# Priyankar Upadhyaya v. U.O.I. & Ors

- **Citation:** (2025) 3 ILRA 340
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-03-18
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/priyankar-upadhyaya-v-u-o-i-ors-53073
- **Pages:** 15

## Headnote

Sri V.K. Upadhyay, Sri Ajit Kumar Singh, Sri
Shashi Prakash Singh, Senior Advocates,
Sri Ritvik Upadhyay, Sri Hem Pratap Singh,
Sri Manoj Kumar Singh, Sri Purnendu
Kumar Singh, Sri Dhananjay Awasthi, Sri
Rahul Jain, Advocates

A.
Service
Law
-
Constitution
of
India,1950 - Article 226 - Writ - Second
writ petition - Maintainability - Earlier,
writ petition seeking switch back from
CPF Scheme to GPF-cum-Pension Scheme
was dismissed - Afterward a judgment
with different view was passed by Delhi
High Court, which got affirmed by the
Apex Court too - How far can be ground of
maintaining second petition with similar
relief - Held, petitioners have wrongly
declared that present writ petitions are
their first writ petitions on the relief
sought. Therefore, Court is of the view
that declaration made in present writ
petitions is contrary to record - Held
further, only on ground that subsequently
a different interpretation of law was given
by a Single Bench of Delhi High Court,
which was affirmed upto Supreme Court
and since petitioners were approaching
the authorities after these judgments,
would not make a ground that said
judgment is applicable to petitioners so
much as that earlier judgment would not
come in the way. (Para 8 and 29)

B. Service Law - Contributory Provident
Fund
-
Office
Memorandum
dated
01.05.1987 was issued giving option to
change over from CPF Scheme to GPFcum-Pension Scheme with cut off date
09.07.1998 - Option to remain in earlier
Scheme was given before fixed cut-off
date - Effect - Claim of being deemed to
come over in GPF-cum-Pension Scheme
was made - Permissibility - Held, any
option given beyond 09.07.1988 would
non est, however, on basis of record, none
of petitioners have a case that they have
opted to remain in earlier CPF Scheme on
basis of above cutoff date rather their
claim was taken birth only after Banaras
Hindu University adopted the Scheme on
09.04.1988 and they have given option
before new cut off date, i.e., 09.07.1988,
therefore, the benefit of judgment in
University of Delhi Vs Smt. Shashi Kiran
would not be applicable. [Para 21 and
30(c)]

C. Judgment in rem and Judgment in
personam - Applicability of Apex Court
judgment of Smt. Shashi Kiran's case,
being judgment in rem, was sought -
Held, judgment passed by Supreme Court
in University of Delhi Vs Smt. Shashi Kiran
was a judgment in rem and not in
personam, however, facts of each case
may have different consequences. (Para
26)

Writ petition dismissed. (E-1)

List of Cases cited:

## Text

_Characters 0–39,491 of 49,829. This is a partial read: ask again with offset=39491 for what follows._

340 INDIAN LAW REPORTS ALLAHABAD SERIES
29.
The
Supreme
Court
in
Kunhayammed & others v. State of Kerala
and another [(2000) 6 SCC 359], held that
when a superior authority adjudicates a matter
on merit, the lower authority's order ceases to
have an independent existence. Similarly, in
Union of India v. K. V. Jankiraman [(1991) 4
SCC 109], the Court held that once an
administrative authority reconsiders an order,
limitation should be counted from the date of
reconsideration of decision rather than the
original order.

30. The rejection of the claim petition
by the Tribunal solely on the ground of
limitation violates the fundamental principles of
natural justice. The petitioner was unaware of
his dismissal order until he received an
information from the Nodal Officer, Firozabad.
It is well-settled principle of procedure that
limitation does not begin to run against a party
until he has knowledge of the adverse order.

31. A plea has been taken by the
respondents that though the dismissal order was
alleged to have been served upon the wife of
the petitioner on 04.12.2013, but it was not
established from the record that it had actually
been served upon her. After 21⁄2 years, the
Nodal Officer, Firozabad supplied the requisite
information on 09.02.2016 that too on the
petitioner's application moved on 23.01.2016.
Thereafter, on a direction given by the Tribunal,
the representation was decided on merit by the
competent authority by a detailed order passed
on 05.06.2017 against which the petitioner filed
a claim petition on 20.02.2018, which ought to
have been treated well within time prescribed
under the statute.

32. Since the petitioner promptly
pursued the remedies upon service of the
dismissal order, the claim of the petitioner could
not held to be time-barred by overlooking the
scheme of statutory Rules understood as above.
33. For the aforementioned reasons,
the Court is of the opinion that the rejection
of the claim petition merely on the ground of
limitation is legally unsustainable in view of
the application of doctrine of merger which
followed as a result of non-supply of the
order passed in the year 2013 giving rise to
representation under Rule 25 of the Rules,
1991. Secondly, the petitioner was deprived
of an opportunity to contest his dismissal
order
on
merits
due
to
procedural
irregularities of service of the order and
lastly, limitation cannot run against a party
unaware of the adverse action.

34. In view of the foregoing
paragraphs, the view taken by the
Tribunal is not tenable and calls for
interference.

35. Accordingly, the writ petition is
allowed and the impugned judgment and
order dated 12.07.2022 is quashed. The
matter is remitted to the Tribunal for deciding
it afresh on merits, within a period of six
months from the date of receipt of a certified
copy of this order, as the matter is lingering
since 2013. Parties undertake to co-operate
with the proceedings before the Tribunal. No
order as to costs.
----------
(2025) 3 ILRA 340
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.03.2025

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ - A No. 18801 of 2024 connected with
other cases

Priyankar Upadhyaya ...Petitioner
Versus
U.O.I. & Ors. ...Respondents
3 All. Priyankar Upadhyaya Vs. U.O.I. & Ors.
341
Counsel for the Petitioner:
Sri R.K. Ojha, Sri G.K. Singh, Sri Pradeep
Chandra, Senior Advocates, Sri Shivendu
Ojha, Sri Sankalp Narain, Ms. Asha Parihar,
Sri Manoj Kumar Singh, Advocates

Counsel for the Respondents:
Sri V.K. Upadhyay, Sri Ajit Kumar Singh, Sri
Shashi Prakash Singh, Senior Advocates,
Sri Ritvik Upadhyay, Sri Hem Pratap Singh,
Sri Manoj Kumar Singh, Sri Purnendu
Kumar Singh, Sri Dhananjay Awasthi, Sri
Rahul Jain, Advocates

A.
Service
Law
-
Constitution
of
India,1950 - Article 226 - Writ - Second
writ petition - Maintainability - Earlier,
writ petition seeking switch back from
CPF Scheme to GPF-cum-Pension Scheme
was dismissed - Afterward a judgment
with different view was passed by Delhi
High Court, which got affirmed by the
Apex Court too - How far can be ground of
maintaining second petition with similar
relief - Held, petitioners have wrongly
declared that present writ petitions are
their first writ petitions on the relief
sought. Therefore, Court is of the view
that declaration made in present writ
petitions is contrary to record - Held
further, only on ground that subsequently
a different interpretation of law was given
by a Single Bench of Delhi High Court,
which was affirmed upto Supreme Court
and since petitioners were approaching
the authorities after these judgments,
would not make a ground that said
judgment is applicable to petitioners so
much as that earlier judgment would not
come in the way. (Para 8 and 29)

B. Service Law - Contributory Provident
Fund
-
Office
Memorandum
dated
01.05.1987 was issued giving option to
change over from CPF Scheme to GPFcum-Pension Scheme with cut off date
09.07.1998 - Option to remain in earlier
Scheme was given before fixed cut-off
date - Effect - Claim of being deemed to
come over in GPF-cum-Pension Scheme
was made - Permissibility - Held, any
option given beyond 09.07.1988 would
non est, however, on basis of record, none
of petitioners have a case that they have
opted to remain in earlier CPF Scheme on
basis of above cutoff date rather their
claim was taken birth only after Banaras
Hindu University adopted the Scheme on
09.04.1988 and they have given option
before new cut off date, i.e., 09.07.1988,
therefore, the benefit of judgment in
University of Delhi Vs Smt. Shashi Kiran
would not be applicable. [Para 21 and
30(c)]

C. Judgment in rem and Judgment in
personam - Applicability of Apex Court
judgment of Smt. Shashi Kiran's case,
being judgment in rem, was sought -
Held, judgment passed by Supreme Court
in University of Delhi Vs Smt. Shashi Kiran
was a judgment in rem and not in
personam, however, facts of each case
may have different consequences. (Para
26)

Writ petition dismissed. (E-1)

List of Cases cited:

1. University of Delhi Vs Smt. Shashi Kiran &
ors.; 2022(7) SCR 957

2. Neerja Tiku Vs School of Planning &
Architecture & anr.; 2024:DHC:2891

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

CORAM : HON'BLE SAURABH
SHYAM SHAMSHERY, J.

1. Petitioners, in above referred writ
petitions, are retired teaching and nonteaching employees of Banaras Hindu
University and they are beneficiaries of
Contributory
Provident
Fund
Scheme
(hereinafter referred to as "CPF Scheme").

2. Government of India has issued an
Office Memorandum dated 01.05.1987 on a
342 INDIAN LAW REPORTS ALLAHABAD SERIES
subject "Change over of the Central
Government
employees
from
the
Contributory Provident Fund Scheme to
Pension Scheme-Implementation of the
commendations of the Fourth Central Pay
Commission". Salient features of said
Office
Memorandum
are
reproduced
hereinafter:

"The undersigned is directed to
state
that
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. F3(1)-Pension unit/85 dated the
6th June, 1985. However, some Central
Government employees still continue under
the CPF Scheme. The Fourth Central Pay
Commission has now 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 the
President is pleased to decide that the said
recommendation shall be accepted and
implemented in the manner hereinafter
indicated.

3. All CPF beneficiaries, who
were in service on 1.1.1986 and who are
still in service on the date of issue of these
orders will be deemed to have come over to
the Pension Scheme.

3.2. The employees of the category
mentioned above will, however, have an
option to continue under the CPF Scheme, if
they so desire. The option will have to be
exercised and conveyed to the concerned
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 1.1.1986, 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 30.09.1987.

3.4.
In
the
case
of
CPF
beneficiaries, who were in service on
1.1.1986 but have 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 they specifically opt by
30.09.1987 to have their retirement 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 30.09.1987
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 All. Priyankar Upadhyaya Vs. U.O.I. & Ors.
343

3.7 In the types of cases covered
by paragraph 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."

3. In pursuance of above Office
Memorandum,
the
Deputy
Registrar
(Administration),
Banaras
Hindu
University has made a communication to
Secretary, University Grants Commission
to sent copies of order on the subject to
switch over to CPF Scheme to General
Provident Fund-cum- Pension Scheme
(hereinafter referred to as "GPF-cumPension Scheme") and accordingly Under
Secretary of University Grants Commission
by communication dated 19.01.1988 sent
an Office Memorandum to Registrar of
many
Central
Universities
including
Registrar of Banaras Hindu University on
above referred issue. After due deliberation
office
of
Registrar
(Administration),
Banaras Hindu University issued an Office
Memorandum dated 09.04.1988 on the
subject "Change over of the Central
Government
employees
from
the
Contributory Provident Fund Scheme to
Pension Scheme-Implementation of the
commendations of the Fourth Central Pay
Commission". This communication was
addressed to Head of different Departments
of Banaras Hindu University. The contents
of communication, being relevant for the
purpose of adjudication of present cases,
are reproduced hereinafter:

"I am directed to inform you that
it
has
been
decided
to
apply
the
Government of India orders on the above
subject to the employees of the University.
Accordingly, all the University employees
on CPF/PF Scheme who were in service on
1.1.1986 will be deemed to have comeover
to Pension Scheme.

2. The employees of the category
mentioned above will, however, have an
option to continue under the PF/CPF
Scheme if they so desire. This option will
have to be exercised and conveyed to this
office latest by the 9th July, 1988 in the
form enclosed. If no option is received by
this date the employee will be deemed to
have come over to Pension Scheme.

3.
The
employees
who
have/subsequent to 1.1.1986 and in whose
cases retirement benefits have been paid
under the CPF Scheme will also be eligible
to come over to Pension Scheme provided
they refund the University's contribution
and interest thereon drawn by them.

4. In the case of employees who
were in service on 1.1.1986 but have since
died either before or after retirement, the
option to retain the CPF benefits or to
come over to Pension Scheme will be
exercised by the widow/widower, and, in
the absence of widow/widower by the eldest
serviving member of the family who would
have otherwise been eligible to family
pension under the Family Pension Scheme
if such scheme were applicable to the
employee.

5. The last date for exercising
options in all cases will be the 9th July,
1988 and option once exercised will be
final.

 6. In the cases involving refund of
University's contribution to provident fund
344 INDIAN LAW REPORTS ALLAHABAD SERIES
(including interest thereon), the amount
will have to be refunded latest by the 9th
July, 1988, failing which interest thereon
@ 10% per annum will be payable for the
period beyond this date.

 7. The provisions of this Circular
do not apply to personnel re-employed in
the University or those appointed on
contract basis.

 8.
The
Directors/Deans/Principals/Heads etc. are
requested to bring the contents of this
Circular to the notice of all the employees
subscribing
to
the
Provident
Fund/Contributory Provident Fund under
their control including those on leave or on
foreign service terms, so that the ignorance
of these orders is not pleaded at a later
stage and the options of the employees
delivered in this office in time."

4. As referred above, the Office
Memorandum of Government of India
dated 01.05.1987 wherein the last date for
exercising options was fixed as 30.09.1987
was adopted by Banaras Hindu University
subsequently on 09.04.1988 and last date
for exercising options was fixed as
09.07.1988.

5. At this stage, it would be
relevant to mention here that University of
Delhi has accepted the recommendation of
6th Pay Commission by notification dated
25.05.1987, i.e., within a very short period
of Office Memorandum dated 01.05.1987
issued by Government of India and
accordingly cut off date, i.e., 30.09.1987
would be relevant for the purpose of
University of Delhi. However, with regard
to Banaras Hindu University Court above
referred two dates, i.e., 09.04.1988 when
Banaras Hindu University adopted the
Scheme and last date for option was fixed
to be 09.07.1988 would be relevant

6. Petitioners have declared that in
pursuance
of
above
referred
communication they have given option to
continue in earlier Scheme, i.e., CPF
Scheme before cut off date as fixed by
Banaras Hindu University, i.e., 09.07.1988.
It is also on record that Banaras Hindu
University has extended the cut off date of
submitting option subsequent to 09.07.1988
also on more than one occasion and some
employees have given option thereafter
also to remain in CPF Scheme.

7.
In
aforesaid
circumstances,
number of petitioners, have earlier filed
Writ Petitions No. 32101 of 2004 and
28790 of 2004, wherein they have prayed
that they may be allowed to switch back
from CPF Scheme to GPF-cum-Pension
Scheme, i.e., to withdraw their option to
remain in CPF Scheme. The Division
Bench of this Court vide order dated
12.08.2011 dismissed both writ petitions
and relevant part of said judgment is
reproduced hereinafter:

 "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
3 All. Priyankar Upadhyaya Vs. U.O.I. & Ors.
345
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 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.
346 INDIAN LAW REPORTS ALLAHABAD SERIES
 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 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-GratuityPension 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
3 All. Priyankar Upadhyaya Vs. U.O.I. & Ors.
347
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 GPFGratuity-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 GPFGratuity-Pension Scheme."

8. The above judgment was not
assailed further, as such, it has attained
finality. In aforesaid circumstances, the
present writ petitions seeking similar relief
should have declared present writ petitions
as second writ petitions on same issue.
However,
petitioners
have
wrongly
declared that present writ petitions are their
first writ petitions on the relief sought.
Therefore, Court is of the view that
declaration made in present writ petitions is
contrary to record.

9. Sri R.K. Ojha, learned Senior
Advocate assisted by Sri Shivendu Ojha,
Advocate; Sri G.K. Singh, learned Senior
Advocate assisted by Sri Sankalp Narain,
Advocate; Sri Pradeep Chandra, learned Senior
Advocate assisted by Ms. Asha Parihar, Advocate
and Sri Manoj Kumar Singh, Advocate for
petitioners, have vehemently submitted that
subsequently a similar matter was adjudicated
with regard to employees of University of Delhi
and law was crystallized firstly by Single Bench
and thereafter by Division Bench of Delhi High
Court and thereafter by Supreme Court in
University of Delhi vs. Smt. Shashi Kiran and
others, 2022(7) SCR 957. Learned Senior
Advocates
have
vehemently
referred
the
judgment passed by Supreme Court to contend
that case of petitioners is similar to the case of one
of the batch of petitioners therein, i.e., N.C. Bakshi
batch, and referred following findings returned by
Supreme Court, so far as said batch is concerned:

 "15. According to the notification
dated 01.05.1987 two situations were
contemplated. First, the deeming provision
348 INDIAN LAW REPORTS ALLAHABAD SERIES
in terms of which the concerned employee
was taken to have 'come over' to GPF. The
second situation being where a conscious
option was exercised before the cut-off date
to continue to be under CPF. R.N. Virmani
batch of cases was therefore rightly
allowed by the learned Single Judge and
the Division Bench of the High Court, as no
conscious option was exercised by the cutoff date. Consequently, the concerned
employees must be deemed to have 'come
over' to GPF. Logically, it would be
immaterial
whether
the
concerned
employee continued to make contribution
assuming himself to be covered under CPF,
even though contributions were made by
the concerned authorities. The benefit was
therefore rightly granted in favour of the
employees and the entire contribution was
directed to be refunded. The University has
chosen not to appeal against that decision
and thus the matter has attained finality.

 Theoretically, extension of the
same principle would be that if no option
was exercised before the cut-off date, but an
option was exercised after the cut-off date
was extended; and if no switchover could be
allowed after the cut- off date, the decisions
rendered by the learned Single Judge and
the Division Bench in the N.C. Bakshi batch
of
cases
were
also
quite
correct.
Consequently, irrespective of the fact that
the concerned employees had exercised the
option to continue to be under CPF, such
exercise of option would be non est in the
eyes of law. That in fact is the ratio of the
decision in S.L. Verma's case. Thus, both
these batches of cases were rightly decided
by the learned Single Judge and the
Division Bench. We, therefore, dismiss the
appeal in N.C. Bakshi batch of cases."

10. Learned Senior Advocates
further submitted that as soon as Single
Bench of Delhi High Court has passed
judgment in the case of employees of Delhi
University,
petitioners
herein
have
approached the concerned authorities that
similar benefit may be granted to them
since they have exercised the options after
30.09.1987, i.e., the last for exercising
option as fixed by Office Memorandum
dated 01.05.1987 issued by Government of
India and their option to continue to CPF
Scheme would be considered to be non-est
and consequently they ought to have
deemed to be switch over to GPF-cumPension
Scheme.
Learned
Senior
Advocates
further
submitted
that
petitioners have repeated their request after
the judgment passed by Division Bench of
Delhi High Court and also after the
judgment passed by Supreme Court in
University of Delhi vs. Smt. Shashi Kiran
(supra) but their representations kept
pending on one or other reasons.

11.
According
to
record,
in
aforesaid circumstances, some of the
similarly situated employees of Banaras
Hindu University approached this Court by
way of filing Writ-A No. 19158 of 2022,
which was disposed of vide order dated
29.11.2022 and for reference said order is
reproduced hereinafter:

 "Heard Sri R.K. Ojha learned
Senior Counsel assisted by Sri Shivendu
Ojha learned counsel for the petitioners,
Sri Arvind Singh learned counsel for the
Union, Sri Hemendra Pratap Singh learned
counsel for the University and Sri Rijwan
Ali Akhtar learned counsel for respondent
No. 2.

 Petitioners seek a direction upon
respondent-University to release GPF and
pension to the petitioners under General
Provident Fund Scheme. In that regard
3 All. Priyankar Upadhyaya Vs. U.O.I. & Ors.
349
reliance has been placed on two decisions
of the Delhi High Court as affirmed by the
order of the Supreme Court on 10.5.2022.

 Without entering into the merits,
insofar as the claim made by the
petitioners is prima facie tenable and the
same is still pending and the University
has already forwarded the same to
respondent No. 1 on 29.9.2022 who has to
take a final decision in the matter, no
useful purpose would be served in keeping
the petition pending or calling for counter
affidavit,
pending
that
decision.
Accordingly, writ petition is disposed of
with a direction, subject to petitioners
filing a copy of this order before
respondent No. 1, said respondent shall
verify
the
correct
facts
and
pass
appropriate
reasoned
order,
as
expeditiously
as
possible,
preferably
within a period of three months from the
date
of
compliance
shown
by
the
petitioners. Any amount found due and
payable to the petitioners may be paid out
within a further period of three months,
failing which same may attract interest @
8% from the date amount becoming due
till the date of its actual payment."

12. In pursuance of above order,
matter was considered by Government of
India and vide communication dated
03.04.2023
addressed
to
Secretary,
University Grants Commission, prayer of
petitioners to give benefit of GPF-cumPension Scheme, was rejected taking a
view that judgment passed by Supreme
Court in University of Delhi vs. Smt.
Shashi Kiran (supra) was only applicable
to employees of Delhi University and not to
employees of other Central Universities
and Ministry of Education, Department of
Higher Education, Government of India has
issued an order dated 26.04.2023 taking a
similar view as well as that the Office
Memorandum
dated
01.05.1987
was
applicable to Delhi University since it was
adopted by a separate Notification dated
25.05.1987 but Banaras Hindu University
has not adopted it in said terms. The
interpretation of it would be that the letter
dated 09.04.1988 was issued by Deputy
Registrar (Administration), Banaras Hindu
University to invite options from its
employees would not be considered to be a
legal
adoption
of
GPF-cum-Pension
Scheme. Aforesaid two orders dated
03.04.2023 and 26.04.2023 are impugned
in present writ petitions.

13. Learned Senior Advocates have
submitted
that
judgment
passed
by
Supreme Court in University of Delhi vs.
Smt. Shashi Kiran (supra) was a
judgment in rem and not a judgment in
personam and for that they referred a
judgment passed by Single Bench of Delhi
High Court in the case of Neerja Tiku vs.
School of Planning and Architecture and
another,
2024:DHC:2891
that
the
judgment of Supreme Court in University
of Delhi vs. Smt. Shashi Kiran (supra)
would be applicable to School of Planning
and Architecture and therefore, on same
analogy it would be applicable to similarly
situated
employees
of
other
Central
Universities also and they referred paras 23
and 24 of said judgment, which are
reproduced hereinafter:

 "23. From an overall reading of
the aforesaid judgment of the Supreme
Court, it is clear that for those of the
employees who had not exercised the
option
before
the
cut-off
date
i.e.,
30.09.1987 and had opted beyond that
date, such exercise of option would be non
est in law. Meaning thereby, if the option
was not exercised before the cut-off date or
350 INDIAN LAW REPORTS ALLAHABAD SERIES
exercised after the cut-off date, the deeming
provision of coming over to the GPF cum
Pension Scheme would be applicable to the
employees, in both the cases. In coming to
such conclusion regarding the effect of
deeming provision, this Court draws
strength from a judgment of the Supreme
Court in State of Bombay Vs. Pandurang
Vinayak and others reported in AIR 1953
SC 244. The relevant paragraph is
extracted hereunder:

 "12. In East End Dwellings Co.
Ltd. v. Finsbury Borough Council [East
End Dwellings Co. Ltd. v. Finsbury
Borough Council, 1952 AC 109 (HL)] ,
Lord Asquith while dealing with the
provisions of the Town and Country
Planning Act, 1947, made reference to the
same principle and observed as follows :
(AC pp. 132-33) "If you are bidden to treat
an imaginary state of affairs as real, you
must surely, unless prohibited from doing
so, also imagine as real the consequences
and incidents which, if the putative, state of
affairs had in fact existed, must inevitably
have flowed from or accompanied it. ... The
statute says that you must imagine a certain
state of affairs; it does not say that having
done so, you must cause or permit your
imagination to boggle when it comes to the
inevitable corollaries of that state of
affairs."

 24. In the present case, if one
were to apply the aforesaid principle, it is
clear that the petitioner had exercised the
option to continue with the CPF Scheme on
07.12.1987, which was beyond the cut-off
date 30.09.1987. The exercise of such
option, according to the Supreme Court in
Shashi Kiran (supra), would be non est in
law, in which case, the deeming provision
of the O.M. dated 01.05.1987 should be
given its logical conclusion. In that, the
petitioner would be deemed to have come
over to the GPF cum Pension Scheme."

14. At this stage, it would be
relevant to mention here that School of
Planning and Architecture has issued a
Circular
dated
17.08.1987
initiating
procedure for exercising option by its
employees on or before the cut off date,
i.e., 30.09.1987, therefore, they have
adopted
Office
Memorandum
dated
01.05.1987 before the cut off date and as
referred above the case of Banaras Hindu
University is factually different since it has
adopted the Scheme vide letter dated
09.04.1988 and cut off date for exercising
option was fixed as 09.07.1988, i.e., much
after the above referred two dates, i.e.,
01.05.1987 and 30.09.1987.

15. Learned Senior Advocates for
petitioners also submitted that the judgment
passed in earlier round of litigation would
not came in the way since later on law on
the issue was declared and clarified by
Supreme Court and its benefit can still be
given to petitioners on a factual aspect that
their options to continue with CPF Scheme
were non-est since it was given after the cut
off date, i.e., 30.09.1987 as mentioned in
Office Memorandum dated 01.05.1987
issued by Government of India. The date
fixed by Banaras Hindu University would
have no legal consequence.

16. Sri V.K. Upadhyay, learned
Senior Advocate assisted by Sri Ritvik
Upadhyay, Advocate and Sri Ajit Kumar
Singh, learned Senior Advocate assisted by
Sri Hem Pratap Singh, Advocate for
Respondent-Banaras
Hindu
University,
have submitted that GPF-cum-Pension
Scheme was adopted and the order dated
09.04.1988 issued by Deputy Registrar
(Administration),
Banaras
Hindu
3 All. Priyankar Upadhyaya Vs. U.O.I. & Ors.
351
University was sufficient that the Scheme
was adopted and its benefits have also been
extended. There was no requirement to
issue any other notification or make any
amendment in relevant Act, Statute or
Ordinance.

17. Learned Senior Advocates
further
submitted
that
so
far
as
implementation of judgment of Supreme
Court in University of Delhi vs. Smt.
Shashi Kiran (supra) is concerned, it
would not be applicable in the case of
petitioners since not only their earlier
similar prayer was rejected but Government
of India has taken note of financial aspect
also, therefore, at this stage prayer of
petitioners cannot be accepted. It was also
contended that factual aspects of present
cases are different, which was not the issue
before Supreme Court in University of
Delhi vs. Smt. Shashi Kiran (supra) since
Delhi University has adopted Office
Memorandum dated 01.05.1987 in its
entirety before the cut off date, i.e.,
30.09.1987 and therefore, option was
required to be submitted before said date
whereas in the case of petitioners, the
Banaras Hindu University has adopted
Scheme much after the cut off date was
over, i.e., on 09.04.1988 and last date for
option was fixed as 09.07.1988.

18. Sri Shashi Prakash Sri, learned
Senior
Advocate/
Additional
Solicitor
General of India assisted by Sri Manoj
Kumar Singh and Sri Purnendu Kumar
Singh, Advocates, has supported the
impugned orders
and
submitted
that
Banaras Hindu University has never
adopted the GPF-cum-Pension Scheme in
its true sense, since it has not amended it's
Statute or Ordinance, as the case may be,
whereas Delhi University has adopted
Scheme by a modification and fixing the
cut
off
date
as
fixed
in
Office
Memorandum issued by Government of
India, therefore, the judgment passed by
Supreme Court in University of Delhi vs.
Smt.
Shashi
Kiran
(supra)
is
distinguishable on facts of present case. He
also
submitted
that
in
aforesaid
circumstances,
judgment
passed
by
Supreme Court in University of Delhi vs.
Smt. Shashi Kiran (supra) is not
applicable so far as Banaras Hindu
University is concerned and at this stage if
prayer of petitioners is accepted after many
years of their retirement and to fix their
pension even after return of CPF amount
with interest by them, still it would be a
huge financial implication on Union
Exchequer and it would also become a
precedent
for
other
Universities
and
Institutions also, which is required to be
avoided.

19.