Central Administrative Tribunal - Delhi
Dr Pawan Kumar vs M/O Water Resources on 30 October, 2023
1
Item No. 72 O.A. No. 981/2021
Court-V
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 981/2021
Reserved on:- 11.10.2023
Pronounced on :- 30.10.2023
Hon'ble Dr. Chhabilendra Roul, Member (A)
Dr. Pawan Kumar,
Aged 61 years,
(Former Director Environment, NCA)
S/o Late Shri Mahabir Prasad,
R/o House No. E-111 Masjid Moth,
Greater Kailash Part-3,
New Delhi-110048.
...Applicant
(Through Advocate: Mr. Shaikh Jaidwal)
Versus
1. The Union of India,
(Through its Secretary),
Ministry of Water Resources,
RD and GR,
Shram Shakti Bhawan,
Rafi Marg, New Delhi- 110001
2. Narmada Control Authority,
(Through its Chairman),
Secretary, MOWR, RD and GR,
Shram Shakti Bhawan,
Rafi Marg, New Delhi- 110001
...Respondents
(Through Advocate: Mr. Manish Kumar)
ORDER
The Present O.A. has been filed by the applicant seeking the following reliefs:-
"a) Pass an appropriate order to Quash and set aside the Option Form framed by the Respondent No. 2 without reciting of power and circulated vide Impugned Order No. 1 source of p dated 17.01.1996 and 2 Item No. 72 O.A. No. 981/2021 Court-V consequent non-existent option dated 20.10.1996 exercised by the Applicant, by holding the same contrary to CCS (Pension) Rules 1972 read with DOPT OM dated 01.05.1987 in clause of applicability, Para 7 of NWS- 1980, Sub Clause 6 of Clause XIV of NWDT Award, which after publication in official gazette in terms of Section 6-A of the Interstate Water Disputes Act 1956 enacted by Parliament under Article 262 of the Constitution of India has the same force as decree of the Apex court.
b) In consequence of the above, pass an order to quash the Impugned Order No. 2 dated 10.05.2018 by which the Respondent No. 2 had settled retiral benefits of the Applicant as per CPF Rules 1962, instead of CCS (Pension) Rules, 1972
c) Direct the Respondents to settle and pay all pensionary benefits to the Applicant on his superannuation on 31.01.2018 including commutation with arrears as per CCS(Pension) Rules 1972 as applicable to employees of Central Government from the date of his retirement i.e. 01.04.2018,
d) Award cost of this litigation to the Applicant as deemed fit and proper by this Hon'ble Tribunal in the facts and circumstances of the case;
e) Pass any other order/direction which this Hon'ble Tribunal deemed fit and proper by this Hon'ble Tribunal in the facts and circumstances of the case."
2. The factual matrix of the case is that, the present applicant was employed as Director (Environment) on 19.11.1990 with the respondents. The respondents adopted a Pension Scheme and Death Cum Retirement Gratuity Scheme for the permanent employees of the respondents on 22.11.1995. In pursuance to the said policy the present applicant gave his option to remain under the previous scheme of Contributory Provident Funds (CPF). The applicant vide his consent letter dated 02.01.1996 gave his option (page 9 of the CA/page 22-24) in the following manner:-
3Item No. 72 O.A. No. 981/2021
Court-V "I do not opt to become the member of the NCA Pension Scheme and opt to continue as member of CPF Scheme."
Subsequently, the applicant realized that the Pension Scheme is far better than the CPF Scheme.
2.1 The applicant alongwith four other employees of Narmada Control Authority, submitted a representation in the year 2006, to allow them to migrate from CPF to Pension Scheme. The respondents vide their letter dated 22.05.2006, declined the request of the applicant alongwith others to migrate to the Pension Scheme, stating that they have initially given their option to remain in CPF Scheme after the introduction of the Pension Scheme in the year 1995.
2.2 Subsequently, the applicant submitted another representation on 18.02.2018, prior to his retirement before respondent No. 2, requesting therein that he should be allowed to migrate to the GPF cum Pension Scheme. As the applicant did not get any response to his representation dated 18.02.2018, he filed the O.A. No. 243/2018 before the coordinate Bench of this Tribunal at Jabalpur. The applicant withdraw the said O.A. with the liberty to file a fresh O.A., which was allowed by the 4 Item No. 72 O.A. No. 981/2021 Court-V Jabalpur Bench of the Tribunal vide order dated 02.05.2018.
2.3 At the time when the applicant was receiving his retirement benefits, the applicant vide his representation dated 16.05.2018 stated that he was accepting the retirement benefits under protest and right to claim his pensionary benefits under CCS Rules 1972. As the respondents did not consider his representation and he filed the present O.A. seeking the aforementioned reliefs.
3. Notices were issued to the respondents who have filed their counter reply. The applicant has also filed rejoinder to the counter reply of the respondents.
4. The applicant in his O.A. as well as during the arguments put forth by the learned counsel for the applicant tendered the following grounds, in support the reliefs claim by him.
4.1 Learned counsel for the applicant referred to the OM dated 01.05.1987 (page 52) issued by the Department of Pension, Pensioner's Welfare, Government of India, which mandated all the employees who have joined after 01.01.1986 are automatically migrate to the GPF Pension Scheme. However, there was an option in 5 Item No. 72 O.A. No. 981/2021 Court-V the said scheme, if any employee was interested to remain in CPF Scheme was at liberty to give positive option no remain in CPF Scheme.
4.2 The learned counsel for the applicant avers that in contrary to the such provision as well as in the O.M. dated 01.05.1987 issued by the Ministry of Personnel and Public Grievances, the Narmada Control Authority cancelled the Pension Scheme on 22.11.1995. He referred to the para 3.4 of the said O.M. dated 01.05.1987, which reads as under:-
"3.4 In the case of CPF beneficiaries, who were in service on 01.01.1986 but have since retired, and in whose case the CPF Account has not already been paid, will be allowed retirement benefits as if they were borne on pensionable establishments unless they specifically opt by 30.09.1987 to have their retirement benefits settled under the CPF Scheme."
4.3 He averred that the pension Scheme of 1995 by the Narmada Control Authority was contrary to the O.M. dated 01.01.1986 in the sense that all the employees who are in service on 01.01.1986 and those who joined service after that date would have deemed to come under the pension scheme. In other words, there was no option of coming to the new CPF Scheme for any new entrant to the service after 01.01.1986.
6Item No. 72 O.A. No. 981/2021 Court-V 4.4 The learned counsel for the applicant avers that as the present applicant joined service in the year 1990, he has automatically come under the pension scheme. When the option to remain in CPF Scheme was closed for a new employees, the provision in the year 1995 Pension Scheme of Narmada Control Authority seeking option was contrary to the Rule position. Hence, the provision for inviting options from the employees to remain under CCF Scheme was void abinitio. To buttress his arguments he refers to the judgment passed by the Hon'ble Apex Court in the matter of Union of India Vs. S L Verma (2006) 12 SCC 53, wherein the following has been held:-
"6. 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. 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 7 Item No. 72 O.A. No. 981/2021 Court-V the Pension Scheme was not in existence and it was a new one. Two legal fictions, 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."
In similar situations the Hon'ble Apex Court has held that asking for the options of giving or not giving the option is creating a factionary position where there was none.
4.5 The learned counsel for the applicant further avers that the petitioner did accept the retirement benefits under the CPF Scheme under the protest, keeping the option of challenging the same at the appropriate legal Forum.
5. Per contra, learned counsel for the respondents stated that the Narmada Control Authority is Competent to frame its Rules and Schemes for its employees. In absence of any such Rules and Regulations, the Rules and Regulations of the Central Government will apply. Because in the instant case the Narmada Control Authority, introduced a separate Scheme for Pensionary Benefits for its employees, the same shall apply to all its 8 Item No. 72 O.A. No. 981/2021 Court-V employee. Further he averts that the present applicant gave his option to remain in CPF Scheme in 02.01.1996. He refer to sub-clause 7 of Narmada Water Scheme (Bylaws), which mentions as follows:-
2. That, the service terms of NCA employees are governs sub-clause 7 of Narmada Water Scheme (Bylaws) may reads as under:-
"The Authority may from time to time appoint or employ such and so many officers and servants as it thinks fit and remove or dismiss them, under the rules and regulations applicable to the appointment, removal and dismissal of the Central Government officers and servants. All such officers and servant shall as such be subject to the sole control of the Authority. The scales of pay and other service conditions shall be as applicable to Central Government employee".
3. That in the matter of CPF Scheme, it is submitted that the Ministry of Irrigation, Government of India vide their letter dated 9th May 1984 was conveyed i.e. "it has been considered that there is no necessity of framing separate rules for the purpose of Provident Fund Contribution Provident Fund in the case of employees of the Narmada Control Authority and that they will be governed b the respective rules framed by the Central Government for this purpose."
5.1 He further avers that the O.M. dated 17.01.1987 issued by the DoP&T has specifically mentions that all CPF beneficiaries in service as on 01.01.1986 should be deemed to have given option to the pension scheme unless they specifically opt out to continue under the CPF Scheme. In the present case, the applicant has positively exercised the option to remain under the CPF 9 Item No. 72 O.A. No. 981/2021 Court-V Scheme. Accordingly, the option exercised by the applicant is in accordance with the O.M. dated 01.05.1987 issued by the DoP&T. 5.2 The learned counsel for the respondents further states that the ratio of the judgment in the matter of SL Verma (supra), relied upon by the applicant, is not applicable in the present case. In the said case, the petitioners / applicants have never exercised any positive the options in favour of the CCF Scheme. As they had not exercised any option, they were considered deemed to have migrated to the pension scheme. But, in the present case, the applicant has given positive option to remain in CPF Scheme. Accordingly, the ratio of the said judgment is not applicable to the present case. 5.3 The learned counsel for the respondents further states that the applicant has taken out pensionary benefits of the CPF scheme of the Narmada Control Authority which was introduced in the year 1995. None of the employees of the said authority have challenged the 1995 Scheme till date. Once they had accepted the Scheme and had given the option to remain in the CPF Scheme, the representation to migrate to the Pension Scheme is an afterthought. Moreover, the present O.A. 10 Item No. 72 O.A. No. 981/2021 Court-V has been filed after the retirement and after monetary benefits have been accepted by the applicant.
6. I have perused the records of the case and heard the averments made by both the learned counsels. I tend to agree with the contention of the learned counsel for the respondents that the Narmada Control Authority, being an autonomous organization, has the prerogative of introducing appropriate post retirement benefits for its employees. Though the government of India had introduced for GPF-cum-pension scheme for its employees with effect from 01.01.1986, and this Scheme was applicable to all employees who were in Government service on that date or thereafter, the Narmada Control Authority is competent to introduce its own retirement benefit for its employees. In absence of such scheme, as per the Narmada Water Scheme, notified by the Central Government on 10.09.1980, the schemes applicable to employees of Central Government shall apply. Moreover, the CPF scheme of the Narmada Control Authority of 1995 has never been challenged by the employees of this authority, including the present applicant. Once the employees like the present applicant have accepted the scheme, they continued to contribute to CPF; got their monthly contribution to their respective CPF account; 11 Item No. 72 O.A. No. 981/2021 Court-V accepted the monthly and annual statements of CPF; and accepted the monetary benefits under CPF Scheme at the time of retirement, they, including the present applicant, are barred by the principle of estoppels to agitate against such a Scheme.
7. In view of the above, the present Original Application lacks on merits and hence it is dismissed. Pending M.A., if any, also stands disposed of.
8. No order as to costs.
(Chhabilendra Roul) Member (A) /SG/