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Thursday, January 22, 2015

The cut-off date is a domain of the employer and so the introduction of new scheme of pension will be done considering all the relevant factors including financial viability of the same. No interference is warranted unless there is gross injustice is perpetrated. The Appellants have failed to prove any arbitrariness and discrimination with respect to the New Pension Scheme.=CIVIL APPEAL NOS. 712-713 OF 2014 (Arising out of SLP(C) Nos.3106-3107 of 2012) T.M. Sampath & Ors. ... Appellants :VERSUS: Secretary, Ministry of Water Resources & Ors. ... Respondents

                                                                  REPORTABLE



                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION



        CIVIL APPEAL NOS.       712-713                      OF  2014
                (Arising out of SLP(C) Nos.3106-3107 of 2012)

T.M. Sampath & Ors.                                      ... Appellants

                                  :VERSUS:

Secretary, Ministry of Water Resources & Ors.        ... Respondents

WITH

        CIVIL APPEAL NOS.        714-715                    OF  2014
               (Arising out of SLP(C) Nos.20425-20426 of 2011)

S.C. Awasthi & Ors.                                       ... Appellants
                                  :Versus:

Union of India & Ors.                              ... Respondents
                                        AND

                 CIVIL APPEAL NO.    716           OF  2014
                  (Arising out of SLP(C) No.19102 of 2012)

P.N. Mishra                                        ... Appellants
                                  :Versus:

Union of India & Ors.                              ... Respondents
                                     AND

                    WRIT PETITION (CIVIL) NO. 556 OF 2012

All India Navodaya Vidyalaya
Staff Association and Ors.                   ....Petitioners
                                  :Versus:

Union of India & Ors.                              ... Respondents

                                AND



                    WRIT PETITION (CIVIL) NO. 518 OF 2012

S. Kannan and Ors.                           ....Petitioners
                                  :Versus:

Union of India & Ors.                              ... Respondents







                               J U D G M E N T



Pinaki Chandra Ghose, J.

Leave granted in all the SLPs.



CIVIL APPEALS @ SLP(C) NOS.3106-3107 of 2012 AND SLP(C)  NOS.20425-20426  of
2011)



These appeals, by special leave, have been filed against  the  judgment  and
order 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.



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  employees  shall  apply
mutatis mutandis to the employees of the NWDA  subject  to  modification  by
the Governing Body concerning service conditions and only  in  case  of  any
doubt, the matter has to be referred to the Governing Body for  a  decision.
Bye-law 26(a) provides for the emoluments structure for all  employees  that
will  be  adopted  by  NWDA,  with  the  approval  of  Ministry  of  Finance
(Department of Expenditure).  Bye-law 28 provides that till  such  time  the
NWDA frames its rules governing service conditions of the  employees,  rules
and orders applicable to Central Government Employees  shall  apply  mutatis
mutandis, subject to such modifications as made by NWDA from time to time.
As per the appellants, NWDA had implemented all the recommendations  of  the
Fourth Central Pay Commission  from  22.10.1986.   The  pay  scales  of  the
employees of NWDA were revised as  made  applicable  to  Central  Government
employees.  Pursuant  to  the  recommendation  of  the  Fourth  Central  Pay
Commission, Office Memorandum dated 01-05-1987 was issued by  the   Ministry
of Personnel, Public Grievance  and  Pension,  Department  of  Pensions  and
Pensioners'  Welfare,  for  switch-over  of  employees   from   Contributory
Provident Scheme to Pension Scheme,  according  to  which  all  Contributory
Provident Fund (CPF) Scheme  beneficiaries,  who  were  in  service  of  the
Central Government on 1.1.1986,  were  deemed  to  have  come  over  to  the
Pension Scheme unless they specifically opted  out  to  continue  under  CPF
Scheme. This Pension Scheme was formulated by the Government under the  1972
Pension Rules. The Office Memorandum dated 01-05-1987 reads as under:


"Change-over  of  employees  from  Contributory  Provident  fund  Scheme  to
Pension Scheme
(G.I., Dept. of Pensions  &  Pensioners  Welfare,  O.M.  No.4/1/87-P.I.C.I.,
dated the 1st May, 1987.)

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 6th 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  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 Contributory  Provident  Fund
and the interest thereon, drawn by them at the time  of  settlement  of  the
CPF Account. Such option shall be exercised latest by 30.9.1987.

3.4   In the case of CPF beneficiaries, who were  in  service  on  1.1.1986,
but have been since retired, and in whose  case  the  CPF  Account  has  not
already been paid, will be allowed  retirement  benefits  as  if  they  were
borne on pensionable establishments unless benefits settled  under  the  CPF
Scheme.

3.5   In the case of CPF beneficiaries, who were  in  service  on  1.1.1986,
but have since died either before retirement or after retirement,  the  case
will be settled in accordance with para 3.3 or 3.4 above, as  the  case  may
be. Options in such cases will be exercised latest  by  30.9.1987,   by  the
widow/widower and in the absence of widow/widower by  the  eldest  surviving
member of the family who  would  have  otherwise  been  eligible  to  family
pension under the Family Pension Scheme if such scheme were applicable.

3.6  The option once exercised shall be final.

3.7  In the types of cases covered  by  paragraphs  3.3  and  3.5  involving
refund of Government's contribution  to  the  contributory   provident  fund
together with interest drawn at the time  of  retirement,  the  amount  will
have to be refunded latest by the 30th September, 1987.  If  the  amount  is
not refunded by the said date, simple interest thereon will  be  payable  at
10% per annum for period of delay beyond 30.9.1987.

4.1  In the case of employees who are deemed to come  over  or  who  opt  to
come over to the Pension Scheme in terms of paragraphs  3.3,  3.4  and  3.5,
the retirement and death benefits will be regulated in the  same  manner  as
in case of temporary/ quasi-permanent or permanent Government  servants,  as
the case may be, borne on pensionable establishment.

4.2  In the case of employees referred  to  above,  who  come  over  or  are
deemed to come over to the Pension Scheme, the government's contribution  to
the CPF Account of the employees will be  resumed  by  the  government.  The
employee's contribution together with the interest thereon  at  his   credit
in the CPF Account will be transferred to the CPF Account to be allotted  to
him on his coming over to the Pension Scheme.

4.3 Action to discontinue subscriptions/ contributions to  CPF  Account  may
be taken only after the last date specified for  exercise  of  option,  viz.
30.9.1987.

5.  A proposal to grant ex gratia payment 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 Fund  is
regulated in accordance with the terms of contract.

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 Department 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)

7.1 Ministry of Agriculture, etc. are requested to  bring  these  orders  to
the notice of  CPF  beneficiaries  under  them,  including  those  who  have
retired since 1.1.1986, and to the families  covered  by  paragraph  3.5  of
these orders.

7.2  Administrative  Ministries  administering  any  of   the   Contributory
Provident Fund Rules, other than Contributory Provident Fund  Rules  (India)
1962,  are  also  advised  to  issue  similar  orders  in  respect  of   CPF
beneficiaries covered by those rules in consultation with the Department  of
Pension and Pensioners' Welfare.

8.  These orders issue with the concurrence  of  the  Ministry  of  Finance,
Department of Expenditure,  vide  their  U.O.  No.2038/IS  (Pres)/97,  dated
13.4.1987."


The  above  switch-over  was  applicable  to  all  the  Central   Government
employees who were subscribing to the Contributory Provident Fund under  the
Contributory Provident Fund Rules, 1962.  As stated in paragraph 7.2 of  the
said O.M., this switch-over was not  applicable  ipso  facto  to  autonomous
bodies under the Ministries of Central Government who  were  subscribing  to
any other scheme other than CPF Rules 1962, and therefore, it  directed  the
administrative bodies to issue similar  orders  for  CPF  beneficiaries,  in
consultation  with  Department  of   Pensions   and   Pensioners'   Welfare.
Subsequently  the  employees  of  NWDA  made  representations  to  NWDA  and
Ministry of Water Resources in view of the directions in the O.M.,  pursuant
to which the Ministry of Water Resources sought advice from the Ministry  of
Finance (Department of Expenditure). The Finance Ministry  vide  its  letter
dated 16.03.2000, advised autonomous bodies to continue to  follow  the  CPF
Scheme or work out an annuity scheme. Under paragraph 3 of the  said  letter
it stated that  introduction  of  pension  scheme  on  Government  of  India
pattern should not be agreed as a rule, and any  exception  in  this  regard
would be referred to the Department. The Governing Body of NWDA in  its  3rd
meeting held on 31.3.1983 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.



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 pursuant to the  O.M.  dated
1.5.1987, had been turned down.



  Before the Central Administrative Tribunal  (hereinafter  referred  to  as
"the Tribunal"), when the case came up for hearing, the respondents  took  a
preliminary objection as to the cause of action being barred  by  limitation
on the ground that though the O.M. is  dated  01.05.1987,  yet  few  members
were associated in the 30th meeting of the Governing Body  having  knowledge
of the resolution passed by the respondents  on  30.03.2000  and  that  they
cannot resort to a cause of action on the basis of RTI  after  8  years,  to
file the above OA. The  Tribunal  overruled  the  objection  raised  by  the
respondents and  after  referring  to  various  authorities,  observed  that
fundamental  right  of  grant  of  pension  does  not  attract   limitation.
Moreover, on inaction the Government is precluded  from  raising  the  hyper
technical plea to defeat the rightful claim of applicants. The order  passed
in 2000 was reiterated to the applicants  in  2007  thus  the  case  of  the
applicants was good on merits. The Tribunal after  referring  to  the  O.M.,
the bye-laws 26(a) & 28 and the decision of this Court in Union of India  v.
S.L.Verma, (2006) 14 SCALE 56, held that there was nothing in  the  language
of clause 6.1 of the O.M. dated 01.05.1987, to suggest that  the  said  O.M.
does not apply to the employees of autonomous bodies controlled  by  Central
Government and the said view finds no support from clause 7.2  of  the  O.M.
The advice dated 16.03.2000  of the Ministry of Finance to the  Ministry  of
Water Resources, at best, can be treated as an executive  order and  as  the
same does  not have retrospective effect, it has no application to  overrule
the  O.M.  The  Tribunal  further  held  that  the  NWDA/Ministry  of  Water
Resources committed an error in seeking  advice  from  Ministry  of  Finance
regarding implementation of the O.M.  for  the  reason  that  bye-law  26(a)
provides that no approval of Central Government is required to adopt  scales
of pay or allowances identical to those adopted for corresponding  posts  as
per order issued by Central Government. As per bye-law 28,  since  no  rules
were framed by  NWDA  regarding  switch-over  of  its  employees,  the  O.M.
squarely applied to NWDA employees and the question of applicability of  the
O.M. to the employees of the autonomous bodies is no longer res  integra  by
the decision of the Supreme Court in Union of India  v.  S.L.Verma  (supra).
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.



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 employees of NWDA are governed  by  National  Water
Development Agency  Contributory  Fund  Rules,  1982  and  not  Contributory
Provident Fund (India) Rules 1962, and in that view of the matter, they  are
covered under third situation envisaged under clause 7.2 of the  O.M.  dated
01.05.1987 and not under the two situations under clause 6.1 and clause  7.2
thereof.  The High Court was of the  opinion  that  the  Ministry  of  Water
Resources ideally should have  consulted  the  Department  of  Pensions  and
Pensioners'   Welfare  for  issuance  of  similar  orders  as   O.M.   dated
01.05.1987.  However,  the  Ministry  of  Water  Resources   consulted   the
Department of Expenditure, Ministry  of  Finance  in  respect  of  the  said
matter instead of consulting the  Department  of  Pensions  and  Pensioner's
Welfare. As regards the reason given by the Tribunal on  by-law  28  of  the
NWDA is concerned, the  High  Court  opined  that  a  bare  reading  of  the
provision makes it clear that rules and orders  applicable  to  the  Central
Government employees shall apply mutatis mutandis to the employees  of  NWDA
only in cases where NWDA has not framed its own rules and regulations.  NWDA
had framed its own CPF Rules in 1982 and thus, by-law  28  has  no  role  to
play in the instant case. On careful comparison of facts of S.L. Verma  case
with the facts of the case at hand, the High Court observed that  there  are
two material facts which entirely distinguish S.L. Verma case from the  case
at hand. First being that the O.M. dated 01.05.1987 was fully applicable  to
the employees in the S.L. Verma case while this is disputed in  the  present
case. The second fact being  that  the  S.L.  Verma  case  proceeds  on  the
premise that the recommendation of Fourth Central Pay Commission  pertaining
to switching-over of the employees  from Contributory  Provident  Scheme  to
Pension Scheme  was accepted by the employer in that case. However,  in  the
present case, it was specifically pleaded by the appellants  that  the  said
recommendations of Fourth Central Pay Commission were not  accepted  by  the
Governing Body of NWDA.



Learned counsel for the appellants claimed that O.M.  dated  01.05.1987  was
scrutinized by the Supreme Court in the case of S.L. Verma (supra)  and  the
present case is fully covered by the  ratio  of  said  case.  NWDA  has  not
framed CPF Rules in 1982. There was no reason for not placing on record  the
CPF Rules 1982 as approved by the Governing Body  before  the  Courts  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 format like those of medical attendance, earned  leave  and
recruitment rules except introduction of CPF Scheme on lines of  CPF  Rules,
1962. Going by the above facts the employees should  get  all  the  benefits
which Central Government Civilian Employees are entitled to.  Under  bye-law
28, only in case of doubt the matter is referred to  Governing  Body  for  a
decision, there is no provision to  switchover  or  application  of  Pension
Rules as envisaged through O.M. Thus when there was  no  working  Rules  and
Regulation as to conversion from CPF to Pension  Scheme  the  order  by  the
Pension  Department  passed  on  01.05.1987   would   be   applicable.   The
petitioners are covered under clause 6.1 of O.M. read  in  conjunction  with
clause 7.2 and in view of bye-law 28 the O.M.  will  be  applicable  mutatis
mutandis. NWDA had also not circulated the O.M. amongst the employees.  Thus
they never submitted their option for  switch  over.  Accordingly  they  are
deemed to have opted by implication of not giving option.



The Respondent acted in mala  fide  in  implementing  the  second  O.M.  for
introduction of Death-cum-Retirement Gratuity Scheme  which  was  meant  for
Civilian Central government employees  who  wanted  to  continue  under  CPF
Rules 1962. It is submitted that six  to  seven  employees  who  were  in  a
position to implement all the order had been  absorbed  by  taking  pro-rata
pension.  The  O.M.  was  equally  applicable  o  Autonomous   bodies.   The
Government had failed to show that it  had  refused  to  finance  Autonomous
bodies. It had acted arbitrarily by rejecting the claim of Petitioners.  The
petitioner's Fundamental Rights under Article 14 and 16  had  been  violated
by not treating them at par  with  their  similar  counterparts  in  Central
Government, when the NWDA falls within the meaning of "State" as defined  in
Article 12 of Constitution. The  petitioners  were  in  regular  service  of
Respondents after confirmation and thus  they  are  entitled  to  protection
under Article 311 of Constitution.  The Respondents have  acted  wrongly  by
the fact that NWDA  implemented  all  recommendations  of  4th  Central  Pay
Commission except the changeover of CPF beneficiaries to Pension scheme,  as
all top officers who were responsible for implementing  were  on  deputation
and were already covered under the Pension Scheme.



The Respondents have not pursued the change-over of CPF  to  Pension  Scheme
in a proper way. NWDA had  never  informed  either  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  CPC
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 vs.  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 view of the Court in Accountant General vs. Bakshi  A  (1962)  SC
505.  The  denial  of  retrial  benefits  is  denial  of  livelihood   after
superannuation which is violative of Article 21.



The Respondents submitted that the same is wrong  and  that  there  are  two
material facts  which  entirely  distinguish  S.L.  Verma's  case  from  the
present case. They dismissed the contention stating the  same  to  be  wrong
and submitted that the organization had  framed  its  own  CPF  Rules,  1982
which were duly approved by the NWDA Governing Body in its meeting  held  on
31.03.1983.  The  CPF  rules  were  made  effective   retrospectively   from
15.07.1982. The Respondents submitted that when  the  CPF  Rules  1982  were
framed on the lines of the 1962 Rules, then mere  mentioning  of  the  wrong
year doesn't confer any constitutional right that  the  employees  would  be
governed by CPF Rules 1962. It  is  also  noteworthy  that  NWDA  came  into
existence in 1982. Posts in different grades were filled  either  by  direct
recruitment or by deputation. For this reason, even  after  NWDA  CPF  Rules
were formulated, orders were issued mentioning  compulsory  contribution  to
CPF under CPF Rules 1962. Rule 10(2) of  NWDA  CPF  Rules,  1982  says  that
contribution shall be a percentage of the subscriber's contribution  or  may
be prescribed by Government. Rule 11  provides  that  the  agency  will  pay
interest at such rate as the Central Government prescribes on  subscriptions
to CPF. It is submitted that all  orders  of  Central  Government  were  not
automatically made applicable to employees of NWDA. After acceptance of  4th
pay recommendations the  OM  was  issued  extending  benefits  to  employees
governed by CPF Scheme. As  NWDA  was  following  its  own  CPF  Rules,  the
benefits were extended by framing its own Rules in consultation  with  nodal
ministry. These rules were approved by Governing Body in the  21st  meeting.
Since the rules and regulation governing service conditions had been  framed
by NWDA, bye-law 28 has no application.



As  NWDA  is  a  temporary  organization  all  officer  are  also  temporary
employees. No employees  have  been  declared  as  permanent.   The  service
rendered in NWDA by its  employees  is  non-pensionable.  The  establishment
expenditure of NWDA and for implementing the mandate of NWDA,  grant-in  aid
is provided by Government. Without any  specific  approval  of  Ministry  of
Finance, Department of Pension  and  Pensioner's  Welfare  and  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  vs.  Dr.
Jai Dev Wig and Ors.



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 of the orders. The changeover  of  employees  cannot  be  suo-motto
made applicable for NWDA employees. The petitioners  have  failed  to  prove
arbitrary action of the respondents and hence Sudhir vs.  TISCO,  (1984)  UJ
SC 986, and  Accountant  General  vs.  Bakshi,  AIR  1962  SC  505,  has  no
application. In view of the law laid down in Steel Authority of  India  Ltd.
vs. Dibeyendu Bhattacharya (2011) 2 SLR 243, petitioners have  no  cause  of
action.



In light of the facts and circumstances of this  case  and  the  submissions
made by the learned counsel on both sides, it can  be  concluded  that  NWDA
had framed its regulation the CPF Rules, 1982 and they  were  duly  approved
by the Governing Body of NWDA. As NWDA  is  an  autonomous  body  under  the
Ministry of Water Resources, it has framed it  own  bye-laws  governing  the
employees. It has been time and again reiterated that the Court  must  adopt
an attitude of total non-interference or minimal interference in the  matter
of interpretation of Rules framed by autonomous institutions. In Chairman  &
MD, Kerala SRTC vs. K.O. Varghese and Others, (2007) 8 SCC 231,  this  Court
held:

"KSRTC is an autonomous corporation established  under  the  Road  Transport
Corporation Act, 1950. It can regulate  the  service  of  its  employees  by
making appropriate regulations  it  that  behalf.  The  High  Court  is  not
correct in thinking that there is  any  compulsion  on  KSRTC  on  the  mere
adoption of Part III of  KSR  to  automatically  give  all  enhancements  in
pension and other benefits given by the State Government to its  employees."


Thus, as the  appellants  are  governed  by  the  CPF  Rules1982,  the  O.M.
applicable to Central Government employees is not applicable to them.



 On  the  issue  of  parity  between  the  employees  of  NWDA  and  Central
Government employees, even if it is assumed that  the  1982  Rules  did  not
exist or were not applicable on the date of the O.M.  i.e.  01.05.1987,  the
relevant date of parity, the principle of parity  cannot  be  applicable  to
the employees of NWDA. NWDA cannot be treated as an instrumentality  of  the
State under Article 12 of the Constitution merely  on  the  basis  that  its
funds are granted by the  Central  Government.   In  Zee  Telefilms  Ltd.  &
Another v. Union of India & Ors., (2005) 4 SCC 649,  it  was  held  by  this
Court that the autonomous bodies having some nexus with  the  Government  by
itself would not bring them within the sweep of the expression  'State'  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.



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.



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  are  Central  Government
employees, at par with  their  counterparts,  their  claim  of  parity  with
Central Government Employees is also defeated.



In view of the discussion in the foregoing paragraphs, we do  not  find  any
merit in these appeals which are accordingly dismissed. There  shall  be  no
order as to costs.




WRIT PETITION (CIVIL) NOS. 556 & 518  OF 2012 AND
CIVIL APPEAL @ SLP(C) No.19102/2012)


Writ Petition (Civil) Nos. 556/2012 and 518/2012 and Special Leave  Petition
(C) No.19102/2012 are other group of matters arising  out  of  same  factual
matrix and the point of contention  in  all  three  matters  is  same.  Writ
Petition  (Civil)  No.556/2012   has  been  filed  by  All  India   Navodaya
Vidyalaya Staff Association and Writ Petition (Civil) No.518/2012  has  been
filed by the Principals and other officials of  Jawahar  Navodaya  Vidyalaya
and the employees of the Navodaya  Vidyalaya  Samiti,  for  issuance  of  an
appropriate writ in the nature of mandamus or any other direction/s  to  the
respondents to introduce and implement CCS Pension Scheme, 1972 to  all  the
employees of the Navodaya Vidyalaya Samiti. SLP(C)  No.19102/2012  has  been
filed by Shri P.N. Mishra against the order dated 09.12.2012 passed  by  the
High Court of Jharkhand at Ranchi dismissing  the  writ  petition  filed  by
him.



The facts necessary for disposal of these cases, stated  briefly,  are  that
the idea of Jawahar Navodaya Vidyalaya was conceptualized in  1985  and  two
model schools were started, one each at Jajjhar in Haryana and  Amravati  in
Maharashtra. However, the Jawahar Navodaya Vidayala Samiti  was  established
under the Registration of Societies Act, 1960 on 28-02-1986.  It  is  stated
that Jawahar Navodaya Vidyalaya schools  have  been  established  under  the
aegis of the Ministry of Human Resource Development,  Government  of  India.
The employees of Jawahar Navodaya Vidyalaya Samiti  ("JNVS")  demanded  that
they be brought under the GPF-cum-Pension Scheme like their counterparts  in
other educational institutions,  like  Kendriya  Vidyalaya  Samity  ("KVS"),
IITs, Sainik  Schools,  NCERT  etc.  However,  they  have  continued  to  be
governed only by CPF Scheme and were excluded from the Pension  Scheme  till
2004. It has been submitted on behalf  of  the  Petitioners/appellants  that
the Executive Committee of JNVS had adopted a resolution which proposed  the
application of Central Government Service Rules  to  its  employees  mutatis
mutandis 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 Vidayalaya 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 implementing  the  Pension  Scheme
to JNVS employees and it was found that if the employees  contribution  upto
31.03.2005 is transferred to the  Pension  Fund  by  31.03.2005  and  annual
contribution of @18%  of  salary  on  monthly  basis  from  01.04.2006,  the
implementation of the scheme is financially viable.


The  Central  Government  formulated  New  Pension  Scheme,  2004  for   the
employees of the JNVS in  response  to  their  repeated  demands.  This  New
Pension Scheme was implemented from 01.01.2009. All the  employees  who  had
joined prior to the date of implementation were given an  option  to  either
continue under the CPF Scheme or to switch over to the New  Pension  Scheme.
The cut-off date for this New Pension Scheme was 01.01.2004;  therefore,  it
was not available to the employees who had joined the service prior to  cut-
off date. However, the employees claim that  New  Pension  Scheme  was  also
discriminatory as it is not at  par  with  the  Pension  Scheme  under  1972
Rules. The existing employees were put under  Tier-II  of  the  New  Pension
Scheme and the employer's contribution was not available to  them.  Further,
the New Pension Scheme did not include any family pension, medical  benefits
and death gratuity.


Present Appellant in SLP No.19102/2012, Shri P.N. Mishra had  filed  a  Writ
petition in the Jharkhand High Court seeking writ of  mandamus  against  the
Government to  implement  the  Pension  Scheme  under  1972  Rules  for  the
employees of the Jawahar Navodaya Vidyalaya  on  the  grounds  of  arbitrary
discrimination against them vis--vis employees of  the  Kendriya  Vidyalaya
and other educational institution although  run  by  autonomous  bodies  but
very  much  under  the  aegis  of  the  HRD  ministry  whose  employees  are
benefitted by the Pension Scheme. The  Petitioner  therein  also  challenged
the New Pension Scheme notified  in  2008  being  discriminatory  and  ultra
vires of Articles 14, 19 and 21 of  the  Constitution  of  India.  The  High
Court found that there existed no pension scheme for the employees  of  JNVS
till the 2004 Scheme which was notified in  2008.  It  noted  that  the  New
Pension Scheme which was formulated by the Government in 2004  and  notified
in 2008 was in response to the demands of the employees  of  JNVS  and  that
cut-off date was the domain of the employer. It relied on  the  judgment  in
All India Reserve Bank Retired Officers'  Association  v.  Reserve  Bank  of
India, (1992) Suppl. (1) SCC 664, 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.



Following issues are involved in these matters for our consideration:

Whether O.M. dated 1-05-1987 applies to the employees of the NVS?
Whether the financial implication can be  valid  consideration  for  denying
pension?
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?
Whether the New Pension Scheme, 2004 is arbitrary or discriminatory?

Learned counsel appearing for the petitioners/appellants have emphasized  on
the  applicability  of  the  Office  Memorandum  of  the  Department  Public
Grievances and Pensions  Department  of  Pensions  and  Pensioners'  Welfare
dated 01-05-1987 to the employees of JNVS just like it was  applied  to  the
KVS. However, the learned Additional Solicitor General has  lucidly  brought
out the difference between the position of  employees  of  the  organization
with respect to said O.M. She has pointed out that for  application  of  the
said O.M., following three  pre-requisites  were  to  be  fulfilled  by  the
employees :

They must be Central Government employees,
They must be in service on 01-01-1986, and
They must be CPF beneficiaries as on 01-01-1986.

The Respondents have contended that the JNVS was not  in  existence  at  the
time of cut-off date applicable under the O.M.  dated  01.05.1987  and  also
that the employees of the JNVS cannot claim as of a right to be governed  by
the Central Civil Service (Pension) Rules, 1972 as they  are  not  employees
of the Central Government.


It is undisputed fact that the Navodaya  Vidyalaya  Samiti  was  established
and registered under the Societies Registration Act,  1860  only  on  28-02-
1986, so its employees cannot be in service as on  01-01-1986.  Thus,  while
first condition is disputed, the second condition is clearly not  fulfilled.
In contrast, the KVS was established in 1965. Therefore, we  find  merit  in
the argument of the learned Additional Solicitor General that the said  O.M.
cannot apply to the NVS employees.

Further,   it   was   submitted   by   the   learned   counsel    for    the
petitioners/appellants that the only reason for  not  providing  pension  as
per 1972 Rules has been the financial implications  which  becomes  apparent
from the letter  of  the  Finance  Ministry  dated  05-02-1999  to  the  HRD
Ministry  in  which  the  Finance  Minister  has  clearly  pointed  out  the
excessive liability that the Government would  have  to  incur  in  case  it
extends pension scheme to the JNVS employees and suggested that  an  annuity
scheme may be formulated with LIC by employees  contribution  alone  without
any liability of the Government. Also the  Finance  Ministry  has  expressed
its concern that extending such pension benefit on  the  grounds  of  parity
would mean that all the autonomous bodies under Government  of  India  would
make similar demands and that would be financially infeasible.


In   support   of   these   submissions,    learned    counsel    for    the
petitioners/appellants has cited  plethora of judgments wherein it was  held
that 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.


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 the efficiency and functioning of the organization. She  also  relied
on A.K. Bindal v. Union of India, (2003) 5 SCC 163, which also  states  that
the financial capacity is a relevant consideration in deciding  revision  of
pay scales. Therefore, the learned Additional  Solicitor  General  concluded
that financial capacity of the employer is an important factor which  cannot
be ignored while fixing the wage structure and  thus,  the  demands  of  the
employees of NVS are not founded on sound principle of law.


The learned counsel for the petitioners/appellants have  argued  that  Right
to equality is  guaranteed  under  Article  14  of  the  Constitution  which
incorporates the principle of equal pay for equal work  and  same  has  been
violated in present case by granting pension under  1972  Pension  Rules  to
the employees of some autonomous educational institutions  like  KVS,  NCERT
etc. and denying that benefit to the employees of NVS. The  learned  Counsel
pointed out that  parity  in  pay  and  pension  be  granted,  particularly,
between the employees of  NVS  and  the  employees  of  KVS  as  both  these
institutions  are  run  by  autonomous  bodies  registered  under  Societies
Registration Act, 1860 under the aegis of the  Ministry  of  Human  Resource
Development, Government of India and are fully funded by the  Government  of
India. Also, that the working hours of the  teachers  in  NVS  are  more  as
compared to the KVS and  the  JNVS  being  fully  residential  schools,  the
burden on teaching  and  non-teaching  staff  is  much  more  than  Kendriya
Vidalayas which are only day schools. The learned  Counsel  has  brought  to
the fore recommendations of various committees and  authorities  which  have
supported the cause of the Petitioners, namely, Review Committee set  up  by
the Ministry of HRD under Chairmanship of Shri  Y.N.  Chaturvedi  to  review
the Management Structure and Operating Mechanism of JNVS,  154th  report  of
the Department Related Parliamentary  Committee on functioning of JNV  which
was laid before Lok Sabha  on  02-03-2005,  Cabinet  Note  prepared  by  the
Ministry of HRD in March 2006 which specifically pointed  out  the  need  to
extend the Pension Scheme under 1972 Rules to the employees of  JNVS,  198th
Report of the Department Related Parliamentary Committee submitted on 17-08-
2007 which strongly recommended for implementing the Pension Scheme  to  the
employees of JNVS.  Even the Ministry of Labour and Employment by  its  O.M.
dated 07-09-2006 to the Ministry of HRD, recommended  extension  of  Pension
Scheme to NVS.


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.


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. Further, in  A.K.  Bindal  (supra),  this  Court  has  held  that
employees of Government  companies  are  not  Government  servants.  It  is,
therefore,   submitted   on   behalf   of   the   respondents    that    the
petitioners/appellants  are  employees  of  the  autonomous  body  that   is
Navodaya Vidyalaya Samiti which has all the control on the organization.

It may be expedient to note what this Court observed in  the  case  of  S.C.
Chandra (supra):

"...fixing of pay scales by the Courts by applying the  principle  of  equal
pay for equal work upsets the high constitutional  principle  of  separation
of powers between three organs of the state. Realizing  this  Court  has  in
recent years avoided applying the principle of equal  pay  for  equal  work,
unless there is complete and wholesome identity between the two groups  (and
there too the matter should be sent for examination by an  expert  committee
appointed by the Government instead of  the  Court  itself  granting  higher
pay)"

Further, the learned counsel appearing for  the  Appellants  have  contended
that the pension is not a bounty given to the employee at the  will  of  the
Government but a valuable right vested  in  the  employee  and  a  right  to
receive pension is a "property" under Article  31  of  the  Constitution  of
India as was held in State of Kerala v. M.  Padmanabhan  Iyer,  (1985)  1SCC
429. Further, the learned Counsel for  the  Appellants  submitted  that  the
pension is that part of the salary which  was  not  given  to  the  employee
during his/her service but was kept for  payment  as  pension,  so  now  the
employer cannot deny the employees what is  rightfully  employees'  because,
if there was no pension to be paid, employees would have had higher  salary.


Learned Additional  Solicitor  General  has  submitted  that  the  right  to
pension is not an inherent right of every employee but  it  flows  from  the
rules of the Government. If the employee is entitled to pension as  per  the
rules of the Government, his/her pension cannot  be  withheld  by  a  simple
executive order (Deokinandan Prasad v. State of Bihar & Ors.  (1971)  2  SCC
330). Similarly, it is submitted that if the employee  is  not  entitled  to
the pension as per the rules governing his/her  service  conditions,  he/she
cannot claim it as of right inherent to the employment.


Further, the Counsel for the  appellants'  argument  regarding  the  pension
being part of the salary is accepted as the principle governing pension  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.


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.

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 introduction of new  scheme  of  pension  will  be  done
considering all the relevant factors including financial  viability  of  the
same. No interference is  warranted  unless  there  is  gross  injustice  is
perpetrated. The Appellants have  failed  to  prove  any  arbitrariness  and
discrimination with respect to the New Pension Scheme.


In the light of  the  discussion  in  the  foregoing  paragraphs,  the  writ
petitions and the appeal are also dismissed.  However,  there  shall  be  no
order as to costs.



....................................J.
(Anil R. Dave)



....................................J.
(Vikramajit Sen)




....................................J.
                                                          (Pinaki Chandra
Ghose)
New Delhi;
January  20, 2015.

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