IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE AG. CHIEF JUSTICE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 11TH FEBRUARY 2010 / 22ND MAGHA 1931 WP(C).No. 22574 of 2009(S) -------------------------- {OA.685/2007 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH] .................... PETITIONER(S): 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF SPACE GOVT. OF INDIA, ANTARIKSH BHAVAN, NEW BEL ROAD, BANGALORE 560 231. 2. THE CHAIRMAN, INDIAN SPACE RESEARCH ORGANISATION GOVT. OF INDIA, ANTHAREEKSH BHAVAN, NEW BEL ROAD, BANGALORE 560 231. 3. THE DIRECTOR, LIQUID PROPULSION SYSTEMS CENTRE, VALIAMALA P.O., THIRUVANANTHAPURAM 695 547. BY ADV. SRI.S.KRISHNAMOORTHY, CGC RESPONDENT(S): K.P. RAMACHANDRAN PILLAI, S/O LATE PARAMESWARAN PILLAI, KARTHIKA, GRA-C-108, KUNNIL LANE, GANDHIPURAM, SREEKARAYAM P.O., THIRUVANANTHAPURAM 695 517. ADV. K.P.GEETHAKUMARI SRI.P.N.SANTHOSH SMT.K.P.GEETHA MANI SRI.P.N.APPUKUTTAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.22574 of 2009 :: 2 :: APPENDIX PETITIONERS' EXHIBITS: EXT.P1: TRUE COPY OF THE OA NO.685 OF 2007 FILED BY THE RESPONDENT BEFORE THE HON'BLE CAT, ERNAKULAM BENCH. EXT.P2: TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS. EXT.P3: TRUE COPY OF THE REJOINDER FILED BY THE RESPONDENT. EXT.P4: TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE PETITIONERS. EXT.P5: TRUE COPY OF THE SECOND ADDITIONAL REPLY STATEMENT FILED BY THE PETITIONERS. EXT.P6: TRUE COPY OF THE ORDER DATED 21.04.2009 OF THE HON'BLE CAT, ERNAKULAM BENCH IN O.A.NO.685 OF 2007. RESPONDENTS' EXHIBITS: NIL //true copy// P.S. To Judge SK/- P.R.RAMAN, AG. C.J., & S.S.SATHEESACHANDRAN, J. ------------------------------------------------ W.P.(C).No.22574 of 2009 ----------------------------------------------- Dated this the 11th day of February, 2010. JUDGMENT S.S.SATHEESACHANDRAN, J. Petitioners in the above writ petition are the respondents in O.A.No.685/07 on the file of the Central Administrative Tribunal, Ernakulam Bench {hereinafter referred to as the Tribunal”}. The respondent was the applicant in the above original application. Parties are referred to as in O.A for the sake of convenience. Exhibits marked in O.A and reply affidavit by the respective parties applicants and respondents are referred to as such hereunder, except where special reference as marked in the writ petition is found necessary. 2. The facts involved in the original application, in a nut shell, are thus: The W.P.(C).No.22574 of 2009 :: 2 :: applicant was a steno typist in ISRO under the Department of Space. The Central Government, accepting the recommendation of the 4th Central Pay Commission, issued Annexure R7 Official Memorandum dated 1st May, 1987 by which the employees who continued under the CPF/Pension Scheme were brought under the GPF/Pension Scheme, but subject to right to exercise option by such an employee to continue under CPF/Pension Scheme within the time fixed. The Department of Space, after consultation with the Pension Department, extended the benefits covered by Annexure R7 to the employees working under that Department. Annexure R8 is that order. In Annexure R8, the date of option was extended period upto 31.12.1987 in the place of 30.9.1987 under Annexure R7. The applicant in the original application, pursuant to Annexure W.P.(C).No.22574 of 2009 :: 3 :: R8 exercised his option vide Annexure R10 dated 29.12.1987 to continue under the contributory provident fund scheme. However, later, he moved a representation Annexure A8 seeking another opportunity to switch over to the GPF scheme. That representation, after consideration, was declined by the respondents, vide Annexure A10 order. Challenge in the original petition was against Annexure A10 order canvassing a case that it has no legal sanctity in view of Annexures A3 option exercised by the applicant previously and A7 entry recorded in his service book. Setting aside Annexure A10 order, the applicant sought for granting of benefits to him as if he had opted and continued in GPF Pension Scheme. 3. The Tribunal, after hearing both sides, passed Ext.P7 order impugned in the writ W.P.(C).No.22574 of 2009 :: 4 :: petition. Allowing the application the respondents were directed to treat the applicant as deemed to have opted for GPF/pension Scheme in terms of Annexure R7 official memorandum dated 1.5.1987. The applicant was also directed to be paid the sum due on re-assessment of his claims treating him of having opted under the GPF/Pension Scheme adjusting and giving credit to whatever amount earlier disbursed to him on his retirement on superannuation. In case, the applicant on such re-assessment was found to have collected any excess amount, the respondents were directed to inform him of such excess, and, on such intimation, the applicant was directed to refund such difference within one month. Aggrieved by Ext.P7 order passed with directions as indicated above, and, challenging W.P.(C).No.22574 of 2009 :: 5 :: its propriety and correctness, the respondents in the original application have preferred this writ petition. 4. We heard the counsel on both sides. 5. The fulcrum of controversy involved in the petition, after taking note of the submissions made by the respective counsel on both sides and the materials tendered, is found to be lying within a narrow campus. What is the legal validity of Annexure R8 memorandum issued by the Department of Space fixing an extended period for exercising option by the employees of that Department is the question that has to be determined for resolving the controversy involved in the case. 6. The Tribunal, relying the decision in “Union of India v. S.L.Varma and others” {2006 (12) SCC 53} accepted the challenge against W.P.(C).No.22574 of 2009 :: 6 :: Annexure A10 order issued by the Department of Space by the applicant to allow the original application with directions as indicated above. The Tribunal has taken a view that any option to continue in CPF Scheme required to be exercised by the employee covered by that scheme within the time fixed under Annexure R7 and in the absence of conscious exercise of such option by the employees to do so within such time, he would not become a member of the Pension Scheme covered by the CPF/Pension Scheme, but has to be treated as switched over to GPF Pension Scheme as mandated under Annexure R7. Though not examining the question of validity of Annexure R8, by which an extended period for option was provided to the employees of the Department of Space, the Tribunal has expressed the view that the W.P.(C).No.22574 of 2009 :: 7 :: Department should not have accepted the option of the applicant, Annexure R10 dated 29.12.1987 which was made beyond the date prescribed in Annexure R7 dated 1.5.1987. An entry recorded in the service book of the applicant (Annexure A7) that he shall be deemed to have opted for the GPF Pension Scheme was taken into account by the Tribunal to sustain the conclusion formed as above. The Tribunal also found fault with the respondents in not taking immediate action on the representation (Annexure A8 dated 9.1.2006) submitted by the applicant seeking option to switch over to GPF Pension Scheme granting him extension of time, in concluding that the applicant should be deemed to have opted for the GPF Pension Scheme as he had not exercised any option to retain the CPF Pensionary benefits in terms of Annexure R7. W.P.(C).No.22574 of 2009 :: 8 :: 7. Learned counsel for respondents in the O.A (writ petitioners) inviting our attention to the reliefs canvassed in the original application, copy of which is produced as Ext.P1 in the writ petition, submitted that the applicant has not challenged the validity of Annexure R8 notification issued by the Department and the orders passed on the option exercised by him within the extended period provided under that Annexure. Relying on “KVS and other v. Jaspal Kaur and another” {2007(6) SCC 13}, the learned counsel contended that once option was exercised by the applicant within the extended period provided by Annexure R8 that he wished to continue in the CPF Pension Scheme, the belated representation made after long period of time that he should be deemed to have switched over to the GPF pension W.P.(C).No.22574 of 2009 :: 9 :: Scheme as he had not opted within the period fixed under Annexure R7, is unworthy of any merit and the orders of rejection passed on his representation vide Annexure A10 order in the given facts and circumstances of the case are unimpeachable. The Tribunal, without noticing that there was no challenge against Annexure R8 official memorandum issued by the Department and the option exercised thereon by the applicant placing reliance on innocuous and insignificant factors, according to the counsel, has formed a conclusion that the option exercised by an employee after the period fixed under Annexure R7 has no legal validity. As the applicant has not exercised an option within the period provided under Annexure R7, the subsequent option given by him under Annexure R8 issued by the Department W.P.(C).No.22574 of 2009 :: 10 :: (ISRO), according to the Tribunal, has no significance as it does not in any way impinge the right of the applicant to claim that he should be deemed to have switched over to the GPF Pension Scheme as he had not given an option within the time covered by Annexure R7. Without any challenge to Annexure R8 from the applicant, the Tribunal went wrong in forming such conclusions, is the submission of the learned counsel. It is also contended that the applicant, who was appointed as a Steno Typist in the Department on 21.2.1972 ever since his appointment till his retirement on superannuation had contributed only to the CPF Pension Scheme and not under the GPF Pension Scheme. 8. After the 4th Pay Commission submitted its recommendations for Pay Revision of the W.P.(C).No.22574 of 2009 :: 11 :: Central Government employees, accepting the recommendations thereof, Annexure R7 official memorandum dated 1.5.1987 was issued by the Government of India, that unless option is exercised by the employees, who are contributing to the CPF Pension Scheme and those governed by that scheme within the period specified, they shall be deemed to have switched over to the GPF Pension Scheme. A cut of date for exercising the option was fixed as 30.9.1987. Pursuant to Annexure R7, the Department of Space issued Annexure R8 dated 21.10.1987 where under the period of option to switch over to GPF Pension Scheme by the employees who subscribed to the CPF Pension Scheme in that Department was extended upto 31.12.1987. In response to Annexure R8, admittedly, the applicant has exercised his W.P.(C).No.22574 of 2009 :: 12 :: option to continue under the CPF Pension Scheme, Annexure A10. That option exercised under Annexure A10 was beyond the period prescribed under Annexure R7 issued by the Union of India, is the sheet anchor of the case canvassed by the applicant to contend that he should be deemed to have switched over to the GPF Pension Scheme as he had not exercised his option within the period mandated and Annexure R10 option exercised by him pursuant to Annexure R8 is only to be ignored as of no consequence. The Tribunal, it is seen, accepted the case of the applicant relying upon “Union of India and another v. S.L.Varma and others” {2006(12) SCC 53}. The Tribunal, it appears, has not noticed that there is no challenge against Annexure R8 issued by the Department of Space/ISRO and what is provided W.P.(C).No.22574 of 2009 :: 13 :: in Annexure R8 is only an extended period to the employees under that Department in exercising their option as to whether they wish to continue in the CPF Pension Scheme. Annexure R8 official memorandum reveals that it has been issued in consultation with the Department of Pension and Pensioners' Welfare, which had issued Annexure R7 official memorandum. In effect, it has to be noticed that both Annexures R7 and R8 official memorandums have been issued by the Government of India. When there was no challenge against Annexure R8 by the applicant and he had exercised an option under that Annexure to continue in the CPF Pension Scheme, there was no scope for any enquiry by the Tribunal, leave alone the question of any finding, as to the validity of Annexure R8 official memorandum. W.P.(C).No.22574 of 2009 :: 14 :: 9. The decision relied by the applicant and accepted as such by the Tribunal, namely, “Union of India and another v. S.L.Varma and others” {2006(12) SCC 53} has no application to the facts of the case. In that case, the employees did not exercise any option to continue under the CPF Scheme, but still the employer proceeded under the misconception that non-exercise of option would disentitle the employee to switch over toe GPF Scheme. Analysing the above circumstances, the apex court observed thus: “The Central Government, in our opinion, proceeded on a basic misconception. By reason of the said office memorandum dated 1.5.1987 a legal fiction was created. Only when an employee consciously opted for to continue with the CPF Scheme, he would not become a member of the Pension Scheme. It is not disputed that the said respondents did W.P.(C).No.22574 of 2009 :: 15 :: not give their options by 30.9.1987. In that view of the matter Respondents 1 to 13 in view of the legal fiction created, became the members of the Pension Scheme.” (Emphasis supplied) 10. In the present case, the applicant in the OA, did exercise the option to continue in the CPF Scheme within the period provided by the employer under Annexure R8, and it was accepted. Challenge raised in the OA is against the order of rejecting his representation belatedly filed to switch over to the GPF Pension Scheme providing an extended period to exercise the option to do so. Case canvassed by the applicant was not one of nonexercise of option, but for extension of time, to exercise a fresh option to come under the pension scheme. A8 representation dated 9.1.2006 of the applicant, which had been W.P.(C).No.22574 of 2009 :: 16 :: rejected by A10 reads thus: “Sir, prior to last option in 1987, I had opted for GPF in 1985, but unfortunately, by oversight or misplacement I remained in CPF and was again asked for option in 1989 and due to certain peculiar situation at that time I opted for CPF and since then I am begging for one more option chance to GPF.” That being so, the reported decision has no application to the present case. 11. We also do not find any parallel or connection for the present case with the decision relied by the counsel for the respondents, namely “KVS and other v. Jaspal Kaur and another” {2007(6) SCC 13}. In that case, whether secondary evidence produced by the appellant showing that the employee had exercised an option to continue in the CPF Pension Scheme was acceptable or not was the W.P.(C).No.22574 of 2009 :: 17 :: question considered. The claim of a teacher in Kendriya Vidya Sankethan to be governed by the GPF Pension Scheme after having given an option earlier to continue under the CPF Pension Scheme was upheld by the Tribunal and also by the High Court for the reason that the appellant employees did not produce the original option given by the employee. Secondary evidence produced by the respondent was held to be sufficient by the Apex Court to conclude that the option exercised by the employee to continue in the CPF Pension Scheme was final and the rejection of the request belatedly made by that employee to change over to the GPF Pension Scheme correct. In that case the facts involved disclose that no question arose whether the option exercised by the employee to continue in the CPF Scheme W.P.(C).No.22574 of 2009 :: 18 :: during the extended period provided by the employer was proper and correct. It has also to be noticed that the appellant in that case was Kendriya Vidya Sanketan, an autonomous body. In the present case, Annexures R7 and R8 are issued by two departments, both under the Government of India, and in effect, the Annexures are issued by the Union of India. What is evident from examining Annexures R7 and R8 is that in the case of employees of Department of Space by virtue of Annexure R8 the employees of that Department governed by the CPF Scheme were given an extended period to exercise option whether they wished to continue under the CPF Pension Scheme informing them that if option was not exercised within the cut off date, they would be treated as covered by the GPF Pension Scheme. The applicant in the W.P.(C).No.22574 of 2009 :: 19 :: present case had consciously given Annexure R10 option to continue in the CPF Pension Scheme within the cut off dated i.e. 31.12.1987, and till he retired on superannuation continued to subscribe contribution only under that scheme. Probably, in view of the recommendations made by the Vth and VIth Pay Revision Commissions, the applicant noticed it is more advantageous to switch over to GPF Pension Scheme since the pensionary benefits extended to the employees governed by that scheme has undergone a seachange. So much so, at a belated stage, long after giving Annexure R10 option, he has moved the representation to switch over to GPF Pension Scheme. An option once exercised by the employee is final and the decision taken by the respondents in the original application (writ petitioners) to reject that W.P.(C).No.22574 of 2009 :: 20 :: representation vide Annexure A10 order is within their competence and authority. True, there was some delay in considering the representation and it was rejected only on the date of retirement on superannuation of the applicant. But that circumstance in no way enure to the benefit of the applicant, nor entitle him to raise any claim to be governed by the GPF Pension Scheme. Challenge against Annexure A10 order, which was canvassed in the original application, without impeaching the validity of Annexure R8 and the orders accepting the option given by him under that Annexure and accepted by the Department, in the given facts of the case, has no merit at all. 12. The impugned order passed by the Tribunal allowing the OA in the facts and circumstances of the present case, cannot be W.P.(C).No.22574 of 2009 :: 21 :: sustained. Ext.P7 order passed by the Tribunal is set aside, and the original application shall stand dismissed. Writ petition is allowed. Sd/- (P.R.RAMAN) ACTING CHIEF JUSTICE Sd/- (S.S.SATHEESACHANDRAN) JUDGE SK/- //true copy//