Case: UNIVERSITY OF DELHI Vs. SMT. SHASHI KIRAN &amp; ORS. ETC

between CPF and GPF was always in existence and as held by the Constitution Bench of this Court in Krishena Kumar vs. Union of India and others (1990) 4 SCC 207, the rules governing the Provident Fund and its contribution would be entirely different from the rules governing the Pension Scheme. b) Under the notification dated 01.05.1987, the choice was completely left to the employees and it was purely optional. An optional scheme involving financial decisions could not be converted into a compulsory scheme. c) Comparison with employees of IITs, Department of Atomic Energy and Insurance Companies was impermissible as the employees of the University and these organizations did not form a homogeneous class. Their terms and conditions of service, financing pattern and financing departments were completely different. 11. Number of learned senior counsel and other learned counsel appeared on behalf the respondents-employees and submitted: - a) Though, notification dated 01.05.1987 was to the knowledge of everyone, the subsequent extensions and chances to switchover granted by the University were not brought to the knowledge of all the employees and the respondents were thus prejudiced. b) If the mandate under the notification dated 01.05.1987 was to be followed scrupulously, the University could not have granted subsequent option of switchover. But 2469 employees were allowed to come over to GPF after the cut-off date. Going by various communications placed before the Court, such employees were allowed full benefits under GPF. The case of the present respondents-employees was not, in any way, different from such 2469 employees. c) The University being a Central University, its employees would rank on similar footing as that of the organisations like IITs and AIIMS. If extensions were granted to employees of the IITs, the employees of the University were also entitled to similar benefit. d) The Division Bench was, therefore, justified in setting aside the view taken by the learned Single Judge of the High Court in Shashi Kiran batch of cases but affirming the view in other two batches. 12. 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 01.05.1987 was clear that if no option was exercised by the concerned employees 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 switchover from those who had consciously opted to be under CPF. Further, relying on the decision in S.L. Verma (2006) 12 SCC 53, 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.K. 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. 13. However, the learned Single Judge observed that 2469 employees who were given facility of such switchover after the cut-off date, though they had also consciously opted to be under CPF, were not before the Court, and as such, their cases had to be left untouched. It is a matter of record and which aspect is clear from the communications referred to in paragraph 8 hereinabove that most of those 2469 employees, at the time of retirement, were given all the benefits that were available to those who had opted to be under GPF. Thus, those 2649 employees were certainly allowed to avail the benefit of switchover which was not granted in favour of the employees in the third batch of cases. 14. Affirming the view taken by the learned Single Judge in the first two batches of cases, the Division Bench set aside the view of the learned Single Judge only in the third batch of cases i.e. in Shashi Kiran batch of cases. As the observations made by the Division Bench indicate, the matter was placed on the ground of discrimination and principles of equality. 15. According to the notification dated 01.05.1987 two situations were contemplated. First, the deeming provision in terms of which the concerned employee 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 concerned employees must be deemed to have come over to GPF. Logically, it would be immaterial whether the concerned employee continued to make contribution assuming himself to be covered under CPF, even though contributions were made by the concerned authorities. 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. Theoretically, extension of the same principle would be that if no option was exercised before the cut-off date, but an option was exercised after the cut-off date was extended; and if no switchover could be allowed after the cut- off date, the decisions rendered by the learned Single Judge and the Division Bench in the N.C. Bakshi batch of cases were also quite correct. Consequently, irrespective of the fact that the concerned employees had exercised the option to continue to be under CPF, such exercise of option would be non est in the eyes of law. That in fact is the ratio of the decision in S.L. Vermas (2006) 12 SCC 53 case.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]15. According to the notification dated 01.05.1987 two situations were contemplated. First, the deeming provision in terms of which the concerned employee 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 concerned employees must be deemed to have come over to GPF. Logically, it would be immaterial whether the concerned employee continued to make contribution assuming himself to be covered under CPF, even though contributions were made by the concerned authorities. 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.Theoretically, extension of the same principle would be that if no option was exercised before the cut-off date, but an option was exercised after the cut-off date was extended; and if no switchover could be allowed after the cut- off date, the decisions rendered by the learned Single Judge and the Division Bench in the N.C. Bakshi batch of cases were also quite correct. Consequently, irrespective of the fact that the concerned employees had exercised the option to continue to be under CPF, such exercise of option would be non est in the eyes of law. That in fact is the ratio of the decision in S.L. Vermas (2006) 12 SCC 53  case.17. As indicated by the University in its affidavit filed after the Order dated 02.03.2020 was passed by this Court, 2611 employees had opted to be under CPF Scheme by the cut-off date, i.e. by 30.09.1987. Additionally, 626 employees exercised the option to be under CPF after the original cut-off, but within initial two extensions granted by the University. Thus, as against the entire body of employees of the University, 3237 (2611+626) employees had exercised the option to be under CPF. Out of these 3237 employees, by virtue of further extensions granted by the University, about 2469 employees exercised the reverse option and opted to come over to GPF, leaving only 768 (3237-2469) employees to be under CPF. The answers to queries d and e given by the University in its affidavit indicate that the number of employees in CPF Scheme was 86 while the petitioners in Shashi Kiran batch were 75. We are, thus, concerned with 75 original petitioners in Shashi Kiran batch of cases.18. In Krishena Kumar (1990) 4 SCC 207,  the distinction between the Provident Fund Scheme and the Pension Scheme was considered by the Constitution Bench of this Court. In that case, the employees who had joined the service on or after 01.04.1957 were to get covered automatically by the Pension Scheme and insofar as employees who were already in service on 01.04.1957, they were given an option either to retain the Provident Fund benefits or to switchover to the pensionary benefits. About 12 extensions were thereafter granted so that the options could be exercised by the employees within the extended time. Those who had chosen not to exercise such option, were before this Court. The basic nature of the Scheme was discussed in paragraph 7 of the decision as under:-7. We may now examine these options. The Railway Boards letter No. F(E) 50-RTI/6 dated November 16, 1957 introduced the pension scheme for railway servants. It said that the President had been pleased to decide that the pension rules, as liberalised vide Railway Boards Memo No. E-48 OPC-208 dated July 8, 1950 as amended or clarified from time to time should apply (a) to all Railway servants who entered service on or after issue of that letter and (b) to all non-pensionable railway servants who were in service on April 1, 1957 or have joined railway service between that date and the date of issue of the order. The Railway servants referred to in para (b) were required to exercise an unconditional and unambiguous option on the prescribed form on or before March 31, 1958 electing for the pensionary benefits or retaining their existing retirement benefits under the State Railway Provident Fund Rules. It further said that any such employee from whom an option form prescribed for the employees option was not received within the above time limit or whose option was incomplete or conditional or ambiguous shall be deemed to have opted for the pensionary benefits and if any such employee had died by that date or on or after April 1, 1957 without exercising option for the pensionary scheme, his dues would be paid on the provident fund system. The period of validity of this option was first extended up to June 30, 1958, December 31, 1958, March 31, 1959 and lastly up to September 30, 1959. There could, therefore, be no doubt that those who did not opt for the pension scheme had ample opportunity to choose between the two.Reliance was placed by the petitioners before this Court on the decision in D.S. Nakara vs. Union of India (1983) 1 SCC 305. Paragraphs 16, 29 and 30 of the decision in Krishena Kumar (1990) 4 SCC 207  dealt with the issue as under:-16. As the basis or justification for striking or reading down paragraph 3.1 on Nakara (1983) 1 SCC 305  ratio, it is urged that all the Railway employees numbering about 22 lakhs comprising 16,22,000 in service and about 6 lakhs pensioners constitute one family and must be treated as one class as the governments obligation to look after the retired Railway employees both under the pension scheme and the provident fund scheme being the same, they could not be treated differently. Any differential treatment will be discriminatory and violative of Article 14 of the Constitution of India. In Nakara cas (1983) 1 SCC 305  the date arbitrarily chosen was struck down and as a result the revised formula for computing pension was made applicable to all the retired pensioners. The same principle, it is urged, has to be extended to the Provident Fund retirees also otherwise there would be discrimination. It is stated that though at the time of choosing between Provident Fund and Pension Scheme both the alternatives appeared to be more or less equal and the retired provident funders took their lump sum yet subsequently stage by stage the pensioners benefits were increased in such ways and to such extent that it became more and more discriminatory against the provident funders old and new. It was because of this discrimination that successive options were given by the Railway Board for the provident funders to become pensioners. Hence the submission that this limitation must go, and all the provident funders must be deemed to have become pensioners subject to the condition that the government contribution received by them along with interest thereon is refunded or adjusted. Obviously this gives no importance to the condition in the notifications that option once exercised shall be final and binding and to the fact that in each option a cut-off date was there related to the purpose of giving that option.*** *** ***29. The court in Nakara (1983) 1 SCC 305  was not satisfied with the explanation that the legislation had defined the class with clarity and precision and it would not be the function of this Court to enlarge the class. The court held in paragraph 65 of the report : (SCC pp. 344-45, para 65)With the expanding horizons of socio-economic justice, the Socialist Republic and Welfare State which we endeavour to set up and largely influenced by the fact that the old men who retired when emoluments were comparatively low and are exposed to vagaries of continuously rising prices, the falling value of the rupee consequent upon inflationary inputs, we are satisfied that by introducing an arbitrary eligibility criterion : being in service and retiring subsequent to the specified date for being eligible for the liberalised pension scheme and thereby dividing a homogeneous class, the classification being not based on any discernible rational principle and having been found wholly unrelated to the objects sought to be achieved by grant of liberalised pension and the eligibility criteria devised being thoroughly arbitrary, we are of the view that the eligibility for liberalised pension scheme of being in service on the specified date and retiring subsequent to that date in impugned memoranda, Exs. P-1 and P-2, violates Article 14 and is unconstitutional and is struck down. Both the memoranda shall be enforced and implemented as read down as under : In other words, Ex. P- 1, the words : that in respect of the government servants who were in service on March 31, 1979 and retiring from service on or after that date; and in Ex. P-2, the words : the new rates of pension are effective from April 1, 1979 and will be applicable to all service officers who became/become non- effective on or after that date are unconstitutional and are struck down with this specification that the date mentioned therein will be relevant as being one from which the liberalised pension scheme becomes operative to all pensioners governed by 1972 Rules irrespective of the date of retirement. Omitting the unconstitutional part it is declared that all pensioners governed by the 1972 Rules and Army Pension Regulations shall be entitled to pension as computed under the liberalised pension scheme from the specified date, irrespective of the date of retirement. Arrears of pension prior to the specified date as per fresh computation is not admissible.30. Thus the court treated the pension retirees only as a homogeneous class. The PF retirees were not in mind. The court also clearly observed that while so reading down it was not dealing with any fund and there was no question of the same cake being divided amongst larger number of the pensioners than would have been under the notification with respect to the specified date. All the pensioners governed by the 1972 Rules were treated as a class because payment of pension was a continuing obligation on the part of the State till the death of each of the pensioners and, unlike the case of Contributory Provident Fund, there was no question of a fund in liberalising pension.The distinction between two Schemes was dealt with in Paragraph 32 of the decision as under:-32. In Nakara (1983) 1 SCC 305  it was never held that both the pension retirees and the PF retirees formed a homogeneous class and that any further classification among them would be violative of Article 14. On the other hand the court clearly observed that it was not dealing with the problem of a fund. The Railway Contributory Provident Fund is by definition a fund. Besides, the governments obligation towards an employee under CPF Scheme to give the matching contribution begins as soon as his account is opened and ends with his retirement when his rights qua the government in respect of the Provident Fund is finally crystallized and thereafter no statutory obligation continues. Whether there still remained a moral obligation is a different matter. On the other hand under the Pension Scheme the governments obligation does not begin until the employee retires when only it begins and it continues till the death of the employee. Thus, on the retirement of an employee governments legal obligation under the Provident Fund account ends while under the Pension Scheme it begins. The rules governing the Provident Fund and its contribution are entirely different from the rules governing pension. It would not, therefore, be reasonable to argue that what is applicable to the pension retirees must also equally be applicable to PF retirees. This being the legal position the rights of each individual PF retiree finally crystallized on his retirement whereafter no continuing obligation remained while, on the other hand, as regard Pension retirees, the obligation continued till their death. The continuing obligation of the State in respect of pension retirees is adversely affected by fall in rupee value and rising prices which, considering the corpus already received by the PF retirees they would not be so adversely affected ipso facto. It cannot, therefore, be said that it was the ratio decidendi in Nakara (1983) 1 SCC 305  that the States obligation towards its PF retirees must be the same as that towards the pension retirees. An imaginary definition of obligation to include all the government retirees in a class was not decided and could not form the basis for any classification for the purpose of this case. Nakara (1983) 1 SCC 305  cannot, therefore, be an authority for this case.Having observed that the Pension Scheme and the Provident Fund Scheme were structurally different, it was then concluded that the retirees in both categories did not belong to the same class and that there was no discrimination. The challenge was, therefore, rejected.20. Krishena Kumar (1990) 4 SCC 207  was a case where the retirees from two categories namely Pension Fund and Provident Fund, were taken to be distinct and different and as such the plea on the ground of discrimination was rejected. As the Judgment of the Division Bench discloses, the matter was considered by it from the standpoint of discrimination between the same category of persons, that is to say, those who had opted to be under CPF. The different groups in the same category were:-a) Those who had not exercised any option but continued to make payment of contribution towards CPF (R.K. Virmani batch of cases).b) Those who exercised the option to be under CPF but the option was exercised after the cut-off. Since the option was exercised after the cut-off, they were deemed to have come over to GPF and were granted benefit (N.C. Bakshi batch of cases).c) Those who consciously exercised the option to be under CPF; but taking advantage of further options granted through 11 extensions to switchover, had been allowed to come over to GPF (2469 employees).21. It was against these three sub categories coming from the same category of employees that the argument of discrimination was considered by the Division Bench. Such was not the case in Krishena Kumar (1990) 4 SCC 207  or Rajasthan Rajya Vidyut Vitran (2015) 12 SCC 51 .The matter was further considered by the Division Bench in the context of the employees of educational institutions such as IITs, who are directly under the Central Government, just as the employees of the University, which is a Central University. If the option was allowed to be exercised by granting extension to the employees of the other educational institutions, the Division Bench did not find any reason why similar choice/option could not be given to the employees in Shashi Kiran batch of cases.Additionally, the feature that has been presented through the documents which have subsequently come on record is that even with respect to the employees of Insurance Corporations similar options and extensions were granted.22. The differential treatment afforded to those 2469 employees as against the employees in Shashi Kiran batch of cases, was not founded on any rationale. No justifiable reason was coming forth. If those 2469 employees could be afforded chance to exercise an option of switchover to GPF, even though they had consciously opted to be under CPF, on principle of parity or equality, the case was certainly made out.23. We may now consider the matter from the perspective of financial impact if the decision of the Division Bench is affirmed.24. According to the notification dated 01.05.1987, the employees joining the service after 01.01.1986 would always be under GPF. With respect to those who were in service on 01.01.1986, 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 concerned authorities 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 01.01.1986 would normally be covered by GPF. It is in this context that the number of original petitioners in Shashi Kiran 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 switchover and they were allowed all the benefits under GPF. It can reasonably be said that when the notification dated 01.05.1987 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 paragraph 20 of his Judgment in R.N. Virmani batch of cases and which aspect was mentioned in the letter dated 23.01.2017 referred to in paragraph 8 hereinabove, for recouping the contribution under CPF with 8% simple interest per annum.