Calcutta High Court
The State Of West Bengal And Ors. vs Madan Mohan Ghosh And Ors. on 4 October, 2004
Equivalent citations: (2005)1CALLT375(HC)
Author: Barin Ghosh
Bench: Barin Ghosh
JUDGMENT Alok Kumar Basu, J.
1. The State of West Bengal has preferred this appeal challenging the judgment and order dated 1st December, 2003 passed by the learned single Judge of this Court in connection with W.P. No. 16068(W) of 2003.
2. The writ petitioner respondents filed the writ petition on the allegation that the Education Department did not consider their prayer to come under Pension Scheme from the Contributory Provident Fund Scheme in spite of their repeated requests and demand. The petitioners stated in their writ petition that since their joining in service in a non government aided institution, they were subscribers under the Contributory Provident Fund Scheme which was beneficial to their interest. The petitioners contended that with the fall of interest rate their continuation of membership under the Contributory Provident Fund Scheme has become disadvantageous to their financial interest. The petitioners have frankly admitted in their writ petition that in spite of option provided to them to come under the Pension Scheme they did not avail of that option, but, now in view of the changed circumstances they want to be covered under the Pension Scheme and for that they are agreeable to deposit their share accumulated in the Provident Fund account along with interest so as to get the benefit of Pension Scheme for themselves and their family members.
3. Before the learned single Judge, it was submitted on behalf of the petitioners that already several judgments have been pronounced by this Court supporting the claim of the petitioners and hence, there is no legal bar in granting relief to the petitioners claimed through the present petition. The learned single Judge relied on such a judgment and allowed the writ petition and directed the State Government to bring the petitioners under the Pension Scheme ignoring the fact that petitioners did not exercise such option given to them.
4. The learned advocate appearing in support of the present appeal contends before us that the learned single Judge was not justified in passing the impugned order without application of his mind and merely relying on a judgment of learned single Judge. The learned advocate contends that in an unreported judgment of a Division Bench of this Court in connection with M.A.T. 2206 of 2001, the similar contention of teachers of Government added Institution was turned down holding inter alia that the cut off date fixed by the Government in the matter of taking the benefit of Pension Scheme cannot be altered by judicial decision.
5. The learned advocate for the appellant State further submits that in a decision of the Hon'ble Supreme Court , it was held that a cut off date fixed by the Government enabling its employees to switch off from Contributory Provident Fund Scheme to Pension Scheme cannot be stated to be unreasonable and following that decision, it is not open to the petitioners to challenge the Government circular dated 16th December, 1991 under which the teachers were given last chance to exercise their option to come under Pension Scheme within a specified time and further in the writ petition there was no challenge against the said circular.
6. The learned advocate for the State appellant has also relied on another judgment of the Hon'ble Supreme Court to substantiate the point that the decision of the Government circulated through a notification by setting a cut off date for exercising an option to either to come to the Provident Fund Scheme or the Pension Scheme could not be struck down and such decision does not violate the provision of Article 14 of the Constitution of India. The learned advocate contends that the learned single Judge without examining any legal point in support of the writ petitioner and without giving any comment on the applicability of the circular dated 16th December, 1991, allowed the prayer of the petitioner when the petitioners admittedly did not exercise their option which was given for the last time under the circular dated 16th December, 1991.
7. The learned advocate for the respondents, on the other hand, contends that once it has been brought to the notice of the Court that there were several judgments supporting the stand of the writ petitioner, it would not be proper to disturb the existing situation by setting aside the judgment of the learned single Judge impugned in this order and this is almost a legal principle as it is available from the observation of the Hon'ble Supreme Court rendered in the case of Chandra Prakash and Ors. v. The State of Uttar Pradesh, 2000(2) 10 SCC page 710.
8. The learned advocate for the respondent next submits that there is no statutory prohibition against the prayer of the writ petitioners and by merely making reference to a Government circular a reasonable and valid right of the petitioners cannot be denied by the State Government. The learned advocate finally contends that Court while entertaining a prayer of the petitioners must take into account the existing social scenario and in the particular case it is admitted fact that with the fall of interest rate the persons opting for Contributory Provident Fund Scheme shall face much financial hardship and for making a reasonable provision for those employees and also for their family members, the Government should not adopt any rigid approach to prevent them from taking the benefit of Pension Scheme which was introduced as a welfare measure for the teaching and non-teaching staff of the educational institutions.
9. We have considered submissions of both the sides. It is undisputed position of law that disposal of cases by merely placing reliance on a decision is not proper. "Precedent should be followed only so far as it marked the path of justice", this is the observation of the Hon'ble Supreme Court found from the decision reported in 2004 AIR SCW page 4708. On examination of the impugned judgment and order, we notice that the learned single Judge did not record his own reasoning before allowing the prayer of the writ petitioners and merely relied on a judgment of another learned single Judge. We have already stated that a Division Bench of this High Court has already held that no person can be allowed to avail of the opportunity which he once refused and which was to be availed of within a prescribed time.
10. From the averments of the writ petition, we do not get anything to show when the writ petitioners actually opted to come under the Pension Scheme, but, the fact remains from the own admissions of the writ petitioners that they did not avail of the opportunity even after issuance of the circular dated 16th December, 1991. We have already observed that it is well within the domain and power of the State Government to announce a cut off date for exercising option for its employees to take the benefit of either Provident Fund Scheme or Pension Scheme and it is well within the power of the State Government to deny such benefit if the employees did not exercise option within the period from the cut off date as circulated through notification.
11. In view of what has been stated above and having regard to the averments of the writ petitioners and submissions of the respective parties, we are of clear view that the writ petitioners did not make out any case for ignoring the circular dated 16th December, 1991 and when admittedly they did not exercise the option within the specified time, their prayer for changing over to Pension Scheme cannot be considered in the eye of law.
Accordingly, we hold that there is merit in the present appeal and the judgment and order of the learned single Judge is liable to be set aside.
The appeal is, therefore, allowed and the judgment and order of the learned single Judge passed in Writ Petition No. 16O68(W) of 2003 is hereby set aside. There will be, however, no order as to costs.
Urgent xerox certified copy of this judgment, if applied for. may be supplied expeditiously after complying with all necessary legal formalities.
B. Ghosh, J.
12. I agree.