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Sunday, August 10, 2014

whether the respondents were entitled, as of right, to one more opportunity to switch-over from the Contributory Provident Fund Scheme of which they were members, to the Pension Scheme and the General Provident Fund Scheme implemented by the appellant with effect from 28th November, 1988? - Apex court held that NO - set aside the High court order = CIVIL APPEAL NO. 7483 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 29639 of 2012) Rajasthan Rajya Vidyut Vitran Nigam Ltd. .…Appellant versus Dwarka Prasad Koolwal & Ors. …Respondents = 2014 Aug. Part – http://judis.nic.in/supremecourt/filename=41819

whether the respondents were entitled, as of right, to one more  opportunity to switch-over from the Contributory Provident Fund  Scheme  of  which  they were members, to the Pension Scheme and the General  Provident  Fund  Scheme implemented by the appellant with effect from 28th November, 1988? - Apex court held that NO - set aside the High court order =

Broadly speaking, the contention  of  the  respondents  is  that  they  were
unaware of the switch-over option since they were posted in remote areas  of
Rajasthan, while the contention of the appellant is that a large  number  of
opportunities extending over 8  years  were  given  to  the  respondents  to
exercise the switch-over option and that they could not claim any  right  to
any further opportunity to make the switch over.
3.    In our opinion, the contention of the appellant must be  accepted  and
the  impugned  judgment  and  order  dated  17th  May,  2012  accepting  the
contention of the respondents has to be set aside.=

There can be no doubt about  this  proposition  but  when  two
schemes are available to an employee, one  being  the  CPF  Scheme  and  the
other being the Pension Scheme, it is for the employee to choose the  scheme
that he feels more comfortable with and appropriate for  his  purposes.   No
employee can 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.
70.   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.
71.   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.
Civil Appeal No.7503/2014 (Arising out of SLP (C)  No.30577  of  2012  (from
Civil Special Appeal (Writ) No.248 of 2012 in CWP No.13401 of 2008)

72.   In this appeal, it is submitted by learned counsel that the facts  are
slightly different from the rest of the appeals.  It was submitted that  the
writ petitioner had submitted his option on 20th  February,  1996  and  that
was forwarded to the concerned authorities on 6th March, 1996.
73.   By a letter dated 10th April, 1996, the writ petitioner  was  informed
that since his option was conditional, it could not be  accepted.  The  writ
petitioner responded to this by making a representation  dated  20th  April,
1996 to the effect that there was no condition attached to the  exercise  of
option. Nevertheless,  he  clarified  that  the  alleged  condition  may  be
treated as deleted and his option  form  may  be  considered.   However,  it
appears that the option form of the writ petitioner was  not  considered  by
the concerned authorities and that led him to file a writ  petition  in  the
Rajasthan High Court.
Civil Appeal No.7570/2014 (Arising out of SLP (C) No. 9990  of  2013   (from
Civil  Special  Appeal (Writ) No. 237 of 2012 in CWP No. 1079 of 2008)

74.   Learned counsel submitted that the writ petitioner  gave  his  switch-
over option well in time and in fact deductions from  his  salary  had  been
made under the GPF Scheme for several months thereafter.
75.   It appears that the reason for not accepting the option given  by  the
writ petitioner was that he had taken a housing loan under  the  CPF  Scheme
and was requested by a letter dated 18th March, 2000 to  return  the  amount
so that his switch-over option could be considered. Since he  failed  to  do
so, his option was not accepted. The writ petitioner denied receipt  of  the
letter dated 18th March, 2000 and reiterated that deductions had  been  made
from his salary under the GPF Scheme.
Civil Appeal No.7564/2014 (Arising out of SLP (C) No.  9983  of  2013  (from
Civil Special Appeal (Writ) No.257 of 2012 in CWP No. 12230 of 2009)

76.   It is submitted that the writ petitioner exercised his option in  1996
and that was  forwarded  to  the  competent  authority  by  his  controlling
officer (Executive Engineer at Bhilwara)  by  a  letter  dated  30th  March,
1996. Though the option form was received  well  within  time,  it  was  not
accepted.
77.   The entire facts of these cases are not before us nor has the  learned
Single Judge of the High Court specifically discussed these cases.
78.   Consequently, we are not in a position to give any decision  in  these
cases in view of the absence of full facts. We are  of  the  view  that  the
more appropriate course of action to adopt in  these  matters  would  be  to
remand them to a Single Judge of the High Court for fresh  consideration  on
merits after hearing the writ petitioners and the RSEB.
79.   No other distinct or partially dissimilar case was pointed out  to  us
by any learned  counsel  although  the  learned  Single  Judge  has  made  a
reference to a few of them.
Conclusion

80.   All the appeals are allowed but with no order as  to  costs.   Insofar
as Civil Appeals arising out of SLP (C) No.30577 of 2012,  SLP  (C)  No.9990
of 2013 and SLP (C) No.9983 of 2013 are concerned they  are  remitted  to  a
Single Judge of the High Court for a fresh consideration on merits.



2014 Aug. Part – http://judis.nic.in/supremecourt/filename=41819

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

      CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 7483 OF 2014
     (Arising out of Special Leave to Appeal (Civil) No. 29639 of 2012)


Rajasthan Rajya Vidyut Vitran Nigam Ltd.          .…Appellant

                                    versus

Dwarka Prasad Koolwal & Ors.                            …Respondents

                                    WITH
                        CIVIL APPEAL NO. 7484 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 30061/2012) CIVIL
                           APPEAL NO. 7485 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 30096/2012) CIVIL
                           APPEAL NO. 7486 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 30098/2012) CIVIL
                           APPEAL NO. 7487 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 30112/2012) CIVIL
                           APPEAL NO. 7488 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 30116/2012) CIVIL
                           APPEAL NO. 7489 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 30152/2012)
                        CIVIL APPEAL NO. 7490 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 30182/2012) CIVIL
                           APPEAL NO. 7491 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 30187/2012) CIVIL
                           APPEAL NO. 7492 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 30203/2012)
                        CIVIL APPEAL NO. 7493 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 30264/2012) CIVIL
                           APPEAL NO. 7494 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 30311/2012)
                        CIVIL APPEAL NO. 7495 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 30321/2012) CIVIL
                           APPEAL NO. 7496 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 30352/2012) CIVIL
                           APPEAL NO. 7498 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 30355/2012) CIVIL
                           APPEAL NO. 7499 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 30367/2012) CIVIL
                           APPEAL NO. 7500 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 30384/2012)
                        CIVIL APPEAL NO. 7501 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 30385/2012) CIVIL
                           APPEAL NO. 7502 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 30536/2012)
                        CIVIL APPEAL NO. 7503 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 30577/2012)
                        CIVIL APPEAL NO. 7504 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 30578/2012) CIVIL
                           APPEAL NO. 7505 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 30579/2012) CIVIL
                           APPEAL NO. 7506 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 30580/2012) CIVIL
                           APPEAL NO. 7507 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 30658/2012) CIVIL
                           APPEAL NO. 7508 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 30674/2012) CIVIL
                           APPEAL NO. 7509 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 30706/2012)
                        CIVIL APPEAL NO. 7510 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 30773/2012)
                        CIVIL APPEAL NO. 7511 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 30777/2012) CIVIL
                           APPEAL NO. 7512 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 30780/2012) CIVIL
                           APPEAL NO. 7513 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 30783/2012) CIVIL
                           APPEAL NO. 7514 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 30788/2012) CIVIL
                           APPEAL NO. 7515 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 31030/2012) CIVIL
                           APPEAL NO. 7516 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 31053/2012) CIVIL
                           APPEAL NO. 7517 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 31215/2012) CIVIL
                           APPEAL NO. 7519 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 31421/2012) CIVIL
                           APPEAL NO. 7520 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 38428/2012) CIVIL
                           APPEAL NO. 7521 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 39208/2012) CIVIL
                           APPEAL NO. 7522 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 39260/2012) CIVIL
                           APPEAL NO. 7523 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 39903/2012) CIVIL
                           APPEAL NO. 7525 OF 2014
        (Arising out of Special Leave to Appeal (Civil) No. 85/2013)
                        CIVIL APPEAL NO. 7526 OF 2014
        (Arising out of Special Leave to Appeal (Civil) No. 89/2013)
                        CIVIL APPEAL NO. 7527 OF 2014
        (Arising out of Special Leave to Appeal (Civil) No. 90/2013)
                        CIVIL APPEAL NO. 7528 OF 2014
        (Arising out of Special Leave to Appeal (Civil) No. 91/2013)

                        CIVIL APPEAL NO. 7529 OF 2014
        (Arising out of Special Leave to Appeal (Civil) No. 94/2013)
                        CIVIL APPEAL NO. 7530 OF 2014
        (Arising out of Special Leave to Appeal (Civil) No. 141/2013)
                        CIVIL APPEAL NO. 7531 OF 2014
        (Arising out of Special Leave to Appeal (Civil) No. 144/2013)
                        CIVIL APPEAL NO. 7532 OF 2014
        (Arising out of Special Leave to Appeal (Civil) No. 150/2013)
                        CIVIL APPEAL NO. 7533 OF 2014
        (Arising out of Special Leave to Appeal (Civil) No. 235/2013)
                        CIVIL APPEAL NO. 7534 OF 2014
        (Arising out of Special Leave to Appeal (Civil) No. 280/2013)
                        CIVIL APPEAL NO. 7535 OF 2014
        (Arising out of Special Leave to Appeal (Civil) No. 281/2013)
                        CIVIL APPEAL NO. 7536 OF 2014
        (Arising out of Special Leave to Appeal (Civil) No. 785/2013)
                        CIVIL APPEAL NO. 7537 OF 2014
        (Arising out of Special Leave to Appeal (Civil) No. 855/2013)
                        CIVIL APPEAL NO. 7538 OF 2014
        (Arising out of Special Leave to Appeal (Civil) No. 858/2013)
                        CIVIL APPEAL NO. 7539 OF 2014
        (Arising out of Special Leave to Appeal (Civil) No. 863/2013)
                        CIVIL APPEAL NO. 7540 OF 2014
        (Arising out of Special Leave to Appeal (Civil) No. 866/2013)
                        CIVIL APPEAL NO. 7541 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 1021/2013)
                        CIVIL APPEAL NO. 7542 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 1082/2013)
                        CIVIL APPEAL NO. 7543 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 1136/2013)
                        CIVIL APPEAL NO. 7544 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 1176/2013)

                        CIVIL APPEAL NO. 7545 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 1179/2013)
                        CIVIL APPEAL NO. 7546 OF 2014
   (Arising out of Special Leave to Appeal (Civil) No. 1205/2013)   CIVIL
                           APPEAL NO. 7547 OF 2014
   (Arising out of Special Leave to Appeal (Civil) No. 1368/2013)   CIVIL
                           APPEAL NO. 7548 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 1371/2013)   CIVIL
                           APPEAL NO. 7549 OF 2014
    (Arising out of Special Leave to Appeal (Civil) No. 1433/2013)  CIVIL
                           APPEAL NO. 7550 OF 2014
     (Arising out of Special Leave to Appeal (Civil) No. 1474/2013)
                        CIVIL APPEAL NO. 7551 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 1554/2013)
                        CIVIL APPEAL NO. 7552 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 1565/2013)
                        CIVIL APPEAL NO. 7553 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 1635/2013)
                        CIVIL APPEAL NO. 7554 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 1650/2013)
                        CIVIL APPEAL NO. 7555 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 1659/2013)
                        CIVIL APPEAL NO. 7556 OF 2014
        (Arising out of Special Leave to Appeal (Civil) No. 1664/2013
                        CIVIL APPEAL NO. 7557 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 3883/2013)
                        CIVIL APPEAL NO. 7558 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 4033/2013)
                        CIVIL APPEAL NO. 7559 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 4058/2013)
                        CIVIL APPEAL NO. 7560 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 4115/2013)
                        CIVIL APPEAL NO. 7561 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 4322/2013)
                        CIVIL APPEAL NO. 7562 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 5306/2013)
                        CIVIL APPEAL NO. 7563 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 5786/2013)
                        CIVIL APPEAL NO. 7564 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 9983/2013)
                        CIVIL APPEAL NO. 7565 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 9984/2013)
                        CIVIL APPEAL NO. 7566 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 9985/2013)
                        CIVIL APPEAL NO. 7567 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 9987/2013)
                        CIVIL APPEAL NO. 7568 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 9988/2013)
                        CIVIL APPEAL NO. 7569 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 9989/2013)
                        CIVIL APPEAL NO. 7570 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 9990/2013)
                        CIVIL APPEAL NO. 7571 OF 2014
   (Arising out of Special Leave to Appeal (Civil) No. 9991/2013)   CIVIL
                           APPEAL NO. 7572 OF 2014
       (Arising out of Special Leave to Appeal (Civil) No. 9993/2013)
                        CIVIL APPEAL NO. 7573 OF 2014
      (Arising out of Special Leave to Appeal (Civil) No. 6442/2014)

                               J U D G M E N T
Madan B. Lokur, J.

1.    Leave granted.
2.    The primary  question  for  consideration  in  all  these  appeals  is
whether the respondents were entitled, as of right, to one more  opportunity
to switch-over from the Contributory Provident Fund  Scheme  of  which  they
were members, to the Pension Scheme and the General  Provident  Fund  Scheme
implemented by the appellant with effect from 28th November, 1988?
Broadly speaking, the contention  of  the  respondents  is  that  they  were
unaware of the switch-over option since they were posted in remote areas  of
Rajasthan, while the contention of the appellant is that a large  number  of
opportunities extending over 8  years  were  given  to  the  respondents  to
exercise the switch-over option and that they could not claim any  right  to
any further opportunity to make the switch over.
3.    In our opinion, the contention of the appellant must be  accepted  and
the  impugned  judgment  and  order  dated  17th  May,  2012  accepting  the
contention of the respondents has to be set aside.
The facts
4.    The Rajasthan State Electricity  Board  (for  short  ‘the  RSEB’)  had
introduced a Contributory Provident Fund Scheme in 1972 (for short ‘the  CPF
Scheme’) for the benefit of its employees.  This was in exercise  of  powers
conferred by the Employees  Provident  Funds  and  Miscellaneous  Provisions
Act, 1952.
5.    On 28th November, 1988 the RSEB, in exercise of  powers  conferred  by
Section 79 of the Electricity (Supply) Act, 1948 made the Employees  Pension
Regulations, 1988 (for short ‘the Pension Regulations’)  and  the  Employees
General Provident Fund Regulations, 1988 (for short ‘the GPF Regulations’).
6.    Both the set of regulations came into effect on  28th  November,  1988
and the existing employees of the RSEB on the cut-off date were entitled  to
exercise an option of either continuing  as  members  of  the  existing  CPF
Scheme or switching to the Pension Scheme  and  the  GPF  Scheme  under  the
Pension Regulations and the GPF Regulations respectively within a period  of
90 days from the date of commencement  of  the  GPF  Scheme.   Such  of  the
employees  of  the  RSEB,  who  joined  after  28th  November,   1988   were
automatically governed by the Pension Regulations and the  GPF  Regulations.
The switch-over option was, therefore, available  to  only  those  employees
who were on the rolls of the RSEB on the cut-off date.
7.    On 6th January, 1989 the RSEB issued a notice giving an option to  the
existing employees (including the  respondents)  to  switch  over  from  the
existing CPF Scheme to the Pension and GPF Regulations.
8.    The notice stated, inter alia, that the switch-over option  should  be
exercised by the employee in writing within a period of  90  days  from  the
date of its issue and  that  no  request  for  extension  of  time,  seeking
clarification or review would be entertained.  Significantly, it was  stated
in the notice that if an employee does not exercise his clear option  within
the specified time limit, he shall be deemed to have retained  the  benefits
available to him under the CPF Scheme to  which  he  was  already  entitled.
The notice set out  the  procedure  for  exercising  the  option,  which  is
forwarding it to the concerned officers.
9.    The notice also stated that it  should  be  given  wide  publicity  by
pasting it on the notice board of various offices under the  RSEB.   It  was
stated in the notice that pasting would be treated as sufficient notice  for
all the Board employees for whom it was intended.
10.   The respondents did not exercise their option in terms of  the  notice
dated 6th January, 1989 although as many as 2741 employees  exercised  their
switch-over option.
11.   The RSEB issued a second notice dated 4th April,  1989  extending  the
period for exercising the switch-over option for another 45 days  after  the
expiry of the period of the first option of  90  days  given  in  the  first
notice dated 6th January, 1989.  The second  notice  was  issued  since  the
first notice was not published in Hindi which  inhibited  the  employees  of
the RSEB in exercising the switch-over option  within  the  prescribed  time
limit.
12.   The second notice did  not  mention  anything  about  giving  it  wide
publicity but it appears that in keeping with the mandate  mentioned in  the
first notice dated  6th  January,  1989  this  notice  too  was  given  wide
publicity since it resulted in as many as 31,217 employees exercising  their
switch-over option within the period of 45 days.
13.   A third notice dated 19th May, 1990 was issued by the  RSEB  extending
the period of the switch-over option up to 30th June, 1990  that  is  for  a
period of about 40 days.  The occasion for  issuing  the  third  notice  was
that references were received by the RSEB from ‘various corners’  to  extend
the period of exercising the option for a further period of 45 days.
14.   In terms of the Pension Regulations daily rated/work charge  employees
were excluded from the scope of the  Pension  Regulations  and  even  though
some of them were given a regular pay scale  with  effect  from  1st  April,
1989 they could not exercise the switch-over option since they were  not  on
a regular pay scale/service on the  cut-off  date  that  is  28th  November,
1988.  The third notice was issued to give the benefit of  the  Pension  and
GPF Regulations to such daily rated/work charge employees as well as to  the
regular employees covered by the CPF Scheme. It was mentioned in the  notice
that this would be the last and final opportunity for exercising the switch-
over  option  and  that  the  employees,  both  regular  as  well  as  daily
rated/work charge employees should  ensure  that  their  option  forms  were
received by the concerned authority within the prescribed  time  limit  that
is 30th June, 1990 positively.  As  many  as  3972  employees  of  the  RSEB
exercised their switch-over option in response to the third notice.
15.   The RSEB issued a fourth notice dated 17th September,  1991  extending
the time limit for exercising the switch-over option by a further period  of
90 days.  This was on the basis of references having been made to  the  RSEB
from ‘various corners’ to allow one more opportunity to exercise the  option
for obtaining the benefits  under  the  Pension  and  GPF  Regulations.  The
fourth notice mentioned that in  case  an  employee  did  not  exercise  the
option within the period of 90 days it would be deemed that he had  retained
the benefits available to him under the  CPF  Scheme.  In  response  to  the
fourth notice, as many  as  2741  employees  of  the  RSEB  exercised  their
option.
16.   A fifth notice was issued by the RSEB on 27th January, 1993 which  was
in the form of an order.  This related to counting of the period of  service
for  pension  purposes  of  work  charge  employees  who  were  absorbed  or
appointed to regular posts under the RSEB.
17.   It was stated that the work charge employees  of  the  RSEB  who  were
absorbed/appointed on a regular basis  would  be  allowed  to  exercise  the
switch-over option subject to certain  conditions.   The  option  to  switch
over was to be exercised in writing up to 15th March, 1993 that is within  a
period of about 45 days.  It was  specifically  stated  in  the  order  that
those employees who do not exercise the option within the  aforesaid  period
would be deemed to have retained the benefits under  the  CPF  Scheme.   The
benefit of the order dated 27th January, 1993 was  also  extended  to  those
work charge employees who were brought on a regular post on  or  after  28th
November, 1988 but had died before exercising their option.  In  respect  of
these persons, the order stated that they would be deemed to have opted  for
pension unless the members of the family of the deceased  specifically  make
a request that they may be paid CPF  benefits  due  to  the  deceased.  This
order also conferred a benefit on  those  employees  of  the  RSEB  who  had
retired after 28th November, 1988 but prior to the issue of  the  order  and
had received the retirement benefits admissible under the CPF Scheme.   They
too were made  entitled  to  exercise  the  switch-over  option  subject  to
certain conditions.  As many as 2749 employees  exercised  their  option  in
response to the fifth notice.
18.   A sixth notice was issued by the RSEB on 8th May, 1995  extending  the
benefit of the switch-over  option  to  the  existing  employees  till  31st
March, 1996 that is for an extended  period  of  about  320  days.   It  was
mentioned that in case the switch-over option was not  exercised,  it  shall
be deemed that the employee has retained  the  existing  CPF  benefits.  The
number of options exercised in response to the sixth notice was 4460.
19.   A seventh notice was issued by the RSEB on  22nd  August,  1995  as  a
result of representations received from retired  employees  who  desired  to
switch to the Pension and GPF Regulations but had failed  to  avail  of  the
opportunity despite the notice dated 17th September, 1991 either because  of
ignorance or some erroneous understanding.  The period  for  exercising  the
option was available till 30th November, 1995.  The  notice  mentioned  that
pasting the seventh notice on the notice boards of the  various  offices  of
the RSEB would be treated as sufficient notice to all the retired  employees
of the RSEB.
20.   The eighth and final notice was issued by the RSEB  on  4th  February,
1997 in which it was stated that all employees in regular pay scales on  the
cut-off date of 28th November, 1988 who could not avail the  opportunity  of
exercising the switch-over option but who were still in the services of  the
RSEB could now exercise their option by 30th June, 1997.  It was  reiterated
that those employees who could not exercise their option  before  the  final
date would be deemed to have retained the CPF benefits  available  to  them.
The RSEB received the options of 5076 employees in response  to  the  eighth
notice.
21.   Eventually, on 12th March, 1999 the RSEB communicated  a  decision  to
the effect that several opportunities had been given  to  the  employees  to
switch  over  to  the  Pension  and  GPF  Regulations  but   despite   this,
representations were pouring in to allow one more opportunity to  switch  to
the pension benefits.  It was  felt  that  it  would  not  be  desirable  to
provide any more such  opportunities  otherwise  it  would  become  a  never
ending exercise. Therefore, it was made clear that any request for  allowing
an opportunity to exercise the switch-over option would not  be  entertained
under any circumstances.
22.   In the meanwhile, a meeting of the Whole-Time Members of the RSEB  and
the Heads of Department was held on  4th  January,  1995  in  which  it  was
decided, inter alia, that although the last date for exercising the  switch-
over option had expired in 1991,  representations  were  being  received  to
extend the date.  Therefore,  looking  into  the  difficulty  faced  by  the
employees, it was decided that the facility of  exercising  the  switch-over
option would be available to the existing employees up to six  months  prior
to the date of retirement, that is, the employee could opt for  Pension  and
GPF Regulations while in service.  According to the respondents,  by  virtue
of this decision, such of the employees who are still  in  service  can  yet
accept the switch-over option.  But according  to  the  RSEB,  the  decision
taken on 4th January, 1995 stands obliterated by the sixth notice  given  on
8th May, 1995, the seventh notice given on 22nd August, 1995 and the  eighth
notice given on 4th February, 1997 read with the  final  decision  taken  on
12th March, 1999 closing the receipt of switch-over options.
23.   At this stage, it may be  mentioned  that  the  Rajasthan  Legislature
enacted the Rajasthan Power Sector Reforms Act, 1999 which resulted  in  the
Rajasthan Power Sector Reforms Transfer Scheme 2000, which in turn  resulted
in the unbundling of the RSEB into five companies. The  five  companies  are
owned and controlled by the Government  of  Rajasthan  and  their  employees
have been absorbed on the same terms and  conditions  governing  them  while
they were employees of the RSEB.  The unbundling of the RSEB does  not  have
any consequence so far as the decision in these  appeals  is  concerned  but
this fact is mentioned only to complete the  record.  For  convenience,  the
expression RSEB refers to both the erstwhile RSEB as well  as  the  entities
post the unbundling of the RSEB.
Proceedings in the High Court
24.   Consequent to the decision communicated on 12th  March,  1999  whereby
the option of switching over from the CPF Scheme  to  the  Pension  and  GPF
Regulations was not extended, a large number of aggrieved employees  of  the
RSEB filed Writ Petitions in  the  Rajasthan  High  Court.   In  these  Writ
Petitions the challenge was to the closure of the  switch-over  option.  The
writ petitioners also claimed a declaration of being  entitled  to  all  the
pension benefits available under the Pension and GPF Regulations upon  their
retirement.  These Writ Petitions came  to  be  disposed  of  by  a  learned
Single Judge of the Rajasthan High Court by an order  dated  28th  February,
2008 with a direction that the writ petitioners may submit a  representation
to the RSEB  voicing  their  grievances  and  the  RSEB  should  decide  the
representation within a month.
25.   The order dated 28th February, 2008  was  followed  in  several  other
Writ Petitions filed by aggrieved employees and they  made  as  many  as  30
representations to the RSEB pursuant to the various  orders  passed  by  the
Rajasthan High Court in over 30 writ petitions.  By  an  extremely  detailed
order dated 26th June, 2008 the RSEB disposed of  these  representations  in
which the issues raised were clearly formulated and findings given  on  each
of the issues.  A little  later,  we  shall  refer  to  two  of  the  issues
relevant for our purposes and the finding thereon.
26.   Not being satisfied with the order  dated  26th  June,  2008  a  large
number of writ petitions came to  be  filed  in  the  Rajasthan  High  Court
challenging that order and  praying  for  quashing  and  setting  aside  the
decision dated 12th March, 1999.   It  was  further  prayed  that  the  writ
petitioners (who  are  respondents  before  us)  be  held  entitled  to  the
benefits in accordance with the Pension and GPF Regulations.  This batch  of
Writ Petitions was heard by a learned Single  Judge  and  by  his  elaborate
judgment and order dated 21st October, 2011 the writ petitions were  allowed
and the communication dated 26th June, 2008 as well as  the  decision  dated
12th March, 1999 were quashed and set aside. It was made clear that all  the
existing employees of the RSEB would be  covered  by  the  Pension  and  GPF
Regulations including the writ petitioners and the legal representatives  of
the deceased employees interested in exercising the switch-over option  from
the CPF to the Pension and GPF Regulations.  It was  further  directed  that
there was no need for any other writ petition to be filed  by  any  existing
employee and that the benefit of the order dated 21st  October,  2011  would
inure to the benefit of all similarly situate employees.
27.   Being aggrieved by the decision of the learned Single Judge  the  RSEB
preferred writ appeals before the Division Bench of the  High  Court.  By  a
judgment and order dated 17th May, 2012 (impugned) the High Court  dismissed
the appeals relying entirely on the elaborate order passed  by  the  learned
Single Judge.  It is under these circumstances that  the  present  batch  of
appeals preferred by the RSEB is before us. For convenience, we  have  taken
the facts from Civil Appeal arising out of SLP (C) No.29639 of 2012.
Submissions
28.   For the sake of convenience a summary of the  various  notices  issued
by the RSEB are put down in the form of a chart:

|No.       |No|Applica-bil|Validity    |Special       |Publicity |Remark    |Options  |
|          |ti|ity        |            |reason        |          |          |received |
|          |ce|           |            |              |          |          |         |
|          |da|           |            |              |          |          |         |
|          |te|           |            |              |          |          |         |
|1st       |06|All        |90 days     |-             |Wide      |On non    |2741     |
|          |.0|employees  |            |              |publicity |receipt of|         |
|          |1.|           |            |              |through   |option,   |         |
|          |19|           |            |              |pasting on|employee  |         |
|          |89|           |            |              |the notice|deemed to |         |
|          |  |           |            |              |board     |have      |         |
|          |  |           |            |              |          |retained  |         |
|          |  |           |            |              |          |CPF       |         |
|          |  |           |            |              |          |benefits  |         |
|2nd       |04|- do -     |45 days     |Non-publicatio|No        |-         |31217    |
|          |.0|           |            |n of Hindi    |specific  |          |         |
|          |4.|           |            |version       |mention   |          |         |
|          |19|           |            |              |          |          |         |
|          |89|           |            |              |          |          |         |
|3rd       |19|All        |30.06.1990  |References    |- do -    |On non    |3972     |
|          |.0|employees  |            |received from |          |receipt of|         |
|          |5.|including  |            |various       |          |option,   |         |
|          |19|daily rated|            |corners       |          |employee  |         |
|          |90|and work   |            |requesting for|          |deemed to |         |
|          |  |charged    |            |an extension  |          |have      |         |
|          |  |employees  |            |              |          |retained  |         |
|          |  |           |            |              |          |CPF       |         |
|          |  |           |            |              |          |benefits  |         |
|4th       |17|All        |90 days     |- do -        |- do -    |- do -    |2741     |
|          |.0|employees  |            |              |          |          |         |
|          |9.|           |            |              |          |          |         |
|          |19|           |            |              |          |          |         |
|          |91|           |            |              |          |          |         |
|5th       |27|Work       |15.03.1993  |-             |- do -    |- do -    |2749     |
|          |.0|charged,   |            |              |          |          |         |
|          |1.|retired and|            |              |          |          |         |
|          |19|deceased   |            |              |          |          |         |
|          |93|           |            |              |          |          |         |
|6th       |08|All        |31.03.1996  |-             |- do -    |- do -    |4460     |
|          |.0|employees  |            |              |          |          |         |
|          |5.|           |            |              |          |          |         |
|          |19|           |            |              |          |          |         |
|          |95|           |            |              |          |          |         |
|7th       |22|Retired    |30.11.1995  |Representati-o|Pasting on|-         |-        |
|          |.0|employees  |            |ns received   |the notice|          |         |
|          |8.|           |            |from retired  |board     |          |         |
|          |19|           |            |employees     |          |          |         |
|          |95|           |            |              |          |          |         |
|8th       |04|All        |30.06.1997  |-             |-         |On non    |5076     |
|          |.0|employees  |            |              |          |receipt of|         |
|          |2.|           |            |              |          |option,   |         |
|          |19|           |            |              |          |employee  |         |
|          |97|           |            |              |          |deemed to |         |
|          |  |           |            |              |          |have      |         |
|          |  |           |            |              |          |retained  |         |
|          |  |           |            |              |          |CPF       |         |
|          |  |           |            |              |          |benefits  |         |

29.   Two things are quite clear from the narration of facts and the  chart.
Firstly, that several opportunities were given to the employees of the  RSEB
(and for prolonged periods) to switch  over  from  the  CPF  Scheme  to  the
Pension and GPF Regulations. It is stated in the rejoinder  affidavit  filed
by the RSEB that in response to the various notices, out of about 50,000  of
its employees, as many  as  about  46,000  had  exercised  their  option  at
different points of time to switch over from the CPF Scheme to  the  Pension
and GPF Regulations.  Therefore, if some of the employees did not  make  the
switch-over,  it may be  for reasons personal to them. Secondly,
the switch-over option was  given  to  various  categories  of  employees  –
regular employees, daily rated employees,  work  charge  employees,  retired
employees and legal representatives  of  deceased  employees.  Within  these
categories were included senior and  junior  officers,  technical  and  non-
technical cadre.  In other words, both high ranked and  lower  ranked  staff
were included for the purposes of the switch-over option.

30.   Given this factual background, it is prima facie difficult  to  accept
the contention of the respondents that they (about 700 of them  and  another
3000+ employees that they represent) were not aware of the Pension  and  GPF
Regulations and therefore, they were unable  to  exercise  their  option  to
switch over before its closure by the decision dated 12th March, 1999.

31.   To repel this prima facie view, some  of  the  reasons  given  by  the
respondents for not exercising the switch-over option  are  as  follows  and
they form the backbone of their submissions:
They were not aware of the various notices issued from time  to  time  since
wide publicity was not given to all the notices.  By way of an  example,  it
has been  mentioned  that  in  response  to  a  query  under  the  Right  to
Information Act, 2005 it was admitted by the RSEB that the notice dated  4th
February, 1997 was not received or circulated in Suratgarh.
Many of the respondents were posted in remote areas  of  Rajasthan  such  as
Jaisalmer, Barmer,  Sirohi,  Banswara  etc.   There  were  no  communication
facilities in these remote places and therefore they could not become  aware
of the notices issued by the RSEB from time to time.
Many of the  respondents  belong  to  junior/technical  cadres  like  peons,
vehicle drivers, helpers, pump  operators,  electricians,  crane  operators,
chowkidars etc.  Given their status, it is difficult  to  assume  that  they
were aware of the switch-over option.
The  option  letters  required  the  respondents  to  specifically  indicate
whether they opt for continuing to remain with the CPF Scheme  or  they  opt
to switch to the Pension and GPF Regulations.  This necessarily  means  that
each employee of the RSEB was required to be individually  informed  of  the
switch-over option. Admittedly, individual notices were not sent to all  the
employees of the RSEB.
Issue of awareness
32.   As far as the awareness of the respondents of the  switch-over  option
is concerned, we have already mentioned that out of about  50,000  employees
of the RSEB about 46,000 of them had opted  to  switch  over  from  the  CPF
Scheme to the Pension and GPF Regulations.  In other words,  less  than  10%
of the employees did not opt to make a  switch-over.   These  10%  employees
were working with the  RSEB  at  the  relevant  time  and  it  is  generally
unlikely that they would have been unaware  of  the  sea  change  for  their
monetary  benefit  in  their  terms  of  service  with  the  RSEB.   We  can
appreciate that retired employees of the RSEB who may have  shifted  out  of
the State may possibly be unaware of the  availability  of  the  switch-over
option (although that is also unlikely over a prolonged period of  8  years)
but it is difficult to appreciate how a working employee of the RSEB who  is
in day to day touch with the organization would be unaware  of  the  switch-
over option for such a long period.
33.   As regards the contention  of  the  respondents  that  their  lack  of
awareness was due to the absence of adequate publicity being  given  to  the
switch-over option,  we  need  only  mention  that  the  chart  given  above
indicates that even though the notice dated 4th April, 1989 did not  mention
anything about giving wide publicity to the  switch-over  option,  yet  more
than 31,000 employees gave their  option  pursuant  to  that  notice.   Even
thereafter, between  2,000  and  5,000+  employees  exercised  their  option
whenever the notice for exercising the switch-over option was  issued.  This
clearly suggests to us that wide and adequate publicity  was  given  to  the
various notices issued by the RBEB from time to time, even  if  it  was  not
specifically mentioned in each individual notice, otherwise there could  not
have been such an overwhelming response to  every  notice  resulting  in  as
many as about 46,000 employees out of 50,000 employees of  the  RSEB  opting
to switch-over from the CPF Scheme to the Pension and GPF Regulations.
34.   To rebut the presumption of their awareness, it is  submitted  by  the
respondents that all of them were posted in remote areas of  Rajasthan  such
as Jaisalmer, Barmer, Sirohi, Banswara etc. and it is for this  reason  that
they were not aware of the switch-over option.  There is nothing to  support
this claim by the respondents except a bald statement. Even  otherwise,  the
respondents were admittedly in transferable jobs and  it  is  unlikely  that
each one of them continued to remain in one or  the  other  remote  area  of
Rajasthan for as long as 8 years from 1989 to 1997.   On  the  contrary,  it
was not denied during the hearing of these appeals that the respondents  had
been transferred at least once during the period of 8 years when the switch-
over option was available.  Where they were  posted  from  time  to  time  –
whether in a remote area or  in  a  not  so  remote  area  –  has  not  been
disclosed.  It is difficult to  accept  that  the  respondents  were  always
posted in remote areas of Rajasthan We,  therefore,  cannot  accept  such  a
bald statement by the respondents.
35.   That apart, from the rejoinder affidavit  filed  by  the  RSEB  it  is
clear that quite a few of the  respondents  were  posted  in  Jaisalmer  and
Barmer which are certainly  not  remote  parts  of  Rajasthan.   As  regards
Sirohi and Banswara, it has been stated in the rejoinder affidavit filed  by
the RSEB that as many  as  1476  employees  from  these  (and  other  remote
places) had exercised their option to switch-over from  the  CPF  Scheme  to
the Pension and GPF Regulations.  Given these facts,  it  is  doubtful  that
the respondents were blissfully unaware of the existence of the Pension  and
GPF Regulations.
36.   It was submitted by the respondents that apart from the  notice  dated
6th January, 1989 none of the other notices were given  wide  publicity  and
in fact the subsequent notices do not even mention that wide  publicity  was
required to be given. It is for this reason that  the  respondents,  located
in  remote  areas  of  Rajasthan  were  unaware  of  the  Pension  and   GPF
Regulations. To support their contention that wide publicity was  not  given
to subsequent notices, the respondents relied upon the response  dated  26th
November, 2007 to a query raised under the Right to  Information  Act,  2005
which states that the notice dated 4th February, 1997 was  not  received  in
the  office  of  the  Executive  Engineer  (Prot.)  Ratangarh  nor  was   it
dispatched to the Assistant Engineer (Prot.) Suratgarh.
37.   Reliance was also placed upon a similar  letter  dated  5th  December,
2007 which is again with reference to the notice dated  4th  February,  1997
and its receipt in Ratangarh and dispatch to Suratgarh.
38.   Apart from the fact that the reference pertains to  only  one  notice,
it cannot be said that this would conclusively demonstrate  or  conclusively
suggest that the notice dated 4th February, 1997 was not received  in  other
parts of Rajasthan or other places close to Suratgarh.  It has  been  stated
by the RSEB in their rejoinder affidavit  that  so  far  as  the  office  in
Suratgarh is concerned, there were 4 employees who  had  joined  service  in
Suratgarh post-1988 and who were automatically entitled to  the  benefit  of
the Pension and GPF Regulations and  2 persons who were similarly placed  as
the respondents had in fact exercised their switch-over  option.  Therefore,
it is not that the employees in Suratgarh were  completely  unaware  of  the
Pension and GPF Regulations.
39.   It also cannot  be  assumed  on  the  basis  of  the  above  that  the
employees in Suratgarh who were allegedly unaware of  the  Pension  and  GPF
Regulations through the notice dated 4th February, 1997 were also not  aware
of the half a dozen previous notices. Additionally, these allegedly  unaware
persons have not been identified by the respondents and the submission  made
in this regard is quite vague.
40.   We have mentioned above that the reason why  some  employees  did  not
switch over from the CPF Scheme  to  the  Pension  and  GPF  Regulations  is
perhaps because of reasons personal to them. But at the same time,  it  must
be pointed out that the respondents have virtually let the cat  out  of  the
bag by an averment made by them in their  writ  petition  filed  before  the
High Court.  The background to the averment is given below.
41.   The RSEB passed an order on 23rd August, 1997 in which it  was  stated
that the Government of Rajasthan  had  recently  promulgated  the  Rajasthan
Civil Services (Pension) Rules, 1996 as amended from time to time.  In  view
of this, the RSEB decided that the pension, family pension  and  commutation
of pension in respect of its employees would be computed under the  specific
provisions of the Rajasthan Civil Services (Pension) Rules, 1996.
42.    In their writ petition  filed  in  the  High  Court  the  respondents
stated  that  by  virtue  of  this  order  dated  23rd  August,  1997,   the
calculation of pension, family pension and commutation of pension under  the
Pension and GPF Regulations, became more  beneficial  to  the  employees  as
against the provisions in the CPF Scheme.  It is  perhaps  this  computation
benefit made available to the employees of the RSEB  with  the  adoption  of
the Rajasthan  Civil  Services  (Pension)  Rules,  1996  that  prompted  the
respondents to switch-over from the  CPF  Scheme  to  the  Pension  and  GPF
Regulations.  Unfortunately, by that time the period for making the  switch-
over had expired in terms of  the  8th  notice  dated  4th  February,  1997.
Therefore, since the respondents  were  unable  to  take  advantage  of  the
beneficial computation under the Pension and GPF Regulations read  with  the
Rajasthan Civil Services (Pension) Rules, 1996 they seem to have  set  up  a
case of being unaware of the various notices issued by the  RSEB  from  time
to time over a period of 8 years.
43.   All that we can infer from the conduct  of  the  respondents  is  that
they went along with the CPF Scheme so long as it was  beneficial  to  them,
but when the calculation of  pension,  family  pension  and  commutation  of
pension underwent an alteration pursuant to the  order  dated  23rd  August,
1997 the respondents had a change of heart and sought to take  advantage  of
the revised manner of  computation  provided  for  in  the  Rajasthan  Civil
Services (Pension) Rules, 1996.  We can only say  that  the  argument  of  a
lack of awareness of the switch-over option appears  to  be  nothing  but  a
self-serving argument.
44.   Another facet of this argument (which was feebly urged)  is  to  found
in Issue No.5 dealt with by the RSEB in its order dated 26th June,  2008  in
the following words:
“Issue raised
5.    That the erstwhile RSEB adopted R.C.S. (Pension) Rules,  1996  of  the
Govt. of Rajasthan vide  its  order  no.  RSEB/F  &  R/F.3  (10)/D-42  dated
23.8.1997  but  did  not  provide  any  opportunity  to  its  employees  for
exercising option under RSEB Employees Pension Regulation, 1988.

Findings
Issue 5:
That the erstwhile RSEB through RSEB  Regulations  –  1988  issued  separate
pension  rules  for  their  employees.   But  in  the  year  1996,   Finance
Department, GoR issued new Pension Rules in which  computation  of  pension,
family pension, and commutation as well  as  amount  of  pensions  etc.  was
amended or revised.  RSEB vide order No.42/23.8.1997 opted only  computation
for the amount of pension, family pension and commutation, other  provisions
of RSEB Pension Regulations, 1988 remaining unchanged.  It has  no  relation
to the option.  Thus the applicants were not entitled for any re-option  for
pension even after the order dt. 23.8.1997.   There  were  already  given  8
opportunities to switch over to  pension  but  they  retained  CPF  benefits
only.”

45.   We are in agreement with the view expressed by the RSEB that  any  and
every change in the computation of pension or  in  the  Pension  Regulations
(either of the RSEB or the Rajasthan Government) does not  warrant  a  fresh
option being offered to the respondents.
46.   With regard to the submission  that  the  respondents  belong  to  the
junior or technical cadre consisting  of  low  paid  staff  such  as  peons,
vehicle drivers, helpers etc. we need only say that, as pointed out  in  the
rejoinder affidavit of the RSEB, about 100 of  the  respondents  are  senior
level officers holding posts of Head of Office and Head of  Department  with
the RSEB. As per the Pension and GPF Regulations, they  receive  the  option
forms from the employees, countersign them and  then  forward  them  to  the
Controller  of  Accounts.  It  is  extremely  difficult  to   accept   their
contention that they were unaware of the switch-over option.
47.   As regards the junior  technical  and  non-technical  staff,  one  can
assume that the RSEB has a pyramidal structure of staff,  with  the  greater
strength of staff being junior  technical  and  non-technical.  If  that  is
presumably so, then of the about 46,000 employees who have  exercised  their
option, the majority would consist of  junior  technical  and  non-technical
staff. Under the circumstances, it is difficult to believe that  while  such
an extremely large  number  of  employees  were  aware  of  the  switch-over
option, despite  their  lower  hierarchical  status,  the  remaining  junior
technical and non-technical were unaware of the availability of the  switch-
over option, and that too over a prolonged period of 8 years.
48.   Interestingly, the issues framed in the order dated  26th  June,  2008
passed by the RSEB (impugned  in  the  High  Court)  does  not  include  the
alleged lack of awareness of the availability of the switch-over  option  on
the part of the employees who made the  30  representations.  This  argument
seems to have been raised for the first time in the writ petitions filed  by
the respondents. But that is not really material for  a  decision  in  these
appeals.
49.   Ultimately the issue boils down  to  the  overall  assessment  of  the
awareness level of the employees of the RSEB based on  the  available  data.
Based on the facts presented before us, on a composite consideration of  the
facts and taking a  pragmatic  view  of  the  situation,  a  reasonable  and
legitimate inference can be drawn that the respondents  were  aware  of  the
notices issued for the exercise of the switch-over  option  but  they  chose
not to exercise that option either for personal reasons or  perhaps  because
it did not suit them. The position changed in the second half  of  1997,  by
which time it was too late for them to do a rethink.
50.   One of the contentions urged by the respondents  as  writ  petitioners
in the High Court was that  each  employee  should  have  been  individually
served with each notice inviting the  switch-over  option.  That  contention
was accepted by the High Court by relying upon Dakshin Haryana Bijli  Vitran
Nigam and Others v. Bachan Singh[1]  but was not directly  canvassed  before
us. In any event the decision relied upon by the High Court  was  considered
and distinguished in PEPSU Road Transport  Corporation,  Patiala  v.  Mangal
Singh and Others.[2]
51.   The contention in this regard is a bit collateral,  and  it  is  this:
the switch-over option form was required to be filled up  by  each  employee
clearly indicating the option exercised – either to continue  with  the  CPF
Scheme or to switch to the Pension and GPF Regulations. This could  be  done
only if the option form was made available to each employee.
52.   In Dakshin Haryana Bijli Vitran Nigam  the  instructions  relating  to
the exercise of the switch-over option specifically  mentioned  that  “These
instructions may please be got noted from all the employees and  acknowledge
the receipt of the letter.” The appellants therein were unable to show  that
the instructions were actually got noted in writing by  the  respondent.  It
is under these circumstances that it was inferred that  the  respondent  had
no knowledge about the options called by the appellants.  Consequently,  the
denial of pension benefits to the respondent was held bad.
53.   In PEPSU RTC v. Mangal Singh the decision rendered in Dakshin  Haryana
Bijli Vitran Nigam was distinguished on facts  since  in  the  PEPSU  appeal
there was no condition of noting from the employees  or  serving  individual
notices in the Pension Scheme or Regulations. This Court went on to say:
“Furthermore, when  notice  or  knowledge  of  the  Pension  Scheme  can  be
reasonably inferred or gathered from  the  conduct  of  the  respondents  in
their ordinary course of business and from surrounding circumstances,  then,
it will constitute a sufficient notice in the eye of the law.”

54.   The fact situation in the present  appeals  is  somewhat  similar.  In
this context, we may infer that under such  circumstances,  it  was  equally
the responsibility of the respondents to collect the option forms  from  the
concerned  authority,  fill  them  up  and  submit  them  to  the  competent
authority. It is too much to expect that even though it  was  not  necessary
for each individual employee to be served with each notice, yet there was  a
duty cast on the RSEB to ensure that each employee is furnished  a  copy  of
the option form. If such  a  contention  is  accepted,  it  will  amount  to
circuitously accepting that, though the employees need not  individually  be
served the notices, yet they would have to be  individually  served  with  a
copy of the option form.
55.   The second substantive contention urged by  learned  counsel  for  the
respondents was that  the  Whole-Time  Members  of  the  RSEB  had  taken  a
decision on 4th January, 1995 to the following effect:
“It was brought to notice that the last date for giving option  for  Pension
Scheme by the employees under CPF  scheme  had  expired  in  1991  and  many
representations were being received to extend this  date.   Looking  to  the
difficulty of the employees, it was decided that the facility of opting  for
Pension Scheme will also be available upto 6  months  before  retirement  to
the serving employees only i.e.,  the  employee  can  opt  for  GPF  Pension
Scheme while in service”.

56.   This decision was communicated by a letter dated  2nd  February,  1995
to all concerned and according to the respondents they  were  now  given  an
option to switch from the CPF Scheme to the Pension and GPF  Regulations  at
any  time  upto  six  months  prior  to  their  retirement   from   service.
Consequently, it was submitted that the closure of  the  switch-over  option
by the decision dated 12th March, 1999 was not justified.
57.   This contention is also  liable  for  rejection.   Subsequent  to  the
decision taken by the Whole-Time Members  on  4th  January,  1995  the  RBEB
issued a notice  dated  8th  May,  1995  which  effectively  superseded  the
decision taken on 4th January, 1995.   In terms  of  the  notice  dated  8th
May, 1995 the Chairman of the RSEB in  consultation  with  other  Whole-Time
Members extended the period of exercising the switch-over option  till  31st
March, 1996, that is, for a period of more  than  320  days.   Consequently,
the decision taken on 4th January, 1995 was given  a  go-bye  or  overridden
and adequate time was given by  the  notice  dated  8th  May,  1995  to  the
employees of the  RSEB  to  make  a  switch-over,  in  modification  of  the
decision dated 4th January, 1995.
58.   To further benefit the employees of the RSEB (and effectively  confirm
the demise of the decision dated  4th  January,  1995)  another  notice  was
issued on  4th  February,  1997  by  which  the  Chairman  of  the  RSEB  in
consultation with other Whole-Time Members extended the period  of  exercise
of the switch-over option till 30th June, 1997.   In  view  of  these  facts
which demonstrate that the decision dated 4th January  1995  was  no  longer
extant, the respondents cannot bank upon that decision in support  of  their
contention that they can exercise the switch-over  option  upto  six  months
prior to the date of retirement. The final nail in the coffin (if it was  at
all necessary) came through the decision dated 12th March, 1999.
59.   This issue was also considered by the RSEB in  its  order  dated  26th
June, 2008 in the following words, and we endorse that view:
“Issue raised

3.    That all doubts and worries for submitting option for pension  by  the
employees came to rest in the year 1995  when  the  WTMS  and  HODs  of  the
erstwhile RSEB took a decision that  the  facility  of  opting  for  pension
scheme will also be  available  upto  6  months  before  retirement  of  the
serving employees only i.e. the employee can opt GPF  Pension  Scheme  while
in service.  The employee will himself be allowed to  give  option  and  not
his nominee after death and reliance has been placed on circular/letter  no.
RSEB/S/1/F.4(122)/D-155 dated 2-2-1995.

Findings

Issue 3:

That it is true that in a meeting of WTM, such decision  was  taken  but  it
was simply minutes of discussions and was not a decision of competent  Board
of RSEB. In pursuance of minutes of WTM meeting it was never  placed  before
Board for approval and no order/amendment was ever issued of the  nature  of
WTM minutes.  Therefore, it has  never  been  implemented.   The  applicants
have no right to raise it after lapse of long period of 13 years.   However,
even after this decision, general decision was taken by  Board  of  RSEB  to
further give opportunity mentioned hereinunder to opt for pension  and  GPF,
thus, the WTM decision was superseded.
No. RSEB/F&R/F.(Pen)/D.35 dated 8.5.1995
No. RSEB/F&R/F.(Pen)/D.61 dated 22.8.1995
No. RSEB/F&R/F.(Pen)/D.9 dated 4.2.1997
Thus, the decision of WTM required  approval  of  competent  Board  on  such
policy matters. Further Management vide letter/notice/order dated March  12,
1999 clarified that the date of option has been closed and no requests  will
not be considered.  Therefore, the applicants cannot now take the excuse  of
WTM decision of the year 1995 after lapse of a long period of  13  years  as
sufficient opportunities have already been given.”

60.   The final question  that  arises  for  consideration  relates  to  the
right, if any, of the respondents to exercise the switch-over option at  any
point of time or to have it kept alive by the RSEB for an indefinite  period
or at least till the superannuation of the respondents.
61.   In this regard, the definition of  ‘option’  occurring  in  Regulation
2(o)  of  the  Employees  General  Provident  Fund  Regulations,   1988   is
important.  An ‘option’ requires a written consent of the existing  employee
to either continue with the CPF Scheme or to opt for the GPF  Scheme  within
a period of 90 days from the  commencement  of  the  GPF  Regulations.   The
period of 90 days commences with the GPF Regulations coming into force  with
effect from 28th November, 1988.   The  definition  also  provides  that  an
employee who does not exercise the option  within  the  period  of  90  days
shall be deemed to have exercised his option in favour of the  existing  CPF
Scheme.  It is also provided that it will be  “the  personal  responsibility
of the concerned employee/officer to ensure that his option  reaches  timely
in the office of the COA (P&F), RSEB, Jaipur.”  In other words, not only  is
a time limit statutorily prescribed by the GPF  Regulations  for  exercising
the option, but a responsibility has been cast on  the  employee  to  ensure
that  his  option  reaches  the  concerned  authorities  within   the   time
prescribed.
62.   Regulation 2(o) of the Employees General Provident  Fund  Regulations,
1988 reads as follows:-
“Option” means a written consent of the existing employee to  become  either
member of the Employees General Provident Fund Scheme, 1988 or  to  continue
as member of the existing CPF/FPF scheme covered under  the  EPF  Act,  1952
within a period of 90 days  from  the  date  of  commencement  of  Employees
General Provident Fund Scheme, 1988 by the RSEB.  Any existing employee  who
does not exercise the option within specified period of  90  days  shall  be
deemed to have exercised option in favour of the  existing  CPF/FPF  Schemes
covered under the provisions of Employees Provident  Fund  Act,  1952.   The
option once exercised or deemed to have been exercised shall  be  considered
as final and no representation in this respect  shall  be  considered  valid
for any revision.  It will be the personal responsibility of  the  concerned
employee/officer to ensure that his option reaches timely in the  office  of
the COA (P &F), RSEB, Jaipur.  Provided that a  Board  employee  who  is  on
that day out of  India/within  India  on  leave  or  deputation  or  foreign
service or under suspension, may exercise option within one month  from  the
date he takes over the charge of the post, in  case  he  does  not  get  any
intimation for exercising option, within one  month  from  the  date  he  is
required to exercise it.”

63.   Notwithstanding the aforesaid Regulation providing for  a  time  limit
of  90  days  for  exercising  the   switch-over   option,   the   appellant
administratively continued to give one  opportunity  after  another  to  the
employees of the RSEB to exercise their switch-over option.  This  continued
for a period of 8 years and during that period if an employee chose  not  to
exercise his option, it was deemed that  he  would  continue  to  avail  the
benefits under the CPF  Scheme.   Consequently,  if  this  had  any  adverse
financial impact on the employee in the long run (and  realized  by  him  in
1997-98), he had no one else but himself to blame.
64.   As regards the Pension  Scheme,  the  admitted  position  is  that  an
employee could not continue with the CPF Scheme and also avail the  benefits
of the  Pension  Scheme  under  the  Employees  Pension  Regulations,  1988.
However, an employee could avail of both the  GPF  Scheme  as  well  as  the
Pension Scheme.
65.   The Employees Pension  Regulations,  1988  also  defines  ‘option’  in
Regulation 3(l) thereof.  ‘Option’ means a written consent of  the  existing
employee for either  availing  the  pension  and  gratuity  benefits  or  to
continue to be a member of the CPF Scheme.  In other  words,  a  switch-over
option was made available to the employee under the Pension  Regulations  as
well.
66.   Regulation 3(l) of the Employees Pension  Regulation,  1988  reads  as
follows:
“Option” means a written  consent  of  the  existing  regular  employee  for
Pensionary and Gratuity benefits  on  the  same  lines/Rules  as  are  being
allowed to the employees of erstwhile employees of  the  E  &  M  Department
opted Board’s service with Pensionary benefits or  to  continue  to  be  the
member of the CPF/EPF with benefits of RSEB Gratuity Rules, 1972 or  Jodhpur
CPF Scheme with benefit of gratuity under the Gratuity Act, 1972.
Note :- Any person who is not  covered  under  the  definition  of  employee
shall not be entitled to opt for pensionary and  gratuity  benefits  as  per
Board’s/Govt. rules/regulations.”

67.   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.
68.   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.
69.   But, learned  counsel  for  the  respondents  finally  submitted  that
pension is not a charity or a bounty and an employee  is  entitled  to  earn
his pension.  There can be no doubt about  this  proposition  but  when  two
schemes are available to an employee, one  being  the  CPF  Scheme  and  the
other being the Pension Scheme, it is for the employee to choose the  scheme
that he feels more comfortable with and appropriate for  his  purposes.   No
employee can 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.
70.   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.
71.   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.
Civil Appeal No.7503/2014 (Arising out of SLP (C)  No.30577  of  2012  (from
Civil Special Appeal (Writ) No.248 of 2012 in CWP No.13401 of 2008)

72.   In this appeal, it is submitted by learned counsel that the facts  are
slightly different from the rest of the appeals.  It was submitted that  the
writ petitioner had submitted his option on 20th  February,  1996  and  that
was forwarded to the concerned authorities on 6th March, 1996.
73.   By a letter dated 10th April, 1996, the writ petitioner  was  informed
that since his option was conditional, it could not be  accepted.  The  writ
petitioner responded to this by making a representation  dated  20th  April,
1996 to the effect that there was no condition attached to the  exercise  of
option. Nevertheless,  he  clarified  that  the  alleged  condition  may  be
treated as deleted and his option  form  may  be  considered.   However,  it
appears that the option form of the writ petitioner was  not  considered  by
the concerned authorities and that led him to file a writ  petition  in  the
Rajasthan High Court.
Civil Appeal No.7570/2014 (Arising out of SLP (C) No. 9990  of  2013   (from
Civil  Special  Appeal (Writ) No. 237 of 2012 in CWP No. 1079 of 2008)

74.   Learned counsel submitted that the writ petitioner  gave  his  switch-
over option well in time and in fact deductions from  his  salary  had  been
made under the GPF Scheme for several months thereafter.
75.   It appears that the reason for not accepting the option given  by  the
writ petitioner was that he had taken a housing loan under  the  CPF  Scheme
and was requested by a letter dated 18th March, 2000 to  return  the  amount
so that his switch-over option could be considered. Since he  failed  to  do
so, his option was not accepted. The writ petitioner denied receipt  of  the
letter dated 18th March, 2000 and reiterated that deductions had  been  made
from his salary under the GPF Scheme.
Civil Appeal No.7564/2014 (Arising out of SLP (C) No.  9983  of  2013  (from
Civil Special Appeal (Writ) No.257 of 2012 in CWP No. 12230 of 2009)


76.   It is submitted that the writ petitioner exercised his option in  1996
and that was  forwarded  to  the  competent  authority  by  his  controlling
officer (Executive Engineer at Bhilwara)  by  a  letter  dated  30th  March,
1996. Though the option form was received  well  within  time,  it  was  not
accepted.
77.   The entire facts of these cases are not before us nor has the  learned
Single Judge of the High Court specifically discussed these cases.
78.   Consequently, we are not in a position to give any decision  in  these
cases in view of the absence of full facts. We are  of  the  view  that  the
more appropriate course of action to adopt in  these  matters  would  be  to
remand them to a Single Judge of the High Court for fresh  consideration  on
merits after hearing the writ petitioners and the RSEB.
79.   No other distinct or partially dissimilar case was pointed out  to  us
by any learned  counsel  although  the  learned  Single  Judge  has  made  a
reference to a few of them.
Conclusion

80.   All the appeals are allowed but with no order as  to  costs.   Insofar
as Civil Appeals arising out of SLP (C) No.30577 of 2012,  SLP  (C)  No.9990
of 2013 and SLP (C) No.9983 of 2013 are concerned they  are  remitted  to  a
Single Judge of the High Court for a fresh consideration on merits.
                                                               ..……………………..J
                                                          (Madan B. Lokur)


                                                                 .………………………J
New Delhi;                                   (Kurian Joseph)
August 7, 2014
-----------------------
[1]

      [2]                     (2009) 14 SCC 793



[3]

      [4]                     (2011) 11 SCC 702





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