# Dr. Meenakshi Agarwal & Ors v. Union of India & Ors

- **Citation:** (2024) 4 ILRA 537
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-17
- **Case number:** Writ A No. 62165 of 2015
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-meenakshi-agarwal-ors-v-union-of-india-ors-51830
- **Pages:** 11

## Headnote

A. Service Law - Pension - C.P.F. Scheme
and G.P.F. cum Pension Scheme (Old
Pension Scheme) - Retirement from the
post of Faculty Members of Kendriya Hindi
Sansthan, Agra - Old Pension Scheme
claimed - Entitlement - All the employees
under the CPF Scheme were directed to be
538 INDIAN LAW REPORTS ALLAHABAD SERIES
govern under the GPF Scheme except
those who consciously opted for CPF
Scheme
before
the
cut
off
dated
30.09.1987 - Effect - Held, all such
employees who did not opt for a change
prior to 1987, should be taken to have
become member of GPF Scheme on
principle of 'deemed switch over' - Shashi
Kiran's case relied U.P.on - Central
Government were not justified in refusing
to consider the claim in the year 1999 by
writing back to the Sansthan that no such
scheme to switch over was available any
more - High Court found good reason to
give benefit of Old Pension Scheme, and
directed
the
respondent
to
convert
petitioners' C.P.F. scheme to G.P.F. cum
Pension scheme. (Para 13, 14, 15 and 16)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

4 All. Dr. Meenakshi Agarwal & Ors. Vs. Union of India & Ors.
537
technically dead, now has the imprimatur
of the Supreme Court in Principal, Abhay
Nandan Inter College. We do not wish to
go into that question, but all that we say is
that any process of recruitment commenced
before 08.09.2010 would have to be carried
to its logical conclusion, irrespective of the
policy decision taken on 08.09.2010, the
GO dated 06.01.2011 or the ultimate
amendment made to Regulation 101 with
effect
from
24.04.2014.
Here,
the
advertisement was admittedly issued and
the process of recruitment commenced as
per the then prevalent Regulation 101 by
the Management with the publication of the
advertisement
on
09.01.2009
and
10.01.2009. The process of selection was
completed on 27.02.2009 and letters of
appointment were issued to the petitioners
on 01.03.2009, the date on which they
joined their duties also with the Institution.
This then being the calendar of events
governing the rights of the petitioners, it is
very difficult to accept the contention of the
respondents,
howsoever
stretched,
to
uphold
their
policy
decision,
now
embodied in Regulation 101, to undo a
recruitment
process
commenced
well
before the policy decision was taken on
08.09.2010.
There
is
no
way
the
recruitment process, commenced much
earlier than the change of policy and much
before the amendment to Regulation 101
brought about on 24.04.2014, can be
subjected to the changed law or policy and
held invalid.

44. In the result, this writ petition
succeeds
and
stands
allowed.
The
impugned order dated 15.09.2015 passed
by the Regional Level Committee, Kanpur
Region, Kanpur is hereby quashed. A
mandamus is issued to the Joint Director of
Education, Kanpur Region, Kanpur or the
Regional Level Committee, whosoever be
the authority competent as per assignment
of business in the Department of Secondary
Education to pass fresh orders considering
the grant of financial sanction to the
petitioners' appointment, bearing in mind
the directions in this judgment. Necessary
orders shall be passed within a month of
receipt of a copy of this judgment by the
Joint
Director
of
Education,
Kanpur
Region, Kanpur.

45. There shall be no order as to costs.

46. The Registrar (Compliance) is
directed to communicate this order to the
Joint
Director
of
Education,
Kanpur
Region, Kanpur.
----------
(2024) 4 ILRA 537
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.01.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ A No. 62165 of 2015

Dr. Meenakshi Agarwal & Ors.
 ...Petitioners
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashish Mishra

Counsel for the Respondents:
A.S.G.I., Sri Bal Mukund, C.S.C., Sri Gyan
Prakash

A. Service Law - Pension - C.P.F. Scheme
and G.P.F. cum Pension Scheme (Old
Pension Scheme) - Retirement from the
post of Faculty Members of Kendriya Hindi
Sansthan, Agra - Old Pension Scheme
claimed - Entitlement - All the employees
under the CPF Scheme were directed to be
538 INDIAN LAW REPORTS ALLAHABAD SERIES
govern under the GPF Scheme except
those who consciously opted for CPF
Scheme
before
the
cut
off
dated
30.09.1987 - Effect - Held, all such
employees who did not opt for a change
prior to 1987, should be taken to have
become member of GPF Scheme on
principle of 'deemed switch over' - Shashi
Kiran's case relied U.P.on - Central
Government were not justified in refusing
to consider the claim in the year 1999 by
writing back to the Sansthan that no such
scheme to switch over was available any
more - High Court found good reason to
give benefit of Old Pension Scheme, and
directed
the
respondent
to
convert
petitioners' C.P.F. scheme to G.P.F. cum
Pension scheme. (Para 13, 14, 15 and 16)

Writ petition allowed. (E-1)

List of Cases cited:

1. Shashi Kiran Vs U.O.I.; 2016 SCC Online 4819

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Ashish Mishra, learned
counsel for the petitioners and Sri Bal
Mukund, learned counsel appearing for all
the respondents.

2. Petitioners before this Court are
erstwhile faculty members of Kendriya
Hindi
Sansthan,
Agra,
a
Central
Government Organisation controlled and
funded by it through its own sets of rules
and by-laws framed with the approval of
Government of India. While petitioner no.1
had already retired by the time present
petition was presented before this Court on
30.11.2015, the other two petitioners were
working
and
ultimately
retired
on
30.06.2019, during pendency of the writ
petition.

3. All the three petitioners claim a writ
in the nature of mandamus to command the
respondents including Union of India to
award them benefit of the Old Pension
Scheme popularly known as G.P.F. Scheme
by permitting them to opt for G.P.F. cum
Pension Scheme (In short G.P.F. Scheme)
in view of the subsequent orders issued by
the Delhi University with the consent of
Central
Government,
to
permit
the
employees having C.P.F. Scheme to switch
over to G.P.F. Scheme as late as in the year
2003. During the pendency of this petition,
a judgment of Supreme Court in the case of
Shashi Kiran versus Union of India: 2016
SCC Online 4819 intervened as per which
even those employees of such institutions
who had already opted for C.P.F. Scheme
and were not permitted to switch to G.P.F.
Scheme on the principle that they could not
gaze into the crystal ball the benefits of the
Old Pension Scheme, and to speculate
whether the existing state of affairs would
continue especially the rate of interest that
one would get on the accumulated fund as
compared to benefits given to the pension
optees at the stage of superannuation.
Petitioner herein claim to be the last
category of petitioners as came to be
mentioned in paragraph 23 of the judgment
who had opted for C.P.F. benefits.

4. It is argued on behalf of the
petitioners that petitioners' application
remained pending consideration before the
authorities since 2013 i.e. prior to their date
of superannuation and even if the higher
authorities of the Government of India
refused to consider that application on the
plea that there was no further option
available in the year 1999, after 31.12.2003
now they can be benefited under the
judgment of the Supreme Court as they
were the third category of the petitioners
who were similarly circumstanced.

5. Per contra, learned counsel for the
respondents, Sri Bal Mukund has argued,
4 All. Dr. Meenakshi Agarwal & Ors. Vs. Union of India & Ors.
539
firstly that petitioners having attained the
age of superannuation were no more the
employees of the institute and, therefore,
there is no question of giving them any
option to switch over as this option could
be exercised by working employees only;
and secondly act and conduct in opting for
C.P.F. scheme was a result of a conscious
decision by the petitioners and they having
not chosen to opt for C.P.F. Scheme prior
to 30.09.1989 when the last opportunity
was given by the Central Government,
there was no question now to reopen the
option in favour of retired employees.
Meeting the judgment of the Supreme
Court in the case of Shashi Kiran (supra),
Sri Bal Mukund has argued that judgment
would operate in personem and not in rem.
He has argued that judgment having been
delivered in particular cases that were
being pursued in the Delhi High Court and
the Supreme Court extended the benefit
even to the third category of such
employees approaching it and these
appeals arose out of the said judgment of
the Delhi High Court, whereas in the
present case petitioners have chosen to
approach this Court much after the expiry
of last date to exercise option in the year
2003 made by the Delhi University. He
submits, as far as petitioner no.1 is
concerned, he himself had opted to retire
and take post retirement benefit as per the
C.P.F. Scheme even prior to filing of his
present petition.Sri Bal Mukund has also
not denied the resolution of Board of
Governors on date as was in the year 1999
making recommendations for permitting
its employees another chance to switch
over to C.P.F. Scheme.

6. Meeting the above three arguments
as advanced by learned counsel Sri Bal
Mukund appearing for the respondents, Sri
Ashish Mishra has submitted in rejoinder
that once the Government gave the above
option as late as 2003, it could not be said
that since petitioners had already exercised
the option, they could not switch over. He
submitted that the principle upon which the
judgment has been delivered is equally
applicable to the present case. It is also
submitted that petitioners had moved their
application to switch over in the year 1999
itself when all the petitioners were in
service and, therefore, their right to claim
benefit continued even if they had retired.

7. Meeting the argument further,
learned
Advocate
submits
that
the
respondents
themselves
made
the
petitioners to retire under the C.P.F.
scheme with a rider that their claim for
switching over from C.P.F. to G.P.F.
scheme would depend upon the outcome of
the pending litigation before this Court vide
letters dated 12.07.2019 and 20.08.2019
brought on record as annexure to the
supplementary rejoinder affidavit.

8. To the argument of learned counsel
for the respondent on the point of letter of
the Additional Secretary, Ministry of
Human
Affairs
and
Development
(Secondary
and
Higher
Education
Department) dated 18.11.1999, it is argued
that this internal communication is between
the
first
respondent
and
the
third
respondent and it refuses to consider the
claim on the ground that there was no
proposal, whereas there was a proposal to
exercise open upto the year 2003 and,
therefore, this letter has no significance and
relevance.

9. Still further it is argued that in view
of the judgment of the Supreme Court in
Shashi Kiran's case, benefit would be
applicable
to
the
present
case
and
petitioners cannot be denied benefit of such
540 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment which has been delivered during
pendency of the writ petition.

10. Having heard learned counsel for
the respective parties, perused the records
and judgment of the Supreme Court cited
before this Court, firstly I find that the
petitioners cannot be said to have failed to
exercise option by the last day i.e.
31.12.2003 wishing to switch over from
C.P.F. to G.P.F. as they had applied way
back in 1999. The admitted position
between the parties is that petitioners had
admittedly exercised their option to remain
under C.P.F. scheme as much before their
retirement they had applied for switching
over. The third respondent though made
recommendations in their favour but the
first respondent refused to entertain such
application on the plea that there was no
such option open in the year 1999. It is also
an admitted position that the respondents
themselves observed in the letter of the
Deputy Registrar dated 12.07.2019 and
20.08.2019 that their claim from C.P.F. to
G.P.F. scheme would depend upon the
outcome of the pending litigation but of
course there is no such letter in respect of
petitioner no.1, it appears since he had
already retired at the time of filing of this
writ petition.

11. Under the above facts and
circumstances in my considered view, the
letter of the Union of India dated
16.11.1999
becomes
irrelevant
and
insignificant as the option to switch over
had remain opened till 31.12.2003 as has
come to be so recorded in the judgment of
the Supreme Court in Shashi Kiran (supra)
vide its paragraph 29.

12. Coming to the judgment cited, I
find that of the three batches in terms of
category of cases namely (i) R.N. Virmani
Batch of cases, (ii) N.C. Bakshi batch of
cases (iii) Shashi Kiran Batch of cases, the
learned Single Judge of Delhi High Court
allowed both Virmani Batch of cases and
N.C. Batch of cases giving benefit of the
office memorandum to the former and to
the later on the ground that former had not
opted but continued with contribution
towards C.P.F. Scheme as if tacitly opted
for C.P.F. by their conduct and latter ones,
who though had consciously opted for
C.P.F. Scheme but after the last cut off date
30.09.1987. Both these batches were given
benefit of the G.P.F. cum Pension Scheme
on the principle that last cut off date
30.09.1987 would not come in their way of
opting for old G.P.F. Scheme as exception
was to opt for C.P.F. Scheme. However, in
respect of the Shashi Kiran Batch of cases
the learned Single Judge refused the relief
on the ground that they had exercised their
option prior to the last cut off and that too
cautiously and therefore, there was no room
available to them for any "come back
situation". Thus the learned Single Judge of
the Delhi High Court classified the
otherwise
homogeneous
group
of
employees seeking pension into two
categories. Upon a Letters Patent Appeal
being filed, while the Division Bench of the
Delhi High Court upheld the judgment of
the learned Single Judge in respect of
Virmani Batch and N.C. Bakshi Batch
dismissing the appeal of the University of
Delhi, reversed the judgment of the learned
Single Judge in respect of Shashi Kiran
Batch of cases by giving them relief on the
principle that if the relief could have been
granted to those 2469 employees who had
consciously opted for C.P.F. Scheme may
be after the last cut off date, the petitioners
appellant of the Shashi Kiran Batch should
not have been discriminated against and as
they were 75 in numbers. So, even though
they had applied to the High Court in the
4 All. Dr. Meenakshi Agarwal & Ors. Vs. Union of India & Ors.
541
year 2010, the relief to switch over to
G.P.F. Scheme/ OPS was granted. Supreme
Court of India upon Special Leave Petition
filed by the University of Delhi affirmed
the judgment of the Division Bench of the
Delhi High Court by making observations
in their favour after discussing the legal
aspects involved therein vide paragraph
nos. 22 to 37 that are reproduced
hereunder:

"22. We now turn to Shashi Kiran
batch of cases.

23. As indicated by the University
in its affidavit filed after the Order dated
02.03.2020 was passed by this Court, 2611
employees had opted to be under CPF
Scheme by the cut-off date, i.e. by
30.09.1987. Additionally, 626 employees
exercised the option to be under CPF after
the original cut-off, but within initial two
extensions granted by the University. Thus,
as against the entire body of employees of
the
University,
3237
(2611+626)
employees had exercised the option to be
under CPF. Out of these 3237 employees,
by virtue of further extensions granted by
the University, about 2469 employees
exercised the reverse option and opted to
?come over? to GPF, leaving only 768
(3237-2469) employees to be under CPF.
The answers to queries ?d? and ?e? given
by the University in its affidavit indicate
that the number of employees in CPF
Scheme was 86 while the petitioners in
Shashi Kiran batch were 75. We are, thus,
concerned with 75 original petitioners in
Shashi Kiran batch of cases.

24. In Krishena Kumar, the
distinction between the Provident Fund
Scheme and the Pension Scheme was
considered by the Constitution Bench of
this Court. In that case, the employees who
had joined the service on or after
01.04.1957
were
to
get
covered
automatically by the Pension Scheme and
insofar as employees who were already in
service on 01.04.1957, they were given an
option either to retain the Provident Fund
benefits or to switchover to the pensionary
benefits.
About
12
extensions
were
thereafter granted so that the options could
be exercised by the employees within the
extended time. Those who had chosen not
to exercise such option, were before this
Court. The basic nature of the Scheme was
discussed in paragraph 7 of the decision as
under:-

"7. We may now examine these
options. The Railway Board's letter No.
F(E) 50-RTI/6 dated November 16, 1957
introduced the pension scheme for railway
servants. It said that the President had
been pleased to decide that the pension
rules, as liberalised vide Railway Board?s
Memo No. E-48 OPC-208 dated July 8,
1950 as amended or clarified from time to
time should apply ?(a) to all Railway
servants who entered service on or after
issue of that letter and (b) to all nonpensionable railway servants who were in
service on April 1, 1957 or have joined
railway service between that date and the
date of issue of the order?. The Railway
servants referred to in para (b) were
required to exercise an unconditional and
unambiguous option on the prescribed form
on or before March 31, 1958 electing for
the pensionary benefits or retaining their
existing retirement benefits under the State
Railway Provident Fund Rules. It further
said that any such employee from whom an
option form prescribed for the employee?s
option was not received within the above
time limit or whose option was incomplete
or conditional or ambiguous shall be
deemed to have opted for the pensionary
benefits and if any such employee had died
by that date or on or after April 1, 1957
without
exercising
option
for
the
542 INDIAN LAW REPORTS ALLAHABAD SERIES
pensionary scheme, his dues would be paid
on the provident fund system. The period of
validity of this option was first extended up
to June 30, 1958, December 31, 1958,
March 31, 1959 and lastly up to September
30, 1959. There could, therefore, be no
doubt that those who did not opt for the
pension scheme had ample opportunity to
choose between the two."

25. Reliance was placed by the
petitioners before this Court on the
decision in D.S. Nakara vs. Union of India.
Paragraphs 16, 29 and 30 of the decision
in Krishena Kumar dealt with the issue as
under:-

"16. As the basis or justification
for striking or reading down paragraph 3.1
on Nakara ratio, it is urged that all the
Railway employees numbering about 22
lakhs comprising 16,22,000 in service and
about 6 lakhs pensioners constitute one
family and must be treated as one class as
the government?s obligation to look after
the retired Railway employees both under
the pension scheme and the provident fund
scheme being the same, they could not be
treated
differently.
Any
differential
treatment will be discriminatory and
violative of Article 14 of the Constitution of
India. In Nakara cas6 the date arbitrarily
chosen was struck down and as a result the
revised formula for computing pension was
made
applicable
to
all
the
retired
pensioners. The same principle, it is urged,
has to be extended to the Provident Fund
retirees also otherwise there would be
discrimination. It is stated that though at
the time of choosing between Provident
Fund and Pension Scheme both the
alternatives appeared to be more or less
equal and the retired provident funders
took their lump sum yet subsequently stage
by stage the pensioners? benefits were
increased in such ways and to such extent
that
it
became
more
and
more
discriminatory
against
the
provident
funders old and new. It was because of this
discrimination that successive options were
given by the Railway Board for the
provident funders to become pensioners.
Hence the submission that this limitation
must go, and all the provident funders must
be deemed to have become pensioners
subject
to
the
condition
that
the
government contribution received by them
along with interest thereon is refunded or
adjusted.
Obviously
this
gives
no
importance
to
the
condition
in
the
notifications that option once exercised
shall be final and binding and to the fact
that in each option a cut-off date was there
related to the purpose of giving that option.
*** *** ***

29. The court in Nakara was not
satisfied with the explanation that the
legislation had defined the class with
clarity and precision and it would not be
the function of this Court to enlarge the
class. The court held in paragraph 65 of
the report : (SCC pp. 344-45, para 65)

"With the expanding horizons of
socio-economic
justice,
the
Socialist
Republic and Welfare State which we
endeavour to set up and largely influenced
by the fact that the old men who retired
when emoluments were comparatively low
and
are
exposed
to
vagaries
of
continuously rising prices, the falling
value of the rupee consequent upon
inflationary inputs, we are satisfied that by
introducing
an
arbitrary
eligibility
criterion :?being in service and retiring
subsequent to the specified date? for being
eligible for the liberalised pension scheme
and thereby dividing a homogeneous
class, the classification being not based on
any discernible rational principle and
having been found wholly unrelated to the
objects sought to be achieved by grant of
liberalised pension and the eligibility
4 All. Dr. Meenakshi Agarwal & Ors. Vs. Union of India & Ors.
543
criteria
devised
being
thoroughly
arbitrary, we are of the view that the
eligibility for liberalised pension scheme
of "being in service on the specified date
and retiring subsequent to that date" in
impugned memoranda, Exs. P-1 and P-2,
violates Article 14 and is unconstitutional
and is struck down. Both the memoranda
shall be enforced and implemented as
read down as under : In other words, Ex.
P- 1, the words : "that in respect of the
government servants who were in service
on March 31, 1979 and retiring from
service on or after that date"; and in Ex.
P-2, the words : ?the new rates of pension
are effective from April 1, 1979 and will
be applicable to all service officers who
became/become non- effective on or after
that date? are unconstitutional and are
struck down with this specification that
the date mentioned therein will be relevant
as being one from which the liberalised
pension scheme becomes operative to all
pensioners governed by 1972 Rules
irrespective of the date of retirement.
Omitting the unconstitutional part it is
declared that all pensioners governed by
the 1972 Rules and Army Pension
Regulations shall be entitled to pension as
computed under the liberalised pension
scheme
from
the
specified
date,
irrespective of the date of retirement.
Arrears of pension prior to the specified
date as per fresh computation is not
admissible."

30. Thus the court treated the
pension retirees only as a homogeneous
class. The PF retirees were not in mind.
The court also clearly observed that while
so reading down it was not dealing with
any fund and there was no question of the
same cake being divided amongst larger
number of the pensioners than would have
been under the notification with respect to
the specified date. All the pensioners
governed by the 1972 Rules were treated as
a class because payment of pension was a
continuing obligation on the part of the
State till the death of each of the pensioners
and, unlike the case of Contributory
Provident Fund, there was no question of a
fund in liberalising pension."

26. The distinction between two
Schemes was dealt with in Paragraph 32 of
the decision as under:-

"32. In Nakara it was never held
that both the pension retirees and the PF
retirees formed a homogeneous class and
that any further classification among them
would be violative of Article 14. On the
other hand the court clearly observed that
it was not dealing with the problem of a
'fund'.
The
Railway
Contributory
Provident Fund is by definition a fund.
Besides,
the
government's
obligation
towards an employee under CPF Scheme to
give the matching contribution begins as
soon as his account is opened and ends
with his retirement when his rights qua the
government in respect of the Provident
Fund is finally crystallized and thereafter
no statutory obligation continues. Whether
there still remained a moral obligation is a
different matter. On the other hand under
the Pension Scheme the government's
obligation does not begin until the
employee retires when only it begins and it
continues till the death of the employee.
Thus, on the retirement of an employee
government's legal obligation under the
Provident Fund account ends while under
the Pension Scheme it begins. The rules
governing the Provident Fund and its
contribution are entirely different from the
rules governing pension. It would not,
therefore, be reasonable to argue that what
is applicable to the pension retirees must
also equally be applicable to PF retirees.
This being the legal position the rights of
each
individual
PF
retiree
finally
544 INDIAN LAW REPORTS ALLAHABAD SERIES
crystallized on his retirement whereafter no
continuing obligation remained while, on
the other hand, as regard Pension
retirees, the obligation continued till their
death. The continuing obligation of the
State in respect of pension retirees is
adversely affected by fall in rupee value
and rising prices which, considering the
corpus already received by the PF retirees
they would not be so adversely affected
ipso facto. It cannot, therefore, be said
that it was the ratio decidendi in Nakara6
that the State's obligation towards its PF
retirees must be the same as that towards
the
pension
retirees.
An
imaginary
definition of obligation to include all the
government retirees in a class was not
decided and could not form the basis for
any classification for the purpose of this
case. Nakara cannot, therefore, be an
authority for this case."

27. Having observed that the
Pension Scheme and the Provident Fund
Scheme were structurally different, it was
then concluded that the retirees in both
categories did not belong to the same
class
and
that
there
was
no
discrimination.
The
challenge
was,
therefore, rejected.

28. At this stage we must also
consider that in Rajasthan Rajya Vidyut
Vitran Nigam Limited vs. Dwarka Prasad
Koolwal and others7, a Bench of two
Judges of this Court found that an
employee had no inherent right to demand
extension for exercising the switchover
option. It was observed:-

"58.
When
the
Pension
Regulations and the GPF Scheme are read
together, the necessary conclusion is that
an employee must give his option for
either continuing to be a member of the
CPF Scheme or to switch over to the
Pension and GPF Scheme. This option
had to be exercised within a period of 90
days from the cut-off date, that is, 28- 111988. But RSEB, in its wisdom, chose to
extend the time for exercising the switchover option over a period of 8 years by
giving
several
opportunities
to
the
employees through its notices. The right of
an employee to switch over was, therefore,
limited in time by the Pension and GPF
Scheme. However, administrative orders
issued by RSEB from time to time extended
the period for exercising the option. No
employee had any inherent right to either
demand an extension of the period for
exercising the switch-over option or claim
a right to exercise the switch-over option at
any time prior to his retirement, and no
such right has been shown to us."

29. Krishena Kumar was a case
where the retirees from two categories
namely Pension Fund and Provident Fund,
were taken to be distinct and different and
as such the plea on the ground of
discrimination
was
rejected.
As
the
Judgment of the Division Bench discloses,
the matter was considered by it from the
standpoint of discrimination between the
same category of persons, that is to say,
those who had opted to be under CPF. The
different groups in the same category
were:-

a) Those who had not exercised
any option but continued to make payment
of contribution towards CPF (R.K. Virmani
batch of cases).

b) Those who exercised the
option to be under CPF but the option was
exercised after the cut-off. Since the option
was exercised after the cut-off, they were
deemed to have 'come over to GPF and
were granted benefit (N.C. Bakshi batch of
cases).

c)
Those
who
consciously
exercised the option to be under CPF; but
taking advantage of further options granted
through 11 extensions to switchover, had
4 All. Dr. Meenakshi Agarwal & Ors. Vs. Union of India & Ors.
545
been allowed to 'come over' to GPF (2469
employees).

30. It was against these three sub
categories coming from the same category
of
employees
that
the
argument
of
discrimination was considered by the
Division Bench. Such was not the case in
Krishena Kumar5 or Rajasthan Rajya
Vidyut Vitran.

31. The matter was further
considered by the Division Bench in the
context of the employees of educational
institutions such as IITs, who are directly
under the Central Government, just as
the employees of the University, which is
a Central University. If the option was
allowed to be exercised by granting
extension to the employees of the other
educational institutions, the Division
Bench did not find any reason why
similar choice/option could not be given
to the employees in Shashi Kiran batch of
cases.

32. Additionally, the feature that
has
been
presented
through
the
documents which have subsequently come
on record is that even with respect to the
employees of Insurance Corporations
similar options and extensions were
granted.

33. The differential treatment
afforded to those 2469 employees as
against the employees in Shashi Kiran
batch of cases, was not founded on any
rationale. No justifiable reason was coming
forth. If those 2469 employees could be
afforded chance to exercise an option of
switchover to GPF, even though they had
consciously opted to be under CPF, on
principle of parity or equality, the case was
certainly made out.

34. We may now consider the
matter from the perspective of financial
impact if the decision of the Division
Bench is affirmed.

35. According to the notification
dated 01.05.1987, the employees joining
the service after 01.01.1986 would always
be under GPF. With respect to those who
were in service on 01.01.1986, said
employees would be deemed to have ?come
over? to GPF unless an option to continue
to be under CPF was consciously exercised
before the cut-off date. Thus, when the
Scheme was framed and was sought to be
implemented, the concerned authorities
must have taken into account the entire
magnitude
such
as,
the
number
of
employees and the likelihood of impact on
the management of the fund, so that
reasonable returns can be effected by way
of pension upon retirement of such persons.
Going by the intent of the notification,
those who were to opt for CPF, were an
exception and the general rule was that
everybody after 01.01.1986 would normally
be covered by GPF. It is in this context that
the number of original petitioners in Shashi
Kiran batch of cases has to be seen. We are
concerned with only 75 persons. On the
other hand, the bulk of people namely 2469
employees were granted the choice of
reverse switchover and they were allowed
all the benefits under GPF. It can
reasonably
be
said
that
when
the
notification dated 01.05.1987 was issued,
the authorities were conscious of the
possibility that all the employees may
'come over' to GPF. With that possibility
in mind, the fund was constituted and the
affairs were arranged. The shift of those 75
employees would not in any way affect the
strength and the character of the fund if a
direction that the entire contribution made
by the authorities be returned with
reasonable rate of interest is issued. These
75 petitioners had approached the Court in
the year 2010. At this length of time, it is
not as if any floodgates are going to open
and there will be drain on the resources of
546 INDIAN LAW REPORTS ALLAHABAD SERIES
the State. A direction can, therefore, be
issued, as was done by the learned Single
Judge in paragraph 20 of his Judgment in
R.N. Virmani batch of cases and which
aspect was mentioned in the letter dated
23.01.2017 referred to in paragraph 8
hereinabove, for recouping the contribution
under CPF with 8% simple interest per
annum.

36.
Considering
the
circumstances on record, in our view, the
decision rendered by the Division Bench
of the High Court in Shashi Kiran batch
of cases does not call for any interference
except to the extent of direction for
recouping of the contribution under CPF
with 8% simple interest per annum. It is
possible that at this length of time, some of
the employees in Shashi Kiran batch of
cases may not be interested in switchover
to GPF. But an option must be afforded to
them in such manner as the authorities
deem appropriate.

37.
All
these
appeals
are
therefore disposed of in aforestated terms,
with no order as to costs."
 (Emphasis added)

13. From the discussion as has been
held by Supreme Court dealing with the
Shashi Kiran batch of cases, it clearly
emerges out that when employees of such
institution as petitioner's institution, the
general rule was that all the employees
under the CPF Scheme were directed to be
govern under the GPF Scheme except those
who consciously opted for CPF Scheme
before the cut off dated 30.09.1987, there
arose an issue for those who switched over
from GPF to CPF Scheme, I would call it a
reverse switching and those who exercised
option for GPF scheme by administrative
order by the respective institutions after the
cut off date. The ratio of the judgment in
Shashi Kiran's case (Supra) is, switching
over to GPF or not, all those in CPF
Scheme became member of GPF Scheme
automatically and so all such employees
who did not opt for a change prior to 1987,
should be taken to have become member of
GPF Scheme on principle of 'deemed
switch over' a fiction created by asking for
option to remain in CPF Scheme. Now it
has to be seen as to whether this fiction of
'deemed switch over' shall apply to the case
in hand. Now in order to find answer to the
above question it is to be seen what options
were available to the petitioners in their
institutions and whether petitioners had
ever opted for CPF Scheme before or after
cut off date i.e. 13.09.1987. If no options
were available then deeming fiction would
apply as there was no option to go for GPF,
and instead, it was a reverse option that was
made available. All those were made to be
governed under 1972 rules irrespective of
the date of retirement. The Court also
considered the aspect of consistent fall in
rupee value and the rates of interest upon a
corpus that may be received by a retired
employee under the C.P.F. scheme. The
judgment of the Division Bench since has
been upheld by the Supreme Court I find
the principle of crystal ball emerging
through the judgment at that point of time
to be very genuine principle to make this
benefit available to all the employees.
Petitioners before this Court are only three
in numbers and while two retired during
pendency of this petition, one had already
retired on the date of presentation of this
writ petition. Thus two petitioners were in
service when the judgment of the Supreme
Court had intervened. The principle upon
which Shashi Kiran batch has been given
benefit to switch over from C.P.F. scheme
to G.P.G. cum Pension scheme even on
filing of the writ petition in year 2010
while the last offer was made in the year
2003 only, can be made applicable to the
4 All. Smt. Madhu Yadav Vs. State of U.P. & Ors.
547
case in hand as well. Shashi Kiran batch
employees had consciously opted for
C.P.F. Scheme even before the last cut-off
date as petitioners herein.

14.
In
the
present
case,
the
respondents-Union
of
India/Central
Government, in my considered view, were
certainly not justified in refusing to
consider the claim in the year 1999 by
writing back to the Sansthan that no such
scheme to switch over was available any
more. The third respondent is very well
funded by the Central Government and the
contributions have been made by the
Central Government under the C.P.F.
scheme. The petitioners though have
received the same but would certainly be
refunding back at the same rate of interest
as has been directed by the Supreme Court
in its judgment (supra). It is claimed that no
other employee of the Hindi Sansthan falls
in this category and if their claims are
accepted that will not open any flood gates
of litigations.

15. In the circumstances, therefore, I
find good reasons to allow this petition and
give benefits of old pension scheme to the
petitioners. In so far as petitioner no.1 is
concerned, he though had retired already
but had of course moved an application to
permit him to switch over from C.P.F.
scheme to G.P.F. cum Pension scheme in
the year 1999 and then in 2013 itself and
recommendations were made sometime
much before his retirement. Although his
case could have fallen in the category of
those cases where one can say that not
much protest was made in accepting the
funds etc. under the C.P.F. scheme at the
time of retirement, but in view of the fact
that in Shashi Kiran batch of cases
Supreme Court had allowed petition even
for retired employees subject to refund of
fund obtained by them with 8 per cent
interest to cover up the financial loss that
otherwise government may suffer in giving
pension under the old pension scheme, I do
find justification to allow this benefit to
petitioner no.1 as well.

16. In view of the above, writ petition
succeeds and is allowed. The respondents
are directed to convert petitioners' C.P.F.
scheme to G.P.F. cum Pension scheme. The
fund that has been received under the
C.P.F. scheme shall be refunded by the
petitioner except their own share of
contribution at the rate of 8 per cent simple
interest as has been directed by the
Supreme Court in its judgment (supra).
They will be furnishing an affidavit of this
undertaking and thereafter the respondents
shall fix the time limit or any other
modality to receive refund from the
petitioners.

17. It is made clear that this will be
one time opportunity and if the petitioners
fail to pay back the contribution with 8
percent interest per annum as per modality
prescribed for, no further opportunity will
be afforded for the same and petitioners
will have to remain satisfied with whatever
they have gained under the C.P.F. Scheme.
----------
(2024) 4 ILRA 547
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.04.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 66273 of 2014

Smt. Madhu Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents