Kerala High Court
Madhusoodan V vs Union Of India on 25 January, 2021
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942
WP(C).No.40062 OF 2018(G)
PETITIONER/S:
1 MADHUSOODAN V.,
AGED 48 YEARS
S/O LATE K.V. RAJAN, ADMINISTRATIVE OFFICER, INDIAN INSTITUTE OF
MANAGEMENT, KOZHIKODE, KUNNAMANGALAM, KOZIKODE-673570.
2 T. MOHANANN,
AGED 62 YEARS
S/O LATE NARAYANA MENON, ADMINISTRATIVE OFFICER (RETIRED),
INDIAN INSTITUTE OF MANAGEMENT, KOZHIKODE, KUNNAMANGALAM,
KOZIKODE-673570.
3 RAJEESH M.P.,
AGED 41 YEARS
S/O LATE MADHAVAN NAIR, ASSISTANT ENGINEER(CIVIL), INDIAN
INSTITUTE OF MANAGEMENT, KOZHIKODE, KUNNAMANGALAM, KOZIKODE-
673570.
4 BOSE K.T.,
AGED 49 YEARS
S/O K.C. THOMAS, ASSISTANT EXECUTIVE ENGINEER, (ELECTRICAL),
INDIAN INSTITUTE OF MANAGEMENT, KOZHIKODE, KUNNAMANGALAM,
KOZIKODE-673570.
BY ADVS.
SRI.C.A.JOJO
SRI.JACOB CHACKO
SRI.MATHEWS JOSEPH
RESPONDENT/S:
1 UNION OF INDIA,
REPRESENTED BY THE SECRETARY TO MINISTRY OF HUMAN RESOURCE
DEVELOPMENT (MHRD), NEW DELHI-100001.
2 INDIAN INSTITUTE OF MANAGEMENT, KOZIKODE(IIMK),.
REPRESENTED BY ITS DIRECTOR, INDIAN INSTITUTE OF MANAGEMENT
KOZHIKODE,IIMK CAMPUM P.O.,
KOZHIKODE-673570.
R1 BY ADV. SRI.K.ARJUN VENUGOPAL
R2 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR
R2 BY ADV. SRI.K.JOHN MATHAI
R2 BY ADV. SRI.JOSON MANAVALAN
R2 BY ADV. SRI.KURYAN THOMAS
R2 BY ADV. SRI.PAULOSE C. ABRAHAM
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-01-2021, THE
COURT ON 25-01-2021 DELIVERED THE FOLLOWING:
WP(C).No.40062 OF 2018(G)
2
JUDGMENT
Dated this the 25th day of January 2021 Petitioners, 4 in number, through the instant writ petition have sought the intervention of this Court for issuance of declaration to the effect that they are entitled for benefit of GPF-cum-Pension Scheme in the light of memorandum of Association of Indian Institute of Management Kozhikode (IIMK), Ext.P1 and relevant Bill No.20 of 2017 promulgated on 25.1.2017 Ext.P2 with a further prayer to declare the decision taken as per Ext.P4 Circular discriminating the petitioners from similarly situated employees.
2. The sum and substance of the averments in the petition are that IIMK was registered on 21.8.1996 under Societies Act, 1860 as a Self Financing autonomous institution under the supervision of 1st respondent, Central Government. Its memorandum of Association Rules enable the institutions to create Faculty and Non Faculty Posts in the Institute and to make such appointments thereto as are WP(C).No.40062 OF 2018(G) 3 necessary within the overall ratio for Students-Faculty and Non faculty, to make Rules and Bye-laws for the conduct of the affairs of the institute ,to meet the expenses of the Institute including expenses incurred in the exercise of its power and discharge of the functions out of the Fund. Government of India passed a bill giving more autonomous power to the institutions in the country on 31.12.2017. On cursory glance of the bill presented, all rights and debts and other liabilities of every existing Institute would mutatis mutandis be transferred to the corresponding institutions and every person employed before the commencement shall hold the office or service in the corresponding institutions, with the same tenure, at the same remuneration, upon the same terms and conditions and with the same rights and privileges as to pension, leave, gratuity, provident fund shall continue to do so till the employment is terminated. The bill also empowered the Board of Governors of each institution to take decisions on question of policy relating to administration and working of the institution much less the constitution of pension, insurance and provident funds for the benefit of the academic, administrative, technical and WP(C).No.40062 OF 2018(G) 4 other staff. On 14th May 1997 vide Ext.P3, Indian Institute of Management, Calicut invited application for Administrative position with a note that the qualifications for the positions would be relaxed at the discretion of the institution.
3. The petitioners are the employees of the 2nd respondent (IIMK) working on different ranks for the last twenty (20) years whereas the 2nd petitioner retired from service. The aforementioned bill came into force with effect from 31.1.2018. Some of the petitioners retired and in dilemma of not given the benefit of the GPF scheme but are covered under the National Pension Scheme as many other similar institution have already permitted the employees to convert from CPF to GPF. To highlight their predicament and detriment, counsel for the petitioner has taken the attention of this Court to various documents.
4. The Board of Directors of IIMK vide circular dated 24.10.2000, Ext.P4 had in principle approved to introduce GPF-cum-Pension Scheme for the employee of the institution and the matter was referred to the Government of India for approval. The Ministry of Human Resources and WP(C).No.40062 OF 2018(G) 5 Development agreed to introduce the scheme in respect of only those employees who were, prior to joining the institution, working in organizations where the scheme was in operation and had opted for the same. Such employees were requested to furnish their willingness before 10.11.2000 with a further condition that the scheme would be applicable subject to the undertaking of the previous employer to transfer the pro-rata pensionary benefits.
5. The extract of the minutes of the 124 th meeting of the Board held on 18.8.2008, the institution noticed that there should not be hitch in allowing the employees to switch over from CPF to GPF and before switching over to the Pension Scheme, they should refund such retirement benefits, if any, paid to them under the CPF scheme, as determined by the institution.
6. The Ministry of Human Resource Development vide communication dated 10.7.2009 considered the proposal in consultation with the Ministry of Finance, Department allowing GPF-cum-pension scheme to the employees of five Inter University Centers namely IUAC New Delhi, CEC New Delhi, NAAC Bangalore, INFLIBNET WP(C).No.40062 OF 2018(G) 6 Ahmedabad and UGC-DAE CSR Indore in respect of the employees who had joined prior to 1st January, 2004 and opted for the same. The petitioners, since, were discriminated as they also joined before 2004 made a detailed representation but did not yield any result compelling them to approach this Court vide W.P.(C) No.11093 of 2014. This Court vide judgment dated 23.2.2015, Ext.P11 disposed of the writ petition with a direction to the respondent to decide the representation as expeditiously as possible within a period of four months. It is contended that till filing of the writ petition no such decision has been taken. It is only by way of the counter for the first time, the decision Ext.R2(f) dated 23.8.2019 has been attached rejecting the representation which sans not only reasons but any application of mind. It is highly injustice on the part of the respondent in not permitting petitioners to be part of any pension scheme and even though they joined prior to 1 st January 2004 as their tenure of appointment was between 1997-2002. During the pendency of the writ petition, the petitioners came across certain documents ie., Ext.P19 dated 17.2.2020 an Office WP(C).No.40062 OF 2018(G) 7 Memorandum issued by the Govt. of India Department of Pension, wherein the Central Government employees who were covered under Central Civil Services (Pension) Rules, 1972 have been accorded option to convert into GPF scheme, Ext.P20, the minutes of the 124 th meeting of the Board of Governors of IIM Bangalore held on 18.8.2008, whereby it is mentioned that there should be no hitch in allowing the employees to switch over from CPF to GPF. Since the employees of the respondent are governed by the Central Government Rules and the benefit has been extended to many other institution, the petitioners are also entitled to avail the benefit and urged this Court for allowing the writ petition.
7. On the contrary, learned counsel appearing on behalf of the 2nd respondent opposed the aforementioned prayer by submitting that no doubt Section 11(q) of the IIM Act empowers the Board of Governors to specify by regulations ie., constitution of pension, insurance and provident fund but in 2019, IIMK formulated regulations 2019, which was forwarded to the Ministry of Human Resource Development. The aforementioned regulations WP(C).No.40062 OF 2018(G) 8 were called as Indian Institute of Management, Kozhikode Regulations - 2019. Pursuant to Ext.R2(b), the minutes of the meeting of Directors of IIMs held on 19.6.2000, the 2 nd respondent Institute circulated Ext.P4 Circular requesting those employees who were prior to joining the Institute, as on 1.1.2004, working in organizations where the GPF-cum Pension scheme was in operation to submit their willingness to be covered under the scheme before 10.11.2000.
8. The employees of IIMK raised a grievance of discriminatory treatment in the matter of extending the benefit of GPF cum pension had approached this Court vide W.P.(C) No.12907 of 2005 (Anil Kumar Pathiyath and Others v. Union of India and Others) . This Court vide judgment dated 21.4.2006, Ext.R2(c) dismissed the writ petition. The the question with regard to bring the petitioners within the GPF-cum-Pension Scheme as sought was a matter within the domain of the Executive Government. The court's power for judicial review is not a power to review the decision of the executive but only to review the decision making process. Vide R2(d) dated 30.6.2009, Ministry of Finance, Department of Expenditure WP(C).No.40062 OF 2018(G) 9 came out with a office memorandum on the subject of transition from contributory Provident Fund to Defined Contribution Pension Scheme for the employees of autonomous bodies. The employees recruited prior to 1.1.2004 were given an option either to remain in the existing CPF scheme or move over to the NPS. As per the instructions/clarification issued by the first respondent regarding switch over from CPF to old GPF Cum Pension scheme R2(e), the petitioners who entered into service on or before 31 December 2003 and governed by the CPF Scheme, are not eligible for switch over to the GPF-cum- Pension Scheme. There is no challenge to the order dated 23.8.2019 issued by the 1st respondent, Ext.R2(f) and urged this Court for dismissal of the writ petition.
9. I have heard the learned counsel for the parties and appraised the paper book. In view of the Indian Institute of Management Bill, 2017, Board of Governors have been given power to constitute the scheme with regard to pension etc. The relevant portion of Ext.P4 circular of IIMK reads as follows:
The Board of Governors of the Institute had approved WP(C).No.40062 OF 2018(G) 10 in principle to introduce GPF-cum-Pension Scheme for the employees of the Institute and the matter has been referred to the Government of India for approval. The MHRD has agreed to introduce the scheme in respect of those employees who were, prior to joining the Institute, working in organizations where the scheme was in operation and had opted for the same. Such employees are requested to furnish their willingness to be covered under the scheme to Administration before 10.11.2000. The applicability of the scheme to such employees will be subject to the previous employer undertaking to transfer the pro-rata pensionary benefits of such employees to the institute within a reasonable time. The employee (s) concerned should forward their application for transfer of pensionary benefits to their previous employees through the institute. The option once exercised shall be final. On accepting the pension benefits from the previous employer, the service rendered by the employee in the previous organization shall be counted for pensionary benefits along with the service in the institute and the final pension will be based on the combined service. The GPF contribution transferred from the previous employment shall be kept in IIM's GPF account. If the employee concerned is already a member of the IIMK GPF, the balance in their GPF account representing their own contribution together with interest accrued thereon shall be transferred to the new GPF account and the amount of employer's contribution together with interest shall be forfeited to IIM.
It is in the background of the aforementioned circular, petitioners are affected as they have been discriminated of not giving the benefit of GPF as it has been only confined to those employees who were, prior to joining the institution, working in the organization entitled to the said benefits. It is also not in doubt that, University Grants Commission had granted the benefit of implementation of the scheme of GPF cum pension scheme vide communication dated 3.8.2009, WP(C).No.40062 OF 2018(G) 11 Ext.P8 to certain institutions. The relevant portion of the same reads as under:
I am directed to enclose herewith a letter received from Ministry of Human Resource Development, Dept. of Education, Government of India regarding the implementation of GPF-cum-Pension scheme to five Inter University Centres, namely, IUAC, New Delhi; CEC, New Delhi; NAAC, Bangalore; INFLIBNET, Ahmedabad and UGC-DAE CSR, Indore who have joined prior to 1 st January, 2004 and had opted for the same.
10. Court cannot substitute the decision of the executive but only can interfere in the Rule making process, if pointed out to be suffering from prima facie errors or erroneous interpretation. It is not the case herein, where the respondents intentionally omitted or erred in not implementing the GPF scheme to the petitioners and accorded benefit only the one who had joined prior to 1st January 2004. The respondents have primarily relied upon the judgment of the Single Bench in Anil Kumar Pathiyath (supra). For the sake of brevity, Para 11 and 12 of the judgment reads thus:
11. I do notice that there is some genuineness in the grievance voiced by the writ petitioners. In fact, even the tenor of the counter affidavit submitted by the 2 respondent and the submissions of Mr Jayakumar would show that even the 2 respondent shares the above vow of mine. The counter affidavit on behalf of the 1" respondent is submitted by the Under Secretary in the Human Resources Ministry. That counter WP(C).No.40062 OF 2018(G) 12 affidavit will show that the Human Resources Ministry also persuaded the Ministry of Finance their level best to agree to the request of the petitioners that they be brought under the GPF-cum-Pension Scheme. But in spite of all these, I do not think I will be justified in compelling the 1 st respondent to bring the petitioners within the GPF-cum-Pension Scheme as sought for by them and in granting the declaration sought for by them. As noticed by the Division Bench of the Delhi High Court in its Judgment in LPA.559 of 2004, courts are expected to maintain judicial rest and not take over the functions of the executive or the legislature. Whether the writ petitioners should be brought within the purview of the GPF-cum-Pension Scheme was a matter within the domain of the executive Government. The court's power for judicial review is not a power to review the decision of the executive but only to review the decision making process. A reading of the counter affidavit of the 1" respondent will show that it was not in a casual manner that the respondent took the decision to turn down the petitioners request for inclusion of them under the GPF-cum-Pension Scheme. The issue was considered at various levels including the highest executive levels. There has been considerable discussions and deliberations over the issue. The matter was essential one of policy for the respondent and the 1" respondent has decided that Indulon of the petitioners under the GPF-cum-Pension Scheme will not be feasible on cn relevant considerations including considerations of finance. I cannot say that the decision of the 1 respondent is per se illegal or is shockingly arbitrary to noticed by the Supreme Court in Keshavananda Bharati v. State of Kerala (AIR 1973 SC 1461), the courts cannot be oblivious of the practical needs of the Government. it is seen that similar requests by employees of NITS Jalandhar, Kurukshetra and Silchar were also turned down by the Finance Ministry on the same reason. It cannot be as if there has been hostile discrimination against the petitioners. I am in respectful agreement with all the observations of the Division Bench of the Delhi High Court in the judgment in LPA 559 of 2004 and I hold, gauging by the principles laid down in that decision, that there is no warrant for interfering with the decision of the 1 st respondent not to include the petitioners under the GPF-cum Pension Scheme. The counter affidavit will reveal that the 1 respondent has been mindful of the problems of the petitioners and alternative schemes like restructured defined contributory pension scheme for new entrants has been proposed and is under serious consideration. The 1st respondent has suggested that the employees are free to Join the pension scheme Introduced by the Ministry of Labour or can even work out reliefs under the Annuity Scheme of the LIC. WP(C).No.40062 OF 2018(G) 13
12. The Division Bench in LPA.559 of 2004, it is noticed, placed reliance on the principles emerging from the various decislons of the Supreme court such as Union of India v. D.N.Aggarwal (AIR 1992 SC 96) and Indian Railway Construction Co.Ltd. v. Ajay Kumar (AIR 2003 SC 1843). Those principles will apply in the instant case also. An administrativo decision taken by the executive authority keeping in view the financial and other implications of the Issue is not to be interfered with lightly. In any event, the materials on record do not persuade me to invoke the discretionary powers under Article 226 of the Constitution as to interfere with the decision already taken by the 1 respondent The result is that the Writ Petition fails and the same will stand dismissed.
11. The ratio culled out in the judgment leaves no manner of doubt that the Court cannot interfere into the administrative decision of executive authority, keeping in view the financial and other implications. Similar is the case herein, where the 2nd respondent had opted their own regulations 2019 and given approval by the Government Ministry of Human Resource and Development. But I cannot remain oblivious of the fact that IIM Bangalore had in 2008 gave an option for the benefit of GPF cum pension scheme all its employees, who were appointed on or before 1.1.2004. Though it has not been pleaded in the writ petition but placed on record by way of an affidavit dated 12.11.2020. The relevant portion of the same reads thus:
8. (5) Representation from employees for switch over from CPF to GPF 8.1Prof. Trilochan Sastry informed that as advised by the Board, the Director had appointed a sub-committee to look WP(C).No.40062 OF 2018(G) 14 into the issue of permitting some employees to switch over from CPF to the Triple Benefit Scheme, also known as GPF-
cum-pension-cum-gratuity scheme. The committee comprised Professors M.S Narasimhan, D. Krishna Sundar and Trilochan Sastry. He said that a total of about 28 (current and retired) employees were eligible to opt for this scheme.
8.2 Prof. Sastry mentioned that the sub-committee had examined all the relevant documents available at the Institute, and had also compiled information about other similar institutes that had permitted belated switchover from CPF to GPF. There was clear precedence as seen in the case of some IITs/IIMs, that could have been replicated at IIMB also. The committee had recommended that a one- time last chance may be given by the Board to the eligible employees who wanted to switchover from CPF to GPF. 8.3 In response to a query from Shri Thakur about the source of funds for payment of pension to retired employees, it was clarired that a separate Terminal Benefit Fund had been earmarked for taking care of the pension liability. This fund was created and operated unsing Institute's own resources and as such, there was no financial implication for the Government. Taking into consideration the clarification provided about the source of pension funds, Shri Thakur opined that there should be no hitch in allowing the employees to switch over from CPF to GPF. He, however, desired that the Institute, while allowing this provision to its eligible employees, may keep the Government informed about the declension of the Board.
12. Keeping in view the ratio culled out in the judgment in Anil Kumar Pathiyath (supra), this Court cannot interdict the decision making process of the 2 nd respondent, in view of the financial implications. It is the prerogative of each and every institution being an autonomous body ie., unaided, to adopt own procedure and regulations for efficient and smooth functioning. There WP(C).No.40062 OF 2018(G) 15 would have been a force in the argument of the learned counsel had the 2nd respondent extended the benefit to the employees who were not enjoying the benefit of GPF in the early organization but nothing has been pointed out to bring the case under Article 14 of the constitution of India.
For the reason aforementioned, I do not find any force in the submission of the learned counsel for the petitioner. Writ petition is devoid of the merits and is accordingly dismissed.
Sd/-
AMIT RAWAL
sab JUDGE
WP(C).No.40062 OF 2018(G)
16
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF RELEVANT PAGES OF
MEMORANDUM OF ASSOCIATION (MOV) OF THE
IIM KOZHIKODE
EXHIBIT P2 A TRUE COPY OF THE RELEVANT PAGES OF IIM
BILL NO.20 OF 2017 DATED 25.1.2017
SUBMITTED IN THE PARLIAMENT BY THE
HON'BLE MINISTER FOR THE 1ST RESPONDENT EXHIBIT P3 A TRUE COPY OF THE ADVERTISEMENT RELEASED BY THE 2ND RESPONDENT IN THE YEAR 1997 THROUGH TIMES OF INDIAN DAILY DATED 14.5.1997 EXHIBIT P4 A TRUE EXTRACT COPY OF THE CIRCULAR DATED 24.10.2000 ISSUED BY THE 2ND RESPONDENT EXHIBIT P5 A TRUE COPY OF THE LETTER FROM THE OFFICE OF THE MINISTRY OF HUMAN RESOURCE DEVELOPMENT DEPARTMENT OF SECONDARY EDUCATION AND HIGHER EDUCATION TECHNICAL SECTION-V TO ALL THE DIRECTORS OF THE IIMS AS F. NO.7-5/2000-TS DATED 12.7.2000 EXHIBIT P6 A TRUE COPY OF EXTRACT FROM THE MINUTES OF THE 124TH MEETING OF THE BOARD OF GOVERNORS (BOG) OF IIMB HELD ON 18TH AUGUST 2008 UNDER AGENDA 8.(5) EXHIBIT P7 A TRUE COPY OF THE LETTER ISSUED BY DIRECTOR (HE) MINISTRY OF HUMAN RESOURCE DEVELOPMENT DEPARTMENT OF HIGHER EDUCATION DATED 10.7.2009 EXHIBIT P8 A TRUE COPY OF THE LETTER F.N.30- 2/90(IUC) ISSUED BY THE EDUCATION OFFICER OF THE UNIVERSITY GRANTS COMMISSION BAHADUR SHAH ZAFAR MARG, NEW DELHI DATED 3.8.2009 IMPLEMENTING GPF CUM PENSION SCHEME TO INFLIBNET AHMEDABAD WP(C).No.40062 OF 2018(G) 17 EXHIBIT P9 A TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF PUBJAB AND HARIYANA IN CWP NO.4262 OF 2006(O AND M) DATED 26.3.2012 EXHIBIT P10 A TRUE COPY OF THE LETTER F. NO.26- 9/2005-TS.III DATED 11.2.2013 EXHIBIT P11 A TRUE COPY OF THE JUDGMENT IN WPC.11093/2014 DATED 23.2.2015 EXHIBIT P12 A TRUE COPY OF REPORT SUBMITTED BY LIC DATED 31.3.2015 EXHIBIT P13 A TRUE COPY OF THE STATEMENT SHOWING THE DETAILS OF PENSION FUND INVESTMENTS MADE IN SBI OF INDIA 8% SAVINGS (TAXABLE) BONDS 2003 ON 7.12.2010 BY RECEIPT NO.TBX242 WITHA MATURITY DATED OF 8.12.2016 BY THE 2ND RESPONDENT DATED 31.3.2014 EXHIBIT P14 A TRUE COPY OF THE MINUTES OF THE MEETING OF BOARD OF GOVERNORS HELD ON 4.4.2015 WHICH DISCUSSED ON THE CREATION OF PENSION FUND AND COMMUNICATED TO ALL THE 18 EMPLOYEES BY MAIL EXHIBIT P15 A TRUE COPY OF THE ORDER OF THIS HON'BLE COURT IN IA.128/2018 DATED 15.3.2018 EXHIBIT P16 A TRUE COPY OF THE FINAL ORDER OF THIS HON'BLE COURT IN IA.138/2018 DATED 2.8.2018 EXHIBIT P17 THE RELEVANT PART OF THE INFORMATION COLLECTED UNDER RTI ACT AS ANNEXURE 2 BY THE PETITIONERS EXHIBIT P18 A TRUE COPY OF THE SUBMISSION IN THE LOK SABHA TAKEN FROM THE WEBSITE OF THE LOK SABHA DATED 3TH JANUARY 2018 EXHIBIT P19 A TRUE COPY OF THE OFFICE MEMORANDUM NO.57/04/2019-P&PW(B) ISSUED BY THE GOVT. OF INDIA DEPARTMENT OF PENSION DATED 17.2.2020 EXHIBIT P20 A TRUE COPY OF THE MINUTES OF THE 124TH MEETING OF THE BOARD OF GOVERNORS OF IIM BANGALORE HELD ON 18.8.2008 WP(C).No.40062 OF 2018(G) 18 EXHIBIT P21 A TRUE COPY OF THE CIRCULAR BY FA & CAO OF THE 2ND RESPONDENT DATED 20.2.2004 RESPONDENT'S/S EXHIBITS:
EXHIBIT R2 A A COPY OF THE RELEVANT EXTRACT FROM THE REGULATIONS FORMULATED BY THE 2ND RESPONDENT INSTITUTE EXHIBIT R2 B TRUE COPY OF THE MINUTES OF THE MEETING OF DIRECTORS OF IIMS HELD ON 19-6-2000 FORWARDED BY THE 1ST RESPONDENT VIDE ITS LETTER DATED 12/7/2000 EXHIBIT R2 C A TRUE COPY OF THE JUDGMENT DATED 21/4/2006 IN WPC 12907/2005 EXHIBIT R2 D TRUE COPY OF THE OFFICE MEMORANDUM DATED 30/6/2009 OF THE 1ST RESPONDENT