Date of vacancy notification determines eligibility for Old Pension Scheme.

The applicant, Venkatesan K.J., joined the Indian Army on 19.07.1986 as a Direct Entry JCO and retired as Subedar Major after 18 years of service at the age of 40.

He was due for retirement in August 2004, and the process for his civilian appointment began with a warning order on 20.02.2003.

His case was forwarded to the competent authority in October 2003, but approval was delayed until April 2004, leading to his appointment in a civilian post on 22.02.2005 and joining on 23.02.2005

The applicant submitted a one-time option on 14.04.2023, based on a DoPT OM dated 03.03.2023, to convert from the National Pension System (NPS) to the Old Pension Scheme (OPS), which was subsequently rejected

The respondents argued that the vacancy for the applicant was intimated by HQ CESC on 22.05.2004, which is after the cut-off date of 22.12.2003 for NPS applicability

The vacancy position for Civilian JE (Civil), JE (E/M), and JE (QS & C) for the period from 01.07.2004 to 31.12.2004 was forwarded by the competent authority to the Director General on 05.12.2003 (letter dated 05.12.2003)

1. Whether the applicant is entitled to convert from the National Pension System (NPS) to the Old Pension Scheme (OPS) under the CCS (Pension) Rules, 1972 (now 2021), in light of the DoPT OM dated 03.03.2023?

2. Whether the date of sanctioning the vacancy position (05.12.2003) or the date of vacancy intimation (22.05.2004) should be considered the cut-off date for determining eligibility for coverage under the CCS (Pension) Rules?

The court primarily applied the DoPT OM dated 03.03.2023, which allowed a one-time option for Central Government civilian employees to be covered under the CCS (Pension) Rules, 1972 (now 2021), if appointed against a post or vacancy advertised/notified for recruitment/appointment prior to 22.12.2003, but joined service on or after 01.01.2004

This was further clarified by DoPT OM dated 09.04.2024

The court also referred to the Government of India, Ministry of Defence, letter/clarification dated 10.04.2023, stating that the date of communication from OFB for recruitment against sanctioned vacancies may be considered as the cut-off date for eligibility under CCS (Pension) Rules, thus emphasizing the date of notification/sanction of vacancy/post

Precedents from J&K Public Service Commission vs. Dr. Narinder Mohan, (1994) 2 SCC 630, and Rakesh Bhardwaj vs. State of U.P. (Writ Petition No.41961/2006) distinguishing between notification of vacancy and advertisement in daily newspapers were considered

The principle of judicial discipline and adherence to coordinate bench decisions from State of Punjab vs. Devans Modern Breweries (2004) 11 SCC 26 and Mary Pushpam vs. Telvi Curusumary (2024) 3 SCC 224 was also followed

The court analyzed the applicant's eligibility based on the DoPT OM dated 03.03.2023, which allowed conversion to OPS for appointments against vacancies notified before 22.12.2003

The applicant's counsel argued that the initiation of proceedings for the civilian post was in 2003, indicating that the vacancies were for 2003 or prior

The respondents contended that the vacancy intimation on 22.05.2004, after the 22.12.2003 cut-off date, rendered the applicant ineligible

However, the court noted that the vacancy position for the relevant period (01.07.2004 to 31.12.2004) had been forwarded by the competent authority on 05.12.2003

Relying on the clarification dated 10.04.2023

and the reasoning in Lokendra Kumar Sharma & ors. Vs. Secretary, Department of Defence Production & ors. (OA 976/2024)

and D.Jayaraman vs. Chief Engineer and Another (OA No.310/00008/2022)

the court determined that the crucial date is the sanction/notification of the vacancy, not the date of intimation or actual joining.

Since the vacancy position was sanctioned on 05.12.2003, which is prior to the 22.12.2003 cut-off date, the applicant's case falls within the ambit of the DoPT OM

The court explicitly rejected the respondent's argument regarding the later date of vacancy communication by HQ CESC

It held that the applicant is eligible and entitled to switch over to the GPF-cum-OPS under CCS (Pension) Rules, 1972 (now 2021)

The OA was allowed, and the respondents were directed to facilitate the applicant's switch over within eight weeks from the receipt of the certified copy of the order