Kailash Chander vs Delhi Transport Corporation
2009 Latest Caselaw 5176 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
8.

+     LPA 531/2009


      KAILASH CHANDER                              ..... Appellant
                    Through: Ms. Kittu Bajaj, Adv.

                  versus


      DELHI TRANSPORT CORPORATION                 ..... Respondent
                    Through: Mr. J.S. Bhasin, Adv.

      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE DR. JUSTICE S.MURALIDHAR


                  ORDER

% 14.12.2009

1. This appeal is directed against an order dated 28.11.2008 passed

by the learned single Judge dismissing the appellant's W.P.(C) No.

8467/2008.

2. The appellant retired from the service of the Delhi Transport

Corporation (DTC), the respondent herein, as Assistant Traffic Inspector

on 31st May, 1993. He opted for voluntary retirement under the VRS

Scheme dated 3.3.1993. By office order dated 27.11.1992, an option

had been given by the DTC to its employees to shift from the CPF

Scheme to the Pension Scheme. According to the appellant, he never

opted at that time for pension under the Pension Scheme as he

assumed that he would need a lump sum amount at the time of

retirement for rehabilitating himself.

3. Within a few months thereafter DTC introduced a VRS Scheme.

Under Clause 4(g) of the VRS Scheme dated 3.3.1993, pension was

payable in terms of the Office Order dated 27.11.1992. It is the case of

the appellant that under the VRS Scheme, there was no requirement to

exercise any separate option for payment of pension. He states that

he made an application on 30.3.1993 under the VRS.

4. The appellant has placed on record with the writ petition, a copy

of the letter dated 28.4.1993 addressed by him to the Deputy Chief GM

(Pension), DTC in the following terms:

"The Dy. Chief G.M. (Pension) Delhi Transport Corporation, I.P. Estate, New Delhi

THROUGH DY. MANAGER (CCR)

Sub: Change in option submitted for the Pension Scheme introduced by DTC

Sir,

With regards it is submitted that earlier I had submitted option for seeking Employer's Fund in the prescribed form for exercising option for the Pension Scheme introduced by the DTC vide its Office Order No. 16 dated 27.11.92. I had submitted application for seeking the Voluntary Retirement from the Corpn. Since the Voluntary Retirement Scheme has been introduced after introduction of Pension Scheme, I request your goodself for providing me pension after retirement from services of the Corpn.

Thanking You.

Yours faithfully,

Sd/-

(KAILASH CHANDER) Asstt. Tr. Inspr.

(CCR)"

5. Thereafter, on 7.5.1993, DTC issued the following Circular:

"No. IRD-VRS/HQ/93/352 Dated: 7-5-1993

Some of the employees, who have opted for the Voluntary Retirement Scheme and whose request for V.R.S. has been accepted/under consideration and who had earlier not opted for the Pension Scheme, have now opted for the Pension also.

A list of such cases may please be forwarded to the Dy. CGN (Pension) under intimation to this office, so that necessary action in their cases could be taken by the Pension Cell.

Sd/-

(A.K. SHARMA) DY. CHIEF GENERAL MANAGER (IR)"

6. The stand of the DTC before the learned single Judge was that

once the appellant's case for VRS was accepted, and if he had not at

that time exercised the option for pension, he would not thereafter be

entitled to opt for the pension scheme. The appellant was given all his

VRS benefits on 31.5.1993.

7. The appellant has placed on record an internal file noting dated

22.4.1993 of the Deputy Chief General Manager (I.R.) in which the

proposal for permitting employees who had opted for the VRS to be

also allowed to opt for the pension scheme was mooted. The said note

reads as under:

"A number of employees who have opted for Voluntary Retirement have simultaneously requested that they should be allowed to opt for the Pension Scheme now.

The matter was discussed earlier during an HOD's meeting and consensus emerged that to make VRS more attractive, such employees who have earlier not opted for Pension, but now while applying for VRS, requested to change their option in favour of Pension Scheme, may be allowed to do so. It is, therefore, proposed that such employees who had earlier opted out for Pension Scheme, but while applying for VRS, have requested to be covered under the Pension Scheme, may be allowed to join the Pension Scheme, provided their request for voluntary retirement is acceded to.

Submitted please.

Sd/-

(A.K. SHARMA) DY. CHIEF G.M. (I.R.) 22-4-1993"

8. DTC does not deny the fact that the above proposal was in fact

mooted. Further, in the affidavit dated 10.12.2009 filed in the present

proceedings, it is reiterated that "the appellant while opting for VRS

vide his application/consent letter dated 30.3.1993 did not opt for

pension/ pensionery benefits and therefore the appellant was not

entitled for grant of pension/benefit of circular dated 7.5.1993 under

the VRS Scheme".

9. The learned single Judge has accepted the above explanation of

the DTC and dismissed the writ petition.

10. Having heard learned counsel for the parties and having perused

the record, we are unable to agree with the reasoning and conclusion

of the learned single Judge. A collective reading of the note dated

22.4.1993 and the Circular dated 7.5.1993 reveals that the DTC

intended to give all employees who opted for the VRS to also opt for

pension, although they may not have expressly done so at the time of

opting for the VRS. Further, it is plain that even on 28.4.1993, before

his request for voluntary retirement under the VRS was accepted, the

appellant had clearly indicated that he wanted to also opt for pension.

We are unable to take a narrow view of the Circular dated 7.5.1993.

The DTC's stand that Circular dated 7.5.1993 extended the facility of

option for pension scheme only to those whose request for retirement

under the VRS had not been accepted by that date, cannot be

countenanced since that would mean that there are two classes of

similarly placed persons, one of them being granted the benefit of

pension and the other denied. We find such a classification to be

arbitrary and not based on any rational criterion. Factually also, the

appellant exercised the option for pension before 7.5.1993 and before

the date DTC accepted his request under the VRS. We therefore find

no justification for DTC denying to the appellant the opportunity of

opting for pension.

11. Accordingly the impugned order of the learned single Judge is

hereby set aside. The amounts due to the appellant, computed on the

basis that he opted for the Pension Scheme as on 7.5.1993, will be

paid to him. The arrears shall be paid to the appellant by the DTC

within a period of eight weeks from today together with simple interest

@6% per annum from the date the said amount became due till the

date of actual payment. The appeal is allowed in the above terms.

CHIEF JUSTICE

S.MURALIDHAR, J DECEMBER 14, 2009 pk