Rajiv Raizada vs Union Of India

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Del) 2102

IN THE HIGH COURT OF DELHI AT NEW DELHI
V. Kameswar Rao, J.
Rajiv Raizada - Appellant
Versus
Union Of India & Ors. - Respondents
W.P. (C) No. 6747 of 2014, 8601 of 2010, 3426 of 2012; C.M. No. 50302 of 2019, 29745 of 2020, 2155 of 2021, 40597 of 2019, 7147 of 2020, 52917 of 2019, 3415 of 2021
Decided On : 05-07-2021

Advocates appeared:
R.K. Saini, Advocate, Ankit Singh, Advocate, Anil Soni, Advocate, L.R. Khatana, Advocate, Paritosh Budhiraja, Advocate, Dev P Bhardwaj, Advocate, Jatin Teotia, Advocate, Kripa Shankar Prasad, Advocate, Ritu Rajkumari, Advocate, Ekta Rani, Advocate

Headnote:
The petitioners, employees of Export Inspection Council of India (EIC), sought to change over from the Contributory Provident Fund (CPF) to the General Provident Fund-cum-Pension Scheme (Pension Scheme). The EIC had adopted the CCS (Pension) Rules, 1972 and GPF (Central Services) Rules 1960 vide notification dated October 24, 1982 framing the Pension and General Provident Fund Rules, 1981 and called options from the employees to shift from CPF Scheme to GPF Scheme, which option was exercised by the petitioners for their continuance in CPF Scheme. Subsequently, a Circular dated July 02, 1987 was issued by the respondent No.2 calling for a fresh / explicit option to continue in CPF Scheme with deeming effect that in the absence of any express option for changing over to CPF Scheme, the employee shall be changed over to Pension Scheme. The petitioners contended that they were deemed to be in the Pension Scheme as per the Circular dated July 02, 1987 since an express option had to be exercised for continuing in the CPF Scheme and because of deeming provision to switchover to Pension Scheme. The respondents contended that the petitioners had specifically exercised their option on March 29, 1983 to continue under the CPF benefits and it was only when the date of superannuation of the petitioner, December 31, 2011, drew nearer that he started demanding pension.
Fact of the Case:

The petitioners, employees of Export Inspection Council of India (EIC), sought to change over from the Contributory Provident Fund (CPF) to the General Provident Fund-cum-Pension Scheme (Pension Scheme). The EIC had adopted the CCS (Pension) Rules, 1972 and GPF (Central Services) Rules 1960 vide notification dated October 24, 1982 framing the Pension and General Provident Fund Rules, 1981 and called options from the employees to shift from CPF Scheme to GPF Scheme, which option was exercised by the petitioners for their continuance in CPF Scheme. Subsequently, a Circular dated July 02, 1987 was issued by the respondent No.2 calling for a fresh / explicit option to continue in CPF Scheme with deeming effect that in the absence of any express option for changing over to CPF Scheme, the employee shall be changed over to Pension Scheme. The petitioners contended that they were deemed to be in the Pension Scheme as per the Circular dated July 02, 1987 since an express option had to be exercised for continuing in the CPF Scheme and because of deeming provision to switchover to Pension Scheme. The respondents contended that the petitioners had specifically exercised their option on March 29, 1983 to continue under the CPF benefits and it was only when the date of superannuation of the petitioner, December 31, 2011, drew nearer that he started demanding pension.
Finding of the Court:

The Court held that the Circular dated July 02, 1987 had deeming effect that in the eventuality, an express option is not exercised by an employee for his continuance in the CPF Scheme then he is deemed to have switched over to the Pension Scheme. Nothing has been placed on record that the petitioners have pursuant to Circular dated July 02, 1987 had opted to continue in CPF Scheme. Even the subsequent Circular of 1989 calling for options to switch over to Pension Scheme would not make any difference in the case of the petitioners, as the petitioners had not opted to continue under the CPF Scheme in terms of Circular dated July 02, 1987 and would be deemed to be governed under the Pension Scheme. It appears that the Circular of 1989 had been issued to enable those employees, who, under the Circular dated July 02, 1987, had expressly desired to continue under the CPF Scheme. The Court further held that the petitioners need to be allowed to change over from CPF Scheme to Pension Scheme. The issue is no more res integra in view of the judgment of this Court in Dr. R.N. Virmani and Ors. (supra) and Smt. Shashi Kiran and Ors. (supra) wherein the Division Bench has upheld the judgment of the learned Single Judge in Dr. R.N. Virmani and Ors. (supra) and also in view of recent judgment of the Bombay High Court in the case of Amita Ajit Desai & Ors. (supra). The Court held that the petitioners shall be deemed to be covered under the Pension Scheme on the date of their retirement. They are entitled to the benefits thereof. The petitioners shall refund the employer’s contribution of CPF received by them with interest @ 8% per annum within eight weeks from today to the respondents. The respondents shall compute the pension and arrears, if any, after making adjustment which shall be paid to them within eight weeks thereafter but without any interest.
Issues: Whether the petitioners are entitled to change over from CPF to Pension Scheme.
Ratio Decidendi: The Court held that the Circular dated July 02, 1987 had deeming effect that in the eventuality, an express option is not exercised by an employee for his continuance in the CPF Scheme then he is deemed to have switched over to the Pension Scheme. The Court further held that the petitioners need to be allowed to change over from CPF Scheme to Pension Scheme. The issue is no more res integra in view of the judgment of this Court in Dr. R.N. Virmani and Ors. (supra) and Smt. Shashi Kiran and Ors. (supra) wherein the Division Bench has upheld the judgment of the learned Single Judge in Dr. R.N. Virmani and Ors. (supra) and also in view of recent judgment of the Bombay High Court in the case of Amita Ajit Desai & Ors. (supra).
Final Decision: The writ petitions were allowed. The impugned orders in these petitions were quashed. It was held that the petitioners shall be deemed to be covered under the Pension Scheme on the date of their retirement. They are entitled to the benefits thereof. The petitioners shall refund the employer’s contribution of CPF received by them with interest @ 8% per annum within eight weeks from today to the respondents. The respondents shall compute the pension and arrears, if any, after making adjustment which shall be paid to them within eight weeks thereafter but without any interest.

JUDGMENT

V. Kameswar Rao, J. - C M. No. 2155/2021 in W.P.(C) 6747/2014

This application has been filed by the respondent No.2 herein for brining on record additional documents. For the reasons stated in the application, the additional documents are taken on record.

Application is allowed and disposed of.

CM. No. 3415/2021 in W.P.(C) 3426/2012

This application has been filed by the respondent Nos.2 & 3 herein for brining on record additional documents. For the reasons stated in the application, the additional documents are taken on record.

Application is allowed and disposed of.

W.P.(C) 6747/2014

W.P.(C) 8601/2010

W.P.(C) 3426/2012

1. Though, the writ petitions were heard on different dates, as identical issue arises for consideration, they are being disposed of by this common order, by referring to the facts of each writ petition separately.

2. The petitioners are employees of the Export Inspection Council of India ('EIC', for short), a statutory organisation under the Department of Commerce, Ministry of Commerce & Industry, duly arrayed as a respondent in all three Writ Petitions. EIC was established under Section 3 of the Export (Quality Control and Inspection) Act, 1963 to ensure sound development of export trade in India through quality control and inspection prior to shipment/export and for matters connected therewith. For furtherance of the objectives of the Act, five Export Inspection Agencies ('EIA', for short) were also established at Bombay, Calcutta, Cochin, Delhi and Madras in the year 1966. EIAs are under direct technical and administrative control of EIC. Employees of EIC & EIAs are liable to serve in both EIC and EIAs. The present writ petitions revolve around the issue of whether or not the petitioners are entitled to change over from the Contributory Provident Fund ('CPF', for short) to the General Provident Fund-cumPension Scheme ('Pension Scheme', for short).

W.P.(C) 6747/2014

3. The present petition has been filed with the following prayers:

"In the above facts and circumstances of the case, it is most respectfully prayed that this Hon'ble Court may be pleased to issue: -

(a) A writ of certiorari calling for the records of the case for perusal;

(b) A writ of certiorari quashing letter dated 07.11.2013 of Respondent EIC whereby the representation of the petitioner was rejected, being illegal, arbitrary, discriminatory and against the principles of natural justice, equity and good conscience;

(c) A writ of Mandamus, commanding the respondents to treat the petitioner as having been automatically covered by the Pension Scheme and GPF Scheme, once, the cut-off date of 31.10.1987, was crossed and settle the case of the petitioner accordingly.

d) A writ of Mandamus commanding the Respondents to pay cost of this petition to the petitioner.

e) Any other writ or orders as this Hon'ble Court may deem fit in the facts and circumstances of this case and in the interest of justice."

4. It is contended by Mr. R.K. Saini, learned counsel appearing on behalf of the petitioner, that the petitioner is aggrieved by the letter dated November 07, 2013 of EIC, the respondent no. 2 herein, whereby the representation of the petitioner for treating him as having automatically covered by the Pension Scheme in view of the circular dated July 02, 1987 issued by the EIC, was rejected.

5. Petitioner initially joined the services of EIA Bombay on November 15, 1974 as Assistant Director (Tech) and since January 2010 is working as an Additional Director in EIC.

6. It is the case of the petitioner that since inception of EIC and EIAs and up to October 23, 1981, the employees of EIC and EIAs were governed by the CPF Scheme.

7. It is averred by the petitioner that, vide EIC Circular No. EIC/D(Q/C)/56/81 dated October 16, 1981, respondent no.2 informed the employees of EIC and EIAs of the intended introduction of the Pension Scheme for their benefits through t