Smt. N.Pramila Devanand , vs The Government Of India,
2022 Latest Caselaw 6440 Tel

         HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
                             AND
        HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
                     WRIT PETITION No. 10812 of 2018


ORDER: (Per the Hon'ble Sri Justice Abhinand Kumar Shavili)


       This writ petition is filed by the petitioner under Article

226 of the Constitution of India seeking a writ of certiorari by

calling for the records relating to and connected with the

order of the 6th respondent as made in OA.No.1271 of 2013

dated 04.07.2014 rejecting petitioner claim to extend all the

benefits under Pension Scheme with all consequential

benefits and arrears making necessary adjustments while

implementing the Office Memorandum dated 01.09.1998 in

OM No.152-1/79-80/KVS/Budget/Part.II, and quash the

same by holding the same as being illegal, arbitrary and is in

negation of the judgment of the various High Courts as well

treating the petitioner unequal among the equals in violation

of Articles 14 & 16 of the Constitution of India with a

direction to the respondents 1 to 5 to extend all the benefits 2 AKS,J & RRN,J W.P.No.10812 of 2018

under Pension Scheme with all consequential benefits with

arrears making necessary adjustments regarding if any already

paid to the petitioner and also collecting if any excess amount

is paid to the applicant.

2. Heard Sri Rama Rao, learned counsel for the petitioner

and Sri Ajay Kumar Kulkarni, learned Standing Counsel

appearing for the respondents.

3. Learned counsel for the petitioner contended that

petitioner was initially appointed as a primary teacher in

Kendriya Vidyalaya Sangathan (for short "K.V.S") after

rendering considerable length of service, petitioner retired

from service on 30.11.2012 attaining an age of

superannuation. The grievance of petitioner is that the

respondents have launched a pension scheme vide Office

Memorandum dated 01.09.1988 with effect from 01.09.1988

as the petitioner could not opt under the said pension 3 AKS,J & RRN,J W.P.No.10812 of 2018

scheme, the petitioner was continued under the Contributory

Provident Fund scheme, subsequently, petitioner submitted a

detailed representation to the respondents on 16.11.2012, that

is just few days before her retirement, and also submitted

another representation on 24.09.2013, requesting the

respondents to permit the petitioner to opt for the pension

scheme and accordingly pay pension and pensionary benefits.

When the said representations of the petitioner was not

considered by the respondents, petitioner approached the

Central Administrative Tribunal, Hyderabad (for brevity, 'the

Tribunal') by filing OA.No.1271 of 2013 and the Tribunal

vide order dated 04.07.2014 was pleased to dismiss the OA

without appreciating any of the contentions raised by the

petitioner.

4. Learned counsel for the petitioner has drawn the

attention of this Court to a order rendered by the Madras 4 AKS,J & RRN,J W.P.No.10812 of 2018

High Court i.e., WP.Nos.28092 to 28094 of 2015 dated

05.01.2017, wherein the Madras High Court was dealing with

a writ petition arising out of order passed by the Madras

Bench in OA.No.1769 of 2013, dated 31.03.2015, and the

Tribunal was pleased to permit the employees who were

under Contributory Provident Fund (for

short, "CPF") to come to the pension scheme, even though

the employees have not opted for the said pension scheme.

5. Learned counsel for the petitioner has further drawn the

attention of this Court to Para 13 of the said judgment of the

Madras High Court and contented that when pension is more

beneficial to an employee, the employer must permit the

employee to come under pension scheme, and the Madras

High Court has also found by extending pension scheme to

one set of employees and denying the said pension scheme to

another set of employees only on the ground that employees 5 AKS,J & RRN,J W.P.No.10812 of 2018

have not opted to come under pension scheme and dismissed

the writ petition preferred by the Union of India and

therefore contended that, by applying the same analogy, the

case of the petitioner herein also deserves to be considered by

permitting the petitioner to opt for pension scheme from

CPF scheme, but, the Tribunal has dismissed the case without

appreciating any of the contentions raised by the petitioner,

and therefore, prayed this Court that appropriate orders be

passed in the writ petition by directing the respondents to

consider the case of the petitioner in terms of the orders

passed by the Madras High Court in WP.Nos.28092 to 28094

of 2015 dated 05.01.2017 in accordance with law.

6. On the other hand, learned Standing Counsel for the

respondents contended that petitioner never exercised her

option to come under pension scheme and petitioner had

remained in CPF scheme and the Tribunal was justified in 6 AKS,J & RRN,J W.P.No.10812 of 2018

dismissing the OA as petitioner had never exercised any

option to come under pension scheme, therefore, there are

no merits in the writ petition and the same is liable to be

dismissed.

7. This Court having considered the rival submissions

made by both parties, is of the considered view, that similar

issue fell for consideration before the Madras High Court and

the Madras High Court was pleased to dismiss the Writ

Petition i.e., WP.Nos.28092 to 28094 of 2015 dated

05.01.2017, and confirmed the orders passed by the Tribunal

in OA.No.1769 of 2013 dated 31.03.2015, and the Madras

High Court came to a conclusion that an employee can opt

for a pension scheme if it is more beneficial to him by

following the said judgment of Madras High Court.

8. This Court is of the considered view that the present

writ petition can be disposed of by directing the respondents 7 AKS,J & RRN,J W.P.No.10812 of 2018

to consider the representation submitted by the petitioner on

16.11.2012 and 04.05.2013 and consider the same and pass

appropriate orders by duly taking into account the judgment

rendered by the Hon'ble High Court of Madras in

WP.Nos.28092 to 28094 of 2015 dated 05.01.2017 and pass

appropriate orders in accordance with law, within a

reasonable time preferably within a period of two (2) months

from the date of receipt of copy of this order.

9. With these observations, the writ petition is disposed of.

No costs.

10. Miscellaneous applications pending, if any, shall stand

closed.

_______________________ ABHINAND KUMAR SHAVILI, J

__________________________ NAMAVARAPU RAJESHWAR RAO, J

Date: 05.12.2022 8 AKS,J & RRN,J W.P.No.10812 of 2018

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