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LPA/2592/2004 3/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 2592 of 2004
In
SPECIAL
CIVIL APPLICATION No. 9146 of 1999
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
NARANBHAI
DAHYABHAI PATEL & 1 - Appellant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================
Appearance :
MS
SHANU S PATHAN for the Appellants.
Mr.N.J.Shah, Assistant
GOVERNMENT PLEADER for Respondent no.1
MS SEJAL K MANDAVIA for
Respondent nos. 2 and 3.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 21/09/2011
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE V. M. SAHAI)
1. By
way of this Appeal, the appellant has challenged the judgment and
order dated 27.9.2010 passed by the learned Single Judge in Special
Civil Application No. 9146 of 1999.
2. Learned
counsel for the appellant has contended that the learned Single Judge
has committed an error in not granting the prayer made by the
petitioner to grant pay scale which were granted to to the junior
employees. Learned counsel for the appellant has shown the service
book of juniors and also benefits conferred to the juniors. However,
while considering the case of the petitioner,the learned Single Judge
has observed that in view of the decision of the Apex Court in Union
of India and others v.M.K.Sarkar 2010(2)SCC 59, the
petitioner has not opted when juniors had opted for earlier scheme.
In paragraphs 9 and 17 of the said judgment, the Apex Court has
observed as under:
“9. When a
scheme extending the benefit of option for switch over, stipulates
that the benefit will be available only to those who exercise the
option within a specified time, the option should obviously be
exercised within such time. The option scheme made it clear that no
option could be exercised after the last date. In this case, the
respondent chose not to exercise the option and continued to remain
under the Contributory Provident Fund Scheme, and more importantly,
received the entire PF amount on his retirement.”
17. Even on
merits, the application has to fail. In Krishena Kumar v.Union of
India a Constitution Bench of this Court considering the options
given to the railway employees to shift to pension scheme, held that
prescription of cut-off dates while giving each option was not
arbitrary or lacking in nexus. This Court also held that provident
fund retirees who failed to exercise option within the time were not
entitled to be included in the pension scheme on any ground of
parity. Therefore, the respondent who did not exercise the option
available when he retired in 1976, was not entitled to seek an
opportunity to exercise option to shift to the pension scheme, after
the expiry of the validity period for option scheme, that too in the
year 1998 after 22 years.”
3. The
principles laid down by the Apex Court will also apply to the facts
of the instant case. In that view of the matter, the view taken by
the learned Single Judge is just and proper and more particularly in
view of the judgment of the Apex Court cited above. The Appeal is
devoid of merits. It is accordingly dismissed.
(V.M.SAHAI,J)
(K.S.JHAVERI,J)
***vcdarji
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