# Ravi Raj & Ors v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1225
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-07
- **Case number:** WRIT-A No. 26584 of 2011
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ravi-raj-ors-v-state-of-u-p-ors-45649
- **Pages:** 15

## Headnote

A. Service Law- Pension - U.P. Retirement
Benefits Rules, 1961: Rule 2(3); General
Provident
Fund
(U.P.)
Rules,
1985
-
Petitioners who were initially selected in
2001, came to be appointed only in October
2006, on account of ensuing litigation, would
not be entitled to the benefits of Old Pension
Scheme which held the field till 01 April 2005.

B. The orders of appointment clearly provided
that they would come into effect from the
date
when
the
petitioners
join
their
respective posts. Once the petitioners had
accepted this stipulation in the appointment order
without demur or protest, it was not open for them
to thereafter and belatedly seek to claim benefits of
the Old Pension Scheme. (Para 11, 28)

C. A person who was not in service on a
particular day, cannot be treated in service
and seniority cannot be accorded to him. -
Petitioners could not claim any retrospective
conferral of benefits commencing from a period
even before they had entered service. The same
analogy is applied to their claim for coverage under
the Old Pension Scheme. (Para 14, 16)

D. The expression "entering services or
posts..." cannot be understood as referring to
or hinging upon something inchoate or
nebulous such as, selection or empanelment
of an incumbent to government service. The
Rule 2(3) clearly refers to entry into service as being
determinative factor. The mere fact that the process
of recruitment was initiated prior thereto can be of
no assistance to the cause of being governed by the
Old Pension Scheme. (Para 21, 27)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

_Characters 0–39,837 of 50,855. This is a partial read: ask again with offset=39837 for what follows._

2 All. Ravi Raj & Ors. Vs. State of U.P. & Ors.
1225
compassionate grounds, we are unable to
sustain the approach of the Division Bench
of the Kerala High Court and the
judgment of the Division Bench is,
therefore, set aside."(Emphasis by Court)

14. This Court is, thus, of opinion
that a posthumous child does not qualify
for a minor and a member of the deceased
Government servant's family under the
Rules of 1974, entitling him to be
considered
for
compassionate
appointment, once he attains majority.

15. In the result, this petition fails
and is dismissed. There shall be no order
as to costs.
----------
(2020)02ILR A1225

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.02.2020

BEFORE

THE HON'BLE YASHWANT VARMA, J.

WRIT-A No. 26584 of 2011

Ravi Raj & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare, Sri Siddharth Khare, Sri
A.K. Rai, Sri Sanjeev Kumar

Counsel for the Respondents:
C.S.C.

A. Service Law- Pension - U.P. Retirement
Benefits Rules, 1961: Rule 2(3); General
Provident
Fund
(U.P.)
Rules,
1985
-
Petitioners who were initially selected in
2001, came to be appointed only in October
2006, on account of ensuing litigation, would
not be entitled to the benefits of Old Pension
Scheme which held the field till 01 April 2005.

B. The orders of appointment clearly provided
that they would come into effect from the
date
when
the
petitioners
join
their
respective posts. Once the petitioners had
accepted this stipulation in the appointment order
without demur or protest, it was not open for them
to thereafter and belatedly seek to claim benefits of
the Old Pension Scheme. (Para 11, 28)

C. A person who was not in service on a
particular day, cannot be treated in service
and seniority cannot be accorded to him. -
Petitioners could not claim any retrospective
conferral of benefits commencing from a period
even before they had entered service. The same
analogy is applied to their claim for coverage under
the Old Pension Scheme. (Para 14, 16)

D. The expression "entering services or
posts..." cannot be understood as referring to
or hinging upon something inchoate or
nebulous such as, selection or empanelment
of an incumbent to government service. The
Rule 2(3) clearly refers to entry into service as being
determinative factor. The mere fact that the process
of recruitment was initiated prior thereto can be of
no assistance to the cause of being governed by the
Old Pension Scheme. (Para 21, 27)

Writ petition dismissed. (E-4)

Precedent followed:

1. Sevandra Singh and others Vs. State of U.P.
and others, Civil Misc. Writ Petition No. 21069
of 2003 (Para 4, 14)

2. Satyesh Kumar Mishra and others Vs. State
of U.P. and others, 2016 (6) ADJ 808 {LB}
(Para 13, 17, 18, 19, 20, 22, 25, 26)

3. Ram Nakul Vs. State of U.P. and others, Writ
A No. 15392 of 2012 decided on 03.09.2019
(Para 12, 13, 18, 19, 21, 25, 26)

4. Bharat Yadav Vs. State of U.P. and 3 others,
Writ A No. 16838 of 2019 decided on
23.10.2019 (Para 18, 19, 21, 25, 26)
1226 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Union of India Through Secretary Ministry of
Defence and others Vs. Roop Chandra and
others, Writ A No. 58724 of 2011 decided on
11.12.2019 (Para 11, 28)

6. Rajiv Singh and others Vs. State of U.P. and
others, Writ A No. 18297 of 2010 decided on
06.04.2010 (Para 14)

Precedent distinguished:

1. Mahesh Narayan and others Vs. State of U.P.
and others, Writ A No. 55606 of 2008 decided
on 19.12.2019 (Para 9, 19, 20, 21, 22, 25, 26)

2. Firangi Prasad Vs. State of U.P. and others,
(2011) 2 UPLBEC 987 (Para 20, 22, 23, 25)

3. Naveen Kumar Jha Vs. Union of India and
others, 2012 SCC Online Delhi 5606 (Para 24)

Precedent mentioned:

1. Ashutosh Joshi and others Vs. State of
Uttarakhand and others, Writ Petition (S/S) No.
1170 of 2010 decided on 26.06.2014 (Para 20)

2. Inspector Rajendra Singh and others Vs.
Union of India and others, W.P. (C) 2810/2016
decided on 27.03.2017 (Para 20)

(Delivered by Hon'ble Yashwant Varma, J.)

1. Heard learned counsel for the
petitioners and Sri Vishal Tandon learned
Standing Counsel for the State respondents.

2. The petition has been preferred
principally seeking the following reliefs: -

"a writ order or direction in the
nature of certiorari quashing the notice dated
20.04.11 issued by the Additional District
Magistrate (Finance & Revenue) Jyotiba
Phulenagar (Annexure 14 to the writ petition).

A writ order or direction of a
suitable nature restraining any action on the
basis of the impugned notice.

A writ, order or direction of a
suitable nature commanding the respondents to
treat the petitioners as covered by the Old
Pension Scheme applicable prior to 01.04.05
and to extend all benefit thereof to the
petitioners."

3. The principal question which
falls for determination is whether the
petitioners who were initially selected in
2001
and
on
account
of
ensuing
litigation came to be appointed only in
October 2006 would be entitled to the
benefits of the Old Pension Scheme
which held the field till 01 April 2005.
Undisputedly on 01 April 2005 a New
Pension Scheme was promulgated and
according to the petitioners since the
provisions made in the erstwhile Scheme
were more beneficial, they would be
entitled to claim coverage under that
Scheme notwithstanding the fact that
they ultimately came to be appointed
only in 2006. For the purposes of
answering the question that is raised, the
following skeletal facts may be noticed.

4. In August 2001 the Government
of U.P. initiated a selection process for
appointment of persons on Group-C
posts in different Departments of the
State.
The
petitioners
applied
and
participated in that recruitment exercise.
They are also stated to have cleared the
typing test and declared as qualified. On
24
December
2001
the
District
Magistrate cancelled the select list and a
decision was taken to hold fresh tests.
Aggrieved by that decision various writ
petitions came to be preferred before this
Court including one filed by Sevandra
Singh And Others v. State of U.P. And
Others1. The said petition along with
connected matters ultimately came to be
2 All. Ravi Raj & Ors. Vs. State of U.P. & Ors.
1227
decided on 04 September 2003 in the
following terms.

"For the aforesaid reason, the
writ petition are allowed, the order dated
24.12.2001
of
District
Magistrate
concealing the selections and for holding a
fresh type test can not be sustained and is
set aside. The respondents are directed to
give
appointments
to
the
selected
candidates, from but of the select list in
pursuance of type test held on 23.11.2001
and 7.12.2001. The test held on 2.5.2003 is
declared to be illegal and quashed. All the
selectees as aforesaid including petitioners
shall be given appointments within a
period of one month. There shall be no
order as to costs."

5. As is evident from the operative
directions, the order of the District
Magistrate was set aside and a further
mandamus
issued
commanding
the
respondents to give appointments to
selected candidates who formed part of the
lists which had been prepared pursuant to
the tests held on 03 November 2001 and
07 December 2001. The petitioners
admittedly were included in those lists.
The judgment of the learned Judge was
subjected to an appeal at the behest of
some of the candidates who had qualified
the subsequent test that had been held on
02 May 2003. One of those Special
Appeals was numbered as Special Appeal
No. 967 of 2003. On 29 September 2003
while entertaining the appeal, the Division
Bench provided that the judgment of the
learned Judge impugned therein would
remain stayed for a period of three months.
When the Appeal was taken up again on
27 January 2004 the Division Bench
extended the original interim order for a
period of one month with liberty to parties
to
apply
for
extension,
vacation,
modification and/or variation of that order.
The aforesaid Appeal remained pending
on the board of this Court but the interim
order, which was to operate only for a
period of 1 month from 27 January 2004
was not extended thereafter.

6. On 25 May 2016 the Appeal and
other connected matters were again taken
up for consideration by a Division Bench
when the following order came to be
passed: -

"Three appeals are connected
with each other, namely, the present
appeal, Special Appeal No. 1641 of 2009
and Special Appeal (Def.) No. 983 of 2004
that has been printed in today's cause list
of our determination. The other two
appeals have not been printed in the cause
list, namely, Special Appeal No. 967 of
2003 and Special Appeal No. 1641 of
2009. It is therefore, appropriate that all
the three appeals are shown in the cause
list correctly alongwith their complete
particulars as well as the names of the
respective counsel appearing in all the
three appeals.

It is also relevant to record that
in this appeal no. 967 of 2005, an interim
order was passed on 29th September, 2003
that is recorded on the memo of the appeal
and the order-sheet indicates the extension
of the interim order upto 27th January,
2004. The order-sheet thereafter does not
indicate any order except the matter being
listed and being passed over on one
ground or the other. Special appeal no. 967
of 2003 was after five years listed in 2015
and has now been placed before us without
its particulars having been mentioned in
cause list alongwith the other appeal.

In
this
background,
learned
Standing Counsel who is present for the
State in Special Appeal (Def.) No. 983 of
1228 INDIAN LAW REPORTS ALLAHABAD SERIES
2004 and Special Appeal No. 1641 of
2009
shall
collect
all
appropriate
information from the District Magistrate,
Jyotiba Phule Nagar about the status of the
employment of the candidates in whose
favour the learned Single Judge has
delivered the judgment dated 4.9.2003 and
file an appropriate affidavit in that regard
immediately upon reopening of the High
Court in the 1st week of July, 2016.

List this case on 4th July, 2016
with all the connected appeals alongwith
their correct particulars as well as names
of the respective counsel appearing in all
the three appeals "

7. The Appeal ultimately came to be
dismissed for want of prosecution on 30
January 2017. It would not be out of place to
note here that the State had also preferred a
Special Appeal2 against the judgment of 04
September 2003 albeit with delay. The delay in
the preferment of that appeal was never
condoned and the Special Appeal remained
defective and pending on the board of the
Court.

8. In the meanwhile and since the
original judgment was not being implemented,
the petitioners here instituted proceedings in
contempt. It was upon notices being issued on
the contempt petition that they were ultimately
granted letters of appointment. By the time that
the letters of appointment came to be issued in
favour of the petitioners in October 2006, the
New Pension Scheme had come into force
with effect from 01 April 2005. It is in that
context that when the petitioners were required
to exercise their options and complete
documentation to be governed by the New
Pension Scheme that the instant writ petition
came to be preferred.

9. Learned counsel for the petitioners has
contended that the petitioners had been duly
selected in 2001 itself. It was submitted that the
final judgment rendered inter partes on 4
September 2003 was never implemented by
the State causing grave detriment to the
petitioners. It was submitted that the interim
orders which operated on the Special Appeal
preferred by certain subsequently selected
individuals also did not operate after February
2004 and consequently it must be held that
there was no impediment operating upon the
State from implementing the judgment of the
learned Judge rendered on 04 September 2003.
It was submitted that the petitioners cannot be
placed in a disadvantageous position on
account of the inaction and inexplicable delay
on the part of the State to implement the
judgment rendered inter partes. The sheet
anchor of the submissions addressed rests upon
a judgment rendered by a learned Judge of the
Court in the matter of Mahesh Narayan And
Others v. State of U.P. And Others3.
According to the learned counsel Mahesh
Narayan is a binding authority on the
proposition that where the delay is caused by
the State, the selectees who have merely come
to be appointed post 01 April 2005 cannot be
denied the benefits of the Old Pension Scheme.

10. Learned counsel then refers to
the pleadings taken in paragraph-25 and 26
of the writ petition to submit that certain
persons who had scored marks lower than
the petitioners were in fact appointed prior
to the New Pension Scheme coming into
force and thus the petitioners have been
clearly discriminated against. It was
contended that the disclosures made in
paragraph-25 and 26 of the writ petition
have not been denied by the State
respondents. The Court however notes that
the petitioners never challenged the
appointment of candidates who are alluded
to in the writ petition at any stage. It is
also not disputed that they came to be
appointed prior to 1 April 2005. In that
2 All. Ravi Raj & Ors. Vs. State of U.P. & Ors.
1229
view of the matter, the Court finds no
justification to either countenance or deal
with this issue.

11. Sri Tandon learned Standing
Counsel on the other hand submits that the
orders of appointment clearly provided
that they would come into effect from the
date when the petitioners join their
respective posts. He submits that once the
petitioners had accepted this stipulation in
the appointment order without demur or
protest, it was not open for them to
thereafter and belatedly seek to claim
benefits of the Old Pension Scheme. Sri
Tandon in this connection places reliance
upon the judgment rendered by a Division
Bench of the Court in Union of India
Through Secretary Ministry of Defence
and Others v. Roop Chandra And
Others4 where dealing with an identical
controversy the Division Bench observed
thus: -

"5. Once applicant-respondent
have not challenged their appointment
from particular date, applicant-respondent
cannot subsequently claim that their
appointment be treated prior to date of
appointment as same will enable them
benefit of old pension scheme.

...

7. In our view appointment
begins with the issue of appointment
letters. terms of appointment are governed
by appointment letter. Once appointment
letter so issued to applicant respondent
was
accepted
without
any
protest,
applicant respondents could not have
turned around and claim appointment prior
to the date mentioned in appointment
letters. Tribunal erred in granting the relief
prayed for. Both the writ petitions are
consequently
allowed.
Impugned
judgements and orders dated 20.5.2011
and 27.4.2012, passed by Tribunal, are set
aside."

12. Sri Tandon learned Standing
Counsel then drew the attention of the
Court to yet another judgment rendered in
Ram Nakul v. State of U.P. And
Others5 wherein dealing with a similar
question, a learned Judge held as follows: -

"6.
I
have
considered
the
submissions made on behalf of the rival
parties and perused the record. It would be
relevant to consider the object of the New
Pension Scheme which is specificily
mentioned
in
the
notification
dated
28.03.2015
issued
by
the
State
Government which states as follows;

"State
Government
on
28.03.2005 has disclosed the object of new
pension scheme as follows:-

The
State
Government,
in
consideration of its long-term fiscal
interest and following broadly the pattern
adopted by the Central Government has
approved
the
following proposal
of
introducing a new defined contribution
pension system in place of the existing
defined benefit pension scheme for new
entrances to the service of the State
Government and of all State controlled
autonomous institutions and State- aided
private educational institutions where the
existing pension scheme is patterned on
the scheme or Government Employees and
is funded by the consolidated fund of the
State Government.

(i) From 1st of April, 2005, the
new defined contribution pension system
would mandatorily apply to all new
recruits to the service of the State
Government and of all State controlled
autonomous
State
aided
private
educational institutions referred to above.
However, employees covered by the
1230 INDIAN LAW REPORTS ALLAHABAD SERIES
existing pension scheme whose service
would be of less than ten years on 1st
April, 2005, may also voluntarily opt for
the new pension system in place of the
existing pension scheme.

(ii) Under the new defined
contribution pension system, the employee
would make a monthly contributor equal
to 10 per cent of the salary and dearness
allowance.
A
matching
employer's
contribution would be made by the State
Government
or
by
the
concerned
autonomous
institution/
private
educational institution. However, the State
Government would provide grant to the
concern autonomous institution/ private
educational
institution
for
making
employer/s
contribution
until
the
institution is in a position to make the
contribution itself. The contribution and
investment returns would be deposited in
an account to be known as pension tier-I
account. No withdrawal would be allowed
from this account during the service
period. The existing provisions of defined
benefit pension and GPF would not be
available to the new recruits covered by
the new defined contribution pension
system.

(iii) Since new recruits would
not be able to subscribe to GPF, they may
also have a voluntary tier-II account, in
addition to the pension tier-I account.
However, employer would make no
contribution to tier-II account. The assets
in
tier-II
account;
would
be
invested/managed through exactly the
same procedure of for pensioner-I account.
However, the employee would be free to
withdraw part or all the " second tier" of
his money anytime.

(iv) Employee can normally
exist tier-I of the pension system at the
time of retirement. At exist the employee
would be mandatorily required to invest 40
per cent of pension wealth to purchase an
annuity from a recognized Insurance
company so as to provide for pension for
the lifetimes of the employee and his
dependent parent and his spouse o at the
time of retirement. The remaining pension
wealth would, however, be received by the
employee as a lump-sum which he would
be free to utilize in any manner . In case of
employee existing the pension tier-I before
retirement, the mandatory annuitisation
would be 80 per cent of the pension
wealth.

(v) There would be several
pension fund manners who would offer
mainly three categories of investment
options. The pension fund manners and the
record keeper would jointly give our easily
understood
information
about
past
performance to that the employee is able
to
make
informed
choices
of
the
investment options.

2.
The
effective
date
for
operationalisation of the new pension
system shall be 1st of April, 2005."

7. From the above, it is clear that
the New Pension Scheme was enforced
w.e.f.
01.04.2005
and
it
would
mandatorily made applicable to all the new
recruits who join the services after
01.04.2005 with only one exception that
the candidates whose service would be less
than 10 years on 01.04.2005 an option had
been given to them for the New Pension
Scheme in place of the existing Pension
Scheme.

...

9. In the present matter it is
undisputed that petitioner joined the
service on 19.04.2005, after the New
Pension Scheme came into force i.e. on
01.04.2005. For the purpose of granting
any benefit to the employee of the State
the relevant date is only the date of actual
joining as at the time of joining of service
2 All. Ravi Raj & Ors. Vs. State of U.P. & Ors.
1231
the selected candidate has accepted the
terms and conditions of the appointment
letter. Learned counsel for the petitioner is
not able to substantiate his argument from
the
record
that
the
petitioner
was
intentionally denied by the respondents to
join service before 01.04.2005."

13. It becomes relevant to note that
the decision in Ram Nakul principally
follows the judgment rendered by a
learned Judge of the Court sitting at
Lucknow in Satyesh Kumar Mishra And
Others v. State of U.P. And Others6
where while dealing with the question of
applicability of the Old and New Pension
Schemes and upon noticing the provisions
made in the U.P. Retirement Benefits
Rules, 19617 in that respect it was held as
follows: -

"22. Pursuant to the aforesaid
Notification dated 28.3.2005, amendment
has been introduced in U.P. Retirement
Benefit Rules 1961 known as "U.P.
Retirement Benefits (Amendment) Rules,
2005", by the Governor in exercise of
power conferred by the proviso to Article
309 of Constitution of India. The said
Rules have been made applicable w.e.f.
1.4.2005, and it has been clarified therein
that Rules shall not apply to employees
whether temporary or permanent entering
into services on or after 1st April, 2005 in
relation to the affairs of State pensionable
establishment,. Not only this, General
Provident Fund (U.P.) Rules 1985 has also
been amended by the Governor, in
exercise of power conferred by the proviso
to Article 309 of the Constitution of India,
by means of General Provident Fund
(U.P.) (Amendment) Rules, 2005, and
these
Rules
have
also
been
made
applicable w.e.f. 1.4.2005. While dealing
with conditions of eligibility in Rule-4, a
proviso has been appended mentioning
therein
that
no
government
servant
entering into on or after 1st April, 2005
shall subscribe to the fund from the date of
joining of service.

23. Once a policy decision has
been taken to enforce new pension
scheme, contribution pension system w.e.f.
1st April, 2005 with no exception
accorded to new entrants to service and the
only exception that has been carved out is
in reference of candidates whose service
would be of less than ten years on 1st of
April, 2005, then option has been given to
them to voluntarily opt for the new
pension system in place of the existing
pension scheme. Thus, it is imminently
clear that new entrants in service have
necessarily opt for new pension scheme,
and have no escape route.

24. Once appointment of the
petitioners have been made on 16.4.2015,
13.5.2005, 4.5.2005, 16.7.2005, 14.8.2006,
16.4.2005, respectively, then, admittedly
entry in service has been made after
enforcement of new pension scheme. In
this view of the matter, petitioners cannot
insist that they should be governed under
old pension scheme on account of the fact
that when the advertisement has been
issued, old pension scheme has been in
existence.

25.
"Recruitment",
"Advertisement",
"Selection"
and
"Appointment" are different concepts
under
the
service
jurisprudence.
"Recruitment" is the process of generating
a pool of capable people to apply for
employment in organization. Selection
forms integral part of recruitment process,
wherein from amongst eligible candidates,
choice is made of person or persons
capable to do the job as per the
requirement. The process of selection
begins with the issuance of advertisement
1232 INDIAN LAW REPORTS ALLAHABAD SERIES
and ends with the preparation of select list
for appointment. "Appointment" is made,
after selection process is over, issuance of
letter in favour of selected candidates, is
an offer to selected candidate to accept the
office or position to which he has been
selected. On acceptance of the terms and
conditions of appointment, the selected
candidates on joining has to be accepted as
appointed, and he /she would be a new
entrant and based on recruitment process,
petitioner can not claim that she be
brought within the scope and ambit of old
pension rules in place of new pension
rules. There is no dispute to the fact that
process of selection was never altered and
the entire selection was undertaken in
accordance with the criterion which was
laid down at the time of recruitment
process.
Therefore,
assertion
of
the
petitioner that the applicability of New
Pension Scheme would amount to change
in the terms and conditions of recruitment
is untenable.

26. The Apex Court, in the case
of Sudhir Kumar Kansal Vs. Allahabad
Bank : 2011 (2) ESC 243 held, in the
matter of grant of pension, either under the
old rule or the new rule, proceeded to
mention that in society governed by rule of
law sympathies cannot override the Rules
and Regulations, and in the said case view
has been taken accordingly that appellant
was not eligible to claim any benefit under
Old Pension Scheme.

27. Inevitable conclusion thus
is, that once New Pension Scheme has
been introduced and it has been
provided that such incumbents entering
into service on or after 1st April, 2005
would be governed under the New
Scheme,
then,
said
category
of
incumbents, as matter of right, cannot
claim legally to be governed under the
old scheme, and their claim of pension
will fall within the ambit of Rules as
has
been
introduced
w.e.f.
01.04.2005."

14. Sri Tandon then submitted that in
2010 itself the petitioners had raised a
contention that their seniority must be counted
not from the date of their actual appointment
but from the time when they were originally
selected or at least when their claim came to be
upheld in Sevandra Singh. Sri Tandon draws
the attention of the Court to the order passed
by a learned Judge on Rajiv Singh And
Others v. State of U.P. And Others8 when
that claim came to be rejected in the following
terms: -

"Heard learned counsel for the
petitioners and learned Standing Counsel.

The relief sought in the present writ
petition is that the judgment which was passed
in 2003 in favour of the petitioners in Writ
Petition No.18789 of 2003 may be complied
with in true spirit. Petitioners were considered
and appointed in pursuance of the judgment
passed by this Court in 2006. The claim of the
petitioners is that as the judgment in favour of
the petitioners was of 2003, therefore, they are
entitled to get the seniority and other financial
benefits from that date in spite of the fact that
they have been given appointment in 2006.

In my opinion, it is not
permissible in law. A persons who was
not in service on a particular day,
cannot be treated in service and
seniority cannot be accorded to him."

15. A Division Bench affirming that
decision in Special Appeal observed thus:-

"We have gone through the order
impugned and found that the court clearly
held that the appointments were given in
2006. Therefore, a person who was not in
service on a particular date, cannot be
2 All. Ravi Raj & Ors. Vs. State of U.P. & Ors.
1233
treated in service and seniority cannot be
accorded to him. The petitioner has taken a
plea
that
two
persons
were
given
appointments pursuant to the direction of
the writ court in 2003 but the petitioner
was excluded.

.......

In the instant case appointment
was given only in 2006. If there is any
delay on the part of the State between
2003 and 2006, it was open to proceed
before the court of contempt. Why the
petitioner has invoked the jurisdiction of
this Court a second time for giving an
interpretation with regard to seniority by
filing the writ petition is not known. The
learned Single Judge has rightly held that
since the vacancy was not available earlier
to 2006, how the seniority can be given
prior thereto. Hence we do not find any
infirmity in the order itself. "

16. Sri Tandon learned Standing
Counsel seeks to draw sustenance from the
findings as returned in that round of
litigation to contend that it was duly noted
that the petitioners here could not claim
any retrospective conferral of benefits
commencing from a period even before
they had entered service. In his submission
the same analogy must also apply when it
comes to their claim for coverage under
the Old Pension Scheme.

17. Having noticed the rival
submissions, the Court firstly takes note of
the judgment in Satyesh Kumar Mishra
where the learned Judge noticed the
seminal amendments that came to be
introduced pursuant to the adoption of the
New Pension Scheme. The learned Judge
in Satyesh Kumar Mishra taking note of
the underlying policy infusing the New
Pension Scheme and as embodied in the
Government Order of 28 March 2005,
took note of significant provisions made
by way of amendment in the 1961 Rules as
well as the General Provident Fund (U.P.)
Rules 1985. It was noted that the 1961
Rules as amended in unequivocal terms
provided that they would not apply to
employees entering service on or after 01
April 2005 irrespective of whether their
engagement in relation to the affairs of the
State was on a pensionable or nonpensionable establishment. The learned
Judge in light of those amendments
proceeded to observe that once a policy
decision had been taken to enforce a New
Pension Scheme, entrants into service after
the dates specified thereunder could not
claim benefits of the erstwhile Scheme. It
was noted that the statutory regime as
introduced did not envisage an option
being exercised by entrants. The learned
Judge then also took note of the meaning
liable to be ascribed to the expressions
"Recruitment",
"Advertisement",
Selection" and "Appointment" to hold that
once incumbents had accepted the terms
and
conditions
specified
in
the
appointment, they were bound by the same
and could not seek to alter those terms at a
subsequent stage.

18. In Bharat Yadav v. State of
U.P. And 3 Others9 a learned Judge of
the Court again noticing the significant
provisions made in Rule 2(3) of the 1961
Rules, the validity of which as was noted
in that decision as having been upheld
arrived at the same conclusion. The
learned Judge while dealing with an
identical question held: -

"So far as payment of pension
under
the
old
pension
scheme
is
concerned, the same is regulated by the
provisions
of
Rules
of
1961.
An
amendment in the Rules of 1961 was
1234 INDIAN LAW REPORTS ALLAHABAD SERIES
introduced in the year 2005 as per which
anyone who joins services of the State
after 1.4.2005 would not be entitled to any
pension under the Rules of 1961. Rule 2(3)
of the Rules of 1961, as amended, reads as
under: -

"2(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."

The validity of the aforesaid rules
were questioned in series of litigations
instituted before this Court and a Division
Bench of this Court in State of U.P. and others
vs. Dukh Haran Singh reported in 2010 (2)
AWC1882 (All) has been pleased to affirm the
validity of the amendment incorporated in the
Rules of 1961. The matter has travelled upto
the Apex court and the view taken by the
Division Bench of this Court has been
affirmed. In that view of the matter, anyone
who joins in the service of the State of U.P.
after 1.4.2005 would not be entitled to benefit
of old pension scheme under the Rules of
1961. Since the petitioner's appointment is
after the cut-off date i.e. 1.4.2005 and he never
questioned his appointment offered on
27.12.2005, it would not be open for the
petitioner to contend now that the benefit of
services in the employment of State ought to
be granted from a date prior to 1.4.2005. The
contention in that regard, based upon the
observations of the Division Bench judgment
of the Uttrakhand High Court, is not liable to
be accepted in view of the fact that Division
Bench of this Court has already taken a
different view and such view has otherwise
been affirmed by the Apex Court. This Court,
moreover, finds that the Rules of 1961
consequent upon its amendment, referred to
above, did not fall for consideration before the
Uttarkhand High Court. In view of the fact that
distinct set of rules exist in respect of
employees of the State of Uttar Pradesh, the
judgment of the Uttrakhand High court would
not be of any avail to petitioner's cause. The
plea that the pension Rules as it stood when the
vacancy was advertised in 2001 be made
applicable upon the petitioner, therefore, is
rejected.

Bharat Yadav thus and as is manifest
treads the same line as the decisions rendered
in Satyesh Kumar Mishra and Ram Nakul.

19. This Court is of the considered
view that the key to answer the question
posed lies in the language employed by
Section 2(3) of the 1961 Rules. The
decisions noticed above in light of the
plain language employed in Rule 2(3) hold
that it is only the date on which the
incumbent joins service which is relevant
for
the
purposes
of
adjudging
his
eligibility to the benefits of the Old or the
New Pension Scheme. They also lay stress
on the issue of joining and hold that it is
that facet which would be determinative. It
becomes pertinent to note that Satyesh
Kumar Mishra, Ram Nakul and Bharat
Yadav were all rendered prior to the
judgment in Mahesh Narayan. However
of these three decisions only Satyesh
Kumar Mishra has been noted with the
learned Judge observing that it was liable
to be viewed as having been rendered per
incuriam. Since Mahesh Narayan clearly
proceeds to lay down a principle, which
runs contrary to that enunciated in the
three previous decisions rendered on the
subject, it would be apposite to analyze
that decision in some detail.

20. In Mahesh Narayan the learned
Judge placing reliance upon a decision
rendered by a Division Bench of the Court
in Firangi Prasad v. State of U.P. And
Others10 has proceeded to hold that that
2 All. Ravi Raj & Ors. Vs. State of U.P. & Ors.
1235
where the delay is on account of inaction
on the part of the State, the selectees and
individuals cannot be deprived of rights
which may have accrued or crystallized. In
Mahesh Narayan the learned Judge held that
since the decision in Firangi Prasad had not
been noticed in Satyesh Kumar Mishra that
decision was liable to be viewed as per
incuriam. Mahesh Narayan again was a
decision which dealt with a selection process
which had been initiated and ultimately came
to be quagmired in litigation leading to delay in
issuance of appointment orders. The learned
Judge placing reliance on Firangi Prasad held
that in such a situation inaction on the part of
the State cannot deprive a candidate of his
legitimate right to claim benefits that may have
existed when selection commenced. It was
noted that although the selection process had
been initiated in 2001, it was conferred finality
only once legal challenges failed in 2005. It
also took note of the fact that the final select
list was ultimately published on 12 March
2006 where after appointment letters were
issued. In the aforesaid factual backdrop and
following Firangi Prasad the learned Judge
held that the candidates could not be denied
benefits on account of the delay that occurred
in the issuance of the appointment orders and
consequently they must be held to be eligible
to the benefits as provided under the Pension
Scheme which prevailed prior to 01 April
2005. While holding thus, the learned Judge
also placed reliance upon the decision rendered
by the Uttarakhand High Court in Ashutosh
Joshi And Others v. State of Uttarakhand
And others11 as well as the Delhi High Court
in Inspector Rajendra Singh And Others v.
Union of India and Others12. It would be
pertinent to extract the ultimate conclusions
recorded by the Learned Judge in Mahesh
Narain which read thus: -

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.

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
consistent view that respondents cannot by
their inaction deprive a candidate to his
legitimate right.

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
completion of recruitment process, but due
1236 INDIAN LAW REPORTS ALLAHABAD SERIES
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'.

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."

21. Having conferred thoughtful
consideration on the various decisions that
have come to be rendered on the subject,
the Court firstly notes that Mahesh
Narayan fails to notice Ram Nakul and
Bharat Yadav. Both these decisions
directly
dealt
with
the
issue
of
applicability of the Old and New Pension
Schemes depending upon the date of entry
into service of a particular candidate.
These decisions clearly bound the learned
Judge while proceeding to decide Mahesh
Narayan. However they do not appear to
have been brought to the attention of the
Court. Both Ram Nakul and Bharat
Yadav fundamentally rest and pivot on the
statutory amendments as introduced in
2005 in the 1961 Rules. As noted above,
Rule 2(3) introduces and constructs a
specific injunction in respect of its
applicability to employees "entering"
services or posts on or after April 01,
2005. Guided by the plain language as
used in that Rule, it is manifest that it does
not connect the applicability of the Rules
to either a selection process commenced or
pending or for that matter to any event
prior to actual entry into service. In the
considered
view
of
this
Court
the
expression "entering services..." cannot be
equated to the selection or empanelment of
an incumbent to government service. It is
manifest that the applicability of the 1961
Rules is made dependent upon an
incumbent actually being recognised as
having become a member of the service on
or before 1 April 2005.