# Nirupma Malviya v. The State of U.P. & Ors

- **Citation:** (2023) 10 ILRA 926
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-19
- **Case number:** Writ-A No. 67274 of 2015
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nirupma-malviya-v-the-state-of-u-p-ors-49359
- **Pages:** 9

## Headnote

Civil Law - Constitution of India,1950 -
Article 14 - Uttar Pradesh Secondary
Education Services Selection Board Rules,
1998 - Rules 8, 10, 13 - Old Pension Scheme
- New Pension Scheme - Recruitment Process -
Crystallization of Rights - Writ challenging the
denial of benefits under the Old Pension Scheme
to the petitioner, selected as a Lecturer in
Economics (General Category) vide placement
order dated 01.12.2004 by the Uttar Pradesh
Secondary Education Services Selection Board,
Allahabad. The petitioner was selected through
a recruitment process initiated in 2003 but faced
delays in joining due to resistance from college
managements at Sanatan Dharm Kanya Inter
College, Meerut, and Janta Girls Inter College,
Lucknow, and an interim court order. She joined
Zila Panchayat Balika Inter College, Gyanpur,
Bhadohi on 02.08.2006, after a court directive.
The court held that the petitioner's right to the
Old Pension Scheme crystallized on 01.12.2004,
when the Selection Board issued the placement
order, predating the New Pension Scheme's
introduction on 01.04.2005 (Government Order
dated 28.03.2005). Delays due to institutional
resistance or administrative inaction could not
deprive her of her rights, as such deprivation
violated Article 14. The court followed Mahesh
Narayan and B. Vallipavai, holding that pension
rights are determined by the date of recruitment
commencement or placement order, not actual
joining. Respondents directed to treat the
petitioner under the Old Pension Scheme with
appropriate deductions and benefits.

Writ petition allowed.

Case Law Cited:

## Text

926 INDIAN LAW REPORTS ALLAHABAD SERIES
Basic
Education
Officer,
Budaun
cancelling the appointment of the petitioner
from the date of her initial appointment, is
quashed. The respondents are directed to
allow the petitioner to work on the post of
Assistant
Teacher
in
terms
of
her
appointment order dated 11.12.2020 and
are also directed to pay her salary regularly.
----------
(2023) 10 ILRA 926
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.10.2023

BEFORE

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

Writ-A No. 67274 of 2015

Nirupma Malviya ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Smt. Arti Raje

Counsel for the Respondents:
C.S.C., Sri Ashok Kumar Yadav, Sri Shivendra

Civil Law - Constitution of India,1950 -
Article 14 - Uttar Pradesh Secondary
Education Services Selection Board Rules,
1998 - Rules 8, 10, 13 - Old Pension Scheme
- New Pension Scheme - Recruitment Process -
Crystallization of Rights - Writ challenging the
denial of benefits under the Old Pension Scheme
to the petitioner, selected as a Lecturer in
Economics (General Category) vide placement
order dated 01.12.2004 by the Uttar Pradesh
Secondary Education Services Selection Board,
Allahabad. The petitioner was selected through
a recruitment process initiated in 2003 but faced
delays in joining due to resistance from college
managements at Sanatan Dharm Kanya Inter
College, Meerut, and Janta Girls Inter College,
Lucknow, and an interim court order. She joined
Zila Panchayat Balika Inter College, Gyanpur,
Bhadohi on 02.08.2006, after a court directive.
The court held that the petitioner's right to the
Old Pension Scheme crystallized on 01.12.2004,
when the Selection Board issued the placement
order, predating the New Pension Scheme's
introduction on 01.04.2005 (Government Order
dated 28.03.2005). Delays due to institutional
resistance or administrative inaction could not
deprive her of her rights, as such deprivation
violated Article 14. The court followed Mahesh
Narayan and B. Vallipavai, holding that pension
rights are determined by the date of recruitment
commencement or placement order, not actual
joining. Respondents directed to treat the
petitioner under the Old Pension Scheme with
appropriate deductions and benefits.

Writ petition allowed.

Case Law Cited:

1. Mahesh Narayan Vs St. of U.P., 2019 SCC
OnLine All 5325 (Para 17)

2. St. of U.P. Vs Mahesh Narain, Special Appeal
Defective No. 117 of 2021 (Para 18)

3. B. Vallipavai Vs St. of Tamilnadu, 2023 SCC
OnLine Mad 5035 (Para 19)

4. St. of Uttarakhand Vs Balwant Singh, Special
Appeal No. 330 of 2013 (Para 20)

5. M.R. Gurjar Vs U.O.I., 2021 SCC OnLine Del
569 (Para 20)

6. P. Ranjitharaj Vs St. of Tamilnadu, 2022 SCC
OnLine SC 508 (Para 20)

7.
Chairman,
Railway
Board
Vs
C.R.
Rangadhamaiah, (1997) 6 SCC 623 (Para 20)

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

1. This writ petition has been
instituted by Nirupama Malviya praying
that a mandamus be issued, commanding
the respondents to place the petitioner
under the old pension scheme and provide
all benefits of that scheme, treating her to
be placed/ appointed on 25.11.2004 as a
Lecturer in Economics (General Category)
in terms of the order of the Secretary, Uttar
10 All. Nirupma Malviya Vs. The State of U.P. & Ors.
927
Pradesh Secondary Education Services
Selection
Board,
Allahabad
dated
25.11.2004. A further direction has been
sought commanding the respondents to
deduct the requisite sum of money from the
petitioner's salary in the same manner as in
the case of any other lecturer, serving under
the old pension scheme.

2. The facts giving rise to this petition
merit a brief reference. The Uttar Pradesh
Secondary Education Service Selection
Board, Allahabad (for short, 'the Selection
Board')
advertised
various
posts
of
Lecturers in the subject of Economics to be
filled up through direct recruitment vide
Advertisement No.1 of 2003 for girls
colleges,
recognized
by
the
State
Government and managed by private
managements. The petitioner applied for
the post of a lecturer in response to the
advertisement. The petitioner sat the
written examination held by the Selection
Board on 03.08.2003 at the Colonelganj
Inter College, Allahabad. The result of the
written examination was declared on
26.09.2004
and
duly
published
in
newspapers. The petitioner was declared
successful. The petitioner's roll number
was 020811333. The Selection Board
invited the petitioner to interview vide call
letter dated 08.10.2004, the interview being
scheduled on 29.10.2004, along with
educational testimonials in original, besides
other necessary documents, mentioned in
the call letter. The petitioner appeared at the
interview. The Selection Board drew up
and
published
a
panel
of
selected
candidates, mentioning their names and the
colleges where they had been placed vide
notification dated 01.12.2004 issued by the
Secretary to the Selection Board. The
petitioner was shown to be placed with the
Sanatan Dharm Kanya Inter College, Sadar,
Meerut.

3. Upon allotment of the college, the
petitioner went to the Sanatan Dharm
Kanya Inter College, Meerut to join her
duties. The Principal of the college,
however, refused to accept her joining
report, saying that she is in need of a
lecturer in Economics and Sociology. The
District Inspector of Schools-II, Meerut
issued a memo dated 25.01.2005 to the
Secretary of the Selection Board, regarding
the petitioner's absorption. The District
Inspector
of
Schools
intimated
the
Secretary of the Selection Board that the
Principal of the Sanatan Dharm Kanya
Inter College, Meerut had intimated him of
the fact that she has the requirement for a
lecturer in Economics and Sociology. It
was, therefore, not possible to post the
petitioner with the said college. It was also
recommended
that
the
petitioner
be
adjusted in some other institution or
district, and that for the institution, a
candidate be sent, who is a lecturer in
Economics and Sociology. The petitioner
then sent an application to the Secretary of
the Selection Board dated 27th January,
2005, requesting that she may be placed
with some institution in District Allahabad
or Lucknow.

4. The State Government issued a
Government Order No. सा-3-379/िस-2005301(9)-2003 dated 28th March, 2005,
introducing
the
contributory
pension
scheme, instead of the pension-cum-general
provident fund scheme. The contributory
pension scheme was introduced for new
recruitments made after 1st April, 2005 as
the Government Order dated 28th March,
2005 shows. The Secretary of the Selection
Board on 07.07.2005 allotted the Janta
Girls Inter College, Alam Bagh, Lucknow
to the petitioner. The petitioner went to the
Janta Girls Inter College, Alam Bagh,
Lucknow to join duties. The petitioner was,
928 INDIAN LAW REPORTS ALLAHABAD SERIES
however, not permitted to join by the said
college on the ground that one Smt. Anita
Singh, Assistant Teacher with the Janta
Inter College aforesaid had filed a writ
petition, being Writ Petition No. 5356 (S/S)
of 2005, where she had been granted an
interim order dated 03.10.2005. The
college, therefore, took a stand that the
petitioner be absorbed in some other
institution. The District Inspector of
Schools-II, Lucknow addressed a memo
dated 20.10.2005 to the Secretary of the
Selection Board, apprising him of the
inability of the Janta Inter College, Alam
Bagh, Lucknow to appoint the petitioner
because of the stay order passed by the
Lucknow Bench of this Court.

5. The petitioner, in the face of this
consistent obstruction of her rights, filed
Civil Misc. Writ Petition No. 74936 of
2005 for an appropriate direction to the
Selection Board and the Authorities to
ensure her placement. The writ petition was
dismissed on the ground of lack of
territorial jurisdiction with liberty to the
petitioner to file a writ petition, if so
advised, before the Lucknow Bench. The
petitioner then filed a writ petition, being
Writ Petition No. 3371 (S/S) of 2006,
seeking enforcement of her rights to be
placed and appointed with a suitable
institution. The Lucknow Bench of this
Court vide order dated 21.04.2006 directed
the Secretary of the Selection Board to
ensure appointment of the petitioner in any
other institution, within a period of one
month. It was then that the Adhyaksha, Zila
Panchayat, Sant Ravidas Nagar, Bhadohi
issued a letter of appointment dated
01.08.2006 in the petitioner's favour
appointing her with the Zila Panchayat
Balika Inter College, Gyanpur, Bhadohi.
The petitioner joined the said college on
02.08.2006. The petitioner was transferred
from the Zila Panchayat Balika Inter
College, Gyanpur, Bhadohi to the Gauri
Pathshala Inter College, Allahabad vide
transfer order dated 08.01.2010 passed by
the Additional Director of Education
(Secondary), Uttar Pradesh. In compliance
with the transfer order dated 08.01.2010,
passed by the Additional Director of
Education aforesaid, the petitioner joined
her duties at the Gauri Pathshala Inter
College, Allahabad.

6. The petitioner says that she is
working with the Gauri Pathshala Inter
College, Allahabad on a regular basis till
date. The petitioner has approached the
respondent Authorities time and again since
1st January, 2007, moving applications for
the purpose of placing her under the old
pension
scheme.
The
basis
of
the
petitioner's claim is that she was selected
by the Selection Board in terms of
Advertisement No. 1 of 2003, and similarly
situate selectees have been extended the
benefit of the old pension scheme. The
petitioner last represented the matter on
15.11.2015 to the District Inspector of
Schools-II, Allahabad (now Prayagraj),
praying that her case be considered for
placing her under the old pension scheme
and providing all benefits appended to that
scheme in the same manner as other
selectees, who were selected in the
recruitment process initiated on the basis of
Advertisement No. 1 of 2003.

7. The grievance of the petitioner is
that till date she has not received any
response from the District Inspector of
Schools, Prayagraj or any other Authority
competent. The petitioner further says that
the delay in the issue of appointment letter
and joining the institution at Lucknow, is
not on account of the petitioner's fault. The
petitioner says that it is settled law that on
10 All. Nirupma Malviya Vs. The State of U.P. & Ors.
929
account of a mistake or inaction of others,
the one who gets delayed in the realization
of his/ her rights, cannot be made to suffer
the consequences of the delay. The
petitioner says that she is entitled to the
benefit of the old pension scheme in the
same manner as any appointee appointed
prior to 1st April, 2005, because she is
indeed
selected
and
directed
to
be
appointed by the statutory Authority, the
Selection
Board,
vide
order
dated
01.12.2004, allotting her the Sanatan
Dharm Kanya Inter College, Sadar, Meerut.
The new pension scheme was introduced
much later on 28th March, 2005 w.e.f.
01.04.2005. The petitioner's right antedate
to a time much prior to the introduction of
the new pension scheme. It is on the said
basis that the petitioner has moved this
Court, praying that a mandamus be issued
in the terms indicated.

8. In the counter affidavit filed on
behalf of the District Inspector of
Schools-II, Allahabad (now Prayagraj)
dated 12th September, 2017, it is averred
in Paragraph No.4 that the petitioner has
claimed her date of appointment to be
25.11.2004, and on that basis a right to
pension under the old pension scheme,
which is not admissible to her as she has
joined service on 02.08.2006 at the Zila
Panchayat Balika Inter College, Gyanpur,
Bhadohi as a lecturer in Economics. The
case of the District Inspector of Schools is
that it is with reference to the petitioner's
actual date of joining service that her right
to receive pension would be governed. The
new pension scheme has been introduced
w.e.f.
01.04.2005
in
terms
of
the
Government
Order
dated
28.03.2005,
whereas the petitioner's appointment is one
made on 02.08.2006. She cannot, therefore,
claim the benefit of the old pension
scheme.

9. A rejoinder affidavit has been filed
in answer to the counter affidavit filed by
the District Inspector of Schools. The stand
taken about the petitioner's right in the writ
petition has been reiterated and it is the
petitioner's
case
that
her
right
to
appointment would be governed by her first
appointment ordered by the Selection
Board. The delay in placement, on account
of
obstructing
college
managements,
cannot defeat her rights to be governed by
the old pension scheme.

10. Heard Ms. Arti Raje, learned
Counsel for the petitioner in support of this
petition and Mr. Dinesh Kumar Singh,
learned Additional Chief Standing Counsel
on behalf of respondent Nos. 1, 3, 4 and 5.
No one appears on behalf of respondent
Nos. 2 and 6.

11. The question is that, the petitioner
being selected pursuant to a recruitment
process that commenced much before the
new pension scheme was introduced and
directed to be appointed as well, before the
cut-off date, under the Government Order
dated 28th March, 2005 i.e. 01.04.2005, is
she entitled to trace her rights to the date of
her placement order issued by the Selection
Board for the purpose of determining the
applicable pension scheme.

12. To the understanding of this
Court, the petitioner's right is traceable to a
recruitment process that commenced much
before the new pension scheme was
introduced. More than that, the petitioner's
right to be appointed was crystallized in
terms of the placement order dated
01.12.2004, issued by the Selection Board.
In the normal run of things, the petitioner,
who reported promptly for joining the
Sanatan Dharm Kanya Inter College, Sadar,
Meerut, decidedly before 25th January,
930 INDIAN LAW REPORTS ALLAHABAD SERIES
2005, when the District Inspector of
Schools wrote his letter to the Selection
Board, saying that the management of that
college are not willing to accommodate and
permit the petitioner to join, if permitted to
join duties at any time after 01.12.2004 and
before 25.01.2005, would have been within
the cut-off date without cavil. Whoever
faltered, that led to the delay in the
petitioner's appointment, was attributable
either to the Secretary of the Selection
Board in choosing the college to place the
petitioner, or a recalcitrant college at
Meerut, which did not permit the petitioner
to join. By now, it is common knowledge in
this state of which judicial notice may be
taken, that colleges, run by private
management, hinder and resist candidates
selected by the Statutory Selection Board
from joining their institutions. The devices
are many. One of them is through the
judicial process also, where an officiating
candidate, not regularly selected, may make
out a case for an interim order, pending
hearing of his/ her substantive claim to
something like regularization, permitting
the candidate to continue. This happened in
the petitioner's case with the college at
Lucknow.

13. This is not to say that the
placement there is at all relevant for the
purpose of judging the petitioner's right to
be appointed or that the interim order,
operating in the case of the college at
Lucknow, was undesirably obtained, but
the reality of the matter is that a regularly
selected
candidate
does
suffer
postponement of the fruits of his/ her
appointment,
notwithstanding
his/
her
finally crystallized rights. An order by the
Selection Board, preparing a panel list of
candidates and allocating an institution to a
particular
candidate, is
not
a
mere
selection, but a crystallized right of the
candidate under sub-Rule (8) and sub-Rule
(10) of the Uttar Pradesh Secondary
Education Services Selection Board Rules,
1998 (for short, 'the Rules of 1998'), that
has to be enforced by the District Inspector
of Schools under Rule 13 of the aforesaid
Rules. The management of the institution is
obliged to comply with the directions given
by the District Inspector of Schools to
appoint in accordance with the allocation of
institution made to a selected candidate by
the Selection Board. There is a complete
mechanism for enforcement of the Board's
selection and allocation under Rule 13 of
the Rules of 1998.

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
01.12.2004. 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 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
10 All. Nirupma Malviya Vs. The State of U.P. & Ors.
931
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 01.12.2004 or at any time before
25.01.2005, 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.

17. A similar question arose before a
learned Single Judge of this Court in
Mahesh Narayan and others v. State of
U.P. and others, 2019 SCC OnLine All
5325, where after considering a wealth of
authorities, some running contra as well, it
was held:

"21. From the perusal of judgments of
Satyesh Kumar Mishra (Supra) and Firangi
Prasad (Supra), there is no doubt on the
point that similar dispute was before this
Court in the matter of Satyesh Kumar
Mishra (Supra), which was dismissed by
this Court against which Special Appeal
Defective No. 480 of 2016 is pending. It is
also not disputed that legal issue involved
in the matter of Satyesh Kumar Mishra
(Supra) was also before Division Bench of
this Court in the matter of Firangi Prasad
(Supra) where the Court has clearly held
that on the fault of appointing authority in
issuing
appointment
letter,
petitioners
cannot be put any type of disadvantage. It
appears that at the time of deciding the
matter of Satyesh Kumar Mishra (Supra),
judgement of Firangi Prasad (Supra) was
not placed before this Court, therefore,
without considering the same, decision was
given in the matter of Satyesh Kumar
Mishra (Supra). Under such facts and
circumstances,
judgement
of
Satyesh
Kumar Mishra (Supra) is per incuriam and
cannot be treated as precedent in the
present case and will not come in the
rescue of respondents.

22. The controversy and question of
law involved in the present case is squarely
covered with the judgement of Firangi
Prasad (Supra) as well as other judgments
relied upon by learned counsel for the
petitioners
and
Courts
have
taken
consistant view that respondents cannot by
their inaction deprive a candidate to his
legitimate right.

23. 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
932 INDIAN LAW REPORTS ALLAHABAD SERIES
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'.

24. Therefore, considering the facts
and circumstances of the case and legal
position discussed herein above, writ
petition is partly allowed and petitioners
are excluded from the effect and
operation
of
Notification
dated
28.03.2005 and 07.04.2005 as it is in
violation of Article 14 of Constitution of
India as well as law laid down by the
Courts."

18. The decision of the learned
Single Judge in Mahesh Narayan
(supra) was appealed by the State to the
Division Bench, which upheld the same,
approving the principle followed by the
Single Judge vide their Lordships'
judgment and order rendered in Special
Appeal Defective No. 117 of 2021,
State of U.P. and others v. Mahesh
Narain
and
others,
decided
on
19.02.2021.

19. The question and the principle,
that
is
involved
here,
fell
for
consideration of the Madras High Court
in
a
very
recent
decision
in
B.
Vallipavai v. State of Tamilnadu and
others, 2023 SCC OnLine Mad 5035. It
arose before the Court in B. Vallipavai
(supra) in the context of a different
statutory regime relating to that State. The
facts, giving rise to the issue in B.
Vallipavai, may best be recapitulated the
way these have been described by the
learned Judge:

"2. The fifth respondent school,
namely
Arulmigu
Subramaniyaswamy
Andavar Girls Higher Secondary School
run by the temple through HR&CE
Department. It is an aided institution and
governed by the provisions of Tamilnadu
Recognised Private School Regulations
Act, 1973 and Rules, 1974. A vacancy was
arose for the post of B.T. Teacher(Science)
in
the
fifth
respondent
school
on
09.11.2002 due to voluntary retirement of
Tmt. Kanchana Mallika on 08.11.2002.
Therefore, the fifth respondent sought
permission to fill up the said post in the
month
of
December
2002
on
the
recommendation of the fourth respondent
dated 10.02.2003 to fill up the post of B.T.
Assistant. On such permission, the fifth
respondent had notified vacancy in the
District
Employment
Exchange
and
requested a list of suitable candidates by
letter dated 02.03.2003. The District
Employment Exchange had furnished list
of candidates to the fifth respondent school
by letter dated 28.03.2003. Accordingly, the
petitioner was directed to receive call letter
from the fifth respondent for interview to
be held on 10.04.2003.
3. The petitioner appeared for interview
and on her merit and ability, the fifth
respondent
school
selected
her
and
appointed as B.T. Assistant by order dated
17.04.2003. She had joined in the service
on the same day. Her appointment was
approved by the fourth respondent by the
proceedings dated 31.07.2004. But it was
with effect from 17.04.2003. She has been
enrolled for Teachers Provident Fund and
she was given TPF No. 339415. While
being so, the fourth respondent by the
proceedings had informed the petitioner
that her appointment was made after
10 All. Nirupma Malviya Vs. The State of U.P. & Ors.
933
01.04.2003 and as such, as per the
Government Order in GO(Ms). No. 259
dated 06.08.2003, she had not been been
eligible for TPF scheme and directed to get
new
number
under
the
Contributory
Pension Scheme for deductions. Therefore,
the
petitioner
made
representation
requesting to continue her in the old
pension scheme."

20. The Court took into consideration
the principle that right to be governed by
the old pension regime would be governed
by the rules and the pension scheme that
was in force, when process of recruitment
commenced. The learned Judge took into
consideration the decision of a Division
Bench of the Uttarakhand High Court in
Special Appeal No. 330 of 2013, State of
Uttarakhand v. Balwant Singh, decided
on 26.06.2014, the decision of the Delhi
High Court in M.R. Gurjar v. Union of
India, 2021 SCC OnLine Del 569 and the
authority of the Supreme Court in P.
Ranjitharaj v. State of Tamilnadu and
others, 2022 SCC OnLine SC 508, and
held:

"10. .... The contributory pension
scheme was brought into force from
01.01.2004, whereas vacancy arose for the
post of B.T. Assistant as early as on
09.11.2002
itself.
After
obtaining
permission from the third respondent to fill
up the vacancy, the fifth respondent
requested
the
District
Employment
Exchange for list of suitable candidates by
letter
dated
02.03.2003
itself.
After
furnishing of the list of candidates, the
petitioner was called for interview to be
held on 10.04.2003. Therefore, the option
to continue the old pension scheme must be
extended to all those persons who were
participated in the selection prior to the
crucial date, but however got appointment
letter after crucial date. Though GO. No.
259 dated 06.08.2003 with effect from
01.04.2003 and the old pension scheme
will not apply to the Government service
who are appointed on or after 01.04.2003.
11. The process of appointment was started
from the date of vacancy and ended with
the
issuance
of
appointment
orders.
GO.Ms. No. 259 (Finance) Pension dated
06.08.2003, which brought in a New
Pension
Scheme
with
retrospective
operation. Because of the retrospective
operation of the New Pension Scheme, no
employer and employee would have
forethought that appointments made after
01.04.2003 would not be eligible for the
Old Pension Scheme. In fact the petitioner
had been enrolled for Teacher Provident
Fund and she was given TPF No. 339415.
Therefore, her request was accepted and
she had been enrolled under the old pension
scheme.

12. That apart, the learned counsel for
the
petitioner
produced
office
memorandum issued by the Government of
India on 03.03.2023, considering the
representation submitted from Government
servants appointed on or after 01.10.2004
requesting for extending the benefit of the
pension
scheme
under
Central
Civil
Services (Pension) Rules, 1972 (now 2021)
on the ground that their appointment was
made
against
the
post/vacancies
advertised/notified for recruitment prior to
notification for National Pension System
referring to court judgments on various
Hon'ble High Courts and Hon'ble Central
Administrative Tribunals decided that in all
cases where the Central Government civil
employee has been appointed against a post
or vacancy which was advertised/notified
for recruitment/ appointment prior to the
date of notification for national pension
scheme i.e. 22.12.2003 and is covered
under the National Pension System on
934 INDIAN LAW REPORTS ALLAHABAD SERIES
joining service on or after 01.01.2004, may be
given a one-time option to be covered under the
CCS (Pension) Rules, 1972 (now 2021). The
said option may be exercised by the
Government servants latest by 31.08.2023. In
fact the Government of India also called for list
of pending cases of employees seeking
convertion from contributory pension scheme
to old pension scheme by the letter dated
19.02.2023, in which following details were
called for:

(i) The details of employees in your
department in Secretariat and under your
control viz., Heads of Department, Public
Sector Undertakings, Statutory Boards and
Government Societies for whom orders have
been issued for conversion from Contributory
Pension Scheme to Old Pension Scheme with
authority (G.O. No. and Date along with a copy
along with case history from 2003 to till date.

(ii) The details of employees seeking Old
Pension Scheme from Contributory Pension
Scheme either under the ambit of Government
Orders/Clarifications/Court
Orders
and
pending court cases/pending cases with specific
case
history
may
be
forwarded
for
consolidation and taking a final decision in the
matter after due examination.

13.
Therefore,
the
retrospective
amendment/change affecting the vested or
accrued
rights
of
employees,
adversely
affecting their pension, was declared to be
invalid as held by the Hon'ble Supreme Court
of India in the case of Chairman, Railway
Board v. C.R. Rangadhamaiah, (1997) 6 SCC
623."

21. It would be an added buttress to
premise the petitioner's right that her right to be
governed by the old pension scheme, would be
traceable to the date of commencement of the
recruitment process. There appears to be
consensus of opinion on the issue, amongst
various High Courts, including the Supreme
Court's approval to the principle that rights
crystallize about the governing pension regime,
like other rights, with reference to the date on
which the process of recruitment commenced.

22. This is quite apart from the principle
on which this Court finds for the petitioner that
the petitioner's right stands crystallized on the
date the letter of allocation was issued, and for
the most, the day when the District Inspector of
Schools declined to enforce the allocation and
secure an appointment for her, which was well
before the cut-off date.

23. In the result, this petition succeeds and
is allowed. Let a mandamus issue to each of the
respondents, commanding them to treat the
petitioner governed by the General Provident
Fund-cum-Pension Scheme, that was in
vogue
prior
to
enforcement
of
the
contributory pension scheme in terms of
Government Order No. सा-3-379/िस-2005301(9)-2003 dated 28th March, 2005 and to
ensure deduction/ payments of contribution
towards retiral benefits for the petitioner
accordingly.

24. Costs easy.
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(2023) 10 ILRA 934
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.09.2023

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ -C No. 8389 of 2023
along with other connected cases

HMS College of Pharmacy, Bulandsahar &
Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Ajay
Pratap
Singh