Maya Devi vs Govt. Of Nct Of Delhi & Ors.
2009 Latest Caselaw 5139 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
1.


+                LPA 633/2009 & CM 17778/2009


        MAYA DEVI                                     ..... Appellant
                         Through: Mr. Vipul Gupta, Adv.

                    versus


        GOVT OF NCT OF DELHI & ORS                 ..... Respondents
                       Through: Ms. Simran, Adv. for Ms. Avnish
                       Ahlawat, Advocate

        CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE DR. JUSTICE S.MURALIDHAR

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

                              ORDER

% 11.12.2009

1. The appellant was appointed as a Trained Graduate Teacher

(TGT) in the DCM Girls Senior Secondary School, Kishan Ganj, Delhi on

7.9.1972. She retired on 30th September, 2003 after serving for more

than 30 years. After joining the Respondent No.4 school, the appellant

was required to select one of the three post-retirement benefits, i.e. (a)

Contributory Provident Fund (CPF) Scheme; (b) Triple Benefit Scheme;

and (c) Pension Scheme under Central Civil Service (Pension) Rules,

1972. The appellant states that she filled up an option form dated

3.1.1976 opting for the CPF Scheme. Thereafter, option for conversion

from the CPF to the Pension Scheme was given to all the Central

Government employees in 1985. This was, however, not exercised by

the appellant.

2. Pursuant to an Office Memorandum dated 1st May, 1987,

employees covered under the CPF Scheme as on 1 st January, 1986

were given an option to come over to the Pension Scheme unless they

specifically opted to continue in the CPF Scheme. According to the

appellant, she never signed any option form for continuing in the CPF

Scheme as required in the Office Memorandum. Consequently, she

was deemed to have come over to the Pension Scheme.

3. On 08.02.2000, the appellant made a request to the School to

record that she had opted for coming over to the Pension Scheme.

However, respondent No.4 School, despite receiving the request, did

not take any action thereon. The appellant retired on 30 th September,

2003, but was not given retirement benefits thereafter. When she

enquired as to why she was not paid her dues, she was paid the

provident fund which included the share of the employer. This was

done on the basis that the appellant was under the CPF Scheme and

not under the Pension Scheme. It is stated that on realizing the

mistake committed in dealing with the appellant's case, the officials of

the respondent asked the appellant to immediately deposit the

employer's share of Rs.1,75,215/- which had been paid to her

inadvertently by the respondent. This was done by letter dated

9.2.2004.

4. The appellant states that pursuant to the aforementioned order,

she deposited the entire amount of employer's share of Provident Fund

with the treasury. Thereafter, she kept approaching the respondents

to retrieve her retiral dues. No heed was paid to her requests.

5. After her efforts failed, the appellant filed WP(C) No. 20322/2005

in this Court which has been disposed of by the impugned judgment

dated 31.8.2009 of the learned single Judge.

6. In the impugned order, the learned single Judge held that it is

only in February, 2000 that for the first time the appellant expressed

her desire to switch over from CPF Scheme to the Pension Scheme.

There was, therefore, no automatic switch over from the CPF Scheme

to the Pension Scheme as was envisaged in the Office Memorandum. It

was held that her opting for the Pension Scheme was an afterthought,

which perhaps was felt to be more benefitted to the appellant. It was

further held that since the appellant had opted to be governed by the

CPF Scheme pursuant to the Office Memorandum dated 1st May, 1987,

she was estopped from contending that she should be permitted to

change over from CPF Scheme to the Pension Scheme. Accordingly, it

was directed that respondent No.3 should refund to the appellant the

amount of Rs.1,75,215/- together with interest @8% from the date of

deposit till the time it is actually returned.

7. We have perused the original records of the Directorate of

Education, Government of NCT of Delhi. We find that the Office

Memorandum dated 1st May, 1987 issued by the Government of India

requiring all Central Government employees to exercise their option to

switch over from CPF Scheme to Pension Scheme had to be exercised

"latest by 30.9.1987". Yet this letter itself was circulated to all schools

by the Directorate of Education of the Delhi Administration only on

30.10.1987, long after the last date for exercising the option was

crossed.

8. Moreover, we find that what is available on file is a hand written

note dated 10.11.1987 in Hindi by which the teachers were informed

that if they wished to exercise their option to move from CPF Scheme

to Pension Scheme, they should attend the office and fill up the

necessary form. There are signatures of the teachers, including the

appellant, below the text. It was contended before the learned single

Judge that this signified exercise of option by the appellant for the CPF.

We think not.

9. We find that a proforma form has been appended to the Office

Memorandum dated 1st May, 1987. No such signed option form of the

appellant is available on record. The Hindi text of the note under

which the petitioner has signed with the initial P.F. only indicates that it

was an intimation to the employees to attend the office and fill up the

option form. The mere fact that the appellant wrote P.F. next to her

name on this letter cannot mean that she exercised her option to

switch over from the CPF to the Pension Scheme. In fact, we find no

such option form having been signed by the appellant. In any event

she obviously signed below the above note only on 10.11.1987, long

after the last date for exercising such option which was 30.9.1987.

Therefore, even if it is assumed that she exercised an option to

continue in the CPF, such option was not a valid one.

10. We are, therefore, unable to agree with the findings of the

learned single Judge. The impugned order is accordingly set aside. The

respondents will now process the case of the appellant as if she had

switched over from CPF Scheme to Pension Scheme as on 1.10.1987

and pass all other necessary consequential orders within a period of

eight weeks from today. The appeal is accordingly allowed with cost of

Rs.5,000/- to be paid by the respondents to the appellant within a

period of four weeks. The application is disposed of.

CHIEF JUSTICE

S.MURALIDHAR, J DECEMBER 11, 2009 pk