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2024 DIGILAW 1277 (ALL)

Lal Bahadur v. Union of India

2024-05-13

J.J.MUNIR

body2024
JUDGMENT : J.J. MUNIR, J. 1. This writ petition has been instituted by the petitioner, a retired Peon of the Bank of Baroda, praying that a mandamus be issued, ordering the respondents to consider the petitioner covered by the Old Pension Scheme and sanction him pension forthwith w.e.f. 01.08.2023. A further direction is sought to the effect that the respondents pay the petitioner regular monthly pension as also arrears worked out with effect from 01.08.2023, along with interest at such rate as this Court may determine, until realization. The petitioner prays that a further direction be issued, ordering the respondents not to treat the petitioner covered by the newly defined Contributory Pension Scheme, which is applicable to the persons appointed subsequent to 01.04.2010. 2. The petitioner's case is that he was a temporary Peon employed with the Govindganj Branch of the Bank of Baroda in District Shahjahanpur, falling under the Bank’s Shahjahanpur Region. This was the petitioner's status with the Bank in the month of November, 1989. He continued to function in the capacity of a temporary Peon till 19.11.1994, when his services were terminated. He raised an industrial dispute, when conciliation proceedings failed. The Central Government, by an order dated 07.01.1997, referred the dispute between the petitioner and his employer to the Central Industrial Tribunal-cum-Labour Court-II, Delhi. The reference was in terms if the action of the Management in terminating the petitioner's services w.e.f. 19.11.1994 was just and legal, and if not, what relief the petitioner was entitled to. The reference was registered on the file of the Central Industrial Tribunal-cum-Labour Court-II, New Delhi as Case No. 08 of 1997. The Presiding Officer, Central Government Industrial Tribunal-cum-Labour Court-II, New Delhi made an award dated 14.06.2005, answering the reference in the petitioner's favour and holding termination of his services illegal. A direction was issued to reinstate the petitioner in service with 50% back wages w.e.f. 19.11.1994. 3. The validity of the award dated 14.06.2005 was challenged by the respondent, Bank of Baroda by instituting Writ-C No. 73449 of 2005 before this Court. In the aforesaid writ petition, an interim stay order was granted on 01.12.2005 in terms that the award was stayed subject to the condition that the Bank would reinstate the petitioner within one month and ensure payment of wages at par with his counterparts. In the aforesaid writ petition, an interim stay order was granted on 01.12.2005 in terms that the award was stayed subject to the condition that the Bank would reinstate the petitioner within one month and ensure payment of wages at par with his counterparts. In compliance with the aforesaid interim order, the petitioner was reinstated in service subject to the outcome of Writ-C No. 73449 of 2005. The petitioner continued to function in terms of the said interim order. As the petitioner says, a Memorandum of Settlement was arrived at between the Management of the Bank of Baroda and its Workmen on 18.03.2008 before the Deputy Chief Labour Commissioner (Central), Mumbai with regard to absorption of Causal/ Temporary Peons/ Sweepers. The settlement that was arrived at was circulated by the General Manager (Human Resource & Marketing), along with a circular letter dated 24.03.2008. The Memorandum of Settlement under the tripartite settlement dated 18.03.2008 conferred right to absorption upon Casual/ Temporary Peon/ Sweepers in accordance with the stipulation carried in the settlement. The absorption that was agreed upon under the tripartite settlement was to be implemented in a phased manner. 4. The first phase comprised such Causal/ Temporary Peons/ Sweepers, who had worked between 01.01.1982 and 31.12.1989 or between 01.01.1990 and 31.12.1990 for 90 days or more and were still working. Absorption for this category of workmen was to be completed on or before 30.06.2008. The second phase of the absorption, that was contemplated, related to Causal/Temporary Peons/ Sweepers, who had worked for 240 days or more over a period of 12 months consecutively between 01.01.1991 and 29.02.1996 and were still working. These absorptions were to be implemented during the financial year 2008-09. The third category of employees, who were to be absorbed in terms of the settlement, comprised Causal/ Temporary Peons/ Sweepers, who had worked for 240 days or more over a period of 12 months consecutively between 01.03.1996 and 28.07.2007 and were still working. This class of employees were to be absorbed during the financial year 2009 5. It is the petitioner's case that in terms of a Memorandum of Settlement, the entire exercise for absorption had to be completed on or before 31.03.2010; not later. This class of employees were to be absorbed during the financial year 2009 5. It is the petitioner's case that in terms of a Memorandum of Settlement, the entire exercise for absorption had to be completed on or before 31.03.2010; not later. It is also the petitioner's case that even though the petitioner was covered by the said settlement, no order of absorption was passed immediately with regard to the petitioner on account of pendency of the writ petition before this Court. The writ petition that the Bank had filed against the Industrial Tribunal-cum-Labour Court's award continued to remain pending and dismissed as not pressed on 17.08.2012. 6. What the petitioner says is that after the writ petition was not pressed, an order dated 09.10.2012 was issued by the respondent Bank, absorbing the petitioner in service as a Peon. He was placed initially on probation for a period of six months. The petitioner has said that the order dated 09.10.2012 refers to an undertaking dated 21.12.2011, “obtained” in pursuance to the communication of the respondent Bank dated 24.10.2011, but a copy of the undertaking was not immediately available with the petitioner. By a subsequent order dated 13.04.2013, the petitioner was confirmed in service. The petitioner discharged his duties with the respondent Bank until attaining the age of superannuation. He retired from service on 31.07.2023. It is the petitioner's case that despite retirement, he was not sanctioned any pension, though he is entitled to it under the Bank of Baroda (Employees) Pension Regulations, 1995. Under the bipartite Settlement dated 27.04.2010 entered into between the Banking Association and the Employees' Organization, the newly defined Contributory Pension Scheme was introduced in the Banks with regard to employees joining service of the Bank on or before 01.04.2010. The newly defined Contributory Pension Scheme was identical to the Contributory Pension Scheme, introduced by the Central Government, with regard to their employees, effective from 01.01.2004. 7. The petitioner says that according to the respondent Bank and their officials, the petitioner is not governed by the Old Pension Scheme, his date of absorption being subsequent to 01.04.2010; he is governed by the newly defined Contributory Pension Scheme. It is on this account that the petitioner has not been sanctioned pension. The petitioner says that this action is discriminatory and violative of Article 14 of the Constitution. It is on this account that the petitioner has not been sanctioned pension. The petitioner says that this action is discriminatory and violative of Article 14 of the Constitution. He is not a new appointee and the entitlement of the petitioner for absorption in regular service has come into effect much prior to 01.04.2010, specifically on 16.03.2008, the date on which the settlement for absorption stood notified. The delay that the respondents did in implementing the settlement, cannot place the petitioner on the wrong side of the cut-off date. 8. A notice of motion was issued on 12.09.2023, after which parties exchanged affidavits. This petition was admitted to hearing on 09.11.2023, which proceeded forthwith. It was adjourned for further hearing to 24.11.2023. On 24.11.2023, hearing concluded and judgment reserved. 9. Heard Mr. Ashok Khare, learned Senior Advocate assisted by Mr. Mohd. Yaseen, learned Counsel for the petitioner and Mr. Ashok Kumar Lal, learned Counsel appearing for respondent Nos. 2 to 6. No one appears on behalf of respondent No. 1, the Union of India. 10. In the counter affidavit put in on behalf of the Bank, represented by respondent Nos.2 to 6, the facts regarding the industrial dispute are admitted as also the Bank approaching this Court against the Industrial Tribunal-cum-Labour Court's award. The petitioner's reinstatement also is not denied and those facts are not very relevant either. What is relevant is the respondents' case that a settlement was arrived at between the Bank of Baroda and its workmen on 18.03.2008, the tripartite settlement. In terms of this settlement, the petitioner's case was not considered for regularization, but left over because the writ petition was pending. Therefore, the petitioner approached the Bank that his case may be considered in terms of the settlement instead of the award impugned by the Bank. The Deputy General Manager (HRM & ADMN) vide letter dated 24.10.2011, addressed to the General Manager, Bank of Baroda, U.P. and Uttarakhand Zone, Lucknow issued guidance with regard to the petitioner's absorption. It is carried in a letter dated 24.10.2011, a copy of which is annexed as Annexure No. CA-1. The letter aforesaid, in its material part, carries the following directions relating to the petitioner: “In respect of Mr. Lal Bahadur following action may be taken: 1. workman will agree and undertake in writing not to claim any back wages or other past benefits. 2. The letter aforesaid, in its material part, carries the following directions relating to the petitioner: “In respect of Mr. Lal Bahadur following action may be taken: 1. workman will agree and undertake in writing not to claim any back wages or other past benefits. 2. his absorption shall be with prospective date after completion of the prescribed formalities. 3. he shall not raise any dispute/claim/litigation against the Bank pertaining to this matter in future. 4. thereafter, a joint consent application shall be filed before the High Court of Allahabad, not to pursue the case further.” 11. Acting on the said letter, an affidavit dared 21.12.2011 was filed by the petitioner before the Deputy General Manager, Bank of Baroda, Regional Office Haldwani. The affidavit dated 21.12.2011, that was filed, reads: 12. It is also pleaded that the petitioner accepted the Contributory Provident Fund Scheme, as he has opted for all his retirement benefits in terms, details of which are mentioned in paragraph No. 20 of the counter affidavit. It is also pleaded that the appointment order issued to the petitioner on 09.10.2012 specifically stipulates, amongst terms and conditions, that these, if acceptable, the petitioner may signify his acceptance in writing. The petitioner accepted the stipulation in the appointment order, which shows that in accordance with Clause 3 of the tripartite settlement dated 18.03.2008, the Bank was appointing him as a Peon in the Subordinate Staff Cadre on the stage of basic pay of Rs.5850/-per month, besides dearness allowance. It is pleaded that this appointment was accepted without demur by the petitioner, who served until his superannuation. The letter of appointment carries a stipulation that the petitioner would be eligible for Defined Contributory Retirement Benefit Scheme, as pleaded in paragraph No. 26 of the counter affidavit. It is also averred that the petitioner accepted all terms and conditions, after which the Bank withdrew the pending writ petition relating to the old industrial dispute in terms of a joint application moved by both parties. 13. In the rejoinder affidavit, it has been emphasized that what cannot be lost sight of is the fact that the petitioner and every employee, who was to be regularized in terms of the tripartite settlement in all its three phases, had to be done on or before 31.03.2010. The petitioner, therefore, had a right to be regularized before the said date and not discriminated against. The petitioner, therefore, had a right to be regularized before the said date and not discriminated against. It is also submitted that by accepting the letter of appointment, the petitioner cannot be deemed to have waived his right to receive pension under the Old Pension Scheme, to which he is otherwise entitled. It is pleaded that the right to receive pension is a fundamental right and there can be no waiver of a fundamental right. 14. Upon hearing learned Counsel for the parties and going through the records, though it does appear that the petitioner might have been overwhelmed into accepting the terms and conditions dictated by the Bank, but the fact remains that he has elected voluntarily to accept the position evidenced by a series of transactions. He was serving the Bank as a Peon, retained dehors the rules, in terms of the award passed by the Industrial Tribunal-cum-Labour Court, New Delhi and the interim orders of this Court made in the writ petition. No doubt, he was entitled to enforce the terms of the tripartite settlement and claim regularization with reference to a date that could not have gone beyond 31.03.2010. But, he never did enforce his claim to that effect. We also think that there was no justification for the respondents not to consider the petitioner's claim for regularization under the tripartite settlement on ground that arising out of an award of the Industrial Tribunal-cum-Labour Court, relating to termination of his temporary service, a writ petition was pending before this Court. 15. The pendency of a writ petition arising out of a different set of facts and cause of action between parties would, in no way, permit the Bank to act in a step-motherly fashion and discriminate against the petitioner in the matter of regularization, in terms of the tripartite settlement. If the respondents did not do that, it was the petitioner's obligation to seek enforcement of his rights in some manner. He had to seek enforcement of his rights under the tripartite settlement, and not sit back in lethargy or inaction until past 31.03.2010. If the respondents did not do that, it was the petitioner's obligation to seek enforcement of his rights in some manner. He had to seek enforcement of his rights under the tripartite settlement, and not sit back in lethargy or inaction until past 31.03.2010. Thereafter too, what the petitioner seems to have done is that he accepted an illegal fiat from the Deputy General Manager (HRM & ADMN) of the Bank of Baroda, who dictated conditions, on the basis of which he could be regularized, in his memo dated 24.10.2011 addressed to the General Manager, Bank of Baroda, U.P. and Uttarakhand Zone. 16. We have no hesitation in observing that the Deputy General Manager was highhanded in his approach in dictating terms to the petitioner carried in his letter dated 24.10.2011. In fact, he had no business to impose any terms at all. He had simply to carry out what was agreed between parties in terms of the tripartite settlement and within the scheduled time. The reference in the letter dated 24.10.2011, issued by the Deputy General Manager (HRM & ADMN), Bank of Baroda, imposing conditions upon the petitioner for his regularization in terms of the tripartite settlement on ground of pendency of a writ petition before this Court, is a very undesirable conduct. The culture of looking down and frowning upon litigation, amongst establishments of the State or Private Corporates, is something which does not augur well for the society. After all, litigation is constitutional and legal means for an employee to seek redressal of his grievances against his employer. An employer, who frowns upon an employee litigating, may, in fact, be committing criminal contempt. 17. All this apart, however, the petitioner's inaction in promptly enforcing his rights, that we have noticed, cannot be ignored. Much contrary to it, it was followed by the positive act of furnishing an affidavit to the Bank dated 21.12.2011, acceding to all terms that they imposed. A careful perusal of the terms indicated in the letter dated 24.10.2011 issued by the Deputy General Manager (HRM & ADMN) and the affidavit would show that the terms there are not very faithfully incorporated in the affidavit. But, that does not matter. What matters is the appointment letter dated 09.10.2012, which the petitioner accepted without demur. A careful perusal of the terms indicated in the letter dated 24.10.2011 issued by the Deputy General Manager (HRM & ADMN) and the affidavit would show that the terms there are not very faithfully incorporated in the affidavit. But, that does not matter. What matters is the appointment letter dated 09.10.2012, which the petitioner accepted without demur. The letter of appointment dated 09.10.2012 grants the petitioner fresh appointment as a Peon in the Subordinate Staff Cadre on the basic pay, placing him on probation for a period of six months. It carries in bold letters the terms of post retiral benefits, to which the petitioner would be entitled upon retirement. These read: “Apart from the gratuity, provident fund permissible as per the rules of the Bank as may be amended from time to time, you will be eligible for Defined Contributory Retirement Benefit Scheme.” 18. The petitioner accepted these conditions with open eyes and joined service in terms of the letter of appointment dated 09.10.2012. He completed his probation and all his service with the Bank from 09.10.2012, in terms of the said letter of appointment, until 31.07.2023. Till the petitioner superannuated, no grievance was ever raised by him during all this period of time about the unfair treatment given to him by the Bank, in not regularizing his services in terms of the tripartite settlement before 31.03.2010. The petitioner also did not protest, as already said, the terms of his post retiral benefits stipulated in the letter of appointment. In the counter affidavit, the respondents have taken a stand in paragraph No. 20, which shows how the petitioner accepted his post retiral benefits immediately upon his retirement on 31.07.2023. Paragraph No. 20 of the counter affidavit reads: “20. That, the contents of paragraph No. 26 of the writ petition are not correct as stated hence denied. It is respectfully submitted that petitioner was retired on 31.07.2023 and was paid his gratuity amount of Rs. 3,29,945/-and was also paid his leave encashment amount amounting to Rs. 2,45,319/-on 01.08.2023 and further on his request 60% of the NPS amount was credited to his account no. 22370100012912 amounting to Rs.4,70,177.39 on 14.08.2023. It is respectfully submitted that petitioner was retired on 31.07.2023 and was paid his gratuity amount of Rs. 3,29,945/-and was also paid his leave encashment amount amounting to Rs. 2,45,319/-on 01.08.2023 and further on his request 60% of the NPS amount was credited to his account no. 22370100012912 amounting to Rs.4,70,177.39 on 14.08.2023. It is respectfully submitted petitioner has opted Pension Fund Manager-SBI Life Insurance Company Ltd., for the annuity of his rest 40% Corpus amount for which the documentation process his (sic) carried out by the PFM and the same will be released shortly.” 19. The fact that the petitioner accepted his post retiral benefits in terms these were offered, particularly funds under the Defined Contributory Retirement Benefit Scheme is beyond cavil. Decisions consistent with that Contributory Pension Scheme were taken by accepting 60% of the funds on 14.08.2023 and for the balance 40%, investment in the Pension Fund Manager-SBI Life Insurance Company Ltd. for an annuity was accepted. These actions show active acceptance on the petitioner's part of the Defined Contributory Retirement Benefit Scheme. After having retired and done all this, the petitioner presented this writ petition, claiming to agitate his rights under the tripartite settlement, entitling him to regularization from an earlier point of time, which if done, would entitle the petitioner to the Old Pension Scheme. The Old Pension Scheme is one mode of post retiral benefits, may be more advantageous to the employee, and the other is the Defined Contributory Retirement Benefit Scheme, that has been enforced in the Bank w.e.f. 01.04.2010. The Defined Contributory Retirement Benefit Scheme has its own kind of model, which does not wipe out retirement funds altogether. Therefore, if an employee, under whatever circumstances, has acted in the manner the petitioner has done, it cannot be said that he has waived his fundamental right to receive pension. It is only that, that he has elected one of the alternative courses. At the same time, while fundamental rights, it is true, cannot be waived, it is not the law that the principle of laches do not operate to defeat at least some of them. A plea of discrimination or arbitrariness has to be raised and enforced within a reasonable time. An unreasonable delay would certainly bring in laches. That is also the case here. The time for the petitioner to have enforced his rights, we have already spoken of elaborately. A plea of discrimination or arbitrariness has to be raised and enforced within a reasonable time. An unreasonable delay would certainly bring in laches. That is also the case here. The time for the petitioner to have enforced his rights, we have already spoken of elaborately. It was all open to the petitioner after the tripartite settlement was notified, but he never acted in time. Instead, he has chosen to bring this petition, highly belated, after his retirement. 20. The very ingenious submission advanced on behalf of the petitioner that he came to know about what were the terms of his post retiral benefits when he actually retired, cannot be accepted, considering the bold terms and conditions about it mentioned in his letter of appointment. The assertion in paragraph No. 23 of the writ petition that the undertaking dated 21.12.2011, referred to in the appointment letter dated 09.10.2012 pursuant to the communication of the respondent Bank dated 24.10.2011, is not immediately available with the petitioner, is really a camouflage for truth, which the petitioner knew all along. He knew what undertaking he had furnished to the Bank in order to secure the letter of appointment dated 09.10.2012. Reliance has been placed on behalf of the petitioner upon the decision of this Court in Bageshwari Prasad Srivastava and others v. State of U.P. and others, 2022 AHC 167978, which too was a case of denial of benefit under the Old Pension Scheme, because the appointment was made after the cut-off date, which was 01.04.2005 in that case. In Bageshwari Prasad Srivastava (supra), it was held: “The above ground cited by the State is nothing but a pretense, in the facts of the present case. While there can be no dispute to the reason, if on true appraisal of facts it were to be concluded that the petitioners were born in the cadre on or after 01.4.2005. Here, upon direction issued by the writ Court on 29.4.1999 in Writ Petition No. 17195 of 1995 a right accrued to the petitioners to be absorbed on Class-III and Class-IV posts. Though, challenge was raised to that order by first filing Special Appeal and then by carrying the matter to the Supreme Court in Special Leave Petition, it is not the case of the State respondents that any stay order was passed in their favour at any stage, in any proceeding. Though, challenge was raised to that order by first filing Special Appeal and then by carrying the matter to the Supreme Court in Special Leave Petition, it is not the case of the State respondents that any stay order was passed in their favour at any stage, in any proceeding. Even then it cannot be denied that the Special Leave Petition came to be dismissed on 18.3.2002 well before the cut off date i.e. 31.3.2005. The State respondents did not act in accordance with law and did not comply with the direction to absorb the petitioners. They allowed almost three years to pass before the appointment letters came to be issued under threat of contempt proceedings. It is also not the case of the State respondent that there was any defect in the claim made by the petitioners or there were some delay caused by the conduct of the petitioners as may deprive them to any relief, now claimed. Once the State respondents are found to have delayed the proceedings, in entirety, they cannot be permitted to wriggle out of the consequence of delay. In fact, sufficient discretion has already been exercised in favour of the State respondents inasmuch as upon showing compliance by issuance of appointment letters to the petitioners, the contempt proceedings appear to have been dropped, at that stage. In view of the above, in the peculiar facts of the present case, it is found the right to be absorbed arose to the petitioners not on 09.4.2005 when the appointment letters came to be issued but on 29.4.1999 when the writ Court issued a positive direction in that regard. In any case, that right got vested on 18.3.2002 when the Special Leave Petition filed by the State against the decision of the Intra Court Appeal No. 540 of 1999 (dated 19.11.2001) came to be dismissed. Three years was much more than the time actually required to give effect to the order of the Supreme Court. Accordingly, the petitioners must be treated to have been absorbed, notionally on 18.3.2002. Hence, they are entitled to pension under Old Pension Scheme.” 21. Three years was much more than the time actually required to give effect to the order of the Supreme Court. Accordingly, the petitioners must be treated to have been absorbed, notionally on 18.3.2002. Hence, they are entitled to pension under Old Pension Scheme.” 21. On appeal, the decision in Bageshwari Prasad Srivastava was upheld by the Division Bench in State of U.P. and others v. Late Bageshwari Prasad Srivastava and others, 2023 AHC 69329 (DB) in terms of the following remarks: “No doubt, the appointment letter of the petitioners is dated 9.04.2005 and they joined in pursuance thereof on or before 20.04.2005, but it is an admitted fact on record that the direction of the Writ Court for absorption of the respondents against Class III and IV posts was issued on 29.04.1999. The special appeal filed by the State Government was dismissed on 29.11.2001 followed by dismissal of the SLP on 18.03.2002. The State Government had no justifiable reason with it to withhold the absorption and issuance of appointment letters to the respondents. The respondents were compelled to initiate contempt proceedings against the State and whereafter, appointment letters were issued to them on 9.04.2005. In the aforesaid background, the learned Single Judge has rightly held that the stand taken by the State for denying the benefit of old pension scheme to the respondents did not merit acceptance as valuable right to being appointed accrued in their favour atleast after dismissal of the SLP. The learned Single Judge has rightly directed the State to treat the respondents to have been absorbed in service notionally on 18.03.2002, the date on which the issue relating to their absorption in Government Service was finally settled by the Supreme Court.” 22. So far as the principle in Bageshwari Prasad Srivastava is concerned, it is evidently very different. That was a case where pursuant to the mandamus issued by a learned Judge of this Court on 29.04.1999, the right to be absorbed in favour of the petitioners on Class-III and IV posts stood crystallized on 29.04.1999. It was the respondents themselves, who, by invoking appellate procedures and without the benefit of a stay order had postponed compliance with the mandamus issued by the learned Judge in the writ petition earlier filed by the petitioners relating to their right to be absorbed in service. It was the respondents themselves, who, by invoking appellate procedures and without the benefit of a stay order had postponed compliance with the mandamus issued by the learned Judge in the writ petition earlier filed by the petitioners relating to their right to be absorbed in service. They implemented the mandamus after losing up to the Supreme Court and upon facing contempt action. By that time, they pushed matters beyond the cut-off date, when the Old Pension Scheme went out of currency. It was on those facts that the Court held that the rights of the petitioners to pension could not be judged with reference to the right when they were actually appointed. They had to be traced back to an earlier point of time when the Old Pension Scheme was still in force. 23. The learned Counsel for the petitioner has relied upon a decision of mine in Nirupama Malviya v. State of U.P. and others, 2023 (11) ADJ 524 . That again was a case where the petitioner had been selected by the Uttar Pradesh Secondary Education Services Selection Board for a Lecturer's post in Economics and put in the panel of selected candidates, that was published and notified on 01.12.2004 by the Secretary to the Selection Board. She was allotted a college at Meerut, where she was not allowed to join. The petitioner made efforts with the District Inspector of Schools, Meerut, but was not successful. She was turned away. She sent an application again to the Secretary of the Selection Board on 27.01.2005, requesting that she may be allotted some institution in District Allahabad or Lucknow. It was at this stage that the State Government introduced the Contributory Pension Scheme on 28.03.2005 instead of Pension-cum-General Provident Fund Scheme. The Contributory Pension Scheme was introduced for new recruitments made after 01.04.2005, in terms of the Government Order dated 28.03.2005. The petitioner was then allotted the Janta Girls Inter College, Lucknow. She was not allowed to join there too. The reason assigned by the college at Lucknow was that there was a stay order passed by the Lucknow Bench of this Court in favour of the teacher, who was functioning on the post. 24. The District Inspector of Schools, Lucknow addressed a memo dated 20.10.2005 to the Secretary of the Selection Board, apprising him of the inability shown by the Janta Inter College, Lucknow to appoint the petitioner. 24. The District Inspector of Schools, Lucknow addressed a memo dated 20.10.2005 to the Secretary of the Selection Board, apprising him of the inability shown by the Janta Inter College, Lucknow to appoint the petitioner. The petitioner moved this Court by way of Civil Misc. Writ Petition No. 74936 of 2005 for an appropriate direction to the Selection Board and the Authorities to ensure her placement. It was dismissed on account of lack of territorial jurisdiction. She then instituted a writ petition before the Lucknow Bench for enforcement of her rights. The Lucknow Bench, vide order 21.04.2006 passed in Writ Petition No. 3371 (S/S) of 2006, directed the Secretary of the Selection Board to ensure an appointment for the petitioner in any other institution, within a month. It was in compliance with the said direction that the petitioner was issued an appointment letter dated 01.08.2006, appointing her with the Zila Panchayat Balika Inter College, Gyanpur, Bhadohi. She joined the college on 02.08.2006. It was in the background of all these facts that I held in Nirupama Malviya (supra): “14. It is not the subject-matter of the controversy here, if the District Inspector of Schools was in error or the Board in carrying out the Board's allocation in favour of the petitioner, first made on 1.12.2004. The crux of the matter is that the petitioner's right stands crystallized, when the college was allocated by the Selection Board, and she reported to the concerned college, where it is presumed that the District Inspector of Schools would have issued necessary directions to the concerned college. The District Inspector of Schools did report back to the Board, which shows that he issued the necessary direction to appoint. If he did not, that too would be inaction on the part of the District Inspector of Schools. 15. Now, it would be a great travesty of justice if the petitioner is made to suffer either on account of the inaction or lethargy of the Selection Board, or the District Inspector of Schools or their callousness in selecting the appropriate institution to place the petitioner while allocating. If the institution, where the petitioner was first allocated, had not resisted her appointment or the District Inspector of Schools had enforced it, she would have joined well before the cut-off date under the Government Order dated 28th March, 2005, introducing a new pension scheme. If the institution, where the petitioner was first allocated, had not resisted her appointment or the District Inspector of Schools had enforced it, she would have joined well before the cut-off date under the Government Order dated 28th March, 2005, introducing a new pension scheme. The petitioner's rights cannot turn upon mere fortune dependent upon a chance of her date of joining being placed on the right side of the cut-off date. A crystallized right under the statute must move on surer ground about time when it comes into effect. It cannot be made dependent upon inaction or lethargy of Authorities about enforcement, or on the correctness of their choice to realize that right for the petitioner. 16. This Court is, therefore, of opinion that the petitioner would be entitled to trace her rights, as already said, either to the date when the allocation order was issued on 1.12.2004 or at any time before 25.1.2005, when the District Inspector of Schools, Meerut referred the matter to the Secretary of the Selection Board to allocate another college in same district or another district for the petitioner. The petitioner's right would, therefore, be traceable to a point of time, well before the cut-off date; not after it, when, in fact, she succeeded in securing an appointment letter from the allocated college after failing on two occasions, resisted by managements.” 25. The learned Counsel for the petitioner also pressed in aid the decision of this Court in Mahesh Narayan and others v. State of U.P. and others, 2020 (4) ADJ 172 , which I have relied upon in Nirupama Malviya, but that too was a case of inaction by the respondents that delayed the petitioner in securing appointment before the cut-off date came for enforcement of the Contributory Pension Scheme. It was not at all a case, like the present one, where there has not only been utter inaction on the petitioner's part to enforce his rights, but also positive acts of election, accepting the terms of the appointment letter, that placed the petitioner under the regime of the Defined Contributory Retirement Benefit Scheme. 26. In the considered opinion of this Court, no case for interference, therefore, is made out. 27. This writ petition fails and is dismissed. 28. There shall be no order as to costs.