Shantha Ramakrishna v. Jawaharlal Nehru University

1. The present Letters Patent Appeal arises out of the judgment dated 18.02.2022 passed by learned Single Judge, allowing the Writ Petition of 54 out of 61 persons, who had converged for redressal of their grievance qua non-payment of pension. It is noteworthy that by the very same judgment, the petition was dismissed for remaining 07 Petitioners, including the appellant.

2. Before adverting to the short issue involved in the present appeal, for the purpose of narration of facts, instead of recording their para-wise facts, we deem it apt to give a list of relevant dates. List of dates & events: Date Particulars 17.09.1984 Appellant joined Jawaharlal Nehru University (hereinafter referred to as „University‟) as an Assistant Professor at the Centre of French and Francophone studies and began contributions towards CPF. 01.01.1986 Government of India implemented the Fourth Pay Commission which recommended that all CPF beneficiaries, who were in service on 01.01.1986 and continued should be deemed to be covered under GPF scheme unless they specifically opt to remain under the CPF. 01.05.1987 The Ministry of Personnel, Public Grievances and Pensions, issued an Office Memorandum (hereinafter referred to as „OM‟) No.4/1/87-PIC-1 accepting the 4th Recommendation. 21.12.1987 University issued a Circular in essence implementing the terms of the OM dated 01.05.1987, providing as under: "a) Those who were in service on 01.01.1986 and are still in service on the date of issue of this circular, will be deemed to have come over to the Pension Scheme, They, shall, have an option to continue under the CPF Scheme, which option will have to be exercised in the prescribed form (Annexure-B) and conveyed to the Finance Officer by 20.5.88...” The Appellant was in service on 01.01.1986 and did not exercise the option to remain under CPF. She claimed to be covered under the GPF. 05.10.1993 Since some employees could not exercise options, the University issued another circular and gave a liberty to switch over to GPF by 31.12.1993. 26.07.1995 The University issued yet another Circular with the same instructions and extended the time for opting in the GPF Scheme to 3 months from 15.07.1995. 19.01.2004 Appellant and two other employees wrote a letter to the Vice Chancellor of University seeking an opportunity to switchover to GPF. 22.04.2005 To consider various representations of the employees, University set up the Nayak Committee. The Committee recommended that the CPF holders, who were still in service, should be offered the choice to switch over to GPF. 31.07.2005 The Appellant superannuated on attaining 62 years, she was however given a reemployment for one year till 31.07.2006. 29.11.2006 Executive Council of University accepted the Nayak Committee Report and passed a resolution granting one more opportunity to its employees to switch over to GPF. 14.02.2007 The Appellant filled-in the form exercising her option to shift to GPF and sent it to the Registrar of University. 10.12.2008 The Ministry of Finance, Govt. of India however declined permission to the University to act upon the Nayak Committee Report. 05.04.2010 The Appellant, along with 60 other employees, who were not granted the GPF benefit filed WP(C) No. 2989 of 2010 before this Hon'ble Court, seeking: i. A direction for implementation of the Executive Council decision dated 19.07.1993 and Circular dated 26.07.1995, to the effect that petitioners be deemed to have switched over to the GPF Pension Scheme, or ii. Alternately, permission to exercise option as per Nayak Committee Recommendation and University Executive Council Resolution dated 29.01.2006. 15.11.2010 University filed a Counter and contended that the writ petitioners had shown no evidence of having exercised the option of switch over from CPF to GPF, the petition suffered from laches & granting GPF would be a financial burden.

3. Ms. Shivani Vij, learned Counsel for the Appellant submitted that the learned Single Judge dismissed the writ petition qua the appellant simply on the ground that when the petitioner filed the writ petition (on 05.04.2010), she had already superannuated. Learned Counsel contended that the learned Single Judge, in principle, held that in view of OM dated 01.05.1987, issued by the Central Government, it was incumbent upon the University to deem automatic switching of the employee to GPF from CPF.

4. Learned Counsel for the Appellant submitted that on 21.12.1987, the respondent-University had adopted the OM dated 01.05.1987 in its entirety, yet a Committee known as “Nayak Committee” was again constituted by the University, which recommended that all the employees of the University be treated to have moved to GPF in place of CPF, regardless of the fact that they did not furnish the option form.

5. She informed that though the University had adopted such recommendations of Nayak Committee, but, in view of the objections raised by the Ministry of Finance, such adaptation of OM and recommendation of Nayak Committee came to be reviewed / cancelled.

6. Learned Counsel submitted that the appellant along with 60 other employees, were not granted benefit of GPF or the pension, for which they filed a joint writ petition, which was allowed qua 54 persons vide order dated 18.02.2022, against which not only the Letters Patent Appeal, even the Special Leave petition filed by the University has been rejected. She argued that though said order dated 18.02.2022 has attained finality, yet the appellant has been denied such benefit on the count of delay.

7. She informed that in almost identical sets of facts, in the case of University of Delhi vs. Shashi Kiran & Ors. reported in (2022) 15 SCC 325, Hon‟ble the Supreme Court has decided the similar issue and even the persons who were standing on a comparatively weaker footing than the appellant have been held to be entitled for the benefits under GPF Scheme.

8. She invited Court‟s attention towards the relevant paragraphs i.e. Para Nos.-35, 38, 50, 51 and 52 and argued that learned Single Judge was not justified in denying the appellant, the benefit of pension or GPF Scheme. The relevant paragraphs are reproduced hereinfra:-

35. The common thread which ran through the decisions of the learned Single Judge pertaining to three batches of cases, was that the text of the Notification dated 1-5-1987 was clear that if no option was exercised by the employees concerned before the cut-off date, they would be deemed to have “come over” to GPF. It was only a positive option exercised by the employees to continue to be under CPF which could have departed from such deeming provision. Once exercised, the option was final and as such, there could be no switch over from those who had consciously opted to be under CPF. Further, relying on the decision in S.L. Verma, it was observed that any exercise of option after the deadline or the cut-off would be inconsequential. It was on this premise that the cases in R.N. Virmani batch of cases and N.C. Bakshi batch of cases were allowed by the learned Single Judge. As regards Shashi Kiran batch of cases, the learned Single Judge observed, that once the conscious decision was taken and option was exercised to continue to be under CPF, there was “no room for any come back situation". The cases in the third batch were therefore, rejected.

38. According to the Notification dated 1-5-1987 two situations were contemplated. First, the deeming provision in terms of which the employee concerned was taken to have “come over” to GPF. The second situation being where a conscious option was exercised before the cut-off date to continue to be under CPF. R.N. Virmani batch of cases was therefore rightly allowed by the learned Single Judge and the Division Bench of the High Court, as no conscious option was exercised by the cut-off date. Consequently, the employees concerned must be deemed to have “come over” to GPF. Logically, it would be immaterial whether the employee concerned continued to make contribution assuming himself to be covered under CPF, even though contributions were made by the authorities concerned. The benefit was therefore rightly granted in favour of the employees and the entire contribution was directed to be refunded. The University has chosen not to appeal against that decision and thus the matter has attained finality.

50. We may now consider the matter from the perspective of financial impact if the decision of the Division Bench is affirmed.

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 Kiran10 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 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 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 c Kiran 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.”

9. Learned Counsel for respondent-University on the other hand submitted that learned Single Judge has rightly non-suited the Appellant on the grounds of delay as given in the impugned judgment, inasmuch as the petitioner took up the legal proceedings, long after she had retired.

10. He further submitted that the judgment of Shashi Kiran (supra) was not even cited before learned Single Judge, may be because at that time said because judgment of Hon‟ble the Supreme Court was not even passed. He added that the order of learned Single Judge has to be tested on the basis of law, which was prevailing on said date.