High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

LPA No.411 of 2012 alongwith LPAs

No.412 & 413 of 2012.

Judgment reserved on : 07.07.2015.

Date of decision: July 22,2015.

1. LPA No.411 of 2012.

Regional Provident Fund Commissioner

Employee’s Provident Fund Organization .….Appellant.

Versus

R.C. Gupta and others …..Respondents.

2. LPA No.412 of 2012.

Regional Provident Fund Commissioner

Employee’s Provident Fund Organization …..Appellant.

Versus

HPTDC Employees Union and others. …..Respondents.

3. LPA No.413 of 2012.

Regional Provident Fund Commissioner

Employee’s Provident Fund Organization ….Appellant.

Versus

Himachal Pradesh Paryatan Vikas Nigam

Karmchari Sangh and others …..Respondents.

Coram

The Hon’ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Whether approved for reporting?

1

Yes

For the Appellant(s) : Mr.Navlesh Verma, Advocate, in all the

appeals.

For the Respondents : Mr.Subhash Sharma, Advocate, for

respondents No.1 to 6 in LPA No.411 of

2012 and for respondents No.1 and 2 in

LPAs No.412 and 413 of 2012.

Mr.Ashok Sharma, Assistant Solicitor

General of India with Mr.Angrej Kapoor,

Whether the reporters of the local papers may be allowed to see the Judgment?

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Advocate, for respondents No.7 and 8 in

LPA No.411 of 2012 and for respondents

No.3 and 4 in LPAs No.412 and 413 of

2012.

Mr.Shivank Singh Panta, Advocate, for

respondent No.9 in LPA No.411 of 2012

and for respondent No.5 in LPAs No.412

and 413 of 2012.

Tarlok Singh Chauhan, Judge.

Since common question of law and facts arises for

determination, therefore, all these appeals are taken up together for

disposal.

2. The writ petitioners, who are the respondents herein, filed

petitions before this Court on the ground that they have illegally been

denied pensionable rights under the Employees’ Pension Scheme, 1995,

which scheme had subsequently been amended vide amendment dated

28.02.1996.

3. The Employees’ Provident Funds and Misc ellaneous

Provisions Act, 1952 was made applicable to the HPTDC Corporation

w.e.f. 1

st

September, 1974 which covered all the employees of the

Corporation under the Employees’ Pension Scheme, 1995. Insofar as the

Employees Provident Fund is concerned, it provided for a system of

provident fund compulsorily on contribution basis by the Employer and

employees jointly. The rate of contribution as on 16.11.1995 was 10% of

salary, which was raised to 12% in the year 1997. The Employer who has

been arrayed as respondent No.9 was contributing the employers’ share

at the rate on total salary which constituted of not only the basic pay but

even the dearness allowance w.e.f. 16.11.1995. Equal contribution was

also made from the salary of the writ petitioners as employees’ share.

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4. The aforesaid Act came to be amended vide Act No.25 of

1996 by making provisions for pension after the retirement of employees

covered under the Act. The amendment was constituted in terms of

Section 6 -A and 6 -B of the Principal Act authorizing the Central

Government to frame Employees’ Pension Scheme for providing

superannuation or retiring pension etc.

5. Vide notification dated 16.11.1995, the Central Government

notified the Employees’ Pension Scheme, 1995 and vide Sub-para 3 of

Para-7 of the scheme all the employees were required to exercise their

options to join the scheme within a period of six months from 16.11.1995

i.e. upto 15.05.1996. However, before the expiry of the aforesaid option

period, the Employees’ Pension Scheme was amended w.e.f. 16

th

March,

1996 vide GSR No.748 (E) dated 16.11.1995. The condition to exercise

the option within six months as had been notified in the original scheme

was done away and that apart certain other amendments were also

carried out.

6. In the scheme that was originally notified on 16.11.1995, the

wage ceiling was `5,000/- for determining the pensionable salary and the

same was raised to `6,500/- per month w.e.f.01.06.2001. The original

scheme of 1995 envisaged two kinds of pension patterns which are as

follows:-

a) One based on the wage ceiling of `6,500/- per month; and

b) Another based on the higher salary exceeding the wage

limit of `6,500/- per month for which the contribution of

higher salary exceeding the wage ceiling were to be made in

the pension fund on 16.11.1995.

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It is not in dispute that the amended scheme guaranteed the

pension benefits to the employees already covered under the original

scheme.

7. The basis of claim of the writ petitioners was that insofar as

the original scheme is concerned, the same was given wide publicity and

was circulated by the Provident Fund Organization, but when the

amendment was carried out in the original scheme, it was neither

published nor the writ petitioners were aware of it.

8. After learning about the amended scheme, representation

was made by the 9

th

respondent to the appellants, but the same w as

rejected vide letter dated 10

th

January, 2006 which reads thus:-

“EMPLOYEES’ PROVIDENT FUND ORGANIZATION

Regional Office:

Block No.34, I & II Floor, SDA Complex, Kasumpti, Shimla-9 (H.P.)

No.Pension Cell/Ro/HP/HPTDC/EPS-95-16360 Dated: 10 JAN 2006.

To

The Managing Director

Himachal Pradesh Tourism Dev. Corp. Ltd.

Ritz Annexe, Shimla- 171001.

Sub:- Implementation of the Employees’ Pension Scheme 1995

regarding.

Sir,

This is with reference to your letter No.ACCtts./67-10/82-

TDC dated 22.03.2005 regarding to contribute the pension

contribution on higher rate from retrospective date.

In this connection, the matter was referred to Head Office

and it has been clarified that Employer and Employee can

exercise option to contribute on salary exceeding the wage

ceiling on two occasion:-

1. Immediately on and from the date of commencement of

the scheme, i.e. 16.11.1995.

2. Immediately on and from the date the salary exceed the

statutory limit (`6500/- at present.)

From the above provisions, it is clear that the

establishment is required to remit the contribution on the salary

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over and above the statutory from the month in which the salary

crossed that limit and not from any later date. Since your

establishment wants to contribute on higher wages at present

which is not within the provisions of EPS’ 95, hence the

permission to contribute on higher wages is hereby rejected.

Yours faithfully,

Sd/-10/1/06

(J.R. Sharma)

Regional P.F. Commissioner/H/OIC.”

9. It was also contended that 9

th

respondent on the basis of

original scheme, 1995 deposited 8.33% subject to wage limit of `6,500/-

(which was `5,000/- upto 30.04.2001) out of total 12% of Employer’s

share into the “Pension Fund Account” and remaining 3.67% was

remitted in the “Provident Fund” of the concerned employees. Therefore,

consequent to the amendment in the scheme, 8.33% on full salary

beyond the wage limit of `6,500/- should have been deposited in the

“Pension Fund Account” and balance in the “Provident Fund Account” of

the employees. It was further contended that the 9

th

respondent had been

contributing on full salary exceeding the wage ceiling i.e. `6,500/- from

the very commencement of the Employees’ Pension Scheme that was

floated in the year 1995. But, since the amendment remained un-noticed

for no fault of the writ petitioners, they got no opportunity to switch over

to the amended scheme which resulted in 8.33% of the employees’

contribution remitted in the pension fund being limited to the wage

salary, whereas, the only procedural requirement was the bifurcation of

the already deposited amount under the appropriate heads of accounts of

“Pension Fund Account” and “Employees Provident Fund Account” which

should have been done by the respondents.

10. It was thereafter contended that 9

th

respondent vide letter

dated 22

nd

March, 2005 had represented to the appellants and informed it

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that the Employer had been contributing its share at the rate of 12% of

the basic pay plus ADA. The amount so remitted in the “Employees’

Pension Fund” under the “Employees’ Pension Scheme, 1995” was

8.33% of the employees’ share limited to `5,000/- per month of

pensionable salary which limit was later increased to `6,500/- per month

w.e.f. 01.06.2001. The net result of this was that the employees, who

had retired were given pension by taking the limit of pensionable salary

of `6,500/-. But, had the remittance in the Employees’ Pension Fund at

the rate of 8.33% been made without the limit of `6,500/- out of 12% of

the Employer’s share, the retirees would have got much higher pension

based upon the average of basic pay plus ADA drawn by them during the

preceding 12 months of their retirement.

11. On the basis of the aforesaid pleadings, the writ petitioners

claimed various reliefs. However, at the time of final hearing, the writ

petitioners did not press the entire reliefs and restricted the prayer only to

the relief that the already deposited amount of employees’ share of

contribution under the appropriate heads of accounts of “Pension Fund

Account” and “Provident Fund Account” beyond the wage limit from the

date of enforcement of the Employees’ Pension Scheme, 1995, i.e.

16.11.1995 as per the amendment dated 28.02.1996 of the said scheme

be got recalculated and readjusted from the appellants and proforma

respondents.

12. The appellants contested the petition by filing reply wherein

it had been averred that the writ petition was not competent and

maintainable as the appellants were required to act within the fourcorners

of the Act and the Scheme, and whereas the writ petitioners were

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seeking a relief which was contrary to both the Act and the Scheme and,

therefore, the petition deserved to be dismissed.

13. On the other hand, the Employer filed its reply supporting the

claim of the writ petitioners and it was submitted that the amendment

dated 28.02.1996 to the Employees’ Pension Scheme, 1995 remained

unnoticed by it and even the Employees’ Provident Organization, who

had been administering the scheme had also not invited the revised

options for contribution on full salary beyond the wage limit from the

employees through the Employer Corporation consequent to the said

amendment. However, subsequently when it was brought to the notice of

the Employer, the matter was taken up with the Employees Provident

Organization for allowing the contribution on the full salary beyond the

wage limit out of the Employer’s share which had already been deposited

from the very inception of the scheme i.e. 16.11.1995 and required only

the bifurcation of proportionate amounts under the proper heads of

accounts of Provident Fund and Pension Fund for which the Employer

was ready and willing in the best interest of its employees as had already

been consented vide letter dated 22.03.2005.

14. The learned writ Court concluded that the writ petitioners’

right from the very inception had been contributing on the full salary at

that time which fact was also admitted by the proforma respondent. But,

the Employees Provident Organization, who was administering this

scheme did not invite the revised options for contribution on full salary

beyond the wage limit from the employees through their Employer-

Corporation consequent to the amendment carried out in the scheme

vide amendment dated 28.02.1996. However, subsequently when it was

brought to the notice of the writ petitioners, they took up the matter with

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the Employees’ Provident Organization for allowing the contribution on

the full salary beyond the wage limit which was deposited from the very

inception of the scheme i.e. 16.11.1995.

15. After making these observations, the learned writ Court

allowed the writ petitions by holding that no fault can be found with the

writ petitioners because of the fault or inaction on the part of the

appellants or any other instrumentality of the State because as soon as

the Employer came to know about the amendment in the scheme , it

deposited its share right from the inception o f the scheme and it was

observed:-

“7.….Therefore, the lapse of the respondents would cost dearer

to its employees covered under the benevolent legislation without

any lapse on their part. Therefore, the respondents are hereby

directed to re-calculate a nd re-adjust the already deposited

amount of employers’ share contribution under the appropriate

Head of Accounts of ‘Pension Fund Account’ and Provident Fund

Account’ from the wage limit from the date of enforcement of the

Pension Scheme in the year 1995, as per the subsequent

amendment carried out in the year 1996 (Annexure P-2 referred

above). However, it is made clear that these directions are only

for the benefits of the petitioners in the above mentioned petition

in peculiar facts and circumstances and shall not be treated as a

precedent.”

16. The appellants have taken exception and questioned these

findings on the ground that once the writ petitioners have failed to make

remittances through their Employer on the higher wages being drawn by

them, they could not be allowed to retrospectively contribute on the

higher wage in order to increase the payable pension amount. It is further

argued that it was only the employees, who had contributed as per the

1995 scheme, who alone could be permitted the benefit of the said

scheme and the benefit could not be extended to the employees, who

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had not opted or contributed under this scheme. It is also argued that the

writ petitioners could not have filed the writ petitions by pleading

ignorance of law.

17. On the other hand, Shri Subhash Sharma, learned counsel

for the respondents has vehemently argued that no fault can be found

with the judgment rendered by the learned writ Court as the same is just,

legal and equitable and it is the appellants, who have drawn cut-off date

only to deny the writ petitioners their due.

We have heard the learned counsel for the parties and have

gone through the records of the case.

18. From the perusal of the pleadings of the writ petitions, the

first and foremost question which, according to us, was required to be

determined by the learned writ Court was as to whether the writ

petitioners could plead and base their entire claim on ignorance of the

scheme of 1996.

19. The Employees’ Provident Fund s and Miscellaneous

Provisions (Amendment) Act, 1996 came into force on 16

th

November,

1995 and certain changes in the Employees Provident Fund s and

Miscellaneous Act, 1952 were brought about. Section 6A provided for

Employees’ Pension Scheme and reads thus:-

“6A. Employees' pension Scheme. (1) The Central Government

may, by notification in the Official Gazette, frame a scheme to

be called the Employees' Pension Scheme for the purpose of

providing for-

(a) superannuation pension, retiring pension or permanent total

disablement pension to the employees of any establishment or

class of establishments to which this Act applies; and

(b) widow or widower's pension, children pension or orphan

pension payable to the beneficiaries of such employees.

(2) Notwithstanding anything contained in section 6, there shall

be established, as soon as may be after framing of the Pension

Scheme, a Pension Fund into which there shall be paid, from

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time to time, in respect of every employee who is a member of

the Pension Scheme,-

(a) such sums from the employer's contribution under section 6,

not exceeding eight and one- third per cent, of the basic wages,

dearness allowance and retaining allowance, it any, of the

concerned employees, as may be specified in the Pension

Scheme;

(b) such sums as are payable by the employers of exempted

establishments under sub- section (6) of section 17;

(c) the net assets of the Employees' Family Pension Fund as on

the date of the establishment of the Pension Fund;

(d) such sums as the Central Government may, after due

appropriation by Parliament by law in this behalf, specify.

(3) On the establishment of the Pension Fund, the Family

Pension Scheme (hereinafter referred to as the ceased

scheme) shall cease to operate and all assets of the ceased

scheme shall vest in and shall stand transferred to, and a ll

liabilities under the ceased scheme shall be enforceable

against, the Pension Fund and the beneficiaries under the

ceased scheme shall be entitled to draw the benefits, not less

than the benefits they were entitled to under the ceased

scheme from the Pension Fund.

(4) The Pension Fund shall vest in and be administered by the

Central Board in such manner as may be specified in the

Pension Scheme.

(5) Subject to the provisions of this Act, the Pension Scheme

may provide for all or any of the matters specified in Schedule

III.

(6) The Pension Scheme may provide that all or any of its

provisions shall take effect either prospectively or

retrospectively on such date as may be specified in that benefit

in that scheme.

(7) A Pension Scheme, framed under sub-section (1), shall be

laid, as soon as may be after it is made, before each House of

Parliament, while it is in session, for a total period of thirty days

which may be comprised in one session or in two or more

successive sessions, and if, before the expiry of the session

immediately following the session or the successive sessions

aforesaid, both Houses agree in making any modification in the

scheme or both Houses agree that the scheme should not be

made, the scheme shall thereafter have effect only in such

modified form or be no effect, as the case may be; so however,

that any such modification or annulment shall be without

prejudice to the validity of anything previously done under that

scheme."

20. It was pursuant to the provisions of Section 6A of the

Amendment Act, 1996 that the Employees’ Pension Scheme, 1995 was

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introduced and published in the gazette of India on 16

th

November, 1995.

It is not in dispute that this scheme was amended w.e.f. 16

th

March, 1996

vide GSR (General Statutory Rules) No.134 dated 28.02.1996 w.e.f.

16.03.1996.

21. In this background, the question then arises as to what

would be the effect of the publication of the scheme by way of notification

in the official gazette. This question need not detain us any longer in

view of three Judges Bench decision of the Hon’ble Supreme Court in

Union of India and others versus Ganesh Das Bhoj Raj (2000) 9 SCC

461, wherein the Hon’ble Supreme Court held that it was an established

practice that the publication in the official gazette was an ordinary method

of bringing a rule or subordinate legislation to the notice of the people

concerned and individual service of a general notification on every

member of the public was not required and the interested person could

acquaint himself with the contents of the notification published in the

gazette. This was the usual method followed since years and there was

no other mode prescribed and, therefore, the notification would come into

operation as soon as it is published in the gazette. It is apt to reproduce

the following observations:-

“11. In our view, as noted above, in Pankaj Jain Agencies

versus Union of India (1994) 5 SCC 198 the Court directly dealt

with a similar contention and after relying upon the decision in

the case of State of Maharashtra versus Mayer Hans George

AIR 1965 SC 722 rejected the same. That decision is followed

in I.T.C. Ltd. versus CCE (1996) 5 SCC 538 and other matters.

Hence, it is difficult to agree that the decision in Pankaj Jain

Agencies case was not helpful in deciding the question dealt

with by the Court. Section 25 of the Customs Act empowers the

Central Government to exempt either absolutely or subject to

such conditions, from the whole or any part of the duty of

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customs leviable thereon by a notification in Official Gazette.

The said notification can be modified or cancelled. The method

and mode provided for grant of exemption or withdrawal of

exemption is issuance of notification in the Official Gazette. For

bringing Notification into operation, the only requirement of the

section is its publication in the Official Gazette and no further

publication is contemplated. Additional requirement is that

under Section 159 such notification is required to be laid before

each House of Parliament for a period of thirty days as

prescribed therein. Hence, in our view Mayer Hans George

(supra) which is followed in the Pankaj Jain Agencies case

represents the correct exposition of law and the Notification

under Section 25 of the Customs Act would come into operation

as soon as it is published in the Gazette of India i.e. the date of

publication of the Gazette. Apart from prescribed requirement

under Section 25, usual mode of bringing into operation such

notification followed since years in this country is its publication

in the Official Gazette and there is no reason to depart from the

same by laying down additional requirement.

12. In the case of Mayer Hans George, it was contended that

the notification under Section 8 of the Foreign Exchange

Regulation Act, 1947 of the Reserve Bank of India could not be

deemed to have been in force and operation merely from the

date of issue or publication in Gazette. It would have effect only

from the date on which the person against whom it is sought to

be enforced had knowledge of its making. A contention was

raised as regards the precise point of time when a piece of

delegated legislation like exemption notification by the Reserve

Bank would in law take effect. In support of that contention

reliance was placed on the decision of Privy Council in Lim Chin

Aik v. R.1963 AC 160. The Court negatived the said contention

by holding that in the first place the order of Minister dealt with

by the Privy Council was never published since admittedly it

was transmitted to the Immigration official who kept it with

himself. The Court observed: -

“But in the case on hand, the notification by the Reserve Bank

varying the scope of the exemption, was admittedly

‘published’ in the Official Gazette-- the usual mode of

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publication in India, and it was so published long before the

respondent landed in Bombay. The question, therefore, is not

whether it was published or not, for in truth it was published,

but whether it is necessary that the publication should be

proved to have been brought to the knowledge of the

accused…. Lastly, the order made by the Minister in the

Singapore case, was one with respect to a single individual,

not a general order, whereas what we have before us is a

general rule applicable to every person who passes through

India. In the first case, it would be reasonable to expect that

the proper method of acquainting a person with an order

which he is directed to obey is to serve it on him, or so publish

it that he would certainly know of it, but there would be no

question of individual service of a general notification on every

member of the public, and all that the subordinate law-making

body can or need do, would be to publish it in such a manner

that persons can, if they are interested, acquaint themselves

with its contents.”

13. The Court further referred to the judgment of Bailhache J. in

Johnson V. Sargant & Sons (1918) 1 KB 101 and did not

approve the observation made therein to the effect that the

order was not known until the morning of May 17 but it came

into operation before it was made known. On the contrary,

Court held that there was great force in learned authors (Prof.

C.K. Allen) following comment on reasoning in Sargant case:

“This was a bold example of judge-made law. There was no

precedent for it, and indeed a decision, Jones v. Robson

(1901) 1 KB 673 which, though not on all fours, militated

strongly against the judges conclusion, was not cited; nor did

the judge attempt to define how and when delegated

legislation became known. Both arguments and judgment are

very brief. The decision has always been regarded as very

doubtful, but it never came under review by a higher court.”

The Court also held that:

“It is obvious that for an Indian law to operate and be effective

in the territory where it operates viz., the territory of India it is

not necessary that it should either be published or be made

known outside the country. Even if, therefore, the view

enunciated by Bailhache, J. is taken to be correct, it would be

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apparent that the test to find out effective publication would be

publication in India, not outside India so as to bring it to the

notice of everyone who intends to pass through India. It was

published and made known in India by publication in the

Gazette on the 24th November and the ignorance of it by the

respondent who is a foreigner is, in our opinion, wholly

irrelevant.”

The Court further observed: -

“ [B]ut where there is no statutory requirement we conceive

the rule to be that it is necessary that it should be published in

the usual form i.e., by publication within the country in such

media as generally a dopted to notify to all the persons

concerned in the making of rules. In most of the Indian

statutes, including the Act now under consideration, there is

provision for the rules made being published in the Official

Gazette. It therefore stands to reason that publication in the

Official Gazette viz., the Gazette of India is the ordinary

method of bringing a rule or subordinate legislation to the

notice of the persons concerned.”

14. From the aforesaid judgment it can be stated that it is

established practice that the publication in the official gazette,

that is, Gazette of India is ordinary method of bringing a rule or

subordinate legislation to the notice of the persons concerned.

Individual service of a general notification on every member of

the public is not required and the interested person can

acquaint himself with the contents of the notification published

in the gazette. It is the usual mode followed since years and

there is no other mode prescribed under the present statute

except by the amendment in the year 1998 by Bill 21 of 1998.”

22. A similar issue came up before this Court in a batch of

appeals, the lead whereof was LPA No.89 of 2012, titled Sainik

Schools Society and anr. versus R.C.Sharma, decided on 17

th

June,

2014, where the teachers of the Sainik School had approached this Court

and claimed that they were though entitled to pension under the CPF

Scheme w.e.f. 01.04.1988, however, being unaware of the scheme, they

could not apply within the stipulated time. This Court held that there was

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no requirement of the scheme that the school was under any obligation

calling upon them (petitioners therein) for exercising their options under

the scheme. This Court observed as under:-

“22. Once it is not disputed that the writ petitioners were in service

at the time when the relevant SRO had been issued then there

was no requirement of the scheme that the school would be

required to give individual notices to the writ petitioners for

exercising their option for the pension scheme and also for asking

the writ petitioners to refund the employees contribution of CPF at

that stage. Moreover, when the notice or knowledge of the

pension scheme can be reasonably inferred or gathered from the

conduct of the writ petitioners in the ordinary course of business

and from surrounding circumstances, then it would constitute

sufficient notice in the eyes of law. Reliance in this behalf can

conveniently be placed upon the judgment of the Hon’ble

Supreme Court in Pepsu Road Transport Corporation, Patiala

vs. Mangal Singh and Others (2011) 11 SCC 702 wherein it has

been held as follows:

“52. The respondents in all these appeals, before us, have made

a claim for pensionary benefits under the Pension Scheme for

the first time only after their retirement with an unreasonable

delay of more than 8 years. It is not in dispute, in some appeals,

that the respondents never opted for the Pension

Scheme for their alleged want of knowledge for non-

service of individual notices. In other appeals, although

respondents applied for the option of the Pension Scheme

but indisputably never fulfilled the quintessential conditions

envisaged by the Regulations which are statutory in nature.

53. The learned counsel for the respondents in support

of their contention for want of knowledge of the Pension

Scheme due to non-service of individual notices relied on the

decision of this Court in Dakshin Haryana Bijli Vitran Nigam v.

Bachan Singh, (2009) 14 SCC 793. The said decision is clearly

distinguishable on facts. In that case, the appellant, Haryana

State Electricity Board, had issued instructions dated

23.06.1993 and circular dated 09.08.1994 in order to provide

an option to the employees for pensionary benefits in lieu

of their work charged service with an express condition

of noting of instructions from all the employees and

acknowledging the receipt of the letter. In these appeals,

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before us, there is no such condition of noting from the

employees or serving individual notices in the Pension Scheme

or Regulations. Therefore, in our opinion, Bachan

Singh's decision will not assist the respondents.

54. In our view, in the facts and circumstances of the present

case and in view of absence of such condition in the scheme, it

is not necessary for the Corporation to give an

individual notice to respondents for exercising of option

for pension Scheme and also for asking respondent to refund

the employers contribution of C.P.F. at each stage.

Furthermore, when notice or knowledge of the Pension Scheme

can be reasonably inferred or gathered from the conduct of the

respondents in their ordinary course of business and from

surrounding circumstances, then, it will constitute a

sufficient notice in the eyes of law.

55. In Union of India v. M.K. Sarkar, (2010) 2 SCC 59, this

Court has held: (SCC p.68, paras 21-23)

“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 the 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

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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.

23. This Court considered the meaning of "notice" in

Nilkantha Sidramappa Ningashetti v. Kashinath

Somanna Ningashetti, AIR 1962 SC 666. This

Court held: (AIR p. 669, para 10)

"10. We see no ground to construe the

expression `date of service of notice' in Column 3 of

Article 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."

56. Regulation 4 (iii) of the Regulations is a deeming provision

to the effect: firstly, if an employee fails to exercise his option

within a period of 6 months from the date of issue

of these Regulations and; secondly, even on exercise

of option, if an employee fails to refund the amount of

advance taken from employers contribution of the C.P.F.

within 6 months from the date of issue of these Regulations,

then it shall be deemed that employee has opted to continue for

the existing C.P.F. benefit. Therefore, the failure on the part of

the respondents to opt for the Pension Scheme and refund

the advance taken from the employer’s contribution of

C.P.F. will disentitle them from claiming any benefit under

the Pension Scheme. Therefore, we cannot sustain the

Judgment and order passed by the High Court.”

23. It was further held that it cannot be laid down as a general

rule that each and every circular/instruction issued by the Employer

giving additional monetary benefits to the retired employees must be

published in newspaper and that in the absence of such publication or

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personal communication to the retired employee would entitle him to

seek intervention of the Court after lapse of many years.

24. In view of the aforesaid exposition of law, it can safely be

concluded that once the notification is published in the official gazette,

then the same is a notice to all the persons concerned and, therefore,

there is no further requirement of individual service of a general

notification on every member of the public and interested person(s) can

acquaint himself with the contents of the notification published in the

gazette.

25. Therefore, we have no hesitation in concluding that the

petitions filed by the writ petitioners were itself not maintainable as the

same were entirely based on the plea of ignorance of the scheme 1996

which admittedly had been published in the gazette in accordance with

law. We further conclude that once the notification had been published in

the official gazette there was no further requirement of individual service

of a general notification on the writ petitioners.

26. The learned counsel for the writ petitioners would, however,

argue that the cut-off date of the amended scheme was itself ultravires

and reliance in this behalf has been placed upon the judgment of the

Division Bench of the Kerala High Court in The Union of India and

another versus A.K.Jayappan and others, decided on 05.03.2013,

whereby the Division Bench upheld the findings of the learned writ Court

and held that proviso to Clause 11(3) of the scheme that had been added

by GSR No.134 dated 28.02.1996 with effect from 16.03.1996 was only

prospective in nature. It was further pointed out by the learned counsel

for the respondents that the aforesaid judgment is now pending

consideration before the Hon’ble Supreme Court.

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27. Indisputably, the writ petitioners have not challenged the cut-

off date, therefore, the question arises as to whether the writ petitioners

can derive any benefit on the basis of the aforesaid judgment without

there being any specific pleading or relief sought in this behalf in the

petition.

28. It is more than settled that the Court cannot travel beyond

the pleadings and relief sought. This view of ours is fortified by the

judgment of the Hon’ble Supreme Court in State of J.&K. & Anr. versus

Ajay Dogra AIR 2011 SC 1830. It is apt to reproduce paras 14, 15, 16,

22 and 23 of the judgment herein:-

"14. A perusal of the writ petitions would prove and establish that the

only prayer made in those writ petitions was to grant relaxation to the

criteria and standard of physical conditions prescribed for and required

to be fulfilled. In aforesaid writ petitions, neither the validity of Rule 176

with regard to physical conditions were challenged nor such conditions

prescribed in the advertisement were challenged on the ground of its

validity contending inter alia that there is no nexus of the said conditions

with the object sought to be achieved. We find that the physical

conditions prescribed in the advertisement are in consonance with Rule

176 of the Police Rules which are statutory Rules. No where in the

pleadings, it is stated that such conditions prescribed are illegal or

invalid. Constitutional validity of the aforesaid Rule was never

challenged in any of the writ petitions.

15. The High Court, however, without there being any pleading in that

regard went b eyond the pleadings and held that such physical

conditions laid down are bad and arbitrary as what has been prescribed

have no nexus with the object sought to be achieved.

16. The aforesaid decision rendered by the High Court is contrary to

and inconsistent with the law laid down by this Court in the case of V.K.

Majotra v. Union of India & Ors., reported in (2003) 8 SCC 40 : (AIR

2003 SC 3909 : 2003 AIR SCW 4504). In the said decision also what

was urged before this Court was neither raised in the pleadings nor it

was urged before the High Court by any of the parties to the writ

petition. In the said case, the issue was as to whether a person not

having judicial experience could be appointed as Vice Chairman of the

Central Administrative Tribunal. This Court found that the aforesaid

issue was not raised in the writ petition and similarly, vires of the section

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was also not challenged. This Court in the aforesaid context, held as

follows:-

8. .......It is also correct that vires of Sections 6(2)(b), (bb) and (c)

of the Act were not challenged in the writ petition. The effect of

the direction issued by the High Court that henceforth the

appointment to the post of Vice Chairman be made only from

amongst the sitting or retired High Court judge or an advocate

qualified to be appointed as a judge of the High Court would be

that Sections 6(2)(b), (bb) and (c) of the Act providing for

recruitment to the post of Vice Chairman from amongst the

administrative services have been put to naught/obliterated from

the statute book without striking them down as no appointment

from amongst the categories mentioned in clauses (b), (bb) and

(c) could now be made. So long as Sections 6(2)(b), (bb) and (c)

remain on the statute book such a direction could not be issued

by the High Court.........."

In paragraph 9 of the said decision, this Court has discussed the issues

in the following terms:-

“9. We are also in agreement with the submissions made by the

counsel for the appellants that the High Court exceeded its

jurisdiction in issuing further directions to the Secretary, Law

Department, Union of India, the Secretary, Personnel and

Appointment Department, Union of India, the Cabinet Secretary

of the Union of India and to the Chief Secretary of the U.P.

Government as also to the Chairman of CAT and other

appropriate authorities that henceforth the appointment to the

post of presiding officer of various other Tribunals such as

CEGAT, Board of Revenue, Income Tax Appellate Tribunal etc.

should be from amongst the judicial members alone. Such a

finding could not be recorded without appropriate pleadings and

notifying the concerned and affected parties."

17 to 21. ...............

22. In our considered opinion, the ratio of the aforesaid decisions of this

Court are squarely applicable to the facts of the present case. There

was no challenge to the constitutional validity of Rule 176 of the Police

Rules so far as it relates to prescribing physical conditions regarding the

height and the chest. The stipulations in the advertisement regarding

standard of physical condition was also not challenged in the Writ

Petition. The High Court was not justified in going into the validity of the

aforesaid criterion in absence of any such challenge. The High Court

also has not specifically declared the Rule prescribing minimum height

standard and chest standard ultra vires and, therefore, so long as that

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Rule exists in the statute book, no such direction as issued by the High

Court could be issued. Consequently, the directions issued by the High

Court in the present case are required to be set aside.

23. We, therefore, hold that the High Court was not justified to decide

the validity of the aforesaid Rule and the advertisement without there

being any challenge to the same. We also hold that it was not

appropriate for the High Court to set aside the said conditions which are

mandatory in nature."

29. The Hon’ble Supreme Court in Bachhaj Nahar versus

Nilima Mandal & Ors. AIR 2009 SC 1103 held that the Court cannot

make out a case not pleaded and grant relief not sought for. It is apt to

reproduce para 12 of the judgment herein:-

"12. It is thus clear that a case not specifically pleaded can be

considered by the court only where the pleadings in substance, though

not in specific terms, contains the necessary averments to make out a

particular case and the issues framed also generally cover the question

involved and the parties proceed on the basis that such case was at

issue and had led evidence thereon. As the very requirements indicate,

this should be only in exceptional cases where the court is fully satisfied

that the pleadings and issues generally cover the case subsequently

put forward and that the parties being conscious of the issue, had led

evidence on such issue. But where the court is not satisfied that such

case was at issue, the question of resorting to the exception to the

general rule does not arise. The principles laid down in Bhagwati

Prasad and Ram Sarup Gupta (supra) referred to above and several

other decisions of this Court following the same cannot be construed as

diluting the well settled principle that without pleadings and issues,

evidence cannot be considered to make out a new case which is not

pleaded. Another aspect to be noticed, is that the court can consider

such a case not specifically pleaded, only when one of the parties

raises the same at the stage of arguments by contending that the

pleadings and issues are sufficient to make out a particular case and

that the parties proceeded on that basis and had led evidence on that

case. Where neither party puts forth such a contention, the court cannot

obviously make out such a case not pleaded, suo motu."

30. The aforesaid being the settled position of law, it can safely

be concluded that this Court cannot travel beyond the pleadings and

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relief and cannot therefore grant relief which has neither been pleaded

nor claimed in the writ petitions.

31. Having observed so, we find merit in these appeals and the

same are accordingly allowed and the judgment passed by the learned

writ Court is set a side, leaving the parties to bear their own costs.

Pending application (s), also stand disposed of. The Registry is directed

to place a copy of this judgment on the files of connected matters.

(Mansoor Ahmad Mir),

Chief Justice.

Tarlok Singh Chauhan),

July 22, 2015. Judge.

(krt)

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