Delhi High Court - Orders
Manoj Pant And Ors vs Jawaharlal Nehru University on 8 February, 2023
Author: Yashwant Varma
Bench: Yashwant Varma
$~2 (A)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2989/2010
MANOJ PANT AND ORS ..... Petitioners
Through: Mr. Abinash K. Mishra, Adv.
versus
JAWAHARLAL NEHRU UNIVERSITY ..... Respondent
Through: Mr. Sandeep Mahapatra and
Ms. Mrinmayee Sahu, Advs. for
JNU.
Mr. Ruchir Mishra, Mr. Sanjiv
Kumar Saxena, Mr. Mukesh
Kumar Tiwari, Ms. Poonam
Shukla and Ms. Reba Jena
Mishra, Advs. for UOI.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
ORDER
% 08.02.2023 REVIEW PET. 101/2022 (O.D.18-02-2022)
1. Seven of the original writ petitioners have preferred this review petition in respect of the judgment rendered by the Court on 18 February 2022. The writ petition had called in question the action of the respondent University insofar as progression of its employees to the pensionary scheme was concerned. The dispute emanated from an Office Memorandum [O.M.] dated 01 May 1987 which had essentially provided for options being exercised by employees who sought to continue under the CPS Scheme. The O.M. had further stipulated that if no option is received by the competent authority by the date prescribed, the employees would be deemed to have come over to the pension scheme.
2. Upon a detailed hearing of the rival submissions, the Court held as under: -
Signature Not Verified Digitally Signed By:NEHA W.P.(C) 2989/2010 Page 1 of 5 Signing Date:13.02.2023 17:19:05"43.Viewed in that light, the Court firstly considers the right of the 42 petitioners who ostensibly and with so called certitude decided to remain in the CPF regime within the cut-off date prescribed by JNU. Admittedly, JNU permitted numerous employees to revise the options submitted in terms of the original circular pursuant to the 1993 and 1995 extensions. Shashi Kiran has held in favour of this category of employees holding that they cannot be pinned down to the original choice as exercised. The view of the learned Single Judge in Shashi Kiran that these employees could not be permitted to resile stands overruled by the Division Bench of the Court. That judgment clearly binds this Court. These set of employees cannot, consequently, be denied relief on this score.
44. That takes the Court to deal with the fate of those employees who joined the University after 20 May 1988 and during the currency of the 1993 and 1995 circulars. It has already been found that the two circulars referred to above, digressed from the initial understanding of JNU of the import of the 1987 O.M. The original circular had rightly held that only those employees who wanted to continue in the CPF regime were liable to submit options. It also correctly provided that a failure to submit a choice would be understood as the employee migrating to the GPF regime. However, by the time the 1993 and 1995 circulars came to be issued, JNU committed the patent mistake of requiring employees to submit a positive option to be part of GPF. The more fundamental mistake committed by it was when it provided that those who did not submit an option, would be deemed to have continued under the CPF scheme. The change of course adopted in the 1993 and 1995 circulars is what fell for adverse comment of the Nayak Committee leading it to observe that the language of those circulars prevented a "default conversion" to the GPF scheme. This is evident not just from the terms of the two circulars referred to above, but also the nature of the options which were liable to be submitted. The unambiguous command of those circulars was that a failure to migrate to the GPF scheme would be deemed to amount to an exercise of choice to continue under the CPF scheme. This clearly flew in the face of the terms of the 1987 O.M.
45. The options submitted by employees during the period when the 1993 and 1995 circulars held the field are liable to be evaluated in the backdrop of the default option being ordained to be a continued application of the CPF scheme. Viewed in that background and the uncertainty which came to prevail, the petitioners cannot be faulted for having chosen, either mistakenly or unknowingly, to be part of the CPF scheme. In order to hold an employee down to a choice validly exercised and to recognise it as being one consciously made, it is incumbent upon the Court to consider whether the avenues available to be chosen were spelt out with sufficient or at least reasonable clarity by the employer. The respondent has failed to convince this Court that its actions meet this fundamental benchmark. The defense proffered by the respondent crumbles on account of the seminal mistake committed Signature Not Verified of providing the default option to be CPF.Digitally Signed By:NEHA W.P.(C) 2989/2010 Page 2 of 5
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47. Viewed in that backdrop, this Court is of the considered view that it is not open to JNU to either repudiate or disown the findings of the Nayak Committee report to the extent that it speaks of administrative lapses having occurred and the 1993 and 1995 circulars proceeding on the incorrect premise of a failure to opt for the GPF scheme resulting in the employee being governed by CPF. While Ms. Arora has vehemently contended that all the petitioners held important and responsible positions in the university and it is not open to them to assert that they had no knowledge of those circulars, the Court finds no justification to accept this submission in light of what was found by the Nayak Committee on facts and which ultimately finds resonance and tacit acceptance in the resolution of the Executive Council of 29 November 2006.
57. The Court further records that learned counsels have not urged that the change over is to take effect from an anterior date. In fact, no such relief is also claimed. The Court notes that similar was the position which was noticed in Virmani as evident from paragraph 17.4 of the report. Consequently the relief as framed hereinafter would only have prospective application."
3. The Court ultimately allowed the writ petition in the following terms: -
"58. The writ petition shall consequently stand allowed in the following terms. JNU is hereby called upon to process the claims of the petitioners for migration to the GPF scheme in light of the findings recorded hereinabove. The aforesaid consideration shall be subject to the petitioners refunding the employer's contribution together with interest @ 8% p.a. as per the directions framed in paragraph 20 of Virmani.
59. Insofar as petitioner nos. 53, 54, 55, 56, 57, 58 and 61 are concerned, the Court leaves it open to JNU to consider their entitlement to relief in light of the principles enunciated in this decision subject to the rider placed in paragraphs 55 and 56 of this judgment."
4. Upon hearing learned counsel appearing for the review petitioners as well as Mr. Mohapatra learned counsel appearing for the University, the Court had proceeded to dismiss the review petition on 02 February 2022. Thereafter, learned counsel for the review petitioner mentioned the matter and made a prayer for being granted further time to address submissions. The Court accepting that request and bearing in mind the decision of the Supreme Court in State Bank of India Vs. S.N. Goyal [(2008)8 SCC 92] desisted from signing its order Signature Not Verified and had re-notified the matter for 07 February 2023 and Digitally Signed By:NEHA W.P.(C) 2989/2010 Page 3 of 5 Signing Date:13.02.2023 17:19:05 thereafter posted for today. Learned counsel for the review petitioner was accorded the opportunity to address submissions.
5. Having heard learned counsel for the review petitioner, the Court firstly finds that a perusal of the review petition and the various grounds taken therein unmistakably indicate that the review petitioners essentially seek a rehearing of the entire matter on merits. The various grounds on which the petition is based would itself be indicative of the aforesaid fact.
6. The Court further notes that while much stress was laid by learned counsel on the use of the word "prospective" in paragraph 57 of the judgment, he was unable to articulate how the use of the said phrase had adversely impacted the interest of the review petitioners.
7. The Court also notes that the petition itself had been allowed with a direction to the University to process the claim of the petitioners who sought to migrate to the GPF Scheme subject to them refunding the employees contribution together with the interest @ 8%. The word "prospective" is thus liable to be understood in the aforesaid context and the intention of the Court of not unsettling affairs which may have come to hold the field.
8. The Court further notes that the review petitioners were those in respect of whom it had in paragraphs 55 and 56 of its judgment observed as under: -
"55. The caveat which however must necessarily be entered is in respect of the following petitioners who retired years before the present petition came to be preferred. Their details are placed below: -
Petitioner Year of
Nos. retirement
53 2006
54 2005
55 2006
56 2007
57 2004
58 2006
Signature Not Verified 61 1997
Digitally Signed
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56. Insofar as petitioner nos. 53, 54, 55, 56, 57, 58 and 61 are concerned, there is no material on record which may indicate whether they accepted the CPF benefits without demur and protest and after a long hiatus chose to join the rest of the petitioners here. This issue would merit consideration by JNU bearing in mind the note of caution which was recorded by the learned Judge in Virmani and more particularly in paragraph 17.5. of the report. While Mr. Rai learned senior counsel sought to urge that the doctrine of merger would apply and this caveat entered would no longer hold good in light of the judgment of the Division Bench in Shashi Kiran, the Court finds itself unable to sustain this submission for the following reason. It must be remembered that the judgment in Virmani came to be affirmed by the Division Bench in Shashi Kiran. The appeals of the Delhi University preferred came to be dismissed. However, while parting the Division Bench did not interfere or dilute this cautionary note as entered in Virmani. The submission of Mr. Rai in this respect is liable to be and is thus rejected."
9. It is thus evident that their entitlement to pension and the reliefs which were sought in the writ petition were duly considered and ruled upon after due contest.
10. The Court fails to find any manifest or patent error which may warrant its review power being invoked.
11. The review petition is consequently dismissed.
YASHWANT VARMA, J.
FEBRUARY 08, 2023 SU Signature Not Verified Digitally Signed By:NEHA W.P.(C) 2989/2010 Page 5 of 5 Signing Date:13.02.2023 17:19:05