Union of
India & ANR. Vs. M.M. Sarkar [2009] INSC 1793 (8 December 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.8151 OF
2009 (Arising out of SLP [C] No.15031 of 2006] Union of India & Ors. ...
Appellants M. K. Sarkar ... Respondent
R.V.RAVEENDRAN,J.
1.
Leave granted.
2.
The respondent joined the Railway service on 10.2.1947. He was a
subscriber to Contributory Provident Fund Scheme. Railways introduced the
pension scheme vide Railway Board's letter dated 16.11.1957. Under the said
scheme, those who entered Railway service on or after 16.11.1957, were
automatically governed by the pension scheme. Those employees who were in
service as on 1.4.1957 and those who joined between 1.4.1957 and 16.11.1957
were given an option to switch over to pension scheme instead of continuing
under the Contributory Provident 2 Fund Scheme. Those who did not opt for the
pension scheme were given further opportunities to exercise options to switch
over to the pension scheme, whenever the pension scheme was liberalised or made
more beneficial, vide Notifications dated 17.9.1960, 26.10.1962, 17.1.1964,
3.3.1966, 13.9.1968, 15.7.1972, and 23.7.1974. The validity period of the
Eighth Option under Notification dated 23.7.1974, which was from 1.1.1973 to
22.1.1975, was extended from time to time upto 31.12.1978.
Under the
terms of the option, a retired railway employee who opted for the pension
scheme had to refund to the government's contributions to the provident fund.
3.
The respondent though aware of the introduction of the pension
scheme and the options given on eight occasions between the years 1957 to 1974,
consciously did not opt for the pension scheme and continued with the
Contributory Provident Fund Scheme. Ultimately the respondent while serving as
Controller of Stores, took voluntary retirement with effect from 15.10.1976. As
on the date of his retirement, the eighth option to shift to pension scheme,
was still open for exercise. But the respondent did not opt for the pension
scheme, but received the Contributory Provident Fund dues, on his retirement.
4.
More than 22 years after his retirement, and after receiving his
dues under the Provident Fund Scheme, the respondent made a representation
dated 8.10.1998, requesting that he may be extended the benefit of the pension
scheme. He stated that he was willing to refund the amount received under the
Provident Fund Scheme (by way of adjustment against the arrears of pension that
would become payable to him on acceptance of his request for switch over to the
pension scheme).
The said
request was not accepted. The respondent therefore approached the Central
Administrative Tribunal, in OA No.657 of 1999, seeking a direction to the
Railway Administration to permit him to exercise an option to switch over to
pension scheme. The Tribunal by order dated 11.2.2004 disposed of the
application by directing the appellants to take a decision on the
representation of the respondent by a reasoned order, making it clear that it
did not examine the claim on merits. In compliance with the said direction of
the Tribunal, the chairman, Railway Board, considered the representation and
passed a reasoned order dated 15.5.2004, rejecting the belated request of the
respondent for switching over to the pension scheme as being untenable. He also
distinguished the cases of other employees who were allegedly extended the
benefit of 4 exercising the option for belated switch overs, cited and relied
upon by the respondent. The relevant portion of the order is extracted below:
"Thus,
the cases referred to in the preceding para are not relevant to the case of
Shri Sarkar who had eight occasions to come over to the Pension Scheme during
his service period. By the time, VIII Pension option was thrown open, vide
Board's letter dated 23.7.1974 as extended from time to time upto 31.12.1978,
Shri Sarkar was in service till 15.10.1976. He resumed as COS/NF Railway on
11.6.1976. Board's instructions dated 30.6.1976 extending the last date for
exercising of option available under Board's letter dated 23.7.1974 to come
over to the pension scheme upto 31.12.1976 was circulated by NF Railway vide
their letter dated 17.7.1976. The said letter was circulated as per standard
mailing list including HODs. Shri Sarkar, being the HOD himself at the relevant
time, cannot deny having knowledge of the aforesaid Railway Board's
instructions.
5.
The respondent challenged the order dated 15.5.2004 by filing a
second application before the Tribunal. The following averments in the
application made by the respondent are relevant:
"...
those employees appointed earlier (to 1.4.1957), however continued to be on PF
system, but were periodically given the opportunity to opt for pension, on
inspection of merits of the scheme as and when new pension scheme was offered.
..... The applicant retired in 1976 and that in the meantime periodically for
certain range of time, the employees were asked to submit options.......... A
considerable number of employees including the applicant did not submit option
as the then scheme for pension introduced for the said limited period was not
considered beneficial, since upto VII amended option, the scheme would hardly
give any benefit to the said employees including the applicant. Later on, however,
came the VIII option, through which a break through order vide railway Board's
letter No. PC II (75) PB/3 dated 23.7.1974 was issued on the acceptance of the
recommendation of the 3rd Pay Commission. The validity of the order although
initially for six months was extended from time to time till 31.12.1978. It
was, inter alia, laid down in the 5 said order that in the case of those
Railway Servants who are eligible for exercising option under this order but
who have retired and settled up under the SRPF (contributory) Rules, the option
for pension will be valid if they refund the entire government contribution.
The Railway administration was accordingly to take urgent steps to bring the
contents of the said letter to the notice of all concerned employees under
their administrative control including those on leave or on deputation etc. It
was also laid down that to facilitate circulation of this order, the Board
desired that the contents of the order should be published by the Railway in
their Gazette in an extra-ordinary issue as well suitable press releases also
be issued.
The
applicant states that he was on deputation from June 1972 to 8th January, 1975.
Moreover on July 28, 1974 the applicant suffered an acute heart attack almost
coinciding with the date of the issue of this order. Thereafter he was
hospitalised for post Cardiac convalescence and accordingly was on leave for a
long period. He was not even intimated about the content of the order by the
respondents through any communication during his deputation......
.................The
applicant also states that after retirement in October, 1976 the applicant was
cut off from railway and was in darkness about their Pension policy. In 1998
the applicant came to know that some officers of administrative grades were
given pensionary benefit with or without intervention of court since they had
not been informed about option for pension."
The
Tribunal by order dated 25.7.2005 allowed the application of the respondent and
directed the appellants to permit the respondent to opt for pension scheme and
also inform the respondent the amount that was required to be refunded in case
he exercised the option. The Tribunal extracted the reasons assigned by the
Chairman of the Railway Board in his order dated 15.5.2004 rejecting the
request of respondent.
Significantly,
the Tribunal did not disagree with the said finding, nor refer to the enormous
delay in making the claim. The Tribunal allowed the application, as the
Railways had remained unrepresented and had not 6 contested the claim, even
though in the entire application there was no averment denying knowledge of the
availability of the VIII Option dated 23.7.1974.
6.
The appellants challenged the order of the Tribunal in WP (CT)
No.467/2005. The High Court dismissed the writ petition by order dated
25.1.2006. The said order of the High Court is challenged in this appeal by
special leave. The question for consideration is whether the respondent was
entitled to exercise an option to switch over pension scheme, beyond the
stipulated last date, that too twenty two years after retirement and receipt of
the retirement dues under the Contributory Provident Fund Scheme.
7.
When a scheme extending the benefit of option for switchover,
stipulates that the benefit will be available only to those who exercise the
option within a specified time, the option should obviously be exercised within
such time. The option scheme made it clear that no option could be exercised
after the last date. In this case, the respondent chose not to exercise the
option and continued to remain under the Contributory Provident Fund Scheme,
and more important, received the entire PF amount on his retirement. The fact
that the respondent was the head of his 7 department and all communications
relating to the offer of Eighth Option and the several communications extending
the validity period for exercising the option for pension scheme, were sent to
the heads of the departments for being circulated to all eligible
employees/retired employees, is not in dispute. Therefore, the respondent who
himself was the head of his department could not feign ignorance of the Eighth
Option or the extensions of the validity period of the Eighth Option. In fact,
as noticed above, in his application before the Tribunal the respondent refers
to all the options. He is careful to say that he was not `intimated' about the
contents of the last order relating to extension of the option, but does not
say that he was unaware of the order extending the benefit of option.
The respondent
consciously chose not to exercise the option as he admittedly thought that
receiving a substantial amount in a lump sum under the provident fund scheme
(which enabled creation of a corpus for investment) was more advantageous than
receiving small amounts as monthly pension under the pension scheme. In those
days (between 1957 when the pension scheme was introduced and 1976 when the
respondent retired) the benefits under the provident fund scheme and pension
scheme were more or less equal; and there was a general impression among
employees that having regard to average life expectancy and avenues for 8
investment of the lump sum PF amount, it was prudent to receive a large PF
amount on retirement rather than receive a small pension for a few years (particularly
as there was a ceiling on the pension and as dearness allowance was not
included in the pay for computing the pension).
8.
From 1980 onwards, gradually the pension scheme became more and
more attractive as compared to the Contributory Provident Scheme, on account of
various factors, like dearness allowance being included in the pay for
computing pension, ceiling on pension being removed and liberalisation of
family pension etc. But the respondent was well aware that not having opted for
pension scheme and having received the PF amount on retirement, he was not
entitled to seek switch over to pension scheme. But in 1996, when the
respondent learnt that some others who had retired in and around 1973 to 1976
had been permitted to exercise the option in 1993-94 on the ground that they
had not been notified about the option, he decided to take a chance and gave a
representation seeking an option to switch over to pension scheme. Having
enjoyed the benefits and income from the provident fund amount for more than 22
years, the respondent could not seek switch over to pension scheme which would
result in respondent getting in addition to the PF amount already 9 received, a
large amount as arrears of pension for 22 years (which will be much more than
the provident fund amount that will have to be refunded in the event of switch
over) and also monthly pension for the rest of his life. If his request for
such belated exercise of option is accepted, the effect would be to permit the
respondent to secure the double benefit of both provident fund scheme as also
pension scheme, which is unjust and impermissible. The validity period of the
option to switch over to pension scheme expired on 31.12.1978 and there was no
recurring or continuing cause of action. The respondent's representation dated
8.10.1998 seeking an option to shift to pension scheme with effect from 1976
ought to have been straight away rejected as barred by limitation/delay and
laches.
9.
The order of the Tribunal allowing the first application of respondent
without examining the merits, and directing appellants to consider his
representation has given rise to unnecessary litigation and avoidable
complications. The ill-effects of such directions have been considered by this
Court in C. Jacob vs. Director of Geology and Mining & Anr. - 2009 (10) SCC
115 :
"The
courts/tribunals proceed on the assumption, that every citizen deserves a reply
to his representation. Secondly they assume that a mere direction to consider
and dispose of the representation does not involve any `decision' on rights and
obligations of parties. Little do 10 they realize the consequences of such a
direction to `consider'. If the representation is considered and accepted, the
ex-employee gets a relief, which he would not have got on account of the long
delay, all by reason of the direction to `consider'. If the representation is
considered and rejected, the ex-employee files an application/writ petition,
not with reference to the original cause of action of 1982, but by treating the
rejection of the representation given in 2000, as the cause of action. A prayer
is made for quashing the rejection of representation and for grant of the
relief claimed in the representation. The Tribunals/High Courts routinely
entertain such applications/petitions ignoring the huge delay preceding the
representation, and proceed to examine the claim on merits and grant relief. In
this manner, the bar of limitation or the laches gets obliterated or
ignored."
When a
belated representation in regard to a `stale' or `dead' issue/dispute is
considered and decided, in compliance with a direction by the Court/Tribunal to
do so, the date of such decision can not be considered as furnishing a fresh
cause of action for reviving the `dead' issue or time-barred dispute. The issue
of limitation or delay and laches should be considered with reference to the
original cause of action and not with reference to the date on which an order
is passed in compliance with a court's direction. Neither a court's direction
to consider a representation issued without examining the merits, nor a
decision given in compliance with such direction, will extend the limitation,
or erase the delay and laches. A Court or Tribunal, before directing
`consideration' of a claim or representation should examine whether the claim
or representation is with reference to a `live' issue or whether it is with 11
reference to a `dead' or `stale' issue. If it is with reference to a `dead' or
`state' issue or dispute, the court/Tribunal should put an end to the matter
and should not direct consideration or reconsideration. If the court or
Tribunal deciding to direct 'consideration' without itself examining of the
merits, it should make it clear that such consideration will be without
prejudice to any contention relating to limitation or delay and laches.
Even if
the court does not expressly say so, that would be the legal position and
effect.
10.
Even on merits, the application has to fail. In Krishena Kumar vs.
Union of India - 1990 (4) SCC 207, a Constitution Bench of this Court
considering the options given to the Railway employees to shift to pension
scheme, held that prescription of cut off dates while giving each option was
not arbitrary or lacking in nexus. This Court also held that provident fund
retirees who failed to exercise option within the time were not entitled to be
included in the pension scheme on any ground of parity.
Therefore,
the respondent who did not exercise the option available when he retired in
1976, was not entitled to seek an opportunity to exercise option to shift to
the pension scheme, after the expiry of the validity period for option scheme,
that too in the year 1998 after 22 years.
11.
The respondent relied on the decision of a two-Judge Bench of this
Court in Union of India vs. D.R.R. Sastri - 1997 (1) SCC 514 in support of his
claim. The said decision is clearly distinguishable on facts. In that case, the
respondent, a railway employee, had gone on deputation to Heavy Engineering
Corporation, and later resigned from railway service with effect from 26.6.1973
and was absorbed in the service of the said Corporation. When the Liberalised
Pension Scheme was introduced by the Railway Board by letter dated 23.7.1974,
an opportunity was given to all persons governed by the Provident Fund Scheme
who were in service of Railways as on 1.1.1973 to opt for the pension scheme.
The Railway Board directed that the availability of such option should be
brought to the notice of all retired railway servants who were in service as on
1.1.1973, The respondent therein who had left the Railway service on 26.6.1973
was not informed of the availability of the option. He could not therefore
exercise the option. In fact, he retired from service of the Heavy Engineering
Corporation without any pension as that Corporation had also no pension scheme.
The respondent therein approached the Central Administrative Tribunal in 1993
alleging that he came to know about the said option only in 1993 and that his representation
dated 12.6.1993 for relief was rejected by the Railway Board on 13.7.1993. The
Tribunal held 13 that the respondent should be given the opportunity to
exercise his option to shift to pension scheme, in terms of the Railway Board's
letter dated 23.7.1974, as he was prevented from exercising his option by the
failure of Railways to inform him about the option. The Tribunal also took note
of the fact that another railway employee was allowed to exercise the option
long after the date for exercising the option had expired, but the respondent
was not given a similar benefit. The said decision of the Tribunal was affirmed
by this Court. The decision in D.R.R. Sastri is of no assistance as it does not
lay down any proposition that the last date prescribed for exercising option is
not relevant or that option could be exercised at any time, even if a last date
had been stipulated for exercise of the option. That case was decided on its
peculiar facts as the employee (who was on deputation and who resigned from the
service of railways on 26.6.1973 when on deputation) was not made aware of the
option to which he was entitled, even though there was a specific instruction
that all employees who had retired after 1.1.1973 should be informed about the
option. The facts of this case are completely different. Here the employee was
in service of the Railways itself before and at the time of retirement. He was
working as the Head of the Department and was receiving all communications
relating to option for being circulated to all 14 employees in his department.
Therefore, the question of respondent not being aware of the option does not
arise.
12.
The Tribunal in this case has assumed that being `aware' of the
scheme was not sufficient notice to a retiree to exercise the option and
individual written communication was mandatory. The Tribunal was of the view
that as the Railways remained unrepresented and failed to prove by positive
evidence, that respondent was informed of the availability of the option, it
should be assumed that there was non-compliance with the requirements relating
to notice. The High Court has impliedly accepted and affirmed this view. The
assumption is not sound. The Tribunal was examining the issue with reference to
a case where there was a delay of 22 years. A person, who is aware of the
availability of option, cannot contend that he was not served a written notice
of the availability of the option after 22 years. In such a case, even if
Railway administration was represented, it was not reasonable to expect the
department to maintain the records of such intimation/s of individual notice to
each employee after 22 years. In fact by the time the matter was considered
more than nearly 27 years had elapsed. Further when notice or knowledge of the
availability of the option was clearly inferable, the employee cannot after 15
a long time (in this case 22 years) be heard to contend that in the absence of
written intimation of the option, he is still entitled to exercise the option.
This Court considered the meaning of `notice' in Nilkantha Sidramappa
Ningashetti v. Kashinath Somanna Ningashetti etc. [AIR 1962 SC 666]. This Court
held :
"We
see no ground to construe the expression `date of service of notice' in col. 3
of Art. 158 of the Limitation Act to mean only a notice in writing served in a
formal manner. When the Legislature used the word `notice' it must be presumed
to have borne in mind that it means not only a formal intimation but also an
informal one.
Similarly,
it must be deemed to have in mind the fact that service of a notice would
include constructive or informal notice. If its intention were to exclude the
latter sense of the words `notice' and `service' it would have said so
explicitly."
13.
Learned counsel for the respondent lastly submitted that one K.V. Kasturi
who had retired in 1973, was granted the benefit of exercising the option by an
order dated 19.9.1994, and therefore, principles of equality and equal
opportunity required that the Railways should give him the option. The Chairman
of Railway Board, while rejecting the respondents' representation by order
dated 15.5.2004 has clarified that K.V. Kasturi's case was similar to that of
D.R.R. Shastri as he had also not been informed of the availability of option.
There is another angle to the issue.
If
someone has been wrongly extended a benefit, that cannot be cited as a
precedent for claiming similar benefit by others. This court in a series of 16
decisions has held that guarantee of equality before law under Article 14 is a
positive concept and cannot be enforced in a negative manner; and that if any
illegality or irregularity is committed in favour of any individual or group of
individuals, others cannot invoke the jurisdiction on courts for perpetuating
the same irregularity or illegality in their favour also, on the reasoning that
they have been denied the benefits which have been illegaly extended to others.
See : Chandigarh Administration vs. Jagdish Singh - 1995 (1) SCC 745; Gursharan
Singh & Ors. vs. New Delhi Municipal Committee & Ors. - 1996 (2) SCC
459;
Faridabad
C.T. Scan Centre vs. Director General, Health Services - 1997 (7) SCC 752;
State of Haryana vs. Ram Kumar Mann - 1997 (3) SCC 321, State of Bihar &
Ors. vs. Kameshwar Prasad Singh & Anr. - 2000 (9) SCC 94 and Union of India
vs. International Trading Company - 2003 (5) SCC 437. A claim on the basis of
guarantee of equality, by reference to someone similarly placed, is permissible
only when the person similarly placed has been lawfully granted a relief and
the person claiming relief is also lawfully entitled for the same. On the other
hand, where a benefit was illegally or irregularly extended to someone else, a
person who is not extended a similar illegal benefit cannot approach a court
for extension of a similar illegal benefit. If such a request is 17 accepted,
it would amount to perpetuating the irregularity. When a person is refused a
benefit to which he is not entitled, he cannot approach the court and claim
that benefit on the ground that someone else has been illegally extended such
benefit. If he wants, he can challenge the benefit illegally granted to others.
The fact that someone who may be not entitled to the relief has been given
relief illegally is not a ground to grant relief to a person who is not entitled
to the relief.
14.
The appeal is therefore allowed and the orders of the Tribunal and
the High Court are set aside and the original application of the respondent
before the tribunal is dismissed.
.............................J. (R V Raveendran)
............................J.
New Delhi;
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