JUDGMENT : 1. The present writ petition has been filed against the order dated 23.02.2022 passed by Central Administrative Tribunal, Jodhpur Bench for short “the Tribunal”, whereby the Original Application No.290/00197/2020 preferred by the respondent–applicant was allowed. 2. Briefly, the facts giving rise to the present writ petition are that the respondent–applicant applied for the post of Junior Hindi Translator in the pay scale of Rs.5000-8000 in the petitioner– Department in the month of September, 2003. The respondent-applicant was selected and was issued appointment letter dated 15.11.2003. In pursuance of the letter dated 15.11.2003, she joined on the post of Junior Hindi Translator on 24.11.2003. The appointment of the respondent-applicant was purely on temporary and adhoc basis upto 31.01.2004 against the lien vancancy. The services of the respondent-applicant were extended up to 31.01.2005. Thereafter, in pursuance of the Office Memorandum dated 01.04.2005, an appointment letter was issued in favour of the respondent-applicant, granting continuity on the same post, which was made effective w.e.f. 01.04.2005 (Annexure-7). The appointment letter shows that she would be on probation for a period of two years. The respondent-applicant continued to serve the petitioner-Department on the post of Junior Hindi Translator. 3. The dispute arose with respect to the fact that whether the respondent-applicant is a member of Old Pension Scheme or she will come under the purview of New Pension Scheme, which became effective on 01.04.2004. Since the representations submitted by the respondent-applicant were not favourably decided and she was placed under the New Pension Scheme instead of being covered under Old Pension Scheme, she preferred an Original Application before the Central Administrative Tribunal, Jodhpur Bench. 4. The Tribunal after considering the reply filed and hearing the learned counsel for the parties allowed the Original Application of the respondent-applicant and directed the petitioner-Department to make the respondent-applicant, a Member of the Old Pension Scheme under Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as CCS (Pension) Rules, 1972”) in place of New Pension Scheme along with consequential benefits. Hence, the present writ petition has been filed by the petitioner. 5. Learned counsel for the petitioner submitted that the Tribunal has committed an error while allowing the Original Application of the respondent-applicant, as her substantive appointment is effective w.e.f. 01.04.2005. Hence, the present writ petition has been filed by the petitioner. 5. Learned counsel for the petitioner submitted that the Tribunal has committed an error while allowing the Original Application of the respondent-applicant, as her substantive appointment is effective w.e.f. 01.04.2005. Since there was no vacancy in the petitioner-Department before 31.12.2003, therefore, for all intents and purposes, her appointment to the post of Junior Hindi Translator is after 01.04.2004 and therefore, as per the office memorandum dated 17.02.2020, the respondent-applicant will be required to be placed under the New Pension Scheme and the Old Pension Scheme will not be applicable in the case of the respondent-applicant. 6. Learned counsel further submitted that as per the office memorandum dated 17.02.2020, the condition for grant of Old Pension Scheme is that in all cases where the results for recruitment were declared before 01.01.2004 against the vacancies occurring on or before 31.12.2003, the candidates declared successful in recruitment shall be eligible for coverage under the CCS (Pension) Rules, 1972. Thus, the respondent-applicant was rightly granted the New Pension Scheme. 7. The learned counsel further submitted that vide order dated 15.11.2003, the respondent-applicant was appointed on purely temporary and adhoc basis against the lien vacancy, which clearly shows that the vacancy in the petitioner-Department was not available and the same occurred in the year 2005 and therefore, the appointment order was issued in favour of the respondent-applicant on 01.04.2005. He further submitted that if the vacancy was available with the petitioner-Department in the first instance, there was no occasion for the petitioner-Department to issue the order dated 15.11.2003 and subsequently the order dated 01.04.2005. The learned counsel further submitted that the Tribunal has committed an error while allowing the Original Application in favour of the respondent-applicant and therefore, prays that the writ petition may be allowed and the Original Application may be dismissed. 8. Per contra, the learned counsel for the respondent-applicant, while supporting the judgment of the Tribunal, vehemently submitted that the vacancy was in existence with the petitioner-Department prior to 31.12.2003 and the respondent-applicant was appointed though on temporary and adhoc basis but her services were never discontinued till the issuance of the order dated 01.04.2005 (Annexure 7). 8. Per contra, the learned counsel for the respondent-applicant, while supporting the judgment of the Tribunal, vehemently submitted that the vacancy was in existence with the petitioner-Department prior to 31.12.2003 and the respondent-applicant was appointed though on temporary and adhoc basis but her services were never discontinued till the issuance of the order dated 01.04.2005 (Annexure 7). The learned counsel further submitted that for all intents and purposes, the respondent-applicant was appointed in pursuance of the vacancy being available in the petitioner-Department and therefore, the benefit of Old Pension Scheme should have been extended to the respondent-applicant. 9. The learned counsel further submitted that since the respondent-applicant was appointed against the lien vacancy and the person who was holding the lien, never returned back to the Department, therefore, the vacancy was there right from the first appointment of the respondent-applicant on 15.11.2003 and thus, the Old Pension Scheme was very much applicable on the respondent-applicant. 10. To buttress his contentions, the learned counsel has relied upon the judgment of the Delhi High Court in the case of Pawan Kumar and Ors. Vs. Shiv Ram Yadav and Ors., reported in 2023 SCC Online Del 112. 11. Learned counsel for the respondent-applicant submitted that no error has been committed by the Tribunal while allowing the Original Application and, therefore, prayed that the present writ petition may be dismissed. 12. We have considered the submission made at the Bar and gone through the relevant record of the case including the impugned order passed by the Tribunal on 23.02.2022. 13. The appointment of the respondent-applicant vide order dated 15.11.2003 clearly stipulates that “the appointment is purely on temporary and adhoc basis up to 30.01.2004 against the lien vacancy. This appointment will stand terminated on or before 30.01.2004 in case the person holding lien join back to his/her cadre/post. If the person holding lien resign from the post or lien period is over/terminated, the work performed during the period of appointment up to 30.01.2004 will be reviewed and considered for continuation of appointment by the competent authority”. This clearly indicates that since there was no clear vacancy, the respondent-applicant was appointed on temporary basis. This fact is further fortified by issuance of the order dated 01.04.2005 in favour of the respondent-applicant, whereby she was appointed to the post of Junior Hindi Translator on a clear vacancy being available with the petitioner-Department. 14. This clearly indicates that since there was no clear vacancy, the respondent-applicant was appointed on temporary basis. This fact is further fortified by issuance of the order dated 01.04.2005 in favour of the respondent-applicant, whereby she was appointed to the post of Junior Hindi Translator on a clear vacancy being available with the petitioner-Department. 14. This Court is further of the view that if the appointment of the respondent-applicant was on substantive basis on a clear vacancy vide order dated 15.11.2003, there was no occasion for the petitioner-Department to issue a fresh order of appointment on substantive basis on 01.04.2005 (Annexure 7). It is clear that the person who was holding the lien in the Department on the post of Junior Hindi Translator, was discharged from his lien/terminated his lien in the year 2005 and the vacancy being available in the petitioner-Department in the year 2005, the appointment order dated 01.04.2005 (Annexure 7) in favour of the respondent-applicant was issued. The Office Memorandum No.57/04/2019-P&PW(B) dated 17.02.2020 issued by the Government of India, Department of Pension and PW, very clearly stipulates that in all cases where the results for recruitment were declared before 01.01.2004 against the vacancies occurring on or before 31.12.2003, the candidates declared successful for recruitment shall be eligible for coverage under the CCS (Pension) Rules, 1972. 15. In view of the facts delineated above, it is clear that the petitioner-Department was not having a vacancy available before 31.12.2003 and therefore, the respondent-applicant is not eligible for grant of Old Pension Scheme. 16. The argument of the learned counsel for the respondent that the services of the respondent-applicant were never discontinued after appointment on 15.11.2003, cannot be a ground to put the respondent-applicant in purview of the Old Pension Scheme on the ground that continuation on a post is having a different connotation and she might be eligible for other services benefits but for grant of Old Pension Scheme, the provisions enshrined in the Office Memorandum dated 17.02.2020 are required to be adhered to. Since the appointment of the respondent-applicant on 15.11.2003 was against the lien vacancy, clearly shows that there was no vacancy available, therefore, the conditions of the Office Memorandum dated 17.02.2020 are not being fulfilled in the present case and therefore, the respondent-applicant will not be eligible to get the Old Pension Scheme. Since the appointment of the respondent-applicant on 15.11.2003 was against the lien vacancy, clearly shows that there was no vacancy available, therefore, the conditions of the Office Memorandum dated 17.02.2020 are not being fulfilled in the present case and therefore, the respondent-applicant will not be eligible to get the Old Pension Scheme. The continuation of the service of the respondent-applicant since 15.11.2003 may grant her other service benefits but for getting her case considered under the Old Pension Scheme, her case has to come within the purview of the Office Memorandum dated 17.02.2020. Since no clear vacancy was available with the petitioner-Department on or before 31.12.2003, she is not entitled for getting the Old Pension Scheme. 17. The judgment relied upon by the learned counsel for the respondent-applicant in the present set of facts has no application. 18. In view of the discussion made above, the writ petition merits acceptance, the same is allowed. The judgment dated 23.02.2022 passed by the Central Administrative Tribunal, Jodhpur Bench is quashed and set aside.