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HIGH COURT OF DELHI
W.P.(C) 8583/2015
NEERJA TIKU .....Petitioner
Through: Mr. Rakesh Tiku, Senior Advocate
Through: Mr. Ankur Chhibber, Advocate for R-1.
Ms. Bharathi Raju, Senior Panel Counsel for UOI.
09.08.2024
JUDGMENT
1. In terms of the directions passed on 26th July, 2024, the respondent no.1 had filed an affidavit dated 08th August, 2024.
2. Mr. Chhibber, learned counsel appearing for respondent no.1 invites attention of this Court to para 5 through till para 8 of the said affidavit. He submits that based on the averments contained in the aforesaid paragraphs, this Court may suitably modify the directions contained in para 28 of the judgment dated 10th April, 2024.
3. Mr. Tiku, learned Senior Counsel appearing on behalf of the petitioner agrees with the submissions so made.
4. In order to appreciate the issue, it would be apposite to extract the averments contained in paras 5 to 8 as was quoted in the affidavit dated 08th August, 2024 filed on behalf of respondent no.1:- “5. That on perusal of the judgment and particularly Para 28 of the same, it can be seen that the Petitioner was directed by this Hon'ble Court to recoup/deposit the contribution received towards CPF Scheme with the Competent Authority within a period of eight weeks. The said direction was premised on the judgment passed by the Hon'ble Apex Court in case of University of Delhi Vs. Smt. Shashi Kiran and Ors.
6. That as regards, the contribution of the Petitioner is concerned, the same has been disbursed to the Petitioner on her superannuation. However, on the other hand as regards the contribution by the Deponent is concerned, the same was withheld by them in terms of the order dated 11.09.2015 passed by this Hon'ble Court and is still in their hold.
7. That keeping in view the above, as regards recouping is concerned, the same was dealt with by the Hon'ble Supreme Court in case of Shashi Kiran (supra) wherein the Hon'ble Court was of the following view: “51. According to the Notification dated 1-5-1987, the employees joining the service after 1-1-1986 would always be under GPF. With respect to those who were in service on 1-1-1986, said employees would be deemed to have “come over” to GPF unless an option to continue to be under CPF was consciously exercised before the cut-off date. Thus, when the Scheme was framed and was sought to be implemented, the authorities concerned must have taken into account the entire magnitude such as, the number of employees and the likelihood of impact on the management of the fund, so that reasonable returns can be effected by way of pension upon retirement of such persons. Going by the intent of the notification, those who were to opt for CPF, were an exception and the general rule was that everybody after 1-1-1986 would normally be covered by GPF. It is in this context that the number of original petitioners in Shashi Kiran [Shashi Kiran v. Union of India, WP (C) No.5759 of 2010 sub nom Kanta Batra v. Union of India, 2014 SCC OnLine Del 2797] batch of cases has to be seen. We are concerned with only 75 persons. On the other hand, the bulk of people, namely, 2469 employees were granted the choice of reverse switch over and they were allowed all the benefits under GPF. It can reasonably be said that when the Notification dated 1-5-1987 was issued, the authorities were conscious of the possibility that all the employees may "come over" to GPF. With that possibility in mind, the fund was constituted and the affairs were arranged. The shift of those 75 employees would not in any way affect the strength and the character of the fund if a direction that the entire contribution made by the authorities be returned with reasonable rate of interest is issued. These 75 petitioners had approached the Court in the year 2010. At this length of time, it is not as if any floodgates are going to open and there will be drain on the resources of the State. A direction can, therefore, be issued, as was done by the learned Single Judge in para 20 of his judgment in R.N Virmani [R.N Virmani v. University of Delhi, 2014 SCC OnLine Del 2799] batch of cases and which aspect was mentioned in the Letter dated 23-1-2017 referred to in para 31.[4] hereinabove, for recouping the contribution under CPF with 8% simple interest per annum.
52. Considering the circumstances on record, in our view, the decision rendered by the Division Bench of the High Court, in Shashi Kiran [Shashi Kiran v. Union of India, WP (C) No. 5759 of 2010 sub nom Kanta Batra v. Union of India, 2014 SCC OnLine Del 2797] batch of cases does not call for any interference except to the extent of direction for recouping of the contribution under CPF with 8% simple interest per annum. It is possible that at this length of time, some of the employees in Shashi Kiran [Shashi Kiran v. Union of India, WP
(C) No. 5759 of 2010 sub nom Kanta Batra v. Union of India, 2014
SCC OnLine Del 2797] batch of cases may not be interested in switch over to GPF. But an option must be afforded to them in such manner as the authorities deem appropriate.” On perusal of the above, the Hon'ble Court refers to a letter dated 23.01.2017 (written by the Under Secretary, Ministry of Education, Govt. of India, extracted in Para 31.[4] of the above judgment, and is reproduced below for the kind convenience of this Hon'ble Court:
(ii) In all other cases, University of Delhi is advised to file an appeal against the order of the Hon'ble Delhi High Court, in consultation with UGC/MHRD.
(iii) In case any other employee who was not in service as on 1-1-
1986 and joined thereafter, the question of application of order of Department of pension dated 1-5- 1987 shall not arise and as such if any order of any Court of Law allows pension in their cases, the University of Delhi may have to appropriately file appeal in the appropriate appellate court in consultation with UGC and MHRD.
3. The University may take appropriate action in light of the above and also to defend the interest of Govt. of India in all such Court cases arising in the matter."
8. That on perusal of the above, recoupment could be done with respect to only those persons who have been paid the CPF amount contributed by the School. In the present case, the answering Respondent holds their contribution, in view of the Hon'ble High Court order dated 11.09.2015.”
5. It is apparent that while this Court was passing the judgment dated 10th April, 2024, it was not brought to its notice that the contribution towards CPF Scheme deducted from the salary of the applicant/petitioner was already paid to her at the time of superannuation. However, the contribution of the respondent no.1 towards the CPF Scheme was retained by respondent no.1, which is noted in the order dated 11th September, 2015 passed by this Court. The said amount is still retained by respondent no.1. It is on account of the lack of aforesaid information that the directions as contained in para 28 were passed. It is apparent from the aforesaid averments in the affidavit of respondent no.1 that para 28 needs to be modified accordingly.
6. Para 28 of the judgment dated 10th April, 2024 may now read as under: “In the present case, the contribution towards CPF Scheme has been undoubtedly continued till the date of superannuation of the petitioner. In terms of the judgment of the Supreme Court in Shashi Kiran (supra), the amount accrued on account of such contribution made by the respondent no.1 towards its obligation on account of CPF Scheme be now converted/deposited into GPF Account.”
7. The amended/modified para 28 be uploaded as a Corrigendum to the judgment dated 10th April, 2024. The rectified judgment be uploaded on the website of the Court too.
8. In view of the fact that there has been a modification of the operating portion of the judgment dated 10th April, 2024, the exercise to be carried out be completed within a period of further eight weeks from today.
9. In view of the aforesaid, the application is disposed of.
TUSHAR RAO GEDELA, J AUGUST 9, 2024/