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TMI Blog2015 (1) TMI 1502X X X X Extracts X X X X X X X X Extracts X X X X ..... rder dated 06.01.2011 passed by the High Court of Delhi at New Delhi in Writ Petition (Civil) No. 3197 of 2010 and order dated 18.03.2011 in Review Petition No. 90/2011, by which the High Court set aside the Order dated 08.02.2010 passed by Central Administrative Tribunal in Original Application No. 2037 of 2008 filed by the Appellants herein. 3. The facts of these appeals are briefly stated hereinafter. Appellants herein are the employees of National Water Development Agency ("NWDA") which was established as a Society in July 1982 and was registered under the Societies Registration Act, 1860. The Society NWDA, which falls under the aegis and control, both administrative and financial, of the Ministry of Water Resources, is fully funded by the Government of India, headed by the Union Minister for Water Resources as the President. The NWDA framed Rules and Regulations for its smooth functioning. Whatever emoluments have been prescribed for the Government servants by the Central Government Office Memorandum ("O.M.", for short) the same apply mutatis mutandis to the employees of NWDA. By-law 28 of the NWDA also mandates that the rules and orders applicable to the Central Government e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ically 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 1st January, 1986, and who are still in service on the date of issue of these orders (viz, 1st 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 as option to continue under the CPF Scheme, if they so desire. The option will have to be exercised and conveyed to the Head of Office by 30.09.1987, 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. 3.3 The CPF beneficiaries, who were in service on 1st January, 1986, but have since retired and in whose case retirement benefits have also been paid under the CPF Scheme, will have an option to have their retirement benefits calculated under the Pension Scheme provided they refund to the government, the Government contribution to the Contributo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the CPF beneficiaries, who retired prior to 1.1.1986, and to the families of CPF beneficiaries who died prior to 1.1.1986, on the basis of the recommendations of the Fourth Central Pay Commission is separately under consideration of the Government. The said ex gratia payment, if and when sanctioned, will not be admissible to the employees or their families who opt to continue under the CPF Scheme from 1.1.1986 onward. (See Order (4) in this Appendix) 6.1 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. In the case of other contributory provident funds, such as Special Railway Provident Fund or Indian Ordinance Factory Workers Provident Fund or Indian Naval Dockyard Workers Provident Fund, etc. necessary orders will be issued by the respective administrative authorities. 6.2 These orders do not apply to Central Government employees who, on re-employment are allowed to subscribe to Contributory Provident Fund. These orders also do not apply to Central Government employees appointed on contract basis where the contribution to the Contributory Provident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 approved introduction of Contributory Provident Fund scheme for the employees of NWDA on the lines of Contributory Provident Fund Rules (India), 1962, as was clear in the appointment orders and CPF settlement cases of deceased employees of NWDA issued belatedly on 19/09/2007 and 23/12/2009. The NWDA did not make any distinct CPF rules. As stated by the Respondents, in the year 1982 NWDA had framed contributory Provident Fund Rules, which were duly approved by the Governing Body of NWDA. It rejected the proposal for introduction of Pension-cum-GPF-DCRG Scheme in NWDA. The Appellants sought Right to Information ("RTI") on 18.7.2000 whereupon the decision of Ministry of Finance dated 16.3.2000 and the decision taken by the Governing Body on 30.3.2000 that the implementation of the O.M. was rejected by the Governing body, was appraised to them. 5. The Appellants filed O.A. No. 2037 of 2008 before the Central Administrative Tribunal assailing the decision of the Governing Body dated 30.03.2000 rejecting their request to switch-over to the Pension Scheme and letter dated 16.3.2000 issued by the Finance Ministry whereby the request of the Appellants to switch-over to the Pension Scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). Accordingly, the Tribunal vide its order dated 08.02.2010, set aside the orders dated 16.03.2000 and 30.03.2000 impugned before it, allowed the O.A. No. 2037 of 2008 and directed the Respondents to implement O.M. dated 01.05.1987 and treat the employees of NWDA as covered under Pension Scheme in terms of Central Civil Services (Pension) Rules, 1972 ("CCS Pension Rules", for short) w.e.f. 01.01.1986 with all benefits. 7. Aggrieved by the decision of the Tribunal, the Respondents filed writ petition Under Article 226 and 227 of Constitution of India, challenging the order 08.02.2010 passed by the Tribunal. The Respondents did not urge the issue of limitation before the High Court. The question that arose for consideration before the High Court was as to the applicability of the O.M. dated 01.05.1987 to the employees of NWDA and whether reliance placed by the Tribunal upon the decision in S.L. Verma's case was correct. The High Court after referring to clauses 6.1 and 7.2 of the O.M., held that the employees of NWDA are not "Civilian Central Government employees" as NWDA is an autonomous body working under administrative control of the Ministry of Water Resources; the employee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourts along with their pleadings. Only at final stage they were included. NWDA has not brought the said Rules to the knowledge of the Appellants. The Rules have not been approved by the Governing body and are not in operation. The specific case of Respondent T.M. Sampath in review petition was that the Respondents had not framed any CPF Rules 1982. No copy of the said Rules was ever provided. As evident from the appointment letters, at least 100 appointments on record proved that the Petitioners were governed by the CPF Rues of 1962. It was clearly mentioned under item 6 that they would be compulsorily required to contribute to the CPF Rules 1962. These appointments were made after the decision taken by the Governing Body on 31.3.1983. If the NWDA Rules, 1982 were in operation, there was no reason for the Respondent authority not to mention in the offer of appointments that the employees would be governed by NWDA Rules, 1982. All orders of Government of India in respect of 1962 Rules were adopted by NWDA from time to time. Under the bye-laws, the Governing Body is empowered to make and amend any rules of NWDA. But no separate CPF Rules, 1982 have ever been put up in prescribed form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Governing Body or Ministry of Finance that they are obligated to bring in effect the change-over. Their contention that they placed the issue on 30.3.2000 is per say illegal and arbitrary. The letter of Department of Expenditure of 16.03.2000 only provided advice that introduction to autonomous organization should not be made in routine way. The Governing Body of NWDA is bound by legal fictions for providing pension scheme. The legal fictions are created by reason of O.M. of 01.05.1987, acceptance of 4th Code of Civil Procedure recommendations, bye-law 28 and sub rule (6)(iv) of Rule 209 of General Financial Rules that service conditions of autonomous organization receiving more than 50% of recurring expenditure by way of grant in aid from Central Government should be treated at par with their counterparts in Central Government. In view of the decision in Sudhir v. TISCO (1984) UJ SC 986, any rule which places absolute discretion of an administrative authority the power to grant or refuse pension or gratuity is arbitrary and violative of Article 14. The Petitioners are performing duties in the interest of State, and they should be provided conditions and benefits of service in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ministry of Water Resources the NWDA cannot introduce the pension scheme on lines of CCS Pension Rules. The Petitioners have misled the Court that the Government orders are adopted by the Respondent where rules are not framed. The Petitioners are covered Under Clause 7.2 in view of the O.M., it was examined by Department of Pension and Pensioners Welfare and Ministry of Finance. Both after examining the proposal did not agree to the contention of the Petitioners. The allegation, that NWDA had intentionally not circulated the O.M. is wrong. The changeover to Pension Scheme was not automatic as NWDA was following its own CPF Rules, 1982. The rules and Regulations in different autonomous bodies are different so the Petitioners cannot be equated at par with their counterparts working in Government Departments and Autonomous Bodies as contended in Union of India v. Dr. Jai Dev Wig and Ors. 13. Based on the provisions in O.M. proposal for framing of DCRG Rules for employees of NWDA was processed by the officers on deputation from pensionable departments with help from officers/employees. The officer and employees were fully involved and they cannot claim that they were totally ignorant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; and each case must be determined on its own merits. Thus, the plea of the employees of NWDA to be treated at par with their counterparts in Central Government Under Sub-rule (6)(iv) of Rule 2009 of General Financial Rules, merely on the basis of funding is not applicable. 16. Even if it is presumed that NWDA is "State" Under Article 12 of the Constitution, the Appellants have failed to prove that they are at par with their counterparts, with whom they claim parity. As held by this Court in Union Territory, Chandigarh v. Krishan Bhandari (1996) 11 SCC 348, the claim to equality can be claimed when there is discrimination by the State between two persons who are similarly situated. The said discrimination cannot be invoked in cases where discrimination sought to be shown is between acts of two different authorities functioning as State Under Article 12. Thus, the employees of NWDA cannot be said to be 'Central Government Employees' as stated in the O.M. for its applicability. 17. Thus, by reason that the employees are governed by NWDA CPF Rules, 1982, the O.M. dated 01.05.1987 is not applicable to the Appellant-employees. Further, as they have not established that they a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utandis till the Samiti framed its own rules. But the resolution has not been shown to have been approved by the Government or District Inspector of Schools. In any case, the demands of the employees of JNVS have been supported as well as voiced by various Government functionaries including Ministry of Human Resource and Development through its letter to the Finance Ministry in 1998 seeking approval of the Finance Ministry to introduce the Pension Scheme to JNVS, Y.N. Chaturvedi Committee Report on Review of Management Structure and Operating Mechanism of Navodaya Vidayala Samiti, Parliamentary Committee on Functioning of Navodaya Vidayala Samiti through its 154th, 184th and 198th Reports. All these committees have strongly recommended that the employees of JNVS be brought at par with the employees of Kendriya Vidyalaya and be given similar service benefits, including pension under 1972 Rules. However, the major hurdle in implementation of Pension Scheme to the employees of JNVS has been the financial constraints as the Finance Ministry never gave a go-ahead for such implementation. To substantiate their claim, JNVS engaged an actuary to determine the financial feasibility of imple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , wherein the Supreme Court had held that when an existing scheme is liberalized, the employer cannot ordinarily grant the benefit to one class of employees and deny it to others by choosing arbitrary cut-off date. However, when a completely new scheme is introduced, whole new set of considerations are involved primarily being the financial implications. On these grounds the High Court dismissed the Writ petition stating that the Petitioner could not prove that NPS was arbitrary or discriminatory. 23. Following issues are involved in these matters for our consideration: (i) Whether O.M. dated 1-05-1987 applies to the employees of the NVS? (ii) Whether the financial implication can be valid consideration for denying pension? (iii) Whether the employees of the Navodaya Vidyalaya are entitled to parity in pension with the employees of other autonomous institutions like Kendriya Vidyalaya, NCERT, National Open Schools and Tibetan Schools Association? (iv) Whether the New Pension Scheme, 2004 is arbitrary or discriminatory? 24. Learned Counsel appearing for the Petitioners/Appellants have emphasized on the applicability of the Office Memorandum of the Department Public Grievan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at fundamental rights cannot be violated on the grounds of financial constraints and that the right to education is a fundamental right which cannot be jeopardized by compromising with quality of teachers in schools due to poor post service benefits. Reliance was also placed on Municipal Council, Ratlam v. Vardichand (1980) 4 SCC 162, All India Imam Organization v. Union of India (1993) 3 SCC 584, and Kapila Hingorani v. State of Bihar (2003) 6 SCC 1. 29. Learned Additional Solicitor General appearing for the Respondents argued that none of the cases relied upon by the Petitioners/Appellants involves right to pension and that Pension is not a Fundamental Right. She cited Associate Banks Officers' Association v. State Bank of India and Ors. 1998 (1) SCC 428, wherein this Court observed that many ingredients go into shaping of the wage structure of any organization, including the economic capability of the employer. Taking simplistic approach of granting higher remuneration to workers of one organization because another organization had granted its employees, may lead to undesirable results and the application of the doctrine would be fraught with danger and may seriously affect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07-09-2006 to the Ministry of HRD, recommended extension of Pension Scheme to NVS. 31. Learned Additional Solicitor General, appearing on behalf of the Respondents submitted that the issue of extending Pension Scheme of 1972 to the NVS employees is an administrative decision which is made keeping in mind various determining factors and that it cannot be said all schools and educational institutions constitute one class. She cited All India Sainik Schools Employees Association v. Defence Minister-cum-Chairman Board of Governors, Sainik School 1988 (1) Supp SCC 205, wherein the Sainik School employees had sought writ of mandamus to extend all service benefits and advantages to them as are applicable to the employees of the KVS. In the said case the Supreme Court dismissed the petition on the ground that the employees of Sainik Schools cannot be considered employees of the Central Government nor can they be treated at par with KVS employees. 32. The Respondent also relied on S.C. Chandra v. State of Jharkhand (2007) 8 SCC 279, wherein this Court held that the doctrine of 'equal pay for equal work' is applicable only when there is total identity in two groups of employees. Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsion but it cannot be applied to the present case as the employees in the present case were not promised any pension at the time of their appointment and no deductions were made during their service towards any pension fund. Thus, it cannot be said that the employees have been denied what was rightfully theirs. 37. The Appellants had raised the issue of the New Pension Scheme which was notified in 2008 and whose cut-off date was 01.01.2004 in the writ petition and the SLP, however, it wasn't pressed during the arguments. In any case, they have claimed that the New Pension Scheme, is also discriminatory and that the said cut-off date is arbitrary. The learned Counsel for the Appellants submitted that the New Pension Scheme is not at par with the Pension Scheme under 1972 Rules as it does not have provisions for death gratuity, family pension and medical benefits. Also, the two tier system of the New Pension Scheme was challenged. 38. We have carefully perused the judgment of the High Court of Jharkhand in W.P. 4946 of 2008 against which SLP(C) No. 19102/2012 has been filed and we concur with the view of the High Court. The cut-off date is a domain of the employer and so the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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