Inclusion of Government Servant under Old Pension Scheme – Brief facts of Writ – A No. – 55606 of 2008


Reserved On: 26.07.2019
Delivered On: 19.12.2019

Case:- WRIT – A No. – 55606 of 2008
Petitioner:– Mahesh Narayan And Others
Respondent:– State Of U.P. And Others
Counsel for Petitioner:– Siddharth Khare, Ashok Khare
Counsel for Respondent:– C.S.C.

Hon’ble Neeraj Tiwari, J.

Heard Sri Siddharth Khare, learned counsel for the petitioners and Sri Brajesh Pratap Singh, learned standing counsel for respondents.

Brief facts of the case are that Irrigation Department of State of U.P. has sent a requisition dated 20.10.1999 to Uttar Pradesh Public Service Commission (hereinafter referred to as the ‘Commission’) notifying 954 posts of Junior Engineer (Civil) to hold selection and in the notification dated 20.10.1999, it was clearly mentioned that posts are pensionable. After receiving the requisition, Commission issued an advertisement No. A- 3/E-1/2000 dated 22.12.2000 inviting application for Junior Engineer (Civil) Irrigation Department (Screening) Examination, 2000. Last date of submission form was 27.01.2001 and petitioners being fully eligible, have submitted the application. In the advertisement, it was provided that there would be a preliminary screening test for selection of candidates to appear in the mains examination. However, subsequently, an aforesaid preliminary screening test was done away and all applicants permitted to appear straightway in the mains written examination which was held on 22.12.2001 and all the petitioners appeared in the said examination. Prior to the holding of written examination, Writ Petition No. 7062 (S/S) of 2001 (Pramod Kumar Gupta and others Vs. Public Service Commission, U.P. Allahabad and others) was filed by some candidates possessing Civil Engineering Degree and claiming permission to participate in the said examination. In the said petition, stay order was granted by learned Single Judge vide order dated 18.12.2001 restraining the holding of examination, which was scheduled for 22/23.12.2001. Against the interim order dated 18.12.2001, Commission preferred Special Appeal No. 485 (S/B) of 2001 (U.P. Public Service Commission Vs. State of U.P. and others), in which vide order dated 19.12.2001, interim order was modified and a direction was issued to permit the petitioners also to appear in the said examination whereas their results shall not be declared. There was no restraint order with regard to the declaration of result of remaining candidates and there was an only observation that declaration of result shall be only provisional subject to the final decision of writ petition. Thereafter, the written examination was held on 22/23.12.2001 but the result of the said examination could not be declared immediately. Writ Petition No. 7062 (S/S) of 2001 was connected with Writ Petition No. 7012 (S/S) of 2001 (Anoop Ratan Awasthi Vs. Public Service Commission, Allahabad, and others) and the said petitions were dismissed by learned Single Judge of this Court vide order dated 05.07.2005. After the dismissal of writ petitions, the result of the written examination was declared on 05.10.2005 and petitioners were shown as having qualified and called for participating in interview. The interview was held between 21.11.2005 to 12.01.2006 and a final select list of selected candidates was published in daily newspaper ‘Dainik Jagran’ on 12.03.2006 having the roll numbers of all the petitioners and they have been finally selected for appointment. Ultimately, vide office order dated 14.06.2006, appointment was granted to a total of 113 persons including petitioner Nos. 2 & 3 and another office order dated 20.07.2006 was issued granting appointment to total 125 persons including the name of petitioner No. 1. Pursuant to the appointment letters, all the petitioners submitted their joining on 25.07.2006, 30.06.2006 and 24.06.2006 respectively.

Learned counsel for the petitioners submitted that presently all petitioners are working at different places in the State of U.P.

It is further submitted that grievance of the petitioners is with regard to their exclusion from the benefit of pension payable under the provisions of Uttar Pradesh Retirement Benefits Rules, 1961 (hereinafter referred to as the ‘Rules, 1961’) and benefit of provident fund under the General Provident Fund (Uttar Pradesh) Rules, 1985. State Government issued Notification dated 28.03.2005 replacing the ‘Old Pension Scheme’ with ‘New Pension Scheme’ with effect from 01.04.2005. For the implementation of a notification dated 28.03.2005, State Government has amended Uttar Pradesh Retirement Benefits Rules, 1961 (hereinafter referred to as the ‘Rules, 1961’) by Uttar Pradesh Retirement Benefits (Amendment) Rules, 2005 (hereinafter referred to as the ‘Rules, 2005’). Vide Notification dated 07.04.2005, in Rule 2 of Rules, 1961, Clause-3 has been inserted providing that Rules, 1961 shall not apply to employees entering in service on or after 01.04.2005.

Learned counsel for petitioners is assailing the Notifications dated 28.03.2005, 07.04.2005 as well as amended Rules, 2005 on the ground that same shall not be applicable in the case of petitioners. In the Notification dated 20.10.1999, it was clearly mentioned that posts are pensionable and an advertisement was issued on 22.10.2000. There were certain litigations, due to which selection process could not be finalized and even after clearance is given by the Division Bench of this Court vide order dated 19.12.2001. Commission, after holding the examination on 22/23.12.2001 has not declared result though there is no restraint imposed by the Division Bench of this Court rather it has been permitted to declare the result which shall be abiding by the order of Court and shall be provisional. It is next submitted that after interim order dated 19.12.2001 passed by Division Bench of this Court, a delay from December 2001 to December 2005 in declaring the result is solely attributable to the respondents for which petitioners are not responsible. Subsequent to the advertisement in the matter of petitioners, a post of Junior Engineer (Civil) was again notified by Irrigation Department and advertised by Commission through (Special Recruitment) Advertisement No. A-3/E- 1/2002. Thereafter all selected candidates had been granted appointment prior to 01.04.2005 and such persons belonging to the subsequent selection are getting the benefit of ‘Old Pension Scheme’. It is further submitted that there is no rational justification for persons appointed on the basis of subsequent recruitment being permitted to avail benefits of earlier pension scheme whereas petitioners are denied for such benefits for their no-fault. This action of respondents is violative of Article 14 of the Constitution of India.

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