Satya Dev Prajapati and Ors. v. Delhi High Court Through Its Registrar General and Anr.

16. She referred to the decisions of this Court in Shailendra Kumar and Ors. v. Delhi High Court (Through Registrar General) and Anr.16; Sanjay Kumar Thakur and Ors. v. North Delhi Municipal 16 W.P.(C) 2520/2012, decided on 03.05.2012 Corporation of Delhi and Ors.17; Union of India and Ors. v. Narayan Rao Battu and Ors. 18 in support of her contention that the petitioners had been selected on the basis of the results of the interview/viva voce conducted after the cut-off date of 31.12.2003, and were appointed thereafter. Therefore, they were not covered under the Old Pension Scheme. Reasons and Conclusion

17. At the outset, it is necessary to note that the petitioners do not assail the New Pension Scheme as being arbitrary or unreasonable. The entitlement to the post-retirement benefits, including pension, is a matter pertaining to the terms and conditions of the services. This is a matter between the employer and the employee. Subject to the governing laws, an employer is entitled to fix the emoluments on which it offers employment. The employee can accept the employment on the terms as offered or prior to his joining, negotiate for better terms. In any view, once an employer and employee agree to the terms, it is not open for either of them to thereafter question the same. This is, obviously, subject to the exception that the terms and conditions do not conform to any statute or applicable law.

18. As noted above, in the present case, the petitioners do not question the validity of the New Pension Scheme. It is not their case that the said scheme is contrary to any statute or law in force. They, 17 W.P.(C) 5828/2016, decided on 01.12.2016 18 W.P.(C) 10306/2016, decided on 27.03.2019 essentially, seek coverage of the Old Pension Scheme as the same is perceived as more beneficial. Once it is accepted that the New Pension Scheme is not invalid and the Central Government is entitled to offer employment on those terms, it follows that the petitioners, who were appointed on the terms and conditions as applicable on the date of their appointment, cannot question the same except on the ground that the same is contrary to any provisions of law.

19. According to the petitioners, denying the coverage of the Old Pension Scheme is discriminatory and falls foul of Article 14 of the Constitution of India. This Court finds no merit in the said contention. None of the employees, whose selection process was completed after 31.12.2003, have been extended the benefit of the Old Pension Scheme. Undisputedly, it is open for the Central Government to fix a cut-off date for the purposes of changing the terms and conditions relating to pension. Clearly, there is no reason to hold that the Central Government cannot fix the terms on which it hires employees.

20. Since pension is part of the terms and conditions of the services, the date on which an employee accepts his employment is relevant and it would be necessary to fix a cut-off date for that purpose. Considering that the persons who have accepted the employment have done so by accepting the terms and conditions of their service, which does not include entitlement of pension under the Old Pension Scheme, this Court finds no ground to fault the decision of the Central Government to offer a different pension scheme after the cut-off date.

21. The question whether the employees, who had joined the services pursuant to the appointment letters issued after 01.01.2004, are entitled to seek the benefit of the Old Pension Scheme was considered by a Coordinate Bench of this Court in Shailendra Kumar and Ors. v. Delhi High Court (Through Registrar General) and Anr.16. The petitioners in that case sought appointment to the post of Lower Divisional Clerk

(LDC) in the District and Sessions Court, Delhi. They joined their services in the month of February 2004. They claimed benefit of coverage under the Old Pension Scheme on the ground that the letters of offer of appointment had been issued prior to 31.12.2003 and they had accepted the same. They had joined their services after receipt of the verification report in respect of their characters, which were received some time in the months of January and February 2004.

22. They had, in support of their case, relied on the earlier decisions of this Court in Government of NCT of Delhi and Anr. v. Dr. Pawan Kumar N. Mali and Ors.19. The said case related to claims made by certain medical officers for being covered under the Old Pension Scheme. They had been appointed pursuant to recruitment process for filling up thirteen posts of medical officers. The results were declared and they were selected prior to 31.12.2003. They had accepted their appointment and also undergone the medical examination prior to the said cut-off date. Three out of the thirteen medical officers had joined the department on 20.01.2003. However, ten medical officers, who had filed the petition before the Central Administrative Tribunal, could not 19 W.P.(C) 5983/2010, decided on 03.02.2011 join the services in view of a status quo order dated 23.01.2003, passed by this Court in a petition filed by certain doctors who were appointed on contractual basis and were seeking regularization. The selected medical officers could join the services only after the interim order was vacated on dismissal of those petitions.

23. The Division Bench in Shailendra Kumar and Ors. v. Delhi High Court (Through Registrar General) and Anr.16 held that the decision in the case of Government of NCT of Delhi & Anr. v. Dr. Pawan Kumar N. Mali & Ors.19 was not applicable. This Court reasoned that in that case, the employees could not join the services because of the order passed by the Court and not on account of any negligence or lapse on the part of the respondents. This Court also applied the principle that no one can be prejudiced by an order of the Court. Thus, whilst the respondents (employees), in the case of Government of NCT of Delhi & Anr. v. Dr. Pawan Kumar N. Mali & Ors.19, were entitled to coverage under the Old Pension Scheme, no such benefit could be extended to the petitioners. Accordingly, this Court dismissed the petition filed by Shailendra Kumar and Ors. v. Delhi High Court (Through Registrar General) and Anr.16. The relevant extract of the said decision reads as under:

24. This Court is of the view that the decision in Shailendra Kumar and Ors. v. Delhi High Court (Through Registrar General) and Anr.16 had put the controversy to rest. In cases where a candidate joins the employment after the cut-off date (after 01.01.2004), he would not be covered under the Old Pension Scheme. This is, of course, subject to certain exceptions. In cases where a candidate is unable to join the service prior to 01.01.2004 for unjustifiable reasons attributable to the respondents, he may be entitled to be covered under the Old Pension Scheme. Similarly, in cases where some candidates from the same batch are able to join their services prior to 31.12.2003, whilst the appointment of the other candidates has been delayed due to no fault on their part, they may be entitled to claim parity, in respect of the terms and conditions of their services, with those who joined the services prior to 31.12.2003. They would, on principles of parity, be entitled to the coverage under the Old Pension Scheme. However, in absence of any such condition, a candidate, who joins his services after the cut-off date, would not be entitled to claim benefit of the Old Pension Scheme. Merely because the recruitment process had commenced before 31.12.2003 but culminated after the said cut-off date, is not a ground for an employee to claim that the terms and conditions of his services should be the same as applicable on the date when the recruitment process was commenced and not the date on which he accepted the appointment.

25. In Sanjay Kumar Thakur and Ors. v. North Delhi Municipal Corporation of Delhi and Ors.17, this Court, following the earlier decision in the case of Shailendra Kumar and Ors. v. Delhi High Court (Through Registrar General) and Anr.16, rejected a similar petition filed by Laboratory Assistants employed with the North Delhi Municipal Corporation. In that case, the said Corporation had requisitioned Delhi Subordinate Services Selection Board on 27.12.2002, to fill-up various posts including vacant posts of Laboratory Assistants. The advertisement inviting applications for filling-up the said vacancies was published on 05.06.2003. The written examination for selecting the candidates was conducted on 19.10.2003 and the results were declared on 29.10.2003. The dossier of the selected candidates was sent by the Delhi Subordinate Services Selection Board to the North Delhi Municipal Corporation on 06.11.2003. The offer of appointment was made to the selected candidates on 19.03.2004 and they joined the posts of Laboratory Assistants during the period between July 2004 to October 2004. The Court held that the delay in the issue of appointment letters was neither mala fide nor intentional. By the time the files were processed and appointment letters were issued, the New Pension Scheme became applicable and the petitioners (in that case) were not entitled to be covered under the Old Pension Scheme.

26. A similar view was expressed by this Court in the case of Union of India and Ors. v. Narayan Rao Battu and Ors.18. In that case, the Court allowed the appeal preferred by the Union of India against the decision of the Central Administrative Tribunal holding that respondent no.1 (applicant before the Central Administrative Tribunal) was entitled to the benefit under the Old Pension Scheme as the advertisement issued, pursuant to which he had applied, specifically stated that the benefit of added years of service as admissible under Rule 30 of the CCS (Pension) Rules, 1972 was applicable and therefore, it was apparent that he was entitled to the benefit of the Old Pension Scheme. The Tribunal had reasoned that “denying the benefit of old pension scheme to him (the applicant) would amount to changing the rules of the game in the midst of selection process and cannot be permitted.”

27. This Court did not agree with the aforesaid view and held as under:

28. This Court is of the view that the present case is squarely covered by the aforesaid decisions.

29. It is also necessary for this Court to refer to the decisions relied upon by the petitioners. The earliest decision which is relevant to the controversy is that of Amrendra Kumar v. Union of India & Ors.20 In that case, the petitioner had applied for appointment to the post of Sub- Inspector (GD) in the Central Police Organization pursuant to an advertisement issued by the Staff Selection Commission in the year

2002. He was successful in the written examination. Thereafter, by a letter dated 07.03.2003, he was called to appear for the Physical Examination Test on 03.04.2003. He was successful in that as well. He was called to present himself for his medical examination scheduled to be held on 04.06.2003. He was also informed that if he was found medically fit, he would be eligible to appear for an interview scheduled to be conducted on 05.06.2003. He was medically examined on 04.06.2003 and was also interviewed for the post. He was issued a letter dated 24.11.2003, informing him of his provisional selection for appointment to the post of Sub-Inspector (GD) in the CRPF. However, this letter also indicated that, his appointment was subject to a medical fitness examination, to be conducted by the appropriate medical authority on his reporting to the training centre. The petitioner reported 20 W.P.(C) 10028/2009, decided on 02.08.2010 to the Group Centre, CRPF, Pinjore on 22.12.2003 and his medical examination was conducted on 24.12.2003. However, things did not go smoothly thereafter. Apparently, his chest X-ray could not be done on account of non-availability of X-ray Film/Report. He requested in vain that he be permitted to get his chest X-ray done privately. The petitioner’s radiological examination was conducted in the month of April 2004 and he was declared medically fit on 27.04.2004. Thereafter, a formal letter was issued on 06.05.2004. It was the petitioner’s case that he had been discriminated against as there were at least five other candidates who had been appointed without conducting their radiological examination. The Court also noted that the petitioner was treated as an employee of the CRPF as he continued to reside in their mess awaiting his formal appointment. In the facts of this case, the Court held that the petitioner had joined the duty on 22.12.2003 and directed that a fresh letter of appointment be issued, informing him of his appointment with effect from the said date, that is, 22.12.2003. It was also directed that all consequential benefits would be available to him. This is not a case where an employee, who was appointed after the cut-off date, was extended the benefit of the Old Pension Scheme; it was a case where the employees’ appointment was held to be effective prior to the cut-off date of 31.12.2003. This decision is of no assistance to the petitioner.

30. Mr. Chibber had relied heavily on the decision of a Division Bench of this court in Naveen Kumar Jha v. Union of India and Ors.1. The said decision was rendered on 02.11.2012. At the outset, it is important to note that this decision was subsequent to the decision rendered in Shailendra Kumar and Ors. v. Delhi High Court (Through, which was delivered on 03.05.2012.

31. The said case related to the appointment to the post of Sub- Inspector in the Central Paramilitary Force. The petitioner in that case had applied for the said post and had cleared the written examination as well as the physical efficiency test. He was declared medically unfit on the basis of the medical examination conducted on 04.02.2002. He had filed an appeal to the Review Medical Board. On 18.01.2003, he was informed to appear before the Review Medical Board and he complied. He was examined and was declared fit. However, in the meantime, by the month of March 2003, other candidates from the same batch, who were selected, had joined the paramilitary forces allocated to them. The petitioner was called for the interview in the month of July 2003 and the letter offering him appointment as a Sub-Inspector in the CRPF was issued in the year of 2004. Clearly, the petitioner was prejudiced by the delay in conducting the review by the Review Medical Board. His batchmates had joined their services prior to him. He had lost out on his seniority as well as the consequent promotions. Whilst his batchmates were covered under the Old Pension Scheme, the petitioner had lost out on being covered under the Old Pension Scheme as well.

32. Given that the respondents (in that case) were responsible for the delay in holding the Review Medical Board, the Court found that the petitioners could not be prejudiced by the same. Accordingly, the Court held as under:

33. It is important to note that in its decision, the Court had referred to its earlier decision in Avinash Singh v. Union of India and Ors.21. The petitioners in the said case sought parity in seniority on the basis of their merit amongst their batchmates. The relevant extract of the said decision is set out below:

34. The controversy in Avinash Singh and Ors. v. Union of India and Ors.21 did not relate to the applicability of the Old Pension Scheme. It is apparent that the decisions in the case of Avinash Singh and Ors. v. Union of India and Ors.21 and Naveen Kumar Jha v. Union of India and Ors.[1] are based on the principle of parity between candidates from the same batch. Discriminating between employees from the same batch would offend Article 14 of the Constitution of India. The Court was of the view that there could be no discrimination inter se the candidates of the same batch merely on account of delay or fortuitous circumstances, for which the candidates were not responsible.

35. None of these two decisions were founded on the principle that the terms and conditions of the services, as applicable on the date of the commencement of the recruitment process, were sacrosanct and the candidates participating in the recruitment process were entitled to those terms. This principle is not well founded and finds no acceptance in the case of Naveen Kumar Jha v. Union of India and Ors.1.

36. The case of Parma Nand Yadav and Ors. v. UOI and Ors.[2] related to recruitment pursuant to an advertisement issued by the Staff Selection Commission in the Employment News published on 09.11.2002 - 15.11.2002, to fill-up the post of Sub-Inspectors in the four paramilitary forces [Border Security Force (BSF), Central Industrial Security Force (CISF), Central Reserve Police Force (CRPF) and Indo Tibetan Border Police (ITBP)]. The result of the selection was declared on 28.07.2003. Depending on the option exercised by various candidates for the services as well as the merit positions, candidates were allocated to various paramilitary forces. The appointment letters in respect of those candidates, who were allocated BSF, were issued in the month of December 2003. In case of other paramilitary forces, letters of offer were issued in the month of October 2003. The petitioners in that case were issued letters offering appointment after a delay of three months. In the given facts, the Court held that the decision in the case of Naveen Kumar Jha v. Union of India and Ors.[1] and Avinash Singh and Ors. v. Union of India and Ors.21 was applicable and for the reasons stated in the said decisions, the petition was allowed. The operative part of the said decision reads as under:

37. In Inspector Rajendra Singh and Ors. v. UOI and Ors.3, the advertisement for recruitment was issued by the Staff Selection Commission in the Employment News of 09.11.2002-15.11.2002. The competitive examination for recruitment in the paramilitary forces (BSF, CISF, CRPF and ITBP) was held on 12.01.2003. The petitioners were successful in the competitive examination and were called to undergo the physical efficiency test. They were, thereafter, directed to appear for medical examination before the Medical Board on various dates from the months of April to June 2003. Petitioner no.1 was declared medically unfit and he appealed to the Review Medical Board. The appointment letters to various candidates were issued on various dates. Most of them were issued prior to 31.12.2003. The Sub- Inspectors selected to serve with the BSF were directed to join in the month of January 2004. Resultantly, they were deprived to the benefit of the Old Pension Scheme. Those petitioners who had appealed against the decision of the Medical Board were directed to appear before the Review Medical Board after six months of applying for a review. They were declared fit and were called to appear for the interview before the Staff Selection Commission on 22.04.2004 and were finally issued letters offering appointment in the month of March 2005, that is, after a delay of eleven months. The Court held that if there was delay in declaration of the results or issuance of letters of appointment, the incumbents are not to suffer. The Court also held that “there can be no discrimination between batchmates, only because some were, at the time of appointment, informed that the New Pension Scheme would apply, while others were not”. The Court referred to the earlier decisions in the cases of Naveen Kumar Jha v. Union of India and Ors.[1] and Parma Nand Yadav and Ors. v. UOI and Ors.[2]

38. As is apparent from the above, none of the aforesaid decisions is an authority for the proposition that the terms and conditions of the services, as applicable on the date of advertisements for recruitment, would necessarily apply.

39. In a later decision rendered on 12.02.2019, a Division Bench of this Court disposed of two petitions: Tanaka Ram and Ors. v. Union of India and Ors.[4] and HC/RO Ravikant Chaudhary and Ors. v. Union of India and Ors.[5] The petitioners in those cases had applied for recruitment in BSF pursuant to an advertisement issued in the month of August 2003. The Court noted that a Notification dated 04.08.2003 was issued by the Ministry of Home Affairs directing the Director General, BSF to complete the entire recruitment process by 31.10.2003 so that the selected candidates could be dispatched to the training centres before 15.12.2003. The petitioners were issued call letters for joining services in the month of February 2004. The Court found that there was a delay on the part of the respondents. The Court noted that the Central Government, Ministry of Home Affairs had issued an office memorandum accepting the delay on their part and extending the benefit of being covered under the Old Pension Scheme on that basis to various candidates and had referred to the decision of this Court in the case of Parma Nand Yadav and Ors. v. UOI and Ors.[2] Notwithstanding that the letters of appointment had been issued in the month of February 2004, the Court held that the benefit of the Old Pension Scheme was required to be extended to the petitioners. This was for the reason that the BSF itself had accepted that such benefit was required to be extended to those who had been selected in the exam conducted in the year of 2003. The operative part of the said decision is set out below:

40. In Shyam Kumar Choudhary and Ors. v. Union of India and Ors.6, this Court referred to the decision in the case of Tanaka Ram and Ors. v. Union of India and Ors.[4] and held that the benefit of the Old Pension Scheme is required to be extended to those who had been selected in the examination conducted in the year of 2003. In Shyam Kumar Choudhary and Ors. v. Union of India and Ors.6, the Court also found that the reason for the petitioners not joining the services prior to month of January 2004, was solely attributable to the respondents. The Court articulated the reasons for allowing the petitions in the following words:

41. In a subsequent decision in Niraj Kumar Singh and Ors. v. Union of India and Ors.7, the Division Bench, following its earlier decisions in Naveen Kumar Jha v. Union of India and Ors.1, Parma Nand Yadav and Ors. v. UOI and Ors.2, Tanaka Ram and Ors. v. Union of India and Ors.[4] and Shyam Kumar Choudhary and Ors. v. Union of India and Ors.6, allowed the said petition. This Court also allowed a similar petition in the case of Chander Veer Singh and Ors. v. Union of India and Ors.[8] in almost identical terms as the decision in Niraj Kumar Singh and Ors. v. Union of India and Ors.[7] The case of Dr. Davinder Singh Brar v. Union of India and Ors.[9] was also disposed of on a similar reasoning.

42. Similar writ petitions, Ithape Pandit Kisanrao and Ors. v. Union of India and Ors.10 and Vipul Pandey and Ors. v. Union of India and Ors.11 were disposed of by a common order dated 06.11.2020 by observing that the cases were covered by the earlier decision in Shyam Kumar Choudhary and Ors. v. Union of India and Ors.6.

43. This Court also disposed of a batch of sixteen similar petitions, SI/MIN M.R. Gurjar and Ors. v. Union of India and Ors. and Other Connected Matters12, filed by the petitioners who were Personnel Below the Officer Rank (PBOR) in Paramilitary Forces (BSF, CISF, CRPF and ITBP), by a common order dated 15.01.2021. The Court found that these cases was covered by the earlier decision in the case of Shyam Kumar Choudhary and Ors. v. Union of India and Ors.[6]

44. Mr. Chibber had laid much emphasis on the said judgment and had drawn attention to the observations of the Court to the effect that the petitioners could not be deprived of the benefit of the Old Pension Scheme, having regard to the fact that the advertisements/notifications were issued in the months of September 2003 and June 2003. Paragraph nos. 13 and 14 of the said order are relevant and are set out below:

45. It is clear from the above that whilst the Court had observed that the advertisements / notifications for recruitment had been issued prior to 31.12.2003, the Court had also noted that the batchmates of the petitioners had been granted the benefit of the Old Pension Scheme. The reading of the judgment also clearly indicates that it is founded solely on the earlier decisions of this Court in Shyam Kumar Choudhary and Ors. v. Union of India and Ors.6, Niraj Kumar Singh and Ors. v. Union of India and Ors.[7] and, Tanaka Ram and Ors. v. Union of India and Ors.[4]

46. It is material to note that the decision in the case of Sanjay Kumar Thakur and Ors. v. North Delhi Municipal Corporation of Delhi and Ors.17 and of Union of India and Ors. v. Narayan Rao Battu and Ors.18 had not been discussed in any of the cases cited by the petitioners. Further, none of the decisions except the decision in Tanaka Ram and Ors. v. Union of India and Ors.[4] was referred to in the decision of this Court in Shailendra Kumar and Ors. v. Delhi High Court (Through Registrar General) and Anr.16 In Tanaka Ram and Ors. v. Union of India and Ors.4, this Court had distinguished the decision in the case of Shailendra Kumar and Ors. v. Delhi High Court (Through Registrar General) and Anr.16 on the ground that the BSF had itself accepted the decision in the case of Parma Nand Yadav and Ors. v. UOI and Ors.[2] and had extended the benefit of the Old Pension Scheme to the petitioners. Paragraph 14 of the order, which sets out the reasons why the decision in the case of Shailendra Kumar and Ors. v. Delhi High Court (Through Registrar General) and Anr.16 was held inapplicable in the facts of that case reads as under:

47. It is clear from the above analysis that the petitioners rely upon cases that follow the decision in the case of Naveen Kumar Jha v. Union of India and Ors.1, which in turn referred to the decision in the case of Avinash Singh and Ors. v. Union of India and Ors.21 As noted above, the decision in Naveen Kumar Jha v. Union of India and Ors.[1] was based on the principle that there could be no discrimination between a batch of candidates that participated in the given recruitment process. On the principles of parity, the Court did not accept that the benefits of the Old Pension Scheme would be available to some of the candidates and not to others for no reasons attributable to them. It is also material to note that all of the cases referred to by the petitioners were essentially cases pertaining to recruitment to the paramilitary forces. The controversy in these cases had arisen largely on account of a delay in the petitioners joining their services either because the letters of joining had been issued later or a delay in the completion of the procedure for their medical fitness, which had placed them in a disadvantageous position vis-a-vis other similarly placed candidates. It was also found that there was a difference in the dates of issuing appointment letters to candidates based on the paramilitary service to which they were appointed.

48. In Tanaka Ram and Ors. v. Union of India and Ors.4, the Court was persuaded to allow the petition also on the reason that the BSF had acknowledged the fault on its part in processing the applications and had extended the benefit to certain candidates who had been appointed after the cut-off date.

49. This Court is unable to accept that any of the aforesaid decisions is an authority for the proposition that the date of the advertisements inviting applications for appointment to various posts would be determinative of the terms and conditions of service applicable to the appointees; or that the decision of the Central Government to fix a cutoff date of appointment in joining employment for implementing the change of pension policy is arbitrary, unreasonable and falls foul of Article 14 of the Constitution of India. Absent any agreement to the contrary, the terms and conditions of service, as in vogue on the date when the parties (employer and employee) enter into the contract of employment, would be applicable and not on the date when the selection process commences. In the present case, the petitioners cannot complain of any discrimination; the petitioners have not been treated differently to the candidates from the same batch. Thus, none of the decisions, as cited by the petitioners, are applicable in the facts of these cases.

50. Before concluding, it is also relevant to refer to the impugned OM. The relevant extract of the same is set out below: