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

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

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

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

 

 
Rajasthan Agriculture University, Bikaner …..Appellant

 

Versus

State of Rajasthan & Ors. …..Respondents

 

 

 

J U D G M E N T
1 ANIL R. DAVE, J.

 
1. Leave granted.
2. Being aggrieved by the judgment delivered in D.B. Civil Special
Appeal (Writ) No. 32 of 2008 in S.B. Civil Writ Petition No. 1738
of 2003 dated 20th January, 2001, by the High Court of Rajasthan,
the Rajasthan Agriculture University has filed this appeal.
3. The facts giving rise to the present appeal, in a nutshell, are as
under :-
Respondent No. 2 was in employment of the appellant-University.
Prior to his employment under the appellant-University, respondent
No. 2 had worked with the State of Rajasthan in Veterinary &
Animal Husbandry Department. After taking voluntary retirement
from his State service, he had joined the erstwhile Mohanlal
Sukhadia University, Udaipur. Subsequently, the said university
had been bifurcated and the appellant-University was formed.
Service of respondent No. 2 had been taken over by the appellant-
University.
4. The question which is to be decided is whether respondent No. 2 is
entitled to pension as claimed by him or he is eligible to get his
retirement benefits under Contributory Provident Funds Scheme (for
short “the C.P.F. Scheme”).
5. Upon taking voluntary retirement from the State of Rajasthan,
respondent No. 2 is getting pension from the State of Rajasthan in
respect of the services rendered by him to the State of Rajasthan.
After being in employment of the appellant-University, along with
entire staff of the appellant-University, respondent No. 2 was
also asked to give his option whether he was inclined to opt for a
Pension Scheme or for a C.P.F. Scheme. The options were invited by
the appellant-University under Notification
No.Pension/RAJAU/C/91/F-75/3668- 768 dated 17th August, 1991. It
was stated in the said Notification that the employees who were
in service of the appellant-University as on 1st
January, 1990, shall have to exercise their option in writing,
either for the Pension Scheme or for continuation under the
existing C.P.F. Scheme within 3 months from the date of the
Notification. It was further provided in the Notification that the
employees, who would not exercise the option within 3 months from
the date of the Notification, would be deemed to have opted for
the Pension Scheme.
6. Unfortunately, respondent No. 2 could not intimate his option to
the appellant-University within the period prescribed but by his
letter dated 3rd January, 1992, he had opted for the C.P.F.
Scheme. He specifically stated in his communication dated 3rd
January, 1992 that he did not opt for the Pension Scheme. Perhaps
as a special case, the option exercised by him had been accepted
by the appellant-University and the acceptance was kept on record
after the authorized signatory of the appellant-University had
accepted the option. Thus, his option for continuation under the
C.P.F. Scheme had been accepted by the appellant-University.
7. On 30th June, 1997, respondent No. 2 retired from service and as
per the record of the University, as he had opted for the C.P.F.
Scheme, he was paid all his retirement benefits payable to him
under the C.P.F. Scheme.
8. Respondent No. 2, thereafter made a grievance that as he had not
exercised his option within the prescribed period of 3 months from
the date of the Notification dated 17th August, 1991, as per the
conditions incorporated in the said Notification, he should have
been deemed to have opted for the Pension Scheme and therefore, he
should be paid pension as per the Pension Scheme.
9. The request made by respondent No. 2 had not been accepted because
the appellant-University had already accepted the option of C.P.F.
Scheme exercised by him.
10. In the circumstances, after about 6 years, respondent No. 2 filed
S.B. Civil Writ Petition No. 1738 of 2003 praying for a direction
to the effect that the appellant-University should pay pension to
him. The High Court allowed the petition by giving a direction to
the appellant-University to consider the case of respondent No. 2.
Being aggrieved by the aforestated direction, the appellant-
University had filed D.B. Civil Special Appeal (W) No. 32 of 2008
and at the same time a decision was taken by the appellant-
University not to change its decision with regard to giving
benefit of the C.P.F. Scheme to respondent No. 2.
11. By virtue of the impugned judgment delivered by the High Court,
the appellant-University was directed to give pension to
respondent No. 2. Thus, the Division Bench of the High
Court has directed the appellant-University to change the manner
in which retirement benefits should be calculated and give pension
to respondent No. 2 as if he had opted for the Pension Scheme.
12. The appellant-University has been aggrieved by the aforestated
judgment and therefore, this appeal has been filed.
13. The learned counsel appearing for the appellant-University had
submitted that having once opted for the C.P.F. Scheme under
letter dated 3rd January, 1992 and when the said request made by
the respondent No. 2 had been accepted by the appellant-University
and as the amount payable to respondent No. 2 had already paid to
him, it was not open to respondent No. 2 to change his stand and
ask for pension as if he had opted for the Pension Scheme. The
learned counsel had further submitted that the writ petition had
been filed after more than 5 years and that too, after accepting
the total amount payable to him under the C.P.F. Scheme.
14. The learned counsel had submitted that respondent No. 2 could not
have been permitted to change his stand after his retirement. He
had drawn our attention to the letter of option duly signed and
filed before the appellant-University by respondent No. 2 and the
said option exercised by him, even though at a belated stage, had
been accepted by the appellant-University. This was a favour done
to respondent No. 2 by the appellant-University.
15. According to the learned counsel, it was not a case where no
option was exercised by respondent No. 2. It is true that
respondent No. 2 did not exercise his option within the period
prescribed but his delay in exercising option had been impliedly
condoned and the option exercised by respondent No. 2 was accepted
by the appellant-University and therefore, the deeming fiction
incorporated in the Notification would not be of any help to
respondent No. 2, so as to treat him as if he had opted for the
Pension Scheme by default.
16. The learned counsel for the appellant-University had further
submitted that the University has limited funds and if such
changes in exercise of option is permitted, the appellant-
University would be in great financial difficulties. He had also
submitted that the High Court had become unduly lenient towards
respondent No. 2. He had, therefore, submitted that the appeal
should be allowed and the direction given by the High Court with
regard to payment of pension to respondent No. 2 be quashed.
17. On the other hand, the learned counsel appearing for respondent
No. 2 had vehemently submitted that once respondent No. 2 had not
exercised his option within the period prescribed in the
Notification dated 17th August, 1991, he ought to have been
treated as if he had opted for the Pension Scheme as per the
deeming fiction incorporated in the Notification. He had further
submitted that immediately upon retirement, respondent No. 2 had
made a grievance that he was wrongly considered to have opted for
the C.P.F. Scheme and had written several letters and therefore,
in fact, there was no delay as alleged. The learned counsel had
also tried to compare provisions with regard to payment of
retirement benefits by other universities of the State of
Rajasthan and had made an effort to persuade this Court to the
effect that respondent No. 2 ought to have been given pension in
view of the fact that similarly situated employees of other
universities were also paid pension.
18. We have heard the learned counsel and also have considered the
relevant record forming part of the paper book.
19. We are of the view that the High Court ought not to have given a
direction to the appellant-University to give pension to
respondent No. 2 as if he had opted for the Pension Scheme.
20. It is an admitted fact that respondent No. 2 had exercised his
option not within the period prescribed but little late. Though
late, respondent No. 2 had opted for joining or continuing with
the C.P.F. Scheme.
21. The appellant-University accepted the option exercised by
respondent No. 2 and therefore, it cannot be said that the deeming
fiction incorporated in the Notification would help respondent No.
2. For sake of convenience, relevant extract of the Notification
dated 17th August, 1991, is reproduced hereinbelow :-
“….Thus all employees who were in service on 1.1.1990 shall
have to exercise their option in writing, either for the
pension scheme under these regulations or for continuance
under the existing C.P.F. Scheme, within 3 months from the
date of notification of this provision and shall submit the
same to the Comptroller, Rajasthan Agriculture University,
Bikaner in the prescribed form. The existing employees who
do not exercise option within the period specified under
these regulations shall be deemed to have opted for the
pension scheme. Option once exercised shall be final and
irrevocable…”

 

 
22. Though, respondent No. 2 did not exercise his option within the
period prescribed under the aforestated Notification, when he had
exercised the option on 3rd January, 1992, for continuing to be
under the C.P.F. Scheme and when the appellant-University had
graciously accepted the option exercised by respondent No. 2, he
would not get benefit under the deeming fiction incorporated in
the Notification. It would be unfair to the University if the
submission of respondent No. 2 is accepted. A special favour was
done to respondent No. 2 by accepting his option even after the
prescribed period was over. Now, at this stage, after his
retirement, respondent No. 2 wants to take undue advantage of the
favour done to him by the appellant university, which cannot be
permitted. Had respondent No. 2 not exercised his option at all,
he would have been surely treated to have accepted the Pension
Scheme but as he had given his option late, which had been
graciously accepted by the appellant-University, it cannot be said
that respondent No. 2 should be treated to have accepted the
Pension Scheme.
23. All averments pertaining to employees of other universities are
not relevant because each employer university would have its own
scheme with regard to payment of retirement benefits to its
employees.
24. We may add here that respondent No. 2 is a highly literate person
and he must have known the consequences, when he had opted for the
C.P.F. Scheme under his letter of option dated 3rd January, 1992.
It was his conscious effort to see that he continues with the
C.P.F. Scheme and the said effort was respected by the appellant-
University by showing special favour, as his option was accepted
even after the time prescribed in the Notification was over.
25. For the aforestated reasons, we are of the view that the High
Court was in error by giving a direction to the appellant-
University that respondent No. 2 should be given pension as if he
had opted for the Pension Scheme.
26. The appeal stands allowed with no order as to costs.

 

…………………………………………..J.

(ANIL R. DAVE)

 
….…………………………………
……….J.

(DIPAK MISRA)

New Delhi
August 27 , 2013
———————–
10

 

 

 

 

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