The date of appointment is crucial in determining the applicability of the pension scheme, and references in advertisements to specific rules do not automatically confer entitlement to a particular pension scheme.

REKHA PALLI, J.

1. Vide the present writ petition, the petitioners assail the order dated 18.04.2016 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (the Tribunal) in O.A. No. 2945/2015, allowing the original application (OA) filed by the respondent no. 1/ applicant seeking coverage under the old pension scheme.

2. Pursuant to an advertisement issued by the respondent no. 2/UPSC inviting applications for the post of Deputy Legislative Counsel (DLC) in Grade III of the Indian Legal Service on 26.04.2003, the respondent no. 1 applied for the said post. This advertisement, besides prescribing the educational and other qualifications for the said post, also specified that the benefit of added years of service as admissible under Rule 30 of the CCS (Pension) Rules, 1972 would be applicable to the post. Based on his application, the respondent no. 1 was called for an interview by the UPSC on 25.09.2003 and subsequently, the UPSC recommended the name of one Mr. Ashok G. Pawade for appointment to the said post on 07.10.2003, while the name of the respondent no. 1 was placed in the reserve list of candidates.

3. When Mr. Ashok G. Pawade joined service on 19.08.2004, his offer of appointment clearly stipulated that he would be governed by the new pension scheme which had come into force w.e.f. 01.01.2004. However, on 09.11.2004, less than three months after joining service, Mr. Pawade resigned from his post and in light of the vacancy which arose, the petitioner no. 1 requested the UPSC to provide a substitute from the reserve list of candidates. Thereafter, the UPSC, vide its letter dated 26.12.2004, recommended the appointment of the respondent no. 1 for the aforesaid post. Resultantly, an offer of appointment was made to the respondent no. 1 on 05.01.2005 and he was appointed to the post of DLC on 25.02.2005.

4. The respondent no. 1 joined service on 25.02.2005 and began making regular contribution towards his pension fund in accordance with the New Pension Scheme. On 07.01.2015, i.e. after a period of approximately 10 years from his date of joining, the respondent no. 1 made a representation to the petitioner no. 1, for the first time requesting that he be covered under the old pension scheme, which request was rejected vide order dated 12.02.2015. Aggrieved by this decision, the respondent no. 1 filed the aforesaid O.A. before the Tribunal.

5. Before the Tribunal, the respondent no. 1 claimed that since the advertisement pursuant whereto he had been selected, had specifically stated that benefit of added years of service as admissible under Rule 30 of the CCS (Pension) Rules, 1972 was applicable to the post, it was apparent that he would be entitled to the benefit of the CCS (Pension) Rules, 1972, which provides for the old pension scheme.

6. On the other hand, the petitioner's plea before the Tribunal was that the respondent no. 1 having been appointed after 01.01.2004 against the vacancy arising from the resignation of Mr. Ashok G. Pawade, he had been rightly given the benefit of the new pension scheme which was already in force when he joined service.

7. Upon consideration of the rival contentions, the Tribunal vide its impugned order dated 18.04.2016, allowed the O.A. filed by the respondent no. 1 in the following terms:

"I have considered the aforesaid submission and I find considerable merit in the same. In the advertisement UPSC had made it clear that the selectees would be entitled to the benefit of old pension scheme. It is an admitted position that the applicant has been selected in pursuance to the some advertisement. Therefore, denying the benefit of old pension scheme to him would amount to changing the rules of the game in the midst of selection process and cannot be permitted. I draw support in this regard from various judgments relied upon by the applicant, such as, Himani Malhotra vs. High Court of Delhi, 2008 AIR SC 2013 in which it was held that it was not permissible for the Employer