IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.10901 of 2006 1. Md.Kayumuddin Ansari, son of Shri Rahmat Ali Ansari, resident of Latif Market, Chokhandi Road, P.S. Sasaram, Sasaram 2. Krishna Kumari, D/o Shri Ramji Prasad Gupta, resident of village Sikarhgarh Tola (L.C.T. Ghat Road), near Mishra Medical Hall, P.O. + P.S. Kahalgaon, District Bhagalpur 3. Arun Kumar, son of Shri Parasnath Prasad, resident of Khajpura Ambedkar Path, P.O. B.V.College, P.S. Shastrinagar, Bailey Road, Patna- 800014 4. Seema Kumari, D/o Shri Ajeet Kumar Yadav, resident of village + P.O. Latra, P.S. Nawgachhiya, District Bhagalpur 5. Shashibhushan Kumar Sinha, son of Shri Janardan Prasad, resident of village Manara, P.S. Noorsarai, District Nalanda 6. Kiran Kumari, D/o Shri Jagdish Prasad, resident of village Bishnupur, P.O. Ranipur, P.S. Noorsarai, District Nalanda 7. Satish Kumar, son of Shri Jaleshwar Prasad Singh, resident of Health Institute Road, Beur, P.S. Gardanibagh, Anisabad, District Patna- 800002 8. Surendra Ram, son of late Ramdeni Ram, resident of village Mataya, P.O. + P.S. Madhopur Ram, District Vaishali 9. Jitendra Kumar Sinha, son of Shri Ramprit Prasad, resident of village Katari, P.S. Atari, District Gaya … Petitioners Versus 1. The State Of Bihar through the Chief Secretary, Govt. of Bihar, Patna 2. The Commissioner, Finance, Govt. of Bihar, Patna 3. The Commissioner cum Secretary, Health Services, Department of Health, Govt. of Bihar, Patna 4. The Joint Commissioner, Accounts Administration, Department of Finance, Contributory Provident Fund, Bihar, Patna 5. The Additional Secretary, Health and Family Welfare, Department, Vikash Bhawan, Patna 6. The State Drugs Controller, Directorate Health Services, Vikash Bhawan, Patna 7. The Bihar Public Service Commission, Bihar, patna, through its Secretary … Respondents ------------------- For the petitioners : Mr. Mithilesh Kumar Rai, Adv. For the State : Mr. Bijay Kumar Pandey, A.C. to G.P.20 For the BPSC : Mr. Sanjay Pandey, Adv. ------------------- 5. 3.8.2011 Having heard counsel for the parties as with regard to the following relief: “That this is an application for issuance of a writ in the nature of mandamus directing and commanding 2 the respondent authorities not to give effect to letter no. 690 dated 3.3.2006, issued under the signature of the Joint Commissioner, Accounts Administration, Department of Finance, so far as it relates to the petitioners, which is said to have been pursuant to Gazette notification bearing No. 614 dated 18.11.2005, whereby and whereunder it speaks of the fact that the persons having been appointed on 1.9.2005 or thereafter, shall have to be a member of the newly contributory find scheme, as also to treat the petitioner to have been appointed prior to 1.9.2005 for the purposes of application of the service condition in regard to pension.” this Court is of the considered opinion that as the Bihar Public Service Commission had ultimately recommended the names of the petitioners on 25.6.2004 in continuation to the earlier recommendation of 41 candidates vide its letter No. 39 dated 12.5.2003 by making it clear that the name of the petitioners shall be placed below the 40th candidate and above 41st candidate, there should have been no difficulty for the Government to allow the benefit of old pension scheme which was prevalent at the time of appointment of the 41st candidate. The issue in fact becomes very simple if it is taken into account that by one advertisement No. 2 of 2000 the post of Drug Inspector were advertised but when the result of the same was published in the year 2001 the petitioners were shown to have been unsuccessful in the written test, whereas the Commission had recommended the name of the other 41 persons in the year 2003 after conducting interview and preparing selection list. The 3 petitioners and the similarly situated ? persons alike the petitioners thereafter had assailed the result and recommendation of the Commission on a ground that they were illegally edged out without following the Government’s own scheme and policy as with regard to lowering qualifying mark in the written test for the backward categories. This Court in its judgment dated 16.5.2002 in L.P.A.No. 1283 of 1999 and its analogous cases infact had upheld such claim and had directed the Commission to re- determine the merit list on the basis of qualifying marks prescribed under the statutory Rules. The Commission thereafter had made such exercise and sent its recommendation on 25.6.2004 wherein the name of 11 persons including the petitioners were recommended and it was clarified that their place of seniority will be below Sl.No. 40 and above Sl.No. 41 of the earlier list dated 12th May, 2003. Consequently such recommendation of the petitioners had not only been accepted by the Government but an offer of appointment was also issued to them on 11.8.2005 communicating that the Government had already decided them to appoint on the post of Drug Inspector and as such they should give their option of three districts for their respective place of posting. While all these things had already happened, the Government had taken a decision that from 1.9.2005 any person appointed in the Government service will not be entitled to the existing policy of pension being paid to them under the Bihar Pension Rules and they would be governed by a new contributory pension scheme framed by the government. Eventually when the petitioners were 4 also appointed by a notification dated 28.11.2005 they were also deprived of the benefit of pension under old policy and scheme governed by Bihar Pension Rules and they were also coerced to accept the new policy of Contributory Pension Scheme which according to them is less beneficial in comparison to the earlier scheme. It is with this grievance that this writ application has been filed that as they are senior to the persons appointed on the basis of same advertisement and selection process they cannot be prejudiced in the matter of service condition as was given to other persons including a person below them in the merit list. Learned counsel for the Commission has clarified that the Commission had gone into this exercise and had made its recommendation very clear that the place of the petitioners as per roaster and reservation in view of the direction given by this Court in the judgment dated 16.5.2002 in L.P.A. No. 1823 of 1999, would be below Sl.No.40 of the original list and above 41 of the same list. In fact the Commission has itself placed the revised recommendation dated 25.6.2004 and Mr. Pandey, appearing on behalf of the Commission, has also very fairly produced even the earlier recommendation 12.5.2003, which has been kept on the records of this case. From the simultaneous reading of the two recommendations of the Commission dated 12th May, 2003 and 25.6.2003 it would become absolutely clear that the petitioners will be deemed to be appointee of the same transaction and barring the benefit of payment of salary for the period they had not worked on account of denial of their appointment they were entitled for all 5 other benefits including seniority to which were extended to other 41 Drug Inspectors appointed earlier in view of the recommendation of Commission in its letter dated 12.5.2003. In that view of the matter, this Court would find it difficult to accept the submission of the learned counsel for the State who has given only one explanation by way of justification of the Government decision that the petitioners being appointee after 1.9.2005 were to be governed by the new contributory pension scheme. Such submission of learned counsel for the State is based on an arithmetical calculation that since the appointment letter of the petitioners was issued after cutoff date of 1.9.2005 they will be automatically deprived from availing the earlier benefit of pension under Bihar Pension Rules which was given to the appointees of the year 2003. This Court however would fail to understand the logic of such submission, inasmuch as when the petitioners were subjected to same selection process in terms of the same advertisement and ultimately their case was recommended by the Commission in continuation of the same merit list by placing them above a person who was originally recommended and appointed, it would be difficult to accept such justification given by the State Government that the petitioners still will be deprived of the benefit of the old pension scheme because they were appointed after 1.9.2005. It was not the fault of the petitioners that the Commission and/or the Government did not follow its own policy of following its decision regarding lower qualifying marks for the candidates belonging to backward 6 category and therefore, if the Government and the Commission had to be directed by this Court in the case filed by the similarly situated persons for drawing a fresh merit list, and in such merit list the name of the petitioners had figured above someone who was originally recommended, they cannot be deprived of the benefit which has been given to the originally recommended candidates. It is infact this aspect of the matter which would clinch the issue in favour of the petitioners inasmuch as it is well settled by now that old vacancies have to be governed by the old rules and the new Rules coming into force after beginning of process of selection as per old Rules cannot be made applicable. Reference in this connection may be usefully made to the judgment of Apex Court in the case of P. Mahendran Vs. State of Karnataka reported in (1990) 1 SCC 411. Moreover a right to receive pension is condition of service as has been held by the Apex Court in the case of Union of India Vs. Gurnam Singh reported in (1982) 2 SCC 314 and thus to be governed in accordance with the terms and condition of the advertisement and the existing Rules inasmuch he acquires a right to be considered for selection and appointment in accordance with the then existing Rules. This Court would accordingly hold that the petitioners being appointees of the old transaction of Advertisement No. 2 of 2000 in continuation with old appointees of 2003 will be entitled to get the benefit of old pension scheme and they will not be governed by the new Contributory Pension Fund Scheme coming 7 into force w.e.f. 1.9.2005. It has to be also kept in mind that even the original appointment letter issued on 26.11.2005 to the petitioners, did not contain any clause and/or condition that they will be governed by the new Contributory Pension Fund Scheme and therefore, the resolution of the Finance Department, contained in Annexure 10 dated 1.9.2005, cannot be made applicable in the case of the petitioners as it was not made part of their service condition also in their appointment letter. For all these reasons, this application is allowed and the respondents are directed to give benefit of old pension scheme under Bihar Pension Rules to the petitioners as was extended to other 41 Drug Inspectors appointed out of the same advertisement and transaction. (Mihir Kumar Jha,J.) Surendra/