Bindukumari Devdas Christian vs State Of Gujarat
2022 Latest Caselaw 4172 Guj

     C/SCA/8735/2017                            JUDGMENT DATED: 18/04/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 8735 of 2017


FOR APPROVAL AND SIGNATURE: Sd/-.

HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
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1     Whether Reporters of Local Papers may be allowed                NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                         NO

3     Whether their Lordships wish to see the fair copy               NO
      of the judgment ?

4     Whether this case involves a substantial question               NO
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                 BINDUKUMARI DEVDAS CHRISTIAN & 3 other(s)
                                 Versus
                       STATE OF GUJARAT & 3 other(s)
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Appearance:
MR APURVA A DAVE(3777) for the Petitioner(s) No. 1,2,3,4
MR HARDIK MEHTA, GOVERNMENT PLEADER for the Respondent(s) No.
1
MR HS MUNSHAW(495) for the Respondent(s) No. 3,4
RULE SERVED for the Respondent(s) No. 2
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CORAM:            HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
                           Date : 18/04/2022
                          ORAL JUDGMENT

1. This petition is filed by the petitioners under Article 226 of the Constitution of India with a prayer that the Respondents be directed to extend the benefits of Pension Scheme to the petitioners, as per Circular dated 02.02.1984.

2. Learned Advocate, Mr. Apurva Dave, appearing for the petitioners submitted that the petitioners

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were, initially, appointed as Staff Nurse and were posted in various hospitals / medical institutions run by Respondent No.3-Ahmedabad Municipal Corporation (in brief, 'AMC').

2.1 It was submitted that during the course of their employment, the petitioners were promoted / their services were upgraded from time to time.

2.2 At this stage, it was pointed out that Respondent No.3-AMC issued a Circular dated 02.02.1984, wherein, it was provided that those employees, who joined services after 01.01.1983, shall be eligible and entitled to the benefit of Pension Scheme.

2.2.1 It may be noted that prior to the issuance of the Circular dated 02.02.1984, a Scheme, known as the Contributory Provident Fund (in short, 'CPF') was in existence for the employees of Respondent No.3- AMC.

2.2.2 Further, the Circular dated 02.02.1984 provided that the employees, who have joined services prior to 01.01.1983, shall have to exercise their option either to continue with the CPF Scheme or to join the Pension Scheme.

2.2.3 In the Circular dated 02.02.1984, it was stated that the employees, who wished to continue the CPF Scheme, shall have to fill-up a consent form and

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the employees, who do not fill-up the consent form, shall be treated as the employees, who have opted for the Pension Scheme.

2.2.4 It was also stated in the Circular dated 02.02.1984 that the employees, who joined the services after 01.01.1983, shall be eligible and entitled for the Pension Scheme, accordingly.

2.3 Learned Advocate, Mr. Dave, submitted that since the petitioners did not submit the Consent Form, they are deemed to have accepted the Pension Scheme.

2.4 It appears that Respondent No.3-AMC, thereafter, issued various circulars from time to time.

2.5 It was pointed out from the record that Respondent No.4 issued a Circular dated 02.01.1989, whereby, it was provided that the employees, who have completed three years' service and have become permanent employees, the amount of GPF shall be deducted from their salary compulsorily.

2.5.1 Reliance was also placed on the various circulars produced on record.

2.6 Thereafter, it was submitted that before retirement, Petitioner No.1, herein, made a representation dated 06.04.2017 and requested the

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Respondent-authorities that as she is retiring from the service on 31.05.2017, the Pension Scheme may be made applicable to her. However, such a request was not accepted by Respondent Nos. 3 and 4.

2.7 Hence, the petitioners have preferred the present petition.

3. Learned Advocate, Mr. Dave, appearing for the petitioners submitted that the issue involved in this petition is squarely covered by the decision of this Court (Coram: Mr. Biren Vaishnav, J.), Dated: 22.01.2020, rendered in Special Civil Application No. 132 of 2018.

3.1 It was submitted that against the order dated 22.01.2020, Respondent No.3-AMC had preferred Letters Patent Appeal No. 736 of 2020, which came to be dismissed by the Division Bench of this Court with certain observations and clarifications vide order dated 12.10.2020.

3.2 Learned Advocate, Mr. Dave, next placed reliance on the decision of this Court, Dated: 04.08.2017, rendered in Letters Patent Appeal No. 664 of 2016 and the allied matters.

3.3 Then, learned Advocate, Mr. Dave, placed reliance on the decision of the Apex Court, rendered in the case of 'Union of India & Another Vs. S.L. Verma & Others', reported in (2006) 12 SCC 53.

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3.4 It was, therefore, prayed that this petition be allowed.

4. On the other hand, learned Advocate, Mr.

strongly opposed this petition and referred to the averments made in the affidavit-in-reply filed on behalf of Respondent No.3-AMC.

4.1 It was contended that Respondent No.3-AMC was, initially, having CPF Scheme for the welfare of its employees. However, later on, Respondent No.3-AMC introduced Pension Scheme with effect from 01.01.1983. For the purpose of availing the benefits of the Pension Scheme, an employee, who had joined services prior to 01.01.1983, was required to fill-up a Consent Form for availing the benefits of either the Pension Scheme or the CPF Scheme.

4.2 It was contended that, since, there was some confusion with regard to Circular dated 02.02.1984 about the provisions of the CPF Scheme and the Pension Scheme, another Circular dated 28.03.1984 was issued by Respondent No.3-AMC. Thereafter, another Circular dated 31.05.1984 was also issued.

4.2.1 It was specifically stated in the said circulars that the Option Form for the Pension Scheme was to be submitted by 30.06.1984. Later on, the said time-limit was extended up to 31.03.1985 and

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thereafter, the same was extended from time to time by way of various circulars.

4.2.2 Learned Advocate, Mr. Munshaw, referred to the relevant circulars, which are produced on the record.

4.3 It was, further, submitted that all the employees were repeatedly given opportunities to make-up their minds and to submit the relevant Option Form for obtaining the benefits of either the CPF Scheme or the Pension Scheme. However, the petitioners did not take advantage of any of such circulars and the extension of time-limit for exercising option and instead, the petitioners continued with the CPF Scheme and even accepted the amount lying in their respective CPF account without any objection, at the time of their retirement.

4.4 Learned Advocate, Mr. Munshaw, at this stage, pointed out that only present Petitioner No.1 had made a representation to the Respondent- authorities on 06.04.2017, i.e. just before one month of her retirement, and therefore, the same was rejected.

4.4.1 So far as the rest of the petitioners are concerned, they did not make any such representation.

4.5 In support of his submissions, learned Advocate, Mr. Munshaw, placed reliance on the

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decision of the Division Bench of this Court, Dated: 08.10.2015, rendered in Letters Patent Appeal No. 1252 of 2015 and contended that the issued involved in this petition is covered by the aforesaid decision.

4.5.1 A copy of the order dated 08.10.2015 is produced at Page-114 of the compilation.

4.6 It was, therefore, urged that this petition may not be entertained.

5. Learned AGP, Mr. Mehta, appearing for Respondent Nos. 1 and 2 supported the submissions made by learned Advocate, Mr. Munshaw, appearing for Respondent Nos. 3 and 4 and submitted that this petition be dismissed.

6. Having heard the learned Advocates for the parties and having perused the material on record, it is revealed from the record that the present petitioners were appointed in the year 1982 on the post of Staff Nurse and at that point of time, the CPF Scheme was in existence. Pursuant to their appointment, the petitioners were granted promotion from time to time.

6.1 It appears that Respondent No.3-AMC issued a Circular on 02.02.1984, a copy whereof is produced at Page-33 of the compilation, which provided that the employees of Respondent No.3-AMC, who joined services

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after 01.01.1983 shall be entitled to and eligible to get the benefits of the Pension Scheme, automatically. However, the employees, i.e. like the present petitioners, who had joined services prior to 01.01.1983, were required to fill-up an Option Form, clearly giving their option, as to whether he / she wish to continue with the existing CPF Scheme or wish to take the benefit of the Pension Scheme.

6.2 It is the case of the present petitioners that as they were interested in joining the Pension Scheme, even if, they did not fill-up the Option Form exercising their option, they are covered by the Pension Scheme, automatically.

6.2.1 It is pertinent to note that Respondent No.3-AMC has specifically stated in its affidavit-in- reply that as there was some confusion with regard to the provisions of the CPF Scheme and the Pension Scheme, pursuant to the issuance of the Circular dated 02.02.1984, Respondent No.3-AMC issued another Circular dated 28.03.1984, whereby, the employees were directed to exercise their option and to intimate the authorities about their option to either continue with the CPF Scheme or the avail the benefits of the Pension Scheme.

6.2.2 A copy of the circular dated 28.03.1984 is produced at Page-92 of the compilation.

6.2.3 Respondent No.3-AMC also stated in its reply

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that vide Circular dated 31.05.1984, the employees were given an opportunity to exercise their option for either the CPF Scheme or the Pension Scheme latest by 30.06.1984. In the said Circular it was specifically stated that the concerned employee shall have to fill-up the Consent Form and have to exercise the option. It appears that the said time-limit was, thereafter, was extended vide different circulars from time to time. All the relevant circulars are produced on the record.

6.3 At this stage, it may be noted that the petitioners did not file any rejoinder to the affidavit-in-reply filed by Respondent No.3-AMC.

6.4 In view of the above, now, it is not open to the petitioners to rely on the Circular dated 02.02.1984. Despite of the fact that Respondent No.3- AMC issued various circulars from time to time and extended the time-limit for exercising the option to either continue with the CPF Scheme or to join the Pension Scheme, the petitioners did not fill-up the relevant form, exercising their option for either to continue with the CPF Scheme or to join the Pension Scheme. On the contrary, from the record it appears that the contribution towards the CPF Scheme was regularly deducted from the salaries of the petitioners and the share of the employer was also deposited in their respective CPF Account and the petitioners were very well aware about the same, all throughout. Despite that, at no point of time, the

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petitioners made any representation to the authorities to permit them to switch to the Pension Scheme from the CPF Scheme and the only representation was made by Petitioner No.1, herein, on 06.04.2017, i.e. just before one month from the date of her retirement, and therefore, it was rightly came to be rejected by Respondent Nos. 3 and 4.

6.5 Thus, looking to the conduct of the present petitioners, it clearly transpires that the petitioners remained negligent and waived all their rights of change of option from the CPF Scheme to the Pension Scheme.

6.6 At this stage, it would be relevant to refer to the decision of this Court, Dated: 08.10.2015, rendered in Letters Patent Appeal No. 1252 of 2015, wherein, under the similar circumstances, the Division Bench of this Court observed and held thus:

"8. We may also record that on the similar issue, in respect of other employees of the respondent Corporation, the question was considered by the Division Bench of this Court (M.R. Shah & A. G. Uraizee, J.J.) in LPA No.1245 of 2014 and this Court, for the reasons recorded in the order, did not interfere with the order passed by the learned Single Judge. It may also be recorded that on the aspect of conduct of the employee to remain as the member of CPF until reaching the age of superannuation and thereafter to contend the rights as member of GPF had also come up for consideration

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before this Court in LPA No.1037 of 2014, decided on 25.11.2014 in the case of Rajesh Girdharlal Bhatt Vs. State of Gujarat & Anr., wherein at paragraphs 10 and 11, it was observed thus:-

"10.The original petitioner after having joined the service in the year 1997, though might have raised the grievance in the year 2000, but as per the additional affidavit, it appears that he was communicated the rejection of his proposal to treat the length of service with the Board vide communication dated 22.05.2003. Thereafter, he pursued the matter and raised the grievance for the first time in the year 2011, roughly after about 8 years from the date of the communication of the decision of the authority that his request for considering the length of service with the Board cannot be granted. Therefore, the delay also would operate against the original petitioner.

11. In addition to the above, once the orig. petitioner had put an end to the services with the Board and after having pocketed the benefits of CPF as back as in the year 1997, he cannot be heard to say that he is ready to refund the amount if the length of service with the Board is considered for benefit of pension in the services of the State Government."

9. We find that in the present case also the petitioner by

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his implied conduct not only waived the right, but rather abandoned his right for all purposes until he reached the age of superannuation. Therefore, after the retirement the petitioner cannot be heard to say that he is ready to refund the amount if he is treated as member of GPF."

6.7 So far as the reliance placed on by the learned Advocate, Mr. Dave, for the petitioner on the decision dated 22.01.2020, rendered in Special Civil Application No. 132 of 2018 is concerned, the facts of that case are different from the facts of the present case.

of 2018, the petitioner had duly filled-up the option form vide inward No. B-91, expressing her desire to avail the benefits of the GPF Scheme and despite that the authorities continued to deduct the CPF from her account, instated of GPF. Further, the petitioner, therein, had produced the option form along with the rejoinder filed by her to the affidavit-in-reply filed by the Respondent. Therefore, the Court observed that the petitioner had positively opted to be governed under the GPF Scheme.

6.7.2 Therefore, the aforesaid judgment would not assist the case of the present petitioners.

6.8 Similarly, the reliance placed on by the learned Advocate, Mr. Dave, on the decision of this Court, Dated: 04.08.2017, rendered in Letters Patent

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Appeal No. 664 of 2016 and the allied matters is concerned, the facts of that case are also different, where, the Division Bench of this Court has specifically noted in Paragraph-3.3 thereof as under;

"3.3 It was the case on behalf of the original petitioners that despite they had submitted their option, they were not given GPF Account number and they continued to be in the CPF Scheme and the were denied the benefit of Pension Scheme as per the Government Resolution dated 17th January 1996, and therefore, the respective petitioners preferred the aforesaid Special Civil Applications challenging action of the respondents for withholding the Pensionery benefit vide Government Resolution dated 17th January 1996 and for withholding the allotment of GPF Account number, and to declare that the petitioners are entitled and eligible to get the benefit of Pension Scheme, as per Government Resolution dated 17th January 1996."

6.8.1 Thereafter, in Paragraph-19 thereof, the Division Bench has observed as under:

"10. It is not in dispute that as on 1st April 1995/17th January 1996, the respective original petitioners were already in service. It is the case of the original petitioners that as such they did exercise option for Pension Scheme in the year 1997 itself which was forwarded by the original respondent no. 4-Institution. It appears that thereafter, even vide Resolution dated 22nd August 2007, the Government in its Education Department

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clarified the position regarding the amount of CPF or GPF not deposited and in fact, clarified that the employees of the Institutions figured in the Appendix "A" [including the original respondent no. 4- Institution in which the original petitioners were serving] are entitled for the benefit of the Pension Scheme."

6.8.2 Thus, in the aforesaid case, though, the petitioners had exercised their option, they were not given the benefit of GPF, whereas, in the case on hand, the petitioners never exercised their option, despite of having been given a number of opportunities by Respondent No.3-AMC by way of issuing various circulars and by extending time-limit for exercising such option from time to time. Thus, the aforesaid judgment shall also not apply to the facts of the present case.

6.9 In the present case, as observed herein above, the petitioners remained negligent and did not exercise their option, despite of a number of opportunities were given to them and instead, they filed the present petition after their retirement, after having received the amount lying in their respective CPF account without any protest or objection and therefore, now, the petitioners cannot be heard to say that they are ready to refund the amount of deposited by the employer towards its contribution under the CPF Scheme, if, they are permitted to switch over to the Pension Scheme.

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7. Resultantly, this petition fails and is REJECTED, accordingly.

Rule is discharged. No order as to costs.

Sd./-

(VIPUL M. PANCHOLI, J) UMESH/-