The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.14751 of 2015 An application under Articles 226 and 227 of the Constitution of India. Simanchal Rath State of Odisha & others . Petitioner Mr. S. Senapati, Advocate -versus- . Opp. Parties Mr. S. Das, AGA Mr. A.R. Mishra, Advocate (For O.P. Nos.3 & 4) CORAM: JUSTICE A.K. MOHAPATRA _____________________________________________________ Date of hearing : 26.06.2023 | Date of Judgment: 03.08.2023 ______________________________________________________ A.K. Mohapatra, J. : 1. Heard Mr. S. Senapati, learned counsel for the Petitioner as well as Mr. S. Das, learned Addl. Government Advocate for the State-Opposite Parties and Mr. A.R. Mishra, learned counsel for the O.P. Nos.3 & 4. Perused the pleadings of the parties as well as documents annexed thereto. 2. The present writ application has been filed by the petitioner with the following prayer:- “It is, therefore, humbly prayed that this Hon’ble Court may graciously be pleased to issue Rule NISI // 2 // calling upon the Opp. Parties to show cause as to why appropriate writ/writs shall not be issued directing them to allow the petitioner to change his option from CPF to Pension Scheme in view of the Statute-289 and the Syndicate decision dtd.30.08.1997 and The Odisha Universities Fund (Administration) Rules, 2012 within a stipulated time and on perusal of causes shown if any or upon insufficient causes shown, make the said rule absolute and may pass any appropriate order as deemed just and proper.” Employees’ Pension 3. It is submitted by learned counsel for the Petitioner that the Odisha University First Statute, 1990 was introduced for the first time in the year 1990 and in view of Rule 288 of the said Rules, the employees retiring on or after the 1st April, 1990 shall be entitled either to the benefit of the pension scheme as applicable to the State Govt. employees as amended from time to time or to the benefits of the Contributory Provident Fund (CPF) of the University in the event the employee concerned opts for the same. Statute 289 (1) provides that the existing employees who have not already
Facts
exercised their option under the First Statute shall exercise their option in writing either for the pension scheme or for the Contributory Provident Fund under Statute 288 within a period of six months from the date the first statute of the university came into force. 4.
Legal Reasoning
There is no dispute with regard to the coming into force of the statute i.e. w.e.f. 1.1.1990. He further contended that in view of the 289 (3), which is a deeming fiction, the employees who fail to exercise their option as required under the Statute, 1990 within the prescribed time limit, he or she shall be deemed to have opted for the pension scheme. Accordingly, it was submitted by learned Addl. Government Advocate that the case of the petitioner is to be considered strictly in the light of the provisions contained in statute 289 of the Odisha University first statute 1990. It was also contended that the petitioner having exercised his option in the year 1993 which is an admitted fact, the petitioner is legally estopped to change his stand and opt for the pension scheme at a belated stage. // 8 // Accordingly, it was also contended that the petitioner’s case is to be covered under the CPF scheme and not under pension scheme. 12. Having heard the learned counsels appearing for the respective parties and on a careful scrutiny of the background facts of the present cases as well as the pleadings of the respective parties, this Court is of the view that the case of the petitioner is to be considered in the light of the first Statute University, 1990. Therefore, for better appreciation, the provisions contained under Statute 288 as well as 289 are quoted hereinbelow:- Pension of Contributory Provident Fund Every employee retiring on or after the 1st day of April, 1985 be entitled 288. either to the benefit of the Pension Scheme as applicable to the State Government employees as amended from time to time, or to the benefit of the Contributory Provident Fund of the University provided in this Chapter, as he may opt: Option Provided however, that for the purpose of Contributory Provident Fund, the term “employee” shall be as defined in Chapter VII of this Part. 289. (1) The existing employees who have not already exercised their option under the Statutes shall exercise their option in writing either for the Pension Scheme or the Contributory Provident Fund Scheme under Statute 288 within a period of six months from the date these Statutes come into force. The employees recruited thereafter to the service of the University shall exercise their option either for the Pension or Contributory Provident Fund Scheme within a period of six months of their appointment: Option once exercised be final Provided that the employees who have crossed the age of 58 years but have not attained the age of 60 years shall also have the right to exercise their option as aforesaid within a period of six months from the date these statutes come into force, but not later than one month prior to the date they attain the age of 60 years. (2) The option as provided above, shall be exercisable once only in respect of either Scheme which shall be final irrespective of any change that may be made in any such scheme from time to time. The fact of exercising such option shall be recorded in the service book of the employee by the Registrar or such other office nominated by him. Pension and gratuity (3) If any employee fails to exercise the option required under these Statutes within the prescribed time limit, he/ she shall be deemed to have opted for the Pension Scheme. // 9 // 13. On perusal of Statute 289 (1) it appears that the existing employees who have not already exercised their option under the Statute (Odisha University first Statute, 1990) shall exercise their option in writing either for pension scheme or for CPF scheme under Statute 288 within a period of six months from the date these statutes came into force (admittedly with effect from 01.01.1990). On further, careful scrutiny of statute 289 (3), this Court is of the view that the said provision is in the nature of a deeming fiction applicable to the employees who fail to exercise their option as required under these statutes within the prescribed time limit. Statute 289 (3) further provides that in case the University employees fail to exercise their option within the prescribed time limit i.e. from 1.1.1990 to 30.06.1990, they shall be deemed to have opted for the pension scheme. This Court is also of the considered view that there is no ambiguity so far the provisions contained in the first statute, 1990are concerned. Therefore, the case of the petitioner needs to be considered in view of the provisions contained in the Statute 289 of the First Statute, 1990. 14. On perusal of the record and documents annexed to the writ application, this Court came across the letter dated 23.03.2011 under Annexure-D/3. The said letter has been introduced at the instance of the O.P. Nos.3 & 4 by filing an affidavit. Letter dated // 10 // 23.03.2011 has been issued by the F.A.-cum-Additional Secretary to Govt. to the Registrar, Berhampur University. Under the aforesaid letter, the Govt. of Odisha has taken a specific stand that the change of option from CPF scheme to Pension scheme is to be carried out as per the provisions contained in Statute 289 (1) of Odisha University first Statute 1990. Accordingly, it was held in the aforesaid letter that the resolution dated 30.08.1997 of the Syndicate of the University is beyond the scope of the aforesaid Statute. On a plain reading of the aforesaid letter of the Government to the Registrar gives an impression that the Government has rightly pointed out that the change of option shall be governed by the provisions of the first statute, more specifically, statute 289. Thus any decision or action taken contrary to the provisions contained in Statute 289 would be contrary to the first Statute 1990 and the same would be invalid in law. 15. Reverting back to the facts of the present case, this Court is required to determine the issue as to whether the petitioner has exercised his option at all in terms of the first statute 1990 or not? it was contended by learned counsel for the University that the prior to the first statute came into force, the petitioner had opted for the CPF scheme on dtd.18.04.1989. It was also contended by learned counsel appearing for the Opposite Parties that the petitioner had // 11 // once again opted for CPF scheme on 10.11.1993. Therefore, the petitioner had twice exercised his option to come under the CPF scheme. This court on a careful analysis of the dates, is of the considered view that the same is either prior to 1.1.1990 or after 30.06.1990. The relevant time for the purpose of statute 289 of the first statute 1990 is the time period between 1.1.1990 and 30.06.1990. It is also the admitted position of the parties, that the petitioner had not opted for any specific scheme within the prescribed time limit as has been prescribed under statute 289 (1) of the first statute 1990. This fact is evident from the letter dated 22.03.2016 under Annexure-14. On perusal of the aforesaid letter it appears that the same has been issued under the signature of the Deputy Registrar of Berhampur University to the first appellate authority and the Registrar, Berhampur University under the RTI Act. 16. The information vide letter dated 22.03.2016 was provided on an application being filed by the petitioner under the RTI Act. Letter dated 22.03.2016 under Annexure-14 to the writ application clearly reveals that the Deputy Registrar on verification of the record informed that the petitioner has not opted for either the CPF or GPF during the period from 1.1.1990 to 30.06.1990. Further, on perusal of the letter under Annexure-3 series, it appears that the // 12 // petitioner while admitting that earlier he had opted for the CPF had subsequently made a request to change over to the pension scheme vide his letter dated 04.02.2005 as well as the letter dated 18.04.2006. On further scrutiny of the record it appears that a group of employees of the Berhampur University have also represented to the Commissioner-cum-Secretary to the Chancellor of the University with a prayer for change of option from CPF to pension scheme vide their representation dated 20.03.2003 under Annexure- 4. 17. The relevant consideration in the present case, is whether the petitioner has opted for any specific scheme in terms of the statute 289 or not? No doubt the petitioner had initially opted for CPF scheme i.e. prior to the statute 1990 came into force and thereafter after the cut off date in the year 1993. However, so far the facts of the present case is concerned, it is an admitted fact that the petitioner had not opted for any specific scheme be it CPF or the pension scheme. Therefore, the law is to be analysed keeping in view the aforesaid facts while applying the provision of the Statute 289 to the facts of the present case. On an analysis of facts, this Court is of the considered view that 289 (1) of the first statute 1990 provides that the petitioner should have opted for any specific scheme within the prescribed time i.e. from 1.1.1990 to 30.06.1990. // 13 // However, the petitioner has not opted for any specific scheme within the aforesaid stipulated time as provided in statute 289(1) of the Statute, 1990. Therefore, irrespective of the fact that the petitioner had opted for any particular scheme either prior to the first statute came into force or after the prescribed time limit, the case of the petitioner is to be treated as a case where the employee of the University has not specifically opted for either the CPF or the pension scheme within the prescribed time limit as provided under statute 289 (1) of the first statute 1990. 18. Therefore, keeping in view the provision of statute 289, the case of the petitioner is to be governed under statute 289 (3), that is, the deeming provision in a case where the employee of the university has not opted for any specific scheme within the prescribed time limit as provided under Statute 289 (1). 19. Since, statute 289 (3) of the first statute, as has been quoted hereinabove, provides that in a case where the university employee fails to exercise the option as required under these statute (as provided under Statute 289 (1)) within the prescribed time limit again (as prescribed in Statute 289) he or she shall be deemed to have opted for the pension scheme. Therefore, in the facts and circumstances of the present case, where it is clear that the petitioner has not opted for any specific scheme under statute 289 // 14 // (1) his case shall be governed under Statute 289 (3) and by applying deeming provision the case of the petitioner is to be considered under the pension scheme irrespective of the fact that the petitioner had exercised his option contrary to the provision contained in statute 289 (1). Such exercise of option contrary to the statute 289 (1) is stated to be non est in the eye of law and the same will not have any bearing so far the claim of the petitioner has involved in the present writ application is concerned. 20. In course of his argument, learned counsel for the petitioner referred to the judgment of this Court in Sarat Behera vs. State of Odisha & others as well as batch of other matters decided on 31.03.2022. Referring to the aforesaid judgment, learned counsel for the petitioner submits that the very same statute 289 was under consideration by this Court. While deciding the above referred case this Court has also taken note of the judgment of the Hon’ble Supreme Court in Union of India & Anr. vs. S.L. Verma and others, reported in (2006) 12 SCC 53. Further, this Court has also referred to a judgment of this Court by a coordinate bench in Dr. Dibakar Panigrahy & others vs. Berhampur University and others in W.P.(C) No.13757 of 2015 decided on 03.07.2020. Finally, a batch of writ application had been disposed of with a direction to the Opposite Parties to consider the case of the petitioner afresh in // 15 // the light of the judgment in Dr. Dibarkar Panigrahy’s case (supra) and to take a final decision within a period of three months from the date of communication of copy of the judgment in Sarat Behera’s case. Learned counsel for the Petitioner further referred to the judgment of the Hon’ble Supreme Court in University of Delhi vs. Shashi Kiran and others and a batch of similar other civil appeals reported in 2022 SCC Online SC 594. 21. On perusal of the judgment in Sashi Kiran’s case (supra), it is seen that the Hon’ble Supreme Court observed that the same involves adjudication at the question relating to the employee of Delhi University by the Hon’ble Supreme Court of India. The issue involved in the said case was whether the employees of the University were to be governed under the CPF scheme or they will be considered under the GPF and pension scheme. In the above reported case, the Central Government issued a notification with respect to change of the employees from CPF to GPF scheme. Such notification was issued on 1.5.1987 contemplating that all the CPF beneficiaries who were in service on 1.1.1986 and were still in service will be deemed to have come over to GPF unless a contrary was exercised by them in writing by 30.09.1987 to continue to be governed under CPF. After detail analyzed of the facts, the Hon’ble Supreme Court crystallized the fact by creating a legal fiction that // 16 // thus were different categories of employees. So far the facts of the present case is concerned, the same would be governed by the scenario-B and the case of the N.C. Bakshi and batch of other cases. 22. In N.C. Bakshi’s case the factual scenario was that the University employees who had not exercised the option by the cutoff date contemplated under the notification dated 1.5.1987 and were thus deemed to have come over to GPF, however, such employees had exercised the option to remain under the CPF scheme during first two extensions granted by the University between 1.10.1987 to 29.02.1988 and were now praying that they will be allowed to continue under GPF. Such cases were decided in N.C. Bakshi and batch of other cases and the factual position of the aforesaid are somewhat identical to the facts of the present writ application. In N.C. Bakshi and batch of other cases the learned Single Judge of the High Court while deciding the batch of cases placed reliance on R.N. Virmani and batch of other cases to come to a conclusion that the option to remain under CPF was exercised by the petitioner after the cutoff date and only during the extension granted by the University which extension were without any authority. 23. Accordingly, learned Single Judge of the High Court had come to a conclusion that in view of the law laid down by the // 17 // Hon’ble Supreme Court in S.L. Verma’s case (supra) that when employee is required to exercise his option in view of the notification of the Central Government dated 1.5.1987 and if such option is a positive option to be given only if an employee was desirous of continuing under the CPF scheme and that too by 30.09.1987 and in the event no positive option was received from an employee expressing his or her desire to continue with the CPF scheme then the employee would automatically be covered by the pension scheme by virtue of deeming legal fiction created under the provisions of notification dated 1.5.1987. The aforesaid judgment of the learned Single Judge Bench was affirmed by the Division Bench of the High Court thereafter the Delhi University made an appeal to the Supreme Court. 24. The Hon’ble Supreme Court while deciding the issue which is reported in 2022 SCC Online SC 594 has affirmed the judgment of the High Court both by the Hon’ble Single Judge as well as the
Arguments
It was also contended by learned counsel for the Petitioner that the employees recruited thereafter to the University service shall exercise their option either for the pension (GPF) or for // 3 // Contributory Provident Fund (CPF) scheme within six months from the date of their appointment. Drawing attention to the Statute 289(3), learned counsel for the petitioner further contended that the same provides if any employee fails to exercise the option as required under the aforesaid statute within the prescribed time limit, the employee shall be deemed to have opted for the pension scheme. Thus, it was argued before this Court that in the event the employee fails to opt for the CPF Scheme it will be presumed the employee has opted for the pension scheme and accordingly his claims shall be processed. 5. Learned counsel for the Petitioner at this juncture also contended that so far the present petitioner is concerned it is his admitted case that he has not opted for either the CPF or GPF Scheme within the stipulated period of time i.e. from 01.01.1990 to 30.06.1990. In the said context, learned counsel for the Petitioner refers to the letter of the Berhampur University dated 22.03.2016 under Annexure-14 which has been obtained under the provisions of the RTI Act. 6. Learned counsel appearing for the Berhampur University, on the other hand, submitted that the petitioner had opted for CPF Scheme on 18.04.1989 prior to the university first statute came into force in the year 1990. He further submitted that on the basis of // 4 // such exercise option by the petitioner, the university had already processed the files and the petitioner was kept under the CPF Scheme. Therefore, it was submitted that since the petitioner has already opted for the CPF Scheme there was no scope on the part of the university to change option and bring the petitioner under the pension scheme. He also referred to the letter of the State Government filed as Annexure-D/2 by way of additional affidavit. Referring to the context of the letter under Annexure-D/2, learned counsel for the Berhampur University submitted that the State Government has taken a decision that the decision of the syndicate of the University dated 30.08.1997 is beyond the scope of the first statute. Further, on perusal of the said letter dated 23.03.2011 under Annexure-D/3 to the affidavit of the Opposite Party Nos.3 and 4, it appears that the State Government has opined that the change of option from CPF to Pension scheme be carried out as per the provisions contained in statute 289(1) of the Odisha University first statute, 1990. 7. It is further contended by learned counsel for the Berhampur University that a new chapter was added to the Berhampur University statute 1966 on 28.05.1985 providing for an opportunity to the employees to exercise their option to either opt for the CPF scheme or for the pension scheme. He further // 5 // contended that once such an option is exercised the same shall be finally. Accordingly, he also submitted that such option shall be exercised within six months from the date of the First Statute of the university was amended, failing which it will be deemed that the petitioner has opted for the CPF scheme. Learned counsel for the University further contended that the petitioner having not exercised any option within the prescribed period of six months in view of the amendment to the University statute in 1985, it was deemed that he had exercised the option to remain under CPF scheme. He further contended that the prior to 28.05.1985 there was no provision for pension scheme for the employees of the University. 8. It was also contended by learned counsel for the University that on 19.11.1988 the Odisha University employees condition of service statute, 1988 came into force. The said statute governs the service condition of university employees including that of the Berhampur University. Under Statute 36 (1) (2) of the aforesaid statute, it is provided that an employee is to exercise option as to whether he desires to remain under CPF scheme or pension scheme and such exercise of option by the employee shall be final. He further contended that accordingly the petitioner exercise his option on 18.04.1989 thereby choosing to remain under CPF scheme and // 6 // on the exercise such option, the university has accepted the petitioner’s option and accordingly the same has been recorded in the service book of the petitioner. It was contended by learned counsel for the University that after the first statute of odisha university, 1990 came into force, the petitioner had also exercise his option on 10.11.1993 to remain under the CPF scheme and such exercise of option was also accepted by the University and the same has been recorded in his service book. 9. Learned Addl. Government Advocate appearing on behalf of the State-Opposite Parties adopted the argument advanced by learned counsel appearing for the Opposite Party Nos.3 and 4- University. He further contended that having exercised the option once, further exercise of option to remain under the CPF scheme it is no more available to the petitioner to opt for the pension scheme. He further contended that the University is the authority before whom the petitioner is required to submit his option and accordingly on the basis of the option exercise by the petitioner, the university concerned has made an entry in the service book of the Petitioner and accordingly, the case of the petitioner has been processed on that basis. 10. Learned Addl. Government Advocate drawing attention of this Court to para-6 of the counter affidavit filed on behalf of the // 7 // Opposite Party No.1 submits before this Court that the Odisha University Statute shall apply to the facts of the petitioner’s case. He also referred to the provisions contained in Statute 289 (1), (2) & (3) as has been quoted in para-6 of the counter affidavit. Referring to statute 289(1), Mr. Das, learned Addl. Government Advocate submitted that existing employees who have not yet exercised their option under the statute shall exercise their option in writing either for pension scheme or for CPF under statute 288 within a period of six months from the date of the said statute came into force. 11.
Decision
Division Bench and accordingly disposed of the appeal preferred by Delhi University. While dispose of the appeal in terms of the order passed in the aforesaid case and on perusal of the aforesaid judgment in Sashi Kiran’s case (supra) and batch of other cases, this Court deems it relevant to quote hereinbelow the para-20 and 21 of the Judgment:- // 18 // 20. According to the notification dated 01.05.1987 two situations were contemplated. First, the deeming provision in terms of which the concerned employee was taken to have come over to GPF. The second situation being where a conscious option was exercised before the cut-off date to continue to be under CPF. R.N. Virmani Division Bench of the High Court, as no conscious option was exercised by the cut- off date. Consequently, the concerned employees must be deemed to have come over to GPF. Logically, it would be immaterial whether the concerned employee continued to make contribution assuming himself to be covered under CPF, even though contributions were made by the concerned authorities. The benefit was therefore rightly granted in favor of the employees and the entire contribution was directed to be refunded. The University has chosen not to appeal against that decision and thus the matter has attained finality. 21. Theoretically, extension of the same principle would be that if no option was exercised before the cut-off date, but an option was exercised after the cut-off date was extended; and if no switchover could be allowed after the cutoff date, the decisions rendered by the learned Single Judge and the Division Bench in the N.C. Bakshi batch of cases wre also quite correct. Consequently, irrespective of the fact that the concerned employees had exercised the option to continue to be under CPF, such exercise of option would be non est in the eyes of law. That in fact is the ratio of the decision in S.L. Verma’s case. Thus, both these batches of cases were rightly decided by the learned Single Judge and the Division Bench. We, therefore, dismiss the appeal in N.C. Bakshi batch of cases. 25. The view expressed by this Court in the present case gets ample support from the view expressed by the Hon’ble Supreme Court in para-20 and 21 of the judgment in Sashi Kiran’s case (supra). Therefore, this Court is of the considered view that since the petitioner has not exercised any option under Statute 289 of the // 19 // first statute 1990 within the time prescribed in statute 289 (1) specifically, therefore, the case of the petitioner is to be considered in terms of statute 289 (3) that is by applying the deeming legal fiction provided under the first statute 1990. 26. In view of the aforesaid analysis of law and facts further keeping in view the provisions contained in Statute 288 and 289 of the Odisha University First Statute, 1990, this Court directs the Opposite Parties to consider the cases of the petitioner in view of the legal position as has been discussed hereinabove as well as keeping in view the judgment of the Hon’ble Supreme Court in Sashi Kiran’s case (supra) reported in 2022 SCC Online SC 594. Further it is directed that in the event the Opposite Parties come to a conclusion that the petitioner has not exercised any option under the Odisha University first Statute, 1990 as prescribed under Statute 289 within the prescribed time limit then the case of the petitioner is bound to be considered under statute 289 (3). Accordingly, the case of the petitioner is to be considered under statute 289 (3). It is needless to mention that the opposite parties are bound to extend the benefits accruing in favour of the petitioner by applying the said provision to the facts of the petitioner’s case. It is further directed that the Opposite Parties shall do well to consider the case of the petitioner in the light of the aforesaid direction within a period of // 20 // two months from the date of communication of a certified copy of this judgment by the Petitioner. 27. Accordingly, the writ petition is disposed of in terms of the aforesaid observations. However, there shall be no order as to cost. Orissa High Court, Cuttack The 3rd of August, 2023/ Anil. (A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 07-Aug-2023 18:24:13