Manoj Kumar Bajpai & Ors. vs Uoi & The Secretary
2010 Latest Caselaw 1050 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI
+
                                WP(C ) No. 1131/2010


%                         Date of Decision: 23.02.2010


Manoj Kumar Bajpai & Ors.                     .... Petitioners
                   Through Mr. S.K. Sinha and Ms. Seema
                           Kashyap, Advocates


                                      Versus


UOI & the Secretary                                           .... Respondent
           Through                    Mr. Nawal Kishore Jha, Advocate


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.   Whether reporters of Local papers may be                       YES
     allowed to see the judgment?
2.   To be referred to the reporter or not?                          NO
3.   Whether the judgment should be reported in                      NO
     the Digest?



ANIL KUMAR, J.

The petitioners had sought directions from the Central

Administrative Tribunal, Principal Bench to the respondents to prepare

their appointment letters on notional basis to cover up old pension

scheme at par with Sh. C. Mukhopadhyay and to give them relaxation,

if any, required to be covered up under the old pension scheme and to

quash and set aside the order dated 14th June, 2007 which was

dismissed in Original Application no. OA 1989/2008 titled as Manoj

Kumar Bajpai & Ors. Vs. UOI through Secretary, Ministry of Civil

Aviation by order dated 10th September, 2009 and review application

R.A. No. 189/2009 was also dismissed by the Tribunal, Principal Bench

by order dated 14th October, 2009 which are challenged by the

petitioners in the present writ petition.

The petitioners were offered appointments on Group 'A' posts of

Airworthiness officers, however, their request to be covered under the

old pension scheme under CCS (Pension) Rules, 1972, which was valid

up till 31st December, 2003 was declined by order dated 14th June,

2007 as they were appointed after 1.1.2004. The petitioners had also

claimed relaxation so as to be covered under the old pension scheme

under CCS (Pension) Rules, 1972.

Learned counsel for the petitioners had referred to

communication dated 22nd October, 2003 offering the appointment to

the post of Airworthiness officers in Civil Aviation Department. The

offer for appointment to the post of Airworthiness Officers which was a

temporary post was subject to completion of necessary formalities such

as verification of character and antecedents by authorities, medical

examination by medical board etc.

It is admitted that the petitioners were appointed after 1st

January, 2004 as completion of formalities etc. took time and therefore,

they could be appointed only in January, 2004 and some of the

petitioners were appointed in February, and April, 2004.

Though the petitioners had been appointed after 1st January,

2004, however, they have sought pre-ponement of their appointment so

as to be covered under the old pension scheme under CCS(Pension)

Rules, 1972 on the ground that delay in appointing the applicants for

which offers were extended in October, 2003 is not attributable to them.

The time taken in appointment of the petitioners after offering

them the post of Airworthiness officer was stated to be attributable to

completion of various formalities and not on account of any undue

delay on the part of the respondents.

It was contended that by the time formalities were completed a

new scheme known as CPF Scheme had come into being w.e.f. 1st

January, 2004 and therefore, they cannot claim the benefit of old

scheme.

The Tribunal noted that the petitioners did not challenge the

scheme effected from 1st January, 2004 and the cut off date of policy

decision is 1st January, 2004. It was also noticed that the decision

cannot be termed to be irrational and could not be assailed by the

petitioners and relied on the decision of the Supreme Court in Council

of Scientific and Industrial Research Vs. Ramesh Chandra Agrawal,

(2009) 1 SCC (L&S) 547. The Tribunal also relied on State of

Uttaranchal Vs. Dinesh Kumar Sharma, (2007) 1 SCC (L&S) 594

holding that a selectee has no indefeasible right to appointment in

Government service on substantive basis and his appointment

commences only when he joins service.

The learned counsel for the petitioner cannot dispute that besides

completing the formalities for appointment, they had to be relieved by

their respective parent department and consequently, none of them

could be appointed prior to 1st January, 2004. This also cannot be

disputed by the petitioner that Mr. Mukhopadhyay was relieved and

was appointed prior to 1st January, 2004 and therefore, they cannot

seek parity with the case of Mr. Mukhopadhyay.

Learned counsel for the petitioner is also unable to show that

there is any provision for relaxation under the old scheme or exception

carved out under the new scheme. In any case, the petitioners do not

have right to get the relaxation to be covered under the old scheme nor

the decision of the respondents not to give any relaxation to the

petitioners can be faulted as neither there is any irrationality in not

granting any relaxation nor the petitioners have alleged any

discrimination.

The Supreme Court in (2007) 1 SCC (L&S) 594, State of

Uttaranchal & Another Vs. Dinesh Kumar Sharma had held that even if

a candidate is eligible for promotion when promotion post fell vacant at

an earlier date, his seniority should be reckoned only from the date of

his substantive appointment to the said vacant post under the Rules

and not retrospectively from the date of occurrence of vacancy.

In case of the petitioners though the offer of appointment was

made by letter dated 22nd October, 2003, however that was subject to

fulfillment of various formalities including verification of character and

antecedents by authorities and medical examination by the medical

board. In the circumstances, the appointment of the petitioners after 1st

January, 2004 cannot be attributed on account of any unintentional

delay or any other act imputable to the respondents. Since the

petitioners were appointed after 1st January, 2004, they cannot claim to

be covered up under the old pension scheme nor they are entitled for

any relaxation.

In the circumstances, the petitioners have failed to make out any

ground to impugn the order of the Tribunal dated 14th October, 2009,

nor any such illegality and irregularity in the order has been pointed

out, which will require interference by this Court in exercise of its

jurisdiction under Article 226 of the Constitution of India. The writ

petition, in the circumstances, is without any merit and is therefore

dismissed.

ANIL KUMAR, J.

FEBRUARY 23, 2010                              MOOL CHAND GARG, J.
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