# Mahesh Narayan & Ors v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1711
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-19
- **Case number:** Writ A No. 55606 of 2008
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-narayan-ors-v-state-of-u-p-ors-45222
- **Pages:** 20

## Headnote

A. Service Law - appointment - any delay
in issuance of appointment letter by the
management
during
which
the
UP
Retirement Benefits Rules, 1961 stand
amended cannot put the petitioner into
disadvantage of any type
The petitioner applied for the post of Junior
Engineer (Civil) which was advertised as
pensionable. Certain litigation suspended the
selection process. Even after the direction of
this Hon'ble Court to the Commission to declare
results which shall be contingent upon the
Court's order, the Commission did not declared
the results. There was no legal impediment in
completion of recruitment process, but due to
inaction on part of the respondents, it was
completed only after dismissal of writ petition
1712 INDIAN LAW REPORTS ALLAHABAD SERIES
on 05.07.2005. Final list of selected candidate
was published in daily newspaper "Dainik
Jagaran" dated 12.03.2006 and thereafter
appointment letters were issued. The inaction
of the respondents cannot deprive a candidate
their legitimate right. (para 22)
Writ Petition Partly Allowed
List of cases cited

## Text

_Characters 0–39,968 of 68,417. This is a partial read: ask again with offset=39968 for what follows._

2 All. Mahesh Narayan & Ors. Vs. State of U.P. & Ors.
1711
trespass or intrude and then claim a right
to exchange. It is clearly not a provision
aimed at legalizing an encroachment. A
person who has encroached or trespassed
upon land cannot subsequently turn around
and seek condonation of that act or
infraction by seeking an exchange. A
person seeking an exchange must be one
who is in lawful possession of land which
is offered in exchange. Viewed in any
other light, the provision may be abused as
a devise to accord legitimacy upon an act
which is illegal and unlawful. The
institution
which
appears
to
have
encroached upon public utility land cannot
take shelter of an application purported to
have been made under Section 161 of the
1950 Act. In any case the pendency of a
purported application for exchange cannot
confer any benefit to the petitioner here.

10. Insofar as the relation of the
petitioner with the members of the
Committee of Management is concerned,
the attention of the Court is drawn to a
document appearing at page -41 which
according to the learned counsel is a list of
members of the Committee as existing in
1983-84. No authenticity stands appended
to this document since it is not shown to
have been issued either by the concerned
educational authorities or the authorities
constituted
under
the
Societies
Registration Act, 1860. The attention of
the Court is also not drawn to any other
material which may establish that the
Committee
of
Management
as
duly
recognized by the respondents in 1983-84
did not comprise of persons who may have
been related to the petitioner. Viewed in
that light it is manifest that the adverse
findings as recorded in the impugned order
relating to the validity of the appointment
of the petitioner remain unaffected. On an
overall consideration of the aforesaid
aspects, the Court is of the considered
view that the grant of the prayers as
framed would not only be unjustified, it
would clearly amount to perpetuation of an
illegality and the placement of an illegal
burden on public resources.

11. The petition shall consequently
stand dismissed.
----------
(2020)02ILR A1711

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.12.2019

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ A No. 55606 of 2008

Mahesh Narayan & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare, Sri Siddharth Khare

Counsel for the Respondents:
C.S.C.

A. Service Law - appointment - any delay
in issuance of appointment letter by the
management
during
which
the
UP
Retirement Benefits Rules, 1961 stand
amended cannot put the petitioner into
disadvantage of any type
The petitioner applied for the post of Junior
Engineer (Civil) which was advertised as
pensionable. Certain litigation suspended the
selection process. Even after the direction of
this Hon'ble Court to the Commission to declare
results which shall be contingent upon the
Court's order, the Commission did not declared
the results. There was no legal impediment in
completion of recruitment process, but due to
inaction on part of the respondents, it was
completed only after dismissal of writ petition
1712 INDIAN LAW REPORTS ALLAHABAD SERIES
on 05.07.2005. Final list of selected candidate
was published in daily newspaper "Dainik
Jagaran" dated 12.03.2006 and thereafter
appointment letters were issued. The inaction
of the respondents cannot deprive a candidate
their legitimate right. (para 22)
Writ Petition Partly Allowed
List of cases cited
1. Pramod Kumar Gupta and ors V. Public
Service Commission, U.P. Allahabad and ors
Writ Petition No. 7062 (S/S) of 2001

2. U.P. Public Service Commission V. State of
U.P. and ors Special Appeal No. 485 (S/B) of
2001

3. Anoop Ratan Awasthi V Public Service
Commission, Allahabad and ors Writ Petitio No.
7012 (S/S) of 2001

4. Ashutosh Joshi & ors V. State of Uttarakhand
and ors Writ Petition (S/S) No. 1170 of 2010

5. Balwant Singh and ors V. State of
Uttarakhand and ors Writ Petition No. 16 and
944 of 2011 (S/S)

6. State of Uttarakhand and ors V. Balwant
Singh and ors Special Appeal No. 330 of 2013

7. State of Uttarakhand and ors V. Chandra
Shekhar Singh and ors Special Appeal No. 523
of 2013

8. Inspector Rajendra Singh V. UOI 2017 SCC
Online Del 7879

9. Government of National Capital Territory of
Delhi & ors V. Ajay Kumar & ors Writ Petition
(C) No. 838 & CM Appl. No. 3656/2016

10. Government of National Capital Territory of Delhi &
ors V. Vijay Singh and ors Writ Petition(C) No. 839/2016
& CM Appl. No. 3659/2016

11. Government of National Capital Territory of
Delhi & ors etc. V. Ajay Kumar & ors etc.
Special Leave to Appeal (C) Diary No.
15658/2019
12. Satyesh Kumar Mishra and ors V. State of
U.P. and ors 2016 (6) ADJ 808(LB)

13. Satyesh Kumar Mishra & 4 ors (Inre 3150
S/S 2010) V. State of U.P. thru. Prin. Secy.,
Education (Madhyamik) and 2 ors Special
Appeal Defective No. 480 of 2016 (overruled/
per incurium)

14. Firangi Prasad V. State of U.P. and ors
(2011) 2 UPLBEC 987 (followed)

15. Naveen Kumar Jha V. UOI and ors 2012
SCC Online Delhi 5606 (W.P.(C) No. 3827 of
2017)

16. Ajit Kumar Chaudhary V. UOI & ors W.P. (C)
4496/2014

(Delivered by Hon'ble Neeraj Tiwari, J.)

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

2. 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 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
advertisment, it was provided that there
would be preliminary screening test for
selection of candidates to appear in the
2 All. Mahesh Narayan & Ors. Vs. State of U.P. & Ors.
1713
mains
examination.
However,
subsequently
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 restrain order with regard to
declaration
of
result
of
remaining
candidates and there was only observation
that declaration of result shall be only
provisional subject to final decision of writ
petition. Thereafter, written examination
was held on 22/23.12.2001 but 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
dismissal
of
writ
petitions, result of written examination
was
declared
on
05.10.2005
and
petitioners were shown as having qualified
and called for participating in interview.
Interview was held between 21.11.2005 to
12.01.2006 and 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 total 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.

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

4. 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
implementation
of
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
1714 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

5. 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 advertisment
was issued on 22.10.2000. There was
certain litigations, due to which selection
process could not be finalized and even
after clearance 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 restrain
imposed by the Division Bench of this
Court rather it has been permitted to
declare the result which shall be abide 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, 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
advertisment in the matter of petitioners,
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 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 are violative of
Article 14 of Consititution of India.

6. In support of his contention,
learned counsel for the petitioners has
placed reliance upon the judgments of
High
Court
of
Uttrakhand
dated
17.06.2013 in the case of Ashutosh Joshi
& others Vs. State of Uttrakhand and
others in Writ Petition (S/S) No. 1170 of
2010, judgment dated 20.11.2012 passed
in Writ Petition Nos. 16 and 944 of 2011
(S/S) (Balwant Singh and Ors. Vs. State
of Uttarakhand and Ors.) and judgment
dated 26.06.2014 passed in Special Appeal
No. 330 of 2013 (State of Uttarakhand
and others vs. Balwant Singh and others)
with Special Appeal No. 523 of 2013
(State of Uttarakhand and others vs.
Chandra Shekhar Singh and others) filed
against the judgment dated 20.11.2012 and
judgment dated 27.03.2017 of Delhi High
Court in the matter of Inspector Rajendra
Singh vs. Union of India reported in 2017
SCC Online Del 7879 . He has also placed
reliance upon the judgment of Delhi High
Court
dated
13.09.2018
in
Writ
Petition(C) No. 838 & CM Appl. No.
3656/2016 (Government of National
Capital Territory of Delhi & others Vs.
Ajay Kumar & others) along with Writ
Petition(C) No. 839/2016 & CM Appl. No.
3659/2016 (Government of National
Capital Territory of Delhi & others vs.
Vijay Singh and others) which was
affirmed by the Apex Court passed in
Special Leave to Appeal (C).....Diary No.
15658/2019 ( Government of National
Capital Territory of Delhi & ors. Etc. Vs.
2 All. Mahesh Narayan & Ors. Vs. State of U.P. & Ors.
1715
Ajay Kumar & others etc.) vide order
dated 10.07.2019.

7. Sri Brajesh Pratap Singh, learned
standing counsel for respondents has not
disputed the facts of the case as submitted
by learned counsel for the petitioners, but
so far as legal submission is concerned, he
has submitted that once vide Notification
dated 28.03.2005, Rules, 1961 is amended,
petitioners are not entitled for benefit of
'Old Pension Scheme' and in support of his
contention, he has placed reliance upon the
judgment of this Court in the matter of
Satyesh Kumar Mishra and others vs.
State of U.P. and others, reported in
2016(6) ADJ 808 (LB).

8. In the rejoinder argument, learned
counsel for the petitioners submitted that
the said judgment of Satyesh Kumar
Mishra (Supra) relied upon by learned
standing counsel is under challenge in
Special Appeal Defective No. 480 of 2016
(Satyesh Kumar Mishra & 4 others (Inre
3150 S/S 2010) vs. State of U.P. Thru.
Prin.Secy., Education (Madhyamik) and
2 others), which is pending. He next
submitted that very similar controversy
based on similar facts was involved in the
matter of Firangi Prasad Vs. State of U.P.
and others reported in (2011) 2 UPLBEC
987 and in that case, after order of District
Inspector of Schools dated 18.01.1993,
appointment letters could not be issued by
the Management of the Institution and in
the mean time, U.P. Secondary Education
Services Selection Board Act, 1982 was
amended fixing the date of joining for
regularization. As petitioner was not issued
appointment letter by the Management
within the time, therefore, he could not
submit his joining before the cut off date
and ultimately denied from the benefit of
regularization. Division Bench of this
Court has adjudicated the matter and
clearly held that such candidates are also
entitled for regularisation irrespective of
cut off date fixed for regularisation from
the date of appointment. The case of
Firangi
Prasad
(Supra)
was
not
considered by the Court while deciding the
case of Satyesh Kumar Mishra (Supra),
therefore, judgment of Satyesh Kumar
Mishra (Supra) is per incuriam.

9. Learned counsel for the petitioners
submitted that petitioners are not at fault,
therefore, in the light of judgment of
Firangi
Prasad
(Supra),
petitioners
cannot be put into disadvantage of any
type due to amendment in the Rules and
further this fact should also be considered
that candidates appointed pursuant to the
subsequent
advertisement,
have
been
given benefit of 'Old Pension Scheme' as
they had been issued appointment letters
prior to cut off date and submitted their
joining. In the present case, there was no
legal
impediment
in
completion
of
selection process prior to cut off date but
even though same has not been completed
due to total inaction on the part of
respondets resulting in denial of 'Old
Pension Scheme' due to late joining, which
could not be accepted in the light of
judgment of Firangi Prasad (Supra) and
petitioners are fully entitled for 'Old
Pension Scheme'.

10. I have considered the rival
submissions advanced by learned counsel
for the parties and perused the record as
well as judgments relied upon.

11. So far as facts of the case are
concerned, there is no dispute between the
parties, therefore, I am coming to the legal
submission of learned counsel for parties
as well as judgments relied upon by them.
1716 INDIAN LAW REPORTS ALLAHABAD SERIES

12.

Learned
counsel
for
the
petitioners placed reliance upon the
judgment of Ashutosh Joshi (Supra). In
that matter against same advertisement,
appointments were made and female
candidates were given appointment prior
to the date from which 'New Pension
Scheme' was implemented whereas the
male
candidates
have
been
given
appointment after the cut off date. The
Court has considered the matter and
ultimately allowed the writ petition.
Relevant paragraph No. 6 of the judgment
is quoted below.

"6. After hearing the rival
submission of the petitioners and the State,
this Court is of clear view that denial of
pensionable benefits to the petitioners is
wholly unjustified, arbitrary and violative
of Article 14 of the Constitution of India.
It is so first and foremost for grounds that
it has created a wholly unreasonable
classification between women and men
candidates. Whereas in the same selection
process women candidates who were
given appointment prior to 1.10.2005 have
been given pensionary benefits, the men
candidate i.e. the petitioners have not
given pensionary benefits. This clearly
cannot be accepted. Moreover, as fas as
application of Rules is concerned, since
the selection process of the petitioners had
already begun, the Rules will not be
effective in this selection process as any
enforcement would give rise to anomalous
situation which is clearly in violation of
Article 14 of the Constitution of India.
Secondly,
in
the
advertisement
the
Government had clearly stated that all the
posts
are
pensionable
posts.
The
Government therefore cannot go back on
its promise. There would be an estoppel
against
it.
Finally
the
admitted
classification between men and women
candidates, in the same selection process,
is not a reasonable classification. It has no
nexus with the objects sought to be
achieved. Hence it is Violative of Article
14 of the Constitution of India."

13. Next judgment relied upon by
learned counsel for the petitioners in the
case of Balwant Singh and Ors. Vs. State
of Uttarakhand and Ors. {Writ Petition
Nos. 16 and 944 of 2011 (S/S)}. In this
matter
too,
against
the
very
same
advertisement, there are two sets of
selected candidates, one submitted their
joining before cut of date, whereas
petitioners have submitted their joining
after cut of date i.e. 01.10.2005 and second
sets of candidates were denied the benefit
of 'Old Pension Scheme'. The Court has
allowed the writ petition directing the
respondents to accord the benefit of 'Old
Pension Scheme' to the petitioners, also
who have submitted their joining after the
cut of date. Against the said order, Special
Appeal No. 330 of 2013 along with
Special Appeal No. 523 of 2013 was also
filed by State of Uttarakhand which was
dismissed by the Division Bench of
Uttarakhand High Court vide common
order dated 26.06.2014. Relevant part of
the judgment is quoted below:-

" Undisputedly, when petitioners
applied for the post, old pension scheme
was in existence, therefore, petitioners had
every reasonable expectation that they
would be governed by the service
conditions prevailing on the date posts
were advertised and recruitment process
was commenced. In our considered view,
service conditions, prevailing on the date
recruitment process commenced, cannot
be permitted to be altered in disadvantage
of the recruitees. Moreover, in our
considered opinion, Government Order
2 All. Mahesh Narayan & Ors. Vs. State of U.P. & Ors.
1717
dated 25.10.2005 is prospective in nature
and
cannot
be
made
applicable
retrospectively for the persons who had
applied for the post prior to 25.10.2005.
Therefore, we do not find any reason to
take contrary view to the view taken by the
learned Single Judge.

Consequently, both the appeals
fail and are hereby dismissed."

14.

Learned
counsel
for
the
petitioners has also relied upon judgment
of Delhi High Court in the matter of
Inspector Rajendra Singh (Supra) in
which Delhi High Court held that selection
was started for Para Military Forces,
petitioners along with other candidates
participated in the said process and
ultimately petitioners were rejected being
declared medically unfit. After being
declared medically unfit, the petitioners
got themselves medically examined in
other reputed medical institutions, where
they were declared medically fit. The
petitioners thereafter applied for medical
re-examination by a Review Medical
Board. In the mean time, while the appeals
of
the
petitioners
for
medical
reexamination in want of constitution of a
Review Medical Board were pending, the
Staff Selection Commission declared the
results of all other candidates except the
petitioners, and depending upon the option
exercised by them and their merit position,
the empanelled candidates were allocated
different paramilitary forces, that is BSF,
CISF, CRPF and ITBP. It is stated that
candidates selected to the CRPF, CISF,
and
ITBP
were
issued
letters
of
appointment on diverse dates and they all
joined the respective forces on or before
31.12.2003
whereas
the
candidates
selected for appointment as Sub Inspectors
in the BSF were issued offers of
appointment in October 2003 and asked to
join the BSF in January 2004. On
22.12.2003, before the sub inspectors
selected for appointment in the BSF were
required to join, a new Contributory
Pension Scheme was introduced with
effect from January 2004. The Sub
Inspectors selected to the BSF, who were
directed to join in January, 2004, were
deprived of the benefit of the Old Pension
Scheme as existing under the Central Civil
Services (Pension) Rules 1972. Delhi High
Court, after considering the facts of the
case and law, allowed the writ petition
directing the respondent to treat the
petitioners as members of 'Old Pension
Scheme' under the Central Civil Services
(Pension) Rules 1972. Relevant Paragraph
Nos. 13, 14, 18, 20, 21, 22, 23, 24, 25, 30,
31 and 40 are quoted 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.

14. As 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
1718 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

18. In 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.

20.
In
WP(C)
No.3834/2013
(Parmanand Yadav and Others Vs. Union of
India and others) the Division Bench held:-

"8. In the case of BSF, of which
petitioners are enrolled members of the Force,
letters offering appointment were delayed by
three months, a fact admitted by the respondents,
and as to be found in the DG BSF admitting said
fact in the counter affidavit filed.

9. Thus, for parity of reasons, same
relief as was granted to Naveen Kumar Jha and
Avinash Singh must flow to the writ petitioners,
and thus we adopt the reasoning in the two
decisions, and hence we have reproduced the
same hereinabove.

10. The petition is allowed issuing a
mandamus to the respondents to treat the
petitioners as a member of the pension scheme
which was in vogue till December 31, 2003 and
not to treat them as members of the new pension
contributory fund scheme."

21. In Naveen Kumar Jha Vs. Union
of India and Others decided on 02.11.2012, a
Division Bench of this Court had held:-

3. The Staff Selection Commission
invited applications to fill up posts of SubInspector in Central Para Military Forces and
titled the selection process as ,,SSC Combined
Graduate Level 2000‟. The petitioner applied and
took the examination. He cleared the written
examination as also the Physical Efficiency Test.

4. Required to appear before a
Medical
Board
for
fitness
to
be
ascertained, the petitioner was declared
medically
unfit
as
per
medical
examination conducted on February 04,
2002. Since the procedures of the law
entitled the petitioner to seek a re-medical
examination by being brought before a
Review Medical Board and for which he
had to file an appeal within 30 days of
unfitness being intimated, on February 25,
2002
the
petitioner
submitted
the
necessary appeal. Unfortunately, for him
he heard nothing from the respondents on
the subject i.e. the date and the place
where petitioner was required to be present
to be re-examined by the Review Medical
Board
and
in
the
meanwhile
the
candidature of others was processed. It
was only on January 18, 2003 that the
petitioner was intimated to be present
before the Review Medical Board and the
petitioner duly presented himself before
the Board and upon examination was
declared fit. By March 2003 others who
were successful had joined the respective
Para Military Force to which they were
allocated to. The petitioner was called for
interview on July 2003 and thereafter
having cleared the interview was issued
letter offering appointment as a SubInspector in CRPF in April 2004. The
petitioner
thereafter
successfully
completed the induction training and was
attached to the 72nd Bn.CRPF.

5. The problem which the
petitioner has highlighted is of not only
being placed junior to the entire batch
which joined CRPF pursuant to the SSC
Combined
Graduate
Level
2000
Examination but even junior to those who
took the SSC Combined Graduate Level
2 All. Mahesh Narayan & Ors. Vs. State of U.P. & Ors.
1719
2001 and SSC Combined Graduate Level
Examinations
held
thereafter;
the
petitioner being placed at the top of the list
of the 2004 year batch.

6. This has affected the petitioner
adversely because Sub- Inspectors of his
batch have earned promotions to the rank
of Inspector and are being considered for
further promotion to the post of Assistant
Commandant.

7. Though the petitioner has
earned promotion to the post of Inspector
but even in said rank has lost out in
seniority and right to be considered along
with his batchmates for promotion to the
post of Assistant Commandant.

8. Another injury suffered by the
petitioner is the change in the policy of the
Central Government to do away with old
Pension Scheme which automatically
made eligible all those who joined Central
Government prior to December 31, 2003.
The petitioner has been held entitled to the
new Pension Scheme.

9. With respect to the Pension
Scheme it assumes importance to note that
petitioner's batchmates were issued letters
offering appointment in March 2003 and
had petitioner likewise been issued a letter
offering appointment, he too would have
been a member of the old Pension Scheme.
As a result of petitioner being offered
employment in April 2004, he has perforce
been made a member of the new Pension
Scheme.

10. On the subject of delay in
conducting Review Medical Boards, in the
decision dated May 26, 2011 deciding
WP(C) No.5400/2010 Avinash Singh Vs.
UOI, a Division Bench of this Court held,
in para 17 to 20 as under:-

"17. It is settled law that if
appointment is by selection, seniority of
the entire batch has to be reckoned with
respect to the merit position obtained in
the selection and not on the fortuitous
circumstance on the date on which a
person is made to join.

18. We highlight in the instant
case the fortuitous circumstance of the
petitioners being made to join as Assistant
Commandant on 08.08.2005 is not the
result
of
anything
created
by
the
petitioners but is a result of a supine
indifference and negligence on the part of
the ITBP officials.

19. Thus, petitioners would be
entitled to their seniority as Assistant
Commandant with respect to their batch-mates
in the context of the merit position in the select
panel. We make it clear, the seniority as
Assistant Commandant of the entire batch
would be a reflection of the merit position in
the select list and not the date of joining.

20. It is trite that where a thing is
deemed to come into existence everything
which logically flows therefrom has to be
followed and the imagination cannot boggle
down. In other words, the effect of the
petitioners‟ seniority being reckoned with
reference to the select panel would mean that
the petitioners would come at par with their
brethren who joined on 02.11.2004. Since their
brethren were granted 1 year qualifying service
relaxation, petitioners would be entitled to the
same benefit and additionally for the reason the
next below rule requires that if a person junior
in the seniority position acquires the necessary
qualifying service, the person above has also to
be considered for promotion."

11. On facts it needs to be noted
that the seven petitioners of WP(C)
No.5400/2010 had lost out on their
seniority with reference to their merit
position in the Select List due to delay in
conducting
their
Review
Medical
Evaluation and in the interregnum their
batchmates had joined ITBP.

12. On parity of reasoning and
application of law the petitioner is held
1720 INDIAN LAW REPORTS ALLAHABAD SERIES
entitled to his seniority being refixed as a
Sub-Inspector in CRPF with reference to
his merit position at the SSC Combined
Graduate Level 2000 Examination i.e.
those who joined CRPF pursuant to the
said examination in March 2003. The
petitioner has already earned promotion to
the post of Inspector and accordingly we
direct that he would be entitled to seniority
refixed in said rank with reference to his
revised seniority position in the rank of
Sub-Inspector, and this would mean that
the petitioner would be considered for
promotion to the post of Assistant
Commandant as per the revised seniority
list.

13.
The
respondents
are
therefore directed to revise the seniority
position of the petitioner in the two ranks
within a period of four weeks from today
and thereafter consider the petitioner along
with other eligible persons for promotion
to the post of Assistant Commandant.

14. As regards wages, on the
principle
of
not
having
shouldered
responsibility for the higher post, we do
not direct backwages to be paid.

15. On the subject of the
petitioner being entitled to the old Pension
Scheme,
in
similar
circumstances,
deciding WP(C) No.10028/2009 Amrendra
Kumar vs. UOI & Ors., where the
petitioner therein was also similarly
deprived the opportunity to join with his
batch on account of delay in conducting
medical re-examination, the Court had
directed that said writ petitioner would be
entitled to the benefit of the old Pension
Scheme which remained in force till
December 31, 2003.

16. The petitioner would be
entitled to similar benefit and accordingly
the next mandamus issued is by way of a
direction to the respondents to treat the
petitioner as a member of the pension
scheme which remained in vogue till
December 31, 2003."

22. It is true that in this case the
appointment letters were issued in 2005.
However, the petitioners had applied
pursuant to the same advertisement as
Parmanand and 24 others, who were
granted the relief, and gone through the
same selection process which commenced
a few years before the New Pension
Scheme
was
notified.
The
medical
examination
was
also
held
within
31.12.2003, before the new scheme came
into effect. Unfortunately, the appointment
took time.

23. The 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.

24. By 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
2 All. Mahesh Narayan & Ors. Vs. State of U.P. & Ors.
1721
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
interests of justice, we hold that they
should be entitled to the benefits of the old
pension scheme."

25. In Shoorvir Singh Negi (Supra),
the petitioners had claimed seniority as also
pensionary benefits under the Old Pension
Scheme as per the CCS (Pension) Rules 1972.
While the prayer to seniority over persons who
joined earlier, was disallowed, but the claim of
those petitioners for pensionary benefits under
the Old Pension Scheme, as per CCS(Pension)
Rules 1972, was allowed.

30. The respondents have contended
that the final results of the petitioners had been
declared by the Staff Selection Commission in
November, 2004 long after the New Pension
Scheme was given effect. If there was delay in
declaration of the results and issuance of letters
of appointment, the incumbents are not to
suffer. May be, as contended by the
respondents, the petitioners had been declared
unfit. However, in the Review Medical
Examination by Review Medical Board, they
were found fit. It is not the case of the
respondents that they were unfit earlier by
reason of any ailment or disorder, of which
they were cured later. Even otherwise, there
was no reason for delaying the Review
Medical Examination and the Interview. In any
case, as observed above, the issues are covered
in favour of the petitioners, by the judgment of
the Supreme Court in Shoorvir Singh Negi
(supra).

31. In our considered opinion, there
can also be no discrimination between
batchmates, only because some were, at the
time of appointment, informed that the New
Pension Scheme would apply, while others
were not.

40. The writ petition is allowed. The
respondent shall treat the petitioners as
members of the Old Pension Scheme under the
Central Civil Services (Pension) Rules 1972.

15.

Learned
counsel
for
the
petitioners next placed reliance upon
judgment of Delhi High Court passed in
the case of National Capital Territory
(Supra) which is based upon the judgment
of Division Bench of Delhi High Court in
the matter of Naveen Kumar Jha vs.
Union of India and others, 2012 SCC
Online Delhi 5606 (W.P.(C) No. 3827 of
2012) decided on 02.11.2012 and Ajit
Kumar Choudhary vs. Union of India &
others, W.P. (C) 4496/2014 decided on
21.07.2017. In this matter again issue was
the same that arising out of same
advertisement, some of the candidates
were given appointment prior to cut of
date for 'New Pension Scheme' whereas
another set of persons were given joining
after the cut of date. Such candidates
approached
Central
Administrative
Tribunal
(CAT)
by
filing
Original
Application which was allowed against
which the Government of National Capital
Territory of Delhi & others filed Writ
Petition(C) No. 838 & CM Appl. No.
3656/2016 along with Writ Petition(C) No.
839/2016 & CM Appl. No. 3659/2016
before Delhi High Court and Delhi High
Court after considering the facts of the
case as well as law, dismissed the writ
petitions
by
common
order
dated
13.09.2018. Relevant paragraphs of the
judgment is quoted below:-

"
The
grievance
of
the
Government of National Capital Territory
of Delhi (GNCTD) in these two petitions
is that Central Administrative Tribunal
(CAT) granted relief to the respondents,
who
claimed
benefit
of
pre-revised
pension scheme applicable to class of
service they belonged to. It is a common
1722 INDIAN LAW REPORTS ALLAHABAD SERIES
ground of both the parties that the
previously existing scheme- i.e. before
01.01.2004, entitled public servants to a
monthly pension and other attendant
terminal pension prescribed under the CCS
(Pension) Rules, 1972 for payment of
gratuity which was subsequently amended.
The rationale for grant of relief by the
impugned order was that the applicants
(who were respondent in this case) had
issued an advertisement through Delhi
Subordinate Services Selection Board
(DSSSB) in the year 2002 for various
classes of posts. Common merit list was
drawn pursuant to the recruitment process
- sometime in 2003. Concededly, some of
the applicants though senior and higher in
the merit list were not issued appointment
letter as they did not belong to the reserved
communities in GNCTD. Subsequently,
controversy arose whether status claimed
by the Scheduled Caste/Scheduled Tribe
(SC/ST) could be given to them since they
did not belong to GNCTD and in some
instances castes were not notified in
GNCTD. Eventually, they were issued
appointment letters but after 01.01.2004.
The controversy as to whether they were
entitled to be treated as SC/ST was
resolved by Full Bench of this Court in
Deepak Kumar & Ors. vs. District and
Sessions Judge, Delhi & Ors., (2012) 132
DRJ (FB) and recently by a Constitution
Bench in Bir Singh vs. Delhi Jal Board,
2018 SCC Online SC 1241.

The denial of parity with their
juniors/batchmates vis-a-vis applicability of
old pension scheme became the subject
matter of proceedings before CAT where
they were successful. Learned counsel for
the GNCTD urges that CAT's decision-
which has relied upon previous judgment of
this Court ought to be set aside since so
called juniors/batchmates were in fact
appointees prior to the applicants. It is
contended that since the appointment of the
applicants took place after the appointed date
i.e. 01.01.2004; they could not claim any
benefit to prescribed individual pension rule.
Learned counsel relied upon a decision of
Division Bench in Ashok Mudgal vs.