Delhi High Court
National Council Of Educational ... vs Krishan Murari Gupta on 16 September, 2016
$~ 47.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8151/2016
% Judgment dated 16 th September, 2016
NATIONAL COUNCIL OF EDUCATIONAL
RESEARCH & TRAINING ..... Petitioner
Through : Mr.R.K. Singh, Adv.
versus
KRISHAN MURARI GUPTA ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE I.S. MEHTA
G.S.SISTANI, J (ORAL)
CM APPL. 33722/2016
1. Exemption allowed subject to all just exceptions.
2. Application stands disposed of.
W.P.(C) 8151/2016
3. Present writ petition has been filed by the petitioner under Articles 226
and 227 of the Constitution of India against the order dated 3.6.2016
passed by Central Administrative Tribunal (hereinafter referred to as
'the Tribunal') by which OA No.119/2014 filed by the respondent
herein was allowed and the petitioner herein was directed to extend all
the benefits of GPF-cum-pension Scheme to the respondent after
making necessary deductions.
4. The necessary facts, which are required to be noticed for disposal of
this writ petition, are that on 27.9.1977 the respondent was appointed as
a Lecturer with the petitioner herein. On 1.5.1987, the Government of
India had issued an Office Memorandum giving an opportunity to the
Government employees for switching over to the GPF Scheme from the
CPF Scheme. The cut-off date for exercising this option was
30.9.1987. It was also specifically provided that in case any employee
did not exercise his option at all, he would be deemed to have opted for
the GPF Scheme and if one wanted to continue under the CPF Scheme,
he or she would have to specifically opt for the CPF Scheme.
5. It is the case of the petitioner that the respondent specifically opted for
the CPF Scheme on 24.9.1987. In the year 1992, the respondent was
promoted as a Reader under the CAS Scheme. In the year 2002, the
petitioner published an advertisement for direct recruitment of
Professors. The respondent along with other internal candidates applied
for the selection. Pursuant to his screening along with other external
and internal candidates, the petitioner was appointed to the post of
'Professor in Education' vide order dated 24.1.2003. At that stage, the
respondent made a representation to the petitioner for exercising his
option under the GPF Scheme, as he was given fresh appointment in
the year 2003. The respondent also brought to the notice of the
petitioner that identically placed persons being, Ms.Pushpa Lata Varma
and Mrs.M. Chandra, had been granted this benefit of GPF Scheme.
The petitioner rejected the request of the respondent, which has led to
the filing of OA 119/2014. The said OA was allowed by the Tribunal
vide the impugned order dated 3.6.2016, which led to the filing of the
present writ petition.
6. Mr.Singh, learned counsel for the petitioners, submits that the Tribunal
has failed to take into account that the respondent in fact continued to
remain an employee of the petitioner having been appointed as a
Lecturer in the year 1977. Counsel further submits that the terms of
appointment of the respondent remained unchanged and, thus, the
respondent having exercised his option of CPF Scheme under the OM
dated 01.05.1987, he cannot change his option on the plea that he has
been given fresh appointment in the year 2003. Counsel also submits
that the premise for making this submission is that the petitioner cannot
be treated as a fresh employee.
7. We have heard learned counsel for the petitioner and also examined the
impugned order passed by the Tribunal. The facts of the case are not in
dispute that in the year 1977 the petitioner was appointed as a Lecturer.
In the year 1987, an Office Memorandum was issued by the
Government for switching over to the GPF Scheme from the CPF
Scheme. The said OM also allowed employees to continue under the
CPF Scheme by specifically opting for it and the cut off date for
exercising this option was 30.9.1987. Accordingly, the respondent
specifically opted for the CPF Scheme. In the year 1992, the respondent
was promoted as Reader. Pursuant to the advertisement published in
the year 2002 for appointment to the post of Professor, direct recruit,
the petitioner was appointed as Professor in Education vide order dated
24.1.2003. At that stage, the respondent made a representation for
exercising his option under the GPF Scheme being a fresh appointee.
The said request was rejected by the petitioner.
8. It may be noticed that the Tribunal, while allowing the OA, has placed
reliance on a decision rendered in the case of A.P. Verma v. NCERT,
WP.(C)8489/2011, and A.K. Sacheti v. NCERT, W.P.(C)8491/2011.
The said writ petitions were allowed by a Division Bench of this Court
after examining the provisions of the Pension Scheme and the fact that
the petitioner herein had acceded to an identical request of one, Sh.M.
Chandra. Paragraphs 10 to 14 of A.P. Verma (supra) and A.K. Sacheti
(supra) read as under:
"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."
9. The aforegoing observations made in A.P. Verma (supra) and A.K.
Sacheti (supra) are fully applicable to the facts of the present case.
10. We may note that no doubt the petitioner was initially appointed as a
Lecturer but he was appointed as a Professor in the year 2003 pursuant
to the advertisement published by the petitioner for direct recruitment
of Professors and he was termed as fresh appointee.
11. We are unable to accept the arguments of the learned counsel for the
petitioner that petitioner was not a fresh appointee for the reasons that
not only a fresh letter of appointment was given to the petitioner, but he
was also put on probation for a period of two years. In case, the
submission, sought to be made by learned counsel for the petitioner
was the understanding of the petitioner itself, then the respondent
would not have been put on probation and a fresh letter of appointment
would not have been issued to him.
12. We may note that not only persons identically placed as the respondent
herein have been allowed to exercise a fresh option but since the
petitioner was previously under the employment of the petitioner that
he has been denied of the choice. Being appointed as Professor, Direct
Recruit, we are of the view that the respondent could have exercised his
option at this stage.
13. We are unable to take a different view than the view taken by the other
Division Bench of this Court in A.P. Verma (supra) and A.K. Sacheti
(supra). Resultantly, we find no merit in this writ petition and the same
is dismissed.
CM APPL. 33721/2016
14. Application stands disposed of in view of the order passed in the writ
petition.
G.S.SISTANI, J
I.S. MEHTA, J
SEPTEMBER 16, 2016
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