Himachal Pradesh High Court
Chaudhary Sarwan Kumar Hp Krishi ... vs Vipan Kumar Gupta on 17 April, 2023
Bench: Sabina, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
LPA No. 46 of 2023 a/w connected matters Judgment reserved on 11.04.2023 Decided on: 17.04.2023.
1. LPA No. 46 of 2023 Chaudhary Sarwan Kumar HP Krishi Vishvavidyalaya Palampur & another .....Appellants.
Versus Vipan Kumar Gupta .....Respondent.
2. LPA No. 47 of 2023 Chaudhary Sarwan Kumar HP Krishi Vishvavidyalaya Palampur & another .....Appellants.
Versus
Bhag Singh .....Respondent.
3. LPA No. 48 of 2023
Chaudhary Sarwan Kumar HP Krishi Vishvavidyalaya Palampur & another .....Appellants.
Versus
Paras Ram .....Respondent.
4. LPA No. 49 of 2023
Chaudhary Sarwan Kumar HP Krishi Vishvavidyalaya Palampur & another .....Appellants.
Versus Roshan Lal Padda .....Respondent.
::: Downloaded on - 17/04/2023 20:36:24 :::CIS 2 5. LPA No. 50 of 2023.
Chaudhary Sarwan Kumar HP Krishi Vishvavidyalaya Palampur & another .....Appellants.
Versus
Anjna Sood .....Respondent.
6. LPA No. 51 of 2023
Chaudhary Sarwan Kumar HP Krishi Vishvavidyalaya Palampur & another .....Appellants.
r Versus
Paras Ram .....Respondent.
7. LPA No. 52 of 2023
Chaudhary Sarwan Kumar HP Krishi Vishvavidyalaya Palampur & another .....Appellants.
Versus Parkash Chand Sharma .....Respondent.
8. LPA No. 53 of 2023Chaudhary Sarwan Kumar HP Krishi Vishvavidyalaya Palampur & another .....Appellants.
Versus Onkar Singh Sharma .....Respondent.
9. LPA No. 54 of 2023Chaudhary Sarwan Kumar HP Krishi Vishvavidyalaya Palampur & another .....Appellants.
Versus ::: Downloaded on - 17/04/2023 20:36:24 :::CIS 3 Kartar Chand Rana .....Respondent 10. LPA No. 55 of 2023 .
Chaudhary Sarwan Kumar HP Krishi Vishvavidyalaya Palampur & another .....Appellants.
Versus Parkash Chand (deceased) through LRs.....Respondent.
11. LPA No. 56 of 2023Chaudhary Sarwan Kumar HP Krishi Vishvavidyalaya Palampur & another .....Appellants.
Versus Dr. Krishan Swaroop Sharma .....Respondent.
12. LPA No. 57 of 2023Chaudhary Sarwan Kumar HP Krishi Vishvavidyalaya Palampur & another .....Appellants.
Versus Surat Ram Thakur .....Respondent.
13. LPA No. 58 of 2023Chaudhary Sarwan Kumar HP Krishi Vishvavidyalaya Palampur & another .....Appellants.
Versus Dr. Jeet Singh Thakur .....Respondent.
14. LPA No. 59 of 2023Chaudhary Sarwan Kumar HP Krishi Vishvavidyalaya Palampur & another ::: Downloaded on - 17/04/2023 20:36:24 :::CIS 4 .....Appellants.
Versus
Renu Kumari .....Respondent.
.
15. LPA No. 60 of 2023
Chaudhary Sarwan Kumar HP Krishi Vishvavidyalaya Palampur .....Appellant.
Versus Dr. Ashwani Kumar .....Respondent.
16. LPA No. 61 of 2023Chaudhary Sarwan Kumar HP Krishi Vishvavidyalaya Palampur & another .....Appellants.
r Versus
Dr. vijay Kumar Sharma .....Respondent.
17. LPA No. 62 of 2023
Chaudhary Sarwan Kumar HP Krishi Vishvavidyalaya Palampur .....Appellant.
Versus Dr. Ssuresh Chander Negi and others .....Respondents.
18. LPA No. 63 of 2023Chaudhary Sarwan Kumar HP Krishi Vishvavidyalaya Palampur & another .....Appellants.
Versus
Jeevan Singh .....Respondent.
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5
19. CWP No. 9050 of 2022
Dr. Akhilesh Sharma and others
.....Appellants.
.
Versus
Chaudhary Sarwan Kumar HP Krishi Vishvavidyalaya Palampur & another .....Respondents.
Coram:
The Hon'ble Ms. Justice Sabina, Acting Chief Justice.
The Hon'ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?
For the appellants: Mr. Naresh K. Sharma, Advocate.
For the respondent: Mr. Dilip Sharma, Senior Advocate with Mr. Manish Sharma, Advocate and Mr. Sanjeev Bhushan, Senior Advocate with Mr. Arun Raj, Advocate.
Mr. Naresh Kaul, Advocate, for the petitioner in CWP No. 9050 of 2022.
Ms. Aruna Chauhan, Advocate, for the respondents in CWP No. 9050/2022.
Sabina, Acting Chief Justice.
Vide this order, above mentioned Letters Patent Appeals and the writ petition would be disposed of, as the controversy involved in all the appeals and the writ petition is the same. All the Letters Patent Appeals have been filed against the order passed by the learned Single Judge dated 2 nd ::: Downloaded on - 17/04/2023 20:36:24 :::CIS 6 September, 2022, whereby the Original Applications filed by the respondents were allowed.
.
2. Learned counsel for the appellants has submitted that the learned Single Judge fell in error while allowing the writ petitions filed by the respondents. In fact, the respondents had already exercised their option to the effect that they were to be governed by the CPF Scheme, in terms of Notification dated 01.01.1997. Thereafter, a fresh Notification was issued on 25.07.2002, whereby, another opportunity was given to the 'left out employees' to switch over to the Pension Scheme.
Since the respondents had already exercised their option to be governed by the CPF Scheme, they could not be considered as 'left out employees'. Moreover, in case the similar benefit had been granted erroneously to Dr Kamal Dev Sharma, the respondents could not claim the benefit of negative parity.
3. Learned Senior Counsel on behalf of the respondents has submitted that as per Notification dated 01.01.1997, the employees were given an opportunity to opt to continue to be governed by the CPF Scheme or opt for Pension Scheme. It was further mentioned in the Notification that in ::: Downloaded on - 17/04/2023 20:36:24 :::CIS 7 case an existing employee does not give any option within the prescribed period, then Pension Scheme would automatically .
be applicable to him. Respondents had opted to be governed by the CPF Scheme. However, vide another Notification dated 25.07.2022, another opportunity was afforded to the 'left out employees' to switch to the Pension Scheme. The term 'left out employees' would mean the employees who had not opted for Pension Scheme but had opted for CPF Scheme. Hence, the learned Single Judge had rightly allowed the writ petitions filed by the respondents.
4. In the present appeals controversy involved is limited to the extent as to what is the meaning of the term 'left out employees' in the Notification dated 25.07.2022.
5. The facts in the present cases are not in dispute.
The respondents were the employees of the appellant University. The Pension Scheme was introduced vide Notification dated 01.01.1997. The said Notification reads as under: "In pursuance of the decision of the Board of Management taken vide item No. 12(33) of its 58th meeting held on 26.3.1996 and the Pension Rules formulated by the Committee so constituted, the ::: Downloaded on - 17/04/2023 20:36:24 :::CIS 8 ViceChancellor, HPKV, Palampur, is pleased to implement the Pension Scheme for the employees of the Himachal Pradesh Krishi Vishvavidyalaya w.e.f. 1.1.1997. The salient features of the scheme .
are as under: The existing employees of the University have the right to opt for the Pension Scheme or to continue to be governed by the CPF Rules. In case they opt for the Pension Scheme, they have to forego the University contribution credited to their CPF accouns alongwith interest thereon. If however, they opt to continue to be governed by the CPF rules, they will continue to be governed by the existing CPF rules as amended from time to time. In case an existing employee does not give any option within the prescribed period, the pension scheme would automatically be applicable to him.
The cases of employees who have retired from the University service during the period 1.1.1986 to the date of Notification of Pension Scheme, will be governed by rule 1.9 of the Pension Rules.
The existing employees/retired employees /families of the deceased employees are required to exercise option on the prescribed proforma (in quadrupilcate) within a period of 4 months from the date of notification i.e. upto 30.4.1997. In case of staff posted in Tribal Area, the period of option shall be six months i.e. upto 30.6.1997.
The Pension Scheme would be applicable to all the fresh recruitees from the date of notification of the Pension Scheme. Option once exercised shall be final. The Pension Rules and proforma for exercising option are enclosed."
6. Admittedly, in pursuance to the Notification dated 01.01.1997 respondents had opted to be governed by the CPF ::: Downloaded on - 17/04/2023 20:36:24 :::CIS 9 Scheme. AppellantUniversity again issued another Notification dated 25.07.2002 and the same reads as under: .
"On the recommendations of the Finance Committee vide Item No. 52(4) of its 52nd meeting held on 4.6.2002 the Board of Management vide Item No. 10 of its 75 th meeting held on 28.6.2002 has been pleased to give an opportunity for 2nd option to the left out existing CSKHPKV employees to either retain CPFcumGratuity Scheme or opt for GPF cumGratuity Scheme. the said option shall be exercised within 3 months from the date of notification and shall be final. The other conditions shall remain the same as notified vide notification No. 1128/88HPKV(Accts)/01 81 dated 1.11.97 and this notification is in continuation thereof."
7. Thus, vide Notification dated 25.07.2002, it is evident that a second option was given to the 'left out employees' either to retain CPFcumGratuity Scheme or opt for GPFcumGratuity Scheme. The other conditions of the Notification dated 01.01.1997 were to remain the same. The Notification dated 25.07.2002 was issued in continuation to Notification dated 01.01.1997.
8. A reading of Notification dated 25.07.2002 clearly shows that the second option was given to the ::: Downloaded on - 17/04/2023 20:36:24 :::CIS 10 employees who had not earlier opted for Pension Scheme, to opt for CPFcumGratuity Scheme or for GPFcumGratuity .
Scheme. As per Notification dated 01.01.1997 there were only two categories of employees, i.e., the employees who opt for CPF Scheme or the employees who opt for Pension Scheme. In case, an employee had failed to exercise his option within the stipulated period, he would automatically be governed by the Pension Scheme.
r So far as the respondents are concerned, they had opted for CPF Scheme.
Hence, they were the 'left out existing employees' who had not opted for the Pension Scheme. There could not have any other 'left out existing employees' of the University except those who had opted for CPF Scheme.
9. The Notification dated 25.07.2002 had, thus, been issued with a view to provide another opportunity to the existing employees to opt for Pension Scheme, although, they had opted for CPF Scheme at the first instance. There cannot be any other explanation to the term 'left out employees' except that those who had opted for CPF Scheme.
::: Downloaded on - 17/04/2023 20:36:24 :::CIS 11Apparently, all other employees had come under the Pension Scheme either on account of their option or under the .
default clause of the Notification dated 01.01.1997.
10. It has been noticed by the learned Single Judge that some of the employees had failed to exercise option to be governed by the Pension Scheme 1997 and the matter was placed before the Finance Committee of the University in its 90th meeting held on 28.3.2012. The Finance Committee held that all those employees who could not exercise their option pursuant to Notification dated 25.07.2002 would be regulated as per 1997 Pension Scheme in view of the default clause provided in the Scheme. The said decision was duly approved by the Board in its 102 nd meeting held on 03.04.2012. In this background, learned Single Judge rightly held that the default clause mentioned in the 1997 Pension Scheme would be available to Notification dated 25.07.2002 also. Although, the respondents had failed to exercise option in terms of Notification dated 25.07.2002 but as the said Notification ::: Downloaded on - 17/04/2023 20:36:24 :::CIS 12 was issued in continuation to earlier Notification dated 01.01.1997 and in view of the default clause available in the .
Notification dated 01.01.1997, the respondents were deemed to be governed under the Pension Scheme on account of non exercise of option by them. The Notification dated 25.07.2002 clearly stipulates that the other conditions of Notification dated 01.01.1997 were to remain the same. Vide Notification dated 25.07.2002 only second opportunity was granted to the employees to exercise option to retain CPF Scheme or opt for GPFcumGratuity Scheme. Since the respondents had not exercised option to continue to be governed by the CPF Scheme, they were deemed to be governed under the Pension Scheme on account of the default clause.
11. In the facts and circumstances of the present cases, learned Single Judge had, thus, rightly allowed the writ petitions filed by the respondents. No ground for interference is made out.
::: Downloaded on - 17/04/2023 20:36:24 :::CIS 1312. Accordingly all the Letters Patent Appeals are dismissed.
.
CWP No. 9050/2022.
13. In view of the dismissal of the Letters Patent Appeals, this writ petition is allowed and the decision of the respondentsUniversity in rejecting the claim of the petitioners for switching over from CPF Scheme to GPF Pension Scheme, vide Annexure P7 (colly) are quashed and set aside and the petitioners are held entitled to be governed by the Pension Scheme as framed vide Annexures P1 and P2 from the due dates with all consequential benefits.
(Sabina) Acting Chief Justice (Satyen Vaidya) Judge April 17, 2023.
(cm Thakur ) ::: Downloaded on - 17/04/2023 20:36:24 :::CIS