Ms. Maya Devi vs Government Of Nct Of Delhi & Ors.
2009 Latest Caselaw 3456 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                 Writ Petition (Civil) No.20322/2005

                                      Reserved on : 27.05.2009
                                  Date of Decision : 31.08.2009

Ms. Maya Devi                                 ......Petitioner
                             Through:   Mr.Vipul Gupta, Advocate

                              Versus

Government of NCT of Delhi & Ors.       ...... Respondents
                        Through: Ms.Avnish Ahlawat with
                        Ms.Latika Chaudhary, Advocates

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether Reporters of local papers may be
      allowed to see the judgment?                 YES
2.    To be referred to the Reporter or not ?      YES
3.    Whether the judgment should be reported
      in the Digest ?                              YES

V.K. SHALI, J.

1. This is a writ petition filed by the petitioner praying for

quashing of order dated 23rd July, 2005 issued by respondent

No.3 by virtue of which the petitioner's case for being shifted

from Contributory Provident Fund Scheme to Pension Scheme

was rejected by the Deputy Director (Education), District North,

Lucknow Road, Delhi. The petitioner has also prayed for

issuance of an appropriate order for direction to consider the

option of the petitioner for a change given on 8th February, 2000

for reverting to the Pension Scheme from Contributory Provident

Fund.

2. That briefly stated, the facts leading to the filing of the

present writ petition are that the petitioner joined as a TGT with

respondent no.4, DCM Girls Sr. Secondary School, Kishan Ganj,

Delhi on 07.09.1972. The petitioner exercised her option to be

governed by the Contributory Provident Fund Scheme on

07.10.1985. It is alleged by the petitioner that in the year 1987 a

scheme was floated by the Government of India by virtue of

which the persons who had opted for the Contributory Provident

Fund Scheme were permitted to shift to the Pension Scheme.

These instructions were issued vide Office Memorandum dated

1st May, 1987. The petitioner alleges that she had actually opted

for the Contributory Provident Fund Scheme unknowingly and

unmindful of the consequences of continuing with the said

Contributory Provident Fund Scheme as she was most of the

time preoccupied with the teaching. It is alleged by the petitioner

that she was so dedicated in the teaching assignment that she

did not even get married and it was only on 8th February, 2000

that she made representation requesting the Principal of the

respondent No.4 school for permitting her to amend her earlier

option and to switch over to Pension Scheme. This request of the

petitioner is stated to have been dealt with by the respondent

No.4 school along with respondent No.3/ Deputy Director

(Education), District North, Lucknow Road, Delhi whereupon on

consideration of the aforesaid Office Memorandum dated 1 st May,

1987, the petitioner was required to refund the contribution of

the employer which she had received towards the Contributory

Provident Fund. It may be pertinent here to mention that the

petitioner had superannuated, meanwhile, on 30th September,

2003. The petitioner as per the said requirements had also

deposited a sum of Rs.1,75,215/- on 7th July, 2004. After the

deposit of the aforesaid amount, the petitioner had approached

both respondent No.3 as well as respondent No.4 school for

release of her pension, however all in vain and consequently she

was constrained to file the present writ petition.

3. The respondents filed their counter affidavit and did not

dispute the factum that the petitioner was employed with

respondent No.4 school or that she had originally exercised the

option of being governed by the Contributory Provident Fund

Scheme which she continued to avail till the time of her

superannuation on 30th September, 2003.

4. It is further stated by the respondents No.3 in the counter

affidavit that in terms of the Office Memorandum dated 1st May,

1987, it was laid down that all CPF beneficiaries who were in

service on 1st January, 1986 and who are still in service on the

date of issue of these orders, i.e. 1st May, 1987, will be deemed to

have come over to the Pension Scheme. It was further directed in

the said OM that the option will have to be exercised and

conveyed to the concerned Head of the Office by 30th September,

1987 in the form enclosed if the employees wish to continue

under the Contributory Provident Fund Scheme and further if no

option is received by the Head of the Office by the above date, the

employees will be deemed to have come over to the Pension

Scheme. It is the case of the respondents that letter dated

09.02.2004 by virtue of which the petitioner was asked to deposit

the employer's contribution in the Treasury was done under a

mistaken belief as only one part of the OM was read by the

concerned officer which laid down specifically that persons who

were in service on 1st January, 1986 would be deemed to have

reverted back to the Pension Scheme unless and until they

specifically exercise the option to be governed by the

Contributory Provident Fund Scheme.

5. It is the case of the respondents that the officer who asked

the petitioner to deposit the employer's contribution, in fact, read

only the portion of automatic switch over of an employee from

Contributory Provident Fund Scheme to the Pension Scheme if

nothing was heard from him and he did not exercise his option.

This was done on a mistaken belief on account of the fact that

there was an overriding clause attached to the said portion which

specifically laid down that in the case of an employee exercising

his option to be governed by the Contributory Provident Fund

Scheme, there will be no automatic switch over from

Contributory Provident Fund Scheme to the Pension Scheme.

Accordingly, it is urged that since in the instant case the

petitioner not only at the time of joining but even after issuance

of OM dated 1st May, 1987 had exercised her option to be

governed by the Contributory Provident Fund Scheme only,

therefore there was no case for her having been deemed to have

switched over from the Contributory Provident Fund Scheme to

the Pension Scheme. In addition to this, it was only for the first

time on 8th February, 2000 that the petitioner belatedly wanted

to shift from Contributory Provident Fund Scheme to the Pension

Scheme which fortified the stand of the respondents that she was

aware that she was governed by the Contributory Provident Fund

Scheme till the year 2000. On the basis of these averments,

respondents No.1 to 3 have contested the claim of the petitioner

for being permitted to switch over from Contributory Provident

Fund Scheme to the Pension Scheme.

6. The petitioner had filed her rejoinder affidavit and

controverted the pleas raised by respondents No.1 to 3 in the

counter affidavit. No separate counter affidavit has been filed on

behalf of respondent No.4.

7. I have heard the learned counsel for the parties and

perused the record. The short question which arises for

consideration in the instant case is as to whether the petitioner

can be permitted to switch over from the Contributory Provident

Fund Scheme to the Pension Scheme. The Government of India

on 1st May, 1987 issued a notification and gave an option to the

employees to take the advantage of the Pension Scheme by

observing that all the employees at a given point of time, i.e. on

01.05.1987, will be deemed to have switched over from

Contributory Provident Fund Scheme to the Pension Scheme

automatically unless and until they specifically exercise their

option to be governed by the Contributory Provident Fund

Scheme. The case of the petitioner is that the petitioner may

have signed some document mistakenly exercising her option to

be continued to be governed by the Contributory Provident Fund

Scheme, but that was totally unintentional. The petitioner

admittedly in the instant case has exercised an option in the year

1987 also after issuance of OM dated 1st May, 1987 that she

would like to be governed by the Contributory Provident Fund

Scheme and therefore there could not be an automatic switch

over from Contributory Provident Fund Scheme to Pension

Scheme in the case of the petitioner. It is only in February, 2000

for the first time that she had expressed her desire when she was

on the verge of the retirement that she would like to switch over

from Contributory Provident Fund Scheme to the Pension

Scheme. This clearly fortifies the fact that the petitioner was

aware of the fact that she was being governed by the

Contributory Provident Fund Scheme as she had exercised an

option in this regard. Therefore in the case of the petitioner,

there was no automatic switch over from Contributory Provident

Fund Scheme to the Pension Scheme as was envisaged in the

OM.

5. The plea of the petitioner that her case was examined and

she was asked to deposit the employer's contribution in the

Treasury which she did and thereby the petitioner was estopped

from resiling from the said benefit being given to the petitioner

does not seem to be convincing. There is no estoppel against

law. The respondents have specifically stated in the counter

affidavit that the letter by virtue of which the petitioner was

asked to deposit the employer's contribution was issued under a

mistaken belief by reading only a portion of the OM dated 1st

May, 1987 which specifically laid down that there will be

automatic switch over from Contributory Provident Fund Scheme

to the Pension Scheme and without taking into consideration

that this was subject to the fact that if an employee had

specifically exercised his option to be governed by the

Contributory Provident Fund Scheme, then there will be no

question of automatic switch over and in the instant case

admittedly the petitioner had applied in the year 1987 that she

would like to be governed by Contributory Provident Fund

Scheme and she got her contribution deducted till the age of her

superannuation which was on 30th September, 2003. The

petitioner being a Teacher, an educated person, was aware of her

rights. It was too late for her to urge for the first time in the year

2000 when she was on the verge of her retirement to say that she

was not made aware of the OM dated 1st May, 1987 so as to

enable her to exercise her option that she would like to be

governed by the Contributory Provident Fund Scheme or by the

Pension Scheme. This only seems to be an afterthought on the

part of the petitioner as it seems that wisdom has dawned upon

the petitioner only on the eve of her retirement. It seems to be

that it is at that point of time the petitioner must have calculated

the benefit of her Contributory Provident Fund Scheme or the

Pension Scheme and may have felt that the Pension Scheme is

more beneficial and therefore she has tried to set up this case for

switch over from Contributory Provident Fund Scheme to the

Pension Scheme.

6. For the reasons mentioned above, I am of the considered

opinion that not only the petitioner having chosen to be governed

by the Contributory Provident Fund Scheme in pursuance to the

OM dated 1st May, 1987, she was estopped from contending that

she be permitted to change over from Contributory Provident

Fund Scheme to the Pension Scheme but also by her conduct for

all practical purposes she had been governed by the Contributory

Provident Fund Scheme till the time of her retirement, and

therefore the mere fact that she under the mistaken belief and

was asked to deposit the employer's contribution with the

Treasury does not confer any right on her to change over from

Contributory Provident Fund Scheme to the Pension Scheme.

The petitioner is accordingly to be refunded that amount of

Rs.1,75,215/- which she deposited on 07.07.2004. There is

absolutely no dispute that since the petitioner had deposited

Rs.1,75,215/- on 07.07.2004 with respondent No.3, the said

respondent is under an obligation to pay the interest on the said

amount, I accordingly direct respondent No.3 to refund the said

amount of Rs.1,75,215/- within a period of six weeks from today

along with an interest calculated @ of 8% from the date of her

deposit till the time it is actually returned.

7. With these directions, the writ petition is dismissed.

No order as to costs.

V.K. SHALI, J.

August 31, 2009 skw