# U.P. Lekhpal Sangh & Ors v. State of U.P. & Ors. 402 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 12 ILRA 401
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-26
- **Case number:** Writ-A No. 18197 of 2021
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-lekhpal-sangh-ors-v-state-of-u-p-ors-402-indian-law-reports-allahabad-series-49591
- **Pages:** 43

## Headnote

Law
-
Constitution
of
India,1950-Article
226-Old
pensionPost
of
lekhpal-
lekhpal
whose
selection and training were completed
in Session year 2003-04 up to August,
2004, prior to 01/04/2005 on date
enforcement of New Pension SchemeHeld, must be treated as governed by
Old
Pension
Rules-Respondents
directed to make a regular deduction
towards General Provident Fund (under
Old Pension Rules) instead of deduction
in
terms
of
new
Pension
Scheme
regularly every month from salary of
petitioners.(Para 1 to 137)

The writ petition is allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,970 of 146,183. This is a partial read: ask again with offset=39970 for what follows._

12 All. U.P. Lekhpal Sangh & Ors. Vs. State of U.P. & Ors.
401
government should have appreciated his
courage to show admission and should
have warned him to be careful in future.

71. Coming to the argument advanced
by learned Additional Advocate General
that admission is the best piece of evidence
and delinquent employee having admitted
that he had forwarded the message, nothing
more required to bring home the charge, I
find that admission was only to the extent
that he got the message forwarded due to
inadvertence as he was trying to delete the
same and further I find that admission was
also that petitioner had asked everyone to
delete the message. So admission was as to
the inadvertent mistake and not as to the
intention to forward the message to defame
the Chief Minister or his government.
Eventually
he
wanted
and
honestly
attempted
to
delete
the
questionable
message. The admission is to be read
contextually and not in isolation and so in
my
considered
view
there
was
no
admission as to the charge levelled against
the petitioner.

72. The principles as discussed in
authorities cited by learned counsel for the
petitioner as well as learned Additional
Advocate
General
herein
this
above
judgment, I find that the order of dismissal
deserves interference.

73. Thus the second argument as to
quantum of punishment being shockingly
disproportionate to the guilt proved though
partly also holds merit and impugned order
deserves to be quashed.

74. In view of the above, writ petition
succeeds and is allowed. The order dated
7th September, 2020 is hereby quashed.
Petitioner shall be reinstated in service and
shall be entitled to all consequential
benefits.

75. The matter is remitted to the
extent that the respondent authority may
impose any minor punishment in its
discretion taking into consideration that
admission of the petitioner and his fairness
in reporting to the Government that he got
objectionable message forwarded in the
whatsapp group in the midnight hours
mistakenly and deleted the same within 2-3
minutes and messaged others in whatsapp
group to delete the message and also the
fact that there was no evidence available
that the message was got circulated and
was read by members of the whatsapp
group or any other member on his mobile
through whatsapp message. He can only be
just issued with a warning for his such
conduct if otherwise his career has been
blotless but for this solitary incident.

76. Appropriate order shall be passed
by the State Government within 30 days
from the date of production of certified
copy of this order.

77. Cost made easy.
----------
(2023) 12 ILRA 401
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.10.2023

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-A No. 18197 of 2021
with
Writ-A Nos. 42840 of 2015, 18159 of 2021 &
4660 of 2021

U.P. Lekhpal Sangh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
402 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioners:
Sri S.K. Srivastava, Sri Kailash Nath Singh, Sri
Ashok Khare (Sr. Advocate)

Counsel for the Respondents:
C.S.C.

A.
Civil
Law
-
Constitution
of
India,1950-Article
226-Old
pensionPost
of
lekhpal-
lekhpal
whose
selection and training were completed
in Session year 2003-04 up to August,
2004, prior to 01/04/2005 on date
enforcement of New Pension SchemeHeld, must be treated as governed by
Old
Pension
Rules-Respondents
directed to make a regular deduction
towards General Provident Fund (under
Old Pension Rules) instead of deduction
in
terms
of
new
Pension
Scheme
regularly every month from salary of
petitioners.(Para 1 to 137)

The writ petition is allowed. (E-6)

List of Cases cited:

1. Firangi Prasad Vs St. U.P. & ors. (2010) SCC
Online All. 2219
2. Mahesh Narayan & ors. Vs St. of U.P. & ors.
Writ A No. 55606 of 2008

3. Govt. of NCT of Delhi & ors. Vs Ajay Kumar
& ors. Writ C No. 838 of 2016

4. Kamlesh Kumar Sonaker ors. Vs St. of U.P. &
ors. Writ A No. 55607 of 2008

5. Insp. Rajendra Singh Vs U.O.I. (2017) SCC
Online Del. 7879

6. Bageshwari Prasad Srivastava & ors. Vs St.
of U.P & ors. Writ A No. 28543 of 2013

7. Tanaka Ram & ors. Vs U.O.I. & ors., Delhi
HC decided on 12.02.2019

8. Parmanand Yadav Vs U.O.I., decided on
13.01.2016

9. Parneet & ors. Vs St. of U.P & ors. Writ A No.
4191 of 2021
10. State of U.P & ors. Vs Shiv Kant Tiwari
SPLAD No. 448 of 2021

11. Satyesh Kumar Mishra & ors. Vs St. of U.P.
ors. (2016) 6ADJ 808 LB

12. Rakhi Ray & ors. Vs HC of Delhi & ors.
(2010) 2 SCC 637

13. Vijoy Kumar pandey Vs Arvind Kumar Rai &
ors. (2013) 11 SCC 611

14. Ram Nakul Vs St. of U.P & ors. Writ-A No.
15392 of 2012

15. Ravi Raj & ors. Vs St. of U.P. & ors. (2020)
3 ADJ 408

16. Bharat Yadav Vs St. of U.P. & ors. Writ A
No. 16838 of 2019

17. Shaharoz Alam & ors. Vs St. of U.P. & ors.
(2020) 10 ADJ 47

18. Manoj Kumar Singh & ors. Vs St. of U.P. &
anr. (2020) 10 ADJ 479

19. Naveen Kumar Jha Vs U.O.I. & ors. (2012)
SCC Online Delhi 5606 (W.P.(C) No. 3827 of 2012

20. Satyesh Kumar Mishra & ors. Vs St. of U.P.
ors. (2016) 6 ADJ 808 LB

21. Chintels India Ltd Vs Bhayana Builders Pvt.
Ltd (2021) 4 SCC 602

22. Malik Mazhar Sultan (3) Vs U.P.PSC

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Ashok Khare, learned
Senior Counsel assisted by Sri Kailash Nath
Singh, learned counsel for the petitioner and
Sri Neeraj Tripathi, learned Additional
Advocate General assisted by Sri Shashank
Shekhar, learned Additional Chief Standing
Counsel for the respondents.

2. Since the controversy involved in
the aforesaid writ petitions are identical,
12 All. U.P. Lekhpal Sangh & Ors. Vs. State of U.P. & Ors.
403
therefore, all writ petitions are being
decided
together
with
this
common
judgement.

3. For convenience, the facts are
being delineated from Writ-A No. 18197 of
2021.

4. The petitioners by means of the
present writ petition have prayed for the
following relief:-

"I. Issue a writ, order or direction in
the nature of mandamus directing the
respondents to treat the petitioner Nos.3 to
8 and similarly situated other Lekhpals
whose
selection
and
training
were
completed in the Session year 2003-04 upto
August, 2004, prior to 01/04/2005 on the
date enforcement of New Pension Scheme
and same may be treated as governed by
the Old Pension Rules.

ii. Issue a writ, order or direction in
the nature of mandamus directing the
respondents to make a regular deduction
towards General Provident Fund (under
Old Pension Rules) instead of deduction in
terms of new Pension Scheme regularly
every month from the salary of the
petitioners.

iii. Issue any other suitable writ order
or direction as this Hon'ble Court may
deem fit and proper in the circumstances of
the case to meet the end of justice.
iv. Award the cost of the writ petition to the
petitioners."

5. The facts in brief are that petitioner
no.1 is an organisation of the Government
of Uttar Pradesh Employees (hereinafter
referred to as 'Sangh') posted in the revenue
department on the post of Lekhpal. The
petitioner no.2 being Treasurer has been
authorised by the Sangh to file the present
writ petition. The petitioners nos.3 to 8 are
also members of the Sangh and are working
as Lekhpal in different districts and are
entitled to the relief prayed for in the writ
petition.

6. The post of Lekhpal is a NonGazetted Subordinate Service (Group-C)
post
and
comes
under
the
revenue
department. The service conditions of the
Lekhpal are governed by the U.P Lekhpal
Service Rules, 1958 (hereinafter referred to
as 'Rules, 1958').

7. It appears that the Board of
Revenue wrote a letter to the District
Magistrates of different districts to make
the appointment for the post of Lekhpal. In
pursuance of the said letter, the District
Magistrates started selection proceedings
and issued an advertisement in respect to
their districts. An Advertisement No.492/7Bhulekh dated 04.02.1999 was issued by
the
District
Magistrate,
Shahjahanpur
inviting applications for selection for
recruitment against 32 posts of Lekhpal in
District
Shahjahanpur.
Similarly,
the
District Magistrate, Jaunpur issued an
Advertisement No.636/7-Bhulekh dated
27.02.1999 for recruitment against 97 posts
of Lekhpal in District Jaunpur. The District
Magistrate,
Baghpat
by
advertisement
dated 18.06.2002 invited applications for
recruitment on 14 posts of Lekhpal in
District Baghpat. The petitioners being
eligible
and
qualified,
submitted
application
for
being
considered
for
appointment on the post of Lekhpal.

8. The written examination for
selection for the post of Lekhpal was
conducted
on
05.11.2000
in
district
Shahjahanpur; on 07.05.2000 in district
Jaunpur and on 23.10.2001 in district
Baghpat.
The
petitioners
passed
the
physical test. The final result of the
404 INDIAN LAW REPORTS ALLAHABAD SERIES
selection in district Shahjahanpur was
declared on 24.10.2001. Further case of the
petitioners is that after the selection was
finalised in the year 2001, petitioners were
not permitted to join for undergoing
training for the post of Lekhpal on account
of the stay order granted by the Apex Court
in Writ Petition (Civil) No.488 of 2001
(Akhil Bhartiya Chatra Yuva Berojgar
Front Vs. State of U.P.) under Article 32 of
Constitution of India wherein a challenge
was raised in respect to U.P. Public Service
(Reservation for Schedule Castes, Schedule
Tribes and Other Backward Class) Act,
1994 (hereinafter referred to as 'Act, 1994').
The State Government on account of the
stay order by the Apex Court in the
aforesaid writ petition kept in abeyance the
selection proceedings. Later on, the State
Government rescinded the amendment
made in the Act, 1994 and restored the
position of the said act as it stood before
the amendment. Consequently, the writ
petition before the Apex Court became
infructuous and stood dismissed.

9. After the dismissal of the Writ
Petition (Civil) No.488 of 2001 by the
Apex Court, the State Government issued a
Government
Order
dated
12.04.2003
directing the concerned authorities to
finalise the selection proceedings which
had already been initiated.

10.

In
compliance
with
the
Government Order dated 12.04.2003, the
Commissioner and Secretary of the Board
of Revenue issued a Circular dated
01.05.2003
addressed
to
District
Magistrates
of
all
the
districts
for
concluding the selection proceedings which
had already been undertaken. The said
letter further directed the concerned District
Magistrate to complete the selection
proceeding/interview and declare the final
result so that the selected candidates may
take admission by 22.05.2003 and be sent
for training.

11. The said letter further recited that
in those districts where written examination
in respect to selection on the post of
Lekhpal was held in December 2001, but
due to some unavoidable circumstances,
their interview and fitness test were not
conducted, it should be completed by
15.05.2003 and the result be declared so
that the selected candidates should take
admission by 22.05.2003.

12. In compliance with the said letter,
the Additional District Magistrate (Finance
& Revenue), Baghpat issued an order dated
05.05.2003 in respect of his district
directing the selected candidates to take
admission in Lekhpal Training School,
Sahanpur, Bijnor by 22.05.2003.

13. The petitioners took admission
and participated in the training session
2003-04
in
their
respective
Lekhpal
Training Schools. They completed their
training in the year 2004 and the written
examination of the Lekhpal Training was
held in August 2004, but their result was
not declared. However, the result of
Lekhpal
Training
was
declared
on
17.05.2005. After the declaration of the
result,
the
petitioners
were
issued
appointment letters between June 2005 to
July 2005. The petitioners and other
Lekhpals joined the post of Lekhpal
immediately after getting the appointment
letters.

14. In the meantime, the State
Government issued a notification dated
28.03.2005 notifying a New Contributory
Pension Scheme to be effective from
01.04.2005.
The
State
Government
12 All. U.P. Lekhpal Sangh & Ors. Vs. State of U.P. & Ors.
405
pursuant to the aforesaid notification issued
another notification titled 'U.P Retirement
Benefits
(Amendment)
Rules,
2005
(hereinafter referred to as 'Rules, 2005')
dated
07.04.2005
amending
the
U.P
Retirement Benefit Rules, 1961 (hereinafter
referred to as 'Rules, 1961').

15. By Rules 2005, sub-rule 3 has
been added in Rule 2 of Rules, 1961 which
states that any appointment made after
01.04.2005 shall be governed by the New
Pension Scheme. Consequently, petitioners,
who have been selected pursuant to the
advertisement in the year 1999 & 2000,
have been placed under the New Pension
Scheme
as
they
have
been
issued
appointment letters after 01.04.2005.

16. The grievance of the petitioners is
that though the selection process for
appointment to the post of Lekhpal
commenced
with
the
publication
of
notification in the years 1999 & 2000, but
because of the apathetic and lackadaisical
approach of respondents, the inordinate
delay of more than five years had occurred
in completing the selection process which
was concluded after 01.04.2005 causing
serious prejudice to the petitioners as they
have been placed under the New Pension
Scheme whereas if the selection process
had been concluded expeditiously within a
reasonable time, the petitioners would have
been placed under the Old Pension Scheme.
Therefore, petitioners can not be penalised
for the inaction on the part of respondents
in taking the exorbitant time of more than
five years to conclude the selection by
placing them under the New Pension
Scheme rather they are entitled to be placed
under the Old Pension Scheme.

17. The petitioners have also placed a
notification dated 17.02.2020 issued by the
Central Government giving the option to its
employees to opt either for Old Pension
Scheme or New Pension Scheme in cases
where the selection for appointment was
finalised before 01.01.2004, but they joined
the
Government
service
on
or
after
01.01.2004. The petitioners also placed one
more notification along with the rejoinder
affidavit issued by the Central Government
dated 03.03.2023 whereby
the Central
Government gave an option to its employees
who were recruited against the posts/vacancies
advertised/notified for recruitment on or before
22.12.2003 to either opt for Old Pension
Scheme or New Pension Scheme.

18. The respondents have filed a counter
affidavit
contending
inter-alia
that
the
Government of U.P. issued a Gazette dated
28.03.2005 whereby it adopted the New
Contributory
Pension
Scheme
of
the
Government of India in place of the Old
Pension Scheme. The New Contributory
Pension Scheme came into effect from
01.04.2005 for the employees of the State
Government. The petitioners were selected as
per the provisions of Rules, 1958 which
provides for source and procedure of
recruitment. It is stated that petitioners joined
their duties after 01.04.2005, and therefore,
they are covered under the New Contributory
Pension Scheme and are not entitled to the
benefit of the Old Pension Scheme. It is
further stated that since at the time of
appointment
of
petitioners,
the
New
Contributory Pension Scheme came into effect
from 01.04.2005 in pursuance to the
Government
Order
dated
28.03.2005,
therefore, no deductions were made from the
salary
of
petitioners
towards
General
Provident Fund (GPF). It is further stated that
as the petitioners have been allotted Index
Number/PRAN Number, therefore, they are
entitled to the benefits of the New Pension
Scheme.
406 INDIAN LAW REPORTS ALLAHABAD SERIES

19. The respondents also stated that
the selection of Lekhpal was made in the
year 2001 on the basis of the notification
published in the year 1999-2000 by the
Board of Revenue in the light of provisions
of Rules, 1958. It is further stated that the
services of the Lekhpal were pensionary
services under the provisions of Rules,
1958. Further case of the respondents is
that the training programme of the Lekhpal
was issued vide Board's Letter No.12183
dated 03.12.2001 which was to commence
from 01.01.2002. However, on account of
the stay order passed by the Apex Court
with respect to the reservation in the
recruitment of Group-C vacancies, the
training programme of the Lekhpal was
kept in abeyance by the Government Order
dated 29.08.2003.

20. Subsequently, the restriction
imposed on recruitment was removed by
the Government Order dated 15.01.2004,
and in pursuance to the said Government
Order, the Board of Revenue opened the
Lekhpal Training Centers. Thereafter, the
candidates
selected
by
the
District
Magistrate
were
given
admission
to
Lekhpal Training Centers on 01.11.2004.
After successful completion of one year
training, the proceedings were initiated as
per the rule for grant of appointment to
those
candidates
who
passed
the
examination after training.

21. It is further stated that the Finance
Department
vide
notification
dated
07.04.2005
introduced
Rules,
2005
whereby Rule 2 of Rules, 1961 was
amended by including sub-Rule 3 after subRule 2 and it was provided that the benefit
of Old Pension Scheme will not be
applicable on the recruitment made after
01.04.2005. Since the petitioners have been
appointed after 01.04.2005, therefore, they
are covered under the New Contributory
Pension Scheme.

22. It is further stated that keeping in
view the demands made by the Lekhpal
'Sangh', the Board vide letter dated
16.06.2016 requested the Government to
sympathetically consider the case of those
Lekhpals under the Old Pension Scheme,
who were selected before implementation
of New Pension Scheme, but the result of
their training was declared on 30.05.2005.
The Government, thereafter, informed the
Board about the order of the finance
department vide letter dated 12.06.2017
that the demand of the Lekhpal Sangh for
the
Old
Pension
Scheme
was
not
acceptable.

23. The Board, thereafter, again by
letter dated 13.11.2017 requested the
Government
to
revisit
its
decision.
Thereafter, the matter was referred to the
Karmik Department on 06.09.2019, but the
Karmik Department desired to seek the
opinion of the finance department in this
regard. Subsequently, the matter was
referred to the finance department for its
opinion on 26.11.2019. However, the
finance department did not agree to grant
the benefit of the Old Pension Scheme to
the Lekhpals on the ground that the training
period of the Lekhpal before the regular
appointment cannot be counted for pension.
Accordingly, it is stated that petitioners
have failed to make out any ground calling
for interference by this Court in the
exercise of its extraordinary jurisdiction
under Article 226 of the Constitution of
India.

24. The petitioners have filed a
rejoinder affidavit denying the averments in
the counter affidavit and reiterated the
averments made in the writ petition.
12 All. U.P. Lekhpal Sangh & Ors. Vs. State of U.P. & Ors.
407

25. In the rejoinder affidavit,
petitioners further stated that the Board by
letter dated 03.12.2001 scheduled the
training programme. However, the Board
based on the Government Order dated
21.12.2001 issued a letter dated 27.12.2001
to postpone the training scheduled due to
some legal impediment. It is further stated
that the training schedule was re-fixed in
compliance with the Board's letter dated
01.05.2003 on 05.05.2003. According to
said
schedule,
the
training
was
to
commence from 01.06.2003 to 31.07.2004.
The petitioners denied the fact averred in
the counter affidavit that the training school
was reopened on 01.11.2004 on the basis of
the Government Order dated 15.01.2004.
The petitioners stated that this training
programme was related to the special
backlog recruitment of the Lekhpal for the
session 2004-05 which has no concern with
the recruitment of petitioners.

26. Sri Ashok Khare, learned Senior
Counsel for the petitioners has contended
that advertisements were issued in the years
1999 & 2000 in respect of the specified
post of Lekhpal, and the selection process
commenced in the year 2000, and the final
select list was declared in the year 2001,
therefore, the selection was completed in
the year 2001. However, in the meantime,
there was an interim order of the Apex
Court due to which petitioners were not
sent for training despite the declaration of
the result, therefore, the delay in sending
the petitioners to Lekhpal Training Centre
was not attributable to the petitioners, and
they cannot be made liable to suffer for
such delay.

27. It is further contended that the
stay order of the Apex Court stood
discharged
in
the
year
2003,
and
consequently, the State Government issued
a Government Order dated 12.04.2003
issuing
directions
for
finalising
the
selection proceedings which had already
commenced, and in pursuance of the said
Government Order, the Commissioner and
Secretary, Board of Revenue issued a
Circular letter dated 01.05.2003 addressed
to the District Magistrate of all the districts
to send the selected candidates for training
in Lekhpal Training School. The said letter
further provided 22.05.2003 as the cut-off
date for completing the admission to U.P.
Lekhpal Training School, and in case, a
candidate could not take admission by
22.05.2003, the incharge of the said school
considering the circumstances under which
such a candidate could not take admission
before the cut-off date may permit him to
take admission, however, if a candidate
could not take admission by 31.05.2003,
his selection shall be cancelled.

28. Thus, it is submitted that once the
Circular dated 01.05.2003 provided a cutoff date for admission and as per Rule 220
of U.P. Land Records Manual (hereinafter
referred to as 'U.P. Manual'), the school
term will commence on 1st of July of each
year and end with the examination in the
month of May following, therefore, the
session of the petitioners, who took
admission before 22.05.2003, commenced
on 01.07.2003 and ended in the month of
May following, therefore, the examination
should have been conducted and result
should have been declared as per Rules 220
& 223(vi) of U.P. Manual. Consequently, it
is submitted that the delay in declaring the
result was attributable to the inaction of the
State
Government
which
resulted
in
depriving the petitioners of a valuable right
of pension which they would have got if
the petitioners' training had been completed
within the period prescribed in Rule 220 of
U.P. Manual. Consequently, it is submitted
408 INDIAN LAW REPORTS ALLAHABAD SERIES
that unjustified delay on the part of the
State Government in completing the
session beyond the term prescribed in Rule
220 of the U.P. Manual was attributable to
the State, and for such fault of the State,
petitioners cannot be denied their valuable
right of pension.

29. It is further contended that Rule
223 (vi) of the U.P. Manual provides that
selected examiners shall send the result
sheets and answer books to the Collector
concerned within a fortnight of the date of
the
examination.
The
consolidated
statement of the results of the examination
shall be prepared by the President of the
Committee and sent by the Collector to the
Director of Land Records not later than one
week after the result sheets are received
from the examiners. Consequently, it is
submitted that according to Rule 223 (vi) of
the U.P. Manual, the scheme is provided to
declare the result expeditiously within 15
days
and
in
the
instant
case,
the
examination was conducted in August 2004
and the result was declared after April 2005
and appointment letters were issued in June
and July 2005, and no justifiable reasons
was given by the respondents in the counter
affidavit for the delay in declaring the
result
of
the
examination,
therefore,
petitioners cannot be refused the benefit of
Old Pension Scheme for the fault on the
part of the State in delaying the declaration
of the result of the examination.

30. It is further submitted that the
New Contributory Pension Scheme was
introduced w.e.f. 01.04.2005 by notification
dated 28.03.2005 which is consistent with
the
contributory
pension
scheme
formulated by the Central Government
which was made effective from 01.01.2004,
and the only difference between the scheme
introduced by the Central Government and
the State Government was that New
Contributory
Pension
Scheme
was
introduced by the Central Government
w.e.f
01.01.2004
whereas
State
Government introduced the said scheme
w.e.f 01.04.2005.

31. It is submitted that the Central
Government
by
notification
dated
17.02.2002 relaxed the New Contributory
Pension Scheme by extending the benefit
of the Old Pension Scheme in cases of
those employees, whose selection for
appointment
was
finalised
before
01.01.2004, but they joined the government
service on or after 01.01.2004. The Central
Government
again
by
notification
03.03.2023 relaxed the New Contributory
Pension Scheme and covered all those
Central Government employees who were
recruited
against
the
posts/vacancies
advertised/notified for recruitment on or
before 22.12.2003. Thus, it is submitted
that once New Contributory Pension
Scheme
introduced
by
the
State
Government is in conformity with the
New
Contributory
Pension
Scheme
introduced by the Central Government,
and Central Government by notification
dated
17.02.2002
and
03.03.2023
relaxed the New Contributory Pension
Scheme and covered all those employees
who
were
recruited
against
the
posts/vacancies advertised/notified for
recruitment on or before 22.12.2003,
therefore, the petitioners are also entitled
to the said benefit. Therefore, denial of
the
Old
Pension
Scheme
to
the
petitioners, who were appointed in the
vacancy advertised in the years 1999 &
2000 much before the introduction of the
New Contributory Pension Scheme is an
arbitrary exercise of power by the
respondent which is hit by Article 14 of
the Constitution of India.
12 All. U.P. Lekhpal Sangh & Ors. Vs. State of U.P. & Ors.
409

32. Per contra, Sri Neeraj Tripathi,
learned Additional Advocate General submits
that the petitioners have raised the grievance
and demanded the benefit of the Old Pension
Scheme, but their claim was turned down in
the year 2016 and again in the year 2017 as is
evident from the notes of the department
appearing at page 157 of the paper book and
since petitioners have not challenged the
same, they are estopped in law from claiming
the benefit of Old Pension Scheme. It is
further contended that the petitioners never
raised any challenge to the delay in the
declaration of result, and therefore, they have
acquiesced to it by their conduct and it is not
open to the petitioners to raise a challenge to
the delay in declaring the result to claim the
benefit of Old Pension by filing the present
writ petition after inordinate delay.

33. It is further submitted that Rule 223
(vi) of the U.P. Manual does not prescribe for
declaration of result within 15 days from the
date of examination, and therefore, the
argument of learned counsel for the
petitioners based upon Rule 223(vi) is
misconceived. He further submits that since
the right to appointment accrues only after
the petitioners got the certificate from
Lekhpal Training School and the benefits of
Service Rules would accrue to an employee
after his appointment, and as admittedly, the
petitioners had joined the service after
01.04.2005, therefore, all the benefits of
service shall accrue to them after their
joining, hence, they cannot be extended the
benefit of Old Pension Scheme as the New
Contributory
Pension
Scheme
was
introduced w.e.f 01.04.2005. It is also
submitted that it is stipulated in the
appointment letter that the service of the
petitioners shall be governed by the New
Contributory Pension Scheme, and once
they have not challenged it, they are
estopped in law in challenging the same.

34. To the aforesaid submission, Sri
Ashok Khare, learned Senior Counsel for
the petitioners submits that though the
Government has denied the benefit of the
Old Pension Scheme to the petitioners
earlier, but on the representation of the
petitioner no.1-Sangh, the Government
agreed to reconsider the same which is also
evident from the various correspondence,
and a decision with the approval of the
Additional Chief Secretary (Revenue),
State of U.P. (appended on page 167 of the
paper book) was taken to refer the matter to
the Finance Department to take the
concurrence
of
finance
department.
Therefore, the petitioners did not need to
challenge the rejection of their claim for the
benefit of the Old Pension Scheme. He
further submits that even otherwise, no
order had been supplied to petitioners
denying their claim for the Old Pension
Scheme.

35. He further submits that there was
no delay in filing the writ petition in
claiming the benefit of the Old Pension
Scheme as the petitioners would receive
pension after their superannuation. He
further submits that there is no stipulation
in the appointment letters that petitioners
shall be governed by the New Contributory
Pension
Scheme.
Accordingly,
it
is
submitted that contentions advanced by the
learned Additional Advocate General are
not sustainable in law.

36. I have considered the rival
submissions of the parties and perused the
record.

37. The facts that emanate from the
record are that respondents published
advertisements in the years 1999 & 2000
for recruitment against specified posts in
the advertisement on the post of Lekhpal.
410 INDIAN LAW REPORTS ALLAHABAD SERIES
The process of selection commenced in the
year 2000 and the written examination was
conducted in the year 2001, and results
were declared in the year 2001. However,
on account of the stay order passed by the
Apex Court, the process of selection was
deferred by the State Government. After the
discharge of the stay order of the Apex
Court, the State Government issued a
Government
Order
dated
12.04.2003
directing to finalize the selection process
which had already commenced.

38.

In
compliance
with
the
Government Order dated 12.04.2003, the
Commissioner and Secretary, Board of
Revenue issued a Circular letter dated
01.05.2003 addressed to the District
Magistrates of all the districts to restart the
selection process and admit the selected
candidates in U.P. Lekhpal Training School
for training. The cut-off date for admission
provided in the letter dated 01.05.2003 was
22.05.2003. However, if a candidate could
not join by 22.05.2003, the Incharge of the
school may admit such candidate by
31.05.2003 on being satisfied that the
candidate could not take admission before
the cut-off date for bona-fide reasons. In
case, a candidate could not join by
31.05.2003, his
candidature
shall
be
cancelled.

39. However, in the counter affidavit,
it is averred in paragraph no.8 that the
restriction imposed on the selection was
removed by Government Order dated
15.01.2004 and in pursuance thereto, the
Board of Revenue opened the Lekhpal
Training Centers and gave admission to the
candidates
on
01.11.2004
and
after
successful completion of one year of
training, the proceedings were initiated for
appointing those candidates who had
obtained the Lekhpal training certificate.

40. This Court may note the facts
delineated in the counter affidavit about the
removal of restrictions for admission in
Lekhpal Training School on 01.11.2004
relating to the petitioners are incorrect
inasmuch as if that be so, the training of
petitioners would have been completed in
October or November 2005 and petitioners
would have been given appointment after
November 2005. But in the instant case, the
petitioners admittedly have been given
appointments in June and July 2005.
Therefore, the averments made in the
counter affidavit about the lifting of
restrictions on the selection and admission
of petitioners in Lekhpal Training School
on 01.11.2004 are incorrect, more so when
the respondents have not denied the
assertion of petitioners in paragraphs
nos.18 to 20 of writ petition that the State
Government issued a Government Order
dated 12.04.2003 directing to finalize the
selection proceedings which had already
been initiated, and in compliance with the
Government Order dated 12.04.2003, the
Commissioner and Secretary, Board of
Revenue issued a Circular letter dated
01.05.2003 prescribing 22.05.2003 as the
cut-off date for admission in U.P. Lekhpal
Training School.

41. Now, in the light of aforesaid
facts, this Court proceeds to analyse
whether the action of the State Government
in denying the benefit of the Old Pension
Scheme to the petitioners is arbitrary and
whether petitioners are entitled to be placed
under the Old Pension Scheme.

42. Admittedly, the petitioners were
selected
and
appointed
as
per
the
provisions of Rules, 1958 which was
applicable at the time of appointment of
petitioners. Rules 5, 6 of Rules, 1958 and
Rule 7 of Rules, 1958 (as it stood before
12 All. U.P. Lekhpal Sangh & Ors. Vs. State of U.P. & Ors.
411
amendment) applicable to recruitment
before 2006 relevant in the context of the
present case are reproduced herein below:-

5. Source of recruitment.-(1) Only
such candidates as have obtained the
Patwari or Lekhpal School Certificate and
whose names have been brought on the list
mentioned in Rule 6 shall be eligible for
appointment to the service.

2. Notwithstanding anything contained
in sub-rule (1), persons who belong to the
category mentioned in paragraph 2 (3) (d)
of
Revenue
(B)
Department
G.O.
No.4434/B, dated April 27, 1953, and are
working in a temporary or officiating
capacity, with or without break in service,
shall be deemed eligible for appointment to
the service.

(3). The ex-patwaris who had a good
record
of
service
and
fulfil
other
qualifications and conditions prescribed for
appointment shall also be eligible for
appointment to the service.

(4). Ex-patwaris shall be treated as
new candidates and shall not get the benefit
of their past service in any manner.

(5). Ex-patwaris who have already
been absorbed in the service shall be
deemed to have been appointed under these
rules.

6. Procedure for recruitment.- (1) For
purposes of recruitment, the Collector shall
maintain in the following form a list of
candidates who have passed the Patwari or
Lekhpal School Examination:

Serial
No.
Name
of
candidate with
percentage
and residence
Date of
birth
Educa
tional
qualifi
cation
1
2
3
4

Year
of
passing
the
Patwari
or
Lekhpal
School
Examinat
ion
Total
No.
of
marks
obtained in
the
Examinatio
n
with
Division
Dates of
officiati
ng
periods
with
remarks
about
work
Remarks
5
6
7
8

(2).
Necessary
material
for
the
maintenance of this list shall be supplied
each year, as soon as examination results
are out, by the Collector in whose district
the Lekhpal School is located. The
Collector may, subject to the approval of
the Director, add to the list so received the
name of any other candidate who has
passed the Patwari of Lekhpal School
Examination.

(3). The names, in the list shall be
arranged
in
order
of
seniority
as
determined by the year of examination.
Seniority as between the candidates of the
same year shall be judged on the basis of
the aggregate marks obtained at the
examination. Where the aggregate marks
are equal, the seniority shall be determined
on the basis of age.

(3-A). A district-wise list of expatwaris fulfilling the conditions laid down
in sub-rule (3) of Rule 5 shall be
maintained by each Collector. The names in
this list shall be arranged according to the
length of service. If the length of service of
two or more ex-patwaris is the same the
names shall be arranged according to age.

Note-If any list is already maintained
in this behalf under executive orders of
Government it shall be deemed to be
maintained under this sub-rule.
412 INDIAN LAW REPORTS ALLAHABAD SERIES

(4).
The
lists
referred
to
the
examination and the Collector shall remove
the names of-

(a). Candidates who have received
permanent appointment;

(b). Other candidates for good and
sufficient reasons to be recorded in writing;

(c). Those candidates in the list
prescribed in sub-rule (3) of Rule 6 who
have exceeded the maximum age-limit for
appointment.

7. Appointment:-(1) Whenever posts
of Lekhpal fall vacant, the Assistant
Collector
shall
appoint
thereto
alternatively the senior-most candidate on
each of the two lists maintained under rule
6. In case no candidate is available in the
relevant list, the Assistant Collector may
make the appointment from the other list:

Provide that the Assistant Collector
may pass over any name or names for good
and sufficient reasons to be recorded in
writing:

Provided further that any person
aggrieved by any order passed by the
Assistant Collector under the first proviso
may prefer an appeal before the Collector
whose decision thereon shall be final.

(2). If a candidate does not accept the
appointment, when offered, shall be passed
over, and the next candidate in order of
seniority shall be appointed. The candidate
so refusing shall not be considered for
appointment in any subsequent vacancy
unless he furnishes good and sufficient
reasons for his refusal to the satisfaction of
the
Assistant
Collector.
Any
person
aggrieved by the order passed by the
Assistant Collector, may prefer an appeal
before the Collector, whose decision
thereon shall be final.

(3). When a district is under settlement
or record operations or under operations
for consolidation of holding, the Settlement
or Record Officer or the Settlement Officer
of the Consolidation, as the case may be,
make a temporary appointment against a
permanent
vacancy
pending
the
appointment of a permanent Lekhpal by the
Assistant Collector."

43. According to Rule 5 (1) of Rules,
1958, only such candidates who have
obtained
Patwari
or
Lekhpal
School
Certificate and whose names are in the list
mentioned in Rule 6 shall be eligible for
appointment to the service. So a candidate
to be eligible for appointment should
possess the Lekhpal School Certificate and
his name should also appear in the list
mentioned in Rule 6 of Rules, 1958.

44. Rule 6(1) of Rules, 1958
prescribes a form in which the list of
candidates who have passed the Patwari
or Lekhpal School Examination each
year shall be maintained. Under sub-rule
2,
the
necessary
material
for
the
maintenance of the list under Rule 6(1)
shall be supplied each year, as soon as
the examination results are out by the
Collector in whose district the Lekhpal
School is located. The Collector may
subject to the approval of the Director,
add the name of any candidate in the list
who has passed the Patwari or Lekhpal
School Examination.

45. Rule 6 (3) provides for the
method of arranging the names of
candidates. According to said rule, the
list shall be arranged in order of
seniority as determined by the year of
examination. The seniority between the
candidates of the same year shall be
judged on the basis of aggregate marks
obtained in the examination, and if
aggregate marks obtained by candidates
are
equal,
the
seniority
shall
be
determined on the basis of age.
12 All. U.P. Lekhpal Sangh & Ors. Vs. State of U.P. & Ors.
413

46. Rule 7(1) of the Rules, 1958
provides that the Assistant Collector shall
appoint alternatively the senior most
candidate from each of the two lists
maintained under Rule 6 on the post of
Lekhpal.

47. Now, at this stage, it would be apt
to reproduce the relevant rules of the U.P.
Manual to appreciate the scheme of
examination of U.P. Lekhpal School:-

213. Application for admission-(1)
The
following
procedure
should
be
followed for making selection of suitable
candidates for admission to the Lekhpal
Schools:

(i).