JUDGMENT :

ASHUTOSH KUMAR, J.

1. The petitioners have approached this Court for a direction to the respondents not to give effect to the New Pension Scheme as notified under memo no. 690 dated 03.03.2006 of the Finance Department, whereby it has been declared that the persons appointed on or after 01.09.2005 shall only be entitled to New Pension Scheme, namely, Contributory Provident Fund Scheme in terms of an Extra Gazette Notification No. 614 dated 18.11.2005.

2. It has been submitted that the appointments of the petitioners is against a panel which was prepared pursuant to an Advertisement No. 01/1990 and, therefore, even if the appointment letters were issued to the petitioners after 01.09.2005, the same principle would apply which was applicable to the candidates who were appointed out of the same panel pursuant to the same advertisement but prior to 01.09.2005.

3. A brief background of the cases of the petitioners need be stated.

4. In the year 1990, Advertisement No. 01/1990 was issued by the Bihar State Subordinate Selection Board for filling up vacancies in different departments of the State of Bihar. The vacancies were not numbered and it was an open ended advertisement which included the anticipated vacancies, which were required to be filled up on the basis of the 3rd graduate level competitive examination. Shortly, thereafter, a decision was taken by the State Government to merge the Bihar State Subordinate Service Selection Board with Bihar Public Service Commission w.e.f. 28.02.1992. Pursuant to such merger, the examination was conducted by the Bihar Public Service Commission against the same advertisement which was issued by the Bihar State Subordinate Selection Board in the year 1990.

5. The Government of the day, on being questioned about the vacancies which were required to be filled up, suggested that any vacancies arising between 1990 and 1993 were required to be filled up against the aforesaid advertisement of 1990. This was obviously based on the idea that initiating a fresh selection process would be cumbersome and would result in delay in filling up of the vacancies. The first of the lists published by the Bihar Public Service Commission came out in the year 1996 and amended list followed it in the year 1997. However, in view of the fact that not all posts which had fallen vacant till 1993 were filled up by the aforesaid process, a writ petition vide C.W.J.C. No. 1376 of 1997 was filed seeking a direction for filling up all the posts which had fallen vacant by the year 1996.

6. This Court, however, directed vide order dated 03.01.1998 that all the vacancies which had fallen vacant till 1993 be filled up within a period of six months. Approximately, 731 posts were filled up but many posts which had fallen vacant between 1990-93 in various departments of the State of Bihar were never notified to the Bihar Public Service Commission. There was another round of litigation for filling up of those vacancies and the litigation bore fruit.

7. The various departments notified the existence of a number of vacancies which had arisen prior to 1993.

8. A reference may also be made to the decision in C.W.J.C. No. 9304 of 2009, in which, this Court had directed the respondents to fill up all the vacancies, which arose before 1993 within one month from the date of passing of the order.

9. The appointments pursuant to the aforesaid order were made till the end of the year 2011, the petitioners being the last of such appointees against those vacancies, which had fallen vacant prior to 1993.

10. In the meantime, as has been noted in the earlier part of the order, the State Government came up with the new Pension Rules. The petitioners did not know that they have been subjected to the New Pension Rules.

11. Hence, the present petition.

12. It has been urged on behalf of the petitioners that in several judgments of the Supreme Court as also of this Court, it has been settled that the old vacancies are governed by the old rules and any n