[Cites 4, Cited by 0]
Patna High Court
Ashok Singh vs The Union Of India on 17 March, 2026
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.6 of 2025
In
Civil Writ Jurisdiction Case No.13044 of 2014
======================================================
1. Ashok Singh S/o - Late Chandra Deo Prasad Singh, R/o - NIT Patna
Campus, Patna - 5, P.S. - Pirbahore, District - Patna. Now at present R/o-
Sonadih, Sona Gopalpur, P.S. - Gopalpur, Sampatchak, Patna -7.
2. Md. Arshad, S/o- Md. Yunus, Resident of - G.Lane, Pirbahore, Patna- 6,
P.S.- Pirbahore, District - Patna.
3. Kumar Abhishek, S/o - Late Purendra Mishra, R/o- Nagina Nagar, Kumhrar,
P.S. - Agamkuan, District- Patna.
4. Vishwanath Mahto, S/o Late Ram Briksha Mahto, Resident of - N.I.T.
Campus, P.S. - Pirbahore, District - Patna, at present R/o- Golakpur, Ashok
Raj Path, P.S. - Pirbahore, District- Patna.
... ... Appellant/s
Versus
1. The Union of India through the Secretary, Ministry of Human Resource
Development, Department of Secondary and Higher Education, Shastri
Bhawan, New Delhi.
2. The National Institute of Technology, Patna through its Director, N.I.T.
Patna.
3. The Director, National Institute of Technology, Patna.
4. The Registrar, National Institute of Technology, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Siya Ram Shahi, Adv.
Mr. Abhishek Raj Kashyap, Adv.
Ms. Shally Kumari, Adv.
For the NIT : Mr. Y. V. Giri, Sr. Adv.
Mr. Sanjay Kumar Giri, Adv.
Mr. Mritunjay Harsh, Adv.
For the UOI : Mr. Brajesh Kumar Pandey, CGC
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE HARISH KUMAR)
Date : 17-03-2026
We have heard Mr. Siya Ram Shahi, learned counsel
for the appellants, Mr. Y.V Giri, learned senior counsel for the
Patna High Court L.P.A No.6 of 2025 dt.17-03-2026
2/20
National Institute of Technology, Patna and Mr. Brajesh Kumar
Pandey, learned counsel for the Union of India.
2. The present intra-court appeal is preferred against
the order/judgment dated 29.11.2024 passed by the learned
Single Judge in CWJC No. 13044 of 2014, whereby and
whereunder the claim of the writ petitioners for extending
benefit of Old Pension Scheme came to be rejected.
3. The facts, in brief, are that the petitioners were duly
appointed against Class III and Class IV post under the Centre
for Water Resources Studies (in short 'CWRS') sometime in the
year 1983 and 1984. The CWRS as then was a self financing
research organisation having its head of the department Civil
Engineering, Patna University. In the meeting of the Centre
Management Committee, Patna University, held on 04.09.1986
in the Chairmanship of the Principal, Bihar College of
Engineering, Patna, it was decided to provide regular pay scale
to the petitioners.
4. Subsequently, while the petitioners were working in
Class III and Class IV posts on the recommendation of the
Committee constituted by the Senate and Syndicate as also on
the recommendation of the Committee constituted by the Vice
Chancellor, Patna University and in the light of the letters of the
Patna High Court L.P.A No.6 of 2025 dt.17-03-2026
3/20
State Government as well as the order of the Court, the services
of the petitioners were duly absorbed from the date of their
joining in the respective pay scale of Class III and Class IV post
vide office order dated 28.01.2004 (Annexure-5 to the writ
petition). The writ petitioner nos. 1 and 2 have been posted in
the Bihar College of Engineering, Patna as Routine Clerk
against the post of Accountant and Lab Assistant respectively.
Similarly, the writ petitioner Nos. 3 and 4 have been posted as
Lab Attendant and Daftari. In pursuance of the aforesaid letter
of absorption, the petitioners submitted their joining on
29.01.2004
. In the meantime, another development took place
and vide notification dated 28.01.2004 issued by the Ministry of
Human Resources Development, Bihar College of Engineering,
Patna has been taken over as fully funded institute of the Central
Government and rechristen as National Institute of Technology,
Patna with immediate effect. Consequent upon said take over
CWRS, Bihar College of Engineering Patna has also been taken
over.
5. Notwithstanding the aforesaid facts, when the
petitioners have been deprived from payment of current salary
as well as arrear thereof, the petitioners and one another
identically situated person filed CWJC No. 8087 of 2004
Patna High Court L.P.A No.6 of 2025 dt.17-03-2026
seeking a direction, inter alia, to accept the joining of the
petitioners whose services have been absorbed by the office
order dated 28.01.2004 and further to extend salary from
29.01.2004 on account of their absorption in terms with office
order dated 28.01.2004.
6. The writ petition filed by the petitioners was finally
allowed vide order dated 09.01.2006 with a direction to the
National Institute of Technology to take over the services of the
petitioners on their respective posts and utilize their services on
regular basis and pay their remuneration, including arrears of
pay, in accordance with law. The National Institute of
Technology, Patna aggrieved with the order of the learned
Single Judge has preferred LPA No. 245 of 2006. However, the
same stood dismissed on 28.01.2006. Thereupon both the orders
of the learned Single Judge as well as the learned Division
Bench of this Court were questioned in SLP (Civil) No. 19811
of 2006 before the Hon'ble Supreme Court by the National
Institute of Technology, Patna and finally the said SLP has been
disposed off on 03.03.2008 in terms of the compromise arrived
between the parties. In the light of the order of the Hon'ble
Supreme Court and in terms of the compromise arrived between
the parties, the petitioners were being treated as the employees
Patna High Court L.P.A No.6 of 2025 dt.17-03-2026
of the National Institute of Technology, Patna w.e.f. 28.01.2004
and have also been allowed the current as well as arrears of
salary. Subsequently, while the petitioners were discharging
their duties to their respective posts, in the meanwhile, the
Registrar, National Institute of Technology vide its office order
dated 23.06.2014 directed the petitioners to apply for Permanent
Retirement Account Number (PRAN) in NPS system by
26.06.20014, failing which it is further directed that they shall
be subjected to departmental proceeding. Aggrieved with the
order dated 23.06.2014, the petitioners filed the writ petition
bearing CWJC No. 13044 of 2014.
7. It would be relevant to note here that during the
pendency of the writ petition, the petitioner No. 3, Purendra
Mishra died on 24.11.2014 due to carcinoma and after the death,
his wife, Renu Devi had been pursuing litigation but she also
died on 17.05.2021 and accordingly an interlocutory application
bearing I.A. No. 2 of 2022 was filed for substituting the name of
Kumar Abhishek, who has been substituted in pursuant to the
order dated 17.07.2023.
8. While assailing the afore-noted order, learned
Advocate for the petitioners submitted that it is not material
when services of the petitioners have been regularised; the
Patna High Court L.P.A No.6 of 2025 dt.17-03-2026
important aspect of the matter is that whether the absorption /
regularisation would amount to new appointment? The
absorption /regularisation of the petitioners cannot be treated as
a fresh appointment, but in a most arbitrary manner they have
been treated as a new entrant and wrongly put in New Pension
Scheme following the cut off date 01.01.2004. It is also
submitted that para 2(i) of the notification dated 04.11.2015
would come into the aid of the petitioners to the extent that the
petitioners were duly appointed in National Institute of
Technology on 28.01.2004, therefore, their services to be treated
as All India Services. It is further contended that even if the
National Institute of Technology is an autonomous body, it is
under the control of the Government of India and in that event
the petitioners are also entitled to have the benefit of para 2(i) of
the aforemetioned notification contained in notification dated
04.11.2015.
9. The aforesaid submission of the petitioners were
refuted by the learned Advocates for the National Institute of
Technology as well as the Union of India.
10. The learned Single Judge having heard the learned
Advocates for the respective parties vide its order/judgment
dated 29.11.2024 dismissed the writ petition in the following
Patna High Court L.P.A No.6 of 2025 dt.17-03-2026
terms:
" x x x x
5. Learned counsel for the petitioners is
relying on Para 2(i) to the extent that petitioners
were appointed in NIT on 28.01.2004, therefore,
their services to be treated as All India Services.
Even if it is autonomous body it is under the control
of Govt. of India in that event petitioners are also
entitled to have the benefit of Para 2(i) of the
aforementioned clarification. It is to be noted that
Para 2(i) is in respect of "and appointed to All
India Services on or after 01.01.2004". There is no
iota of material to show that All India
Services/State Government or autonomous bodies
as in the earlier clause, therefore, the later clause
is restricted to only such of those employees who
were working in a pensionable establishment
namely Central/State Governments or autonomous
bodies as on 31.12.2003. No doubt, petitioners
were working in autonomous body on 31.12.2003.
However, petitioners were not appointed in All
India Services like "appointed to All India Services
on or after 01.01.2004". In the absence of word
autonomous bodies and All India Services, the
petitioners are not entitled to have the benefit of
old pension scheme in view of the fact that they
were regularized on 28.01.2004, the date on which
new pension scheme was introduced w.e.f.
01.01.2004.
Patna High Court L.P.A No.6 of 2025 dt.17-03-2026
6. Accordingly, the present writ petition
stands dismissed."
11. Mr. Siya Ram Shahi, learned Advocate for the
appellants submitted that the appellants were not a direct recruit
under the services of the Union of India, rather their services
have been absorbed by Patna University and posted them in the
erstwhile Bihar College of Engineering where they were
working against Class III or Class IV post on regular pay scale
as casual/daily wage employee. The absorption in the services
was not a fresh recruitment and since the petitioners were
working in the erstwhile Bihar College of Engineering, which
was later on taken over by the National Institute of Technology,
Patna with their liabilities and assets on 28.01.2004, hence, the
petitioners-appellants herein are entitled to Old Pension
Scheme. Heavy reliance has been placed on Clause 2(ii) of the
office memorandum dated 04.11.2015. Reliance has also been
placed on a decision rendered in the case of Nagar Mahapalika,
Kanpur vs Smt. Vibha Shukla & Ors [(2007) 15 SCC 161],
wherein the Court has held that regularisation is not a mode of
appointment.
12. It is vehemently contended that the learned Single
Judge has not taken into consideration the office memorandum
Patna High Court L.P.A No.6 of 2025 dt.17-03-2026
dated 04.11.2015 issued by the Government of India whereby
classification regarding counting of past services for
admissibility of old pension scheme, in view of pension scheme,
pay protection and leave accumulation to All India Services has
been issued to its entirety and admittedly on 28.01.2004, the
services of the appellants-writ petitioners were regularised
/absorbed by the Patna University while they were posted in the
Bihar College of Engineering, Patna. On account of the
aforesaid reason, their services were duly absorbed by the
National Institute of Technology, Patna in terms of the
compromise arrived between the parties in SLP (Civil) No.
19811 of 2006. In that view of the matter, the petitioners cannot
be said to be new entrant or a fresh recruit. The petitioners had
been working in an autonomous body and later on absorbed in
All India Services on/or after 01.01.2004 with proper
permission shall be covered under the old non-contribution
pension scheme.
13. Per contra, Mr. Y.V. Giri, learned Senior Advocate
has submitted that the writ petition as well as the Letters Patent
Appeal is barred by waiver, acquiescence and estoppel,
inasmuch as, services of the petitioners as casual employees
were regularised against Class III and Class IV post with effect
Patna High Court L.P.A No.6 of 2025 dt.17-03-2026
from 28.01.2004 in pursuant to the order of the Hon'ble
Supreme Court based upon the terms of the compromise arrived
at between the parties. As per the terms of the compromise, it
was agreed by the petitioners that in future they will not claim
anything monetary or otherwise from the National Institute of
Technology, Patna for the period prior to 28.01.2004. It was also
made clear that the petitioners agreed not to claim any benefit or
take any steps for implementation of the order passed in CWJC
No. 8087 of 2004 and if any of the party acts against the terms
and conditions of the compromise, the same will not be
entertained anywhere. The terms and condition incorporated in
the compromise petition are binding upon the parties to the
compromise, hence the prayer made by the petitioners,
appellants herein is not tenable in the eye of law. It has further
been contended that the New Pension Scheme came into effect
from 01.01.2004 and any employee joining the government
service on or after 01.01.2004 will be covered by the NPS and
not under the Central Civil Services (Pension) Rules, 1972.
14. After careful consideration of the submissions
advanced by the learned Advocates for the respective parties;
before proceeding further, it would be pertinent to take note of
the admitted facts that the petitioners were casual employees
Patna High Court L.P.A No.6 of 2025 dt.17-03-2026
under CWRS till 28.01.2004, the date on which the erstwhile
Bihar College of Engineering was taken over by the Central
Government from Patna University and it was rechristened as
National Institute of Technology, Patna under the Ministry of
Human Resources Development. The petitioners on being
deprived of the benefits of regular employee, including salary
and arrears thereof, have filed CWJC No. 8087 of 2004 seeking
a direction upon the respondent National Institute of
Technology, Patna to accept their joining on absorption in
pursuant to the office order dated 28.01.2004, besides their
current salary as well as arrears thereof. The writ petition was
finally allowed vide order dated 09.01.2006 with a direction to
the National Institute of Technology, Patna to take over the
services of the petitioners; and finally the matter went to the
Hon'ble Supreme Court in SLP (Civil) No. 19811 of 2006
which came to be disposed off on 03.03.2008, in terms of the
compromise arrived at between the parties. The copy of the
compromise deed was taken on record and the Special Leave to
Appeal was disposed of in terms therewith.
15. We have also gone through the compromise deed
and found that the petitioners, who were respondent Nos. 1 to 4
before the Hon'ble Supreme Court, had agreed that in future,
Patna High Court L.P.A No.6 of 2025 dt.17-03-2026
they will not claim anything monetary or otherwise for the
period prior to 28.01.2004 on which date, National Institute of
Technology, Patna came into existence after taking over of
Bihar College of Engineering; they have also assured that they
will withdraw the contempt petition and will not take any steps
for implementation of the order passed in CWJC No. 8087 of
2004 nor they will claim anything in the light of the said order
against National Institute of Technology, Patna. The
compromise deed further clarified that if any of the party acts
against the terms and condition of this compromise, the same
will not be entertained anywhere and the terms and conditions
incorporated in the compromise petition are binding upon the
parties to the compromise.
16. Despite the aforesaid position that the petitioners
undertook that they will not press for implementation of the
order of the learned Single Judge in CWJC No. 8087 of 2004,
this Court is conscious of the settled law that the doctrine of
estoppel is not applicable against the law. Hence, we further
proceeded to examine the legality of the impugned order. Since
the issue before the learned Single Judge was in respect to
applicability of notification dated 04.11.2015, it would be apt
and proper to reproduce the same:
Patna High Court L.P.A No.6 of 2025 dt.17-03-2026
" No. 25011/6/2014-AIS(II)
Government of India
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel and Training
North Block, New Delhi-110001
Dated: 04/11/2015
OFFICE MEMORANDUM
Subject:-Counting of past service for admissibility in old
pension scheme, new pension scheme, pay protection and
leave accumulation to All India Services officers:
clarification regarding.
I am directed to say that while introducing
the New Pension Scheme from 01/01/2004,
amendments to various existing rules including second
proviso to Rule 1 of the All India Services (Death Cum
Retirement Benefits) Rules, 1958 were made whereby
these rules became inapplicable to those appointed to
All India Service and posts from 01/01/2004. The
pension of the member of All India Services appointed
on or after 01/01/2004 is regulated by the New Defined
Contribution Pension Scheme (known as the New
Pension Scheme), notified by the Ministry of Finance
(Department of Economic Affairs) vide their
Notification No.5/7/2003-ECB2 PR dated 22/12/2003
now rechristened as National Pension System as per
Section 8 of Pension Fund Regulatory Development
Authority Act, 2013. The guidelines for New Pension
Scheme in respect of All India Services was issued by
this Department vide letter No.25014/14/2001-AIS(II)
dated 08/09/2009 in terms of the instruction/guidelines
notified by the Ministry of Finance.
2. Therefore, in view of the above new and
changed position, this Department has received
references from the State Governments and member of
services for clarification in regard to counting of past
services for the purpose of pensionary benefits, pay
protection and leave accumulation. The matter has
been examined by this Department in consultation with
the Ministry of Finance (Department of Expenditure)
and Department of Pension and Pensioners' Welfare
Patna High Court L.P.A No.6 of 2025 dt.17-03-2026
and has decided as under: -
(i) The member of All India Services who had
been an employee in pensionable establishment viz.
Central/State Governments or autonomous bodies as
on 31/12/2003 and appointed to All India Services on
or after 01/01/2004 with proper permission shall be
covered under the old non-contribution pension scheme
in terms of Office Memorandum No. 28/30/2004-
P&PW(B) dated 28/10/2009, which has been made
applicable Mutatis-Mutandis to members of All India
Services by this Department vide letter No.
25014/1/2013-AIS(II) dated 18/3/2013. The pay
protection and leave accumulation arising out of
previous service would be admissible as per relevant
rules of respective All India Services (Pay) Rules and
All India Services (Leave) Rules, 1955.
[Underline Supplied]
(ii) Those under CPF etc will not be allowed
entry into the old pension scheme on appointments
from 01/01/2004. (iii) The member of All India Services
who were appointed to government service in the
central/state governments or autonomous bodies,
whether in a pensionable or non-pensionable
establishment, on or after 01/01/2004 before being
appointed to All India Services shall be governed by
the New Pension Scheme. The pay protection and leave
accumulation arising out of their previous service
would be admissible as per the relevant rules of the
respective All India Services (Pay) Rules and All India
Services (Leave) Rules, 1955.
[Underline Supplied]
(iv) The admissibility of counting of past
services for the purpose of benefits as mentioned at
point (i) and (iii) above shall be subject to continuous
service and technical resignation.
3. The State Governments are competent to
determine the past service rendered by the member of
service for such benefits as mentioned above. The
service rendered by a member of All India Services
Patna High Court L.P.A No.6 of 2025 dt.17-03-2026
before his appointment to the service under the Central
Government or a State Government will count as
continuous service for the said benefits subject to the
fulfilment of the specific conditions provided in the All
India Services (Leave) Rules, 1955 and the respective
All India Services (Pay) Rules. Approval of the Central
Government is not necessary for counting the previous
service for such benefits. In such cases the Government
of the State on whose cadre the member of service is
borne/the Accountant General concerned, will have to
take necessary action in consultation with the
Central/Department or the State Government, if the
officer had worked under the Central Government or
another State Government, as the case may be, before
joining the All India Services, to count such service as
qualifying service for the aforesaid benefits. If any
clarification is required or condonation of break in
service is involved, a reference may be sent to the
Department of Personnel and Training in the case of
members of the Indian Administrative Services, the
Police Division of the Ministry of Home Affairs in the
case of Indian Police Service and the Ministry of
Environment, Forest and Climate Change in the case of
members of Indian Forest Service.
Sd/-
(Rajiv Jain)
Under Secretary to the Government of India"
17. The contention of the writ petitioners-appellants
herein that Clause 2(i) made it clear that member of All India
Services who had been an employee in pensionable
establishment viz. Central/State Government or autonomous
bodies as on 31.12.2003 and appointed to All India Services on
or after 01.01.2004 with proper permission shall be covered
under the old non-contribution pension scheme in terms of the
Patna High Court L.P.A No.6 of 2025 dt.17-03-2026
office memorandum No. 28/30/2004 dated 28.10.2009 as has
been made applicable mutatis mutandis to members of All India
Services by the departmental letter No. 25014 dated 18.03.2013,
clarified the position that those who had been an employee in
pensionable establishment of the afore-noted bodies as on
31.12.2003 and appointed to All India Services on or after
01.01.2004 shall be entitled to Old Pension Scheme which came
into force on 01.01.2004. There is no doubt that the petitioners
were working in an autonomous body on 31.12.2003 but
admittedly as a casual employee on a daily wage basis. For the
first time, the services of the petitioners were absorbed vide
order dated 28.01.2004, and simultaneously by another order of
similar date i.e., 28.01.2004, Bihar College of Engineering was
taken over by National Institute of Technology, Patna.
18. We have also carefully perused the letter of
absorption of the petitioners which clearly said that all such
appointments shall be effective with effect from the date of
joining without benefit of their past services and such
stipulation has never been subjected to challenge. Since the
petitioners were working in CWRS, Bihar College of
Engineering as casual worker, in any view of the matter, they
cannot be said to be the members of All India Services, who had
Patna High Court L.P.A No.6 of 2025 dt.17-03-2026
been an employee in pensionable establishment. The learned
Single Judge has taken note of the aforesaid fact and it has
rightly concluded that no doubt the petitioners were working in
the autonomous body on 31.12.2003 but as a casual employees,
however, the petitioners were not appointed in All India
Services on or after 01.01.2004 and moreover the word
'absorption' denotes taking over the services of an employee in
the regular cadre/establishment, and in any view of the matter, it
is to be treated as fresh appointment, unless otherwise
specifically provided in the absorption letter.
19. In the case at hand, the absorption letter of the
petitioners clearly suggests that they were absorbed in the
services of Bihar College of Engineering with effect from
28.01.2004 but the same shall be treated as fresh appointment.
The services of the petitioners were also taken over by National
Institute of Technology, Patna with effect from 28.01.2004,
which is, admittedly after the cut off date on 31.12.2003. Since
the petitioners were working as causal workers on 01.01.2004,
in no circumstances they can be said to be working in a
pensionable establishment under the All India Services or
autonomous bodies. It is in this premises the parties have
entered into a compromise with a clear stipulation that the
Patna High Court L.P.A No.6 of 2025 dt.17-03-2026
petitioners shall not claim any benefit of their past services;
based upon which the Hon'ble Supreme Court has disposed of
the SLP in terms with such agreement.
20. So far the reliance placed by the learned Advocate
for the appellants on a decision rendered in the case of Vibha
Shukla (supra) is concerned, the issue involved therein was with
respect to applicability of U.P. Intermediate Education Act, 1921
viz-a-viz U.P. Municipal Corporation Act, 1959 in the matter of
appointment of respondent teachers before the Hon'ble Supreme
Court. The claim of the teachers were based on Section 108-
A(b) of the 1959 Act, which, inter alia, provided that
appointment of a teacher of an institution recognized in
accordance with 1921 Act, and maintained by the Municipal
Corporation should be made in accordance with the provisions
of 1921 Act. The Hon'ble Supreme Court after having
considered the statutory embargo contained in Section 108 of
1959 Act which clearly stipulated that such extension of service
must be treated to be a fresh appointment that too subject to the
condition that the appointment made under the said Section
would not in any case, continue beyond the end of educational
session during which such appointment made; while allowing
the appeal held that the prescription of 1921 Act has no
Patna High Court L.P.A No.6 of 2025 dt.17-03-2026
application to the facts of the case. The Hon'ble Court further
observed that 1959 Act, being a later Act, ordinarily would
prevail over 1921 Act. While adjudicating the aforesaid issue,
the Hon'ble Court has further observed that the regularization is
not a mode of appointment and this has also been re-enforced by
the Constitution Bench of the Apex Court in Secretary, State of
Karnataka vs. Uma Devi [(2006) 4 SCC 1].
21. The facts of the afore-noted case, with due regard,
has no application in the present case. It would be worth noting
here that the employees, who have engaged themselves as a
casual employee, being fully aware of the stipulation that they
had no right to continue in services or being regularized is
estopped from seeking absorption. The appointment by way of
absorption is regulated subject to the offer and terms and
conditions stipulated by the concerned authority. In the case at
hand, the offer accepted without any demur, which was finally
crystallized in the compromise arrived at between the parties
and in pursuance thereto, the lis has been finally disposed of by
the Ho'ble Supreme Court.
22. In view of the aforesaid facts and the settlement
arrived at by the parties before the Hon'ble Supreme Court, this
Court does not find any perversity in the impugned
Patna High Court L.P.A No.6 of 2025 dt.17-03-2026
order/judgment passed by the learned Single Judge.
Accordingly, the Letters Patent Appeal, being devoid
of merits, stands dismissed.
23. The parties shall bear their own cost.
( Harish Kumar, J)
Sangam Kumar Sahoo, CJ: I agree
(Sangam Kumar Sahoo, CJ)
Anjani/-
AFR/NAFR N.A.
CAV DATE N.A.
Uploading Date 18.03.2026
Transmission Date N.A.
