{"id":40027,"date":"2010-09-27T00:00:00","date_gmt":"2010-09-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/purna-chandra-das-vs-unknown-on-27-september-2010"},"modified":"2018-06-24T12:22:29","modified_gmt":"2018-06-24T06:52:29","slug":"purna-chandra-das-vs-unknown-on-27-september-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/purna-chandra-das-vs-unknown-on-27-september-2010","title":{"rendered":"Purna Chandra Das vs Unknown on 27 September, 2010"},"content":{"rendered":"
Orissa High Court<\/div>\n
Purna Chandra Das vs Unknown on 27 September, 2010<\/div>\n
                                    S.K. MISHRA, J.\n<\/pre>\n
                  W.P.(C) NO.8702 OF 2008 (Decided on 27.09.2010)
\nPURNA CHANDRA DAS                             ………..               Petitioner.\n<\/p>\n
                                    .Vrs.\n<\/p>\n
THE BOARD OF GOVERNORS & ANR. ………..                             Opp.Parties.\n<\/p>\n
CONSTITUTION OF INDIA, 1950 – ART.226.\n<\/p>\n
    For Petitioner – Mr.Bibhuti Kumar Biswal
\n    For Opp.Parties – Sri P.Pattnaik & J.Mohanty.\n<\/p>\n
S.K. MISHRA, J.       Heard\n<\/p>\n
2.          Petitioner seeks direction of the Court to convert his C.P.F. account to
\nG.P.F.\/Pension scheme.\n<\/p>\n
            Petitioner is an ex-serviceman. After his retirement from Indian Army, he
\ncompeted the test and was appointed as Nursing Assistant\/Compounder w.e.f.
\n01.08.1990 in the Sainik School, Bhubaneswar. At the time there was no pension
\nscheme for Sainik School employees, and they were on CPF (Contributory Provident
\nFund) scheme. However, in pursuance of the order of the Hon’ble Apex Court, the
\nemployees of Sainik Schools became eligible to get pension w.e.f. 01.04.1988 to on
\nthe pattern of the Central Government Pension Scheme as provided under the Central
\nCivil Service (Pension) Rules, 1972. Accordingly, the opposite party no.1, as per letter
\ndated 08.02.1989 (Annexure-2) issued clarification regarding the extension of pension
\nscheme to Sainik School employees.\n<\/p>\n
        Petitioner claimed that in the said letter it was stipulated that ex-servicemen re-
\nemployed in the Sainik Schools and who are drawing pension from the Central
\nGovernment, will not be granted pension for their service in Sainik Schools. These
\nemployees, however, continued to enjoy the benefit of the existing C.P.F. It was further
\nstipulated in the said letter that the employees who were in service on 01.04.1988 may
\nbe allowed to exercise their option in the prescribed pro forma by 28.02.1989 either for
\ncontinuing in the existing CPF scheme or to switch over to pension scheme.\n<\/p>\n
        Petitioner further pleaded that as per the provisions of CCS Pension Rules,
\n1972, an ex-serviceman re-employed with the Central Government is eligible to get
\nsecond pension on superannuation. The Sainik Schools employees became eligible to
\nget pension from 01.04.1988. Hence, the ex-servicemen re-employed in the Sainik
\nSchools on superannuation shall get pension w.e.f 01.04.1988. But, it was wrongly
\nmentioned in paragraph 1.2 (c) of the letter of the opposite party no.1 under Annexure-2
\nthat the ex-servicemen re-employed in Sainik Schools are not eligible to get pension
\nand they continued to enjoy the benefit of C.P.F. scheme. Subsequently, the opposite
\nparty no.1 came to know the illegality\/wrong and rectified the same. The Board of
\nGovernor (BOG), vide its circular no. P.C.37(4)\/92\/SSC dated 14.09.1992 had
\nspecifically deleted the stipulation contained in para 1.2 (c) of the BOG circular
\nno.P.C.10(4)\/87\/SSC dated 08.02.1989, Annexure-2, wherein pension\/GPF scheme
\nwas denied to ex-servicemen. The said position stood clarified by the opposite party
\nno.1 vide its letter dated 11.12.1992 (Annexure-3).\n<\/p>\n
                                               2<\/span><\/p>\n
3.      Thus, after deletion of the restriction as aforesaid prescribed the ex-servicemen
\nre-employed in the Sainik Schools became entitled to get pension and GPF w.e.f.
\n01.04.1988. As per para-3 of Annexure-2, they were allowed to exercise their option in
\nthe prescribed pro forma in 1989 either for continuing with the existing C.P.F. scheme or
\nto switch over to pension scheme along with G.P.F. As regards the employees, who
\nwere employed on or after 01.04.1988, were to be governed by the pension and G.P.F.
\nscheme. It is further pleaded by the petitioner that since he was appointed in the year
\n1990, he would be governed by the pension and G.P.F. scheme but the opposite party
\nno.2 most illegally and without application of mind had kept the petitioner under the
\nC.P.F. scheme.\n<\/p>\n
4.      The circular issued by the BOG were not circulated among the employees by the
\nopposite parties. Hence, the petitioner could not know about his entitlement to pension
\nand GPF scheme. He came to know later on and immediately on 31.07.1995 he made
\nrepresentation to the opposite party no.2 requesting him to change his CPF account to
\nG.P.F. scheme. Thereafter, he made several representations to opposite party no.2 in
\nthis respect. The last representation was given on 11.12.2006. All his representations
\nremained unheard at the level of the opposite party no.2. Thereafter, he made
\nrepresentation to opposite party no.1 on 20.07.2008. But no action has been taken as
\nyet on the same.\n<\/p>\n
5.      It is contended by the petitioner that he will suffer financial loss after retirement.
\nHe contends that since he joined in the Sainik School on 01.08.1990, no option is
\nrequired to be exercised by him. It is the duty of the opposite parties to invite option but
\nno option has been invited from the petitioner by the opposite parties in any manner
\nwhatsoever. He contends that his employment in the Sainik School is governed under
\nRule-19 of the C.C.S. Pension Rules, 1972. It is submitted that he has already retired in
\nthe year 2010. Finding no other speedy and efficacious remedy he filed this writ petition
\nwith the aforesaid prayer.\n<\/p>\n
6.      The opposite party no.2 filed counter affidavit, inter alia, pleading that there are
\ntwo categories of employees working in the establishment, viz., i. Ex-serviceman re-
\nemployed in the Sainik School, and ii Civilians. Before implementation of pension\/GPF
\nscheme all were governed by the CPF scheme. The Sainik School Society Rules and
\nRegulations at clause 6.13 provide that employees of the Sainik Schools shall be
\nentitled to benefits of pension\/CPF, family pension, Dearness Relief on pension\/Death-
\ncum-retirement Gratuity\/GPF, LTC etc. on the same pattern as admissible to Central
\nGovernment employees. The CCS Rules, 1972 prescribes the manner and conditions
\nfor grant of pension to the ex-servicemen re-employed in civil post after rendering
\nqualifying services in military and in receipt of pension from and out of the retirement
\nfrom the military services. Therefore, pension\/GPF scheme for the employees of the
\nSainik School when made applicable w.e.f. 01.04.1988 necessity to comply the
\ncondition prescribed in CCS Rules arose. So far as the ex-servicemen are concerned,
\nexercise of option to accept one scheme, i.e. CPF or GPF was inevitable as the
\ncondition precedent to admit an ex-serviceman to 2nd and civil pension scheme to
\ncomply Rule-19 of CCS Pension Rules, 1972. Therefore, the exercise of option by the
\nex-serviceman is indispensable.\n<\/p>\n
        The petitioner being an ex-serviceman has received gratuity and receiving
\npension out of the previous military employment. Although he joined in the year 1990
\nbut being an ex-serviceman he was to choose whether to continue with CPF or to GPF.
\nBy the time he was appointed although Pension\/GPF was implemented. However, it
\n                                               3<\/span><\/p>\n
was limited to the civil employees. Therefore, the Sainik School Society being an
\nindependent body not to extend the benefit to the ex-servicemen as such in view of the
\nPURNA CHANDRA DAS -V- BOARD OF GOVERNORS                    [S.K. MISHRA, J.]<\/p>\n
notification dated 08.02.1989, the ex-servicemen were excluded from the scheme and
\ncontinued under the existing CPF scheme as such no option was asked. The petitioner
\nafter his joining also did not agitate the matter and accepted the CPF scheme by then
\noperative.\n<\/p>\n
7.      The BOG as per circulated dated 11.12.1992 (Annexure-3) lifted the restriction
\ncontained in 1.2(c) of the circulated dated 08.02.1989 (Annexure-3) in respect of
\npensionery benefit to the ex-servicemen. Therefore, in due official process exercise of
\noption was invited from the employees of the School, who were ex-servicemen. The
\npetitioner being aware of the fact did not exercise his option for change of his pension
\nscheme within the period allowed in the Sainik School Society. The opposite parties
\nfurther pleaded that petitioner being aware of the said notification never opted for
\nchange of pension scheme as per the stipulation of the circular, and therefore, he is not
\nentitled to switch over from CPF to GPF scheme.\n<\/p>\n
8.      The opposite parties further pleaded that the petitioner’s representation dated
\n31.07.1995 was replied by the School on 19.08.1995. In response to the letter dated
\n20.07.2007 to the Honorary Secretary, he was appraised about the standing instruction.
\nThe opposite parties claimed that the petitioner should not be allowed to blame them for
\nhis own laches and omissions, and therefore, they prayed to dismiss the writ petition.\n<\/p>\n
9.      The petitioner filed a rejoinder to the counter affidavit filed by the opposite
\nparties and the opposite parties have also filed an additional counter affidavit. The
\nparties further illustrated the pleas already taken by them in the writ petition as well as in
\nthe counter affidavit.\n<\/p>\n
10.     In course of hearing, learned counsel for the petitioner submitted that since he
\nwas appointed on 01.08.1990 as an ex-serviceman employee of the Sainik School
\nbecame eligible to get pension w.e.f. 01.04.1988, it was not his duty to prefer an option.
\nRather, it was duty of the employer to offer him the said option. Since he made several
\nrepresentations which have gone unheeded, this writ petition has been filed well in time.
\nLearned counsel for the opposite party no.2, on the other hand, contended that as per
\nthe standing order, it was the duty of the petitioner to exercise option on or before
\n28.02.1989 regarding his choice of CPF\/GPF scheme. He having not done so, the writ
\npetition has filed at a very belated stage, after about 15 years and the same is devoid of
\nany merit.\n<\/p>\n
11.     The Hon’ble Supreme Court in All India Sainik Schools Employees
\nAssociation Versus The Defence Minister-cum-Chairman, Board of Governors,
\nSainik School Society, New Delhi and others, AIR 1989 SC page 88 has held that
\nthe Sainik School Employees are not treated as Central Government employees. Thus,
\nthe CCS Rules, 1972 is not applicable to the employees of the Sainik Schools.
\nHowever, for the purpose of consideration of the argument advanced by the learned
\ncounsel for the petitioner it is appropriate to take note of Rules-19 of the C.C.S.
\n(Pension) Rules 1972. It reads as follows:\n<\/p>\n
   “19. Counting of military service rendered before civil           employment
\n            (1) A Government servant who is re-employed in a civil service or post
\n       before attaining the age of superannuation and who, before such re-\n<\/p>\n
                                                 4<\/span><\/p>\n
       employment, had rendered military service,          may, on his confirmation in a civil
\n       service or post, opt either –\n<\/p>\n
       (a)    to continue to draw the military pension or retain gratuity received on
\n       discharge from military service, in which case his former military services shall
\n       not count as qualifying service; or\n<\/p>\n
       (b)     to cease to draw his pension andrefund –\n<\/p>\n
       (i)     the pension already drawn, and\n       (ii)    the value received for the commutation of a part of military pension, and\n<\/pre>\n
       (iii)   the amount of [retirement gratuity] including service gratuity, if any,
\n       and count previous military service as qualifying service, in which case the
\n       service so allowed to count shall be restricted to a service within or outside the
\n       employee’s unit or department in India or elsewhere which is paid from the
\n       Consolidated Fund of India or for which pensionary contribution has been
\n       received by the Government:\n<\/p>\n
Provided that –\n<\/p>\n
   (i) the pension drawn prior to the date of re-employment shall not be required to be
\n         refunded,\n<\/p>\n
   (ii) the element of pension which was ignored for fixation of his pay including the
\n         element of pension which was not taken into account for fixation of pay on re-
\n         employment shall be refunded by him.\n<\/p>\n
   (iii) The element of pension equivalent of gratuity including the element of commuted
\n         part of pension, if any, which was taken into account for fixation of pay shall be
\n         set off against the amount of retirement gratuity and the commuted value of
\n         pension and the balance, if any, shall be refunded by him.\n<\/p>\n
       EXAPLANATION – In this clause, the expression ‘which was taken into account’
\n       means the amount of pension including the pension equivalent of gratuity by
\n       which the pay of the Government servant was reduced on initial re-employment,
\n       and the expression ‘which was not taken into account’ shall be construed
\n       accordingly.\n<\/p>\n
  (2) (a)      The authority issuing the order of substantive appointment to a civil service
\n               or post as is referred to in sub-rule (1) shall along with such order require in
\n               writing the Government servant to exercise the option under that sub-rule
\n               within three months of date of issue of such order, if he is on leave on that
\n               day, within three months of his return from leave, whichever is later and
\n               also bring to his notice the provisions of Clause (b).\n<\/p>\n
       (b) If no option is exercised within the period referred to in Clause (a), the
\n           Government servant shall be deemed to have opted for Clause (a) of sub-
\n           rule (1).\n<\/p>\n
   (3) (a)     A Government servant, who opts for Clause (b) or sub-rule (1) shall be
\n               required to refund the pension, bonus or gratuity received in respect of his
\n               earlier military service, in monthly instalments not exceeding thirty-six in
\n                                                5<\/span><\/p>\n
              number, the first instalment beginning from the month following the month
\n              in which he exercised the option.\n<\/p>\n
   (b)        The right to count previous service as qualifying service shall not revive
\n              until the whole amount has been refunded.\n<\/p>\n
          (4)    In the case of a Government servant, who, having elected to refund the
\n         pension, bonus or gratuity, dies before the entire amount is refunded, the
\n         unrefunded amount of pension or gratuity shall be adjusted against the [death
\n         gratuity] which may become payable to his family.\n<\/p>\n
         (5)     When an order is passed under this rule allowing           previous military
\n         service to count as part of the service qualifying for civil pension, the order shall
\n         be deemed to include the condonation of interruption in service, if any, in the
\n         military service and between the military and civil services.”\n<\/p>\n
12.     From the above rule, it is crystal clear that the ex-servicemen being re-employed
\nin a civil service or post before attaining the age of superannuation may on his
\nconfirmation in the civil service or post opt to continue to draw the military pension or
\nretain gratuity received or to refund the pension already drawn along with value received
\nfor the commutation any part of military pension and the retirement gratuity. If he opts
\nfor the first option, then his services in the military pension shall not be taken into
\nconsideration along with the civil employment for the purpose of calculating the pension.
\nHowever, if he opts for the second option, then he is to refund the benefit received from
\nthe military services. This Rule, though strictly not applicable to the employees of the
\nSainik Schools, illustrates the duty cast on the ex-serviceman is concerned regarding
\nexercise of an option either to continue the military pension or to add the services
\nrendered in the          qualifying service of the civil service or post. Similar situation is
\nfound in this case also.\n<\/p>\n
13.       As per Annexure-2, i.e. notification issued on 08.02.1989 the ex-servicemen,
\nwho were re-employed in Sainik Schools and who were drawing pension from the
\nCentral Government were excluded from the pension\/GPF scheme. However, they were
\nto continue to enjoy the benefit of the existing CPF scheme. This clause namely 1.2(c)
\nwas deleted by paragraph-3 of Annexure-3, i.e. notification dated 11.12.1992, thereby
\nmaking the ex-servicemen, who joins employment with the Sainik School to
\nGPF\/Pension scheme. However, there is a rider, in the sense that, they had to exercise
\nan option for being governed by either one of two schemes. It is profitable to take note
\nof the exact words of the relevant paragraph of the notification, Annexure-3. It reads as
\nfollows:-\n<\/p>\n
         “4. In view of the above, an opportunity is hereby given to the ex-servicemen re-
\n         employed in Sainik Schools who are serving or who have retired after 1\/4\/1988
\n         to opt for Pension\/GPF scheme in lieu of the CPF scheme. This option must be
\n         exercised by 28 February 1993. In case no such option is exercised by this date
\n         it will be presumed that they have opted to continue the CPF scheme.”<\/p><\/blockquote>\n
         In interpreting this clause the learned counsel for the petitioner submitted that
\nhe has been appointed after 01.04.1988 and therefore there is no choice but to grant
\nhim the GPF\/Pension scheme. Such interpretation of the clause is against the natural
\nmeaning of the clause. This paragraph only means any person, who is still in service
\n                                                 6<\/span><\/p>\n
(i.e. on 11.12.1992, the date of notification) or who has retired after 01.04.1988 has to
\ngive an option before 28.02.1993. This option is necessary because there is also an
\nancillary aspect of refund of the pension and gratuity received from the military, as is
\nseen from the Rule-19 of the C.C.S. (Pension) Rules, 1972. Petitioner can not be given
\ndouble benefits, in the sense that, he was received pension as well as gratuity from the
\nCentral Government and shall be given the pension and GPF for his employment under
\nthe Sainik School. Thus, the petitioner has to exercise his option in this regard. He
\ncannot receive the benefits from both the accounts.\n<\/p>\n
14.       Another aspect, which arises in this case, is that the last date of exercising
\noption was 28.02.1989. The petitioner, however, did not exercise his option. In 1995, he
\nmade a representation. His representation was rejected. He slept over the matter and
\nonly in the year 2008 filed this writ petition. It is clear that the writ petition has been filed
\nthirteen years after cause of action arose. In Virender Choudhury Vs. Bharat
\nPatroleum Corporation and others, 2009(1) CLR(SC) 294, the Hon’ble Apex Court
\nhas held that though there is no period of limitation provided for filing a writ petition, it
\nshould be filed within a reasonable time. The discretionary jurisdiction under Article 226
\nof the Constitution of India need not be exercised if the writ petitioner is guilty of laches.
\nThe said ratio is squarely applicable to this case.\n<\/p>\n
        Thus, in view of the above, this Court is not inclined to grant relief prayed for by
\nthe petitioner and hence, the writ petition is dismissed as devoid of any merit. No costs.\n<\/p>\n
                                                       Writ petition dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Orissa High Court Purna Chandra Das vs Unknown on 27 September, 2010 S.K. MISHRA, J. W.P.(C) NO.8702 OF 2008 (Decided on 27.09.2010) PURNA CHANDRA DAS ……….. Petitioner. .Vrs. THE BOARD OF GOVERNORS & ANR. ……….. Opp.Parties. CONSTITUTION OF INDIA, 1950 – ART.226. For Petitioner – Mr.Bibhuti Kumar Biswal For Opp.Parties – Sri P.Pattnaik & J.Mohanty. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,25],"tags":[],"class_list":["post-40027","post","type-post","status-publish","format-standard","hentry","category-high-court","category-orissa-high-court"],"yoast_head":"\nPurna Chandra Das vs Unknown on 27 September, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/purna-chandra-das-vs-unknown-on-27-september-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Purna Chandra Das vs Unknown on 27 September, 2010 - 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