IMPORTANT POINT
The Court established that eligibility for pension schemes is determined by the timing and nature of appointments, with fresh appointments post-NPS not qualifying for OPS benefits.

JUDGMENT :

SANJAY KUMAR MEDHI, J.

1. The instant petition filed under Article 226 of the Constitution of India is on the claim that the petitioners should be treated under the Old Pension Scheme (OPS) in connection with the service rendered by them with the Assam Power Distribution Company Ltd. (APDCL). As per the facts projected, the petitioners were initially appointed by the erstwhile ASEB in the period 1989 to 1995. Pertaining to the aspect of regularization of their service and parity of pay, the petitioners had approached this Court along with similarly situated persons in a number of writ petitions, the lead case being WP(C)/1234/2008 (Abdul Kadir and Another Vs. Central Assam Electricity Distribution Company). The said writ petitions were disposed of vide a judgment and order dated 11.12.2012. As per the petitioners, there was a direction for regularization of their service pursuant to which, in the year 2014, their services were regularized. The grievance of the petitioners, as indicated above, is regarding placing them under the New Pension Scheme. The petitioners claimed that since their initial appointments were prior to the introduction of the New Pension Scheme, they should be covered / given benefit under the Old Pension Scheme (OPS).

2. I have heard Shri P. Bhowmick, learned counsel for the petitioners. I have also heard Shri KP Pathak, learned Standing Counsel, APDCL. Shri Pathak has also submitted that affidavit-in-opposition has been filed on 21.07.2023. This Court has noticed that the petitioners have also filed rejoinder affidavit on 07.08.2023.

3. Shri Bhowmick, learned counsel for the petitioners has submitted that though the regularization of the services of the petitioners may be after the introduction of the New Pension Scheme, it is their initial appointment which is to be taken into consideration for determining under which Pension Scheme they should fall. It is submitted that there is no manner of dispute or doubt that the initial appointments of the petitioners were in the period 1989 to 1995, which is much prior to the introduction of the New Pension Scheme and therefore, the claim is reasonable, bona fide, which is liable to be allowed by this Court. The learned counsel has also referred to a Memorandum of Understanding when the erstwhile ASEB was converted into a Corporation APDCL wherein it was stated that the service conditions of the persons shall not be adversely affected. He has also drawn the attention of this Court to an order dated 05.09.2020, whereby it is claimed that similarly situated persons were brought under the Old Pension Scheme. It is submitted that 199 nos. of persons were regularized on 01.06.2005 and it is only the petitioners who were given the benefit of regularization in the year 2014 in accordance with the judgment and order dated 11.12.2012 of this Court mentioned above. He accordingly submits that a case of discrimination is made out as well as unreasonable action of the respondent authorities, warranting interference of this Court.

4. Per contra, Shri Pathak, learned Standing Counsel, APDCL has, at the outset, submitted that the very basis of the claim is a non-existing one and made on an incorrect assumption of the aspect of their entry into the services of the petitioners. By drawing the attention of this Court to the documents pertaining to their initial entry into service in the period 1989 to 1995, the learned Standing Counsel has submitted that the initial entry was by means of outsourcing and was not against a regular vacant and sanctioned post. It is submitted that the orders passed in the year 2014 were not orders of regularization of the services of the petitioners but of fresh appointments. It is submitted that when the appointment was done after introduction of the NPS, there is no reason to give the benefit of the OPS which has been replaced by the NPS in the interest of public service. The learned Standing Counsel for the respondents has also drawn the atten