Harjinder Singh vs State Of U.P. And 4 Others
2021 Latest Caselaw 7253 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 36
 

 
Case :- WRIT - A No. - 4703 of 2021
 
Petitioner :- Harjinder Singh
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Alok Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Heard Shri Alok Mishra, learned counsel for the petitioner and Shri Surya Bhan, learned Standing Counsel for the State respondents.

The petitioner is before this Court with request to issue direction to the respondent authorities to grant benefit of old pension scheme and other consequential benefits to him and to allot GPF account within some stipulated time. Further request is made to issue direction to the competent authority not to treat him as governed by newly defined Contributory Pension Scheme enforced with effect from 01.4.2005.

Learned counsel for the petitioner submits that the petitioner was applicant of the post of Assistant Professor against the advertisement No.31 dated 26.4.2002 published by the U.P. Higher Education Services Commission, Prayagraj and was selected finally by the Commission. The appointment letter was issued to him by the Manager, Meerut College, Meerut on 01.4.2005. In the meantime, a notification was issued by formulating a scheme of New Pension Scheme (NPS), wherein cut-off date was prescribed to provide the pension to the teachers and other employees of an institution recognized under the relevant provisions which were applicable to them. In the said notification, 01.04.2005 was the cut-off date for the grant of pension in regard to the teachers and other employees appointed in the institution.

Submission of learned counsel for the petitioner is that the selection process of the petitioner was initiated by the respondent - Commission in year 2002 i.e. much prior to issuance of notification fixing cut off date for applicability of the NPS. The delay in consideration is on the part of the respondents, therefore, the delay cannot be blamed and the petitioner cannot be ousted from the zone of consideration of the claim of Old Pension Scheme. He submits that a controversy arose before this Court in the case of Mahesh Narayan & Others Vs. State of U.P. & Others, passed in Writ-A No.55606 of 2008, which was finally decided vide judgment and order dated 19.12.2019 with the following direction :-

"From the perusal of judgments of Satyesh Kumar Mishra (Supra) and Firangi Prasad (Supra), there is no doubt on the point that similar dispute was before this Court in the matter of Satyesh Kumar Mishra (Supra), which was dismissed by this Court against which Special Appeal Defective No. 480 of 2016 is pending. It is also not disputed that legal issue involved in the matter of Satyesh Kumar Mishra (Supra) was also before Division Bench of this Court in the matter of Firangi Prasad (Supra) where the Court has clearly held that on the fault of appointing authority in issuing appointment letter, petitioners cannot be put any type of disadvantage. It appears that at the time of deciding the matter of Satyesh Kumar Mishra (Supra), judgement of Firangi Prasad (Supra) was not placed before this Court, therefore, without considering the same, decision was given in the matter of Satyesh Kumar Mishra (Supra). Under such facts and circumstances, judgement of Satyesh Kumar Mishra (Supra) is per incuriam and cannot be treated as precedent in the present case and will not come in the rescue of respondents.

The controversy and question of law involved in the present case is squarely covered with the judgement of Firangi Prasad (Supra) as well as other judgments relied upon by learned counsel for the petitioners and Courts have taken consistant view that respondents cannot by their inaction deprive a candidate to his legitimate right.

So far as facts of the case are concerned, there is no dispute on the point that pursuant to advertisement No. A-3/E-1/2000, advertisement was issued in news paper on 22.12.2000 and as per order of this Court dated 29.12.2001 passed in Special Appeal No. 485 (S/B) of 2001 (supra), there was no legal impediment in completition of recruitment process, but dut to inaction on the part of respondents, it was completed only after dismissal of writ petition on 05.07.2005. Final selected list of selected candidate was published in daily newspaper 'Dainik Jagran' dated 12.03.2006 and thereafter appointment letters were issued. It is also not disputed that in between again in subsequent advertisement No. A-3/E-1/2002, recruitment was completed and candidates had been granted appointment prior to 01.04.2005 and getting the benefit of 'Old Pension Scheme'.

Therefore, considering the facts and circumstances of the case and legal position discussed herein above, writ petition is partly allowed and petitioners are excluded from the effect and operation of Notification dated 28.03.2005 and 07.04.2005 as it is in violation of Article 14 of Constitution of India as well as law laid down by the Courts.

Respondents are directed to include the petitioners under 'Old Pension Scheme' as provided in Rules, 1961 before amendment and be given all other consequential benefits."

Learned counsel for the petitioner has also placed reliance on the order of this Court dated 23.3.2021 passed in Service Single No.8302 of 2021 (Dr. Abhishek Dutt Tripathi vs. State Of U.P. through Addl.Chief Secy.Higher Education & Ors) which was disposed of, relying upon the judgement passed in Mahesh Narayan's case (supra).

Learned counsel for the petitioner further submits that the petitioner has filed his application for consideration of his claim to include under the Old Pension Scheme before the respondent authorities on 10.8.2020, which is lying pending consideration and in case direction is issued for consideration of claim of the petitioner in the light of the judgment in Mahesh Narayan's case (supra), ends of justice would be met.

On the other hand, learned counsel for the respondents submitted that in case the claim setup by the petitioner in the writ petition is pending consideration before the respondents, appropriate reasoned speaking order shall be passed within a reasonable period.

I have considered the submission advanced by learned counsel for the parties and perused the material on record.

In the facts and circumstances, no useful purpose would be served in keeping the writ petition pending for consideration and without adverting on the merit of the case, the writ petition stands disposed of finally with the direction to the competent authority to decide the aforementioned representation of the petitioner strictly in accordance with law, as expeditiously as possible and preferably within two months from the date of production of a copy of this order.

In view of submissions advanced by learned counsel for the parties, the writ petition is finally disposed of with a direction to the competent authority to consider the claim of the petitioner for the grant of Old Pension Scheme in the light of the observation made in the judgment of Mahesh Narayan (Supra) and to take decision within a further period of two months from the date of production of certified copy of this order.

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

The concerned Authority/Official shall verify the authenticity of such computerised copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 8.7.2021

RKP