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2022 DIGILAW 2262 (RAJ)

A. S. Jhala S/o Late Roop Singh Jhala v. State Of Rajasthan, Through The Chief Secretary, Agriculture Department

2022-08-18

KULDEEP MATHUR, SANDEEP MEHTA

body2022
JUDGMENT : Per Mehta, J. 1. These intra court appeals are directed against the common order dated 04.01.2022 passed by the learned Single Bench of this Court rejecting the writ petitions preferred by the petitioners appellants for assailing the order dated 01.08.2019 passed by the respondents Maharana Pratap University of Agriculture and Technology (hereinafter referred to as ‘the MPUAT’) whereby, payment of pension being made to the petitioners was stopped. 2. The controversy in brief may be summarized as below:- The appellants herein were serving in the Rajasthan Agriculture University, Bikaner at the relevant point of time. A notification dated 17.08.1991 was issued by the Rajasthan Agricultural University, Bikaner introducing Pension Scheme for the employees of the University. Before that, all employees of the University were availing the Contributory Provident Fund Scheme (hereinafter referred to as ‘the CPF scheme’). The Pension scheme which came into force w.e.f. 01.01.1990 gave an option to the employees to switch from the CPF Scheme to the Pension Scheme. The scheme mandated exercise of switching option upon the employees of University within the stipulated time and in the event of failure to submit the option, an automatic consequence was provided that the employees would be deemed to have opted for the Pension Scheme. It is an admitted case that the appellants herein submitted the option for the CPF scheme within the stipulated time of three months from the date of notification. However, they claim that the Dean failed to forward their option forms to the University and thus, by virtue of deeming clause supra, the petitioners were treated as covered under the Pension Scheme. The petitioners have buttressed that their option of CPF was never acted upon/accepted and for this purpose, reliance is placed on a communication dated 25.08.2014. The appellants writ petitioners have also asserted that their names did not reflect in the list of employees who had opted for the CPF Scheme and thus, by implication of the deeming clause under the Pension Scheme, they were required to be treated as employees under the Pension Scheme. However, to the utter surprise and shock of the appellants writ petitioners, a communication dated 01.08.2019 was issued whereby, payment of pension to the petitioners was stopped. However, to the utter surprise and shock of the appellants writ petitioners, a communication dated 01.08.2019 was issued whereby, payment of pension to the petitioners was stopped. The appellants writ petitioners assailed the said order by filing the writ petitions (supra) which have been rejected by the learned Single Bench by common order dated 04.01.2022 which is assailed in these intra court appeals. 3. Shri Vikas Balia, learned Senior Counsel assisted by Shri S.S. Rathore, Advocate representing the appellants, vehemently and fervently urged that it was clearly indicated in the Pension Scheme that those employees, who did not submit the consent forms, would be deemed to have opted for the Pension Scheme. The respondents themselves accepted the position that the petitioners appellants had not submitted their consent forms to opt for the CPF Scheme and as a consequence, they were treated under the Pension Scheme. However, without any justification and in gross violation of the principles of the natural justice, the respondents passed the order dated 01.08.2019 stopping pension being paid to the petitioners as per their right under the Pension Scheme. Shri Vikas Balia further urged that the option form on which, the respondents placed reliance, was not prepared in accordance with the mandatory requirement of the Pension Scheme, 1991 and thus, the respondents were precluded from digging out the invalid option forms and stopping the pension being paid to the petitioners for almost two decades. Shri Balia submitted that the option to remain under the CPF Scheme was not submitted in the form provided under the scheme and thus also, the respondents acted illegally in resorting to the said option form after a delay of nearly 18 years. In support of his contentions, Shri Balia has placed reliance on the following judgments: (i) Banglore Turf Club Ltd. Vs. Regional Director, Employers State Insurance Corporation reported in (2014)9 SCC 657 ; (ii) Union of India & Anr. Vs. Abriram Verma reported in 2021 Supreme 166 ; (iii) M/s. Delhi Airtech Services Pvt. Ltd. & Anr. Vs. State of UP & Anr. reported in (2011)9 SCC 354 ; (iv) The Maharashtra State Road Transport Corporation Vs. Babu Goverdhan Regular Motor service Warora & Ors. reported in (2020)5 SCC 757 ; (v) New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. reported in (2020)5 SCC 757 (vi) Nasiruddin & Ors. Vs. Vs. State of UP & Anr. reported in (2011)9 SCC 354 ; (iv) The Maharashtra State Road Transport Corporation Vs. Babu Goverdhan Regular Motor service Warora & Ors. reported in (2020)5 SCC 757 ; (v) New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. reported in (2020)5 SCC 757 (vi) Nasiruddin & Ors. Vs. Sita Ram Agarwal reported in (2003)2 SCC 577 ; (vii) Babu Verghese & Ors. Vs. Bar Council of Kerala. reported in (1999)3 SCC 422 ; (viii) State of Rajasthan Vs. Dr. A.N. Mathur reported in (2014)13 SCC 531 ; (ix) State of UP & Ors. Vs. Jeet S. Bisht reported in (2007)6 SCC 586 ; and (x) D.J. Malpani Vs. Commissioner of Central Exercise, Nashik reported in (2019)9 SCC 120 , and implored the Court to set aside the impugned orders and direct the respondents to resume the pension being paid to the petitioners before passing of the order dated 01.08.2019. 4. Per contra, Shri G.R. Punia, learned Senior Counsel assisted by Shri Mahaveer Bhanwariya, Advocate representing the respondent Rajasthan Agriculture University and Shri K.S. Rajpurohit, learned AAG representing the State, vehemently and fervently opposed the submissions advanced by the appellants’ counsel. They urged that the controversy involved in these appeals is no longer res integra in view of authoritative pronouncement of Hon’ble the Supreme Court in the case of State of Rajasthan Vs. Dr. A.N. Mathur reported in (2014)13 SCC 531 . They urged that there is no dispute on the aspect that the appellants petitioners had submitted their options for continuing under the CPF Scheme. By virtue of this admitted factual position, the appellants petitioners cannot take advantage of the bonafide error of the concerned officers of the University, who erroneously treated the appellants petitioners as being covered under the Pension Scheme contrary to the option submitted by them. They urged that there was no requirement under the scheme that the option form submitted by the employee concerned would be enforceable only with express approval of the University. The consequence of submission of the option form was automatic and no sooner, the employee concerned gave his option, no discretion was left with the University to treat him/her otherwise. They urged that there was no requirement under the scheme that the option form submitted by the employee concerned would be enforceable only with express approval of the University. The consequence of submission of the option form was automatic and no sooner, the employee concerned gave his option, no discretion was left with the University to treat him/her otherwise. They further urged that as per the notification dated 17.08.1991, the requirement of submitting the option in writing under the prescribed form was only when the employee concerned chose to change his position and craved to be governed by the Pension Scheme. Those who were already taking benefit of the CPF scheme, were just required to indicate their desire to continue under the said scheme. They urged that the hypertechnical contention of Shri Balia that the appellants petitioners did not give the option for being continued under the CPF scheme in the prescribed form and thus, by the deeming clause of notification dated 17.08.1991, they were required to be treated as automatically having opted for the pension Scheme, is totally unacceptable. Learned Senior Counsel Shri Punia submitted that the appellants herein were originally the employees of the Rajasthan Agricultural University, Bikaner. Thereafter, the Maharana Pratap University of Agriculture and Technology was created and during this period, concerned officers failed to deal with relevant forms etc. in an appropriate manner and that is why, the appellants petitioners were inadvertently treated under the Pension Scheme in ignorance of the mandatory requirement of Notification dated 17.08.1991 as per which, the employees who had given their consent for being governed under the CPF scheme, were required to be continued thereunder. 5. We have given our thoughtful consideration to the submissions advanced at bar and, have gone through the material available on record. 6. There is no dispute by the appellants petitioners that they were being governed by the CPF Scheme prior to the coming into force of the Scheme of 1991. Post issuance of the Pension Scheme vide notification dated 17.08.1991, they gave their options for continuing under the existing CPF scheme. 6. There is no dispute by the appellants petitioners that they were being governed by the CPF Scheme prior to the coming into force of the Scheme of 1991. Post issuance of the Pension Scheme vide notification dated 17.08.1991, they gave their options for continuing under the existing CPF scheme. For being governed by the deeming/default clause (supra), the appellants petitioners have tried to assert that as the option for continuance under the existing CPF scheme was not submitted in the prescribed form and since the same did not bear signatures of two witnesses, it was a forgone conclusion that they were covered by the provision of non-exercise of option leading to deemed consequence of being covered under the Pension Scheme, 1991. In this regard, it would be fruitful to reproduce the relevant parts of the Notification dated 17.08.1991, the University Pension Regulations, 1990 and the prescribed ‘Form of Option’:- NOTIFICATION DATED 17.08.1991 “Thus all employees who were in service on 1.1.1990 shall have to exercise their option in writing, either for the pension scheme under these regulations or for continuance under the existing C.P.F. Scheme, within 3 months from the date of notification of this provision and shall submit the same to the Comptroller, Rajasthan Agriculture University, Bikaner in the prescribed form. The existing employees who do not exercise option within the period specified under these regulations shall be ‘deemed to have opted’ for the pension scheme. Option once exercised shall be final and irrevocable.” University Pension Regulations, 1990 Reg 4 : Exercise of Option : “All existing employees who were in service on 1.1.1990 shall have to exercise their option in writing, either for the pension scheme under these regulations or for continuance under the existing C.P.F. Scheme, within 3 months from the date of notification of these regulations and shall submit the name to the Comptroller of Finance/Finance Officer in the prescribed form. Provided that :- (1) The existing employees who do not exercise option within the period specified under the regulations shall be deemed to have opted for the pension scheme. Option once exercised shall be final and irrevocable.” ‘FORM OF OPTION’ In pursuance of Regulation 4 of the University of …………………………………Pension Regulations, 1990, I………………………S/o Shri…………………….Designation………………………..and contributor to the Contributory Provident Fund Account No………. Option once exercised shall be final and irrevocable.” ‘FORM OF OPTION’ In pursuance of Regulation 4 of the University of …………………………………Pension Regulations, 1990, I………………………S/o Shri…………………….Designation………………………..and contributor to the Contributory Provident Fund Account No………. hereby opt for the pensionary benefits admissible in terms of the University of ………………….Pension Regulations, 1990 for the period for which subscription/contribution was/is made to the Contributory Provident Fund/Pension Fund in lieu of Contributory Provident Fund benefits. I hereby declare that I am getting proportionate pension of Rs……… p.m. in lieu of the period of service from ……. to……. rendered under the State/Central Government. My pension payment order No. is…………………. (Strike-out whichever is not applicable) I, hereby, agree to abide by the aforesaid Regulations. Witness : Signature Signature Date Date Name in full Name in full (in block letters) (in block letters) Designation Designation Office Office. ACCEPTED Countersigned. Dated signature of the office with seal.” A bare perusal of the language of the Notification dated 17.08.1991, clause 4 of the University Pension Regulations, 1990 and the Form of Option on which, heavy reliance was placed by Shri Balia, makes it clear that the form which was prescribed under the regulations, was only to be filled by those employees who were consciously opting to shift into the Pension Scheme. The employees who decided to continue under the existing CPF scheme, were only required to convey their intention in this behalf in writing to the University. There is no dispute that the appellants petitioners conveyed their intention to the University that they would continue under the CPF Scheme rather than “opting for the pension scheme in the prescribed form”. Thus, they cannot be allowed to take advantage of the deeming option provision under the Notification and the Pension Scheme, referred to supra. 7. We have thoroughly perused the judgment rendered in the case of Bangalore Turf Club Ltd. (supra) relied upon by Shri Balia and find that the same is of no relevance to the present controversy. In the judgment of Union of India & Anr. Vs. Abaram Verma (supra), Hon’ble the Supreme Court observed that when legislature, in its wisdom, brings forth certain provisions in the form of pension regulations from a particular date and on particular terms and conditions and aspects which are excluded, cannot be included in it by implications. In the judgment of Union of India & Anr. Vs. Abaram Verma (supra), Hon’ble the Supreme Court observed that when legislature, in its wisdom, brings forth certain provisions in the form of pension regulations from a particular date and on particular terms and conditions and aspects which are excluded, cannot be included in it by implications. In the controversy at hand, no such situation exists because the exclusion of the appellants petitioners from the Pension Scheme is of their own choosing. In the case of M/s. Delhi Airtech Services Pvt. Ltd. (supra)., Hon’ble the Supreme Court reiterated the well settled principles of statutory interpretation that the Courts would neither add nor subtract from the plain language of the statutory provision. The said judgment is also of no avail to the petitioners. In the case of Naseeruddin (supra), Hon’ble the Supreme Court interpreted the words ‘shall’ and ‘may’ and reversed the view taken by the High Court on this principle of statutory interpretation. However, no such controversy prevails in the cases at hand. 8. We rather feel that the controversy involved in these appeals is squarely covered by the judgment of Hon’ble the Supreme Court in the case of State of Rajasthan Vs. Dr. A.N. Mathur (supra wherein, while dealing with the self same issue, Hon’ble the Supreme Court considered the facts and accepted the Special Leave to Appeal, reversed the judgment of the Division Bench of High Court and affirmed the order of the State Government whereby, benefits of Pension Scheme wrongly extended to the peers of the appellants herein, were withdrawn and recovery was directed. 9. In wake of the discussion made hereinabove, we are of the firm view that the impugned order dated 01.08.2019 passed by the respondent University and so also the impugned order dated 04.01.2022 passed by the learned Single Bench of this Court, do not suffer from any illegality and infirmity warranting interference in these intra court appeals which fail and are hereby dismissed as being devoid of merit. 10. No order as to costs. 11. A copy of this order be placed in each file.