Garima Sachdeva v. Union of India & Ors.

26 May, 2011, W.P.(C)No.3827/2012, Ors. dated 2"''November,2012, WP (C) Na3834/2013, Ks.UnionofMia&Ors. 12 February, 2015, and W.P. Sinoh Vs. UOI & Orh., dated Naveen Kumar Jha Vs. UOIK

(C) No

Ors. in t Sinvlt & Ors. Vs. UOI& decinon ofthe High Court respondentno.2,namely,the Di had:ssued the office order da:ed:ondition that they would no ivas notwithstanding Rule 2 above, states that the old servants appointed on or before i fT ination,and interview. Thefinal results were and the 192petitioners were selected tojoin We may note that the respondents have filed:Pftition filed by Chandra Shelchar and others, the writpetition filed bySantosh KumarSingh.2810/2016, Inspector Rajendra ^ dated 27"^ March,2017. Pursuant to the le case ofParmanand Yadav (supra), the ector Generalofthe BorderSecurity Force 2016,aclmowledging thatthe mattirhad beenexaminedindejailandafterinler-Ministeriaiconsultation,.t hah been decided to impieUektthe order ofthe High Courtto extend ene.itofthe Old Pension Scheme to ailsimilarly situated Sub-Inspectors selecl'"'^ ^ J the ci This.[1] -e t rough CentralPoliceOrganizationsExamination,2002,'subjectto; be entitled to back wages and seniority, ofthe Pension Rules which, as noticed pension scheme would apply to government entral Police Forced, wei-e subjected to review rnedica October, 2004. On 2 'Ctitioners thcrGin were iijd i ! High ^discrimination and decisionsoftheDelhi would?r ' «dplea we he rat,o declared m the said cases. In Annas!.Sing!,(supra) the itmoners,whohad appledforthepostofAssistantCom a Central Police PomJ As'""'®'Commandant in the declaredtemporarily medically unfit and were |vaIuation in which they weredeclaredfiton fvemher.2004, which is 18 days after the aJ,,, f«. eandidates who were J-dfttatthefirstinsLieJoinedtheIndo-TihetanBorderPoliel! Aesistan.Commandants.fJerJwaspoexplanationastowhythecandidates Pweredeclared medicallyfiton M-Qctober,2014couldnotbeissued appointmentletterstill2""'hovimber 2004 Th- tp mvsferv and • a [ n a y y remained unexplained. Tie petitioner therein was issued appointment letter on|8- Ajgust,,2O0S, he. after nearly 10 T InllZ7'VT Y CommandZin asinn™ tl 'h-inwastreated TairLrrr ^ appa-ent fortb' T"" " ' was mino r '«ve c [ "° wasignoredandgivenago-byeand ^0 ''"®"<=''®matancesoverwhichthepetitionerhadnocontrol ie being.1!"177"' -—1.» mosel lower down in the m-Ht Uct; ^.n (_.' t)®en declared meditallyfitinthefirst-instJncJ.I„this context,theCourtheld ttatie missueofappointmentlettersasAssistantCommandantswasnotthe rejult of anything created by inc.ifference and negligence that the petitioner but was a result of a supine on part ofthe authorities. Thus,it was directed heseniorityoftheentiiebatchwouldbeonthebasisofmeritposition m the Select List irrespeetive ofthe date ofjoining. Direction was also.ssued to constitute a Revi w Departmental Promotion Committ.eefor the post of Deputy Cornmankant. The facts of the case are' squarely.sjnguishable.I,wasase,Jior|ty dispute,andtheinjusticeoftreatingthe petitionerhigherinthemeritlisjtasajuniortothoselowerinthemeritlist was.ruckdown.Fixing of enorityonthe basisofdate ofjoining,when' were intervening foituitois circumstances and faults on partofthe authoritieswasmviolationofandimpingingArticle14oftheConstitution.

8. In the ease of NaveW Kumar Jha (supra), the petitioner had participated in the SCC Coiibiiied Graduate Level Examination-2000 for selejtiontothepostofSub-lJspeetorinCentralParaMilitaiyForces. After aviiigclearedthewritteneximiliatiottandthePhysicalEfficiencyTest,he was Jeclared unfitin the medictlexamination,conducted on4"'February. 2002 ThepetitioneronZd'"pibruaiy.2002hadfiledanappealforbeingreexamined by the Review Medical nearly one year on 18"' January, Others, who were declared med Board,butthe examination was held after 2003 and he was thereupon declared fit. ickllyfitatthefirstinstance,hadjoinedthe respejtiveparamilitaDiforcesinllfarch.2003.However,thepetitionerwas appoijted as a Sub-Inspector in the CRPF only in April,2004 and was treatedasamemberoftheNev,PensionScheme. Refemngtothedecision ri/7c/i \ in Avinash Singh (supra) aiid 10028/2009,Amrenclra Kumar I held entitled to benefitofthe01 an earlier decision in W.P. (C) No. Rj. UOI& Ors.,thepetitionertherein was 9. siiT Jhc InthecaseoiParmanand Yadav(supra),theposition wassomewhat liarandthedecisionintlieiaidcase makesreference,toNaveenKumar pur the resLi CIS Ho'vi'i mo was with were nt e su])ra). The petitioners therein had applied nuanttotheadvertiteme|tjjublishedinEmploymentNewsin2002for post of Sub-Inspectors-:n the four Central Paramilitao- Forces. The Itsweredeclaredon28-July,2003and lettersofferingappointmentin,CRPFandIndo-TibetrnIlorderPolice wereissued in October,2003. and Avinash Singh h para: were the they Cons issued seiectgi entitle! Decer

10. is som Centri Howe a Old T m ine ver, in the case of-BSF,tl I ofDecember,2003.Due after January, 2004. ccordingly issued that.e letters ofappointment were issued in the.0 this delay,the date ofjoining in the BSF Ths New Pension Scheme was implemented effectfrom 1» January 2^04.Consequently,the petitioner therein denied benefitoftheOldPension SchemeastheyhadjoinedBSF,but othejs who had appeared in thlsameexamination and hadjoined o'ther ii^ilitaryforces,werecovtiec:undertheoldpensionscheme.Directions tie])etitioners therein must be given benefit of Pension Scheme,which wasin voguetill3V'December,2003,and as members of the New Pension Scheme. order dated 13^'' Janiar>:d through Central Polled he position in the case Df ewhat-similar.The petitione Police Organizations E ust not be treatled quently,the respondenti ujlon consideration,as noticed above,have, 2016, stating that the Sub-Inspectors Organizations Examination,2002 would be:d to benefitofthe Old Iension Scheme,which was in vogue till3H' iber,2003. i 'nspectorRajendraSingh & Ors.(supra) rs therein had applied and appeared in the xahiination,2002 for the post ofInspector. r, they- were declarec njiedically unfit, but were subsequently regai'd to the circumstances o noticed that the petitioners and knovm that by opting for the s ofth said

11. Raje rejec ection raised by the respondents in Inspector was delay and laches. The contention was scfimination.Noticeably,we may record that the authorities had in|the earlier cases, of Naveen Kumar Jha and Parmanand Yadav (supr,a)nottaken the plea ofdelay and laches. In these owing the ratio in Inspector Rajendra Singh he respondents to take the said plea in the circumstances, we should,fol and Ors. (supra), not allow present writ petition. A word ofcaution-on the question ofdelay and laches Scheme is contributory, as the Government is recjuired. The new Pension also even The e declared fit on medical examination by the Review Medical Board. Having the case, it was held to be grossly unfair and benefitofthe Old|Pens:orce. I One contention and obj ndraSingh and Ors.(sujira);ed, because ofparlous d: arbitrary to deny the petitioners benefit ofthe Old Pension Scheme because offortuitous circumstances wiich were beyond their control. There was an more.mate delay in holding ol the review medical examination. It was also ithers had opted for the BSF. If they had paramilitary force they would be deprived Scheme,they might not have opted for the aid on:ontributes to the pension fund which is maintained by a third party. Belated challenges,and claims after a decade would result h immense prejudice forthe positions have changed,and restitution jwould n( and impermissible under"the i which does not specify or fix e ten Government to retrieve their con tojbecoveredundertheOldPensionScheme )t be possible. This would be contrary to, ns of the statutory new pension scheme, stipulated return.It may be importantfor the ribution under the New Pension Scheme, mployees who are also covered under the New Pension Scheme would

12. On studied examination

13. Ceritral Police Organizatiorjis diffi;rent footing. None of the examination were issucjl appointment letters or hadjoined on or before 31 December,2003. The fact th hr or give them any righi condition or stipulation tr or before 31''DecembeJ:,20( con the at tjhe examination was held in 2003 would no miq litous. The criteria fixing do hot hold so. This is not cont Ors. 31" 200; A ha\eto abide bythetermsthereof.Theretracing ofsteps orturning backthe clopk may notbe possible. we feel the petitioners in the present writ pettions are not entitjed to saceeed and the writ petitions have to be dismissed,for in the present case there is no discrimination or violation of Article 14 ofthe Constitution. The cases relating to selection to the post of Sub-Inspector vide examination, 2003 stand altogether on a candidates who were successful in the said St t 'he cut-offdate of31"December,2003 and eating.government servants who hadjoined on. 3 £,s a separate class is not discriminatory and the date of joining and not the date of advertisement or written examination cannotbefaulted as discriminatory or inequitable and,therefore,contraryto Article 14.Therelied uponjudgments their ratio, finding and direction. A similar ed by this Court in Shailender Kumar & igli Registrar General& Am.,189(2012) mtion was raised and rejec Vs. Delhi High Courtthro DLl 524. The petitioners therein were issued appointment letters prior to December,2003,butthe actual date ofjoining was post31"December,. The contention was rej "2. The main ccintenlion of the petitioners is that the offer of. appointment having be inability to join the pos cted,inter alia,holding as under:en jmade to them prior to 1.1.2004 and their t by 31.12.2003 not being attributable to any t applying a new pension after promulgation,of Governmentto decide,in its wisdom,asto whetheritwanted to apply the new pension scheme to those who had entered service on or after 1.1.2004 or to-those posts ofLDC in DistHct promulgated by the Gov lapse on their part, the benefit of CGS (Pension) Rules, cannot be denied to theni....Tie Government was well within its right to discontinue the app icability of CGS (Pension) Rules, 1972 and scheme to those who were tojoin the service the new pension scheme. It was for the v^ho were offered appointment on or after 1.1.2004. The i Government having decided to discontinue the applicability ofGGS(Pdnsion)Rules and to extend the new pension scheme to all those who were to join service on or after 1.1.2004, irrespective ofthe date on which offer ofappointment was made to them,the petitioners do nothave any legalrightto claim applicability ofGGS(Pension)Rules,1972to them.It is not as ifthe new pension scheme.has beenJntrcduced after the petitioners hadjoined service of the Government. Th; petitioners were not in the service of the Governmentprior to i.1.2004 and,therefore,they had no rightto the Sessions Gourt, when the new scheme was srnment. Thus, this is not a case of service condition ofthe employees being varied by-the Government to their detriment. Even|if the petitioners could not join the sendee on or before 31.12.2003 on account ofno fault on their part that would make no difference since:the relevant.date is the date ofjoining the service and not the cate on which the employment was offered to them.Ifweacceptthe coiitentioh'thatthe offerofappointmenthaving been made to the petitioners prior to 1.1.2004,they are entitled to be governed by GGS (Pension) Rules, that would be contrary to the terms ofthe scheme fraihed by the.Government. We must take note ofthe factthat their necessarily has to be some time lag between the making of offerjfor appointment and the selected candidate joining the service of the Gevernment because medical examination and police verification must necessarily precede thejoining ofservice by him If the medical exaitination of some persons who are offered employment along with police verification was done before the medical examination and/or police verificatioli ofIhe were able to join|serv:ce account accrues to the he petitioners was conducted and/or their petitioners and consequently,those persons on or before 31.12.2003 no benefit on that petitioners since completion of medical examination and poIic(j v including the place wh dfication depends upon a lot of factors ere the candidate is residing, the hospital in which he is to be medievally examined,the date fixed by that hospital for medical examination,jthe time taken by the concerned police 3f the antecedents etc. If a person is offered official in verification W employment say in las benefit of CCS (Pension) required for his medickl therefore, it will not bi p' Governmenton or befoi^e 3 xxxx

5. However, in the case Court restraining the re eek of December, 2003, he cannot claim Rules because some time is necessarily ixamination and police verification and, )ssible for him to join the service of the 1.12.2003. bejfore us,there was no order passed by any.cbpondents from making appointments to the post ofLDC in District& Sessions Court. They were in a position to join seiwice soom aftir verification was complke Jr I their medical examination and police On the other hand, in the case ofDr. ' vnivx iictHLij HI LJLiC UctuL' Ux JL/I* Pawan Kumar N. Mali(supra), relief was granted to the petitioners. primarily applying the Drinciple that the order of the Court ca prejudice anyone. Had nnot th^re been no stay order in that case, the would have joined service prior to them,even their medical the cut-off date of Ol.C service, only because of hand, none of the peti verification in respect o respondents in that ckse 01.01.2004,since not only the-offer ofappointment had been made to examination-had been conducted well before,1.^004. They-were prevented from joining stay order granted by the Court. On the other:ioners before this Court could have been allowed to join service prior to 01.01.2004 since the character 31.12.2003. This judgment. all the three petitioners was received after before us. therefore, cannot be applied to the case

6. This is not the case ol or before 31.12.2003 was the part of the respond^ service on or before 31.] or to any order passed by taken by the Hospftal/Police in conducting medical examination and police verification,Hhe n the petitioners that their inability tojoin on s attributable to any negligence or lapse on mts. If inability of the petitioners to join.^003 is not attributable to the respondents a Court and was only on account ofthe time petitioners cannot claim parity with the

14. Vs. oftl An identical vievy has 'Vori/t DelhiMunicipal (DB),wherein reference e saidjudgment,it has be reasons given in the jirei writpetition and the same c "18. We are not jnclhed Administrative Tribunk, 28.06.2013 in OA No eding paragraphs, we find no merit in the is hereby dismissed." bedn taken in Sanjay Kumar Tltakur & Ors. Corporation ofDelhi& Ors.,236(2017)DLT was made to other case laws. In paragraph 18 en held: to.accept the reasoning of the Central Emakulam Bench in the decision dated • 224/2012,P. Rajesh Kumarv.The Union of India,which recordsthM benefit ofthe old pension scheme would be available to the applicint^ therein for the reason that the vacancies period prior to N'January, 2004..The „.fnadceptable in view ofthe prescribed cut-off date of[1].1.2004,with rfefejencetothe date ofJoining and notthe date of vacancies. The afordsaid criterion,,i.e. the date ofjoining, is not ar... Jg salutaiy and good reason. Courts but c Ibgi: annot substitute the said driterion with another criterion as has been done bythe Tribunalin thd caseofP.Rajesh Kumar(supra),wherein the date ofvacancy,it has been observed,would be the fair andjust criterion. This is irhpermissible and eannotbe accepted.The courts or lit "I o 1 1-1.-X.... 1. J "f * •€ -•.. judicial forums cannot ilat that the courts do hot of discretion and' within Legislature. The power]to pensionary benefits, a e and substitute dates. It is well-settled ir.terfere with cut-offdate as these are matters the domain of the Executive or the specify a date from which terminal or. the.case may be, shall take effect is concomitant ofthe power ofthe State or Corporation to change the conditions of service unilaterally. So long as the date specified is reasonable and not-wa5ward with reference to the requirement of fixing a point oftime et:., ho interference by the Court is called for. (SQeState of West Bengalv.Ratan Behari Dey(1993)4 SCC 62). When classification is permissible, choice of date being a basis of classification,the date so fiked cannot always be dubbed as arbitrary even ifno particular reajon is forthcoming for the choice unless it is shown to be capripious or] whimsical in the given circumstances, formula or logical way Legislature or its delega the date or point so (See Union of India v. 305 and A. Manjula Bhc Ltd.(2009)8 see'431). is made,the same has to is otherwise permissible is open to scrutiny • or 15: Othei"; & 0 cont eons and en Supp see 432). Further, it law that the name of a c to fix the same precisely, the decision ofthe te ijnust be accepted unless it can be said that fix Pa 'shi w: be an d is widely off the reasonable mark. mmeswamn Matchworks(1975) 1 See niv.A.P. Women's Coop Finance Corpn. lenever a law is enacted or an amendment with effect from a particular date. When it 1 legitimate to fix a date,the date so fixed the limited grounds of whimsicality and capriciousness. Ifthe cljioic:e made is burdensome to those to whom thewrongdoneissoughttojberectified,itwould beopentotheCourt to examine the choice of date and find out whether it has resulted in any discriminatiori. (SeeA Prabhakar Rao y.State of A,P.,\9%5 is a well-settled and accepted principle of andidate appearing on a select list would not give him an indefeasibld rightto appointment and it would be open to the Government to not fill lap the vacancies. The Government cannot be compelled to fill up vacancies where the decision not to do so is sound and rational, especially in.the case of direct recruits. (See Neelima Shangla v Manuv.f/O/(2013) 12 vac Punjab(2016)6 SCO 5^2) gap between the date of occasions,appointments a long delay." j ■When we turn to the v •s, Neeraj Kumar Sharma ijhers it is noticed that th tion that some cjther able (GD) in the BST pr i Haryana in October/No appointment letters were issu' of V. Ramana Murthy & Othe: State ofHaryana (1986) 4 SCO 268), Manoj SCO 111,Kulwinder Pal Singh y. State of. Thus, we would hold that there can be a ancy, selection and appointment. On some mdy not,be made at all or may be made after /rit petitions filed by V. Ramana Murthy & & Others, and Constable Welder Gopa Ram ! plea of discrimination is predicated on the candidates were selected for the post of rsuant to the recruitment rally held in Punjab verhber, 2003 and in the said cases, the td ip December, 2003. However, in the case s, advertisement for the Recruitment rally for appo and Thereafter, Recruitment rally the State ofAndhra Pradesh,Kariataka,Kerala,Tamil Nadu,Lakshadweep ondicherry States/Union Territoiy was published in August, 2003. was held in Bangalore in October, 2003 and ntmentletters were[issued on or after 1'^ January,2004. In the case of Others, advertisement was published in & 10 ^ October, 2003. After the selection process, appointment letters \^erb issued in February/March, 2004. In the case of Constable Neeraj I adveitisement published'in Se luijiar Sharma & Others pursuant to the ptember, 2003, recruitment rally was held in October/November,2003 at C^hhiwla,Najafgarh Road,Delhi. Thereafter, call letters were issued in Deceriber, 2003 and candidates were asked to appear before the Commandant cn 5"^ and lO"' January, 2004. The date of joinir g was subsequent,fo I denied benefit ofthe Old Pensi

16. not t Selection process does take le case of the petitioners Constable Welder Gopai Rair Augist/September, 2003 for[recruitment rallies to be held at SHQ,BSF Camjjus, Bikaner, Rajasthan on January, 2004. Thus, the petitioners were on Scheme. time for varied and different reasons. It is hat there was a deliberate delay in the selection process. There!could hi a variety ofadministrative and logistical reasons or causes for the time taken to complete the selection process and J vhibh we do not find isper se inordinate and 14 years,it would be impossible and unfair to give cogent explanation as to the reason apnointment letters took the time that it did. silent during the intervening period and had;hat they would be governed by the New, sparate advertisements, each initiating a issue the appointment letters, prolonged. Today after nearly ask the.respondents to offer and why the selection and issue of The fetitioners have remained apparently accepted the position Pension Scheme. There wer separite selection process.Exped of candidates subsequent to Haryana cannot be a ground _7£.tious and early selection and appointment pe viola;ion of parity. On being accepted and admitted thatthe the seniority ofthose selected Punjab and Haryana. The dal an e d determine inter se seniority. The is not the criterion. This being the recruitment rally held in Punjab and to urge that there was discrimination and asked, counsel for the petitioners have itioners have not challenged or questioned d appointed in the recruitment rally held in appl wou d not apply. In the said candidates,i.e. same selectior fjoining, as per Rules, is the criterion to late ofinitiation ofthe recruitment process the position, the ratio in Sanjay Kumar Thaicur & Ors. (supraj and Shailendra Kumar & Ors.(supra) would be cable.Theotherset'ofdecisions,which havebeen distinguished above, cases some officers from the same batch of prDcess hadjoined before 31.12.2003,butthe petfioner" for fortuitous reasons had joined later. Thus some candidates from the same selection prccejs were.given benefit of the Old Pension Sch(;me, but other candidates who could,not-join earlier for no fault of and were treated as members of the New position in the presentcase, abundant caution, we would observe and selected candidates belonging to the same thei •s, were denied the benefit Pension Scheme. This is not However, as a matter clarify that in case any of the the of selection batch have been gri the the petitioners have been deaiei,the petitioners would be entitled to raise said claim before the authDrities and, if denied the said benefit, can approachtheappropriateforumforrelief. Theaforesaid observationswould confer any right on the petitioners who are not being discriminated,in sensethatthey have been denied the benefitofthe Old Pension Scheme, not the ntdd benefit ofthe Old Pension Scheme,which whe: i.e. COVi

18. ■eas others appointed and oursuant to the same ad eredunder the oldpension With the aforesaid ob dismissed without any order as tc se serr sc. Sept NA/5 s lected through the same selection process, •verdsement and recruitment rally, have been leme. ations and caveat, the writ petitions are M*-:mber//,2017 sn costs. ' '{1^ (SANJIVKHANNA) JUDGE rf

(NAVIN CHAWLA) JUDGE