Radhey Shyam Kumawat vs Rajasthan Housing Board

Veerendra Singh Siradhana, J.—Aggrieved of the communication dated 23rd February, 2008; declining the prayer of the petitioner to change over the Pension Scheme; in view of the option exercised by the petitioner for Contributory Provident Fund Scheme (hereinafter referred to as ''CPF Scheme'', for short); the petitioner has approached this Court praying for the following relief(s):-

It is, therefore, humbly prayed:

(i) By an appropriate writ, order or direction, the Hon''ble Court may please to quash and set aside the impugned Order dated 23/02/08 (Annexure-3) with all consequential benefits and the Respondents be directed to allow the petitioner to change his option from CPF to Pensionary benefits and the respondents be further directed to grant pension and pensionary benefits to the petitioner according to his option with retrospective effect with all consequential benefits in view of Order dated 19/12/1997.

(ii) Any other appropriate order which may be considered just and proper in the facts and circumstances of the case may also be passed in favour of the petitioner.

(iii) Cost of this writ petition as well as legal expenses may also be awarded in favour of the petitioner.

Shorn off unnecessary details, the indispensable essential material facts necessary for appreciation of the controversy are: that the petitioner was initially appointed on the post of Personal Assistant (P.A.) and on 20th April, 1977. He joined the services of the Rajasthan Housing Board constituted under the Rajasthan Housing Board Act, 1970 and retired on attaining the age of superannuation from the post of Principal Private Secretary on 30th April, 1996. It is pleaded case of the petitioner that being ignorant of the consequences and implications, he inadvertently opted for CPF Scheme. Since the Rajasthan Housing Board subsequently has taken a decision in it''s 176th meeting held on 13th August, 1997 vide order dated 19th December, 1997, to include the employees of the Rajasthan Housing Board under the Pension Scheme instead of CPF Scheme; the petitioner addressed a representation to the Chairman, Rajasthan Housing Board, with a request to allow him to opt for Pension Scheme. The petitioner also offered for surrender/deposit of the amount of CPF, with interest, to the Rajasthan Housing Board since he realized that Pension Scheme would be beneficial. In response to the representation vide communication dated 23rd February, 2008, the petitioner has been informed of the decision by the Rajasthan Housing Board declining his prayer. Further, the benefits of CPF Scheme have already been accorded to him at the time of his retirement, according to his option exercised and rules did not permit for any change of option to switch over the Pension Scheme once the petitioner having exercised the option to continue under the CPF Scheme. The petitioner addressed yet another representation dated 17th March, 2008 followed by a notice for demand of justice through Counsel on 14th April, 2008.

In response to the notice of the writ application, the respondents have filed their counter-affidavit repelling the contents of the writ application and pleading that in fact, the Rajasthan Housing Board in it''s 163rd meeting held on 19th April, 1993 decided to enforce the Rajasthan Housing Board Employees Pension Regulations, 1992 (hereinafter referred to as the ''Regulations of 1992'', for short), with effect from 1st January, 1993. The employees, who were members of CPF Scheme, were called upon to submit options vide order dated 13th May, 1994, in the prescribed proforma within 90 days from the date of office order dated 13th May, 1994. The office order dated 13th May, 1994 (Annexure-R/1) further made a stipulation to the effect that any employee who did not submit his option within the stipulated period, his option will be deemed for the Pension Scheme. Furthermore, the option submitted once shall be final and no change whatsoever, in the option exercised shall be allowed thereafter. It is an admitted fact that the petitioner did submit his option in the prescribed proforma within the stipulated period, opting for continuance under the CPF Scheme, and retired from the service on attaining the age of superannuation on 30th April, 1996, having received the amount of Contributory Provident Fund without any objection or demur. It is further pleaded that in 176th meeting of the Rajasthan Housing Board on 13th August, 1997, it was decided to apply Pension Scheme to all the employees (including work charged) of the Rajasthan Housing Board instead of GPF Scheme and therefore, the pleaded facts and submissions made on behalf of the petitioner to the effect that the Pension Scheme was introduced subsequently, are absolutely misconceived and misleading. The respondents have also alleged suppression of material facts by the petitioner for not placing on record the communication dated 27th April, 2007, informing the petitioner, in response to his representation, of release of the benefits under the GPF Scheme at the time of his superannuation as well as of determination with reference to his request to change his option, to switch over to Pension Scheme, which was not permissible.

The learned counsel for the petitioner reiterating the contents of the writ application has vehemently argued that the petitioner being ignorant of the consequences and implications, submitted his option inadvertently exercising for continuance under the CPF Scheme. Later-on, having realized that the Pension Scheme is much more beneficial, he represented to the respondents with a prayer to allow him to switch over to Pension Scheme and also offered to surrender/deposit the entire amount of CPF Scheme, released to him at the time of his superannuation; which has been declined by the respondents in an arbitrary and illegal manner. The learned counsel would further submit that the petitioner is entitled for pensionary benefits under the Regulations of 1992 as well as in view of the decision taken by the Rajasthan Housing Board in it''s 176th meeting held on 13th August, 1997. Further, there was no restriction imposed by the Rajasthan Housing Board, with reference to admissibility of the benefits to the employees, who retired before the issuance of the order dated 19th December, 1997. It is further contended that the Regulations of 1992 imposes no restriction on the change of option as well, for switching over to Pension Scheme and the respondents are under an obligation to allow an opportunity to the petitioner for change of his option to switch over to Pension Scheme. Moreover, the Rajasthan Housing Board has power to relax the provisions of the Regulations of 1992, in hard cases as an exception.

Per contra; the learned counsel for the respondents, Mr. Parag Rastogi, repelling the pleaded facts of the writ application and submissions made by the learned counsel for the petitioner, forcefully argued that the writ application, preferred in the year 2008 with reference to a claim, if any, which dates back to the year 1994, suffers with the vice of the delay and laches and therefore, merits rejection on that count alone. The learned counsel would further submit that the petitioner submitted his option in response to office order dated 13th May, 1994, within the stipulated period of 90 days, opting for, in unequivocal terms, to continue under the CPF Scheme. The request as submitted in the option, had been accepted and acted upon by releasing the amount payable, under the CPF Scheme, to the petitioner, at the time of his superannuation in the year 1996. Therefore, it is not open for the petitioner to change his stand and ask for pensionary benefits after having opted for GPF Scheme. Moreover, the petitioner having received the monitory benefits in the year 1996, realized the alleged consequences and implications of the option submitted in the year 1994; only in the year 2007 and the writ application moved in the year 2008 i.e., after almost 12 years.

The learned counsel invited the attention of this Court to the office order dated 13th May, 1994, and pointed out that the option submitted by the petitioner in response thereof, within the stipulated period of 90 days, cannot now be permitted to ask for any change in the option, more particularly in the face of the fact that the petitioner having retired in the year 1996, attaining the age of superannuation, and having accepted the monetary benefits under the CPF Scheme.

According to the learned counsel for the respondents, the instant case at hand is not one where no option was exercised by the petitioner. The petitioner having exercised his option in response to the office order dated 13th May, 1994, which contained a specific stipulation to the effect that the option once exercised shall be final in all conditions and no change would be permitted thereafter, cannot now, after having received all the monetary benefits in the year 1996 at the time of his retirement, take a U-Turn and ask for an opportunity to alter/change the option so as to switch over to Pension Scheme. The two Schemes operate entirely in different field. In support of his submissions, the learned counsel has relied upon the opinion of the Hon''ble Supreme Court in the case of Union of India (UOI) through the Secretary, National Council of Educational Research and Training Vs. Shyam Babu Maheshwari,

I have heard the learned counsel for the parties and with their assistance perused the materials available on record.

It is not in dispute that the petitioner did exercise his option in response to the office order dated 13th May, 1994 (Annexure-R/1), which specifically contained a stipulation to the effect that the option once exercised within the stipulated period of 90 days, shall be treated as final and no change whatsoever will be permitted later-on. A glance at the order dated 13th May, 1994, further reveals that the Rajasthan Housing Board resolved in its 163rd meeting, held on 19th April, 1993, to enforce the Pension Scheme for the regular employees of the Rajasthan Housing Board with effect from 1st of January, 1993, and accorded an opportunity of option to the employees, who were under the CPF Scheme, to switch over the Pension Scheme. The office order further stipulated a condition to the effect that the employees, who did not submit their option within the stipulated period of 90 days, they will be deemed to have opted for the Pension Scheme.

The petitioner retired on 30th April, 1996, attaining the age of superannuation, is a fact, which is not in dispute. Furthermore, the petitioner also received all the monetary benefits at the time of his superannuation under the CPF Scheme. For the first time he represented to the respondents vide communication dated 20th November, 2007 (Annexure-2), which was responded by the respondents vide communication dated 27th April, 2007 (Annexure-R/2).

On a subsequent representation dated 17th March, 2008, followed by a notice for demand of justice dated 14th April, 2008, the petitioner had been again informed, declining his prayer for allowing him to switch over to Pension Scheme, by changing the option, vide communication dated 23rd February, 2008, which specifically incorporates the fact of information furnished vide communication dated 27th April, 2007.

It may be noted here that the petitioner is a literate person and retired from the post of Principal Private Secretary, therefore, he must have been well aware of the consequences and implications while he opted for the CPF Scheme, under his letter of option, in response to the office order dated 13th May, 1994. From the facts and materials available on record, it is evident that the decision to opt for CPF Scheme, was a conscious decision of the petitioner to ensure the fact that he continues with the CPF Scheme. The option furnished by the petitioner was honoured by the respondents and all the monetary benefits accrued to the petitioner, as a consequence thereof, under the CPF Scheme, were released to him at the time of his superannuation. Hon''ble Supreme Court dealing with somewhat similar controversy in the case of National Council of Educational Research and Training (supra), held thus:-

We may now consider whether dehors the decision of this Court in R. Subramaniam (supra) the Respondent could be allowed to opt for the Pension Scheme having earlier opted for the CPF Scheme while in service. Admittedly, the Respondent while he was in service of NCERT had opted for the CPF Scheme way back in 1977 and on his retirement, he had availed the benefits of the CPF Scheme. This Court has held in Krishena Kumar, etc. v. Union of India and Ors., V.K. Ramamurthy v. Union of India and Anr. and Union of India and Ors. v. Kailash (supra) that once an employee has opted for the CPF Scheme, his exercise of option was final and he is not entitled to change over to the Pension Scheme because the two schemes are entirely different. It, however, appears that the Government in the Ministry of Personal and Training by the O.M. dated 06.06.1985 gave an opportunity to Central Government employees who had earlier opted for the CPF Scheme to opt for the Pension Scheme.

The relevant portion of the O.M. dated 06.06.1985 is extracted herein below:

...In the light of these changes, the President is now pleased to decide that Central Government employees who have retained the Contributory Provident Fund benefits in terms of Rule 38 of the Contributory Provident Fund Rules (India), 1962 or in terms of any other orders issued in this behalf, may be allowed another opportunity to opt for the Pension Scheme as laid down in the Central Civil Services (Pension) Rules, 1972. The option is open to those Government employees who were in service on the 31st March, 1985 and retiring from service on or after that date. The option should be exercised within a period of six months from the date of issue of this O.M. Option once exercised shall be final.

The O.M. dated 06.06.1985 has been adopted by the NCERT in its Circular dated 18.07.1985. It will be clear from the language of the O.M. dated 06.06.1985 that the option to an employee to switch over from the CPF Scheme to the Pension Scheme was open to only those employees who were in service on 31.03.1985 and who were retiring on or after 31.03.1985. By 31.03.1985, admittedly, the Respondent had retired, his date of retirement being 31.07.1984. He is, therefore, not entitled to fresh option to switch over from the CPF Scheme to the Pension Scheme.

As stipulated in the order dated 13th May, 1994, the option furnished thereunder, by the employees, was subject to specific conditions stipulated therein. Thus, where the employees opted for the pensionary benefits, by not submitting any option in response to order dated 13th May, 1994; the part of the contribution by the Government, together with the interest therein and/or special contribution to the employees of the Rajasthan Housing Board on that count are the factors, which become relevant. Be that as it may, the order (Annexure-R/1), specifically incorporated the condition to the effect that the employee who did not submit his option form, would be deemed to be under the Pension Scheme. Further, the option once exercised was to be final and no change whatsoever was permissible thereafter. Therefore, in such circumstances, if the employee opted for the pensionary benefit or contributory fund, as the case may be, further payment in the respective account was to be reconstructed. Moreover, a sufficient time of 90 days was allowed to submit the option form, obviously keeping in mind the consequences and implications of the exercise of the option.

It needs no reiteration that the two Schemes i.e. Pension Scheme and Contributory Provident Fund Scheme, are structurally different Schemes and they operate in entirely different field. The employees retiring as beneficiaries of the CPF Scheme and Pension Scheme, belong to two different class and therefore, there is no element of any discrimination.

For the reasons and discussions hereinabove, the writ petition is devoid of any substances and lacks in merits and therefore, deserves to be dismissed.

In the result, the writ petition is hereby dismissed.

However, in the facts and circumstances of the case, there shall be no order as to costs.