Jitendra Pal Singh vs Lt. Governor Nct Of Delhi & Others
2010 Latest Caselaw 152 Del

          IN THE HIGH COURT OF DELHI AT NEW DELHI
                       W.P. (C ) NO. 21243/2005

                       Judgment delivered on :13 January, 2010


Jitendra Pal Singh                                  ......Petitioner
                           Through: Mr. Subrat Birla, Advocate

                           Versus

Lt. Governor NCT of Delhi & others                  ..... Respondents

                           Through: Ms. Yashmeet, Advocate for R-3.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR,
1. Whether the Reporters of local papers may                     Yes
   be allowed to see the judgment?

2. To be referred to Reporter or not?                            Yes

3. Whether the judgment should be reported                       Yes
   in the Digest?


KAILASH GAMBHIR, J. (ORAL)

1. By this writ petition filed under Article 226 of the

Constitution of India the petitioner seeks to issue direction to

respondent no.3 to comply with Section 10 of the Delhi School

Education Act, 1973.

2. Brief facts as per the petitioner relevant for deciding the

present petition are that the petitioner was a teacher in the respondent

no.3 school for the about last 30 years and attainted superannuation

on 31.3.2005. He never voluntarily opted for Contributory Pension

Scheme (CPF) scheme offered by the respondent and the option of

pension was never given as required under Section 10 of the Delhi

School Education Act and the Rules framed there under and that for

the same the present petition is filed.

3. Counsel for the petitioner submitted that the petitioner

never opted for CPF scheme and once having not opted the said

scheme the petitioner is entitled to the pension as applicable to the

Government teachers in terms of Section 10 of the Delhi School

Education Act and Rules framed there under. He submitted that a

letter was also written by the petitioner to respondent no.3 seeking

grant of pension and a copy was also sent to the Director of Education.

He further submitted that a reply was given by respondent no.3 stating

that the petitioner should approach EPF Department for sanction of the

pension, and on the other hand there was no response from the

Director of Education. As no steps were taken the petitioner was

compelled to file the present petition.

4. Refuting the said submissions of the petitioner, the counsel

for the respondent submitted the petitioner regularly contributed his

share of the provident fund contribution, and he thus became entitled

to the pension under "Family Pension Fund" and hence enjoyed the

said benefit there under. Counsel for the respondent drew the

attention of this Court to the photo copy of the statement showing the

amounts of the contributions made by the employees and the share

contributed by the employer, wherein it is shown that the petitioner

himself is the signatory to the said contribution being made from his

salary to the contributory fund. The said chart also clearly show that

equal amount was contributed by the employer towards their share.

The counsel for the respondent no.3 further submitted that the

petitioner being a member of the EPF and having availed of and

withdrawn amount from his provident fund account cannot now seek

pension benefits which are available to the Government employees.

He submitted that no doubt there was one entry on page 74 of the

paper book that showed that at the time of withdrawal of the amount

by the petitioner he had received the same under protest but the same

itself would not show that the petitioner was not aware of the fact that

the said scheme of CPF was not applicable to him.

5. I have heard the counsel for both the parties and perused

the records.

6. The argument of counsel for the petitioner in my view is

amazing as the said scheme was applicable to all other employees

then where was the question of the school to leave out the petitioner

from the said scheme or for the petitioner not to have opted the said

scheme or not to have known the said scheme. The petitioner has

claimed parity with the other employees of the Government schools

based on Section 10 of the Delhi School Education Act and the Rules

framed there under. It would be relevant to reproduce the same here:

10. Salaries of employees--(1) The scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognised private school shall not be less than those of the employees of the corresponding status in school run by the appropriate authority:

Provided that where the scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of any recognized private school are less than those of the employees of the corresponding status in the schools run by the appropriate authority, the appropriate authority shall direct, in writing, the managing committee of such schools to bring the same up to the level of those of the employees of the corresponding status in schools run by the appropriate authority:

Provided further that the failure to comply with such direction shall be deemed to be non- compliance with the conditions for continuing recognition of an existing school and the provisions of Section 4 shall apply accordingly.

7. The same issue was also dealt in judgment of this court in

Ajit Singh Vs. Director of Education & Ors., 2006 VIII AD

(DELHI) 708 where it was held that:

"4. As is clear from the Section, the scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognized private school cannot be less than those of the employees of the corresponding schools run by the appropriate authority. Accordingly, the pay allowance etc. could be better. The concept of parity is different from the concept of less than. The petitioner's case is that the benefit of the CPF or of the EPF provided to him under the service agreement or otherwise by application of law is less than the benefit of the GPF which is available to the teachers of the schools run by the Government. The return of the CPF or EPF Scheme is different from the return of the GPF with pension scheme and the two returns are valued differently for different people.There is no scale by which it can be said that the value of the CPF and EPF scheme is less than the value of the GPF pension scheme.

5. The employees of the schools run by the Government become entitled to the GPF scheme by virtue of their being Government servants. The benefit of the GPF scheme cannot be extended to the employees of the private schools as the employees of the private schools are not Government servants or others to whom the GPF applies."

8. The issue is otherwise no more res integra as this Court in

V.S. Rahi Vs. The Lt. Governor, Delhi & Ors.109 (2004) DLT 644

has already taken a view that the benefits of the contributory

provident fund scheme are in the nature of substitution and not in

addition to the pension and since there is no pension scheme

applicable to the private unaided school in Delhi, and therefore, the

scheme of pension cannot be made applicable to the petitioner ipso

facto. It would be pertinent to reproduce the relevant para of the said

judgment:

"10. For the foregoing reasons, I am of the opinion that not only that this petition was barred by principles of resjudicata but even otherwise the petitioner was not entitled to the benefits of pension as he had availed of the benefits of Contributory Provident Fund Scheme. The benefits of the Contributory Provident Fund Scheme are in the nature of substitution and not in addition to the pension and since there is no pension scheme applicable to the private unaided schools in Delhi, in my opinion, the petitioner would not be entitled to any such pension."

9. It is thus quite manifest from above that the persons who

are already members of the Contributory Provident Fund (CPF) scheme

would not be entitled to the pension in terms of the pension rules

which may be applicable to the government teachers where the

contributory pension scheme is not applicable.

10 . Counsel for the petitioner placed reliance on the judgment

of this Court in Safir Ahmed and others Vs. Lieutenant Governor,

National Capital Territory of Delhi and Others 76(1998) DLT

404. In my view this does not help the petitioner as the same was

distinguished in the case of V.S. Rahi (supra) where it was observed:

"In Safir Ahmed and others Vs. Lieutenant Governor, National Capital Territory of Delhi and Others (supra), the Court was concerned with the writ petition filed by certain employees of a minority institution wherein they had claimed that they should be paid the same pay and allowances and other benefits, as were being paid to other aided and recognised educational institutions. It was in this context that the Court directed that the petitioners in that case were entitled to gratuity and pension according to pay drawn by them at the time of resignation or retirement and, accordingly, the respondents in that case were directed to pay pension and other allowances payable to the petitioner at par with other educational institutions on the basis of the last pay drawn. The court in that case was not concerned whether an employee who was a member of the Contributory Provident Fund Scheme was also entitled to pension. The court had only directed the payment of salary, pension and gratuity, etc. at par with other educational institutions."

11 . Hence in the light of the above discussed legal position, I do

not find any merit in the present petition and the same is hereby

dismissed.

JANUARY 13, 2010                                         KAILASH GAMBHIR,J
MG