Point of Law: where persons selected together were being subjected to different pension scheme based upon the fortuitous circumstance i.e. delay in appointment to some. The Division Bench, however, has observed that service conditions prevailing on the commencement of recruitment process cannot be altered to the detriment of recruitees. This observation of the Division Bench, with utmost respect, does not correctly lay down the law as the distinction between rules of recruitment and conditions of service have been ignored. The principle that rules of recruitment cannot be changed can have no applicability in a scenario where conditions of service is changed on account of change in the service rules

JUDGMENT :

1. Whether, delay in selection for appointment, ipso facto, can be a ground to apply pension scheme applicable on the date of issuance of advertisement, for such selection, notwithstanding specific stipulation in the pension rules specifying date of entry in the service to be determinative of its applicability is the question that arises for consideration in this case.

2. Admitted facts in the context of which the above question arises for consideration are that an advertisement came to be issued by the U.P. Public Service Commission on 28th October, 2002 inviting applications for appointment against Combined Subordinate Services (Preliminary) Exam, 2002. Last date for making application as per the advertisement was 28th October, 2002. The recruitment was to be held in three stages i.e. Preliminary test; Main written test and lastly the Interview. All the petitioners applied against the advertisement and cleared the preliminary examination conducted on 30th March, 2003. Main Written Examination followed between 17.8.2004 to 27.8.2004, wherein also the petitioners qualified. Interview was conducted by the Commission between 9.5.2005 to 28.5.2005. The final select list was published on 13.6.2005. After the verification process was completed the petitioners were issued appointment letters on 7.3.2006 and 19.4.2006, pursuant to which they have joined and are working in different districts as Audit Officers. Some of the petitioners are also working as Assistant Accounts and Finance Officer. New Pension Scheme enforced w.e.f. 1.4.2005 has been made applicable upon all the petitioners and contribution from their salary is also being deducted since their initial appointment without any protest.

3. The process of recruitment had commenced in October, 2002 and petitioners contend that if it was concluded within a reasonable period, they could have been appointed before 31st of March, 2005 by when the erstwhile pension scheme was applicable. Submission is that for any delay occasioned in finalizing the recruitment they ought not be put to an disadvantageous position, as the terms of new pension scheme are less favourable in comparison to the terms contained in the old pension scheme.

4. New Pension Scheme has been enforced for government servants in State of Uttar Pradesh vide notification dated 28th March, 2005. Uttar Pradesh Retirement Benefits Rules, 1961 (hereinafter referred to as 'the Rules of 1961'), which regulated the earlier pension scheme also got amended vide U.P. Retirement Benefits (Amendment) Rules, 2005 vide Notification, dated 7.4.2005. The amended Rules and the Notifications enforcing New Pension Scheme upon the petitioners are not challenged in the writ petition. It is, however, urged that petitioners are entitled to the benefit of provisions under the Old Pension Scheme which remained operative till 31st March, 2005 in view of the law laid down by the Division Bench of this Court in Firangi Prasad Vs. State of U.P. and others reported in 2011 (2) UPLBEC 987, as also a recent judgment of this Court in Mahesh Narayan and others Vs. State of U.P. and others, Writ Petition No. 55606 of 2008. Contention is that delay in holding of selection cannot prejudicially effect the rights of the petitioners, inasmuch as, the pension scheme as per the old rules applicable on the date of advertisement would have to be applied. Reliance is also placed upon a judgment of the High Court of Uttarakhand in Writ Petition (S/S) No. 1170 of 2010 (Ashutosh Joshi and others vs. State of Uttarakhand and others), decided on 17.6.2013, which has been approved by the Division Bench with dismissal of Special Appeal No. 330 of 2013 vide judgment dated 26.6.2014. Reliance is placed upon the observation made by the Uttarakhand High Court in Ashutosh Joshi (supra) that as selection process had already begun during currency of old pension scheme and the advertisement also provided for the posts to be pensionable, therefore, a contrary stand would