Delhi Transport Corporation v. Zile Singh

+ % IN THE HIGH COURT OF DELHI AT NEW DELHI w.P.(c) se8/2o1o DELHI TRANSPORT CORPORATION ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VCTSUS zlLE 'INGH rhrough: ' Mr.N.L.Bareja, ll;l"toondent CORAM: HON'BLE MR. JUSTTCE PRADEEP NANDRAJOG HON',BLE MR. JUSTTCE 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? PRADiEP NANDRAIOG. I. For orders, see W.P.(C) No.1402712009. \t "L Y -frT (PRADEEP NAN'DnnJOC) IUDGE (MOOL AND JUDGE AUGUST LO, mm 20r.o fqk /r S,L rvD .?S tf tt ?t\ qVqT lr, klo V7 &l ^dw t.r (tc(L udqment Reserv dqment Delivered f,ry 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. * % + IT{ THE I-ItrGH COURT OF DELHI AT NEW DEI-HI ludoment Reserved On: 29th lullt 2070 tudqment Delivered On: 70th Auqust. 2070 w.P..(c) L4027l2o$9 DELHI TRANSPORT CORPORATION .'.. PCtitiONCT Through: Mrs.Avnish Ahlwawat, Ms'Latika ChaudharY, Advocate VCTSUS + MADHU BHUSHAN ANAND Through: + W.P.(c) 40L/201"0 DTC ZILE SINGH Through: W.P.(C) No.MOztiz0og & Connected Matters ..... Respondent Ms.Kittu Bajaj, Adv. ,.... Petitioner Ms. Latika ..... Petitioner Mrs.Avnish Ahlwawat, Ms.'Latika Chaudhary, Advocate M r, s. N . sh a rr u,'oollt oo n d e nt M r. N.L. Bareja, Al;ottoondent Page 1, of 27 Through: Mrs.AvnishAhlwawat, ChaudharY, Advocate VCTSUS . SUDERSHAN LAL SHARMA Through: Ms.Rekha Aggarwal, Advs. ..:.. Respondent Mr.D.S.Kauntae, w.P.(c) s65/2OL0 DTC Through: VCTSUS SURESH CHANDER Through: w.P.(c) 598/2OXO DELHI TRANSPORT CORPORATION ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Cha'udhary, Advocate versus + -f w.P. (c) 7s4/20L0 D.T.C. M rs Avnisn nr.'iiuu'i3llt' ir?llru o, Chaudhary, Advocate Through: VCTSUS JAG SHORAN Through: Ms. Kittu. Bajaj,';iL"toondent J-w.P.(c) Le02 I?OLO DTC , Through: versus SURENDER KUMT\R Through: .... Petitioner Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate ..... .ResPondent Ms.Kittu Bajaj, Adv. RAIO SAINI Tlirough: t 1 /.P. (C' 2274l201O DF-LHI TRANSPORT CORPORATION ....' PCtitiONCT Thi'ough: Mrs,Avnisit Ahlwawat, Iv1s.Latika ChaudharY, Advocate VCTSLIS SH.GURBACHAN l-At.. & ORS. '." RespondertLs Tlrrough: Mr.irl.L.Bareja, Adv. I' w. F.(c) 39L9/20L0 DELH I TRAI{SPORT CORPORATI ON Through: Mrs.Avnish Clra udha rv, VCTSUS ..... Petitioner Ahlwawat, Ms,Latika Advocate Ms. Kitlr-r guiul, Respondent W.P.(C) No.1402.7 /2009 & Connected Matters + w.P.{c) 423/20L0 . D E LH I rRAN s P" -if:ffi -^til?Inun i, t' Chaudhary, VCTSUS SAryA PRAKASH I<HURANA Through: Ms.Kittu Bajaj, 'w. P. (cl 756120L0 DELH I TBANSPOR,T CORPORATION Through: Mrs.Avnish Chaudhary, VETSUS SOM DUTT Through: Ms.DeePali w.P. {cl 832|2OLO DELH I ]'RANSPORT CORPORATION Through: Mrs.Avnish , Chaucihary, ..... Petitioner Ahlwawat, Ms.Latika Advocate ..... Respondent adv. ..,.. Petitioner Ahlwawat,. Ms,Latika Advocate ..... Respondent Gupta, Adv. + ..... Petitioner Ahlwawat, lvls.Latika Advocate VETSUS SH RAM AWAR SHARMA Througlr: ..... ResPondetrt Mr.S.N.Sharma, adv. , -f W.P. (c) 75212010 DELH I TRAN SPORT CORPORATION Through: Mrs.Avnish Chaudhary, VCTSUS J.L.DHUPAPR Th rouglr: tvlr. N a rotta m Mr.Vikramjeet Silcand, Advs. ..... Petitioner AhlwawaL, Ms,Latika Advocate ..... Respondent Vyas, W.P.(C) No.t40?-7/2009 & Connected Matters l-w.P. (c) 793t2OLO DELH I TRANsPORT CORPORATION Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate . VCTSUS BHAGWATI PRASAD ..... Respondent Through: Ms.Kittu Bajaj, Adv. + w.P.(c) L384l2OL0 D.T.C. VCTSUS W. P. ( C) No.1.rl$27 / 2009 8.r Co ti n ected IVI atte rs ..... Petitioner' Through:. Mrs.Avnish Ahlwawat, Ms.Latika Cltaudhary, Advocate , VETSUS SH.RAJENDER SINGH ..... Respondent T'hrough: Mr.N.L.Bareja, Ad''r. w.P.(ci L386/2O!.O orLHt 'rRANSPctir coRPoRATioN .... Petitioner Throuoh:' Mrs.Avnish Alrlwawat, Ms.Latika Chaudhary, Advocate SFI.NANU RAN4 SHARMA ...'. Respondent Through: Mr.N.l-.Bareja,Adv. w.P.(c) 2053"/2O3.Cf DTC 1-h roug h: , VCTSLIS . RANDHIR SINGH Through: w" P. (c) 4906/20L0 DELHI TRANSPORT CORPORATION . Through: Mrs.Avnish Ahlwawat, Ms.Latika versuS Chaudhary, Advocate RAMESH CHAI{D jAiN .... ResponQent -l-hrough: Mr.N.L..Bare;a, Adv. .... Petitioner Mrs.Avnish Ahiwawat, Ms.Latika ChaudhaDr, Advocate ..... ResPondettt Ivlr. N. L. Bareja, A.dv, + w.P.(c) 4689 lzOLA DEBI SINGH . Through: VCTSUS DELH I TRANSPORT CORPORATION ..... Respondent , Through: Mrs.Avnish Ahlwawat, Ms,Latika ' Clraudhary, Advocate w.P.(c) L639/20L0 CHARANJIT BATRA ....' Petitioner Through: Ms.Kittu Bajaj, Adv. . VCTSUS DELH I TRANSPOROT CORPORATION ..... Respondent Thiough: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate + w.F.n L7zslzaro CHARAN KAMAL Through: VETSUS' DTC ..... Petitioner Ms.Deepali Gupta, Adv. Ms. Kittu ga;aj','?etitioner r: + + ..... Respondent Through: Mrs,Avnish Ahlwawat, Ms'Latika Chaudhary, Advocate w.P.(c) 3339 l?O1-A D.T.C. ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms'Latika Chai;dhary, Advocate , VCTSUS PULAK MUKHERjI ..... ResPondent Through: Mr.Anrit Kumar, Adv. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR..IUSTICE MOOL CHAI{D GARG

¶1Whether'the Reporters of local papers may be allclweci to see the judgment? '2. To be referred to Reporter or not? W.P.(C) No.L402712009 & Connected Matter.s @

¶3Whether the judgment should be reported in the Digest? PRADEEP NAT{DRAIOG, I.

1.. With the promulgation of the Delhi Municipal Corporation Act 1-957 artd the Constitution of the Municipal Corporation of Delhi, m'unicipal tunctions in Delhi except NDMC area a'nd the area fallirrg 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 staf-f. As the city of Delhi grew, it was thought advisable to corporalize public transport in Delhi arrd thi,rs the Dellri Transpcrt Corporation uras formed as a body corporate and it took over ihe functioning of the Delhi -l-ransport, Undertaking. The said Corporation' had in place a Contributory Proviclent'Fund Scheme for its employees and nee'Jless to state'each tnonth a fix amoUnt was deducted from tl-re saldry of the emprloyees and with a matching contributicln hry the Corpclration was creclited in the funcl anc! in the accttunt of the employee, wlto needless to state was a riiember o'f the Contributory Provirlent Fund. The enrployees of . the Corporation agltatecj ior long that the pension schefTre of the Governnnent of lndia, which was exterrded to lhe municipal enrployees be also extended tr: them and in respect of urhic[ claim they had petitioned the Supreme Court, when in the Year lgg2 the Corporation gave an assurance to the Supreme Court that it would introdurce a pension scheme for its employees, including the retired employees and pursLlant tlrereto issued office order'No.16 dated ?-7.17.lrgg2 notifying that a pension scheme stood notified which would be operated by the L-ife W.P.(C) No.I4O27/2009 & Cortnected Matters Page 6 o'f 27 (-Insurance Corporation of lndia (LlC). The office order reads as under:-"No.Adm-l-5 (4)192 Dated 27.11.92 Sub :lntroduction of Pension Scheme in DTC as applicable to the Central Govt. Employees. The introduction of Pension Scheme for the employees of the DTC has been sanctioned by the Central Govt. and conveyed by the M.O.S.T, vide letter No.RT-L2}I?12UBB-TAG dated 23.17.92 as on the same 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.

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 Conti'ibutor5z 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.IL92, 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 Alc 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 errent of their opting for the Pension Scheme. .fhe total amount to be refunded by the retired employees/existing employees would be the amount that would have accrued, had they not withdrawn the employer's share. W.P.(C) No.I4O27/2009 8r Contrected Matters PageT of27

¶7Excess amount of gratuity, if already paid to ex-employees and which is not admissible under the Pension Scheme, will have to be refunded by them before any benefit under the Scheme, is granted to them. B. A due ancj.drewn statement would be prepared i'n 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 ernployee of DTC, who does not exercise any 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. Fle shail be deemed to have opted the Pension Scheme Benefits Application fo,rms for exercising option would be available wi'th' the Unit officers. and ali errrployees inclucjiirg retired employees wishing to exercise option, should do sc vrrithin the Unit of tlreir present working/where 1-rorn theV.retired, witlrin a period clf 30 clays from the date of issue of this Office order' The Unit Officers, after receiving the option fronr the ex-employees, will take further necessary action for gettirrg the necessary folms comple'ied, which will be iupplied to thern by tlre LIC for Pension etc. they will also ensure the re(:overy of EPF and. GratUity from the . Ex-ernployees,before forwarding their applications as ' mentione-d abrcve. The cases of all officers will be . deait with at i-leacltluarters. The options received from the existing ernployees for not opting Pension may be kept in their Pet'sonal file , and entry macle in their Service Bock"' '

¶2A perusal of the scheme shows that as regards the retired employees, they hacl to specifically opt to be paid pension arrcl had to simultaneously the employers' slrare received bY refund to tlre Corporation, them as members cf tlre C,ontributory Provident F.und Schenie togetherwitfl interest W. P.{C) Nc.14027 i2009 & Conncr:tecl Matters C (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.lrJ,lrgg} and as regards the existing serving employees, vide para 9, it was stated that those who c1o 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 21 .!I.I992 was promulgated, if they desired to continue to be the members of the Contributory Provident Fund Scheme they had to specifically say so, for the reason, their silence 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 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 coniinue tcl be a member of the Contributory Provident Fund Scheme, post haste, the Corporation notified a voluntary retirement scheme o.n 3.3.1993 contents whereof read as under:-"Sub:-Voluntary Retirement of Employees of Delhi Tra nsPort CorPoration. The rnatter pertaining to the iptroduction of voluntary Retirement Scheme for the employees has been under the consideration of Delhi Transport Corporation. Salient Features bf the proposed voluntary Retirement Scheme are as under:-

¶1ApplicabilitY: The scheme .'will etnployees df the be applicable to . all regular corporation i.e. workers and W.P.(C) No.1.4027/2009 & Connected Matters executives who a re a ppointed aga inst reg u la r vacancies in the corporation.

¶2Eligibility: An emplo5ree 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 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 normal!y allowed only in cases of incumbents of the posts which 'have been declared surplus or redundant. However', voluntary retirement Scheme could also be allowed in other cases depending on the mi-'rits of each case and in the interest of the corporation. Voiuntary retirement cannot be claimed by any employee as a matter of right. The corpor,ation 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 earlier than the date of passing the orders. An entployee in whose case any disciplinary case is pending will not be considered under this scherne until the disposal of the same.

¶4An employee vufrc had take;r voluntary retirenrent wili be eligible to the following refunds/payments:- Balance in his PF Accourrt as per rules cf

(a)

(b)

(c)

(a) prr:vident furrd applicable to hint.

(b) Encas'hnlent of refused accLrmulatecj earned ieave as Per corporation ap'plicable to him as if he tlre norrnal ruies of retirentent' leave and rules of the retires under \A/.P.(C) No.1,4027/2009 & Connecied Matters Page 1O of 27

(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 em ployment. An Ex-Gratia payment equivalent to I-Il2

(e) C 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 norfflal 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 he/she intends to settle down in lndia.

(g) 'Fensionary benefits as per office order Irf o.J.6 dt.27.1,L.92. (Emphasis supplied) All amourrts due to the Corporation will be adjusted against the payrnents under (d) & (e) above and the employee concerned should clear any outstanding clures/advances taken before the date of effect of voluntary retirement. Ernployees working on the post of Conductor in the Corporation are proposed to be coverecJ under the Voluntary Retirement Scheme in the first instartce. Such Concluctors who are desirous of seelcing voluntary retirement in the proposed Scheme lnay give their opiion in the prescribed Performa tlrrottgh proper channe! within 15 da5r5 to be concerned Unit Officer who will forward the same to the Secretary, DTC Boa rd. This issue with the approval of competent . authoritY."'

¶4Needless to state, the VRS Schelne clearly notified that those who opt,for. voluntary retirement would'be entitled to pension as per the office order No.16 dated 21 .II'7.992 (vide para a(g) of the VRS Scheme). Page IL of 27 W.P.(C) No.I4O27 /2009 & Connected Matters

¶5Soon thei'eafter vide office memorandum dated

1.6.3.1993 the VRS' Scheme notified on 3.3.1993 was made open, for offers to be submitted by al! employees of 'the Corporation. The officer memorandum dated 16.3.1993 reads as under:- "Now, it has been decided to cover all the employees of the Corporation 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 concerned Unit Officers, who will forward the same to the Secretary, DTC Board."

¶6\A/hen DTC notified the pension scheme. on 27 .Il.!99?-, the respondents of W.P.(C) Nos.14027 2009 ' 40U20iA, 565!20IA, 598/201.0, 75412070, 19Cl2/2b10, 227412010 (3 in number) and 397912010 specifically opted for the pension scherrre. The respondents of W.P.(C) Nos.423 1207.A, . 7561?01a, 83212010, 752120l-0, 793120l-0, 738412010, 1386/201.0 and 2A57,20l-0 did not submit any cptions and hence.were to be treated as deenned optees for pensio n.

¶7lt may be noted,that the Writ petitioners of \l/'P.(C) Nos.163912010 and -1.729120]-0 also did not submit anv options and lrence would be deemed Lo lce optees for pensiorr. B. lt may also be noted that the respondeni r:f w.P,(c) No.4906 120L0 and the writ petitioner of W.P.(C) No.46B9 l2}:r0 submitted their options expressly stating that they cic not opt for the pettsion Scheme, meaning thereby, they indicated positively that they woulc'l lil<e io continue to be mernbers of the Contriburory Provident Fund Scheme' g. on different dates, but all in the year 1993 the respondents of all the writ petitions except W.P.(C) No.1639 DA7.A, W.P.(C) No.1729 20t0 and w.P (c) \ /.P.(C) No.14027/2009 & Connected N4atters Page L2 of 27 No.333912010 and the writ petitioner of W.P.(C) No.46B9l20I0 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 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 sb for the reason, pertaining to the existing employees, the pension scheme notified on 27.11.1992 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 apd only those who specifically opted to continue to be members of the Contributory Provident Fund Scheme would not be treated as optees under the pensi.on scheme and would continue to be retained as members of the Contributory Provident Fund Scheme

¶11Thus, it is apparent that the respondent of W.P.(C) No.4906 120]-0 and the writ petitioner of W.P.(C) No.4689l20IA, having exercised a positive option to continue to be retained as lnembers under the Contributory Provident Fund Sclteme, could under no circumstance claim benefit under the pension scheme

¶72ln the year lgg4, by and under a notification dated '5.I2.1994, all employees of the Corporation except Officers, Traffic SupervisorS, Tls, ATls, Vehicle Examiners and Drivers, were given another chance to opt for Voluntarli Retirement by submitting letters of 'offer. The scheme notified stateci that all terms as per the VRS Scheme dated 3.3.199i would apply. But,. the said notification expressly stipulated the following condition:- W.P.(C),No.14027 /2009 & Connected Matters ? "lt is also notified for information of all such ernployees who opt for VRS that they.wot^tld not be entitled to join Pension Scherne if they are allowed retinernent 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.L2.L994. Thereafter on 8.5.1995, to a specified category of employees stipurlated in the scheme were qiven the option to submit offers under the Volunt-ry Retirement Scheme. But there was an express condition therein that these employees would not be entitled io join the pension scheme. L4. The writ petitic,rners of W.P.(C) Nos.763912010 and 772912010, wlro r,tlere deemed optees under the pension s;cherle, having exerc'ised no option at all pursuant to tlre notification dated 27.11.1992, submitted offer to be volttnLarily retired on 4.1.1995 and 17.10.1995.

¶15-fo 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.1639i2010 and 1.779[2A70, submitted offer letters to be voluntarily retired under the VRS Scheme nr:tified 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.iC) No.3339120L0, the respondent thereof had retired on I0.7.1991 i.e. before ihe notification ciatecl 27..7.1..1992 was issued and as regards him, vide para 6, if he did not specificallV opt for the pension scheme within 30 days of the notification datecJ 27.7I.1992 he uiould have got no benefit under the pensicn scheme for-the reason on his W.P.(C) No.L4027i2009 & Connected N4atters ?age 1"4 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 parties in three cornpaftments. Those who exercised option for voluntary retirement in 1993. Those who exercised option for voluntary retirement in the year. 1"995. Lastly the respondent of W.P.(C) No.3339 l2OlO whose case has to be dealt with de-hors the Voluntary Retirement Schemes. We deal with the grievance of the Cgrporation

¶171_8.

¶19pertaining to W.P.(C) No.3339 20L0, the respondent wherecrf has got benefit from the Central Administrative Tribunal, where vide order dated 15.1..2010 his claim has been allowed by holding that he is a deemed optee for pension as per the oension scheme notified on 27 .II.1992' No discernable reasons are forthcoming from the decision of the Tribunal save and except that the Tribunal has treated his entitlement in terms of clause 9 of the pension scheme datecj 27'.11.1992, ignoring the fact that clause 9 applied to the serving employees of DTC and in respect of those who hacl retired prior to the proTulgation of the notification dated '21 .ILI992, 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 Contributory Provident Fund Scheme, vide para 6 of the notifiCation clated 27.11..1992. Incleed, this has been so held by a Division Bench of this Court in the decision cjated

16.3.2000 in LPA No.33/1998 EIS-yt-Sb.8-al!-alh-Phptg-av-e Ors. which decision has been upheld by the Supreme Court i'n W.P.(C) No.1"4C27/2009 & Connected Matters the decision reported as (2001) 6 SCC O1 DTC Retired Emptovees Association & Ors. Vs. DTC & Ors.

¶20Thus, as regards W.P.(C) No.333 912070 is concerned, noting that the respondent therein could not be tr"eated as a deenred optee For the pension scheme and having not specifically opted 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 Provident'Fund Scheme and obviously he having not opted for the pension scheme and thus not having returned the management's contribution pertaining to him and as credited in his account as a member of the Corrtributory Provident Fund Scherne, sai,J respondent wouid have no case at all. 2l-. Thus, W.P.(C) No.333912010 is allowed. lmpugned judgment and orcier dated 15.1.2010 allowing TA No.120912009 is set aside and TA No.120912009 is dismissed.

¶22We take up the case of the petitioners of W.P,(C) Nos.7639120L0 and 7729120l-0, who were in service as on 2'7.71.I9g2 and did not submit any option under the notification dated:21.1.1.1992 and hence vide clause 9:thereof would be treated as deemed 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 17.1-0.1995 respectively. lt is further to be noted that by then the vcluntary retirenrent schemes notified earlier had lapsed and they could seek voluntary retirernent as per the scheme notified on 23.I2.1994 and 8.5.1995 respectively i.e. the VRS Schemes ncltified prior to the dates 4.1.\995 and I'7.I0.1995. As is noteci irereinabove both schemes under which the\, apptied s;:ecifica!ly' excluded entitlement "tor pension inasmuch as. Lhe tvvo schennes clearly stated i.hat employees opting for voluntarV retirement under the two W.P.(C) NoJ"aQ?-7/2009 & ConnecteC Maiters Page L6 of 27 schemes would not be entitled to pension; and as regards tlre 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 Sc.heme notified on 3.3.1993 are incorporated by reference under the VRS Schemes notified on 23.12.L994 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,rhich 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 notified on 27..W.1-992 could not be implemented because LIC backed out and it was only on 31.10.1.995 did the Central Gbvernmenl provide the necessary fund and only those employees who retired after 1.11.1995 started receiving pension. In other words whetlrer or not pension would have been paid remained inchoate till 31.10.1995, Having retired pursuant to the VRS Schemes notified on 5.12.1994 .and 8.5.1995, we see no scope folthe petitioners of W.P.(C) Nos.1639/201-0 and \7zglzfJl.0; to be entitled to receive any peirsion and we holC that the Tribunal has correctly dismissed their clairl petitions.

¶27To be fair to the said writ petitioners, we rnay note that the only submission urged by their coLrnsel was that the orders relieving them and enclosing the amount lyirrg to tlreir credit in the Contributory Provident Fund Scheme referred to

¶26W.P.(C) No.t4027/2009 & Connected Uatters Page 17 of 2.7 I 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.

¶28Suffice 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 e.arlier VRS Sclremes. lt is settled law that rights are determinecj not ivitlr reference to the language of the proforma but the statute or the scheme applicable, The said two petitioners subnrittecl offers to be.voluntarily retired under the 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 Fund Account. T'hese cheques were received by them on 31.3.1-995. and 31.10.1.995 respectirrely. They encashed the cheques, \A/e rnay note tlrat these two petitioners had filed writ petitions iri the year 2005 anC 2007 respectively laying a claim for pension whicfr were transferrecl to the Central Adrnirristr-atiiie Tribu na I a nd, reg istered as TA N o.689i2009 a nd TA No.13B5 i2A09 respectively, which ltave beetr disrnissed by the Tribunal vide impugned order" dated 23.9.'2009. Thei clairn of these writ petitioners wouid even otherwise be bari"ed by the law of limitati'cn. The principle that right to recei''re pensjon is a continuous cause of action is not available to thern inasmuch as qua thei'n, lhe issue was whetlrer they were entitled to receive dues as per Co.ntributory Provident Fund Sr:lreme or unCer the pensiorr scheme. They were paid full dues when they'retireo' on 31.3.1995 atrd 31.10,i995 respecLively as ner tfre Contributory Provident Fund Scheme and if thelz !'iad any \,V.P.(C) No.140?-7/2009 & CcnnecteC Matters Page L8 of 27 @ 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.I639l20L0 and 172912010 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 above. The said 18 writ petitions are divided: Category 1-Respondents of W.P.(C) N os. 14027 12009 ,. 40Il?0I0 , 5 6 5/2 010, 5g}l20 10, 7 5412010 , IgO2l20IO, 227412010 and 39191?-01.0 who specifically opted for the pension schemes when they submitted tlreir offer for being voluntarily retired as per the terms and conditions 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-Respondents of W.P.(C) Nos.423 12010, 75612010, 832120l-0, 752120l-0, 79312010, 138412010, 1386/2010 and 205U2010 who 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 ancJ 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-Resporrdents of W.P.(C) No.490612010 and the writ petitioner of W.P.(C) No,468912010 who specifically opted to be retained in the Contributory Provident Fund Scheme. 31, We take category 3 first. Surprisingly, one claimant being the respondeht of W.P.(C) No.4906120l-0 has succeeded before the Tribunal and the other i.e, the petitioner of \M.P.(C) No.46B91201-0 has lost, notvuithstanding their cases being identical. W.P.(C) No.14027 /2009 &.Connected Matters Page !9 of 27

¶32Having per'used the reasons given try the Tribr-rnal in favour of the respondent of W.P.(C) No.490612010 as per para 22 of the irnpugned order dated 13.4.2010, suffice would it be ro 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 to those who have g.iven no option whatsoever to be treated as optees under the pension scheme. We faii to urrderstand as to how said decisions can apply to the respondent of W.P.(C) No.49061201-0 who specifically opted to be retained as a mernber under the Corrtributory Provident Fund Scheme. Noting further tlrat said respondent received the'full amount payable to hirn as a mernber of the Contributory Provident Fund Scheme whicl'r included the management's contribution in the fund pertaining to his account, it would be another reason to hold Qgainst him and lastly that having retired in the year 1993 and received full dues in the sarne year he coulC not rake up the issue when he filed OA No.2053/2009 in the year 2009 before the Tribunal. We concur with the reasoning given by the Tribunal pertaining to the writ petitioner clf V/.P.(C) No.468912070 when OA No.237112009 filed by him was dismissed vide r:rdei' dated

18.2.2010.

¶33Tlrus, W.P.(Ci N o.4.68912010 is dismissed.

¶34U-'.P.(C) No.4906 120L0 is allowed. Tl-re impugned order dated 13.'+.2010 allowing OA No.205312A09 is set aside and OA No.205312009 is di.smissed,

¶35The claim of the respottdents in categoi"y l-and category 2 nray be ta!<en up together for the reason whethei' they 'dxercised a positive option to be bror.,rght .unciei' the pension sclteme or having eXercised no optiorr wl':atsoerrer and hence as rJeemeC optees being brouglrt under the pension schenre, their status wouild be the same as entitlerJ Io be W.P.(C) No.'LaO2'7/2009 & Connected Matters i F'ag,e ?-O af 27 brought under the pension scheme under the notification dated 27.I1-.1992. Since all these respondents 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 pen'sion for the reason clause 4(g) of the scheme hoiified on 3.3.1993 clearly stated ihat such persons.*orid be entitled to pensiona.ry 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 sch,eme 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 fil,ed applications specifically stating thal-they intend to opt out of the pension scheme and be reLained as members under tlre Contributory Provident Fund Scheme and thus on accepting their offers to be voluntarily retired the Corporation paid over to tlrem not only their share in the Contributory Provident Fund Account but even the management'S Share, which they accepted withrrut demur and hence coulcl 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 Administratirre Tribunal or filed Original Applications before the Central Administrative Tribu na | .

¶36Qua these'respondents, it may be noted that the respondent of W.P.(C) No.1402112009 submitted 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.565/2010 likewise W.P.(C) No.t4027/2009 & Connected Matters f submitted a letter on 12.7.1995. The'respondent of W.P.(C) No.59812010 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.75412010 likewise submitted a letter on 20.4.1995. The respondent of W.P.(C) No.1902l2A]-0 likewise submitted a letter on 14.7.1995. The 3 respondents of W.P.(C) No.227 4120]-0 likewise submitted letters on 1'1.3.1gg4, 15..3.1994 and 9.6.1995 respectively' The respondent of W.P.(C) No.39!912010 likewise submitted a, letter on 22.7.1996. The respondent of W.P.(C) No.423120i0 likewise submitted a letter on 5.10.1994. The respondent of W.P.(C) No.75612010 likewise submitted a letter on 15.3.1994 as claimed by tlre DTC but cjenied. by said respondent. VVe note that DTC has pr"oouced said letter and addi'tionally has relied upon a list prepared on I2.4.I994 where the name of saicl responclent is at.serial'No.11s anci notes lris optirrg out for perrsion. The responCent of W.P.(C) No.B32l20.10 likewise submitted a letter on 5.9.1995. The respondent of W.P.(C) No.752120L0 likewise submitted a letter on Lfz.1993. The respondent of W.P.(C) trlo.40Il2010 also opted out af the pension scherne, thougir the date when he did So is not on record. 3t. It may be noted that ail aforesaid respondents except the respondent of \n/.P.(C) No.756/2.010, who clainrs not to have written letter darted 15.3.1994, and the respondent of W.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 that he ooteci out of the pension schentet, have pleaded that they vlrrote the letters out clf compulsion because it was uncertain whetfrer at all the pension scheme Woulcl be introcluceC and there was complete uncertaInty rruheihet-al all W.P.(C) No.i402'/l?-0C)9 & Connected Matters Page 22 cf 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.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, as we would be noticing qua the othei 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 registered as TA No .144912009.

¶39Proceeding further, we note that the pleadings qua when the respondents of W.P.(C) Nos. 79312010, 13'8412010, 1386/2010 and W.P.(C) No.205 :rl2}t} submitted qpplications 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 also claim that they did so because it was not certain as to whether at all pens,ion 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 ihe 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.I4O27/2009 & Connected Matters 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 notifiecl on 3.3.1993, which specifically stated that 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, 4L The argument of the said respondepts 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 einployees become entitled to the dues as per the VRS Scheme. But, nothing prevents the parties to novate the contract. In the instant case the corrtract got novated wherl the said respondents wrote that inste.ad of being paid pension as per the scheme they be paid the dues as per the CPF Scireme and thereafter they received even the managernent'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 tlre 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.

43.' The compuision alleged by them is the uncertainty of pension being released. As noted hereinabove the pension. rry.'p. (c) No. Iao27 / 2009 & Co n n ected lvl atts rs , scheme notified on 27.I1.1992 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 frbm 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 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 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 management's share in the CPF account. Their claims 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 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.t4O27/2009 & Connected Matters the Court or the Tribunai within a maximum period of 3 years being the 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 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 acimittedly not done sc. 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 or-rt of the pension scheme.

¶46Accordingly, vve hold that the said writ petitions have to be allowed

¶47We allow W.P,(C) Nos.1402712009, 101112010, 565/2010, 59812010, 754l2oro, tgo2l20r0, 227 4l20lo 3919i2010, 423120i0, 756120]-0, 83212010, 752170:-0, 79312010, l.3B4l?-0I0, 1386/2010 and 7-05l'12010 and set aside the impugned orciers ciateci 30.6.2009, 3.8.2009,

3.g.,2009, 23.g.2009, 25.g,2009, 8,10.2009, 13.10.2009,

4.IL 2009 and 26.II.2009 i.e. the singular or composite orders disposing of one or more Transferred Application or Original Applicaticn before the Tribunal and as a consequence dismiss all the Transferred Applications or Original Applicatiorrs allowed in favour of the respective respondent(s) 48, of as uilder:- A. V'/.P.(C) f'Io.4689 l20IA are clismissed. W.P.(C) No.1.4027i2009 & Connectcd Matt€'rs To summarize tl-re 21 writ petitions stand disposed W.P.(C) No.153912010, W.P.(C) Nr:.1729120!0 and , B. W.P.(C) No.1402712009, W.p.(C) No.40Il2TtO, W.P.(C) No.565120l-0, W,P,(C) No.59812010, W.p.(C) No.75412010, W.P,(C) No .190212010, W.P.(C) No.2 27 4|2OIO W.P.(C) No.3919/2070, W.P.(C) No.423/2010, W.P.(C) No.75 612070, 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.1386 l20IO, W.P.(C) No.205 I]]:OLO, W.P.(C) No.4906 12070 and W.P.(C) No.3339/2010 are allowed and the impugned orders passed by the Central Administrative Tribunal which are ch.allenged in the said writ petitions are set aside and thg respective Transferrbd Petition, or Original Application are dismissed.

¶49There shall be AUqUST 10, 2OLO mm no orders as to costs. -I-tV':+€+ \l il (PRADEEP NANDRAjOc) JT.JDGE f^,A.t^ &e.l,,l-Lfrt +[o Lt7 8'r vl*'sltrcfc /r drr atlTfrr f-ot"LW W.P.(C) No.1,4027/2009 & Connected Matters L CHATSD GARG) Page27 of27