Date of Vacancy Notification Determines Eligibility for Old Pension Scheme Membership Over NPS

The applicants (20 in total) were appointed as Store Keepers and Assistant Store Keepers in the Indian Air Force

While the President of India sanctioned the filling of 530 civilian vacancies via a letter dated 28.07.2003 (covering vacancy years 2000-2002)

the formal advertisement for the applicants' specific units was published in the Employment News between February 7–13, 2004—after the New Pension Scheme (NPS) cut-off date of 01.01.2004

The applicants sought migration to the Old Pension Scheme (OPS) under CCS (Pension) Rules, 1972, per the Department of Pension and Pensioners' Welfare (DoPPW) O.M. dated 03.03.2023

The respondents rejected their representations on 20.10.2023, contending that since the advertisement was published after 22.12.2003, the applicants were ineligible for OPS

1. Whether the applicants have a vested legal right for coverage under the Central Civil Services (Pension) Rules instead of NPS, given that the vacancies were sanctioned/released prior to 22.12.2003, though the advertisement was published after 01.01.2004?

The court primarily applied Para 4 of the DoPPW Office Memorandum dated 03.03.2023, which allows a one-time option for OPS if the post/vacancy was "advertised/notified" for recruitment prior to the NPS notification date of 22.12.2003

Use of the terms "advertised" and "notified" was interpreted distinctly; "notified" refers to the formal statutory or administrative declaration of a vacancy (such as a requisition to an exchange or a sanction letter), whereas "advertised" refers to public announcement

The Tribunal further relied on the precedent in Union of India v. Narender Kumar Yadav (WP(C) 10544/2023, Delhi High Court), which held that a requisition to an employment exchange constitutes "notifying" a vacancy

The Tribunal reasoned that the term "notified" used in O.M. dated 03.03.2023 is distinct from "advertised"

In the present case, the notification of vacancies occurred on 28.07.2003, when the President’s sanction to fill 530 posts was communicated to the agencies to start recruitment action

This administrative act preceded the 22.12.2003 NPS cut-off.

The Tribunal observed that a similarly situated employee (Smt. Shilima Singh Bhadauriya) appointed under the same sanction letter had already been granted OPS benefits, and denying the same to the applicants solely due to a delay in the administrative publication of the advertisement would violate the principles of parity and equality under Articles 14 and 16 of the Constitution

Following the Delhi High Court's logic in Narender Kumar Yadav, the Tribunal concluded that the recruitment process legally "started" with the sanction letter in July 2003

It held that the applicants are entitled to coverage under the Old Pension Scheme (Rules of 1972/2021) as the vacancies were officially "notified" on 28.07.2003, prior to the NPS notification

The respondents were directed to allow serving applicants to switch to the GPF-cum-Statutory Pension Scheme and to pass appropriate orders for retired applicants within twelve weeks

No order as to costs was made