Bombay High Court
Shashikant S.Chunekar And Ors vs Union Of India Through The ... on 21 November, 2025
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2025:BHC-AS:50481-DB
Digitally signed
by ARUNA
ARUNA SANDEEP
SANDEEP TALWALKAR
TALWALKAR Date:
2025.11.21
18:51:34 +0530 WP-908.2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 908 OF 2021.
(1) Shri Shashikant S. Chunekar,
aged 70 years,
lastly working as Accountant,
at Export Inspection Agency Mumbai,
(Ministry of Commerce, Govt. of India),
Pilot Test ) House, E-3 MIDC, Andheri (E),
Mumbai-400 093 and residing at
A/203, Shivyog CHS Ltd., Sambhaji
Nagar, Ashokvan, ) ) Dahisar (East),
Mumbai - 400 068.
(2) Shri Madhukar S Parab, aged 72 years,
lastly working as Office Assistant
at Export Inspection Agency Mumbai,
(Ministry of Commerce, Govt. of India)
Pilot Test House, E-3 MIDC, Andheri (E),
Mumbai - 400 093 and residing
at A/402, Shashanka CHS Ltd.,
Eksar Road, Borivali (West),
Mumbai - 400 091.
(3) Shri Nanda Dulal Saha, aged 72 years,
lastly working as an Lab Assistant Gr. I
at Export Inspection Agency Mumbai,
(Ministry of Commerce, Govt. of India)
Pilot Test House, E-3 MIDC, Andheri (E),
Mumbai-400 093 and residing at D/103,
Ranjita CHS Ltd., D. N. Mhatre Road,
Eksar, Borivali (West), Mumbai-400 091.
(4) Shri Sonu V. Bhagat, aged 66 years,
lastly working as Care Taker Grade II at
Export Inspection Agency Mumbai,
(Ministry of Commerce, Govt. of India)
Pilot Test House, E-3 MIDC, Andheri (E),
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Mumbai-400 093 and residing at H. No.
2326, Near Shantadurga Bhumika Hall,
Gokulwadi Sanquelim, Goa-403505.
(5) Shri Jaiprakash K. Sharma, aged 66 years,
lastly working as Laboratory Attendant at
Export Inspection Agency Mumbai,
(Ministry of Commerce, Govt. of India)
Pilot Test House, E-3 MIDC, Andheri (E),
Mumbai - 400 093 and residing at Mangal
Bhawan, Room No. C-8, Chimat Pada,
Marol Naka, Andheri (East),
Mumbai-400 059.
(6) Shri Sudarshan Singh Kushwaha,
aged 72 years, lastly working as Laboratory
Assistant Grade - II at Export Inspection
Agency Chennai, (Ministry of Commerce,
Govt. of India), 6th Floor CMDA Tower II,
1 Gandhi Irwin Road, Egmore,
Chennai-600 008 and residing at
House No. 98, Koshi Gali,
Kolhapur - 416216.
(7) Shri Viswanath Kumar Chougala -
since Deceased - lastly working as
Assistant Director (T) at
Export Inspection Agency
Chennai (Ministry of Commerce,
Govt. of India) 6th Floor CMDA Tower II,
1 Gandhi Irwin Road, Egmore,
Chennai-600 008
represented by his widow,
Smt. Shakuntala V Chougala, aged 68 years
And residing at Flat 103, D-1 Lunkad )
Queensland, Viman Nagar, Pune 411014 ... Petitioners.
Versus
(1) Union of India through the Secretary,
Department of Commerce
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Ministry of Commerce and Industry
Government of India, Udyog Bhavan,
New Delhi-110 107.
(2) The Chairman, Export Inspection
Council, Department of Commerce,
Ministry of Commerce and Industry,
Govt. of India, Udyog Bhavan,
New Delhi-110 107
(3) The Director (I & QC), Export
Inspection Council, Department
of Commerce, Ministry of Commerce
and Industry, Govt. of India,
2nd floor, B-Plate) Block-1,
Commercial Complex, East
Kidwai Nagar, New Delhi-110 023
(4) The Deputy Director In-charge
Export Inspection Agency Mumbai,
Ministry of Commerce & Industry,
Government of India, Pilot
Test House, E-3, MIDC,
Andheri (E), Mumbai-400 093.
(5) The Deputy Director In-charge
Export Inspection Agency Chennai,
Ministry of Commerce, Govt. of India,
6th Floor CMDA Tower II,
1 Gandhi Irwin Road, Egmore,
Chennai - 600 008 . ... Respondents.
---
Mr. Ramesh Ramamurthy a/w. Mr. Saikumar Ramamurthy, Ms. Seema
Sorte, Advocate for Petitioners.
Mr. S.L. Shekokare, i/b. Mr. Sachin Chandan, Advocate for Respondents.
CORAM : RAVINDRA V. GHUGE AND
ASHWIN D. BHOBE, JJ.
Talwalkar 3
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RESERVED ON : 25th SEPTEMBER, 2025.
PRONOUNCED ON : 21st NOVEMBER, 2025.
JUDGMENT :
(PER ASHWIN D. BHOBE, J)
1. Heard Mr. Ramesh Ramamurthy, learned Advocate for the
Petitioners and Mr. Shekokare, learned Advocate for Respondents.
2. Rule. Rule made returnable forthwith and heard finally with
the consent of the learned Advocates appearing for the parties.
3. Petitioners who are the ex-employees of the Export
Inspection Council (EIC) and Export Inspection Agency (EIA), by this
Petition filed in the year 2021, under Article 226 of the Constitution of
India are seeking directions against the Respondents to treat each of the
Petitioners as Pension optees; for grant of pensionary benefits under
Export Inspection Council, Pension and General Provident Funds Rules,
1981; and for consequent changes in their service records, to reflect
their status as Pension optees.
4. Export Inspection Council was established by the
Government of India, under Section 3 of the Export (Quality Control and
Inspection) Act, 1963, for development of export trade of India through
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quality control and inspection, prior to shipment/export and matters
connected therewith. It operates under the administrative control and
supervision of the Department of Commerce, Ministry of Commerce and
Industry, Government of India. Petitioners joined the services of EIC /
EIA prior to 24.10.1981. Since inception of EIC and EIA upto
23.10.1981, the employees of EIC and EIA were governed by the
Contributory Provident Fund Scheme (CPF Scheme).
5. Respondent No.1, vide Notification bearing No. S.O. 2922
dated 24.10.1981, published in the Official Gazette, notified the Export
Inspection Council, Pension and General Provident Fund Rules, 1981
("Pension and GPF Rules, 1981"). Notification dated 24.10.1981 is
extracted herein below:
"NOTIFICATION
New Delhi, the 24th October, 1981,
S.O. 2922. - In exercise of the powers conferred by
Section 17 of the Export (Quality Control and Inspection)
Act, 1963 (22) of 1963), the Central Government hereby
makes following rules, namely:
1. (1) These rules may be called the Export
Inspection Council, Pension and General Provident Fund
Rules, 1981.
(2) They shall come into force on the date of
their publication in the Official Gazette.
2. The benefit of (i) the Central Civil Services
(Pension) Ruses, 1972 as amended from time to time; and
(ii) the General Provident Fund (Central Services) Rules,
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1960 as amended from time to time be extended to all the
whole-time and regular employees of the Export
Inspection Council and the following organisations
constituted under the aforesaid Act, namely:-
(a) The Export Inspection Agency, Bombay;
(b) The Export Inspection Agency, Delhi;
(c) The Export Inspection Agency, Calcutta:
(d) The exeport Inspection Agency, Madras; and
(e) The Export Inspection Agency, Cochin.
Provided that those employees who entered into the
service prior to the date of issue of this notification and
were governed by the Contributory Provident Fund Rules
of the Ex-port Inspection Council of Export Inspection
Agency, as the case may be, shall be given an option to
continue to be governed by the said rules and the Death-
cum-Retirement Gratuity Scheme notified under
Notifications S.O. Nos. 1607 and 1608 dated the 30th May,
1981. The option referred to above shall be exercised in
writing not later than 31-3-1982 and the options once
exercised shall be treated as final."
(emphasis supplied)
6. The cut off date for exercising the option, referred to in the
Notification bearing No. S.O. 2922 dated 24.10.1981, was extended
from time to time by the following Circulars / Office Memorandum:
Sr. No. Particulars Date of the Extended Time
Circulars / Office
Memorandum
1. Circular issued by Export 03.04.1982 30.04.1982
Inspection Council.
2. Circular issued by Export 17.05.1982 30.06.1982
Inspection Council.
3. Circular issued by Export 29.06.1982 31.12.1982
Inspection Council.
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4. Circular issued by Export 14.12.1982 31.03.1983
Inspection Council.
5. Circular issued by Export 13.10.1983 31.12.1983
Inspection Council.
7. Government of India, Ministry of Personnel, Public
Grievance and Pensions Department of Pension and Pensioners' Welfare,
issued Notification dated 01.05.1987 with respect to the changeover of
the employees from CPF Scheme to Pension Scheme. Said Notification
dated 01.05.1987 contemplated that all CPF beneficiaries who were in
service as on 01.01.1986 would be deemed to have " come over" to the
Pension Scheme on the date, unless a contrary option was exercised by
them in writing by 30.09.1987, to continue under the CPF Scheme. The
cut-off date for exercise of option under the Notification issued on
01.05.1987 was extended to 31.10.1987, vide Circular dated 02.07.1987.
8. The Petitioners contend that none of the Petitioners had
opted to continue with the CPF Scheme in response to the Notification
No. S.O. 2922 dated 24.10.1981 issued by the Respondents at the time
of notifying the Pension and GPF Rules, 1981, thus according to the
Petitioner by the operation of the deeming legal fiction created by the
Pension and GPF Rules, 1981, all the Petitioners became entitled to
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receive pension and gratuity as retirement benefits on superannuation or
on taking voluntarily retirement.
9. Respondent Nos. 2 to 5 in the counter affidavit dated
23.03.2022 contested the aforementioned claim. They contend that the
time limit for providing options under the Pension and GPF Rules, 1981
was extended from time to time, to permit sufficient time to the
employees to take a conscious call in their best interest. They contend
that the Petitioners had given option in the prescribed format to continue
under the CPF Scheme within the cut-off date (extended cut off date).
They contend that the Petitioners opted to continue under the CPF
Scheme, the same being more beneficial at the relevant time. They
contend that the fact of the Petitioners having repeatedly given their
options to continue under the CPF Scheme, clearly established the well
considered and conscious decision of the Petitioners to continue under
the CPF Scheme.
10. Petitioners filed rejoinder affidavit dated 24.06.2022
reiterating their stand in the Petition.
11. Mr. Ramesh Ramamurthy, learned Advocate for the
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Petitioners submits that the Petitioners did not opt for continuing under
the CPF Scheme in writing before the cut-off date i.e. 31.03.1982, as
such, the Petitioners are required to be treated as having been covered by
the Pension and GPF Rules, 1981, by way of deemed fiction. He submits
that on the date of issuance of the Office Memorandum dated
01.05.1987, the Pension and GPF Rules, 1981 was already in force in
the EIC/EIA with identical deeming provisions to bring all employees
under the Pension Scheme barring those who consciously opted to
continue under the CPF Scheme, therefore, the said Office Memorandum
dated 01.05.1987 was effectively applicable to only those employees in
EIC and EIAs who during the period 24.10.1981 to 31.03.1982, had
opted to continue to remain under CPF Scheme.
12. Mr. Shubham L. Shekokare, learned Advocate for the
Respondents submits that the cut off date i.e. 31.03.1982 as mentioned in
the Notification dated 24.10.1981 was extended from time to time, vide
various Circulars / Office Memorandums. He submits that the Petitioners
after considering the benefits under the CPF Scheme, had voluntarily, of
their own free will consciously opted for the CPF Scheme. He submits
that it is after 30 years, that the Petitioners are attempting to take U-turn
by filing the present Petition. He submits that the Petitioners have
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suppressed the fact and the documents indicating the Petitioners having
exercised the option in the prescribed format to continue in the CPF
Scheme on more than one occasion during, the extended time limit of the
Pension and GPF Rules, 1981.
13. From the rival contentions of the parties, the point that falls
for consideration is whether the Petitioners having exercised the option
to continue with the CPF Scheme, would be entitled to switch over to the
Pension Scheme?
14. Upon the coming into force of the Pension and GPF Rules,
1981, the following consequences followed:-
(a) The employees entering service of EIC and
EIAs on or after 24th October 1981 automatically became
members of Pension and General Provident Fund Scheme
under the said Rules of 1981;
(b) Those employees who entered service of EIC
and EIAs prior to 24th October 1981 and who exercised option
by 31st March 1982 to be continued under the CPF Scheme,
were to be treated as CPF optees and option so exercised was
to be treated as final;
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(c) All other employees of EIC and EIAs, who
joined service prior to 24th October, 1981and who did not
exercise option to continue under the CPF Scheme, were to be
automatically deemed to be covered by the said Pension Rules
of EIC and EIAs with effect from 24th October, 1981.
15. Notification dated 01.05.1987 contemplated two situations:
firstly, the deeming provision in terms of which the employee concerned
was taken to have "come over" to GPF Scheme; and secondly, the
situation being where a conscious option was exercised before the cut-
off date to continue to remain under CPF Scheme".
16. Respondents are on record to state that the Petitioners had
exercised their option to continue with the CPF Scheme on more than
one occasion. In paragraph No. 11 of the affidavit in reply dated
23.03.2022, the Respondents have summarized the options exercised by
the Petitioners from time to time after the Notification dated 24.10.1981
and the Notification dated 01.05.1987. Said chart is extracted herein
below :
Sr. No. Name of Petitioner Documents
1 Shashikant S. Option dated 30.03.1983 by petitioner to
Chunekar continue in CPF
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Option dated 17.03.1986 by petitioner to
continue in CPF
Option dated 29.07.1987 by petitioner to
continue in CPF
Request for salary certificate dated
10.12.1979, 12.3.1980, 2.4.1983, 19.9.1983,
5.4.1984, 22.01.1987, 20.06.1988,
01.07.1988, 15.10.1988, 25.9.1991 And
15.12.1995
2 Madhukar S. Parab Option dated 28.03.1983 by petitioner to
continue in CPF
Option dated 15.03.1986 by petitioner to
continue in CPF
Option dated 14.10.1987 by petitioner to
continue in CPF
Request for salary certificate dated
23.6.1979, 4.3.1980, 24.10.1980,
16.11.1981, 9.12.1982, 16.9.1983, 3.2.1984,
4.8.1987, 20.6.1988, 22.7.1989, 18.12.1990,
17.7.1997, 13.8.1998, 22.1.1999, 5.3.1999,
18.8.1999 and 13.4.2007
3 Nanda Dulal Saha Option dated 30.04.1982 by petitioner to
continue in CPF
Option dated 15.03.1983 by petitioner to
continue in CPF
Option dated 24.08.1987 by petitioner to
continue in CPF
Request for salary certificate dated
16.11.1995 and 26-9-1996
4. Sonu V. Bhagat Option dated 09.03.1983 by petitioner to
continue in CPF
Option dated 31.03.1986 by petitioner to
continue in CPF
Option dated 27.07.1987 by petitioner to
continue in CPF
Request for salary certificate dated
11.1.1984,19.11.2003
5 Jaiprakash K. Option dated 31.03.1983 by petitioner to
Sharma continue in CPF
Option dated 21.03.1986 by petitioner to
continue in CPF
Option dated 16.07.1987 by petitioner to
continue in CPF
Request for salary certificate 20.9.1980 and
24.10.1980 and 01.05.2013
6 Sudarshan Singh Option dated 22.03.1983 by petitioner to
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Kushwaha continue in CPF
Option dated 21.03.1986 by petitioner to
continue in CPF
Option dated 01.08.1987 by petitioner to
continue in CPF
7 Shakuntala Option dated 30.04.1982 by petitioner to
V.Chougala, widow continue in CPF
of Lt. Viswanath K Option dated 16.03.1983 by petitioner to
Chougala continue in CPF
Option dated 15.03.1986 by petitioner to
continue in CPF
17. The "Form of option" referred to in the Notification dated
24.10.1982 and the Office Memorandum dated 01.05.1987, are extracted
herein below:
a. Option Form in terms of the Notification dated 24.10.1982
ANNEXURE
OPTION
Having understood the comparative advantage and disadvantages
Pensionary and Provident Fund benefits as applicable in my case.
@ i) I opt for the Export Inspection Counci1 Pension and General
Provident Fund Rules 1981 extending the benefit of the Central
Civil Services (Pension) Rules 1972 as amended from time to time
and General Provident Fund Rules 1960 as amended from time to
time.
@ ii) I opt to continue under the existing Contributory Provident
Fund benefits.
Witness : Signature.................
Signature................... Date ...................
Name in full ( in Block letters) Name in full ( in Block letters)
Designation................... Designation...................
Office .................... Office ....................
CERTIFICATE
Applicable only in the case of Group 'D' and illiterate employees
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and to be signed by a responsible officer of the Administration
Branch of the Office concerned.)
The rules were explained to Shri............in my presence.
Signature..................
Name in full ( in Block letters)
Designation...............
b. Option Form in terms of the Office Memorandum dated 01.05.1987:
FORM OF OPTION
I ................................. employed as ................ designation
............................................ in the
Ministry/Department/office of ........................(Name of the
Ministry/Department/Office) do hereby opt to continue under the
Contributory Provident Fund Scheme interms of the Department of
Pension and Pensioners' Welfare O.M. No. 4/1/87 - EIC - I dated
1.5.87.
(Signature of Optee)
Place ..............
Date ..............
18. The Petitioners were working as Accountant, Office
Assistant, Lab Assistant Grade I, Care Taker Grade II and Lab Assistant
Grade II in the EIC / EIA. Records placed before us by the Respondents
indicate that the Petitioner Nos. 1 to 6 having made a conscious choice
based on whatever was beneficial to them at that point in time and
exercised their option in terms "Form of Option", to continue to be
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governed by the CPF Scheme. Said option was exercised before the cut
off date.
19. The Pension Scheme gave an option to the employees who
desired to continue under the CPF Scheme. Petitioners had the option to
join the Pension scheme or to continue the CPF Scheme on more than
one occasion. As per paragraph No. 11 of the affidavit in reply dated
23.03.2022 filed by the Respondents, Petitioner Nos. 1 to 6 opted to
continue under the CPF Scheme pursuant to the Notification dated
01.05.1987. Petitioner No. 7 did not exercise the option to continue
under the CPF Scheme pursuant to the Notification dated 01.05.1987 .
20. This Court in the case of Amita Ajit Desai v/s. Union of
India1 had occasion to consider the Office Memorandum dated
01.05.1987. In paragraph Nos.11, 12 and 13 this Court has observed as
follows :
"11. The controversy is no longer res integra. In the case of Union of India &
Anr. Vs. S.L. Verma & Ors., the Hon'ble Supreme Court had an occasion to consider
the very same Office Memorandum. It will be helpful to refer to paragraph 7 of the
said judgment of the Apex Court which reads as under:
"7. The Central Government, in our opinion, proceeded on a basic
misconception. By reason of the said office memorandum dated 1-5-1987
a legal fiction was created. Only when an employee consciously opted for
to continue with the CPF Scheme, he would not become a member of the
Pension Scheme. It is not disputed that the said respondents did not give
1 Writ Petition No. 1331 of 2017 decided on 17.01.2019
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their options by 30-9-1987. In that view of the matter Respondents 1 to
13 in view of the legal fiction created, became the members of the
Pension Scheme. Once they became the members of the Pension Scheme,
Regulation 16 of the Bureau of Indian Standards (Terms and Conditions
of Service of Employees Regulations, 1988) had become ipso facto
applicable in their case also. It may be that they had made an option to
continue with the CPF Scheme at a later stage but if by reason of the
legal fiction created, they became members of the Pension Scheme, the
question of their reverting to the CPF would not arise. Respondent 14 has
correctly arrived at a conclusion that an anomaly would be created and in
fact the said purported option on the part of Respondents 1 to 13 was
illegal when a request was made by Respondent 14 to the Union of India
for grant of approval so that all those employees shall come within the
purview of the Pension Scheme. In our opinion, the Ministry of Finance
proceeded on a wrong premise that the Pension Scheme was not in
existence and it was a new one. Two legal fictions, as noticed
hereinbefore, were created, one by reason of the memorandum, and
another by reason of the acceptance of the recommendations of the
Fourth Central Pay Commission with effect from 1-1-1986. In terms of
such legal fictions, it will bear repetition to state, Respondents 1 to 13
would be deemed to have switched over to the Pension Scheme, which a
fortiori would mean that they no longer remained in the CPF scheme."
12 On perusal of the aforesaid observations of the Hon'ble Apex Court, it
is clearly revealed that by reason of the said Office Memorandum dated 1st
May 1987, a legal fiction was created. It has been held that only when an
employee consciously opted to continue with the CPF Scheme, he would not
become a member of the Pension Scheme. It has been held that if no option is
exercised by an employee, prior to the date specified in the Office
Memorandum dated 1st May 1987, the employee shall be deemed to have
automatically come over to the Pension Scheme.
13. We find that the aforesaid directions of the Hon'ble Apex Court would
clearly cover the case of the petitioners. Undisputedly, none of the petitioner
has opted for the CPF Scheme under the Office Memorandum dated 1st May
1987. In that view of the matter, we find that in view of the Office
Memorandum dated 1st May 1987, the petitioners would be deemed to be
covered by the Pension Scheme."
21. The principle that emerges from the decision in the case of
Amita Ajit Desai (supra), is that only those employees who have opted to
continue with the CPF Scheme, would not become a member of the
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Pension Scheme. If no option is exercised by an employee prior to the
cut-off date, the employee shall deem to have automatically come to the
Pension Scheme. In the present case, records indicate that the Petitioner
Nos. 1 to 6 have consciously exercised the option to continue under the
CPF Scheme. No reason is discernible from the pleading and the
material on record, for the refusal on the part of the Petitioner Nos. 1 to 6
to exercise their option to be governed by the Pension Scheme while
they were in service.
22. In the case of Doctor Mani K. Madala & others v/s. The
Union of India Anr.2, Petitioners therein had sought for a declaration of
they being entitled to shift from the Contributory Provident Fund
Scheme (CPF) Scheme to the General Provident fund-cum-Pension-cum-
Gratuity Scheme from the date they had superannuated. Case of the
Petitioners was that though the National Institute of Industrial
Engineering (NITIE) sought option from its employees, Petitioners
exercised an option to remain in the existing CPF Scheme. It was the
case of Petitioners that they did not give an option to positively shift
from CPF to General Provident Fund, nor refrained from giving any
option, however specifically they exercised the option to retain the
2 Writ Petition No. 2960 of 2021 decided on 1st April, 2024.
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existing scheme. It was only when the Petitioners found that the
decision taken by them by non-opting the Pension Scheme was incorrect,
the Petitioners made a request to the NITIE and the Union of India to
permit them to change over the scheme from CPF to Pension. Said
request was turned down by the Union of India. In the said facts and
circumstances, this Court taking note of the positive option, exercised by
the employees to continue to be under CPF Scheme, held that once the
option was exercised, there was no room to any come back situation.
This Court thus found that the action of the NITIE and Union of India of
not permitting the Petitioners to change their option after the cut off date,
was neither arbitrary nor unreasonable.
23. In view of the above and considering that Petitioner Nos. 1
to 6 are educated persons who have consciously opted to continue with
the CPF Scheme, would not become members of the Pension Scheme.
Approbation and Reprobation would not be permissible in such schemes.
No case is made out for indulgence as far as Petitioner Nos. 1 to 6 are
concerned. This Petition is, therefore, dismissed (partly) qua Petitioner
Nos. 1 to 6. Rule is discharged to their extent.
24. Petitioner No. 7 (since deceased) did not exercise the option
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under the Notification dated 01.05.1987. We, therefore, find that the
decision of this Court in the case of Amita Desai (supra) would apply to
the case of Petitioner No. 7 and we follow the course as adopted in the
said case. Hence, this Petition is partly allowed to the extent of
Petitioner no. 7. It is held and declared that the Petitioner No. 7 would
be entitled to be governed by the Central Civil Services (Pension)
Scheme, 1972. Petitioner No. 7 would be paid pension from the date of
his retirement. The arrears of pension shall be paid within a period of six
months, however, the arrears will not carry any interest. Respondent No.
2 is entitled to recover the employer's contribution towards CPF along
with simple interest at the rate of 8% per annum thereon from the arrears
of pension that would be payable to the Petitioner No. 7. Rule is made
partly absolute to the extent of Petitioner no. 7.
25. No order as to costs.
(ASHWIN D. BHOBE, J.) (RAVINDRA V. GHUGE, J.)
