Davinder Singh and Others vs State of Punjab and Another

K. Kannan, J.—The petitioners, while still in service, sought for judicial intervention by filing writ petition in the year 2003 complaining of the refusal of the respondents to admit the petitioners to a pension scheme which had been notified on 28.07.1994. The petitioners contention has that the exclusion of the pension rules was only to such class persons who had opted out of these rules and they had not expressed such an option out of the scheme.

The contention on behalf of the local bodies is that the notification had been made on 28.07.1994 and the exercise of option was specifically provided for in Clause-III requiring an employee to exercise the option in the form appended to the rules within a period of four months from the date of publication of the rules subject to the certain exceptions as regards certain class persons who were on leave or under suspension or when they had been dead within the stipulated period.

The learned Counsel for the petitioners contends that specific case was that they were not aware of the pension rules to respond to exercise such an option within a period of four months and since they came to know about the said rules, they had made their options to join the scheme but they refused only on the ground that such options were not exercised within a period of four months. The learned Counsel appearing for the petitioners refers to a decision of the Hon''ble Supreme Court in Dakshin Haryana Bijli Vitran Nigam and Others Vs. Bachan Singh, , where the court was considering the issue of the counting of the period of an employee on work charge basis when he was subsequently regularized as well as the issue of the effect of a person not exercising an option within a particular period. Referring to a clause under the scheme that the provisions of the scheme were particularly to be brought to the notice of the concerned employees, the Hon''ble Supreme Court held that it would be unreasonable and irrational to deny the employees the pensionary benefits when the Nigam failed to produce any record showing that the instructions that specifically provided for getting them noted in writing had indeed been apprised and in the absence of such material, the Hon''ble Supreme Court made an inference that they had no knowledge about the option called for from the persons.

The counsel for the State and of Municipal Corporation would join issue that there had been no specific instructions requiring the claim to be noted from each and every employee. The scheme merely provided for an exercise of an option within a period of four months from the date of notification and admittedly, the petitioners had not exercised the option within that period. Learned Counsel appearing for the Corporation relies on a judgment of the Hon''ble Supreme Court in Union of India (UOI) and Others Vs. M.K. Sarkar, to support his contention. In this case, the Hon''ble Supreme Court, while rejecting a claim for pension of persons who did not exercise the option within a specified time, dealt with the situation of the claim by persons who are making that option 22 years after retirement. The Hon''ble Court also considered the effect of permitting persons to secure double benefits of both provident fund scheme as well as pension scheme and found that such situation would be unjust and impermissible.

In my view, Hon''ble Supreme Court in Union of India and Ors. v. M.K. Sarkar (supra) was not laying down a general proposition that if an option is not exercised within a particular time, it could not be done at all. The case must be rooted on the specific facts of an extra-ordinary delay of 22 years and the possible claim of double benefit which the petitioners therein had claimed. In this case all but out of the petitioners were still in service at the time when the writ petitions were filed. Learned Counsel for the petitioner also points out that this petitioner himself joined along with others who filed CWP No. 71868 of 2002 when they were all in service when this Hon''ble Court had merely directed the respondents to pass a speaking order. By that time when the present writ petition was filed, one of them had been superannuated. The ends of justice would be best to meet to ensure that no double benefit obtains to the petitioners. The petitioners shall refund the amounts that have received from contributory provident fund with simple interest at the rate of 9% p.a., when the respondents admit the petitioners to the pension scheme. They shall also give undertaking that they will make any contribution that the scheme stipulates as payale towards the employee''s contribution. The amount shall be calculated by the respondents and informed to the petitioners giving a period not less than four weeks for making the payment and on such payment, the petitioner shall be entitled to the payment of pension arrears. The arrears of pension shall be made with simple interest at the rate of 9% per annum.

The writ petition is allowed.

There shall, however, be no direction as to costs.