Indian Kanoon - Search engine for Indian Law

Central Administrative Tribunal - Madras

A Ponnuraj vs D/O Atomic Energy on 9 November, 2023

1 OA 704/2019

CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH

OA NO.704/2019

Dated Thursday, the 9" day of November, Two Thousand Twenty Three

CORUM:
HON'BLE MS. LATA BASWARAJ PATNE, JUDICIAL MEMBER

&
HON'BLE MR.VARUN SINDHU KUL KAUMUDI, MEMBER(A)

A.Ponnuraj,

S/a.S.Anbatah,

No.7, "Malligai", DAE Township,

Kancheepuram 603 102. - Applicant

By Advocate M/s T.N.Sugesh
Vs.

1.Union of India, rep., by the Secretary,
Department of Atomic Energy, Government of India,
Anushakthi Bhavan, CSM Marg, Mumbai 400 001

2.The Director,

Indira Gandhi Centre for Atomic Research (IGCAR),
Department of Atomic Energy, Kalpakkam,
Kancheepuram 603 102

3.The Under Secretary,

Department of Pension & Pensioners Welfare,
Ministry of Personnel, Public Grievances & Pensions,
Government of India, 3 Floor, Lok Nayak Bhavan,
Khan Market, New Delhi 110 003.

4,.The Director, Department of Pension and Pensioners Welfare,
3" Floor, Lok Nayak Bhavan, Khan Market, New Delhi 110 003.

5.The Administrative Officer,

Indira Gandhi Centre for Atomic Research (IGCAR),

Department of Atomic Energy, Kalpakkam,
Kancheepuram 603 102. Respondents

By Advocate Mr. J.Vasu

RET



a)

2 OA 704/2019

ORDER

(Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Member(J)) By this OA, the applicant Is seeking the following relief:

"To call for the records relating to the impugned order of the 5" respondentin Ref No. IGCAR/Estt-Il/CED/5028/2018/469 dated 28.11.2018 and the order passed by the third respondent in No.20/1/2000-P&PW(F) dated 25.01.2017 and set aside the same and direct the respondents to permit the applicant to switch over from the existing Contributory Provident Scheme (CPF) to the Pension Scheme, namely, General Provident Scheme (GPF) and grant him all consequential benefits and thus render justice,."

2. The brief facts of the case, in a nutshell, are as under:

The applicant was appointed in the respondent institution on 13.05.1985 as Draughtsman-B when the CPF scheme was in operation. Subsequently, he was promoted as Draughtsman-C on 01.11.1990, Draughtsman-D on 01.11.1996, Draughtsman-E on 01.11.2001, Scientific Assistant-F on 01.11.2007 and as Scientific Assistant-G on 01.07.2015 and he is working as such. The applicant submits that, at the time of his confirmation in service, he had exercised an option to retain the Contributory Provident Fund (CPF) benefits, vide his option, dated 10.06.1991. By OM, dated 12.10.1992, the 37 respondent allowed change over from CPG to GPF in terms of a uniform policy for Scientific and Technical personnel under which the applicant derived a right to exercise the aption of moving over from CPF to GPF within 20 years of qualifying service from the date of entering service. However, the OM was withdrawn by a subsequent OM, dated 23.07.1996, with respect to persons who had joined service before 01.08.1992, thereby, depriving the applicant of such an option. Thereafter, the Department of Atomic Energy, by an OM, dated October 12, 2000, decided to extend one more final option to all the Technical Personnel of the department who had joined prior to 3 OA 704/2019 01.08.1992 and had not completed 20 years of service and were still under CPF to move over to the pension scheme, as a special case. The option had to be exercised within a period of six months from the date of issue of the OM. The grievance of the applicant is that the OM, dated 12.10.2000, of the 1* respondent was never brought to the notice of the applicant and several other persons In his category, as a result of which, they could not exercise the option within the prescribed time limit of six months. While so, the Government of India, on 04.10.2007, issued an OM, clarifying that the technical employees who have been promoted to the scientific posts prior to 01.08.1992 are eligible to exercise the option to change over to pension scheme at any time before retirement. However, such benefits were not extended to the Technical employees who continued in Technical posts. The applicant contended that the decision of the respondents was discriminatory in the light of such option allegedly allowed for persons coming under the scientific category without any time restriction and those who moved from technical to scientific stream on promotion within a time limit of 20 years.

Such discrimination is not permissible, being violative of Article 16 of the Constitution of India. On his confirmation in service, the applicant had exercised the option to retain the CPF benefits, vide his option, dated 10.06.1991. On 25.06.2018, the applicant made a representation, seeking permission to switch over to the Pension Scheme from the existing CPF Scheme but, the 5% respondent, vide order, dated 28.11.2018, rejected the said representation of the applicant. While submitting his case, the applicant has relied upon the OM issued by the respondent office with regard to switching over the options from CPF to Pension and vice versa, issued on 17.04.1964, 17.01.1967, 31.07.1992, 12.10.1992, 23.07.1996, 12.10.2000, 08.05.2006 & 04.10.2007. The applicant also contended that, in respect of 4 OA 704/2019 Technical & Scientific Personnel, the relevant OMs are of 1992, 1996 & 2000, which provided for exercise of option for switch over from CPF Scheme to GPF Scheme subject to the conditions stipulated therein. According to the OM, dated 12.10.2000, the option has to be exercised within six months from the date of the said OM along with other conditions, as prescribed. The applicant has placed his reliance upon the order passed by the Hon'ble High court of Madras wherein direction has been given to the respondent to consider the cases of the applicants therein for switching over the options. The applicant has pleaded that though the respondents have considered the claim of one Mr.O.Ponniah and Mr.A.M.Baskaran, who are similarly situated they have rejected the claim of the applicant which is a clear act of discrimination, arbitrary and contrary to the law. Moreover, no notice or intimation was served individually as the respondents have not been made aware about the above said OM widely. In the said circumstances, the rejection order passed by the respondents is illegal, unreasonable and needs to be quashed and set aside with a direction to permit the applicant to switch over from the existing Contributory Provident Fund Scheme to the General Provident Fund Scheme and for granting all the consequential benefits. In support of his contention, the applicant has relied upon the following judgments:

(i}Judgment of the Hon'ble Supreme court in the case of Dakshin Haryana Bijli Vitran Nigam & Ors Vs. Bachan Singh dated 30.07.2009 (2009) 14 SCC 793.

(Giij)Judgment of the Hon'ble Delhi High Court in the case of Smt.Shashi Kiran & Ors. Vs. UOR & Ors dated 24.08.2016

4. After notice, the respondents have entered appearance through their 5 OA 704/2019 counsel and filed their counter and refuted ail the allegations made by the applicant in the OA opposing the relief claimed by the applicant. The respondents have submitted that the applicant, on his confirmation, with full knowledge, had specifically exercised his option on 10.06.1991 and opted to retain CPF with a statement indicating clearly that he had taken a conscious decision to opt for the CPF scheme "after having understood the comparative advantages and disadvantages of CPF (non-pensionable scheme) and GPF".

The respondents have also submitted that in the matter of Shri O.Ponniah and Shri A.M.Baskaran, they are not similarly placed, because they are from the scientific wing and because of their work profile. Shri O.Ponniah in his option form, dated 23.08.1993, had stated that he will exercise the option before completion of 20 years of qualifying service and he has not submitted his option, either to continue under the CPF or switch over to the GPF. Also, the clause regarding the option for those who have joined after 01.08.1992 to retain CPF or to switch over to GPF, within 20 years of qualifying service, has been withdrawn by OM, dated 23.07.1996. Accordingly, OM, dated 10.12.1992, was withdrawn, On 23.07.1996, DP&PW issued another OM, thereby providing an option to retain CPF or to switch over to GPF, within 20 years of qualifying service, to those Government servants who have joined service after 01.08.1992. Vide this OM, earlier OM, dated 12.10.1992, was withdrawn and status quo ante was restored in respect of those who had joined before 01.08.1992, like Shri O.Ponniah. Thus, in the case of Shri O,Ponniah, the option submitted by him earlier on 23.08.1993 became infructuous on account of issuance of DP&PW OM, dated 23.07.1992. Therefore, an order was issued by the BARC Facilities on 03.10.2012 to the effect that, in terms of OM, dated 17.01.1961, Shri O.Ponniah was deemed to have opted for pension w.e.f the date of his confirmation, i.e., 20.04.1993.

The case of the applicant and that of Shri O.Ponniah are entirely different. In the case of Shri A.M.Baskaran he had filed OA 1390/2016 praying to switch over from the existing CPF to GPF. He was an employee of another R&D unit of DAE, namely BARC, and not an employee in the establishment of the 2°4 respondent. Besides, the said OM, dated 12/10/2000 had inadvertently not been circulated among the employees posted in the workplace/Division where Shri A.M.Baskaran was working and, therefore, Shri A.M.Baskaran could not exercise his option and, thus, he was placed in a disadvantageous position. Hence, an opportunity was ordered to be extended to him, relaxing the time limit. The case of the applicant is, therefore, distinct from that of Shri A.M.Baskaran, as the OM, dated 12/10/2000, had been circulated among all the employees in the establishment of the 274 respondent wherein the applicant worked and in pursuance to the said OM, 85 employees of IGCAR had opted for conversion from CPF to Pension Scheme. The respondents have also contended that the submission made by the applicant as well as one of the grounds which Is raised by the applicant, that the OM, dated 12.10.2000, was not brought to the notice of the employees, is not acceptable, because the same had been displayed on the notice board in the office of the applicant, thereby 85 employees from the same office, where the applicant was working, have exercised their option pursuant to the said OM. The applicant had chosen not to exercise his option as he haf already opted for CPF which was beneficial to him. To support the said contention, the respondents have placed their reliance upon the order passed by the Hon'ble Supreme Court in the matter of Kusheshwar Prasad Singh Vs. State of Bihar & Ors in Appeal (Civil) No.7351 of 2000 that "It is settled Principle of Law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law.

Thus the maxim Nullus Commodum Capere Potest de injuria sua propia squarely applies to the present case. The respondents have also contended that, in the case of Shri Y.B.S.R.Prasad, N.S.Banerjee and A.M.Kakre, those employees were all scientific officers who were ruled by different instructions. Scientific officers were allowed to exercise their option once any time before retirement. As per the OM, dated 04.10.2007, the applicant had not been promoted to the scientific posts prior to 01.08.1992 and, hence, he is not similarly situated with those officersf/employees. In support of their contentions, the respondents have relied upon the following judgments:-

(i)Judgment of Hon'ble Supreme Court in Krishena Kumar Vs. UOT CDJ 1990 SC 798.

(ii)Order of this Tribunal in OA No.212/2008 dated 08.05.2008 upheld by the Hon'ble High court of Madras in WP 29371/2008 in order dated 02.11.2011 and by the Hon'ble Supreme Court of India in CA No.26212/2012 in order dated 18.10.2013.

(iii) Judgment of the Hon'ble Supreme Court in Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh & Ors in C.A.No.4405/2011, dated 12.05.2011

(iv)Judgment of Hon'ble Supreme Court of India in CA 7148/2008 dated 13.11.2013 in the matter of Calcutta Port Trust & Ors Vs. Anadi Kumar Das & Anr

(v)Judgment of Hon'ble Supreme Court of India in CA No. 7483/2014 in the matter of Rajasthan Rajya Vidyut Vitran Nigam Ltd Vs. Dwarka Prasad Koolwal & Ors dated 07.08.2014

(vi)Judgment of Hon'ble Supreme Court of India in CA No.3842/2011 in the matter of Pepsu Road Transport Corporation, Patiala Vs. CI 8 OA 704/2019 Amandeep Singh & Ors dated 03.01.2017

(vii)Judgment of Hon'ble Delhi High Court in WP 6747/2014 along with other connected matters in the matter of Rajiv Raizada Vs. UOT & Ors dated 05.07.2021

5. Heard learned counsels, Mr.T.N.Sugesh, for the applicant and MrJ.Vasu, for the respondents and perused the OA along with relevant records.

6. We have examined the facts of the case placed before us and considered the submissions advanced by both the sides. It seems that time and again against the direction issued by the Hon'ble High Court, the issue pertaining to exercise of option for switching over from CPF to GPF has been considered by the respondents. A proposal had been initiated in respect of technical personnel of BARC who had joined service prior to 01.08.1992 and not specifically opted to continue in CPF, The same had been re-examined by the BARC Personnel Division and it was confirmed that, since no option was exercised by them on confirmation, they are automatically deemed to have opted for the Pension scheme on confirmation, by virtue of the provisions of the OM, dated 17.01.1961. The respondent competent authority has reconsidered the issue upon recommendation from the Committee in respect of transfer of 393 CPF holders to change over to GPF scheme and submitted a proposal to the Nodal Ministry of DP&PW. However, the Nodal Ministry, vide their Note, dated 25.01.2017, intimated that all the 393 technical cadre employees of DAE had opted for the CPF scheme on the basis of the OMs issued by the Department, knowing well that the option, once exercised, shall be final and that all new entrants to Government service, w.e.f 01.01.2004, are also no longer covered by the pension scheme. Hence, the proposal of the Department of Atomic Energy (DAE) 9 OA 704/2019 was examined in consultation with the Department of Expenditure and had not been agreed to on 25.01.2017.

7. It is also to be noted that, because the said circular, dated 12.10.2000, had not been brought to their notice, employees of the sctentific wing had not exercised their option. Therefore, by an administrative decision, no objection has been issued to the said Shri A.M.Baskaran to switch over from CPF to GPF Scheme and that, too, in line with the recommendation of the National Commission for Scheduled Castes. It is to be noted that the applicant who had exercised his option in the year 1991 had taken a conscious decision to opt for the CPF scheme and the same is not in dispute. It is also to be noted that, in response to the representation filed by the applicant, the respondents have passed a detailed speaking and reasoned order, dated 28.11.2018, considering all the points raised by the applicant. While passing the said speaking order, It is also mentioned that the said OM, dated 12.10.2000 ,was circulated to all the employees, vide circular, dated 01.11.2000. The OM was given wide publicity in the IGCAR by displaying it on all the notice boards and also with copies endorsed to all the Group Directors/Associate Directors/Heads of Divistons/Heads of Sections and recognised Associations. It is also mentioned that, in response to the said OM, a total number of 85 technical employees of the particular centre, where the applicant was working, exercised their options to switch over from the CPF scheme to the GPF scheme. However, the applicant failed to exercise his option to switch over from the CPF scheme to the GPF scheme and as a result continued to remain under the CPF scheme.

8. It is also to be noted that, for the first time in the year 2018, the applicant has raised his claim. The contention of the applicant that similarly 10 OA 704/2019 situated persons have approached this Tribunal and got the relief shows that the applicant is a fence sitter. The applicant himself has admitted that some of the employees had approached this Tribunal whose cases were rejected and, thereafter, when they challenged the order passed by this Tribunal before the Hon'ble High Court in a WP, wherein the issue being a policy decision, the Hon'ble High Court had given merely directions to 'consider the case of the petitioners therein. The same was considered by the respondent department and rejected. With regard to the claim of the applicant, at par with that of Mr.O.Ponniah, MrA.M.Baskaran and others, as they are not similarly placed with the applicant, there is no question of parity.

9. Kt is also to be noted that, when the said speaking order, dated 28.11.2018, has been challenged by the applicant in the present OA, Para VI of the said speaking order has not been specifically disputed except making the statement that no notice or intimation was served individually. Para VI of the order, dated 07.05.2019, is extracted hereunder:

"DAE, in consultation with DP&PW, extended one more final option to all technical personnel in the Department who had joined service prior to 01.08.1992 and had not completed 20 years of service and still in CPF scheme to come over to Pension Scheme as a "Special Case", vide OM No.2/1/99/SCS/665, dated 12.10.2000. The option was to be exercised within a period of 6 months from the date of issue of the OM i.e., on or before 11/04/2001. The said DAE OM was circulated to all employees of IGCAR vide circular No.IGCAR/CPF/P1/2000 dated 01.11.2000. The OM too was given wide publicity in IGCAR by displaying on all Notice Boards and also with copies being endorsed to ail Group Directors/Associate Directors/Heads of Division/Heads of Section and Recognised Associations. In response to the DAE OM dated 12.10.2000, a total of Eighty Five (85) Technical employees of this Research Centre exercised their options to switch over from CPF scheme to Pension scheme. However, Shri Ponnuraj, again failed to exercise his option to switch over from CPF scheme to Pensions scheme and as a result continued to remain under the CPF scheme."

10. [tis to be stated that under the said OM, dated 12.10.2000, option had 11 OA 704/2019 to be exercised within a period of six months, I.e., on or before 11.04.2001, but the applicant raised his objection in the year 2018. Therefore, the applicant cannot have a claim after over a period of 18 years of delay. it is also to be noted that in the matter of policy decisions, wherein financial implications are involved, it is for the employee concerned to raise his right over the said claim in time.

1i. The applicant has relied upon the order passed by the Hon'ble Supreme Court in the matter of Dakshin Haryana Bijli Vitran Nigam & Ors Vs. Bachan Singh dated 30.07.2009 wherein the facts are not similar and the ratio is also not the same. In the said case, the circular stating that, after regularization of the employee, the service rendered by him, on work-charged basis, would not be counted for pensionary purposes has not been made known to the employee. Therefore, after retirement, he has made the correspondence and, since there was no response, he filed a writ petition and knocked at the doors of the Hon'ble High Court for justice. Considering all the aspects and since the department failed to prove that they have given information about the said circular to the employees, an opportunity has been granted to opt for the said option, accordingly. The applicant has also relied upon the order passed by the Hon'ble Delhi High court in the matter of Smt.Shashi Kiran & Ors. Vs. UOR & Ors dated 24.08.2016. Here also the facts and ratio is altogether different. It is to be noted that all the employees have approached the court at the earliest, While allowing the claim of the employees, the court has also considered when the benefit of the said particular OM referred to in that matter had been extended to all other staff members/employees in their institutions. Therefore, looking at the peculiar facts and circumstances in that particular matter, we find that the same is not applicable in the case of O 12 OA 704/2019 the applicant herein.

11. It is observed that, according to the judgment relied upon by the respondents, i.e., the judgment of the Hon'ble Supreme Court in Krishena Kumar Vs. UOI CD3 1990 SC 798, the Hon'ble Apex court has declined to issue any directions in the matter of expenditure includiblte in the Annual Financial Statement. Similar issue in respect of the claim of the applicant relates to OM, dated 10.12.2000, against the same department. This Tribunal in OA No.212/2008, vide order, dated 08.05.2008, have observed that "When the rules do not provide, this court cannot exercise a discretionary powers to direct the respondents to accept the option exercised by the applicant and grant the benefits to him" The said order has been challenged by the applicant in WP 29371/2008 before the Hon'ble High Court of Madras and the Hon'ble High court, vide order, dated 02.11.2011, upheld the order of this Tribunal. The said order has been tested by the applicant therein before the Hon'ble Supreme Court of India in CA No.26212/2012. While dismissing the SLP, by its order, dated 18.10.2013, the Hon'ble Apex court upheld the order passed by this Tribunal as well as the Hon'ble High court. It is also to be noted that in the matter of Pepsu Road Transport Corporation, Patiala Vs. Mangal Singh & Ors in C.A.No.4405/2011, the Hon'ble Supreme Court, vide order, dated 12.05.2011, considered the delay in respect of raising the claim over the availability of option. It has been held that a person who is aware of the availability of the option cannot contend that he was not served a written notice of the availability of the option after 22 years. Therefore, the failure on the part of the employee to opt for the pension scheme in time will disentitle him from claiming any benefit under the Pension Scheme. Itis also held by the Hon'ble Supreme Court of India, vide its order, dated 13.11.2013, passed in CA 7148/2008 in the matter of Calcutta Port Trust & Ors Vs. Anadi Kumar Das & Anr that since the employee has not pleaded that he was not aware of the said OM itself against which he is claiming the benefit and that being the position, it is not possible to accept the Hon'ble Supreme Court of India in CA No, 7483/2014 in the matter of Rajasthan Rajya Vidyut Vitran Nigam Ltd Vs. Dwarka Prasad Koolwal 13 OA 704/2019 plea of the employee that he had not been served with the OM. The & Ors vide its order, dated 07.08.2014, has held thus:

12.

their order, dated 03.01.2017, in CA No.3842/2011 in the matter of Pepsu Road Transport Corporation, Patiala Vs. Amandeep Singh & 68, The right of an employee to switch over was, therefore, limited in time by the Pension and GPF Regulations. However, administrative orders issued by the RSEB from time to time extended the period for exercising the option. No employee had any inherent right to either demand an extension of the period for exercising the switch-over option or claim a right to exercise the switch-over option at any time prior to his retirement, and no such right has been shown to us.

69. But, learned counsel for the respondents finally submitted that pension is not a charity or a bounty and an employee is entitled to earn his pension. There can be no doubt about this proposition but when two schemes are available to an employee, one being the CPF Scheme and the other being the Pension Scheme, it is for the employee to choose the scheme that he feels more comfortable with and appropriate for his purposes. No employee can switch over back and forth from one scheme to another as per his convenience. Once an employee has chosen to be a part of a particular scheme, he continues to remain a member of that scheme unless an option to switch over to another scheme is given to him.

70. Insofar as the present appeals are concerned, the respondents who are members of the CPF Scheme were given several opportunities of switching over to the Pension Scheme and the GPF Scheme under the Pension Regulations and the GPF Regulations respectively but they chose not to do so. The question whether under these circumstances pension is a bounty or a charity becomes completely irrelevant. The entitlement to pension was available to the respondents but they chose not to avail the entitlement for reasons personal to them. Having taken a decision in this regard the respondents cannot now raise an argument of pension not being a bounty and therefore requiring the RSEB to give them another option to switch over to the Pension and GPF Regulations It is also to be noted that the Hon'ble Supreme Court of India by Ors, has held as under:

a 14 OA 704/2019

23. In view of the above, it is well settled that the notice inviting option need not to be personally served to the employees unless the Regulation or any instruction so provides. The Regulations 1992 which are being considered in the present case had already been interpreted in PEPSU Road Transport Corporation vs. Mangal Singh as noticed above. This Court having already held that Regulations 1992 do not contemplate any personal service of notice to employees the finding in the judgment of the courts below holding otherwise for decreeing the suit of the plaintiff are unsustainable. From the facts of the present case it is clear that although Regulations were in force from 1992, plaintiff retired on 30th November, 2011 and after retirement received CPF benefits without any protest and at no point of time before retirement he has raised any grievance. The benefit which was available to him under CPF scheme was received by the plaintiff, he cannot be allowed to another benefit flowing from the pension scheme which he never opted. Extending benefit of the pension scheme to the plaintiff shall be extending double benefits- CPF benefit as well as pension scheme which was never contemplated by the Regulations. In any view of the matter, the issue in the present case is covered by the judgment in PEPSU Road Transport Corporation vs. Mangal Singh (supra} and we de not propose to take any different view in the matter. Learned counsel for the respondents has also contended that in so far as the outstanding amount of CPF is concerned the said amount could have been deducted by virtue of Regulation 24 and which amount is to be adjusted against death- cum-retirement gratuity, In the present case the plaintiff having not opted for pension scheme, the requirement from refunding the advance taken from CPF within six months is not attracted. More so, in the present case as has been stated by the appellant in the written statement in the suit even after retirement an amount of Rs.4999/- was due from the advance taken by the respondents from his CPF amount.

13. It is also to be noted that the Hon'ble Delhi High Court in WP 6747/2014 along with other connected matters in the matter of Rajiv Raizada Vs. UOI & Ors, vide order, dated 05.07.2021, has held as under:

"101/14.4 Having regard to these crucial facts, the Supreme Court reversed the view both of the Central Administrative Tribunal and the High Court since the petitioner had failed to exercise his option for switch over within the time accorded in that behalf by the applicable scheme."

14. Admittedly the issue involved tn the matter has attained finality against "the employee and the order, dated 08.05.2008, passed by this Tribunal in OA 212/2008 in the case of P.Sundaramurthy, one of the employees, who was placed similarly as the applicant, has attained finality since the said order has been upheld by the Hon'ble Supreme Court of India. Further, this Tribunal, vide order, dated 15.11.2022, in OA No.1238/2019 & Batch, 15 OA 704/2019 dismissed a similar claim. Therefore, we are of the considered view that it is a policy matter and the same has been already considered by this Tribunal and attained finality. Hence, in view of the said position as well as on the grounds of delay and latches, the applicant is not entitled to any relief as prayed for. OA is dismissed. No order as to costs.