IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.3963 of 2009. Date of decision: 16.05.2011. Prithi Singh …Petitioner Versus H.R.T.C. and another …Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No For the Petitioner : Mr.M.L. Sharma, Advocate. For the Respondents : Mr.Adarsh Sharma, Advocate Deepak Gupta, J (Oral) 1. By means of this petition, the petitioner has prayed that the respondent be directed to grant pension to him with effect from the date of his retirement i.e. 9.10.1995 alongwith interest @ 18% p.a. 2. The stand of the respondent HRTC is that the petitioner was an employee of the HRTC who after rendering 11 years, 5 months and 14 days service sought retirement on account of certain family circumstances. The petitioner before his retirement had already opted to Whether reporters of the local papers may be allowed to see the judgment? Yes 2 retain the existing employees Provident Fund scheme (CPF) and had not exercised his option for being covered under the pension scheme. Therefore, according to the HRTC the petitioner was not entitled to pension and was only entitled to the provident fund. 3. Sh.M.L. Sharma, learned counsel for the petitioner contends that the petitioner was under stress when he applied for voluntary retirement and even now he is willing to change his option and refund the amount which he had received by way of provident fund. He submits that the respondents cannot deny pension to the petitioner. 4. I am unable to accept the argument of the learned counsel for the petitioner. The petitioner sent his application for seeking voluntary retirement on 10.7.1995 and retired on 9.10.1995. From 9.10.1995 till 2009 when the petition was filed, the petitioner except for sending one or two representations claiming pension, had never stated that he had sought voluntary 3 retirement under stress. Therefore, he cannot be permitted to argue that at that time he was not in a mentally fit condition. 5. As far as the second limb of the argument of Sh.Sharma is concerned, once an employee has opted to be covered under the provident fund scheme he cannot be permitted to change his option at the mere asking. 6. The Apex Court in Union of India and others vs. M.K. Sarkar, (2010) 2 SCC 59 held as follows: “20. 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 4 question of respondent not being aware of the option does not arise. 21. 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 impliedly accepted and affirmed this view. The assumption is not sound. 22. 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.” 7. This case is squarely covered by the aforesaid judgment. In fact, in the present case the petitioner has not denied having 5 exercised his option. He cannot change the same. 8. In view of the aforesaid discussion, this petition is dismissed. No costs. May 16, 2011 ( Deepak Gupta ), PV Judge