MRS. BELA AGARWAL, WIFE OF SHRI A.K. AGARWAL V. THE COMMISSIONER, KENDRIYA VIDYALAYA SANGTHAN

CW/16687/2022

AI Insights

The case involves a series of writ petitions filed by the Kendriya Vidhyalaya Sangathan (KVS) against various respondents who were former employees. The core issue was the respondents' eligibility to switch from the CPF Scheme to the GPF-cum-Pension Scheme after initially opting for the CPF Scheme. The Central Administrative Tribunal had ruled in favor of the respondents, allowing the switch, which KVS contested in the High Court. The High Court, referencing the Supreme Court's decision in Shashi Kiran, upheld the Tribunal's decision, emphasizing the employees' right to choose a more beneficial scheme.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 727782 (HC-RAJASTHAN)
• Appeal Type: Others
• Pronouncement Date: 27-07-2023
• Assessment Year: misc
• Other Referred Cases: K.V.S and Ors. vs. Jaspal Kaur and Ors., University of Delhi vs. Shashi Kiran & Ors., Union of India vs. Priyabrat Singh
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: AMIT MATHUR; KRISHAN KUMAR SHARMA; BRAHM PRAKASH
• Assessee Lawyers: KRISHNA VERMA; PRAVEEN SHARMA; SAKET GUPTA
• Keywords: Civil Writ Petition; Pension Scheme; Kendriya Vidhyalaya Sangathan; CPF Scheme; Tribunal Judgment

Judgement Text

"HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No. 16677/2022 1. The Joint Commissioner, Kendriya Vidhyalaya Sangathan, 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi-110016. 2. The Assistant Commissioner, Kendriya Vidhyalaya Sangathan, Regional Office, Bajaj Nagar, Jaipur-302015. ----Petitioners Versus Miss Vijay Laxmi Sharma D/o Late Shri G.d. Sharma, Aged About 62 Years, R/o 2/3, Taliyan Chopade, Near Bicharli School, Micharli Mohalla, Beawar-305202 (Rajasthan), Retired From The Post Of Primary Teacher In Kendriya Vidyalaya, Beawar, Ajmer (Rajasthan). ----Respondent Connected With D.B. Civil Writ Petition No. 16675/2022 1. The Commissioner, Kendriya Vidyalaya Sangathan, 18, Shaheed Jeet Singh Marg, New Delhi-16. 2. The Deputy Commissioner, Kendriya Vidyalaya Sangathan, 92, Gandhi Nagar, Bajaj Nagar, Jaipur- 302015. ----Petitioners Versus Mrs. Gurmail Kaur Wife Of Shri Balbir Singh, Aged About 65 Years, Resident Of 10/35, Malviya Nagar, Jaipur (Raj.)-302017. The Applicant Has Retired From K.V. No. 3, Jaipur From The Post Of Prt. ----Respondent D.B. Civil Writ Petition No. 16678/2022 1. Kendriya Vidhyalaya Sangathan (KVS), 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi-110016 Through Its Commissioner. 2. Joint Commissioner (Finance), Kendriya Vidhyalaya Sangathan, (KVS), 18, Institution Area, Shaheed Jeet Singh Marg, New Delhi-110016. 3. Deputy Commissioner, Kendriya Vidhyalaya Sangathan, (2 of 14) [CW-16677/2022] Regional Office, 92, Gandhi Nagar, Bajaj Nagar, Jaipur- 302015 (Rajasthan). 4. Principal, K.V. Eklingarh, Udaipur-313001 (Rajasthan). ----Petitioners Versus Gur Dayal Khatri S/o Late Shri H.R. Khatri, Aged About 66 Years, (Since Deceased On 10.05.2022 I.e. After Passing Of The Impugned Judgment) Through His Wife Smt. Sushma Khatri W/o Late Shri Gur Dayal Khatri, R/o 94/57, Gokhle Marg, Agarwal Farm, Mansarovar, Jaipur-302020 (Rajasthan) (Retired As Assistant From The Respondent No. 4) Group-B. ----Respondent D.B. Civil Writ Petition No. 16680/2022 1. Kendriya Vidhyalaya Sangathan, (HQ) 18-Institutional Area, Shaheed Jeet Singh Marg, New Delhi-110016. 2. The Joint Commissioner, Kendriya Vidhyalaya Sangathan, (HQ), 18-Institutional Area, Shaheed Jeet Singh Marg, New Delhi-110016. ----Petitioners Versus Dr. Saroj Madhur Wife Of Late Shri Madhur Chand, Aged About 71 Years, R/o Plot No. 63, Ganesh Vihar, Sirsi Road, Jaipur- 302012 (Rajasthan). Retired From The Post Of PGT (Bio) K.V. No. Kota (Rajasthan) Group-B ----Respondent D.B. Civil Writ Petition No. 16687/2022 1. Mrs. Bela Agarwal, Wife Of Shri A.K. Agarwal, Aged About 64 Years, Resident Of 40, Raghu Vihar, Maharani Farm, Durgapura, Jaipur. 2. Smt. Rekha Sharma, Wife Of Shri H.C. Sharma, Aged About 68 Years, Resident Of A-215-B, Sanjay Nagar A, Joshi Marg, Kalwar Road, Jhotwara, Jaipur-302012. 3. Shri Durga Lal Purohit, Aged About 73 Years, Resident Of 5, Purusharth Nagar, D, New Market, Near Tejaji Ka Chowk, Jagatpura, Jaipur-302017. 4. Mrs. Supriya Mallik, Wife Of Shri R.c.choudhary, Aged About 68 Years, Resident Of 168-D, Khadi Colony, Bajaj (3 of 14) [CW-16677/2022] Nagar, Jaipur. 5. Mrs. Alka Jain, Wife Of Shri Ashok Kumar Jain, Aged About 64 Years, Resident Of 62/191, Pratap Nagar, Sanganer, Jaipur. 6. Mrs. Suman Kapoor, Daughter Of Shri Jai Narayan Kapoor, Aged About 71 Years, Resident Of C-94, Malviya Nagar, Jaipur. 7. Smt. Kaushalya A. Chum, Wife Of Shri A.k.chum, Aged About 71 Years, Resident Of F-704, Mahima Iris-2, Behind Big Bazar, Swez Farm, Jaipur.) 8. Shri Mool Chand Sharma, Son Of Shri Sunder Lal Sharma, Aged About 72 Years, Resident Of 83, Bhomia Nagar, 100 Feet Road, Jhotwara, Jaipur. 9. Smt. Kaushalya Navani, Wife Of Shri Ashok Navani, Aged About 62 Years, Resident Of Plot No.3, Sindhi Colony, Opposite Bani Park Police Station, Bani Park, Jaipur 302016. Presently Working As H.m. In K.v.no.6, Jaipur 10. Vijaylakshmi Agarwal, W/o Of Shri J.k.bhagat, Aged About 68 Years, 61, Bajaj Nagar Enclave, Near Ganghi Nagar Rly. Station, Jaipur-302017. ----Petitioners Versus 1. The Commissioner, Kendriya Vidyalaya Sangthan, 18, Shaheed Jeet Singh Marg, New Delhi-16. 2. The Deputy Commissioner, Kendriya Vidyalaya Sangthan, 92, Gandhi Nagar, Bajaj Nagar, Jaipur 302015.) 3. Late Mrs. Promila Bhatnagar, Daughter Of Shri Deen Dayal Bhatnagar, Aged About 68 Years, Resident Of House No.11, Shivam Colony, Near City Of Golden Domes, Jagatpura, Jaipur-302017. (Since Deceased) 4. Mrs. Uma Saxena, Wife Of B.M. Saxena, Aged About 78 Years, Resident Of M-13, Income Tax Colony, Durgapura, Jaipur. ----Respondents D.B. Civil Writ Petition No. 17653/2022 1. Kendriya Vidyalaya Sangathan (HQ), 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi-110016 Through Its Commissioner. (4 of 14) [CW-16677/2022] 2. Joint Commissioner (Finance), Kendriya Vidyalaya Sangathan (Hq), 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi-110016. ----Petitioners Versus Ashwani Trikha Wife Of Shri Ashok Kumar Trikha, Aged About 58 Years, R/o 7/242 Malviya Nagar, Jaipur- 302017 (Rajasthan). Presently Working As Yoga Teacher In K.V. No. 3, Jaipur (Rajasthan) Group B ----Respondent D.B. Civil Writ Petition No. 17719/2022 1. Kendriya Vidyalaya Sangathan (HQ), 18- Institutional Area, Shaheed Jeet Singh Marg, New Delhi - 110016 Through Its Commissioner. 2. Joint Commissioner (Finance), Kendriya Vidyalaya Sangathan (HQ), 18-Institutional Area, Shaheed Jeet Singh Marg, New Delhi - 110016. 3. Deputy Commissioner, Kendriya Vidyalaya Sangathan, Regional Office, 92 Gandhi Nagar Marg, Bajaj Nagar, Jaipur - 302015 (Rajasthan) ----Petitioners Versus Shiv Charan Khandelwal S/o Shri Phool Chand Khandelwal, Aged About 58 Years, R/o 4-43 Dadabari Ext. Kota, 324009 (Rajasthan). Presently Working As TGT (P And He) In Kvs At Kv Bundi (Rajasthan) Group-B ----Respondent D.B. Civil Writ Petition No. 17795/2022 1. Kendriya Vidyalaya Sangathan (Hq), 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi - 110016 thorugh its Commissioner. 2. Joint Commissioner (Finance) Kendriya Vidyalaya Sangathan (HQ), 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi -110016. ----Petitioners Versus Mahendra Kumar Tiwari S/o Late Shri Jai Krishan Sharma, Aged (5 of 14) [CW-16677/2022] About 59 Years, R/o 4068 Ramchandraji Temple, Chandpole Bajar, Jaipur - 302001 (Rajasthan) Presently Working as Assistant Section Officer In Kvs (Regional Office) Jaipur - 302015 (Rajasthan) Group-B. ----Respondent For Petitioner(s) : Mr. Krishna Verma Mr. Praveen Sharma with Mr. Saket Gupta in DBCWP No. 16687/22 For Respondent(s) : Mr. Amit Mathur Mr. Krishan Kumar Sharma Mr. Brahm Prakash HON'BLE THE CHIEF JUSTICE AUGUSTINE GEORGE MASIH HON'BLE MR. JUSTICE SAMEER JAIN Judgment 27/07/2023 1. In the present batch of writ petitions, the scope of the controversy involved is identical. Therefore, considering the fact that the petitions warrant adjudication on common question(s) of law, with consent of learned counsel appearing on behalf of all the parties, D.B. Civil Writ Petition No. 16677/2022 titled as The Joint Commissioner & Anr. vs. Vijay Laxmi Sharma & Ors., is being taken up as the lead case. 2. By way of the instant writ petition, a challenge is made to the order dated 26.04.2022 passed by the Central Administrative Tribunal, Jaipur whereby the Original Application filed by the respondent-applicant has been allowed. 3. The ineluctable facts, necessary for discerning the issue at hand, are concisely noted herein-under:- 3/1 The respondent-applicant joined the services of the petitioner-Kendriya Vidhyalaya Sangathan (hereinafter, petitioner- KVS) as a Primary Teacher on 20.10.1983 and retired from the (6 of 14) [CW-16677/2022] services of the petitioner on 31.07.2016 upon attaining the age of superannuation. 3/2 In the 51st meeting of the Board of Governors, Kendriya Vidyalaya Sangathan held on 31.05.1988, it was decided that KVS shall implement mutatis mutandis the decision taken by the Government of India on the recommendations of the IVth Pay Commission for the KVS employees for change over from C.P.F. to Pension Scheme in the manner indicated in Office Memorandum No. 4/1/87-PIC-I dated 01.05.1987. Accordingly, vide KVS-Office Memorandum dated 01.09.1988, it was decided that the persons joining service on or after 01.01.1986 shall be governed by G.P.F- cum-Pension Scheme and will have no option for C.P.F Scheme and the employees who would like to continue in the C.P.F Scheme were, however, required to exercise a clear option to continue in the C.P.F Scheme. It was made clear in the said Office Memorandum dated 01.09.1988 that if no option to continue in C.P.F. is received by 28.02.1989, the employee(s) shall be deemed to have switched over to the pension scheme. 3/3 It is pertinent to note that in the present batch of petitions, there are two distinct types of cases. In the first type of cases, after the aforesaid Office Memorandum dated 01.09.1988 was issued, the applicants have specifically stated that they have not given any option to continue in the C.P.F. Scheme and in the second type of cases, subsequent to the aforesaid Office Memorandum of 1988, the applicants have given the option to continue in the C.P.F Scheme. Subsequently, in both types of cases, the applicants have afterwards preferred representations seeking a switch over from the C.P.F. Scheme to the G.P.F.-cum- (7 of 14) [CW-16677/2022] Pension Scheme. In few of the petitions, the representations have been made before the applicants retired from service whereas in the others, the representations were made subsequent to their respective retirements. However, such requests of the applicants were not acceded to by the petitioner-KVS and therefore, being aggrieved, the respondent-applicants had approached the learned Tribunal. 4. In the aforementioned factual matrix, learned counsel appearing on behalf of the petitioner-KVS has argued that the learned Tribunal while allowing the Original Application in favour of the respondent-applicants herein, has given the following finding, as noted below, which is perverse, especially on account of the fact that the respondent-applicants had consciously exercised the option to continue with the C.P.F Scheme in pursuance to the issuance of the Office Memorandum dated 01.09.1988 and as such, the respondent-applicants could not have been permitted to seek a switch over from the C.P.F. Scheme to the G.P.F-cum- Pension Scheme, at a belated stage. The relevant extract of the impugned order dated 26.04.2022 is reproduced herein-under:- “30. From the aforesaid, it is evident that there are two sets of judgments. In one set of judgments, the Hon’ble High Courts after considering the relevant OMs of 1987 & 1988 and the judgments of the Hon’ble Supreme Court in S.L. Verma (supra), Jaspal Kaur (supra) and also various judgments on the point of limitation, delay and laches, have allowed the claim of similarly placed persons whereas there is another set of judgments in which Single Bench of this Tribunal and/or Division Bench of this Tribunal has dismissed claim of the similarly placed persons. 31. I am of the considered view that once issue has been considered and the same has been allowed by (8 of 14) [CW-16677/2022] the Hon’ble High Courts after considering the various judgments of Hon’ble Supreme Court, including in the case of Jaspal Kaur (supra) and objection of limitation and law thereon, the judgments of the Hon’ble High Courts would be binding and not the judgment(s) of the Single Bench and/or the Division Bench of this Tribunal on the same issue. Accordingly, I am of the considered opinion that the applicants are entitled for conversion from C.P.F. to G.P.F. and the applicants’ claim is not barred by limitation, delay and laches. 32. In view of the aforesaid, I am in respectful agreement with the aforesaid common Order/Judgment dated 17.1.2022 passed by the Hon’ble Member (J) and respectfully, I am not in agreement with the aforesaid common Order/Judgment dated 17.1.2022 passed by the Hon’ble Member (A) in the aforesaid OAs. Order accordingly.” 5. Learned counsel for the petitioner-KVS further submitted that while adjudicating upon the Original Applications preferred by the respondent-applicants, the learned Tribunal erroneously placed reliance upon the judgment of the Apex Court as rendered in K.V.S and Ors. vs. Jaspal Kaur and Ors. reported in (2007) 6 SCC 13. In this regard, it was submitted that the dictum enunciated in Jaspal Kaur (supra) is not applicable in the peculiar facts and circumstances of the present case, especially in light of the fact that qua the switch over from the C.P.F Scheme to the G.P.F-cum-Pension Scheme, the respondent-applicants herein had been granted sufficient opportunity at the first instance to exercise their choice qua the applicability of the aforesaid schemes and pursuant to the Office Memorandum of 1988, the respondent-applicants had exercised their choice, which they subsequently sought to amend and/or change, which is entirely impermissible. It was further contended (9 of 14) [CW-16677/2022] that as per the ratio of Jaspal Kaur (supra), switch over was to be permitted only if the option exercised in writing or the other secondary materials in support thereof were produced which established that the said option, as sought subsequently, was exercised by the respondent-applicants. Hence, it was conclusively submitted that considering the fact that the respondent-applicant had submitted her option dated 27.09.1988 to remain in the C.P.F. Scheme with reference to the KVS Office Memorandum dated 01.09.1988, the learned Tribunal erred in placing reliance upon the dictum of the Apex Court as enunciated in Jaspal Kaur (supra). In light of the submissions made herein-above, learned counsel prayed for the quashing and setting aside of the impugned order dated 26.04.2022. 6. Per contra, learned counsel for the respondent- applicants has submitted that the order passed by the learned Tribunal is a well-reasoned speaking order, whereby after consideration of material aspects, the learned Tribunal has arrived at a logical conclusion and therefore, the impugned order dated 26.04.2022 calls for no interference of this Court. However, for the sake arguments, while not conceding to the contention(s) raised by the petitioner-KVS, learned counsel for the respondent- applicant submitted that even if it is assumed that the learned Tribunal incorrectly placed reliance upon the dictum of the Hon’ble Apex Court as enunciated in Jaspal Kaur (supra), even then, as per the judgment rendered by the Hon’ble Apex Court in University of Delhi vs. Shashi Kiran & Ors. reported in (2022) SCC Online SC 594, the switch over, as sought by the respondent-applicants, would be duly permissible. (10 of 14) [CW-16677/2022] 7. We have considered the contentions raised by learned counsel for both the sides, scanned the record of the petition and perused the judgments cited at Bar. 8. At the very outset, we deem it necessary to take note of the dictum of the Hon’ble Apex Court as enunciated in Shashi Kiran (supra). While dealing with the issue of switch over by employees from the C.P.F Scheme to the Pension-Cum-G.P.F. Scheme, the Hon’ble Apex Court dealt with three distinct types of eventualities. They are reiterated herein-under: “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 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 coutoff 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 (11 of 14) [CW-16677/2022] 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 letters addressed.” 9. While dealing with the aspect of switch over, in all the three distinct types of eventualities as noted above, the Hon’ble Apex Court held that the switch over from the C.P.F. Scheme to the G.P.F. Scheme shall be permissible and the claims of the employees shall not be barred by the doctrine of delay and laches and/or limitation, in light of the fact that the schemes as put in operation, accrued for the welfare of the employees. In essence, the very choice to select a scheme stemmed and/or formed part of a beneficial piece of legislation, thereby permitting switch over between the two schemes. Therefore, as per the dictum as enunciated in Shashi Kiran (supra), it has been categorically held that switch over shall be permissible to the employees, in the following three eventualities i.e. (i) wherein the employees had not exercised any option at all; (ii) wherein the employees had not exercised their option by the cut-off date and (iii) wherein the employees had exercised the positive option by the cut-off date but were eventually demanding a change in connection therewith. The rationale for permitting switch over in the said eventualities, as enumerated above, was that the very choice to select a scheme accrued for the welfare of the employees. 10. Therefore, it can be said that even the employees who had originally opted to remain in the C.P.F. Scheme and (12 of 14) [CW-16677/2022] subsequently sought to switch over to the Pension Scheme, on account of the latter being more beneficial to them, was permissible, especially due to the fact that non-grant of better and/or more lucrative benefits by way of pension and denying the same to one set of employees would per se be discriminatory notwithstanding the option exercised by the employees to remain in the C.P.F. Scheme. 11. In this regard, reliance can also be placed upon the judgment of the Division Bench of the Jharkhand High Court in the matter of Union of India vs. Priyabrat Singh reported in (2022) 4 JBCJ 458 (HC). In the said judgment, while dealing with two distinct viewpoints as expressed by the Hon’ble Apex Court in Jaspal Kaur (supra) and Shashi Kiran (supra), it was held that: “42. This Court is having two views of the Hon’ble Apex Court; one in the case of KVS v. Jaspal Kaur (supra) and another in the case of University of Delhi v. Shashi Kiran (supra). 43. The position of law is well settled that if there are two conflicting views of the Hon’ble Apex Court, the latest judgment is to be considered having the binding precedence, as has been held in Subhash Chandra v. Delhi Subordinate Services Selection Board [(2009) 15 SCC 458]. For ready reference, the relevant paragraphs of the aforesaid judgment is quoted:- “96. A decision, as is well known, is an authority for what it decides and not what can logically be deduced therefrom. In S. Pushpa [(2005 3 SCC 1], decisions of the Constitution Benches of this Court in Milind [(2001) 1 SCC 4] had not been taken into consideration. Although Chinnaiah [(2005) 1 SCC 394] was decided later on, we are bound by the same. It is now a well- settled principle of law that a Division Bench, in case of conflict between a decision of a Division Bench of two judges and a decision of a larger (13 of 14) [CW-16677/2022] Bench and in particular Constitution Bench, would be bound by the latter. (See Sardar Associates v. Punjab & Sind Bank [(2009) 8 SCC 257].)” 44. This Court, taking into consideration the aforesaid position of law that the latest judgment of the Hon’ble Apex Court is required to be followed, therefore, is of the considered view that the view as has been taken by the Hon’ble Apex Court in University of Delhi v. Shashi kiran (supra) is required to be followed herein also. 45. This Court, after having discussed the factual aspect and the legal position based upon the judgment rendered by Hon’ble Apex Court, has gone through the order passed by the Central Administrative Tribunal and found therefrom that the view expressed therein based upon the judgment passed by the Hon’ble Apex Court in University of Delhi v. Shashi Kiran (supra), requires no interference, since therein also the learned Central Administrative Tribunal has come to a view that in absence of any specific option furnished by one or the other employee of the organization, there cannot be any deemed option.” 12. Therefore, by placing reliance upon the dictum of the Hon’ble Apex Court as enunciated in Shashi Kiran (supra), as followed by the Division Bench of the Jharkhand High Court in Priyabrat Singh (supra) and also considering the fact that the very choice to select a scheme stemmed and/or formed part of a beneficial piece of legislation, thereby permitting switch over from the C.P.F Scheme to G.P.F Scheme in all three different types of eventualities as discussed above, we are in agreement with the view given by the learned Central Administrative Tribunal, Jaipur vide impugned order dated 26.04.2022. 13. Accordingly, in view of the observations made herein- above, the writ petitions filed by the petitioner-KVS are dismissed. Conversely, D.B. Civil Writ Petition No. 16687/2022 titled as Mrs. Bela Agarwal and Ors. vs. The Commissioner, Kendriya (14 of 14) [CW-16677/2022] Vidyalaya Sangathan and Ors. is allowed, in terms of the prayer(s) made therein. Pending applications, if any, stand disposed of. (SAMEER JAIN),J (AUGUSTINE GEORGE MASIH),CJ JKP/57-64 "