BOARD OF SECONDARY EDUCATION Vs. VASANT GANESH VAIDYA

JUDGEMENT

(1.) THIS is an appeal directed against the order of the learned Single Judge of this Court dated 22-8-1996 passed in Writ Petition No. 4379/91, whereby the learned Single Judge has allowed the petition and directed the Board to allow the respondent/petitioner to opt for his pension and fix his pension and start paying the same within a period of one month. The petitioner shall refund his provident fund in accordance with the Regulations.

(2.) THE brief facts which are necessary for disposal of the appeal are that the respondent/petitioner had filed a petition under Article 226 of the Constitution for grant of benefit of pension scheme which was brought into force w. e. f. 1-4-1988 for all employees, who had already retired or would be retiring after publication of the Pension Scheme in the M. P. Raj Patra dated 10-5-1991. The benefit of the pension scheme was not extended to the petitioner/respondent only on the ground that he retired on 1-11-1987 prior to the date 1-4-988, from that date the pension scheme was brought into force.

(3.) THE Madhya Pradesh Board of Secondary Education was constituted under the Madhya Pradesh Madhyamik Shiksha Adhiniyam, 1965 (hereinafter referred to as the "act" in brevity ). Section 17 (4) (b) of the Act provides that qualification, conditions of appointment and service and scale of pay of an officer and servant of the Board. Sub-section (3) of Section 28 gives power to the Board to frame Regulations. The Board, in exercise of the aforesaid power framed the Regulations known as Madhya Pradesh Board of Seconday Education Employees (Pension) Regulations, 1991 (hereinafter referred to as the "regulations of 1991" in brevity ). By virtue of this Regulation, a pension scheme was introduced for the employees w. e. f. 1-4- 1988. Prior to this pension scheme, the Board had a provident fund scheme in force. But, by this Regulation 1991, the pension scheme was introduced and a cut off date was fixed from 1-4-1988. The respondent/petitioner made a demand for grant of benefit of new pension scheme, but he was denied the benefit of the new pension scheme because he had already retired on 1-11- 1987 prior to cut off date i. e. 1-4-1988. Hence, the petitioner approached this Court by filing a writ, petition and seeking a declaration that he may be also given the benefit of new pension scheme irrespective of the fact that he retired before the cut off date i. e. 1-4-1988 and fixation of cut off date is arbitrary. In this connection, reliance was placed on the decision of Hon'ble Supreme Court in the case of D. S. Nakara and Ors. v. Union of India, AIR 1983 SC 130. The Board submitted that the cut off date is 1-4-1988; therefore, those employees who already retired prior to 1-4-1988, they cannot get the pensionary benefit under the scheme. It was also pointed out that the petitioner/respondent was member of the Contributory Provident Fund and that scheme was in force at the time when the petitioner retired. It is submitted that after his retirement, he already collected his provident fund amount and after a gap of four years, he cannot be heard that he should have been granted the benefit of the Pension Scheme, It is also pointed out that since the scheme was approved by the State Government, therefore, the State of Madhya Pradesh is a necessary party because the State alone can justify the enforcement of the pension scheme w. e. f. 1st April, 1988. It is also placed on record that earlier a resolution was passed on 7-5-1984 in the Joint Meeting of the Executive and Finance Committee of the Board to implement the pension scheme w. e. f. 1-4-1985 and the matter remained under correspondence for quite some time. However, ultimately, the scheme could only be finalised and the cut off date was mentioned as 1-4-1988. The stand of the respondent was that the cut off date 1-4-1988 was fixed in view of the financial position of the Board and the funds available for giving pension benefits. However, no further material than this was placed. Therefore, the only plea was that because of non-availability of fund, the cut off date i. e. 1-4-1988 was fixed. Therefore, in this back ground, what we have to consider is whether the cut off date i. e. 1-4-1988, which is fixed in the Regulation, is reasonable or is arbitrary so as to being struck down. The Regulation 4 of the Regulations, which has a bearing on the subject, reads as under :