is reproduced herein below:- "20. Having conferred thoughtful consideration on the various decisions that have come to be rendered on the subject, the Court firstly notes that Mahesh Narayan fails to notice Ram Nakul and Bharat Yadav. Both these decisions directly dealt with the issue of applicability of the Old and New Pension Schemes depending upon the date of entry into service of a particular candidate. These decisions clearly bound the learned Judge while proceeding to decide Mahesh Narayan. However they do not appear to have been brought to the attention of the Court. Both Ram Nakul and Bharat Yadav fundamentally rest and pivot on the statutory amendments as introduced in 2005 in the 1961 Rules. As noted above, Rule 2(3) introduces and constructs a specific injunction in respect of its applicability to employees "entering" services or posts on or after April 01, 2005. Guided by the plain language as used in that Rule, it is manifest that it does not connect the applicability of the Rules to either a selection process commenced or pending or for that matter to any event prior to actual entry into service. In the considered view of this Court the expression "entering services..." cannot be equated to the selection or empanelment of an incumbent to government service. It is manifest that the applicability of the 1961 Rules is made dependent upon an incumbent actually being recognised as having become a member of the service on or before 1 April 2005. Viewed on its plain language it must be held, as this Court does, that entry into service alone would be determinative and since that event would occur only upon the issuance of an actual appointment letter and consequential joining it is these twin facets alone which would govern the issue of applicability of the Old or New Pension Scheme. Unless an incumbent is formally inducted into service, he cannot be viewed as having become a member thereof or a holder of a post. The expression "entering services or posts..." cannot be understood as referring to or hinging upon something inchoate or nebulous. Till such time as the incumbent accepts the offer of appointment and joins on the post, his position remains that of someone waiting at the threshold. It is only once he accepts the appointment, the terms and conditions stipulated therein and joins that he is ordained in service. In view of the aforesaid exposition the Court comes to conclude that the expression "entering" cannot be accorded any other interpretation."

¶78This Court further in paragraphs nos. 21 to 23 elaborated the reasons why the judgement of Firangi Prasad (supra) relied upon by this Court in the case of Mahesh Narayan (supra) is not applicable in determining the question of applicability of the Old Pension Scheme or New Contributory Pension Scheme and held in paragraphs 24, 25, 26 and 27 as under:- "24. However these pivotal and crucial aspects appear to have been ignored in Mahesh Narayan. The ex facie distinction between Rule 2(3) and Section 33C has clearly not been borne in mind. This perhaps because Rule 2(3) has not even been independently noticed by the learned Judge. The judgment in Firangi Prasad dealing as it did with the right of regularisation as conferred by Section 33C and the observations made in its backdrop cannot consequently be recognised as laying down a proposition on the basis of which Satyesh Kumar Mishra, Ram Nakul and Bharat Yadav may be said to have been incorrectly decided or be per incuriam.

¶25The decision in Mahesh Narayan insofar as it seeks to draw sustenance from the judgments rendered by the Uttarakhand and Delhi High Courts also does not commend acceptance in light of the aspect which is noticed by the learned Judge in Bharat Yadav, namely, that in none of the decisions rendered by the two High Courts were provisions pari materia to Rule 2(3) shown to apply. On an overall conspectus of the aforesaid, the Court is of the considered view that insofar as the question that arises in this petition is concerned, it must be answered in light of the provisions made in the 1961 Rules and the decisions rendered in Satyesh Kumar Mishra, Ram Nakul and Bharat Yadav have rightly answered the issue by holding that incumbents appointed after 1 April 2005 cannot be recognised as being eligible to claim benefits of the Old Pension Scheme.

¶26The Court additionally notes that the provisions of Rule 2(3) of the 1961 Rules are not assailed. The judgment therefore must necessarily proceed on the basis of that it is that provision alone which governs and must dictate the answer to the question posited. That Rule, as noted above, clearly refers to entry into service as being the determinative factor. None of the petitioners here are shown to have entered into service prior to 01 April 2005. The mere fact that the process of recruitment was initiated prior thereto can be of no assistance to their cause of being governed by the Old Pension Scheme.

¶27The Court also bears in mind the decision of the Division Bench of this Court in Roop Chandra where it was held that a stipulation contained in an appointment order cannot be assailed or questioned after its acceptance. As noticed in the earlier part of this judgment the appointment letter of the petitioners had clearly stipulated that their appointment was to come into force upon their joining. It did not stipulate the appointment coming into effect from some retroactive date. That prescription in the order of appointment was duly accepted without demur or protest. It is not permissible for the petitioners to now and at this point of time to renege from that concession."

¶79In the case of Shaharoz Alam and Others Vs. State of U.P. and Others 2020 (10) ADJ 47, this Court again dismissed the writ petition where the process of recruitment for the post of Constable commenced before the cut-off date, i.e., 01.04.2005 when the new pension scheme came into effect and appointment letters were issued to the petitioners after 01.04.2005. This Court in paragraphs nos. 22 to 25 of the judgement noted the reason that the law laid down in the case of Mahesh Narayan (supra) is based upon the facts in that case and it has no application in the facts of the present case. Thereafter, it proceeded to hold that the judgement of Satyesh Kumar Mishra (supra) is applicable and consequently, this Court upheld the decision of authorities to deny the benefit of the Old Pension Scheme.

¶80In the context of the case in hand, the learned Additional Advocate General has placed reliance upon paragraphs 31, 32, 33, 34, 43 and 52 of the judgement of Shaharoz Alam (supra) which are reproduced herein below:- "31. Similarly, there is mention of judgment of Allahabad High Court in case of Satyesh Kumar Mishra and others vs. State of U.P. and others, as reported in 2016(6) ADJ 808 (LB) where Lucknow Bench of Allahabad High Court referring to the judgment of Supreme Court in case of Sudhir Kumar Kansal Vs. Allahabad Bank as reported in 2011 (2) ESC 243 and also on case of Smt. Rakhi Ray and others Vs. High Court of Delhi and others as reported in 2010 (2) SCC 637 so also on case of Vijoy Kumar Pandey Vs. Arvind Kumar Rai and others as reported in 2013 (11) SCC 611 dismissed the petition filed by Satyesh Kumar Mishra and others wherein petitioners had sought direction to respondents to make necessary deduction towards G.P.F. etc. in view of old pension scheme, which was in existence at the time of notification dated 27.09.2002 issued by Secondary Education Service Selection Board, oblivious of the fact that petitioners had entered into service on 16.04.2005 after coming in effect of the new pension scheme.

¶32Hon'ble Co-ordinate Bench recorded a finding in case of Sudhir Kumar Kansal (supra), to the effect that :- "in a society governed by rule of law, sympathies cannot override the rules and regulations".

¶33Similarly, in case of Rakhi Ray and others (supra) the Supreme Court in para 24 observed that :- "a person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed."

¶34In case of Vijoy Kumar Pandey (supra), the Supreme Court held that :- "preparation of select list or panel does not by itself entitle the candidate whose name figures in such a list/panel to seek appointment or claim mandamus. …...........................*.....................................*......................................*

¶43In the light of decisions of Hon'ble Supreme Court starting from Rafiq (supra), P.S. Rao (supra) Bharat Petroleum Corporation Ltd., (supra) and Bhavnagar University (supra), I find myself sufficiently equipped to hold that under the facts and circumstances of the case, since facts of the present case are different from that of Mahesh Narayan (supra), Firangi Prasad (supra) and Ashok Kumar Singh and another (supra), this Court is of the opinion that in the light of law laid down by Supreme Court in case of Rakhee Ray and others (supra), Vijoy Kumar Pandey (supra) and Sudhir Kumar Kansal (supra) the facts of the judgments referred to in case of Ashutosh Joshi and others, Balwant Singh and others, Inspector Rajendra Singh, Government of National Capital Territory of Delhi, and also that from the cases of Naveen Kumar Jha, Paramanand Yadav, Avinash Singh, Amrendra Kumar, Shoorvir Singh Negi are distinguishable from the facts of the present case. In the present case, as has been discussed above, recruitment was initiated on 06.01.2005, results were declared on

23.04.2005 followed by the medical examination and document verification from 24.04.2005 and therefore, definitely appointment orders were issued after 24.04.2005 whereas the Rules of 2005 had become effective w.e.f.

01.04.2005 i.e., much before the date of declaration of even the results of the petitioner and therefore, there being no parity in case of the petitioners and also in the light of the settled law laid down in case of Roshan Lal Tandon vs. Union of India and others as reported in AIR 1967 SC 1889 wherein it has been held that while exercising the authority under Articles 309, 310 and 311 of the Constitution of India, the terms of service can be altered unilaterally by Government, there is no vested contractual right for the servant." …..............................*......................................*..........................................*

¶52Issue of prospectivity of the Rules is also discussed above. It is settled principle of law that a person attains rights in the matter of service from the date of appointment and not from the date of initiation of the recruitment process. Therefore, this arguments of the petitioners that recruitment was initiated prior to coming into force of the amended Pension Rules has no force."

¶81In the case of Manoj Kumar Singh and Others Vs. State of U.P. & Another 2020 (10) ADJ 479, this Court dismissed the writ petition of the petitioners whose process of recruitment commenced in October 2002, but they were appointed after the introduction of the New Contributory Pension Scheme i.e. 01.04.2005. This Court also proceeded on the principle that the selection process contains different stages and a person does not get any indefeasible or vested right to get the appointment on being selected unless the relevant recruitment rules provide so. Paragraphs 19 and 20 of the judgement are reproduced herein below:- "19. Above view has been consistently followed in State of Bihar Vs. Secretariat Assistant S.E. Union and others, (1994) 1 SCC 126; Union of India Vs. Kali Dass Batish, (2006) 1 SCC 779; Punjab State Electricity Board Vs. Malkiat Singh, (2005) 9 SCC 22; Rakhi Rai Vs. The High Court of Delhi, (2010) 2 SCC 637 and Vijoy Kumar Pandey Vs. Arvind Kumar Rai and others, (2013) 11 SCC 611. The law is clear that merely on being selected a candidate does not acquire an indefeasible right to be appointed unless the relevant recruitment rules so provide. State is not under any duty to fill up all or any of the vacancies. The only exception to the proposition is that State cannot act in an arbitrary manner while making appointment. The limited right in the selected candidate, therefore, is of protection against arbitrary action of the State in denying him appointment.

¶20It is only where right to be considered for appointment after selection had crystallized in favour of candidate but the selected candidate was arbitrarily denied appointment during the applicability of previous pension scheme that the Court while granting relief may also extend such service benefits including pension which were available on the date when such right was denied."

¶82Now in all the cases relied by the learned Additional Advocate General, referred above, this Court has proceeded mainly on the principle that "Recruitment", "Advertisement", "Selection" and "Appointment" are different concepts under the service jurisprudence. It further proceeded that mere selection in recruitment does not give any indefeasible right or confer any vested right upon a selected candidate unless the recruitment rules prescribe so or recruitment agencies have acted arbitrarily. It further proceeded on the basis that once an amendment has been made in Rules, 1961, and rules having been upheld by the Apex Court and being specific and clear that any person appointed after 01.04.2005 shall be governed by the New Contributory Pension Scheme, therefore, the inevitable conclusion is that a person who has joined the service on or after 01.04.2005 shall be governed by the New Pension Rules.

¶83It further held that a distinction exists in law between rules of recruitment and conditions of service. Rules of recruitment regulate the recruitment from issuance of advertisement till issuance of appointment letter whereas the condition of service would come after the appointment is offered. The principle of law which have been considered and relied on by this Court in aforesaid judgements are settled principles of law, and there is no quarrel with the aforesaid proposition of law.

¶84However, the question is whether the proposition of law which has been relied upon by this Court in denying the benefit of the Old Pension Scheme would apply in the facts of the present case and help the respondents in denying the benefit of old pension to the petitioners is the question which needs to be considered.

¶85At this stage, it is relevant to notice that in the case of Mahesh Naraya (supra), the learned Judge in allowing the writ petition considered the judgement of Delhi High Court in the cases of Naveen Kumar Jha Vs. Union of India and Others 2012 SCC Online Delhi 5606 (W.P.(C) No.3827 of 2012) and Government of National Capital Territory (supra) against which, Special Leave Petition has been dismissed by the Apex Court and also the judgement of this Court in the case of Firangi Prasad (supra). The learned Judge after noticing the law enunciated in the aforesaid judgements opined that the judgement of Satyesh Kumar Mishra and Others Vs. State of U.P. and Others 2016(6) ADJ 808 (LB) is per incuriam which has been affirmed by this Court in Special Appeal Defective No.117 of 2021. The Special Leave to Appeal preferred against the judgement of the Appellate Court passed in Special Appeal Defective No.117 of 2021 had also been dismissed by the Apex Court with an observation that the question of law involved in the Special Leave Petition is kept open. Thus, as of today, the finding of the learned Judge in the case of Mahesh Narayan (supra) holding the judgement of Satyesh Kumar Mishra (supra) per incuriam since it did not notice the Division Bench judgement of this Court in the case of Firangi Prasad (supra) has been affirmed by the Division Bench. Therefore, in such view of the fact, the said finding of the learned Single Judge in the case of Mahesh Narayan (supra) as affirmed by the Appellate Court is a binding precedent upon this Court.

¶86It is worth noticing that the learned Single Judge in the case of Kamlesh Kumar Sonakar (supra) again observed on page 23 of the judgement that "It appears that at the time of deciding the matter of Satyesh Kumar Mishra (Supra), judgement of Firangi Prasad (Supra) was not placed before this Court, therefore, without considering the same, decision was given in the matter of Satyesh Kumar Mishra (Supra). Under such facts and circumstances, the judgement of Satyesh Kumar Mishra (Supra) is per incuriam and cannot be treated as precedent in the present case and will not come to the rescue of respondents."

¶87The judgement of Kamlesh Kumar Sonakar (supra) has been affirmed by the Division Bench of this Court in Special Appeal Defective No.116 of 2021. Therefore, the observation/finding of this Court that the judgement of Satyesh Kumar Mishra (supra) is per incuriam has been affirmed by the Division Bench in Special Appeal and has attained finality as the respondent has not placed before this Court any material indicating that the order of Special Appeal Court in the case of Kamlesh Kumar Sonakar (supra) has been assailed by filing Special Leave Petition before the Apex Court.

¶88None of the judgements of this Court relied upon by the respondents, referred above, has considered the ramification of affirmation of the judgement of Mahesh Narayan (supra) and Kamlesh Kumar Sonakar (supra) by this Court in Special Appeal Defective No.117 of 2021 and Special Appeal Defective No.116 of 2021 and also the judgement of Apex Court dated 28.02.2022 dismissing the Special Leave Petition against the judgement of Special Appeal Court in Mahesh Narayan (supra) case.

¶89Further, the aforesaid judgements relied upon by the respondents have not delved upon the issue whether the State without disclosing any justifiable reason for the inordinate delay in completing the process of selection can deny the benefit of the Old Pension Scheme to the selected candidates and such denial by the State is an arbitrary exercise of power of the State.

¶90At this stage, this Court may refer to paragraph 18 of the judgement of the Delhi High Court in the case of Inspector Rajendra Singh (supra) wherein the Delhi High Court observed that basic terms and conditions of service, such as the right to receive pension upon superannuation, as applicable at the time of notification of the posts cannot be altered to the prejudice of the selected candidates on the post after commencement of selection process.

¶91The judgement of the Delhi High Court in the case of Inspector Rajendra Singh (supra) was upheld by the Apex Court since the Special Leave Petition preferred against the said judgement was dismissed by the Apex Court on 08.01.2018. Thus, paragraph 18 of the judgement of the Delhi High Court in the case of Inspector Rajendra Singh (supra) holding that basic terms and conditions of selection to the detriment of the incumbents to the post cannot be altered after the commencement of selection process has been affirmed by the Apex Court. Consequently, the petitioner was placed in the Old Pension Scheme despite the fact that he was given the appointment after the commencement of the New Pension Scheme i.e. 01.01.2004. The fact of the present is similar to the facts of the case in Inspector Rajendra Singh (supra) inasmuch as in the instant case the selection to the post of Lekhpal commenced in 1999-2000 and concluded in June 2005 after the commencement of New Pension Scheme, and in the case of Inspector Rajendra Singh (supra) the selection process started much before commencement of New Pension Scheme introduced by the Central Government and completed after 01.01.2004 i.e. commencement of New Pension Scheme.

¶92In the case of Chintels India Limited Vs. Bhayana Builders Private Limited (2021) 4 SCC 602, the Apex Court in paragraph 31 held that "judgments are not to be construed like Euclid's theorems (see Amar Nath Om Prakash v. State of Punjab (1985) 1 SCC 345), but all observations made therein must relate to the context in which they were made...."

¶93This Court now proceed to consider in the light of the proposition of law laid in paragraph 31 of the judgement in the case of Chintels India Limited (supra) whether the law propounded in the case of Rakhi Ray (supra) and Vijoy Kumar Pandey (supra) that a candidate does not get indefeasible right to be appointed on mere selection would be attracted and applicable in the facts of the present case.

¶94The facts in the case of Rakhi Ray (supra) was that an advertisement to fill up 20 vacancies in the cadre of District Judge in Delhi was issued. Out of which, 13 posts were to be filled up from general candidates, 3 from Scheduled Caste and 4 from Scheduled Tribes. The appellants were much below in the waiting list and all the 13 vacancies in the general category were filled up according to the merit list of general category candidates. The appellants claimed appointment on the ground that the Delhi High Court while making the advertisement did not take note of the anticipated vacancies which could be available during the next year. Accordingly, they claimed that as per the direction of the Apex Court in the case of Malik Mazhar Sultan (3) Vs. U.P. Public Service Commission those vacancies must be filled up from the select list so prepared and since the appellants were in the select list, therefore, they should be offered appointment. In such a factual backdrop, the Apex Court held that filling of vacancies over the notified vacancies amounts to filling up of future vacancies which is not permissible in law. Consequently, the Apex Court held that the selection of a candidate does not give him an indefeasible right to be appointed.

¶95Similarly, the case of Vijoy Kumar Pandey (supra) is a case where against the vacant post of Headmaster at Howrah Shiksha Niketan as many as 5 candidates applied for appointment to the School Service Commission, West Bengal. The Commission found two of those applying for the post to be ineligible, the remaining three were eligible for consideration. One of the candidates found ineligible questioned the rejection of his candidature in Writ Petition Po. 6117(W) of 2004 before the Calcutta High Court and obtained an interim order staying publication of the panel. The said order remained in operation till 2009 when the Writ Petition No.6117 (W) of 2004 was dismissed as withdrawn.

¶96The learned Single Judge of Calcutta High Court while dismissing the writ petition vacated all the interim orders, but directed that the period during which the panel could not be operated due to the interim order passed in the writ petition be excluded for computing the life of the panel. However, the School Service Commission took no further steps in the matter nor published the panel. This led to the filing of the Writ Petition No.5866 (W) of 2009 by one Arvind Kumar Rai in which he sought a mandamus directing the School Service Commission to recommend his name for appointment against available vacancies. The writ petition of Arvind Kumar Rai was dismissed by learned Single Judge vide order dated 27.07.2009 holding that the direction sought cannot be issued as during the intervening period of 5 years several other candidates would have acquired eligibility for consideration/appointment against the post of Headmaster of the school and that in fairness to all of them, they ought to be given a chance to offer their candidature.

¶97Against the said order, an appeal was filed by Arvind Kumar Rai which was allowed by the Calcutta High Court. Besides this, two more appeals were also preferred challenging the order of the Appellate Court against the judgment dated 27.07.2009 passed in Writ Petition No.5866(W) of 2009. In such a factual backdrop, the Apex Court held that when the panel was not prepared and published, the claim of the respondent-Arvind Kumar Rai for appointment based on such a non-existent panel is untenable. The Apex Court held that the publication of the select list or panel does not by itself entitle a candidate whose name figures in such select list/panel to seek an appointment or claim mandamus which could for good and valid reasons be scrapped by the competent authority along with the entire process that culminated in the preparation of such panel.

¶98The principle of law that a candidate does not get any indefeasible right for appointment only because his name appeared in the select list has been postulated in cases where the name of a candidate figured in the select list and he was not offered appointment. So the law laid down by the Apex Court in the case of Rakhi Ray (supra) and Vijoy Kumar Pandey (supra) has no application in the facts of the present case since in the present case petitioners have been offered appointment pursuant to their selection and they have joined, and their grievance is that they cannot be denied the benefit of Old Pension Scheme for the inaction of respondents in culminating the selection process with the inordinate delay of more than five years from the start of the selection process which commenced with the publication of advertisement in the year 1999-2000 inviting application for appointment on the post of Lekhpal.

¶99Now in the instant case, the undisputed facts are that the advertisement for selection for the post of 'Lekhpal' was issued in the year 1999-2000. The selection process commenced in the year 2001 and the Board by letter dated 03.12.2001 scheduled the training programme. However, the training programme was postponed by the Board by letter dated 27.12.2001 on account of the stay order passed by the Apex Court in Writ Petition (C) No.488 of 2001 which was later dismissed as infructuous.

¶100After the dismissal of the said writ petition, the State Government issued a Government Order dated 12.04.2003 directing the concerned authorities to finalise the selection proceedings which had already been initiated. In compliance thereof, the Commissioner and the Secretary of the Board of Revenue informed the District Magistrate of all districts to complete the selection proceedings/interview and declare the final result so that the successful candidates may take admission in the Lekhpal Training School by 22.05.2003 and they may be sent for training. In compliance thereof, the petitioners were admitted to Lekhpal Training School in the session 2003-04, and they completed their training in the year 2004 and written examination was conducted in the month of August 2004 and their result was declared on 17.05.2005.

¶101At this stage, it would be apposite to have a glance at the scheme contemplated under the U.P. Manual to complete the Lekhpal training within the time schedule provided in the Rules of U.P. Manual.

¶102Rule 213 of the U.P. Manual provides for the procedure for making the selection from eligible candidates for admission to Lekhpal school.

¶103Rule 213(1)(i) of the U.P. Manual prescribes that the District Magistrate shall publish an advertisement by fixing 31st March inviting applications for admission to Lekhpal Training School. It further mandates the District Magistrate to clearly state in the advertisement the term of training and emoluments which they will receive on appointment to the post. So, reading of Rule 213(1)(i) reflects that after completion of training, the candidates shall become entitled to appointment and shall be paid emoluments as stated in the advertisement.

¶104It is also relevant to note that the selection for admission to the Lekhpal Training School shall be made by the Collector on the basis of competitive examination in the subjects including viva-voce provided in Rule 213(iii). The Collector, thereafter under rule 2 of Rule, 213, shall by the middle of May report to the Commissioner of the Division in the appended form the number of candidates selected by him. Thereafter the commissioner will communicate the list of candidates to be trained in the Lekhpal Training School of his division giving sufficient time to the District Officer concerned before appointment.

¶105Rule 220 of the U.P. Manual states that the school term will commence on the 1st of July of each year and end with the examination in the month of May following.

¶106Rule 221 provides that the examination shall be held in May every year on the dates which will be fixed by the Director. It further provides that a candidate would be eligible to participate in the examination after attending the minimum percentage of class as provided in the said Rule.

¶107Rule 223(vi) mandates that selected examiners shall send the result sheets and answer books to the Collector concerned within a fortnight of the date of examination. The consolidated statement of the result of the examination shall be prepared by the President of the Committee and sent by the Collector to the Director not later than one week after the result sheets are received from the examiners. It further provides that the Director may call for the answer books, and either revise the marking or ask the examiner or the Committee to reconsider it. The answer books shall be kept for six months from the date of acceptance of the results by the Director.

¶108A conspectus view of the rules of the U.P. Manual, extracted above, discloses that it provides a time frame for admission to U.P. Lekhpal Training School for selected candidates, and after successful completion of the Lekhpal training course and obtaining Lekhpal School Certificate, they shall be appointed on the posts advertised.

¶109The scheme as provided in the U.P. Manual for conducting the examination appears to have been made with an object to fill up the vacancies of Lekhpal without delay so that the work to be discharged by the Lekhpal in the village should not suffer. To achieve the said object, specific time frame has been provided to complete different stages of selection so as to appoint the Lekhpal without any delay.

¶110As noted above, under the scheme of the U.P. Manual for admission, a time frame has been provided to complete the selection process and after that, all the candidates who have successfully completed the Lekhpal Training and have obtained Lekhpal Training Certificate shall be appointed as per Rules 5 to 7 of Rules 1958 on the post advertised.

¶111The process of selection in the case in hand commenced in the year 1999-2000 and the selection process was completed in the year 2001. The Board vide letter dated 03.12.2001 scheduled the training programme. However, the petitioners could not go for training as scheduled because of the stay order passed by the Apex Court in Writ Petition (C) No.488 of 2001. Later on, the writ petition before the Apex Court was dismissed as infructuous. Thereafter, the State Government issued the Government Order dated 12.04.2003 for finalising the selection process. In consequence thereof, the Commissioner and the Secretary, Board of Revenue issued a Circular dated 01.05.2003 providing for the completion of the admission process of the petitioners by 22.05.2003. So, the term of petitioners may commence on the 1st of July and end with the examination in May following as per Rule 221 of the U.P. Manual.

¶112There is no whisper by the respondents in the counter affidavit stating any reason for the delay in completing the session of the petitioners in August 2004 whereas it should have been completed by May 2004 as per Rule 221 of U.P. Manual.

¶113Further, a reading of Rule 223(vi) of the U.P. Manual reveals that a time frame has been provided so that the result may be declared expeditiously without any delay.

¶114In the instant case, though the examination of the petitioners should have been completed by May 2004 in view of Rule 221 of the U.P. Manual, but it was done in the month of August, 2004, and the result was declared in the month of April 2005 which was against the mandate of rules of U.P. Manual specifying time schedule for training of selected candidates in Lekhpal Training School.

¶115The inordinate delay in concluding the selection process cannot be attributed to the petitioners. Because of inordinate delay in completing the selection process, petitioners cannot be put to disadvantage or cannot be made liable to suffer and denied the benefit of the old pension to which they were entitled under Rule 30 of Rules, 1958 if the session of Lekhpal training school would have been completed as per Rules 220 & 221 of U.P. Manual and result of the petitioners had been declared as per Rule 223(vi) of U.P. Manual.

¶116Under Rules, 1958, once a candidate completes the Lekhpal training and obtains a Lekhpal training certificate, he shall be appointed as per Rule 7(1) of Rules, 1958 on the posts advertised.

¶117In the instant case, it is evident from the advertisement that the selection for admission to Lekhpal Training School had been made against the posts notified in the advertisement. Thus, petitioners after completing the Lekhpal training and obtaining the Lekhpal training certificate are entitled to be appointed to the post under Rule 7 of Rules, 1958. Thereby, their right to get appointed accrued to them on completion of training and obtaining Lekhpal training certificate from the Lekhpal Training School on the vacancies notified in the advertisement which is also fortified from the reading of Rule 213(1)(i) of U.P. Manual which unequivocally prescribes that the advertisement inviting application for admission in Lekhpal Training School shall also state the term of the training and emoluments payable to them on appointment.

¶118So, in the present case, the appointment of a candidate only depended upon the successful completion of training in Lekhpal Training School and nothing else. In such view of the fact, the proposition of law that a candidate does not get any indefeasible right merely because his name appeared in the select list is not attracted.

¶119There is no quarrel that after an amendment in Rules, 1961, a person appointed after 01.04.2005 shall be governed by the New Contributory Pension Scheme. However, in the instant case, the petitioners are not aggrieved by the amendment in Rules, 1961 rather they are aggrieved by the inaction on the part of the State Government in causing the inordinate delay of about six years in completing the selection process and the respondents have not cared to disclose any reason for causing such an inordinate delay in concluding the selection.

¶120It is also pertinent to note that the specific case of the petitioners in the writ petition was that the inordinate delay of about six years in completing the selection process was attributable to the State Government and petitioners cannot be made liable to suffer for this, but respondent/state did not disclose the reasons for the delay in concluding the selection. The respondents did not think it appropriate to utter in the counter affidavit the reasons for the inordinate delay of about six years in concluding the selection process. If the State had stated justifiable reason in the counter affidavit for the inordinate delay in concluding the selection process, the State was right in denying the benefit of the Old Pension Scheme to the petitioners.

¶121At this stage, it may also be worth noticing that the State may be justified in deferring the selection because of the stay order passed by the Apex Court in Writ Petition No.488 of 2001, but that writ petition was dismissed in the year 2003, and thereafter, a time bound schedule was given by the Commissioner and Secretary, Board of Revenue to conclude the selection. The State has not given any reason for the delay in concluding the Lekhpal Training Course within the time frame prescribed under Rule 220 and Rule 221 of the U.P. Manual and not declaring the result of the examination held in August 2004 expeditiously as contemplated under Rule 223(vi) of the U.P. Manual. The result was declared by the respondents after more than eight months from the date of examination without stating the reason for the delay of eight months in declaring the result.

¶122In such view of the fact, this Court finds that the action of the State Government has resulted in denial of the valuable right of pension which was available to them till the commencement of the New Contributory Pension Scheme w.e.f. 01.04.2005.

¶123It is also pertinent to note that the case of the petitioners is also covered by the judgement of this Court in the case of Mahesh Narayan (supra) and also in the case of Firangi Prasad (supra) of this Court and various other judgements which have been relied upon by the learned counsel for the petitioners and referred to in the earlier part of the judgement.

¶124Thus, judgements relied upon by the respondents are of no help to them as the ratio laid down in those judgements is not applicable more so when the judgement of Mahesh Narayan (supra) & Kamlesh Kumar Sonakar (supra) wherein this Court held the judgement of Satyesh Kumar Mishra (supra) per incuriam has been upheld by the Appellate Court in Special Appeal and the Apex Court dismissed the Special Leave Petition filed against the judgement of Special Appellate Court in the case of Mahesh Narayan (supra).

¶125At this stage, it is relevant to point out that the State Government has adopted a New Contributory Pension Scheme following the new pension scheme implemented by the Union of India which is also evident from the notification dated 28.03.2005. However, the Union of India accepting the various judgements of the Delhi High Court affirmed by the Apex Court later issued a notification dated 17.02.2020 whereby it has given the option to its employees whose selection for the appointment was finalised before 01.01.2004, but who joined the government service on or after 01.01.2004 to opt either for Old Pension Scheme or New Pension Scheme. The reason for extending the said benefit by the Government of India is evident from the notification that the delay in appointment was on account of administrative reasons and was not attributable to the Government servant. Paragraph 3 of the notification dated 17.02.2020 is reproduced herein below:- "3. From the representations of the Government employees and the references received from Ministries/Departments, it has been observed that in many of the cases referred to this Department, selection process (including written examination, interview and declaration of result) for recruitment had been completed before 01.01.2004 but the employee joined the Government service on or after 01.01.2004. A few illustrations where the selection was finalized before 01.01.2004 but actual joining took place on or after

01.01.2004 are as under:-

(i). The result for recruitment was declared before 01.01.2004 but the offer of appointment and actual joining of the Government servant was delayed on account of police verification, medical examination etc.

(ii). Some of the candidates selected through a common selection process were issued offers of appointment and were also appointed before

01.01.2004 whereas the offers of appointment to other selected candidates were issued on or after 01.01.2004 due to administrative reasons/constraints including pending Court/CAT cases.

(iii). Candidates selected before 01.01.2004 through a common competitive

examination

were

allocated

to

different Departments/organization. While recruitment process was completed by some Department(s)/organizations appointment to the candidates allocated to the other Departments/organization were issued on or after

01.01.2004.

(iv). Offers of appointment to selected candidates were made before

01.01.2004 with a direction to join on or after 01.01.2004.

(v). Offers of appointment were issued to selected candidates before

01.01.2004, and many/most candidates joined service before 01.01.2004. However, some candidates(s) were allowed extension of joining time and they joined service on or after 01.01.2004. However, their seniority was either unaffected or was depressed in the same batch or to a subsequent batch, the result for which subsequent batch was declared before

01.01.2004.

(vi). The result for recruitment was declared before 01.01.2004 but on or more candidates were declared disqualified on the grounds of medical fitness or verification of character and antecedents, caste or income certificates. Subsequently, on review, they were found fit for appointment and were issued offers of appointment on or after 01.01.2004. In all the above illustrative cases, since the result for recruitment was declared before 01.01.2004, denial of the benefit of pension under CCS (Pension) Rules, 1972 to the affected Government servants is not considered justified."

¶126Similarly, a notification dated 03.03.2023 has been issued by the Union Government whereby it has extended the benefit of the Old Pension Scheme to those Central Government employees who were recruited against the posts/vacancies advertised/notified for recruitment on or before 22.12.2003.

¶127Paragraphs 3 & 4 of the notification disclose the reason for covering those employees under the Old Pension Scheme who have been appointed against the posts/vacancies advertised/notified for recruitment on or before 22.12.2003 which are reproduced herein below:- "3. Representations have been received in this Department from the Government servants appointed on or after 01.01.2004 requesting for extending the benefit of the pension scheme under Central Civil Services (Pension) Rules, 1972 (now 2021) on the ground that their appointment was made against the posts/vacancies advertised/notified for requirement prior to notification for National Pension Scheme, referring to court judgements of various Hon'ble High Courts and Hon'ble Central Administrative Tribunals allowing such benefits to applicants.

¶4The matter has been examined in consultation with the Department of Financial Services, Department of Personnel & Training, Department of Expenditure and Department of Legal Affairs in the light of the various representations/references and decisions of the Courts in this regard. It has now been decided that, in all cases, where the Central Government civil employee has been appointed against a post or vacancy which was advertised/notified for recruitment/appointment prior to the date of notification for National Pension Scheme i.e. 22.12.2003 and is covered under the National Pension Scheme on joining service on or before 01.01.2004, may be given one-time option to be covered under the CCS (Pension) Rules, 1972 (now 2021). This option may be exercised by the concerned Government servants latest by 31.08.2023."

¶128In the light of notifications dated 28.03.2005 and 03.03.2023, referred to above, respondents have been granted time by this Court to state their stand. The order of this Court dated 05.04.2023 in connected Writ-A No.42840 of 2015 reads as under:- "Heard learned counsel for petitioners and learned counsel for respondents. Annexure-1 to the rejoinder affidavit contains the notification of the Central Government dated 03.03.2023, relevant portion of which reads as follows: "The matter has been examined in consultation with the department of Financial Services, Department of Personnel & Training, Department of Expenditure and Department of Legal Affairs in the light of the various representations/references and decisions of the Court in this regard. It has now been decided that, in all cases where the Central Government civil employee has been appointed against a post or vacancy which was advertise/notified for recruitment/appointment, prior to the date of notification for National Pension System i.e. 22.12.2003 and is covered under the National Pension System on joining service on or after

01.01.2004, may be given a one time option to be covered under the CCS (Pension) Rules, 1972 (now 2021). This option may be exercised by the concern Government servants latest by 31.08.2023" Thus, the Central Government has already come out with the policy giving an option to its employees for old pension scheme in cases where the advertisement for the post was made prior to date of notification for National Pension Scheme i.e. 22.12.2003 irrespective of the fact that appointments were made on or after 01.01.2004 i.e. National Pension Scheme was brought into force. It is stated that it is normal for the State Government to follow the policy of the Central Government, therefore, the learned Standing Counsel is granted ten days time to complete instructions from respondent no.1-Principal Secretary Department of Revenue as to whether the State intends to follow the said notification. Rejoinder affidavit is taken on record. Put up this case on 18.04.2023 in the additional cause list amongst top ten cases.

¶129This Court on 18.04.2023 had again granted a week time on the request of the learned Additional Advocate General to seek instruction in the light of the order dated 05.04.2023 passed by this Court. The order dated 18.04.2023 reads as under:- "Sri Neeraj Tripathi, Additional Advocate General prays some further time to seek instructions in respect to the order passed by this Court on 05.04.2023. Accordingly, a week's time is granted to Sri Neeraj Tripathi, Additional Advocate General to come out with a positive statement as to whether the State Government is inclined to follow the policy notified by the Central Government vide notification dated 03.03.2023. List this case on 26.04.2023."

¶130However, the State Government despite the order passed by this Court asking time to take a decision for grant of benefit of Old Pension Scheme in view of the notification dated 03.03.2023 did not take any decision. The New Contributory Pension Scheme introduced by the State Government is in consonance with the New Contributory Pension Scheme adopted by the Central Government. The Central Government on the representation of its employees found that delay in completing the selection process in respect of posts/vacancies advertised/notified for recruitment on or before 22.12.2003 was not attributable to the employees and was beyond the control of employees and accepted the judgements of various Courts extending the benefit of Old Pension Scheme to the employees, who have been recruited against the posts/vacancies advertised/notified on or before 22.12.2003. Therefore, this Court does not find any valid reason to deny the benefit of the Old Pension Scheme to the petitioners as the selection process in the instant case commenced in the year 1999-2000 and took about six years to culminate, and the inordinate delay of about six years in concluding the selection process was attributable to the State Government.

¶131It is also worth noticing that the two notifications dated

17.02.2020 and 03.03.2023 issued by the Central Government granting the benefit of the Old Pension Scheme to its employees falling within the ambit of the aforesaid two notifications by accepting the judgements of various Courts affirmed by the Apex Court were not in existence when the cases relied upon by the learned counsel for the respondent/State were decided. For this reason, also, the judgements on which reliance has been placed by the learned Additional Advocate General are distinguishable and do not come in aid to the respondents in denying the claim of Old Pension Scheme to the petitioners.

¶132Now, so far as the contention of the learned Additional Advocate General that the letter of appointment of the petitioners stipulates that they shall be governed by the new pension scheme is concerned, the perusal of appointment letters of petitioners discloses that there is no such stipulation in the appointment letters of the petitioners.

¶133So far as the submission of the learned Additional Advocate General that petitioners have been appointed in the year 2005 and have raised the grievance for not extending them the benefit of Old Pension Scheme after inordinate delay is concerned, the similar objection was raised by the Central Government in the case of Inspector Rajendra (supra) before the Delhi High Court and the Delhi High Court in paragraph 39 of the judgement repelled the said contention holding that if delay has resulted in unsettling things already settled, the relief may be declined on the ground of delay, but in the instant case, the grant of relief would not result in unsettling things already settled and the judgement of Delhi High Court in the case of Inspector Rajendra (supra) has been affirmed by the Apex Court as Special Leave to Appeal preferred against the said judgement has been dismissed.

¶134Even otherwise, the benefit of pension will accrue to the employees after they retire, therefore, the writ petitions are not liable to be dismissed on the ground of delay in raising the grievance by the petitioners with regard to their claim for Old Pension Scheme. The law is also settled that the pension is a recurring cause of action, and for this reason, also, the writ petitions cannot be dismissed on the ground of delay and laches.

¶135Now so far as the contention of the learned Additional Advocate General that the claim of petitioners was rejected in the year 2016 which is evident from page 157 of the paper book of the writ petition and petitioners have not challenged the rejection of their claim, this Court may note that said rejection of claim of petitioners have been noted in the file of the department and no order rejecting the claim of petitioners has been supplied to the petitioners. Further, the petitioners continued to raise their grievance against the rejection of their claim and their claim as stated by the respondents in the counter affidavit had been rejected by the Finance Department on 26.11.2019. However, the counter affidavit does not indicate that any order rejecting the claim of the petitioners has been communicated to the petitioners.

¶136The remedy under Article 226 of the Constitution of India is discretionary and if petitioners have made out a case that the action of the State Government is arbitrary and is hit by Article 14 of the Constitution of India, rejection of their claim on a technical ground will defeat the purpose of justice since the paramount consideration of the Court in deciding a dispute is to do substantial justice and not to defeat the justice on technical grounds. In such view of the fact, this Court in a given case under Article 226 of the Constitution of India which is a discretionary power conferred to constitutional courts under the Constitution of India can mould the relief and grant the same to subserve the interest of justice. Accordingly, the aforesaid contention of the learned Additional Advocate General does not stand to merit in the present case and deserves to be rejected.

¶137Thus, for the reasons given above, the action of the respondents in denying the benefit of the Old Pension Scheme to the petitioners is declared illegal. Accordingly, all the writ petitions are allowed and respondents are directed to place the petitioners and other similarly situated employees under the Old Pension Scheme. There shall be no order as to costs. Order Date:-26.10.2023 Sattyarth High Court of Judicature at Allahabad

AFR Reserved on 03.05.2023 Delivered on 26.10.2023 Case :- WRIT - A No. - 18197 of 2021 Petitioner :- U.P. Lekhpal Sangh Through Its Treasurer Vinod Kumar Kashyap Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- S.K. Srivastava,Kailash Nath Singh,Sr. Advocate Counsel for Respondent :- C.S.C. With Case :- WRIT - A No. - 42840 of 2015 Petitioner :- Pramod Kumar Srivastava And 50 Ors. Respondent :- State Of U.P. And 2 Ors. Counsel for Petitioner :- Siddharth Khare,Ashok Khare Counsel for Respondent :- Govt. Advocate With Case :- WRIT - A No. - 18159 of 2021 Petitioner :- Ankur Chowdhary And Anothers Respondent :- Principal Secretary, Revenue Govt. Of U.P. And 3 Others Counsel for Petitioner :- S.K. Srivastava,Sr. Advocate Counsel for Respondent :- C.S.C. & Case :- WRIT - A No. - 4660 of 2021 Petitioner :- Vikas Sachan And 47 Others Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Krishnaji Khare,Shashibind Kumar Srivasatava Counsel for Respondent :- C.S.C. Hon'ble Saral Srivastava,J. 1. Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Kailash Nath Singh, learned counsel for the petitioner and Sri Neeraj Tripathi, learned Additional Advocate General assisted by Sri Shashank Shekhar, learned Additional Chief Standing Counsel for the respondents. 2. Since the controversy involved in the aforesaid writ petitions are identical, therefore, all writ petitions are being decided together with this common judgement. 3. For convenience, the facts are being delineated from Writ-A No. 18197 of 2021. 4. The petitioners by means of the present writ petition have prayed for the following relief:- "I. Issue a writ, order or direction in the nature of mandamus directing the respondents to treat the petitioner Nos.3 to 8 and similarly situated other Lekhpals whose selection and training were completed in the Session year 2003-04 upto August, 2004, prior to 01/04/2005 on the date enforcement of New Pension Scheme and same may be treated as governed by the Old Pension Rules. ii. Issue a writ, order or direction in the nature of mandamus directing the respondents to make a regular deduction towards General Provident Fund (under Old Pension Rules) instead of deduction in terms of new Pension Scheme regularly every month from the salary of the petitioners. iii. Issue any other suitable writ order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case to meet the end of justice. iv. Award the cost of the writ petition to the petitioners." 5. The facts in brief are that petitioner no.1 is an organisation of the Government of Uttar Pradesh Employees (hereinafter referred to as 'Sangh') posted in the revenue department on the post of Lekhpal. The petitioner no.2 being Treasurer has been authorised by the Sangh to file the present writ petition. The petitioners nos.3 to 8 are also members of the Sangh and are working as Lekhpal in different districts and are entitled to the relief prayed for in the writ petition. 6. The post of Lekhpal is a Non-Gazetted Subordinate Service (Group-C) post and comes under the revenue department. The service conditions of the Lekhpal are governed by the U.P Lekhpal Service Rules, 1958 (hereinafter referred to as 'Rules, 1958'). 7. It appears that the Board of Revenue wrote a letter to the District Magistrates of different districts to make the appointment for the post of Lekhpal. In pursuance of the said letter, the District Magistrates started selection proceedings and issued an advertisement in respect to their districts. An Advertisement No.492/7-Bhulekh dated 04.02.1999 was issued by the District Magistrate, Shahjahanpur inviting applications for selection for recruitment against 32 posts of Lekhpal in District Shahjahanpur. Similarly, the District Magistrate, Jaunpur issued an Advertisement No.636/7-Bhulekh dated 27.02.1999 for recruitment against 97 posts of Lekhpal in District Jaunpur. The District Magistrate, Baghpat by advertisement d