Gujarat High Court
Reena Ravinder Sabarwal vs State Of Gujarat on 11 July, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20714 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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REENA RAVINDER SABARWAL
Versus
STATE OF GUJARAT & ORS.
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Appearance:
PARTY IN PERSON(5000) for the Petitioner(s) No. 1
MS SUMAN MOTLA, AGP for the Respondent(s) No. 1,2
MR RUTVIJ S OZA(5594) for the Respondent(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 11/07/2024
ORAL JUDGMENT
1. Issue Rule, returnable forthwith. Ms. Suman Motla, learned Assistant Government Pleader waives service of notice of rule for and on behalf of the respondent Nos.1 and 2. Mr. Page 1 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024 NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined Rutvij S. Oza, learned advocate waives service of notice of rule for and on behalf of the respondent No.3.
2. Heard Mr. Ravinder N. Sabarwal, learned party-in-person for the petitioner, Ms. Suman Motla, learned AGP appearing for the respondent Nos.1 and 2 and Mr. Rutvij S. Oza, learned advocate appearing for the respondent No.3.
3. The petitioner herein has approached this Court being aggrieved by the inaction on the part of the respondent No.2 in not deciding the application of the petitioner seeking conversion of Contributory Provident Fund (CPF) scheme to General Provident Fund (GPF) scheme and has prayed for the following reliefs:
"A) Be pleased to admit and allow this petition, B) Be pleased to issue a Writ of Mandamus and/or a Writ in the nature of Mandamus or any other appropriate Writ, Direction or Order directing the Respondent No.2 to extend the option of conversion from C.P.F Scheme to G.P.F Scheme in accordance with law and on the ground of equity.
C) Be pleased to pass such other and further orders as may be deemed fit in the interest of justice."
4. Brief facts leading to the filing of the present petition read thus:
4.1 The petitioner was discharging her duties as Laboratory Page 2 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024 NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined Assistant in the respondent No.3 - College, serving since 05.11.1977 and came to be superannuated on 14.06.2019. At the time when the petitioner joined the service, the employees were governed by the CPF scheme. On 01.01.1972, the Government of Gujarat passed a Resolution sanctioning a family pension scheme for the Government of Gujarat employees; which was made applicable to all State Government's regular employees whether temporary or permanent, who were in service as on 01.06.1971.
4.2 On 15.10.1984, the Government of Gujarat passed a resolution whereby, the said pension scheme was made available to the full time teaching staff of the University under the Education department and affiliated and aided non Government Arts, Science, Commerce and Education colleges in the State with effect from 01.04.1982.
4.3 On 14.09.1988, the Government of Gujarat passed a resolution whereby, the pension scheme was also made available to full time non teaching staff of the University under the Education department with effect from 01.04.1982. At the time when the said scheme was introduced, the benefits were not explained and conveyed in proper perspective to the Page 3 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024 NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined petitioner and in view thereof, the petitioner continued in the CPF scheme. Having understood the benefits of the said scheme as well as the identically situated employees having granted conversion from CPF to GPF, the petitioner requested the respondent No.3 by representation dated 05.02.2018 to opt for the GPF scheme instead of the CPF scheme. The respondent No.3, in turn, by letter dated 07.02.2018 requested the respondent No.2 to do the needful for conversion from CPF scheme to GPF scheme.
4.4 The petitioner also preferred a representation to the respondent No.3 on 19.07.2018. Pursuant thereto, the respondent No.3 also requested the respondent No.2 by letter dated 20.07.2018 to convert the petitioner from CPF scheme to GPF scheme. The said representations appear to have been unanswered by the respondent authority and in view thereof, the petitioner is constrained to approach this Court seeking the reliefs as referred above.
5. Mr. Ravinder N. Sabarwal, learned party-in-person appearing for the petitioner, at the outset submitted that though the petitioner was required to exercise the option to avail the benefits of the Government Resolution dated Page 4 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024 NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined 14.09.1988 within stipulated time, the petitioner was not aware of the benefits of the said scheme and in view thereof, there was a delay in exercising the said option. It is submitted that the petitioner herein seeks parity with the ratio laid down in Special Civil Application No.3250 of 2009 wherein, the benefits of the aforesaid resolution/option is extended to both;
teaching and non-teaching staff. Placing reliance on the aforesaid judgment, it is submitted that the respondent authority be directed to grant the benefits of pension scheme to the petitioner at par with all the beneficiaries of the said order. It is submitted that the said order was subject matter of challenge in Letters Patent Appeal No.94 of 2018 wherein, the order passed in the Special Civil Application No.3250 of 2009 came to be confirmed in the said appeal.
5.1 Placing reliance on the aforesaid, it is submitted that the Hon'ble Division Bench in paragraph 11(c), taking into consideration the ratio as laid down in case of D.S. Nakara vs. Union of India reported in (1983) 1 SCC 305, held that the pension retirees have to be treated as a homogeneous class and that, any further classification amongst them would be violative of Article 14 of the Constitution of India. In light of the Page 5 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024 NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined aforesaid, the appeal filed by the respondent - State came to be dismissed and the ratio laid down in Special Civil Application No.3250 of 2009 came to be confirmed.
5.2 It is submitted that the aforesaid order was subject matter of challenge before the Hon'ble Apex Court wherein, the ratio laid down by the Hon'ble Division Bench in Letters Patent Appeal No.2259 of 2017 and allied matters came to be confirmed. It is submitted that the a review was also filed by the respondent - State wherein, the respondent - State objected with respect to the benefits extended to non-teaching staff. The aforesaid contention raised by the respondent -
State was denied while deciding the review petition by order dated 12.01.2023. In light of the aforesaid, it is submitted that the benefits that are extended by virtue of the Government Resolution dated 14.09.1988, be extended to the petitioner also and the delay that is occurred, be considered by the Court in view of the fact that the petitioner was not aware about the benefits of the scheme in proper perspective.
6. Ms. Suman Motla, learned AGP appearing for the respondent Nos.1 and 2, submitted that there is a delay in filing the present petition and therefore, the petitioner's case Page 6 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024 NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined cannot be considered at par with the others; who have been accorded the benefits of the Government Resolution dated 14.09.1988. It is also fairly submitted by learned AGP that, whether there is a communication which is forwarded by the respondent No.3 - college to the respondent- State, is also required to be confirmed. In light of the aforesaid, it is submitted that if the petitioner were to make a fresh representation through the college, the same would be considered in accordance with law.
6.1 Ms. Motla, learned AGP, relied on the order passed in Special Civil Application No.18335 of 2017 dated 22.09.2022 wherein, the petitioners in the said petition, prayed to direct the respondent to grant benefits of GPF scheme by transferring the account of the petitioners from CPF to GPF scheme as provided in the Resolution dated 15.10.1984 and thereby, pay regularly pension and other pensionary benefits as per the said Government Resolution. The said contention was answered negative taking into consideration the fact that the petitioners in the said petition had retired upon attaining the age of superannuation long back and had received all the benefits available to them as on the date of their retirement and having Page 7 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024 NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined approached the Court in the year 2017, there was a substantial delay and the petitioners had acquiesced to the position by not changing the same for unreasonable long period. The petition was dismissed.
6.2 Ms. Motla, learned AGP, raised contention with regard to the parity claimed by the petitioner herein. Reliance is placed on the ratio laid down in case of Rajasthan Rajya Vidyut Vitran Nigam Ltd. vs. Dwarka Prasad Koolwal & Ors., reported in AIR 2014 SC 3655 more particularly, paragraph 7 as well as in case of Union of India & Ors. vs. M.K. Sarkar, reported in 2010 (2) SCC 59 more particularly, paragraphs 3, 9, 13, 17 and 26.
7. Pursuant to the objection raised by Ms. Motla, learned AGP, Mr. Ravinder N. Sabarwal, learned party-in-person, has placed on record a paper book wherein, at page 3 is a list of similarly placed employees of non-teaching staff; having been extended the benefit of the aforesaid Government Resolution dated 14.09.1988 by order passed in the list of Special Civil Applications already disposed of considering the judgments passed by the various Benches of this High Court. It is also brought to the notice of this Court that the petitioner herein has placed reliance and sought parity with the benefits Page 8 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024 NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined extended to the staff of the respondent No.3- college, which is duly produced at page 235. It is submitted that three employees viz. Dr. L.R. Mehta, Dr. B.T. Brahmkhatri and Mr. Joseph Pathical, have been extended the benefits of the Government Resolution dated 14.09.1988. Reliance is also placed on the ratio laid down by the Hon'ble Apex Court in case of Union of India vs. D.R.R. Sastri, AIR Online 1996 SC 1200. Placing reliance on the same, it was submitted that the Hon'ble Apex Court in the said case held that the delay in preferring an application would not deprived a person of a pensionary benefits when the Government itself had come forward with the liberalized pension scheme and gave the option to persons already retired to come over the pension scheme. Placing reliance on the aforesaid decision, it is submitted that the delay in preferring the representation/application may not be considered as so germane not to extend the benefits of the said Government Resolution dated 14.09.1988 to the petitioner herein and that, the present petition be allowed.
8. Mr. Rutvij S. Oza, learned advocate appearing for the respondent No.3 - college, submitted that the respondent No.3 Page 9 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024 NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined would also forward a fresh representation to the respondent Nos.1 and 2 upon receipt of the representation from the petitioner.
8.1 Mr. Rutvij S. Oza, learned advocate, drew the attention of this Court to the ratio laid down in Letters Patent Appeal No.2259 of 2017 dated 02.05.2019. Placing reliance on the same, it is submitted that the aforesaid issue raised in the present petition is no longer res-integra and has attained finality whereby, by various judgments delivered by the Hon'ble High Court of Gujarat, the stakeholders are extended the benefits of GPF scheme as provided in the Government Resolution dated 15.10.1984 with respect to the teaching staff and dated 14.09.1988 with respect to the non-teaching staff.
9. Having considered the contentions advanced by the learned advocates appearing for the respective parties, it is apposite to refer to the decision rendered in Special Civil Application No.3250 of 2009 and allied matters . Relevant paragraphs of the said decision reads thus:
"30. The issue, being one of pension, deserves to be considered at the end of the State Government sympathetically in favour of the petitioners. I am conscious of the fact that the claim of the petitioners to switch over to the pension scheme is at a belated stage, but at the same time, payment of pension is not a grace but a right of the Page 10 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024 NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined employee upon completion of the qualifying service. In the peculiar set of circumstances and special facts, the exercise of option to switch over to the pension scheme, in my opinion, should not be thwarted.
32. In Union of India and Ors. v. D.R.R. Sastri, 1997(1) SCC 514, there was delay in exercising the option for the Liberalised Pension Scheme in lieu of the C.P.F., which was considered factually to disentitle to pension. In that case, the respondent, a railway employee, opted for the Contributory Provident Fund, and thereafter, going on deputation to Heavy Engineering Corporation and resigning from the Railways after 22 long years of service and getting absorbed in the Corporation; when, subsequently, Liberalised Pension Scheme came to be introduced with retrospective effect from a date prior to the date of his resignation from the Railways, the Railway Board, by its letter dated 22-7-1974, enabling all the members of the C.P.F. to opt for this Scheme, directed the General Manager to bring the same to the notice of all the retired Railway servants. However, the respondent was not informed of the Scheme and retired from the Corporation without any pension, as the Corporation had no pensionable scheme. In such circumstances, despite the expiry of the time specified by the Railways for opting for the Liberalised Pension Scheme, the respondent's right to claim pension of Liberalised Scheme, despite delay, was upheld on refunding the amount he had already received. It is, therefore, very clear from the proposition of the law expounded in the said decision that in such a situation, a person can be allowed to exercise option even long after the expiry of the prescribed time-limit so that the substantive right to claim pension is not defeated by the processual provision. The facts of the present petition, even if it is held that there is a delay in exercising the option, then, also, it is fully covered by the pronouncement of the Hon'ble Supreme Court.
33. In view of the above, all the petitions succeed in part and are hereby partly allowed. The respondent authority is directed to reconsider the grant of the benefit of the pension scheme to all the petitioners in view of the Government Resolution dated 15th October, 1984 from the date of their respective retirement along with the interest at the rate of 9% per annum on the condition that all the petitioners shall refund/repay the amount of C.P.F at the rate of 12% to the authority concerned. Let this exercise be undertaken by the State Government at the earliest bearing in mind the observations made by this Court and pass a fresh order within a period of three months from the date of the receipt of the writ of this judgment and order."
10. It is also apposite to refer to the decision rendered by the Hon'ble Division Bench in Letters Patent Appeal No.2259 of 2017 and allied matters (Letters Patent Appeal No.94 of 2018 Page 11 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024 NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined in Special Civil Application No.3250 of 2009). Paragraphs 8, 11 to 15 reads thus:
"8. The learned Single Judges have considered the decisions which are pressed into service and also discussed that even when the teaching staff rises in rank, he/she has to undergo selection which is undertaken by a duly constituted selection committee after a public advertisement which comprises of subject expert, government nominee. The appointment orders issued pursuant to such selection specifically mentioned that he/she will be admissible to benefits of pension under the Rules. That such hierarchical promotions or career advancements were in fact akin to fresh recruitments. The learned Single Judges considered the two resolutions dated 23.11.1976 and 14.09.1988 and its relevant clauses. The consideration, as reflected read as under:
"10. Having thus heard both the sides and having also considered extensively various decisions, which are pressed into service, at the outset, it can be noticed that for selection of the Teaching Staff as per the UGC guidance, the issuance of public advertisement is must. Once a person applies under the said mode, a duly constituted selection committee is required to be formed, which comprises of the Subject Expert, Government Nominee, who is a Joint Director of the Education Department, Management Nominee and a Nominee of the Vice-Chancellor as per the Government Resolution dated November 23, 1976. Clause 15 of the very Government Resolution mandates prior approval.
11. The Government Resolution dated September 14, 1988, at this stage if is referred to, Clause 6 thereof provides for recruitment to the post of Lecturers, Readers and Professors in universities and colleges shall be on the basis of merit through all India advertisement and selection, provided that Lecturers who fulfill the criteria prescribed in the said scheme will be eligible for promotion to the posts of Readers. The minimum qualification required for appointment to the post of Lecturers, Readers and Professors will be those prescribed by the UGC from time to time. The Career Advancement System (for short 'CAS') is provided in Clause 10 of the said Government Resolution, which provides that every lecturer who has completed eight years of service after regular appointment, would be placed in the Senior Scale. Consistently satisfactory performance appraisal reports are also needed. He/she has to participate in two refresher courses/summer institutes, each of approximately 4 weeks' duration or engage in other appropriate continuing education programmes of comparable quality as may be specified by the UGC.
12. Clause 11 provides for eligibility criteria of a Lecturer for promotion to the post of a Reader in a senior scale.Page 12 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024
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13. Clause 12 of the said Government Resolution dated September 14, 1988, provides for the process of selection for promotion to the post of a Reader by the Selection Committee to be set up under the Statutes/Ordinances of the University concerned or other such Committees set up by the appointing authorities in accordance with the guidelines to be laid down by the UGC. It further provides that the post of Readers will be created for this purpose by upgrading a corresponding number of posts of Lecturers in the Universities and Colleges.
14. Instead of further dilating any issue relating to the CAS and the aspect of promotion under the said Scheme, it would be sufficient to notice that for the post of Lecturers in the Universities, the criteria are prescribed for selection and recruitment vide the said Government Resolution."
8.1 At this stage it shall also be relevant to peruse the resolution dated 14.09.1988. Paragraphs no. 10 to 13 are quite relevant and the same are reproduced hereinbelow:
"... CAREER ADVANCEMENT
10. Every Lecturer will be placed in a senior scale of Rs. 3000-5000 if he/she has -
(a) completed 8 years of service after regular appointment, with relasation as provided in a para 9 above,
(b) Participated in two refresher course/summer Institutes, each of approximately 4 weeks' duration or engaged in other appropriate continuing education programmes of comparable quality as may be specified by the UGC; and
(c) Consistently satisfactory performance appraisal reports.
EXPLANATION All Lecturers in the existing scale of Rs. 700-1600, who have completed 8 years service on 1st January, 1986, will be placed through a process of screening/selection as indicated in para 20 below, in the scale of Rs.3000-5000. The benefit of service provided in para 9 will be available for the initial placement also.
11. Every lecturer in the senior scale will be eligible for promotion to the post of Reader in the scale of pay of Rs. 3700-5700 in he/she has
-
(a) Completed 8 years of service in the senior scale, provided that the requirement of 8 years will be relaxed if the total service of the Lecturer is not less than 16 years, in case of a teacher, whose service as a lecturer is not more than 8 hours his previous service as a Tutor/Demonstrator is more than 8 years, his previous service as a Tutor/Demonstrator shall be counted as lecturer from the date he acquired qualification for the post of Lecturer in the ratio of 5 years Tutor/Demonstrator 4 years Lecturer. Such weightage will not be admissible beyond 16 years;
(b) Obtained a Ph.D. degree, or an equivalent published work; (c) Made some mark in the areas of scholarship and research as evidenced by self assessment, reports of referees, quality of publications, contribution to educational renovation, design; of new courses and curricula, etc.;Page 13 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024
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(d) Participated in two refresher courses/summer institutes each of approximately 4 weeks duration or engaged in other appropriate continuting education programme of comparable quality as may be specified by the UGC, after placement in the senior scale; and
(e) Consistently good performance appears is reports.
12. Promotion to the post of Reader will be through a process of selection by a Selection Committee to be set up under the Statutes/ Ordinances of the University concerned or other similar Committees set up by the appoint in authorities in accordance with the guidelines to be laid down by the UGC. Posts of Readers will be created for this purpose by upgrading a corresponding number of posts of lecturers in the Universities and Colleges.
8.2 What is noticeable on examination of the judgements of the learned Single Judges is that the litigation has a chequered history. The issue was one of pension and deserved consideration sympathetically by the State Government. The respondents - original petitioners claimed to switch over to the pension scheme, may be at a belated stage, and settled it is, by several decisions of the Apex Court, that pension is not a bounty. Looking to this aspect, the Government of Gujarat examined this question of giving option by constituting a committee whose members are as under:
"Under Resolution of Government of Gujarat, Education Department bearing No. N.G.C. 1101 5405-13-Kh. Dated 16/08/2002, a Committee has been constituted regarding the issues of the Government of Gujarat Affiliated Colleges / Universities. In this Committee following members have been included.
1. Dr.K.G. Mavani, Chancellor, Saurashtra University Chairman. 2. Dr.B.S. Jani, Chancellor, North Gujarat University Member. 3. Pro. K.S. Shastri, President, Professors Association, Gujarat University Area Member.
4. Pro. Indravijaysinh Gohil, President, P.G. Teachers Association, Bhavnagar Member
5. Pro. D.m. Patel, Representative, Gujarat State Professors Association Member.
6. Secretary, Higher & Technical Education Member.
7. Secretary (Expense), Finance Department Member. 8. Commissioner, Higher Education Member Secretary.
9. Prof. J.J. Bhatt, Prof. Vice-Chancellor, South Gujarat University Convener.
8.3 Amongst the recommendations that the Committee made, recommendation no. 6 reads as under:
"6. Regarding granting one more option for pension With regard to grant pension option, it is hereby resolved that as principally agreed in the meeting of the leaders of Professors with the then Honble Education Minister held in November, 2001, this Committee recommends that Professors who left out may be given an opportunity. Further, Professors who have already filled-up option and already deposited C.P.F. contribution with the Government and for the administrative reasons options were not forwarded to the Page 14 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024 NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined Government by Colleges or Universities then it is resolved to accept such cases immediately."
8.2 The schedule to the minutes had clause (c) which reads as under:
"(c) Pension Option: For giving pension option, Association has submitted that earlier in 1984 Government has issued orders for giving benefit and issued orders to accept option in this respect and thereafter twice orders have been issued for accepting option.
Department has made proposal to the Finance Department for giving one more option. In fact such option should be provided at every pay revision. In this respect, it is decided to forward proposal to Finance Department once again."
8.4 In other words, the committee resolved that as principally agreed, professors who were left out be given one more opportunity.
11. What is evident from the facts in juxtaposition to the case laws cited hereinabove is as under:
(a) The issue as far as this Court is concerned stands concluded by a number of judgements referred to hereinabove. At the outset, it has been reiterated by several judgements of this Court as well as the Apex Court that pension is not a bounty. In the judgement in the case of Deokinandan Prasad vs. State of Bihar reported in (1971) 2 SCC 330, the Apex Court has held as under:
"29. We are not inclined to accept the contention of the learned counsel for the respondents. By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the Rules. The Rules, we have already pointed out, clearly recognise the fight of persons like the petitioner to receive pension under the circumstances mentioned therein.
30. The question whether the pension granted to a public servant is property attracting Art. 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India. It was held that such a right constitutes "property" and any interference will be a breach of Art. 31(1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in Letters Patent Appeal by the Union of India. The Letters Patent Bench in its decision in Union of India v. Bhagwant Singh approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is "property" within the meaning of Art. 31(1) of the Constitution and he could be deprived of the same only by an authority of law and Page 15 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024 NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as "property" cannot possibly undergo such mutation at the whim of a particular person or authority.
31. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K. R. Erry v. The State of Punjab. The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet will and pleasure of the Government and that the right to superannuation pension including its amount is a valuable right vesting in a Government servant. It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a cut is sought to be imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the State. It is not necessary for us in the case on hand, to consider the question whether (1) A. T. R. 1962 Punjab 503. (2) I. L. R. 1965 Punjab 1. (3) I. L. R. 1967 Punjab & Haryana 278 652 before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision, on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant.
32. This Court in State of Madhya Pradesh v. Ranojirao Shinde and another had to consider the question whether a "cash grant" is "property" within the meaning of that expression in Arts. 19(1) (f) and 31(1) of the Constitution. This Court held that it was property, observing "it is obvious that a right to sum of money is property".
33. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Art. 31 (1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Page 16 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024 NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined Art. 19(1)(f) and it is not saved by sub-article (5) of Art. 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner fight to receive pension affects the fundamental right of the petitioner under Arts. 19(1)(f) and 31(1) of the Constitution, and as such the writ petition under Art. 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law."
(b) The objection by the State Government that now the respondents' case is barred by delay deserves to be rejected. In the case of D.R.R Sastri (supra) relied upon by learned Senior Counsel Shri S.N. Shelat, there was a delay in exercise of option. The proposition of law as held so rightly by the learned Single Judge is that had they been asked to opt for pension scheme and informed, they would have done so. Delay in facts of the case would not be fatal and the respondents would be entitled to the benefit of exercising their option. This is particularly when from the minutes of Committee reproduced hereinabove, it is clear that the Committee did recommend that the Professors be given one more chance to exercise their options.
It is also evident that similarly situated petitioners including some of the present respondents had as early as in the year 2007 approached this Court by filing Special Civil Application No. 8383 of 2007 and group matters. This Court after recording the concise facts in the petitions and considering the judgements of the Apex Court and recording the contentions that the petitioners therein were not aware of the options to be given, practically gave positive directions which read as under and obviously therefore the State's objections on the ground of delay cannot be sustained.
"15. I have considered the submissions made by learned advocates Mr. Desai. I have also considered the factual aspect in respect to claim of pensionary benefits by the petitioners.
16. Learned Government Pleader Mr. Sunit Shah with learned AGPs appearing on behalf of respondents ? State Authorities submitted that State Government will reconsider the case of petitioners and will also pass appropriate orders within some reasonable time in light of the observations made by the Apex Court as referred above.
17. In this group of petitions, this Court is passing the orders without determination of merits between the parties in respect to claim of pension. The reason behind it is that it is a burden upon the State Government to examine such issue as early as possible in accordance with law. The question is that State Government is not extending the benefit of pension in favour of petitioners and they remained continue as a member in CPF Scheme, however, ultimately, their requests has been rejected only on the ground of which have to shoulder burden of heavy financial liabilities. Therefore, in view of the recent decision of Apex Court in case of Page 17 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024 NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined A.P.S.R.T.C. & Ors. v. G. Srinivas Reddy & Ors. Reported in 2006 AIR SCW 1108 and also in case of Employees State Insurance Corporation v. All India I.T.D.C. Employees Union & Ors. reported in 2006(2) GCD 1430 (SC). This Court has power to direct the respondents ? State Government to reconsider the case of the petitioners in light of the aforesaid background and examine the issue within some reasonable time. It is legal obligation on the part of the State Government to consider such cases of denial of pensionary benefit to the petitioners.
18. In light of the above facts as observed by this Court, it is open for the petitioners to make detailed representation, if they so desire, along with the copy of the aforesaid decision of Apex Court in case of Union of India and Others v. S.L. Verma and Others reported in 2007 (112) FLR 697 to the respondents as early as possible.
19. As and when, the respondents ? State Government received any representation from the petitioners along with the aforesaid decision of the Apex Court, it is directed to the respondents ? State Government to reconsider the matter while examining the earlier representation which has been made by Association and recent one, in light of observations made by the Apex Court in case of Union of India and Others v. S.L. Verma and Others reported in 2007 (112) FLR 697 and pass appropriate reasoned order in accordance with law within a period of four months from the date of receiving the copy of the said order and communicate the same to each petitioner immediately.
20. It is also directed to the State Government to reconsider the matter with sympathetic approach and to consider the sentimental issue for the concerned employees those who are retiring from the service and not able to get pensionary benefits though other similarly situated employees are getting it and enjoying it.
21. In view of above observation and directions, rule is made absolute to the aforesaid extent in each petition with no order as to costs."
(c) Reading of clauses 3, 4 and 6 of the Government Resolution dated 15.10.1984 indicate that the members of the existing staff recruited before 01.04.1982 and those staff who have retired on or after 01.04.1982 and prior to the date of issue of the resolution only have to exercise their option. Those recruited on or after 01.04.1982 shall automatically be governed by the pension scheme of 1984.
In the case of D.S Nakara vs. Union of India reported in (1983) 1 SCC 305, the Apex Court has held that the pension retirees have to be treated as a homogeneous class and that any further classification amongst them would be violative of Article 14 of the Constitution of India. It was further held that the principle that when a certain date or eligibility criteria is selected with reference to legislative or executive measure which has the pernicious tendency of dividing an otherwise homogeneous class and the choice of beneficiaries of the legislative/executive action becomes selective, the division or Page 18 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024 NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined classification made by choice of date or eligibility criteria must have some relation to the objects sought to be achieved. And apart from the first test that the division must be referable to some rational principle, if the choice of the date or classification is wholly unrelated to the objects sought to be achieved, it cannot be upheld on the specious plea that was the choice of the Legislature. In the facts of the present case, it is evident in accordance with the case of D.S. Nakara (supra), that all of them form a homogeneous group who have been working with the institution and therefore it is not fair for the 'State' to discriminate only on the ground of cut off date.
(d) What is evident from the service details of the respondents is that they had two spells of service. The first spell was prior to 01.04.1982 and the second one after 01.04.1982. As far as the first spell is concerned there was only one scheme CPF, therefore there was no question of exercising option. In the second spell, when they joined there was no question of exercising option as the pension scheme was compulsory. They were, to use the words of clause 4 of the resolution, "automatically" governed by the pension scheme as therefore there was no fault, inaction or omission which would disentitle them to claim pension. The disability of filling in the option form or asking for switching over belatedly cannot be held against them.
(e) As held in the case of S.S. Patel (supra) which has received affirmation even by the Apex Court that the two clauses of the Government Resolution dated 15.10.1984 i.e. clauses 4 & 6 respectively cannot be read in isolation of each other, it will not be out of place to repeat the observations of this Court to make that clear.
"16. At the same time the prior to issuance of Government Resolution dated 15.10.1984 which was made effective with retrospective effect from 1.4.1982, employee had no opportunity whatsoever, whether to opt for pension or for any other scheme and such an employee used to be governed by prevailing system of C.P.F.. When the G.R. dated 15.10.1984 came to be issued, the petitioner was serving as a lecturer with S.V.R.College of Engineering and Technology at Surat, which was a Regional Engineering College and later on nomenclatured as National Institute of Technology, the G.R. was not applicable to Engineering College which was under
Government of India. From the record, what appears, the petitioner had continued to be Governed by the existing scheme ?the provident fund for employees of the S.V.R. College of Engineering and Technology (Surat) Society? as per option exercised in 1978. There is no dispute about the amount which was credited in the account of the petitioner, came to be collected and ultimately in year 2000, the petitioner deposited the said amount with interest. After resigning from the S.V.R. College of Engineering, when the petitioner joined as a 'Reader' with South Gujarat University from 31.3.1986 and served upto 5.10.1988, the petitioner was a Recruitee after 1.4.1982 and was being governed automatically for pension scheme as introduced by G.R. dated 15.10.1984 and accordingly no contributory amount was deducted and only G.P.F. account was Page 19 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024 NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined credited. Thus, as a Reader with South Gujarat University, the petitioner was getting benefit of the pension scheme. Even as per the respondents, the period commencing from 31.3.1986 till the date of voluntary retirement on 30.11.2000, the service of the petitioner can be considered for pensionable job. The above fact is admitted in para 10 of the affidavit-in-reply dated 19th December, 2007 filed by Accounts Officer of Commissioner of Higher Education and, therefore, the interpretation of Government Resolution dated 15.10.1984 mainly revolves round Clauses 3, 4, 6 and 7 of the above Government Resolution and to be examined accordingly.
16.1. If the Government Resolution dated 15.10.1984 is perused the preamble of the resolution is pertaining to grant of benefit of pension scheme for the teaching staff in the NonGovernment Affiliated Colleges and in the Universities at par with employees of the Government of Gujarat under Revised Pension Rules, 1950 as amended from time to time. Therefore, if Clause 3 is perused, two types of employees were to exercise option, viz. (1) members of the existing staff recruited before 1.4.1982 and (2) those staff who have retired on or after 1.4.1982 and prior to the date of issue of this resolution within a period of one year from the above date, whether to continue in C.P.F. or to go under the pension scheme and such option was to be final. In Clause 4, it is clearly stated that member of the staff recruited on or after 1st April, 1982 shall automatically be governed by this scheme and such staff will not be allowed to opt for C.P.F. Therefore, if principle of plain reading is applied, all the contents of the clauses read together, what transpires is that the member of the staff recruited on or after 1st April, 1982 was not supposed to exercise an option since he was to be automatically governed by the scheme. So far as the petitioner is concerned, he was recruited directly after the advertisement issued by the concerned Universities on the post of 'Reader' in South Gujarat University on 31.3.1986 to 5.10.1988 and later on appointed in the M.S. University as a 'Reader' from 6.10.1988 after undergoing valid selection procedure. Thus, the case of the petitioner is not governed by Clause 3 of the Government Resolution in view of fact that neither the petitioner is a member of existing staff recruited prior to 1.4.1982 nor he retired from 1.4.1982 to 15.10.1984. Therefore, the contention of learned AGP that the petitioner was to exercise option for pension which was mandatory, cannot be accepted and is hereby rejected.
16.2. So far as width and amplitude of Clause 6 of Government Resolution is concerned, it confers benefits upon an employee of all previous service whether temporary, officiating or permanent either in one or more than one non-government aided Colleges, University, Higher Secondary School who are being paid grant-in-aid from Government shall be taken into account for computing the length of qualifying service for pension under this scheme. If the above clause is made applicable to the petitioner, service rendered in the B.V.M.College of Engineering at Vallabh Vidhyanagar as 'Assistant Lecturer' and even, subsequent service as a 'Lecturer' in the S.V.R. College of Engineering and Technology are to be counted since the above two colleges are recognised colleges and in view of service Page 20 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024 NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined rendered in Non-Government Aided Colleges of the State of Gujarat and Union of India can be considered for qualifying service for pension and calculation of pensionable qualifying service by two offices of respondent Nos. 1 and 5 at the time of accepting application for voluntary retirement of the petitioner was just and proper and cannot be brought within the preview of Rule 41 (1) (a) of the Pension Rules, to deny pension to the petitioner, on the ground that the petitioner had not rendered any service in a pensionable establishment. The fact remains that the petitioner was a member of C.P.F. in both the above colleges and resigned from the service and ceased to be a member of C.P.F. for all purposes. It is very clear from the plain reading of clause 6 that clause 6 does not distinguish employees rendering service in a pensionable or non-pensionable establishment and on the contrary it covers all kinds of services even temporary or officiating rendered in Non-Government Aided Colleges. Even otherwise, no material contrary exist to show that the above two colleges were nonpensionable establishment.
16.3. If the submissions of learned AGP are accepted that to get benefits of clause 6 of G.R. of 15.10.1984, option is to be exercised as per clause 3, provisions of clause 6 will become redundant and inoperative for a recruitee on or after 1.4.1982. Neither clause 4 nor clause 6 envisaged or mandate a recruitee after 1.4.1982 to exercise any option as per clause 3.
It can be safely concluded from the above, that the basic purpose of Clause 6 is to complete minimum years of qualified pension service for all existing and recruited employees before 1.4.1982 and retired between 1.4.1982 to 15.10.1984 and recruited after 1.4.1982, like the petitioner, clause 6 cannot be pressed into service for exercising option for the scheme by both pre and post 1.4.1982 recruitees, otherwise even clause 4 will be rendered nugatory. At the same time, failure to exercise an option on the part of post 1.4.1982 recruitee, making him vulnerable for benefits of previous services as per clause 6, will be against the spirit and object of the scheme and will be creating artificial, arbitrary and discriminatory dividing line amongst university teaching staff not found in clause 6.
16.4. Likewise it was not obligatory at all upon the petitioner to exercise option as per subsequent G.R. 's dated 17.12.1987 and 17.9.1991 in view of the fact that the petitioner was automatically governed by pension scheme by G.R. dated 15.10.1984. At the same time there is no break of service of the petitioner from 22.7.1968 to 30.11.2000 and, therefore, rest of contents of clause 6 are not to be gone into.
16.5. Thus, when clause 6 is unambiguous and benefits of all previous services are not restricted to optee only, no other interpretation is permissible and restricting such benefits to the recruitee like the petitioner pursuant to fresh appointment on or after 1.4.1982 and automatically governed by clause 4 of the G.R., any attempt to add or alter any meaning of any word of phrase of clause 6 would amount giving narrow meaning to clause 6 which is not envisaged at all by the draftsman of the resolution. Therefore, Page 21 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024 NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined the petitioner is entitled for continuity and gets benefit of all previous services rendered in B.V.M. College of Engineering and S.V.R. College of Engineering and Technology and the same is rightly considered by respondents No. 1 and 4 at relevant point of time while granting voluntarily retirement to the petitioner and, therefore, now they cannot be permitted to take another view and they are estopped from doing so. The petitioner has relied and acted on the orders passed by respondents No. 1 and 4 and preponed the date of superannuation now cannot be placed in disadvantageous position on the basis of ipsi-dixi of officers of Respondents No.1 and 4.
16.6. The above fact will be clear if we read Clause 7 in juxtaposition to Clause 4 and 6, which carves out an exception with regard to applicability of general provision of Chapter 11 of B.C.S.R. Volume I in granting retirement benefits in case if a special provisions are made, the above applicability can be kept aside and this pension scheme of G.R. dated 15.10.1984 being a special scheme conferring benefits of pension and retiral dues, will govern the case of the petitioner and the contention of learned AGP about applicability of Rule 41(1) (a) cannot be accepted and is hereby rejected."
(f) Considering the tenor of the word "recruitment" as held in the case of K. Narayan vs. State of Karnataka reported in AIR 1994 SC 55, which according to the dictionary meaning means "enlist", it includes any method of inducting a person in public service. Appointment, selection, promotion, deputation are all well known methods of recruitment.
12. Having perused the facts in the context of the term what is apparent is from the Government Resolutions dated 23.11.1976 and 14.09.1988, the selection is by issuance of a public advertisement. Once a person makes an application, a duly constituted selection committee is formed. Even in the Career Advancement Scheme, the modus is of recruitment. All these aspects were rightly considered in the decision in the case of Dr. S.G. Trivedi (supra) where the Court specifically held that if it is found that respondent no.1 joined services of South Gujarat University only on 01-10-1984 and the earlier services of respondent no.1 cannot be said to have any bearing on question of applicability of the pension scheme pursuant to Government Resolution dated 15-10-1984, his case for receiving pension would get a boost. On the other hand, if it is found that respondent no.1 who had served in private affiliated aided college right from 1964 and switched over to the university services on 01- 10-1984 after tendering technical resignation, joined his duties immediately on the next date in the University Services and that therefore, respondent no.1 should be treated to have been in service prior to 01-04-1982, the State Government would be justified in contending that Tribunal erred in granting pensionary benefits to the respondent no.1.
12.1 In the cases of L.P. Joshi (supra), Banuben Dhakkan (supra), Bhupendra Chudasama (supra) and Uma Chudasama (supra), this Court has reiterated and revisited the entire scheme of the Government Resolution dated 15.10.1984 and in no uncertain terms Page 22 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024 NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined held that if clause no. 3 of the resolution is perused there are two types of employees who have to exercise option namely (a) members of the existing staff recruited before 01.04.1982 (b) Those staff who have retired on or after 01.04.1982 and prior to the issuance of the Government Resolution dated 15.10.1984. it is therefore the relief of option. Once an employee is a recruit post 01.04.1982, he automatically comes over to the pension scheme.
13. The objection of the State therefore that the subsequent decision of the respondents herein to ask for a switch over due to the rise in pension amounts to the revision of pay will also not hold good. Their coming over to pension being automatic, the State is obliged to extend the benefits. Once the learned Single Judge of the judgment under challenge had asked the State to so consider, the State was bound to consider the same positively in light of the directions so issued and not reject the same on the ground of financial implications. In fact, financial burden is no ground to deny benefits arising from the pension rules.
14. It is required to be noted that so far as the teaching staff is concerned, there is no concept of automatic promotion on higher posts on completion of certain number of years. An employee has to acquire educational qualification and put in number of service to secure eligibility criteria for recruitment on higher post. Any appointment either direct or by transfer or by changing the post in the same institute and or in different institute for securing higher post or on a same post made after 1982 is covered under pension scheme - GPF for which option is not to be given as CPF scheme is discontinued with effect from 01.04.1982. It is settled that the employees even though recruited before 01.04.1982 on a given post but subsequently i.e. after 01.04.1982 if they are again recruited after following the procedure prescribed therein, then such employees are not required to give any option to switch over from CPF to GPF because of requirement of clause 4 of the Government Resolution dated 15.10.1984. The said clause 4 at the cost of repetition is reproduced hereinbelow:
"4. The member of the staff recruited on or after 1 st April, 1982 shall automatically be governed by this scheme. Such staff will not be allowed to opt for contributory provident fund scheme."
14.1 Moreover, any recruitment/appointment made after 01.04.1982 for the teaching staff is through advertisement and selection hence it is fresh appointment and therefore pension scheme i.e. GPF is automatically applicable. Further, for the non teaching staff also, their promotion at a particular time is to be considered as recruitment and therefore they need not give the option at the time of promotion. In view of the overall facts of the case we are not inclined to entertain these appeals and therefore the appeals deserve to be dismissed.
15. For the aforesaid reasons, the judgments rendered by the learned Single Judges in the respective Letters Patent Appeals are confirmed. The State authorities are directed to grant the benefit of Page 23 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024 NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined the pension scheme to all the respondents in view of the Government Resolution dated 15.10.1984 from the date of their respective retirement. The respondents who have not refunded/repaid the amount of Contributory Provident Fund, their case be considered by the authorities by paying the amount of pension after adjusting/setting off the amount of Contributory Provident Fund payable by the respondents. In case of the respondents who have refunded/repaid the amount of Contributory Provident Fund, they shall be entitled for interest at the rate of 9% per annum on the amount of pension from the date of their repaying/refunding the amount of Contributory Provident Fund. The respective parties shall act upon these directions and implement the same within 8 weeks from the date of receipt of the writ of the order of this Court. Appeals are accordingly dismissed. Civil Applications also stand disposed of accordingly."
11. The aforesaid judgment rendered by the Hon'ble Division Bench was the subject matter of challenge before the Hon'ble Apex Court being Civil Appeal No. 9018 of 2016, wherein, no interference was called for, by the Hon'ble Apex Court vide order dated 17.12.2021. It is apposite to refer to relevant Para-
3 to 8 of the said order dated 17.12.2021, which reads thus:
"3. A Single judge of the High Court of Gujarat allowed a batch of Special Civil Applications on 3 February 2016, the lead Special Civil Application being No 14953 of 2015. On 1 August 2016, the High Court allowed Special Civil Application No 6317 of 2015. On 29 June 2016, the High Court allowed a third batch of Special Civil Applications, led by Special Civil Application No 3250 of 2009. On 11 July 2017, the High Court allowed a fourth batch of Special Civil Applications with the lead Special Civil Application being No 5006 of 2016. The State of Gujarat preferred Letters Patent Appeals against the judgments of Single Judges in the four batches of Special Civil Applications :
(i) Letter Patent Appeals Nos 258 of 2017, 811 of 2017 and 1357 of 2017;
(ii) Letters Patent Appeal No 2412 of 2017;
(iii) Letters Patent Appeals Nos 94 of 2018, 2180 of 2017, 2291 to 2308 of 2017; and
(iv) Letters Patent Appeal No 2259 of 2017 and Letters Patent Appeals Nos 2260 and 2261 of 2017 with Letters Patent Appeal No 2263 of 2017 to Letters Patent Appeal No 2284 of 2014.Page 24 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024
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4. The Division Bench of the High Court dismissed the Letters Patent Appeals by a judgment dated 2 May 2019.
5. It is common ground that certain Special Leave Petitions have already been dismissed by this Court against the judgment of the Division Bench, namely:
(I) SLP (C) No 9531 of 2015;
(ii) SLP (C) No 10503 of 2015; and
(iii) SLP (C) Nos 7123-7124 of 2016.
6. Of the above batch, it has been stated before this Court that in SLP(C) Nos 7123-7124 of 2016, the question of law was kept open by the order of this Court dated 9 March 2016.
7. The position which emerges is that the judgment of the High Court has attained finality in respect of one batch of pensioners. No distinction exists in fact between the cases of the pensioners who are respondents to the present batch of cases with the pensioners in the earlier batches, who are governed by the orders by which the Special Leave Petitions by the State of Gujarat were dismissed. Consequently, it would be wholly iniquitous to apply a different yardstick to a batch of pensioners who are respondents to these proceedings, when the judgment of the High Court has attained finality in respect of a similar batch of pensioners who are governed by the same judgment. They are receiving pensions.
8. In the above situation, we find no reason to entertain the present Civil Appeals and Special Leave Petitions. The Civil Appeals and the Special Leave Petitions shall stand dismissed. Compliance with the judgment of the High Court be effected within a period of two months from today."
12. The respondent- State preferred Review Petition before the Hon'ble Apex Court, seeking review of the judgment rendered in Civil Appeal No. 9018 of 2016 dated 17.12.2021.
The said Review Petition came to be dismissed, by order dated 12.01.2023, which reads thus:
"1. We have carefully gone through the review petitions and the connected papers. We find no merit in the review petitions and the same are accordingly dismissed.
2. Pending applications, if any, stands disposed of."Page 25 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024
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13. The Hon'ble Apex Court in case of Union of India vs. D.R.R. Sastri, AIR Online 1996 SC 1200, held as under:
"Leave granted.
This appeal by special leave is directed against the order of the Central Administrative Tribunal, Madras dated 23rd September, 1994 in OA No. 1711 of 1993. By the impugned order the Tribunal has directed the appellant to allow the respondent the benefit of option for the pension scheme, on respondent refunding the amount he has recieved on his retirement.
The admitted facts are that the respondent joined the Indian Railways in the year 1950 and while continuing there went on deputation to the Heavy Engineering Corporation during the year 1972. While he was in the railway he had opted for Contributory Provident Fund Scheme. The said respondent exercised his option for permanent absorption in Heavy Engineering Corporation and submitted his resignation from the railways which was accepted by Railway Board and communicated by letter dated 26th June, 1973. In the year 1974 on the basis of recommendations of the Third Pay Commission, liberalised Pension Scheme was introduced and the Railway Board in its letter dated 22nd July, 1974 decided to give an opportunity to all the persons governed by the Provident Fund Scheme to opt for the liberalised Pension Scheme. The Railway Board's letter was communicated to all the General Managers with the direction that it shall be brought to the notice of all retired railway servants. The case of the respondent is that the liberalised Pension Scheme having been introduced at a point of time when he was an employee under the railways, he was entitled to opt for the said scheme. But the aforesaid letter of the Railway Board was not brought to his notice. It is only on 12th June, 1993 the said respondent made a representation requesting the Railway Board that he may be allowed to exercise the option and the Railway Board having rejected the same by its communication dated 13th July, 1993, respondent approached the Tribunal. The Tribunal by the impugned order came to the conclusion that the respondent being in service of the railways on 1st January, 1973 was entitled to exercise option for coming over to the pension scheme in terms of Railway Board's letter dated 23rd July, 1974. The Tribunal further came to the conclusion that notwithstanding the clear statement in the Board's letter that it should be brought to the notice of all the retirees, it had not been brought to the notice of the respondent on account of which he was prevented from exercising his option. The Tribunal also took note of the fact that another railway employee was allowed to exercise the option long after the date of exercising of option has expirted and, therefore, there should be no ground to discriminate the respondent. Challenging the aforesaid direction of the Tribunal the Union of India has come in appeal.
Mr. Mahajan appearing for the appellant contended that the respondent having not exercised his option to opt for the pension Page 26 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024 NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined scheme within the time specified in the Board's letter dated 23rd July, 1974 the Tribunal erred in law granting him the relief in question. The learned counsel, however, was not in a position to indicate any special reason why the similar opportunity had been given to another railway employee which has been noticed by the Tribunal while granting the relief to the respondent. Mr. Mahajan, however, contended that in view of the Constitution Bench's decision or this Court in Krishan Kumar's case [ 1990 (4) SCC 207 ] the impugned direction of the Tribunal cannot be sustained. When this case listed before this Court on 6th May, 1995, it was brought to the notice of the Court that the Government itself has granted a similar benefit to one K.V. Kasthuri by an order dated September 19, 1994, even though he had retired in the year 1973. The Court, therefore, called upon the Union Government to place the necessary material which enabled the Government to grant the relief to Shri Kasthuri and how his case stands on a different footing than the case of the respondent. But no further affidavit was filed by the Union of India nor any material was placed to indicate any distinguishing feature for granting the relief to Shri K.V. Kasthuri and refusing the same to the respondent. Be that as it may when the matter was again argued on 20th August, 1996, it was contended on behalf of the appellant that the respondent having resigned from the railways and having been absorbed by the Heavy X Corporation would be entitled to the benefits available to him under the Heavy Engineering Corporation and the counsel for the appellant also contended that the Heavy Engineering Corporation has already determined the pension of the respondent by taking into account the entire period of service from 1952. In view of the aforesaid submissions of the learned counsel appearing for the appellant the Court had called upon the railway administration to indicate whether the period of service rendered by the respondent from 1950 till July 22, 1972 under the railways was taken into account by the Heavy Engineering Corporation in fixing his pension on his retirement from the service of Heavy Engineering Corporation and whether the propotionality of the period of service from 1950 to July 31, 1972 and from August 1, 1972 till the retirement are separated to compute the pension and if so computed whether the respondent would stand to gain any higher pension than is being acutally drawn. But unfortunately no further affidavit or material was placed by the appellant. On the other hand the respondent has filed an affidavit stating therein that he has not received any pension on his retirement from the Heavy Engineering Corporation as the Corporation itself had no pensionable scheme. In the aforesaid premises and in the absence of any explanation from the appellant to indicate any special feature for granting similar relief as late as in the sear 1994 to Snri K.V. Wasthuri, we see no justification for our interference with the impugned direction of the Tribunal. The respondent had served for about 22 years and he should not be deprived of the pensionary benefit when the Government itself had come forward with the liberalised Pension Scheme and gave option to the persons already retired to come over to the pension scheme. But his pension is to be calculated as on July 31, 1972 in accordance with the Railway Board's letter dated 23rd of July, 1974 and on compliance with all the necessary formalities by the respondent in accordance with the said circular. Subject the circumstance there will be no order as to costs."Page 27 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024
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14. This Court has also perused the list of similarly placed employees of non-teaching staff duly produced at page 3 of the paper book, who have been extended the benefits of the aforesaid Government Resolution dated 14.09.1988 by virtue of the order passed in the list of Special Civil Applications already disposed of considering the judgments passed by the various Benches of this High Court. The name of the beneficiaries of the respondent No.3 - college appears at serial No.521 and 523, page 12, who accorded the benefits of the Government Resolution dated 14.09.1988.
15. At this stage, it is apposite to deal with the decisions relied upon by Ms. Suman Motla, learned AGP appearing for the respondent Nos.1 and 2:
(a) In case of Rajasthan Rajya Vidyut Vitran Nigam Ltd. vs. Dwarka Prasad Koolwal & Ors., reported in AIR 2014 SC 3655.
Relevant paragraphs of the said decision read thus:
"67. When the Pension Regulations and the GPF Regulations are read together, the necessary conclusion is that an employee must give his option for either continuing to be a member of the CPF Scheme or to switch over to the Pension and GPF Regulations. This option has to be exercised within a period of 90 days from the cut-off date, that is, 28th November, 1988. But the RSEB, in its wisdom, chose to extend the time for exercising the switch- over option over a period of 8 years by giving several opportunities to the employees through its notices.Page 28 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024
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68. The right of an employee to switch over was, therefore, limited in time by the Pension and GPF Regulations. However, administrative orders issued by the RSEB from time to time extended the period for exercising the option. No employee had any inherent right to either demand an extension of the period for exercising the switch-over option or claim a right to exercise the switch-over option at any time prior to his retirement, and no such right has been shown to us.
69. But, learned counsel for the respondents finally submitted that pension is not a charity or a bounty and an employee is entitled to earn his pension. There can be no doubt about this proposition but when two schemes are available to an employee, one being the CPF Scheme and the other being the Pension Scheme, it is for the employee to choose the scheme that he feels more comfortable with and appropriate for his purposes. No employee can switch over back and forth from one scheme to another as per his convenience. Once an employee has chosen to be a part of a particular scheme, he continues to remain a member of that scheme unless an option to switch over to another scheme is given to him.
70. Insofar as the present appeals are concerned, the respondents who are members of the CPF Scheme were given several opportunities of switching over to the Pension Scheme and the GPF Scheme under the Pension Regulations and the GPF Regulations respectively but they chose not to do so. The question whether under these circumstances pension is a bounty or a charity becomes completely irrelevant. The entitlement to pension was available to the respondents but they chose not to avail the entitlement for reasons personal to them. Having taken a decision in this regard the respondents cannot now raise an argument of pension not being a bounty and therefore requiring the RSEB to give them another option to switch over to the Pension and GPF Regulations."
(b) In case of Union of India & Ors. vs. M.K. Sarkar, reported in 2010 (2) SCC 59. Relevant paragraphs of the said decision read thus:
"7. When a scheme extending the benefit of option for switchover, stipulates that the benefit will be available only to those who exercise the option within a specified time, the option should obviously be exercised within such time. The option scheme made it clear that no option could be exercised after the last date. In this case, the respondent chose not to exercise the option and continued to remain under the Contributory Provident Fund Scheme, and more important, received the entire PF amount on his retirement. The fact that the respondent was the head of his department and all communications relating to the offer of Eighth Option and the several communications extending the validity period for exercising the option for pension Page 29 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024 NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined scheme, were sent to the heads of the departments for being circulated to all eligible employees/retired employees, is not in dispute. Therefore, the respondent who himself was the head of his department could not feign ignorance of the Eighth Option or the extensions of the validity period of the Eighth Option. In fact, as noticed above, in his application before the Tribunal the respondent refers to all the options. He is careful to say that he was not `intimated' about the contents of the last order relating to extension of the option, but does not say that he was unaware of the order extending the benefit of option. The respondent consciously chose not to exercise the option as he admittedly thought that receiving a substantial amount in a lump sum under the provident fund scheme (which enabled creation of a corpus for investment) was more advantageous than receiving small amounts as monthly pension under the pension scheme. In those days (between 1957 when the pension scheme was introduced and 1976 when the respondent retired) the benefits under the provident fund scheme and pension scheme were more or less equal; and there was a general impression among employees that having regard to average life expectancy and avenues for investment of the lump sum PF amount, it was prudent to receive a large PF amount on retirement rather than receive a small pension for a few years (particularly as there was a ceiling on the pension and as dearness allowance was not included in the pay for computing the pension).
8. From 1980 onwards, gradually the pension scheme became more and more attractive as compared to the Contributory Provident Scheme, on account of various factors, like dearness allowance being included in the pay for computing pension, ceiling on pension being removed and liberalisation of family pension etc. But the respondent was well aware that not having opted for pension scheme and having received the PF amount on retirement, he was not entitled to seek switch over to pension scheme. But in 1996, when the respondent learnt that some others who had retired in and around 1973 to 1976 had been permitted to exercise the option in 1993-94 on the ground that they had not been notified about the option, he decided to take a chance and gave a representation seeking an option to switch over to pension scheme. Having enjoyed the benefits and income from the provident fund amount for more than 22 years, the respondent could not seek switch over to pension scheme which would result in respondent getting in addition to the PF amount already received, a large amount as arrears of pension for 22 years (which will be much more than the provident fund amount that will have to be refunded in the event of switch over) and also monthly pension for the rest of his life. If his request for such belated exercise of option is accepted, the effect would be to permit the respondent to secure the double benefit of both provident fund scheme as also pension scheme, which is unjust and impermissible. The validity period of the option to switch over to pension scheme expired on 31.12.1978 and there was no recurring or continuing cause of action. The respondent's representation dated 8.10.1998 seeking an option to shift to pension scheme with effect from 1976 ought to have been straight away rejected as barred by limitation/delay and laches."Page 30 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024
NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined 15.1 In the facts of the present case, the decisions as relied upon by Ms. Motla, learned AGP, in the opinion of this Court, would not render the petitioner remedy-less because of the delay in selecting the option. The Hon'ble Supreme Court while deciding the issue-in-question, has also confirmed the view of the learned Single Judges and the Hon'ble Division Benches of this High Court. The Hon'ble Division Bench in Letters Patent Appeal No.2259 of 2017 relied upon the ratio laid down in AIR 1999 SC 3601 in case of Ramchandran vs. Govind Ballabh and Ors. wherein, the Hon'ble Supreme Court held that the Tribunal was not justified in holding that the source of appointment of parties to the dispute was either the Central or the State Government or the High Court or the Subordinate Courts. The proper interpretation of the Rule read with Schedule is that all such parties were recruited from the same source i.e. Transfer on deputation/Transfer and possessed requisite qualifications for recruitment to the new service.
15.1.1 The aspect of delay was considered by the Hon'ble Division Bench placing reliance on (2008) 8 SCC 648 in case of Union of India vs. Tarsem Singh, (2016) 13 SCC 797 in case of Asger Ibrahim Amin vs. Life Corporation of India , (2014) 3 SCC Page 31 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024 NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined 617 in case of The Culcutta Port Trust and Ors. vs. Anandi Kumar Das (Capt.) & Ors., 1984 (2) GLR 1111 in case of Union of India vs. Bharat Vijay Mills Co.Ltd. , (2006) 12 SCC 53 in case of Union of India & Ors. vs. S.L. Verma & Ors. , AIR 1999 SC 55 in case of K. Narayanan vs. State of Karnataka and (1997) 1 SCC 514 in case of Union of India & Ors. vs. D.R.R. Sastri.
In all the aforesaid judgments, the Hon'ble Apex Court held that in the cases of continuing or successive wrongs, delay and laches or limitation will not thwart the claim so long as the claim, if allowed, does not have any adverse repercussions on the settled third-party rights.
15.2 So far as the contention raised by Ms. Motla, learned AGP, with regard to the parity claimed by the petitioner herein that the decision rendered Special Civil Application No.3250 of 2009 is not covered by the judgment delivered in the Letters Patent Appeal No.2259 of 2017 and allied matters is concerned, this Court has perused that the order passed in Special Civil Application No.3250 of 2009 was subject matter of appeal by preferring Letters Patent Appeal No.94 of 2018 and the same forms a part of the common order passed by the Hon'ble Division Bench in the aforesaid Letters Patent Appeal Page 32 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024 NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined No.2259 of 2017.
16. In light of the aforesaid, the petitioner herein is seeking the benefit of the pension scheme and having applied for the same as back as in the year 2018 at par with similarly situated employees and in line with the ratio laid down in Union of India vs. D.R.R. Sastri; the same having been followed and considered in Special Civil Application No.3250 of 2009. The Hon'ble Division Bench in Letters Patent Appeal No.94 of 2018 held that delay cannot be a reason not to consider the case of a persons/employees seeking benefits of the scheme which was floated for the benefits of the employees. Further, the said application seeking the benefit of Government Resolution dated 14.09.1988 is dated 05.02.2018; which is also prior to the superannuation of the petitioner. The benefit of the Government Resolution dated 14.09.1988 are extended to the superannuated employees also and in view thereof, the question of delay would not arise.
17. In light of the aforesaid, this Court is inclined to pass the following order:
A. The respondent authority to call for service record of the petitioner upon receipt of this order. The Page 33 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024 NEUTRAL CITATION C/SCA/20714/2018 JUDGMENT DATED: 11/07/2024 undefined respondent No.3 - college to supply the service record/details to the respondent authorities within a period of two weeks thereafter.
B. The respondent authority to consider the case of the petitioner for grant of benefits of the pension scheme in view of the Government Resolution dated 14.09.1988 within a period of four weeks from the date of receipt of the service record/details of the petitioner.
C. The aforesaid exercise having been concluded, the petitioner to refund the CPF amount to the respondent authority to avail the benefit of the pension scheme in accordance with law or the authorities shall pay the amount of pension after adjusting/setting off the amount of CPF; payable by the petitioner.
D. The representation produced at Annexure - D be considered at the time of considering the case of the petitioner.
18. With the aforesaid directions, the present petition is allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent.
(VAIBHAVI D. NANAVATI,J) NEHA Page 34 of 34 Downloaded on : Fri Jul 26 21:30:00 IST 2024