Gujarat High Court
Ramesh Ramcharan Upadhyay vs The Ahmedabad Municipal Corporation on 13 October, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1629 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 7769 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1667 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1664 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1641 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1640 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1666 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1668 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1654 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1637 of 2022
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CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1638 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1657 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1670 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1686 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1642 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1685 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1630 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1671 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1639 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1689 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1687 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1631 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1635 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1673 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1636 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1644 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1682 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1684 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1645 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1681 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1650 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1656 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1633 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1634 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1661 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1674 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1660 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1663 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1659 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1652 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1678 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1648 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1680 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1677 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1655 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 1675 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
RAMESH RAMCHARAN UPADHYAY
Versus
THE AHMEDABAD MUNICIPAL CORPORATION
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Appearance:
MR.SHALIN MEHTA, LD. SENIOR ADVOCATE with MR.HEMANG SHAH,
ADVOCATE for the Petitioner(s) in SCA NO.7769 OF 2022
MR.PRABHAKAR UPADHYAY, ADVOCATE with MR.AAKASH D
MODI(7449) for the Petitioner(s) IN SCA NO.1629 of 2022 and allied matters
MR.KAMAL TRIVEDI, LD. SENIOR ADVOCATE, with MR ANUJ K TRIVEDI
with MR VAIBHAV GOSWAMI, (6251) for the Respondent(s) No. 1,2
MS E.SHAILAJA(2671) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 13/10/2022
CAV JUDGMENT
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1. All these petitions have been filed by the employees working in the Central Workshop of the Ahmedabad Municipal Corporation those who joined service with the Corporation after 01.01.1983. They have been or they are the employees of the Municipal Corporation.
2. Special Civil Application Nos.1629 of 2022 and Special Civil Application Nos.7769 of 2022 were argued as lead matters. The prayers in Special Civil Application Nos.1629 of 2022 read as under:
"(A) Your Lordships may kindly be pleased to issue a Writ of Mandamus and/or any other appropriate writ, order or direction to direct the respondents to grant the benefits of General Provident Fund Scheme (Old Pension Scheme) of the Ahmedabad Municipal Corporation to the present petitioner, which is at Annexure-E (Colly.) to this petition.
(B) Your Lordships my kindly be pleased to direct the present Page 4 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 respondent Corporation to complete all administrative formalities in pursuance to the judgment dated 17.10.2016 passed by this Hon'ble Court in Special Civil Application No.3711 of 2014 and other allied matters for completion of the process required as per the provisions of the EPF Act, 1952 and EPF Scheme, 1952, for exemption from applicability of the EPF Act, 1952."
3. The prayers in Special Civil Application Nos.7769 of 2022 read as under:
"(a) Your Lordships may be pleased to issue a writ of mandamus commanding respondent no. 1 to grant the benefit of the pension scheme as framed by for the petitioners;
(b) Your Lordships may be pleased to issue a writ of mandamus commanding respondents no. 1 and 2 to comply with the directions issued by this Hon'ble Court vide CAV judgment dated 17.10.2016 passed by this Hon'ble Court in Special Civil Application No.3711/14 and cognate matters
(c) Your Lordships may be pleased to issue a writ of mandamus commanding respondent's no. 1 and 2 to submit an application to respondent no. 3 for seeking exemption under section 16 or 17 of Employees Provident Fund & Page 5 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 Miscellaneous Provisions Act, 1952 and thereby establish a "Trust" for managing the funds of the petitioners from which pension would be paid to them;"
4. Facts in brief indicate that a central workshop of the corporation existed under the Corporation which was an independent and a distinct establishment registered under the Factories Act, 1948, dealing with activities of purchase, repairs and maintenance of vehicles of the corporation. The employees of the workshop were governed by the Employees' Provident Fund Scheme, 1952. The rest of the employees of the corporation were governed by the Contributory Provident Fund Scheme. 4.1 On 10.06.1983, a proposal was introduced relating to the General Provident Fund Scheme with effect from 01.01.1983 indicating that those Page 6 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 employees covered by the CPF scheme and who are in employment with the Corporation with effect from 01.01.1983 then opt for GPF scheme. A resolution was passed by the Standing Committee accepting the proposal to frame regulations and implement the GPF scheme with effect from 01.01.1983 and to give an option to either avail the CPF scheme or the GPF scheme. 4.2 On 25.10.1983 the Commissioner of the Corporation issued a circular conveying a decision that with the introduction of the GPF scheme with effect from 01.01.1983 for the employees who are covered under the CPF scheme, those employees who do not want to join the GPF scheme but continue with the CPF scheme should give an undertaking to the concerned head clerk of the department latest by 02.11.1983.
Page 7 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 4.3 On 02.02.1984, a circular was issued providing that the GPF scheme would be compulsory for those employees who have joined the corporation on 01.01.1983 and thereafter and those who have joined before 01.01.1983 and were in service were required to give an option latest by 29.02.1984 as to which of the two schemes i.e. the CPF and the GPF scheme they would like to continue with.
4.4 On 28.03.1984 the scheme detail and the benefits under differences between the two schemes was made expressly available. The Corporation on 31.05.1984 issued a clarification to the effect that all employees who wish to join GPF scheme in place of the CPF scheme must inform the pension division of the Chief Accounts department latest by 30.06.1984. In other words, by the circular of May 1984, those who Page 8 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 wanted to opt out of the CPF scheme and come over to GPF scheme were given a date of exercising such option latest by 30.06.1984. 4.5 On 25.01.1985, the time limit of 30.06.1984 was extended to 31.03.1985. The Employees' Provident Fund Organization on 06.01.1988 addressed a letter to the Central Workshop by which 18 employees working under the EPF scheme were given an exemption so as to enable them to join GPF which was without requirement for creation of any trust. A further circular on 25.01.1991 was issued declaring a procedure that the employees who have retired from service after 01.01.1983 and are alive and those working with the Corporation must exercise their option in writing to join GPF scheme from CPF scheme. A request was made to each of the department to circulate to each of the employees on Page 9 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 11.02.1983, another circular reiterating the information requesting the employees covered under the CPF scheme to exercise the option. On 09.07.1999 a letter was written to the Central Workshop requesting them to submit GPF scheme and examine the possibility of exclusion of establishment under the EPF Act. In view of the demand of the Ahmedabad Municipal Corporation Trade Union, the Director (Solid Waste Management and Services) and Joint Director (Mechanical) made a proposal to the Municipal Commissioner recommending for covering the employees of the Central Workshop under the purview of the GPF scheme by seeking appropriate exemption under the Employees' Provident Fund and Miscellaneous Provisions Act, 1952. On 29.05.2001, the Corporation issued a circular reiterating the procedure for exercising the required option to join the GPF Page 10 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 scheme, providing that those employees who are currently on duty and covered under the CPF scheme and in case of those employees whose monies are being deposited in the Government Provident Fund as per the Factories Act and who are desirous to shift from CPF Scheme to GPF Scheme need to get an exemption permission from the PF Commissioner by 30.06.2001. A petition being Special Civil Application No.4861 of 2002 was filed by the Gujarat Jan Vadi Karmachari Union seeking directions from the Court to extend the benefits of the GPF scheme to the employees working in the Central Workshop of the Corporation and were covered under the EPF Scheme. The petition was disposed of on 18.06.2003 asking the petitioners to make a representation. The union made a representation on 09.07.2003. On 14.08.2003 the Corporation informed the employees that Page 11 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 sufficient opportunities were given to leave CPF and join GPF and the policy of exercising option was discontinued. Accordingly, the corporation rejected the representation of the employees of the workshop on 15.03.2004. The rejection of the representation on 15.03.2004 became a subject matter of challenge by filing Special Civil Application No.4356 of 2004 which on 09.04.2004 was rejected. Some of the employees in the year 2007 filed Special Civil Application Nos.15511 of 2007 and allied petitions. All these employees were covered under the CPF asking for a direction to give another chance to exercise an option to come over to GPF scheme. That representation was rejected by the Corporation on 20.10.2007. The order of rejection of the petition on 09.04.2004 in Special Civil Application No.4356 of 2004 became a subject matter of an appeal before the Division Bench. Page 12 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 By an order dated 01.07.2010, the Division Bench remanded the matter back for reconsideration of the learned Single Judge. The learned Single Judge on remand passed a detailed order on 04.02.2011, by which Special Civil Application No.4356 of 2004 was dismissed. An appeal filed viz. Letters Patent Appeal No.573 of 2007 was also dismissed on 22.04.2011. The petitioners approached the Supreme Court. On 03.12.2013, the Supreme Court while dismissing the Special Leave Petition, observed that there was no reason to interfere with the judgment of the High Court but also indicated that if any proceedings are initiated by individual members seeking redressal of their grievances before an appropriate forum, the same be disposed of accordingly. In light of the order of the Supreme Court, the petitioners filed Writ Petitions in this Court being Special Civil Application No.3711 of Page 13 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 2014 and allied petitions. By a common judgment dated 17.10.2016, it is the case of the petitioners that the High Court issued directions to the Corporation, by which, it was directed that the respondents should consider the case of the petitioners for coming over to the GPF scheme. Pursuant to the directions so issued, the EPFO addressed a letter to the Corporation on 08.03.2017 that the application submitted by the petitioners to the EPFO was incomplete. Correspondences ensued between EPFO and the Municipal Corporation and since there was some delay in taking a decision, the petitioners approached this Court by filing MCA No.1689 of 2017 and other contempt petitions in the year 2017. This Court on 06.05.2019 disposed of the contempt with a liberty to the petitioners to take appropriate action in accordance with law. In the year 2019 the petitioners filed Special Civil Page 14 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 Application No.1071 of 2019 which by an order dated 03.09.2021, were disposed of where the Court directed the respondent Ahmedabad Municipal Corporation to forward the applications of the petitioners after due attestation to the Regional Commissioner, Provident Fund Commissioner, Regional Provident Fund Commissioner who will then decide the entitlement of the petitioners for GPF scheme in accordance with law. On 03.12.2021, in pursuance to the order passed on 30.09.2021, the Regional Provident Fund Commissioner, after hearing all the concerned parties held that the petitioners are otherwise eligible to get any other more beneficial social security benefits including GPF subject to the fulfillment of the conditions of grant of exemptions as envisaged under the the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 and if the Page 15 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 establishment decides to extend such benefits to its employees. A writ of mandamus is sought seeking the grant of benefits of the GPF Scheme as opined by the Regional Provident Fund Commissioner by order dated 03.12.2021 and a prayer is made that the petitioners are entitled to be granted the benefits of the CPF scheme.
5. Mr.Prabhakar Upadhyay and Mr.Aakash Modi appearing for some of the petitioners submitted as under:
5.1 They submitted that the pension scheme of the Ahmedabad Municipal Corporation was sanctioned by the Government of Gujarat. It was clear from reading the pension scheme that all those employees who have been appointed on or after 01.01.1983, the applicability of the pension scheme was automatic and compulsory. Such Page 16 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 employees were not required to give any option.
The Corporation being a statutory authority, it was under a statutory obligation to extend the benefits of the pension scheme to those appointed after 01.01.1983. Admittedly all the petitioners were appointed after 01.01.1983. Since this was the case, the petitioners were not required to give any option to opt for the GPF scheme and they were automatically entitled to be considered for the GPF scheme.
5.2 Mr.Prabhakar Upadhyay and Mr.Aakash Modi would submit that it was clear from the proposal dated 20.03.2001 written by the Director, Solid Waste Management to the Assistant Municipal Commissioner which was a proposal for pending exemption under the EPF scheme that the applicability of the GPF scheme for the 1001 employees of the Central Workshop Page 17 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 had given option to join the GPF scheme. 5.3 Mr.Upadhyay and Mr.Modi in support of their submissions would rely on the decision in the case of State of Gujarat v. Talhans Harilal Patel in Letters Patent Appeal Nos.2259 of 2017 and other allied matters by a judgement dated 02.05.2019. He would submit that in the relevant paragraphs of the judgment it was categorically held by the Division Bench of this Court that in those cases the coming over of the employees to the pension scheme was automatic and therefore the State was obliged to extend such benefits. Financial implications or financial burden was no ground to deny the benefits arising from the pension scheme.
5.4 Mr.Upadhyay and Mr.Modi would submit that the Corporation has adopted a Page 18 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 discriminatory attitude inasmuch as, the benefits of the pension scheme has been extended only to 168 employees of the Central Workshop of the Corporation and similar benefits have not been extended to the petitioners. He would submit that this therefore violates Articles 14 and 16 of the Constitution of India. In support of his submissions, he would rely on the decision in case of Mohammad Sujat Ali v. Union of India reported in 1975 (3) SCC 76. He would rely on paras 23 to 25 of the judgment. Reliance was also placed on the decision in case of All Manipur Pensioners Association v. State of Manipur reported in AIR 2019 SC 3338. Para 8 of the judgment was pressed into service. 5.5 Mr.Upadhyay and Mr.Modi would submit that pursuant to the order passed by this Court in Special Civil Application No.10044 of 2019 Page 19 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 and allied matters on 30.09.2021, applications in the prescribed forms were made to the Provident Fund Authorities. Reading the order dated 03.12.2021 of the Provident Fund Authorities would make it clear that the authorities has decided that the entitlement of the pension scheme of the Corporation in case of the present petitioners.
5.6 Mr.Upadhyay and Mr.Modi would submit that as per Section 16(1)(b) of the Employees Provident Funds and Misc. Provisions Act, 1952, the Act will not apply to any establishment in control of the State Government whose employees are entitled to the benefits of the CPF or pension scheme. The circulars were read indicate that the Corporation had decided to implement the pension scheme with effect from 01.01.1983. Once that pension scheme was Page 20 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 introduced and which was sanctioned by the State Government under Section 16(1)(b) of the EPF and MP Act, 1952, the Act would not applicable to the Corporation.
5.7 It was the case of the petitioners according to Mr.Upadhyay and Mr.Modi that the contention of the respondents that the Central Workshop of the Corporation was registered under the Factories Act and therefore the benefits of the EPF scheme were extended is not correct. In accordance with the provisions of Section 86 of the Factories Act, unless the State Government grants exemption, such workshop shall be considered as a factory. The perusal of the pension scheme indicates that the employees of the workshops were not excluded from the applicability of the scheme. The Ahmedabad Municipal Transport Service, Sewerage Page 21 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 Treatment Plant and the light department of the Corporation though registered under the Factories Act, were given the benefits of the GPF scheme of the Corporation, even in the Central Workshop, benefits of the GPF scheme were given in all the 168 employees, the contention therefore that merely because the Factories Act became applicable and therefore the EPF and MP Act applies is misconceived.
5.8 Learned counsels would submit that as per Section 16(A) read with Section 17(1-A)(a) of the EPF Act, the provident fund trust is required to be established only in a case where the establishment seeks exemption with a view to maintain the provident fund account of the employees. The Corporation has not created any Trust for extending the benefits of the GPF Scheme.
Page 22 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 5.9 The contention of the Corporation in the respectful submission of the advocates that the Corporation will have to incur a huge liability of Rs.1000 crores is misconceived. The Corporation has the statutory obligation to extend the benefits flowing from the pension scheme once it has been extended to several employees of the Corporation. Mr.Upadhyay would rely on the decision of the Supreme Court in case of the State of Rajasthan v. Mahendra Nath Sharma reported in (2015) 9 SCC 540. He would rely on paras 20 and 21 of the decision. Reliance was also placed in the decision in case of Devkinandan Prasad v. State of Bihar reported in 1971 (2) SCC 330. Paras 16 and 34 of the judgment were relied. 5.10 Mr.Upadhyay and Mr.Modi would therefore submit that the Municipal Corporation has not Page 23 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 completed the formalities which were required to be completed and the petitioners have been fighting for their rights for 20 years is not extending such benefits despite the order of the EPFO Authorities and therefore the petitions ought to be allowed.
6. Mr.Shalin Mehta learned Senior Advocate appearing with Mr.Hemang Shah learned advocate for the petitioners would take the Court through the resolutions of the Corporation dated 10.06.1983 and subsequent resolutions and circulars of the Corporation and submit that it has to be noted that the applicability of the pension scheme for the Corporation was compulsory for the employees who have been appointed on or after 01.01.1983 and it is nobody's case that all the petitioners are not so appointed. All the petitioners have been Page 24 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 appointed with the Corporation after 01.01.1983. 6.1 He would submit that by an order dated 06.01.1988, the Regional Provident Fund Organization issued an order whereby, exemption was granted in respect of 18 employees under the Act. He would take the Court through the various orders passed in Special Civil Application No.4861 of 2002 and the orders passed in Special Civil Application No.4356 of 2004, wherein, the request of the Union to extend the benefits of the pension scheme were rejected by an order dated 15.03.2004, the orders of the Division Bench in the Letters Patent Appeal No.573 of 2011 which was carried to the Supreme Court and submit that in light of the decision of the Supreme Court, the petitioners had approached this Court by filing Special Civil Application No.3711 of Page 25 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 2014 and allied matters wherein clarifications and directions were issued in para 30 of the petition which were extensively read by the learned Senior Counsel to submit that a categorical positive findings was recorded by the Court that the petitioners are entitled to the benefits of the GPF scheme.
6.2 He would also take the Court to the letters dated 08.03.2017, 17.03.2017 and 31.03.2017 and submit that the Assistant Provident Fund Commissioner had addressed a letter to the Corporation instructing the Corporation to submit documents after complying with the requisition made on 08.03.2017. The letter of 30.03.2017 also indicate that the Corporation can be granted exemption under Para 27 of the Act. An option was left open for the Corporation to pursue the case under Section 60 of the EPF Page 26 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 and MP Act 1952. A comparative chart was made available to the Corporation by the authorities which explained the benefits of the GPF scheme.
6.3 In contempt petitions, the petitioners were compelled to approach the Court inasmuch as the directions issued by this Court were not complied despite such directions and a positive opinion of the Regional Provident Authorities, the petitioners still were not being extended the benefits of the scheme.
6.4 Mr.Shalin Mehta learned Senior Advocate would submit that the Corporation being a statutory authority, it is under the statutory obligation to extend the benefits of the pension scheme to those employees who have been appointed after 01.01.1983 which is the case of Page 27 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 the Corporation. Reading the judgement in Special Civil Application No.3711 of 2014 and connected matters, it was evident that the Court had issued specific directions in para 13 and when it was an admitted position that all the three schemes were applicable to the Corporation and the circulars which were only for coming over from CPF to the GPF, the petitioners were entitled to be considered for opting over from the EPF to GPF scheme. He would submit that none of the circulars gave an option to the EPF beneficiaries to come over to the GPF and therefore the contention made by the Corporation that the time limit for switching over to the GPF was over was not applicable to the beneficiaries of the EPF scheme. 6.5 Mr.Shalin Mehta would further submit that the Corporation has adopted a discriminatory Page 28 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 attitude by adopting a pick and choose method for extending the benefits of the PF scheme to 168 employees of the Central Workshop. Such action would amount to create a class within a class which even deprecated by several decisions of the Supreme Court.
6.6 Mr.Mehta learned Senior Advocate referring to the decision in Special Civil Application No.3711 of 2014 and to the order dated 30.07.2021 rendered in Special Civil Application No.144 of 2019 dated 30.07.2021 indicated that the petitioners had submitted their application in the prescribed form, all documentary evidences were submitted and therefore, looking to the provisions of Sections 15 of the EPF and MP Act 1952, the pension scheme was applicable to the petitioners as provided in the resolution dated 16.01.1984 and therefore, it was in light of this Page 29 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 that the Regional Provident Fund Commissioner had opined as to the entitlement of the petitioners vide order dated 03.12.2021. 6.7 Admittedly, the GPF scheme was more beneficiary to the petitioners than the EPF scheme and therefore, in light of the directions issued in paras 6 in the case of Special Civil Application No.10044 of 2019 a decision was taken and mandamus therefore was required to be issued to the Corporation to implement the orders. Mr.Mehta would read the relevant paragraphs of the decision rendered by this Court on 17.10.2016 and submit that the language indicated that there was no scope for the Corporation to take a decision otherwise as the Court had specifically directed that the Corporation shall pay and take a decision with regard to the availability of the pension scheme Page 30 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 to the employees of the Central Workshop. In support of his submissions, Mr.Mehta learned Senior Advocate relied upon a decision in the case of University of Delhi v. Smt. Shashi Kiran and others of the Supreme Court dated 10.05.2022 wherein, the Court has held that a direction can be issued to shift the employees to the pension scheme and the stand of the respondents that would be a financial strain on the corporation is misconceived.
7. Mr.Kamal Trivedi learned Senior Advocate for the respondent Corporation taking the Court through the contents of the affidavit in reply would submit that three different schemes were prevalent in the respondent Corporation. Under the EPF Scheme, the employees of the Central Workshop had a deduction of 12% of basic wage + DA from their salary. Combined with the Page 31 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 employer share, the PF account was maintained by the Regional Provident fund Commissioner and on retirement, the employee gets the accumulated amount of the provident fund with interest along with monthly pension etc. 7.1 Under the CPF scheme, applicable to the employees of the rest of the departments of the corporation, a same procedure is followed except that the percentage deduction is 8.33% of the basic wage.
7.2 Under the General Provident Fund Scheme ('GPF Scheme' for short), every month only the employee's share i.e. 10% of the basic wage gets deducted and deposited with the State Government and on retirement it gets accumulated with interest from the State Government. The retired employee in addition to Page 32 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 also gets 50% of the last basic pay every month as pension from the corporation during his or her lifetime and the nominee gets 50% every month as family pension.
7.3 With effect from 1.4.2005 a new pension scheme has been introduced by the Corporation where the corporation deducts 10% of the basic pay plus grade pay payable by way of salaries as the employees share and combines the same with matching amount of employer's share and deposits the same in the national securities deposit scheme.
7.4 Mr.Kamal Trivedi learned Senior Advocate would take the Court through the relevant circulars of the Corporation and submit as under:
(I) There are two sets of Circulars issued by the Respondent Corporation from time to time. In Page 33 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 the first set of the following four Circulars, there was a policy in existence right from 1983, relating to automatic application of GPF Scheme, in the event of an employee covered by CPF Scheme / EPF Scheme not exercising the option, in contrast to the requirement of exercising the option in case of the employees who wanted to continue to be covered by CPF Scheme / EPF Scheme.
(II) After 31.05.1984, the aforesaid policy which was in vogue by virtue of the 4 Communications / Circular referred to above, came to be given a go-bye, vide the following 6 subsequent Circulars starting from Circular No.10, dated 31.05.1984 (pg.229), under which, it was incumbent for all the employees to exercise the option to shift from CPF Scheme / EPF Scheme to GPF Scheme before the stipulated time limit.Page 34 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022
C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 (III) All the employees of the Respondent Corporation, whether recruited prior or subsequent to 01.01.1983, were supposed to exercise their option in writing for shifting from CPF Scheme / EPF Scheme to GPF Scheme. earlier policy relating to automatic application of GPF Scheme, which was brought in force by virtue of the aforesaid first 4 Circulars, had not remained the same under the subsequent 6 Circulars, whereby, while providing so, the time limit for exercising the said option, was extended from time to time.
(IV) The Petitioners are not entitled to claim the benefit of GPF Scheme at present, more particularly when, as aforesaid, the policy of exercising the option for joining GPF Scheme has been discontinued w.e.f. 14.08.2003, vide Circular No.27 dated 14.08.2003 (pg.237) and Page 35 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 since 01.04.2005, what is compulsorily made applicable is NP Scheme.
7.5 Mr.Kamal Trivedi learned Senior Advocate would further extensively read the relevant paragraphs of the oral judgement dated 17.10.2016 and submit that it would be worthwhile to read the relevant observations of the judgement which would indicate that the petitioners did not press the demand for issuance for any directions to the respondent corporation in the Writ Petitions viz. Special Civil Application No.3711 of 2014. Secondly the petitions were disposed of on the basis of the statement and submissions made on behalf of the petitioners and there were only observations and clarifications made by the learned Judge and there were no positive directions issued to the respondent corporation to shift the petitioners Page 36 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 from the EPF Scheme to the GPF Scheme as a matter of right. The only recommendation was that it was open for the petitioners to seek an option to submit applications to the EPF, seeking exemption from the provisions.
7.6 Mr.Trivedi learned Senior Advocate would submit that the petitioners after the decision dated 17.10.2016 in a fourth round of litigation, filed a contempt petition being Misc. Civil Application No.1689 of 2017, reading the order of the Division Bench in the contempt application, Mr.Trivedi would submit that there was a serious disinclination on the part of the Court in initiating any contempt proceedings and therefore, the contempt proceedings were withdrawn and accordingly disposed of. Not being satisfied with these, the petitioners again in a fifth round, filed Special Civil Application Page 37 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 No.10042 and 10713 of 2019 and a decision was rendered on 30.09.2021 and the only direction that was issued was that the respondent no.3 should decide the entitlement of the petitioner for the GPF scheme in accordance with law. 7.7 Mr.Trivedi learned Senior Advocate would submit that on reading the order dated 03.12.2021, passed by the RPFC-respondent no.3 would indicate that no where is it decided that the petitioners are entitled to the GPF scheme. It has merely observed that the petitioners are eligible for getting benefits of the said scheme. This too subject to the condition precedent that the Corporation agrees to allow them to join the GPF scheme. He would submit that the Corporation cannot be compelled to extend the benefits of the GPF scheme to the petitioners as there is a clear observation in the order that Page 38 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 such extension of the benefits can be only if the Corporation is ready and willing to extend such benefits.
7.8 Mr.Trivedi would invite the Court's attention to the affidavit in reply filed on behalf of the Corporation to submit that even the GPF scheme is now discontinued. What has come into play is new pension scheme with effect from 01.01.2005. If the request of the petitioners will be accepted, the Corporation will have to incur a huge liability running in terms of more than Rs.1000/- crores. Several employees were presently governed by the EPF scheme, CPF scheme and the new pension scheme would claim parity with the petitioners and therefore despite the fact that the time limit for exercising the option as handed, the Corporation would be compelled to do so against the provisions and Page 39 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 financial constraints which it could face. 7.9 Mr.Trivedi would invite the Court's attention to the prayers made in the petition and submit that the petitioners have engaged into 6 th round of litigation and they cannot claim parity to the employees who has sought extension on 16.01.1988 because at the relevant time the GPF scheme was in existence and they had so made their willingness expressly available before the cut off date of 14th of August 2003.
7.10 Mr.Trivedi would invite the Court's attention to a speaking order passed by the Corporation on 20.10.2007. In response to the order passed by this Court dated 18.06.2003 in Special Civil Application No.15511 to 15331 of 2007, rejecting the representations made on behalf of the similarly situated employees. The said order has Page 40 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 attained finality since it was not challenged. He would submit that the present petitions have been filed on behalf of 147 employees of whom three have been passed, 61 have already been retired and 83 employees are still with the Corporation and if a mandamus in the nature sought for is given, it would result in a huge financial liability of the Corporation. 7.11 Mr.Trivedi in support of his submissions, would rely on the following decisions:
Sr. Citation Particulars No 1. (1996) 10 SCC 73 V.K. Ramamurthy vs. Union of India 2. (2010) 2 SCC 59 Union of India vs. M.K. Sarkar 3. (2003) 5 SCC 437 Union of India vs. International Trading Co. 4. (2012) 11 SCC Rajasthan State Road Transport 561 Corporation vs. President, Rajasthan Roadways Union 5. (2015) 12 SCC 51 Rajasthan Rajya Vidyut Vitran Nigam Ltd. vs. Dwarka Prasad Koolwal 6. (1998) 4 SCC 117 State of Punjab vs. Ram Lubhaya Bagga 7. (2007) 4 SCC 737 Directorate of Film Destivals vs. Page 41 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 Gaurav Ashwin Jain 8. SCA No.5799 of Karl Marx General Labour Union 2011 (Ahmedabad Municipal Corporation)
vs. Ahmedabad Municipal Corporation
9. LPA No.1245 of Karl Marx General Labour Union 2014 (Ahmedabad Municipal Corporation) in vs. Ahmedabad Municipal Corporation SCA No.5799 of 2011 10 SCA No.132 of Mamta Anjan Mazmudar vs. 2018 Ahmedabad Municipal Corporation 11 LPA No.736 of Ahmedabad Municipal Corporation vs. 2020 Mamta Anjan Mazmudar In SCA No.132 of 2018 12 SCA No.23407 of Jayashreeben Kiranbhai Gandhi vs. 2017 Ahmedabad Municipal Corporation 13 LPA No.760 of Ahmedabad Municipal Corporation vs. 2020 Jayashreeben Kiranbhai Gandhi In SCA No.23407 of 2017 14 SCA No.8735 of B.D.Christian vs. State of Gujarat.
2017 15 SCA No.4869 of G.A.Shete vs. State of Gujarat 2021 16 SCA No.19056 of Ahmedabad Municipal Transport 2019 Service vs. V.S.Maheriya
7.12 As far as the decisions relied upon by the learned Senior Advocate, he would submit that Page 42 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 all these decisions indicate that the Courts did not allow the relief of switching over to the pension scheme in light of they being structurally different and particularly when the Court found that the employees had not exercised the option despite having granted six opportunities. Merely because some of the employees have been extended the benefits, wrongly, cannot be cited as a precedent.
7.13 Mr.Trivedi would submit that the decisions further indicated that the jurisdiction of a Court in interfering with the policy decisions is restricted and it is not within the domain of any Court to weigh the pros and cons of the policy or to scrutinize it and test the degree of its beneficial and equitable disposition and vary the same. Several decisions rendered by this Court considering the same scheme have also been Page 43 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 relied upon which are part of the citations supplied in the separate paper book. 7.14 Mr.Trivedi would submit that the judgement in the case of Mahendranath Sharma (supra) referred to by the petitioner would not be applicable to the case. Even the case of Shashikaran (supra) relied upon by Mr.Shalin Mehta learned Senior Advocate indicated that in the facts of that case, the University had specifically amended the statute by adding Section 28A. He would submit that the employees therein were the deemed to be members of the GPF scheme whereas, in the case of the present Corporation, despite opportunities and extension of cut off dates, options were not exercised, the petitioners sat on the fence for the period of nine years as observed by the order of this Court. The judgement Page 44 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 therefore would not be applicable. Mr.Trivedi would further submit that even the decision in the case of Kalhans Patel (supra) was not applicable to the case of the petitioners. As far as decisions in case of Mohammad Sujad Ali and All Manipur's Pensioners' Association (supra), they were in context of the reasonableness of the cut off dates and creation of two classes, so also was the case in the judgement of Devkinandan Prasad where the facts of the present case are absolutely different. He would therefore submit that the petition deserves to be dismissed.
8. Having considered the submissions made by the learned counsels for the respective parties, the following undisputed propositions on assessment of facts emerged.
(I) The employees, the petitioners of the Page 45 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 present petition were engaged in the Central Workshop of the Corporation which was an independent and a distinct establishment registered under the Factories Act, 1948. The employees working under the workshop were governed by the EPF scheme. Admittedly for the other departments the scheme that governed them was 'CPF Scheme'.
(II) On 10.06.1983 the Municipal Commissioner of the Corporation addressed a letter to the standing committee proposing introduction of the GPF Scheme with effect from 01.01.1983 for those employees who were covered under the CPF scheme. The standing committee accepted the proposal after resolving to frame regulations as required under Section 465 of the BPMC Act. (III) Circular no.36 was issued on 25.10.1983. Page 46 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 Reading the circular indicates that the Corporation took a decision for introduction of the GPF scheme with effect from 01.01.1983 for the employees covered under the CPF scheme with a specific intention that those employees who do not want to join the GPF scheme and what to continue under the CPF will have to give their names latest by 02.11.1983.
(IV) On 02.02.1984, circular No.52 was issued by which calculations were provided and also indicated that the GPF scheme would joined the corporation after 01.01.1983 and for those who joined before 01.01.1983 and are presently in service were expected to give their options latest by 29.02.1984 to the effect as to which of the two streams they would like to continue with. Till that date, till the circular no.71 was issued on 28.03.1984, the policy in vogue was that if the Page 47 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 employees failed to give any option for the schemes, they would automatically be considered as beneficiaries of the GPF scheme.
9. The contention of the learned counsels for the petitioners therefore that all employees appointed after 01.01.1983 would automatically governed by the pension scheme, cannot be read in isolation of the circulars herein below referred to, because on and from 31.05.1984, when the Corporation issued circular no.10 a clarification was issued that all the employees who wish to join the GPF scheme in place of the CPF scheme, must inform the pension division in the accounts department latest by 30.06.1984, failing which they would not be allowed to join GPF. Since the employees made a request for extending the time limit, circular no.65 dated 25.01.1985 was issued extending the time limit for the employees to Page 48 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 switch over to GPF scheme to 31.03.1985.
10.The letter dated 06.01.1988 pressed into service by the petitioners indicating the fact that the benefit of the GPF scheme was in fact given to the 18 employees of the Corporation working in the Central Workshop has to be read in light of the circular dated 25.01.1991. It is not the case of the petitioners that they too had exercised the option. Subsequent circulars of 25.01.1991, 11.02.1983 and 18.08.1988 indicated that the Corporation reiterated its stand that the employees who have retired from service after 01.01.1983 and allied and those employees who are working with the Corporation have to exercise their option in writing to join the GPF scheme from the pension scheme. The contention of the petitioners that these circulars were only effectively for the CPF optees to come Page 49 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 over to the GPF and not for the petitioners under the EPF is also a submission which is misconceived. In pursuance of the demand made by the trade union, the Joint Director made a proposal to the Municipal Commissioner on 20.03.2001 recommending that the employees of the Central Workshop be also brought under the purview of the GPF scheme by seeking appropriate exemption. In light of this, the Corporation issued a circular dated 29.05.2001 requesting and reiterating the procedure of exercising the option specifically provided that even those employees who are currently on duty in whose case monies are being deposited in the Government Provident Fund as per the Factories Act and who are desirous to shift from the CPF scheme to the GPF scheme, must give options by the 30.06.2021.
Page 50 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022
11.It is in light of this outer time limit which expired on 30.06.2021 that the Gujarat Janvadi Karmachari Union filed Special Civil Application No.4861 of 2002, seeking a direction to extend the benefits of the EPF scheme to the employees of the Central Workshop of the Corporation. The petition was disposed on 18.06.2003 directing the petitioners to make a representation. The union made a representation on 09.07.2003. On 14.08.2003, the Corporation by a circular specifically informed the employees that the time limit for exercising options to turn over to the pension scheme had been discontinued. Accordingly, on 15.03.2004 the Corporation rejected the request of the Union to come over to the GPF. Aggrieved by this, the Union once again filed Special Civil Application No.4356 of 2004 which came to be rejected by an order dated 09.04.2004. That order of 09.04.2004 by Page 51 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 which the petitions were rejected was a subject matter of challenge in Letters Patent Appeal No.1376 of 2004. The Division Bench remanded the matter to the Single Bench to reconsider the issue on remand on 04.02.2011 by a detailed order passed in Special Civil Application No.4356 of 2004, the petitions were dismissed.
12.It will be apt to reproduce relevant portions of the orders passed by this Court while dismissing the petition which was filed by the same petitioner as of Special Civil Application No.1629 of 2022, this Court while dismissing the petition observed as under:
"8. Upon the query put by the Court, the learned Counsel appearing for the petitioner, at the initial stage, during the course of submission, had declared that the employees in question are early 1996 appointees, whereas during the course of dictation of the order, the learned Counsel altered the statement and stated that some members are also appointed in the years Page 52 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 1983 to 1989. As such the statement is as vague as anything, without putting material on record and such type of argument, without any support of authenticated evidence cannot be considered. Further, if the correspondence upon which the reliance placed is considered, it appears that they were relating to certain employees, who demanded for shifting of the scheme and the same came to be considered on 25.1.1991. If the employees, who are appointees of 1996 onwards are to be considered, they cannot be said to be similarly situated. Therefore, the alleged ground of discrimination would not be available at all. ...
...
10. Mr.Upadyay, learned Counsel had attempted to contend that as per the circular of the Corporation those employees, who have joined service after 1983 were compulsorily to join GPF and not EPF Scheme and, therefore, the contention is that if any mistake has been committed by the Corporation, the same is required to be rectified.
11. It appears that it is not a policy, which was not known to the petitioners. Even if such policy exists, however, the petitioners, by their own volition, have become members of EPF and has continued for a long period, thereafter the members of the petitioner Union cannot be heard to say that now another Scheme of GPF is more beneficial, Page 53 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 they should be allowed to shift the Scheme. No right cannot be allowed on the ground as sought to be canvassed, more particularly on account of the conduct with open hands throughout by the members of the petitioner Union.
12. The additional aspects in the present case is that the petitioners themselves have allowed being Members of EPF Scheme and deduction from the salary has been made as if the members of EPF Scheme all throughout and once a person is admitted as Member of EPF Scheme, no right is said to have vested in him for shifting of the PF Scheme and more particularly because, at a late stage, one finds another GPF Scheme is to endure better benefits. Once the party has altered his position, he cannot be heard to shifting of the scheme as of right as sought to be canvassed."
13.What is evident from reading these paragraphs that the Court categorically observed as under:
"Further, even if it is considered that some of the employees were of 1983 to 1989 onwards, no material is produced on record to show that those employees, whose grievance is sought to be canvassed at any point of time, during that period of 1991 made any application for shifting of the scheme. If the employee concerned at the relevant point of time had not applied for shifting of the PF scheme and thereafter has allowed themselves to be as members of the Page 54 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 EPF Scheme for a long time i.e. roughly about 14 years if considered from filing of the petition and now about 20 years it cannot be said that they are similarly situated. If the employees concerned are not similarly situated, the ground of discrimination can be said as of non- existence premise."
14.The Court further observed that it is not believable that the petitioners were not aware of the policy. The petitioners, by their own volition. became members of the EPF scheme and continued for a long period and therefore the members of the Union cannot be heard to say that now another scheme of GPF is more beneficial and therefore they should be allowed to shift to such scheme. No right can be allowed on the ground as sought to be canvassed. Reading paras 8 to 12 therefore indicates that at that first point when the petitioners approached this Court, the Court had positively observed that having not opted for the GPF at the relevant Page 55 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 point of time, though being informed, it is not open for them and no right is vested in them from shifting to the GPF scheme at a late stage. The Court particularly observed that once the party has altered his position, he cannot be heard or to shifting of the scheme as of right as sought to be canvassed. The Supreme Court when the decision of the Division Bench a subject matter of scrutiny of the decision of the Single Judge which appeal was dismissed also by the order of the 03.12.2013 while dismissing the SLP observed that there was no reason to interfere with the judgement of the High Court but left it open for the individual members to seek redress before any appropriate forum.
15.It was in light of these facts that Special Civil Application No.3711 of 2014 and allied matters were filed which were disposed of by a common Page 56 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 judgement dated 17.10.2016. It will be apt to reproduce paras 27.4 to 27.9 (pages 113) of Special Civil Application No.1629 of 2022 which read as under:
"27.4 So far as the petitioners contention to the effect that the scheme was made compulsory for employees employed after 1.1.1983, the corporation has tried to counter the said contention on the ground that the said provision was with regard to the employees who are not covered / governed by the Factories Act and the Provident Fund Act whereas the petitioners are governed by the provisions under the Factories Act and the Provident Fund Act and therefore, they were covered under the statutory scheme and consequently, the option was offered.
27.5 Be that as it may, the fact remains that the petitioners remained silent and inactive for almost 9 years and during that period of 9 years, they continued to be the member of statutory scheme. The petitioners have relied on the instances where the Provident Fund Organization granted exemption to about 18 employees of Workshop Department.
27.6 However, in that context, the petitioners conveniently overlook the fact that when the said 18 employees applied for Page 57 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 exemption and when P.F. Organization granted exemption, the petitioners did not submit individual applications seeking exemption from statutory scheme and shifting to the corporations scheme.
27.7 Another relevant aspect which emerges from the corporations reply and submission is that the corporation itself was never opposed to extending the benefit of the scheme to the petitioners. The corporation claims that actually, it was the corporation who thought of framing its own pension scheme and made it available to its employees and that, therefore, there could not be any reason for corporation to not grant / extend the benefit to its own employees in the Workshop Department, however, despite the opportunity to exercise option, the petitioners did not opt for corporations scheme and that, therefore, any fault cannot be found with the corporation. There is some substance and justification in the corporations contention.
27.8 Even if it is assumed that in view of the provisions under the corporations scheme, there was no need to offer opportunity to exercise option (to the employees appointed after 1.1.1983) then also there was nothing in the scheme or in the conduct of the corporation or in the intimation / offer of the corporation which restrained the petitioners from exercising option for the corporations scheme or from intimating the corporation that in view of the provisions under the scheme, it is compulsory for them to the Page 58 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 members of the corporations scheme and that, therefore, they need not exercise option and they should be treated as member of corporations scheme. However, on each occasion (when the corporation offered the opportunity to exercise option), the petitioners remained silent and inactive which amounts to their tacit will to continue with such scheme. The petitioners initiated action after almost 9 years.
27.9 All these aspects would arise for consideration if the petitioners press their demand for direction to the corporation."
16.Reading the decision which is so vociferously pressed into service by the petitioners as a positive mandate for grant of the benefits of the GPF scheme would indicate that the petitioners therein had approached the Court which was a third round. The Court had observed in paras 27.5 that the petitioners had remained silent and inactive for almost nine years and during that period of nine years, they continued to be members of the statutory scheme. The Court further observed that even if the stand of the Page 59 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 petitioners that 18 employees were granted exemption is accepted, there was nothing in the scheme or in the conduct of the Corporation or in the intimation/offer of the Corporation which restrained the petitioners from exercising option for the Corporation scheme or from intimating the Corporation that in view of the provisions of the scheme, it is compulsory for them to be members of the scheme and they need not exercise option. In light of this, it was specifically observed that the petitioners did not press their demand for directions to the Corporation. The directions in para 30 of the decision therefore, and the observations made were to be appreciated in light of these observations and clarifications. The stand of the petitioners therefore that these are directions which are mandatory and positive for the corporation to extend the benefit of the scheme Page 60 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 are misconceived. The petitions were only disposed of on the basis of the statement and submissions with observations and clarifications. No direction was issued to the Corporation to shift the petitioner from the EPF scheme to the GPF scheme as a matter of rule. It was only for the petitioners to submit an option to the Commissioner who would decide accordingly. It is in light of these observations of the coordinate bench that the order of 03.12.2021 has to be read. Admittedly, as contended by the parties that the order need not be read as statute. Reading the order indicates that it was left completely to the discretion of the Corporation to decide whether the option needs to be given to the petitioners to come over to the GPF scheme. It was only the establishment desired to do so and wishes to do so and therefore in light of this that the observation was made that either the Page 61 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 Corporation seek exemption under Section 17 or, it was treated to be exempt under Section 16 of the Act. It is in light of this that the relevant portions of the order which indicate that no positive direction was issued needs to be reproduced. The relevant observations in the order dated 03.12.2021 read as under:
"If the Municipal Corporation decides to confer benefits of GPF to the petitioners it would place the Petitioners at par with such other regular employees of the Corporation. ... ... ..."
"... ... ... if any establishment desires to extend such social security benefits which are more beneficial than those available under the EPF and MP Act, 1992 and related Schemes, Regional Provident Fund Commissioner cannot deny extension of such benefits to the employees. "
"Therefore it is ordered accordingly that in case the establishment wishes to seek exemption under Section 17, it shall apply to the Competent Authority ... ... ... Otherwise, if the establishment wishes to extend benefits of GPF to the Page 62 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 Petitioners, the establishment shall first decide to extend GPF benefits to the Petitioners. .... ... ... ... This is once again reiterated that the Petitioners are otherwise eligible to get any other and more beneficial social security benefits including GPF subject to the fulfilment of conditions. ... .... and if the establishment decides to extend such benefits to its employees."
17.The present petitioners have indulged into 6 th round in the petition in context of the prayers made in the petition and in light of the huge liability if the corporation would be compelled to undertake. Admittedly when no options were exercised at the relevant point of time when specifically made available to the employees even of the EPF, no further time can be given to the petitioners to switch over to the pension scheme. Admittedly that time limit has expired long back. Even the decisions of this Court in the context of the employees which have been reproduced herein above extensively indicates Page 63 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 that the petitioner has silently accepted to continue under the EPF scheme and therefore in light of this that even a speaking order was passed on 20.10.2007 has become final and was not challenged by the petitioners at any point of time which indicated that the representations made by the similarly situated employees like the petitioner was rejected.
18.The decisions cited by Shri Trivedi learned Senior Advocate in light of the observations made herein above need to be considered.
19.The decisions in the case of V.K.Ramamurthy v. Union of India reported in (1996) 10 SCC 73, wherein paras 1 to 5 of the decision read as under:
"1. This petition under Article 32 of the Constitution is by a superannuated railway employee seeking a mandamus from this Page 64 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 Court to the railway administration directing them to allow the petitioner to switch over from the Provident Fund Scheme to the Pension Scheme and for a further direction that the petitioner should be granted the pensionary benefits w.e.f. the date of his superannuation i.e. 14.7.1972.
2. The undisputed facts are that the petitioner started his career as an employee under Madras and Southern Maharata Railway on 23rd of July, 1938. The said Railway later on became the Southern Railway. On attaining the age of superannuation, after rendering 34 years of service the petitioner retired on 14th July, 1972. The railway administration had sought for the option from the petition as to whether he would remain in Contributory Provident Fund Scheme or would switch over to the Pension Scheme. The petitioner, however, opted to continue in the Contributory Provident Fund Scheme and according on his superannuation the entire dues which he was entitled to from the Provident Fund Scheme was paid to him. The further case of the petitioner is that since the railway administration had allowed some of its employees in the year 1984 to opt for the Pension Scheme even though earlier they had retired on receiving the provident fund dues, the petitioner also filed a representation to the General Manager, Southern Railway as well as to the Chairman, Railway Board. Not being Page 65 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 favoured with any reply the petitioner filed a representation to the Hon'ble Minister for Railways. The petitioner also filed a representation in August, 1986 to the Pension Adalat but the said Adalat gave the reply that his case could not come within the purview of Pension Adalat. Petitioner, thereafter, made one or two further representations to different authorities. Meanwhile, a retired employee had approached the Central Administrative Tribunal, Bombay Bench and the Tribunal granted the benefit of coming to the Pension Scheme to the said applicant - Ghansham Das. The petitioner also came to know that this Court in R. Subramanian v. C.P. Order had allowed a retired employee to come over to the Pension Scheme who had earlier opted for Provident Fund Scheme. The petitioner, therefore, finally approached this Court for the relief as already stated. The Respondents filed a counter affidavit taking the stand that in view of Constitution Bench decision in Krishena Kumar v. Union of India and Ors. , which has been followed in several other cases, the petitioner having opted to remain in the Provident Fund Scheme and having withdrawn the entire dues which he was entitled to under Provident Fund Scheme cannot be allowed to switch over to the pension Scheme after lapse of 24 years. It has also been stated in the said counter affidavit that prior to petitioner's retirement on 14th July, 1972 as many as six options had been given to him to Page 66 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 choose whether he would remain in the Provident Fund Scheme or would switch over to the Pension Scheme and the petitioner consistently and deliberately chose to continue in the Provident Fund Scheme and received all his dues from the said scheme and, therefore, he cannot be allowed now to switch over to the Pension Scheme after this length of time. The short question that arises for consideration, therefore, is whether the Pension Scheme though was in operation while the petitioner was in service and option was sought for but the petitioner never opted for the same and on the other hand deliberately opted for Provident Fund Scheme, will he be entitled to come over the Pension Scheme after 24 years of his retirement? The main plank of the argument advanced by the learned Counsel for the petitioner is the decision of this Court in R. Subramanian's case (Writ Petition (Civil) No. 881 of 1993) as well as the decision of the Central Administrative Tribunal, Bombay Bench in Ghansham Das case against which decision the Railways had approached this Court in Special Leave Petition (Civil) No. 5973 of 1988 but the same was dismissed on 5.9.1988. Mr. Goswami, the learned senior counsel appearing for the railway administration on the other hand contended that neither in Ghansham Das case nor in R. Subramanian case the Constitution Bench decision of this Court in Krishena Kumar's case has been noticed. On the other hand in Ghansham Das the Tribunal relied upon Page 67 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 the decision of this Court in D.S. Nakara v. Union of India , which decision has been noticed and explained away and not followed in the Constitution Bench decision in Krishena Kumar's case and, therefore, dismissal of Special Leave Petition against the Judgment of the Central Administrative Tribunal, Bombay bench cannot have a binding precedent. After Considering the rival submissions and after going through the Constitution Bench decision of this Court in Krishena Kumar's case referred to supra, we find much force in the contention raised by Shri Goswami the learned senior counsel for the railway administration.
3. That the pension Scheme was introduced by the Railway Board since 16th November, 1957 while the petitioner was still in service is not disputed. Further, the assertion of the railway administration that prior to the superannuation of the petitioner on 14th July, 1972 as many as six options had been given to the petitioner to come over to the Pension Scheme and yet he did not choose to come over to the Pension Scheme and on the other hand deliberately chose to continue in the Provident Fund Scheme is also not disputed. The question that arises for consideration, therefore, is whether still the petitioner can be allowed an option to go back to the Pension Scheme? In the Constitution Bench decision in Krishna Kumar's case this Court was also considering an identical case of a retired Page 68 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 railway employee who had opted for the contributory Provident Fund Scheme but after his retirement wanted to switch over to the Pension Scheme. This Court did not allow the relief of switching over to the Pension Scheme on a conclusion that the Pension Scheme and the provident Fund Schemes are structurally different and they do not belong to one class. It was also observed that in the matter of expenditure includible in the Annual Financial Statement, this Court has to be loath to pass any order or give any direction, because of the division of functions between the three co-equal organs of the government under the Constitution. Referring to the earlier decision of the court in Nakara's case, it was observed that in the Nakara it was never held that both the pension retirees and the provident fund retirees from a homogeneous class and further in Nakara it was never required to be decided that all the retirees form a class. It was also observed that while deciding the case of pension retirees in Nakara's case the provident fund retirees were not in mind. This Court also further held in Krishena Kumar's case :
"The Railway Contributory Provident Fund is by definition a fund. Besides, the government's obligation towards an employee under CPF scheme to give the matching contribution begins as soon as his account is opened and ends with his retirement when his rights qua the Page 69 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 government in respect of the Provident Fund is finally crystallized and thereafter no statutory obligation continues. Whether there still remained a moral obligation is a different matter. On the other hand under the Pension Scheme the government's obligation does not begin until the employees retires when only it begins and it continues till the death of the employee. Thus, on the retirement of an employee government's legal obligation under the Provident Fund Account ends while under the Pension Scheme it begins. The rules governing the Provident fund and its contribution are entirely different from the rules governing pension. It would not, therefore, be reasonable to argue that what is applicable to the pension retirees must also equally be applicable to PF retirees. This being the legal position the rights of each individual PF retirees finally crystallized on his retirement where after no continuing obligation remained while, on the other hand, as regard Pension retirees, the obligation continued till their death. The continuing obligation of the State in respect of pension retirees is adversely affected by fall in rupee value and rising prices which, considering the corpus already received by the PF retirees they would not be so adversely affected ipso facto. It cannot therefore, be said that it was the ratio decidendi in Nakara that the State's obligation towards its PF retirees must be the same as that towards the pension retirees."
4. In State of Rajasthan v. Rajasthan Pensioner Samaj [1991] Supp 2 SCC 141, Page 70 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 this Court also came to hold that the contributory provident fund retirees form a different class from those who had opted for Pension Scheme according to the decision in Krishena Kumar's case and as such they are not entitled to claim as of right to switch over from Provident Fund scheme to Pension Scheme and consequently the Contributory Provident Fund Scheme retirees are not entitled to the benefits granted to the Pension Retirees. In yet another case of All India Reserve Bank Retired Officers Association and Ors. v. Union of India and Anr. [1992] Supp 1 SCC 664, the Court was also considering the case of the Pension Scheme and Contributory Provident Fund Scheme and held that in the case of an employee governed by the Contributory Provident Fund Scheme his relations with the employer come to an end on his retirement and receipt of the contributory provident fund amount but in the case of an employee governed under the Pension Scheme his relations with the employer merely undergo a change but do not snap altogether. It is for this reason in case of pensioners it is necessary to revise the pension periodically as the continuous fall in the rupee value and the rise in prices of essential commodities necessitates an adjustment of the pension amount but that is not the case of employees governed under the Contributory Provident Fund Scheme, since they had received the lump sum payment which they were at liberty to invest in a manner that would yield Page 71 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 optimum return which would take care of the inflationary trends and this distinction between those belonging to the pension scheme and those belonging to the Contributory Provident Fund Scheme has been rightly emphasised by this Court in Krishena Kumar's case.
5. In view of the aforesaid series of decisions of this Court explaining and distinguishing Nakara's case the conclusion is irresistible that the petitioner who retired in the year 1972 and did not exercise his option to come over to the Pension Scheme even though he was granted six opportunities is not entitled to opt for Pension Scheme at this length of time. The decision of Ghansham Das case on which the learned Counsel for the petitioner placed reliance, the Tribunal relied upon Nakara's case and granted the relief without considering that Nakara's decision has been distinguished in the Constitution Bench case of Krishena Kumar and other cases referred to supra. Therefore, dismissal of the Special Leave Petition against the said Judgment of the Tribunal cannot be held to be law laid down by this Court, in view of what has been stated in Krishena Kumar's case. The other decision of this Court, in the case of R. Subramanian (Writ Petition (Civil) No. 881 of 1993) the Court merely relied upon the dismissal of Special leave Petition against the judgment of Tribunal in Ghansham Das case and disposed of the matter and, therefore, the same also Page 72 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 cannot be held to be a decision on any question of law. In the aforesaid premises and in view of the legal position as discussed above the writ petition is dismissed but in the circumstances without any order as to costs."
20.In the case of M.K.Sarkar (supra) paras 8, 9, 12 and 25 of which read as under:
"8. The appellants challenged the order of the Tribunal in WP (CT) No.467/2005. The High Court dismissed the writ petition by order dated 25.1.2006. The said order of the High Court is challenged in this appeal by special leave. The question for consideration is whether the respondent was entitled to exercise an option to switch over pension scheme, beyond the stipulated last date, that too twenty two years after retirement and receipt of the retirement dues under the Contributory Provident Fund Scheme
9. When a scheme extending the benefit of option for switch-over, stipulates that the benefit will be available only to those who exercise the option within a specified time, the option should obviously be exercised within such time. The option scheme made it clear that no option could be exercised after the last date. In this case, the respondent chose not to exercise the option and continued to remain under the Contributory Provident Fund Scheme, and more important, received the entire PF amount on his retirement.Page 73 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022
C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 ...
12. From 1980 onwards, gradually the pension scheme became more and more attractive as compared to the Contributory Provident Scheme, on account of various factors, like dearness allowance being included in the pay for computing pension, ceiling on pension being removed and liberalisation of family pension etc. But the respondent was well aware that not having opted for pension scheme and having received the PF amount on retirement, he was not entitled to seek switch over to pension scheme. But in 1996, when the respondent learnt that some others who had retired in and around 1973 to 1976 had been permitted to exercise the option in 1993-94 on the ground that they had not been notified about the option, he decided to take a chance and gave a representation seeking an option to switch over to pension scheme.
...
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 Page 74 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 also, on the reasoning that they have been denied the benefits which have been illegaly extended to others. See : Chandigarh Administration vs. Jagdish Singh - 1995 (1) SCC 745; Gursharan Singh & Ors. vs. New Delhi Municipal Committee & Ors. - 1996 (2) SCC 459; Faridabad C.T. Scan Centre vs. Director General, Health Services - 1997 (7) SCC 752; State of Haryana vs. Ram Kumar Mann - 1997 (3) SCC 321, State of Bihar & Ors. vs. Kameshwar Prasad Singh & Anr. -
2000 (9) SCC 94 and Union of India vs. International Trading Company."
21.In the case of Rajasthan State Road Transport Corporation (supra), paras 2 and 14 read as under:
"2. We are, in this case, concerned with the question whether the widow of an employee is entitled to get family pension under the Employees Family Pension Scheme, 1971 (for short 'Scheme'), on the failure of the employer to exercise his option under the scheme, especially when the claimant has already received the entire Provident Fund amount, from the Fund maintained by the Corporation.
...
14. When we read the notification dated 9.4.1971 issued by the Regional Provident Fund Commissioner along with the communication letter dated 30.7.1971 Page 75 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 issued by the appellant-Corporation, it is evident that the Regional Provident Fund Commissioner as well as appellant-
Corporation had informed all the departments/unions, as well as employees working under the Corporation to exercise their necessary option if they wanted to get the benefit of the Family Pension. Facts would indicate that several employees at that time had opted and few of them did not opt for that, since they were interested to get provident fund under the CPF Scheme and not the family pension under the Scheme, after the death of the employee. We have no reason to think that the employees were unaware of the notification issued by the Regional Provident Fund Commissioner as well as the Corporation. Facts would also indicate that the wife of Hari Singh had already received the entire provident fund amount and, since Hari Singh had not opted under the Scheme. However, after nine years, respondent Union is raising a dispute which, in our view, in absolutely untenable. The Tribunal as well as Courts below have committed a grave error in not properly appreciating the facts of the case and rendered a perverse finding which necessarily calls for interference.
22.In the case of Rajasthan Rajya Vidyut Vitran Nigam Limited v. Dwarka Prasad Koolwal reported in 2015 12 SCC, paras 58 to 61 read Page 76 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 as 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 switch over to the Pension and GPF Regulations. This option has to be exercised within a period of 90 days from the cut-off date, that is, 28th November, 1988. But the RSEB, in its wisdom, chose to extend the time for exercising the switch- over option over a period of 8 years by giving several opportunities to the employees through its notices. The right of an employee to switch over was, therefore, limited in time by the Pension and GPF Regulations. However, administrative orders issued by the RSEB from time to time extended the period for exercising the option. No employee had any inherent right to either demand an extension of the period for exercising the switch-over option or claim a right to exercise the switch-over option at any time prior to his retirement, and no such right has been shown to us.
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 Page 77 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 to choose the scheme that he feels more comfortable with and appropriate for his purposes. No employee can switch over back and forth from one scheme to another as per his convenience. Once an employee has chosen to be a part of a particular scheme, he continues to remain a member of that scheme unless an option to switch over to another scheme is given to him.
60. Insofar as the present appeals are concerned, the respondents who are members of the CPF Scheme were given several opportunities of switching over to the Pension Scheme and the GPF Scheme under the Pension Regulations and the GPF Regulations respectively but they chose not to do so. The question whether under these circumstances pension is a bounty or a charity becomes completely irrelevant. The entitlement to pension was available to the respondents but they chose not to avail the entitlement for reasons personal to them. Having taken a decision in this regard the respondents cannot now raise an argument of pension not being a bounty and therefore requiring the RSEB to give them another option to switch over to the Pension and GPF Regulations.
61. Under the circumstances, we find no merit in the contentions urged by the respondents and consequently, the appeals of the RSEB deserve to be allowed."Page 78 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022
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23.In the case of State of Punjab v. Ram Dubaya Bagga (supra) 1998 4 scc 117 para 25 reads as under:
"25. Now we revert to the last submission, whether the new State policy is justified in not reimbursing an employee, his full medical expenses incurred on such treatment, if incurred in any hospital in India not being a Government hospital in Punjab. Question is whether the new policy which is restricted by the financial constraints of the State to the rates in AIIMS would be in violation of Article 21 of the Constitution of India. so far as questioning the validity of governmental policy is concerned in our view it is not normally within the domain of any court, to weigh the pros and cons of the policy or to scrutinize it and test the degree of its beneficial or equitable disposition for the purpose of varying modifying or annulling it, based on however sound and good reasoning, except where it is arbitrary or violative of any constitutional, statutory or any other provision of law. When Government forms its policy, it is based on number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinion. it would be dangerous if court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. The Court would dissuade itself from entering into this realm which belongs Page 79 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 to the executive. It is within this matrix that it is to be seen whether the new policy violates Article 21 When it restricts reimbursement on account of its financial constraints."
24.In the case of Directorate of Film Festivals reported in 2007 4 SCC 737, para 16 read as under:
"14. The scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy. Nor are courts Advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review [vide : Asif Hameed v. State of J&K - 1989 Supp (2) SCC 364; Shri Sitaram Sugar Co. Ltd., v. Union of India - 1990 (3) SCC 223; Khoday Distilleries v. State of Karnataka - 1996 (10) Page 80 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022 SCC 304, Balco Employees Union v. Union of India - 2002 (2) SCC 333), State of Orissa vs. Gopinath Dash - 2005 (13) SCC 495 and Akhil Bharat Goseva Sangh vs. State of Andhra Pradesh - 2006 (4) SCC 162]."
25.A coextensive reading of these judgements would indicate that there is no right of an employee to ask for an option to switch over to a pension scheme once the limited time for such option has expired. Even otherwise what is found is that having sat silent over a period of years and not exercised the option which was specifically given to even the EPF scheme beneficiaries, the petitioners, in this 6th round of litigation continue to re-agitate the issue which cannot be so done. The decision in case of Shashikaran (supra), is a case where Section 28A was amended permitting the employees to avail the benefits of the GPF scheme and therefore, for all these reasons, the petitions deserve to be dismissed. Page 81 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022 C/SCA/1629/2022 CAV JUDGMENT DATED: 13/10/2022
26.Accordingly, the petitions are dismissed.
27.So far as Civil Application (for bringing heirs) No.1 of 2022 in Special Civil Application No.1637 of 2022 is concerned, the same is preferred as the petitioner died on 18.05.2022.
28.In view of the averments made in the memo of the application, the application is allowed.
29.The heirs of the petitioner being 1.1 to 1.3 as shown in the cause title of this application be brought on record as heirs of the petitioner in the main petition. Registry to amend the cause title accordingly.
(BIREN VAISHNAV, J) ANKIT SHAH Page 82 of 82 Downloaded on : Fri Oct 14 00:56:22 IST 2022