# Sheeldhar Singh & Ors v. State of U.P. & Ors

- **Citation:** (2023) 12 ILRA 221
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-13
- **Case number:** Writ-A No. 83 of 2023
- **Bench:** Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sheeldhar-singh-ors-v-state-of-u-p-ors-49550
- **Pages:** 12

## Headnote

Service Law - U.P. Retirement Benefits
Rules, 1961 - Rule 2(3) - New Pension
Scheme, challenged by petitioners on
ground that previous scheme was more
beneficial - Claimed entitlement to old
scheme despite their appointments after
01.04.2005 and challenged GO dated
28.03.2005 - By GO, New Pension Scheme
made compulsory for new recruits who
joined service after 01.04.2005, except
candidates with less than 10 years' service
on that date, option had given to them to
opt for New Pension Scheme in place of
existing scheme
-
Petitioners
entered
service after enforcement of New Pension
Scheme and accepted applicable terms
and conditions of rules and regulations
including pension applicable to Assistant
Teacher
employed
in
Uttar
Pradesh,
cannot claim coverage under old scheme
merely on ground that new scheme is less
beneficial - Challenge to GO, raised after
18 years, is untenable as impugned
scheme is conscious decision with specific
object and suffers from no irrationality -
Once New Scheme was introduced and
provided incumbents entering in service
on or after 01.04.2005 would be governed
under said scheme then said category of
incumbents as matter of right cannot
claim coverage under old scheme, their
pension claims are governed by new rules.
(Para 17, 19, 23, 28)

Writ Petition dismissed. (E-13)
222 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

## Text

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12 All. Sheeldhar Singh & Ors. Vs. State of U.P. & Ors.
221
accused, the court must be cautious
that clear decision at this stage will bring
no irreparable harm to the accused. He
submits that the proceedings have been
carried out by the court below in a hasty
manner which is evident from the fact that
application for exemption filed by the
applicant has been rejected and nonbailable warrants have been issued against
him vide order dated 31.10.2023.

11. Learned A.G.A. has opposed
the application seeking stay of order dated
31.10.2023 and prays that he may be
granted four weeks' time to file counter
affidavit.

12. Prayer is allowed.

13. Learned A.G.A. is granted four
weeks' time to file counter affidavit.

14. Thereafter, two weeks' time is
granted to learned counsel for petitioner to
file rejoinder affidavit.

15. List this case on 04.01.2024.

16. On due consideration to the
submissions advanced by the parties,
perusal of the record so also the judgments
of Supreme Court, prima facie case for
interim relief appears to have been made
out.

17. Accordingly, till the next date of
listing, the non-bailable warrants issued
vide order dated 31.10.2023 are stayed.
----------
(2023) 12 ILRA 221
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.12.2023

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-A No. 83 of 2023
Connected with Writ-A No. 9336 of 2019 and
with other cases

Sheeldhar Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Vinod Kumar Singh, Vivek Srivastava

Counsel for the Respondents:
C.S.C., Ajay Kumar, Ran Vijay Singh

Service Law - U.P. Retirement Benefits
Rules, 1961 - Rule 2(3) - New Pension
Scheme, challenged by petitioners on
ground that previous scheme was more
beneficial - Claimed entitlement to old
scheme despite their appointments after
01.04.2005 and challenged GO dated
28.03.2005 - By GO, New Pension Scheme
made compulsory for new recruits who
joined service after 01.04.2005, except
candidates with less than 10 years' service
on that date, option had given to them to
opt for New Pension Scheme in place of
existing scheme
-
Petitioners
entered
service after enforcement of New Pension
Scheme and accepted applicable terms
and conditions of rules and regulations
including pension applicable to Assistant
Teacher
employed
in
Uttar
Pradesh,
cannot claim coverage under old scheme
merely on ground that new scheme is less
beneficial - Challenge to GO, raised after
18 years, is untenable as impugned
scheme is conscious decision with specific
object and suffers from no irrationality -
Once New Scheme was introduced and
provided incumbents entering in service
on or after 01.04.2005 would be governed
under said scheme then said category of
incumbents as matter of right cannot
claim coverage under old scheme, their
pension claims are governed by new rules.
(Para 17, 19, 23, 28)

Writ Petition dismissed. (E-13)
222 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

1. Deokinandan Prasad Vs The St. of Bihar &
ors.(1971) 2 SCC 330, (Paras 27, 33)

2. D. S. Nakara & ors.Vs U.O.I. (1983) 1 SCC
305, (Paras 28, 29)

3. St. of W.B. Vs Harish C. Banerjee &
ors.(2006)7 SCC 65, (Paras 4, 5)

4. Pepsu Road Transport Corporation, Patiala Vs
Mangal Singh & ors.(2011) 11 SCC 702, (Paras
34, 39, 49)

5. St. of Punjab Vs Amar Nath Goyal : (2005) 6
SCC 754, (Para 37)

6. St. of Bihar Vs Bihar Pensioners Samaj :
(2006) 5 SCC 65, (Para 17)

7. Sudhir Kumar Kansal Vs Allahabad Bank :
2011 (2) ESC 243

8. St. of U.P. & ors.Vs Dukh Haran Singh
reported in 2010 (2) AWC1882 (All)
(Delivered by Hon'ble Om Prakash Shukla, J.)

(1) Heard learned Counsel for the
parties and perused the material brought on
record.

(2) The issue involved in the abovecaptioned petitions concerns applicability
of New Pension Scheme to the Assistant
Teacher/Head Master employed in Primary
Schools in the State who admittedly joined
after 01.04.2005. The entire controversy
revolves
around
the
notification/
Government
Order
dated
28.03.2005,
which is under challenged in the abovecaptioned writ petitions, issued by the State
Government in relation to adoption of
Defined Contribution Pension Scheme on
the lines of the Government of India
notification as well as consequential orders
issued by the authorities of the State/Basic
Education Officer concern in furtherance of
the aforesaid Government Order dated
28.03.2005 for proper implementation of
the Defined Contribution Pension Scheme
in place of existing Old Pension Scheme.

(3) Apparently, by the Government
Order
dated
28.03.2005,
the
State
Government has mandated that w.e.f. 1st of
April, 2005, the new Defined Contribution
Pension Scheme (hereinafter referred to as
"New
Pension
Scheme")
would
compulsorily apply to all new recruits to
the service of the State Government and of
all State controlled autonomous and Stateaided
private
educational
institutions,
where the existing pension scheme is
patterned on the scheme for Government
employees
and
is
funded
by
the
consolidated fund of the State Government.

(4) In furtherance to the impugned
notification dated 28.03.2005, the State
Government has passed consequential
order dated 16.12.2022, directing that
without registration of the Permanent
Retirement
Account
Number
(PRAN)
under New Pension Scheme of the
Teachers after 01.04.2005, their salary may
not be drawn. Pursuant to this order dated
16.12.2022, the Finance Controller, Basic
Shiksha Parishad, Prayagraj, vide order
dated 22.12.2022, directed all the District
Basic Education Officers and Finance &
Accounts
Officer
for
ensuring
the
compliance of para-3 (v) of order dated
16.12.2022.
Thereafter,
respective
consequential orders, impugned in the
above-captioned writ petitions, have been
passed by the Basic Education Officer and
Finance and Accounts Officers of each
district of the State for implementation of
the impugned order dated 16.12.2022.

(5) Shri H.G.S. Parihar, learned
Senior Advocate assisted by Shri Durga
12 All. Sheeldhar Singh & Ors. Vs. State of U.P. & Ors.
223
Prasad Shukla representing the petitioners
has
drawn
attention
to
impugned
notification dated 28.03.2005 and has
argued that the New Pension Scheme has
been made effective in Uttar Pradesh from
01.04.2005 vide impugned notification
dated 28.03.2005, which is on the basis of a
defined contribution and has two tiers i.e.
Tier-I and Tier-II. According to the learned
Senior Counsel, the contribution to Tier-I is
mandatory for Government servant, who
joined Government service on or after
01.04.2005 i.e. the date on which State
Government adopted the New Pension
Scheme, whereas Tier-II is optional and is
at the discretion of the Government servant.
Learned Counsel submits that on adoption
of the New Pension Scheme by the State
Government, a corresponding amendment
was made in the U.P. Retirement Benefits
Rules, 1961 and General Provident Fund
Rules, 1985 w.e.f. 01.04.2005, however, in
the said amendment, nothing has been
stated about New Pension Scheme and only
stated that these Rules will not be
applicable to the employees who join
services on or after 01.04.2005.

(6) Elaborating his submission,
learned Senior Counsel representing the
petitioners has argued that under the New
Pension Scheme, both the employee and
employer make predetermined contribution
towards the scheme and the asset Managers
manages the investment on the basis of
their wisdom. Learned Counsel submits
that in India, the downward prediction of
interest rules has increased the liability of
the pension providers. The contributions
are invested in a predefined asset and
managed by the pension fund managers.
However, the Pension Fund Regulatory and
Development Authority established on
23.08.2003 has forbidden any minimum
guaranteed return under the New Pension
Scheme. According to learned Senior
Counsel, under the New Pension Scheme,
the current status of economy is uncertain
and requirement is there for converting the
scheme to an assured pension scheme,
however, the Government, through the
New Pension Scheme, is using public
money to help those who profit through
speculation in the share market at the cost
of vulnerable government employees. In
this backdrop, his submission is that the
fund managers in their independent wisdom
make some decision which results in less
accumulated
money
invested
and
consequently causes a very low pension to
the ex-employees who gave their entire life
to the employer and this hardship and
ambiguity cannot be permitted to be done
by the State, which is a welfare State. Thus,
the impugned notification dated 28.03.2005
being unreasonable, irrational and also as
being defeating the very purpose and
objective of the pension scheme is liable to
be quashed.

(7) The next submission of the
learned Senior Counsel for the petitioners
is that Old Pension Scheme is applicable to
the employees who joined and worked till
31.03.2005 as well as the MPs and MLAs,
hence providing other persons a fixed
income through pension and depriving the
petitioners of the fixed assured pension is
arbitrary and violative of Article 14 and 16
of the Constitution of India.

(8) Learned Senior Counsel inviting
our attention to para-3 (v) of the
Government Order dated 16.12.2022 has
argued that para-3 (v) of the Government
Order
dated
16.12.2022
imposes
a
condition that without registration in PRAN
of the Teachers appointed after 01.04.2005,
their salary may not be drawn. According
to the learned Senior Counsel, by the order
224 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 16.12.2022, the petitioners have been
compelled to fill up the New Pension
Scheme Form for registration in PRAN
despite their disagreement for the same. He
submits that New Pension Scheme is a
share market based scheme, which depends
upon up and down of market rates and does
not assures the beneficiaries as to what will
the proportion of pension to be paid after
retirement, hence the aforesaid para-v of
the order dated 16.12.2022 is liable to be
quashed.

(9) Per contra, learned Standing
Counsel representing the respondents has
vehemently
opposed
the
aforesaid
submissions advanced by the learned
Senior Counsel and has argued that the
State Government has introduced New
Pension Scheme w.e.f. 01.04.2005 vide
notification dated 28.03.2005 read with
07.04.2005. In pursuance thereof, the U.P.
Retirement Benefit Rules, 1961 and U.P.
General Provident Fund Rules, 1985 have
been amended w.e.f. 01.04.2005. The
employee covered under New Pension
Scheme have to compulsorily register their
PRAN so that the contribution of the
employee is to be deposited in the said
account and financial conditions of the
retired employee will be strengthened, but
even after lapse of long period, some of the
employees have not registered their PRAN.
According to the learned Standing Counsel,
admittedly, the petitioners have been
appointed after 01.04.2005 and therefore,
they all are covered with the New Pension
Scheme and the petitioners were well
aware about the existing rules with regard
to the pension at the time of entry in the
service. According to the learned Standing
Counsel, at the time of joining of the
service, these petitioners have not raised
any
objection.
In
any
case,
w.e.f
01.04.2005, there was no option available
to these petitioners, as it was a condition of
service that once the employee is to join a
State Government Service/Service of State
instrumentalities, they will be governed by
the existing service condition. He argued
that the petitioners have challenged the
impugned notification dated 28.03.2005
after eighteen years of its notification
without explaining the delay. He further
argued that the other orders which have
been challenged by the petitioners, are only
the consequential orders implementing the
notification dated 28.03.2005. Thus, the
above-captioned writ petitions is liable to
be dismissed.

(10) Learned Standing Counsel
representing the respondents submits that
the Government Order dated 16.12.2022
has been issued just to make it clear that the
employee
shall
register
their
PRAN
promptly so that data of the employee may
be uploaded on the DDO portal and it was
also provided in the Government Order
dated 16.12.2022 that only after registration
of PRAN, salary of the employee will be
disbursed. According to him, several writ
petitions have been filed by the Teachers
challenging the Government Order dated
16.12.2022 particularly Para-3 (v) of the
Government Order dated 16.12.2022, in
which
it
was
provided
that
those
employees, who have been appointed after
01.04.2005, they have to register their
PRAN and without registering PRAN,
salary of the employee shall not be paid.
Thereafter, the State Government, vide
Government Order dated 27.01.2023, has
modified
the
clause
3
(v)
of
the
Government Order dated 16.12.2022 and it
was made clear that although all efforts
shall be made to register PRAN of the
employee, however the salary of the
employee would not be withheld on this
ground. In this backdrop, it is the
12 All. Sheeldhar Singh & Ors. Vs. State of U.P. & Ors.
225
submission of the learned Standing Counsel
that the relief claimed by the petitioners in
the above-captioned writ petitions in regard
to clause 3 (v) of the Government Order
dated 16.12.2022 has become infructuous.

(11) Learned Standing Counsel has
further submitted that after the retirement,
employees have option to opt the options of
annuity (pensionary/maturity benefits) and
they can choose it as per their choice.
According to him, as per the New Pension
Scheme, 85% of the fund are being
invested in the Government's securities,
therefore, the effect of the share market is
negligible.
Moreso,
vide
Government
Order dated 13.02.2019, under the New
Pension Scheme, the facility to choose
pension fund manager and pattern of
investment has been provided to the
employees/subscriber. Therefore, the plea
of the petitioners in this regard has no
substance.

(12) Before this Court embarks to
decide these bunch of writ petitions, it
would be beneficial to consider the concept
of pension as has been devolved through
various precedents of the Hon'ble Apex
Court. The Constitution Bench of the Apex
Court in the matter of Deokinandan Prasad
v. The State of Bihar and others (1971) 2
SCC 330 has held that right to receive
pension was property under Article 31(1)
and Article 19(1)(f) of the Constitution of
India and it was held as under:

 "27. The last question to be
considered, is, whether the right to receive
pension by a government servant is property,
so as to attract Articles 19(1)(f) and 31(1) of
the Constitution. This question falls to be
decided in order to consider whether the writ
petition is maintainable under Article 32. To
this aspect, we have already adverted to
earlier and we now proceed to consider the
same.

33. Having due regard to the above
decisions, we are of the opinion that the right
of the petitioner to receive pension is
property under Article 31(1) and by a mere
executive order the State had no power to
withhold the same. Similarly, the said claim
is also property under Article 19(1)(f) and it
is not saved by sub-article (5) of Article 19.
Therefore, it follows that the order, dated
June 12, 1968, denying the petitioner right to
receive pension affects the fundamental right
of the petitioner under Articles 19(1)(f) and
31(1) of the Constitution, and as such the writ
petition
under
Article
32
is
maintainable............"

(13) Thereafter, the Constitutional
Bench of the Apex Court in the matter of D.
S. Nakara & others v. Union of India
(1983) 1 SCC 305 reiterating the law laid
down in Deokinandan Prasad (supra) held as
under: -

"28. Pensions to civil employees of
the Government and the defence personnel as
administered in India appear to be a
compensation for service rendered in the
past. However, as held in Douge v. Board of
Education [302 US 74 : 83 L Ed 57] a
pension is closely akin to wages in that it
consists of payment provided by an employer,
is paid in consideration of past service and
serves the purpose of helping the recipient
meet the expenses of living..........

29. ......Thus the pension payable
to a government employee is earned by
rendering long and efficient service and
therefore can be said to be a deferred portion
of
the
compensation
or
for
service
rendered............."

(14) Further, a three-judge Bench of
the Apex Court in the matter of State of
226 INDIAN LAW REPORTS ALLAHABAD SERIES
West Bengal v. Harish C. Banerjee and
others (2006)7 SCC 65, relying on
Deokinandan Prasad (supra) and D. S.
Nakara (supra) held that right to receive
pension is a valuable right of the
government servant which doesn't depend
upon the sweet will and pleasure of the
government and succinctly held as under : -

"4. Pension is not a bounty
payable on the sweet will and the pleasure
of the Government and to receive pension
is a valuable right of a government servant
is a well-settled legal proposition. The
question in the present case, however, is
not about the deprivation of the said right
by the Government by an executive order
but is about the constitutional validity of
Rule 10(1) providing for withholding of
pension or part thereof in certain cases.

5. Articles 19(1)(f) and 31(1)
have been repealed by the Constitution
(Forty-fourth Amendment) Act, 1978 w.e.f.
20-6-1979. The right to property is no
longer a fundamental right. It is now a
constitutional right, as provided in Article
300-A of the Constitution. Right to receive
pension was a fundamental right at the time
of framing of the Rules in 1971. The
question is whether a rule framed under
proviso to Article 309 of the Constitution
providing for withholding of the pension
would ipso facto be ultra vires, being
violative of Article 19(1)(f) as it stood in
1971 when the Rules were framed."

(15) The nature and object of pension
was summarized by the Hon'ble Supreme
Court in the case of Pepsu Road
Transport
Corporation,
Patiala
v.
Mangal Singh and others (2011) 11 SCC
702, wherein his Lordship held as under :-

"34. Pension is a retirement
benefit partaking of the character of regular
payment to a person in consideration of the
past services rendered by him. We hasten to
add that although pension is not a bounty but
is claimable as a matter of right, yet the right
is not absolute or unconditional. The person
claiming
pension
must
establish
his
entitlement to such pension in law............

39. Pension is a periodic payment
of an amount to the employee, after his
retirement from service by his employer till
his death. In some cases, it is also payable to
the dependants of the deceased employee as a
family pension. Pension is in a nature of right
which an employee has earned by rendering
long service to the employer. It is a deferred
payment of compensation for past service. It
is dependable on the condition of rendering
of service by the employee for a certain fixed
period of time with decent behaviour. Like
CPF, the object of providing pensionary
benefit under the Pension Scheme is to
provide social security to the employee and
his family after his retirement from the
service.
The
Government's/employer's
obligation under the Pension Scheme begins
only when the employee retires and it
continues till the death of the employee.

49. ........Pension is not a charity
or bounty nor is it a conditional payment
solely dependent on the sweet will of the
employer. It is earned for rendering a long
and satisfactory service. It is in the nature of
deferred payment for the past services. It is a
social security plan consistent with the socioeconomic requirements of the Constitution
when the employer is State within the
meaning of Article 12 of the Constitution
rendering social justice to a superannuated
government servant. It is a right attached to
the office and cannot be arbitrarily denied."

(16) This Court finds that the concept
and scope of pension had been changing
from
being
a
fundamental
right
to
constitutional right, however on each
12 All. Sheeldhar Singh & Ors. Vs. State of U.P. & Ors.
227
occasion, the Hon'ble Court have held that
the right to pension is not absolute or
unconditional. The person claiming pension
must establish his entitlement to such
pension as per the existing rules applicable
to an employee of the Central or the State
Government.

(17) Having regard to the submissions
advanced by the learned Counsel for the
parties and going through the record
available before this Court in the abovecaptioned writ petition, it is required to be
noted herein that undisputedly, on 01st
April 2005, a New Pension Scheme was
promulgated
vide
notification
dated
28.03.2005.
The
petitioners
have
challenged
the
notification
dated
28.03.2005 on various grounds, by saying
that since the provisions made in the
erstwhile Scheme were more beneficial and
the New Pension Scheme were not
beneficial for the petitioners, they would be
entitled to claim coverage under the Old
Scheme notwithstanding the fact that they
ultimately came to be appointed only after
01st April, 2005 and in this view of the
matter they challenged the Government
Order dated 28.03.2005. For the purposes
of answering the question that is raised
before this Court, the following skeletal
facts may be noticed.

(18) It would be relevant to first
consider the object of the New Pension
Scheme which is specifically mentioned in
the notification dated 28.03.2005 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 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
228 INDIAN LAW REPORTS ALLAHABAD SERIES
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 managers who would offer mainly three
categories of investment options. The pension
fund managers and the record keeper would
jointly give out easily understood information
about past performance so that the employee
is able to make informed choices of the
investment options.

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

(19) From the aforesaid Government
Order dated 28.03.2005, it is evident that
the New Pension Scheme was enforced
w.e.f. 01.04.2005 and it was mandatorily
made applicable to all the new recruits who
joined 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 to opt for the New Pension Scheme in
place of the existing Pension Scheme.

(20) 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.

(21) This Court deem it apt to
mention that 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
12 All. Sheeldhar Singh & Ors. Vs. State of U.P. & Ors.
229
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, wherein 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 to
necessarily opt for new pension scheme,
and have no escape route.

(22) In the instant case, it is
undisputed that petitioners joined the
service after the New Pension Scheme
came into force i.e. on 01.04.2005. This
Court notes that 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,
the selected candidate has accepted the
terms and conditions of the appointment
letter.

(23) Admittedly, entry in service of
the petitioners has been made after
enforcement of new pension scheme and all
the petitioners had accepted the terms and
conditions of the rules and regulations
including
pension
applicable
to
the
Assistant Teacher employed in the State of
U.P. In this view of the matter, petitioners
cannot insist that they should be governed
under old pension scheme for the reason
that New Pension Scheme is not beneficial
to them. Further, this court cannot be
oblivious to the fact that the petitioners
after about more than 18 years from the
date of issuance of the notification dated
28.03.2005,
have
challenged
the
Government
Order
dated
28.03.2005,
claiming that New Pension Scheme is not
beneficial to them and Old Pension Scheme
is beneficial to them, which, in my opinion,
is not correct because the New Pension
Scheme
enunciated
by
the
State
Government vide Government Order dated
28.03.2005 is a policy with a specific
object, as mentioned hereinabove and there
is
no
irrationality
in
the
impugned
Government Order dated 28.03.2005.

(24)

Moreso,
it
is
true
that
"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
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,
petitioners cannot claim that they 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 petitioners that the
applicability of New Pension Scheme
would amount to change in the terms and
conditions of recruitment is also untenable.

(25) At this juncture, it would be
relevant to add herein that in State of
230 INDIAN LAW REPORTS ALLAHABAD SERIES
Punjab v. Amar Nath Goyal : (2005) 6
SCC 754, the Apex Court has held :-

"37. In the instant case before us,
the cut-off date has been fixed as 1-4-1995
on a very valid ground, namely, that of
financial constraints. Consequently, we
reject the contention that fixing of the cutoff date was arbitrary, irrational or had no
rational basis or that it offends Article 14."

(26) In State of Bihar v. Bihar
Pensioners Samaj : (2006) 5 SCC 65, the
Apex Court has held :-

"17. We think that the contention is
well founded. The only ground on which
Article 14 has been put forward by the
learned counsel for the respondent is that the
fixation of the cut-off date for payment of the
revised benefits under the two notifications
concerned was arbitrary and it resulted in
denying arrears of payments to certain
Sections of the employees. This argument is
no longer res integra. It has been held in a
catena of judgments that fixing of a cut-off
date for granting of benefits is well within the
powers of the Government as long as the
reasons therefor are not arbitrary and are
based on some rational consideration."

(27) The Apex Court, in the case of
Sudhir Kumar Kansal Vs. Allahabad
Bank : 2011 (2) ESC 243, has 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.

(28) Thus, this court is of the
inevitable conclusion 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 a 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.

(29) An amendment in the Rules of
1961 was 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."

(30) 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 petitioners'
appointment is after the cut-off date i.e.
1.4.2005 and they have never questioned
their appointment so offered, it would not
12 All. Sheeldhar Singh & Ors. Vs. State of U.P. & Ors.
231
be open for the petitioners 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. Therefore,
the contention in that regard 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.

(31) 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.

(32)

It
is
manifest
that
the
applicability of the 1961 Rules is made
dependent upon an incumbent actually
being recognized as having become a
member of the service on or before 1st
April 2005. Viewed on its plain language it
must be held, as this Court does, that entry
into service alone would be determinative
and since that event would occur only upon
the issuance of an actual appointment letter
and consequential joining it is these twin
facets alone which would govern the issue
of applicability of the Old or New Pension
Scheme. Unless an incumbent is formally
inducted into service, he cannot be viewed
as having become a member thereof or a
holder of a post. The expression "entering
services or posts..." cannot be understood
as referring to or hinging upon something
inchoate or nebulous. Till such time as the
incumbent accepts the offer of appointment
and joins on the post, his position remains
that of someone waiting at the threshold. It
is only once he accepts the appointment,
the terms and conditions stipulated therein
and joins that he is ordained in service. In
view of the aforesaid exposition the Court
comes to conclude that the expression
"entering" cannot be accorded any other
interpretation.

(33) The Court additionally notes that
the provisions of Rule 2(3) of the 1961
Rules have not been assailed. The judgment
therefore must necessarily proceed on the
basis of that it is that provision alone which
governs and must dictate the answer to the
question posited. That Rule, as noted
above, clearly refers to entry into service as
being the determinative factor. None of the
petitioners here are shown to have entered
into service prior to 01 April 2005.

(34) Insofar as the issue of clause 3
(v) of the Government Order dated
16.12.2022 is concerned, in para-9 of the
counter affidavit, specific stand of the State
is
that
the
State
Government,
vide
Government Order dated 27.01.2023, has
modified
the
Clause
3
(v)
of
the
Government Order dated 16.12.2022 and it
was made clear that efforts shall be made to
register PRAN of the employee but the
salary of the employee may not be withheld
on that count. Thus, the submission in this
regard on behalf of the petitioners has
become infructuous, more so, the aforesaid
Government Order dated 27.01.2023 is not
under challenge in the above-captioned writ
petitions.

(35) In view of the aforesaid, this
Court is of the firm view that there is no
illegality or infirmity in the impugned
Government Orders which have been
challenged in the above-captioned writ
petitions. More so, the learned Counsel for
232 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioners have failed to show any
ambiguity
or
arbitrariness
or
unreasonableness
in
the
impugned
Government Orders.

(36)

The
above-captioned
writ
petitions
are,
accordingly,
dismissed
leaving it open to the parties to bear their
own costs.
----------
(2023) 12 ILRA 232
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.12.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Crl. Misc. Anticipatory Bail Application U/S 438
Cr.P.C. No. 2926 of 2023

Aaiya @ Irshad Ahmad ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Manoj Kumar Singh

Counsel for the Respondent:
G.A.