Case: Union of India and Ors Vs. M.K. Sarkar

2. The respondent joined the Railway service on 10.2.1947. He was a subscriber to Contributory Provident Fund Scheme. Railways introduced the pension scheme vide Railway Boards letter dated 16.11.1957. Under the said scheme, those who entered Railway service on or after 16.11.1957, were automatically governed by the pension scheme. Those employees who were in service as on 1.4.1957 and those who joined between 1.4.1957 and 16.11.1957 were given an option to switch over to pension scheme instead of continuing under the Contributory Provident Fund Scheme. Those who did not opt for the pension scheme were given further opportunities to exercise options to switch over to the pension scheme, whenever the pension scheme was liberalised or made more beneficial, vide Notifications dated 17.9.1960, 26.10.1962, 17.1.1964, 3.3.1966, 13.9.1968, 15.7.1972, and 23.7.1974. The validity period of the Eighth Option under Notification dated 23.7.1974, which was from 1.1.1973 to 22.1.1975, 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 to the governments contributions to the provident fund.  3. The respondent though aware of the introduction of the pension 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 Contributory Provident Fund Scheme. Ultimately the respondent while serving as Controller of Stores, took voluntary retirement with effect from 15.10.1976. As on the date of his retirement, the eighth option to shift to pension scheme, was still open for exercise. But the respondent did not opt for the pension scheme, but received the Contributory Provident Fund dues, on his retirement.  4. More than 22 years after his retirement, and after receiving his dues under the Provident Fund Scheme, the respondent made a representation dated 8.10.1998, requesting that he may be extended the benefit of the pension scheme. He stated that he was willing to refund the amount received under the Provident Fund Scheme (by way of adjustment against the arrears of pension that would become payable to him on acceptance of his request for switch over to the pension scheme). The said request was not accepted. The respondent therefore approached the Central Administrative Tribunal, in OA No.657 of 1999, seeking a direction to the Railway Administration to permit him to exercise an option to switch over to pension scheme. The Tribunal by order dated 11.2.2004 disposed of the application by directing the appellants to take a decision on the representation of the respondent by a reasoned order, making it clear that it did not examine the claim on merits. In compliance with the said direction of the Tribunal, the chairman, Railway Board, considered the representation and passed a reasoned order dated 15.5.2004, rejecting the belated request of the respondent for switching over to the pension scheme as being untenable. He also distinguished the cases of other employees who were allegedly extended the benefit of exercising the option for belated switch overs, cited and relied upon by the respondent. The relevant portion of the order is extracted below:  "Thus, the cases referred to in the preceding para are not relevant to the case of Shri Sarkar who had eight occasions to come over to the Pension Scheme during his service period. By the time, VIII Pension option was thrown open, vide Boards letter dated 23.7.1974 as extended from time to time upto 31.12.1978, Shri Sarkar was in service till 15.10.1976. He resumed as COS/NF Railway on 11.6.1976. Boards instructions dated 30.6.1976 extending the last date for exercising of option available under Boards letter dated 23.7.1974 to come over to the pension scheme upto 31.12.1976 was circulated by NF Railway vide their letter dated 17.7.1976. The said letter was circulated as per standard mailing list including HODs. Shri Sarkar, being the HOD himself at the relevant time, cannot deny having knowledge of the aforesaid Railway Boards instructions.  5. The respondent challenged the order dated 15.5.2004 by filing a second application before the Tribunal. The following averments in the application made by the respondent are relevant:  "... those employees appointed earlier (to 1.4.1957), however continued to be on PF system, but were periodically given the opportunity to opt for pension, on inspection of merits of the scheme as and when new pension scheme was offered. ..... The applicant retired in 1976 and that in the meantime periodically for certain range of time, the employees were asked to submit options.......... A considerable number of employees including the applicant did not submit option as the then scheme for pension introduced for the said limited period was not considered beneficial, since upto VII amended option, the scheme would hardly give any benefit to the said employees including the applicant. Later on, however, came the VIII option, through which a break through order vide railway Boards letter No. PC II (75) PB/3 dated 23.7.1974 was issued on the acceptance of the recommendation of the 3rd Pay Commission. The validity of the order although initially for six months was extended from time to time till 31.12.1978. It was, inter alia, laid down in the said order that in the case of those Railway Servants who are eligible for exercising option under this order but who have retired and settled up under the SRPF (contributory) Rules, the option for pension will be valid if they refund the entire government contribution. The Railway administration was accordingly to take urgent steps to bring the contents of the said letter to the notice of all concerned employees under their administrative control including those on leave or on deputation etc. It was also laid down that to facilitate circulation of this order, the Board desired that the contents of the order should be published by the Railway in their Gazette in an extra-ordinary issue as well suitable press releases also be issued.  The applicant states that he was on deputation from June 1972 to 8th January, 1975. Moreover on July 28, 1974 the applicant suffered an acute heart attack almost coinciding with the date of the issue of this order. Thereafter he was hospitalised for post Cardiac convalescence and accordingly was on leave for a long period. He was not even intimated about the content of the order by the respondents through any communication during his deputation......  .................The applicant also states that after retirement in October, 1976 the applicant was cut off from railway and was in darkness about their Pension policy. In 1998 the applicant came to know that some officers of administrative grades were given pensionary benefit with or without intervention of court since they had not been informed about option for pension."  The Tribunal by order dated 25.7.2005 allowed the application of the respondent and directed the appellants to permit the respondent to opt for pension scheme and also inform the respondent the amount that was required to be refunded in case he exercised the option. The Tribunal extracted the reasons assigned by the Chairman of the Railway Board in his order dated 15.5.2004 rejecting the request of respondent. Significantly, the Tribunal did not disagree with the said finding, nor refer to the enormous delay in making the claim. The Tribunal allowed the application, as the Railways had remained unrepresented and had not contested the claim, even though in the entire application there was no averment denying knowledge of the availability of the VIII Option dated 23.7.1974.  6. The appellants challenged the order of the Tribunal in WP (CT) No.467/2005. The High Court dismissed the writ petition by order dated 25.1.2006. The said order of the High Court is challenged in this appeal by special leave. The question for consideration is whether the respondent was entitled to exercise an option to switch over pension scheme, beyond the stipulated last date, that too twenty two years after retirement and receipt of the retirement dues under the Contributory Provident Fund Scheme.

Reasoning:
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 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.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 a benefit was illegally or irregularly extended to someone else, a person who is not extended a similar illegal benefit cannot approach a court for extension of a similar illegal benefit. If such a 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