UNION OF INDIA & ORS. v. M. K. SARKAR

Citation: [2009] 16 S.C.R. 249

Court: Supreme Court of India

Bench: R.V. RAVEENDRAN, K.S. RADHAKRISHNAN

Case summary

UNION OF INDIA & ORS. v. M. K. SARKAR.pdf

Judgment text

[2009) 16 (ADDL. ) S. C. R. 249 UNION OF INDIA & ORS. v. M. K. SARKAR (Civil Appeal No. 8151 of 2009) DECEMBER 8, 2009 [R. V. RAVEENDRAN AND K. S. RADHAKRISHNAN, JJ. ) Delay and /aches: Provident fund retiree who failed to exercise option to shift to the pension scheme within the stipulated time cannot exercise the option, after the expiry of validity period for the option scheme, that too after 22 years - Service law. Claims which are stale or time barred - Cause of action - Issue of limitation or delay should be considered with reference to the original cause of action and not with reference ·'\ .

to the date on which an order is passed in compliance with a court's direction - Court/Tribunal, before directing 'consideration' of a claim or representation should examine whether it is with reference to a 'live' issue or a 'dead' or 'stale' issue - If it is with reference to a 'dead' or 'state' issue or dispute, courtflribunal should put an end to the matter and not direct consideration or reconsideration - Cause of action. Notice: When a statute uses word 'notice' it must be presumed to mean not only a formal intimation but also an informal one - Similarly, service of notice would include constructive or informal notice. Constitution of India, 1950: Article 14 Equality clause must be enforced in legality and not "-• illegality - Claim on the basis of equality, by reference to someone similarly placed, is permissible only when person r ...

similarly placed was lawfully granted a relief and the person claiming relief is also lawfully entitled for the same - However, where benefit was illegally extended to someone else, person who is not extended a similar illegal benefit cannot approach court for extension of a similar illegal benefit - Equity - Service law. Respondent joined railway service on 10. 2. 1947. Railways introduced a pension scheme on 16. 11. 1957. ,. ) The scheme gave option to switch over to a pension scheme instead of Contributory Provident Fund Scheme. The validity period for exercise of option 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 the government contributions to the provident fund. The respondent though aware of the 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 CPF Scheme.

Ultimately he took voluntary retirement with effect from 15. 10. 1976. More than 22 years after his retirement and after receiving his dues under the Provident Fund Scheme, respondent made a representation dated 8. 10. 1998, requesting extension of benefit of the pension scheme. It was _. reject~d. He approached CAT. The Tribunal by order dated 11. 2. 2004 disposed of the application directing the appellants to take a decision on the representation of the respondent by a reasoned order, making it clear that it l '1\'I did not examine the claim on merits. The authority . ;. •; rejected the belated request of respondent. Respondent filed second application before Tribunal. . ,,, Railways remained unrepresented and did not contest the claim. Tribunal by order dated 25. 7. 2005 allowed his application and directed the appellants to permit respondent to opt for pension scheme. Appellant filed writ petition before High Court, which was dismissed. Hence the present appeal.

Allowing the appeal, the Court / · HELD: 1. When a scheme extending benefit of option for switchover, stipulates that the benefit would 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, respondent chose not to exercise the option and continued to remain under the Contributory Provident Fund Scheme, and also received the entire PF amount on his retirement. He was the head of his department. All communications relating to the offer of Eighth Option and several communications extending the validity period for I exercising the option for pension scheme, were sent to the heads of the departments for being circulated to all eligible employees/retired employees. Therefore, the respondent could not feign ignorance. In fact, in his application before Tribunal, he referred to all the options.

He was careful to say that he was not 'intimated' about the contents of the last order relating to extension of the option, but did. not say that he was unaware of the order extending the benefit of option. The respondent consciously chose not to exercise the option as he admittedly thought that receiving a substantial amount in lump sum under the provident fund scheme was more advantageous than receiving small amounts as monthly pension under the pension scheme. Having enjoyed the 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 his 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 straightaway rejected as barred by limitation/delay and laches. [Paras 7 and 8) (261-8-G; 262-E-H; 263-A) 2. 1. The order of the Tribunal allowing the first application of respondent directing appellants to consider his representation gave rise to unnecessary r litigation and avoidable complications. The courts/• tribunals proceed on the assumption, that every citizen deserves a reply to his representation.

Secondly they assume that a mere direction to consider and dispose of representation does not involve any 'decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to 'consider'. If the repre~entation is considered and accepted, the ex-· employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to 'consider'. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/ ... High Courts routinely entertain such applications/ petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on ~, ,, merits and grant relief.

In this manner, the bar of limitation or the laches gets obliterated or ignored. [Para 9) [263-A-G] C. Jacob v. Director of Geology and Mining & Anr. 2009 (1 O) sec 115, relied on. 2. 2. When a belated representation in regard to 'stale' or 'dead' issue/dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the 'dead' issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider 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 exercisf' .

Jf 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 1' 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 unnecessary litigation and avoidable complications. The illeffects of such directions have been considered by this Court in C. Jacob vs. Director of Geology and Mining & Anr.

- 2009 -( " (10) sec 115: "The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any 'decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to 'consider'. If the l I representation is considered and accepted, the exemployee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to 'consider'. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief ;.. _ claimed in the representation.

The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored. " When a belated representation in regard to a 'stale' or ' 'dead' issue/dispute is considered and decided, in compliance with a direction by the Courtrrribunal to do so, the date of such decision can not be considered as furnishing a fresh cause of action for reviving the 'dead' issue or time- _,.. barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction.

Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches. A Court or Tribunal, before directing 'consideration' of claim or representation should examine whether the claim or ,, representation is with reference to a 'live' issue or whether it """ is with reference to a 'dead' or 'state' issue. If it is with reference to a 'dead' or 'state' issue or dispute, the courV 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 I' 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 vs. Union of India - 1990 (4) s:c 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 J;.. available when he retired in 1976, was not entitled to seek an opportunity to exercise option to shift to the pe~::. ion scheme, after the expiry of the validity period for nption scheme, that too in the year 1998 after 22 years. 11. The respondent relied on the decision of a two-Judge Bench of this Court in Union of India vs. D. R. R. Sastri - 1997 (1) SCC 514 in support of his claim. The said decision is ,.. _ clearly distinguishable on facts.

In that case, the respondent, a railway employee, had gone on deputation to Heavy Engineering Corporation, and later resigned from railway service with effect from 26. 6. 1973 and was absorbed in the service of the said Corporation. When the Liberalised Pension Scheme was introduced by the Railway Board by letter dated 23. 7. 1974, an opportunity was given to all persons governed by the Provident Fund Scheme who were in service of Railways as on 1. 1. 1973 to opt for the pension scheme. The Railway ;-.. Board directed that the availability of such option should be brought to the notice of all retired railway servants who were in service as on 1. 1. 1973, The respondent therein who had left the Railway service on 26. 6. 1973 was not informed of the availability of the option. He could not therefore exercise the option. In fact, he retired from service of the Heavy Engineering Corporation without any pension as that Corporation had also 0 no pension scheme.

The respondent therein approached the ~ Central Administrative Tribunal in 1993 alleging that he came I to know about the said option only in 1993 and that his representation dated 12. 6. 1993 for relief was rejected by the Railway Board on 13. 7. 1993. The Tribunal held that the respondent should be given the opportunity to exercise his option to shift to pension scheme, in terms of the Railway Board's letter dated 23. 7. 1974, as he was prevented from exercising his option by the failure of Railways to inform him about the option. The Tribunal also took note of the fact that J another railway employee was allowed to exercise the option long after the date for exercising the option had expired, but the respondent was not given a similar benefit. T~e said decision of the Tribunal was affirmed by this Court. The decision in D. R. R.

Sastri is of no assistance as it does not lay down any proposition that the last date prescribed for exercising option is not relevant or that option could be exercised at any time, even if a last date had been stipulated for exercise of the "" option. That case was decided 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 Court has I impliedly accepted and affirmed this view. The assumption is not sound. The Tribunal was examining the issue with reference to a case where there was a delay of 22 years. A person, who is aware of the availability of option, cannot contend that he was not served a written notice of the availability of the option after 22 years.

In such a case, even if Railway administration was represented, it was not reasonable to expect the department to maintain the records of such intimation/s of individual notice to each employee after 22 years. In fact by the time the matter was considered more than nearly 27 years had elapsed. Further when notice or knowledge of the availability of the option was clearly inferable, the employee cannot after a long time (in this case 22 years) be heard to contend that in the absence of written intimation of the option, he is still entitled to exercise the option. This Court considered the meaning of 'notice' in Nilkantha Sidramappa Ningashetti v. Kashinath Somanna Ningashetti etc. [AIR 1962 SC 666). This Court held : "We see no ground to construe the expression 'date of service of notice' in col. 3 of Art. 158 of the Limitation Act to mean only a notice in writing served in a formal manner.

When the Legislature used the word 'notice' it must be presumed to have borne in mind that it means not only a formal intimation but also an informal one. Similarly, it must be deemed to have in mind the fact that service of a notice would include constructive or informal notice. If its intention were to exclude the latter sense of the words 'notice' and 'service' it would have said so explicitly. " 13. Learned counsel for the respondent lastly submitted that one K. V. Kasturi who had retired in 1973, was granted the benefit of exercising the option by an order dated 19. 9. 1994, and . therefore, principles of equality and equal opportunity required that the Railways should give him the option. The Chairman of Railway Board, while rejecting the , respondents' representation by order dated 15. 5. 2004 has ' clarified that K. V. Kasturi's case was similar to that of D. R. R. Shastri as he had also not been informed of the availability of option. There is another angle to the issue.

If someone has been wrongly extended a benefit, that cannot be cited as a precedent for claiming similar benefit by others. This 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 illegaly extended to others. See : Chandigarh Administration vs. Jagdish Singh - 1995 (1) SCC 745; Gursharan Singh & Ors. vs. New Delhi Municipal Committee & Ors. - 1996 (2) SCC 459; Faridabad C. T. Scan Centre vs. . , Director General, Health Services - 1997 (7) SCC 752; State of Haryana vs. Ram Kumar Mann - 1997 (3) SCC 321, State of Bihar & Ors. vs. Kameshwar Prasad Singh & Anr.

- 2000 (9) SCC 94 and Union of India vs. 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, where 8 benefit was illegally or irregularly extended to someone else, person who is not extended a similar illegal benefit cannot approach a court for extension of a similar illegal benefit. If such .. request is accepted, it would amount to perpetuating the irregularity. When a person is refused a benefit to which he is not entitled, he cannot approach the court and claim that benefit on the ground that someone else has been illegally extended such benefit. If he wants, he can challenge the benefit illegally granted to others.

The fact that someone who may be not entitled to the relief has been given relief illegally is not a ground to grant relief to a person who is not entitled to the relief. \ 14. The appeal is therefore allowed and the orders of the • Tribunal and the High Court are set aside and the original application of the respondent before the tribunal is dismissed. D. G. Appeal allowed. '