# Manoj Kumar Singh & Ors v. State of U.P. & Anr

- **Citation:** (2020) 11 ILRA 118
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-12-22
- **Case number:** Writ-A No. 5414 of 2020
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-singh-ors-v-state-of-u-p-anr-45372
- **Pages:** 10

## Headnote

A. Service Law- Uttar Pradesh Retirement
Benefits Rules, 1961- U.P. Retirement
Benefits (Amendment) Rules, 2005
-
Pension
Any
delay
in
selection
for
appointment, ipso facto, cannot be a
ground to extend benefit of old pension
scheme
notwithstanding
the
clear
stipulation in the pension rule specifying
date
of
entry
in
service
to
be
determinative of the pension scheme.
(Para 30)

Distinction between Rules of recruitment
and conditions of service - Right to receive
pension is a statutory right and the pensionary
benefits can be claimed or granted only in
accordance with the applicable pension Rules.

(a) Rules of recruitment would regulate
different stages of recruitment i.e. from
the issuance of advertisement till the
issuance of appointment letter while
conditions of service would come into play
after appointment is offered. The expression
"conditions of service" is an expression of wide
import and means all such conditions which
regulate the holding of a post by a person right
from the time of his appointment till his
retirement and even beyond it in matters like
pension etc. (Para 12, 13, 15)

Terminal benefits as well as pensionary
benefits constitute conditions of service.
The employer has the undoubted power to
revise the salaries and/or the pay-scales as also
terminal benefits/pensioners benefits, as the
case may be, shall take effect is a concomitant
of the said power. So long as such date is
specified in a reasonable manner, i.e., without
bringing
about
a
discrimination
between
similarly situated persons, no interference is
called for by the Court in that behalf. (Para 14)

(b) The principle that rules of game
cannot be changed during the midst of
game itself would operate only till the
11 All. Manoj Kumar Singh & Ors. Vs. State of U.P. & Anr.
119
recruitment gets finalized and cannot be
stretched to include an exigency which
falls in the realm of conditions of service.
The principle would be exhausted as soon as
the appointment is made and the stages
thereafter, including the stage after retirement
like pension etc., would be governed exclusively
by the rules regulating conditions of service.
(Para 16)

The date on which the petitioners came to be
regulated by the service rules is the date of
issuance of their appointment letters i.e.
07.03.2006 and 19.04.2006). The old pension
scheme,
operating
on
the
date
of
advertisement, would have no relevance for the
purposes of applicability of pension scheme qua
the petitioners as evidently, prior to their
appointment, the rules relating to pension i.e.
Rules of 1961 had undergone change on
01.04.2005 and on the date of issuance of their
appointment letters, the new pension scheme
had come in vogue. (Para 17)

B. No right accrues in favour of an
applicant merely on the strength of filing
of
an
application
pursuant
to
advertisement issued for appointment. The
advertisement issued for appointment can at
best be equated to an invitation to offer; an
expression occu

## Text

118 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 22.12.2018 passed by Chief Judicial
Magistrate, Hathras is cryptic and does not
stand the test of the law laid down by the
Apex Court. Consequently, the order dated
22.12.2018 cannot be legally sustained, as
the Magistrate failed to exercise the
jurisdiction vested in him/her resulting in
miscarriage of justice.

21. Accordingly, the present criminal
misc. application succeeds and is allowed
at the admission stage without issuing
notice to the prospective opposite parties,
as they have no right to be heard at precognizance stage. Order dated 22.12.2018
is, hereby, quashed.

22. The Chief Judicial Magistrate,
Hathras
is
directed
to
exercise
his
discretionary power and decide afresh the
application for summoning the applicants
and pass appropriate orders in accordance
with law keeping in view the observations
made by this Court as well as the direction
contained in the judgments referred to
above within a period of two months from
the date of production of a certified copy of
this order.

23. With the above direction, the
application stands allowed.
----------

(2020)11ILR A118
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.10.2020

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ-A No. 5414 of 2020

Manoj Kumar Singh & Ors. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents
Counsel for the Petitioners:
Sri Rakesh Kumar Verma, Sri Ashok Khare

Counsel for the Respondents:
C.S.C.

A. Service Law- Uttar Pradesh Retirement
Benefits Rules, 1961- U.P. Retirement
Benefits (Amendment) Rules, 2005
-
Pension
Any
delay
in
selection
for
appointment, ipso facto, cannot be a
ground to extend benefit of old pension
scheme
notwithstanding
the
clear
stipulation in the pension rule specifying
date
of
entry
in
service
to
be
determinative of the pension scheme.
(Para 30)

Distinction between Rules of recruitment
and conditions of service - Right to receive
pension is a statutory right and the pensionary
benefits can be claimed or granted only in
accordance with the applicable pension Rules.

(a) Rules of recruitment would regulate
different stages of recruitment i.e. from
the issuance of advertisement till the
issuance of appointment letter while
conditions of service would come into play
after appointment is offered. The expression
"conditions of service" is an expression of wide
import and means all such conditions which
regulate the holding of a post by a person right
from the time of his appointment till his
retirement and even beyond it in matters like
pension etc. (Para 12, 13, 15)

Terminal benefits as well as pensionary
benefits constitute conditions of service.
The employer has the undoubted power to
revise the salaries and/or the pay-scales as also
terminal benefits/pensioners benefits, as the
case may be, shall take effect is a concomitant
of the said power. So long as such date is
specified in a reasonable manner, i.e., without
bringing
about
a
discrimination
between
similarly situated persons, no interference is
called for by the Court in that behalf. (Para 14)

(b) The principle that rules of game
cannot be changed during the midst of
game itself would operate only till the
11 All. Manoj Kumar Singh & Ors. Vs. State of U.P. & Anr.
119
recruitment gets finalized and cannot be
stretched to include an exigency which
falls in the realm of conditions of service.
The principle would be exhausted as soon as
the appointment is made and the stages
thereafter, including the stage after retirement
like pension etc., would be governed exclusively
by the rules regulating conditions of service.
(Para 16)

The date on which the petitioners came to be
regulated by the service rules is the date of
issuance of their appointment letters i.e.
07.03.2006 and 19.04.2006). The old pension
scheme,
operating
on
the
date
of
advertisement, would have no relevance for the
purposes of applicability of pension scheme qua
the petitioners as evidently, prior to their
appointment, the rules relating to pension i.e.
Rules of 1961 had undergone change on
01.04.2005 and on the date of issuance of their
appointment letters, the new pension scheme
had come in vogue. (Para 17)

B. No right accrues in favour of an
applicant merely on the strength of filing
of
an
application
pursuant
to
advertisement issued for appointment. The
advertisement issued for appointment can at
best be equated to an invitation to offer; an
expression occurring in the realm of contract.
Application made against advertisement is akin
to an 'offer' which creates no right in favour of
the applicant/candidate. (Para 18, 19)

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

In the present case the petitioners have not
been able to demonstrate that they have been
arbitrarily discriminated or have been denied
appointment prior to 31st March, 2005. For any
delay in conclusion of selection, the previous
pension rules would not get attracted in view of
the express stipulation in the statutory rule
itself. Date of entry into service would
determine the applicability of pension rules by
virtue
of
the
U.P.
Retirement
Benefits
(Amendment) Rules, 2005, notified on 7.4.2005.
Petitioners have otherwise accepted the terms
of new pension scheme ever since their
appointment in the year 2006. No protest of any
kind was made during the last fourteen years.
Petitioners therefore, have acquiesced to the
new pension scheme and they cannot be
permitted
to
resile
from
its
applicability
particularly when no challenge is laid to the
statutory rule itself. (Para 28)

C. No sympathy can be claimed to override
express
provisions
contained
in
the
applicable pension rules. (Para 29)

Writ petition dismissed. (E-4)

Precedent followed:

1. St. of M.P. & ors. Vs Shardul Singh, (1970) 1
SCC 108 (Para 13)

2. St. of W.B. Vs Ratan Bihari Dey, (1993) 4 SCC
62 (Para 14)

3. A.A. Calton Vs Director of Education, AIR
1983 SC 1143 (Para 15)

4. Shankarsan Das Vs U.O.I. & ors., (1991) 3
SCC 47 (Para 18)

5. State of Bihar Vs Secretariat Assistant S.E.
Union & ors., (1994) 1 SCC 126 (Para 19)

6. U.O.I. Vs Kali Dass Batish, (2006) 1 SCC 779
(Para 19)

7. Punjab Electricity Board Vs Malkiat Singh,
(2005) 9 SCC 22 (Para 19)

8. Rakhi Rai Vs The High Court of Delhi, (2010)
2 SCC 637 (Para 19)

9. Vijoy Kumar Pandey Vs Arvind Kumar Rai &
ors., (2013) 11 SCC 611 (Para 19)

10. Naveen Kumar Jha Vs U.O.I. & ors., decided
by the Delhi HC on 02.11.2012 (Para 21)

11. Avinash Singh Vs U.O.I., Writ Petition (C)
No. 5400 of 2010 (Para 22)
120 INDIAN LAW REPORTS ALLAHABAD SERIES
12. Balwant Singh & ors.. Vs St. of Uttarakhand,
WP Nos. 16 and 944 of 2011 (Para 25)

13. Sudhir Kumar Consul Vs Allahabad Ban,
(2011) 3 SCC 486 (Para 29)

Precedent distinguished:

1. Firangi Prasad Vs St. of U.P. & ors., 2011 (2)
UPLBEC 987 (Para 4)

2. Mahesh Narayan & ors. Vs St. of U.P. & ors.,
Writ Petition No. 55606 of 2008 (Para 4)

3. Ashutosh Joshi & ors.Vs St. of Uttarakhand &
ors., Writ Petition (S/S) No. 1170 of 2010
decided on 17.06.2013 (Para 4)

4. Inspector Rajendra Singh & ors. Vs U.O.I.,
(2017) SCC Online Delhi 7879 (Para 4)

5. NCT Delhi Vs Ajay Kumar & ors. (Para 4)

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. Whether, delay in selection for
appointment, ipso facto, can be a ground to
apply pension scheme applicable on the
date of issuance of advertisement, for such
selection,
notwithstanding
specific
stipulation in the pension rules specifying
date of entry in the service to be
determinative of its applicability is the
question that arises for consideration in this
case.

2. Admitted facts in the context of
which the above question arises for
consideration are that an advertisement
came to be issued by the U.P. Public
Service Commission on 28th October, 2002
inviting
applications
for
appointment
against Combined Subordinate Services
(Preliminary) Exam, 2002. Last date for
making
application
as
per
the
advertisement was 28th October, 2002. The
recruitment was to be held in three stages
i.e. Preliminary test; Main written test and
lastly the Interview. All the petitioners
applied against the advertisement and
cleared
the
preliminary
examination
conducted on 30th March, 2003. Main
Written Examination followed between
17.8.2004 to 27.8.2004, wherein also the
petitioners
qualified.
Interview
was
conducted by the Commission between
9.5.2005 to 28.5.2005. The final select list
was published on 13.6.2005. After the
verification process was completed the
petitioners were issued appointment letters
on 7.3.2006 and 19.4.2006, pursuant to
which they have joined and are working in
different districts as Audit Officers. Some
of the petitioners are also working as
Assistant Accounts and Finance Officer.
New Pension Scheme enforced w.e.f.
1.4.2005 has been made applicable upon all
the petitioners and contribution from their
salary is also being deducted since their
initial appointment without any protest.

3. The process of recruitment had
commenced
in
October,
2002
and
petitioners contend that if it was concluded
within a reasonable period, they could have
been appointed before 31st of March, 2005
by when the erstwhile pension scheme was
applicable. Submission is that for any delay
occasioned in finalizing the recruitment
they ought not be put to an disadvantageous
position, as the terms of new pension
scheme are less favourable in comparison
to the terms contained in the old pension
scheme.

4. New Pension Scheme has been
enforced for government servants in State
of Uttar Pradesh vide notification dated
28th
March,
2005.
Uttar
Pradesh
Retirement
Benefits
Rules,
1961
(hereinafter referred to as 'the Rules of
1961'), which regulated the earlier pension
11 All. Manoj Kumar Singh & Ors. Vs. State of U.P. & Anr.
121
scheme also got amended vide U.P.
Retirement Benefits (Amendment) Rules,
2005 vide Notification, dated 7.4.2005. The
amended Rules and the Notifications
enforcing New Pension Scheme upon the
petitioners are not challenged in the writ
petition.
It
is,
however,
urged
that
petitioners are entitled to the benefit of
provisions under the Old Pension Scheme
which remained operative till 31st March,
2005 in view of the law laid down by the
Division Bench of this Court in Firangi
Prasad Vs. State of U.P. and others
reported in 2011 (2) UPLBEC 987, as also
a recent judgment of this Court in Mahesh
Narayan and others Vs. State of U.P. and
others, Writ Petition No. 55606 of 2008.
Contention is that delay in holding of
selection cannot prejudicially effect the
rights of the petitioners, inasmuch as, the
pension scheme as per the old rules
applicable on the date of advertisement
would have to be applied. Reliance is also
placed upon a judgment of the High Court
of Uttarakhand in Writ Petition (S/S) No.
1170 of 2010 (Ashutosh Joshi and others
vs. State of Uttarakhand and others),
decided on 17.6.2013, which has been
approved by the Division Bench with
dismissal of Special Appeal No. 330 of
2013 vide judgment dated 26.6.2014.
Reliance is placed upon the observation
made by the Uttarakhand High Court in
Ashutosh Joshi (supra) that as selection
process had already begun during currency
of
old
pension
scheme
and
the
advertisement also provided for the posts to
be pensionable, therefore, a contrary stand
would be impermissible. Petitioners have
also placed reliance on the judgment of the
Delhi High Court in Inspector Rajendra
Singh Vs. Union of India reported in (2017)
SCC Online Delhi 7879 as also the
subsequent decision of the same Court in
Govt. of NCT Delhi Vs. Ajay Kumar and
others against which a SLP filed before the
Supreme Court has also been dismissed.

5. Sri Ashok Khare, learned Senior
Counsel for the petitioners contends that
this Court in the case of Mahesh Narayan
(supra) has accepted similar contention of
the petitioners and the Old Pension Rules
have been made applicable even upon
persons appointed to the government
service after 1.4.2005 and, therefore, the
petitioners' are also entitled to similar
benefit.

6. Per-contra, learned State Counsel
states that the date of entry into service
would be the relevant date for applicability
of pension scheme and as the pension rules
have
not
been
questioned
as
such
petitioners are not entitled to any relief.

7. It is in the above context that the
question formulated requires consideration
by this Court.

8. The Rules of 1961 came to be
notified on 29.3.1962 under the proviso to
Article 309 of the Constitution of India and
was to apply upon all officers appointed
under the rule making power of the
Governor in the State of Uttar Pradesh. The
rules of 1961 came into force w.e.f. 1st
April, 1961 and provided for payment of
pension;
death-cum-retirement
gratuity;
nomination; family pension; commutation,
etc. Pension Scheme under the rules of
1961 allegedly contains more favourable
terms (hereinafter referred to as the 'old
pension scheme') than the Contributory
Pension Scheme introduced w.e.f. 1.4.2005
(hereinafter referred to as 'New Pension
Scheme'). Rules of 1961 have been
amended vide Uttar Pradesh Retirement
Benefits
(Amendment)
Rules,
2005,
notified on 7th April, 2005 w.e.f. 1.4.2005.
122 INDIAN LAW REPORTS ALLAHABAD SERIES
Clause (3) has been inserted in Rule 2 of
the Rules of 1961, which reads as under:-

"[(3) These Rules shall not apply
to employees entering services and posts on
or after April 1, 2005 in connection with
the affairs of the State, borne on
pensionable
establishment,
whether
temporary or permanent.]"

9. The provisions of General
Provident Fund (Uttar Pradesh) Rules,
1985 have also been amended vide
Notification, dated 7th April, 2005 so as to
exclude applicability of the Provident Fund
Rules of 1985 upon such government
servants who enter into service of State
after 1.4.2005.

10. Above noted statutory scheme
makes it explicit that all government
employees entering in the services of State
on or after 1.4.2005 on a pensionable post
will be governed by the 'New Pension
Scheme' and the provisions of 'Old Pension
Scheme' will not be applicable upon them.
Amendments incorporated in the statutory
rules are not under challenge. In addition to
the various judgments relied upon, the
petitioners also urge that the pension
scheme
applicable
on
the
date
of
advertisement
of
vacancy
would
be
applicable notwithstanding the contrary
stipulation in the Rules of 1961.

11. Before adverting to the judgments
relied upon on behalf of the petitioners, it
would be necessary to examine the legal
character of pension and the nature of right
that accrues to an employee to receive
pension as per the pension scheme
applicable on the date of advertisement.

12. Right to receive pension is a
statutory right and the pensionary benefits
can be claimed or granted only in
accordance with the applicable pension
Rules. Payment of salary, pension or other
benefits of service form part of the
conditions of service. Conditions of service
and rules of recruitment are two different
aspects which are dealt with distinctively in
law.

13. A distinction exists in law
between
Rules
of
recruitment
and
conditions of service which needs to be
noticed at this stage. Rules of recruitment
would
regulate
different
stages
of
recruitment i.e. from the issuance of
advertisement
till
the
issuance
of
appointment letter while conditions of
service would come into play after
appointment is offered. It has been
observed by the Apex Court in State of
Madhya Pradesh and others Vs. Shardul
Singh, (1970) 1 SCC 108, that the
expression "conditions of service" is an
expression of wide import and means all
such conditions which regulate the holding
of a post by a person right from the time of
his appointment till his retirement and even
beyond it in matters like pension etc. (See:
para 9).

14. Thus, payment of pension being
part of the conditions of service would be
governed by Rules relating to pension
where the post is pensionable. It would be
apposite to refer to the observation of the
Supreme Court in State of W.B. Vs. Ratan
Bihari Dey, (1993) 4 SCC 62, which is
reproduced:-

"7. ....... Now, it is open to the
State or to the Corporation, as the case
may be, to change the conditions of service
unilaterally. Terminal benefits as well as
pensionary benefits constitute conditions of
service. The employer has the undoubted
11 All. Manoj Kumar Singh & Ors. Vs. State of U.P. & Anr.
123
power to revise the salaries and/or the payscales as also terminal benefits/pensioners
benefits, as the case may be, shall take
effect is a concomitant of the said power. So
long as such date is specified in a
reasonable manner, i.e., without bringing
about a discrimination between similarly
situated persons, no interference is called
for by the Court in that behalf. ...."

15. As against this (conditions of
service) the Rules relating to recruitment
would regulate the stages spanning from
issuance of advertisement till issuance of
appointment letter. The recruitment process
has been equated in law with holding of a
'game' to apply the principle that rules of
game cannot be changed during its
continuance. Doing so would unsettle the
recruitment process and would thus become
arbitrary. (See. A.A. Calton Vs. Director of
Education, AIR 1983 SC 1143). The rules
applicable on the date of issuance of
advertisement would therefore continue to
operate so long as the recruitment exercise
itself is not concluded.

16. The aforesaid principle that rules
of game cannot be changed during the
midst of game itself would operate only till
the recruitment gets finalized and cannot be
stretched to include an exigency which falls
in the realm of conditions of service. The
principle would be exhausted as soon as the
appointment is made and the stages
thereafter,
including
the
stage
after
retirement like pension etc., would be
governed
exclusively
by
the
rules
regulating conditions of service.

17. The date on which the petitioners
came to be regulated by the service rules is
the date of issuance of their appointment
letters which is after 1.4.2005. Prior to this
date, there exists nothing in law that can be
regulated by the service rules governing the
post to which the petitioners had sought
appointment. The old pension scheme,
operating on the date of advertisement,
would therefore have no relevance for the
purposes of applicability of pension scheme
qua the petitioners as evidently, prior to
their appointment, the rules relating to
pension i.e. Rules of 1961 had undergone
change and on the date of issuance of their
appointment letters, which is the relevant
date, on which the rules regulating
conditions of service became applicable,
the new pension scheme had come in
vogue.

18. Law is settled that no right
accrues in favour of an applicant merely
on the strength of filing of an application
pursuant to advertisement issued for
appointment. The advertisement issued
for appointment can at best be equated to
an invitation to offer; an expression
occurring in the realm of contract.
Application made against advertisement
is akin to an 'offer' which creates no right
in favour of the applicant/candidate. The
applicant has to undergo various stages of
recruitment
in
accordance
with
the
provisions contained in the applicable
recruitment rules and the advertisement
for selection. It is only thereafter that
name of the candidate is included in the
select list. The nature of right accrued in
favour of a selected candidate is also
settled. In Shankarsan Das Vs. Union of
India and others (1991) 3 SCC 47 a
Constitution Bench of the Apex Court
examined whether a selected candidate
acquires an indefeasible right to be
appointed against available vacancies.
The contention advanced in that regard
has
been
specifically
repelled
in
paragraph 7 of the judgment which is
reproduced hereinafter:-
124 INDIAN LAW REPORTS ALLAHABAD SERIES

"7. It is not correct to say that if a
number of vacancies are notified for
appointment and adequate number of
candidates are found fit, the successful
candidates acquire an indefeasible right to
be appointed which cannot be legitimately
denied. Ordinarily the notification merely
amounts to an invitation to qualified
candidates to apply for recruitment and on
their selection they do not acquire any right
to the post. Unless the relevant recruitment
rules so indicate, the State is under no legal
duty to fill up all or any of the vacancies.
However, it does not mean that the State
has the licence of acting in an arbitrary
manner. The decision not to fill up the
vacancies has to be taken bona fide for
appropriate reasons. And if the vacancies
or any of them are filled up, the State is
bound to respect the comparative merit of
the
candidates,
as
reflected
at
the
recruitment test, and no discrimination can
be permitted. This correct position has been
consistently followed by this Court, and we
do not find any discordant note in the
decisions in State of Haryana v. Subhash
Chander Marwaha, (1974) 1 SCR 165,
Neelima Shangla v. State of Haryana,
(1986) 4 SCC 268 or Jatendra Kumar v.
State of Punjab, (1985) 1 SCR 899."

19. Above view has been consistently
followed in State of Bihar Vs. Secretariat
Assistant S.E. Union and others, (1994) 1
SCC 126; Union of India Vs. Kali Dass
Batish, (2006) 1 SCC 779; Punjab State
Electricity Board Vs. Malkiat Singh, (2005)
9 SCC 22; Rakhi Rai Vs. The High Court of
Delhi, (2010) 2 SCC 637 and Vijoy Kumar
Pandey Vs. Arvind Kumar Rai and others,
(2013) 11 SCC 611. The law is clear that
merely on being selected a candidate does
not acquire an indefeasible right to be
appointed unless the relevant recruitment
rules so provide. State is not under any duty
to fill up all or any of the vacancies. The
only exception to the proposition is that
State cannot act in an arbitrary manner
while making appointment. The limited
right in the selected candidate, therefore, is
of protection against arbitrary action of the
State in denying him appointment.

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

21. In Inspector Rajendra Singh
(supra), the petitioners were selected but
were declared medically unfit. Petitioners
therein were then examined in other
hospitals and were found not to be
suffering from any deformity/illness. They
applied for review medical board. While
matter was pending before the review
medical board the Commission declared
results of all other selected candidates,
except
the
petitioners.
Different
paramilitary forces were allocated to them
and appointment letters were also issued.
Such candidates also joined on or before
31st December, 2003, which was prior to
the introduction of the New Pension
Scheme. Ultimately the petitioners were
also appointed, but their joining was after
the New Pension Scheme had been
enforced. The Delhi High Court found that
denial
of
appointment
to
petitioners
alongwith
other
similarly
selected
candidates was arbitrary. Since other
selected candidates including those placed
lower in merit than petitioners were offered
appointment prior to 31st December, 2003,
11 All. Manoj Kumar Singh & Ors. Vs. State of U.P. & Anr.
125
while
the
old pension
scheme
was
applicable, therefore, Old Pension Scheme
was extended to petitioners also. Similar
were the facts in the case of Naveen Kumar
Jha Vs. Union of India and others, decided
by Delhi High Court on 2.11.2012.

22. In paragraph 17 of the judgment
in Avinash Singh Vs. Union of India, Writ
Petition (C) No. 5400 of 2010, the Court
observed
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 of the date
on which a person is made to join. All other
judgments of the Delhi High Court, which
have been relied upon by the petitioners,
therefore, are on the facts of its own,
inasmuch
as,
the
Court
found
that
petitioner's
right
to
appointment
got
crystallized during the old pension rules
and while similarly placed persons were
appointed and extended the benefit of old
pension scheme, as such, the petitioners
cannot be discriminated. These judgments
clearly are covered by the exception carved
out in the case of Shankarsan Das (supra).
None of the judgments of the Delhi High
Court relied upon by the petitioners lay
down any proposition that merely on
account of delay in holding of selection the
pension rules applicable on the date of
advertisement would become applicable
upon the employee notwithstanding the fact
that new pension scheme had come into
play.

23. The Division Bench Judgment of
this Court in the case of Firangi Prasad
(supra) also dealt with a different exigency.
In Firangi Prasad (supra) the appellant was
appointed on adhoc basis in a selection held
by District Inspector of Schools on
5.1.1993 who was the competent authority.
Appointment, however, was to be offered
by the private management within ten days
as per the scheme. However, for no obvious
reason the private management denied
issuance of appointment letter within ten
days and ultimately the appointment was
offered on 25.8.1993. The applicable U.P.
Secondary Education Service Selection
Boards Act,
1982 got
amended
on
20.4.1998 and adhoc appointments made
till 6.8.1993 were to be regularized. The
question before the Division Bench was as
to whether benefit of regularization could
be denied to the appellants. The Division
Bench held that the appellant since was
arbitrarily denied appointment by the
private management, though the appellant
stood selected, therefore, his appointment
would be treated in law to have been made
prior to 6.8.1993. This case would also be
covered within the exception carved out in
Shankarsan Das (supra) as appointment had
been arbitrarily denied to the selected
candidate.

24. Facts occurring before the
Uttarakhand High Court in Ashutosh Joshi
(supra) also are distinct. Vacancy was
advertised on 5.10.2003 for appointment to
be made in different Intermediate Colleges.
Vacancies for men were 1120 while for
women it was 99. Both male and female
candidates applied and while women
candidates were appointed during old
pension rule the male candidates got
appointed after the new pension scheme
was introduced. Court found that both men
and women candidates were evenly placed
and any delay in offering appointment to
male candidates would not disentitle them
from the benefit of old pension scheme as
similarly placed women candidate were
covered by the old pension scheme.
Although a passing observation is made
that selection having commenced during
126 INDIAN LAW REPORTS ALLAHABAD SERIES
old pension scheme would be applicable
upon male candidates appointed later, yet,
this observation has to be read in the
context of the fact that similarly placed
women candidate were covered by the old
pension rule. The Court apparently was
protecting
the
petitioners
against
an
arbitrary scenario and thus this case also
falls
in
the
excepted
category
in
Shankarsan Das (supra).

25. The Judgment of Uttarakhand
High Court in Balwant Singh and others
Vs. State of Uttarakhand (Writ Petition No.
16 and 944 of 2011) was also a case where
persons selected together were being
subjected to different pension scheme
based upon the fortuitous circumstance i.e.
delay in appointment to some. The Division
Bench, however, has observed that service
conditions
prevailing
on
the
commencement of recruitment process
cannot be altered to the detriment of
recruitees. This observation of the Division
Bench, with utmost respect, does not
correctly lay down the law as the
distinction between rules of recruitment
and conditions of service have been
ignored. The principle that rules of
recruitment cannot be changed can have no
applicability in a scenario where conditions
of service is changed on account of change
in the service rules.

26. In Mahesh Narayan and others
(supra) a co-ordinate bench of this Court
had the occasion to consider a case where
recruitment commenced vide notification
dated
20.10.1999
in
respect
of
a
pensionable post. The recruitment got
delayed on account of a dispute raised
before this Court. Although by virtue of the
order passed in Special Appeal No. 485
(S/B) of 2001, dated 29.12.2001, there was
no
impediment
in
completion
of
recruitment but the selection got completed
only after dismissal of writ petition on
5.7.2005.
In
between,
a
subsequent
advertisement was issued and the selected
candidates were appointed prior to 1.4.2005
i.e. during the Old Pension Scheme. The
notifications dated 28.3.2005, 7.4.2005 and
the amended rules of 2005 were challenged
as
not
being
applicable
upon
the
petitioners. The writ petition has been
partly allowed in view of the observations
extracted hereinafter:-

"So far as facts of the case are
concerned, there is no dispute on the point
that pursuant to advertisement No. A-3/E1/2000, advertisement was issued in news
paper on 22.12.2000 and as per order of
this Court dated 29.12.2001 passed in
Special Appeal No. 485 (S/B) of 2001
(supra), there was no legal impediment in
completition of recruitment process, but dut
to inaction on the part of respondents, it
was completed only after dismissal of writ
petition on 05.07.2005. Final selected list
of selected candidate was published in
daily newspaper 'Dainik Jagran' dated
12.03.2006 and thereafter appointment
letters were issued. It is also not disputed
that in between again in subsequent
advertisement
No.
A-3/E-1/2002,
recruitment was completed and candidates
had been granted appointment prior to
01.04.2005 and getting the benefit of 'Old
Pension Scheme'. "

27. The judgment in the case of
Mahesh Narayan (supra) is again on the
facts of its own, inasmuch as, the
recruitment process was delayed for no
obvious reason and persons appointed
pursuant to a subsequent notification were
appointed earlier and were granted the
benefit of old pension rules. Persons
appointed against a previous advertisement
11 All. Dineshe Chandra Tripathi Vs. State of U.P. & Ors.
127
cannot be denied benefits which have
already been extended to the appointees of
a later recruitment exercise. The protection
in the form of benefit under old pension
rules has been extended only to protect
against an arbitrary act. This judgment also
does not lay down any proposition that
delay in concluding selection would ipso
facto result in applicability of old pension
scheme.

28. The petitioners have not been able
to demonstrate that they have been
arbitrarily discriminated or have been
denied appointment prior to 31st March,
2005. For any delay in conclusion of
selection the previous pension rules would
not get attracted in view of the express
stipulation in the statutory rule itself. Date
of entry into service would otherwise
determine the applicability of pension rules
by virtue of the U.P. Retirement Benefits
(Amendment) Rules, 2005, notified on
7.4.2005.
Petitioners
have
otherwise
accepted the terms of new pension scheme
ever since their appointment in the year
2006. No protest of any kind was made
during the last fourteen years. Petitioners
therefore, have acquiesced to the new
pension scheme and they cannot be
permitted to resile from its applicability
particularly when no challenge is laid to the
statutory rule itself.

29. It is otherwise settled that no
sympathy can be claimed to override
express
provisions
contained
in
the
applicable pension rules. In a matter arising
out of claim of pension the Supreme Court
in Sudhir Kumar Consul Vs. Allahabad
Bank, (2011) 3 SCC 486, observed as
under:-

"31. We have sympathies for the
appellant but, in a society governed by
Rule of law, sympathies cannot override the
Rules and Regulations. We may recall the
observations made by this Court while
considering the issue of compassionate
appointment in public service.

32. In Life Insurance Corporation
of India v. Asha Ramachhandra Ambekar
and Anr. (1994) 2 SCC 718, wherein the
Court observed:

"The
High
Courts
and
the
Administrative Tribunals cannot confer
benediction
impelled
by
sympathetic
consideration.... Yielding to instinct will
tend to ignore the cold logic of law. It
should be remembered that "law is the
embodiment
of
all
wisdom".
Justice
according to law is a principle as old as the
hills. The Courts are to administer law as
they find it, however, inconvenient it may
be."

30. In view of the discussions aforesaid,
this Court is of the considered opinion that
any delay in selection for appointment, ipso
facto, cannot be a ground to extend benefit of
old pension scheme notwithstanding the clear
stipulation in the pension rule specifying date
of entry in service to be determinative of the
pension scheme.

31. Writ petition lacks merit and is
dismissed.
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(2020)11ILR A127
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.11.2020

BEFORE

THE HON'BLE MANISH KUMAR, J.

Service Single No. 5511 of 2015

Dineshe Chandra Tripathi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents