Central Administrative Tribunal - Delhi
Ms. Madhu Gautam vs Kvs And Others on 20 January, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 571/2010 New Delhi this the 20th day of January, 2011 Honble Mr. L.K.Joshi, Vice Chairman (A) Honble Mrs. Meera Chhibber, Member (J) Ms. Madhu Gautam, R/o A-II-401, Param Puneet Apartments, Sector-6, Plot No. 27, Dwarka, New Delhi. Applicant (By Advocate Shri M.K.Bhardwaj ) VERSUS KVS and others: 1. The Commissioner, Kendriya Vidyalaya Sangathan, 18, Institutional Area, SJS Marg, New Delhi-110016 2. Assistant Commissioner, Kendriya Vidyalaya Sangathan, JNU Campus, New Mehrauli Road, New Delhi. Respondents (By Advocate Shri U.N.Singh) O R D E R Mr. L.K. Joshi, Vice Chairman (A):
The Applicant, who is currently working as Principal in Kendriya Vidyalaya Sangathan (KVS), is aggrieved that her representation for changing over from Contributory Provident Fund scheme (CPF) to General Provident Fund (GPF) scheme has been rejected by the impugned order dated 10.12.2009. She is also impugning the letter dated 08.12.2009 from the Assistant Commissioner, KVS addressed to the Assistant Commissioner (Finance) of the KVS, in which it has been, inter alia, mentioned that her case for conversion from CPF to GPF cannot be considered after a lapse of 21 years. She is seeking directions to the Respondents to consider the Applicant under GPF-cum-Pension scheme and release all her post-retirement dues under the latter scheme.
2. Following the recommendations of the Fourth Central Pay Commission (FCPC) the Government of India decided to switch over from the Contributory Provident Fund Scheme to Pension scheme for its employees. The scheme of the Government of India was adopted mutatis mutandis for its employees by the KVS. An Office Memorandum to this effect was issued on 01.09.1988 by the KVS. Paragraph 3 of the OM, inter alia, stated that:
"3. All C.P.F. 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."
The employees were, however, given an option to continue in the CPF scheme for which they were required to give an option, as mentioned in paragraph 3.2:
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/Principal by 31.1.1989, in duplicate, in the form enclosed (one form may be sent to this office while the other kept with personal records of the employee concerned) if the employees wish to continue under the CPF Scheme. If no option is received by the Head of Office/Principal by the above date and in this office through them by 28.2.1989 the employees will be deemed to have come over to the Pension Scheme. The Head of Office/Principals are to forward in one lot options exercised by employees for retention of CPF Scheme received by them, to reach Sangathans Office latest by 28.2.1989. Where no option to continue under the CPF Scheme is received by them from any, a nil report be sent by due date viz, 28.2.1989. It is the case of the Applicant that she did not give any option to continue for the CPF scheme as she wanted to join the Pension Scheme. However, it is undisputed that deductions for contributions to the CPF continued to be made and the employer also continued to deposit its contribution to her CPF account. On 29.04.2005 the Applicant filled up a nomination form, nominating her husband as her nominee for the CPF amount in case of her death. On 12.07.2006 the Applicant submitted a representation to the Respondents to verify the facts regarding her conversion to the Pension Scheme. In this context the Assistant Commissioner of KVS wrote to Central Accounts and Examiner of Accounts Officer of KVS on 25.07.2006 asking whether the Applicant had filled up the form of option and sent it to the KVS or not (Annex A-6). She submitted another letter dated 16.07.2007 to the Senior Accounts Officer of the KVS, with reference to the aforesaid letter of 25.07.2006, stating therein that she had never opted for continuing in CPF scheme, yet the deductions continued to be made from her salary towards CPF account. She also mentioned that she had never received any intimation about her CPF account from the KVS. On the same date, she also sent a letter to the Controller of Accounts, KVS informing him that she had received a communication dated 26.06.2007 regarding her CPF account number 1745. She stated that she had received any information about her CPF account for the first time in her career. However, she also made a plea in this representation that year wise account of her CPF deposits should be made available to her so that her account could be regularised. On 04.08.2007 she again wrote to the Examiner of Accounts informing him that the balance shown in the account seemed to be wrong because only an amount of Rs.105614/- had been shown in account, whereas she had put in 28 years of service and had never withdrawn from that account earlier. The Applicant submitted yet another representation on 23.09.2009, in which she stated that in 1989 she had not given any option to continue in the CPF scheme and, therefore, she should have been deemed to have opted for the Pension Scheme. She also stated in this representation that she was forced to give the nomination in 2005 in order to take care of any eventuality if anything untoward happened to her. She also mentioned that as per the letter dated 25.07.2006 no option given by her for continuance in CPF scheme was available on record. We have already adverted to this letter above. She requested the first Respondent, Commissioner, KVS to resolve the issue at the earliest. The Respondents informed the Applicant by the impugned letter dated 10.12.2009 that her request for conversion from CPF scheme to GPF and Pension scheme could not be acceded to.
3. In his submissions before us the learned counsel for the Applicant would contend that the Respondents have acted in a most high-handed and arbitrary manner and have acted contrary to their own Office Memorandum dated 1.09.1988, wherein it had been clearly stated that all the employees who were in service on 1.01.1986 and continued thereafter would be deemed to have come under the Pension scheme. It was urged that all other employees, who had not specifically opted for CPF scheme, had been considered to have opted for GPF/Pension scheme. He would contend that it had not been denied that her form opting for CPF scheme was not available in her personal records with the Respondents. It was urged that the Respondents were not justified in stating that her representation for change to GPF scheme could not be entertained after 21 years because she had to be considered under the deeming provision to have automatically converted to GPF and Pension scheme by not giving any option to continue in the CPF scheme. It was further contended that the Respondents forced to make the nomination and also assured her that necessary action to bring her in the Pension scheme would be taken before retirement. Reliance has been placed on the judgement of the Honourable Supreme Court in Union of India and Another Vs. S L Verma and others, 2006 (14) SCALE 56.
4. The Respondents have opposed the cause of the Applicant by filing counter affidavit. The learned counsel for the Respondents would contend that in response to the letter dated 01.09.1988, asking the employees of the KVS to give option for continuing in CPF scheme, the Applicant had opted for CPF scheme and accordingly the employer's share continued to be credited in her account since April 1989 till to date. It was further contended that deductions from her salary towards CPF contribution were being made for the last 21 years and she never protested against that. The learned counsel would contend that the Applicant could not pretend that she was not aware that deductions were being made from her salary because as Principal of the KVS she was acting as Drawing and Disbursing Officer (DDO) and could not have remained oblivious to the fact that deductions were being made from her salary. Even when in the year 2005 she made her husband the nominee for her CPF contribution, she never protested about her being in CPF scheme. Reliance has been placed on the judgement of the Honourable Supreme Court in KVS and others Vs. Jaspal Kaur and another, AIR 2007 Supreme Court 2023. He would contend that although the record regarding her option to continue in the CPF scheme is not available, yet the Applicant has clearly shown by her conduct that she had opted for the CPF scheme. She even went to the extent of nominating her husband for the account. It was urged that it was implied by her actions that she had continued to be in the CPF scheme. It was argued that her contention that she was forced to make the nomination and that the Respondents had assured her that necessary action to bring her in the ambit of Pension scheme would be taken before retirement is absolutely frivolous and not based on any facts.
5. We have given our utmost consideration to the rival contentions and perused the record placed before us.
6. It is a fact that even though the copy of the Applicant's option to continue in the CPF scheme is not available on record, yet it would be seen from her conduct that till the year 2006 she never protested against her continuation in CPF scheme. It cannot be said that the Applicant would not have been aware of her continuation in the CPF scheme because deductions were being made from her salary every month towards CPF contribution and the employer's contribution was also being made. The Applicant was Principal of KVS since 2004 and in her capacity as DDO she would have known that the employer's contribution towards CPF account was being made regularly and that her salary was also being deducted for that purpose. Even in her letter dated 16.07.2007, addressed to the Examiner of Accounts and Accounts Officer, she has mentioned that she had received the details of her CPF account and asked for year wise details so that she could see that the balance has been properly kept. In her letter dated 04.08.2007 she has protested against the wrong balance shown in her CPF account. These records were submitted by the Applicant by an additional affidavit and we have already adverted to them above. The Applicant made the nomination in favour of her husband in the year 2005 without protesting that she was not a member of CPF scheme. Her plea that she did it under compulsion and that the Respondents had assured her that she would be brought under the Pension scheme seems to be an afterthought.
7. In Union of India Vs. S L Verma (supra), relied on by the Applicant, the facts were that the respondents were employees of the Bureau of Indian Standards (BIS). They were members of the CPF scheme. The BIS asked its employees by Office Memorandum dated 01.05.1987 to give their option whether to continue under the CPF scheme or not. The Office Memorandum also mentioned that the employees who did not opt for the CPF scheme, would be deemed to have opted for Pension scheme. On 02.02.1999 the BIS requested the Government of India for grant of another chance to the respondents to switch over to pension scheme. This request was not acceded to by the Government of India. The BIS again stated that only 19 employees were left out of Pension scheme and the financial implications of changeover would come only to about rupees 7.20 lakhs per annum. It was also stated that the BIS would not ask the Government for any grant and bear the burden itself. The controlling Ministry of the BIS accepted the proposition but the Ministry of Finance did not agree to that on the ground that it had been advising the autonomous bodies like BIS to continue to follow the CPF scheme and not adopt the pension scheme. The Honourable Supreme Court dismissed the appeal by observing as follows:
7. The Central Government, in our opinion, proceeded on a basic misconception. By reason of the said Office Memorandum dated 1.5.1987 a legal fiction was created. Only when an employee consciously opted for to continue with the CPF Scheme, he would not become a member of the Pension Scheme. It is not disputed that the said respondents did not give their option by 30.9.1987. In that view of the matter respondent Nos. 1 to 13 in view of the legal fiction created, became members of the Pension Scheme. Once they became the member of the Pension Scheme, Regulation 16 of the Bureau of Indian Standards (Terms and Condition of Service of Employees Regulation, 1988) had become ipso-facto applicable in their case also. It may be that they had made an option to continue with the CPF Scheme at a later stage but if by reason of the legal fiction created, they became members of the Pension Scheme, the question of their reverting to the CPF would not arise. The respondent No. 14 has correctly arrived at a conclusion that an anomaly would be created and in fact the said purported option on the part of respondent No.1 to 13 was illegal when a request was made by respondent No. 14 to the Union of India for grant of approval so that all those employees shall come within the purview of the Pension Scheme. In our opinion, the Ministry of Finance proceeded on a wrong premise that the Pension Scheme was not in existence and it was a new one. Two legal fictions, as noticed hereinbefore, were created, one by reason of the memorandum, and another by reason of the acceptance of the recommendations of the Fourth Central Pay Commission with effect from 1.1.1986. In terms of such legal fictions, it will bear repetition to state, the respondent nos. 1 to 13 would be deemed to have switched over to the pension scheme, which a fortiori would mean that they no longer remained in the CPF scheme. This case is distinguishable on facts from the instant OA before us. The BIS had agreed to the request of the employees to switch over to the pension scheme, which was rejected by the Ministry of Finance on the wrong assumption that pension scheme was not applicable to the employees of the BIS.
8. In KVS and others Vs. Jaspal Kaur and another (supra) the facts were that the respondent was a teacher in KVS. Following the circular dated 01.09.1988 options were given for CPF scheme by some of the employees. A number of employees opted for remaining in the CPF scheme. The KVS allotted new account numbers for the CPF scheme in which Jaspal Kaurs name was at serial number eight. On 15.03.1997 the respondent sent a letter to the appellant-KVS stating therein that she had been wrongly continued under the CPF scheme and that her name should be brought under the GPF scheme. Her representation was rejected by stating that she could not be moved to GPF scheme because she had opted to continue in the CPF scheme. The respondent moved the Central Administrative Tribunal, Chandigarh Bench. The Tribunal held that she was entitled to claim the benefit of pension scheme on the ground that no direct evidence has been produced by the KVS that she had opted for the CPF scheme. The Honourable Supreme Court noted that there was secondary evidence available to hold that she had been continuing in the CPF scheme. The appeal was allowed by observing that:
7. The last pay certificate issued to the respondent No.1 when she handed over charge on 23-5-1992 clearly indicates that CPF subscription of Rs.130/- was being deducted and that she opted for the pay of CPF Scheme and rate of subscription is Rs.130/- for month and allotment of CPF account number 1889 was being transferred. On the face of these documents the CAT and the High Court should not have held that option was not exercised by the respondent No.1. Pursuant to this Courts order the original service book of respondent No.1 was produced. Even on 10-6-2005 in the last pay certificate it has been stated that she had opted for the CPF Scheme. Similar is the position in the last pay certificate dated 19-4-2003 and the last pay certificate of 18-1-1982. All these documents establish that respondent No.1 had exercised the option for the CPF Scheme. Merely because the original document relating to exercise of option was not produced that should not be a ground to ignore the ample materials produced to show exercise of the option. The CAT and the High Court were not justified in taking a different view. The facts in the Jaspal Kaur (supra) are of a piece with the facts of the OA in hand. There is ample secondary evidence available that the Applicant had knowingly continued to be a member of the CPF scheme, as evidenced by the fact that she was making contribution to the CPF scheme and the employer's contribution was also being made, about which she would know by virtue of being DDO, as also by the fact that she had made a nomination in her husband's favour for the CPF account, without any protest whatsoever. It is inconceivable that the Respondents could coerce her to file the nomination form and the Applicant, working in such a responsible position as Principal, could believe naively that she would be brought to the pension scheme before her retirement. There is no basis for these contentions. The Applicant has confirmed the belief that she wished to continue in the CPF scheme by her own actions and the Respondents are justified in not accepting her plea to transfer to the pension scheme.
9. In the result the OA has to fail as being without any merit. The OA is dismissed. There will be no orders as to costs.
(Mrs. Meera Chhibber ) ( L.K.Joshi) Member (J) Vice Chairman (A) /dkm/