Case Background
This case is about which pension scheme will apply to a Bihar government officer who entered service around the time the New Pension Scheme (NPS) replaced the Old Pension Scheme in the State.
The officer first joined government service in Uttar Pradesh. He was selected by the Uttar Pradesh Public Service Commission in 2001 and appointed as District Minority Welfare Officer by order dated 16.08.2004. He joined that post on 09.09.2004.
Meanwhile, the Bihar Public Service Commission had issued an advertisement on 09.07.2000 for the 44th Combined Competitive Examination. The officer appeared and was successful. He was appointed as District Audit Officer under Bihar’s Co-operative Department through Memo No. 831 dated 04.05.2005. Out of twenty selected candidates, his rank was 11.
Because he was already serving in Uttar Pradesh, he sought time from the Bihar Government to join. By letter dated 16.05.2005 he asked for two months. The Uttar Pradesh Government relieved him from the post of District Minority Welfare Officer, Basti on 16.06.2005. He handed over charge and then sought one more month (18.07.2005) due to personal and family reasons.
He was also preparing for other competitive examinations. He had been selected to appear in the 1st Combined Civil Services Mains Examination, 2003 conducted by the Jharkhand Public Service Commission, scheduled between 23.06.2005 and 02.07.2005. Later, he again requested extension from the Bihar Co-operative Department on 13.08.2005, this time till September 2005, stating that he had to participate in the 46th Combined Competitive (Main) Examination starting on 03.09.2005.
The Bihar Co-operative Department accepted his request and allowed him time to join up to 30.09.2005. He finally submitted his joining report in the office of the District Audit Officer, Co-operative Societies, Muzaffarpur on 16.09.2005.
In between, on 31.08.2005, the Government of Bihar issued a resolution deciding to adopt the New Pension Scheme for government servants appointed on or after 01.09.2005. The resolution made NPS applicable to those appointed on or after that date.
After joining in Bihar, the officer wrote to the Director, General Provident Fund, on 05.05.2006, asking to be included under the Old Pension Scheme. However, he was placed under the New Pension Scheme even while his request remained pending. According to him, all junior officers in his batch, who had joined before 01.09.2005, were given old pension benefits.
Later, he again succeeded in a Bihar Public Service Commission examination — the 47th Combined Competitive Examination. He was appointed as Deputy Collector by notification dated 14.08.2009 and posted to Siwan for training. He was relieved from the post of District Audit Officer by Memo No. 3558 dated 01.09.2009 and joined as Deputy Collector on 02.09.2009.
After joining as Deputy Collector, he requested that his earlier service as District Audit Officer in the Co-operative Department be counted and amalgamated with his new cadre service. This was accepted. His earlier service was directed to be counted for death-cum-retirement gratuity, leave encashment and other post-retirement benefits, though he continued to be under NPS.
Feeling aggrieved that he alone in his batch was under NPS while others were under the old scheme, he made a detailed representation on 28.11.2022 to the General Administration Department for Old Pension Scheme benefits. The District Magistrate, Kishanganj forwarded it to the Principal Secretary, General Administration Department on 07.12.2022.
In this representation he argued that NPS applies only to employees appointed on or after 01.09.2005, but his appointment as District Audit Officer was on 04.05.2005. He also highlighted that his joining was delayed only because the Bihar authorities granted him time up to 30.09.2005. Therefore, in his view, he remained covered by the old scheme.
He also pointed out that out of 13 candidates who actually joined from his selection list, 12 batchmates were under the Old Pension Scheme, and only he was put under NPS. He said this was arbitrary and discriminatory.
He first approached the Patna High Court by filing C.W.J.C. No. 12012 of 2023, seeking old pension benefits. On 15.01.2024, the High Court disposed of that writ, directing him to file a fresh representation within two weeks before the Principal Secretary, General Administration Department, and asking the authority to pass a reasoned order within six weeks.
He filed the fresh representation on 20.01.2024. Respondent No. 2 (Principal Secretary, General Administration Department) rejected it by Memo No. 4685 dated 18.03.2024.
The officer then filed C.W.J.C. No. 12495 of 2024 challenging the rejection order. The learned Single Judge allowed his writ on 30.08.2024, set aside the rejection, and permitted him to exercise option for Old or New Pension Scheme within 15 days.
The State of Bihar filed Letters Patent Appeal No. 289 of 2025 against this Single Judge order. The present judgment dated 23.04.2026, delivered by a Division Bench of the Patna High Court, decides that appeal.
What the Court Examined and Decided
The central dispute before the Division Bench was whether the officer, who was appointed before 01.09.2005 but joined his Bihar post after that date due to extensions granted by the department, can opt for the Old Pension Scheme under the State’s later policy.
The State argued that the Finance Department’s Resolution Memo No. 1206(PE) dated 28.11.2023 was a policy decision laying down specific conditions for employees who were appointed through a single advertisement but joined before and after 01.09.2005. According to the State, the officer’s case did not fit those conditions because his delay in joining was entirely his own doing, not due to administrative reasons or litigation.
In their counter affidavit, the authorities accepted the main factual sequence. They admitted that the officer joined as District Audit Officer on 16.09.2005 and later joined as probationary Deputy Collector on 02.09.2009. They also accepted that the appointment to the Bihar post was made earlier and that he previously served as District Minority Welfare Officer in Uttar Pradesh.
The counter affidavit underlined that after his relieving from Uttar Pradesh on 16.06.2005 he still did not immediately join in Bihar. Instead, he repeatedly sought extensions—first for one month, then again on 13.08.2005 for time till September 2005. The Co-operative Department finally granted him time till 30.09.2005.
It was further stated that out of 20 candidates selected, 13 candidates, including this officer, submitted joining reports. Twelve of them joined before 01.09.2005 and were placed under the Old Pension Scheme. Only the officer joined on 16.09.2005 and was therefore placed under NPS.
The State took the stand that the appointment process was not delayed by any administrative action or court case. It emphasised that any delay after 01.09.2005 was only because of the officer’s own representations seeking extra time. On this basis, the State claimed the November 2023 Finance Department resolution did not permit extending old pension benefits to him.
On the other side, the officer argued that the crucial facts were different. The advertisement and vacancy were much prior to 01.09.2005. The selection process was completed before that date. His appointment order was issued on 04.05.2005. His juniors from the same list, who joined earlier, were under the Old Pension Scheme.
He also pointed out that his later joining was with the express permission of the department, which repeatedly extended his joining date up to 30.09.2005. He had not overstayed without leave; he acted within the time lawfully granted.
He further relied upon the Finance Department Resolution dated 28.11.2023 which specifically dealt with situations where, from a single advertisement, some candidates were appointed under the Old Pension Scheme and others under NPS. The resolution allowed those under NPS to opt into the Old Pension Scheme if certain conditions were met.
The Single Judge had already examined this resolution. It states that employees appointed under NPS from the same advertisement may be allowed to opt for the Old Pension Scheme if: the vacancy and advertisement were before 01.09.2005; the selection was completed before that date and some candidates joined before that date and got old pension; and the delay in appointment of those joining later was due to administrative reasons or pending judicial litigation. It also provides how and when such options must be exercised and how NPS accumulations would be adjusted.
The Single Judge noted that in this case, some candidates from the same selection had joined before 01.09.2005 and were treated under the Old Pension Scheme. The officer should, therefore, fall within paragraph 4(ii) of the notification dated 28.11.2023. The Single Judge also referred to earlier decisions of the Court where, in similar fact situations, employees were allowed to opt for the Old Pension Scheme.
On that basis, the Single Judge had set aside the rejection order of 18.03.2024 as bad in law and allowed the officer to exercise his option.
The Division Bench carefully re-examined these conclusions. It noted that the November 2023 resolution was itself issued by the State of Bihar in the light of a Government of India resolution dated 17.02.2020. The Bench reproduced the three key conditions contained in the State resolution and broadly agreed with the Single Judge’s understanding.
Importantly, the Bench held that the officer’s case “completely falls” within the conditions of the 28.11.2023 resolution. It observed that the vacancy and advertisement for the post of District Audit Officer were prior to 01.09.2005. The selection process was completed prior to that date. Some candidates had submitted their joining report before 01.09.2005 and all such candidates were covered by the Old Pension Scheme.
The Court further stressed that the officer’s delay in joining was with “due permission of the authorities” and that he was granted extension in order to participate in the Combined Competitive (Main) Examination. In this context, the Bench did not accept the State’s attempt to treat the delay purely as his personal fault disentitling him from the benefits of the resolution.
The Bench found no “perversity or palpable unreasonableness” in the Single Judge’s order. It held that the approach of the Single Judge was justified and not inconsistent with any provision of law. It also highlighted that a Letters Patent Appeal is an intra-court appeal where the Division Bench sits as a court of correction with a narrow scope of interference, especially where the Single Judge’s view is neither perverse nor illegal.
Since no legal error or perversity was found, the Division Bench refused to interfere. It dismissed the Letters Patent Appeal filed by the State of Bihar.
On a further submission by the officer’s counsel, the Bench also took note that he had already given his option to be governed by the Old Pension Scheme in terms of the Single Judge’s order but had not received any communication in response.
Recognising that his case is governed by the Old Pension Scheme and that the rejection order had already been set aside, the Court directed the authorities to “do the needful” within two months from the date of the Division Bench judgment. They must communicate a formal order to him, specifically indicating that his case will be governed under the Old Pension Scheme.
Why This Judgment Matters
This judgment is significant for government employees in Bihar who were selected and appointed before 01.09.2005, but who actually joined service around or after that date due to official permission or procedural reasons.
The Patna High Court has confirmed that such employees cannot be denied old pension benefits only because their joining date happened to fall after 01.09.2005, when the New Pension Scheme started, if the basic conditions of the 28.11.2023 Finance Department resolution are met.
The Court gave weight to the fact that the officer’s delay in joining was formally allowed by the department and that his juniors from the same selection batch were already under the Old Pension Scheme. It shows that the State must apply its own policy fairly and cannot selectively deny benefits.
For similarly placed officers, this judgment signals that where advertisement and selection were prior to 01.09.2005, and where the department itself extended joining dates, the option to switch from NPS to the Old Pension Scheme may be available, subject to the exact terms of the government resolution.
Legal Issues and Answers
Issue: Can an officer appointed before 01.09.2005, who joined after that date due to department-granted extensions, be refused the Old Pension Scheme and forced to remain under NPS despite a later government resolution allowing certain employees to opt for old pension?
Answer: No. The Patna High Court held that in this case the officer satisfied the conditions of the 28.11.2023 Finance Department resolution. The delay in joining was with official permission, the advertisement and selection were pre-01.09.2005, and batchmates had old pension. Therefore, he is entitled to opt for and be governed by the Old Pension Scheme, and the State’s rejection order was rightly quashed.
Issue: Should the Division Bench in Letters Patent Appeal interfere with the Single Judge’s order granting the officer the right to opt for the Old Pension Scheme?
Answer: No. The Division Bench found no perversity, unreasonableness, or inconsistency with law in the Single Judge’s reasoning. Considering the limited scope of intra-court appeals, it declined to interfere and dismissed the State’s appeal.
Cases Cited by the Court
- The Single Judge, whose order was under appeal, had relied upon:
- C.W.J.C. No. 10901 of 2006 (Md. Kayumuddin Ansari & Others v. State of Bihar & Others), decided on 03.08.2011.
- Ashok Kumar Sharma & Others v. The State of Bihar & Others, reported in 2021 (1) BLJ 415.
- C.W.J.C. No. 14039 of 2014 (Rakesh Kumar & Others v. The State of Bihar & Others), decided on 08.05.2018.
These were mentioned by the Division Bench while summarising the Single Judge’s order.
Case Details
Case Number: Letters Patent Appeal No. 289 of 2025 in Civil Writ Jurisdiction Case No. 12495 of 2024
Case Title: The State of Bihar & Others v. Amitabh Kumar Gupta & Others
Citation: 2026 (3) PLJR 529
Court: High Court of Judicature at Patna
Coram: Hon’ble the Chief Justice (Sangam Kumar Sahoo, CJ) and Hon’ble Mr. Justice Harish Kumar
Date of Judgment: 23.04.2026
Advocates:
- For the Appellants (State of Bihar and departmental authorities): Mr. Sita Ram Yadav, G.P.-16; Mr. Jitendra Kumar (A.C. to G.P.-16).
- For Respondent No. 1 (writ petitioner officer): Mr. Kumar Kaushik, Advocate; Mr. Sambhav Gupta, Advocate; Mrs. Namrata Dubey, Advocate; Mr. Kaushik Sagar, Advocate.
- For the Accountant General, Bihar: Mr. C. Swaroop, Advocate.
Nature of the Case: Letters Patent Appeal (intra-court appeal) by the State against a Single Judge’s order in a writ petition concerning entitlement to Old Pension Scheme versus New Pension Scheme for a Bihar government officer.
Link to Judgment: Full text of Patna High Court Judgment
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