Gujarat High Court
Balmukund D Bhatt vs Union Of India & 2 on 29 April, 2016
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/7731/2001 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7731 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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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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BALMUKUND D BHATT....Petitioner(s)
Versus
UNION OF INDIA & 2....Respondent(s)
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Appearance:
MR AK CLERK, ADVOCATE for the Petitioner(s) No. 1
MR. PARTH H BHATT, ADVOCATE for the Respondent(s) No. 1 -
2
MRS VD NANAVATI, ADVOCATE for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 29/04/2016
CAV JUDGMENT
1. By way of the present petition which is filed under Article 226 of the Constitution of India, petitioner has prayed that the respondent No.2 be directed to grant approval of switching over of Page 1 of 21 HC-NIC Page 1 of 21 Created On Wed May 04 03:47:19 IST 2016 C/SCA/7731/2001 CAV JUDGMENT the petitioner from C.P.F. Scheme to Pension Scheme and to grant to the petitioner pension and all other consequential benefits on that basis.
2. Heard learned advocate Mr. Abhilash Clerk for the petitioner, learned advocate Mr. Parth H. Bhatt for respondent Nos. 1 and 2 and learned advocate Mrs. V.D.Nanavati for respondent No.3.
3. Learned advocate Mr. Clerk appearing for the petitioner submitted that the petitioner joined the service as Associate Lecturer on 02.01.1970 with S.V.R. College of Engineering and Technology i.e. respondent No.3. Thereafter, he was promoted to the post of Lecturer, Assistant Professor and Professor. It is submitted that after every revision of pay-scales, the employees are given an option to switch over from Contributory Provident Fund Scheme to Pension Scheme since the pay-scale revision can result in substantial change in many financial service conditions and recruitment benefits. It is fairly submitted by learned advocate Mr. Clerk that petitioner was given the option twice in the past but he did not opt for the Pension Scheme at the relevant time, in view of the circumstances prevailing at that time.
4. Learned advocate for the petitioner thereafter submitted that petitioner was again given an option on 01/02.02.1999 to opt for Page 2 of 21 HC-NIC Page 2 of 21 Created On Wed May 04 03:47:19 IST 2016 C/SCA/7731/2001 CAV JUDGMENT pension scheme on or before 31.03.1999. Pursuant to the said circular, the petitioner had opted for pension scheme by his letter dated 04.02.1999. However, the college received a fax message from the Section Officer of respondent No.2 on 02.02.1999 wherein it has been stated that the proposal to allow some of the teaching staff members to switch over to pension scheme who opted for C.P.F. scheme earlier cannot be implemented till the approval of both the Government of India and Government of Gujarat is obtained. The college therefore sent a letter to the respondent on 19.08.1999 requesting them to allow the remaining teaching staff only 7 in numbers to switch over from C.P.F. Scheme to Pension Scheme. It is also requested to grant its approval to switch over of the remaining 7 members of the teaching staff from C.P.F. Scheme to Pension Scheme. Thereafter reminder was also given by the college from time to time. Representation was also made to the Minister. However, on 03.05.2000, respondent No.2 informed the respondent No.3 that under the instructions dated 01.05.1987 the option once exercised is final and therefore the request of some of the employees to switch over from C.P.F. Scheme to Pension Scheme cannot be accepted.
5. Learned advocate Mr. Clerk mainly contended that generally after every pay revision the employees are given an option to switch over from Page 3 of 21 HC-NIC Page 3 of 21 Created On Wed May 04 03:47:19 IST 2016 C/SCA/7731/2001 CAV JUDGMENT C.P.F. Scheme to Pension Scheme. The respondent No.3 - Principal of college therefore stated the said aspect in his communication addressed to respondent No.2. However, in the last pay revision the petitioner was not given an option for switching over from C.P.F. Scheme to pension scheme and though the respondent No.3 had forwarded the petitioner's option to respondent No.2, the same was not accepted by the respondent No.1.
6. Learned advocate Mr. Clerk thereafter contended that one Dr. R.S.Shah, Assistant Professor, Mechanical Engineering Department was in C.P.F. Scheme even after the last option was given in 1991. He resigned from service in 1995- 1996. He was paid the contributory provident fund including the contribution of the college. Even thereafter in 1999-2000 he was allowed to exercise option for switching over to pension scheme retrospectively and was allowed to refund the P.F. Contribution of the college and thereby making him eligible for the pension. He was also allowed to join South Gujarat University with continuity of service and all consequential benefits. It is specifically contended that Dr. R.S.Shah has retired and he is receiving pension.
7. Learned advocate Mr. Clerk at this stage has given further details by submitting that Mr. Shah was teaching in S.V.R. College of Engineering and Page 4 of 21 HC-NIC Page 4 of 21 Created On Wed May 04 03:47:19 IST 2016 C/SCA/7731/2001 CAV JUDGMENT Technology, Surat - respondent No.3 along with the petitioner. However, thereafter he went to South Gujarat University on 15.11.1995 and retired from South Gujarat University on 29.05.2000 and is getting pension from the Government of India till today under PPO No.DPP/P/23595. Thus, denial of the respondent Nos. 1 and 2 to allow the petitioner to switch over from C.P.F. Scheme to pension scheme is arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India.
8. Learned advocate Mr. Clerk has relied upon the decision of the Hon'ble Supreme Court in the case of H.S.Rajashekara v. State Bank of Mysore and Another, reported in (2012) 1 SCC 285 and submitted that the present petition be allowed.
9. On the other hand, learned advocate Mr. Parth Bhatt appearing for the respondent Nos. 1 and 2 has opposed this petition and mainly contended that respondent has not gone beyond his power but as per the provisions of OM No.4/1/87-P.1 C-1 dated 01.05.1987, once the employee exercise his option to stay with CPF Scheme, the same cannot be changed to P.F. Scheme and under paragraph 3.6 of the said OM, the option once exercised is final. Therefore, as per the provisions contained in the said OM the request of the petitioner is denied and therefore it cannot be said that respondent Nos. 1 and 2 have committed any Page 5 of 21 HC-NIC Page 5 of 21 Created On Wed May 04 03:47:19 IST 2016 C/SCA/7731/2001 CAV JUDGMENT illegality. Learned advocate has referred to the said OM which is produced on page 68 of the compilation.
10. Learned advocate Mr. Bhatt thereafter submitted that the petitioner did not opt for the pension scheme when options were required to be exercised and the petitioner has changed his mind after having retired from service and therefore this Court may not entertain this petition.
11. It is further submitted by learned advocate Mr. Bhatt that the petitioner has not given the details that under which circumstance Dr. Shah was permitted to switch over from CPF Scheme to Pension Scheme and therefore in absence of such details it cannot be said that the petitioner is also entitled to get the same treatment. He further contended that even if mistake or illegality is committed by the respondent in the case of Dr. Shah as is relied upon by the petitioner, as per the settled legal position such illegality or mistake cannot be perpetuated and petitioner cannot claim negative parity.
12. In support of the aforesaid contentions, learned advocate Mr. Bhatt has placed reliance upon the following decisions:
(i) the decision of the Hon'ble Supreme Court in the case of U.P.State Sugar Corpn. Ltd. And Anr.Page 6 of 21
HC-NIC Page 6 of 21 Created On Wed May 04 03:47:19 IST 2016 C/SCA/7731/2001 CAV JUDGMENT v. Sant Raj Singh And Ors., reported in (2006) 9 SCC 82,
(ii) the decision of the Hon'ble Supreme Court in the case of Union of India & Anr. v. Arulmozhi Iniarasu & Ors., reported in (2011) 7 SCC 397,
(iii)the decision of this Court in the case of Mukesh Balvantray Tripathi v. Ahmedabad Municipal Corporation, reported in 2015(3) G.L.R. 2433 and
(iv) the decision dated 08.10.2015 rendered by the Division Bench of this Court in Letters Patent Appeal No.1252 of 2015.
13. Having heard the learned counsel appearing for the parties and having gone through the material placed on record, it emerges that the petitioner joined services as Associate Lecturer in the year 1970 with S.V.R. College of Engineering and Technology. Thereafter, he was promoted to the post of Lecturer, Assistant Professor and Professor. The employees were to give an option to switch over from Contributory Provident Fund Scheme to Pension Scheme at the time of revision of pay-scales. Such options were given to the petitioner twice in the past. However, he did not opt for the pension scheme at the relevant time. The provision of OM No.4/1/87- P.1 C-1 dated 01.05.1987 specifically provides that once the employee exercised his option to Page 7 of 21 HC-NIC Page 7 of 21 Created On Wed May 04 03:47:19 IST 2016 C/SCA/7731/2001 CAV JUDGMENT stay with CPF Scheme, the same cannot be changed to Pension Scheme. It is also provided in para 3.6 of the said OM that the option once exercised is final.
14. Petitioner has placed reliance upon the circular dated 1/2.02.1999 by which option was given to the petitioner to opt for pension scheme on or before 31.03.1999. It is the case of the petitioner that pursuant to the said circular he had opted for pension scheme. However, the respondent No.2 informed by communication dated 03.05.2000 to respondent No.3 that under the instructions dated 01.05.1987 the option once exercised is final and therefore the request of some of the employees to switch over from C.P.F. Scheme to Pension Scheme cannot be accepted. The petitioner has challenged the said decision mainly on the ground that one Dr. R.S.Shah, Assistant Professor, Mechanical Engineering Department was in C.P.F. Scheme even after the last option was given in 1991. In the year 1999- 2000 he was allowed to exercise option for switching over to pension scheme and was also allowed to refund the P.F. Contribution of the college and thereby making him eligible for the pension.
15. In the case of H.S.Rajashekara (supra) on which the reliance is placed by the learned advocate for the petitioner, the Hon'ble Supreme Page 8 of 21 HC-NIC Page 8 of 21 Created On Wed May 04 03:47:19 IST 2016 C/SCA/7731/2001 CAV JUDGMENT Court has observed in para 10, 11 and 14 as under:
"10. The appeal preferred by the petitioner, assailing the order passed by the learned Single Judge in Writ Petition No. 22324 of 2005, was adjudicated upon with reference to the decision rendered by this Court in Secretary, State of Karnataka & Ors. Vs. Uma Devi & Ors. [supra] even though the same had no relevance to the prayer made by the petitioner. The simple question raised by the petitioner was, with reference to the decision of the Bank in absorbing Shri Devaraju, as a permanent employee. The claim of the petitioner was founded under Articles 14 and 16 of the Constitution of India. Unfortunately, the aforesaid issue was not considered even in the second round of litigation. The matter has now been placed for our consideration, at the hands of the petitioner, through the instance Petition for Special Leave to Appeal.
11. We have given our thoughtful consideration to the claim raised by the petitioner. The learned Single Judge while deciding Writ Petition No. 22324 of 2005 acknowledged, that the petitioner had worked for 292 days from 8.7.1994 to 30.8.1995. That, coupled with the fact, that Shri Devaraju was absorbed as a permanent employee even though he had qualified the SSLC examination, in our view, should have been sufficient to examine the claim raised by the petitioner without reference to the disqualification of having qualified the SSLC examination. xxxx Page 9 of 21 HC-NIC Page 9 of 21 Created On Wed May 04 03:47:19 IST 2016 C/SCA/7731/2001 CAV JUDGMENT
14. In the peculiar facts and circumstances noticed hereinabove, we direct the respondent Bank to absorb the petitioner as a permanent employee in the Sub-Staff cadre on the basis of having rendered service for more than 240 days during 1994-95. The petitioner would not be entitled to any further remuneration for the period hitherto before, other than difference in emoluments, for the service already rendered by him. This decision shall not be treated as a precedent, as the same has been rendered keeping in mind the peculiar facts and circumstances of this case."
16. In the case of Mukesh Balvantray Tripathi (supra) relied upon by learned advocate for the respondent, the learned Single Judge of this Court has recorded the facts of the said case in para 2 as under:
"2. Petitioner on reaching the age of superannuation, retired on 31.7.2010. He joined services of respondent-Corporation on 16.12.1972 as a supervisor. He was eventually promoted on the post of Sluice Valve Inspector in the Water Supply Department of the respondent Corporation. It is his say that he served with the respondent-Corporation for 37 years. It appears that respondent-Corporation gave option to its employees for nearly 8 times from 1983 to 2001. It is the case of the petitioner that such options were also later on accepted upto 24.8.2003. He had given the option for shifting from CPF to GPF scheme twice in writing on 10.12.2002 so also on 14.7.2003. It is the say of the petitioner that the shift was not made at the end of the respondent-Corporation Page 10 of 21 HC-NIC Page 10 of 21 Created On Wed May 04 03:47:19 IST 2016 C/SCA/7731/2001 CAV JUDGMENT which has seriously jeopardized his interest. It is also his say that other similarly situated employees had later on been permitted to shift from CPF to GPF, and therefore, this Court needs to intervene and direct the respondent Corporation who has acted indiscriminately."
16.1.Thereafter, relying upon the decision rendered by the Hon'ble Supreme Court, observed in para 14 as under:
"14. The decision of Apex Court rendered in the case of Pepsu Road Transport Corporation, Patiala vs. Mangal Singh and others reported in 2011(11) SCC 702 also requires consideration at this stage.T he Corporation had challenged the decision of the High Court before the Apex Court and the respondents before the Apex Court had subscribed to the CPF and gratuity schemes. The option given were not exercised well within time. They had already availed retiral benefits arising out of CPF and gratuity without any protest, and thereafter, they made the pensionary benefit under pension scheme after retirement with unreasonable delay of more than 8 years. In such circumstances, the Apex Court denied any benefit to the employees in following manner:-
"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 Page 11 of 21 HC-NIC Page 11 of 21 Created On Wed May 04 03:47:19 IST 2016 C/SCA/7731/2001 CAV JUDGMENT 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 relationship between employee and employer ceases to exist without leaving any further legal right or obligation qua each other.
xxx xxx xxx xxx xxx xxx
56.The Regulation 4 (iii) of the Regulations is a deeming provision to the effect: firstly, if an employee fails to exercise his option within a period of 6 months from the date of issue of these Regulations and; secondly, even on exercise of option, if an employee fails Page 12 of 21 HC-NIC Page 12 of 21 Created On Wed May 04 03:47:19 IST 2016 C/SCA/7731/2001 CAV JUDGMENT to refund the amount of advance taken from employers contribution of the C.P.F. Within 6 months from the date of issue of these Regulations, then it shall be deemed that employee has opted to continue for the existing C.P.F. Benefit. Therefore, the failure on the part of the respondents to opt for the Pension Scheme and refund the advance taken from the employer's contribution of C.P.F. Will disentitle them from claiming any benefit under the Pension Scheme. Therefore, we cannot sustain the Judgment and order passed by the High Court."
16.2.Thereafter, in para 18, it has been held that:
"18. It is not the case of the petitioner that the petitioner was not aware of such circulars or had come to know about it at a later date. It could be noticed that there was no deeming provision under the scheme. In the instant case when the petitioner had already exercised the option at a later date and his having enjoyed his CPF benefit at the time of retirement without any protest, the petition deserves rejection. As already discussed the option was given beyond the stipulated period and that itself is a ground to deny him the benefit even thereafter his CPF fund has already been paid to him on his reaching the age of superannuation. Acceptance to the same without any challenge or protest would further vindicate the stand of the Corporation of denying him the shift to the pension scheme. Petition is dismissed with no order as to costs."
17. The aforesaid decision was challenged by way Page 13 of 21 HC-NIC Page 13 of 21 Created On Wed May 04 03:47:19 IST 2016 C/SCA/7731/2001 CAV JUDGMENT of filing Letters Patent Appeal No.1252 of 2015 in which the Hon'ble Division Bench of this Court observed in para 3, 4, 6 and 9 as under:
"3. The contention raised on behalf of the appellant was that after the option was given by the appellant - original petitioner, subsequently the decision was taken by the Corporation in the year 2005 to accept the option submitted by the employees for shifting from CPF Scheme to GPF Scheme up to 14.8.2003. Therefore, the option submitted by the original petitioner ought to have been considered. It was also submitted that thereafter, at one point of time, upon the representation of the petitioner to the level of Deputy Commissioner, recommendation was made but as the original Special Civil Application was pending before this Court, decision was not taken. He submitted that the learned Single Judge ought to have considered that the petitioner's case was required to be considered by the Corporation for inclusion in the Scheme of GPF and the continuation of the petitioner in the CPF Scheme by the respondent Corporation could be said as arbitrary. The learned Single Judge has not properly considered the said aspect and this Court may consider in the present appeal.
4. We may record that it is an admitted position that the petitioner did not submit option within the outer limit as was fixed by the Corporation. Not only that but the said limit has expired as per circular issued at the relevant point of time. Thereafter the appellant continued in service as the member of CPF Scheme. He also contributed as member of CPF until he Page 14 of 21 HC-NIC Page 14 of 21 Created On Wed May 04 03:47:19 IST 2016 C/SCA/7731/2001 CAV JUDGMENT reached the age of superannuation. Even after reaching the age of superannuation, consolidated amount of CPF is also accepted by him without any protest. After he retired from service on 31.7.2010, the petition has been preferred before this Court in December 2010.
xxx xxx
6. The attempt made by Mr.Vyas, learned Counsel for the appellant to contend that the appellant made representations and such representations were considered, in our view, cannot be considered as valid ground to ignore the conduct of the appellant, more particularly because it was not a matter where the representations remained pending, but positive action was there on the part of the appellant to continue as member of CPF by allowing deduction from his salary as if the member of CPF and such was continued for about seven years from the outer date of filling up the form until he reached the age of superannuation."
xxx xxx
9. We find that in the present case also the petitioner by his implied conduct not only waived the right, but rather abandoned his right for all purposes until he reached the age of superannuation. Therefore, after the retirement the petitioner cannot be heard to say that he is ready to refund the amount if he is treated as member of GPF."
18. In the decision relied upon by learned advocate for the respondent in the case of Page 15 of 21 HC-NIC Page 15 of 21 Created On Wed May 04 03:47:19 IST 2016 C/SCA/7731/2001 CAV JUDGMENT U.P.State Sugar Corpn. Ltd. (supra), the Hon'ble Supreme Court observed in para 22 and 26 as under:
"22. The First Respondent admittedly did not possess the requisite qualification. He merely claimed a higher scale of pay only because Shri B.P. Srivastava and Shri Shyam Sunder Shukla had been paid. It has not been disputed before us that the case of Shri Srivastava stood on different footing and his scale of pay had to be protected in terms of Section 16 of the Act. So far as Shri Shyam Sunder Shukla is concerned, we may proceed on the basis that the Corporation took a wrong decision. The said decision, however, was not questioned by the First Respondent before the High Court. No foundational facts had been placed before the High Court in relation thereto. We would not like to enter into the controversy as to whether his case could have been considered by the Committee or on what basis the Committee considered the cases of seven candidates and granted higher scales of pay to four candidates as the validity thereof is not in question. Assuming that the Corporation was wrong, the same by itself would not clothe the First Respondent even legal right to claim a higher scale of pay. On what basis the Selection Committee selected four employees out of the seven is not known. Three persons admittedly were not selected. If the plea put forward by the Respondent is accepted, these employees also would be entitled to the same scale of pay as given to the said Shri Shukla, although they have been found to be not fit therefor. Educational qualification was made the basis for a valid classification in the matter of payment of Page 16 of 21 HC-NIC Page 16 of 21 Created On Wed May 04 03:47:19 IST 2016 C/SCA/7731/2001 CAV JUDGMENT salary in a particular scale of pay by the Wage Board itself. Only in the year 1989, such a classification was obliterated. The First Respondent had been granted the benefit of the recommendations of the Third Wage Board also. It was a matter of policy decision for the Corporation to consider as to whether a particular category of employees should be taken outside the purview of the pay scales recommended by the Wage Board and place them in a higher scale of pay. We, therefore, cannot accept the contention of Shri Dwivedi that only because no such qualification was prescribed at the time of recruitment, the classification made on that basis would be bad in law. Even otherwise the said contention is not correct as scale of pay was determined by the award of the Wage Board.
xxx xxx
26. Yet again in Union of India v. International Trading Co.,[(2003) 5 SCC 437], this Court opined:(SCC pp.444-45, para 13) "A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short "the Constitution") cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong Page 17 of 21 HC-NIC Page 17 of 21 Created On Wed May 04 03:47:19 IST 2016 C/SCA/7731/2001 CAV JUDGMENT action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case"
Moreover, Article 14 has a positive concept. Nobody can claim equality in illegality.
19. In the case of Arulmozhi Iniarasu (supra) relied upon by learned advocate Mr. Bhatt for the respondent, the Hon'ble Supreme Court has held in para 26 as under:
"26.Lastly, as regards the submission that the action of the appellants is highly discriminatory in as much as some similarly situated persons have been appointed/absorbed as Sepoys, the argument is stated to be rejected. It is well settled that a writ of mandamus can be issued by the High Court only when there exists a legal right in the writ petitioner and corresponding legal obligation in the State. Only because an illegality has been committed, the same cannot be directed to be perpetuated. It is trite law that there cannot be equality in illegality. (Ref.: Sushanta Tagore & Ors. Vs. Union of India & Ors.8; U.P. State Sugar Corpn. Ltd. & Anr. Vs. Sant Raj Singh & Ors.9; State, CBI Vs. Sashi Balasubramanian & Anr.10 and State of Orissa & Ors. Vs. Prasana Kumar Sahoo
11.)"
20. Keeping in mind the decisions rendered by the Hon'ble Supreme Court as well as this Court, if Page 18 of 21 HC-NIC Page 18 of 21 Created On Wed May 04 03:47:19 IST 2016 C/SCA/7731/2001 CAV JUDGMENT the facts of the present case are considered, this Court is of the opinion that twice the options were given to the petitioner to switch over from CPF Scheme to pension scheme. However, it is an admitted position that the petitioner did not exercise the said option and remained in CPF. As per OM dated 01.05.1987 issued by the respondent authority, once the employee exercised his/her option to stay with CPF Scheme, the same cannot be changed to pension scheme and option once exercised is final. As per the decision of Division Bench of this Court rendered in the case of Mukesh Balvantray Tripathi (supra), the petitioner by his conduct not only waived the right, but rather abandoned his right for all purposes until he reached the age of superannuation. Therefore, at belated stage, it is not proper on the part of the petitioner to contend that now he should be allowed to switch over from CPF scheme to pension scheme. The only submission made by the learned advocate appearing for the petitioner is that one Dr.R.S.Shah was in CPF scheme even after the last option was given by him in 1991 and he was allowed to exercise option for switching over to pension scheme. No doubt the details are given by the petitioner with his PPO number but under which circumstances he was permitted to switch over from CPF scheme to pension scheme is not on record. Even Page 19 of 21 HC-NIC Page 19 of 21 Created On Wed May 04 03:47:19 IST 2016 C/SCA/7731/2001 CAV JUDGMENT otherwise, learned advocate Mr. Bhatt appearing for the respondent authority has specifically contended that even if illegality is committed by the authority in one case or even by mistake such permission was given to one employee, such type of benefit cannot be given to the petitioner in view of specific provisions contained in OM dated 01.05.1987. Petitioner is not having any legal right to switch over from one scheme to another once he has declined to exercise such option. Mr. Bhatt is right in submitting that concept of equality is a positive concept and therefore nobody can claim equality in illegality. Thus, a party cannot claim that since something wrong has been done in another case, direction should be given for doing another wrong. It is well settled that a writ of mandamus can be issued by the High Court only when there exists a legal right vested in the petitioner and corresponding legal obligation on State and therefore only because an illegality or mistake has been committed, this Court cannot direct the respondent to perpetuate the said illegality or mistake. Accordingly, the contention of learned advocate Mr. Clerk appearing for the petitioner that similar treatment be given to the petitioner which was given to Dr. Shah, cannot be accepted in the facts and circumstances of the present case and in view of the ratio laid down by the Hon'ble Page 20 of 21 HC-NIC Page 20 of 21 Created On Wed May 04 03:47:19 IST 2016 C/SCA/7731/2001 CAV JUDGMENT Supreme Court.
21. In view of the aforesaid discussion, the petition fails and accordingly it stands dismissed. Rule is discharged.
(VIPUL M. PANCHOLI, J.) Jani Page 21 of 21 HC-NIC Page 21 of 21 Created On Wed May 04 03:47:19 IST 2016