Page No.# 1/14 vs The Union Of India And 4 Ors
2025 Latest Caselaw 8727 Gua

Gauhati High Court

Page No.# 1/14 vs The Union Of India And 4 Ors on 20 November, 2025

                                                                Page No.# 1/14

GAHC010156622023




                                                           2025:GAU-AS:15802

                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/4193/2023

         MD. SAJID HUSSAIN AND 3 ORS
         S/O LATE TAZAMUL HUSSAIN, R/O NOBOJYOTI PATH, NALIAPOOL, P.O.,
         P.S. AND DIST- DIBRUGARH, PIN-786001, ASSAM

         2: MD. HASIBUR RAHMAN
          S/O LATE WALIUR RAHMAN
          R/O NEAR DIBRU COLLEGE
          BAIRAGIMATH
          P.O.-C.R. BUILDING
          PIN-786003
          DIBRUGARH
         ASSAM

         3: JUGAL KISHORE SAIKIA
          S/O LATE CHANDRA NATH SAIKIA
          BHUGALI PATHER VILLAGE
          P.O.-TINTHENGIA
          DIST- DIBRUGARH
          PIN-785675
         ASSAM

         4: PRASANTA GOGOI
          S/O LATE SARBESWAR GOGOI
          BONDA GAON
          P.O.-BONDA
          NARANGI
          GUWAHATI
          PIN-781026
          KAMRUP (M)
         ASSA

         VERSUS

         THE UNION OF INDIA AND 4 ORS
                                                                             Page No.# 2/14

            REPRESENTED BY THE SECRETARY, MINISTRY OF PERSONNEL, PUBLIC
            GRIEVANCES AND PENSIONS, DEPARTMENT OF PENSION AND
            PENSIONERS WELFARE, DEPARTMENT OF PERSONNEL AND TRAINING,
            MINISTRY OF PERSONNEL, P G AND PENSIONS GOVERNMENT OF INDIA,
            NORTH BLOCK, NEW DELHI-110

            2:THE ASSAM ELECTRICITY GRID CORPORATION LIMITED
             IN SHORT AEGCL
             REPRESENTED BY ITS MANAGING DIRECTOR
            AEGCL
             BIJULEE BHAWAN
             PALTAN BAZAR
             GUWAHATI-781001
             KAMRUP (M)
            ASSAM

            3:THE MANAGING DIRECTOR
            AEGCL
             BIJULEE BHAWAN
             PALTAN BAZAR
             GUWAHATI-781001
             KAMRUP (M)
            ASSAM

            4:THE CHIEF GENERAL MANAGER (F AND A)
            AEGCL
             BIJULEE BHAWAN
             PALTAN BAZAR
             GUWAHATI-781001
             KAMRUP (M)
            ASSAM

            5:THE GENERAL MANAGER (GM
             HR)
            AEGCL
             BIJULEE BHAWAN
             PALTAN BAZAR
             GUWAHATI-781001
             KAMRUP (M)
            ASSA

Advocate for the Petitioner   : MR. U K NAIR, MR. Y S MANNAN (P- 1,3,4),MR. M P
SARMA,MR D KALITA

Advocate for the Respondent : DY.S.G.I., SC, AEGCL
                                                                           Page No.# 3/14


                                  :::BEFORE:::
                  HON'BLE MR. JUSTICE KARDAK ETE

             Date on which judgment is reserved       : N/A
             Date of pronouncement of judgment        : 20.11.2025
             Whether the pronouncement is of
             the operative of the judgment?           : No
             Whether the full judgment has been
             pronounced?                              : Yes


                         JUDGMENT & ORDER (ORAL)

Heard Mr. Y. S. Mannan, learned counsel for the petitioner. Also heard Mr. S. Kataki, learned Standing Counsel, AEGCL for respondents No. 2, 3, 4 & 5. None appeared for the respondent No. 1.

2. Challenge made in this petition is to the Office Order dated 01.03.2023, issued by the General Manager (HR), i/c, AEGCL, whereby, the claim of the petitioners for coverage under the Old Pension Scheme (OPS) has been rejected. The petitioners have also prayed for a direction to the respondent authorities to implement the Office Memorandum dated 03.03.2023, issued by the Additional Secretary, Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Pensions and Pensioners Welfare, whereby a decision has been taken to provide one-time option to opt for the coverage under the CCS(Pension) Rules, 1972 (now 2021) to those employees who have been appointed against posts or vacancies which were advertised/notified for recruitment/ appointment prior to the date of notification Page No.# 4/14

for National Pension System, i.e. 22.12.2003, and is covered under the National Pension System on joining service on or after 01.01.2004.

3. The petitioners were appointed as Junior Engineers on 28.12.2004 in the Assam Power Generating Corporation Limited and Assam Electricity Grid Corporation Limited pursuant to an advertisement dated 31.01.2001. It is the contention of the petitioners that after completion of 1 (one) year in their services, their GPF accounts were opened and monthly contributions were deducted up to the year 2008 and thereafter the respondent authorities stopped deducting their contribution to the GPF Fund. The Government of Assam introduced the New Pension Rules for its employees by issuing an order dated 25.01.2005 providing that the fresh recruits joining the service of the State Government on or after 01.02.2005 shall be governed by the New Pension Scheme. Subsequently, vide Office Memorandum dated 26.02.2008, the respondent authorities have decided to implement the Defined Contributory Pension Scheme in respect of the petitioners, by bringing them under the New Pension Scheme.

4. Being aggrieved, the petitioner approached this Court by filing a writ petition, being WP(C) No. 6345/2022, which was disposed of on 26.09.2022 with a direction to the respondent authorities to examine the claim of the petitioners and pass appropriate orders. Pursuant thereto, vide the impugned order dated 01.03.2023, the respondent authorities has held that the AEGCL, being a company incorporated under the Companies Act, 1956, is an independent entity and the State Government Rules and Regulation are not applicable to it and since the petitioners have joined their services after 01.01.2004, they could not be brought under the Old Pension Scheme under Page No.# 5/14

CCS(Pension) Rules, 1972 and thereby rejected the claim of the petitioners.

5. Mr. Y. S. Mannan, learned counsel for the petitioners, submits that the petitioners were appointed against vacancies which were advertised on 31.01.2001 and the selection process had concluded in the month of December, 2004. The other persons, who were appointed to other post advertised with same Employment Notice dated 31.01.2001, were extended the benefit of Old Pension Scheme, but the petitioners have been denied.

6. By referring to the Office Memorandum dated 03.03.2023, issued by the Additional Secretary, Govt. of India, Ministry of Personnel, Public Grievances and Pensions, Department of Pensions and Pensioners Welfare, as regard providing the benefit under CCS (Pension) Rules in place of New Pension System to those Central Government Employees who were recruited against the post/vacancies advertised/notified for recruitment on or before 22.12.2003, he submits that the petitioners fulfils the conditions as stipulated in the said Office Memorandum dated 03.03.2023 and therefore, the respondent authorities in the AEGCL are bound to implement the Office Memorandum dated 03.03.2023 in respect of the petitioners as the respondent authorities follows the C.C.S Pension Rules for its employees. However the respondent authorities have not taken steps to adopt or implement the said Office Memorandum dated 03.03.2023 in respect of the petitioners. Therefore, while not pressing the issue of the application of the Assam Pension Rules, Mr. Y. S. Mannan, learned counsel, fairly submits that the respondent authorities may be directed to implement the Office Memorandum dated 03.03.2023 in respect of the petitioners and provide them a one-time option to be covered under CCS(Pension) Rules, 1972.

7. Mr. S. Kataki, learned Standing Counsel for the AEGCL, submits that the Page No.# 6/14

appointment letters issued to the petitioners clearly stipulated that they would be under the New Pension Scheme to be notified in due course. The New Pension Scheme was made effective in AEGCL with effect from 01.01.2004 vide Office Memorandum dated 26.02.2008. Accordingly, the accumulated amounts in respect of GPF accounts of the petitioners were transferred to their respective New Pension Scheme account.

8. He submits that even before bifurcation of erstwhile Assam State Electricity Board, the Assam Pension Rule was no applicable to the employees of the Board. The respondent No. 2, being a company incorporated under the Companies Act, is an independent entity from the State Government and as such, the Rules and Regulations of the State Government are not applicable. The Assam State Electricity Board and its successor companies have been following only five items of the CCS (Pension) Rules, 1972 for the purpose of settlement of pension cases for its employees who had join prior to 01.04.2004.

9. He submits that the Board of Director, in its meeting dated 12.02.2008, adopted a resolution approving implementation of the New Re-structured Defined Contribution Pension System in line with the principle adopted by the Government of India vide notification dated 22.12.2003, which were made effective from 01.01.2004. The petitioners, having been appointed and joined in the service after 01.01.2004 are not covered by Old Pension System, but are governed under the New Pension Scheme.

10. Having regard to the Office Memorandum dated 03.03.2023, issued by the Additional Secretary to the Government of India, particularly with regard to granting one time option to the Central Government Employees who were appointed against the post/vacancies which is advertised/notified for Page No.# 7/14

recruitment/ appointment prior to the date of notification for New Pension Scheme on joining the service on or after 0101.2004, Mr. Kataki, learned Standing Counsel, submits that being an independent entity, the respondent No. 2 and the Board of Directors have power and authority to frame and adopt any Rules/Office Memorandum of the State or Central Government. He submits that being an independent entity, the respondent No. 2 has to act in consonance with its financial position. Each and every decision of the Central Government in respect of New Pension Scheme is not binding on the respondent No. 2. The Board of Directors by its resolution dated 12.02.2008, approved and adopted the New Re-structured Defined Contribution Pension System in line with the principle of Government of India notification dated 22.12.2003. Therefore, he submits that the Defined Contribution Pension System of respondent No. 2 was in line with principle of Government of India notification dated 22.12.2003 and the Office Memorandum dated 03.03.2023, having been issued only for the Central Government Employees, would not be binding on the respondent No. 2 and as such, the petitioners are not entitled to be covered under Old Pension Scheme, rather shall be governed by the New Pension Scheme.

11. Mr. Kataki, learned counsel, has placed reliance on the judgment of Hon'ble Supreme Court in the case of M/S New Bihar Biri Leaves Co. & Ors. Vs. State of Bihar & Ors., reported in (1981) 1 SCC 537, to submit that if a person of his own accord, accepts a contract on certain terms and works out the contract, he cannot be allowed to adhere to and abide by some of the terms of the contract which proved advantageous to him and repudiate the other terms of the same contract which might be disadvantageous to him. He accordingly relied on paragraph No. 48 of the judgment, which is reproduced herein below:

Page No.# 8/14

"48. It is a fundamental principle of general application that if a person of his own accord, accepts a contract on certain terms and works out the contract, he cannot be allowed to adhere to and abide by some of the terms of the contract which proved advantageous to him and repudiate the other terms of the same contract which might be disadvantageous to him. The maxim is qui approbat non reprobat, (one who approbates cannot reprobate). This principle, though originally borrowed from Scots Law, is now firmly embodied in English Common Law. According to it, a party to an instrument or transaction cannot take advantage of one part of a document or transaction and reject the rest. That is to say, no party can accept and reject the same instrument or transaction (Per Scrutton L.J. Verschures Creameries, Ltd. v. Hull & Netherlands Steamship Co.; See Douglas Menzies v. Umphelby; See also Stroud's Judicial Dictionary, Vol. I, page 169, 3rd Edn.)."

12. I have considered the submissions of learned counsel for the parties and also perused the materials available on record.

13. Admittedly, the petitioners were appointed as Junior Engineers in the Assam Power Generating Corporation Limited and Assam Electricity Grid Corporation Limited on 28.12.2024 pursuant to the advertisement dated 31.01.2001, and are presently serving under the Assam Electricity Grid Corporation Limited. In terms of the notification dated 22.12.2003, which introduced a New Pension Scheme w.e.f. 01.01.2004, the petitioners, ordinarily would not be covered by Old pension Scheme. The respondent No. 2, being a Company incorporated under the Companies Act, 1956, no doubt, is a separate entity and has been following the provisions of the CCS (Pension) Rules, 1972. Therefore, the pension rules and schemes of the State Government cannot be insisted to be applicable to the employees of the respondent No. 2.

14. Although the initial grievance of the petitioners was to place them under Old Pension Scheme in terms of the Assam Pension Rules on the ground that the advertisement and written examination were conducted prior to the coming into force of the New Pension Scheme, despite their appointment occurring after Page No.# 9/14

01.01.2004, as fairly submitted by Mr. Mannan, learned counsel for the petitioner, that the grievance is now confined to implementation of the Office Memorandum dated 03.03.2023, wherein it provides for grant of one time option for those Central Government Employees where the employees who have been appointed against the post or vacancy which was advertised for recruitment prior to the date of notification for National Pension Scheme, i.e. 22.12.2003, and is covered under the National Pension Scheme on joining service on or after 01.01.2004.

15. For better appreciation, the Office Memorandum dated 03.03.2023 is reproduced herein under:

"OFFICE MEMORANDUM

Subject: Coverage under Central Civil Services (Pension) Rules, in place of National Pension System, of those Central Government employees who were recruited against the posts/vacancies advertised /notified for recruitment, on or before 22.12.2003.

The undersigned is directed to say that consequent on introduction of National Pension System (NPS) vide Ministry of Finance (Department of Economic Affairs) Notification No. 5/7/2003-ECB & PR dated 22.12.2003, all Government servants appointed on or after 01.01.2004 to the posts in the Central Government service (except armed forces) are mandatorily covered under the said scheme. The Central Civil Services (Pension) Rules, 1972 and other connected rules were also amended vide Notification dated 30.12.2003 and, after the said amendment, those rules are not applicable to the Government servants appointed to Government service after 31.12.2003.

2. Subsequently, Department of Pension and Pensioners Welfare in consultation with the Department of Personnel & Training, Department of Expenditure and Department of Legal Affairs in the light of the various representations/references and decisions of Hon'ble Courts, issued instructions vide OM No. 57/04/2019-P&PW(B) dated 17.02.2020 giving one time option to Central Government employees who were declared successful for recruitment in the results declared on or before 31.12.2003 against vacancies which occurred before 01.01.2004 and were covered under the National Pension System on joining service on or after 01.01.2004, to be covered Page No.# 10/14

under the CCS(Pension) Rules, 1972 (now 2021). There was fixed time schedule for different activities under the aforesaid OM dated 17.02.2020.

3. Representations have been received in this Department from the Government servants appointed on or after 01.01.2004 requesting for extending the benefit of the pension scheme under Central Civil Services (Pension) Rules, 1972 (now 2021) on the ground that their appointment was made against the posts/vacancies advertised/notified for recruitment prior to notification for National Pension System, referring to court judgments of various Hon'ble High Courts and Hon'ble Central Administrative Tribunals allowing such benefits to applicants.

4. The matter has been examined in consultation with the Department of Financial Services, Department of Personnel & Training, Department of Expenditure and Department of Legal Affairs in the light of the various representations/references and decisions of the Courts in this regard. It has now been decided that, in all cases where the Central Government civil employee has been appointed against a post or vacancy which was advertised/notified for recruitment/appointment, prior to the date of notification for National Pension System ie. 22.12.2003 and is covered under the National Pension System on joining service on or after 01.01.2004, may be given a one-time option to be covered under the CCS(Pension) Rules, 1972 (now 2021). This option may be exercised by the concerned Government servants latest by 31.08.2023.

5. Those Government servants who are eligible to exercise option in accordance with para-4 above, but who do not exercise this option by the stipulated date, shall continue to be covered by the National Pension System.

6. The option once exercised shall be final.

7. The matter regarding coverage under the CCS (Pension) Rules, 1972 (now 2021), based on the option exercised by the Government servant, shall be placed before the Appointing Authority of the posts for which such option is being exercised for consideration, in accordance with these instructions. In case the Government servant fulfills the conditions for coverage under the CCS (Pension) Rules, 1972 (now 2021), in accordance with these instructions, necessary order in this regard shall be issued latest by 31 October, 2023. The NPS account of such Government servants shall, consequently, be closed w.e.f. 31 December, 2023.

8. The Government servants who exercise option to switch over to the pension scheme under CCS (Pension) Rules, 1972 (now 2021), shall be required to subscribe to the General Provident Fund (GPF). Regarding accountal of the corpus in the NPS account of the Government servant, Controller General of Accounts (CGA) has Page No.# 11/14

furnished the following clarification vide letter No. 1(7)(2)/2010/cla/TA III/390 dated 14.11.2019 & I.D. Note No. TA-3-6/3/2020-TA-III/cs-4308/450 dated 23.12.2022:

i. Adjustment of Employees' contribution in Accounts: Amount may be credited to individual's GPF account and the account may be recasted permitting up-to- date interest (Authority-FR-16 & Rule 11 of GPF Rules).

ii. Adjustment of Government contribution under NPS in Accounts: To be accounted for as (-) Dr. to object head 70 Deduct Recoveries under Major Head 2071 Pension and other Retirement benefit Minor Head 911- Deduct Recoveries of over payment (GAR 35 and para 3.10 of List of Major and Minor Heads of Accounts).

iii. Adjustment of increased value of subscription on account of appreciation of Investments May be accounted for by crediting the amount to Govt. account under M.H. 0071- Contribution towards Pension and Other Retirements Benefits 800-Other Receipts (Note under the above Head in LMMHA).

9. All Ministries/Departments are requested to give wide publicity to these orders without fall. The cases of those Government servants who fulfill the conditions mentioned in this O.M. and who exercise option to switch over to the pension scheme under CCS (Pension) Rules, 1972 (now 2021) may be settled by the administrative Ministries/Departments in accordance with these orders.

10. This issues in consultation with Ministry of Finance, Department of Expenditure vide ID Note No. 1(7)/EV/2019 dated 05.12.2022 & 07.02.2023 and in consultation with Controller General of Accounts vide their 1.D. Note No. TA-3-6/3/2020-TA-III/cs-

4308/450 dated 23.12.2022

11. In so far as the persons serving in the Indian Audit and Accounts Department are concerned, these orders are issued in consultation with Comptroller and Auditor General of India, as mandated under Article 148(5) of the Constitution of India."

16. A bare reading of the above Office Memorandum shows that the Ministry of Personnel, Public Grievances and Pensions, Department of Pension and Pensioners' Welfare, Government of India, has decided that in all cases where the Central Government Civil Employee has been appointed against a post or Page No.# 12/14

vacancy which was advertised/notified for recruitment/appointment, prior to the date of notification for National Pension System i.e. 22.12.2003 and is covered under the National pension System on joining service on or after 01.01.2004, may be given a one-time option to be covered under the CCS(Pension) rules, 1972 (now 2021).

17. It is not disputed that the respondent No. 2 follows the CCS(Pension) Rules, 1972. The petitioner, having been appointed after 01.01.2004, had admittedly covered by the New Pension Scheme which is also reflected in their appointment order that the petitioners will be under the New Pension Scheme to be notified in due course. Having considered that the respondent No. 2 follows the CCS(Pension) Rules, 1972, the subsequent Office Memorandum dated 03.03.2023, which provides for one time option to be covered under the CCS(Pension) Rules, 1972 (now 2021), ought to have been applied and the petitioners ought to have been given an option to opt to be covered under the CCS(Pension) Rules, 1972 in terms of the aforesaid Office Memorandum dated 03.03.2023 as the petitioners, although appointed on 28.12.2004, the post were advertised for recruitment prior to the date of notification for National Pension Scheme, i.e. 31.01.2001.

18. It is true that the respondent No. 2, being a Company registered under Companies Act, is a separate entity and any Rules/Regulations of the State or Central Government shall not be automatically applicable. However, since the respondent No. 2 AEGCL has admittedly followed the CCS(Pension) Rules, 1972, thereby decided to place the employees including the petitioners under the New Pension Scheme in terms of the National Pension System dated 22.12.2003, the subsequent Office Memorandum dated 03.03.2023, arises out of the said Page No.# 13/14

National Pension System, which provides, although for Central Government Civil Employees, that those employees who have been appointed against the post or vacancy which was advertised for recruitment prior to the date of notification for National Pension System and is covered under the National Pension System on joining service on or after 01.01.2004, may be given a one-time option to be covered under the CCS(Pension) Rules, 1972, the respondent No. 2, having been not provided the option in terms of the said Office Memorandum, in my considered view, same had caused prejudice to the petitioners whereby they have been deprived of the Office Memorandum dated 03.03.2023, which is a decision arises under the CCS(Pension) Rules.

19. Regard being had to the decision and observation of the Hon'ble Supreme Court in the case of M/S New Bihar Biri Leaves Co. (supra). In the said case, the Hon'ble Supreme Court has observed that it is a fundamental principle of general application that if a person of his own accord, accepts a contract on certain terms and works out the contract, he cannot be allowed to adhere to and abide by some of the terms of the contract which proved advantageous to him and repudiate the other terms of the same contract which might be disadvantageous to him. Perusal of the above observation is a principle based on the maxim qui approbat non reprobate, which means one who approbates cannot reprobate and a party to an instrument or transaction cannot take advantage of one part of a document or transaction and reject the rest. In my considered view, would rather be applied to the respondents as the respondent No. 2, having been followed the CCS(Pension) Rules, 1972 and placed the petitioners under New Pension Scheme and thereafter cannot take a stand that the decision arises out of the Pension Rules would not be followed as it would amount to taking advantage of one part of a scheme and reject the rest which Page No.# 14/14

may be beneficial to the petitioners. Thus, the above observation applies against the respondents rather than the petitioners.

20. Having considered that the petitioners were appointed after 01.01.2004 and placed under New Pension Scheme in terms of the Notification for National Pension System dated 22.12.2003 and the Central Government having been subsequently decided to provide one-time option to those employees who has been appointed against the post which was advertised for recruitment prior to the said notification to be covered under the CCS(Pension) Rules, the respondent authorities are deserved to be directed to consider the case of the petitioner in terms of Office Memorandum dated 03.03.2023.

21. Accordingly, the respondent authorities, particularly the respondent No. 2 AEGCL, are directed to consider the case of the petitioners by providing them one-time option to be covered under CCS(Pension) Rules in terms of the Office Memorandum dated 03.03.2023 within a period of 60 (sixty) days from the date of receipt of certified copy of this order.

22. Writ petition stands disposed of in terms of above.

JUDGE

Comparing Assistant