LAW FOR ALL

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

Saturday, August 9, 2014

Grant of Bail at Appeal Stage - High court granted bail - Apex court held that both the Criminal Appeal and Criminal Revision filed by both the parties are pending before the High Court which means that the convictions of the respondents are not confirmed by the appellate court. Secondly, it is an admitted fact that the respondents had been granted bail earlier and they did not misuse the liberty. Also, the respondents had conceded to the occurrence of the incident though with a different version. =CRIMINAL APPEAL NO. 1664 OF 2014 (ARISING OUT OF SLP(Crl.) NO. 2930 OF 2013) SUNIL KUMAR APPELLANT Vs. VIPIN KUMAR AND ORS. RESPONDENTS = 2014 Aug. Part – http://judis.nic.in/supremecourt/filename=41815

Grant of Bail at Appeal Stage - High court granted bail - Apex court held that both the Criminal Appeal and Criminal Revision filed by both the parties are pending before the High Court which means that the convictions of the respondents are not confirmed by the appellate court. Secondly, it is an admitted fact that the respondents had been granted bail
earlier and they did not misuse the liberty. Also, the respondents had conceded to the occurrence of the incident though with a different version. =

389. Suspension of sentence pending the appeal; release of appellant on
bail.

(1) Pending any appeal by a convicted person, the Appellate Court may, for
reasons to be recorded by it in writing, order that the execution of the
sentence or order appealed against be suspended and, also, if he is in
confinement, that he be released on bail, or on his own bond.”

15. The learned senior counsel has also relied upon the decision of this
Court in the case of Vijay Kumar v. Narendra & Ors.[1] and the case of
Kishori Lal v. Rupa[2] wherein this Court has set aside bail granted by the
High Court under Section 389 on the ground that the decision of the High
Courts were not based on sound legal reasoning.

16. On the other hand, while seeking bail for the respondents before the
High Court, the learned senior counsel on behalf of the convicted
respondents contended that the convicted respondents were on bail earlier
but they did not misuse the liberty.

17. It was also contended by the learned senior counsel that the
respondents did not dispute the date, time and place of the incident.
However, there was a different version of the incident according to them.

18. We have heard the rival legal contentions raised by both the parties.
We are of the opinion that the High Court has rightly applied its
discretionary power under Section 389 of CrPC to enlarge the respondents on
bail.
Firstly, both the Criminal Appeal and Criminal Revision filed by both
the parties are pending before the High Court which means that the
convictions of the respondents are not confirmed by the appellate court.
Secondly, it is an admitted fact that the respondents had been granted bail
earlier and they did not misuse the liberty. Also, the respondents had
conceded to the occurrence of the incident though with a different version.

19. We are of the opinion that the High Court has taken into
consideration all the relevant facts including the fact that the chance of
the appeal being heard in the near future is extremely remote, hence, the
High Court has released the respondents on bail on the basis of sound legal
reasoning. We do not wish to interfere with the decision of the High Court
at this stage. The appeal is dismissed accordingly.

2014 Aug. Part – http://judis.nic.in/supremecourt/filename=41815

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1664 OF 2014
(ARISING OUT OF SLP(Crl.) NO. 2930 OF 2013)

SUNIL KUMAR APPELLANT

Vs.

VIPIN KUMAR AND ORS. RESPONDENTS

J U D G M E N T

V.Gopala Gowda, J.

Leave granted.

2. This appeal is filed by the appellant questioning the correctness of
the judgment and final Order dated 18.02.2013 passed by the High Court of
Judicature at Allahabad in Criminal Appeal No. 2684 of 2009 urging various
facts and legal contentions in justification of his claim.

3. Necessary relevant facts are stated hereunder to appreciate the case
of the appellant and also to find out whether the appellant is entitled for
the relief as prayed for in this appeal.

4. It is the case of the prosecution that the appellant, who was at the
time of the incident, studying in an engineering college at Noida, happened
to be at Shikarpur crossing within the police station Kotwali Nagar. At
about 10 a.m. on 27th June 2003, it was then that the convicted respondent
nos. 2 and 3 dragged him into their house and began to assault him. Hearing
the cries, the appellant’s father Shri Khem Chand and brother Shri Rajeev
would arrive at the scene to his rescue. In the scuffle which ensued, both
the father and the brother of the appellant got injured which led to the
consequential death of the appellant’s brother Rajeev. After the FIR and
follow- up investigation by police, charge sheets were submitted by the
police subjecting the convicted respondent nos. 2 and 3 to trial under
Section 302 read with Section 34, Section 307 read with Section 34 of IPC
and for offences under Section 4 read with Section 25 of the Arms Act.
5. The Additional District and Sessions Judge, Bulandshahr on 16.4.2009,
convicted and sentenced the respondent nos. 2 and 3 to various terms of
imprisonment in Sessions trial Nos. 985, 987 and 988 of 2003.

6. In the counter version of the matter, the convicted respondent nos. 2
and 3, while admitting the date, time and place of the incident, claimed
that the appellant and his deceased brother, Rajeev had barged into their
house and attempted to sexually abuse a lady in their house namely Smt.
Kajal. This very criminal behaviour of the appellant and his deceased
brother gave rise to scuffle between the parties which resulted in the
death of the brother of the appellant.

7. On the basis of the complaint of the respondents, the appellant was
put to trial under different charges in cross Sessions trial No. 524 of
2005. The appellant was however acquitted from offences punishable under
Section 376/511, 323 and 324 of IPC.

8. The convicted respondent nos. 2 and 3 filed Criminal Appeal No. 2684
of 2009 against their conviction by the Additional District and Sessions
Judge vide Order dated 16.4.2009. A Criminal Revision No. 1744 of 2009 was
also filed by Smt. Kajal against the acquittal of the appellant from
charges under Section 376 I.P.C. The Criminal Appeal and the Criminal
Revision are still pending for disposal before the High Court.

9. In the meanwhile, the first application for bail moved by the
convicted respondent nos. 2 and 3 in the above Criminal Appeal No. 2684 of
2009 was rejected by the Division Bench of the High Court on 27.7.2011.

10. However, the subsequent application of the convicted Respondent nos.
2 and 3 in the same Criminal Appeal No. 2684 of 2009 was allowed by the
High Court vide Order dated 18.2.2013 requiring them to furnish
individually, a personal bond of Rs.1 lakh with two sureties each, to the
satisfaction of the trial court.
11. It is against this enlargement of the respondent nos. 2 and 3 on bail
by the High Court, that the appellant has appealed before us.

12. It has been contended by the learned senior counsel appearing on
behalf of the State that the High Court erred in granting bail to the
respondents in exercise of power under Section 389 of CrPC without
assigning any legal and acceptable reason being oblivious to the nature and
gravity of the offence, the evidence being led thereof and the punishment
awarded by the trial court.

13. It was further contended by the learned senior counsel that the
deceased and the father of the appellant were assaulted with repeated blows
on chest, head and shoulder. This is to say that the deceased was assaulted
mercilessly by the respondents. Therefore, they do not deserve to be
enlarged on bail by the High Court.

14. The learned senior counsel further cited Section 389 of the CrPC
which holds as under to contend that the High Court is required to record
reasons in writing as to why an accused is enlarged on bail under Section
389.
“389. Suspension of sentence pending the appeal; release of appellant on
bail.

(1) Pending any appeal by a convicted person, the Appellate Court may, for
reasons to be recorded by it in writing, order that the execution of the
sentence or order appealed against be suspended and, also, if he is in
confinement, that he be released on bail, or on his own bond.”

15. The learned senior counsel has also relied upon the decision of this
Court in the case of Vijay Kumar v. Narendra & Ors.[1] and the case of
Kishori Lal v. Rupa[2] wherein this Court has set aside bail granted by the
High Court under Section 389 on the ground that the decision of the High
Courts were not based on sound legal reasoning.

16. On the other hand, while seeking bail for the respondents before the
High Court, the learned senior counsel on behalf of the convicted
respondents contended that the convicted respondents were on bail earlier
but they did not misuse the liberty.

17. It was also contended by the learned senior counsel that the
respondents did not dispute the date, time and place of the incident.
However, there was a different version of the incident according to them.

18. We have heard the rival legal contentions raised by both the parties.
We are of the opinion that the High Court has rightly applied its
discretionary power under Section 389 of CrPC to enlarge the respondents on
bail. Firstly, both the Criminal Appeal and Criminal Revision filed by both
the parties are pending before the High Court which means that the
convictions of the respondents are not confirmed by the appellate court.
Secondly, it is an admitted fact that the respondents had been granted bail
earlier and they did not misuse the liberty. Also, the respondents had
conceded to the occurrence of the incident though with a different version.

19. We are of the opinion that the High Court has taken into
consideration all the relevant facts including the fact that the chance of
the appeal being heard in the near future is extremely remote, hence, the
High Court has released the respondents on bail on the basis of sound legal
reasoning. We do not wish to interfere with the decision of the High Court
at this stage. The appeal is dismissed accordingly.

……………………………………………………J. [DIPAK MISRA]

……………………………………………………J. [V. GOPALA GOWDA]

New Delhi, August 7, 2014
-----------------------
[1] (2002) 9 SCC 364
[2] (2004) 7 SCC 638

Writ Petition - Territorial Jurisdiction - Disability compensation - was refused while he was in Gaya - As per interim order compensation was paid at Patna - at final hearing Patna High court dismissed the Writ - Apex court held that Prima facie, therefore, considering all the facts together, a part or fraction of cause of action arose within the jurisdiction of the Patna High Court where he received a letter of refusal disentitling him from disability compensation.in our considered opinion, the writ petition ought not to have been dismissed for want of territorial jurisdiction. As noticed above, at the time when the writ petition was heard for the purpose of grant of interim relief, the respondents instead of raising any objection with regard to territorial jurisdiction opposed the prayer on the ground that the writ petitioner- appellant was offered an amount of Rs.2.75 lakhs, but he refused to accept the same and challenged the order granting severance compensation by filing the writ petition. The impugned order, therefore, cannot be sustained in the peculiar facts and circumstances of this case.=CIVIL APPEAL NO.7414 OF 2014 (arising out of SLP (C) No.19549 of 2013) Nawal Kishore Sharma ….Appellant(s) Versus Union of India and Others …Respondent(s) = 2014 Aug. Part – http://judis.nic.in/supremecourt/filename=41814

Writ Petition - Territorial Jurisdiction -  Disability compensation - was refused while he was in Gaya - As per interim order compensation was paid at Patna - at final hearing Patna High court dismissed the Writ - Apex court held that Prima facie, therefore, considering all the facts together, a part or fraction of cause of action arose within the jurisdiction of the Patna High Court where he received a letter of refusal disentitling him from disability compensation.in our considered opinion, the writ petition ought not to have been dismissed for want of
territorial jurisdiction.  As noticed above,  at the time when the writ petition was heard for the purpose of grant of interim relief, the respondents instead of raising any objection with regard to territorial jurisdiction opposed the prayer on the ground that the writ petitioner-
appellant was offered an amount of Rs.2.75 lakhs, but he refused to accept the same and challenged the order granting severance compensation by filing the writ petition.  The impugned order, therefore, cannot be sustained in the peculiar facts and circumstances of this case.=

We have perused the facts pleaded in the writ petition and the
documents relied upon by the appellant.
Indisputably, the appellant
reported sickness on account of various ailments including difficulty in
breathing. He was referred to hospital.
Consequently, he was signed off
for further medical treatment. Finally, the respondent permanently
declared the appellant unfit for sea service due to dilated cardiomyopathy
(heart muscles disease).
As a result, the Shipping Department of the
Government of India issued an order on 12.4.2011 cancelling the
registration of the appellant as a seaman. A copy of the letter was sent
to the appellant at his native place in Bihar where he was staying after he
was found medically unfit.
It further appears that the appellant sent a
representation from his home in the State of Bihar to the respondent
claiming disability compensation.
The said representation was replied by
the respondent, which was addressed to him on his home address in Gaya,
Bihar rejecting his claim for disability compensation.
It is further
evident that when the appellant was signed off and declared medically
unfit, he returned back to his home in the District of Gaya, Bihar and,
thereafter, he made all claims and filed representation from his home
address at Gaya and those letters and representations were entertained by
the respondents and replied and a decision on those representations were
communicated to him on his home address in Bihar.
Admittedly, appellant
was suffering from serious heart muscles disease (Dilated Cardiomyopathy)
and breathing problem which forced him to stay in native place, wherefrom
he had been making all correspondence with regard to his disability
compensation.
Prima facie, therefore, considering all the facts together,
a part or fraction of cause of action arose within the jurisdiction of the
Patna High Court where he received a letter of refusal disentitling him
from disability compensation.

21. Apart from that, from the counter affidavit of the respondents and
the documents annexed therewith, it reveals that after the writ petition
was filed in the Patna High Court, the same was entertained and notices
were issued.
Pursuant to the said notice, the respondents appeared and
participated in the proceedings in the High Court.
It further reveals that
after hearing the counsel appearing for both the parties, the High Court
passed an interim order on 18.9.2012 directing the authorities of Shipping
Corporation of India to pay at least a sum of Rs.2.75 lakhs, which shall be
subject to the result of the writ petition.
Pursuant to the interim order,
the respondent Shipping Corporation of India remitted Rs.2,67,270/- (after
deduction of income tax) to the bank account of the appellant.
However,
when the writ petition was taken up for hearing, the High Court took the
view that no cause of action, not even a fraction of cause of action, has
arisen within its territorial jurisdiction.

22. Considering the entire facts of the case narrated hereinbefore
including the interim order passed by the High Court, in our considered
opinion, the writ petition ought not to have been dismissed for want of
territorial jurisdiction.
As noticed above, at the time when the writ
petition was heard for the purpose of grant of interim relief, the
respondents instead of raising any objection with regard to territorial
jurisdiction opposed the prayer on the ground that the writ petitioner-
appellant was offered an amount of Rs.2.75 lakhs, but he refused to accept
the same and challenged the order granting severance compensation by filing
the writ petition. The impugned order, therefore, cannot be sustained in
the peculiar facts and circumstances of this case.

23. In the aforesaid, the appeal is allowed and the impugned order passed
by the High Court is set aside and the matter is remitted to the High Court
for deciding the writ petition on merits.

2014 Aug. Part – http://judis.nic.in/supremecourt/filename=41814

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7414 OF 2014
(arising out of SLP (C) No.19549 of 2013)

Nawal Kishore Sharma ….Appellant(s)
Versus
Union of India and Others …Respondent(s)

JUDGMENT
M.Y. EQBAL, J.

1. Leave granted.
2. Aggrieved by the judgment and order dated 16.4.2013 passed by learned
Single Judge of Patna High Court dismissing appellant’s writ petition for
want of territorial jurisdiction, this appeal by special leave has been
preferred by the appellant, who in November, 1988 had joined the off-shore
Department of the Shipping Corporation of India (in short, “the
Corporation”) and after about eight years he was transferred from the off-
shore duty to a main fleet in the Foreign Going Department.

3. It is the case of the appellant that he was found medically fit in
the medical test conducted by the Marine Medical Services in February, 2009
and thereafter, on 29.9.2009, an agreement known as the articles of
agreement for employment of seafarers was executed for appellant’s off-
shore duty. On 18.6.2010, when the appellant reported sickness i.e. cough,
abdominal pain, swelling in leg and difficulty in breathing, he was sent
for medical treatment ashore at Adani, Mundra Port. The Medical Officer
ashore advised him for admission in the Hospital and accordingly he was
signed off for further medical treatment. Thereafter, he was considered
permanently unfit for sea service due to dilated cardiomyopathy (heart
muscle disease) as per certificate dated 18.3.2011 issued by Corporation’s
Assistant Medical Officer. Consequently, the Shipping Department of the
Government of India, Mumbai issued order dated 12.4.2011 cancelling
registration of the appellant as a Seaman.

4. It is contended by the appellant that after he settled at his native
place Gaya, Bihar, he sent several letters/ representations from there to
the respondents for his financial claims as per statutory provisions and
terms of contract. On the disability compensation claim, Respondent no.2-
Corporation communicated vide letter dated 7.10.2011 that since the
appellant was declared unfit for sea service due to heart problem (organic
ailment) he will be entitled to receive severance compensation of
Rs.2,75,000/-, which was although offered, but not accepted by the
appellant. It was also informed that he is not entitled to receive
disability compensation, which becomes payable only in case a seaman
becomes incapacitated as a result of the injury.

5. By filing a writ petition, the appellant approached Patna High Court
under Article 226 of the Constitution of India for grant of various reliefs
including 100% disability compensation and pecuniary damages. However, at
the time of hearing, respondents raised the question of maintainability of
the writ petition on the ground that no cause of action or even a fraction
of cause of action arose within the territorial jurisdiction of the Patna
High Court and contended that the appellant was appointed by the
Corporation on the post of Seaman for off-shore services and he discharged
his duty outside the territory of the State of Bihar. It is the case of
the respondent that the order declaring the appellant permanently unfit as
well as the letter/order dated 7.10.2011 was passed by an authority of the
respondent Corporation at Mumbai. Per contra, it is the case of the
appellant that he is a permanent resident of Bihar and he asserted his
rights in the State of Bihar and all communications with respect to
rejection of his claims were made at his residential address in the State
of Bihar.
6. After hearing learned counsel appearing for the parties and
considering entire materials on record, learned Single Judge of the Patna
High Court dismissed the writ petition of the appellant holding that no
cause of action, not even a fraction of cause of action, arose within its
territorial jurisdiction. Hence, the present appeal by special leave.

7. We have heard learned counsel appearing for the parties.
8. The short question that falls for consideration in the facts of the
present case is that as to whether the Patna High Court is correct in
taking the view that it has no jurisdiction to entertain the writ petition.
For answering the said question we would like to consider the provision of
Article 226 of the Constitution as it stood prior to amendment.
Originally, Article 226 of the Constitution read as under:-
“Art.226. Power of High Courts to issue certain writs. – (1)
Notwithstanding anything in article 32, every High Court shall have power,
throughout the territories in relation to which it exercises jurisdiction,
to issue to any person or authority, including in appropriate cases any
Government, within those territories directions, orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, or any of them or the enforcement of any of the rights
conferred by Part III and for any other purpose.
(2) The power conferred on a High Court by clause (1) shall not be in
derogation of the power conferred on the Supreme Court by clause (2) of
article 32”.

9. While interpreting the aforesaid provision the Constitution Bench of
this Court in the case of Election Commission, India vs. Saka Venkata Rao,
AIR 1953 SC 210, held that the writ court would not run beyond the
territories subject to its jurisdiction and that the person or the
authority affected by the writ must be amenable to court’s jurisdiction
either by residence or location within those territories. The rule that
cause of action attracts jurisdiction in suits is based on statutory
enactment and cannot apply to writs issued under Article 226 of the
Constitution which makes no reference to any cause of action or where it
arises but insist on the presence of the person or authority within the
territories in relation to which High Court exercises jurisdiction. In
another Constitution Bench judgment of this Court in K.S. Rashid and Son
vs. Income tax Investigation Commission Etc., AIR 1954 SC 207, this Court
took the similar view and held that the writ court cannot exercise its
power under Article 226 beyond its territorial jurisdiction. The Court was
of the view that the exercise of power conferred by Article 226 was subject
to a two-fold limitation viz., firstly, the power is to be exercised in
relation to which it exercises jurisdiction and secondly, the person or
authority on whom the High Court is empowered to issue writ must be within
those territories. These two Constitution Bench judgments came for
consideration before a larger Bench of seven Judges of this Court in the
case of Lt. Col. Khajoor Singh vs. Union of India and another, AIR 1961
SC 532. The Bench approved the aforementioned two Constitution Bench
judgments and opined that unless there are clear and compelling reasons,
which cannot be denied, writ court cannot exercise jurisdiction under
Article 226 of the Constitution beyond its territorial jurisdiction.

10. The interpretation given by this Court in the aforesaid decisions
resulted in undue hardship and inconvenience to the citizens to invoke writ
jurisdiction. As a result, Clause 1(A) was inserted in Article 226 by the
Constitution (15th) Amendment Act, 1963 and subsequently renumbered as
Clause (2) by the Constitution (42nd) Amendment Act, 1976. The amended
Clause (2) now reads as under:-
“226. Power of the High Courts to issue certain writs – (1) Notwithstanding
anything in article 32, every High Court shall have power, throughout the
territories in relation to which it exercises jurisdiction, to issue to any
person or authority, including in appropriate cases, any Government, within
those territories directions, orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, or any of them, for the enforcement of any of the rights
conferred by Part III and for any other purpose.
(2) The power conferred by Clause (1) to issue directions, orders or
writs to any Government, authority or person may also be exercised by any
High Court exercising jurisdiction in relation to the territories within
which the cause of action, wholly or in part, arises for the exercise of
such power, notwithstanding that the seat of such Government or authority
or the residence of such person is not within those territories.
(3) xxxxx
(4) xxxxx”

11. On a plain reading of the amended provisions in Clause (2), it is
clear that now High Court can issue a writ when the person or the authority
against whom the writ is issued is located outside its territorial
jurisdiction, if the cause of action wholly or partially arises within the
court’s territorial jurisdiction. Cause of action for the purpose of
Article 226 (2) of the Constitution, for all intent and purpose must be
assigned the same meaning as envisaged under Section 20(c) of the Code of
Civil Procedure. The expression cause of action has not been defined
either in the Code of Civil Procedure or the Constitution. Cause of action
is bundle of facts which is necessary for the plaintiff to prove in the
suit before he can succeed.

12. The term ‘cause of action’ as appearing in Clause (2) came for
consideration time and again before this Court.

13. In the case of State of Rajasthan and Others vs. M/s Swaika
Properties and Another, (1985) 3 SCC 217, the fact was that the respondent-
Company having its registered office in Calcutta owned certain land on the
outskirts of Jaipur City was served with notice for acquisition of land
under Rajasthan Urban Improvement Act, 1959. Notice was duly served on the
Company at its registered office at Calcutta. The Company, first appeared
before the Special Court and finally the Calcutta High Court by filing a
writ petition challenging the notification of acquisition. The matter
ultimately came before this Court to answer a question as to whether the
service of notice under Section 52(2) of the Act at the registered office
of the Respondent in Calcutta was an integral part of cause of action and
was it sufficient to invest the Calcutta High Court with a jurisdiction to
entertain the petition challenging the impugned notification. Answering
the question this Court held:-
“7. Upon these facts, we are satisfied that the cause of action neither
wholly nor in part arose within the territorial limits of the Calcutta High
Court and therefore the learned Single Judge had no jurisdiction to issue a
rule nisi on the petition filed by the respondents under Article 226 of the
Constitution or to make the ad interim ex parte prohibitory order
restraining the appellants from taking any steps to take possession of the
land acquired. Under sub-section (5) of Section 52 of the Act the
appellants were entitled to require the respondents to surrender or deliver
possession of the lands acquired forthwith and upon their failure to do so,
take immediate steps to secure such possession under sub-section (6)
thereof.
[pic]8. The expression “cause of action” is tersely defined in Mulla’s Code
of Civil Procedure:
“The ‘cause of action’ means every fact which, if traversed, it would be
necessary for the plaintiff to prove in order to support his right to a
judgment of the court.”
In other words, it is a bundle of facts which taken with the law applicable
to them gives the plaintiff a right to relief against the defendant. The
mere service of notice under Section 52(2) of the Act on the respondents at
their registered office at 18-B, Brabourne Road, Calcutta i.e. within the
territorial limits of the State of West Bengal, could not give rise to a
cause of action within that territory unless the service of such notice was
an integral part of the cause of action. The entire cause of action
culminating in the acquisition of the land under Section 52(1) of the Act
arose within the State of Rajasthan i.e. within the territorial
jurisdiction of the Rajasthan High Court at the Jaipur Bench. The answer to
the question whether service of notice is an integral part of the cause of
action within the meaning of Article 226(2) of the Constitution must depend
upon the nature of the impugned order giving rise to a cause of action. The
notification dated February 8, 1984 issued by the State Government under
Section 52(1) of the Act became effective the moment it was published in
the Official Gazette as thereupon the notified land became vested in the
State Government free from all encumbrances. It was not necessary for the
respondents to plead the service of notice on them by the Special Officer,
Town Planning Department, Jaipur under Section 52(2) for the grant of an
appropriate writ, direction or order under Article 226 of the Constitution
for quashing the notification issued by the State Government under Section
52(1) of the Act. If the respondents felt aggrieved by the acquisition of
their lands situate at Jaipur and wanted to challenge the validity of the
notification issued by the State Government of Rajasthan under Section
52(1) of the Act by a petition under Article 226 of the Constitution, the
remedy of the respondents for the grant of such relief had to be sought by
filing such a petition before the Rajasthan High Court, Jaipur Bench, where
the cause of action wholly or in part arose.”

14. This provision was again considered by this Court in the case of Oil
and Natural Gas Commission vs. Utpal Kumar Basu and others, (1994) 4 SCC
711. In this case the petitioner Oil and Natural Gas Commission (ONGC)
through its consultant Engineers India Limited (EIL) issued an
advertisement in the newspaper inviting tenders for setting up of Kerosene
Recovery Processing Unit in Gujarat mentioning that the tenders containing
offers were to be communicated to EIL, New Delhi. After the final decision
was taken by the Steering Committee at New Delhi, the respondent NICCO
moved the Calcutta High Court praying that ONGC be restrained from awarding
the contract to any other party. It was pleaded in the petition that NICCO
came to know of the tender from the publication in the “Times of India”
within the jurisdiction of the Calcutta High Court. This Court by setting
aside the order passed by the Calcutta High Court came to the following
conclusion :-
“6. Therefore, in determining the objection of lack of territorial
jurisdiction the court must take all the facts pleaded in support of the
cause of action into consideration albeit without embarking upon an enquiry
as to the correctness or otherwise of the said facts. In other words the
question whether a High Court has territorial jurisdiction to entertain a
writ petition must be answered on the basis of the averments made in the
petition, the truth or otherwise whereof being immaterial. To put it
differently, the question of territorial jurisdiction must be decided on
the facts pleaded in the petition. Therefore, the question whether in the
instant case the Calcutta High Court had jurisdiction to entertain and
decide the writ petition in question even on the facts alleged must depend
upon whether the averments made in paragraphs 5, 7, 18, 22, 26 and 43 are
sufficient in law to establish that a part of the cause of action had
arisen within the jurisdiction of the Calcutta High Court.”

15. In Kusum Ingots & Alloys Ltd. vs. Union of India and Another, (2004)
6 SCC 254, this Court elaborately discussed Clause (2) of Article 226 of
the Constitution, particularly the meaning of the word ‘cause of action’
with reference to Section 20(c) and Section 141 of the Code of Civil
Procedure and observed:-
“9. Although in view of Section 141 of the Code of Civil Procedure the
provisions thereof would not apply to writ proceedings, the phraseology
used in Section 20(c) of the Code of Civil Procedure and clause (2) of
Article 226, being in pari materia, the decisions of this Court rendered on
interpretation of Section 20(c) CPC shall apply to the writ proceedings
also. Before proceeding to discuss the matter further it may be pointed out
that the entire bundle of facts pleaded need not constitute a cause of
action as what is necessary to be proved before the petitioner can obtain a
decree is the material facts. The expression material facts is also known
as integral facts.
10. Keeping in view the expressions used in clause (2) of Article 226 of
the Constitution of India, indisputably even if a small fraction of cause
of action accrues within the jurisdiction of the Court, the Court will have
jurisdiction in the matter.”

Their Lordships further observed as under:-

“29. In view of clause (2) of Article 226 of the Constitution of India, now
if a part of cause of action arises outside the jurisdiction of the High
Court, it would have jurisdiction to issue a writ. The decision in Khajoor
Singh has, thus, no application.

30. We must, however, remind ourselves that even if a small part of cause
of action arises within the territorial jurisdiction of the High Court, the
same by itself may not be considered to be a determinative factor
compelling the High Court to decide the matter on merit. In appropriate
cases, the Court may refuse to exercise its discretionary jurisdiction by
invoking the doctrine of forum conveniens.”

16. In the case of Union of India and others vs. Adani Exports Ltd. and
another, (2002) 1 SCC 567, this Court held that in order to confer
jurisdiction on a High Court to entertain a writ petition it must disclose
that the integral facts pleaded in support of the cause of action do
constitute a cause so as to empower the court to decide the dispute and the
entire or a part of it arose within its jurisdiction. Each and every fact
pleaded by the respondents in their application does not ipso facto lead to
the conclusion that those facts give rise to a cause of action within the
Court’s territorial jurisdiction unless those facts are such which have a
nexus or relevance with the lis i.e. involved in the case. This Court
observed:
“17. It is seen from the above that in order to confer jurisdiction on a
High Court to entertain a writ petition or a special civil application as
in this case, the High Court must be satisfied from the entire facts
pleaded in support of the cause of action that those facts do constitute a
cause so as to empower the court to decide a dispute which has, at least in
part, arisen within its jurisdiction. It is clear from the above judgment
that each and every fact pleaded by the respondents in their application
does not ipso facto lead to the conclusion that those facts give rise to a
cause of action within the court’s territorial jurisdiction unless those
facts pleaded are such which have a nexus or relevance with the lis that is
involved in the case. Facts which have no [pic]bearing with the lis or the
dispute involved in the case, do not give rise to a cause of action so as
to confer territorial jurisdiction on the court concerned. If we apply this
principle then we see that none of the facts pleaded in para 16 of the
petition, in our opinion, falls into the category of bundle of facts which
would constitute a cause of action giving rise to a dispute which could
confer territorial jurisdiction on the courts at Ahmedabad.”

17. In Om Prakash Srivastava vs. Union of India and Another (2006) 6
SCC 207, answering a similar question this Court observed that on a plain
reading of Clause(2) of Article 226 it is manifestly clear that the High
Court can exercise power to issue direction, order or writs for the
enforcement of any of the fundamental rights or for any other purpose if
the cause of action in relation to which it exercises jurisdiction
notwithstanding that the seat of the Government or authority or the
residence of the person against whom the direction, order or writ is issued
is not within the said territory. In para 7 this Court observed:-
“7. The question whether or not cause of action wholly or in part for
filing a writ petition has arisen within the territorial limits of any High
Court has to be decided in the light of the nature and character of the
proceedings under Article 226 of the Constitution. In order to maintain a
writ petition, a writ petitioner has to establish that a legal right
claimed by him has prima facie either been infringed or is threatened to be
infringed by the respondent within the territorial limits of the Court’s
jurisdiction and such infringement may take place by causing him actual
injury or threat thereof.”
igh Courts

18. In the case of Rajendran Chingaravelu vs. R.K. Mishra,
Additional Commissioner of Income Tax and Others, (2010) 1 SCC 457, this
Court while considering the scope of Article 226(2) of the Constitution,
particularly the cause of action in maintaining a writ petition, held as
under:

“9. The first question that arises for consideration is whether the Andhra
Pradesh High Court was justified in holding that as the seizure took place
at Chennai (Tamil Nadu), the appellant could not maintain the writ petition
before it. The High Court did not examine whether any part of cause of
action arose in Andhra Pradesh. Clause (2) of Article 226 makes it clear
that the High Court exercising jurisdiction in relation to the territories
within which the cause of action arises wholly or in part, will have
jurisdiction. This would mean that even if a small fraction of the cause of
action (that bundle of facts which gives a petitioner, a right to sue)
accrued within the territories of Andhra Pradesh, the High Court of that
State will have jurisdiction.

xxxxxx

11. Normally, we would have set aside the order and remitted the matter to
the High Court for decision on merits. But from the persuasive submissions
of the appellant, who appeared in person on various dates of hearing, two
things stood out. Firstly, it was clear that the main object of the
petition was to ensure that at least in future, passengers like him are not
put to unnecessary harassment or undue hardship at the airports. He wants a
direction for issuance of clear guidelines and instructions to the
inspecting officers, and introduction of definite and efficient
verification/investigation procedures. He wants changes in the present
protocol where the officers are uncertain of what to do and seek
instructions and indefinitely wait for clearances from higher-ups for each
and every routine step, resulting in the detention of passengers for hours
and hours. In short, he wants the enquiries, verifications and
investigations to be efficient, passenger-friendly and courteous. Secondly,
he wants the Department/officers concerned to acknowledge that he was
unnecessarily harassed.”

19. Regard being had to the discussion made hereinabove, there cannot be
any doubt that the question whether or not cause of action wholly or in
part for filing a writ petition has arisen within the territorial limit of
any High Court has to be decided in the light of the nature and character
of the proceedings under Article 226 of the Constitution. In order to
maintain a writ petition, the petitioner has to establish that a legal
right claimed by him has been infringed by the respondents within the
territorial limit of the Court’s jurisdiction.

20. We have perused the facts pleaded in the writ petition and the
documents relied upon by the appellant. Indisputably, the appellant
reported sickness on account of various ailments including difficulty in
breathing. He was referred to hospital. Consequently, he was signed off
for further medical treatment. Finally, the respondent permanently
declared the appellant unfit for sea service due to dilated cardiomyopathy
(heart muscles disease). As a result, the Shipping Department of the
Government of India issued an order on 12.4.2011 cancelling the
registration of the appellant as a seaman. A copy of the letter was sent
to the appellant at his native place in Bihar where he was staying after he
was found medically unfit. It further appears that the appellant sent a
representation from his home in the State of Bihar to the respondent
claiming disability compensation. The said representation was replied by
the respondent, which was addressed to him on his home address in Gaya,
Bihar rejecting his claim for disability compensation. It is further
evident that when the appellant was signed off and declared medically
unfit, he returned back to his home in the District of Gaya, Bihar and,
thereafter, he made all claims and filed representation from his home
address at Gaya and those letters and representations were entertained by
the respondents and replied and a decision on those representations were
communicated to him on his home address in Bihar. Admittedly, appellant
was suffering from serious heart muscles disease (Dilated Cardiomyopathy)
and breathing problem which forced him to stay in native place, wherefrom
he had been making all correspondence with regard to his disability
compensation. Prima facie, therefore, considering all the facts together,
a part or fraction of cause of action arose within the jurisdiction of the
Patna High Court where he received a letter of refusal disentitling him
from disability compensation.

21. Apart from that, from the counter affidavit of the respondents and
the documents annexed therewith, it reveals that after the writ petition
was filed in the Patna High Court, the same was entertained and notices
were issued. Pursuant to the said notice, the respondents appeared and
participated in the proceedings in the High Court. It further reveals that
after hearing the counsel appearing for both the parties, the High Court
passed an interim order on 18.9.2012 directing the authorities of Shipping
Corporation of India to pay at least a sum of Rs.2.75 lakhs, which shall be
subject to the result of the writ petition. Pursuant to the interim order,
the respondent Shipping Corporation of India remitted Rs.2,67,270/- (after
deduction of income tax) to the bank account of the appellant. However,
when the writ petition was taken up for hearing, the High Court took the
view that no cause of action, not even a fraction of cause of action, has
arisen within its territorial jurisdiction.

22. Considering the entire facts of the case narrated hereinbefore
including the interim order passed by the High Court, in our considered
opinion, the writ petition ought not to have been dismissed for want of
territorial jurisdiction. As noticed above, at the time when the writ
petition was heard for the purpose of grant of interim relief, the
respondents instead of raising any objection with regard to territorial
jurisdiction opposed the prayer on the ground that the writ petitioner-
appellant was offered an amount of Rs.2.75 lakhs, but he refused to accept
the same and challenged the order granting severance compensation by filing
the writ petition. The impugned order, therefore, cannot be sustained in
the peculiar facts and circumstances of this case.

23. In the aforesaid, the appeal is allowed and the impugned order passed
by the High Court is set aside and the matter is remitted to the High Court
for deciding the writ petition on merits.

…………………………….J.
(Ranjan Gogoi)

…………………………….J.
(M.Y. Eqbal)
New Delhi,
August 7, 2014.

Service Matter - Back Door Posting - Temporarily appointed to the post of constable - show cause notice issued and service was also terminated - single judge dismissed the writ - DB allowed the writ - Apex court held that in the absence of any advertisement or selection process, the appointment of the respondent is not protected and could be validly terminated. Learned single Judge was justified in dismissing the writ petition while the Division Bench erred in interfering with the same. =CIVIL APPEAL NO._7392___2014 (Arising out of SLP (C) No.28971 of 2013) State of Bihar and Ors. ... Appellant (s) Versus Chandreshwar Pathak ... Respondent (s) = 2014 Aug. Part – http://judis.nic.in/supremecourt/filename=41813

Service Matter - Back Door Posting - Temporarily appointed to the post of constable - show cause notice issued and service was also terminated - single judge dismissed the writ - DB allowed the writ - Apex court held that in the absence of any advertisement or selection process, the appointment of the respondent is not protected and could be validly terminated. Learned single Judge was justified in dismissing the writ petition while the Division Bench erred in interfering with the same. =

The respondent was temporarily appointed to the post of constable by
the Inspector General of Police, Criminal Investigation Department, Patna,
Bihar, vide his order dated 14.01.1988 with the stipulation that his
service could be terminated without assigning any reason or show cause. In
the year 2000, the High Court of Patna considered the issue of backdoor
appointments made in the police department in another case which led to a
direction by the Department of Home (Police), Government of Bihar dated
04.09.2000 to the Police Headquarter, Bihar to review irregular
appointments and to remove such appointees from service.

4. Accordingly, a show cause notice dated 10.09.2003 was issued to the
respondent-writ petitioner asking him why his appointment should not be
cancelled and since no valid reason was shown in his reply, order dated
26.09.2003 was passed terminating the services of the respondent.=

Therefore, it is a settled legal proposition that no person can be
appointed even on a temporary or ad hoc basis without inviting applications
from all eligible candidates. If any appointment is made by merely inviting
names from the employment exchange or putting a note on the notice board
etc. that will not meet the requirement of Articles 14 and 16 of the
Constitution. Such a course violates the mandates of Articles 14 and 16 of
the Constitution of India as it deprives the candidates who are eligible
for the post, from being considered. A person employed in violation of
these provisions is not entitled to any relief including salary. For a
valid and legal appointment mandatory compliance with the said
constitutional requirement is to be fulfilled. The equality clause
enshrined in Article 16 requires that every such appointment be made by an
open advertisement as to enable all eligible persons to compete on merit.”

Accordingly, it has to be held that in the absence of any
advertisement or selection process, the appointment of the respondent is
not protected and could be validly terminated. Learned single Judge was
justified in dismissing the writ petition while the Division Bench erred in
interfering with the same.

17. Accordingly, we allow this appeal, set aside the order dated
05.01.2012 passed by the Division Bench of the High Court in L.P.A. No. 945
of 2010 and restore the order dated 09.04.2010 passed by the learned
single Judge of the High Court in C.W.J.C. No.204 of 2004.

2014 Aug. Part – http://judis.nic.in/supremecourt/filename=41813

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO._7392___2014
(Arising out of SLP (C) No.28971 of 2013)

State of Bihar and Ors. ... Appellant (s)

Versus

Chandreshwar Pathak ... Respondent (s)

J U D G M E N T

Adarsh Kumar Goel, J.

1. Leave granted.

2. This appeal has been preferred by the State of Bihar against the
order dated 05.01.2012 of the Division Bench of the High Court of
Judicature at Patna in L.P.A. No.945 of 2010, which has the effect of
quashing the order dated 26.09.2003 passed by the of Criminal Investigation
Department, Patna, Bihar, terminating the services of the respondent
herein.

3. The respondent was temporarily appointed to the post of constable by
the Inspector General of Police, Criminal Investigation Department, Patna,
Bihar, vide his order dated 14.01.1988 with the stipulation that his
service could be terminated without assigning any reason or show cause. In
the year 2000, the High Court of Patna considered the issue of backdoor
appointments made in the police department in another case which led to a
direction by the Department of Home (Police), Government of Bihar dated
04.09.2000 to the Police Headquarter, Bihar to review irregular
appointments and to remove such appointees from service.

4. Accordingly, a show cause notice dated 10.09.2003 was issued to the
respondent-writ petitioner asking him why his appointment should not be
cancelled and since no valid reason was shown in his reply, order dated
26.09.2003 was passed terminating the services of the respondent.

5. Challenging the above order, the respondent herein preferred a writ
petition before the High Court of Patna which was heard by a learned single
Judge. By order dated 09.04.2010, the learned single Judge dismissed the
writ petition with the following observations:

“This Court is not satisfied that the petitioner has made out a case for
interference with the order of termination from what appears to be an
illegal appointment based on the spoils systems.

Apart from the illegal entry into services, the alleged regularisation is
of no avail to him as it is apparently a single case considered without
others to dole out an individual benefit.

The submission that he had served for 16 long years and, therefore, his
case should be considered sympathetically does not appeal to this Court.

The petitioner must perish by the same sword by which he came.

Reliance of the petitioner on an order of this Court in C.W.J.C. No.
5279/04 interfering with a similar order of termination on the ground that
it had been passed after 15 years is best answered by the judgment of the
Supreme Court in (2005) 4 SSC 209 (Bind Kumar Gupta vs. Ram Ashray Mahato &
Ors.) where the Supreme Court declined to interfere with an order of
termination passed after 15 years of service, in case of an illegal
appointment.”

However, on appeal, the Division Bench allowed the writ petition following
an earlier order dated 18.05.2005 in another case, i.e., C.W.J.C. No. 5279
of 2004 filed by one of the similarly placed employee.

6. We have heard Mr. Gopal Singh, learned counsel for the State of Bihar
and Mr. Manoj R. Sinha, learned counsel for the respondent.

7. Learned counsel for the appellant submitted that the Division Bench
erroneously followed the judgment in C.W.J.C. No. 5279 of 2004 which was
distinguishable as therein no show cause notice was issued while in the
present case, a show cause notice was duly issued to the respondent.
Referring to the order of appointment, it was submitted that the present
was a case of backdoor appointment without any advertisement or selection
process. It was also pointed out that another Division Bench of the same
High Court in Hemkant Jha etc. etc. vs. The State of Bihar & Ors. (L.P.A.
No. 625 of 2003 etc.etc. decided on 18.7.2007) dealt with a group of
identical matters, on remand by this Court, and upheld termination of
services of police constables appointed without any selection. Therein, it
was observed:

“6. On going through the impugned judgments, the relevant facts and the
judgment in the case of Sudhir Kumar, it is found that on facts, there is
no meaningful and serious challenge to the relevant facts that concerned
employees in these matters have been appointed on the post of Constable
without any advertisement and without following procedure of appointment.
No general or order or regulation of the State Government is available to
support the contention that appointment of the appellants is akin to
compassionate appointment for which the State Government has taken a policy
decision and prescribed rules. In facts, there is no controversy or issue
in these matters because on admitted facts it is clear that the appointment
of the appellants on the post of Constable were made through a backdoor
method in complete disregard of procedure for appointment laid down in
relevant rules in the Police Manual and in violation of constitutional
mandate of equality in public employment. The State has rightly relied
upon various judgments including that of a Constitution Bench of the Apex
Court in the case of Secretary, State of Karnataka vs. Uma Devi (3),
reported in (2006) 4 SCC 1, to submit that such appointments do not confer
any right on the appointees and in such cases of appointments made without
following due process as per mandate of the Constitution or the relevant
rules for appointment, the Court cannot direct for grant of benefits like
absorption, regularisation or re-engagement. Those principles, though
considered in that case in the context of absorption, regularization, will
apply with equal force where such illegal appointment has been terminated
and the Court is called upon to consider such order and the connected issue
of ordering for reinstatement, i.e., for continuation of such illegal
appointments. That Constitution Bench judgment has emphasized the relevant
aspects in paragraphs 33 and 39 and in paragraph 54 it has been clarified
that those decisions which run counter to the principles settled in that
decision, or in which directions run counter to that decision, will stand
denuded of their status as precedents. The same principle of law flows
from a Division Bench judgment of this Court in the case of Amrendra Singh
vs. State of Bihar, 1999 (3) PLJR 984.

7. Having found that the appellants employees concerned are backdoor
appointees as held by the learned Judges in the impugned orders and they
have no right to their posts, we are now required to consider the
submissions advanced on behalf of the appellants that the impugned orders
should be set aside because the termination orders were issued by the
various Superintendent of Police not of their own free will but rather
under the directions of the higher authorities including the State
Government and that principles of natural justice were not within relation
to some of the petitioners/appellants.

8. The submissions noticed above must be decided in the background of
facts of each case. In the present case, the facts noticed in brief
disclose that large scale backdoor appointments were detected to have been
made during the tenure of a particular Director General of Police. An
enquiry was held and thereafter as a result of such enquiry directions were
issued by the higher authorities to the Superintendents of Police, the
competent authority to make appointments to the post of Constable, to issue
show cause notices wherever such backdoor appointments were detected and to
take action for their termination. The issue is whether the State
Government and the successor-Director General of Police could have held
such enquiry and issued such directions or not. In order to ensure rule of
law and obedience to constitutional mandate governing public employment,
the State and its officials must be held duty bound to take such steps and
there is no legal infirmity in such action.”

8. It has been pointed out that S.L.P.(c) Nos. 1237-1240 of 2008
etc.etc. and S.L.P.(c) Nos. 3334-3337 of 2008 filed against the above
judgment were dismissed by this Court on 04.02.2008 and 04.04.2008
respectively and on that basis S.L.P.(c) No. 21543 of 2008 was also
dismissed by this Court on 04.09.2013 in a connected matter.

9. Learned counsel for the respondent supported the impugned order and
submitted that having regard to the fact that the respondent had already
served for 15 years, termination of his services was not called for.

10. The only question for consideration is whether the appointment of the
respondent made without any advertisement or selection process can be
considered to be a valid appointment to a public post protected under
Articles 14 or 311 of the Constitution of India?

11. On due consideration, we are of the view that the impugned judgment
cannot be sustained for the reasons that follow.

12. The order of appointment, in the present case, is as follows:

“In the light of the order passed by the Inspector General of Police,
Criminal Investigation Department, Bihar, Patna, vide his Letter No. 6/86
F3 Sh. Chandeshwar Pathak, s/o Sh. Devnarayam Pathak of Village Haraji,
P.O. Haraji, PS- Dimbara, District- Chhapra was appointed as Constable
temporarily from 14.01.1988 afternoon on the condition that his previous
character found satisfactory and as and when necessary, his service shall
be terminated without assigning any reason or show cause. His pay scale
shall be Rs.425-10565 EB-10-605 with the basic pay of Rs.425/-. He has
been allotted the CT No. 390.”

13. It is clear from the above order that the appointment has been given
only on the asking of the Inspector General of Police. There is nothing to
show that any advertisement was issued giving opportunity to all eligible
candidates to compete or any selection process was undertaken before
appointment of the respondent.

14. In State of Orissa & Anr. vs. Mamata Mohanty (2011) 3 SCC 436, it
was observed as under:

“APPOINTMENT / EMPLOYMENT WITHOUT ADVERTISEMENT:

35. At one time this Court had been of the view that calling the names
from employment exchange would curb to certain extent the menace of
nepotism and corruption in public employment. But, later on, came to the
conclusion that some appropriate method consistent with the requirements of
Article 16 should be followed. In other words there must be a notice
published in the appropriate manner calling for applications and all those
who apply in response thereto should be considered fairly. Even if the
names of candidates are requisitioned from employment exchange, in addition
thereto it is mandatory on the part of the employer to invite applications
from all eligible candidates from the open market by advertising the
vacancies in newspapers having wide circulation or by announcement in radio
and television as merely calling the names from the employment exchange
does not meet the requirement of the said article of the Constitution.
(Vide: Delhi Development Horticulture Employees' Union v. Delhi Admn.,
State of Haryana v. Piara Singh, Excise Supdt. v. K.B.N. Visweshwara
Rao, Arun Tewari. v. Zila Mansavi Shikshak Sangh, Binod Kumar Gupta v. Ram
Ashray Mahoto, National Fertilizers Ltd. v. Somvir Singh, Telecom District
Manager v. Keshab Deb, State of Bihar v. Upendra Narayan Singh and State
of M.P. v. Mohd. Ibrahim).

36. Therefore, it is a settled legal proposition that no person can be
appointed even on a temporary or ad hoc basis without inviting applications
from all eligible candidates. If any appointment is made by merely inviting
names from the employment exchange or putting a note on the notice board
etc. that will not meet the requirement of Articles 14 and 16 of the
Constitution. Such a course violates the mandates of Articles 14 and 16 of
the Constitution of India as it deprives the candidates who are eligible
for the post, from being considered. A person employed in violation of
these provisions is not entitled to any relief including salary. For a
valid and legal appointment mandatory compliance with the said
constitutional requirement is to be fulfilled. The equality clause
enshrined in Article 16 requires that every such appointment be made by an
open advertisement as to enable all eligible persons to compete on merit.”

15. No contrary view of this Court has been cited on behalf of the
respondent. Moreover, another Division Bench of the same High Court has
upheld termination in similar matter as noted earlier against which S.L.P.
has been dismissed by this Court as mentioned earlier.

16. Accordingly, it has to be held that in the absence of any
advertisement or selection process, the appointment of the respondent is
not protected and could be validly terminated. Learned single Judge was
justified in dismissing the writ petition while the Division Bench erred in
interfering with the same.

17. Accordingly, we allow this appeal, set aside the order dated
05.01.2012 passed by the Division Bench of the High Court in L.P.A. No. 945
of 2010 and restore the order dated 09.04.2010 passed by the learned
single Judge of the High Court in C.W.J.C. No.204 of 2004.

18. There shall be no order as to costs.

.............................................J.
[ T.S. THAKUR ]

.............................................J.
[ ADARSH KUMAR GOEL ]
New Delhi
August 07, 2014