Arun Mishra, C.J.—The appeals and also the writ petitions involve identical questions. All such similar matters have been listed for analogous hearing. Hence, these are being decided by this common judgment and order. Large number of cases have been referred to us by a Division Bench of this Court because of conflict of opinion. One such order has been passed on 16th January, 2008 by the said Division Bench in APO No. 119/2007. In view of the conflicting decisions of this Court, the cases have been referred in entirety to the larger Bench. Question involved in these matters is, whether employees have to be given an opportunity to switch over to the Pension-cum-Gratuity Scheme, in view of change made in para 17(3) of Revision of Pay and Allowances 1990 and in para 13 of Revision of Pay and Allowances 1998.

2. The facts, in short, are that the petitioners are teachers of recognised non-government educational institutions in the State of W. Ben. From time to time various service benefits have been conferred on the employees of such institutions and revision of pay rules have revised their salary with rider of reduction in age of superannuation and revised higher benefit on retirement. Before 20th September, 1967, the teaching and non-teaching staff of the Secondary Schools were only entitled to the benefit of Contributory Provident Fund by way of retiral benefit.

3. Earlier Death-cum-Retirement Scheme came into force with effect from 1st April, 1966. In the year 1981, revision of pay scales was effected by way of Revision of Pay and Allowances, 1981 (in short ROPA 1981). In the year 1985, Death-cum-Retirement Benefit Scheme, 1981 was framed (in short DCRB Scheme, 1981). In that scheme, either of the two benefits was available, CPF-cum-Gratuity or Pension-cum-Gratuity. Age of retirement was 65 years at the relevant time with certain riders. Then came another Revision of Pay and Allowances, 1990 (in short ROPA 1990) on the basis of the recommendation of a Pay Commission. On opting for revised pay, consequences followed as to the age of superannuation to be 60 years and no right of extension upto 65 years with right to receive pension at par with government employees and enhanced gratuity as provided in para 17 of ROPA 1990. Then came Revision of Pay and Allowances, 1998 (in short ROPA 1998). Para 13 of ROPA 1998 was substituted to make the basis of option furnished under DCRB Scheme, 1981 for receipt of benefit of Pension-cum-Gratuity or CPF-cum-Gratuity. The provisions of para 17 of ROPA 1990 were amended to accord with para 13 of ROPA 1998 retrospectively in the year 2007. The State Government invited fresh option under DCRB Scheme, 1981 on 16th December, 1991 and not thereafter.

4. Petitioners have filed various petitions submitting that once they had exercised options under ROPA 1990, by virtue of the provisions contained in para 17 thereof they became automatically entitled to the benefit of pension at par with the State Government employees as well as enhanced amount of gratuity. They have also questioned substitution of para 17(2) under ROPA 1990 with retrospective effect. In addition they have also questioned the legality of the amendment of ROPA 1998 made on 13th July, 1999 whereby provisions of para 13 of ROPA 1998 were substituted. They also submitted that the Memo dated 16th December, 1991 inviting the revised option under DCRB Scheme, 1981 was not applicable and moreover it was not widely circulated, as such they were not aware of the same.

5. Some of them have contended that in spite of prayer made to clarify the amount of CPF to be refunded by them, they were not informed how much amount was required to be deposited by them towards employers share of contributory fund along with interest and additional interest. It was also submitted that once they had opted under ROPA 1990, they automatically became entitled to benefit of Pension-cum-Gratuity and in some cases, petitioners have applied and opted for revised pay scale under ROPA 1998 upto June, 1999, before substitution of para 13 on 13th July, 1999. In spite of that, they are being deprived of the benefit of Pension-cum-Gratuity in illegal and arbitrary manner.

6. The stand of the State Government, in short, is that it was necessary to express option under DCRB Scheme, 1981. After introduction of ROPA 1990 opportunity was given to exercise fresh option, which was not availed of by the petitioners. The provisions of para 17 of ROPA 1990 did not confer right to claim pension at par. That depended upon option exercised under DCRB Scheme, 1981. The substitution of para 13 of ROPA 1998 and para 17 of ROPA 1990 was within its competence. The petitions have been filed belatedly to change option exercised in terms of DCRB Scheme, 1981. No case for interference is made out. The Court cannot enlarge time to file option. Petitioners accrued right has not been taken away. The petitions deserve to be dismissed. Thus, appeals filed by the State ought to be allowed.

7. It is admitted fact that no option had been invited by the State Government after substitution of para 13 of ROPA 1998 w.e.f. 13th July, 1999 and after amendment made on 16th May, 2007 retrospectively w.e.f. 6th March, 1990 in para 17 of ROPA 1990.

8. Considering various issues involved in the matters, we framed the following questions for our determination:

i) Whether a person who has opted for revised pay scale under ROPA, 1990 becomes entitled to pension by virtue of operation of para 17 of ROPA 1990

ii) Whether an incumbent who has exercised an option under ROPA 1990 can still be conditioned to the rider of option to be exercised under W. Ben. Recognised Non-Government Educational Institution Employees DCRB Scheme, 1981, particularly in view of the amendment effected in paragraph 17(2) vide G.O. 226-SE (B)/1M-102/98, dated 16th May, 2007 and whether the amendment made in paragraph 17(2) can be said to be valid law; that too with retrospective effect

iii) Whether para 13 of Revision of Pay & Allowance Rules 1998, as amended by Notification dated 13th July, 1999 relating to the employees of W. Ben. Recognized Non-Government Aided Institutions can be said to be valid in law

iv) Whether after amending the para 13 of ROPA 1998 on 13.07.1999 and para 17 of ROPA 1990 in 2007, it was necessary to give fresh opportunity to employees to revise option under W. Ben. Recognized Non-Government Educational institution Employees (Death-cum-Retirement Benefit) Scheme, 1981

v) Whether the time-limit fixed under the DCRB Scheme, 1981 to submit option can be extended in suitable cases

9. It was submitted by the learned Advocate General that opportunity was given in the year 1991 to revise option under DCRB Scheme, 1981 and option once exercised was final and Government has made an effort from time to time to bring the pensionary benefits admissible to such employees at par with the Government employees by issuing memoranda. The view taken by a Division Bench of this Court in State of West Bengal and Others Vs. Biswanath Koley, , is not correct, while laying down to the effect that option exercised under ROPA 1990 is enough to avail benefit of Pension-cum-Gratuity notwithstanding the option exercised under DCRB Scheme, 1981 and by virtue of Memo dated 16th December, 1991, the employees cannot be deprived of the benefit of para 17 of ROPA 1990 as they have opted for reduced age of superannuation.

10 Learned Advocate General also submitted that it was open to an employee under DCRB Scheme, 1981 either to opt for the benefit of CPF-cum-Gratuity or for Pension-cum-Gratuity. Once option is exercised the same is final and cannot be altered and that has been precisely reflected in the retrospective amendment made in 2007 in para 17 of ROPA 1990 and substituted para 13 of ROPA 1998 with effect from 13th July, 1999. Thus, the petitioners cannot be said to be entitled to any relief having failed to exercise revised option as per Memo dated 16th December, 1991 within a period of three months to switch over to Pension-cum-Gratuity. The period specified in the memorandum cannot be extended by the Court. It was finally contended by the learned Advocate General that the petitioners cannot be said to be entitled to any relief.

11. It was submitted by learned counsel on behalf of the employees that the view taken by the Division Bench of this Court in Biswanath Koley (supra) has been affirmed by the Honble Supreme Court and the decision of a Division Bench of this Court in Bijoli Bhattacharya Vs. State of West Bengal, , has also been set aside by the Honble Supreme Court in SLP No. 4928 of 2003 decided on 6th August, 2004. It has been held there that further opportunity to exercise option ought to have been given as the appellant was not keeping well and as such could not exercise an option. It was further submitted that the decision dated 25th March, 2007 in Chhabi Roy vs. State of West Bengal by a Division Bench of this Court has been set aside by the Honble Supreme Court and the case has been remitted to this Court for consideration in the light of the decision of the Honble Supreme Court in Bijoli Bhattacharya (supra) decided on 6th August, 2004. Thus the very basis on which various reference orders have been passed stands wiped off.

12. It was further submitted by learned counsel for the employees that there was material change in service conditions brought about by ROPA 1990. The age of superannuation was reduced from 65 years to 60 years without right to avail extension of service upto 65 years once having opted for revised pay scale. However, there was accrual of the benefit to receive pension at par with the State Government employees and enhanced amount of gratuity as per provisions in para 17 of ROPA 1990 which automatically followed. It was not open to amend, vide Memo dated 16th May, 2007, provisions contained in para 17 with retrospective effect from 6th March, 1990. Automatically right accrued to the petitioners once they opted for revised pay to obtain Pension-cum-Gratuity as envisaged in para 17 at par with Government employees under ROPA 1990. Such accrued right could not have been taken away as the petitioners had changed their position and acted to their detriment by accepting the reduced age of superannuation of 60 years with waiver of right to avail extension in service upto 65 years. While maintaining reduced age of superannuation, other benefits could not have been taken away and it was also not open to the State Government to relegate them to the option exercised under the DCRB Scheme, 1981. Provisions in para 17(2) of ROPA 1990 could not have been amended with retrospective effect in a manner that would affect their accrued rights. Before substitution of para 13 of ROPA 1998 on 13th July, 1999, similar benefits were available which have been taken away by substituted provision. The substitution so made in para 13 of ROPA 1998 was also in derogation to the rights conferred as per provisions of para 17 of ROPA 1990.

13. It was also submitted that it was necessary to invite revised option under DCRB Scheme, 1981, after the amendment was made by substitution of para 13 of ROPA 1998 and para 17 of ROPA 1990 in the years 1999 and 2007 respectively, which was not invited, particularly when the amendments were drastic in nature. The well-reasoned view taken by this Court in Biswanath Koley (supra) has been affirmed by the Supreme Court. Similar grounds were raised in the SLP filed before the Honble Supreme Court. They cannot therefore be raised now before this Court.

14. It was also submitted that the Memo dated 16th December, 1991 inviting revised option under DCRB Scheme, 1981 was not applicable to those who had opted for ROPA 1990, and even if it were applicable, it was not widely circulated amongst the incumbents and as such they could not come to know of the same and consequently could not exercise options. Some of them had exercised option but it had not been acted upon. It was also contended that in spite of prayer made they were not intimated how much amount was required be refunded to the Government towards employers share of contributory provident fund along with interest and additional interest. Hence they cannot be deprived of the benefit as envisaged in para 17 of ROPA 1990 for availing Pension-cum-Gratuity. Thus they had been illegally deprived of seeking Pension-cum-Gratuity.

15. It was also submitted that once options had been exercised in the manner prescribed under ROPA 1990, therefore, even if they had not furnished options in terms of the Memorandum dated 16th December, 1991, they could not be deprived of the benefits as envisaged under para 17(2) of ROPA 1990.

16. Before dilating upon various submissions, it is appropriate to take note of provisions prevailing as to conditions of service, retirement and revision of pay scales, so as to find out the effect of ROPA, 1990 and ROPA 1998 and whether it was necessary to invite fresh options after substitution of para 17 and para 13 respectively of the aforesaid provisions.

17. The Government of W. Ben. in terms of the Finance Department resolution introduced the Death-cum-Retirement Benefit Scheme. The retiral benefits of teaching and non-teaching staff of the schools were governed as per the scheme which came into force w.e.f. 1st April, 1966.

18. The Government of W. Ben., Education Department accorded approval to the recognised Non-Government Secondary Institutions Pension Rules. The said rules were introduced vide Memo dated 18th July, 1968.

19. Finance Department, Government of W. Ben. set up a Second Pay Commission to examine the structure of emoluments and conditions of service of the teaching and non-teaching staff of the secondary schools resulting in revision of pay and allowance in 1981 vide Memo dated 31st July, 1981.

20. On the basis of the recommendation of the Second Pay Commission, revised pay was made applicable as per ROPA 1981. Those who were in service on 31st March, 1981 had an option either to retain their prevailing scale of pay and existing terms and conditions of service or to opt for the revised scales of pay together with the revised terms and conditions of service, as may be determined by the State Government.

21. In the year 1985, the DCRB Scheme, 1981 was introduced by the Government of West Bengal. It was made applicable to the whole time approved teaching and non-teaching employees of the non-Government/Sponsored/Aided Institutions who were in active service on or after 1st April, 1981. It was not applicable to the incumbents who retired from service prior to 1st April, 1981. Provisions for family pension were also made. Persons who were in service on 1st April, 1981 had an option either to continue to be governed by the existing rules governing retiral benefits or to come under the DCRB Scheme, 1981.

22. As per clause 5 of the DCRB Scheme, 1981, option was to be exercised by 90 days from the date of issue of the same. It was also provided as per clause 5(c) that if any employee does not opt or fail to opt within the prescribed time limit, the pensionary benefits as admissible prior to 1st April, 1981 would be applicable in his case.

23. As per clause 5 of the DCRB Scheme, 1981, from date of notification i.e. 15th May, 1985, option was required to be exercised within 90 days. Clause 5(c) of the DCRB Scheme, 1991 provided that:

5(c) If any employee does not opt or fail to opt within prescribed time limit, the pensionary benefits as admissible prior to 1.4.81 would be applicable in their case.

24. As per para 4 Chapter I of the DCRB Scheme, 1981, the employees were entitled to either Pension-cum-Gratuity or CPF-cum-Gratuity as per option exercised by them. Provisions contained in para 4 of Chapter I is quoted below:

4 The following retirement benefits shall be admissible under this Scheme: Either Pension (including Family Pension)-cum-Gratuity at rates as laid down in this Scheme or Contributory Provident Fund at the rate of 8.33% (from 1.4.81)-cum-Gratuity according to option.

25. It is significant to mention that at the time when the DCRB Scheme, 1981 was brought into force, the age of retirement was 65 years and dispute was going on whether the employees of such institutions could be retired at the age of 60 years. This Court had restrained the Government from retiring some employees at the age of 60-62 years. Hence, it was decided by the Government of West Bengal vide Memo dated 31st March, 1986 that employees of Government and non-Government Primary and Secondary Schools including Madrasahs will retire at the age of 60 years but they will be allowed extension of service on year to year basis upto the age of 65 years, subject to the conditions that they are physically fit and mentally alert. It is apparent from the order of the State Government that employees could continue in the service before opting for ROPA 1990 upto 65 years, subject to the conditions that they were physically fit and mentally alert. Such extension of service was subject to sanction/approval by the competent authorities and would be subject to the ultimate result of the appeal(s) pending before this Court.

26. Thus, the employees as per the said Memo dated 3rd March, 1986 were having right to continue up to 65 years subject to their physical fitness and mental alertness in case of opting for the revised pay scale with effect from 1st April, 1981 as per recommendation made by the Pay Commission established in the year 1977.

27. The pay and conditions of service underwent revision in 1990 when the State Government on the basis of the recommendation of the Third Pay Commission made in the year 1987 framed revised scales of pay for teaching and non-teaching employees. The scales of pay were revised with effect from 1st April, 1981. The Government of West Bengal vide Memo. dated 7th March, 1990 issued ROPA 1990. The options were to be exercised within 90 days as per para 5 of ROPA 1990 to avail the benefit of revised pay scale. Significant changes were brought about by ROPA 1990. Options once exercised to avail benefits of the revised pay scale, conditions of service necessarily would stand changed as provided in para 17. Thus:-

(1) The age of superannuation of all categories of teaching and non-teaching employees who elect to come over to revised scales of pay shall be fixed at 60 years, as recommended by the Third Pay Commission.

(2) Para 17(2) of ROPA 1990 further provided that the teaching and non-teaching employees of an aided/sponsored educational institution or organization who will opt for the revised scales of pay shall be allowed to enjoy pensionary benefits including dearness relief at par with the State Government employees. Maximum amount of gratuity shall be raised from Rs. 36,000/- to Rs. 60,000/-.

28. Thus, an employee opting for revised scale of pay under ROPA 1990 would enjoy the pensionary benefit at par with the State Government employees and due to availing the revised scale of pay, the concerned employee shall have to retire at the age of 60 years and he had to undertake in terms of option that he would not claim any extension to continue in service upto the age of 65 years, which benefit was otherwise available as per memo dated 3rd March, 1986.

29. Option form which was part of ROPA 1990 as Annexure VIII-B was required to be filed by an employee to avail benefit of revised pay scale as per para 5(3) of ROPA 1990 and he had to undertake that he will not apply for extension of age of superannuation. An employee who opted under ROPA 1990 lost the benefit of retiring at 65 years of age, which was otherwise available on extension. The form of option is quoted below:

ANNEXURE VIII-B

Form of Option

[To be used by those governed by the first proviso to para 5(2) of the order) I...............have read carefully the contents of G.O. No. 33-Edn. (B) dated 7.3.1990 and I agree to abide by the terms and conditions stipulated therein and I will not apply for extension of my service on attaining the age of superannuation prescribed in para 17 of the Order.

(i) I....................hereby elect for the revised scale of Rs.............of my, substantive/officiating/temporary post with effect from 1st January, 1986.

(ii) I.....................hereby elect to continue in the existing scale of..........pay of Rs...........of ...........my substantive/officiating/temporary post mentioned below till..........19.............and to come under the revised scale of Rs...........with effect from.............19.........

Station

Signature

Date:

Name

Designation

(substantive/Officiating/Temporary

Name of the Institution

District

Signature

Head of the Institution

Note: This option once exercised is final. The employees should not to come under the revised scale on any date between 1st January, 1986 and 1st January, 1990, after reading carefully the provisions of G.O. No. 33 Edn. (B) dated 7.3.1990. No change of option shall be allowed under any circumstances.

(emphasis supplied by us)

30. The age of superannuation was reduced to 60 years as per recommendation of the Third Pay Commission and it was also ordered that an employee who will opt for the revised scale of pay "shall be allowed their pensionary benefits including dearness relief at par with the State Government employees". Maximum amount of gratuity shall be raised from Rs. 36,000/- to Rs. 60,000/-. Thus, on acceptance of revised scale as per ROPA 1990 consequences automatically followed of reduced age of superannuation of 60 years and also that the employee shall be allowed to enjoy pensionary benefits including dearness relief at par with the State Government employees along with maximum amount of gratuity to be raised from Rs. 36,000/- to Rs. 60,000/-. Para 17 of ROPA 1990 is as follows:

17. Age of Superannuation and related issues.-(1) Subject to the provisions of para 5, the age of superannuation of all categories of teaching and non-teaching employees who elect to come over to revised scales of pay shall be fixed at 60 years, as per recommendation of the 3rd Pay Commission

(2) The teaching and non-teaching employees of an aided/sponsored educational institution or organisation who will opt for the revised scales of pay shall be allowed to enjoy pensionary benefits including dearness relief at par with State Government employees. Maximum amount to gratuity shall be raised from Rs. 36,000/- to Rs. 60,000/-

31. Para 17(2) of ROPA 1990 had been retrospectively amended by the notification dated 16th May 2007 with effect from 7th March, 1990 to provide that the employees who opt for revised scale of pay shall be allowed to enjoy retirement benefits as per their option exercised in terms of the DCRB Scheme, 1981. Similar provision which was introduced in para 13 on 13th July, 1999 in ROPA 1998 was also introduced in ROPA 1990 also.

32. The reason given for amendment/substitution is that para 17(2) is still in existence, though the general principle is that if a provision/benefit extended by an order is amended on a later date, the same provision/benefit extended by a similar order made earlier stands amended automatically on that date, as para 13 of ROPA 1998 has been amended on 13th July, 1999. This was cited as the reason for substitution of Para 17(2) of ROPA 1990 w.e.f. 7.3.1990. The notification dated 16th May, 2007 is quoted below:

Government of W. Ben.

School Education Department

Budget Branch Bikash Bhavan

Bidhannagar, Kolkata-700 091

No. 226-SE (B)/IM-102/98(Part-III) Dated 16th May 2007.

It has been brought to the notice of this Department that Para 13 of G.O. No. 25-SS(B) dated 12.02.1999 has been amended vide G.O. No. 155-SF(B) dated 13.07.1999 whereas the same provision appearing in Para 17(2) of G.O. No. 33-Edn. (B) dated 07.02.1990 is still existence, though the general principle is that if a provision/benefit extended by an order is amended on a later date, the same provision/benefit extended by a similar order made earlier stands amended automatically on that date.

However, under those circumstances the Government is pleased to take the following amendment in G.O. No. 33-Edn. (B) dated 07.03.1990.

Amendment

In sub-para (2) of Para 17 for the existing entry substitute the following entry:-

The teaching and non-teaching staff of an aided-sponsored educational institution or organization who will opt for the revised scales of pay as per memo No. 33-Edn (B) dated 07.03.1990 shall be allowed to enjoy the retirement benefits as per revised pension order of the Department vide Memo No. 136-Edn (B) dated 15.05.1985 according to the option exercised by them under the W. Ben. Recognized Non-Govt. Educational Institution Employees (D.C.R.B.) Scheme, 1981.

2. This order should be deemed to have taken effect from 07.03.1990.

3. This order issues with the concurrence of Finance Department vide U.O. No. 339 dated 26.04.2007.

4. The Accountant General (A & B), W. Ben. and other concerned are being informed.

Sd/- S.K. Mahapatra

Joint Secretary.

33. As the benefits were increased in ROPA 1990, it appears that to extend benefit to others who had still not opted for ROPA 1990, the State Government vide Memo dated 16th December, 1991 permitted the incumbents who have exercised options under the DCRB Scheme, 1981 promulgated as per Memo dated 15th May, 1985 to change options to Pension-cum-Gratuity. Para 5(a) of the Scheme gave an opportunity to the employees to switch over to revised Pension including Family Pension-cum-Gratuity, subject to the condition that the employers share of contribution together with interest and additional interest be refunded to the Government forthwith.

34. The term forthwith has been explained in the order dated 5th February, 1996 to mean a maximum of 60 days from the date of submission of revised option but it was observed there that the Government may not be very rigid in this regard and allow such refund, only if the employee has submitted revised option in terms of the Memo dated 16th December, 1991 with interest plus additional interest, before the date of superannuation.

35. On the basis of recommendation of the Pay Commission, again, the revision of scale of pay of teaching and non-teaching staff was effected vide Memo dated 12th February, 1999 by ROPA 1998. The word employee as defined in para 3(e) of ROPA 1998 means a member of the teaching and non-teaching staff of the non-Government/Sponsored/Aided educational institutions and other organisations who have opted for the scale of pay as revised in terms of ROPA 1990 and who is enjoying that scale of pay on the 1st January, 1996.

36. Para 13 of ROPA 1998 as notified on 12th February, 1999 provided that the incumbents who will opt for the revised scales of pay shall be allowed to enjoy pensionary benefits including dearness relief at par with the State Government employees. Maximum amount of gratuity was raised from Rs. 60,000/- to Rs. 2,50,000/-. The aforesaid provision was substituted on 13th July, 1999. The provisions of para 13 which remained in force with effect from 12th February, 1999 till its substitution on 13th July, 1999 was the same as para 17(2) of ROPA 1990.

37. Provisions of para 13 had been substituted with effect from 13th July, 1999 to the effect that the teaching and non-teaching employees who will come under the revised scale of pay will be allowed to enjoy the retirement benefit according to the option exercised by them under the DCRB Scheme, 1981, whereas as per para 13 of ROPA 1998 before its substitution the option exercised under DCRB Scheme, 1981 was not relevant for accrual of the retiral benefit of pension and gratuity.

38. Option was required to be exercised, within 180 days from the date of issue of ROPA 1998, as per provision contained in para 6 and option once exercised shall be final. If an employee, who was in service on 31st December, 1995 and to whom the order applies, does not exercise option under the proviso to para 5 of this order, shall be deemed to have elected to be governed by the revised scales of pay with effect from the 1st January, 1996. Para 13 of ROPA 1998 as contained in the Memo dated 12th February, 1999 was similar to the provision contained in para 17 of ROPA 1990. Para 13 of ROPA 1998 before substitution read as follows:

13. The teaching and non-teaching employees of aided/sponsored educational institutions who will opt for the revised scales of pay shall be allowed to enjoy pensionary benefit including dearness relief at par with the State Government employees. Maximum amount of gratuity shall be raised from Rs. 60,000/- to Rs. 2,50,000/- (Rupees Two lakhs Fifty thousand only).

39. Para 13 has been substituted with effect from 13th July, 1999. The substituted provision reads as follows:

13. The teaching and non-teaching employees of Aided/Sponsored Educational Institutions who will come under the revised scale of pay as per memorandum No. 25-SE(B) dated 12.2.1999 will be allowed to enjoy the retirement benefit as per revised pension order of this Department according to the option exercised by them under West Bengal Recognised Non-Govt. Educational Institutions Employees (Death-cum-Retirement Benefit) Scheme, 1981.

40. It is apparent from the provisions made in para 13 before substitution that an incumbent who would opt for revised scale of pay shall be allowed pensionary benefits including dearness relief at par with the State Government employees and entitled to the enhanced amount of gratuity from Rs. 60,000/- to Rs. 2,50,000/-. It is significant to mention that the age of retirement had already been reduced to 60 years under ROPA 1990.

41. Considering the aforesaid provisions, it is clear that ROPA 1990 brought about significant changes. When we interpret provisions of para 17 of ROPA 1990, a bare reading of the un-substituted provisions contained in para 17 of ROPA 1990 make it clear that once option is exercised as per para 5(a) of ROPA 1990 consequences would follow of the reduced age of superannuation and as mentioned in the form of option; at the same time, an optee had to declare that he would not apply for extension of service upto the age of 65 years as envisaged in the order dated 31st March 1986 on attaining age of superannuation of 60 years. In the backdrop of the aforesaid drastic provisions contained in para 17(1) of ROPA, 1990, the beneficial provisions contained in para 17(2) were to the effect that once option was exercised, an employee shall be allowed to enjoy pensionary benefit including dearness relief at par with government employees and enhanced amount of gratuity. The word shall be allowed makes conferral of benefit mandatory sequel to the exercise of option in terms of ROPA 1990. It did not depend upon option exercised under the DCRB Scheme, 1981.

42. When the DCRB Scheme, 1981 was notified in 1985, the provisions of ROPA 1990 were not in force and an employee had the option to continue to draw benefit before introduction of such scheme. He had option to remain out of ROPA 1990 also. In our opinion, the Memo dated 16th December, 1991 was applicable to the incumbents who had not opted for the benefit of ROPA 1990 and wanted to continue in service upto the age of 65 years and continue to draw existing benefit and once option had been exercised under ROPA 1990 as per provisions contained in para 17(1) of ROPA 1990, age of superannuation was reduced to 60 years without any right to apply for extension upto the age of 65 years and there was forfeiture of right to apply for extension of age of superannuation also in view of the option form appended to ROPA 1990. The right had also accrued to the petitioners by submitting option as per para 17(2) of ROPA 1990 for pension at par with Government employees and gratuity, and flowing of the benefit mandatorily is apparent from the expression aforesaid benefits shall follow. The un-substituted provisions contained in para 13 of ROPA 1998 rightly protected existing rights, provided similar benefits in tune with benefits conferred under ROPA 1990 which could not have been taken away. However, the provisions were substituted with effect from 13th July, 1999. Firstly, the provisions could not have been changed so as to take away the accrued or vested right. Secondly, the substituted provisions cannot withstand judicial scrutiny and test of reasonableness under Articles 14 and 16 of the Constitution of India. Moreover, when the provisions of para 13 have been substituted with effect from 13th July, 1999 and enjoyment of the benefit of Pension-cum-Gratuity was made dependent on the basis of option exercised under the DCRB Scheme 1981, in the circumstances, it was absolutely necessary to invite options for switching over from CPF-cum-Gratuity to Pension-cum-Gratuity. Without doing so, the provisions cannot be said to be outcome of reasonable exercise of power and obviously require to be struck down.

43. In similar manner, when the provisions contained in 17(2) of ROPA 1990, had been amended on 16th May, 2007 retrospectively with effect from 7th March, 1990, substitution was obviously made so as to take away vested right with retrospective effect. The amendments so made cannot be said to be valid piece of law and cannot be termed to be a reasonable one and without giving fresh opportunity to the employees to switch over to Pension-cum-Gratuity, the provisions are rendered oppressive in operation.

44. Memo dated 13th July, 1999 substituting para 13 of the ROPA 1998 had the effect of taking away benefit of right accrued under para 17 of the ROPA 1990. However, in respect of para 17 of ROPA 1990 no such amendment/substitution was made before 2007 and it is also clear that large number if employees had exercised the option upto June 1999 and before provision of para 13 was substituted on 13th July, 1999. Till substitution, they were entitled to benefit of pension at par with the State Government employees as well as enhanced amount of gratuity.

45. In our opinion, by way of amendment/substitution of provisions, rights which have accrued cannot be taken away, that to/with retrospective effect. A benefit that has accrued under the existing para 17(2) of ROPA 1990 cannot be taken away by an amendment with retrospective effect or by provisions as contained in substituted para 13 of ROPA 1998.

46. In our considered opinion, though it is open to the Government to change its policy but change in policy must be in conformity with reasonableness and principles of natural justice. With the substitution of para 13 of ROPA 1998 and para 17(2) of ROPA 1990 with retrospective effect, the provisions entailed adverse civil consequences and were derogatory to the accrued rights of the employees. The option exercised under the DCRB Scheme, 1981 could not have been made the basis for determining whether the employees were entitled to benefit of either CPF-cum-Gratuity or Pension-cum-Gratuity. They were made to accept the reduced age of superannuation at 60 years but were granted the benefit of higher pay scale with an assurance that they would be entitled to pension at par with State Government employees and enhanced amount of gratuity. Those who opted for the revised pay scale agreed to retire at the age of 60 years with the impression that their winter years of life would be taken care of with pension at par with the Government employees. The employees having been made to change their position, the Government acted in an arbitrary manner by reversion of the employees to the position that was prevailing before they opted for the revised scale in relation to pension. In order to save such provisions from the vice of arbitrariness, it was necessary to give an opportunity to exercise fresh option for switching over from CPF-cum-Gratuity to Pension-cum-Gratuity, which benefit was otherwise available and had accrued in favour of the employees once they exercised option for revised scale of pay as per provisions contained in para 17(2) of ROPA 1990 and para 13 of ROPA 1998, as the same existed before substitution.

47. It was submitted by the learned Advocate General that by way of substitution of para 13 of ROPA 1998, the Government attempted to re-emphasize provisions of the DCRB Scheme, 1981 which were otherwise in vogue even after framing of ROPA 1990 and it did not take away the vested right.

48. We are unable to accept the submission. Considering the various provisions, we are constrained to hold that the respondents acted arbitrarily in not giving opportunity for submitting fresh option to switch over to Pension-cum-Gratuity while substituting para 13 with effect from 13th July, 1999 and also when substituting para 17(2) of ROPA 1990 on 10th May, 2007 making the option under the DCRB Scheme, 1981 as relevant. An opportunity was required to be given to the employees to change the option to Pension-cum-Gratuity which benefit was available under 17(2) of ROPA 1990 and even under the provisions of para 13 of ROPA 1998 before substitution. When conditions of service depending on option were changed substantially and the benefit of pension at par and enhanced gratuity were to be taken away and made dependant on option exercised in terms of the DCRB Scheme, 1981, it was necessary to invite fresh option as the benefits conferred and accrued were sought to be taken away. It could not have been so done unless the Government had invited all the employees to submit fresh options so as to avoid the provisions from being termed as oppressive and arbitrary.

49. The only other point that remains for our consideration is the version of the employees that they were not made aware of the amendments effected in para 13 of ROPA 1998 and para 17 of ROPA 1990 with effect from 13th July, 1999 and 16th May, 2007 respectively.

50. In this connection, it would be profitable to refer to the decision of the Supreme Court reported in B.K. Srinivasan and Others Vs. State of Karnataka and Others, . Paragraph 15 of the said decision being relevant is quoted below:

15. There can be no doubt about the proposition that where a law, whether Parliamentary or Subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various processes. Whether law is viewed from the standpoint of the conscientious good man seeking to abide by the law or from the standpoint, of Justice Holmess Un-conscientious bad man seeking to avoid the law, law must be known, that is to say, it must be so made that it can be known. We know that delegated or subordinate legislation is all pervasive and that there is hardly any field of activity where governance by delegated or subordinate legislative powers is not as important if not more important, than governance by Parliamentary legislation. But unlike Parliamentary legislation which is publicly made, delegated or subordinate legislation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary. It is, therefore, necessary that subordinate legislation, in order to take effect, must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute are not. It will then take effect from the date of such publication or promulgation. Where the parent statute prescribes the mode of publication or promulgation that mode must be followed. Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel namely, the Official Gazette or some other reasonable mode of publication. There may be subordinate legislation which is concerned with a few individuals or is confined to small local areas. In such cases publication or promulgation by other means may be sufficient. See Narayana Reddy vs. State of Andhra Pradesh, 1969 (1) Andh WR 77.

51. The amendments in ROPA 1998 and ROPA 1990 sought to take away the accrued rights of the employees, who had opted for the revised scales of pay. By introducing such amendments, the Government intended to bind the employees by the options exercised by them in terms of the DCRB Scheme, 1981 instead of their automatic entitlement to Pension-cum-Gratuity on opting for the revised scales of pay and acceptance of reduced age of superannuation. There has been no endeavour on the part of the State Government to counter the version of the petitioners that they were not made aware of such amendments. On the authority of the decision in B.K. Srinivasan (supra), the amendments could be given effect if the same were published through reasonable mode of publication. Once the State Government decided that provisions in para 13 of ROPA 1998 and para 17 of ROPA 1990 required amendments, the employees who were to be governed by such amendments ought to have been notified directly and reliably of all changes and additions made to the original provisions by various processes so as to enable them exercise their option for Pension-cum-Gratuity, if they so wished, instead of binding them down to the option exercised under the DCRB Scheme, 1981. On this ground too, the submissions advanced on behalf of the State Government seeking to deny the employees the benefit of Pension-cum-Gratuity cannot be accepted.

52. It has been noticed that ROPA 1990 and ROPA 1998 were not published in the official gazette. However, since the same concerns revision of pay and allowances of employees, it would not be unreasonable to presume that the employees as part of normal human conduct would have taken special interest to ascertain its contents since their pay and allowances were bound to increase by reason of the same, although the same may not have been suitably published in the manner required by law. In our considered view, any argument that ROPA 1990 and ROPA 1998, in its original forms, were not published and hence, there was no requirement to publish the amendments (although not raised before us) would not be worthy of credence.

53. In R.S. Ajara and Others Vs. State of Gujarat and Others, , it has been held that a benefit accrued under the existing rules cannot be taken away by an amendment with retrospective effect and no statutory rule or administrative order can whittle down or destroy any right which has become crystalized and no rule can be framed under the proviso to Article 309 of the Constitution which affects or impairs the vested rights. The Apex Court has laid down thus:

16. The resolution dated 31.1.1992 has been assailed by the promotee officers on the ground that it is retrospective in operation and affects their rights. The law in this field is well settled by the decisions of this Court. A benefit that has accrued under the existing rules cannot be taken away by an amendment with retrospective effect and no statutory rule or administrative order can whittle down or destroy any right which has become crystalized and no rule can be framed under the proviso to Article 309 of the Constitution which affects or impairs the vested rights, [see: State of Gujarat vs. Raman Lal Keshav Lal Soni; K.C. Arora (Ex. Capt) vs. State of Haryana; T.R. Kapur vs. State of Haryana; Uday Pratap Singh vs. State of Bihar].***

Can it be said that the resolution dated 31.1.1992 makes any change in the existing provision governing the seniority so as to take away or deprive the respondents of a right which has accrued to them or which has crystallized As noticed earlier, the 1981 Rules do not contain any principle governing the seniority of Assistant Conservators of Forests appointed under the said Rules. Shri P.P. Rao has invited our attention to the Handbook for Personnel Officers issued by the General Administration Department of the Government of Gujarat. In para 1 of Chapter V, dealing with Seniority, it is stated:

In the case of direct recruits appointed on probation, the seniority would be determined ordinarily with reference to the date of their appointment on probation while in the case of the promotees, seniority would be determined with reference to the date of their promotion to long-term vacancies.

54. In P. Tulsi Das and Others Vs. Govt. of A.P. and Others, it has been held that no exception could be taken to the prospective exercise of powers thereunder without infringing the rights already acquired by the appellants and the persons similarly situated whether they approached the courts or not seeking relief individually. It is permissible for the State to make provisions in exercise of its powers under Article 162 which is coextensive with its legislative powers laying conditions of service, and rights accrued to or acquired by any citizen would be as much rights acquired under law and protected to that extent. The Apex Court has laid down thus:

On a careful consideration of the principles laid down in the above decisions in the light of the fact situation in these appeals we are of the view that they squarely apply on all fours to the cases on hand in favour of the appellants. The submissions on behalf of the respondent State that the rights derived and claimed by the appellants must be under any statutory enactment or rules made under Article 309 of the Constitution of India and that in other respects there could not be any acquisition of rights validly, so as to disentitle the State to enact the law of the nature under challenge to set right serious anomalies which had crept in and deserved to be undone, does not merit our acceptance. It is by now well settled that in the absence of rules under Article 309 of the Constitution in respect of a particular area, aspect or subject, it is permissible for the State to make provisions in exercise of its executive powers under Article 162 which is co-extensive with its legislative powers laying conditions of service and rights accrued to or acquired by a citizen would be as much rights acquired under law and protected to that extent. The orders passed by the Government, from time to time beginning from February, 1967 till 1985 and at any rate upto the passing of the Act, to meet the administrative exigencies and cater to the needs of public interest really and effectively provided sufficient legal basis for the acquisition of rights during the period when they were in full force and effect. The orders of the High Court as well as the Tribunal also recognised and upheld such rights and those orders attained finality without being further challenged by the Government, in the manner known to law. Such rights, benefits and perquisites acquired by the teachers concerned cannot be said to be rights acquired otherwise than in accordance with law or brushed aside and trampled at the sweet will and pleasure of the Government, with impunity. Consequently, we are unable to agree that the legislature could have validly denied those rights acquired by the appellants retrospectively not only depriving them of such rights but also enact a provision to repay and restore the amounts paid to them to the State. The provisions of the Act, though can be valid in its operation in futuro cannot be held valid insofar as it purports to restore status quo ante for the past period taking away the benefits already available, accrued and acquired by them. For all the reasons stated above the reasons assigned by the majority opinion of the Tribunal could not be approved in our hands. The provisions of Sections 2 and 3(a) insofar as they purport to take away the rights from 10.2.1967 and obligate those who had them to repay or restore them back to the State are hereby struck down as arbitrary, unreasonable and expropriatory and as such are violative of Articles 14 and 16 of the Constitution of India. No exception could be taken, in our view, to the prospective exercise of powers thereunder without infringing the rights already acquired by the appellants and the category of the persons similarly situated whether approached the Courts or not seeking relief individually. The provisions contained in Section 2 have to be read down so as to make it only prospective, to save the same from the unconstitutionality arising out of its retrospective application.

55. In Ex-Major N.C. Singhal Vs. Director General Armed Forces Medical Services, New Delhi and Another, it has been laid down that Government has no power to alter or modify the conditions of service of a Government servant with retrospective effect to his prejudice,

56. In Col. (Retd.) B.J. Akkara Vs. The Govt. of India and Others, , it has been laid down by the Apex Court that when clarificatory circulars are issued subsequent circular in effect will modify or amend the earlier notification, and that whenever a circular or clarificatory circular is issued it is necessary to give opportunity to the optees who had opted for the same. Thus in the instant case, it was necessary to give opportunity to the incumbents to submit fresh option for switching over from CPF-cum-Gratuity to Pension-cum-Gratuity.

57. In D.S. Nakara and Others Vs. Union of India (UOI), , it has been laid down by the Apex Court that the impugned memorandum violates Articles 14 and is unconstitutional and is liable to be struck down. It is incumbent upon the State Government to look after the interest of an employee in the post retiral phase when employee has served in the hey-days of his life. In our opinion, the State Government could not deprive an incumbent of the pensionary benefit and gratuity acting in an unreasonable and arbitrary manner by inserting the amendment with retrospective effect, as has been done in the instant case.

58. In Dakshin Haryana Bijli Vitran Nigam and Others Vs. Bachan Singh, , the circulars were issued twice inviting options from employees for being governed under the pension scheme but the incumbent was not informed of the same. It has been held that any discriminatory action on the part of the Government would be liable to be struck down. The Apex Court has held thus:

28. In view of the law as has been articulated in a large number of cases where this Court has observed that any discriminatory action on the part of the Government would be liable to be struck down. Hence, in this case, it would be totally unreasonable and irrational to deny the respondent the pensionary benefits under the scheme particularly when the appellants have failed to produce any record showing that the instructions dated 6.8.1993 and 9.8.1994 were actually got noted in writing by the respondent. In the absence of any such material it can well be inferred that the respondent had no knowledge about the options called by the appellants.

59. When the effect of the exercise of the power is to vary the contractual settled relations between the employer and the employees, it cannot be done without consulting the interests concerned, as has been laid down in State of Assam and Another Vs. Bharat Kala Bhandar Ltd. and Others, There, the Apex Court held thus:

27. We have already set out sub-r. (4) and a perusal of its language will show that there is nothing in the words themselves which plainly and unambiguously indicates that the power exercised thereunder depends purely on the subjective satisfaction of Government. It is true that sub-r. (4) so far as it applies to employments other than those of Government is consequential on a notification under sub-r. (1). But that does not mean in the absence of express words in sub-r. (4) that the power exercised thereunder depends purely on the subjective satisfaction of Government. We have already indicated that the power under sub-r. (4) is analogous to the power of industrial tribunals to decide disputes between employers and employees. The result of the exercise of the power under sub-r. (4) is to vary the contractual relations between employers and employees concerned in employments with respect to which a notification under sub-r. (1) has been issued. The effect of the exercise of such power is to unsettle settled relations between employers and employees which may be existing for a long time and which may be the outcome either of contractual relations or even of industrial awards. Sub-rule (4) not only deals with wages but also with other conditions of service and thus in a real emergency may practically supersede all industrial adjudication. The power conferred is thus a far-reaching nature in the field of industrial relations and may have the effect of disturbing all such relations for the duration of a real emergency. The question therefore arises whether in the absence of express words in sub-r. (4) to indicate that the power is to be exercised purely on the subjective satisfaction of Government we should hold that an order passed under sub-r. (4) can be passed purely on subjective satisfaction. When the effect of orders passed under sub-r. (4) can be so far-reaching and so wide in its impact we would be loath to hold that such wide and far-reaching powers were conferred on Government to be exercised purely on its subjective satisfaction without even consulting the interests concerned specially when the language is not plain and unambiguous and there is no indication in the sub-rule itself that the power can be exercised purely on the subjective satisfaction of Government. We are not unmindful of the fact that the power under sub-r. (4) has to be exercised in a real emergency. But the ambit of the power therein is analogous to the power of industrial Courts. The power under sub-r. (4) may be exercised instead of referring industrial disputes relating to wages and other conditions of service to industrial tribunals. We are also not unmindful of the fact that in a real emergency, decision may have to be taken quickly and delay inevitable in the elaborate procedure provided for resolution of industrial disputes by industrial tribunals may not be desirable. Even so in the absence of express words in sub-r. (4) to show that the power thereunder depends for its exercise entirely on the subjective satisfaction of Government we would not be prepared to hold that that is what sub-r. (4) indicates. We have already said that the effect of sub-r. (4) is to disturb settled industrial relations whether based on contracts or on industrial awards, and it seems to us that before Government exercises the power under sub-r. (4) it should even in a real emergency consult the interests concerned before taking action thereunder.

60. In K.I. Shephard and Others Vs. Union of India (UOI) and Others, 1, it has been laid down that principles of natural justice are applicable to administrative actions and compliance with at least minimum requirements of natural justice is required. It is necessary to grant opportunity before taking any action which has adverse civil consequences.

61. Similar view is taken in Km. Nelima Misra Vs. Dr. Harinder Kaur Paintal and others, wherein it has been held that an administrative order which involves civil consequences must be made consistently with the rule expressed in the Latin maxim audi alteram partem.

62. In Shimnit Utsch India Pvt. Ltd. and Another Vs. West Bengal Transport Infrastructure Development Corporation Ltd. and Others, , it has been laid down that though it is open to the Government to change policy with changing circumstances and only on the ground of change, policy cannot be vitiated, but change in policy must be in conformity with Wednesbury reasonableness and free from arbitrariness, irrationality, bias and malice. The Apex Court has held thus:-

52. We have no justifiable reason to take a view different from the High Court insofar as correctness of these reasons is concerned. The Courts have repeatedly held that the government policy can be changed with changing circumstances and only on the ground of change, such policy will not be vitiated. The Government has a discretion to adopt a different policy or alter or change its policy calculated to serve public interest and make it more effective. Choice in the balancing of the pros and cons relevant to the change in policy lies with the authority. But like any discretion exercisable by the Government or public authority, change in policy must be in conformity with Wednesbury reasonableness and free from arbitrariness, irrationality, bias and malice.

63. The learned Advocate General has relied upon Rajasthan SRTC vs. Rajasthan Roadways Union, 2012 (11) SCC 561 , [LQ/SC/2012/814] wherein question arose for consideration whether the widow of an employee is entitled to get family pension under the Employees Family Pension Scheme, 1971. It was submitted that an employee was not informed of his right to exercise option. Question also arose for consideration whether the appellant had opted for the benefit of the scheme which came into force in the year 1971 and whether there was failure on the part of the appellant Corporation in promptly informing the employees of the existence in such a Scheme their right to exercise option for family pension. On facts, it was held that the Corporation had issued notification on 30th July, 1971 seeking necessary option from the employees. In pursuance of that notification, several employees had exercised their option for the Scheme and a few did not opt for that, since they were keen on getting the provident fund under the Central Provident Fund Scheme. Thus, the Apex court found that the above notification was sent to all the employees of the appellant Corporation for information with a request that they should give wide publicity to the Scheme and the notification was issued from the office of the Regional Provident Fund Commissioner. Thus, finding on facts was recorded. The Apex Court had no reason to think that the employees were unaware of the notification issued by the Regional Provident Fund Commissioner as well as the Corporation.

64. Submissions advanced by Mr. Chatterjee, learned Advocate General, though attractive at first blush, is not considered by this Court to be worthy enough to hold in his favour, having regard to the factual matrix of the case and law laid down in Rajasthan SRTC vs. Rajasthan Roadways Union (supra). In the instant case, substitution of provisions of ROPA 1990 and ROPA 1998 has been made with retrospective effect. Therefore, the decision in Rajasthan SRTC (supra) is distinguishable.

65 Krishena Kumar and Others Vs. Union of India and others, , has been referred to in order to contend that in matters entailing financial implications, the Supreme Court would be loath to pass any order or directions. Those who did not opt for the pension scheme had ample opportunity to choose between the two viz. the PF scheme or the pension scheme. Each option was given for stated reason relating to the options. On each occasion time was given not only to the persons in service on the date of the Railway Boards letter but also to persons who were in service till the stated anterior date but had retired in the meantime. The period of validity of option was extended in all the options except a few. Therefore, the cut-off dates were not arbitrarily chosen but had nexus with the purpose for which the option was given. There cannot be any dispute with the aforesaid proposition. However, in the instant case, policy has been changed to depend on option without extending opportunity to submit option for Pension-cum-Gratuity and hence this decision does not advance the case of the Government.

66. Reliance has also been placed on PEPSU Road Transport Corporation, Patiala Vs. Mangal Singh and Others, , wherein it has been held that the regulations made under a statute laying down the terms and conditions of service of the employees, including the grant of retirement benefits, have the force of law. The statutory bodies as well as general public are bound to comply with the terms and conditions laid down in the regulations as a legal compulsion. Even in the case of non-statutory regulations, specifically providing for the grant of pensionary benefits to the employee qua his employer shall be governed by the terms and conditions encapsulated in such non-statutory regulations. It was further held that pension is in the nature of a right which an employee has earned by rendering long service to the employer but the employee failed to refund the amount of advance taken from the employers contribution of CPF within six months from the date of issue of the Regulations. The facts of the instant cases are different.

67. A Division Bench of this Court in Biswanath Koley (supra), and other connected matters, has laid down that such employees who exercised their options under ROPA 1990 were not required to exercise fresh option under the DCRB Scheme, 1981 and Memo dated 16th December 1991 was applicable to the teachers who had not opted under ROPA 1990 and for those who opted to continue in service upto the age of 65 years. The Division Bench of this Court has considered the various provisions contained in ROPA 1990 and ROPA 1998 and the form of option. The Division Bench of this Court has laid down thus:

25. We are not at all impressed with the arguments of the learned Counsel appearing for the appellants. We have carefully perused the judgments of the learned Single Judge and were of the opinion that the learned Judge was correct when he came to the conclusion that, in the facts of these cases, the petitioners having exercised their options under the relevant ROPA Rules, they were entitled to the benefits thereunder upon refund of the employers contribution together with interest at the rate prescribed by the Government. We say so because the petitioners were all in service when the relevant ROPA Rules of 1990 came into force enabling persons like the petitioners to act in terms of either para 17 of the ROPA Rules of 1990 or para 5/6 of the ROPA Rules of 1998. We have noticed that in all these cases, the petitioners/respondents filled up and exercised their options in the manner prescribed under the relevant ROPA Rules and therefore, even if they had not acted in terms of the earlier Memorandums, they would still be deemed to have become entitled to the benefits as envisaged under the relevant ROPA Rules under which they applied respectively.

26. The ROPA Rules of 1990 was published on the basis of Memorandum dated 7th March, 1990 under Memo No. 33-Edn. (B.) Under para 5 of these Rules, and as is evident from the said para 5 quoted above it is clearly laid down that a teacher or non-teaching employee who had not reached the age of superannuation as prescribed in para 17 on the day of issuance of the said ROPA Rules of 1990 (i.e. 7.3.1990), and who had not attained the age of superannuation as prescribed in para 17 thereof, could, within 90 days from the date of the issuance of the said Order (i.e. 7.3.1990), come over to the revised scale of pay together with the terms and conditions as may be revised and determined by the Government and on coming over to the revised scale of pay, such teacher shall retire on attaining the age of superannuation as prescribed in para 17 (i.e. 60 years).

28. The learned Single Judge, after considering all the aspects involved in the cases including the fact that other persons had been given the benefits of exercising their options, finally came to the conclusion, in Biswanath Koleys case and correctly so, that having opted under the ROPA Rules, it was not necessary for the petitioner to exercise his option under the 1991 Memorandum referred to above as the same was applicable only to those teachers who had not opted under the ROPA Rules and for those who had opted to continue to serve upto 65 years of age. We uphold this view and make it applicable in the other two appeals also.

29. The learned Counsel for the appellants have referred to an unreported judgment of this Court passed in MAT No. 1352 of 2004 (State of West Bengal & Ors. vs. Madan Mohan Ghosh & Ors.) in support of their contention that the petitioners/respondents having not availed of the opportunity even after the issuance of the Circular dated 16.12.1991, cannot be allowed to subsequently turn around and take benefit under ROPA Rules. We have no hesitation in rejecting the aforesaid contention for the reason that in each of these cases at hand, the petitioners were in service on the day when the relevant ROPA Rules came into existence which did not take away the rights of anyone to exercise their options provided that such option was exercised within time and with an undertaking that the optees would refund the excess, if any drawn by him and would retire at the age of 60 years.

68. The view expressed on provisions of para 17 of ROPA 1990 is correct. The aforesaid decision in Biswanath Koley (supra) has been affirmed by the Honble Supreme Court. Apart from that, effect of substituted provisions of ROPA 1990 and 1998 has been considered by us.

69. In Bijoli Bhattacharya (supra), the Division Bench of this Court has opined that once option had not been given, there was no justification to condone the delay in submitting option. The decision has been set aside by the Honble Supreme Court in the year 2004. Apart from that, it was not considered by the Division Bench of this Court whether fresh option was required to be given as per Memo dated 16th December, 1991 and whether once option had been exercised as per para 5 of ROPA 1990, right to obtain pension and gratuity accrued under para 17 of ROPA 1990 as there was reduction of age of superannuation.

70. Another decision of the Division Bench of this Court in State of W. Ben. & Ors. vs. Smt. Chhabi Roy in APO No. 469 of 2005 decided on 15.3.2007, has also been set aside by the Honble Supreme Court. The Honble Supreme Court has remitted the case to this Court for the same being dealt with in the light of decision in Bijoli Bhattacharya (supra) dated 6th August, 2004. It was held by this Court in Chhabi Roy (supra) that the finding of the Apex Court in Bijoli Bhattacharya (supra) dated 6th August, 2004 that "she be permitted to opt for the pension in view of the peculiar facts and circumstances of the case," was relief granted by the Honble Supreme Court under Article 142 of the Constitution of India. The Division Bench also opined that the prayer to change option was belated. However, questions of taking away benefit conferred under para 17 of ROPA 1990 and Memo dated 16th December, 1991 was inapplicable to an employee who had already exercised option under ROPA 1990, as held by the Division Bench of this Court in Biswanath Koley (supra), were not considered. The decision has been set aside by the Honble Supreme Court and the case has been remitted to this Court vide Civil Appeal No. 135 of 2013, for fresh consideration in accordance with law and having regard to the order passed by the Apex Court in Bijoli Bhattacharya (supra) dated 6th August, 2004, the same is being decided by this order.

71. A Division Bench of this Court in Sk. Abdur Rashid & Ors. vs. State of W. Ben. & Ors. (APO No. 119/2007) decided on 16th January, 2008, considering the amendment of para 13 of ROPA 1998, held that there could be no automatic process of change of option, unless there had been a specific exercise of option with regard to pensionary benefit within the stipulated period. Effect of para 17 of ROPA 1990 and whether there was necessity to invite option after substitution of para 13 of ROPA 1998 were not considered by the Division Bench of this Court. Moreover, it was not considered whether Memo dated 16th December, 1991 was applicable and there was need to exercise option under the Memo dated 16th December, 1991 once option had been exercised under ROPA 1990. Therefore, the decision in Sk. Abdur Rashid (supra) and other decisions taking similar view cannot be said to have been correctly decided and are overruled.

72. It is apparent that the State Government itself has extended the opportunity to revise option even with respect to the employees who opted for 65 years of age of superannuation and had permitted them to revise option to opt for Pension-cum-Gratuity in the year 1991. Similar treatment has not been meted out to the employees who had opted for ROPA 1990. Alternatively, even if it was necessary for them to exercise fresh option as per Memo dated 16th December, 1991, a legal imbroglio was created due to provision of para 17 of ROPA 1990 and in any view of the matter, as there was substitution of para 13 of ROPA 1998 on 13th July, 1999 and ROPA 1990 on 16th May, 2007 retrospectively, opportunity had to be given for fresh option to opt for Pension-cum-Gratuity.

73. Thus, we answer the five questions in the following manner:

1) An employee who has opted for revised pay scale under ROPA, 1990 becomes entitled to pension and gratuity by virtue of operation of para 17 of ROPA 1990. It was not necessary for him to exercise fresh option as per Memo dated 16th December, 1991, which was applicable to employees who had not opted for ROPA 1990. Benefit of Pension-cum-Gratuity was conferred due to acceptance of reduced age of superannuation of 60 years under para 17(1) of ROPA 1990 and his right for Pension-cum-Gratuity so accrued could not have been taken away retrospectively by substitution of the provisions of para 17 in 2007 or by substitution of para 13 of ROPA 1998 in 1999.

2) Once option has been exercised under ROPA 1990, a person cannot be subjected to the rider of the option exercised under the DCRB Scheme, 1981 as the invitation of the option under the said Scheme was with respect to the employees who elected to continue in service till the age of 65 years and to have the benefit of the old scheme. For such employees, opportunity was given to submit fresh options as per Memo dated 16th December, 1991.

The amendment made in para 17(2) of ROPA 1990 on May 16, 2007 cannot be said to be valid piece of law as such provisions cannot be substituted with retrospective effect to take away the rights already accrued to an employee. So as to validate provisions of para 17(2) of ROPA 1990, as substituted, it was necessary to invite option for switching over to Pension-cum-Gratuity from CPF-cum-Gratuity when the substitution of para 17(2) of ROPA 1990 was made on 16th May, 2007 with retrospective effect.

3) Para 13 of the ROPA 1998 as amended on 13th July, 1999 cannot be said to be valid in the eye of law as it has the effect of taking away benefit conferred by para 17(2) of ROPA 1990, as the ROPA 1998 was made applicable to the employees who had opted for ROPA 1990 and the benefit conferred could not have been taken away by substitution of provisions contained in para 13 of ROPA 1998. It was clearly arbitrary and an unreasonable exercise of power and to treat it as valid and legal, it was necessary to invite fresh option under the DCRB Scheme, 1981 for switching over to Pension-cum-Gratuity as the provisions had been amended drastically which could not operate to the prejudice of the employees in whose favour right to claim Pension-cum-Gratuity had accrued. The substituted provisions of para 13 of ROPA 1998 fail to qualify Wednesbury principles of reasonableness. The action was in utter violation of fair play and justice.

4) In our opinion, after substitution of para 13 of ROPA 1998 on 13th July, 1999 and para 17 of ROPA 1990 on 16th May, 2007, in order to save the provisions from the vice of arbitrariness, it was necessary to give an opportunity to the employees to submit fresh option under DCRB Scheme, 1981. As the option exercised earlier in terms of the DCRB Scheme, 1981 was made applicable, it was necessary to give fresh opportunity to exercise an option for switching over to Pension-cum-Gratuity and the State could not have acted to the detriment of the employees opting for ROPA 1990 who chose the rider of reduced age of superannuation i.e. 60 years under para 17(1) of ROPA 1990.

5) In our opinion, as there was drastic change of provisions of para 17(2) of ROPA 1990 made by way of substitution in 2007, and ROPA 1998 also interfered with the rights conferred upon the employees under para 17(2) of ROPA 1990, all the employees who opted for ROPA 1990 ought to be given fresh opportunity to submit the option to switch over to Pension-cum-Gratuity.

74. Coming to the relief to be granted, it is clear that some of the employees are in service and some of them have retired and averments are on record that they are ready and willing to repay the amount of employers share of contribution in the CPF together with interest and additional interest as option had not been called from them to switch over to Pension-cum-Gratuity while substituting para 13 of ROPA 1998 w.e.f. 13th July, 1999 and retrospective substitution of para 17(2) of ROPA 1990 on 16th May, 2007 w.e.f. 6th March, 1999.

75. We direct the State Government to give opportunity to all the petitioners and other employees similarly situated to submit option to switch over to Pension-cum-Gratuity by issuing public notice in at least four newspapers having wide circulation in this State. Three months time period be given to them to exercise option and let the amount be specified to each and every employee who elects to switch over to Pension-cum-Gratuity to deposit the amount of employers share of contribution with interest and additional interest which is required to be refunded to the Government within the period specified.

76. If an employee exercises option, he shall be entitled to Pension-cum-Gratuity in accordance with law with effect from the date refund is made.

77. Let such exercise be completed within a period of six months from today.

78. The appeals filed by the State Government are hereby dismissed.

79. The writ petitions are allowed to the aforesaid extent. There will be no order as to costs.

Certified photocopy of this judgment and order, if applied for, be furnished to the applicant at an early date.

Dipankar Datta, J.

I entirely agree with the opinion of My Lord the Chief Justice and have nothing to add.

Joymalya Bagchi, J.

I agree.

Final Result : Dismissed