Bombay High Court
Mani K.Madala And 15 Ors vs The Union Of India And Anr on 1 April, 2024
Author: Nitin Jamdar
Bench: Nitin Jamdar, M.M. Sathaye
2024:BHC-OS:5432-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2960 OF 2021
1. Dr. Mani K. Madala, aged 70,
Indian Citizen inhabitant of Mumbai,
Retd. Professor at NITIE, Mumbai,
R/o. B-201, Shanti Complex,
Saki Vihar Road, Andheri (E),
Mumbai 400 072.
2. Bhagyashree Korday, aged 61,
Indian Citizen inhabitant of Mumbai
Retd. Library and Information Officer,
at NITIE, Mumbai, R/o. F- 201,
Shree Sankeshwar Nagar,
Shiv Vallabh Road, Near Ashok Van,
Dahisar (E), Mumbai 400 068.
3. Dr. Dinesh Hegde, aged 73,
Indian Citizen inhabitant of Mumbai,
Retd. Professor at NITIE, Mumbai,
R/o. C-703, Om Shanti CHS,
Off Sakivihar Road, Tunga,
Powai, Mumbai 400 072.
4. Dr. Shalini Shivaji Deshmukh, age 73,
Indian Citizen inhabitant of Mumbai,
Retired as Medical Officer from NITIE,
Mumbai. R/o. A / 2004, Shimmering,
Heights, Powai, Vihar Complex,
Mumbai 400 076.
5. Harshad Kamalakar Sapre, aged 59,
Indian Citizen inhabitant of Mumbai,
now retired from NITIE under VRS,
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Video Cameraman, Mumbai,
R/o. 3, Narayan Niwas, Mamladar Wadi,
Malad West, Mumbai 400 064.
6. Dr. Narayanasamy Sambandam, aged 75
Indian Citizen inhabitant of Mumbai,
Retd. Professor at NITIE Mumbai,
R/o. 504, Glencroft Cliff Avenue,
Hiranandini Gardens, Powai,
Mumbai 400 076.
7. Dinesh Kumar Srivastava, age 58,
Indian Citizen inhabitant of Mumbai,
Professor at NITIE Mumbai,
R/o. Flat No. 19, Narmada Building,
Nitie Campus, Vihar Lake Road,
Powai, Mumbai -400 087.
8. Shreekumar Karunakaran Nair, age 63,
Indian Citizen inhabitant of Mumbai,
Professor at NITIE Mumbai,
R/o. Flat No. 17, Narmada Building,
Nitie Campus, Vihar Lake Road,
Powai, Mumbai - 400 087.
9. Lakshmikanthan Ganapathy, age 59,
Indian Citizen inhabitant of Mumbai,
Professor at NITIE Mumbai,
R/o. 26, Navsyam Sadan Pestom,
Sagar Road, Chembur,
Mumbai 400 089.
10. Yeshwanthrao Kumram, age 59,
Indian Citizen inhabitant of Mumbai,
Senior Programmer at NITIE Mumbai,
R/o. Flat No. 10, Type IV, Jhelum Building,
NITIE Campus, Powai, Mumbai 400 087.
11. S.M.Venkataramaiah Ramagiri, age 59,
Indian Citizen inhabitant of Mumbai,
Systems Designer at NITIE Mumbai,
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Flat No. 19, Ganga Building,
Computer Centre, R/o. Nitie Campus
Powai, Mumbai 400 087.
12 Pratima N. Dabholkar, age 54,
Indian Citizen inhabitant of Mumbai,
Programmer at NITIE Mumbai,
R/o. B- 204, Krishna Residencies,
Cardinal Gracious Road, Chakala,
Andheri East, Mumbai - 400 099.
13. Arun K. Vishwakarma, age 50,
Indian Citizen inhabitant of Mumbai
Junior Engineer at NITIE Mumbai,
R/o. Flat No. 13, Type IV,
Nitie Campus, Powai,
Mumbai 400 087.
14 Baban Tikaram Hawelikar, age 56,
Indian Citizen inhabitant of Mumbai,
Sr. Library & Info Asstt. at NITIE Mumbai,
R/o. Flat No. 32, 3-A Building,
Shree Gokul CHS, Vrindavan Society,
Thane (W) 400 601.
15. Kashinath Bhimshah Kote, 71,
Indian Citizen inhabitant of Mumbai,
Deputy Registrar at NITIE Mumbai
R/o. Flat No. 203, A Wing, Trimbak Apt.
Mt. Wani Ali Kulgaon, Thane District,
Badlapur East, Maharashtra 421 503.
16. Jaywant Krishnrao Karande, 55,
Indian Citizen inhabitant of Mumbai,
Programmer at NITIE Mumbai,
R./o. E/ 514, Charkop Arvindo CHS,
Sector 9, Kandivali (W), Mumbai 400 067. ... Petitioners
Versus
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1. The Union of India,
Through its Ministry of Education,
Shastri Bhavan, New Delhi
2. National Institute of Industrial Engineering,
(NITIE for brevity hereinafter),
an Autonomous Body & registered Society,
under the Department of Education,
having its campus at Vihar Lake Road,
Mumbai 400 087 through its Registrar. ... Respondents
WITH
WRIT PETITION NO. 165 OF 2022
1. Chandana Mukhopadhyay, age 62,
Indian Citizen inhabitant of Mumbai,
Widow of Adip Kumar Mukhopadhyay,
Former System Designer at NITIE,
Mumbai, Residing at 301 Arunodaya Apt.
IIT Market, Padmavati Road,
Powai, Mumbai 400 076.
2. Sunita Suresh Jain, aged 56,
Widow of Suresh Chandra Jain,
Former Hindi Officer at NITIE Mumbai,
residing at 487 Murad Mansion, R. No. 19,
S.V.P. Road, Mumbai 400 004 ... Petitioners
Versus
1. The Union of India,
Through its Ministry of Education,
Shastri Bhavan, New Delhi.
2. National Institute of Industrial Engineering,
(NITIE for brevity hereinafter),
an Autonomous Body & registered Society,
under the Department of Education,
having its campus at Vihar Lake Road,
Mumbai 400 087 through its Registrar ... Respondents
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WITH
WRIT PETITION NO. 1206 OF 2022
1. Dr. Thomas Mathew, age 80,
Indian Citizen inhabitant of Kerala,
Retired as Director from NITIE,
residing at 2 B Link, Laxman Apt.,
S.A.Road, Valanjambalam Ernakulum,
Kochi, Kerala.
2. Dr. Pradip Kumar Biswas, age 69,
Indian Citizen inhabitant in West Bengal,
Retd. Professor at NITIE Mumbai,
residing at 5/1 Dargatala Ghat Lane,
Sakher Bazar, Uttarpara,
Dist : Hooghly, West Bengal.
3. Sushil Kumar, age 55,
Indian Citizen inhabitant of Lucknow,
Professor at IIM Lucknow,
former Assistant Professor, NITIE,
Mumbai, residing at No. 546,
IIM Lucknow Campus,
Prabandh Nagar, IIM Road,
Lucknow 226 013.
4. Dr.Narayana Neelakantan, age 73,
Indian Citizen inhabitant of Gurgaon
Retd. Professor from IIM Lucknow,
former Associate Professor, NITIE,
Mumbai, residing at 1/ 202,
Heritage City, Mehrauli Gurgaon Road,
Gurgaon, Haryana 122 002.
5. Harsh Vardhan Bhasin, age 71,
Indian Citizen inhabitant of New Delhi,
retired as Professor, NITIE, Mumbai,
residing at G-1, Jangpura Extension,
New Delhi 110 014 ... Petitioners
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Versus
1. The Union of India,
Through its Ministry of Education,
Shastri Bhavan, New Delhi.
2. National Institute of Industrial Engineering,
(NITIE ) Powai, Vihar Lake Road,
Mumbai 400 087 ... Respondents
......
Mr.C.R.Sadasivan for the Petitioners in all Writ Petitions.
Mr.Neel Helekar, Senior Panel Counsel with Mr.A.A.Garge for
Respondent No.1.
Mr.Neel G. Helekar with Mr.Kanhaiya S. Yadav for Respondent
No.2.
......
CORAM : NITIN JAMDAR, AND
M.M. SATHAYE, JJ.
DATE : 1 April 2024.
JUDGMENT (Per : Nitin Jamdar, J.)
The Petitioners are retired employees of the National Institute
of Training and Industrial Engineering. In Writ Petition No. 2960 of
2021, there are sixteen Petitioners. They worked as professors, library
and information officers, medical officers, video cameramen, senior
programmers, system designers, programmers, junior engineers,
senior library and information assistants, and deputy registrars.
Petitioner Nos. 7 to 14 and 16 are still in service. In Writ Petition
No. 165 of 2022, there are two Petitioners, who are the widows of
the former employees. Petitioner No.1's husband worked as a System
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Designer, and Petitioner No.2's husband worked as a Hindi Officer.
The husband of Petitioner No.1 - Adip Kumar Mukhopadhyay, died
in harness on 28 September 2008, and the husband of Petitioner
No.2- Suresh Chandra Jain, retired on superannuation with effect
from 31 December 2014 and expired on 3 September 2020. Writ
Petition No. 1206 of 2022 is filed by five Petitioners. These
Petitioners have retired on superannuation either from the National
Institute of Training and Industrial Engineering or other
Autonomous Body where they sought transfer.
2. The Petitioners have filed these Writ Petitions for a declaration
that they are entitled to shift from the Contributory Provident Fund
Scheme (CPF Scheme) to the General Provident Fund-cum-Pension-
cum-Gratuity Scheme from the date they have superannuated. Based
on this declaration, further reliefs are sought. The Petitioners joined
the Union of India through the Ministry of Education and National
Institute of Training and Industrial Engineering (for short, NITIE)
as party Respondents. NITIE, is under the control of the Central
Government with autonomy in some respects and is covered by the
Union Government's Block Grant.
3. Pension Scheme was introduced by the Respondent - Union
of India (UOI) by Office Memorandum dated 1 May 1987 through
Ministry of Personnel, Public Grievances and Pensions, Department
of Pension and Pensioners' Welfare. It also provided for
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implementation of the recommendations of the Fourth Central Pay
Commission. This Office Memorandum permitted change over of
the Central Government employees from CPF Scheme to the
Pension Scheme. The preamble to the Office Memorandum and
the relevant clauses read thus :
"... the Central Government employees who are
governed by the Contributory Provident Fund
Scheme (CPF Scheme) have been given repeated
options in the past to come over to the Pension
Scheme. The last such option was given in the
Department of Personnel and Training O.M. No.
F3(1)- Pension unit/ 85 dated the 6th June, 1985.
However, some Central Government employees
still continue under the CPF Scheme. The Fourth
Central Pay Commission has now recommended
that all CPF beneficiaries in service on January 1,
1986, should be deemed to have come over to the
Pension Scheme on that date unless they specifically
opt out to continue under the CPF Scheme.
***
3. All CPF beneficiaries, who were in service on
1.1.1986 and who are still in service on the date of
issue of these orders will be deemed to have come
over to the Pension Scheme.
3.2 The employees of the category mentioned above
will, however, have an option to continue under the
CPF Scheme, if they so desire. The option will have
to be exercised and conveyed to the concerned Head
of Office by 30.09.1987 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.
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3.3. The CPF beneficiaries, who were in service on
1.1.1986, but have since retired and in whose case
retirement benefits have also been paid under the
CPF Scheme, will have an option to have their
retirement benefits calculated under the Pension
Scheme provided they refund to the Government,
the Government contribution to the Contributory
Provident Fund and the interest thereon, drawn by
them at the time of settlement of the CPF Account.
Such option shall be exercised latest by 30.09.1987.
3.4. In the case of CPF beneficiaries, who were in
service on 1.1.1986 but have since retired, and in
whose case the CPF Account has not already been
paid, will be allowed retirement benefits as if they
were borne on pensionable establishments unless
they specifically opt by 30.09.1987 to have their
retirement benefits settled under the CPF Scheme.
3.5. In the case of CPF beneficiaries, who were in
service on 1.1.1986, but have since died, either
before retirement or after retirement, the case will be
settled in accordance with para 3.3 or 3.4 above as
the case may be. Options in such cases will be
exercised latest by 30.09.1987 by the widow/
widower and in the absence of widow/ widower by
the eldest surviving member of the family who
would have otherwise been eligible to family
pension under the Family Pension Scheme if such
scheme were applicable .
3.6.The option once exercised shall be final.
3.7. In the types of cases covered by paragraph 3.3.
and 3.5 involving refund of Government's
contribution to the contributory provident fund
together with interest drawn at the time of
retirement, the amount will have to be refunded
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latest by the 30th September, 1987. If the amount
is not refunded by the said date, simple interest
thereon will be payable at 10% per annum for period
of delay beyond 30.9.1987.
......
......"
4. The Respondent - NITIE sought option from its employees
and, according to the Petitioners, they exercised an option to remain
in the existing CPF Scheme. They did not exercise the option to
enter into the Pension Scheme within the time limit provided to the
employees. According to the Petitioners, many of them retired on
superannuation at 60 years for non-teaching staff and 65 years for
teaching staff and received their contributory provident fund with
the contribution of the Management and gratuity. It is the case of the
Petitioners that they did not give an option positively to shift from
contributory provident fund to general provident fund nor refrained
from giving any option. However, specifically, they exercised the
option to retain the existing Scheme. According to the Petitioners,
when they found that the decision taken by them by non-opting for
the Pension Scheme was incorrect, the Petitioners made requests
from time to time to the NITIE and the UOI to permit them to
change over the Scheme from CPF to Pension Scheme and also
agreed to refund the Management contribution of the contributory
provident fund.
5. The Petitioners contend that even in 1998, the Respondent -
NITIE had considered the request of the Petitioners and other
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employees and had approved the switch from the CPF Scheme to the
Pension Scheme. However, on 18 January 2000, the Respondent -
UOI erroneously informed that the Fifth Central Pay Commission
had not recommended the exercise of such an option to switch from
the CPF Scheme to the Pension Scheme. In the year 2000, the
Respondent - NITIE reiterated its earlier recommendation and again
sent a proposal to the Respondent - UOI, which was not approved.
On 29 December 2005, the Respondent -NITIE took a decision
stating that the Respondent -NITIE has been brought under the
Block Grant Scheme. The Petitioners contend that there is no
financial involvement of the Government, and similar options were
given to the other Autonomous Bodies. The Respondent - NITIE,
issued a Circular calling for the exercise of options from the
employees governed by the CPF Scheme by issuing an Officer Order
dated 23 February 2006. However, the Respondent - UOI did not
permit such a switch over to the Petitioners and other employees.
The meeting was held on 15 January 2007, and the Respondent -
NITIE, took up the issue with the UOI, which was turned down on
19 August 2008, referring to the communication issued by the
Ministry of Finance, Department of Expenditure, dated 30 July
2007.
6. One of the employees of the Respondent - NITIE wrote letter
to the Ministry regarding the grant of the option and the letter was
forwarded by the Ministry to the Respondent - NITIE on 28
January 2019. Lastly, in February 2021, the decision was taken by
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the Respondent -NITIE not to permit such switch over from CPF
Scheme to Pension Scheme and the same was informed by a letter
dated 16 July 2021 on the ground that the Board of the Respondent
- NITIE has examined the matter and as per applicable norms of the
Ministry of Education of the UOI, the request cannot be accepted.
Since this request was not accepted, the Petitioners are before us
seeking a declaration and direction as above.
7. Heard Mr. Sadasivan, the learned Counsel for the Petitioners,
Mr. Helekar, the learned Counsel for Respondent No.1 and
Mr. Yadav, the learned Counsel for Respondent No.2.
8. In the reply affidavit, the Respondent- NITIE contends that
though, as per Office Memorandum dated 1 May 1987, the option
was to be exercised by 30 September 1987, the Respondent - NITIE
decided to seek an option from employees with the clear stipulation
that the option once exercised shall be final. It is concluded that the
Petitioners have consciously exercised their option to continue under
the CPF Scheme. Therefore, the Petitioners cannot seek a change to
exercise the option. It is stated that though the Respondent -NITIE,
had sought clarification from the Ministry of Education regarding
the representation of the employees, the Respondent-UOI has not
accepted the same.
9. The Respondent - UOI, in its reply, has taken a stand that the
Office Memorandum dated 1 May 1987 was clear, and it stated that
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the option, once exercised, shall be final. It is stated that though the
Respondent - NITIE had requested the Respondent - UOI, it was
specifically turned down and not permitted. It is also stated that the
Petitioners have consciously made a decision and did not make a
grievance till 2005; therefore, they were not entitled to the relief
sought. It is also stated that earlier, under the CPF Scheme, the rate
of interest was substantially high. Therefore, the Petitioners
consciously chose to continue under the Scheme, and only when the
interest dropped did the Petitioners make a grievance in the year
2005. It is also stated that all the Petitioners were working and
eligible for full reimbursement for themselves and their family with
respect to medical treatment till their retirement age.
10. Rejoinder has been filed by the Petitioners contravening the
contentions raised by the Respondents. The Petitioners have heavily
relied upon the decision of the Hon'ble Supreme Court in the case of
University of Delhi Versus Shashi Kiran and Others1.
11. We have considered the rival contentions.
12. The Office Memorandum dated 1 May 1987 clearly stated that
the option had to be exercised by 30 September 1987. Respondent
No.2- NITIE sought an option from its employees to be submitted
by 30 September 1987 and again on 2 May 1989, stating that the
option should be submitted by 28 September 1989. The
Respondent - NITIE has stated that it is because the pay scales were
1 2022 SCC OnLine SC 594
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revised. In the office order issued by the Respondent - NITIE, it
was specifically stated that the option, once exercised, would be final.
It is also stated in the office order dated 2 May 1989, clearly putting
the Petitioners and the employees to notice that the option would be
final and a note of such option should be made in the service book of
the employee concerned under the DR (Admn)'s signature. All the
Petitioners specifically signed the option form. There was no
confusion or ambiguity as the Petitioners had made a conscious
decision while signing the option form and acknowledging the same.
The Petitioners are educated, and it is not even their case that they
were misled into exercising the option. The only contention raised
by the Petitioners is that, subsequently, their decision proved
incorrect. The Petitioners consciously chose to remain under the
CPF Scheme as they admitted that the interest rate was much higher
at almost 14%. Therefore, the Petitioners chose to continue under
the CPF Scheme, and thereafter, the interest rate dropped.
13. In the decision of the Hon'ble Supreme Court in the
University of Delhi, the teaching staff of colleges and institutions
affiliated with Delhi University have approached the Delhi High
Court to switch over to the GPF Scheme from the CPF Scheme.
This case also concerns the Office Memorandum dated 1 May 1987
and the cut off date of 30 September 1987. The learned Single
Judge of Delhi High Court classified the petitions into three batches
of cases based on the steps taken by each of the Petitioners as to
when they exercised the option or did not exercise the option. The
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Hon'ble Supreme Court noted the common thread through three
batches of cases, which was that if the concerned employees exercised
no option before the cut-off date, they would be deemed to have
come over to GPF. It was only a positive option exercised by the
employees to continue to be under CPF, which could have departed
from such a deeming provision. Once exercised, the option was final,
so there could be no switchover from those who had consciously
opted to be under CPF. The view taken by the learned Single Judge
in two batches of cases was affirmed that once the option was
exercised to continue under CPF, there was no room for any
comeback situation. The Hon'ble Supreme Court discussed the law
on the subject and found that around 2469 employees were
permitted to switch over after the cut-off date, and only remaining
75 employees sought the shift and the case on the principle of parity
and equality was made out.
14. The learned Counsel for the Respondents have correctly
pointed out that the factual position in the case of the University of
Delhi was completely different. The Hon'ble Supreme Court noted
that after notification of 1 May 1987, the options were given again
and again, and the bulk of employees, 2469 employees, were granted
the choice of reverse switch over. They were allowed all the benefits
under the GPF Scheme. The Hon'ble Supreme Court observed that
when the notification dated 1 May 1987 was issued, the authorities
were conscious of the possibility that all the employees may come
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over to the GPF Scheme and the fund was constituted. It was held
that the shift of 75 employees would not in any way affect the
strength and character of the fund. The Hon'ble Supreme Court
held that it would not open floodgates, and there would not be a
financial drain.
15. In the case at hand there were no such repeated extensions
nor any discrimination with any class, unlike the decision in the case
of the University of Delhi. The decision in University of Delhi was
primarily on parity when 2469 employees were granted switch over
by granting options on several occasions and that the Hon'ble
Supreme Court extended the benefit to the remaining 75 employees.
In this case, the Petitioners, educated persons, consciously, for a good
reason, exercised the option, and later, when they found that their
choice was not correct, they attempted to switch their option to
another Scheme. The learned Counsel for the Respondents,
therefore, rightly contended that there is no general proposition of
law laid down that any employee, even though consciously has
exercised the option of continuing under the CPF Scheme, can seek
an extension after the cut-off date was crossed.
16. Record shows that in the years 1998, 2000, 2005 and 2007,
the Respondent - NITIE made correspondence with the Ministry of
Education, Union of India, whether to permit the switch over from
the CPF Scheme to Pension Scheme; however, the request was
turned down. The contention of the Petitioners based on the
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position prevailing in other institutions is concerned, it will have to
be seen that the Respondent - NITIE had made a request to the
UOI and the UOI, which is the sole funding authority for the
Respondent - NITIE, did not accept this request on the premise that
such request would have wide repercussions with many similarly
placed autonomous bodies demanding the same benefits beyond the
cutoff date.
17. Therefore, neither the action of the Respondent - NITIE nor
of the Respondent - UOI not permitting the Petitioners to change
their option after the cut-off date can be considered arbitrary or
unreasonable. It is placed on record that the Respondent- NITIE, is
extending the benefit of full reimbursement for the employees and
their family regarding medical treatment. They are also eligible for a
post-retirement medical scheme under which a maximum amount of
Rs. 20 lakh as medical expenses will be made available for any
hospitalized treatment for themselves and their spouse. It is,
therefore, sought to be placed on record that even though the
Respondent -NITIE cannot accede to the request of change of
option, it is not that serving Petitioners-employees are gravely
prejudiced as they get benefits in another form.
18. The Respondents also pointed out previously that the interest
rate was significantly higher in the CPF Scheme. Consequently, the
Petitioners knowingly opted to remain within the Scheme. It was
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only upon the decrease in interest rates that they raised grievances.
All the Petitioners made conscious choices based on whatever was
beneficial to the Petitioners at that point in time. Therefore, they
cannot be permitted to resile from this decision after the cutoff date.
No position of law is shown to us that the Petitioners have legal right
for reversing the option, after a long period of time.
19. In these circumstances, we do not find that any case is made
out. No interference in writ jurisdiction is warranted.
20. The Writ Petitions are accordingly dismissed.
(M.M. SATHAYE, J.) (NITIN JAMDAR, J.)
