Central Administrative Tribunal - Mumbai
Laxmi Ramnath vs D/O Atomic Energy on 20 February, 2025
1 OA No.269/2019
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI
ORIGINAL APPLICATION No.269 OF 2019
Dated this Thursday, the 20th day of February, 2025
CORAM : HON'BLE MR. SHRI KRISHNA, MEMBER (A)
HON'BLE MR. UMESH GAJANKUSH, MEMBER (J)
Smt. Laxmi Ramnath, Aged 61 years,
lastly working as Deputy Controller of Accounts,
Heavy Water Board (Central Office), "O" Floor,
Accounts Wing, Vikram Sarabai Bhavan,
Anushakti Nagar, Mumbai 400 085 and
presently residing at Block No.10, Kartikeya CHS,
Hanuman Road, Vile Parle East, Mumbai 400 057. - Applicant
(By Advocate Shri Ramesh Ramamurthy)
Versus
1. Union of India, through the Secretary,
Department of Atomic Energy, Government of India,
Anushakti Bhavan, C.S.M. Marg, Appolo Bundar,
Near Gateway of India, Colaba, Mumbai 400 005.
2. The Director, Bhabha Atomic Research Centre,
Anushakti Nagar, Trombay, Mumbai 400 085.
3. The Controller, Bhabha Atomic Research Centre,
Anushakti Nagar, Trombay, Mumbai 400 085.
4. The Administrative Officer - III, Heavy Water Board,
Vikram Sarabai Bhavan, Anushakti Nagar,
Mumbai 400 094. - Respondents
(By Advocate Shri A.A.Garge)
Reserved on 15.01.2025
Pronounced on 20.02.2025
2 OA No.269/2019
ORDER
Per : Umesh Gajankush, Member (J)
The present Original Application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 challenging the action of the respondents in non-treating the applicant as a deemed pension optee on her superannuation and for subsequently relief flowing therefrom.
2. The brief facts of the case stated in the Original Application are that the applicant was appointed vide order dated 16.06.1980 on the post of Upper Division Clerk (for short 'UDC') in Bhabha Atomic Research Centre (for short 'BARC') and joined on 05.07.1980. It is stated that in the Department of Atomic Energy (for short 'DAE'), the President of India had issued orders on 05.03.1959 wherein it was mentioned that all non-pensionary Scientific, Technical and Administrative employees in the Department of Atomic Energy should be admitted to the benefits of Contributory Provident Fund Rules as amended from time to time.
2(a). Further, the Department of Atomic Energy issued another OM dated 18.12.1967 with the sanction and approval of the President of India on the subject of grant of benefits under the Contributory Provident Fund (for short 'CPF') and Pension Scheme to the substantive holders of Permanent Administrative General 3 OA No.269/2019 Maintenance and Auxiliary post in the Department of Atomic Energy. In the Office Memorandum, it was specifically mentioned that the persons holding the above-mentioned post on confirmation in permanent post will have the option to continue in Contributory Provident Fund or to elect pensionary benefits in terms of Rule 38 of the CPF Rules and which option was required to be exercised within three months of confirmation failing which the person was deemed to have exercised his option in favour of the pensionary benefits. 2(b). Another Office Memorandum dated 18.12.1967 which is an order issued with the sanction and approval of the President of India, is still in force as on date and there is no presidential order issued cancelling or withdrawing the said office memorandum dated 18.12.1967. It is stated that this OM, in fact, permitted a deemed pension option from December, 1967 and more importantly by this Office Memorandum, the benefits which were granted were extended to Scientific and Technical Staff in the Department of Atomic Energy.
2(c). It is stated that the Office Memorandum dated 18.12.1967, the President of India classified all the Permanent Administrative General Maintenance and Auxiliary post in the Department of Atomic Energy as pensionable and allowed the option as mentioned in 4 OA No.269/2019 Clauses (a) and (c) of the said memorandum wherein an employee on confirmation had to opt if he wanted to continue under the CPF Scheme failing which he was deemed to have come over to the pension scheme. This is in fact in the nature of a rule made by the President of India in so far as the employees of the Department of Atomic Energy is concerned.
2(d). It is further stated that all the employees who were joining the Department of Atomic Energy prior to 01.01.1986 were always aware that they have to in the initial stage join the CPF Scheme in terms of the Presidential letter dated 05.03.1959 and on confirmation they would be entitled to get pensionary benefits in terms of the Office Memorandum dated 18.12.1967 unless they opt to continue under the CPF Scheme. Therefore, the system of deemed pension optee was in force from December, 1967 which is 20 years prior to the Office Memorandum dated 01.05.1987 issued by the Department of Pension and Pensioners Welfare, Government of India after the recommendations of the IV Central Pay Commission. 2(e). The Department of Pension and Pensioners Welfare has issued Office Memorandum dated 01.05.1987 with cut off date for giving option up to 30.09.1987 and Clause 3.2 of the said memorandum provides that after the cut off date, if the employee is 5 OA No.269/2019 not opted for CPF then such employee is deemed to have come over to the Pension Scheme by way of deeming provision. 2(f). It is stated that on the date of issue of Pension and Pensioners Welfare OM, there was no clarity and clarification from the Department of Atomic Energy as to whether the said Office Memorandum applied to the employees of Department of Atomic Energy at all since Clause 6.3 excluded Department of Atomic Energy staff insofar as Scientific and Technical Staffs are concerned. 2(g). The Office Memorandum dated 23.09.1987 (Annexure A-9) was issued by the Department of Atomic Energy, Government of India by which the cut off date to exercise the option under CPF Scheme was extended up to 30.12.1987 under which the applicant opted to continue in this CPF Scheme on 23.11.1987. It is stated that the Member Finance was not the Competent Authority to clarify the issue whether the said Office Memorandum dated 01.05.1987 of the Department of Pension and Pensioners Welfare was applicable to employees of the Department of Atomic Energy. Further, it is stated that the matter could have been referred to the Department of Pension and Pensioner Welfare in first place or the Government of India should have been consulted in the matter and more importantly only the President of India could have taken a decision on the said 6 OA No.269/2019 issue.
2(h). It is stated that the entire decision regarding the validity of the approval given by the Member Finance or the clarification under Office Memorandum dated 23.09.1987 was never cleared in the light of the Presidential order dated 18.12.1987 and the CPF Rules and Rule 38 therein in particular as to the necessity of giving option and this fluid state of affairs the applicant under a misconception of facts and without being given any clarity on the issue by the respondents had opted for retaining CPF benefits under the Office Memorandum dated 01.05.1987 by her option given on 23.11.1987. 2(i). It is stated that after the cut off dates of 30.09.1987 any option given prior to the month of December, 1987 was not valid since she had become a deemed pension optee prior to that date and her giving of option cannot reverse the status as held by the Hon'ble Supreme Court of India in the matter of Union of India and Another Vs. S.L.Verma and others reported in (2006) 12 SCC 53 decided on 28.11.2006. Therefore, the applicant has submitted representation dated 03.08.2007 with a prayer for treating her to be as deemed optee for pension. The aforesaid representation was followed by the representations dated 23.07.2014 and 19.07.2017. in the representation dated 19.07.2017, it was specifically mentioned 7 OA No.269/2019 that the applicant was retiring on 31.07.2017 and, therefore, an expeditious action was requested. However, no steps have been taken, therefore, another representation dated 27.07.2017 was submitted in which it has been stated "I undertake to refund the entire Government Contribution paid to me along with interest applicable from the date of drawal to the date of remittance". Thereafter also, representation dated 09.04.2019 was filed. However, no action has been taken. Therefore, the present OA was filed. 2(j). By the filing of the Original Application, the applicant has placed reliance on the order passed by the Central Administrative Tribunal, Madras Bench in OA No.1766, 1769 of 2013 and 244 of 2014 decided on 31.03.2015 in case of S.Subbiah & Others Vs. Union of India and others and other connected matters. It is stated that the applicant of said Original Application were also the members of the Department of Atomic Energy and the Coordinate Bench of Central Administrative Tribunal, Madras allowed the Original Application by setting aside the orders passed by the respondents by rejecting the claim of the said applicant. Further Tribunal has directed the respondents to declare the applicants as having come under the pension scheme as deemed pensioners and all the applicants are entitled for all the consequential benefits flowing from 8 OA No.269/2019 being deemed pensioners under the Pension Scheme. 2(k). It is stated that the aforesaid order of the Tribunal of Madras Bench was the subject matter of the challenge before the Hon'ble High Court of Madras and vide order dated 05.01.2017, the Writ Petition filed by the Union of India and others Vs. S.Subbiah & others was dismissed. The applicant further relied on the judgment passed by the Hon'ble High Court of Mumbai in Writ Petition No.1331/2017 decided on 17.01.2019 in the case of Amita Ajit Desai & Others Vs. Union of India and others. Further, the order passed by the Hon'ble High Court of Delhi in case of Dr. R.N.Virmani and others Vs. University of Delhi and Another and other connected matters in Writ Petition (C) No.1490/2006 to 1507/2006 and CM No.5186/2006, 15911/2008, 12350/2010 and 2309/2011 decided on 30.04.2014 was relied. On this basis, it is prayed that the applicant be declared as deemed pension optee on her superannuation.
3. After notice, the official respondents have filed their reply and contested the OA. Although the factum of appointment on the post of UDC on 03.07.1980 in Bhabha Atomic Research Centre under the Department of Atomic Energy, Government of India and promotions from time to time in her service and was posting in various units of 9 OA No.269/2019 Department of Atomic Energy viz. BARC, HWP etc. is not disputed. The applicant's representations dated 03.08.2007, 23.07.2014, 19.07.2017, 27.07.2017 and 09.04.2018 for treating her as a deemed pension optee was also not disputed. However, it is stated that the OM dated 01.05.1987 brought all the 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 unless those who specifically opted to retain CPF Scheme on or before 30.09.1987. Since, adequate time was not available to inform the employees and obtain their options, Department of Atomic Energy vide OM dated 23.09.1987 had extended the date for exercising the option up to 30.12.1987 with the concurrence of Member for Finance as the applicant has already exercised an option on 23.11.1987 i.e. within the extended time by Department of Atomic Energy up to 30.12.1987 to retain herself in the CPF Scheme, her request could not be agreed to by the Department. Therefore, on the basis of the reply, official respondents have prayed for dismissal of the OA.
4. Thereafter, rejoinder and sur-rejoinder were also filed by the parties.
5. The learned counsel for the applicant vehemently argued that 10 OA No.269/2019 as per OM dated 01.05.1987 clause 3.2 provides for submitting the option for continuation under the CPF Scheme was up to 30.09.1987 and if employee did not submit his or her option for continuation under the CPF Scheme then as per clause 3.2 of the OM and deeming clause such employees are covered under the Pension Scheme.
5(a). In the present case also prior to cut off date i.e. 30.09.1987, no option was submitted by the applicant for continuation under the CPF Scheme and, therefore, the applicant is entitled for benefit of deeming clause. It is also vehemently argued that although the Department of Atomic Energy vide Office Memorandum dated 20.09.1987 has extended the cut off date for exercising the option up to 30.12.1987 and prior to that the applicant has submitted her option to continue under CPF Scheme on 23.11.1987 but the fact remains that the Member Finance has no authority or jurisdiction to change the cut off date mentioned in OM dated 01.05.1987 as the aforesaid OM dated 01.05.1987 was issued by the Department of Personnel, Public Grievances and Pensions and Department of Pension and Pensioners Welfare.
5(b). During the course of arguments, the learned counsel has relied upon the order passed by the Madras Bench of this Tribunal in the 11 OA No.269/2019 case of S.Subbiah (supra) & other cases which were affirmed by the Hon'ble High Court of Madras vide order dated 05.01.2017. He has also relied upon the order passed by the Hon'ble High Court of Bombay in case of Amita Ajit Desai (supra) and Dr. R.N.Virmani (supra). It is further submitted that the order passed by the Hon'ble Madras High Court in the case of S.Subbiah (supra) was the subject matter of challenge before the Hon'ble Supreme Court in SLP (C) No.028825-028827 of 2017 in the case of Union of India Vs. S.Subbiah and others which was decided on 14.02.2023 and the Special Leave Petition filed by the Union of India were dismissed. 5(c). It is submitted that the present applicant is also similarly situated employee and, therefore, eligible and entitle for same benefit for declaring herself to be deemed optee under the same scheme with all consequential benefits.
5(d). On the other hand, Shri A.A.Garge, learned counsel for the respondents with same vehemence objected to the contention raised by the applicant. It is stated that before the Hon'ble High Court of Madras, the said applicants have challenged the circular dated 18.09.1987 by which the cut off date was extended till 30.12.1987, whereas in the present case, no such challenge has been made and, therefore, the applicant is not entitled for benefit of 12 OA No.269/2019 the said judgment. While drawing attention of this Tribunal towards proceedings of this Tribunal dated 25.02.2020, it was submitted that the OA is still to be heard on the question of maintainability. It is submitted that as per the OM dated 23.09.1987 since the applicant had exercised her option for continuation under the CPF Scheme on 23.11.1987 and, therefore, she has no right to claim the benefit of clause 3.2 of OM dated 01.05.1987.
5(e). It is further contended that clause 3.6 of the OM dated 01.05.1987 clearly provides that the option once exercised shall be final. Therefore, according to the learned counsel for the respondents, the case of the present applicant is distinguishable and the OA is liable to be dismissed.
5(f). During the course of the arguments, the learned counsel for the respondents placed reliance on the order passed by this Tribunal (Mumbai Bench) in OA No.808/2017 and other connected cases decided on 30.07.2024 in the case of Deoram V. Bavbande Vs. Union of India and others and submitted that this Tribunal by the aforesaid order dismissed the Original Application of the employees of BARC by detailed order and, therefore, the applicant being the employee of BARC is not entitled for any relief and the OA is liable to be dismissed.
13 OA No.269/2019
6. We have heard the learned counsels for the parties and perused the pleadings and document available on record.
7. In the present case, appointment of applicant on the basis of UDC on 03.07.1980 and promotion on various posts in different units of Department of Atomic Energy is not disputed. It is also not in dispute that OM dated 01.05.1987 which prescribes cut off date of submission of option to continue in CPF Scheme was 30.09.1987 and clause 3.2 specifically provides that if no option is received by the Head of the Office by the above date the employees will be deemed to have come over to the Pension Scheme. It is true that the Department of Atomic Energy had issued OM dated 23.09.1987 (Annexure A-19) by which the cut off date was extended for option up to 30.12.1987 and prior to aforesaid date, applicant has exercised her option to continue CPF Scheme on 23.11.1987. Therefore, question arises for consideration on the basis of option dated 23.11.1987, whether applicant is a Member of CPF Scheme or prior to cut off date fixed in OM dated 01.05.1987 i.e. 30.09.1987 since no option was exercised by the applicant for continuation under the CPF Scheme, therefore, in view of the deeming clause, she would be declared as a pension optee on her superannuation.
8. In similar set of facts, the other employees of the respondent 14 OA No.269/2019 department have challenged their rejection before the Madras Bench of this Tribunal by filing Original Application which was decided on 31.03.2015 in bunch of cases i.e. S.Subbiah and others (supra) and the Coordinate Bench of this Tribunal has taken into consideration the aforesaid question. The relevant paragraph of the said order are reproduced herein below :
"7. The short question involved in all these applications is as to whether the employees who have not opted to remain in the CPF scheme by the cut-off date i.e. 30.09.1987 fixed by the DOPT in O.M.dt.01.05.1987, has to be treated as deemed to have opted for the Pension Scheme or by exercising such option to CPF scheme at a later date, within the extended date, they continue to remain in the CPF Scheme.
8. It is not in dispute that none of the applicants nave exercised the option to remain in CPF scheme before the cut- off date. But however, when the period was extended, they have chosen to exercise their option and later on submitted their representations to treat them to remain in the Pension Scheme. The DOPT issued O.M. on 01.05.1987 on the basis of the Fourth Pay Commission's recommendation, wherein it is clearly stated in para 3.2 to the effect that an employee to continue under CPF Scheme should exercise his option and convey the same to the concerned Head of the Office by 30.09.1987 in the form enclosed. In the said para, it is further mentioned that if no option is received by the Head of Office by the above date, the employees would be deemed to have come over to the Pension Scheme.
9. A similar issue was dealt with by the Apex Court in its decision rendered in UOI & Anr. Vs. S.L.Verma & Ors dt.28.11.2006. The Supreme Court held therein that inasmuch as the employees have not chosen to give their option before the cut-off date, a legal fiction is created whereby they have become the members of the Pension Scheme. The operative portion of the judgment is extracted as hereunder :
"The Central Government, in our opinion, proceeded on a basic mis-conception. By reason of the said Office Memorandum dated 1.5.1987 a legal fiction was created.15 OA No.269/2019
Only when an employee consciously opted for to continue with the CPF Scheme, he would not become a member of the Pension Scheme. It is not disputed that the said respondents did not give their options by 30.9.1987. In that view of the matter respondent Nos. 1 to 13 in view of the legal fiction created, became members of the Pension Scheme. Once they became the member of the Pension Scheme, Regulation 16 of the Bureau of Indian Standards (Terms and Condition of Service of Employees Regulation, 1988) had become ipso-facto applicable in their case also. It may be that they had made an option to continue with the CPF Scheme at a later stage but if by reason of the legal fiction created, they became members of the Pension Scheme, the question of their reverting to the CPF would not arise. The respondent No.14 has correctly arrived at a conclusion that an anomaly would be created and in fact the said purported option on the part of respondent No.1 to 13 was illegal when a request was made by respondent No.14 to the Union of India for grant of approval so that all those employees shall come within the purview of the Pension Scheme. In our opinion, the Ministry of Finance proceeded on a wrong premise that the Pension Scheme was not in existence and it was a new one. Two legal fictions, as noticed herein before, were created, one by reason of the memorandum, and another by reason of the acceptance of the recommendations of the Fourth Central Pay Commission with effect from 1.1.1986. In terms of such legal fictions, it will bear repetition to state, the respondent nos.1 to 13 would be deemed to have switched over to the Pension Scheme, which a fortiori would mean that they no longer remained in the CPF scheme."
The above decision squarely applies to the case on hand.
10. Similar order was passed by the Delhi High Court in W.P. (C) No.1490/2006-1507/2006, etc., Dr. R.N. Virmani and Ors. Vs. University of Delhi and Anr, etc., cases, in order dt.30.04.2014. While passing the order the Delhi High Court has observed as follows:
14.2 A perusal of the aforesaid form would show that the only option which had to be exercised was with regard to continuation by an employee under the CPF 16 OA No.269/2019 Scheme. The employee was not required to submit any form If, he or she wanted to be covered under the Pension Scheme, as that was automatic, in view of the deeming provision incorporated in clause 3.1 and 3.2 of O M. dated 01.05.1987. This is precisely the reasoning given by the Supreme Court in no uncertain terms in S.L.Verma's case. The relevant observations of the Supreme Court are contained in paragraphs 4 and 7, which for the sake of convenience, are extracted herein below.
"..4. The Central Government as also the respondent No.14-Bureau of Indian Standards have proceeded on some legal misconception that it was obligatory on the part of the said employees to give a positive option for the said purpose. For the first time on 2.2.1999, the respondent No.14 requested the Union of India for grant of another chance to the respondents to switch over to pension scheme stating that they purported to have exercised their option for CPF Scheme on the cut-off date.
7. The Central Government, in our opinion, proceeded on a basic misconception. By reason of the said Office Memorandum dated 1.5.1987 a legal friction was created. Only when an employee consciously opted for to continue with the CPP Scheme, he would not become a member of the Pension Scheme. It is not disputed that the said respondents did not give their options by 30.9.1987. In that view of the matter respondent Nos. 1 to 13 in view of the legal fiction created, became members of the Pension Scheme. Once they became the member of the Pension Scheme, Regulation 16 of the Bureau of Indian Standards (Terms and Conditions of Service of Employees Regulations, 1988) had become ipso facto applicable in their case also. It may be that they had made an option to continue with the CPF Scheme at a later stage but if by reason of the legal fiction created, they became members of the Pension Scheme, the question of their reverting to the CPF would not arise. The respondent No.14 has correctly arrived at a 17 OA No.269/2019 conclusion that an anomaly would be created and in fact the said purported option on the part of respondent No.1 to 13 was illegal when a request was made by respondent No.14 to the Union of India for grant of approval so that all those employees shall come within the purview of the Pension Scheme. In our opinion, the Ministry of Finance proceeded on a wrong premise that the Pension Scheme was not in existence and it was a new one. Two legal frictions, as noticed hereinbefore, were created, one by reason of the memorandum, and another by reason of the acceptance of the recommendations of the Fourth Central Pay Commission, with effect from 1.1.1986. In terms of such legal fictions, it will bear repetition to state, the respondent nos. 1 to 13 would be deemed to have switched over to the pension scheme, which a fortiori would mean that they no longer remained in the CPF scheme..."
14.5 Clearly, the Pension Scheme as reflected in O.M. dated 01.05.1987 and the facts under consideration, in the present case, are different. There is no requirement for a positive option being exercised for conversion to Pension Scheme. On the cut-off date i.e., 30.09.1987, employees by a deeming legal fiction got covered under the Pension Scheme, unless they chose to exercise a positive option to continue with the CPF Scheme by 30.09.1987.
16. The argument raised before me by the respondents, which veered towards approbation, was based on the fact that petitioners had continued to contribute under the CPF Scheme. This submission would not cut much ice with me, having regard to the plain terms of O.M. dated 01.05.1987. If, the cover under the Pension Scheme, gets triggered with effect from 30.09.1987, the contribution by an employee and its receipt by the employer clearly proceeds on a misconception of the provisions of O.Μ. dated 01.05.1987. As a matter of fact, this very argument was repelled by the Supreme Court, in S.L. Verma's case, and I think, for good reason. Consequently, there is no room for entertaining such an argument. The relevant observations made in paragraph 7, specific to this aspect, are, once again, 18 OA No.269/2019 extracted hereinafter.
"..It may be right they had made an option to continue with the CPF Scheme at a later stage but if by reason of the legal fiction created, they became members of the Pension Scheme, the question of their reverting to the CPF would not arise...".
18. Having regard to the dicta of the Supreme Court in DS Nakara's case that grant of pension is a measure of socio-economic justice which, provides economic security in the evening of one's life, and that, this discernible purpose should inform the interpretive process involved in any such scheme, and therefore, should receive liberal construction, I am inclined to hold that the petitioners would stand covered under the Pension Scheme. In my view, this conclusion accords with the decision of the Supreme Court in S.L. Verma's case and the stand taken by the UGC with regard to the interpretation placed on clause 3.2 of O.M. dated 01.05.1987."
11. A careful reading of the order of Delhi High Court and the dictum of the Supreme Court makes it clear that when an employee consciously opted for to continue with CPF scheme, within the cut-off date, he would not become the member of the pension scheme and otherwise by virtue of legal fiction created, the employee become the member of the pension scheme. Hence, the applicants are able to be granted relief.
12. For the reasons stated above, all the applications are allowed and the impugned orders passed by the respondents wherein the requests of the applicants are rejected, are set aside. There will be a consequential direction to the respondents to declare the applicants as having come under the pension scheme as deemed pensioners. All the applicants are entitled for all the consequential benefits flowing from being deemed pensioners under the Pension Scheme. The above exercise shall be completed within four weeks from the date of receipt of copy of this order. There will be no order as to costs."
9. The aforesaid order was the subject matter of challenge before the Madras High Court at the instance of Union of India and similar 19 OA No.269/2019 argument were raised by the learned counsel of Union of India before the Hon'ble High Court of Madras in respect of exercise of option as per OM dated 23.11.1987 prior to cut off date of 30.12.1987 which has been raised by the learned counsel for the respondent in the present case and the Hon'ble Madras High Court was pleased to observe as under :
"8. The petitioners assailed the order passed by the Tribunal on the ground that once an option had been exercised by the employees concerned albeit during the extended period of time granted for exercising option, the employees cannot go back on their option and that too after several years and claim for pension under the Pension Scheme.
9. Mr. V.P.Sengottuvel learned counsel appearing for the petitioners strenuously contended that vide communications dated 1.5.1987 and 18.9.1987, the employees were given option to remain in CPF Scheme till 30.12.1987, it was followed by another Official Memorandum dated 7.7.2009 stating that such exercise option up till 30.12.1987, cannot be held to be invalid and the employees of the Department Atomic Energy are to be treated separately and cannot be treated as that of the Central Government employees in view of the fact that the original Office Memorandum providing option, had been belatedly circulated to the said Department. By this submission, Mr.Sengottuvel attempted to draw a distinction between the employees of Department of Autonomic Energy and other counterparts of the Central Government. According to him, the learned Tribunal overlooked these crucial aspects and followed the decision of the Hon'ble Supreme Court and the Delhi High Court cited supra. In any event, according to the learned counsel, once admittedly the employees having exercised option to remain in CPF Scheme, no relief could be granted to them towards pension as that would defeat the very purpose of the original Official Memorandum issued providing for option.
10. Refuting the contentions of the learned counsel appearing for the petitioners, Shri Balan Haridass learned counsel appearing for the respondents would contend that the extension of the cut of date from 30.9.1987 to 30.12.1987 had no sanctity 20 OA No.269/2019 in law since the same was not authorized. In support of his contention, Shri Balan Haridass had drawn our attention to the communication dated 24.10.2007 issued by the Ministry of Personnel, P.G., and Pensions, Department of Pension and Pensioners' Welfare, in which, it is mentioned that the power to extend the date has not been delegated by the Department to any other authority. Therefore, according to him, the exercise of option by his clients, namely, the respondent employees cannot be held against them since such exercise is not a valid exercise in the eye of law.
11. Shri Balan Haridass also contended that the learned Tribunal after considering the facts and circumstances, had rightly concluded in favour of the respondent employees and therefore, the impugned order of the Tribunal does not warrant any interference from this Court.
12. In addition to the factual submission, the learned counsel has taken us through the decision of the Delhi High Court in the matter of "Smt.Shashi Kiran and others versus Union of India and others" etc., reported in 2016 SCC OnLine Del 4819"
wherein, the Delhi High Court has dealt with the issue in extenso and finally held that even if an option exercised by the employees, they would still be entitled to request for change of option to pension scheme in view of subsequent developments and change in socio and economic scenario. In order to appreciate the arguments of Shri Balan Haridass, relevant paragraphs of the decision which would be helpful in deciding the issue involved in the writ petitions, are extracted hereunder:
"22. This court is of the opinion that no infirmity can be found with the approach or reasoning of the learned Single Judge, in allowing the respondents' petitions. The learned Single Judge made a factual analysis, in this category of teaching staff. The chart, prepared for the purpose, and extracted at Para 3.1 of the judgment in this batch (N.C.Bakshi v Union of India WP 5310/2010) shows that all the employees opted for the CPF benefits, after the cut-off date. It was because of this and the expressed stand of the UGC- and the University that the learned Single Judge concluded that notwithstanding the so called option, exercised in terms of the extensions given, the writ petitioners could not be denied the benefit of the Pension Scheme because they were deemed, by the OM of 01.05.1987 to have opted for it, by default. Having regard to these 21 OA No.269/2019 facts, the appellants could not have urged that the benefit of the Pension Scheme should have been denied to these class of petitioners/teaching staff. Therefore, we are of opinion that there is no infirmity with the impugned judgment of the learned Single Judge. The University's appeals, therefore, deserve to fail.
"23. The last category is the Shashi Kiran batch. Here, the University staff, who constituted the writ petitioners, had consciously opted for the CPF benefits. Their grievance was that of discriminatory exclusion. They had approached the court, contending that when they sought for options, the respondents refused to extend it, saying that the previous extensions had ended and later, that the UGC and the Central Government had refused to grant approval.
"24. This court noticed earlier that relief was granted in the Virmani batch of petitions, by a separate judgment though delivered on the same day. In that judgment, the sequence of events which led to the extensions and how the respondents (i.e UGC and Union of India) were aware of it, was noticed. The said portion of the judgment is relevant and is extracted below:
"(i). that the option for employees for change over from CPF to Pension Scheme was available only upto 30.09.1987;
(ii). the revised options given to employees to return to Pension Scheme were "absolutely incorrect and against the Rules";
(iii). the fact that 30.09.1987 was the cut-off date was conveyed by the UGC to the University of Delhi vide its letter dated 25.05.1999;
(iv). the UGC vide its communication dated 08.08.2001 had requested the GOI through Ministry of Human Resources Development (in short MHRD) to consider extension of the scheme of conversion, which was, however, not agreed to as reflected in GOI's letter dated 27.09.2001. The stand of the GOI as reflected in the said communication was based on its earlier 22 OA No.269/2019 communication dated 19.06.2000 which, adverted to the fact that the matter had been examined by the Ministry of Finance, GOI which had, in turn, advised against grant of another option for change over from CPF to Pension Scheme;
(v) In September 2002, letters were exchanged between the UGC and MHRD, GOI as also between University of Delhi and UGC.
(v)(a) To be noted, letters exchanged amongst the entities referred to above have been appended with the counter affidavit of UGC.
(v)(a)(i) The letters exchanged between the UGC and MHRD, GOI are dated: 03.09.2002, 24.10.2002, 26.03.2007, 28.03.2007, 11.05.2007, 26.09.2008,
10.09.2008;
(v)(a)(ii). In so far as correspondences exchanged between University of Delhi and UGC are concerned, these are dated:28.02.2003, 23.09.2003, 21.12.2006.
(v)(a)(iii). Apart from the above, there is a reference to representations by teachers, who were employed with University of Delhi and colleges affiliated to it, prior to 01.01.1986.
(v)(b). The sum and substance of the correspondences referred to above is, that while UGC was sympathetic to extension of the date of conversion till at least 31.03.1998, it did not want to take the burden of pension liability of the employees if, GOI was not agreeable to the extension of date beyond 30.09.1987. (see letter dated 03.09.2002). As a matter of fact, UGC sought instructions in the matter from the GOI, which vide its letter dated 24.10.2002, advised UGC, being the funding agency for Central Universities and deemed Universities, to take a decision at its end without referring the matter to MHRD.
(v)(b)(i). The UGC, therefore, on its part vide its communication dated 23.09.2003, informed University of Delhi that it could not grant, a retrospective, one time change over from CPF Scheme to Pension Scheme.
23 OA No.269/2019
(v)(b)(ii). What interestingly, though, emerges from the correspondence, is that, since several institutions, such as, IIT Kanpur and other autonomous institutions such as, the Department of Atomic Energy and CSIR had extended the date of switch over qua its employees - UGC's request that the conversion date be extended till 31.12.2003, as a new Pension Scheme had kicked-in vis-`-vis persons joining the University on or after 01.01.2004, was declined by MHRD. (see letter dated 26.03.2007)."
"23. The discrimination complained of by the appellants in Shashi Kiran's batch of cases is that even though the deadline of 30.09.1987 was not deemed sacrosanct by the University (and through omission and, therefore, tacit approval, by UGC and the Central Government) a large number of employees who had not opted either way were allowed to switch-over to the Pension Scheme through options given over 14 years, by 12 different extensions. Given that the ground realities had undergone a sea change, the CPF scheme was unfeasible and had lost viability; on the other hand, the Pension Scheme was more beneficial. These appellants argue that in such a situation, when 2469 staff members opted for pension on various dates during these extensions, when they wished to do so, the respondents unfairly refused the benefit.
"26. The learned Single Judge's view has some logic in it because the University refused the Pension Scheme benefits in case of those who had chosen it:
in Virmani's case, by default (i.e. no option, which meant deemed option) and in the other cases, because of the option for CPF, given after the date prescribed. While the logic for directing relief in the first category (Virmani) is sound, the second category was given relief by ignoring that they consciously wished to switch-over to the CPF scheme, but after the cut-off date. Thus, the learned Single Judge ignored the conscious choice made only on the ground that the choice or option for CPF was after the cut-off date. Now, this has led to a peculiar situation where those who opted for CPF benefits have been divided into two categories: one, who opted before the cut-off date and two, those who opted after the cut-off date. The latter have been given relief. That is also the basis for 24 OA No.269/2019 refusing relief to the former, who are appellants in this batch."
13. From the above, it could be seen that even the employees who have originally opted to remain in CPF Scheme and switched over to Pension Scheme because the same was being more beneficial to them, the Court has held that non-grant of better benefits by way of pension and denying the same to one set of employees per se discriminatory notwithstanding the option exercised by the employees to remain in CPF scheme which was given during the extended period of time, are entitled to seek pension under the Pension Scheme. The Delhi High Court has adverted to several decisions of the Hon'ble Supreme Court and other High Courts and passed a detailed judgment in a batch of appeals. The issues raised before the Delhi High Court were identical and the Court has answered the issues in favour of the employees.
14. This Court, after hearing the arguments on either side, gave its anxious consideration with reference to the pleadings and the decisions of the Hon'ble Supreme Court and the decision of the Delhi High Court. The natural conclusion emanated from our anxious consideration will only lead to hold that the respondent employees despite their option to remain in CPF Scheme which was given during the extended period of time, are entitled to seek pension under the Pension Scheme. Firstly, the said option given during the time of extended period has no sanctity in law. Secondly, such option given by the employees cannot be held against them in view of the fact that several similarly placed employees of the Central Government were allowed to switch over to the CPF Scheme, meaning that no seriousness attached to the cut of date prescribed originally by the Official Memorandum dated 1.5.1987. If these employees were denied pension in the facts and circumstances, it would certainly amount to discrimination, which per se constitutionally impermissible. Moreover, the decision of the Delhi High Court cited supra and the contentions which were extracted above, would unequivocally supported the claim of the respondent employees notwithstanding the fact that whether they exercised their option or not.
15. In the above circumstances, the order passed by the Tribunal allowing the claim of the respondent employees cannot be faulted with, although the learned Tribunal did not elaborate reasons in support of its conclusion. The conclusion reached by the Tribunal, in our opinion, would not suffer from any infirmity 25 OA No.269/2019 or irregularity warranting interference of this Court."
10. The aforesaid order further challenged by the Union of India before the Hon'ble Supreme Court of India in the case of Union of India Vs. S.Subbiah which was dismissed on 14.02.2023 with the following observations :
"SLP (C) Nos.288285-28827/2017 & Diary No(s).20789/2018
1. Delay condoned.
2. We are not inclined to interfere with the impugned judgment
(s) and order (s). The Special Leave Petition are, accordingly, dismissed.
3. Pending applications (s), if any, shall stand disposed of.
TP (C) No.259/2020, 227/2020, 264/2020 and 232/2020 The transfer petitions are dismissed as withdrawn, in terms of the signed order."
11. In the aforesaid case also the said applicants were the employees of the Department of Atomic Energy and who had exercised their option in the extended period. Therefore, the case of the present applicant is similar and, therefore, the applicant is entitled for the benefit of the order passed by the Madras Bench of this Tribunal which was affirmed by the Hon'ble High Court of Madras and the Hon'ble Supreme Court.
12. So far as the contention of the learned counsel for the respondents in the present case is that the applicant has not made 26 OA No.269/2019 challenge to OM dated 23.09.1987 by which cut off date was extended is concerned, firstly, the order of CAT Madras Bench is affirmed up to the Hon'ble Supreme Court and secondly, in the Original Application a specific averments are made by the applicant that the Member Finance was not Competent Authority to clarify or extend the cut off date. Under these circumstances, the argument of the learned counsel for the respondents is not tenable.
13. Further, it is contended by the respondents that this Tribunal vide proceedings dated 25.02.2020 kept issue of maintainability open and, therefore, it is to be decided first. In this regard, the proceedings dated 25.02.2020 is reproduced herein below :
"3. Learned counsel for the respondents has pointed out that the applicant has not challenged the orders of the Atomic Energy Commission of 23.09.1987 extending the deadline of filing options upto 30.12.1987 and which was confirmed in the orders of the Department of P&PW in the year 2009 (page 252). Therefore, even on this count this case differs from the decision of the Hon'ble High Court of Bombay which had decided a similar matter but not under the aegis of the Atomic Energy Commission but only under the Export Inspection Council of Ministry of Commerce and which had become final but in which no orders extending date have been issued. Learned counsel for the respondents also submits that in a similar matter of employees of Atomic Energy Commission decided before the Bench at Madras and the Hon'ble High Court of Madras, respondents moved the Hon'ble Apex Court and stay has been granted on implementation of the orders of the lower Courts which were in favour of the applicants therein.
4. In the circumstances that applicant has not challenged the extension orders of the respondents dated 23.03.1987 and confirmation of Department of P&PW in 2009, the learned counsel for the applicant will be heard further on the 27 OA No.269/2019 maintainability of OA at the next hearing which will be on 02.03.2020."
14. In this regard, it is relevant here to observe that on the subsequent proceedings dated 02.03.2020, matter was fixed for final hearing and thereafter, the case was listed on various dates for final hearing. During those proceedings, there was no objection raised on behalf of the respondents. Therefore, in view of the subsequent proceedings, the contention raised by the respondents is not tenable. Even otherwise, once the issue is already decided by the Coordinate Bench of this Tribunal and Hon'ble High Courts and the order of the Madras High Court is affirmed by the Hon'ble Supreme Court. Therefore, the contention of the respondents is not tenable at this stage. Further, in para 3 of the proceedings dated 25.02.2020, the respondents have relied upon the interim relief granted by the Hon'ble Supreme Court in respect of the case decided by the CAT Bench of Madras and the Hon'ble High Court of Madras. Now this case is already decided by the Hon'ble Supreme Court by dismissing the SLP of Union of India. Under these circumstances, the issue is already settled. Therefore, also the contention of the respondents is not tenable.
15. So far as the contention of the learned counsel for the respondents in the present case on the basis of the order passed by 28 OA No.269/2019 this Tribunal in the case of Deoram V. Bavbande (supra) is concerned, in the aforesaid batch of cases, one of us [Shri Krishna, Member (A)] was the Member of the said judgment. However, in paragraph Nos.47 and 48, it has been specifically observed as under :
"47. In the present case, however, applicants are of the Technical cadre of DAE. The OM of 01.05.1987, did not apply to the applicants since a separate scheme was envisaged. Therefore, the applicants cannot derive any benefit from the decisions relied upon by them above.
48. In the present case, applicant Shri Deoram Bavbande, had initially joined in Bhabha Atomic Research Centre (BARC) as Tradesman/B (a technical post) with effect from 05.02.1982. On his initial appointment, the Applicant was admitted under CPF Scheme. Subsequently, the Applicant was appointed in a substantive capacity (Confirmed) as Tradesman/D with effect from 01.04.1989 vide Confirmation Order No.2(4)/89/Conf.Cell/199 dated 12.10.1989. Having understood the complete advantages and disadvantages of Central Provident Fund (CPF) and General Provident Fund (GPF), the Applicant on his confirmation exercised his option to retain "Contributory Provident Fund' vide option dated 25.10.1989."
16. At this stage, it is relevant here to mention that Clause 6.3 of OM dated 01.05.1987 reads as under :-
"6.3.These orders do not also apply to scientific and technical personnel of the Department of Atomic Energy, Department of Space, Department of Electronics and such other Scientific Departments as have adopted the system prevailing in the Department of Atomic Energy. Separate orders will be issued in their respect in due course."29 OA No.269/2019
17. In the present case, the applicant was initially appointed as LDC in BARC and not "Scientific and Technical Personnel of the Department of Atomic Energy" and, therefore, the proposition of law laid down in the case of S.Subbiah (supra) are applicable to the case of the present case and, therefore, the order passed in the case of Deoram V. Bavbande (supra) is distinguishable and is not helpful to the respondents.
18. Now the question remains for consideration is that at the time of retirement on 31.07.2017, the applicant has received retiral benefits keeping her right reserve that, if the pension is admissible by giving undertaking to refund of entire amount with interest by representation dated 27.07.2017. Similar issue came up for consideration before the Hon'ble High Court of Bombay in Writ Petition No.1331/2017 decided on 17.01.2019 in the case of Amita Ajit Desai & Others Vs. Union of India and others, the Hon'ble Division Bench was pleased to hold as under :
"15. We find that in the case at hand, the same arrangement can be made to ensure equity. It will further be relevant to refer Clause 4.2 of the Office Memorandum, dated 1" May 1987. The said Clause in the Office Memorandum provides that the Government contribution to the CPF, together with interest thereon, credited to the CPF account of the employees who come over or are deemed to come over to the Pension Scheme, would be resumed by the Government. It further provides that the employees contribution together with interest thereon in the CPF account will be transferred to the GPF Account to be allotted to him on his coming over to the Pension 30 OA No.269/2019 Scheme.
16. Since the petitioners have already retired, there will be no question of employees contribution being transferred to the GPF Account. The only issue for consideration is with regard to employer's contribution to the CPF Scheme. Respondent No.2 can be directed to adjust the said amount along with interest @ 8% from the arrears that would be payable to the petitioners.
17. Hence, the rule is made absolute in the following terms :-
(i) It is held and declared that the petitioners would be entitled to be governed by the Central Civil Services (Pension) Scheme, 1972.
(ii) The petitioners would be paid Pension from the month of April-2019.
(iii) The arrears of Pension shall be paid within a period of six months. However, the arrears will not carry any interest.
(iv) Respondent No.2 is entitled to recover the employer's contribution towards CPF along with simple interest @ 8% p.a. thereon, from the arrears of pension that would be payable to the respective petitioners."
19. In view of the aforesaid discussion, the present OA is allowed and disposed of with the following directions :
(i) It is held and declared that the applicant would be entitled to be governed by the Central Civil Services (Pension) Scheme, 1972.
(ii) The applicant would be paid Pension from the date of 01.08.2017.
(iii) The arrears of Pension shall be paid within a period of six months. However, the arrears will not carry any interest.31 OA No.269/2019
(iv) The Competent Authority of the respondents are entitled to recover the employer's contribution towards CPF along with simple interest @ 8% p.a. thereon, from the arrears of pension that would be payable to the applicant."
20. There shall be no order as to costs.
21. Pending MAs, if any, stands disposed of.
(UMESH GAJANKUSH) (SHRI KRISHNA)
MEMBER (J) MEMBER (A)
Digitally signed by Khushboo Mittal Gupta
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