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Wednesday, August 28, 2013

Service matter - whether respondent No. 2 is entitled to pension as claimed by him or he is eligible to get his retirement benefits under Contributory Provident Funds Scheme (for short “the C.P.F. Scheme”).= No- as he failed to choose his option with in 3 months of notification - Delay can not be accepted as it carry no value in the eye of law = The appellant-University accepted the option exercised by respondent No. 2 and therefore, it cannot be said that the deeming fiction incorporated in the Notification would help respondent No. 2. For sake of convenience, relevant extract of the Notification dated 17th August, 1991, is reproduced hereinbelow :- “….Thus all employees who were in service on 1.1.1990 shall have to exercise their option in writing, either for the pension scheme under these regulations or for continuance under the existing C.P.F. Scheme, within 3 months from the date of notification of this provision and shall submit the same to the Comptroller, Rajasthan Agriculture University, Bikaner in the prescribed form. The existing employees who do not exercise option within the period specified under these regulations shall be deemed to have opted for the pension scheme. Option once exercised shall be final and irrevocable…” 22. Though, respondent No. 2 did not exercise his option within the period prescribed under the aforestated Notification, when he had exercised the option on 3rd January, 1992, for continuing to be under the C.P.F. Scheme and when the appellant-University had graciously accepted the option exercised by respondent No. 2, he would not get benefit under the deeming fiction incorporated in the Notification. It would be unfair to the University if the submission of respondent No. 2 is accepted. A special favour was done to respondent No. 2 by accepting his option even after the prescribed period was over. Now, at this stage, after his retirement, respondent No. 2 wants to take undue advantage of the favour done to him by the appellant university, which cannot be permitted. Had respondent No. 2 not exercised his option at all, he would have been surely treated to have accepted the Pension Scheme but as he had given his option late, which had been graciously accepted by the appellant-University, it cannot be said that respondent No. 2 should be treated to have accepted the Pension Scheme. 23. All averments pertaining to employees of other universities are not relevant because each employer university would have its own scheme with regard to payment of retirement benefits to its employees. 24. We may add here that respondent No. 2 is a highly literate person and he must have known the consequences, when he had opted for the C.P.F. Scheme under his letter of option dated 3rd January, 1992. It was his conscious effort to see that he continues with the C.P.F. Scheme and the said effort was respected by the appellant- University by showing special favour, as his option was accepted even after the time prescribed in the Notification was over. 25. For the aforestated reasons, we are of the view that the High Court was in error by giving a direction to the appellant- University that respondent No. 2 should be given pension as if he had opted for the Pension Scheme. 26. The appeal stands allowed with no order as to costs.

                              published in   http://judis.nic.in/supremecourt/imgst.aspx?filename=40698                           
     REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NO.   7160  OF 2013
                  (Arising out of SLP (C) No. 7781 of 2011)






Rajasthan Agriculture University, Bikaner          .....Appellant



                                Versus

State of Rajasthan & Ors.                            …..Respondents







                               J U D G M E N T


1 ANIL R. DAVE, J.




      1. Leave granted.


      2. Being aggrieved by the judgment delivered in  D.B.  Civil  Special
         Appeal (Writ) No. 32 of 2008 in S.B. Civil Writ Petition No.  1738
         of 2003 dated 20th January, 2001, by the High Court of  Rajasthan,
         the Rajasthan Agriculture University has filed this appeal.


      3. The facts giving rise to the present appeal, in a nutshell, are as
         under :-


         Respondent No. 2 was in employment  of  the  appellant-University.
         Prior to his employment under the appellant-University, respondent
         No. 2 had worked with the State  of  Rajasthan  in  Veterinary   &
         Animal Husbandry Department.  After  taking  voluntary  retirement
         from his State service,  he  had  joined  the  erstwhile  Mohanlal
         Sukhadia University, Udaipur. Subsequently,  the  said  university
         had been  bifurcated  and  the  appellant-University  was  formed.
         Service of respondent No. 2 had been taken over by the  appellant-
         University.


      4. The question which is to be decided is
whether respondent No. 2 is
         entitled to pension as claimed by him or he is eligible to get his
         retirement benefits under Contributory Provident Funds Scheme (for
         short “the C.P.F. Scheme”).


      5. Upon taking voluntary retirement  from  the  State  of  Rajasthan,
         respondent No. 2 is getting pension from the State of Rajasthan in
         respect of the services rendered by him to the State of Rajasthan.
         After being in employment of the appellant-University, along  with
         entire staff of the appellant-University,  respondent  No.  2  was
         also asked to give his option whether he was inclined to opt for a
         Pension Scheme or for a C.P.F. Scheme. The options were invited by
         the        appellant-University         under         Notification
         No.Pension/RAJAU/C/91/F-75/3668- 768 dated 17th August,  1991.  It
         was stated in the said Notification  that the employees  who  were
         in service of the appellant-University as on                   1st
         January, 1990, shall have to exercise  their  option  in  writing,
         either for the  Pension  Scheme  or  for  continuation  under  the
         existing C.P.F. Scheme within  3  months  from  the  date  of  the
         Notification. It was further provided in the Notification that the
         employees, who would not exercise the option within 3 months  from
         the date of the Notification,  would be deemed to have  opted  for
         the Pension Scheme.


      6. Unfortunately, respondent No. 2 could not intimate his  option  to
         the appellant-University within the period prescribed but  by  his
         letter dated 3rd January,  1992,  he  had  opted  for  the  C.P.F.
         Scheme. He specifically stated  in  his  communication  dated  3rd
         January, 1992 that he did not opt for the Pension Scheme.  Perhaps
         as a special case, the option exercised by him had  been  accepted
         by the appellant-University and the acceptance was kept on  record
         after the authorized signatory  of  the  appellant-University  had
         accepted the option. Thus, his option for continuation  under  the
         C.P.F. Scheme had been accepted by the appellant-University.


      7. On 30th June, 1997, respondent No. 2 retired from service  and  as
         per the record of the University, as he had opted for  the  C.P.F.
         Scheme, he was paid all his retirement  benefits  payable  to  him
         under the C.P.F. Scheme.


      8. Respondent No. 2, thereafter made a grievance that as he  had  not
         exercised his option within the prescribed period of 3 months from
         the date of the Notification dated 17th August, 1991, as  per  the
         conditions incorporated in the said Notification, he  should  have
         been deemed to have opted for the Pension Scheme and therefore, he
         should be paid pension as per the Pension Scheme.


      9. The request made by respondent No. 2 had not been accepted because
         the appellant-University had already accepted the option of C.P.F.
         Scheme exercised by him.


     10. In the circumstances, after about 6 years, respondent No. 2  filed
         S.B. Civil Writ Petition No. 1738 of 2003 praying for a  direction
         to the effect that the appellant-University should pay pension  to
         him. The High Court allowed the petition by giving a direction  to
         the appellant-University to consider the case of respondent No. 2.
         Being aggrieved  by  the  aforestated  direction,  the  appellant-
         University had filed D.B. Civil Special Appeal (W) No. 32 of  2008
         and at the same time  a  decision  was  taken  by  the  appellant-
         University not to change its  decision   with  regard  to   giving
         benefit of the C.P.F. Scheme to respondent No. 2.


     11. By virtue of the impugned judgment delivered by  the  High  Court,
         the  appellant-University  was  directed  to   give   pension   to
         respondent         No. 2. Thus, the Division  Bench  of  the  High
         Court has directed the appellant-University to change  the  manner
         in which retirement benefits should be calculated and give pension
         to respondent No. 2 as if he had opted for the Pension Scheme.


     12. The appellant-University has been  aggrieved  by  the  aforestated
         judgment and therefore, this appeal has been filed.


     13. The learned counsel appearing  for  the  appellant-University  had
         submitted that having once  opted  for  the  C.P.F.  Scheme  under
         letter dated 3rd January, 1992 and when the said request  made  by
         the respondent No. 2 had been accepted by the appellant-University
         and as the amount payable to respondent No. 2 had already paid  to
         him, it was not open to respondent No. 2 to change his  stand  and
         ask for pension as if he had opted for  the  Pension  Scheme.  The
         learned counsel had further submitted that the writ  petition  had
         been filed after more than 5 years and that too,  after  accepting
         the total amount payable to him under the C.P.F. Scheme.


     14. The learned counsel had submitted that respondent No. 2 could  not
         have been permitted to change his stand after his  retirement.  He
         had drawn our attention to the letter of option  duly  signed  and
         filed before the appellant-University by respondent No. 2 and  the
         said option exercised by him, even though at a belated stage,  had
         been accepted by the appellant-University. This was a favour  done
         to respondent No. 2 by the appellant-University.


     15. According to the learned counsel, it  was  not  a  case  where  no
         option was  exercised  by  respondent  No.  2.  It  is  true  that
         respondent No. 2 did not exercise his  option  within  the  period
         prescribed but his delay in exercising option had  been  impliedly
         condoned and the option exercised by respondent No. 2 was accepted
         by the appellant-University and  therefore,  the  deeming  fiction
         incorporated in the Notification would  not  be  of  any  help  to
         respondent No. 2, so as to treat him as if he had  opted  for  the
         Pension Scheme by default.


     16. The learned  counsel  for  the  appellant-University  had  further
         submitted that the  University  has  limited  funds  and  if  such
         changes  in  exercise  of  option  is  permitted,  the  appellant-
         University would be in great financial difficulties. He  had  also
         submitted that the High Court had become  unduly  lenient  towards
         respondent No. 2. He had, therefore,  submitted  that  the  appeal
         should be allowed and the direction given by the High  Court  with
         regard to payment of pension to respondent No. 2 be quashed.


     17. On the other hand, the learned counsel  appearing  for  respondent
         No. 2 had vehemently submitted that once respondent No. 2 had  not
         exercised  his  option  within  the  period  prescribed   in   the
         Notification dated 17th  August,  1991,  he  ought  to  have  been
         treated as if he had opted for  the  Pension  Scheme  as  per  the
         deeming fiction incorporated in the Notification. He  had  further
         submitted that immediately upon retirement, respondent No.  2  had
         made a grievance that he was wrongly considered to have opted  for
         the C.P.F. Scheme and had written several letters  and  therefore,
         in fact, there was no delay as alleged. The  learned  counsel  had
         also tried  to  compare  provisions  with  regard  to  payment  of
         retirement  benefits  by  other  universities  of  the  State   of
         Rajasthan and had made an effort to persuade  this  Court  to  the
         effect that respondent No. 2 ought to have been given  pension  in
         view of the  fact  that  similarly  situated  employees  of  other
         universities were also paid pension.


     18. We have heard the learned counsel and  also  have  considered  the
         relevant record forming part of the paper book.


     19. We are of the view that the High Court ought not to have  given  a
         direction  to  the  appellant-University  to   give   pension   to
         respondent No. 2 as if he had opted for the Pension Scheme.


     20. It is an admitted fact that respondent No.  2  had  exercised  his
         option not within the period prescribed  but little  late.  Though
         late, respondent No. 2 had opted for joining  or  continuing  with
         the C.P.F. Scheme.


     21.  The  appellant-University  accepted  the  option   exercised   by
         respondent No. 2 and therefore, it cannot be said that the deeming
         fiction incorporated in the Notification would help respondent No.
         2. For sake of convenience, relevant extract of  the  Notification
         dated 17th August, 1991, is reproduced hereinbelow :-


               “….Thus all employees who were in service on 1.1.1990  shall
               have to exercise their option in  writing,  either  for  the
               pension scheme under these regulations  or  for  continuance
               under the existing C.P.F. Scheme, within 3 months  from  the
               date of notification of this provision and shall submit  the
               same to the Comptroller, Rajasthan  Agriculture  University,
               Bikaner in the prescribed form. The existing  employees  who
               do not exercise option within  the  period  specified  under
               these regulations shall be deemed  to  have  opted  for  the
               pension scheme. Option once exercised  shall  be  final  and
               irrevocable…”






     22. Though, respondent No. 2 did not exercise his  option  within  the
         period prescribed under the aforestated Notification, when he  had
         exercised the option on 3rd January, 1992, for continuing   to  be
         under the  C.P.F. Scheme and  when  the  appellant-University  had
         graciously accepted the option exercised by respondent No.  2,  he
         would not get benefit under the deeming  fiction  incorporated  in
         the Notification. It would be unfair  to  the  University  if  the
         submission of respondent No. 2 is accepted. 
A special  favour  was
         done to respondent No. 2 by accepting his option  even  after  the
         prescribed period  was  over.   Now,  at  this  stage,  after  his
         retirement, respondent No. 2 wants to take undue advantage of  the
         favour done to him by the appellant university,  which  cannot  be
         permitted. 
Had respondent No. 2 not exercised his option  at  all,
         he would have been surely treated to  have  accepted  the  Pension
         Scheme but as he  had  given  his  option  late,  which  had  been
         graciously accepted by the appellant-University, it cannot be said
         that respondent No. 2 should  be  treated  to  have  accepted  the
         Pension Scheme.


     23. All averments pertaining to employees of  other  universities  are
         not relevant because each employer university would have  its  own
         scheme with regard  to  payment  of  retirement  benefits  to  its
         employees.


     24. We may add here that respondent No. 2 is a highly literate  person
         and he must have known the consequences, when he had opted for the
         C.P.F. Scheme under his letter of option dated 3rd January,  1992.
         It was his conscious effort to see  that  he  continues  with  the
         C.P.F. Scheme and the said effort was respected by the  appellant-
         University by showing special favour, as his option  was  accepted
         even after the time prescribed in the Notification was over.


     25. For the aforestated reasons, we are of  the  view  that  the  High
         Court was in  error  by  giving  a  direction  to  the  appellant-
         University that respondent No. 2 should be given pension as if  he
         had opted for the Pension Scheme.


     26. The appeal stands allowed  with no order as to costs.



                 ………………................................J.

      (ANIL R. DAVE)




                                       ….…….................................
                                       ..........J.

                                                (DIPAK MISRA)

New Delhi
August 27 , 2013
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