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9. On the facts as briefly noted above, the petitioners are claiming benefit of Old Pension Scheme and, therefore, they have filed the present writ petition.

Submissions

10. Learned counsel for the petitioners submits that the petitioners are entitled for Old Pension Scheme for reason that despite directions given in the order dated 28.10.2003 in Civil Misc. Writ Petition No.35653 of 2003, the State Government delayed in framing policy for regularisation of Subject expert. If the State Government would have framed the reqularisation policy immediately after the aforesaid order in the case of Manoj Kumar Rastogi and Others (supra) then the petitioners could have got benefit of Old Pension Scheme. Therefore, for the delay caused by the State Government in framing the regularisation scheme, the benefit of Old Pension Scheme can not be denied to the petitioners.

14. Petitioners have been absorbed and came to be appointed only after Section 21 E was inserted in the Act 1982 on 11.12.2006. The petitioners have been appointed and became part of service cadre and became Government Servant only on their appointments which were made in September and October 2007 when the new scheme was in force. The Old Pension Scheme was abolished in March 2005, which is much prior to the appointments of the petitioners. The petitioners themselves accepted the offer of their appointment by absorption after well looking into the relevant provisions and the Government orders as well as the offer for the post made to them. The provisions of the Scheme 21 E or the relevant Government orders or the Old Pension Scheme and the New Pension Scheme are not under challenge in the present writ petition. It is settled law that writ, order or direction in the nature of mandamus under Article 226 of the Constitution of India can not be issued either contrary to the statutory provisions or to disobey or ignore the statutory provisions. Under the circumstances none of the relief of mandamus as prayed by the petitioners can be granted to the petitioners.

(emphasis supplied)

23. The principles of law of public employment as discussed above leaves no manner of doubt that regular employment must be a rule. The power of State as an employer is more limited than that of the private employer inasmuch as it is subject to constitutional limitation. But some time, this process is not adhered and constitutional scheme of public employment is by passed as happened in the present case. Such employment is called "litigious employment". Absorption in public employment is not a right. It is an exception to the normal rule of public employment. It is subject to conditions of absorption. Once the petitioners have knowingly and with open eyes exercised the option for their absorption in public employment, they cannot turn round and say that New Pension Scheme should not be enforced and instead the Old Pension Scheme which already stood abolished in March 2005 should be applied to them.

24 It is settled law that when a scheme is abolished, even pending applications seeking benefit of the scheme, unless saved, will also cease to exist. Reference in this regard may be had to the judgment of Hon'ble Supreme Court in the case of State Bank of India and another vs. Raj Kumar, (2010) 11 SCC 661.

25. In the present set of facts when the petitioners claim to have been appointed, Old Pension Scheme was not in existence. It was abolished in March 2005, whereas the petitioners have been appointed by absorption in the months of September or October 2007. The basis of their appointments is the provision of Section 21 E of the Act, 1982 which was inserted by U.P. Act 37 of 2006 published in the gazette on 11.12.2006. Therefore, the Old Pension Scheme which already stood abolished in March 2005 was neither available to the petitioner on the date of their appointments nor the petitioners are entitled for benefit under the said scheme.