Delhi High Court
Dr. R.N. Virmani & Ors. vs University Of Delhi And Anr. on 30 April, 2014
Author: Rajiv Shakdher
Bench: Rajiv Shakdher
* THE HIGH COURT OF DELHI AT NEW DELHI
Judgement Reserved on: 30.01.2014
% Judgement delivered on: 30.04.2014.
+ WP(C) 1490/2006-1507/2006 and CM No.5186/2006, 15911/2008,
12350/2010 and CM No.2309/2011
DR. R.N. VIRMANI AND ORS. ....PETITIONERS
VERSUS
UNIVERSITY OF DELHI AND ANR. .....RESPONDENTS
+ WP(C) 4122/2011 and CM Nos.8515/2011 and 12935/2011
DR. (MRS.) K. PRABHA ....PETITIONER
VERSUS
UNIVERSITY OF DELHI AND ORS. .....RESPONDENTS
+ WP(C) 105/2012
MRS. VEENA MANGAL NATH AND ORS. ....PETITIONERS
VERSUS
UNIVERSITY OF DELHI AND ORS .....RESPONDENTS
WP(C) 1490-1507/2006 & connected matters Page 1 of 33
+ WP(C) 2028/2012
B.R. GUPTA ....PETITIONER
VERSUS
UNIVERSITY OF DELHI AND ORS .....RESPONDENTS
ADVOCATES WHO APPEARED IN THIS CASE:
For the Petitioners : Mr Meet Malhotra, Sr. Adv. with Mr Ravi S. Singh, Mr Prateek
Dahiya, Ms Pallak Singh & Mr Anant Ramadhyani, Advs. in
WP(C) 1490/2006.
Mr G.D. Gupta, Sr. Adv. with Mr Mayank Goel & Mr Lalruatpuia
Sailo, Advs. in WP(C) 4122/2011.
Mr Shanker Raju & Mr Nilansh Gaur, Advs. in WP(C) 105/2012.
Mr Aviral Tiwari, Adv. in WP(C) 2028/2012.
For the Respondents : Mr Mohinder J.S. Rupal, Adv. for University of Delhi.
Mr Amitesh Kumar & Ms Mamta Tiwari, Advs. for Resp./ UGC.
Mr B.V. Niren, CGSC for UOI.
Mr Aurobindo Ghosh, Advs. for Shivaji College.
Mr J.H. Jafri, Adv. for SBS College.
Mr R.P. Sharma & Mr Vaibhav Mehra, Advs. for Janki Devi
Memorial College.
CORAM :-
HON'BLE MR JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER, J
1. The captioned writ petitions revolve around a singular issue, which is:
whether or not the petitioners should be entitled to change over from the
Contributory Provident Fund (in short CPF) to the General Provident Fund
(GPF)- cum - Pension Scheme (in short the Pension Scheme). The
petitioners have claimed a right of change over / switch over to the Pension
Scheme based on the Government of India (in short GOI), Department of
Pension and Pensioners Welfare Office Memorandum (in short O.M.)
WP(C) 1490-1507/2006 & connected matters Page 2 of 33
No.4/1/87-P.I.C-I dated 01.05.1987, which was admittedly adopted by
respondent no.1 i.e., University of Delhi vide notifications dated 25.05.1987,
read with notification dated 04.06.1987, after receiving due approval of its
Vice Chancellor.
2. It may be relevant to note that the captioned writ petitions alongwith
other writ petitions were listed for hearing before the court from time to time
when, vide order dated 21.05.2012, my predecessor, categorised the matters
with the assistance of counsels for parties into three separate categories.
2.1 As per order dated 21.05.2012, category-1 comprises of those cases
where the petitioners had exercised an option to continue in the CPF
Scheme; albeit during the period of extension granted by University of
Delhi. The aspect pertaining to extensions, I will advert to as one goes
along with the narration of facts. Suffice it to state at this stage, that O.M.
dated 01.05.1987, which was duly adopted by the University of Delhi;
required employees to exercise the option for continuation under the CPF
Scheme by 30.09.1987, failing which, the employees were, "deemed to have
come over to the Pension Scheme." It was this deadline which, the
University of Delhi extended from time to time. It is the argument of
employees falling in this category that extensions were superfluous or otiose
since, after the deadline of 30.09.1987, was crossed, as per the provisions of
the scheme, this set of employees got automatically covered by the Pension
Scheme notwithstanding the fact that they overtly chose to remain under the
CPF Scheme.
2.2 Similarly, two other categories of employees was formed; vide order
dated 21.05.2012, these being: category-2 and 3. Category-2, thus,
WP(C) 1490-1507/2006 & connected matters Page 3 of 33
comprises of those employees / petitioners, who had before the cut-off date
of 30.09.1987, opted to remain under the CPF Scheme. Category-3,
comprised of those employees / petitioners, who chose not to exercise any
option. In other words, they neither opted to continue with the CPF Scheme
nor did they indicate that they were wanting to switch over to the Pension
Scheme.
3. The captioned writ petitions, which fall in Category-3, alongwith
other writ petitions came up before me, on 30.01.2014 when, order dated
21.05.2012, was noticed. On that date, I heard arguments in the captioned
writ petitions, which pertain to Category-3. In so far as those matters which
fell in category-1 and 2 were concerned, actual dates of hearing were given.
Incidently, hearing has been concluded by me even in respect of matters
falling in Category-1. The judgement in those matters was reserved on
27.03.2014. The matters falling in Category-2 were listed for hearing on
17.04.2014. Judgement in this batch of writ petition was reserved on the
said date after according hearing to counsel for parties.
3.1 In the order dated 30.01.2014, three matters were placed under a new
category i.e., Category-4. These were matters which, facially, did not fall in
either of the three categories noticed in order dated 21.05.2012. I may only
note that in respect of one writ petition, being: WP(C) 5597/2013, which
was slated for hearing on 24.04.2014, it has been contended by the counsel
for the petitioners that the said matter does not fall in Category-4. This
aspect remains to be examined by me.
WP(C) 1490-1507/2006 & connected matters Page 4 of 33
4. Having regard to the fact that the captioned writ petitions pertain to
Category-3, I may only note the following brief facts, which are necessary
for adjudication qua the controversy in issue :-
4.1 As noticed above on 01.05.1987, the GOI issued an O.M., which
permitted Central Government employees who were governed by the CPF
Scheme to change over to the Pension Scheme. The said O.M. prefaced two
important facts. First, that the employees had been given repeated options
by the Department of Personnel and Training (DOPT). However, despite
repealed offers, some employees continued under the CPF scheme.
Reference in this regard was made to DOPT O.M. dated 06.06.1985. The
second aspect, touched upon, was that, the fourth (4th) Central Pay
Commission had recommended that all CPF beneficiaries in service on
01.01.1986, should be deemed, as having come over to the Pension Scheme
after the cut off date unless they specifically opt to continue under the CPF
scheme.
4.2 Importantly, the recommendations of the 4th Central Pay Commission
were accepted as indicated in paragraph 2 of O.M. dated 01.05.1987.
Pertinently, the manner of implementation was articulated in the subsequent
paragraphs of the said O.M. For the purposes of adjudication, paragraphs
3.2, 3.3 and 4.3 are relevant. Incidentally these are the very clauses which
were relied upon by counsels for both parties. For the sake of convenience,
the said paragraphs are extracted hereinbelow :
"..3.2 The employees of the category mentioned above, will,
however, have an option to continue under the CPF Scheme, if they
so desire. The option will have to be exercised and conveyed to the
concerned Head of Office by 30.09.1987 in the form enclosed if the
WP(C) 1490-1507/2006 & connected matters Page 5 of 33
employees wish to continue under the CPF Scheme. If no option is
received by the Head of Office by the above date, the employees
will be deemed to have come over to the Pension Scheme.
3.3 The CPF beneficiaries who were in service on January
1986, but have since retired and in whose case retirement benefits
have also been paid under the CPF Scheme, will have an option to
have their retirement benefits calculated under the Pension Scheme
provided they refund to the Government, the Government
contribution to the Contributory Provident Fund and the interest
thereon, drawn by them at the time of settlement of the CPF
Account such option shall be exercised latest by 30.09.1987.
4.3 Action to discontinue subscriptions / contributions to CP
Account may be taken only after the last date specified for exercise
of option, viz. 30.09.1987..."
4.3 It is not in dispute, as is indicated by me hereinabove, that vide
notification dated 25.05.1987, read with notification dated 04.06.1987, the
O.M. dated 01.05.1987, issued by GOI, was adopted by the University of
Delhi with due approval of its Vice Chancellor. The notification dated
04.06.1987 was duly accompanied by, the prescribed specimen form, for
exercise of option by the employees. The notification of 04.06.1987,
required that the O.M. dated 01.05.1987, be brought to the notice of all
concerned.
4.4 The net effect of O.M. dated 01.05.1987, was that if employees were
desirous of continuing with the CPF Scheme, they were required to give
their option to that effect in the prescribed form by 30.09.1987, failing
which, employees were "deemed to have come over to the Pension
Scheme".
WP(C) 1490-1507/2006 & connected matters Page 6 of 33
4.5 The University of Delhi, however, gave its own interpretation to O.M.
dated 01.05.1987, by issuing notifications for extension of the "last date for
exercising the option". From the record, it appears that the first extension
was granted till 29.02.1988.
4.6 Evidently the Executive Council of the University of Delhi at its
Executive Council meeting of 05.09.1989, took a decision to grant another
extension. This decision of the Executive Council is reflected in the
University of Delhi's notification dated 09.02.1989. By this notification,
employees were granted further three months to exercise their option for
change over from CPF to Pension Scheme.
4.7 By notification dated 06.09.1989, there was another extension granted
till 30.09.1989. The spate of extensions did not end with this notification;
on 30.11.1998, University of Delhi issued yet another notification whereby
as a one time exception, it granted leeway to change over till 31.01.1999,
pursuant to a decision of its Executive Council, at its meeting held on even
date i.e., 30.09.1998.
4.8 I may note that in an affidavit filed on behalf of University of Delhi,
in WP(C) No. 5759/2010, titled Shashi Kiran & Ors. vs University of Delhi
& Ors., it is stated that twelve (12) extensions were granted by the said
University. Pertinently, this writ petition falls in category no.2, arguments
in respect of which were concluded on 17.04.2014. To my mind, the
number of extensions will not have much impact as much would depend on
whether the University of Delhi had power to extend the dates without the
approval of the UGC.
WP(C) 1490-1507/2006 & connected matters Page 7 of 33
5. Till this juncture, the facts pertaining to the writ petitioners in the
present batch of petitions are common. It is also common ground, as
indicated above, that none of the petitioner in the present batch exercised
their option either way, that is, either to continue or, to switch over to the
Pension Scheme.
6. Let me therefore briefly touch upon the relevant facts pertaining to the
petitioners in the four writ petitions .
WP(C) 1490/2006 - 1507/2006
6.1 The first writ petition, being: 1490/2006-1507/2006 initially
comprised of 18 petitioners. An amended memo of parties was filed
pursuant to order dated 04.04.2011 passed in CM No. 4814/2011, when one
petitioner, Mr. B.R. Gupta, who was originally arrayed as petitioner no.7
was dropped from the array of parties. Prior to this two applications were
filed under Order I Rule 10. One for impleading and the other for deletion
of parties. The application for impleadment is numbered as: CM No.
5186/2006. This application was filed on 22.04.2006. Impleadment, was
sought of Mr Ashok Bagrial, Mr M.K. Chaturvedi, Dr. (Mrs.) Indira
Choudhary and Mr P.R. Chadha. By an order passed on 26.04.2006, it
appears, CM No. 5186/2006 was, apparently, allowed, though the order does
not specifically refer to the application. The second application, which was
for deletion of parties, was numbered as: CM 15911/2008. This application
was filed on 19.11.2008. Deletion was sought of one Mr Surender Singh
and Ms Neelam Kumar. The ground stated was that these petitioners were
drawing their benefits under the CPF Scheme, and that, they did not wish to
WP(C) 1490-1507/2006 & connected matters Page 8 of 33
change over to the Pension Scheme. No order appears to have been passed
on this application.
6.2 The amended memo of parties though filed on 19.11.2008, contains
the names of twenty (20) petitioners including the name of Sh. B.R. Gupta,
who was dropped from the array of parties on 04.04.2011. The names of
Mr. Surender Singh and Ms. Neelam Kumar, however, are not reflected in
the said amended memo of parties. What is available on record are the
details with regard to year of joining and retirement of the petitioners who
are employees of respondent no.2 college i.e., Shivaji College. The said
application is now, formally allowed, to bring the parties before the court, in
accord, with the amended memo of parties.
6.3 It is noticed that apart from the following persons, all others have
retired from service :-
(i). Sh. P.R. Chadha (petitioner no.20); Dr. V.P.S. Malik (petitioner no.2);
Dr. Promila Mathur (petitioner no.15), Dr. Devender Kumar Singh
(petitioner no.16), Dr. S.C. Goel (petitioner no.11), Dr. Manju Banerjee
(petitioner no.10), Dr. Manjula Singh (petitioner no.8), Ms. Usha Sharda
(petitioner no.9), Dr. Indira Choudhary (petitioner no.19), Dr. Mithlesh
Kumar Chaturvedi (petitioner no.18).
6.4 As per information supplied by the Shivaji college, pursuant to the
order of this court, none of the petitioners have had exercised their options
either way. The University of Delhi, on its part, in its counter affidavit has
not disputed this fact.
WP(C) 1490-1507/2006 & connected matters Page 9 of 33
6.5 The University of Delhi in its counter affidavit has taken the
following stand, which is crucial for the purposes of adjudication of the
captioned writ petitions. The stand being: that unless an employee exercises
his option in writing for continuation under the CPF Scheme, he/ she would
be covered by the Pension Scheme. The counter affidavit goes on to state
that the petitioners, who are parties to this particular writ petition had opted
for the CPF Scheme. I may only note that in the counter affidavit filed,
there is no defence taken that the writ petition be dismissed on the ground of
delay and latches. The relevant averments made in paragraph 6 of its
counter affidavit pertaining to the merits are extracted hereinafter :-
"..6. The Central Government while accepting the
recommendations of the IVth Central Pay Commission to be
effective from 01.01.1986, by Notification dated 01.05.1987
provided that in respect of government employees in service as on
01.01.1986, with effect from the said date, they would be treated as
governed by the GPF Scheme (Pension Scheme) unless they
exercise an option on or before 30.09.1987 to be governed by the
CPF Scheme (Non-Pension Scheme). Corresponding pay revision
in respect of employees of the University were approved by the
UGC/Union of India and notified on 14.10.1986 and was adopted
by the University vide Resolution of the Executive Council No.155
dated 09.10.1986. The effect of the same is that all the existing
employees of the University and Colleges affiliated to the
University and also the teachers of the University and teachers
serving in Colleges affiliated to the University would be covered by
the GPF (Pension Scheme) unless any individual employee
exercises his option in writing to be continued under the CPF (Non-
Pension Scheme). The petitioners are those who opted for the CPF
Scheme i.e., the non pension Scheme. (emphasis is mine)
6.6 During the course of the arguments, nothing was shown to me by the
counsel for University of Delhi, which would persuade me to accept the
WP(C) 1490-1507/2006 & connected matters Page 10 of 33
stand that the twenty (20) petitioners [in fact had to be nineteen (19)]
arrayed in this writ petition had exercised their option either way.
6.7 In so far as the said writ petition is concerned, there is a reference to a
legal notice sent on behalf of the petitioners to respondent no.2 college
wherein, a specific stand has been taken that no communication in writing
was submitted to the said college by the petitioners, which was indicative of
the fact that they were desirous of continuing with the CPF Scheme. A
reference was also made to the fact that, at least in so far as petitioner no.1
was concerned, letters since January 2002 had been issued for correction of
the record. This legal notice was replied to by the counsel for respondent
no.2 college vide communication dated 19.04.2004, where a stand was taken
that the petitioners had opted for continuation in the CPF Scheme.
Pertinently, as noticed above, this stand is contrary to the information placed
on record by respondent no.2 college pursuant to orders of this court dated
11.11.2008 and 14.11.2008.
6.8 It appears that the petitioners thereafter, issued yet another legal
notice on the subject on 21.11.2005.
6.9 Apparently, the said legal notice was not replied to by respondent
no.2 College.
WP(C) 4122/2011
7. In this case the petitioner claims that since she was to retire on
30.06.2011, she made enquiries in January 2010 as to the amount of pension
she would get on retiring from service. The petitioner claims that it is at this
stage that she obtained the copies of O.M. dated 01.05.1987 and notification
WP(C) 1490-1507/2006 & connected matters Page 11 of 33
dated 04.06.1987. Upon receiving the said notification, the petitioner made
an application under the RTI Act on 13.01.2010, seeking to know as to
whether she had exercised any option to continue under the CPF scheme.
7.1 The concerned college i.e., Shaheed Bhagat Singh College (in short
S.B.S. College) (arrayed as respondent no.2 in the writ petition) vide its
reply dated 08.02.2010, informed the petitioner that no record of any option
exercised by her was available in its record.
7.2 Consequent thereto, vide two separate communications dated
19.03.2010, a representation was made both to S.B.S College and University
of Delhi, for rectification of records. Reminders in this regard were sent to
the University of Delhi on 11.06.2010 and to the college on 23.02.2011.
7.3 The writ petition was moved on 03.06.2011 when, this court upon
noticing the stand taken by the petitioner, directed that she cannot be
permitted to withdraw the "CPF amount upon her retirement on
30.06.2011", since her case was of "deemed switch over to the Pension
Scheme".
7.4 As indicated above, the petitioner retired from service on 30.06.2011.
However, contrary to the order of this court, on 04.07.2011, the petitioner
received a composite cheque of Rs.26,35,764/-. The said amount comprised
of both employer and employees contribution to CPF.
7.5 The petitioner vide communication dated 11.07.2011 sought
information with regard to the employer contribution and upon receipt of the
said information, returned an amount of Rs.17,62,213/- to S.B.S. College
vide cheque of even date, which was duly encashed by S.B.S. College.
WP(C) 1490-1507/2006 & connected matters Page 12 of 33
7.6 The petitioner filed an interlocutory application, being: CM
No.12899/2011 wherein, it was averred that one Prof. R.D. Arora had been
allowed change over to Pension Scheme though he was similarly placed as
the petitioner. By order dated 29.09.2011, my predecessor, allowed the
aforementioned application with a direction that the petitioner would be
permitted to argue, based on the additional facts pleaded in the said
application.
WP(C) 105/2012
8. This writ petition comprises of fourteen (14) petitioners. In this writ
petition, apart from the University of Delhi and the college concerned,
which is, Janki Devi Memorial College (JDM College), the University
Grants Commission (UGC) is also impleaded as a party.
8.1 In this case as well, the petitioners claim to have attempted to access
information with regard to whether or not they had exercised option for
switch over by taking recourse to the RTI route. The RTI application,
however, appears to have been filed by a third party, one, Dr. S.K. Laroiya.
This application was filed on 12.11.2011, with the UGC.
8.2 Interestingly, the answers of UGC to query nos.4 and 8 in the
application seem to convey that if employees were to exercise their option
for continuing in CPF Scheme after 30.09.1987 then, they would
automatically stand covered under the Pension Scheme, and that, in this
behalf, UGC had issued necessary directions to the University of Delhi and,
through it, to its constituent colleges to comply with its letter dated
WP(C) 1490-1507/2006 & connected matters Page 13 of 33
11.11.2010 which, inter alia, indicated that no case for switch over to
Pension Scheme could be entertained after 30.09.1987.
8.3 It is averred that vide letter dated 08.03.2011 issued by UGC to JDM
College, it once again took the same stand, which is that, no change over
after 30.09.1987, was permissible.
8.4 Apparently, in the light of the said position taken by the petitioners, a
representation was addressed to University of Delhi, dated 25.01.2011
wherein, it was inter alia, indicated by some of the petitioners that since they
had not exercised their option to continue with CPF Scheme prior to
30.09.1987, they were governed by the Pension Scheme.
8.5 Similar representations were apparently also made between the
months of March and May, 2011.
8.6 In the counter affidavit filed on behalf of the JDM College, while a
stand has been taken that the petitioners should not be granted relief on
account of the fact that they failed to opt for the Pension Scheme, there is no
averment though with respect to, any option, having been filed by the
petitioners to continue with the CPF Scheme.
8.7 The UGC, in its counter affidavit, has briefly taken the following
stand :-
(i). that the option for employees for change over from CPF to Pension
Scheme was available only upto 30.09.1987;
(ii). the revised options given to employees to return to Pension Scheme
were "absolutely incorrect and against the Rules";
WP(C) 1490-1507/2006 & connected matters Page 14 of 33
(iii). the fact that 30.09.1987 was the cut-off date was conveyed by the
UGC to the University of Delhi vide its letter dated 25.05.1999;
(iv). the UGC vide its communication dated 08.08.2001 had requested the
GOI through Ministry of Human Resources Development (in short MHRD)
to consider extension of the scheme of conversion, which was, however, not
agreed to as reflected in GOI's letter dated 27.09.2001. The stand of the
GOI as reflected in the said communication was based on its earlier
communication dated 19.06.2000 which, adverted to the fact that the matter
had been examined by the Ministry of Finance, GOI which had, in turn,
advised against grant of another option for change over from CPF to Pension
Scheme;
(v) In September 2002, letters were exchanged between the UGC and
MHRD, GOI as also between University of Delhi and UGC.
(v)(a) To be noted, letters exchanged amongst the entities referred to above
have been appended with the counter affidavit of UGC.
(v)(a)(i) The letters exchanged between the UGC and MHRD, GOI are
dated: 03.09.2002, 24.10.2002, 26.03.2007, 28.03.2007, 11.05.2007,
26.09.2008, 10.09.2008;
(v)(a)(ii). In so far as correspondences exchanged between University of
Delhi and UGC are concerned, these are dated : 28.02.2003, 23.09.2003,
21.12.2006.
WP(C) 1490-1507/2006 & connected matters Page 15 of 33
(v)(a)(iii). Apart from the above, there is a reference to representations by
teachers, who were employed with University of Delhi and colleges
affiliated to it, prior to 01.01.1986.
(v)(b). The sum and substance of the correspondences referred to
above is, that while UGC was sympathetic to extension of the date of
conversion till at least 31.03.1998, it did not want to take the burden of
pension liability of the employees if, GOI was not agreeable to the extension
of date beyond 30.09.1987. (see letter dated 03.09.2002). As a matter of
fact, UGC sought instructions in the matter from the GOI, which vide its
letter dated 24.10.2002, advised UGC, being the funding agency for Central
Universities and deemed Universities, to take a decision at its end without
referring the matter to MHRD.
(v)(b)(i). The UGC, therefore, on its part vide its communication dated
23.09.2003, informed University of Delhi that it could not grant, a
retrospective, one time change over from CPF Scheme to Pension Scheme.
(v)(b)(ii). What interestingly, though, emerges from the correspondence,
is that, since several institutions, such as, IIT Kanpur and other autonomous
institutions such as, the Department of Atomic Energy and CSIR had
extended the date of switch over qua its employees - UGC's request that the
conversion date be extended till 31.12.2003, as a new Pension Scheme had
kicked-in vis-à-vis persons joining the University on or after 01.01.2004,
was declined by MHRD. (see letter dated 26.03.2007).
(v)(b)(iii). I must, however, at this point extract the stand taken by the
University of Delhi in its letter dated 21.12.2006, addressed to the UGC
WP(C) 1490-1507/2006 & connected matters Page 16 of 33
which, seemingly attempts to demonstrate the disparity between employees
who were appointed before 01.01.1986 and those who were appointed on or
after 01.01.1986. The apparent disparity, according to the University of
Delhi, stemmed from the fact that those who were appointed prior to
01.01.1986 were not given an option of switch over. The relevant extract
from the letter of University of Delhi is set out hereinbelow.
"...I have received representations from 376 teachers of constituent
colleges and departments of this University addressed to the
Chairperson, UGC, requesting for the grant of a fresh option to
switch over from the CPF to the GPF cum pension scheme. All of
them were appointed before 1.1.1986.
The representations have drawn attention to the huge disparity
between those on the GPF cum pension scheme and those on the
CPF scheme. This is because over the years and especially in the
last few years - Government decisions have led to a situation
where those entitled to pensionary benefits have been placed in a
far more advantageous position that those entitled to CPF
schemes. As a result of the Fifth Pay Commission's
recommendations, 40% of pensions can now be commuted, giving
a huge lump payment to pensioners. The communication is
restored after fifteen years. Those on CPF get only a lump
payment which includes their own contribution. Pensions are now
fully indexed to inflation and their nominal value rises twice every
year, in the case of those on CPF, the Government - keeping in
view its overall fiscal and macro-economic strategy has reduced
interest from a high of 12% in 1998 to 8% today. While the high
interest rates which made CPF schemes attractive have come
down, the nominal value of pensions keeping going up because of
inflation indexing.
All this has created a significant disparity between those on GPF-
cum-pension and those on CPF schemes. According to a rough
calculation, this could run into several lakh rupees over a period of
time in the case of two identically placed professors.
WP(C) 1490-1507/2006 & connected matters Page 17 of 33
I think there is merit in thë request that those who continue to be
on the CPF scheme should be given a fresh option to switch over
to the GPF cum pension scheme instead of taking the legalistic
stand that those on CPF opted for the scheme. The Government,
as a fair employer, may kindly take action to remove the growing
inequality between those on CPF and those on GPF cum pension
schemes. I would, therefore, request you to please take up the
matter with the Ministry of HRD and the Ministry of Finance to
allow a fresh option to those on the CPF scheme to come over to
the GPF-cum-pension scheme..."
WP(C) 2028/2012
9. In so far as this petition is concerned, it appears to have been filed by
a person (i.e., Shri B.R. Gupta), who was initially part of WP (C)
1490/2006-507/2006. As indicated above, he was deleted from the array of
parties vide order dated 04.04.2011, based on an application moved by him,
being: CM No.4814/2011.
9.1 It is averred by Shri. B.R. Gupta that he withdrew his writ petition on
the assurance of the respondents that his case for conversion would be
considered only if, he withdrew the matter pending in court. In this behalf,
he also blames his lawyer with regard to purported incorrect advice received
by him.
9.2 The facts adverted to in this petition are similar to those referred to
in WP(C) 1490/2006-1507/2006 untill the stage, the petitioner, was deleted
from the array of parties in WP (C) 1490/2006-1507/2006.
9.3 The events, post 04.04.2011, as articulated in the writ petition, are
suggestive of the fact that the petitioner approached respondent no.2 College
vide communication dated 15.04.2011.
WP(C) 1490-1507/2006 & connected matters Page 18 of 33
9.4 The petitioner, also avers that, the concerned College i.e., Shivaji
College vide communication dated 19.08.2011, forwarded his case to
University of Delhi for consideration of switch over to Pension Scheme. In
the very same communication, Shivaji College also highlighted the fact that
the petitioner had remitted a sum of Rs.2,44,312.52 to facilitate a switch
over, despite which, the petitioner's case was rejected by University of Delhi
vide its letter dated 29.08.2011, which was forwarded by Shivaji College to
the petitioner vide its communication dated 19.09.2011.
9.5 The petitioner, made a request for reconsideration of his case to
Shivaji College vide letter dated 20.09.2011. A reminder was sent in that
behalf on 30.11.2011, in which, a reference was made to one Sh. Bhagwati
Prasad, whose case for change over to Pension Scheme had been approved,
apparently, by University of Delhi on 11.02.2011.
9.6 Though the petitioner was informed by Shivaji College vide letter
dated 05.12.2011 to collect his CPF benefits, he declined the same vide a
return communication dated 16.12.2011.
9.7 Consequently, this court was moved by the petitioner on 11.04.2012.
9.8 As expected, Shivaji College in its counter affidavit brought to fore
the fact that the petitioner after withdrawing the writ petition approached
Shivaji College for processing his case under the Pension Scheme.
9.9 In so far as the UGC was concerned, its stand was no different than
that which was taken in WP(C) 105/2012.
SUBMISSIONS OF COUNSELS
WP(C) 1490-1507/2006 & connected matters Page 19 of 33
10. In the captioned writ petitions, on behalf of the petitioners, arguments
were advanced in WP (C) 1490-1507/2011 by Mr. Meet Malhotra, Sr.
Advocate assisted by Mr. Ravi S. Singh and Mr. Prateek Dahiya. In WP(C)
1422/2011, arguments were advanced by Mr. G.D. Gupta, Sr. Advocate
assisted by Mr. Mayank Goel; while in WP(C) 105/2012, arguments were
advanced by Mr. Shanker Raju. Similarly, in WP(C) 2028/2012, arguments
were advanced by Mr. Aviral Tiwari, Advocate. Mr. Mahender J.S. Rupal
argued on behalf of the University of Delhi, whereas UGC was represented
by Mr. Amitesh Kumar, Advocate.
11. The arguments on behalf of the petitioners were largely pivoted on the
judgement of the Supreme Court in the case of Union of India and Anr. Vs.
S.L. Verma and Ors., (2006) 12 SCC 53.
11.1 It was submitted that in none of the captioned cases the petitioners
had given an option for continuation under the CPF Scheme, therefore, by
virtue of a deeming legal fiction, the switch over took place automatically.
The consequent result of which, according to the learned counsel for the
petitioners was, that the petitioners should have got benefits under the
Pension Scheme after the cut-off date of 30.09.1987, stipulated in O.M.
dated 01.05.1987, was crossed.
11.2 It was further submitted that right to pension was a fundamental right
which could not be circumscribed by the respondents by taking recourse to
pleas such as delay and latches, specially, in the circumstances, that the
petitioners, were willing to disgorge the benefits with interest taken under
the CPF Scheme. Apart from relying on the judgement in S.L. Verma's
WP(C) 1490-1507/2006 & connected matters Page 20 of 33
case, the petitioners also relied upon the judgement of the Supreme Court in
the case of D.S. Nakara and Ors. Vs. Union of India, (1983) 1 SCC 305.
11.3 A submission was also made on behalf of the petitioner in WP(C)
4122/2011 that the notifications issued by the University of Delhi extending
the date for change over were not brought to the notice of the petitioners;
had these notifications being brought to their notice, the petitioners would
have taken appropriate steps in that behalf. In support of this submission,
reliance was placed on the judgement of the Supreme Court in Dakshin
Haryana Bijli Vitran Nigam Vs. Bachan Singh, (2009) 14 SCC 793.
11.4 Apart from the aforesaid judgement of the Supreme Court, reliance
was also placed on the judgement of the Division Bench dated 11.12.2009,
passed in LPA No.633/2009, titled : Maya Devi Vs. Govt. of NCT of Delhi
and Ors.
11.5 On the other hand, Mr. Rupal, appearing for the University of Delhi
submitted that pension was being disbursed out of funds received from
UGC, which included payment to those teachers who had switched over
from CPF Scheme to Pension Scheme after 30.09.1987 till 1998. In other
words, since UGC was the funding agency, pension could be granted, if so
ordered, only upon receipt of funds from the UGC.
11.6 Mr. Rupal, however, did not dispute the fact that University of Delhi,
from time to time, had extended the date for change over from CPF to
Pension Scheme.
11.7 Mr. Rupal, however, did emphasise the point that the petitioners were
guilty of delay and latches, and that, they should not be allowed to now seek
WP(C) 1490-1507/2006 & connected matters Page 21 of 33
a switch over from CPF Scheme to Pension Scheme. In support of his
submissions, reliance was placed by him on the judgement of the Supreme
Court in the case of: KVS and Ors. Vs. Jaspal Kaur and Anr., (2007) 6
SCC 13.
11.8 Mr. Amitesh Kumar appearing on behalf of the UGC raised a similar
contention. He submitted that O.M. dated 01.05.1987, was in the
knowledge of the petitioners, despite which, they had continued to
contribute towards CPF Scheme by allowing deductions to be made from
their salaries on a month to month basis. He submitted that the present writ
petitions were filed in 2011-2012, without any explanation as to the delay
and latches in approaching the court though, the cause of action for
conversion arose immediately after 30.09.1987.
11.9 Mr. Amitesh Kumar submitted that in somewhat similar
circumstances, the Supreme Court had declined to grant relief to parties.
Reference in this regard was made to the following judgements :-
(i) Union of India and Ors. Vs. M.K. Sarkar (2010) 2 SCC 59;
(ii) Naresh Kumar Vs. Department of Atomic Energy and
Ors., (2010) 7 SCC 525 and
(iii) Panchi Devi Vs. State of Rajasthan and Ors. (2009) 2
SCC 589.
12. In addition reference was also made to the judgement of the Supreme
Court in the case of KVS and Ors. Vs. Jaspal Kaur and Anr., cited by Mr
Rupal.
REASONS
WP(C) 1490-1507/2006 & connected matters Page 22 of 33
13. I must note at this juncture that both in the written submissions and in
oral submissions, Mr. Amitesh Kumar did concede that if, option to continue
under the CPF Scheme was not made by 30.09.1987, the concerned
employee would be deemed to have come over to the Pension Scheme.
According to the counsel, UGC's position in this regard is also reflected in
its letter dated 25.05.1999, addressed to the Registrar, University of Delhi.
13.1 With this preface let me consider the issue at hand in the background
of submissions made by counsels and the record.
14. In my view, the answer to the question: as to whether employees, who
had not issued any overt communication with regard to his / her desire to
continue with the CPF Scheme, stood covered by the Pension Scheme;
would largely depend upon the provisions of O.M. dated 01.05.1987, itself.
14.1 It is not in dispute before me that O.M. dated 01.05.1987 was adopted
by the University of Delhi vide notification dated 25.05.1987 read with
notification dated 04.06.1987, pursuant to an approval received in that
behalf from its Vice Chancellor. Therefore, much would depend, in my
opinion, upon the language of the relevant clause of O.M. dated 01.05.1987.
The said O.M. clearly applies to all employees who were CPF beneficiaries
on 01.01.1986. Clause 3.1 read with clause 3.2 is plainly indicative of the
fact that all such employees, who are CPF beneficiaries, shall be deemed, to
have, come over to Pension Scheme unless the employee(s) concerned
submitted his or her option to continue with the CPF Scheme. This option
had to be submitted in the prescribed form to the concerned Head of Office
by 30.09.1987. In case, no option was received by the Head of Office by
30.09.1987, employees were deemed to have come over to the Pension
WP(C) 1490-1507/2006 & connected matters Page 23 of 33
Scheme. Therefore, by legal fiction once, the deeming clause kicked-in,
those who did not submit their option form for continuation under the CPF
Scheme stood covered by the Pension Scheme. If there was any doubt with
regard to the language of clause 3.2, when read with clause 3.1, the
prescribed option form puts at rest all such thoughts. For the sake of
convenience, the prescribed form is extracted hereinbelow :-
"Form of Option
I _______________(name), employed as
_______________(designation) in the Ministry / Department/Office
of ____________________(name of the
Ministry/Department/Office), do hereby opt to continue under the
Contributory Provident Fund Scheme in terms of the Department of
Pension and Pensioners' Welfare, O.M. No.4/1/87-P..1.C.-1, dated
01.05.1987."
Place ____________
Date ____________
(Signature of the Optee)"
(emphasis is mine)
14.2 A perusal of the aforesaid form would show that the only option
which had to be exercised was with regard to continuation by an employee
under the CPF Scheme. The employee was not required to submit any
form if, he or she wanted to be covered under the Pension Scheme, as that
was automatic, in view of the deeming provision incorporated in clause 3.1
and 3.2 of O.M. dated 01.05.1987. This is precisely the reasoning given by
the Supreme Court in no uncertain terms in S.L. Verma's case. The relevant
observations of the Supreme Court are contained in paragraphs 4 and 7,
which for the sake of convenience, are extracted hereinbelow.
WP(C) 1490-1507/2006 & connected matters Page 24 of 33
"..4. The Central Government as also the respondent No.14-Bureau
of Indian Standards have proceeded on some legal misconception
that it was obligatory on the part of the said employees to give a
positive option for the said purpose. For the first time on 2.2.1999,
the respondent No.14 requested the Union of India for grant of
another chance to the respondents to switch over to pension scheme
stating that they purported to have exercised their option for CPF
Scheme on the cut-off date.
7. The Central Government, in our opinion, proceeded on a basic
misconception. By reason of the said Office Memorandum dated
1.5.1987 a legal fiction was created. Only 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 Conditions of Service of
Employees Regulations, 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
WP(C) 1490-1507/2006 & connected matters Page 25 of 33
scheme, which a fortiori would mean that they no longer remained in
the CPF scheme..." (emphasis is mine)
14.3 The argument advanced on behalf of the respondents based on the
judgement of the Supreme Court in the case of Union of India Vs. M.K.
Sarkar's case in my view cannot be accepted. The reason for the same are
several: First, the facts as set out in the judgement indicate that the Pension
Scheme as formulated by the Railways in that case perhaps required exercise
of a positive option for switch over from CPF to Pension Scheme. Second,
eight (8) extensions were given in that behalf to enable the employee to
switch over. Third, the respondent employee in that case was in service, at a
point in time when the last extension was still valid. The employee,
however, voluntarily retired from service in October 1976 and, received his
contributory pension. Lastly, the respondent-employee in that case sought
to rake up the issue for the first time by way of a representation only in
October 1998.
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.
14.5 Clearly, the Pension Scheme as reflected in O.M. dated 01.05.1987
and the facts under consideration, in the present case, are different. There is
no requirement for a positive option being exercised for conversion to
Pension Scheme. On the cut-off date i.e., 30.09.1987, employees by a
deeming legal fiction got covered under the Pension Scheme, unless they
WP(C) 1490-1507/2006 & connected matters Page 26 of 33
chose to exercise a positive option to continue with the CPF Scheme by
30.09.1987.
14.6 Similarly, in Naresh Kumar's case as well, the employees were
required to exercise a positive option by a given date. The appellant in that
case, three days prior to the cut-off date i.e., 16.02.1998 exercised a positive
option for drawing pro rata monthly pension and family pension benefits as
against his claim thereafter to opt for combined benefits of civil and military
pension. The appellant, in that case had rendered service both in military
and civilian establishments, hence, his desire to change his option to the
combined benefits of civil and military pension. This plea of the appellant
was rejected, once again, on peculiar facts obtaining in that case having
regard to the fact that a positive option was exercised by him way back in
1998 from which he chose to resile by filing a writ petition in January 2007.
14.7 Panchi Devi's case is also distinguishable on facts. This case
pertains to the claim of pensionary benefits by a widow of a work-charged
employee. The husband of the appellant had died in 1978, while the right to
claim pensionary benefit by widows generally, of work-charged employees,
was made effective from 01.09.1982. The Supreme Court rejected the
appeal of the appellant-widow of the work-charged employee, on the ground
that benefit which came into existence after the death of her husband, could
not be extended to her, as the amended rule in that behalf, was clearly
prospective. The Supreme Court after discussing the merits of the matter
sustained the view taken by the High Court that the petition could not be
entertained on the grounds of delay and latches. In my view, the Panchi
Devi's case is clearly distinguishable.
WP(C) 1490-1507/2006 & connected matters Page 27 of 33
14.8 Similarly, the facts in KVS's case are also distinguishable as, the
Supreme Court found that the Scheme provided for an option to the
employees to switch over from CPF Scheme to Pension Scheme. The court
also found that even though the appellant was not able to produce the
original option form which was indicative of the fact that the employee was
desirous of continuing under the CPF Scheme, the attendant circumstances
showed that she chose to remain under the CPF Scheme. As indicated
above, much would turn on the terms of the Scheme in issue.
14.9 O.M. dated 01.05.1987, gave no such choice to the employees. A
plain reading of the provisions show that employees automatically stood
covered under the Pension Scheme.
15. As indicated above, the University of Delhi, at one stage, with respect
to employees who were in service prior to 01.01.1986, did seek to
demonstrate the unfairness in having those employees continue under the
CPF Scheme, which decidedly less beneficial, when compared to
employees, who were covered under the Pension Scheme only by virtue of
the fact that they were in employment on 01.01.1986, unless they,
consciously chose to straddle the contrary course.
16. The argument raised before me by the respondents, which veered
towards approbation, was based on the fact that petitioners had continued to
contribute under the CPF Scheme. This submission would not cut much ice
with me, having regard to the plain terms of O.M. dated 01.05.1987. If, the
cover under the Pension Scheme, gets triggered with effect from 30.09.1987,
the contribution by an employee and its receipt by the employer clearly
proceeds on a misconception of the provisions of O.M. dated 01.05.1987.
WP(C) 1490-1507/2006 & connected matters Page 28 of 33
As a matter of fact, this very argument was repelled by the Supreme Court,
in S.L. Verma's case, and I think, for good reason. Consequently, there is
no room for entertaining such an argument. The relevant observations made
in paragraph 7, specific to this aspect, are, once again, extracted hereinafter.
"..It may be right 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.." (emphasis supplied)
17. This brings me to the submissions advanced by the respondents that
the writ petitions should be dismissed in limine on the ground of delay and
latches. As a matter of fact, the argument dealt with above with regard to
the petitioners' contribution to CPF Scheme was made in support of this
submission, as well.
17.1 In my opinion, the petitions in the instant case cannot be dismissed on
the ground of delay and latches for the following reasons. Firstly, consistent
with the provisions of O.M. dated 01.05.1987, the petitioners were not
required to carry out an overt act to get cover under the Pension Scheme.
The fallacy, if any, was that of the respondents who sought a positive option
in that behalf. The respondents, in my view, misconstrued the contributions
towards CPF Scheme as an act which could unilaterally alter the provisions
of O.M. dated 01.05.1987. Therefore, in that sense, the argument of delay
cannot be advanced by the respondents.
17.2 Secondly, the delay if at all of the petitioners was in making
representations to the respondents to correct the record. The inter se
WP(C) 1490-1507/2006 & connected matters Page 29 of 33
correspondence exchanged amongst the UGC, University of Delhi and the
MHRD would show that MHRD did not relent on varying the provisions of
O.M. dated 01.05.1987. Though, there was, a slight thaw in the position of
MHRD when, vide letter dated 24.04.2007, it sought details qua the
financial ramifications of extending the date of switch over, nothing fruitful
emerged from this query as UGC, could not supply the necessary
information. This is reflected in UGC's letter dated 11.05.2007 addressed
to MHRD.
17.3 The delay, thus, in approaching the court is largely explained. The
respondents, who were otherwise sympathetic to the cause of the petitioners,
cannot take this plea in court when they were, in a sense, complicit in the
cause of the petitioners as outside, the litigation periphery they supported
demand for variation of the provisions of O.M. dated 01.05.1987,
wholeheartedly. The cause for grievance, therefore, continued to remain
operative vis-a-vis the petitioners. The failure on the part of the respondents
to cover the petitioners under the Pension Scheme, if not a continuing
wrong, certainly fell within the realm of a successive wrong, when each time
the respondents failed to correct the record. [See observations of the
Supreme Court in Union of India & Ors. vs Tarsem Singh (2008) 8 SCC
648 and State of Madhya Pradesh & Ors. vs Yogendra Shrivastava (2010
12 SCC 538]. The cause of action will, however, not survive where
employees have collected their dues under the CPF Scheme without protest
whether by institution of an action in court or otherwise. In so far as arrears
of pension are concerned in Tarsem Singh case (which was the case of
disability pension), in paragraph 8 at pages 651-652, the following principle
WP(C) 1490-1507/2006 & connected matters Page 30 of 33
is enunciated. For the sake of convenience, the relevant portion is extracted
hereinbelow:
"..... In this case, the delay of sixteen years would affect
the consequential claim for arrears. The High Court was not
justified in directing payment of arrears relating to sixteen
years, and that too with interest. It ought to have restricted
the relief relating to arrears to only three years before the
date of writ petition, or from the date of demand to date of
writ petition, whichever was lesser. It ought not to have
granted interest on arrears in such circumstances.....
17.4 Since no arguments were addressed by counsels of either side with
respect to the arrears of pension, nor were any facts supplied in respect of
the same, I am not called upon to rule upon this aspect. Pertinently, no relief
is also sought in that behalf in any of the petitions. Therefore, this aspect is
not dwelled upon any further.
17.5 I must though add a caveat here, which is that, the position could be
materially different where say an employee chooses to take his benefits
under the CPF Scheme without protest (whether in the form of institution of
action in court or otherwise), and thereafter, approaches a court for a similar
relief. In that situation one may have to examine the issue of delay and
latches bearing in mind the fact that cause of action would perhaps come to
an end upon receipt of benefits under the CPF Scheme and, therefore, delay
would have to be reckoned from that date. Subsequent representations and
their disposal would not give a fresh cause of action to such employees.
17.6 In my opinion, if there was any unfairness in the petitioners being
allowed the cover of Pension Scheme, at this stage, is largely removed by
the fact that all the petitioners offered to return the benefits received under
WP(C) 1490-1507/2006 & connected matters Page 31 of 33
the CPF Scheme with interest in terms of clause 4.2 of the O.M. dated
01.05.1987. The only difficulty is that the rate of interest, which is to be
charged while recouping Government's contribution to the CPF Scheme, is
not provided in the said notification. As indicated above, at least one of the
petitioners i.e., Dr. (Mrs.) K. Prabha has already returned the employer's
contribution under the CPF Scheme.
18. Having regard to the dicta of the Supreme Court in D.S. Nakara's
case that grant of pension is a measure of socio-economic justice which,
provides economic security in the evening of one's life, and that, this
discernible purpose should inform the interpretive process involved in any
such scheme, and therefore, should receive liberal construction, I am
inclined to hold that the petitioners would stand covered under the Pension
Scheme. In my view, this conclusion accords with the decision of the
Supreme Court in S.L. Verma's case and the stand taken by the UGC with
regard to the interpretation placed on clause 3.2 of O.M. dated 01.05.1987.
19. The captioned writ petitions are accordingly allowed. I must,
however, clarify as to why, despite the petitioner, in WP(C) 2028/2012
seeking his deletion from array of parties, while being part of WP(C) 1490-
507/2006, is being given the same relief. I have carefully perused the
averments made in CM No.4814/2011, whereby it is indicated that the said
petitioner sought deletion on the ground that he had gathered information
through the RTI route that his case was being considered by the respondents
under the Pension Scheme. Since, the petitioner was retiring on 31.03.2011,
he was apparently, motivated to file the said application on 30.03.2011. It
was not as if the petitioner wanted to continue under the CPF Scheme which
WP(C) 1490-1507/2006 & connected matters Page 32 of 33
is what, albeit, erroneously, was sought to be portrayed by the concerned
College in its counter affidavit. There is no dispute with respect to the fact,
even in case of this petitioner, that he had not exercised an option to
continue under the CPF Scheme. As a matter of fact, though the benefit
owed to the petitioner under the CPF Scheme, had been received by Shivaji
college, the same was not collected by him, as is reflected in his
communication dated 16.12.2011, addressed to the said college.
20. Having regard to the above discussion, the respondents - University of
Delhi/ concerned Colleges will be entitled to recoup their contribution under
the CPF Scheme, if not already recouped, with simple interest at the rate of
8% p.a.
21. The writ petitions and all pending applications are disposed of in the
aforesaid terms.There shall be, however, no orders as to costs.
RAJIV SHAKDHER, J.
APRIL 30, 2014 yg WP(C) 1490-1507/2006 & connected matters Page 33 of 33