The Government has the power to set a cut-off date for exercising the option to join the Pension Scheme and to deny the benefit to employees who do not exercise the option within the specified time.

( 1 ) THE State of West Bengal has preferred this appeal challenging the judgment and order dated 1st December, 2003 passed by the learned Single Judge of this Court in connection with W. P. No. 16068 (W)of 2003.

( 2 ) THE writ petitioner-respondents filed the writ petition on the allegation that the Education Department did not consider their prayer to come under pension Scheme from the Contributory Provident Fund Scheme inspite of their repeated requests and demand. The petitioners stated in their writ petition that since their joining in service in a non-government aided institution, they were subscribers under the Contributory Provident Fund Scheme which was beneficial to their interest. The petitioners contended that with the fall of interest rate their continuation of membership under the Contributory Provident fund Scheme has become disadvantageous to their financial interest. The petitioners have frankly admitted in their writ petition that inspite of option provided to them to come under the Pension Scheme they did not avail of that option, but, now in view of the changed circumstances they want to be covered under the Pension Scheme and for that they are agreeable to deposit their share accumulated in the Provident Fund account along with interest so as to get the benefit of Pension Scheme for themselves and their family members.

( 3 ) BEFORE the learned Single Judge, it was submitted on behalf of the petitioners that already several judgments have been pronounced by this court supporting the claim of the petitioners and hence, there is no legal bar in granting relief to the petitioners claimed through the present petition. The learned Single Judge relied on such a judgment and allowed the writ petition and directed the State Government to bring the petitioners under the Pension scheme ignoring the fact that petitioners did not exercise such option given to them.

( 4 ) THE learned Advocate appearing in support of the present appeal contends before us that the learned Single Judge was not justified in passing the impugned order without application of his mind and merely relying on a judgment of learned Single Judge. The learned Advocate contends that in an unreported judgment of a Division Bench of this Court in connection with M. A. T. No. 2206 of 2001, the similar contention of teachers of Government aided institution was turned down holding inter alia that the cut off date fixed by the Government in the matter of taking the benefit of Pension Scheme cannot be altered by judicial decision.

( 5 ) THE learned Advocate for the appellant State further submits that in a decision of the Hon'ble Supreme Court reported in AIR 1990 Supreme Court page 1782, it was held that a cut off date fixed by the Government enabling its employees to switch off from Contributory Provident Fund Scheme to Pension scheme cannot be stated to be unreasonable and following that decision, it is not open to the petitioners to challenge the Government Circular dated 16th december, 1991 under which the teachers were given last chance to exercise their option to come under Pension Scheme within a specified time and further in the writ petition there was no challenge against the said circular.

( 6 ) THE learned Advocate for the State appellant has also relied on another judgment of the Hon'ble Supreme Court reported in AIR 2002 Supreme Court page 538 to substantiate the point that the decision of the Government circulated through a notification by setting a cut off date for exercising an option to eitherto come to the Provident Fund Scheme orthe Pension Scheme could not be struck down and such decision does not violate the provision of Article 14 of the constitution of India, The learned Advocate contends that the learned Single judge without examining any legal point in support of the writ petitioner and without giving any comment on the applicability of the Circular dated 16th december, 1991, allowed the prayer of the petitioner when