Orissa High Court
Baijayanti Mohanty vs Union Of India And Others ....... ... on 8 May, 2025
Author: Sangam Kumar Sahoo
Bench: Sangam Kumar Sahoo
THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 7336 of 2025
(In the matter of an application under Article 226 and 227 of the
Constitution of India)
Baijayanti Mohanty ....... Petitioner
-Versus-
Union of India and Others ....... Opposite Parties
For the Petitioner : M/s. Adisha Mohanty, Mr. Pritish
Mohapatra, Ms. Manisha
Das, Advocates
For the Opposite Parties: Ms. Sanghamitra Rajguru,
Senior Panel Counsel
CORAM:
THE HONOURABLE SHRI JUSTICE SANGAM KUMAR SAHOO
AND
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
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Date of Hearing: 05.05.2025 Date of Judgment: 08.05.2025
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S.S. Mishra, J. The present Writ Petition is filed assailing the
order dated 21.10.2024 passed by the learned Central
Administrative Tribunal, Cuttack Bench, Cuttack in O.A.
No.260/00294 of 2020, whereby the learned Tribunal has turned
down the application filed by the Petitioner seeking the benefit of
switching over from the Contributory Provident Fund (CPF)
Scheme to the General Provident Fund (GPF)-cum-Pension
Scheme due to delayed application.
Facts of the Case:
2. The Petitioner, joined as a Trained Graduate Teacher (TGT)
in English in Kendriya Vidyalaya Sangathan (KVS) on
12.09.1985 and was initially posted at K.V. Malkapuram,
Visakhapatnam, Andhra Pradesh. Upon joining, she was enrolled
in the CPF Scheme, then applicable to KVS employees.
3. On 01.09.1988, the KVS issued an Office Memorandum
(OM) inviting employees to exercise an option to switch from the
CPF Scheme to the GPF-cum-Pension Scheme. The Petitioner
continued in service till her superannuation on 31.10.2012 while
serving at KV-II, Bhubaneswar.
4. More than six years after retirement, on 12.01.2019, she filed
a RTI application seeking a copy of the said 1988 Office
Memorandum. Over the next several months, she filed multiple
RTI applications and grievances seeking records regarding her
alleged option exercise and other related correspondence. It was
informed to her by the KVS authorities that no such option form
existed in her file, though secondary records indicated her
knowledge and conduct consistent with remaining in the CPF
Scheme.
5. Subsequently, on 16.07.2019, she submitted a representation
to the Commissioner, KVS, which was followed by the present
petitioner ventilating her grievance through Centralised Public
Greivance Redressal and Monitoring System (CPGRAMS)
(Website) and ultimately communication from KVS on
06.09.2019 and again on 02.01.2020, refusing the proposal of the
petitioner for one time permission for change over from CPF to
GPF pension scheme citing policy restrictions was issued.
Eventually, she filed the O.A. before the CAT, Cuttack Bench in
2020, more than seven years after her retirement.
Submissions:
6. The Petitioner relied mainly on the decision rendered by the
Hon'ble Central Administrative Tribunal, Madras Bench in Usha
Rajagopalan vs. Kendriya Vidyalaya Sangathan (O.A. No.1248
of 2019), wherein the Tribunal directed the KVS to allow
similarly placed applicants the benefit of the GPF-cum-Pension
Scheme from the date of their appointments or deemed date of
changeover, despite their initial CPF membership.
7. The opposite parties, on the other hand, contended that the
Petitioner had ample opportunity during her service tenure to
exercise her option and to raise objections, if any. They argued
that the Petitioner had accepted CPF deductions throughout her
service, received CPF statements, and filed income tax returns
based on those contributions. They further contended that the
O.A. was grossly delayed and barred by limitation.
Observations:
8. Upon perusal of the record and the submissions made, this
Court finds that the Petitioner was admittedly in service during
the issuance of the Office Memorandum dated 01.09.1988 and
continued to serve for a further 24 years thereafter. Her
contemporaries who exercised the option to switch to the GPF
Scheme were allowed to do so, and the Petitioner never protested
her continued coverage under the CPF Scheme during her entire
service tenure or immediately after retirement.
9. The Petitioner's contention that she was unaware of the
option or that her option form was not traced lacks credibility in
light of her conduct she accepted CPF deductions, received and
acted upon CPF account statements, and even acknowledged a
revised CPF account number without protest.
The aforementioned aspects of the matter have been carefully
dealt by learned Tribunal leading to the conclusion which is
reflected in para 14 of the impugned order. For the convenience
of ready reference, para 14 of the order is reproduced hereunder:-
"14. In the case in hand, admittedly, the OM of
the KVS for submission of option came into
effect vide OM dated 01.09.1988 and, at that
time, applicant was continuing as TGT
(English) in KVS at KV, Malkapuram,
Visakhapatnam, A.P. but for the reasons best
known the authority of the KV, Malkapuram,
Visakhapatnam has not been made as one of the
respondents in this OA. Be that as it may, she
continued to discharge the duty as an employee
of KVS, after issuance of the OM dated
01.09.1988, for a period of 24 years, i.e. till her
retirement on 31.10.2012. Her counterpart
employees availed the benefit of the OM dated
01.09.1988 cannot be disputed and the
contention of the applicant was not aware
about the same and therefore she did not avail
the benefit is unbelievable. It is also an
admitted fact that she did not take any step over
a period of more than seven years from the date
of her retirement. She was allotted a new CPF
A/c number is not in dispute and she did not
also question at the relevant time when new
CPF number was allotted to her. It is the
specific case of the respondents that at this
distant point of time of 30 years, her option
form is not traceable. Fact remains that she
had never made any representation raising
protest or objection for counting her under
CPF scheme. Her contributions were regularly
being deducted from her salary for years
together and she was also aware of
contribution made by her and on behalf of the
authority and the annual amount sheet which
the respondents used to supply regularly, while
GPF statements were being issued to her
counterpart employees, who had opted to
switch over to GPF/Pension Scheme, and on
the basis of statements applicant had submitted
her income tax return for a long period.
Similarly, the plea of the applicant that if no
option is received by the cutoff date, the
employees should be deemed to have come over
the Pension Scheme is also not tenable in the
eyes of law because she did not raise any such
objection at the relevant point of time when she
was not brought under the GPF Scheme while
her counterpart employee were brought over
under the Scheme on exercise of their option.
This shows that this is an afterthought plea
taken by the applicant taking the advantage of
non-availability of her option after a period of
more than 32 years. Law is well settled that one
cannot take the advantage of his/her own
wrong/jus ex injuria non oritur as held by the
Hon'ble Apex Court in the case of Lily Thomas
v. Union of India & Ors., AIR 2000 SC 1650.
Further, law is also well settled that one cannot
get the benefit in an indirect manner if he/she is
not entitled to get the same directly as held by
the Hon'ble Apex Court in the case of
Supertech Ltd. Vs. Emerald Court Owner
Resident Welfare Association and Ors, (2024)
1 SCC (L&S) 819. Had the applicant produced
any such evidence that though she had opted to
switch over to GPF/Pension Scheme, the same
was not considered, the matter would have been
different. The time passers coupled with the fact
of allotment of new CPF A/c number, deduction
of amount from her salary towards CPF
contribution, yearly statement, Pay slips etc.
clearly establishes that the applicant remained
in the CPF Scheme as per her wish and merely
because the original documents relating to
exercise to option was not produced that should
not be a ground to ignore the ample materials
cannot be a ground interfere in the matter at
this belated stage."
10. The Tribunal rightly distinguished the case of Usha
Rajagopalan (supra) on facts, noting that the applicants therein
acted promptly after retirement (within 1-2 years), whereas the
present Petitioner approached the Tribunal after a lapse of more
than seven years. The plea that the absence of the original option
form entitles her to deemed switch-over is untenable in law,
particularly when the available evidence overwhelmingly points
to her conscious continuation under the CPF Scheme.
11. The petitioner approached the Tribunal hopelessly at a
belated stage. She has approached the Tribunal after 24 years of
the real cause of action arose and 7 years after her retirement.
Therefore, the case of the petitioner is not only inordinately
delayed, but also suffers with laches. In order to explain the
sufficient cause for delay, the petitioner firstly, pleaded her
ignorance and lack of knowledge regarding her rights. Secondly,
she has contended that she could only approach the Court after
the judgement of Hon'ble Madras High Court passed in W.P.
No.19215 of 2015, in which the Hon'ble High Court upheld the
order of Central Administrative Tribunal, Chennai in O.A.
No.736 of 2013. Both the explanations are not acceptable
inasmuch as during her service, all her colleagues have opted for
the option as per 1988 OM, whereas, she has blissfully ignored
the same. The learned Central Administrative Tribunal, Chennai
in the aforementioned case on which the petitioner is placing
reliance on i.e. O.A. No.736 of 2013, has pronounced the
judgement on 02.06.2015 which eventually was upheld by the
Hon'ble Madras High Court on 24.02.2017. However, the
petitioner has approached the Tribunal after five years from the
date of the order of the Tribunal and three years after the Hon'ble
Madras High Court upheld the same. Therefore, both the
explanation offered by the petitioner is fathomable so as to
explain the laches and doesn't inspire any confidence.
The Hon'ble Supreme Court in numerous cases has already
settled the law in that regard.
The Hon'ble Supreme Court in Chennai Metropolitan
Water Supply & Sewerage Board v. T.T. Murali Babu1, held
thus:
"16. Thus, the doctrine of delay and laches
should not be lightly brushed aside. A writ
(2014) 4 SCC 108
court is required to weigh the explanation
offered and the acceptability of the same. The
court should bear in mind that it is exercising
an extraordinary and equitable jurisdiction. As
a constitutional court it has a duty to protect
the rights of the citizens but simultaneously it is
to keep itself alive to the primary principle that
when an aggrieved person, without adequate
reason, approaches the court at his own leisure
or pleasure, the court would be under legal
obligation to scrutinise whether the lis at a
belated stage should be entertained or not. Be it
noted, delay comes in the way of equity. In
certain circumstances delay and laches may not
be fatal but in most circumstances inordinate
delay would only invite disaster for the litigant
who knocks at the doors of the court. Delay
reflects inactivity and inaction on the part of a
litigant -- a litigant who has forgotten the basic
norms, namely, "procrastination is the greatest
thief of time" and second, law does not permit
one to sleep and rise like a phoenix. Delay
does bring in hazard and causes injury to the
lis."
Similar views were reiterated by the Hon'ble Supreme
Court in Union of India v. N. Murugesan2, in which the Court
held thus:-
"21. The word "laches" is derived from the
French language meaning "remissness and
slackness". It thus involves unreasonable delay
or negligence in pursuing a claim involving an
equitable relief while causing prejudice to the
other party. It is neglect on the part of a party
to do an act which law requires while asserting
a right, and therefore, must stand in the way of
the party getting relief or remedy.
(2022) 2 SCC 25
22. Two essential factors to be seen are the
length of the delay and the nature of acts done
during the interval. As stated, it would also
involve acquiescence on the part of the party
approaching the court apart from the change in
position in the interregnum. Therefore, it would
be unjustifiable for a Court of Equity to confer
a remedy on a party who knocks its doors when
his acts would indicate a waiver of such a right.
By his conduct, he has put the other party in a
particular position, and therefore, it would be
unreasonable to facilitate a challenge before
the court. Thus, a man responsible for his
conduct on equity is not expected to be allowed
to avail a remedy."
In similar light, the Hon'ble Supreme Court in Judgment of
Mool Chandra v. Union of India & Another3 emphasized that
any delay must be justified by "sufficient cause", in the absence
of such justification, the delay shall not be condoned. The
Hon'ble Court held as follows:-
"...It is not the length of delay that would be
required to be considered while examining the
plea for condonation of delay, it is the cause for
delay which has been propounded will have to
be examined. If the cause for delay would fall
within the four corners of "sufficient cause",
irrespective of the length of delay same
deserves to be condoned. However, if the cause
shown is insufficient, irrespective of the period
of delay, same would not be condoned."
(2025) 1 SCC 625
In the present case, the Petitioner has failed to offer any
convincing explanation or sufficient cause for the inordinate
delay in asserting her rights. Her inaction for several years
renders the plea barred both on grounds of limitation and equity
being suffered by laches.
Moreover, the legal maxim "Vigilantibus Non Dormientibus
Jura Subveniunt"- the law assists those who are vigilant and not
those who sleep over their rights, aptly applies in the instant case.
The Petitioner's indolence and delay in asserting her claim
disentitle her from invoking the jurisdiction of this Court seeking
quashment of learned Tribunal's well-reasoned order.
Conclusion:
12. In view of the discussions above, this Court finds no
infirmity in the impugned order passed by the Central
Administrative Tribunal, Cuttack Bench, in O.A. No. 260/00294
of 2020. Accordingly, the Writ Petition stands dismissed.
(S.S. Mishra)
Judge
S.K. Sahoo, J. I agree.
Judge
Designation: Personal Assistant
Reason: Authentication
The High
Location: High Court of Orissa, Court of Orissa, Cuttack
Cuttack.
Date: 08-May-2025 19:35:35 Dated the 8th May , 2025/ Subhasis Mohanty
