Punjab-Haryana High Court
Shingara Singh & Ors vs Punjabi University Patiala on 21 October, 2024
Author: Harsimran Singh Sethi
Bench: Harsimran Singh Sethi
Neutral Citation No:=2024:PHHC:141656
CM-9170-CWP-2024 in/& -1-
CWP-6540-2016 (O&M)& connected cases
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
108+233 (6 Cases) CM-9170-CWP-2024 in/&
CWP-6540-2016 (O&M)
Date of Decision :21.10.2024
Ranjit Singh and others ...Petitioners
Versus
Punjabi University Patiala and others ...Respondents
CM-9172-CWP-2024 in/&
CWP-3261-2016 (O&M)
Asha Rani Kalra and others ...Petitioners
Versus
Punjabi University Patiala and others ...Respondents
CM-9245-CWP-2024 in/&
CWP-8484-2016 (O&M)
Shingara Singh and others ...Petitioners
Versus
Punjabi University Patiala and others ...Respondents
CM-9246-CWP-2024 in/&
CWP-15153-2016 (O&M)
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Bhagwati Parsad and others ...Petitioners
Versus
Punjabi University Patiala and others ...Respondents
CM-7897-CWP-2023 &
CM-13082-CWP-2024 in/&
CWP-6446-2020(O&M)
Taranjit Singh and others ...Petitioners
Versus
Punjabi University Patiala and others ...Respondents
CM-6704-CWP-2024 in/&
CWP-14062-2019(O&M)
Jai Chand and others ...Petitioners
Versus
Punjabi University Patiala and others ...Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. K.S. Bassi, Advocate for the petitioners
in CWP-6540,8484,15153 of 2016 & CWP-14062-2019.
Mr. Ranjit Singh Kalra, Advocate for the petitioners
in CWP-3261-2016.
Mr. Sameer Sachdeva, Advocate for the petitionrs
in CWP-6446-2020.
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CM-9170-CWP-2024 in/& -3-
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Mr. Abhishek Kaushik, Advocate for
Mr. Vipul Jindal, Advocate respondent-University
***
Harsimran Singh Sethi, J. (Oral)
In the present bunch of petitions, the grievance being raised by
the petitioners is that though, they were working with the respondent-
Punjabi University, Patiala and have retired from service but they have not
paid their pension and rather they are being considered under the CPF
Scheme, which action on the part of the respondent-University is arbitrary,
illegal and discriminatory.
Learned counsel for the petitioners argues that claim of the
petitioners is squarely covered by the judgment of the Hon'ble Supreme
Court of India in Civil Appeal No.3797-2022 titled as University of Delhi
vs. Shashi Kiran and others, decided on 10.05.2022.
Certain facts may be noticed for the correct appreciation of the
issue in hand.
Respondent-University issued a pension scheme for its
employees w.e.f. 01.04.1990. As per the said pension scheme, the
employees, who were already continuing under the CPF scheme can opt for
the pension scheme within a period of four months and in case, any
employee does not opt for the said pension scheme, he/she will continue to
be governed under the CPF Scheme, which was already in operation as on
31.03.1990. It is a conceded fact that except two petitioners, the other
petitioners never opted for the pension scheme and consequently they
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remained under the CPF scheme till their retirement. Though, two
petitioners are claiming to have opted for the pension scheme but it is also a
conceded position that those two petitioners never deposited the required
CPF amount with the respondent-University which was ought to be
deposited so as to come under the pension scheme.
After the retirement from service, the petitioners have
approached this Court with a prayer that they be treated under the pension
scheme for all intent and purposes or now they be given opportunity to opt
for the said pension scheme.
Further, it has been mentioned that two employees namely,
Inderjit Kaur and Arvind Ritu Raj have already been granted the said benefit
by the respondent-University and hence, the respondent-University is bound
to accepts the claim of the petitioners being similarly situated to those
employees so as to avoid discrimination.
Last argument which has been raised by the learned counsel for
the petitioners is that under all circumstances, even if, the petitioners never
opted for the said pension scheme, keeping in view the judgment of the
Hon'ble Supreme Court of India in the case of Shashi Kiran (supra), the
petitioners are entitled to be afforded another opportunity for the purpose of
fresh opting for the pension scheme and hence, the respondent-University
should grant the petitioner the benefit of pension scheme from the date of
retirement and in the case of petitioners, who are already working, the said
benefit be granted as and when they retire from service.
Upon notice of motion, the respondents have filed reply
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wherein, it has been mentioned that once, the pension scheme was
formulated, which was made applicable uniformly upon all the employees,
the petitioners were under an obligation to opt for the said pension scheme
within a period of four months of the date of its notification. It has further
mentioned in the reply that as per the said pension scheme, the same was
only applicable for the employees, who opted for the said pension scheme
with a specific condition that in case, any employee does not opt for the
pension scheme he/she will continue to remain under the CPF scheme,
which was applicable as on 31.03.1990. As per the respondent-University,
none of the petitioners despite having knowledge of the said pension
scheme, have not opted for the pension scheme and hence, they continued to
remain under the CPF Scheme until their retirement. Respondent-University
has further mentioned that keeping in view the fact that even for the
employees who opted for the pension scheme, the University is facing
financial difficulty in releasing their pension and had to borrow a sum of
Rs.8 crore per month so as to discharge the said liability qua the retired
employees, who have already opted for the same, henceforth, the petitioners
cannot be given another opportunity to opt for the same.
I have heard learned counsel for the parties and have gone
through the record with their able assistance.
The question which arises before this Court is whether the
petitioners knowingly the provisions of the pension scheme so as to opt for
the same within a period of 04 months of its date of publication chose not to
apply for the same, can claim pension after the period of more than two
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decades by exercising a fresh option after a period of more than two and a
half decade.
It is a conceded fact between the parties that as per the pension
scheme, which was formulated by the respondent-University made
operational from 01.04.1990, the petitioners were bound to opt for the said
pension scheme and in case, any employee does not subscribe for the said
pension scheme within a period of four months from the issuance of the said
notification, the said employee was to continue under the CPF scheme. The
petitioners never opted for the pension scheme and continued to be a part of
the CPF Scheme upto the date of their retirement or even as of now with
regard to the petitioners, who are still in service.
Once, a scheme has been formulated and made operational with
certain terms and conditions, the petitioners cannot claim that they are
entitled for the fresh option to opt for the Pension Scheme and that too in
violation of the terms and conditions of the said scheme. The eligibility for
the grant of pension has to be seen under the terms and conditions of the
pension scheme and no modification or relaxation can be done by this Court
especially, when the petitioners failed to opt for the said pension scheme,
which was formulated and came into operation w.e.f. 01.04.1990 so as to
subscribe themselves for the grant of pension as admissible under the said
scheme.
The employees who opted for the same have been granted the
benefit of pension but the petitioners chose not to opt for the said pension
scheme so as to remain under the CPF scheme and hence, now after a period
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during which the petitioners could subscribe for the pension scheme, has
already came to an end, this Court cannot direct the authorities to relax the
provisions of the Pension Scheme in favour of the petitioners at the belated
stage especially, when the respondent-University are on record to say that
direction, if any, given by this Court to include the petitioners under the
pension scheme keeping in view the liability which the respondent-
University is already facing qua the employees who already opted for the
said pension scheme and are getting pension as the respondent-University is
taking loan of Rs.8.5 crore per month to discharge the said liability, this
Court cannot direct the respondent-University to grant the petitioners
another opportunity to opt for the pension scheme qua the employees, who
have already retired from service or those who are in service.
Second argument which has been raised by the learned counsel
for the petitioners is that the claim of the petitioners is covered by the
judgment of the Hon'ble Supreme Court of India in Shashi Kiran (supra), it
may be noticed that the facts in the case of Shashi Kiran (supra) were
entirely different as compared to the facts of the present case.
In the case of Shashi Kiran (supra) in the terms and conditions
of the pension scheme it was mentioned that in case, any employee does not
opt for the pension scheme, he/she will be automatically brought under the
pension scheme. That being so, in case, any employee has not opted for the
said pension scheme, the said employee automatically becomes the member
of the pension scheme.
Qua the employees who had opted to remain under the CPF
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scheme, Hon'be Supreme Court of India held that apart from Shashi Kiran
i.e. the petitioner therein, there were more than 2000 other employees who
opted out the pension scheme initially by exercising their option to remain
under the CPF scheme but those employees were allowed to change their
option to come under the pension scheme by the University by offering them
09 opportunities and in case, the University has allowed 2000 employees to
change their option, by which they exercised to remain under the CPF
scheme, to bring them under the pension scheme, then why the same cannot
be afforded once again to the petitioner Shashi Kiran so that there will be no
discrimination between the similarly situated employees.
The facts in the present cases are entirely different. No fact has
been brought on record that any employee who did not opt for the pension
scheme at an early stage was brought into pension scheme by the
respondent-University on their own hence, the facts existing in the case of
Shashi Kiran (supra) are missing in the case of the petitioners. The
judgment has to be made applicable keeping in view the facts of each case
and not by reading the same in isolation and the judgment has to be applied
in case the facts are identical or at least similar. Hence, the judgment in the
case of Shashi Kiran (supra) is not applicable upon the petitioners.
Further Hon'ble Supreme Court of India while deciding Civil
Appeal No.3842-2011 titled as, Pepsu Road Transport Corporation,
Patiala vs. Amandeep Singh and others, decided on 03.01.2017 interpreting
a similar pension scheme wherein, the employees were asked to submit their
option within a period of six months of the scheme with a condition that in
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case, an employee does not opt for the same, he/she will not brought under
the scheme, has held that the said clause is mandatory and whosoever not
opted for the scheme, cannot claim benefit of the scheme at later date so as
to opt for the said scheme by changing the option. Relevant portion of the
judgment is as under:-
13. A perusal of the Regulations indicates that the Regulations
are applicable to the following two categories of employees i.e. :
Who were/are appointed on or after the date of issue of
Regulations on whole-time and regular basis, and Who were
working immediately before the date of issue of Regulations and
opt for these Regulations.
14.The applicability of Regulations to the employees who were
working immediately before the date of issue of Regulations i.e.
15th June, 1992 was dependent on the opting for Regulations
within a period of six months from the date of issue of
Regulations as provided under Regulation 4.
15.Further as per Regulation 4 (iii) if an option is not exercised
within a period of six months from the date of issue of
Regulations, it shall be deemed that the employee has to continue
with the existing Contributory Provident Fund benefit, thus in the
event of non-exercise of option within the period prescribed, the
employee is deemed to continue in the existing CPF benefit. The
deeming clause has been incorporated in the statutory provisions
for achieving a purpose i.e. those who do not opt within six
months new scheme, they shall continue in the existing CPF
benefit. There are no exceptions engrafted in the deeming
provisions and the deeming is a legal fiction which embraces all
the employees who do not opt for new pension scheme. The suit
filed by the plaintiff had been decreed mainly on the ground that
notice inviting option has not been personally served on the
plaintiff. Whether notice is required to be personally served to an
employee before the period of six months as provided in
Regulation 4 may start running is the question to be answered. A
plain reading of the Regulations does not indicate that period of
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six months which is provided for submitting an option is
dependent on personal service of notice. Although, as noticed
above the Regulation has been forwarded on 15th June, 1992
itself to the General Manager of all the Depots and other places
and the letter dated 15th June, 1992 further contemplates putting
on the notice board in the Head Office and the Depots, the
Corporation has thus taken care of circulation of Regulation to all
concerned including the Head Office and all the Depots."
A bare perusal of the above would show that whosoever not
applied for the scheme within time frame granted, cannot claim benefit of
another option after expiry of time and the clauses of the scheme are
mandatory in nature.
Last argument which has been raised by the learned counsel for
the petitioners is that two employees namely Inderjit Kaur and Arvind Rity
Raj have been granted the said benefit.
Today, the respondent-University have filed an affidavit giving
details that in the case of Inderjit Kaur, she had opted for the pension scheme
but there was a controversy with regard to the required amount to be
deposited by her due to which she was not brought into pension scheme.
The said Inderjit Kaur approached the Civil Court and the findings have
been given by the Civil Court that not only the option but the substantial
amount has already been paid by her in terms of the scheme and, therefore,
she was entitled for the grant of benefit of pension scheme and, the said
Inderjit Kaur was given benefit only on the basis of the judgment of the
Civil Court which was binding between the parties hence, keeping in view
the same, the petitioners cannot claim that they are similarly situated as the
said Inderjit Kaur.
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With regard to employee namely, Arvind Ritu Raj, it has been
mentioned in the affidavit that the said employee had joined only in the year
2011 hence, he was automatically deemed to be part of the pension scheme
and is not similarly situated, as the petitioners were already working at the
time when the pension scheme was formulated w.e.f. 01.04.1990, keeping in
view the same, the claim of the petitioners that they have been discriminated
by the respondent-University by giving the same benefit to other two
similarly situated employees, cannot be accepted.
Keeping in view the facts and circumstances noticed
hereinbefore, no ground for interference by this Court is made out and the all
the writ petitions are accordingly dismissed.
CMs-9170,9172,9245,9246 & 6704 of 2024 & CM-7897-CWP-2023 &
CM-13082-CWP-2024
Present applications are also disposed of.
Any other civil miscellaneous application pending, is also
disposed of.
A photocopy of this order be placed on the file of connected
case.
October 21, 2024 (HARSIMRAN SINGH SETHI)
aarti JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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