In the High Court of Judicature at Madras
Dated :: 14..03..2011
Coram ::
The Hon'ble Mr. Justice V. Dhanapalan
Writ Petition No: 6603 of 2008
Dr. L.S. Viswanath
No: 54, 10th "A" Main Road
5th Block, Jayanagar
Bangalore 560 041. ... Petitioner
-vs-
1. The Vice Chancellor
University of Pondicherry
Pondicherry 605 014.
2. The Registrar
University of Pondicherry
Pondicherry 605 014.
3. The Executive Council
University of Pondicherry
Pondicherry 605 014. .. Respondents
.. .. ..
Writ petition under Article 226 of the Constitution of India praying for issuance of a writ of mandamus directing the respondents to grant Central Pension to the petitioner as applicable to the similarly placed employees of the respondents' university.
For petitioner :: Mr.R. Murugesan
for Mr.M.V.Venkataseshan
For respondents :: Mrs. A.V. Bharathi
.. .. ..
O R D E R
Heard Mr. R. Murugesan for Mr. M.V. Venkataseshan, learned counsel appearing for the petitioner and Mrs.A.V. Bharathi, learned counsel appearing for the respondents 1 to 3.
2. This is a writ petition, which a retired Professor Head of the Department of University of Pondicherry, has filed for a direction to direct the respondents to grant Central Pension to the petitioner as applicable to the similarly placed employees of the respondents’ university.
3. According to the petitioner he is a Post Graduate in M.A. History. He has also completed M.Lit. and Ph.D from University of Delhi and as such he is qualified person eligible for appointment in the Department of History in all the Universities. On 24.11.1983 petitioner was appointed as a “Deputy Director” in the National Institute of Rural Development, hereinafter referred to as NIRD, at Hyderabad. He resigned from the said post on 05.01.1988. He got himself appointed as “Reader” in the respondent University on 07.01.1988, as seen from the proceedings of the 2nd respondent dated 10.03.1988. While he was working in NIRD he had opted for “Central Provident Fund Scheme”, hereinafter referred to as the CPF Scheme, for the purpose of monetary benefit at the time of retirement. The C.P.F. Scheme opted by the petitioner while he was working in NIRD was transferred to the respondent University vide N.I.R.D’s letter dated 16.04.1991. Later petitioner was promoted as Professor in the Department of History on 29.01.2001 and was finally superannuated as Professor and Head of the Department of the History Department of the respondent University on 31.08.2005. While so, the petitioner realised that the General Provident Fund cum Pension Scheme, hereinafter referred to as the G.P.F. Scheme, would be more beneficial than C.P.F. Scheme and hence, on 09.03.1988 itself he sent a representation to the 1st respondent requesting for permission to change the pension scheme from C.P.F. Scheme to G.P.F. Scheme. There was no response from the 1st respondent. Petitioner also made further representations on 06.05.1998 and 29.05.2001. But there was no response from the 1st respondent. According to the petitioner such inaction on the part of the respondents is wholly arbitrary and unsustainable in law. According to the petitioner, while the 1st respondent is the competent authority for ordering the change over of the scheme, the 3rd respondent who is subordinate to the 1st respondent is incompetent to issue a circular dated 15.06.2003. It is also submitted that such circular issued by the 3rd respondent is the copy of the circular issued by University Grant Commission marked to the Finance Department of the Central Government which is not binding on the petitioner.
4. Petitioner’s contention is that under the C.P.F. Scheme, both the employee and employer’s contribution is disbursed a s one time payment on the eve of retirement. The petitioner’s pay scale was Rs/ 3,750/- when he joined in N.I.R.D. and his basic in the respondent University is Rs.3,950/- and at the time of retirement, his basic pay was Rs.19,550/-. This was due to increase during the implementation of the Vth Pay Commission. It was the submission of the learned counsel for the petitioner that whenever petitioner’s pay scale was raised, he requested the respondent to permit him to change over from C.P.F. Scheme to G.P.F. Scheme. One such representation was submitted on 30.11.2003. In fact, petitioner has also represented the matter to the Chairman of the 6th Pay Commission. But there was no response. In addition to such Provident Fund Scheme all institutions are also having Pension Schemes as per the relevant Pension Rules. So petitioner’s option to CPF Scheme would not be a bar for him to get G.P.F. Scheme after his retirement. So, the denial of pension to the petitioner by the respondent on the ground of the petitioner has enjoyed the CPF Scheme is a clear case of malafide and non-exercise of power.
5. It is his case that non granting of pension to the petitioner under the C.P.F. Scheme which is applicable to the respondent Institution is clear case of violation of Article 14 of the Constitution of India and is also in violation of the principles of natural justice. Petitioner claims that pension is not a bounty paid by the employer to the employee but a right of the employee for the services rendered by the employees to the organisation. In his earlier representations claiming that he is eligible for drawl of pension as applicable to other similarly placed employees but inspite of that the respondents have not granted him the pension even after his retirement on 31.08.2005. All the employees who retire from the respondent University on superannuation are automatically sanctioned pension. Petitioner has put in 17 years and 8 months of unblemished service in the respondent University. Therefore, the respondents ought to have accepted the prayer of the petitioner for grant of pension and should have granted pension to him as paid to similarly placed employees, which is his basic right and denial of such right is in violation of Article 21 of the Constitution.
6. The 2nd respondent Registrar of the University of Pondicherry has filed counter. It is stated that Pondicherry University is a Central University, established by the Pondicherry University Act, 1985, hereinafter referred to as the University Act. According to the respondents, the University falls within the definition of “University” under Section 2 (f) of the University Grants Commission (UG.C.) aCT, 1956 and as such, comes within the purview of the U.G.C. That apart, respondent University is also governed by the Ministry of Human Resource Development, Government of India. The President of India is the visitor of the University. The Vice-Chancellor is appointed by the Visitor. The Executive Council is the principal executive body of the University. As per the Act, the University has perpetual succession and a common seal and shall sue and be sued by the name of “Pondicherry University”. According to Statute 4 (6) (g) framed under the Act, the Registrar is the designated authority to represent the University in suits or proceedings by or against the University. Hence, the writ petition, as framed against the Vice Chancellor is contrary to the stated statutory provisions, and the Vice-Chancellor is not a relevant or necessary party for suing the University which shall be sued only in the name of the Pondicherry University represented by its Registrars.
7. In the counter affidavit of the respondents it is further stated that UGC / MHRD are necessary parties to the writ petition as the respondent University is bound by instructions and guidelines of UGC / MHRD in CPF / GPF matters. It is also stated that the the petitioner Dr.L.S.Viswanath was appointed as Reader in the Department of History in the respondent University on 07.01.1988 forenoon. His pay was fixed at Rs. 3,950/- in the scale of Pay of Rs. 3700-125-4200-150-8700 with effect from 07.01.1988. The petitioner had worked as Deputy Director, Faculty of Sociology at National Institute of Rural Development (NIRD), Hyderabad, and was relieved on 05.01.1988. The petitioner had informed the respondent University vide letter dated 07.11.1990 that before joining the respondent University, he had contributed to Contributory Provident Fund (C.P.F.) at the previous place of employment (NIRD) and requested the respondent University to write to NIRD for transfer of his CPF amount to the respondent University including his contribution and the Institute’s contribution with interest to his CPF account No: CPF/006T at Pondicherry University. The respondent University, by letter dated 07.12.1990 requested the Director General, NIRD, Hyderabad to transfer his CPF balance to the University and NIRD has accordingly transferred the petitioner’s CPF amount to the Pondicherry University. The gratuity amount was not transferred from NIRD, Hyderabad.
8. Further, according to the respondents there are two terminal benefits schemes, viz. The General Provident Fund-cum-Pension-cum-Gratuity Scheme and the Contributory Provident Fund-CUM- Gratuity Scheme in the Pondicherry University. The petitioner had been admitted to the CPF-cum-gratuity scheme of the respondent University. While so, the petitioner, by letter dated 27.01.1992, has also opted for being placed in the CPF-cum-gratuity scheme in which he was already placed. The petitioner was therefore informed vide letter dated 28.03.1992 that he was already placed in the aforesaid CPF-cum-gratuity scheme of the respondent University and hence the question of again placing him under the CPF-cum-gratuity scheme of the respondent University does not arise and that option once exercised for admission to CPF-cum-gratuity scheme is final. The petitioner was further informed that he must furnish an undertaking to the effect that he would not claim gratuity at the time of retirement for the period of his service at NIRD, Hyderabad as NIRD had not implemented the gratuity scheme. However, it was clarified that if, at a later date, NIRD introduces the CPF-cum-gratuity scheme in their Institute and makes payment of gratuity with respect to the petitioner for the period of his service at NIRD, the University would reconsider the matter regarding the payment of gratuity to the petitioner for his service at NIRD, prior to his joining in the service of the Pondicherry University.
9. It is the stand of the respondents that the petitioner, for the first time, made a representation to the University requesting a change over from the CPF-cum-Gratuity Scheme to the GPF-cum-Pension Scheme though he was categorically informed on 28.03.1992 itself that he was placed in the CPF-cum-Gratuity Scheme from the date of his joining the University and that the same is final. The petitioner later retired on 31.08.2005 after having worked for 17 years, 7 months and 25 days in the University. The petitioner was duly paid his CPF benefits. It is also submitted by the respondents that in letter No: F.6-2/97 (CU) dated 15.6.2000 U.G.C. informed the University that on the question of one more option of change-over from CPF to GPF for the staff of Central Universities and institutions maintained by the UGC, the Ministry of Humar Resource Development ( MHRD ) had informed UGC in letter No: 4-49/99-U-I dated 19.6.2000 that after examining the matter in consultation with the Ministry of Finance (Department of Expenditure) it regrets inability to allow one more option to change over from CPF Scheme to GPF Scheme to the employees of the UGC and the institutions maintained by it. The respondent University is governed by the U.G.C. and M.H.R.D. and is also bound by the guidelines, recommendations and other orders of the Central Government. As the MHRD and UGC have deliberated upon the issue and expressed their inability to allow the employees of the UGC and the institutions coming under its purview to change over from CPF Scheme to GPF Scheme, the respondent University is unable to accede to the request of the petitioner for a change over from CPF Scheme to GPF Scheme. In respect of the representations made by the petitioner requesting for change over to GPF Scheme, the respondent University had duly informed vide communication dated 28.03.1992 that such change over is not possible Therefore, the contention that there was no response by the respondent does not arise. It is also submitted by the respondents that both the University as well as the petitioner are clearly bound by the UGC letter dated 15.06.2000 based on the relevant MHRD letter. Since the action of the University in not allowing the petitioner to change over from CPF Scheme to GPF Scheme is based on the said UGC letter and the MFRD letter, the question of malafide or non-exercise of power as alleged does not arise. It is clearly stated by the respondents that bald and unsubstantiated allegations of malafides are not sustainable and that malafide must be specifically pleaded and proved. The petitioner’s allegation of violation of Article 14 and 21 of the Constitution of India are also denied as the action of the respondent University is reasonable and cannot, by any stretch of imagination, be construed as arbitrary and unreasonable and, therefore, the respondents prayed for dismissal of the writ petition.
10. The foremost contention of the learned counsel for the petitioner is that as per the Resolution of the 42nd Meeting of the Executive Council which met on 20.05.1994 both the CPF and GPF rules confer powers on the Executive Council to relax the provisions of the rules in individual cases where the Executive Council to relax the provisions of the rules in individual cases where the Executive Council is satisfied that the operation of any of these causes or is likely to cause undue hardship to a subscriber, Therefore, invoking the powers conferred on the Executive Council as contained in Rule 25 of the First Statute of the GPF cum CPF cum Pension Scheme, the Executive Council may kindly approve the proposal. This resolution has been given effect to one person by name Prof.P.P.Mathur of the School of Life Sciences by permitting him to change over from the GPF Scheme to the CPF Scheme. As petitioner’s case, which is also similar to that of Prof. Mathur, is not considered by the respondents, the mandamus sought for by the petitioner has to be granted.
11.Refuting the above contention of the learned counsel for the petitioner Mrs. A.V. Bharathi learned counsel appearing for the respondent University would consistently point out that it is initially pleaded by the petitioner in the affidavit that he should be given similar treatment as in the case of Prof. Mathur. She would submit that the petitioner’s case has been taken up by the Pondicherry University to University Grants Commission and in turn University Grants Commission has approached the Ministry of Human Resources to consider petitioner’s case. But the Ministry of Human Resource Development had taken a decision not to extend such a change over of the Scheme in view of the specific rules of the Pension Scheme and therefore there is no violation of any Rules of the Pension Schemes. She has relied on a Circular dated 29.08.1984 of the Government of India, Department of Personnel & A.R., O.M. No: 28-10/84-Pension Unit. Paragraph 3 (ii) of the said O.M. clearly provides that provides that once option is made and that option exercised by the petitioner shall be final and there cannot be a further option to be entertained by the respondent.
12.
12. I have heard the learned counsel on either side and perused the material documents and relevant rules. I have also gone through the First Statute Governing General Provident Fund -cum- Pension -cum- Gratuity and Contributory Provident Fund-cum-Gratuity Scheme which is framed under Section 34 of The Pondicherry University Act (Act No: 53 of 1985). Appendix A states about the extent of application of the said Statute. Sub clause (d) of Clause 2 states that these Rules shall not apply to persons who earlier subscribed tot he CPF in their previous employment and who specifically opted to continue under the CPF Scheme within three months from the date of joining the service in that University namely Pondicherry University.
13. It is not in dispute that the petitioner was appointed as “Reader” in the Department of History in the respondent University on 07.01.1988 and his pay fixed at Rs. 3,950/-. Prior to that he was an employee of the National Institute of Rural Development N.I.R.D. where he worked as Deputy Director, Faculty of Sociology. He got himself relieved from that post and got himself appointed to the respondent University vide proceedings dated 10.02.1988. It is also not in dispute that the petitioner opted for Central Provident Fund Scheme C.P.F. Scheme for the purpose of monetary benefits at the time of retirement while in previous employment namely N.I.R.D. By letter dated 07.11.1990 petitioner had informed the respondent University that before joining the respondent University he had contributed to C.P.F. and requested the respondent University to write to NIRD for transfer of his CPF amount to the respondent University including his contribution and the Institute’s contribution with interest to his CPF Account No: CPF/006/T at Pondicherry University. The said exercise had been done with the correspondence of the previous employer vide letter dated 07.12.1990 and the petitioner was continuing with the CPF Scheme while employed in the respondent University as well. However, on 09.03.1988 petitioner requested the respondent University to change the pension scheme from CPF Scheme to GPF Scheme. The petitioner was informed through a communication dated 28.03.1992 itself that he was placed in the Central Provident Fund cum Gratuity Scheme from the date of his joining in the respondent University and the same has become final. The only
14. The only grievance of the petitioner in this writ petition is that the option exercised by the petitioner to change from C.P.F. Scheme to G.P.F. Scheme based on similar treatment meted out to one Mr.P.P.Mathur has not been considered favoured by the respondents. According to the respondents in the case of P.P.Mathur, the resolution of the Executive Council has been implemented and the benefit has been given to the said person by permitting him to change over the Pension Scheme but the same cannot be extended to this petitioner as well. Petitioner pleaded before this Court that a direction may be issued to the respondents to permit the petitioner to change over from one Scheme to another as granted to the similarly placed person. To support the case of the petitioner, it is initially stated in the pleadings of the petitioner that the case of Mr.P.P.Mathur was considered favourably and he should also be given similar treatment. In their counter the respondents have denied the claim of the petitioner by stating that the averments of the petitioner were not substantiated in the pleadings and that malafide must be specifically pleaded and proved. The claim of the petitioner is based on the decision of the Executive Council of the Pondicherry University at its 42nd Meeting, by invoking the powers conferred on the Executive Council as contained in Rule 25 of the First Statute of the GPF cum CPF cum Pension Scheme, to relax the provisions of the rules and give special concession to some cases for change over of the Scheme from the CPF to GPF Scheme. Even the petitioner’s case has been carefully persuaded by the respondent University by taking the matter to the controlling authority namely the University Grants Commission by its letter dated 15.06.2000. The decision taken by the University has been communicated to the petitioner vide the proceedings in PU/Estt/ET-2/ET-2/93/’90/853 dated 28.03.1992 and the said communication has been enclosed in the typed set of papers as well. The extract of the communication reads thus,
” With reference to your letter second cited under reference on the above mentioned subject, addressed to the Finance Office, I am directed to say that since you are already admitted to the CPF-cum-Gratuity Scheme in this University with effect from the date of your joining in this University, the question of putting you again under CPF-cum-Gratuity Scheme does not arise. Option once exercised for admission to CPF-cum-Gratuity Scheme is final and your contributions are credited in the Account No: CPF/006/T.
2. Referring to our letter first cited, I am to once again request you to furnish us an undertaking to the effect that you will not claim gratuity for the period of your service at NIRD, Hyderabad, at the time of retirement in this University being well aware of the fact that NIRD has not implemented the gratuity scheme. However, we will reconsider the matter relating to payment of gratuity for the earlier part of your service prior to joining in this University if the NIRD introduces the CPF-cum-Gratuity Scheme in their Institute at a later date and make payment of lumpsum gratuity for that period to this University.”
15. Even though such a decision has been taken by the respondent/ University and it was informed to the petitioner by the aforesaid letter, the University proceeded to forward petitioner’s request to the University Grants Commission seeking permission for change over of the scheme. The U.G.C., by its letter No: F.6-2/97 (CU ) dated 15.06.2000 has informed the University as under :
” The University Grants Commission on the request of some Central Universities sent a letter to Ministry of Human Resource Development for having one more option of change over from CPF to GPF to staff of Central Universities and institutions maintained by University Grants Commission.
The Ministry of Human Resource Development examined this matter to consultation with Ministry of Finance (Department of Expenditure) and has regretted its inability to allow one more option to change over from CPF to GPF vide its letter No: 4-49/99-U.I dated 12th June, 2000. I am enclosing a copy of the letter for your compliance. ”
16. In the above circumstances, whether the claim of the petitioner for change over of scheme from C.P.F. to G.P.F. can be considered or not under the provisions of the Rules and Schemes framed under the Pondicherry University Act has to be examined. Appendix II of the Central Civil Service (Pension) Rules ( C.C.S. Rules) vide O.M. No: 28-10-84-Pension Unit, dated the 29th August, 1984 of the Government of India, Department of Personnel and A.R. provides about the transfer of Central Government servants to Central Autonomous Bodies and vice versa and of employees of Central Autonomous Body to another Central Autonomous Body. It states that as per the existing orders, service rendered outside Central Government does not count for pension in Central Government except in the case of scientific employees of Autonomous Bodies financed or controlled by the Government who on permanent absorption under the Central Government are allowed to count their previous service for pension subject to certain conditions. In respect of personnel other than scientific employees, who are permanent in Central Government, in the event of their subsequent permanent absorption in Public Sector Undertakings or any Autonomous Body, proportionate retirement benefits for the service rendered in Government till the date of permanent absorption are allowed as per rules in force. In the scheme framed by the respondent University, the General Provident Fund -cum- Pension -cum- Gratuity Scheme and the extent of application of this Scheme has been specifically provided by stating that,
“Save as otherwise provided in these Rules, they shall apply to all regular employees whether temporary or permanent appointed to the services and posts in connection with the affairs of the Pondicherry University including re-employed pensioners but shall not apply to … …
(d) Persons who earlier subscribed to the CPF in their previous employment and who specifically opted to continue under the CPF Scheme within three months from the date of joining the service in this University.”
17. From the reading of the above rules and the scheme framed for the purpose of the C.P.F. as well as the G.P.F. and the letters issued by the University Grants Commission as well as the Ministry of Human Resources Development makes it clear that the persons who had opted for a particular scheme namely C.P.F. Scheme, on their transfer to autonomous body, should have opted for a particular scheme within the time frame prescribed and then that becomes final. Once the option is given, they have no further option to change over to the scheme. In this case, the petitioner has joined the respondent University on 07.01.1988 and he had continued to opt for the C.P.F. Scheme as he has subscribed earlier in his previous employment with N.I.R.D. for the same scheme. On petitioner’s request, the respondent University has written to the Director General of N.I.R.D., to transfer petitioner’s C.P.F. balance to the respondent University. Petitioner had continued with the C.P.F. Scheme with the respondent University for 10 long years. After lapse of 10 years of service, on 09.03.1998 he wanted to have a changer over from C.P.F. Scheme to G.P.F. Scheme which is not permissible under the Rules. The Rules, as contemplated above, would clearly indicate that a Central Government Employee with Contributory Provident Fund Benefits, on permanent absorption in an autonomous body will have the option either to receive C.P.F. benefits which have accrued to him from the Government and start his service afresh in that Body or choose to count service rendered in Government as qualifying service for pension in the Autonomous body by forgoing Government’s share of CPF contributions with interest, which will be paid to the concerned Autonomous Body by the concerned Government Department. The option shall be exercised within one year from the date of absorption. In no option is exercised within stipulated period, employee shall be deemed to have opted to receive CPF benefits. The option once exercised shall be final. As per the University Scheme within three months from the date of joining the services of the University the option has to be exercised. As per the Central Civil Services (Pension) Rules, such option should be exercised within one year from the date of absorption.
18. The petitioner, having opted for C.P.F. Scheme with his employer namely N.I.R.D., wanted to continue with the same scheme even after he joined in the services of the respondent University. Therefore, in the light of the C.C.S. Rules and Provisions of the Pondicherry University Act, it is clear that the petitioner should have exercised his option to change over from one scheme to another either within one year or within a period of three months from the date of joining the services of the respondent University or within a period of one year as the case may be. Having not done that, now it is not proper for the petitioner to compel the respondents to do certain things by saying that for some other employee you have done that especially when certain benefits were granted to one employee as a special case, after taking a decision in the Executive Council Meeting. Thus, while looking into the averments placed by the respondent University as well as the University Grants Commission, would clearly indicate that the claim of the petitioner had been duly considered by the competent authorities at all levels and then it was rejected.
19. For the foregoing reasons and discussions and on a through scrutiny of the Rules of the respondent University and both the C.P.F. as well as the G.P.F. Schemes, I am of the considered opinion that the decision taken by the respondent University rejecting the claim of the petitioner to change over from one scheme to another cannot be faulted with and therefore, the writ petition deserves no merit consideration and stands dismissed. Connected miscellaneous petition is closed. There shall be no orders as to the costs.
gp
To
1. The Vice Chancellor
University of Pondicherry
Pondicherry 605 014.
2. The Registrar
University of Pondicherry
Pondicherry 605 014.
3. The Executive Council
University of Pondicherry
Pondicherry 605 014