D.T.C v. Sh.Rajender Singh

* % IN THE HIGH COURT OF DELHI AT NEW DELHI J l: w.P.(c) 1384|?OLO D.T.C. ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VETSUS SH.RAJENDER SINGH ..... Respondent Through: Mr.N,L.Bareja,Adv. CORAM: HON'BLE MR. JUSTTCE PRADEEP NANDRAJOG HON'BLE MR. JUSTTCE MOOL CHAND GARG

¶1Whether the Repofters 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? For orders, see W.P.(C) No.L402712009. I udq ment Reserved O n :'LT^itutq-, 2070 t ) _n;-s--ic{UU (PRADEEP NANDRAJOG) JUDGE I AUGUST LO, mm 20r.o F^* N/. lt Ct\ h/D. 3 sl f tt ul" JvR r lvorrlrr f tuf 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< % IN TI.IE HNCM COURT OF DELHI AT NEW DELI.II tudoment Reserved On: 29th lulv 2070 ludoment Delivered On: 70th Auoust. 2070 + w.P.(c) L4O27l2OO9 DELHI TRANSPORT CORPORATION Through: Mrs.Avnish ..... Petitioner Ahlwawat, Ms.Latika Advocate . VCTSUS ' MADHU BHUSHAN ANAND Through: w.P.(c) 401/2O1O DTC ..... Respondent Ms.Kittu Bajaj, Adv. ..... Petitioner Ms. Latika ..,.. Respondent Mr.D.S.Kauntae, Chaudhary, ?, + Through: Mrs.AvnishAhlwawat, Chaudhary, Advocate VCTSUS SUDERSHAN LAL SHARMA Through: Ms.Rekha Aggarwal, Advs. + w.P.(c) 565/2OLO DTC Through: VCTSUS ZILE SINGH t-,Inrougn: ..... Petitioner Mrs.Avnish Ahlwawat, Ms. Latika Chaudhary, Advocate M r.N. L.Bareja, O;;l"toondent i+ + SURESH CHANDER' ..... ResPondent Through: Mr.S.N.Sharma,Adv. w.p.(c) 598/20L0 DELHI TRANSPORT CORPORATION ..... Petitioner ' Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VETSUS W.P.(C) No.L4O27/2009 & Connected Matters Page t of 27 -T-w.P.(c) 754l2OLs D.T.C., Through: VETSUS JAG SHORAN Through: + W.P.(c) 1-902lz0Lo DTC SURENDER KUMi\R Through: Mrs Avnish Ahi;;;:llt'flilll-,, o, Chaudhary, Advocate Ms. Kittu Bajaj, ;iL"toondent wr rs.Rvn is n oni,,?uull:|,' i,i' Lati ka Chaudhary, Advocate .... ResPondent Ms.Kittu Bajaj, Adv. -, . Through: VCTSUS . r /.P.(C) 227 4;:2OLA DELH I TRAN SPORT CORPORATION Thi'ough: Mrs.Avnisit ..... Petitioner Ahlwawat, lvls.Latika Advocate VCTSL}S Chaudhary, sH'GURBA.HAN +hr:';fr: Mr.rrr r-sareja;'A"io""denLs + W.P.(C) 39L9/20LO DELH I TRAN SPOF.T C-JORPORA-|ION ..... Petitioner Throtigh: Mrs,Avnish Ahlwawat, Ms.Latika Clraudhary, Advocate VCTSUS RAJO SAINI . Tl"rrough: .. ResPondetri Ms, Kittr.r Bajaj, adv. W.p.(C) No.L402.712009 & Connected Matters Page 2 ol 77 @ + w.P. (c) 4231.20L0 DELHI I-RANSPORT CORPORATION ..... Petitioner . Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VETSUS SATYA PRAKASH KHURANA ..... Respondent Through: Ms.Kittu Bajaj, adv. - + W. P. (c) 7s6/2olo ? DELHI TRANSPORT CORPORATION '.... PCtitiONCT Through: Mrs.Afnish Ahlwawat, Ms'Latika Chaudha;Y, Advocate VCTSUS SOM DUTT .... ResPondent Through: Ms.DeePali GuPta, Adv' + W.P, tcl 832|2OLO f DELHI I'RANSPORT CORPORATION Petitioner Through:. Mrs.Avnish Ahlwawat, lvls'Latika Chaucihary, Advocate VETSUS ' SH RAM AWAR SHARMA .'.. Respondetrt Througlr: Mr.S.N.Sharma,adv. + W.P. (cl 75212010 DELHI TRANSPORT CORPORATION '.... PEtitiONCT Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VCTSUS j.L.DHUPAPR .'.': Respondent rhroush Mi U'il'?Ti'T", ,'ound, Ad',,slva'' W.e.(C) No.1.40271)009 & Connected Matters w. P. (c) 793t2O10 .DELHI TRANSPORT CORPORATION ..... Petitioner , Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VCTSUS BHAGWATI PRASAD .... ResPondent . T'hrough: Ms.Kittu Bajaj, Adv, + w.P.(c) L384|ZOLO D.T.C. ..... Petitioner \ Through: Mrs.Avnish Ahlwawat, Ms.Latika Clraudhary, Advocate , VCTSUS . SH.RAJENDER SINGH ,,.. Responclent T'hrough: Mr.N.L.Bareja, Ad',r. + w.P.(c) L386/20LO DELHI 'fRANSPCRT CORPORATION ..'.' Petitioner Through: Mrs.Avnish Alrlwawat, Ms.Latika . ChaudharY, Advocate VCTSiJS SFI.NANU RA[4 SHARMA ..... Respondent Through: Mr.N.L.Bareja,Adv. + w.p.(c) zosL lzaL$ DTC ..... Petitioner ' ; [hror.rqh: Mrs'Avnish Ahlwawat, Ms'Latika Chaudhary, Advccate VETSUS RANDHIR SINGH "" ResPondent Through:' Mr.N.L.Bareja, A.dv. , + w"P.(c) 4906 ?AT{I DELHI TRANSPORT CORPORATION ..'. Petitiotter , Through: tt4rs.Avnish Ahlwawat, Ms'Latika ChaudharY, Advocate versuS RAMESH CHAI{D jAiN ....' Respondent 'l-hrough: Mr.N.L..Bareja, Adrr. W.P.(C) ina.1.4OZ7 /7otl9 & CotinecteC lVlatters + w.P.(c) 4689 lzOLO DEBI SINGH Through: DELHI 'w.P.(c) L72e /201-a .HARAN KAMAL rhrouqh: VCTSUS . TRANSPORT CORPORATION Ms Deepari C;pl;tt:T"' Ms.Kirtu Baj;j, 'f etitioner + w.P.(c) r.639 lzALO CIiARANJIT BATRA Through: VETSUS DELH I TRAN SPOROT CORPORATION ..... Respondent Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate Through: Mrs.Avnish Ahlwawat, Ms,Latika Chaudhary, Advocate ..... Petitioner Ms.Kittu Bajaj, Adv. VETSUS DTC ..... ResPoncient Through: Mrs.Avnish Alrlwawat, Ms.Latika Chaudhary, Advocate + W.P.(C) 3339/20L0 D.T.C. rhroush: Mrs Avnish ili'i:ilHtil Latika Chaudhary, Advocate VCTSUS PULAK MUKHERjI "..' ResPondent . Through: Mr.Anrit Kumar, Adv. CORAM: i-{oN'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR.JUSTICE MOOL CHAND GARG

¶1Whether the Reporters of local papers may be allgwed to see the judgment? '2. To be referred to Reporter or not? W.P.(C) No.t4O27/2009 & Connected Matters

¶3Whetfrer the judgn'ient should be reported in the Digest? PRADEEP NAIVDRAIOG, I. L" With the promulgation of the Delhi Municipal Corporation Act 1957 artd the Constitution of the Municipal Corporation of Delhi, municipal tunctions in Delhi except NDMC area and t,hu area falling under the jurisdiction of the Cantonment Board were vested, in the Municipal Corporation of Delhi, which included the function of providing public transport in the city of Delhi. As a separate wing of the Corporation, the Delhi Transport Undertaking was constituted with a separate budget and separate staff. As the city of Delhi grew, it was thought advisable to corpo ralize public transport in Delhi arrd thi,rs the Dellri Transpcrt Corporation was formed as a body corporate and it'took over ihe 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 tnonth a fix amount was deducted from tl-re sdlary of the employ,ees and with a matching contribution by the Corpclration was credited in the fund and in the accttunt of the employee, who needless to state was a nlernber of the Contributory Provident Fund. The enrployees of the Corporation agitatecj for long that the pension sclreme of the: Governnirent of lrrdia, vuhich was exterrded to the municipal enrployees be also extended to them and in respect of which claim they had petitioned the Supreme Court, when in the year 7gg2 the Corporation gave an assurance to the Supreme Court that it would introduce a pension scheme for its employees, including the retired enrployees and pursLlant tlrereto issued office order No.16 rJated 27.lr1.1992 notifying that a pension scheme stood noiified.which would be operated b)' the Life W.P.(C) No'.1,402712009 & Connected Matters Insurance Corporation of India (LlC). The office order reads as under:-"No.Adm-l-5 (4)192 Dated 27,IL92 Sub :lntroduction of Pension Scheme in DTC as applicabl'e to the Central Govt. Employees. The introduction of Pension Scheme for the empioyees of the DTC has kieen sanctioned by the Central Govt. and conveyed by the M.O.S,T. vide letter No.RT-I20I9121/BB-TAG ' dated 23.IL92 as on the sa me pattern as for the Central Govt. employees subject to the following conditions:-

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

¶2The date.of effect of Pension Scheme would be

3.8.1981.

¶3All the existing employees including those retired w.e.f. 3.8.1981 onwarcls would have the option to'opt for the Pension Scheme or the Employees Conti'ibutor5r Provident Fund as at present, within 30 days from the date of issue of this O.O. for the implementation of the Pension Scheme as approved by the Govt' of India.

¶4The Pension Scheme would be compulsory for all the new employees joining DTC w.e.f.23.I1.92, the date of sanction of the scheme. ,5. The Pension Scheme would be operated by the LIC on behalf o'f 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 wholly shall have to refund the same with interest in the event of their opting for the Pension Scheme. -rhe total amoUnt to be refunded by the retired employees/existing employees would be the amount that would have 5ccrued, had they not withdrawn the employer's share. w.p.(c) No.1402712009 8t connected Matters PageT of27

¶7Excess amount of gratuity, if already paid to ex-employees and which is not admissible under the Pension Scheme, will harre to be refunded by them be'Fore any benefit under the Scheme, is granted to tl'rem

¶8t n 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 or-rt by'the concerned unit, wherefrom the employee had retired fi'om service.

¶9lf dflyr of thet ernployee of DTC, who does not exercise anv option withirr the prescribed period of 30 days or quit service or dies without exercising an option or whose option is incomplete or conditional or ambiguous. l-le shail be deemed to have opted the Pension Schenre Benefits Application forrrs for exercising clption would be available with tfre Urrit Officers and ali employees includirrg retired employees wishing to exercise option, should do so within the Unit of tlteir present working/where frorn they retired, witlrirr a period clf 30 days from the date of issue of this Office order. The Unit Officers; after receiving the option fronn the ex-employees, will take further necessary action for gettirrg the necessary forrns comple'ted, which will be supplied to thern by tlre LIC for Pension etc. they r,,vill also ensure the recovery of EPF and Gratuity from the Ex-ernployees before forwarding their applications as mentioned abr:ve. The cases of all officers will be dealt with at Headtluarters. Tlre options received frclm the existing ernployees for not opting Pensio.n may be kept in their Personal file and entry made in their Service Bock,"

¶2A perusal of the scheme shows that as regards the retired employees, they had to specifically opt to be paid pension arid had to simultaneously refund to the Corporation, the employers' slrare received by them as n'lemL:ers cf the C.ontribr-itory Provident Fund Scheme together witir interest W. P. (,::) No.L4027 I 20419 {i Co n n ecte cl Matte rs J. (vide para 6 of the Scheme). 'As regards ttre existing employees, it was stated vide para 4, that the pension scheme *oitO be compulsory for those who joined service under the Corporation with effect from 23.II.I992 and as regards the existing serving employees, vide pafa 9, it was stated that those who do 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-Lt.992 wa: promulgated, if they desired to continue to be the members of the Contributory Provident Fund Scheme they had to specifically say so, fo.r the reason, their silence was 'to be treated as a deemed option to opt for the pension scheme and neeclless to state their positive option to opt for the pension scheme was always, there.

¶3Without working out the modalities with the LIC to work 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 pension scheme and who specifically opted to continue tcl be a member of the Contributory Provident Fund. Scheme, post haste, the Corpoiation,notified a voluntary retirement schemb on 3.3.1993 contents whereof reacl as under:-"Sub:-Voluntary Retirement of Employees of Delhi Transport CorPoration 'The rnatter pertaining to the introduction 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 regular etnployees of the corporation i.e. workers and W.P.(C) No.1,4027/2009 & Connected Matters _l executives who vacancies in the

¶2Eligibility:

(a)

(a) \A/,P.(C) No.1-4027/2009 & Connecied Matters are appointed against reEular corporation. An employee nrust have completed ten years of service in this corporation or ccmpleted 40 years of age to qualify for consideration under the Scheme. For this purpose, period of deputation/retention 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. Volurntary retirement will be norrnally allowed only in cases of incumbents of the posts which have been declared surplus or redundant. Houlever', voluntary retirement Scheme couid also be allowed in other cases depending on the merits of each case and in the interest of the corporation Voiunta'ry retirement cannot be claimed by any employee as a matter of right. The corporation will have the right ngt 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 earlier than the date of passing the orders

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

¶4An empioyee rr'rftc had taken voluntary retirenrent wili be eligible to ihe following refunds/payments:- Balance in his PF Accourrt as per rules of

(c) pror,ident fund. applicable to hint.

(b) Encashnrent of. refused leave and accLrmulated earned leave as per rules cf the corporation applicable to him as if l're retires under the norrnal rules of retirernent. Pav"e IA of 27 @ ^f

(c) Gratuity as per payment of gratuity act and 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 empl.oyment.

(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 date of retiretnent.

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

(g) Fensionary benefits as per office order NIo.L6 dt,27.1,3..92. (Emphasis supplied) All amounts due to the corporation will be adjusted against the payments under (d) & (e) above and the employee concerned should clear any outstand.ing clures/advances taken before the date of effect of vol ut nta ry reti rement. Employees working .on the post of Conductor in the Corporation aie proposed to be covered under the Voluntary Retirement Scheme in the tirst instance. Such Concluctors who are desirous of seelcing voluntary retirement in the proposed Scheme lnay give their.option in the prescribed Performa tlrrough proper channel within 15 da;'5 to be concerned Unit bffi'.et who will fortriard the same to the Secretary, DTC Boa rd . This issue, with a uthority. " the approval .\ of competent

¶4Needless to state, the VRS Schetne clearly notified that those who opt for voluntary retirement to pension as per the office order No'16 (vide para a(g) of the'VRS Scheme)' W.P.(C) No.L4027/2009 & Connected Matters would be entitled dated 27.ILI992 Page 11. of 27 L ;

¶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 b,y all employees of the Corporation. The officer memorandum datecl 16.3.1993 reads . as under:- "Now, it has been decided i:o cover all the employees of the Corporation under the proposed Voluntary ' Retirernent Scheme. Such employees who are desirous of seelcin.g voluntary retirement in the prbposed scheme rnay give their option in the prescribed proforma through proper channel within 15 days to the concerned Unit Officers, who will forlvard the same to the Secretary, DTC Board.'i

¶6\A/hen DTC notified the pension schenre on ?-.7 .IL.1992, lhe respondents of W.P.(C) Nos.1402712009, 4Orl}Cl,A, 565/2010, 598/201.0, 75412070, r9ct212010, 22'7412010 (3 in number) and 397912010 specifically opted for the pension scheme, The respondents of W.P.(C) Nos.423 l2O7.A,'7561?0]!, 83212010, . 752120:10, 7g3l?0l0, 138412010, 1386/2010 and 2A5I12010 clid not submit cptions and hence were to be treated as deerned optees pension

¶7lt may be noted that the writ petitioners of \ /.P.(C) Nos.1.63912010 and 1.72912010 also did not submit any options and lrence would be deemed to be optees for pensiotr. B. lt may also be noted that the respondeni of w.P.(c) No.4g06 l2_0L0 and the writ petitioner of w.P.(c) No.46B9l20l-0 submitted their options expressly stating that they dc not opt for the pension scheme, meaning thefeby, they' indicated positively that they woulcl lil<e to continue to be mernbers of the Contribuiory Provident Fund Scheme' g. on different dates, but all in the year 1993 the respondents of ali the writ petitions exce6it W,P.(C) No.1639 PA1.A, W.P.(C) No.1729 20t0 and W'P'(C) any for W. p. ( C)'No.t4.O?-7,/ 2009 & Co n n ecte d N4 atte rs Fage 12 of 27 No.333912010 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.

¶11It is thus dpparent that if request for voluntary retirernent was accepted, 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.lririrgg2 clearly stated that those who specifically opted for the pension scheme a nd those who submitted no option whatsoever woutd be treated as olting 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) i No.49061201"0 and the writ petitioner of W.P.(C) No.468912010, having exercised a positive option to continue to be retaihed as members under the Contributory Provident Fund Sclreme, could under no circumstance claim benefit under the pension scheme.

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

5.12.199.4, all employe'es of the Corporation except Officers, Traffic SuperVisorS, Tls, ATls, Vehicle Examiners and Drivers, were given another chance to opt for Voluntary Retirement by submitting letters of offer. The scheme notified stateci that all terms as per the VRS Scheme dated 3.3.1993 would apply. But, !he said notification expressly stipulated the following cond ition:- W.P.(C) No.L4027 /2009 & Connected Matters Page L3 of 27 " lt is also r"lotified for in'formation of al! st^lch ernployees who opt for VRS that'they would not be eptitled to join Pension Scheme if they are al_lowed 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)

¶13On 23.I2.1994 another circular was issued extending the right to make offer by all the employees pertaining to the VRS Scheme notified on 5.I2.7994. Thereafter on 8.5.1995, to a specified category of employees stipulated in the scheme were given the option to submit offers under ihe Voluntary Retirement Scheme. But there was an express condition therein that these employees would not' be entitled to join the pension scheme. L4. , The writ petitioners of W.P.(C) Nos.IffigD010 and 1729,12010, wlro were deemed optees under the pension s;cherne, having exercised no option at all pursuant tcr the notification date d 27.11.1992, submitted offer to be volunLarily r"etired on 4.1.1995 and 17.10.1995 To put 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 petitioners of W.P.(C) Nos.1639/2010 and J.77912010, 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 exterrrjed from time to time in the year 1993..

¶16As regards W.P.(C) No.333912010, the respondent' thereof. had retired on 1A.7.1991 i.e. before the notification clated 27.L1..1992 was issued and as regards him, vide para 6, if he did not specificallV opt for the pension scheme rruiihin 30 days of the notification datecl 27.17.1992 he urrruld have got no benefit under thet pensicn scheme for the reason on his

¶15W.P.(C) No.1,4027/2009 & Ccrnnected N4aLters Page L4 of 27 retirement he was paid over the due i.e. the amount to his credit under the Contributory 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. Thus, we can conveniently segregate the litigating _.t parties in three compartments. Those who exercised option foi voluntary retirement in 1993, Those who exercised option for voluntary retirement in the year 1995. Lastly the respondent of W.P.(C) No.3339 l2}]0 whose case has to be dealt with de-hors the Voluntary Retirement Schemes' We deal with the grievance of the Corporation

17.

¶18W.P.(C) No.1-402712009 & Connected Matters pertaining to W.P.(C) No,3339 201-0, the respondent whereof lras got benefit from the Central Administrative -[ribunal, where vide orden dated 15.1..2010 his claim has been allowed by holding that he is a deemed optee for pension as per the pension scheme notified on 27 .l1-l992

¶19No discer-nable reasons are forthcoming from the decision of the Tribun'al save and except that the Tribunal has treated his entitlement in terms of clause 9 of the pension scheme datecl 27.11.1992, ignoring the fact that clause 9 applied to.the serving employees of DTC ancl in respect of those who. had retired prior to the promulgation of the notification dated 27.I1.1992, were required to, exercise a positive option to be given pension with concomitant act of refunding the management's share received by them under the Contributoryr Provident Fund Scheme, vide pafa 6 of the notification dated 27.11.1992. Indeed, tltis has been so helci by a Division Bench of this Court in the. decision dated

16.3.2000 in LPA No.33/199A DIC Vs. Sh.Baiinath Bharaav & Ors. which decision has been upheld by the Supreme Ctlurt in Page L5 of 27 Emplovees A iation t the decision reported as (2001) 6 scc 61 DTC Retired

¶20Thus, as regards W.p.(C) No.3339 /2010 is concerned, noting that the respondent therein could not be treated as a deemed optee'for the pension scheme and having not specifically optec for the pension scheme and having received all dues payable to him when he retired as per the amount lyirrg to his credit as a member of the contributory Prorrident Fund scheme and obviously he having not opted for the pension scheme ancl thus not having returnecj the managernent's c.ontriburtion perta!ning to him and as creditecl i:n his account as a member of the corrtributory provident Fund Scheme, sai,C respondent vu,ould have no case at all. 2l-. Thus,. W.P.(C) No.333912010 is allowed. tmpugned judgment and order dated 15.1.2010 . allowing TA No.120912009 is set aside and TA No.120912009 is dismissed,

¶22We take up tlre case of .the petitioners of W.P,(C) Nos.1639/2010 and I.72912010, who were in service as on

27.ILl992 and did not submit any option uncjer the notification dated 27.1.1.1992 and hence vide clause 9 thereof would be treated as deemecl optees for the pension scheme.

¶23As' is noted'hereinabove, these two respondents applied to be voluntarily retired by submitting offers on

4.1.1995 and 17.10,1995 respectively. it ir frrther tb.be 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.L2.Igg4 and 8.5.1995 respectively i.e. the VRS Schemes notified prior,to the dates 4.1.1995 and I'7'.I0.'1995. As is notecl irereinabove both schemes un,Jer which theyr applied specifically excludeci entitlernent for pension inasmuch as the tvvo schemes clearly stated f:hat employees optinE for voluntarV retirement under tlre two W.P.(C) No.140?-7 /2009 & ConnecteC Maiters -@ schemes would not be entitled to pensiofl; an,d as regards the other-terms and conditions it was mentioned that the same would be as per the scheme notified on 3.3.1993.

24.' lt is apparent that the terms of the VRS scheme notified on 3.3.1993 are incorporated by reference under the vRS schemes notified'on 23.12j-994 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 u,ihich expressly. stated that it was notified"for information of the employees that 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 salierrt features of the scherne would be the same as per the office circular dated 3.3.1993.

¶25It may be .noted that the pension scheme rrotified on 27.rr.1992 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 of ly 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 notified on 5.I2.7.994 and 8.5.1995, we see no scope.for the petitioners of W.P.(C) Nos.1639/201-0 and t7291201.0 ro be entitled to receive any peirsion and we hold that the Tribunal has correctly dismissed their claim petitions

¶27To be fair to the said writ petitioners, we rnay note tlrat tlre only submission urged by their counsel was that the o,rders relieving them and enclosing,the amount lying to tlreir credit in the Contributory Provident Fund Scheme referred to W.P.(C) No.1"402712009 & Connected rVlatters Page 77 of 2.7 the fact that they were being retired as per the VRS Scheme dated 3.3.1993 and as extended to all the employees on

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 state,J that pension would be paid.

28.. Suffice would it be to state that a bare perusal of the orders referred to by learned counsel, evidence that a printed proforma has been used. The same pertained to the earlier VRS Schemes. lt is settled law that rights are determirrecj not lvith 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 th,e schemes notified on 5.I2.1994 and 8.12.1995. Further, they received the cheques tendered to tlrem which included tlre management's share in the Contributory Provident Funcl Acccunt. -t'hese cheques were received by them on 31.3.1995 and 31.10.1.995 respectirrely. They encashed the cheques, \A/e may note that these two petitioners had filed writ petitions in the year 2005 and 2007 respectively laying a clairn for pension Which were transferred to thq Central Adrnitristratiire Tribunal and registered as TA No.6B9/2009 and TA No.1385 2A0;g respectively, which have been clisn-rissed by the Tribunal vide impugned order" dated 23.9.2009. The claim of tlrese writ petitioners would even otherwise be bari"ed by the law of limitatircn. The principle that right to recei',re pension is a continuous cause of action is not available to them inasmuch as qua thei'n, Lhe issue wes whetlrer they were entltled to receive dues as per Contributory Provident Furrd Sclreme or unfler the pension scheme, They were paid full dues when they r"etire<j on 31.3.1995 atrd 31.10.i995 respectively as rer the Contributory Provident Furrd Scheme atrd if they iiad arrv /\ \,,V.P.(C) No.14027/2009 & Ccnnected Matlers @- grievance pertaining to the same, it had to be brought before a Competent Court within at most 3 years thereafter.

¶29Thus, W.P.(9) Nos.1639/2010 anq I729|2OI0 are dismissed

¶30Pertaini4g to the remaining 18 wiit petitions, we may divide the same into 3 further categories which emerge 'from the facts noted by us in para 6 and B above. The said 18 writ petitions are divided: Category 1-Respondents gf W.p,(C) Nos.1402712009, 40II20IO, 565/2010, 5gB/20I0, 75412010, 190212010, 227 412010 and 39191201.0 who specifically opted for the pension schemes when they submitted their offer for being . voluntarily retired as per the terms and conditiqns notified in the VRS Scheme notified on 3.3.1993 which \/as made applicable by reference. to the subsequent schemes notified in the year 1993. Category 2-Resporrdents of W.P.(C) Nos.42312470, 756120l-0, 83212010, 75212010, 79312010, 138412010, 1386/2010 and 205112010 wlro lraving 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 Conditiclns notified in the VRS Scheme notified on 3.3.1993 which was mad.e applicable by reference to the subsequent schemes notified in tlre year 1993. Ca'tegory 3-Resporrdents of W.P.(C) . No.4906 l2OI0 and the writ petitioner of W.P.(C) No.46B9 l20IO who specifically opted to be retained in the Contributory Provident Fund Scheme

¶31We take category 3 first. Surprisingly, one claimant being the resp'ondent of W.P.(C) No.4906 l2o1r0 has succeecled before the Tribunal and the other i.e. the petitioner of W.P.(C) No.46B9l20l0 has lost, notv'rithstanding their cases being identica l. W.P (C) No.14027 /.2009 & Connected Matters A Page !9 of 27

¶32Having perused the reasons given by tlre Tribunal in favour of the respondent of W.P.(C) No.490612010 as per para

27.. of the impugned order dated 13.4.2010, suffice would it be to state that the Tribunal has gone off at a complete tangent by referring to some policy decisions dated 30.4.1993 and

7.5.1993 which refer io those who have given no option whatsoever to be treated as optees under the pension scheme. We faii to understand as to how said clecisions can apply to the respondent of W.P.(C) No.490612010 who specifically opted to be retained as a member under the Contributor"y Provident Fund Scheme. Noting further that said respondent received the full atnount payable to hirn as a meniber of the Contributory Provident Fund Scheme whicl^r included the managemerrt's contribution in the fund pertaining to his account, it woul.d be another reason to hold against him ancl lastly that having retired in the year 1993 ancl received full dues in tlre same year he could not rake up the issue when he filed OA No.2053/2009 in the year 2009 before tlre.Tribunal. We concur with the reasoning given by the Tribunal pertaining to the writ petitionqr of V/.P.(C) No.4689 20]-0 when OA No.237I/2009 filed'by him was dismissed vide ordei' dai:ed

18.2.2010.

¶33Thus, W.P.(Ci No.4.68912010 is dismissed.'

¶34\^J.P.(C) No.4906120L0 is allowed. Tl're impugned ordef dated 13.'4.2010 allowing OA No.2053 l2}0g is set aside ancl OA No.2053 12009 is dismissed,

¶35Tl-re claim of the respottdents in categc'i"y 1 and category 2 may be'taken.up together for the reason whethei' they exercised a positive option to be brought urtdei-the pension scfreme or having exercisecl no optiorr wl:atsoever and hence as deemed optees being' brouglrt under [he pension schenle, their status'would i:e the same aS en'titleri to be W.P.(C) No.lL4O2'7 /2.009 & Connecte'd l\4atters Page ir-O of 27 'i-x brought under the pension scheme under the notification dated 27.1-t-I992. Since all these respondents applied for bein,g voIuntarily 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 reason clause 4(g) of the scheme notified on 3.3.1993 clearly stated ihat 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 ,.hu*", the said respondents specifically opted out from the pension scheme and by the time they retired uncier the Voluntary Retirernent Scheme, the pension scheme had not been formally brought into effect (as noted above 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 members under the Contributory Provident Fund Scheme and thus on accepting their offers to be voluntarily retired thg Corporation paid over to them not only their share 'in the Contributory Provident Fund Account but even. the management's share, which they accepteci without demur and hence coulrJ not rake up'the issue after 12 to 15 years i.e. when they filed either writ petitions in this Court which were transferred to the Central Administrative Tribunal or filed Original Applications before the Central Administrative Tribu na L

¶36Qua these respondents, it may be noted that the respondent of W.P.(C) No.I402712009 submitted a letter dated

2.3.1995'specifically stating that he does not want to opt for the pension scheme and desires his dues to be paid as per his CPF Account. The'respondent of W.P,(C) No.56512010 likewise i W.P.(C) No.'14027/2009 & Connected Matters submitted a letter on 12.7.1995. The respondent cf W.P.(C) No.59812010 likewise submitted a letter in the year 1994 and reatfirmed the said fact in the letter dated 5.11.1998, The' respondent of W.P.(C) No.75412010 likewise submitted a letter on 20.4.1995. The respondent of W,P.(C) No,1902120l-0 liker,vise submitted a letter. on 14.7.1995. The 3 respondents of W,P.(C) No.227412010 likewise submitted letters on

11..3.1994, 15.3.1994 and 9.6.1995-respectively. The respondertt of W.P.(C) No.3919l20l-0 likewise submitted a letter on 22.7.1996. The respondent of W.P,(C) No.423l20i0 lilcewise submitted a letter on 5.10.1994. The respondent of W.P.(C) No.756/2010 likewise sub'mitted a letter on 15.3.1994 as claimed by tlre DTC but cienied. by said respondent. We note that DTC has proouced said letter and additionall5r has relied upon a list prepared orl I?-.4.I994 where the name of said respondent is at serial No.11s a.nd notes his opting out for perrsion. The responCent of W.P.(C) . No .B32l2OlA likewise submitted a letter on 5.9.1995. The respondetrt ,of W.P.(C) No.7 5212010 likewise submitted a letter on LIz.1993. The respondent of W.P.(C) frlo.40J.l201-A also opted out af the pension scherne, thougir the date when he did so is not on'. record.

¶37It may be noted that all aforesaid respondents except the'respondent of V/.P.(C) No.756/2010, who clainrs not to have written lettef darted 15.3.1994, and the respondent of \/.P.(C) No,40112010 who is silent on the aspect of his having opted out i.e. has chosen not to rebut the plea of the Corporation tha! he onted out of the, pension scheme, have pleaded that they wrote the letters out of compulsion because it was uncertain whether at all the.pension scheme would be introciuced and there was complete uncertainLy rruheiher-al all \ /.P.(C) No.i.402'I/?-009 & Connected Matters Page 22 cl 27 ./<: the pension scheme would be introduced and if yes, from which date.

¶38Qua the stand taken by the respondent of W.P.(C) No.7,5612010, suffice wou'ld 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 neithel here nor there. Further, as we 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 tlre Central Administrative Tribunal in the, yea r 2009, .and was registered a.s TA No .144912009.

¶39Proceeding further, we note that the pleadings qua when the respondents of W.P.(C) Nos. 7g3l2OIO, I3B412OIO, 1386/2010 and" W.P.(C) No.205I|20IO submitted applications to opt out of the pension scheme.s 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 also claim that. tlrey did so because it was not certain as to whether at all pension scheme would be brought into force when they voluntarily retired in the year 1993.

¶40ln 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 !he same was accepted and they stood retired; compulsion being the uncertainty of pension being paid and their pressing need for funds. The legal argument advanced W.P.(C) No.IaO27/2009 & Connected Matters ./' i Paige ?3 of 27 ,{ by them is that once their offer for being compulsorily retired was accepted, the contract stood concluded by the acceptance of the offer and the terms of the contract was as contained in the VRS Scheme notified on 3.3,1993, which specifically stated tlrat such retirees would be entitled to pension. They claim that later on, the contract 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.

¶47The argument'of the said respondents has to be 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 invitaticn 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 employees become entitled to the dues as per the VRS Scheme. But, nothing prevents the parties to novate the contract. ln 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 the dues as per the CPF Scheme bnd 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 offe,r. Thus, by making 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 compuision alleged by them is the uncertainiy of pension being released. As noted hereinabove the pension w.P.(C) No.t4O27/2009 & Connected Matters @ i( scheme notified on 27.7r.1992 could not take off because Llc did not fund the scheme.as envisaged and later on the central Government agreed to fund the scheme o.n 31.10.1995 and indisputably those who retired after 1.11.1995 were puiO 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 neverted to receive benefit under CPF, came to an end on 1,11.1995. . The silence of these respondents for periods ranging from 12 to 15 years when they took 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 take the benefit of a few who likewise went to C.ourt and obtained relief, by pulling wqol over the eyes of the Court by' pleading that their act of subsequently opting out of the pension scheme was meaningless because the contract stood concluded, a submission which was accepted by the Courts without considering the further issue of . contract being novated

¶44In our opinion these respondents have no claim whatsoever 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 ma.nagement's share in the CPF account.' Their claims are hit'by delay; laches and limitation. They arq not entitled to plead..that right to receive pension is a contin-uous cause of action,. for the reason, in law either pension can be received or benefit under'the CPF account. lf the management 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.1.4027/2009 & Connected Matters the Court or the Tribunai within a maximum period of 3 years being the limitation prescribed to file a suit. That apart, if it was the case of the respondents

¶45-{, that they were compelled to opt out of pension scheme on account of 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 cornpulsion 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 acjmittedly not done sc. lt is only in the rejoinderfiled 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 or-rt of the pension scheme.

¶46Accordingly, \A/e hold that the said writ petitions have to be allowed. 47'. We allow W.P.(C) Nos.7402712009,40112010, 565/2010, 59812010, 754120l-0, t90212010, 227 4l2Ar0 . 3919/201.0, 423120i0, 756120]-0, B32l20rA, ' 75212010, 79312010, 7.3841?-0l-A, 1386/2010 and 2051/2010 and .set as!cle the impugned orciers ciated 30.6.2009, 3.8.2009,

3.9.2009, 23.9.2009, 25.9,2009, 8.10.200.9, 13.10.2009,

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

¶48To summarize the 21 writ petitions stand of as ui;der:- A. W.P.(C) No.1539 12010, W.P.(C) No.172 g120rc and V'i.P.(C) t'lo .468912010 are clismissed.

¶1W.P.(C) No.L4027/2009 & Connectcd Matte.rs a* ) W.P,(C) No.1402712009, W.p.(C) No.40rl20r0, W.P.(C) No.565/2010, W.p.(C) No.59BlZOr0, W.p.(C) No.75412010, W,P.(C) No.1902/2010, W.p.(C) No.2274l2OrO W.P.(C) No.39I}/2OIO, W.p.(C) No.423/2010, W.p.(C) No.756i2010, W.P.(C) No.832l2010, W.p.(C) No.752|ZOIO, W.P.(C) No.793/2010, W.p.(C) No.138412OIO, W.p.(C) No.1386l2OI0, W.P.(C) No.205 tlz}I}, W.p.(C) No.4906 l20r} and w.P.(c) No.333912010 are allowed and the impugned 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. B. AUGUST LO, 2O1O mm r-v-s**) (PRADEEP NAilIDR,AJOG) .A f,*r {L{. fruq,k ert JUDGE ,Vo tfVf', qvlrftr ,olo UZ Q I wlut& t(rc-Fe p ^b{a'6.- W.P.(C) No.14027/2009 & Connected Matters L CHRNTD GAR,G)