Orissa High Court
Simanchal Rath vs State Of Odisha & Others on 3 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.14751 of 2015
An application under Articles 226 and 227 of the
Constitution of India.
Simanchal Rath . Petitioner
Mr. S. Senapati, Advocate
-versus-
State of Odisha & others . Opp. Parties
Mr. S. Das, AGA
Mr. A.R. Mishra, Advocate
(For O.P. Nos.3 & 4)
CORAM:
JUSTICE A.K. MOHAPATRA
_____________________________________________________
Date of hearing : 26.06.2023 | Date of Judgment: 03.08.2023
______________________________________________________
A.K. Mohapatra, J. :
1.
Heard Mr. S. Senapati, learned counsel for the Petitioner as
well as Mr. S. Das, learned Addl. Government Advocate for the
State-Opposite Parties and Mr. A.R. Mishra, learned counsel for the
O.P. Nos.3 & 4. Perused the pleadings of the parties as well as
documents annexed thereto.
2. The present writ application has been filed by the petitioner
with the following prayer:-
"It is, therefore, humbly prayed that this Hon'ble
Court may graciously be pleased to issue Rule NISI
// 2 //
calling upon the Opp. Parties to show cause as to why
appropriate writ/writs shall not be issued directing
them to allow the petitioner to change his option from
CPF to Pension Scheme in view of the Statute-289 and
the Syndicate decision dtd.30.08.1997 and The Odisha
Universities Employees' Pension Fund
(Administration) Rules, 2012 within a stipulated time
and on perusal of causes shown if any or upon
insufficient causes shown, make the said rule absolute
and may pass any appropriate order as deemed just
and proper."
3. It is submitted by learned counsel for the Petitioner that the
Odisha University First Statute, 1990 was introduced for the first
time in the year 1990 and in view of Rule 288 of the said Rules, the
employees retiring on or after the 1st April, 1990 shall be entitled
either to the benefit of the pension scheme as applicable to the State
Govt. employees as amended from time to time or to the benefits of
the Contributory Provident Fund (CPF) of the University in the
event the employee concerned opts for the same. Statute 289 (1)
provides that the existing employees who have not already
exercised their option under the First Statute shall exercise their
option in writing either for the pension scheme or for the
Contributory Provident Fund under Statute 288 within a period of
six months from the date the first statute of the university came into
force.
4. It was also contended by learned counsel for the Petitioner
that the employees recruited thereafter to the University service
shall exercise their option either for the pension (GPF) or for
// 3 //
Contributory Provident Fund (CPF) scheme within six months from
the date of their appointment. Drawing attention to the Statute
289(3), learned counsel for the petitioner further contended that the
same provides if any employee fails to exercise the option as
required under the aforesaid statute within the prescribed time limit,
the employee shall be deemed to have opted for the pension
scheme. Thus, it was argued before this Court that in the event the
employee fails to opt for the CPF Scheme it will be presumed the
employee has opted for the pension scheme and accordingly his
claims shall be processed.
5. Learned counsel for the Petitioner at this juncture also
contended that so far the present petitioner is concerned it is his
admitted case that he has not opted for either the CPF or GPF
Scheme within the stipulated period of time i.e. from 01.01.1990 to
30.06.1990. In the said context, learned counsel for the Petitioner
refers to the letter of the Berhampur University dated 22.03.2016
under Annexure-14 which has been obtained under the provisions
of the RTI Act.
6. Learned counsel appearing for the Berhampur University,
on the other hand, submitted that the petitioner had opted for CPF
Scheme on 18.04.1989 prior to the university first statute came into
force in the year 1990. He further submitted that on the basis of
// 4 //
such exercise option by the petitioner, the university had already
processed the files and the petitioner was kept under the CPF
Scheme. Therefore, it was submitted that since the petitioner has
already opted for the CPF Scheme there was no scope on the part of
the university to change option and bring the petitioner under the
pension scheme. He also referred to the letter of the State
Government filed as Annexure-D/2 by way of additional affidavit.
Referring to the context of the letter under Annexure-D/2, learned
counsel for the Berhampur University submitted that the State
Government has taken a decision that the decision of the syndicate
of the University dated 30.08.1997 is beyond the scope of the first
statute. Further, on perusal of the said letter dated 23.03.2011 under
Annexure-D/3 to the affidavit of the Opposite Party Nos.3 and 4, it
appears that the State Government has opined that the change of
option from CPF to Pension scheme be carried out as per the
provisions contained in statute 289(1) of the Odisha University first
statute, 1990.
7. It is further contended by learned counsel for the
Berhampur University that a new chapter was added to the
Berhampur University statute 1966 on 28.05.1985 providing for an
opportunity to the employees to exercise their option to either opt
for the CPF scheme or for the pension scheme. He further
// 5 //
contended that once such an option is exercised the same shall be
finally. Accordingly, he also submitted that such option shall be
exercised within six months from the date of the First Statute of the
university was amended, failing which it will be deemed that the
petitioner has opted for the CPF scheme. Learned counsel for the
University further contended that the petitioner having not
exercised any option within the prescribed period of six months in
view of the amendment to the University statute in 1985, it was
deemed that he had exercised the option to remain under CPF
scheme. He further contended that the prior to 28.05.1985 there was
no provision for pension scheme for the employees of the
University.
8. It was also contended by learned counsel for the University
that on 19.11.1988 the Odisha University employees condition of
service statute, 1988 came into force. The said statute governs the
service condition of university employees including that of the
Berhampur University. Under Statute 36 (1) (2) of the aforesaid
statute, it is provided that an employee is to exercise option as to
whether he desires to remain under CPF scheme or pension scheme
and such exercise of option by the employee shall be final. He
further contended that accordingly the petitioner exercise his option
on 18.04.1989 thereby choosing to remain under CPF scheme and
// 6 //
on the exercise such option, the university has accepted the
petitioner's option and accordingly the same has been recorded in
the service book of the petitioner. It was contended by learned
counsel for the University that after the first statute of odisha
university, 1990 came into force, the petitioner had also exercise his
option on 10.11.1993 to remain under the CPF scheme and such
exercise of option was also accepted by the University and the same
has been recorded in his service book.
9. Learned Addl. Government Advocate appearing on behalf
of the State-Opposite Parties adopted the argument advanced by
learned counsel appearing for the Opposite Party Nos.3 and 4-
University. He further contended that having exercised the option
once, further exercise of option to remain under the CPF scheme it
is no more available to the petitioner to opt for the pension scheme.
He further contended that the University is the authority before
whom the petitioner is required to submit his option and
accordingly on the basis of the option exercise by the petitioner, the
university concerned has made an entry in the service book of the
Petitioner and accordingly, the case of the petitioner has been
processed on that basis.
10. Learned Addl. Government Advocate drawing attention of
this Court to para-6 of the counter affidavit filed on behalf of the
// 7 //
Opposite Party No.1 submits before this Court that the Odisha
University Statute shall apply to the facts of the petitioner's case.
He also referred to the provisions contained in Statute 289 (1), (2)
& (3) as has been quoted in para-6 of the counter affidavit.
Referring to statute 289(1), Mr. Das, learned Addl. Government
Advocate submitted that existing employees who have not yet
exercised their option under the statute shall exercise their option in
writing either for pension scheme or for CPF under statute 288
within a period of six months from the date of the said statute came
into force.
11. There is no dispute with regard to the coming into force of
the statute i.e. w.e.f. 1.1.1990. He further contended that in view of
the 289 (3), which is a deeming fiction, the employees who fail to
exercise their option as required under the Statute, 1990 within the
prescribed time limit, he or she shall be deemed to have opted for
the pension scheme. Accordingly, it was submitted by learned
Addl. Government Advocate that the case of the petitioner is to be
considered strictly in the light of the provisions contained in statute
289 of the Odisha University first statute 1990. It was also
contended that the petitioner having exercised his option in the year
1993 which is an admitted fact, the petitioner is legally estopped to
change his stand and opt for the pension scheme at a belated stage.
// 8 //
Accordingly, it was also contended that the petitioner's case is to be
covered under the CPF scheme and not under pension scheme.
12. Having heard the learned counsels appearing for the
respective parties and on a careful scrutiny of the background facts
of the present cases as well as the pleadings of the respective
parties, this Court is of the view that the case of the petitioner is to
be considered in the light of the first Statute University, 1990.
Therefore, for better appreciation, the provisions contained under
Statute 288 as well as 289 are quoted hereinbelow:-
Pension of 288. Every employee retiring on or after the 1st day of April, 1985 be entitled
Contributory either to the benefit of the Pension Scheme as applicable to the State Government
Provident employees as amended from time to time, or to the benefit of the Contributory
Fund Provident Fund of the University provided in this Chapter, as he may opt:
Provided however, that for the purpose of Contributory Provident Fund,
the term "employee" shall be as defined in Chapter VII of this Part.
Option 289. (1) The existing employees who have not already exercised their option
under the Statutes shall exercise their option in writing either for the Pension
Scheme or the Contributory Provident Fund Scheme under Statute 288 within a
period of six months from the date these Statutes come into force. The employees
recruited thereafter to the service of the University shall exercise their option
either for the Pension or Contributory Provident Fund Scheme within a period of
six months of their appointment:
Option once Provided that the employees who have crossed the age of 58 years but
exercised be have not attained the age of 60 years shall also have the right to exercise their
final option as aforesaid within a period of six months from the date these statutes come
into force, but not later than one month prior to the date they attain the age of 60
years.
(2) The option as provided above, shall be exercisable once only in
respect of either Scheme which shall be final irrespective of any change that may
be made in any such scheme from time to time. The fact of exercising such option
shall be recorded in the service book of the employee by the Registrar or such
other office nominated by him.
Pension and (3) If any employee fails to exercise the option required under these
gratuity Statutes within the prescribed time limit, he/ she shall be deemed to have opted for
the Pension Scheme.
// 9 //
13. On perusal of Statute 289 (1) it appears that the existing
employees who have not already exercised their option under the
Statute (Odisha University first Statute, 1990) shall exercise their
option in writing either for pension scheme or for CPF scheme
under Statute 288 within a period of six months from the date these
statutes came into force (admittedly with effect from 01.01.1990).
On further, careful scrutiny of statute 289 (3), this Court is of the
view that the said provision is in the nature of a deeming fiction
applicable to the employees who fail to exercise their option as
required under these statutes within the prescribed time limit.
Statute 289 (3) further provides that in case the University
employees fail to exercise their option within the prescribed time
limit i.e. from 1.1.1990 to 30.06.1990, they shall be deemed to have
opted for the pension scheme. This Court is also of the considered
view that there is no ambiguity so far the provisions contained in
the first statute, 1990are concerned. Therefore, the case of the
petitioner needs to be considered in view of the provisions
contained in the Statute 289 of the First Statute, 1990.
14. On perusal of the record and documents annexed to the writ
application, this Court came across the letter dated 23.03.2011
under Annexure-D/3. The said letter has been introduced at the
instance of the O.P. Nos.3 & 4 by filing an affidavit. Letter dated
// 10 //
23.03.2011 has been issued by the F.A.-cum-Additional Secretary
to Govt. to the Registrar, Berhampur University. Under the
aforesaid letter, the Govt. of Odisha has taken a specific stand that
the change of option from CPF scheme to Pension scheme is to be
carried out as per the provisions contained in Statute 289 (1) of
Odisha University first Statute 1990. Accordingly, it was held in the
aforesaid letter that the resolution dated 30.08.1997 of the
Syndicate of the University is beyond the scope of the aforesaid
Statute. On a plain reading of the aforesaid letter of the Government
to the Registrar gives an impression that the Government has
rightly pointed out that the change of option shall be governed by
the provisions of the first statute, more specifically, statute 289.
Thus any decision or action taken contrary to the provisions
contained in Statute 289 would be contrary to the first Statute 1990
and the same would be invalid in law.
15. Reverting back to the facts of the present case, this Court is
required to determine the issue as to whether the petitioner has
exercised his option at all in terms of the first statute 1990 or not? it
was contended by learned counsel for the University that the prior
to the first statute came into force, the petitioner had opted for the
CPF scheme on dtd.18.04.1989. It was also contended by learned
counsel appearing for the Opposite Parties that the petitioner had
// 11 //
once again opted for CPF scheme on 10.11.1993. Therefore, the
petitioner had twice exercised his option to come under the CPF
scheme. This court on a careful analysis of the dates, is of the
considered view that the same is either prior to 1.1.1990 or after
30.06.1990. The relevant time for the purpose of statute 289 of the
first statute 1990 is the time period between 1.1.1990 and
30.06.1990. It is also the admitted position of the parties, that the
petitioner had not opted for any specific scheme within the
prescribed time limit as has been prescribed under statute 289 (1) of
the first statute 1990. This fact is evident from the letter dated
22.03.2016 under Annexure-14. On perusal of the aforesaid letter it
appears that the same has been issued under the signature of the
Deputy Registrar of Berhampur University to the first appellate
authority and the Registrar, Berhampur University under the RTI
Act.
16. The information vide letter dated 22.03.2016 was provided
on an application being filed by the petitioner under the RTI Act.
Letter dated 22.03.2016 under Annexure-14 to the writ application
clearly reveals that the Deputy Registrar on verification of the
record informed that the petitioner has not opted for either the CPF
or GPF during the period from 1.1.1990 to 30.06.1990. Further, on
perusal of the letter under Annexure-3 series, it appears that the
// 12 //
petitioner while admitting that earlier he had opted for the CPF had
subsequently made a request to change over to the pension scheme
vide his letter dated 04.02.2005 as well as the letter dated
18.04.2006. On further scrutiny of the record it appears that a group
of employees of the Berhampur University have also represented to
the Commissioner-cum-Secretary to the Chancellor of the
University with a prayer for change of option from CPF to pension
scheme vide their representation dated 20.03.2003 under Annexure-
4.
17. The relevant consideration in the present case, is whether
the petitioner has opted for any specific scheme in terms of the
statute 289 or not? No doubt the petitioner had initially opted for
CPF scheme i.e. prior to the statute 1990 came into force and
thereafter after the cut off date in the year 1993. However, so far the
facts of the present case is concerned, it is an admitted fact that the
petitioner had not opted for any specific scheme be it CPF or the
pension scheme. Therefore, the law is to be analysed keeping in
view the aforesaid facts while applying the provision of the Statute
289 to the facts of the present case. On an analysis of facts, this
Court is of the considered view that 289 (1) of the first statute 1990
provides that the petitioner should have opted for any specific
scheme within the prescribed time i.e. from 1.1.1990 to 30.06.1990.
// 13 //
However, the petitioner has not opted for any specific scheme
within the aforesaid stipulated time as provided in statute 289(1) of
the Statute, 1990. Therefore, irrespective of the fact that the
petitioner had opted for any particular scheme either prior to the
first statute came into force or after the prescribed time limit, the
case of the petitioner is to be treated as a case where the employee
of the University has not specifically opted for either the CPF or the
pension scheme within the prescribed time limit as provided under
statute 289 (1) of the first statute 1990.
18. Therefore, keeping in view the provision of statute 289, the
case of the petitioner is to be governed under statute 289 (3), that is,
the deeming provision in a case where the employee of the
university has not opted for any specific scheme within the
prescribed time limit as provided under Statute 289 (1).
19. Since, statute 289 (3) of the first statute, as has been quoted
hereinabove, provides that in a case where the university employee
fails to exercise the option as required under these statute (as
provided under Statute 289 (1)) within the prescribed time limit
again (as prescribed in Statute 289) he or she shall be deemed to
have opted for the pension scheme. Therefore, in the facts and
circumstances of the present case, where it is clear that the
petitioner has not opted for any specific scheme under statute 289
// 14 //
(1) his case shall be governed under Statute 289 (3) and by applying
deeming provision the case of the petitioner is to be considered
under the pension scheme irrespective of the fact that the petitioner
had exercised his option contrary to the provision contained in
statute 289 (1). Such exercise of option contrary to the statute 289
(1) is stated to be non est in the eye of law and the same will not
have any bearing so far the claim of the petitioner has involved in
the present writ application is concerned.
20. In course of his argument, learned counsel for the petitioner
referred to the judgment of this Court in Sarat Behera vs. State of
Odisha & others as well as batch of other matters decided on
31.03.2022. Referring to the aforesaid judgment, learned counsel
for the petitioner submits that the very same statute 289 was under
consideration by this Court. While deciding the above referred case
this Court has also taken note of the judgment of the Hon'ble
Supreme Court in Union of India & Anr. vs. S.L. Verma and
others, reported in (2006) 12 SCC 53. Further, this Court has also
referred to a judgment of this Court by a coordinate bench in Dr.
Dibakar Panigrahy & others vs. Berhampur University and others
in W.P.(C) No.13757 of 2015 decided on 03.07.2020. Finally, a
batch of writ application had been disposed of with a direction to
the Opposite Parties to consider the case of the petitioner afresh in
// 15 //
the light of the judgment in Dr. Dibarkar Panigrahy's case (supra)
and to take a final decision within a period of three months from the
date of communication of copy of the judgment in Sarat Behera's
case. Learned counsel for the Petitioner further referred to the
judgment of the Hon'ble Supreme Court in University of Delhi vs.
Shashi Kiran and others and a batch of similar other civil appeals
reported in 2022 SCC Online SC 594.
21. On perusal of the judgment in Sashi Kiran's case (supra), it
is seen that the Hon'ble Supreme Court observed that the same
involves adjudication at the question relating to the employee of
Delhi University by the Hon'ble Supreme Court of India. The issue
involved in the said case was whether the employees of the
University were to be governed under the CPF scheme or they will
be considered under the GPF and pension scheme. In the above
reported case, the Central Government issued a notification with
respect to change of the employees from CPF to GPF scheme. Such
notification was issued on 1.5.1987 contemplating that all the CPF
beneficiaries who were in service on 1.1.1986 and were still in
service will be deemed to have come over to GPF unless a contrary
was exercised by them in writing by 30.09.1987 to continue to be
governed under CPF. After detail analyzed of the facts, the Hon'ble
Supreme Court crystallized the fact by creating a legal fiction that
// 16 //
thus were different categories of employees. So far the facts of the
present case is concerned, the same would be governed by the
scenario-B and the case of the N.C. Bakshi and batch of other cases.
22. In N.C. Bakshi's case the factual scenario was that the
University employees who had not exercised the option by the
cutoff date contemplated under the notification dated 1.5.1987 and
were thus deemed to have come over to GPF, however, such
employees had exercised the option to remain under the CPF
scheme during first two extensions granted by the University
between 1.10.1987 to 29.02.1988 and were now praying that they
will be allowed to continue under GPF. Such cases were decided in
N.C. Bakshi and batch of other cases and the factual position of the
aforesaid are somewhat identical to the facts of the present writ
application. In N.C. Bakshi and batch of other cases the learned
Single Judge of the High Court while deciding the batch of cases
placed reliance on R.N. Virmani and batch of other cases to come to
a conclusion that the option to remain under CPF was exercised by
the petitioner after the cutoff date and only during the extension
granted by the University which extension were without any
authority.
23. Accordingly, learned Single Judge of the High Court had
come to a conclusion that in view of the law laid down by the
// 17 //
Hon'ble Supreme Court in S.L. Verma's case (supra) that when
employee is required to exercise his option in view of the
notification of the Central Government dated 1.5.1987 and if such
option is a positive option to be given only if an employee was
desirous of continuing under the CPF scheme and that too by
30.09.1987 and in the event no positive option was received from
an employee expressing his or her desire to continue with the CPF
scheme then the employee would automatically be covered by the
pension scheme by virtue of deeming legal fiction created under the
provisions of notification dated 1.5.1987. The aforesaid judgment
of the learned Single Judge Bench was affirmed by the Division
Bench of the High Court thereafter the Delhi University made an
appeal to the Supreme Court.
24. The Hon'ble Supreme Court while deciding the issue which
is reported in 2022 SCC Online SC 594 has affirmed the judgment
of the High Court both by the Hon'ble Single Judge as well as the
Division Bench and accordingly disposed of the appeal preferred by
Delhi University. While dispose of the appeal in terms of the order
passed in the aforesaid case and on perusal of the aforesaid
judgment in Sashi Kiran's case (supra) and batch of other cases,
this Court deems it relevant to quote hereinbelow the para-20 and
21 of the Judgment:-
// 18 //
20. According to the notification dated 01.05.1987 two
situations were contemplated. First, the deeming provision in
terms of which the concerned employee was taken to have
come over to GPF. The second situation being where a
conscious option was exercised before the cut-off date to
continue to be under CPF. R.N. Virmani Division Bench of the
High Court, as no conscious option was exercised by the cut-
off date. Consequently, the concerned employees must be
deemed to have come over to GPF. Logically, it would be
immaterial whether the concerned employee continued to
make contribution assuming himself to be covered under CPF,
even though contributions were made by the concerned
authorities. The benefit was therefore rightly granted in favor
of the employees and the entire contribution was directed to be
refunded. The University has chosen not to appeal against that
decision and thus the matter has attained finality.
21. Theoretically, extension of the same principle would be
that if no option was exercised before the cut-off date, but an
option was exercised after the cut-off date was extended; and
if no switchover could be allowed after the cutoff date, the
decisions rendered by the learned Single Judge and the
Division Bench in the N.C. Bakshi batch of cases wre also
quite correct. Consequently, irrespective of the fact that the
concerned employees had exercised the option to continue to
be under CPF, such exercise of option would be non est in the
eyes of law. That in fact is the ratio of the decision in S.L.
Verma's case. Thus, both these batches of cases were rightly
decided by the learned Single Judge and the Division Bench.
We, therefore, dismiss the appeal in N.C. Bakshi batch of
cases.
25. The view expressed by this Court in the present case gets
ample support from the view expressed by the Hon'ble Supreme
Court in para-20 and 21 of the judgment in Sashi Kiran's case
(supra). Therefore, this Court is of the considered view that since
the petitioner has not exercised any option under Statute 289 of the
// 19 //
first statute 1990 within the time prescribed in statute 289 (1)
specifically, therefore, the case of the petitioner is to be considered
in terms of statute 289 (3) that is by applying the deeming legal
fiction provided under the first statute 1990.
26. In view of the aforesaid analysis of law and facts further
keeping in view the provisions contained in Statute 288 and 289 of
the Odisha University First Statute, 1990, this Court directs the
Opposite Parties to consider the cases of the petitioner in view of
the legal position as has been discussed hereinabove as well as
keeping in view the judgment of the Hon'ble Supreme Court in
Sashi Kiran's case (supra) reported in 2022 SCC Online SC 594.
Further it is directed that in the event the Opposite Parties come to a
conclusion that the petitioner has not exercised any option under the
Odisha University first Statute, 1990 as prescribed under Statute
289 within the prescribed time limit then the case of the petitioner
is bound to be considered under statute 289 (3). Accordingly, the
case of the petitioner is to be considered under statute 289 (3). It is
needless to mention that the opposite parties are bound to extend
the benefits accruing in favour of the petitioner by applying the said
provision to the facts of the petitioner's case. It is further directed
that the Opposite Parties shall do well to consider the case of the
petitioner in the light of the aforesaid direction within a period of
// 20 //
two months from the date of communication of a certified copy of
this judgment by the Petitioner.
27. Accordingly, the writ petition is disposed of in terms of the
aforesaid observations. However, there shall be no order as to cost.
(A.K. Mohapatra)
Judge
Orissa High Court, Cuttack
The 3rd of August, 2023/ Anil.
Signature Not Verified
Digitally Signed
Signed by: ANIL KUMAR SAHOO
Designation: Junior Stenographer
Reason: Authentication
Location: High Court of Orissa
Date: 07-Aug-2023 18:24:13
