RAJASTHAN AGRICULTURE UNIVERSITY, BIKANERversusSTATE OF RAJASTHAN & ORS.

                       [2013] 9 S.C.R. 276


A     RAJASTHAN AGRICULTURE UNIVERSITY, BIKANER
                             v.
             STATE OF RAJASTHAN & ORS.
              (Civil Appeal No. 7160 of 2013)
                       AUGUST 27, 2013
B
            [ANH,. R. DAVE AND DIPAK MISRA, JJ.]

        Service Law:
       Retiral benefits - CPF Scheme and Pension Scheme -
C Belated option of employee for CPF scheme accepted by
  employer - After getting retiral benefits accordingly, employee
  claiming benefit of Pension Scheme - Held: A special favour ·
  was done to respondent by appellant University by accepting
  his option even after the prescribed period was over, and,
D therefore, he cannot be permitted to take undue advantage
  of the same - Notification No. Pension/RAJAUIC/91/F-751
  3668-768 dated 17.8.1991.
         Respondent No. 2, while in employment of the
E   appellant-University, belatedly opted for the C.P.F.
    Scheme, which was accepted by the appellant-University.
    On his retirement from the appellant-University, he was
    paid all his retirement benefits payable to him under the
    C.P.F. Scheme. Thereafter, he approached the University
F   stating that as he had not-exercised his option within the
    prescribed period of 3 months from the date of the
    Notification dated 17 .08.1991, 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
G   Scheme. The University did not accept the prayer.
    Respondent No. 2 then filed a writ petition, which was
    allowed by the single Judge of the High Court, giving a
    direction to the appellant-University to consider his case.
    The Division Bench of the High Court directed the ·
H                              276
 RAJASTHAN AGRICULTURE UNIVERSITY, BIKANER 277
           v. STATE OF RAJASTHAN
appellant-University to give pension to respondent No. 2.            A.
    Allowing the appeal, the Court.
    HELD: Though, respondent No. 2 had not exercised
his option within the period prescribed under the
Notification dated 17 .8.1991, but when he exercised the             B
option on 3.1.1992, for continuing to be under the C.P .F.
Scheme and the appellant-University accepted the same,
he would not get benefit under the deeming fiction
incorporated in the Notification. It was his conscious
effort to see that he continues with the C.P.F. Scheme. A            c
special favour was done to respondent No. 2 by the
employer by accepting his option ever after the
prescribed period was over, and, therefore, ·he cannot be
permitted to take undue advantage of the same. The High
Court was in error by giving a direction to the appellant-
                                                                     0
University that respondent No. 2 should be given
pension as if he had opted for the Pension Scheme. [para
22,24 and 25] [282-8-C, F-G]
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7160 of 2013.                                                        E
    From the Judgment & Order dated 20.01.2011 of the High
Court of Judicature for Rajasthan at Jodhpur in D.B. Civil
Special Appeal (W) No. 32 of 2008.
     Dr. Manish Singhvi, AAG, Pragati Neekhra, H.D. Thanvi,
Rishi Motoliya, Preeti Thanvi, Sarad Kumar Singhania, S.S.           F
Shamshery, V.M. Vishnu, Arun Bhardwaj, Bharat Sood, C.S.
Ashri, Milind Kumar for the appearing parties.
    The Judgment of the Court was delivered by
    ANIL R. DAVE, J. 1. Leave granted.
    2. Being aggrieved by the judgment delivered in D.B. Civil       G
Special Appeal (Writ) No. 32 of 2008 in S.B. Civil Writ Petition
No. 1738 of 2003 dated 20th January, 2011, 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,   H
    278      SUPREME COURT REPORTS                   ·[2013] 9 S.C.R.


A   are as under:-                            '19/
         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
8   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
C 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
D of Rajasthan in respec;t 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
E under Notification No. Pension/RAJAU/C/91/F-75/3668-768
  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
F 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
G 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
H him had been accepted by the appellant-University and the
RAJASTHAN AGRICULTURE UNIVERSITY, BIKANER 279
  v. STATE OF RAJASTHAN [ANIL R. DAVE, J.]
acceptance was ~ton record after the authorized signatory            A
of the appellant-~niversity 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     B
for the C.P.F. Scheme, he 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,     C
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                D
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           E
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 '.W08 and at the same time a decision
was taken by the appellant-University not to change its decision
with regard to giving benefit of the C.P.F. Scheme to respondent     F
No. 2.
     11. By virtue of the impugned judgment delivered by the
High Court, the appellan~-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       G
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.
                                                                     H
    280      SUPREME COURT REPORTS               [2013] 9 S.C.R.


A       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
B 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.
c      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 ~Y the appellant-
D 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
E 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.
F      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
G towards respondent No. 2. He had, therefore, 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
H respondent No. 2 had not exercised his option within the period
RAJASTHAN AGRICULTURE UNIVERSITY, BIKANER 281
  v. STATE OF RAJASTHAN [ANIL R. DAVE, J.]
prescribed in the Notification dated 17th August, 1991, he ought      A
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     B
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      C
were also paid pension.
    18. We have heard the learned counsel and also have
considered the relevant record forming part of the paper book.
    19. We are of the view that the High Court ought not to           0
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      E
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 F
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                    G
     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         H
    282       SUPREME COURT REPORTS                [2013] 9 S.C.R.


A         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 ex~rcised 'the option on 3rd January, 1992, for
 8 continuing to be under the C.P.F. Scheme and when the
    appellantiUniversity had graci,ously 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
·9 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
 D 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
 E 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
 F option dated 3rd January, 1992. It was 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.
 G         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.
H R.P.                                             Appeal allowed.