Indian School Of Mines Univers vs Union Of India & Ors on 28 March, 2014

[Cites 9, Cited by 0]

Jharkhand High Court

Indian School Of Mines Univers vs Union Of India & Ors on 28 March, 2014

Equivalent citations: 2014 (3) AJR 726

2. The petitioner herein is an association of faculty staff of Indian School of Mines, Dhanbad( hereinafter referred to as I.S.M., Dhanbad) who has espoused the cause of some of its members who are aggrieved by the decision of the Ministry of Human Resource Development Department(H.R.D.), Government of India contained in letter dated 16.11.2005(Annexure-5) issued under the signature of the Director, where under the decision of I.S.M, Dhanbad permitting its faculty members to switch over from the Contributory Provident Fund(C.P.F.) scheme to the G.P.F cum pension scheme has been disapproved. The said decision is based upon the opinion of the Ministry of Finance conveyed through the Director, Department of Expenditure which states that the Office Memo of 1.5.1987 is applicable only to the Central Government employees and not to the employees of autonomous institutions. A copy of the said opinion is also annexed to Annexure-5 to the writ petition.

3. The controversy in the present case revolves around implementation of the Office Memorandum of 1.5.1987 issued by the Government of India, Department of Pension and Pensioner Welfare to the employees / Teaching Faculty of the I.S.M., Dhanbad. The relevant provisions of the scheme which are also part of the 2 writ petition is annexed as Annexure-1 and 8 to the supplementary affidavit and have been relied upon by the rival parties, are being quoted herein below for better appreciation:-

"The Central Government employees who are governed by the Contributory Provident Fund Scheme(CPF Scheme) have been given repeated options in the past to come over to the Pension Scheme. The last such option was given in the Department of Personnel and Training, O.M. No. F.3(1)- Pension Unit/85, dated the 6th June, 1985. However, some Central Government employees still continue under the CPF Scheme. The Fourth Central Pay Commission has recommended that all CPF beneficiaries in service on January 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.

2. After careful consideration, it has been decided that the said recommendation shall be accepted and implemented in the manner hereinafter indicated.

3.1 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.

3.2 The employees of the category mentioned above will, however, have an option to continue under the CPF Scheme, if they so desire. The option will have to be exercised and conveyed to the concerned Head of Office by 30.9.1987, in the form enclosed if the employees wish to continue under the CPF Scheme. If no option is received by the Head of Office by the above date the employees will be deemed to have come over to the Pension Scheme.

3.3. The CPF beneficiaries, who were in service on 1st January, 1986, but have since retired and in whose case retirement benefits have also been paid under the CPF Scheme, will have an option to have their retirement benefits calculated under the Pension Scheme provided they refund to the Government, the Government contribution to the Contributory Provident Fund and the interest thereon, drawn by them at the time of settlement of the CPF Account. Such option shall be exercised latest by 30.9.1987".

The reading of the relevant paras of the scheme indicates that upon implementation of the 4th Central Pay Commission all the C.P.F beneficiaries, in service on 1.5.1987 should be deemed to come over to the Pension scheme on that date unless they specifically opted out to continue in the C.P.F. scheme. Learned counsel for the petitioner as well as respondent- I.S.M,Dhanbad both have harped 3 upon para 3.2. of the scheme, which according to them categorically indicate that the employees under the C.P.F scheme were required to exercise and convey their option to the concerned head of office by 30.9.1987 in the form enclosed, if the employee wished to continue under the C.P.F scheme. If no option is received by that date the employees will be deemed to come over to the Pension scheme.

4. The controversy which has now arisen in the present writ application traces its genesis to the decision of the I.S.M., Dhanbad after adoption of the aforesaid scheme to invite option from its employees by notice dated 19.12.1987, as per which the C.P.F. optees were to exercise their option latest by 31.1.1988 to either remain in C.P.F or change over to G.P.F cum Pension scheme. The I.S.M., Dhanbad issued further notices on 3.1.1994 and 22.6.1994 giving C.P.F optees another chance to exercise their choice to remain in C.P.F scheme or to change over to G.P.F cum Pension Scheme. As per the respondent- I.S.M., Dhanbad the total number of employees who were in G.P.F cum pension scheme in December, 1987 were 581 out of 725 employees. The number of C.P.F members in the corresponding date was 144. However, following the notification of December, 1987, 118 C.P.F optees opted to switch over to G.P.F cum pension scheme. It is those employees who opted to continue under the C.P.F scheme who are aggrieved by the decision of the Government of Indian, Ministry of H.R.D(Annexure-5), which has refused to allow them to switch over to the G.P.F cum Pension scheme, subsequently after the Executive Board of the I.S.M., Dhanbad in its meeting held on 9.9.2005 accepted their representations to switch over to the G.P.F. cum Pension scheme.

5. The petitioner- association is espousing the cause of such persons. It is not out of place to mention here that the respondent- I.S.M., Dhanbad stands by their decision to allow its employees to switch over to the Pension scheme stating that the earlier decision was a mistake. The Government of India, however has refused to accept the decision of the Executive Board of I.S.M.,Dhanbad to allow such 4 employees to switch over to the G.P.F cum Pension Scheme. The total number of employees as per the petitioner- association of the I.S.M.Dhanbad who are adversely affected by such decision are 37 currently working as teachers while 6 such teachers have already retired.

6. Learned senior counsel Mr. Anil Kumar Sinha appearing on behalf of the petitioner has assailed the impugned order on the following grounds:- The Office memorandum of 1.5.1987 clearly provides that those who were in service on 31.9.1987 were to exercise a conscious option to remain under the C.P.F scheme and if no option was received by the said date the empoyees were deemed to come over to the pension scheme. Those employees who are now affected are those who had opted for the C.P.F scheme after the notification issued by the I.S.M.Dhanbad asking them to exercise such option. The names of such persons are enclosed as Annexure-21 to the writ petition. Those persons are said to be appointed afresh through advertisement under direct recruitment after the cut off date 1.5.1987. Therefore it is submitted that under the terms of the Office memorandum dated 1.5.1987 they ought to have been treated under the Pension scheme as there was no requirement to exercise any option. Vide Annexure-19, petitioner have enclosed the list of such employees who were also appointed after the cut of date and who are getting the benefit of the pension scheme. Learned senior counsel has referred to Rule 3 of the Bye laws to further buttress his contention that these persons are fresh appointee in the respondent- I.S.M.,Dhanbad through advertisement for direct recruitment, though they were serving in different posts under the same I.S.M.Dhanbad from before. The appointment letters of some of the said persons have been annexed as Annexure-34. It is this mistake which has been corrected on the representation of such employees by the decision of the Executive Board of the I.S.M.,Dhanbad under agenda no. 128.7 in its meeting held on 9.9.2005 which is annexed as Annexure-4 to the writ petition. Learned Senior counsel has taken efforts to point out that the author of the impugned letter, 5 Annexure-5 , Mr. Puran Singh was also a member of the Executive Board, which after considering his objection decided to allow these persons to switch over to the pension scheme. He refers to the 129th meeting of the Executive Board on 1.12.2005 under agenda no. 129.14.1 where the opposition of the member of the M.H.R.D was overruled.

7. In order to support the contention of the petitioner to allow such switch over to the pension scheme from the C.P.F scheme, judgment rendered by the Delhi High Court in W.P.S. No. 8489 of 2011 dated 25.2.2013 and analogous case (Annexure-22) has been relied. The petitioner has also relied upon the judgment of the Punjab and Haryana High Court rendered in C.W.P. No. 4262 of 2006 dated 26.3.2012 (Annexure-14) in the case of National Institute of Technology, Kurukshetra, which is also a deemed University. It has been submitted that the Delhi High Court accepted the contention of the petitioner therein, who were employees of N.C.E.R.T., also an autonomous organization like the I.S.M.Dhanbad, to switch over to the G.P.F scheme. Learned senior counsel submitted that the Punjab & Haryana High Court also in the case of employees of N.I.T.Kurukshetra permitted such employees who were governed by the Central Civil Services Pension Rules, 1972 and were appointed prior to 1.1.2004 and were contributories to the C.P.F to redeposit the amount drawn by them with interest @ 12% per annum to be admitted to the pension scheme of the Central Civil Services(Pension Rules),1972. Such benefit were also extended to the employees who were not parties before the Court. The said judgment has been complied with by the N.I.T, Kurukheshtra by issuing advertisement no. 19/2012 (Annexure-15) and also accorded approval for implementation by the Ministry of H.R.D, Department of Higher Education through its letter dated 11.2.2013(Annexure-16) and also laid down modalities of its implementation vide letter dated 21.2.2013 (Annexure-17). The petitioner, contended that the pension scheme is a beneficial provision; a social security scheme, and therefore an 6 interpretation which advances the interest of the beneficiaries should be accepted. Learned counsel for the petitioner has also relied upon judgment rendered by the Apex Court reported in 2006(5) Supreme Today 39 to submit that question of financial constraint should not come in the way of implementation of the scheme. Learned senior counsel has ssubmitted that the opinion of the Ministry of Finance which states that the scheme is not applicable to autonomous bodies, is wholly misconceived as the scheme has widely been adopted by various autonomous institutions such as N.I.T., Kurukheshtra, N.C.E.R.T. as also Bureau of Indian Standards. Learned counsel has relied upon the judgment rendered by the Hon'ble Apex Court relating to the employees of Bureau of Indian Standards reported in 2006(12) SCC 53 in respect of the same scheme. On these grounds, it has been argued on behalf of the petitioner that once the Executive Board of I.S.M.,Dhanbad has chosen to allow them the benefit of the Scheme, realising their mistake, the refusal of the M.H.R.D, Government of India is wholly arbitrary and in teeth of the provisions of the Office Memorandum of 1.5.1987. Such a differential treatment between similarly placed teachers is bound to result in hostile discrimination and violation of Principle of Equality.

8. Arguments of the learned counsel for the respondent-Indian School of Mines have proceeded on two fold footings; first is in relation to the question of entitlement of the employees of ISM to the Pension Scheme under the office memorandum of 1st May, 1987. Counsel for the ISM, while justifying the adoption of the Pension Scheme for its employees, then delved upon the second related issue i.e. the financial liability, which may be incurred if the employees involved in the present case are permitted to switch over to the Pension Scheme.

9. By referring to the relevant paragraphs of the OM dated 1st May, 1987, learned counsel has also interpreted it in similar fashion as the petitioners. As per them, upon implementation of the 4th Central Pay Commission and adoption of the OM by the ISM, those employees who were in service were required to 7 exercise an option either to continue in the CPF Scheme by 30th September, 1987 and if no option is exercised by any such employee, he would be deemed to come over to the Pension Scheme. It has been admitted on their part that the ISM after adoption of the said Scheme asked for such an option only after the cut off date 30th September, 1987. The first such notice seeking option was issued on 19.12.1987 with the condition that the option should be exercised by 30th January, 1988. Notifications were again issued on 03.01.1994 and 22.06.1994 giving CPF optees another chance to exercise their choice to remain in the CPF Scheme or to change over to the GPF cum Pension Scheme. The petitioner-Association is espousing the cause of those teachers, who opted to continue in the CPF Scheme. 38 are in service as on 01.12.2013, while 8 such employees had retired/resigned.

10. Counsel for the ISM has submitted that the request of teachers' representative was placed before the Executive Board for change over to the GPF- cum-Pension Scheme from CPF Scheme. The Executive Board in its 128 meetings considered their representations and resolved that option to retain CPF given nearly 20 years ago was based on some misapprehension and in violation of directives of the Government. Therefore, this mistake needs to be rectified since no option was required to be taken at that stage from staff/faculty, who joined the institute after 1.1.1986. Therefore, it was agreed that since the offer of option was asked for after 30th September, 1987 and also for those candidates appointed through open selection after the above dates, they were ab initio not in the order. The mistake needed to be corrected and faculty/staff have to be treated having remained in GPF. The ISM, therefore, has taken a stand that the decision to change the option to GPF Scheme is not a fresh option but only a correction of the mistake committed by the ISM Administration in implementing the Office Memorandum of 1st May, 1987 in letter and spirit.

11. Mr. Anoop Kumar Mehta, learned counsel appearing for the ISM, has submitted that the decision to refuse change over to the GPF Scheme is based 8 upon a misconception that the office Memorandum dated 1st May, 1987 is not applicable to autonomous organization. He has also referred to judgment of the Punjab & Hariyana High Court and Delhi High Court, in the case of Employees of NIT, Kurukshetra as also that of the Employees of N.C.E.R.T. He has also referred to the judgment of the Hon'ble Supreme Court in the case of S.L. Verma and others (supra), who were also employees of autonomous organization like the Bureau of Indian Standards. Referring to the paragraph 7 of the judgment of the Hon'ble Apex Court in the case of S.L. Verma (Supra), he submitted that by a legal fiction created under the said Scheme, only an employee, who consciously opted to continue with the CPF Scheme by 30th September, 1987, would not become a member of Pension Scheme, otherwise any other employees would be deemed to continue in GPF Scheme as per clause 3.2 of the OM. Therefore, it has been submitted that the ISM, which is also an autonomous organization, was fully entitled to adopt this Scheme. The Scheme is running in respect of all other employees except those, who are now seeking switch over to the Pension Scheme.

On the question relating to the financial burden being caused, learned counsel has referred to the statements made in their second counter affidavit. As per their contention, the financial implication/additional financial burden which would accrue, if the retired/resigned employees are allowed to switch over to the GPF-cum-Pension Scheme, would be Rs. 1,98,74,722/- . The estimated pension to 38 employees on roll as on 1st December, 2013 and reckoning the last retirement in 2026, the sum would be Rs.19,53,20,532.00/-. Para-10 and 11 of the supplementary counter affidavit filed on behalf of respondent nos. 4 and 5 is reproduced herein below:

"10. That the amount of employers contribution to be retained by the ISM, Dhanbad would -

(a) Employers contribution till date Rs. 5,98,95,914.00

(b) Amount receivable from retired employees Rs. 1,41,00,109.00

(c) Liable employers matching contribution to the 9 petitioner's till their retirement Rs. 4,05,78,876.00 Adding these 3 amounts the figure comes to Rs. 11,45,74,899.00.

11. That the net financial burden therefore would be Rs. 19,53,20,532.00 - Rs. 11,45,74,899.00 i.e. Rs. 8,07,45,633.00

12. The Union of India, Ministry of Human Resources Development Department represented by their counsel Mr. Prabhash Kumar, has, however, opposed the prayer firstly on the ground that the writ petition has been preferred by the Association of Teachers and the individual aggrieved employees, are not before this Court. They have consciously exercised their option more than 20 years back and their option had not been withdrawn. Moreover the opinion of the Ministry of Finance, which is the basis of the impugned order at Annexure 5, has not been challenged. Referring to the same judgment of the Supreme Court in the case of S.L. Verma (supra), it is submitted that the Apex Court upheld the judgment of the learned Single Judge, which imposed a rider that Union of India would not be liable to financial liability. It has been submitted that if the respondent-ISM is willing to bear the financial burden, the Union of India has no objection to it.

13. According to the counsel for the respondent-Union of India, the concerned employees, after having realized that the rate of interest have decreased continuously over the year for the CPF opteess and the fact that the GPF-cum- Pension optees would get continuous increase in their pension amount with DA as also the benefit of commuted value of Pension raised their demand in the year 2004-2005 to switch over to the GPF-Pension Scheme. Learned counsel has referred to the statements made in the supplementary affidavit filed on behalf of the petitioner, which indicate the reason to raise such a demand at a much later stage. The said scheme itself has been abolished from 01.01.2004. He has also referred to the decision of the Executive Board in the meeting held on 9th September, 2005 where the representative of the Ministry had objected to such a 10 change over to the GPF-cum-Pension Scheme. He has distinguished the judgment of the Punjab & Hariyana HIgh Court in the case of NIT, Kurukshetra employees (Supra) by stating that the said employees were covered by the CCS (Pension) Rules, 1972 while no reliance upon such rules has been made by the petitioner herein.

14. Learned counsel further argued that the MHRD proposal has not been accepted by the Department of Expenditure for the reason that the introduction of the Pension Scheme would increase much higher financial outlay with every revision and similar demand by different such autonomous organization will result in huge financial implication. He has submitted that once the option was exercised, that was final, which cannot be withdrawn later. He has referred to the decision of the Hon'ble Supreme Court in the case of Krishena Kumar vs. Union of India & others (1990) 4 SCC 207.

15. Learned counsel for the Union of India has also relied upon the judgment rendered by the Apex Court in the case of State of Rajasthan Vs. A.N.Mathur & ors., reported in 2013 (IV) JLJR (SC) 460 as also in the case of Rajasthan Agriculture University, Bikaner Vs. State of Rajasthan & ors., reported in 2013 (IV) JLJR (SC) 92, in support of his contention that option exercised for CPF Scheme even belatedly cannot be withdrawn. He has further argued that there are no place for sympathetic consideration in such matters where a cut off date is fixed for exercise of such option. He has referred to the judgment of the Apex Court in the case of Sudhir Kumar Consul Vs. Allahabad Bank, reported in 2011 (3) SCC 486. Therefore, the Union of India has refused to accord permission to such change of option to switch over to the GPF-cum-Pension Scheme after 18-20 years. By referring to the last affidavit filed on 20.01.2014 on behalf of MHRD, it has been submitted that the ISM is a centrally funded technical institution receiving grant in aid from the Ministry of Human Resources Development, Department of Higher Education on yearly basis for meeting the 11 plan and non-plan expenses. The ISM is paying pension to the retired employees out of grant in aid received from the Ministry, which is applicable to optees of GPF Pension Scheme.

16. In response, learned counsel for the ISM has submitted that the judgment relied upon by the counsel for the Union of India, in case of State of Rajasthan (supra), in the case of Rajasthan Agriculture University, Bikaner (supra), and in the case of Sudhir Kumar Consul Vs. Allahabad Bank (supra) are not in relation to the office memorandum of 1st May, 1987. It has been reiterated on their part once again that the only reason to refuse permission is opinion of the Ministry of Finance, according to which the office memorandum is not applicable to autonomous organization, which however is not correct. Therefore, the employees, who are affected by the impugned order should be entitled to switch over to the GPF-cum-Pension Scheme.

17. Upon hearing the counsel for the parties and traversing through the pleadings and documents on record, it emerges that the I.S.M., Dhanbad is a society registered under the Society Registration Act established to carry on the administration and management of the Institution, whose functions are primarily to provide instruction and research in such Branches of Engineering Technology, Applied Science as also Applied Arts as the school may think. A memorandum of Association and Rules and Regulations have been framed thereunder for carrying out the activities of the school. The authorities of the school as prescribed under the Rules and Regulations are the General Council; the Executive Board ; the Academic Council; the Financial Committee and any other Standing Committee or Committees which may be set up for discharging functions. The General Council consists of members from various institutions including the A.I.C.T.E, U.G.C., Council of Scientific and Industrial research, Geological Survey of India, O.N.G.C. , National Mineral Development Corporation, Central Mines Planning and Design Institute, representative of Parliament with Chairman nominated by 12 the Central Government. There are other representatives of various Ministries of Government of India such as Ministry of Finance, Steel and Mines, Ministry of Education and Social Welfare, Labour, Petroleum and Chemical. The General Council has the powers and functions to nominate the member of the Executive Board; to elect the members of the Finance Committee; to approve the annual budget of the school; to consider and approve programmes and special projects proposed by the Executive Board; to frame its regulations, bye laws and rules and procedures and such other acts for the maintenance of the organization and performance and functions of the school. In discharging its function, the General Council shall be guided by such directions on questions of policies as may be given to it by Central Government.

18. The Executive Board comprises of number of members with the Chairman to be nominated by the Central Government, representative of U.G.C., A.I.C.T.E, Ministry of Finance, D.G.M.S, representatives of Ministry of Education, Energy, C.M.D., C.M.P.D.I Ltd. , a Professor of the School as also an Associate Professor and Lecturer with Director of the School being the Ex-Officio member. The Central Government may also appoint any other members on the Executive Board. The powers and functions of the Executive Board are contained in the Regulations which include the exercise of the Executive authority of the school, subject to the policy directive of the General Council and / or of the Central Government; supervision and control of the work of the school; consider and prepare programme of the school for consideration and approval of the General Council; to draw the annual budget to be submitted for the approval of the General Council; prepare the annual report; to incur expenditure on the establishment and to prescribe terms and conditions of appointment to posts of the school subject to the approval of the General Council; to incur expenditure as per the approved budget and the rules prescribed from time to time and policy directives of General Council and / or of the Central Government, apart from other 13 functions as are indicated in the regulations. It also has a power relating to the constitution of pension and Provident Fund for the benefits of Officers, Teachers and other staffs of the school. It also exercises powers relating to the conditions of residences of students of the school, fees etc, classification and methods of appointment and terms and conditions of service of all posts under the control of the school. The regulation also lays down the powers of the academic council and other committees.

19. In the aforesaid scheme of things, the Executive Board chose to adopt the Office Memorandum of 01st May 1987 issued by the Government of India, DOPT which provide for change over from CPF. to GPF.-cum-Pension Scheme. However, the scheme of 01st May 1987 does not appear to have been implemented contemporaneously as that in Central Government Ministries and Department. Therefore, on its adoption, the I.S.M. chose to seek exercise of option of its employees firstly by notice dated 19th December 1987. The exercise to seek option to remain in the CPF scheme however, was further undertaken till 1994 admittedly as per the notices issued on 03rd January 1994 and 22nd June 1994. Therefore, though the provisions of the Office Memorandum stipulated a cut-off date of 30th September 1987 for the employees to exercise their option to continue under the CPF Scheme, the I.S.M., did not adhere to such a cut-off date. Therefore, the contention of the petitioner that those who did not furnish their option till 30th September 1987, would be deemed to come over to the pension scheme, as per the aforesaid O.M., cannot be accepted. As a matter of fact, those employees who are aggrieved by the impugned letter dated 16th November 2005, issued by the M.H.R.D., Government of India, did exercise an option to remain in the CPF scheme under the option asked for by the respondent I.S.M. which exercise was extended from 19th December 1987 when it was first asked, till 22nd June 1994. The contention of the respondent I.S.M. that the said option was asked as a mistake from its employees about the import of O.M. Dated 01st May 1987, 14 cannot be accepted. The Executive Board of the I.S.M. in a conscious exercise with full application of mind to the terms and conditions of O.M. dated 01 st May 1987, chose to adopt it and despite a cut-off date i.e. 30th September 1987, indicated in Para-3.2 thereof, asked for an option from its employees for the first time in December 1987 and extended from time to time and lastly on 22 nd June 1994.

20. The plea of such mistake of facts taken by the respondent I.S.M., cannot be accepted. As has been succinctly stated by the celebrated author in the book "Kerr on the Law of Fraud and Mistake", mistake has to be some unintentional act, omission or error arising from unconscious ignorance, forgetfulness, imposition or misplaced confidence. But mistake of law happens when a party having full knowledge of the facts comes to an erroneous conclusion as to their legal effect. However, the rule is that ignorance of law shall not excuse a man or relieve him from the consequences of a crime or from liability on a contract. The rule is not only expedient, but is absolutely necessary. If ignorance of law were admitted as a ground of exemption, the courts would be involved in questions which it were scarcely possible to solve, and it would render the administration of justice next to impracticable, for in almost every case, ignorance of law would be alleged, and the Court would, for the purpose of determining the point, be often compelled to enter upon questions of fact, insoluble and interminable. Therefore, the decision of the Executive Board of I.S.M. in its meeting held on 9 th September 2005 accepting the representation of its employees to switch over to the GPF- cum-Pension Scheme on the basis of a premise that the earlier decision to invite option from its faculty / staff was a mistake, is wholly untenable in law as well as on facts.

21. It may have later on dawned upon such aggrieved employees exercising CPF option on account of corresponding decrease of rates of interest for the CPF optees, while continuous increase of rates for GPF-cum-Pension optees to raise 15 such a demand in the year 2004-2005 to switch over to GPF-cum-Pension Scheme. The option once exercised consciously by such employees to remain in CPF Scheme has neither been withdrawn, nor can be permitted to be legally withdrawn. In a matter relating to the exercise of option to remain in the CPF Scheme after the cut-off date by the employee of RajasthanAgriculture University, Bikaner (Supra) in which the appellant university had accepted the option even belatedly, the Hon'ble Supreme Court clearly held that such an employee could not get the benefit under the deeming fiction incorporated in the notification. In the aforesaid case, the Hon'ble Supreme Court clearly held that such employee being highly literate having known the consequences, opted for the CPF Scheme after the said cut-off date prescribed in the notification, cannot be allowed to claim the benefit of deeming fiction to claim that he continued under the GPF-cum-Pension Scheme. The arguments in the present case by the petitioner on similar lines therefore have also to be negatived.

22. In the present case, after the cut-off date under O.M. Dated 01st May 1987 i.e. 30th September 1987, the respondent I.S.M. asked for option from its employees and the Members of the petitioner Association being the faculty of teaching employees, also highly literate, exercised their option with full consciousness which has been accepted by the I.S.M. with an open mind. Therefore, they cannot be allowed to claim that they are entitled to continue under the deeming fiction of O.M. dated 01st May 1987 to continue under the GPF-cum- Pension Scheme. It is stated that the similar employees like these petitioners who were appointed through direct recruitment after the said date of 30th September 1987, have continued under the GPF-cum-Pension Scheme. However, the affidavits of the petitioner and the I.S.M. are silent on the issue whether they had exercised their option or not to remain under the CPF scheme, as per the options invited by the I.S.M. Therefore, the argument that the similarly placed employees like the aggrieved members of the petitioner Association have been allowed to 16 avail of the GPF-cum-Pension Scheme, will not come to the aid of such employees who consciously opted to remain in the CPF scheme on adoption of the O.M. dated 1st May 1987 by the I.S.M. and on inviting option from its employees as aforesaid.

23. The present aggrieved employees who opted for the CPF Scheme, do not form homogeneous class to that of employees who continued in the GPF-cum- Pension Scheme. In the case of Krishena Kumar (Supra) also, on the acceptance of the recommendation of the 4th Pay Commission effective from 01st January 1986, another pension option was given to the Railways employees who were in service as on January 01, 1986 providing that those who did not specifically opt out of the pension scheme by December 17, 1987, would be automatically deemed to have opted for the pension Scheme. Distinguishing the ratio laid down in the case of D.S.R. Nakara vs. Union of India [(1983) 1 SCC 305], the Hon'ble Supreme Court found that the pension scheme and the P.F. Scheme are structurally different and employees retiring under both the scheme, did not form homogeneous class. It was held that rights of each individual P.F. retiree finally crystallized on his retirement, where-after no continuing obligation remain, while on the other hand, as regards the pension retiree, the obligation continues till their death. It was further held that the continuous obligation of the State in respect of pension retirees is adversely affected by fall in rupee value and rising prices which, considering the corpus already received by the P.F. retirees, they would not be so adversely affected ipso facto. On the question relating to the financial burden to be includible in the annual financial statement, the Hon'ble Apex Court observed that it had to be loath to pass any order or give any direction because of the division of functions between the three co-equal organs of the Government under the Constitution.

24. In the instant case, as is apparent, the decision of the Executive Board of the I.S.M. dated 9th September 2005 permitting the CPF optees to switch over to GPF- 17 cum-Pension Scheme, is bound to result in financial burden of approximately Rs. 8.00 crores. As per the stand of the respondent Union of India and not denied by I.S.M., the said burden obviously is to be met from the grant-in-aid provided by the M.H.R.D., Government of India.

25. In view of the stand taken by the respondent Government of India, and not refuted by the respondent I.S.M., I.S.M. is a centrally funded technical institution receiving grant-in-aid from the M.H.R.D., Department of Higher Education on yearly basis for meeting plan and non-plan expenditure. The I.S.M. is paying pension to its retired employees out of grant-in-aid received from the Ministry. In the case of Sudhir Kumar Consul (Supra), the Hon'ble Supreme Court while dealing with the challenge to fixation of cut-off date for providing certain pensionery benefits under the existing supplementary pension scheme in lieu of gratuity only to those employees who were officers as on 01st July 1979, upheld the validity of the cut-off date. Quoting the judgment rendered by the Hon'ble Supreme Court in similar circumstances, in the case of All India Reserve Bank Retired Officers' Association vs. Union of India, the Apex Court held that when new scheme is introduced which has no connection with the existing scheme, one such consideration may be financial implication and the existence of capacity of the employer to bear the burden. Therefore, while upholding the validity of the fixation of the cut-off date which gave the pensionery benefit in lieu of gratuity to those employees who were officers on 01st July 1979, it also gave a word of wisdom that in a society governed by rule of law, sympathy cannot override rules and regulations. Judgment in the case of LIC vs. Asha Ramchandra Ambedkar [(1994) 2 SCC 718 was profitably quoted to give a word of caution to the High Courts and Administrative Tribunals that they cannot confer benediction impelled by sympathetic consideration. Yielding to instinct will tend to ignore the cold logic of law. Para-32 of the judgment containing the opinion of the Hon'ble Supreme Court on the aforesaid issue, is being quoted hereunder: 18

32. In LIC v. Asha Ramchandra Ambedkar wherein the Court observed:

10. .... The High Courts and the Administrative Tribunals cannot confer benediction impelled by sympathetic consideration ......

Yielding to instinct will tend to ignore the cold logic of law. It should be remembered that 'law is the embodiment of all wisdom'. Justice according to law is a principle as old as the hills. The courts are to administer law as they find it, however, inconvenient it may."

26. From the discussions made herein above, it is therefore apparent that though the I.S.M. may have a claim of being autonomous organization, but it is dependent upon the financial aid from the M.H.R.D., Government of India to meet its plan and non-plan expenditure including payment of pension to its retired employees. The decision of the Executive Board dated 9th September 2005 to allow its employees to switch over to the GPF-cum-Pension Scheme therefore, could not be a final word in the matter. Even as per the rules and regulations of the I.S.M, the said expenditure as per the annual budget prepared by the Executive Board, is subject to the approval by the General Council and policy directives of the General Council and / or of the Central Government. The O.M. dated 01st May 1987 apparently has been adopted in different institutions including such technical institution like the respondent I.S.M. as is also obvious from the judgment rendered by the Hon'ble Supreme Court in the case of Union of India & another vs. S.L. Verma and others reported in (2006) 12 SCC 53. In the said judgment which has been relied upon by the petitioner as well by the respondent I.S.M., the Hon'ble Supreme Court after considering the operation of the scheme and the deeming fiction created under the cut-off date 30th September 1987, upheld the view of the learned Single Judge allowing the writ petition with a rider that the Union of India would not be liable to financial liability. In the instant case, as would also appear, the Union of India has to bear the financial burden if such switch over to the GPF-cum-Pension Scheme is allowed by the respondent I.S.M. to the aggrieved CPF optees who are agitating their grievances in the present writ application. In the judgment rendered by Delhi High Court in WPS No. 8489/2011 and WPS No. 8491/2011, two petitioners therein had joined 19 through direct recruitment under the NCERT and were continuing under the CPF scheme having exercised their option. They approached the Delhi High Court after the NCERT refused them permission to switch over to the GPF-cum- Pension Scheme. Learned Division Bench of the Delhi High Court found that two similarly situated persons namely Ms. Chandra and Ms. Pushpalata Verma who were also appointed through direct recruitment and were CPF optees in their erstwhile organization, were permitted to switch over to the GPF-cum-Pension Scheme upon permission being granted by the M.H.R.D. It therefore held that if the respondent NCERT had permitted similarly placed appointees to switch over to the GPF Scheme after being selected through the same recruitment process, petitioners therein were entitled to similar treatment on the grounds of legitimate expectation.

27. In the present case, however option have been invited by the respondent I.S.M. after adoption of the said O.M. beyond the cut-off date of 30th September 1987, which has been consciously exercised by the present aggrieved employees to remain in CPF Scheme. There has been no instances shown where such CPF optees have been allowed to switch over by the respondent I.S.M. and Government of India through M.H.R.D. to the GPF-cum-Pension Scheme. On the contrary, the Hon'ble Supreme Court in the case of Rajasthan Agriculture University (Supra) clearly held that if an option has been consciously exercised by the concerned employee even after the cut-off date fixed by the university and accepted by it, he cannot be allowed to claim the benefits of deeming fiction under the notification at a later stage. Therefore, this Court is inclined to follow the view laid down by the Hon'ble Supreme Court in the aforesaid judgment. The respondent Government of India has to meet the expenses arising out of such switch over to the GPF-cum-Pension Scheme and therefore, it is fully justified to refuse to do so after aggrieved employees had exercised their option almost 10 to 15 years back on being invited by the respondent I.S.M. to remain in the CPF 20 Scheme. Chronology of facts in the instant case therefore also show that these aggrieved persons after a long lapse of time, have made representations upon realizing the decreasing attendant benefits to the CPF optees compared to that of GPF-cum-Pension retirees in view of the variation in interest rates. The stand of the respondent Government of India therefore, cannot be said to be incorrect or improper. Such a view also find support from the judgment rendered by the Hon'ble Supreme Court in the case of State of Rajasthan (Supra) in which case, the university had unilaterally decided to give huge financial benefit to its employees upon change from the CPF Scheme to the Pension Scheme without consulting the appellant State Government who was to bear the financial burden. So far as the judgment relied upon by the petitioner, rendered by the Punjab & Haryana High Court, is concerned, same were rendered in the circumstances where employees of Regional Engineering College, Kurukshetra, also a deemed university under N.I.T. Act, 2007 were governed prior to 01st January 2004, by the Central Civil Services (Pension) Rules 1972 and Central Provident Fund (Central Services) Rules, 1960. In the said case, the question relating to exercise of option under Office Memorandum dated 01st May 1987 were not under consideration. Therefore, the judgment rendered in the said case is of no help to the petitioners in the present case.

28. In the light of the aforesaid discussions and reasons recorded herein above therefore, this Court is not inclined to interfere in the impugned letter dated 16th November 2005 whereunder the M.H.R.D., Government of India has denied request of the respondent I.S.M. to allow its faculty staff who were under CPF Scheme to switch over to the pension scheme. The writ petition is accordingly dismissed, however with no order as to cost.

(Aparesh Kumar Singh, J) A.Mohanty/Pandey/Ranjeet/

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