Bina Srivastava vs The Rajasthan Agriculture University

Jaishree Thakur, J.—The present writ petition has been filed under Article 226 of the Constitution of India seeking a writ to allow the petitioner to opt for pension scheme and at the same time, holding Notification dated 17.8.1991 and circular dated 31.7.1996 as non-est.

The brief facts leading to the filing of the present writ are to be noticed. The petitioner was appointed in the respondent-University, namely, Rajasthan Agricultural University, Bikaner in May, 1998 and is to retire in the year 2020. On 17.8.1991 the Comptroller of the Rajasthan Agriculture University, Bikaner issued a Notification in pursuance of Government Order dated 6.6.1991 to allow implementation of a Pension Scheme for the employees of the respondent-University. As per this Notification, all employees who were in service on 1.1.1990 had to exercise an option either for continuing under the existing Contributory Provident Fund Scheme (the C.P.F. Scheme for short) or give their option for the Pension Scheme. The option was to be exercised in writing within three months from the date of said Notification. It was mentioned in the Notification that option once exercised would attain finality and would be irrevocable. The benefit of this option was also made available to the retired employees provided they were willing to refund their contributory provident fund benefits.

Within the time specified the petitioner exercised her option on 11.11.1991 to continue with the Contributory Provident Fund Scheme.

Thereafter various disputes arose between the teachers/employees of the University and the administration of the respondent- University. One of the demands was that the option form under the notification dated 17.8.1991 should be re-filled and those employees, who had already opted and exercised their option for the C.P.F. Scheme, should be allowed to switch over to the Pension Scheme. A settlement was arrived at between the management and the employees of the Union on 26.9.2000, wherein in principle it was agreed that the option form should be re-filled and the employees should be given an opportunity to opt for the Pension Scheme.

The petitioner who had opted for the C.P.F. scheme sought to change over to the Pension Scheme and sent several representations to the University to allow her to do so. A legal notice was also served upon the respondent on 18.1.2003 but no action was taken thereon. Aggrieved by the inaction of the University, the petitioner had no option but to file the present writ petition seeking to enforce the settlement arrived at between the employees and the administration of the University on 26.9.200.

The respondent University filed its reply taking the plea that the petitioner would not be entitled to change over to the pension scheme once an option had been exercised.

Mr. Kuldeep Mathur counsel for the petitioner has argued that the petitioner should be allowed to opt for the Pension Scheme as a settlement had been arrived at between the Employees Union and the administration of the university on 26.9.2000 wherein it had been decided that employees would be able to revise their option. It is contended that Maharana Pratap University for Agriculture and Technology, Udaipur (which came into being after bifurcation of Rajasthan Agriculture University) had also issued a Notification No. 22/25.1.2001 notifying the approval given by the Vice Chancellor to the existing employees allowing them to revise their option from the C.P.F. Scheme to the Pension Scheme. It is further contended that the petitioner, who is yet to retire, should be allowed to revise her option.

Mr. D.S. Rajvi counsel for the respondent has submitted that the Board of Management of the university vide its order dated 27.7.2005/1.8.2005 had declined to allow the employees who had already opted for the C.P.F. Scheme, to opt for the Pension Scheme. It is contended that the Government of Rajasthan had issued a Notification dated 6.6.1991 and as per this Notification, the employees were required to exercise their option in writing in the prescribed format, either to opt for Pension Scheme or to continue with the C.P.F. Scheme which was already in existence. In the said Notification, it was made clear that once an option had been exercised by the employees, that option would become final and irrevocable.

It is further contended that the settlement dated 26.9.2000 that was arrived at between the teachers and non-teaching staff of the University and the Registrar and Comptroller for allowing of option from the C.P.F. Scheme to Pension Scheme was never approved by the Board of Management of the University and thus, the alleged settlement had no validity. That the Board of Management of the University had declined to accept the said recommendations forwarded.

Counsel for the respondent has argued that this matter already stands settled by the Supreme Court in a case reported as Rajasthan Agriculture University, Bikaner Vs. State of Rajasthan and Others, . In that case, the respondent was in employment of the Rajasthan Agriculture University, Bikaner, who opted for benefit under the Contributory Provident Fund Scheme. Unfortunately, the respondent did not intimate his option within the prescribed period, but by his letter dated 3.1.1992, he opted for the C.P.F. Scheme. After retirement, he was paid his dues as per the C.P.F. Scheme. The respondent-employee made a grievance that as he had not exercised his option within the prescribed period from the date of Notification dated 17.8.1991, and he should have been deemed to have opted for the Pension Scheme and, therefore, he should be paid as per the Pension Scheme. The request was not accepted by the University as he had accepted the option of the C.P.F. Scheme exercised by him even though after a period of three months. Aggrieved by the action of the University not paying pension to him, a writ petition was filed in the High Court and the said writ petition was allowed. Against the said decision of the Single Bench, appellant-University filed D.B. Civil Special Appeal, which upheld the decision of the Single Bench directing the University to give pension to the respondent if he had opted for the Pension Scheme. Aggrieved against the said decision of the Division Bench, the respondent-University preferred Special Leave Petition before the Hon''ble Supreme Court submitting that once a person had opted for the C.P.F. Scheme, it was not open to the respondent-employee to change his stand and ask for pension as if he had opted for the Pension Scheme. The Hon''ble Supreme Court held that once an employee had exercised his option for continuing to be in the C.P.F. Scheme, he would not be allowed to change his option. Counsel for the respondent has also relied upon a judgment reported as Union of India (UOI) and Others Vs. M.K. Sarkar, , to contend that when a scheme stipulates that benefit therein will be available to those who exercised the option within the specified time, there can be no occasion to allow a person to exercise an option of revising and changing to another scheme.

I have heard the arguments of the parties and perused the record of the case.

The respondent-University vide Notification dated 17.8.1991 decided to implement the Pension Scheme for the employees of the Rajasthan Agricultural University. As per the Notification, "all the employees who were in service on 1.1.1990 were to exercise their option in writing, either for the pension scheme under these regulations or for the continuation under the existing C.P.F. Scheme, within three 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."

The petitioner exercised her option and opted to continue with the C.P.F. Scheme. A conscious decision was taken by the petitioner at that point in time and being a literate person knew the consequences of having opted for the C.P.F. Scheme. It would be unfair if at this juncture, the petitioner is allowed to revise an option exercised by her. It has to be noted that the settlement arrived at between the employees of the University and the Management on 26.9.2000, does not have any binding force since it is the Board of Management which had to accord its approval to the settlement arrived at. The Board of Management had deliberated upon the matter and taken a conscious decision on 1.8.2005 not to allow the employees who had already opted for the C.P.F. Scheme to revise their option and to opt for the Pension Scheme. It may be noted that this decision has not been challenged in the present writ petition. The challenge in the present writ petition is to allow the settlement that has taken place on 26.9.2000 to come into force. Since this settlement was never ratified or given final approval by the Board, the settlement has no effect in the eyes of law. Thus, the petitioner can lay no claim to any benefit under the said settlement.

The argument of the learned counsel for the petitioner that other institutions had allowed their employees to revise their option, was also considered in the judgment rendered by the Hon''ble Supreme Court in Rajasthan Agriculture University, Bikaner and Ors. v. State of Rajasthan and Ors. Supra. The said contention was rejected holding that each employer-University would have its own scheme with regard to payment of retiral benefits to its employees.

The argument raised that Rajasthan Agriculture University, Bikaner and Ors. v. State of Rajasthan and Ors. Supra cited by the respondent shall have no bearing on the facts of the present case since that matter pertained to an employee who had retired and since the petitioner was in service, a distinction should be drawn between the two. This argument is not sustainable since the notification was made applicable to both sets of employees. The Notification dated 17.8.1991 mandated that option once exercised would be final and irrevocable. Thus, the case law relied upon by the respondent-University are fully applicable to the case in hand.

Thus, keeping in view the fact that the petitioner had already exercised her option for getting benefit under the C.P.F. scheme consciously can not be permitted to shift over to the Pension Scheme. Admittedly, the settlement dated 26.9.2000 on the basis of which the entire writ petition has been based, was only a proposal and the same was never approved of or adopted by the Board of Management of the University and as such has no legal force.

The writ petition being devoid of merit, is dismissed as such. No order as to costs.