The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S). No. 4366 of 2020 ---------- 1. Satish Shukla 2. Vikash Kumar Shukla 3. Abhijeet Kumar 4. Manoj Kumar Mishra 5. Rajeev Kumar Pandey 6. Yashwant Kumar Pandey 7. Amit Kumar Singh 8. Nandkishore Ambedkar 9. Manoj Kumar Paswan 10. Sujit Kumr Singh 11. Anuj Kumar 12. Parashuram Yadav 13. Dhananjay Kumar Mandal 14. Jeotish Kumar Singh 15. Arvind Chouhan 16. Dashrath Prasad Yadav 17. Santosh Kumar Singh 18. Pravesh Ram 19. Dwarika Prasad Mahto 20. Bhardwaj Upadhyay 21. Ram Bihari Ojha 22. Praful Ranjan 23. Dharmendra Kumar Mishra 24. Santosh Kumar Pandey 25. Lav Kumar Tiwari 26. Sanjit Kumar Shukla 27. Braj Mohan Ram 28. Shailendra Kumar 29. Mukesh Prasad 30. Mirtunjay Kumar Pandey 31. Ajay Yadav 32. Prem Prakash Pandey 33. Dhananjay Kumar Mehta 34. Bishwnath Yadav 35. Ravindra Ram 36. Ashish Kumar Dubey 37. Rohit Kumar Tiwary 38. Ravindra Tiwary 39. Md. Isrut Sheikh 40. Chandeshwar Mishra 41. Sanjay Kumar Ram 42. Rajeev Kumar 43. Pancham Ram 44. Ashok Paswan 1 45. Birendra Kumar Mehta 46. Sudhir Kumar Upadhyay 47. Rambrat Singh 48. Om Prakash Tiwari 49. Pradeep Mahto 50. Sachchidanand Sukla 51. Nandgopal Kumar 52. Satyendra Kumar Pandey 53. Saryu Prasad Gupta 54. Bijay Kumar Pandey 55. Lakshman Marandi 56. Subhash Kisku 57. Ibrahim Kindo 58. Lallu Singh 59. Anand Kumar Tiwary 60. Kumar Alok Ranjan 61. Kavi Shankar Tiwary 62. Rambadan Ram 63. Doulat Kumar 64. Manoj Kumar 65. Rajeev Kumar 66. Arvind Kumar 67. Narendra Kumar 68. Matin Ahmad Khan 69. Rajendra Prasad 70. Shailendra Kumar Yadav 71. Vijay Kumar Yadav 72. Chandramani Kumar Mehta 73. Rameshwar Yadav 74. Ashok Kumar Singh 75. Birendra Lohra 76. Bijay Kumar Topno 77. Satyendra Kumar Singh 78. Ramdas Dubey 79. Satyendra Kumar 80. Manik Chand Choudhary 81. Chaturgun Mistri 82. Basant Horro 83. Mangleshwar Oraon 84. Sunil Hembrom 85. Santosh Tigga 86. Abhay Oraon 87. Srikant Tiwary 88. Sashi Ranjan Kumar 89. Jalindra Sahu 90. Sanjay Kumar Singh 91. Pramod Kumar Tiwari 92. Narmedeshwar Pandey 2 93. Kumar Raviranjan Singh 94. Dilip Kumar Mehta 95. Shivshankar Mahto 96. Ashok Kumar Singh 97. Rajeev Mandal 98. Chandrashekhar Singh 99. Bhim Pandey 100. Durgashankar Dhar Dubey ………. Petitioners Versus 1. The State of Jharkhand through the Chief Secretary, Jharkhand, Ranchi. 2. The Principal Secretary, Department of Planning-cum-Finance, Govt. of Jharkhand, Ranchi. 3. The Deputy Secretary, Department of Planning-cum-Finance, Govt. of Jharkhand, Ranchi. 4. The Principal Secretary, Department of Home, Prison & Disaster Management, Govt. of Jharkhand, Ranchi. 5. The Director General of Police, Jharkhand, Ranchi. 6. The Inspector General of Police (Training), Jharkhand, Ranchi. 7. The Deputy Inspector General of Police (Personnel), Jharkhand, Ranchi. 8. The Deputy Inspector General of Police (Jharkhand Armed Police), Jharkhand, Ranchi. 9. The Commandant, Jharkhand Armed Police-8, Palamu. ………. Respondents. With W.P.(S). No. 4686 of 2019 1. Amit Kumar Singh 2. Santosh Kumar 3. Tinku Kumar 4. Kayamuddin Ansari 5. Ranjan Kumar Singh 6. Bhagwan Singh 7. Arvind Kumar 8. Braj Kishore Singh 9. Vinod Kumar Singh 10. Dilip Kumar Mishra 11. Suresh Kumar Singh 12. Santosh Kumar 13. Prem Kumar 14. Sunil Kumar Singh 15. Mrityunjay Kumar 16. Chanchal Kumar 17. Ranjay Kumar 18. Shahabuddin Ansari 19. Abhishek Kumar Diwakar 3
Legal Reasoning
20. Maharana Pratap Singh 21. Arvind Kumar Saha 22. Sushila Kumar Singh 23. Uday Malakar 24. Osho Pradeep 25. Kanhaiya Kumar 26. Shibu Rajwar 27. Prayag Tiwari 28. Ram Kumar 29. Rajesh Kumar Jha 30. Eman Kandulna 31. Bijay Kumar 32. Subhash Yadav 33. Amar Kumar Yadav 34. Kajal Kumar 35. Mahendra Prasad 36. Neelkant Thakur 37. Bishwarup Parera 38. Kumar Chhatrapal 39. Anil Kumar Singh 40. Dilip Kumar 41. Sushobhan Roy 42. Shiv Shankar Singh 43. Prabhunath Singh 44. Parikshit Napit 45. Praddumn Kumar Dubey 46. Chintu Kumar 47. Rajesh Dubey 48. Pramod Kumar Singh 49. Manish Rai 50. Prabhat Kumar Singh 51. Sanjeev Kumar Mishra 52. Sarweshawar Manjhi 53. Mithilesh Kumar 54. Shailendra Singh 55. Ashish Neadan Kujur 56. Sushil Kumar 57. Prabhat Kiran Kokil 58. Nirbhay Kumar Singh 59. Md. Firoz Akaruddin 60. Firoz Ansari 61. Arun Kumar 62. Pramod Kumar Rai 63. Vijay Kumar Singh 64. Dadhibal Singh 65. Md. Sabbir Ansari 66. Dhananjay Mahto 67. Mithilesh Kumar Singh 4 68. Rakesh Kumar Dhiraj 69. Mriyunjay Kumar 70. Harendra Prasad 71. Amit Kumar Banerjee 72. Manbodh Mukherjee 73. Kamal Gope 74. Mani Sharma 75. Rajesh Kumar Sahu 76. Chinmayanand Bhaduri 77. Santosh Kumar 78. Santosh Kumar Thakur 79. Nandji Roy 80. Akhauri Atul Kumar 81. Santosh Kumar Singh 82. Kajal Chandra Mandal 83. Md. Mustaque 84. Ritesh Kumar Singh 85. Vikash Kumar Mallik 86. Abhay Kumar 87. Sanjay Kumar Thakur 88. Ahilesh Kumar Thakur 89. Ravindra Kumar Sharma 90. Nirbhay Narayan Mishra 91. Sunil Kumar 92. Subodh Kumar Singh 93. M.S. Nishal Kongari 94. Rajesh Murmu 95. Surya Narayan Singh 96. Ajay Kumar Pandey ……….. Petitioners Versus 1. The State of Jharkhand through Secretary, Human Resources Development Department, Govt. of Jharkhand, Ranchi. 2. The Secretary, Department of Planning & Finance, Govt. of Jharkhand, Ranchi. 3. The Secretary, Department of Personnel, Administrative Reforms & Rajbhasha, Govt. of Jharkhand, Ranchi. 4. The Director General-cum-Inspector General of Police, Jharkhand, Ranchi. 5. The Inspector General of Police (Personnel), Jharkhand, Ranchi. ---------- ……….. Respondents CORAM: HON'BLE DR. JUSTICE S.N.PATHAK For the Petitioners ----------- :
Legal Reasoning
Mr. Ajit Kumar, Sr. Advocate Mr. Sameer Sahay, Advocate Ms. Aprajita Bhardwaj, Advocate 5 For the Respondents : Mr. Ajay Kumar Pathak, Advocate Mr. J.F. Toppo, GA-V Mr. Ajit Kumr, AC to GA-V Mr. Chandan Tiwari, AC to GA-I C.A.V. on 03.05.2024 Pronounced on 16.05.2024 ---------- Dr. S.N. Pathak, J. The issues involved in all these writ petitions are same, similar and identical and as such they have been tagged and heard together on various
Decision
dates and are being disposed of by this common order. Prayers: 2. Petitioners in both the writ petitions have prayed for a direction upon the respondents to treat them as members of Old Pension Scheme which was in effect till 30.11.2004 and not to treat them as members of the Jharkhand Sarkar Sarkari Karamchari Anshadayani Pension Yojna, 2004. The Facts: 3. Shorn of unnecessary details, an advertisement being Advt. No. 1/2004 was floated on 13.01.2004 for appointment to the post of Constable in Jharkhand Police and the last date for filling-up the application form was 15.02.2004. The petitioners having fulfilled the requisite qualification applied against the said advertisement. Since their applications were found in order, they were called for physical test and written test in which they successfully competed and their names found place in the merit list of selected candidates. It is the case of petitioners that the Government of India vide notification dated 22.12.03 introduced National Pension Scheme/ Contributory Pension Scheme and the same was made effective from 01.01.2004 and all the central government employees who were appointed on or after 01.01.2004 were guided by the New Pension Scheme. In furtherance of the said notification, the Government of Jharkhand vide letter dated 09.12.2004 adopted the said Scheme in the State of Jharkhand also and the new Pension Scheme was termed as ‘Jharkhand Sarkar Sarkari Karamchari Anshadayani Pension Yojna, 2004’ and it was made effective from 01.12.2004 with a rider that all the employees who joins the services on or after 01.12.2004 will be guided by the said Scheme. 6 4. After implementation of the said Scheme, several cases were filed in relation to implementation of New Pension Scheme on the ground that though advertisements were published prior to the cut-off date but due to lethargic and lackadaisical approach of the respondents final joining were given to the successful candidates after the cut-off date and as such, they were forced to opt for New Pension Scheme. Thereafter, on the intervention of the Hon’ble Supreme Court, the Govt. of India, Department of Pension and Pensioners’ Welfare vide office memorandum dated 17.02.2020 has given one time option to port from New Pension Scheme to Old Pension Scheme to the Central Government Employees whose results were declared after the cut-off date though recruitment process were initiated prior to implementation of New Pension Scheme. 5. It is the further case of petitioners that advertisement in question was floated on 13.01.2004 and the results were published on 17.11.2004 but in spite of the same, the joining of the petitioners were accepted after the cut- off date fixed by the State Government for implementation of New Pension Scheme and hence, due to delay/ fault on the part of the respondents, the petitioners were forced to accept the New Pension Scheme instead of Old Pension Scheme. 6. The petitioners represented before the respondents several times but no heed was paid and as such, they have been constrained to knock the door of this Court. Arguments of Petitioner: 7. Mr. Ajit Kumar, learned senior counsel assisted by Mr. Ajay Kumar Pathak, learned counsel appearing for the petitioners assiduously argues that the petitioners cannot be made to suffer with respect to the pensionary benefits on account of the fact that delay was caused by the respondents in accepting joining of the petitioners inasmuch as though the final results were published on 17.11.2004 but the joining was accepted after implementation of New Pension Scheme. Learned senior counsel further argues that the basic terms and conditions of service such as the right to receive pension upon superannuation, as applicable at the time of 7 notification of the posts, cannot be later on altered to the prejudice of the petitioners. Learned senior counsel further argues that the vacancy against which the petitioners were appointed pertains to the year 2002-03 and hence, the petitioners were to be governed by the Old Pension Scheme as applicable to the post of constables in the year 2002-03. Even otherwise, the results were declared on 17.11.2004 and therefore, there was no reason to deprive the petitioners from the benefits accruing to the said post till 30.11.2004 and in principle it is submitted that Rule of the Game cannot be changed in the mid of the Selection/ Recruitment Process. Learned senior counsel further argues that petitioners are entitled to be treated as members of the Old Pension Scheme which was in effect till 30.11.2004. 8. It has been further argued that similar issue fell for consideration before this Court in case of W.P.(S). No. 1869 of 2017 (Lalit Kumar Jha & Ors. Vs. the State of Jharkhand & Ors.) disposed of on 03.07.2017 wherein this Court directed the respondents to issue fresh office order giving notional date of appointment w.e.f. 22.12.2003 to the petitioners of that case. In compliance of the Court’s order, the respondent-State came out with fresh resolution dated 05.09.2022 and thereafter on 25.08.2023 giving the benefits of Old Pension Scheme to all its employees working in the State of Jharkhand. However, still there was some anomaly in the resolution which was challenged before this Court in case of Dr. Hari Kishore Singh & Ors. Vs. State of Jharkhand & Ors., reported in 2023 SCC Online Jhar. 1696 and this Court after hearing the parties at length, directed to the respondents to issue a fresh resolution by deleting the word ‘बश्ቔे’ from clause – 5 of the resolution dated 25.08.2023. Arguments of Respondents: 9. On the other hand, placing reliance to the supplementary counter- affidavit dated 21.03.2024 filed in W.P.(S). No. 4366 of 2020, learned counsel appearing for the respondents very fairly submits that earlier a counter-affidavit has been filed by the respondents based on letter dated 05.07.2005, issued by the Finance Department, Govt. of Jharkhand, wherein 8 it has been stated that as per recommendation made by the Fitment Committee, the State Government Employees are entitled to get pay and other facilities alike Central Government Employees. In terms of the New Contributory Pension Scheme in place of existing one, the Government of Jharkhand has also decided to introduce this New Pension Scheme in the name of ‘Jharkhand Sarkar Sarkari Karamchari Anshdayi Pension Yojna, 2004’ w.e.f. 01.12.2004. Subsequently, the State Government has decided to grant the benefits of Old Pension Scheme with certain conditions under the Jharkhand Pension Rule, 2000 for the employees who have joined after 01.12.2004 vide resolution contained in memo no. 126 dated 01.08.2022. Thereafter, the Finance Department vide resolution contained in memo No. 143 dated 05.09.2022 relating to implementation of Old Pension Scheme has developed Standard Operating Procedure (S.O.P.) and approved certain proposal in order to start Old Pension Scheme for the employees who have joined after 01.12.2004. Again, the Finance Department, Govt. of Jharkhand has issued amended resolution dated 25.08.2023, whereby the Old Pension Scheme has been implemented for the government employees who have joined after 01.12.2004 with certain conditions as mentioned in the said resolution. Learned counsel accordingly submits that in view of decision of the State Government to re-introduce the Old Pension Scheme for the employees who have joined after 01.12.2004, the present writ petitions have become infructuous. Findings of the Court: 10. Having gone through the rival submissions of the parties and from perusal of the documents brought on record on record, this Court is of the view that t issue involved in this writ petition is no more res integra as the same has already been set at rest by the Hon’ble Delhi High Court in case of Dr. Davinder Singh Brar Vs. Union of India & Ors. [W.P.(C). No. 756 of 2020] which has been affirmed upto the Hon’ble Apex Court. Similar issue fell for consideration before this Court W.P.(S). No. 1869 of 2017 (Lalit Kumar Jha & Ors. Vs. the State of Jharkhand & Ors.). In compliance thereto, respondent-State have came out with fresh resolution 9 dated 05.09.2022 and thereafter on 25.08.2023 extending the benefits of Old Pension Scheme to all its employees working in the State of Jharkhand. However, the certain conditions enshrined in the said resolutions was subject matter of challenge before this Court in case of Dr. Hari Kishore Singh & Ors. Vs. State of Jharkhand & Ors., reported in 2023 SCC Online Jhar. 1696. Since the petitioners of the said cases were mainly aggrieved by insertion of the word ‘बश्ቔे’ in clause – 5 of the resolution dated 25.08.2023, a specific reply was sought for from the NSDL as well as Union of India. Thereafter, this Court after hearing the parties at length, directed the respondents to issue a fresh resolution by deleting the word ‘बश्ቔे’ from clause – 5 of the resolution dated 25.08.2023. The relevant paragraphs of the order passed in case of Dr. Hari Kishore Singh & Ors. Vs. State of Jharkhand & Ors. (supra) reads as under: “21. As the petitioners were aggrieved by Clause-5 of the said resolution, a specific reply was sought for from the respondent Nos. 7 to 9. It has been stated by respondent Nos. 7 to 9 (in W.P.S. No. 3017 of 2021) that the respondents above- named have no objection as the pension corpus of such eligible employees of the State Govt. covered under NPS, in respect of whom the above mentioned O.M. (dealing with employees whose process of appointment commenced prior to 01.12.2004) is applicable shall be eligible to go out of NPS, in terms of the decision of the State Govt., as conveyed therein. In such circumstances, the nodal office of the State Govt. shall have the option to take full remittance of the pension corpus (covering employee and employer contribution and accretion thereon) in accordance with the applicable process envisaged and give appropriate accounting treatment as is required to give effect. This process is automatic and there is no need for any clarifications or instructions, to be given by the respondents above-named for remittance of the amounts involved. 22. If such is the position as stated by the respondent Nos. 7 to 9 (in W.P.S. No. 3017 of 2021), there was no occasion to in the said Resolution dated 25.08.2023. The insert Clause-5 respondent-State have inserted the condition , which ought not to have been inserted if respondent Nos. 7 to 9 (in 10 W.P.S. No. 3017 of 2021) are accepting that the entire process/transaction is automatic. 23. This Court is of the view that the word should be deleted and is hereby ordered to be deleted and Clause-5 of the Resolution dated 25.08.2023 be read as if the said word was not there. If the word nothing remains to be decided by this Court thereafter.” is removed from Clause-5 11. Regarding cut-off date for extending the benefits of Old Pension Scheme instead of New Pension Scheme, this Court considering the ratio laid down by the Hon’ble Delhi High Court in case of Dr. Davinder Singh Brar Vs. Union of India & Ors. [W.P.(C). No. 756 of 2020] has clearly held that petitioners are entitled for the benefits of Old Pension Scheme and it was accordingly ordered to extend the benefits of Old Pension Scheme to the petitioners in terms of CCS (Pensions) Rules, 1972 by issuing appropriate orders. In the said order no condition was imposed for extending the benefits of Old Pension Scheme and hence, the State cannot impose such conditions for considering the cases of petitioners for granting the benefits of Old Pension Scheme. Order of the Hon’ble Delhi High Court has been affirmed upto the Hon’ble Apex Court and as such, the same becomes law of the land. This Court in several other writ petitions viz. W.P.(S). No. 1869 of 2017 (Lalit Kumar Jha & Ors. Vs. the State of Jharkhand & ors.) and in W.P.(S). No. 2797 of 2017 (Sanjari Bano Vs. State of Jharkhand & Ors.) was of the clear view that date on which appointments letters were issued which was prior to 2004 should be treated as the notional date of appointment meaning thereby any Advertisements/ Orders of Appointment issued prior to 2004 shall be considered to be date of notional appointment and there is no embargo in treating them as appointed prior to 2004 and extending the benefits of OPS. Thereafter, it has been apprised to the Court that State Government has come-out with notification dated 05.09.2022 for extending the benefits of Old Pension Scheme which was conditional. Thereafter, several writ petitions were filed challenging the resolution dated 25.08.2023. In Dr. Hari Kishore Singh & Ors. Vs. State of Jharkhand & Ors. (supra) after hearing the parties, this 11 Court issued a clear direction to the respondents to come-out with fresh resolution by deleting the word ‘बश्ቔे’ from clause – 5 of the resolution dated 25.08.2023. 12. In the instant case, a specific affidavit has been filed by the respondents on 21.03.2024 wherein it has been clearly stated that the State of Jharkhand has decided to implement the Old Pension Scheme for the employees who have joined after 01.12.2004 and as such, the present writ petitions have become infructuous. 13. Since the State Government in view of the orders passed by this Court has re-introduced the Old Pension Scheme for the employees who have joined after 01.12.2004, nothing remains to be adjudicated, save and except to direct the respondent-State to come-out with a fresh resolution in view order and direction given by this Court in case of Dr. Hari Kishore Singh & Ors. Vs. State of Jharkhand & Ors. (supra), which reads as under: “25. The respondents are directed to issue a fresh resolution by the word deleting the from Resolution dated 25.08.2023.” the Clause-5 of 14. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, both the writ petitions are hereby allowed. The respondents are accordingly directed to implement its own resolution dated 25.08.2023 in case of present petitioners also in view of observations and directions given by this Court in case of Dr. Hari Kishore Singh & Ors. Vs. State of Jharkhand & Ors. (supra). 15. I.A. No. 1342/2021 stands closed. kunal/- (Dr. S.N. Pathak) 12