Ishfaq Ahmad & Ors. vs Union Territory Of Jammu & Kashmir & Ors.

M.S.LATIF, M (J) oral

01/ Through the medium of this petition, the petitioners have, inter alia, sought the following reliefs :

02/ What emerges from the pleadings in the OA is that the petitioners are seeking extension of the benefit of the Old Pension Scheme (OPS). It is submitted that they participated in recruitment processes initiated pursuant to various Advertisement Notifications issued during the years 2005, 2008 and 2009, when the Old Pension Scheme was in force. However, due to delay, attributable to the respondents, in finalization of the selection process, the petitioners came to be appointed as Lecturers in the School Education Department after 01.01.2010 and were consequently brought under the New Pension Scheme introduced vide SRO 400 of 2009 dated 24.12.2009.

03/ Learned counsel submitted that the petitioners cannot be deprived of the benefit of the Old Pension Scheme merely because their appointments were delayed for reasons beyond their control, particularly when similarly situated candidates appointed pursuant to the same recruitment process have already been extended the benefit of OPS. The petitioners subsequently came to be appointed as Assistant Professors in the Higher Education Department through proper channel, without break in service, and were granted pay protection, thereby recognizing continuity of their Government service. However, as submitted, that despite representations, the

benefit of OPS has not been extended to the petitioners, compelling them to approach this Hon'ble court.

04/ Learned counsel for the petitioners submitted that the selection process, initiated pursuant to the aforesaid advertisement notifications, was not taken to its logical conclusion within a reasonable period of time and the petitioners, despite having applied pursuant to the advertisements issued in the years 2008- 2009, were made to wait for culmination of the selection process for years together and the delay in finalization of the selection process is wholly attributable to the respondents and in no manner to the petitioners. Learned counsel further submitted that the recruitment process initiated pursuant to the aforesaid advertisement notifications was set into motion much prior to issuance of Notification SRO 400 of 2009 dated 24.12.2009, whereby the New Pension Scheme came to be introduced and made applicable from 01.01.2010 and, as such, the petitioners had a legitimate expectation that they would be governed under the OPS, which was in vogue at the relevant point of time and, insofar as the petitioners are concerned, their selection process had commenced prior to issuance of Notification SRO 400 of 2009 dated 24.12.2009, for, they had submitted their application forms prior to coming into being of New

Pension Scheme and had already participated in the selection process and were awaiting culmination of the same when OPS was in vogue, but for the inordinate delay on the part of the respondents in finalizing the selection process, they came to be appointed in the year 2010-2012, after the coming into force of New Pension Scheme, thereby depriving them of the benefit of OPS for no fault of theirs. At the risk of repetition, learned counsel submits that the petitioners, after their appointment as Lecturers in the School Education Department, participated in the recruitment process for the posts of Assistant Professors and, after due selection, they were appointed as Assistant Professors without any break in service, thereby maintaining continuity of service, and accordingly they were granted the benefit of pay protection, which clearly establishes that they were treated as in-service candidates and their service was continuous in nature and not as a fresh appointees and grant of pay protection is a clear acknowledgment on the part of the respondents that the petitioners continued in service and their transition from the School Education Department to the Higher Education Department does not amount to a fresh appointment and as such they cannot be subjected to a different pension regime.

05/ It is submitted by learned counsel that there was no

stipulation in the advertisement notifications pursuant to which the petitioners had applied that in the event of delay in finalization of the recruitment process, the candidates would be governed by the New Pension Scheme instead of the Old Pension Scheme and, therefore, in absence of any such stipulation, the petitioners cannot be subjected to the New Pension Scheme, particularly when the delay is wholly attributable to the respondents. It is vehemently argued by the learned counsel that several similarly situated candidates, who had applied pursuant to the same advertisement notifications, particularly those, appointed against the disciplines of Arabic, Geography and Economics, have already been extended the benefit of OPS and are treated as governed by the Old Pension Scheme, whereas the petitioners herein have been subjected to the New Pension Scheme solely on account of delay attributable to the respondents, thereby resulting in hostile discrimination. He submits that the petitioners are identically situated in all material particulars, having participated in the same selection process initiated prior to 01.01.2010 and having been appointed against vacancies advertised before the introduction of the New Pension Scheme, thus, denial of the benefit of the Old Pension Scheme to the petitioners, while extending the same to similarly situated candidates arising out of

the very same recruitment notifications, amounts to hostile discrimination and violates the mandate of equality enshrined under Articles 14 and 16 of the Constitution of India. The applicants are, therefore, entitled to claim parity and equal treatment and cannot be subjected to a different pension regime without any rational basis. Learned counsel submits that the action of the respondents in subjecting the petitioners to the New Pension Scheme despite the fact that the recruitment process had commenced prior to 01.01.2010 and despite the continuity of service of the petitioners, is arbitrary, discriminatory, unjust and violative of Articles 14 and 16 of the Constitution of India.

06/ It is submitted that the issue, involved in the present case, is no longer res integra and it stands settled by a series of judgments passed by various Hon'ble High Courts including the Hon'ble High Court of Delhi and the Central Administrative Tribunal, wherein it has been consistently held that where the recruitment process has been initiated prior to the cut-off date for introduction of a new pension scheme, the candidates cannot be deprived of the benefit of Old Pension Scheme merely on account of delay in issuance of appointment orders. To substantiate the contention, learned counsel has relied upon a catenae of judgements, viz. Niraj Kumar Singh

and others versus Union of India & others, wherein the Hon'ble High Court of Delhi was dealing with a situation where the petitioners therein had participated in the recruitment process prior to the introduction of New Pension Scheme but their appointment letters were issued thereafter and the Hon'ble Court, after examining the entire factual matrix, held that such candidates are entitled to be governed under Old Pension Scheme and that the delay attributable to the respondents cannot be used as a ground to deny such benefit to the petitioners therein. Reliance is placed on yet another judgement delivered in case titled as Inspector Rajendra Singh versus Union of India, the Ministry of Home Affairs and Tanaka Ram versus Union of India, the Hon'ble High Court of Delhi, which judgment was affirmed by the Hon'ble Supreme Court. Relying on yet another judgement titled as Shyam Kumar Choudhary versus Union of India, identical relief was granted to candidates whose appointment letters were issued after the cut-off date despite their participation in the recruitment process prior thereto and the said judgment has also been upheld by the Hon'ble Supreme Court. Learned counsel submits that this Hon'ble Central Administrative Tribunal, in O.A. No. 1084/2020 titled as Mohammad Shafi Dar& Others versus Union Territory of J&K

& Others, vide judgment dated 25.09.2025, has also held that employees, who had entered into service prior to 01.01.2010 are entitled to pensionary benefits under Old Pension Scheme and the applicability of New Pension Scheme cannot be extended merely on account of administrative delay.

07/ Be that as it may, after arguing the matter for a considerable period of time, learned counsel for the petitioners fairly submitted that the petitioners would be satisfied if the respondents are directed to treat this petition as comprehensive representation of the petitioners and decide the same as expeditiously as possible in accordance with law.

08/ Learned counsel appearing for the respondents submits that they have no objection if the present O.A is disposed of with appropriate directions, without prejudice to the rights and contentions of the respondents.

09/ Heard learned counsel for the parties, perused the material available on record and the judgements cited before the court.

10/ Having regard to the limited prayer made by learned counsel for the petitioners and without expressing any opinion on the merits of the case, the present O.A is disposed of with a direction to the respondents to treat this petition together with all documents and

annexures appended thereto as well as the representations, if any filed by the petitioners earlier, as a comprehensive representation and decide the same by passing a reasoned and speaking order in accordance with the applicable statutory provisions, rules and governing legal framework, of course, subject to the petitioners’ eligibility and their entitlement to the New Pension Scheme under law and provided there is no legal impediment in doing so. Respondents are further directed that while considering the matter, they shall individually assess/examine the cases of petitioners as also in accordance with the mandate of the judgements cited above, of course, subject to the condition that their case is squarely covered by the import of the said judgements and they are similarly circumstanced with the petitioners therein. Needful to be done within a period of six weeks from the date a certified copy of this order and copy of this O.A is served upon the respondents.

11/ In the backdrop of what has been discussed above, this O.A 979/2026 is disposed of along with connected M.As, if any.