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TMI Blog2009 (12) TMI 1032X X X X Extracts X X X X X X X X Extracts X X X X ..... who did not opt for the pension scheme were given further opportunities to exercise options to switch over to the pension scheme, whenever the pension scheme was liberalised or made more beneficial, vide Notifications dated 17.9.1960, 26.10.1962, 17.1.1964, 3.3.1966, 13.9.1968, 15.7.1972, and 23.7.1974. The validity period of the Eighth Option under Notification dated 23.7.1974, which was from 1.1.1973 to 22.1.1975, was extended from time to time upto 31.12.1978. Under the terms of the option, a retired railway employee who opted for the pension scheme had to refund to the government's contributions to the provident fund. 3. The respondent though aware of the introduction of the pension scheme and the options given on eight occasions between the years 1957 to 1974, consciously did not opt for the pension scheme and continued with the Contributory Provident Fund Scheme. Ultimately the respondent while serving as Controller of Stores, took voluntary retirement with effect from 15.10.1976. As on the date of his retirement, the eighth option to shift to pension scheme, was still open for exercise. But the respondent did not opt for the pension scheme, but received the Contributor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent challenged the order dated 15.5.2004 by filing a second application before the Tribunal. The following averments in the application made by the respondent are relevant: ...those employees appointed earlier (to 1.4.1957), however continued to be on PF system, but were periodically given the opportunity to opt for pension, on inspection of merits of the scheme as and when new pension scheme was offered.... The applicant retired in 1976 and that in the meantime periodically for certain range of time, the employees were asked to submit options.... A considerable number of employees including the applicant did not submit option as the then scheme for pension introduced for the said limited period was not considered beneficial, since upto VII amended option, the scheme would hardly give any benefit to the said employees including the applicant. Later on, however, came the VIII option, through which a break through order vide railway Board's letter No. PC II (75) PB/3 dated 23.7.1974 was issued on the acceptance of the recommendation of the 3rd Pay Commission. The validity of the order although initially for six months was extended from time to time till 31.12.1978. It was, int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the order of the Tribunal in WP (CT) No. 467/2005. The High Court dismissed the writ petition by order dated 25.1.2006. The said order of the High Court is challenged in this appeal by special leave. The question for consideration is whether the respondent was entitled to exercise an option to switch over pension scheme, beyond the stipulated last date, that too twenty two years after retirement and receipt of the retirement dues under the Contributory Provident Fund Scheme. 7. When a scheme extending the benefit of option for switchover, stipulates that the benefit will be available only to those who exercise the option within a specified time, the option should obviously be exercised within such time. The option scheme made it clear that no option could be exercised after the last date. In this case, the respondent chose not to exercise the option and continued to remain under the Contributory Provident Fund Scheme, and more important, received the entire PF amount on his retirement. The fact that the respondent was the head of his department and all communications relating to the offer of Eighth Option and the several communications extending the validity period for exercisin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he benefits and income from the provident fund amount for more than 22 years, the respondent could not seek switch over to pension scheme which would result in respondent getting in addition to the PF amount already received, a large amount as arrears of pension for 22 years (which will be much more than the provident fund amount that will have to be refunded in the event of switch over) and also monthly pension for the rest of his life. If his request for such belated exercise of option is accepted, the effect would be to permit the respondent to secure the double benefit of both provident fund scheme as also pension scheme, which is unjust and impermissible. The validity period of the option to switch over to pension scheme expired on 31.12.1978 and there was no recurring or continuing cause of action. The respondent's representation dated 8.10.1998 seeking an option to shift to pension scheme with effect from 1976 ought to have been straight away rejected as barred by limitation/delay and laches. 9. The order of the Tribunal allowing the first application of respondent without examining the merits, and directing appellants to consider his representation has given rise to un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;stale' issue. If it is with reference to a 'dead' or 'state' issue or dispute, the court/Tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or Tribunal deciding to direct 'consideration' without itself examining of the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect. 10. Even on merits, the application has to fail. In Krishena Kumar v. Union of India 1990 (4) SCC 207, a Constitution Bench of this Court considering the options given to the Railway employees to shift to pension scheme, held that prescription of cut off dates while giving each option was not arbitrary or lacking in nexus. This Court also held that provident fund retirees who failed to exercise option within the time were not entitled to be included in the pension scheme on any ground of parity. Therefore, the respondent who did not exercise the option available when he retired in 1976, was not entitled to seek an opportunity to exercise option to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on its peculiar facts as the employee (who was on deputation and who resigned from the service of railways on 26.6.1973 when on deputation) was not made aware of the option to which he was entitled, even though there was a specific instruction that all employees who had retired after 1.1.1973 should be informed about the option. The facts of this case are completely different. Here the employee was in service of the Railways itself before and at the time of retirement. He was working as the Head of the Department and was receiving all communications relating to option for being circulated to all employees in his department. Therefore, the question of respondent not being aware of the option does not arise. 12. The Tribunal in this case has assumed that being 'aware' of the scheme was not sufficient notice to a retiree to exercise the option and individual written communication was mandatory. The Tribunal was of the view that as the Railways remained unrepresented and failed to prove by positive evidence, that respondent was informed of the availability of the option, it should be assumed that there was non-compliance with the requirements relating to notice. The High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in a series of decisions has held that guarantee of equality before law under Article 14 is a positive concept and cannot be enforced in a negative manner; and that if any illegality or irregularity is committed in favour of any individual or group of individuals, others cannot invoke the jurisdiction on courts for perpetuating the same irregularity or illegality in their favour also, on the reasoning that they have been denied the benefits which have been illegally extended to others. See : Chandigarh Administration v. Jagdish Singh 1995 (1) SCC 745; Gursharan Singh and Ors. v. New Delhi Municipal Committee and Ors. 1996 (2) SCC 459; Faridabad C.T. Scan Centre v. Director General, Health Services 1997 (7) SCC 752; State of Haryana v. Ram Kumar Mann 1997 (3) SCC 321, State of Bihar and Ors. v. Kameshwar Prasad Singh and Anr. 2000 (9) SCC 94 and Union of India v. International Trading Company 2003 (5) SCC 437. A claim on the basis of guarantee of equality, by reference to someone similarly placed, is permissible only when the person similarly placed has been lawfully granted a relief and the person claiming relief is also lawfully entitled for the same. On the other hand, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X
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