# Dr. V.P. Singh and others v. Executive Council Banaras Hindu University, Varanasi and others

- **Citation:** (2011) 2 ILRA 934
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-08-12
- **Case number:** Civil Misc. Writ Petition No.32101 of 2004
- **Bench:** Sunil Ambwani, K. N. Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-v-p-singh-and-others-v-executive-council-banaras-hindu-university-varanasi-42016
- **Pages:** 7

## Headnote

Sri Rakesh Sinha
Sri K.C. Sinha
Sri Pankaj Naqvi
Sri P.N.Rai
Sri V.K.Upadhyay
Sri V.K. Srivastava
C.S.C.

Central University Retirement Benefit
Rules,
1967-Rule-3(iii)-Request
to
switch over from old pension benefits to
new Pension Scheme-who failed to give
option
within
prescribed
period-Vice
Chancellor
initially
accepted
but
subsequently
withdraw-central
Govt.
refused to accept the recommendation
for
switch
over-held-justified
no
recurring cause of action arose to put
claim after such long time.

Held: Para 17

We are of the opinion that the Vice
Chancellor on his own without there
being any approval of the Executive
Council, which is in turn bound in the
matters of financial discipline, by the
decisions taken by the University Grants
Commission,
which
fully
funds
the
University, did not have any authority to
extend the date for option.

## Text

934 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.08.2011

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE K. N. PANDEY, J.

Civil Misc. Writ Petition No.32101 of 2004

Dr. V.P. Singh and others ...Petitioners
Versus
Executive
Council
Banaras
Hindu
University, Varanasi and others

 ...Respondents

Counsel for the Petitioner:
Sri G.K.Singh
Sri V.K. Singh

Counsel for the Respondents:
Sri Rakesh Sinha
Sri K.C. Sinha
Sri Pankaj Naqvi
Sri P.N.Rai
Sri V.K.Upadhyay
Sri V.K. Srivastava
C.S.C.

Central University Retirement Benefit
Rules,
1967-Rule-3(iii)-Request
to
switch over from old pension benefits to
new Pension Scheme-who failed to give
option
within
prescribed
period-Vice
Chancellor
initially
accepted
but
subsequently
withdraw-central
Govt.
refused to accept the recommendation
for
switch
over-held-justified
no
recurring cause of action arose to put
claim after such long time.

Held: Para 17

We are of the opinion that the Vice
Chancellor on his own without there
being any approval of the Executive
Council, which is in turn bound in the
matters of financial discipline, by the
decisions taken by the University Grants
Commission,
which
fully
funds
the
University, did not have any authority to
extend the date for option.

(Delivered by Hon'ble Sunil Ambwani, J.)

1. We have heard Shri G.K. Singh
for the petitioners. Shri Rakesh Sinha for
the Central Government. Shri Pankaj
Naqvi for Banaras Hindu University and
Shri V.K. Upadhyay for the University
Grants Commission.

2. All the petitioners are teachers/
employees
of
the
Banaras
Hindu
University.
By
the
writ
petition
No.32101 of 2004 they have prayed for
quashing the decision of the Executive
Council of the University dated 19th20th July, 2002 as communicated by the
Registrar of the University on 5.9.2002
regretting to approve the orders of the
Vice Chancellor of the University dated
20.3.2001 and 18.1.2002 to grant another
opportunity to the university employees,
and to all those who have superannuated
after 1.1.1996, to opt for the pension
scheme. Consequently, the action taken
in compliance to the Vice Chancellor
order dated 18.1.2002 was withdrawn.
The petitioners have further prayed for
writ of mandamus commanding the
university to allow the petitioners to
switch back from Contributory Provident
Fund Scheme (CPF Scheme) to General
Provident
Fund-cum-Gratuity-cumPension Scheme (GPF-Gratuity-CumPension Scheme).

3. In Writ Petition No.28790 of
2004, the petitioner has challenged the
decision of the Executive Council dated
31st May, 2003 communicated to the
petitioner vide letter dated 24th July,
2003.
2 All] Dr. V.P. Singh and others V. Executive Council Banaras Hindu University, Varanasi and others

935

4. Brief facts giving rise to these
writ petitions are that the Fourth Central
Pay Commission recommended that all
contributory fund beneficiaries in service
as on 1.1.1986 should be deemed to have
come over to the Pension Scheme unless
they specifically opt to continue under
the
Contributory
Provident
Fund
Scheme. The Department of Pension and
Pensioners Welfare accordingly issued
an order on 1.5.1987 under which the
option was to be exercised by 30.9.1987.
Those employees, who opted to continue
under CPF Scheme were expressly
retained in CPF Scheme. All the
petitioners opted to continue with CPF
Scheme.

5. Shri G.K. Singh appearing for
the petitioners states that the Benaras
Hindu University vide its Circular dated
26.3.2001 invited applications from the
employees of the respondent university
for changing over from CPF to GPFGratuity-Pension Scheme. The option
was to be exercised by 25.5.2001. The
decision to give an opportunity to the
employees was taken by the Vice
Chancellor on the recommendation of a
committee, which was appointed by the
competent authority of the university and
included two members of the Executive
Council. Many employees exercised the
option and were allotted the GPF
numbers. Although in respect of some of
the
numbers
'interim'
word
was
mentioned but in many cases the word
'interim' was not mentioned. The process
continued for a period of 17 years after
which the facility was discontinued and a
decision was taken by the Executive
Council of the University on 19th-20th
July, 2002, which is under challenge.

6. It is submitted by learned
counsel for the petitioner that the
Executive Council of the University has
acted arbitrarily in not accepting the
option form, which was submitted by the
petitioner in pursuance to the notification
dated 26.3.2001. The university had in
the past also invited options in the year
1988 and thrice in the year 1995 from the
teachers/ employees of the Universities.
There
are
several
other
premier
institutes/ universities in the country in
which the teachers and employees have
been extended the facility of switching
back from CPF to GPF-Gratuity-Pension
Scheme upto the year 2003.

7. The petitioners have amended
the writ petitions and have challenged
the decision of the Government of India
and the University Grants Commission
dated
22.7.2003,
23.9.2003
and
20.10.2003 rejecting the request of the
University
to
allow
the
teachers/
employees to switch over to the GPFGratuity-Pension
Scheme
and
have
challenged the order dated 22.7.2003
passed
by
the
Joint
Secretary
(Personnel), Department of Expenditure,
Ministry of Finance, Government of
India, the order dated 23.9.2003 passed
by the Under Secretary, University
Grants Commission, and the order dated
20.10.2003
passed
by
the
Deputy
Secretary, Department of Secondary and
Higher Education, Minister of Human
Resource Development, Government of
India. It is submitted that on the
recommendation of 5th Pay Commission
the pay package was drastically amended
in favour of the employees, who had
opted for GPF-Gratuity-Pension Scheme
and has adversely affected those, who
continued under CPF Scheme in as much
as the age of superannuation was raised
936 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

from 60 to 62 years; the commutation of
pension was increased from 1/3rd of the
pension to 40% of the pension amount;
25% of the non-practicing allowance was
provided to the teachers belonging to
medical profession to be treated as pay,
for calculating pension. The dearness
allowance was added for the purposes of
calculation of gratuity, with ceiling of
Rs.3.5 lacs and family pension was
liberalised w.e.f. 1st January, 1998
giving the benefit to mother/ father, in
the absence of spouse and children. The
denial of an opportunity, which has been
given to the teachers of many other
institutes, to switch back from CPF to
GPF Scheme, is thus wholly arbitrary
and illegal and violative of petitioners'
rights under Art. 14 and 16 of the
Constitution of India.

8. Shri Pankaj Naqvi appearing for
the Banaras Hindu University, states that
the President of India in the capacity as
visitor of the University had approved
the amendment of Statute 43 of the
B.H.U. Act and accordingly the Central
University Retirement Benefit Rules,
1967 were circulated by notification
dated
29.12.1967
requesting
the
employees of the University to exercise
their option under Rule 3 (iii) of the
Rules. Those employees, who opted for
CPF Scheme were again given an
opportunity to switch over providing for
the last date of exercising the option by
31st December, 1995. Thereafter, no
further opportunity was allowed. Some
of the employees, who had opted for
CPF Scheme and also did not avail the
option by 31st December, 1995 made
joint representation giving him another
opportunity. Their representation was
forwarded
to
University
Grants
Commission, New Delhi in November,
1999.
The
University
Grants
Commission referred the matter to the
Ministry
of
Human
Resource
Development, which in turn sought the
advice of Ministry of Finance. The
Ministry of Finance did not accept the
joint representation.

9. The Vice Chancellor constituted
a Committee under the Chairmanship of
Shri D.K. Rai vide notification dated
31.1.2001 to examine whether the
request of the teachers/ employees to
give one more opportunity can be
considered.
The
Committee
recommended that the letters of UGC
dated 15th June, 2000 and Ministry of
Human Resource Development dated
19th June, 2000 be reported to the
Executive Council for its permission to
make it applicable within the scope of
Statute 43 of the Banaras Hindu
University. The Vice Chancellor by his
order dated 20.3.2001 accepted the
recommendation and issued a circular
allowing another opportunity to all the
employees inviting revised option forms
to all those employees, who were on the
rolls of the university as on 31.12.1995
and have superannuated prior tot he
issuance of the Circular dated 26.3.2001.
The matter was placed before the
Executive Council of the University,
which in its meeting dated 19th-20th
July, 2001 resolved that since the
invitation of option is in contravention of
the directives of the UGC/ MHRD, the
same cannot be accepted. Consequently,
the Vice Chancellor by his order dated
18.1.2002 was withdrawn the option and
the decision was circulated to all the
concerned
in
the
University
vide
notification dated 5th/9th September,
2002.
2 All] Dr. V.P. Singh and others V. Executive Council Banaras Hindu University, Varanasi and others

937

10. Shri Pankaj Naqvi submits that
the University is fully funded by the
University Grants Commission, and is
bound by the directions of the Ministry
of Finance. Since the Ministry of Finance
did not agree, neither the Ministry of
Human Resource Development nor the
UGC
were
competent,
under
the
financial discipline, to accept the request
for giving another option to switch over
to the pension scheme.

11. Shri Rakesh Sinha, learned
counsel
appearing
for
the
Central
Government has relied upon the affidavit
of Shri R.P. Tiwari, Under Secretary,
Department
of
Higher
Education,
Ministry
of
Human
Resource
Development, Shastri Bhawan, New
Delhi, in which it is stated that as a
matter of policy the Union Government
has
discontinued
the
GPF-GratuityPension Scheme to all the employees
joining Central Government, and that
after
1.1.2004
all
the
Central
Government employees were offerred
and have been brought under the new
Pension
Scheme.
The
Ministry
of
Finance has suggested that all the
employees covered under the GPFGratuity-Pension
Scheme
may
be
considered to switch over to new pension
scheme and thus there is no merit in the
writ petition in which prayers have been
made by the petitioners to allow them to
switch back to the GPF-Gratuity-Pension
Scheme, after they have opted for CPF
Scheme.

12. With regard to discrimination it
is stated by Shri Rakesh Sinha relying
upon para 10 of the counter affidavit that
the
Ministry
of
Human
Resource
Development by its letter dated 1.9.2003
and 21.5.2004 communicated to the
Directors of IITs at Bombay, Kanpur,
Delhi, Gorakhpur, Madras, Guwahati and
Roorki that option exercised by the
employees at the time of implementation
of the 4th Central Pay Commission was
final and there is no question of further
exercising the option to switch over to
the GPF-Gratuity-Pension Scheme. The
Directors of these IITs were requested
not to entertain any request for switch
over from the staff, who have since
retired. The Delhi University was also
not given permission by UGC for
extension of date of option from CPF
Scheme to GPF Scheme.

13. Shri V.K. Upadhyay appearing
for the University Grants Commission
has relied upon the counter affidavit of
Dr. N.K. Jain, Joint Secretary, University
Grants Commission, New Delhi. He has
reiterated the objections taken by the
University as well as the Central
Government.
He
submits
that
the
University Grants Commission had taken
up the matter by letter dated 8.8.2001 to
the Joint Secretary, Government of India,
MHRD to consider to extend the scheme
and to notify a clear view of cut off date
so that the institutions do not fix their
own cut off date. The Ministry of Human
Resource Development, Government of
India by its letter dated 22.9.2001
informed the UGC that earlier the matter
was examined in consultation with the
Ministry of Finance (Department of
Expenditure). The Ministry had regretted
and expressed its inability to allow one
more option to change over from CPF to
GPF Scheme to the employees of the
UGC and institutions maintained by it.
Earlier the Ministry of Human Resource
Development, Government of India by
letter
dated
19.6.2000
had
also
communicated the matter pertaining to
938 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

the option in consultation with the
Ministry of Finance and had regretted its
inability to allow one more option.

14. It is submitted by learned
counsel appearing for UGC that Ministry
of Human Resource Development by its
letter dated 24.12.2002 forwarded a letter
to the Vice Chancellor, Banaras Hindu
University regarding change of option.
After
examining
the
matter
UGC
informed by its letter dated 23.9.2003
that the options were available only upto
30.9.1987 and as such request of
University cannot be considered.

15. So far as discrimination is
concerned, learned counsel appearing for
UGC submits that the Banaras Hindu
University extended the date in the year
1988 and in 1995 on its own, without the
approval of UGC. The UGC by its letter
dated 23rd September, 2003 informed the
University that one more option to
change over cannot be accepted. In case
of Assam University the employees, who
were recruited after 1994 and that at that
time only GPF Scheme was available,
the Assam University by mistake given
CPF to the employees, which was not
permissible. In para 8 of the counter
affidavit
of
Dr.
M.K.
Jain,
Joint
Secretary, UGC it is stated that IITs at
Kanpur, Bombay, Gorakhpur and Roorki
are not covered under the purview of
UGC and that Delhi University was not
given any permission by UGC to extend
the date. By D.O. letter dated 25.5.1999
addressed to the Registrar, University of
Delhi, a copy of which was endorsed to
all Central University cut of date for
change over from CPF to GPF was
informed to be 30.9.1987 and the benefit
of
retirement
liabilities
for
such
employees after cut off date was to be
treated as unapproved expenditure. On
the basis of the reply received from the
Delhi University to UGC they suggested
to
Ministry
of
Human
Resource
Development on 3rd September, 2002 to
regularise
the
change
for
Delhi
University upto 31.3.1998 or that the
Government of India may instruct UGC
with pension liability of the employee be
not made by UGC, who have permitted
irregular
conversion
from
CPF
to
Pension Scheme after 30.9.1987. In
reference to these letters the Ministry of
Human Resource Development informed
UGC on 24.10.2002 that since the UGC
is funding agency and it itself had
extended the government policy on
conversion from CPF to GPS to the
Central
Government
and
deemed
universities receiving 100% maintenance
grant,
no
specific
government
instructions are warranted to those
employees of the University of Delhi,
who
had
not
permitted
to
make
conversion from CPF to GPF Pension
Scheme after prescribed cut off date. The
UGC had not permitted the University
for
extension
of
the
dates.
The
conversion
was
accepted
by
the
Executive
Council
of
the
Delhi
University,
where
there
is
no
representative of UGC/ Government of
India. The permission for extension to
some of the employees by Banaras Hindu
University after the cut off date is in
violation of the instructions given by the
Government of India and UGC.

16. From these facts, we find that
the University Grants Commission had
never communicated any decision to the
Banaras Hindu University to extend cut
off date for change of the option. The
Ministry
of
Human
Resource
Development had requested Ministry of
2 All] Dr. V.P. Singh and others V. Executive Council Banaras Hindu University, Varanasi and others

939
Finance (Department of Expenditure),
which did not agree to extend the cut off
date for switching over from CPF to GPF
Scheme.
The
Office
Memorandum
No.4/1/87 dated 1.5.1987 notifying the
scheme pertaining to change over from
CPF to GPF was never amended. The
Vice Chancellor of the Banaras Hindu
University, on his own without any
authority
from
University
Grants
Commission and further without there
being any resolution of the Executive
Council appears to have extended the
date for some of its employees upto 31st
December, 1995. The change offerred to
them was beyond the authority of the
Vice Chancellor of the University. The
Committee headed by Prof. D.K. Rai had
made a recommendation for giving one
more opportunity to switch over to GPF,
which appears to have been accepted by
the
Vice
Chancellor,
without
the
recommendations
of
the
Executive
Council and that finally the Executive
Council
by
its
impugned
decision
regretting its inability to approve the
orders of the Vice Chancellor dated
20.3.2001 and 18.1.2002. The Vice
Chancellor of the University could not
have acted against the directives of the
University
Grants
Commission
and
Ministry
of
Human
Resource
Development as the University is fully
funded
by
the
University
Grants
Commission.

17. We are of the opinion that the
Vice Chancellor on his own without
there
being
any
approval
of
the
Executive Council, which is in turn
bound in the matters of financial
discipline, by the decisions taken by the
University Grants Commission, which
fully funds the University, did not have
any authority to extend the date for
option.

18. In the present case the question
involved is not to extend the date of
option but to allow the petitioner to
withdraw their option to continue in the
CPF Scheme. Under the scheme all the
teachers/ employees were allowed the
benefit
of
GPF-Gratuity-Pension
Scheme. Only those employees, who had
exercised their option to continue under
the CPF Scheme were not given the
benefit. Rule 3 (iii) of the Central
University Retirement Benefit Rules,
1967 were not amended to give authority
to the Vice Chancellor to extend the last
date. The Vice Chancellor on his own
without any valid authority vested in him
extended the cut off date in the year 1988
and in 1995. The petitioners did not take
benefit of this unauthorised extension
policy also. They, therefore, have no
right
whatsoever
to
claim
further
extension. The Executive Council did not
commit any mistake in regretting its
inability to extend the date following the
directives of the UGD and Ministry of
Human Resource Development.

19. The petitioners are teachers and
employees of the University. They had
fully
understood
the
financial
implications of the option exercised by
them. The benefits offered by the 5th Pay
Commission given w.e.f. 1.1.1996 could
not be a ground to allow them to opt for
GPF-Gratuity-Pension Scheme almost
nine years after the cut off date fixed at
30.9.1987 had expired.

20.

The
University
Grants
Commission
has
given
sufficient
explanation
to
the
complaint
of
discrimination. The Guwahati University
940 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

employees appointed in 1994 were
wrongly offered CPF Scheme and thus
they were all brought into GPF Scheme
for rectifying the error. The IITs were
instructed by UGC/ MHRD not to extend
cut of date since they are not funded by
the U.G.C. Any decision taken by them
will not amount to discrimination with
the teachers/ employees of the Central
Universities.
The
Delhi
University
continued with an illegality, against the
clarifications issued by the UGC and
Ministry
of
Human
Resource
Development.

21. In Union of India Vs. M.K.
Sarkar, (2010) 2 SCC 59 the Supreme
Court held where an employee governed
by CPF Scheme did not opt for pension
scheme, despite several chances given to
him, his representation 22 years after his
retirement, with willingness to refund the
amount cannot be permitted to switch
over to pension scheme. If his request is
accepted, the effect would be to permit
him to secure double benefit. There was
no recurring or continuing cause of
action to file writ petition after such a
long time. If was further held that when
he had notice or knowledge of the
availability of option he could not be
heard to contend that he did not have
written intimation of option.

22. We also find that this writ
petition
was
filed
on
5.8.2004
challenging the decision of the Executive
Council of the University dated 19/20th
July,
2002,
communicated
by
the
Registrar of the University on 5.9.2002,
and much after the new pension scheme
had become applicable to all the
employees joining Central Government
after 1.1.2004. The employees, who were
covered
by
GPF-Gratuity-Pension
Scheme were given offer to switch over
to new pension scheme and thus in the
year 2004 there was absolutely no
justification for the petitioners, many of
whom have retired long ago to be offered
an opportunity to change their option and
to switch back to GPF-Gratuity-Pension
Scheme.

23. Both the writ petitions are
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2011

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI,J.

Civil Misc. Writ Petition No. 33458 of 2010

Hargen

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.P. Dubey
Sri A.N. Tiwari

Counsel for the Respondents:
Sri Brahma Deo Mishra
C.S.C.

U.P. Consolidation of Holdings Act ,
1973-Sect6ion-49-Basis of lease 1939objection that land being Banjar Land
can not be adjudicated by Consolidation
Authorities held misconceived-nature of
right claimed on basis of long entrycould be decided by the consolidation
Court-view taken by Board of Revenueheld-proper.

Held: Para 4

The contention of the petitioner is that
since the land is recorded as Banjar, and
therefore the consolidation authorities
would not have jurisdiction to proceed