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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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