Executive order over riding rules of article 309

Querist : Anonymous (Querist) 02 September 2023 This query is : Resolved
Sir,

Pension to govt servants is protected in Article 309.But without promulgation under Article 309,

1. Executive order for New pension scheme was notified on 22.12.2003, followed by a PFRDA ordinance which was notified and lapsed April 2003.

2. Again, a fresh PFRDA ordinance was notified immediately.

3. After many ordinances lapsed, finally it became Act after passed by parliament in 2014 giving retrospective effect on the executive order notification dated 23.12.2003.

4. Till that time, an executive order notification was over riding pension rules of Article 309.

I have come across many supreme court judgements ruling executive order cannot over ride or change or alter the rules under Article 309 and some not favouring retrospective effect too.

In view of the above, the implementation of NPS can legally valid only after it became law. Can we approach court on the above contention?

Thanks in advance

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Quick Summary

This discussion examines whether executive orders can override pension rules protected under Article 309, particularly concerning the New Pension Scheme (NPS) notified in 2003. While some argue executive orders cannot supersede Article 309, others contend that the subsequent PFRDA Act of 2013, with retrospective effect, legalised the NPS implementation. Amendments to pension rules were made to exclude government employees appointed after 1 January 2004 from the old pension benefits. The consensus leans towards the NPS being legally valid due to the enacted legislation, making court challenges on the basis of executive orders potentially unsustainable.

Sudhir Kumar, Advocate (Expert) 02 September 2023
not able to comment without seeing all the documents mentioned by you.

kavksatyanarayana (Expert) 02 September 2023
The pension scheme notified on 22.12.2003 has become regulated under the PFRDA Act, 2013 and the regulation framed thereunder by the Department of Financial Services and PFRDA. With the introduction of NPS w.e.f. 01.01.2004, amendments were made on 30.12.2003 to Central Civil Services (Pension) Rules, 1972, Central Civil Service (Commutation of Pension) Rules, Central Civil Services (Extraordinary Pension) Rules, General Provident Fund Rules and Contributory Provident Fund Rules to the effect that the benefits under these rules would not be applicable to the Government employees appointed on or after 1.1.2004 and covered by NPS. So I opine it is legally valid.

Dr. J C Vashista (Expert) 03 September 2023
Very well explained, opined and advised by senior expert Mr. Kavksatyanarayana ji, I endorse it.

T. Kalaiselvan, Advocate (Expert) 03 September 2023
By your contents it can be noted that the government enacted the law with retrospective effect, therefore there is no ambiguity in that.
In such circumstance your plan to approach court for clarification or to get your imaginary grievance redressed make not be legally maintainable.
You have mentioned about some supreme court rulings over riding the executive orders or not recognizing the retrospective of an act as not valid, if you nothing prevented you from filing the relevant judgment or at least the link so that more proper opinion could have been rendered.

Sudhir Kumar, Advocate (Expert) 25 March 2024
pension rules have been amended based ob the powers vested under proviso to article 309 to exclude post 1.4.2004 appointees.

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