Full Judgment Text
$~13 & 14.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION(CIVIL) No. 8173/2016
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Date of decision: 21 March, 2017
DELHI TRANSPORT CORPORATION ..... Petitioner
Through: Ms. Avnish Ahlawat with Ms.
Latika Chaudhary, Advocates.
versus
SHRI JAGDISH CHANDRA AND ORS. ..... Respondents
Through: Ms.Asha Jain Madan, Advocate.
Mr.Keshav Mohan & Mr.Deepak
Pathak, Adv. for R-3
WRIT PETITION (CIVIL) No. 9949/2016
JAGDISH CHANDRA ..... Petitioner
Through: Ms. Avnish Ahlawat with Ms. Asha
Jain Madan, Advocates.
versus
DELHI TRANSPORT CORPORATION AND ORS..... Respondents
Through: Ms.Latika Chaudhary, Advocate.
Mr. Anupam Srivastava ASC for
GNCTD & Ms. Sharmistha Ghosh,
Advocate for respondent No. 2.
Mr. Keshav Mohan & Mr.Deepak
Pathak, Advocates for respondent
No. 3.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
SANJIV KHANNA, J. (ORAL):
W.P. (C) Nos. 8173/2016 & 9949/2016 Page 1 of 19
This common order would dispose of the afore-stated cross writ
petitions, filed by Jagdish Chandra and others; and the Delhi Transport
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Corporation (DTC, for short) impugning the order dated 1 April, 2015
passed by the Principal Bench of the Central Administrative Tribunal
(hereinafter referred to as the Tribunal) partly allowing OA No. 3423/2010.
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2. DTC has also challenged the order dated 11 January, 2016 whereby
the review application filed by the said Corporation has been dismissed.
3. Jagdish Chandra and others are retired employees of the DTC.
4. The DTC was established in 1978 under the Delhi Road Transport
Act. 1950 read with the Delhi Municipal Corporation Act, 1957 and the
Delhi Road Transport (Amendment) Act, 1957, which are Central
legislations.
5. All employees of the DTC were covered and governed by the
Contributory Provident Fund Scheme (CPF Scheme, for short), under the
Employees‟ Provident Fund and Miscellaneous Provisions Act, 1952 (EPF
Act, for short). In 1971 the Employees‟ Family Pension Scheme was
introduced to provide for Family Pension in case of death.
6. Subsequently, the Delhi Transport Corporation (Employees‟
Provident Fund Trust) Regulations, 1978 were enacted with the approval of
W.P. (C) Nos. 8173/2016 & 9949/2016 Page 2 of 19
the Regional Provident Fund Commissioner (RPFC). The Trust operates
and disperses the CPF and Family Pension.
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7. By Office Order dated 27 November, 1992, DTC introduced a
Pension Scheme („Pension Scheme of 1992‟) which was applicable to
existing/in-service employees by default. Existing employees had the
option to remain covered under the CPF Scheme, in which case the
Pension Scheme was not applicable. This Pension Scheme could only be
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implemented with effect from 31 October, 1995 as the Life Insurance
Corporation of India (LIC, for short) who were to implement the Pension
Scheme had expressed reservations. The matter was taken up with the
Central Government which thereupon had sanctioned the said Scheme.
Thereafter, the DTC Pension Trust started dispersing pension to those
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covered by the Pension Scheme dated 27 November, 1992.
8. With effect from November, 1995 employees covered under the CPF
Scheme also became entitled to the Employees‟ Pension Scheme. This
Pension Scheme was different and distinct from the Pension Scheme
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introduced vide Office Order dated 27 November, 1992.
9. Two-thirds of the employees, by default or otherwise, are covered
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under the Pension Scheme dated 27 November, 1992.
W.P. (C) Nos. 8173/2016 & 9949/2016 Page 3 of 19
10. Jagdish Chand and others, who were existing employees when the
Pension Scheme of 1992 was introduced and then operationalised, it is an
accepted and admitted case, had opted to remain out of the Pension
Scheme of 1992 for they wanted to remain covered and be governed by the
CPF Scheme. This option to remain covered under the CPF Scheme was
exercised in writing.
11. Nearly 6 years after the Pension Scheme of 1992 was
operationalised, W.P.(C) No. 48/2001 was filed by the Workers‟ Union and
Others to allow employees not covered by the Pension Scheme of 1992 to
opt for the same. Under pressure from the Unions, etc. the matter was also
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taken up on the Administrative side. Office Order dated 28 October, 2002
which read as under, was issued:-
“i) All the existing employees who are not covered
under the existing DTC Pension Scheme may exercise their
option in writing in case desire to opt DTC Pension Scheme.
ii) The employees who have drawn the employer‟s
share, under the EPF Act, partly or wholly shall have to
refund the same with interest in the event of their opting for
the DTC Pension Scheme. The total amount to be refunded
by the employees would be the amount that would have
accrued, had they not withdrawn the employer‟s share.
iii) Inviting/exercising option shall be provisional and
subject to exemption from the RPFC and refund of the
amount held with them. In case, no exemption is received
from RPFC, this option shall become redundant, and the
status of an employee shall be the same as is before the
issue of these orders.
W.P. (C) Nos. 8173/2016 & 9949/2016 Page 4 of 19
iv) The Unit Officers/Depot Manager, after receiving, the
options, shall send the list of existing employees who
exercised their option in favour of DTC Pension Scheme to
the Pension Cell within a week of closing the date of option.
v) All employees who are on the rolls of this Corporation
on the date of issue of this office order shall be eligible to
opt DTC Pension Scheme and to exercise their option
within 30 days from the date of issue of this Circular.”
12. Jagdish Chandra and others now exercised their option to be covered
by the Pension Scheme of 1992. Later on, the DTC after examination,
decided not to extend and cover the CPF optees, under the Pension Scheme
of 1992. This was for several reasons, the primary being that the DTC
lacked resources and funds to implement the Pension Scheme of 1992, in
view of the number of applications.
13. Jagdish Chandra and others had challenged this decision of the DTC
in OA No. 3423/2010, which has been disposed of by the impugned order
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dated 1 April, 2015. The impugned order records the prior history and
refers to Section 17(1C) of the EPF Act and has thereafter held as under:-
“11. Section 17(1C) of the Act of 1952 stipulates that the
appropriate Government may, by notification in the Official
Gazette, and subject to the condition on the pattern of
investment of pension fund and such other conditions as
may be specified therein, exempt any establishment or class
of establishments from the operation of the Pension
Scheme, if the employees of such establishment or class of
establishments are either members of any other pension
scheme or propose to be members of such pension scheme,
where the pensionary benefits are at par or more favourable
than the Pension Scheme under the Act of 1952. Thus, it is
clear that the appropriate Government has only been
W.P. (C) Nos. 8173/2016 & 9949/2016 Page 5 of 19
invested with the power to exempt any establishment from
the operation of the Pension Scheme framed under the Act
of 1952 if the employees of such establishments propose to
be members of any other pension scheme where the
pensionary benefits are at par or more favourable than the
Pension Scheme framed under the Act of 1952. It is also
clear that the Central Provident Fund Commissioner, or for
that matter, the Regional Provident Fund Commissioner, has
no role to play in the matter of exemption in question.
12. In the instant case, the respondent-DTC, vide office
order dated 28.10.2002 (Annexure A/6), invited option from
the existing employees, including those covered under the
EPS 1995, who were not already covered under the DTC
Pension Scheme, as to whether they desired to opt for DTC
Pension Scheme. One of the conditions stipulated in the said
office order dated 28.10.2002 was that inviting/exercising
option shall be provisional and subject to exemption from
the Regional Provident Fund Commissioner and refund of
the amount held with them, and that in case no exemption
was received from the Regional Provident Fund
Commissioner, their option shall become redundant and the
status of the employee shall be the same as was before the
issue of the said order. It transpires from the records that the
respondent-DTC had moved the Central Provident Fund
Commissioner for granting exemption. The Regional
Provident Fund Commissioner, Delhi (respondent no.3),
vide his letter dated 2.8.2007 (Annexure A/7), conveyed the
decision of the Central Provident Fund Commissioner
rejecting the request of the respondent-DTC for exemption
purportedly sought under Section 17(1C) of the Act of
1952.
13. In the above conspectus, the irresistible conclusion that
only could be drawn is that both the respondent-DTC and
the Central Provident Fund Commissioner/Regional
Provident Commissioner proceeded on a wrong assumption.
The respondent-DTC, by misconstruing or misinterpreting
the provisions of Section 17(1C) of the Act of 1952, not
only issued the office order dated 28.10.2002 subject to
exemption being granted by the Regional Provident Fund
Commissioner, but, at the same time, also moved the
Central Provident Fund Commissioner/Regional Provident
Fund Commissioner, for granting exemption under Section
W.P. (C) Nos. 8173/2016 & 9949/2016 Page 6 of 19
17(1C) of the Act of 1952. Conversely, the Central
Provident Commissioner, without appreciating the whole
point in issue and without examining the same in its proper
perspective, turned down the proposal of the respondent-
DTC, as if it were the appropriate Government, i.e., the
Central Government. Therefore, the action taken on this
score by the Central Provident Fund Commissioner or the
Regional Provident Fund Commissioner, as the case may
be, was far fetched. In the circumstances, we do observe that
in case exemption under Section 17(1C) of the Act of 1952
is granted by the appropriate Government, i.e., the Central
Government, then nothing would prevent the respondent-
DTC from considering the options exercised by the
applicants in order to switch over to the DTC Pension
Scheme and taking further consequential action in that
behalf.
14. It is pertinent to indicate herein that as the applicants
have not challenged the legality and validity of the office
order dated 28.10.2002, they are bound by the same,
subject, however, to exemption being granted by the Central
Government under Section 17(1C) of the Act of 1952. It is
made clear that if exemption under Section 17(1C) of the
Act of 1952 is not granted by the Central Government, the
applicants are not entitled for switching over to the DTC
Pension Scheme inasmuch as their entitlement to switch
over to DTC Pension Scheme solely depends on the
exemption being granted under Section 17(1C) of the Act of
1952. Having arrived at this conclusion, we do not feel it
necessary to consider the rest of the submissions made by
the learned counsel for the parties.
15. In the circumstances, the respondent-DTC is directed
to move the appropriate Government, i.e., Central
Government for according approval of exemption under
Section 17(1C) of the Act of 1952 and to decide the claim of
the applicants after the decision of the appropriate
Government is received by them. The respondent-DTC is
also directed to take appropriate steps for completing the
entire exercise, including decision on the applicants claim,
within a period of three months from today. As the Central
Government is not a party-respondent in the present O.A.,
we refrain ourselves from issuing any direction to the
Central Government. However, we would like to observe
W.P. (C) Nos. 8173/2016 & 9949/2016 Page 7 of 19
that the respondent-DTC is at liberty to bring this order to
the notice of the Central Government, while putting up the
proposal seeking exemption under Section 17(1C) of the
Act of 1952. Ordered accordingly.”
14. In our opinion, the matter is covered by the Division Bench decision
of this Court in Writ Petition (C) No. 7477/2011, Rati Bhan versus Delhi
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Transport Corporation , decided on 14 October, 2011. Referring to the
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notification dated 28 October, 2002 inviting options from employees who
had not earlier opted for Pension Scheme of 1992 to opt for the same, it
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was observed that the office order dated 28 October, 2002 had showed
only an intendment of the DTC. Use of the expression “provisional” was
highlighted, to indicate that receipt or exercise of option would not create a
vested right. Thereafter, on the basis of the number of applications
received, DTC did not find it feasible/possible to implement the Pension
Scheme of 1992 on account of financial implications and constraints. In
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other words, Office Order dated 28 October, 2002 had been issued to
examine and ascertain the financial implication and feasibility of extending
benefit of Pension Scheme of 1992 to non-optees. The Office Order dated
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28 October, 2002 and subsequent Press Note dated 23 September, 2003
did not give a crystallized right to the employees to claim pension under
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the Scheme dated 27 November, 1992. Refund of payments as per
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paragraph 2 of the Office Order dated 28 October, 2002 were not made or
received.
W.P. (C) Nos. 8173/2016 & 9949/2016 Page 8 of 19
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15. The Press Note dated 23 September, 2003 referred to above, it is
submitted by the counsel appearing for Jagdish Chandra and others, was
issued with the intendment to give option to the retired employees. This
would not be correct, for the option exercised was only provisional and no
binding rights were created. We are bound by the judgment of the Division
Bench in the case of Rati Bhan (supra).
16. The decision in Rati Bhan (supra) had interpreted clause (iii) of the
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Office Order dated 28 October, 2002 in two parts. First, exercise of
inviting options was provisional, i.e. subject to examination of feasibility
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of implementing the DTC Pension Scheme dated 27 November, 1992 to
those who had expressed their desire to be covered by the said Scheme.
Secondly, this was subject to exemption from the Regional Provident Fund
Commissioner and refund of the amount held with them. It was clarified
that if no exemption was received from the Regional Provident Fund
Commissioner, the option expressed shall become redundant. The 2
stipulations were independent of one another, as has been held and decided
in Rati Bhan’s case (supra).
17. The impugned order of the Tribunal quoted above refers to Section
17(1C) of the EPF Act and that the Regional Provident Fund
Commissioner had refused grant of exemption to the DTC from operation
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of the EPF Act vide letter dated 2 August, 2007. It is in this context that
W.P. (C) Nos. 8173/2016 & 9949/2016 Page 9 of 19
directions have been issued to the DTC to move the appropriate
Government for according approval for exemption. This, according to us,
is of no concern and not required for the DTC has decided not to
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implement the Pension Scheme dated 27 November, 1992 for non-optees.
18. Counsel for Jagdish Chandra and Others have drawn our attention to
Section 17(1C) which reads as under:-
“17.(1C) The appropriate Government may, by notification
in the Official Gazette, and subject to the condition on the
pattern of investment of pension fund and such other
conditions as may be specified therein, exempt any
establishment or class of establishments from the operation
of the Pension Scheme, if the employees of such
establishment or class of establishments are either members
of any other pension scheme or propose to be members of
such pension scheme, where the pensionary benefits are at
par or more favourable than the Pension Scheme under this
Act.”
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Reference was made to the letter dated 2 August, 2007 of the
Regional Provident Fund Commissioner declining to grant exemption
under Section 17 (1C) of the EPF Act, as exemption was not sought for the
establishment as a whole, i.e. all employees.
19. The contention raised by Jagdish Chandra and others has to be
rejected on account of contradiction. In OA No. 3423/2010 and W.P.(C)
No. 9949/2016, the clear and categorical stand is that the EPF Act is not
applicable to the DTC. Jagdish Chandra and others have pleaded and
submitted that Section 17(1C) empowers the appropriate State Government
W.P. (C) Nos. 8173/2016 & 9949/2016 Page 10 of 19
to grant exemption to any establishment or class of establishment from
operation of the Pension Scheme by issuance of notification in the Official
Gazette. Exemption under the said section is to be granted to an
establishment which is covered and is required to comply with the EPF
Act. As per Sub-section (3) to Section 1 of the EPF Act, this Act is not
applicable to establishments covered by Section 16. Sub-section 3 to
Section 1 reads as under:-
“ (3) Subject to the provisions contained in section 16, it
applies-
(a) to every establishment which is a factory engaged in any
industry specified in Schedule I and in which twenty or
more persons are employed.
(b) to any other establishment employing twenty or more
persons or class of such establishments which the Central
Government may, by notification in the Official Gazette,
specify in this behalf: ”
Section 16 reads as under:-
“ 16. Act not to apply to certain establishments - (1) This
Act shall not apply –
(a) to any establishment registered under the Co-operative
Societies Act, 1912 (2 of 1912), or under any other law for
the time being in force in any State relating to co-operative
societies employing less than fifty persons and working
without the aid of power; or
(b) to any other establishment belonging to or under the
control of the Central Government or a State Government
and whose employees are entitled to the benefit of
contributory provident fund or old age pension in
accordance with any Scheme or rule framed by the Central
Government or the State Government governing such
benefits; or
W.P. (C) Nos. 8173/2016 & 9949/2016 Page 11 of 19
(c) to any other establishment set up under any Central,
Provincial or State Act and whose employees are entitled to
the benefits of contributory provident fund or old age
pension in accordance with any scheme or rule framed
under that Act governing such benefits;
(2) If the Central Government is of opinion that having
regard to the financial position of any class of
establishments or other circumstances of the case, it is
necessary or expedient to do so, it may, by notification in
the Official Gazette, and subject to such conditions, as may
be specified in the notification, exempt whether
prospectively or retrospectively that class of establishments
from the operation of this Act for such period as may be
specified in the notification.”
DTC, it is accepted and admitted was/is a Corporation established by
Central enactment. It is undisputed that the employees of DTC are entitled
to benefit of the old age pension scheme or the CPF. In the aforesaid
situation, the stipulations of clause (c) in Section 16 (1) of the EPF Act
would be satisfied. The requirements of the said clause are; (i) that the
establishment should be established under the Central, Provincial or State
Act and (ii) employees of the said establishment are entitled to benefits of
CPF or old-age pension in accordance with a scheme or rule framed under
the Act governing the benefits. DTC as an establishment meets and
satisfies the said requirements and stipulations. They have the CPF scheme
and also old-age pension scheme governing such benefits. Once an
organization or establishment is excluded from the operation of the EPF
Act by virtue of clause (c) to Section 16 (1), then there is no need or
requirement to apply for and seek grant of exemption under Section
W.P. (C) Nos. 8173/2016 & 9949/2016 Page 12 of 19
17(1C). Section 17(1C) of EPF Act would apply only when an Act is
applicable to an establishment. Under Section 17 (1C), the Appropriate
Government can by notification in the Official Gazette, subject to
conditions on the pattern of investment and other conditions, exempt any
establishment or class of establishments.
20. Counsel appearing for Jagdish Chandra and others have submitted
that the CPF Scheme is under the EPF Act. This is incorrect. Initially, the
CPF Scheme was implemented and was being enforced as per EPF Act.
However, in 1979, exemption was granted under the EPF Act and the Trust
is thereafter operating and implementing the CPF Scheme.
21. Jagdish Chandra and others have retired and thereafter have been
paid their share as well as employees‟ share of the CPF. This is an
accepted position. DTC has also relied upon documents placed by them in
this regard.
22. Jagdish Chandra and others have submitted that the Pension Scheme
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circulated vide Office Order dated 27 November, 1992 was different and
less beneficial than the Pension Scheme actually sanctioned by the Central
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Government and implemented with effect from 1 November, 1995. We
would not accept the said contention as the difference between the two has
not been highlighted and shown. No doubt, earlier, the Pension Scheme
was to be operationalised and implemented by the LIC, but this would not
W.P. (C) Nos. 8173/2016 & 9949/2016 Page 13 of 19
make any difference or confer any right on Jagdish Chandra and others that
they must be offered and given an option to be covered under the Pension
Scheme of 1992. Employees covered under the Pension Scheme of 1992
and those covered under the EPF-cum-Pension Scheme form two different
classes. V. Kasturi v. Managing Director, State Bank of India, Bombay
and Another , (1998) 8 SCC 30 held:-
“ Category I
22. If the person retiring is eligible for pension at the
time of his retirement and if he survives till the time of
subsequent amendment of the relevant pension scheme, he
would become eligible to get enhanced pension or would
become eligible to get more pension as per the new formula
of computation of pension subsequently brought into force,
he would be entitled to get the benefit of the amended
pension provision from the date of such order as he would
be a member of the very same class of pensioners when the
additional benefit is being conferred on all of them. In such
a situation, the additional benefit available to the same class
of pensioners cannot be denied to him on the ground that he
had retired prior to the date on which the aforesaid
additional benefit was conferred on all the members of the
same class of pensioners who had survived by the time the
scheme granting additional benefit to these pensioners came
into force. The line of decisions tracing their roots to the
ratio of Nakara case [(1983) 1 SCC 305 : 1983 SCC (L&S)
145] would cover this category of cases.
Category II
23. However, if an employee at the time of his
retirement is not eligible for earning pension and stands
outside the class of pensioners, if subsequently by
amendment of the relevant pension rules any beneficial
umbrella of pension scheme is extended to cover a new
class of pensioners and when such a subsequent scheme
comes into force, the erstwhile non-pensioner might have
survived, then only if such extension of pension scheme to
W.P. (C) Nos. 8173/2016 & 9949/2016 Page 14 of 19
erstwhile non-pensioners is expressly made retrospective by
the authorities promulgating such scheme; the erstwhile
non-pensioner who has retired prior to the advent of such
extended pension scheme can claim benefit of such a new
extended pension scheme. If such new scheme is
prospective only, old retirees non-pensioners cannot get the
benefit of such a scheme even if they survive such new
scheme. They will remain outside its sweep. The decisions
of this Court covering such second category of cases
are: Commander, Head Quarter v. Capt. Biplabendra
Chanda [(1997) 1 SCC 208 : 1997 SCC (L&S) 444]
and Govt. of T.N. v. K. Jayaraman [(1997) 9 SCC 606 :
1997 SCC (L&S) 1208] and others to which we have made
a reference earlier. If the claimant for pension benefits
satisfactorily brings his case within the first category of
cases, he would be entitled to get the additional benefits of
pension computation even if he might have retired prior to
the enforcement of such additional beneficial provisions.
But if on the other hand, the case of a retired employee falls
in the second category, the fact that he retired prior to the
relevant date of the coming into operation of the new
scheme would disentitle him from getting such a new
benefit.”
23. In All India Reserve Bank Retired Officers’ Association and
Others v. Union of India and Another , 1992 Supp (1) SCC 664
distinction was drawn between the Pension Scheme and the CPF Scheme.
Those who had received benefits of Employer‟s contribution under the
CPF Scheme, it was held did not have a vested right to claim coverage
under the Pension Scheme.
24. In PEPSU Road Transport Corporation v. Mangal Singh , (2011)
11 SCC 702 , again the distinction between the two retirement benefits in
the form of CPF, i.e. Compulsory Contributory Provident Fund as per the
W.P. (C) Nos. 8173/2016 & 9949/2016 Page 15 of 19
EPF Act, and the Pension Scheme was drawn and highlighted. Both
provide social security by way of retiral benefits. CPF, it was observed, is
in the nature of substitute for old-age pension.
25. In Rajasthan Raya Vidyut Vitran Nigam Limited v. Dwarka
Prasad Koolwal and Others , (2015) 12 SCC 51 the Supreme Court dealing
with a similar situation, held that employees could take benefit of either the
CPF Scheme or the GPF-cum-Pension Scheme. Employees who had opted
for CPF cannot compel or force the Government/authorities to cover them
under the Pension Scheme as it had turned out to be more beneficial and
advantageous on account of revised computation of pension. An employee
who continues to be a member of the CPF Scheme, having opted for the
same, cannot ask for Pension Scheme as per his convenience. No doubt in
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this case in spite of 8 option offers, the last one being on 4 February,
1997, the employees had not opted for switching to the Pension Scheme,
but this would not be the sole factor which had compelled the Supreme
Court to decide the issue. In the present case also, the Pension Scheme
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dated 27 November, 1992 was operational and made effective from 1
November, 1995. W.P.(C) No. 48/2001 by the Workers‟ Union and others
was filed after 6 years. By then the earlier perception held by Jagdish
Chandra and others that the Pension Scheme of 1992 might not work or be
beneficial had proved to be wrong. Subsequently, all working and retired
W.P. (C) Nos. 8173/2016 & 9949/2016 Page 16 of 19
employees wanted to be governed and covered by the Pension Scheme
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dated 27 November, 1992. Noticeably, nearly two-thirds of employees
had, by default or otherwise, opted for this Pension Scheme. Thus the
contention of Jagdish Chandra and others that they were not aware of the
terms or the conditions or that new and beneficial terms were incorporated
by the Central Government is make belief and farfetched. We would like to
reproduce some of the findings and observations of the Supreme Court in
Rajasthan Raya Vidyut Vitran Nigam Limited (supra) . The relevant
paragraphs read:-
“36. In their writ petition filed in the High Court the
respondents stated that by virtue of this order dated 23-8-
1997, the calculation of pension, family pension and
commutation of pension under the Pension and GPF
Scheme, 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
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
Scheme. Unfortunately, by that time the period for making
the switch-over had expired in terms of the 8th notice dated
4-2-1997. Therefore, since the respondents were unable to
take advantage of the beneficial computation under the
Pension and GPF Scheme 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
RSEB from time to time over a period of 8 years.
37. 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
23-8-1997 the respondents had a change of heart and sought
W.P. (C) Nos. 8173/2016 & 9949/2016 Page 17 of 19
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.
XXXX
58. When the Pension Regulations and the GPF Scheme 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 Scheme. This option had to be exercised within a
period of 90 days from the cut-off date, that is, 28-11-1988.
But 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. The right of an employee to switch over was,
therefore, limited in time by the Pension and GPF Scheme.
However, administrative orders issued by 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.
59. But, the 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.
60. 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
W.P. (C) Nos. 8173/2016 & 9949/2016 Page 18 of 19
Scheme and the GPF Scheme under the Pension
Regulations and the GPF Scheme 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 RSEB to give them another option to switch over
to the Pension and GPF Scheme.”
26. In view of the aforesaid discussion, Writ Petition (C) No. 9949/2016
filed by Jagdish Chandra and others is dismissed. Writ Petition (C) No.
8173/2016 filed by the DTC is allowed. OA No. 3423/2010 filed by
Jagdish Chandra and others will be treated as dismissed and the directions
st
given in the impugned order dated 1 April, 2015 passed by the Tribunal
are set aside and quashed. In the facts of the case, there would be no order
as to costs.
SANJIV KHANNA, J.
CHANDER SHEKHAR, J.
MARCH 21, 2017
VKR
W.P. (C) Nos. 8173/2016 & 9949/2016 Page 19 of 19