Union Of India & Ors. vs Rajesh Kumar P & Ors.

Devan Ramachandran, J.

We are considering these Original Petitions together, since the factual and legal aspects involved are identical, if not similar; while all the claimants – respondents herein, stake claim for benefits that are common.

For the sake of convenience, we will treat OP(CAT) No.153/2025 as the lead case and all references to documents shall be as mentioned therein.

The sole question in these cases is whether the respondents were entitled to exercise option to continue in the old Pension Scheme, namely that covered by the CCS (Pension) Rules, 1972 (now 2021).

Admittedly, through Annexure A5 Office Memorandum dated 03.03.2023, employees appointed against posts/vacancies advertised/notified for recruitment/appointment prior to the date of notification of National Pension Scheme (NPS), namely, 22.12.2003, were given an option to remain in the old scheme – and is covered under the National Pension Scheme on joining service on or after 01.01.2004, which option had to be made not later than 31.08.2023.

The party respondents assert that, even though they made the option as above, they were not given the benefits thereunder; and hence were forced to approach the learned Central Administrative Tribunal, ('Tribunal' for short), Ernakulam Bench, through various original applications.

The defence built by the petitioners against the afore claim is that, even going by Annexure A5, only those employees who had been appointed against the post or vacancy notified for recruitment prior to 01.01.2004, will be entitled to make the one-time option. They assert that since the party respondents were appointed consequent to a notification, namely Annexure A3, dated 05.01.2004, they are not even entitled to exercise an option, much less continue under the old scheme.

The learned Tribunal has found in favour of the party respondents, to thus allow all the original applications; against which, these Original Petitions have been filed.

Sri.O.M.Shalina, learned Deputy Solicitor General of India, instructed by Sri.T.V.Vinu – learned Central Government Counsel, reiteratingly, argued that, when the respondents have not been able to establish that they were appointed consequent to a notification issued prior to 01.01.2004, the learned Tribunal ought not to have given them any benefit. She predicated that the first notification of the vacancies - against which the party respondents have been appointed - is Annexure A3 dated 05.01.2004; and consequently, that the very edifice of their claim stands obliterated.

Sri.Vineeth Komalachandran and Sri.Vishnu S.Chempazhanthiyil – appearing for the party respondents, in response, submitted that the afore assertion - that there was no notification prior to Annexure A3 - is incorrect; and that, as found by the learned Tribunal, such a notification is born from the files of the Department, produced along with Annexure A2. They argued that the learned Tribunal was, therefore, without error in having allowed the original applications; and prayed that these Original Petitions be dismissed.

It is ineluctable from the afore narrative of facts and submissions that the sole aspect to be ascertained and discerned is whether the party respondents were appointed pursuant to a notification of vacancies prior to 01.01.2004 or otherwise.

As noticed above, the petitioners rely upon Annexure A3 notification, to assert that this was the first notification and since it is dated 05.01.2003, the claims of the party respondents do not have any legs to stand on.

The learned Tribunal has, however, found that Annexure A3 cannot be a notification notifying the vacancies to the post; but, at the best, a notification informing candidates of the examination to be conducted. It then read Annexure A2, to hold that the notification must have been issued much earlier; but, in the absence of such being made available by the petitioners, concluded that the party respondents are entitled to relief.

We cannot find fault in the approach adopted by the learned Tribunal because, when one reads Annexure A3 carefully, it solely says that the examination for filling up of the vacancies in the post in question are notified to 28.03.2004. As per Annexure A5 Office Memorandum, the benefit offered to an employee to exercise option, to continue in the old pension scheme, is dependent on whether he/she has been appointed “against a post or vacancy which was advertised/notified for recruitment/appointment, prior to the date of notification for National Pension Scheme i.e. 22.12.2003 and is covered under the National Pension Scheme on joining service on or after 01.01.2004” (sic).

It is admitted, without reservation, that the party respondents were all appointed after 01.01.2004; and as said above, the only controversy is whether such appointments were made based on a notification made prior to that date.

We find favour with the observations of the learned Tribunal that Annexure A3 cannot be seen to be the notification issued by the Authorities calling for candidates to fill up the vacancies; but is luculently one that notifies the candidates of the selection examination.

This is crucial because, as already noticed, Annexure A5 does not talk about a notification that notifies examination, but which notifies the post or the vacancy in question.

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There is no input made available by the petitioners as to the notification issued by them notifying the posts or vacancies; but they rely solely on Annexure A3, which is one that notifies the examination for the purpose of selection to it.

In contra-distinction, Annexure A3 probabalises that the notification notifying the vacancies was one issued prior to Annexure A3; and one cannot find such a holding by the learned Tribunal to be in error in the circumstances presented.

In such circumstances, we obtain no reason to intervene; and consequently dismiss all these Original Petitions.

It is at the request of Sri.T.V.Vinu – learned Central Government Counsel, that we have listed this matter today for being spoken to.

Sri.T.V.Vinu submitted that, since the respondent had, before the learned Tribunal, sought the benefit of Annexure A3 final order, which has been set aside by this Court through Ext.P10, no other prayer sought for by her could have been granted.

Sri.Vishnu S.Chempazhanthiyil - learned counsel for the respondent, however, submitted that his client had filed the original application at a time when Annexure A3 final order of the learned Tribunal was in force; but, when it was set aside through Ext.P10 judgment of this Court, she amended the original application, to include prayer No.7 – praying that Annexure A7 be set aside. He explained that it was thus that the learned Tribunal allowed the original application - as was done in the case of five other connected matters - through a common order, which is under challenge in this Original Petition. He asserted that, therefore, no modification of the judgment is necessary.

We find the afore explanation of Sri.Vishnu S.Chempazhanthiyil to be tenable because, even when multiple reliefs are sought, it is possible that judicial Forums can allow the matter accepting one of them, as long as they are not contrary to each other.

In this case, the learned Tribunal did not consider prayer No.3; and in any event, the same is not in conflict with prayer No.7, as brought in through the amendment.

Therefore, we find no reason to differ from our view.