# Sunita Shukla & Ors v. State of U.P. & Anr

- **Citation:** (2020) 12 ILRA 712
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-01
- **Case number:** Service Single No. 23351 of 2020
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunita-shukla-ors-v-state-of-u-p-anr-45508
- **Pages:** 5

## Headnote

A. Service Law - Old Pension Scheme - The
petitioners claimed to have appeared for a
selection process which was advertised in the
year 2011 which eventually got delayed. The
appointment got concluded in the year 2006 by
which the New Post Retirement Scheme had
come into force and the Old Pension Scheme
had seized to be effective from 01.04.2005. The
Court rejected the claim of the petitioner
seeking benefits of Old Pension Scheme on the
ground that the petitioner neither approached
this Court seeking any remedy for expeditious
selection and appointment nor they raised any
12 All. Sunita Shukla & Ors. Vs. State of U.P. & Anr.
713
dispute with regard to applicability of new post
retirement scheme from the date of their
appointment and readily accepted the conditions
of service applicable including the new post
retirement scheme. (Para 11)

The Court observed that the there is a
distinction between the rules of recruitment and
conditions of service. The principle that rules of
recruitment cannot be changed can have no
applicability in a scenario where conditions of
service is changed on account of change in the
service rules. Pension etc. would fall within the
meaning of conditions of service and not
conditions of recruitment, therefore, conditions
of service can always be changed. (Para 9)

Writ Petition rejected. (E-10)

List of Cases cited: -

## Text

712 INDIAN LAW REPORTS ALLAHABAD SERIES
similar circular, subsequently issued vis-avis the Sixth Pay Commission, stands to
defeat the petitioner's claim. The law is
well settled that the validity of an order
under challenge before the Court can be
judged by the reasons that it carries.
Nothing can be added to the reasons, on
which the impugned order is founded by
way of affidavits, much less submissions
made during the hearing.

12. In this view of the matter, the
submissions advanced by Mr. Ravindra
Singh, founded on the decision of this
Court in Jay Narayan Tiwari cannot avail
the respondents.

13. It must be remarked that the
petitioner has reportedly retired. In case a
decision
to
implement
the 6th Pay
Commission were to be taken and the
petitioner's claim considered, he would be
entitled to revised pay-scale from an
appropriate date and also revision of his
post-retiral benefits.

14. In the result, this writ petition is
allowed in part. The impugned order dated
09.03.2015 is hereby quashed. The matter
stands remitted to the Cane Commissioner,
U.P. Lucknow and also to the Managing
Director, U.P. Cooperative Cane Union
Federation Ltd., Lucknow to take a
decision between them, or whosoever is
entitled
under
law,
regarding
implementation of the 6th Pay Commission
for the Sahkari Ganna Vikas Samiti Ltd.,
Dhaulana, Hapur based on the pending
recommendation dated 10.02.2011 and
further recommendation made in the
matter, within a period of one month of the
date of receipt of a copy of this order. In
case
the
6th
Pay
Commission
recommendations are implemented for the
Sahkari Ganna Samiti concerned, the
petitioner's emoluments and post retiral
benefits would be revised and paid, within
three months of the decision to implement
the pay commission recommendations.

15. There shall, however, be no order
as to costs.

16. Let this order be communicated to
the Cane Commissioner, U.P. Lucknow and
the Managing Director, U.P. Cooperative
Cane Union Federation Ltd., Lucknow by
the Joint Registrar (Compliance).
----------
(2020)12ILR A712
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.12.2020

BEFORE

THE HON'BLE RAJAN ROY, J.

Service Single No. 23351 of 2020

Sunita Shukla & Ors. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Aditya Vikram Shahi, Prashant Vikram
Singh, Shradha Singh.

Counsel for the Respondents:
C.S.C.

A. Service Law - Old Pension Scheme - The
petitioners claimed to have appeared for a
selection process which was advertised in the
year 2011 which eventually got delayed. The
appointment got concluded in the year 2006 by
which the New Post Retirement Scheme had
come into force and the Old Pension Scheme
had seized to be effective from 01.04.2005. The
Court rejected the claim of the petitioner
seeking benefits of Old Pension Scheme on the
ground that the petitioner neither approached
this Court seeking any remedy for expeditious
selection and appointment nor they raised any
12 All. Sunita Shukla & Ors. Vs. State of U.P. & Anr.
713
dispute with regard to applicability of new post
retirement scheme from the date of their
appointment and readily accepted the conditions
of service applicable including the new post
retirement scheme. (Para 11)

The Court observed that the there is a
distinction between the rules of recruitment and
conditions of service. The principle that rules of
recruitment cannot be changed can have no
applicability in a scenario where conditions of
service is changed on account of change in the
service rules. Pension etc. would fall within the
meaning of conditions of service and not
conditions of recruitment, therefore, conditions
of service can always be changed. (Para 9)

Writ Petition rejected. (E-10)

List of Cases cited: -

1. Mahesh Narayan & ors. Vs St. of U.P. & ors.
Writ Petition No.. 55606 of 2008

2. Manoj Kumar Singh & 17 ors. Vs St. of U.P &
ors. Writ A No. 5414 of 2020 (Followed)

3. Firangi Prasad Vs St. of U.P. & ors. 2011 (2)
UPLBEC 987

4. Ashutosh Joshi & ors. Vs. St. of Uttarakhand
& ors. Writ Petition (S/S) No. 1170 of 2010

5. Inspector Rajendra Singh Vs U.O.I. (2017)
SCC Online Delhi 7879

6. Naveen Kumar Jha Vs U.O.I. & ors.

7. Shankarsan Das Vs U. O. I. & ors. (1991) 3 SCC 47

8. Balwant Singh & ors. Vs St. of Uttarakhand
Writ Petition No. 16 and 944 of 2011

(Delivered by Hon'ble Rajan Roy, J.)

1.

Heard
learned
counsel
for
petitioners and learned Additional Chief
Standing Counsel for State.

2. This writ petition has been filed by
petitioners seeking a writ of mandamus
commanding respondents to provide them
benefit under the Old Pension Scheme as
existing prior to 01.04.2005.

3. The petitioners are still in service
and have not retired. The petitioners claim
to have appeared in a selection for
appointment against post of Staff Nurse
advertised in the year 2001. It is said that
for some reason beyond their control the
selection got delayed. They are not aware
of the reason why this happened. Be that as
it
may,
the
petitioners
were
given
appointment in 2006. They have referred to
one writ petition bearing No. 3106 (M/S) of
2001 filed by some other persons but the
counsel could not point out as to what was
the issue involved therein. Nevertheless,
the fact of the matter is that petitioners
never approached the High Court prior to
2006 seeking expeditious selection or
appointment, as the case may be. It is also
not in dispute that the petitioners accepted
appointment in 2006 by which the New
Post Retirement Scheme had come into
force and the Old Pension Scheme had
seized to be effective from 01.04.2005. The
fact of the matter is that the date of entry of
petitioners in service is subsequent to
01.04.2005.

4. The basis of the claim of petitioners
for benefit under the Old Pension Scheme,
as and when the occasion arises, is a
decision of this Court in the case of
Mahesh Narayan and Ors. Vs. State of U.P.
and Ors.; Writ Petition No. 55606 of 2008,
however, this issue and the applicability of
the decision in Mahesh Narayan's case
(supra) came up for consideration before a
co-ordinate Bench of this Court in Writ- A
No. 5414 of 2020; Manoj Kumar Singh and
17 Ors. Vs. State of U.P. and Ors. wherein,
the
Co-ordinate
Bench
opined
that
recruitment in the said case commenced on
714 INDIAN LAW REPORTS ALLAHABAD SERIES
20.10.1999 in respect of a pensionable post.
The recruitment got delayed on account of
a dispute raised before this Court. Although
by virtue of the order passed in Special
Appeal No. 485 (S/B) of 2001, dated
29.12.2001, there was no impediment in
completion of recruitment but the selection
got completed only after dismissal of writ
petition on 05.07.2005. In between, a
subsequent advertisement was issued and
the selected candidates were appointed
prior to 01.04.2005 i.e. during the Old
Pension Scheme. The Notification dated
28.03.2005, 07.04.2005 and the amended
rules of 2005 were challenged as not being
applicable upon the petitioner. The writ
petition was partly allowed in Mahesh
Narayan's case (supra). This Court in
Manoj Kumar Singh's case (supra) opined
that the judgment in the case of Mahesh
Narayan's case (supra) is again on the facts
of its own, inasmuch as, the recruitment
process was delayed for no obvious reason
and persons appointed pursuant to a
subsequent notification were appointed
earlier and were granted the benefit of old
pension rules. Persons appointed against a
previous advertisement could not be denied
benefits which had already been extended
to the appointees of a later recruitment
exercise. The Court opined that the
protection in the form of benefit under old
pension rules in Mahesh Narayan's case
(supra) had been extended only to protect
against an arbitrary act. The Court further
opined that this judgment did not lay down
any proposition that delay in concluding
selection would ipso facto result in
applicability of old pension scheme.

5. In Manoj Kumar Singh's case
(supra) various other decisions cited by the
petitioners such as Firangi Prasad Vs. State
of U.P. and others reported in 2011 (2)
UPLBEC 987, Ashutosh Joshi and others
vs. State of Uttarakhand and others; Writ
Petition (S/S) No. 1170 of 2010 decided on
17.06.2013 and Special Appeal No. 330 of
2013
decided
on
26.06.2014
arising
therefrom as also a decision of Delhi High
Court in Inspector Rajendra Singh Vs.
Union of India reported in (2017) SCC
Online Delhi 7879 were considered and
distinguished.

6. In Inspector Rajendra Singh's case
(supra)
also,
the
petitioners
were
discriminated, inasmuch as, after being
selected they were declared medically
unfit. While their matter was pending
before the Review Medical Board, the
Commission declared results of all other
selected candidates, except the petitioners.
Others were appointed and were entitled to
the benefit of Old Pension Scheme but on
account of delay in appointment of the
petitioners,
who
were
subsequently
declared medically fit, they were denied the
benefit, therefore, that was also a case of
discrimination. The co-ordinate Bench
opined that Similar were the facts in the
case of Naveen Kumar Jha Vs. Union of
India and others, decided by Delhi High
Court on 2.11.2012.

7. As regards the decision in Firangi
Prasad's case (supra) the co-ordinate Bench
in Manoj Kumar Singh's case (supra)
opined that it was a case of arbitrariness
and covered by the exception carved out in
Shankarsan Das Vs. Union of India and
others reported in (1991) 3 SCC 47 as
appointment had been arbitrarily denied to
the selected candidate within 10 days as
was mandated, resulting in delay in
regularization.

8. With regard to Ashutosh Joshi's
case also (supra), although a passing
observation was noticed by a co-ordinate
12 All. Sunita Shukla & Ors. Vs. State of U.P. & Anr.
715
Bench that selection having commenced
during old pension scheme it would be
applicable upon male candidates appointed
later,
yet,
as
observed
by
it,
this
observation had to be read in the context of
the fact that similarly placed women
candidate were covered by the old pension
rule. It opined that the Court in Ashutosh
Joshi's
case
(supra)
apparently
was
protecting
the
petitioners
against
an
arbitrary scenario and thus this case also
fell in the excepted category in Shankarsan
Das
(supra)
of
arbitrariness
and
discrimination.

9. Other decision of Uttrakhand High
Court in Balwant Singh and Ors. Vs. State
of Uttrakhand (Writ Petition No. 16 and
944 of 2011) was also dealt with and it was
observed by the co-ordinate Bench that
there is a distinction between rules of
recruitment and conditions of service. The
principle that rules of recruitment cannot be
changed can have no applicability in a
scenario where conditions of service is
changed on account of change in the
service rules. Pension etc. would fall within
the meaning of conditions of service and
not conditions of recruitment, therefore,
conditions of service can always be
changed. Ultimately, the co-ordinate Bench
in Manoj Kumar Singh's case (supra)
opined as under:-

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

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

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

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

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

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

31. Writ petition lacks merit and is
dismissed.

Order Date :- 13.10.2020

Ranjeet Sahu/Ani"

10. In the present case also no case of
arbitrariness and discrimination had been made
out on the lines noticed hereinabove in other
cases. It is not a case of persons similarly
situated in the same selection having been
discriminated. It is not a case where selectees of
a subsequent advertisement were appointed
under the Old Pension Scheme while the
selection of petitioners was kept pending nor is
it a case where any discrimination had been
made in this regard.

11. One of the glaring facts is that after
issuance of advertisement the petitioner never
approached this Court seeking any remedy for
expeditious selection and appointment. Even
after 2006 they readily accepted their
appointment without demunr, meaning thereby,
they also accepted the conditions of service
applicable including the new post retirement
scheme and the fact that the Old Pension
Scheme became unavailable to them w.e.f.
01.04.2005
as
their
appointment
was
subsequent to it.

12. As observed by the co-ordinate
Bench merely because a person has
participated in a selection that by itself does
not give any right to appointment nor to
any benefits accruing therefrom. The fact is
that petitioners were appointed in 2006 and
not prior to 01.04.2005.

13. Now, after 14 years for the
petitioners to come to this Court saying that
they should be given the benefit of the Old
Pension Scheme is rather belated apart
from being impermssible.

14. The plea that the petitioners were
absolutely unaware about the conditions of
service is hardly acceptable in the facts and
circumstances of the case. Ignorance is no
excuse in law. Necessary deductions must
have been made from their monthly salary
under the New Pension Scheme which
would make them fully aware as to what
are the dues admissible and payable to
them after retirement. Moreover, any
conscious and prudent person would
inquire
about
the
service
and
post
retirement benefits which they would be
entitled to once they enter into service or
within a reasonable period of such
entrance.

15. Any plea based on Shankarsan
Das (supra) had to be raised at the
appropriate time which was never done.

16. In view of the above, the case at
hand is squarely covered by the decision
dated 13.10.2020 rendered in the case of
Manoj Kumar Singh (supra) and there is no
reason for this Court, in the facts of the
present case, to take a view different from
what has already taken by a co-ordinate
Bench.

17. Accordingly, the writ petition
lacks merit and is liable to be dismissed. It
is, accordingly, dismissed.
----------
(2020)12ILR A716
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.11.2020

BEFORE

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