Rajasthan High Court - Jodhpur
Gajendra Singh Rathore vs Central Administrative Tribunal on 22 October, 2021
Bench: Vijay Bishnoi, Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 14158/2019
Gajendra Singh Rathore S/o Shri Dhonkal Singh Rathore, Aged
About 59 Years, B/c Rajput, R/o Plot No. 45-A, Ajit Colony,
Jodhpur, Rajasthan.
----Petitioner
Versus
1. Central Administrative Tribunal, Jodhpur Bench, Jodhpur.
2. Kendriya Vidhyalaya Sangthan, Through Its
Commissioner, 18, Institutional Area, Shahid Jeet Singh
Marg, New Delhi.
3. Deputy Commissioner, Kendriya Vidhyalaya Sangthan,
(Regional Office), 92, Gandhi Nagar Marg, Bajaj Nagar,
Jaipur.
----Respondents
Connected With
D.B. Civil Writ Petition No. 2815/2019
1. The Commissioner, Kendriya Vidyalaya Sangathan, 18,
Institutional Are, Shaheed Jeet Singh Marg, New Delhi-
110016.
2. The Joint Commissioner, Kendriya Vidyalaya Sangathan,
18, Institutional Are, Shaheed Jeet Singh Marg, New Delhi
- 110016
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3. The Deputy Commissioner, Kendriya Vidhyalaya
Sangathan Regional Office, 92, Gandhinagar, Marg,
Bajajnagar, Jaipur.
4. Principal, K.V. No. 1, Air Force, Jodhpur (Rajasthan).
----Petitioners
Versus
1. Smt. Kumudini Pandey W/o Shri R.P.pandey, Aged About
60 Years, By Caste Pandey, R/o C-17, Arvind Nagar, Air
Force Area, Ratanada, Jodhpur (Rajasthan).
2. Central Administrative Tribunal, Jodhpur, Through Its
Registrar, Near Rajasthan High Court Campus, Jodhpur.
----Respondents
For Petitioner(s) : Mr. Himanshu Shrimali
For Respondent(s) : Mr. Avinash Acharya, Mr. Rajendra
Katariya Mr. Mahendra Singh Godara
HON'BLE MR. JUSTICE VIJAY BISHNOI
HON'BLE MR. JUSTICE SUDESH BANSAL Judgment / Order 22/10/2021 [PER HON'BLE VIJAY BISHNOI, J.] These writ petitions have been filed by the petitioners assailing the orders dated 30.8.2019 and 11.10.2018 passed by the Central Administrative (Downloaded on 23/10/2021 at 08:58:36 PM) (3 of 13) [CW-14158/2019] Tribunal, Jodhpur Bench, Jodhpur (for short 'the CAT') in OA Nos.290/00371/2018 and 290/00411/2017 respectively. Vide judgment dated 30.8.2019, the CAT has dismissed the OA preferred by petitioner - Gajendra Singh Rathore, whereas vide judgment dated 11.10.2018 has allowed the OA preferred by respondent - Smt. Kumudini Pandey.
Brief facts of the case are that petitioner - Gajendra Singh Rathore was appointed as Trained Graduate Teacher (Physical and Health Education) on 1.3.1985 and respondent - Smt. Kumudini Pandey was appointed as Primary Teacher on 10.7.1981 in the Kendriya Vidhyalaya Sangathan. At the time of their joining, Contributory Provident Fund Scheme (for short 'the CPF Scheme') was in vogue under the Kendriya Vidhyalaya Sangathan, as such, both became members of the CPF Scheme.
On 1.5.1987, the Government of India issued an Office Memorandum and as per the said Memorandum, Central Government employees who were members of the CPF Scheme were given an option to continue to remain members of the CPF Scheme and for that purpose, they were required to exercise a positive option to the said effect. The above referred Office Memorandum also clarifies that those employees who did (Downloaded on 23/10/2021 at 08:58:36 PM) (4 of 13) [CW-14158/2019] not submit any option would be deemed to have switched over to the Pension Scheme. Pursuant to the Government of India Memorandum dated 1.5.1987, the Kendriya Vidhyalaya Sangathan issued separate Memorandum dated 1.9.1988 on similar terms.
As per the above referred two Memorandums, the employees of the Kendriya Vidhyalaya Sangathan who desired to continue to be members of the CPF Scheme had to exercise a positive and affirmative option to continue to be a member of the CPF Scheme, however, they were not required to exercise a positive option to switch over to the Pension Scheme and all those employees who did not exercise a positive option to continue to be a member of the CPF Scheme would be deemed to be members of the Pension Scheme. Admittedly, petitioner - Gajendra Singh Rathore and respondent - Smt. Kumudini Pandey did not submit any option to continue to be members of the CPF Scheme pursuant to the Office Memorandum dated 1.9.1988 issued by the Kendriya Vidhyalaya Sangathan, however later on, when they realized that the money deducted from their salary was being credited to the CPF account and not to the General Provident Fund Account, they filed representations highlighting the fact that neither of them (Downloaded on 23/10/2021 at 08:58:36 PM) (5 of 13) [CW-14158/2019] exercised the positive option to continue to be members of the CPF Scheme and when their representations were not succeeded, both of them approached the CAT by way of filing separate OAs.
The OA preferred on behalf of respondent - Smt. Kumudini Pandey is allowed by the CAT vide order dated 11.10.2018 with a direction to the Kendriya Vidhyalaya Sangathan to convert Smt. Kumudini Pandey as pensioner under GPF Scheme in pursuance of the Office Memorandum dated 1.9.1988 and to pay her the revised pension including the arrears for which she became eligible by such conversion with a further direction to the respondent - Smt. Kumudini Pandey to refund the amount received by her towards the CPF Scheme with 9% per annum interest from the date when she received till the date of payment. The CAT has further clarified that the arrears of pension payable to respondent - Smt. Kumudini Pandey under the GPF Scheme may be adjusted towards refund of CPF amounts received by her with interest.
However, the OA filed by petitioner - Gajendra Singh Rathore is dismissed vide order dated 30.8.2019 while observing that since he was aware of the fact that he being governed by the CPF Scheme since 1997, his (Downloaded on 23/10/2021 at 08:58:36 PM) (6 of 13) [CW-14158/2019] prayer to consider his case under the GPF cum Pension Scheme cannot be accepted. The CAT has also observed that as petitioner - Gajendra Singh Rathore had exercised positive option towards CPF Scheme when he changed his nominations in the year 1997 nominating his wife and son for distributing and crediting the amount of CPF in the event of his death, it clearly demonstrates that he had actually exercised his option in favour of CPF Scheme.
Learned counsels appearing for petitioner - Gajendra Singh Rathore and respondent - Smt. Kumudini Pandey have submitted that the controversy involved in these writ petitions is squarely covered by the Division Bench's judgment of this Court dated 4.1.2018 passed in DBCWP No.5976/2017 - M.S. Panwar Vs. Central Administrative Tribunal & Ors. and DBCWP No.10662/2016 - S.P. Tak Vs. the Central Administrative & Ors., wherein this Court has held that the Office Memorandum dated 1.9.1988 issued by the Kendriya Vidhyalaya Sangathan had a specific stipulation that those who desired to continue to be members of the CPF Scheme would have to exercise a positive option to remain as members of the CPF Scheme and that in the (Downloaded on 23/10/2021 at 08:58:36 PM) (7 of 13) [CW-14158/2019] absence of any option they would be deemed to be members of the Pension Scheme.
It is argued that it is an admitted position that petitioner - Gajendra Singh Rathore and respondent - Smt. Kumudini Pandey had never filed any option to remain members of the CPF Scheme and in such circumstances, they would be deemed to be members of the Pension Scheme. It is also argued that the judgment dated 4.1.2018 passed by the Division Bench of this Court in M.S. Panwar and S.P. Tak's case (supra) was challenged by the respondent - Kendriya Vidhyalaya Sangathan before the Hon'ble Supreme Court by way of Special Leave Petition (Civil) No.21776/2019 - The Commissioner Kendriya Vidyalaya Sangathan & Anr. Vs. S.P. Tak, however, the said Special Leave Petition came to be dismissed by the Hon'ble Supreme Court vide order dated 26.7.2019.
Per contra, learned counsel appearing for the respondent - Kendriya Vidhyalaya Sangathan has argued that the CAT has not committed any illegality in passing the order dated 30.8.2019 in OA No.290/00371/2018 preferred by petitioner - Gajendra Singh Rathore and has rightly dismissed the aforesaid OA. It is further argued that the CAT has grossly erred in allowing the OA (Downloaded on 23/10/2021 at 08:58:36 PM) (8 of 13) [CW-14158/2019] No.290/00411/2017 preferred by Smt. Kumudini Pandey vide order dated 11.10.2018 ignoring the fact that from the date of Office Memorandum i.e. 1.9.1988, she continued to be governed by the CPF Scheme and allowed deductions towards CPF contribution with management contribution and for the first time raised objection about the same in the year 2015, therefore, the OA preferred by her before the CAT was ought to be dismissed. It is, thus, prayed that the order dated 11.10.2018 passed by the CAT may kindly be set aside. The Division Bench of this Court in M.S. Panwar and S.P. Tak's case (supra) has held as under :-
"4. Shri S.P.Tak joined service as Physical Education Teacher (P.E.T.) on 01.03.1985. Shri M.S. Panwar joined service as Physical Education Teacher (P.E.T.) on 14.09.1981.
Employer was Kendriya Vidhyalaya Sangathan. At that time a Contributory Provident Fund Scheme (hereinafter referred as 'the CPF Scheme') was in vogue under the Kendriya Vidyalaya Sangathan and thus both became members of the CPF Scheme. On 01.05.1987 the Government of India issued an Office Memorandum, as per which all Central Government employees who were members of the CPF Scheme were given an option to continue to remain members of the CPF Scheme by exercising a positive option to said effect. As per the Office Memorandum those who did not submit any option would be deemed to have switched over to the Pension Scheme.
5. Following the Government of India Memorandum, Kendriya Vidyalaya (Downloaded on 23/10/2021 at 08:58:36 PM) (9 of 13) [CW-14158/2019] Sangathan issued a Memorandum dated 01.09.1988 in pari materia terms.
6. Meaning thereby, employees of the Kendriya Vidyalaya Sangathan who desired to continue to be members of the CPF Scheme had to exercise a positive and affirmative option to continue to be a member of the CPF Scheme. They were not to exercise a positive option to switch over to the Pension Scheme. As per the Office Memorandum, those who did not exercise a positive option to continue to be a member of the CPF Scheme would be deemed to be members of the Pension Scheme.
7. Since the two gentlemen realised in the year 2006 that money deducted from their salary was being credited to the CPF account and not the General Provident Fund account they made representations bringing out the position as afore-noted and highlighting the fact that neither of them exercised the positive option to continue to be members of the CPF Scheme. Their requests were turned down. Both approached the Central Administrative Tribunal.
8. Case of the writ petitioners was pleaded in aforesaid terms.
9. The respondents accepted that the two employees had not submitted any option pursuant to the Circular dated 01.09.1988 had opted for the CPF Scheme, and that, Kendriya Vidhyalaya Sangathan did not have any letter exercising option by the two employees. However, stand taken was that while issuing Form 16 for purposes of showing income tax deducted at source, it was indicated to the two gentlemen that money deducted from their salary was being credited in the CPF account. The Kendriya Vidyalaya Sangathan also relied upon a Circular dated 22.02.2006 as per which employees who had entered service before (Downloaded on 23/10/2021 at 08:58:36 PM) (10 of 13) [CW-14158/2019] 31.12.2003 and were governed by the CPF Scheme were not eligible to switch over to the Pension Scheme. Kendriya Vidhyalaya Sangathan relied upon a decision of the Supreme Court reported in AIR 2014 SC 3655 Rajasthan Rajya Vidhyut Vitran Nigam Ltd. Vs. Dwarka Prasad Koolwal & Ors.
10. The two impugned decisions do not deal with the effect of the two writ petitioners not having exercised a positive option to remain members of the CPF Scheme as was contemplated by the Office Memorandum dated 01.09.1988. The decisions notice the Form 16 issued by the Department to the writ petitioners and holds that the writ petitioners were aware that the Department was treating them as members of the CPF Scheme. Representations made by the two in the Year 2006 were held to be of no consequence in view of the Circular dated 22.02.2006 issued by the Ministry of Human Resource Development. The Tribunal also held that as Supreme Court decision in Dwarka Prasad's casethe two writ petitioners would not be entitled to any relief.
11. As regards the decision of the Supreme Court in Dwarka Prasad's case is concerned, suffice it to state it considered a policy decision taken by Rajasthan Rajya Vidhyut Vitran Nigam Limited as would be evidenced by Paragraph 61 of the decision. The Nigam had required a positive option to be exercised to switchover to the Pension Scheme. The Tribunal over looked that the Office Memorandum dated 01.09.1988 had stipulation to the contrary. The stipulation was that those who desired to continue to be members of the CPF Scheme would have to exercise a positive option to remain as members of the CPF Scheme and that in the absence of an option they would be deemed to be a members of the Pension Scheme.(Downloaded on 23/10/2021 at 08:58:36 PM)
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12. In the decision reported as 2006 (12) SCC 53 Union of India& Anr. Vs. S.L. Verma & Ors. the Supreme Court has taken the view as propounded by the writ petitioners.
13. Thus, in that view of the matter the writ petitioners ought to have succeeded.
14. But since the Tribunal has looked into the Income Tax Return Form 16 as evidence of petitioners knowledge that they were being treated as members of the CPF Scheme, suffice it to state that a Government Servant and also employees of Kendriya Vidyalaya Sangathan who are members of the Pension Scheme have deductions effected under the General Provident Fund account and thus said deductions made, if wrongly credited to the General Provident Fund, would not disentitle the petitioners to the benefit of the Office Memorandum dated 01.05.1987.
15. As regards the Circular dated 22.02.2006, it concerns those employees who had chosen to be members of the CPF Scheme and post 01.01.2004 wanted to shift over to the Pension Scheme. The Office Memorandum prohibits the same for the reason w.e.f. 01.01.2004 the Pension Scheme has not been made applicable by the Central Government to the employees who entered service after 01.01.2004.
16. The writ petitions are allowed. Impugned decisions passed by the Central Administrative Tribunal are quashed and theOriginal Applications filed by the writ petitioners are allowed, in that, the respondents shall treat the petitioners as members of the CPF Scheme."
(Emphasis supplied) (Downloaded on 23/10/2021 at 08:58:36 PM) (12 of 13) [CW-14158/2019] Admittedly, petitioner - Gajendra Singh Rathore and respondent - Smt. Kumudini Pandey have not submitted any option to remain under the CPF Scheme pursuant to the Office Memorandum issued by the Kendriya Vidhyalaya Sangathan on 1.9.1988 and in such circumstances, as per the stipulation given under the aforesaid Office Memorandum, they would be deemed to be the members of the Pension Scheme.
We are of the view that the controversy involved in these writ petitions is squarely covered by the decision of this Court rendered in the case of M.S. Panwar and S.P. Tak (supra).
Resultantly, the DBCWP No.2815/2019 preferred by petitioner - The Commissioner, Kendriya Vidhyalaya Sangathan & Ors. is dismissed and the order dated 11.10.2018 passed by the CAT in OA No.290/00411/2017 is affirmed, however, the DBCWP No.14158/2019 preferred by petitioner - Gajendra Singh Rathore is herePby allowed. The impugned order dated 30.8.2019 passed in OA No.290/00371/2018 is set aside and the respondents are directed to convert petitioner - Gajendra Singh Rathore as pensioner in the GPF Scheme and to pay him the revised pension including arrears for which he became eligible by such conversion. It is made clear (Downloaded on 23/10/2021 at 08:58:36 PM) (13 of 13) [CW-14158/2019] that petitioner - Gajendra Singh Rathore shall refund the amount received by him towards CPF Scheme with 9% per annum interest from the date when he received till the date of payment. It is also made clear that arrears of pension payable to petitioner - Gajendra Singh Rathore under GPF Scheme may be adjusted towards refund of CPF amounts received by him with interest. In the event of not realizing the entire amount, the remaining portion amount may be refunded by petitioner - Gajendra Singh Rathore.
(SUDESH BANSAL),J (VIJAY BISHNOI),J 41-42 ms rathore (Downloaded on 23/10/2021 at 08:58:36 PM) Powered by TCPDF (www.tcpdf.org)