Date of vacancy sanction, not suitability test, determines Old Pension Scheme eligibility.

The 14 applicants, employed by the Ministry of Defence, Government of India, sought to be covered under the Central Civil Services (Pension) Rules, 1972 (now 2021) instead of the National Pension System (NPS).

They were Ex-Trade Apprentices whose selection process for 50 semi-skilled industrial employee posts began prior to December 22, 2003, with the Ordnance Factory Board, Kolkata sanctioning these posts via letter No. 800/Manpower/2000-2001/A/I dated October 20, 2003.

The posts were then bifurcated on November 17, 2003.

Although the call letters for a suitability test were issued on December 22, 2003, the proposal for the test was approved on December 18, 2003.

The applicants joined service on various dates after January 1, 2004, and were consequently covered under NPS.

Following the Ministry of Personnel, Public Grievances and Pension, Department of Pension and Pensioners’ Welfare Office Memorandum (OM) dated March 3, 2023, which allowed a one-time option for coverage under CCS (Pension) Rules for employees whose posts were advertised/notified prior to December 22, 2003, the applicants submitted their option.

Their request was rejected by the respondents on the grounds that the call letters for the suitability test were issued on December 22, 2003, which was after the cut-off date.

1. Whether the applicants, whose recruitment process commenced with a sanction of posts prior to December 22, 2003, but whose call letters for suitability tests were issued on December 22, 2003, are eligible for coverage under the Central Civil Services (Pension) Rules, 1972 (now 2021) instead of the National Pension System (NPS).

2. Whether the OM dated March 3, 2023, concerning the option to switch from NPS to OPS, applies to the applicants given their recruitment timeline.

The primary rule of law applied is the Office Memorandum No. 57/05/2021-P&W(B) dated March 3, 2023, issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Pension and Pensioners’ Welfare.

This OM stipulates that Central Government civil employees appointed against a post or vacancy "advertised/notified for recruitment/appointment, prior to the date of notification for National Pension System i.e. 22.12.2003" and covered under NPS on joining service on or after January 1, 2004, may be given a one-time option to be covered under the CCS (Pension) Rules, 1972 (now 2021).

Additionally, the Government of India, Ministry of Defence, Department of Defence Production Directorate of Ordnance (C & S), Kolkata (Coordination & Policy) issued a clarification dated April 10, 2023, stating that in cases where vacancies have been sanctioned by the Ministry of Defence/OFB, the date of communication from OFB for recruitment against such vacancies may be considered as the cut-off date for eligibility for coverage under CCS (Pension) Rules.

The court also referenced precedents from the Apex Court in *J&K Public Service Commission Vs Dr. Narinder Mohan, (1994) 2 SCC 630* and the Allahabad High Court in *Rakesh Bhardwaj S/o Late Satyadev Vs State of U.P. through Principal (WP No. 41961/2006)*, which distinguished between notification of vacancy and advertisement in daily newspapers.

The Tribunal analyzed the key provision of the OM dated March 3, 2023, focusing on the phrase "advertised/notified for recruitment/appointment, prior to 22.12.2003".

It considered the Ministry of Defence's clarification dated April 10, 2023, which equated the date of sanction/communication for recruitment against vacancies with the cut-off date for eligibility under CCS (Pension) Rules.

The court noted that the initial sanction for 50 posts was issued via OFB notification No. 800/manpower/2000-2001/A/I dated October 20, 2003, and subsequently bifurcated on November 17, 2003.

This predates December 22, 2003, making the applicants eligible.

While call letters for suitability tests were issued on December 22, 2003, the internal approval for the proposal occurred on December 18, 2003, demonstrating that the recruitment process had effectively started before the cut-off date.

The Tribunal held that the "notification of vacancy" or "sanction of vacancy/post" date is crucial, not merely the date of external advertisement or call letters for tests.

The Tribunal also found the present case to be identical to *Lokendra Kumar Sharma & Ors. Vs. Secretary, Department of Defence Production & Ors. (O.A. No. 976/2024)*, where a similar issue was decided in favor of the applicants.

The court held that the sanction of 50 semi-skilled posts on October 20, 2003, serves as the cut-off date for determining eligibility under CCS (Pension) Rules, in accordance with paragraph 4 of the OM dated March 3, 2023, and the clarification dated April 10, 2023.

Consequently, the impugned order dated November 10, 2023/November 29, 2023, rejecting the applicants' option, was set aside.

The respondents were directed to allow the applicants to switch over to the General Provident Fund-cum-Statutory Pension Scheme and complete this exercise within eight weeks from the date of receipt/production of a certified copy of the order.

The Original Application was allowed.