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2017 DIGILAW 576 (CAL)

Haradhan Dutta v. State of West Bengal

2017-06-29

ARIJIT BANERJEE

body2017
JUDGMENT : 1. The petitioners are all retired employees of South Bengal State Transport Corporation (in short ‘SBSTC’). In this writ application the petitioners pray for the following reliefs: “(a) A writ in the nature of Mandamus commanding the respondents and their men, agents and subordinates to implement the pensionary benefits as specified in the SBSTC Employees Pension Regulation, 2002 in favour of the petitioner immediately; (b) A writ in the nature of Mandamus commanding the respondents and their men, agent and subordinates to pay all arrear dues on pension head to the petitioners after adjustment of the returnable amount if any from the payable amount as arrear after exercising option form each of them; (c) A writ in the nature of Mandamus commanding the respondents and their men, agent and subordinates to pay the pension including arrear pension in favour of the petitioners in terms of the spirit of the judgment and subsequent order passed by the Hon’ble High Court and Hon’ble Supreme Court as well as in terms of the decision taken by the SBSTC Board in its 125th meeting dated June 10th 2010 to implement the Pension Regulation, 2002 in the line of North Bengal State Transport Corporation/Calcutta State Transport Corporation immediately;” Contention of the petitioners:- 2. The Durgapur State Transport Corporation (in short ‘DSTC’) was established with effect from 7 December, 1973 vide notification dated 4 December, 1973 issued by the Government of West Bengal in exercise of its power under Sec. 3 of the Road Transport Corporations Act, 1950 (in short ‘RTC Act’). Vide notification dated 17 March, 1988 the name of DSTC was changed to SBSTC. 3. Sec. 47B(1)(f) of the RTC Act, 1950 which is a State amendment reads as follows:- “(f) Persons employed by the State Government in connection with the State undertaking and continuing in office immediately before the establishment of the Corporation shall be employed by the Corporation on such terms and conditions, not less advantageous than what they were entitled to immediately before such establishment, as may be determined by the Corporation” 4. The SBSTC Employees’ Pension Regulations, 2002 were framed for the benefit of the employees of SBSTC. The SBSTC Employees’ Pension Regulations, 2002 were framed for the benefit of the employees of SBSTC. However, a decision dated 8 April, 2003 was taken by the Board of SBSTC not to implement the Pension Regulations, 2002 in view of the fact that only 189 retired employees of SBSTC had opted for the scheme and none of the current employees opted for the same. The petitioners contend that prior to such decision the petitioners had made representations dated 25 July, 2002 and 9 August, 2002 for modification of the Pension Regulations since they were not at par with the State Government Regulations pertaining to pensionary benefits. The decision of SBSTC not to implement the 2002 Regulations was challenged by 60 retired employees by filing WP No. 13475 (W) of 2003 in this Court. The said writ petition was disposed of by Pratap Kumar Ray, J. (as His Lordship then was) by a judgment and order dated 25 April, 2008. The operative portion of the said judgment and order reads as follows:- “36. Considering all material facts and on considering the respective affidavits of the parties and having regard to the findings and observations as above, writ application, accordingly, succeeds. 37. It is ordered that writ petitioners and all the retired employees who opted the Pension Regulations, 2002 are entitled to get the benefits of death-cum-retirement benefits in terms of the South Bengal State Transport Corporation Employees’ Pension Regulations, 2002. The respondents are directed to take steps for release of the pension and other death-cum-retirement benefits in terms of the said Regulations, 2002 by implementing the Pension Regulations, 2002 in respect of the writ petitioners and the other employees who opted such Pension Regulations, 2002 by releasing their all arrears amount of pension and other dues within four months from this date and to start to release the pension by issuing Pension Payment Order in terms of the Pension Regulations, 2002 within two months from this date. A compliance report to be submitted by the respondent corporation through its Managing Director to the High Court registry by complying with this order of release of current pension by filing such affidavit within two months from this date and by filing further affidavit of compliance to the High Court Registry by making payments of arrears amount of pension on adjusting the dues, if any, in terms of Pension Regulations, 2002 within six months from this date. 38. The writ application, accordingly, is allowed. There will be a cost of Rs. 20,000/- to be paid to the writ petitioners, the retired employees who have been compelled to take shelter of the Writ Court due to arbitrary action of the Corporation who despite Introduction of the Pension Regulations, 2002 did not implement the same. Such cost to be paid within a month from this date and compliance report to be filed by the Managing Director of the Corporation to the High Court Registry.” 5. By notification dated 17 September, 2009 issued by the Governor of West Bengal, the North Bengal State Transport Corporation Employees’ Pension Regulations, 1990 were amended and such amendment brought the pensioners/family members of the NBSTC at par with the State Government pensioners in the matter of admissibility of pension and relief of pension with effect from 1 April, 2008. By a notification dated 30 November, 2010, the Calcutta Tramways Company Employees’ (Deathcum-Retirement) Pension Regulations, 1990 were amended whereby the pensionary benefits of the employees of Calcutta Tramways Company Limited were brought at par with those of State Government employees. 6. From the order of the Learned Single Judge passed in WP No. 13475(W) of 2003, the State of West Bengal and SBSTC both preferred appeals. By a judgment and order dated 2 July, 2008 the Hon’ble Division Bench dismissed the appeals. The operative portion of the judgment and order of the Hon’ble Division Bench reads as follows: “On due consideration of the entire matter, we are of the opinion that the petitioners having legally opted to come under the purview of Pension Regulations, 2002, the appellant Corporation is bound to give effect to the same. We see no reason at all to interfere with the conclusions reached by the Learned Single Judge. We, therefore, dismiss these appeals and uphold the judgment of the Learned Single Judge.” 7. We see no reason at all to interfere with the conclusions reached by the Learned Single Judge. We, therefore, dismiss these appeals and uphold the judgment of the Learned Single Judge.” 7. The SBSTC carried the matter to the Hon’ble Apex Court by way of Special Leave Petition but the same was dismissed by the Apex Court. 8. During the pendency of the appeal before the Hon’ble Apex Court the Managing Director of SBSTC wrote a letter dated 22 July, 2010 to the Secretary to the Government of West Bengal requesting for extending to the employees of SBSTC the Pension Regulations introduced by the Government for CTC/NBSTC. 9. The SBSTC Sramik Union made a representation dated 14 November, 2014 to the Principal Secretary, Transport Department, Government of West Bengal for implementing the SBSTC Employees’ Pension Regulations, 2002 and subsequently for enhancing the benefits under the said Pension Regulations so that the same is at par with the benefits received by the employees of NBSTC/CTC. Several individual representations were also made by the employees of the SBSTC. 10. In the above factual background, learned Counsel for the petitioners submitted that although the petitioners were not a party to the writ petition on which Pratap Kumar Ray, J. passed the judgment and order dated 25 April, 2008, the petitioners are similarly placed as the petitioners in the earlier writ petition and are entitled to the same benefits. Learned Counsel submitted that although a judgment in personam enures only to the benefit of the parties to the lis in which the judgment is passed, the in personam theory does not work in cases of salary scale or retiral benefits or similar matters. Learned Counsel further submitted that the petitioners and other employees of SBSTC are being discriminated against vis-a-vis the employees of NBSTC and CTC and hence Article 14 comes into play. 11. Learned Counsel further submitted that there was no delay on the part of the petitioners in approaching this Court. Immediately after publication of notice for option, a written objection was filed on 9 August, 2002, within ten days from the date of the notice by the Union on behalf of the petitioners alleging that the Pension Regulations required modification as it is violative of Sec. 47B(1)(f) of the RTC Act. Immediately after publication of notice for option, a written objection was filed on 9 August, 2002, within ten days from the date of the notice by the Union on behalf of the petitioners alleging that the Pension Regulations required modification as it is violative of Sec. 47B(1)(f) of the RTC Act. This was never replied to nor it was circulated in any fashion that the employees would have to submit option and in view thereof many members of the Union could not submit option. Immediately thereafter, the Corporation by order dated 8 April, 2003 decided not to implement the Pension Regulations and therefore the said Regulations became non-est including the notice inviting option. Some of the optees who challenged the order of 8 April, 2003 succeeded in 2008 but the Regulations were not revived because of the litigation pending at the instance of the Corporation before the Appellate Forum and/or before the Hon’ble Apex Court. The Regulations revived only in 2014 after the Hon’ble Apex Court held against the Corporation. Immediately thereafter, the Union and the petitioners made representations for extension of the benefits of the pension regulations to them and to take option, if so needed. That apart, since 9 August, 2009 (ten days after inviting option) even when the matter was pending before this Court and the Apex Court, the Union on behalf of the petitioners had made various representations. The Government of West Bengal through its Finance Department assured the Union that the case of its members would be sympathetically considered (letter dated 27 December, 2005, page 130 of the writ petition). Again by a letter dated 8 March, 2011, the Transport Department of the Government of West Bengal said that the matter is sub-judice before the Hon’ble Apex Court and hence the decision of the Hon’ble Apex Court should be awaited. During such continuous correspondence the question to submit of option was not raised at all. By this time, the pensionary benefits of other transport undertakings were enhanced and brought at par with the State Government employees. 12. In any event, belated submission of option is not a ground for denying pension, submitted learned Counsel. In this connection learned Counsel relied on the decision of the Apex Court in the case of State of UP-vs.-Arvind Kumar Srivastava delivered in Civil Appeal No. 9849 of 2014. I will revert back to this decision later. 13. 12. In any event, belated submission of option is not a ground for denying pension, submitted learned Counsel. In this connection learned Counsel relied on the decision of the Apex Court in the case of State of UP-vs.-Arvind Kumar Srivastava delivered in Civil Appeal No. 9849 of 2014. I will revert back to this decision later. 13. Further, in the judgment of the first pension case it was clarified that the earlier benefits of SBSTC Employees Contributory Provident Fund Regulations were lifted by giving effect to and introducing the pension Regulation 2002 with effect from 4 July, 2002 and the SBSTC retired employees came under the umbrella of the Pension Regulations, 2002 with effect from 1 April, 1984. It was further clarified in the said judgment that regulations imposed obligation on statutory authorities to implement the regulations and the authorities could not deviate from the conditions of service stipulated by the Regulations. The Board’s decision dated 8 April, 2003 has no effect on the retired employees and the corporation is bound to implement the Pension Regulation, 2002. 14. Learned Counsel for the petitioners contended that the petitioners in the instant case and the petitioners in the earlier writ petition being WP No. 13475(W) of 2003 are identical and similarly placed. Their appointments were made by the same officer. In the judgment of the earlier writ petition the learned Single Judge held that the retired employees of SBSTC were Government servants. It was also reiterated by the Division Bench in its judgment that ‘it is not disputed that all the retired employees were previously employees of the Transport Department of the Government of West Bengal and they were shifted from the State Government to successive Corporations.’ It was further held that it was not disputed that service under the State Government is pensionable service. That apart, the employees of the DSTC were brought to the Corporation from the State Government after its establishment and their service condition is protected under Sec. 47B(1)(f) of the RTC Act. This is also admitted by the Managing Director of the SBSTC in his letters written to the State Government, copies whereof are at pages 64-65 of the writ petition. Hence, the petitioners were/are entitled to pensionary benefits at par with the State Government employees and no option was/is needed to be exercised for availing pensionary benefits. Contention of SBSTC: 15. Mr. Hence, the petitioners were/are entitled to pensionary benefits at par with the State Government employees and no option was/is needed to be exercised for availing pensionary benefits. Contention of SBSTC: 15. Mr. Gupta, Learned Counsel appearing on behalf of the SBSTC referred to the Pension Regulations 2002 and in particular he referred to Clauses 2(2), 2(3) and 6 of the said regulations which read as follows:- “2(2)The death-cum-retirement benefits are admissible to the employees who were on pay roll of the Corporation as on 1st April, 1984 and who are on pay roll and remain on the pay roll of the Corporation till the date of actual notification of these regulations in the official Gazette of the Government of West Bengal, in lieu of the benefits of contributory Provident Fund as provided in the South Bengal State Transport Corporation employees’ Contributory Provident Fund Regulations including the benefits of gratuity under Gratuity Rules of the State Government. The employees permitted to retire under Disablement Retirement Benefit Scheme of the Corporation will, however, not be entitled to any gratuity under this Regulation. 2(3). The Pension Regulation shall be optional to the employees as provided in Regulation 2(2). 6. (1) The employees who may prefer to come under the purview of these regulations shall have to exercise their options within six (6) months from the date of actual publication in the official Gazette. (2) The employees who were on pay roll of the Corporation as on the date on which these regulations came into effect and onwards but retired on subsequent dates but before the publication of these regulations may exercise their option within six (6) months from the date of publication of these regulations provided they refund to the Corporation the full amount being share of Corporation’s contribution towards Contributory Provident Fund together with interest accrued thereon. They will, however, be entitled to get the benefit of pension from the date they refunded the Employer’s share of Contribution of Provident Fund together with interest they received subject to provisions contained in sub-Regulations (i), (ii) and (iii) below. (i) The Employees who have retired after 01.04.1997 or will retire hereafter employee’s contribution to the Contributory Provident Fund along with interest accrued thereon any other retirement benefit already drawn under Payment of Gratuity Act or other Rules and Acts etc. (i) The Employees who have retired after 01.04.1997 or will retire hereafter employee’s contribution to the Contributory Provident Fund along with interest accrued thereon any other retirement benefit already drawn under Payment of Gratuity Act or other Rules and Acts etc. will have to be refunded to the South Bengal State Transport Corporation for being eligible to draw pensionary benefits as mentioned above. In the cases of those employees who have already drawn retirement benefits in the shape of employer’s contribution towards contributory Provident Fund and/or Gratuity under existing rule, which was in operation at the material time, the amount of such retirement benefit shall, however, be adjusted to the extent possible against arrears of pension and other retirement benefits payable with effect from 01.04.1997. if any balance remains the same may be adjusted against the future payment on account of relief on pension. (ii) Employees retiring upto 31st March, 1997 may be paid pension according to this revised pattern w.e.f. 1st April, 1997. No arrears on account of introduction of this pension scheme may be paid to them for the period upto 31.3.1997. Likewise the South Bengal State Transport Corporation will not claim refund of employer’s share of contribution towards Contributory Provident Fund together with interest accrued thereon, and/or any other retirement benefits already allowed to the employees for the period upto 31.3.1997. The employees who have drawn gratuity under the payment of Gratuity Act, 1972 or any other rules in force at the material time shall not, however, be entitled to revised rate of gratuity applicable with effect from 1st April, 1997. (iii) Each employee/retiree has to give his/her expressed consent to the terms and conditions at (i) and (ii) above before he/she is brought to under this revised pension system. (3) Failure to exercise option by an employee within the stipulated period as referred to in Regulation 6(1) and 6(2) shall be treated as if he had not opted towards the Pension Regulations. (4) If an employee expires before exercising his option as referred to in Regulation 6(1) and 6(2) it should be taken as if he had not exercised his option in favour of the pension.” 16. Learned Counsel submitted that all the petitioners except the petitioner no. 27 retired between 2002-2010. The petitioner no. 27 retired on 28 February, 1999. The petitioners accepted their entire retiral benefits under the CPF Scheme. Learned Counsel submitted that all the petitioners except the petitioner no. 27 retired between 2002-2010. The petitioner no. 27 retired on 28 February, 1999. The petitioners accepted their entire retiral benefits under the CPF Scheme. After a huge delay, now they are seeking to switch over to the pension scheme. They are nothing better than fence-sitters. They are not similarly placed as the petitioners in the earlier writ petition. The petitioners in the earlier writ petition had all opted for the pension scheme. For such reason, learned Single Judge held in the earlier writ petition that SBSTC could not back out after the petitioners had exercised their option. Direction was given by the learned Judge for extending the benefits of the pension scheme only to the petitioners in that case and to other retired employees who had opted for the scheme. However, the present petitioners did not opt for the pension scheme at any stage. Hence, the present petitioners cannot claim any benefit under the judgment and order of the learned Single Judge in the earlier writ petition, as affirmed by the Division Bench and the Hon’ble Apex Court. 17. Learned Counsel then submitted that there is also inordinate delay on the part of the petitioners in approaching this Court. By 2010 all the petitioners had retired. However, they approached this court only in 2015. The last date for exercise of option was September, 2002. On the ground of delay alone the writ petition should not be entertained. 18. The petitioners were sitting on the fence and watching the fate of the earlier writ petition. After the earlier writ petition succeeded and with the change of the socio-economic situation the petitioners now want to switch over to the pension scheme. This is impermissible in law. In this connection learned Counsel relied on the following Apex Court decisions:- (i) Pepsu Road Transport Corporation, Patiala-vs.-Mangal Singh, (2011) 11 SCC 702 , paras 3-6, 51, 52, 55 and 56. (ii) Rajasthan State Road Transport Corporation-vs.-Madu Giri (Dead) through LRs, (2013) 11 SCC 603 , paras 2, 4 and 8. (iii) Dwipendra Nath Mukherji-vs.-Board of Trustees for the Port of Kolkata, (2015) 13 SCC 573. (iv) Pepsu Road Transport Corporation, Patiala-vs.-S. K. Sharma, (2016) 9 SCC 206 , paras 13 and 23 (v) Rajasthan Rajya Vidyut Vitran Nigam Limited-vs.-Dwarka Prasad Koolwal, (2015) 12 SCC 51 (68) 19. Mr. (iii) Dwipendra Nath Mukherji-vs.-Board of Trustees for the Port of Kolkata, (2015) 13 SCC 573. (iv) Pepsu Road Transport Corporation, Patiala-vs.-S. K. Sharma, (2016) 9 SCC 206 , paras 13 and 23 (v) Rajasthan Rajya Vidyut Vitran Nigam Limited-vs.-Dwarka Prasad Koolwal, (2015) 12 SCC 51 (68) 19. Mr. Gupta then submitted that just because NBSTC employees have been extended the benefit of pension scheme, the employees of SBSTC including the petitioners cannot as a matter of right claim the same. NBSTC and SBSTC are separate Corporations. Different considerations apply to the employees of the said two corporations. The employees of the two Corporations are not similarly situated. Hence, the question of violation of Article 14 of the Constitution does not arise. 20. Learned Counsel then referred to the appointment letter of the petitioner no. 1 by way of example. He submitted that although at the top of the letter ‘Government of West Bengal’ is mentioned, the letter is issued by the Chief Executive Officer of the DSTC. He also referred to a letter dated 20 October, 1971 written by the Assistant Secretary to the Government of West Bengal to the Chief Executive Officer, DSTC to the effect that he had been advised by the Law Officer of the Government that the DSTC employees are all Government servants. Mr. Gupta submitted that this is just an advisory letter and cannot confer any right on the petitioners. 21. Mr. Gupta then referred to a Government Order dated 23 February, 1967 published in the Official Gazette Extraordinary dated 26 February, 1967. Clause 1 of the said G.O. provides that there shall be a Board called the Durgapur State Transport Board established by the State Government by notification published in the Official Gazette. Clause 3(i) provides that the Board shall have a Chief Executive Officer appointed by the State Government. Clause 5 provides that the Board shall be in charge of and have administrative control over the Durgapur State Transport Service and shall operate road transport service in and around Durgapur and in such other areas as may be decided by the State Government from time to time. Clause 5 provides that the Board shall be in charge of and have administrative control over the Durgapur State Transport Service and shall operate road transport service in and around Durgapur and in such other areas as may be decided by the State Government from time to time. Clause 17 provides that in addition to the powers that may be delegated by the Board, the Chairman shall have power to make appointment to all posts in consultation with a selection committee to be constituted by the Board with the approval of the State Government and to delegate with the approval of the State Government to the Chief Executive Officer or any other officer such of his powers and functions as may be considered necessary for the efficient day to day administration of the business of the Board. Clause 21 provides that the Chief Executive Officer shall exercise such powers as may be conferred upon him by the Chairman in terms of clause 17(1)(g) or by the Board in terms of clause 16. On the basis of the aforesaid clauses the Mr. Gupta submitted that the SBSTC (Formerly DSTC) is an independent authority having complete powers to manage its own affairs and the employees of SBSTC cannot be deemed to be Government employees. 22. Mr. Gupta finally relied on an order dated 4 February, 2016 delivered by a learned Single Judge of this Court in WP No. 29286 (W) of 2015 (Tarapada Biswas-vs.-The State of West Bengal). I will revert back to this order later. 23. Regarding the petitioners’ contention that they were State Government employees initially, Mr. Gupta submitted that the same is totally misconceived. The petitioners were appointed by the Chief Executive Officer of the Durgapur State Transport Board. Durgapur State Transport Service was formed on 1 August, 1963 which subsequently became Durgapur State Transport Board by an order through Gazette notification in 1967. It was a State Government undertaking which was formed by Gazette notification No. 1779-WT published on 23 February, 1967. Subsequently, in exercise of the power conferred by Sec. 3 of the RTC Act, 1950, DSTB was renamed as DSTC and subsequently was renamed as SBSTC. 24. By the said Notification dated 23.2.1967, the Board of DSTS/DSTB consisting of a Chairman and Board members was given exclusive power of administrative control over the DSTS/DSTB. Subsequently, in exercise of the power conferred by Sec. 3 of the RTC Act, 1950, DSTB was renamed as DSTC and subsequently was renamed as SBSTC. 24. By the said Notification dated 23.2.1967, the Board of DSTS/DSTB consisting of a Chairman and Board members was given exclusive power of administrative control over the DSTS/DSTB. In the said Notification under clause 6(1), it was provided that the Government may from time to time issue directions regarding operation and control of DSTS and this direction may relate to the recruitment, condition of service etc. of its employees. This clearly shows that DSTS/DSTB had the power to employ its own employees. It is clear from the appointment letters of the writ petitioners that same were issued by the Chief Executive Officer of DSTS/DSTB by exercising his power under clauses 17(c) and (g) as conferred upon him by the Chairman of DSTB/DSTC and as per clauses 21 and 23 of the said Gazette Notification. Such appointments were initially on temporary basis. The appointment letters do not show that the writ petitioners were appointed as State Government employees. None of the procedures followed for appointment of State Government employees were followed in case of the writ petitioners. 25. Regarding reliance of the petitioners on the observations made by this Court in WP No. 13475(W) of 2003 that all the petitioners were earlier employees of the State of West Bengal, Mr. Gupta submitted that such observations are restricted to the petitioners in that writ petition. The present writ petitioners cannot take the benefit of such observation as they have failed to show their induction as State Government employees. Moreover, the present writ petitioners have accepted the service conditions of SBSTC including the applicability of CPF Scheme long time ago and as such waived their right to get pension, if any. They have acquiesced to the service condition of SBSTC even if it is assumed for the sake of argument that they were State Government employees at some point of time. The petitioners have accepted the service conditions of SBSTC through-out their service life and even after their retirement. As such they are prevented by the principles of delay, waiver and acquiescence from claiming the benefit of pension as State Government employees. The petitioners have accepted the service conditions of SBSTC through-out their service life and even after their retirement. As such they are prevented by the principles of delay, waiver and acquiescence from claiming the benefit of pension as State Government employees. In this connection learned Counsel relied on the Apex Court decision in the case of Pepsu Road Transport Corporation, Patiala-vs.-S. K. Sharma, (2016) 9 SCC 206 , paras 13, 23 and 24. 26. Regarding the point of discrimination urged by learned Counsel for the petitioners, Mr. Gupta submitted that the service conditions of two statutory Road Transport Corporations may not be same. NBSTC and SBSTC are two separate statutory entities having independence of governance. They are free to make their own policy decisions and the decision of one Corporation to extend the benefit of pension to all its employees cannot compel the other Corporation to adopt the same course of action. 27. As regards the policy decision of the Government as communicated by its letter dated 5 October, 2015, Mr. Gupta submitted that a uniform scheme has been formulated by the Government for all the Road Transport Corporations for disbursement of post-retirement benefits. Such scheme relates to disbursement of CPF, gratuity, leave salary etc of the retired employees in a uniform manner. The said scheme has nothing to do with the policy decisions of the respective Corporations to follow or not to follow any particular scheme. Hence, neither the pension policy of NBSTC nor the scheme of the State Government for disbursement of retiral benefits would compel SBSTC to adopt a particular pension scheme. There is no violation of Article 14 of the Constitution of India. Contention of State:- 28. Mr. Amal Kumar Sen, Learned Counsel for the State referred to the judgment of the Learned Single Judge in the earlier writ petition and submitted that the challenge in that writ petition was to the decision of SBSTC not to implement the pension scheme. All points were discussed and the decision of the Learned Single Judge has attained finality since the intra Court appeal and the SLP were both dismissed. Such points cannot be re-agitated in the present writ petition. All points were discussed and the decision of the Learned Single Judge has attained finality since the intra Court appeal and the SLP were both dismissed. Such points cannot be re-agitated in the present writ petition. It is clear from paragraph 37 of the learned Single Judge’s order that the Pension Regulations 2002 were directed to be implemented only in respect of the petitioners in that writ petition and other similarly placed employees who had opted for the pension scheme. The earlier writ petition was filed in a representative capacity for the benefit of all retired employees. However, relief was granted only to those retired employees who had exercised their option in favour of the pension scheme. This issue is res judicata and the present writ petitioners cannot seek to re-agitate this issue. 29. Learned Counsel then submitted that the petitioners have waived their right to claim the benefit under the pension scheme. A personal right can be waived as opposed to a class or sectional right. In this connection learned Counsel relied on a decision of the Hon’ble Apex Court in the case of General Manager, Sri Siddeshwara Cooperative Bank Limited-Vs.-Ikbal, (2013) 10 SCC 83 , para 19. 30. Mr. Sen finally submitted that having received all retiral benefits under the CPF Scheme, after such a long period of time, the petitioners cannot seek to avail the benefits under the pension scheme. Such switch over at this stage is not permissible. In this connection learned Counsel relied on the Apex Court decision in the case of Union of India-vs.-M.K. Sarkar, (2010) 2 SCC 59 , para 11, 15-25, in support of his submission that a dead/stale issue cannot be revived. 31. Learned Counsel relied on the decision in the case of T. M. Sampath-vs.-Secretary, Ministry of Water Resources, (2015) 5 SCC 333 , paras 15-19, in support of his submission that the Government employees stand on a different footing vis-a-vis SBSTC employees. 32. As regards the exercise of option, learned Counsel relied on the decisions in V. Kannappan-vs.-Union of India, Through Additional Secretary, Ministry of Finance and Company Affairs, (2015) 2 SCC 623 and Rajasthan Vidyut Vitran Nigam Limited-vs.-Dwarka Prasad Koolwal, (2015) 12 SCC 51 , paras 1-7. 33. 32. As regards the exercise of option, learned Counsel relied on the decisions in V. Kannappan-vs.-Union of India, Through Additional Secretary, Ministry of Finance and Company Affairs, (2015) 2 SCC 623 and Rajasthan Vidyut Vitran Nigam Limited-vs.-Dwarka Prasad Koolwal, (2015) 12 SCC 51 , paras 1-7. 33. In reply to the SBSTC’s argument that NBSTC, CSTC, CTC and SBSTC are separate organizations and the pensionary benefits are being extended to the employees of the other State Transport undertakings in terms of the decision of the individual STUs, learned Counsel for the petitioner submitted that the pension regulation for all the STUs were formulated by the Transport Department of the Government of West Bengal and not by the individual STUs. The benefits under the pension regulations applicable to NBSTC/CTC/CSTC have been enhanced and brought at par with State Government employees by the Transport Department. Not extending the same benefits to the employees of SBSTC amounts to discrimination and is violative of Article 14 of the Constitution of India. Furthermore, SBSTC itself decided to introduce pension scheme in the line of NBSTC/CSTC. 34. Mr. Basu finally submitted that during the pendency of several cases in this court and in compliance with the direction of this court in WP 11978(W) of 2015 regarding the retiral benefits of the employees of all the transport corporations under the RTC Act, 1950, the Government has taken a policy decision on 5 October, 2015 for extending retiral benefits to all the five corporations under the Transport Department and it is specifically mentioned in the annexure B to the letter dated 5 October, 2015 that the State Transport undertakings being public undertakings, the Government extended most of the service benefits at par with Government employees of similar category and they are entitled to same pay scale, dearness allowance, retiral benefits and the like. It is mentioned that the Government is providing 100% funds on account of pension to those employees. After issuance of the State Government Order, the entire argument advanced on behalf of the respondents defending their decision not to extend the pensionary benefits to the petitioners, fall flat. On the contrary, it has become obligatory on the part of the respondents to extend the benefits of pension to the petitioners at par with the State Government employees. After issuance of the State Government Order, the entire argument advanced on behalf of the respondents defending their decision not to extend the pensionary benefits to the petitioners, fall flat. On the contrary, it has become obligatory on the part of the respondents to extend the benefits of pension to the petitioners at par with the State Government employees. Learned Counsel submitted that pensionary benefits are the main retiral benefits of an employee and as such is a statutory and constitutional right of an employee. Non-payment thereof amounts to a continuing wrong on the part of the State Authorities. In this connection learned Counsel relied on a Division Bench decision of this Court dated 14 November, 2000 delivered in WPST No. 51 of 1999 (Akhilendu Ghosh-vs.- State of West Bengal) reported in 2001 (3) CHN 688. Learned Counsel finally submitted that the Education Department of the Government of West Bengal has extended the benefits of pension at par with State Government employees to the non-optee teachers of the schools in compliance with the order of the 16 July, 2013 of the Special Bench of this Court passed in APO 94 of 2009. In this connection, learned Counsel referred to a Gazette notification No. 749-SE(L)/SL/55-56/13 (Pt-V) dated 13 June, 2014. Court’s View:- 35. It is not in dispute that all the writ petitioners retired between 1999-2010. It is also not disputed that none of the petitioners exercised option in favour of the pension scheme. 36. The fulcrum of the petitioners’ case is the judgment and order dated 25 April, 2008 passed by the Learned Single Judge in WP No. 13475(W) of 2003. The said judgment was affirmed by the Division Bench and the Hon’ble Apex Court. The petitioners contend that they are in the same position as that of the petitioners in the earlier writ petition and hence they are entitled to get the benefit of the said judgment. I am unable to accept this submission. In the earlier writ petition the petitioners had challenged non-implementation of the Pension Regulations, 2002. Their contention was that after they had opted for the pension scheme, the SBSTC could not scrap the scheme and could not refuse to implement the scheme in so far those petitioners were concerned. I am unable to accept this submission. In the earlier writ petition the petitioners had challenged non-implementation of the Pension Regulations, 2002. Their contention was that after they had opted for the pension scheme, the SBSTC could not scrap the scheme and could not refuse to implement the scheme in so far those petitioners were concerned. The learned Trial Judge upheld such contention and ordered that the writ petitioners in that case and all the retired employees who opted for the Pension Regulations, 2002, are entitled to get the death-cum-retirement benefits in terms of the SBSTC Employees Pension Regulations, 2002. (Emphasis is mine). The Hon’ble Division Bench dismissed the appeal holding that the petitioners having legally opted to come under the purview of the Pension Regulations, 2002, SBSTC was bound to give effect to the same. 37. Hence, it is clear that the judgment and order in the earlier writ petition directed the Corporation to extend the benefits of the Pension Regulations, 2002 only to those retired employees who had opted for the pension scheme. Undisputedly, the present writ petitioners did not opt for the pension scheme. Hence, they cannot be said to be in the same position as that of the petitioners in the earlier writ petition. In my considered opinion, the present writ petitioners are not entitled to the benefit of the judgment and order passed in the earlier writ petition. Learned Senior Counsel for the petitioners relied on the decision of the Hon’ble Apex Curt in the case of State of Uttar Pradesh-vs.-Arvind Kumar Srivastava (supra). In that case, the Hon’ble Apex Court held, inter alia, that normally, when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so, would amount to discrimination and would be violative of Art. 14 of the Constitution of India. It was further observed that this principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by the Apex Court from time to time postulates that all similarly situated persons should be treated similarly. Hence, the normal rule would be that merely because other similarly situated persons did not approach the court earlier, they are not to be treated differently. I respectfully agree with the observations of the Hon’ble Apex Court and indeed I am bound by the same. Hence, the normal rule would be that merely because other similarly situated persons did not approach the court earlier, they are not to be treated differently. I respectfully agree with the observations of the Hon’ble Apex Court and indeed I am bound by the same. However, the said case does not help the petitioners, simply because they are not identically situated as compared with the petitioners in the earlier writ petition. The judgment of the learned Single Judge in the earlier writ petition cannot be said to be a judgment in rem in the sense that the benefit of the judgment is available to all the retired employees of SBSTC. The pension regulations clearly provided that the same shall be optional to the employees. Clause 6 of the Regulations required an employee desirous of coming under the purview of the Regulations to exercise his option within six months from the date of publication of the Regulations in the Official Gazette. Clause 6(3) clearly stipulated that an employee who did not exercise option within the stipulated time period shall be treated as if he had not opted for the Pension Regulations. Hence, the petitioners not having exercised their option within the stipulated time period, must be deemed to have forgone their right to come under the pension scheme. 38. It was then contended on behalf of the petitioners that an employee’s right to receive retiral and other benefits after attaining the age of superannuation is a statutory and constitutional right and the same cannot be negated only on the ground that he has not approached the legal forum within the reasonable time. In this connection, learned Senior Counsel for the petitioners relied on the Division Bench judgment of this Court in the case of Akhilendu Ghosh-Vs.-State of West Bengal (supra). Again, I am in complete agreement with the proposition of law advanced on behalf of the petitioners. However, the present case does not involve negation of the right of the petitioners to receive retiral benefits. Admittedly, the petitioners have received their full retiral benefits under the CPF Scheme. Even after that, they could have exercised their option under the pension regulations and could have refunded the benefits they obtained under the CPF Scheme so as to become entitled to the benefits of the pension scheme. However, they did not do so. Admittedly, the petitioners have received their full retiral benefits under the CPF Scheme. Even after that, they could have exercised their option under the pension regulations and could have refunded the benefits they obtained under the CPF Scheme so as to become entitled to the benefits of the pension scheme. However, they did not do so. They continued to enjoy the fruits of the retiral benefits that they received under the CPF Scheme. Evidently, they were watching the fate of the earlier writ petition. To that extent, I am in agreement with Mr. Gupta’s submission that they were fence-sitters. After the Hon’ble Apex Court finally affirmed the order of the Learned Single Judge, the petitioners decided to take a chance of availing the benefit of the said judgment by filing the present writ petition. I am unable to agree with the submission of learned Senior Counsel for the petitioners that the pension scheme became non-est in the eye of law from the date of the decision of the Corporation not to implement the same and only revived after the dismissal of the Special Leave Petition in the earlier case. This contention of the petitioners is only to try and explain or justify the complete inaction and lack of diligence on their part in exercising the option for a long period of time. The last date for exercising the option was sometime in September, 2002. The petitioners approached this Court about 13 years thereafter not with the grievance that their retiral benefits have not been paid but with a prayer that they be permitted to switch over to the pension scheme. In my opinion, under these circumstances, the decision in the case of Akhilendu Ghosh (supra), has no manner of application. 39. In Union of India-vs.-M. K. Sarkar, (2010) 2 SCC 59 , the Hon’ble Supreme Court held that whenever a scheme extending the benefit of option for switching over stipulates that the benefit will be available only to those who exercise the option within the specified time, the option should be exercised within such time. In that case, the employee chose not to exercise the option and continued to remain under the CPF Scheme and also received the entire provident fund amount on his retirement. In that case, the employee chose not to exercise the option and continued to remain under the CPF Scheme and also received the entire provident fund amount on his retirement. The Apex Court held that having enjoyed the benefits and income from the provident fund amount for more than 22 years, the respondent could not seek to switch over to the pension scheme which would result in the respondent getting in addition to the provident fund amount already received, a large amount as arrears of pension for 22 years (which will be much more than the provident fund amount that will have to be refunded in the event of switch over) and also monthly pension for the rest of his life. If the request for such belated exercise of option was accepted, the effect would be to permit the respondent to secure the double benefit of both provident fund scheme as also pension scheme, which would be unjust and impermissible. 40. In Pepsu Road Transport Corporation, Patiala-vs.-Mangal Singh (supra), the Hon’ble Apex Court rejected the delayed claim of the employees for switching over to the pension scheme after having availed their retiral benefits arising out of the CPF and gratuity without any protest. To similar effect is the decision of the Hon’ble Apex Court in the case of Rajasthan State Road Transport Corporation-vs.-Madu Giri (Dead) through LRs (supra). A similar view was taken by the Hon’ble Apex Court in Dwipendra Nath Mukherji-vs.-Board of Trustees for the Port of Kolkata, (supra) wherein the earlier decisions of the Hon’ble Apex Court in the cases referred to above were discussed. 41. The contention of the petitioners that they are State Government employees and as such are entitled to similar pensionary benefits as other Government employees also cannot be accepted. The petitioners may have been State Government employees at some point of time. However, once they joined the Corporation, they did so on new terms and conditions of service. The corporation has completely independent governance including the power to employ officers as would be evident from the Government Order dated 23 February, 1967 referred to by the Learned Counsel for SBSTC. The petitioners accepted the entire situation and their status as employees of the Corporation leading to admissible retiral benefits. The corporation has completely independent governance including the power to employ officers as would be evident from the Government Order dated 23 February, 1967 referred to by the Learned Counsel for SBSTC. The petitioners accepted the entire situation and their status as employees of the Corporation leading to admissible retiral benefits. In this connection, one may refer to the decision of the Hon’ble Apex Court in the case of Pepsu Road Transport Corporation, Patiala-vs.-S.K. Sharma (supra), wherein at paragraphs 13 and 23 to 25 of the reported judgment the Hon’ble Apex Court observed as follows:- “13. In the present case admission or declaration made by the Corporation on 30-11-1956 through Order No. 61 that services of the respondents i.e. of all temporary employees stood transferred to the Corporation with effect from 16.12.1956 and shall be governed by the new terms and conditions as and when approved by the Corporation was within the knowledge of the respondents and they accepted such orders of the Government and the Corporation from 1956 till their retirement and even thereafter till the enforcement of the 1992 Regulations which led to filing of the writ petition by them in 1992. Clearly the respondents acquiesced to the entire situation and accepted their status as employees of the corporation leading to admissible retiral benefits. In such circumstances, the aforesaid judgment cannot help the respondents. The appellant Corporation was fully justified in raising the plea of delay and laches. The High Court erred in ignoring such plea when the delay was quite unusual. We find no material to satisfactorily explain such delay. 23. In the facts of the case, we have no hesitation to hold that the High Court erred in following the writ petition and second appeal of the respondents and in dismissing the letters patent appeal of the appellants. The judgments on which the respondents have relied upon for advancing the submission that they cannot lose the status of a government servant till they are absorbed in the Corporation after offering an option in favour of such absorption is entirely misconceived and inapplicable in the facts of the present case. The stand of the respondents could have been acceptable had there been no decision of PEPSU State as evidenced by the Letter of the Chief Secretary dated 16.10.1956 which finds mention and reiteration by way of admission by the Corporation in order dated 30.11.1956. The stand of the respondents could have been acceptable had there been no decision of PEPSU State as evidenced by the Letter of the Chief Secretary dated 16.10.1956 which finds mention and reiteration by way of admission by the Corporation in order dated 30.11.1956. The can be no such belated challenge to the decision of PEPSU State whereby PEPSU Roadways, one of the departments came into and merged with the Corporation lock, stock and barrel before the merger of PEPSU with Punjab 1.11.1956. Hence, the provisions of the State Reorganization Act ceased to have any significance in the matter because the respondents ceased to be employees of the State Government of PEPSU prior to 1.11.1956. They accepted such merger and alteration of their service conditions without any protest. Since 1957, under the Regulations of the Corporation they participated and contributed to the scheme of CPF and obtained the benefits of retirement from the Corporation between 1985 and 1991 without any protest. The High Court clearly erred in ignoring such conduct of the respondents, the effect of the Chief Secretary’s Letter dated 16.10.1956 containing the decision of PEPSU State and its acceptance by the Corporation reflected by the order dated 30.11.1956. 24. The High Court further erred in relying upon law which is applicable when there is no merger of government concern with the private concern but only individual employees are transferred on deputation or on foreign service to other organizations/services. The ordinary rules providing for asking of option or issuance of letters of absorption depend upon the nature of stipulations which may get attracted to a case of deputation. There may be similar stipulations in case of merger by transfer. But if there are no such stipulations like in the present case then the transferee concern like the Corporation has no obligation to ask for options and to issue letters of options to individual employees who become employees of the transferee organization simply by virtue of order and action of transfer of the whole concern leading to merger. No doubt in case of any hardship, the affected employees have the option to protest and challenge other the merger itself or any adverse stipulation. No doubt in case of any hardship, the affected employees have the option to protest and challenge other the merger itself or any adverse stipulation. However, if the employees choose to accept the transition of their service from one concern to another and acquiesce, then after decades and especially after their retirement they cannot be permitted to turn back and challenge the entire developments after a gap of decades. 25. On the basis of laws and facts discussed above, we are constrained to hold that the respondents had accepted to continue as employees of the Corporation pursuant to order of merger/transfer of PEPSU Roadways with effect from 16.10.1956 and on completing their service under the Corporation and reaching the age of retirement they were entitled to receive only the benefits of CPF and gratuity as admissible to them under the then prevailing Regulations of the Corporation. Since they accepted those retiral benefits there is no relationship left between the Corporation and the respondents and in such a situation further claim against the Corporation that it should treat the respondents to be government servants and adjust their retiral benefits accordingly was totally untenable and wrongly allowed by the High Court. The impugned judgment of the High Court granting relief to the respondents is therefore set aside. The second appeal and the writ petition of the respondents shall stand dismissed. This appeal is accordingly allowed but the parties are left to bear their own costs.” 42. It was next contended on behalf of the petitioners that the retiral benefits under the pension regulations applicable to the NBSTC/CSTC/CTC have been enhanced and brought at par with the state Government employees and not doing so in respect of the employees of SBSTC would amount to discrimination and would be violative of Article 14 of the Constitution of India. It was further contended that SBSTC itself has decided to introduce a pension scheme in the line of NBSTC/CSTC. In my opinion, the petitioners cannot be permitted to agitate this point at this belated stage. In any event, the different State Transport Corporations are separate entities and they are free to make their own policy decisions. One Transport Corporation is not bound to follow the policy adopted by another transport corporation as regards retiral benefits payable to its employees. 43. In any event, the different State Transport Corporations are separate entities and they are free to make their own policy decisions. One Transport Corporation is not bound to follow the policy adopted by another transport corporation as regards retiral benefits payable to its employees. 43. Learned Senior Counsel for the petitioners strenuously argued that the State Government has taken a policy decision for extending retiral benefits to employees of all the five State Transport Corporations under the Transport Department, at par with Government employees. Hence, the pension scheme must be made applicable to the petitioners. I am unable to agree with learned Senior Counsel. As it appears to me, the said decision of the Government relates to disbursement of the retiral benefits of the employees of the State Transport Corporations in a uniform manner as has been submitted by Mr. Gupta, learned Senior Counsel for the SBSTC. The said decision of the State Government, in my opinion, would not make it obligatory upon a particular State Transport Corporation to adopt the pension scheme. In any event, in my view, the petitioners cannot be allowed to agitate this issue, having accepted without protest or demur their entire retiral benefits under the CPF scheme and not having exercised their option in favour of the pension scheme within the time period stipulated. It also does not appear that the petitioners refunded the amounts they have received as part of retiral benefits under the CPF Scheme as stipulated in Clause 6 of the Pension Regulations, 2002 without doing which they would not be entitled to come under the pension scheme. 44. I am of the view that the employees of a statutory Corporation like SBSTC stand on a different footing compared to Government employees. From the Government Order dated 23 February, 1967 it is clear that SBSTC is an autonomous body functioning according to its own rules and regulations. The letters of appointment of the petitioners also do not show that the State Government is the appointing authority. Even if SBSTC receives grants/aid from the State Government as and when necessary, the same per se would not make SBSTC an instrumentality of the State Government bereft of other considerations. In this connection, one may refer to the decision of the Hon’ble Apex Court in the case of T.M. Sampath-vs.-Secretary, Ministry of Water Resources (supra). Even if SBSTC receives grants/aid from the State Government as and when necessary, the same per se would not make SBSTC an instrumentality of the State Government bereft of other considerations. In this connection, one may refer to the decision of the Hon’ble Apex Court in the case of T.M. Sampath-vs.-Secretary, Ministry of Water Resources (supra). In that case, the National Water Development Agency (in short ‘NWDA’) was established as a society in July, 1982 and was registered under the Societies Registration Act, 1860. NWDA is under the aegis and control, both administrative and financial, of the Ministry of Water Resources, is fully funded by the Government of India and headed by the Union Minister for Water Resources as the President. NWDA framed its regulations for its smooth functioning. Whatever emoluments were prescribed for the Government servants by the Central Government office memorandum, were made applicable mutatis mutandis to the employees of NWDA. Bye-law 28 of NWDA mandated that the rules and orders applicable to the Central Government employees shall apply mutatis mutandis to the employees of NWDA subject to modification by the governing body concerning service condition. Bye-law 26(a) provided for the emoluments structure for all employees that would be adopted by NWDA with the approval of the Ministry of Finance. Bye-law 28 provided that till such time NWDA frames its own rules governing service conditions of the employees, rules and orders applicable to the Central Government employees shall apply mutatis mutandis, subject to such modification as made by NWDA from time to time. The Central Government issued Office Memorandum (in short ‘OM’) dated 1 May, 1987 regarding change over of employees from CPF Scheme to Pension Scheme. The said OM provided inter alia that all CPF beneficiaries who were in service on 1 January, 1986 and who were still in service on the date of issue of the said OM, would be deemed to have switched over to the Pension Scheme. However, the employees of the category mentioned in the OM were given the option to continue under the CPF Scheme. The said switch over was applicable to all the Central Government employees who were subscribing to the Contributory Provident Fund under the CPF Rules, 1962. The switch over was not applicable ipso facto to autonomous bodies under the Central Government Ministries who were subscribing to any other scheme other than the CPF Rules, 1962. The said switch over was applicable to all the Central Government employees who were subscribing to the Contributory Provident Fund under the CPF Rules, 1962. The switch over was not applicable ipso facto to autonomous bodies under the Central Government Ministries who were subscribing to any other scheme other than the CPF Rules, 1962. Hence, the Central Government directed the administrative bodies to issue similar orders for CPF beneficiaries in consultation with the Department of Pensions and Pensioners’ Welfare. The employees of NWDA made representations to NWDA and the Ministry of Water Resources in view of the directions of the OM, pursuant to which the Ministry of Water Resources sought advice from the Ministry of Finance which advised the autonomous bodies to continue to follow the CPF Scheme or work out an annuity scheme. The governing body of NWDA approved introduction of the CPF Scheme for the employees of NWDA. It rejected the proposal for introduction of the pension scheme for NWDA. Some of the employees of NWDA approached the Central Administrative Tribunal assailing the decision of the governing body of NWDA rejecting their request to switch over to the pension scheme. The Tribunal allowed the application of the employees and directed NWDA to implement the OM dated 1 May, 1987 and treat the employees of NWDA as covered under the pension scheme. Being aggrieved, the respondents challenged the Tribunal’s order under Articles 226 and 227 of the Constitution of India. The High Court set aside the Tribunal’s order holding that on a reading of Bye-law 28 of NWDA, the rules and orders applicable to the Central Government employees would apply mutatis mutandis to the employees of NWDA only in cases where NWDA has not framed its own rules and regulations. However, since NWDA had framed its own CPF Rules in 1982, Bye-law 28 had no role to play. The employees carried the matter to the Hon’ble Apex Court. While dismissing the appeals of the employees, the Hon’ble Apex Court observed at paragraphs 15 to 18 of the reported judgment as follows:- “15. In light of the facts and circumstances of this case and the submissions made by the learned counsel on both sides, it can be concluded that NWDA had framed its regulation the CPF Rules, 1982 and they were duly approved by the Governing Body of NWDA. In light of the facts and circumstances of this case and the submissions made by the learned counsel on both sides, it can be concluded that NWDA had framed its regulation the CPF Rules, 1982 and they were duly approved by the Governing Body of NWDA. As NWDA is an autonomous body under the Ministry of Water Resources, it has framed its own bye-laws governing the employees. It has been time and again reiterated that the Court must adopt an attitude of total noninterference or minimal interference in the matter of interpretation of Rules framed by autonomous institutions. In Kerala SRTC vs. K.O. Varghese and Others, (2007) 8 SCC 231 , this Court held: ‘18…….KSRTC is an autonomous corporation established under the Road Transport Corporation Act, 1950. It can regulate the service of its employees by making appropriate regulations it that behalf. 21. The High Court …….is not correct in thinking that there is any compulsion on KSRTC on the mere adoption of Part III of KSR to automatically give all enhancements in pension and other benefits given by the State Government to its employees.’ Thus, as the appellants are governed by the CPF Rules 1982, the O.M. applicable to Central Government employees is not applicable to them. 16. On the issue of parity between the employees of NWDA and Central Government employees, even if it is assumed that the 1982 Rules did not exist or were not applicable on the date of the O.M. i.e. 01.05.1987, the relevant date of parity, the principle of parity cannot be applicable to the employees of NWDA. NWDA cannot be treated as an instrumentality of the State under Article 12 of the Constitution merely on the basis that its funds are granted by the Central Government. In Zee Telefilms Ltd. & Another v. Union of India & Ors., (2005) 4 SCC 649 , it was held by this Court that the autonomous bodies having some nexus with the Government by itself would not bring them within the sweep of the expression 'State' and each case must be determined on its own merits. Thus, the plea of the employees of NWDA to be treated at par with their counterparts in Central Government under sub rule (6)(iv) of Rule 2009 of General Financial Rules, merely on the basis of funding is not applicable. 17. Thus, the plea of the employees of NWDA to be treated at par with their counterparts in Central Government under sub rule (6)(iv) of Rule 2009 of General Financial Rules, merely on the basis of funding is not applicable. 17. Even if it is presumed that NWDA is "State" under Article 12 of the Constitution, the appellants have failed to prove that they are at par with their counterparts, with whom they claim parity. As held by this Court in Union Territory, Chandigarh v. Krishan Bhandari, (1996) 11 SCC 348 , the claim to equality can be claimed when there is discrimination by the State between two persons who are similarly situated. The said discrimination cannot be invoked in cases where discrimination sought to be shown is between acts of two different authorities functioning as State under Article 12. Thus, the employees of NWDA cannot be said to be 'Central Government Employees' as stated in the O.M. for its applicability. 18. Thus, by reason that the employees are governed by NWDA CPF Rules, 1982, the O.M. dated 01.05.1987 is not applicable to the appellant-employees. Further, as they have not established that they are Central Government employees, at par with their counterparts, their claim of parity with Central Government Employees is also defeated.” 45. I am unable to agree with any of the contentions advanced on behalf of the petitioners. Hence, I am unable to grant any relief to the petitioners. However, before concluding I would like to add another reason as to why I am inclined to reject the writ application. 46. Under the CPF Scheme, a retiring employee receives a handsome and lump sum amount. Apparently, it looks much more attractive than the deferred payment of retiral benefits by way of pension every month. A lump sum amount can be invested prudently to generate substantial returns. Further, sometimes an employee may feel that because of the uncertain nature of life and the vagaries of life in general, it would be better to receive a lump sum amount rather than a comparatively trivial amount every month by way of pension. It appears to me that prompted by these factors the petitioners received their retiral benefits under the CPF Scheme without reservation, protest or demur and consciously refrained from opting for the pension scheme. It appears to me that prompted by these factors the petitioners received their retiral benefits under the CPF Scheme without reservation, protest or demur and consciously refrained from opting for the pension scheme. However, with time, the pension scheme became more and more attractive on account of various factors like dearness allowance being calculated in the pay for computing pension, removal of ceiling of pension, liberalization of family pension etc. Hence, the petitioners are now seeking to opt for the pension scheme after passage of a long period of time after their retirements without furnishing any acceptable explanation for the delay. This cannot be permitted. In similar circumstances the writ petition of some of the retired employees of the NBSTC being WP No. 29286(W) of 2015 (Tarapada Biswas-vs.-State of West Bengal) was dismissed by a learned Single Judge of this Court holding, inter alia, as follows:- “The petitioners are a part of the 12 per cent who remained with the contributory provident fund scheme. It is not as if the petitioners did not exercise their option. The petitioners consciously did not apply for a switch over from the CPF to the pension scheme. Thus, in a manner of speaking, the petitioners exercised their option to remain covered by the CPF Scheme. Long after the time to opt for pension had expired, the petitioners must have noticed that the benefits under the pension scheme outweighed the benefits under the CPF scheme. In myriad ways, employees of several organizations attempted to switch over from the less beneficial scheme to the more beneficial and, in some cases, indulgent court orders permitted them to do so. The conduct of the petitioners can be seen as akin to an attempt to purchase the winning ticket after the lottery results have been announced. At the time that the employees were required to exercise their option, the employees could not be sure as to whether the benefits under the one scheme would be more than the benefits under the other. The majority of the employees opted for the pension scheme in the hope that the benefits thereunder would be more. The minority who chose consciously to be covered under the CPF scheme cannot be subsequently permitted to opt for the pension scheme upon it now being evident that the benefits under the pension scheme are more attractive.” 47. The majority of the employees opted for the pension scheme in the hope that the benefits thereunder would be more. The minority who chose consciously to be covered under the CPF scheme cannot be subsequently permitted to opt for the pension scheme upon it now being evident that the benefits under the pension scheme are more attractive.” 47. In view of the aforesaid this writ petition fails and is dismissed, without, however, any order as to costs.