Central Administrative Tribunal - Delhi
Hoshiar Singh vs Kendriya Vidyalaya Sanghthan on 19 September, 2016
Central Administrative Tribunal
Principal Bench
New Delhi
OA No.3112/2013
Order Reserved on:09.09.2016
Pronounced on:19.09.2016.
Hon'ble Mr. Justice M.S. Sullar, Member (J)
Hon'ble Mr. K.N. Shrivastava, Member (A)
Hoshiar Singh,
Principal, K.V. No.1 (Army),
Jodhpur (Raj.)
R/o 64, Abheygarh, Airforce Area,
Jodhpur (Raj.)
- Applicant
(By Advocate ShriYogesh Sharma)
Versus
1. Union of India
Through, Secretary
Ministry of Human Resources Development,
ShastriBhawan, New Delhi.
2. KendriyaVidyalayaSangathan,
Through the Commissioner,
18, Institutional Area,
ShahzedJeet Singh Marg,
New Delhi.
3. The Joint Commissioner (Admn.),
KendriyaVidyalayaSangathan,
18, Institutional Area,
ShahzedJeet Singh Marg,
New Delhi-110016.
- Respondents
(By Advocate Shri S. Rajappa)
2
(OA No.3112/2013)
ORDER
Mr. K.N. Shrivastava, Member (A):
This Original Application (OA) has been filed under Section 19 of the Administrative Tribunals Act, 1985. The applicant has prayed for the following main relief:
"(2) That the Hon'ble Tribunal may further graciously be pleased to pass an order declaring to the effect that the whole action of the respondents applying the CPF Scheme on the applicant on his fresh appointment as Principal in 2002 is void-ab-initio as in 2002 CPF Scheme was not in operation for fresh appointment and consequently pass an order directing the respondents to treat the applicant as governed by GPF cum pension scheme from the date of fresh appointment to the post of Principal with all consequential benefits."
2. The brief facts of this case are as under.
2.1 The applicant joined Kendriya Vidyalaya Sangathan (KVS) on 21.09.1979 as a Primary Teacher (PRT) through direct recruitment. Later on, again through direct recruitment he was appointed as Trained Graduate Teacher (TGT) (Maths) on 20.07.1981 in KVS. Yet again through direct recruitment, he was appointed as Post Graduate Teacher (PGT) (Maths) on 15.09.2002 in KVS. In the year 2001, KVS invited applications for the post of Principal from within as well as from outside. Pursuant to that, the applicant applied for the post and he was selected. Consequently, he was appointed as a Principal in KVS vide Annexure A-6 appointment letter dated 28.08.2002. The said appointment letter, however, states that his appointment to the post of Principal is on deputation basis and the terms of the 3 (OA No.3112/2013) appointment, as mentioned in the KVS OM of even number dated 14.08.2002 (Annexure A-7), shall remain unaltered. Together with the applicant, in all 322 PGTs/Vice Principals from within and outside KVS, were appointed as Principals. 2.2 Prior to 01.01.1986, KVS was having Contributory Provident Fund (CPF) Scheme and it did not have any pension scheme for its employees. CPF scheme is believed to be in vogue in KVS since 1966. Pursuant to the 4th CPC recommendations, General Provident Fund Scheme coupled with Pension Scheme (in short, Pension Scheme) was implemented in KVS w.e.f. 01.01.1986. As per Annexure A-11 Appendix-13 titled "Change- over of employees from Contributory Provident Fund Scheme to Pension Scheme", all CPF beneficiaries, who were in service on 1st January, 1986, and who are still in service on the date of issue of these orders i.e. 1st May, 1987, will be deemed to have come over to the Pension Scheme.
2.3 The Chairman, KVS in November, 2004 took a view that appointments of 322 PGTs/Vice-Principals as Principals on deputation basis were illegal because the principles laid down in Articles 14 and 16 of the Constitution of India in filling up of the posts of Principals have not been followed; consequently the posts of Principals meant for SC/ST/OBC and unreserved categories, both by way of direct recruitment and also through 4 (OA No.3112/2013) promotion, have not been followed. Accordingly, the Principals, so appointed, were reverted to their substantive posts i.e. PGTs/Vice Principals and repatriated to their parent organizations which also included KVS. The said decision of KVS was challenged by the affected persons in various courts/benches of this Tribunal. Most of the courts/benches of this Tribunal rendered judgments in favour of the aggrieved persons to the effect that they ought to be treated as regularly recruited Principals from the date(s) they were initially appointed as Principals on deputation basis. In order to give quietous to the entire controversy, KVS came out with Annexure A-8 circular dated 19.09.2007 in which it was stated that all the affected 322 Principals, who were reverted to their substantive posts pursuant to the decision of the Chairman, KVS of November, 2004, shall be considered as regularly appointed Principals with effect from the date(s) they were appointed as such. Pursuant to the Annexure A-8 circular of KVS, vide Annexure A-9 office order dated 26.09.2007, the applicant was regularized as Principal with effect from the date he was appointed on deputation basis and joined as such. The office order reads as under:
"By this office order, the approval of the competent authority as reflected in the circular dated 19.09.2007 issued by KVS is conveyed for regularizing ShriHoshiyar Singh as Principal with effect from the date he was appointed on deputation basis and joined as such. He/She is posted as Principal in KV. Pokharan. He will be eligible for 5 (OA No.3112/2013) all consequential benefits as mentioned in the aforesaid circular on the subject."
2.4 The prayer of the applicant in this OA is that since he was appointed as Principal afresh on 14.08.2002 when the CPF scheme was not in operation and hence he should be given the benefits of the Pension Scheme.
3. Pursuant to the notices issued, the respondents entered appearance and filed their reply. The applicant thereafter filed his rejoinder. With the completion of the pleadings the case was taken up for hearing the arguments of the parties on 09.09.2016. Shri Yogesh Sharma, learned counsel for the applicant and Shri S. Rajappa, learned counsel for the respondents argued the case.
4. The learned counsel for the applicant during the course of his arguments made the following points:
a) The applicant was appointed as a Principal in KVS on 14.08.2002 through direct selection process and hence he is entitled to the Pension Scheme then in vogue in KVS.
b) As per clause-3 of the Pension Scheme (Annexure A-11), all CPF beneficiaries, who were in service on 1st January, 1986, and who are still in service on the date of issue of these orders viz., 1st May, 1987, will be deemed to have come over to the Pension Scheme. Thus, the option was required to be given for 6 (OA No.3112/2013) continuing in the CPF Scheme failing which the employee would be construed to have come under the Pension Scheme.
c) The applicant never exercised any option for continuing in the CPF Scheme. In OA No.1437/2009, in the case of Amit Mukherji & Others v. Union of India & Others, this Hon'ble Tribunal vide order dated 12.04.2010 has held as under:
"6. It is thus clear that there was clear deeming provision in the policy guidelines of 1.05.1987 for switchover from CPF Scheme to Pension Scheme, the Fourth Central Pay Commission had recommended such switch-over and also introduction of DCRG and while the latter was adopted by the DUAC, the former was denied; several autonomous bodies, including those (i) which came into existence after the DUAC and (ii) some of which are under the MOUD, the first Respondent, itself were given the bene3fit of the pension -GPF Scheme; the Department of Expenditure itself has accepted that it would apply to the autonomous bodies; and the expenditure actually involved is a measly sum of Rs.1.5823 crore. It would be most unfair and unjust to deny the benefit of the Pension-cum-GPF scheme to the Applicants."
d) The applicant was appointed as Principal on direct recruitment basis on 14.08.2002. At that time, there was no CPF Scheme for the direct recruits and only GPF-cum-Pension Scheme was applicable to them. The applicant retired on 31.08.2014 after completion of more than 12 years of regular service as a Principal. The qualifying service for eligibility for Pension Scheme is only 10 years as per Rule 49 of the CCS (Pension) Rules, 1972 and as such the applicant is entitled for pension.
7
(OA No.3112/2013)
e) Besides the candidates from KVS including the applicant, several others from open market from organization like Navodaya Vidyalaya Sangathan (NVS) were also selected to the posts of Principal in KVS in the year 2002. They all have been extended the benefit of GPF-cum-Pension Scheme. Denial of the same to the applicant would thus be discriminatory and violative of Articles 14 and 16 of the Constitution of India.
f) The Hon'ble Delhi High Court in the case of A.P. Verma v. National Council of Educational Research &Training in WPC No.8489/2010 vide judgment dated 25.02.2013 has held as under:
"6. The Tribunal failed to appreciate that it is settled law that once a person is appointed to a substantive post through direct recruitment in an open selection after competing with internal and external candidates the appointment on the said post is a fresh appointment. Therefore, in our opinion, the petitioners have been subjected to hostile discrimination, although they were appointed by the same recruitment procedure as others, only because they were working with one of the establishments of the respondent earlier. In our view the same constitutes unequal treatment amongst equals and is violative of Article 14 of the Constitution of India."
The said judgment of the Hon'ble High Court has been upheld by the Hon'ble Supreme Court vide order dated 05.09.2014 in SLP (C) No.39272-39273/2013.
g) In the case of Joshnson P. John v. Assistant Commissioner, KVS &Ors.in OA-457/2011 the Ernakulam Bench of this Hon'ble Tribunal had observed that the question of 8 (OA No.3112/2013) asking for option from an employee whose induction in the service is posterior to 01.09.1988 does not arise at all. The said order has been upheld by the Hon'ble High Court of Kerala vide judgment dated 13.08.2013 dismissing the Writ Petition filed by the KVS against the order of the Ernakulam Bench. Similar view has been taken by this Bench of the Hon'ble Tribunal in OA-1027/2014 - Shri Santosh Kumar Verma v. KVS &Anr. and OA No.1039/2014 - Ms.Usha Rani Singh v. K.V.S. &Anr. vide common order dated 25.03.2014. All these judgments have since been implemented by KVS.
4.1 Concluding his arguments, the learned counsel for the applicant prayed for allowing the relief claimed by the applicant in the OA considering the appointment of the applicant as Principal in KVS on 14.08.2002 as a fresh appointment.
5. Per contra, the learned counsel for the respondents made the following points during the course of his arguments:
i) The Hon'ble Supreme Court in the case of K.V.S. & Ors.
v. Jaspal Kaur & Ors. in Appeal (Civil) No.2876/2007 vide judgment dated 06.06.2007 has held as under:
"7. The last pay certificate issued to the respondent no.1 when she handed over charge on 23.5.1992 clearly indicate that CPF subscriptions of Rs. 130/- was being deducted and that she had 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 repondent no. 1. Pursuant to this Court's order the original 9 (OA No.3112/2013) 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 n19.4.2003 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 documents relating to exercise to 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 talking a difference view."
ii) The Ernakulam Bench of this Tribunal in OA No.139/2012 in the case of T. Krishnamurthy v. Assistant Commissioner, KVS &Ors., relying on the judgment of the Apex Court in JaspalKaur (supra), vide order dated 12.10.2012 has refrained from entertaining an identical plea made in the said OA.
iii) The applicant has raised his claim for the Pension Scheme much belatedly. The Hon'ble Bombay High Court in the case of Liladhar Vasant Chogale and Another v. Union of India & Others, in Writ PetitionNo.1982/2005 with Writ Petition No.1925/2007 vide judgment dated 19.06.2008 has held that inordinate delay caused in such matters would be fatal to the interest of the petitioners. Hence the applicant cannot raise his claim for Pension Scheme at this belated stage.
iv) The Hon'ble Apex Court, disposing of several SLPs filed by Krishena Kumar & Ors. v. Union of India & Ors., [(1990) 4 SCC 207], has held that option once given becomes final. The Hon'ble Apex Court has observed as under:
10
(OA No.3112/2013) "Those who did not opt for the pension scheme had ample opportunity to choose between the two viz. The PF scheme or the pension scheme. Each option was given for stated reason related to the options. On each occasion time was given not only to the persons in service on the date of the Railway Board's letter but also to persons who were in service till the stated anterior date but had retired in the meantime. The period of validity of option was extended in all the options except a few. Therefore, the cut-off dates were not arbitrarily chosen but had nexus with the purpose for which the option was given."
v) The Hon'ble Apex Court in the case of Life Insurance Corporation of India v. AshaRamchandra Ambedkar and another, [(1994) 2 SCC 718] has observed that the High Courts and the Administrative Tribunals cannot confer benediction impelled by sympathetic consideration. The courts should endeavour to find out whether a particularcase in which sympathetic considerations are to be weighed falls within the scope of law.
vi) In the case of All India Reserved Bank Retired Officers Association & Others v. Union of India &another, [1992 Supp. (1) SCC 664] the Hon'ble Apex Court vide judgment dated 10.12.1991, has held as under:
"13. For the above reasons we do not find any substance in the allegation that the cut-off date had been arbitrarily fixed by the Bank Authorities Or the Central Government while giving its approval or that it is devoid of rational consideration and is wholly whimsical. In fixing the cut-off date the respondents had not acted malafide with a view to deprive those who had retired on or before 31st December, 1985 of the benefit of the pension scheme but for reasons stated above it was not practicable to extend the benefit to such retirees. The rationale for fixing the cut-off date as 1st January, 1986 was the same as in the case of Central government employees based on the recommendation of the Fourth Central Pay Commission.11
(OA No.3112/2013)
14. We, therefore, do not see any merit in this petition and dismiss the same with no order as to costs."
5.1 The cause of action had arisen between 2002-2007 but the applicant has filed the instant OA in September, 2013 and as such the OA suffers from limitation and deserves to be dismissed on this ground itself.
5.2 The applicant had joined the KVS as PRT on 21.09.1979 and had opted for CPF. The last opportunity available to KVS employees, including the applicant to switchover from CPF to GPF-cum-Pension Scheme was in 1986 but he has retained the CPF Scheme all these years. He submitted his representation as late as on 18.01.2012 and 18.04.2012 for switching over to the Pension Scheme, which could not have been considered. 5.3 It is an established policy that no further option to change from CPF to Pension Scheme could be made available to the employees in view of the mounting pension liability. 5.4 Concluding his arguments, the learned counsel prayed for dismissal of the OA for the reasons argued by him.
6. We have considered the arguments put-forth by the learned counsel for the parties and have also gone through the pleadings and the documents annexed thereto. Admittedly, the applicant was appointed as a Principal in KVS on 14.08.2002 by way of an open advertisement. Although his initial appointment 12 (OA No.3112/2013) letter as Principal dated 14.08.2002 (Annexure A-7) stated that his appointment is on deputation basis but later in terms of the decision taken by the KVS in November, 2004, all such appointees of the year 2002 were reverted but the reversion order was withdrawn vide KVS circular dated 19.09.2007 (Annexure A-8) and consequently vide KVS office order dated 26.09.2007 (Annexure A-9), the applicant's service as Principal was regularized with effect from the date when he was appointed as Principal on deputation basis, i.e., 14.08.2002. Taking all these developments into consideration, we are of the view that for all practical purposes, the applicant's appointment as Principal on 14.08.2002 shall have to be construed as a fresh appointment on direct recruitment basis.
7. For all the direct recruits in KVS at various levels in the year 2002 the GPF-cum-Pension Scheme was automatically applicable. Therefore, we hold that the GPF-cum-Pension Scheme is applicable to the applicant from 14.8.2002 and till the date of his retirement on 31.08.2014. The applicant has already put in more than 12 years regular service as Principal and hence he is entitled for pension as per Rule 49 of CCS (Pension) Rules, 1972 having completed more than 10 years of qualifying service.
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(OA No.3112/2013)
8. The ratio laid down by the Hon'ble Apex Court in the case of Jaspal Kaur (supra) on which the learned counsel for the respondents laid tremendous amount of emphasis, simply does not apply to the case of the applicant for two reasons. Firstly, the Hon'ble Apex Court in that case had perused the original service book of Jaspal Kaur and had found that even on 10.06.2005 in the Last Pay Certificate, it was stated that she had opted for the CPF Scheme. Based on the said observation, the Hon'ble Apex Court held that merely because the original documents relating to exercise to option was not produced that should not be a ground to ignore the ample materials produced to show exercise of the option. Secondly, as held by us, the applicant was appointed as Principal in the year 2002 on direct recruitment basis and at that time the GPF-cum-Pension Scheme was automatically applicable to all direct recruits to various posts in KVS. The other judgments quoted by the learned counsel for the respondents do not have any bearing to this case.
9. On the issue of limitation, raised by the learned counsel for the respondents, suffice to say that the applicant has represented to the respondents regarding this issue way back on 18.01.2012 and 18.04.2012 much before his superannuation on 31.08.2014 and more so the issue involved is recurring in nature. We, therefore, hold that the limitation will not come in 14 (OA No.3112/2013) the way of the applicant. This Tribunal has also granted identical prayer to the applicants in OA No.1437/2009 vide order dated 12.04.2010 in the case of Amit Mukherjee & Ors. (supra) and the said order had already been implemented by the respondents.
10. In view of the discussions in the foregoing paras and for the reasons given therein, the OA is allowed. The respondents are directed to extend the benefits of the Pension Scheme to the applicant considering his appointment as Principal on direct recruitment basis w.e.f. 14.08.2002. This shall be done within a period of three months from the date of receipt of a certified copy of this order. It is also made clear that the applicant shall not be entitled to any interest on the arrears of the pension payable to him.
11. No order as to costs.
(K.N. Shrivastava) (Justice M.S. Sullar) Member (A) Member (J) 'San.'