Gujarat High Court
Chetankumar Ambalal Gandhi vs State Of Gujarat on 8 March, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/8832/2019 CAV JUDGMENT DATED: 08/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8832 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10248 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10246 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 8833 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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CHETANKUMAR AMBALAL GANDHI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
for the Petitioner(s) No.
10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,4,5,6,7,8,9
MR. SHALIN MEHTA, SENIOR COUNSEL WITH MR VIMAL A
PUROHIT(5049) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,4,5,6,7,8,
9 in SCA NO.8832 of 2019 and SCA No. 8833 of 2019.
MR. G.M.JOSHI, SENIOR COUNSEL WITH MR. VYOM SHAH, ADVOCATE
for the Petitioners(s) in SCA NO.10246 of 2019 and SCA No. 10248 of 2019
MS. NIDHI VYAS, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2 in all matters.
NOTICE SERVED BY DS for the Respondent(s) No. 3
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Page 1 of 21
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C/SCA/8832/2019 CAV JUDGMENT DATED: 08/03/2022
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 08/03/2022
CAV JUDGMENT
1 Rule returnable forthwith. Ms. Nidhi Vyas, learned AGP, waives service of rule on behalf of the State-respondents. 2 In these petitions under Article 226 of the Constitution of India, the prayers of the petitioners is to issue a writ of mandamus or any other appropriate writ, order, or direction, holding that the new defined pension scheme is not applicable to the present petitioners. The prayers of the petitioners is that the petitioners are entitled to for the benefits under the old Pension Scheme / GPF.
3 For the purposes of brevity, facts of Special Civil Application No.8832 of 2019 are discussed.
3.1 An advertisement for the posts of Class-I and Class-II services under the Government of Gujarat was issued by the Gujarat Public Service Commission on 30.10.2000. Amongst other conditions enumerated in the advertisement, one such condition was that the appointees shall be governed by the GPF. It is the case of the petitioners that after the advertisement was issued in the year 2000, after having undergone a selection process through written examinations and oral Page 2 of 21 Downloaded on : Tue Mar 08 21:54:37 IST 2022 C/SCA/8832/2019 CAV JUDGMENT DATED: 08/03/2022 interviews, the final list of selected candidates was given by the Gujarat Public Service Commission on 30.10.2004. A lot of time went into finalizing and finishing the administrative process relating to appointments and the appointment orders were issued on 29.07.2005 (Special Civil Application No. 8832 of 2019), 28.6.2005 (SCA No.8833 of 2019), 10.06.2005 (SCA No.8834 of 2019 ), 29.07.2005 (SCA No. 10246 of 2019) and on 25.08.2005 (SCA No.10248 of 2019). 3.2 It is the case of the petitioners that they were informed by a letter of 06.11.2004 that the final recommendations were sent to the Government, notified on Official Gazette on 02.12.2004. That Notification in the government gazette being prior to 01.04.2005, it is the case of the petitioners that they are entitled to the benefit of the old pension scheme / GPF.
3.3 It is averred in the petition that the Chief Minister accorded sanction to the appointments as is evident from the notings on 17.02.2005. The decision was taken on 13.05.2005 and therefore, even if such appointment orders were issued post 01.04.2005, the fact that the decision making process had been undertaken their, appointments should relate back to a date pre 01.04.2005 and they be governed by the Old Pension Scheme.
3.4 Circulars of the Government dated 16.01.1969, 27.05.1982 and 30.07.1983 are annexed to the petition in support of the submission of the Page 3 of 21 Downloaded on : Tue Mar 08 21:54:37 IST 2022 C/SCA/8832/2019 CAV JUDGMENT DATED: 08/03/2022 petitioners that the entire process of selection and appointments has to be finished within two months which period was subsequently extended to a period of six months and therefore the government should not have taken more than six months in their appoinitments thereby making them ineligible for the benefits of the old pension scheme but having made them amenable to the new pension scheme namely the new CPF Scheme vide communication dated 18.03.2005. Representations made by the petitioners are on record.
4 I have heard Mr.Shalin Mehta, learned Senior Advocate and Mr.Gautam Joshi, learned Senior Advocate with Mr.Vimal Purohit and Mr.Vyom Shah and Ms.Nidhi Vyas, learned AGP for the State. Learned Senior Counsels for the petitioners have made the following submissions:
4.1 The vacancies were notifed on 30.12.2000. The Notification by the GPSC was issued on 01.09.2004 selecting candidates. On 30.10.2004, GPSC recommended the appointments to the State Government. A Notification for appointing the petitioners was published in the official gazette on 02.12.2004. Therefore, according to the learned counsels the right to receive pension under the Old Scheme accrued on 30.12.2000.
Even if that date is not taken into account, the date at least should be taken as 02.12.2004 on which date the GPSC published the Select List in the Gujarat Government Gazette. In the submission of the learned Page 4 of 21 Downloaded on : Tue Mar 08 21:54:37 IST 2022 C/SCA/8832/2019 CAV JUDGMENT DATED: 08/03/2022 counsels since these two dates fall within the cut off date which is 01.04.2005, the petitioners have legitimate expectation to receive pension under the old scheme which was enforced prior to 01.04.2005. 4.2 Learned counsels for the petitioners would submit that the Government of Gujarat had issued a Circular dated 16.01.1969. According to this Circular, it is directed by the Government that in respect of the Commission's recommendation for appointment to the posts by direct selection, the required action like verification of character and antecedents and medical examination of the candidates and offer of appointments should be completed within two months from the date of the Commission's recommendation and the Commission is informed of the action taken. In the submission of the learned Counsels for the petitioners, the GPSC recommended the names of the petitioners for appointment from the final select list of 30.10.2004. Two months from 30.10.2004 would get over on 29.12.2004. Subsequent circulars of 12.01.1970, 27.05.1982 and 30.07.1983 clearly stipulate completing the procedure within two months which time was then extended by a period upto six months. The learned counsel for the petitioners would submit that administrative instructions mandating the respondents to complete the recruitment process within the stipulated time can be enforceable by a writ of mandamus as the same is binding on the State Government. The delay caused by the State cannot act to the disadvantage of the Page 5 of 21 Downloaded on : Tue Mar 08 21:54:37 IST 2022 C/SCA/8832/2019 CAV JUDGMENT DATED: 08/03/2022 petitioners.
4.3 Learned counsels for the petitioners would submit that from the affidavit-in-reply filed by the State, it is clearly admitted by them that the delay in issuing appointment orders is attributable to the General Administration Department. This, in their submission vindicates the stand of the petitioners that they are not at fault and the delay has occurred only by virtue of the State Government scrutiny. The stand of the State, therefore, to apply the benefits of the New Pension Scheme when the advertisement clearly stipulated that the old pension scheme would be applicable is bad.
4.4 Learned Counsels for the petitioners would further submit that when the Hon'ble the Chief Minister approved the appointment of all the petitioners in the month of Februrabry 2005, there was no reason on the part of the State to further delay appointment process by a period of four months. This factor of delaying the appointment on the ground that the approval of the Chief Minister was taken for a second time cannot be used against the petitioners as being a case of appointment after 01.04.2005.
4.5 It is the case of the petitioners that there have been specific cases where the GPSC issued advertisements and appointments and the entire selection process was executed before 01.04.2005. Despite the higher number of appointees, GPSC was in a position to complete the whole Page 6 of 21 Downloaded on : Tue Mar 08 21:54:37 IST 2022 C/SCA/8832/2019 CAV JUDGMENT DATED: 08/03/2022 process timely before 01.04.2005. In the present case, the recruitment was for a lesser number of appointees which the GPSC could not complete which appears to be unreasonable.
4.6 The other submission of the learned counsels is that the basic terms and conditons of service such as right to receive pension upon superannuation as applicable at the time of notification of the posts cannot later be altered to the prejudice of the incumbents to the posts after commencement of the selection process. The petitioners counsel has relied on the following decisions:
(i) Mahesh Narayan & Ors vs. State of Uttar Pradesh & Ors., reported in AIR online All 2236.
(ii) Firangi Prasad vs. State of UP & Ors., reported in 2010 Law Suit (all) 2842.
(iii) Ashutosh Joshi & Ors vs. State of Uttarakhand & Ors., rendered in Writ Petition (S.S) No. 1170 of 2010.
(iv) Balwant Singh & Ors vs. State of Uttarakhand & Ors., rendered in Writ Petition No.944 of 2011 (S/S).
(v) State of Uttarakhand & Ors vs. Balwant Singh & Ors., rendered in Special Appeal No. 330 of 2013.
(vi) Inspector Rajendra Singh & Ors vs. Union of India & Ors., rendered in Writ Petition (C) No.2810 of 2016.
(vii) Union of India & Ors vs. Inspector Rajendra Singh & Ors., Page 7 of 21 Downloaded on : Tue Mar 08 21:54:37 IST 2022 C/SCA/8832/2019 CAV JUDGMENT DATED: 08/03/2022 rendered in I.A No. 138477 of 2017 vide order dated 08.01.2018.
(viii) Government of National Capital Territory of Delhi & Ors vs. Ajay Kumar & Ors., rendered in Writ Petition (C) No. 838 of 2016.
(ix) Government of National Capital Territory of Delhi & Ors vs. Ajay Kumar & Ors., rendered in I.A. No. 81633 of 2019.
(x) Swaran Singh Chand vs. Punjab State Electricity Board & Ors., reported in 2009 (13) SCC 758.
5 Ms.Nidhi Vyas, learned Assistant Government Pleader, would submit as under:
5.1 She would submit that there is a certain distinction between actually giving advise for appointments and the appointment itself. These are two different events. The date of appointment is the relevant date for the purposes of granting the benefits and the date of the advertisement or the date of the advise to the Government by the Commission is merely a recommendation to the government for appointment and is not an actual appointment.
5.2 Ms.Vyas, learned AGP, would submit by referring to an advertisement that the whole process would culminate into issuing an appointment order after the process of selection of candidates, results being published and after the satisfaction of the Government. Mere passing of the examination would not create right of appointment. She Page 8 of 21 Downloaded on : Tue Mar 08 21:54:37 IST 2022 C/SCA/8832/2019 CAV JUDGMENT DATED: 08/03/2022 would rely upon the relevant lines of clause 20 and submit that the General Provident Fund was made applicable to the petitioners after the appointment as per rules. The petitioners were aware that mere passing of the examination and publication in the Gazette would not confer any right to appointment.
5.3 She would further submit that the names of successful candidates were published in the official gazette first on 01.09.2004 and then on 02.12.2004. Note one and two of these notifications clearly enumerated that mere publication of the names does not confer any right of appointment to the petitioners. The appointment orders were issued on 29.07.2005 which is admittedly post the cut off date of 01.04.2005. Once the petitioners were appointed after 01.04.2005, the new pension scheme dated 18.03.2005 would be applicable.
5.4 Reliance according to Ms.Vyas, by the petitioners upon clause 20 of the advertisement is misconceived. She would submit that merely because a right to selection accrued by virtue of the advertisement, their appointments made after 01.04.2005 would relate to that date and not to the date of the advertisement and therefore the new CPF scheme will be applicable.
5.5 With regard to the delay by the respondents in the procedure of appointments, Ms. Vyas, learned AGP, would draw the Court's attention to the relevant recitals in the affidavit and submit that the process of Page 9 of 21 Downloaded on : Tue Mar 08 21:54:37 IST 2022 C/SCA/8832/2019 CAV JUDGMENT DATED: 08/03/2022 verification of documents went on for some time when it was found that three candidates were ineligible due to invalid caste certificates and therefore, the files went back and forth to the Ministry and thereafter for the approval of the Chief Minister which caused some procedural delay and such delay would not ipso facto and automatically confer any right upon the petitioners for the grant of the benefit from the date of advertisement. Ms.Vyas, would further submit that merely because the Commission issued a letter asking for the status on 28.03.2005, itself would not be interpreted as a direction by the Commission on completion of the procedure.
5.6 She would submit that the Circulars relied upon by the petitioners, are in the nature of guidelines and no mandamus can be issued for the breach of such guidelines which are matters of policy. She would further submit that judicial review in policy decision of the State Government is limited and the Court may not entertain the petition under Article 226 of the Constitution of India. In support of her submissions, she would rely on the following judgements:
(i) State of Uttar Pradesh vs. Dinesh Kumar Sharma., reported in 2007 (1) SCC 683.
(ii) Union of India vs. V. Ilmo Devi, reported in AIR 2021 SC 4855.
(iii) New Okhla Industrial Development Authority vs. B.D.Singhal., reported in AIR 2021 SC 3457.Page 10 of 21 Downloaded on : Tue Mar 08 21:54:37 IST 2022
C/SCA/8832/2019 CAV JUDGMENT DATED: 08/03/2022 6 Having considered the submissions made by the learned advocates for the respective parties, and on perusal of the advertisement what is evident is that the advertisement states that the General Provident Fund Scheme shall be applicable only after appointments are made. The Clause (qualifies it "in accordance with rules"). Clause 19 of the advertisement clearly stipulates that for the purposes of appointment, merit shall be considered. Merely by appearing in the examinations and being rendered successful will not give the candidate the right to appointment. The candidate selected and recommended for appointment shall be considered by the Government after due verification and in case of the Government not being satisfied the candidate shall not be appointed.
6.1 Even on reading the notifications dated 30.10.2004 and 01.09.2004, what is evident is that the candidates who had appeared for the combined competitive examinations for recruitment to the posts which examination was held in June 2002, and the interviews held on 03.05.2004, 26.07.2004 and 30.08.2004 were declared successful and listed in such notification. The note below the Notification reads as under:
"Note:-
1. The mere success in the examination shall not confer any right to appointment and no candidate shall be appointed to the post unless the Government is satisfied. After such inquiries as may be considered necessary that the candidate is suitable in all Page 11 of 21 Downloaded on : Tue Mar 08 21:54:37 IST 2022 C/SCA/8832/2019 CAV JUDGMENT DATED: 08/03/2022 respects for appointment to the post.
2. The order of preference for the post indicated by the candidate shall not confer any right for appointment to these posts.
Having regard to the rank in the order of merit and the number of posts available, the preference given by the candidate shall be considered by the Government at the time of his appointment. Where a candidate has not given preference for any post, or the candidate has given preference only for a few posts, and the number of posts for which he has given preference are not availbale to accomodate the candidate as per his preference, such candidate shall be considered for appointment to any of the remaining post after the process of appointment of the other candidates, who have given preference for all these scheduled posts is completed.
The candidates at merit numbers, 7, 10, 21, 31, 32, 42, 44, 54, 58, 60, 65, 67, 68, 75, 76, 79, 80,82,84,85, 90,91,95,96,97,103,106,107,109,112,119,122,124,126 and 130 who are reserved category candidates have been considered for unreserved posts as per Government Circular, G.A.D No. - PVS- 1099-MM-13-G4 dated 29/01/2000 and PVS-1020-03-G2 dated 23/07/2004.
Widow candidates have been given the benefits of Notification G.A.D No. -CRR -1096-2213-G2 dated 22/05/1997.
The above result is subject to the outcome of SCA No.4889/2004 pending in the High Court of Gujarat.
The above result is subject to revision after rechecking of marks of those candidates who apply within 45 days from the date of this Notification for rechecking of marks of the Main Written Examination."
6.2 Even when the Final List was to be published, the Gujarat Public Service Commission in its letter dated 06.11.2004 unequivocally stated while informing a candidate that no further correspondence be entertained with the Commission. The documents with regard to educational qualification, experience, caste regarding creamy layer, age, citizenship have been provisionally accepted by the Commission based on which the Page 12 of 21 Downloaded on : Tue Mar 08 21:54:37 IST 2022 C/SCA/8832/2019 CAV JUDGMENT DATED: 08/03/2022 recommendations have been made. The State Government shall examine these documents and after due consideration and verification subject to the candidate fulfilling all the conditions of the advertisement an appointment letter shall be issued. The final notification published in the official gazette on 02.12.2004 also when read, reiterated the note of the earlier notification. The notes read as under:
"Note:-
1. The mere success in the examination shall not confer any right to appointment and no candidate shall be appointed to the post unless the Government is satisfied. After such inquiries as may be considered necessary that the candidate is suitable in all respects for appointment to the post.
2. The order of preference for the post indicated by the candidate shall not confer any right for appointment to these posts.
Having regard to the rank in the order of merit and the number of posts available, the preference given by the candidate shall be considered by the Government at the time of his appointment. 6.3 Based on the sequence of events, the dates need to be reproduced, which is as under:
30.12.2000: Advertisement for the posts of Class 1 and Class 2 officers for serving the Government of Gujarat was advertised by the Respondent No.3, Gujarat Public Service Commission.
30.10.2004: The final list of selected candidates was given by Respondent No.3 to the Government of Gujarat only on 30.10.2004. 6.11.2004: The petitioners were informed that final recommendation with their names has already been sent to the Government by the Page 13 of 21 Downloaded on : Tue Mar 08 21:54:37 IST 2022 C/SCA/8832/2019 CAV JUDGMENT DATED: 08/03/2022 respondent No.3-GPSC.
02.12.2004: The names of the petitioners as well as the similarly situated candidates came to be published in the government gazette. It is noteworthy that there has to be sanctity of the list published in the official gazette. The said aspect clearly reveals that even if the date of publication in the official gazette is considered, the same was prior to 1.4.2005. 28.01.2005: The noting on file came to be made for the first time for allotment to the concerned departments.
17.02.2005: Second noting came to be recorded in the files of the respective authorities for allotment of department. 28.03.2005: The GPSC requested GAD to furnish details as to whether appointments were made taking into consideration their recommendation dated 30.10.2004.
08.04.2005: From the noting dated 8.4.2005 that on 17.2.2005 the Hon'ble Chief Minister accorded his sanction on file for allotment of such department.
09.05.2005: The re-allotment of department came to be done whereby the Hon'ble Chief Minister accorded his consent for appointment of 249 candidates.
13.05.2005: The decision came to be taken to allot the different departments.
29.07.2005: The final appointment letter came to be issued to the Page 14 of 21 Downloaded on : Tue Mar 08 21:54:37 IST 2022 C/SCA/8832/2019 CAV JUDGMENT DATED: 08/03/2022 petitioners of Special Civil Application No.8832 of 2019 asking them to join the service within 30 days.
28.06.2005: The final appointment letter came to be issued to the petitioners of Special Civil Application No.8833 of 2019 asking them to join the service within 30 days.
10.6.2005: The final appointment letter came to be issued to the petitioners of Special Civil Application No.8834 of 2019 asking them to join the service within 30 days.
29.07.2005: The final appointment letter came to be issued to the petitioners of Special Civil Application No.10246 of 2019 asking them to join the service within 30 days.
25.08.2005: The final appointment letter came to be issued to the petitioners of Special Civil Application No.10248 of 2019 asking them to join the service within 30 days.
6.4 On reading of the dates together with the conditions of the notification which are reproduced above would indicate that the commission itself pursuant to the advertisement dated 30.12.2000, undertook the process of written examinations after two years in June 2002. Thereafter, oral interviews were held two years post the written examination on 03.05.2004, 26.07.2004 and 30.08.2004. In other words, in between the date of the advertisement and the date of interviews, four Page 15 of 21 Downloaded on : Tue Mar 08 21:54:37 IST 2022 C/SCA/8832/2019 CAV JUDGMENT DATED: 08/03/2022 years period went by. Notifications by the Government were issued on 01.09.2004 and 02.12.2004 recommending the names of the petitioners for the posts in the Gujarat Civil Services. These notifications would indicate that modifications were made from time to time on account of rechecking of marks at the hands of the Gujarat Public Service Commission. In other words, the Gujarat Public Sercice Commission took four years in undertaking the exercise of recruitment itself.
7 It is in light of these facts that the Circular of 16.01.1969 needs to be read. The Government of Gujarat circular of 16.01.1969 indicates that appointment to the posts by direct selection, the required action like verification of character and antecedents should be completed within two months from the date of Commission's recommendation. From the date of events what is evident is and on reading the reply thereto, that the Gujarat Public Service Commission recommended a total of 255 candidates for various Class-I and Class-II posts. The General Administrative Department started the process of scrutiny. A letter was written inquiring about the age relaxation and court cases on 17.12.2004. The approval of the Hon'ble the Chief Minister was obtained on 17.02.2005. During the approval process, representations were made with regard to invalid SEBC Caste Certificates of successful candidates. Based on these representations, the Directorate of Developing Caste Welfare Page 16 of 21 Downloaded on : Tue Mar 08 21:54:37 IST 2022 C/SCA/8832/2019 CAV JUDGMENT DATED: 08/03/2022 was requested to verify these SEBC Certificates. Out of total 97 successful SEBC candidates, caste certificates of three SEBC candidates were found to be invalid. This was brought again to the notice of the Chief Minister and a fresh approval was sought which was given on 19.04.2005. On 04.05.2005, the GPSC informed the Government that there was no scope of recommending the three candidates who had invalid caste certificate. It was in this line of facts that the second approval was sought for and granted by the Chief Minister on 13.05.2005. Appointment orders were subsequently issued as is evident from the dates within two months thereafter. What these circumstances would indicate is that it was purely an administrative delay in the process of appointment due to reverification exercise of caste certificate of candidates. It cannot be said that the Circulars of 1969 and the subsequent circulars are of binding nature. They are merely in the nature of guidelines and cannot be enforced by the petitioners to submit that their appointments ought to relate back to the date of the advertisement particularly when the clause in the advertisement read with the notifications recommending their appointments categorically made clear that mere listing of their names in the gazette would not give them the right to appointment. The case of the petitioners on the ground of discrimination by relying on the advertisements in case of other recruitments and also relying on the Government of India's Department of Pension, Office Memorandum Page 17 of 21 Downloaded on : Tue Mar 08 21:54:37 IST 2022 C/SCA/8832/2019 CAV JUDGMENT DATED: 08/03/2022 dated 17.01.2020 is misconceived.
8 Insofar as the decisions relied upon by the learned counsel for the petitioners in the case of Mahesh Narayan (supra), it does have a persuasive value. The decision of Mahesh Narayan extensively relies on the decision in the case of Firangi Prasad (supra). If the facts of Firangi Prasad are considered, the dispute was with regard to the claim of the appellant therein for his regularization under the provisions of Section 33(C) of the U.P Secondary Education Services Selection Board Act, 1982. The admitted facts were that the appellant was appointed in a selection process held on 05.01.1993. It was also in dispute that the appointment was against a substantive vacancy. The Management notified the appointment on 18.01.1993. The Management was directed to allow the appellant therein to join within ten days. On the appellant approaching the Management with the order of 18.01.1993, the Management refused to perform a ministerial act of issuing a letter of appointment and did not allow the appellant to join the institution. After repeated representations, the Management ultimately permitted the petitioner to join on 26.08.1993 vide a letter of appointment dated 25.08.1993. In the interregnum, amendments came in the provision of Sec.33(C) providing that regularization of appointees not later than 06.08.1993 could be considered. By virtue of the said amendment, the Page 18 of 21 Downloaded on : Tue Mar 08 21:54:37 IST 2022 C/SCA/8832/2019 CAV JUDGMENT DATED: 08/03/2022 case of the petitioner was not considered for regularization on the ground that he was appointed after 06.08.1993. The State did not dispute the allegation before the Allahabad High Court that the appellant had been denied appointment though a selection and an order of appointment was issued on 18.01.1993. It was under these circumstances the Court held that once the order of appointment was issued in favour of the appellant on 18.1.1993, no fault can be found on his part if the institution, the management by inaction did not perform the ministerial act of issuing a letter of appointment in terms of the selection order. 9 In the facts of the present case, it is clearly distinguished inasmuchas it was not accepted that once the name of the selected candidates was recommended by the GPSC on 02.12.2004, the exercise of issuing appointment orders was merely a ministerial act. The State from the affidavit as is evident, though in the perception of the petitoners have admitted delay, that delay would not accrue in favour of the petitioners inasmuch as the State had to undertake the exercise of verification of antecedents, character, caste certificates, age, qualifications etc., which it did for 255 candidates which reasonably took about two to three months and had to be sent back and forth as certain caste certificates were found to be non genuine.
Page 19 of 21 Downloaded on : Tue Mar 08 21:54:37 IST 2022 C/SCA/8832/2019 CAV JUDGMENT DATED: 08/03/2022 10 Even the decision in the case of Ashutosh Joshi (supra) would not apply to the facts of the case. In the case before the Uttarakhand High Court, in case of the same advertisement, the women candidates were appointed earlier in point of time as compared to the male candidates. The selection process was common, the advertisement was common, it was in the case of the women candidates that the benefits of the pension scheme was given whereas that condition was altered to the detriment of the male candidates. On the basis of an anomolous situation which was clearly in violation of Article 14 of the Constitution of India, that the Uttarakhand High Court opined as it did.
11 Even in the case of Balwant Singh (supra) the facts would indicate the different stand that it was a case wherein pursuant to the advertisement and the interviews some selected candidates could join before 30.09.2005 and some could join after 01.10.2005. On 25.10.2005, State Government issued a notification introducing a new pension scheme effective from 01.10.2005. The Uttarakhand High Court opined that appointment letters were given on 29.09.2005. Some candidates joined prior to 30.09.2005 were given the benefits of the old pension scheme, others who joined post 01.10.2005 were not given the benefits. Based on the date of the notification as 25.10.2005, the Uttarakhand High Court opined that the petitioners who joined on 01.10.2005 were already in Page 20 of 21 Downloaded on : Tue Mar 08 21:54:37 IST 2022 C/SCA/8832/2019 CAV JUDGMENT DATED: 08/03/2022 service when the Notification of 25.10.2005 was brought into force. The petitioners therein could not be said to be new entrants when the appointment orders were issued on 29.09.2005 and the petitioners were not aware that a notification would come on 25.10.2005 retrospectively. In the facts of the present case admittedly it is not case where the appointments orders were issued to a class of candidates and some joined pre cut off date and post cut off date and the distinction of the pension scheme on that basis.
12 Considering all these submissions and the decisons relied upon by the learned counsels for the respective parties, there cannot be a fault found with the authorities in extending the benefits of the New Pension Scheme as per the resolution of 18.03.2005 admittedly when after the recommendations made in December 2004 finally by the GPSC, the process of appointment bonafidely took some time due to the administrative process involved therein.
13 Accordingly, all the petitions are dismissed with no orders as to costs. Rule is discharged accordingly.
(BIREN VAISHNAV, J) Bimal Page 21 of 21 Downloaded on : Tue Mar 08 21:54:37 IST 2022