Gujarat High Court
Patel Amrutlal Ravabhai vs Gujarat Water Supply Sewarage Board on 11 February, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/13400/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13400 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 13401 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 13403 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 13417 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 13688 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 13705 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 16729 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 16781 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 19052 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 19472 of 2018
With
R/SPECIAL CIVIL APPLICATION NO. 7200 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 10338 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 13264 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 13901 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 13902 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 15697 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 15698 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 16610 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 18977 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 22339 of 2019
FOR APPROVAL AND SIGNATURE:
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C/SCA/13400/2018 JUDGMENT
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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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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PATEL AMRUTLAL RAVABHAI & 56 other(s)
Versus
GUJARAT WATER SUPPLY SEWARAGE BOARD
==========================================================
Appearance:
MR JV JAPEE(358) ADVOCATE for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,
33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,52,53,54,55,5
6,57,6,7,8,9
MR HS MUNSHAW(495) ADVOCATE for the Respondent(s) No. 1 in Special
Civil Application Nos.13400, 13401, 13705, 16729 and 19052 of 2018;
Special Civil Application Nos.7200, 13264, 15698, 16610, 18977 and 22339
of 2019
RC JANI & ASSOCIATE ADVOCATE for the Respondent(s) No. 1 in Special
Civil Application Nos.13403, 13417, 13688 and 16781 of 2018
MR.PREMAL R. JOSHI ADVOCATE for the Respondent(s) No. 1 in Special
Civil Application Nos.19472 of 2018 and 10338 of 2019
MR.HAMESH C, NAIDU, ADVOCATE for the Respondent(s) No. 1 in Special
Civil Application Nos.13901 and 13902 OF 2019
MR.MEHUL RATHOD, ADVOCATE for the Respondent(s) No. 1 in Special
Civil Application Nos.15697 OF 2019
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 11/02/2020
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C/SCA/13400/2018 JUDGMENT
COMMON ORAL JUDGMENT
1. In all these petitions under Article 226 of the Constitution of India, the petitioners who were in service with the Gujarat Water Supply and Sewerage Board and Gujarat Water Resources Development Corporation, have come up with identical/similar prayers.
2. For the purposes of brevity, prayers of Special Civil Application No.13400 of 2018 are reproduced herein below:
"15(A) YOUR LORDSHIPS may be pleased to issue the writ of mandamus or any other appropriate writ, order or direction and be pleased to direct the respondent to implement the Employees' Pension Scheme - 1995 and be pleased to direct the respondent to take appropriate steps to grant pensionary benefits to the petitioners from the date of their retirement by permitting them to switch over from CPF scheme to the pension scheme on condition to deposit amounts received towards employer's share under CPF scheme.
15AA YOUR LORDSHIPS be pleased to issue the writ of mandamus or any other appropriate writ, order or direction and be pleased to direct the respondent Board to grant the pensionary benefits to the petitioners at par with an in accordance with the pensionary benefits given to the employees of the Central Government and State Government as per the recommendations of various central pay commissions including the office memorandum dated 01.05.1987 issued by the Government of India as applicable to the employees of the State Government and also the employees of various boards and corporations of the State Government."
3. Facts in brief are that all the petitioners were working on different posts either under the Gujarat Water Supply and Sewerage Board or under the Gujarat Water Resources Development Corporation. They were appointed on different Page 3 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT dates ranging from years 1979-80 to 1985-86. They retired from service in the years 2013 to 2018. All of them were directly recruited by the respective Boards/Corporations.
4. The petitioners were covered under the CPF Scheme. It is their case in the petition that at no point of time were they given options or choice to switch over to the pension scheme which was far more advantageous than the CPF scheme. It is their case that the State Government employees who were transferred to such Boards/Corporations were continued under the pension scheme, hence the petitioners' case is that they are discriminated.
5. After retirement, the petitioners made representation to the Board/Corporation requesting their employer that they be given the benefit of opting for pension as they were willing to refund their CPF benefits. However, their representations were rejected on the ground that when such petitioners were appointed, they had with open eyes accepted to join the CPF scheme. There was no pension scheme and the request was so made more than 30 years after having accepted to be governed by the CPF scheme and then after retirement turned around to be given the benefit of the pension scheme.
6. Mr.J.V.Japee learned advocate has appeared for the petitioners and made the following submissions:
I. The petitioners have suffered serious and substantial prejudice on account of being deprived of the benefits of pension scheme. The net lump-sum CPF contribution received after retirement, even if invested, would yield a very low Page 4 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT return at the current rates of interest, which would be highly insufficient to meet with the bare minimum expenses. The petitioners have to virtually struggle for survival with no financial security to which they are entitled to after rendering a long tenure of service. For instance, the petitioner No.1 Patel Amrutbhai Revabhai who was the deputy engineer Class 2, had received after retirement the lump-sum amount under CPF scheme Rs. 16,38,806/-. If the said amount is invested in FD with the bank, he will get Rs. 10925/- per month at 8% interest. If the said employee was granted pensionary benefits, he would get approximately Rs.46000/- per month. It is difficult to survive on the interest received from the investment of the lump-sum amount received under the CPF scheme. The survival will be virtually a struggle. If the said employee was not wrongfully deprived of the pensionary benefits, he would be living a very decent and comfortable life.
Most of the employees of the State Government and Central Government and also the boards and corporations, who are getting pensionary benefits or were allowed to switch over to the pension scheme, are living a very decent and comfortable life. A small unfortunate lot of the employees of the state covered under the CPF scheme and were never given option to switch over to the pension scheme, have to virtually struggle for survival with no financial security to which they are entitled to after spending their life for the service of the state. Why such a discrimination in the two sets of employees of the State? There cannot be a more blatant violation of Articles 14 and 16 of the Constitution of India than this.Page 5 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020
C/SCA/13400/2018 JUDGMENT II. The petitioners were wrongfully deprived of the benefits
under the pension scheme on the following grounds.
A. The 4th Central Pay Commission had recommended that all CPF beneficiaries in service on January 1, 1986 should be deemed to have come over to the pension scheme on that date unless they specifically opt out to continue under the CPF scheme. (Para 1 of Office Memorandum dated 1st May, 1987 page 153/C).
B. As per the aforesaid recommendation of the 4th Central Pay Commission, in most of the government organizations across the country whereever the CPF scheme was applicable, the options were given to switch over to the pension scheme.
C. The Central Government had issued an office memorandum dated 01.05.1987 for change over of the Central Government employees from CPF scheme to pension scheme. (Page 153/C). It is pertinent to note that the copy of the said office memorandum containing the option form was sent to finance secretaries of all states and U.T.s. (Page 153/F). It was the endeavor of the Central Government, in view of the recommendations of the 4th Central Pay Commission, to do away with the CPF scheme and apply pension scheme wherever the CPF scheme was in force by giving the option.
III. The State Government has issued a Government Resolution dated 04.05.2002 (Page No.153A) to apply the Page 6 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT recommendations of 4th and 5th Central Pay Commission to the employees of the State Government as well as the employees of the public sector undertakings of the State Government. Therefore, the recommendations of 4th Central Pay Commission for change over from CPF scheme to pension scheme apply to the employees of the State Government as well as the public sector undertakings of the State Government which include the boards and corporations.
IV. The State Government has issued a Government Resolution dated 07.01.1998 to apply the recommendations of 5th Central Pay Commission to the employees of the State Government. (Page 153/G).
In para No. 3 of the said GR, (page 153/G), it is stated that in the matter of service conditions, the state government generally follows the central government.
In clause 6 of the said GR,(Page No. 153/J), all the employees retiring after 01.01.1996 will get all the retirement benefits as per the policy of the central government. Since the central government, has already applied the pension scheme by virtually dispensing with the CPF scheme as per the recommendations of 4th central pay commission, the employees of the state government will be entitled to all the retirement benefits as per the employees of the central government.
The board has by passing the resolution number BM/175/8 dated 11.02.1998, adopted the recommendations of 5th Central pay commission. The resolution dated 11.02.1998 Page 7 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT is annexed herewith. Therefore, the board is under obligation to give the retirement benefits as per the policy of the central government as adopted by the state government vide the aforesaid GR dated 07.01.1998. The employees of the board are therefore entitled to the benefit of the pension scheme.
It is pertinent to note that as per clause 7 of the GR dated
07.01.1998, (Page 157/J) the benefit of leave encashment is cancelled. In view of the said provision, the benefit of leave encashment of the employees of the board is also cancelled. Therefore, when the GR dated 07.01.1998 is applied to the employees of the board in the matter of leave encashment, the same would equally apply for the retirement benefits as per clause 6 of the said GR.
V. The state government has issued the GR dated 15.10.2016 to grant the benefit of revised pension as per the recommendations of the 7th central pay commission.
VI. It is submitted that the employees of about 81 boards, corporations and municipalities are getting the pensionary benefits. (The list is on page number 136).
VII. The employees of the Municipalities appointed after 1963 are granted the pensionary benefits.( Page 138). From the perusal of the aforesaid GRs issued by the state government and the office memorandum dated 01.05.1987 issued by the central government, it is clear that the petitioners who are the employees of the board are wrongfully deprived of the pensionary benefits. They have never been given an option to switch over to the pension scheme contrary Page 8 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT to the recommendations of 4th Central Pay Commission adopted by the state government for the employees of the state government as well as the employees of the public sector undertakings of the state government. Even as per the recommendations of 5th Central Pay Commission, the state government was under obligation to grant the retirement benefits to the employees of the board as per the policy of the central government. The employees of the boards and corporations are accordingly wrongfully deprived of the benefits of pension to which they were entitled to, resulting into a grave injustice to them.
VIII. In almost all the organizations across the country where the CPF scheme was in force, the employees were given the benefits to switch over to the pension scheme. The petitioners who are employees of the board are an unfortunate lot being deprived of the pensionary benefits resulting into a struggle for survival for them in the fag end of their life.
IX. Deprivation of pension is a continuing wrong. Since the employees of the board were never given the option to switch over to the pension scheme and they were unilaterally covered and continued under the CPF scheme, they were not aware about their entitlement for the benefit of pension scheme. When they became aware, they had made representations from time to time. (Page 147 and page 86E). After retirement, they had actually experienced the grave prejudice suffered by them on account of the deprivation of the pensionary benefits. They are finding it extremely difficult to survive on the income of interest received from the investment of the CPF amount.
Page 9 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020C/SCA/13400/2018 JUDGMENT X. They have also come to know that this Honourable Court has rendered several decisions recently wherein the
petitioners who were all throughout covered under CPF scheme and who had received lump sum amount under CPF scheme after retirement, were granted the benefit of pension scheme on condition to adjust the amount received under CPF scheme. This Honourable court was satisfied on the facts of those cases that the concerned petitioners were wrongly deprived of the pensionary benefits and therefore the benefits are given to them. The present petitioners therefore have prayed to grant the pensionary benefits to them on condition to adjust the amounts received under CPF scheme in case the Honourable court is satisfied that the present petitioners are wrongfully deprived of the pensionary benefits in the light of the factual and legal position narrated in the foregoing paragraphs.
7. In support of his submissions, Mr.J.V.Japee relied upon the following decisions:
I. In case of Navnitbhai C. Inamdar v. Chairman, Governing Body, passed in Special Civil Application No.13978 of 2017 II. In case of Cost of Cultivation Scheme Staff Association v. Chairman-Governing Body/Vice Chancellor passed in Special Civil Application No.25157 of 2007 III. Judgement of the Hon'ble Supreme Court passed in Civil Appeal Nos.8183, 8184 and 8195 of 2015 and 8196 of 2013 Page 10 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT IV. In case of Patel Mathurbhai Gopalbhai & 536 v. State of Gujarat & Ors., passed in Special Civil Application No.3250 of 2009 and allied matters V. In case of Union of India and Anr v. S.L.Verma and others reported in (2006) 12 SCC 53 VI. In case of Mrs.Veena Mangal Nath & Ors v. University of Delhi & Ors passed in WP(C) 105 of 2012 VII. Letters Patent Appeal No.2259 of 2017 and allied matters reported in 2019(0) AIJEL-HC 240605
8. Respective advocates appearing for the Board and the Corporation have made the following submissions based on the affidavit in reply filed by them:
(I) That the petitioners were serving with the Board/Corporation and through out their service career they were members of Contributory Provident Fund Scheme right from the date of joining service till their retirement.
(II) Right from inception, the Board has implemented the Contributory Provident Fund Scheme. The pension scheme was meant for government employees and was never implemented by the Board and therefore there was no question of opening the GPF account.
(III) The petitioners were fully aware and accepted the service conditions and after retirement have approached this Page 11 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT Court particularly after accepting the CPF scheme and in some cases having withdrawn CPF amounts during their service.
(IV) Instructions were issued in 1984 that only Contributory Provident Fund Scheme is applicable. Decisions have been relied upon in support of their submissions to submit that no switch over is possible now at a belated stage.
I. In the case of PEPSU RTC v. Amandeep Singh reported in 2017 (2) SCC-766 II. In the case of Rajasthan Rajya Vidyut Vitran Nigam Ltd. v. Dwarka Prasad Koolwal reported in 2015 (12) SCC 51 III. In the case of National Council of Educational Research and Training v. Shyam Babu Maheshwari and others reported in 2011 (6) SCC 412 IV. In the case of Union of India and others v. M. K. Sarkar reported in 2010 (2) SCC 59 V. In the case of Prof. A.K. Sharma & Ors. v. U.O.I. & Anr. passed in WP(C) No.842 of 2003 VI. In the case of Union of India v. International Trading Company reported in 1990 (4) SCC 207 VII. In the case of Mitthan Lal Gupta v. The Board of Secondary Education Ajmer & Anr. passed in S.B. Civil Page 12 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT Writ Petition No.3297 of 1998
9. From the perusal of service details of the petitioners what is evident is that all the petitioners while joining service, accepted their appointments wherein it was clearly known to them that there was no pension scheme or that there were no resolutions in force giving them the benefit of an option to switch over to the pension scheme. Right through their tenure of service and till they retired they were governed under the CPF scheme. The petitioners accepted the benefits under the CPF scheme on retirement and more than 5 to 7 years after their retirement have raised a plea of being denied the benefit of being given the option of pension.
10. In the case of Krishena Kumar v. Union of India and others reported in (1990) 4 SCC 207, the case before the Supreme Court was of retired Railway Employees who were covered by or had opted for Railway Contributory Provident Fund Scheme were prompted to approach the Court for a prayer to be given an option to switch over to the pension scheme on the ground that they were already retired but then had no idea that the liberalized pension schemes and the future improvements were more beneficial. Reliance was sought from the Supreme Court decision in the case of D.S.Nakara v. Union of India reported in (1983) 1 SCC 305 on the ground of discontinuation that notifications were issued giving cut off dates and such prescriptions violated Article 14 of the Constitution of India. The Supreme Court extensively considered the decision in D.S.Nakara's case and held as under:
"17. Admittedly, the entire case of the petitioners is Page 13 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT sought to be based on the decision in Nakara's case. Mr. Kapil Sibal submits that the petitioners' basic assumption is erroneous inasmuch as Nakara's case did not hold that when- ever there was a liberalisation of pension all other pension retirees and P.F. retirees must be given option and that the older system of pension or Provident Fund was always insufficient. According to counsel the only question decided in Nakara can be gathered from the following paragraph of the report at page 172:
"Do pensioners entitled to receive superannuation or retiring pension under Central Civil Services (Pension) Rules, 1972 (' 1972 Rules' for short) form a class as a whole? Is the date of retirement a relevant consideration for eligibility when a revised formula for computation of pension is ushered in and made effective from a specified date? Would differential treatment to pensioners related to the date of retirement qua the revised formula for computation of pension attract Article 14 of the Constitution and the element of discrimination liable to be declared unconstitutional as being violative of Art. 14?"
18. The basic question of law that has to be decided, therefore, is what was the ratio decidendi in Nakara's case and how far that would 374 be applicable to the case of the P.F. retirees.
19. The doctrine of precedent, that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it. It does not mean that this Court is bound by the various reasons given in support of it, especially when they contain "propositions wider than the case itself required." This was what Lord Selborne said in Caledonian Railway Co. v. Walker's Trustees and Lord Halsbury in Quinn v. Leathem, [1981] A.C. 495, (502). Sir Frederick Pollock has also said: "Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given, Page 14 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT but only to the principles accepted and applied as necessary grounds of the decision."
20. In other words, the enunciation of the reason or principle upon which a question before a court has been decided is along binding as a precedent. The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre- existing rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it. In the words of Halsbury, 4th Edn., Vol. 26, para 573:
"The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which when it is clear it is not part of a tribunal's duty to spell out with difficulty a ratio decidendi in order to bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi."
21. The question then is, has the court said in Nakara that what was applicable to pensioners vis-a- vis liberalisation of pension was to be equally applicable to P.F. retirees? In Nakara's case petitioners 1 and 375 2 were retired pensioners of the Central Government, the first being a civil servant and the second being a member of the service personnel of the Armed Forces. The third Page 15 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT petitioner was a society registered under the Societies Registration Act, 1860, formed to ventilate the legitimate public problems and was espousing the cause of the pensioners all over the country. The first petitioner retired in 1972 and on computation, his pension worked out at Rs.675 per month and with dearness allowance he was drawing monthly pension of Rs.935. The second petitioner retired at or about that time and at the relevant time was in receipt of a pension plus dearness relief of Rs .981.
22. The Union of India had been revising and liberalising the pension rules from time to time. The Central Government servants on retirement from service were entitled to receive pension under the Central Civil Services (Pension) Rules, 1972. Successive Central Pay Commissions recommended enhancement of pension in different ways. The first Central Pay Commission (1946-47) recommended raising of the retirement age to 58 years and the scale of pension to 1/80 of the emoluments of each year of service subject to a limit 35/80 with a ceiling of Rs.8,000 per year for 35 years of service. The Second Central Pay Commission (1957-58) did not recommend any increase in the non-contributory retirement benefits. The Administrative Reforms Commissioner (ARC) 1956 took note of the fact that the cost of living had shot up and correspondingly the possibility of savings had gone down and accordingly recommended that the quantum of pension may be raised to 3/6 of the emoluments of the last three years of service from existing 3/8 and the ceiling to be raised from Rs.675 per month to Rs. 1,000 per month. Before the Government acted upon it, the Third Central Pay Commission did not examine the question of relief to pensioners because of its terms and recommended no change in the pension formula except that the existing ceiling to be raised from Rs.675 to Rs. 1,000 per month and the maximum gratuity should be raised from Rs.24,000 to Rs.30,000.
23. On May 25, 1979, Government of India, Ministry of Finance, issued Office Memorandum No. Page 16 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT F-19(3)-EV-79 whereby the formula for computation of pension was liberalised but made it applicable. to Government servants who were in service on March 31, 1979 and retired from service on or after that date. The formula introduced a slab system for computation of pension which was applicable to employees governed by the 1972 rules retiring on or after the specified date. The pension for the service personnel which would include Army, Navy and Air Force staff was governed by the relevant regulations. By 376 the Memorandum of the Ministry of Defence bearing No. B/40725/ AG/PS4- C/1816/AD (Pension)/Services dated September 28, 1979, the liberalised pension formula introduced for the government servants governed by the 1972 rules was extended to the armed forces personnel subject to the limitations set out in the memorandum with a condition that the new rules of pension would be effective from April 1, 1979 and may be applicable to all service officers who become/ became non- effective on or after that date. This liberalised 'pension formula was to be applicable prospectively to those who retired on or after March 31, 1979 in case of government servants governed by 1972 rules and in respect of defence personnel those who became/become non-effective on or after April 1, 1979. Consequently those who retired prior to -the specified date would not be entitled to the benefits of the liberalised pension formula.
24. On the above facts the petitioners' therein contended that this Court would consider the raison d'etre for payment of pension, namely, whether it was paid for past satisfactory service rendered, and to avoid destitution in old age as well as a social welfare or socioeconomic justice measure, the differential treatment for those who retired prior to a certain date and those retiring subsequently, the choice of the date being wholly arbitrary would amount to discrimination and violative of Art. 14; and whether the classification based on fortuitous circumstance of retirement before or subsequent to a date, fixing of which was not shown to be related to any rational principle, would be equally violative of Art. 14. It was contended that pensioners of the Page 17 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT Central Government formed a class for the purpose of pensionary benefits and there could not be mini- classification within the class designated as pensioners.
25. The Court considered the nature and purposes of pension in the context of a welfare State and found that though unquestionably pension was linked to length of service and the last pay drawn which did not imply the pay on the last day of retirement but average emoluments of 36 months service which under the liberalised scheme was reduced to aver- age emoluments of 10 months preceding the date which was expected to be higher than that of the higher average emoluments of 36 months, coupled with the slab system for computation amounted to liberalisation of pension in different ways. If the pensioners who retired prior to the specified date had to earn pension on the average emoluments of 36 months' salary just preceding the date of retirement, naturally the average would be lower and they would be doubly hit because the slab system newly introduced was not avail- able to them 377 while the ceiling was at a lower level and thus they would suffer "triple jeopardy, viz., lower average emoluments, absence of slab system and lower ceiling." This Court, therefore, wanted to know what was the purpose in prescribing the specified date vertically dividing the pensioners between those who retired prior to the specified date and those who retired subsequent to that date and why was the pension scheme liberalised. Receiving no satisfactory reply the Court observed:
"Both the impugned memoranda do not spell out the raison d'etre for liberalising the pension formula. In the affidavit in opposition by Shri S.N. Mathut, it has been stated that the liberalisation of pension of retiring Government servants was decided by the Government in view of the persistent demand of the Central Government employees represented in the scheme of Joint Consultative Machinery. This would clearly imply that the pre-liberalised pension Page 18 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT scheme did not provide adequate protection in old age and that a further liberalisation was necessary as a measure of economic security. When Government favorably responded to the demand it thereby ipso facto conceded that there was a larger available national cake part of which could be utilised for providing higher security to erstwhile government servants who would retire. The Government also took note of the fact that Continuous upward movement of the cost of living index as a sequel of inflationary inputs and diminishing purchasing power of rupee necessitated upward revision of pension. If this be the underlying intendment of liberalisation of pension scheme, can any one be bold enough to assert that it was good enough only for those who would retire subsequent to the specified date but those who had already retired did not suffer the pangs of rising prices and falling purchasing power of the rupee?"
26. The Court then proceeded to examine whether there was any rationale behind the eligibility qualification and finding no rationale concluded:
"Therefore, this division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed, it would be discriminatory."
27. The Court accordingly concluded that the division was thus arbitrary and unprincipled and therefore the classification did not stand the test of Art. 14. It was also arbitrary as the Court did not find a single acceptable or persuasive reason for this division and this arbitrary action violated the guarantee of Art. 14. The Court observed that the pension scheme including the liberalised scheme to the Government employees was non-contributory in' character. The payment of pension was a statutory Page 19 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT liability undertaken by the Government and whatever became due and payable was 2budgeted for. The Court specifically observed:
"One could have appreciated this line of reasoning where there is a contributory scheme and a pension fund from which alone pension is disbursed. That being not the case, there is no question of pensioners dividing the pension fund which, if more persons are admitted to the scheme, would pro rata affect the share. Therefore, there is no question of dividing the pension fund. Pension is a liability incurred and has to be provided for in the budget."
28. The Court further observed:
"If from the impugned memoranda the event of being in service and retiring subsequent to specified date is served, all pensioners would be governed by the liberalised pension scheme. The pension will have to be recomputed in accordance with the provisions of the liberalised pension scheme as salaries were required to be recomputed in accordance with the recommendation of the Third Pay Commission but becoming operative from the specified date. It does therefore appear that the reading down of impugned memoranda by severing the objectionable portion would not render the liberalised pension scheme vague, unenforceable or unworkable."
29. The Court in Nakara was not satisfied with the explanation that the legislation had defined the class with clarity and precision and it would not be the function of this Court to enlarge the class. The Court held in paragraph 65 of the report:
"With the expanding horizons of socio- economic justice, the Socialist Republic and welfare State which we endeavour to set up and largely influenced by the fact that 379 the old men who retired when emoluments were comparatively low and are exposed to Page 20 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT vagaries of continuously rising prices, the falling value of the rupee consequent upon inflationary inputs, we are satisfied that by introducing an arbitrary eligibility criterion:
'being in service and retiring subsequent to the specified date' for being eligible for the liberalised pension scheme and thereby dividing a homogeneous class, the classification being not based on any discernible rational principle and having been found wholly unrelated to the objects sought to be achieved by grant of liberalised pension and the eligibility criteria devised being thoroughly arbitrary, we are of the view that the eligibility for liberalised pension scheme of 'being in service on the specified date and retiring subsequent to that date' in impugned memoranda, Exs. P-1 and P-2, violates Article 14 and is unconstitutional and is struck down. Both the memoranda shall be enforced and implemented as read down as under: In other words, Ex. P-1, the words: 'that in respect of the government servants who were in service on March 31, 1979 and retiring from service on or after that date'; and in Ex. P-2, the words: 'the new rates of pension are effective from April 1, 1979 and will be applicable to all service officers who became/become non-effective on or after that date' are unconstitutional and are struck down with this specification that the date mentioned therein will be relevant as being one from which the liberalised pension scheme becomes operative to all pensioners governed by 1972 Rules irrespective of the date of retirement. Omitting the unconstitutional part it is declared that all pensioners governed by the 1972 Rules and Army Pension Regulations shall be entitled to pension as computed under the liberalised pension scheme from the specified date, irrespective of the date of retirement. Arrears of pension prior to the specified date as per fresh computation is not admissible."
30. Thus the Court treated the pension retirees only as a homogeneous class. The P.F. retirees were Page 21 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT not in mind. The Court also clearly observed that while so reading down it was not dealing with any fund 380 and there was no question of the same cake being divided amongst larger number of the pensioners than would have been under the notification with respect to the specified date. All the pensioners governed by the 1972 Rules were treated as a class because payment of pension was a continuing obligation on the part of the State till the death of each of the pensioners and, unlike the case of Contributory Provident Fund, there was no question of a fund in liberalising pension.
31. The argument of Mr. Shanti Bhushan is that the State's obligation towards pension retirees is the same as that towards P.F. retirees. That may be morally so. But that was not the ratio decidendi of Nakara. Legislation has not said so. To say so legally would amount to legislation by enlarging the circumference of the obligation and converting a moral obligation into a legal obligation. It reminds us of the distinction between law and morality and limits which separate morals from legislation. Bentham in his Theory of Legislation, Chapter XII, page 60 said:
"Morality in general is the art of directing the actions of men in such a way as to produce the greatest possible sum of good. Legislation ought to have precisely the same object. But although these two arts, or rather sciences, have the same end, they differ greatly in extent. All actions, whether public or private, fall under the jurisdiction of morals. It is a guide which leads the individual, as it were, by the hand through all the details of his life, all his relations with his fellows. Legislation cannot do this; and, if it could, it ought not to exercise a continual interference and dictation over the conduct of men. Morality commands each individual to do all that is advantageous to the community, his own personal advantage included. But there are many acts useful to the community which legislation ought not to command. There are also many injurious actions which it ought not to forbid, Page 22 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT although morality does so. In a word legislation has the same centre with morals, but it has not the same circumference."
32. In Nakara it was never held that both the pension retirees and the P.F. retirees formed a homogeneous class and that any further classification among them would be violative of Art.
14. On the other hand the Court clearly ob- served that it was not dealing with the problem of a "fund". The Railway Contributory Provident Fund is by 381 definition a fund. Besides, the Government's obligation towards an employee under C.P.F. Scheme to give the matching contribution begins as soon as his account is opened and ends with his retirement when his rights qua the Government in respect of the Provident Fund is finally crystallized and thereafter no statutory obligation continues. Whether there still remained a moral obligation is a different matter. On the other hand under the Pension Scheme the Government's obligation does not begin until the employee retires when only it begins and it continues till the death of the employee. Thus, on the retirement of an employee Government's legal obligation under the Provident Fund account ends while under the Pension Scheme it begins. The rules governing the Provident Fund and its contribution are entirely different from the rules governing pension. It would not, therefore, be reasonable to argue that what is applicable to the pension retirees must also equally be applicable to P.F. retirees. This being the legal position the rights of each individual P.F. retiree finally crystallized on his retirement whereafter no continuing obligation remained while on the other hand, as regards Pension retirees, the obligation continued till their death. The continuing obligation of the State in respect of pension retirees is adversely affected by fall in rupee value and rising prices which, considering the corpus already received by the P.F. retirees they would not be so adversely affected ipso facto. It cannot, there- fore, be said that it was the ratio decidendi in Nakara that the State's obligation towards its P.F. retirees must be the same as that towards the pension retirees An imaginary definition Page 23 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT of obligation to include all the Government retirees in a class was 'not decided and could not form the basis for any classification for the purpose of this case. Nakara cannot, therefore, be an authority for this case.
33. Stare decisis et non guieta movere. To adhere to precedent and not to unsettle things which are settled. But it applies to litigated facts and necessarily decided questions. Apart from Art. 141 of the Constitution of India, the policy of courts is to stand by precedent and not to disturb settled point. When court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and apply it to all future cases where facts are substantially the same. A deliberate and solemn decision of court made after argument on question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same court, or in other courts of equal or lower rank in subsequent cases where the very point is again in controversy unless there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injustice. It should be invariably applied 382 and should not ordinarily be departed from where decision is of long standing and rights have been acquired under it, unless considerations of public policy demand it. But in Nakara it was never required to be decided that all the retirees formed a class and no further classification was permissible.
34. The next argument of the petitioners is that the option given to the P.F. employees to switch over to the pension scheme with effect from a specified cut- off date is bad as violative of Art. 14 of the Constitution for the same reasons for which in Nakara the notification were read down. We have extracted the 12th option letter. This argument is fallacious in view of the fact that while in case of pension retirees who are alive the Government has a continuing obligation and if one is affected by dearness the others may also be similarly affected. In case of P.F. retirees each one's rights having Page 24 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT finally crystallized on the date of retirement and receipt of P.F. benefits and there being no continuing obligation thereafter they could not be treated at par with the living pensioners. How the corpus after retirement of a P.F. retiree was affected or benefited by prices and interest rise was not kept any track of by the Railways. It appears in each of the cases of option the specified date bore a definite nexus to the objects sought to be achieved by giving of the option. Option once exercised was told to have been final. Options were exercisable vice versa. It is clarified by Mr. Kapil Sibal that the specified date has been fixed in relation to the reason for giving the option and only the employees who retired after the specified date and before and after the date of notification were made eligible. This submission appears to have been substantiated by what has been stated by the successive Pay Commissions. It would also appear that corresponding concomitant benefits were also granted to the Provident Fund holders. There was, therefore, no discrimination and the question of striking down or reading down clause 3.1 of the 12th Option does not arise."
11. In the case of Union of India and others v. M. K. Sarkar reported in (2010) 2 SCC 59, the Supreme Court extensively relied on the decision in the case of Krishena Kumar (supra) as under:
"13. 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 Page 25 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT 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.
14. The order of the Tribunal allowing the first application of respondent without examining the merits, and directing appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. The ill-effects of such directions have been considered by this Court in C. Jacob vs. Director of Geology and Mining & Anr. - 2009 (10) SCC 115 :
"9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any `decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to `consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to `consider'. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored."Page 26 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020
C/SCA/13400/2018 JUDGMENT
15. When a belated representation in regard to a `stale' or `dead' issue/dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do so, the date of such decision can not be considered as furnishing a fresh cause of action for reviving the `dead' issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.
16. A Court or Tribunal, before directing `consideration' of a claim or representation should examine whether the claim or representation is with reference to a `live' issue or whether it is with reference to a `dead' or `stale' issue. If it is with reference to a `dead' or `state' issue or dispute, the court/Tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or Tribunal deciding to direct 'consideration' without itself examining of the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect.
17. Even on merits, the application has to fail. In Krishena Kumar vs. Union of India - 1990 (4) SCC 207, a Constitution Bench of this Court considering the options given to the Railway employees to shift to pension scheme, held that prescription of cut off dates while giving each option was not arbitrary or lacking in nexus. This Court also held that provident fund retirees who failed to exercise option within the time were not entitled to be included in the pension scheme on any ground of parity. Therefore, the respondent who did not exercise the option available when he retired in 1976, was not entitled to seek an Page 27 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT opportunity to exercise option to shift to the pension scheme, after the expiry of the validity period for option scheme, that too in the year 1998 after 22 years.
18. The respondent relied on the decision of a two- Judge Bench of this Court in Union of India vs. D.R.R. Sastri - 1997 (1) SCC 514 in support of his claim. The said decision is clearly distinguishable on facts. In that case, the respondent, a railway employee, had gone on deputation to Heavy Engineering Corporation, and later resigned from railway service with effect from 26.6.1973 and was absorbed in the service of the said Corporation. When the Liberalised Pension Scheme was introduced by the Railway Board by letter dated 23.7.1974, an opportunity was given to all persons governed by the Provident Fund Scheme who were in service of Railways as on 1.1.1973 to opt for the pension scheme. The Railway Board directed that the availability of such option should be brought to the notice of all retired railway servants who were in service as on 1.1.1973, The respondent therein who had left the Railway service on 26.6.1973 was not informed of the availability of the option. He could not therefore exercise the option. In fact, he retired from service of the Heavy Engineering Corporation without any pension as that Corporation had also no pension scheme.
19. The respondent therein approached the Central Administrative Tribunal in 1993 alleging that he came to know about the said option only in 1993 and that his representation dated 12.6.1993 for relief was rejected by the Railway Board on 13.7.1993. The Tribunal held that the respondent should be given the opportunity to exercise his option to shift to pension scheme, in terms of the Railway Board's letter dated 23.7.1974, as he was prevented from exercising his option by the failure of Railways to inform him about the option. The Tribunal also took note of the fact that another railway employee was allowed to exercise the option long after the date for exercising the option had Page 28 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT expired, but the respondent was not given a similar benefit. The said decision of the Tribunal was affirmed by this Court.
20. The decision in D.R.R. Sastri is of no assistance as it does not lay down any proposition that the last date prescribed for exercising option is not relevant or that option could be exercised at any time, even if a last date had been stipulated for exercise of the option. That case was decided on its peculiar facts as the employee (who was on deputation and who resigned from the service of railways on 26.6.1973 when on deputation) was not made aware of the option to which he was entitled, even though there was a specific instruction that all employees who had retired after 1.1.1973 should be informed about the option. The facts of this case are completely different. Here the employee was in service of the Railways itself before and at the time of retirement. He was working as the Head of the Department and was receiving all communications relating to option for being circulated to all 14 employees in his department. Therefore, the question of respondent not being aware of the option does not arise.
21. The Tribunal in this case has assumed that being `aware' of the scheme was not sufficient notice to a retiree to exercise the option and individual written communication was mandatory. The Tribunal was of the view that as the Railways remained unrepresented and failed to prove by positive evidence, that respondent was informed of the availability of the option, it should be assumed that there was non-compliance with the requirements relating to notice. The High Court has impliedly accepted and affirmed this view. The assumption is not sound.
22. The Tribunal was examining the issue with reference to a case where there was a delay of 22 years. A person, who is aware of the availability of option, cannot contend that he was not served a written notice of the availability of the option after Page 29 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT 22 years. In such a case, even if Railway administration was represented, it was not reasonable to expect the department to maintain the records of such intimation/s of individual notice to each employee after 22 years. In fact by the time the matter was considered more than nearly 27 years had elapsed. Further when notice or knowledge of the availability of the option was clearly inferable, the employee cannot after a long time (in this case 22 years) be heard to contend that in the absence of written intimation of the option, he is still entitled to exercise the option."
12. In the case of National Council of Educational Research and Training v. Shyam Babu Maheshwari and others reported in (2011) 6 SCC 412, the Supreme Court held as under:
"11. It is thus clear that in R. Subramaniam (supra) the claim of the employee had to be allowed by this Court because in an earlier order, the Central Administrative Tribunal had allowed the claim of the railway employees to switch over to the Pension Scheme and the order of the Central Administrative Tribunal had become final on the dismissal of the Special Leave Petition and the Review Petition by this Court. The facts of this case are entirely different. There is no such earlier order of the Tribunal or a Court allowing the claim of the respondent to switch over from the CPF Scheme to the Pension Scheme, which had become final. The Tribunal, the learned Single Judge and the Division Bench of the High Court were thus not right in relying on the decision of this Court in R. Subramaniam (supra) in allowing the claim of the respondent to switch over from the CPF Scheme to the Pension Scheme.
12. We may now consider whether dehors the decision of this Court in R. Subramaniam (supra) the respondent could be allowed to opt for the Pension Scheme having earlier opted for the CPF Scheme while in service. Admittedly, the Page 30 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT respondent while he was in service of NCERT had opted for the CPF Scheme way back in 1977 and on his retirement, he had availed the benefits of the CPF Scheme. This Court has held in Krishena Kumar, etc. v. Union of India & Ors., V.K. Ramamurthy v. Union of India & Anr. and Union of India & Ors. v. Kailash (supra) that once an employee has opted for the CPF Scheme, his exercise of option was final and he is not entitled to change over to the Pension Scheme because the two schemes are entirely different. It, however, appears that the Government in the Ministry of Personal and Training by the O.M. dated 06.06.1985 gave an opportunity to Central Government employees who had earlier opted for the CPF Scheme to opt for the Pension Scheme.
13. The relevant portion of the O.M. dated 06.06.1985 is extracted herein below:-
"... In the light of these changes, the President is now pleased to decide that Central Government employees who have retained the Contributory Provident Fund benefits in terms of rule 38 of the Contributory Provident Fund Rules (India), 1962 or in terms of any other orders issued in this behalf, may be allowed another opportunity to opt for the Pension Scheme as laid down in the Central Civil Services (Pension) Rules, 1972. The option is open to those Government employees who were in service on the 31st March, 1985 and retiring from service on or after that date. The option should be exercised within a period of six months from the date of issue of this O.M. Option once exercised shall be final."
14. The O.M. dated 06.06.1985 has been adopted by the NCERT in its Circular dated 18.07.1985. It will be clear from the language of the O.M. dated 06.06.1985 that the option to an employee to switch over from the CPF Scheme to the Pension Scheme was open to only those employees who Page 31 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT were in service on 31.03.1985 and who were retiring on or after 31.03.1985. By 31.03.1985, admittedly, the respondent had retired, his date of retirement being 31.07.1984. He is, therefore, not entitled to fresh option to switch over from the CPF Scheme to the Pension Scheme."
13. In the case of Rajasthan Rajya Vidyut Vitran Nigam Ltd. v. Dwarka Prasad Koolwal reported in 2015 (12) SCC 51, the Supreme Court held as under:
"34. We have mentioned above that the reason why some employees did not switch over from the CPF Scheme to the Pension and GPF Regulations is perhaps because of reasons personal to them. But at the same time, it must be pointed out that the respondents have virtually let the cat out of the bag by an averment made by them in their writ petition filed before the High Court. The background to the averment is given below.
35. The RSEB passed an order on 23rd August, 1997 in which it was stated that the Government of Rajasthan had recently promulgated the Rajasthan Civil Services (Pension) Rules, 1996 as amended from time to time. In view of this, the RSEB decided that the pension, family pension and commutation of pension in respect of its employees would be computed under the specific provisions of the Rajasthan Civil Services (Pension) Rules, 1996.
36. In their writ petition filed in the High Court the respondents stated that by virtue of this order dated 23rd August, 1997, the calculation of pension, family pension and commutation of pension under the Pension and GPF Regulations, became more beneficial to the employees as against the provisions in the CPF Scheme. It is perhaps this computation benefit made available to the employees of the RSEB with the adoption of the Rajasthan Civil Services (Pension) Rules, 1996 that prompted the Page 32 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT respondents to switch-over from the CPF Scheme to the Pension and GPF Regulations. Unfortunately, by that time the period for making the switch- over had expired in terms of the 8th notice dated 4th February, 1997. Therefore, since the respondents were unable to take advantage of the beneficial computation under the Pension and GPF Regulations read with the Rajasthan Civil Services (Pension) Rules, 1996 they seem to have set up a case of being unaware of the various notices issued by the RSEB from time to time over a period of 8 years.
37. All that we can infer from the conduct of the respondents is that they went along with the CPF Scheme so long as it was beneficial to them, but when the calculation of pension, family pension and commutation of pension underwent an alteration pursuant to the order dated 23rd August, 1997 the respondents had a change of heart and sought to take advantage of the revised manner of computation provided for in the Rajasthan Civil Services (Pension) Rules, 1996. We can only say that the argument of a lack of awareness of the switch- over option appears to be nothing but a self-serving argument.
38. Another facet of this argument (which was feebly urged) is to found in Issue No.5 dealt with by the RSEB in its order dated 26th June, 2008 in the following words:
"Issue raised
5. That the erstwhile RSEB adopted R.C.S. (Pension) Rules, 1996 of the Govt. of Rajasthan vide its order no. RSEB/F & R/F.3 (10)/D-42 dated 23.8.1997 but did not provide any opportunity to its employees for exercising option under RSEB Employees Pension Regulation, 1988.
Findings Issue 5:
That the erstwhile RSEB through RSEB Regulations - 1988 issued separate pension rules for their employees. But in the year 1996, Finance Department, GoR issued new Page 33 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT Pension Rules in which computation of pension, family pension, and commutation as well as amount of pensions etc. was amended or revised. RSEB vide order No.42/23.8.1997 opted only computation for the amount of pension, family pension and commutation, other provisions of RSEB Pension Regulations, 1988 remaining unchanged. It has no relation to the option. Thus the applicants were not entitled for any re-option for pension even after the order dt. 23.8.1997. There were already given 8 opportunities to switch over to pension but they retained CPF benefits only."
39. We are in agreement with the view expressed by the RSEB that any and every change in the computation of pension or in the Pension Regulations (either of the RSEB or the Rajasthan Government) does not warrant a fresh option being offered to the respondents.
40. With regard to the submission that the respondents belong to the junior or technical cadre consisting of low paid staff such as peons, vehicle drivers, helpers etc. we need only say that, as pointed out in the rejoinder affidavit of the RSEB, about 100 of the respondents are senior level officers holding posts of Head of Office and Head of Department with the RSEB. As per the Pension and GPF Regulations, they receive the option forms from the employees, countersign them and then forward them to the Controller of Accounts. It is extremely difficult to accept their contention that they were unaware of the switch-over option."
14. In the case of Pepsu Road Transport Corporation, Patiala v. Mangal Singh and others, reported in (2011) 11 SCC 702, the Supreme Court held as under:
"29. It is well settled law that the Regulations made under the statute laying down the terms and Page 34 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT conditions of service of employees, including the grant of retirement benefits, has the force of law. The Regulations validly made under statutory powers are binding and effective as the enactment of the competent legislature. The statutory bodies as well as general public are bound to comply with the terms and conditions laid down in the Regulations as a legal compulsion. Any action or order in breach of the terms and conditions of the Regulations shall amount to violation of Regulations which are in the nature of statutory provisions and shall render such action or order illegal and invalid.
30. In Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, (1975) 1 SCC 421, this Court, while elaborately discussing the nature and effect of the Regulations made under the Statute, has observed:
"23. The noticeable feature is that these statutory bodies have no free hand in framing the conditions and terms of service of their employees. These statutory bodies are bound to apply the terms and conditions as laid down in the Regulations. The statutory bodies are not free to make such terms as they think fit and proper.
Regulations prescribe the terms of appointment, conditions of service and procedure for dismissing employees. These Regulations in the statutes are described as "status fetters on freedom of contract". The Oil and Natural Gas Commission Act in Section 12 specifically enacts that the terms and conditions of the employees may be such as may be provided by Regulations. There is a legal compulsion on the Commission to comply with the Regulations. Any breach of such compliance would be a breach of the Regulations which are statutory provisions. In other statutes under consideration viz. the Life Insurance Corporation Act and the Industrial Finance Corporation Act though there is no specific provision comparable to Section 12 of the 1959 Act the terms and conditions of employment and conditions of service are provided for by Regulations. These Page 35 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT Regulations are not only binding on the authorities but also on the public. ...
30. In this view a Regulation is not an agreement or contract but a law binding the corporation, its officers, servants and the members of the public who come within the sphere of its operations. The doctrine of ultra vires as applied to statutes, rules and orders should equally apply to the Regulations and any other subordinate legislation. The Regulations made under power conferred by the statute are subordinate legislation and have the force and effect, if validly made, as the Act passed by the competent legislature. ...
33. There is no substantial difference between a rule and a Regulation inasmuch as both are subordinate legislation under powers conferred by the statute. A Regulation framed under a statute applies uniform treatment to every one or to all members of some group or class. The Oil and Natural Gas Commission, the Life Insurance Corporation and Industrial Finance Corporation are all required by the statute to frame Regulations inter alia for the purpose of the duties and conduct and conditions of service of officers and other employees. These Regulations impose obligation on the statutory authorities. The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by courts to invalidate actions in violation of rules and Regulations. The existence of rules and Regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The statutory Regulations in the cases under consideration give the employees a statutory status and impose restriction on the employer and the employee with no option to vary the conditions. An ordinary individual in a case of master and servant contractual relationship enforces breach of contractual terms. The remedy in such contractual relationship of master and Page 36 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT servant is damages because personal service is not capable of enforcement. In cases of statutory bodies, there is no personal element whatsoever because of the impersonal character of statutory bodies. In the case of statutory bodies it has been said that the element of public employment or service and the support of statute require observance of rules and Regulations."
31. In Vidya Dhar Pande v. Vidyut Grih Siksha Samiti, (1988) 4 SCC 734, the services of the appellant-employee were terminated, in contravention of the service Regulations, by the respondent school. This Court, while reinstating the employee in service, has agreed with the observations made in Sukhdev Singh's case (Supra). While doing so, this Court has stated :
"9. The question whether a Regulation framed under power conferred by the provisions of a statute has got statutory power and whether an order made in breach of the said Regulation will be rendered illegal and invalid, came up for consideration before the Constitution Bench in the case of Sukhdev Singh v.
Bhagatram Sardar Singh Raghuvanshi. In this case it was held that: [SCC p. 438 :
SCC (L&S) P. 118, para 33] "There is no substantial difference between a rule and a Regulation inasmuch as both are subordinate legislation under powers conferred by the statute. A Regulation framed under a statute applies uniform treatment to every one or to all members of some group or class. The Oil and Natural Gas Commission, the Life Insurance Corporation and Oil and Industrial Finance Corporation are all required by the statute to frame Regulations inter alia for the purpose of the duties and conduct and conditions of service of officers and other employees. These Regulations impose obligation on the statutory authorities. The statutory Page 37 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by courts to invalidate actions in violations of rules and Regulations. The existence of rules and Regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The statutory Regulations in the cases under consideration give the employee a statutory status and impose restriction on the employer and the employee with no option to vary the conditions."
10. There is, therefore, no escape from the conclusion that Regulations have force of law. The order of the High Court must, therefore, be reversed on this point unhesitatingly."
32 Even in the case of non-statutory Regulations, specifically providing for the grant of pensionary benefits to the employee qua his employer shall be governed by the terms and conditions encapsulated in such non-statutory Regulations. In Union of India v. Brig. P. K. Dutta (Retd.), 1995 Supp (2) SCC 29, this Court :
7. It is true that the Pension Regulations are non-
statutory in character. But as held by this Court in Major (Retd.) Hari Chand Pahwa v. Union of India 1995 Supp (1) SCC 221 , the pensionary benefits are provided for and are payable only under those Regulations and can, therefore, be withheld or forfeited under and as provided by those very Regulations. The following observations from the said judgment makes the position clear:
"We do not agree even with the second contention advanced by the learned counsel. The provisions of Regulation 16(a) are clear. Even if it is assumed that the Pension Regulations have no statutory force, we fail to understand how the provisions of the said Regulations are contrary to the statutory provisions under the Act or the Rules. The pension has been provided under these Page 38 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT Regulations. It is not disputed by the learned counsel that the pension was granted to the Corporation under the said Regulations. The Regulations which provided for the grant of pension can also provide for taking it away on justifiable grounds."
33. In Rajasthan SRTC v. Bal Mukund Bairwa, (2009) 4 SCC 299, the services of the employee of the appellant were terminated by virtue of service Regulations (Statutory) made under Section 45 of the Road Transport Corporation Act, 1950. This Court, while upholding the jurisdiction of the Civil Court to entertain the suit filed by the employee challenging the order of termination of his services, has held:
"38. Where the relationship between the parties as employer and employee is contractual, the right to enforce the contract of service depending on personal volition of an employer is prohibited in terms of Section 14(1)(b) of the Specific Relief Act, 1963. It has, however, four exceptions, namely, (1) when an employee enjoys a status i.e. his conditions of service are governed by the rules framed under the proviso appended to Article 309 of the Constitution of India or a statute and would otherwise be governed by Article 311(2) of the Constitution of India; (2) where the conditions of service are governed by statute or statutory Regulation and in the event mandatory provisions thereof have been breached; (3) when the service of the employee is otherwise protected by a statute; and (4) where a right is claimed under the Industrial Disputes Act or sister laws, termination of service having been effected in breach of the provisions thereof.
39. The appellant Corporation is bound to comply with the mandatory provisions of the statute or the Regulations framed under it. A subordinate legislation when validly framed becomes a part of the Act..."
34. Pension is a retirement benefit partaking of the character of regular payment to a person in Page 39 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT consideration of the past services rendered by him. We hasten to add that although pension is not a bounty but is claimable as a matter of right, yet the right is not absolute or unconditional. The person claiming pension must establish his entitlement to such pension in law. The entitlement might be dependent upon various considerations or conditions. In a given case, the retired employee is entitled to pension or not depend on the provisions and interpretation of Rules and Regulations. The Contributory Provident Fund appears to be simple mechanism where an employee is paid the total amount which he has contributed along with the equal contribution made by the employer ordinarily at the time of retirement of an employee. In short, we quote what was repeatedly said by this Court that "pension is payable periodically as long as the pensioner is alive whereas C.P.F. is paid only once on retirement". Therefore, conceptually, pension and C.P.F. are separate and distinct.
35. Now we will try to explain the essential distinction between these two retirement benefits that an employee may derive at the time of his retirement from service. The C.P.F. was introduced with the object of providing social security to the employees working in factories and other establishments, after their retirement. The C.P.F. was instituted as a Compulsorily Contributory Provident Fund by the enactment of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as "the Provident Fund Act"). The employee registered under the Provident Fund Act shall be entitled to claim all benefits available under the C.P.F. Scheme framed under the Act. This CPF Scheme requires opening of the account for the employee by the employer. The Government/employer is under the continuous obligation to deposit equal or matching contribution made by the employee in his account till he retires. Once the employee is retired, then his rights qua Government/employer's contribution into his C.P.F. account finally crystallizes. After retirement, this entire C.P.F. amount is paid to the employee as a retrial benefit. On the receipt of C.P.F. amount, the Page 40 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT relationship between employee and employer ceases to exist without leaving any further legal right or obligation qua each other.
36. In Committee for Protection of Rights of ONGC Employees v. O.N.G.C., (1990) 2 SCC 472, this Court has stated :
"12. Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (hereinafter referred to as `the Provident Fund Act') has been enacted with the object of providing social security to the employees in factories and other establishments covered by the said Act, after their retirement. In the Statement of Objects and Reasons for the said enactment it was mentioned as under:
"The question of making some provision for the future of the industrial worker after he retires, or for his dependants in case of his early death, has been under consideration for some years. The ideal way would have been provisions through old age and survivors' pensions as has been done in the industrially advanced countries. But in the prevailing conditions in India, the institution of a pension scheme cannot be visualised in the near future. Another alternative may be for provision of gratuities after a prescribed period of service. The main defect of a gratuity scheme, however, is that the amount paid to a worker or his dependants would be small, as the worker would not himself be making any contribution to the fund. Taking into account the various difficulties, financial and administrative, the most appropriate course appears to be the institution compulsorily of contributory provident fund in which both the worker and the employer would contribute. Apart from other advantages, there is the obvious one of cultivating among the workers a spirit of saving something regularly."
13. This indicates that the scheme of Contributory Provident Fund, by way of retiral benefit, envisaged by the Provident Fund Act, is in the nature of a substitute for old age pension Page 41 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT because it was felt that in the prevailing conditions in India, the institution of a pension scheme could not be visualised in the near future. It was not the intention of Parliament that Provident Fund benefit envisaged by the said Act would be in addition to pensionary benefits."
37. In Krishena Kumar v. Union of India, (1990) 4 SCC 207, this Court has held :
"32. The Railway Contributory Provident Fund is by definition a fund. Besides, the government's obligation towards an employee under CPF Scheme to give the matching contribution begins as soon as his account is opened and ends with his retirement when his rights qua the government in respect of the Provident Fund is finally crystallized and thereafter no statutory obligation continues. Whether there still remained a moral obligation is a different matter."
38. In All India Reserve Bank Retired Officers' Assn. v. Union of India, 1992 Supp (1) SCC 664, this Court, while considering the case of the Pension Scheme and Contributory Provident Fund Scheme, has held:
"10. ... in the case of an employee governed by the Contributory Provident Fund Scheme his relations with the employer come to an end on his retirement and receipt of the contributory provident fund amount but in the case of an employee governed under the Pension Scheme his relations with the employer merely undergo a change but do not snap altogether."
39. Pension is a periodic payment of an amount to the employee, after his retirement from service by his employer till his death. In some cases, it is also payable to the dependents of the deceased employee as a family pension. The pension is in a nature of right which employee has earned by rendering long service to the employer. It is a deferred payment of compensation for past service. It is dependable on Page 42 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT the condition of rendering of service by the employee for a certain fixed period of time with decent behavior. Like C.P.F., the object of providing pensionary benefit under the Pension Scheme is to provide social security to the employee and his family after his retirement from service. The Government's/Employer's obligation under the Pension Scheme begins only when the employee retires and it continues till the death of the employee.
40. In Deokinandan Prasad v. State of Bihar, (1971) 2 SCC 330, this Court has held:
"31. ... 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."
41. In D.S. Nakara v. Union of India, (1983) 1 SCC 305, this court has observed:
"27. Viewed in the light of the present day notions pension is a term applied to periodic money payments to a person who retires at a certain age considered age of disability; payments usually continue for the rest of the natural life of the recipient. The reasons underlying the grant of pension vary from country to country and from scheme to scheme. But broadly stated they are (i) as compensation to former members of the Armed Forces or their dependents for old age, disability, or death (usually from service causes), (ii) as old age retirement or disability benefits for civilian employees, and (iii) as social security payments for the aged, disabled, or deceased citizens made in accordance with the rules governing social service programmes of the country. Pensions under the first head are of great antiquity. Under the second head they have been in force in one form or another in some countries for over a century but those coming under the third head are relatively of recent origin, though they are of the greatest magnitude. There are other views about pensions such as charity, paternalism, Page 43 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT deferred pay, rewards for service rendered, or as a means of promoting general welfare (see Encyclopaedia Britannica, Vol. 17, p. 575). But these views have become otiose.
28. Pensions to civil employees of the Government and the defence personnel as administered in India appear to be a compensation for service rendered in the past. However, as held in Douge v. Board of Education, 302 US 74, a pension is closely akin to wages in that it consists of payment provided by an employer, is paid in consideration of past service and serves the purpose of helping the recipient meet the expenses of living. This appears to be the nearest to our approach to pension with the added qualification that it should ordinarily ensure freedom from undeserved want.
29. Summing up it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and, therefore, one is required to fall back on savings. One such saving in kind is when you give your best in the hey-day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus the pension payable to a government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation or for service rendered. In one sentence one can say that the most practical raison d'etre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon."
42. In Poonamal v. Union of India, (1985) 3 SCC Page 44 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT 345, this Court has observed:
"7. ... pension is a right not a bounty or gratuitous payment. The payment of pension does not depend upon the discretion of the Government but is governed by the relevant rules and anyone entitled to the pension under the rules can claim it as a matter of right. (Deoki Nandan Prasad v. State of Bihar 1971 (2) SCC 330, State of Punjab v. Iqbal Singh 1976 (2) SCC 1 and D.S. Nakara v. Union of India 1983 (1) SCC
305.) Where the Government servant rendered service, to compensate which a family pension scheme is devised, the widow and the dependent minors would equally be entitled to family pension as a matter of right. In fact we look upon pension not merely as a statutory right but as the fulfilment of a constitutional promise inasmuch as it partakes the character of public assistance in cases of unemployment, old-age, disablement or similar other cases of undeserved want. Relevant rules merely make effective the constitutional mandate."
43. In Krishena Kumar v. Union of India (supra) this Court has held:
"32. ...On the other hand under the Pension Scheme the government's obligation does not begin until the employee retires when only it begins and it continues till the death of the employee. Thus, on the retirement of an employee government's legal obligation under the Provident Fund account ends while under the Pension Scheme it begins."
44. In Prabhu Narain v. State of U.P.,(2004) 13 SCC 662, this Court has observed:
"5. No doubt pension is not a bounty, it is a valuable right given to an employee, but, in the first place it must be shown that the employee is entitled to pension under a particular rule or the scheme, as the case may be."
45. In U.P. Raghavendra Acharya v. State of Page 45 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT Karnataka, (2006) 9 SCC 630, this Court has held:
"25. Pension, as is well known, is not a bounty. It is treated to be a deferred salary. It is akin to right of property. It is correlated and has a nexus with the salary payable to the employees as on the date of retirement."
46. The term pension has been defined in American Jurisprudence 2d, Vol. 60, at pg. 879 as thus:
"However, by modern usage, the "pension" is not restricted to pure gratuities. Thus, it has been held that a pension paid a governmental employee for long and efficient service is not an emolument the payment of which is barred by a state constitutional provision, but is a deferred portion of the compensation earned for services rendered. ... A pension is closely akin to wages in that it consists of payments provided by an employer, is paid in consideration of past services, and serves the purpose of helping the recipient meet the expense of living."
47. The concept of pension has been discussed in Halsbury's Laws of England, Fourth Edition (Reissue), Vol. 16, para. 400 as thus:
"Meaning of `pension'. `Pension' means a periodical payment or lump sum by way of pension, gratuity or superannuation allowance as respects which the Secretary of State is satisfied that it is to be paid in accordance with any scheme or arrangement having its object or one of its objects to make provision in respect of persons serving in particular employments for providing them with retirement benefits ... `Pension' does not include:
(i) a payment to an employee which consists solely of a return of his own contributions, with or without interest;
(ii) that part of a payment to an employee which is attributable solely to additional voluntary contributions by that employee made in accordance with the scheme or arrangement;
(iii) a periodical payment or lump sum, in so far
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as that payment or lump sum represents compensation under the statutory compensation schemes and is payable under a statutory provision, whether made or passed before, on or after 31st July 1978"
48. The concept of pension has also been considered in Corpus Juris Secundum, Vol. 70, at pg. 423 as thus:
"A pension is a periodical allowance of money granted by the government in consideration or recognition of meritorious past services, or of loss or injury sustained in the public service. A pension is mainly designed to assist the pensioner in providing for his daily wants, and it presupposes the continued life of the recipient."
49. To sum up, we state that the concept of pension has been considered by this court time and again and in catena of cases, it has been observed that the Pension is not a charity or bounty nor is it a conditional payment solely dependent on the sweet will of the employer. It is earned for rendering a long and satisfactory service. It is in the nature of deferred payment for past services. It is a social security plan consistent with the socio-economic requirements of the Constitution when the employer is a State within the meaning of Article 12 of the Constitution rendering social justice to a superannuated government servant. It is a right attached to the office and cannot be arbitrarily denied. [see A.P. Srivastava v. Union of India, (1995) 6 SCC 227, Vasant Gangaramsa Chandan v. State of Maharashtra, (1996) 10 SCC 148, Subrata Sen v. Union of India, (2001) 8 SCC 71, Union of India v. P.D. Yadav, (2002) 1 SCC 405, Grid Corpn. of Orissa v. Rasananda Das, (2003) 10 SCC 297, All India Reserve Bank Retired Officers Assn. v. Union of India (Supra)].
50. Having noticed the conceptual difference between the concept of C.P.F. and pension, we will now notice the submissions made by the learned Page 47 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT counsel for the parties to the lis."
15. In the case of Pepsu Road Transport Corporation, Patiala v. S.K.Sharma and others, reported in (2016) 9 SCC 206, the Supreme Court held as under:
"8. Lastly, it was contended on behalf of appellants that the High Court should not have entertained the writ petition in 1992 or allowed substantial amendments in 1998 to permit claims made belatedly after decades and after superannuation from the service of the Corporation. Such claims should have been rejected on the ground of delay. In support of this plea reliance was placed upon judgment in the case of PEPSU Road Transport Corporation, Patiala v. Mangal Singh and Ors.[1] In this case the respondents were still in service as the employees of the appellant Corporation when the Regulations of 1992 introduced a pension scheme but they did not exercise option for pension within the stipulated time. Moreover, they also availed of retiral benefits arising out of CPF and gratuity without any protest. This Court held that the respondents on account of failure on their part, could not claim benefit under the pension scheme. Particular reliance was placed upon the following observations at the end of paragraph 35;
".....On the receipt of CPF amount, the relationship between employee and employer ceases to exist without leaving any further legal right or obligation qua each other."
Since most of the respondents in that case also had retired after serving for several years since the enforcement of Regulations of 1992 and had advanced claim for pension after accepting CPF etc., in para 52 this Court counted the delay of about eight years from the introduction of pension scheme in 1992 and held such delay was unreasonable. On that basis it has been urged on behalf of appellants that through amendment made in 1998 the respondents gave up their claim for pension under the Regulations of 1992 and instead claimed Page 48 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT pensionary rights by indirectly mounting a challenge to the decision of the State Government evident from letter dated 16.10.1956, merging PEPSU Roadways with the Corporation. Their claim of being in the employment of State and to have suffered the effect of States Reorganization Act and merger of PEPSU State with the State of Punjab on 01.11.1956 was clearly a claim made after unusual delay of several decades and the High Court should not have condoned such delay.
9. In reply, Mr. S.K. Sharma learned counsel for the respondents advanced arguments in support of the impugned judgment. As per his submissions, even after the transfer of Roadways Department to the Corporation, there was legal necessity of issuing formal orders showing absorption of respondents as employees of Corporation under a valid resolution of the Corporation. He relied upon findings of the High Court that there was no order or resolution for such absorption.
10. On behalf of respondents reliance was placed upon judgment in the case of Vice Chancellor, Utkal University & Ors. v. S.K. Ghosh & Ors.[2], to support the proposition that a corporate body like University acts through formal resolution arrived at in a proper manner by the competent body. The facts of this case were entirely different. The appellant before this Court was Vice-Chancellor of a University who was aggrieved by the High Court judgment interfering with the cancellation of an examination through resolutions of the University Syndicate. The High Court invalidated the resolution for want of proper notice vide agenda for the meeting as well as lack of justification for cancellation of the examination. This Court reversed the judgment of the High Court on both counts. The ratio of the judgment does not help the respondents.
11. Respondents next relied upon judgment in the case of State of Punjab v. Nirmal Singh.[3] In this case State of Punjab was aggrieved by impugned judgment of the High Court whereby minor Page 49 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT punishment imposed upon Nirmal Singh was set aside. This Court allowed the appeal and reversed the judgment of the High Court on a finding that there was no requirement under the rule to grant a personal hearing for imposition of a minor penalty and that the High Court had erred in treating the order of the competent authority as a non-speaking order. This case also is not relevant for deciding the controversy at hand.
12. To meet the allegation of delay, reliance was placed upon S.R. Bhanrale v. Union of India and Ors. [4] The appellant in that case retired as an officer in the Department of Telecommunications, Government of India and received pension immediately on retirement. For no good reasons his other retiral benefits and claims remained unsettled in spite of several representations. After serving the notice under Section 80 CPC and approximately after three years he moved the Central Administrative Tribunal. While the matter was pending with this Court, upon directions of the Department, the appellant was paid some of the benefits. At the stage of final hearing, this Court considered the circumstances and observed that in the facts of the case the Union of India was not justified in raising the bar of limitation against the dues of the appellant. It cannot be claimed by way of general rule simply on the basis of aforesaid judgment that in all cases of claim for pension, the plea of delay or limitation cannot be considered by a writ court. Only where the retiral benefits have been wrongly withheld and not paid despite numerous representations and as observed in para 4 of the aforesaid judgment the delay is not of decade or so the Court may not appreciate a plea of limitation raised by the Government.
13. In the present case admission or declaration made by the Corporation on 30.11.1956 through Order no. 61 that services of the respondents, i.e., of all temporary employees stood transferred to the Corporation with effect from 16.10.1956 and shall be governed by the new terms and conditions as and when approved by the Corporation was within the Page 50 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT knowledge of the respondents and they accepted such orders of the Government and the Corporation from 1956 till their retirement and even thereafter till the enforcement of Regulations of 1992 which led to filing of writ petition by them in 1992. Clearly the respondents acquiesced to the entire situation and accepted their status as employees of the Corporation leading to admissible retiral benefits. In such circumstances, the aforesaid judgment cannot help the respondents. The appellant Corporation was fully justified in raising the plea of delay and latches. The High Court erred in ignoring such plea when the delay was quite unusual. We find no material to satisfactorily explain such delay."
16. The case laws cited herein above indicate that the petitioners at their very inception when were appointed had accepted the condition that they would be governed by the CPF scheme. All through their tenure they continued to be so governed and even on retirement they accepted and withdrew their CPF contributions. There was no pension scheme made applicable to such employees. The judgments relied upon by Mr.J.V.Japee are therefore out of context. In the cases before this Court there were government resolutions giving options of switching over to pension scheme and the controversy was whether options at all were necessary. So is not the case on hand. There were no resolutions extending the benefits of opting over to pension.
17. In Nakara's case (supra) it was never held that both the pension retirees and the PF retirees form a homogeneous class. The beneficiaries of CPF scheme cannot claim parity. In the case of the petitioners they were CPF retirees and their rights were fully crystallized on the date of their retirement and on receipt of pensionary benefits and there was therefore no continuing obligation thereafter and they cannot be treated Page 51 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020 C/SCA/13400/2018 JUDGMENT at par with living pensioners.
18. Once having opted to be governed by the CPF scheme with open eyes and having enjoyed such benefits, it is not open for the petitioners to turn around and claim the relief of asking for pension. The petitioners when joined the corporation as part of a relationship as employer and employee accepted to be governed by the contractual relationship and agreed to be governed by the service conditions. Now after having retired it is not open and turn around and claim a benefit which he/she was otherwise not entitled to.
19. The petitions are accordingly dismissed with no order as to costs.
(BIREN VAISHNAV, J) ANKIT SHAH Page 52 of 52 Downloaded on : Sun Jun 14 14:39:13 IST 2020