CWP NO.20501 OF 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 12.5.2009 Parveen Kumar and another ...Petitioners VERSUS State of Punjab & Others …Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.Pankaj Jain, Advocate for the petitioners Mr.BS Chahal, DAG, Punjab Permod Kohli, J. (Oral) The petitioners applied for selection/appointment to the posts of Clerk through the Subordinate Service Selection Board in the year 1997. Written test was held on 1.2.1998 and the result declared on 26.5.2001. The Subordinate Service Selection Board recommended the names of the petitioners alongwith others for appointment in various departments of the State. It is alleged that the petitioners were not granted appointments, even though they were selected, on account of enforcement of Model Code of Conduct due to Assembly Elections. Even after expiry of Model Code of Conduct, the petitioners were not appointed. However, some of the candidates from the same selection were appointed. The petitioners CWP NO.20501 OF 2008 2 accordingly filed CWP No.10315/2002 which came to be allowed vide judgment dated 18.8.2003 (Annexure P-1). While allowing the said writ petition, a Division Bench of this Court passed the following directions:- “....The ban imposed on the policy decision taken by the Cabinet Sub Committee on 24.04.2002 (as is apparent from Annexure R-3) will also be inapplicable in the facts and circumstances of this case. The appointment of the petitioners must relate back to a date earlier to 16.1.2002 when their cases were forwarded to various Departments of the State Government for appointment when persons lower in the merit list viz-a-viz the petitioners were substantively appointed. In view of conclusions drawn above, neither the Model Code of Conduct which was enforced w.e.f. 16.01.2002 will apply to the petitioners, nor the decision of the Cabinet Sub Committee dated 24.04.2002. For the reasons recorded above, the instant petition is allowed. The respondents are directed to issue formal appointment orders to the petitioners and allow them appropriate posting orders within 4 weeks from the date of receipt of a certified copy of the order. The appointment of the petitioners will relate back to the date when persons junior to them were appointed against the posts of Clerks. The petitioners, however, would not be entitled to back wages under the principle of “No Work No Pay”.” CWP NO.20501 OF 2008 3 Consequent upon the aforesaid directions, the petitioner were appointed vide order dated 4.3.2004 and 15.12.2005. The grievance of the petitioners in this writ petition is that they are being denied the benefit of pension on the ground that their appointment is after 1.4.2004 and their appointments are governed and regulated by the subsequent Scheme, namely, the New Defined Contribution Pension Scheme and not the Pension Rules in vogue in the State of Punjab. The respondents passed the impugned order dated 2.4.2008 (Annexure P-8) whereby the GPF Accounts earlier allotted to the petitioners have been closed and it has been ordered that the petitioners be allowed Permanent Account Number under the New Defined Contribution Pension Scheme. Further the amount deposited in the GPF Account has been ordered to be paid to the petitioners. By subsequent order dated 27.3.2008 (Annexure P-9), a further direction has been issued for making deduction from the salary of the petitioner for being deposited in the Permanent Pension Account Number allotted under the New Defined Contribution Pension Scheme. The petitioners have approached this Court seeking following main relief(s):- “i) to issue a writ in the nature of Certiorari or any other appropriate writ, order or direction quashing the impugned orders dated 2.4.2008 (P-8) and 27.3.2008 (P- 9) being against the mandate of the orders of this Hon'ble Court passed in CWP No.10315 of 2002 dated 18.8.2003; ii)to issue a writ in the nature of Mandamus directing the CWP NO.20501 OF 2008 4 respondents to treat the date of appointment of petitioners as 01.04.2002 for all intent and purposes; iii)to issue a writ in the nature of Prohibition or any other appropriate writ for staying the operation of the impugned orders (P-8) and (P-9) till the pendency of the instant civil writ petition before this Hon'ble Court. In sum and substance, the grievance of the petitioners is that they are entitled to the benefit of pension under the Pension Rules and the impugned orders shifting the petitioners to the New Defined Contribution Pension Scheme made applicable after 1.1.2004 is illegal and contrary to law. In order to support the contention, reliance is placed upon the judgment of this Court dated 18.8.2003 passed in CWP No.10315/2002 whereby the petitioners were directed to be appointed. In the aforesaid judgement, it is specifically directed that the appointment of the petitioners must relate back to a date earlier to 16.1.2002 when their cases were forwarded to various Departments of the State Government for appointment when persons lower in the merit list vis-a-vis the petitioners were substantively appointed. Though the benefit of appointment has been given notionally, but the fact remains that the petitioners' appointments have been ordered to be treated way back to the year 2002. Admittedly, the New Defined Contribution Pension Scheme came into operation on 1.1.2004 and all employees appointed on or after the said date were ordered to be governed by the New Defined Contribution Pension Scheme. The aforesaid judgment granting appointment to the petitioners retrospectively from 2002 has attained finality and in fact the petitioners' appointment has been made in implementation of the said judgment. The respondents cannot be permitted CWP NO.20501 OF 2008 5 to implement the said judgment in part. As a matter of fact, the judgment having attained finality, the respondents are duty bound to implement the said judgment in letter and spirit thereby giving notional benefits of appointment to the petitioners way back to year 2002. Under these circumstances, this writ petition is allowed. Impugned orders dated 2.4.2008 and 27.3.2008 are hereby quashed. The petitioners shall be granted benefit of pension under the Pension Rules in vogue on 16.1.2002 i.e. before the operation of the New Defined Contribution Pension Scheme. (PERMOD KOHLI) JUDGE 12.5..2009 MFK NOTE:Whether to be referred to the Reporter or not:YES