LPA No.216 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CASE NO.: LPA No.216 of 2009 (O&M) DATE OF DECISION: March 31, 2009 STATE OF HARYANA ...PETITIONER VERSUS DR. B.S. SHARMA ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MR. JUSTICE UMA NATH SINGH. PRESENT: MR. S.K. BISHNOI, DAG, HARYANA. MR. K.L. DHINGRA, ADVOCATE FOR THE CAVEATOR. ASHUTOSH MOHUNTA, J.(ORAL) C.M. No.680 of 2009 There is a delay of 26 days in filing the appeal. For the reasons mentioned in the application, the delay is condoned. LPA No.6208 of 2005 The State of Haryana has filed this Letters Patent Appeal impugning the judgement dated 5.12.2008, passed by the learned Single Judge vide which the respondent was held entitled to switch over from the Contributory Provident Fund to the pension. The facts giving rise to this Letters Patent Appeal are that the respondent Dr. B.S. Sharma retired as Lecturer from DAV College, Pundri (Kaithal) on 31.12.1998. A pension scheme was introduced by the State Government vide notification dated 31.5.1999, called Haryana Affiliated LPA No.216 of 2009 (O&M) -2- Colleges (Pension and Contributory Provident Fund) Rules, 1999 (for short 'the Pension Rules'). As per the notification, the Government of Haryana introduced a pension scheme for the employees working in non-Government aided colleges. These Rules were made effective from 11.5.1998 and the same were in lieu of the Contributory Provident Fund (Employer's share) as per provision made in Rule 3(b) of the Pension Notification issued on 31.5.1999. The employees who retired before the publication of the Notification were required to furnish their option within a period of 3 months as to whether they are willing to be governed by the these Rules or not. The petitioner who had retired on 31.12.1998, gave his option on 12.7.2000, stating that he was not willing to opt for the pension scheme. Accordingly, in view of the option exercised by the respondent, he was given both the shares of Contributory Provident Fund, i.e. of employee as well employer's share. Subsequently, in the year 2001, the Pension Rules were amended, and as per the amendment, service upto the age of 60 years was to be considered for computing the pension. This amendment was also made with retrospective effect, i.e. from 11.5.1998. The respondent filed representations (Annexures P-7 and P-8) wherein he prayed that he be permitted to revise his option and be allowed to adopt the pension scheme under the Pension Rules. It was further averred that he is ready and willing to abide by all the conditions as laid down in the amended Rules, 2001 which are applicable w.e.f. 1998. The representations filed by the respondent were rejected. The respondent filed CWP No.6208 of 2005 which has been allowed by the learned Single Judge. Counsel for the State of Haryana has submitted that once the LPA No.216 of 2009 (O&M) -3- respondent has exercised his option that he was not willing to opt for the scheme under the Pension Rules, therefore, he cannot be allowed to change his option. It has further been averred that the respondent has already been given both the shares of Contributory Provident Fund, i.e. of employee as well employer's share and therefore, the respondent cannot be allowed to change his option at this belated stage. A perusal of the impugned judgement shows that learned Single Judge placed reliance on Krishna Arya vs. State of Haryana and others, reported as 1998 (2) RSJ page 584, wherein it has been held: “After hearing learned counsel for the parties, we are of the view that there is substance in the arguments of learned counsel for the petitioner. Recently, in CWP Mo.17996 of 1997 (Des Raj and others vs. State of Haryana and others), decided on March 21, 1998, a similar matter had come up for consideration. In the aforesaid writ petition, in which one of us (R.S. Mongia, J.) was a member, it had been held that once pay scales are changed with retrospective effect and the incumbent had already given an option, then on retrospective change of the pay scale etc. he should be given another opportunity to opt for the date with effect from which the revised pay scale should be given effect to.” In Mangat Ram Nain and others vs. State of Haryana & others, reported as 2002(2) RSJ page 601, it was held as follows: “Learned counsel for the petitioners are relying on the judgment of this Court in CWP No.17996 of 1997, Des Raj and others vs. State of Haryana and others, dated March 21, 1998. LPA No.216 of 2009 (O&M) -4- The Division Bench, in which one of us (S.S. Sudhalkar, J.) was a member, observed in the said case as under: The main stand of the respondent is that once the options were exercised, the petitioners cannot be allowed to change their options. After hearing learned counsel for the parties, we are of the view that once by a subsequent order passed by the Government itself or on the basis of a judgment of a competent Court, the pay scales of a particular individual would lose its significance and such an incumbent would be entitled to give fresh option by which he can get the maximum advantage. As observed above, the petitioners had given their options for the revised pay scales much prior to the filing of the writ petitions and it was only on the writ petitions having been allowed and they having been fixed in the higher pay scale that they got another right to give their options for the revision of the pay scales.” It is a settled law that an option once exercised can be changed if any such benefit is released on a later date with retrospective effect. As a result of the amendment in 2001 Rules, the entire superannuation benefits have undergone a change, and therefore, the respondent cannot be put to loss by not permitting him to exercise his option afresh. Obviously, the respondent can only be permitted to switch over from the Contributory Provident Fund scheme to the pension scheme if he deposits both the shares of the Contributory Provident Fund, i.e. of employee as well as employer's share alongwith all the statutory interest and thereafter he would be entitled LPA No.216 of 2009 (O&M) -5- to pension under 2001 Rules. The present case is squarely covered by the judgements in Krishna Arya's case (supra) and Mangat Ram Nain's case (supra). In view of the above discussion, we find no merit in this Letters Patent Appeal and the same is dismissed. (ASHUTOSH MOHUNTA) JUDGE March 31, 2009 (UMA NATH SINGH) Gulati JUDGE