Prof.R.Chandra vs Gnct Of Delhi & Ors.
2013 Latest Caselaw 4123 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 916/2011
%                                                    12th September, 2013

PROF.R.CHANDRA                                     ......Petitioner
                          Through:       Mr. B.Mahapartra, Adv.


                          VERSUS

GNCT OF DELHI & ORS.                                      ...... Respondents

                  Through:               Mr. Vibhav Mishra, Ms. Tania
                                         Ahlawat, Advocates for Ms. Avnish
                                         Ahlawat, Adv.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?         Yes


VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition, petitioner seeks direction for quashing of the

order dated 31.12.2008 passed by the respondent no.2. The impugned order

dated 31.12.2008 has the effect that the petitioner‟s earlier services with

Regional Engineering College, Kurukshetra, Haryana (in short „REC,

Kurukshetra‟) has not been joined with the service rendered by the petitioner

thereafter with respondent no.2 for calculating the pension of the petitioner

payable to the petitioner by the respondent no.2.

2. The facts of the case are that petitioner joined the REC, Kurukshetra

on 3.8.1970 and served there till 23.6.1982. The petitioner was appointed to

the post of Assistant Professor in the respondent no.2 on 24.6.1982.

Petitioner claims that this earlier service rendered with the REC,

Kurukshetra be added to the service rendered by the petitioner with the

respondent no.2 from 24.6.1982 for the purpose of calculating his pension.

3. The admitted relevant rule applicable for joining of services for grant

of pension is Para 6 (3) (b) (ii) of Appendix 7 of CCS (Pension) Rules and

the same reads as under:-

"An employee of an Autonomous Body on permanent absorption under the Central Government will have the option either to receive CPF benefits which have accrued to him from the Autonomous Body and start his service afresh in Government or choose to count service rendered in that Body as qualifying service for pension in Government by forgoing employer‟s share of CPF contribution with interest thereon, which will be paid to the concerned Government Department by the Autonomous Body. The option shall be exercised within one year from the date of absorption . If no option is exercised within stipulated period, employee shall be deemed to have option to receive CPF benefits. The option once exercised shall be final."

4. On behalf of the petitioner before me, the following arguments are

urged:-

(i) Petitioner has exercised the option within one year of the date of

confirmation which was on 25.3.1994, inasmuch as, the letters of the

petitioner dated 19.1.1995 and 15.3.1995 should be taken as the exercising

of option in terms of the aforesaid Para 6 (3) (b) (ii) of Appendix 7 of CCS

(Pension) Rules.

(ii) The date of absorption as required under the relevant rule should be

the date not of original appointment but the date of confirmation i.e one year

should be counted from 25.3.1994 and not from 24.6.1982.

(iii) Petitioner had deposited the CPF amount received from REC,

Kurukshetra with the respondent no.2 way back on 16.7.1997 as per the

directions of respondent no.2, and therefore, respondent no.2 now cannot

claim violation of Para 6 (3) (b) (ii) of Appendix 7 of CCS (Pension) Rules.

(iv) Petitioner is entitled to benefit of Para 6 (3) (b) (ii) of Appendix 7 of

CCS (Pension) Rules because, other persons who were not confirmed,

namely Professors P. Kunde and S.K.Majumdar, have received the benefits

of pension payment although they retired with temporary status i.e it is

argued that if persons with temporary status can get the benefits then the

petitioner should be similarly placed and he should be given the benefit.

5. In my opinion, in the facts of the present case, it cannot be said that

petitioner has acted in accordance with and complied with the relevant Para

6 (3) (b) (ii) of Appendix 7 of CCS (Pension) Rules inasmuch as, for acting

in terms of this relevant provision it was necessary that petitioner should not

have got credited to his account and taken benefit of CPF amount from the

earlier employer- REC, Kurukshetra. Admittedly, the petitioner received the

CPF amount of Rs. 32,012/- from the REC, Kurukshetra and which therefore

is in violation of the relevant provision because para 6 (3) (b) (ii) of

Appendix 7 of CCS (Pension) Rules requires that the person who leaves an

earlier organization before joining the Central Government should not

receive CPF amount from his earlier employer and the said CPF amount

must be directly paid by the autonomous organization to the Central

Government. Since in the present case, petitioner has received the amount

from the earlier employer towards CPF contribution, thereafter, merely

because the amount is sought to be deposited with the Central Government

will not mean that the action of the petitioner is in terms of Para 6 (3) (b) (ii)

of Appendix 7 of CCS (Pension) Rules and thus this aspect itself in my

opinion disentitles the petitioner to claim benefit of Para 6 (3) (b) (ii) of

Appendix 7 of CCS (Pension) Rules. It is important to note that petitioner

after all has enjoyed the benefit of receiving the CPF amount from the

Regional Engineering College, Kurukshetra, Haryana till 16.7.1997 when

the amount was deposited with the respondent no.2. This period would be

probably of 15 years because petitioner left REC, Kurukshetra in 1982 in

around when he would have received the CPF amount and it is only in 1997

that the amount was deposited with respondent no.2.

6. I also cannot agree with the argument urged on behalf of the petitioner

that because the respondent no.2 in terms of its letters and directions asked

the petitioner to deposit the CPF amount with the respondent no.2, therefore,

the respondent no.2 is estopped from questioning the non-compliance of

Para 6 (3) (b) (ii) of Appendix 7 of CCS (Pension) Rules. In my opinion, if I

allow this Court‟s imprimatur to violation of the relevant provision of Para 6

(3) (b) (ii) of Appendix 7 of CCS (Pension) Rules in this case only on the

ground that some officers have deliberately or by mistake caused violation

of the relevant provision by asking the petitioner to deposit the CPF amount

which was received by the petitioner from his erstwhile employer-

organization with the Central Government, the same will cause an

entitlement to different persons to violate this specific provision and yet

claim entitlement to join services of a past employer with the present

employer. I therefore cannot permit this plea of estoppel raised by the

petitioner in the face of categorical language of Para 6 (3) (b) (ii) of

Appendix 7 of CCS (Pension) Rules.

7. Therefore, even independently of any other arguments, which have

been urged by the petitioner, the very fact that petitioner received from his

erstwhile employer the CPF contribution in violation of Para 6 (3) (b) (ii),

the same will disentitle the petitioner to join his past services of REC,

Kurukshetra with the services rendered with the Central Government.

8. For the sake of arguments now let us assume that there is no violation

of Para 6 (3) (b) (ii) of Appendix 7 of CCS (Pension) Rules because the

action of the petitioner in receiving the CPF amount from his erstwhile

employer has been condoned by the petitioner asking to deposit the amount

with the respondent no.2, let us then examine as to whether petitioner has

exercised his option within one year from his date of confirmation and as to

whether the period of one year does not start from the original date of

absorption of the petitioner with the respondent no.2.

To this extent I think the petitioner is right in contending that

petitioner should exercise the option only within one year of the date of

confirmation. This is because in the cases of Professors P. Kunde and

S.K.Majumdar the respondent no.2 has accepted the exercise of option on

21.7.1983 and 26.8.1992 respectively, although, these persons joined the

respondent no.2 on 28.7.1974 and 5.2.1975 respectively. Therefore, the

respondent no.2 having taken the date of confirmation of services of

Professors P. Kunde and S.K.Majumdar as the date of absorption for the

purpose of Para 6 (3) (b) (ii) of Appendix 7 of CCS (Pension) Rule,

petitioner will be entitled to similar treatment.

9. Accordingly, now it has to be examined as to whether petitioner has

exercised the option for pension within one year from his date of

confirmation on 25.3.1994. In this regard petitioner relies upon the letter

dated 19.1.1995 sent to the Principal, Engineering College, Kurukshetra,

Haryana, and copy of which was marked to the respondent no.2, and by

which letter petitioner had sought information from Regional Engineering

College, Kurukshetra, Haryana with respect to the period from which

contribution of CPF + interest thereon was made, date up to which interest

on the REC, Kurukshetra contribution has been made etc. Since petitioner

claims that this letter is an exercise of option with the respondent no.2 in

terms of Para 6 (3) (b) (ii) of Appendix 7 of CCS (Pension) Rules, let us

examine this letter and which reads as under:-

"To The Principal Regional Engineering College Kurukshetra-132119

(sub-count in service rendered at REC, Kurukshetra) Sir, Kindly in reference to your office letter No. ACS/2958 dated 15-1- 1995 at the subject cited above. I shall feel obliged if you kindly send the additional information on the following in service rendered at your institute.

1. Period from which college contribution of CPF+ interest thereon was made?

2. Date up to which the interest on the college contribution has been made by your institute and at what rates.

3. Service Certificates for the period 1 served at the REC, Kurukshetra.

4. Gratuity paid to me with dates.

      With kind regards,                        Yours faithfully,
                                                       Sd/-"
                                                (Prof. R.Chandra)
                                                19.1.1995

10. In my opinion, exercise of option in terms of Para 6 (3) (b) (ii) of

Appendix 7 of CCS (Pension) Rules has to be a specific and exhaustive

option and that too it has to be specifically addressed to the employer. There

has to be a request to the employer for joining of services of the past

employer with the present employer-Central Government. In view of the

language of the letter dated 19.1.95, I do not think that respondent no.2 can

treat this letter dated 19.1.1995 of the petitioner as if it was an application

made to or option exercised with the respondent no.2 for pension scheme

because neither there is any language of exercise of the option and nor is this

letter addressed to respondent no.2.

11. Petitioner also places similar reliance upon a calculation sheet dated

15.3.1995 issued by the REC, Kurukshetra to the petitioner, copy of which is

alleged to have been sent to the respondent no.2 that this letter should be

treated as exercise of the option. Though it is not clear from the record

whether this copy was actually received by the respondent no.2 let me for

the sake of argument take it as if this letter has been sent to the respondent

no.2. Once again since this letter dated 15.3.1995 only refers to calculations

and that too by REC, Kurukshetra and therefore I fail to understand how this

letter can be treated as a letter by the petitioner and that too to the respondent

no.2 for exercise of the option in terms Para 6 (3) (b) (ii) of Appendix 7 of

CCS (Pension) Rules.

12. The next letter for exercise of the option which is relied upon by the

petitioner is letter dated 30.6.1995 and which letter can be said in a way to

be the exercise of option and this letter reads as under:

      "No. DCE/CHEM/95/614                            Dated:30/6/95
      PRINCIPAL




                Subject:    Count in service of the period of service
                           rendered at Regional Engineering College,
                           Kurukshetra.
      Sir,

This is to bring to your kind notice that prior to joining the college as Assistant Professor w.e.f. 24/06/82. I had served in various capacities in R.E.C., Kurukshetra w.e.f. 23/11/69 to 23/6/82 details of which are elucidated in letter no. GA-1/5943 dated 9/6/95 (copy enclosed). The information regarding C.P.F.etc. is given in letter no. ACS/2958 dated 15/3/95 (copy enclosed). Keeping the above in view, I am to request that the period of service rendered at R.E.C.Kurukshetra by me be counted and necessary entries be made in my Service Book, Sd/-

(Prof. R. Chandra) Head of Appl. Chem. Dept. However, it may be noted that this letter is dated 30.6.1995 and the

date of confirmation of the petitioner is 25.3.1994 i.e this letter has been sent

one year after the date of confirmation of the petitioner. The argument

urged on behalf of the petitioner that petitioner was totally ignorant of his

confirmation on 25.3.1994 is an argument I would refuse to accept

especially because no rule or any circular was pointed out to me which

required the respondent no.2 to specifically inform the date of confirmation

to an employee. Also, I would like to draw adverse inference against the

petitioner because I do not think it is conceivable that a person who is

confirmed in service would not know for about 3 months thereafter that he

was confirmed. Therefore, the option having been exercised after one year

of confirmation, the same will not be in accordance with Para 6 (3) (b) (ii) of

Appendix 7 of CCS (Pension) Rules. Of course, I must again hasten to add

that I am considering the entitlement of the petitioner to exercise the option,

although I have already held in the earlier part of this judgment that

petitioner is not entitled to exercise option because petitioner received the

CPF amount from his erstwhile employer directly into his account although

the payment of CPF contribution with interest thereon by the erstwhile

employer had to be directly made by the earlier organization to the

respondent no.2 and it was not for the petitioner first to get the amount

credited in his account, enjoy the corpus and returns thereon for a long

period of many years and thereafter pay the amount to respondent no.2.

13. That takes us to the argument urged on behalf of the petitioner that

since Professors Mr. P.Kunde and Mr. S.K.Majumdar have received the

pensionary benefits, although they retired with temporary status, therefore,

the petitioner should also be granted pension because in the absence of

petitioner having been notified his date of confirmation, he should be treated

similarly with Professors Mr. P.Kunde and Mr. S.K.Majumdar. In fact, this

argument urged on behalf of the petitioner has already been dealt with above

that petitioner should be taken to have known his date of confirmation and

therefore, petitioner‟s case would be different from the cases of Professors

Mr. P.Kunde and Mr. S.K.Majumdar who were never confirmed during the

period of their employment and they retired with temporary status with the

respondent no.2. The cases of Professors Mr. P.Kunde and Mr.

S.K.Majumdar are therefore clearly different than the case of the petitioner

on their respective facts.

14. Therefore, in my opinion, the claim of the petitioner that past services

with the erstwhile employer Regional Engineering College, Kurukshetra,

Haryana have to be tagged on to the period of services with the respondent

no.2 for calculations of pension payment by the respondent no.2, is

misconceived for the aforesaid reasons of petitioner directly receiving the

CPF amount from the erstwhile employer and the petitioner not having to

exercise the option within one year of his date of confirmation with the

respondent no.2.

15. Learned counsel for the petitioner sought to place reliance upon

certain observations made by the learned Single Judge of this Court in the

case of K.S.R.Chari Vs. Union of India & Ors. 2011(126) DRJ 371 to

argue that cases of pensioners must be considered sympathetically by

Courts. Reference is invited to the observations of the learned Single Judge

which states that government should adopt a policy that persons who have

also not opted for pension can be allowed to do so now. Of course, the

observations made by the learned Single Judge are entitled to be respected

however ultimately it is the administrators who make the policy and Courts

cannot step into the field of policy making by the government. If the

government has made a particular policy, and which is backed by a specific

CCS Pension Rule, it would be difficult to hold that the person should be

given pension although the requirement of relevant provision has not been

complied with.

16. In view of the above, though there seems to be equities in favour of

the petitioner, who deposited the CPF amount received from his erstwhile

employer with the respondent no.2, however, once it is found that petitioner

has otherwise not acted in terms of the requirement of the relevant provision,

this Court would not be able to give relief to the petitioner in the facts of the

present case.

17. Though the writ petition is therefore dismissed, leaving parties to bear

their own costs, however, considering the bonafide actions of the petitioner

in depositing the CPF amount received from his erstwhile employer with the

respondent no.2 and respondent no.2 also acting thereupon including by

issuing letter dated 12.12.96, I would direct that the appropriate authority in

the respondent no.2 can consider sympathetically as per law any

representation which will be made by the petitioner for grant of pension as

prayed in this writ petition to the petitioner and that there can be a policy

that period of one year should be counted from a specific date of intimation

of confirmation of an employee in the services of the respondent no.2. The

writ petition is accordingly dismissed, subject however to the aforesaid

observations.

SEPTEMBER 12, 2013                             VALMIKI J. MEHTA, J
ib