State Of U.P. And 2 Others vs Mahesh Narain And 2 Others
2021 Latest Caselaw 2603 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 40
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 117 of 2021
 

 
Appellant :- State Of U.P. And 2 Others
 
Respondent :- Mahesh Narain And 2 Others
 
Counsel for Appellant :- Anand Kumar Ray
 
Counsel for Respondent :- Siddharth Khare
 

 
Hon'ble Munishwar Nath Bhandari,J.

Hon'ble Rohit Ranjan Agarwal,J.

Order on Delay Condonation Application No.1 of 2021

An application has been filed for condonation of delay.

Since contest to the application has not been made, it is allowed.

The delay is condoned.

Order on Appeal

By this appeal, a challenge is made to the judgment dated 19.12.2019 whereby the writ petition preferred by the non-appellants was allowed.

The case has checkered history inasmuch as the appellant-Irrigation Department sent a requisition for the post of Junior Engineer (Civil) to the Public Service Commission on 20.10.1999. It was for 954 posts. Pursuant to the requisition, an advertisement was issued on 22.12.2000 with last date for submission of application by 27.01.2001. The written examination for it was held on 22.12.2001. The delay in finalization of the selection occurred on account of a stay in the Writ Petition No. 7062 (S/S) of 2001(Pramod Kumar Gupta vs. Public Service Commission U.P. Allahabad and others). The interim order was passed by the learned Single Judge on 18.12.2001, though made limited to those who were affected by the writ petition. The direction was however, that if the result for remaining is declared, it would be provisional.

In the light of aforesaid, the Public Service Commission did not declare the result till disposal of the writ petition. The petition therein was dismissed after modification of the interim order in Special Appeal No. 485 (S/B) of 2001 (U.P. Public Service Commission vs. State of U.P. and others).

On dismissal of the writ petition on 05.07.2005, result of the written test was declared on 05.10.2005 and those who qualified in the written examination, were called for the interview held between 21.11.2005 to 12.0.2006. The final select list was published on 12.03.2006 followed by the appointment letter dated 14.06.2006.

The controversy raised by the non-appellants was as to whether they should be governed by the Old Pension Scheme or by New Pension Scheme. It is looking to the fact that pursuant to a notification issued by the State of U.P., a New Pension Scheme came with effect from 01.04.2005. The consequence of the aforesaid was that whoever is appointed subsequent to 01.04.2005 is to be governed by New Pension Scheme. If the case is considered simplicitor then those appointed subsequent to 01.04.2005 would be governed by the New Pension Scheme but this case has peculiarity.

It is in view of the fact that while the selection pursuant to the advertisement dated 22.12.2000 remain pending due to the interim order in the writ petition, the appellants-Public Service Commission invited application for the same post of Junior Engineer (Civil), Irrigation Department during the intervening period and pursuant to it even appointments were also given prior to 01.04.2005.

Even the aforesaid would not have consequence on the appellant-State but looking to the Rule position pursuant to the U.P. Government Servant Seniority Rules, 1991 (in short the "Rules of 1991") has a consequence. Rule-5 of of Rules of 1991 is quoted here under for ready reference :

"5. Seniority where appointments by direct recruitment only. - Where according to the service rules appointments are to be made only by the direct recruitment the seniority inter se of the persons appointed on the result of any one selection, shall be the same as it is shown in the merit list prepared by the Commission or the Committee, as the case may be :

Provided that a candidate recruited directly may lose his seniority, if he fails to join without valid reasons when vacancy is offered to him, the decision of the appointing authority as to the validity of reasons, shall be final :

Provided further that the persons appointed on the result of a subsequent selection shall be junior to the persons appointed on the result of a previous selection.

Explanation. - Where in the same year, separate selections for regular and emergency recruitment, are made, the selection for regular recruitment shall be deemed to be the previous selection."

Proviso to Rule-5 of Rules of 1991 provides that the person selected and appointed pursuant to the subsequent selection shall be junior to the person appointed on the result of previous selection. By virtue of the proviso to Rule 5, it cannot be disputed that petitioner-non appellant being selected under the previous selection would be ranked senior to those selected pursuant to subsequent selection. That being the position, the petitioner-non appellant, despite being senior, would be deprived to govern by Old Pension Scheme only for the reason that due to an interim order passed by this Court, there was delay in declaration of results followed by appointment. In the present case, on selection pursuant to the notification dated 22.12.2000, the appellant-State could have denied the benefit of Old Pension Scheme for those appointed after 01.04.2005 but senior cannot be denied the benefit equivalent to a person junior to him because pursuant to subsequent selection, appointments were given prior to 01.01.2005 but in view of the proviso to Rule 5, they would ranked junior.

The issue aforesaid has been factually discussed by the learned Single Judge by referring to the judgment of this Court in the case of Satyesh Kumar Mishra and others vs. State of U.P. and others, 2016(6) ADJ 808 (LB) and so as the judgment of Delhi High Court in the case of Naveen Kumar Jha vs. Union of India and others, decided on 02.11.2012. Para 3 to 16 of the said judgment are quoted hereunder:

"3. The Staff Selection Commission invited applications to fill up posts of Sub-Inspector in Central Para Military Forces and titled the selection process as ,,SSC Combined Graduate Level 2000‟. The petitioner applied and took the examination. He cleared the written examination as also the Physical Efficiency Test.

4. Required to appear before a Medical Board for fitness to be ascertained, the petitioner was declared medically unfit as per medical examination conducted on February 04, 2002. Since the procedures of the law entitled the petitioner to seek a re-medical examination by being brought before a Review Medical Board and for which he had to file an appeal within 30 days of unfitness being intimated, on February 25, 2002 the petitioner submitted the necessary appeal. Unfortunately, for him he heard nothing from the respondents on the subject i.e. the date and the place where petitioner was required to be present to be re-examined by the Review Medical Board and in the meanwhile the candidature of others was processed. It was only on January 18, 2003 that the petitioner was intimated to be present before the Review Medical Board and the petitioner duly presented himself before the Board and upon examination was declared fit. By March 2003 others who were successful had joined the respective Para Military Force to which they were allocated to. The petitioner was called for interview on July 2003 and thereafter having cleared the interview was issued letter offering appointment as a Sub-Inspector in CRPF in April 2004. The petitioner thereafter successfully completed the induction training and was attached to the 72nd Bn.CRPF.

5. The problem which the petitioner has highlighted is of not only being placed junior to the entire batch which joined CRPF pursuant to the SSC Combined Graduate Level 2000 Examination but even junior to those who took the SSC Combined Graduate Level 2001 and SSC Combined Graduate Level Examinations held thereafter; the petitioner being placed at the top of the list of the 2004 year batch.

6. This has affected the petitioner adversely because Sub- Inspectors of his batch have earned promotions to the rank of Inspector and are being considered for further promotion to the post of Assistant Commandant.

7. Though the petitioner has earned promotion to the post of Inspector but even in said rank has lost out in seniority and right to be considered along with his batchmates for promotion to the post of Assistant Commandant.

8. Another injury suffered by the petitioner is the change in the policy of the Central Government to do away with old Pension Scheme which automatically made eligible all those who joined Central Government prior to December 31, 2003. The petitioner has been held entitled to the new Pension Scheme.

9. With respect to the Pension Scheme it assumes importance to note that petitioner‟s batchmates were issued letters offering appointment in March 2003 and had petitioner likewise been issued a letter offering appointment, he too would have been a member of the old Pension Scheme. As a result of petitioner being offered employment in April 2004, he has perforce been made a member of the new Pension Scheme.

10. On the subject of delay in conducting Review Medical Boards, in the decision dated May 26, 2011 deciding WP(C) No.5400/2010 Avinash Singh vs. UOI & Ors., a Division Bench of this Court held, in para 17 to 20 as under:-

"17. It is settled law that if appointment is by selection, seniority of the entire batch has to be reckoned with respect to the merit position obtained in the selection and not on the fortuitous circumstance on the date on which a person is made to join.

18. We highlight in the instant case the fortuitous circumstance of the petitioners being made to join as Assistant Commandant on 08.08.2005 is not the result of anything created by the petitioners but is a result of a supine indifference and negligence on the part of the ITBP officials.

19. Thus, petitioners would be entitled to their seniority as Assistant Commandant with respect to their batch-mates in the context of the merit position in the select panel. We make it clear, the seniority as Assistant Commandant of the entire batch would be a reflection of the merit position in the select list and not the date of joining.

20. It is trite that where a thing is deemed to come into existence everything which logically flows therefrom has to be followed and the imagination cannot boggle down. In other words, the effect of the petitioners‟ seniority being reckoned with reference to the select panel would mean that the petitioners would come at par with their brethren who joined on 02.11.2004. Since their brethren were granted 1 year qualifying service relaxation, petitioners would be entitled to the same benefit and additionally for the reason the next below rule requires that if a person junior in the seniority position acquires the necessary qualifying service, the person above has also to be considered for promotion."

11. On facts it needs to be noted that the seven petitioners of WP(C) No.5400/2010 had lost out on their seniority with reference to their merit position in the Select List due to delay in conducting their Review Medical Evaluation and in the interregnum their batchmates had joined ITBP.

12. On parity of reasoning and application of law the petitioner is held entitled to his seniority being refixed as a Sub-Inspector in CRPF with reference to his merit position at the SSC Combined Graduate Level 2000 Examination i.e. those who joined CRPF pursuant to the said examination in March 2003. The petitioner has already earned promotion to the post of Inspector and accordingly we direct that he would be entitled to seniority refixed in said rank with reference to his revised seniority position in the rank of Sub-Inspector, and this would mean that the petitioner would be considered for promotion to the post of Assistant Commandant as per the revised seniority list.

13. The respondents are therefore directed to revise the seniority position of the petitioner in the two ranks within a period of four weeks from today and thereafter consider the petitioner along with other eligible persons for promotion to the post of Assistant Commandant.

14. As regards wages, on the principle of not having shouldered responsibility for the higher post, we do not direct backwages to be paid.

15. On the subject of the petitioner being entitled to the old Pension Scheme, in similar circumstances, deciding WP(C) No.10028/2009 Amrendra Kumar vs. UOI & Ors., where the petitioner therein was also similarly deprived the opportunity to join with his batch on account of delay in conducting medical re-examination, the Court had directed that said writ petitioner would be entitled to the benefit of the old Pension Scheme which remained in force till December 31, 2003.

16. The petitioner would be entitled to similar benefit and accordingly the next mandamus issued is by way of a direction to the respondents to treat the petitioner as a member of the pension scheme which remained in vogue till December 31, 2003."

In the same manner, the judgment of Delhi High Court in the case of Government of National Capital Territory of Delhi vs. Ajay Kumar and others in Writ (C) No. 838 of 2016 dated 13.09.2018 is material. The relevant para are quoted here under:

" The grievance of the Government of National Capital Territory of Delhi (GNCTD) in these two petitions is that Central Administrative Tribunal (CAT) granted relief to the respondents, who claimed benefit of per-revised pension scheme applicable to class of service they belonged to. It is a common ground of both the parties that the previously existing scheme- i.e. before 01.01.2004, entitled public servants to a monthly pension and other attendant terminal pension prescribed under the CCS (Pension) Rules, 1972 for payment of gratuity which was subsequently amended. The rationale for grant of relief by the impugned order was that the applicants (who were respondent in this case) had issued an advertisement through Delhi Subordinate Services Selection Board (DSSSB) in the year 2002 for various classes of posts. Common merit list was drawn pursuant to the recruitment process - sometime in 2003. Concededly, some of the applicants though senior and higher in the merit list were not issued appointment letter as they did not belong to the reserved communities in GNCTD. Subsequently, controversy arose whether status claimed by the Scheduled Caste/Scheduled Tribe (SC/ST) could be given to them since they did not belong to GNCTD and in some instances castes were not notified in GNCTD. Eventually, they were issued appointment letters but after 01.01.2004. The controversy as to whether they were entitled to be treated as SC/ST was resolved by Full Bench of this Court in Deepak Kumar & Ors. vs. District and Sessions Judge, Delhi & Ors., (2012) 132 DRJ (FB) and recently by a Constitution Bench in Bir Singh vs. Delhi Jal Board, 2018 SCC Online SC 1241.

The denial of parity with their juniors/batchmates vis-a-vis applicability of old pension scheme became the subject matter of proceedings before CAT where they were successful. Learned counsel for the GNCTD urges that CAT's decision- which has relied upon previous judgment of this Court ought to be set aside since so called juniors/batchmates were in fact appointees prior to the applicants. It is contended that since the appointment of the applicants took place after the appointed date i.e. 01.01.2004; they could not claim any benefit to prescribed individual pension rule. Learned counsel relied upon a decision of Division Bench in Ashok Mudgal vs. Govt. Of NCT of Delhi & Ors., 2010 SCC Online Del 2357-W.P. (C) 12246/2009 (decided on 14.07.2010).

This Court is of the opinion that the present writ petitions are without merit. The very same issue which is sought to be agitated by the GNCTD was subject matter of two Division Bench judgment in Naveen Kumar Jha v. Union of India and others, 2012 SCC Online Delhi 5606 (W.P.(C) No. 3827 of 2012) decided on 02.11.2012 and Ajit Kumar Choudhary vs. Union of India & others, W.P. (C) 4496/2014 decided on 21.07.2017. In Naveen Kumar Jha (supra), the Court firstly granted the benefit of seniority on the basis of common merit-list published by the recruitment agency even though the individual was appointee of later date after 01.01.2004. The Court also held that the old pension scheme would apply, on the ground that the petitioner "was deprived the opportunity to join to his batch on account of delay in conducting the medical re-examination". Likewise, in Ajit Kumar Choudhary (supra), this Court held that the "department's position was illogical and irrational given that the petitioners have been granted seniority and granted parity from their date of actual joining. Their specific grievance was denial of the old pension scheme which was specifically referred to in the final order of this Court. The refusal to grant the old pension scheme is untenable in law."

Accordingly, we do not find any reason to cause interference in the impugned judgment of the learned Single Judge. It is more so when the learned Single Judge has considered all the judgments on the subject matter.

In the light of the aforesaid, we find peculiarity in the case as denial of benefit of the Old Pension Scheme to the appellant would be vis a vis their junior as per Rule-5 of the Rules of 1991.

Accordingly, the appeal is dismissed. It is however, made clear that this judgment and for that judgment of learned Single Judge would not govern appointment made after 01.04.2005 without any peculiarity of the nature involved herein. It may be even if selection therein was initiated on or prior to 01.04.2005. The date of appointment be relevant for that.

Order Date :- 19.2.2021

Ashish Pd.