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2020 DIGILAW 422 (ALL)

Ravi Raj v. State of U. P.

2020-02-07

YASHWANT VARMA

body2020
JUDGMENT : 1. Heard learned counsel for the petitioners and Sri Vishal Tandon learned Standing Counsel for the State respondents. 2. The petition has been preferred principally seeking the following reliefs: - “a writ order or direction in the nature of certiorari quashing the notice dated 20.04.11 issued by the Additional District Magistrate (Finance & Revenue) Jyotiba Phulenagar (Annexure 14 to the writ petition). A writ order or direction of a suitable nature restraining any action on the basis of the impugned notice. A writ, order or direction of a suitable nature commanding the respondents to treat the petitioners as covered by the Old Pension Scheme applicable prior to 01.04.05 and to extend all benefit thereof to the petitioners.” 2. The principal question which falls for determination is whether the petitioners who were initially selected in 2001 and on account of ensuing litigation came to be appointed only in October 2006 would be entitled to the benefits of the Old Pension Scheme which held the field till 01 April 2005. Undisputedly on 01 April 2005 a New Pension Scheme was promulgated and according to the petitioners since the provisions made in the erstwhile Scheme were more beneficial, they would be entitled to claim coverage under that Scheme notwithstanding the fact that they ultimately came to be appointed only in 2006. For the purposes of answering the question that is raised, the following skeletal facts may be noticed. 3. In August 2001 the Government of U.P. initiated a selection process for appointment of persons on Group-C posts in different Departments of the State. The petitioners applied and participated in that recruitment exercise. They are also stated to have cleared the typing test and declared as qualified. On 24 December 2001 the District Magistrate cancelled the select list and a decision was taken to hold fresh tests. Aggrieved by that decision various writ petitions came to be preferred before this Court including one filed by Sevandra Singh And Others v. State of U. P. And Others, Civil Misc. Writ Petition No. 21069 of 2003. The said petition along with connected matters ultimately came to be decided on 04 September 2003 in the following terms. “For the aforesaid reason, the writ petition are allowed, the order dated 24.12.2001 of District Magistrate concealing the selections and for holding a fresh type test can not be sustained and is set aside. Writ Petition No. 21069 of 2003. The said petition along with connected matters ultimately came to be decided on 04 September 2003 in the following terms. “For the aforesaid reason, the writ petition are allowed, the order dated 24.12.2001 of District Magistrate concealing the selections and for holding a fresh type test can not be sustained and is set aside. The respondents are directed to give appointments to the selected candidates, from but of the select list in pursuance of type test held on 23.11.2001 and 7.12.2001. The test held on 2.5.2003 is declared to be illegal and quashed. All the selectees as aforesaid including petitioners shall be given appointments within a period of one month. There shall be no order as to costs.” 4. As is evident from the operative directions, the order of the District Magistrate was set aside and a further mandamus issued commanding the respondents to give appointments to selected candidates who formed part of the lists which had been prepared pursuant to the tests held on 03 November 2001 and 07 December 2001. The petitioners admittedly were included in those lists. The judgment of the learned Judge was subjected to an appeal at the behest of some of the candidates who had qualified the subsequent test that had been held on 02 May 2003. One of those Special Appeals was numbered as Special Appeal No. 967 of 2003. On 29 September 2003 while entertaining the appeal, the Division Bench provided that the judgment of the learned Judge impugned therein would remain stayed for a period of three months. When the Appeal was taken up again on 27 January 2004 the Division Bench extended the original interim order for a period of one month with liberty to parties to apply for extension, vacation, modification and/or variation of that order. The aforesaid Appeal remained pending on the board of this Court but the interim order, which was to operate only for a period of 1 month from 27 January 2004 was not extended thereafter. 5. The aforesaid Appeal remained pending on the board of this Court but the interim order, which was to operate only for a period of 1 month from 27 January 2004 was not extended thereafter. 5. On 25 May 2016 the Appeal and other connected matters were again taken up for consideration by a Division Bench when the following order came to be passed: - “Three appeals are connected with each other, namely, the present appeal, Special Appeal No. 1641 of 2009 and Special Appeal (Def.) No. 983 of 2004 that has been printed in today's cause list of our determination. The other two appeals have not been printed in the cause list, namely, Special Appeal No. 967 of 2003 and Special Appeal No. 1641 of 2009. It is therefore, appropriate that all the three appeals are shown in the cause list correctly alongwith their complete particulars as well as the names of the respective counsel appearing in all the three appeals. It is also relevant to record that in this appeal no. 967 of 2005, an interim order was passed on 29th September, 2003 that is recorded on the memo of the appeal and the order-sheet indicates the extension of the interim order upto 27th January, 2004. The order-sheet thereafter does not indicate any order except the matter being listed and being passed over on one ground or the other. Special appeal no. 967 of 2003 was after five years listed in 2015 and has now been placed before us without its particulars having been mentioned in cause list alongwith the other appeal. In this background, learned Standing Counsel who is present for the State in Special Appeal (Def.) No. 983 of 2004 and Special Appeal No. 1641 of 2009 shall collect all appropriate information from the District Magistrate, Jyotiba Phule Nagar about the status of the employment of the candidates in whose favour the learned Single Judge has delivered the judgment dated 4.9.2003 and file an appropriate affidavit in that regard immediately upon reopening of the High Court in the 1st week of July, 2016. List this case on 4th July, 2016 with all the connected appeals alongwith their correct particulars as well as names of the respective counsel appearing in all the three appeals ” 6. The Appeal ultimately came to be dismissed for want of prosecution on 30 January 2017. List this case on 4th July, 2016 with all the connected appeals alongwith their correct particulars as well as names of the respective counsel appearing in all the three appeals ” 6. The Appeal ultimately came to be dismissed for want of prosecution on 30 January 2017. It would not be out of place to note here that the State had also preferred a Special Appeal(Special Appeal (Def.) 983 of 2004) against the judgment of 04 September 2003 albeit with delay. The delay in the preferment of that appeal was never condoned and the Special Appeal remained defective and pending on the board of the Court. 7. In the meanwhile and since the original judgment was not being implemented, the petitioners here instituted proceedings in contempt. It was upon notices being issued on the contempt petition that they were ultimately granted letters of appointment. By the time that the letters of appointment came to be issued in favour of the petitioners in October 2006, the New Pension Scheme had come into force with effect from 01 April 2005. It is in that context that when the petitioners were required to exercise their options and complete documentation to be governed by the New Pension Scheme that the instant writ petition came to be preferred. 8. Learned counsel for the petitioners has contended that the petitioners had been duly selected in 2001 itself. It was submitted that the final judgment rendered inter partes on 4 September 2003 was never implemented by the State causing grave detriment to the petitioners. It was submitted that the interim orders which operated on the Special Appeal preferred by certain subsequently selected individuals also did not operate after February 2004 and consequently it must be held that there was no impediment operating upon the State from implementing the judgment of the learned Judge rendered on 04 September 2003. It was submitted that the petitioners cannot be placed in a disadvantageous position on account of the inaction and inexplicable delay on the part of the State to implement the judgment rendered inter partes. The sheet anchor of the submissions addressed rests upon a judgment rendered by a learned Judge of the Court in the matter of Mahesh Narayan And Others v. State of U.P. And Others [Writ A No. 55606 of 2008 decided on 19 December 2019]. The sheet anchor of the submissions addressed rests upon a judgment rendered by a learned Judge of the Court in the matter of Mahesh Narayan And Others v. State of U.P. And Others [Writ A No. 55606 of 2008 decided on 19 December 2019]. According to the learned counsel Mahesh Narayan is a binding authority on the proposition that where the delay is caused by the State, the selectees who have merely come to be appointed post 01 April 2005 cannot be denied the benefits of the Old Pension Scheme. 9. Learned counsel then refers to the pleadings taken in paragraph-25 and 26 of the writ petition to submit that certain persons who had scored marks lower than the petitioners were in fact appointed prior to the New Pension Scheme coming into force and thus the petitioners have been clearly discriminated against. It was contended that the disclosures made in paragraph-25 and 26 of the writ petition have not been denied by the State respondents. The Court however notes that the petitioners never challenged the appointment of candidates who are alluded to in the writ petition at any stage. It is also not disputed that they came to be appointed prior to 1 April 2005. In that view of the matter, the Court finds no justification to either countenance or deal with this issue. 10. Sri Tandon learned Standing Counsel on the other hand submits that the orders of appointment clearly provided that they would come into effect from the date when the petitioners join their respective posts. He submits that once the petitioners had accepted this stipulation in the appointment order without demur or protest, it was not open for them to thereafter and belatedly seek to claim benefits of the Old Pension Scheme. Sri Tandon in this connection places reliance upon the judgment rendered by a Division Bench of the Court in Union of India Through Secretary Ministry of Defence and Others v. Roop Chandra And Others, Writ A No. 58724 of 2011 decided on 11 December 2019 where dealing with an identical controversy the Division Bench observed thus: - “5. Once applicant-respondent have not challenged their appointment from particular date, applicant-respondent cannot subsequently claim that their appointment be treated prior to date of appointment as same will enable them benefit of old pension scheme. … 7. In our view appointment begins with the issue of appointment letters. Once applicant-respondent have not challenged their appointment from particular date, applicant-respondent cannot subsequently claim that their appointment be treated prior to date of appointment as same will enable them benefit of old pension scheme. … 7. In our view appointment begins with the issue of appointment letters. terms of appointment are governed by appointment letter. Once appointment letter so issued to applicant respondent was accepted without any protest, applicant respondents could not have turned around and claim appointment prior to the date mentioned in appointment letters. Tribunal erred in granting the relief prayed for. Both the writ petitions are consequently allowed. Impugned judgments and orders dated 20.5.2011 and 27.4.2012, passed by Tribunal, are set aside.” 11. Sri Tandon learned Standing Counsel then drew the attention of the Court to yet another judgment rendered in Ram Nakul v. State of U.P. And Others, Writ A No. 15392 of 2012 decided on 03 September 2019 wherein dealing with a similar question, a learned Judge held as follows: - “6. I have considered the submissions made on behalf of the rival parties and perused the record. It would be relevant to consider the object of the New Pension Scheme which is specificily mentioned in the notification dated 28.03.2015 issued by the State Government which states as follows; "State Government on 28.03.2005 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. 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 o at 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. 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 to 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." 7. From the above, it is clear that the New Pension Scheme was enforced w.e.f. 01.04.2005 and it would mandatorily made applicable to all the new recruits who join the services after 01.04.2005 with only one exception that the candidates whose service would be less than 10 years on 01.04.2005 an option had been given to them for the New Pension Scheme in place of the existing Pension Scheme. … 9. In the present matter it is undisputed that petitioner joined the service on 19.04.2005, after the New Pension Scheme came into force i.e. on 01.04.2005. For the purpose of granting any benefit to the employee of the State the relevant date is only the date of actual joining as at the time of joining of service the selected candidate has accepted the terms and conditions of the appointment letter. Learned counsel for the petitioner is not able to substantiate his argument from the record that the petitioner was intentionally denied by the respondents to join service before 01.04.2005.” 12. It becomes relevant to note that the decision in Ram Nakul principally follows the judgment rendered by a learned Judge of the Court sitting at Lucknow in Satyesh Kumar Mishra And Others v. State of U.P. And Others, 2016 (6) ADJ 808 {LB} where while dealing with the question of applicability of the Old and New Pension Schemes and upon noticing the provisions made in the U.P. Retirement Benefits Rules, 1961(1961 Rules) in that respect it was held as follows: - “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. 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. 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 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.” 13. Sri Tandon then submitted that in 2010 itself the petitioners had raised a contention that their seniority must be counted not from the date of their actual appointment but from the time when they were originally selected or at least when their claim came to be upheld in Sevandra Singh. Sri Tandon draws the attention of the Court to the order passed by a learned Judge on Rajiv Singh And Others v. State of U.P. And Others, Writ-A No. 18297 of 2010 decided on 06 April 2010 when that claim came to be rejected in the following terms: - “Heard learned counsel for the petitioners and learned Standing Counsel. The relief sought in the present writ petition is that the judgment which was passed in 2003 in favour of the petitioners in Writ Petition No.18789 of 2003 may be complied with in true spirit. Petitioners were considered and appointed in pursuance of the judgment passed by this Court in 2006. The claim of the petitioners is that as the judgment in favour of the petitioners was of 2003, therefore, they are entitled to get the seniority and other financial benefits from that date in spite of the fact that they have been given appointment in 2006. In my opinion, it is not permissible in law. A persons who was not in service on a particular day, cannot be treated in service and seniority cannot be accorded to him.” 14. A Division Bench affirming that decision in Special Appeal observed thus:- “We have gone through the order impugned and found that the court clearly held that the appointments were given in 2006. Therefore, a person who was not in service on a particular date, cannot be treated in service and seniority cannot be accorded to him. The petitioner has taken a plea that two persons were given appointments pursuant to the direction of the writ court in 2003 but the petitioner was excluded. ….... In the instant case appointment was given only in 2006. If there is any delay on the part of the State between 2003 and 2006, it was open to proceed before the court of contempt. Why the petitioner has invoked the jurisdiction of this Court a second time for giving an interpretation with regard to seniority by filing the writ petition is not known. If there is any delay on the part of the State between 2003 and 2006, it was open to proceed before the court of contempt. Why the petitioner has invoked the jurisdiction of this Court a second time for giving an interpretation with regard to seniority by filing the writ petition is not known. The learned Single Judge has rightly held that since the vacancy was not available earlier to 2006, how the seniority can be given prior thereto. Hence we do not find any infirmity in the order itself. ” 15. Sri Tandon learned Standing Counsel seeks to draw sustenance from the findings as returned in that round of litigation to contend that it was duly noted that the petitioners here could not claim any retrospective conferral of benefits commencing from a period even before they had entered service. In his submission the same analogy must also apply when it comes to their claim for coverage under the Old Pension Scheme. 16. Having noticed the rival submissions, the Court firstly takes note of the judgment in Satyesh Kumar Mishra where the learned Judge noticed the seminal amendments that came to be introduced pursuant to the adoption of the New Pension Scheme. The learned Judge in Satyesh Kumar Mishra taking note of the underlying policy infusing the New Pension Scheme and as embodied in the Government Order of 28 March 2005, took note of significant provisions made by way of amendment in the 1961 Rules as well as the General Provident Fund (U.P.) Rules 1985. It was noted that the 1961 Rules as amended in unequivocal terms provided that they would not apply to employees entering service on or after 01 April 2005 irrespective of whether their engagement in relation to the affairs of the State was on a pensionable or non-pensionable establishment. The learned Judge in light of those amendments proceeded to observe that once a policy decision had been taken to enforce a New Pension Scheme, entrants into service after the dates specified thereunder could not claim benefits of the erstwhile Scheme. It was noted that the statutory regime as introduced did not envisage an option being exercised by entrants. The learned Judge in light of those amendments proceeded to observe that once a policy decision had been taken to enforce a New Pension Scheme, entrants into service after the dates specified thereunder could not claim benefits of the erstwhile Scheme. It was noted that the statutory regime as introduced did not envisage an option being exercised by entrants. The learned Judge then also took note of the meaning liable to be ascribed to the expressions “Recruitment”, “Advertisement”, Selection” and “Appointment” to hold that once incumbents had accepted the terms and conditions specified in the appointment, they were bound by the same and could not seek to alter those terms at a subsequent stage. 17. In Bharat Yadav v. State of U.P. And 3 Others, Writ-A No. 16838 of 2019 decided on 23 October 2019 a learned Judge of the Court again noticing the significant provisions made in Rule 2(3) of the 1961 Rules, the validity of which as was noted in that decision as having been upheld arrived at the same conclusion. The learned Judge while dealing with an identical question held: - “So far as payment of pension under the old pension scheme is concerned, the same is regulated by the provisions of Rules of 1961. An amendment in the Rules of 1961 was introduced in the year 2005 as per which anyone who joins services of the State after 1.4.2005 would not be entitled to any pension under the Rules of 1961. Rule 2(3) of the Rules of 1961, as amended, reads as under: - "2(3) These Rules shall not apply to employees entering services and posts on or after April 1, 2005 in connection with the affairs of the State, borne on pensionable establishment, whether temporary or permanent." The validity of the aforesaid rules were questioned in series of litigations instituted before this Court and a Division Bench of this Court in State of U.P. and others vs. Dukh Haran Singh reported in 2010 (2) AWC 1882 (All) has been pleased to affirm the validity of the amendment incorporated in the Rules of 1961. The matter has travelled upto the Apex court and the view taken by the Division Bench of this Court has been affirmed. The matter has travelled upto the Apex court and the view taken by the Division Bench of this Court has been affirmed. In that view of the matter, anyone who joins in the service of the State of U.P. after 1.4.2005 would not be entitled to benefit of old pension scheme under the Rules of 1961. Since the petitioner's appointment is after the cut-off date i.e. 1.4.2005 and he never questioned his appointment offered on 27.12.2005, it would not be open for the petitioner to contend now that the benefit of services in the employment of State ought to be granted from a date prior to 1.4.2005. The contention in that regard, based upon the observations of the Division Bench judgment of the Uttrakhand High Court, is not liable to be accepted in view of the fact that Division Bench of this Court has already taken a different view and such view has otherwise been affirmed by the Apex Court. This Court, moreover, finds that the Rules of 1961 consequent upon its amendment, referred to above, did not fall for consideration before the Uttarkhand High Court. In view of the fact that distinct set of rules exist in respect of employees of the State of Uttar Pradesh, the judgment of the Uttrakhand High court would not be of any avail to petitioner's cause. The plea that the pension Rules as it stood when the vacancy was advertised in 2001 be made applicable upon the petitioner, therefore, is rejected. 18. Bharat Yadav thus and as is manifest treads the same line as the decisions rendered in Satyesh Kumar Mishra and Ram Nakul. 19. This Court is of the considered view that the key to answer the question posed lies in the language employed by Section 2(3) of the 1961 Rules. The decisions noticed above in light of the plain language employed in Rule 2(3) hold that it is only the date on which the incumbent joins service which is relevant for the purposes of adjudging his eligibility to the benefits of the Old or the New Pension Scheme. They also lay stress on the issue of joining and hold that it is that facet which would be determinative. It becomes pertinent to note that Satyesh Kumar Mishra, Ram Nakul and Bharat Yadav were all rendered prior to the judgment in Mahesh Narayan. They also lay stress on the issue of joining and hold that it is that facet which would be determinative. It becomes pertinent to note that Satyesh Kumar Mishra, Ram Nakul and Bharat Yadav were all rendered prior to the judgment in Mahesh Narayan. However of these three decisions only Satyesh Kumar Mishra has been noted with the learned Judge observing that it was liable to be viewed as having been rendered per incuriam. Since Mahesh Narayan clearly proceeds to lay down a principle, which runs contrary to that enunciated in the three previous decisions rendered on the subject, it would be apposite to analyze that decision in some detail. 20. In Mahesh Narayan the learned Judge placing reliance upon a decision rendered by a Division Bench of the Court in Firangi Prasad v. State of U.P. And Others, (2011) 2 UPLBEC 987 has proceeded to hold that that where the delay is on account of inaction on the part of the State, the selectees and individuals cannot be deprived of rights which may have accrued or crystallized. In Mahesh Narain the learned Judge held that since the decision in Firangi Prasad had not been noticed in Satyesh Kumar Mishra that decision was liable to be viewed as per incuriam. Mahesh Narayan again was a decision which dealt with a selection process which had been initiated and ultimately came to be quagmired in litigation leading to delay in issuance of appointment orders. The learned Judge placing reliance on Firangi Prasad held that in such a situation inaction on the part of the State cannot deprive a candidate of his legitimate right to claim benefits that may have existed when selection commenced. It was noted that although the selection process had been initiated in 2001, it was conferred finality only once legal challenges failed in 2005. It also took note of the fact that the final select list was ultimately published on 12 March 2006 where after appointment letters were issued. In the aforesaid factual backdrop and following Firangi Prasad the learned Judge held that the candidates could not be denied benefits on account of the delay that occurred in the issuance of the appointment orders and consequently they must be held to be eligible to the benefits as provided under the Pension Scheme which prevailed prior to 01 April 2005. In the aforesaid factual backdrop and following Firangi Prasad the learned Judge held that the candidates could not be denied benefits on account of the delay that occurred in the issuance of the appointment orders and consequently they must be held to be eligible to the benefits as provided under the Pension Scheme which prevailed prior to 01 April 2005. While holding thus, the learned Judge also placed reliance upon the decision rendered by the Uttarakhand High Court in Ashutosh Joshi And Others v. State of Uttarakhand And others, Writ Petition (S/S) No. 1170 of 2010 decided on 26 June 2014 as well as the Delhi High Court in Inspector Rajendra Singh And Others v. Union of India and Others, W.P.(C) 2810/2016 decided on 27 March 2017. It would be pertinent to extract the ultimate conclusions recorded by the Learned Judge in Mahesh Narain which read thus: From the perusal of judgments of Satyesh Kumar Mishra (Supra) and Firangi Prasad (Supra), there is no doubt on the point that similar dispute was before this Court in the matter of Satyesh Kumar Mishra (Supra), which was dismissed by this Court against which Special Appeal Defective No. 480 of 2016 is pending. It is also not disputed that legal issue involved in the matter of Satyesh Kumar Mishra (Supra) was also before Division Bench of this Court in the matter of Firangi Prasad (Supra) where the Court has clearly held that on the fault of appointing authority in issuing appointment letter, petitioners cannot be put any type of disadvantage. It appears that at the time of deciding the matter of Satyesh Kumar Mishra (Supra), judgment of Firangi Prasad (Supra) was not placed before this Court, therefore, without considering the same, decision was given in the matter of Satyesh Kumar Mishra (Supra). Under such facts and circumstances, judgment of Satyesh Kumar Mishra (Supra) is per incuriam and cannot be treated as precedent in the present case and will not come in the rescue of respondents. The controversy and question of law involved in the present case is squarely covered with the judgment of Firangi Prasad (Supra) as well as other judgments relied upon by learned counsel for the petitioners and Courts have taken consistent view that respondents cannot by their inaction deprive a candidate to his legitimate right. The controversy and question of law involved in the present case is squarely covered with the judgment of Firangi Prasad (Supra) as well as other judgments relied upon by learned counsel for the petitioners and Courts have taken consistent view that respondents cannot by their inaction deprive a candidate to his legitimate right. So far as facts of the case are concerned, there is no dispute on the point that pursuant to advertisement No. A-3/E- 1/2000, advertisement was issued in news paper on 22.12.2000 and as per order of this Court dated 29.12.2001 passed in Special Appeal No. 485 (S/B) of 2001 (supra), there was no legal impediment in completion of recruitment process, but due to inaction on the part of respondents, it was completed only after dismissal of writ petition on 05.07.2005. Final selected list of selected candidate was published in daily newspaper 'Dainik Jagran' dated 12.03.2006 and thereafter appointment letters were issued. It is also not disputed that in between again in subsequent advertisement No. A-3/E-1/2002, recruitment was completed and candidates had been granted appointment prior to 01.04.2005 and getting the benefit of 'Old Pension Scheme'. Therefore, considering the facts and circumstances of the case and legal position discussed herein above, writ petition is partly allowed and petitioners are excluded from the effect and operation of Notification dated 28.03.2005 and 07.04.2005 as it is in violation of Article 14 of Constitution of India as well as law laid down by the Courts.” 21. Having conferred thoughtful consideration on the various decisions that have come to be rendered on the subject, the Court firstly notes that Mahesh Narayan fails to notice Ram Nakul and Bharat Yadav. Both these decisions directly dealt with the issue of applicability of the Old and New Pension Schemes depending upon the date of entry into service of a particular candidate. These decisions clearly bound the learned Judge while proceeding to decide Mahesh Narayan. However they do not appear to have been brought to the attention of the Court. Both Ram Nakul and Bharat Yadav fundamentally rest and pivot on the statutory amendments as introduced in 2005 in the 1961 Rules. As noted above, Rule 2(3) introduces and constructs a specific injunction in respect of its applicability to employees “entering” services or posts on or after April 01, 2005. Both Ram Nakul and Bharat Yadav fundamentally rest and pivot on the statutory amendments as introduced in 2005 in the 1961 Rules. As noted above, Rule 2(3) introduces and constructs a specific injunction in respect of its applicability to employees “entering” services or posts on or after April 01, 2005. Guided by the plain language as used in that Rule, it is manifest that it does not connect the applicability of the Rules to either a selection process commenced or pending or for that matter to any event prior to actual entry into service. In the considered view of this Court the expression “entering services…”cannot be equated to the selection or empanelment of an incumbent to government service. It is manifest that the applicability of the 1961 Rules is made dependent upon an incumbent actually being recognised as having become a member of the service on or before 1 April 2005. Viewed on its plain language it must be held, as this Court does, that entry into service alone would be determinative and since that event would occur only upon the issuance of an actual appointment letter and consequential joining it is these twin facets alone which would govern the issue of applicability of the Old or New Pension Scheme. Unless an incumbent is formally inducted into service, he cannot be viewed as having become a member thereof or a holder of a post. The expression “entering services or posts...”cannot be understood as referring to or hinging upon something inchoate or nebulous. Till such time as the incumbent accepts the offer of appointment and joins on the post, his position remains that of someone waiting at the threshold. It is only once he accepts the appointment, the terms and conditions stipulated therein and joins that he is ordained in service. In view of the aforesaid exposition the Court comes to conclude that the expression “entering” cannot be accorded any other interpretation. 22. That then takes the Court to consider whether Satyesh Kumar Mishracould be said to have been rendered perincuriam. In view of the aforesaid exposition the Court comes to conclude that the expression “entering” cannot be accorded any other interpretation. 22. That then takes the Court to consider whether Satyesh Kumar Mishracould be said to have been rendered perincuriam. While Mahesh Narayan does so observe on the premise that it fails to notice Firangi Prasad, that would really depend upon whether the Court can on a holistic and careful examination come to the irresistible conclusion that the factual backdrop in which that decision came to be entered and the issue which essentially fell for determination were identical or at least analogous. It must at the outset be noted that Firangi Prasad was not a decision rendered in the backdrop of the 1961 Rules at all. That decision was dealing with a right of an individual to seek regularisation under the provisions of Section 33C of the U.P. Secondary Education Service Selection Board Act, 1982(1982 Act). The Division Bench in Firangi Prasad observed: 15. The second contention needs to be examined in the light of the facts that have emerged from the record, namely that the appellant for no fault on his part was kept out of the Institution by the inaction of the Management in spite of the District Inspector of Schools having dispatched the selection order on 18.01.1993. From the facts on record, it is evident that the Manager of the Institution had to perform the ministerial act of issuing a letter of appointment to the appellant in terms of the selection order dated 18.01.1993. The Management admittedly complied with it after much persuasion on 25.08.1993, for which the appellant is nowhere at fault. On the contrary, the appellant had been continuously approaching the Management time and again expressing his willingness to join the Institution. 16. In these circumstances, teachers like the appellant fall within an altogether different class of candidates, who have been wrongfully prevented by the inaction of the Management in joining the Institution. The Management has to perform only a ministerial act and by its inaction, it cannot defeat the legitimate claim of a teacher like appellant. …..... 19. The respondents cannot by their inaction, therefore, deprive a candidate of his or her legitimate right to claim continuance in service. The Management has to perform only a ministerial act and by its inaction, it cannot defeat the legitimate claim of a teacher like appellant. …..... 19. The respondents cannot by their inaction, therefore, deprive a candidate of his or her legitimate right to claim continuance in service. It is, therefore, clear that there was a deliberate delay on the part of the Management in issuing the letter of appointment in the present case and accordingly, the right of the appellant to claim continuance under the selection order dated 18.01.1993 cannot be denied. The appellant will, therefore, be entitled to the benefits flowing out of the order dated 18.01.1993 and in such a situation, the letter of appointment will relate back prior to the cut-off date i.e. 06.08.1993. 23. Section 33C, it may be noted, does not engraft any threshold precondition which may be recognised as controlling access to the benefits enshrined in that provision except to the extent where it prescribes the class of teachers who would be entitled to be considered for regularisation. Secondly, unlike Rule 2(3) of the 1961 Rules, the provision also does not commence with a negative stipulation couched in imperative terms, which may be recognised as a legislative injunct against extension of its benefits. Rule 2(3) in no uncertain terms restricts its applicability and in unequivocal terms debars incumbents entering service after 1 April 2005 from the benefits of those Rules. The structure of Section 33C, in this sense, is clearly distinct and dissimilar. Thirdly, the statutory scheme underlying the 1982 Act must also be appreciated under which the management is to perform only a ministerial act of issuing an appointment letter upon receiving intimation of selection of the incumbent by the Board. In fact and as is evident from Rule 13 of the U . P. Secondary Education Services Selection Board Rules, 1998, a structured time frame for issuance of an appointment order is put in place coupled with an obligation upon the Management to report compliance. The decision rendered in Firangi Prasad has to consequently be understood and appreciated in light of what has been noted above. To put it differently, the ratio of Firangi Prasad cannot be appreciated without bearing in mind the distinguishable statutory scheme of the 1982 Act and the Rules framed thereunder. 24. The decision rendered in Firangi Prasad has to consequently be understood and appreciated in light of what has been noted above. To put it differently, the ratio of Firangi Prasad cannot be appreciated without bearing in mind the distinguishable statutory scheme of the 1982 Act and the Rules framed thereunder. 24. Similarly the reliance placed by the learned Judge on Naveen Kumar Jha v. Union of India and Others, 2012 SCC Online Delhi 5606 also appears to be inapposite since that too dealt with a selection for Para Military Forces and does not appear to deal with a provision akin to Rule 2(3). 25. However these pivotal and crucial aspects appear to have been ignored in Ma h e s h Na ray a n. The ex facie distinction between Rule 2(3) and Section 33C has clearly not been borne in mind. This perhaps because Rule 2(3) has not even been independently noticed by the learned Judge. The judgment in Firangi Prasad dealing as it did with the right of regularisation as conferred by Section 33C and the observations made in its backdrop cannot consequently be recognised as laying down a proposition on the basis of which Satyesh Kumar Mishra, Ram Nakul and Bharat Yadav may be said to have been incorrectly decided or be per incuriam. 26. The decision in Mahesh Narayan insofar as it seeks to draw sustenance from the judgments rendered by the Uttarakhand and Delhi High Courts also does not commend acceptance in light of the aspect which is noticed by the learned Judge in Bharat Yadav, namely, that in none of the decisions rendered by the two High Courts were provisions parimateriato Rule 2(3) shown to apply. On an overall conspectus of the aforesaid, the Court is of the considered view that insofar as the question that arises in this petition is concerned, it must be answered in light of the provisions made in the 1961 Rules and the decisions rendered in Satyesh Kumar Mishra, Ram Nakul and Bharat Yadav have rightly answered the issue by holding that incumbents appointed after 1 April 2005 cannot be recognised as being eligible to claim benefits of the Old Pension Scheme. 27. The Court additionally notes that the provisions of Rule 2(3) of the 1961 Rules are not assailed. 27. The Court additionally notes that the provisions of Rule 2(3) of the 1961 Rules are not assailed. The judgment therefore must necessarily proceed on the basis of that it is that provision alone which governs and must dictate the answer to the question posited. That Rule, as noted above, clearly refers to entry into service as being the determinative factor. None of the petitioners here are shown to have entered into service prior to 01 April 2005. The mere fact that the process of recruitment was initiated prior thereto can be of no assistance to their cause of being governed by the Old Pension Scheme. 28. The Court also bears in mind the decision of the Division Bench of this Court in Roop Chandra where it was held that a stipulation contained in an appointment order cannot be assailed or questioned after its acceptance. As noticed in the earlier part of this judgment the appointment letter of the petitioners had clearly stipulated that their appointment was to come into force upon their joining. It did not stipulate the appointment coming into effect from some retroactive date. That prescription in the order of appointment was duly accepted without demur or protest. It is not permissible for the petitioners to now and at this point of time to renege from that concession. 29. Insofar as the issue of the interim orders passed on the Special Appeals preferred by certain other selected candidates are concerned, suffice it to note that the State to some extent appears to be justified in submitting that it could not proceed on the assumption that the order of restraint had come to an end or had expired by efflux of time. In any case the justification or otherwise for the delay that occurred in implementation of the judgment of 4 September 2003 is not an issue on which this Court is called upon to rule. As is manifest from the reliefs which are framed, the sole question which this Court is called upon to decide is the entitlement of the petitioners to seek coverage of the Old Pension Scheme. Viewed in that context it really does not fall for this Court to rule on the justifiability or otherwise of the delay which was allegedly caused in the ultimate implementation of the judgment of 04 September 2003. Viewed in that context it really does not fall for this Court to rule on the justifiability or otherwise of the delay which was allegedly caused in the ultimate implementation of the judgment of 04 September 2003. The claim in any case must fall in light of Rule 2(3) of the 1961 Rules. The Court finds no legally justifiable basis to either ignore its unambiguous command or dilute its rigor by virtue of the alleged delay in conferment of appointment to the petitioners for reasons aforenoted. In view of the aforesaid, the challenge to the impugned order fails. 30. The writ petition is dismissed.