' PUBLISHED IN http://courtnic.nic.in/supremecourt/qrydisp.asp
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. 4802-4803 OF 2013
ARISING OUT OF
SPECIAL LEAVE PETITION (C) Nos. 14922-14923 OF 2009
SANCHARI DEVI & ORS Appellant(s)
VERSUS
ARA MUNICIPAL CORPORATION & ORS Respondent(s)
JUDGMENT
Leave granted.
2. These appeals are against the judgment dated 4th March, 2009 of
the Division Bench of the Patna High Court in L.P.A. Nos. 863 and 914
of 2007.
3. The facts very briefly are that Ramashish Prasad and Vishwanath
Ram were working with the Ara Municipal Corporation. Ramashish Prasad
superannuated on 31st August, 1996 and Vishwanath Ram superannuated on
31st March, 1999.
While they were working in the Ara Municipal
Corporation, the Bihar Municipal Officers and Servants Pension Rules,1987 (for short 'the Rules') came into effect.
The Rules were to apply
to all permanent employees of the Municipalities and Notified Area
Committees in the State of Bihar.
The Ara Municipal Corporation,
however, did not give effect to the Rules until 19th June, 2004 on
which date it adopted resolution to give pensionary benefits to its
employees who had retired from service from the year 2000 onwards in
accordance with the Rules.
4. Aggrieved, Ramashish Prasad and Vishwanath Ram filed Writ
Petitions CWJC Nos. 3267 and 3441 of 2005 before the Patna High Court
claiming appropriate reliefs.
The learned Single Judge of the High
Court who heard the writ petitions held in his judgment dated 25th
May, 2007 that the Rules were applicable with effect from 13-11-1987
when the Rules were notified in the Gazette and since both the writ
petitioners had superannuated after 13-11-1987 they were entitled tothe benefit of pension under the Rules.
The judgment dated 25th May,
2007 of the learned Single Judge was challenged by the Ara Municipal
Corporation in L.P.A. Nos. 863 and 914 of 2007 and by the impugned
judgment, the Division Bench of the High Court upheld the finding of the learned Single Judge that the Rules came into effect on 13-11-1987 but held that as the two writ petitioners had not exercised their option for the pension as required by Rule 4 of the Rules and as their right to pension under the Rules was dependent upon the exercise of their option for pension, they were not entitled for the pension under the Rules.
Aggrieved, Ramashish Prasad and the legal heirs of
Vishwanath Ram have filed these appeals before this Court.
5. We have heard learned counsel for the parties and we find that
the only point that we have to decide in these appeals is whether
Ramashish Prasad and Vishwanath Ram were entitled to the benefit of
the Rules even though they had not exercised their option for pension
as required by Rule 4 of the Rules. For deciding this point, we have
to look at the Rules 1 and 4 of the Rules which are quoted here-in-
below:
1. These rules may be called the Bihar Municipal Officers and
Servants Pension Rules, 1987 and shall apply to all permanent
employees of the Municipalities and Notified Area Committees.
4. (i) Municipal employee on roll on the date of confirmation
of this rule and who had subscribed to the contributory
provident fund under provident fund rules and want to be
governed by these rules shall have the option to do so and such
option shall be exercised in writing in the prescribed form
(Annexure 1) and submitted to their head of office within 90
days from the date of framing of this rule by the State
Government. If such option in writing in prescribed form is not
received within the period so fixed, it will be deemed that they
would retain the existing contributory provident fund.
(ii) Municipal employees who retired before the date of
effect of this rule and have received the part or whole amount
of provident fund contribution will not be eligible for the
pension.
6. A bare reading of the Rules 1 and 4(i) of the Rules makes it
clear that the Rules apply to permanent employees of the
Municipalities and Notified Area Committees in the State of Bihar.
Thus, all permanent employees of Municipalities and Notified Area
Committees including the Ara Municipal Corporation were statutorily
entitled to the pension under the Rules. Rule 4(ii) of the Rules
provided further that municipal employees who retired before the date
of effect of the Rules and received part or whole amount of provident
fund contribution will not be eligible for pension. Hence, Municipal
employees who had retired before the date of effect of the Rules and
had received part or whole of provident fund contribution were not
entitled for the pension under the Rules. In other words, all
permanent employees of Municipalities and Notified Area Committees
including the Ara Municipal Corporation had a statutory right to get
pension if they had not retired before the date of effect of the Rules
and had not received part or whole of provident fund contribution.
7. Rule 4(i) of the Rules, quoted above shows that municipal
employees on the rolls on the date of confirmation of the Rules and
who had subscribed to the provident fund and wanted to be governed by
the provident fund rules shall have the option to do so and such
option was to be exercised in writing in the prescribed form in
Annexure 1 and submitted the option within 90 days from the date of
framing of the Rules by the State Government and if such option in
writing in prescribed form is not received within the time so fixed,
it will be deemed that they would retain the existing contributory
provident fund. The language of the last limb of Rule 4(i) provides
that in case the option is not exercised by a municipal employee who
is entitled for pension under the Rules, it will be deemed as if he
has exercised his option to retain the existing contributory provident
fund. The option was, therefore, a right of the employee either to
continue with the contributory provident fund or to switchover to
pension under the Rules and the statutory right of the municipal
employee to receive pension was not dependent upon the exercise of
option as held by the High Court in the impugned order. As we have
already indicated, by virtue of what is provided in Rule 1 of the
Rules, every permanent employee of a Municipality or Notified Area
Committee, if he had not retired before the date of effect of the
Rules and had not received part or whole of provident fund
contribution was statutorily entitled to the pension.
8. In the facts of the present case, the Ara Municipal Corporation
itself had taken a view that the Rules were not applicable until a
resolution is adopted by the Corporation and adopted the resolution
only on 19th June, 2004 saying that the pensionary benefits of the
Rules will be given to those employees who had retired from service
from the year 2000 onwards. The resolution was clearly in
contravention of the Rule 1 as well as Rule 4(ii) of the Rules. If
the Corporation had taken the correct view that the rules would be
effective from 13th November, 1987, the two employees Ramashish Prasad
and Vishwanath Ram who were employees of the Ara Municipal Corporation
on that date, could have exercised their respective options to
switchover to pension scheme under the Rules. This is a case where the
Ara Municipal Corporation by taking the view that the Rules were not
applicable until adopted by the Corporation had disabled the aforesaid
two employees from exercising their option and cannot take advantage
of such a disability caused by the Municipal Corporation itself and
deny their statutory right to pension under the Rules. Moreover, the
two employees have also not received part or whole of provident fund
contribution although they have retired in 1996 and 1997 and hence
they could not have been deemed to have exercised their option to
retain existing provident fund.
9. For the aforesaid reasons, we set aside the impugned judgment of
the Division Bench and direct that the appellants will be given the
pensionary benefits including pension and family pension, as the case
may be, in accordance with the Rules within three months from today.
10. We make it clear that this judgment has been delivered in the
facts of the present case and will not be treated as a precedent
applicable to all other cases the facts of which are not before this
Court.
11. The appeals stand allowed accordingly with no order as to costs.
............................J.
(A.K. PATNAIK)
............................J.
(RANJAN GOGOI)
NEW DELHI,
JUNE 25, 2013
ITEM NO.13 COURT NO.3 SECTION XVI
PART-HEARD
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil) No(s).14922-14923/2009
(From the judgement and order dated 04/03/2009 in LPA No.863/2007,
LPA No.914/2007 of The HIGH COURT OF PATNA)
SANCHARI DEVI & ORS Petitioner(s)
VERSUS
ARA MUNICIPAL CORPORATION & ORS Respondent(s)
(With prayer for interim relief and office report)
(FOR FINAL DISPOSAL)
Date: 25/06/2013 These Petitions were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE A.K. PATNAIK
HON'BLE MR. JUSTICE RANJAN GOGOI
(VACATION BENCH)
For Petitioner(s) Mr. Gaurav Agrawal, Adv.
Mr. Shankar Narayanan, Adv.
For Respondent(s) Mr. Sishir Pinki, Adv.
Mr. Samir Ali Khan, Adv.
UPON hearing counsel the Court made the following
O R D E R
Leave granted.
The appeals stand allowed in terms of the signed reportable
judgment.
| (G. SUDHAKARA RAO) | | (SHARDA KAPOOR) |
|COURT MASTER | |COURT MASTER |
| | | |
(SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE)
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. 4802-4803 OF 2013
ARISING OUT OF
SPECIAL LEAVE PETITION (C) Nos. 14922-14923 OF 2009
SANCHARI DEVI & ORS Appellant(s)
VERSUS
ARA MUNICIPAL CORPORATION & ORS Respondent(s)
JUDGMENT
Leave granted.
2. These appeals are against the judgment dated 4th March, 2009 of
the Division Bench of the Patna High Court in L.P.A. Nos. 863 and 914
of 2007.
3. The facts very briefly are that Ramashish Prasad and Vishwanath
Ram were working with the Ara Municipal Corporation. Ramashish Prasad
superannuated on 31st August, 1996 and Vishwanath Ram superannuated on
31st March, 1999.
While they were working in the Ara Municipal
Corporation, the Bihar Municipal Officers and Servants Pension Rules,1987 (for short 'the Rules') came into effect.
The Rules were to apply
to all permanent employees of the Municipalities and Notified Area
Committees in the State of Bihar.
The Ara Municipal Corporation,
however, did not give effect to the Rules until 19th June, 2004 on
which date it adopted resolution to give pensionary benefits to its
employees who had retired from service from the year 2000 onwards in
accordance with the Rules.
4. Aggrieved, Ramashish Prasad and Vishwanath Ram filed Writ
Petitions CWJC Nos. 3267 and 3441 of 2005 before the Patna High Court
claiming appropriate reliefs.
The learned Single Judge of the High
Court who heard the writ petitions held in his judgment dated 25th
May, 2007 that the Rules were applicable with effect from 13-11-1987
when the Rules were notified in the Gazette and since both the writ
petitioners had superannuated after 13-11-1987 they were entitled tothe benefit of pension under the Rules.
The judgment dated 25th May,
2007 of the learned Single Judge was challenged by the Ara Municipal
Corporation in L.P.A. Nos. 863 and 914 of 2007 and by the impugned
judgment, the Division Bench of the High Court upheld the finding of the learned Single Judge that the Rules came into effect on 13-11-1987 but held that as the two writ petitioners had not exercised their option for the pension as required by Rule 4 of the Rules and as their right to pension under the Rules was dependent upon the exercise of their option for pension, they were not entitled for the pension under the Rules.
Aggrieved, Ramashish Prasad and the legal heirs of
Vishwanath Ram have filed these appeals before this Court.
5. We have heard learned counsel for the parties and we find that
the only point that we have to decide in these appeals is whether
Ramashish Prasad and Vishwanath Ram were entitled to the benefit of
the Rules even though they had not exercised their option for pension
as required by Rule 4 of the Rules. For deciding this point, we have
to look at the Rules 1 and 4 of the Rules which are quoted here-in-
below:
1. These rules may be called the Bihar Municipal Officers and
Servants Pension Rules, 1987 and shall apply to all permanent
employees of the Municipalities and Notified Area Committees.
4. (i) Municipal employee on roll on the date of confirmation
of this rule and who had subscribed to the contributory
provident fund under provident fund rules and want to be
governed by these rules shall have the option to do so and such
option shall be exercised in writing in the prescribed form
(Annexure 1) and submitted to their head of office within 90
days from the date of framing of this rule by the State
Government. If such option in writing in prescribed form is not
received within the period so fixed, it will be deemed that they
would retain the existing contributory provident fund.
(ii) Municipal employees who retired before the date of
effect of this rule and have received the part or whole amount
of provident fund contribution will not be eligible for the
pension.
6. A bare reading of the Rules 1 and 4(i) of the Rules makes it
clear that the Rules apply to permanent employees of the
Municipalities and Notified Area Committees in the State of Bihar.
Thus, all permanent employees of Municipalities and Notified Area
Committees including the Ara Municipal Corporation were statutorily
entitled to the pension under the Rules. Rule 4(ii) of the Rules
provided further that municipal employees who retired before the date
of effect of the Rules and received part or whole amount of provident
fund contribution will not be eligible for pension. Hence, Municipal
employees who had retired before the date of effect of the Rules and
had received part or whole of provident fund contribution were not
entitled for the pension under the Rules. In other words, all
permanent employees of Municipalities and Notified Area Committees
including the Ara Municipal Corporation had a statutory right to get
pension if they had not retired before the date of effect of the Rules
and had not received part or whole of provident fund contribution.
7. Rule 4(i) of the Rules, quoted above shows that municipal
employees on the rolls on the date of confirmation of the Rules and
who had subscribed to the provident fund and wanted to be governed by
the provident fund rules shall have the option to do so and such
option was to be exercised in writing in the prescribed form in
Annexure 1 and submitted the option within 90 days from the date of
framing of the Rules by the State Government and if such option in
writing in prescribed form is not received within the time so fixed,
it will be deemed that they would retain the existing contributory
provident fund. The language of the last limb of Rule 4(i) provides
that in case the option is not exercised by a municipal employee who
is entitled for pension under the Rules, it will be deemed as if he
has exercised his option to retain the existing contributory provident
fund. The option was, therefore, a right of the employee either to
continue with the contributory provident fund or to switchover to
pension under the Rules and the statutory right of the municipal
employee to receive pension was not dependent upon the exercise of
option as held by the High Court in the impugned order. As we have
already indicated, by virtue of what is provided in Rule 1 of the
Rules, every permanent employee of a Municipality or Notified Area
Committee, if he had not retired before the date of effect of the
Rules and had not received part or whole of provident fund
contribution was statutorily entitled to the pension.
8. In the facts of the present case, the Ara Municipal Corporation
itself had taken a view that the Rules were not applicable until a
resolution is adopted by the Corporation and adopted the resolution
only on 19th June, 2004 saying that the pensionary benefits of the
Rules will be given to those employees who had retired from service
from the year 2000 onwards. The resolution was clearly in
contravention of the Rule 1 as well as Rule 4(ii) of the Rules. If
the Corporation had taken the correct view that the rules would be
effective from 13th November, 1987, the two employees Ramashish Prasad
and Vishwanath Ram who were employees of the Ara Municipal Corporation
on that date, could have exercised their respective options to
switchover to pension scheme under the Rules. This is a case where the
Ara Municipal Corporation by taking the view that the Rules were not
applicable until adopted by the Corporation had disabled the aforesaid
two employees from exercising their option and cannot take advantage
of such a disability caused by the Municipal Corporation itself and
deny their statutory right to pension under the Rules. Moreover, the
two employees have also not received part or whole of provident fund
contribution although they have retired in 1996 and 1997 and hence
they could not have been deemed to have exercised their option to
retain existing provident fund.
9. For the aforesaid reasons, we set aside the impugned judgment of
the Division Bench and direct that the appellants will be given the
pensionary benefits including pension and family pension, as the case
may be, in accordance with the Rules within three months from today.
10. We make it clear that this judgment has been delivered in the
facts of the present case and will not be treated as a precedent
applicable to all other cases the facts of which are not before this
Court.
11. The appeals stand allowed accordingly with no order as to costs.
............................J.
(A.K. PATNAIK)
............................J.
(RANJAN GOGOI)
NEW DELHI,
JUNE 25, 2013
ITEM NO.13 COURT NO.3 SECTION XVI
PART-HEARD
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil) No(s).14922-14923/2009
(From the judgement and order dated 04/03/2009 in LPA No.863/2007,
LPA No.914/2007 of The HIGH COURT OF PATNA)
SANCHARI DEVI & ORS Petitioner(s)
VERSUS
ARA MUNICIPAL CORPORATION & ORS Respondent(s)
(With prayer for interim relief and office report)
(FOR FINAL DISPOSAL)
Date: 25/06/2013 These Petitions were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE A.K. PATNAIK
HON'BLE MR. JUSTICE RANJAN GOGOI
(VACATION BENCH)
For Petitioner(s) Mr. Gaurav Agrawal, Adv.
Mr. Shankar Narayanan, Adv.
For Respondent(s) Mr. Sishir Pinki, Adv.
Mr. Samir Ali Khan, Adv.
UPON hearing counsel the Court made the following
O R D E R
Leave granted.
The appeals stand allowed in terms of the signed reportable
judgment.
| (G. SUDHAKARA RAO) | | (SHARDA KAPOOR) |
|COURT MASTER | |COURT MASTER |
| | | |
(SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE)
