Rajasthan High Court - Jodhpur

The Commissioner, Kendriya ... vs Kumudini Pandey on 22 October, 2021

Bench: Vijay Bishnoi, Sudesh Bansal

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

D.B. Civil Writ Petition No. 14158/2019

Gajendra Singh Rathore S/o Shri Dhonkal Singh Rathore, Aged

About 59 Years, B/c Rajput, R/o Plot No. 45-A, Ajit Colony,

Jodhpur, Rajasthan.

----Petitioner Versus

1. Central Administrative Tribunal, Jodhpur Bench, Jodhpur.

2. Kendriya Vidhyalaya Sangthan, Through Its

Commissioner, 18, Institutional Area, Shahid Jeet Singh

Marg, New Delhi.

3. Deputy Commissioner, Kendriya Vidhyalaya Sangthan,

(Regional Office), 92, Gandhi Nagar Marg, Bajaj Nagar,

Jaipur.

----Respondents Connected With

D.B. Civil Writ Petition No. 2815/2019

1. The Commissioner, Kendriya Vidyalaya Sangathan, 18,

Institutional Are, Shaheed Jeet Singh Marg, New Delhi-

110016.

2. The Joint Commissioner, Kendriya Vidyalaya Sangathan,

18, Institutional Are, Shaheed Jeet Singh Marg, New Delhi

- 110016

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3. The Deputy Commissioner, Kendriya Vidhyalaya

Sangathan Regional Office, 92, Gandhinagar, Marg,

Bajajnagar, Jaipur.

4. Principal, K.V. No. 1, Air Force, Jodhpur (Rajasthan).

----Petitioners Versus

1. Smt. Kumudini Pandey W/o Shri R.P.pandey, Aged About

60 Years, By Caste Pandey, R/o C-17, Arvind Nagar, Air

Force Area, Ratanada, Jodhpur (Rajasthan).

2. Central Administrative Tribunal, Jodhpur, Through Its

Registrar, Near Rajasthan High Court Campus, Jodhpur.

----Respondents

For Petitioner(s) : Mr. Himanshu Shrimali

For Respondent(s) : Mr. Avinash Acharya, Mr. Rajendra Katariya Mr. Mahendra Singh Godara

HON'BLE MR. JUSTICE VIJAY BISHNOI HON'BLE MR. JUSTICE SUDESH BANSAL

Judgment / Order

22/10/2021

[PER HON'BLE VIJAY BISHNOI, J.]

These writ petitions have been filed by the

petitioners assailing the orders dated 30.8.2019 and

11.10.2018 passed by the Central Administrative

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Tribunal, Jodhpur Bench, Jodhpur (for short 'the CAT') in

OA Nos.290/00371/2018 and 290/00411/2017

respectively. Vide judgment dated 30.8.2019, the CAT

has dismissed the OA preferred by petitioner - Gajendra

Singh Rathore, whereas vide judgment dated 11.10.2018

has allowed the OA preferred by respondent - Smt.

Kumudini Pandey.

Brief facts of the case are that petitioner - Gajendra

Singh Rathore was appointed as Trained Graduate

Teacher (Physical and Health Education) on 1.3.1985 and

respondent - Smt. Kumudini Pandey was appointed as

Primary Teacher on 10.7.1981 in the Kendriya Vidhyalaya

Sangathan. At the time of their joining, Contributory

Provident Fund Scheme (for short 'the CPF Scheme') was

in vogue under the Kendriya Vidhyalaya Sangathan, as

such, both became members of the CPF Scheme.

On 1.5.1987, the Government of India issued an

Office Memorandum and as per the said Memorandum,

Central Government employees who were members of

the CPF Scheme were given an option to continue to

remain members of the CPF Scheme and for that

purpose, they were required to exercise a positive option

to the said effect. The above referred Office

Memorandum also clarifies that those employees who did

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not submit any option would be deemed to have switched

over to the Pension Scheme. Pursuant to the Government

of India Memorandum dated 1.5.1987, the Kendriya

Vidhyalaya Sangathan issued separate Memorandum

dated 1.9.1988 on similar terms.

As per the above referred two Memorandums, the

employees of the Kendriya Vidhyalaya Sangathan who

desired to continue to be members of the CPF Scheme

had to exercise a positive and affirmative option to

continue to be a member of the CPF Scheme, however,

they were not required to exercise a positive option to

switch over to the Pension Scheme and all those

employees who did not exercise a positive option to

continue to be a member of the CPF Scheme would be

deemed to be members of the Pension Scheme.

Admittedly, petitioner - Gajendra Singh Rathore and

respondent - Smt. Kumudini Pandey did not submit any

option to continue to be members of the CPF Scheme

pursuant to the Office Memorandum dated 1.9.1988

issued by the Kendriya Vidhyalaya Sangathan, however

later on, when they realized that the money deducted

from their salary was being credited to the CPF account

and not to the General Provident Fund Account, they filed

representations highlighting the fact that neither of them

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exercised the positive option to continue to be members

of the CPF Scheme and when their representations were

not succeeded, both of them approached the CAT by way

of filing separate OAs.

The OA preferred on behalf of respondent -

Smt. Kumudini Pandey is allowed by the CAT vide order

dated 11.10.2018 with a direction to the Kendriya

Vidhyalaya Sangathan to convert Smt. Kumudini Pandey

as pensioner under GPF Scheme in pursuance of the

Office Memorandum dated 1.9.1988 and to pay her the

revised pension including the arrears for which she

became eligible by such conversion with a further

direction to the respondent - Smt. Kumudini Pandey to

refund the amount received by her towards the CPF

Scheme with 9% per annum interest from the date when

she received till the date of payment. The CAT has further

clarified that the arrears of pension payable to

respondent - Smt. Kumudini Pandey under the GPF

Scheme may be adjusted towards refund of CPF amounts

received by her with interest.

However, the OA filed by petitioner - Gajendra Singh

Rathore is dismissed vide order dated 30.8.2019 while

observing that since he was aware of the fact that he

being governed by the CPF Scheme since 1997, his

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prayer to consider his case under the GPF cum Pension

Scheme cannot be accepted. The CAT has also observed

that as petitioner - Gajendra Singh Rathore had

exercised positive option towards CPF Scheme when he

changed his nominations in the year 1997 nominating his

wife and son for distributing and crediting the amount of

CPF in the event of his death, it clearly demonstrates that

he had actually exercised his option in favour of CPF

Scheme.

Learned counsels appearing for petitioner - Gajendra

Singh Rathore and respondent - Smt. Kumudini Pandey

have submitted that the controversy involved in these

writ petitions is squarely covered by the Division Bench's

judgment of this Court dated 4.1.2018 passed in DBCWP

No.5976/2017 - M.S. Panwar Vs. Central

Administrative Tribunal & Ors. and DBCWP

No.10662/2016 - S.P. Tak Vs. the Central

Administrative & Ors., wherein this Court has held that

the Office Memorandum dated 1.9.1988 issued by the

Kendriya Vidhyalaya Sangathan had a specific stipulation

that those who desired to continue to be members of the

CPF Scheme would have to exercise a positive option to

remain as members of the CPF Scheme and that in the

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absence of any option they would be deemed to be

members of the Pension Scheme.

It is argued that it is an admitted position that

petitioner - Gajendra Singh Rathore and respondent -

Smt. Kumudini Pandey had never filed any option to

remain members of the CPF Scheme and in such

circumstances, they would be deemed to be members of

the Pension Scheme. It is also argued that the judgment

dated 4.1.2018 passed by the Division Bench of this

Court in M.S. Panwar and S.P. Tak's case (supra) was

challenged by the respondent - Kendriya Vidhyalaya

Sangathan before the Hon'ble Supreme Court by way of

Special Leave Petition (Civil) No.21776/2019 - The

Commissioner Kendriya Vidyalaya Sangathan & Anr. Vs.

S.P. Tak, however, the said Special Leave Petition came to

be dismissed by the Hon'ble Supreme Court vide order

dated 26.7.2019.

Per contra, learned counsel appearing for the

respondent - Kendriya Vidhyalaya Sangathan has argued

that the CAT has not committed any illegality in passing

the order dated 30.8.2019 in OA No.290/00371/2018

preferred by petitioner - Gajendra Singh Rathore and has

rightly dismissed the aforesaid OA. It is further argued

that the CAT has grossly erred in allowing the OA

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No.290/00411/2017 preferred by Smt. Kumudini Pandey

vide order dated 11.10.2018 ignoring the fact that from

the date of Office Memorandum i.e. 1.9.1988, she

continued to be governed by the CPF Scheme and

allowed deductions towards CPF contribution with

management contribution and for the first time raised

objection about the same in the year 2015, therefore, the

OA preferred by her before the CAT was ought to be

dismissed. It is, thus, prayed that the order dated

11.10.2018 passed by the CAT may kindly be set aside.

The Division Bench of this Court in M.S. Panwar

and S.P. Tak's case (supra) has held as under :-

"4. Shri S.P.Tak joined service as Physical Education Teacher (P.E.T.) on 01.03.1985. Shri M.S. Panwar joined service as Physical Education Teacher (P.E.T.) on 14.09.1981.

Employer was Kendriya Vidhyalaya Sangathan. At that time a Contributory Provident Fund Scheme (hereinafter referred as 'the CPF Scheme') was in vogue under the Kendriya Vidyalaya Sangathan and thus both became members of the CPF Scheme. On 01.05.1987 the Government of India issued an Office Memorandum, as per which all Central Government employees who were members of the CPF Scheme were given an option to continue to remain members of the CPF Scheme by exercising a positive option to said effect. As per the Office Memorandum those who did not submit any option would be deemed to have switched over to the Pension Scheme.

5. Following the Government of India Memorandum, Kendriya Vidyalaya

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Sangathan issued a Memorandum dated 01.09.1988 in pari materia terms.

6. Meaning thereby, employees of the Kendriya Vidyalaya Sangathan who desired to continue to be members of the CPF Scheme had to exercise a positive and affirmative option to continue to be a member of the CPF Scheme. They were not to exercise a positive option to switch over to the Pension Scheme. As per the Office Memorandum, those who did not exercise a positive option to continue to be a member of the CPF Scheme would be deemed to be members of the Pension Scheme.

7. Since the two gentlemen realised in the year 2006 that money deducted from their salary was being credited to the CPF account and not the General Provident Fund account they made representations bringing out the position as afore-noted and highlighting the fact that neither of them exercised the positive option to continue to be members of the CPF Scheme. Their requests were turned down. Both approached the Central Administrative Tribunal.

8. Case of the writ petitioners was pleaded in aforesaid terms.

9. The respondents accepted that the two employees had not submitted any option pursuant to the Circular dated 01.09.1988 had opted for the CPF Scheme, and that, Kendriya Vidhyalaya Sangathan did not have any letter exercising option by the two employees. However, stand taken was that while issuing Form 16 for purposes of showing income tax deducted at source, it was indicated to the two gentlemen that money deducted from their salary was being credited in the CPF account. The Kendriya Vidyalaya Sangathan also relied upon a Circular dated 22.02.2006 as per which employees who had entered service before

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31.12.2003 and were governed by the CPF Scheme were not eligible to switch over to the Pension Scheme. Kendriya Vidhyalaya Sangathan relied upon a decision of the Supreme Court reported in AIR 2014 SC 3655 Rajasthan Rajya Vidhyut Vitran Nigam Ltd. Vs. Dwarka Prasad Koolwal & Ors.

10. The two impugned decisions do not deal with the effect of the two writ petitioners not having exercised a positive option to remain members of the CPF Scheme as was contemplated by the Office Memorandum dated 01.09.1988. The decisions notice the Form 16 issued by the Department to the writ petitioners and holds that the writ petitioners were aware that the Department was treating them as members of the CPF Scheme. Representations made by the two in the Year 2006 were held to be of no consequence in view of the Circular dated 22.02.2006 issued by the Ministry of Human Resource Development. The Tribunal also held that as Supreme Court decision in Dwarka Prasad's casethe two writ petitioners would not be entitled to any relief.

11. As regards the decision of the Supreme Court in Dwarka Prasad's case is concerned, suffice it to state it considered a policy decision taken by Rajasthan Rajya Vidhyut Vitran Nigam Limited as would be evidenced by Paragraph 61 of the decision. The Nigam had required a positive option to be exercised to switchover to the Pension Scheme. The Tribunal over looked that the Office Memorandum dated 01.09.1988 had stipulation to the contrary. The stipulation was that those who desired to continue to be members of the CPF Scheme would have to exercise a positive option to remain as members of the CPF Scheme and that in the absence of an option they would be deemed to be a members of the Pension Scheme.

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12. In the decision reported as 2006 (12) SCC 53 Union of India& Anr. Vs. S.L. Verma & Ors. the Supreme Court has taken the view as propounded by the writ petitioners.

13. Thus, in that view of the matter the writ petitioners ought to have succeeded.

14. But since the Tribunal has looked into the Income Tax Return Form 16 as evidence of petitioners knowledge that they were being treated as members of the CPF Scheme, suffice it to state that a Government Servant and also employees of Kendriya Vidyalaya Sangathan who are members of the Pension Scheme have deductions effected under the General Provident Fund account and thus said deductions made, if wrongly credited to the General Provident Fund, would not disentitle the petitioners to the benefit of the Office Memorandum dated 01.05.1987.

15. As regards the Circular dated 22.02.2006, it concerns those employees who had chosen to be members of the CPF Scheme and post 01.01.2004 wanted to shift over to the Pension Scheme. The Office Memorandum prohibits the same for the reason w.e.f. 01.01.2004 the Pension Scheme has not been made applicable by the Central Government to the employees who entered service after 01.01.2004.

16. The writ petitions are allowed. Impugned decisions passed by the Central Administrative Tribunal are quashed and theOriginal Applications filed by the writ petitioners are allowed, in that, the respondents shall treat the petitioners as members of the CPF Scheme."

(Emphasis supplied)

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Admittedly, petitioner - Gajendra Singh Rathore and

respondent - Smt. Kumudini Pandey have not submitted

any option to remain under the CPF Scheme pursuant to

the Office Memorandum issued by the Kendriya

Vidhyalaya Sangathan on 1.9.1988 and in such

circumstances, as per the stipulation given under the

aforesaid Office Memorandum, they would be deemed to

be the members of the Pension Scheme.

We are of the view that the controversy involved in

these writ petitions is squarely covered by the decision of

this Court rendered in the case of M.S. Panwar and

S.P. Tak (supra).

Resultantly, the DBCWP No.2815/2019 preferred by

petitioner - The Commissioner, Kendriya Vidhyalaya

Sangathan & Ors. is dismissed and the order dated

11.10.2018 passed by the CAT in OA No.290/00411/2017

is affirmed, however, the DBCWP No.14158/2019

preferred by petitioner - Gajendra Singh Rathore is

herePby allowed. The impugned order dated 30.8.2019

passed in OA No.290/00371/2018 is set aside and the