Central Administrative Tribunal - Jaipur
Dr Saroj Madhur vs Kendriya Vidyalaya Sanghthan on 26 April, 2022
1 O.A. Nos.153/2019, 254/2019,
4/2020 & 157/2020
Central Administrative Tribunal
Jaipur Bench,, Jaipur
O.A. No.153/2019
153/2019
with
O.A. No.254/2019,
.254/2019,
OA No.4/2020
and
OA 157/2020
(Through Video Conferencing)
Orders reserved on : 29.3.2022
Orders pronounced on ::26.4.2022
.2022
Hon'ble Mr. R.N. Singh, Member (J)
O.A. No.153/2019
Mrs. Gurmail Kaur, aged about 65 years, Wife of Shri
Balbir Singh,
Singh, Resident of 10/35, Malviya Nagar, Jaipur
(Raj.) - 302017.
The applicant has retired from K.V. No.3, Jaipur from the
post of PRT.
... Applicant
(through Advocate Shri K.K. Sharma
Sharma)
Versus
us
1. The Commissioner, Kendriya Vidyalaya Sangathan,
18, Shaheed Jeet Singh Marg, New Delhi
Delhi-16.
2. The Deputy Commissionere, Kendriya Vidyalaya
Sangathan, 92, Gandhi Nagar, Bajaj Nagar, Jaipur
Jaipur--
302015.
... Respondents
(through Advocate Shri V.D. Sharma
Sharma)
2 O.A. Nos.153/2019, 254/2019,
4/2020 & 157/2020
O.A. No.254/2019
Gur Dayal Khatri S/o Late Shri H.R. Khatri, aged 66
years, R/o 94/57, Gokhle Marg, Agarwal Farm,
Mansarovar, Jaipur-302020 (Rajasthan) (Retired as
Assistant from the respondent No.4) (M) 9261108880
Group-B.
....Applicant
(through Advocate Shri Vipul Diwakar with Shri Amit
Mathur)
Versus
1. Kendriya Vidyalaya Sangathan (KVS),
18, Institutional Area, Shaheed Jeet Singh Marg, New
Delhi-110016 through its Commissioner.
2. Joint Commissioner (Finance) Kendriya Vidhyalaya
Sangathan KVS), 18, Institutional Area, Shaheed
Jeet Singh Marg, New Delhi-110016.
3. Deputy Commissioner, Kendriya Vidyalaya
Sangathan, Regional Office, 92, Gandhi Nagar, Bajaj
Nagar, Jaipur-302015 (Rajasthan).
4. Principal, K.V. Eklingarh, Udaipur-313001
(Rajasthan).
... Respondents
(through Advocate Shri V.D. Sharma)
OA No.4/2020
Miss Vijay Laxmi Sharma D/o Late Shri G.D. Sharma,
aged around 62 years, R/o 2/3, Taliyan Chopade, Near
Bicharli School, Micharli Mohalla, Beawar-305202
(Rajasthan), Retired from the post of Primary Teacher in
Kendriya Vidyalaya, Beawar, Ajmer (Rajasthan).
....Applicant
(through Advocate Shri Vipul Diwakar with Shri Amit
Mathur)
3 O.A. Nos.153/2019, 254/2019,
4/2020 & 157/2020
Versus
1. The Joint Commissioner, Kendriya Vidhyalaya
Sangathan, 18, Institutional Area, Shaheed Jeet
Singh Marg, New Delhi-110016.
2. The Assistant Commissioner, Kendriya Vidyalaya
Sangathan, Regional Office, Bajaj Nagar, Jaipur-
302015.
... Respondents
(through Advocate Shri Hawa Singh)
OA 157/2020
Dr. Saroj Madhur Wife of late Shri Madhur Chand, aged
about 71 years, R/o Plot No. 63, Ganesh Vihar, Sirsi
Road, Jaipur - 302012 (Rajasthan). Retired from the post
of PGT (Bio), K.V. No. Kota (Rajasthan) Group-B (M)
8209640942.
....Applicant
(through Advocate Shri Vipul Diwakar with Shri Amit
Mathur)
Versus
1. Kendriya Vidhyalaya Sangathan (HQ), 18-
Institutional Area, Shaheed Jeet Singh Marg, New
Delhi-110016.
2. The Joint Commissioner, Kendriya Vidyalaya
Sangathan, (HQ), 18- Institutional Area, Shaheed
Jeet Singh Marg, New Delhi-110016.
... Respondents
(through Advocate Shri Hawa Singh)
4 O.A. Nos.153/2019, 254/2019,
4/2020 & 157/2020
ORDER
These OAs have come on being referred to the 3rd Member in view of difference of opinion between the Hon'ble two Members in their respective common Order/Judgment dated 17.1.2022 in the aforesaid OAs.
2. The order was reserved in the aforesaid OAs on 7.1.2022 by a Division Bench consisting of Hon'ble Mr. Dinesh Sharma, Administrative Member and Hon'ble Mrs. Hina P. Shah, Judicial Member. The Hon'ble Member (J) vide her common Order/Judgment dated 17.1.2022 allowed the aforesaid OAs in terms and observations made therein. However, the Hon'ble Member (A) disagreed with the Order of Hon'ble Member (J) vide his common Order dated 17.1.2022 for the reasons recorded therein and thus, the said Division Bench directed the Registry of this Tribunal to refer the matter to the Hon'ble Chairman on administrative side for nomination of 3rd Member or of Constitution of a Full Bench for consideration of these matters and, thus, these matters have been referred to me for consideration as a Third Member.
3. Though there is no dissent in the common Orders of the Hon'ble Members qua the factual matrix of the cases, 5 O.A. Nos.153/2019, 254/2019, 4/2020 & 157/2020 however, for the sake of convenience and clarity, the factual matrix as evidenct from the pleadings and submissions made on behalf of the parties are noted as herein below.
3.1 The applicant in OA 153/2019 was initially appointed as Primary Teacher (PRT) in July 1982 and retired on attaining the age of superannuation w.e.f. 30.6.2017.
3.2 The applicant in OA 254/2019 was initially appointed as LDC in the year 1977 and was further appointed as a direct recruit to the post of UDC in February 1983. The applicant was promoted to the post of Assistant in November 2011 and retired w.e.f. 29.2.2012 on attaining the age of superannuation. 3.3 The applicant in OA 4/2020 joined the services under the respondents as Primary Teacher on 20.10.1983 and retired from the services of the respondents on 31.7.2016 on attaining the age of superannuation. 3.4 The applicant in OA 157/2020 was initially appointed as PRT under the respondents in September 1983 and on direct recruitment basis, was appointed as 6 O.A. Nos.153/2019, 254/2019, 4/2020 & 157/2020 TGT (Bio) in September 1984. The applicant retired from the services of the respondents w.e.f. 30.6.2009 on attaining the age of superannuation.
4. In the 51st Meeting of BOG, Kendriya Vidyalaya Sangathan (hereinafter referred to as 'KVS') held on 31.5.1988, it was decided that KVS will implement mutatis mutandis the decision taken by the Government of India on the recommendations of IVth Pay Commission for the KVS employees for change over from CPF to Pension Scheme in the manner indicated in OM No.4/1/87-PIC-I dated 1.5.1987. Accordingly, vide KVS OM No.152-1/79- 80/KVS/Budget/Part.II dated 1.9.1988, it was decided that the persons joining service on or after 1.1.1986 shall be governed by GPF-cum-Pension Scheme and will have no option for CPF Scheme and the employees who would like to continue in CPF Scheme were, however, required to exercise a clear option to continue in CPF. It was made clear in the said OM that if no option is received by 28.2.1989, the employee(s) shall be deemed to have switched over to pension scheme.
5. In the aforesaid OAs, there are two types of cases. In the first type of cases, after the aforesaid OM dated 7 O.A. Nos.153/2019, 254/2019, 4/2020 & 157/2020 1.9.1988, the applicants have specifically stated that they have not given any option to continue in CPF Scheme and in another type of cases, subsequent to the aforesaid OM of 1988, the applicants have given option to continue in the CPF Scheme. Subsequently, in both types of cases, the applicants have subsequently preferred representations seeking switch over from CPF Scheme to GPF-cum- Pension Scheme. In few cases, the representations have been made before the applicants being retired and in a few cases even the representations have been made subsequent to their respective retirements. However, such requests of the applicants have not been acceded to and, therefore, the applicants have approached this Tribunal by way of the aforesaid OAs.
6. The respondents have filed their replies in the said OAs and in a few cases, rejoinder has also been filed.
7. The respondents have raised the preliminary objection to the effect that the OAs are barred by the limitation, delay and laches. Therefore, the OAs deserve to be dismissed. On merit, it is the case of the respondents that vide OM dated 1.9.1988, the persons joining service on or after 1.1.1986 shall be governed by GPF-cum- 8 O.A. Nos.153/2019, 254/2019,
4/2020 & 157/2020 Pension Scheme and will have no option for CPF Scheme and the employees, who would like to continue in CPF Scheme, were, however, required to exercise a clear option to continue in CPF. The provisions of OM dated 1.5.1987 of DOP&T are applicable only to civilian Central Government employees, who are subscribing to the CPF under Contributory Provident Fund Rules (India) 1962. The employees of KVS are not automatically governed by the said OM as KVS is an autonomous/statutory body and the said Scheme was implemented in KVS only by way of their OM dated 1.9.1988 vide which the employees were offered the option of switching over from CPF to GPF-cum- Pension Scheme. It was made clear in the said OM that if no option is received by 28.2.1989, the employee(s) deemed to have switched over to GPF-cum-Pension Scheme.
8. It is contended by the respondents that the applicants have either out of their own volition opted for CPF Scheme or have made a conscious decision to continue in the CPF Scheme knowing well that option once exercised will be final. However, the applicants have asserted that they have not given any option to continue 9 O.A. Nos.153/2019, 254/2019, 4/2020 & 157/2020 in the CPF Scheme. It is the case of the respondents that applicants have opted to continue in CPF Scheme and the copies of such options are not available and/or not traceable in view of passage of long years. However, there are various documents as secondary evident like pay bills, annual statements of CPF and Form 16 etc. issued to them from year to year on the basis of which it is clear that the applicants were aware that he/she is a member of CPF Scheme and not a member of GPF-cum-Pension Scheme.
9. On the other hand, arguments advanced on behalf of the applicants are that the circular/OM dated 1.9.1988 nowhere makes distinction between the employees, who were appointed prior to 1.1.1986 or after 1.1.1986. The said OM was also clear to the effect that unless there is a specific option for CPF Scheme, the employee(s) will be treated as covered by the GPF-cum-Pension Scheme as per the condition No.3 of OM dated 1.9.1988.
10. In the aforesaid facts, the issue has been framed by the said Division Bench in para 8 of the dissenting common Order/Judgment dated 17.1.2022 and the same reads as under:-
10 O.A. Nos.153/2019, 254/2019,
4/2020 & 157/2020 "8. The short question which requires our consideration is whether the applicants can be allowed to convert their benefits from CPF to GPF Scheme whether they have given their option or not to continue in CPF scheme.
11. Shri Amit Mathur, learned counsels for the applicants in OA Nos.254/2019, 4/2020 and 157/2020 has supported the common Order dated 17.01.2022 of the Hon'ble Judicial Member and in this regard and placed reliance upon the following judgments of this Tribunal, Hon'ble High Court(s) and Hon'ble Supreme Court :-
(i) OA No.411/2017, titled Ms. Kumudini Pandey vs. Commissioner, KVS, decided on 11.10.2018 by the Jodhpur Bench of this Tribunal;
(ii) OA No.1999/2014, titled Shri V.D. Pandey vs. Commissioner, KVS, decided on 4.4.2019 by the Principal Bench of this Tribunal;
(iii) OA No.854/2020 with OA No.912/2020, titled Shri Raminder Loth vs. Union of India and others, and another case, decided on 2.3.2021 by the Principal Bench of this Tribunal;11 O.A. Nos.153/2019, 254/2019,
4/2020 & 157/2020
(iv) OA No.972/2017, titled Smt. Saroj Sharma vs. Union of India and KVS, decided on 24.9.2019 by the Principal Bench of this Tribunal;
(v) OA No.157/2019, titled Mrs. Ina Barua vs. Commissioner, KVS, decided on 14.8.2019 by the Guwahati Bench of this Tribunal;
(vi) OA No.1248/2019, titled Smt. Usha Rajagopalan vs. Commissioner, KVS, decided on 3.6.2020 by the Madras Bench of this Tribunal;
(vii) OA No. 472/2016, titled Sh. Biraj Kumar Sarma vs. KVS, decided on 2.1.2020 by the Guwahati Bench of this Tribunal;
(viii) WP No.19215/2015, titled N. Subramanian vs. The Commissioner, KVS and others, decided on 24.2.2017, by the Hon'ble High Court of Judicature at Madras;
(ix) WP No.25354/2015, titled R. Renukadevi vs. The Commissioner, KVS and others, decided on 5.1.2017, by the Hon'ble High Court of Judicature at Madras;
12 O.A. Nos.153/2019, 254/2019,
4/2020 & 157/2020
(x) WP No.28092 to 28094 of 2015, titled Union of India and others vs. S. Subbiah and others and other connected cases, decided on 5.1.2017, by the Hon'ble High Court of Judicature at Madras;
(xi) WP No.24860 to 28094 of 2018, titled Mrs. Prema Nalinam Christian vs. Union of India and others, decided on 26.11.2018, by the Hon'ble High Court of Judicature at Madras;
(xii) D.B. Civil Writ Petition No.5976/2017 connected with D.B. Civil Writ Petition No.10662/2016, titled M.S. Panwar vs. UOI and KVS, and another connected case, decided on 4.1.2018, by the Hon'ble High Court of Judicature for Rajasthan at Jodhpur;
(xiii) D.B. Civil Writ Petition No.14158/2019 connected with D.B. Civil Writ Petition No.2815/2019, titled Gajendra Singh Rathore vs. UOI and KVS, and another connected case, decided on 22.10.2021, by the Hon'ble High Court of Judicature for Rajasthan at Jodhpur;
(xiv) WP No.5895/2021, titled The Commissioner, KVS and another vs. Smt. Usha Rajagopalan and 13 O.A. Nos.153/2019, 254/2019, 4/2020 & 157/2020 another, decided on 10.3.2021, by the Hon'ble High Court of Judicature at Madras;
(xv) WP (C)/4519/2020, titled KVS and others vs. Biraj Kumar Sarma, decided on 8.2.2022, by the Hon'ble Gauhati High Court;
(xvi) LPA No.410/2014 and other connected cases, titled Smt. Shashi Kiran and others vs. Union of India and others, decided on 24.082016, by the Hon'ble Delhi High Court;
(xvii) WP No.10993 of 2020 and other connected cases, titled Dr. Kishore K. John and others vs. Union of India and others, decided on 23.4.2021, by the Hon'ble High Court of Judicature at Madras; (xviii) WP No.16467/2017, titled Esther Xavier vs. Union of India and others, decided on 23.8.2018, by the Hon'ble High Court of Judicature at Madras; (xix) Appeal (Civil) No.2723/2005, titled Union of India and others vs. S.L. Verma and others, decided on 28.11.2006, by the Hon'ble Supreme Court, also reported in 2006 (12) SCC 53;
14 O.A. Nos.153/2019, 254/2019,
4/2020 & 157/2020 (xx) SLP (Civil) Diary No.(s) 21776/2019, titled The Commissioner, KVS and another vs. SP Tak, decided on 26.7.2019, by the Hon'ble Supreme Court; & (xxi) SLP (C) No.18372/2021 and other connected cases, titled The Commissioner, KVS and another vs. Usha Rajagopalan, decided on 6.12.2021, by the Hon'ble Supreme Court.
In support, Mr. Mathur, learned counsel has argued that the law on the issue involved in the present matter has been settled by the Hon'ble Supreme Court in the case of S.L. Verma (supra) and the said judgment of the Hon'ble Apex Court has not been considered the case of Jaspal Kaur (supra) and, therefore, the judgment of the Hon'ble Apex Court in Jaspal Kaur (supra) is not a binding precedent and the same is binding only between the parties therein. It is further argued that once the law laid down by the Hon'ble Apex Court in S.L. Verma as well as the judgment of the Hon'ble Supreme Court has been considered not only by this Tribunal in various cases but has also by various High Courts in the judgments referred to hereinabove, the judgment of the Hon'ble High Courts 15 O.A. Nos.153/2019, 254/2019, 4/2020 & 157/2020 would be binding precedents and not the judgment of this Tribunal, including in the case of Bela Agarwal (supra). Shri K.K. Sharma, the other learned counsel for the applicant has also adopted and supported the arguments advanced by Mr. Mathur, learned counsel.
12. On the other hand, Shri Hawa Singh, learned counsel for the respondents in OA Nos.4 and 157 of 2020 has supported the view taken, vide common Order/Judgment dated 17.1.2022 passed by the Hon'ble Administrative Member, and in this regard, has placed reliance upon the following judgments:-
(i) Appeal (Civil) No.2876/2007, titled KVS and others vs. Jaspal Kaur and others, decided on 6.6.2017, by the Hon'ble Supreme Court, also reported in 2007 STPL (Service) 82 SC;
(ii) OA No.139/2021, titled T. Krishnamurthy vs. The Assistant Commissioner, KVS and others, decided on 12.10.2012, by the Ernakulam Bench of this Tribunal;
(iii) OA No.942/2010, titled Smt. Shashi Gupta vs. Union of India and another, decided on 16.10.2018, by the Principal Bench of this Tribunal;16 O.A. Nos.153/2019, 254/2019,
4/2020 & 157/2020
(iv) W.P.(C) No.7712/2020 and another connected case, titled KVS vs. Manju Sahgel, decided on 12.3.2021, by the Hon'ble Delhi High Court;
(v) OA No.613/2012, titled Dr. Lalit Kishore vs. KVS, decided on 2.6.2016, by the Jaipur Bench of this Tribunal;
(vi) Judgment of the Hon'ble Supreme Court in Krishna Kumar vs. Union of India and others, reported in (1990) 4 SCC 207.
13. Shri V.D. Sharma, learned counsel also supported the view and Order dated 17.1.2022 passed by the Hon'ble Administrative Member and in this regard, has for the respondents in O.A. Nos.153 and 254 of 2019, has placed reliance upon the judgment of the Hon'ble High Court of Punjab and Haryana at Chandigarh in the case of Mrs. Kamljit Hanjan vs. The Commissioner, KVS and others, reported in 2016 0 Supreme (PH)1320.
14. Learned counsels for the respondents have also placed reliance on the Order/Judgment dated 21.12.2021 of the Jaipur Bench of this Tribunal in OA 5/2019, titled Mrs. Bela Agarwal and others vs. The Commissioner, KVS and another.
17 O.A. Nos.153/2019, 254/2019,
4/2020 & 157/2020
15. I have perused the pleadings on record and have also considered the submissions made by the learned counsels for the parties and have also gone through the judgments referred to hereinabove.
16. The Hon'ble Member (J) in para 14 of the aforesaid common Order/Judgment dated 17.1.2022 has come to a conclusion that the facts of the case are almost identical and that the judgment passed by the Hon'ble High Court of Rajasthan in the case of Gajendra Singh Rathore (supra) now cannot be said to be judgment per incuriam. With regard to the objection of delay/laches, the Hon'ble Member (J) in para 16 of the aforesaid common Order/Judgment dated 17.1.2022 has recorded that the applicant is claiming benefits as per OM dated 01.09.1988, wherein he is incurring loss in pensionary benefits and, thus, there is no question of any delay. On merit, a finding has been given by the Hon'ble Member (J) in para 16 that no reasons have been mentioned by the Respondents in any of their replies as to why the services of the Applicants are not governed by the provisions of the OM dated 01.09.1988 and only ground for rejection by the respondents is that 'only those employees who are 18 O.A. Nos.153/2019, 254/2019, 4/2020 & 157/2020 appointed after 01.01.1986 and before 31.12.2003, are entitled for submitting option for conversion from CPF to GPF and as Applicant has been appointed prior to 1986, he is not entitled for conversion from CPF to GPF scheme. The Hon'ble Member (J) has further observed that it is clear that the Respondents have misinterpreted the Scheme of 01.09.1988 and as the impugned orders in challenge are in clear violation of the OM dated 01.09.1988, the present OA deserves to be allowed and the applicant be allowed by Respondents to switch over from CPF Scheme to GPF Scheme.
17. Though the facts have not been in dispute in the aforesaid dissenting common Order/Judgment, however, the Hon'ble Member (A), disagreed with the Order/Judgment of the Hon'ble Member (J) on the ground that in a case with almost similar facts, recently, a Single Bench of this Tribunal vide Order/Judgment dated 21.12.2021 in Bela Agarwal (supra) has came to the opposite conclusion. In para 20 of the aforesaid dissenting common Order/Judgment dated 17.1.2022, the Hon'ble Member (A) has given a finding that in the case of Bela Agarwal (supra), the Tribunal did not follow the judgment 19 O.A. Nos.153/2019, 254/2019, 4/2020 & 157/2020 of the Hon'ble High Court of Rajasthan in the case of Gajendra Singh Rathore (supra), not only because it considered to be the judgment per incuriam (since there is no mention of earlier Hon'ble Apex Court judgment in Jaspal Kaur (supra) but also because in the case of Gajendra Singh Rathore (supra), not filing of option was mentioned as an admitted fact. With further finding that in Bela Agarwal case (supra), the Single Bench after discussing all the decisions produced before it (for and against allowing such requests) decided against allowing such conversion at a late stage and dismissed the applicants' claim on ground of it being barred by limitation and also on account of lack of merit.
18. There is no dispute about the fact that it was not necessary to opt for GPF-cum-Pension Scheme, if an employee did not opt for continuing in CPF Scheme, he/she got automatically transferred to GPF Scheme.
19. In Bela Agarwal (supra) the Hon'ble Single Member decided against allowing conversion from CPF Scheme to GPF Scheme on the ground of being barred by limitation and also on account of lack of merit. In Bela Agarwal (supra) is based on the judgment of the Hon'ble Supreme 20 O.A. Nos.153/2019, 254/2019, 4/2020 & 157/2020 Court in Jaspal Kaur (supra). In para 20 of the common Order/Judgment dated 17.1.2022, a few judgments of Ernakulam Bench and Principal Bench of this Tribunal, Hon'ble High Court of Delhi and Jaipur Bench of this Tribunal have also been referred to, wherein requests for such conversion from CPF to GPF has been disallowed.
20. From the aforesaid, the issue arises:-
(i) as to whether the judgment of this Tribunal in Bela Agarwal 's case (supra) is required to be followed or the judgments passed by various Hon'ble High Courts wherein besides other judgments of Hon'ble Supreme Court besides in Jaspal Kaur (supra) has been considered ad required to be followed;
(ii) as to whether the applicants are entitled for conversion from CPF to GPF; and/or
(iii) as to whether such claim of the applicants deserves to be dismissed on the ground that the same being barred by limitation, delay and laches.21 O.A. Nos.153/2019, 254/2019,
4/2020 & 157/2020
21. The Division Bench of the Hon'ble High Court in LPA No.410/2014 and in a batch of cases, titled Smt. Shashi Kiran and others vs. Union of India and others, considered an identical issue and allowed the claim of the employees vide common Order/Judgment dated 24.8.2016. In paras 17, 19 and 20 of the said Order/Judgment, the Hon'ble Delhi High Court has ruled as under:-
"17. This court is of opinion that the submissions of the University, the appellant, in regard to the Virmani's order, have no force. There is no denial and there can be none- that the nature of the scheme contemplated by the 01.05.1987 notification was to ensure that only those wishing to continue in the CPF scheme had to opt to do so. A default in that regard, meant that the employee not filling his option (to continue in CPF) was deemed to have "come over" or migrated to the Pension Scheme. The University and the official respondents (UGC, Central Government etc) had urged that the petitioners in the Virmani group are deemed to have accepted the CPF benefits, because they allowed deductions from their monthly salaries during the interregnum and permitting Pension Scheme benefits would not be fair; in the same breath it was urged that there was delay. This court is of opinion that the University - and the respondents are relying on contradictory pleas. If they urge that the true interpretation of the 1987 circular meant that anyone not furnishing an option to continue in the CPF scheme is deemed to have opted for the Pension Scheme (as the Virmani group undoubtedly did) there is no way they can succeed on the ground of laches or estoppel. If plain grammatical 22 O.A. Nos.153/2019, 254/2019, 4/2020 & 157/2020 meaning of the language of the May 1987 OM were to be given, all those who do not opt would automatically be borne in the Pension Scheme. Such being the position, the argument that the petitioners in Virmani allowed deduction of CPF amounts from their salary, cannot be argued against them. CPF schemes typically require employees to commit greater amounts than in GPF scheme, on a monthly basis. That these staff members allowed higher amounts, which were held under a scheme (and which earned interest), the benefit of which had not accrued and was not available to them till the date of superannuation, cannot be urged against them. Likewise, the question of laches would not arise, because at the most, pension would not be allowed for the entire period, given that in matters of pension (see Union of India & Ors. V. Tarsem Singh (2008) 8 SCC 648) there is a continuing cause of action. Therefore, we find no infirmity with the learned Single Judge's order, in Virmani's case."
"19. It is argued by the learned counsel for the University that once the learned Single Judge held that extension of the option was not authorized, there was no question of granting relief. Furthermore, in respect of those who had not opted for CPF, but whose contributions continued in the scheme, the court should not have granted relief, given the passage of time and the voluntary conduct of the teaching staff and officials. It was urged that the learned Single Judge erred in relying on Union of India v. S.L. Verma (2006) 12 SCC 53; in any case, the observations relied on were mere passing remarks, in the nature of obiter and clearly had no binding effect. On the other hand, the learned Single Judge, urged the Appellants' counsel, fell into error in not relying on Kendriya Vidyalaya Sangathan & Ors v Jaspal Kaur & Anr (2007) 6 SCC 13 and Union of India and Ors v M.K. Sarkar (2010) 2 SCC 59.23 O.A. Nos.153/2019, 254/2019,
4/2020 & 157/2020
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 learned Single Judge concluded that notwithstanding the so called option, exercised in terms of the extensions given, the writ petitioners could not be denied the benefit of the Pension Scheme because they were deemed, by the OM of 01.05.1987 to have opted for it, by default. Having regard to these facts, the appellants could not have urged that the benefit of the Pension Scheme should have been denied to these class of petitioners/teaching staff. Therefore, we are of opinion that there is no infirmity with the impugned judgment of the learned Single Judge. The University's appeals, therefore, deserve to fail."
22. An identical issue came before the Hon'ble High Court of Judicature at Madras in R. Renukadevi vs. The Commissioner, KVS and others (supra). In the said case, at the time of joining the services in the KVS, there was no pension scheme for KVS employees, however, after 4th Pay Commission, the Pension Scheme was introduced vide Office Memorandum dated 1.9.1988. As per which employees joining service in the Sangathan on or after 24 O.A. Nos.153/2019, 254/2019, 4/2020 & 157/2020 01.01.1986 shall be governed only by the G.P.F Scheme and will have no option for the C.P.F. Scheme. However, for all C.P.F. beneficiaries, who were in service on 01.01.1986 and who are still in service on the date of issue of these orders will be deemed to have come over to the pension scheme. By virtue of the deeming clause, the petitioner therein was under the impression that she had been brought into the Pension Scheme. When the same was denied to her, the petitioner therein approached the Madras Bench of this Tribunal by filing Original Application No.1166/2013. On behalf of the KVS, it was contended that an option was given to the KVS employees to switch over from C.P.F. Scheme to Pension Scheme in 1988 but the petitioner therein continued to be in the C.P.F. Scheme without demur and she cannot seek for pension under the Pension Scheme as she had not expressed any option after introduction of Pension Scheme in the year 1988. The Tribunal dismissed the said Original Application on the ground that petitioner continued till the date of retirement with the CPF Scheme and her case was distinguishable from the case covered by the judgment relied upon by her. The Hon'ble Madras High Court set 25 O.A. Nos.153/2019, 254/2019, 4/2020 & 157/2020 aside the aforesaid Order of the Madras Bench of this Tribunal and directed the respondents to convert the pensioner under GPF Scheme forthwith, calculate and pay the revised pension including the arrears for which, he became eligible by such conversion and the petitioner therein was also directed to refund the amount received by him towards CPF Scheme with 9% p.a. interest from the date when he received till the date of payment and making it clear that arrears of pension payable to the petitioner therein under GPF Scheme may be adjusted towards refund of the P.F. amounts received by the petitioner with interest and also that in the event of not realizing the entire amount, the remaining portion amount may be refunded by the petitioner. Paras 9 to 11 of the said judgment of the Hon'ble Madras High Court read as under:-
9. Further, the Delhi High Court in "Smt.Shashi Kiran and others versus Union of India and others" etc., reported in 2016 SCC OnLine Del4819" has dealt with the issue in extenso and finally held that even if an option exercised by the employees, they would still be entitled to request for change of option to pension scheme in view of subsequent developments and change in socio and economic scenario.
10. Even going to the extent of holding that she had exercised her option in favour of Central 26 O.A. Nos.153/2019, 254/2019, 4/2020 & 157/2020 Provident Fund Scheme, such exercise of option was not valid and subsisting in view of subsequent social and economic development.
It is also to be seen from the decision of the Delhi High Court that several employees have been allowed to switch over from CPF to pension scheme even after the exercise of option originally in favour of the CPF scheme. Such being the case, singling out a few employees in some departments on an erroneous understanding of the office memorandum dated 01.09.1988, would be per se discriminatory and hence consequentially impermissible.
11. In the above circumstances, the learned Tribunal has not appreciated the claim of the petitioner in proper perspective with reference to the above said office memorandum and decisions cited on behalf of the petitioner. The learned Tribunal was misguided by the fact that the petitioner continued to remain under CPF scheme without due appreciation of the fact that all employees, on introduction of the pension scheme in 1988, deemed to have come under pension scheme. Mearly because the petitioner continued to contribute to the CPF scheme, her right to get pensionary benefits under the pension scheme cannot stand negatived, as the right which falls for consideration before us is the constitutional right to equal treatment, as envisaged under Article 14 of the Constitution of India."
23. An identical issue again came before the Hon'ble High Court of Judicature at Madras in the case of S. Subbiah (supra). In the said case, the employees exercised their option to remain with C.P.F. Scheme, however, subsequently, they submitted representations 27 O.A. Nos.153/2019, 254/2019, 4/2020 & 157/2020 that they should be brought under the Pension Scheme as they did not exercise their option before the cut of date, i.e., 30.9.1997, petitioners (original respondents) before the Tribunal resisted the claim of the employees on the ground that once the employees have chosen their exercise consciously, they cannot re-assail their position subsequently and claim pension under the Pension Scheme. The Madras Bench of this Tribunal placed reliance on the decision of the Hon'ble Supreme Court in S.L. Verma (supra) as extracted in para 9 of its order as well as the decision of the Hon'ble High Court of Delhi in Dr. R.N. Virmani and others vs. University of Delhi and another (supra) and allowed the Applications filed by the employees and the Hon'ble Madras High Court dismissed the said Writ Petitions vide common Order/Judgment dated 5.1.2017, paras 14 thereof reads as under:-
"14. This Court, after hearing the arguments on either side, gave its anxious consideration with reference to the pleadings and the decisions of the Hon'ble Supreme Court and the decision of the Delhi High Court. The natural conclusion emanated from our anxious consideration will only lead to hold that the respondent employees despite their option to remain in CPF Scheme which was given during the extended period of time, are entitled to seek pension under the 28 O.A. Nos.153/2019, 254/2019, 4/2020 & 157/2020 Pension Scheme. Firstly, the said option given during the time of extended period has no sanctity in law. Secondly, such option given by the employees cannot be held against them in view of the fact that several similarly placed employees of the Central Government were allowed to switch over to the CPF Scheme, meaning that no seriousness attached to the cut of date prescribed originally by the Official Memorandum dated 1.5.1987. If these employees were denied pension in the facts and circumstances, it would certainly amount to discrimination, which per se constitutionally impermissible. Moreover, the decision of the Delhi High Court cited supra and the contentions which were extracted above, would unequivocally supported the claim of the respondent employees notwithstanding the fact that whether they exercised their option or not."
24. Again an identical issue came before the Hon'ble High Court of Madras in the case of N. Subramanian (supra), and the Hon'ble High Court considered the judgment of the Hon'ble Supreme Court in the case of Jaspal Kaur (supra) and set aside the Order of Madras Bench of this Tribunal dated 2.6.2015 in OA 736/2013, vide Order/Judgment dated 24.2.2017, and granted the prayer of the petitioner for conversion from CPF Scheme to GPF Scheme, para 11 thereof reads as under:-
"11. As regards the legal position, the issue has been covered by the decisions of the Hon'ble Supreme Court and the High Court of Delhi. In fact, the same Tribunal in similar applications, 29 O.A. Nos.153/2019, 254/2019, 4/2020 & 157/2020 had allowed the claims of the employees therein, declaring that they were deemed to be pensioners under pension scheme. In fact, this Court has dismissed the batch of writ petitions in WP 28092 to 28094 of 2015 etc., filed by the Union of India, wherein, the Tribunal allowed the similar claims. In fact, in those cases, option had been exercised by the employees in favour of CPF scheme, but in spite of the same, applications were filed and allowed by the Tribunal and the writ petitions filed against those orders by the Union of India, came to be dismissed this Court vide order dated 05.01.2007, with the following observation in para 13 and 14:
"13. From the above, it could be seen that even the employees who have originally opted to remain in CPF Scheme and switched over to Pension Scheme because the same was being more beneficial to them, the Court has held that non-grant of better benefits by way of pension and denying the same to one set of employees per se discriminatory notwithstanding the option exercised by the employees to remain in CPF scheme which was given during the extended period of time, are entitled to seek pension under the Pension Scheme. The Delhi High Court has adverted to several decisions of the Hon'ble Supreme Court and other High Courts and passed a detailed judgment in a batch of appeals.
The issues raised before the Delhi High Court were identical and the Court has answered the issues in favour of the employees.
14. This Court, after hearing the arguments on either side, gave its anxious consideration with reference to the pleadings and the decisions of the Hon'ble Supreme Court and the decision of the Delhi High Court. The natural conclusion 30 O.A. Nos.153/2019, 254/2019, 4/2020 & 157/2020 emanated from our anxious consideration will only lead to hold that the respondent employees despite their option to remain in CPF Scheme which was given during the extended period of time, are entitled to seek pension under the Pension Scheme. Firstly, the said option given during the time of extended period has no sanctity in law. Secondly, such option given by the employees cannot be held against them in view of the fact that several similarly placed employees of the Central Government were allowed to switch over to the CPF Scheme, meaning that no seriousness attached to the cut of date prescribed originally by the Official Memorandum dated 1.5.1987. If these employees were denied pension in the facts and circumstances, it would certainly amount to discrimination, which per se constitutionally impermissible. Moreover, the decision of the Delhi High Court cited supra and the contentions which were extracted above, would unequivocally supported the claim of the respondent employees notwithstanding the fact that whether they exercised their option or not."
25. The Hon'ble High Court of Judicature for Rajasthan at Jodhpur had also considered an identical issue in M.S. Panwar (supra). In the said cases, though before the Hon'ble High Court judgment of the Hon'ble Supreme Court in the case of Jaspal Kaur (supra) was not brought to the notice, however, the identical facts were there and after considering the judgments of the Hon'ble Supreme 31 O.A. Nos.153/2019, 254/2019, 4/2020 & 157/2020 Court in the cases of Rajasthan Rajya Vidhyut Vitran Nigam Ltd. Vs. Dwakar Prasad Koolwal and others, reported in AIR 2014 SC 365, and S.L. Verms (supra), the Hon'ble High Court allowed the prayer of the petitioners for conversion from CPF Scheme to GPF Scheme vide Order/Judgment dated 4.1.2018 and the said judgment has attained finality after dismissal of the SLP by the Hon'ble Supreme Court vide judgment dated 26.7.2019.
26. Similar has been the position before the Hon'ble High Court of Judicature for Rajasthan at Jodhpur in the case of Gajendra Singh Rathore (supra) in which the Hon'ble High Court after considering the relevant facts and judgments in the case of M.S. Panwar (supra) and S.P. Tak vs. The Central Administrative & ors. in DBCWP No.10662/2016, which have attained finality upon dismissal of SLPs vide order dated 265.07.2019, allowed conversion of the petitioner from C.P.F to G.P.F. vide Order/Judgment dated 22.10.2021.
27. I may also refer the Order/Judgement dated 17.1.2019 of the Hon'ble High Court of Judicature at Bombay in Writ Petition No.1331/2007, titled Amita Ajit Desai and others vs The Director (I and Q/C) & Anr.. In 32 O.A. Nos.153/2019, 254/2019, 4/2020 & 157/2020 the said case, the Hon'ble High Court was concerned with the petitioners, who had retired in the years 2006, 2009, 2011 and 2015 and relief was granted by the Hon'ble High Court, governing the petitioners therein under Central Civil Services (Pension) Scheme, 1972, paras 11, 12 and 13 thereof read as under:-
"11 The controversy is no longer res integra. In the case of Union of India & Anr. Vs. S.L. Verma & Ors., the Hon'ble Supreme Court had an occasion to consider the very same Office Memorandum. It will be helpful to refer to paragraph 7 of the said judgment of the Apex Court which reads as under :-
"7 The Central Government, in our opinion, proceeded on a basic mis- conception. By reason of the said Office Memorandum dated 1.5.1987 a legal fiction was created. Only when an employee consciously opted for to continue with the CPF Scheme, he would not become a member of the Pension Scheme. It is not disputed that the said respondents did not give their options by 30.9.1987. In that view of the matter respondent Nos. 1 to 13 in view of the legal fiction created, became members of the Pension Scheme. Once they became the member of the Pension Scheme, Regulation 16 of the Bureau of Indian Standards(Terms and Condition of Service of 2 (2008) 8 Supreme Court Cases 648 Shraddha Talekar PS 5/8 6
931.wp.1337.2017.doc Employees Regulation, 1988) had become ipso-facto applicable in their case also. It may be that they had made an option to continue with the CPF Scheme at a later 33 O.A. Nos.153/2019, 254/2019, 4/2020 & 157/2020 stage but if by reason of the legal fiction created, they became members of the Pension Scheme, the question of their reverting to the CPF would not arise. The respondent No.14 has correctly arrived at a conclusion that an anomaly would be created and in fact the said purported option on the part of respondent No.1 to 13 was illegal when a request was made by respondent No.14 to the Union of India for grant of approval so that all those employees shall come within the purview of the Pension Scheme. In our opinion, the Ministry of Finance proceeded on a wrong premise that the Pension Scheme was not in existence and it was a new one. Two legal fictions, as noticed hereinbefore, were created, one by reason of the memorandum, and another by reason of the acceptance of the recommendations of the Fourth Central Pay Commission with effect from 1.1.1986. In terms of such legal fictions, it will bear repetition to state, the respondent nos.1 to 13 would be deemed to have switched over to the pension scheme, which a fortiori would mean that they no longer remained in the CPF scheme."
12 On perusal of the aforesaid observations of the Hon'ble Apex Court, it is clearly revealed that by reason of the said Office Memorandum dated 1st May 1987, a legal fiction was created. It has been held that only when an employee consciously opted to continue with the CPF Scheme, he would not become a member of the Pension Scheme. It has been held that if no option is exercised by an employee, prior to the date specified in the Office Memorandum dated 1st May 1987, the employee shall be deemed to have automatically come over to the Pension Scheme.
34 O.A. Nos.153/2019, 254/2019,
4/2020 & 157/2020 13 We find that the aforesaid directions of the Hon'ble Apex Court would clearly cover the case of the petitioners. Undisputedly, none of the petitioner has opted for the CPF Scheme under the Office Memorandum Shraddha Talekar PS 6/8 7 931.wp.1337.2017.doc dated 1st May 1987. In that view of the matter, we find that in view of the Office Memorandum dated 1st May 1987, the petitioners would be deemed to be covered by the Pension Scheme."
28. From the aforesaid, it is evident that in spite of their being the judgment of the Hon'ble Apex Court in the case of Jaspal Kaur (supra), various Hon'ble High Courts have followed the judgment of the Hon'ble Supreme Court in the case of S.L. Verma (supra). In the identical facts and circumstances after considering various judgments of the Hon'ble Supreme Court, the Hon'ble High Courts have not found the claim of the similarly placed person(s) barred by limitation, delay and laches. Even in Jaspal Kaur (supra), the judgment of the Hon'ble Supreme Court in S.L. Verma (supra) has not been considered, whereas by the Hon'ble High Courts, various judgments of the Hon'ble Supreme Court on limitation as well as the judgments of the Hon'ble Supreme Court in S.L. Verma (supra) and in Jaspal Kaur (supra) have been considered. 35 O.A. Nos.153/2019, 254/2019,
4/2020 & 157/2020
29. I have also gone through the judgments referred to and relied upon by the learned counsel for the respondents. I have already noted herein above that the judgment of the Hon'ble Supreme Court in Jaspal Kaur (supra) has been considered by the Hon'ble High Court of Delhi and Hon'ble High Court of Judicature at Madras. So far as judgment of the Hon'ble High Court of Delhi in Manju Sahgel (supra) is concerned, in the said case, though the judgment of the Hon'ble Supreme Court in the case of Jaspal Kaur (supra) has been considered, however, neither the judgment of the Hon'ble Supreme Court in the case of S.L. Verma (supra) has been considered nor the judgment of the Hon'ble High Court of Delhi in Dr. R.N. Virmani (supra) has been considered. I have also gone through the judgment of the Hon'ble Supreme Court in Krishna Kumar (supra). However, I find that the facts and issue in the said case before the Hon'ble Supreme Court were entirely different. I have also gone through the judgment of the Hon'ble High Court of Punjab and Haryana in the case of Mrs. Kamljit Hanjan (supra). Though similar claim of the similarly placed persons had been dismissed by the Hon'ble High Court, 36 O.A. Nos.153/2019, 254/2019, 4/2020 & 157/2020 however, in the said case, none of the judgment of the Hon'ble Supreme Court and of the Hon'ble High Courts, referred to above, have been considered.
30. From the aforesaid, it is evident that there are two sets of judgments. In one set of judgments, the Hon'ble High Courts after considering the relevant OMs of 1987 & 1988 and the judgments of the Hon'ble Supreme Court in S.L. Verma (supra), Jaspal Kaur (supra) and also various judgments on the point of limitation, delay and laches, have allowed the claim of similarly placed persons whereas there is another set of judgments in which Single Bench of this Tribunal and/or Division Bench of this Tribunal has dismissed claim of the similarly placed persons.
31. I am of the considered view that once issue has been considered and the same has been allowed by the Hon'ble High Courts after considering the various judgments of Hon'ble Supreme Court, including in the case of Jaspal Kaur (supra) and objection of limitation and law thereon, the judgments of the Hon'ble High Courts would be binding and not the judgment(s) of the Single Bench and/or the Division Bench of this Tribunal on the same issue. Accordingly, I am of the considered opinion that the 37 O.A. Nos.153/2019, 254/2019, 4/2020 & 157/2020 applicants are entitled for conversion from C.P.F. to G.P.F. and the applicants' claim is not barred by limitation, delay and laches.
32. In view of the aforesaid, I am in respectful agreement with the aforesaid common Order/Judgment dated 17.1.2022 passed by the Hon'ble Member (J) and respectfully, I am not in agreement with the aforesaid common Order/Judgment dated 17.1.2022 passed by the Hon'ble Member (A) in the aforesaid OAs. Order accordingly.
(R.N. Singh) Member (J) /ravi/