Delhi High Court
Kendriya Vidyalaya Sangathan vs Manju Sahgel on 15 March, 2021
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : 26th February, 2021
Judgment Delivered on : 12 th March , 2021
+ W.P.(C) 7712/2020 &CM No.25450/2020
KENDRIYA VIDYALAYA SANGATHAN ..... Petitioner
Through: Mr.U.N.Singh, Advocate
Versus
MANJU SAHGEL ..... Respondent
Through: Mr.A.K.Trivedi, Advocate
% Judgment Reserved on : 1st March, 2021
Judgment Delivered on : 12 th March , 2021
+ W.P.(C) 9851/2020 & CM No.31432/2020
KENDRIYA VIDYALAYA SANGATHAN ..... Petitioner
Through: Mr.U.N.Singh, Advocate
Versus
RAMESH CHANDRA AGARWAL ..... Respondent
Through: Mr.A.K.Trivedi, Advocate
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MR. JUSTICE AMIT BANSAL
JUDGMENT
AMIT BANSAL, J.
1. Both the present writ petitions raise similar questions of fact and law
and are therefore being disposed of together by this common judgment. The
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petitions assail orders passed by the Central Administrative Tribunal (CAT),
Principal Bench, New Delhi.
2. Writ Petition (Civil) 7712/2020 impugns the order dated 26th
September, 2019 in OA No. 2743/2018; and Writ Petition (Civil) 9851/2020
impugns the order dated 28th February 2020 in OA No. 1398/2019. Vide
both the impugned orders, the CAT allowed the OA filed by the respondents
herein and have directed that the benefit of the GPF cum pension scheme be
extended to them. Respondents were directed to refund the employers'
contribution along with interest and any other funds received by them under
Contributory Provident Fund (CPF) scheme, which are to be refunded as per
the scheme of the respondent organization.
Brief facts in W.P. (C) 7712/2020
3. Respondent joined Kendriya Vidayalaya Sangathan (KVS) as Primary
Teacher on 19th March, 1979. Subsequently, respondent was appointed to
the post of Post Graduate Teacher (PGT) on direct recruitment basis on 5th
January, 1986 and thereafter, as Principal on direct recruitment basis on 1 st
July, 2002. The respondent retired on attainting age of superannuation as the
Principal on 30th November, 2007. Thereafter, on 26th June, 2018 the
respondent submitted a representation dated 26th June, 2017 for converting
the respondent from CPF scheme to GPF cum pension scheme. The relief
not being granted, the respondent filed OA No. 2742/2018 before the CAT,
which was allowed by the CAT vide the impugned order dated 26th
September, 2019.
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Brief facts in W.P. (C) 9851/2020
4. The respondent joined KVS as PGT on 20th October, 1983.
Subsequently, the respondent was appointed to the post of Principal on
direct recruitment basis on 15th July, 2002. The respondent retired as
Principal on attaining the age of superannuation on 31 st March, 2008.
Thereafter on 1st May, 2017, the respondent submitted a representation for
converting the respondent from CPF scheme to GPF cum pension scheme.
The said relief not being granted, the respondent filed OA No.1398/2019
before the CAT and the same was allowed by the CAT vide impugned order
dated 20th February, 2020.
5. It was the case of the respondents before the CAT that the pension
scheme was implemented by the petitioner with effect from 1 st January,
1986 and after the said date all appointees were deemed to be in the GPF
cum pension scheme and since they were appointed as PGT/Principal on
direct recruitment basis after the said date, they were covered under the GPF
cum pension scheme. The respondents relied upon orders passed by the
CAT in cases of other employees of the petitioners seeking similar relief.
The case before the CAT was contested by the petitioner, KVS by filing a
counter affidavit. It was contended that the petition was highly belated and
that the respondents throughout their employment were issued documents as
per the CPF scheme indicating regular deduction towards contribution to
CPF, based on which the respondents have filed income-tax returns from
time to time.
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6. Vide the impugned orders, the CAT was pleased to hold that since the
appointment of respondents as PGT/Principal was on direct recruitment
basis after the cut-off date, they will be governed by GPF cum pension
scheme. Reliance was placed on previous decisions of the CAT in the case
of O.A. No. 457/2011 Sh. Jhonson P. Jhon vs. Assistant Commissioner
KVS decided vide order dated 22.03.2012 by the CAT Ernakulam Bench,
which was upheld by the Hon'ble High Court of Kerala vide order dated
13.08.2013 in OP (CAT) No. 597/2013, The Deputy Commissioner KVS vs.
Jhonson P. Jhon; as well as order dated 19.09.2016 in OA No. 3112/2013
Hoshiar Singh vs. Union of India by the CAT Principal Bench, wherein the
CAT had distinguished the decision of the Hon'ble Supreme Court in KVS
and Others vs. Jaspal Kaur and another (2007) 6 SCC 13, and granted
relief to the applicants therein on the basis that the applicants were
appointed to the post of Principal in the year 2002 on direct recruitment
basis and at that time GPF cum pension scheme was automatically
applicable to all direct recruitees of various posts in KVS. Accordingly, on
the basis of the decision of the CAT in Hoshiar Singh case (supra) as well
as other orders passed by the CAT in case of identically placed persons, the
CAT was pleased to allow the OA and KVS was directed to extend the
benefit of GPF cum pension scheme to the respondents keeping in view their
appointment as PGT/Principal was on direct recruitment basis and after the
cut-off date. It was further directed that amount already paid to the
respondents will be adjusted.
7. The present petitions have been filed by the petitioner, KVS
impugning the aforesaid orders of the CAT. It was submitted on behalf of
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the petitioner that the representation to convert from CPF to GPF cum
pension scheme was made by the respondents for the first time much after
their retirement. It was further contended that every year documents were
issued to the respondents as per the CPF scheme indicating regular
deduction towards contribution to CPF, based on which the respondents
have filed income-tax returns from time to time, which demonstrate that the
respondents have opted for CPF scheme and not GPF cum pension scheme.
Therefore, the respondents were fully aware that they were under the CPF
scheme and never objected to the same during the tenure of their service.
Reliance was placed on the judgment of the Hon'ble Supreme Court in
Jaspal Kaur case (supra) wherein it was held that merely because original
documents relating to exercise of option was not produced should not be a
ground to ignore other materials to show that the employee had exercised
the option. The petitioner sought to distinguish the order of the CAT in
Hoshiar Singh case (supra) on the ground that the employees had
approached the CAT before their retirement whereas in the present cases the
respondents had approached the CAT much after their retirement. It was
also stated that the fact that respondents were appointed as Principal on later
dates on direct recruitment basis would be irrelevant as their initial
appointment was prior to 1st January, 1986.
8. Counsel for the respondents has placed reliance on the OM dated 1st
September, 1988 issued by the petitioner, KVS, which dealt with change
over of KVS employees from CPF to Pension Scheme. The relevant portion
of the said OM is produced hereinafter:
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"3. All CPF beneficiaries, who were in service on
01.01.1986 and who are still in service on the date of issue
of these orders shall be deemed to have come over to the
GPF cum pension scheme.
3.2 The employees of the category mentioned above will,
however, have an option to continue under the scheme, if
they so desire. The option will have to be exercised and
conveyed to the concerned head of the office/ Principal by
31.01.1989, in duplicate in the form enclosed (one form may
be sent to this office while the other kept with personal
records of the employee concerned) if the employees wish to
continue under the CPF scheme and if no option is received
by the Head of Office/Principal by the above date and in
this office through them by 28.02.1989 the employees will
be deemed to have come over to the Pension Scheme. The
head of the office/Principals are to forward in one lot
options exercised by the employees for retention of CPF
scheme received by them, to reach sangathan's office latest
by 28.02.1989. Where no option to continue under the CPF
Scheme is received by them from any, nil report be sent by
due date viz. 28.02.1989."
9. On behalf of the respondents, it was contended that since, the
respondents did not exercise the option to continue under the CPF scheme,
therefore they were deemed to have come under the GPF cum pension
scheme with effect from 1st January, 1986. Various other similarly placed
employees of the petitioner approached the CAT and were ordered to be
shifted to the pension scheme. It was further stated that pension is a
recurring cause of action and, therefore, law of limitation is not attracted,
reliance being placed on the decision of the Hon'ble Supreme Court in UOI
& others vs. Tarsem Singh (2008) 8 SCC 648. Reliance was also placed on
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the following judgments of Division Benches of this Court, wherein it was
held that employees of KVS should be given benefit of the Pension Scheme
Kendriya Vidyalaya Sangathan & Another vs. V.D. Pandey 2019
SCC Online Del 11655
Kendriya Vidyalaya Sangathan vs. Dr. V D Arya in W.P. (C)
6193/2021, Delhi High Court.
10. Petitioner KVS has placed on record documents evidencing regular
deduction towards CPF with management contribution, such as annual
statements issued to the respondents in each year; Form-16 issued to the
respondents from time to time duly mentioning the CPF deduction made. All
these documents clearly indicate that the respondents were well aware that
they were part of the CPF scheme and not GPF cum pension scheme.
Similar documents were relied upon by the Hon'ble Supreme Court in the
decision in Jaspal Kaur case (supra) to come to the conclusion that in light
of these documents, it was not possible to contend that the employees had
not opted to remain under the CPF scheme.
11. As regards the contention of the respondents, that upon their selection
as PGT/Principal their service began as new entrant and therefore they
would be entitled to be part of the GPF cum pension scheme, the same
cannot be accepted as the respondents had joined the employment of the
petitioner KVS as teachers well before the cut-off date and the said
employment continued without any break of service. Further, if the said
contention of the respondents is to be accepted then the Respondents would
not have fulfilled the minimum length of service required for receiving
pension. Therefore, this contention of the Respondents is self-destructive. It
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may also be relevant to mention here that the respondents superannuated
from service and accepted their retirement dues under the CPF without any
protest or demur. It is almost after 10 years that they made a representation
for the first time for converting them from CPF to GPF cum pension
scheme. The said request not having been considered favourably, the
respondents chose to file OAs before the CAT.
12. As regards the reliance placed by the counsel for the respondents on
the judgment of this Court in V.D. Pandey case (supra), the same would not
be applicable to the facts of the present case as in the said case the
representation was made by the employees before their retirement, whereas
in the present case the representation was made long after their retirement.
Similarly, in the judgment of this Court Dr. V.D. Arya case (supra) the
employees had made a representation to KVS prior to their retirement and
therefore, the said judgment will have no application in the present case.
Similarly, in Hoshiar Singh case (supra), the employees had approached the
CAT before their retirement.
13. The present case is squarely covered by the judgment of the Hon'ble
Supreme Court in Jaspal Kaur case (supra), which was in the context of
KVS teachers like the Respondents herein. In the said case also, KVS could
not produce the original option form exercised by the employee. However,
placing reliance on secondary documents, that clearly establish that the
employee was aware that deductions towards CPF subscriptions were being
made, the Hon'ble Supreme Court held that such secondary documents
clearly establish that the employees had exercised option under CPF scheme
and accordingly, set aside the judgment of the CAT and the High Court.
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Reliance may also be placed on the judgment of the Division Bench of this
Hon'ble Court in Delhi Transport Corporation Vs. Madhu Bhushan
Anand and other connected petitions, 172 (2010) DLT 668 wherein the
Court was seized of the similar issue in the context of employees of DTC
who wanted to shift from CPF scheme to the GPF cum pension scheme. In
the said case also, the employees made representations for shifting from
CPF to GPF cum pension scheme much after they had taken voluntary
retirement (VRS) and upon being unsuccessful approached the CAT.
Distinguishing the judgment of the Hon'ble Supreme Court in Tarsem
Singh case (supra), the Division Bench held that the case of the employees
would be barred under the law of limitation as they had received their full
dues as per the CPF scheme upon their retirement and if they had any
grievance they could have filed legal proceedings within three years of
having received their dues. Accordingly, claim of the employees was
rejected on the ground of limitation as well as delay and laches. The dicta of
the said judgement is squarely applicable in the present case.
14. Accordingly, the present writ petitions are allowed and the impugned
orders of the CAT are set aside.
AMIT BANSAL, J.
RAJIV SAHAI ENDLAW, J.
MARCH 12, 2021/hd
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