Ashok Kumar Sharma And Ors vs State Of Bihar And Ors

The petitioners have approached this Court for a direction to the respondents not to give effect to the New Pension Scheme as notified under memo

no. 690 dated 03.03.2006 of the Finance Department, whereby it has been declared that the persons appointed on or after 01.09.2005 shall only be

entitled to New Pension Scheme, namely, Contributory Provident Fund Scheme in terms of an Extra Gazette Notification No. 614 dated 18.11.2005.

It has been submitted that the appointments of the petitioners is against a panel which was prepared pursuant to an Advertisement No. 01/1990 and,

therefore, even if the appointment letters were issued to the petitioners after 01.09.2005, the same principle would apply which was applicable to the

candidates who were appointed out of the same panel pursuant to the same advertisement but prior to 01.09.2005.

A brief background of the cases of the petitioners need be stated.

In the year 1990, Advertisement No. 01/1990 was issued by the Bihar State Subordinate Selection Board for filling up vacancies in different

departments of the State of Bihar. The vacancies were not numbered and it was an open ended advertisement which included the anticipated

vacancies, which were required to be filled up on the basis of the 3rd graduate level competitive examination. Shortly, thereafter, a decision was taken

by the State Government to merge the Bihar State Subordinate Service Selection Board with Bihar Public Service Commission w.e.f. 28.02.1992.

Pursuant to such merger, the examination was conducted by the Bihar Public Service Commission against the same advertisement which was issued

by the Bihar State Subordinate Selection Board in the year 1990.

The Government of the day, on being questioned about the vacancies which were required to be filled up, suggested that any vacancies arising

between 1990 and 1993 were required to be filled up against the aforesaid advertisement of 1990. This was obviously based on the idea that initiating

a fresh selection process would be cumbersome and would result in delay in filling up of the vacancies. The first of the lists published by the Bihar

Public Service Commission came out in the year 1996 and amended list followed it in the year 1997. However, in view of the fact that not all posts

which had fallen vacant till 1993 were filled up by the aforesaid process, a writ petition vide C.W.J.C. 1376 of 1997 was filed seeking a direction for

filling up all the posts which had fallen vacant by the year 1996.

This Court, however, directed vide order dated 03.01.1998 that all the vacancies which had fallen vacant till 1993 be filled up within a period of six

months. Approximately, 731 posts were filled up but many posts which had fallen vacant between 1990-93 in various departments of the State of

Bihar were never notified to the Bihar Public Service Commission. There was another round of litigation for filling up of those vacancies and the

litigation bore fruit.

The various departments notified the existence of a number of vacancies which had arisen prior to 1993.

A reference may also be made to the decision in C.W.J.C. 9304 of 2009, in which, this Court had directed the respondents to fill up all the

vacancies, which arose before 1993 within one month from the date of passing of the order.

The appointments pursuant to the aforesaid order were made till the end of the year 2011, the petitioners being the last of such appointees against

those vacancies, which had fallen vacant prior to 1993.

In the meantime, as has been noted in the earlier part of the order, the State Government came up with the new Pension Rules. The petitioners did

not know that they have been subjected to the New Pension Rules.

Hence, the present petition.

It has been urged on behalf of the petitioners that in several judgments of the Supreme Court as also of this Court, it has been settled that the old

vacancies are governed by the old rules and any new rule which comes into force after the selection process has commenced, shall not be applicable

to the selection process which had commenced prior to coming of such new rules. So far as pension is concerned, it is a right and not a bounty, which

has been settled by several decision of the Apex Court as well as this Court and any change in the rule whereby pension is to be calculated has to

follow a definite pattern and cannot be discriminatory under any account. The rules of pension have to be in consonance with terms and conditions of

the service and the extant rules. If the petitioners are appointees of old selection process, they would be entitled to the Old Pension Scheme and

cannot be forced to submit to the New Contributory Pension Scheme which has come into effect since 01.09.2005.

Learned counsel for the petitioner has also submitted that by several decisions of this Court, the issue with regard to applicability of the pension

scheme has been decided and there is no scope for any departure from the said principle.

As opposed to the aforesaid contentions, learned counsel for the State has submitted that the appointment of the petitioners cannot be deemed to

be appointment prior to 01.09.2005 as claimed by them as it is a well settled principle of law that an appointment cannot be made retrospectively (refer

to 2003 (5) SCC 511 (Santosh Kumar vs. State of A.P.). It has further been submitted that the appointment of the petitioners was made pursuant to

the order dated 06.08.2009 in C.W.J.C. No. 9304 of 2009 in the year 2011. This was entirely a different set of appointment and the petitioners were

late entrants in service. Thus, the rules of 2005 which are the new Pension Rules ought to be applied to them. Not doing so would result in

perpetuation of something, which is neither desirable nor would be in public interest.

On a careful consideration of arguments advanced on behalf of the parties, it is very clear that for all practical purposes, the case of the petitioners

are similar to those who were selected earlier under the same selection process against the advertisement of 1990. Though the date of entry in service

is relevant but the new rules of pension would apply to only new entrants and the new entrants would be those whose appointment process would

have commenced after the formulation of new Pension Rules.

Though, it might sound rather anomalous that an appointee of the year 2011 is being treated differently than an appointee of the same year but

whose selection process began later than 2005 but the service jurisprudence dictates that all condition of service including pensionary benefits would

have to be in accord with the advertisement and terms of service conditions. The terms of service condition is inherent in the advertisement and in the

selection process. Thus, in a way, doctrine of relation back cannot totally be ignored in deciding the cases of the petitioners. The respective

departments of the Government ought to have taken note of the series of decisions in that regard and ought not to have left the matter in lurch for the

petitioners to approach the door of judiciary. This is what has been ordained in the Bihar Litigation Policy.

The case cited by the learned counsel for the State are not applicable to the facts of this case. In fact, on the contrary, in Raj Narayan & Ors vs.

the State of Bihar & Others (C.W.J.C. No. 20654 of 2010) and in Md. Kayumuddin Ansari & Ors. vs. the State of Bihar & Ors (C.W.J.C. No.

10901 of 2006), it has been held that the appointees of the same selection process shall be governed by the old Pension Scheme which was in

operation on the date of advertisement. The same line of reasoning has been followed in Rakesh Kumar & Ors. vs. the State of Bihar & Ors in

C.W.J.C. No. 14039 of 2014.

Considering the afore-noted aspects, this Court directs that the concerned authorities / respondents would abide by the principle delineated in the

decisions rendered in the afore-mentioned cases and shall treat the petitioners to be the appointees against the advertisement of 1990 and shall apply

to them the Pension Rules which were in currency at the time of the advertisement which is the Old Pension Rules and not the New Pension Rules

i.e. Contributory Provident Fund Scheme.

The writ petition stands allowed with in the terms which has been stated above.