Dtc v. Sudershan Lal Sharma

lD )r % IN THE HIGH COURT OF DELHI w.P.(c) 4oLl2oLo DTC Through: Mrs.Avnish Ahlwawat, Chaudhary, Advocate VCTSUS ..,.. Petitioner Ms. Latika -^"--t{t (PRADEEP NANDRAJOG) JUDGE SUDERSHAN LAL SHARMA ."., Respondent Through: Ms.Rekha Aggarwal, Mr.D.S.Kauntae, Advs. v*' t'fffrHiE MR. JUsrtcE 'RADEE' NANDRAJ'G HON',BLE MR. TUSTICE MOOL CHAND GARG

¶1Whether the Reporters of local papers may be allowed to see the judgment?

¶2To be referred to RePorter or not?

¶3Whether the judgment should be reported in the Digest? PRADEEP NANDRAIO For orders, see W.P.(C) No.1402712009. fr.-, '-t'- AUGUST I.O, 2OI.O mm AT NEW ment R n: Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. t\ * o |NTHEH|GHcoURToFDELI.|IATNEWDE|.I.|[ Iudoment Reserved On: 29th lulv 2079, tudament Delivered On: 70tn Auoust. 2070 -{ + W.P.(c) L4o27lza0g DELH I TRANSPORT CORPORATION Through: Mrs'Avnish VCTSUS Chaudhary, MADHU BHUSHAN ANAND Through: w.P.(c) +oLlzoLo DTC ..... Petitioner Ahlwawat, Ms.Latika Advocate ..... RespondenL Ms.Kittu Bajaj, Adv' ..... Petitioner Ms. Latika ..... Respondent Mr.D.S.Kauhtae, + Through: Mrs.Avnish Ahlwawat, ChaudharY, Advocate VCTSUS SUDERSHAN LAL SHARMA Through: Ms'Rekha Aggarwal, Advs. -{ + ..... Petitioner Ahlwawat, Ms. Latika Advocate VCTSUS SURESH CHANDER "'. ResPondent Through: Mr.S.N.Sharma,Adv. -t' w.P.(c) s98/2OL0 DELHI TRANSPORT CORPORATION ... PctitiONCft Through: Mrs.Avnish Ahlwawat, Ms.Latika VETSUS Chaudhary, Advocate ZILE SINGH M r. N . L. B a reja, A;;l"toondent Through: w.P.(c) s65/2O1O DTC rhrough: Mrs.Avnish Chaudhary, W.P.(C) No.t4O27/2009 & Connected Matters Page L of 27 .a' ( ,tl -t-w.P. (C) 7s4l2oL0 D.T.C. ""' Petitioner Through: Mrs,Avnish Ahlwawat, Ms'Latika ChaudharY, Advocate VETS,US JAG SHORAN ""' ResPondent r Through: Ms'Kittu Bajaj' Adv' +- W.P.(c) 1902lzoLo D-l-C "" Petitioner Through: Mrs.Avnish Ahlwawat, Ms'Latika ChaudharY, Advocate VCTSUS SURENDER KUMAR ""' ResPondent Through: Ms.Kittu Bajaj, Adv' -! 'W.P'(C) 2274t20LA {, DF:LHI TRANSPORT CORPORATION ..... Petitioner Through: Mrs.Avnish Ahlwawat, fvls'Latika ChaudharY, Advocate VCTSLIS Sl{.GURBACHAN l-AL. & ORS. ""' Responderrt-s Through: Mr.l{.L.Bareja, Adv. ;r-W.P.(C) 39L9/20X.0 : DELHI TRAT,ISPORT CORPORA'TION ..... PCtitiONCT Throrigh: Mrs.Avnish Ahlwawai, Ms.Latika Clraudhary, Advocate, VCTSUS RAJO SAIN nla wivr.,,D- .. Respondent Tl"rrough: Ms. Kittu Bajaj, adv. W.P.(C) No.L4O2"7/2009 & Connected Matters' \< a v r-w.P.(C) 423|2ALO DELHI TRANSPORT CORPORATION """ Petitioner Through: Mrs.Avnish Ahlwaurat, Ms.Latika ChaudharY, Advocate VCTSUS SATYA PRAKASH KHURANA "" Respondent Through: Ms.Kittu Bajaj, adv' + W.P. (cl 7s6l2oLo DELHI TRANSPORT CORPORATION ..... PCtitiONCT -T-hrough: Mrs.Avnish Ahlwawat, Ms.Latika ChaudharY, Advocate VCTSUS SOM DUTT ""' ResPondent Through: Ms.DeePali GuPta, Adv. + W.P.(c) 832/20L0 DELHI TRANSPORT CORPORATION .... PCtitiONET Through: Mrs,Avnish Ahlwawat, lt/ls'Latika Cha r,rcj h a ry, Advocate VETSUS SH RAM AWAR SHARMA .''. RCSPO dCITT Througlr: Mr.S.N.Sharma,adv. -f W.P. (Cl 75212010 DEI-HI TRANSPORT CORPORATION .... PCtitiONCT Through: Mrs.Avnish Ahlwawat, Ms.Latika ' Chaudhary, Advocate VCTSUS J.L.DHUPAPR .'.'. ResPondent Througlr: Mr.Narottam VYas, . Mr.Vikramjeet Sikand, Adl's' W.P.(C) No.L4027 /2009 & Connected Matters \q +- w.P.(c) 793/20L0 DELHI TRANSPORT CORPORATION '...' PCtitiONCT Through: Mrs.Avnish Ahlwawat, Ms.Latika . ChaudharY, Advocate VCTSUS BFIAGWATI PRASAD ..... Respondent Thr"ough: Ms.Kittu Bajaj, Adv. -t--.r + W.p.(C) 1384|2OLO .... Petitioner D'T'C' Through: Mrs.Avnish Ahlwawat, Ms.Latika ' ChaudharY, Advocate VCTSUS SH.RAJENDER SINGH '... Responclent T-hrough: Mr.N.L.Bareja, Ad';' + W.P.(C) 1386/2010 DELHI RANSPORT CORPORATION ....' PCtitiONCT -l-hrough: N4rs.Avnish Ahlwawat, Ms.Latilca ChaudharY, Advocate . VCTSUS + SLI.NANU RA[4 SHARMA .."' Respondent Through: Mr.N.L.Bareja,Adv. + W.P.(c) 205L lzal$ DTC .". Petitioner -l-hrough: Mrs.Avnish Ahlwawat, Ms'Latika ChaudharY, Advocate VCTSLIS RANDI-||R SINGH .,... ResPondent .Througlr: Mr.N.L.Bareja, A.dv. i-W"P.(C) 4906l2AT$ DELHI TRANSPORT CORPORATION ... Petitiorter Througlr: Mrs.Avnish Ahlwawat, Ms.Latika ' ChaudharY, Advocate VETSLIS RAMESH CHAND jAiN ....' RespondenL -l-hrough: Mr.N.L..Barela, Adv. W.P.(C) ino.1ll027 /2009 & Cotinected Mlatters \ \J +- w.P.(c) 4689l2O!"O DEBI SINGH '..'. Petitioner Through: Ms.DeePali GuPta, Adv'.' VCTSUS DELHI TRANSPORT CORPORATION :.... Respondent Through: Mrs.Avnish Ahlwawat,,lvls'Latika Chaudharv,.Advocate +. w.P.(c) L639/2010 CHARANJIT BATRA '.." Petitioner Through: Ms.Kittu Bajaj, Adv. VCTSUS' DEL.HI TRANSPOROT CORPORATION '... Respondent Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate + W.P.(c) L729l2alo CHARAN KAMAL ...'' PCtitiONCT ThrouEh: Ms.Kittu Bajaj, adv. VCTSUS DTC ..... iesPondent Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate + W.P.(C) 3339/20L0 D.T.C. ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advclcate VCTSUS PULAK MUKHERjI ..... ResPondent . Through: Mr.Anrit Kumar, Adv. CORAM; !-toN'BLE MR. JUSTICE PRADEEF wANDRA.IOG HON',BLE MR. JUSTICE MOOL CI-IAND GARG

¶1Whether the Reporters of local papers may be allowed to see the judgment?

¶2To be referred to RePorter or not? W.lr.(C) No.t4O27 /2009 & Connected Matters ' '. \6 $ -i

¶3Whetfrer the judgnnent should be reported in the Digest? PRADEEP NANDRAIOG, I..

1." with the promulgation of the Delhi Municipal Corporation Act Ig57 arrd the Constitution of the Municipal Corporation of Delhi, ffiunicipal functions in Delhi except NDMC area and the area fallirrg under the jurisdiction of the cantonment goard' were vested in the. Municipal corporation of Delhi, which included the function of providing public transport irr the city of Delhi, As a separate wing of the Corporation, the Delhi Transport Undertaking was constituted with a separate budget and separate s[aff. As the city of Delhi,grew, it was thoi-rght advisable.to corporalize public transport in Delhi and thus the Dellri Transpcrt Corporation was formed as a body corporate and it took over the functioning of the Dellri -l-ransport Undertaking. The said Corporation had in place a Contributory ProvicJent Fund Scheme for its employees and needless to state each lnonth a fix amount was deducted fl'om tfre salary of the emprloyees ancl with a matching contrihrution by the Corpclration was creclited in the funcl and'in the accr-rr:nt of the employee, wl-lo needless to state \^/as a riiemtrer of the Contributory Provident Fu nd. The em ployees of the Corporation agltatecj for long that the pension scheme of the Gclvernrnent of lrrdia, which was extended to the mrinicipal employees be also extended to them and in respect of which claim they had petitioned the Supreme Court, when in the year L992 the Corporation gave an assurance to Lhe Supreme Court tlrat it would introdllce a pension scheme for its employees, inclr-rding the retired enrployees and pursLlant tlrereto issued office orrJer No.16 dated 27.I1.1992 notifying that a pension s;cheme stood notified which would be'operated by the Life ''rf, W.P.(C) Na.1"402712009 & Connected Matters \? .\\i Insurance Corporation of India (LlC). The office order reads as under:-"No.Adm-l-5 (4)192 Dated 27.LI.92 Sub :lntroduction of Pension Scheme in DTC as applicable to the Central Govt. Employees. The introduction of Pension Scheme for the empioyees of the DTc has been sanctioned .by the central Govt. and conveyed by the M.O.S.T. vide letter No'RT-L2OL\\2!IBB-TAG dated 23.1L92 as on the sa me pattern as for the central Govt. employees subject to the followi ng condi,tjons:-

¶1The pension scheme would be operated by the LIC on behalf of DTC

¶2The date of e'tfect of Pension Scheme would be

3.8.1981.

¶3.All the existing employees including those retired w.e.f. 3.8.1981 onwards would have the option to opt for the Pension Scheme or the Employees Contributory Provident Fund as at present, within 30 days front the date of issue of this O.O. for the implementation of the Pension Scheme as approved by the Govt. qf lndia'

¶4The Pension Scheme would be compulsory for all the new employees joining DTC w.e.f. 23.II'92, the date of sanction of the scheme.

¶5The Pension Scheme would be operated by the LIC on behalf of DTC. The employees share in the EPF A/c of the DTC employees, who opt for Pension scheme would be transferred to the Llc, for operating.

¶6The employees who have retired on or after 3'd August 1981 and the existing employees, who have drawn the employer's share, under the EPF Act, partly or wholl/.shall have to refund the same with interest in the errent of their opting for the Pensi.on Scheme. ]-he total amoUnt to be refunded by ihe reLired employees/existing employees would be the amount that would have accrued, had they not withdrawn the employer's share. ,t W.P.(C) No.t402712009 & Connected Matters PageT of 27 rK {( II a IV

¶7Excess amount of gratuity, if alleady paid to ex-employees and which is not admissible under the Pension Scheme, will have to be refunded by them betore any benefit under the Scheme, is granted.to them. B. A due ancj drawn statement would be prepared in respect of retired enrployees opting for Pension Scheme-and tlre amount to be paid/refunded, would be worked out by the concerned unit, wherefrom the employee had retired from service.

¶9lf any of the employee of DTC, who does not exercise any option withirr the prescribed period of 30 clays or quit service or dies without exercising an option or whose option is incomplete or conditional or ambiguous. l-le shall be deemed to have opted the Pension Scheme Benefits. Application forms' for exercising clption would be available with the Upit Officers and ali enrployees includirrg retired employees wishing to exercise option, should do sc rryithin the Unit of their present worl<ing/where 1'rortt they retired, witlrin a period c;f 30 clays from the date of issue of this Office order' The Un.it Officers, after receiving the option fronn the ex-enrployees, will take further necessary action for geLtirrg the necessary forrns completed, which will be supplied to them by the LIC for Pension etc. they will also ensure the recovery of EPF and Gratuity from the Ex-ernployees before forwarding their applications as n-rentioned above. The cases of all officers will be dealt witlr at l-leadquarters. Tlre options received from the existing ernployees for not opting Pension n'tay be kept in their Pet'sonal file and errtry made in their Service Bock." ' ;1. A perusal of the scheme shows that as regards the re[ired employees, they hacl to specifically opt to be paid pension arrd had to simultaneousiy refund to the Corporation, the employers' slrare received by them as n'iembers of tlre, Contributory Providerrt Fund Scheme together witlr i'nterest i, W.P.(C) No.1,4027 /2009 {i Connectecl Matters \ v ( t (vide para 6 of the Scheme). As regards tlre existing employees, it was stated vide para 4, that the pension scheme would be compulsory for those who joined service under the Corporation with effect from 23.LLI992 and as regards the existing serving employees, vide para 9, it was stated that those who rjo not submit any option would be deemed to have opted for the pension scheme. Thus, it is apparent that as regards the existing employees of the Corporation who were still in service when the office order dated 27,!1.l-992 was promulgated, if they desired to continue to be th'e members of the Contributory Provident Fund Scheme they had to specifically Say so, for the reason, their silehce was to be treated as a deemed option to opt.for the pension scheme and needless to state their positive option to opt for the pension scheme was always there.

¶3without working out the modalities with the Llc to worl< upon and implement the pension scheme and without completing the formalities of compiling the data as to who opted or who had to be treated as the deemed optee under the pensiorr scheme and who specifically opted to.continue to be a member of the Contributory Provident Fund Scheme, post haste, the Corporation notified a voluntary retirerpent scheme on 3.3.1993 contents whereof read as under:-"Sub:-Voluntary Retirement of Employees of Delhi Transport Corporation The rnatter pertaining to the iritroduction of voluntary Retirement Scheme for the employees has been under the consideration of Delhi Transport Corporation. Salient Features of the proposed voluntary Retirement Scheme are as under:-

¶1Applicability: The scheme will be applicable to all regul'ar ernployees of the corporation i.e. workers and W.P.(C) No.L4O27 /2009 & Connected Matters i executives who are appointed against regular vacancies in the corporation.

¶2Eligibility: An employee nrust have completed ten ,years of service in this corporation or completed 40 years of age to qualify for consideration under the Scheme' For this purpose, period of deputationiretention of lien in the parent office in lieu of deputation prior to absorption in the regular service of the Corporation will be excluded.

¶3Conditions covering voluntary retirement.

(a) Voluintary reLirement will be normal!y allowed only in cases of incumbents of the posts which have been declared surplus or redundant. Houlever, voluntary retirement Scheme could also be allowed in other cases depending on the merits of each case and in the interest of the corporation.

(b) 'Voiuntary retirement cannot be claimed bv any employee as a matter of right. The corporation will have the right not to grant Voluntary Retirement for reasons to be recorded in writing. Under no reasons will the relief under tlris scheme be allowed frorn a date. ear'lier than the date of passing the orders.

(c) An entployee in whose case any disciplinary case is pending will not be considered under this scheme until the disposal of the same.

¶4An employee vufto had taken voluntary retirenrent will be eligible to the following refunds/payrnents:-

(a) Balance in his PF Accourrt as per rules of provident furrd applicable to hint.

(b) Encashment of refused leave and accumulatecj earned leave as per rules of the corporation applicable to him as if l're retires under the rrorrna'l rr-rles of retirernent. \A/.P.(C) No.1,4027/2009 & Connected Matters Page IA of 27 a^

(c) Gratuity as per payment of gratuity act bnd gratuity Rules of the corporation applicable to him.

(d) Three month notice pay as is applicable in the individual case as per the terms of him/her employment.

(e) An Ex-Gratia payment equivalent to I-Il2 month's basic pay plus DA for such completed year of service limited to one month pay multiplied by the number of whose month of service left before normal datb of retirement.

(f) Expenses for travelling for the entitled class for the employee and his/her family comprising his/her spouse and depenrCent members from the place of his/her posting to the place where he/she intends to settle down in India.

(g) Pensionary benefits as per office'order No.J-6 dt.27.X"L.92. (Emphasis supplied) All amounts due to the Corporation will be adjusted against the payments ltnder (d) & (e) above and the employee concerned should clear any outstanding dues/advances taken before the date of effect of voluntary retirement. Employees worlcing on the post of Conductor in the Corporation are proposed to be covered under the Voluntary Retirement Sclreme in the first instance. Such Conductors who are desirous of seelcing voluntary retirement in the proposed Scheme rnay give their option in the prescribed Performa through proper channel within 15 da;r5 to be concerned Unit Officer who will forward the same to the Secretary, DTC Board. This issue with a uthority." the approval of competent

¶4Needless to state, the VRS Scheme clearly notified that those who opt for voluntary retirement would be entitled to pension as pel the office order No.16 dated 27.11-.1992 (vide para a(g) of the VRS Scheme). Page 1.1. of 27 a, W.P.(C) No.1"4027/2009 & Connected Matters lr I

¶5Soon thereafter vide office memorandum dated

16.3.1993 the VRS Scheme notified on 3.3.1993 was made open, for offers to be submitted hry all employees of the Corporation. The officer memorandum dated 16.3.1993 reads as utrder:- "Now, it has been decided to correr all the employees of the Corporatiorr under the proposed Voluntary Retirement Scheme. Such employees who are desirous of seeking voluntary retirement in the proposed scheme rnay give their option in the prescribed proforma through proper channel within 15 days to the cQncerned unit officers, who will.forward . the same to the SecretarY, DTC Board "

¶6When DTC notified the pension scheme on ?7 .IL.Igg2, the respondents of W.P.(C) Nos. \4027 n0A9: 40u2010, 565/2010, 598/2010, 754120L0, 1902/2010, 22741?.010 (3 in number) and 391912010 specifically opted for tl-re pension scherne. The respondents of W'P'(C) Nos.423 |TOLO, 7561?010, 83217-0l-0, 752l2OlO, 7931201'0, 13841207A, 1386/2010 and 2051/2010 did not submit any cptions and hence were to be treated as deemed optees for pension. '

¶7lt may be noted that the writ petitioners of \A/.P.(C) Nos.L639l2010 and -1.7291201.0 also did not submit anv options and hence would be deerned to hre optees for pension. B. lt may also be noted that the respondent of W.P.(C) No.4906120L0 and the writ petitioner of W.P.(C) No.468912070 submitted their options expressly stating that they do not opt for the pension scheme, mqaning thereby, they indicated pcsitively that they would lil<e to continue to be members of the Contributory Provident Fund Scheme.

¶9On differerit dates, but all in the year 1993 the responc.lents of ali' the writ petidions except W.P'(C) No.1639 2AJ.A, W.P.(C) No.1729 120t0 anci W.P,(C) w.p.(C) No.1.4027 /2009 & Connected N4atters Page Lv of 27 I a ,ryil { No.3339 l20LO and the writ petitioner of W.P.(C) No'4689120l-0 submitted offers under the VRS Scheme afore-noted and requested to.be relieved from service. :

¶10lt is thus apparent that if request for voluntary retirement was accepied, the said respondents and the writ petitioner of W.P.(C) No.468912010, would or .would not be entitled to pension would depend upon whether they or anyone of them had specifically opted to continue under the Contributory Provident Fund Scheme, We say so for the reason, pertaining to the existing employees,. the pension scheme notified on 27.LI.1-992 clearly stated that those who specifically opted for the pension scheme and those who submitted no option whatsoever would.be treated as opting for the pension scheme and only those who specifically opted to continue to be_ members of the Contributory Provident Fund Scheme would not be treated as optees under the pension scheme and would continue to be retained as members of the Contributory Provident Fund Scheme. Thus, it is apparent that the respondent of W.P.(C) I1. No.4906120L0 and the writ petitioner of W.P.(C) N9.468912010, harring exercised a positive option to continue to be retained as members under the Contributory Provident Fund Sclreme, could under no circumstance claim beneFit under the pension scheme.

¶12ln the year 1994, by and under a notification dated

5.72.1994., all employees of the Corporation except Officers, Traffic Supervisors, Tls, ATls, Vehicle Examiners ancl Drivers, were given another chance to opt for Voluntary Retirement by submitting letters of offer. The scheme notified statecl that all terms as per the VRS Scheme dated 3.3.1993 would apply. But, the said notification expressly stipulated the following condition:- W.P.(C) No.1,4027 /2009 & Connected Matters Page L3 of 27 "B ,f, t " lt is also notified for infonmation of all such en'lployees who opt for VR,S that they woll[d not be entitled to join Fension Scheme if they are allowed retirernent under VRS. Other salient features of the proposed VRS will remain the same as announced earlier vide this office circular dated

03.03.1993." (Emphasis added) 1:1" On 23.I2.Igg4 another circular was issued extending the right to make offer by all the empioyees pertaining to the VRS Scheme notified on 5.1.2.1994. Thereafter on 8.5.1995, to a specified category of employees stipulatecl in the scheme were given the option to submit offers under the Voluntary Retirement Scheme. But there was an express condition therein that these employees would not be entitled to join the pension scheme. The writ petitic;ners of W.P.(C) Nos.763912010 and trl LI L4. 1,5. I'729120LA, who were deemed optees under the pension scherne, having exercised no option at all pursuant to.the notification date d 27.11.1992, submitted offer to. be volttntarily retired on 4.1.1995 and 1.7.10.1995. -fo pr-rt it in a nut-shell, all employees who are litigating under the various petitions either as the petitioner or as the respondents, except the two petitionqrs of W.P.(C) Nos.1639/2010 and 1779f2}l-0, submitted offer letters to be voluntarily retired.under the VRS Scheme notified on 3.3.1993, which contained the ternrs of the scheme and as exterrded from time to time in the year 1993.

¶16As regards W.P.(C) No.3339120l-0, the respondent thereof had retired on 10.7.1991 i.e, before the notification clateci 2-7.7.7..1-992 was issued and as regards him, vide para 6, if he did not specificallv opt for the pension scheme within 30 days of Lhe notification datecl 27.11.1992 he would have got no benefit under the pensir:n scheme for the rea$on on his W.P.(C) No.3,4027 /2009 & Connected N4atters Page t4 of 27 ,t A retirement he was paid over the dud i.e' the amount to his credit ulnder the Contr;ibutory Provident Fund Scheme' Had he exercised such an option he was obliged to have refunded the management'S contribution credited to his account under the Contributory Provident Fund Scheme' L7. Thus, we can conveniently segregate the litigating parties in three compaftments. Those who exercised option for voluntary retirement in 1993. Those who exercised option for voluntary retirement in the year 1995. Lastly the respondent of W.P.(C) No.3339 l20l1} whose case ha's to be dealt with de-hors the Voluntary Retirement Schemes'

¶18we deal with the grievance of , the corporation pertainir\g to W.P.(C) No.333912OLO, the respondent whereof lras got benefit from.the central AdministraLive Tribunal, i' where vide order dated 15.1..2010'his claim has been allowed by hotding that he is a deemed optee for pension as per the pension scheme notified on 27 .LL.Ii72 No discernable reasons are fdrthcoming from the q

¶19decision of the T'ribunal save and except that the Tribunal has treated his entitlement in terms of clause 9 of the perrsion scheme dated 21 J-l.1992, ignoring the fact that clause 9 rt applied to the serving employees of DTC atrcl ih respect of those who hacl retired prior to the promulgation of the notification dated 27.]1.1992, were required to exercise a positive option to be given pension with concomitant act of refunding the management's share received by them under theContributoryrProvidentFundScheme,videpara6ofthe notification clated 27.11.1992. Indeed,.this has been"so lreld by a Division Bench of this Court in the decision dated

16.3.2000 in LPA No.33/1998 DIS lS'-Sn-EatinelLBhSrqav & Ors. which decision ttas.been upheld by the Supreme Ct:urt in W.P.(C) No.Ia027/2009 & Connected Matters Page L5 of 2i 1, { the decision reported as (2001) 6 SCC 61 DTC Retired

¶20Thus, as regards W,P.(C) No.333912010 is concerned, noting that the respondent therdin could not be treal-ecJ as a deemed optee tor the pension scheme and having not specifically opted for the pension scheme and having' received all dues payable to him when he retired as pef the amount lyirrg to his credit as a member of the Contributory Provident Fund Scheme and obviously he having not opted for the pension scherne and thus not having returned the managernent's contribution pertaining to him and As credited in his account as a.member of the Corrtributory Provident Fund Scheme, said respondenL wouid have no case at all'

21.. Thus, W.P.(C) No.333912010 is allowed' lmpugned judgment and order dated 15.1.2010 allowing TA t\Io.1209 l2OO9 is set aside and TA No,1209/2009 is dismissed.'

¶22We take up the case of the petitioners of W'P'(C) Nos.1639i2010 and 172912010, who were in service as on

27.1-1.1992 and did not surbmit any option under the notificaLion dated 27.1.1.1992 and hence vide clause 9 thereof would be treated as deemecl optees for the pension scheme. As is noted hereinabove, these two respondents If ?3. applied to ile volunl-arily reLired by submitting offers on

4.1.1995 and 17.10.1995 respectively. lt is further to 6e noted that by then the voluntary retirenrent schemes notified earlier had lapsed and they could seek voluntary retirernent as per the scherne notified on 23.I2.Lgg4 and 8.5.1995 respectively i.e. tlre VRS Schemes notified prior to the dates 4,1.1995 and

17.I0.1995. As is noted irereinabove both ,schemes under wl^rich the5r applied specifica!ly excludecl entitlement for pension inasmuch aS the tvvo schemes clearly stated that employees opting for voluntary retiretnent under the two .Vs.DTC&O W.P.(C) No.I4O?-7 /2009 & ConnecteC Matters ijage 16 of 27 I schemes would not be entitled to pension; and as regards the other terms and conditions it was mentioned that the same would be as per the scheme notified on 3,3.1993.

¶24It is apparent that the terms of the VRS Scheme notified on 3.3.1993 are incorporated by reference under the VRS Schemes notified on 23.72.1994 and 8.5.1995 except clause 4(g), for the reason in the two VRS Schemes in question, there is a specific reference to not being entitled to pension. We may re-note the conditions/terms of the said two schemes with reference to the language which expressly stated that it was notified for information of the employees tlrat all those who opt for VRS under the two schemes would not be entitled to join the pension scheme if they are allowed to retire under the said schemes and that other salient features of the scheme would be the same as per the office circular dated 3.3.1993.

¶25It may be noted that the pension s'cheme notified an 27.II.Lgg2 could not be implemented because LIC backed' out and it was only on 31.10.1.995 did the Central Government provide the necessary fund and only those employees who retired after 1.11.1995 started receiving pension. In other words whether or not pension would have been paid remained inchoate till 31.10.1995

¶26Having retired pursuant to the VRS Schemes rrotified on 5 .l2.Igg4 and 8.5.1995, w€ see no scope for the petitioners of W.P.(C) Nos.1639/2010 and !72912410 to be entitled to receive any peirsion and we hold that the Tribunal has correctly dismissed their claim petitions. To be fair to the said writ petitioners, we may note tlrat tlre only submission urrged by their counsel was that the orders relieving them and enclosing the amount lying to tlreir credit in the Contributdry Provident Fund Scheme referred to

¶27W.P.(C) No.1,402712009 & Connected N/latters Page 77 of 2J ,af / I the fact that they were being retired as per the VRS Scheme I dated3'3.lgg3andaSextendedtoalltheemployeeson 16,3.1993. Predicated thereon was the submission that these employees have been treated as having voluntarily retired under the VRs scheme notified on 3'3.1993 which stated that pension would be Paid'

28.Sufficewou|ditbetostatethatabareperusalof the orders referrerj to by learned counsel' evidence that a printedproformahasbeenused'TheSamepertainedtothe earlier vRS sclremes. lt is settled law that rights are determinecj not r,vith reference to the language of the proforma but the statute or the scheme applicable. The said two petitioners submittecl offers to be-voluntarily retired under the schemesnotifiec|on5.I2.Lggland8.12.1995'Further,they receivecJ the cheques tenderecl to tlrem which included tlre rnanagement's share in the Contributory Provident Fund Accoutrt. -t'hese cheques were received by them on 31"3'1995 and 31'10'1,995 respectively' They encashed the cheques, We may note tlrat these two petitioners had filed writ petitions intheyear'2005anc2ooTrespectivelylayingactaimfor pension whicfr were transferred to Lhe central Adminlstrdtive Tritrunal and registered as TA No.6B9/2009 'and TA ' No.l3B5.izaogrespectively,whichhavekleenclisnrissedbythe Tribunal vicle implrgned or<Jer dated 23'9.2009' The claim of these writ petitioners wortlcl everl otherwise be barred by the law of limitation. The principle that right to recei're pension is a continuous cause of action is not availabl,e to them inasmuch as qua .thei'n, [fre issue wes whetlrer they were en'tltled to receive clues as per Contributory Provident Firrrd SClreme or uncler the pension scheme, They were paid full dues wheri they retirecj on 31..3.1995 arrd 31.10.1995 respec'tively as rer the contributory Provident Fund scheme and if the:r iiad any lV.p,(C) Nr:.A027 !2009 & Ccnnecled M;ltters Page 18 uf 27 t, I A rt I.\ grievance pertaining to the same, it had to be brought before a Competent Court within at most 3 years thereafter.

¶29Thus, W.P.(C) Nos.1639/2010 and 772912010 are dismissed.

¶30Pertaining to the remaining 18 writ petitions, we may divide the same into 3 further categories which emerge from the facts noted by us in para 6 and B aborle. The said 18 writ petitions are divided: Category 1-Respondents of W.P.(C) Nos.1402712009, 40112010, 565/2010, 59812010, 75412010, I902120t0, 227 412010 and 391912010 who specifically opted for the pension schemes when they submitted their offer for being voluntarily ' retired as per the terms and conditions notified in the VRS Scheme notified on 3.3.1993 which was made applicable by reference to the subsequent schemes notified in the year 1993. Category 2-Resporrdents of W.P.(C) Nos.423 12070, 756120l-0, 832120l-0, 752120l-0, 79312010, I3B4120IO, 1386/2010 and 2051/2010 wlro having not submitted any options have to be treated as deemed optees for the pension scheme when they submitted their offer for being voluntarily retired as per the terms and conditions notified in the VRS Scheme notified on 3.3.1993 which was made applicable by reference to the subsequent schemes notified in tlre year 1993. CaLegory 3-Respondents of W.P.(C) No;490612010 and the writ petitioner of W.P.(C) No.4689l20I0 who specifically opted to be retained in the Contributory Provident Fund Scheme i

¶31We take category 3 first. Surprisingly, one claimant being the respondent of W.P.(C) No.49061201-0 has succeeded before the Tribunal and the other i.e. the petitioner of W.P.(C) No.468912010, has lost, notv,rithstanding their cases being identical. W.tr.(C) No.t4O27 /2009 & Connected Matters Page !9 of 27

¶32Having perused the reasons given by the Tribunal in a, favour of the respondent of W.P.(C) f\o.490612010 as per para

¶22of the impugned order dated L3.4.2010, suffice would it be io state that the Tribunal has gone off at a complete tangent by referring to some policy cjecisions dated 30.4.1993 and

7.5.1993 which refer to those who'have given no option whatsoever to be treated aS optees under the pension scheme. We fail to uttderstand as to how said decisions can apply to the respondent of W.P.(C) No'490612010 who specifically opted to be retained as a member under the Corrtributory Provident Fund Scheme. Noting further tlrat said respondent received the full amount payable to hirn. as a rnember of the Contributory Provident Fund Scheme which included the managemerlt's contribution in the fund pertaining to lris account, it would be another reason to hold against him and lastly tlrat having retired in the year 1993 and received full dues in tlre sarne year he could not rake up the issue when he filetl OA No.2053 l?-0}g in the year 2009 before the Trib.unal. We concur with the reasoning given by the Tribunal pertaining to the writ petitioner clf Vr/.P.(C) No.46B91201-0 when OA No.237 L12009 filed by him was dismissed vide order dated

18.2.2010. 3:1. Tlrus, W.P.(C) No.a 689/2010 is dismissed.

¶34W.P.(C) No.4906l20Llnis allowed. Tl're impugned crrder clated 13.4.2010 allowing Ol\ No.2053l2AAg is set aside and OA No.2053i2009 is dismissed.

¶35Tl-re claim of the respottdents in category 1 and category 2 may be tal<en up together for the reason whethei" tlrey exercised a positive opiicln to be brought urrder the pension scl'reme or having exercised no optiorr wliatsoever and lielrce as deenred optees being brouglrt under the pension scherne, their status would i:e the Same as en'titled Io be { W. P.(C) No.'1.a02'7 12.009 & Connected l\4atters F age ?-0 crf 27 -\ ^{ { brought under the pension scheme under the notification dated 27.LL.Iggz. Since all these responderits applied for being voluntarily retired when the scheme notified on 3.3'1993 was extended from time to time in the year 1993, they certainly would be entitled tcl pension for the i'eason clause 4(g) of the scheme notified o'n 3.3.1993 clearly stated that such persons would be entitled to pensionary benefits' But, there are certain further facts which need to be noted qua them. The case of the corporation is that having opted under the pension scheme or deemed to have opted under the pension scheme, the said respondents;specifically opted out from the pension scheme and by'the time they retired under the Voluntary Retirernent Scheme, the pension scheme had not been formally brought into effect (as noted ebove it was formally brought into effect for the retirees who retired post

1.11.1995), they filed applications specifically stating that they intend to opt out of the pension scheme and be retained as nrembers under tlre contributory Provident Fund scheme and thus on accepting their offers to be voluntarily reti;ed the Corporation paid over to them not only their share in the Contributory Provident Fund Account but even the management'S Share, wlrich they accepted withoLrt demur and hence coul<J not rake up the issue after 12 to 15 years i.e' when they filed either writ petitions irr this court which were transferred to the Central Administratirre Tribunal or" filed original Applications before the Central Administrative Tribunal.

¶36Qua these respondents, it may be noted that the respondent of w.P.(c) No.L402712009 submi[ted a letter dated

2.3.1995 specifically stating that he does not want to opt for the pension scheme ancJ desires his dues to be paid as per his cpF Account. The respondent of w.P.(c) No.5651201.0 likewise W.P.(C) No.I4O27 /2009 & Connected Matters N submitted a letter on I2.7.1995. The respondent of W'P'(C) No.59B/2010 likewise submitted a letter in the year 1994 and reaffirmed the said fact in the letter dated 5.11'1998' The'' respondent of w.P.(C) No.754l?.070 likewise submitted a letter on 20.4.1995. . Jh" responclent of w.P.(c) No.190212010 liicewise submitted a letter on 14.7.1995. The 3 respondents of W.P.(C) No.227 AlzAI$ likewise submitted letters on

11..3 :l9g4, 15.3.1994 and 9.6.1995 respectively, The respondent of W.P.(C) No.3919 l2}l0 likewise submitted a. letter on 22.7.1996. -l-he respondent c'f w.P.(c) No.42312010 likewise submitted a letter on 5.10.1994. The respondent of W.P.(C) N o.756120l-0 likewise submitted a letter on 15'3'L994 as claimed by tlre DTC but denied. by said respondent' \A/e note that DTC has prociuced sairl letter ancl adcli'Eionally has reliecl upon a list prepared on l2'4'L994 where the -name of saicl responclent is at serial No.1.1: anci notes his opting out for perrsion. ine responCent of W.P.(C) . No.B32l20l0 likewise submitted a letter on 5.9.1995. The. respondent of \tV'P'(C) No.7 5212010 likewise submitted a letter on I '12'1993. The respondent of W.P.(C) trlo.40U2OTA also opted out of the pension scherne, though tlre date when he did So is not on record. It may be noted that ail aforesaid respondents t'l t-\

¶37except'the resportdent of W.P.(C) No.756P.A10, who clainrs not to have written letter derted 15.3.L994, and the respondent of W.P.iC) No .40112010 who is silent on the aspect of his having opted out i.e. has chosen not to rebut the plea of the Corpclration that he opteci out of the pension Scherner, have prleacied that they wrote the letters out nf compulsion because it was uncertain whetlrer at all the pension scheme would be introcluced and there was complete uncertain[y rruhethet-at all W.P (C) No.|ttlo2'l/2009 & Connected Matters Page 22 c{ 27 (1_ g/ 'fl' I\9 the pension scheme would be introduced and if yes, from which date.

¶38Qua the stand taken by the respondent of W'P.(C) No.756/2010, suffice would it be to state that DTC has produced the letter written by him under his signatures. lt is a handwritten letter. He has not denied that the writing is not his. He has not denied his signatures thereon' His vague denial that he never wrote the letter, without taking specific stand is neither here nor there. Further, ut ,1,u would be noticing qua the other respondents he received the CPF dues when he retired with effect from 31.5.1993 and thereafter received the CPF dues and kept quiet till he filed a writ petition in this Court in the year 2008 which was transferred to the Central Administrative Tribunal in the year 2009 and was reg iste red a s TA N o. 144912009 .

¶39Proceeding fr-rrther, we note that the pleadings qua when the respondents of W.P.(C) Nos. 7931201-0, 1-3841201-0, 1386/2010 and W.P.(C) No.205Il20L0 submitted applications to opt out of the pension schemes are not clear, but it is not in dispute and it is the joint case of the Corporation as well as said respondents that they i.e, the respondents of the said writ petitions subsequently opted out of the pension scheme and received all dues under the CPF Scheme. They ilso ctaim that tlrey did so because it was not certain as to whether at all pension scheme would be brought into force when they volt-rntarily retired in the year 1993.

¶40In a nut-shell all these respondents plead that they were under compulsion to opt out of the pension scheme after they had submitted their offer to be Voluntarily retired and after the same was accepted and they stood retired; compulsion being the unceftainty of pension being paid and their pressing need for funds. The legal argument advanced { I W.P.(C) No.IaO27/2009 & Connected Matters { ,# \ ) by them is that once their offer for being compulsorily retired was accepted, th.e contract stood concluded by the acceptance of the offer and the terms of the contract was as contained in the VRS Scheme notifiecl on 3.3.1993, which specifically stated tlrat such retirees would be entitled to pension' They claim that later on, the conti'act could.not.be modified and thus their subsequent letters to opt out of the pension scheme and revert back to the cPF scheme could not be accepted. The argument of the said respondents has to be

41.. I I noted and rejected for the reason nothing prevented the parties to novate the contract. lt is settled by now that a VRS Scheme has an element of contract. The VRS Scheme is an invitation to offer. The employees make an offer under the scheme being, to retire on the terms notified as per the scheme. On being accepted, the letter of offer results in the contract being concluded and the ernployees become entitled to the clues as per the VRS Scheme. But, nothing prevents the parties to novate the contraci. tn the instant case the contract got novated when the said respondents wrote that instead of being paid pension as per the scheme they be paid thd due.s as per the CPF Scheme and thereafter they received even the management's share under the. CPF Scheme. lt is settled law that one manner of accepting an offer is to perform the obligation to be performed as per the offer. Thus, by rnaking payment under the CPF Scheme the Corporation accepted the offer of these employees to forego claim for pension and instead entire due under the CPF Scheme be paid.

¶42There remains then the issue to be decided whether the said respondents were under a compulsion and if yes the affect thereof.

¶43The compulsion alleged by them.is the uncertainiy of pension being relea5ed. As noted hereinabove the pension \4/.P.(C) Noj"402712009 & Connected Matters ( 0)q \i scheme notified on 27.1L1992 could not take off because LIC did not fund the scheme.as envisaged and later on the Central Government agreed to fund the scheme on 31'10.1995 and indisputably those who retired after 1.11.1995 were paid pension. Thus, the compulsion resulting as the consequence of the uncertainty of pension being released, which may have been uncertain when the said respondents opted out to receive pension and reverted to receive benefit under CPF, came to an end on 1.11.1995. The silence of these respondents for periods ranging from L2 to 15 years when they tool< recourse to legal action is clearly indicative of there being no compulsion. The silence of these respondents speaks for itself. lt is apparent that with the passage of time these respondents became clever by a dozen and thought why not tal<e the benefit of a few who likewise went to Court and obtained relief, by pulling wool over the eyes of the Court by pleading that their act of subsequently opting out of the pension scheme was meanifgless because the contract stood concluded,' a submission which was accepted by the Courts without considering the further issue of contract being novated In our opinion these respondents have no claim

¶44whatsoever to receive pension. They novated the contract by volition when they subsequently opted out of the pension, scheme and DTC accepted the same and paid to them even the management's sh.are in the CPF accourlt. Their claints are hit by delay, laches and limitation. They are not entitled to plead that right to receive pension is a continuous cause of , action, for the reason, in law either pension can be received or benefit under the CPF account. lf the rnanagement forces down the gullet of an employee payment under the CPF. Scheme and the employee desires pension he has to approach W.P.(C) No.L4O27 /2009 & Connected Matters st ,.!, \ )", the Court or the Tribunai within a maximum period of 3 years being tlre limitation prescribed to file a suit.

¶45That apart, if it was the case of the respondents that they were compelled to opt out..of pension scheme on accourrt o'l' the uncertainty in the implementation of the pension scheme, they ought to have sought a declaration that their act of opting out of the pension scheme be declared null and void, being out of compulsion and for said prayer they ought to have made the requisite pleadings entitling them for such a declaration. Needless to state an act out of compulsion is a voidable act and not a void act. The respondents have-admittedly not done so. lt is only in the rejoinder filed by them to the reply to their respective OA that a bald plea has been set forth that they acted out of compulsion when they opted out of the pension scheme.

¶46Accordingly, we hold that the said writ petitions have to be allowed. 47 . we allow w.P.(c) Nos.14027 12009, 40lJ2010, 565/2010, 59812010, 754120L0, 190212010, 227 4120l-0 3919i201-0, 423120i0, 756120]-0, 832120]-0, 752120]-0, 79312010, 1.384120l-0, f3B6/2010 and 2051/2010 and set asicle the impugned orciers dated 30.6.2009,3.8.2009,

3.9.2009, 23.9.2009, 25.9,2009, 8,10.2009, 13.10.2009,

4.IL 2009 and 26.11.2009 i.e. the singular or composite orders disposing of one or more Transferred Application or" Original Application before the Tribunal and as a consequence dismiss all the Transferred Applications or Original Applicatiotrs allowed in favour of the respective respondent(s)

¶48To summarize tlre 21 writ petitions stand disposed of as under:- A. W.P.(C) No.1639 l2OL0, W.P.(C) No.1729 12010 and V'i.P.(C) f,1o.468912010 are clismissed. w. P. (c) Nc;.t+ozl i z0o9 & co n n ectecj M att€' rs t CT I/r B.W.P.(C)No.14027l2OOg,W'P'(C)No'407120L0' W.P'(C)No.565/2010,W.P.(C)No.598/2010,W.P'(C) No.75412010, W.P.(q) No.1902 I2OLO, W'P'(C) No '227 4120l-0 W'P.(C) No.39 :-:g|2oLO, W.P.(C) No.423|2010,. W.P.(C) No.756/2010, W.P'(C) No.B32l2010, W'P'(C) No'75212010' W'P.(C) No.793/2010, W.P.(C) No.1384 |2010, W'P'(C) No.13B6 ]}OLO, w.P.(c) No.205l,l20lo, w.P.(C) No.4906 120L0 andW.P.(C)No.333gl20I0areallowedandtheimpugned orders passed by the central Administrative Tribunal which are challenged in the'said writ petitions are set aside and the respective Transferred Petition or Original Application are dismissed.

¶49There shall be no orders as to costs' --,-.A:d+*t t\ n (PRADEEP wANDR,AJOG) JUDGE t AUGUST I.O, 2OI.O mm Page27 of27 GAR,G) JUDGE W.P.(C) No.1.4027 /2009 & Connected Matters