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Gujarat High Court · body

2022 DIGILAW 1046 (GUJ)

Sudhaben Williambhai Baraiya v. State of Gujarat

2022-09-19

A.Y.KOGJE

body2022
JUDGMENT : 1. This two petitions are arising out of the identical facts and are raising the same issues and hence, at the request of both the sides, the same are taken up for joint hearing and final disposal. With consent, the facts are recorded from Special Civil Application No.11129 of 2017, where the respondent on behalf the Corporation has already filed the reply. At request, learned Advocate appearing for the Corporation and with consent of the learned Advocate for the petitioner on principle, the reply filed in this petition be treated as reply to both the petitions. 2. This petition under Article-226 of the Constitution of India is filed with following prayers : “(A) YOUR LORDSHIPS be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus holding that the Petitioners are eligible and entitled to be extended the benefit of pension scheme as per the Circular dated 02.02.1984 at Annexure B, in the interest of justice. (B) YOUR LORDSHIPS be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus directing the Respondents to extend pension and other benefits to the petitioners arising out of Circular dated 02.02.1984 at Annexure B, in the interest of justice.” 3. Essentially, the case of the petitioner is to hold that the petitioner is entitled to benefit of Pension scheme and not be treated as member of the Contributory Provident Fund Scheme. 4. Learned Advocate for the petitioner submitted that the petitioner was working as Staff Nurse in the Medical Hospital managed by the respondent-Corporation and were therefore, thoroughly engaged in their own work and were not aware of the Scheme, which was floated for the purpose of benefit of pension and therefore, the petitioner had not exercised option. It is submitted that in fact the tenor of the Scheme for pension adopted by the respondent-Corporation does not require exercise of option, as the Scheme itself provided by in case, the employee fails to exercise the option of continuing in the Contributory Provident Fund Scheme, then such employee be treated to be beneficiary of the pension scheme and as the petitioners had not exercised such option, automatically, the petitioner will have to be treated as beneficiary of the pension scheme. 5. 5. Learned Advocate for the petitioner has immediately drawn attention of this Court to the Circular No.52 dated 02-02-1984 and submitted that Circular itself suggested the employee, who was in employment prior to 01-01-1983 and was in the Contributory Provident Fund Scheme, had to exercise option, if he had to continue in the Contributory Provident Fund Scheme or else, such employee treated to be beneficiary of newly introduced Pension Scheme. The petitioners therefore, were entitled to believe that as per the parent Circular, they are required to exercise option only if they wanted to continue in the Contributory Provident Fund Scheme and as the petitioners were desirous to receive benefit from newly introduced Pension Scheme, they were not require to exercise any option, as newly introduced Pension Scheme will automatically apply to the petitioners. 6. He thereafter draws attention of this Court the subsequent Circulars and submitted that Office instructions were issued specifically for undertaking exercise of deduction towards the GPF from the salary accounts of employees and therefore also, the petitioners were under bonafide impression that their case is being considered to be beneficiary for Pension Scheme. 7. Learned Advocate for the petitioner has relied upon the decision of the Supreme Court in case of Union of India and another v/s. S. L. Verma and others reported in (2006) 12 SCC 53 to submit that in case of giving option for the purpose of Scheme, those employees who specifically elect to be governed by the Contributory Provident Fund Scheme, only they were required to give option to continue. 8. Learned Advocate for the petitioner has thereafter relied upon the decision of the Division Bench of this Court in case of State of Gujarat v/s. Girishbhai Chimanbhai Patel passed in Letters Patent Appeal No.664 of 2016 dated 04-08-2017, wherein relying upon Clause-2 of that particular Resolution, it was held that the members of the Staff, who were in service on the date of issuance of the Resolution and have not exercised option within stipulated period, are being to have opted for Pension Scheme. 9. 9. Learned Advocate for the petitioner has also relied upon the decision of this Court in case of Mamta Anjan Mazmudar v/s. Ahmedabad Municipal Corporation passed in Special Civil Application No.132 of 2018 dated 05-02-2020, where, also this Court has considered the case of that petitioner on the same line and treated her to be beneficiary for the Pension Scheme, though no option was exercised. 10. As against this, learned Advocate for the respondent submitted that reliance placed by the petitioner exclusively on the Circular of 1984 is uncalled for, as prior thereto also the Circular No.36 dated 25-10-183 was issued, wherein the Municipal Corporation had indicated that those who do not give option in writing for the Contributory Provident Fund Scheme, such employees would be treated as employees under the Pension Scheme. In Circular No.52 also the Corporation had indicated that it was for the employee to exercise option and give such option in the prescribed format to the Corporation, whether they want to continue in the Contributory Provident Fund Scheme or the Pension Scheme. He has also drawn attention of this Court to such ‘Ekrarnama’ and other documents, which were required to be produced by the petitioners along their option. 11. Learned Advocate therefore, submitted that time and again, the respondent-Corporation had come out with periodic Circulars extending time for benefit of the employees to exercise their option whether to continue in the Scheme prevailing prior to 1983 or to change over to other Scheme. The Corporation had liberally published the same. However, it is the petitioners who had failed to exercise their option and have continued in the Contributory Provident Fund Scheme. Not only that, on the date of their retirement, they have received their Contributory Provident Fund, which is substantial amount and have enjoyed it from the date of their retirement. In the present case, from 2012 without any objection and in the year 2017, the petition is filed. 12. Learned Advocate has referred to and relied upon the latest decision of this Court in case of Bindukumari Devdas Christian v/s. State of Gujarat passed in Special Civil Application No.8735 of 2017 dated 18-04-2022, where in the identical facts and circumstances, the stand of the respondent-Corporation was upheld in absence of exercise of option by the petitioners therein. 12. Learned Advocate has referred to and relied upon the latest decision of this Court in case of Bindukumari Devdas Christian v/s. State of Gujarat passed in Special Civil Application No.8735 of 2017 dated 18-04-2022, where in the identical facts and circumstances, the stand of the respondent-Corporation was upheld in absence of exercise of option by the petitioners therein. Learned Advocate has also relied upon the decision of the Apex Court in case of Pepsu Road Transport Corporation, Patiala v/s. Amandeep Singh and others reported in (2017) 2 SCC 766 stating that effect of non-exercise of option within stipulated period would result into giving up of their right to shift from the Contributory Provident Fund Scheme to Pension Scheme. 13. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the petitioner herein as per the service record available with Ahmedabad Municipal Corporation, the Petitioner herein was born on 24/03/1954 and she joined the service of Ahmedabad Municipal Corporation on 01/02/1977 and retired with effect from 31/03/2012 on attaining the age of superannuation. The Petitioner was a member of Contributory Provident Fund Scheme at the time of her retirement and therefore, she was paid an amount of Rs.10,36,734/- lying in her Contributory Provident Fund Account at the time of superannuation. The petitioner was also paid other retiral benefits immediately after retirement. 14. Ahmedabad Municipal Corporation was having Contributory Provident Fund Scheme for the welfare of its employees, but later on introduced a Pension Scheme with effect from 01/01/1983 through a Circular dated 25/10/1983. Thereafter another Circular dated 02/02/1984 was issued through which it is made clear that the Pension Scheme would be applicable compulsorily to the employees who joined the service after 01/01/1983, but an option form will have to be submitted by the employees who were already in service in 01/01/1983 opting for Pension Scheme or Contributory Provident Fund Scheme. 15. There was confusion about the pros & cons of Pension Scheme and Contributory Provident Fund Scheme and therefore, another Circular No.71 dated 28/03/1984 was issued instructing the employees to intimate the authority about their option for Pension Scheme. Thereafter through another Circular No.10 dated 31/05/1984 the employees of the Corporation were again given an opportunity to submit their option form for Pension Scheme latest by 30/06/1984 with a clear instructions that thereafter such benefit would not be granted. Thereafter through another Circular No.10 dated 31/05/1984 the employees of the Corporation were again given an opportunity to submit their option form for Pension Scheme latest by 30/06/1984 with a clear instructions that thereafter such benefit would not be granted. However, again the time limit was extended up to 31/03/1985 through another Circular No.65 dated 25/01/1985. In the interest of employees who joined the service prior to January, 1983, it was thought flit to issue another Circular N.72 dated 25/01/1991 granting one more opportunity for submission of option form for Pension Scheme. 16. It is pertinent to note that those who opted for Pension Scheme were required to give up their Contributory Provident Fund Scheme Account and open a General Provident Fund Account with the authority for necessary procedure and calculation. The employees who were opting for Pension Scheme were required to submit their Form in this regard also. In other words, the Respondent No.3 Corporation has time and again extended time limit for submitting the option form. Subsequently another Circular No.13 dated 12/05/2000 was issued in this regard and lastly a Circular No.13 dated 29/05/2001 was issued instructing the employees to submit their option form latest by 30/06/2001. 17. Learned Advocate for the petitioner has relied upon the decision of the Division Bench of this Court passed in in case of State of Gujarat v/s. Girishbhai Chimanbhai Patel passed in Letters Patent Appeal No.664 of 2016 dated 04-08-2017, wherein in Para-11 and Para-12, the Court was considering Clause-2 of the Government Resolution dated 17th January, 1996 and with reference to the Staff, who were in service on the date of issuance of such Resolutions and who have not exercised option within stipulated period, were deemed to have opted for the Pension Scheme. The Court has also observed that the petitioners’ case that they had exercised option within stipulated period and had opted for the Pension Scheme. In those facts, in Para-12, the Court had proceeded to consider those petitioners to have deemed to have opted for the Pension Scheme. However, it is pertinent to observe that the Court was considering the Resolution, which was of identical nature, but completely different Resolution meant for the Government Servants under the State. In those facts, in Para-12, the Court had proceeded to consider those petitioners to have deemed to have opted for the Pension Scheme. However, it is pertinent to observe that the Court was considering the Resolution, which was of identical nature, but completely different Resolution meant for the Government Servants under the State. There was no occasion for the Court to consider the subsequent Circulars as are found in the present case, which had required employees to exercise their option specifically whether they want to continue in the Contributory Provident Fund Scheme or to shift over to the Pension Scheme. From the facts, it is evident that Circulars were followed by several other Circulars and from time to time, period was extending for exercising option, but in the case of the petitioners, who had appointed in the year 1977, were required to exercise option in the year 1984, have continued in the Contributory Provident Fund Scheme as periodically amount was being deducted from their salary for the said purpose and on the date of their retirement, the petitioners have received lump sum benefit of the Contributory Provident Fund Scheme, which the petitioners have enjoyed. It appears that after almost period of 7 years of having received Contributory Provident Fund, the petitioners are having second thought and perhaps for better monetary gain, have changed their stand, as if they are required to be treated as optee of the Pension Scheme. 18. Dealing with the similar set of facts, Coordinate Bench have taken the view that after prolonged period, the employee cannot be permitted to exercise option to continue with the Contributory Provident Fund Scheme or to join the pension scheme. 19. In CAV Judgment of this Court in case of Karl Marx General Labour Union (Ahmedabad Municipal Corporation) v/s. Ahmedabad Municipal Corporation passed in Special Civil Application No. 5799 of 2011 dated 29-06-2012, facts were elaborately considered and ultimately in Para-17, this Court has held as under : “17. 19. In CAV Judgment of this Court in case of Karl Marx General Labour Union (Ahmedabad Municipal Corporation) v/s. Ahmedabad Municipal Corporation passed in Special Civil Application No. 5799 of 2011 dated 29-06-2012, facts were elaborately considered and ultimately in Para-17, this Court has held as under : “17. In an institution where pension scheme was sanctioned making it effective from 1.1.1983 by the State Government any dilemma on the part of the employees cannot be entertained at a sweet will of such employee as that would have far reaching effect on the financial aspect of the respondent-Corporation and, therefore, those employees, who have not acted within time bound schedule or if once having already acted upon the schedule, cannot be allowed to approbate or reprobate.” 20. Similarly, another Coordinate Bench in bunch of petitions has passed Common Oral Order dated 04-05-2022 in case of Gitaben Amrutbhai Shete v/s. State of Gujarat passed in Special Civil Application No.4869 of 2021 and allied matters rejecting the case of the petitioner there by relying upon the decision of the Coordinate Bench in case of Bindukumari Devdas Christian v/s. State of Gujarat passed in Special Civil Application No.8735 of 2017 dated 18-04-2022. 21. In view of the aforesaid, the Court is of the view that no case is made out for any interference in the matter. In view of the aforesaid, both these petitions deserve to and are hereby dismissed. Rule is discharged. No order as to costs.