Delhi High Court
Radhey Shyam vs The Union Of India & Anr. on 31 July, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 6003/2012
% 31st July, 2013
RADHEY SHYAM ......Petitioner
Through: Mr. Arun Kumar Srivastava and Mr.
Sanjay Verma, Adv.
VERSUS
THE UNION OF INDIA & ANR. ...... Respondents
Through: Mr. Jagat Arora, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
1. The petitioner-Sh. Radhey Shyam through this writ petition seeks
directions to the respondent no.2/employer/corporation bank to give him the
benefit of 1995 pension scheme.
2. The case of the petitioner is that the respondent no.2/employer is
discriminating against the two sets of similarly situated employees merely
by giving them separate dates of joining with the respondent no.3 although
all the persons who have joined are appointed as probationary Clerks under
the same recruitment process. Reference is invited to the letter of
W.P(C)6003/2012 Page 1 of 5
appointment of one Sh. Sumit Panchal dated 15.3.2010 giving the date of
joining to him as 29.3.2010 and which letter of appointment does not
prohibit Mr. Sumit Panchal from getting benefit of 1995 pension scheme
because the date of joining is before 1.4.2010, whereas petitioner who was
given the appointment letter dated 23.3.2010 was given the date of joining as
5.4.2010 with the condition that he will not get benefit of the 1995 pension
scheme. The date 1.4.2010 is the cut-off date whereafter benefit of 1995
pension scheme cannot be taken.
3. The fundamental right given to a citizen under Article 14 is one of the
cornerstones of our Constitution. Article 14 is said to be the flag bearer of
the Constitution. Article 14 prohibits discrimination of similarly situated
persons. No doubt the State is always entitled to create separate groups and
apply laws or other benefits or disadvantages to them separately, however,
the difference in groups which are created must have rational basis of
classification, and the differentiation which is created must have nexus to the
object of classification. Mere date of joining of an employee, and which is
given at the convenience of the employer, cannot be a valid basis of
classification, especially, taking into account the fact that prejudice is caused
by non-grant of pension scheme to persons who are otherwise similarly
W.P(C)6003/2012 Page 2 of 5
situated and appointed on the same post through the same recruitment
process merely because some persons are asked to join before 1.4.2010 and
some persons after that date. In my opinion, therefore, the indubitable
conclusion is that petitioner has been wrongly discriminated against and
Article 14 stands clearly violated on the tenuous/unsustainable basis of
classification that petitioner has been asked to join subsequent to 1.4.2010
when the 1995 pension scheme was withdrawn, although, benefits of 1995
pension scheme have been given to others including one Sh. Sumit Panchal
as stated above who came in as per the same recruitment process as the
petitioner.
4. Learned counsel for the respondent no.2 very passionately sought to
contend that the writ petition is liable to be dismissed for three reasons,
firstly on account of estoppel, secondly on account of delay and laches and
thirdly on account of the fact that petitioner has been given benefit of a non-
pension scheme operating post 1.4.2010. In my opinion, all these arguments
urged on behalf of respondent no.2 are misconceived because estoppel
cannot be used against fundamental right which is enforceable under Article
14 of the Constitution of India. The entire object of Article 14 is to prevent
discrimination and if there is discrimination by the Government or an
W.P(C)6003/2012 Page 3 of 5
instrumentality of State, such action clearly falls foul of the mandate of
Article 14 of the Constitution of India. Petitioner at the stage of joining did
not know that other persons were given benefit of 1995 pension scheme on
the date of joining, and therefore, it is not as if he knew that others are
getting benefit of 1995 pension scheme, but he is not getting and with open
eyes he accepts such discrimination. Of course, I am doubtful that even
deliberate discrimination can be prevented by estoppel in view of Article 14
of the Constitution.
5. So far as the aspect of delay and laches is concerned, the same only
needs to be mentioned for being rejected because the writ petition is filed in
about 2 ½ years from the date of appointment, though for seeking
implementation of mandate of Article 14 of the Constitution of India, really
there would generally be no limitation in cases such as the present, and it
would depend on facts of each case because as to whether the Courts should
or should not exercise its power under Article 226 of the Constitution of
India.
6. The third argument urged on behalf of respondent no.2 also deserves
to be rejected because it is for the petitioner to choose which scheme is
beneficial to him and if petitioner feels that 1995 pension
W.P(C)6003/2012 Page 4 of 5
scheme/regulations is more beneficial to him then, once the respondent no.2
has granted benefit of 1995 pension scheme/regulations to other persons,
petitioner cannot be denied such benefit by asking him to subscribe to a non-
pension scheme operating post 1.4.2010.
7. In view of the above, the writ petition is allowed. It is held that
petitioner will be entitled to benefit of 1995 pension scheme of the
respondent no.2. Petitioner therefore is directed to be given by the
respondent no.2 necessary papers which after being filled in by the petitioner
will be submitted to the respondent no.2 for the petitioner to get benefit of
1995 pension scheme/regulations. Parties are left to bear their own costs.
JULY 31, 2013 VALMIKI J. MEHTA, J.
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