Orissa High Court
Dr. Dibakar Panigrahy & Others vs Berhampur University And Others ... on 14 July, 2020
Author: P.Patnaik
Bench: P. Patnaik
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No.13757 of 2015
An application under Articles, 226 and 227 of the Constitution of
India.
Dr. Dibakar Panigrahy & Others ....... Petitioners.
Versus.
Berhampur University and others .......... Opp.parties
For petitioners : Mr. Satya Mohanty
For opp.parties : Mr. B.S. Mishra,
Learned counsel for Universities.
Mr. J.P. Patra,
Learned Addl. Standing Counsel
PRESENT
THE HON'BLE SHRI JUSTICE P. PATNAIK
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Date of Hearing : 17.01.2020 : Date of judgment: 03.07.2020
P.PATNAIK, J. In the captioned writ petition, the petitioners have assailed
the action of the opposite party nos.2 and 4 in not allowing the
petitioners to switch over from the Contributory Provident Fund
Scheme of the University (CPF) to the Pension and General Provident
Fund Scheme (GPF) in view of the Statute 289(3) of the Orissa
University First Statutes, 1990 and the Syndicate decision dated
30.08.1997. Being aggrieved and dissatisfied with inaction of the
opposite parties, the petitioners have sought for quashing the letter
dated 23.03.2011 of opposite party no.4 under Annexure-8 to the
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extent it is in conflict with Statute 289(3) of the Orissa Universities
First Statutes,1990
2. Bereft of unnecessary details, the facts in brief are that
petitioner nos.1 to 5 are employees of the Berhampur University, who
had joined before the year 1990. Vide order dated 19.11.2019,
petitioner no.6-Dr.Subasini Pattnaik has been deleted from the cause
title of the writ petition. The petitioner nos. 7 to 10 are employees of
the Berhampur University who had joined after the year 1990. The
petitioners are both academic and non-academic employees of
Berhampur University. Prior to 1990, the Contributory Provident
Fund Scheme of the University was in vogue. In the Orissa
Universities First Statutes,1990, Chapter-V deals with the Terminal
Benefits of the Employees. In pursuance of the Statute-289 of the
Statues of 1990, the employees were provided with an option to
choose between the Pension Scheme as applicable to the State
Government employees i.e., Pension and General Provident Fund
Scheme (herein referred to as 'GPF') or the Contributory Provident
Fund Scheme of the University (CPF).
As per the Statute-289(1) an existing employee shall
exercise his option in writing for either the GPF or CPF within a
period of six months from the date coming into force of Statutes of
1990 and the employees recruited after the year 1990 to the service
of the University shall exercise their option either for the pension or
Contributory Provident Fund Scheme within a period of six months of
their appointment. However, Statute 289 (3) states that if any
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employee fails to exercise the option required under these statutes
within the prescribed time limit, he/she shall be deemed to have
opted for the Pension Scheme (GPF). As the provision under Statute
289 (3) being clear and unambiguous, the University authorities did
not allow some employees to change their option on the ground that
the option was after the cut-off date. On the representation of the
employees, the Syndicate had constituted a sub-committee to
examine the issue of change of the option by the employees after the
cut-off date and the Syndicate sub-committee after considering the
provisions of the Statutes of 1990 and considering that the change of
option from CPF to GPF not causing much administrative difficulties
recommended that the change of option from CPF to GPF be allowed
at any time before six months of their superannuation. However, no
change of option from GPF to CPF shall be allowed as per the
resolution dated 30.08.1997 of the Syndicate sub-committee vide
Annexure-3 to the writ petition. After recommendation of the sub-
committee, several employees were allowed to change their option
from CPF to GPF as evident from Annexure-4 series and in the
similar instances, the Government has permitted the employees of
Sambalpur University to change their option from CPF to GPF as has
been mentioned in the letter dated 22.08.1997 vide Annexure-5.
When the authorities did not change the option of the petitioners
from CPF to GPF, they made several representations to the
authorities requesting them to change their option from CPF to GPF
to avail their benefits under the GPF scheme as applicable to the
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universities employees vide Annexure-6 series and subsequent to the
receipt of representations from the petitioners, the University officials
have written several letters to opposite party no.2 to 4 seeking the
permission of the Government to change the option of the petitioner
from CPF to GPF as per Annexure-7 series. The opposite party no.3
vide its reply to the University dated 23.3.2011 has stated that the
change of option from CPF to GPF may be carried out as per
provision in Statute 289 (1) as per Annexure-8. In the backdrop of
the aforesaid facts, the petitioners have filed the writ petition
invoking the extra ordinary jurisdiction under Articles 226 and 227 of
the Constitution of India for redressal of their grievances.
3. Learned counsel for the petitioners submitted with
vehemence that the Statute 289(3) of the Statute 1990 is very clear
and unambiguously worded that if any employee fails to exercise the
option required under these statutes within the prescribed time limit,
he/she shall be deemed to have opted for the Pension Scheme. So
from the logical corollary to the aforesaid position there is no room for
any doubt or debate that an employee by default will be deemed to
have opted for Pension Scheme. In other words, those employees who
have not specifically exercised the option for CPF will be deemed to
have opted for GPF. Learned counsel for the petitioners further
submits that since the petitioners have not exercised their options
within the prescribed time under the Statute 289 (1), the petitioners
shall be deemed to have opted for GPF as per the Statute 289(3).
Further, the petitioners have also filed representations for change of
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option from CPF to GPF before the six months of superannuation as
has been decided vide resolution dated 30.08.1997 of the sub-
committee under Annexure-3.
Further the learned counsel for the petitioner submitted
that the impugned letter under Annexure-8 is an outcome of non-
application of mind since in the impugned letter dated 23.03.2011
Statute 289(1) has been referred to though the petitioner's case
comes under Statute 289(3).
Learned counsel for the petitioners further has forcefully
submitted that the impugned letter under Annexure-8 is fraught with
non-application of mind by the opposite party no.3. Since several
employees of Berhampur University and Sambalpur University have
been allowed change of option from CPF to GPF after expiry of time
limit prescribed under Statute 289(1). Therefore, the petitioners are
entitled to the benefit under Statute 289(3) for change of option from
CPF to GPF as per the Resolution No.188 dated 30.08.1997 of the
Syndicate sub-committee under Annexure-3.
Learned counsel for the petitioners in order to buttress
his submission has referred to the decision in the case of Simanchal
Rath v. Berhampur University wherein this Court vide order dated
24.03.2015 has inter alia directed to consider the representation of
the petitioner in the said case taking into consideration the
recommendations under provision 289(3) of the University Statute.
The petitioners stand in similar footing.
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Learned counsel for the petitioners has also referred to
the decision rendered by the Hon'ble Supreme Court in the case of
Union of India and another v. S.L. Verma and others: (2006) 12
SCC 53. Learned counsel for the petitioners further submitted that
as per paragraph-11 of the counter affidavit filed by the State
Government wherein it has been stated that all the petitioners will be
considered on the basis of their willingness to come from CPF
Scheme to GPF Scheme, then as per the norms the amount
contributed by the University is required to be deposited by the
employee concerned who happens to be beneficiary of the GPF
Scheme. Learned counsel for the petitioners also submitted that the
Rule-5(5) of "The Odisha Universities Employees' Pension Fund
(Administration Rules),2012" states that "The Comptroller of Finance
shall also deposit the amount contributed by the University to the
contributory provident fund together with interest accrued therein in
respect of such employees as have switched over or deemed to have
switched over from the contributory provident fund scheme to the
pension scheme in the account of the fund."
4. Per contra, counter affidavit has been filed by opposite party
no.4 wherein it has been stated that when the University authorities
sought permission for change of option from CPF Scheme to pension
scheme by the employees of the Berhampur University on the basis of
the decision of the Syndicate dated 30.08.1997 (Annexure-3), Govt. in
Higher Education Department in due deliberation of the duties, acted
upon such proposal of the University and clarified that, the change of
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option from CPF Scheme to pension scheme needed to be carried out
as per the provision of the statute 289(1) of the Orissa Universities
First Statute,1990 and held that, the decision of the Syndicate dated
30.08.1997 of Berhampur University is beyond the scope of the
statutes.
When, everything was clear and the University authorities have
clarified vide letter no.12923/HE dated 23.03.2011 under Annexure-
8 of the writ application to act according to the provisions mentioned
under the statute 289 of the Orissa Universities First Statute,1990 to
govern the issue of exercising option of the employees of the
University to come from CPF to pension Scheme (GPF Scheme), the
University concerned without taking any action at their level tried to
shirk the responsibility on Govt. by making correspondences as at
Annexure-7 series.
Further it has been stated that if the employee concerned fails
to exercise his option from CPF to pension scheme in time as
prescribed in the statute, it will be held that, he has opted for the
pension scheme as per clause-3 of Statute,289. It is to make clear
that in view of the aforesaid provisions made in the statute the
petitioners even though have not opted in time to come to the pension
scheme from CPF scheme of which they were in receipt, they can
avail the benefit of switching over to the pension scheme in view of
the above.
It has been submitted further the notion of the CPF scheme is
to benefit an employee after his retirement from the contribution
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made by him from his salary as well as the equal amount of
contribution made for the purpose by the employer concerned. But,
the pension scheme which includes GPF is the sole contribution of
the employee concerned from his monthly salary and after his
retirement he becomes eligible for availing pension as per the terms
and conditions of Pension Rules,1992. If at all in the present case,
the petitioners who are the employees of Berhampur University will
be considered on the basis of their willingness to come from the CPF
scheme to GPF scheme, as per norms the amount contributed by the
University in each month till the date of acceptance of their option as
employer, is required to be deposited by the employee concerned who
happens to be the beneficiary of the GPF Scheme.
5. Preliminary counter affidavit has been filed by opposite party
nos.1 and 2 wherein it has been submitted that the Berhampur
University hereinafter called as "the University" was established
under the Berhampur University Act,1966 and under the said Act
the Berhampur University statutes 1966 were framed by governing
inter alia the service conditions of its employees.
It has been submitted that as is found from Annexure-1 of the
writ petition, the petitioner nos.1 to 5 (except petitioner no.3) were
appointed within 10.01.1984 to 11.04.1985 when there was no
provision for pension for the employees of the University.
It has been further submitted that after joining of the said
petitioners a new Chapter was added to the Berhampur University
statutes 1966 on 28.5.1985 providing for exercising of option for the
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employees of the University to either opt for C.P.F. Scheme or for
pension scheme, and it was further provided that once such option is
exercised the same shall be final. It was further provided that such
option shall be exercised within six months failing which it would be
deemed to have opted for CPF Scheme. But the said petitioners did
not exercise any option within the prescribed period of six months
and therefore it was deemed that they had exercised their option to
remain under CPF Scheme. It is submitted that prior to this
(28.05.1985) there was no provision for pension scheme for the
employees of the University.
It has been further submitted that the petitioner no.3
joined the University on 17.09.1987 and he was also governed by the
statutes 237-AAC of 1966 Statutes and had to exercise his option
within one year from his joining i.e., 16.09.1988 and he having not
done that he is/was deemed to have opted for C.P.F. Scheme as
provided under statutes 237-AAE of 1966 Statutes. However, he
exercised his option on 10.05.1989 to remain under CPF Scheme and
the same was recorded in his service book as evident from Annexure-
A/I to the counter affidavit.
It has been further stated that on 19.11.1988 the Orissa
University employees conditions of service statutes,1988 "here in
after called as the 1988 statutes" came into force by governing the
conditions of service of the employees the Universities including that
of Berhampur University. Under Statutes 36(1) (2) of the 1988
statute, it was provided that an employee is to exercise option as to
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whether he desires to remain under CPF Scheme or pension Scheme.
It was also provided that option so exercised shall be final.
Further it has been submitted that the petitioner no.1 (Dibakar
Panigrahi) exercised his option under statute 36 (I)(II) of the 1988
statutes to remain under C.P.F. Scheme and the same was recorded
in his service book on 29.08.1989 as evident from Annexure-B/1 to
the counter affidavit.
It has been further stated that Sri Bijaya Kumar
Panda(petitioner no.2) exercised his option under statute 36 (I) (II) of
1988 statutes to remain under CPF Scheme and same has been
recorded in his service book on 29.08.1989 as evident from
Annexure-C/1 to the counter affidavit.
Further it has been submitted that similarly the petitioner no.4
Swarnanjali Mishra exercised her option under Statute 36 (I)(II) of the
1988 statutes to remain under CPF Scheme and same has been
recorded in her service book on 10.05.1989 as evident from the
Annexures-D/ and E/1 to the counter affidavit.
Similarly petitioner no.5 Sri Dillip Kumar Das exercised his
option on 12.05.1989 under 36 (I)(II) of the 1988 statutes to remain
under CPF Scheme and the same was recorded in his service book.
Copy of the option exercised by the petitioner no.5 on 12.5.1989 is
marked as Annexure-F/1 to the counter affidavit.
It has been further submitted that after the Orissa Universities
Act,1989 was enacted, the Orissa Universities first statute 1990
hereinafter called as the first Statutes 1990 came into force on
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01.01.1990 and the said statute was framed under Section 23(8) of
the Orissa Universities Act 1989.
Further it has been submitted that under the Statutes
289 of the first statute 1990, it was provided that the existing
employees who have not already exercised option under the statute
shall exercise their option in writing either for pension scheme or for
C.P.F. Scheme within a period of six months the statutes came into
force and such option shall be final.
It has been further stated that it would thus be seen that
employees who have not exercised their option under 1988
Statutes could exercise their option under Statutes 288 of first
statutes 1990 and therefore the aforesaid petitioners having already
exercised their option as stated earlier and the same having been
accepted by the University and recorded in their Service Book, the
same became final and there was no further scope for them to
exercise option under the first Statutes of 1990.
Further it has been submitted that though there was no
necessity for the above petitioners for exercising option under the
first Statutes of 1990 yet the petitioner no.1 Dr.Dibakar Panigrahi
exercised his option on 13.09.1993 to remain under CPF Scheme and
Sri Bijaya Kumar Panda the petitioner no.2 exercised his option on
11.11.1993 to remain under CPF Scheme. Sri Dillip Kumar Das, the
petitioner no.5 exercised his option in the year 1993 to remain under
CPF Scheme and the same has been recorded in his Service Book on
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17.07.1995 as evident from Annexures-G/1 and H/1 to the counter
affidavit.
It has been further stated that the said petitioners have
suppressed all such facts from this Court and have approached this
Court with unclean hands and, therefore, the writ petition is liable to
be dismissed.
Further it has been submitted that as is found from Annexure-
1 of the writ petition, the petitioners nos.7 to 10 were appointed in
between 23.05.1991 to 02.02.1993 by which time the Orissa
Universities first statutes 1990 framed under the Orissa Universities
Act,1989 had come into force.
6. Per contra counter affidavit has filed on behalf of
opposite party nos.1 and 2 to the rejoinder filed by the petitioners
wherein at paragraph-2 it has been submitted that petitioner nos.1
and 2 have never exercised their option before the year 1990. Such
statement of the petitioners are wrong and false in as much as the
petitioner no.1 Sri Dibakar Panigrahi had exercised his option on
11.05.1989 to remain under the C.P.F. Scheme. Similarly the
petitioner no.2 Sri Bijaya Kumar Panda had exercised his option on
04.05.1989 to remain under the C.P.F. Scheme.
Further it has been submitted that it would thus be seen
that not only the petitioners had suppressed the relevant facts from
this Court and have approached with unclean hands but also they
have stated false facts before this Court thereby making them liable
for committing contempt of this Court.
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7. In the backdrop of the respective pleadings as borne out
from the records, the seminal point which hinges for determination is
as to whether the case of the petitioners comes under Statute 289(1)
or Statute 289(3) of the Orissa Universities First Statutes 1990.
8. In order to dilate and delve into the contentious issue, it
would be relevant to refer Statute 289 which reads as under:
"(1) The existing employees who have not already
exercised their option under the Statutes shall exercise
their option in writing either for the pension scheme or
the Contributory Provident Fund Scheme under Statute
288 within a period of six months from the date these
Statutes come into force. The employees recruited
thereafter to the service of the University shall exercise
their option either for the Pension or Contributory
Provident Fund Scheme within a period of six months of
their appointment:
Provided that the employees who have crossed the
age of 58 years but have not attained the age of 60 years
shall also have the right to exercise their option as
aforesaid within a period of six months from the date
these statutes come into force, but not later than one
month prior to the date they attain the age of 60 years.
(2) The option as provided above, shall be exercisable
once only in respect of either Scheme which shall be final
irrespective of any change that may be made in any such
scheme from time to time. The fact of exercising such
option shall be recorded in the service book of the
employee by the Registrar or such other officer
nominated by him.
(3) If any employee fails to exercise the option required
under these Statutes within the prescribed time limit,
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he/she shall be deemed to have opted for the Pension
Scheme."
9. On perusal of the impugned order under Annexure-8 it
transpires that the opposite party no.4 has nullified the resolution of
the syndicate on the ground that the same is beyond the scope of the
statute 289(I) of the Orissa Universities First Statutes,1990.
10. The stand of the University is that once some of the
petitioners have exercised their options from Contributory Provident
Fund of the University (CPF) to the Pension is to be considered in the
light of the Statute 289 (1) of the Orissa Universities First
Statutes,1990. Moreover, there has been disputed assertion made by
the petitioners as well as the University with regard to exercise of
their options.
11. Counter affidavit filed by opposite party no.4 wherein the
assertion made in paragraph-10 is that if the employee concerned
fails to exercise his option from CPF to pension scheme in time as
prescribed in the statute, it will be held that, he has opted for the
pension scheme as per clause-3 of Statute, 289(1) of the Orissa
Universities First Statutes,1990. Further it is to make clear that in
view of the aforesaid provisions made in the statute the petitioners
even though have not opted in time to come to the pension scheme
from CPF scheme of which they were in receipt, they can avail the
benefit of switching over to the pension scheme in view of the above.
12. Rule-5 (5) of "The Odisha Universities Employees'
Pension Fund (Administration Rules), 2012" envisages that "The
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Comptroller of Finance shall also deposit the amount contributed by
the University to the contributory provident fund together with
interest accrued therein in respect of such employees as have
switched over or deemed to have switched over from the contributory
provident fund scheme to the pension scheme in the account of the
fund."
13. The Hon'ble Apex Court in the case of Union of India
and another v. S.L. Verma and others: (2006) 12 SCC 53 has
been pleased to observe the relevant portion in paragraph-7, which
is quoted hereunder :
"7. The Central Government, in our opinion,
proceeded on a basic misconception. By reason of
the said office memorandum dated 01.05.1987 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 respondents 1 to
13 in view of the legal fiction created, became the
members of the Pension Scheme. Once they
became the members 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. ... ... ..."
14. On the cumulative effect on the reasons and judicial
pronouncements, the impugned order under Annexure-8 dated
23.03.2011 passed by opposite party no.4 is quashed and set aside
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and further opposite parties are directed to consider the case of the
petitioners afresh in view of change of stance by the Government of
Odisha, Department of Higher Education with regard to change of
option from Contributory Provident Fund of the University (CPF) to
the Pension and General Provident Fund Scheme (GPF) as per
Statutes 289 (3) of the Orissa Universities First Statutes,1990, as
expeditiously as possible preferably within a period of three months
from the date of receipt of copy of this order.
15. With the aforesaid observation/direction, the writ
petition stands allowed.
......................
P.Patnaik,J.
Orissa High Court, Cuttack The 3rd July,2020/Gs