Full Text
HIGH COURT OF DELHI
JUDGMENT
PRANAB KUMAR BHATTACHARYA & ORS ..... Petitioners
For the Petitioners : Ms. Rashmi Gogoi, Mr. Tanmaya Mehta and
Mr. Yash Gaur, Advocates.
For the Respondents : Mr. Anurag Dayal Mathur, Advocate for R-1.
Mr. Rajesh Gogna, CGSC alongwith Mr. Nishant Sharma and Mr. Nipun Jain, Advocates.
[ The proceeding has been conducted through Hybrid mode ]
1. This is a writ petition under Article 226 of the Constitution of India, 1950, inter alia, seeking the following reliefs:- “(a) declare that the petitioners on their retirement would be entitled to the benefits of pensionary scheme under ordinance XX-G statute 20-A, retirement benefit rules. (b) issue writ of mandamus or in nature of mandamus directing the respondent no.1 to pay the pensionary benefits under Statute 28-A retirement benefit rules to the petitioners on their retirement
(c) issue writ of mandamus or in nature of mandamus directing the respondent no.3 to reimburse all the payment made by the respondent no.1 to the petitioners on account of pensionary benefits on their retirement.
(d) pass any such order(s) or direction (s) as this
Hon’ble Court may in the facts and circumstances of the present case deem fit & proper in favour of the petitioner and against the Respondent and (e) Allow the present writ petition with costs.”
2. The facts germane and shorn of unnecessary details as culled out from the petition are enumerated as under: a) The respondent no.2/Agriculture Economic Research Centre (herein after referred to as “the AERC”) was established in the year 1954 through letter of the then Ministry of Food & Agriculture, Government of India as an independent institution at Delhi School of Economics. b) Vide Executive Council Resolution No.32 dated 22.04.1960 it was decided by the respondent no.1/Delhi University (hereinafter referred to as “DU”) that the respondent no.2/AERC shall hence forth function as a separate centre under General Administrative Control of the Vice Chancellor, with a Director, who would be its incharge. c) The petitioner no.1 was appointed as Research Investigator by the respondent no.2/AERC on 07.12.1970; petitioner no.2 was appointed as Research Investigator by the respondent no.2/AERC on 22.09.1972; petitioner no.3 was appointed as Technical Assistant by the respondent no.2/AERC on 19.11.1977; and petitioner no.4 was appointed as Technical Assistant by the respondent no.2/AERC on 07.10.1983. d) It is the case of the petitioners, that since the inception of the respondent no.2/AERC, the CPF-cum-Gratuity Scheme has been applicable to its staff. The Deputy Director of the respondent no.2/AERC wrote a letter dated 27.08.1974 to the Under Secretary of the respondent no.3/UoI seeking permission of the respondent no.2/AERC for implementation of Statute 28-A (with Appendices A & B) of the respondent no.1/DU pertaining to retirement benefit rules in the respondent no.2/AERC. e) The petitioners stated that the respondent no.3/UoI vide letter dated 24.11.1975 informed the respondent no.2/AERC that the Government of India has approved the extension of Statute 28-A (with Appendices A & B) of the respondent no.1/DU to the staff of the respondent no.2/AERC on the lines of the Delhi University Rules and to claim from the Ministry of Agriculture and Irrigation, the amount of gratuity due in a particular year in the yearly budget. f) It is the case of the petitioners that the respondent no.2/AERC by letter dated 19.12.1975 addressed to the Assistant Registrar (Pension), University of Delhi informed that the respondent no.3/UoI has approved the extension of Statute 28-A (with Appendices A & B) to the staff of the respondent no.2/AERC. It is submitted that respondent no.2/AERC requested the Assistant Registrar (Pension) of respondent no.l/DU to let them know if fresh option forms would be required to be filled up by the staff before allocating final CPF account numbers to them. g) It is the case of the petitioners that the Assistant Registrar (Pension) of the respondent no.l/DU wrote back vide letter dated 12.02.1976 to the Deputy Director of the respondent no.2/AERC that options already exercised by the staff of the respondent no.2/AERC have been accepted and kept in the record and that there was no need to invite fresh options from them. It was also stated that the case of the members of the staff wishing to revise their options of CPF cum Gratuity Scheme to GPFcum-Pension with Family Pension Scheme could be considered only when another opportunity was granted by the Executive Council on receipt of their commission report on retirement benefit from the University Grants Commission. It was further stated that the decision of the Executive Council and last date fixed for this purpose could be communicated to them and to be brought to the notice of the staff of the respondent no.2/AERC. h) The petitioners submitted that the Director of the respondent no.2/AERC circulated a notice dated 04.02.1978 asking for revised option for GPF-Cum-Pension-Cum-Gratuity Scheme with Family Pension Scheme and asked the staff of the respondent no.2/AERC to revise their option, if they so desire and submit their options to the i) The petitioners claim that they had exercised their option for GPF- Cum-Pension-Cum-Gratuity Scheme. It is submitted that those employees who joined the respondent no.2/AERC, only CPF-Cum- Gratuity Scheme was available. This is clear from a letter dated 12.09.1989 of the respondent no.2/AERC written to respondent no.1/DU on the issue of “Switching over to GPF-Cum-Pension-Cum- Gratuity Scheme”. j) It is the case of the petitioners that vide letter dated 15.05.1985, the Director of Economics & Statistics, Ministry of Agriculture & Rural Development to Dr. H. Laxminaryan, Director of AERC, University of Delhi sought implementation of the recommendation of the Review Committee for AERC. Subsequently, the respondent no.2/AERC was integrated with the respondent no.1/DU under Ordinance XX- G. k) The petitioners stated that after integration of the respondent no.2/AERC, the respondent no.1/DU allowed GPF Account Numbers to the staff joining the respondent no.2/AERC newly such as to Dr. D.P.Chaudhary. l) When the respondent no.2/AERC received notification dated 06.09.1989 from the respondent no.1/DU on “Switching over to GPF- Cum-Pension-Cum-Gratuity Scheme”, Dr. D.P. Chaudhary wrote back stating that this option was not yet available to the staff of the respondent no.2/AERC. m) The letter dated 12.09.1989 of the respondent no.2/AERC addressed to the respondent no.1/DU is indicative that those employees who joined the respondent no.2/AERC after 31.03.1978 were told in clear terms that only CPF-cum-Gratuity Scheme was available to them. n) The respondent no.1/DU again wrote on 13.03.1990 to the respondent no.2/AERC requesting it to send the consent of the petitioners for disbursement of pension by the respondent no1/ DU. o) It is the case of the petitioner that the respondent no.3/UoI vide notification dated 21.05.1990 declared AERC’s as permanent institutions of the Universities that they were attached to. p) The respondent no.3/UoI sent a letter dated 24.04.1992 to the respondent no.2/AERC stating that it was not possible to extend the pension scheme to the respondent no.2/AERC or any other autonomous body. q) The petitioners stated that the respondent no.3/UoI sent last communication dated 17.07.2002 to the respondent no.1 and 2 expressing inability to introduce pension scheme in the respondent no.2/AERC. r) Vide judgement dated 03.01.2003, passed in Civil Misc. Writ Petition No. 44050/2000 titled “Smt. Pratibha Bose vs. Union of India & Ors”, the learned single Judge of the High Court of Allahabad directed payment of pension and other post retiral benefits including arrears of pension to employees of AERC at Allahabad, equivalent to that being paid to the Personal Assistant of Allahabad University. s) The petitioners made representation dated 30.07.2003 to the respondent no.1/DU for extending the benefit of pension scheme to them. Since there was no response from the respondent no.1/DU, the petitioners filed the present petition. At the time of filing the present writ petition, the petitioners were still in employment.
CONTENTIONS OF THE PETITIONERS:-
3. Ms. Rashmi Gogoi, learned counsel for the petitioners at the outset, submitted that the petitioners are ex-employees of the respondent no.2/AERC which had become an integral part of the respondent no.1/DU in the year
1987. She stated that with effect from 1987, the respondent no.2/AERC integrated with respondent no.1/DU under the Ordinance XX-G. According to her, the issue in the present petition is qua the rights/entitlement of the petitioners of opting for the GPF cum Pension Scheme in place of CPF which has already been resolved by this Court vide order dated 01.09.2016. She further submitted that the only issue which needs adjudication is, as to who is to bear the liability of funds, amongst the respondents.
4. Learned counsel submitted that the principal bone of contention is the denial of the option to switch over to the GPF cum pension scheme to the petitioners and other similarly situated persons at the respondent no.2/AERC. The respondent no.2/AERC has gradually been integrated into the respondent no.1/DU. Initially it was inducted as a separate center under the administrative control of the Vice Chancellor. Subsequently, Statute 28-A of the respondent no.1/DU was extended to the centre in 1975. She further submitted that in July 1987, the respondent no.2/AERC was declared a Delhi University Maintained Institution under Ordinance XX-G. The staff of the respondent no.2/AERC were to be treated at par with the regular employees of the respondent no.1/DU. She submitted that there is no reason to deny them the entitlement to switch over to the GPF cum Pension Scheme as was made available to other regular employees of the respondent no.1/DU. The stand adopted by the respondent no.1/DU and the government would make it clear that they are only attempting to transfer the responsibility to each other.
5. Ms. Gogoi, learned counsel submitted that the discrimination is apparent from the fact that in a similarly situated institute, that is, the Patel Chest Institute, which is also under the respondent no.1/DU but funded by the Government of India (though by a different Ministry), had allowed its employees the option of the GPF cum Pension Scheme.
6. Learned counsel for the petitioners then referred to the judgement of this Court in Shri Radharanjan Pattanaik & Ors vs. Union of India & Ors, W.P.(C) 8032/2009 decided on 13.05.2013, which was subsequently upheld by the Division Bench in Union of India & Ors vs. Radharanjan Pattanaik & Ors, LPA 677/2013 decided on 16.09.2013. She further submitted that aggrieved by this, the Union of India had approached the Supreme Court by way of SLP No. 8183/2015. It is claimed that vide the judgement dated 08.02.2018, Supreme Court dismissed the said SLP and upheld the view taken by the learned Single Judge of this Court. She fairly stated that the present issue is slightly different from afore-referred judgement inasmuch as in the present case no Memorandum of Understanding (hereinafter referred to as ‘MoU’) was executed between the UoI and the DU leaving doubt as to which of the respondents would be liable to fund the pension dues, if at all.
7. She submitted that prior to the integration, the respondent no.3/UoI had set up a Review Committee to look into and implement the merging of the Research Centers (including AERC) with their respective universities. On 15.05.1985, the respondent no.3/UoI wrote to the Director of the respondent no.2/AERC informing him that the Review Committee’s recommendations had been considered and agreed to, subject to certain conditions. Perusal of the said recommendations would make it evident that the pith and substance of the MoU, taken note of in the above judgments, was incorporated therein. Premised on the above, she urged that the non-execution of a MoU between DU and UoI, would neither disentitle the petitioners of their Fundamental right of Equality under Article 14 of the Constitution of India nor its existence be a precondition for grant of pension.
8. Learned counsel then drew attention of this Court to the OM dated 01.05.1987 issued by the respondent no.3/UoI. According to her, the OM explicitly stated that all CPF beneficiaries, who were in service as on 01.01.1986 and who are still in service on the date of issue of these orders, will be deemed to have come over to the Pension Scheme. This Office Memorandum was subsequently approved by the respondent no. 1/DU and directions were issued for adoption of the same. Thereafter, in the year 1990, several employees of the respondent no. 2/AERC were infact allowed to exercise their rights and subscribe to either the CPF and/or GPF scheme as per their choice. Meanwhile, by notification dated 21.05.1990, the respondent no.2/AERC was declared as a permanent institute. She submitted that thereafter, the respondent no.3/UoI intimated the respondent no.2/AERC that it was not possible to extend the pension scheme to the respondent no.2/AERC and other autonomous bodies and the respondent no.1/DU also refused to help the respondent no.2/AERC. Then, on 21.01.2000, the respondent no.2/AERC infact wrote to the respondent no.3/UoI seeking a clarification on whether the requirement of signing an MoU had been waived in this case especially since they were already a maintained institute of the respondent no. 1/DU and had been integrated with respondent no. 1/DU in the year 1987 itself and she further submitted that there was no response to such a communication, till date.
9. Learned counsel for the petitioners concluded her arguments by submitting that Radharanjan (supra) passed by the Supreme Court is applicable to the present case too and non granting of such right to the petitioners in the recent case would be a gross abuse of their fundamental rights, especially in light of the fact that several similarly placed ex-employees are already enjoying such benefits from the respondents and also similarly placed institutes like Patel Chest Institute under respondent no.1/DU but funded by respondent no.3/UoI also allow their employees to exercise their option of opting for the GFP cum Pension Scheme.
CONTENTIONS OF THE RESPONDENT NO.1/DU:-
10. Mr. Anurag Mathur, submits that DU has always been a disbursal authority so far as the salaries and other emoluments are concerned of the staff of AERC Delhi unit. Even according to the recommendations of the Review Committee for the respondent no.2/AERC and the Acceptance letter dated 15.05.1985 by the respondent no.3/UoI coupled with Ordinance XX-G, the entire financial burden of discharging the financial liabilities arising out of salaries etc., are to the account of the respondent no.3/UoI. On that basis, he stated that the financial burden which may arise out of pension, if so directed by this Court, may be to the account of the Union of India. In case, such directions are passed to the respondent no.3/UoI, and the same being deposited with respondent no.1/DU, the said pension would be disbursed by the respondent no.1/DU to the petitioners.
CONTENTIONS OF RESPONDENT NO. 3/ UoI:
11. Mr. Rajesh Gogna, learned CGSC refers to the written submissions placed on record in support of his contentions. However, very fairly Mr. Gogna, also points out that in so far as the similarly situated employees of the other units of AERCs are concerned, all have been granted pensionary benefits in terms of the GPF Scheme. His only objection to the present petition being that unlike other AERC units, there is no MoU executed between the respondent no.1/DU and the respondent no.3/UoI. Thus, the petitioners are not entitled to seek the reliefs on parity basis.
ANALYSIS AND CONCLUSIONS: -
12. This Court has heard the lengthy arguments of Ms.Rashmi Gogoi, learned counsel for the petitioners, Mr. Rajesh Gogna learned counsel for the respondent no.3/UoI and Mr. Anurag Mathur learned counsel for the respondent no.1/DU, perused the voluminous records and considered the judgements relied upon by the parties.
13. At the outset, it would be pertinent to consider the backdrop on which the edifice of the petitioners case is predicated. The AERC was established on 8th February, 1954 vide DO No. F.2-3/52-P.C.11 as a Section of the Department of Economics, Delhi School of Economics, University of Delhi. AERC was integrated with University of Delhi in 1987 vide Ordinance XX-G of the University of Delhi and has since functioned as a Maintained Institution of the University.
14. Over a period of time, the Central Government was of the considered view that these AERC’s should be made permanent part of the Universities that they were attached with or working under. Accordingly, the Central Government appeared to have executed various MoUs with the respective Universities to make the AERC’s attached as permanent institutions working under such University. Under such MoU’s not only were the AERC’s made permanent part of the University, the staff too were recognized to be or treated as regular staff of such University. Based thereon, the employees of these AERC’s were disbursed emoluments and other perks.
15. So far as the respondent no.1/DU is concerned, it appears that no MoU was executed by the Central Government with it for the aforesaid purposes. However, there is a distinct feature which was particular to the employees of AERC Delhi Unit. The respondent no.3/UoI had by the letter dated 15.05.1985 accepted the recommendations of the Review Committee for AERC to make the Delhi Unit of the AERC as permanent Institution under the respondent No.1/DU. As per the terms and conditions, which were accepted, the status of the employees of the AERC were to be treated in the following manner:
1. Permanency of the Centres/Units (a) We want to make the Centres/Units permanent. The Government will fix the grant-in-aid on a quinquennial basis as recommended by the Review Committee. The grant will be released on half yearly basis. The grant-inaid, as at present, will be released to the University/Institute which will act as the Drawing and Disbursing authority of the fund. (b) The staff of the Centre/Unit would be considered at par with regular employees of the University for all the privileges enjoyed by the regular staff of the University/Institute i.e., pension, gratuity, provident fund etc., allotment of quarters as per the existing rules, medical benefits and all other benefits as applicable to the staff of the University/Institute. They should also be considered for such advances and loans as may be extended by the University/Institute to its permanent staff.
(c) All the administrative problems arising in the Centre/Unit will be settled by the University/Institute in accordance with the normal rules of the University/Institute…” The above recommendations which were accepted, particularly subparas (a), (b), (c) of para 1 leave no doubt that not only was the AERC made a permanent Delhi University Maintained Institution, but also the staff of AERC was to be considered at par with the regular employees of the DU for all privileges enjoyed by the respondent no.1/DU employees regarding pension, gratuity, provident fund etc.
16. Vide the letter dated 09.11.1987, the respondent no.1/DU had communicated its acceptance of the recommendations to the then Ministry of Agriculture with a copy endorsed to the Director, AERC. It would be apposite to reproduce the said letter hereunder: “Typed Copy No. AERC/ /87 November 9, 1987 Dear Dr. Saini, This is in response to your letter No. F-13-(i)/84-RC-RS dated the 20th October, 1987, regarding the Agricultural Economics Research Centre, University of Delhi. The Academic Council and the Executive Council of the Universtiy accepted the recommendations of Executive Council’s sub-committee’s recommendations that the Agricultural Economics Research Centre be managed as an autonomous University maintained Institutions trough a Governing Body on the lines similar to that of Vallabhbhai Patel Chest Institute. Accordingly, Ordinance XX-G (copy enclosed was approved by the Executive Council will nominate a Governing Body for the Centre as per Ordinance XX-G in the near future. The Centre having become an integral part of the University, you may now take steps to have the annual expenditure on the Centre brought on permanent and regular budget of the Ministry of Agricultural so that the Centre is established on a permanent basis. With best wishes, Yours sincerely, Sd/- (MOONIS RAZA) Dr, G.R.Saini Economic & Statistical Adviser Department of Agricultre & Cooperation Directorate of Economics & Statistics Krishi Bhavan New Delhi - 110001 Cc: The Director Agro-Economics Research Centre University of Delhi Delhi-7 Sd/- (MOONIS RAZA)” The letter manifests the crystallization of the rights which the petitioners are espousing in the present writ petition. It is apparent that following the acceptance of the aforesaid recommendations, the respondent no.1/DU also issued an Ordinance – XX-G, approved by its Executive Council with effect from the Academic Year in July 1987. It is revealed that the AERC was acknowledged to have become an integral part of the respondent no.1/DU. The same issue was reiterated by the respondent no.1/DU vide the letter dated 03.02.1988. It is significant to note that both in the letter dated 15.05.1985 of the respondent no.3/UoI as also the letter dated 09.11.1987 of the respondent no.1/DU, the employees of the respondent no.2/AERC were now at par with the regular employees of the respondent no.1/DU with all the benefits like pension, gratuity etc.
17. In the above context, it would also be relevant to note the terms of Ordinance XX-G which was accepted and notified by the respondent no.1/DU. The same are extracted hereunder: “UNIVERSITY OF DELHI “ORDINANCE XX-G AGRICULTURAL ECONOMICS RESEARCH CENTRE”
1. …
2. Subject to the general control and supervision of the Executive Council, the Governing Body will manage the affairs of the Centre and shall have the following powers and functions:- (a) (i) to organise research on agriculture in a multi-disciplinary framework including maintenance a Data Bank in the Centre and to determine the staff and other requirements for the same;
(ii) to participate in organising and teaching of courses on Agricultural
(iii) to conduct training programmes, not leading to formal qualifications dealing with aspects of agricultural rural development.
(iv) subject to the control of Academic Council, offer jointly with School of
Correspondence Courses and continuing Education, courses leading to post-graduate diploma/Master’s Degree programmes in Agricultural Development Economics; (b) Subject to the Control of the Academic Council, to prescribe the rules for admission of the students, resident and non-resident, and the fees to be paid by them;
(c) to frame the Budget of the Centre and submit the same for approval to the Executive Council, and to incur expenditure within the limits fixed in the Budget approved by the Executive Council;
(d) to consider the Annual Accounts alongwith the audit report and after approval submit the same to the Executive Council for information alongwith its comments; (e) after obtaining the recommendations of the Selection Committee under Statute 19(1) and subject to the approval of the Executive Council to appoint the teaching/academic staff for the Centre. The teaching staff so appointed will stand recognised as Professor, provided that the Director shall be appointed on the recommendation of the Vice-Chancellor by the Executive council from amongst the Professors in the Centre (f) to appoint, suspend or terminate the services of the administrative and other non-teaching staff of the Centre in respect of whom such powers may have been delegated by the Executive Council and to determine the emoluments and conditions of service; Provided, however, that the qualifications for appointment, emoluments and conditions of service of such persons shall be in accordance with those laid down by the Executive Council for similar posts in the University; (g) the Governing Body may constitute an Academic Advisory Committee to advise it on matters of special interest which the Centre wishes to investigate, the Academic Advisory Committee may also include persons who are not connected with the University; (h) to make such rules as the Governing Body may think essential for the regulation of the business of the Centre; and
(i) to exercise such other powers and functions as may be assigned to them by the Executive Council.” Clause (e) and (f) of para 2 of the said Ordinance declare the intent of the DU that the teaching staff would be treated as Professors, Readers and Lecturers etc of the University and the remaining employees would be treated at par with the other non teaching staff of the University. Thus, this Ordinance too would enure to the benefit of the petitioners on all fours.
18. Incidentally, in the interregnum, the Central Government had notified an OM on 01.05.1987 regarding the option to be exercised by its employees from CPF to GPF. It is significant to note the relevant recitals therein which are reproduced hereunder: “No.4/1/87 PIC-I Government of India Ministry of Personnel, Public Grievances and Pensions Department of Pension and Pensioners' Welfare New Delhi, the 1st May,1987.
OFFICE MEMORANDUM Subject:- Change over of the Central Government employees from the Contributory Provident Fund Scheme to Pension Scheme - Implementation of the recommendations of the Fourth Central Pay Commission. The undersigned is directed to state that the Central Government employees who are governed by the Contributory Provident Fund Scheme (CPF Scheme) have been given repeated options in the past to come over to the Pension Scheme. The last such option was given in the Department-of Personnel and Training O.M. No. F3(1)- Pension unit/85 dated the 6th June, 1985. However, some Central Government employees still continue under the CPF Scheme. The Fourth Central Pay Commission has now recommended that all CPF beneficiaries in service on January 1, 1986, should be deemed to have come over to the Pension Scheme on that date unless they specifically opt out to continue under the CPF Scheme.
2. After careful consideration the President is pleased to decide that the said recommendation shall be accepted and implemented in the manner hereinafter indicated.
3. All CPF beneficiaries, who were in service on 1.1.1986 and who are still in service on the date of issue of these orders will be deemed to have come over to the Pension Scheme.
3.2. The employees of the category mentioned above will, however, have an option to continue under the CPF Scheme, if they so desire. The option will have to be exercised and conveyed to the concerned Head of Office by 30.09.1987 in the form enclosed if the employees wish to continue under the CPF Scheme. If no option is received by the Head of Office by the above date the employees will be deemed to have come over to the Pension Scheme.
3.3. The CPF beneficiaries, who were in service on 1.1.1986, but have since retired and in whose case retirement benefits have also been paid under the CPF Scheme, will have an option to have their retirement benefits calculated under the Pension Scheme provided they refund to the Government, the Government contribution to the Contributory Provident Fund and the interest thereon, drawn by them at the time of settlement of the CPF Account. Such option shall be exercised latest by 30.09.1987.
3.4. In the case of CPF beneficiaries, who were in service on 1.1.1986 but have since retired, and in whose case the CPF Account has not already been paid, will be allowed retirement benefits as if they were borne on pensionable establishments unless they specifically opt by 30.09.1987 to have their retirement benefits settled under the CPF Scheme. 3.[5] In the case of CPF beneficiaries, who were in service on 1.1.1986, but have since died, either before retirement or after retirement, the case will be settled in accordance with para 3.[3] or 3.[4] above as the case may be. Options in such cases will be exercised latest by 30.09.1987 by the widow/widower and in the absence of widow/widower by the eldest surviving member of the family who would have otherwise been eligible to family pension under the Family Pension Scheme if such scheme were applicable. 3.[6] The option once exercised shall be final. 3.[7] In the types of cases covered by paragraph 3.[3] and 3.[5] involving refund of Government's contribution to the contributory provident fund together with interest drawn at the time of retirement, the amount will have to be refunded latest by the 30th September, 1987. If the amount is not refunded by the said date, simple interest thereon will be payable at 10% per annum for period of delay beyond 30.9.1987. 4.[1] In the case of employees who are deemed to come over or who opt to come over to the Pension Scheme in terms of paragraphs 3.3, 3.[4] and 3.5, the retirement and death benefits will be regulated in the same manner as in case of temporary/quasi-permanent or permanent Government servants, as the case may be, borne on pensionable establishment. 4.[2] In the case of employees referred to above, who come over or are deemed to come over to the Pension Scheme, the Government's contribution to the CPF together with the interest thereon credited to the CPF Account of the employee will be resumed by the Government. The employees contribution together with the interest thereon at his credit in the CPF Account will be transferred to the GPP Account to be allotted to him on his coming over to the Pension Scheme. 4.[3] Action to discontinue subscriptions/contributions to CPF Account may be taken only after the last date specified for exercise of option, viz., 30.09.1987.
5. A proposal to grant ex gratia payment to the CPF beneficiaries, who Retired prior to 1.1.1986 and to the families of CPF beneficiaries who died prior to 1.1.1986, on the basis of the recommendations of the Fourth Central Pay Commission is separately under consideration of the Government. The said ex-gratia payment, if and when sanctioned, will not be admissible to the employees of their families who opt to continue under the CPF Scheme from 1.1.1986 onward.
6.1. These orders apply to all Civilian Central Government employees who are subscribing to the Contributory Provident Fund under the Contributory Provident Fund Rules (India), 1962. In the case of other contributory provident funds, such as Special Railway Provident Fund or Indian Ordinance Factory Workers Provident Fund or Indian Naval Dockyard Workers Provident Fund, etc., the necessary orders will be issued by the respective administrative authorities. 6.[2] These orders do not apply to Central Government employees who, on reemployment, are allowed to subscribe to Contributory Provident Fund. These orders also do not apply to Central Government employees appointed on contract basis where the contribution to the Contributory Provident Fund is regulated in accordance with the terms of contract. 6.[3] These orders do not also apply to scientific and technical personnel of the Department of Atomic Energy, Department of Space, Department of Electronics and such other Scientific Departments as have adopted the system prevailing in the Department of Atomic Energy. Separate orders will be issued in their respect in due course. 7.[1] Ministry of Agriculture etc., are requested to bring these orders to the notice of all CPF beneficiaries under them, including those who have retired since 1.1.1986 and to the families covered by paragraph 3.[5] of these orders. 7.[2] Administrative Ministries administering any of the Contributory Provident Fund Rules, other than Contributory Provident Fund Rules (India), 1962, are also advised to issue similar orders in respect of CPF beneficiaries covered by those rules in consultation with the Department of Pension and Pensioners’ Welfare.
8. These orders issue with the concurrence of the Ministry of Finance Department of Expenditure vide their U.O. No.2038/JS (Pers)/87 dated 13.4.1987.
9. In their application to the persons belonging to Indian Audit and Accounts Department, these orders issue after consultation with the Comptroller and Auditor General of India.
10. Hindi version of these orders follows. Sd/- (I.K. Rasgotra) Additional Secretary to the Government of India” It is clear from the aforesaid terms of the O.M. that the employees who were hithertobefore beneficiaries of the CPF Scheme in service on 01.01.1986 and were still in service on the date of issuance of the said O.M., were deemed to have come over to the Pension Scheme. It was only as an option that such employees were given an opportunity to continue with the CPF Scheme in case they did not wish to avail benefit under the Pension Scheme. In order to continue with the CPF Scheme, the Central Government had granted time up till 30.09.1987 to exercise such option. It was also clarified that in case no such option was submitted by the employees in written, on or before 30.09.1987, it would be deemed that such employees have come over to the GPF cum Pension Scheme.
19. The issue as to whom, at what stage and in what manner the OM dated 01.05.1987 would apply and in what circumstances is no more res integra, particularly with respect to the employees of the respondent no.1/DU. The Supreme Court in University of Delhi vs. Smt. Shashi Kiran & Ors., reported in (2022) 15 SCC 325 and this Court in Neerja Tiku vs. School of Planning & Architecture & Anr, reported in 2024:DHC:2891 succinctly interpreted the provisions of the said OM and applied it to the employees by placing them in different categories. Thus, the fact that switchover from CPF to GPF with respect to the employees of respondent no.1/DU, is permissible, is trite and need not be further dilated or delved into by this Court. Moreover, it cannot be disputed either by the respondent no.3/UoI or respondent no.1/DU that the petitioners are considered as regular employees of respondent no.1/DU, regard being had to the above recommendations and letters of acceptance followed by issuance of Ordinance XX-G.
20. Another significant facet of the issue for consideration is the Statute 28A with Appendices ‘A’ and ‘B’ approved and implemented by the respondent no.1/DU for its employees in respect of options to be exercised for CPF Scheme or GPF-cum-Pension–cum-Gratuity Scheme. The AERC vide letter dated 27.08.1974 requested consideration of extension of similar benefits to its employees. This proposal was accepted by the Ministry of Agriculture vide the letter dated 24.11.1975. The respondent no.1/DU vide the letter dated 12.02.1976 informed the Deputy Director, AERC that the options exercised by the employees of AERC are already available with it and that in case any of such employees wished to exercise fresh option, they would await a fresh proposal. This correspondence is brought out only to appreciate, it in its correct perspective, the status of the petitioners with regard to their employment, their treatment as regular employees of the respondent no.1/DU as also to propel the submission that the petitioners are entitled to benefits under the OM dated 01.05.1987.
21. The aforesaid communications, Ordinances and Statutes of the respondent no.1/DU amply suggest that the petitioners are treated at par with the regular employees of the respondent no.1/DU. It is also safe to infer that the respondent no.3/UoI had envisioned the status of the employees of the respondent no.2/AERC, including the petitioners, to be treated as regular employees with all the benefits accruing to them equally, particularly, in terms of emoluments, perks, pension and gratuity.
22. Though, Ms.Gogoi had painstakingly read through many documents, which according to her, evidence the extension of benefits of GPF to employees of AERC, yet keeping in view the aforesaid irrefutable communications and documents, this Court is of the considered opinion that reference to those may not be required.
23. Besides, Mr. Gogna, learned CGSC for respondent no.3/UoI had very fairly submitted that the benefits of Pension as sought herein, have already been extended to similarly and identically situated employees of other Units of respondent no.2/AERC all over India. The only contention in regard to the possible objection for such extension to the petitioners herein is regarding non-existence of a similar MoU executed between respondent no.3/UoI and respondent no.1/DU. This submission need not detain this Court. This is for the reason that in the present case the provisions of Statute 28A, Ordinance XX-G read with the acceptance and implementation of the recommendations of the Ministry of Agriculture vide the letter dated 24.11.1975 would be the triumvirate source of power equivalent to the MoU. Undoubtedly, a conjoint reading of all these documents would invariably lead this Court to the only irresistible conclusion that the concomitants of the MoU are intrinsically intertwined within the aforesaid triumvirate. Inferentially, the petitioners are entitled to the reliefs sought.
24. That apart, it would be unfair, unjust and bordering unconstitutionality to deny one set of employees of AERC Unit at Delhi, the same pensionary benefits which, admittedly are extended to all the similarly situated employees of AERC Units in other States of India. This violates fundamental rights of the petitioners under Article 14 and 21 of the Constitution of India and would be, ex facie, discriminatory.
25. In somewhat similar circumstances, a learned Single Judge of this Court in Radharanjan (supra) granted the same reliefs to the employees of AERC Unit at West Bengal. This decision was carried in appeal before the learned Division Bench of this Court in Union of India & Ors vs. Radharanjan Pattanaik & Ors, LPA 677/2013. The said appeal was dismissed vide order dated 16.09.2013. The SLP thereagainst too, was dismissed on 08.02.2018 by the Supreme Court, upholding the view taken by the learned single Judge. For completion of the appreciation in the decision of the learned single Judge, the relevant extract of the judgement of the Supreme Court is reproduced hereunder: Radharanjan Pattanaik(supra)(Supreme Court) “The Government of India established Agro Economic Research Centers (AERC) in the year 1954 under the Ministry of Agriculture. Fifteen centres were set up in different States and attached to different Universities. Their object was to conduct investigation into specified agro economic problems and other related issues. The centres were supplementing the functioning of the Ministry of Agriculture. The Government later approved a proposal to merge the AERCs with the respective universities where they were functioning. In the process, MOUs were entered into between the Central Government and the Universities. The said MOUs clearly provide that the Ministry will release the grant-in-aid, according to the approved budget. The centres will be integrated with the universities. The staff will be considered at par with the employees of the University for pay and other privileges. Relevant part of MOU in the present case is as follows: “The staff of the centre would be considered at par with regular employees of the university for all the privileges enjoyed by the regular staff of the university i.e. pension, gratuity provident fund allotment of quarters as per the existing rules medical benefits, all other benefits etc. as applicable to the staff of the university. They will also be considered for such advances and loans as may be extended by the university to its staff”. A dispute was raised by some of the employees for enforcement of the above before the Allahabad High Court but the Allahabad High Court rejected their claim. On the other hand, the Delhi High Court has upheld the claim of the respondents based on the above MOU. The operative part of the order of learned Single Judge of the Delhi High Court which has been upheld by the Division Bench is as follow: “In view of the above, the writ petitions have to succeed. The impugned order of the respondent no. 4 dated 20.12.2008 is quashed. Petitioners will be entitled to all the pensionary benefits as available to employees of the respondent no. 4-University. Respondent No. 1 is directed to give the necessary financial resources by making necessary budgetary allocations for ensuring that the respondent No.4-University gets the finances for payment of pensionary benefits to the petitioners. Respondent no. 4 is directed to release the pensionary benefits including the arrears so far as those petitioners are concerned who already had the pensionary benefits; and such pensionary benefits were withdrawn by the order dated 20.12.2008; within a period of three months from today. Respondent No. 1 is directed to ensure that within this financial year the necessary financial resources as per business rules are transferred to the respondent no. 4- University so that the pensionary benefits can be granted to the petitioners”. Having perused the MOU and the Scheme of the setting up of the Agro Economic Research Centres, we do not find any error in the view taken by the High Court. The appeals are, accordingly, dismissed.” The entitlement to pension by exercising option for GPF or CPF is clearly discernible from the ratio in the aforesaid judgements. Though, to be fair, there existed a MoU in that case executed between respondent no.3/UoI and respondent no.1/University. Yet, predicated on the analysis in the preceding paragraphs and considering the triumvirate source of power, this Court holds that the ratio is squarely applicable to the present case too. Except that, instead of MoU, it would be the three documents referred to above, which, in view of this Court, would lead to the same entitlement to the petitioners too.
26. Lastly, the ratio laid down by this Court in Neerja Tiku (supra) would enure to the benefit of the petitioners. In that, the OM dated 01.05.1987 envisioned GPF cum Pension to be the default option to all the employees covered by it. The same is extracted hereunder:- “20…It is clear from the aforesaid terms of the O.M. that the employees who were hitherto before beneficiaries of the CPF Scheme in service on 01.01.1986 and were still in service on the date of issuance of the said O.M. were deemed to have come over to the Pension Scheme. It was only as an option that such employees were given an opportunity to continue with the CPF Scheme in case they did not wish to avail benefit under the Pension Scheme. In order to continue with the CPF Scheme, the Central Government had granted time up till 30.09.1987 to exercise such option. It was also clarified that in case no such option was submitted by the employees in written, on or before 30.09.1987, it would be deemed that such employees have come over to the GPF cum Pension Scheme.” In view of the above, the petitioners would also be default optees, in case of no option being exercised and if exercised, then reading the ratio of Shashi Kiran (supra) batch of matters, the petitioners would be offered fresh option in accordance with the OM dated 01.05.1987. Once the option is exercised, the DU shall process the cases of the petitioners after they deposit the CPF benefits, if any, disbursed to them alongwith the contributions made by it as their employer with the Pension Fund created for this purpose.
27. Since the salaries etc., were being released by respondent no.3/UoI to the employees of AERC and being only disbursed by the respondent no.1/DU, it is directed that the contributions and grants etc. on account of pension disbursable to the petitioners shall be released by respondent no.3/UoI within a period of 8 weeks from today. The DU shall take further steps forthwith on the receipt of such fund.
28. Accordingly, the present petition is disposed of with the aforesaid directions.
TUSHAR RAO GEDELA, J. DECEMBER 18, 2024