Central Administrative Tribunal - Bangalore
Anu Thomas vs M/O Human Resource Development on 25 January, 2023
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OA.No.170/00989/2019/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00989/2019
ORDER RESERVED ON 12.12.2022
DATE OF ORDER: 25.01.2023
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
Smt Anu Thomas
Principal (Retired),
No. 939, 3rd Cross,
H.R.B.R. 1st Block,
Kalyan Nagar,
Bangalore 560 043 .... Applicant
(By Advocate Shri Aniyan Joseph)
Vs.
1. Union of India,
Represented by the Secretary to the Government,
Ministry of Human Resource Development
Government of India,
Shastri Bhavan,
New Delhi - 110 001.
2. The Commissioner
Kendriya Vidyalaya Sangathan,
No. 18, Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi 110 016
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OA.No.170/00989/2019/CAT/BANGALORE
3. Pay & Accounts Officer
Civil Lines,
New Delhi 110 054
4. Department of Expenditure
Government of India,
New Delhi 110 001 ...Respondents
(By Shri Vishnu Bhat, Senior Panel Counsel)
ORDER
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicant assailing the communication/letter dated 02.05.2019 issued by the 2nd respondent (Annexure A16) inter alia seeking a declaration that the applicant is entitled to be extended with the benefits of GPF cum pension scheme with all consequential benefits.
2. The facts in brief as stated by the applicant are that the applicant was initially appointed as a Primary Teacher on 15.11.1978 and subsequently, she was appointed as Trained Graduate Teacher on 08.09.1982 and Post Graduate Teacher on 27.09.1983 in Kendriya Vidyalaya Sangathan (KVS). In a selection conducted by the KVS for the post of Principal, the applicant along with open candidates appeared in a written test and 3 OA.No.170/00989/2019/CAT/BANGALORE thereafter was called for personal interview. Being successful in the written examination and personal interview, she was appointed to the post of Principal on direct recruitment by order dated 19.05.2000. On the basis of the order dated 19.09.2007, the applicant's service as Principal was regularized with effect from the date she was appointed on deputation basis with all consequential benefits. On attaining superannuation, she retired from service on 31.12.2014.
3. Based on the order of the Government of India issued pursuant to the recommendations of the 4th Pay Commission, all new recruits appointed between 01.01.1986 and 31.12.2003 in KVS were to be placed under GPF cum pension scheme. It is the contention of the applicant that in terms of the OM dated 01.05.1987, all CPF beneficiaries, who were in service on 01.01.1986 and who are still in service on the date of issue of the said order, will be deemed to have come over to the Pension Scheme; the employees of such category, however, have an option to continue under the CPF scheme, if they so desire. The option ought to have been exercised and conveyed to the concerned Head of Office by 30.09.1987 in the form enclosed, if the employees 4 OA.No.170/00989/2019/CAT/BANGALORE wish to continue under the CPF scheme. If no option is received by the Head of Office by the said due date, the employees will be deemed to have come over to the Pension Scheme. The CPF beneficiaries who were in service on 01.01.1986 but have since retired and in whose case retirement benefits have also been paid under the CPF scheme, will have an option to have their retirement benefits calculated under the Pension Scheme provided they refund to the Government, the Government contribution to the Contributory Provident Fund and the interest thereto drawn by them at the time of settlement of the CPF account. Accordingly, OM dated 01.09.1988 was issued by the KVS. However, the applicant on her appointment as Principal on 19.05.2000 was not changed to GPF scheme and continued to be in CPF scheme. After retirement from service, the applicant came to know about the fact that the Ministry had issued a letter to the Commissioner, KVS stating that KVS had not appropriately given effect to the provisions of KVS OM dated 01.09.1988 relating to the change over of employees from CPF to GPF cum pension scheme and directed the Commissioner to re-consider and take necessary corrective action having regard to the relevant facts of individual cases. On re-consideration, similarly placed employees like the 5 OA.No.170/00989/2019/CAT/BANGALORE applicant were allowed to change over from CPF to GPF cum pension scheme and certain other employees who were similarly placed were allowed to change from CPF to GPF cum pension scheme on the basis of judicial orders.
4. It is the grievance of the applicant that the representation submitted by her to the 2nd respondent for change over from CPF to GPF cum pension scheme from the date of her appointment as Principal on direct recruitment has not been agreed to, on the premise that the option once exercised is final. Being aggrieved, the applicant has preferred this Original Application. In the first round, OA was disposed of vide order dated 12.02.2020 allowing the applicant to switch over to GPF subject to certain conditions and the same reads thus:
"1. Applicant will be allowed to cross over to GPF if she makes a clear cut application along with an undertaking to bear the brunt of administrative efforts newly needed on her behalf.
2. After discussing with the learned counsels, we have decided that we will follow the decision of the Hon'ble High Court of Karnataka in the matter of rate of interest for the 6 OA.No.170/00989/2019/CAT/BANGALORE money she has received into her account in EPF from the Government. She will have to pay an interest calculated from time to time at the rate of 15% as fixed by Hon'ble High Court of Karnataka.
3. Let the applicant pay the administrative charges at Rs.50,000/- to the Government. She will be allowed to do so within the next one month, that is give a fresh option, give an undertaking and also pay Rs. 50,000/- to the Government's exchequer, which ever heads of accounts they decide."
5. Writ Petition No. 10569/2020 and connected matters were filed by KVS against this order. The Hon'ble High Court vide common order dated 01.02.2021 in W.P. No. 10998/2020 along with connected matters including W.P. No. 10569/2020, setting aside the orders passed in OA's, remanded the matter to this Tribunal. Accordingly, this OA is taken for hearing afresh.
6. Learned counsel Shri Aniyan Joseph representing the applicant submitted that the applicant was appointed on 19.05.2000 as Principal on direct recruitment along with the open candidates after succeeding in written examination and personal interview. As per the OM dated 01.05.1987 issued on the recommendations of 7 OA.No.170/00989/2019/CAT/BANGALORE the 4th Pay Commission, all new recruits appointed between 01.01.1986 and 31.12.2003 in KVS were placed under GPF cum pension scheme and who were already employed in the KVS were to be shifted to GPF cum pension scheme unless they opted to remain under CPF scheme. Therefore, the pension scheme applicable to the applicant was GPF cum pension scheme and not CPF. On a wrong assumption, the 2nd respondent has issued a letter dated 02.05.2019 (Annexure A16) that the applicant had already exercised the option to change over from CPF to GPF cum pension scheme. No such option was given by the applicant to continue under CPF as the scheme was not applicable to new recruits appointed after 01.01.1986. Moreover, the cut off date for exercising the option to remain under the CPF scheme was 01.09.1988, hence the applicant ought to have been placed under GPF scheme as the said scheme alone was applicable to all persons appointed between 01.01.1986 and 31.12.2003. In support of his contentions, learned counsel has placed reliance on the following decisions:
1) Union of India & Another vs S.L. Verma & Others in Civil Appeal No. 2723/2005 (DD 28.11.2006) - Hon'ble Supreme Court 8 OA.No.170/00989/2019/CAT/BANGALORE
2) Johnson P John vs The Assistant Commissioner, KVS & Others in OA No. 457/2011 (DD 22.03.2012) - Central Administrative Tribunal, Ernakulam Bench
3) O.P. (CAT) No. 597 of 2013 (DD 13.08.2013) - Hon'ble High Court of Kerala.
4) A.P. Verma vs NCERT in W.P. (C) No. 8489/2011 (DD 25.02.2013) - Hon'ble High Court of Delhi.
5) Shashi Kiran and Others vs Union of India and Others in LPA No. 410/2014 and connected matters (DD 24.08.2016) - Hon'ble High Court of Delhi.
6) Renukadevi vs The Commissioner, KVS in W.P. No. 25354/2015 (DD 05.01.2017) - Hon'ble High Court of Madras.
7) Chandra Kumar Ojha vs Union of India and Others in OA No. 100/3084/2015 (DD 06.01.2017) - Central Administrative Tribunal, Principal Bench.
8) N. Subramanian vs The Commissioner in W.P. No. 19215/2015 (DD 24.02.2017) - Hon'ble High Court of Madras 9 OA.No.170/00989/2019/CAT/BANGALORE
9) M.S. Panwar vs Central Administrative Tribunal, Jodhpur Bench in C.W.P. No. 5976/2017 (DD 04.01.2018) - Hon'ble High Court of Rajasthan
10) Prema Nalinam Christian vs Union of India and Others in W.P. No. 24860/2018 (DD 26.11.2018) - Hon'ble High Court of Madras.
11) Amita Ajit Desai & Ors vs Union of India & Ors in W.P. No. 1331/2017 (DD 17.01.2019) - Hon'ble High Court of Bombay
12) KVS & Others vs Biraj Kumar Sarma in WP (C) No. 4519/2020 (DD 08.02.2022) - Hon'ble High Court of Gauhati
13) The Commissioner vs V. Saraswathi & Others in W.P. No. 239/2021 (DD 08.01.2021)-Hon'ble High Court of Madras
14) Gurmail Kaur vs The Commissioner, KVS in OA No. 153/2019 (DD 26.04.2022)-Central Administrative Tribunal, Jaipur Bench
15) Ashwani Trikha vs KVS in OA No. 611/2019 (DD 27.09.2022) - Central Administrative Tribunal, Jaipur Bench. 10
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7. Respondents have filed a detailed reply statement. Learned counsel Shri Vishnu Bhat representing the respondents reiterating the defence taken in the reply statement submitted that the applicant being an appointee in KVS prior to 01.01.1986 made a decision to continue in CPF scheme, hence there is no illegality on the part of KVS to continue her under CPF scheme. The OM dated 01.05.1987 is applicable only to civilian central government employees who are subscribing to the CPF under Contributory Provident Fund Rules (India) 1962. KVS is an autonomous body and in its meeting held on 31.05.1988 it was decided that KVS will implement mutatis mutandis the decision taken by the Government of India on the recommendations of the 4th Pay Commission for the KVS employees for change over from CPF to GPF cum pension scheme in the manner indicated in the OM dated 01.05.1987. Accordingly, in the KVS OM dated 01.09.1988, it was decided that persons joining services on or after 01.01.1986 shall be governed by GPF cum pension scheme and will have no option for CPF scheme. The employees who would like to continue in CPF scheme were, however, required to exercise a clear option to continue in CPF. If no option was received by 28.02.1989, the 11 OA.No.170/00989/2019/CAT/BANGALORE employee was deemed to have switched over to GPF cum pension scheme. It was made clear that option exercised shall be final. As such, the applicant cannot claim that her appointment as Principal has begun afresh and as a new entrant she would be entitled for GPF cum pension scheme. In support of his contentions, learned counsel has placed reliance on the following judgments:
1) Order dated 06.06.2007 passed by the Hon'ble Supreme Court of India in Appeal (Civil) No. 2876/2007 - KVS and Ors vs Jaspal Kaur and Ors.
2) Common judgment dated 12.03.2021 passed by the Hon'ble High Court of Delhi in W.P. No. 7712/2020 (KVS Vs. Manju Sahgel) and WP No. 9851/2020 (KVS Vs. Ramesh Chandra Agarwal).
3) Order dated 24.02.2021 passed by Central Administrative Tribunal, Jabalpur Bench in OA No. 338/2020 - Ajai Kumar vs Union of India and Ors.
Learned counsel further submitted that the OA deserves to be rejected on the ground of delay and laches. The applicant has availed the CPF benefits and after her retirement has approached 12 OA.No.170/00989/2019/CAT/BANGALORE the Respondent No. 2 belatedly for switching over from CPF to GPF pension scheme, therefore, the applicant is not entitled to claim any equality qua those applicants who had approached the Tribunal/Hon'ble Courts within a reasonable time.
8. We have carefully considered the submissions of the learned counsel for the parties and perused the material on record.
9. The relevant paragraph of the reply statement filed by Respondent No. 2 reads thus:
"2. ........... It is submitted that the applicant initially joined as Primary Teacher (PRT) in KVS on 15.11.1978 i.e. prior to 01.01.1986 and subsequently appointed as Trained Graduate Teacher (TGT) and Post Graduate Teacher (PGT) on 08.09.1982 and 27.09.1983 respectively. Finally, she was appointed on direct recruitment basis as Principal on 19.05.2000. Based on a GoI order as per the recommendations of IV CPC all new recruits appointed between 01.01.1986 and 31.12.2003 in Kendriya Vidyalaya were to be placed under G.P.F. cum Pension Scheme and who were already employed in the KVS were to be shifted to G.P.F. cum pension scheme unless they opted to remain under CPF scheme. The applicant being an appointee in KVS prior to 01.01.1986 on her volition made a conscious decision knowing well that the option once 13 OA.No.170/00989/2019/CAT/BANGALORE exercised is final to continue in CPF scheme. Hence there is no illegality on the part of KVS to continue her under CPF scheme. In fact, there is no break in the service of the applicant on her appointment as Principal and her future service has segued with the past service."
10. The relevant paragraphs of OM dated 01.05.1987 and OM dated 01.09.1988 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."14
OA.No.170/00989/2019/CAT/BANGALORE 1st September, 1988 OFFICE MEMORANDUM xxxxxx xxxxxx "3. All CPF beneficiaries, who were in service on 01.01.1986 and who are still in service on the date of issue of these orders shall be deemed to have come over to the GPF cum Pension Scheme.
''3.2 The employees of the category mentioned above will, however, have an option to continue under the scheme, if they so desire. The option will have to be exercised and conveyed to the concerned Head of the Office/Principal by 31.01.1989, in duplicate, in the form enclosed (one form may be sent to this office while the other kept with personal records of the employee concerned) if the employees wish to continue under the CPF scheme and if no option is received by the Head of Office/Principal by the above date and in this office through them by 28.02.1989, the employees will be deemed to have come over to the Pension Scheme. The Head of Office/Principals are to forward in one lot options exercised by the employees for retention of CPF Scheme received by them, to reach Sangathan's office latest by 28.02.1989. Where no option to continue under the CPF Scheme is received by them from any, a nil report be sent by due date viz., 28.02.1989.''
11. Before analysing the factual aspects of the matter, it is appropriate to refer to the judgments relied upon by the learned 15 OA.No.170/00989/2019/CAT/BANGALORE counsel for the parties in order to collate the legal principles enunciated by the Hon'ble Courts.
12. In S.L. Verma, supra, 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 16 OA.No.170/00989/2019/CAT/BANGALORE 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 scheme, which a fortiori would mean that they no longer remained in the CPF scheme."
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13. In Johnson P John, supra, the Central Administrative Tribunal (Ernakulam Bench) has held as under:
"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."
14. The Hon'ble High Court of Kerala in O.P (CAT) No. 597/2013, supra, 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 18 OA.No.170/00989/2019/CAT/BANGALORE scheme and will have no option for CPF scheme. Having found that the respondent therein had joined as Post Graduate 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.
15. In A.P. Verma, supra, 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 19 OA.No.170/00989/2019/CAT/BANGALORE 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 amongst equals and is violative of Article 14 of the Constitution of India."
16. In L.P. Appeal No. 410/2014 in the case of Shashi Kiran and Others, supra, 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 20 OA.No.170/00989/2019/CAT/BANGALORE 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 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 21 OA.No.170/00989/2019/CAT/BANGALORE 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 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 22 OA.No.170/00989/2019/CAT/BANGALORE 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 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 23 OA.No.170/00989/2019/CAT/BANGALORE of action. Therefore, held that no infirmity was found with the learned Single Judge's order, in Virmani's case.
17. 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 vide order dated 10.05.2022 in Civil Appeal No. 003797-003809/2022 has observed that:
"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 24 OA.No.170/00989/2019/CAT/BANGALORE behalf from its Vice Chancellor. Therefore, much would depend, in my opinion, upon the language of the relevant clause of O.M. dated 01.05.1987. The said O.M. clearly applies to all employees who were CPF beneficiaries on 01.01.1986. Clause 3.1 read with clause 3.2 is plainly indicative of the fact that all such employees, who are CPF beneficiaries, shall be deemed, to have, come over to Pension Scheme unless the employee(s) concerned submitted his or her option to continue with the CPF Scheme. This option had to be submitted in the prescribed form to the concerned Head of Office by 30.09.1987. In case, no option was received by the Head of Office by 30.09.1987, employees were deemed to have come over to the Pension 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.25
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7. The Central Government, in our opinion, proceeded on a basic misconception. By reason of the said Office Memorandum dated 1.5.1987 a legal fiction was created. Only when an employee consciously opted for to continue with the CPF Scheme, he would not become a member of the Pension Scheme. It is not disputed that the said respondents did not give their options by 30.9.1987. In that view of the matter respondent Nos. 1 to 13 in view of the legal fiction created, became members of the Pension Scheme. Once they became the member of the Pension Scheme, Regulation 16 of the Bureau of Indian Standards (Terms and Conditions of Service of Employees Regulations, 1988) had become ipso-facto applicable in their case also. It may be that they had made an option to continue with the CPF Scheme at a later stage but if by reason of the legal fiction created, they became members of the Pension Scheme, the question of their reverting to the CPF would not arise. The respondent No.14 has correctly arrived at a conclusion that an anomaly would be created and in fact the said purported option on the part of respondent No.1 to 13 was illegal when a request was made by respondent No.14 to the Union of India for grant of approval so that all those employees shall come within the purview of the Pension Scheme.
In our opinion, the Ministry of Finance proceeded on a wrong premise that the Pension Scheme was not in existence and it was a new one. Two legal fictions, as noticed hereinbefore, were created, one by reason of the memorandum, and another by reason of the acceptance of the recommendations of the Fourth Central Pay Commission with effect from 1.1.1986. In terms of such legal fictions, it will bear repetition to state, the respondent nos.1 to 13 would be deemed to have switched over to the pension WP(C) 1490-1507/2006 & 26 OA.No.170/00989/2019/CAT/BANGALORE 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)
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:27
OA.No.170/00989/2019/CAT/BANGALORE "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."
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 28 OA.No.170/00989/2019/CAT/BANGALORE 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 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 29 OA.No.170/00989/2019/CAT/BANGALORE 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."
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 30 OA.No.170/00989/2019/CAT/BANGALORE 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 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 31 OA.No.170/00989/2019/CAT/BANGALORE 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:
"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 32 OA.No.170/00989/2019/CAT/BANGALORE 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 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.
33
OA.No.170/00989/2019/CAT/BANGALORE 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 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 34 OA.No.170/00989/2019/CAT/BANGALORE 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.
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 35 OA.No.170/00989/2019/CAT/BANGALORE 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 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 36 OA.No.170/00989/2019/CAT/BANGALORE 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."
18. In Renukadevi, supra, 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. 37
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19. Central Administrative Tribunal, Principal Bench in OA No. 3084/2015 in the case of Chandra Kumar Ojha, supra, while considering the 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, referring to the judgment of the Hon'ble Apex Court in Jaspal Kaur, supra, 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 Krishan Murari Gupta. 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.
20. In N. Subramanian, supra, the Hon'ble High Court of Judicature at Madras, after considering the dictum of Jaspal Kaur, supra has observed as under:
38
OA.No.170/00989/2019/CAT/BANGALORE "10. As regards the contention of Shri M.Vaidyanathan, learned counsel appearing for KVS, that the petitioner did not pursue the matter till date of his retirement and therefore, he is estopped from switching over from one Scheme to the other.
Even in the absence of any proof in support of the option in favour of CPF Scheme, but the very conduct of the petitioner should be construed against him and he cannot be allowed to convert his option to GPF Scheme. In support of his contention, he cited a decision of the Hon'ble Supreme Court reported in 2007 STPL (Service) 82 SC "(KVS versus Jaspal Kaur and others)". However, in that case, it was factually demonstrated that the employee therein had opted to the CPF Scheme and therefore, the judgment of the Hon'ble Supreme Court was rendered in that context. As regard the case on hand is concerned, it is not unequivocally demonstrated by the Management of KVS that indeed an option was exercised by the petitioner in favour of CPF Scheme. On the other hand, several representations were addressed by the petitioner to the Government authority, seeking for conversion from CPF Scheme to GPF Scheme, though the petitioner was not legally required to make such representations because of deeming clause.
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, had allowed the claims of the employees therein, declaring that they were deemed to be pensioners under pension 39 OA.No.170/00989/2019/CAT/BANGALORE 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 ........"
Accordingly, it has been held that the law is well-settled that in the absence of specific option exercised by the employee towards CPF scheme, the employee was deemed to have come over to GPF scheme.
21. In M.S. Panwar, supra, 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 post retirement were tendered and under compulsion they took the amount lying to their credit in the CPF account, a direction was issued that employees contribution with accrued interest thereon 40 OA.No.170/00989/2019/CAT/BANGALORE 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.
The above decision was challenged before the Hon'ble Apex Court. However, the petition was dismissed and review filed was also dismissed.
22. Hon'ble High Court of Madras in Prema Nalinam Christian, supra, observed thus:
"5. The impugned order passed by respondents 1 and 2 was not on the ground of delay. In other words, the said order has been passed on merits. The Tribunal has also not rejected the application on the ground of delay. In other words, the Tribunal rejected the application on merits though by considering the issue of acquiescence. After all the principle governing the delay, laches and acquiescence is not one of law but of practice and prudence taking into consideration the facts and circumstances of each case. We are not dealing with the case of promotion or seniority which would have a spiralling effect on others."41
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23. In Amita Ajit Desai & Others, supra, 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.
24. In Gurmail Kaur, supra, owing to the disagreement 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.
25. Following the said decision, in Ashwini Trikha, supra, 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.
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26. In Jaspal Kaur and Others case, supra, the Original Application was allowed by CAT on the ground that no direct evidence was produced to show that Jaspal Kaur had opted for the scheme. It was held that Jaspal Kaur and others were entitled to the benefit of GPF-cum-Pension Scheme on account of her being in service in KVS. Writ Petition filed against the order was dismissed against which KVS had approached the Hon'ble Apex Court. In that context, the Hon'ble Apex Court observed that the secondary pieces of evidence goes to show that Jaspal Kaur and others were aware of the change in account number. Copy of Income Tax return having deductions from pay and allowance for depositing in the CPF, the last pay certificate issued to Jaspal Kaur when she handed over charge clearly indicated that CPF subscriptions of Rs. 130 was being deducted and that she had opted for the pay of CPF scheme and rate of subscription is Rs. 130 for month and allotment of CPF account number 1889 was being transferred. Based on such documents, the Hon'ble Apex Court held that these documents would establish that Jaspal Kaur had exercised the option for CPF scheme. Merely because the original documents relating to 43 OA.No.170/00989/2019/CAT/BANGALORE exercise to option was not produced, that should not be a ground to ignore ample materials produced to show exercise of the option.
27. In Manju Sahgel, supra, the Hon'ble High Court of Delhi while considering the Writ Petition filed by KVS against the orders of CAT, Principal Bench, New Delhi in OA No. 2742/2018 (DD 26.09.2019) rejected the claim of the respondents therein, that upon their selection as PGT, Principal, their services begun as new entrant, and, therefore, they would be entitled to be part of the GPF-cum-Pension Scheme was not accepted as the respondents joined the employment of the KVS as Teachers well before the cut-off date and the said employment continued without any break of service. It is further observed that if the said contention of the respondents is to be accepted, then the respondents would not have fulfilled the minimum length of service required for receiving pension. Therefore, the said contention of the respondents is self- destructive. Placing reliance on the judgment of the Hon'ble Apex Court in Jaspal Kaur case, supra, and the judgment of the Division Bench of the Hon'ble High Court of Delhi in Delhi Transport Corporation vs Madhu Bhushan Anand allowed the Writ Petition setting aside the orders passed by the CAT. 44
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28. CAT, Jabalpur Bench in OA No. 338/2020 (DD 24.02.2021) while dealing with the issue of recovery from the pension of the applicant therein, placing reliance on the judgment of the Hon'ble Apex Court in High Court of Punjab and Haryana vs Jagdev Singh (2016) 14 SCC 267 held that the judgment of the Hon'ble Apex court in the case of State of Punjab and others vs Rafiq Masih (White Washer) and others (2015) 4 SCC 334 is not applicable. The said judgment is not applicable to the facts of the present case since we are not dealing with any recovery proceedings.
29. In Ashwani Trikha, supra, Jaipur Bench quoting the relevant observations/discussions of the third Member in OA No. 153/2019 in the case of Mrs. Gurmail Kaur vs The Commissioner, KVS & Anr and connected matters has held thus:
"10. xxxxxxxxx The relevant observations / discussions of the third Member read as under: -
xxxxxxxx xxxxxxxx xxxxxxxx 45 OA.No.170/00989/2019/CAT/BANGALORE
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.
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, 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.
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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 OA No. 611/2019, OA No. 402/2019 & OA No. 541/2019 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 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."
From perusal of the above, it is clear that the third Member was of the 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 the case of Jaspal Kaur (supra) and objection of limitation and law thereon, the judgments of the Hon'ble High 47 OA.No.170/00989/2019/CAT/BANGALORE 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, third Member was of considered opinion that the 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.
Further, third Member was in respectful agreement with the common order/judgment dated 17.01.2022 passed by the Member (J) of this Bench of the Tribunal in the aforesaid OAs.
xxxxx xxxxx From perusal of the above observations, it is clear that respondents were unable to produce the service records of the applicant stating that the records are more than 30 years old, hence, the same cannot be produced. But it was required to deal with the issue as to whether or not option has been given by the applicant and accordingly come to conclusion that according to provisions of para 3 of OM dated 01.09.1988, all CPF beneficiaries who were in service as 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 GPF-cum-Pension Scheme. It was also observed that that there is no necessity to opt for pension scheme. If an employee has not opted for Pension Scheme after issuance of Circular dated 01.09.1988 even then he is deemed to be a member of pension scheme. The requisite as per the said circular is that the employee must exercise option for CPF after 01.09.1988. If no such option is exercised then no benefits can be given under CPF Scheme." 48
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30. In the light of these judgments, it is manifestly clear that there was no pension scheme for KVS employees at the time of the applicant joining the service in the KVS, the Pension Scheme was introduced vide OM dated 01.09.1988 pursuant to the OM dated 01.05.1987 issued by the Government of India. In terms of the said OM, the employees joining service on or after 01.01.1986 shall be governed only by the GPF scheme, however, for all CPF 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 applicant is deemed to have been switched over to GPF. The defence of the KVS that the applicant has opted for CPF is not supported by any documents. Hence, KVS has placed strong reliance on Jaspal Kaur case, supra.
31. In Jaspal Kaur, supra, it was the specific stance of KVS that the Jaspal Kaur and others had opted for the benefit of CPF scheme, a new CPF Account Number was allotted to Respondent No. 1, further, revised CPF Account Number was allotted. The controversy relating to the exercise of option by Jaspal Kaur was adjudicated with reference to the secondary pieces of evidence 49 OA.No.170/00989/2019/CAT/BANGALORE made available before the Court. No such evidence is made available in the present case. On the other hand, in Writ Petition No. 13121/2020 filed by KVS against the order dated 12.02.2020 in OA No. 990/2019 passed by this Tribunal, in paragraph 6 of the Writ Petition, it has been stated as under:
"6. It is submitted that the 1st respondent though failed to exercise option to continue under CPF Scheme which was required to be opted in pursuance to the KVS OM dated 01.09.1988 and deemed to be continued under GPF Scheme, the 1st respondent was continued to be CPF optee till retires from service on superannuation wef 30.09.2013. It is submitted that the deduction of the contribution of the 1st respondent towards CPF contribution was made every month in the salary of the 1st respondent till her retirement and the same was well within her knowledge. The 1st respondent did not raise any objection, obviously for the reason that the said scheme was advantageous to her. Even on superannuation, the 1st respondent without raising any objection had received all the pensionary benefits available under the CPF Scheme."
(emphasis supplied) Thus, it was specifically stated that the applicant has not opted for CPF scheme.
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32. However, it was argued that the applicant right from their inception in service were claiming the benefits of CPF scheme. Thus, in the said Writ Petition, the Hon'ble High Court of Karnataka has observed thus:
"4. Learned counsel for the petitioner-Commissioner, Kendriya Vidyalaya Sangathan, argued before this Court that the applicants right from their inception in service were claiming the benefits of the CPF Scheme and they woke up from slumber after retirement started claiming the benefits of the GPF Scheme. He has stated that the Tribunal by referring to a decision by the Karnataka High Court in the matter of rate of interest has allowed the original application and no details of the judgment finds place in the order passed by the Tribunal.
5. Learned counsel for the parties have fairly stated before this Court that the matter may be remanded to the Tribunal for fresh adjudication on merits."
Accordingly, the matter has been remitted back to this Tribunal, keeping open all the issues and directing the Tribunal to decide the matter on merits, in accordance with law.
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33. In the second round of litigation, the two grounds urged by the KVS are:
1) Applicant has exercised option as per OM dated 01.09.1988 though stated "failed to exercise the option" in the Writ Petition pleadings.
2) Retired employee cannot raise from the slumber and seek for change over to GPF scheme from CPF i.e. on the ground of delay and laches.
34. Even assuming for a moment, accepting the deduction of the contribution towards CPF contribution made every month in the salary of the applicant till her retirement, the applicant appears to have exercised her option as contended by KVS which, in fact, is not unequivocally demonstrated by the KVS, applying the judgment of Virmani, supra, the claim of the applicant cannot be turned down. 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 52 OA.No.170/00989/2019/CAT/BANGALORE 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 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. Similarly, in the light of Manju Sahgel, supra, though the claim of the applicant that upon her selection as Principal her services begun as new entrant i.e. after 01.01.1986, cannot be accepted, the claim to switch over from CPF scheme to GPF scheme cannot be denied in the wake of the judgment of the Hon'ble Apex Court in Shashi Kiran, supra. In our considered view, Jaspal Kaur would not come to the assistance of the respondents.
35. As discussed herein above, CAT, Jaipur Bench has considered identical issue and allowed the claim of similarly situated persons. We find no reason to differ from the same in view of the judgment of the Hon'ble Apex Court in Shashi Kiran, 53 OA.No.170/00989/2019/CAT/BANGALORE supra. At the cost of repetition, we observe that according to the OM dated 01.05.1987 and OM dated 01.09.1988, 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 KVS 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 KVS for recouping the contribution under CPF with simple interest at 8% p.a.
36. For the aforesaid reasons, denial of such benefit to the applicant which indeed has been extended to similarly placed persons as referred to above, would be discriminatory and violative of Articles 14 and 16 of the Constitution. Thus, we cannot sustain Annexure-A16 impugned herein.
37. Hence, we pass the following:
54
OA.No.170/00989/2019/CAT/BANGALORE ORDER
1) The communication/letter dated 02.05.2019 at Annexure-A16 issued by the Respondent No. 2 is set aside.
2) Respondents shall consider the services of the applicant as governed by GPF-cum-Pension Scheme in terms of para 3 of OM dated 01.09.1988 and extend pensionary/retiral benefits to the applicant subject to recouping the contribution of CPF amount with simple interest at 8% p.a., after providing an opportunity to exercise option to the applicant.
3) OA stands disposed of in terms of above.
4) No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
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