1. Heard Mr. Ramesh Pandey, learned Counsel for the petitioners and Mr. Prashant Jaiswal, learned Additional Chief Standing Counsel.
2. Through the present writ petition under Article 226 of the Constitution of India, petitioners are seeking a writ of Mandamus for a direction to respondents to make necessary deduction towards General Provident Fund etc. from salary of the petitioners, after completion of probation period in view of the Old Pension Scheme, which was in existence at the time of Notification No.1 of 2002 dated 27.9.2002 issued by the U.P. Secondary Education Services Selection Board, Allahabad.
3. Shorn off unnecessary details the facts of the case are as under :
Pursuant to the Advertisement No.1 of 2002 published on 27.9.2002, petitioners had applied and after following due procedure as provided under law, by the U.P. Secondary Education Services Selection Board, Allahabad, they were selected as Assistant Teachers,. After selection, in between November, 2004 to December, 2004, the U.P. Secondary Education Services Selection Board, Allahabad allocated the panel of selected candidates including the petitioners to the District Inspectors of Schools of various districts for their appointments. As per panel, petitioner Nos. 1, 2, 3, 4, 5, 6, 7 and 8 had been allocated to the District Inspectors of Schools of District Baghpat, Mathura, Muzaffar Nagar, Pratapgarh, Ghaziabad, Barabanki and Raebareli, respectively.
4. According to the petitioners, after empaneling, the District Inspector of Schools, Baghpat, vide letter dated 13.12.2004, directed the Manager/Committee of Management, Sri Vidya Mandir Inter College, Chhaprauli, Baghpat, to issue appointment letter to petitioner No.1-Satyesh Kumar Mishra but the letter of appointment was not issued to petitioner No.1 and subsequently, on 18.12.2004, Manager/Committee of Management, Sri Vidya Mandir Inter College, Chhaprauli, Baghpat, refused to issue appointment letter to petitioner No.1. However, on 21.2.2005, the District Inspector of School, Raebareli issued direction to Sri Ganesh Vidyalaya Inter College, Aehar, Raibareli, which is a Government aided College, to issue appointment letter to petitioner No.1. In compliance of the letter dated 21.2.2005, the Manager/Committee of Management, Sri Ganesh Vidyalaya Inter College, Aehar, Raibareli, issued letter of appointment to the petitioner No. 1 on 16.4.2005. Consequently, the petitioner No.1 joined as Assistant Teacher in Sri Ganesh Vidyalaya Inter College, Aehar, Raibareli on 16.4.2005.
5. Inso far as petitioner No.2 is concerned, it has been stated by the Counsel that the District Inspector of Schools, Mathura, vide letter dated 10.11.2004, issued letter to the Manager/Committee of Management, Sri Brij Aadarsh Inter College, Mathura, to issue letter of appointment to petitioner No.2-Ravindra Bahadur Srivastava but the same was not issued to petitioner No.2 and, subsequently, vide letter dated 22.1.2005, the issuance of appointment letter was refused by the Manager/Committee of Management, Sri Brij Aadarsh Inter College, Mathura. Thereafter, the District Inspector of Schools, vide letter dated 20.4.2005, directed the Manager, Mahatma Gandhi Inter College, Raebareli to issue letter of appointment to petitioner No.2. In compliance of the letter dated 20.4.2005, the Manager, Mahatma Gandhi Inter College, Raebareli issued letter of appointment to petitioner No.2 on 13.5.2005. Similarly, with regards to petitioner No.3, a direction was issued by the District Inspector of Schools, Muzaffarnagar to the Manager/Committee of Management, D.A.V. Inter College, Oon, Muzaffarnagar for issuance of appointment letter to petitioner No.3-Chhote Lal but the same was refused by the Manager/Committee of Management, D.A.V. Inter College, Oon, Muzaffarnagar vide letter dated 15.1.2005. Subsequently, petitioner No.3 was given appointment letter by the Manager, Gayatri Inter College, Rustampur Raebareli and in pursuance thereof, the petitioner No.3 joined in the institution on 4.5.2005.
6. It has been stated by the Counsel that initially the District Inspector of Schools, Pratapgarh had issued letter dated 30.9.2004 to the Manager of the institution situate at Pratapgarh, requiring him to issue letter of appointment to petitioner No.4-Zaheer Ahmad but the same was refused on 29.11.2004. Subsequently, in pursuance of the letter dated 9.6.2005 issued by the District Inspector of Schools, Raibareli, the Manager, Chandrapal Inter College, Shera Gangaganj, Raebareli issued letter of appointment to the petitioner No.4 and in pursuance thereof, the petitioner No.4 joined the institution on 16.4.2005.
7. As regard to petitioner No.5-Ram Singh, it has been stated that initially, the District Inspector of Schools, Ghaziabad directed the Manager, Nehru Smarak Inter College, Surana, Ghaziabad to issue a letter of appointment to the petitioner No.5 but the same was refused by the Manager, Nehru Smarak Inter College, Surana, Ghaziabad on 13.11.2004. Later on, in pursuance of the appointment letter, petitioner No.5 had joined Chandrapal Inter College, Shora Gangaganj, Raibareli on 14.8.2006.
8. As regards to petitioners Nos. 6, 7 and 8, it has been stated that the District Inspectors of Schools had initially issued letter to the concerned Manager of the Institution for issuance of appointment letters in the month of January, 2005 but the concerned Manager of the institution had refused to issue letter of appointment to petitioners Nos. 6, 7 and 8. Later on, in pursuance of the appointment letters, petitioners Nos. 6, 7 and 8 joined on 16.4.2005 and 25.4.2005, respectively.
9. According to the petitioners, since after completion of probation period satisfactorily, no necessary deduction towards General Provident Fund etc. are being made from their salary inter alia on the grounds that petitioners do not come within the purview of Old Pension Scheme and are covered by the new Pension Scheme i.e. Uttar Pradesh Retirement Benefits (Amendment) Rules, 2005 and General Provident Fund (Uttar Pradesh) Amendment Rules, 2005. Therefore, petitioners are constrained to approach this Court by filing the present writ petition, seeking the relief for making necessary deduction of General Provident Fund etc. from the salary of the petitioners.
10. Submission of the learned Counsel for the petitioners is that pursuant to the Notification dated 27.9.2002, petitioners had applied and after due process, the U.P. Intermediate Selection Board declared petitioners as successful and recommended their names for appointments in different Colleges in the State of Uttar Pradesh in the year 2003 but due to the fault and laxity on the part of the opposite parties, petitioners were given joining from April, 2005.
11. Further submission of the learned Counsel for the petitioners is that petitioners' selection is of the year 2003 and all the posts on which the selection took place come under the Old Pension Scheme. Therefore, the applicability of new pension scheme in the case of the petitioners would be as a change in the terms & conditions of recruitment as mentioned in advertisement issued for the purpose of selection. He submitted that once the process started for selection, all the Rules applicable to the said service will only be applicable and not the amended rules at the time of appointment/joining. Therefore, applicability of new pension scheme from 1.4.2005 to the incumbents relating to recruitment year 2003, is illegal and arbitrary.
12. Elaborating his submission, learned Counsel for the petitioners has submitted that identical controversy came up for consideration before Hon'ble High Court of Uttarakhand in Special Appeal No.330 of 2003; State of Uttarakhand and others Vs. Balwant Singh and others and a Division Bench of the Uttarakhand High Court vide judgment and order dated 26.6.2014, dismissed the Special Appeal by holding that when the petitioners applied for the post, old pension scheme was in existence, therefore, petitioners had every reasonable expectation that they would be governed by the service conditions prevailing on the date when posts were advertised and recruitment process commenced. It was also held that service conditions prevailing on the date when recruitment process commenced, cannot be permitted to be altered in disadvantage of the recruitees, moreover, Government Order dated 25.10.2005 is prospective in nature and cannot be made applicable retrospectively for the persons who had applied for the post prior to 25.10.2005.
13. Per contra, Mr. Prashant Jaiswal, learned Additional Chief Standing Counsel submitted that petitioner No.1 was appointed as Assistant Teacher (L.T.) Grade vide order of appointment dated 16.4.2005 passed by the Manager, Sri Vidyalay Inter College, Aihar, District Raebareli; petitioner No.2 was appointed as Assistant Teacher (L.T. Grade) vide order of appointment dated 13.5.2005 passed by the Manager, Mahatma Gandhi Inter College, Raebareli and he joined on 14.5.2005; petitioner No.3 was appointed as Assistant Teacher (L.T. Grade) vide order of appointment dated 4.5.2005 passed by the Manager, Gayatri Inter College, Rustampur, Raebareli; petitioners Nos. 4 and 5 were appointed as Assistant Teachers (L.T. Grade) vide orders dated 16.7.2005 and 14.8.2006 passed by the Manager, Chandrapal Inter College, Shera Gangaganj, Raebareli; petitioners Nos. 6 and 7 were appointed as Assistant Teacher (L.T.Grade) vide order of appointment dated 16.4.2005 passed by the Manager of Institution; and petitioner No.8 was appointed as Assistant Teacher (L.T. Grade) vide order dated 16.4.2005 passed by the Manager, Sri Ganesh Vidyalaya Inter College Aihar, District Raebareli and he has joined on 25.4.2005.
14. Elaborating his submissions, learned Additional Chief Standing Counsel has submitted that in exercise of powers conferred by the proviso to Article 309 of the Constitution of India, vide Notification No.Sa-3-469/Ten-2005-301(9)/2003 dated 7th April, 2005, the State Government framed "Uttar Pradesh Retirement Benefits (Amendment) Rules, 2005" [hereinafter referred to as "Rules 2005"], whereby the existing Rule 2 of the Uttar Pradesh Retirement Benefits Rules, 1961 has been amended by the State Government w.e.f. 1st April, 2005. Rules 2005 provides that the Uttar Pradesh Retirement Benefits Rules, 1961 shall not be applicable on the Government Employees, who enter in services of State Government on 1st April, 2005 or thereafter. Subsequently, vide Notification No.Sa-3-470/Ten-2005-301(9)-03 Lucknow dated 7th April, 2005, "General Provident Fund (Uttar Pradesh) (Amendment) Rules, 2005" came into force whereby the existing Rule 4 of the General Provident Fund (Uttar Pradesh) Rules, 1985 had been amended by the State Government w.e.f. 1st April, 2005 and a provision was made for not deducting the "General Provident Fund" from the salary of the Government Employees, who enter in services of State Government on 1st April, 2005 or thereafter. Vide Notification No.Sa-3-379/Ten-2005-301 (9)/2003 dated 28th March, 2005, the State Government implemented the "New Pension Scheme (NPS)" to its employees, who are being given appointment on or after 1.4.2005, against the substantive and permanent posts.
15. Learned Standing Counsel has further submitted that vide Notification No. Sa-3-1051/Ten-2008-301 (9)/2003 dated 14th August, 2008, the State Government issued the guidelines for implementing the 'New Pension Scheme (NPS)' to its employees, who have been given appointment after 1.4.2005. Since petitioners had joined their services on the posts of Assistant Teacher [L.T. Grade] in the month of April, 2005 in the respective Government aided educational institutions run by the private management after issuance of Rules, 2005 as well as General Provident Fund (Uttar Pradesh) Amendment Rules, 2005 (vide notification dated 7.4.2005), therefore, they cannot insist for the deduction of 'General Provident Fund (GPF)' from their salaries after completion of probationary period or from any prior date. Thus, the petitioners are eligible to get benefits under the provisions of 'New Pension Scheme' and are not entitled for contributing towards 'General Provident Fund (GPF)' from their salaries as claimed by them through the instant writ petition. In these backgrounds, learned Standing Counsel concluded that present writ petition being misconceived is liable to be dismissed.
16. I have heard learned Counsel for the parties and perused the record.
17. In sum and substance, the admitted facts of the present case are that an advertisement, bearing No.1 of 2002 dated 27.9.2002, was published by the Uttar Pradesh Secondary Education Services Selection Board, Allahabad (hereinafter referred to as "Board"), inviting applications from the eligible candidates for their selection as Assistant Teachers (L.T. Grade) in various subjects in different recognized and aided Institution throughout the Uttar Pradesh. Pursuant to the aforesaid advertisement, petitioners had applied and got selected. In the month of November, 2004 to December, 2004, the Board allocated the panel of the selected candidates including petitioners to the District Inspectors of Schools for their appointments in various districts. Thereafter, the District Inspectors of Schools of the concerned Districts directed to the Managers of the respective Government aided institutions run by the private societies registered under the provisions of Societies Registration Act, 1860 for issuing the order of appointment to the petitioners in their Colleges under the provisions of U.P. Secondary Education Services Selection Board Rules, 1998. But the Committee of Management of the Institutes/Colleges did not issue the order of appointment to the petitioners due to one or another reason. Ultimately, letter of appointment was issued to petitioners on 16.4.2015, 13.5.2005, 4.5.2005, 16.7.2005, 14.8.2006, 16.4.2005, respectively.
18. Petitioners submit that pursuant to the said letters of appointments, they joined their duties in respective institutions. Thereafter, they successfully completed their probation period but necessary deductions from the petitioners' salary were not made towards GPF subscription, therefore, petitioners are constrained to approach this Court by filing the present writ petition on the ground that they are entitled to get benefit of earlier pension scheme which existed prior to amendment.
19. The stand of the petitioners' counsel is that once process of selection was on and at the said point of time, old pension scheme was in existence, then, on account of their being lapses on the part of the opposite parties, in case appointment letters have been issued subsequent to the cut off date, then petitioners cannot be forced to accept the new pension scheme. On the other hand, the stand of the learned Additional Chief Standing Counsel for the State is that undsiputedly petitioners have entered into services after the cut off date prescribed under the relevant Rules, referred to above, and as such petitioners necessarily will have to be governed under the new pension scheme, as such, no relief can be granted to the petitioners as claimed by them.
20. It is true that advertisement has been issued way back in the year 2002 on 27.9.2002 and petitioners had proceeded to offer for being selected on the said post and undertook the process of selection. In the present case accepted position is that letter of appointments to the petitioners have been issued on 16.4.2015, 13.5.2005, 4.5.2005, 16.7.2005, 14.8.2006, 16.4.2005, respectively. Thus, in the present case, the controversy is as to whether petitioners should be governed by old set of rules or by new set of rules.
21. At this juncture, it would be relevant to mention that Vide Notification No.Sa-3-379/Ten-2005-301(9)/2003 dated 28th March, 2005, State Government has disclosed the object of New Pension Scheme as follows:-
"The State Government, in consideration of its long-term fiscal interest and following broadly the pattern adopted by the Central Government has approved the following proposal of introducing a new defined contribution pension system in place of the existing defined benefit pension scheme for new entrances to the service of the State Government and of all State controlled autonomous institutions and State aided private educational institutions where the existing pension scheme is patterned on the scheme or Government Employees and is funded by the consolidated fund of the State Government.
(i) From 1st of April, 2005, the new defined contribution pension system would mandatorily apply to all new recruits to the service of the State Government and of all State controlled autonomous State aided private educational institutions referred to above. However, employees covered by the existing pension scheme whose service would be of less than ten years on 1st April, 2005, may also voluntarily opt for the new pension system in place of the existing pension scheme.
(ii) Under the new defined contribution pension system, the employee would make a monthly contributor equal to 10 per cent of the salary and dearness allowance. A matching employer's contribution would be made by the State Government or by the concerned autonomous institution/ private educational institution. However, the State Government would provide grant to the concern autonomous institution/ private educational institution for making employer/s contribution until the institution is in a position to make the contribution itself. The contribution and investment returns would be deposited in an account to be known as pension tier-I account. No withdrawal would be allowed from this account during the service period. The existing provisions of defined benefit pension and GPF would not be available to the new recruits covered by the new defined contribution pension system.
(iii) Since new recruits would not be able to subscribe to GPF, they may also have a voluntary tier-II account, in addition to the pension tier-I account. However, employer would make no contribution to tier-II account. The assets in tier-II account; would be invested/managed through exactly the same procedure of for pensioner-I account. However, the employee would be free to withdraw part or all the "second tier" of his money anytime.
(iv) Employee can normally exist tier-I of the pension system at the time of retirement. At exist the employee would be mandatorily required to invest 40 per cent of pension wealth to purchase an annuity from a recognized Insurance company so as to provide for pension for the lifetimes of the employee and his dependent parent and his spouse oat the time of retirement. The remaining pension wealth would, however, be received by the employee as a lump-sum which he would be free to utilize in any manner . In case of employee existing the pension tier-I before retirement, the mandatory annuitisation would be 80 per cent of the pension wealth.
(v) There would be several pension fund manners who would offer mainly three categories of investment options. The pension fund manners and the record keeper would jointly give our easily understood information about past performance so that the employee is able to make informed choices of the investment options.
2. The effective date for operationalisation of the new pension system shall be 1st of April, 2005."
22. Pursuant to the aforesaid Notification dated 28.3.2005, amendment has been introduced in U.P. Retirement Benefit Rules 1961 known as "U.P. Retirement Benefits (Amendment) Rules, 2005", by the Governor in exercise of power conferred by the proviso to Article 309 of Constitution of India. The said Rules have been made applicable w.e.f. 1.4.2005, and it has been clarified therein that Rules shall not apply to employees whether temporary or permanent entering into services on or after 1st April, 2005 in relation to the affairs of State pensionable establishment,. Not only this, General Provident Fund ( U.P. ) Rules 1985 has also been amended by the Governor, in exercise of power conferred by the proviso to Article 309 of the Constitution of India, by means of General Provident Fund (U.P.) (Amendment) Rules, 2005, and these Rules have also been made applicable w.e.f. 1.4.2005. While dealing with conditions of eligibility in Rule-4, a proviso has been appended mentioning therein that no government servant entering into on or after 1st April, 2005 shall subscribe to the fund from the date of joining of service.
23. Once a policy decision has been taken to enforce new pension scheme, contribution pension system w.e.f. 1st April, 2005 with no exception accorded to new entrants to service and the only exception that has been carved out is in reference of candidates whose service would be of less than ten years on 1st of April, 2005, then option has been given to them to voluntarily opt for the new pension system in place of the existing pension scheme. Thus, it is imminently clear that new entrants in service have necessarily opt for new pension scheme, and have no escape route.
24. Once appointment of the petitioners have been made on 16.4.2015, 13.5.2005, 4.5.2005, 16.7.2005, 14.8.2006, 16.4.2005, respectively, then, admittedly entry in service has been made after enforcement of new pension scheme. In this view of the matter, petitioners cannot insist that they should be governed under old pension scheme on account of the fact that when the advertisement has been issued, old pension scheme has been in existence.
25. "Recruitment", "Advertisement", "Selection" and "Appointment" are different concepts under the service jurisprudence. "Recruitment" is the process of generating a pool of capable people to apply for employment in organization. Selection forms integral part of recruitment process, wherein from amongst eligible candidates, choice is made of person or persons capable to do the job as per the requirement. The process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment. "Appointment" is made, after selection process is over, issuance of letter in favour of selected candidates, is an offer to selected candidate to accept the office or position to which he has been selected. On acceptance of the terms and conditions of appointment, the selected candidates on joining has to be accepted as appointed, and he /she would be a new entrant and based on recruitment process, petitioner can not claim that she be brought within the scope and ambit of old pension rules in place of new pension rules. There is no dispute to the fact that process of selection was never altered and the entire selection was undertaken in accordance with the criterion which was laid down at the time of recruitment process. Therefore, assertion of the petitioner that the applicability of New Pension Scheme would amount to change in the terms and conditions of recruitment is untenable.
26. The Apex Court, in the case of Sudhir Kumar Kansal Vs. Allahabad Bank : 2011 (2) ESC 243 held, in the matter of grant of pension, either under the old rule or the new rule, proceeded to mention that in society governed by rule of law sympathies cannot override the Rules and Regulations, and in the said case view has been taken accordingly that appellant was not eligible to claim any benefit under Old Pension Scheme.
27. Inevitable conclusion thus is, that once New Pension Scheme has been introduced and it has been provided that such incumbents entering into service on or after 1st April, 2005 would would be governed under the New Scheme, then, said category of incumbents, as matter of right, cannot claim legally to be governed under the old scheme, and their claim of pension will fall within the ambit of Rules as has been introduced w.e.f. 01.04.2005.
28. Learned Counsel for the petitioner has placed reliance upon the judgments of the High Court of Uttarakhand rendered in Writ Petition 1170 (S/S) of 2010 : Ashutosh Joshi and others Vs. State of Uttarakhand and others, decided on 17.6.2013 and Special Appeal No.330 of 2013 : State of Uttarakhand and others Vs. Balwant Singh and others, decided on 26.6.2014. These judgments will not at all come to the rescue and reprieve of the petitioners, for the reasons that once categorical cut off date has been mentioned and new entrants w.e.f. 1st of April, 2005 will have to accept new pension scheme, then, as far as petitioners are concerned, no relief can be accorded to them.
29. It may be added that during the course of arguments reliance has also been placed upon K. Manjusree (supra), in which case the High Court of Andhra Pradesh for selection of District and Sessions Judges (Grade II) introduced minimum marks for the interview after Notification. The earlier recruitment never insisted upon the minimum marks to be obtained in the interview. The Supreme Court dealing with the situation took the view that the introduction of requirement of minimum marks for interview, after the entire selection process (consisting of written examination and interview) was completed, would amount to changing the rules of the game after the game was played which is clearly impermissible. The facts in K. Manjusree (supra) are not exactly identical to the facts of the present case as in the said case before the Supreme Court, no rules were framed by the employer laying down the minimum marks for the interview and the criterion of prescribing minimum marks for the interview was introduced after completion of the written examination as well as the interview. Whereas, in the instant case, though petitioners have been selected for the appointment on the post of Assistant Teacher (L.T.) Grade in the year 2004 but they got appointments and joined on the post in question after the cut off date prescribed in the New Pension Scheme floated by the State Government i.e. after 1.4.2005. Thus, the judgment of K. Manjusree (supra) is not applicable in the present facts and circumstances of the case.
30. In Rakhi Ray and others Vs. High Court of Delhi and others : 2010 (2) SCC 637, the Apex Court in para 24 has observed that a person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate. In Vijoy Kumar Pandey Vs. Arvind Kumar Rai and others : 2013 (11) SCC 611, the Apex Court has observed that preparation of selection list or panel does not by itself entitle the candidate whose name figures in such a list/panel to seek appointment or claim mandamus which can for good and valid reasons be scrapped by competent authority along with entire process that culminated in preparation of such a panel.
31. In view of the aforesaid legal propositions, the assertions of the petitioners that petitioners are entitled to get the benefit of Old Pension Scheme as they were got selected in the year 2003 in pursuance of the Notification dated 27.9.2002, has no substance as the date on which they entered into service is to be taken into account and not the year when they were declared successful..
32. For the reasons aforesaid, petitioners have failed to establish infringement of any fundamental right or statutory right so as to warrant interference under Article 226 of the Constitution of India and the writ petition is liable to be dismissed.
33. The writ petition is, therefore, dismissed. Costs easy.
Order Date : 1 June, 2016 Ajit/-
Hon'ble Dr. Devendra Kumar Arora,J.
The writ petition is dismissed vide order of date passed on separate sheets.
Order Date : 1.6.2016 Ajit/-