A.P.Verma vs National Council Of Educational ...
2013 Latest Caselaw 924 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Judgment delivered on: 25.02.2013


W.P.(C) 8489/2011

A.P.VERMA                                                              ..... Petitioner

                          versus

NATIONAL COUNCIL OF EDUCATIONAL RESEARCH &
TRAINING                               ..... Respondent



AND



W.P.(C) 8491/2011

A.K.SACHETI                                                            ..... Petitioner

                          versus

NATIONAL COUNCIL OF EDUCATIONAL RESEARCH &
TRAINING                               ..... Respondent

Advocates who appeared in these cases:
For the Petitioners : Mr Manu Mridul with Mr Anant K.Vatsya and Ms Priyanka Singh.
For the Respondent  : Mr R.K.Singh with Ms Deepa Rai and Ms Reena Chongtham.




CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL



W.P.(C)s 8489/2011 & 8491/2011                                           Page 1 of 11
                                      JUDGMENT

SIDDHARTH MRIDUL, J.

1. These two petitions assail the common judgment and order dated

10.11.2010 passed by Central Administrative Tribunal (hereinafter referred

to as 'Tribunal') in OA No.1160/2010 and OA No.1168/2010 whereby the

Tribunal dismissed the original applications of the petitioners.

2. Since the above petitions raise common issues, this common Judgment

shall dispose of the aforesaid petitions filed by the petitioners.

3. For the sake of convenience the facts relevant to the instant

adjudication are being extracted from WP(C) No.8489/2011 and are as

under:-

(i) The petitioner came to be appointed in the respondent National

Council of Educational Research and Training (NCERT) on

08.02.1966.

(ii) By an Office Memorandum No.F.4/1/87-PIC-I dated

01.05.1987 the Central Government on the recommendations of

the Fourth Central Pay Commission notified that the

Government employees subscribing to the existing Contributory

Provident Fund (CPF) were being given an opportunity to

switch over to the Pension/General Provident Fund (GPF)

Scheme.

(iii) The cut-off date for exercising such an option was 30.09.1987.

The terms also specified that in case an employee did not give

any option he/she would be deemed to have opted for pension

scheme. If an employee wanted to continue under the CPF

scheme, he/she had to exercise the option for the CPF scheme.

(iv) The petitioner exercised his option for continuing with the post

retirement benefit under the CPF scheme.

(v) In the year 1993, the respondent invited applications inter alia

for recruitment to the post of Professor (Vocational Education)

in Pandit Sunderlal Sharma Central Institute of Vocational

Education (PSSCIVE) at Bhopal.

(vi) Pursuant to the said advertisement, petitioner along with other

internal and external candidates applied for the said posts. The

petitioner along with a number of persons from various

organizations and institutions participated in the direct

recruitment process and were offered appointment for the said

posts in Bhopal.

(vii) On acceptance of the offer of appointment the petitioner was

appointed as Professor (Vocational Education) in the newly

accredited institute PSSCIVE at Bhopal on a temporary capacity

w.e.f. 21.04.1994.

(viii) By an order dated 26.04.1994, the NCERT issued a formal

order of appointment w.e.f. 21.04.1994.

(ix) In accordance with the terms and conditions of service, the

petitioner along with other appointees, were to be on probation

for a period of two years. On 10.04.2001 and 24.08.2001 the

petitioner made representations to the respondent for change

over from CPF scheme to the pension scheme. However, the

said representations were not responded to by the respondent.

(x) The petitioner retired in the year 2004 on attaining the age of

superannuation.

(xi) However, since the respondent considered the petitioner as

having been bound by the option exercised by him before his

appointment as a Professor in PSSCIVE, Bhopal, the petitioner

challenged the action of the respondent.

(xii) In the original application filed before the Tribunal the

petitioner stated that it had come to his knowledge that one

Ms M.Chandra had joined NCERT, respondent herein, as a

Professor of Chemistry in the year 1989 through direct

recruitment and had opted for CPF while working in her

erstwhile organization. Since, after 01.05.1987 all employees

who were appointed afresh were deemed to be covered by the

notification dated 01.05.1987, she could not be placed in the

CPF scheme. Therefore, Ms Chandra made a representation to

the respondent for being granted GPF/Pension scheme. Pursuant

to that, after seeking advice from the Ministry of Human

Resource Development, the respondent allowed Ms Chandra to

switch over from CPF scheme to GPF/Pension scheme.

(xiii) Similarly, the petitioner had urged in his application that one

Ms Pushplata Verma who was governed by CPF scheme while

in her erstwhile department and similarly opted for being

governed by the CPF scheme, was informed that she would be

entitled to get the benefit of pension-cum-gratuity as per the

rules of the respondents.

(xiv) The petitioner's OA No.3530/2010 was disposed of by the

Tribunal vide its order dated 25.01.2010 directing the

respondent to hear him in the matter and pass appropriate

orders.

(xv) The petitioner duly appeared before the Secretary, NCERT.

However, on consideration of the submissions made by the

petitioner, the competent authority of the respondent passed an

order dated 12.03.2010 by which the plea of the petitioner for

giving him benefit of the GPF/Pension scheme was rejected.

(xvi) Aggrieved by the said order of the competent authority dated

12.03.2010, the petitioner was constrained to file OA

No.1160/2010.

(xvii) By the impugned order the Tribunal disposed of the said

original application and held that the petitioner's service cannot

be treated to have been begun afresh and there being only a

technical break in his service, he will not be entitled to exercise

the option of switch over at this stage.

(xviii)Aggrieved by the said common judgment and order dated

10.11.2010 the petitioners have preferred the present petitions.

4. The issue involved in the present petitions is within a narrow compass

and requires a determination as to whether the petitioners can be given the

benefit of being governed by the GPF/Pension scheme in the facts and

circumstances of the case.

5. Learned counsel for the petitioners submits that the petitioners were

appointed to the posts in PSSCIVE at Bhopal through direct recruitment. It is

urged that the said post is a substantive post to be filled through an open

selection process inviting internal as well as external candidates and that in

accordance with the terms and conditions of the service the petitioners were

put on probation for a period of two years. In other words, their appointment

should be governed by the rules as prevalent on the date of the appointment.

6. It is next urged by learned counsel for the petitioners that the said

Ms Chandra and Ms Pushplata Verma who were also appointed through

direct recruitment along with petitioners have been given the benefit of being

governed by the GPF/Pension scheme even though they were governed by

the CPF scheme prior to their appointments and thus on the basis of parity

the petitioners are entitled to the same benefit.

7. Per contra, it is argued on behalf of the respondent that the petitioners

had specifically opted to continue under the CPF scheme in accordance with

the OM No.F.4/1/87-PIC-I dated 01.05.1987 and that since, thereafter, there

has been no enabling office memorandum permitting the petitioners to

switch over from the earlier exercised option, the petitioner cannot be

permitted to do so.

8. The respondent relies on the decision in Krishna Kumar v. UOI,

(1990) 4 SCC 207, to demonstrate that an option once exercised under the

above OM, and the dead line for exercising such option having expired, the

employee has no right to change from one scheme to other.

9. It is also relevant, at this stage, to consider the findings of the Tribunal

which rejected the petitioners' arguments of fresh appointment and observed

that though the petitioners were selected on the basis of direct recruitment

yet all the contributions made under the CPF scheme in their past service in

the NCERT and future accretions would accrue to the same account. The

Tribunal, therefore, found that there was only a technical break in service

and as such the petitioners cannot be treated as a new entrant to service.

Further, the Tribunal also rejected the argument on parity observing that in

the case of Professor M.Chandra, she has joined the service of NCERT on

the first time and as such was a fresh appointee.

10. In the present case, it is observed that the said Ms M.Chandra had

opted for the CPF scheme in her erstwhile organization as well as in 1991

when she was absorbed in the services of the respondent NCERT. This is

evident from the document appended at page 188 of the present petition. In

this regard the respondent after obtaining the approval of the Ministry of

Human Resource Development vide letter No.F.1-47/2006-Sch.4 dated

09.04.2007 on the representation of the said Ms. Chandra permitted her to

exercise the option to switch over from CPF to GPF/Pension scheme on two

earlier occasions. It is also observed that in the case of the said Ms Pushplata

Verma, the incumbent was also governed by the CPF scheme while in her

erstwhile department and had been permitted by the appointment letter

issued to her to get the benefit of pension-cum-gratuity as per the rules of the

Council.

11. In the present case, it is observed that in the backdrop of the aforesaid

facts, deeming the petitioners be governed by CPF scheme even when it was

not in vogue and presuming service conditions of their last service to be

applicable upon them, has resulted in a wholly anomalous situation.

12. In view of the fact that the respondent NCERT has permitted similarly

placed appointees to switch over to the GPF scheme after being selected

through the same recruitment process, a legitimate expectation is raised in

favour of the petitioners to be treated in a similar manner. The expectation is

further accentuated when the said appointees were permitted to derive the

benefit of GPF scheme despite having exercised the option of CPF scheme

even after they were absorbed in the service of the respondent NCERT.

13. Therefore, when similarly placed employees of the respondent have

been extended the benefit, it would be unreasonable and improper to deny to

the petitioners the benefit of the GPF/Pension scheme merely because they

were earlier engaged in the service of the respondent NCERT. In this behalf

we must observe that the petitioners had been put on probation for a period

of two years subsequent upon their appointment to the relevant post in

PSSCIVE, Bhopal. The Tribunal failed to appreciate that it is settled law that

once a person is appointed to a substantive post through direct recruitment in

an open selection after competing with internal and external candidates the

appointment on the said post is a fresh appointment. Therefore, in our

opinion, the petitioners have been subjected to hostile discrimination,

although they were appointed by the same recruitment procedure as others,

only because they were working with one of the establishments of the

respondent earlier. In our view the same constitutes unequal treatment

amongst equals and is violative of Article 14 of the Constitution of India.

14. We, accordingly, allow the writ petitions and set aside the order of the

Tribunal. Consequently, the respondents are directed to extend all the

benefits of the GPF/Pension Scheme after making necessary deductions to

both the petitioners. No costs.

SIDDHARTH MRIDUL, J

BADAR DURREZ AHMED, J

FEBRUARY 25, 2013/mk