* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 6525/2016 Reserved on: 27th July, 2017 % Date of Decision: 11th September, 2017 V RAMANA MURTHY & ORS Petitioners Through: Ms.[ENTITY], Adv. versus UNION OF INDIA & ORS Respondents Through: Ms.[ENTITY], Adv. W.P.(C) 10141/2016 CT / WELDER GOPA RAM & ORS Petitioners Through: Ms.[ENTITY], Adv. versus UNION OF INDIA & ORS Respondents Through: Mr.[ENTITY], CGSC W.P.(C) 5904/2017 NEERAJ KUMAR SHARMA & ORS Petitioners Through: Mr.[ENTITY], Adv. versus UNION OF INDIA & ORS Respondents Through: Mr.[ENTITY], CGSC, UOI with Mr.[ENTITY], Dy. Comdt., BSF W.P.(C) 6585/2016 CHANDRA SHEKHAR AND ORS Petitioners Through: Ms.[ENTITY], Adv. versus [CASE NUMBER] matters Page 1 of 16 UNION OF INDIA AND ORS Respondents Through: Mr.[ENTITY], Mr.[ENTITY], Advs. W.P.(C) 3956/2017 Reserved on: 28th July, 2017 % Date of Decision: 11th September, 2017 SANTOSH KUMAR SINGH AND ORS Petitioners Through: Ms. [ENTITY], Advocate versus UNION OF INDIA AND ORS Respondents Through: Ms. [ENTITY], Advocate with Mr. [ENTITY], Advocate CORAM: HON'BLE MR. JUSTICE [ENTITY] HON'BLE MR. JUSTICE [ENTITY] [ENTITY], J.
In view of similarity of the issue involved in these writ petitions, they are being disposed of by this common judgment.
2. The petitioners, [ENTITY] & Ors in [CASE NUMBER], CT/[ENTITY] & Ors in [CASE NUMBER], and [ENTITY] & Ors in [CASE NUMBER], were appointed and had joined as Constable (General Duty) in the [ACT] after 1st January, 2004 and hence, were not covered under the [ACT] (hereinafter referred to as the "Old Pension Scheme"). Instead, they have been covered by the new Contributory Pension Scheme effective from 1st January, 2004 (hereinafter referred to as the "New Pension Scheme").
3. These petitioners do not dispute that they had joined as Constables on or after 1st January, 2004 and as per [SECTION] of the aforesaid Pension Rules, they would not be covered by the Old Pension Scheme, for the said Rules apply to the government servants appointed on or before 31 st December, 2003.
4. The petitioners plead discrimination and violation of [SECTION] of the [ACT] on the ground that in the recruitment held for Punjab and Haryana Zone in October/November-2003, the Constables were appointed and had joined before 31st December, 2003 and have been given the benefit of the Old Pension Scheme.
5. In [CASE NUMBER], [ENTITY] & Ors. Vs. Union of India and Ors., and [CASE NUMBER], [ENTITY] & Ors. Vs. Union of India and Ors., the facts and the grounds of challenge differ slightly. In [ENTITY] & Ors., the petitioners- 51 in number- had participated and were selected as Sub-Inspectors pursuant to the [ACT], which was held on 7th September, 2003. These petitioners were initially declared unfit on different grounds and had applied for a review by the Review Medical Board. The Review Medical Board had declared them fit and thereafter, they were appointed as Sub-Inspectors on 3rd March, 2005 in different Armed Police Forces, namely, BSF, CISF, CRPF, and Indo-Tibetan Border Police Force. The petitioners in W.P. (C) 6585/2016 [ENTITY] & Ors. Vs. Union of India and Ors. - 192 in number - had also participated in the same examination for recruitment for the post of Sub-Inspector in Central Police Organization held on 7th September, 2003. It is asserted that the upper age limit prescribed was to be seen as on 1 st August, 2003. The petitioners in this case, upon qualifying the written examination conducted by the Staff Selection Commission, were asked to appear for the Physical Efficiency Test, medical examination, and interview. The final results were declared on 22-28 May, 2004 and the 192 petitioners were selected to join the Border Security Force. We may note that the respondents have filed counter affidavit in the writ petition filed by [ENTITY] and others, which has been also read in the writ petition filed by [ENTITY] and others.
6. The petitioners in all the writ petitions primarily rely upon the Division Bench decisions of this Court in [CASE NUMBER], [ENTITY] Vs. UOI & Ors., dated 26th May, 2011, [CASE NUMBER], [ENTITY] Vs. UOI & Ors. dated 2nd November, 2012, [CASE NUMBER], [ENTITY] & Ors. Vs. Union of India & Ors. dated 12th February, 2015, and [CASE NUMBER], Inspector [ENTITY] & Ors. Vs. UOI & Ors. dated 27th March, 2017. Pursuant to the decision of the High Court in the case of [ENTITY] (supra), the respondent no. 2, namely, the Director General of the Border Security Force had issued the office order dated 13th January, 2016, acknowledging that the matter had been examined in detail and after inter-Ministerial consultation, it had been decided to implement the order of the High Court to extend benefit of the Old Pension Scheme to all similarly situated Sub-Inspectors selected through [ACT], subject to the condition that they would not be entitled to back wages and seniority. This was notwithstanding [SECTION] of the Pension Rules which, as noticed above, states that the old pension scheme would apply to government servants appointed on or before 31st December, 2003.
7. Turning to the question of discrimination and decisions of the Delhi High Court, allowing the writ petitions by accepting the aforesaid plea, we would like to refer to the facts which were noticed and form the foundation of the ratio declared in the said cases. In [ENTITY] (supra), the petitioners, who had applied for the post of Assistant Commandant in the Central Police Forces, were declared temporarily medically unfit and were subjected to review medical evaluation in which they were declared fit on 14th October, 2004. On 2nd November, 2004, which is 18 days after the petitioners therein were declared medically fit, candidates who were declared fit at the first instance joined the Indo-Tibetan Border Police as Assistant Commandants. There was no explanation as to why the candidates who were declared medically fit on 14th October, 2014 could not be issued appointment letters till 2nd November, 2004. This, the Court observed, was a mystery and remained unexplained. The petitioner therein was issued appointment letter on 8th August, 2005, i.e. after nearly 10 months. Subsequently, when the final seniority list of Assistant Commandants in Indo-Tibetan Border Police was finalized, the petitioner therein was treated as junior, irrespective of the merit position in the Select List, for the reason that he had joined or were appointed at a later date. Discrimination was apparent, for the appointment was by way of selection, albeit the relative merit position obtained in the selection was ignored and given a go-bye and fortuitous circumstances over which the petitioner had no control, i.e., being declared temporarily medically unfit, gave unfair advantage and benefit to those lower down in the merit list, i.e. those who had been declared medically fit in the first instance. In this context, the Court held that the delay in issue of appointment letters as Assistant Commandants was not the result of anything created by the petitioner but was a result of a supine indifference and negligence on part of the authorities. Thus, it was directed that the seniority of the entire batch would be on the basis of merit position in the Select List irrespective of the date of joining. Direction was also issued to constitute a Review Departmental Promotion Committee for the post of Deputy Commandant. The facts of the case are squarely distinguishable. It was a seniority dispute, and the injustice of treating the petitioner higher in the merit list as a junior to those lower in the merit list, was struck down. Fixing of seniority on the basis of date of joining, when there were intervening fortuitous circumstances and faults on part of the authorities was in violation of and impinging [SECTION] of the [ACT].
8. In the case of [ENTITY] (supra), the petitioner had participated in the SCC Combined Graduate Level Examination-2000 for selection to the post of Sub-Inspector in Central Para Military Forces. After having cleared the written examination and the Physical Efficiency Test, he was declared unfit in the medical examination conducted on 4 th February, 2002. The petitioner on 25th February, 2002 had filed an appeal for being re- examined by the Review Medical Board, but the examination was held after nearly one year on 18th January, 2003 and he was thereupon declared fit. Others, who were declared medically fit at the first instance, had joined the respective paramilitary forces in March, 2003. However, the petitioner was appointed as a Sub-Inspector in the CRPF only in April, 2004 and was treated as a member of the New Pension Scheme. Referring to the decision in [ENTITY] (supra) and an earlier decision in [CASE NUMBER], [PRECEDENT]., the petitioner therein was held entitled to benefit of the Old Pension Scheme.
9. In the case of [ENTITY] (supra), the position was somewhat similar and the decision in the said case makes reference to [ENTITY] and [ENTITY] (supra). The petitioners therein had applied pursuant to the advertisement published in Employment News in 2002 for the post of Sub-Inspectors in the four Central Paramilitary Forces. The results were declared on 28th July, 2003 and letters offering appointment in CISF, CRPF and Indo-Tibetan Border Police were issued in October, 2003. However, in the case of BSF, the letters of appointment were issued in the month of December, 2003. Due to this delay, the date of joining in the BSF was after 1st January, 2004. The New Pension Scheme was implemented with effect from 1st January, 2004. Consequently, the petitioners therein were denied benefit of the Old Pension Scheme as they had joined BSF, but others who had appeared in the same examination and had joined other paramilitary forces, were covered under the old pension scheme. Directions were accordingly issued that the petitioners therein must be given benefit of the Old Pension Scheme, which was in vogue till 31st December, 2003, and they must not be treated as members of the New Pension Scheme. Consequently, the respondents upon consideration, as noticed above, have issued order dated 13th January, 2016, stating that the Sub-Inspectors selected through [ACT] would be entitled to benefit of the Old Pension Scheme, which was in vogue till 31st December, 2003.
10. The position in the case of Inspector [ENTITY] & Ors. (supra) is somewhat similar. The petitioners therein had applied and appeared in the [ACT] for the post of Inspector. However, they were declared medically unfit, but were subsequently declared fit on medical examination by the Review Medical Board. Having regard to the circumstances of the case, it was held to be grossly unfair and arbitrary to deny the petitioners benefit of the Old Pension Scheme because of fortuitous circumstances which were beyond their control. There was an inordinate delay in holding of the review medical examination. It was also noticed that the petitioners and others had opted for the BSF. If they had known that by opting for the said paramilitary force they would be deprived of the benefit of the Old Pension Scheme, they might not have opted for the said force.
11. One contention and objection raised by the respondents in Inspector [ENTITY] and Ors. (supra) was delay and laches. The contention was rejected, because of parlous discrimination. Noticeably, we may record that the authorities had in the earlier cases of [ENTITY] and [ENTITY] (supra) not taken the plea of delay and laches. In these circumstances, we should, following the ratio in Inspector [ENTITY] and Ors. (supra), not allow the respondents to take the said plea in the present writ petition. A word of caution on the question of delay and laches is required. The new Pension Scheme is contributory, as the Government also contributes to the pension fund which is maintained by a third party. Belated challenges and claims to be covered under the Old Pension Scheme even after a decade would result in immense prejudice for the positions have changed, and restitution would not be possible. This would be contrary to, and impermissible under the terms of the statutory new pension scheme, which does not specify or fix a stipulated return. It may be important for the Government to retrieve their contribution under the New Pension Scheme. The employees who are also covered under the New Pension Scheme would have to abide by the terms thereof. The retracing of steps or turning back the clock may not be possible.
12. On studied examination we feel the petitioners in the present writ petitions are not entitled to succeed and the writ petitions have to be dismissed, for in the present case there is no discrimination or violation of [SECTION] of the [ACT].
13. The cases relating to selection to the post of Sub-Inspector vide [ACT] stand altogether on a different footing. None of the candidates who were successful in the said examination were issued appointment letters or had joined on or before 31st December, 2003. The fact that the examination was held in 2003 would not confer or give them any right. The cut-off date of 31st December, 2003 and the condition or stipulation treating government servants who had joined on or before 31st December, 2003 as a separate class is not discriminatory and iniquitous. The criteria fixing the date of joining and not the date of advertisement or written examination cannot be faulted as discriminatory or inequitable and, therefore, contrary to [SECTION]. The relied upon judgments do not hold so. This is not their ratio, finding and direction. A similar contention was raised and rejected by this Court in [PRECEDENT] through [PRECEDENT]. The petitioners therein were issued appointment letters prior to 31st December, 2003, but the actual date of joining was post 31 st December, 2003. The contention was rejected, inter alia, holding as under:-
"2. The main contention of the petitioners is that the offer of appointment having been made to them prior to 1.1.2004 and their inability to join the post by 31.12.2003 not being attributable to any lapse on their part, the benefit of [ACT], cannot be denied to them The Government was well within its right to discontinue the applicability of [ACT] and applying a new pension scheme to those who were to join the service after promulgation of the new pension scheme. It was for the Government to decide, in its wisdom, as to whether it wanted to apply the new pension scheme to those who had entered service on or after 1.1.2004 or to those who were offered appointment on or after 1.1.2004. The Government having decided to discontinue the applicability of [ACT] and to extend the new pension scheme to all those who were to join service on or after 1.1.2004, irrespective of the date on which offer of appointment was made to them, the petitioners do not have any legal right to claim applicability of [ACT] to them. It is not as if the new pension scheme has been introduced after the petitioners had joined service of the Government. The petitioners were not in the service of the Government prior to 1.1.2004 and, therefore, they had no right to the posts of LDC in District Sessions Court, when the new scheme was promulgated by the Government. Thus, this is not a case of service condition of the employees being varied by the Government to their detriment. Even if the petitioners could not join the service on or before 31.12.2003 on account of no fault on their part that would make no difference since the relevant date is the date of joining the service and not the date on which the employment was offered to them. If we accept the contention that the offer of appointment having been made to the petitioners prior to 1.1.2004, they are entitled to be governed by [ACT], that would be contrary to the terms of the scheme framed by the Government. We must take note of the fact that their necessarily has to be some time lag between the making of offer for appointment and the selected candidate joining the service of the Government because medical examination and police verification must necessarily precede the joining of service by him If the medical examination of some persons who are offered employment along with the petitioners was conducted and/or their police verification was done before the medical examination and/or police verification of the petitioners and consequently, those persons were able to join service on or before 31.12.2003 no benefit on that account accrues to the petitioners since completion of medical examination and police verification depends upon a lot of factors including the place where the candidate is residing, the hospital in which he is to be medically examined, the date fixed by that hospital for medical examination, the time taken by the concerned police official in verification of the antecedents etc. If a person is offered employment say in last week of December, 2003, he cannot claim benefit of [ACT] because some time is necessarily required for his medical examination and police verification and, therefore, it will not be possible for him to join the service of the Government on or before 31.12.2003.
5. However, in the case before us, there was no order passed by any Court restraining the respondents from making appointments to the post of LDC in District & Sessions Court. They were in a position to join service soon after their medical examination and police verification was complete. On the other hand, in the case of Dr. [ENTITY] (supra), relief was granted to the petitioners, primarily applying the principle that the order of the Court cannot prejudice anyone. Had there been no stay order in that case, the respondents in that case would have joined service prior to 01.01.2004, since not only the offer of appointment had been made to them, even their medical examination had been conducted well before the cut-off date of 01.01.2004. They were prevented from joining service, only because of stay order granted by the Court. On the other hand, none of the petitioners before this Court could have been allowed to join service prior to 01.01.2004 since the character verification in respect of all the three petitioners was received after 31.12.2003. This judgment, therefore, cannot be applied to the case before us.
6. This is not the case of the petitioners that their inability to join on or before 31.12.2003 was attributable to any negligence or lapse on the part of the respondents. If inability of the petitioners to join service on or before 31.12.2003 is not attributable to the respondents or to any order passed by a Court and was only on account of the time taken by the Hospital/Police in conducting medical examination and police verification, the petitioners cannot claim parity with the petitioners in the case of Dr. [ENTITY] (supra). For the reasons given in the preceding paragraphs, we find no merit in the writ petition and the same is hereby dismissed."
14. An identical view has been taken in [ENTITY] & Ors. Vs. North Delhi Municipal Corporation of Delhi & Ors., 236 (2017) DLT 163 (DB), wherein reference was made to other case laws. In paragraph 18 of the said judgment, it has been held:
"18. We are not inclined to accept the reasoning of the Central Administrative Tribunal, Ernakulam Bench in the decision dated 28.06.2013 in [CASE NUMBER], [ENTITY] v. The Union of India, which records that benefit of the old pension scheme would be available to the applicants therein for the reason that the vacancies had arisen and related to the period prior to 1 st January, 2004. The ratio and reasoning is unacceptable in view of the prescribed cut-off date of 1.1.2004, with reference to the date of joining and not the date of vacancies. The aforesaid criterion, i.e. the date of joining, is not arbitrary or whimsical but is with salutary and good reason. Courts cannot substitute the said criterion with another criterion as has been done by the Tribunal in the case of [ENTITY] (supra), wherein the date of vacancy, it has been observed, would be the fair and just criterion. This is impermissible and cannot be accepted. The courts or judicial forums cannot legislate and substitute dates. It is well-settled that the courts do not interfere with cut-off date as these are matters of discretion and within the domain of the Executive or the Legislature. The power to specify a date from which terminal or pensionary benefits, as the case may be, shall take effect is concomitant of the power of the State or Corporation to change the conditions of service unilaterally. So long as the date specified is reasonable and not wayward with reference to the requirement of fixing a point of time etc., no interference by the Court is called for. (See [PRECEDENT]). When classification is permissible, choice of date being a basis of classification, the date so fixed cannot always be dubbed as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the given circumstances. When a line or point is to be fixed and there is no mathematical formula or logical way to fix the same precisely, the decision of the Legislature or its delegate must be accepted unless it can be said that the date or point so fixed is widely off the reasonable mark. (See [PRECEDENT] and [PRECEDENT]). Whenever a law is enacted or an amendment is made, the same has to be with effect from a particular date. When it is otherwise permissible and legitimate to fix a date, the date so fixed is open to scrutiny on the limited grounds of whimsicality and capriciousness. If the choice made is burdensome to those to whom the wrong done is sought to be rectified, it would be open to the Court to examine the choice of date and find out whether it has resulted in any discrimination. (See [PRECEDENT]). Further, it is a well-settled and accepted principle of law that the name of a candidate appearing on a select list would not give him an indefeasible right to appointment and it would be open to the Government to not fill up the vacancies. The Government cannot be compelled to fill up vacancies where the decision not to do so is sound and rational, especially in the case of direct recruits. (See [PRECEDENT]), [PRECEDENT], [PRECEDENT]). Thus, we would hold that there can be a gap between the date of vacancy, selection and appointment. On some occasions, appointments may not be made at all or may be made after a long delay."
15. When we turn to the writ petitions filed by [ENTITY] & Others, [ENTITY] & Others, and Constable [ENTITY] & Others it is noticed that the plea of discrimination is predicated on the contention that some other candidates were selected for the post of Constable (GD) in the BSF pursuant to the recruitment rally held in Punjab and Haryana in October/November, 2003 and in the said cases, the appointment letters were issued in December, 2003. However, in the case of [ENTITY] & Others, advertisement for the Recruitment rally for the State of Andhra Pradesh, Karnataka, Kerala, Tamil Nadu, Lakshadweep and Pondicherry States/Union Territory was published in August, 2003. Thereafter, Recruitment rally was held in Bangalore in October, 2003 and appointment letters were issued on or after 1st January, 2004. In the case of Constable [ENTITY] & Others, advertisement was published in August/September, 2003 for recruitment rallies to be held at SHQ, BSF Campus, Bikaner, Rajasthan on 10th October, 2003. After the selection process, appointment letters were issued in February/March, 2004. In the case of Constable [ENTITY] & Others pursuant to the advertisement published in September, 2003, recruitment rally was held in October/November, 2003 at Chhawla, Najafgarh Road, Delhi. Thereafter, call letters were issued in December, 2003 and candidates were asked to appear before the Commandant on 5th and 10th January, 2004. The date of joining was subsequent to 1st January, 2004. Thus, the petitioners were denied benefit of the Old Pension Scheme.
16. Selection process does take time for varied and different reasons. It is not the case of the petitioners that there was a deliberate delay in the selection process. There could be a variety of administrative and logistical reasons or causes for the time taken to complete the selection process and issue the appointment letters, which we do not find is per se inordinate and prolonged. Today after nearly 14 years, it would be impossible and unfair to ask the respondents to offer and give cogent explanation as to the reason why the selection and issue of appointment letters took the time that it did. The petitioners have remained silent during the intervening period and had apparently accepted the position that they would be governed by the New Pension Scheme. There were separate advertisements, each initiating a separate selection process. Expeditious and early selection and appointment of candidates subsequent to the recruitment rally held in Punjab and Haryana cannot be a ground to urge that there was discrimination and violation of parity. On being asked, counsel for the petitioners have accepted and admitted that the petitioners have not challenged or questioned the seniority of those selected and appointed in the recruitment rally held in Punjab and Haryana. The date of joining, as per Rules, is the criterion to determine inter se seniority. The date of initiation of the recruitment process is not the criterion. This being the position, the ratio in [ENTITY] & Ors. (supra) and [ENTITY] & Ors. (supra) would be applicable. The other set of decisions, which have been distinguished above, would not apply. In the said cases some officers from the same batch of candidates, i.e. same selection process had joined before 31.12.2003, but the "petitioner" for fortuitous reasons had joined later. Thus some candidates from the same selection process were given benefit of the Old Pension Scheme, but other candidates who could not join earlier for no fault of theirs, were denied the benefit and were treated as members of the New Pension Scheme. This is not the position in the present case.
17. However, as a matter of abundant caution, we would observe and clarify that in case any of the selected candidates belonging to the same selection batch have been granted benefit of the Old Pension Scheme, which the petitioners have been denied, the petitioners would be entitled to raise the said claim before the authorities and, if denied the said benefit, can approach the appropriate forum for relief. The aforesaid observations would not confer any right on the petitioners who are not being discriminated, in the sense that they have been denied the benefit of the Old Pension Scheme, whereas others appointed and selected through the same selection process, i.e. pursuant to the same advertisement and recruitment rally, have been covered under the old pension scheme.
18. With the aforesaid observations and caveat, the writ petitions are dismissed without any order as to costs.
([ENTITY]) JUDGE ([ENTITY]) JUDGE September 11th, 2017 NA/ssn