UNIVERSITY OF DELHI VS SMT. SHASHI KIRAN & ORS. ETC

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2022

(Arising out of Special Leave Petition (Civil) Nos. of 2022)

(Arising out of Diary No. 13901 of 2017)

UNIVERSITY OF DELHI …Appellant

versus

SMT. SHASHI KIRAN & ORS. ETC. …Respondents

WITH

CIVIL APPEAL NO. OF 2022

(Arising out of Special Leave Petition (Civil) Nos._________of 2022)

(Arising out of Diary No. 36222 of 2018)

UNIVERSITY OF DELHI …Appellant

versus

C.L. KHANNA (RETD.) & ORS. …Respondents

WITH

CIVIL APPEAL NO. OF 2022

(Arising out of Special Leave Petition (Civil) Nos.________ of 2022)

(Arising out of Diary No. 36221 of 2018)

UNIVERSITY OF DELHI …Appellant

versus

DR. S.N. SINGH …Respondent

WITH

CIVIL APPEAL NO. OF 2022

(Arising out of Special Leave Petition (Civil) No.29577 of 2018)

UNIVERSITY OF DELHI …Appellant

versus

DR. SANTOSH KAUR SANGARI & ORS. …Respondents

AND WITH

CIVIL APPEAL NO. OF 2022

(Arising out of Special Leave Petition (Civil) Nos.________ of 2022)

(Arising out of Diary No.17007 of 2017)

UNIVERSITY OF DELHI …Appellants

versus

N.C. BAKSHI & ORS. ETC. …Respondents

J U D G M E N T

Uday Umesh Lalit, J.

1. Delay condoned. Leave granted.

2. These appeals by the University of Delhi (‘the University’, for short)

are directed against the judgment and order dated 24.08.2016 passed by the

Division Bench of High Court of Delhi at New Delhi in Letters Patent

Appeals1 which in turn had challenged the decisions of the learned Single

Judge of the High Court dated 30.04.2014 in various Writ Petitions2

3. The basic facts leading to the filing of the Writ Petitions in the High

Court are as under:

a. All the writ petitioners are members of the teaching staff working in

various colleges and institutions which are either affiliated to, or are

part of the University. The conditions of service of the teaching staff

are somewhat analogous to the employees of the Central

Government.

b. On 06.06.1985, the Central Government employees who were

governed by the Contributory Provident Fund (for short, “CPF”)

were permitted to opt for General Provident Fund and Pension

Scheme (for short, “GPF”). Thereafter a notification was issued by

the Central Government with respect to the changeover of the

LPA Nos.410-414, 416-418, 558, 594, 667, 672 and 780 of 2014; 554, 606, 607, 608, 609, 610, 615, 616, 617, 618,

619, 622, 623, 624, 625, 626, 627, 628, 629, 632, 633, 635, 636, 637, 638, 639, 640, 641, 642, 643, 644, 645, 646,

647, 648, 650, 651, 653, 654, 655 of 2014 and other connected appeals.

2 Writ Petition No. 1490 of 2006 and connected matters, Writ Petition(C) Nos. 5631 of 2010, 1216 of 2011, 3631 of

2011, 3863 of 2011, 5495 of 2011, W.P.(C)No. 6009 of 2011 & CM No. 12140 of 2011, W.P.(C)No.5106 of 2011 & CM

No. 10351 of 2011, W.P.(C)No.5975 of 2010 & CM No. 11775 of 2010, W.P.(C)No. 5979 of 2010 & CM No.11782 of

2010, W.P.(C)No.5980 of 2010 & CM No. 11784 of 2010, W.P.(C)No.5981 of 2010, W.P.(C)No.5982 of 2010 & CM No.

11787 of 2010, W.P.(C)No. 5985 of 2010 & CM No. 11793 of 2010; W.P.(C)No.2036 of 2010, W.P.(C)No.2037 of

2010, W.P.(C)No.3095 of 2010 & CM No. 7718 of 2011, W.P.(C)No. 5759 of 2010, W.P.(C)No.7310 of 2010 and

W.P.(C)No.8560 of 2010.

employees from CPF to GPF. Said notification issued on 1.5.1987

contemplated that all CPF beneficiaries who were in service on

01.01.1986 and were still in service would be deemed to have “come

over” to GPF unless a contrary option was exercised by them in

writing by 30.09.1987 to continue to be under CPF. The relevant

paragraphs of said notification were:

“The Central Government employees who are governed by the

Contributory Provident Fund Scheme (CPF Scheme) have been

given repeated options in the past to come over to the Pension

Scheme. The last such option was given in the Department of

Personnel and Training. O.M. No. F 3 (1) - Pension Unit/85, dated

the 6" June, 1985. However, some Central Government employees

still continue under the CPF Scheme. The Fourth Central Pay

Commission has recommended that all CPF beneficiaries in service

on January 1, 1986, should be deemed to have come over to the

Pension Scheme on that date unless they specifically opt out to

continue under the CPF Scheme.

2. After careful consideration, it has been decided that the said

recommendation shall be accepted and implemented in the manner

hereinafter indicated.

3.1 All CPF beneficiaries, who were in service on 1stJanuary, 1986,

and who are still in service on the date of issue of these orders viz.,

st May, 1987) will be deemed to have come over to the Pension

Scheme.

3.2 The employees of the category mentioned above will, however,

have an option to continue under the CPF Scheme, if they so desire.

The option will have to be exercised and conveyed to the concerned

Head of Office by 30-9-1987, in the form enclosed if the employees

wish to continue under the CPF Scheme. If no option is received

by the Head of Office by the above date the employees will be

deemed to have come over to the Pension Scheme.

*** *** ***

3.6 The option once exercised shall be final.

*** *** ***

6.3 These orders do not also apply to scientific and technical

personnel of the Department of Atomic Energy, Department of

Space, Department of Electronics and such other Scientific

Departments as have adopted the system prevailing in the

Department of Atomic Energy. Separate orders will be issued in

their respect in due course. [See Order (3) in this Appendix.]

8. These orders issue with the concurrence of the Ministry of

Finance, Department of Expenditure, vide their U.O.

No.2038/IS(Pers.)/87, dated 13-4-1987.”

c. Around the same time, a communication was addressed on

05.05.1987 by the Central Government to the Registrar of the

University stating that the Hon’ble President of India in his capacity

as Visitor of the University was pleased to approve the proposal of

the University for amending Statute 28A, giving benefits to its

employees relating to GPF, CPF, gratuity etc. “which are more

advantageous to the employees of the University in pursuance to

similar order issued by the Central Government with respect to their

own employees”. The amended Statute 28-A read as under:

“28-A: In this Statute unless there is anything repugnant in the

subject or context:

(1) * * * *

(2) * * * *

(3) * * * *

(4) * * * *

(5) The sanction and payment of retirement benefits admission

under this Statute shall regulated by such procedural instructions

as would be issued by the Executive Council.

Amendment approved:

Add the following as Clause 5 in Statute 28-A and Clause

5 and 6 may be renumbered as Clause 6 and 7 respectively.

“(5) As and when the Central Government amends Rules giving

more benefits to its employees relating to General Provident

Fund, Contributory Provident Fund, Pension Gratuity, etc. which

are advantageous to the employees of the University, the

employees of the University will be entitled to the same benefits

with effect from the date such amendment is brought into force

by the Central Government with respect to its employees.”

(6) * * * *

(7) * * * *”

d. Close on the heels, a notification was issued by the University on

25.05.1987 stating that all CPF beneficiaries in service on

01.01.1986 would be deemed to have “come over” to GPF under

Statute 28-A unless such employees had opted to continue under

CPF. Paragraph ‘5’ of the notification was to the following effect:

“5. Pensionary benefits to temporary employees - Temporary

employees, who retire on superannuation or on being declared

permanently incapacitated for further service by the appropriate

medical authority after having rendered temporary service of not

less than 10 years, shall be eligible for grant of superannuation/

invalid pension, retirement gratuity and family pension on the

same scale as admissible to permanent employees.

Further it has also been decided by the Government of India that

pensioners who have commuted a portion of their pension and on

1.4.85 or thereafter have completed or will complete 15 years

from their respective dates of retirement will have their

commuted portion of pension restored.

lt was also recommended by the Pay Commission that all CPF

beneficiaries who are in service on 1.1.1986 should be deemed to

have come over to the pension scheme on that dates unless they

specifically opt out to continue under the CPF Scheme. This

recommendation has also been accepted by the Government of

India.

Keeping in view the revised pensionary benefits, it has been

approved by the Vice-Chancellor that the above decision of the

Government of India regarding option also be adopted in the

University. It has, therefore, been decided that all Contributory

Provident Fund beneficiaries who are in service on 1.1.1986 in

the University should be deemed to have come over to the pension

scheme under Statute 28-A Appendix ‘A’ unless they specifically

opt out to continue under CPF Scheme (Statute 28-A, Appendix

‘B’).

It has further been decided that in respect of categories B, C & D

beneficiaries for whom the revised grades have been announced

and implemented, they be given three months’ time from the date

of this notification for opting out to continue under CPF Scheme

(Statute 28-A Appendix ‘B'). For category A - CPF beneficiaries

the period of three months’ time for the same purpose will be

reckoned from the date of adoption by the University of the

revised pay scales based on the IVth Pay Commission's

recommendations, UGC committee's Report. Employees who

have already opted for the scheme under Statute 28-A Appendix

'A' will not be eligible for any further option. These orders ‘would

also -be applicable to the employees of the Colleges affiliated to

the University of Delhi and receiving maintenance grant from ‘the

‘University Grants Commission. The contents of this notification

shall be brought to the notice of each employee and his/ her

acknowledgement for having noted these orders obtained and opt

in the office record.”

e. By cut-off date, that is to say by 30.09.1987, 2611 employees of the

University had opted to continue under CPF while the rest of the

employees, by virtue of deeming provision of the concerned

notification referred to above, were deemed to have “come over” to

GPF.

f. However, the University kept granting extensions for exercise of

option to remain under CPF. First two extensions were, thus,

granted vide communications dated 5.10.1987 and 21.01.1988 for

exercising the option to remain under CPF. About 626 employees

exercised such option to continue under CPF during two extensions

granted by the University.

g. Thereafter 11 further options were granted by the University

whereunder there could be a switchover from CPF to GPF. These

options were granted vide Notifications dated 9.2.1989, 4.6.1989,

17.9.1989, 12.07.1991, 20.12.1991, 16.07.1993, 12.07.1994,

15.03.1996, 09.01.1998, 04.03.1998 and 16.11.1998. The cutoff

date for exercise of option under the last notification was 31.1.1999.

About 2469 employees exercised option during periods covered by

these 11 notifications to switchover from CPF to GPF.

h. On 25.5.1999, a letter was addressed by the University Grants

Commission (“the UGC”, for short) to the Registrar of the

University stating that the option in terms of the notification dated

01.05.1987 issued by the Central Government could be exercised

only upto 30.09.1987; and if no option was received by said date the

employees were deemed to have “come over” to the pension scheme

and thus, option once exercised, was final. Further, the revised

option given by the University to the concerned employees to switch

over from CPF to GPF after the deadline was incorrect and

therefore, the cost of benefit, if any, to such employees must be met

by the University from its own sources. The relevant portion of the

communication was:

“As you are already aware, the employees of University of Delhi

are governed by Central Government GPF/CPF rules. The

Government of India vide their O.M.No.4/I/87-P.I.C, dated the

1st May, 1937 (copy enclosed) had given a cut-off date as

30.09.87 to the employees for exercising their option in case they

desired to continue to be governed by the CPF Scheme, and in

case no such option was exercised by the above date all the

employees were deemed to have come over to the GPF Scheme

of the Government of India. It was also made clear that no

extension for exercising option for continuing in the CPF scheme

will be admissible as per Government of India's rules after

30.9.87.

As per guidelines of Government of India, all CPF who were In

service on 1st January,1986, and who are still in service on the

date of issue of these orders (viz. 1st May, 1987) have therefore

automatically come over to the Pension scheme. However, the

employees who have exercised an option to continue under the

CPF scheme, if they so desired have done so after due

consideration by the specific date i.e. 30.09.87. As the option was

given upto 30.9.87 and it was clearly stated in the order that if no

option is received by the above date the employees will be

deemed to have come over to the Pension Scheme and the option

once exercised shall be final. The revised option again given by

the employees to come back to GPF Scheme from CPF Scheme

and accepted by the University is absolutely incorrect and against

the rule. I would therefore request you to please furnish a list of

employees who have been given the extension of change over

from CPF to GPF after 30.9.87 and the benefit of retirement

liabilities for such employees may be met by the University from

their own sources and the same would only be treated as

unapproved expenditure while determining the maintenance grant

of the University. The next installment of maintenance grant

would only be released after the receipt of above information.”

i. In response to a communication dated 18.09.1999 addressed by the

UGC with respect to the subject regarding option of shifting from

CPF to GPF, the Ministry of Human Resource Development,

Department of Secondary Education and Higher Education,

Government of India (“MHRD” for short) responded on 19.06.2000

and stated:

“…. That Ministry has regretted its inability to allow one more

option to change over from CPF Scheme to the GPF Scheme to

the employees of UGC and the institutions maintained by it.”

j. On 8.08.2001, the UGC again requested MHRD to allow one

extension for exercise of option to switch over from CPF to GPF.

The proposal was, however, rejected by the Finance Ministry of the

Central Government on the ground that the cost of introduction of

pension scheme was much higher than the CPF and that such cost

would continuously increase with every revision in the scale of pay

and further that acceptance of such proposal would have wide

repercussions with many similarly placed autonomous bodies

demanding similar extension.

4. In these circumstances, Writ Petitions were filed in the High Court

claiming diverse reliefs. These petitions, by order dated 21.05.2012 passed

by the learned Single Judge of the High Court, were categorized into three

categories.

a. Employees who had not exercised any option at all and thus by

virtue of the deeming provisions contemplated in the notification

dated 01.05.1987, were deemed to have “come over” to GPF; but

having continued to make contributions under the old CPF scheme

were being treated to be under CPF. This batch was subsequently

referred to as “R.N. Virmani batch of cases” in the decisions

rendered by the High Court.

b. Employees who had not exercised the option by the cutoff date

contemplated under the notification dated 01.05.1987 and were thus

deemed to have “come over” to GPF; however, such employees had

exercised the option to remain under CPF scheme during first two

extensions granted by the University between 01.10.1987 to

29.02.1988; and were now praying that they be allowed to be under

GPF. This batch of cases was described to be “N.C. Bakshi batch of

cases” in the decisions rendered by the High Court.

c. Employees who had exercised positive option by 30.09.1987 i.e. by

the original cutoff date contemplated under notification dated

1.5.1987 and had chosen to remain under CPF Scheme; but were

now demanding that they be given further option and were therefore

praying for extension of the cut-off date to enable them to “come

over” to GPF. This group of matters was referred to as “Shashi

Kiran batch of cases” in the decisions rendered by the High Court.

5. Thus, the employees in all three batches of cases desired to be under

GPF rather than under CPF and were therefore praying for a chance to

facilitate such switchover. The reason for such attempts was spelt out with

clarity in one of the letters3

addressed by the University to the UGC as under:

"...I have received representations from 376 teachers of

constituent colleges and departments of this University addressed

to the Chairperson, UGC, requesting for the grant of a fresh

option to switch over from the CPF to the GPF cum pension

scheme. All of them were appointed before 1.1.1986. The

representations have drawn attention to the huge disparity

between those on the GPF cum pension scheme and those on the

CPF scheme. This is because over the years and especially in the

last few years - Government decisions have led to a situation

where those entitled to pensionary benefits have been placed in a

far more advantageous position that those entitled to CPF

schemes. As a result of the Fifth Pay Commission's

recommendations, 40% of pensions can now be commuted,

giving a huge lump payment to pensioners. The communication

is restored after fifteen years. Those on CPF get only a lump

payment which includes their own contribution. Pensions are now

fully indexed to inflation and their nominal value rises twice

every year, in the case of those on CPF, the Government - keeping

in view its overall fiscal and macro-economic strategy has

reduced interest from a high of 12% in 1998 to 8% today. While

the high interest rates which made CPF schemes attractive have

come down, the nominal value of pensions keeping going up

Letter dated 21.12.2006, which was extracted in the decisions of the learned Single Judge as well as the Division

Bench of the High Court.

because of inflation indexing. All this has created a significant

disparity between those on GPF-cum-pension and those on CPF

schemes. According to a rough calculation, this could run into

several lakh rupees over a period of time in the case of two

identically placed professors. I think there is merit in the request

that those who continue to be on the CPF scheme should be given

a fresh option to switch over to the GPF cum pension scheme

instead of taking the legalistic stand that those on CPF opted for

the scheme. The Government, as a fair employer, may kindly take

action to remove the growing inequality between those on CPF

and those on GPF cum pension schemes. I would, therefore,

request you to please take up the matter with the Ministry of HRD

and the Ministry of Finance to allow a fresh option to those on the

CPF scheme to come over to the GPF-cum-pension scheme..."

6. These three batches of cases were disposed by the learned Single Judge

of the High Court by three separate decisions dated 30.04.2014

A) R.N. Virmani batch of cases

i) The reasoning that weighed with the learned Single Judge was:-

“14. In my view, the answer to the question: as to whether

employees, who had not issued any overt communication with

regard to his / her desire to continue with the CPF Scheme, stood

covered by the Pension Scheme; would largely depend upon the

provisions of O.M. dated 01.05.1987, itself.

14.1 It is not in dispute before me that O.M. dated 01.05.1987 was

adopted by the University of Delhi vide notification dated

25.05.1987 read with notification dated 04.06.1987, pursuant to

an approval received in that behalf from its Vice Chancellor.

Therefore, much would depend, in my opinion, upon the language

of the relevant clause of O.M. dated 01.05.1987. The said O.M.

clearly applies to all employees who were CPF beneficiaries on

01.01.1986. Clause 3.1 read with clause 3.2 is plainly indicative

of the fact that all such employees, who are CPF beneficiaries,

shall be deemed, to have, come over to Pension Scheme unless

the employee(s) concerned submitted his or her option to continue

with the CPF Scheme. This option had to be submitted in the

prescribed form to the concerned Head of Office by 30.09.1987.

In case, no option was received by the Head of Office by

30.09.1987, employees were deemed to have come over to the

Pension Scheme. Therefore, by legal fiction once, the deeming

clause kicked-in, those who did not submit their option form for

continuation under the CPF Scheme stood covered by the Pension

Scheme.”

ii) To arrive at the conclusion as mentioned above, the learned Single

Judge relied inter alia upon the following passages from the decision of this

Court in Union of India and another v. S.L. Verma and others4

“..4. The Central Government as also the respondent No.14-

Bureau of Indian Standards have proceeded on some legal

misconception that it was obligatory on the part of the said

employees to give a positive option for the said purpose. For the

first time on 2.2.1999, the respondent No.14 requested the Union

of India for grant of another chance to the respondents to switch

over to pension scheme stating that they purported to have

exercised their option for CPF Scheme on the cut-off date.

7. 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 not give their options by 30.9.1987.

In that view of the matter respondent Nos. 1 to 13 in view of the

legal fiction created, became members of the Pension Scheme.

Once they became the member of the Pension Scheme,

Regulation 16 of the Bureau of Indian Standards (Terms and

Conditions of Service of Employees Regulations, 1988) had

become ipso-facto applicable in their case also. It may be that they

had made an option to continue with the CPF Scheme at a later

stage but if by reason of the legal fiction created, they became

members of the Pension Scheme, the question of their reverting

to the CPF would not arise. The respondent No.14 has correctly

arrived at a conclusion that an anomaly would be created and in

fact the said purported option on the part of respondent No.1 to

13 was illegal when a request was made by respondent No.14 to

the Union of India for grant of approval so that all those

employees shall come within the purview of the Pension Scheme.

In our opinion, the Ministry of Finance proceeded on a wrong

premise that the Pension Scheme was not in existence and it was

(2006) 12 SCC 53

a new one. Two legal fictions, as noticed hereinbefore, were

created, one by reason of the memorandum, and another by reason

of the acceptance of the recommendations of the Fourth Central

Pay Commission with effect from 1.1.1986. In terms of such legal

fictions, it will bear repetition to state, the respondent nos.1 to 13

would be deemed to have switched over to the pension WP(C)

1490-1507/2006 & connected matters Page 26 of 33 scheme,

which a fortiori would mean that they no longer remained in the

CPF scheme...”

(Emphasis supplied by the learned Single Judge)

iii) The argument made by the respondents was dealt with as under

“16. The argument raised before me by the respondents, which

veered towards approbation, was based on the fact that petitioners

had continued to contribute under the CPF Scheme. This

submission would not cut much ice with me, having regard to the

plain terms of O.M. dated 01.05.1987. If, the cover under the

Pension Scheme, gets triggered with effect from 30.09.1987, the

contribution by an employee and its receipt by the employer

clearly proceeds on a misconception of the provisions of O.M.

dated 01.05.1987. WP(C) 1490-1507/2006 & connected matters

Page 29 of 33 As a matter of fact, this very argument was repelled

by the Supreme Court, in S.L. Verma’s case, and I think, for good

reason. Consequently, there is no room for entertaining such an

argument. The relevant observations made in paragraph 7,

specific to this aspect, are, once again, extracted hereinafter.

“..It may be right they had made an option to continue with the

CPF Scheme at a later stage but if by reason of the legal fiction

created, they became members of the Pension Scheme, the

question of their reverting to the CPF would not arise..”

iv) It was therefore directed :-

“20. Having regard to the above discussion, the respondentsUniversity of Delhi/concerned Colleges will be entitled to recoup

their contribution under the CPF Scheme, if not already recouped,

with simple interest at the rate of 8% p.a.”

v) The petitions were thus allowed.

B) N.C. Bakshi batch of cases

i) While deciding this batch of cases, reliance was placed on the

decision in R.N. Virmani batch of cases to conclude that the option to

remain under CPF was exercised by the petitioners after the cut-off date

and only during extensions granted by the University, which extensions

were without any authority. It was observed:-

“In the judgment delivered by me in the batch of writ petitions, in

which the lead petition was numbered as : WP(C) 1490/2006-

1507/2006, titled as: Dr. R.N. Virmani and Ors. Vs. University of

Delhi and Anr., I have held that the provisions of the O.M. dated

01.05.1987 required a positive option to be given only if, an

employee was desirous of continuing with the CPF Scheme and

that too by 30.09.1987. In the event, no positive option was

received from an employee expressing his or her desire to

continue with the CPF Scheme then, the employee stood

automatically covered by the Pension Scheme by virtue of the

deeming legal fiction created under the provisions of the O.M.

dated 01.05.1987. This conclusion, I had reached after examining

the provisions of O.M. dated 01.05.1987, in particular, clauses 3.1

and 3.2 and the form appended to it. As noted in the said

judgement, this is also the view taken by the Supreme Court in

the case of Union of India and Anr. Vs. S.L. Verma and Ors.,

(2006) 12 SCC 53. For the sake of brevity, I am not detailing out

in extenso the rationale provided in the said judgement. The

observations made in the said judgment be read as part of the

present judgement……..

*** *** ***

4.2 Having regard to the aforesaid stand of the counsels for the

UGC, University of Delhi and concerned Colleges, the only

conclusion that I can come to is that notwithstanding the fact that

the petitioners in this batch of petitions had overtly expressed

their desire to continue in the CPF Scheme, they got automatically

covered by the Pension Scheme, once, the cut-off date of

30.09.1987, was crossed. Therefore, the objection qua delay and

latches cannot be sustained in case of these writ petitioners, save

and except, in those cases where the petitioners received, upon

retirement, without protest (either by filing an action in court or

otherwise) their benefits under the CPF Scheme. As explained in

Dr. R.N. Virmani’s judgement delay and latches will not get

attracted as the cause of action in these cases if not continuing, is

certainly recurring, each time the record was not corrected. (read

paragraphs 17.3 & 17.4 of Dr. R.N. Virmani’s judgment delivered

by me today along with this judgement). The availability of relief

to such petitioners, who collected their CPF benefit without

protest, one would deny, not on the interpretation of the

provisions of O.M. dated 01.05.1987, but on the grounds of

equity. The exercise of jurisdiction under Article 226 of the

Constitution being a discretionary remedy in such like cases, I

would not be persuaded to exercise my discretion. Furthermore,

once CPF benefits are collected without protest cause of action

will decidedly come to an end. Therefore, the captioned writ

petitions are allowed qua all the petitioners except vis-a-vis the

petitioner in WP(C) No. 5981/2010 and, in respect of petitioner

No.11 in WP(C) No.1216/2011.”

ii) Thus, with the exception of cases where CPF benefits were

collected by the concerned petitioners, all the petitions in this batch of

cases were allowed.

C) Shashi Kiran batch of cases

i) The relevant facts and submissions were set out as under:-

“(iv) that as per the additional affidavit filed by the University of

Delhi, which is impleaded as respondent no.4 in WP(C)

5759/2010, twelve (12) extensions were given by the said

University to the employees between 09.02.1989 to 16th/17th

.11.1998 and 20.11.1998 to 16.12.1998, to change over, from

CPF Scheme to the Pension Scheme. During this period, a total

number of 2469 employees both from University of Delhi and

from 52 of 86 colleges affiliated to the said University had availed

of the option of switch over to the Pension Scheme. Of these 2469

employees, 1368 had retired and were now in receipt of pension

from University of Delhi, out of the funds made available by the

UGC.

(v) The present petitioners and those who are part of the other

two batches of the petitions, heard by this court, thus, constituted

a small percentage of the total number of employees, who have

been allowed to switch over after the cut-off date of 30.09.1987,

was crossed over. …

*** *** ***

11.1 On being asked, as to what would be the position of the

GOI with regard to the pension liability already undertaken by the

University of Delhi vis-à-vis 2469 employees, Mr. Bajaj said that

the liability in that behalf would have to be born and adjusted by

the University of Delhi under the had ‘unapproved expenditure’.

11.2 I may note at this stage that a similar query was put to Mr.

Amitesh Kumar, the learned counsel appearing for UGC who,

took an identical stand on the issue. Mr. Bajaj, thus, made it a

point to draw my attention to the observations made in paragraph

8 at page 56 of the judgment of the Supreme Court in the case of

Union of India and Anr. vs. S.L. Verma and Ors., (2006) 12

SCC 53 in support of its stand that the GOI, could not be called

upon to bear the financial burden of the decision taken by the

University of Delhi, to extend the date of change over. Reliance

in this regard was also placed on the judgement of the Division

Bench of this court in the case of Union of India vs. UGC Class

1 Officers Association and Ors., (2006) 87 DRJ 783.”

ii) The effect of notifications issued by the University giving

extensions was considered as under:-

“15. This would bring me to the next argument advanced by

the counsel for the petitioners that no notice was given to the

petitioners in the manner prescribed in circular dated 09.02.1989

and notification dated 11.02.1998. This argument, in my opinion,

is once again mis-conceived for the following reasons:-

(i) First and foremost, having reached the conclusion that no

extensions could have been given by the University of

Delhi without due approval of the UGC or the GOI, the

entire argument is, in a sense, a non-started.

(ii) Second, the petitioners having given their positive options

to continue under the CPF Scheme in terms of O.M. dated

01.05.1987, as adopted by the University of Delhi, cannot

now resile from the said position.

(ii)(a) assuming without accepting that University of Delhi

could grant extensions, a careful reading of the circular dated

09.02.1989 would demonstrate that even as per the University the

circular was intended to give one more opportunity to those

employees of the University of Delhi or colleges affiliated to it,

which were, receiving maintenance grant from the UGC to “come

over to the pension Scheme.” The circular was not directed

towards those employees, who had consciously opted to remain

in the CPF Scheme. In other words, no come back situation was

contemplated in the said circular. …”

iii) The petitioners having consciously exercised the option to be

under CPF, the prayer that they be given opportunity to switchover

was not accepted and the petitions were dismissed.

D) The case of 2469 employees who were given chance to switchover

after the cut-off was dealt with as under:-

“17. Before I conclude I must only clarify that the argument of

the petitioners that 2469 employees had been allowed to switch

over even after they had their given their option to continue under

the CPF scheme and, thus, the respondents had discriminated

against this set of petitioners is, an argument, which cannot be

countenanced in law. As is well settled, by several judgements of

the Supreme Court that there is no equality in illegality (see M.K.

Sarkar’s case, paragraph 25 at page 69). If, the University of

Delhi, has wrongly permitted switch over to some of its

employees to the Pension Scheme contrary to the provisions of

O.M. dated 01.05.1987 as adopted by it, it cannot be the ground

to grant relief to the petitioners. Since, the case of those 2469

employees is not before me, I am not required to return a finding

on them. As indicated by counsel for UGC and the Union of India,

the expenditure, if any, on account of the said 2469 employees

can only be classified under the head, 'unapproved expenditure'

and, therefore, the financial burden if at all, in that behalf would

lie only on the University of Delhi.”

7. These decisions in all three batches of cases were appealed against by

the University before the Division Bench, which dealt with each of these

batches as under:-

A) R.N. Virmani batch of cases:

“17. This court is of opinion that the submissions of the

University, the appellant, in regard to the Virmani’s order, have

no force. There is no denial and there can be none- that the nature

of the scheme contemplated by the 01.05.1987 notification was to

ensure that only those wishing to continue in the CPF scheme had

to opt to do so. A default in that regard, meant that the employee

not filling his option (to continue in CPF) was deemed to have

“come over” or migrated to the Pension Scheme. The University

and the official respondents (UGC, Central Government etc) had

urged that the petitioners in the Virmani group are deemed to have

accepted the CPF benefits, because they allowed deductions from

their monthly salaries during the interregnum and permitting

Pension Scheme benefits would not be fair; in the same breath it

was urged that there was delay. This court is of opinion that the

University – and the respondents are relying on contradictory

pleas. If they urge that the true interpretation of the 1987 circular

meant that anyone not furnishing an option to continue in the CPF

scheme is deemed to have opted for the Pension Scheme (as the

Virmani group undoubtedly did) there is no way they can succeed

on the ground of laches or estoppel. If plain grammatical meaning

of the language of the May 1987 OM were to be given, all those

who do not opt would automatically be borne in the Pension

Scheme. Such being the position, the argument that the petitioners

in Virmani allowed deduction of CPF amounts from their salary,

cannot be argued against them. CPF schemes typically require

employees to commit greater amounts than in GPF scheme, on a

monthly basis. That these staff members allowed higher amounts,

which were held under a scheme (and which earned interest), the

benefit of which had not accrued and was not available to them

till the date of superannuation, cannot be urged against them.

Likewise, the question of laches would not arise, because at the

most, pension would not be allowed for the entire period, given

that in matters of pension (see Union of India & Ors. V. Tarsem

Singh (2008) 8 SCC 648) there is a continuing cause of action.

Therefore, we find no infirmity with the learned Single Judge’s

order, in Virmani’s case.”

The appeals were thus dismissed.

B) N.C. Bakshi batch of cases:

“20. This court is of the opinion that no infirmity can be found

with the approach or reasoning of the learned Single Judge, in

allowing the respondents’ petitions. The learned Single Judge

made a factual analysis, in this category of teaching staff. The

chart, prepared for the purpose, and extracted at Para 3.1 of the

judgment in this batch (N.C. Bakshi v Union of India WP

5310/2010) shows that all the employees opted for the CPF

benefits, after the cut-off date. It was because of this and the

expressed stand of the UGC- and the University that the learned

Single Judge concluded that notwithstanding the so called option,

exercised in terms of the extensions given, the writ petitioners

could not be denied the benefit of the Pension Scheme because

they were deemed, by the OM of 01.05.1987 to have opted for it,

by default. Having regard to these facts, the appellants could not

have urged that the benefit of the Pension Scheme should have

been denied to these class of petitioners/teaching staff. Therefore,

we are of opinion that there is no infirmity with the impugned

judgment of the learned Single Judge. The University’s appeals,

therefore, deserve to fail.”

The appeals in this batch of cases were thus dismissed.

C) Shashi Kiran batch of cases:-

i) The distinction between cases in this batch as against the other

batches was noted thus:-

“21. The last category is the Shashi Kiran batch. Here, the

University staff, who constituted the writ petitioners, had

consciously opted for the CPF benefits. Their grievance was that

of discriminatory exclusion. They had approached the court,

contending that when they sought for options, the respondents

refused to extend it, saying that the previous extensions had ended

and later, that the UGC and the Central Government had refused

to grant approval.

“23. The discrimination complained of by the appellants in Shashi

Kiran’s batch of cases is that even though the deadline of

30.09.1987 was not deemed sacrosanct by the University (and

through omission and, therefore, tacit approval, by UGC and the

Central Government) a large number of employees who had not

opted either way were allowed to switch-over to the Pension

Scheme through options given over 14 years, by 12 different

extensions. Given that the ground realities had undergone a sea

change, the CPF scheme was unfeasible and had lost viability; on

the other hand, the Pension Scheme was more beneficial. These

appellants argue that in such a situation, when 2469 staff

members opted for pension on various dates during these

extensions, when they wished to do so, the respondents unfairly

refused the benefit.

24. The learned Single Judge’s view has some logic in it because

the University refused the Pension Scheme benefits in case of

those who had chosen it: in Virmani’s case, by default (i.e. no

option, which meant deemed option) and in the other cases,

because of the option for CPF, given after the date prescribed.

While the logic for directing relief in the first category (Virmani)

is sound, the second category was given relief by ignoring that

they consciously wished to switch-over to the CPF scheme, but

after the cutoff date. Thus, the learned Single Judge ignored the

conscious choice made only on the ground that the choice or

option for CPF was after the cut-off date. Now, this has led to a

peculiar situation where those who opted for CPF benefits have

been divided into two categories: one, who opted before the cutoff date and two, those who opted after the cut-off date. The latter

have been given relief. That is also the basis for refusing relief to

the former, who are appellants in this batch.

25. As noticed earlier, 2469 staff members are enjoying the

benefit of the Pension Scheme, on account of the choice or option

made by them…….”

ii) It was thus observed:

“26. If these facts are taken together with the Central

Government’s conceded stand in permitting staff members and

employees in other institutions, including educational institutions

such as IIT Kanpur, the Department of Atomic Energy and

Council for Scientific and Industrial Research to opt in extended

dates for switch-over qua its employees, the rejection of UGC's

request that the conversion date be extended till 31.12.2003,

reveals the arbitrariness and non-application of mind by the

Central Government.

27. That the Central Government permitted change over as late

as till 31.12.2003, i.e before the sixth pay commission

recommendations (introducing CPF benefits to all those

employed later, universally with effect from 01.01.2004). This

aspect assumes critical importance, because the Central

Government (and UGC) admit that all those who opted after the

cutoff date (and many of them having opted for CPF earlier) have

been granted benefits under the Pension Scheme. The ground

realities with respect to the nature of benefits that accrue to CPF

optees in comparison with GPF/Pension optees paints a stark

picture. One should keep in mind that while opting for such

schemes, employees cannot gaze into the crystal ball, as it were,

and speculate whether the existing state of affairs would continue.

At the time when these options were sought and given, those

opting for CPF were reasonably certain that having regard to the

nature of contributions and the rate of interest, the end package

would compare favourably with Pension optees, with respect to

returns earned at the stage of superannuation. In other words,

when the options were given, these appellants were in

employment; neither they, nor for that matter the respondents

could have visualized a drastic fall in the interest rates, which

severely undermined the CPF option and shrunk the ultimate

lump sum CPF benefit available to these appellants. While

examining whether a statute once valid and upheld as such on the

ground of Article 14 ceases to be so due to later developments

and with passage of time, the Supreme Court has declared in a

number of judgments that the earlier declaration of validity or

basis of classification cannot be the basis to deny the arbitrariness

of the law, if it is proved to be so later (Refer to State of Madhya

Pradesh Vs. Bhopal Sugar Industries (1964) 6 S.C.R. 846;

Narottam Kishore Dev Varma and Ors. Vs. Union of India and

Anr. (1964) 7 S.C.R. 55 ; H.H. Shri Swamiji of Shri Admar Mutt

etc. vs. The Commissioner, Hindu Religious & Charitable

Endowments Department and Ors. (1980) 1 S.C.R. 368; Motor

General Traders and Anr. Etc. etc. vs. State of Andhra Pradesh

and Ors. etc. 1984 (1) S.C.R. 594.) In H.H. Shri Swamiji of Shri

Admar Mutt etc (supra) it was held that:

"there is a firm foundation laid in support of the

proposition that what was once a non-discriminatory

piece of legislation may in course of time become

discriminatory and be exposed to a successful

challenge on the ground that it violated Article 14 of

the Constitution."

28. In this case, clearly when the appellants opted for CPF

benefits, they did so without premonition of future developments.

The net result was that as between two individuals in the same

grade and post, carrying the same pay scale, one who opted for

the Pension Scheme was entitled to a substantial amount and

future adjustments in pension whenever Dearness Allowance

were to be enhanced. However, for the appellants, there was no

such advantage; they saw a shrinking package on account of later

developments – notably the drop in interest rates. Now, interest at

the rate or anyway, somewhere near the rates, which prevailed

when the scheme was introduced, was one of the significant basis

for the CPF scheme. With a drastic change in the rates, those

opting for CPF were at a grave disadvantage. To compound their

problems, the University’s interpretation of a fairly clear Office

Memorandum (dated 01.05.1987) injected much confusion. The

third factor is that even amongst University staffers, 12 extensions

were given and a large number of options for the Pension Scheme

were furnished – both in respect of those who opted for CPF

earlier and those who did not. Taking the totality of

circumstances, the University’s insistence to pin the appellants to

the options they originally exercised is discriminatory.

29. The other reason why this court is inclined to allow this appeal

is that neither the Central Government nor the UGC have

furnished a single reason for why option to switch-over to the

Pension Scheme was permitted up-to 31.12.2003 to several other

autonomous institutions and denied to the appellants. This

singular omission to say what compelled the Central Government

to deny the petitioners the benefit of switch-over, while

permitting those in other institutions, in the opinion of the court,

clearly amounts to discrimination. The mere fact that the

petitioners are working in the University whereas the other

employees work in other institutions is not sufficient, given that

the consistent stand is that options once given cannot be altered.

Therefore, it is held that denying the right to opt to the Pension

Scheme in the case of the Shashi Kiran batch is unsustainable; it

has resulted in arbitrariness.”

The appeals in this batch of cases were thus allowed.

8. The University accepted the decision in R.N. Virmani batch of cases

and as such no appeal has been preferred. It, however, is in appeal in the other

two batch of cases. At this stage, some of the documents which were not part

of the record before the High Court but were placed before us, must be

adverted to:-

a) On 08.08.2001, a communication was addressed by the UGC to the

Joint Secretary, MHRD. The relevant portion of the letter was:-

“…Many autonomous bodies including the universities have

adopted the basic policy of this circular but they have not

restricted to the cut off date and allowed their own cut off dates

to their employees for switchover from CP fund to GP fund.

Some of the Institutions have allowed this changeover till 1998.

However, some of the institutions under UGC who have shown

better discipline and also some of the employees of UGC itself

are representing now to allow their employees a chance to

switchover from CP fund to GP fund. In UGC, this number is 5

or 6 only.

Respective Ministries presumably have also not issued any

circular allowing this benefit to the employees of autonomous

bodies under their control. This has led to a situation where

different disparity among the employees in different autonomous

bodies as far as benefits under CP fund to GP fund is concerned.

For example, IIT, Kanpur allowed conversion until 30.7.98 and

kept this open for charge over for another fifteen years after

continuous service, in case they do not switch over by that date.

Copy of IIT, Kanpur letter dated Atomic Energy, Govt. of India

vide their letter 2/1/99/SCS/665 dated 12.10.2000 have also

extended another chance to opt for said switchover in case of

Technical employees of DAE. Similarly, CISR have allowed one

more option to all its employees to switchover. Their letter No.

17(197)/90-EII dated 25.1.99 is enclosed for reference.

On demand of employees of UGC and also the employees of the

Universities, the Commission considers it necessary to obtain

consent of your Ministry to allow one more cut off date to stop

this disparity in UGC and other autonomous institutions within

UGC umbrella specially in all those institutions where the

pension scheme already exists and only a few employees have

been left out for switchover from CP fund to GP fund. The cost

of extending the scheme in those left out cases will also be very

little so as to be called an additional burden on the exchequer.

Extension of the conversion scheme in institutions where pension

scheme is already existing is also necessary as Government have

extended the revised pay scales on the condition that these

institutions will maintain parity in all terms and conditions that

these institutions will maintain parity in terms and conditions of

service of its employees with the corresponding category of

employees in Govt. of India.

I would therefore request you to please consider this suggestion

and extend the schemes of conversion from CP fund to GP fund

scheme to all employees of autonomous bodies (or to employees

of UGC/Central & Deemed Universities) who already have

pension scheme since inception, and notify some clear cut off

future date, so that those institutions do not fix their own cut off

date/dates and create disparities and confusion.”

b) The stand of the MHRD is clear from one of the communications,

namely letter dated 24.10.2002 addressed by the MHRD to the UGC which

stated:-

“2. Since the University Grants Commission is the funding

agency and it itself had extended the Government policy on

conversion from CPF to GPF to the Central Universities and

Deemed Universities receiving 100% maintenance grant from the

UGC, no specific Government instructions are warranted to

decide the cases of those employees of the University of Delhi

who had been permitted irregular conversion from CPF to

GPF/Pension Scheme after the prescribed cut-off date.

3. You are, therefore, advised to decide the issue at your end

without referring it to this Ministry.”

c) Soon after the decision of the Division Bench of the High Court, a

communication was addressed by the University on 13.10.2016 to MHRD that

about 306 employees would be eligible to draw pension in terms of said

decision.

d) A letter dated 23.1.2017 was written by the Under Secretary to

Government of India, Ministry of Education, to the Registrar of the

University. Paragraph 2 of the letter stated as under:-

“2. The directions/observations in the matter are as under for

compliance: -

(i) To allow GPF/Pension of Government in respect of those

employees who were in service as on 01/01/1986, unless

they have specifically and in writing chosen the option to

stay with CPF. However, in respect of the employees who

have already retired, the question of surrender of the

University’s portion of the CPF as already taken by them,

will have to be dealt with by the University of Delhi on

consultation with the UGC/MHRD. Delhi

University/Concerned Colleges will ensure to recoup their

contributions under the CPF Scheme with simple interest

of 8% per annum. Thus while seeking option from the

employees this point will have to be appropriately taken

care by the MHRD/UGC/DU and Concerned Colleges.

(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 the UGC/MHRD.

(iii) In case any other employee who was not in service as on

01.01.1986 and joined thereafter, the question of

application of order of Department of pension dated

01.05.1987 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.”

e) On 29.03.2019 a letter was written by MHRD to the Secretary, UGC.

The relevant portion of the letter was:-

“2. The matter of non-settlement of pension issue of such

employees of University of Delhi and its Colleges who retired

after the order was passed by the Single Bench of Delhi High

Court on 30.4.2014 on the grounds that UGC counsel had

mentioned in the court that the expenditure on pension was

unapproved whereas those who retired prior to 30.4.2014 were

allowed pension by the University.

3. The matter has since been examined in consultation with

D/o Expenditure and it has been decided that if in this case

pension was allowed to a group of employees by DU, out of

which some have already been allowed pension on having retired

after recovering their CPF accumulation approximate to the

employer’s contribution, then the employees in this case may be

allowed pension, if they belong to the same group which was

allowed switch over from CPF to GPF by DU and where a few

employees have already been availing themselves of pension and

if employer’s contribution to CPF has been recovered in their

case, provided they are not related in any way whatsoever to the

case decided by the Delhi High Court on 24.8.2016.”

f) Soon thereafter a communication was addressed by the UGC to the

University, the subject being: -

“Release of pension benefits in respect of employees – who have

opted pension scheme from 1989 to 1998 and have retired after

the judgment of High Court of Delhi – Regarding.”

The relevant portion of the letter was :-

“I am directed to inform you that the MHRD vide its letter no. 4-

41/2014-Desk (U) dated 29th March, 2019 (copy enclosed) has

informed that the matter has since been examined in consultation

with D/o Expenditure and it has been decided that if in this case

pension was allowed to a group of employees by DU, out of

which some have already been allowed pension of having retired

after recovering their CPF accumulation approximate to the

employer’s contribution, then the employees in this case may be

allowed pension, if they belong to the same group which was

allowed switch over from CPF to GPF by DU and where a few

employees have already been availing themselves of pension and

if employer’s contribution to CPF has been recovered in their

case, provided they are not related in any way whatsoever to the

case decided by the Delhi High Court on 24.8.2016.”

g) On 02.03.2019, a communication was addressed by the Under

Secretary to Government of India, Ministry of Finance, Department of

Financial Services to the Chairpersons of Life Insurance Corporation of India

and other Insurance Corporations in public sector. The subject of the letter

was:-

“Final option for pension to leftover employees of Public Sector

Insurance Companies (PSICs) namely Life Insurance

Corporation of India, General Insurance Corporation of India,

Oriental Insurance Company Limited, United India Insurance

Company Limited, National Insurance Company Limited and

New India Assurance Company Limited: Reg.”

The communication stated:-

“The issue of grant of final option for pension to leftover

employees of Public Sector Insurance Companies (PSICs) was

under examination with the Central Government. It has now been

decided to allow a final option to those who joined service on or

before 28.06.1995 to opt for pension as a retirement benefit.

2. PSICs are requested to submit to this Department a detailed

scheme for approval and notification incorporating, inter alia, the

following parameters:

(i) In the case of serving employees who opt for pension,

employer’s contribution along with the interest to be

transferred to the pension fund. In addition, they would

also contribute a certain multiple of pay as was done in

the case of public sector banks;

(ii) For retired employees/families of deceased employees a

certain multiple of employer’s contribution to Provident

Fund and interest thereon received by the employee on

retirement to be refunded, as was done in the case of

public sector banks.

(iii) Pension/Family Pension to those who now opt to join the

pension scheme, will be payable with effect from the date

notification of the scheme. However, the employees

retiring after that date will be eligible for pension with

reference to their respective date of retirement.”

9. After hearing learned counsel for the parties who inter alia invited

attention of this Court to the documents adverted hereinabove, this Court

passed the order dated 02.03.2020, which stated:-

“Though their submissions are concluded, certain doubts have

arisen after the learned counsel invited our attention to various

documents on record.

Some of those documents are (i) letter dated 8.8.2001 from

University Grants Commission (for short “UGC”) to the Joint

Secretary, Government of India, Ministry of Human Resource

Development (for short “MHRD”,) placed on record at pages 46-

47 of the Convenience Volume, (ii) the response dated

24.10.2002 appended at page 48 of the Convenience Volume,

from the MHRD to the aforesaid letter dated 8.8.2001; (iii) the

letter dated 13.10.2016 written by Delhi University to the

Secretary, Department of Higher Education, MHRD appended at

page 58 of the Convenience Volume) and (iv) the letter dated

2.3.2019 from the Government of India (Ministry of Finance), at

page 63 of the Convenience Volume, in so far as certain

institutions like LIC and other Insurance Companies are

concerned.

One of the basic issues that arises in the matter is whether in terms

of Para 3.1 of O.M. dated 1.5.1987 was it competent for the

concerned institutions/authorities to keep on extending the period

within which options could be exercised by the concerned

employees.

It is in this light that the Division Bench of the High Court in

paragraphs 26 and 27 referred to certain facts including the stand

of the Central Government constituted in permitting several

members and employees in other institutions including

educational institutions such as IIT, Kanpur to give option by

extending dates for switch over till 31.12.2003.

All these communications do not spell out any consistent stand

on the Central Government. Though the Central Government and

the UGC are parties to the present list, no stand has been taken on

record by filing any appropriate affidavit.

In the circumstances, we call upon Central Government (Ministry

of HRD) as well as the UGC to file affidavits within seven days

from today and place their stand on record giving complete

details.

Delhi University is also called upon to place on record following

information by way of an affidavit:

(a) How many employees who were employed before 01.01.1986,

had opted to be covered under CPF Scheme by 30.09.1987.

(b) How many employees exercised the option to be part of CPF

Scheme after 30.09.1987 but within first two extensions allowed

by Delhi University.

exercised the reverse option granted to them and opted to be under

GPF.

(d) How many writ petitioners wanted similar benefit and

extension of some facilities as was granted to the employees

referred to in Para (c) above.

(e) How many employees are presently in service who answer

description that they are employees from before 1.1.1986 and are

still part of CPF Scheme.

Copies of the communications referred to in the earlier part of the

order shall also be supplied alongwith a copy of this order to the

Central Government and the UGC.”

9.1 In response to the questions posed in the Order dated 02.03.2020,

following information was supplied through the affidavit filed on behalf of

the University.

“3. That in pursuance of the aforementioned directions, the

petitioner is providing the following itemized response.

(a) How many employees who were employed before 01.01.1986,

had opted to be covered under CPF Scheme by 30.09.1987.

RESPONSE:

Approximately 2611, who were employed before 01.01.1986,

had opted for CPF Scheme by 30.09.1987

(b) How many employees exercised the option to be part of CPF

Scheme after 30.09.1987 but within first two extensions

allowed by Delhi University.

RESPONSE:

That approximately 626 employees exercised the option to be

part of CPF Scheme after 30.09.1987 but within the initial two

extensions allowed by the Delhi University.

exercised the reverse option granted to them and opted to be

under GPF.

RESPONSE:

That approximately 2469 employees who had opted to remain

in CPF exercised the reverse option granted to them and opted

to come over to GPF.

(d) How many writ petitioners wanted similar benefit and

extension of same facilities as was granted to the employees

referred to in Para (c) above.

RESPONSE:

Under category-1 i.e. N.C. Bakshi batch, 172 employees

wanted similar benefit of extension as was granted to the

employees referred to in Para-c above whereas the number of

such employees falling under category-2 i.e. Shashi Kiran

batch is 75.

(e) How many employees are presently in service who answer the

description that they are employees from before 1.1.1986 and

are still part of CPF Scheme.

RESPONSE:

51 respondents belonging to category-1 i.e. N.C. Bakshi

Batch and 86 respondents under category-2 i.e. Shashi Kiran

batch were appointed before 01.01.1986 are presently in

service and they are still part of CPF Scheme.”

9.2 In the affidavit filed on behalf of Union of India, Ministry of Education,

answer to question no.4 was given as under:-

“The Department of Pension and Pensioners’ welfare O.M.

dated 01.05.1987 provides that all CPF beneficiaries, who

were in service on 1.1.1986 and who are still in service on

the date of issue of these orders will be deemed to have

come over to the Pension Scheme. These orders apply to

all Civilian Central Government employees who are

subscribing to the Contributory Provident Fund under the

Contributory Provident Fund Rules (India), 1962. Further,

D/o Financial Services vide O.M. dated 02.03.2019 has

allowed the employees of Public Sector Insurance

Companies for a final option to those who joined service on

or before 28.06.1995, to opt for pension as a retirement

benefit. This O.M. is not applicable to Central Government

as well as autonomous bodies employees.”

It was further stated:-

“4. At the very outset, it is informed that in case this

Hon’ble Court decides the appeal against the University of

Delhi and the Union of India, the financial implications of

the same would have a snowball effect, as the same would

become applicable to all the Central Universities

throughout India, which would open a flood-gate of

litigation.”

10. The matter was thereafter extensively argued on behalf of the

University. It was submitted:-

a) The difference 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 others5

, 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: -

(1990) 4 SCC 207

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. Verma4

, 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 cutoff 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. Verma’s4

case. Thus, both these batches of cases were rightly decided

by the learned Single Judge and the Division Bench. We, therefore, dismiss

the appeal in N.C. Bakshi batch of cases.

16. We now turn to Shashi Kiran batch of cases.

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 Kumar5

, 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 Board’s 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 Board’s

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 employee’s 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 India6

. Paragraphs 16, 29 and 30 of the decision

in Krishena Kumar5 dealt with the issue as under:-

“16. As the basis or justification for striking or reading down paragraph

3.1 on Nakara6

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 government’s 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 cas6

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 Nakara6 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)

(1983) 1 SCC 305

“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. P1, 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 noneffective 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 Nakara6

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 government’s 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 government’s 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

government’s 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 Nakara6

that the State’s 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. Nakara6

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.

19. At this stage we must also consider that in Rajasthan Rajya Vidyut

Vitran Nigam Limited vs. Dwarka Prasad Koolwal and others7

, a Bench of

two Judges of this Court found that an employee had no inherent right to

demand extension for exercising the switchover option. It was observed:-

“58. When the Pension Regulations and the GPF Scheme are read

together, the necessary conclusion is that an employee must give his

option for either continuing to be a member of the CPF Scheme or to

switch over to the Pension and GPF Scheme. This option had to be

exercised within a period of 90 days from the cut-off date, that is, 28-

11-1988. But RSEB, in its wisdom, chose to extend the time for

exercising the switch-over option over a period of 8 years by giving

several opportunities to the employees through its notices. The right of

an employee to switch over was, therefore, limited in time by the

Pension and GPF Scheme. However, administrative orders issued by

RSEB from time to time extended the period for exercising the option.

No employee had any inherent right to either demand an extension of

the period for exercising the switch-over option or claim a right to

exercise the switch-over option at any time prior to his retirement, and

no such right has been shown to us.”

20. Krishena Kumar5 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.

(2015) 12 SCC 51

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 Kumar5 or Rajasthan

Rajya Vidyut Vitran8

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.

25. 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 Kiran

batch of cases may not be interested in switchover to GPF. But an option must

be afforded to them in such manner as the authorities deem appropriate.

26. All these appeals are therefore disposed of in aforestated terms, with no

order as to costs.

…………………………………J.

[Uday Umesh Lalit]

…………………………………J.

[Vineet Saran]

New Delhi;

May 10, 2022.

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UNIVERSITY OF DELHI VS SMT. SHASHI KIRAN & ORS. ETC

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