Central Administrative Tribunal - Bangalore
P V L Sujatha vs M/O Human Resource Development on 9 August, 2023
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OA.No.170/00225/2022/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00225/2022
DATED THIS THE 09TH DAY OF AUGUST, 2023
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
P.V.L. Sujatha
D/o P.V.S. Murthy
Aged about 65 years,
Retd. UDC, RIEM
R/a No. 485, 8th Main,
'H' Block, Ramakrishna Nagar,
Mysuru 570 022 .... Applicant
(By Shri M.R. Shailendra, Advocate)
Vs.
1. The Union of India,
Ministry of Human Resource
Development, Shastri Bhavan,
New Delhi 110 016
Represented by its Director
2. The National Council of
Educational Research and Training,
Sri Aurobindo Marg,
New Delhi 110 016
Represented by its Secretary
3. The Regional Institute of
Education (NCERT),
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Manasagangotri,
Mysuru 570 006
Represented by its Principal ...Respondents
(By Shri Gajendra Vasu, Senior Panel Counsel)
O R D E R (ORAL)
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"(1) Direct the respondents to consider the representation of the petitioner dated 21.05.2021 (Annexure-A11) and direct the respondents to consider the case of the applicant and to extend the benefits of GPF-cum-Pension scheme as applicable under the rules of Respondent, in the interest of justice and equity.
(2) To issue any other appropriate order or direction as this Hon'ble Tribunal deems fit in the facts and circumstances of the case, in the interest of justice and equity."
2. The facts in brief as stated by the applicant are that she was appointed as LDC/Typist on 09.02.1983 through selection. Thereafter, the applicant was promoted as UDC (adhoc) through selection on 27.01.1998 through departmental examination and was regularly promoted as UDC on 09.03.2000. The applicant 3 OA.No.170/00225/2022/CAT/BANGALORE stood retired on attaining the age of superannuation with effect from 31.12.2016. The applicant submits that the NCERT - Respondent No. 2 - had addressed a letter to the Principal, Regional College of Education, Mysore to get the consent of several officers including the applicant to switch over from CPF to GPF-cum-Pension Scheme as early as 1993. The applicant has been making several representations citing several instances where others had been permitted to switch over to GPF-cum-Pension scheme but the same remained unconsidered. Being aggrieved by the non-consideration of the representations to extend the benefits of GPF-cum-Pension scheme to the applicant, the applicant has approached this Tribunal.
3. Learned counsel Shri M.R. Shailendra representing the applicant submitted that one Shri T.J. Vidyapathi who was also working in NCERT, Mysore had filed OA No. 547/2016 before this Tribunal seeking permission to switch over from CPF to GPF- cum-Pension scheme. This Tribunal vide order dated 13.06.2017 dismissed the said application mainly on the ground of delay. Being aggrieved, the said Shri T.J. Vidyapathi had filed Writ Petition No. 43103/2017 before the Hon'ble High Court of 4 OA.No.170/00225/2022/CAT/BANGALORE Karnataka. The Hon'ble High Court by its order dated 17.07.2021 had allowed the Writ Petition directing to extend all benefits of GPF-cum-Pension scheme after making necessary deductions to the petitioner. NCERT, Mysore had preferred Special Leave Petition before the Hon'ble Apex Court against the said order of the Hon'ble High Court. The Hon'ble Apex Court by its order dated 06.01.2022 dismissed the SLP (C) No. 20532/2021.
4. The applicant though had given consent when the NCERT sought consent to change over from CPF to GPF-cum- Pension scheme along with others including Dr. T.J. Vidyapathi as early as 19.01.1993 but thereafter it was informed that the Ministry had not approved to the proposal. However, in view of the order passed by the Hon'ble Apex Court in SLP (C) No. 20532/2021, the applicant being similarly placed, is entitled to the said benefits. The applicant had submitted the representation citing the judicial pronouncements made by the Hon'ble Courts but the same has not yielded any positive response. Learned counsel has placed reliance on the judgment of the Hon'ble Apex Court in the case of University of Delhi vs Smt. Shashi Kiran & Ors in Civil Appeal No. 003797-003809/2022 (DD: 10.05.2022).
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5. Learned counsel Shri Gajendra Vasu representing the respondents submitted that the applicant has failed to exercise her option before 30.09.1987 as per OM dated 01.05.1987 issued by the Government of India. The benefit of GPF which was extended to Dr. T.J. Vidyapathi is based on the Court order cannot be claimed by the applicant on parity. The option once exercised by the applicant for the purpose of GPF or CPF being final based on which deductions were made from the salary of the applicant from the date of her retirement, she is estopped from claiming benefit of the Court dictums. As such, subsequent demands made by the applicant for change is barred by principles of estoppel. Learned counsel has placed reliance on the OM dated 01.05.1987 issued by the Government of India.
6. We have carefully considered the submissions of the learned counsel for the parties and perused the material on record.
7. The issue involved herein is no more res integra in view of the order passed by this Tribunal in OA No. 989/2019 dated 25.01.2023 (Smt. Anu Thomas vs Union of India & Ors). This Tribunal has analysed the relevant paragraphs of OM dated 01.05.1987 as well as the decisions of the Hon'ble Courts holding 6 OA.No.170/00225/2022/CAT/BANGALORE the field. The judgment of the Hon'ble Apex Court in Shashi Kiran, supra, has also been relied upon. It has been held that according to the OM dated 01.05.1987, by legal fiction the employees who were in service on 01.01.1986 would be deemed to have changed over to GPF unless an option is exercised consciously before the cut-off date. As such, denial of such benefit to the applicant (therein) which indeed has been extended to similarly placed persons, would be discriminatory and violative of Articles 14 and 16 of the Constitution. Accordingly, setting aside the impugned communication therein, directed the respondents (therein) to consider the services of the applicant (therein) as covered by GPF-cum-Pension scheme in terms of OM dated 01.05.1987 and Para 3 of OM dated 01.09.1988 (issued by KVS) and extend pensionary/retiral benefits to the applicant subject to recouping the contribution of CPF amount with simple interest at 8% per annum after providing an opportunity to exercise the option to the applicant (therein).
8. The relevant paragraphs of OM dated 01.05.1987 issued by the Government of India and the Circular Instructions dated 7 OA.No.170/00225/2022/CAT/BANGALORE 27.07.1987 issued by NCERT which is similar to OM dated 01.09.1988 issued by KVS are extracted hereunder:
"New Delhi, the 1st May, 1987 OFFICE MEMORANDUM xxxxxx xxxxxx "3. All CPF beneficiaries, who were in service on 1.1.1986 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.
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 30.9.1987 in the form enclosed if the 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."
"NATIONAL COUNCIL OF EDUCATIONAL RESEARCH & TRAINING SRI AUROBINDO MARG, NEW DELHI - 16 F.15-4/87-EC 27.07.87 8 OA.No.170/00225/2022/CAT/BANGALORE (E.C. Section) Subject: Change of the Central Government employees from the Contributory Provident Fund Scheme to Pension Scheme - Implementation of the recommendations of the Fourth Central Pay Commission.
--------------
Govt. of India have been giving repeated options to the employees governed by CPF Scheme to switch over to Pension Scheme. The Fourth Central Pay Commission has now recommended that all CPF beneficiaries in service as on January 1, 1986 should be deemed to have come over to the Pension Scheme on that date unless they specifically opt to continue under the CPF Scheme. A copy of O.M. No. F.4- 1/87-PIC-I dated 1st May, 1987 issued by Ministry of Personnel, Public Grievances and Pensions, Department of Pension and Pensioners Welfare is enclosed. In the light of decisions taken in the aforesaid O.M., all the Council employees who are still continuing with CPF Scheme are requested kindly to exercise their option specifically if they want to remain in CPF Scheme, to the concerned Establishment Section latest by 30.9.1987 failing which they will be deemed to have switched over to Pension Scheme w.e.f. 1.1.1986."
9. It is appropriate to refer to the judgments holding the field in order to collate the legal principles enunciated by the Hon'ble Courts relating to the issue on hand. 9
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10. In Union of India & Another vs S.L. Verma & Others in Civil Appeal No. 2723/2005 (DD 28.11.2006), the Hon'ble Apex Court considering the case of employees of Bureau of Indian Standards created under the Bureau of Indian Standards Act, 1986, a statutory authority coming under the administrative control of Ministry of Consumer Affairs referred to the Office Memorandum dated 01.05.1987 issued by the Government of India inasmuch as employees to switch over from CPF to GPF pension scheme, held that "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 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 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 10 OA.No.170/00225/2022/CAT/BANGALORE 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."
11. In Johnson P John vs The Assistant Commissioner, KVS & Others in OA No. 457/2011 (DD 22.03.2012), the Central Administrative Tribunal (Ernakulam Bench) has held as under: 11
OA.No.170/00225/2022/CAT/BANGALORE "7. Arguments were heard and documents perused. Though the respondents have contended that the applicant had opted for CPF, no such option stated to have been exercised has been produced, nor did the respondents give the details thereof. In fact, the question of asking for option from an employee whose induction in the service is posterior to 01.09.1988 does not arise at all. The reference vide Annexure R-1 relates to post 01.01.2004 entrants and not to the applicant. The applicant is thus right when he asserted that the said government order is alien to his case. Apparently, the respondents have by mistake applied the CPF scheme to the applicant, whereas, the same was not holding the field at the time when the applicant was inducted into the service."
12. The Hon'ble High Court of Kerala in O.P. (CAT) No. 597 of 2013 (DD 13.08.2013), having held that the appointment of respondent could be reckoned as Post Graduate Teacher as relevant to consider as to when he was appointed in KVS for the purpose of coverage under the GPF scheme proceeded to observe that the Office Memorandum issued by the KVS shows in paragraph 2 thereof, among other things, that persons joining KVS service on or after 01.01.1986 shall be governed only by the GPF-cum- Pension scheme and will have no option for CPF scheme. Having found that the respondent therein had joined as Post Graduate 12 OA.No.170/00225/2022/CAT/BANGALORE Teacher on 06.10.1988 held that he could be covered only under the GPF scheme. Resultantly, the Original Petition was dismissed dissuading from imposing costs taking into consideration the request made by the learned counsel for the petitioner - KVS to which the respondent has expressed no resentment.
13. In A.P. Verma vs NCERT in W.P. (C) No. 8489/2011 (DD 25.02.2013), the Hon'ble High Court of Delhi has held thus:
"13. Therefore, when similarly placed employees of the respondent have been extended the benefit, it would be unreasonable and improper to deny to the petitioners the benefit of the GPF/Pension scheme merely because they were earlier engaged in the service of the respondent NCERT. In this behalf we must observe that the petitioners had been put on probation for a period of two years subsequent upon their appointment to the relevant post in PSSCIVE, Bhopal. The Tribunal failed to appreciate that it is settled law that once a person is appointed to a substantive post through direct recruitment in an open selection after competing with internal and external candidates the appointment on the said post is a fresh appointment. Therefore, in our opinion, the petitioners have been subjected to hostile discrimination, although they were appointed by the same recruitment procedure as others, only because they were working with one of the establishments of the respondent earlier. In our view the same constitutes unequal treatment 13 OA.No.170/00225/2022/CAT/BANGALORE amongst equals and is violative of Article 14 of the Constitution of India."
14. In Shashi Kiran and Others vs Union of India and Others in LPA No. 410/2014 and connected matters (DD 24.08.2016), the Hon'ble High Court of Delhi segregated the employees into 3 categories. The employees who did not exercise any option to continue under CPF but continued to make contribution to CPF were called as Virmani's batch. The second batch was referred to as the Shashi Kiran batch where the University staff, who constituted the writ petitioners, had consciously opted for the CPF benefits. Their grievance was that of discriminatory exclusion. They had approached the Court, contending that when they sought for options, the respondents refused to extend it, saying that the previous extensions had ended and later, that the UGC and the Central Government had refused to grant approval. The discrimination complained was that even though the deadline of 30.09.1987 was not deemed sacrosanct by the University, a large number of employees who had not opted either way were allowed to switch over to the Pension Scheme through options given over 14 years, by 12 different extensions. The third batch is the N.C. Bakshi batch. In Bakshi's batch, all the 14 OA.No.170/00225/2022/CAT/BANGALORE employees opted for the CPF benefits, after the cut-off date pursuant to the extension given by the UGC and the University. The Virmani's batch would be relevant in the present set of facts. The learned Single Judge allowed the petition filed by the employees. In the LP Appeal, the Division Bench held that the employees who have not filled option have come out of the scheme and migrated to GPF. Accordingly, the Hon'ble High Court of Delhi held that when the appellants opted for CPF benefits, they did so with premonition of future developments. The net result was that as between two individuals in the same grade and post, carrying the same pay scale, one who opted for the Pension Scheme was entitled to a substantial amount and future adjustments in pension whenever Dearness Allowance were to be enhanced. However, for the appellants there was no such advantage; they saw a shrinking package on account of later developments - notably the drop in the interest rates. To compound their problems, the University's interpretation of a fairly clear Office Memorandum (01.05.1987) injected much confusion. The third factor is that even amongst University staffers, 12 extensions were given and a large number of options for the Pension Scheme were furnished - both in respect of those 15 OA.No.170/00225/2022/CAT/BANGALORE who opted for CPF earlier and those who did not. Taking the totality of circumstances, the University's insistence to pin the appellants to the options they originally exercised were held to be discriminatory. Yet another reason expressed by the Hon'ble Court was that neither the Central Government nor the UGC have furnished a single reason for why option to switch over to the Pension Scheme was permitted upto 31.12.2003 to several other autonomous institutions and denied to the appellants thereon. As regards Virmani's batch, the Hon'ble High Court of Delhi observed that 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 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. Hence, in that context, the Hon'ble High Court of 16 OA.No.170/00225/2022/CAT/BANGALORE Delhi held 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, there is no way they can succeed on the ground of laches or estoppel. Giving plain grammatical meaning to the language of the May 1987 OM, it has been categorically held that 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 the 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 the said 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 there is a continuing cause of action. Therefore, held that no infirmity was found with the learned Single Judge's order, in Virmani's case. 17
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15. On the appeal filed by the University of Delhi against the aforesaid order passed by the Division Bench of the Hon'ble High Court of Delhi, the Hon'ble Apex Court in University of Delhi vs Smt. Shashi Kiran & Ors, in Civil Appeal No. 003797- 003809/2022 (10.05.2022), has summarised the legal principles. The relevant paragraphs are quoted hereunder for ready reference:
"6. These three batches of cases were disposed by the learned Single Judge of the High Court by three separate decisions dated 30.04.2014 A) R.N. Virmani batch of cases
i) the reasoning that weighed with the that the learned Single Judge in R.N. Virmani batch of cases was:
"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 18 OA.No.170/00225/2022/CAT/BANGALORE 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 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."
ii) To arrive at the conclusion as mentioned above, the learned Single Judge relied inter alia upon the following passages from the decision of the Hon'ble Apex Court in Union of India and another v. S.L. Verma and others:
"..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 19 OA.No.170/00225/2022/CAT/BANGALORE 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 26 of 33 scheme, which a fortiori would mean that they no longer remained in the CPF scheme..."
(Emphasis supplied by the learned Single Judge) 20 OA.No.170/00225/2022/CAT/BANGALORE
iii) The argument made by the respondents was dealt with as under:
"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 29 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.."
iv) It was therefore directed:
"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
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v) The petitions were thus allowed.
xxxxx xxxxx
7. These decisions in all three batches of cases were appealed against by the University before the Division Bench, which dealt with each of these batches as under:-
A) R.N. Virmani batch of cases:
"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 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 22 OA.No.170/00225/2022/CAT/BANGALORE 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."
The appeals were thus dismissed.
B) N.C. Bakshi batch of cases:
"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 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 23 OA.No.170/00225/2022/CAT/BANGALORE 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."
The appeals in this batch of cases were thus dismissed. C) Shashi Kiran batch of cases:-
i) The distinction between cases in this batch as against the other batches was noted thus:-
"21. The last category is the Shashi Kiran batch. Here, the University staff, who constituted the writ petitioners, had consciously opted for the CPF benefits. Their grievance was that of discriminatory exclusion. They had approached the court, contending that when they sought for options, the respondents refused to extend it, saying that the previous extensions had ended and later, that the UGC and the Central Government had refused to grant approval.
"23. The discrimination complained of by the appellants in Shashi Kiran's batch of cases is that even though the deadline of 30.09.1987 was not deemed sacrosanct by the University (and through omission and, therefore, tacit approval, by UGC and the Central Government) a large 24 OA.No.170/00225/2022/CAT/BANGALORE number of employees who had not opted either way were allowed to switch-over to the Pension Scheme through options given over 14 years, by 12 different extensions. Given that the ground realities had undergone a sea change, the CPF scheme was unfeasible and had lost viability; on the other hand, the Pension Scheme was more beneficial. These appellants argue that in such a situation, when 2469 staff members opted for pension on various dates during these extensions, when they wished to do so, the respondents unfairly refused the benefit.
24. The learned Single Judge's view has some logic in it because the University refused the Pension Scheme benefits in case of those who had chosen it: in Virmani's case, by default (i.e. no option, which meant deemed option) and in the other cases, because of the option for CPF, given after the date prescribed. While the logic for directing relief in the first category (Virmani) is sound, the second category was given relief by ignoring that they consciously wished to switch-over to the CPF scheme, but after the cutoff date. Thus, the learned Single Judge ignored the conscious choice made only on the ground that the choice or option for CPF was after the cut-off date. Now, this has led to a peculiar situation where those who opted for CPF benefits have been divided into two categories: one, who opted before the cut- off date and two, those who opted after the cut-off date. The latter have been given relief. That is also the basis for refusing relief to the former, who are appellants in this batch.
25. As noticed earlier, 2469 staff members are enjoying the benefit of the Pension Scheme, on account of the choice or option made by them......."
ii) It was thus observed:
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OA.No.170/00225/2022/CAT/BANGALORE "26. If these facts are taken together with the Central Government's conceded stand in permitting staff members and employees in other institutions, including educational institutions such as IIT Kanpur, the Department of Atomic Energy and Council for Scientific and Industrial Research to opt in extended dates for switch-over qua its employees, the rejection of UGC's request that the conversion date be extended till 31.12.2003, reveals the arbitrariness and non-application of mind by the Central Government.
27. That the Central Government permitted change over as late as till 31.12.2003, i.e before the sixth pay commission recommendations (introducing CPF benefits to all those employed later, universally with effect from 01.01.2004). This aspect assumes critical importance, because the Central Government (and UGC) admit that all those who opted after the cutoff date (and many of them having opted for CPF earlier) have been granted benefits under the Pension Scheme. The ground realities with respect to the nature of benefits that accrue to CPF optees in comparison with GPF/Pension optees paints a stark picture. One should keep in mind that while opting for such schemes, employees cannot gaze into the crystal ball, as it were, and speculate whether the existing state of affairs would continue. At the time when these options were sought and given, those opting for CPF were reasonably certain that having regard to the nature of contributions and the rate of interest, the end package would compare favourably with Pension optees, with respect to returns earned at the stage of superannuation.
In other words, when the options were given, these appellants were in employment; neither they, nor for that matter the respondents could have visualized a drastic fall in the interest rates, which severely undermined the CPF option and shrunk the ultimate lump sum CPF 26 OA.No.170/00225/2022/CAT/BANGALORE benefit available to these appellants. While examining whether a statute once valid and upheld as such on the ground of Article 14 ceases to be so due to later developments and with passage of time, the Supreme Court has declared in a number of judgments that the earlier declaration of validity or basis of classification cannot be the basis to deny the arbitrariness of the law, if it is proved to be so later (Refer to State of Madhya Pradesh Vs. Bhopal Sugar Industries (1964) 6 S.C.R. 846; Narottam Kishore Dev Varma and Ors. Vs. Union of India and Anr. (1964) 7 S.C.R. 55 ; H.H. Shri Swamiji of Shri Admar Mutt etc. vs. The Commissioner, Hindu Religious & Charitable Endowments Department and Ors. (1980) 1 S.C.R. 368; Motor General Traders and Anr. Etc. etc. vs. State of Andhra Pradesh and Ors. etc. 1984 (1) S.C.R. 594.) In H.H. Shri Swamiji of Shri Admar Mutt etc (supra) it was held that:
"there is a firm foundation laid in support of the proposition that what was once a non-discriminatory piece of legislation may in course of time become discriminatory and be exposed to a successful challenge on the ground that it violated Article 14 of the Constitution."
28. In this case, clearly when the appellants opted for CPF benefits, they did so without premonition of future developments.
The net result was that as between two individuals in the same grade and post, carrying the same pay scale, one who opted for the Pension Scheme was entitled to a substantial amount and future adjustments in pension whenever Dearness Allowance were to be enhanced. However, for the appellants, there was no such advantage; they saw a shrinking package on account of later developments - notably the drop in interest rates. Now, interest at the rate or anyway, somewhere near the 27 OA.No.170/00225/2022/CAT/BANGALORE rates, which prevailed when the scheme was introduced, was one of the significant basis for the CPF scheme. With a drastic change in the rates, those opting for CPF were at a grave disadvantage. To compound their problems, the University's interpretation of a fairly clear Office Memorandum (dated 01.05.1987) injected much confusion. The third factor is that even amongst University staffers, 12 extensions were given and a large number of options for the Pension Scheme were furnished - both in respect of those who opted for CPF earlier and those who did not. Taking the totality of circumstances, the University's insistence to pin the appellants to the options they originally exercised is discriminatory.
29. The other reason why this court is inclined to allow this appeal is that neither the Central Government nor the UGC have furnished a single reason for why option to switch-over to the Pension Scheme was permitted up-to 31.12.2003 to several other autonomous institutions and denied to the appellants. This singular omission to say what compelled the Central Government to deny the petitioners the benefit of switch-over, while permitting those in other institutions, in the opinion of the court, clearly amounts to discrimination. The mere fact that the petitioners are working in the University whereas the other employees work in other institutions is not sufficient, given that the consistent stand is that options once given cannot be altered. Therefore, it is held that denying the right to opt to the Pension Scheme in the case of the Shashi Kiran batch is unsustainable; it has resulted in arbitrariness."
The appeals in this batch of cases were thus allowed. 28
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8. The University accepted the decision in R.N. Virmani batch of cases and as such no appeal has been preferred. It, however, is in appeal in the other two batch of cases. At this stage, some of the documents which were not part of the record before the High Court but were placed before us, must be adverted to:-............"
In Shashi Kiran batch, it is observed thus:
"24. According to the notification dated 01.05.1987, the employees joining the service after 01.01.1986 would always be under GPF. With respect to those who were in service on 01.01.1986, said employees would be deemed to have "come over" to GPF unless an option to continue to be under CPF was consciously exercised before the cut-off date. Thus, when the Scheme was framed and was sought to be implemented, the concerned authorities must have taken into account the entire magnitude such as, the number of employees and the likelihood of impact on the management of the fund, so that reasonable returns can be effected by way of pension upon retirement of such persons. Going by the intent of the notification, those who were to opt for CPF, were an exception and the general rule was that everybody after 01.01.1986 would normally be covered by GPF. It is in this context that the number of original petitioners in Shashi Kiran batch of cases has to be seen. We are concerned with only 75 persons. On the other hand, the bulk of people namely 2469 employees were granted the choice of reverse switchover and they were allowed all the benefits under GPF. It 29 OA.No.170/00225/2022/CAT/BANGALORE can reasonably be said that when the notification dated 01.05.1987 was issued, the authorities were conscious of the possibility that all the employees may 'come over' to GPF. With that possibility in mind, the fund was constituted and the affairs were arranged. The shift of those 75 employees would not in any way affect the strength and the character of the fund if a direction that the entire contribution made by the authorities be returned with reasonable rate of interest is issued. These 75 petitioners had approached the Court in the year 2010. At this length of time, it is not as if any floodgates are going to open and there will be drain on the resources of the State. A direction can, therefore, be issued, as was done by the learned Single Judge in paragraph 20 of his Judgment in R.N. Virmani batch of cases and which aspect was mentioned in the letter dated 23.01.2017 referred to in paragraph 8 hereinabove, for recouping the contribution under CPF with 8% simple interest per annum.
25. Considering the circumstances on record, in our view, the decision rendered by the Division Bench of the High Court in Shashi Kiran batch of cases does not call for any interference except to the extent of direction for recouping of the contribution under CPF with 8% simple interest per annum. It is possible that at this length of time, some of the employees in Shashi Kiran batch of cases may not be interested in switchover to GPF. But an option must be afforded to them in such manner as the authorities deem appropriate."30
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16. In R. Renukadevi vs The Commissioner, KVS & Ors. in W.P. No. 25354/2015 (DD 05.01.2017), the Hon'ble High Court of Madras has observed thus:
"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."
Appeal preferred by KVS against this judgment has been dismissed by the Hon'ble Apex Court in Diary No. 10967/2018.
17. Central Administrative Tribunal, Principal Bench in the case of Chandra Kumar Ojha vs Union of India and Others in OA No. 100/3084/2015 (DD 06.01.2017), while considering the 31 OA.No.170/00225/2022/CAT/BANGALORE case of the applicant therein who was initially appointed as Trained Graduate Teacher on 06.08.1979 in KVS and was later on appointed to the post of Post Graduate Teacher (Biology) w.e.f. 04.09.1984, subsequently applied for the post of Principal and finally got appointed in the said post w.e.f. 05.07.2002 against the direct recruitment quota, held that the same very issue was decided by the Hon'ble High Court of Delhi in the case of A.P. Verma, supra. Reliance was also placed on NCERT vs Krishan Murari Gupta in Writ Petition (C) No. 8151/2016 (DD: 16.09.2016). Accordingly, held that applicant therein is entitled to be governed by GPF-cum-Pension Scheme w.e.f. 05.07.2002 from his joining the substantive post of Principal under direct recruitment quota with all consequential benefits.
18. In M.S. Panwar vs Central Administrative Tribunal, Jodhpur Bench in C.W.P. No. 5976/2017 (DD 04.01.2018), the Hon'ble High Court of Judicature for Rajasthan at Jodhpur had an occasion to deal with an identical issue. Placing reliance on the judgment of the Hon'ble Apex Court in S.L. Verma and Others, supra, allowed the Writ Petitions. However, there being no clarity whether the petitioners under compulsion took the amount lying to their credit in the CPF account, a direction was issued that 32 OA.No.170/00225/2022/CAT/BANGALORE employees contribution with accrued interest thereon and as credited on yearly basis would be refunded by the petitioners to KVS if they have received the same. No interest was ordered to be paid for the reason that no direction was issued for the payment of interest on the pension which has accrued to the petitioners.
19. The above decision was challenged before the Hon'ble Apex Court. However, the petition was dismissed and review filed was also dismissed.
20. In Amita Ajit Desai & Ors vs Union of India & Ors in W.P. No. 1331/2017 (DD 17.01.2019), the Hon'ble High Court of Judicature at Bombay held that the employees having not exercised any option to remain under CPF, they are deemed to have changed over from CPF to GPF. The claim for change over after retirement of the employees was allowed by the Hon'ble High Court. A Special Leave Petition (Diary No. 16882/2019) preferred against the said order was dismissed by the Hon'ble Apex Court.
21. In Gurmail Kaur vs The Commissioner, KVS in OA No. 153/2019 (DD 26.04.2022), owing to the disagreement 33 OA.No.170/00225/2022/CAT/BANGALORE between the two Hon'ble Members of the Jaipur Bench, a third Member was appointed to adjudicate on the matter. The Tribunal considering the legal position inasmuch as conversion from CPF to GPF came to the conclusion that the applicants therein were entitled for conversion from CPF to GPF.
22. Following the said decision, in Ashwani Trikha vs KVS in OA No. 611/2019 (DD 27.09.2022), the Central Administrative Tribunal, Jaipur Bench allowed the application directing the respondents 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 setting aside the impugned order.
23. In the recent judgment of the Hon'ble Apex Court in Shashi Kiran case, supra, the Hon'ble Apex Court even relating to the cases of the employees accepting option, having considered their claim, allowed to switch over to GPF. In the segregated batch of matters before the Hon'ble High Court of Delhi challenged further before the Hon'ble Apex Court in the batch of Virmani, it was argued that the petitioners therein allowed the deduction of CPF amounts from their salary hence, not entitled to change over 34 OA.No.170/00225/2022/CAT/BANGALORE to GPF. That argument was negated. Similarly yet another contention raised was regarding delay and laches. It has been held that the question of laches would not arise given in the matters of pension, there being continued cause of action. These findings of the Hon'ble High Court of Delhi has been upheld by the Hon'ble Apex Court in Shashi Kiran, supra.
24. At the cost of repetition, we observe that according to the OM dated 01.05.1987 and Instructions issued by NCERT dated 27.07.1987, by legal fiction the employees who were in service on 01.01.1986, would be deemed to have changed over to GPF unless an option was exercised consciously before the cut-off date. The intent of the said OM has not been achieved since no due care was taken by the NCERT at the relevant point of time i.e., the scheme coming into force. The General Rule of coverage under GPF would have been deviated only on the option to continue in CPF exercised by the employees. Keeping in mind the effect of the scheme, the fund would have been constituted. To balance the equity, a direction can, therefore, be issued, as directed by the Hon'ble Apex Court in Shashi Kiran, supra, reserving liberty to 35 OA.No.170/00225/2022/CAT/BANGALORE NCERT for recouping the contribution under CPF with simple interest at 8% p.a.
25. We have taken a similar view in OA No. 989/2019 (Smt. Anu Thomas vs Union of India & Ors., DD: 25.01.2023). The issue involved herein is squarely covered by the said decision, hence, we pass the following :ORDER:
1) The respondents are directed to consider the representation of the applicant dated 21.05.2021 (Annexure-
A11) and extend the benefit of GPF-cum-Pension scheme in terms of OM dated 01.05.1987 and Instructions of NCERT dated 27.07.1987 (Annexure-R1) referred to supra and extend pensionary/retiral benefits to the applicant subject to recouping the contribution of CPF amount with simple interest at 8% per annum.36
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2) OA stands disposed of in terms of above.
3) No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/ksk/