Delhi High Court
Dr. S.C. Mahajan & Ors. vs Union Of India & Ors. on 30 April, 2014
Author: Rajiv Shakdher
* THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: 27.03.2014
% Judgment delivered on: 30.04.2014
+ W.P.(C) 5631/2010
N. C. BAKSHI ..... PETITIONER
VERSUS
UNION OF INDIA & ORS ..... RESPONDENTS
+ W.P.(C) 1216/2011
DR. S.C. MAHAJAN & ORS ..... PETITIONERS
VERSUS
UNION OF INDIA & ORS ..... RESPONDENTS
+ W.P.(C) 3631/2011
DR. RAJESH KUMAR SAXENA AND ORS ..... PETITIONERS
VERSUS
SRI VENKATESWARA COLLEGE
AND ANR ..... RESPONDENTS
+ W.P.(C) 3863/2011
DR. PURNIMA GUPTA ..... PETITIONER
VERSUS
SRI VENKATESWARA COLLEGE
AND ANR ..... RESPONDENTS
+ W.P.(C) 5495/2011
DR. SUDESH KUMARI SHAH ..... PETITIONER
VERSUS
SRI VENKATESWARA COLLEGE
AND ORS. ..... RESPONDENTS
+ W.P.(C) 6009/2011 & CM No. 12140/2011
DR. MANGAL NATH ..... PETITIONER
VERSUS
UNIVERSITY OF DELHI AND ORS ..... RESPONDENTS
+ W.P.(C) 5106/2011 & CM No. 10351/2011
SUMAN BALA JAIN & ORS. ..... PETITIONERS
VERSUS
UNION OF INDIA & ORS. ..... RESPONDENTS
+ W.P.(C) 5975/2010 & CM No. 11775/2010
MANGALA PRASAD UPADHYAY ..... PETITIONER
VERSUS
UNION OF INDIA & ORS ..... RESPONDENTS
+ W.P.(C) 5979/2010 & CM No. 11782/2010
KEWAL KRISHAN SHOREE ..... PETITIONER
VERSUS
UNION OF INDIA & ORS ..... RESPONDENTS
+ W.P.(C) 5980/2010 & CM No. 11784/2010
BALRAJ KUMAR ..... PETITIONER
VERSUS
UNION OF INDIA & ORS ..... RESPONDENTS
+ W.P.(C) 5981/2010
CHETANYA MOHAN GUPTA ..... PETITIONER
VERSUS
UNION OF INDIA & ORS ..... RESPONDENTS
+ W.P.(C) 5982/2010 & CM No. 11787/2010
DHARAM PAL GUPTA ..... PETITIONER
VERSUS
UNION OF INDIA & ORS ..... RESPONDENTS
+ W.P.(C) 5985/2010 & CM No. 11793/2010
RAJENDRA PRASAD ..... PETITIONER
VERSUS
UNION OF INDIA & ORS ..... RESPONDENTS
ADVOCATES WHO APPEARED IN THIS CASE:
For the Petitioners : Mr. Tanuj Khurana and Mr. Gaurav Malik,
Advocates in WP(C) 5631/2010, Mr Anil Sapra,
Sr. Adv. with Mr. Saif Mohammad and Mr Harsh
Pathak, Advocates in WP(C) 1216/2011; Mr
Dinesh Goyal & Mr Rupesh Goyal, Advocates in
WP(C) Nos.3631/2011, 3863/2011, 5495/2011;
Mr Shankar Raju, Advocate in WP(C) 6009/2011;
Ms Payal Jain, Advocate in WP(C) 5106/2011; Mr
Virender Ganda, Sr. Adv. with Mr S.K. Giri & Mr
Vipul Ganda, Advocates in WP(C)
Nos.5975/2010, 5979/2010, 5980/2010,
5981/2010, 5982/2010 and 5985/2010
For the Respondents: Mr Mohinder J.S. Rupal, Advocate for the
University of Delhi; Mr Amitesh Kumar, Adv. for
the University Grants Commission; Mr Rajinder
Dhawan & Mr B.S. Rana, Advocates for Sri
Venkateshwara College; Ms Beenashaw Soni,
Advocate for Laxmi Bai College.
CORAM :-
HON'BLE MR JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER, J
1. These are thirteen (13) petitions in all. These petitions are, in a sense,
the first sequel to the batch of petitions, which were heard and reserved for
judgement on 30.01.2014. The lead petition in that batch was numbered as :
WP(C) 1490/2006-1507/2006, titled as: Dr. R.N. Virmani and Ors. Vs.
University of Delhi and Anr.
2. In the batch of petitions, led by, Dr. R.N. Virmani and Ors. Vs.
University of Delhi and Anr., I have rendered a detailed judgement. The
submissions advanced both on behalf of the petitioners and the respondents
have been taken note of. There are, however, two distinctions, which are
notable :-
(i). first, though Union of India was a party in at least some of the
petitions, no arguments were advanced on behalf of the Union of India;
(ii). Second, the captioned batch of writ petitions fall in category-1,
formulated by my predecessor, vide order dated 21.05.2012. The details
with respect to the three categories formulated by this court vide order dated
21.05.2012, have been set out in the judgement delivered by me, in the batch
of petitions, in which the lead petition, as indicated above, was numbered as:
WP(C) 1490/2006-1507/2006, titled as: Dr. R.N. Virmani and Ors. Vs.
University of Delhi and Anr.
3. Suffice it to say, there is consensus amongst the counsels, who
appeared in the captioned batch of writ petitions that, all cases fall within
category-1. Category-1 relates to those cases where employees had
exercised an option to remain under the CPF Scheme; albeit during the
period when extensions granted by the University of Delhi, were operative.
Therefore, in the present lot of writ petitions, all that one is required to
examine is the legal effect of this overt action of the writ petitioners.
3.1 In order to examine the said issue, one would necessarily have to bear
in mind the following details, which are set out in tabular form :-
WP(C) No. & short Total Date of Date of The date on
title number of Retirement filing of which option
petitioners Writ was given for
as arrayed petitions CPF Scheme
5631/2010 1 31.08.2010 16.08.2010 23.12.87
N.C. Bakshi Vs.
Union of India and
Ors.
1216/2011 11 P1 - 31.05.2016 06.12.2010 P1 - 28.02.88
Dr. S.C. Mahajan and P2 - 31.07.2014 P2 - 11.12.87
Ors. Vs. Union of P3 - 31.10.2013 P3 - 27.01.88
India and Ors. P4 - 30.09.2014 P4 - 11.12.87
P5 - 30.09.2015 P5 - 29.02.88
P6 - 20.11.2011 P6 - 28.02.88
P7 - 31.05.2018 P7 - 29.02.88
P8 - 31.05.2016 P8 - 27.01.88
P9 - 30.09.2013 P9 - 27.01.88
P10 - 31.03.2010 P10 - 27.01.88
P11 - 30.04.2004 P11 - 23.12.87
3631/2011 4 P1- 30.05.2015 21.05.2011 P1- 18.01.88
Dr. Rajesh Kumar P2- 30.09.2017 P2- 08.01.88
Saxena and Ors. Vs. P3- 31.03.2019 P3-28.01.88
Sri Venkateshwara P4- 30.06.2020 P4-28.01.88
College and Anr.
3863/2011 1 30.11.2014 30.05.2011 29.01.88
Dr. Purnima Gupta
Vs. Sri
Venkateshwara
College and Anr.
5495/2011 1 31.12.2013 27.07.2011 29.01.88
Dr. Sudesh Kumari
Shah
Vs. Sri
Venkateshwara
College and Ors.
6009/2011 1 31.12.2011 09.08.2011 11.11.87
Dr. Mangal Nath Vs.
University of Delhi
and Ors.
5106/2011 5 P1- 2011 18.07.2011 P1-26.02.88,
Suman Bala Jain and P2- 2014 P2-29.02.88,
Ors. Vs. Union of P3- 2018 P3-27.11.87,
India and Ors. P4- 2017 P4-21.12.87
P5- 2012 P5-17.02.88
5975/2010 1 Retirement due in 28.08.2010 08.10.87
Mangala Prasad
Upadhyay Vs. Union 2024
of India and Ors.
5979/2010 1 2013 28.08.2010 27.01.88
Kewal Krishan
Shoree Vs. Union of
India and Ors.
5980/2010 1 30.09.2010 31.08.2010 01.12.87
Balraj Kumar Vs.
Union of India and
Ors.
5981/2010 1 March 2003 28.08.2010 27.01.88
Chetanya Mohan
Gupta Vs. Union of
India nad Ors.
5982/2010 1 Retirement due in 28.08.2010 28.02.88
Dharam Pal Gupta
Vs. Union of India
and Ors.
5985/2010 1 Retirement due in 28.08.2010 11.12.87
Rajendra Prasad Vs.
Union of India and
Ors.
3.2 The aforementioned details would show that each of the petitioners in
this batch of writ petitions have opted to continue in the CPF scheme though
after the cut-off date i.e., 30.09.1987. In the judgment delivered by me in
the batch of writ petitions, in which the lead petition was numbered as :
WP(C) 1490/2006-1507/2006, titled as: Dr. R.N. Virmani and Ors. Vs.
University of Delhi and Anr., I have held that the provisions of the O.M.
dated 01.05.1987 required a positive option to be given only if, an employee
was desirous of continuing with the CPF Scheme and that too by
30.09.1987. In the event, no positive option was received from an employee
expressing his or her desire to continue with the CPF Scheme then, the
employee stood automatically covered by the Pension Scheme by virtue of
the deeming legal fiction created under the provisions of the O.M. dated
01.05.1987. This conclusion, I had reached after examining the provisions
of O.M. dated 01.05.1987, in particular, clauses 3.1 and 3.2 and the form
appended to it. As noted in the said judgement, this is also the view taken
by the Supreme Court in the case of Union of India and Anr. Vs. S.L.
Verma and Ors., (2006) 12 SCC 53. For the sake of brevity, I am not
detailing out in extenso the rationale provided in the said judgement. The
observations made in the said judgment be read as part of the present
judgement.
4. I may only note that none of the counsels appearing: for University
Grants Commission (UGC), the University of Delhi or the concerned
colleges took a stand which would convey that the cut-off date provided in
O.M. dated 01.05.1987, was not sacrosanct.
4.1 In this context, I had also put to the counsel for the University of
Delhi as to whether the extensions granted qua the cut-off date for exercise
of option of conversion to CPF Scheme, were valid. The counsel for the
University of Delhi took an unambiguous stand that the extensions granted
were not valid. The main thrust therefore of both the counsels for the UGC
as well as the University of Delhi was that the petitions were marred by
delay and latches and, therefore, no relief ought to be granted to the
petitioners. In this behalf, the counsels for the aforementioned respondents
were also supported by the counsels for the concerned Colleges.
4.2 Having regard to the aforesaid stand of the counsels for the UGC,
University of Delhi and concerned Colleges, the only conclusion that I can
come to is that notwithstanding the fact that the petitioners in this batch of
petitions had overtly expressed their desire to continue in the CPF Scheme,
they got automatically covered by the Pension Scheme, once, the cut-off
date of 30.09.1987, was crossed. Therefore, the objection qua delay and
latches cannot be sustained in case of these writ petitioners, save and except,
in those cases where the petitioners received, upon retirement, without
protest (either by filing an action in court or otherwise) their benefits under
the CPF Scheme. As explained in Dr. R.N. Virmani's judgement delay and
latches will not get attracted as the cause of action in these cases if not
continuing, is certainly recurring, each time the record was not corrected.
(read paragraphs 17.3 & 17.4 of Dr. R.N. Virmani's judgment delivered by
me today along with this judgement). The availability of relief to such
petitioners, who collected their CPF benefit without protest, one would
deny, not on the interpretation of the provisions of O.M. dated 01.05.1987,
but on the grounds of equity. The exercise of jurisdiction under Article 226
of the Constitution being a discretionary remedy in such like cases, I would
not be persuaded to exercise my discretion. Furthermore, once CPF benefits
are collected without protest cause of action will decidedly come to an end.
Therefore, the captioned writ petitions are allowed qua all the petitioners
except vis-a-vis the petitioner in WP(C) No. 5981/2010 and, in respect of
petitioner No.11 in WP(C) No.1216/2011.
4.3 As per communication dated 05.05.2009 (appended as annexure P-21
in WP(C) No.5981/2010), the sole petitioner, i.e., Mr C.M. Gupta in the said
writ petition, received his dues as per CPF Scheme, on retirement. The said
petitioner, evidently, retired on 28.03.2006 as per information given in the
said document; the petitioner though avers, in paragraph 2 of the petition,
that he retired in March, 2003. The difference in dates, though unexplained,
will have no impact on the outcome. Accordingly, WP(C) 5981/2010 is
dismissed.
4.4 Similarly, no relief can be granted to petitioner no. 11 (Sh. C.L.
Khanna) in WP(C) No. 1216/2011. As per annexure P-20, appended at
pages 67-68 of the said writ petition, he retired on 30.04.2004 when, all dues
as per CPF scheme were received by him.
4.5 It is made clear though, that conversion to Pension Scheme would be
subject to the employer-respondent being entitled to recoup its contribution
under the CPF Scheme if, not already recouped, with simple interest at the
rate of 8% p.a.
5. The writ petitions and all pending applications are disposed of in the
aforesaid terms. There shall, however, be no order as to costs.
RAJIV SHAKDHER, J.
APRIL 30, 2014
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