# Lal Bahadur v. Union of India & Ors

- **Citation:** (2024) 5 ILRA 725
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-13
- **Case number:** Writ-A No. 15103 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lal-bahadur-v-union-of-india-ors-51963
- **Pages:** 11

## Headnote

A. Service Law - Pension - Defined
Contributory Retirement Benefit Scheme -
Petitioner worked as temporary peon from
1989 till the date of termination in 1994 -
After Labour Court's order of reinSt.ment
dated 14.06.2005 in favour of petitioner
and during pendency of writ petition
arising out of reinSt.ment, the tripartite
settlement was implemented and after
when writ petition was not pressed, the
petitioner was absorbed in service on
09.10.2012 under the tripartite settlement
and
confirmed
on
13.04.2013
-
Appointment
letter
dated
09.10.2012
provide the term of post retiral benefit -
Effect - Pension under Old Pension Scheme
claimed
-
Entitlement
-
Held,
the
petitioner accepted his post retiral benefits
in terms these were offered, particularly
funds under the Defined Contributory
Retirement Benefit Scheme is beyond cavil
- High Court declined to interfere holding
that the acceptance of the terms of the
appointment letter by the petitioner placed
him under the regime of the Defined
Contributory Retirement Benefit Scheme.
(Para 19, 25 and 26)
B. Constitutional Law - Fundamental right
- Right of pension - Waiver of right - Not
taking steps for enforcement of right
within reasonable time - Effect - Held,
while fundamental rights, it is true, cannot
be waived, it is not the law that the
principle of laches do not operate to defeat
at least some of them. A plea of
discrimination or arbitrariness has to be
raised and enforced within a reasonable
time.
An
unreasonable
delay
would
certainly bring in laches. (Para 19)

Writ petition dismissed. (E-1)

List of Cases cited:

## Text

5 All. Lal Bahadur Vs. Union of India & Ors.
725

26. There shall be no order as to costs.
----------
(2024) 5 ILRA 725
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.05.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 15103 of 2023

Lal Bahadur ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare, Sr. Advocate

Counsel for the Respondents:
A.S.G.I., Sri Anadi Krishna Narayana,
Anupama Parashar

A. Service Law - Pension - Defined
Contributory Retirement Benefit Scheme -
Petitioner worked as temporary peon from
1989 till the date of termination in 1994 -
After Labour Court's order of reinSt.ment
dated 14.06.2005 in favour of petitioner
and during pendency of writ petition
arising out of reinSt.ment, the tripartite
settlement was implemented and after
when writ petition was not pressed, the
petitioner was absorbed in service on
09.10.2012 under the tripartite settlement
and
confirmed
on
13.04.2013
-
Appointment
letter
dated
09.10.2012
provide the term of post retiral benefit -
Effect - Pension under Old Pension Scheme
claimed
-
Entitlement
-
Held,
the
petitioner accepted his post retiral benefits
in terms these were offered, particularly
funds under the Defined Contributory
Retirement Benefit Scheme is beyond cavil
- High Court declined to interfere holding
that the acceptance of the terms of the
appointment letter by the petitioner placed
him under the regime of the Defined
Contributory Retirement Benefit Scheme.
(Para 19, 25 and 26)
B. Constitutional Law - Fundamental right
- Right of pension - Waiver of right - Not
taking steps for enforcement of right
within reasonable time - Effect - Held,
while fundamental rights, it is true, cannot
be waived, it is not the law that the
principle of laches do not operate to defeat
at least some of them. A plea of
discrimination or arbitrariness has to be
raised and enforced within a reasonable
time.
An
unreasonable
delay
would
certainly bring in laches. (Para 19)

Writ petition dismissed. (E-1)

List of Cases cited:

1. Bageshwari Prasad Srivastava & ors.Vs St. of
U.P. & ors.; 2022:AHC:167978

2. St. of U.P. & ors. Vs Late Bageshwari Prasad
Srivastava & ors.; 2023:AHC:69329-DB

3. Nirupama Malviya Vs St. of U.P. & ors.; 2023
(11) ADJ 524

4. Mahesh Narayan & ors. Vs St. of U.P. & ors.;
2020 (4) ADJ 172

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition has been instituted
by the petitioner, a retired Peon of the Bank of
Baroda, praying that a mandamus be issued,
ordering the respondents to consider the
petitioner covered by the Old Pension Scheme
and sanction him pension forthwith w.e.f.
01.08.2023. A further direction is sought to the
effect that the respondents pay the petitioner
regular monthly pension as also arrears
worked out with effect from 01.08.2023, along
with interest at such rate as this Court may
determine, until realization. The petitioner
prays that a further direction be issued,
ordering the respondents not to treat the
petitioner covered by the newly defined
Contributory Pension Scheme, which is
applicable
to
the
persons
appointed
subsequent to 01.04.2010.
726 INDIAN LAW REPORTS ALLAHABAD SERIES

2. The petitioner's case is that he was a
temporary
Peon
employed
with
the
Govindganj Branch of the Bank of Baroda
in District Shahjahanpur, falling under the
Bank's Shahjahanpur Region. This was the
petitioner's status with the Bank in the
month of November, 1989. He continued to
function in the capacity of a temporary Peon
till 19.11.1994, when his services were
terminated. He raised an industrial dispute,
when conciliation proceedings failed. The
Central Government, by an order dated
07.01.1997, referred the dispute between the
petitioner and his employer to the Central
Industrial Tribunal-cum-Labour Court-II,
Delhi. The reference was in terms if the
action of the Management in terminating the
petitioner's services w.e.f. 19.11.1994 was
just and legal, and if not, what relief the
petitioner was entitled to. The reference was
registered on the file of the Central
Industrial Tribunal-cum-Labour Court-II,
New Delhi as Case No.08 of 1997. The
Presiding Officer, Central Government
Industrial Tribunal-cum- Labour Court-II,
New
Delhi
made
an
award
dated
14.06.2005, answering the reference in the
petitioner's favour and holding termination
of his services illegal. A direction was
issued to reinstate the petitioner in service
with 50% back wages w.e.f. 19.11.1994.

3. The validity of the award dated
14.06.2005
was
challenged
by
the
respondent, Bank of Baroda by instituting
Writ-C No. 73449 of 2005 before this
Court. In the aforesaid writ petition, an
interim stay order was granted on
01.12.2005 in terms that the award was
stayed subject to the condition that the
Bank would reinstate the petitioner within
one month and ensure payment of wages
at par with his counterparts. In compliance
with the aforesaid interim order, the
petitioner was reinstated in service subject
to the outcome of Writ-C No. 73449 of
2005. The petitioner continued to function
in terms of the said interim order. As the
petitioner
says,
a
Memorandum
of
Settlement was arrived at between the
Management of the Bank of Baroda and its
Workmen on 18.03.2008 before the
Deputy
Chief
Labour
Commissioner
(Central),
Mumbai
with
regard
to
absorption of Causal/ Temporary Peons/
Sweepers. The settlement that was arrived
at was circulated by the General Manager
(Human Resource & Marketing), along
with a circular letter dated 24.03.2008.
The Memorandum of Settlement under the
tripartite settlement dated 18.03.2008
conferred right to absorption upon Casual/
Temporary Peon/ Sweepers in accordance
with the stipulation carried in the
settlement. The absorption that was agreed
upon under the tripartite settlement was to
be implemented in a phased manner.

4. The first phase comprised such
Causal/ Temporary Peons/ Sweepers, who
had worked between 01.01.1982 and
31.12.1989 or between 01.01.1990 and
31.12.1990 for 90 days or more and were
still working. Absorption for this category of
workmen was to be completed on or before
30.06.2008. The second phase of the
absorption, that was contemplated, related to
Causal/Temporary Peons/ Sweepers, who
had worked for 240 days or more over a
period of 12 months consecutively between
01.01.1991 and 29.02.1996 and were still
working. These absorptions were to be
implemented during the financial year 200809. The third category of employees, who
were to be absorbed in terms of the
settlement, comprised Causal/ Temporary
Peons/ Sweepers, who had worked for 240
days or more over a period of 12 months
consecutively between 01.03.1996 and
28.07.2007 and were still working. This
5 All. Lal Bahadur Vs. Union of India & Ors.
727
class of employees were to be absorbed
during the financial year 2009-10.

5. It is the petitioner's case that in terms
of a Memorandum of Settlement, the entire
exercise for absorption had to be completed
on or before 31.03.2010; not later. It is also
the petitioner's case that even though the
petitioner
was
covered
by
the
said
settlement, no order of absorption was
passed immediately with regard to the
petitioner on account of pendency of the writ
petition before this Court. The writ petition
that the Bank had filed against the Industrial
Tribunal-cum-Labour
Court's
award
continued to remain pending and dismissed
as not pressed on 17.08.2012.

6. What the petitioner says is that after
the writ petition was not pressed, an order
dated 09.10.2012 was issued by the
respondent Bank, absorbing the petitioner in
service as a Peon. He was placed initially on
probation for a period of six months. The
petitioner has said that the order dated
09.10.2012 refers to an undertaking dated
21.12.2011, "obtained" in pursuance to the
communication of the respondent Bank
dated 24.10.2011, but a copy of the
undertaking was not immediately available
with the petitioner. By a subsequent order
dated 13.04.2013, the petitioner was
confirmed
in
service.
The
petitioner
discharged his duties with the respondent
Bank
until
attaining
the
age
of
superannuation. He retired from service on
31.07.2023. It is the petitioner's case that
despite retirement, he was not sanctioned
any pension, though he is entitled to it under
the Bank of Baroda (Employees) Pension
Regulations, 1995. Under the bipartite
Settlement dated 27.04.2010 entered into
between the Banking Association and the
Employees' Organization, the newly defined
Contributory
Pension
Scheme
was
introduced in the Banks with regard to
employees joining service of the Bank on or
before 01.04.2010. The newly defined
Contributory Pension Scheme was identical
to the Contributory Pension Scheme,
introduced by the Central Government, with
regard to their employees, effective from
01.01.2004.

7. The petitioner says that according to
the respondent Bank and their officials, the
petitioner is not governed by the Old
Pension Scheme, his date of absorption
being subsequent to 01.04.2010; he is
governed by the newly defined Contributory
Pension Scheme. It is on this account that
the petitioner has not been sanctioned
pension. The petitioner says that this action
is discriminatory and violative of Article 14
of the Constitution. He is not a new
appointee and the entitlement of the
petitioner for absorption in regular service
has come into effect much prior to
01.04.2010, specifically on 16.03.2008, the
date on which the settlement for absorption
stood
notified.
The
delay
that
the
respondents did in implementing the
settlement, cannot place the petitioner on the
wrong side of the cut-off date.

8. A notice of motion was issued on
12.09.2023, after which parties exchanged
affidavits. This petition was admitted to
hearing on 09.11.2023, which proceeded
forthwith. It was adjourned for further
hearing to 24.11.2023. On 24.11.2023,
hearing concluded and judgment reserved.

9. Heard Mr. Ashok Khare, learned
Senior Advocate assisted by Mr. Mohd.
Yaseen, learned Counsel for the petitioner
and Mr. Ashok Kumar Lal, learned Counsel
appearing for respondent Nos. 2 to 6. No one
appears on behalf of respondent No.1, the
Union of India.
728 INDIAN LAW REPORTS ALLAHABAD SERIES

10. In the counter affidavit put in on
behalf of the Bank, represented by
respondent Nos.2 to 6, the facts regarding
the industrial dispute are admitted as also the
Bank approaching this Court against the
Industrial
Tribunal-cum-Labour
Court's
award. The petitioner's reinstatement also is
not denied and those facts are not very
relevant either. What is relevant is the
respondents' case that a settlement was
arrived at between the Bank of Baroda and
its workmen on 18.03.2008, the tripartite
settlement. In terms of this settlement, the
petitioner's case was not considered for
regularization, but left over because the writ
petition was pending. Therefore, the
petitioner approached the Bank that his case
may be considered in terms of the settlement
instead of the award impugned by the Bank.
The Deputy General Manager (HRM &
ADMN) vide letter dated 24.10.2011,
addressed to the General Manager, Bank of
Baroda, U.P. and Uttarakhand Zone,
Lucknow issued guidance with regard to the
petitioner's absorption. It is carried in a letter
dated 24.10.2011, a copy of which is
annexed as Annexure No. CA-1. The letter
aforesaid, in its material part, carries the
following
directions
relating
to
the
petitioner:

"In respect of Mr. Lal Bahadur
following action may be taken:

1. workman will agree and
undertake in writing not to claim any back
wages or other past benefits;

2. his absorption shall be with
prospective date after completion of the
prescribed formalities;

3. he shall not raise any dispute/
claim/ litigation against the Bank pertaining
to this matter in future;

4. Thereafter, a joint consent
application shall be filed before the High
Court of Allahabad, not to pursue the case
further."

11. Acting on the said letter, an
affidavit dared 21.12.2011 was filed by the
petitioner before the Deputy General
Manager, Bank of Baroda, Regional Office
Haldwani. The affidavit dated 21.12.2011,
that was filed, reads:

"शपथ-पत्र

समक्ष:-
श्रीमान
उपमहारिंिक
महोदय,

बैंक
आफ
बडौदा
क्षेत्रीय
कायागलय, हल्द्वानी

शपथ पत्र ओर से लाल बहादुर उम्र
करीब वषग पुत्र स्व0 श्री सूबेदार ननवासी फैक्री
स्िेि क्वािगर नम्बर 284/ 4 एचिाइप थाना
सदर बाजार तहसील सदर जजला शाहजहाांपुर
का हूुँ। मै ईश्वर को साक्षी मानकर शपथ
पूवगक ननम्न ब्यान करता हूुँ-

1. यह कक शपथकताग उपरोक्त पते
का स्थाई ननवासी है।

2.
यह
कक
शपथकताग
ने
सी०जी०आई०िी० द्ववतीय नई टदल्ली में
आई०र्ी० न० 8 / 97 से लाल बहादुर बनाम
क्षेत्रीय प्रबांिक बैंक आफ बडौदा के खखलाफ
केस दायर ककया था जजसका इल्म जाती है।

3. यह कक शपथकताग को बैंक आफ
बडौदा क्षेत्रीय कायागलय हल्द्वानी द्वारा बैंक
सेवा में स्थायी ननयुजक्त करने हेतु ननणगय
ललया र्या है, जजसका इल्म जाती है।

4.
यह
कक
शपथकताग
सी०जी०आई०िी० द्ववतीय नई टदल्ली में
5 All. Lal Bahadur Vs. Union of India & Ors.
729
जी०आई०र्ी० नम्बर 8 / 97 में एवार्ग पाररत
हुआ है इस आदेश के ववरुद्ि शपथी की
ननयुजक्त होने के उपरान्त शपथी बैंक के पूरे
सेवाकाल में ताउम्र कभी भी उपरोक्त एवार्ग
के सम्बांि में ककसी भी न्यायालय में कोई
भी वाद नहीां लायेर्ा, इल्म जाती है।

5. यह कक शपथकताग को बैंक आफ
बडौदा द्वारा स्थायी ननयुक्त करने का जो
शपथकताग को आफर टदया र्या है, इसके
सांदभग में शपथी भववष्टय में सी०जी०आई०िी०
द्ववतीय नई टदल्ली के एवार्ग का ककसी भी
न्यायालय में क्लेम नहीां करेर्ा, इल्म जाती
है।

6. यह कक शपथी की ननयुजक्त होने
के उपराांत शपथी बैंक के सदैव ननयम व
कानूनों का पूणगतया बैंक टहत में पालन
करेर्ा, जजसका इल्म जाती है।

7. यह कक शपथकताग अपने ककसी
भी पुराने देय का वेतन व अन्य लाभ भरपाई
हेतु बैंक से अपेक्षा नहीां करेर्ा तथा कानून
सम्मत कायगवाही भी नहीां करेर्ा।

8. यह कक शपथकताग सदैव बैंक के
प्रनत बफादार रहेर्ा तथा बैंक के ननदेशों के
अनुरूप ही कायग करेर्ा तथा अपनी सेवा बैंक
के टहत / लाभ के ललये ही देर्ा।
ह0 लाल बहादुर

उपरोक्त शपथ-पत्र के चरण 1
लर्ायत 8 तक मेरी ननजी जानकारी व
ववश्वास में सत्य व सही है। कुछ भी नछपाया
नहीां र्या है। ईश्वर मेरी मदद करे।

स्थान:- पूरनपुर

टदनाांक:- 21.12.2011"

12. It is also pleaded that the petitioner
accepted the Contributory Provident Fund
Scheme, as he has opted for all his
retirement benefits in terms, details of which
are mentioned in paragraph No.20 of the
counter affidavit. It is also pleaded that the
appointment order issued to the petitioner on
09.10.2012 specifically stipulates, amongst
terms and conditions, that these, if
acceptable, the petitioner may signify his
acceptance in writing. The petitioner
accepted the stipulation in the appointment
order, which shows that in accordance with
Clause 3 of the tripartite settlement dated
18.03.2008, the Bank was appointing him as
a Peon in the Subordinate Staff Cadre on the
stage of basic pay of Rs.5850/- per month,
besides dearness allowance. It is pleaded
that this appointment was accepted without
demur by the petitioner, who served until his
superannuation. The letter of appointment
carries a stipulation that the petitioner would
be eligible for Defined Contributory
Retirement Benefit Scheme, as pleaded in
paragraph No.26 of the counter affidavit. It
is also averred that the petitioner accepted
all terms and conditions, after which the
Bank withdrew the pending writ petition
relating to the old industrial dispute in terms
of a joint application moved by both parties.

13. In the rejoinder affidavit, it has
been emphasized that what cannot be lost
sight of is the fact that the petitioner and
every employee, who was to be regularized
in terms of the tripartite settlement in all its
three phases, had to be done on or before
31.03.2010. The petitioner, therefore, had a
right to be regularized before the said date
and not discriminated against. It is also
submitted that by accepting the letter of
appointment, the petitioner cannot be
deemed to have waived his right to receive
730 INDIAN LAW REPORTS ALLAHABAD SERIES
pension under the Old Pension Scheme, to
which he is otherwise entitled. It is pleaded
that the right to receive pension is a
fundamental right and there can be no
waiver of a fundamental right.

14. Upon hearing learned Counsel for
the parties and going through the records,
though it does appear that the petitioner
might
have
been
overwhelmed
into
accepting the terms and conditions dictated
by the Bank, but the fact remains that he has
elected voluntarily to accept the position
evidenced by a series of transactions. He
was serving the Bank as a Peon, retained
dehors the rules, in terms of the award
passed by the Industrial Tribunal-cumLabour Court, New Delhi and the interim
orders of this Court made in the writ
petition. No doubt, he was entitled to
enforce the terms of the tripartite settlement
and claim regularization with reference to a
date that could not have gone beyond
31.03.2010. But, he never did enforce his
claim to that effect. We also think that there
was no justification for the respondents not
to consider the petitioner's claim for
regularization under the tripartite settlement
on ground that arising out of an award of the
Industrial
Tribunal-cum-Labour
Court,
relating to termination of his temporary
service, a writ petition was pending before
this Court.

15. The pendency of a writ petition
arising out of a different set of facts and
cause of action between parties would, in no
way, permit the Bank to act in a stepmotherly fashion and discriminate against
the petitioner in the matter of regularization,
in terms of the tripartite settlement. If the
respondents did not do that, it was the
petitioner's obligation to seek enforcement
of his rights in some manner. He had to seek
enforcement of his rights under the tripartite
settlement, and not sit back in lethargy or
inaction until past 31.03.2010. Thereafter
too, what the petitioner seems to have done
is that he accepted an illegal fiat from the
Deputy General Manager (HRM & ADMN)
of the Bank of Baroda, who dictated
conditions, on the basis of which he could be
regularized, in his memo dated 24.10.2011
addressed to the General Manager, Bank of
Baroda, U.P. and Uttarakhand Zone.

16. We have no hesitation in observing
that the Deputy General Manager was
highhanded in his approach in dictating
terms to the petitioner carried in his letter
dated 24.10.2011. In fact, he had no business
to impose any terms at all. He had simply to
carry out what was agreed between parties
in terms of the tripartite settlement and
within the scheduled time. The reference in
the letter dated 24.10.2011, issued by the
Deputy
General
Manager
(HRM
&
ADMN), Bank of Baroda, imposing
conditions upon the petitioner for his
regularization in terms of the tripartite
settlement on ground of pendency of a writ
petition before this Court, is a very
undesirable conduct. The culture of looking
down and frowning upon litigation, amongst
establishments of the State or Private
Corporates, is something which does not
augur well for the society. After all,
litigation is constitutional and legal means
for an employee to seek redressal of his
grievances against his employer. An
employer, who frowns upon an employee
litigating, may, in fact, be committing
criminal contempt.

17. All this apart, however, the
petitioner's inaction in promptly enforcing
his rights, that we have noticed, cannot be
ignored. Much contrary to it, it was followed
by the positive act of furnishing an affidavit
to the Bank dated 21.12.2011, acceding to
5 All. Lal Bahadur Vs. Union of India & Ors.
731
all terms that they imposed. A careful
perusal of the terms indicated in the letter
dated 24.10.2011 issued by the Deputy
General Manager (HRM & ADMN) and the
affidavit would show that the terms there are
not very faithfully incorporated in the
affidavit. But, that does not matter. What
matters is the appointment letter dated
09.10.2012, which the petitioner accepted
without demur. The letter of appointment
dated 09.10.2012 grants the petitioner fresh
appointment as a Peon in the Subordinate
Staff Cadre on the basic pay, placing him on
probation for a period of six months. It
carries in bold letters the terms of post retiral
benefits, to which the petitioner would be
entitled upon retirement. These read:

"Apart
from
the
gratuity,
provident fund permissible as per the rules
of the Bank as may be amended from time to
time, you will be eligible for Defined
Contributory Retirement Benefit Scheme."

18. The petitioner accepted these
conditions with open eyes and joined
service
in
terms
of
the
letter
of
appointment
dated
09.10.2012.
He
completed his probation and all his service
with the Bank from 09.10.2012, in terms
of the said letter of appointment, until
31.07.2023.
Till
the
petitioner
superannuated, no grievance was ever
raised by him during all this period of time
about the unfair treatment given to him by
the Bank, in not regularizing his services
in terms of the tripartite settlement before
31.03.2010. The petitioner also did not
protest, as already said, the terms of his
post retiral benefits stipulated in the letter
of appointment. In the counter affidavit,
the respondents have taken a stand in
paragraph No.20, which shows how the
petitioner accepted his post retiral benefits
immediately upon his retirement on
31.07.2023. Paragraph No.20 of the
counter affidavit reads:

"20. That, the contents of
paragraph No. 26 of the writ petition are
not correct as stated hence denied. It is
respectfully submitted that petitioner was
retired on 31.07.2023 and was paid his
gratuity amount of Rs. 3,29,945/- and was
also paid his leave encashment amount
amounting to Rs. 2,45,319/- on 01.08.2023
and further on his request 60% of the NPS
amount was credited to his account no.
22370100012912
amounting
to
Rs.4,70,177.39 on 14.08.2023. It is
respectfully submitted petitioner has opted
Pension
Fund
Manager-SBI
Life
Insurance Company Ltd., for the annuity
of his rest 40% Corpus amount for which
the documentation process his (sic)
carried out by the PFM and the same will
be released shortly."

19. The fact that the petitioner
accepted his post retiral benefits in terms
these were offered, particularly funds under
the
Defined
Contributory
Retirement
Benefit Scheme is beyond cavil. Decisions
consistent with that Contributory Pension
Scheme were taken by accepting 60% of the
funds on 14.08.2023 and for the balance
40%, investment in the Pension Fund
Manager-SBI Life Insurance Company Ltd.
for an annuity was accepted. These actions
show active acceptance on the petitioner's
part of the Defined Contributory Retirement
Benefit Scheme. After having retired and
done all this, the petitioner presented this
writ petition, claiming to agitate his rights
under the tripartite settlement, entitling him
to regularization from an earlier point of
time, which if done, would entitle the
petitioner to the Old Pension Scheme. The
Old Pension Scheme is one mode of post
retiral benefits, may be more advantageous
732 INDIAN LAW REPORTS ALLAHABAD SERIES
to the employee, and the other is the Defined
Contributory Retirement Benefit Scheme,
that has been enforced in the Bank w.e.f.
01.04.2010. The Defined Contributory
Retirement Benefit Scheme has its own kind
of model, which does not wipe out
retirement funds altogether. Therefore, if an
employee, under whatever circumstances,
has acted in the manner the petitioner has
done, it cannot be said that he has waived his
fundamental right to receive pension. It is
only that, that he has elected one of the
alternative courses. At the same time, while
fundamental rights, it is true, cannot be
waived, it is not the law that the principle of
laches do not operate to defeat at least some
of them. A plea of discrimination or
arbitrariness has to be raised and enforced
within a reasonable time. An unreasonable
delay would certainly bring in laches. That
is also the case here. The time for the
petitioner to have enforced his rights, we
have already spoken of elaborately. It was
all open to the petitioner after the tripartite
settlement was notified, but he never acted
in time. Instead, he has chosen to bring this
petition, highly belated, after his retirement.

20. The very ingenious submission
advanced on behalf of the petitioner that
he came to know about what were the
terms of his post retiral benefits when he
actually retired, cannot be accepted,
considering the bold terms and conditions
about it mentioned in his letter of
appointment. The assertion in paragraph
No.23 of the writ petition that the
undertaking dated 21.12.2011, referred to
in the appointment letter dated 09.10.2012
pursuant to the communication of the
respondent Bank dated 24.10.2011, is not
immediately available with the petitioner,
is really a camouflage for truth, which the
petitioner knew all along. He knew what
undertaking he had furnished to the Bank
in order to secure the letter of appointment
dated 09.10.2012. Reliance has been
placed on behalf of the petitioner upon the
decision of this Court in Bageshwari
Prasad Srivastava and others v. State of
U.P. and others, 2022:AHC:167978,
which too was a case of denial of benefit
under the Old Pension Scheme, because
the appointment was made after the cut-off
date, which was 01.04.2005 in that case.
In
Bageshwari
Prasad
Srivastava
(supra), it was held:

"The above ground cited by the
State is nothing but a pretense, in the facts
of the present case. While there can be no
dispute to the reason, if on true appraisal
of facts it were to be concluded that the
petitioners were born in the cadre on or
after 01.4.2005. Here, upon direction
issued by the writ Court on 29.4.1999 in
Writ Petition No. 17195 of 1995 a right
accrued to the petitioners to be absorbed
on Class-III and Class-IV posts. Though,
challenge was raised to that order by first
filing Special Appeal and then by carrying
the matter to the Supreme Court in Special
Leave Petition, it is not the case of the
State respondents that any stay order was
passed in their favour at any stage, in any
proceeding. Even then it cannot be denied
that the Special Leave Petition came to be
dismissed on 18.3.2002 well before the cut
off
date
i.e.
31.3.2005.
The
State
respondents did not act in accordance with
law and did not comply with the direction to
absorb the petitioners. They allowed almost
three years to pass before the appointment
letters came to be issued under threat of
contempt proceedings. It is also not the case
of the State respondent that there was any
defect in the claim made by the petitioners
or there were some delay caused by the
conduct of the petitioners as may deprive
them to any relief, now claimed.
5 All. Lal Bahadur Vs. Union of India & Ors.
733

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."

21. On appeal, the decision in
Bageshwari Prasad Srivastava was upheld
by the Division Bench in State of U.P. and
others
v.
Late
Bageshwari
Prasad
Srivastava and others, 2023:AHC:69329DB in terms of the following remarks:

"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."

22. So far as the principle in
Bageshwari
Prasad
Srivastava
is
concerned, it is evidently very different.
That was a case where pursuant to the
mandamus issued by a learned Judge of this
Court on 29.04.1999, the right to be
absorbed in favour of the petitioners on
Class-III and IV posts stood crystallized on
29.04.1999.
It
was
the
respondents
themselves, who, by invoking appellate
procedures and without the benefit of a stay
order had postponed compliance with the
mandamus issued by the learned Judge in
the writ petition earlier filed by the
petitioners relating to their right to be
absorbed in service. They implemented the
mandamus after losing up to the Supreme
Court and upon facing contempt action. By
that time, they pushed matters beyond the
cut-off date, when the Old Pension Scheme
went out of currency. It was on those facts
that the Court held that the rights of the
734 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioners to pension could not be judged
with reference to the right when they were
actually appointed. They had to be traced
back to an earlier point of time when the Old
Pension Scheme was still in force.

23. The learned Counsel for the
petitioner has relied upon a decision of mine
in Nirupama Malviya v. State of U.P. and
others, 2023 (11) ADJ 524. That again was
a case where the petitioner had been selected
by the Uttar Pradesh Secondary Education
Services Selection Board for a Lecturer's
post in Economics and put in the panel of
selected candidates, that was published and
notified on 01.12.2004 by the Secretary to
the Selection Board. She was allotted a
college at Meerut, where she was not
allowed to join. The petitioner made efforts
with the District Inspector of Schools,
Meerut, but was not successful. She was
turned away. She sent an application again
to the Secretary of the Selection Board on
27.01.2005, requesting that she may be
allotted
some
institution
in
District
Allahabad or Lucknow. It was at this stage
that the State Government introduced the
Contributory
Pension
Scheme
on
28.03.2005 instead of Pension-cum-General
Provident Fund Scheme. The Contributory
Pension Scheme was introduced for new
recruitments made after 01.04.2005, in
terms of the Government Order dated
28.03.2005. The petitioner was then allotted
the Janta Girls Inter College, Lucknow. She
was not allowed to join there too. The reason
assigned by the college at Lucknow was that
there was a stay order passed by the
Lucknow Bench of this Court in favour of
the teacher, who was functioning on the
post.

24. The District Inspector of Schools,
Lucknow
addressed
a
memo
dated
20.10.2005 to the Secretary of the Selection
Board, apprising him of the inability shown
by the Janta Inter College, Lucknow to
appoint the petitioner. The petitioner moved
this Court by way of Civil Misc. Writ
Petition No. 74936 of 2005 for an
appropriate direction to the Selection Board
and the Authorities to ensure her placement.
It was dismissed on account of lack of
territorial jurisdiction. She then instituted a
writ petition before the Lucknow Bench for
enforcement of her rights. The Lucknow
Bench, vide order 21.04.2006 passed in Writ
Petition No.3371 (S/S) of 2006, directed the
Secretary of the Selection Board to ensure
an appointment for the petitioner in any
other institution, within a month. It was in
compliance with the said direction that the
petitioner was issued an appointment letter
dated 01.08.2006, appointing her with the
Zila Panchayat Balika Inter College,
Gyanpur, Bhadohi. She joined the college
on 02.08.2006. It was in the background of
all these facts that I held in Nirupama
Malviya (supra):

"14. It is not the subject-matter of
the controversy here, if the District
Inspector of Schools was in error or the
Board in carrying out the Board's allocation
in favour of the petitioner, first made on
1.12.2004. The crux of the matter is that the
petitioner's right stands crystallized, when
the college was allocated by the Selection
Board, and she reported to the concerned
college, where it is presumed that the
District Inspector of Schools would have
issued necessary directions to the concerned
college. The District Inspector of Schools
did report back to the Board, which shows
that he issued the necessary direction to
appoint. If he did not, that too would be
inaction on the part of the District Inspector
of Schools.

15. Now, it would be a great
travesty of justice if the petitioner is made to
5 All. Ravi Kumar Vs. State of U.P. & Ors.
735
suffer either on account of the inaction or
lethargy of the Selection Board, or the
District Inspector of Schools or their
callousness in selecting the appropriate
institution to place the petitioner while
allocating. If the institution, where the
petitioner was first allocated, had not
resisted her appointment or the District
Inspector of Schools had enforced it, she
would have joined well before the cut-off
date under the Government Order dated
28th March, 2005, introducing a new
pension scheme. The petitioner's rights
cannot turn upon mere fortune dependent
upon a chance of her date of joining being
placed on the right side of the cut-off date. A
crystallized right under the statute must
move on surer ground about time when it
comes into effect. It cannot be made
dependent upon inaction or lethargy of
Authorities about enforcement, or on the
correctness of their choice to realize that
right for the petitioner.

16. This Court is, therefore, of
opinion that the petitioner would be entitled
to trace her rights, as already said, either to
the date when the allocation order was
issued on 1.12.2004 or at any time before
25.1.2005, when the District Inspector of
Schools, Meerut referred the matter to the
Secretary of the Selection Board to allocate
another college in same district or another
district for the petitioner. The petitioner's
right would, therefore, be traceable to a
point of time, well before the cut-off date;
not after it, when, in fact, she succeeded in
securing an appointment letter from the
allocated college after failing on two
occasions, resisted by managements."

25. The learned Counsel for the
petitioner also pressed in aid the decision
of this Court in Mahesh Narayan and
others v. State of U.P. and others, 2020
(4) ADJ 172, which I have relied upon in
Nirupama Malviya, but that too was a
case of inaction by the respondents that
delayed
the
petitioner
in
securing
appointment before the cut-off date came
for enforcement of the Contributory
Pension Scheme. It was not at all a case,
like the present one, where there has not
only
been
utter
inaction
on
the
petitioner's part to enforce his rights, but
also positive acts of election, accepting
the terms of the appointment letter, that
placed the petitioner under the regime of
the Defined Contributory Retirement
Benefit Scheme.

26. In the considered opinion of this
Court, no case for interference, therefore, is
made out.

27. This writ petition fails and is
dismissed.

28. There shall be no order as to costs.
----------
(2024) 5 ILRA 735
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.05.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE MANJIVE SHUKLA, J.

Writ-A No. 18438 of 2022

Ravi Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Atipriya Gautam, Sri Devesh Mishra, Sr.
Advocate

Counsel for the Respondents:
C.S.C.