Allahabad High Court
Vaibhav Singh vs State Of U.P. And 2 Others on 14 January, 2020
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 36 Case :- WRIT - A No. - 56652 of 2017 Petitioner :- Vaibhav Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Vijay Kumar Singh,Hritudhwaj Pratap Sahi,Praveen Kumar Singh Counsel for Respondent :- C.S.C. Hon'ble Mahesh Chandra Tripathi,J.
1. Heard Shri H.P. Sahi, learned counsel for the petitioner and Shri Apurva Hajela, learned Standing Counsel for the respondents.
2. By means present writ petition, the petitioner has sought following principal reliefs:
"i. a writ, order or direction in the nature of certiorari quashing the impugned order dated 21.8.2017 (Annexure No.8 to the writ petition) passed by respondent no.2, Under Secretary, State of U.P., Lucknow as well as portion of the Government Order dated 28.6.2017 (Annexure No.10 to this writ petition) issued by the Secretary, State of U.P. ii. a writ, order or direction in the nature of mandamus commanding the respondents to consider the claim of the petitioner to be included in the old pension scheme, which was prevailing prior to 1.4.2005."
3. Brief facts of the case are that Public Service Commission, Uttrakhand issued an advertisement for holding Combined State Engineering Services Examination 2002 showing the vacancies for the post of Assistant Engineer (Civil) in the Public Works Department and Assistant Engineers (Electrical/Mechanical) in Department of Rural Engineering Services and Rural Development and Panchayat Raj Departments. The vacancies were mentioned in the advertisement and relevant rules for reservation were also applicable. The petitioner being fully eligible had also applied and was selected on 17.6.2003. The select list was forwarded to the Government for approval and thereafter the appointment letters were issued to the successful candidates by the concerned department. Meanwhile, certain dispute arose regarding quota for direct recruitment as well as promotion. At that time, the entry quota for direct recruitment on the post of Assistant Engineer was 58.34% and rest of the posts (41.66%) would fall within the promotional quota amongst the Junior Engineers in United Provinces Services of Engineers (Building and Road Branch) Class-2 Rules, 1936. The State of Uttrakhand notified new services rules as on 25.4.2003 in which the direct entry quota of Assistant Engineer was reduced from 58.34% to 50% and accordingly, the State of Uttrakhand issued appointment letters only in respect of the candidates, who fall within 50% quota.
4. The petitioner alongwith other similarly situated persons approached to Hon'ble High Court of Uttrakhand at Nainital by preferring Writ Petition No.45 of 2004 (S/B) for issue of a writ in the nature of mandamus commanding the respondents to issue the appointment letters to them in order of merit and preference according to the select list. Meanwhile, the State of Uttrakhand had again reconsidered the entry quota for direct recruitment and the previous quota of 58.34% has been restored. Consequently, a Division Bench of Uttrakhand High Court had proceeded to allow the said writ petition on 13.5.2004 and the respondents were directed to issue appointment letters in favour of the petitioner in pursuance of the approved selection list published on 17.6.2003. Even though the writ petition was allowed by the Division Bench on 13.5.2004 but for the reasons best known to the authorities there was inordinate delay and the appointment letters were issued on 29.7.2005, requiring the candidates to submit their joining by 18.8.2005. The name of the petitioner finds place at serial no.9 in the said list. Consequently, the petitioner had submitted his joining on 09.8.2005 as Assistant Engineer (Civil), Public Works Department in the State of Uttrakhand and since then he started working as Assistant Engineer in the State of Uttrakhand.
5. Meanwhile, the U.P. Public Service Commission also issued an advertisement for holding Combined State Engineering Services Examination-2003 showing the vacancies for the post of Assistant Engineer (Civil). In pursuance of the said advertisement the petitioner also applied and was selected on the post of Assistant Engineer (Civil) in Irrigation Department. Thereafter, an order was passed by the Special Secretary, Government of U.P. on 20.6.2008 issuing appointment letter in favour of the petitioner on regular basis on the post of Assistant Engineer (Civil) in Irrigation Department. In pursuance of the said appointment letter the petitioner submitted his joining on 1.7.2008 on the said post. Thereafter, he was promoted as Executive Engineer in the month of November, 2015 and since then he is working continuously on the said post. The petitioner approached to the respondents by means of representation for according the benefit of old pension scheme, as he was in old pension scheme in the State of Uttrakhand. By the order impugned dated 21.8.2017 the claim of the petitioner has been rejected, relying upon the Government order/clarificatory order issued by the Secretary, State of UP on 28.6.2017, wherein it has been provided that if an employee was appointed after 1.4.2005 in his earlier State, then he would not be entitled to get the old pension scheme and he would be governed by the National Pension Scheme, which has been enforced with effect from 1.4.2005.
6. In this backdrop, Shri H.P. Sahi, learned counsel for the petitioner has vehemently contended that the petitioner joined in the State of U.P. on 01.7.2008. Subsequently on 16.9.2011 the Principal Secretary had specifically mentioned in his order that if an employee is covered by the old pension scheme in his State then after coming in the State of UP he would be entitled to get the same benefit, even if he was appointed after 1.4.2005. In the State of Uttrakhand, the new pension scheme has been enforced only w.e.f. 1.10.2005 and the same would be evident from the clarificatory order dated 28.6.2017, which is appended as Annexure No.10 to the writ petition, wherein it is categorically averred that in the State of Uttar Pradesh, the new pension scheme commenced w.e.f. 1.4.2005; in the State of Goa w.e.f. 5.8.2005; State of Uttrakhand w.e.f. 01.10.2005; State of Maharashtra w.e.f. 1.11.2005 and State of Haryana w.e.f. 01.01.2006; State of Karnataka and Sikkim w.e.f. 1.4.2006; State of Nagaland, Meghalaya and Mizoram w.e.f. 01.01.2010, 01.4.2010 and 01.9.2010 respectively. The same also finds place in the Annexure, which is appended alongwith the said Government order dated 28.6.2017. The State of Uttrakhand finds place at serial no.38, wherein the date of notification and date of adoption are mentioned as 25.10.2005 and 1.10.2005 respectively. The claim of the petitioner is covered under the Government order dated 16.9.2011 and subsequently clarificatory order was issued on 28.6.2017 in addition to the earlier Government order dated 16.9.2011. Most surprisingly, in the garb of the clarificatory order dated 28.6.2017 the claim of the petitioner has been non-suited.
7. It is sought to be contended that the State Government itself has written a letter to all the Principal Secretaries/Secretaries, Government of UP and all the departments in respect of grant of benefit of old pension scheme to the employees, who were already working in old pension scheme in their respective States and even for compliance of the initiative so taken by the State Government, the State of Uttrakhand had also consented and accordingly, the benefit had also been extended to the employees. More so, the law is settled in this regard that the order passed would operate prospectively unless it is mentioned that it would operate retrospectively. In the garb of the clarificatory order dated 28.6.2017, the valuable rights of the petitioner cannot be withdrawn through subordinate legislation. In support of his submission, he has placed reliance on the judgement and order dated 19.12.2019 passed by this Court in Writ A No.55606 of 2008 (Mahesh Narayan and others vs. State of UP and others); judgements of High Court of Uttrakhand dated 17.06.2013 in the case of Ashutosh Joshi & others Vs. State of Uttrakhand and others in Writ Petition (S/S) No. 1170 of 2010, judgment dated 20.11.2012 passed in Writ Petition Nos. 16 and 944 of 2011 (S/S) (Balwant Singh and Ors. Vs. State of Uttarakhand and Ors.) and judgment dated 26.06.2014 passed in Special Appeal No. 330 of 2013 (State of Uttarakhand and others vs. Balwant Singh and others) with Special Appeal No. 523 of 2013 (State of Uttarakhand and others vs. Chandra Shekhar Singh and others) filed against the judgment dated 20.11.2012 and judgment dated 27.03.2017 of Delhi High Court in the matter of Inspector Rajendra Singh vs. Union of India reported in 2017 SCC Online Del 7879. He has also placed reliance upon the judgment of Delhi High Court dated 13.09.2018 in Writ Petition(C) No. 838 & CM Appl. No. 3656/2016 (Government of National Capital Territory of Delhi & others Vs. Ajay Kumar & others) along with Writ Petition(C) No. 839/2016 & CM Appl. No. 3659/2016 (Government of National Capital Territory of Delhi & others vs. Vijay Singh and others) which was affirmed by the Apex Court passed in Special Leave to Appeal (C).....Diary No. 15658/2019 (Government of National Capital Territory of Delhi & ors. Etc. Vs. Ajay Kumar & others etc.) vide order dated 10.07.2019.
8. Per contra, Shri Apurva Hajela, learned Standing Counsel has not disputed the fact of the case as submitted by Shri H.P. Sahi, learned counsel for the petitioner. So far as the legal submission is concerned, he submits that by the clarificatory order the petitioner is not entitled for the benefit of old pension scheme but at the same time, he acknowledged the aforesaid Government orders.
9. The Court has proceeded to examine the record in question and finds that the petitioner applied for and was selected on the post of Assistant Engineer in the State of Uttrakhand on 17.6.2003. However, he was not issued appointment on account ofcertain dispute regarding the quota of direct recruitment. The petitioner alongwith other similarly situated persons preferred Writ Petition No.45 of 2004 (S/B) and the same was allowed by the Division Bench of Uttrakhand High Court on 13.5.2004 and the direction was issued to the respondents to issue appointment letter in favour of the petitioner in pursuance of the approved selection list published on 17.6.2003. Finally, the appointment letters were issued on 29.7.2005 and in pursuance thereof, he submitted his joining on 09.8.2005 as Assistant Engineer (Civil), Public Works Department in the State of Uttrakhand and started functioning as Assistant Engineer in the State of Uttrakhand. Thereafter, he was selected in the State of UP and the appointment order was issued in his favour on 20.6.2008 on the post of Assistant Engineer (Civil) in Irrigation Department. In pursuance of the said appointment letter, he submitted his joining on 1.7.2008. Thereafter, he was promoted as Executive Engineer in the month of November, 2015 and since then, he is working continuously on the said post. The petitioner requested for according the benefit of old pension scheme, as he was in old pension scheme in the State of Uttrakhand. By the order impugned the claim of the petitioner has been rejected on 21.8.2017 and while rejecting the claim of the petitioner the only ground was taken that since the appointment of the petitioner in the State of Uttrakhand was made after 1.4.2005, therefore, he would be governed by the new pension scheme in view of the clarificatory order dated 28.6.2017.
10. The Court also finds that the Principal Secretary had specifically mentioned in his order dated 16.9.2011 that if an employee is covered by the old pension scheme in his State then after coming in the State of UP he would be entitled to get the same benefit, even if he was appointed after 1.4.2005. In the State of Uttrakhand the new pension scheme has been enforced only w.e.f. 1.10.2005 and the same would be evident from the clarificatory order dated 28.6.2017. The claim of the petitioner is covered under the Government order dated 16.9.2011 and subsequently clarificatory order was issued on 28.6.2017 in addition to the earlier Government order dated 16.9.2011. The State Government itself has written letter to all the Principal Secretaries/Secretaries, Government of UP and all the departments in respect of grant of benefit of old pension scheme to the employees, who were already working in old pension scheme in their respective States and even for compliance of the initiative so taken by the State Government the State of Uttrakhand had also consented and accordingly, the benefit had also been extended to the employees. The petitioner has already joined in the State of Uttrakhand prior to 1.10.2005 and therefore, he was covered under the old pension scheme in the State of Uttrakhand. Thereafter,the petitioner joined in the State of U.P. on 01.7.2008 and his services have been counted. On the fault of earlier appointing authority in issuing appointment letter, the petitioner cannot be put any type of disadvantage. Even though he joined prior to cut of date on 9.8.2005 and as such his valuable right cannot be denied in the light of the clarificatory order issued in the year 2017.
11. In the facts and circumstances the order impugned is unsustainable and accordingly, the same is set aside. The respondents are directed to count the previous services of the petitioner rendered in the State of Uttrakhand as qualifying service and accordingly, he may be extended the benefit of old pension scheme.
12. Consequently, the writ petition is allowed.
Order Date :- 14.1.2020 RKP