Gujarat High Court
Manilal Haridas Patel vs State Of Gujarat & 3 on 11 July, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/5006/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 5006 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 5009 of 2016
With
SPECIAL CIVIL APPLICATION NO. 8756 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 8758 of 2016
With
SPECIAL CIVIL APPLICATION NO. 8760 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 8764 of 2016
With
SPECIAL CIVIL APPLICATION NO. 8766 of 2016
With
SPECIAL CIVIL APPLICATION NO. 9602 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 9607 of 2016
With
SPECIAL CIVIL APPLICATION NO. 9609 of 2016
With
SPECIAL CIVIL APPLICATION NO. 9627 of 2016
With
SPECIAL CIVIL APPLICATION NO. 9629 of 2016
With
SPECIAL CIVIL APPLICATION NO. 12378 of 2015
With
SPECIAL CIVIL APPLICATION NO. 10822 of 2016
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MANILAL HARIDAS PATEL....Petitioner(s) Versus STATE OF GUJARAT & 3....Respondent(s) ========================================================== Appearance :
MR JAYRAJ CHAUHAN, ADVOCATE FOR AND ON BEHALF OF Page 1 of 65 HC-NIC Page 1 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER MR MUKUND M DESAI, ADVOCATE for the Petitioner(s) No.1 MS MANISHA LAVKUMAR, GOVERNMENT PLEADER WITH MS ASMITA PATEL, ASST.GP for the Respondents. ========================================================== CORAM HONOURABLE MS JUSTICE SONIA GOKANI :
Date : 11/07/2017 ORAL COMMON JUDGMENT
1. This group of petitions preferred under Article 226 of the Constitution of India since involve identical questions of facts and law, they were heard together and are decided by this common judgment.
2. The petitioners have approached this Court for grant of pension as provided vide Government Resolution dated October 15, 1984. Aggrieved by the fact that the respondents are not paying the pension to the petitioners, they are before this Court, questioning the act and conduct of the respondents, particularly averring that their case is squarely covered by the decision of the Division Bench of this Court (Coram : M.R. Shah and A.G. Uraizee, JJ.) rendered on July 02, 2015, in the case of State of Gujarat through Page 2 of 65 HC-NIC Page 2 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER Secretary and others v. Bhupendra Vallabhdas Chudasama and another, while dealing with Letters Patent Appeal No.981 of 2015 in Special Civil Application No.7173 of 2012 and other such decisions.
3. As all the petitions are identical in nature, this Court would refer to the facts of the case arising out of Special Civil Application No.5006 of 2016 for the sake of convenience and brevity and for examining the rival legal contentions urged in this group of petitions.
3.1 The petitioner possesses the qualification of Master of Arts (M.A.), Doctor of Philosophy (Ph.D.) in the subject of Gujarati. He joined the services with the Idar Anjana Patidar Arts and Commerce College, Idar, as a Lecturer and served there till March 04, 1987.
3.2 Thereafter, the petitioner vide order dated September 07, 1986, was appointed as Lecturer in the Post Graduate Department of Gujarat in Sardar Patel University and he joined the same on March 05, 1987.
Page 3 of 65 HC-NIC Page 3 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER 3.3 The petitioner was subsequently promoted as a Reader on February 01, 1990 and then, His appointment as a Professor was with effect from July 01, 2000 in the Post Graduate Department of Gujarat in Sardar Patel University itself under the CAS scheme vide order dated July 13/14, 2000; and he continued to served there till his date of superannuation i.e. June 14, 2012.
3.4 The pension scheme for teaching staff in nonGovernment affiliated colleges and in the University was introduced vide Government Resolution dated October 15, 1984. Even if the petitioner has not given any option, he is entitled to pension because his appointment was dated March 05, 1987 i.e. after April 01, 1982. Hence, the petitioner has approached this Court holding him entitled to pension as per the Government Resolution dated October 15, 1984 and thereby, to grant him pension forthwith by considering the services rendered by him. Page 4 of 65 HC-NIC Page 4 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER
4. At this stage, it would be appropriate to place on record the details qua the petitioners of respective petition, which in the tabular form are as under :
Page 5 of 65
HC-NIC Page 5 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER Sr. Special Name of Petitioner Date of First Designation Date of Promotion at the time of No Civil Appoint- First Applicati ment Appointment on No.
1. 5006/ Shri Manilal Haridas 07.11.1986 Lecturer (1) Reader on 01.02.1990 2016 Patel (2) Professor on 01.07.2000
2. 5007/ Shri Shankarbhai 15.06.1962 Lecturer (1) Principal on 18.06.1996 2016 Dahyabhai Trivedi
3. 5008/ Shri Mangaldas Kalidas 15.06.1973 Lecturer (1) Again as Lecturer on 2016 Patel 31.12.1985 (2) Reader on 06.09.1990 (3) Professor on 07.09.1998
4. 5009/ Shri Arvindkumar 24.06.1971 Lecturer (1) Principal on 11.01.1985 2016 Devchand Shah
5. 9606/ Lalchand Ramchand 17.05.1971 Lecturer (1) Principal on 23.08.2002 2016 Mehta
6. 9629/ Shri Pravinchandra L. 13.07.1964 Demon- (1) Junior Lecturer on 2016 strator Farasram 01.01.1973 (2) Lecturer on 01.04.1977 (3) Principal on 22.09.2004
7. 10822/ Shri Gulamhusen 01.12.1980 Lecturer (1) Reader on 09.03.1990 2016 Ahmed Pandor (2) Professor on 07.09.1998
8. 12378/ Shri Satishchandra 1963 Lecturer (1) Principal on 18.,07.1996 2015 Balshankar Vora (2) Vice Chancellor on 24.12.1996
9. 8756/ Shri Goroor 02.09.1970 Lecturer (1) Reader on 23.11.1980 2016 Shrinivasan (2) Professor on 19.07.1988 Parthasarathy 10 8757/ Shri Vishwanath 02.07.1975 Temporary (1) Lecturer on 05.12.1975 2016 Lecturer Anantramiah (2) Reader on 20.06.1984 Bangalore (3) Professor on 20.03.1992 11 8758/ Shri Punamchand 04.01.1968 Senior (1) Lecturer on 17.07.1972 2016 Instructor Natverlal Sutaria (2) Reader on 22.02.1984 (3) Professor on 11.03.1996 12 8760/ Shri Satish Kantilal 05.07.1980 Lecturer (1) Reader on 01.02.1984 2016 Shah (2) Professor on 23.04.1998 13 8761/ Shri Arvindkumar 08.09.1981 Lecturer (1) Reader on 09.05.1994 2016 Ranchhodlal Shah 14 8762/ Shri Shankar 26.11.1981 Lecturer (1) Reader on 02.07.1990 2016 Ganapathi (2) Professor on 07.09.1998 15 8763/ Shri Jamanadas Ratilal 25.07.1978 Lecturer (1) Reader on 03.10.1988 2016 Patadia (2) Professor on 07.09.1998 Page 6 of 65 HC-NIC Page 6 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER 16 8764/ Shri Kalhans Harilal 03.01.1966 Curator (1) Assistant Lecturer on 2016 Patel 01.07.1967 (2) Lecturer on o15.06.1972 (3) Reader on 31.03.1985 (4) Professor on 17.11.1992 17 8766/ Shri Vijaykumar 14.08.1970 Senior (1) Lecturer on 24.01.1974 2016 Instructor Karshanbhai (2) Reader on 20.02.1980 Mahyavanshi (3) Professor on 14.07.1997 18 9602/ Shri Narottamdas 28.07.1966 Senior (1) Lecturer on 27.07.1972 2016 Instructor Bavabhai Parmar (2) Reader on 22.02.1984 (3) Professor on 11.03.1996 19 9604/ Shri Jayshree Basu 13.12.1978 Lecturer (1) Reader on 05.02.1986 2016 (2) Professor on 07.09.1998 De 20 9607/ Shri Vishwanatha 03.10.1977 Lecturer (1) Reader on 01.10.1988 2016 Rama Karanth (3) Professor on 02.08.2001 21 9609/ Shri Sureshchandra 07.09.1967 Assistant (1) Lecturer on 21.07.1973 2016 Lecturer Maneklal Desai (2) Reader on 30.01.1985 (3) Professor on 07.08.2001 22 9627/ Shri Vinu Hasmukhlal 10.01.1964 Senior (1) Lecturer on 01.04.1972 2016 Instructor Kapadia (2) Reader on 18.03.1981 (3) Professor on 23.03.1992 23 8043/ Smt. Vimala 08.07.1958 Tutor (1) Lecturer on 02.07.1963 2016 Rangaswamy (2) Reader on 06.06.1983 (3) Professor on 30.06.1993
5. This Court has heard Shri Jayraj Chauhan, learned counsel appearing on behalf of Shri M.M. Desai, learned counsel appearing for the petitioners and Ms.Manisha Lavkumar, learned Government Pleader appearing on behalf of the respondentState. This Court has also taken into consideration various authorities pressed into service by both the sides.
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6. At the outset, the decision rendered by the Division Bench of this Court in the case of Bhuprendrasinh Vallabhdas Chudasama (supra) requires a reference, wherein the respondent No.1, who was the original petitioner before the learned Single Judge, joined the college as a Lecturer on July 16, 1987 and retired on attaining the age of superannuation with effect from June 14, 2009. He worked as a Tutor with P.D. Malvya College, Rajkot from June 27, 1968 to November 17, 1969 and with Jasani Arts College, Rajkot, from June 15, 1972 to June 30, 1975. The said respondent No.1 claimed pensionary benefits as per the Government Resolution dated October 15, 1984, with was made applicable with effect from April 01, 1982. It was a case of the original petitioner therein that the said Government Resolution was applicable to all Teaching and NonTeaching Staff of the University under the Education Department and affiliated and aided nongovernment colleges in Gujarat. The said petition was opposed by the appellantState on the ground that the original petitioner did Page 8 of 65 HC-NIC Page 8 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER not fill in option form as per the Government Resolution dated October 15, 1984, when he joined the services and he was paid retirement dues after counting his services from July, 1987; and he also got the benefit of Central Provident Fund (CPF) for past services. The Court after detailed consideration of Government Resolution dated October 15, 1984 and the Revised Pension Rules, 1950s, contained in Appendix XIVC to Bombay Civil Services Rules, Volume II, as amended from time to time, and also the Government Resolution dated January 01, 1972, held that a member of the staff recruited on or after April 01, 1982, shall automatically be governed by the said scheme and such staff will not be allowed to opt for CPF. Therefore, all the employees recruited on or after April 01, 1982, shall automatically be governed by the Pension Scheme under the G.R. dated October 15, 1984 and only those employees who were recruited prior to April 01, 1982, or those who have retired on or after April 01, 1982, but prior to the date of the issuance of the Government Resolution dated October 15, 1984, Page 9 of 65 HC-NIC Page 9 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER were required to exercise the option in respect of continuation in CPF or to go under the pension as per the Government Resolution dated October 15, 1984. The Court in the clear terms held, "Under the circumstances, as such the employee who was recruited after 01.04.1982 was not required to exercise any option as there was no such need under the G.R. dated 15.10.1984 to exercise such option by such employees who are recruited after 01.04.1982. Therefore, the contention of the learned Government Pleader that the original petitioner was required to exercise option for pension and as at the time of joining original respondent No.4 College i.e. in the year 1987, he did not give any option and therefore, the petitioner is not entitled to the pension under the G.R. dated 15.10.1984 cannot be accepted and is hereby rejected."
6.1 On fair reading of the entire Government Resolution dated October 15, 1984, it is observed by the Division Bench in the said decision, "any staff and/or employee of the University under the Education Department and Page 10 of 65 HC-NIC Page 10 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER in affiliated and aided nonGovernment Arts, Science and Commerce Colleges in the State, appointed/ recruited after 01.04.1982 shall automatically be governed by the G.R. dated 15.10.1984 and shall be entitled to the pension scheme automatically and they are not required to give any option."
6.2 The Division Bench also on interpreting Clause 6 of the Government Resolution dated October 15, 1984, held and observed that all previous services whether temporary, officiating or permanent, either in one or more than one nongovernment aided colleges, University Department, Higher Secondary School, who were being paid Grantinaid from Government, shall be taken into account for computing the length of qualifying service for pension under the said scheme.
7. Since there was no implementation of the said decision of the Division Bench, the original petitioner preferred Miscellaneous Civil Application No.708 of 2015 before this Court and Page 11 of 65 HC-NIC Page 11 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER thereby, the original petitioner was already paid the pension and gratuity implementing the order of the Division Bench. Thereafter, Special Leave to Appeal (C) No.22438 of 2016, was preferred before the Apex Court, wherein the Apex Court granted leave to appeal and converted the same into Civil Appeal No.531 of 2017, however, in the lead matter, no stay has been granted and the order has been implemented as mentioned hereinbefore.
8. Prior to the said decision, Special Civil Application No.29641 of 2016, was preferred. The learned Single Judge (Coram : Anant S. Dave, J.) allowed the petition. Aggrieved by the said order, the respondent therein preferred Letters Patent Appeal No.1151 of 2008 before the Division Bench of this Court, which ultimately came to be disposed of vide order dated September 08, 2014. It is also required to be noted that Miscellaneous Civil Application No.2397 of 2008 preferred therein also came to be decided on September 08, 2014. Even the Special Leave to Petition bearing No.5587 of 2015 came to be Page 12 of 65 HC-NIC Page 12 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER preferred by the State, which also came to be rejected vide order dated April 01, 2015.
9. Another petition bearing Special Civil Application No.12214 of 2005 was preferred by an identically situated Lecturer, who changed the college after April 01, 1982. This Court (Coram :
C.L. Soni, J.) allowed the petition. The said order of the learned Single Judge came to be challenged before the Division Bench of this Court by way of Letters Patent Appeal No.447 of 2014, which came to be decided on vide order dated April 09, 2014. Thereafter, Miscellaneous Civil Application No.2882 of 2013 for Contempt of Court came to be preferred, which ultimately came to be decided on April 17, 2014. Being aggrieved by the order of the Division Bench, the aggrieved State preferred Special Leave Petition (C) bearing No.4577 of 2015, which came to be rejected vide order dated March 23, 2015.
10. In yet another petition being Special Civil Application No.11473 of 2013 preferred by a Reader of M.S. University, this Court (Coram : Page 13 of 65
HC-NIC Page 13 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER C.L. Soni, J.) dismissed the petition vide order dated July 27, 2015. Aggrieved by the same, she preferred Miscellaneous Civil Application No.914 of 2015, for review. The said application came to be rejected by the learned Single Judge vide order dated April 09, 2015, on the ground that the issues and contentions be pleaded in appeal.
Thereafter, she preferred Letters Patent Appeal No.1093 of 2015 before the Division Bench of this Court, which ultimately came to be allowed by the Division Bench of this Court (Coram : M.R. Shah and G.R. Udhwani, JJ) on July 27, 2015. The State Government sought for review of the said decision of the Division Bench by way of preferring Miscellaneous Civil Application No.2513 of 2015, which came to be rejected. The State subsequently preferred Special Leave Petition (C) No.38313832 of 2016 before the Apex Court. The said petition also came to be rejected by the Apex Court vide order dated March 09, 2016. The petitioner also preferred Miscellaneous Civil Application No.1615 of 2015, for contempt of Court, which came to be decided on September 27, 2016.Page 14 of 65
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11. In the case of Bhanuben Dhakkan v. State of Gujarat and others, the petition being Special Civil Application No.740 of 2013, preferred by her ultimately reached the Apex Court by way of Special Leave Petition (C) No.9018 of 2016, wherein before the Apex Court could grant stay of the order on September 02, 2016, the impugned order of the Division Bench was implemented on July 19, 2016, whereby the amount of GPF and pension was released in her favour.
12. Emphasis on the part of the learned Government Pleader is on the stay granted by the Apex Court in the case of Civil Appeal No.9018 of 2016. This Court notices that it is the only matter in which the stay has been granted by the Apex Court, that also after implementation of the impugned order on July 19, 2016. Thus, considering the case Bhanuben Dhakkan (supra) and also considering the other decisions wherein Special Leave Petitions had been rejected, this Court requires to consider the case of the petitioners.
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13. Further, this Court in the decision rendered on February 03, 2016, in the case of Chandravadan Ramanlal Vora, etc. v. State of Gujarat and others, etc., while dealing with Special Civil Application No.14953 of 2015 and allied matters, decided the identical questions of facts and law, wherein even Letters Patent Appeal bearing No.1023 of 2016 was preferred with condonation of delay application being Civil Application No.8436 of 2016, which came to be allowed and even the Miscellaneous Civil Application No.3097 of 2016 had been preferred, wherein notice has been issued by this Court, making it returnable on February 07, 2016, and the same is pending for hearing and the next date of hearing in July 17, 2017.
14. In the said matter, the petitioner had joined the services as TutorAdministrator and had applied for the post of Lecturer advertised by the Gujarat University and was appointed from June, 1982. Pursuant to such advertisement by University for the post of Reader, he was once Page 16 of 65 HC-NIC Page 16 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER again required to be taken by way of following the selection process and was given an appointment for a period of two years initially. In the very appointment order, it was mentioned that the GPF, pension and other benefits were admissible. Since he joined the service after April 01, 1982, after undergoing due selection process, he was held entitled to have the said benefits flowing from the Government Resolution dated October 15, 1984, which has been made effective from April 01, 1982. As there was no requirement of his giving any option and his entitlement was also held to be automatic so far as his claim of pension was concerned. By making a particular reference of decision in the case of Mahesh H. Bhatt v. Secretary and others, rendered on February 07, 2014, while dealing with Letters Patent Appeal No.1213 of 2010, the benefit of pension came to be granted.
15. Reliance is also placed on the decision of the Rajasthan High Court rendered on November 01, 2012, in the case of Shri Mitthan Lal Gupta v. The Board of Secondary Education, Ajmer and Page 17 of 65 HC-NIC Page 17 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER another, while dealing with S.B. Civil Writ Petition No.3297 of 1998, wherein the issue was to permit the petitioner to change his option from CPF scheme to the pension scheme and to retire him within the framework of the Pension Regulations, as also General Provident Fund Regulations, which were prevalent on July 31, 1998. The petitioner was the employee of the Board of Secondary Education, Ajmer. In the year 1990, the options were called for by the respondentBoard from all the employees as to whether they desire to continue in CPF scheme or intended to switch over to GPF/pension scheme. The petitioner gave his option to continue him in the CPF scheme and after about a lapse of 3 to 4 years, he moved an application to switch over from the CPF scheme to the GPF / pension scheme. The Court answered that the employee who opted for a particular scheme cannot be allowed to switch over unless further options were called for from the employee. The Regulations, 1990, did not permit for further option and, therefore, the prayer to switch over from the CPF scheme to the Page 18 of 65 HC-NIC Page 18 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER GPF/Pension scheme is not permissible. Relying on the decision of the very Court rendered in the case of Hari Kishore Sharma v. State of Rajasthan while dealing with S.B. Writ Petition No.5940 of 2003, the Court held that once the option has been exercised, it would be treated as final and switching over is impermissible.
16. The Apex Court in the decision in the case of Krishena Kumar v. Union of India, reported in (1990) 4 SCC 207, was considering the case of the petitioners who were retired Railway employees who were covered by or had opted for the Railway Contributed Provident Fund scheme. Th only scheme for retirement benefits in the Railways was the Provident Fund Scheme, which was replaced in the year 1957 by the Pension Scheme. Those employees who were already in Railway Service on April 01, 1957, were given an option either to retain the Provident Fund benefits or to switch over to the pensionary benefits on condition that the matching Railway contribution already made to their Provident Fund accounts would revert to the Railways on exercise of the option. Twelve Page 19 of 65 HC-NIC Page 19 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER notifications giving such options were issued. In case of each option, the cutoff date was anterior to the respective dates of announcement and, therefore, the employees who retired after the cutoff date and before the notification date were also made eligible for exercising the option despite the fact that they had already retired in the meantime. The Court held that those employees who did not opt for the pension scheme had ample opportunity to choose between the two viz. the PF scheme or the pension scheme. Each option was given for stated reason related to the options. On each occasion time was given not only to the persons in service on the date of the Railway Board's letter but also to persons who were in service till the state anterior date but had retired in the meantime. In such circumstances, the Court held that the cutoff dates were not arbitrarily chosen but had nexus with the purpose for which the option was given.
Apt it would be to reproduce relevant observations of the said decision, which read under :
Page 20 of 65
HC-NIC Page 20 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER "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 cutoff 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 finally crystallised 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 Page 21 of 65 HC-NIC Page 21 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER 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 submissionappears to have been substantiated by what has been stated by the successive Pay Commission. 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 Cl. 3.1 of the 12th option does not arise.
35. It would also appear that most of the petitioners before their filing these petition had more than one opportunities to switch over to the pension scheme which they did not exercise. Some again opted for P.F. scheme' from the Pension Scheme.
36. Mr. Shanti Bhushan then submits that the same relief as is being canvassed by the petitioners herein has been upheld by this Hon'ble Court by dismissing the SLP No. 5973/88 of the Government in the case of Union of India v. Ghansham Das and others against the judgment of the Central Administrative Tribunal, Bombay. The Tribunal had held the same notification as were impugned herein to be discriminatory Page 22 of 65 HC-NIC Page 22 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER and had directed that a fresh option be given to all P.F. retirees subject to refund of the Government contribution to Provident Fund received by adjusting it against their pensionary rights. Similarly, it is submitted, in a Rajasthan case, both the single Judge and the Division Bench have held that all the retirees would have to be given a fresh option as the notification giving the option only to some retirees are clearly discriminatory. This view has, it is urged, again been upheld by this Hon'ble Court by dismissing the Special Leave Petition No. 7192/ 87 or the Government by order dated 11887.
37. We have perused the judgments. The Central Administrative Tribunal in Transferred Application No. 27/ 87 was dealing with the case of the petitioners' right to revise options during the period from 1469 to 14772 as both the petitioners retired during that period. The tribunal observed that no explanation was given to it nor could it find any such explanation. In State of Rajasthan v. Retired C.P.F. Holder Association, Jodhpur (1987 (1) Rajasthan LR 353), the erstwhile employees of erstwhile Princely State of Jodhpur who after becoming government Servants opted for Contributory Provident Page 23 of 65 HC-NIC Page 23 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER Fund wanted to be given option to switch over to Pension Scheme, were directed to be allowed to do so by the Rajasthan High Court relying on Nakara (AIR 1983 SC 130) which was also followed in Union of India v. Bidhubhushan Malik (1984) 3 SCC 95: (AIR 1984 SC 1177), subjectmatter of which was High Court Judges' pension and as such both are distinguishable on facts.
38. That the Pension Scheme and the P.F. Scheme are structurally different is also the view of the Central Pay Commissions and hence ex gratia benefits have been recommended, which may be suitably increased."
17. The Delhi High Court in the decision rendered on August 07, 2008, in the case of Prof.A.K. Sharma and others v. S.U.O.I. and another, while dealing with WP(C) No.842 of 2003, was dealing with the issue of restraining the respondentUnion of India from interfering with the respondentSchool in dealing with the request of the petitioners for switching over from CPF scheme to GPFcumPension scheme. It is the case of the petitioners that they joined the respondentSchool where the Contributed Provident Page 24 of 65 HC-NIC Page 24 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER Fund scheme was in vogue and there was no pension scheme for the benefit of the employees in the school. On recommendation of the 4th Central Pay Commission, the pension scheme was introduced, which was adopted by the respondentSchool, which recommended that all the Contributed Provident Fund beneficiaries in service on January 01, 1986, should be deemed to have come over to Pension Scheme on that date unless they specifically opt out to continue under the CPF scheme. Thus, the option was to be exercised to continue in the CPF scheme and switching over to the pension scheme was by way of such recommendation.
The option to continue to the Contributed Provident Fund was exercised by the petitioner, who later on realised that the pension scheme was better than CPF and, therefore, such a request of the petitioner for changing over their options from the CPF scheme to the Pension Scheme was placed for consideration before the Executive Committee of the respondentSchool, which resolved to Page 25 of 65 HC-NIC Page 25 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER recommend to the Ministry of Human Resource Development, to allow the members of the faculty and staff for changing over their options from the CPF Scheme to the Pension Scheme, which was turned down by the Technical Section. This was challenged as an act of arbitrariness. The question was as to whether the petitioner who had consciously exercised the option to continue with the CPF can be allowed to exercise the second option to switch over from the CPF to the pension scheme. The Court held that by Office Memorandum dated May 01, 1987, a legal fiction was created and thus, when the employee continues to opt for Contributed Provident Fund, he would not become a member of the General Provident Fund scheme, otherwise they would switch over from CPF to Pension Scheme. Some of the petitioners before the Delhi High Court did not give their option and, therefore, in their case, the Court held that a legal fiction is created allowing them to switch over the pension scheme. There were made to continue with CPF at a later stage. However, the Court held that if they themselves have Page 26 of 65 HC-NIC Page 26 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER chosen the CPF scheme, the question of their reverting to CPF would not arise.
It would be appropriate to reproduce relevant observations of the said decision, which read under :
"8. The OM dated 01.05.1987, which is subject matter of consideration in the present petition, came for consideration before the Hon'ble Supreme Court in a batch of petitions titled Krishena Kumar Vs. UOI & Ors. AIR 1990 SC 1782 wherein it was held as under : "The option given to the Railway employees covered by WP(C) No. 842/2003 Page No.9 of 13 Provident Fund Scheme to switch over to the pension scheme with effect from a specified cutoff date would not be violative of Article 14 of the Constitution. It was never required to be decided in 1983(2) SCR 165 that all the retirees formed a class and no further classification was permissible. In case of pension retirees who are alive the Government has a continues obligation and if one is affected by dearness the other may also be similarly affected. In case of P.F. Retirees each one's rights having finally crystallized on Page 27 of 65 HC-NIC Page 27 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER 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. 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 would be final. Options were exercisable vice verse. 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 was substantiated by what has been stated by the successive pay commissions. The 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 giving option would not arise."
9. A perusal of the judgments of the Supreme Court in S.L. Verma's case and also in Krishena Kumar's case (Supra) would clearly show that the Supreme Court has taken a view that the option under the OM dated 01.05.1987 exercised by the employees to continue with the CPF Scheme was to be treated as final and cannot be allowed to be changed by permitting second option. In the Page 28 of 65 HC-NIC Page 28 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER present case, the petitioners were admittedly given option to switch over from the CPF Scheme to the Pension Scheme even before the option was given to them vide OM dated 01.05.1987. Before that the petitioners were given option to opt either for the GPF Pension Scheme or CPFsum Gratuity Scheme w.e.f. 01.04.1981 and thereafter vide OM dated 01.05.1987. The petitioners by their conscious and positive act opted to continue with the CPF Scheme. In terms of para 3.6 of the OM dated 01.05.1987, the option so exercised by them became final and cannot be allowed to be changed after the cut off date i.e. 30.09.1987 mentioned in the above referred OM. The examples of the employees of BIS, employees of Delhi University and the employees of IITs (Kanpur, Roorkie, Mumbai & Kharagpur) referred and relied upon by the petitioners are not applicable in the present case because in all these cases, the decision to allow the second option to the employees of the said organizations was taken by the institute in which the employees were working and the institute had taken upon themselves to bear the extra financial burden for payment of pension to those to whom the benefit of second option was extended. The Government of India has taken a categorical stand that it did not Page 29 of 65 HC-NIC Page 29 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER approve for extending the second option to switch over from the CPF Scheme to the Pension Scheme either to the employees of BIS or to the employees of Delhi University or the employees of IITs. According to the Government of India, the benefit of second option granted to those employees was irregular and the Government of India was not a party to the same. How in such a situation, the petitioners can seek reliance or claim parity with the employees of the above referred institutes. This Court is of the opinion that the matter relating to switching over from the CPF Scheme to the Pension Scheme has financial implications and therefore falls in the category of Policy matters of the Government. There are any number of judgments wherein it has been held that the Court cannot compel the Government to change its Policy which involves financial burden on it. Reliance is placed upon the judgments of the Supreme court in Ekta Shakti Foundation Vs. Govt. of NCT of Delhi reported as (2006) 10 SCC 337 and Union of India and Ors. Vs. Tejram Parashramji Bombhate & Ors. reported as (1991) 3 SCC 11. Since in the present case, respondent No. 1 (Ministry of Human Resource Development) has rejected the recommendations of respondent No. 2 school for permitting the petitioners to switch Page 30 of 65 HC-NIC Page 30 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER over from the CPF Scheme to the Pension Scheme, the benefit of exercising the second option prayed for by the petitioners cannot be extended to them.
10. I also do not find any merit in the argument advanced on behalf of the petitioners that respondent No. 2 school itself is competent to extend the benefit of allowing the petitioners the second option to switch over from the CPF Scheme to the Pension Scheme. The petitioners have not denied either in their pleadings or during arguments that respondent No.2 school is fully funded by the Government of India and therefore any matter involving financial implications would require approval of the Government of India. Even clause 6 of the Memorandum of Association of respondent No. 2 school provides that if on the winding up or dissolution of the school, there shall remain, after the satisfaction of all its debts and liabilities, any property whatsoever, the same shall not be paid to or distributed among the members of the School or any of them, but shall be dealt with in such a manner as the Government of India may determine. This strengthen my conclusion that respondent No. 2 of its own cannot allow the petitioners to exercise the second option for changing over from the CPF Scheme Page 31 of 65 HC-NIC Page 31 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER to the Pension Scheme unless the same is sanctioned by the Government of India."
18. The other decision is of the Apex Court rendered in the case of Union of India and others v. M.K. Sarkar, reported in (2010) 2 SCC 59, wherein the respondents before the Apex Court joined the Railway service on February 10, 1947. He was a subscriber to the CPF scheme. The Railways introduced the pension scheme vide Railway Board's letter dated November 16, 1957, whereby those who entered Railway service on or after November 16, 1957, were automatically governed by the pension scheme. Those employees who were in service as on April 01, 1957 and those who joined between April 01, 1957 and November 16, 1957, were given an option to switch over to pension scheme instead of continuing under the CPF scheme. Those who did not opt for pension scheme were further given opportunities to exercise option, whenever the pension scheme was liberalised or made more beneficial. Under the terms of the option, a retired Railways employee who had opted for pension scheme had to Page 32 of 65 HC-NIC Page 32 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER return the Government's contributions to the provident fund. The options were given on eight occasions between the years 1957 and 1974 and the respondent did not opt for pension scheme and continued with CPF scheme. Eventually he took voluntary retirement with effect from October 15, 1976. On the date of his retirement also, the eighth opportunity to seek pension scheme was open, but he did not opt for the same. After more than 22 years of his retirement, he made a representation on October 08, 1998, requesting to extend him the said benefit.
The petitioner showed his willingness to refund the amount received by him under the CPF scheme. Since his request was turned down, he was before the Tribunal and thereafter, the matter went up to the Apex Court. The Apex Court held that having enjoyed the benefit of the CPF scheme for more than 22 years, the respondent could not seek switch over to pension scheme which would result in the respondent getting in addition to the provident fund. Even on merits, the Court relied upon the decision of the Apex Court in the Page 33 of 65 HC-NIC Page 33 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER case of Krishena Kumar (supra), wherein the Court held that the 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.
Necessary it would be to reproduce relevant observations of the said decision, which read under :
"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 cannot be considered as furnishing a fresh cause of action for reviving the 'dead' issue or timebarred 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.Page 34 of 65
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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 'stale' 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 v. Union of India, 1990 (4) SCC 207 : (AIR 1990 SC 1782), 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 Page 35 of 65 HC-NIC Page 35 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER of parity. Therefore, the respondent who did not exercise the option available when he retired in 1976, was not entitled to seek an 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 twoJudge Bench of this Court in Union of India v. 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 Page 36 of 65 HC-NIC Page 36 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER 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 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 Page 37 of 65 HC-NIC Page 37 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER 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 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, Page 38 of 65 HC-NIC Page 38 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER 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 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.
23. This Court considered the meaning of 'notice' in Nilkantha Sidramappa Ningashetti v. Kashinath Somanna Ningashetti etc. [AIR 1962 SC 666]. This Court held :
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HC-NIC Page 39 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER "We see no ground to construe the expression 'date of service of notice' in Col. 3 of Art. 158 of the Limitation Act to mean only a notice in writing served in a formal manner. When the Legislature used the word 'notice' it must be presumed to have borne in mind that it means not only a formal intimation but also an informal one. Similarly, it must be deemed to have in mind the fact that service of a notice would include constructive or informal notice. If its intention were to exclude the latter sense of the words 'notice' and 'service' it would have said so explicitly."
24. Learned counsel for the respondent lastly submitted that one K.V. Kasturi who had retired in 1973, was granted the benefit of exercising the option by an order dated 19.9.1994, and therefore, principles of equality and equal opportunity required that the Railways should give him the option. The Chairman of Railway Board, while rejecting the respondents' representation by order dated 15.5.2004 has clarified that K.V. Kasturi's case was similar to that of D.R.R. Shastri as he had also not been informed of the availability of option.
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25. There is another angle to the issue. If someone has been wrongly extended a benefit, that cannot be cited as a precedent for claiming similar benefit by others. This Court in a series of decisions has held that guarantee of equality before law under Article 14 is a positive concept and cannot be enforced in a negative manner; and that if any illegality or irregularity is committed in favour of any individual or group of individuals, others cannot invoke the jurisdiction on Courts for perpetuating the same irregularity or illegality in their favour also, on the reasoning that they have been denied the benefits which have been illegally extended to others. See :
Chandigarh Administration v. Jagdish Singh, 1995 (1) SCC 745 : (1995 AIR SCW 493); Gursharan Singh and Ors. v. New Delhi Municipal Committee and Ors., 1996 (2) SCC 459 : (1996 AIR SCW 749); Faridabad C.T. Scan Centre v. Director General, Health Services, 1997 (7) SCC 752 (1997 AIR SCW 3716); State of Haryana v. Ram Kumar Mann, 1997 (3) SCC 321 : (1997 AIR SCW 1574), State of Bihar and Ors. v. Kameshwar Prasad Singh and Anr., 2000 (9) SCC 94 : (2000 AIR SCW 2389) and Union of India v.
International Trading Company, 2003 (5) SCC 437 : (2003 AIR SCW 2828).
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26. A claim on the basis of guarantee of equality, by reference to someone similarly placed, is permissible only when the person similarly placed has been lawfully granted a relief and the person claiming relief is also lawfully entitled for the same. On the other hand, where a benefit was illegally or irregularly extended to someone else, a person who is not extended a similar illegal benefit cannot approach a Court for extension of a similar illegal benefit. If such a request is accepted, it would amount to perpetuating the irregularity. When a person is refused a benefit to which he is not entitled, he cannot approach the Court and claim that benefit on the ground that someone else has been illegally extended such benefit. If he wants, he can challenge the benefit illegally granted to others. The fact that someone who may be not entitled to the relief has been given relief illegally is not a ground to grant relief to a person who is not entitled to the relief."
19. Further, the Apex Court in the decision rendered in the case of National Council of Educational Research and Training v. Shyam Babu Maheshwari and others, reported in (2011) 6 SCC 412, while considering an appeal against the Page 42 of 65 HC-NIC Page 42 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER order of the Division Bench of the Rajasthan High Court, Jaipur Bench, dismissing Civil Special Appeal of the appellant. The employees of appellantNCERT were given option to choose either the CPF scheme or the General Provident FundcumPension Scheme. In the year 1977, the respondent opted for the CPF scheme. An office memorandum was issued on June 06, 1985, by the Ministry of Personnel and Training, Administrative Reforms and Public Grievances and Pension (Department of Personnel and Training) intimating the decision of the Government that Central Government employees who had retained the CPF benefits in termed of Rule 38 of the CPF Rules, 1962, or in terms of any other orders issued in that behalf, may be allowed another opportunity to opt for the Pension Scheme as laid down in the Central Civil Services (Pension) Rules, 1972. In the said Office Memorandum dated June 06, 1985, it was made clear that the option was open to those employees who were in service on March 31, 1985 and were retiring from service on or after that date. NCERT issued a Circular Page 43 of 65 HC-NIC Page 43 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER dated July 18, 1985, intimating all concerned that the employees of the NCERT, who had earlier opted for the CPF Scheme, may exercise their option before December 06, 1985 to switch over to the Pension Scheme and such option once exercised will be treated as final.
The respondent claimed to have applied on February 27, 1984, to change over from the CPF scheme to the Pension Scheme, which was rejected in June, 1989. The respondent filed an application before the Tribunal in the year 1995, seeking permission to opt for pension scheme. The Tribunal relying on the decision of the Apex Court in the case of R.Sulbramaniam v. Central Railways, reported in (1996) 10 SCC 72, directed the appellant to declare the respondent as entitled to the benefits of the Pension Scheme with effect from the date of his retirement and fix his pension accordingly. The Court after detailed discussion of various decisions had allowed the the appeal setting aside the orders of the Tribunal, learned Assistant Government Pleader as well as the the Division Bench of High Page 44 of 65 HC-NIC Page 44 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER Court. The Court also distinguished the decision of the Apex Court in the case of R.Subramaniam on facts. In the matter before the Apex Court, the respondent had earlier opted for CPF scheme while in service and he retired way back in the year 1979 and also on his retirement availed the benefit of the CPF scheme.
It would be necessary to reproduce relevant observations of the said decision, which read under :
"7. Learned counsel for the appellant submitted that the Tribunal, the learned Single Judge of the High Court and the Division Bench of the High Court have all relied on the decision of this Court in R. Subramaniam v. Chief Personnel Officer, Central Railways, Ministry of Railways (AIR 1995 SC 983 : (1996) 10 SCC 72 : (1995 AIR SCW 963)) which was rendered on the peculiar facts of that case. He submitted that a Constitution Bench of this Court in Krishena Kumar, etc. v. Union of India and Ors. [(1990) 4 SCC 207 : (AIR 1990 SC 1782)] has clearly held that employees who opt for the CPF Scheme and employees who opt for the Pension Scheme fall into two distinct classes and once an employee opts within the Page 45 of 65 HC-NIC Page 45 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER cutoff date to be under the CPF Scheme, he cannot later on make a request to switch over to the Pension Scheme. He submitted that the decision of the Constitution Bench of this Court in Krishena Kumar (supra) has subsequently been followed in V. K. Ramamurthy v. Union of India and Anr. [(1996) 10 SCC 73 : (AIR 1996 SC 2658 : 1996 AIR SCW 3315)] and Union of India and Ors. v. Kailash [(1998) 9 SCC 721] and in these subsequent decisions this Court has explained that the decision of this Court in R. Subramaniam (supra) was rendered on the particular facts of that case.
8. He further submitted that in any case it will be clear from the language of the O.M. dated 06.06.1985 which was adopted by the NCERT that the option to switch over from the CPF Scheme to the Pension Scheme was available to only those employees who were in service on 31.03.1985 and were to retire from service on or after 31.03.1985 and not to the appellant who was not in service on 31.03.1985 having retired on 31.07.1984.
9. Learned counsel for the respondent, on the other hand, supported the orders of the Tribunal, the learned Single Judge of the High Court and the Division Bench of the Page 46 of 65 HC-NIC Page 46 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER High Court and relied on the decision of this Court in R. Subramaniam (AIR 1995 SC 983 : 1995 AIR SCW 963) (supra).
10. We have carefully perused the decision of this Court in R. Subramaniam (supra) on which reliance has been placed by the Tribunal, the learned Single Judge and the Division Bench of the High Court as well as learned counsel for the respondent and we find that in that case the Central Administrative Tribunal, Bombay, by its order dated 11.11.1987 had directed that Railway employees who had indicated their option in favour of Pension Scheme either at any time while in service or after their retirement and who then desired to opt for the Pension Scheme should be given the benefit of the Pension Scheme. This order dated 11.11.1987 of the Central Administrative Tribunal was challenged by the Union of India in a Special Leave Petition, but the Special Leave Petition was dismissed and a Review Petition was also dismissed by this Court. When the matter came before this Court for the second time in R. Subramaniam (supra) this Court held that the Union of India cannot resist the claim of R. Subramaniam.Page 47 of 65
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11. It is thus clear that in R. Subramaniam (AIR 1995 SC 983 : 1995 AIR SCW 963) (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 (AIR 1995 SC 983 : 1995 AIR SCW 963) (supra) the respondent could be allowed to opt for the Pension Scheme having earlier opted for the CPF Scheme while in service. Admittedly, the respondent while he was in service of NCERT had opted for the CPF Scheme way back Page 48 of 65 HC-NIC Page 48 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER 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 and Ors. (AIR 1990 SC 1782); V.K. Ramamurthy v. Union of India and Anr. (AIR 1996 SC 2658 : 1996 AIR SCW 3315) and Union of India and 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 hereinbelow:
"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 Page 49 of 65 HC-NIC Page 49 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER 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 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."
20. Also, the Apex Court in the decision in the case of Rajasthan Rajya Vidyut Vitran Nigam Limited v. Dwarka Prasad Koolwal and others, reported in (2015) 12 SCC 51, was considering a case of employees of the Rajasthan Vidyut Vitran Page 50 of 65 HC-NIC Page 50 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER Nigam Limited, which introduced the CPF scheme in the year 1972 for the benefit of its employees in exercise of powers conferred under it under the provisions of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952. It also made the Employees Pension Regulations, 1988 and Employees General Provident Fund Regulations, 1988. the employees were given option to exercise their option and a cut off date was fixed. A notice was issued in the year 1989, which stated that the switching over option should be exercised in writing within a period of 90 days from the date of its issue and no request for extension of time seeking review or clarification would be entertained. The employees who did not exercise the clear option within the stipulated period, would be continued to retain the option to which they are entitled.
The respondentemployees did not exercise their option in terms of notice although nearly 2741 employees exercised the switching over option in the year 1989 itself. The second notice was also issued giving 45 days' time for Page 51 of 65 HC-NIC Page 51 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER the purpose of switching over the option. It was published in Hindi language and, therefore, around 31,217 employees who could not exercise the option opted for their option. Likewise, several other notices up to eighth and final notice dated February 04, 1997, was published by the RSEB. Eventually, on March 12, 1999, it was communicated to the employees that several opportunities have been given to switch over and, therefore, it did not then allow further switching over option.
A challenge was made by the employees to such a decision, as they were not permitted to switch over option after the options were granted to them so many times.
The relevant observations of the said decision needs reproduction, which read under :
"58. When the Pension Regulations and the GPF Regulations are read together, the necessary conclusion is that an employee must give his option for either continuing to be a member of the CPF Scheme or to switchover to the Pension and GPF Regulations. This option has to be exercised Page 52 of 65 HC-NIC Page 52 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER within a period of 90 days from the cutoff date, that is, 28th November, 1988. But the RSEB, in its wisdom, chose to extend the time for exercising the switchover option over a period of 8 years by giving several opportunities to the employees through its notices. The right of an employee to switch over was, therefore, limited in time by the Pension and GPF Regulations. However, administrative orders issued by the RSEB from time to time extended the period for exercising the option. No employee had any inherent right to either demand an extension of the period for exercising the switchover option or claim a right to exercise the switchover option at any time prior to his retirement, and no such right has been shown to us.
59. But, learned counsel for the respondents finally submitted that pension is not a charity or a bounty and an employee is entitled to earn his pension. There can be no doubt about this proposition but when two schemes are available to an employee, one being the CPF Scheme and the other being the Pension Scheme, it is for the employee to choose the scheme that he feels more comfortable with and appropriate for his purposes. No employee can switchover back and forth from one scheme to another as per Page 53 of 65 HC-NIC Page 53 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER his convenience. Once an employee has chosen to be a part of a particular scheme, he continues to remain a member of that scheme unless an option to switchover to another scheme is given to him.
60. Insofar as the present appeals are concerned, the respondents who are members of the CPF Scheme were given several opportunities of switchingover to the Pension Scheme and the GPF Scheme under the Pension Regulations and the GPF Regulations respectively but they chose not to do so. The question whether under these circumstances pension is a bounty or a charity becomes completely irrelevant. The entitlement to pension was available to the respondents but they chose not to avail the entitlement for reasons personal to them. Having taken a decision in this regard the respondents cannot now raise an argument of pension not being a bounty and therefore requiring the RSEB to give them another option to switchover to the Pension and GPF Scheme."
21. In the decision of the Apex Court rendered in the case of PEPSU Road Transport Corporation, Patiala v. Amandeep Singh and others, reported in (2017) 2 SCC 766, it was considering an appeal Page 54 of 65 HC-NIC Page 54 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER which had been filed by appellantPEPSU Road Transport Corporation by which the appellant challenged the order passed in Second Appeal preferred by the appellant, which had been dismissed, confirming the judgment and order of the Appellate Court and the trial Court. The employeeplaintiff was working as a Driver with the appellant and statutory regulations were framed, which came into force from January 15, 1992. They were made applicable to the employees of the Corporation who were appointed on or after the date of issue of the Regulations on whole time and regular basis and those who were working immediate before the date of the Regulations and opt for these Regulations. The exercise of option for pension scheme was to be made within six months from the date of issue of the Regulations. Those employees who opted for the Regulations and had obtained advance from the Corporation out of the CPF were required to refund the same. The employeeplaintiff did not submit an option under the 1992 Regulations and attained the age of superannuation on November 30, 2000. After Page 55 of 65 HC-NIC Page 55 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER retirement, the plaintiff was released the entire amount of CPF which was received by the plaintiff; and in the year 2003, he filed Civil Suit No.1044 of 2003 for declaration to the effect that the plaintiff is entitled to pension and commuted pensions and other benefits. The trial Court decreed the suit of the plaintiff vide judgment and order dated March 26, 2005. The aggrieved Corporation filed an appeal which was dismissed by the learned Additional District Judge, Bathinda vide judgment dated August 29, 2005, taking a view that it was obligatory on the part of the defendants to have led cogent reasons that the scheme under the 1992 Regulations was circulated between the employees of the Corporation and they were made to note the same so as to opt within specified period. This was challenged by way of a Second Appeal before the Pubjab and Haryana High Court, which ultimately came to be dismissed on the ground that there was no evidence that pension scheme was circulated within the employees and got noted by them. The very decision was challenged before the Apex Page 56 of 65 HC-NIC Page 56 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER Court, which on due consideration of the record held in favour of the appellant.
It would be apt to regurgitate the relevant observations of the said decision, which read as under :
"12. The employees of the Corporation were governed by the Contributory Provident Fund Scheme prior to the enforcement of the Regulations 1992 w.e.f. 15th June, 1992. The pension scheme was introduced w.e.f. 15th June, 1992. Counter affidavit has been filed in this appeal by Respondent No.1. Copy of the PEPSU Road Transport Corporation Employees/Pension Gratuity and General Provident Fund Regulations 1992 has been brought on record as Annexure R3 by the respondents themselves. A perusal of Annexure R3 indicates that the Regulations have been sent by the Corporation to the following :
"The General Manager, PEPSU Road Transport Corporation, Patiala, Patiala II, Bhatinda I, Bhatinda II, Faridkot, Budhlada, Barnala, Sangrur, Kapurthala, Ludhiana & Chandigarh."
xxx xxx xxx Page 57 of 65 HC-NIC Page 57 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER
22. The above judgment in Dakshin Haryana Bijli Vitran Nigam came for consideration before this Court in PEPSU Road Transport Corporation, Patiala vs. Mangal Singh and others, (2011) 11 SCC 702, in which same Regulations 1992 applicable to the PEPSU Road Transport Corporation came for consideration. In which case facts of one of the cases being Civil Writ Petition No.14562 of 2004 titled as Jagjit Singh v. PEPSU RTC were similar to the present case where respondent did not submit an option within time and after retirement filed a suit for declaration. Facts were noticed in paragraph 13 to 18 to the following effect:
"13. In Civil Appeal No. 3846 of 2010 PEPSU Road Transport Corporation and Another v. Jagroop Singh (hereinafter referred to as "Jagroop's appeal"), the respondent had served the Corporation as a driver and was subscriber of C.P.F. and gratuity. Subsequently, on 15.06.1992, the Corporation introduced the Pension Scheme for its employees and also made the Regulations in order to regulate the said scheme.
14. The Pension Scheme in terms of Regulation 4 of the Regulations envisages the condition for exercise of the option on or before 15.12.1992, by an employee in Page 58 of 65 HC-NIC Page 58 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER order to avail the pensionary benefits under the scheme. Subsequently, the Corporation had also extended this period by three months. It is not in dispute that the respondent had not exercised any option for availing the benefits under the pension scheme.
15. On 30.11.2000, the 8 respondent took premature voluntary retirement. On 08.06.2001, the respondent received all the retrial benefits under the C.P.F Scheme and gratuity without any objection or protest. However, 01.06.2002, after nearly 10years from his retirement, the respondent filed a suit for declaration for the entitlement to pension and other benefits in the Court of Civil Judge Senior Division, Bathinda.
16. The learned Civil Judge had passed the judgment and decree dated 01.03.2006 in favor of the respondent on the ground that the respondent was never informed about the option available under the Regulations and he came to know about this Scheme only at the time of his retirement. The learned Civil Judge further directed the Corporation to release pensionary benefit to the respondent along with interest @9% per annum till the date of realization.Page 59 of 65
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17. Being aggrieved by the judgment and decree dated 01.03.2006, the Corporation filed a Regular Second Appeal in the Court of District Judge, Bathinda, the same was allowed vide Judgment and order dated 27.04.2006 on the ground that respondent is estopped from claiming any pensionary benefit by his act of receiving all the retrial benefits under the C.P.F. Scheme at the time of his retirement and failing to exercise the option in terms 9 of Regulation 4 of the Regulations in order to avail the benefits under the pension scheme.
18. Aggrieved by this order of the Additional District Judge dated 27.04.2006, the respondent filed a Regular Second Appeal in the High Court, the same was allowed vide order and judgment dated 23.12.2008. The High Court has followed its earlier Judgment in Civil Writ Petition No. 14562 of 2004 titled as 'Jagjit Singh v. Managing Director, Pepsu Road Transport Corporation and another' dated 03.12.2008, wherein, the appeal was allowed on the ground that the pension scheme was never circulated nor was informed to the employees of the Corporation and mere nonrefund of the loan taken from the C.P.F. account would not disentitle the employee from claiming pension under the scheme."Page 60 of 65
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25. In view of the above, it is well settled that the notice inviting option need not to be personally served to the employees unless the Regulation or any instruction so provides. The Regulations 1992 which are being considered in the present case had already been interpreted in PEPSU Road Transport Corporation vs. Mangal Singh as noticed above. This Court having already held that Regulations 1992 do not contemplate any personal service of notice to employees the finding in the judgment of the courts below holding otherwise for decreeing the suit of the plaintiff are unsustainable. From the facts of the present case it is clear that although Regulations were in force from 1992, plaintiff retired on 30th November, 2011 and after retirement received CPF benefits without any protest and at no point of time before retirement he has raised any grievance. The benefit which was available to him under CPF scheme was received by the plaintiff, he cannot be allowed to another benefit flowing from the pension scheme which he never opted. Extending benefit of the pension scheme to the plaintiff shall be extending double benefits CPF benefit as well as pension Page 61 of 65 HC-NIC Page 61 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER scheme which was never contemplated by the Regulations. In any view of the matter, the issue in the present case is covered by the judgment in PEPSU Road Transport Corporation vs. Mangal Singh (supra) and we do not propose to take any different view in the matter.
26. Learned counsel for the respondents has also contended that in so far as the outstanding amount of CPF is concerned the said amount could have been deducted by virtue of Regulation 24 and which amount is to be adjusted against deathcumretirement gratuity. In the present case the plaintiff having not opted for pension scheme, the requirement from refunding the advance taken from CPF within six months is not attracted. More so, in the present case as has been stated by the appellant in the written statement in the suit even after retirement an amount of Rs.4999/ was due from the advance taken by the respondents from his CPF amount."
22. This Court is bound by the decisions referred to hereinbefore, however, the ratio decidendi in each matter shall have to be applied on the basis of the facts of the matter on hand. Page 62 of 65 HC-NIC Page 62 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER It is quite clear from various decisions who have been sought to be relied upon by the learned Government Pleader that once the ample opportunity has already been given to the employee to switch over from Contributed Provident Fund to the pension scheme and yet if the employee chooses not to exercise such an option within the stipulated time limit and also enjoys the benefit of Contributed Provident Fund scheme, the Court does not permit belated awareness or insistence on such switching over. However, the facts in the present case are totally different. The petitioners did not fill in the form as per the Government Resolution dated October 15, 1984. It is quite clear from the said Government Resolution that the same was made effective from April 01, 1982. the said Government Resolution would be applicable to all the Teaching and NonTeaching Staff of the University under the Education Department and affiliated and aided nongovernment colleges in the State of Gujarat. As admitted by the respondentState, unlike the regular manner of Page 63 of 65 HC-NIC Page 63 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER promotion, every new post is considered as fresh appointment. Thus, as per the said Government Resolution, those employees who joined the services on or after April 01, 1982, will be automatically governed by the pension scheme. There would not be any requirement for any employee to specifically opt for any option and, therefore, unless show otherwise, the governing of the case of such employees by the said pension scheme was since automatic as per the said Government Resolution, the present group of petitions deserve to be allowed.
23. For the foregoing reasons and taking into consideration the aforementioned decisions of the learned Single Judge and Division Bench of this Court as well as the Apex Court, the present group of petitions succeed and the same are, accordingly, allowed.
22.1 The respondentauthority is directed to grant benefit of pension scheme to all the petitioners in view of Government Resolution October 15, 1984, from the date of their Page 64 of 65 HC-NIC Page 64 of 65 Created On Sun Aug 20 16:08:13 IST 2017 C/SCA/5006/2016 ORDER respective retirement, along with interest at the rate of 9% per annum.
22.2 In case of those petitioners, who have not refunded/repaid the amount of Contributed Provident Fund, only after repayment/refund of such amount of Contributed Provident Fund by the concerned petitioners, in case of such petitioners, the amount of pension shall be paid to the respective petitioner. 22.3 Insofar as the petitioners who have refunded/ repaid the amount of Contributed Provident Fund are concerned, they shall be entitled for interest on the amount of pension from the date of their repaying/refunding the amount of Contributed Provident Fund. Disposed of accordingly. There shall be, however, no order as to costs.
Direct Service is permitted.
(MS SONIA GOKANI, J.) Aakar Page 65 of 65 HC-NIC Page 65 of 65 Created On Sun Aug 20 16:08:13 IST 2017