Central Administrative Tribunal - Allahabad
Shri Bakhte Muneem vs Kendriya Vidyalaya Sanghthan on 28 August, 2023
RESERVED ON 24.08.2023.
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Dated: This the 28th of AUGUST 2023
PRESENT:
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Dr. Sanjiv Kumar, Member (A)
Original Application No. 330/00800 of 2020
1. Shri Bakhte Muneem aged about 58 years, S/o Sh. Hazi Abbdul
Haque R/o Vill- Mughal Mazra, P.O Punwarka, Distt. Saharanpur
(UP) 247150.
2. Sh. Musharraf Ali aged about 61 years, S/o Late Islammuddin R/o
Moh- Ansarian, P.O Kiratpur, Distt. Bijnore.
3. Sh. P.C. Sharma aged about 75 years, S/o Late Sh. G.R. Sharma
R/o S.G Homes, 401/Block-A, Sector 3, Vasundhara, Gaziabad
(UP) 202112.
4. Smt. Alka Rani Dubey aged about 67 years D/o Sh. Hrishikesh
Pandey R/o 5C Tagore Town, Allahabad.
5. Sh. Kadam Singh age about 61 years, S/o Sh. Manohar Lal R/o
803/1, Gwalior Road, Jhansi.
6. Smt. Farzana Franklin aged about 61 years, W/o Sh. John Franklin
R/o C-862, Guru Teg Bahadur Nagar, Kareli, Prayagraj-21.
7. Sh. Kailash Pati Pandey, aged about 60 years, S/o Late R.N.
Pandy R/o Village Pajupar, P.O. Shivpur, Distt.: Gorakhpur 273412.
8. Sh. Kailash Nath Pandey aged about 75 years, S/o Late Uma Nath
Pandey R/o Flat No. JH-1104 Near Kala Patthar, Indirapuram,
Ghaziabad 201010.
. . . Applicants
By Adv: Shri D.K. Tandon
VERSUS
1. Union of India through its Secretary, Ministry of Human Resources
& Development, Department of Education, Shastri Bhawan, New
Delhi.
2. The Commissioner, Kendriya Vidyalaya Sangathan, 18, Institutional
Area, Shaheed Jeet Singh Marg, New Delhi 110016.
3. The Additional Commissioner (Admn.), Kendriya Vidyalaya
Sangathan, 18, Institutional Area, Shaheed Jeet Singh Marg, New
Delhi 110016.
4. The Joint Commissioner (Finance), Kendriya Vidyalaya Sangathan,
18, Institutional Area Shaheed Jeet Singh Marg, New Delhi -
110016.
..
.Respondents
2
By Adv: Shri Chakrapani Vatsyayan/Shri D.P Singh
ORDER
By Justice Om Prakash VII, Member (J) The present O.A has been filed by the applicants under section 19 of the Administrative Tribunal Act, 1985 seeking the following reliefs:-
"(i) quash the order dated 7th April 2015 communicated the decision of respondent NO.1 i.e. Govt. of India Ministry of Human Resource Development (Department of School Education & Literacy) in not agreeing to the proposal of Kendriya Vidyalaya Sangathan on one time permission to change over from CPF to GPF scheme for Kendriya Vidyalaya Sangathan/KV teaching and non-teaching staff and the decision of Govt. of India by KVS vide letter dated30.11.2015, letter dated 06.06.2019, 04.06.2019, 01.09.2019, 27.05.2021, 14.06.2019 and 20.06.2019 as contained in Annexure No. A-1 and Annexure No. A-2 to the original application.
(ii) Direct the respondents Kendriya Vidyalaya Sangathan to extend the benefit of pension scheme to the applicants as the Kendriya Vidyalaya Sangathan took a final decision on 31.05.1988 to implement the decision of Govt. of India Mutatis Mutandis to treat applicants to deem to have been under Pension Scheme after 30.09.1987 as per Govt. of India decision.
(iii) Direct the respondents Kendriya Vidyalaya Sangathan to treat the applicants under Pension Scheme w.e.f 01.10.1987 and to pay pension to applicants from the date of their retirement.
(iv) Direct the respondents Kendriya Vidyalaya Sangathan to extend the similar benefit of pension scheme to the applicants in the light of similar benefits extended to other autonomous bodies after Vth and VIth Pay Commission and in the light of the judgment of this Hon'ble CAT Ernakulam Bench, Hon'ble High Courts of Delhi & Kolkata as affirmed by Hon'ble Supreme Court.
(v) May also pass any further order (s) direction (s) as be deemed just and proper to meet the ends of justice".
2. The brief facts of the cases are that all the applicants joined Kendriya Vidyalaya Sangathan in different years and have retired from 3 service. It is stated that all the applicants are ready to surrender the management share accumulated in their account and applicant Nos. 2 to 6 & 8 are ready to refund full Government contributions which they have derived along with the interest as per para 3.7 of the Kendriya Vidyalaya Sangathan (in short KVS) O.M. dated 1.9.1988. It is further stated that at the relevant time i.e. in the year 1985 both the scheme namely CPF as well as GPF scheme were in vogue in respect of employees of KVS. So far as the applicants are concerned, they were under CPF scheme.
3. The Govt. of India vide order dated 1.5.1987 came out with a policy decision that 'all CPF beneficiaries who were in service on 1.1.1986 and who are still in service on the date of issue of this order will be deemed to have come over to the Pension scheme'. KVS in its 51 meeting of Board of Governors held on 31.5.1988 decided to implement the decision of Govt. of India mutatis mutandis and decision of KVS vide O.M. dated 1.9.1988 was circulated to all concerned. On 1.9.1988, the date on which the Govt. of India decision was adopted to be implemented Mutatis Mutandis, the applicants including other employees of the KVS were deemed to have come over the pension scheme. Since KVS was not paying heed to the request of its employees to cover them under GPF scheme despite several representations, an exhaustive representation was filed on 26.3.2012 individually as well as in the representative capacity through one of the applicants for granting the terminal benefits of CCS Pension Rules, 1972. Ministry of Human Resource Development, Deptt. Of School Education and Literacy vide letter dated 25.4.2013 has communicated that IFD desired that in the light of O.M. dated 1.5.1987 of Department of Pension and Pensioners' Welfare examine the proposal in detail. Joint Commissioner (Finance), KVS submitting a proposal to the Under Secretary to the Govt. of India , Ministry of HRD vide letter dated 7.7.2013 informed for grant of permission to CPF optees to switch over from CPF to GPF cum pension scheme who were appointed on or after 1.1.1986 to 31.12.2003. Joint Secretary (Finance), KVS vide letter dated 3.2.2014 has informed to Ministry of HRD that at present there are 1346 employees in KVS who are covered under CPF scheme. In case they are permitted for change over from CPF to GPF scheme Rs. 1.74 crore+ DA has to be paid as pension per month whereas the amount accumulated in their account under Management Contribution amounting to Rs. 73.80 crore will be surrendered and further KVS need not incur any expenditure 4 towards Management share yearly basis. The KVS again requested for grant of one time permission for change over from CPF to GPF for KVS/KV teaching and Non-teaching staff. In response to the letter dated 24.2.2014, Joint Commissioner (Finance) KVS has forwarded the authenticated copies of circulars of the following departments in which the employees of many department have been extended the option to join the pension scheme. M/o HRD vide letter dated 7th April 2015 has communicated to KVS that the proposal for grant of one time permission for changing from CPF to GPF cum pension scheme was considered in consultation with the Department of Expenditure who examined the proposal has inter-alia observed as under:-
"The employees of KVS who were in service as on 1.1.1986 and decided to opt for CPF made a conscious decision knowing well that the option once exercised is final, grant of one more option to such CPF subscriber in KVS could have repercussion elsewhere with such an option having to be extended to all other CPF beneficiaries as well as whose number is quite substantial.
In view of the above position, the proposal of grant of one time permission for changing from CPF to GPF-cum-pension scheme for teaching and non-teaching staff of KVS is not agreed to."
4. Per contra, learned counsel for the respondents filed counter reply in the O.A stating therein that as per KVS (HQ) Memorandum dated 1.9.1988, existing CPF employees were allowed to exercise the option for retaining the CPF benefits. When such option is exercised, it is final and binding which could not be revised at this stage. It is further submitted that provisions contained in Department of Pension and Pensioners Welfare Office Memorandum dated 1.5.1987 are applicable only to Civilian Central Govt. employees who are subscribing to the CPF under Contributory Provident Find Rules (India), 1962 and employees of statutory/autonomous bodies are not automatically covered by this O.M. The KVS is an autonomous body. The Board of Governors of KVS in its 51st meeting held on 31.5.1988 decided to implement mutatis mutandis the decision taken by the Govt. of India on the recommendation of the IVth Pay Commission for the KVS employees for changing over from CPF to GPF in the manner indicated in O.M. dated 1.5.1987 and it was accordingly decided vide O.M. dated 1.9.1988 that persons joining service on or after 1.1.1986 shall be governed by GPF cum Pension scheme. The employees who would like to continue in CPF scheme was however required to exercise an option to continue in CPF. When such option is 5 exercised it is final and binding and could not be revised at this stage. It is further submitted that KVS placed an agenda before the Finance Committee and Board of Governors for considering the case of CPF optees who were directly recruited from 1.1.1986 to 31.12.2003 and the Board of Governors directed that the matter may be referred to M/o HRD. The matter was considered by the M/o HRD in consultation with the Department of Expenditure and M/o HRD vide letter dated 7.4.2015 informed that the Department of Expenditure after examining the proposal has inter-alia rejected the proposal of KVS.
5. Heard the learned counsel for the parties and perused the records.
6. The submission of the learned counsel for the applicants is that huge financial disparity has been created between the employees resulted in equals being treated unequally due to reduction of interest rate from 12-13% to 8%, allowing dearness allowance and fixed medical allowance, increase of commutation of pension from 33% to 40% by the Vth Pay Commission and payment of full pension on last pay drawn on completion of 20 years of service by 6th CPC whereas no benefit has been granted to the employees having CPC scheme from 4th Pay Commission which is discrimination between the two sets of employees and violative of Article 14 and 16 of Constitution of India. In addition to that from 80 years to 100 years of employees will get additional pension @ 20% , 30%, 40% , 50% and full double pension on every five years whereas no parallel benefits with advancing age has been granted to the applicants governed by CPF scheme. It is further argued that on 1.9.1988, the date on which the Govt. of India decision was adopted to be implemented mutatis mutandis by the KVS, the applicants and other employees of KVS were deemed to have come over the pension scheme automatically. It is further argued that prior to IVth Pay Commission, the Govt. of India has given permission number of times to its employees for change over from CPF to GPS but after IVth Pay Commisison no such order for change over have been issued. It is further argued that proposal of switch over from CPF to GPF cum pension scheme submitted by KVS with approval of Finance Committee and Board of Governors but the Ministry of Finance and Ministry of HRD have rejected the proposal on mechanical manner without considering the merit of the case. Learned counsel for the applicants also argued that applicants except few of them 6 have not exercised option, thus they shall automatically be treated under the GPF cum Pension scheme. There is no delay in filing the OAs. Cause shown in the O.As are recurring cause. Action of the respondents is violative of right accrued in favour of the applicants. Learned counsel for the applicants has relied upon the following case laws:-
"i) O.A. No. 411/2017 (Ms. Kumudini Pandey Vs. Commissioner of KVS decided on 11.10.2018 by Jodhpur Bench of CAT)
ii) O.A. No. 2912/2018 (Dr.V.D. Arya Vrs. Commissioner, KVS decided on 22.1.2021 by CAT, Principal Bench.
iii) W.P. © No. 6193/2020 CM App. 22192/2020 (KVS Vs. Dr. V.D. Arya) decided on 22.1.2021 by Hon'ble High Court of Delhi)
iv) O.A. No. 972/2017 (Smt. Saroj Sharma Vs. UOI) decided on 24.9.2019 by CAT Principal Bench.
v) O.A. No. 157/2019 (Mrs. Ina Barua Vs. Commissioner, KVS decided on 14.8.2019 by CAT, Guwahati Bench).
vi) O.A. No. 472/2016 (Shri Biraj Kumar Sharma Vs. KVS decided on 2.1.2020 by CAT Guwahati Bench)
vii) O.a. No. 854/2020 (Smt. Raminder Loth Vs. UOI decided on 2.3.2021 by CAT, Principal Bench)
viii) W.P. No. 5895/2021 (Commissioner, KVS VS. Smt. Usha Rajagopalan decided on 10.3.2021 by Hon'ble High Court of Madras)
ix) W.P. No. 17161/2020 (Commissioner, KVS Vs. R. Amutha decided on
7.12.2020 by Hon'ble High Court of Madras.)
x) SLP Nos (18372/2021 (Commissioner, KVS Vs.Usha Rajagopalan decided on 6.12.2021 by Hon'ble Apex court)
xi) Compliance order dated 13.6.2022
xii)W.P. No. 10993 and 11027 of 2020 (Dr. Kishore K. John Vs. UOI decided on 23.4.2021 by Hon'ble High Court of Madras.
xiii) W.P. No. 14158/2019 (Gajendra Singh Rathore Vs. KVS and other)
xiv) Civil AppealNo. 3797-3809 of 2022 (Arising out of Diary No. 13901 of 2017) University of Delhi Vs. Smt. Shashi Kiran decided on 10.5.2022 by Hon'ble Apex Court.
xv) Govt. of India Ministry of Education vide letter dated 20.12.2022 communicated to the Secretary , University Grant Commisison to implement the order of Hon'ble Supreme Court in Civil Appeal No.3797-3022 of 2022 xvi) W.P. No. 6050 of 2019 (UOI Vs. Priyabarat Singh decided on 14.9.2022 by Hon'ble High Court of Jharkhand,Ranchi xvii) O.a. No. 153/2019 (Mrs.Gurmail Kaur Vs. The Commissioner , KVS decided on 26.4.2022 by Full Bench of CAT Jaipur Bench xviii) O.A. No. 611/2019 (Ashwani Trikha Vs. KVS decided on 27.9.2022 by CAT Jaipur Bench) xix) W.P. © No. 4519/2020 (KVS Vs. Biraj Kumar Sharma decided on 8.2.2022 by Hon'ble High Court of Guwahati".
77. Learned counsel for respondents argued that KVS has implemented its memorandum dated 1.9.1988 in letter and spirit. Some of the applicants have given their option to continue in CPF scheme as per their own violation. To substantiate this argument, learned counsel referred to the Supplementary Affidavit. In respect of other applicants, the option forms are not traceable due to lapse of more than 28 years. However, the secondary records such as pay bills, CPF statement issued, Form 16 issued for filing income tax return shows and indicates that they were aware of continuing under CPF scheme. It is further argued that applicants were issued Form 16 to file Income Tax Return for different years duly mentioning the CPF deduction made through monthly pay bills. It clearly shows that remaining applicants had also opted for continuing CPF and they continued in CPF scheme from beginning without any objection. Making contribution in CPF scheme continuously by the applicants shows that there is no justification in their claim for conversion from CPF to GPF cum pension scheme. Learned counsel for respondents further argued that once option was exercised for the CPF that became final even if original document relating to option was not produced as observed by the Hon'ble Apex Court in the case of KVS Vs. Jaspal Kaur and others. In the case of UOI and others Vs. M.K.Sarkar 2010 (2) SCC page 59, Hon'ble Apex Court has clearly observed that "If his request for such belated exercise of option is accepted, the effect would be to permit the respondent to secure the double benefit of both provident fund scheme as also pension scheme, which is unjust and impermissible. The validity period of the option to switch over to pension scheme expired on 31.12.1978 and there was no recurring or continuing cause of action. The respondent's representation seeking an option to shift to pension scheme with effect from 1976 ought to have been straight away rejected as barred by limitation/delay and laches." Learned counsel for respondents has relied upon the following case laws:-
"i) UOI Vs. M.K.Sarkar 2010(2)SCC 59
ii) Writ No. 7712 of 2020 KVS and others Vs. Manju Sahgel by Delhi High Corut decided on 12.3.2021.
iii) Chennai Metropolitan Water Supply & Sewarage Board Vs. T.T. Murli Babu 2014(4) SCC 108
iv) Krishna Kumar Vs. UOI and others 1990(4) SCC 207 8
v) O.A. No. 130 of 2018 (Rajbala Srivastava Vs. KVS and others decided by CAT Allahabad Bench on 11.2.2019
vi) Civil Appeal No. 2876 of2007 KVS and others Vs. Jaspal Kaur by Hon'ble Supreme Court on 6.6.2007
vii) Writ No. 4576 of 2018 (Bir Mani Prasad Vs. VUO ) decided on 5.4.2018 by Patna High Court
viii) Writ No. 7648 of 2014 (Vinai Shanker Prasad Singh Vs. UOI decided on 15.3.2016 by Hon'ble Patna High Court
ix) Writ No. 59680 of 2007 (Krishna Swaroop Sharma Vs. Allahabad bench ) decided on 4.4.2022 by Hon'ble High Court of Allahabad.
x) O.A.No. 942/2016 (Smt. Shashi Gupta Vs. KVS and others) CAT Principal Bench decided on 16.10.2018
xi) O.a. No. 1271 of 2013 (N. Pramila Devananda Vs.KVS and others) decided on 4.7.2014 by CAT- Hyedrabad Bench
xii)State of Rajasthan Vs. Pensioners AIR 1991(SC) 1743.
8. We have considered the rival submissions of the parties and have gone through the entire record.
9. From perusal of records, it is evident that Ministry of Personnel, Public Grievance and Pensions, Department of Pension and Pensioners' Welfare vide letter dated 1st May 1987 issued O.M. regarding changeover of the Central Govt. employees from the Contributory Provident Fund Scheme to GPF-cum-Pension Scheme for Implementation of recommendations of the Fourth Central Pay Commission. In para 3.2 of the aforesaid O.M. , it is clearly mentioned that "The employees of the category mentioned above will, however, have an option to continue under the CPF scheme. 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." In para 3.6 of the aforesaid O.M., it is also mentioned that "The option once exercised shall be final." Since, KVS is an autonomous body, the aforesaid O.M. was not applicable on them, they issued O.M. dated 1.9.1988 regarding Change Over of the Kendriya Vidyalaya Sangathan employees from the Contributory Provident Fund Scheme to Pension Scheme. And cut of date for submitting option was fixed as 31.1.1989. In para 3.2 of the scheme of KVS, it is clearly mentioned that "The employees of the category mentioned above will however have 9 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/Principal by 31.1.1989, in duplicate, in the form enclosed, if the employees wish to continue under the CPF scheme. If no option is received by the Head of Office through them by 28.2.1989, the employees will be deemed to have come over the Pension Scheme." In para 3.6 of this O.M. , it is also clearly mentioned that "The option once exercised shall be final."
10. In the Counter reply, it is mentioned that the some of the applicants have given their option to continue in CPF scheme as per their own violation. In respect of other applicants, the option forms are not traceable due to lapse of more than 28 years. However, the secondary records such as pay bills, CPF statement issued, Form 16 issued for filing income tax return shows and indicates that they were aware of continuing under CPF scheme. It is further mentioned that applicants were issued Form 16 to file Income Tax Return for different years duly mentioning the CPF deduction made through monthly pay bills. It clearly shows that remaining applicants had also opted for continuing CPF and they continued in CPF scheme from beginning without any objection. During whole service, applicants have not objecting regarding deduction of CPF from their salary.
11. In the case of Ms. Kumudini Pandey Vs. Commissioner, KVS (Supra), CAT, Jodhpur Bench has observed 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. Therefore, the action of the respondents in treating the applicant governed by CPF scheme after 1.9.1988 in absence of any option form submitted by her is hereby declared illegal.
12. In O.A.No. 2912/2018 (Dr.V.D. Arya) Vs. the Commissioner (KVS) (supra), in the instant case, applicant had exercised option on 25.2.1989 but Administration rejected the same through letter dated 26.7.1989 on the ground that it was submitted after the last date i.e. 30.1.1989 and administration has informed the applicant that he is brought under GPF, hence it was not opened for the respondents to plead otherwise. Therefore, the Tribunal allowed the O.A. 10
13. The judgment in Dr. V.D.Arya case was challenged before the Hon'ble High Court of Delhi, in W.P. © No. 6193/2020, who affirmed the judgment of CAT, Principal Bench.
14. In the case of Smt. Saroj Sharma Vs. UOI (OA. No. 972/2017), the O.A. was allowed on the ground that copy of the option so exercised by the applicant was not traceable and cannot be produced because of lapse of 30 years is totally unfounded and baseless.
15. In the case of O.A.No.157/2019 (Mrs. Ina Barua Vs. The Commissioner of KVS) (supra), in this case, applicant joined in service after 1.1.1986, hence applicant's appointment stood covered under the GPF cum pension scheme and allowed the O.A. relying on the judgment passed by CAT Jodhpur Bench in O.A. No. 411 of 2017 (Smt. Kumudini Pandey Vs. KVS)
16. O.A.No. 854/2020 (Smt. Raminder Loth Vs. UOI) (supra), was allowed on the ground that applicant was appointed after 1.1.1986 when the CPF scheme ceased to exist and all fresh appointees were covered under the GPF cum pension scheme.
17. In the case of Commissioner, KVS Vs. Smt. Usha Rajagopan (supra), Hon'ble High Court of Madras has affirmed the order passed by Tribunal dated3.6.2020 in O.A. No. 1248/2019. In this case the petitioner has joined the KVS on 25.8.1987 and after joining the service applicant was entitled for the benefit of GPF-cum-pension scheme.
18. In the case of The Commissioner, KVS. Vs. R. Amutha W.P. NO. 17165 of 2020 (supra), applicant filed O.A. No. 422/2018 on the ground that as per para 3.2 of the O.M., when applicant did not exercise the option , she would be automatically governed by the GPF scheme. Tribunal allowed the O.A. which was challenged before Hon'ble High Court of Madras and it confirmed the order passed by the Tribunal.
19. In the case of the Commissioner, KVS Vs. Usha Rajagopan Special Leave to Appeal © No. 18372/2021, Hon'ble Apex Court dismissed the appeal. In this case applicant had filed O.A. No. 1248/2019 before CAT, Madras Bench and vide order dated 3.6.2020, CAT, Madras Bench had allowed the O.A. and observed that applicant is entitled for the 11 benefit of GPF-cum-Pension Scheme. The aforesaid order was challenged before the Hon'ble High Court of Madras, who affirmed the order passed by the Tribunal. Thereafter, SLP was filed before the Hon'ble Apex Court and Hon'ble Apex Court dismissed the SLP.
20. Vide order dated 13.6.2022, KVS has decided to comply the order passed by CAT, Madras Bench in favour of Smt. A Malarkodi in O.A. No. 1249/2019 and directed her to submit pension paper.
21. In the case of Dr. Kishore Vs. UOI (W.P. No. 10993 of 2020 (supra), Hon'ble High Court of Madras observed as under:-
" 38. This Court also finds that when the petitioners were sought to be admitted to CPF scheme at the time of their retirement/appointment in terms of the contributory provident fund Rules (India) 1962, which is again Govt. of India Rules applicable to the same Govt. servants who option for the GPF benefits, it cannot be gain said that the 2nd respondents being a society can legitimately claim insulation from applicability of Govt. scheme, namely GPF. When CPF scheme of the Central Govt. is made applicable, the claim of the petitioners herein get narrowed down only to see whether the CPF or the GPF is applicable to these petitioners. In that view of the matter, there cannot be any other conclusion by this Court except to hold that as between the two Govt. of India schemes, the GPF scheme alone is applicable to these petitioners. The objection that the society being the employer of these petitioners as a consequence of which, their status would suffer diminution would have no legal sanctity or relevance for the ultimate consideration of the petitioners' claim.
39. In the conspectus of the above judicial discourse, this court is of the considered view that in all fours these petitioners have made out a clear case for grant of the relief.
40. In the said circumstances, this Court finds that the impugned order passed by 5th respondents is liable to be set aside being illegal, unreasonable , discriminatory and violative of Article 14 of the Constitution of India and also it is violative of the law laid down by the Hon'ble Supreme Court and this Court.
41. In the result, the writ petition are allowed the impugned proceedings of the5th respondents in ID Note No. 683 /PONSHE/Estt/E!/2019 dated 18.11.2019 are hereby set aside. The respondent No.1 and 2 are directed to bring the petitioners under the then GPF scheme for the purpose of grant of pension to these petitioners in accordance with the CCS (Pension) Rules, 1972. The competent authority /respondents are directed to pass appropriate orders in this regard within a period of 8 weeks from the date of receipt of a copy of this order. No costs. Consequently, connected WMPs are closed."
22. In the case of Gajendra Singh Rathore Vs. KVS, Hon'ble High Court of Rajasthan at Jodhpur dismissed the writ petition and affirmed the 12 order passed by CAT in O.A. No. 411/2017 and directed the respondents to convert the petitioner in the GPF scheme.
23. In the case of University of Delhi Vs. Smt. Shashi Kiran and others (supra), Hon'ble Supreme Court has observed as under:-
"24. According to the notification dated 01.05.1987, the employees joining the service after 01.01.1986 would always be under GPF. With respect to those who were in service on 01.01.1986, said employees would be deemed to have "come over" to GPF unless an option to continue to be under CPF was consciously exercised before the cut-off date. Thus, when the Scheme was framed and was sought to be implemented, the concerned authorities must have taken into account the entire magnitude such as, the number of employees and the likelihood of impact on the management of the fund, so that reasonable returns can be effected by way of pension upon retirement of such persons. Going by the intent of the notification, those who were to opt for CPF, were an exception and the general rule was that everybody after 01.01.1986 would normally be covered by GPF. It is in this context that the number of original petitioners in Shashi Kiran batch of cases has to be seen. We are concerned with only 75 persons. On the other hand, the bulk of people namely 2469 employees were granted the choice of reverse switchover and they were allowed all the benefits under GPF. It can reasonably be said that when the notification dated 01.05.1987 was issued, the authorities were conscious of the possibility that all the employees may 'come over' to GPF. With that possibility in mind, the fund was constituted and the affairs were arranged. The shift of those 75 employees would not in any way affect the strength and the character of the fund if a direction that the entire contribution made by the authorities be returned with reasonable rate of interest is issued. These 75 petitioners had approached the Court in the year 2010. At this length of time, it is not as if any floodgates are going to open and there will be drain on the resources of the State. A direction can, therefore, be issued, as was done by the learned Single Judge in paragraph 20 of his Judgment in R.N. Virmani batch of cases and which aspect was mentioned in the letter dated 23.01.2017 referred to in paragraph 8 hereinabove, for recouping the contribution under CPF with 8% simple interest per annum.
25. Considering the circumstances on record, in our view, the decision rendered by the Division Bench of the High Court in Shashi Kiran batch of cases does not call for any interference except to the extent of direction for recouping of the contribution under CPF with 8% simple interest per annum. It is possible that at this length of time, some of the employees in Shashi Kiran batch of cases may not be interested in switchover to GPF. But an option must be afforded to them in such manner as the authorities deem appropriate.
26. All these appeals are therefore disposed of in aforestated terms, with no order as to costs."
24. In the case of The Union of India Vs. Priyabrat Singh (supra), the order passed by CAT Patna Bench in O.A. No. 132/2019 has been 13 challenged before the Hon'ble High Court of Jharkhand, Ranchi , by which CAT Patna Bench has quashed the order dated 8.10.2015 and stated that as per the DOP&T O.M. dated 1.5.1987, all CPF beneficiaries, who were in service on 1.1.1986 and who were still in service on the date of issue of these orders would be deemed to have come over the pension scheme, Hon'ble High Court dismissed the writ petition.
25. In O.A.No. 153/2019 (Mrs. Gurmail Kaur Vs. The Commissioner KVS (supra), CAT, Jaipur Bench observed as under:-
"27. 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 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 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 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 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 14 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.
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.
1529. 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.
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 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 16 Order/Judgment dated 17.1.2022 passed by the Hon'ble Member (A) in the aforesaid OAs. Order accordingly.
26. In the case of Ashwani Trikha Vs. KVS (O.A. No. 611/2019, CAT Jaipur Bench, after following the order passed by CAT in the case of Mrs. Gurmail Kaur Vs. Commissioner, KVS (referred above in this judgment), allowed the O.A.
27. In the case of Union of India Vs. M.K. Sarkar (supra), the Hon'ble Apex Court has observed as under:-
"7. When a scheme extending the benefit of option for switchover, stipulates that the benefit will be available only to those who exercise the option within a specified time, the option should obviously be exercised within such time. The option scheme made it clear that no option could be exercised after the last date. In this case, the respondent chose not to exercise the option and continued to remain under the Contributory Provident Fund Scheme, and more important, received the entire PF amount on his retirement. The fact that the respondent was the head of his 6 department and all communications relating to the offer of Eighth Option and the several communications extending the validity period for exercising the option for pension scheme, were sent to the heads of the departments for being circulated to all eligible employees/retired employees, is not in dispute. Therefore, the respondent who himself was the head of his department could not feign ignorance of the Eighth Option or the extensions of the validity period of the Eighth Option. In fact, as noticed above, in his application before the Tribunal the respondent refers to all the options. He is careful to say that he was not 'intimated' about the contents of the last order relating to extension of the option, but does not say that he was unaware of the order extending the benefit of option. The respondent consciously chose not to exercise the option as he admittedly thought that receiving a substantial amount in a lump sum under the provident fund scheme (which enabled creation of a corpus for investment) was more advantageous than receiving small amounts as monthly pension under the pension scheme. In those days (between 1957 when the pension scheme was introduced and 1976 when the respondent retired) the benefits under the provident fund scheme and pension scheme were more or less equal; and there was a general impression among employees that having regard to average life expectancy and avenues for investment of the lump sum PF amount, it was prudent to receive a large PF amount on retirement rather than receive a small pension for a few years (particularly as there was a ceiling on the pension and as dearness allowance was not included in the pay for computing the pension).
8. From 1980 onwards, gradually the pension scheme became more and more attractive as compared to the Contributory Provident Scheme, on account of various factors, like dearness allowance being included in the pay for computing pension, 17 ceiling on pension being removed and liberalisation of family pension etc. But the respondent was well aware that not having opted for pension scheme and having received the PF amount on retirement, he was not entitled to seek switch over to pension scheme. But in 1996, when the respondent learnt that some others who had retired in and around 1973 to 1976 had been permitted to exercise the option in 1993- 94 on the ground that they had not been notified about the option, he decided to take a chance and gave a representation seeking an option to switch over to pension scheme. Having enjoyed the benefits and income from the provident fund amount for more than 22 years, the respondent could not seek switch over to pension scheme which would result in respondent getting in addition to the PF amount already 8 received, a large amount as arrears of pension for 22 years (which will be much more than the provident fund amount that will have to be refunded in the event of switch over) and also monthly pension for the rest of his life. If his request for such belated exercise of option is accepted, the effect would be to permit the respondent to secure the double benefit of both provident fund scheme as also pension scheme, which is unjust and impermissible. The validity period of the option to switch over to pension scheme expired on 31.12.1978 and there was no recurring or continuing cause of action. The respondent's representation dated 8.10.1998 seeking an option to shift to pension scheme with effect from 1976 ought to have been straight away rejected as barred by limitation/delay and laches.
10. Even on merits, the application has to fail. In Krishena Kumar vs. Union of India
- 1990 (4) SCC 207, a Constitution Bench of this Court considering the options given to the Railway employees to shift to pension scheme, held that prescription of cut off dates while giving each option was not arbitrary or lacking in nexus. This Court also held that provident fund retirees who failed to exercise option within the time were not entitled to be included in the pension scheme on any ground of parity. Therefore, the respondent who did not exercise the option available when he retired in 1976, was not entitled to seek an opportunity to exercise option to shift to the pension scheme, after the expiry of the validity period for option scheme, that too in the year 1998 after 22 years.
28. In the case of Kendriya Vidyalaya Sangathan Vs. Manju Sahgel (supra), Hon'ble Delhi High Court has observed as under:-
"11. As regards the contention of the respondents, that upon their selection as PGT/Principal their service began as new entrant and therefore they would be entitled to be part of the GPF cum pension scheme, the same cannot be accepted as the respondents had joined the employment of the petitioner KVS as teachers well before the cut-off date and the said employment continued without any break of service. Further, 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, this contention of the Respondents is self-destructive.18
It Signature Not Verified Signed By:MAMTA ARYA Signing Date:15.03.2021 15:48:31 may also be relevant to mention here that the respondents superannuated from service and accepted their retirement dues under the CPF without any protest or demur. It is almost after 10 years that they made a representation for the first time for converting them from CPF to GPF cum pension scheme. The said request not having been considered favourably, the respondents chose to file OAs before the CAT.
12. As regards the reliance placed by the counsel for the respondents on the judgment of this Court in V.D. Pandey case (supra), the same would not be applicable to the facts of the present case as in the said case the representation was made by the employees before their retirement, whereas in the present case the representation was made long after their retirement. Similarly, in the judgment of this Court Dr. V.D. Arya case (supra) the employees had made a representation to KVS prior to their retirement and therefore, the said judgment will have no application in the present case. Similarly, in Hoshiar Singh case (supra), the employees had approached the CAT before their retirement.
13. The present case is squarely covered by the judgment of the Hon'ble Supreme Court in Jaspal Kaur case (supra), which was in the context of KVS teachers like the Respondents herein. In the said case also, KVS could not produce the original option form exercised by the employee. However, placing reliance on secondary documents, that clearly establish that the employee was aware that deductions towards CPF subscriptions were being made, the Hon'ble Supreme Court held that such secondary documents clearly establish that the employees had exercised option under CPF scheme and accordingly, set aside the judgment of the CAT and the High Court. Reliance may also be placed on the judgment of the Division Bench of this Hon'ble Court in Delhi Transport Corporation Vs. Madhu Bhushan Anand and other connected petitions, 172 (2010) DLT 668 wherein the Court was seized of the similar issue in the context of employees of DTC who wanted to shift from CPF scheme to the GPF cum pension scheme. In the said case also, the employees made representations for shifting from CPF to GPF cum pension scheme much after they had taken voluntary retirement (VRS) and upon being unsuccessful approached the CAT. Distinguishing the judgment of the Hon'ble Supreme Court in Tarsem Singh case (supra), the Division Bench held that the case of the employees would be barred under the law of limitation as they had received their full dues as per the CPF scheme upon their retirement and if they had any grievance they could have filed legal proceedings within three years of having received their dues. Accordingly, claim of the employees was rejected on the ground of limitation as well as delay and laches.
The dicta of the said judgment is squarely applicable in the present case".
29. In the case of Chennai Metropolitan Water ... vs T.T. Murali Babu on 10 February, 2014 (supra), Hon'ble Apex Court has observed as under:-
"16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same.19
The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant
- a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis. In the case at hand, though there has been four years' delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent-employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons - who compete with 'Kumbhakarna' or for that matter 'Rip Van Winkle'. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold.
17. Having dealt with the doctrine of delay and laches, we shall presently proceed to deal with the doctrine of proportionality which has been taken recourse to by the High Court regard being had to the obtaining factual matrix. We think it appropriate to refer to some of the authorities which have been placed reliance upon by the High Court."
30. In the case of Krishna Kumar Vs. UOI and Ors (supra), Hon'ble Apex Court has observed as under:-.
"12. The learned Additional Solicitor General stated that each option was given for stated reasons related to the options. On each occasion time was given not only to the persons in service on the date of the Railway Board's letter but also to persons who were in service till the stated anterior date but had retired in the meantime. The period of validity of option was extended in all the options except Nos. 3rd, 4th, 5th and 7th. We find the statements to have been substantiated by facts. The cut-off dates were not arbitrarily chosen but had nexus with the purpose for which the option was given.20
13. Mr. Shanti Bhushan however submits that applying the law laid down in Nakara's case this Court should simply strike down or read down paragraph 8.1 of the above 12th option dated 8.5. 1987. That paragraph said that aH C.P.F. benefi- ciaries who were in service on 1.1.86 and who were still in service on the date of issue of the order would be deemed to have come over to the pension scheme. It is submitted that once this limiting requirement is removed all the C.P.F. beneficiaries shall be eligible and will be deemed to have come over to the pension scheme.
14. As the basis or justification for striking or reading down paragraph 3.1 on Nakara's ratio, it is urged that all the Railway employees numbering about 22 lakhs comprising 16,22,000 in service and about 6 lakhs pensioners constitute one family and must be treated as one class as the Govern- ment's obligation to look after the retired Railway employ- ees both under the pension scheme and the provident fund scheme being the same, they could not be treated different- ly. Any differential treatment will be discriminatory and violative of Article 14 of the Constitution of India. In Nalcara's case the date arbitrarily chosen was struck down and as a result the revised formula for computing pension was made applicable to all the retired pensioners. The same principle, it is urged, has to be extended to the provident fund retires also otherwise there would be discrimination. It is stated that though at the time of choosing between provident fund and pension scheme both the alternative appeared to be more or less equal and the retired provident funders took their lump sum yet subse- quently stage by stage the pensioners benefits were in- creased in such ways and to such extent that it became more and more discriminatory against the provident funders old and new. It was because of this discrimination that aucces- sive options were given by the Railway Board for the provi- dent funders to become pensioners. Hence the submission that this limitation must go, and all the provident funders must be deemed to have become pensioners subject to the condition that the Government contribution received by them along with interest thereon is refunded or adjusted. Obviously this gives no importance to the condition in the notifications that option once exercised shall be final and binding and to the fact that in each option a cut-off date was there relat- ed to the purpose of giving that option.
16. The basic question of law that has to be decided, therefore, is what was the ratio decidendi in Nakara's case and how far that would be applicable to the case of the P.F. retirees.
18. In other words, the enunciation of the reason or princi- ple upon which a question before a court has been decided is along binding as a precedent. The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particu- lar case which gives rise to the decision. The ratio deci- dendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate considera- tion. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it. In the words of Halsbury, 4th Edn., Vol. 26, para 573:21
"The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the sub- ject matter of the decision, which alone has the force of law and which when it is clear it is not part of a tribu- nal's duty to spell out with difficulty a ratio decidendi in order to bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more rea- sons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi."
28. The argument of Mr. Shanti Bhushan is that the State's obligation towards pension retirees is the same as that towards P.F. retirees. That may be morally so. But that was not the ratio decidendi of Nakara. Legislation has not said so. To say so legally would amount to legislation by enlarg- ing the circumference of the obligation and converting a moral obligation into a legal obligation. It reminds us of the distinction between law and morality and limits which separate morals from legislation. Bentham in his Theory of Legislation, Chapter XII, page 60 said:
"Morality in general is the art of directing the actions of men in such a way as to produce the greatest possible sum of good. Legislation ought to have precisely the same object. But although these two arts, or rather sciences, have the same end, they differ greatly in extent. All actions, wheth- er public or private, fall under the jurisdiction of morals. It is a guide which leads the individual, as it were, by the hand through all the details of his life, all his relations with his fellows. Legislation cannot do this; and, if it could, it ought not to exercise a continual interference and dictation over the conduct of men. Morality commands each individual to do all that is advantageous to the community, his own personal advantage included. But there are many acts useful to the community which legislation ought not to command. There are also many injurious actions which it ought not to forbid, although morality does so. In a word legislation has the same centre with morals, but it has not the same circumference."
29. In Nakara it was never held that both the pension reti- rees and the P.F. retirees formed a homogeneous class and that any further classification among them would be viola- tive of Art. 14. On the other hand the Court clearly ob- served that it was not dealing with the problem of a "fund". The Railway Contributory Provident Fund is by definition a fund. Besides, the Government's obligation towards an employee under C.P.F. Scheme to give the matching contribution begins as soon as his account is opened and ends with his retirement when his rights qua the Government in respect of the Provident Fund is finally crystallized and thereafter no statutory obligation continues. Whether there still remained a moral obligation is a different matter. On the other hand under the Pension Scheme the Government's obligation does not begin until the employee retires when only it begins and it continues till the death of the em- ployee. Thus, on the retirement of an employee Government's legal obligation under the Provident Fund account ends while under the Pension Scheme it begins. The rules governing the Provident Fund and its contribution are entirely different from the rules governing pension. It would not, therefore, be reasonable to argue that what is applicable to the pen- sion retirees must 22 also equally be applicable to P.F. reti- rees. This being the legal position the rights of each individual P.F. retiree finally crystallized on his retire- ment whereafter no continuing obligation remained while on the other hand, as regards Pension retirees, the obligation continued till their death. The continuing obligation of the State in respect of pension retirees is adversely affected by fall in rupee value and rising prices which, considering the corpus already received by the P.F. retirees they would not be so adversely affected ipso facto. It cannot, there- fore, be said that it was the ratio decidendi in Nakara that the State's obligation towards its P.F. retirees must be the same as that towards the pension retirees An imaginary definition of obligation to include all the Government retirees in a class was 'not decided and could not form the basis for any classification for the purpose of this case. Nakara cannot, therefore, be an authority for this case.
31. The next argument of the petitioners is that the option given to the P.F. employees to switch over to the pension scheme with effect from a specified cut-off date is bad as violative of Art. 14 of the Constitution for the same rea- sons for which in Nakara the notification were read down. We have extracted the 12th option letter. This argument is fallacious in view of the fact that while in case of pension retirees who are alive the Government has a continuing obligation and if one is affected by dearness the others may also be similarly affected. In case of P.F. retirees each one's rights having finally crystallized on the date of retirement and receipt of P.F. benefits and there being no continuing obligation thereafter they could not be treated at par with the living pensioners. How the corpus after retirement of a P.F. retiree was affected or benefitted by prices and interest rise was not kept any track of by the Railways. It appears in each of the cases of option the specified date bore a definite nexus to the objects sought to be achieved by giving of the option. Option once exer- cised was told to have been final. Options were exercisable vice versa. It is clarified by Mr. Kapil Sibal that the specified date has been fixed in relation to the reason for giving the option and only the employees who retired after the specified date and before and after the date of notification were made eligible. This submission appears to have been substantiated by what has been stated by the successive Pay Commissions. It would also appear that corresponding concomitant benefits were also granted to the Provident Fund holders. There was, therefore, no discrimination and the question of striking down or reading down clause 3.1 of the 12th Option does not arise.
41. It is submitted in the alternative that if this Court feels that a positive direction cannot be made to the Gov- ernment in this regard, it is prayed that at least an option should no given to the respondents either to withdraw the benefit of switching over to pension from every one or to give it to the petitioners as well, so that the discrimination must go.
42. We are not inclined to accept either of these submissions. The P.F. retirees and pension retirees having not belonged to a class, there is no discrimination. In the matter of expenditure includable in the Annual Financial Statement, this Court has to be loath to pass any order to give any direction, because of the division of functions between the three co-equal organs of the Government under the Constitution".
2331. In the case of Rajbala Srivastava Vs. UOI and Ors (supra), CAT Allahabad Bench has observed as under:-
"19. First of all, we note that KVS is an autonomous body set up by Government of India. It has its own Board of Governors which decides rules and regulations for KVS. Thus, instructions issued by Government of India for its employees are not automatically applicable to KVS. We also note that OM dated 01.05.1987 relied upon by the applicant side itself clearly states that the same is applicable to Civilian Central Government employees. This OM is, therefore, not applicable to KVS employees who are not Central Government employees. In fact, on a specific query raised by this Tribunal during the course of arguments at bar, learned counsel for the applicant very fairly admitted that KVS employees are not Central 8 Government employees. Hence, in our mind, there should be no dispute at all that the OM dated 01.05.1987 is not applicable to KVS staff.
20. We observe that based on this OM, KVS considered the issue in the meeting of Board of Governors held on 31.05.1988 and decided to implement the decision of Government of India mutatis mutandis. Instructions to this effect were issued vide order dated 01.09.1988. As per these instructions, persons joining services on or after 01.01.1986 were to be mandatorily covered under GPF-cum-Pension scheme. However, employees who wished to continue in CPF Scheme were required to exercise option to continue in CPF. In response to this order dated 01.09.1988, the applicant Smt. Rajbala Srivastava opted for CPF by filling form in her own signature on 11.01.1989 to continue in CPF scheme. At this point of time, she was well aware that option once exercised is final. Therefore, she may not now plead social security or other issues as justification for her request for conversion from CPF to GPF-cum- Pension scheme almost 30 years after her option. For all these years, employer's contribution alongwith her own contribution, was getting deposited in her CPF account. Now at the end of her service career, she wishes to deposit all the employer's contribution alongwith her own contribution of over 30 years, only to get benefit of pension. This is not found acceptable or justified.
21. We also note that the applicant cannot plead ignorance of the fact that she was a CPF contributory all along. This fact would have been obvious from pay she was receiving all through these long years when employer's contribution towards CPF alongwith her own contribution was getting deposited in her CPF account. No such contribution is made from the employer in case of the GPF-cum-Pension scheme and hence mere 9 perusal of pay details makes it clear whether the person is covered under CPF or under GPF-cum-Pension scheme.
22. This Court also notes that though the option has been exercised by her way back on 11.01.1989, she very categorically stated in the OA that she never opted for CPF. This stand taken by the applicant is contrary to the facts and amounts to an attempt to mislead the Tribunal with the aim of trying to get benefit of GPF-cum- Pension scheme. We, therefore, find merit in the respondents' side assertion that the applicant has not come with clean hand before this Tribunal. In fact, according to the 24 respondents, the case does not even deserve consideration on merit. Still, we withhold ourselves from rejecting the claim purely on this ground. We, however, take serious and adverse view of this attempt made by the applicant.
23. Coming to the various judgments of the Hon'ble Courts and various benches of this Tribunal, we note that prima-facie it seems that there are judgments both in support of the applicant's side as well as respondents' side. However, if we look little deeper, we note that the case of Johnson P John of the Ernakulam Bench, upheld by Hon'ble Kerela High Court, was challenged before Hon'ble Supreme Court through SLP. However, as services of the applicant therein were terminated by the KVS, the matter was not pursued by the KVS before the Hon'ble Supreme Court. The respondents have categorically stated that the benefit of conversion from CPF to GPF-cum-Pension scheme has not finally been granted to this applicant. The other judgments of Madras Bench and Principal Bench of this Tribunal were based on the judgment of Ernakualam Bench. These judgments are not on merit, but are based on the case of Johnson P John, to whom the benefit of conversion from CPF to GPF- cum-pension scheme has not been finally extended as yet.
24. On the other hand, we note that there is a clear decision of Hon'ble Supreme Court in case of KVS vs. Jaspal Kaur and others where Hon'ble Supreme Court has clearly held that option once exercised for CPF would be final. In fact, this has been done by the Hon'ble Apex Court even in case where original document relating to option could not be produced. In the instant OA, the case is on even firmer ground as the option made by the applicant way back in the year 1989 has been placed on record by the respondents. During arguments, learned counsel for the applicant has never challenged the authenticity of this option. In view of the clear ruling of the Hon'ble Supreme Court holding that option once exercised for CPF is final, we find that the matter already stands settled by the Hon'ble Apex Court.
25. In view of all above, we are of the view that the applicant being KVS employee is not governed by the OM dated 01.05.1987 of Government of India and is instead governed by the instructions issued by KVS on 01.09.1989. The applicant opted for CPF in compliance thereto knowing fully well that option once exercised is final. The option made by her has been placed on record by the respondents. In view of the clear option of the applicant and the ruling of the Hon'ble Supreme Court in the case of KVS vs. Jaspal Kaur and others holding that CPF option once exercised is final and the other facts of this case as given in preceding paragraphs, we find that she is not entitled for conversion from CPF to GPF-cum-Pension scheme.
26. In view of all above, the OA has no merit and is dismissed. There is no order as to costs."
32. In the case of K.V.S. And Ors vs Jaspal Kaur And Ors on 6 June, 2007 (supra), Hon'ble Apex Court has observed as under:-
"6. It is to be noted that in the allotment of revised CPF number in the letter of KVS no. 16-2/CO/89-90/CPF/KVS/PF dated 6.3389, name of respondent no.1 appears 25 at serial no.8 and the revised CPG no. is shown as 1889 in place of the earlier CPG no. CEC 2685. This change has not been denied by respondent no. 1. Additionally, again in letter no. KVS no. 16-2/CO/89-90/CPF/KVS/PF dated 6.7.1989 the name of respondent no.1 appears at serial no. 8 and again existing CPF No. CEC 2685 has been indicated. This letter is significant because there is a note in the service book of the concerned employee in respect of allotted CPC A/C under intimation to them. KVS letter no. F-2/C.O/89-90/CPF/KVS/PF dated 15.7.89 with reference to the earlier letter of 6.7.89 intimated the employees about the change. Again in this letter the name of respondent no. 1 appears at serail no. 8 Most vital document in this controversy is respondent no.1's letter dated 15th March, 1997. In this she has categorically stated that she was contributing towards CPF and her account no. is JRC 1889. This was addressed to the Accounts Officer. This document clearly establishes that respondent no.1 was aware of the change in account number and she herself referred to account number. Her feigned ignorance about the change is absolutely hollow because she herself knows about the changed number.
7. The last pay certificate issued to the respondent no.1 when she handed over charge on 23.5.1992 clearly indicate 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. On the face of these documents the CAT and the High Court should not have held that option was not exercised by the repondent no. 1. Pursuant to this Court's order the original service book of respondent no.1 was produced. Even on 10.6.2005 in the last pay certificate it has been stated that she had opted for the CPF Scheme. Similar is the position in the last pay certificate dated n19.4.2003 and the last pay certificate of 18.1.1982. All these documents establish that respondent no. 1 had exercised the option for the CPF Scheme. Merely because the original documents relating to exercise to option was not produced that should not be a ground to ignore the ample materials produced to show exercise of the option. The CAT and the High Court were not justified in talking a difference view.
33. In the case of Bir Mani Prasad Singh & Anr vs The Union Of India & Ors on 5 April, 2018 (supra), Hon'ble Patna High Court has observed as under:-
"15. Attention of this Court had been drawn to a similar matter which travelled before the Hon'ble Apex Court and similar kind of plea was taken that no option was produced before the Courts to show that they had opted for the CPF Scheme, therefore, by deeming fiction they will be treated to have switched over to the GPF cum Pension Scheme. The Hon'ble Apex Court negated such argument in the case of KVS and others Vs. Jaspal Kaur and another reported in (2007) 6 SCC 13. The Hon'ble Supreme Court after considering the factual position as well as taking note of the GPF Scheme concluded in paragraph 7 of the said decision, which reads as under :26
"7. The last pay certificate issued to Respondent 1 when she handed over charge on 23-5-1992 clearly indicates that CPF subscription 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 a month and allotment of CPF Account No. 1889 was being transferred. On the face of these documents CAT and the High Court should not have held that option was not exercised by Respondent 1. Pursuant to this Court's order the original service-book of Respondent 1 was produced. Even on 10-6-2005 in the last pay certificate it has been Patna High Court CWJC No.4576 of 2018 dt.05-04-2018 stated that she had opted for the CPF Scheme. Similar is the position in the last pay certificate dated 19-4-2003 and the last pay certificate of 18-1-1982. All these documents establish that Respondent 1 had exercised the option for the CPF Scheme.Merely because the original document relating to exercise of option was not produced that should not be a ground to ignore the ample materials produced to show exercise of the option. CAT and the High Court were not justified in taking a different view."
16. Taking cue from the ratio of the decision in the case of Jaspal Kaur (supra) this Court can safely infer that no employee will continue to make contribution to CPF Scheme for more than three decades without any murmur or protest and if at all any kind of representation came to be filed, it was only done in the 21st century sometime in the year 2012.
17. Such kind of wagering is not permissible before a Court of law. The Court will stand for enforcement of legal right of a citizen and not for derivative kind of interpretation which may be given under the scheme whatever be their conduct.
18. With due respect to learned counsel the judgment and decision rendered in the case of S.L. Verma and others (supra) is distinguishable in the glaring facts of the present case, and, therefore, these petitioners cannot derive advantage if they Patna High Court CWJC No.4576 of 2018 dt.05-04-2018 have continued to make contribution of CPF virtually all their life in service.
19. In the given facts, we are not inclined to interfere with the order of the Central Administrative Tribunal, Patna Bench, Patna rendered vide its order dated 09.03.2017 in OA 573 of 2013".
34. In the case of Vinay Shankar Prasad Singh Versus The Union of India (supra), Hon'ble Patna High Court has observed as under:-
"Heard learned counsel for the petitioner and Mr. Kumar Ravish appearing on behalf of the Kendriya Vidyalaya Sangathan.
The present writ petition is directed against the order of the Central Administrative Tribunal, Patna Bench, Patna dated 08.10.2013, passed in O.A. No. 11 of 2013, by 27 which the Original Application of the petitioner for change of his retirement benefit plan from C.P.F. to G.P.F. has not been acceded to.
We have heard learned counsel for the parties, and with their consent, are disposing of this writ petition at this stage itself.
There is no dispute that the petitioner got employment as a teacher in the Kendriya Vidyalaya Sangathan in the year 1974 and ultimately superannuated on 31.08.2005 as Principal Grade-II. Just before the superannuation in the year 2004, he wrote to the authorities that his C.P.F. contribution should be converted to G.P.F., inasmuch as, he was under C.P.F., account and the emoluments received on retirement were not commensurate to the service and the pension, that he would otherwise get. No action was taken and he superannuated and ultimately in 2006 his request was rejected on the ground that in 1988 an option was given to the employees of Kendriya Vidyalaya Sangathan to change their option from C.P.F. to G.P.F. In that itself it was stated that those who make no option they would automatically switch from C.P.F. to G.P.F. From this, we can clearly infer that had the petitioner not given option to continue in C.P.F., he would have automatically migrated to G.P.F., and, hence, would get pension after retirement, but on his own admission in the letter of 2004, is that, he is continuing in C.P.F., which shows that he had consciously opted for C.P.F., but now realizing or apprehending disadvantage wanted change.
Be that as it may, petitioner's own admission being that in 2004, he was continuing in C.P.F. and there being a time limit fixed in the circular of 01.09.1988 giving option to change last date being 28.02.1989, the request for change as made by the petitioner in the year 2004, could not be considered and rightly the Tribunal rejected his application.
We see no reason to interfere with the order of the Tribunal. The Tribunal has committed no error. This writ petition is, accordingly, dismissed".
35. In the case of Smt. Shashi Gupta Vs. UOI (O.A.No. 942/2016), CAT Principal Bench has observed as under:-
"12. Matter has been heard at length. All employees were extended an option on 01.09.1988 that unless they want to continue with the CPF Scheme, they will be deemed covered under GPF-cum-Pension Scheme. The applicant's plea is that she has not exercised any option for CPF scheme at the relevant point of time, being not aware of it in the first place, and as such she is deemed to have been covered under GPF-cum-Pension Scheme. This plea is not acceptable in view of other corroborating evidence of CPF deductions being made from her monthly salary which had continued all along till her retirement. She had herself also indicated the CPF number etc. in her retirement papers. In the case cited by the applicant in respect of R.S.Giri (supra), no ratio can be drawn (para 5 supra).
13. In the case of S.Suubiah (supra), who was working under Department of Atomic Energy, the relevant circular for employees to exercise option was issued by DoP&T on 01.05.1987 with the last date being 30.09.1987. Thereafter, this cut off date was extended till 30.12.1987 by Department of Atomic Energy vide circular dated 28 18.09.1987. The applicant did not exercise option to continue in CPF Scheme within original cut off date. In this case the option to continue in CPF Scheme was exercised in this extended period. It was subsequent to exercise of this option that the employee wanted to be covered under GPF-cum-Pension Scheme. The Hon'ble High Court had quoted a judgment by Hon'ble Apex Court in Union of India & anr. Vs. S.L.Verma & ors. dated 28.11.2006 and observed that no seriousness was attached by the Department of Atomic Energy to the said cut off date 30.09.1987. Further, as per the original scheme, the employees, who were covered under CPF Scheme were given an option of deemed coverage under Pension Scheme unless they had exercised the option to continue with CPF Scheme in time. The Hon'ble Court observed that "the said option given during the time of extended period has no sanctity in law". The Hon'ble High Court also observed that 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 original 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."
In the instant case, there was no such extension. Moreover applicants continued under CPF Scheme for almost 23 years without any protest. Therefore, this case cannot be considered similar to the instant case and no ratio can be withdrawn.
14. In the case of B.C.Tyagi (supra), the employee was earlier appointed as TGT under KV on 06.11.1984 when he was covered under CPF Scheme. Thereafter against a fresh recruitment notice for PGT, the employee was appointed on 07.02.1992 when the Pension Scheme had already come into force for all new employees, however, the respondents were still treating Shri B.C.Tyagi under the old CPF Scheme which was not upheld and it was directed that Pension Scheme shall be applicable as he was a fresh appointee as a PGT w.e.f. 07.02.1992. Accordingly, this case is also not similar to the instant case and no ratio can be drawn.
15. In view of the foregoing, the case of applicant that she be deemed to be covered under GPF-cum-Pension Scheme, is not acceptable and specially so in view of availability of other corroborating evidence in the form of monthly deductions for CPF for subsequent 27 years right till her superannuation, and the case having been already settled once the applicant retired from service on 31.03.2016 on attaining the age of 60 years. In the event, MA as well as OA are dismissed being devoid of merit. No order as to costs."
36. In the instant case applicants being KVS employee are not governed by the O.M. dated 1.5.1987 of Govt. of India and are governed by the instructions issued by KVS on 1.9.1989. Some of the applicants opted for CPF in compliance thereto knowing fully well that option once 29 exercised is final. In view of the option of the applicants and the ruling of the Hon'ble Supreme Court in the case of KVS Vs. Jaspal Kaur and others holding that CPF option once exercised is final, we find that applicants who had submitted option are not entitled for conversion from CPF to GPF-cum Pension scheme. In case of applicants whose option form are not traceable are concerned, it is admitted fact that applicants have never made any representation raising protest or objection for counting them under CPF scheme. Their contribution were deducted from salary for the years together and they were also aware of contribution made on behalf of the Management and the annual amount sheet which the respondents used to supply regularly, on the basis of which applicants had submitted their income tax return for a long period. Without raising any objections, at the time of retirement making representation that they are interested to opt pension scheme of 1988 alone at this belated stage is not at all maintainable. The plea of the applicant that if no option is received by the cutoff date, the employees should be deemed to have come over the Pension Scheme is also not tenable in the eyes of law because all the applicants of these OAs are literate person and they must have known the rules and regulations of the department. If they have not opted for continuance of CPF as per O.M. dated 1.9.1988, when the CPF contribution was being made through the monthly pay bills and they have issued Form 16 duly mentioning the CPF deduction, they must have objected the same but they kept mum for long time. The conduct of the applicants keeping quite for years together shows that there is no justification in their claim for conversion of pension scheme of 1988. Applicants who were aware of new CPF account number and on their retirement they were also paid the CPF amount then after retirement after a gap of more than 20 years, they cannot be permitted to exercise their option and it is not open to them to say that they were not aware of those things.
37. As far as case laws relied upon by the learned counsel for the parties is different views have been taken by the various courts. However, in the case of K.V.S. Vs. Jaspal Kaur and others (supra), Hon'ble Apex Court has clearly held that option once exercised for CPF would be final. In fact, this has been done by the Hon'ble Apex Court even in cases where original document relating to option could not be produced. The similar condition has also been given in para 3.6 of the Office 30 Memorandum issued by the Ministry of Personnel, Public Grievances and Pension dated 1st May, 1987 and in para 3.6 of O.M. dated 1.9.1988 issued by the KVS. In view of the clear ruling of the Hon'ble Apex Court holding that option once exercised for CPF is final, we find that the matter has already been settled by the Hon'ble Apex Court. Accordingly, we do not find any merit in the O.A and O.A deserves to be dismissed.
38. Accordingly, O.A is dismissed. No order as to costs. All associated MAs are disposed of.
(Dr. Sanjiv Kumar) (Justice Om Prakash -VII)
Member (A) Member (J)
Manish/-