Allahabad High Court
Usman Kausar And 11 Ors vs State Of U.P. And 3 Ors on 12 May, 2023
Author: Vivek Chaudhary
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:102916 [Reserved] In Chamber Case :- WRIT - A No. - 67536 of 2014 Petitioner :- Usman Kausar And 11 Ors Respondent :- State Of U.P. And 3 Ors Counsel for Petitioner :- Siddharth Khare,Shri Ashok Khare Counsel for Respondent :- C.S.C.,Manvendra Dixit along with Case :- WRIT - A No. - 17197 of 2019 Petitioner :- Ali Yawar And 24 Others Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Siddharth Khare,Sri. Ashok Khare Sr. Advocate Counsel for Respondent :- C.S.C. Hon'ble Vivek Chaudhary,J.
Heard Sri Ashok Khare, learned senior advocate assisted by Sri Sidhharth Khare for the petitioners and learned standing counsel for the respondents. These two writ petitions are connected and decided together as they involve a common issue.
By the present petitions, petitioners are challenging order dated 26.02.2014 whereby their claim for arrears of salary and retirement benefits under the Old Pension Scheme has been rejected by the respondents.
Brief facts of the case are that in the year 1994, the district administration of District- Deoria issued an advertisement inviting applications for appointment to the post of Urdu Translator cum Junior Clerk. Petitioners applied for the same. Final results were declared on 12.01.1995 containing names of 51 successful candidates. However, by order dated 07.08.1995, the selection list dated 12.01.1995 was withdrawn and a fresh selection list was directed to be prepared. On 16.12.1995, a fresh selection list was prepared containing names of petitioners herein. Aggrieved by the new selection list, previously declared successful candidates challenged the same before this Court. Candidates declared successful in selection list dated 16.12.1995 also approached this Court since appointment letters were not being issued to them. Petitions filed by both categories of petitioners were clubbed together and decided by a common order dated 15.04.1998 and learned single Judge quashed the order dated 07.08.1995 and selection list dated 16.12.1995, allowing the petitions filed by candidates declared successful by the first selection list dated 12.01.1995. Petitions filed by candidates declared successful by second list dated 16.12.1995 were dismissed in toto.
The judgment dated 15.04.1998 was challenged in Special Appeal by the candidates declared successful in the second selection list dated 16.12.1995. A total of 5 Special Appeal against the said judgment were filed viz. Special Appeal No. 516 of 1995 (State of U.P. vs Iftikhar Ansari), Special Appeal No. 578 of 1995 (State of U.P. vs Mohd. Latif), Special Appeal No. 1207 of 1999 (State of U.P. vs Amiruddin Khan), Special Appeal No. 329 of 1998 (Jalal Ahmad vs. State of U.P.) and Special Appeal No. 793 of 2000 (Sajda Khatoon vs State of U.P.). All the special appeals were allowed by a common judgment and order dated 12.01.2004 and second selection list dated 16.12.1995 was upheld and the State was directed to issue appointment letters to candidates declared successful by list dated 16.12.1995. However, no appointment letters were issued by the respondents. In the meantime, aggrieved by the Division Bench judgment dated 12.01.2004, candidates declared successful by first list dated 12.01.1995 filed Special Leave Petition before the Supreme Court being SLP (Civil) No. 4012 of 2004 (Amiruddin and Ors. vs. State of U.P. and Ors.). The said SLP was dismissed by the Supreme Court by its judgment dated 10.08.2007 and thus the selection list dated 16.12.1995 attained finality. When no appointment letters were issued to the successful candidates, a contempt petition being Contempt Petition No. 4343 of 2007 (Jalal Ahmad and Ors. vs. B.N. Dixit and Ors.) was filed before this Court. In 2010, respondents undertook to issue appointment letters to the selected candidates. Successful candidates were finally issued their appointment letters between the years 2010 and 2012.
Learned senior advocate, Sri Ashok Khare representing the petitioners, during the course of the argument submits before the Court that since the filing of these two petitions majority of the petitioners have retired and therefore he is limiting his prayer only to the extent of benefit of the Old Pension Scheme. He further submits that selection list dates 16.12.1995 was upheld in the special appeal by judgment dated 12.01.2004 and therefore the rights of the petitioners to the post accrued from the said date, however, due to the complacency of the respondent herein their appointment letters were issued only after the year 2010. Old Pension Scheme was in force till 31.03.2005, while the Division Bench passed its judgment in the Special Appeal on 12.01.2004. Without any fault of the petitioners, they are made to suffer. If the Special Appeal judgment was given effect to within time, petitioners would have been entitled to the benefits provided under the Old Pension Scheme. In support of his case counsel for the petitioner places reliance upon the judgment dated 11.10.2022 of this Court passed in Writ A No. 28543 of 2013 (Bageshwari Prasad Srivastava And 8 Ors. vs. State Of U.P. And 3 Ors.) which was later upheld by a Division Bench by its judgment dated 29.03.2023 passed in the Special Appeal No. 176 of 2023 (State Of U.P. And 4 Ors. vs. Late Bageshwari Prasad Srivastava And 8 Ors.) and another Division Bench Judgment dated 19.02.2021 passed in Special Appeal Defective No. 117 of 2021 (State of U.P. and 2 Others vs. Mahesh Narain and 2 Others) and a Division Bench judgment of the Supreme Court passed in the case of P. Ranjitharaj vs. State of Tamil Nadu; reported as 2022 SCC OnLine SC 508.
Learned Standing Counsel opposing the submissions of the counsel for petitioners submits that there is no illegality in the order dated 26.02.2014. Since the appointment letters were issued to petitioners between the years 2010 and 2012 and by that time Old Pension Scheme was already abolished in the State of U.P., therefore, the petitioners cannot claim the benefits of the Old Pension Scheme.
It is an admitted position by both sides that appointment letters were issued only after the contempt petition was instituted by the petitioners. Whereas the Division Bench in its judgment dated 12.01.2004 has already directed respondents to appoint petitioners. Even the Special Leave Petition against the judgment of the division bench was filed by candidates declared successful in the first list dated 12.01.1995 and not by the State of U.P. In such circumstances, it can not be said that the petitioners were at any fault. It is only the inaction of the State respondents which led to a delay of almost seven years in issuance of appointment letters to the petitioners after the Division Bench ordered their appointment. The State continued to remain complacent and woke up only after personal appearances of officers of the State were directed in the contempt proceeding. Due to the unjustifiable inaction of the State, petitioners can not be made to suffer, suffice would be to refer to the judgment of the Division Bench in Special Appeal in case of Late Bageshwari Prasad Srivastava (supra), relevant portion of the same thus reads;
?No doubt, the appointment letter of the petitioners is dated 9.04.2005 and they joined in pursuance thereof on or before 20.04.2005, but it is an admitted fact on record that the direction of the Writ Court for absorption of the respondents against Class III and IV posts was issued on 29.04.1999. The special appeal filed by the State Government was dismissed on 29.11.2001 followed by dismissal of the SLP on 18.03.2002. The State Government had no justifiable reason with it to withhold the absorption and issuance of appointment letters to the respondents. The respondents were compelled to initiate contempt proceedings against the State and whereafter, appointment letters were issued to them on 9.04.2005. In the aforesaid background, the learned Single Judge has rightly held that the stand taken by the State for denying the benefit of old pension scheme to the respondents did not merit acceptance as valuable right to being appointed accrued in their favour atleast after dismissal of the SLP. The learned Single Judge has rightly directed the State to treat the respondents to have been absorbed in service notionally on 18.03.2002, the date on which the issue relating to their absorption in Government Service was finally settled by the Supreme Court.?
In light of the aforesaid, the right of appointment arose on 12.01.2004, when the Division Bench ruled in favour of petitioners. The respondents, however, continued to sit on the order of the Division Bench for five years and never challenged it. Petitioners can not be made to suffer for the inaction of State in issuing appointment letters to candidates more than 16 years after the vacancy was advertised.
In view thereof, the writ petitions are allowed, impugned order dated 26.02.2014 is quashed to the extent it disqualifies petitioners from the benefits of the Old Pension Scheme. Respondents are directed to ensure regular payment of pension as per the Old Pension Scheme to the petitioners who stand retired from services. For the petitioners who are still in service, respondents are directed to enroll such petitioners under the Old Pension Scheme and ensure regular payment of pension to them as and when they retire.
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[Vivek Chaudhary J.] Order Date :- 12.5.2023
-Amit K-