Madhya Pradesh High Court
Ashwani Kumar Kashyap vs The State Of Madhya Pradesh on 15 October, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 15 th OF OCTOBER, 2025
WRIT PETITION No. 16567 of 2024
ASHWANI KUMAR KASHYAP AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Bramha Nand Pandey - Advocate for the petitioners.
Shri Ajay Ojha - Govt. Advocate for the respondents / State.
ORDER
The counsel for petitioners submits that the matter is covered by judgment
of this Court in WP No.7385 of 2023 decided on 25.08.2025 whereby this Court
has held that where selection has taken place prior to 01.01.2005 which is the date
of amendment in MP Civil Services Pension Rules, 1976 but actual appointment
has taken place after 01.01.2005, then the employees would still be covered under
the old pension scheme under the rules of 1976 because candidates cannot be
stated to be at fault for late issuance of appointment orders once selection had
taken place prior to 01.01.2005 and where selection list had been issued prior to
01.01.2005.
2. It is contended that in the present case selection list was issued on
11.08.2003 which was cancelled by ADG Police (Rail) and the candidates
approached this Court in number of writ petitions including WPS No.5967 of
2004 and this Court ultimately put the select list back to life vide order dated
13.01.2005 by granting liberty to the authorities to pass a fresh order.
3. It is the case of petitioners that the select list was found to be valid to
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the extent of petitioners and therefore he was given letter of appointment in the
year 2008. In the intervening period there was another adverse action of the
respondents denying appointment and the candidates again approached this Court
in various writ petitions including WPS No.4692 of 2005 decided on 11.03.2008.
4. The aforesaid issue where selection list has been issued prior to
01.01.2005 has already been decided in WP No.7385/2023 (Vinod Kumar Singh
Rathore Vs. State of M.P. & Ors.) by placing reliance on the judgment of Delhi
High Court in case of Tanaka Ram v. Union of India, 2019 SCC OnLine Del
6962 in the following manner:-
"Since all these petitions are filed for identical relief and are
on similar set of facts, therefore, they are being decided by
this common order. The facts in all other writ petitions are
similar except in W.P. No.16873/2025, though
relief claimed is same and the grounds on which relief
claimed are also similar.
2. In all the writ petitions prayer is made for coverage of the
petitioners under Old Pension Scheme, i.e. the pension
governed by M.P. Civil Services Pension Rules, 1976 and
since the petitioners have been given offers of appointment
after 01.01.2005, therefore, they have been denied coverage
under Old Pension Scheme and have been covered under
New Pension Scheme, subsequently known as 'National
Pension System' and governed by Pension Fund Regulatory
Development Authority (PFRDA) under PFRD Act, 2013.
3. It is not in dispute that vide amendment dated 02.04.2005
made effective w.e.f. 01.01.2005, the State Government has
amended the Pension Rules of 1976 and introduced new
clause (g) in Rule 2 to the effect that the said rules will not
apply to persons appointed after 01.01.2005. All the
petitioners are admittedly appointed after 01.01.2005,
though the recruitment notification was issued prior to
01.01.2005. Except in W.P. No.16873/2025, all
the petitioners were selected prior to 01.01.2005. In case of
petitioner in W.P. No.16873/2025, the selection list was
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issued in the year 2007.
4. In the cases where the selection list was issued prior to
01.01.2005, the common ground taken is that advertisement
for the post of Constable was issued in July, 2004 and the
selection list was issued in the month of August, 2004. The
medical verification/medical test was also carried out before
01.01.2005, but actual appointment order was issued after
01.01.2005. It has also been contended before this Court that
the recruitment notification was common for three districts
under Balaghat range, i.e. Balaghat, Mandla and
Dindori. However, in Districts of Mandla and Dindori, the
appointment orders were issued prior to 01.01.2005, but in
the District Balaghat appointment orders were issued after
01.01.2005 for which the petitioners have contended, that
they are not at fault.
5. Common ground taken is that the vacancies having been
notified and even selection list issued in these cases (except
W.P. No.16873/2025), therefore, the petitioners be declared
covered under Old Pension Scheme in terms of judgment of
the Division Bench of Delhi High Court in the case
o f Tanaka Ram v. Union of India, 2019 SCC OnLine Del
6962, wherein the Division Bench of Delhi High Court has
allowed similar petitions on the ground that since selection
had taken place prior to enforcement of amendment
in Central Civil Services Pension Rules, 1972, which was
w.e.f.01.01.2004 and the New Pension Scheme had been
introduced vide Government of India Notification dated
22.12.2003, therefore, since the petitioner therein had
been declared selected in the month of August, 2003 and
some candidates having been appointed prior to 01.01.2004
and some appointed after 01.01.2004, all the candidates
would be held covered under Old Pension Scheme.
6. Per contra, learned counsel for the State has vehemently
opposed the petition firstly, on the ground of delay by
contending that the appointment orders of the petitioners
were issued during the year 2005 and in one of the petitions,
in the year 2007. However, the present petitions have been
filed in the years 2023/2024/2025 with a delay of more than
15 years. It is further contended by relying on judgment in
the case ofState of M.P. v. Shardul Singh, (1970) 1 SCC
108that pension does not become a condition of service prior
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to appointment and the conditions of service are to be seen
from the date of appointment. It is further argued that even
as per Rule 2(g) of Pension Rules, 1976, the relevant date is
date of appointment. It is further argued that subsequently,
when the judgment in the case of Tanaka Ram (supra)
was followed by the Delhi High Court in another case, then
the Hon'ble Supreme Court has been pleased to stay the
operation of the said order, which is in S.L.P.(Civil) No.
1719/2021(Diary No.19314/2020) (Union of India Vs.
Neeraj Kumar Singh).
7. Heard.
8. First the objection as to delay is taken up. The petitioners
have not yet retired and the question of payment of pension
comes only at the time of retirement. Therefore, these
petitions, filed before retirement, cannot said to be hit by
delay and latches. Therefore, this objection is over-ruled.
9. So far as the contention of the petitioners that date of
appointment is the relevant date for determining the service
conditions, the said legal position cannot be doubted and is
well settled. The question that what would be the date of
appointment was considered by the Hon'ble Apex Court in
the case of Amarjit Singh Ahluwalia (Dr) v. State of Punjab,
(1975) 3 SCC 503by holding that an order of appointment
may be of three kinds. It may appoint a person with effect
from the date he assumes charge, or with immediate effect,
or appointment simplicitor without specifying the date on
which the appointment shall take effect. The Hon'ble Apex
Court has held as under:-
"10. We do not, however, think that the order dated
December 4, 1967 providing that the seniority of
Respondents 3 to 19 shall be reckoned from the date of their
appointment, namely, April 8, 1964 constituted a departure
from the principle of seniority laid down in clause (2)(ii) of
the memorandum dated October 25, 1965. The test
for determining seniority in the integrated cadre laid down
by clause (2)(ii) of the memorandum dated October 25, 1965
was the length of continuous service from the date of
appointment in the group. The appellant contended that
continuous service in a post could commence only when the
incumbent took charge of the post and not earlier
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and, therefore, though Respondents 3 to 19 were promoted
under the order dated April 8, 1964, their continuous service
in the posts of promotion in PCMS Class I did not
commence until after April 25, 1964 when they took charge
of their respective posts of promotion and hence the length
of their continuous service in PCMS Class I was less than
that of Dr Jagjit Singh and the appellant in Public Health
Service, Class I. This contention is fallacious in that it fails
to give sufficient importance to the words "from the date of
appointment" and ignores the true meaning and effect of the
order dated April 8, 1964. First let us see what the words
"date of appointment" mean. Are they synonymous with
"date of the order of appointment"? We think not. An order
of appointment may be of three kinds. It may appoint
a person with effect from the date he assumes charge of the
post or it may appoint him with immediate effect or it may
appoint him simpliciter without saying as to when the
appointment shall take effect. Where the order of
appointment is of the first kind, the appointment would be
effective only when the person appointed assumes charge of
the post and that would be the date of his appointment. It
would be then that he is appointed. But in a case of
the second kind, which is the one with which we are
concerned since the order dated April 8, 1964, appointed
Respondents 3 to 19 to PCMS Class I "with immediate
effect", the appointment would be effective immediately
irrespective as to when the person appointed assumes charge
of the post. The date of his appointment in such a case
would be the same as the date of the order of appointment. It
is, therefore, obvious that so far as Respondents 3 to 19
were concerned, the date of their appointment was April 8,
1964 and the length of their continuous service in PCMS
Class I was required to be reckoned from that date. It is true
that Respondents 3 to 19 did not assume charge of
their respective posts of promotion until after April 25,
1964, but that makes no difference because the length of
continuous service is to be counted from the date of
appointment on the hypothesis that once the appointment is
effective the person concerned is in the post and his service
in the post is deemed to have commenced though under
the Rules governing his conditions of service he may not be
entitled to the salary and allowances attached to the post
until he assumes charge of the post. The continuous service
of Respondents 3 to 19 in PCMS Class I, therefore,
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commenced from April 8, 1964 and since that was longer
than the continuous service of DrJagjit Singh and the
appellant in Public Health Service Class I, which
commenced only on April 25, 1964, Respondents 3 to 19
were entitled to be placed senior to DrJagjit Singh and the
appellant in the joint seniority list of the integrated PCMS
Class I."
10. However, the present case is a case where the
appointment admittedly was after 01.01.2005 and the
petitioners seek benefit of coverage under Old Pension
Scheme for the reason that the vacancy was notified prior to
01.01.2005 and secondly, in most of the cases, even
selection list was issued prior to 01.01.2005.
11. Rule 2(g) of M.P. Civil Services Pension Rules, 1976,
which is exclusion clause, was inserted by amendment
Notification dated 02.04.2005 which is duly brought on
record along with reply of the respondents as Annexure R-2.
The inserted exclusion clause 2(g) is as under:-
"2(g).Government servants appointed on or after 1st
January, 2005 to the services and posts in connection with
the affairs of the State, either temporarily or permanently."
12. It is imperative to mention here that the State of Madhya
Pradesh, unlike the Government of India did not adopt the
New Pension Scheme from a date anterior to amendment in
the Pension Rules of 1976. The amendment was made vide
amendment Notification dated 02.04.2005 w.e.f.01.01.2005.
The consequential adoption of N.P.S. took place later vide
Executive instructions dated 13.04.2005, which is placed on
record as Annexure R-1.
13. In the case of Tanaka Ram (supra), the Delhi High Court
has held as under:-
"6. A new Contributory Pension Scheme was introduced
on 22nd December, 2003 and was to be implemented with
effect from January, 2004. This was monetarily less
beneficial than the Old Pension Scheme. Those who had
been offered letters of appointment on 17th December, 2003
were covered by the Old Pension Scheme whereas those
candidates like the Petitioners whose letters of offers
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of appointment were issued only in February, 2004 were
deprived of the benefit of the Old Pension Scheme.
7. A batch of the Petitioners who were selected pursuant to a
SubInspector (DE), Central Police Organisation ('CPO')
Examination 2002 and were also deprived of the benefit of
the Old Pension Scheme on account of the delay on the part
of the Respondents in issuing the appointment orders. They
filed WP (C) No. 3834/2013 (ParmanandYadav v. Union of
India) in this Court. By a judgement dated 12th February,
2015 this Court allowed the said writ petition. The Court in
doing so followed its earlier order dated 26th May, 2011 in
WP (C) No. 5400/2010 (Avinash Singh v. Union of India)
which was followed in the decision dated 2nd November,
2012 in WP (C) No. 3827/2012 (Naveen Kumar Jha v.
Union of India). 8. The Directorate General (BSF) issued an
order dated 13th January, 2016 accepted the decision of this
Court in ParmanandYadav (supra). It was mentioned in the
said order interalia as under:
"9. Whereas, the opinion of the Govt. Counsel was
invited aiid according to opinion of the Govt. Counsel on
the judgment dated February 12, 2015 passed by the
Hon'ble High Court of Delhi in the said Writ Petition No.
3834 of 2013 titled as Parma NandYadav v. Union of India
warrants no interference.
10. Whereas, in order to implement the order
dated 12.02.2015 passed by Hon'ble High Court of Delhi,
the whole issue has been examined in detail and after inter-
Ministerial consultation, it has been decided to implement
aforesaid order of Hon'ble High Court of Delhi to extend the
benefits of Old Pension Scheme to petitioners and other
similarly situated SI/DE selected through CPOs Exam-2002
as members of the old pension scheme, which was in vogue
till 31/12/2003, subject to the condition that they will not be
entitled for any back wages or seniority etc. 11. Now,
therefore, in respectful compliance of order dated
12.02.2015, passed by Hon'ble High Court of
Delhi, approval of Competent Authority i.e. Ministry of
Home Affairs is hereby conveyed to convert the petitioners
and other similarly situated SI/DE selected through CPOs
Exam-2002 (as per list enclosed at Appendix-A) as members
of the old pension scheme, which was in vogue till
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31/12/2003 and the NPS corpus which were earlier
subscribed should be transferred to the GPF accounts of
each individual, subject to the condition that they will not be
entitled for any back wages or seniority etc."
12. It is submitted by the Respondents that the cases of
Avinash Singh and Naveen Kumar Jha "are entirely different
from the instant case where according to the Respondents
the advertisement was published in the month of September,
2003 and the entire process was completed in December,
2003. The Petitioner along with the batch mates joined in the
month of February, 2004." Reliance is further placed on the
judgment dated 11th September, 2017 of a Division Bench
of this Court in WP(C) No. 6525/2016 (V. Ramana Murthy
v. Union of India) where the aforementioned decisions
were sought to be distinguished.
13. This Court has examined the decision in V.
Ramana Murthy v. Union of India (supra). In the case of
those Petitioners, the final results were declared between
22nd and 28th May, 2004. 192 Petitioners were asked
thereafter to join the BSF. Reliance was placed on the
decision in Shailender Kumar v. DHC, (2012) 189 DLT 524
where inter-alia on the facts of those cases it was observed
as under:
"This is not the case of the petitioners that their inability
to join on or before 31.122003 was attributable to any
negligence or lapse on the part of the respondents. If
inability of the petitioners to join service on or before
31.12.2003 is not attributable to the respondents or to any
order passed by a Court and was only on account of the time
taken by the Hospital/Police in conducting medical
examination and police verification, the petitioners cannot
claim parity with the petitioners in the case of Dr. Pawan
Kumar N. Mali (supra)."
14. The Court finds that in V. Ramana Murthy, the Division
Bench of this Court did not take note of the order dated 13th
January, 2016 issued by the BSF itself accepting the
decision in ParmanandYadav. By issuing the said order
dated 13th January, 2016, the BSF was accepting that the
delay in issuing the offers of appointment was for reasons
not attributable to ParmanandYadav similarly situated but
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on account of the Respondents. That factual situation made
the decision in Shailender Kumar v. DHC (supra) referred to
in V. Ramana Murthy (supra) inapplicable.
16. Thus, it is clear that even after the decision in V.
Ramana Murthy, the MHA has decided to extend the benefit
to all CAPFs. As far as BSF is concerned, even as recently
as on 16th October, 2018 a detailed order was passed with
reference to those who participated in the 2003 exam. The
said order reads as under:
"Whereas, BSF Communication Directorate issued
an advertisement in the Employment News published during
the week 05-11 July 2003 and various other leading
newspapers inviting applications to fill up total 250 posts of
Head Constable (Radio Operator) by Direct Recruitment in
BSF Communication set up. Further, BSF conducted
the recruitment w.e.f 22nd September to 27th September
2003 at various Frontiers Centres and total 223 HCs (RQ)
were recruited/selected in the said recruitment. Thereafter,
the offer for appointment for the post of HCs (RO) of
successful candidates were issued and the same were divided
into two batches due to administrative constraints of STCs
in BSF i.e. inadequate Training Infrastructure,
Accommodation & Instructors.
2. Whereas, the call letters for the first batch comprising of
104 HCs/RO were issued In the month of Nov 2003,
with direction to report to STC BSF Bangalore by 08th
December 2003. The call letters for the second batch
candidates comprising of 119 HCs (RO) were issued in the
month of January 2004, with direction to report to STC BSF
Bangalore by 14/02/2004. However, only 102 candidates
reported for Basic Recruit Training in second batch. Out of
which 03 resigned during the basic training. As a result, the
selected candidates of first batch became eligible for
pensionary benefits under Old Pension Scheme whereas the
candidates of second batch were dealt under New
Contributory Pension Scheme as they entered into Central
Government Service after 1st January 2004 and were,
therefore, not entitled for the benefits of Old Pension
Scheme in compliance to Government of India, Ministry of
Finance, Department of Economic Affairs (ECB &PR
Division) Notification dated 22/12/2003.
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3. Whereas there is a precedence of similar case in
the matter of Insp. ParmanandYadav&125 others-Insp.
(GD) posted at various HQrs of BSF who had prayed for
grant of benefits of Old Pension Scheme on the ground that
they were selected as SI (DE) through CPOs Examination
2002. The result of the examination was declared by SSC in
the month in the month of August, 2003. The offer of
appointment in respect of successful candidates allocated to
others CAPFs were issued in the month of October 2003 and
they were enrolled before 01/01/2004, whereas, offer of
appointment were issued by BSF in December 2003.
Consequent upon commencement of their training in
January 2004, they were deprived of the benefits of Old
Pension Scheme which became inoperative with effect from
01/01/2004 onward as BSF issued joining letter to all
candidates in the month of December 2003. Insp.
ParmanandYadav& 125 other Inspectors filed a WP(C) No.
3834 of 2013 in Delhi High Court for grant of Old Pension
Scheme to them. Hon'ble High Court of Delhi passed the
judgment in the favour of petitioner's on 12/02/2015.
The whole issue had been examined in detail and after Inter
Ministerial consultation, it had been decided to
implement aforesaid order of Hon'ble High Court of Delhi to
extend the benefits of Old Pension Scheme to petitioners and
other similar situated Cases/personnel as member of the
Old Pension Scheme, which was in vogue till 31/12/2003
and the NPS corpus which were earlier subscribed was
transferred to the GPF accounts of each individual, subject
to the condition that they will not be entitled for any back
wages or seniority etc. The decision was implemented vide
FHQ BSF Pers. Dte (Rectt. Sec) Order No. A.8 (Estt)(DE)
CPOs Exam-2002/Pers (Rectt. Sec)/BSF/2016/290-620
dated 13th January, 2016.
4. Whereas, aggrieved HCs (RO) of Second
Batch conceptualized by HC (RO) Sunil Deals of BSF
Signal Regiment have made representation, praying therein
to extend the benefits of Old Pension Scheme at par with 1st
Batch candidates in the light of the Hon'ble High Court of
Delhi Judgment dated February 12, 2015 in case of
Insp. ParmanandYadav being similarly situated case.
5. Whereas, the similarity between the two cases is
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as follows:--
a) In both the cases, candidates appeared for
open competitive examination in the year 2002 & 2003
and their results were announced in the month of
Sept. 12 2003 i.e. prior to 01.01.2004 (prior to introduction
of NPS), but some successful candidates were called
for training in the month of November 2003 i.e. prior
to 01.01.2004 and remaining after 01.01.2004 as a result of
which the latter were deprived of Old Pension Scheme.
b) Administrative constraints of the department and the
training institution resulted in calling some of the successful
candidates for training after 01/01/2004.
c) Delay in appointment of second batch candidates is not
attributable to these candidates.
6. Whereas, the whole issue was examined in detail
in Ministry of Home Affairs and after Inter
Ministerial Consultation i.e. Department of Pension
&pensioner's Welfare (DoP&PW) and with Department of
Personnel &Training (DoP&T) etc. Thereafter approval has
been extended by Ministry of Home Affairs to extend the
benefits of Old Pension Scheme to Candidates i.e 2nd batch
of 99 NosHC(RO) recruited in the year 2003 to whom the
call letters were issued in the month of January 2004
with direction to join training centre on or before
14.02.2004, subject to condition that they will not be entitled
for any back wages or seniority etc.
7. Now. therefore, approval of Competent Authority
i.e Ministry of Home Affairs is hereby conveyed to extend
the benefits of Old Pension Scheme to second batch of
99 NosHCs(RO) (as per list enclosed at Appendix- "A")
as members of the Old Pensions Scheme, which was in
vogue till 31.12.2003 and the NPS corpus which were
earlier subscribed should be transferred to the GPF accounts
of each individual, subject to the condition that they will not
be entitled for any back wages or seniority etc.
8. This has the Financial Concurrence of Joint Secretary &
Finance Advisor (JS &FA) BSF vide their Dairy No
2547 dated 12 October 2019 and approval of the DG BSF
vide DG's Sectt Diary No 5166 dated 15 October 2018."
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17. In other words, the BSF itself has accepted that the
benefit of the decision in Parmanand Yadav (supra) and the
option to continue the Old Pension Scheme should be
extended to all those who had been selected in the exam
conducted in 2003 but were only issued call letters in
January or February, 2004."
14. The aforesaid judgment in the case of Tanaka Ram
(supra)has been affirmed by the Hon'ble Apex Court in
S.L.P.(Civil) Diary No.25228/2019 by dismissing the S.L.P.
filed by the Union of India.
15. The aforesaid judgment in the case of Tanaka
Ram(supra), was followed by a co-ordinate Bench of this
Court in W.P.No.3440/2020 (Satyendra Sharma Vs. Home
Department and Others) at Indore. The Co-ordinate
Bench considered the similar facts that advertisement was
issued in June, 2004 and selection list was issued in August,
2004. Thereafter, a verification process, etc. was going on
and ultimate appointment orders were issued in February,
2005. The Co-ordinate Bench has held that in such case, the
candidates cannot be held to be at fault by not covering them
under OPS. The Co-ordinate Bench held as under:-
"11. From the record, it is apparent that the petitioner
was selected through advertisement dated 19.06.2004, and
he had already submitted his documents for verification on
02.09.2004, and S.P. Dhar had sent the same on 03.09.2004
to S.P. Bhind and, admittedly, after they were resent to S.P.
Bhind due to negligence on the part of S.P. Dhar, the
documents could be verified only on 30.01.2005, and
thereafter the appointment letter was issued to the petitioner
on 16.02.2005, meaning thereby that the delay
was attributable to the respondents only to verify the
documents filed by the petitioner within a reasonable period
of time, as the respondents had four months to verify the
documents and also had all the resources at their disposal.
13. In view of the aforesaid dictum of the Division Bench
of Delhi High Court as propagated by Delhi High Court, this
Court is of the considered opinion that the respondents have
clearly erred in not providing the benefits of the old pension
scheme under the Pension Rules of 1976, despite the fact
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that the delay in issuing the appointment letter was on their
part only, coupled with the fact that all the identically placed
persons, who were selected along with the petitioner, are
already availing the benefits of the old pension scheme.
Thus, the petitioner's case cannot be discriminated."
16. The aforesaid order has been confirmed by the Division
Bench in W.A.No.1485/2024 vide order dated 05.07.2024 in
the following terms:-
"08. A bare reading of the order passed by the learned
Singe Judge makes it clear that the respondent was
appointed in pursuant to the advertisement dated 19.06.2004
and he had already submitted the desired documents for
verification on 02.09.2024 and S.P., Dhar sent the same to
S.P., Bhind on 03.09.2004. Thereafter, admittedly, the
documents were resent to S.P., Bhind and due to the
negligence on the part of the S.P., Dhar, the documents
could be verified only on 30.01.2005. Due to this delay, the
appointment order of the respondent was issued on
16.02.2005. Hence, the delay is attributable to the appellants
only in verifying the documents filed by the respondent,
within a reasonable time. The appellants were having four
months' time to verify the documents, however, they did do
so well within time. The respondent cannot be made suffered
for the fault on the part of the appellants. Hence, we are in
concordant with the view taken by the learned Single
Judge."
17. Learned counsel for the State when faced with the said
orders, which squarely cover the case of present petitioners,
in those petitions where select list was issued prior to
01.01.2005, argued that subsequently, the
Hon'bleApex Court in the case of Neeraj Kumar Singh
(supra) had stayed the operation of the similar order passed
by the Delhi High Court.
18. Upon considering the aforesaid submissions, it is seen
that ultimately the S.L.P. of the Union of India in the case of
Neeraj Kumar Singh (supra) has been dismissed for the
reason that the Central Govt. itself has brought out
a Circular that NPS has been accepted by Central Govt. vide
Circular dated 22.12.2003 and therefore, all the cases where
the vacancy has been notified by Central Govt. prior to
22.12.2003, the Central Govt. has taken the view that such
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employees, irrespective of their date of appointment, be
given one time option to be covered under OPS. In the said
terms, by final order dated 06.09.2023, the Hon'ble Apex
Court disposed off the case of Neeraj Kumar Singh
(supra)by holding that the Government is bound by the
Office Memorandum issued by the Govt.
19. Therefore, in the case of Neeraj Kumar Singh (supra),
the Hon'ble Apex Court finally disposed off the S.L.P. of the
Union of India on the basis of the Office Memorandum
issued by the Central Govt. itself. Therefore, in the opinion
of this Court, the ratio in the case of Tanaka Ram (supra)has
not been diluted in any manner. The said ratio would apply
to the cases of present petitioners with full force. For ready
reference, the Apex Court has rejected the S.L.P. of the
Union of India in the following terms:-
"The special leave petition is liable to be dismissed in view
of the Office Memorandum No. 57/05/2021 - P&PW(B),
dated 03.03.2023, issued by the petitioners. Paragraph 4 of
the said Office Memorandum reads as under: -
"4. The matter has been examined in consultation with
the Department of Financial Services, SLP(C) No.
1719/2021 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 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). This option may
be exercised by the concerned Government servants latest
by 31.08.2023."
The petitioners are bound by the aforesaid Office
Memorandum.
The special leave petition is accordingly dismissed."
(Emphasis in original)
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15 WP-16567-2024
20. In view of the above, as no corresponding decision has
been taken by the State of Madhya Pradesh, the decision of
Neeraj Kumar Singh (supra) does not help either of the
parties.
21. Coming to the ratio of Tanaka Ram (supra), as upheld by
the Hon'ble Supreme Court, the State Govt. did not accept
NPS for its employees till 13.04.2005 and the amendment in
OPS dated 02.04.2005 was w.e.f.01.01.2005 and the
vacancies in this case having been notified prior
to 01.01.2005 and selection list issued prior to 01.01.2005
and the matter being pending with the State authorities only
for verification, medical report, etc. and the petitioners not
having been pleaded to have exhibited any negligence
or caused any delay in the matter, because the medical
reports are also placed on record which are of September,
2004, it cannot be said that the petitioners are not covered by
judgment in the case of Tanaka Ram (supra)passed by
Division Bench of Delhi High Court and as subsequently
affirmed by the Hon'ble Apex Court.
22. XXX XXX XXX
23. Consequently, W.P. Nos.7385/2023, 7420/2023,
7422/2023, 7425/2023, 7427/2023, 9259/2023, 9260/2023,
9262/2023, 9263/2023, 9329/2023, 9331/2023, 9344/2023
& 1130/2024 are allowed. These petitioners are held entitled
to be covered under OPS governed by Pension Rules of
1976. However, this order would take effect only when these
petitioners refund Employer's Contribution remitted by the
State Govt. in NPS with interest as applicable on NPS
deposits. The State Govt. would not be liable to
contribute towards NPS of these petitioners in future. The
consequential action be taken within a period of sixty days
from the date of production of certified copy of this Order,
with the State Government intimating the amount to be
refunded by the petitioners within 60 days. Upon the
petitioners refunding such amount within 30 days of such
intimation, the petitioners will get covered under
OPS, otherwise, the benefit of this order will be wiped out
and the petitioners will be continue to be covered under
NPS."
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16 WP-16567-2024
5. Consequently, following the same ratio, it is directed that the petitioners
are entitled to be covered under the OPS governed by Pension Rules of 1976. The
order will be applicable to the petitioners in the manner as directed in para-23 in
WP No.7385 of 2023, as quoted above, i.e. upon the petitioners refunding the
amount of Govt contribution in NPS in the manner prescribed in the said order.
6. The petition stands disposed off in above terms.
(VIVEK JAIN)
JUDGE
nks
