Gaja Dhar Parashar vs State Engergy Depanr
2021 Latest Caselaw 7081 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                S.B. Civil Writ Petition No. 12906/2014

Gaja Dhar Parashar S/o Late Shri C.L. Parashar, aged 61 years,
R/ o A-173, Omshiv Colony, Jhotwara, Jaipur.
                                                                            ----Petitioner
                                        Versus
1.      State     Of     Rajasthan         Through        Its    Secretary,       Energy
        Department,          Government            Of     Rajasthan,         Secretariat,
        Jaipur.
2.      Jaipur Vidyut Vitran Nigam Limited Through Its Chairman,
        Vidhyut Bhawan, Janpath, Jyoti Nagar, Jaipur.
                                                                       ----Respondents

For Petitioner(s) : Mr. Punit Singhvi with Mr. Akshat Deewan For Respondent(s) : Mr. J.K. Singhi Sr. Adv. with Mr. Tarun Kumar Verma (for respondent No.2) Mr. Haikishan Saini Dy.G.C.

HON'BLE MS. JUSTICE REKHA BORANA Order 01/12/2021

The brief facts of the case are as under:

1. The petitioner was initially appointed as a Lower Division

Clerk with the erstwhile Rajasthan State Electricity Board (RSEB)

in the year 1976 as a regular employee. At that point of time, he

was allotted Contributory Provident Fund (CPF) Account Number

too. In the year 1993, after passing of the AMIE examination, the

petitioner was freshly appointed on the post of Junior Engineer

(Technical-I) with the same Department vide order dated

14.07.1993. Till the complete tenure of service, the petitioner was

governed by the CPF scheme and deduction qua the CPF was

made from his salary per month.

(2 of 7) [CW-12906/2014]

For the first time on 12.12.2011 the petitioner applied to the

Department for allotment of GPF Account Number on the premise

that as his appointment in the year 1993 was a fresh

appointment, he ought to have been governed by the GPF Scheme

and the GPF Pension Rules of 1989 which were applicable to the

fresh employees at that point of time. Vide the said application the

petitioner gave his option for shifting him in the GPF Scheme from

the CPF Scheme.

The said application of the petitioner was turned down vide

order dated 09.09.2011 on the ground that the last date for

exercising the option available to the employees was 30.06.1997

and thereafter no application entertaining any such request of any

employee could be entertained.

Aggrieved against the said rejection of the application and

non-grant of the GPF Pension to the petitioner, the present petition

has been filed.

The sole ground of the petitioner in the present petition is

that when he was appointed as a Junior Engineer on 14.07.1993,

his appointment was a fresh appointment and at that point of time

RSEB Employees Pension Regulations, 1988 (hereinafter referred

to as the Regulations of 1988) were governing the employees of

RSEB. The said regulations provided that all the fresh employees

would be governed by the GPF Scheme and would not be entitled

to opt for CPF Scheme.

It is the case of the petitioner that he was not required to

furnish his option at any point of time as in terms of the

Regulations of 1988, he was to be governed by the GPF Scheme

ipso facto.

(3 of 7) [CW-12906/2014]

Reply to the petition has been filed by the RSEB (now

JVVNL/RVPNL) as well as the State.

It has been averred by the respondents that during the

complete tenure of service the petitioner never availed the option

to shift from CPF Scheme to GPF Scheme which was granted to

the employees time and again vide general notices dated

19.05.1990, 17.09.1991, 27.01.1993, 08.05.1995, 22.08.1995,

04.02.1997 and 12.03.1999.

The respondents have further stated that after his date of

retirement i.e. 31.07.2012, the petitioner has already availed all

the benefits of CPF Scheme and said fact has not been disclosed in

the present petition which amounts to concealment of facts.

Learned counsel for the respondents has relied upon the

Division Bench judgment of this Court passed in D.B. Special

Appeal Writ No.1104/2014 [Rajasthan State Road

Transport Corporation & Ors. Vs. Devi Nath Dixit through

Legal Representatives] decided on 18.02.2020, wherein the

appeal of the Department was allowed and the order of the Single

Judge was set aside vide which the pensionary benefits were

granted to the respondent after adjusting the contributory funds

paid to him. The said appeal was decided in favour of the

Department only on the pretext that no option was exercised by

the employees at the relevant point of time.

Heard learned counsel for the parties and perused the

material available on record.

So far as the contention of the petitioner regarding his fresh

appointment in the year 1993 is concerned, a reference to the

definition of "existing employee" and "option" is relevant in this

context.

(4 of 7) [CW-12906/2014]

Section 3(k) of the Regulations of 1988 defines an "existing

employee" as under:

"(k) "Existing Employee" means an employee who is already in the regular time scales/service of the Board on or before the commencement of the RSEB Pension Regulations, 1988."

Section 3(l) defines "option" as under:

"(l) "Option" means a written consent of the existing regular employee for Pensionary and Gratuity benefits on the same lines/Rules as are being allowed to the employees of erstwhile employees of the E & M Department opted Board's service with Pensionary benefits or to continue to be the member of the CPF/EPF with benefits of RSEB Gratuity Rules, 1972 or Jodhpur CPF Scheme with benefit of gratuity under the Gratuity Act, 1972. Note:- Any person who is not covered under the definition of employee shall not be entitled to opt for pensionary and gratuity benefits as per Board's Govt. rules/regulations."

A bare perusal of the above definitions makes it clear that

the petitioner definitely falls under the definition of an "existing

employee" as he was already in service of the Board before the

commencement of the Regulations of 1998. Even after he was

appointed in the year 1993 vide a fresh appointment order, the

fact that he was already an employee of the Board having an

individual CPF Account Number cannot be overlooked.

So far as the term "option" is concerned, it specifically talks

of a written consent of the "existing" regular employee for

Pensionary and Gratuity benefits. It is not in dispute that vide the

above-mentioned notices, all the employees of the Board were

granted an opportunity to exercise their option of change from

CPF to GPF Scheme or GPF to CPF Scheme, if they so desired.

Even after the appointment of the petitioner in the year 1993

as a Junior Engineer, such option was granted in the year 1995

(5 of 7) [CW-12906/2014]

also but admittedly the petitioner did not exercise any such option

ever. The petitioner was well aware of the fact that he is a

member of the CPF Scheme and this fact remains undisputed that

post-retirement he has also availed the CPF benefits.

Notice dated 08.05.1995 and 22.08.1995 of the Board are

also relevant to be noted wherein an opportunity of exercising the

option was given to the employees of the Board even after their

date of retirement and to those who had not opted for the same

earlier. But the said notices too specifically provided that the same

would be applicable only to those employees who had not drawn

their retiring benefits admissible under the Contributory Provident

Fund Rules.

It is clear on record that despite several opportunities been

granted by the Department vide continuous general notices for

change in option, the petitioner did not ever choose to do so and it

was only in the year 2011, that is, just before his date of

retirement, he sought to exercise that option.

Learned counsel for the respondents has relied upon a

judgment passed by the Hon'ble Apex Court in 2014(2) WLC

(SC) Civil 436 Rajashtan Rajya Vidyut Vitran Nigam Ltd. Vs.

Dwarka Prasad Koolwal & Ors. The same was a matter

pertaining to the same set of Regulations of 1988 which are in

question in the present petition. In the said matter Hon'ble Apex

Court has held as under:

"42. In their writ petition filed in the High Court the respondents stated that by virtue of this order dated 23rd August, 1997, the calculation of pension, family pension and commutation of pension under the Pension and GPF Regulations, became more beneficial to the employees as against the provisions in the CPF Scheme. It is perhaps this computation benefit made available to the employees of the RSEB with the adoption of the Rajasthan Civil

(6 of 7) [CW-12906/2014]

Services (Pension) Rules, 1996 that prompted the respondents to switch-over from the CPF Scheme to the Pension and GPF Regulations. Unfortunately, by that time the period for making the switch- over had expired in terms of the 8th notice dated 4th February, 1997.

Therefore, since the respondents were unable to take advantage of the beneficial computation under the Pension and GPF Regulations read with the Rajasthan Civil Services (Pension) Rules, 1996 they seem to have set up a case of being unaware of the various notices issued by the RSEB from time to time over a period of 8 years."

"43. All that we can infer from the conduct of the respondents is that they went along with the CPF Scheme so long as it was beneficial to them, but when the calculation of pension, family pension and commutation of pension underwent an alteration pursuant to the order dated 23rd August, 1997 the respondents had a change of heart and sought to take advantage of the revised manner of computation provided for in the Rajasthan Civil Services (Pension) Rules, 1996. We can only say that the argument of a lack of awareness of the switch-over option appears to be nothing but a self-serving argument."

Hon'ble Apex Court further held as under: "70. Insofar as the present appeals are concerned, the respondents who are members of the CPF Scheme were given several opportunities of switching over to the Pension Scheme and the GPF Scheme under the Pension Regulations and the GPF Regulations respectively but they chose not to do so. The question whether under these circumstances pension is a bounty or a charity becomes completely irrelevant. The entitlement to pension was available to the respondents but they chose not to avail the entitlement for reasons personal to them. Having taken a decision in this regard the respondents cannot now raise an argument of pension not being a bounty and therefore requiring the RSEB to give them another option to switch over to the Pension and GPF Regulations.

71. Under the circumstances, we find no merit in the contentions urged by the respondents and consequently, the appeals of the RSEB deserve to be allowed."

(7 of 7) [CW-12906/2014]

In view of the above observations and ratio laid down in the

judgments passed by Hon'ble Apex Court as well as the Division

Bench of this Court, the petitioner cannot be held entitled to the

GPF Scheme and the GPF Pension.

Hence, the present writ petition stands dismissed.

All the pending applications stands disposed off accordingly.

(REKHA BORANA),J

AARZOO ARORA /112

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