Central Administrative Tribunal - Jaipur
Shiv Charan Khandelwal vs Kendriya Vidyalaya Sanghthan on 27 September, 2022
1
OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 611/2019,
ORIGINAL APPLICATION NO. 402/2019
&
ORIGINAL APPLICATION NO. 541/2019
Order reserved on 21.09.2022
DATE OF ORDER: 27.09.2022
CORAM
HON'BLE MR. DINESH SHARMA, ADMINISTRATIVE MEMBER
HON'BLE MRS. HINA P. SHAH, JUDICIAL MEMBER
OA No. 611/2019
Ashwani Trikha wife of Shri Ashok Kumar Trikha, aged
about 58 years, R/o 7/242 Malviya Nagar, Jaipur -
302017 (Rajasthan). Presently working as Yoga
Teacher in K.V. No. 3, Jaipur (Rajasthan) Group-B,
(M) 9829625084.
....Applicant
Shri Amit Mathur with Shri Vipul Diwakar, counsels for
applicant.
VERSUS
1. Kendriya Vidyalaya Sangathan (HQ), 18-
Institutional Area, Shaheed Jeet Singh Marg, New
Delhi - 110016 - through its Commissioner.
2. Joint Commissioner (Finance), Kendriya
Vidyalaya Sangathan (HQ), 18-Institutional Area,
Shaheed Jeet Singh Marg, New Delhi - 110016.
.... Respondents
Shri Hawa Singh, counsel for respondents.
2
OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019
OA No. 402/2019
Mahendra Kumar Tiwari S/o Late Shri Jai Krishan
Sharma, aged about 59 years, R/o 4068 Ramchandraji
Temple, Chandpole Bajar, Jaipur-302001 (Rajasthan).
Presently working as Assistant Section Officer in KVS
(Regional Office) Jaipur-302015 (Rajasthan) Group-B,
(M) 9214619639.
....Applicant
Shri Amit Mathur with Shri Vipul Diwakar, counsels for
applicant.
VERSUS
1. Kendriya Vidyalaya Sangathan (HQ), 18-
Institutional Area, Shaheed Jeet Singh Marg, New
Delhi - 110016 - through its Commissioner.
2. Joint Commissioner (Finance), Kendriya
Vidyalaya Sangathan (HQ), 18-Institutional Area,
Shaheed Jeet Singh Marg, New Delhi - 110016.
.... Respondents
Shri V.D. Sharma, counsel for respondents.
OA No. 541/2019
Shiv Charan Khandelwal S/o Shri Phool Chand
Khandelwal, aged about 58 years, R/o 4-B-43
Dadabari Ext. Kota - 324009 (Rajasthan).
Presently working as TGT (P&HE) in KVS at KV Bundi
(Rajasthan) Group-B, (M) 9413007027.
....Applicant
Shri Amit Mathur with Shri Vipul Diwakar, counsels for
applicant.
VERSUS
3
OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019
1. Kendriya Vidyalaya Sangathan (HQ), 18-
Institutional Area, Shaheed Jeet Singh Marg, New
Delhi - 110016 - through its Commissioner.
2. Joint Commissioner (Finance), Kendriya
Vidyalaya Sangathan (HQ), 18-Institutional Area,
Shaheed Jeet Singh Marg, New Delhi - 110016.
3. Deputy Commissioner, Kendriya Vidyalaya
Sangathan, Regional Office, 92 Gandhi Nagar
Marg, Bajaj Nagar, Jaipur - 302015 (Rajasthan).
.... Respondents
Shri V.D. Sharma, counsel for respondents.
ORDER
Per: Hina P. Shah, Judicial Member With the consent of learned counsels for the parties, OA No. 611/2019, OA No. 402/2019 and OA No. 541/2019 are taken up together for disposal as common question of law and facts is involved in the aforesaid cases.
2. For the sake of convenience, brief facts of OA No. 611/2019 are taken up. The OA No. 611/2019 has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 for the following reliefs:-
"(i) That this application may kindly be allowed;
and 4 OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019
(ii) That the Hon'ble Tribunal may quash the letter dated 09-09-2019 issued by the respondents (Annex. A/1).
(iii) That the respondents may be directed to consider the services of the applicant governed by the GPF cum Pension Scheme in pursuant to the Para-3 of OM dated 01- 09-1988 (Annex. A/3).
(iv) That the action of the respondents considering the applicant services governed by the CPF after 01-9-1988 even in absence of any option form be declared illegal.
(v) That the services of the applicant may be declared governed by the GPF and may be held entitle for the retiral / pension benefits under the GPF Scheme.
(vi) Any other order/directions of relief may be granted in favour of the applicant which may be deemed just and proper under the facts and circumstances of this case."
3. The brief facts of the case, (OA No. 611/2019), as stated by the applicant, are that she was initially appointed as Yoga Teacher on 12.03.1982 vide Memorandum dated 01.03.1982 through Direct Recruitment and was posted at K.V. No. 1, Jaipur. After joining on the post of Yoga Teacher, she initially opted for CPF. At present, she is working on the post of Yoga Teacher at K.V. No. 3 Jaipur from 05.05.2007. Prior to 01.01.1986, the employees of KVS had an option to be a member of CPF Scheme or GPF Scheme. As per OM dated 01.09.1988, KVS 5 OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019 employees were allowed for conversion from CPF to GPF Scheme. The applicant further states that as per provisions of OM dated 01.09.1988, all employees of the KVS, who were CPF beneficiaries and were in service as on 01.01.1986 and were still in service on 01.09.1988 were deemed to have been switch over to GPF unless an option was consciously exercised by them to continue under the CPF Scheme if they so desired. The applicant states that she has never submitted any option to continue under CPF Scheme in pursuance to OM dated 01.09.1988, thus, by virtue of Para 3 of OM dated 01.09.1988, the applicant ought to have been considered and governed by the Pension Scheme automatically for which no exercise of any option was required. As her grievance was not redressed and she was not permitted to switch over to GPF, she made application dated 26/27.08.2019 (Annexure A/2) but respondents vide letter/order dated 09.09.2019 (Annexure A/1) informed that the matter for conversion from CPF to GPF cannot be accepted. Therefore, as the action of respondents is arbitrary and illegal, applicant has filed the present Original Application for redressal of her grievance. 6 OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019
4. After issue of notices, the respondents have filed their reply stating that vide KVS OM No. 152-1/79- 80/KVS/Budget/Part. II dated 01.09.1988, persons joining service on or after 01.01.1986 shall be governed by GPF-cum-Pension Scheme and will have no option for CPF Scheme and the employees who would like to continue in CPF Scheme were however required to exercise a clear option to continue in CPF. Since applicant was appointed as Yoga Teacher on 12.03.1982 vide Memorandum dated 01.03.1982 in KVS and opted CPF Scheme and is continuing as on day, but the provisions contained in DOPT OM dated 01.05.1987 are applicable only to Civilian Central Government Employees, who are subscribing to CPF under Contributory Provident Fund Rules (India) 1962. The employees of KVS are not automatically covered by the said OM as KVS is an autonomous/statutory body and in 51st meeting of BOG, KVS held on 31.05.1988, it was decided that KVS will implement mutatis-mutandis the decision taken by GOI on recommendations of 4th Pay Commission for KVS employees for change over from CPF to Pension Scheme as indicated in OM dated 01.05.1987. It was decided that persons joining service on or after 01.01.1986 shall be governed by GPF-cum-Pension 7 OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019 Scheme and will have no option for CPF Scheme and employees who would like to continue in CPF scheme were required to exercise a clear option to continue in CPF. As per OM dated 01.09.1988, KVS had come up with Pension scheme and employees were offered the option of switching over from CPF to GPF cum Pension Scheme. It was made clear that if no option is received by 28.02.1989, the employees were deemed to have switched over to pension scheme. It was also made clear that option exercised shall be final. Hence, there is no question of grant for switching over from CPF to GPF cum Pension Scheme and so her request cannot be considered. There are several documents on the basis of which it is clear that applicant was aware that she is a member of CPF Scheme and not GPF Scheme. Thus, as there is no merit in the case of the applicant, the present O.A. deserves to be dismissed. Respondents relied upon several judgments/orders, which are as under:-
a) Hon'ble Apex Court judgment in Civil Appeal No. 2876 of 2007 (K.V.S. & Ors. vs. Jaspal Kaur & Ors.), decided on 06.06.2007.
b) C.A.T. Principal Bench, New Delhi order dated 16.10.2018 in OA No. 924/2016 (Smt. Shashi Gupta vs. UOI & Anr.).
c) C.A.T. Principal Bench, New Delhi order in the case of Sh. Ram Prit Thakur (OA No. 973/2018).8
OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019
5. The applicant has filed rejoinder denying the submissions of the respondents and reaffirms the submissions made in the O.A. The applicant stated that the issue involved in the present O.A. has already been adjudicated by this Bench of the Tribunal in OA No. 153/2019, OA No. 254/2019, OA No. 04/2020 & OA No. 157/2020. After difference of opinion of two Members of this Bench, the matter was referred to third Member Bench for adjudication. The third Member has adjudicated the issue in favour of the applicant. As the third Member Bench has expressed his view in favour of the applicant, the present O.A. deserves to be allowed. The applicant has placed on record copies of orders dated 17.01.2022 and 26.04.2022, (Annexure A/4 and A/5, respectively), passed in the aforesaid OAs.
6. Heard learned counsels for the parties and examined the pleadings and judgments/orders relied upon by the parties.
7. The applicant as well as the respondents have reiterated their submissions made earlier. 9 OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019
8. The short question which requires our consideration is whether the applicants can be allowed to convert their benefits from CPF to GPF Scheme whether they have given their option or not to continue in CPF scheme.
9. We have seen that the controversy as to whether the applicants should be allowed to convert from CPF Scheme to GPF Scheme has been considered by this Bench of the Tribunal at length in OA No. 153/2019 (Mrs. Gurmail Kaur vs. The Commissioner, KVS & Anr.) and connected matters (OA No. 254/2019, OA No. 04/2020 & OA No. 157/2020). We have gone through the facts and circumstances of the present case as well as the facts and circumstances of the said cases relied upon by the applicants. After going through the order dated 17.01.2022 (Annexure A/4) as well as order dated 26.04.2022 (Annexure A/5), passed by this Bench of the Tribunal in the aforesaid cases, we are of the considered opinion that the present matters are exactly identical to that of the matters decided by this Tribunal and the present matters also covers the issue as dealt with by this Tribunal. It is also seen that the reliefs sought for in 10 OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019 the present OAs are almost similar to that of the aforesaid OAs.
10. After going through the common order dated 17.01.2022 passed by this Tribunal in the case of Mrs. Gurmail Kaur vs. The Commissioner, KVS & Anr. (OA No. 153/2019) and connected matters (supra), we have seen that since this Bench of the Tribunal felt that decisions of two Members of this Tribunal was contrary to each other, therefore, the matter was referred to Hon'ble Chairman on administrative side for nominating a third Member or constituting a Full Bench to consider this matter since this involves issue having all India application for large number of employees. Thereafter, the Hon'ble Chairman nominated a third Member to consider the issue. Thereafter, after perusing the pleadings on record, going through the judgments referred and considering the submissions of the parties, third Member was in agreement with the common order / judgment dated 17.01.2022 passed by the Member (J) in the aforesaid OAs. The relevant observations / discussions of the third Member read as under: -
"16. The Hon'ble Member (J) in para 14 of the aforesaid common Order/Judgment dated 17.1.2022 has come to a conclusion that the facts of the case are almost identical 11 OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019 and that the judgment passed by the Hon'ble High Court of Rajasthan in the case of Gajendra Singh Rathore (supra) now cannot be said to be judgment per incuriam.
With regard to the objection of delay/laches, the Hon'ble Member (J) in para 16 of the aforesaid common Order/Judgment dated 17.1.2022 has recorded that the applicant is claiming benefits as per OM dated 01.09.1988, wherein he is incurring loss in pensionary benefits and, thus, there is no question of any delay. On merit, a finding has been given by the Hon'ble Member (J) in para 16 that no reasons have been mentioned by the Respondents in any of their replies as to why the services of the Applicants are not governed by the provisions of the OM dated 01.09.1988 and only ground for rejection by the respondents is that 'only those employees who are appointed after 01.01.1986 and before 31.12.2003, are entitled for submitting option for conversion from CPF to GPF and as Applicant has been appointed prior to 1986, he is not entitled for conversion from CPF to GPF scheme. The Hon'ble Member (J) has further observed that it is clear that the Respondents have misinterpreted the Scheme of 01.09.1988 and as the impugned orders in challenge are in clear violation of the OM dated 01.09.1988, the present OA deserves to be allowed and the applicant be allowed by Respondents to switch over from CPF Scheme to GPF Scheme.
17. Though the facts have not been in dispute in the aforesaid dissenting common Order/Judgment, however, the Hon'ble Member (A), disagreed with the Order/Judgment of the Hon'ble Member (J) on the ground that in a case with almost similar facts, recently, a Single Bench of this Tribunal vide Order/Judgment dated 21.12.2021 in Bela Agarwal (supra) has came to the opposite conclusion. In para 20 of the aforesaid dissenting common Order/Judgment dated 17.1.2022, the Hon'ble Member (A) has given a finding that in the case of Bela Agarwal (supra), the Tribunal did not follow the judgment of the Hon'ble High Court of Rajasthan in the case of Gajendra Singh Rathore (supra), not only because it considered to be the judgment per incuriam (since there is no mention of earlier Hon'ble Apex Court judgment in Jaspal Kaur (supra) but also because in the case of Gajendra Singh Rathore (supra), not filing of option was mentioned as an admitted fact. With further finding that in Bela Agarwal case (supra), the Single Bench after discussing all the decisions produced before it (for and against allowing such requests) decided against allowing such conversion at a late stage and dismissed the applicants' claim on ground of it being barred by limitation and also on account of lack of merit.
18. There is no dispute about the fact that it was not necessary to opt for GPF-cum-Pension Scheme, if an employee did not opt for continuing in CPF Scheme, he/she got automatically transferred to GPF Scheme. 12 OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019
19. In Bela Agarwal (supra) the Hon'ble Single Member decided against allowing conversion from CPF Scheme to GPF Scheme on the ground of being barred by limitation and also on account of lack of merit. In Bela Agarwal (supra) is based on the judgment of the Hon'ble Supreme Court in Jaspal Kaur (supra). In para 20 of the common Order/Judgment dated 17.1.2022, a few judgments of Ernakulam Bench and Principal Bench of this Tribunal, Hon'ble High Court of Delhi and Jaipur Bench of this Tribunal have also been referred to, wherein requests for such conversion from CPF to GPF has been disallowed.
20. From the aforesaid, the issue arises:-
(i) as to whether the judgment of this Tribunal in Bela Agarwal 's case (supra) is required to be followed or the judgments passed by various Hon'ble High Courts wherein besides other judgments of Hon'ble Supreme Court besides in Jaspal Kaur (supra) has been considered ad required to be followed;
(ii) as to whether the applicants are entitled for conversion from CPF to GPF; and/or
(iii) as to whether such claim of the applicants deserves to be dismissed on the ground that the same being barred by limitation, delay and laches.
21. The Division Bench of the Hon'ble High Court in LPA No.410/2014 and in a batch of cases, titled Smt. Shashi Kiran and others vs. Union of India and others, considered an identical issue and allowed the claim of the employees vide common Order/Judgment dated 24.8.2016. In paras 17, 19 and 20 of the said Order/Judgment, the Hon'ble Delhi High Court has ruled as under:-
"17. This court is of opinion that the submissions of the University, the appellant, in regard to the Virmani's order, have no force. There is no denial and there can be none- that the nature of the scheme contemplated by the 01.05.1987 notification was to ensure that only those wishing to continue in the CPF scheme had to opt to do so. A default in that regard, meant that the employee not filling his option (to continue in CPF) was deemed to have "come over" or migrated to the Pension Scheme. The University and the official respondents (UGC, Central Government etc) had urged that the petitioners in the Virmani group are deemed to have accepted the CPF benefits, because they allowed deductions from their monthly salaries during the interregnum and permitting Pension Scheme benefits would not be fair; in the same breath it was urged that there was delay. This court 13 OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019 is of opinion that the University - and the respondents are relying on contradictory pleas. If they urge that the true interpretation of the 1987 circular meant that anyone not furnishing an option to continue in the CPF scheme is deemed to have opted for the Pension Scheme (as the Virmani group undoubtedly did) there is no way they can succeed on the ground of laches or estoppel. If plain grammatical meaning of the language of the May 1987 OM were to be given, all those who do not opt would automatically be borne in the Pension Scheme. Such being the position, the argument that the petitioners in Virmani allowed deduction of CPF amounts from their salary, cannot be argued against them. CPF schemes typically require employees to commit greater amounts than in GPF scheme, on a monthly basis. That these staff members allowed higher amounts, which were held under a scheme (and which earned interest), the benefit of which had not accrued and was not available to them till the date of superannuation, cannot be urged against them. Likewise, the question of laches would not arise, because at the most, pension would not be allowed for the entire period, given that in matters of pension (see Union of India & Ors. V. Tarsem Singh (2008) 8 SCC 648) there is a continuing cause of action. Therefore, we find no infirmity with the learned Single Judge's order, in Virmani's case."
"19. It is argued by the learned counsel for the University that once the learned Single Judge held that extension of the option was not authorized, there was no question of granting relief. Furthermore, in respect of those who had not opted for CPF, but whose contributions continued in the scheme, the court should not have granted relief, given the passage of time and the voluntary conduct of the teaching staff and officials. It was urged that the learned Single Judge erred in relying on Union of India v. S.L. Verma (2006) 12 SCC 53; in any case, the observations relied on were mere passing remarks, in the nature of obiter and clearly had no binding effect. On the other hand, the learned Single Judge, urged the Appellants' counsel, fell into error in not relying on Kendriya Vidyalaya Sangathan & Ors v Jaspal Kaur & Anr (2007) 6 SCC 13 and Union of India and Ors v M.K. Sarkar (2010) 2 SCC 59.
20. This court is of the opinion that no infirmity can be found with the approach or reasoning of the learned Single Judge, in allowing the respondents' petitions. The learned Single Judge made a factual analysis, in this category of teaching staff. The chart, prepared for the purpose, and extracted at Para 3.1 of the judgment in this batch (N.C. Bakshi v Union of India WP 5310/2010) shows that all the 14 OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019 employees opted for the CPF benefits, after the cut-
off date. It was because of this and the expressed stand of the UGC- and the University that the learned Single Judge concluded that notwithstanding the so called option, exercised in terms of the extensions given, the writ petitioners could not be denied the benefit of the Pension Scheme because they were deemed, by the OM of 01.05.1987 to have opted for it, by default. Having regard to these facts, the appellants could not have urged that the benefit of the Pension Scheme should have been denied to these class of petitioners/teaching staff. Therefore, we are of opinion that there is no infirmity with the impugned judgment of the learned Single Judge. The University's appeals, therefore, deserve to fail."
22. An identical issue came before the Hon'ble High Court of Judicature at Madras in R. Renukadevi vs. The Commissioner, KVS and others (supra). In the said case, at the time of joining the services in the KVS, there was no pension scheme for KVS employees, however, after 4th Pay Commission, the Pension Scheme was introduced vide Office Memorandum dated 1.9.1988. As per which employees joining service in the Sangathan on or after 01.01.1986 shall be governed only by the G.P.F Scheme and will have no option for the C.P.F. Scheme. However, for all C.P.F. beneficiaries, who were in service on 01.01.1986 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. By virtue of the deeming clause, the petitioner therein was under the impression that she had been brought into the Pension Scheme. When the same was denied to her, the petitioner therein approached the Madras Bench of this Tribunal by filing Original Application No.1166/2013. On behalf of the KVS, it was contended that an option was given to the KVS employees to switch over from C.P.F. Scheme to Pension Scheme in 1988 but the petitioner therein continued to be in the C.P.F. Scheme without demur and she cannot seek for pension under the Pension Scheme as she had not expressed any option after introduction of Pension Scheme in the year 1988. The Tribunal dismissed the said Original Application on the ground that petitioner continued till the date of retirement with the CPF Scheme and her case was distinguishable from the case covered by the judgment relied upon by her. The Hon'ble Madras High Court set aside the aforesaid Order of the Madras Bench of this Tribunal and directed the respondents to convert the pensioner under GPF Scheme forthwith, calculate and pay the revised pension including the arrears for which, he became eligible by such conversion and the petitioner therein was also directed to refund the amount received by him towards CPF Scheme with 9% p.a. interest from the date when he received till the date of payment and making it clear that arrears of pension payable to the petitioner therein under GPF Scheme may be adjusted towards refund of the P.F. amounts received 15 OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019 by the petitioner with interest and also that in the event of not realizing the entire amount, the remaining portion amount may be refunded by the petitioner. Paras 9 to 11 of the said judgment of the Hon'ble Madras High Court read as under:-
9. Further, the Delhi High Court in "Smt.Shashi Kiran and others versus Union of India and others"
etc., reported in 2016 SCC OnLine Del4819" has dealt with the issue in extenso and finally held that even if an option exercised by the employees, they would still be entitled to request for change of option to pension scheme in view of subsequent developments and change in socio and economic scenario.
10. Even going to the extent of holding that she had exercised her option in favour of Central Provident Fund Scheme, such exercise of option was not valid and subsisting in view of subsequent social and economic development. It is also to be seen from the decision of the Delhi High Court that several employees have been allowed to switch over from CPF to pension scheme even after the exercise of option originally in favour of the CPF scheme. Such being the case, singling out a few employees in some departments on an erroneous understanding of the office memorandum dated 01.09.1988, would be per se discriminatory and hence consequentially impermissible.
11. In the above circumstances, the learned Tribunal has not appreciated the claim of the petitioner in proper perspective with reference to the above said office memorandum and decisions cited on behalf of the petitioner. The learned Tribunal was misguided by the fact that the petitioner continued to remain under CPF scheme without due appreciation of the fact that all employees, on introduction of the pension scheme in 1988, deemed to have come under pension scheme. Mearly because the petitioner continued to contribute to the CPF scheme, her right to get pensionary benefits under the pension scheme cannot stand negatived, as the right which falls for consideration before us is the constitutional right to equal treatment, as envisaged under Article 14 of the Constitution of India."
23. An identical issue again came before the Hon'ble High Court of Judicature at Madras in the case of S. Subbiah (supra). In the said case, the employees exercised their option to remain with C.P.F. Scheme, however, subsequently, they submitted representations that they should be brought under the Pension Scheme as they did not exercise their option before the cut of date, i.e., 30.9.1997, petitioners (original respondents) before the Tribunal resisted the claim of the employees on the 16 OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019 ground that once the employees have chosen their exercise consciously, they cannot re-assail their position subsequently and claim pension under the Pension Scheme. The Madras Bench of this Tribunal placed reliance on the decision of the Hon'ble Supreme Court in S.L. Verma (supra) as extracted in para 9 of its order as well as the decision of the Hon'ble High Court of Delhi in Dr. R.N. Virmani and others vs. University of Delhi and another (supra) and allowed the Applications filed by the employees and the Hon'ble Madras High Court dismissed the said Writ Petitions vide common Order/Judgment dated 5.1.2017, paras 14 thereof reads as under:-
"14. This Court, after hearing the arguments on either side, gave its anxious consideration with reference to the pleadings and the decisions of the Hon'ble Supreme Court and the decision of the Delhi High Court. The natural conclusion emanated from our anxious consideration will only lead to hold that the respondent employees despite their option to remain in CPF Scheme which was given during the extended period of time, are entitled to seek pension under the Pension Scheme. Firstly, the said option given during the time of extended period has no sanctity in law. Secondly, such option given by the employees cannot be held against them in view of the fact that several similarly placed employees of the Central Government were allowed to switch over to the CPF Scheme, meaning that no seriousness attached to the cut of date prescribed originally by the Official Memorandum dated 1.5.1987. If these employees were denied pension in the facts and circumstances, it would certainly amount to discrimination, which per se constitutionally impermissible. Moreover, the decision of the Delhi High Court cited supra and the contentions which were extracted above, would unequivocally supported the claim of the respondent employees notwithstanding the fact that whether they exercised their option or not."
24. Again an identical issue came before the Hon'ble High Court of Madras in the case of N. Subramanian (supra), and the Hon'ble High Court considered the judgment of the Hon'ble Supreme Court in the case of Jaspal Kaur (supra) and set aside the Order of Madras Bench of this Tribunal dated 2.6.2015 in OA 736/2013, vide Order/Judgment dated 24.2.2017, and granted the prayer of the petitioner for conversion from CPF Scheme to GPF Scheme, para 11 thereof reads as under:-
"11. As regards the legal position, the issue has been covered by the decisions of the Hon'ble Supreme Court and the High Court of Delhi. In fact, the same Tribunal in similar applications, had allowed the claims of the employees therein, declaring that they were deemed to be pensioners under pension scheme. In fact, this Court has 17 OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019 dismissed the batch of writ petitions in WP 28092 to 28094 of 2015 etc., filed by the Union of India, wherein, the Tribunal allowed the similar claims. In fact, in those cases, option had been exercised by the employees in favour of CPF scheme, but in spite of the same, applications were filed and allowed by the Tribunal and the writ petitions filed against those orders by the Union of India, came to be dismissed this Court vide order dated 05.01.2007, with the following observation in para 13 and 14:
"13. From the above, it could be seen that even the employees who have originally opted to remain in CPF Scheme and switched over to Pension Scheme because the same was being more beneficial to them, the Court has held that non-grant of better benefits by way of pension and denying the same to one set of employees per se discriminatory notwithstanding the option exercised by the employees to remain in CPF scheme which was given during the extended period of time, are entitled to seek pension under the Pension Scheme. The Delhi High Court has adverted to several decisions of the Hon'ble Supreme Court and other High Courts and passed a detailed judgment in a batch of appeals.
The issues raised before the Delhi High Court were identical and the Court has answered the issues in favour of the employees.
14. This Court, after hearing the arguments on either side, gave its anxious consideration with reference to the pleadings and the decisions of the Hon'ble Supreme Court and the decision of the Delhi High Court. The natural conclusion emanated from our anxious consideration will only lead to hold that the respondent employees despite their option to remain in CPF Scheme which was given during the extended period of time, are entitled to seek pension under the Pension Scheme. Firstly, the said option given during the time of extended period has no sanctity in law. Secondly, such option given by the employees cannot be held against them in view of the fact that several similarly placed employees of the Central Government were allowed to switch over to the CPF Scheme, meaning that no seriousness attached to the cut of date prescribed originally by the Official Memorandum dated 1.5.1987. If these employees were denied pension in the facts and circumstances, it would certainly amount to discrimination, 18 OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019 which per se constitutionally impermissible. Moreover, the decision of the Delhi High Court cited supra and the contentions which were extracted above, would unequivocally supported the claim of the respondent employees notwithstanding the fact that whether they exercised their option or not."
25. The Hon'ble High Court of Judicature for Rajasthan at Jodhpur had also considered an identical issue in M.S. Panwar (supra). In the said cases, though before the Hon'ble High Court judgment of the Hon'ble Supreme Court in the case of Jaspal Kaur (supra) was not brought to the notice, however, the identical facts were there and after considering the judgments of the Hon'ble Supreme Court in the cases of Rajasthan Rajya Vidhyut Vitran Nigam Ltd. Vs. Dwakar Prasad Koolwal and others, reported in AIR 2014 SC 365, and S.L. Verms (supra), the Hon'ble High Court allowed the prayer of the petitioners for conversion from CPF Scheme to GPF Scheme vide Order/Judgment dated 4.1.2018 and the said judgment has attained finality after dismissal of the SLP by the Hon'ble Supreme Court vide judgment dated 26.7.2019.
26. Similar has been the position before the Hon'ble High Court of Judicature for Rajasthan at Jodhpur in the case of Gajendra Singh Rathore (supra) in which the Hon'ble High Court after considering the relevant facts and judgments in the case of M.S. Panwar (supra) and S.P. Tak vs. The Central Administrative & ors. in DBCWP No.10662/2016, which have attained finality upon dismissal of SLPs vide order dated 265.07.2019, allowed conversion of the petitioner from C.P.F to G.P.F. vide Order/Judgment dated 22.10.2021.
27. I may also refer the Order/Judgement dated 17.1.2019 of the Hon'ble High Court of Judicature at Bombay in Writ Petition No.1331/2007, titled Amita Ajit Desai and others vs The Director (I and Q/C) & Anr.. In the said case, the Hon'ble High Court was concerned with the petitioners, who had retired in the years 2006, 2009, 2011 and 2015 and relief was granted by the Hon'ble High Court, governing the petitioners therein under Central Civil Services (Pension) Scheme, 1972, paras 11, 12 and 13 thereof read as under:-
"11 The controversy is no longer res integra. In the case of Union of India & Anr. Vs. S.L. Verma & Ors., the Hon'ble Supreme Court had an occasion to consider the very same Office Memorandum. It will be helpful to refer to paragraph 7 of the said judgment of the Apex Court which reads as under
:-
"7 The Central Government, in our opinion, proceeded on a basic mis-conception. By reason of the said Office Memorandum dated 1.5.1987 a legal fiction was created. Only 19 OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019 when an employee consciously opted for to continue with the CPF Scheme, he would not become a member of the Pension Scheme. It is not disputed that the said respondents did not give their options by 30.9.1987. In that view of the matter respondent Nos. 1 to 13 in view of the legal fiction created, became members of the Pension Scheme. Once they became the member of the Pension Scheme, Regulation 16 of the Bureau of Indian Standards(Terms and Condition of Service of 2 (2008) 8 Supreme Court Cases 648 Shraddha Talekar PS 5/8 6
931.wp.1337.2017.doc Employees Regulation, 1988) had become ipso-facto applicable in their case also. It may be that they had made an option to continue with the CPF Scheme at a later stage but if by reason of the legal fiction created, they became members of the Pension Scheme, the question of their reverting to the CPF would not arise. The respondent No.14 has correctly arrived at a conclusion that an anomaly would be created and in fact the said purported option on the part of respondent No.1 to 13 was illegal when a request was made by respondent No.14 to the Union of India for grant of approval so that all those employees shall come within the purview of the Pension Scheme. In our opinion, the Ministry of Finance proceeded on a wrong premise that the Pension Scheme was not in existence and it was a new one. Two legal fictions, as noticed hereinbefore, were created, one by reason of the memorandum, and another by reason of the acceptance of the recommendations of the Fourth Central Pay Commission with effect from 1.1.1986. In terms of such legal fictions, it will bear repetition to state, the respondent nos.1 to
13 would be deemed to have switched over to the pension scheme, which a fortiori would mean that they no longer remained in the CPF scheme."
12 On perusal of the aforesaid observations of the Hon'ble Apex Court, it is clearly revealed that by reason of the said Office Memorandum dated 1st May 1987, a legal fiction was created. It has been held that only when an employee consciously opted to continue with the CPF Scheme, he would not become a member of the Pension Scheme. It has been held that if no option is exercised by an employee, prior to the date specified in the Office Memorandum dated 1st May 1987, the employee shall be deemed to have automatically come over to the Pension Scheme.
20OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019 13 We find that the aforesaid directions of the Hon'ble Apex Court would clearly cover the case of the petitioners. Undisputedly, none of the petitioner has opted for the CPF Scheme under the Office Memorandum Shraddha Talekar PS 6/8 7
931.wp.1337.2017.doc dated 1st May 1987. In that view of the matter, we find that in view of the Office Memorandum dated 1st May 1987, the petitioners would be deemed to be covered by the Pension Scheme."
28. From the aforesaid, it is evident that in spite of their being the judgment of the Hon'ble Apex Court in the case of Jaspal Kaur (supra), various Hon'ble High Courts have followed the judgment of the Hon'ble Supreme Court in the case of S.L. Verma (supra). In the identical facts and circumstances after considering various judgments of the Hon'ble Supreme Court, the Hon'ble High Courts have not found the claim of the similarly placed person(s) barred by limitation, delay and laches. Even in Jaspal Kaur (supra), the judgment of the Hon'ble Supreme Court in S.L. Verma (supra) has not been considered, whereas by the Hon'ble High Courts, various judgments of the Hon'ble Supreme Court on limitation as well as the judgments of the Hon'ble Supreme Court in S.L. Verma (supra) and in Jaspal Kaur (supra) have been considered.
29. I have also gone through the judgments referred to and relied upon by the learned counsel for the respondents. I have already noted herein above that the judgment of the Hon'ble Supreme Court in Jaspal Kaur (supra) has been considered by the Hon'ble High Court of Delhi and Hon'ble High Court of Judicature at Madras. So far as judgment of the Hon'ble High Court of Delhi in Manju Sahgel (supra) is concerned, in the said case, though the judgment of the Hon'ble Supreme Court in the case of Jaspal Kaur (supra) has been considered, however, neither the judgment of the Hon'ble Supreme Court in the case of S.L. Verma (supra) has been considered nor the judgment of the Hon'ble High Court of Delhi in Dr. R.N. Virmani (supra) has been considered. I have also gone through the judgment of the Hon'ble Supreme Court in Krishna Kumar (supra). However, I find that the facts and issue in the said case before the Hon'ble Supreme Court were entirely different. I have also gone through the judgment of the Hon'ble High Court of Punjab and Haryana in the case of Mrs. Kamljit Hanjan (supra). Though similar claim of the similarly placed persons had been dismissed by the Hon'ble High Court, however, in the said case, none of the judgment of the Hon'ble Supreme Court and of the Hon'ble High Courts, referred to above, have been considered.
30. From the aforesaid, it is evident that there are two sets of judgments. In one set of judgments, the Hon'ble High Courts after considering the relevant OMs of 1987 & 1988 and the judgments of the Hon'ble Supreme Court in S.L. Verma (supra), Jaspal Kaur (supra) and also various 21 OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019 judgments on the point of limitation, delay and laches, have allowed the claim of similarly placed persons whereas there is another set of judgments in which Single Bench of this Tribunal and/or Division Bench of this Tribunal has dismissed claim of the similarly placed persons.
31. I am of the considered view that once issue has been considered and the same has been allowed by the Hon'ble High Courts after considering the various judgments of Hon'ble Supreme Court, including in the case of Jaspal Kaur (supra) and objection of limitation and law thereon, the judgments of the Hon'ble High Courts would be binding and not the judgment(s) of the Single Bench and/or the Division Bench of this Tribunal on the same issue. Accordingly, I am of the considered opinion that the applicants are entitled for conversion from C.P.F. to G.P.F. and the applicants' claim is not barred by limitation, delay and laches.
32. In view of the aforesaid, I am in respectful agreement with the aforesaid common Order/Judgment dated 17.1.2022 passed by the Hon'ble Member (J) and respectfully, I am not in agreement with the aforesaid common Order/Judgment dated 17.1.2022 passed by the Hon'ble Member (A) in the aforesaid OAs. Order accordingly."
From perusal of the above, it is clear that the third Member of this Tribunal was of the view that once issue has been considered and the same has been allowed by the Hon'ble High Courts after considering the various judgments of Hon'ble Supreme Court, including the case of Jaspal Kaur (supra) and objection of limitation and law thereon, the judgments of the Hon'ble High Courts would be binding and not the judgment(s) of the Single Bench and/or the Division Bench of this Tribunal on the same issue. Accordingly, third Member was of considered opinion that the applicants are entitled for conversion from 22 OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019 C.P.F. to G.P.F. and the applicants' claim is not barred by limitation, delay and laches.
Further, third Member was in respectful agreement with the common order/judgment dated 17.01.2022 passed by the Member (J) of this Bench of the Tribunal in the aforesaid OAs.
11. We have also gone through the common order/judgment dated 17.01.2022 passed by the Member (J) in the aforesaid cases, the relevant observations and directions of which read as under: -
"9. The present controversy as to whether the Applicants should be allowed to convert from CPF Scheme to GPF Scheme has been considered by this Tribunal at length in OA No. 5/2019 (Mrs. Bela Agarwal & Ors. vs. The Commissioner, KVS & Anr.) decided on 21.12.2021, wherein this Tribunal has observed that Hon'ble High Court of Rajasthan at Jodhpur while dealing with the case of Gajendra Singh Rathore has not discussed the judgment of the Hon'ble Apex Court in the case of Jaspal Kaur on the subject and, thus, was of the view that the decision of the Hon'ble High Court can be said to be a judgment per incuriam and had dismissed the said OA on limitation as well as on merits.
10. In spite of the said observations, we have still gone ahead in detail and also perused the judgment of the Hon'ble High Court of Rajasthan at Jodhpur in the case of Gajendra Singh Rathore vs. C.A.T. & Ors. (D.B.C.W.P. No. 14158/2019) decided on 22.10.2021, relied upon by Shri Amit Mathur, learned counsel for the applicant, wherein it was brought to our notice that the Hon'ble High Court though has not discussed Hon'ble Apex Court judgment in the case of Jaspal Kaur but in Gajendra Singh Rathore's case, the Hon'ble High Court has relied upon the judgments passed by the Court in DBCWP No. 5976/2017 in the case of M.S. Panwar vs. C.A.T. & Ors. and DBCWP No. 10662/2016 in the case of S.P. Tak vs. C.A.T. & Ors. wherein the Hon'ble High Court has held that the OM dated 01.09.1998 issued by KVS had a specific stipulation that those who desired to continue to 23 OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019 be members of the CPF Scheme would have to exercise a positive option to remain as members of the CPF Scheme and that in absence of any option they would be deemed to be members of the Pension Scheme. In the said judgment, Hon'ble High Court has also relied upon the Hon'ble Apex Court judgment in the case of SP Tak which has upheld the judgment of the Hon'ble High Court and dismissed the SLP filed by the Commissioner, KVS & Another [SLP (Civil) No. 21776/2019], on 26.07.2019. To go further, it has also dealt with the judgment of the Hon'ble Apex Court in the case of Union of India & Anr. vs. S. L. Verma, reported in 2006 (12) SCC 53, wherein the Hon'ble Apex Court has dealt with the identical issue and dismissed the Appeal of the Union of India and allowed the Respondents to switch over to Pension Scheme and stated that they would no longer remain under the CPF Scheme. On the same ground, the Hon'ble High Court has allowed the Writ Petition filed by Gajendra Singh Rathore directing the Respondents to convert the Petitioner - Gajendra Singh Rathore as pensioner in the GPF Scheme and to pay him the revised pension including arrears for which he became eligible by such conversion. It was also made clear that he shall refund the amount received by him towards CPF Scheme with 9% per annum interest from the date when he received till the date of payment. It was also directed that the arrears of pension payable to the Petitioner under GPF Scheme may be adjusted towards refund of CPF amounts received by him with interest. Thus, learned counsel for the Applicant stated that the judgment in the case of Gajendra Singh Rathore cannot be said to be judgment per incuriam and, therefore, stated that the judgment passed in the case of Gajendra Singh Rathore (supra) deserves to be applied in the present case as the present issue is identical.
11. Shri Amit Mathur, learned counsel for the applicant, has also relied upon the Full Bench order dated 24th March 2015 passed by C.A.T., Jaipur Bench in the case of Ajay Sharma vs. Union of India & Ors. (OA No. 569/2009) on the issue that when there are conflicting decisions then the Tribunal is bound by the decision of the Hon'ble High Court of the State. The Full Bench observed that a finding recorded by any High Court which by its nature affects employees of more than one State shall be binding on the Tribunal provided it fulfils the essential characteristics of a valid precedent. He, thus, stated that the judgment in the case of Gajendra Singh Rathore (supra) fulfils all the essential characteristics and covers the controversy laid down in the present case and, therefore, the present O.A. deserves to be allowed and that Respondents be directed to convert the applicant as Pensioner under GPF Scheme instead of CPF.
12. Shri Hawa Singh, learned counsel for the respondents, on the other hand, contradicted the stand of the applicants and stated that the view of the Tribunal in the case of Mrs. Bela Agarwal (supra) holds good. Also Shri V.D. Sharma, learned counsel for respondents 24 OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019 further argued that not only the present Original Applications deserve to be dismissed on limitation but the same also deserves to be rejected on merits as Jaspal Kaur's judgment has covered all the points raised by the applicants and the said judgment on identical footing was rejected by the Hon'ble Apex Court.
13. After going through the said judgments/orders and after considering the arguments advanced by the learned counsel for the parties, it is seen that besides Jaspal Kaur's judgment, the Hon'ble Apex Court has also dealt with the said issue in S.L. Verma's case and has observed that the Petitioners deserve to be converted from CPF to GPF Scheme and after relying on the said matter as well as Hon'ble Apex Court judgment in SP Tak (supra), Hon'ble High Court has allowed the Appeal of the Petitioner, Shri Gajendra Singh Rathore (supra) vide its judgment dated 22.10.2021.
14. Coming to the facts and issue before us, we find that the facts are almost identical and that the judgment passed by the Hon'ble High Court of Rajasthan in the case of Gajendra Singh Rathore (supra) now cannot be said to be judgment per incuriam.
15. We have noticed that the Respondents are unable to produce the service records of the Applicant stating that the records are more than 30 years old, hence, the same cannot be produced. But now we require to deal with the issue as to whether or not option has been given by the Applicant and accordingly come to conclusion that according to provisions of para 3 of OM dated 01.09.1988, all CPF beneficiaries who were in service as on 01.01.1986 and who are still in service on the date of issue of these orders will be deemed to have come over to GPF-cum-Pension Scheme. Also coming to Principal Bench of this Tribunal's order in OA No. 1999/2014 on the same issue, it is seen that the Principal Bench has come to conclusion that there is no necessity to opt for pension scheme. If an employee has not opted for Pension Scheme after issuance of Circular dated 1.09.1998 even then he is deemed to be a member of pension scheme. The requisite as per the said circular is that the employee must exercise option for CPF after 01.09.1988. If no such option is exercised then no benefits can be given under CPF Scheme.
16. Coming to the objection raised by the Respondents towards ground of limitation, it is clear that the Applicant is claiming benefits as per OM dated 01.09.1988, wherein he is incurring loss in pensionary benefits and, thus, there is no question of any delay. Even on merits, we find that no reasons have been mentioned by the Respondents in any of their replies as to why the services of the Applicants are not governed by the provisions of the OM dated 01.09.1988. Neither the Respondents deny the fact that any option has been exercised by the Applicant for CPF Scheme after OM dated 01.09.1988.25
OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019 The only ground for rejection by the Respondents is that only those employees who are appointed after 01.01.1986 and before 31.12.2003, are entitled for submitting option for conversion from CPF to GPF and as Applicant has been appointed prior to 1986, he is not entitled for conversion from CPF to GPF scheme. Thus, it is clear that the Respondents have misinterpreted the Scheme of 01.09.1988 and as the impugned orders in challenge are in clear violation of the OM dated 01.09.1988, the present O.A. deserves to be allowed and Applicant be allowed by Respondents to switch over from CPF Scheme to GPF Scheme.
17. In view of the observations and discussions made herein-above, the order dated 29.04.2019 (Annexure A/1), order dated 29.10.2018 (Annexure A/2) and order dated 01.09.2014 (Annexure A/3) are hereby quashed and set aside. Accordingly, the present O.A. No. 254/2019 is allowed and the Respondents are directed to allow the Applicant to switch over to GPF Pension Scheme. As far as the amounts paid to the Applicant under CPF Scheme is concerned, the same shall be refunded by the Applicant with 9% per annum interest from the date when he received the amount till the date of payment. It is also made clear that the arrears of pension payable to the applicant under GPF Scheme be adjusted towards refund of CPF amounts received by him with interest. No order as to costs.
18. Accordingly, OA No. 153/2019, OA No. 4/2020 and OA No. 157/2020 are also allowed in the same terms and the observations and directions given in the above paras shall be followed in these Original Applications also."
From perusal of the above observations, it is clear that respondents were unable to produce the service records of the applicant stating that the records are more than 30 years old, hence, the same cannot be produced. But it was required to deal with the issue as to whether or not option has been given by the applicant and accordingly come to conclusion that according to provisions of para 3 of OM dated 01.09.1988, all CPF beneficiaries who were in service 26 OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019 as on 01.01.1986 and who are still in service on the date of issue of these orders will be deemed to have come over to GPF-cum-Pension Scheme. It was also observed that that there is no necessity to opt for pension scheme. If an employee has not opted for Pension Scheme after issuance of Circular dated 01.09.1988 even then he is deemed to be a member of pension scheme. The requisite as per the said circular is that the employee must exercise option for CPF after 01.09.1988. If no such option is exercised then no benefits can be given under CPF Scheme.
On the issue of limitation, it was observed that the applicant is claiming benefits as per OM dated 01.09.1988, wherein he is incurring loss in pensionary benefits and, thus, there is no question of any delay. It was also observed that no reasons have been mentioned by the respondents in any of their replies as to why the services of the applicants are not governed by the provisions of the OM dated 01.09.1988. Neither the respondents deny the fact that any option has been exercised by the applicant for CPF Scheme after OM dated 01.09.1988. The only ground for rejection by the respondents was that only those employees who are appointed after 01.01.1986 27 OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019 and before 31.12.2003, are entitled for submitting option for conversion from CPF to GPF and as applicant has been appointed prior to 1986, she is not entitled for conversion from CPF to GPF scheme. Thus, it was observed that the respondents have misinterpreted the Scheme of 01.09.1988 and as the impugned orders in challenge were in clear violation of the OM dated 01.09.1988, the said O.A. was allowed and it was ordered that applicant be allowed by the respondents to switch over from CPF Scheme to GPF Scheme.
12. From the analysis made herein-above, we are of the considered view that the controversy involved in the present Original Applications is no longer res integra. Therefore, the ratio decided by Member (J) vide order dated 17.01.2022 in OA No. 153/2019, Mrs. Gurmail Kaur vs. The Commissioner, KVS & Anr., and connected OAs. (supra) shall follow in the present Original Applications also in all respect.
13. In view of the observations and discussions made herein-above, the letter/order dated 09.09.2019 (Annexure A/1) is hereby quashed and set aside. Accordingly, O.A. No. 611/2019 is allowed and the 28 OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019 respondents are directed to consider the services of the applicant governed by the GPF cum Pension Scheme in pursuant to Para-3 of OM dated 01.09.1988 (Annexure A/3). It is made clear that the services of the applicant is governed by the GPF cum Pension Scheme and she is entitled for retiral / pension benefits under GPF Scheme.
14. Accordingly, similar OA No. 402/2019 and OA No. 541/2019 are also allowed in the same terms. The impugned letter/order dated 03.07.2019 (Annexure A/1 in OA No. 402/2019) and also impugned letter/order dated 03.07.2019 (Annexure A/1 in OA No. 541/2019) are also quashed and set aside. It is made clear that the observations and directions given in the above paras shall be followed in both said Original Applications also.
(HINA P. SHAH) (DINESH SHARMA) JUDICIAL MEMBER ADMINISTRATIVE MEMBER /nlk/