Delhi High Court
Jawaharlal Nehru University vs Manoj Pant & Ors on 27 July, 2022
Author: Satish Chandra Sharma
Bench: Chief Justice, Subramonium Prasad
NEUTRAL CITATION NO: 2022/DHC/003176
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 27.07.2022
% LPA 448/2022 and CM APPL. 32640/2022
JAWAHARLAL NEHRU UNIVERSITY ..... Appellant
Through: Ms. Mrinmayee Sahu, Mr. Sandeep
Mahapatra, Advocates.
versus
MANOJ PANT & ORS ..... Respondents
Through: Mr. Abhik Chimni, Mr. Ch. Animes
Prusty, Ms. Shraddha Sondhi,
Advocates for Respondent Nos.4, 8,
9, 11, 13, 14, 18, 21, 31, 32, 33, 35,
36, 37 and 38.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
SATISH CHANDRA SHARMA, CJ. (ORAL)
1. The present Appeal is arising out of the Judgement dated 18.02.2022
passed in W.P.(C.) No. 2989/2010 dated 18.02.2022 in the case of Manoj
Pant and Ors. Vs. Jawaharlal Nehru University.
2. The facts of the case reveal that the Writ Petition was preferred by the
Respondents who were serving the Jawaharlal Nehru University (JNU),
being aggrieved by the denial on behalf of the Appellant University in
granting them an option to switch over to General Provident Fund Scheme
(GPF Pension Scheme).
3. The undisputed facts reveal that the appellant Jawaharlal Nehru
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University (JNU) - has been constituted in terms of the Jawaharlal Nehru
University Act, 1966. The Appellant is an autonomous body and is
governed by the Statutes and Regulations framed there under. Large
number of appointments took place after the establishment of JNU on
various posts, including teaching posts, and at the time of establishment of
the University, the Contributory Provident Fund Scheme (CPF Scheme) was
in vogue.
4. In pursuance of the recommendations of the 4th Pay Commission, the
Government of India vide Office Memorandum dated 01.05.1987, notified
that all the CPF Beneficiaries in service as on 01.01.1986, who were still in
service on the date of issuance of Office Memorandum, would be deemed to
have opted for the GPF Pension Scheme on that day unless they specifically
opted out to continue under the CPF Scheme. Meaning thereby, an option
was given to all employees under the Government of India to continue with
the CPF Scheme, if they so desired. The option was to be conveyed to the
appropriate authority on or before 30.09.1987. The Office Memorandum
categorically provided that, in case no such communication was received on
behalf of an employee, the employee would be deemed to have been covered
by the GPF Pension Scheme. The Appellant university adopted the Office
Memorandum in-toto in its Executive Council Meeting which took place on
20.07.1987.
5. The University vide Circular dated 21.12.1987 informed all its staff
members and employees about the Office Memorandum dated 01.05.1987
and the employees were informed to exercise their option. The decision of
the Executive Council was published vide Circular dated 21.12.1987, and
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the requisite options were to be submitted by officers and employees latest
by 20.05.1988. Some of the employees opted to be members of General
Provident Fund-cum-Pension-cum-Gratuity Scheme, and some of the
employees opted to continue under the Contributory Provident Fund-cum-
Gratuity Scheme.
6. The facts of the case reveal that another Circular was issued on
11.04.1988, requiring the employees of University to exercise an option if
they desired to continue with the CPF Scheme by 20.05.1988. It was also
made clear to them that they would not be permitted to revise their option
after 20.05.1988. Some of the employees of Jawaharlal Nehru University
were not able to exercise their option within the time provided under the
Circular dated 21.12.1987 and 11.04.1988, and a large number of
representations were preferred in the matter. The Executive Council of the
Appellant keeping in view the representations, in its meeting which took
place on 19.07.1993, resolved to permit the employees to submit their option
for change over from CPF Scheme to GPF Scheme. The decision of the
Executive Council which took place on 19.07.1993 was again circulated to
the employees by a communication dated 05.10.1993. The option which was
required to be exercised in the matter also contained a declaration to be
given by an employee to refund the employees contribution along with
interest to the credit of their respective CPF Accounts. However, some of
the employees were again not able to exercise the option, and a Circular was
issued by JNU on 26.07.1995 again extending the deadline of exercising the
option by three months, i.e. by 15.07.1995.
7. The facts of the case further reveal that some of the employees on
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account of ignorance; on account of fact that the Circulars were not made
available to them; and for some other reasons, still could not exercise their
option, and large number of representations were submitted to the JNU with
a request to grant further opportunity to exercise their option either to
continue under the CPF Scheme or to join the GPF Scheme.
8. The University, keeping in view the large number of representations,
constituted a four-member committee headed by Dr. R. K. Nayak
(hereinafter Nayak Committee) as its Chairperson, and the Committee after
great deliberations took note of the Office Memorandum issued by the
Government of India dated 01.05.1987 - which provided that, in case an
employee does not opt to remain covered by the CPF Scheme, he would
automatically be deemed to have opted for the GPF Scheme, and, therefore,
recommended that one more chance should be given to employees to
exercise their option. The report submitted by Nayak Committee was placed
before the Finance Committee of the JNU and the recommendations framed
by the Committee came up before the Executive Council of the Appellant in
its meeting held on 20.11.2006.
9. The Executive Council of the Appellant in its 229th meeting held on
19.11.2006, resolved to approve the recommendations of the Finance
Committee and to implement the recommendations of the Nayak Committee
to grant one more opportunity to the employees. The resolution of the
Executive Council was subject to approval of the Government of India. The
Ministry of Finance, Government of India, vide Office Memorandum dated
10.12.2008, refused to accept the request for extension as resolved by the
Executive Council, and in those circumstances, the Petitioners came up
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before this Court by filing a Writ Petition, and the following reliefs were
prayed for by the Petitioners in the matter:
"1. Directing implementation of decision taken by the
Respondent vide Executive Council Resolution date 19.07.1993
and the circular dated 26.7.1995 alongwith the
recommendations of Nayak Committee to the effect that the
petitioners be deemed to have switched over to GPF Pension
Scheme.
And in the alternative:-
Allow the petitioners to exercise their option as per Nayak
Committee recommendations and the Executive Council
Resolution dated 29.1.2006 to remove the discrimination
between the similarly situated teachers/ employees."
10. The Learned Single Judge has allowed the Writ Petition. Paragraphs
37 to 59 of the order passed by the learned Single Judge, reads as follows:
"37. In any case, since the 1987 O.M. did not ipso facto apply
to JNU being an autonomous statutory body, it was open to the
institution to formulate its own timelines for invitation of
options from existing employees. The university cannot possibly
be faulted for having afforded its employees a reasonable
period of time to make an informed decision with regard to
switching over to the pension scheme. More fundamentally, it
does not lie in the mouth of the petitioners to urge this
submission especially when the majority of them did in fact
submit an option within the time prescribed and now seek those
choices to be reviewed and reopened. The validity of the
options submitted after 20 May 1988, the date originally
prescribed by JNU for submission of choices, is a different
issue altogether. The submission of Mr. Rai, to the aforesaid
extent, consequently, stands negatived.
38. That takes the Court to deal with the principal issue which
stands raised in this petition. The 1987 O.M. in unequivocal
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terms mandated an option being exercised by those employees
who chose to continue under the CPF regime. A failure to
exercise that option by the last date fixed, was by virtue of a
deeming fiction, liable to be viewed as the employee falling
within the ambit of GPF. It also becomes pertinent to bear in
mind that the learned Single Judge in Shashi Kiran, had taken
the position that those who had consciously exercised the
option to remain under the CPF scheme within the time
prescribed, could not "resile" from the option once exercised.
The Division Bench of this Court in Shashi Kiran, however,
held that those employees could not be pinned down to the
option exercised bearing in mind the supervening events which
had occurred in the meanwhile. The first was of the changed
economics of the two schemes. The CPF scheme which was
dependent upon the interest rate regime had over a period of
time become redundant or at least unattractive. Once the
economy of the country came to integrate with global interest
standards and rates came to be drastically reduced, CPF no
longer remained a favorable retiral benefit. The Division Bench
in Shashi Kiran then went on to hold that it would be
inequitable to presume that these set of employees could
prophesize or gaze into the crystal ball of how the change in the
financial landscape would impact them in the evening of their
careers. Secondly, and more importantly, it found that both the
Union as well as similarly placed autonomous employers had
themselves contributed to a state of uncertainty coming to
prevail on account of conflicting interpretations propounded
with respect to the 1987 O.M. Even though S.L. Verma in
unequivocal terms recognized the impact of the deeming fiction
and underlined the requirement of an option being exercised
only in case an employee chose to continue under the CPF
scheme, the Union as well as various autonomous institutions
proceeded down ambivalent and confounding paths. It was in
that backdrop that the Court in Shashi Kiran held that it would
be arbitrary and unfair to hold employees down to choices
exercised in the backdrop of a state of incertitude. This more so
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when the authorities themselves had permitted employees to
revisit and revise the choices made.
39. For the purposes of the present matter, it would be pertinent
to bear in mind that the JNU had initially fixed the last date for
submission of options as 20 May 1988 for those who desired to
remain in the CPF regime. The subsequent circulars of 1993
and 1995 fixed the last dates as 31 December 1993 and 15 July
1995 respectively. However, the subsequent circulars required
employees to submit options for migration to the GPF scheme.
The 1993 circular further provided that in case option to
change over to the GPF scheme is not furnished within the time
specified, the employee "would be deemed to have opted to
continue under the existing..." CPF scheme. Here JNU
committed the same folly as Delhi University losing sight of the
terms of the 1987 O.M. which had categorically provided that
options would only be required if an employee chose to
continue to draw benefits under the CPF scheme. That O.M.
had in unequivocal terms spelt out the consequences of a
failure to submit an option by 30 September 1987 by providing
that the employee would be deemed to have changed over to the
GPF scheme. It was this significant facet of the 1987 O.M.
which was highlighted firstly by the Supreme Court in S.L.
Verma and was reiterated by this Court in Virmani and Shashi
Karan.
40. The decisions of this Court recognized the impact of a
failure to submit an option at all, an option submitted after the
cut-off date and an option submitted during the extended
periods provided by the employer. The fate of the first class of
employees would not detain the Court even momentarily since
they would be deemed to have migrated to the GPF scheme by
operation of law. The Court in Shashi Kiran had proceeded to
dismiss the appeals of the Delhi University insofar as they
pertained to "Category 1" noting that the learned Judge had
rested the same on the pertinent observations of the Supreme
Court in S.L. Verma which had held that once the rubicon was
crossed, any option to revert to CPF would be of no avail since
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the transition to GPF would have come into effect by virtue of
the legal fiction enshrined in the 1987 O.M.
41. The Court also bears in mind the evident fact that while the
original circular of JNU did comply with the 1987 O.M., the
subsequent circulars of 1993 and 1995 proceeded on the
mistaken premise that a positive option to be part of the GPF
scheme was required to be submitted. More importantly, the
consequences of a failure to submit the requisite option was
ordained to be that the employee would continue under the
CPF. This was clearly contrary to the basic tenet of the 1987
O.M. The Court is of the considered view that the Nayak
Committee rightly noticed this fallacy when it observed that
the "default option" was incorrectly mandated to be CPF. The
options submitted after the default dates were recognized as
liable to be ignored by the Court in Virmani. Those who had
exercised an option after the date prescribed were held entitled
to the benefits of the GPF scheme. To that extent the judgment
in Virmani was affirmed by the Division Bench in Shashi Kiran.
Consequent to the dismissal of the appeals of the
Delhi University taken against that decision and the principles
enunciated by the Division Bench, unequivocally bind this
Court.
42. The Division Bench, however, set aside the decision of the
learned Judge in Shashi Kiran which related to those who had
exercised an option to continue under the CPF within the time
prescribed. The relief extended to these set of employees rested
on two seminal facts which were found to be conclusively
proven by the Court. The Court in Shashi Kiran firstly found
that numerous employees had changed over to the GPF scheme
in the extended periods provided by the respondents there. It
then took cognizance of the fact that various other autonomous
institutions had been permitted to provide an extended window
to their employees to switch over to the GPF scheme after the
last date prescribed under the 1987 O.M. It consequently found
no justification to deny this class of petitioners the right to
switch to the GPF scheme notwithstanding a positive assertion
on their part to remain under the CPF regime. The Division
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Bench in Shashi Kiran delved into the changed economic
scenario depicted by the drastic fall in interest rates which
rendered the CPF scheme unviable and less beneficial. It
ultimately held that it would be unfair to pin down this class of
employees to a choice originally exercised since it would be too
onerous to hold them liable to either prophesize or "view into
the crystal ball" and predict that the CPF regime would remain
relevant and beneficial for them. Taking into consideration the
fact that other organizations had been permitted to extend this
benefit to their employees who were similarly placed, the Court
in Shashi Kiran proceeded to allow the appeals of these
employees.
43. Viewed in that light, the Court firstly considers the right of
the 42 petitioners who ostensibly and with so called certitude
decided to remain in the CPF regime within the cut-off date
prescribed by JNU. Admittedly, JNU permitted numerous
employees to revise the options submitted in terms of the
original circular pursuant to the 1993 and 1995
extensions. Shashi Kiran has held in favour of this category of
employees holding that they cannot be pinned down to the
original choice as exercised. The view of the learned Single
Judge in Shashi Kiran that these employees could not be
permitted to resile stands overruled by the Division Bench of
the Court. That judgment clearly binds this Court. These set of
employees cannot, consequently, be denied relief on this score.
44. That takes the Court to deal with the fate of those employees
who joined the University after 20 May 1988 and during the
currency of the 1993 and 1995 circulars. It has already been
found that the two circulars referred to above, digressed from
the initial understanding of JNU of the import of the 1987 O.M.
The original circular had rightly held that only those employees
who wanted to continue in the CPF regime were liable to
submit options. It also correctly provided that a failure to
submit a choice would be understood as the employee
migrating to the GPF regime. However, by the time the 1993
and 1995 circulars came to be issued, JNU committed the
patent mistake of requiring employees to submit a positive
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option to be part of GPF. The more fundamental mistake
committed by it was when it provided that those who did not
submit an option, would be deemed to have continued under the
CPF scheme. The change of course adopted in the 1993 and
1995 circulars is what fell for adverse comment of the Nayak
Committee leading it to observe that the language of those
circulars prevented a "default conversion" to the GPF scheme.
This is evident not just from the terms of the two circulars
referred to above, but also the nature of the options which were
liable to be submitted. The unambiguous command of those
circulars was that a failure to migrate to the GPF scheme
would be deemed to amount to an exercise of choice to continue
under the CPF scheme. This clearly flew in the face of the terms
of the 1987 O.M.
45. The options submitted by employees during the period when
the 1993 and 1995 circulars held the field are liable to be
evaluated in the backdrop of the default option being ordained
to be a continued application of the CPF scheme. Viewed in
that background and the uncertainty which came to prevail, the
petitioners cannot be faulted for having chosen, either
mistakenly or unknowingly, to be part of the CPF scheme. In
order to hold an employee down to a choice validly exercised
and to recognise it as being one consciously made, it is
incumbent upon the Court to consider whether the avenues
available to be chosen were spelt out with sufficient or at least
reasonable clarity by the employer. The respondent has failed
to convince this Court that its actions meet this fundamental
benchmark. The defense proffered by the respondent crumbles
on account of the seminal mistake committed of providing the
default option to be CPF.
46. Regard must also be had to the fact that the Nayak
Committee had in terms of its report found as a matter of fact
that the 1993 and 1995 circulars had not been brought to the
notice of the remainder employees who were likely to be
impacted. It has observed that "administrative lapses" were
committed and the circulars were not "appropriately
circulated". It proceeded to recommend that CPF holders as
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existing on 26 July 1995 who were still serving may be given an
opportunity to convert to GPF or to opt specifically to be part
of CPF. Those recommendations were also guided by the fact
that 95% of the employees of JNU had already opted to be part
of the GPF scheme and a miniscule 87 employees had been
deprived this benefit. Undisputedly, the recommendations made
by the Nayak Committee were approved by the Finance
Committee of JNU and ultimately accepted by the Executive
Council in its meeting of 29 November 2006 when it decided to
grant one further opportunity to the remainder employees to
choose to be part of the GPF scheme.
47. Viewed in that backdrop, this Court is of the considered
view that it is not open to JNU to either repudiate or disown the
findings of the Nayak Committee report to the extent that it
speaks of administrative lapses having occurred and the 1993
and 1995 circulars proceeding on the incorrect premise of a
failure to opt for the GPF scheme resulting in the employee
being governed by CPF. While Ms. Arora has vehemently
contended that all the petitioners held important and
responsible positions in the university and it is not open to them
to assert that they had no knowledge of those circulars, the
Court finds no justification to accept this submission in light of
what was found by the Nayak Committee on facts and which
ultimately finds resonance and tacit acceptance in the
resolution of the Executive Council of 29 November 2006.
48. While the facet of the passing of the aforesaid resolution
and JNU consequently being bound by the same poses no
problem, admittedly the same did not come to be approved by
the concerned Ministry in the Union Government. This decision
of JNU was also not accorded approval by the UGC unlike the
circulars of 1993 and 1995 which had been specifically
assented to and the university permitted to proceed
accordingly. The petitioners have failed to establish that JNU
was entitled to proceed further in terms of the Executive
Council resolution of 29 November 2006 notwithstanding the
refusal of that proposal by the Ministry and the UGC. Learned
counsels appearing for the petitioners have failed to establish
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that the Act sufficiently and independently empowered JNU to
move forward on a matter having financial implications
notwithstanding the explicit disapproval of the concerned
Ministry and UGC.
49. However, none of the petitioners [as per the particulars
furnished by the respondents and appearing at pages 239-244
of the paperbook] are shown to have been appointed after the
last date for submission of options prescribed under the
circular of 26 July 1995. In fact, most of the petitioners appear
to have submitted their options either pursuant to the original
circular of 21 December 1987 or the subsequent circular of 5
October 1993. The solitary exceptions in this regard are
petitioner No. 10 who joined on 1 June 1995 and submitted an
option on 29 August 1995 and Petitioner No. 43 who was
appointed on 17 January 1995 and submitted an option on 8
February 1995. These petitioners submitted an option as per
the circular of 26 July 1995. The petitioners are thus all
covered by the 1993 and 1995 circulars and were required to
furnish their options as per the dates prescribed in those
circulars. This Court in the preceding parts of this judgment
has already dealt with the impact of those circulars and how
they impeded an informed choice being made. It thus comes to
the firm conclusion that the petitioners' right to claim
conversion to GPF cannot be said to be impacted by the refusal
of the Ministry or UGC to approve the decision of the Executive
Council of 29 November 2006.
50. This since their right to seek conversion and migrate to the
GPF accrued in terms of the 1993 and 1995 circulars. Both
these circulars were duly approved by UGC. The fact that those
circulars were not appropriately circulated has been duly noted
by the Nayak Committee. The same committee also found that
these two circulars themselves led to a cloud of confusion
descending upon the nature of the option to be submitted as
well as the contingency in which an option was to be exercised
at all. If the JNU had merely proceeded in terms of the
principles embodied in the 1987 O.M., all those employees who
had failed to submit an option would be deemed to have
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switched to the GPF scheme. Additionally, and in any case
there was no requirement of an employee opting for the GPF
scheme. The fundamental flaw in the two circulars as pointed
out earlier was the stipulation that in case an employee chose
not to progress to the GPF scheme, it would be presumed that
the employee had opted for the CPF scheme. It is this
fundamental fallacy which ultimately impacted the rights of the
petitioners here. Viewed from whichever angle, denying the
claim of the petitioners here would be wholly unfair and fall
contrary to the principles laid down in Virmani and Shashi
Kiran.
51. The Court is conscious of the admitted position that various
employees of JNU did in fact exercise an option to move to
GPF in terms of these circulars. However, the mere fact that
the petitioners here, albeit a miniscule number, failed to
appreciate the true import of the choice being exercised or
comprehending the relative merits of the two schemes, cannot
result in them being denied the right to change over to GPF. An
inaccurate understanding of the nature of the option which was
to be submitted and which act came to be tainted by the nature
of the 1993 and 1995 circulars would have clearly left the
petitioners' on the horns of a dilemma. Merely because some of
the employees of JNU did providentially opt for the GPF
cannot constitute a valid ground in law to deny the petitioners'
here the rights otherwise conferred on them.
52. At the cost of repetition, it may be noted that the option was
to be submitted only in case the employee desired to remain
within the CPF umbrella. The conclusions arrived at by the
Nayak Committee and the ultimate recommendation made came
to be accepted and a remedial measure formulated by the
Executive Council in terms of its decision taken on 29
November 2006. However, the right of the petitioners which
accrued in 1993 and 1995 cannot be said to have been
extinguished and that too on account of an administrative lapse
on the part of JNU or the Ministry and UGC refusing to accord
approval to that resolution.
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53. While the issue of the NPS coming into effect from 31
December 2003 was also raised, the Court noted that the Office
Memorandums of 30 June 2009 as well as the Notification of 31
January 2019, which have been placed by the respondents on
the record, do not appear to detract from the right of the
petitioners to seek conversion to the GPF scheme. This since
admittedly on account of factors which prevailed, all of them
have remained under the CPF scheme.
54. Before closing and for the completeness of the record it may
be noted that Ms. Arora had vehemently urged that all the
petitioners despite having spent years in service in JNU had
failed to opt for the GPF scheme. Ms. Arora submits that
despite the opportunities provided by JNU in terms of the 1993
and 1995 circulars, the petitioners for reasons best known to
them chose to be under the CPF regime. It was her contention
that this fact alone disentitles the petitioners from the grant of
any relief. The Court finds itself unable to sustain this
submission for the following reasons. The failure to submit a
positive option to be considered part of the GPF cannot be
adjudged de hors the shortcomings which beset the 1993 and
1995 circulars noticed above. This petition came to be
instituted in April 2010. It was filed by most of the petitioners
while they were still in service or on the verge of retirement.
This the Court notes since petitioner nos. 47, 48 and 52 retired
in 2010. While petitioner nos. 47 and 48 were still in service
when the writ petition came to be preferred, petitioner no. 52
retired on 31 March 2010 and thus evidently a few days before
the present cause came before this Court. It cannot therefore be
said that the petitioners are guilty of indolence or are liable to
be denied relief on grounds as urged by Ms. Arora.
55. The caveat which however must necessarily be entered is in
respect of the following petitioners who retired years before the
present petition came to be preferred. Their details are placed
below:--
Petitioner Nos. Year of retirement
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53 2006
54 2005
55 2006
56 2007
57 2004
58 2006
61 1997
56. Insofar as petitioner nos. 53, 54, 55, 56, 57, 58 and 61 are
concerned, there is no material on record which may indicate
whether they accepted the CPF benefits without demur and
protest and after a long hiatus chose to join the rest of the
petitioners here. This issue would merit consideration by JNU
bearing in mind the note of caution which was recorded by the
learned Judge in Virmani and more particularly in paragraph
17.5. of the report. While Mr. Rai learned senior counsel
sought to urge that the doctrine of merger would apply and this
caveat entered would no longer hold good in light of the
judgment of the Division Bench in Shashi Kiran, the Court finds
itself unable to sustain this submission for the following reason.
It must be remembered that the judgment in Virmani came to be
affirmed by the Division Bench in Shashi Kiran. The appeals of
the Delhi University preferred came to be dismissed. However,
while parting the Division Bench did not interfere or dilute this
cautionary note as entered in Virmani. The submission of Mr.
Rai in this respect is liable to be and is thus rejected.
57. The Court further records that learned counsels have not
urged that the change over is to take effect from an anterior
date. In fact, no such relief is also claimed. The Court notes
that similar was the position which was noticed in Virmani as
evident from paragraph 17.4 of the report. Consequently the
relief as framed hereinafter would only have prospective
application.
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58. The writ petition shall consequently stand allowed in the
following terms. JNU is hereby called upon to process the
claims of the petitioners for migration to the GPF scheme in
light of the findings recorded hereinabove. The aforesaid
consideration shall be subject to the petitioners refunding the
employer's contribution together with interest @ 8% p.a. as per
the directions framed in paragraph 20 of Virmani.
59. Insofar as petitioner nos. 53, 54, 55, 56, 57, 58 and 61 are
concerned, the Court leaves it open to JNU to consider their
entitlement to relief in light of the principles enunciated in this
decision subject to the rider placed in paragraphs 55 and 56 of
this judgment."
11. Learned Counsel appearing for the University has vehemently argued
before this Court that the learned Single Judge, while delivering the
judgment has erred in law and facts by placing reliance upon the judgment
delivered by this Court in the case of Smt. Shashi Kiran & Ors. v. Union of
India & Ors., (2016) SCC OnLine Del 4819, and ignoring the vital fact that
the Respondents in the LPA opted to continue under the CPF Scheme and
never gave any option for the GPF Pension Scheme in spite of multiple
opportunities granted to them and, therefore, the Order passed by the learned
Single Judge deserves to be set aside.
12. It has further been argued that in the case of Smt. Shashi Kiran & Ors
(supra), as many as 12 extensions were granted for exercising the option of
changing over to the GPF Scheme from the CPF Scheme, that too without
obtaining the consent of UGC/ Ministry of Finance, and in those
circumstances, the judgment was delivered in the case of Smt. Shashi Kiran
& Ors (supra) whereas, in the present case, the last of such consent/
intimation from/ to the UGC was declined way back in 1995 and, therefore,
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the learned Single Judge has erroneously applied the principles of parity
which was not applicable to the facts and circumstances of the present case.
13. Learned Counsel for the Appellant has vehemently argued before this
Court that the recommendations based upon the Nayak Committee Report
were declined in the year 2008 and, therefore, the Jawaharlal Nehru
University was not left with an option to invite fresh proposals from teachers
for their shifting/ change over from the CPF to the GPF Scheme. He
submits that the Ministry of Finance has rejected the recommendations of
the Nayak Committee and the order passed by the Ministry of Finance was
not in question before the learned Single Judge, hence, the learned Single
Judge has erred in law and facts by directing the University to grant an
option to the teachers to exercise their rights in order to shift from the CPF
to the GPF Scheme.
14. It has further been argued by learned Counsel for the Appellant that
the recommendations of the Nayak Committee were not accepted by
Ministry of Finance and, therefore, once the recommendations were not
accepted by Ministry of Finance, the resolution of the Executive Council
dated 29.11.2006 could not have been implemented and by no stretch of
imagination can the Respondent employees be given an option to switch
over from CPF to GPF Scheme as has been directed by the learned Single
Judge and, therefore, the judgment deserves to be set aside.
15. It has been reiterated that the learned Single Judge has, in fact, while
allowing the writ petition, overruled the decision dated 10.12.2008 of the
Ministry of Finance, and no such relief was sought in the writ petition and,
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therefore, the judgment passed by the learned Single Judge is bad in law.
16. Learned counsel has vehemently argued before this Court that the
University cannot be at fault in the matter as the University has granted
multiple opportunities to the employees to switch over from the CPF to the
GPF Scheme, and majority of them did submit their option within the
prescribed time period and the persons who did not exercise the option
cannot be permitted at this juncture to exercise their option afresh as it will
result in a heavy financial burden upon the University and, therefore, the
order passed by the learned Single Judge deserves to be set aside.
17. The other ground raised by the appellant University in the present
appeal is that the learned Single Judge has arrived at erroneous findings in
the matter of implementation of the 1987 Office Memorandum. It has been
argued before this Court that the 1993 and 1995 Circular issued on the
subject categorically provided that an employee who wants to switch to GPF
Scheme, will have to exercise the option, and the Respondent employees
have consciously chosen to be governed by the CPF Scheme. Hence, they
were not entitled to any benefit which has been extended by the learned
Single Judge.
18. Learned counsel has vehemently argued before this Court that in case
the order passed by the learned Single Judge is implemented, there will be a
recurring liability in the matter of payment of pension, arrears of pension
will have to be paid along with the interest. He submits that the University
already has a deficit of more than 100 crores in its non-salary expenses and
will not be able to bear the financial burden imposed upon the University by
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virtue of the Judgment delivered by the learned Single Judge.
19. Lastly, it has been argued that the judgment passed by the learned
Single Judge deserves to be set aside and the employees, who have not
exercised their right to exercise their option for transfer from the CPF to the
GPF Scheme, by no stretch of imagination, at this juncture can be permitted
to exercise the option as directed by the learned Single Judge.
20. Per contra, learned counsel for the Respondents has vehemently
argued before this Court that the judgment delivered on the subject does not
warrant any interference and it was the University which has not
implemented the Office Memorandum issued by Government of India
through the Ministry of Personnel, Public Grievances and Pensions dated
01.05.1987 in toto and it has resulted in the present anomaly. It has been
stated that based upon the Judgment delivered in the case of Smt. Shashi
Kiran & Ors (supra), the learned Single Judge was justified in allowing the
writ petition and no case for interference is made out in the matter.
21. Learned counsel for the Respondent - employees has referred to the
report submitted by the Nayak Committee and the executive instructions
issued on the subject from time to time, and thus, a prayer has been made for
dismissal of the instant Appeal.
22. Heard learned Counsel for the parties and perused the material on
record. The matter is being disposed of at the admission stage itself with the
consent of the parties. The undisputed facts of the case reveal that the
appellant University was established as Jawaharlal Nehru University in 1966
and the establishment, management and functioning of the University is
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governed under the Act of 1966, read with statutes and regulations framed
thereunder. The University, since its establishment has introduced a CPF
Scheme for its employees and all employees were members of the CPF
Scheme. The Government of India, based upon the recommendations of the
4th Pay Commission, issued an Office Memorandum dated 01.05.1987
notifying the option for all CPF Scheme beneficiaries to switch to the GPF
Pension Scheme. The Office Memorandum categorically provided that all
the beneficiaries of the CPF Scheme would be covered by the GPF Pension
Scheme, until and unless they specifically opted to continue under the CPF
Scheme. Thus, it was categorically mentioned that the employees would
have the option to continue with the CPF Scheme if they so desired and the
option was to be submitted up to 30.09.1987.
23. The Office Memorandum of Government of India was considered by
the Executive Council of the University and the same was adopted by the
Executive Council in its meeting held on 20.07.1987. The University vide
circular dated 21.12.1987 informed its staff members and other employees
about the adoption of Office Memorandum dated 01.05.1987 and an option
was given to switch over to the GPF Pension Scheme. The Office
Memorandum dated 01.05.1987 is reproduced as under:
" OFFICE MEMORANDUM
Subject: Change over of the Central Government employees
from the Contributory Provident Fund Scheme to Pension
Scheme - implementation of the recommendations of the Fourth
Central Pay Commission.
The undersigned is directed to state that the Central
Government employees who are governed by the Contributory
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Provident Fund Scheme (CPF Scheme) have been given
repeated options in the past to come over to the Pension
Scheme. The last such option was given in the Department of
Personnel and Training O.M. No..F3(1)-Pension Unit/ 85 dated
the 6th June, 1985. However, some Central Government
employees still continue under the CPF Scheme. The Fourth
Central Pay Commission has now recommended that all CPF
beneficiaries in service on January 1, 1986, should be deemed
to have come over to the Pension Scheme on that date unless
they specifically opt out to continue under the CPF Scheme.
2. After careful consideration the President is pleased to
decide that the said recommendation shall be accepted and
implemented in the manner hereinafter indicated.
3. All CPF beneficiaries, who were in service on 1.1.1986 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.
3.2 The employees of the category mentioned above will,
however, have an option to continue under the CPF Scheme, if
they so desire. The option will have to be exercised and
conveyed to the concerned head of Office by 30.9.1987 in the
form enclosed if the employees wish to continue under the CPF
Scheme. If no option is received by the Head of Office by the
above date the employees will be deemed to have come over to
the Pension Scheme.
3.3 The CPF beneficiaries, who were in service on 1.1.1986,
but have since retired and in whose case retirement benefits
have also been paid under the CPF Scheme, will have an option
to have their retirement benefits calculated under the Pension
Scheme provided they refund to the Government, the
Government contribution to the contributory Provident Fund
and the interest thereon, drawn by them illegible.... of
settlement of the CPF Account. Such option shall be exercised
latest by 10.9.1987.
3.4 In the case of CPF beneficiaries, who were in service on
1.1.1986 but have since retired, and in whose case the CPF
Account has not already been paid, will be allowed retirement
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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.
3.5 In the case of CPF beneficiaries, who were in service on
1.1.1986, but have since died, either before retirement or after
retirement, the case will be settled in accordance with para 3.3
or 3.4 above as the case may be. Options in such cases will be
exercised latest by 30.09.1987 by the widow/ widower and in
the absence of widow/ widower by the eldest surviving member
of the family who would have otherwise been eligible to family
pension under the Family Pension Scheme if such scheme were
applicable.
3.6 The option once exercised shall be final.
3.7 In the types of cases covered by paragraph 3.3 and 3.5
involving refund of Government's contribution to the
contributory provident fund together with interest drawn at the
time of retirement, the amount will have to be refunded latest by
the 30th September, 1987. If the amount is not refunded by the
said date, simple interest thereon will be payable at 10% per
annum for period of delay beyond 30.9.1987.
4.1 In the case of employees who are deemed to come over or
who opt to come over to the Pension Scheme in terms of
paragraphs 3.3, 3.4 and 3.5, the retirement and death benefits
will be regulated in the same manner as in case of
temporary/quasi permanent or permanent Government
servants, as the case may be, borne on pensionable
establishment.
4.2 In the case of employees referred to above, who come over
or are deemed to come over to the Pension Scheme, the
Government's contribution to the CPF together with the interest
thereon credited to the CPF Account of the employee will be
resumed by the Government. The employee contribution
together with the interest thereof at his credit in the CPF
Account will be transferred to the GPF account to be allotted to
him on his coming over to the Pension Scheme.
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4.3 Action to discontinue subscriptions/contributions to CPF
Account may be taken only after the last date specified for
exercise of option viz., 30.09.1987.
5. A proposal to grant exgratia payment to the CPF
beneficiaries, who retired prior to 1.1.1986 and to the families
of CPF beneficiaries who died prior to 1.1.1986, on the basis of
the recommendations of the Fourth Central Pay Commission is
separately under consideration of the Government. The said ex-
gratia payment, if and when sanctioned, will not be admissible
to the employees or their families who opt to continue under the
CPF Scheme form 1.1.1986 onward.
6.1. These orders apply to all Civilian Central Government
employees who are subscribing to the Contributory Provident
fund under the Contributory Provident Fund Rules (India),
1962. In the case of other contributory provident funds, such as
Special Railway Provident Fund or Indian Ordnance Factory
Workers Provident Fund or Indian Naval dockyard workers
provident fund etc., the necessary orders will be issued by the
respective administrative authorities.
6.2 These orders do not apply to Central Government
employees who on employment illegible...... Subscribe to
Contributory Provident Fund. These orders also do not apply to
Central Government employees appointed on contract basis
where the contribution to the contributory provident fund is
regulated in accordance with terms of contract.
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.
7.1 Ministry of Agriculture etc., are requested to bring these
orders to the notice of all CPF beneficiaries under them,
including those who have retired since 1.1.1986 and to the
families covered by paragraph 3.5 of these orders.
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7.2 Administrative Ministries administering any of the
Contributory Provident Fund Rules, other than Contributory
Provident Fund Rules (India), 1962, are also advised to issue
similar orders in respect of CPF beneficiaries covered by those
rules in consultation with the Department of Pension and
Pensioners‟ Welfare.
8. These orders issue with the concurrence of the Ministry of
Finance Department of Expenditure vide their U.O. No.2038/JS
(Pers)/87 dated 13.4.1987.
9. In their application to the persons belonging to Indian Audit
and Accounts Department, these orders issue after consultation
with the Comptroller and Auditor General of India.
10. Hindi version of these orders follows."
24. The aforesaid Office Memorandum was implemented in respect of
Jawharalal Nehru University and some of the employees could not exercise
their option pursuant to the circular dated 21.12.1987 and, therefore, the
Executive Council, keeping in view the various representations made by the
employees in its meeting dated 19.07.1993, resolved to allow fresh option
from the employees for change over from CPF to GPF Scheme. The
relevant extract of the Resolution passed by the Executive Council is
reproduced as under:
"5.6 Considered allowing fresh option to University employees
for change over from Contributory Provident Fund-cum-
Gratuity Scheme to General Provident Fund-cum-Pension-cum-
Gratuity Scheme and Resolved that the employees of the
University may be allowed a fresh option for change over from
CPF-cum-Gratuity Scheme to the GPF-cumPension-cum-
Gratuity Scheme and that the approval of the UGC be obtained
for implementing the decision."
25. The appellant University vide communication dated 05.10.1993
issued a circular for switching from the contributory Provident fund-cum-
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Gratuity Scheme to the General Provident Fund-cum-Pension-cum-Gratuity
scheme, and the Circular dated 05.10.1993 is reproduced as under:
" CIRCULAR
Sub: Fresh option to the University employees for change over
from contributory Provident fund-cum-Gratuity Scheme to
General Provident Fund-cum- Pension-cum-Gratuity scheme.
The Executive Council of the University at its meeting held on
19.7.1993 has decided to allow fresh option for changeover
from the Contributory Provident fund-cum-Gratuity Scheme to
General Provident fund-cum-pension-cum-Gratuity Scheme.
The option for changeover form CPF to GPF is to be exercised
by the employees of the University in the prescribed performa
obtainable form the Dy. Registrar (Admn.)/ Dy. Registrar
(Acad)/ Dy. Registrar (A&E) and returned duly completed by
31.12.1993 by all teaching and non-teaching staff to DR
(Acad)/ DR (Admn.)/ DR (A&E) respectively.
2. All CPF beneficiaries of the University who were in service
as on 19.7.1993 but have since retired or died before or after
retirement, they or their widow/ widower and in their absence
by the eldest surviving member of family are also entitled to
exercise the above option.
3. The option will not be available to unemployed persons and
persons appointed on tenure posts as they are entitled only to
contributory Provident Fund.
4. The option once exercised will be final and no request for
any change at a later date will be entertained. The CPF
beneficiaries who do not exercise any option will be deemed to
have opted to continue under the existing contributory
provident fund-cum-Gratuity Scheme.
5. The Deputy Registrar (Academic), Deputy Registrar (Admn)
and Deputy Registrar (Acad & Estt) may kindly bring the
contents of this circular to the notice of those who on the date
of issue of this circular are on study leave, deputation, foreign
service etc. or have since retired or died.
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6. All the Head of the Deptt./ Deans of the Schools/
Chairpersons of the Centres are requested to bring the contents
of this Circular to the notice of employees Teaching/Non-
Teaching working under their Administrative Control.
Receipt of this communication may please be acknowledged."
26. The aforesaid circular makes it very clear that the Executive Council
has extended the date for submission of option up to 19.07.1993 subject to
the approval of the University Grants Commission and the University Grants
Commission has granted no objection to the extension by issuing a
communication dated 09.09.1994. The communication issued by University
Grants Commission dated 09.09.1994 is reproduced as under:
" University Grants Commission
Bahadurshah Zafar Marg
New Delhi-110002
9 Sep. 1994
The registrar
Jawaharlal Nehru University
New Delhi
Sub: Allowing fresh option to the University employees for
change over from CPF to GPF regarding
Sir,
I am directed to refer to your letter No.VII/1/8/78/PF/48
dated 15.4.1994 on the above subject and to say that the
commission has no objection towards the option of the
University employees for changeover from CPF to GPF.
Regarding the utilization of funds on account of option from
CPF to GPF is under consideration.
Yours faithfully
Sd/-
(R.D. Sharma)
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Under Secretary"
27. The facts of the case further reveal that in spite of the circular issued
by the University, some of the employees failed to furnish options for
switching over from CPF to GPF and, in those circumstances, the Deputy
Finance Officer of JNU again issued a circular dated 26.07.1995 granting
three months' time from 15.07.1995 to submit the option for switching over
from the CPF to the GPF Scheme.
28. The records of the case further reveal that some of the employees who
were not aware of the circulars issued from time to time or on account of
other reasons could not submit their options and submitted large number of
representations to the University with the request to grant one last
opportunity to exercise their option. Keeping in view the representations
received by the University, the University constituted a Four-Member
Committee presided over by R.K. Nayak as its Chairman and the Committee
after great deliberations, observed as under:
"1. As a part of the implementation of the Fourth Pay
Commission, the Government issued a notification dated 1st
May 1987, giving an option to employees in CPF scheme to
change over to GPF. JNU provided this option to its employees
through a notification dated 21st Dec, 1987. Individual
employees were sent this notification by name to ensure that the
information reached every one (Appendix-I). At that time some
employees opted to continue in the CPF scheme. 65 employees
opted to change over to the GPF scheme. There was a
provision in the notification that those employees who did not
exercise the option would be deemed to have opted for the
GPF. Under this default provision, 226 employees who did not
respond by returning the option forms were switched over to
the GPF scheme.
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2. With the permission of the UGC, JNU gave a fresh option to
its employees covered under CPF on 14th Oct 1993 and 26 July
1995, for conversion to GPF. These circulars asking for
options, unlike the initial circular of 21st Dec, 1987, were sent
as general circulars and not by name (Appendix-II). Moreover,
unlike the previous notification of 21st Dec, 1987, the default
option was not a switch over to GPF, but was continuing to
remain in the CPF scheme. This prevented the persons who did
not receive / respond to these latter circulars from automatic
change over to the GPF as was the case with the original
circular of 1987. Many employees have claimed that they did
not receive the latter circulars.
3. The Fifth Pay Commission implemented with effect from
1.1.1996 did not offer options for such switch over from the
CPF to the GPF schemes.
4. The current position in this aspect is that almost 95% of the
University employees are covered under the GPF scheme and a
small number of employees (87 as per the list enclosed as
Appendix-III) are still in the CPF scheme. Employees in the
latter group have made many representations verbal and
written, to the Vice Chancellor to let them switch over to the
GPF scheme. In most cases the plea is that the general
circulars of 1993 and 1995 for switching over to the GPF
option did not reach them. This seemed to suggest that there
were some administrative and procedural lapses in the last two
options of 1993 and 1995. A view was taken by the University
to have the matter examined by an independent committee to
facilitate further decision in the matter."
29. The Committee took note of the fact that almost 90% of the
employees had switched over to the GPF Pension Scheme and no serious
financial implication would be caused by permitting the employees to switch
over from CPF to GPF Scheme.
30. In paragraph 5 of its report, the Committee observed as under:
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"(5) Observations of the Committee:
The committee noted that the circulars giving option for
conversion to GPF in 1988, 1993 and 1995 differed in some
crucial details.
1. The circular of 1988 offering an option to convert to GPF
was sent to JNU employees by name. This minimized the
chances of circular not reaching the addressee or getting lost in
distribution process.
2. Later circulars of 1993 and 1995 were however sent as
general circulars.
3. The default option in 1988 circular was GPF whereas it was
CPF in the later circulars."
31. The Committee after submitting a detailed exhaustive report,
submitted its recommendations and the recommendations of the Committee
are reproduced as under:
"(6) Recommendations of the Committee
1. The Committee recognizes that there are two dimensions to
the issue. One is the larger issue of giving another option to
employees after the recommendations of the Fifth Pay
Commission, which, otherwise forbade it. This issue, the
Committee feels, can only be addressed by the Government of
India keeping in view the welfare of employees.
2. The other dimension highlighted before the Committee is that
even when the JNU extended fresh options to its employees in
1993 and 1995 with the specific approval of UGC, there were
administrative and technical lapses in the manner of its
circulation and implementation. The facts brought out before
the Committee have revealed that the circulars of 1993 and
1995 were not appropriately circulated. They needed to have
been circulated by name to only those who had, in 1988, chosen
to remain in CPF. If these employees did not opt to continue in
the CPF, they would automatically be deemed to have come
over to the GPF scheme. The objective of the 1987 circular was
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clearly to offer one last conscious choice to concerned
employees to continue in the CPF scheme and convert all
others who either made no choice, or did not opt to continue in
the CPF, into the GPF scheme.
3. The Committee, therefore, recommends to the JNU
administration to rectify administrative lapse as pointed above,
by addressing the CPF holders of 26th July 1995 who are still
in service today offering the appropriate choice, i.e. to opt
specifically to continue in the CPF, or get converted into the
GPF. Cases of persons retiring between July 1995 to April
2005 can be considered separately, to the extent that the
retrospective choice in their case is feasible.
4. Cases of persons retiring between July 1995 to April 2005
can be considered on merits provided they fulfill the following
three criteria:
a) the employee was in service of the University as on
26.7.1995
b) retired from the service of the University before 30.4.2005.
c) he/she had in the meantime made a formal representation for
change over from the CPF to the GPF option.
5. The Committee has noted that the additional financial
liability on this account even if all the 87 persons concerned
are converted into GPF with effect from 26th July 1995 will be
marginal and spread over the next two decades. However, the
Committee recommends that the University may also explore
possibilities of meeting this expenditure from its own resources,
pending the regularisation of this administrative act by the
UGC/MHRD.
6. The University should evolve a regular mechanism of
keeping its employees well informed of various kinds of benefits
available to them. All relevant information should also be
available on the University's website. The Administration
should play a proactive role in keeping all its employees well
informed on this count.
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The committee presents this report and Unanimous
recommendations to the Vice Chancellor, JNU."
32. The Executive Council of the University in its meeting held on
20.11.2006 passed a Resolution in its 229th Meeting and the same reads as
under:
"MINUTES OF THE 229th MEETING OF THE EXECUTIVE
COUNCIL HELD ON WEDNESDAY, THE 29 NOVEMBER,
2006 AT 11.30 A.M. IN THE COMMITTEE ROOM, (ROOM
NO. 225), ADMINISTRATIVE BLOCK OF THE UNIVERSITY.
6.1 Considered the recommendations of the Finance
Committee meeting held on 20.11.2006.
While considering recommendations of the Finance Committee
the members raised the issue of extending GPF scheme in
respect of those University employees who were not allowed the
same due to some technical reasons. The members emphasized
that this indeed is a course correction as no fresh option to
convert from CPF to GPF scheme is being advocated. The
members further emphasized that the Nayak Committee has
already deliberated the matter in detail and has made its
recommendations. The Council after detailed deliberations
resolved to allow conversion from CPF to GPF as
recommended by Nayak Committee as a one time rectification.
The expenditure on this account will not be met out of the
maintenance grant. The Council further resolved not to
entertain any future request in this respect. The conversion will
also be applicable to retired employees i.e. those who retired
on or after the last option was given."
Thereafter the Council resolved to approve the
recommendations of the Finance Committee meeting held on
20.11.2006 as given in Annexure-III."
33. The Executive Council, based upon the recommendations of the
Nayak Committee, resolved to grant one more opportunity to the remaining
employees, subject to approval from Government of India, and the matter
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was forwarded to Government of India. The Ministry of Finance,
Government of India, vide Office Memorandum dated 10.12.2008, rejected
the request made by the University and the Office Memorandum dated
10.12.2008 is reproduced as under:
"OFFICE MEMORANDUM"
"The undersigned is directed to refer to the Rector, Jawaharlal
Nehru University letter dated 31st October, 2008 seeking
approval of Department of Expenditure to allow some of the
employees of JNU to switch over from CPF to GPF Scheme
with retrospective effect as a special dispensation.
2. In the communication it has been stated that in the year
1995, the University had called for option from its employees to
switch over from CPF to GPF Scheme. In this regard it is
intimated that Government of India had last given the option to
the employees who were governed by CPF Scheme to come
over to GPF cum-Pension Scheme in May, 1987. Thereafter,
option for switch over to GPF-cum-Pension Scheme has not
been allowed by the Government of India. Therefore, the option
allowed by the JNU in the year 1995 itself is not valid one. 3.
JNU therefore, in the first instance is requested to clarify as to
how the option for switch over from CPF to GPF-cum-Pension
was called for by them in 1995 without the approval of Ministry
of Finance/M/o HRD."
34. The Respondents before this Court who have not switched over from
CPF to GPF Scheme were left with no option, but to knock on the doors of
this Court, and the learned Single Judge allowed the writ petition.
35. The undisputed facts of the case make it very clear that the 1st Office
Memorandum issued on the subject by Government of India dated
01.05.1987 categorically provided for automatic conversion from CPF to
GPF Scheme in case no option was submitted for switching over. However,
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in case of Jawaharlal Nehru University, such a condition was not in
existence.
36. In the considered opinion of this Court, once the Office Memorandum
provided for automatic switching over in case of non-submission of an
option, the question of depriving the benefit to the present Respondents does
not arise and, therefore, the learned Single Judge was justified in allowing
the writ petition.
37. The issue involved in the present case in respect of switching over
from CPF to GPF has already been considered in the case of R.N. Virmani
v. University of Delhi, (2014) SCC OnLine Del 2799, Kanta Batra v. Union
of India, (2014) SCC OnLine Del 2797 and Smt. Shashi Kiran & Ors. v.
Union of India & Ors., (2016) SCC OnLine Del 4819 and the Division
Bench of this Court in the case of Shashi Kiran & Ors. (supra) has held in
paragraphs 23 to 31 as under:
"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:
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"(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
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
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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.
(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-à-vis persons joining the University on or
after 01.01.2004, was declined by MHRD. (see
letter dated 26.03.2007)."
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25. 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 cutoff 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 refusing relief to the former, who are
appellants in this batch.
27. As noticed earlier, 2469 staff members are enjoying the
benefit of the Pension Scheme, on account of the choice or
option made by them. Furthermore, the University in its
additional affidavit in the course of proceedings in the writ
petitions had stated as follows:
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"The reason for such a large number of petitioners
seeking to migrate from the CPF scheme to the
GPF-cum-Pension scheme is entirely due to the
huge disparity in financial benefits that has
developed, since the late 1990s, between those on
CPF scheme and those on GPF-cum-pension
scheme. Till the late 1990s, the interest rates
applicable to the CPF scheme were very high-the
rate was at 14% for 6 years until 1999-2000,
thereafter, the interest rate sharply declined to 8%
in 2003-2004. On the other hand, however, those
who were covered by the GPF-cum-pension
scheme benefited from the generous provisions
made on the basis of the recommendations of the
fifth and sixth pay commission. As a result, basic
pensions have undergone a significant increase in
dearness allowance on pensions goes up every six
months due to inflation indexation; 40% of the
pension in available for commutation the original
value being restored after 15 years; and, the basic
pension goes up by 20% after the age of 80 and
every five years thereafter. Thus, it is evident that
the two retirement benefit schemes give differential
benefits, with the GPF-cum-Pension scheme
providing much more benefits than the CPF
scheme, especially after the recommendations of
the two pay commissions. It is solely on this
account that the petitioners are belatedly
attempting to migrate from the CPF scheme to the
GPF-cum-pension scheme, even though they chose
to remain covered by the CPF scheme and fully
reaped the benefits that accrued to them under the
scheme. The writ petitions are liable to be
dismissed on the grounds of delay and laches, as
well as the principle of approbate and reprobate."
28. If these facts are taken together with the Central
Government's conceded stand in permitting staff members and
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employees in other institutions, including educational
institutions such as IIT Kanpur, the Department of Atomic
Energy and Council for Scientific and Industrial Research to
opt in extended dates for switch-over qua its employees, the
rejection of UGC's request that the conversion date be extended
till 31.12.2003, reveals the arbitrariness and non-application of
mind by the Central Government.
29. That the Central Government permitted change over as late
as till 31.12.2003, i.e before the sixth pay commission
recommendations (introducing CPF benefits to all those
employed later, universally with effect from 01.01.2004). This
aspect assumes critical importance, because the Central
Government (and UGC) admit that all those who opted after
the cutoff date (and many of them having opted for CPF
earlier) have been granted benefits under the Pension Scheme.
The ground realities with respect to the nature of benefits that
accrue to CPF optees in comparison with GPF/Pension optees
paints a stark picture. One should keep in mind that while
opting for such schemes, employees cannot gaze into the crystal
ball, as it were, and speculate whether the existing state of
affairs would continue. At the time when these options were
sought and given, those opting for CPF were reasonably
certain that having regard to the nature of contributions and
the rate of interest, the end package would compare favourably
with Pension optees, with respect to returns earned at the stage
of superannuation. In other words, when the options were
given, these appellants were in employment; neither they, nor
for that matter the respondents could have visualized a drastic
fall in the interest rates, which severely undermined the CPF
option and shrunk the ultimate lump sum CPF benefit available
to these appellants. While examining whether a statute once
valid and upheld as such on the ground of Article 14 ceases to
be so due to later developments and with passage of time, the
Supreme Court has declared in a number of judgments that the
earlier declaration of validity or basis of classification cannot
be the basis to deny the arbitrariness of the law, if it is proved
to be so later (Refer to State of Madhya Pradesh v. Bhopal
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Sugar Industries (1964) 6 S.C.R. 846; Narottam Kishore Dev
Varma v. Union of India (1964) 7 S.C.R. 55; H.H. Shri Swamiji
of Shri Admar Mutt v. The Commissioner, Hindu Religious &
Charitable Endowments Department (1980) 1 S.C.R.
368; Motor General Traders v. State of Andhra Pradesh. 1984
(1) S.C.R. 594.) In H.H. Shri Swamiji of Shri Admar
Mutt (supra) it was held that: "there is a firm foundation laid in
support of the proposition that what was once a non-
discriminatory piece of legislation may in course of time
become discriminatory and be exposed to a successful
challenge on the ground that it violated Article 14 of the
Constitution."
30. In this case, clearly when the appellants opted for CPF
benefits, they did so without premonition of future
developments. The net result was that as between two
individuals in the same grade and post, carrying the same pay
scale, one who opted for the Pension Scheme was entitled to a
substantial amount and future adjustments in pension whenever
Dearness Allowance were to be enhanced. However, for the
appellants, there was no such advantage; they saw a shrinking
package on account of later developments - notably the drop in
interest rates. Now, interest at the rate or anyway, somewhere
near the rates, which prevailed when the scheme was
introduced, was one of the significant basis for the CPF
scheme. With a drastic change in the rates, those opting for
CPF were at a grave disadvantage. To compound their
problems, the University's interpretation of a fairly clear Office
Memorandum (dated 01.05.1987) injected much confusion. The
third factor is that even amongst University staffers, 12
extensions were given and a large number of options for the
Pension Scheme were furnished - both in respect of those who
opted for CPF earlier and those who did not. Taking the totality
of circumstances, the University's insistence to pin the
appellants to the options they originally exercised is
discriminatory.
31. The other reason why this court is inclined to allow this
appeal is that neither the Central Government nor the UGC
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have furnished a single reason for why option to switch-over to
the Pension Scheme was permitted up-to 31.12.2003 to several
other autonomous institutions and denied to the appellants.
This singular omission to say what compelled the Central
Government to deny the petitioners the benefit of switch-over,
while permitting those in other institutions, in the opinion of the
court, clearly amounts to discrimination. The mere fact that the
petitioners are working in the University whereas the other
employees work in other institutions is not sufficient, given that
the consistent stand is that options once given cannot be
altered. Therefore, it is held that denying the right to opt to the
Pension Scheme in the case of the Shashi Kiran batch is
unsustainable; it has resulted in arbitrariness."
38. It is true that an SLP has been preferred before the Hon'ble Supreme
Court, i.e. Special Leave Petition (Civil) Diary Nos. to Appeal 13901 and
17007 of 2017, titled University of Delhi v. Shashi Kiran and Ors.,
however, the judgment delivered by the Delhi High Court has not been
stayed.
39. The undisputed facts of the case make it very clear that on account of
the Office Memorandum dated 01.05.1987, the Jawaharlal Nehru University
has issued a circular for submission of option up to 20.05.1988 and the
Jawaharlal Nehru University, in its wisdom inserted a condition that those
employees who want to continue with the CPF Scheme should submit their
option, and those who want to switch over shall also submit their option. It
was a mistake committed by the Jawaharlal Nehru University as the
Jawaharlal Nehru University lost sight of the terms and conditions of the
Office Memorandum dated 01.05.1987. The Office Memorandum provided
for automatic transfer from CPF to GPF in case no option was submitted.
40. The facts also make it very clear that there was ambiguity in the initial
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circular issued by the Jawaharlal Nehru University and, therefore, time was
extended again and again. Under those circumstances, the Nayak
Committee constituted in the matter, rightly arrived at the conclusion that
one last opportunity should be given to the employees in the matter.
41. This Court fails to understand the stand of the Jawaharlal Nehru
University, especially in the light of the Nayak Committee Report. The
Nayak Committee Report categorically states that there were administrative
lapses on the part of the administration and the circulars were not
appropriately circulated. Once the Nayak Committee Report recommended
that the employees are entitled for one last opportunity and those
recommendations were approved by the Finance Committee and accepted by
the Executive Council, the University, at this juncture, cannot take a
different stand as the apex body of the University has accepted the Nayak
Committee Report and merely because the Ministry of Finance has not
accepted the decision taken by the Executive Council, the Jawaharlal Nehru
University has taken a somersault in the matter by opposing the writ petition
and by filing the present LPA.
42. The matter was forwarded to the Ministry of Finance keeping in view
the final implications in the matter and, therefore, as the Respondents had a
right to migrate to the GPF, especially in the light of the fact that the Office
Memorandum provided for automatic migration from CPF to GPF in case of
non-submission of the option. The Respondents, therefore, could not have
been deprived of the benefit of switching over to GPF.
43. This Court, after careful consideration of the documents on record, is
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of the considered opinion that the Respondents cannot be deprived of their
right to switch over to GPF as the initial Office Memorandum dated
01.05.1987 provided for the same in case of non-submission of the option.
This Court does not find any reason to interfere with the order of the learned
Single Judge, and the instant LPA is dismissed.
SATISH CHANDRA SHARMA, CJ
SUBRAMONIUM PRASAD, J.
JULY 27, 2022 aks/N.Khanna LPA 448/2022 Page 42 of 42 This is a digitally signed Judgement.