Central Administrative Tribunal - Madras
P Sundaramurthi vs D/O Atomic Energy on 23 September, 2020
Paris OA PPO?
CENTRAL ADMINISTRATIVE TRIBUNAL MADRAS BENCH DAB TOO TIOROLT Dated the.) "day of September, Two Thousand Twenty CORAM? HON'BLE MR. T. JACOB, Member (A) PSundaramurthi, Son af Parasuraman, & Worked'as "D' Man \ wer She IY Technical Cadre, Residing at Canara Bank Street, Vayalur Village & Post, Via Ralpakkam 603102.
"Kancheepurim District. : Applicant By Advacate M/s, Balan Haridas Vv tf {. Union of India, rep by its Secretary, Department of Atomic Energy, ® Government of India, Mumbai. °
2. Chairman, ARC & Secretary DAE, Anushakti Bhavan, CSM Mare, Mumbai 400001.
3. Indira Gandhi Centre for Atomic Research, Department of Atomic Energy, Government of India, Ral pakk am. .. Respondents By Advocate Ms. Shakila Anand oat be OA DOR ROT (Pronounced by Hon'ble Mr. T. Jacob, Member (A}) The applicant has fled this GOA under Section 19 of the Administrative 'Tribunals' Act, 1985 seeking the following reliefs ;
"L. io quash the anler af the 3" cee dated OS.07.2017 bearing IGCARIOA No, 604 of 201 VAdmin (ORMYIOT FIO and e posremmionts to shit che applicant fram the CPF to mo from the date of his retirement vis.
u comsegaentiy direct ih GPP Scheme aml paying SLGL S008, arrears of pension anc oe in. , PASS such other anders or directions as this Hon'ble Tribunal think fitun the clroumstances of the case and render yastice."
2, The brief facts of the case as stated by the applicant are as follows:
The applicant joined the 3" respondent as Helper 'B' on 22.01.1973. | was confirmed in a technical category viz as Draughtsman/A wef 01.09.89 vide confirmation order di, 11.05.1990. The applicant retired on superannuation wal 31.01.2008 while holding the post af Draughisman/E. While joining, the applicant was given option to exercise cither Contributory Provident Fund (CPF) or Pension Scheme (GPF). The applicant initially opted for CPF scheme.
employees to shift fom CPF to GPE. But the said Memorandum was not communicated to the applicant. Thereafler, the respondent issued Memorandum in October 2000 giving another option to the employees to shift fram GPF to CPF and vice versa. The applicant submitted application to shift from CPF to GPP. However, the same was rejected. Therefore, the applicant challenged the Safle GCA LPO/2017 dated 27.03.2008. The same was upheld by the Hon'ble High Court and affirmed by the Hon'ble Supreme Court as well. Nowever, the Hon'ble High Court in a similar matter filed by the applicant's co-employees in WR21560/2013 passed order dated 03.11). 2014 holding that they are entitled te exercise their option pursuant to the Office Memorandum dated 12.10.2000 and directed the respondents to examine their case and pass orders in accordance with the observations made therein. Thereafier, the applicant filed fresh os representation dated 13.01.2016 to reconsider his case for pension and, thereafler, Hed OA.604/2017, wherein the Tribunal by order dated 18.04.2017 _ directed the respondents to pass orders on his representation. The 3 respondent by order dated 03.07.2017 rejected the representation of the applicant to switch over from CPF to GPF. Hence the applicant has filed this OA seeking the above reliefs, inter alia, on the following grounds:
i. The orders of the 3 "respondent are illegal and contrary to law.
u. The Hon'ble High Court while allowing WP No, 21569 of
20) 4 had made it clear that the applicant is entitled to exercise his option pursuant to the Office Memorandum dated 12.10.2000 and the respondents were directed te pass appropriate order on the basis of the observation made in the order, if the applicant is eligible otherwise. Therefore, the isspe with regard tn application Office memorandum dated 12.10.2000 in respect of the "applicant has become final and the only thing which has to be decided by the respondent was whether the applicant is otherwise eligible vie. whether he had sufficient years of service for eS eC Lo falls OA PPARN2017 drawing pension, whether there is any ather bar for grant of pension ete. As such there is ne bar for payment of pension to the applicant, While so, rejecting the case of the applicant for pension on the ground that office momorandum dated 12.10.2000 will net apniy to the applicant is grassiy Ufega!l and only shows total nen application of mind on the part of the 3° respondent.
i, The total leneth of service rendered by the applicant is 35 years and he is eligible to draw pension ance his option te shift from CPP to GPP is secepted.The Hon'ble High Court has held « that Office Memorandum dated 12.10.2000 is applicable te the applicant and consequently the respondent should shift the applicant from CPF to OPP and as the applicant has rendered 35 years af service, the respondents should sanction the pension, Instead of that the 3° respondent in violation of the direction issued by the Hon'ble High Court in WP Na. 21569 of 2013 has passed the impugned orders.
iv. The respondents had been now and then issuing Office Memorandum permitting the employees to exercise thelr option to shift from CPF to GPF and vice versa, Several similarly placed employees of Central Government were allowed to switch over fo GPF Scheme and therefore, there is no seriousness attached to the aut off date prescribed in the Qifice Memorandum dated 12.10.2000. In fact Vikram Sarabhai Space Centre (VSSC) has issued Office Memorandum dated 08.05.2006 and permitted the employees to exercise their aption te shift from CPF to GPF vies versa on or before 30.06.2006 and the out off date of considering 20 years of qualifving service is 01 08.1992, If the same cut off date is adopted the applicant is eligible for shifting from CPF to GPF Scheme. In such circumstances, the 3° respondent ought to have permitted the applicant to shift from W Safi OA P9601?
CPF to GPF x The order of the 3° respondent dated 35.07.2017 runs contrary to the order of the High Court in WP Noe. 21569 of 2013. The Hon'ble High Court in all terms that held that the employees are covered under the ONice Memorandum dated 12.10.2000. While se, the 3° respondent grossly erred in passing the order dated 03.07. 2017 by holding that the applicant is nat to exercise his optim fo switch over te GPP under Office Memorandum dated 12.10.2000.
. vi, In the order dated 03.07.2017, the 3" respondent has stated that the Office Memorandum dated 08.05.2006 issued by the Department of Space will not apply to Department of Atomic bnergy, as they are two different departments. [t is not in dispute these two departments are organs of Union of India and the employees working in both the departments are the employees of the Central Government. While so, thers cannot be different yardsticks for deseribing the cat off dates. What is applicable to C Vikram Sarabhai Space Centre will apply to other employees in other departments.
vi. The respondent has issued Office Memorandum dated «OF. 8.2007 bearing No. as 1/98 Oe PBCS/6240 and in that it is stated as follows:
"(1) Scientific employees who joinsd the service ee to 01,08. 1982 are eligible to exercise the aption o change over the pension scheme at any time before retirement as per DAE OM No. 37/35/63-Tech TCA) dated 17.04.1964. On the same analogy, the Technical Employees who had been promoted to the Scientific Post prior to 01.08.1992 are also clipgible to exercise the option to change over to pension scheme at any ey Gaol LG GA LPOMANY time before retirement.
(2) Selentific employees who joined DAE on or after OL.O8. 1892, would be eligible fo exercise aption within 20 years of quallVing service to change over to a " nd ae pension scheme as per OM Na. a/1/i8?-P& Pw (PIC- LY) dated 23.07.1996. Qn the same analogy, a technical employes promoted to scientific post on ar after 01.08.1992 shall also be eligible to apt to pension scheme before completing 20 years of qualifying " service ag Scientific Officer".
Thus the respondent department has permitted the scientific cnployees to switch aver from CPF to Pension or viee versa any lime prior to retirement. However, a different yardstick is being adopted in respect of the applicant and similarly placed employees. This armaunts to hostile discrimination and violation of Article 14 and 16 of the Constitution of India.
WA, The employees switched over from CPF to GPF scheme, as the later on was more beneficial and on that basis several employees are drawing pension. While so, denying the same to the applicant i§ discriminatery, inspite of applicant making application to shift te GPF.
ix. The applicant has specifically pleaded that the 1° respondent by - using discretionary pewwer permitted three Scientific Officers in DAE to switeh over the GPF by. re- exercising the option. This fact has not been denied by the Pa 3 respondent.
x. The 2 respondent is the authority who had used its discretionary power and permitted three Scientific Officers to switch over from CPP and OPE. The representation has been directed to be considered by this Hon'ble Tribunal by an order oo wt Parks OA LPOORIN dated [804.2017 in OA O04 of 2017 and direction was issued to pass orders. While so, the 3° respondent has once again passed the impugned order dated G3.07.2017, without the appeal being considered by the 2° respondent. Thus the order passed on 03,07 2017 is erroneous.
xi 'The applicant's right to switching over from CPF te GPF has been erystallized by the order of the Hon'ble High Court in WP No. 24569 of 2013 and therefore the action of the respondent in passing the impugned order amounts to gross contempt of the said order, 6 "xi The action of the respondent in denying pension to the applicant is discriminatory and on the erroneous assumption that Office memorandum dated [2.102000 will not apply to the applicant. | xii, When many employees have been permitted to switch over from CPF to GPF there is no reason for the respondents to deny the same benefits to the applicant, xiv, The very cut off date preacribed in Office Memorandum dated 12.10.2000 is not conclusive and final. The respondents and other Government Departments have been changing the cut off dats to enable the employees to switch over to GPF as the _ ct ooo. SRS Was. more beneficial. While so, the respondents. cammot 00000000... deny the switch over to the applicant from CPF te GPF and such an action is unjust and unfair and grossly discriminatory.
xv. The Office Memorandum dated 02.12.1996 was not put on notice 16 the applicant and there isehe material to show that the applicant had no knowledge about it, If the same had been brought to the notice of the applicant, he would have exercised the option to switch over from CPF to GPF. Only since such an opportunity was not in the notice of the applicant, he had to ef ae a Ralls CFA PPOQNSDET exercise his option when the next office memorandum dated 13, 16.2006 was issued,
3. The respondents have filed repby. it is submitted that the QA is not maintainable in law and on facts. As such the same is lable to be dismissed m liming. The sum and subsiance of the OA is that the applicant was under
Contributory Provident Fund (CPF) Scheme. Office Memorandum dated 12.10.2000 came inte existence by providing the final opportunity of exercising option fo all the technical personnel of the Department of Atomic Energy either to continue under CPF scheme or switch over tx pension scheme subject to the condition that such option should be exercised within six months from the date of the Office Memorandum. The Office Memorandum was placed on all notice boards of this Research Centre besides circulation to all Group Directors/Heads of Divisions'Heads of Sections and Recognized Associations of this Centre. In ae ~~ response to the said Office Memorandum, 83 Technical Employees had so he i egy i nnige agi te tee cbt eenge tec ecegeceeethne tee pleadings after a lanse of 7 years. In view of these facts the applicant is not entitled for relief sought for by him on the face of R. The impugned orders are in accordance with law. The applicant cannot take recourse to the orders in WP No. 21569 of 2013 and stake his claim for switching over from CPF to Pension Scheme as he had submitted the option to switch over to pension scheme long eM fo " a et Goal le OA LPOQROTY after the time period provided by the DAE OM dated 12.10.2000, The applicant neither was eligible to switch over to pension scheme pursuant to OM dated 12.10.2000 nor submitted his option within the time Hmit. Tt is nothing but abuse of process of law and court. For all these reason the applicant's claim is liable for summary rejection / dismissal. As a matter of fact, the law is senied in respect of the same Office Memorandum dated 12.16.2000 holding that there is no provision for extending the period fixed for exercising option and this has ee been cBtegorically held by Hon'ble High Court of Madras in the judgment passed in WP No, 2937) of 2008 dated 02.11.2011 filed by the applicant and which has been confirmed by Hon'ble Supreme Court in SLP No.26212 of 2012. | Hence the respandents pray for dismissal of the QA,
4. The applicant has filed rejeinder more or less reiterating the averments made inthe OA. -
5. Heard the learned counsel for the respective parties and perused the pleadings and documents on record, = 6 Admittedly this is the third round of litigation before this Tribunal. The representation dated 12.1 0.2007 for conversion to GPF Scheme wherein the said OA was dismissed by order dated 27.03 2008. Thereafter he filed OA.604/2017, whersin this Tribunal by order dated 18.04.2017 directed ithe respondents te pass orders on his representation, The 3° respondent by order dated 03.07.2017 rejected the representation of the applicant to switch over from CPF to GPE. ~ " ide Joe * 10 of 18 OA 1790/2017 Hence the Original Application.
7. The grievance of the applicant is that while the Hon'ble High Court in all terms had held that the employees are covered under the OM dated 12.10.2000 which has become final, the applicant having put in 35 years of qualifying service is eligible to draw pension. The Vikram Sarabhai Space Centre has issued OM dated 08.05.2006 permitting the employees to exercise option to shift from CPF to GPF on or before 30.06.2006 and the cut off date for considering 20 years of qualifying service is 01.08.1992 but the respondents _ have filed to permit the applicant to shift fram CPF to GPF. The 2™ respondent had used its discretionary power and permitted three Scientific Officers to * switch over from CPF to GPF ignoring the claim of the applicant. Further prove' of the applicant is that there had been several OMs permitting exercise of option to switch over from CPF to GPF. For the Scientific staff, there is no time frame to exercise option and the same ean be exercised till the date of retirement. Preseribing cut off date for technical staff alone is 8 unreasonable and amounts to gross discrimination. Memorandum issued by the _ DOP&PW dated 12.10.1992. allows one more option to employees who had. 0 not completed 20 years of service as on 01.08.1992 to switch over from CPF to _ GPF Scheme. The said Mernorandum was not put on notice to the applicant. However, by the subsequent Memorandum dated 23.07.1996 the earlier Memorandum dated 12.10.1992 was kept under abeyance. Even the 23.07.1996 notification was nat circulated to the applicant. Only the (ofl -- OA 18G0077 subsequent Memorandum dated 12.10.2000 was circulated. As per the said Memorandum, Technical personnel who had joined service priar to 01.08.1992 and who had not completed 20 years qualifving service as on 23.07.1996 were permitted to shift from CPF to GPF Scheme. Had the respondents put on notice the OM dated 02.12.1996, the applicant would have exercised his option te switch over to GPF scheme and would not have exercised his option based an the OM dated 12.10.2000. Further there cannot be two different yardsticks in the matter of mode of exercising the option viz. Scientific employees have heen permitted to exercise their option to switch over from CPP to GPP HH their retirement , the same right has to be extended to the technical staff as well.
8. . Regarding the appointment of the applicant, there is no dispute to the fact that the applicant was appointed as Helper Bon 22.01.1973. There is no dispute to the fact that when the applicant joined his services and on confirmation he preferred CPP Scheme on 21.05.1990. Further it is also admitted fact that the Department of Pensions & Pensioner Welfare (DP&PW) issued CLM. dated 210.1992 wherein it was provided that the S&T Personnel will have one qualifying service to switch over from CPE to Pension Scheme or to retain the CPF Scheme as they may wish. It is also admitted fact that the DP&PW reviewed us earlier O.M. dated 12.10.1992 and issued another OM. Dated 23.07.1996 wherein it has been decided to maintain the status quo ante, It is further clear from the pleadings that DAE issued OM dated 12.10.2000, wherein isablé OS LIHAT it has been decided to provide one more option for switching over to GPF/Pension Scheme from CPF tc all Technical Personnel who joined services prior to 01.08.1992 and have not complcted 20 years service as on 23.07.1906 and are still In CPF. In the said O.M. the option was to be exercised within 6 months from the date of issuance of O.M. It is admitted fact by the applicant that the applicant had not exercised option, within prescribed & months from the date of issuance O.M. Although the applicant exercised his option at the time of st his confirmation but later on the applicant has not exercised his option for switching over from CPF to GPF/Pension Scheme in the preseribed periad.
9% The applicant submitted his representation / application for conversion to pension scheme on 12.10.2007 after a lapse of seven years of the issue of the OM dated 12.10.2000. Hence his representation was disposed of vide order dated 11.02.2008 informing that there is no provision to provide 2° option as the said OM dated 12.10.2000 was not applicable to him. Subsequently the applicant fled OA No. 212 of 2008 before this Hon'ble Tribunal against the order dated 11.02.2008 wherein this Hon'ble THbunal vide order dated upheld by Hon'ble High Court in WP No. 29370 of 2608 and Supreme Court in SEPCC) No. 262 12 of 2012,
10. The applicant was riot 8 petitioner in the WP No, 21569 of 2013 and he is not identically placed with the petitioners therein, in as much as the applicant had not submitted his option within the six months from the date of issue of OM e gr ot = Wp af lé OA TPSO2017 dated 12.10.2000. It was alse not one of the grounds of the applicant in his earlier OAAWEYSLP that he had submitted his option within six months and therefore the order passed in that Writ Petition No.21569/2013 is not applicable to the applicant's case, In a plethora of cases, Hon'ble Supreme Court of India has held that the prescription of the time limit is within the policy realm. il. The employees were allowed to switch over from CPF to Pension Scheme in terms of Statutory Rules and QMs issued on the issue from time te time. The decisive factors were whether the applicant has submitted the option within the a ge SE Le eg prescribed time limit specified in the Office Memorandum No. 2/1 0/SCS8/665 dated 12.10.2000 and is fulfilling the conditions stipulated in the said Office Memorandum. The option to switch over te pension scheme is based on the conditions specified in the OMs and not merely on the length of service, Since the applicant has nat fulfilled neither of the stipulated conditions, he was not permitted to switch over ffom CPF to Pension scheme. Hence the question of cut oll date or changing the cut off date does not arise, Supreme Court of India & in the Uol vs M/s. Parameswaran Match Works 1974 AIR 2349, 1975 Sec @) 373 has held that "the choice of a date as a basis for classification cannot always be dubbed as arbitrary even if no particular reason js forthcoming for the choice unless it is shown to be capricious ar whimsical in the cireumsiances". Hon'ble Apes Court in the case of OT Vs. PN 'Menon, 1994 SCC (L&S) 860, held that "any revised scheme if implemented with a cut off date, which can be held to bs reasonable and rational need mot be held to be invalid'. Ia ane of the recent i " oo if af 18 OA TPOQR201 7 judgements Le. Rajasthan Rajya Vidyut Vitran Nigam Lid. vs. Dowwaraka Prasad BRoolwal (2015) 12 SCC Si, The Apex Court has in respect of such switch over from CPF to pension acheme has held as under:-
"No employee can switch over back and forth from one scheme ta another ax per his convenience. Once an enpleyee has chosen to be a part of a partiowar scheme, be continues fo remain a member op tag scheme unless an option ta switch over to another eo © ache is given fo fin.
12. Admittedly, the applicant has chasen not to avail of the opportunity for such a switch over within the time calendered in the Q.M.. Tis also clear from the 'affidavit of the replying respondents that wide publicity has been given regarding the OM dated 12.10.2000 and it is clear from the affidavit of the replying respondents that mary personnel have opted for pension scheme as per GM dated 12.10.2000. The OM dated 23.07.1996 was communicated to all the employees of IGCAR vide IGCAR Cireular No. ROCAR/Gen/PLO6 dated sancti ting etunnna ae rinns eeagyn er etneenrnatenn ner ten ont eben ented ThE TEE EEE TE ORE ET ORE noon er rr riraat cero Group Directors / Associate Directors { Heads of Divisions / Heads of Sections, So the submission made by the applicant that there was no wide publicity regarding OMs dated 23.07.1996 and 12.10.2000 are not sustainable and that cannot be believed at all.
13. The Scientific and Technical cadres are different based on the nature of duties, educational qualification, managerial responsibilities handled and hence yey Y [Saf ld OVA T7ROOTF carinot be treated as similarly placed. Hence, the adoption of different yardsticks based on intelligent differentia is well within the four corners of the Constitution and hence are not a violation of Articles 14 or 16. Purther, as evident from various memoranda referred to in the preceding paragraphs, there have always been separate schemes for Scientific and Technical persennel.
I4. Further, no comparision can be made with the employees of the Department of Space as the purpose and functioning of both the departments are different. Having not acted on the OM dt. 23.07.1996 and 12.10.2000 thereby not availing the opportunity of exercising fresh option, the applicant is now _ Wrongly comparing his case with that of the Dept. of Space.
13. 'The applicant is not entitled to switch over to pension scheme (GPF) from CPF scheme due to the following grounds:
a He had opted specifically to continue in CPP scheme at the time of confirmation.
b. He had taken conscious decision to om for CPP scheme "aller having understood the comparative advantages and pensionable scheme) and General Provident Fund GOPFY".
ec 'The OA Ne. 212 of 2008 filed and appealed by the applicant before the Hon'ble High Court of Madras against the order of this Hon'ble Tribunal dated 08.05.2008 in OA No, 212 of 2008 was upheld and dismissed by the Hon'ble High Court oS Sy 16 of 18 OA (7902017 vide ns order dated 02.11 2011. Further an appeal before Hon'ble supreme Court of India against the order dated O2.11.2011 of this Hon'ble Mich Court by filing Special Leave Petition (SLP) No. 26212 of 2012 (CC F777/2012) was dismissed by Hon'ble Supreme Court, New Delhi vide its onder dated 23.10.2014, gd. Nedal Ministry DP & PW wide their note no. 20/1/200- P&PWER) dated 25.01.2017 sonveyed the orders of the «
- Gavermment of India for not agreeing ty the switch over, communicated the following reasons for the decision viz., i. The technical cadre employees of DAP had opted for CPP scheme on the hasis of OMs issued by this s Department knowing well that the option once i, Al new entrants te Government services wef, OQLOD200. sre no longer covered by the pension & 5 p scheme.
16. In view of the above. fam af the view that there is no merit in this OA and resultantly this OA Is dismissed. No order as to casts, ASSO S TEASE EE eee us tag gaeeeecaecaeeeeeeesenigntw sree Posty, en rr,