Vacancy Notification Date Determines Old Pension Scheme Eligibility, Not Appointment Date.

The applicant, K.L. Dayanidhi, joined the Indian Army on 19.07.1986 and retired after 18 years of service, reaching the rank of Subedar Major, at age 39.

A warning order for his discharge was issued on 20.02.2003.

According to para 8 of ROI 01/2003, for persons retiring between 1st July and 31st December, applications were to be submitted by 1st September, Board proceedings to competent authority by 15th October, and approved by 30th November.

The applicant was due for retirement in August 2004, and his case for a civilian post was forwarded in October 2003, but approval was delayed until April 2004.

He received an appointment order for a civilian post on 22.02.2005 and joined on 23.02.2005.

The DoPT OM dated 03.03.2023 allowed a one-time option for conversion from NPS to OPS for employees appointed against vacancies notified prior to 22.12.2003.

The applicant exercised this option on 12.04.2023, but it was rejected.

The respondents argued that the vacancy was intimated on 22.05.2004, after the cut-off date of 22.12.2003.

However, the vacancy position for the period from 01.07.2004 to 31.12.2004 was forwarded by the competent authority to the Director General (Personnel)/EIA, Military Engineer Service, New Delhi, via letter dated 05.12.2003.

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?

Whether the date of intimation of the vacancy (22.05.2004) or the date of forwarding the vacancy position (05.12.2003) should be considered the cut-off date for determining eligibility for the OPS?

The court primarily applied the DoPT OM dated 03.03.2023, which allows 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.

It also considered the Government of India, Ministry of Defence clarification dated 10.04.2023, stating that the date of notification/sanction of vacancy/post should be taken as the date for deciding eligibility.

Precedents like 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) which distinguish between notification of vacancy and advertisement, were noted.

The court also relied on the principle of judicial discipline to follow coordinate bench decisions as articulated in State of Punjab vs. Devans Modern Breweries (2004) 11 SCC 26 and Mary Pushpam vs. Telvi Curusumary (2024) 3 SCC 224.

The court analyzed that the DoPT OM dated 03.03.2023 grants a one-time option for conversion from NPS to OPS if the vacancy was advertised/notified prior to 22.12.2003.

The respondents argued that the vacancy was intimated on 22.05.2004, which is after the cut-off date.

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

Citing the Ministry of Defence clarification dated 10.04.2023, and judicial precedents, the court emphasized that the date of notification/sanction of the vacancy, not the advertisement, is crucial.

The court followed the reasoning in Lokendra Kumar Sharma & ors. Vs. Secretary, Department of Defence Production & ors. (OA 976/2024), which held that the initial sanction/communication of posts, even if prior to the formal advertisement, constituted the relevant date.

Similarly, the Chennai Bench in D.Jayaraman vs. Chief Engineer and Another (OA No.310/00008/2022) had set aside a rejection order because the notification was prior to 22.12.2003.

Thus, the court concluded that the forwarding of the vacancy position on 05.12.2003 was the relevant cut-off date, preceding 22.12.2003.

The court held that the sanctioning of the vacancy position on 05.12.2003 should be considered the cut-off date for deciding the applicant's eligibility for coverage under the CCS (Pension) Rules as per para 4 of the OM dated 03.03.2023.

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

The respondents were directed to allow the applicant to make this switch and complete the exercise within eight weeks from the date of receipt of the certified copy of the order.