HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
AND
HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
WRIT PETITION No. 10812 of 2018
ORDER: (Per the Hon'ble Sri Justice Abhinand Kumar Shavili)
This writ petition is filed by the petitioner under Article
226 of the Constitution of India seeking a writ of certiorari by
calling for the records relating to and connected with the
order of the 6th respondent as made in OA.No.1271 of 2013
dated 04.07.2014 rejecting petitioner claim to extend all the benefits under Pension Scheme with all consequential benefits and arrears making necessary adjustments while implementing the Office Memorandum dated 01.09.1998 in OM No.152-1/79-80/KVS/Budget/Part.II, and quash the same by holding the same as being illegal, arbitrary and is in negation of the judgment of the various High Courts as well treating the petitioner unequal among the equals in violation of Articles 14 & 16 of the Constitution of India with a direction to the respondents 1 to 5 to extend all the benefits 2 AKS,J & RRN,J W.P.No.10812 of 2018 under Pension Scheme with all consequential benefits with arrears making necessary adjustments regarding if any already paid to the petitioner and also collecting if any excess amount is paid to the applicant.
2. Heard Sri Rama Rao, learned counsel for the petitioner and Sri Ajay Kumar Kulkarni, learned Standing Counsel appearing for the respondents.
3. Learned counsel for the petitioner contended that petitioner was initially appointed as a primary teacher in Kendriya Vidyalaya Sangathan (for short "K.V.S") after rendering considerable length of service, petitioner retired from service on 30.11.2012 attaining an age of superannuation. The grievance of petitioner is that the respondents have launched a pension scheme vide Office Memorandum dated 01.09.1988 with effect from 01.09.1988 as the petitioner could not opt under the said pension 3 AKS,J & RRN,J W.P.No.10812 of 2018 scheme, the petitioner was continued under the Contributory Provident Fund scheme, subsequently, petitioner submitted a detailed representation to the respondents on 16.11.2012, that is just few days before her retirement, and also submitted another representation on 24.09.2013, requesting the respondents to permit the petitioner to opt for the pension scheme and accordingly pay pension and pensionary benefits. When the said representations of the petitioner was not considered by the respondents, petitioner approached the Central Administrative Tribunal, Hyderabad (for brevity, 'the Tribunal') by filing OA.No.1271 of 2013 and the Tribunal vide order dated 04.07.2014 was pleased to dismiss the OA without appreciating any of the contentions raised by the petitioner.
4. Learned counsel for the petitioner has drawn the attention of this Court to a order rendered by the Madras 4 AKS,J & RRN,J W.P.No.10812 of 2018 High Court i.e., WP.Nos.28092 to 28094 of 2015 dated 05.01.2017, wherein the Madras High Court was dealing with a writ petition arising out of order passed by the Madras Bench in OA.No.1769 of 2013, dated 31.03.2015, and the Tribunal was pleased to permit the employees who were under Contributory Provident Fund (for short, "CPF") to come to the pension scheme, even though the employees have not opted for the said pension scheme.
5. Learned counsel for the petitioner has further drawn the attention of this Court to Para 13 of the said judgment of the Madras High Court and contented that when pension is more beneficial to an employee, the employer must permit the employee to come under pension scheme, and the Madras High Court has also found by extending pension scheme to one set of employees and denying the said pension scheme to another set of employees only on the ground that employees 5 AKS,J & RRN,J W.P.No.10812 of 2018 have not opted to come under pension scheme and dismissed the writ petition preferred by the Union of India and therefore contended that, by applying the same analogy, the case of the petitioner herein also deserves to be considered by permitting the petitioner to opt for pension scheme from CPF scheme, but, the Tribunal has dismissed the case without appreciating any of the contentions raised by the petitioner, and therefore, prayed this Court that appropriate orders be passed in the writ petition by directing the respondents to consider the case of the petitioner in terms of the orders passed by the Madras High Court in WP.Nos.28092 to 28094 of 2015 dated 05.01.2017 in accordance with law.
6. On the other hand, learned Standing Counsel for the respondents contended that petitioner never exercised her option to come under pension scheme and petitioner had remained in CPF scheme and the Tribunal was justified in 6 AKS,J & RRN,J W.P.No.10812 of 2018 dismissing the OA as petitioner had never exercised any option to come under pension scheme, therefore, there are no merits in the writ petition and the same is liable to be dismissed.
7. This Court having considered the rival submissions made by both parties, is of the considered view, that similar issue fell for consideration before the Madras High Court and the Madras High Court was pleased to dismiss the Writ Petition i.e., WP.Nos.28092 to 28094 of 2015 dated 05.01.2017, and confirmed the orders passed by the Tribunal in OA.No.1769 of 2013 dated 31.03.2015, and the Madras High Court came to a conclusion that an employee can opt for a pension scheme if it is more beneficial to him by following the said judgment of Madras High Court.
8. This Court is of the considered view that the present writ petition can be disposed of by directing the respondents 7 AKS,J & RRN,J W.P.No.10812 of 2018 to consider the representation submitted by the petitioner on 16.11.2012 and 04.05.2013 and consider the same and pass appropriate orders by duly taking into account the judgment rendered by the Hon'ble High Court of Madras in WP.Nos.28092 to 28094 of 2015 dated 05.01.2017 and pass appropriate orders in accordance with law, within a reasonable time preferably within a period of two (2) months from the date of receipt of copy of this order.
9. With these observations, the writ petition is disposed of. No costs.
10. Miscellaneous applications pending, if any, shall stand closed.
_______________________ ABHINAND KUMAR SHAVILI, J __________________________ NAMAVARAPU RAJESHWAR RAO, J Date: 05.12.2022 8 AKS,J & RRN,J W.P.No.10812 of 2018 Pss/ssm