Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2014 Supreme(HP) 698

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
MANSOOR AHMAD MIR AND TARLOK SINGH CHAUHAN, JJ
Sainik Schools Society and anr. - Appellants
Vs.
R.C. Sharma - Respondent.
Sainik Schools Society and anr. - Appellants
Vs.
Ramji Dass - Respondent.
Sainik Schools Society and anr. - Appellants
Vs.
V.K.Sharma - Respondent.
Sainik Schools Society and anr. - Appellants
Vs.
S.S. Deshwal - Respondent.
Sainik Schools Society and anr. - Appellants.
Vs.
S.K.Gupta - Respondent.
Sainik Schools Society and anr. - Appellants.
Vs.
S.K. Dixit - Respondent.
Sainik Schools Society and anr. - Appellants
Vs.
J.P. Vashistha - Respondent.
Sainik Schools Society and anr – Appellants
Vs.
G.D. Kashir Sagar - Respondent
Sainik Schools Society and anr. – Appellants
Vs.
Deep Kumar - Respondent
Sainik Schools Society and anr. - Appellants
Vs.
S.P.Thakur - Respondent
LPA No. 89 of 2012 a/w LPAs No. 664, 665, 667, 668, 674, 682 of 2011, 90, 91 and 92 of 2012.
Decided on: June 17th, 2014

Advocates:
Advocate Appeared
For the Appellant(s) : Mr. Sandeep Sharma, Assistant Solicitor General of India (in all the appeals)
For the Respondent(s):Mr. Surender Sharma, Advocate (in all the appeals).

The employees were found to have full and complete knowledge of the instructions issued by the appellants and failed to exercise their option within the cut-off date, leading to the dismissal of the writ petitions.

Headnote:
Pension Scheme - Employees' Options - Societies Registration Act, 1860 - Pension Scheme, CPF Scheme, GPF Scheme - Family Pension and Commutation of Pension - Fresh Opportunity for Exercising Option - Misleading Communication - Discrimination - Doctrine of Waiver - Estoppel - Constitutional Violation - Court's Decision on Misled Employees' Options
Fact of the Case:

The employees of a registered Society, working in a Sainik School, filed writ petitions claiming that they were misled by the communication regarding the pension scheme, which led to their failure to exercise their option for the pension scheme. They alleged discrimination and constitutional violation, contending that they were not given a second chance to exercise their option after the amendment to the pension scheme. The appellants contested, stating that the employees were well aware of the extended benefits of the pension scheme and could not feign ignorance. The learned Single Judge allowed the writ petitions, finding that the employees had been misled by the communication regarding the extension of the pension scheme.
Finding of the Court:

The Court found that the employees had full and complete knowledge of the instructions issued by the appellants and failed to exercise their option within the cut-off date. The findings of the learned Single Judge were set aside, and the appeals were allowed, dismissing all the writ petitions.
Issues: Misleading communication regarding the pension scheme, discrimination, constitutional violation, failure to exercise option within the cut-off date, and the applicability of the doctrine of waiver and estoppel.
Ratio Decidendi: The employees were found to have full and complete knowledge of the instructions issued by the appellants and failed to exercise their option within the cut-off date, leading to the dismissal of the writ petitions.
Final Decision: The appeals were allowed, and all the writ petitions were dismissed, leaving the parties to bear their own costs.

JUDGMENT

Tarlok Singh Chauhan, Judge

This batch of appeals is preferred against the judgment of the learned Single Judge dated 26.7.2011 passed in CWP No. 480 of 2009 along with other connected writ petitions whereby the learned Single Judge allowed the writ petitions.

2. The writ petitioners are the employees of the appellants and had filed the writ petitions claiming therein the following substantive reliefs:

“(i) That the impugned Annexures PI and Annexure PN dated 24.8.2001 and 4.6.2008 may kindly be quashed and set aside by issuing a writ of certiorari.

(ii) That a writ of mandamus may kindly be issued, directing the respondents to permit the petitioner and other similarly situate persons to give fresh options to opt for the Pension Scheme keeping in view the amendment made in the scheme by the respondent No.1 Board in the year 1991 and the petitioner and other similarly situate persons be held entitled to the consequential benefits under the Pension Scheme.

(iii) That in case during the pendency of the writ petition the petitioner or other similarly situate person retire, such person(s) may also be held entitled to the benefits flowing from the decision of the present writ petition.”

3. The appellant No.1 is a registered Society registered under the Societies Registration Act, 1860. The Society has opened number of Sainik Schools in different States throughout the country and one of such school is situated at Sujanpur Tihra, District Hamirpur, Himachal Pradesh in the year 1978. The writ petitioners were working in different capacities in the school at Sujanpur Tihra are shown hereunder:

Sr.No. Name Post Held Working w.e.f.

1. J.P. Vashishtha Master (Mathematics) 23.4.1984

2. S.K.Dixit Art & Craft Attendant. 1.10.1981

3. S.P.Thakur Master (English) 13.7.1985

4. Deep Kumar Library Attendant 1.4.1986

5. V.K.Sharma Mess Manager 9.8.1980

6. S.K.Gupta Accountant 1.9.1980

7. Ramji Dass Lower Division Clerk 1.4.1984

8. S.Deswal Master (English) 19.9.1983

9. R.C.Sharma Asstt. Master (Hindi) 17.9.1983 (Retired on

28.2.2011)

10. G.D. Kshirsagar Master (Maths) 20.9.1982

4. The employees of the appellant-School were entitled for the ‘Contributory Provident Fund’ under the CPF Scheme w.e.f. 1.4.1988. The governing body of the appellant No.1 decided to apply pension scheme as applicable to the employees of Central Government to the employees of Sainik Schools. As such, the appellant No.1 sought option from its employees vide letter dated 3.3.1989 (Annexure PA) so that the employees who were in service of the appellants as on 1.4.1988 may exercise their option either for continuing with the existing CPF scheme or to switch over to the pension scheme along with General Provident Fund (hereinafter referred to as ‘GPF’). As regards the employees who were appointed on or after 1.4.1988 they were to be governed by the pension scheme and GPF only. Thus, the employees aforesaid were required to submit their option to the office Superintendent of the school before 10.3.1989.

5. In terms of the aforesaid School Routine Order (for short ‘SRO’) dated 3.3.1989, the majority of the employees save and except the petitioners and few others exercised their options and opted to continue with the existing CPF scheme. After the expiry of cut off date i.e. 10.3.1989 for exercising options to switch over from the CPF scheme to pension scheme alongwith GPF, the employees of various Sainik Schools, who had failed to exercise option in terms of the earlier order passed by different Sainik Schools, represented to the Sainik School Society requesting therein for being offered one more chance to exercise the option. Accordingly, the Board of Governors, Sainik School Society decided to afford fresh chance to employees to enable them to exercise their option on or before 31.1.1992. In this regard, Sainik School Society vide letter No. 2(2)/90.D(SSC) dated 19.12.1999 directed Principals of all Sainik Schools to call

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