Madras High Court
Esther Xavier vs Union Of India on 23 August, 2018
Author: M.Duraiswamy
Bench: V.K.Tahilramani, M.Duraiswamy
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.08.2018 CORAM : The Hon'ble Mrs.V.K.TAHILRAMANI, CHIEF JUSTICE AND The Hon'ble Mr.JUSTICE M.DURAISWAMY W.P. No.16467 of 2017 Esther Xavier .. Petitioner -vs- 1.Union of India, rep. by The Commissioner, Kendriya Vidyalaya Sangathan, Head Quarters, 18 Institutional Area, Shahid Jeetsingh Marg, New Delhi 110 016. 2.The Deputy Commissioner, Kendriya Vidyalaya Sangathan, Chennai Region, IIT Campus, Chennai 600 036. 3.The Registrar, Central Administrative Tribunal, Madras Bench, Chennai 600 104. .. Respondents Petition filed under Article 226 of the Constitution of India praying for issue of Writ of Certiorari Mandamus calling for the records relating to the order in O.A.No.219/2012 dated 31.8.2012 passed by the 3rd respondent Tribunal and quash the same as illegal and direct the 1st and 2nd respondents to extend the pension benefits to the petitioner in terms of 1st respondent's policy bearing Office Memorandum No.F.No.152-1/79-80/KVS/Budget/Part-II dated 1.9.1988. For Petitioner : Mr.R.Arumugam For Respondents : Mr.M.Vaidyanathan for respondents 1 and 2 ORDER
(Order of the Court made by The Hon'ble Chief Justice) This writ petition has been filed against the order dated 31.8.2002 passed by the Central Administrative Tribunal, Madras Bench, Chennai, in O.A.No.219 of 2012, dismissing the O.A. of the petitioner along with three other O.As. The petitioner had approached the Tribunal seeking the following relief:
For a declaration that the action of the second respondent in rejecting the representation of the petitioner that she should be covered by the first respondent's O.M. in F.No.152-1/79-80/KVS/Budget/Part-II, dated 01.9.1988 with effect from 01.2.1989 and further to direct the respondents 1 and 2 to declare that the petitioner is deemed to have come under the General Provident Fund (Pension Scheme) in terms of the policy communicated under the said O.M.
2. The petitioner joined service in Kendriya Vidyalaya Sangathan (in short, 'KVS') on 24.8.1983 as a Primary Teacher on regular basis and became member of Contributory Provident Fund Scheme (in short, 'CPF Scheme') as per the then existing policy of KVS. For the first time, the Government of India, introduced General Provident Fund (Pension) Scheme (in short, 'GPF Scheme') on 01.9.1988. As per the GPF Scheme, the employees who did not exercise their option by 31.01.1989 would automatically get shifted to the new GPF Scheme and only employees who want to remain with CPF Scheme were required to exercise their option. This factual position is not disputed.
3. It appears that for some reason, the petitioner was continued in CPF Scheme. However, periodically, the petitioner was admittedly representing to the competent authority for conversion of her option to GPF Scheme. Number of representations have been addressed by the petitioner for conversion to GPF Scheme from 12.07.1997 to 06.10.2008. According to the petitioner, thereafter, also she had sent representations. However, the representations of the petitioner had not been considered positively in relation to the GPF Scheme, due to which, the petitioner had approached the Tribunal seeking the aforesaid relief.
4. Learned counsel appearing for the respondents 1 and 2 contended that the conduct of the petitioner would show that she had opted for CPF Scheme. However, the learned counsel for the respondents 1 and 2 was unable to produce any document to show that there was indeed option exercised by the petitioner to remain in CPF Scheme. In the absence of any such document, this Court cannot conclude that the petitioner had exercised her option to remain in CPF Scheme. On the other hand, admittedly there were several representations addressed by the petitioner to the competent authority over a period of time, starting from 1997 till 2008. Thus, in the absence of any option exercised by the petitioner in favour of CPF Scheme, it has to be construed that the petitioner is deemed to have come over to GPF Scheme. The law is well settled that in the absence of specific option exercised by the employee towards CPF Scheme, the employee is deemed to have come over to GPF Scheme.
5. The Tribunal had held that the benefit of the judgment of the Central Administrative Tribunal, Ernakulam Bench in O.A.No.297 of 2011, dated 30.11.2011 was applicable to the case of the petitioner. Hence, the respondents were directed to grant the benefit of the judgment in O.A.No.297 of 2011, subject to the outcome of O.P.(CAT) No.956 of 2012 (Z) before the High Court of Kerala at Ernakulam. However, it is an admitted fact that a Division Bench of this Court had an occasion to consider the similar issue on similar facts in the case of N.Subramanian v. Commissioner, reported in 2017 STPL 9496 Madras. In the said case, it was held by the Division Bench of this Court that in the absence of specific option exercised by the employee towards CPF Scheme, the employee was deemed to have come over to GPF Scheme.
6. In this view of the matter, the respondents 1 and 2 are directed to convert the petitioner as pensioner under GPF Scheme forthwith and calculate and pay the revised pension, including arrears for which, she became eligible by such conversion. At the same time, the petitioner is also directed to refund the amount received by her towards CPF Scheme with simple interest at 9% per annum from the date when she received the same till the date of payment. It is also made clear that arrears of pension payable to the petitioner under GPF Scheme may be adjusted towards refund of the Provident Fund amounts received by the petitioner with interest. The respondents 1 and 2 and the petitioner are directed to complete the aforesaid exercise within a period of three months from the date of receipt of a copy of this order.
7. With the above observation, the writ petition is disposed. No costs.
(V.K.T., CJ.) (M.D., J.)
23.08.2018
Index : Yes/No
Internet : Yes
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To
1.The Commissioner,
Kendriya Vidyalaya Sangathan,
Head Quarters, 18 Institutional Area,
Shahid Jeetsingh Marg,
New Delhi 110 016.
2.The Deputy Commissioner,
Kendriya Vidyalaya Sangathan,
Chennai Region, IIT Campus,
Chennai 600 036.
3.The Registrar,
Central Administrative Tribunal,
Madras Bench,
Chennai 600 104.
The Hon'ble Chief Justice
and
M.Duraiswamy, J.
bbr
W.P.No.16467 of 2017
23.08.2018