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                         REPORTABLE   

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   7160  OF 2013  (Arising out of SLP (C) No. 7781 of 2011)

Rajasthan Agriculture University, Bikaner .....Appellant

        Versus

State of Rajasthan & Ors.         …..Respondents

J U D G M E N T

ANIL R. DAVE, J.

1. Leave granted.

2. Being  aggrieved  by  the  judgment  delivered  in  D.B.  Civil  Special  

Appeal (Writ) No. 32 of 2008 in S.B. Civil Writ Petition No. 1738 of  

2003 dated 20th January, 2001, by the High Court of Rajasthan,  the  

Rajasthan Agriculture University has filed this appeal.

3. The facts giving rise to the present appeal, in a nutshell, are as under :-

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Respondent  No.  2  was  in  employment  of  the  appellant-University.  

Prior  to  his  employment  under  the  appellant-University,  respondent  

No. 2 had worked with the State of Rajasthan in Veterinary  & Animal  

Husbandry  Department.  After  taking  voluntary  retirement  from  his  

State  service,  he  had  joined  the  erstwhile  Mohanlal  Sukhadia  

University,  Udaipur.  Subsequently,  the  said  university  had  been  

bifurcated  and  the  appellant-University  was  formed.  Service  of  

respondent No. 2 had been taken over by the appellant-University.

4. The question which is to be decided is whether respondent No. 2 is  

entitled  to  pension  as  claimed  by  him  or  he  is  eligible  to  get  his  

retirement benefits under Contributory Provident Funds Scheme (for  

short “the C.P.F. Scheme”).

5. Upon  taking  voluntary  retirement  from  the  State  of  Rajasthan,  

respondent  No.  2  is  getting pension from the State  of  Rajasthan in  

respect of the services rendered by him to the State of Rajasthan. After  

being  in  employment  of  the  appellant-University,  along  with  entire  

staff of the appellant-University, respondent No. 2 was also asked to  

give his option whether he was inclined to opt for a Pension Scheme or  

for  a  C.P.F.  Scheme.  The  options  were  invited  by  the  appellant-

University  under  Notification  No.Pension/RAJAU/C/91/F-75/3668-  

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768 dated 17th August, 1991. It was stated in the said Notification  that  

the employees who were in service of the appellant-University as on  

1st January, 1990, shall have to exercise their option in writing, either  

for the Pension Scheme or for continuation under the existing C.P.F.  

Scheme  within  3  months  from the  date  of  the  Notification.  It  was  

further provided in the Notification that the employees, who would not  

exercise the option within 3 months from the date of the Notification,  

would be deemed to have opted for the Pension Scheme.

6. Unfortunately, respondent No. 2 could not intimate his option to the  

appellant-University within the period prescribed but by his letter dated  

3rd January, 1992, he had opted for the C.P.F. Scheme. He specifically  

stated in his communication dated 3rd January, 1992 that he did not opt  

for the Pension Scheme. Perhaps as a special case, the option exercised  

by  him  had  been  accepted  by  the  appellant-University  and  the  

acceptance was kept on record after  the authorized signatory of  the  

appellant-University  had  accepted  the  option.  Thus,  his  option  for  

continuation  under  the  C.P.F.  Scheme  had  been  accepted  by  the  

appellant-University.

7. On 30th June, 1997, respondent No. 2 retired from service and as per  

the record of the University, as he had opted for the C.P.F. Scheme, he  

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was paid all his retirement benefits payable to him under the C.P.F.  

Scheme.  

8. Respondent  No.  2,  thereafter  made  a  grievance  that  as  he  had  not  

exercised his option within the prescribed period of 3 months from the  

date of the Notification dated 17th August, 1991, as per the conditions  

incorporated in the said Notification, he should have been deemed to  

have opted for the Pension Scheme and therefore, he should be paid  

pension as per the Pension Scheme.

9. The request made by respondent No. 2 had not been accepted because  

the  appellant-University  had  already  accepted  the  option  of  C.P.F.  

Scheme exercised by him.  

10. In the circumstances, after about 6 years, respondent No. 2 filed S.B.  

Civil  Writ  Petition No. 1738 of 2003 praying for a direction to the  

effect  that  the appellant-University  should  pay pension to  him.  The  

High Court allowed the petition by giving a direction to the appellant-

University to consider the case of respondent No. 2. Being aggrieved  

by the aforestated  direction,  the appellant-University  had filed D.B.  

Civil  Special  Appeal  (W)  No.  32  of  2008  and  at  the  same  time  a  

decision  was  taken  by  the  appellant-University  not  to  change  its  

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decision   with  regard  to   giving  benefit  of  the  C.P.F.  Scheme  to  

respondent No. 2.

11. By virtue of the impugned judgment delivered by the High Court, the  

appellant-University  was  directed  to  give  pension  to  respondent  

No. 2. Thus, the Division Bench of the High Court has directed the  

appellant-University to change the manner in which retirement benefits  

should be calculated and give pension to respondent No. 2 as if he had  

opted for the Pension Scheme.  

12. The  appellant-University  has  been  aggrieved  by  the  aforestated  

judgment and therefore, this appeal has been filed.

13. The  learned  counsel  appearing  for  the  appellant-University  had  

submitted that having once opted for the C.P.F. Scheme under letter  

dated  3rd January,  1992  and  when  the  said  request  made  by  the  

respondent No. 2 had been accepted by the appellant-University and as  

the amount payable to respondent No. 2 had already paid to him, it was  

not open to respondent No. 2 to change his stand and ask for pension as  

if  he  had  opted  for  the  Pension  Scheme.  The  learned  counsel  had  

further submitted that the writ petition had been filed after more than 5  

years  and that  too,  after  accepting the total  amount  payable  to  him  

under the C.P.F. Scheme.  

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14. The learned counsel  had submitted that  respondent  No. 2 could not  

have been permitted to change his stand after his retirement. He had  

drawn our attention to the letter of option duly signed and filed before  

the  appellant-University  by  respondent  No.  2  and  the  said  option  

exercised by him, even though at a belated stage, had been accepted by  

the appellant-University. This was a favour done to respondent No. 2  

by the appellant-University.  

15. According to the learned counsel, it was not a case where no option  

was exercised by respondent No. 2. It is true that respondent No. 2 did  

not exercise his option within the period prescribed but his delay in  

exercising  option  had  been  impliedly  condoned  and  the  option  

exercised  by  respondent  No.  2  was  accepted  by  the  appellant-

University  and  therefore,  the  deeming  fiction  incorporated  in  the  

Notification would not be of any help to respondent No. 2, so as to  

treat him as if he had opted for the Pension Scheme by default.  

16. The learned counsel for the appellant-University had further submitted  

that the University has limited funds and if such changes in exercise of  

option  is  permitted,  the  appellant-University  would  be  in  great  

financial difficulties. He had also submitted that the High Court had  

become unduly lenient towards respondent No. 2. He had, therefore,  

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submitted that the appeal should be allowed and the direction given by  

the High Court with regard to payment of pension to respondent No. 2  

be quashed.

17. On the other hand, the learned counsel appearing for respondent No. 2  

had  vehemently  submitted  that  once  respondent  No.  2  had  not  

exercised his option within the period prescribed in the Notification  

dated 17th August,  1991, he ought to have been treated as if he had  

opted for the Pension Scheme as per the deeming fiction incorporated  

in the Notification. He had further submitted that immediately upon  

retirement,  respondent  No.  2  had  made  a  grievance  that  he  was  

wrongly  considered  to  have  opted  for  the  C.P.F.  Scheme  and  had  

written  several  letters  and therefore,  in  fact,  there  was  no delay  as  

alleged. The learned counsel had also tried to compare provisions with  

regard to payment of retirement benefits by other universities of the  

State of Rajasthan and had made an effort to persuade this Court to the  

effect that respondent No. 2 ought to have been given pension in view  

of the fact that similarly situated employees of other universities were  

also paid pension.  

18. We  have  heard  the  learned  counsel  and  also  have  considered  the  

relevant record forming part of the paper book.

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19. We are of  the view that  the High Court  ought not  to have given a  

direction to the appellant-University to give pension to respondent No.  

2 as if he had opted for the Pension Scheme.  

20. It is an admitted fact that respondent No. 2 had exercised his option not  

within the period prescribed  but little late.  Though late, respondent  

No. 2 had opted for joining or continuing with the C.P.F. Scheme.  

21. The appellant-University accepted the option exercised by respondent  

No.  2  and  therefore,  it  cannot  be  said  that  the  deeming  fiction  

incorporated in the Notification would help respondent No. 2. For sake  

of convenience, relevant extract of the Notification dated 17th August,  

1991, is reproduced hereinbelow :-

“….Thus  all  employees  who  were  in  service  on  1.1.1990 shall have to exercise their option in writing,  either for the pension scheme under these regulations or  for  continuance  under  the  existing  C.P.F.  Scheme,  within 3 months from the date of  notification of  this  provision and shall submit the same to the Comptroller,  Rajasthan  Agriculture  University,  Bikaner  in  the  prescribed form. The existing employees who do not  exercise option within the period specified under these  regulations  shall  be  deemed  to  have  opted  for  the  pension scheme.  Option once exercised shall  be final  and irrevocable…”

22. Though, respondent No. 2 did not exercise his option within the period  

prescribed under the aforestated Notification, when he had exercised  

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the option on 3rd January, 1992, for continuing  to be under the  C.P.F.  

Scheme and when the appellant-University had graciously accepted the  

option exercised by respondent No. 2, he would not get benefit under  

the deeming fiction incorporated in the Notification. It would be unfair  

to the University if the submission of respondent No. 2 is accepted. A  

special favour was done to respondent No. 2 by accepting his option  

even after the prescribed period was over.  Now, at this stage, after his  

retirement,  respondent  No.  2  wants  to  take  undue advantage  of  the  

favour  done  to  him  by  the  appellant  university,  which  cannot  be  

permitted.  Had respondent  No.  2 not  exercised his  option at  all,  he  

would have been surely treated to have accepted the Pension Scheme  

but as he had given his option late, which had been graciously accepted  

by the appellant-University,  it  cannot be said that  respondent No. 2  

should be treated to have accepted the Pension Scheme.  

23. All  averments  pertaining to  employees  of  other  universities  are  not  

relevant because each employer university would have its own scheme  

with regard to payment of retirement benefits to its employees.

24. We may add here that respondent No. 2 is a highly literate person and  

he must  have  known the consequences,  when he  had opted  for  the  

C.P.F. Scheme under his letter of option dated 3rd January, 1992. It was  

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his conscious effort to see that he continues with the C.P.F. Scheme  

and  the  said  effort  was  respected  by  the  appellant-University  by  

showing special favour, as his option was accepted even after the time  

prescribed in the Notification was over.

25. For the aforestated reasons, we are of the view that the High Court was  

in  error  by  giving  a  direction  to  the  appellant-University  that  

respondent No. 2 should be given pension as if he had opted for the  

Pension Scheme.  

26. The appeal stands allowed  with no order as to costs.  

………………................................J.            (ANIL R. DAVE)

….……...........................................J.            (DIPAK MISRA)

New Delhi August 27 , 2013

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