Gujarat Janvadi Karmachari Union vs Ahmedabad Municipal Corp. and Others

V.M. Sahai, J.

1 We have heard learned Counsel Mr. Prabhakar Upadhyay for the Appellant.

2 This Letters Patent Appeal has been filed challenging order dated 4.2.2011 passed by learned Single Judge in Special Civil Application No. 4356 of 2004.

3 The Appellant filed the writ petition claiming that the members of the Appellant Union are entitled for General Provident Fund (GPF) Scheme, which provides for grant of pension.

4 The Scheme came on 2.3.1984 giving effect from 1.1.1983. It provided that all those employees who had joined the Municipal Corporation on or after 1.1.1983, the Pension Scheme would be compulsory for them. The Scheme further provided that those employees who were appointed prior to 1.1.1983 were required to give their option latest by 29.2.1984 and the time limit fixed was not extended for extending option.

5 After 20 years, the Appellant Union filed the writ petition stating that the employees who were its members and had worked from 1983 to 1989 have not been given granted pension. This statement is a very vague statement made in the writ petition and the learned Single judge has, therefore, dismissed the writ petition after recording the following findings:

Prima facie the contention appears to be attractive but upon close scrutiny it appears that the document upon which the reliance has been placed by the learned Counsel from page 94 onwards up to 103, they are all of the period 1991 and further those employees were also prior to the said period. As such in absence of the sanction granted by the Regional Provident Fund Commissioner for shifting of the PF Scheme from EPF to GPF, the contention cannot be examined on the mere premise that such is permissible as prayed in the petition. Even if the matter is to be considered on the aspects of differential treatment, then also it is obligatory on the part of the Petitioner to prove that the employees in question in the petition are similarly situated with those, who were considered for shifting of the Scheme by the Municipal Corporation at the relevant point of time.

Upon the query put by the Court, the learned Counsel appearing for the Petitioner, at the initial stage, during the course of submission, had declared that the employees in question are early 1996 appointees, whereas during the course of dictation of the order, the learned Counsel altered the statement and stated that some members are also appointed in the years 1983 to 1989. As such the statement is as vague as anything, without putting material on record and such type of argument, without any support of authenticated evidence cannot be considered. Further, if the correspondence upon which the reliance placed is considered, it appears that they were relating to certain employees, who demanded for shifting of the scheme and the same came to be considered on 25.1.1991. If the employees, who are appointees of 1996 onwards are to be considered, they cannot be said to be similarly situated. Therefore, the alleged ground of discrimination would not be available at all. Further, even if it is considered that some of the employees were of 1983 to 1989 onwards, no material is produced on record to show that those employees, whose grievance is sought to be canvassed, at any point of time, during that period of 1991, made any application for shifting of the Scheme. If the employee concerned at the relevant point of time had not applied for shifting of the PF scheme and thereafter has allowed themselves to be as Members of EPF Scheme for a long time i.e. roughly for about 14 years, if considered from the filing of the Petitioner and by now if considered, would be about 20 years, it cannot be said that they are similarly situated. If the employees concerned are not similarly situated, the ground of discrimination can be said as of non-existence premise.

9 Apart from the above, it deserves to be recorded that as observed earlier, if the classification is based on rational criteria, it cannot be said that there is any discrimination by the Corporation on the ground as sought to be canvassed, as observed, vide order dated 9.4.2004.

Mr. Upadyay, learned Counsel had attempted to contend that as per the circular of the Corporation those employees, who have joined service after 1983 were compulsorily to join GPF and not EPF Scheme and, therefore, the contention is that if any mistake has been committed by the Corporation, the same is required to be rectified.

It appears that it is not a policy, which was not known to the Petitioners. Even if such policy exists, however, the Petitioners, by their own volition, have become members of EPF and has continued for a long period, thereafter the members of the Petitioner Union cannot be heard to say that now another Scheme of GPF is more beneficial, they should be allowed to shift the Scheme. No right cannot be allowed on the ground as sought to be canvassed, more particularly on account of the conduct with open hands throughout by the members of the Petitioner Union.

The additional aspects in the present case is that the Petitioners themselves have allowed being Members of EPF Scheme and deduction from the salary has been made as if the members of EPF Scheme all throughout and once a person is admitted as Member of EPF Scheme, no right is said to have vested in him for shifting of the PF Scheme and more particularly because, at a late stage, one finds another GPF Scheme is to endure better benefits. Once the party has altered his position, he cannot be heard to shifting of the scheme as of right as sought to be canvassed.

We are in agreement with the view taken by the learned Single Judge. This appeal is devoid of any merits and is accordingly dismissed.