Raj.Rajya Vidyut V Nigam Ltd. Vs Dwarka Prasad Koolwal .

Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7483 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 29639 of 2012)

Rajasthan Rajya Vidyut Vitran Nigam Ltd. .…Appellant

versus Dwarka Prasad Koolwal & Ors. …Respondents

WITH CIVIL APPEAL NO. 7484 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 30061/2012) CIVIL APPEAL NO. 7485 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 30096/2012) CIVIL APPEAL NO. 7486 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 30098/2012) CIVIL APPEAL NO. 7487 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 30112/2012) CIVIL APPEAL NO. 7488 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 30116/2012) CIVIL APPEAL NO. 7489 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 30152/2012) CIVIL APPEAL NO. 7490 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 30182/2012) CIVIL APPEAL NO. 7491 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 30187/2012) CIVIL APPEAL NO. 7492 OF 2014

Civil Appeal Nos. 7483 of 2014 etc.etc. Page 1 of 47 (Arising out of SLP (C) No.29639 of 2012 etc.etc.)

Page 2

(Arising out of Special Leave to Appeal (Civil) No. 30203/2012) CIVIL APPEAL NO. 7493 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 30264/2012) CIVIL APPEAL NO. 7494 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 30311/2012) CIVIL APPEAL NO. 7495 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 30321/2012) CIVIL APPEAL NO. 7496 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 30352/2012) CIVIL APPEAL NO. 7498 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 30355/2012) CIVIL APPEAL NO. 7499 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 30367/2012) CIVIL APPEAL NO. 7500 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 30384/2012) CIVIL APPEAL NO. 7501 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 30385/2012) CIVIL APPEAL NO. 7502 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 30536/2012) CIVIL APPEAL NO. 7503 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 30577/2012) CIVIL APPEAL NO. 7504 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 30578/2012) CIVIL APPEAL NO. 7505 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 30579/2012) CIVIL APPEAL NO. 7506 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 30580/2012) CIVIL APPEAL NO. 7507 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 30658/2012) CIVIL APPEAL NO. 7508 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 30674/2012) CIVIL APPEAL NO. 7509 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 30706/2012) CIVIL APPEAL NO. 7510 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 30773/2012) Civil Appeal Nos. 7483 of 2014 etc.etc. Page 2 of 47 (Arising out of SLP (C) No.29639 of 2012 etc.etc.)

Page 3

CIVIL APPEAL NO. 7511 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 30777/2012)

CIVIL APPEAL NO. 7512 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 30780/2012)

CIVIL APPEAL NO. 7513 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 30783/2012)

CIVIL APPEAL NO. 7514 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 30788/2012)

CIVIL APPEAL NO. 7515 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 31030/2012)

CIVIL APPEAL NO. 7516 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 31053/2012)

CIVIL APPEAL NO. 7517 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 31215/2012)

CIVIL APPEAL NO. 7519 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 31421/2012)

CIVIL APPEAL NO. 7520 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 38428/2012)

CIVIL APPEAL NO. 7521 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 39208/2012)

CIVIL APPEAL NO. 7522 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 39260/2012)

CIVIL APPEAL NO. 7523 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 39903/2012)

CIVIL APPEAL NO. 7525 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 85/2013)

CIVIL APPEAL NO. 7526 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 89/2013)

CIVIL APPEAL NO. 7527 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 90/2013)

CIVIL APPEAL NO. 7528 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 91/2013)

CIVIL APPEAL NO. 7529 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 94/2013)

Civil Appeal Nos. 7483 of 2014 etc.etc. Page 3 of 47 (Arising out of SLP (C) No.29639 of 2012 etc.etc.)

Page 4

CIVIL APPEAL NO. 7530 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 141/2013)

CIVIL APPEAL NO. 7531 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 144/2013)

CIVIL APPEAL NO. 7532 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 150/2013)

CIVIL APPEAL NO. 7533 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 235/2013)

CIVIL APPEAL NO. 7534 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 280/2013)

CIVIL APPEAL NO. 7535 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 281/2013)

CIVIL APPEAL NO. 7536 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 785/2013)

CIVIL APPEAL NO. 7537 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 855/2013)

CIVIL APPEAL NO. 7538 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 858/2013)

CIVIL APPEAL NO. 7539 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 863/2013)

CIVIL APPEAL NO. 7540 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 866/2013)

CIVIL APPEAL NO. 7541 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 1021/2013)

CIVIL APPEAL NO. 7542 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 1082/2013)

CIVIL APPEAL NO. 7543 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 1136/2013)

CIVIL APPEAL NO. 7544 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 1176/2013)

CIVIL APPEAL NO. 7545 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 1179/2013)

CIVIL APPEAL NO. 7546 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 1205/2013)

Civil Appeal Nos. 7483 of 2014 etc.etc. Page 4 of 47 (Arising out of SLP (C) No.29639 of 2012 etc.etc.)

Page 5

CIVIL APPEAL NO. 7547 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 1368/2013)

CIVIL APPEAL NO. 7548 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 1371/2013)

CIVIL APPEAL NO. 7549 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 1433/2013)

CIVIL APPEAL NO. 7550 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 1474/2013)

CIVIL APPEAL NO. 7551 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 1554/2013)

CIVIL APPEAL NO. 7552 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 1565/2013)

CIVIL APPEAL NO. 7553 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 1635/2013)

CIVIL APPEAL NO. 7554 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 1650/2013)

CIVIL APPEAL NO. 7555 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 1659/2013)

CIVIL APPEAL NO. 7556 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 1664/2013

CIVIL APPEAL NO. 7557 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 3883/2013)

CIVIL APPEAL NO. 7558 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 4033/2013)

CIVIL APPEAL NO. 7559 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 4058/2013)

CIVIL APPEAL NO. 7560 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 4115/2013)

CIVIL APPEAL NO. 7561 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 4322/2013)

CIVIL APPEAL NO. 7562 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 5306/2013)

CIVIL APPEAL NO. 7563 OF 2014 (Arising out of Special Leave to Appeal (Civil) No. 5786/2013)

CIVIL APPEAL NO. 7564 OF 2014 Civil Appeal Nos. 7483 of 2014 etc.etc. Page 5 of 47 (Arising out of SLP (C) No.29639 of 2012 etc.etc.)

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(Arising out of Special Leave to Appeal (Civil) No. 9983/2013) CIVIL APPEAL NO. 7565 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 9984/2013) CIVIL APPEAL NO. 7566 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 9985/2013) CIVIL APPEAL NO. 7567 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 9987/2013) CIVIL APPEAL NO. 7568 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 9988/2013) CIVIL APPEAL NO. 7569 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 9989/2013) CIVIL APPEAL NO. 7570 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 9990/2013) CIVIL APPEAL NO. 7571 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 9991/2013) CIVIL APPEAL NO. 7572 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 9993/2013) CIVIL APPEAL NO. 7573 OF 2014

(Arising out of Special Leave to Appeal (Civil) No. 6442/2014)

J U D G M E N T Madan B. Lokur, J.

1. Leave granted. 2. The primary question for consideration in all these appeals

is whether the respondents were entitled, as of right, to one more

opportunity to switch-over from the Contributory Provident Fund

Scheme of which they were members, to the Pension Scheme

and the General Provident Fund Scheme implemented by the

appellant with effect from 28th November, 1988?

Civil Appeal Nos. 7483 of 2014 etc.etc. Page 6 of 47 (Arising out of SLP (C) No.29639 of 2012 etc.etc.)

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Broadly speaking, the contention of the respondents is that

they were unaware of the switch-over option since they were

posted in remote areas of Rajasthan, while the contention of the

appellant is that a large number of opportunities extending over

8 years were given to the respondents to exercise the switch-

over option and that they could not claim any right to any further

opportunity to make the switch over.

3. In our opinion, the contention of the appellant must be

accepted and the impugned judgment and order dated 17th May,

2012 accepting the contention of the respondents has to be set

aside.

The facts

4. The Rajasthan State Electricity Board (for short ‘the RSEB’)

had introduced a Contributory Provident Fund Scheme in 1972

(for short ‘the CPF Scheme’) for the benefit of its employees.

This was in exercise of powers conferred by the Employees

Provident Funds and Miscellaneous Provisions Act, 1952.

5. On 28th November, 1988 the RSEB, in exercise of powers

conferred by Section 79 of the Electricity (Supply) Act, 1948

made the Employees Pension Regulations, 1988 (for short ‘the

Civil Appeal Nos. 7483 of 2014 etc.etc. Page 7 of 47 (Arising out of SLP (C) No.29639 of 2012 etc.etc.)

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Pension Regulations’) and the Employees General Provident Fund

Regulations, 1988 (for short ‘the GPF Regulations’).

6. Both the set of regulations came into effect on 28th

November, 1988 and the existing employees of the RSEB on the

cut-off date were entitled to exercise an option of either

continuing as members of the existing CPF Scheme or switching

to the Pension Scheme and the GPF Scheme under the Pension

Regulations and the GPF Regulations respectively within a period

of 90 days from the date of commencement of the GPF Scheme.

Such of the employees of the RSEB, who joined after 28th

November, 1988 were automatically governed by the Pension

Regulations and the GPF Regulations. The switch-over option

was, therefore, available to only those employees who were on

the rolls of the RSEB on the cut-off date.

7. On 6th January, 1989 the RSEB issued a notice giving an

option to the existing employees (including the respondents) to

switch over from the existing CPF Scheme to the Pension and GPF

Regulations.

8. The notice stated, inter alia, that the switch-over option

should be exercised by the employee in writing within a period of

Civil Appeal Nos. 7483 of 2014 etc.etc. Page 8 of 47 (Arising out of SLP (C) No.29639 of 2012 etc.etc.)

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90 days from the date of its issue and that no request for

extension of time, seeking clarification or review would be

entertained. Significantly, it was stated in the notice that if an

employee does not exercise his clear option within the specified

time limit, he shall be deemed to have retained the benefits

available to him under the CPF Scheme to which he was already

entitled. The notice set out the procedure for exercising the

option, which is forwarding it to the concerned officers.

9. The notice also stated that it should be given wide publicity

by pasting it on the notice board of various offices under the

RSEB. It was stated in the notice that pasting would be treated

as sufficient notice for all the Board employees for whom it was

intended.

10. The respondents did not exercise their option in terms of the

notice dated 6th January, 1989 although as many as 2741

employees exercised their switch-over option.

11. The RSEB issued a second notice dated 4th April, 1989

extending the period for exercising the switch-over option for

another 45 days after the expiry of the period of the first option

of 90 days given in the first notice dated 6th January, 1989. The

Civil Appeal Nos. 7483 of 2014 etc.etc. Page 9 of 47 (Arising out of SLP (C) No.29639 of 2012 etc.etc.)

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second notice was issued since the first notice was not published

in Hindi which inhibited the employees of the RSEB in exercising

the switch-over option within the prescribed time limit.

12. The second notice did not mention anything about giving it

wide publicity but it appears that in keeping with the mandate

mentioned in the first notice dated 6th January, 1989 this notice

too was given wide publicity since it resulted in as many as

31,217 employees exercising their switch-over option within the

period of 45 days.

13. A third notice dated 19th May, 1990 was issued by the RSEB

extending the period of the switch-over option up to 30 th June,

1990 that is for a period of about 40 days. The occasion for

issuing the third notice was that references were received by the

RSEB from ‘various corners’ to extend the period of exercising

the option for a further period of 45 days.

14. In terms of the Pension Regulations daily rated/work charge

employees were excluded from the scope of the Pension

Regulations and even though some of them were given a regular

pay scale with effect from 1st April, 1989 they could not exercise

the switch-over option since they were not on a regular pay

Civil Appeal Nos. 7483 of 2014 etc.etc. Page 10 of 47 (Arising out of SLP (C) No.29639 of 2012 etc.etc.)

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scale/service on the cut-off date that is 28th November, 1988.

The third notice was issued to give the benefit of the Pension and

GPF Regulations to such daily rated/work charge employees as

well as to the regular employees covered by the CPF Scheme. It

was mentioned in the notice that this would be the last and final

opportunity for exercising the switch-over option and that the

employees, both regular as well as daily rated/work charge

employees should ensure that their option forms were received

by the concerned authority within the prescribed time limit that is

30th June, 1990 positively. As many as 3972 employees of the

RSEB exercised their switch-over option in response to the third

notice.

15. The RSEB issued a fourth notice dated 17th September, 1991

extending the time limit for exercising the switch-over option by

a further period of 90 days. This was on the basis of references

having been made to the RSEB from ‘various corners’ to allow

one more opportunity to exercise the option for obtaining the

benefits under the Pension and GPF Regulations. The fourth

notice mentioned that in case an employee did not exercise the

option within the period of 90 days it would be deemed that he

Civil Appeal Nos. 7483 of 2014 etc.etc. Page 11 of 47 (Arising out of SLP (C) No.29639 of 2012 etc.etc.)

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had retained the benefits available to him under the CPF

Scheme. In response to the fourth notice, as many as 2741

employees of the RSEB exercised their option.

16. A fifth notice was issued by the RSEB on 27th January, 1993

which was in the form of an order. This related to counting of the

period of service for pension purposes of work charge employees

who were absorbed or appointed to regular posts under the

RSEB.

17. It was stated that the work charge employees of the RSEB

who were absorbed/appointed on a regular basis would be

allowed to exercise the switch-over option subject to certain

conditions. The option to switch over was to be exercised in

writing up to 15th March, 1993 that is within a period of about 45

days. It was specifically stated in the order that those employees

who do not exercise the option within the aforesaid period would

be deemed to have retained the benefits under the CPF Scheme.

The benefit of the order dated 27th January, 1993 was also

extended to those work charge employees who were brought on

a regular post on or after 28th November, 1988 but had died

before exercising their option. In respect of these persons, the

Civil Appeal Nos. 7483 of 2014 etc.etc. Page 12 of 47 (Arising out of SLP (C) No.29639 of 2012 etc.etc.)

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order stated that they would be deemed to have opted for

pension unless the members of the family of the deceased

specifically make a request that they may be paid CPF benefits

due to the deceased. This order also conferred a benefit on those

employees of the RSEB who had retired after 28th November,

1988 but prior to the issue of the order and had received the

retirement benefits admissible under the CPF Scheme. They too

were made entitled to exercise the switch-over option subject to

certain conditions. As many as 2749 employees exercised their

option in response to the fifth notice.

18. A sixth notice was issued by the RSEB on 8th May, 1995

extending the benefit of the switch-over option to the existing

employees till 31st March, 1996 that is for an extended period of

about 320 days. It was mentioned that in case the switch-over

option was not exercised, it shall be deemed that the employee

has retained the existing CPF benefits. The number of options

exercised in response to the sixth notice was 4460.

19. A seventh notice was issued by the RSEB on 22nd August,

1995 as a result of representations received from retired

employees who desired to switch to the Pension and GPF

Civil Appeal Nos. 7483 of 2014 etc.etc. Page 13 of 47 (Arising out of SLP (C) No.29639 of 2012 etc.etc.)

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Regulations but had failed to avail of the opportunity despite the

notice dated 17th September, 1991 either because of ignorance

or some erroneous understanding. The period for exercising the

option was available till 30th November, 1995. The notice

mentioned that pasting the seventh notice on the notice boards

of the various offices of the RSEB would be treated as sufficient

notice to all the retired employees of the RSEB.

20. The eighth and final notice was issued by the RSEB on 4th

February, 1997 in which it was stated that all employees in

regular pay scales on the cut-off date of 28th November, 1988

who could not avail the opportunity of exercising the switch-over

option but who were still in the services of the RSEB could now

exercise their option by 30th June, 1997. It was reiterated that

those employees who could not exercise their option before the

final date would be deemed to have retained the CPF benefits

available to them. The RSEB received the options of 5076

employees in response to the eighth notice.

21. Eventually, on 12th March, 1999 the RSEB communicated a

decision to the effect that several opportunities had been given

to the employees to switch over to the Pension and GPF

Civil Appeal Nos. 7483 of 2014 etc.etc. Page 14 of 47 (Arising out of SLP (C) No.29639 of 2012 etc.etc.)

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Regulations but despite this, representations were pouring in to

allow one more opportunity to switch to the pension benefits. It

was felt that it would not be desirable to provide any more such

opportunities otherwise it would become a never ending exercise.

Therefore, it was made clear that any request for allowing an

opportunity to exercise the switch-over option would not be

entertained under any circumstances.

22. In the meanwhile, a meeting of the Whole-Time Members of

the RSEB and the Heads of Department was held on 4th January,

1995 in which it was decided, inter alia, that although the last

date for exercising the switch-over option had expired in 1991,

representations were being received to extend the date.

Therefore, looking into the difficulty faced by the employees, it

was decided that the facility of exercising the switch-over option

would be available to the existing employees up to six months

prior to the date of retirement, that is, the employee could opt for

Pension and GPF Regulations while in service. According to the

respondents, by virtue of this decision, such of the employees

who are still in service can yet accept the switch-over option.

But according to the RSEB, the decision taken on 4th January,

Civil Appeal Nos. 7483 of 2014 etc.etc. Page 15 of 47 (Arising out of SLP (C) No.29639 of 2012 etc.etc.)

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1995 stands obliterated by the sixth notice given on 8 th May,

1995, the seventh notice given on 22nd August, 1995 and the

eighth notice given on 4th February, 1997 read with the final

decision taken on 12th March, 1999 closing the receipt of switch-

over options.

23. At this stage, it may be mentioned that the Rajasthan

Legislature enacted the Rajasthan Power Sector Reforms Act,

1999 which resulted in the Rajasthan Power Sector Reforms

Transfer Scheme 2000, which in turn resulted in the unbundling

of the RSEB into five companies. The five companies are owned

and controlled by the Government of Rajasthan and their

employees have been absorbed on the same terms and

conditions governing them while they were employees of the

RSEB. The unbundling of the RSEB does not have any

consequence so far as the decision in these appeals is concerned

but this fact is mentioned only to complete the record. For

convenience, the expression RSEB refers to both the erstwhile

RSEB as well as the entities post the unbundling of the RSEB.

Proceedings in the High Court

24. Consequent to the decision communicated on 12th March,

Civil Appeal Nos. 7483 of 2014 etc.etc. Page 16 of 47 (Arising out of SLP (C) No.29639 of 2012 etc.etc.)

Page 17

1999 whereby the option of switching over from the CPF Scheme

to the Pension and GPF Regulations was not extended, a large

number of aggrieved employees of the RSEB filed Writ Petitions

in the Rajasthan High Court. In these Writ Petitions the challenge

was to the closure of the switch-over option. The writ petitioners

also claimed a declaration of being entitled to all the pension

benefits available under the Pension and GPF Regulations upon

their retirement. These Writ Petitions came to be disposed of by

a learned Single Judge of the Rajasthan High Court by an order

dated 28th February, 2008 with a direction that the writ

petitioners may submit a representation to the RSEB voicing their

grievances and the RSEB should decide the representation within

a month.

25. The order dated 28th February, 2008 was followed in several

other Writ Petitions filed by aggrieved employees and they made

as many as 30 representations to the RSEB pursuant to the

various orders passed by the Rajasthan High Court in over 30 writ

petitions. By an extremely detailed order dated 26th June, 2008

the RSEB disposed of these representations in which the issues

raised were clearly formulated and findings given on each of the

Civil Appeal Nos. 7483 of 2014 etc.etc. Page 17 of 47 (Arising out of SLP (C) No.29639 of 2012 etc.etc.)

Page 18

issues. A little later, we shall refer to two of the issues relevant

for our purposes and the finding thereon.

26. Not being satisfied with the order dated 26th June, 2008 a

large number of writ petitions came to be filed in the Rajasthan

High Court challenging that order and praying for quashing and

setting aside the decision dated 12th March, 1999. It was further

prayed that the writ petitioners (who are respondents before us)

be held entitled to the benefits in accordance with the Pension

and GPF Regulations. This batch of Writ Petitions was heard by a

learned Single Judge and by his elaborate judgment and order

dated 21st October, 2011 the writ petitions were allowed and the

communication dated 26th June, 2008 as well as the decision

dated 12th March, 1999 were quashed and set aside. It was made

clear that all the existing employees of the RSEB would be

covered by the Pension and GPF Regulations including the writ

petitioners and the legal representatives of the deceased

employees interested in exercising the switch-over option from

the CPF to the Pension and GPF Regulations. It was further

directed that there was no need for any other writ petition to be

filed by any existing employee and that the benefit of the order

Civil Appeal Nos. 7483 of 2014 etc.etc. Page 18 of 47 (Arising out of SLP (C) No.29639 of 2012 etc.etc.)

Page 19

dated 21st October, 2011 would inure to the benefit of all similarly

situate employees.

27. Being aggrieved by the decision of the learned Single Judge

the RSEB preferred writ appeals before the Division Bench of the

High Court. By a judgment and order dated 17th May, 2012

(impugned) the High Court dismissed the appeals relying entirely

on the elaborate order passed by the learned Single Judge. It is

under these circumstances that the present batch of appeals

preferred by the RSEB is before us. For convenience, we have

taken the facts from Civil Appeal arising out of SLP (C) No.29639

of 2012.

Submissions

28. For the sake of convenience a summary of the various

notices issued by the RSEB are put down in the form of a chart:

No. N o t i c e d a t e

Applica- bility

Validity Special reason

Publicit y

Remark Options received

1st 0 6 .

All employee s

90 days - Wide publicity through

On non receipt of option,

2741

Civil Appeal Nos. 7483 of 2014 etc.etc. Page 19 of 47 (Arising out of SLP (C) No.29639 of 2012 etc.etc.)

Page 20

0 1 . 1 9 8 9

pasting on the notice board

employe e deemed to have retained CPF benefits

2nd 0 4 . 0 4 . 1 9 8 9

- do - 45 days Non- publication of Hindi version

No specific mention

- 31217

3rd 1 9. 0 5. 1 9 9 0

All employee s including daily rated and work charged employee s

30.06.1990 References received from various corners requesting for an extension

- do - On non receipt of option, employe e deemed to have retained CPF benefits

3972

4th 1 7 . 0 9 . 1 9 9 1

All employee s

90 days - do - - do - - do - 2741

5th 2 7 . 0 1 . 1 9 9

Work charged, retired and deceased

15.03.1993 - - do - - do - 2749

Civil Appeal Nos. 7483 of 2014 etc.etc. Page 20 of 47 (Arising out of SLP (C) No.29639 of 2012 etc.etc.)

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3 6th 0

8 . 0 5 . 1 9 9 5

All employee s

31.03.1996 - - do - - do - 4460

7th 2 2 . 0 8 . 1 9 9 5

Retired employee s

30.11.1995 Representati- ons received from retired employees

Pasting on the notice board

- -

8th 0 4 . 0 2 . 1 9 9 7

All employee s

30.06.1997 - - On non receipt of option, employee deemed to have retained CPF benefits

5076

29. Two things are quite clear from the narration of facts and the

chart. Firstly, that several opportunities were given to the

employees of the RSEB (and for prolonged periods) to switch over

from the CPF Scheme to the Pension and GPF Regulations. It is

stated in the rejoinder affidavit filed by the RSEB that in response

to the various notices, out of about 50,000 of its employees, as Civil Appeal Nos. 7483 of 2014 etc.etc. Page 21 of 47 (Arising out of SLP (C) No.29639 of 2012 etc.etc.)

Page 22

many as about 46,000 had exercised their option at different

points of time to switch over from the CPF Scheme to the Pension

and GPF Regulations. Therefore, if some of the employees did

not make the switch-over, it may be for reasons personal to

them. Secondly,

the switch-over option was given to various categories of

employees – regular employees, daily rated employees, work

charge employees, retired employees and legal representatives

of deceased employees. Within these categories were included

senior and junior officers, technical and non-technical cadre. In

other words, both high ranked and lower ranked staff were

included for the purposes of the switch-over option.

30. Given this factual background, it is prima facie difficult to

accept the contention of the respondents that they (about 700 of

them and another 3000+ employees that they represent) were

not aware of the Pension and GPF Regulations and therefore, they

were unable to exercise their option to switch over before its

closure by the decision dated 12th March, 1999.

31. To repel this prima facie view, some of the reasons given by

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the respondents for not exercising the switch-over option are as

follows and they form the backbone of their submissions:

(1) They were not aware of the various notices issued from

time to time since wide publicity was not given to all the

notices. By way of an example, it has been mentioned that

in response to a query under the Right to Information Act,

2005 it was admitted by the RSEB that the notice dated 4th

February, 1997 was not received or circulated in Suratgarh.

(2) Many of the respondents were posted in remote areas

of Rajasthan such as Jaisalmer, Barmer, Sirohi, Banswara

etc. There were no communication facilities in these remote

places and therefore they could not become aware of the

notices issued by the RSEB from time to time.

(3) Many of the respondents belong to junior/technical

cadres like peons, vehicle drivers, helpers, pump operators,

electricians, crane operators, chowkidars etc. Given their

status, it is difficult to assume that they were aware of the

switch-over option.

(4) The option letters required the respondents to

specifically indicate whether they opt for continuing to

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remain with the CPF Scheme or they opt to switch to the

Pension and GPF Regulations. This necessarily means that

each employee of the RSEB was required to be individually

informed of the switch-over option. Admittedly, individual

notices were not sent to all the employees of the RSEB.

Issue of awareness

32. As far as the awareness of the respondents of the switch-

over option is concerned, we have already mentioned that out of

about 50,000 employees of the RSEB about 46,000 of them had

opted to switch over from the CPF Scheme to the Pension and

GPF Regulations. In other words, less than 10% of the employees

did not opt to make a switch-over. These 10% employees were

working with the RSEB at the relevant time and it is generally

unlikely that they would have been unaware of the sea change

for their monetary benefit in their terms of service with the RSEB.

We can appreciate that retired employees of the RSEB who may

have shifted out of the State may possibly be unaware of the

availability of the switch-over option (although that is also

unlikely over a prolonged period of 8 years) but it is difficult to

appreciate how a working employee of the RSEB who is in day to

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day touch with the organization would be unaware of the switch-

over option for such a long period.

33. As regards the contention of the respondents that their lack

of awareness was due to the absence of adequate publicity being

given to the switch-over option, we need only mention that the

chart given above indicates that even though the notice dated

4th April, 1989 did not mention anything about giving wide

publicity to the switch-over option, yet more than 31,000

employees gave their option pursuant to that notice. Even

thereafter, between 2,000 and 5,000+ employees exercised their

option whenever the notice for exercising the switch-over option

was issued. This clearly suggests to us that wide and adequate

publicity was given to the various notices issued by the RBEB

from time to time, even if it was not specifically mentioned in

each individual notice, otherwise there could not have been such

an overwhelming response to every notice resulting in as many

as about 46,000 employees out of 50,000 employees of the RSEB

opting to switch-over from the CPF Scheme to the Pension and

GPF Regulations.

34. To rebut the presumption of their awareness, it is submitted

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by the respondents that all of them were posted in remote areas

of Rajasthan such as Jaisalmer, Barmer, Sirohi, Banswara etc. and

it is for this reason that they were not aware of the switch-over

option. There is nothing to support this claim by the respondents

except a bald statement. Even otherwise, the respondents were

admittedly in transferable jobs and it is unlikely that each one of

them continued to remain in one or the other remote area of

Rajasthan for as long as 8 years from 1989 to 1997. On the

contrary, it was not denied during the hearing of these appeals

that the respondents had been transferred at least once during

the period of 8 years when the switch-over option was available.

Where they were posted from time to time – whether in a remote

area or in a not so remote area – has not been disclosed. It is

difficult to accept that the respondents were always posted in

remote areas of Rajasthan We, therefore, cannot accept such a

bald statement by the respondents.

35. That apart, from the rejoinder affidavit filed by the RSEB it is

clear that quite a few of the respondents were posted in Jaisalmer

and Barmer which are certainly not remote parts of Rajasthan.

As regards Sirohi and Banswara, it has been stated in the

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rejoinder affidavit filed by the RSEB that as many as 1476

employees from these (and other remote places) had exercised

their option to switch-over from the CPF Scheme to the Pension

and GPF Regulations. Given these facts, it is doubtful that the

respondents were blissfully unaware of the existence of the

Pension and GPF Regulations.

36. It was submitted by the respondents that apart from the

notice dated 6th January, 1989 none of the other notices were

given wide publicity and in fact the subsequent notices do not

even mention that wide publicity was required to be given. It is

for this reason that the respondents, located in remote areas of

Rajasthan were unaware of the Pension and GPF Regulations. To

support their contention that wide publicity was not given to

subsequent notices, the respondents relied upon the response

dated 26th November, 2007 to a query raised under the Right to

Information Act, 2005 which states that the notice dated 4th

February, 1997 was not received in the office of the Executive

Engineer (Prot.) Ratangarh nor was it dispatched to the Assistant

Engineer (Prot.) Suratgarh.

37. Reliance was also placed upon a similar letter dated 5th

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December, 2007 which is again with reference to the notice

dated 4th February, 1997 and its receipt in Ratangarh and

dispatch to Suratgarh.

38. Apart from the fact that the reference pertains to only one

notice, it cannot be said that this would conclusively demonstrate

or conclusively suggest that the notice dated 4th February, 1997

was not received in other parts of Rajasthan or other places close

to Suratgarh. It has been stated by the RSEB in their rejoinder

affidavit that so far as the office in Suratgarh is concerned, there

were 4 employees who had joined service in Suratgarh post-1988

and who were automatically entitled to the benefit of the Pension

and GPF Regulations and 2 persons who were similarly placed as

the respondents had in fact exercised their switch-over option.

Therefore, it is not that the employees in Suratgarh were

completely unaware of the Pension and GPF Regulations.

39. It also cannot be assumed on the basis of the above that the

employees in Suratgarh who were allegedly unaware of the

Pension and GPF Regulations through the notice dated 4th

February, 1997 were also not aware of the half a dozen previous

notices. Additionally, these allegedly unaware persons have not

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been identified by the respondents and the submission made in

this regard is quite vague.

40. We have mentioned above that the reason why some

employees did not switch over from the CPF Scheme to the

Pension and GPF Regulations is perhaps because of reasons

personal to them. But at the same time, it must be pointed out

that the respondents have virtually let the cat out of the bag by

an averment made by them in their writ petition filed before the

High Court. The background to the averment is given below.

41. The RSEB passed an order on 23rd August, 1997 in which it

was stated that the Government of Rajasthan had recently

promulgated the Rajasthan Civil Services (Pension) Rules, 1996

as amended from time to time. In view of this, the RSEB decided

that the pension, family pension and commutation of pension in

respect of its employees would be computed under the specific

provisions of the Rajasthan Civil Services (Pension) Rules, 1996.

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

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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 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

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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.

44. Another facet of this argument (which was feebly urged) is

to found in Issue No.5 dealt with by the RSEB in its order dated

26th June, 2008 in the following words:

“ Issue raised 5. That the erstwhile RSEB adopted R.C.S. (Pension) Rules, 1996 of the Govt. of Rajasthan vide its order no. RSEB/F & R/F.3 (10)/D-42 dated 23.8.1997 but did not provide any opportunity to its employees for exercising option under RSEB Employees Pension Regulation, 1988.

Findings Issue 5: That the erstwhile RSEB through RSEB Regulations – 1988 issued separate pension rules for their employees. But in the year 1996, Finance Department, GoR issued new Pension Rules in which computation of pension, family pension, and commutation as well as amount of pensions etc. was amended or revised. RSEB vide order No.42/23.8.1997 opted only computation for the amount of pension, family pension and commutation, other provisions of RSEB Pension Regulations, 1988 remaining unchanged. It has no relation to the option. Thus the applicants were not entitled for any re-option for pension even after the order dt. 23.8.1997. There were already given 8 opportunities to switch over to pension but they retained CPF benefits only.”

45. We are in agreement with the view expressed by the RSEB

that any and every change in the computation of pension or in

the Pension Regulations (either of the RSEB or the Rajasthan

Government) does not warrant a fresh option being offered to the

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respondents.

46. With regard to the submission that the respondents belong

to the junior or technical cadre consisting of low paid staff such

as peons, vehicle drivers, helpers etc. we need only say that, as

pointed out in the rejoinder affidavit of the RSEB, about 100 of

the respondents are senior level officers holding posts of Head of

Office and Head of Department with the RSEB. As per the Pension

and GPF Regulations, they receive the option forms from the

employees, countersign them and then forward them to the

Controller of Accounts. It is extremely difficult to accept their

contention that they were unaware of the switch-over option.

47. As regards the junior technical and non-technical staff, one

can assume that the RSEB has a pyramidal structure of staff, with

the greater strength of staff being junior technical and non-

technical. If that is presumably so, then of the about 46,000

employees who have exercised their option, the majority would

consist of junior technical and non-technical staff. Under the

circumstances, it is difficult to believe that while such an

extremely large number of employees were aware of the switch-

over option, despite their lower hierarchical status, the remaining

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junior technical and non-technical were unaware of the

availability of the switch-over option, and that too over a

prolonged period of 8 years.

48. Interestingly, the issues framed in the order dated 26th June,

2008 passed by the RSEB (impugned in the High Court) does not

include the alleged lack of awareness of the availability of the

switch-over option on the part of the employees who made the

30 representations. This argument seems to have been raised for

the first time in the writ petitions filed by the respondents. But

that is not really material for a decision in these appeals.

49. Ultimately the issue boils down to the overall assessment of

the awareness level of the employees of the RSEB based on the

available data. Based on the facts presented before us, on a

composite consideration of the facts and taking a pragmatic view

of the situation, a reasonable and legitimate inference can be

drawn that the respondents were aware of the notices issued for

the exercise of the switch-over option but they chose not to

exercise that option either for personal reasons or perhaps

because it did not suit them. The position changed in the second

half of 1997, by which time it was too late for them to do a

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rethink.

50. One of the contentions urged by the respondents as writ

petitioners in the High Court was that each employee should

have been individually served with each notice inviting the

switch-over option. That contention was accepted by the High

Court by relying upon Dakshin Haryana Bijli Vitran Nigam

and Others v. Bachan Singh1 but was not directly canvassed

before us. In any event the decision relied upon by the High

Court was considered and distinguished in PEPSU Road

Transport Corporation, Patiala v. Mangal Singh and

Others.2

51. The contention in this regard is a bit collateral, and it is this:

the switch-over option form was required to be filled up by each

employee clearly indicating the option exercised – either to

continue with the CPF Scheme or to switch to the Pension and

GPF Regulations. This could be done only if the option form was

1

(2009) 14 SCC 793

2

(2011) 11 SCC 702

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made available to each employee.

52. In Dakshin Haryana Bijli Vitran Nigam the instructions

relating to the exercise of the switch-over option specifically

mentioned that “These instructions may please be got noted

from all the employees and acknowledge the receipt of the

letter.” The appellants therein were unable to show that the

instructions were actually got noted in writing by the respondent.

It is under these circumstances that it was inferred that the

respondent had no knowledge about the options called by the

appellants. Consequently, the denial of pension benefits to the

respondent was held bad.

53. In PEPSU RTC v. Mangal Singh the decision rendered in

Dakshin Haryana Bijli Vitran Nigam was distinguished on

facts since in the PEPSU appeal there was no condition of noting

from the employees or serving individual notices in the Pension

Scheme or Regulations. This Court went on to say:

“Furthermore, when notice or knowledge of the Pension Scheme can be reasonably inferred or gathered from the conduct of the respondents in their ordinary course of business and from surrounding circumstances, then, it will constitute a sufficient notice in the eye of the law.”

54. The fact situation in the present appeals is somewhat

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similar. In this context, we may infer that under such

circumstances, it was equally the responsibility of the

respondents to collect the option forms from the concerned

authority, fill them up and submit them to the competent

authority. It is too much to expect that even though it was not

necessary for each individual employee to be served with each

notice, yet there was a duty cast on the RSEB to ensure that each

employee is furnished a copy of the option form. If such a

contention is accepted, it will amount to circuitously accepting

that, though the employees need not individually be served the

notices, yet they would have to be individually served with a

copy of the option form.

55. The second substantive contention urged by learned

counsel for the respondents was that the Whole-Time Members of

the RSEB had taken a decision on 4th January, 1995 to the

following effect:

“It was brought to notice that the last date for giving option for Pension Scheme by the employees under CPF scheme had expired in 1991 and many representations were being received to extend this date. Looking to the difficulty of the employees, it was decided that the facility of opting for Pension Scheme will also be available upto 6 months before retirement to the serving employees only i.e., the employee can opt for GPF Pension Scheme while in service”.

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56. This decision was communicated by a letter dated 2nd

February, 1995 to all concerned and according to the

respondents they were now given an option to switch from the

CPF Scheme to the Pension and GPF Regulations at any time upto

six months prior to their retirement from service. Consequently, it

was submitted that the closure of the switch-over option by the

decision dated 12th March, 1999 was not justified.

57. This contention is also liable for rejection. Subsequent to

the decision taken by the Whole-Time Members on 4th January,

1995 the RBEB issued a notice dated 8th May, 1995 which

effectively superseded the decision taken on 4th January, 1995.

In terms of the notice dated 8th May, 1995 the Chairman of the

RSEB in consultation with other Whole-Time Members extended

the period of exercising the switch-over option till 31st March,

1996, that is, for a period of more than 320 days. Consequently,

the decision taken on 4th January, 1995 was given a go-bye or

overridden and adequate time was given by the notice dated 8 th

May, 1995 to the employees of the RSEB to make a switch-over,

in modification of the decision dated 4th January, 1995.

58. To further benefit the employees of the RSEB (and

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effectively confirm the demise of the decision dated 4th January,

1995) another notice was issued on 4th February, 1997 by which

the Chairman of the RSEB in consultation with other Whole-Time

Members extended the period of exercise of the switch-over

option till 30th June, 1997. In view of these facts which

demonstrate that the decision dated 4th January 1995 was no

longer extant, the respondents cannot bank upon that decision in

support of their contention that they can exercise the switch-over

option upto six months prior to the date of retirement. The final

nail in the coffin (if it was at all necessary) came through the

decision dated 12th March, 1999.

59. This issue was also considered by the RSEB in its order

dated 26th June, 2008 in the following words, and we endorse that

view:

“ Issue raised

3. That all doubts and worries for submitting option for pension by the employees came to rest in the year 1995 when the WTMS and HODs of the erstwhile RSEB took a decision that the facility of opting for pension scheme will also be available upto 6 months before retirement of the serving employees only i.e. the employee can opt GPF Pension Scheme while in service. The employee will himself be allowed to give option and not his nominee after death and reliance has been placed on circular/letter no. RSEB/S/1/F.4(122)/D-155 dated 2-2-1995.

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Findings

Issue 3: That it is true that in a meeting of WTM, such decision was taken but it was simply minutes of discussions and was not a decision of competent Board of RSEB. In pursuance of minutes of WTM meeting it was never placed before Board for approval and no order/amendment was ever issued of the nature of WTM minutes. Therefore, it has never been implemented. The applicants have no right to raise it after lapse of long period of 13 years. However, even after this decision, general decision was taken by Board of RSEB to further give opportunity mentioned hereinunder to opt for pension and GPF, thus, the WTM decision was superseded. 1. No. RSEB/F&R/F.(Pen)/D.35 dated 8.5.1995 2. No. RSEB/F&R/F.(Pen)/D.61 dated 22.8.1995 3. No. RSEB/F&R/F.(Pen)/D.9 dated 4.2.1997 Thus, the decision of WTM required approval of competent Board on such policy matters. Further Management vide letter/notice/order dated March 12, 1999 clarified that the date of option has been closed and no requests will not be considered. Therefore, the applicants cannot now take the excuse of WTM decision of the year 1995 after lapse of a long period of 13 years as sufficient opportunities have already been given.”

60. The final question that arises for consideration relates to the

right, if any, of the respondents to exercise the switch-over

option at any point of time or to have it kept alive by the RSEB

for an indefinite period or at least till the superannuation of the

respondents.

61. In this regard, the definition of ‘option’ occurring in

Regulation 2(o) of the Employees General Provident Fund

Regulations, 1988 is important. An ‘option’ requires a written

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consent of the existing employee to either continue with the CPF

Scheme or to opt for the GPF Scheme within a period of 90 days

from the commencement of the GPF Regulations. The period of

90 days commences with the GPF Regulations coming into force

with effect from 28th November, 1988. The definition also

provides that an employee who does not exercise the option

within the period of 90 days shall be deemed to have exercised

his option in favour of the existing CPF Scheme. It is also

provided that it will be “the personal responsibility of the

concerned employee/officer to ensure that his option reaches

timely in the office of the COA (P&F), RSEB, Jaipur.” In other

words, not only is a time limit statutorily prescribed by the GPF

Regulations for exercising the option, but a responsibility has

been cast on the employee to ensure that his option reaches the

concerned authorities within the time prescribed.

62. Regulation 2(o) of the Employees General Provident Fund

Regulations, 1988 reads as follows:-

“Option” means a written consent of the existing employee to become either member of the Employees General Provident Fund Scheme, 1988 or to continue as member of the existing CPF/FPF scheme covered under the EPF Act, 1952 within a period of 90 days from the date of commencement of Employees General Provident Fund Scheme, 1988 by the RSEB. Any existing employee who

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does not exercise the option within specified period of 90 days shall be deemed to have exercised option in favour of the existing CPF/FPF Schemes covered under the provisions of Employees Provident Fund Act, 1952. The option once exercised or deemed to have been exercised shall be considered as final and no representation in this respect shall be considered valid for any revision. It will be the personal responsibility of the concerned employee/officer to ensure that his option reaches timely in the office of the COA (P &F), RSEB, Jaipur. Provided that a Board employee who is on that day out of India/within India on leave or deputation or foreign service or under suspension, may exercise option within one month from the date he takes over the charge of the post, in case he does not get any intimation for exercising option, within one month from the date he is required to exercise it.”

63. Notwithstanding the aforesaid Regulation providing for a

time limit of 90 days for exercising the switch-over option, the

appellant administratively continued to give one opportunity

after another to the employees of the RSEB to exercise their

switch-over option. This continued for a period of 8 years and

during that period if an employee chose not to exercise his

option, it was deemed that he would continue to avail the

benefits under the CPF Scheme. Consequently, if this had any

adverse financial impact on the employee in the long run (and

realized by him in 1997-98), he had no one else but himself to

blame.

64. As regards the Pension Scheme, the admitted position is

that an employee could not continue with the CPF Scheme and Civil Appeal Nos. 7483 of 2014 etc.etc. Page 41 of 47 (Arising out of SLP (C) No.29639 of 2012 etc.etc.)

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also avail the benefits of the Pension Scheme under the

Employees Pension Regulations, 1988. However, an employee

could avail of both the GPF Scheme as well as the Pension

Scheme.

65. The Employees Pension Regulations, 1988 also defines

‘option’ in Regulation 3(l) thereof. ‘Option’ means a written

consent of the existing employee for either availing the pension

and gratuity benefits or to continue to be a member of the CPF

Scheme. In other words, a switch-over option was made

available to the employee under the Pension Regulations as well.

66. Regulation 3(l) of the Employees Pension Regulation, 1988

reads as follows:

“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.”

67. When the Pension Regulations and the GPF Regulations are

read together, the necessary conclusion is that an employee

must give his option for either continuing to be a member of the Civil Appeal Nos. 7483 of 2014 etc.etc. Page 42 of 47 (Arising out of SLP (C) No.29639 of 2012 etc.etc.)

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CPF Scheme or to switch over to the Pension and GPF

Regulations. This option has to be exercised within a period of 90

days from the cut-off date, that is, 28th November, 1988. But the

RSEB, in its wisdom, chose to extend the time for exercising the

switch-over option over a period of 8 years by giving several

opportunities to the employees through its notices.

68. The right of an employee to switch over was, therefore,

limited in time by the Pension and GPF Regulations. However,

administrative orders issued by the RSEB from time to time

extended the period for exercising the option. No employee had

any inherent right to either demand an extension of the period

for exercising the switch-over option or claim a right to exercise

the switch-over option at any time prior to his retirement, and no

such right has been shown to us.

69. But, learned counsel for the respondents finally submitted

that pension is not a charity or a bounty and an employee is

entitled to earn his pension. There can be no doubt about this

proposition but when two schemes are available to an employee,

one being the CPF Scheme and the other being the Pension

Scheme, it is for the employee to choose the scheme that he

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feels more comfortable with and appropriate for his purposes. No

employee can switch over back and forth from one scheme to

another as per his convenience. Once an employee has chosen

to be a part of a particular scheme, he continues to remain a

member of that scheme unless an option to switch over to

another scheme is given to him.

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

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contentions urged by the respondents and consequently, the

appeals of the RSEB deserve to be allowed.

Civil Appeal No.7503/2014 (Arising out of SLP (C) No.30577 of 2012 (from Civil Special Appeal (Writ) No.248 of 2012 in CWP No.13401 of 2008) 72. In this appeal, it is submitted by learned counsel that the

facts are slightly different from the rest of the appeals. It was

submitted that the writ petitioner had submitted his option on

20th February, 1996 and that was forwarded to the concerned

authorities on 6th March, 1996.

73. By a letter dated 10th April, 1996, the writ petitioner was

informed that since his option was conditional, it could not be

accepted. The writ petitioner responded to this by making a

representation dated 20th April, 1996 to the effect that there was

no condition attached to the exercise of option. Nevertheless, he

clarified that the alleged condition may be treated as deleted and

his option form may be considered. However, it appears that the

option form of the writ petitioner was not considered by the

concerned authorities and that led him to file a writ petition in

the Rajasthan High Court.

Civil Appeal No.7570/2014 (Arising out of SLP (C) No. 9990 of 2013 (from Civil Special Appeal (Writ) No. 237 Civil Appeal Nos. 7483 of 2014 etc.etc. Page 45 of 47 (Arising out of SLP (C) No.29639 of 2012 etc.etc.)

Page 46

of 2012 in CWP No. 1079 of 2008) 74. Learned counsel submitted that the writ petitioner gave his switch-over option well in time and in fact deductions from his salary had been made under the GPF Scheme for several months thereafter. 75. It appears that the reason for not accepting the option given

by the writ petitioner was that he had taken a housing loan under

the CPF Scheme and was requested by a letter dated 18th March,

2000 to return the amount so that his switch-over option could be

considered. Since he failed to do so, his option was not accepted.

The writ petitioner denied receipt of the letter dated 18th March,

2000 and reiterated that deductions had been made from his

salary under the GPF Scheme.

Civil Appeal No.7564/2014 (Arising out of SLP (C) No. 9983 of 2013 (from Civil Special Appeal (Writ) No.257 of 2012 in CWP No. 12230 of 2009) 76. It is submitted that the writ petitioner exercised his option in

1996 and that was forwarded to the competent authority by his

controlling officer (Executive Engineer at Bhilwara) by a letter

dated 30th March, 1996. Though the option form was received well

within time, it was not accepted.

77. The entire facts of these cases are not before us nor has the

learned Single Judge of the High Court specifically discussed these Civil Appeal Nos. 7483 of 2014 etc.etc. Page 46 of 47 (Arising out of SLP (C) No.29639 of 2012 etc.etc.)

Page 47

cases.

78. Consequently, we are not in a position to give any decision

in these cases in view of the absence of full facts. We are of the

view that the more appropriate course of action to adopt in these

matters would be to remand them to a Single Judge of the High

Court for fresh consideration on merits after hearing the writ

petitioners and the RSEB.

79. No other distinct or partially dissimilar case was pointed out

to us by any learned counsel although the learned Single Judge

has made a reference to a few of them.

Conclusion 80. All the appeals are allowed but with no order as to costs.

Insofar as Civil Appeals arising out of SLP (C) No.30577 of 2012,

SLP (C) No.9990 of 2013 and SLP (C) No.9983 of 2013 are

concerned they are remitted to a Single Judge of the High Court

for a fresh consideration on merits.

..……………………..J (Madan B.

Lokur)

.………………………J

New Delhi; (Kurian Joseph) August 7, 2014 Civil Appeal Nos. 7483 of 2014 etc.etc. Page 47 of 47 (Arising out of SLP (C) No.29639 of 2012 etc.etc.)

RAJ.RAJYA VIDYUT V NIGAM LTD. Vs DWARKA PRASAD KOOLWAL .

RAJ.RAJYA VIDYUT V NIGAM LTD. Vs DWARKA PRASAD KOOLWAL .