Ama Tajo and 94 Ors v. The State of Ap and 5 Ors

JUDGMENT & ORDER (ORAL) (31.01.2024) Heard Shri M. Chanda, learned counsel for the petitioners and Shri S. Tapin, learned Senior Government Advocate, Arunachal Pradesh.

¶295 numbers of petitioners have joined together in this writ petition with amongst others, the principal grievance relating to their pension.

¶3The petitioners are working as Head Warden/ Jail Warden in the Jail Department which is under the Inspector General of Prisons of the State of Arunachal Pradesh.

¶4The grievance of the petitioners, as indicated above, is treating them to be covered by the New Pension Scheme (for short, 'NPS'). To be more particular, the grievance is against a communication, dated 22.07.2021 issued by the authorities, by which, it has been laid down that employees who were appointed on or after 01.01.2008 would be covered by the NPS scheme.

¶5The case of the petitioners is that the recruitment process through which they were inducted in the services was pursuant to an advertisement, dated 19.03.2007. The petitioners had participated in the recruitment process which had consisted of various segments including Page No.# 14/17 physical fitness and interview and accordingly, a merit list was published on 14.12.2007 by notifying 100 numbers of selected candidates for the post of Jail Warden and in that list, the names of the petitioners were included. Consequently, the petitioners were appointed on 15.02.2008 and they were issued offer letter on 15.02.2008 subsequently to which they were formally appointed. The Finance Department however had issued a notification dated 17.11.2007 by which, the new pension scheme was introduced w.e.f. 01.01.2008. It is stipulated that it would be applicable to all new entrants to the State services who were appointed on or after

01.01.2008.

¶6It is the case of the petitioners that their selection for appointment was prior to 01.01.2008 which is the cut-off date as per the notification and therefore, they are entitled to the benefit of GPF and should be covered by the old pension scheme under the CCS (Pension) Rules, 1972 in terms of the O.M. dated 17.02.2020 issued by the Department of Pension, Government of India.

¶7Shri Chanda, learned counsel for the petitioners has submitted that the cut-off date is to be examined from the point of view of the date when the vacancy which was existing was sought to be filled up. He submits that there is no manner of doubt that the recruitment process was initiated on 19.03.2007 which is much prior to the cut-off date of

01.01.2008. He submits that even the select list was dated 14.12.2007 and the appointment of the petitioners were incidentally made after Page No.# 15/17

01.01.2008 which should not deprive them of their entitlement to be placed and governed by the old pension scheme.

¶8The learned counsel for the petitioners have relied upon a number of judgment in this regard including a judgment dated 04.02.2022 of the Division Bench of this Court in WP (C) 7369/2021 (Sanjay Kumar and Another-vs-Union of India & Others). The Hon'ble Division Bench vide the judgment dated 04.02.2022 which was dealing with a similar issue which was in connection from an order passed by the Central Administrative Tribunal had held that it is the date on which the recruitment process was initiated which would be crucial to determine as to under which scheme the appointees would be covered.

¶10For ready reference, the observation made in Paragraph Nos. 19 & 23 of the said judgment are extracted hereinbelow:- "19…In the several judgments referred to by the petitioners of the Delhi High Court as well as by the Uttarakhand High Court, it is seen that the consistent view of High Courts in the said matters is that where the process of recruitment have been initiated in the year, 2003 merely because the appointment orders were issued subsequently in the year, 2004 or later, such delay not being attributable to the appointees or the recruitees, the benefit of the Old Pension Scheme which was replaced by the New Pension Scheme from 01.01.2004 cannot be denied to such recruitees/appointees who had applied for, were duly scrutinized" "23…In the facts of the present case as there is no dispute that when Page No.# 16/17 the advertisement was issued in the year, 2003 and the selection process had commenced, the Old Pension Scheme was in force. The Judgments of Delhi High Court and the Uttarakhand High Court were rendered on facts which are similar to the facts in the present case. The petitioners had also agitated their grievances by their representation dated 30.08.2017 before the respondent authorities. In the detailed representation preferred before the authorities the petitioners referred to the orders passed by the Uttarakhand High Court in State of Uttarakhand and Ors-vs-Balwant Singh and Others., and by the Delhi High Court in Parma Nand Yadav and Ors-vs-Union of India and Ors., as well as order passed by the Central Administrative Tribunal, Ernakulam Bench and the Central Administrative Tribunal, Jabalpur Bench. The said representation however came to be rejected by communication dated 11th December, 2017. Pursuant to which the petitioners approached the Central Administrative Tribunal, Gauhati Bench".

¶11Shri S. Tapin, learned Senior Govt. Advocate, Arunachal Pradesh fairly submits that in view of the law laid down by the Hon'ble Division Bench of this Court which has attained finality and also the case laws referred to on behalf of the petitioners, there would not be much scope to take a contrary view.

¶12This Court had noticed that there is no ambiguity with the factual position that the recruitment process was initiated vide Advertisement dated 19.03.2007 which would obviously mean that the vacancies in which Page No.# 17/17 the petitioners were appointed were existing at that point of time. Even the final select list is dated 14.12.2007 which is prior to the cut-off date of

01.01.2008 and it is a matter of mere chance that the petitioners were not appointed immediately on publication of the select list but after

01.01.2008. This Court is of the unhesitant opinion that the date of the appointment would not be crucial and the crucial date is the date on which the recruitment process was initiated which admittedly is prior to the cut-off date.

¶13In view of the aforesaid discussions, the instant writ petition stands allowed and the impugned communication dated 22.07.2021 is interfered with and consequently, it is directed that the petitioners be held to be covered under the old pension scheme and benefits thereunder be granted to them in accordance with law.

JUDGE Talom

JUDGE Comparing Assistant

Page No.# 1/17 GAHC040005122023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : WP(C)/190/2023 Ama Tajo and 94 Ors. Son of Shri Nampam Tajo, Working as Jail Warden, Office of Superintendent of Jail, Jail Headquarter, Jully, District Papumpare, Itanagar, Arunachal Pradesh, PIN 791113 2: Arvind Kumar Yadav 3: Amarjyoti Singh 4: Biri Nillo 5: Chijum Gadi 6: Damnya Gamlin Page No.# 2/17 7: Dopu Nima 8: Godak Raja 9: Gebu Jama 10: Gebi Romin 11: Gejom Rakshap 12: Henjom Taipodia 13: Jayanand Singh 14: Karmik Riba 15: Kago Chatung Page No.# 3/17 16: Kago Chobin 17: Kholi Dania 18: Lingdung Komi 19: Manoj Kumar Mishra 20: Mani Kant Pandey 21: Madhu Sudan Mishra 22: Marlar Gamkak 23: Mito Gamlin 24: Miyi Lona Page No.# 4/17 25: Nijum Yinyo 26: Nitesh Kumar Jha 27: Nabam Dui 28: Netandorjee Singchaji 29: Pura Hangu 30: Puken Gamin 31: Padu Tagyung 32: Raj Gogoi Page No.# 5/17 33: Remuk Romin 34: Rikbom Gamlin 35: Rinchin Khandu Musobi 36: Subu Riku 37: Shashi Bhushan Pandey 38: Satya Prakash Singh 39: Sancha Desisow 40: Sadap Tok 41: Taba Yomcha Page No.# 6/17 42: Taku Taller 43: Tai Kere 44: Tade Magria 45: Tagi Magria 46: Anita Moni Pegu 47: Bompi Likar 48: Meme Tajo 49: Jumi Kamki Page No.# 7/17 50: Pratima Lama 51: Linu Gamlin 52: Dorjeemu 53: Tilok Boko 54: Kipa Memu 55: Komi Tao 56: Kaushal Kishor Singh 57: Powang Wangpan 58: Nima Tsering Page No.# 8/17 59: Tallo Talo 60: Marmin Kamki 61: Marka Basar 62: Tao Gokap 63: Sojum Bogo 64: Rinchin Wangjom Dingla 65: Dhanti Boruah 66: Gida Tugung 67: Manchan Ngiwang Page No.# 9/17 68: Roshan Lowang 69: Junmoni Pradhan 70: Radhe Tama 71: Tamuk Tamut 72: Dilip Kumar Yadav 73: Reluk Kato 74: Pura Rika 75: Soknya Gamlin Page No.# 10/17 76: Ngasa Gadi 77: Pakli Gamlin 78: Kento Kato 79: Karshap Gamlin 80: Ram Kishan Yadav 81: Sudarshan Singh Yadav 82: Sushanto Roy 83: Tage Mindo 84: Khoda Chilyang Page No.# 11/17 85: Kekko Bole 86: Ngabi Tali 87: Taichat Wangsu 88: Kago Tatung 89: Shri Kesang 90: Yomge Ete 91: Moyir Kato 92: Pem Droima Page No.# 12/17 93: Bomyi Gamlin 94: Tanyang Tado 95: Tihua Wangno Occupation VERSUS THE STATE OF AP and 5 Ors. Represented by the Secretary to the Govt. of Arunachal Pradesh, Home Department, Itanagar, PIN 791111 2:The Secretary Age: 0 3:The Commissioner and Secretary Age: 0 4:The Director of Audit and Pension Age: 0 5:The Inspector General of Prison Age: 0 6:The Superintendent (PRISON) Age: 0 Occupation Advocate for the Petitioner : M Chanda Page No.# 13/17 Advocate for the Respondent : S. Tapin, Sr. Govt. Advocate. ::B E F O R E:: HON'BLE MR. SANJAY KUMAR MEDHI