Central Administrative Tribunal - Delhi
A.P.Verma vs National Council Of Educational ... on 10 November, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 1160/2010 With OA 1168/2010 New Delhi this the 10th day of November, 2010. Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K.Joshi, Vice Chairman (A) OA 1160/2010 A.P.Verma, S/o Late Shri G.L.Srivastava, R/o B-2/13, Vasant Vihar, Ground Floor, Front, New Delhi-110057 Applicant (By Advocate Shri Sunil Kumar Singh ) VERSUS National Council of Educational Research & Training, Sri Aurobindo Marg, New Delhi-110016 through its Secretary. Respondent (By Advocate Shri R.K.Singh ) OA 1168/2010 Avant Kumar Sacheti, S/o Shri Shyam Lal Sacheti, R/o 203, Brij Kripa, C-147, Mangal Marg, Bapu Nagar, Jaipur. Applicant (By Advocate Shri Sunil Kumar Singh ) VERSUS National Council of Educational Research & Training, Sri Aurobindo Marg, New Delhi-110016 through its Secretary. Respondent (By Advocate Shri R.K.Singh ) O R D E R Mr. L.K.Joshi, Vice Chairman (A) :
We are dealing with both the OAs in this common order as the facts are identical and the same questions of law are involved. However, facts are extracted from the OA number 1160 of 2010.
2. The Applicant is aggrieved that his representation for change- over to pension scheme from the Contributory Provident Fund (CPF) scheme has been rejected by order dated 12.03.2010 passed by the Respondent-National Council for Educational Research and Training (NCERT). He is seeking direction to the Respondent to give to the Applicant the option of pension and General Provident Fund (GPF) and the benefit of past service rendered in the same organisation.
3. The facts of the case briefly stated are that the Applicant joined the NCERT on 08.09.1966 as Mechanical Engineer in the Central Science Workshop at the NCERT. He was later selected for the post of Professor (Vocational Education) with effect from 21.04.1994 by an order dated 26.04.1994. He competed for this post with the internal and external candidates. When the Applicant joined the NCERT he had opted for the CPF scheme. Following the report of the Fourth Central Pay Commission the Government of India in the Department of Pension and Pensioners Welfare circulated an Office Memorandum No. F.4/1/87-PIC-I dated 01.05.1987, whereby the Government employees subscribing to CPF scheme were given an option to switch over to pension/GPF scheme. The cut-off date for exercising the option was 30.09.1987. It was also provided in the scheme that in case an employee did not give any option he/she would be deemed to have opted for the pension scheme. If an employee wanted to continue under the CPF scheme, he/she had to exercise the option for the CPF scheme. The relevant portion of the Office Memorandum is reproduced below:
(a) All CPF beneficiaries who were in service on 01.01.1986 and who are still in service on the date of issue of these orders will be deemed to have come over to the Pension Scheme.
(b) 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.
(c) The option once exercised shall be final. (emphasis supplied).
It is not in dispute that the Applicant opted specifically for the CPF scheme by his letter dated 12.08.1987.
4. The Applicant gave a legal notice dated 1.10.2009 to the Respondent-NCERT to give him the benefit of the pension/GPF scheme. It was stated therein that the Applicant had made a request for change-over from CPF scheme to the pension scheme on 24.08.2001 but no reply to the same was given and no action on the request was taken till the Applicant retired on superannuation. It was also stated that the Applicant made many requests for the change thereafter, which remained unheeded. Instance of one Mrs. M. Chandra, Professor of the Workshop, who was appointed as Professor on 16.02.1989 and was placed in the CPF scheme, but later on, on 9.04.2007 was allowed to switch-over to pension/GPF scheme. Example of one Mrs. Pushp Lata Verma has also been given. She was given an offer of appointment to the post of Lecturer, Zoology on 1.10.2003 and it was mentioned in the offer that she would be entitled to pension/GPF. It was further stated in paragraph 7 of the notice that:
That my client was appointed as Professor in an open selection through direct recruitment and candidates who were appointed with him on any post through direct recruitment were given GPF cum-pension scheme of the council as there was no scheme other than GPF-cum-pension scheme at that time. Had somebody been selected/appointed from candidates outside NCERT, he would have been given compulsorily GPF-cum-pension scheme existing at that time but my client has been deprived of the same. Your act and action of not accepting my clients request for GPF therefore tantamount to gross violation of Article 14 of the Constitution of India. The Respondent-NCERT rejected the representation of the Applicant on 6.11.2009 by, inter alia, stating that:
6. That my client further states that so far as the cases of Ms Pushpa Lata Verma and Mrs. M. Chandra are concerned, they were not in service of NCERT on 01.01.1986. Ms. Pushpa Lata Verma joined NCERT in 2003 as Lecturer in Zoology and Mrs.M.Chandra joined NCERT in 1989 as Prof. in Chemistry, when the GPF-cum-Pension Scheme (and not CPF Scheme) was already in vogue. There was never any occasion for them to exercise any such option to either choose CPF or GPF-cum-Pension Scheme. The Applicant then approached this Tribunal through OA number 3530 of 2010. As observed by the Tribunal in its order dated 25.01.2010 that the Applicant had stated that he would be satisfied if he was given an opportunity of being heard by the Respondent. The Tribunal directed the Applicant to report to the Respondent on 4.02.2010 at 11:00 AM and directed the Respondent-NCERT to hear him and pass appropriate orders and send those to the Applicant. The Applicant appeared before the Secretary, NCERT. He had raised the following points, as noted in the impugned order:
1. That OA No. 3530/09 has been filed before the Central Administrative Tribunal Principal Bench, Delhi.
2. That on 25.1.2010 the Honble Member of the Tribunal has passed an order wherein the applicant has been directed to report before the Secretary at 11.00 AM on 4th February 2010. The respondent Council was further directed to give a hearing to the applicant and pass appropriate order on his representation.
3. That the applicant, Dr. Verma pleaded that since Dr. M. Chandra had been allowed to switch over to the pension scheme from CPF and his case also being identical to Dr. Chandras case, he may also be permitted to switch over to pension scheme.
4. That Dr. Verma also represented that in the case of Dr.M. Chandra, she had opted for CPF when she joined as a Professor in NCERT, but thereafter she was allowed to change from CPF to Pension Scheme. Accordingly, Dr. Verma prayed for being granted the same benefit of switching over to Pension Scheme.
5. Further that one of the fellow professor of the applicant had sought information under Right to Information Act and in response thereto vide letter dated 23.10.2006 addressed to Under Secretary, MHRD, Delhi it was stated thus:-
The option for CPF/Pension Scheme is to be exercised within six months from the date of appointment of employee concerned. If the option is not received within this period it will be presumed that he has exercised for GPF/Pension.
6. From the above, Dr. Verma would like to urge that since the offer of appointment to the post of Professor was fresh appointment (the applicant having selected through open selection in direct recruitment process) he should be deemed to have opted for GPF/Pension.
7. The past service of the applicant should also be considered while determining the pension as the Council has done in the case of Dr. R.S. Kashyap and Dr. N.C. Dhatia.
8. That the applicant is prepared to surrender the amount paid to them under the CPF Scheme. Following the submissions by the Applicant the Respondent passed the impugned order dated 12.05.2010, by which the plea of the Applicant for giving him the benefit of pension/GPF scheme was rejected. It has been noted in the impugned order that the Applicant had opted for the CPF scheme when he joined the Respondent for the first time. When the Department of Pension and Pensioners Welfare issued the Memorandum referred to above for giving option for the pension scheme, the Applicant had specifically opted for the CPF scheme. It is stated that the Union Government did not issue any circular thereafter to ask for fresh options to shift from the CPF to pension scheme. It was further stated in the impugned order that according to a circular issued by the Government of India the persons in the CPF scheme would not be permitted to switchover to the pension scheme after 31.12.2003. It has further been stated in the order dated 12.05.2010 that the case of Professor M. Chandra is different from the case of the Applicant because the former joined the Respondent for the first time on 16.02.1989. At that time there was no choice available for the new entrants to opt either for the CPF or pension scheme. All the new entrants had to be compulsorily included in the pension scheme. It was clarified in the impugned order that although CPF scheme was applied to her originally, yet the mistake was rectified later on the advice of the Ministry of Human Resource Development by their communication dated 09.04.2007. The Applicant, on the other hand, had been with the Respondent before joining the post of Professor and after selection to that post continued with the Respondent. Therefore, the question of seeking fresh options from him did not arise, as he was already in the CPF scheme. The cases of Dr. R S Kashyap and Dr. N K Dholia are also different because these persons were covered by the pension scheme in their previous appointment and continued to do so. The representation of the applicant has finally been rejected by observing that:
Whereas in all other cases, when the individuals have in writing opted to remain in CPF in response to the Councils Circular No. F.15-4/87.EC dated 27.7.1987, they have been continued in the CPF Scheme. As per circular, option once exercised shall be final and therefore their cases cannot be re-opened and give the benefit of GPF/Pension Scheme.
5. The issue for consideration is thus restricted to whether after direct recruitment for the post of Professor the Applicant would be entitled to give a fresh option to be included in the pension scheme or the same option which he had given earlier under the Respondent would continue.
6. It is now well-established that once an option is exercised for opting for either the CPF or the pension scheme pursuant to the Office Memorandum of 1986 of the Department of Pension and Pensioners Welfare, it is not permitted to change it again. Although the Applicant was selected on the basis of direct recruitment for the post of Professor, yet his past service in the NCERT would be counted. The contribution he had made under the CPF scheme would continue and all future accretion of the contribution to the Provident Fund would accrue to the same account. In other words there is only a technical break in the service of the Applicant. In our considered opinion it would not mean that a fresh chapter in his service had begun and as a new entrant to service he would be entitled to be placed in the pension scheme. The Applicant himself has sought relief for considering his past service under the Respondent to be counted for the purpose of pension. Counting of the past service under the Respondent would mean that the Applicant had not begun with a clean slate, where past had been completely wiped out. The Applicant's option for the CPF scheme would, in our considered opinion, continue to be applicable for his service after direct recruitment to the post of Professor. The reliance of the Applicant on the judgement of the Honourable Supreme Court in R. Subramaniam Vs. Chief Personnel Officer, Central Railway, AIR 1995 SC 983 would not apply in the case of the Applicant. In this case the petitioner before the Supreme Court had retired in 1971. The petitioner had retired before the introduction of the pension scheme. The Tribunal had held that the persons who retired on or before the date on which pension scheme was introduced would be entitled to give an option, even after retirement, for the pension scheme. The amount of the Contributory Provident Fund, which had been given to the petitioner was directed to be refunded by him in lieu of pension. The Applicant was very much in service when the Department of Pension and Pensioners Welfare gave the option to opt either for the pension scheme or for the CPF scheme. It was made clear in that Office Memorandum that the option would be final once it was given. The Applicant opted for CPF scheme. The above cited case is, therefore, distinguishable on facts. The question was considered by the Honourable Delhi High Court in Prof. A.K. Sharma Vs. UOI & Anr., WP) No. 842/2003. The employees of the School of Planning and Architecture had approached the High Court challenging the order by which the competent authority had rejected their request for another option to change from the CPF to pension scheme. A prayer was made to direct the School of Planning and Architecture to give to the petitioners another option to switchover from the CPF to the pension scheme. The petitioners in this case had opted for the CPF scheme in 1987. They requested for switching over to the pension scheme in 1998. The School of Planning and Architecture recommended their case to the Ministry of Human Resource Development to allow the petitioners to give another option for switching over from the CPF scheme to the pension scheme. However, the Ministry of Human Resource Development turned down the request. The Delhi High Court considered the judgement of the Honourable Supreme Court in Krishna Kumar Vs. UOI & Ors., AIR 1990 SC 1782, wherein it was held as under:
The option given to the Railway employees covered by Provident Fund Scheme to switch over to the pension scheme with effect from a specified cut-off date would not be violative of Article 14 of the Constitution. It was never required to be decided in 1983 (2) SCR 165 that all the retirees formed a class and no further classification was permissible. In case of pension retirees who are alive the Government has a continues obligation and if one is affected by dearness the other may also be similarly affected. In case of P.F. Retirees each ones rights having finally crystallized on the date of retirement and receipt of P.F.benefits and there being no continuing obligation thereafter they could not be treated at par with the living pensioners. In each of the cases of option the specified date bore a definite nexus to the objects sought to be achieved by giving of the option. Option once exercised would be final. Options were exercisable vice verse. The specified date has been fixed in relation to the reason for giving the option and only the employees who retired after the specified date and before and after the date of notification were made eligible. This was substantiated by what has been stated by the successive pay commissions. The corresponding concomitant benefits were also granted to the provident fund holders. There was, therefore, no discrimination and the question of striking down or reading down clause giving option would not arise. The Honourable High Court dismissed the Writ Petition.
7. As we have observed above, the Applicant cannot claim that after his selection as Professor his service has begun afresh and as the new entrant, he would be entitled for becoming a part of the pension scheme. In fact, there is no break in the Service of the Applicant on his fresh selection. His future service has segued with the past service. The case of Professor M Chandra is different in the sense that the latter joined the service of the Respondent for the first time as a fresh entrant. She was not in the service of the Respondent before joining the post of Professor.
8. In the light of the above analysis, we do not find any merit in the pleas of the Applicant. The OAs are dismissed. There will be no orders as to costs.
(L.K.Joshi ) ( V.K. Bali) Vice Chairman (A) Chairman sk