Allahabad High Court
Pritam vs State Of U.P. on 19 July, 2021
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 34
Case :- WRIT - A No. - 7772 of 2021
Petitioner :- Pritam
Respondent :- State of U.P.
Counsel for Petitioner :- Gautam
Hon'ble Yashwant Varma,J.
Heard learned counsel for parties.
This petition has been preferred seeking the following relief:-
"I) To issue a writ order or direction in the nature of mandamus directing the Respondent Authorities to grant the Pensionary benefits to the Petitioner under the Old Pension Scheme effective upto 31.03.2005.
ii) To issue a writ order or direction in the nature of mandamus directing the Respondent Authorities to treat the Petitioner as Senior to the Respondent No.6 under the Seniority list for the Post of Clerk in the College Shambhu Dayal Post Graduate College, Ghaziabad."
The first relief is in respect of the petitioner being extended the benefits of the Old Pension Scheme. The aforesaid relief is sought on the basis that since the appointment of the petitioner was approved by the competent authority on 11 February 2005 and thus prior to 01 April 2005 i.e. the date when the New Pension Scheme came into force, the petitioner would be entitled to be extended the benefits of the Old Pension Scheme.
However, on facts which are admitted and on which there is no dispute, it is evident that although the appointment of the petitioner was approved on 11 February 2005, the appointment order came to be issued only on 30 September 2005. It is thus manifest that the petitioner came to be appointed and joined the post after 01 April 2005. It becomes pertinent to note that the order approving his appointment cannot be viewed or considered to be one which makes the petitioner a member of the concerned cadre or service. The petitioner entered service only on 30 September 2005. Prior to that date, he was not borne in the cadre. It is the date of appointment which would be relevant and determinative for the purposes of considering the prayer for extension of benefits under the Old Pension Scheme.
The reliance placed by learned counsel for the petitioner on the judgments rendered by the Division Bench of the Court in State of U.P. through Finance Secretary (General) and 2 others Vs. Kamlesh Kumar Sonkar and another [Special Appeal Defective No.116 of 2021] and in State of U.P. and 2 others Vs. Mahesh Narayan and 2 others [Special Appeal Defective No.117 of 2021], does not come to the aid of the petitioner for the reason that in both those matters, the appellants came to be appointed on 30 March 2005. They were denied the benefits of the Old Pension Scheme solely on the ground that they were permitted to join after 01 April 2005.
Dealing with the issue of extension of the benefits of the Old Pension Scheme and the date which would be determinative, this Court in Ravi Raj And Others Vs. State of U.P. and Others [2020 (3) ADJ 408], held thus:-
"The Court additionally notes that the provisions of Rule 2(3) of the 1961 Rules are not 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. The mere fact that the process of recruitment was initiated prior thereto can be of no assistance to their cause of being governed by the Old Pension Scheme.
The Court also bears in mind the decision of the Division Bench of this Court in Roop Chandra where it was held that a stipulation contained in an appointment order cannot be assailed or questioned after its acceptance. As noticed in the earlier part of this judgment the appointment letter of the petitioners had clearly stipulated that their appointment was to come into force upon their joining. It did not stipulate the appointment coming into effect from some retroactive date. That prescription in the order of appointment was duly accepted without demur or protest. It is not permissible for the petitioners to now and at this point of time to renege from that concession.
..."
A similar view has been expressed by a Division Bench of this Court in Janardan Rai and other Vs. State of U.P. and other [2018 SCC OnLine All 3419] where it was held as follows:-
"15. In the present case the appellants-petitioners acquired the eligibility after they completed the Special B.T.C. Course and thereafter they were appointed some time in November 2005. The New Pension Scheme and the amended provisions of the G.P.F. (Uttar Pradesh) Rules 2005, came into force w.e.f. 07.04.2005. Therefore, as on the date of appointment of the appellants-petitioners as Assistant Teacher in December 2005, Old Pension Scheme or the unamended G.P.F. Rules were not in existence rather the New Pension Scheme and the amended G.P.F. Rules were applicable. Therefore, the appellants-petitioners are not entitled for the benefit of Old Pension Scheme or the unamended provisions of G.P.F. Rules. "
In view thereof, the Court finds no ground to grant the first relief in light of the facts which are undisputed and admitted.
Insofar as the second relief is concerned, that relates to the inter se seniority between the petitioner and the sixth respondent. The Court leaves it open to the petitioner to approach the competent authority for considering his grievance which is raised in this petition by way of a representation in the first instance. It is further observed that the competent authority shall proceed in the matter with due notice to the sixth respondent. All contentions of respective parties in respect of the issue of seniority, are left open.
The writ petition shall stand disposed of on the aforesaid terms.
Order Date :- 19.7.2021
Vivek Kr.
