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Uttarakhand High Court · body

2012 DIGILAW 695 (UTT)

Balwant Singh v. State of Uttarakhand

2012-11-20

V.K.BIST

body2012
Judgment Heard learned counsel for the parties. 2. Since the controversy involved in both the writ petitions is one and same, both the writ petitions are being decided by common judgment. 3. Brief facts relevant to the controversy involved in the petitions are that in the month of September, 2005 the State Government advertised the posts of Assistant Teachers for Government Primary Schools in District-Almora and District Bageshwar. In pursuance of said advertisement, the petitioners applied for the posts. They were called for interview and they participated in the interview on 28.09.2005. Petitioners were selected and by one order dated 29.09.2005 all the selected candidates including the petitioners were asked to join within 15 days from the date of issuance of the order. Some candidates joined before 30.09.2005 but all the petitioners joined after 01st October, 2005. 4. At the time of issuance of appointment orders and joining of service by the petitioners a "Defined Benefit Pension Scheme" (for short old scheme) was in existence. On 25th October, 2005, State Government issued a notification by virtue of which the State Government introduced a new scheme namely "Defined Contribution Pension System" (for short new scheme). Relevant portion of the Government notification dated 25th October, 2005 is reproduced below: "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 entrants to the service to the service of the State Government and all State-controlled autonomous institutions and State aided private educational institutions where the existing pension scheme is patterned on the scheme for Government employees and is funded by the consolidated fund of the State Government:- (i) from 1st of October, 2005, the new defined contribution pensions 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 October, 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 contribution equal to 10 percent of the salary, dearness pay and dearness allowance. (ii) Under the new defined contribution pension system, the employee would make a monthly contribution equal to 10 percent of the salary, dearness pay 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 concerned 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 1 account. No withdrawal would be allowed from this account during the service period. The existing provisions of a defined benefit pension and GPF would not be available to the new recruits covered by the new defined contribution pension system. (iii) ................................. (iv) ................................. (v) .................................. 2. ................................. 3. An employee recruited/appointed on or after 1st October, 2005 will fill up Form-1 (Annexure) in Hindi and English and submit to Head Office/Drawing and Disbursing Officer (D.D.O.). Inturn Head of Office/DDO will send the information of the such employees in Form-2 (Annexure) to the concerned treasury and Director, Accounts and Entitlement (A&E). Director, A&E will prepare a data base based on Form-1 and Form-2 and submit the details to Central Record Keeping Agency (CRA) and Pension Fund Managers appointed by Govt. of India. 4. ......................................................... 5. ......................................................... 6. ......................................................... 7. The new Pension Scheme will come into force 1st October, 2005." 5. Aforesaid notification provided that from 1st October, 2005, the new scheme would apply mandatorily to all the new recruits to the service of the State Government and then existing provision of old scheme would not be available to the new recruits. It was also provided that employee recruited/appointed on or after 1st October, 2005, will fill up the Form-1 in Hindi & English and submit to Head Office. In the last paragraph of the said notification, it was provided that the new scheme will come into force from 1st October, 2005. 6. All the petitioners joined service in the 1st week of October, 2005. Sometime after their joining, the respondent started deducting the contribution under the new scheme by treating them covered under the new scheme. The petitioners objected the same and filed the present writ petition for direction to the respondents not to deduct the contribution under the new scheme. 7. All the petitioners joined service in the 1st week of October, 2005. Sometime after their joining, the respondent started deducting the contribution under the new scheme by treating them covered under the new scheme. The petitioners objected the same and filed the present writ petition for direction to the respondents not to deduct the contribution under the new scheme. 7. The submissions of learned Senior Advocate for the petitioners is that the new scheme notified by the notification dated 25th October, 2005 is not applicable to the petitioners as the petitioners were appointed prior to 1st October, 2005. They were given appointment letter on 29th September, 2005 along with others. Some of the candidates joined prior to 30th September, 2005 and they are being given benefit of old scheme. They further submitted that since the petitioners were appointed along with others before 1st October, 2005 and others have been given benefit of old scheme, the petitioners are also entitled for the same. Learned counsel for the petitioners submitted that though petitioners filled up form-1 but that was done in compelling circumstances and that also after five years of their service. The deduction is being made against their wish, though the petitioner never opted for the new scheme. 8. Shri H.M. Raturi learned Addl. Chief Standing Counsel for State opposed the petitioner and submitted that since all the petitioners joined after 1st October, 2005 they are covered by the new scheme as same clearly provides that new scheme would be applicable w.e.f. 1.10.2005. Learned Addl. Chief standing Counsel referred paragraph 1 (i) of the notification and submitted that in the notification itself it was made clear that then existing provision of old scheme would not be available to the new recruits. He referred last paragraph of the notification which states that the new scheme will come into force from 1st October, 2005. Shri H.M. Raturi also submitted that the petitioners were required to fill up the form, which they filled and contribution fund is regularly being deducted from their salary. Shri H.M. Raturi, Addl. Chief Standing Counsel also argued that it is admitted case of the petitioners that they joined their services after 1st of October 2005 and in view of this fact the new scheme is applicable to the petitioners and petitions deserve to be dismissed. 9. Shri H.M. Raturi, Addl. Chief Standing Counsel also argued that it is admitted case of the petitioners that they joined their services after 1st of October 2005 and in view of this fact the new scheme is applicable to the petitioners and petitions deserve to be dismissed. 9. The Court has to examine whether the petitioners are covered by the notification dated 25th October, 2005 or not. The notification clearly provides that new scheme would apply to new entrants of the service of the State. In the present case, the petitioners were recruited in pursuance to the advertisement issued in the month of September 2005 and appointment orders were issued on 29th September, 2005. The date when notification was issued i.e. 25th October, 2005 the petitioners were also in service. Thus, they cannot said to be new entrants of the service of the State Government. When order of appointment was issued on 29.09.2005, the petitioners were not aware about the fact that if they do not join on or before 30.09.2005, they would be deprived of then existing pension scheme and would be covered by another scheme unknown to them to be notified in future. Terms and conditions of the scheme existing at the time of appointment would apply to the petitioners and the scheme notified after the appointment cannot apply. The action of the respondents is not only arbitrary and unreasonable but is also illegal. 10. In view of the above discussion, the writ petitions are allowed. It is held that the petitioners are not covered under the new scheme known as Defined Contribution Pension System. Respondents are directed to give benefit of old scheme known as Defined Benefit Pension Scheme to the petitioners. The respondents are further directed not to deduct the contribution from the salary of the petitioners under the Defined Contribution Pension System and refund the contribution deducted from their salary so far. 11. All applications stand disposed of. 12. Let a certified copy of this order be also placed in the connected writ petition.