Kerala High Court
M.Babu vs Union Of India on 11 December, 2014
Author: Anil K. Narendran
Bench: Antony Dominic, Anil K.Narendran
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
FRIDAY, THE 30TH DAY OF JUNE 2017/9TH ASHADHA, 1939
RP.No. 62 of 2015 (Z) IN WP(C).26271/2010
-------------------------------------------
AGAINST THE JUDGMENT IN WP(C) 26271/2010 of HIGH COURT OF KERALA
DATED 11-12-2014
REVIEW PETITIONERSETITIONERS IN THE WPC:
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1. M.BABU
SR.ACCOUNTS OFFICER, ISRO INERTIAL UNIT (IISU),
VATTIYOORKAVU, VIKRAM SARABAI SPACE CENTRE,
TRIVANDRUM - 695 013.
2. L.PADMAKUMARI,
PROJECT PERSONAL SECRETARY,CCQG,
CMSE VATTIYOORKAVU, VIKRAM SARABHAI SPACE CENTRE,
TRIVANDRUM - 695 013.
3. T.THOMAS MONY,
CATERING MANAGER, SC NO.27551,
LIQUID PROPULSION SYSTEMS CENTRE,
VALLIAMALA P.O., THIRUVANANTHAPOURAM - 695 547.
BY ADVS.SRI.P.N.SANTHOSH
SMT.K.P.GEETHA MANI
RESPONDENTS/REPONDENTS IN THE WPC:
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1. UNION OF INDIA
REPRESENTED BY THE SECRETARY, DEPARTMENT OF SPACE,
GOVERNMENT OF INDIA, ANTHAREEKSHA BHAVAN, NEW B.E.L.ROAD,
BANGALORE - 560 094.
2. THE CHAIRMAN,
INDIAN SPACE RESEARCH ORGANISATION,
DEPARTMENT OF SPACE ADMINISTRATION, GOVERNMENT OF INDIA,
ANTHAREEKSHA BHAVAN, NEW BEL ROAD, BANGALORE - 560 094.
3. THE DIRECTOR,
VIKRAM SARABHAI SPACE CENTRE (VSSC), THUMBA P.O.,
TRIVANDRUM - 695 022.
4. THE DIRECTOR,
LIQUID PROPULSION SYSTEMS CENTRE, VALLIAMALA P.O.,
THIRUVANANTHAPURAM - 695 547.
RP.No. 62 of 2015 (Z) -2-
5. S.RAJESWARY,
PERSONAL SECRETARY, FMTD,
VIKRAM SARABHAI SPACE CENTRE (VSSC),
TRIVANDRUM 695 022.
R1-R4 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
R5 BY ADV. SMT.ASWATHI APPUKUTTAN
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 5.4.2017, THE
COURT ON 30.06.2017, PASSED THE FOLLOWING:
APPENDIX IN R.P.No.62/2015
PETITIONERS' ANNEXURES:
ANNEXURE A1: CERTIFIED COPY OF JUDGMENT DT.11.12.2014 IN
WPC.26271/2010 OF THIS COURT.
ANNEXURE A2: COPY OF COMMUNICATION DT.29.1.2014 ISSUED BY THE
ADDITIONAL SECRETARY AND FINANCIAL ADVISOR,
DEPARTMENT OF SPACE TO THE MINISTER OF STATE (PMO'S
OFFICE) TO BE EXAMINED BY THE DP & PW TO CONCUR WITH
THE PROPOSAL OF THE DEPARTMENT.
RESPONDENTS' EXTS: NIL
True copy
P.S.to Judge
dsn
"CR"
ANTONY DOMINIC & ANIL K. NARENDRAN, JJ.
-----------------------------------------
Review Petition No.62 of 2015
in W.P.(C)No.26271 of 2010
-----------------------------------------
Dated this the 30th day of June, 2017 ANIL K. NARENDRAN, J.
This review petition arises out of the judgment of this Court dated 11.12.2014 in W.P.(C).No.26271/2010. The review petitioners, who are applicants 1, 2 and 4 in O.A.No.852/2009 on the file of the Central Administrative Tribunal, Ernakulam Bench filed the said writ petition under Articles 226 and 227 of the Constitution of India seeking an order to set aside Ext.P4 order dated 6.8.2010 of the Tribunal in that O.A. In the said writ petition, the 3rd applicant in the O.A. was arrayed as the 5th respondent.
2. After considering the rival contentions, this Court by the judgment dated 11.12.2014 dismissed W.P.(C).No.26271/2010, declining interference on Ext.P4 order of the Tribunal. This Court held that, the petitioners' case cannot be equated to S.L. Verma's case [Union of India v. S.L. Verma, 2006 (12) SCC 53] and that, they are guilty of delay and laches in challenging Annexure A5 OM No.2/10(2)/87-I dated 21.10.1987 and Annexure A6 Memorandum No.VSSC/EST/PCR/IC/08 dated 30.11.1987 issued by the Government of India, Department of Space (for brevity, 'DoS'). While declining interference on Ext.P4 order, this Court has also noticed that almost in similar circumstances the Tribunal granted relief by R.P.No.62/2015 in -2- W.P.(C)No.26271/2010 allowing O.A.No.685/2007, which order was set aside by this Court in W.P.(C)No.22574/2009, and it was following the said judgment that the Tribunal passed the impugned order.
3. Now the review petitioners are before this Court in this review petition filed under Order XLVII Rule 1 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') contending that there is error apparent on the face of the record warranting review of the judgment of this Court dated 11.12.2014 in W.P.(C).No.26271 of 2010.
4. We heard arguments of learned counsel for the review petitioners (applicants 1, 2 and 4 before the Tribunal) and also learned Assistant Solicitor General of India, representing respondents 1 to 4.
5. In Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [1980 (2) SCC 167] the Apex Court held that, if the view adopted by the court in the original judgment is a possible view, having regard to what the record states; it is difficult to hold that there is error apparent on the face of the record. In Thungabhadra Industries Ltd v. Government of Andra Pradesh [AIR 1964 SC 1372] the Apex Court held that, review is, by no means an appeal in disguise, whereby an erroneous decision is reheard and corrected, but lies only for correcting patent errors.
6. In Parsion Devi v. Sumitri Devi [1997 (8) SCC 715] the R.P.No.62/2015 in -3- W.P.(C)No.26271/2010 Apex Court reiterated that, a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power review under Order XLVII Rule 1 of the Code of Civil Procedure, 1908. In exercise of the jurisdiction under Order XLVII Rule 1 of the Code, it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'. Later, in Lily Thomas v. Union of India [2006 (3) SCC 224] the Apex Court held that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review.
7. In view of law laid down by the Apex Court in the decisions referred to supra, whilst exercising the power by reopening the case and rehearing the entire matter, this Court cannot be oblivious of the provisions contained in Order XLVII Rule 1 of the Code and also the limits within which courts can exercise the power of review, which is by now well settled in a catena of decisions.
8. The review petitioners (hereinafter referred to as 'the R.P.No.62/2015 in -4- W.P.(C)No.26271/2010 petitioners') and also the 5th respondent are Administrative staff of Vikram Sarabhai Space Centre (for brevity, 'VSSC') and Liquid Propulsion Systems Centre (for brevity, 'LPSC'), which are constituent units of Indian Space Research Organisation (for brevity, 'ISRO'). They approached the Tribunal in O.A.No.852 of 2009 seeking an order to quash Annexures A16 to A18 memorandums dated 8.9.2009 of the 3rd respondent and Annexure A19 memorandum dated 19.8.2009 of the 4th respondent; a declaration that they have already come over to the General Provident Fund (for brevity, 'GPF')/Pension Scheme as per the provisions of Annexure A4 OM No.4/1/87-PCI-I dated 1.5.1987 issued by Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Pension and Pensioners Welfare (for brevity, 'DoP&PW') and hence Annexures A16 to A19 have no legal existence; and an order directing respondents 1 to 4 to grant them all benefits as if they have opted and continued in the GPF/Pension Scheme. The O.A. was later amended by incorporating a declaration that Annexure A5 OM dated 21.10.1987 and Annexure A6 memorandum dated 30.11.1987 issued by DoS are invalid.
9. The pleadings on record would show that, the 1st petitioner, who joined VSSC on 14.3.1984 as Junior Stenographer was confirmed in that post with effect from 1.3.1989. Thereafter he was promoted as R.P.No.62/2015 in -5- W.P.(C)No.26271/2010 Stenographer with effect from 28.3.1992; as Accounts Officer with effect from 21.10.1998; and as Senior Accounts Officer with effect from 31.3.2005. The 2nd petitioner, who joined VSSC on 23.2.1983 as Junior Stenographer was confirmed in that post with effect from 1.3.1989. Thereafter she was promoted as Stenographer with effect from 4.4.1991; as Project Stenographic Assistant with effect from 5.3.2004; and as Project Personal Secretary with effect from 19.10.2006. The 3rd petitioner, who joined VSSC on 23.3.1984 as Canteen Supervisor was confirmed in that post with effect from 1.3.1988. Thereafter he was promoted as Assistant Canteen Manager with effect from 11.9.1995; and as Canteen Manager with effect from 25.7.2002. The post of Canteen Manager was re-designated as Catering Manager, with effect from 12.10.2006, and the 3rd petitioner was transferred to LPSC, Vellimala. The 5th respondent (3rd applicant in the O.A.), who joined VSSC on 1.8.1984 as Junior Stenographer was confirmed in that post with effect from 1.3.1989. Thereafter she was promoted as Personal Assistant with effect from 24.12.2001; and as Personal Secretary with effect from 1.11.2006.
10. The 1st and 2nd petitioners and also the 5th respondent were appointed in substantive capacity against the post of Junior Stenographer in VSSC with effect from 1.1.1989, vide Annexure A1 R.P.No.62/2015 in -6- W.P.(C)No.26271/2010 Confirmation Order No.19/89 dated 1.3.1989 of the 3rd respondent, wherein it has been stated that they will be governed by the Contributory Provident Fund Rules (India), 1962 (for brevity, 'CPF Rules') only as they had exercised their option to continue under the CPF Scheme in terms of Annexure A5 DoS OM dated 21.10.1987. The fact that they had acknowledged the receipt of Annexure A1 Confirmation Order in March, 1989 is not in dispute. Annexures A7, A8 and A9 form of option would also show that they had exercised such an option on 8.12.1987, 21.12.1897 and 8.12.1987 respectively, to continue under the CPF Scheme in terms of Annexure A4 DoP&PW OM dated 1.5.1987.
11. Similarly, the 3rd petitioner was appointed in substantive capacity against the post of Canteen Supervisor in VSSC, with effect from 1.3.1988, vide Annexure A2 Confirmation Order No.40/90 dated 1.11.1990 of the 3rd respondent, wherein it has been stated that since his service is already governed by the GPF/Pension Scheme, he was required to submit nomination towards Death cum Retirement Gratuity (for brevity, 'DCRG') and also the details of his family members who are eligible for family pension. Accordingly, the nomination for DCRG and the details of the family members submitted by the 3rd petitioner were accepted by the Head Office, which is evident from Annexure A3 communication dated 25.1.1991 of the 3rd respondent. R.P.No.62/2015 in -7- W.P.(C)No.26271/2010
12. However, vide Annexure A11 office order No.VSSC/EST/G/A- 11/90 dated 12.5.1997 of the 3rd respondent, Annexure A2 Confirmation Order No.40/90 dated 1.11.1990 was amended to the effect that, "the service of the 3rd petitioner is governed by the CPF Scheme", since he had exercised option to continue under the CPF Scheme in terms of Annexure A5 DoS OM dated 21.10.1987. Annexure A10 form of option would show that the 3rd petitioner had exercised such an option on 4.12.1987 to continue under the CPF Scheme in terms of Annexure A4 DoP&PW OM dated 1.5.1987. The fact that he had acknowledged the receipt of Annexure A11 order in May, 1997 is also not in dispute.
13. It is pertinent to note at this juncture that, the specific stand taken by respondents 1 to 4 in Para.7 of their reply statement filed in the O.A. was that the petitioners and the 5th respondent had exercised their option for continuing under the CPF Scheme based on Annexure A5 DoS OM dated 21.10.1987. In the case of the 1st and 2nd petitioners and the 5th respondent, this fact was mentioned in Annexure A1 confirmation order. However, in the case of the 3rd petitioner, it was inadvertently mentioned in Annexure A2 confirmation order that he is governed by the GPF Scheme, which was subsequently rectified/clarified vide Annexure A11 office order dated 12.5.1997. Respondents 1 to 4 have also pointed out that the 3rd petitioner continued as a CPF holder throughout his R.P.No.62/2015 in -8- W.P.(C)No.26271/2010 service without any change in the CPF A/c No.106648 allotted to him during 1984.
14. The pleadings on record would show that, ISRO was formed as an autonomous body during August, 1969 and at that time its employees were governed by the CPF Scheme. On 1.4.1975, ISRO was converted into a Central Government Organisation and it was brought under the DoS. Consequently, the GPF/Pension Scheme was also introduced in ISRO and its constituent units. VSSC and LPSC are the major constituent units of ISRO, in which the core group consists of Scientists/Engineers and Technicians in the Scientific and Technical category of personnel and the Administrative staff play an ancillary/ supporting role.
15. The petitioners and the 5th respondent, who joined VSSC during 1983-84 in the Administrative category were initially admitted to the CPF Scheme as per the then existing practice. On many occasions, the Government of India extended option to the CPF holders to switch over to the GPF/Pension Scheme. DoS has also extended such option adopting the policy of the Government of India. Though in Para.4(viii) of the O.A. the applicants would contend that, at the time of their confirmation they were not given an opportunity to either opt for GPF/Pension Scheme or to continue in the CPF Scheme, it is an admitted R.P.No.62/2015 in -9- W.P.(C)No.26271/2010 fact that, the applicants never objected to their continuance under the CPF Scheme based on their option exercised vide Annexures A7 to A10 in the year 1987, till the submission of Annexures A12 to A15 representations dated 12.6.2008, 18.7.2008, 9.7.2008 and 16.6.2008 respectively before the 1st respondent requesting a chance to opt for the GPF/Pension Scheme.
16. The 1st and 2nd petitioners and also the 5th respondent were well aware of their continuance under the CPF Scheme based on such options, on receipt of Annexures A1 confirmation order issued by the 3rd respondent dated 1.3.1989. The 3rd petitioner, having exercised option vide Annexure A10 form of option dated 4.12.1987, cannot plead ignorance of his continuance under the CPF Scheme based on such option, taking advantage of the mistake committed by the 3rd respondent while issuing Annexure A2 confirmation order dated 1.11.1990, especially when that mistake was subsequently rectified/ clarified vide Annexure A11 office order dated 12.5.1997.
17. The Fourth Central Pay Commission has recommended that all the CPF beneficiaries in service as on 1.1.1986 should be deemed to have come over to the Pension Scheme on that date unless they specifically opt out to continue under the CPF Scheme. After consideration of the said recommendation, the Central Government R.P.No.62/2015 in -10- W.P.(C)No.26271/2010 decided to accept and implement the same and accordingly issued Annexure A4 DoP&PW OM dated 1.5.1987 indicating the manner in which it has to be implemented.
18. Para.3 of Annexure A4 DoP&PW OM provides that, all the CPF beneficiaries, who were in service as on 1.1.1986 and who are still in service on the date of issue the said OM will be deemed to have come over to the Pension Scheme. Para.3.2. provides further that, the employees of the category mentioned in Para.3 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 Office by 30.9.1987 in the form enclosed to the said OM, if the employees wish to continue under the CPF scheme. If no option is received by the Head Office by the above said date the employee will be deemed to have come over to the Pension Scheme.
19. Para.3.6 of Annexure A4 OM provides that the option once exercised shall be final. Going by Para.4.3 of the said OM, action to discontinue subscriptions/contributions to CPF account will be taken only after the last date specified for exercise of option, viz., 30.9.1987. Para.6.1 of the said OM makes it clear that these orders shall apply to all Civilian Central Government Employees who are subscribing to CPF under the CPF Rules. As per Para.6.3, these orders shall also not apply R.P.No.62/2015 in -11- W.P.(C)No.26271/2010 to the Scientific and Technical personnel of the Department of Atomic Energy, Department of Space, Department of Electronics and such other Scientific Departments as have adopted the system prevailing in the Department of Atomic Energy. In that respect separate orders will be issued in due course.
20. According to the respondents, Annexure A4 DoP&PW OM dated 1.5.1987 was implemented in DoS/ISRO vide Annexure A5 DoS OM dated 21.10.1987 after consultation/concurrence with the Department of Personnel and Training (for brevity, 'DoPT') and also DoP&PW. In support of the said contention, the respondents relied on Annexure R1(A) communication dated 22.9.1987 of the Deputy Secretary, DoPT addressed to the Additional Secretary, DoS wherein it has been stated that, as far as the Administrative staff of DoS and Department of Atomic Energy is concerned action will have to be taken for extending the orders issued in Annexure A4 DoP&PW OM dated 1.5.1987 without waiting for any further orders in this behalf. As discernible from 'DoP&PW Record Note of Discussion', which forms part of Annexure R1(A) DoPT communication dated 22.9.1987, in the said discussion it was decided to extent the orders issued in Annexure A4 DoP&PW OM dated 1.5.1987 in the case of Administrative staff in DoS and Department of Atomic Energy. Accordingly, DoS, after examining R.P.No.62/2015 in -12- W.P.(C)No.26271/2010 the orders contained in Annexure A4 DoP&PW OM dated 1.5.1987 and in consultation with DoP&PW, issued Annexure A5 OM dated 21.10.1987 by which all employees of DoS/ISRO, irrespective of whether they are Scientific/Technical or Administrative staff and admitted to the CPF Scheme on their initial appointment and on their confirmation are given an option to either continue under the CPF Scheme or to come over to the GPF/Pension Scheme.
21. As per clause (i) of Annexure A5 DoS OM dated 21.10.1987, all existing Administrative staff of DoS/ISRO, whether permanent or temporary, who are governed by the CPF Scheme and who were in service as on 1.1.1986 and who are still in service on the date of issue of the said OM, will be deemed to have come over to the GPF/Pension Scheme. The Administrative staff referred to in clause (i) above will however, have an option to continue under the CPF Scheme, if they so desire. Such option will have to be exercised and conveyed to the concerned authorities in the Centres/Units on or before 31.12.1987 in the form attached to DoP&PW OM, if the employees wish to continue under the CPF Scheme. If no option is received on or before 31.12.1987, the employees will be deemed to have come over to the GPF/Pension Scheme.
22. By Annexure A5 DoS OM dated 21.10.1987, all Centres/ R.P.No.62/2015 in -13- W.P.(C)No.26271/2010 Units of DoS/ISRO were requested to bring the contents of the said OM to the notice of all employees concerned, in order to avoid complaints regarding non-intimation of option by any of the employees. A copy of Annexure A4 DoP&PW OM dated 1.5.1987 was also enclosed along with Annexure A5 DoS OM dated 21.10.1987, and it was made clear that all other instructions contained in the said DoP&PW OM regarding the procedure to be followed in regard to CPF beneficiaries belonging to Administrative categories who have retired, etc., contained in Paras.3 to 6 will apply mutatis mutandis in respect of the employees of DoS/ISRO with the exception that the date '30.9.1987' may be substituted by '31.12.1987', wherever applicable.
23. Based on Annexure A5 DoS OM dated 21.10.1987, the 3rd respondent issued Annexure A6 Memorandum No.VSSC/EST/PCR/IC/08 dated 30.11.1987, by which the Administrative staff of VSSC who are governed by the CPF Scheme and has been in service prior to 1.1.1986 were requested to exercise option in the prescribed form enclosed therewith and return it to the said respondent on or before 31.12.1987, in case they decide to continue under the CPF Scheme. A copy of Annexure A5 DoS OM dated 21.10.1987 was also circulated among the Administrative staff separately, which is discernible from Annexure A6 Memorandum.
R.P.No.62/2015 in -14- W.P.(C)No.26271/2010
24. The fact that Annexure A4 DoP&PW OM dated 1.5.1987 was implemented in DoS/ISRO only by Annexure A5 DoS OM dated 21.10.1987, after consultation/concurrence with DoPT and also DoP&PW, is evident from the said OM dated 21.10.1987 and also Annexure A6 Memorandum dated 30.11.1987. As we have already noticed, Annexure A5 OM was issued based on Annexure R1(A) communication of the Deputy Secretary, DoPT, which was based on 'DoP&PW Record Note of Discussion', wherein it was decided to extent the orders issued in Annexure A4 OM dated 1.5.1987 in the case of Administrative staff in DoS and Department of Atomic Energy. By Annexure A5 DoS OM issued in consultation with DoP&PW made it clear that the instructions contained in Annexure A4 OM regarding the procedure to be followed in regard to CPF beneficiaries belonging to Administrative categories will apply mutatis mutandis in respect of the employees of DoS/ISRO with the exception that the date '30.9.1987' may be substituted by '31.12.1987', wherever applicable.
25. The fact that, prior to the issuance of Annexure A6 Memorandum dated 30.11.1987, Annexure A4 DoP&PW OM dated 1.5.1987 was neither communicated to the Administrative staff of VSSC nor they were required to exercise option on or before the cutoff date of 30.9.1987 specified therein, in case they decide to continue under the R.P.No.62/2015 in -15- W.P.(C)No.26271/2010 CPF Scheme, is virtually admitted in Para.4(ix) of the O.A. Pursuant to Annexure A5 DoS OM dated 21.10.1987 and Annexure A6 Memorandum dated 30.11.1987, the petitioners and the 5th respondent had exercised option to continue under the CPF Scheme, vide Annexures A7, A8 and A9 form of option dated 8.12.1987, 21.12.1897 and 8.12.1987 respectively. Similarly, the 3rd petitioner had exercised option to continue under the CPF Scheme, vide Annexure A10 form of option dated 4.12.1987. The said facts are also not in dispute.
26. In Para.4(x) of the O.A. the applicants would contend that, they gave option vide Annexures A7 to A10 to come over to the CPF Scheme without understanding the scope of Annexure A4 DoP&PW OM dated 1.5.1987. They would also contend that, the action of DoS in obtaining such an option based on Annexure A5 OM dated 21.10.1987, after the cutoff date of 30.9.1987 prescribed in Annexure A4 OM dated 1.5.1987 is invalid, which does not have any legal footing. The aforesaid contentions have no legs to stand, inasmuch as, Annexure A4 OM dated 1.5.1987 was implemented in DoS/ISRO only by Annexure A5 OM dated 21.10.1987, in consultation/concurrence with DoPT and also DoP&PW, with the exception that the date '30.9.1987' may be substituted by '31.12.1987', wherever applicable. Further, for the first time, the employees of DoS/ISRO were required/allowed to exercise option to R.P.No.62/2015 in -16- W.P.(C)No.26271/2010 continue under the CPF Scheme in terms of Annexure A4 OM only by Annexure A6 Memorandum dated 30.11.1987, whereby they were required to submit such option on or before 31.12.1987.
27. Going by the averments in Para.4.(xii) and (xiii) of the O.A., since the applicants were treated as CPF opted employees, they submitted several representations to DoS to treat them as having opted the GPF/Pension Scheme and they were also under the hope that the Government of India will give another chance to switch over to the GPF/Pension Scheme. In the meanwhile, the Apex Court in S.L. Verma's case (supra) held that, in view of the legal fiction created by Annexure A4 DoP&PW OM dated 1.5.1987, only when an employee consciously opted on or before 30.9.1987 to continue with the CPF Scheme, he would not become a member of the GPF/Pension Scheme. Relying on the said decision of the Apex Court, they submitted Annexures A12 to A15 representations before the 1st respondent, which were rejected by Annexures A16 to A19 memorandums of the 1st respondent, by which they were informed that the matter regarding extending one more option to the Administrative staff of ISRO to switch over from the CPF Scheme to GPF/Pension Scheme in the light of the judgment of the Apex Court in S.L. Verma's case has been examined in DoS in consultation with the Department of Expenditure. However, the R.P.No.62/2015 in -17- W.P.(C)No.26271/2010 Department of Expenditure has not agreed to the proposal for extending one more option to the Administrative staff of ISRO and that, the judgment of the Apex Court is applicable in respect of those applicants only.
28. Before the Tribunal, the applicants relied on Annexure A20 order dated 21.4.2009 of the Tribunal in O.A.No.687/2007. The applicant in the said O.A., while in service as an Administrative staff in VSSC, exercised an option on 20.12.1987 to continue under the CPF Scheme, in terms of DoS OM dated 21.10.1987 (Annexure A5 OM in the instant case). The said option was accepted and an entry to that effect was also made in his service book on 5.2.1988 that he opted to continue under the CPF Scheme. However, there was a subsequent entry in his service book to the effect that he has not exercised any option to retain the CPF benefits in terms of Annexure A5 OM dated 25.10.1987 and hence he deemed to have opted for the GPF/Pension Scheme. The applicant therein made a representation on 9.1.2006 to grant him the benefits of GPF/Pension Scheme, which was turned down by an order issued on 31.5.2007, which was his date of superannuation. The respondents therein, relying on Annexure A5 OM dated 25.10.1987 contended that it was in response to the said OM, endorsing therewith a copy of OM dated 1.5.1987 (Annexure A4 OM in the instant case) fixing R.P.No.62/2015 in -18- W.P.(C)No.26271/2010 the cutoff date for exercising the option to remain under the CPF Scheme up to 31.12.1987, the applicant therein exercised option on 29.12.1987. As such, the law laid down by the Apex Court in S.L. Verma's case has no application to the facts of the case before the Tribunal. Repelling the said contention the Tribunal allowed the said O.A. holding that the respondents therein ought not to have accepted the option made by the applicant on 29.12.1987, which was made beyond the date prescribed in Annexure A4 OM dated 1.5.1987. When there is already an entry made in the service book of the applicant to the effect that he has not exercised any option to refrain the CPF benefits in terms of Annexure A5 OM dated 21.10.1987 and deemed to have opted for the GPF/Pension Scheme, the respondents ought to have extended that benefit at least when the applicant has made a specific request, vide his representation dated 9.1.2006. Accordingly, the Tribunal vide Annexure A20 order allowed O.A.No.687/2007 and directed the respondents therein to treat him as an employee who deemed to have opted for the GPF/Pension Scheme in terms of Annexure A4 OM dated 1.5.1987, to work out his entitlements under the said Scheme and to disburse him all the consequential benefits.
29. Annexure A20 order of the Tribunal in O.A.No.687/2007 was under challenge before this Court in WP(C)No.22574/2009. This Court, R.P.No.62/2015 in -19- W.P.(C)No.26271/2010 by Annexure R1 judgment dated 11.2.2010 allowed the said writ petition by setting aside Annexure A20 order of the Tribunal. As discernible from Para.5 of Annexure R1 judgment, the issue that came up for consideration in that case was as to the legal validity of Annexure A5 DoS OM dated 21.10.1987 fixing an extended period for exercising option to continue under the CPF Scheme by the employees of DoS/ISRO. In Para.6 of the said judgment this Court noticed that the Tribunal, without examining the question of validity of Annexure A5 DoS OM dated 21.10.1987, expressed the view that the Department should not have accepted the option exercised by the applicant therein on 29.12.1987, which was beyond the cutoff date prescribed in Annexure A4 DoP&PW OM dated 1.5.1987 and that an entry recorded in the service book of the applicant that he shall be deemed to have opted for the GPF/Pension Scheme was taken into account by the Tribunal to sustain the conclusion formed as above.
30. In Annexure R1 judgment this Court found that while allowing O.A.No.687/2007 by Annexure A20 judgment the Tribunal failed to notice that there was no challenge against Annexure A5 DoS OM dated 21.10.1987 and what was provided in the said OM was only an extended period to the employees under that Department in exercising their option as to whether they wish to continue in the CPF R.P.No.62/2015 in -20- W.P.(C)No.26271/2010 Scheme. Annexure A5 OM reveals that it has been issued in consultation with the DoP&PW, which had issued Annexure A4 OM dated 1.5.1987. In effect, both Annexures A4 and A5 OMs have been issued by the Government of India. When there was no challenge against Annexure A5 OM by the applicant and he had exercised an option under that OM to continue in the CPF Scheme, there was no scope for any enquiry by the Tribunal, leave alone the question of any finding, as to the validity of Annexure A5 OM.
31. In Annexure R1 judgment, after referring to the decision in S.L. Verma's case, this Court held that the law laid down by the Apex Court in the said decision has no application to the facts of the case on hand. In the case before the Apex Court, the employees did not exercise any option to continue under the CPF Scheme, but still the employer proceeded under the misconception that non-exercise of option would disentitle the employee to switch over to the GPF Scheme. It was in that circumstances, the Apex Court observed that by reason of Annexure A4 OM dated 1.5.1987 a legal fiction was created and that, only when an employee consciously opted for to continue with the CPF Scheme, he would not become a member of the GPF/Pension Scheme. On the other hand, the applicant in O.A.No.687/2007 did exercise the option to continue in the CPF Scheme within the period provided by the employer R.P.No.62/2015 in -21- W.P.(C)No.26271/2010 under Annexure A5 OM dated 21.10.1987 and it was accepted. The challenge raised in O.A.No.687/2007 is against the order rejecting his representation belatedly filed to switch over to the GPF/Pension Scheme by providing an extended period to exercise such option. Therefore, the case canvassed by the applicant therein was not one of non-exercise of option, but for extension of time to exercise a fresh option to come under the GPF/Pension Scheme.
32. In Annexure R1 judgment this Court held further that, what is evident from Annexure A5 DoP&PW OM dated 1.5.1987 and Annexue A5 DoS OM dated 21.10.1987 is that, by virtue of Annexure A5 OM employees of DoS governed by the CPF Scheme were given an extended period to exercise option as to whether they wish to continue under the CPF Scheme and such employees were informed that if no such option is exercised within the cutoff date of 31.12.1987 they would be treated as covered by the GPF/Pension Scheme. The applicant had consciously given an option to continue in the CPF Scheme within the cutoff date, i.e., 31.12.1987, and till he retired on superannuation continued to subscribe contribution only under that Scheme. The Division Bench observed that, probably, in view of the recommendations made by the Fifth and Sixth Pay Commissions, the applicant noticed it is more advantageous to switch over to the GPF/Pension Scheme since the R.P.No.62/2015 in -22- W.P.(C)No.26271/2010 pensionary benefits extended to the employees governed by that Scheme has undergone a sea change. So much so, at a belated stage, long after exercising the option, the applicant moved the representation to switch over to the GPF/Pension Scheme. As the option once exercised by the employee is final, the decision taken by the authorities to reject that representation by the order dated 31.5.2007, which was impugned in O.A.No.687/2007, is within their competence and authority. In Annexure R1 judgment, the Division Bench has stated in categorical terms that, the challenge against the order dated 31.5.2007, which was canvassed in O.A.No.687/2007, without impeaching the validity of Annexure A5 DoS OM dated 21.10.1987 and the orders accepting the option given by applicant therein under that OM and accepted by the Department, in the given facts of the case, has no merit at all.
33. The applicant in O.A.No.687/2007 filed R.P.No.781/2010 under Order XLVII Rule 1 of the Code of Civil Procedure, 1908 seeking review of Annexure R1 judgment in WP(C)No.22574/2009. In the said review petition it was contended that, while rendering Annexure R1 judgment the Division Bench of this Court had acted erroneously in appreciating the law laid down by the Apex Court in S.L. Verma's case, inasmuch as the employees therein had also exercised option on a subsequent date. It was in that context, in Para.7 of the said decision R.P.No.62/2015 in -23- W.P.(C)No.26271/2010 the Apex Court observed as follows; "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 become members of the Pension Scheme, the question of their reverting to the CPF Scheme would not arise." In the said review petition it was contended further that, assuming that the employees therein have not exercised any option on a subsequent date, even then the dictum laid down by the Apex Court that only when an employee consciously opted for to continue with the CPF Scheme by giving his option by 30.9.1987 he would not become a member of the GPF/Pension Scheme will squarely apply in the case of the applicant. Relying on Annexure A2 document produced along with R.P.No.781/2010 (copy of reply dated 4.2.2009 issued by the Central Public Information Officer, ISRO, Bangalore) it was contended that, DoP&PW never authorised DoS to obtain option from its Administrative staff to continue under the CPF Scheme beyond the cutoff date of 30.9.1987 specified in Annexure A4 OM dated 1.5.1987. In the review petition it was also contended that, since the Department has not taken a ground either before the Tribunal or before this Court that the applicant has not challenged Annexure A5 DoS OM dated 21.10.1987, the finding in Annexure R1 judgment in W.P.(C)No.22574/2009 that, "when there was no challenge against Annexure A5 OM by the applicant R.P.No.62/2015 in -24- W.P.(C)No.26271/2010 and he had exercised an option under that OM to continue in the CPF Scheme, there was no scope for any enquiry by the Tribunal, leave alone the question of any finding, as to the validity of Annexure A5 OM"
is having no legal footing.
34. After considering the aforesaid contentions, the Division Bench of this Court by the order dated 7.4.2011 dismissed R.P.No.781/2010 holding that they do not find any ground to hold that there is any error apparent on the face of the judgment sought to be reviewed. In the said order, the Division Bench has reiterated that, the consideration in the decision of the Apex Court in S.L. Verma's case revolved around the finality of Annexure DoP&PW OM dated 1.5.1987 and the effect of the cut off date fixed as per that OM. In the said decision it was found that the Regulations applicable to the employees concerned (i.e., the employees of Bureau of Indian Standards) would operate only subject to the aforesaid OM dated 1.5.1987. However, in the case of Administrative staff of DoS/ISRO, Annexure A5 OM dated 21.10.1987 issued by DoS is one issued specifically stating that the matter has been considered in consultation with the DoP&PW, which was not the case in S.L. Verma's case. Having regard to the consultation, which is explicit on the face of the Annexure A5 DoS OM dated 21.10.1987, the Division Bench found no ground to hold that Annexure R.P.No.62/2015 in -25- W.P.(C)No.26271/2010 A4 DoP&PW OM dated 1.5.1987 would override and operate independently. Therefore, the Division Bench held that, in so far as DoS is concerned, the cutoff date was postponed to 31.12.1987 as regards the operation of Annexure A4 DoP&PW OM dated 1.5.1987 is concerned. Since the applicant in O.A.No.687/2007 had exercised option before
31.12.1987, the cutoff date prescribed in Annexure A5 DoS OM dated 21.10.1987, the Division Bench found no ground to hold that there is any error apparent on the face of Annexure R1 judgment sought to be reviewed. The order dated 7.4.2011 in R.P.No.781/2010 reads thus:
"This application for review of judgment dated 11.2.2010 is on the premise that this Court had acted erroneously in appreciating the law laid down by the Apex Court in Union of India and another Vs. S.L. Verma and others [(2006) 12 SCC 53] in the context of contrasting the effect of OM dated 1.5.1987 issued by the Government of India, through the Ministry of Personnel and Training, Administrative Reforms and Public Grievances and Pension (Department of Pension and Pensioners' Welfare), with OM dated 21.10.1987 issued by the Government of India, Department of Space.
2. The consideration in S.L. Verma (Supra) revolved around the finality of OM dated 1.5.1987 and the effect of the cutoff date fixed as per that OM. It was found that Regulation 16 of Bureau of Indian Standards (Terms and Conditions of Service of Employees) Regulations, 1988, would operate only subject to the aforesaid OM dated 01.05.1987. However, in the case in hand, the OM dated 21.10.1987, issued by the Department of Space, is one issued R.P.No.62/2015 in -26- W.P.(C)No.26271/2010 specifically stating that the matter has been considered in consultation with the Department of Pension and Pensioners' Welfare, which was not the case in S.L. Verma (Supra). Having regard to the consultation, which is explicit on the face of the Department of Space's OM dated 21.10.1987, we do not find any ground to hold that OM dated 1.5.1987 issued through the Ministry of Personnel and Training, Administrative Reforms and Public Grievances and Pension would override and operate independently. We have necessarily to take it that, in so far as the Department of Space is concerned, the cutoff date was postponed to 31.12.1987 as regards the operation of OM dated 1.5.1987 issued through the Ministry of Personnel and Training, Administrative Reforms and Public Grievances and Pension is concerned. Admittedly, the petitioner had exercised option before 31.12.1987. We do not, therefore, find any ground to hold that there is any error apparent on the face of the judgment sought to be reviewed.
In the result, the Review Petition fails and it is accordingly dismissed. No costs."
35. S.L. Verma's case (supra) arose out of the judgment dated 16.9.2004 rendered by a Division Bench of the Delhi High Court in W.A.No.244/2004, by which the Division Bench disposed of the said writ appeal by modifying to certain extent the order of the learned Single Judge dated 22.10.2003 in C.W.P.No.2107/2002. The facts relevant for our purpose, as discernible from the order of the learned Single Judge are that, the writ petitioners therein were working with the Bureau of Indian Standards/the 3rd respondent therein. After the implementation of R.P.No.62/2015 in -27- W.P.(C)No.26271/2010 Fifth Central Pay Commission, the writ petitioners who were under the CPF Scheme were given an option as to whether they wish to continue in the CPF Scheme. The employees were required to exercise their option otherwise, they would be deemed to have switched over to the Pension Scheme. The writ petitioners opted to continue under the CPF Scheme. Later on they wanted to changeover form the CPF Scheme to Pension Scheme.
36. On the representation made by the writ petitioners, the 3rd respondent agreed for changeover from the CPF Scheme to Pension Scheme laying down certain conditions. The said conditions reproduced in the order of the learned Single Judge dated 22.10.2003 in C.W.P.No.2107/2002 read thus;
"Item: 2.6. Changeover from Contributory Provident Fund (CPF) to Pension Scheme.
2.6.1. Having considered item 2.6 of the Agenda, EC agreed that BIS employees who are presently governed by Contributory Provident Fund Scheme may be allowed one more change for opting to come under Pension Scheme with the conditions stated below:
(1) The option may be allowed only to those employees who were on service of BIS as on 1.1.1996.
(2) In the case of those serving employees as on 1.1.1996 but retired subsequently, they may be allowed the option only after refund of the employers contribution with interest and any other benefit associated with CPF plus interest as per Govt. rules upto the R.P.No.62/2015 in -28- W.P.(C)No.26271/2010 date of refund.
(3) In the case of existing employees for opting to switch over to Pension Scheme, they may be allowed to do so subject to the forfeiture of the employer's contribution with interest thereon and other associated benefits.
(4) Further it is subjected to the approval of the Central Govt."
37. The changeover as above was not permitted in view of certain impediments put by the Ministry of Finance, Department of Expenditure/the 2nd respondent therein. It was contended that, the recurring financial implications in autonomous bodies are very substantial and there may be cases where the pension fund set up for the employees of an autonomous body has become unviable, there being no possibility of disbursing pension to the pensioners without seeking Government's support in the form of grants-in-aid and therefore, the 2nd respondent did not grant approval to the said changeover scheme. The Ministry of Consumer Affairs and Public Distribution, Department of Consumer Affairs/the 1st respondent therein vide letter No.2/33/97-BIS dated 31.3.2000 directed the 3rd respondent to re-examine the matter in the light of D.O. letter dated 16.3.2000 of the 2nd respondent. Accordingly, the matter was resubmitted along with the letter of the 3rd respondent dated 10.5.2000, addressed to the 1st respondent. The said letter reproduced in the order of the learned Single Judge dated 22.10.2003 in C.W.P.No.2107/2002 reads thus; R.P.No.62/2015 in -29- W.P.(C)No.26271/2010
"Please refer to your letter No.2/33/97-BIS dated 31st March 2000 on the subject mentioned above.
2. As desired, the BIS proposal on the above referred subject matter has been re-examined in the light of Ministry of Finance, Department of Expenditure D.O. Letter dated 16th March 2000 and is resubmitted with further comments as follows:
(a) As per BIS (Terms and Conditions of Services of the Employees) Regulations, 1988 published in the Gazette of India, the employees of BIS shall be governed by Central Civil Services (Pension) Rules 1972, except only 19 employees who elected to be governed by CPF Rules;
(b) Presently, BIS is having 652 pensioners including those who retired from erstwhile Indian Standards Institution.
(c) The total expenditure on pension payment is met out of the BIS own resources. An amount of Rs.5.35 crores (Provisional) was incurred during the last financial year 1999-2000.
(d) The number The number of cases which were approved by the Executive Committee of BIS is only for 16 employees to change from CPF Scheme to Pension Scheme out of 19 cases as mentioned at (a) above. It may be observed that this number is very less, as compared to the existing number of 652 pensioners.
As the cases of changeover from CPF Scheme to Pension Scheme are very few and the financial liability involved would be around Rs.7.20 lakhs per annum plus Dearness Relief as admissible from time to time and BIS is not likely to depend on Government grants in future, it is requested that the proposal of BIS as already submitted may kindly be approved."
38. In view of the fact that cases for changeover from the CPF Scheme to Pension Scheme were few and no financial liability has to be R.P.No.62/2015 in -30- W.P.(C)No.26271/2010 incurred by the 2nd respondent, as there was a categorical statement of the 3rd respondent that they will not depend on Government grants in future, the learned Single Judge held that there should not be any impediment for the 2nd respondent to approve the Scheme. As a matter of abundant caution, the learned Single Judge directed that an undertaking be filed by the writ petitioners in Court that, in the unlikely event, in view of certain financial constraints the 3rd respondent is not in a position to give pension to the writ petitioners, they will not have any claim towards their pension against the 1st and 2nd respondents. Accordingly, the learned Single Judge disposed of C.W.P.No.2107/2002 by directing the 2nd respondent to give approval to the scheme in principle stating, inter alia, that the 2nd respondent will have no financial liability in view of the undertaking given by the writ petitioners. The 2nd respondent was directed to give approval within four weeks from the date of order and thereafter, the scheme shall be implemented in terms of letter dated 17.7.1998 issued by the 3rd respondent.
39. The judgment of the learned Single Judge was under
challenge in W.A.No.244/2004 filed before the Delhi High Court by Union of India and another/1st and 2nd respondents in that writ petition. As discernible from the order dated 16.9.2004 in W.A.No.244/2004, before the Division Bench it was contended that approval could not have been R.P.No.62/2015 in -31- W.P.(C)No.26271/2010 granted by the learned Single Judge in view of the rejection by the Ministry of Finance, Department of Expenditure/2nd appellant therein on various grounds including that such approval has already been declined in the case of other Central Government Employees. Further, an apprehension was also expressed that even after such an undertaking given by the writ petitioners/respondents 1 to 13 in the writ appeal, the financial liability may still fall on the shoulders of the 1st and 2nd appellants.
40. The facts, as discernible from the first paragraph of the order of the Division Bench dated 16.9.2004 in W.A.No.244/2004 would indicate that, while implementing the recommendation of the Fourth Central Pay Commission in the year 1987, the employees of Bureau of Indian Standards/14th respondent therein were asked to give their option by 30.9.1987, in case they wished to continue in the CPF Scheme. The 14th respondent also issued an OM dated 28.9.1987 (Ext.P5 in W.P.(C)No.26271/2010) and extended the deadline to exercise option of retaining CPF Scheme upto 15.10.1987. On 17.7.1998, the 14th respondent decided that the employees who are governed by the CPF Scheme, who were only 16 in number, may be allowed one more chance to opt for the pension scheme, subject to certain conditions. However, the request to that effect made in the letter R.P.No.62/2015 in -32- W.P.(C)No.26271/2010 dated 2.2.1999 was not agreed to by the 1st appellant in its communication dated 4.11.1999.
41. After hearing the arguments, the Division Bench found it unnecessary to go into the details of the various grounds of challenge in W.A.No.244/2004, in view of small financial liability involved in the case, and since Bureau of Indian Standards/14th respondent in the writ appeal feel confident to bear this financial burden and willing to grant the benefit of switching over to the Pension Scheme and that, the order of the writ court can be modified to ward off any apprehension that any financial burden caused by switching over from CPF Scheme to Pension Scheme shall never fall on the shoulders of the appellants. Accordingly, W.A.No.244/2004 was disposed of by the order dated 16.9.2004, by modifying the order of the learned Single Judge dated 22.10.2003 to the extent that the appellants shall consider the passing of a conditional approval stipulating that they shall not incur any liability in case Bureau of Indian Standards/14th respondent fails to satisfy the pension liability of the writ petitioners/respondents 1 to 13, and pass appropriate orders within two months from the date of order. It was also made clear that the writ petitioners on their part shall remain bound by all other terms of the writ court order including the undertaking to be executed by them.
42. The order dated 16.9.2004 of the Division Bench of the Delhi R.P.No.62/2015 in -33- W.P.(C)No.26271/2010 High Court in W.A.No.244/2004 was under challenge before the Apex Court in Civil Appeal No.2723/2005 filed by Union of India and another. By the judgment dated 28.11.2006 (S.L. Verma's case), the Apex Court dismissed the said appeal with certain observation. The Apex Court held that, by reason of OM dated 1.5.1978 (Annexure A4 DoP&PW OM) a legal fiction was created, and only when an employee consciously opted for to continue with the CPF Scheme, he would not become a member of the Pension Scheme. Before the Apex Court it was not disputed that respondents 1 to 13/writ petitioners did not give their options by 30.9.1987. In that view of the matter, the Apex Court held that the said respondents, in view of the legal fiction created, became members of the Pension Scheme. Once they became members of the Pension Scheme, Regulation 16 of the Bureau of Indian Standards (Terms and Condition of Service of Employees) Regulations, 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 Scheme would not arise. In that view of the matter, the Apex Court observed that the learned Single Judge was correct in allowing the writ petition filed by respondents 1 to 13 with a rider that the Union of India would not be R.P.No.62/2015 in -34- W.P.(C)No.26271/2010 liable to financial liability, but the Division Bench could not have modified the said order, as was sought to be done, by its order dated 16.9.2004.
43. The judgment of the Apex Court in S.L. Verma's case is on an entirely different factual matrix and therefore the said decision will not in any manner support the case of the petitioners. In the said case, while implementing the recommendation of the Fourth Central Pay Commission in the year 1987, the employees of Bureau of Indian Standards were asked to give their option by 30.9.1987, in case they wished to continue in the CPF Scheme. It was thereafter that, Ext.P5 OM dated 28.9.1987 was issued, whereby the deadline to exercise option of retaining the CPF Scheme was extended upto 15.10.1987. On 17.7.1998, Bureau of Indian Standards decided that the employees who are governed by the CPF Scheme, who were only 16 in number, may be allowed one more chance to opt for the pension scheme subject to certain conditions. However, the request to that effect made in the letter dated 2.2.1999 was not agreed to by the concerned Ministry in its communication dated 4.11.1999. Bureau of Indian Standards resubmitted the proposal along with its letter dated 10.5.2000, which was declined finally by the concerned Ministry by its letter dated 14.2.2002, which was under challenge in CWP.No.2107/2002 filed by the employees.
R.P.No.62/2015 in -35- W.P.(C)No.26271/2010
44. On the other hand, in the instant case Annexure A4 DoP&PW OM dated 1.5.1987 was implemented in DoS/ISRO only by Annexure A5 DoS OM dated 21.10.1987, after consultation/concurrence with DoPT and also DoP&PW, which is evident from the said OM dated 21.10.1987 and also Annexure A6 Memorandum dated 30.11.1987. By Annexure A5 OM, the Administrative staff of DoS/ISRO were given an option to continue under the CPF Scheme, if they so desire, which will have to be exercised and conveyed to the concerned authorities in the Centres/Units on or before 31.12.1987, in the prescribed form. The said DoS OM issued in consultation with DoP&PW made it explicitly clear that all other instructions contained in Annexure A4 OM regarding the procedure to be followed in regard to CPF beneficiaries belonging to Administrative categories will apply mutatis mutandis in respect of the employees of DoS/ISRO with the exception that the date '30.9.1987' may be substituted by '31.12.1987', wherever applicable. On the other hand, as evident from Ext.P5 office order dated 28.9.1987, Bureau of Indian Standards extended the deadline to exercise option of retaining CPF Scheme upto 15.10.1987 without following any such procedure. Therefore, Ext.P6 form of option dated 12.10.1987 stated to have been submitted by one K. Raghavendran, who was one among the respondents before the Apex Court in S.L. Verma's case, will not in any R.P.No.62/2015 in -36- W.P.(C)No.26271/2010 manner support the case of the petitioners.
45. As we have already noticed, the fact that, prior to the issuance of Annexure A6 Memorandum, Annexure A4 OM dated 1.5.1987 was neither communicated to the Administrative staff of VSSC nor they were required/allowed to exercise option on or before the cutoff date of 30.9.1987 specified therein, in case they decide to continue under the CPF Scheme, is virtually admitted in Para.4(ix) of the O.A. Para.4 of Ext.P9 DoS letter dated 22.1.2009 addressed to the Ministry of Finance would also show that, in DoS the last date for option was kept as 31.12.1987 vide Annexure A5 OM dated 21.10.1987, which was beyond the cut off date given by DoP&PW, on account of some clarification that was sought for inclusion of Scientific and Technical Staff in Annexure A4 OM dated 1.5.1987. When, for the first time, the employees of DoS/ISRO were required/allowed to exercise option to continue under the CPF Scheme in terms of Annexure A4 OM, only by Annexure A6 Memorandum dated 30.11.1987, whereby they were required to submit such option on or before 31.12.1987, the option exercised by the petitioners vide Annexures A7 to A10 form of option dated 8.12.1987, 21.12.1897, 8.12.1987 and 4.12.1987 to come over to the CPF Scheme was perfectly legal. Therefore, the contentions to the contra raised in the writ petition, relying on the decision of the Apex R.P.No.62/2015 in -37- W.P.(C)No.26271/2010 Court in S.L. Verma's case, were rightly repelled in the judgment sought to be reviewed.
46. Section 21 of the Administrative Tribunals Act, 1985 deals with limitation. Clause (a) to sub-section (1) of Section 21 of the Act provides that, the Tribunal shall not admit an application, in a case where a final order such as is mentioned in clause (a) of sub-section (2) of Section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made. However, sub-section (3) of Section 21 provides that, notwithstanding anything contained in sub-section (1) or sub- section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period.
47. It is well settled that, the law of limitation is founded on public policy to ensure that the parties to the litigation do not resort to dilatory tactics and seek legal remedy without delay. In an application filed under sub-section (3) of Section 21 of the Act, the Tribunal can condone the delay if sufficient cause is shown. Adopting a liberal approach in condoning the delay is one of the guiding principles, but R.P.No.62/2015 in -38- W.P.(C)No.26271/2010 such liberal approach cannot be equated with a licence to approach the Tribunal-at-will disregarding the time limit fixed in clause (a) of sub- section (2) of Section 20 of the Act. The acts of negligence or inaction on the part of a litigant do not constitute sufficient cause for condonation of delay.
48. The petitioners originally filed O.A.No.852/2009 before the Tribunal in March, 2009 without challenging Annexure A5 DoS OM dated 21.10.1987 and Annexure A6 Memorandum dated 30.11.1987. Later, the said O.A. was amended by incorporating a declaration that, Annexure A5 OM and Annexure A6 Memorandum issued by DoS are invalid. In the judgment sought to be reviewed, this Court noticed that Annexure A5 OM, which was impugned before the Tribunal was issued way back on 21.10.1987. Based on the said OM, options were exercised by the petitioners in December, 1987. Long thereafter, they represented for a chance to opt for the GPF/Pension Scheme only in June and July, 2008 and on rejection of those representations in August, 2009, they filed the O.A. in December, 2009. Therefore, the challenge made by the petitioners before the Tribunal and their requests for a chance to opt for the GPF/Pension Scheme were highly belated. However, the said defect was sought to be got over by the petitioners by contending that they filed Annexures A12 to A15 representation soon after the Apex Court R.P.No.62/2015 in -39- W.P.(C)No.26271/2010 rendered its judgment in S.L. Verma's case. The petitioners themselves took advantage of Annexure A5 OM dated 21.10.1987 by exercising option. They consciously opted for the CPF Scheme on their own, well within the time limit stipulated in the said OM.
49. Though, by Ext.P9 DoS letter dated 22.1.2009, concurrence of the Ministry of Finance was sought for, in order to bring under the GPF/Pension Scheme the Administrative staff of DoS/ISRO who had exercised their option after 30.9.1987 to continue under the CPF Scheme, the said request was turned down by the Ministry of Finance by Annexure A10 communication dated 1.5.2009. Since the applicants have exercised their option in terms of Annexure A5 OM dated 21.10.1987 on their own and were allowed to continue under the CPF Scheme based on such option, the cause of action had arisen way back in the year 1987. Therefore, Annexures A12 to A15 representations submitted by the petitioners in the year 2008 would not revive the cause of action of the year 1987. Therefore, it was rightly held in the judgment sought to be reviewed that the petitioners are guilty of delay and laches.
50. Though the validity of Annexure A5 OM dated 21.10.1987 was not an issue, still that question was gone into by a Division Bench of this Court in Annexure R1 judgment in W.P.(C)No.22574/2009. The said judgment was sought to be reviewed in R.P.No.781/2010, relying on a R.P.No.62/2015 in -40- W.P.(C)No.26271/2010 reply dated 4.2.2009 obtained under the Right to information Act, 2005 (Annexure A2 in R.P.No.781/2010), by contending that DoP&PW never authorised DoS to obtain option from its Administrative staff to continue under the CPF Scheme beyond the cutoff date of 30.9.1987 specified in Annexure A4 OM dated 1.5.1987. It is pertinent to note that, the petitioners herein have also raised a similar contention relying mainly on the very same reply dated 4.2.2009, which is placed on record as Annexure A23 along with their rejoinder in O.A.No.852/2009. By the order dated 7.4.2011, the Division Bench dismissed R.P.No.781/2010 holding that, in so far as DoS is concerned, the cutoff date was postponed to 31.12.1987 as regards the operation of Annexure A4 DoP&PW OM dated 1.5.1987 is concerned. It was taking note of the aforesaid facts that, this Court by the judgment sought to be reviewed dismissed W.P.(C)No.26271/2010.
51. While dismissing the writ petition, this Court has also noticed that almost in similar circumstances the Tribunal granted relief in Annexure A20 order by allowing O.A.No.685/2007, which order was set aside by this Court in Annexure R1 judgment in W.P.(C)No.22574/2009, and it was following the said judgment that the Tribunal passed the impugned order. Subsequently, the Division Bench of this Court by the order dated 7.4.2011 dismissed the review petition filed against R.P.No.62/2015 in -41- W.P.(C)No.26271/2010 Annexure R1 judgment, i.e., R.P.No.781/2010 by holding that in so far as DoS is concerned, the cutoff date was postponed to 31.12.1987 as regards the operation of Annexure A4 DoP&PW OM dated 1.5.1987 is concerned.
52. Viewed in the light of the law laid down by the Apex Court in the decisions referred to supra, none of the grounds raised in the Review Petition fall within the ambit and scope of Order XLVII Rule 1 of the Code. Since a review petition has only a limited purpose, which cannot be allowed to be 'an appeal in disguise', the petitioners cannot make out a case warranting interference, based on any additional documents produced along with this review petition.
In the result, in the absence of any mistake or error apparent on the face of the record pointed out in the judgment of this Court dated 11.12.2014 in W.P.(C)No.26271/2010, this review petition fails and the same is accordingly dismissed. No order as to costs.
Sd/-
ANTONY DOMINIC, JUDGE Sd/-
ANIL K. NARENDRAN, JUDGE dsn True copy P.S. to Judge