Union of India v. Pradeep Mathur

1. This review petition has been filed by the respondents / review petitioners seeking review of order dated October 31, 2019 passed in the above writ petition.

2. The grounds seeking review as contended by Mr. Sudhir Nandrajog, learned Sr. Counsel appearing for the respondents / review petitioners are primarily that this Court in the order dated October 31, 2019, more specifically in paragraph 35 has held that the Autonomous Institutions have their own Rules, the benefit of OM dated May 1, 1987 cannot be automatically extended to them. Review Petition No.44/2020 in W.P.(C) 359/2017 & connected matter Page 3

3. According to Mr. Nandrajog, on the strength of the finding in paragraph 35, consequently paragraph 40 which deals with the case of the review petitioners, this Court has held that since the review petitioner’s case is by relying upon the case of the IIMC, i.e., TA 1101/2009 having been set aside, the judgment of the CAT impugned before this Court would not survive, is an error apparent on the face of the record inasmuch as the said conclusion does not hold good in the light of the regulations enacted by the CPCB.

4. In other words, it is his submission that IIMC had its own CPF based scheme whereas in CPCB, Rule 6 (2) specifically states Pension Rules, as applicable to Central Government Employees will apply to all the employees of the Board. Therefore, even if the finding of this Court in paragraph 35 is to be accepted as laying down the law, he states due to the CPCB Rules incorporating CCS (Pension) Rules by reference, the Judgment of the CAT in OA 2805/2012 could not have been set aside. According to him, the facts and status of CPCB and IIMC are / is entirely different. In the case of IIMC, it is an Autonomous Body registered under the Societies Registration Act, 1860, whereas CPCB is created by an Act of Parliament in 1974 is a Statutory Body having regulatory functions. Whereas in the year 1995, Government of India through a Gazette Notification made employees of CPCB at par with the Central Government employees for the purposes of allowances, leave, joining time, joining time pay, provident fund, gratuity, age of superannuation, retirement benefits, medical facilities and other conditions of service of the employees of the Board. He also submits that the reliance placed by this Court in the order dated October 31, Review Petition No.44/2020 in W.P.(C) 359/2017 & connected matter Page 4 2019 on the Judgment of the Supreme Court in T.M. Sampath and Ors. v. Secretary, Ministry of Water Resources and Others, SLP (Civil) No. 3106-3107/2012 is not applicable to the present case, because the employees of National Water Development Authority (‘NWDA’, for short) were governed by their own Contributory Provident Fund, Rules, 1982 (‘CPF’, for short) framed by NWDA. Therefore, the provisions of OM dated May 1, 1987 do not apply in their case. As regards the Supreme Court Judgment in S.L. Verma, the same covers the case of the respondents / review petitioners in all respects. The said judgment has neither been overruled nor distinguished by the Supreme Court in T.S. Sampath (supra). Even otherwise, there is an error apparent in the judgment of this Court failing to consider the specific documents placed on record by the review petitioners, indicating that the Administrative Ministry of the petitioners as well as the CPCB has taken a conscious decision vide OM’s dated March 20, 2014; March 30, 2014, September 23, 2014, January 20, 2016, March 3, 2016, March 31, 2016 and May 25, 2016, which establish that the Administrative Ministry, the CPCB and no objection from the Department of Pension and Pensioners Welfare were fully in support of the extension of the benefit as contemplated vide OM dated May 1,

1987. So, Mr. Nandrajog contends that the Judgment dated October 31, 2019 need to be reviewed and the order of the Tribunal be upheld.

5. On the other hand, learned counsel appearing for the petitioners would contest the petition by stating that the judgment / order dated October 31, 2019 is just and proper and need no review. According to him, vide notification dated January 24, 1995 the Regulations called Review Petition No.44/2020 in W.P.(C) 359/2017 & connected matter Page 5 CPCB (Method of Recruitment, Terms and Conditions of Service of Officers and other Employees other than Member Secretary), Regulations, 1995 were notified. Rule 6 (2) of the same reads as under: “Pay, allowances, leave and other conditions of service of officers and other employees – (1) the sale of pay of employees of the Board shall be as specified in column (3) of Schedule. (2) The rules and orders for the time being in force applicable to the officers and servants, holding posts of corresponding scale of pay under the Central Government, shall regulate the conditions of service in respect of allowance, leave, joining time, joining time pay, provident fund, gratuity, age of superannuation, retirement benefits, medical facilities and other conditions of service of the employees of the Board.”

6. The rules and orders for the time being in force applicable to officers and servants holding posts corresponding to the scale of pay under the Central Government shall regulate the conditions of service in respect of allowance, leave, joining time, joining time pay, provident fund, gratuity, age of superannuation, retirement benefits, medical facilities and other conditions of service of the employees of the Board. According to him, Rule 6 (2) provides for parity in conditions of service of CPCB employees with Central Government employees. He submits that the Central Government employees pensionary benefits and entitlement are governed and regulated by CCS (Pension) Rules, 1972 but the same are not automatically applicable to the employees of the autonomous bodies and statutory organisations. The said rules are not applicable to persons who are entitled to the benefit of Contributory Provident Fund. The employees of CPCB, i.e., respondents herein are Review Petition No.44/2020 in W.P.(C) 359/2017 & connected matter Page 6 governed under the Contributory Provident Fund. Therefore, there cannot be any parity between the CPCB employees and the Central Government employees in so far as the GPF-cum-Pension is concerned.

7. In so far as the circular dated December 11, 1996 issued by the CPCB is concerned, it has been stated that the circular was issued by CPCB inter alia to the effect that employees of CPCB are entitled to pension and all other retirement benefits as per CCS (Pension Rules) and other orders issued on the subject from time to time. But the said circular runs contrary to Rule 6 (2) of the CPCB Regulations. The said rule does not specifically stipulate that CCS (Pension) Rules, 1972 are applicable to CPCB employees. He had also referred to the letter dated March 23, 1998 whereby the Chairman, CPCB sought the approval of the Ministry for the introduction of the GPF-cum-Pension Scheme in CPCB inter alia stating there is already a provision in the Recruitment Rules 1995 for that purpose. The case of extending the CCS (Pension) Rules was also referred to the Department of Pension, Pensionary Welfare for concurrence in terms of Para 7.[2] of the OM dated May 1, 1987, which gave no objection, but the same was subject to approval of Ministry of Finance, but the Ministry of Finance did not agree to the same as the old pension scheme is costlier than the CPF Scheme. He submits that the issue of this nature cannot be implemented without the concurrence of Ministry Finance as 100% grant-in-aid is provided by the Government of India. He states, Ministry has issued an order dated May 26, 2011 conveying to the Member Secretary of CPCB that Ministry of Finance upon consideration of the case has reiterated its previous order whereby the New Pension Scheme was extended to the Review Petition No.44/2020 in W.P.(C) 359/2017 & connected matter Page 7 employees of the Autonomous Bodies recruited before January 1, 2004 and the NPS may be made applicable to the employees of the CPCB also recruited before or after January 1, 2004. He states that the impugned order need not interfered with. The Review Petition be dismissed.

8. Having heard the learned counsel for the parties, it is clear from the above that the review is sought on the ground that this Court vide order dated October 31, 2019 has dismissed the writ petition 359/2017 only because that it has set aside the order of the Tribunal in TA 1101/2009.

9. The plea of Mr. Nandrajog as noted above is that the judgment in the case of IIMC has no applicability to the facts of this case in view of the Rules framed under the provisions of CPCB Act. Whereas Mr. Ruchir Mishra, learned CGSC appearing for petitioner / Union of India had heavily relied upon the judgment in the case of T.S. Sampath and Ors. (supra) of which reference has also been made in the judgment dated October 31, 2019.

10. The issue which falls for consideration is whether Rule 6 (2) framed by CPCB under the CPCB Act would entitle the respondents / review petitioners the same pensionary benefits as were made applicable to the Central Government employees, i.e., the CCS (Pension) Rules, 1972. The Rule 6(2) on which heavy reliance has been placed by Mr. Nandrajog though contemplates parity in conditions of service of CPCB employees with the Central Government employees, but the CCS (Pension) Rules, 1972 framed under the provisions of Article 309 are not automatically applicable to Review Petition No.44/2020 in W.P.(C) 359/2017 & connected matter Page 8 Autonomous Bodies and statutory organizations, more so, to the persons who are entitled to the benefit of Contributory Provident Fund, which is also a retiral benefit. In that sense, the employees of CPCB are covered under the Contributory Provident Fund and the fact that Ministry of Finance has not approved the applicability of CCS (Pension) Rules, 1972 to the employees of CPCB cannot be overlooked.

11. No doubt, Rule 6 (2) Regulations of 1995 contemplate retirement benefits, but the same does not stipulate the same to be CCS (Pension) Rules, 1972. Even in the past, i.e., till 4th Central Pay Commission, the CPF was made applicable to the Central Government employees. But in the year 1987 with the issuance of OM dated May 1, 1987, options were called either to remain in CPF Scheme or to opt out of the same. Many employees remained in the CPF Scheme. So in that sense, the CPF is also a retirement benefit enjoyed by the Central Government employees.

12. So, to say the retirement benefits under Rule 6(2) must necessarily mean the CCS (Pension) Rules, 1972, is clearly untenable and not appealing. Hence, the plea is liable to be rejected. We find that the Supreme Court in T.M. Sampath (supra) has in paragraphs 16 has stated as under: “On the issue of parity between the employees of NWDA and Central Government employees, even if it is assumed that the 1982 Rules did not exist or were not applicable on the date of the O.M. i.e. 01.05.1987, the relevant date of parity, the principle of parity cannot be applicable to the employees of NWDA. NWDA cannot be treated as an instrumentality of the State under Article 12 of the Review Petition No.44/2020 in W.P.(C) 359/2017 & connected matter Page 9 Constitution merely on the basis that its funds are granted by the Central Government. In Zee Telefilms Ltd. & Another v. Union of India & Ors., (2005) 4 SCC 649, it was held by this Court that the autonomous bodies having some nexus with the Government by itself would not bring them within the sweep of the expression 'State' and each case must be determined on its own merits. Thus, the plea of the employees of NWDA to be treated at par with their counterparts in Central Government under sub rule (6)(iv) of Rule 209 of General Financial Rules, merely on the basis of funding is not applicable.”

13. Similarly the parity sought by the employees of Jawahar Navodaya Vidyalaya Samiti and Kendriya Vidyalaya Samiti for making applicable CCS (Pension) Rules, 1972 was rejected by the Supreme Court in T.M. Sampath (supra) by stating in paragraphs 21 and 22 as under: