Rajasthan High Court
Hari Kishore Sharma vs The State Of Raj & Ors on 21 October, 2011
In the High Court of Judicature for Rajasthan
S.No. CWPNos. / Name of Petitioners/ Versus
1.5940/2003 Hari Kishore Sharma Versus State & Ors.
2.4950/2002 Narayan Lal Sharma Versus State & Ors.
3.4991/2002 G.D. Falor Versus State & Ors.
4.5033/2002 S.P. Garg Versus State & Ors.
5.5424/2002 Laxman Dass Dewani Versus State & Ors.
6.8097/2002 N.L. Middha Versus State & Ors.
7.9007/2002 Heera Lal Verma & ors Versus State & Ors.
8.9011/2002 Raj. Rajya Vidyut Karmachari Versus State & Ors.
9.691/2003 Natwar Lal Harkut & anr. Versus State & Ors.
10.800/2003 Aziz & ors. Versus State & Ors.
11.807/2003 Prakash Chand Sharma & Ors Vs. State & Ors
12.2243/2003 Dhanpat Rai Yadav Versus RRVPNL & Ors.
13.3773/2003 Vipin Kumar Agarwal Versus State & Ors.
14.4801/2003 Sobhag Mal Chandak Versus State & Ors.
15.7242/2003 Manmohan Chand Jain Versus RRVPNL & Anr.
16.69/2004 Kamal Kishore Kapoor Versus State & Ors.
17.86/2004 Ganesh Narayan Jhalani Versus State & Ors.
18.2382/2004 Radhey Shyam Gupta Versus State & Anr.
19.2393/2004 Ved Prakash Arora Versus State & Anr.
20.3100/2004 Surendra Agarwal Versus State & Ors.
21.6719/2004 Bhagwan Singh & Anr. Versus Secy. Energy & Ors.
22.5476/2005 Prakash Chandra Saxena Versus State & Ors.
23.9728/2006 Sitaram Swami Versus State & Ors.
24.505/2007 G.S. Bhardwaj Versus State & Ors.
25.5033/2007 Prem Ratan Toshniwal Versus State & Ors.
26.1079/2008 Hari Singh Versus State & Ors.
27.4065/2008 S.K. Sharma & Ors. Versus State & Ors.
28.4306/2008 Ghan Shyam Gupta Versus State & Ors.
29.6007/2008 Rajendra Kumar Versus State & Ors.
30.7251/2008 Mohan Lal & Ors. Versus State & Ors.
31.8537/2008 T.S. Arora Versus RRVPNL & Anr.
32.9845/2008 R.P. Singh & Ors. Versus State & Ors.
33.10711/2008 Badri Lal Karan Versus RRVPNL
34.10915/2008 Smt. Sarwan Kaur Versus RRVPNL
35.11427/2008 S.P. Rastogi Versus RRVPNL.
36.11428/2008 Rakesh Kumar Gupta Versus RRVPNL.
37.12260/2008 Suresh Chand Tiwari & Ors. Versus State & Ors.
38.13401/2008 Mahesh Chand Agarwal Versus RRVPNL.
39.776/2009 Hari Om Sharma Versus State & Ors.
40.778/2009 Shiv Lal Yadav Versus State & Ors.
41.2150/2009 Rajkumar Agrawal Versus State & Ors.
42.2404/2009 Ramji Lal Versus State & Ors.
43.6266/2009 Satya Narayan Higer Versus State & Ors.
44.7081/2009 Shankar Lal Vaswani Versus Chairman, RRVPNL
45.7083/2009 Hanuman Sahai Versus Chairman, RRVPNL
46.7084/2009 Rajender Kumar Saxena Versus Chairman, RRVPNL
47.7749/2009 Shri K.C. Mittal & Ors. Versus Secy. (ED) & Ors.
48.7914/2009 Kailash Kanwatia Versus State & Ors.
49.8018/2009 Nanchi Lal Versus Chairman, RRVPNL
50.8988/2009 Manoj Kumar Gupta & Ors. Versus State & Ors.
51.9237/2009 C.V. Thomas Versus RRVPNL & Ors.
52.9420/2009 Vidhyut Mandal Sachiwalaya Versus Secy. (ED) & Ors.
53.10288/2009 Dinesh Chandra Sharma & Ors. Versus Secy(ED)&Anr
54.10728/2009 Nathu Lal Sharma Versus State & Ors.
55.12164/2009 Nawal Kishore Agrawal & Ors. Versus State & Ors.
56.12230/2009 Kailash Chandra Bhatt Versus State & Ors.
57.12374/2009 Jagdish Prasad Agrawal & Anr. Versus State & Ors.
58.12789/2009 Surendra Kumar Nigam & Ors. Versus State & Ors.
59.12974/2009 Hemant Mishra & Ors. Versus State & Ors.
60.13500/2009 Manohar Lal Gobhuj & Ors. Versus State & Ors.
61.13802/2009 Jai Singh Saini Versus Chairman & MD & Anr.
62.391/2010 Ashok Kumar Rathore & Ors. Versus State & Ors.
63.1731/2010 Vinay Kumar Bhatnagar & Ors. Versus State & Ors.
64.3526/2010 Kamlesh Kumar Sharma & Ors. Versus State & Ors.
65.5238/2010 Shankar Lal Napit & Ors. Versus State & Ors.
66.5662/2010 Lalit Kumar Bakliwal & Ors. Versus Secy. ED & Ors.
67.8111/2010 Smt. Asha Batra & Ors. Versus State & Ors.
68.9409/2010 Tikam Chand Khatri & Ors. Versus State & Ors.
69.10900/2010 Dwarka Prasad Koolwal & Ors. Versus State & Ors.
70.12920/2010 Shiv Kumar Sharma & Ors. Versus State & Ors.
71.13183/2010 Devki Nandan & Ors. Versus Secy (Energy) & Ors.
72.13215/2010 Shri Krishna Dutta & Ors. Versus State & Ors.
73.13473/2010 Jagdish Prasad Tank & Ors. Versus State & Ors.
74.15447/2010 Suresh Kumar Rajpurawala & Ors. Vs. State & Ors.
75.1158/2011 Khyali Ram Sharma & Ors. Versus State & Ors.
76.2180/2011 Ramesh Chand Garg & Anr. Versus State & Ors.
77.2620/2011 Harish Chandra Bakhtiani Versus State & Ors.
78.3407/2011 Uttam Prakash Lalwani & Ors. Versus State & Anr.
79.3615/2011 Praveen Kumar Mathur Versus State & Ors.
80.4659/2011 Surendra Kumar Varyani Versus State & Ors.
81.10606/2011 Nikhil Choudhary Vs State (Deptt of Energy)& Ors.
82.10607/2011 Rakesh Kr. Kasliwal Vs State (Deptt of Energy)& Ors.
83.11831/2011 Bhagwati Prasad & Anr.Vs State (Energy Deptt.) Ors.
Date of Order ::: 21/10/2011
Hon'ble Mr. Justice Ajay Rastogi
Mr. RN Mathur, Sr. Adv., & Mr. Ashok Gaur Sr. Adv., with
Mr. Kapil Bardhar, Mr. Shashank Agrawal,
Mr. HOP Mathur, Mr. VK Mathur,
Mr. Rajendra Arora, Mr. Ashok Yadav,
Mr. Prahlad Sharma, & Mr. Nitin Jain,
Mr. SM Mehta, Sr. Advocate
Mr. GC Garg, & Ms Sonal Singh, &
Mr. LL Gupta, for respondents-RRVPNL
Mr. Virendra Lodha, Sr. Adv. With Mr. Ankit Jain,
Mr. Jag Mohan Saxena, & Mr. Shantanu Sharma
Mr. Pradeep Kalwani, Addl. Govt. Counsel for State
These petitions have been filed by employees of erstwhile Rajasthan State Electricity Board ("RSEB") and presently members of Five companies came into existence after unbundling of RSEB in the year 2000.
RSEB was constituted on 28/06/1957. However, RSEB was dissolved in exercise of powers vested under Rajasthan Power Sector Reforms Act, 1999 through Rajasthan Power Sector Reforms Transfer Scheme, 2000 and on its unbundling, it was converted into Five Companies ad infra:
(A) Rajasthan Rajaya Vidyut Utpadan Nigam Limited, Jyoti Nagar, Jaipur (“RRVUNL”)
(B) Rajasthan Rajya Vidyut Prasaran Nigam Ltd., Jyoti Nagar, Jaipur (“RRVPNL”)
(C) Jaipur Vidyut Vitran Nigam Limited, Jyoti Nagar, Jaipur. (“JVVNL”)
(D) Ajmer Vidyut Vitran Nigam Limited, Hati Bhata, Ajmer. (“AVVNL”)
(E) Jodhpur Vidyut Vitran Nigam Ltd, New Power House, Indl. Area, Jodhpur
All afore Five Electricity Companies are owned & controlled by Government of Rajasthan and its employees are absorbed in respective electricity Company on the same terms & conditions as governed while being employees of erstwhile RSEB.
All the writ petitioners are primarily aggrieved by the act of respondents in not permitting them to exercise their options for pension & GPF under the Scheme of Regulations, 1988 in place of CPF Scheme of which they have been members on their entry into service of RSEB, since Contributory Provident Fund Scheme (“CPF Scheme”) was made effective on its employees being appointed on or after 01/07/1957 and after constitution of RSEB, since there was only CPF scheme obviously they became member of CPF Scheme.
Instant petitioners were appointed on various posts in the erstwhile RSEB which was a statutory body created by the Act of the State for performing the work of generation, transmission & distribution of electricity in the State of Rajasthan. Recruitment & service conditions of its employees were governed by Rules & Regulations framed by RSEB.
It is also a matter of record that majority of petitioners are holding lowest posts in respective services of different companies created after unbundling of RSEB; and from the list made available to the Court, it appears that they are either working as LDC, Helper, Peon, Junior Engineer, Jr.Accountant, Stenographer or on technical posts-Electrician Welder, Lineman, Fitter, Meter Readers etc.; and at the same time, few of writ petitioners are holding posts of Class-II & I, as well. But, most of them are in ministerial/technical cadre holding lowest posts in the ladder.
In exercise of powers conferred U/s 79 of Electricity (Supply) Act, 1948, the RSEB constituted by Rajasthan Government vide Notification dt.28/06/1957 framed the following Regulations for the matters provided in S.79(c) of the Act for its employees & officers :
(1) RSEB Employees Pension Regulations, 1988 (Pension Scheme, 1988″) and
(2) RSEB Employees General Provident Fund Regulations, 1988 (“GPF Scheme, 1988”);
making it effective from 28/11/1988. Pursuant to which, options were invited by the RSEB from its officers & employees to submit their written consent for pensionary & gratuity benefits on the same lines/Rules as are being allowed to the erstwhile employees of the Electrical & Mechanical (E&M) Department opted Board’s service, within Ninety days from the date of notice issued pursuant to the Pension & GPF Scheme, 1988 having come into force.
After introduction of RSEB Pension & GPF Scheme, 1988, first notice came to be issued on 06/01/1989 for grant of options to the RSEB employees who are availing retiring benefits admissible under the RSEB CPF Rules/Jodhpur CPF Rules to come over to the pensionary & GPF benefits under RSEB Pension & GPF Regulations, 1988. Thereafter, time & again such like notices came to be issued inviting options from the employees and lastly it was issued on 04/02/1997 to exercise their options on or before 30/06/1997.
But instant writ petitioners are those unfortunate who for one reason or the other details whereof will be furnished in a later part of the order, could not submit their options pursuant to any of notices issued under Pension & GPF Regulations, 1988. When the matter again came up for consideration on a number of representations of RSEB employees pouring in to allow for exercising option to come over pensionary benefits, order came to be issued by the Secretary of RSEB on 12/03/1999 and it was observed that the mater was considered and it has been felt that it would not be desirable to provide any more option to employees as it would be a never ending exercise and it was further clarified that any request for allowing opportunity to exercise option for pensionary benefits should not be entertained in any circumstances in future.
Since opportunity to exercise option to come over pensionary benefits was completely closed, and the petitioners stood deprived from submitting their option, majority of them preferred writ petitions (CWP-6719/2004 Bhagwan Singh & Ors Vs. Secy.Energy & Ors) alongwith bunch of petitions which came to be disposed of vide order dt.28/02/2008 directing writ petitioners to make their representations and respondents were directed to examine such representations, if made and decide in accordance with law. Pursuant to Court order dt.28/02/2008, the employees submitted their representations which were rejected vide order dt.26/06/2008 by the Committee constituted by the respondents which came to be assailed in instant bunch of petitions.
It appears that some of writ petitions filed in the year 2002 or thereafter remained pending and most of the petitions in instant bunch have been filed after rejection of their representations submitted pursuant to Court orders passed in their earlier writ petitions, and the issue raised in instant bunch of petitions since being common even in pending writ petitions prior to Court order dt. 28/02/2008, they were heard together and are being decided by present order.
It is relevant to record that though the opportunity to exercise options to come over pensionary benefits was granted to RSEB employees time & again, but it appears that looking to geographical structure of the State of Rajasthan where RSEB employees are being posted in remotest areas where there are no means of communications, such employees remain completely unaware of any of such notices issued asking for options to come over pensionary benefits pursuant to Pension Regulations, 1988 and GPF Regulations, 1988.
It appears that to resolve the dispute for giving option for Pension Scheme by RSEB employees, Whole Time members & Head of Departments resolved in its meeting held on 04/01/1995 – copy of the minutes was circulated vide communication dt.02/02/1995, observed ad infra:
“1. Extension in the date of giving option for pension Scheme.
It was brought to notice that the last date for giving option for Pension Scheme by the employees under CPF Scheme had expired in1991 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. The employee will himself be allowed to give option and not his nominee after death.”
Minutes of the meeting of the Whole Time Members & HODs (supra) was never placed before the Board if at all required for its ratification and in absence of its ratification it was not carried out. It is relevant to record that the respondents in their reply to writ petition has specifically averred that the agenda (supra) was never placed before the Board for ratification.
Main thrust of the contentions advanced by Shri RN Mathur, learned Senior Counsel appearing for petitioners is that options were invited by erstwhile RSEB indisputably on eight different occasions but in fact there was no proper circulation of such consistent notices inviting options – in absence whereof, petitioners were completely unaware of any fair opportunity being available to opt for becoming members of Pension & GPF Schemes 1988 and there being complete absence of wide publicity and circulation undertaken by the authority upon and failed to serve notices upon individual employee and on account of the fault being committed by respondents, valuable rights of petitioners to opt for and exercise option to come over pensionary benefits despite they being eligible & having fulfilled conditions provided under Pension & GPF Schemes, 1988, on account of mere technicality, their right to claim pension have seriously been jeoparadised. In support, reliance has been placed on the judgment in Dakshin Haryana Bijli Vitran Nigam Vs. Bachan Singh (2009(14) SCC 793).
Counsel further submits that Whole Time Members & HOD in its meeting held on 04/01/1995 (Ann.A/13) took unequivocal decision holding that the facility of opting for Pension Scheme will be available upto 6 months before retirement to the serving employees only and as is evident from its communication dt.02/02/1995 (Ann.A/13), and such resolution was not required to be ratified by the Board and the respondents are under obligation to act upon the decision taken by Whole Time Members in its meeting (supra) and the petitioners being in service certainly are entitled to claim by opting for pension Scheme before six months of their retirement and to opt for Pension & GPF Scheme while in service as and when they consider to be appropriate.
Counsel further submits that what has been recorded by Whole Time Members in its meeting held on 04/01/1995 is certainly in conformity with the Pension & GPF Schemes, 1988 and that apart, after introduction of RSEB employees GPF Regulations, 1988, a Note was appended & substituted vide Order No.13 dt. 09/03/1994 making it effective from the date of Pension & GPF Scheme in the Board and adequate safeguards have been provided for adjustment of CPF contribution amount out of pension & gratuity for those who opt for Pension & GPF Scheme, 1988; inasmuch as even if options being provided for existing employees at a later stage, that in no manner is going to cause any prejudice either to respondents or anyone else since inbuilt safeguards have been provided in Scheme of Pension & GPF Regulation, 1988.
Counsel further submits that when representations were made, Secretary of erstwhile RSEB took its own decision, without there being decision of the Board vide Order dt.12/03/1999 and circulated that no more opportunity will be provided to opt for pension Scheme in any circumstances which became the cause of litigation. Counsel further submits that when the decision was taken by erstwhile Board at all stages inviting options from existing RSEB employees, the decision was expected to be taken by the Board as to whether such opportunity could be further afforded or not but the Secretary or the Chairman of the Board in his individual capacity does not hold any competence in taking decision dt.12/03/1999 and rejection of their representation/ objections vide order dt.26/06/2008 is wholly arbitrary and deserves to be quashed.
In supplement to what has been urged by Shri RN Mathur, Senior Counsel (supra), Shri Ashok Gaur, Senior Counsel further submits that under Pension & GPF Regulations, 1988, there is no time fixed for option being invited from existing employees covered by definition Cl.3(k) of Pension Regulations, 1988; & restriction having been later on imposed or fixing the time Schedule in calling options from existing employees was beyond authority & competence and was not in terms of Pension Regulations 1988, options could have been furnished by existing employees while in service and time schedule provided in GPF Scheme, 1988 will not be imposed upon employees who are interested to opt for under pension Scheme, 1988.
Counsel further submits that the respondents were not competent to withhold right of existing employees in submitting options, merely on passing of administrative order dt.12/03/1999 and the benevolent Scheme could not be supplanted by administrative decision of the Board in putting ban from submitting options provided under Pension Scheme 1988 and a decision taken by respondents in not permitting existing employees to submit their option for pension Scheme, 1988 after 30/06/1997 being without authority & competence is in violation of Art.14 & 16 of the Constitution and deserves to be quashed.
A list has been supplied giving details of certain individual cases, which this Court consider it appropriate to refer herein below.
CWP-800/2003 (Aziz & Ors Vs. State) has been jointly filed by four petitioners but after death of petitioner-1 (Aziz) on 30/06/2006, his legal representatives were taken on record and who are claiming pension on the basis of option exercised by them. It has been specifically averred in the writ petition that option cum nomination exercised by petitioner-1 (Aziz) in May, 1997 was forwarded by his controlling Officer (Assistant Engineer (O&M) RSEB, Amber, Jaipur) vide letter No. 3777/dt.28/03/1998 (Ann.11) but his option form was not considered by the respondents on the premise that his option form was not acknowledged by Controller of Accounts (P&F) RSEB, Jaipur. But the fact remains that option form was submitted by petitioner-1 (Aziz) in May, 1997 and forwarded by Assistant Engineer (O&M), RSEB, Amber Jaipur on 28/03/1998 and this fact could not have been controverted by respondents in the reply and for no fault of petitioner-1 (Aziz), his option to come over pension Scheme, 1988 could not be denied.
In CWP-3100/2004 (Surendra Agarwal Vs. State), it has been inter-alia averred that petitioner submitted his option form before last date 20/05/1989 and it was forwarded by his controlling officer to the Controller of Accounts (P&F), RSEB, Jaipur but as alleged, after a delay of 11 days vide letter (No.310/ dt.01/06/1989) and this delay having occurred due to no fault on his part could not come in his way which may deny his rightful claim; however, the extension was granted upto 30/06/1997.
In CWP-13401/2008 (Mahesh Chand Agarwal Vs. RRVNP) the petitioner inter-alia averred that he submitted his option form vide letter dt.20/02/1996 (Ann.2) which was forwarded by his controlling authority to the Secretary P&F) RSEB vide letter dt.06/03/1996 (Ann.3). But he was informed vide letter dt.10/04/1996 that his option form being conditional has not been accepted, in response to which he sent representation dt.20/04/1996 (Ann.4) that there was no condition, which could be construed to be any kind thereof; yet, he clarified vide his letter dt.20/04/1996 (Ann.4) that alleged condition under letter dt. 10/04/1996 may kindly be treated as deleted and his option form may be considered. But the petitioner stood retired from service on 31/03/2010 and has prayed that he is entitled for option without going into controversy pursuant to form submitted on 20/02/1996.
In CWP-12230/2009 (Kailash Chandra Bhatt Vs. State), option form submitted by petitioner was forwarded by his controlling officer (Executive Engineer (TCU-II), rSEB, Bhilwara) vide letter dt.30/03/1996 (Ann.6) and despite last date being 30/06/1997 and his option form was forwarded by controlling authority in March, 1996 and stood retired without having benefit of pension and with this grievance, he approached this Court.
In CWP-505/2007 (GS Bhardwaj Vs. State), petitioner submitted his option form through Executive Engineer (TDM-II/III) RSEB Jaipur vide letter dt.30/03/1996 (Ann.5) much before the last date (30/06/1997). Yet his grievance was rejected by the Committee vide order dt.26/06/2008.
In CWP-1079/2008 (Hari Singh Vs. State) petitioner exercised his option in the year 1996 which was forwarded by Assistant Engineer (D-I) RSEB, Bharatpur alongwith 33 other option forms vide letter dt.30/03/1996 (in which his bane appears at S.No.7) prior to the last date i.e. 30/06/1997 but his option form has not been accepted despite it was within time fixed by respondents.
Reply to the writ petitions has been filed by respondents raising preliminary objection that instant petitions have been belatedly filed after atleast a decade of issuance of order dt.12/03/1999 when the respondents took decision not to allow any more opportunity to exercise option to come over pensionary benefits as it would be a never ending process. Further objection is that in absence of any duty being casted to extend benefit of Pension Scheme, 1988 that too when petitioners did not opt for the same despite umpteen opportunities being afforded, they cannot claim as a matter of right to exercise option to come over pensionary benefits under Pension Scheme, 1988 and being hopelessly belated, that itself disentitles them to avail of discretionary remedy U/Art.226 of the Constitution. Reliance has been placed upon decision of Apex Court in ShivDass Vs. Union of India (AIR 2007 SC 1330).
Apart from preliminary objections (supra), it has been averred in the reply that after the Pension & GPF Scheme, 1988 came into force; notices were issued by erstwhile RSEB affording opportunity to such existing employees if so desired, to exercise option to come over pensionary benefits and despite eight times, opportunities being afforded still petitioners failed to exercise such options and are raising lame excuses, that will not give any right to seek protection of the Court, claiming permission to become members of Pension & GPF Scheme, 1988, more so when the Scheme, 1988 does not permit to this effect and that apart, the Board took its decision vide its order dt.12/03/1999 that hence forth, it has been decided not to consider any more request in future.
Regarding minutes of meeting of Whole Time Members held on 04/01/1995, it has been averred in the reply that aforesaid minutes were never approved by the Board and in absence whereof, such minutes have no legal sanctity particularly in view of subsequent decision being taken by the Board granting opportunity to submit options at least on three different occasions, thereafter. It has also been averred that one of the options to come over pensionary benefits vide notice dt. 22/08/1995 was published in official gazette dt.11/11/1999 (Ann.R/1-CWP-1731/2010) and presumption can be drawn of wide publicity extended by the Board.
Shri SM Mehta, and Shri Virendra Lodha learned Senior Counsel for respondents submits that many a times, opportunities were afforded to employees of erstwhile RSEB to submit options and become members of Scheme, 1988 but if petitioners for the reasons best known to them, had failed to submit their options to come over pensionary benefits under Pension Scheme, 1988, no legal right can be conferred in their favour seeking mandamus from this Court in seeking further opportunity to submit their option under pension scheme, 1988.
Senior Counsel further submits that cut off date fixed by the RSEB inviting options was upto 30/06/1997 and that cannot be said to be arbitrary and it has a reasonable nexus to be achieved and some cut off date was to be fixed by the authority under the Scheme, 1988; and in instant case, after the RSEB employees Pension Scheme, came into force in November, 1988, options from its employees were called for to come over pensionary benefits and become members of Pension & GPF Scheme, 1988 upto 30/06/1997 and still employees if failed to submit their option, it cannot be said that any legal right of the employee have been infringed – in absence whereof, no writ could be issued in their favour as prayed for. In support, reliance has been placed upon decisions in All India Reserve Bank Retired Officers Assoc. Vs. Union of India (1992(Supp)(1) SCC 664); State of UP Vs. UP University Colleges Pensioners’ Assoc. (1994 (2) SCC 729); Union of India Vs. PN Menon (1994 (4) SCC 68); Krishena Kumar Vs. Union of India (1990 (4) SCC 207) and Union of India Vs. MK Sarkar (2010(2) SCC 59).
This Court has considered rival contentions of the parties and with their assistance, examined material on record. It is an admitted position amongst the parties that all the petitioners are employees of erstwhile RSEB and members of the CPF Scheme at relevant point of time when RSEB Pension Regulations, 1988 & RSEB GPF Regulations, 1988 came into force w.e.f. 28/11/1988 and other than impediments of the option which they had not submitted after the Pension & GPF Scheme, 1988 came into force, all the petitioners fulfill other conditions of eligibility to become members of Pension/GPF Scheme, 1988.
Only question having remains for consideration in bunch of instant writ petitions is as to whether the decision of the Board denying to the petitioners in exercising options to come over pensionary benefits and to become members of the Pension Scheme, 1988, how far action of respondents can be said to be justified and is in conformity with Pension/GPF Regulations, 1988 or is in violation of Art.14 of the Constitution of India.
Before examining submissions made at the bar, it is relevant to first quote some of relevant provisions of Pension & GPF Scheme, 1988 ad infra:
“3. Definitions – Pension Scheme –
In these Regulations unless there is anything repugnant in the subject or context –
(i) “Employee” means any person who is in the service of the Board, but does not include daily labour, Work-charged or casual employee and persons engaged on retention-cum-fee, part time, or any other basis as consultant adviser or counsels for legal, professional or any other purposes.”
(j) “Excluded employee” means an employee on regular time scale/ service who is member of the RSEB CPF Scheme and opts to continue to be the member of the said Scheme. Person employee on daily Labour/ work-charged and through contractor shall also be considered as excluded employee.”
(k) “Existing employee” means an employee who is already in the regular time scales/service of the Board on or before the commencement of the RSEB Pension Regulations, 1988.
(l) “Option” means a written consent of the existing regular employee for Pensionary & 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 Government Rules/ Regulations.”
“3. Definitions – GPF Scheme, 1988
In these Regulations unless there is anything repugnant in the subject or context –
(l) “Employee” means any person employed by the Board on payment of wages or salary for any kind of work manual or otherwise.”
(m) “Excluded Employee” means an employee who having been subscriber to the RSEB CPF Scheme and Jodhpur CPF Scheme opts to continue to be the member of the said Scheme.”
(n) “Existing employee” means an employee who is already in service of the Board on or before the commencement of the RSEB Employees General Provident Fund Scheme, 1988.”
(o) “Option” means a written consent of the existing employee to become either members of the Employees General Provident Fund Scheme, 1988 or to continue as member of the existing CPF/EPF 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/EPF Scheme 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.
(s) “Fund” means the RSEB Employees General Provident Fund, 1988.”
Note : All funds pertaining to the subscribers of the RSEB CPF, who have opted for employees General Provident Fund Scheme shall be transferred to the said Fund on its receipts from the various sources while the employer’s contribution along with interest shall be transferred to RSEB Superannuation Fund. ”
Both the Schemes of Pension & GPF, 1988 are inter-dependant and after Pension & GPF Regulations, 1988 came into force w.e.f. 28/11/1988, notices were alleged to be issued firstly on 06/01/1989 inviting options to be furnished by RSEB employees with 90 days from the date of issue (06/01/1989) in prescribed format appended to the notice in the form of Ann.A in terms of Reg.3(o) of GPF Scheme, 1988.
It further appears that since looking to geographical condition of the State where employees being posted even in remote areas of Rajasthan and are unable to understand as to what is beneficial to them or not ? Notices were issued from the Office of RSEB situated at Jaipur – brief resume whereof is furnished in tabular form ad infra:
Last date to exercise Date of notice option to come over pensionary benefits
1.06/01/1989 90 days from the date of
2.04/04/1989 Further 45 days after expiry of 90 days fixed
vide notice dt.06/01/89
3.11/05/1989 Extending 45 days after expiry of 90 days fixed
vide notice dt.06/01/89
4.19/05/1990 Option to be exercised
5.17/09/1991 Option to be exercised
within 90 days from the date of order dt.17/09/91
6.27/01/1993 Option to be exercised
7.08/05/1995 Option to be exercised
8.22/08/1995 Option to be exercised
9.04/02/1997 Option to be exercised
(Last Notice) upto 30/06/1997
It will be relevant to record that in initial notice dt.06/01/1989, it was observed ad infra:
“This notice shall be given wide publicity. Pasting of this notice on the Notice Board of Secretary, Chief Engineers, Head of Departments, Superintending Engineers, Executive Engineers and the Assistant Engineers of the Board will be treated as sufficient notice to all the Board employees for whom it is intended that they should exercise their option within the stipulated period.”
But subsequent notices issued on 04/04/1989, 11/05/1989, 19/05/1990, 17/09/1991, 27/01/1993, 08/05/1995, 22/08/1995, and 04/02/1997, nowhere indicates that such notices were given publicity or pasted at any of the conspicuous places in the Offices of the RSEB during the period in question. However, in para 3 of the notice dt.22/08/95 it has been noted ad infra:
“3. Pasting of this notice on the Notice Board of various offices of the RSEB will be treated as sufficient notice to all the retired employees of the Board for whom it is intended.”
Other than the two notices (supra), there is no indication even that notice was at all circulated in the Offices of RSEB. To be more precise, after a bunch of notices (supra), reference of notice having been published was of 06/01/1989 and thereafter there was only mention made in the salutary notice dt.22/08/1995 but from which also it is not clear as to where such notices calling for option was circulated. It appears from the record that no one has taken care of being looked into and there is no whisper of these notices being published or circulated by giving wide publicity or pasting notices on the conspicuous places of the offices of the Board and that apart, no material has been placed on record which can prima facie support that notices calling options details whereof (supra) are widely circulated or the mode which was adopted by the respondents giving it a wide publicity to make the employees who are upto the grass root level aware of their right available to exercise option if desired. It is further relevant to record that while representations were made by the petitioners in compliance of the order of the Court, that also came to be rejected vide order dt.26/06/2008.
The submissions made that notices were not sufficiently circulated or given wide publicity by the respondents while inviting options, was repelled only on the premise that on eight different occasions, notices have been issued inviting options to be furnished by RSEB employees besides initial opportunity being afforded to exercise option within 90 days as prescribed under Pension & GPF Schemes, 1988 and from the year 1989 till 30/06/1997 option was available for pension & GPF but the applicants consciously chose RSEB CPF Scheme as it being more lucrative & beneficial to them at that time and option cannot remain open endlessly & no request can now be entertained.
As regards Minutes of the meetings of Whole Time Members held on 04/01/1995, where the decision was taken to make available facility of opting for Pension Scheme upto 6 months before retirement to the serving employees meaning thereby the employee can opt for GPF Pension Scheme while in service; it was repelled on the premise that Minutes of Whole Time Members were never placed before the Board for ratification and no order/amendment was ever issued of the nature of minutes of Whole Time Members; therefore, was never implemented.
At the same time, it is relevant to record that facility of options was provided to those surplus employees of different public Sector Undertakings/Companies having subscribed for CPF in their parent organisation but on absorption in Vidhyut Cos., have been allowed to opt RSEB employees pension Scheme, 1988 at much later stage vide orders dt.14/09/2000, 19/05/2001 & 23/05/2001, respectively.
However, this Court can take judicial notice of geographical position of State of Rajasthan that the RSEB runs its offices in remotest areas as well, being situated far away having distances from Head Office, Jaipur where from Circulars/notices under various Schemes are issued and where employees are posted at far flung remote areas and it would be very difficult for applicants to know when options are being invited from amongst persons after Pension & GPF Scheme, 1988 came into force.
This Court records appreciation that as & when representations were received from employees, generosity has been shown by erstwhile Board and the notices were issued from time to time inviting from the employees to exercise their options to come over pensionary benefits under Pension & GPF Scheme, 1988; but at the same time, this fact cannot be forgotten by the Court that indeed notices (supra) are issued from the office of the Board but no one has taken care to monitor that such notices are at all received in the remote areas where the employees are posted and it was the duty of the employer to see that such notices which confer right upon the employees must reach and be served upon individual employee since his consent in the positive terms was to be obtained and he has to positively fill the option form. Apart from restrictions being imposed, pension is other-wise a right of employee and is not a bounty being paid but contraire, it is a reward for the services rendered by employee and this fact cannot be ruled out that when there were two parallel schemes available after Pension & GPF Scheme, 1988 came into force, option was to be mandatorily furnished by each employee after due application of mind as to whether he wants to continue as a member of RSEB CPF/EPF Scheme with benefits of RSEB Gratuity Rules, 1972 or Jodhpur CPF Scheme with benefit of gratuity under the Gratuity Act, 1972; or did not want to opt for Pension/Gratuity benefits introduced vide Pension & GPF Scheme, 1988.
From Option Form appended to first notice dt.06/01/1989 inviting options from individual employee, having been quoted co-extensively (supra), clearly indicates that intention to issue notice inviting option from employees was not a mere formality; and the intention behind it was that notices inviting options must reach to individual employee posted at far flung remote places so that he should apply his mind and take its own decision that he did not want to exercise option to come over pensionary benefits under Pension & GPF Scheme, 1988 and want to continue as member of CPF/EPF Scheme which he was continuing since his initial appointment with RSEB. To strengthen what has been inferred by the Court is supported by Option Form (Ann.A) appended to the initial notice dt.06/01/1989, which this Court would like to quote since it has a bearing on the issue to be decided, ad infra: Annexure A
I, ……. S/o……. who held the post of …… on the …….Nov. 1988 and working in the office of …… RSEB…. hereby declare as under:-
*1. That I opt the benefit of pension and GPF Schemes including Gratuity as per provision made in the RSEB employees Pension Regulations, 1988 and RSEB Employees GPF Regulations, 1988. My date of appointment in regular service of the Board is ….
I also give my option that the accumulation in my RSEB CPF A/C No…../Jodhpur Contributory Fund A/C No. ……. representing as employees subscription with interest thereon be credited to the GPF A/c to be opened.
I also undertake to contribute monthly subscription towards GPF Scheme at the rates as may be decided by the Board from time to time.
I further opt that I shall not be entitled to the amount of Gratuity admissible under the RSEB Payment of Gratuity Rules, 1972/Gratuity Act, 1972/EDRI 1976 and family pension under the RSEB Employees Family Pension under the RSEB Employees Family Pension Scheme, 1971. OR
“2. I do not opt the RSEB Employees Pension/GPF Scheme, 1988 and want to continue to retain the existing benefits under RSEB CPF Scheme/ Jodhpur Contributory Provident Fund Scheme as the case may be. (Emphasis added) Signature
Attested and certified that he above employee has opted, for Pension and GPF Schemes/opted to retain the RSEB CPF Scheme/Jodhpur Contributory Provident Fund Scheme of which he is already a subscriber.
Head of Department Signature
Name & Designation
Advance copy submitted to the Controller of Accounts (P&F) RSEB, Jaipur
Signature of the employee.”
A careful reading of option form (supra) attached to first notice (Ann.A) clearly depicts that option was invited from each of the employees of the RSEB and has to furnish undertaking that he did not intend to opt RSEB employees Pension/GPF Scheme, 1988 and wanted to continue to retain existing benefit under RSEB CPF Scheme/Jodhpur CPF Scheme; and it was to be signed by the applicant and was further to be attested by the Head of Office or Head of Department that the employee is not inclined to opt for pension & GPF Scheme and to retain the RSEB CPF Scheme/Jodhpur CPF Scheme of which he is already a subscriber.
What has been quoted (supra) indicates that the intention of the Board was not to publish a notice alone and discharged its obligation but the object behind issuance of notice under Pension Scheme, 1988 was that it must reach to the remote areas for being communicated to individual employee who has to exercise option to come over the pensionary benefits and who has to positively disclose his mind that he did not want to opt for RSEB Employees Pension Scheme, 1988; and want to continue as member of the CPF Scheme and in facts of instant case, issuance of notices inviting options to come over the pension & gratuity Scheme, 1988, in the opinion of this Court in substance remains empty formality being complied with but responsible officer has not looked into as to whether notices having been issued from the office of the Board, has ever reached to individual employee posted at remotest places in Rajasthan situated far away from Jaipur and whether his intention has been obtained in the Option Form (Ann.A) appended to the Notice dt.06/01/1989, which as informed to the Court came to be attached at all occasions, whenever notices came to be issued inviting options.
At the same time, There is no material placed on record in support of the notices inviting options (supra) that they were at all given wide publicity through circulation to make it known to each of employees posted in remote areas of Rajasthan and to obtain wishes of individual employee of the Board. In the opinion of this Court, right conferred upon RSEB employees to exercise option to come over pensionary benefits under Pension & GPF Scheme, 1988 has been seriously infringed and such action of the respondents in no manner can be considered to be in conformity with the mandate of Art.14 of the Constitution.
Apex Court in Dakshin Haryana Bijli Vitran Nigam Vs. Bachan Singh (2009(14) SCC 793) has also considered similar issue where instructions came to be issued and circulars were issued to exercise option of pension scheme but the authority failed to show and produce any material on record that such instructions were got noted in writing to the employees and in the absence whereof, it was inferred that the employee had no knowledge of the option as called for pursuant to Circulars and taking note of earlier judgment, it has been observed ad infra:
“20. This Court has taken the view that pension is reward for long service rendered by the employee and not a bounty. The Supreme Court in Subrata Sen Vs. Union of India (2001(8) SCC 71) held that: (SCC p.78, para 14)
“14. … As observed in Nakara case (1983(1) SCC 305) pension is neither a bounty, not a matter of grace depending upon the sweet will of the employer, nor an ex gratia payment. It is a payment for the past services rendered. It is a social welfare measure rendering socio-economic justice to those who in the heyday of their life ceaselessly toiled for the employer on an assurance that in their old age, they would not be left in the lurch.”
“28. In view of the law as has been articulated in a large number of cases where this Court has observed that any discriminatory action on the part of the Government would be liable to be struck down. Hence in this case, it would be totally unreasonable and irrational to deny the respondent pensionary benefits under the Scheme particularly when the appellants have failed to produce any record showing that the instructions dated 06/08/1993 & 09/08/1994 were actually got noted in writing by the respondent. In the absence of any such material, it can well be inferred that the respondent had no knowledge about the options called by the appellants.”
In the instant case, from the statements of petitioners made available to the Court, majority of petitioner-employees barring few, all are employees at the lowest in the ladder in their respective cadre holding posts of LDC, Class IV, Helper, Steno, and Technical posts of Meter Reader, Fitter, etc., and that apart, there are few employees who are either Class-II & I officers or Gazetted officers.
It is also not the case of respondents that those who are Senior Officers were ever served with notices or they had any knowledge of notices having been issued from time to time. As has been noticed by this Court, it was the duty of the Board to see that notices much reach to the employees upto grass root level since individual consent in positive terms was required to be obtained duly attested & certified by Head of Office/Department. In the facts & circumstances (supra), this Court is of the considered opinion that respondents have failed in discharge of their duty/obligation in giving wide publicity to those notices inviting options from employees to come over pensionary benefits under the scheme, 1988.
Once beneficial scheme (Pension & GPF Regulations, 1988) having come into force, employees were supposed to know while taking decision as asked for by the Board to disclose in positive terms that he did not want to opt for pension Scheme and to continue as member of CPF/EPF Scheme of which he was already a subscriber prior to the Pension & GPF Scheme having come into force w.e.f. 28/11/1988.
Further, a gazette notification has been placed before this Court alongwith reply filed by respondents to show that what more efforts was required when endeavour has been made by the Board to get notice published in the gazette, itself. It is really sorry to say that option notice dt.22/08/1995 by which respondent wants to give strength to their duty being discharged in giving wide publicity, as is evident from this notice dt.22/08/1995, it was published in official gazette dt.11/11/1999 (Ann.R/1-CWP-1731/2010) much after last date to submit option having expired on 30/06/1997 and even prior to publication whereof in official gazette dt.11/11/1999, the Board took final decision vide order dt.12/03/1999 to the effect that no such representation to exercise options to come over pensionary benefits will now be entertained as it would be a never ending exercise.
This Court also finds substance in the submissions made on behalf of petitioners that once decision was taken by Whole Time Members in the meeting held on 04/01/1995, it was atleast required to be placed before the Board for its ratification; but what has been averred by respondent is that it was never placed and approved by the Board. In the opinion of this Court, once Whole Time Members have taken decision in its meeting held on 04/01/1995 (quoted supra) which has been admitted by the respondents, it was the duty of the authority to place it before the Board being the authority in taking final decision as to whether resolution of Whole Time Members deserve ratification or not. But if there was no further process initiated pursuant to the resolution taken by Whole Time Members, mere taking decision thereafter providing further time to invite options from the employees to come over the pensionary benefits will not supersede the decision of Whole Time Members without there being express application of mind of the Board and it is also not the case of the respondents that after perusal of the minutes of the Whole Time Members, the Board took decision to grant further opportunity to the employees calling options to come over pension & GPF Scheme, 1988 and in the opinion of this Court, it was expected to be placed before the Board for ratification and by subsequent decision inviting options from the existing employees, the resolution of Whole Time members cannot stand superseded as averred by respondents. It will be relevant to record that in all such notices inviting options from RSEB employees, the decision was of the Chairman & Whole Time Member and it was subject to ratification by the Board and presumption can be drawn that extension of time granted pursuant to notices (supra) must have been ratified by the Board at a later stage but there appears no justification, why the decision of the Chairman & Whole Time Members dt.04/01/1995 was not placed for ratification by the Board.
This Court further finds substance in the submission made on behalf of petitioners that final decision was to be taken by the Board being competent authority and not by the Chairman or Secretary, as the case may be, which came to be communicated vide Order dt. 12/03/1999 holding that it would not be desirable to provide any more option to the employees as it would be a never ending exercise. No material ha been placed on record despite objection being raised by petitioners that the order came to be issued by the Secretary on 12/03/1999 and it was not the outcome of the Board’s decision which was the cause of litigation, in the absence whereof, such decision of the Secretary of the RSEB or Chairman, as the case may be, in their individual capacity, in the opinion of this Court, cannot hold good and such order/decision dt.12/03/1999 deserves to be quashed.
However, it is made clear that it is always open for the Board to take its decision at relevant point of time, but as observed (supra), Circulars & notices issued having not been given its due & wide publicity and not being notified to individual employees for taking their consent in writing, it remained an empty formality and in the opinion of this Court, sufficient opportunities have not been afforded to employees of the erstwhile RSEB in taking decision as to whether the employee wanted to continue with their existing CPF/EPF Scheme or to opt for Pension & GPF Scheme, 1988 having come into force w.e.f. 28/11/1988.
In additional affidavit filed by Shri ND Mishra, Dy. Controller of Accounts (P&F), RRVPNL, Jaipur in CWP-5940/2003 it has been stated that after unbundling of RSEB in July, 2000, the issue arising for switching over RSEB Pension & GPF Scheme, 1988 was placed thrice before the Co-ordination Committee in its 48th meeting held on 04/10/2002, 51st meeting held on 06/01/2003 & 67th meeting held on 19/02/2004 and took the decision ad infra:
“????? ?? ????? ???: ???? ???? ?? ?????? ?? ???? ???? ???????? ??????? ??? ?? ????? ??? ???? ??? ?????? ????? ?????? ?? ???? ?? ???? ???? ??? ? ?? ?? ?? ???? ??? ?? ??????? ???????? ?? ????????????? ???? ????? ????? ?? ????? ???? ???? ?”
It has been further stated in additional affidavit that presently the payment of pension is to the tune of Rs.132 Crores per annum and the contribution to the superannuation fund is Rs.55 Crores per annum and if the employees of RSEB are being afforded opportunity to opt for and become member of Pension Scheme, 1988, there will be additional financial burden besides burden after 6th Pay Commission report being adopted, as has been referred to in para 14 of additional affidavit of Shri ND Mishra. The underlined objection of respondents in not permitting to furnish option appears to be the additional financial burden to be parted with either by the Government or the Electricity Companies.
Once a positive declaration was required to be made by individual employee while filling up option form (Ann.A) appended to the notice dt.06/01/1989 after RSEB Pension/ GPF Scheme, 1988 came into force, to which he is otherwise entitled for, his right to seek option cannot be denied only on the premise that State Government or Electricity Companies claiming themselves to be the model employers have to meet out additional financial burden, if permission for submitting options at this stage is granted to the employees. But when it is looked from other side of the coin, the employees discharging duties & rendering services to the Institution, their reward in the form of Pension could not be denied to them which is otherwise their right to claim unless forbidden by law under the Pension/GPF Scheme, 1988.
The pension which the employee became entitled for, after Pension Scheme 1988 having come into force, is neither bounty or mater of grace depending upon sweat-will of the employer nor is ex-gratia payment. It is the reward for devoted services rendered and socio welfare measure rendering socio economic justice to those who in the heyday of their life ceaselessly toiled for the employer on the assurance that in their old age, they would not be left in the lurch.
That apart, on the date of presentation of the writ petitions, the petitioners were in service and it has been informed that few of them pendente petitions have retired and few of them have died and their legal representatives were brought on record. Be that as it may, they must be making their contribution as provided being member of CPF scheme and being in service are subscribers. However, there is provision under GPF Scheme, 1988 that after employee submits option and becomes members of GPF & Pension Schemes, 1988, all funds pertaining to the subscribers of the RSEB CPF who have opted for Employees GPF Scheme shall be transferred to the said Fund on its receipts from various sources while employer’s contribution along with interest shall be transferred to the RSEB superannuation fund.
Thus, apart from making cross entry in the Books of Accounts and adjustment of the funds of subscribers of RSEB CPF who opted for Pension/GPF Scheme, 1988, no further exercise is required to be undertaken and if the employee opts for pension Scheme, 1988 and that being considered to be financial burden upon State Government/Electricity Companies which appears to be root cause in constructing a Wall before them, such decision of so called model employer cannot be approved by this Court.
Submission made by Counsel for petitioner finds further strength that when surplus employees of other PSUs/Govt. Bodies absorbed/appointed after 28/11/1988 against direct recruitment quota vacancies as fresh appointees pursuant to Govt of Rajasthan (State Enterprises Department) guidelines and member of CPF Scheme in their parent organisation, they all have been permitted to become members of Pension/GPF schemes, 1988 having no lien in the department prior to entry into service in the office of respondents. At the same time, such of employees of erstwhile E & M Department & later on absorbed in erstwhile RSEB, were granted benefit of pension, may be after intervention of the Court. But ultimate fact remains that those who were employees of E & M department & absorbed in the erstwhile RSEB or such of employees of PSUs & absorbed in the erstwhile RSEB after 28/11/1988 were granted benefit of pension/GPF Scheme, 1988. There appears to be no justification as to why different standards are being adopted for those who are serving erstwhile RSEB from inception of their service & are now members of Electricity Companies after unbundling of the RSEB. In the opinion of this Court, there appears to be no justification for respondents in not permitting employees of erstwhile RSEB to submit their options, and no justifiable reason is forth coming to deprive the existing employee from their legitimate right to submit options under Pension/GPF Schemes, 1988.
Submission made by learned Senior Counsel appearing for the respondents that there was inordinate delay in filing writ petitions which dis-entitles from invoking discretionary jurisdiction of the Court U/Art. 226 of the Constitution, in the opinion of this Court does not hold good for obvious reason that indisputably, earlier writ petitioners have approached to this Court and their petitions came to be decided with the directions to submit representations and the authorities were called upon to decide the same in accordance with law and after their representations came to be rejected by the authorities vide communication dt.26/06/2008, delay, if any, cannot be attributed to writ petitioners. However, laches having caused pendente lis at least cannot be attributed to individual writ petitioner.
That apart, the rule which says that the Court may not inquire into belated or stale claims, is not a rule of law but a rule of practice based on sound & proper exercise of discretion and there is no inviolable rule that whenever there is delay the Court must refuse to entertain the petition and the question is one of discretion to be followed on the facts of each case. However, the Court may proceed in refusing grievance of petitioner on the ground of delay or laches, if any; and the delay in filing petition should not be allowed to disturb rights of third parties unless there was reasonable explanation for the delay.
However, in the instant case, no third party’s rights have conferred or accrued by reason of delay in the intervening period, in view thereof, what has been urged by respondents, is wholly without substance and deserves to be rejected.
Submission made by Counsel for the respondents while placing reliance on the series of judgments of Apex Court, that cut off date fixed by the Board which finally came to be 30/06/1997 cannot be considered to be arbitrary and it has reasonable nexus sought to be achieved, is wholly without substance for the reason that in Union of India Vs. PN Menon (supra), the Apex Court had occasion to examine that if the date has been introduced in making one entitlement to the benefits of the Scheme to those who are in service on the cut off date, thus came to the conclusion at a later stage, whether such date makes a distinction between two classes of employees amongst those who are considered to be valid classification in the given case.
But in the instant case, question for consideration is that after the Pension/GPF Scheme came into force on 28/11/1988 which indisputably makes present petitioners (being RSEB employees) entitled to become members of the Scheme, 1988 but option could not have been furnished, which has not been accepted by this Court, can that be considered to be reason to deny the right conferred upon employees to submit options when he is otherwise eligible to become member of Scheme, 1988 and cut off date is not the real question for being examined. There could be a cut off date where Scheme has been introduced for the persons who have superannuated from service, due to many constraints and it is not possible to extend the same benefits to one & all irrespective of the date of superannuation and if revised scheme regarding post retirement benefits is implemented with cut off date, its reason-ability can be examined but that is not the issue for consideration in the instant case.
Another judgment on which Counsel for respondents placed reliance in Krishena Kumar Vs. Union of India (1990(4) SCC 207) on the premise that ample opportunities have been afforded to submit option, which cannot be further extended by judicial intervention, is of no assistance for the reason that it was a case where Provident Fund Scheme was replaced in Year 1957 by the Pension Scheme that would provide posterior to this retirement certain monthly pension to each retired employee instead of making prior contribution to his provident fund; and the employees, who were already in the service on 01/04/1957 were given an option either to retain the PF benefits or to switch over to the pensionary benefits; and the fact is that all the times, 12 notices were issued while having given wide publicity and cut off date was anterior to the date of notification, and as a result, those who retired from service after cut off date (specified date) and before the notification were made eligible for exercising option despite the fact that they had already retired in the meantime and the writ petitions were filed much after the writ petitioners having retired from service and despite opportunity even after their retirement being afforded; and it was not the case that those notifications referred to in para 6 of the judgment were not made known to the individual employee who stood retired from service.
Here is the converse position where employees are still in service and options were never notified to each individual employee; and such notices were never given wide circulation and majority of employees are holding lowest post in the ladder in their respective cadre; and as observed (supra), they are working through out the State and at the places where there is no mode of communication and the authorities have failed in discharge of their duties in giving them proper notices for taking their independent decision as to whether one is wanted to continue in CPF Scheme to which he is member or to switch over the Pension Scheme, 1988 came into force w.e.f. 28/11/1988.
As regards judgment on which Senior Counsel for respondents placed reliance, in Union of India Vs. MK Sarkar (2010(2) SCC 59), it was a case where employee stood retired from service taking all benefits & having received dues under CPF Scheme and after 22 years of retirement, grievance was raised to switchover pension scheme, which was rejected by the Apex Court, hence this decision does not help in any manner to the respondents in instant case.
A number of incidences have been referred of individual petitioner that despite option form being submitted and sent through controlling authority but either it did not reach to the option accepting authority (Controller of Accounts (GPF) RSEB, Jaipur) or acknowledgment have not been obtained. When the employees are posted at different places, option form in the form of written consent was to be sent through controlling authority and some administrative decision has to be taken by the authority as to how option form submitted by individual could be brought to the office of Controller of Accounts who is final authority for the purposes so that inconvenience may not cause to individual employee and such kind of stray instances can be meted out which has also be kept in mind by the authority.
Before parting with the judgment, this Court would like to record that once a beneficial Pension/GPF Scheme, 1988 has been made effective and brought into force with an object of socio economic justice, it has to be made socially liberalized and to see that each employee being member of the service on the date of Pension/GPF Scheme, 1988 brought into force, must be provided with open opportunity in taking independent decision; as observed (supra), and his positive decision has to be obtained as to whether he did not want to opt for Pension/GPF Scheme,1988 and wants to continue with CPF Scheme of which he has already been a subscriber, and this being the basic object of Pension/GPF Scheme, 1988, this Court expects from the authority that it ought to have given a wide circulation either by publication in news paper or any other mode which may now be considered appropriate; but it may be kept in mind that it must get wide circulation/publication in the manner which may be deemed to be proper but view of the Court is that notice must reach to individual employee who are at grass root level posted in remote areas giving valuable services to the State and are completely unaware of beneficial Pension/ GPF Scheme, 1988 introduced for them.
In the net result, all the writ petitions succeed and are hereby allowed. Communication of rejection dt.26/06/2008 and Circular dt.12/03/1999 are quashed & set aside. All the RSEB existing employees covered under Reg.3(k) & 3(n) of Pension & GPF Regulations, 1988 including writ petitioners or their legal representatives who are interested to submit their options, are at liberty to exercise option as required to be furnished in the Form appended to (1) RSEB Employees Pension & (2) General Provident Fund Regulations, 1988 within reasonable time as considered by respondents to be appropriate and if such options are furnished, the respondents may take appropriate decision in accordance with law.
However, it is made clear that there is no need to file any other writ petition by any of existing employees covered under aforesaid Scheme, 1988 (supra), and the respondents are directed to afford opportunity to all similarly situated employees even if they have not approached this Court and if otherwise eligible may be granted permission to submit their respective options if inclined to become members of Pension/GPF Scheme, 1988. The procedure may be adopted in the light of observations made (supra). No costs.
(Ajay Rastogi), J.