Rajasthan High Court - Jodhpur
S.P. Tak vs The Central Administrative & Ors on 4 January, 2018
Author: Chief Justice
Bench: Chief Justice
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 5976 / 2017
M.S. Panwar S/o Shri Kashi Ram Singh Panwar, Aged About 61
Years, B/c Panwar, R/o 9, Golf Course Scheme, Air Force Area,
Jodhpur, Rajasthan.
----Petitioner
Versus
1. Central Administrative Tribunal, Jodhpur Bench, Jodhpur.
2. The Union of India Through the Secretary, Ministry of Human
Resource Development, Government of India, Shastri Bhawan,
New Delhi.
3. The Commissioner, Kendriya Vidhyalaya Sangthan, Sahid Jeet
Singh Marg, New Delhi.
4. Deputy Commissioner, Kendriya Vidhyalaya Sangthan, Jaipur
Region, Gandhi Path, Bajaj Nagar, Jaipur.
----Respondents
Connected With
D.B. Civil Writ Petition No. 10662 / 2016
S.P. Tak
----Petitioner
Versus
The Central Administrative & Ors.
----Respondent
_____________________________________________________
For Petitioner(s) : Mr. Himanshu Shrimali}
Mr. Manoj Bhandari}
Mr. Sunil Purohit
Mr. Govind Suthar}
For Respondent(s) : Mr. Avinash Acharya}
Mr. Rajendra Katariya}
_____________________________________________________
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HON'BLE THE CHIEF JUSTICE
HON'BLE MR.JUSTICE RAMCHANDRA SINGH JHALA
Judgment 04/01/2018
1. Heard learned counsel for the parties.
2. Shri S.P.Tak challenges an order dated 21.07.2016 dismissing OA No.290/00206/15. Shri M.S.Panwar challenges an order dated 04.01.2017 dismissing OA No.290/00427/14.
3. Reasoning in both decisions is common and thus the two writ petitions are being decided by a singular order.
4. Shri S.P.Tak joined service as Physical Education Teacher (P.E.T.) on 01.03.1985. Shri M.S. Panwar joined service as Physical Education Teacher (P.E.T.) on 14.09.1981. Employer was Kendriya Vidhyalaya Sangathan. At that time a Contributory Provident Fund Scheme (hereinafter referred as 'the CPF Scheme') was in vogue under the Kendriya Vidyalaya Sangathan and thus both became members of the CPF Scheme. On 01.05.1987 the Government of India issued an Office Memorandum, as per which all Central Government employees who were members of the CPF Scheme were given an option to continue to remain members of the CPF Scheme by exercising a positive option to said effect. As per the Office Memorandum those who did not submit any option would be deemed to have switched over to the Pension Scheme.
5. Following the Government of India Memorandum, Kendriya Vidyalaya Sangathan issued a Memorandum dated 01.09.1988 in pari materia terms.
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6. Meaning thereby, employees of the Kendriya Vidyalaya Sangathan who desired to continue to be members of the CPF Scheme had to exercise a positive and affirmative option to continue to be a member of the CPF Scheme. They were not to exercise a positive option to switch over to the Pension Scheme. As per the Office Memorandum, those who did not exercise a positive option to continue to be a member of the CPF Scheme would be deemed to be members of the Pension Scheme.
7. Since the two gentlemen realised in the year 2006 that money deducted from their salary was being credited to the CPF account and not the General Provident Fund account they made representations bringing out the position as afore-noted and highlighting the fact that neither of them exercised the positive option to continue to be members of the CPF Scheme. Their requests were turned down. Both approached the Central Administrative Tribunal.
8. Case of the writ petitioners was pleaded in aforesaid terms.
9. The respondents accepted that the two employees had not submitted any option pursuant to the Circular dated 01.09.1988 had opted for the CPF Scheme, and that, Kendriya Vidhyalaya Sangathan did not have any letter exercising option by the two employees. However, stand taken was that while issuing Form 16 for purposes of showing income tax deducted at source, it was indicated to the two gentlemen that money deducted from their salary was being credited in the CPF account. The Kendriya Vidyalaya Sangathan also relied upon a Circular dated 22.02.2006 (4 of 6) [ CW-5976/2017] as per which employees who had entered service before 31.12.2003 and were governed by the CPF Scheme were not eligible to switch over to the Pension Scheme. Kendriya Vidhyalaya Sangathan relied upon a decision of the Supreme Court reported in AIR 2014 SC 3655 Rajasthan Rajya Vidhyut Vitran Nigam Ltd. Vs. Dwarka Prasad Koolwal & Ors.
10. The two impugned decisions do not deal with the effect of the two writ petitioners not having exercised a positive option to remain members of the CPF Scheme as was contemplated by the Office Memorandum dated 01.09.1988. The decisions notice the Form 16 issued by the Department to the writ petitioners and holds that the writ petitioners were aware that the Department was treating them as members of the CPF Scheme. Representations made by the two in the Year 2006 were held to be of no consequence in view of the Circular dated 22.02.2006 issued by the Ministry of Human Resource Development. The Tribunal also held that as Supreme Court decision in Dwarka Prasad's case the two writ petitioners would not be entitled to any relief.
11. As regards the decision of the Supreme Court in Dwarka Prasad's case is concerned, suffice it to state it considered a policy decision taken by Rajasthan Rajya Vidhyut Vitran Nigam Limited as would be evidenced by Paragraph 61 of the decision. The Nigam had required a positive option to be exercised to switch over to the Pension Scheme. The Tribunal over looked that the Office Memorandum dated 01.09.1988 had stipulation to the contrary. The stipulation was that those who desired to continue (5 of 6) [ CW-5976/2017] to be members of the CPF Scheme would have to exercise a positive option to remain as members of the CPF Scheme and that in the absence of an option they would be deemed to be a members of the Pension Scheme.
12. In the decision reported as 2006 (12) SCC 53 Union of India & Anr. Vs. S.L. Verma & Ors. the Supreme Court has taken the view as propounded by the writ petitioners.
13. Thus, in that view of the matter the writ petitioners ought to have succeeded.
14. But since the Tribunal has looked into the Income Tax Return Form 16 as evidence of petitioners knowledge that they were being treated as members of the CPF Scheme, suffice it to state that a Government Servant and also employees of Kendriya Vidyalaya Sangathan who are members of the Pension Scheme have deductions effected under the General Provident Fund account and thus said deductions made, if wrongly credited to the General Provident Fund, would not disentitle the petitioners to the benefit of the Office Memorandum dated 01.05.1987.
15. As regards the Circular dated 22.02.2006, it concerns those employees who had chosen to be members of the CPF Scheme and post 01.01.2004 wanted to shift over to the Pension Scheme. The Office Memorandum prohibits the same for the reason w.e.f. 01.01.2004 the Pension Scheme has not been made applicable by the Central Government to the employees who entered service after 01.01.2004.
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16. The writ petitions are allowed. Impugned decisions passed by the Central Administrative Tribunal are quashed and the Original Applications filed by the writ petitioners are allowed, in that, the respondents shall treat the petitioners as members of the CPF Scheme.
17. Since there is no clarity whether the petitioners post retirement were tendered and under compulsion they took the amount lying to their credit in the CPF account, we direct that employees contribution with accrued interest thereon and as credited on yearly basis would be refunded by the petitioners to Kendriya Vidyalaya Sangthan if they have received the same. We are not directing any interest to be paid for the reason, we are not directing any interest to be paid on the pension which has accrued to the petitioners.
18. Kendriya Vidyalaya Sangathan shall do the needful within 12 weeks from today. No costs.
(RAMCHANDRA SINGH JHALA)J. (PRADEEP NANDRAJOG)CJ. Mamta/18-19