Karnataka High Court
Union Of India vs Ms M S Sudha on 15 March, 2024
Author: K.Somashekar
Bench: K.Somashekar
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NC: 2024:KHC:10733-DB
WP No. 25566 of 2023
C/W WP No. 25671 of 2023
WP No. 25797 of 2023
WP No. 25840 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MARCH, 2024
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
WRIT PETITION NO. 25566 OF 2023 (S-CAT)
C/W
WRIT PETITION NO. 25671 OF 2023 (S-CAT)
WRIT PETITION NO. 25797 OF 2023 (S-CAT)
WRIT PETITION NO. 25840 OF 2023 (S-CAT)
IN WP NO 25566 OF 2023
BETWEEN:
1 . UNION OF INDIA
REP. BY ITS SECRETARY
TO THE GOVERNMENT,
MINISTRY OF HUMAN
Digitally signed RESOURCE DEVELOPMENT,
by D HEMA GOVERNMENT OF INDIA,
Location: HIGH SHASTRI BHAVAN,
COURT OF NEW DELHI-110 001.
KARNATAKA
2 . THE COMMISSIONER,
KENDRIYA VIDYALAYA SANGATHAN,
NO.18, INSTITUTIONAL AREA,
SHAHEED JEET SINGH MARG,
NEW DELHI-110 016.
3 . PAY AND ACCOUNTS OFFICER CIVIL LINES,
NEW DELHI-110 054.
4 . DEPARTMENT OF EXPENDITURE,
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NC: 2024:KHC:10733-DB
WP No. 25566 of 2023
C/W WP No. 25671 of 2023
WP No. 25797 of 2023
WP No. 25840 of 2023
GOVERNMENT OF INDIA,
NEW DELHI-110 001.
...PETITIONERS
(BY SRI B. PRAMOD, ADVOCATE FOR PETITIONERS [PH])
AND:
MS. M.S. SUDHA,
PRINCIPAL (RETIRED),
AGED MAJOR,
NO.47, MADATHINGAL,
1ST CROSS, 3RD BLOCK,
DASAPPA LAYOUT,
RAMMURTHYNAGAR,
BENGALURU-560 016.
RESPONDENT
(BY SRI ANIYAN JOSEPH, ADVOCATE/CR/R1 [PH])
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA, PRAYING TO SET ASIDE
THE ORDER DATED 25.01.2023 (ANNEXURE-A) PASSED BY THE
CENTRAL ADMINISTRATIVE TRIBUNAL, BENGALURU BENCH,
BENGALURU IN OA.NO.170/00990/2019 AND PASS ANY SUCH
OTHER ORDER(S), WRIT, DIRECTIONS AS THIS HON'BLE
COURT DEEMS FIT IN THE FACTS AND CIRCUMSTANCES OF
THE CASE IN THE INTEREST OF JUSTICE AND EQUITY.
IN WP NO.25671 OF 2023
BETWEEN:
1. UNION OF INDIA,
REP. BY ITS SECRETARY
TO THE GOVERNMENT,
MINISTRY OF HUMAN
RESOURCE DEVELOPMENT,
GOVERNMENT OF INDIA,
SHASTRI BHAVAN,
NEW DELHI-110 001.
2. THE COMMISSIONER,
KENDRIYA VIDYALAYA SANGATHAN,
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NC: 2024:KHC:10733-DB
WP No. 25566 of 2023
C/W WP No. 25671 of 2023
WP No. 25797 of 2023
WP No. 25840 of 2023
NO.18, INSTITUTIONAL AREA,
SHAHEED JEET SINGH MARG,
NEW DELHI-110 016.
3. PAY AND ACCOUNTS OFFICER CIVIL LINES,
NEW DELHI-110 054.
4. DEPARTMENT OF EXPENDITURE,
GOVERNMENT OF INDIA,
NEW DELHI-110 001.
...PETITIONERS
(BY SRI B. PRAMOD, ADVOCATE FOR PETITIONERS [PH])
AND:
SMT. VASANTHI KRISHNAN,
PRINCIPAL (RETIRED),
AGED MAJOR,
NO.3 VANDANA,
4TH CROSS AYAPPANAGAR,
JALAHALLI WEST,
BENGALURU-560 009.
...RESPONDENT
(BY SRI ANIYAN JOSEPH, ADVOCATE/CR/R1 [PH])
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA, PRAYING TO SET ASIDE
THE ORDER DATED 25.01.2023 (ANNEXURE-A) PASSED BY THE
CENTRAL ADMINISTRATIVE TRIBUNAL, BENGALURU BENCH,
BENGALURU IN OA.NO.170/00991/2019 AND PASS ANY SUCH
OTHER ORDER(S), WRIT, DIRECTIONS AS THIS HON'BLE
COURT DEEMS FIT IN THE FACTS AND CIRCUMSTANCES OF
THE CASE IN THE INTEREST OF JUSTICE AND EQUITY.
IN WP NO.25797 OF 2023
BETWEEN:
1. UNION OF INDIA
REP. BY ITS SECRETARY
-4-
NC: 2024:KHC:10733-DB
WP No. 25566 of 2023
C/W WP No. 25671 of 2023
WP No. 25797 of 2023
WP No. 25840 of 2023
TO THE GOVERNMENT,
MINISTRY OF HUMAN
RESOURCE DEVELOPMENT,
GOVERNMENT OF INDIA,
SHASTRI BHAVAN,
NEW DELHI-110 001.
2 . THE COMMISSIONER,
KENDRIYA VIDYALAYA SANGATHAN,
NO.18, INSTITUTIONAL AREA,
SHAHEED JEET SINGH MARG,
NEW DELHI-110 016.
3 . PAY AND ACCOUNTS OFFICER CIVIL LINES,
NEW DELHI-110 054.
4 . DEPARTMENT OF EXPENDITURE,
GOVERNMENT OF INDIA,
NEW DELHI-110 001.
...PETITIONERS
(BY SRI B. PRAMOD, ADVOCATE FOR PETITIONERS [PH])
AND:
SMT. ANU THOMAS,
PRINCIPAL (RETIRED),
AGED MAJOR,
NO.939, 3RD CROSS,
H.R.B.R. 1ST BLOCK,
KALYAN NAGAR,
BENAGALURU-560 043.
...RESPONDENT
(BY SRI ANIYAN JOSEPH, ADVOCATE/CR/R1 [PH])
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA, PRAYING TO SET ASIDE
THE ORDER DATED 25.01.2023 (ANNEXURE-A) PASSED BY THE
CENTRAL ADMINISTRATIVE TRIBUNAL, BENGALURU BENCH,
BENGALURU IN OA.NO.170/00989/2019 AND PASS ANY SUCH
OTHER ORDER(S), WRIT, DIRECTIONS AS THIS HON'BLE
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NC: 2024:KHC:10733-DB
WP No. 25566 of 2023
C/W WP No. 25671 of 2023
WP No. 25797 of 2023
WP No. 25840 of 2023
COURT DEEMS FIT IN THE FACTS AND CIRCUMSTANCES OF
THE CASE IN THE INTEREST OF JUSTICE AND EQUITY.
IN WP NO.25840 OF 2023
BETWEEN:
1 . UNION OF INDIA
REP. BY ITS SECRETARY
TO THE GOVERNMENT,
MINISTRY OF HUMAN
RESOURCE DEVELOPMENT,
GOVERNMENT OF INDIA,
SHASTRI BHAVAN,
NEW DELHI-110 001.
2 . THE COMMISSIONER,
KENDRIYA VIDYALAYA SANGATHAN,
NO.18, INSTITUTIONAL AREA,
SHAHEED JEET SINGH MARG,
NEW DELHI-110 016.
3 . PAY AND ACCOUNTS OFFICER CIVIL LINES,
NEW DELHI-110 054.
4 . DEPARTMENT OF EXPENDITURE,
GOVERNMENT OF INDIA,
NEW DELHI-110 001.
...PETITIONERS
(BY SRI B. PRAMOD, ADVOCATE FOR PETITIONERS [PH])
AND:
SMT. GEETHA NELLIKAI,
PRINCIPAL (RETIRED),
AGED MAJOR,
2012, SOBHA RUDY PLATINUM APARTMENTS
TUMKUR ROAD, NAGASANDRA POST,
BENGALURU-560 073.
...RESPONDENT
(BY SRI ANIYAN JOSEPH, ADVOCATE/CR/R1 [PH])
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NC: 2024:KHC:10733-DB
WP No. 25566 of 2023
C/W WP No. 25671 of 2023
WP No. 25797 of 2023
WP No. 25840 of 2023
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF CONSTITUTION OF INDIA, PRAYING TO SET ASIDE
THE ORDER DATED 25.01.2023 (ANNEXURE-A) PASSED BY THE
CENTRAL ADMINISTRATIVE TRIBUNAL, BENGALURU BENCH,
BENGALURU IN OA.NO.170/01029/2019 AND PASS ANY SUCH
OTHER ORDER(S), WRIT, DIRECTIONS AS THIS HON'BLE
COURT DEEMS FIT IN THE FACTS AND CIRCUMSTANCES OF
THE CASE IN THE INTEREST OF JUSTICE AND EQUITY.
THESE WRIT PETITIONS WERE HEARD AND RESERVED
FOR PRONOUNCEMENT OF ORDERS ON 29.01.2024, THIS DAY,
UMESH M ADIGA, J., PRONOUNCED THE FOLLOWING:
ORDER
These writ petitions are directed against the orders passed by the Central Administrative Tribunal, Bengaluru Bench (hereinafter referred to as 'CAT' for short) in Original Application Nos.170/00990/2019, 170/00991/2019, 170/00989/2019 and 170/01029/2019 filed by the respondent herein.
2. Common question of law is involved in all these writ petitions, therefore they are taken up together for disposal.
3. Brief facts to dispose of these writ petitions are that respondent in all these writ petitions were appointed as Graduate Teachers/Teachers in Kendriya Vidyalaya -7- NC: 2024:KHC:10733-DB WP No. 25566 of 2023 C/W WP No. 25671 of 2023 WP No. 25797 of 2023 WP No. 25840 of 2023 Sangathan (hereinafter referred to as 'KVS' for short). They were later on appointed directly to the post of Principal on different dates subsequent to the year 2000. Respondent in all these writ petitions were earlier subscribers to the Contributory Provident Fund (hereinafter referred to as 'CPF' for short). The Central Government by accepting the 4th Pay Commission Report, issued Office Memorandum bearing No.4/1/87-PIC-I, dated 01.05.1987 (hereinafter referred to as 'OM of 1987' for short), wherein an option was given to the Officers/Employees of the Central Government, who were in service prior to 01.01.1986 either to continue under CPF scheme or they may opt GPF scheme. However, if they intend to continue in CPF scheme, then they have to exercise option by submitting an application in the prescribed format, annexed to the said OM of 1987. The KVS is an autonomous body constituted by the Union of India, had adopted the said OM of 1987 to its Officers and Employees by issuing Office Memorandum dated -8- NC: 2024:KHC:10733-DB WP No. 25566 of 2023 C/W WP No. 25671 of 2023 WP No. 25797 of 2023 WP No. 25840 of 2023 01.09.1988 (for short, referred to as 'OM of 1988'), it is said to be in terms of OM of 1987 issued by the Government of India.
4. Respondent in all these writ petitions, even after issuing of OM of 1988, continued to contribute subscriptions to the CPF scheme. Respondents in Writ Petition Nos.25566, 25671, 25797 and 25840 of 2023 were retired from service on 30.09.2013, 28.02.2007, 31.12.2014 and 12.08.2002 respectively. Their retirement benefit claims were settled including the CPF scheme benefit. After lapse of about 5 to 17 years i.e., during the year-2019, they have filed applications before the CAT, challenging the endorsements issued by the petitioners herein denying them the benefit of conversion GPF scheme pension scheme from CPF scheme, which they had already availed. The said endorsement has been challenged before the CAT in Original Application Nos.170/00990/2019, 170/00991/2019, 170/00989/2019 and 170/01029/2019 on the ground that some of the Officers/Employees -9- NC: 2024:KHC:10733-DB WP No. 25566 of 2023 C/W WP No. 25671 of 2023 WP No. 25797 of 2023 WP No. 25840 of 2023 working in the KVS got benefit of conversion from CPF scheme to GPF scheme. However, it was denied to respondent here in without any justifiable reasons. They also contended that they were appointed as Principal which was direct recruitment and hence, they can avail the benefit of conversion from CPF scheme to GPF pension scheme.
5. Writ petitioners herein were respondents before the CAT. Along with other contentions taken out in the response filed by them, mainly they have contended that claim of respondent herein is barred by limitation, delay, latches and acquiescence, therefore they were not entitled for conversion from CPF scheme to GPF scheme. Therefore, prayed to dismiss the applications.
6. The CAT after hearing both parties, disposed of the said Original Application Nos.170/00990/2019, 170/00991/2019, 170/00989/2019 and 170/01029/2019 by order dated 25.01.2023 (by separate orders) allowed the applications of the respondent (applicants therein).
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NC: 2024:KHC:10733-DB WP No. 25566 of 2023 C/W WP No. 25671 of 2023 WP No. 25797 of 2023 WP No. 25840 of 2023 Being aggrieved by the same, respondent has filed these writ petitions.
7. Initially, the Tribunal has considered these applications along with connected cases and by order dated 12.02.2020 had allowed the said applications. The same was challenged by petitioners herein in Writ Petition Nos.10998 of 2020 clubbed with WP Nos.10569, 13121 and 13124 of 2020. The Co-ordinate Bench of this court by order dated 01.02.2021 allowed all the writ petitions and remanded the matter to the CAT to reconsider the case afresh and pass suitable orders. Thereafter, the CAT has taken up the matters and disposed off all the applications by impugned orders.
8. We have heard the arguments of learned advocate appearing for both the sides and perused the records.
8.1. The learned counsel appearing for appellant-petitioner has vehemently contended that respondents herein have retired from service prior to 2014 i.e., 2002, 2007, 2013 and 2014. After lapse of about 10 to 15 years, after retirement, they filed this application seeking conversion from CPF scheme to GPF pension scheme. Therefore, their claim for conversion from CPF to GPF pension scheme is beyond the period of limitation. Their right is
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NC: 2024:KHC:10733-DB WP No. 25566 of 2023 C/W WP No. 25671 of 2023 WP No. 25797 of 2023 WP No. 25840 of 2023 extinguished due to delay, latches and acquiescence. This point was not at all considered by the Tribunal.
8.2. The learned counsel for petitioner has further submitted that respondent had an opportunity to opt for CPF scheme or GPF scheme as per the OM of the year 1988. They did not opt and on the contrary, they have been paying the subscription to CPF fund and after retirement they received the benefit under CPF pension scheme. At that time also they did not object. Knowing fully well that they had opted for CPF pension scheme, they had been paying the subscription and after the retirement they got benefit of CPF pension scheme. 10 to 15 years after their retirement, they came up with a case stating that, they would opt for GPF pension scheme, which is not permissible under law. The Tribunal has not at all considered these facts in the impugned orders, therefore, prayed for setting aside the same.
9. The learned counsel appearing for respondent in the writ petitions has vehemently contended that all these points were urged before the Tribunal. The Tribunal in the impugned order, has considered the rival contentions of the parties and also Judicial
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NC: 2024:KHC:10733-DB WP No. 25566 of 2023 C/W WP No. 25671 of 2023 WP No. 25797 of 2023 WP No. 25840 of 2023 pronouncements relied by both the parties and passed impugned orders. There is no illegality in the said findings. The said findings are accordance with the law. As per OM of the year 1987 issued by the Government of India and OM of 1988, an option was given to employees either to opt for CPF or GPF pension scheme and if any person failed to opt for CPF pension scheme, then by default they would be converted to GPF pension scheme, as per the 4th Pay Commission report.
10. It is a further argued by the learned counsel for respondent that the KVS had discriminated respondent in these writ petitions from some other teaching and non-teaching staff of the KVS. The KVS on the representation of similarly placed employees like the applicant, had permitted them to changeover from CPF scheme to GPF pension scheme. However, representations of the respondent in these writ petitions were rejected without any justifiable reason. The said action of the petitioners is violation of Article 14 of the Constitution of India and hence not tenable.
11. The learned counsel for respondent has further submitted that the CAT had considered all these points and
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NC: 2024:KHC:10733-DB WP No. 25566 of 2023 C/W WP No. 25671 of 2023 WP No. 25797 of 2023 WP No. 25840 of 2023 allowed the applications. There are no reasons to interfere in the findings of the CAT and hence prayed to dismiss the writ petitions.
12. The only point to be considered in these petitions is, "Whether the Tribunal is justified in allowing the applications of respondent herein to opt for GPF pension scheme in place of CPF pension scheme?"
13. It is not in dispute that respondent in all the writ petitions were appointed to the post of Teacher or Graduate Teacher prior to 01.01.1986. Respondent herein have contended before the CAT that they were directly recruited to the post of Principal during the year 2020 onwards and it is a fresh appointment. Therefore, the rule prevailing as on that date would be applicable to them. By that time, KVS had issued OM of 1988 and hence, petitioners should have applied benefit of GPF pension scheme to the respondent in the writ petitions. The said contention is not tenable. Prior to appointment as a Principal, respondent had been working as Teacher/Graduate Teacher in the KVS. The said service was continued and hence, it was not a fresh appointment, therefore, question of application of the rules of the year 2020 does not hold any water. In the impugned Judgment, the CAT also did
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NC: 2024:KHC:10733-DB WP No. 25566 of 2023 C/W WP No. 25671 of 2023 WP No. 25797 of 2023 WP No. 25840 of 2023 not accept the said contention of the respondent. On that ground they cannot claim the benefit.
14. Most of the facts of the case are not in dispute. It is an admitted fact that respondent in these writ petitions were employees of the KVS and they had worked as Teacher/Graduate Teacher and Principal in KVS schools and they were retired from service on different dates mentioned in the concerned applications filed by the respondent. Date of retirement is also not in dispute. It is also not in dispute that during their service, petitioner had deducted the subscription amount from their monthly salary/pay towards CPF pension scheme. And after retirement of the respondent, the said amount has been paid to respondent under the CPF pension scheme. After receipt of the amount from the petitioners, they made representation to the concerned authority for seeking permission to convert their claim under GPF pension scheme. Admittedly, the representations were rejected by petitioners and an endorsement was given to that effect, that was under challenge before the Tribunal.
15. The main ground in the writ petition is that due to delay and latches of respondents herein, they have lost the right to claim
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NC: 2024:KHC:10733-DB WP No. 25566 of 2023 C/W WP No. 25671 of 2023 WP No. 25797 of 2023 WP No. 25840 of 2023 the benefit to shift from CPF pension to GPF pension scheme, which is not permissible under law. The Office Memorandum dated 01.05.1987 is produced at Annexure A5, bearing No.4/1/87/PIC-I issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Pension and Pensioners' Welfare. Relevant clauses of the said OM of 1987 are narrated below, which are necessary for disposal of these writ petitions.
Paragraph No."1. The undersigned is directed to state that Central Government employees, who are governed by the Contributory Provident Fund Scheme (CPF Scheme) have been given repeated options in the past to come over to the Pension Scheme. The last such option was given in the Department of Personnel and Training O.M.No.F3(1)- Pension unit/85 dated the 6th June, 1985. However, some Central Government employees still continue under CPF Scheme. The Fourth Central Pay Commission has now recommended that all CPF beneficiaries in service on January 1, 1986, should be deemed to have come over to the Pension Scheme on that date unless they specifically opt out to continue under CPF scheme.
2. ........
3. All CPF beneficiaries, who were in service on 1.1.1986 and who are still in service on the date of issue of these orders will be deemed to have come over to the Pension Scheme.
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NC: 2024:KHC:10733-DB WP No. 25566 of 2023 C/W WP No. 25671 of 2023 WP No. 25797 of 2023 WP No. 25840 of 2023 3.2: The employees of the category mentioned above will, however, have an option to continue under the CPF Scheme, if they so desire. The option will have to be exercised and conveyed to the concerned Head of Office by 30.09.1987 in the form enclosed if the employees wish to continue under the CPF Scheme. If no option is received by the Head of Office by the above date, the employees will be deemed to have come over to the Pension Scheme.
3.3. .........
3.4. ........
3.5. ........
3.6. ........
3.7. ........
4. ........
4.2: In the case of employees referred to above, who come over or are deemed to come over to the Pension Scheme, the Government contribution to the CPF together with the interest thereon credited to the CPF Account of the employees will be resumed by the Government. The employees contribution together with the interest thereon at his credit in the CPF Account will be transferred to the GPF Account to be allotted to him on his coming over to the Pension Scheme.
4.3: Action to discontinue subscription/contributions to CPF Account may be taken only after last date specified for exercise of option viz., 30.09.1987.
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5. .......
6. .......
6.1. .......
6.2. .......
7.1. .......
7.2: Administrative Ministries administering any of the Contributory Provident Fund Rules, other than Contributory Provident Fund Rules (India), 1962, are also advised to issue similar orders in respect of CPF beneficiaries covered by those rules in consultation with Department of Pension and Pensioners' Welfare. Yet, these orders issued with concurrence of Ministry of Finance Department of Expenditure vide their U.O.No.2038/JS (Pers)/87 dated 13.4.1987."
16. Both the sides relied above said OM of 1987, the said OM reads that after issue of the said OM, from 01.01.986, all CPF beneficiaries should be deemed to have come over to GPF pension scheme unless officials specifically opt out to continue under CPF scheme.
17. It is not in dispute that as on the date of 01.01.1986, the respondents herein were in service and there is no material on record to show that respondents had filed any such
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NC: 2024:KHC:10733-DB WP No. 25566 of 2023 C/W WP No. 25671 of 2023 WP No. 25797 of 2023 WP No. 25840 of 2023 requisition/option in prescribed format to the KVS, that they would continue the CPF pension scheme. Petitioner did not place any such option submitted by respondent to prove its contention. When they did not opt for the said scheme, as per the terms of Annexure- A5, i.e. OM dated 01.05.1987 it was the duty of petitioner to give the benefit of said OM to the respondent in the writ petitions, because it was an automatic process.
18. In Paragraph 4.3 referred above, even it is directed that action should be taken to discontinue subscriptions or contribution to CPF account after 30.09.1987. The said OM of 1987 was also ignored by petitioners and they went on deducting the subscription/contribution to the CPF account of respondents herein. In addition to that, contrary to the said OM of 01.05.1987, they had paid amount to the respondent of the writ petitions after their retirement.
19. The said conducts of petitioners reveal that they had violated the OM of 1987 and OM of 1988 and acted contrary to the said provisions mentioned in the OM. Now KVS contend that it was default of the respondent to pay subscription to CPF fund and
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NC: 2024:KHC:10733-DB WP No. 25566 of 2023 C/W WP No. 25671 of 2023 WP No. 25797 of 2023 WP No. 25840 of 2023 receive their retirement benefit under CPF scheme. Hence, respondent in the writ petitions cannot file an application for conversion from CPF pension scheme to GPF pension scheme. The said contention is not tenable.
20. It is not in dispute that since KVS is an autonomous body in terms of OM dated 01.05.1987, the KVS had also issued OM dated 01.09.1988.
21. Respondents have produced before the Tribunal a letter written by Government of India, Ministry of Human Resources Development (Department of School Education and Literacy) dated 08.12.2018 at Annexure-A6, which reads as under:
"No.3-14/2012 UT-2 Government of India Ministry of Human Resource Development (Department of School Education & Literacy) New Delhi, Dated 8th December 2018 To, The Commissioner, Kendirya Vidyalaya Sangathan, 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi-110016.
(Kind Attn Dr.E.Prabhakar, Jt.Commissioner.) Subject :Conversion from CPF to GPF cum Pension Scheme.
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WP No. 25566 of 2023
C/W WP No. 25671 of 2023
WP No. 25797 of 2023
WP No. 25840 of 2023
Sir,
I am directed to refer to KVS's letter
No.110125/2013 KVS HQ CPF to GPF dated 20th September 2018 forwarding herewith 9 individual cases involving the issue of conversion from CPF to GPF cum Pension scheme.
2. All the 9 cases have been examined in this department and it has been observed that these cases do not involve any policy issues concerning switch over from CPF to GPF cum pension scheme but are cases where the KVS has not appropriately given effect to the provisions of the OM dated 1-9-1988 in terms of which the decision relating to change over of the KVS employees from CPF to GPF cum Pension scheme as circulated.
3. The cases where such departure in the provisions of the OM dated 1-09-1988 has been made by KVS during the period from 1-1-1986 to 31-12-2003 when the same was operative may be reconsidered and necessary corrective action taken by KVS in all the cases having regard to relevant facts of each individual cases.
4. Based on the examination by KVS wherever departure from the provisions of the OM dated 1-9-1988 has been established then KVS may fix the responsibility on the concerned officials, for such deviation and take appropriate disciplinary action against them. Further it is also to be seen as to how the internal audit system in KVS has failed to detect the cases where there have been departure from the extant instruction and where the provision have not been correctly
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NC: 2024:KHC:10733-DB WP No. 25566 of 2023 C/W WP No. 25671 of 2023 WP No. 25797 of 2023 WP No. 25840 of 2023 applied well in time which would not have obviated and need for action to rectify the anomalies at such a belated stage.
5. The 9 individual cases are also returned herewith in original."
22. Respondents have produced a letter written by KVS Headquarter dated 04.06.2018 to the General Secretaries AIKBTA/KEVINTA/ KBPSS, New Delhi with a list of cases for conversion from CPF to GPF pension scheme is enclosed. The said letter reads as under:
"Kendirya Vidyalaya Sangatana (HQ) 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi-11016 Phone No.26858570 FAX: 26514179 F.No.110230/1/Misc/2017-18-KVS(HQ)PF Date:04.06.2018 To, The General Secretary AIKVTA/KEVINTA/KVPSS NEW DELHI.
Sub:List of cases for conversion from CPF to GPF-cum- Pension cases.
Sir,
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NC: 2024:KHC:10733-DB WP No. 25566 of 2023 C/W WP No. 25671 of 2023 WP No. 25797 of 2023 WP No. 25840 of 2023 As decided in the J.C.M. held on 04.05.2018 at KVS (HQ) the list of applications received from individual/Regional Offices as on 30.04.2018 for consideration of conversion from CPF to GPF-cum-Pension Scheme is attached herewith.
This issue with the approval of the competent authority.
Encl: as above. Sd/- 4.6.18
(A.K.Srivastava)
Asstt. Commissioner
(Fin)
Copy to:
1. The Joint Commissioner (Pers), Kendiya Vidyalaya Sangathan (HQ), New Delhi for information."
23. The above said letter contains the names of 203 persons, which also includes the name of respondent herein. The said letter indicates that even after lapse of time, as stated in OM of 1988 the KVS to cover up its mistake, went on taking the representation and converting it from CPF to GPF pension scheme.
24. The learned counsel for respondent has submitted that the KVS has considered some of the applications even after the employees have retired from the KVS and gave the benefit of GPF pension scheme. However, the case of respondents were not
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NC: 2024:KHC:10733-DB WP No. 25566 of 2023 C/W WP No. 25671 of 2023 WP No. 25797 of 2023 WP No. 25840 of 2023 treated on par with other applicants, for the reasons best known to the KVS officer, and they did not even give justifiable reasons for rejection of representation of applicants.
25. This point is not seriously disputed by the learned advocate for petitioner. It is not the case of petitioner that after the period mentioned in the OM dated 01.09.1988, they did not consider representation of any of the employees of KVS and permitted them to convert from CPF scheme to GPF scheme. Even the letter referred at Annexure-A6 (supra), the Government of India, Ministry of Human Resources Development, Department of School Education Literacy, by letter dated 08.12.2018, has observed that the KVS has not appropriately given effect to the provisions of OM of 1988. The decision relating to changeover of KVS employees from CPF to GPF compensation scheme has not been circulated. It is also observed in the letter that the internal audit system of KVS has failed to detect the cases, where there have been departure from the extent instructions and where the provision have not been correctly applied well in time, which would not have obviated a need for action to rectify the anomalies at such a belated stage. With these observations, it has directed to
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NC: 2024:KHC:10733-DB WP No. 25566 of 2023 C/W WP No. 25671 of 2023 WP No. 25797 of 2023 WP No. 25840 of 2023 consider the nine cases, which were sent to Government of India for conversion from CPF to GPF pension scheme. It appears during the year 2018 also, such a representation of some of the employees was considered by the KVS and they were permitted to opt for GPF pension scheme. When that relaxation was given to some of the employees, then the denial of such a benefit to the respondent herein is nothing but violation of Article 14 of the Constitution of India and hence not tenable.
26. Both the sides had produced certain Judgments rendered by the High Courts as well as Hon'ble Supreme Court. The Tribunal in detail considered some of the citations and passed the impugned order. In this writ petition also, both the sides have produced catena of judgments in support of the respective cases which are not necessary to discuss in detail in this case, since said exercise is done by the Tribunal.
27. The learned counsel appearing for the petitioner has relied on the judgment in the case of STATE OF UTTAR PRADESH AND OTHERS Vs. ARVIND KUMAR, SRIVASTAVA AND OTHERS1. Facts of the present case are totally unconnected with the facts of 1 (2015) 1 SCC 347.
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NC: 2024:KHC:10733-DB WP No. 25566 of 2023 C/W WP No. 25671 of 2023 WP No. 25797 of 2023 WP No. 25840 of 2023 the said case. In the said case, it is pertaining to recruitment of certain employees. The said recruitment was held in the year 1986 and after lapse of about 9 years; the said decision was challenged by one of the candidate. Considering the delay and latches, the said writ petition was dismissed and the said findings of the High Court were confirmed by Hon'ble Apex Court. In this case, even during the year 2018 the KVS has considered the representation of some of its employees and passed appropriate orders and the said benefit was denied to the respondent herein. Therefore, the law laid down in the above said judgment will not lend any help to the contention of petitioners.
28. The learned advocate for petitioners has also relied on a Judgment in the case of MANGAT RAM Vs. STATE OF JAMMU AND KASHMIR AND OTHERS2. There is no dispute regarding principle of law laid down in the said Judgment. A party may lose his right to claim a remedy, due to latches, delay as well as acquiescence. But in this case, the said principle is not applicable. Due to default of KVS, it went on deducting contributions or subscriptions even after OM of the year 1988. At the time of 2 2018 SCC OnLine J&K 712.
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NC: 2024:KHC:10733-DB WP No. 25566 of 2023 C/W WP No. 25671 of 2023 WP No. 25797 of 2023 WP No. 25840 of 2023 retirement also benefit was paid under CPF scheme, which is referred in Annexure-A6. Therefore, the law laid down in the above said judgment by the Hon'ble High Court of Jammu and Kashmir is not applicable to the facts of the present case.
29. The learned counsel for petitioner has also relied on the judgment reported in the case of D.C.S. NEGI Vs. UNION OF INDIA AND OTHERS3. In this case, the Tribunal did not consider regarding point of delay and latches, therefore, Hon'ble Apex Court allowed the SLP and remanded the matter to the Tribunal to re- consider the said point. The learned counsel for petitioner has not produced the further orders passed by Tribunal in this regard. In this case CAT considered the said point and answered against petitioner herein. Hence, the said Judgment does not help to buttress the contentions of petitioner.
30. The Tribunal, relying on the various judgments of the High Courts as well as Hon'ble Apex Court in the similar facts and circumstances of the case, held that delay and latches will not defeat the claim of the Government servants in opting the GPF pension scheme. The Tribunal has relied on the Judgment of High 3 (2018) 16 SCC 721.
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NC: 2024:KHC:10733-DB WP No. 25566 of 2023 C/W WP No. 25671 of 2023 WP No. 25797 of 2023 WP No. 25840 of 2023 Court of Delhi in the case of SHASHI KIRAN AND OTHERS VS. UNION OF INDIA AND OTHERS LPA No.410/2014 AND CONNECTED MATTERS DISPOSED OF ON 24.08.2016 and held that delay and latches would not defeat the right of Government Servant in claiming service benefits in claiming the conversion from CPF Pension Scheme to GPF Pension Scheme. Therefore, there is no need to reproduce the same in the present case.
31. The learned counsel for respondent has relied on the following judgments of Hon'ble Supreme Court as well as other High Courts.
(i) Smt.Shashi Kiran & Others Vs. Union of India & others, LPA No.410/2014 and connected matters disposed of on 24.08.2016.
(ii) University of Delhi vs. Smt.Shashi Kiran & Others etc., decided by Hon'ble Supreme Court of India.
(iii) Union of India and Others Vs. Priyabrat Singh, W.P.(S) No.6050/2019, decided on 14.09.2022 by the High Court of Jharkhand at Ranchi.
(iv) Union of India Vs. Priyabrat Singh, SLA No.7099/2023, decided by the Hon'ble Supreme Court of India.
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NC: 2024:KHC:10733-DB WP No. 25566 of 2023 C/W WP No. 25671 of 2023 WP No. 25797 of 2023 WP No. 25840 of 2023
(v) Prema Nalinam Christian Vs. Union of India, W.P.No.24860/2018 decided on 26.11.2018 by the High Court of Judicature at Madras.
(vi) Deputy Commissioner KVS Vs. Prema Nalinam Christian SLP(c) No.017764/2019 decided by the Supreme Court of India.
(vii) Amita Ajit Desai & Others Vs. Union of India & Others, W.P.No.1331/2017 decided on 17.01.2019 by the High Court of Judicature at Bombay.
(viii) The Director (I and Q/C) & Another Vs. Amita Ajit Desai and Others, SLP (C) Diary No.16882/2019, decided on 23.08.2019 by the Hon'ble Supreme Court of India.
(ix) R. Renukadevi Vs. The Commissioner KVS and Others, W.P.no.25354/2015 decided on 05.01.2017 by the High Court of Judicature at Madras.
(x) The Commissioner KVS Vs. Renuka Devi on the file of Hon'ble Supreme Court of India.
(xi) Deputy Commissioner KVS and Others Vs. Johnson T. John, OP(CAT) No.597/2013(Z) decided on 13.08.2013 by the High Court of Kerala.
32. In all the above said judgments, it is held by Hon'ble Apex Court as well as the High Courts that such a switching over from CPF to GPF Pension Scheme is permissible and relief was
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NC: 2024:KHC:10733-DB WP No. 25566 of 2023 C/W WP No. 25671 of 2023 WP No. 25797 of 2023 WP No. 25840 of 2023 granted in favour of retired employees, even though they had approached after delay.
33. In the Judgment of High Court of Judicature at Bombay in the case of AMITA AJIT DESAI AND OTHERS Vs. UNION OF INDIA & OTHERS in WRIT PETITION NO.1331 of 2017, it is held that such conversion of Pension Scheme is permissible even after retirement. In that case also, petitioners were retired from service between 2006 to 2015 and had applied for benefit of conversion during the year 2017. Considering the law laid down by Hon'ble Apex Court, the High Court of Judicature at Bombay held that an employee can convert his CPF account to GPF Pension Scheme, subject to condition that he shall refund the contribution with interest at the rate of 8% per annum. The Union Government has challenged said Judgment before Hon'ble Apex Court in SLP (Civil) Diary No.16882 of 2019 and said SLP was dismissed on 23.08.2019. The said case is more important to the facts of present case because in that case also, employees were retired between the year 2006 to 2015 had filed writ petition during the year 2017. Though there was a delay in challenging the said orders, the High Court of Judicature at Bombay has allowed the application and it
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NC: 2024:KHC:10733-DB WP No. 25566 of 2023 C/W WP No. 25671 of 2023 WP No. 25797 of 2023 WP No. 25840 of 2023 was upheld by Hon'ble Apex Court, when it was challenged before the Hon'ble Apex Court.
34. Therefore, contention of the learned counsel for the petitioner that due to delay, latches and acquiescence, respondents have lost their right and they cannot claim for conversion from CPF account to GPF Pension Scheme is not tenable.
35. The Tribunal in its lengthy Judgments considered submissions of both parties and also discussed Judgments relied by both side parties. On the basis of principle of law laid down by the High Court as well as Hon'ble Apex Court, held that the right of respondent herein was not barred due to delay, latches and acquiescence. The CAT has also considered the contentions of the Government and to protect the interest of KVS directed the respondent in the writ petitions, to refund the contribution of CPF amount with simple interest at the rate of 8% p.a. after providing an opportunity to exercise option to the applicant. The CAT has also taken care of rights of writ petitions also. In the impugned Judgment, the CAT considered all the points raised by both the side and by assigning valid reasons, rejected the contention of writ
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NC: 2024:KHC:10733-DB WP No. 25566 of 2023 C/W WP No. 25671 of 2023 WP No. 25797 of 2023 WP No. 25840 of 2023 petitioners. There are no reasons to interfere in the said findings of the CAT and the said findings are not perverse, arbitrary, absurd or illegal to interfere by this Court.
36. For the aforesaid discussion, we answer the above raised question in favour of the respondent and pass the following:
ORDER Writ petitions are dismissed.
Sd/-
JUDGE Sd/-
JUDGE AG List No.: 1 Sl No.: 1