# Prof. Harish Chandra Chaudhary & Ors v. The Union of India & Ors

- **Citation:** (2025) 5 ILRA 1063
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-02
- **Case number:** Special Appeal No. 228 of 2025
- **Bench:** Ashwani Kumar Mishra, Praveen Kumar Giri
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prof-harish-chandra-chaudhary-ors-v-the-union-of-india-ors-53288
- **Pages:** 18

## Headnote

A.S.G.I., Sri Dhananjay Awasthi, Sri Hem
Pratap Singh, Sri Ajit Kumar Singh (Sr.
Advocate)

A.
Service
Law
-
Constitution
of
India,1950 - Article 226 - Writ - Principle
of res judicata - Applicability - Benefit of
conversion from Contributory Provident
Fund Scheme to Pension Scheme claimed
- Entitlement - Issue of entitlement was
decided in V. P. Singh's case between the
parties - Effect - Change made in the law,
how far can upset the binding nature of
decision - Held, an adjudication, inter-se
between the parties, in respect of a cause
once attaches finality, the same cannot be
revived - A previous adjudication inter-se
between the parties in respect of the same
lis
remains
operative
and
even
an
erroneous
judgment
operates
as
res
judicata, inter-se, between the parties and
that a subsequent change in law would
not invalidate such previous adjudication
- The appellants would not be entitled to
any relief even though the subsequent
judgment of the Supreme Court in the
case of Smt. Shashi Kiran supports their
claim. (Para 38, 48 and 50)
B. Service Law - Central University
Retirement Benefit Rules, 1967 - Pension
Scheme
-
Entitlement
-
Office
Memorandum
dated
1.5.1987
-
It's
applicability to the appellant, appointed
on 9.7.1990 and not in employment of
BHU on 1.1.1986 - Objection was made
against inclusion in the Contributory
Provident Fund Scheme - Effect - Held, by
virtue
of
Office
Memorandum
dated
1.5.1987,
all
those,
who
came
in
employment after 1.1.1986, were covered
under the Pension Scheme. For such
employees, there was no option available
to be included in the CPF Scheme. (Para
54 and 57)

Special Appeal no. 309 of 2025 allowed
and rest Appeal dismissed. (E-1)
1064 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

## Text

_Characters 0–39,775 of 60,858. This is a partial read: ask again with offset=39775 for what follows._

5 All. Prof. Harish Chandra Chaudhary & Ors. Vs. The Union of India & Ors.
1063
copy of letter dated 17.12.2024 issued by
Dy.
Excise
Commissioner,
Prayagraj
containing details of vehicles seized by the
department, be sent to the Chief Secretary
along with a copy of this order for
consideration
by
the
Coordination
Committee.

45.2 Let a copy of this order be
sent to the office of Home Department,
Government
of
Uttar
Pradesh
for
coordination.

45.3 Let a copy of this order be
transmitted to all the learned District
Judges of Uttar Pradesh through the
Registrar General of this Court, with a
direction to ensure that the judgment is
duly
circulated
among
all
Judicial
Officers.

45.4 Registrar General shall also
forward a copy of this judgment to the
Director JTRI, Lucknow for record and
reference.

46. Accordingly, the application is
disposed of in the terms stated above.
----------
(2025) 5 ILRA 1063
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.05.2025

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE PRAVEEN KUMAR GIRI, J.

Special Appeal No. 228 of 2025
With
Special Appeal No. 235 of 2025
And
Special Appeal No. 309 of 2025

Prof. Harish Chandra Chaudhary & Ors.
 ...Appellants
Versus
The Union of India & Ors. ...Respondents

Counsel for the Appellants:
Sri Sankalp Narain, Sri Srivats Narain, Sri
G.K. Singh (Sr. Advocate)

Counsel for the Respondents:
A.S.G.I., Sri Dhananjay Awasthi, Sri Hem
Pratap Singh, Sri Ajit Kumar Singh (Sr.
Advocate)

A.
Service
Law
-
Constitution
of
India,1950 - Article 226 - Writ - Principle
of res judicata - Applicability - Benefit of
conversion from Contributory Provident
Fund Scheme to Pension Scheme claimed
- Entitlement - Issue of entitlement was
decided in V. P. Singh's case between the
parties - Effect - Change made in the law,
how far can upset the binding nature of
decision - Held, an adjudication, inter-se
between the parties, in respect of a cause
once attaches finality, the same cannot be
revived - A previous adjudication inter-se
between the parties in respect of the same
lis
remains
operative
and
even
an
erroneous
judgment
operates
as
res
judicata, inter-se, between the parties and
that a subsequent change in law would
not invalidate such previous adjudication
- The appellants would not be entitled to
any relief even though the subsequent
judgment of the Supreme Court in the
case of Smt. Shashi Kiran supports their
claim. (Para 38, 48 and 50)
B. Service Law - Central University
Retirement Benefit Rules, 1967 - Pension
Scheme
-
Entitlement
-
Office
Memorandum
dated
1.5.1987
-
It's
applicability to the appellant, appointed
on 9.7.1990 and not in employment of
BHU on 1.1.1986 - Objection was made
against inclusion in the Contributory
Provident Fund Scheme - Effect - Held, by
virtue
of
Office
Memorandum
dated
1.5.1987,
all
those,
who
came
in
employment after 1.1.1986, were covered
under the Pension Scheme. For such
employees, there was no option available
to be included in the CPF Scheme. (Para
54 and 57)

Special Appeal no. 309 of 2025 allowed
and rest Appeal dismissed. (E-1)
1064 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:
1. U.O.I. Vs M.K. Sarkar; (2010) 2 SCC 59
2. Kurukshetra University Vs Ramesh Gupta;
(2000) 10 SCC 97
3. S. Ramachandra Rao Vs S. Nagabhushana
Rao & ors.; 2022 SCC OnLine SC 1460
4. U.O.I. Vs Madras Telephone SC & ST Social
Welfare Association, (2006) 8 SCC 662
5. B.S.N.L. & anr. Vs U.O.I. & ors.; (2006) 2
SCR 823
6. A.R. Antulay Vs R.S. Nayak & anr., (1988) 2
SCC 602
(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. These appeals arise out of a judgment
of learned Single Judge, dated 18.3.2025,
whereby learned Single Judge has refused to
extend the benefit to the writ petitioners of
the judgment rendered by Hon'ble Supreme
Court in University of Delhi Vs. Smt. Shashi
Kiran and others, 2022 (7) SCR 957. Learned
Single Judge has held that the judgment in
the case of Smt. Shashi Kiran (supra) is
though a judgment in rem, yet its benefit
cannot be extended to petitioners in the facts
of the present case.

2. Petitioners in this batch of writ
petitions are the teaching and non-teaching
staff
of
Banaras
Hindu
University
(hereinafter referred to as the 'BHU').
Some of them have also retired. Except
petitioner Akhoury Sudhir Kumar Sinha,
all other petitioners were in employment of
the BHU prior to 1.1.1986. All of them
were governed by the Central University
Retirement Benefit Rules, 1967. As per
these rules, they were entitled to benefit of
Contributory
Provident
Fund
Scheme
(hereinafter referred to as 'CPF Scheme').
They were not covered by the Pension
Scheme.

3. Central government employees
were also covered by the CPF Scheme.
They were given an option to switch over
to Pension Scheme. This option was not
exercised by all employees and some of
them continued under the CPF Scheme.
Recommendations
of
Fourth
Pay
Commission was implemented w.e.f. from
1.1.1986 for the Central Government
employees. One of the recommendation of
commission was that all CPF beneficiaries
in service on 1.1.1986 be deemed to have
come over to the pension scheme on that
date, unless they specifically opt out to
continue under the CPF scheme. This
decision was implemented vide office
memorandum dated 1.5.1987 which is
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
5 All. Prof. Harish Chandra Chaudhary & Ors. Vs. The Union of India & Ors.
1065
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.

3.7 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."

4. The Office Memorandum dated
1.5.1987
provided
that
all
CPF
beneficiaries in service as on 1.1.1986
came over to the pension scheme on that
date, unless they (CPF beneficiaries)
specifically opted to continue under the
CPF Scheme. It is clear that the office
memorandum was applicable to those who
were in service on 1.1.1986. It was made
applicable even for those employees who
retired after 1.1.1986.

5. The aforesaid office memorandum
dated 1.5.1987 fixed the cut-off date for
exercise of option to continue under the
CPF scheme as 30th September, 1987.

6. BHU on 24/26 September, 1987,
requested
the
University
Grants
Commission (hereinafter referred to as the
'UGC') to intimate it the orders on the
subject.
Further,
approval
for
implementation of the office memorandum
dated 1.5.1987 in the BHU was also
sought. Thereafter, a notification came to
be issued by the Registrar of the BHU on
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
9.4.1988, providing that employees of the
BHU would switch over to pension scheme
from CPF scheme unless option to continue
under CPF scheme is exercised latest by
9th July, 1988. This order of the Registrar
of the BHU was pursuant to a resolution
passed by the Executive Council of the
BHU, which is 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 CPP/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.
...................................................
.....................................................
"

7. The option in terms of the office
memorandum
dated
1.5.1987,
to
be
continued under the CPF Scheme was later
extended by the BHU, at its own level, to
its employees on 12.5.1995, 29.8.1995 and
4.12.1995.

8. All the writ petitioners in the
present bunch opted to continue under CPF
Scheme, as was earlier applicable upon
them from before. These persons, therefore,
did not come over to Pension Scheme.

9. It appears that the recommendations
of Fifth Pay Commission Report were
implemented
w.e.f.
1.1.1996
which
substantially
favoured
the
employees
covered under the Pension scheme. The
employees of BHU who had opted to
continue
under
CPF
scheme
made
representations to be given one more
opportunity to opt to pension scheme. A
Committee was constituted by the ViceChancellor to consider this request. The
Committee
submitted
its
report
on
13.1.2001 recommending grant of one
more opportunity to exercise such option
within a period of two months. This
recommendation was initially accepted by
the Vice-Chancellor of the BHU on 20th
March, 2001 and 18th January, 2002.
However, when the matter was taken to
Executive Council of the BHU in its
meeting held on 19/20 July, 2002, the
Council regretted to approve this decision
of the Vice-Chancellor. The request of the
BHU for permitting further opportunity to
exercise option was also rejected by the
Government of India and the UGC on
22.7.2003, 23.9.2003 and 20.10.2003. All
such decisions came to be challenged in
writ petition nos.32101 of 2004 (Dr. V.P.
Singh & Others Vs. Executive Council
Banaras Hindu University, Varanasi &
Others) and 28790 of 2004 (Professor
Mrittunjay Bhattacharyya Vs. Executive
Council, B.H.U., Varanasi & Another).
Many of the petitioners in this bunch were
also the petitioners in earlier round of
litigation inter-se between the parties on
the same subject. In para 24 of the counter
affidavit BHU has stated that petitioner
nos.1, 4, 5, 6, 7, 8, 9, 13, 15, 16, 18, 19, 21,
22, 23, 25 & 26 were the petitioners in writ
petition no.32101 of 2004.

10. The petitioners in the earlier round
of litigation contended that Fifth Pay
Commission had drastically amended the
pay package in favour of the employees
5 All. Prof. Harish Chandra Chaudhary & Ors. Vs. The Union of India & Ors.
1067
who had opted for Pension Scheme in
comparison to those who continued under
the CPF Scheme.

11. A Division Bench of this Court by
a detailed judgment dismissed the writ
petition after noticing that the BHU is fully
funded by the Central Government, through
the University Grants Commission, and
that no approval was granted either by the
UGC or by the Central Government to
allow additional option to be given to the
employees to switch over from CPF
Scheme to Pension Scheme. This division
bench judgment has attained finality interse between the parties.

12. The plea to be given another
chance to opt for pension scheme, in place
of CPF scheme, was also pressed by
employees of Delhi University before the
Delhi High Court. The Delhi High Court
allowed such plea on the premise that
exercise of option to switch over to pension
scheme, by the Vice-Chancellor, after 30th
September, 1987 was non est.

13. The Executive Council of the
BHU, relying upon the judgment of Delhi
High Court dated 30.4.2014, passed a
resolution on 29.6.2014, extending the
judgment of Delhi High Court to the
employees
of
BHU.
Yet
another
opportunity was given to the employees of
BHU to switch over to the pension scheme
from CPF scheme.

14. Learned Single Judge of Delhi
High
Court
in
his
judgment
dated
30.4.2014 categorized the employees of
Delhi
University
in
three
different
capacities i.e. (i) where no option was
exercised by the employee to continue
under CPF scheme yet deductions under CPF
scheme continued (referred to as Virmani's
Case); (ii) option to continue under CPF
scheme was exercised after 30th September,
1987 (referred to as N.C. Bakshi's Case); (iii)
where option was exercised before 30th
September, 1987 to continue under the CPF
scheme (referred to as Shashi Kiran Batch).
Learned Single Judge allowed the writ
petitions in the first two category while writ
petitions falling in the third category were
dismissed.

15. The judgment of the learned Single
Judge was challenged in letters patent appeal
before the Delhi High Court which came to
be decided on 24th August, 2016. The
Division Bench while affirming the judgment
of learned Single Judge in first two category
of cases also allowed the claim in third
category of cases i.e. Shashi Kiran batch of
petitions.

16. The Ministry of Human Resource
Development,
Department
of
Higher
Education, Government of India also issued
administrative instructions to the Delhi
University to take appropriate action in light
of the judgment of Delhi High Court.

17. The Executive Council of the BHU
though had passed the resolution dated
29.6.2014 to consider request of employees
in terms of the judgment of learned Single
Judge of Delhi High Court yet, before it
could be implemented, the council was
apprised that an appeal was filed against
judgment of learned Single Judge dated
30.4.2014.
The Executive
Council
on
29.9.2015 therefore resolved to put up the
matter before it with updates on the appeal so
filed before Delhi High Court. Accordingly,
after the Division Bench judgment was
delivered on 24.8.2016 that the issue was
again placed before the Executive Council on
30.3.2017. The Executive Council passed
following resolutions:-
1068 INDIAN LAW REPORTS ALLAHABAD SERIES

"Resolved
that
request
for
conversion of CPF to GPF be approved
and regulated in terms of judgment of the
Hon'be High Court Delhi dated 24.8.2016
and orders dated 23.1.2017 of MHRD on
the
issue
under
intimation
to
UGC/MHRD."

18. The Division Bench judgment
dated 24.8.2016 was then carried in appeal
before the Hon'ble Supreme Court. All
three category of cases were decided by the
Court vide judgment dated 10.5.2022. The
judgment rendered by the Division Bench
of Delhi High Court was affirmed with
slight
modification
of
recouping
the
contribution under CPF scheme with 8%
simple interest per annum. The judgment of
Supreme Court in Smt. Shashi Kiran
(supra) essentially forms the basis of
appellant's claim to be allowed to convert
to Pension Scheme.

19. In the facts of the present case,
we are dealing with the second category
of cases (except Special Appeal No. 309
of 2025) where option to continue under
CPF Scheme was exercised after the cutoff
date
indicated
in
the
Office
Memorandum dated 1.5.1987 i.e. 30th
September, 1987. This category of cases
has been categorized by the Supreme
Court as N.C. Bakshi's Case.

20. Interestingly, when the BHU
took the decision to follow the judgment
of learned Single Judge of Delhi High
Court, it had neither consulted the UGC,
nor the views of Central Government
were taken in the matter. No approval
was obtained from them, either. The
impact of the judgment rendered by
Division Bench of this Court in inter-se
between the parties, which had attained
finality, was also not examined.

21. The Vice-Chancellor of the BHU
sent a letter on 29.9.2022 to the Secretary,
Department
of
Higher
Education,
Government of India, seeking consent of
the Ministry to migrate employees under
CPF to GPF Pension Scheme in terms of
the adjudication made by the Supreme
Court of India in appeals arising out of
Delhi High Court Judgment. This request
of the BHU was not acceded to by the
Central Government.

22. Writ-A No.15158 of 2022 was
therefore filed by some of the petitioners in
respect of the cause relating to migration
from CPF Scheme to GPF Scheme. This
writ
petition
was
disposed
of
on
29.11.2022,
directing
the
Central
Government to verify correct facts and pass
appropriate orders in respect of such cause.
It was also provided that if the amount is
found due and payable the same shall be
paid within a period of three months or else
it may attract interest @ 8% per annum.

23. It is thereafter that the Ministry of
Education, Government of India, passed an
order on 3.4.2023, declining to extend the
benefit of migration from CPF Scheme to
GPF
Scheme
on
the
strength
of
adjudication made in respect of the
employees of Delhi University. The Central
Government was of the view that the
judgment rendered in respect of the
employees of Delhi University is not
applicable to other Central Universities.

24. Subsequent order of 26.4.2023
came to be passed by the Central
Government stating that in respect of
employees of Delhi University there was a
separate order dated 25.5.1987 in respect of
adoption of office memorandum, dated
1.5.1987. This was, therefore, taken as an
additional
ground
to
non-suit
the
5 All. Prof. Harish Chandra Chaudhary & Ors. Vs. The Union of India & Ors.
1069
appellants. The order of 3.4.2023 and
26.4.2023 were consequently assailed in
the writ petitions before this Court.

25. Learned Single Judge has observed
that the judgment of Supreme Court in
University of Delhi Vs. Smt. Shashi Kiran
(supra) is distinguishable on facts. The
learned Judge has also observed that
though
the
orders
of
the
Central
Government are not sustainable for the
grounds mentioned therein since the BHU
had also adopted the Scheme in the present
case and the judgment of Supreme Court
was a judgment in rem and not in personam
and
the
contrary
view
of
Central
Government is not correct, yet facts being
distinguishable, the appellants have been
held not entitled to any relief. The writ
petitions have accordingly been dismissed.

26. Sri G.K. Singh, learned Senior
Counsel for the appellants submits that the
switch over from CPF to pension scheme
under office memorandum dated 1.5.1987,
was automatic, unless the employee opted
otherwise. This option was to be exercised
only till 30.9.1987. In view of the law laid
down by the Supreme Court in University
of Delhi Vs. Smt. Shashi Kiran and others,
2022 (7) SCR 957 any option exercised
after
30.9.1987
is
meaningless
and,
therefore, all the appellants are entitled to
pension scheme. He also submits that the
appellants undertake to refund the benefits
received under the CPF Scheme alongwith
8% interest.

27. Sri Singh further argues that the
previous adjudication made by the Division
Bench in 2011 has lost its efficacy since the
employer i.e. BHU has subsequently
resolved to take a different view in the
matter, based upon the decision of Delhi
High Court, as affirmed by the Supreme
Court and, therefore, the controversy for all
practical purposes stands concluded by the
judgment of the Supreme Court in Smt.
Shashi Kiran (supra).

28. Per contra, Sri Ajit Kumar Singh,
learned Senior Counsel assisted by Sri H.P.
Singh for the BHU and Sri S.P. Singh,
learned Additional Solicitor General of
India assisted by Sri Manoj Kumar Singh
oppose the prayer made in the appeal on
the ground that controversy raised before
the learned Single Judge stood previously
adjudicated by the Division Bench of this
Court and, therefore, the subsequent
judgment of Delhi High Court and the
Supreme Court cannot have the effect of
reopening the issue. The controversy once
stood settled against the appellants it
cannot be permitted to be revived. It is also
urged by the respondents that learned
Single Judge has rightly held that facts of
the present case are distinguishable.

29. We have heard Sri G.K. Singh,
Senior Advocate, assisted by Sri Sankalp
Narain, learned counsel for the appellants;
Sri Ajit Kumar Singh, Senior Advocate,
assisted by Mr. Hem Pratap Singh, learned
counsel for BHU; Sri S.P. Singh, learned
Additional Solicitor General of India
assisted by Sri Manoj Kumar Singh on
behalf of the Union of India and perused
the materials on record.

30. The appellants in this bunch of
appeals (excluding Special Appeal No. 309
of 2025) were in employment of the BHU
on 1.1.1986. These persons had exercised
option to continue under the CPF Scheme.
Their inclusion under the CPF Scheme was
pursuant
to
the
Central
University
Retirement Benefit Rules, 1967. The
submission on their behalf is that the
exercise of option by them was after the
1070 INDIAN LAW REPORTS ALLAHABAD SERIES
cut-off date in Office Memorandum, dated
1.5.1987. It is submitted that exercise of
option after the cut-off date i.e. 30th
September, 1987, cannot be treated to be a
valid option in law and, therefore, they are
entitled to come over to the pension scheme
on terms similar to the terms indicated by
Delhi High Court in N.C. Bakshi's case.
This position in law has otherwise been
approved by the Supreme Court in Smt.
Shashi Kiran (supra).

31. So far as the factual aspect with
regard to exercise of option by the
appellants after the cut-off date i.e. 30th
September, 1987 is concerned, there is no
issue on it. Even the respondents admit that
such option was exercised by them after the
cut-off date. In terms of the office
memorandum switch over from CPF to
Pension Scheme was automatic. Unless
option was exercised within the time
indicated in the Office Memorandum, dated
1.5.1987, the switch over to pension
scheme was the consequence. Learned
Single Judge has also accepted appellants
claim in this regard.

32. Having accepted the appellants
contention that exercise of option by them
to continue under CPF Scheme was
impermissible
under
the
Office
Memorandum, dated 1.5.1987, yet the
relief prayed for has been denied in the
facts of the case. A perusal of the judgment
of the learned Single Judge would make it
apparent that the claim of the appellants has
been accepted on merits. The discussions
contained in the judgment of learned Single
Judge in paragraphs 21, 22 & 23 are
reproduced:-

"21. The factual aspect of the
case which appears to be undisputed is that
the Union of India has issued Office
Memorandum dated 01.05.1987 that CPF
beneficiaries who were in service on
01.01.1986 and were still in service on the
date of issue of Office Memorandum i.e.,
01.05.1987 will be deemed to come over in
GPF-cum-Pension Scheme, except they
have exercised their option to remain in
CPF
Scheme
by
30.09.1987
and
interpretation of said Office Memorandum
as held by Supreme Court in University of
Delhi vs. Smt. Shashi Kiran (supra) so far
as case of present petitioners is concerned,
is that any option given subsequent to cut
off date, i.e., 30.09.1987 to remain in CPF
Scheme, would be non-est and according to
petitioners since they have not given their
option on or before 30.09.1987, therefore,
they deemed to have come over to GPFcum-Pension Scheme despite admittedly
they have given option after said date.
Court has to consider effect of dates of
adoption of Scheme by Banaras Hindu
University, i.e., 09.04.1988 and cut off date
being fixed as 09.07.1988.

22. Learned Senior Advocates for
petitioners have pressed their arguments
heavily on an interpretation that petitioners
have given their option to remain in CPF
Scheme beyond the cut off date, i.e.,
30.09.1987, therefore, their options were
non-est and they were already deemed to
switch over in GPF-cum-Pension Scheme
and they are ready that if their prayers are
accepted,
they
will
return
Union's
contribution of CPF within a very short
period alongwith reasonable interest. The
date fixed by Banaras Hindu University to
give
option
was
beyond 30.09.1987,
therefore,
it
would
have
no
legal
consequence.

23. The Court is of the view that
there is no dispute so far as above referred
position of law is concerned and as held by
Supreme Court in University of Delhi vs.
Smt. Shashi Kiran (supra) in very specific
5 All. Prof. Harish Chandra Chaudhary & Ors. Vs. The Union of India & Ors.
1071
words. Therefore, the law so far as option
given subsequent to 30.09.1987 as held by
Supreme Court has to be followed.
However, few facts make present cases still
distinguishable."

33. Learned Single Judge has relied
upon the judgment of Delhi High Court in
Neerja Tiku vs. School of Planning and
Architecture and another, 2024:DHC:2891
to hold that the decision of Supreme Court
in University of Delhi Vs. Smt. Shashi
Kiran (supra), is a judgment in rem and not
in personam. Learned Single Judge has also
taken note of the fact that the grounds
urged by the Central Government to reject
the resolution of BHU for extending the
benefit of Delhi High Court also is
unsustainable. Therefore, on merits, we
find that learned Single Judge has accepted
the claim of appellants. The only reason on
which relief has been denied to the
appellants is the submission of the
respondents noticed in para 29 of the
judgment, which is reproduced:-

"29. Court also takes note that
similar prayer of petitioners were already
rejected by this Court vide judgment dated
12.08.2011 and only on ground that
subsequently a different interpretation of
law was given by a Single Bench of Delhi
High Court, which was affirmed by
Division Bench and thereafter affirmed by
Supreme Court in University of Delhi vs.
Smt. Shashi Kiran (supra) 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."

34. We have already noticed that
majority of the appellants had earlier made
a claim before the BHU for grant of yet
another opportunity to switch over to
pension scheme. Persons such as appellants
constitute a class in themselves inasmuch
as their claim to switch over to pension
scheme, from CPF scheme, is identically
placed. Most of such employees of BHU
(including majority of appellants in this
bunch) had raised their claim in this regard.
This plea of the appellants was considered
by a Committee and the Vice-Chancellor
also
approved
such
recommendations
subject to its approval by the Executive
Council. The Executive Council, however,
regretted to approve the orders of the ViceChancellor for grant of such opportunity to
convert from CPF to Pension Scheme.
Most of the appellants then came to this
Court by filing Writ Petition Nos. 32101 of
2004 and 28790 of 2004. The Division
Bench of this Court took note of the fact
that the writ petitioners were covered by
the Central University Retirement Benefit
Rules,
1967
which
provided
for
applicability of CPF Scheme. Option was
also exercised by these persons, later, to
continue with the CPF Scheme. The
Division Bench of this Court relied upon
the judgment of the Supreme Court in
Union of India Vs. M.K. Sarkar, (2010) 2
SCC 59, wherein the Supreme Court had
turned down the representation made after
22 years of retirement to switch over to
pension scheme. This Court in Dr. V.P.
Singh (supra) also took note of the fact that
new
pension
scheme
had
become
applicable to all employees joining Central
Government after 1.1.2004. It was in this
context that this Court in Dr. V.P. Singh
refused to grant relief to the employees of
BHU to switch over to pension scheme
from CPF Scheme. Many of the appellants
had
also
retired
by
then.
These
considerations prevailed with the Court in
rejecting the claim of the petitioners. The
1072 INDIAN LAW REPORTS ALLAHABAD SERIES
writ petition before the Division Bench was
filed by almost 100 employees. The
Judgment of this Court in Dr. V.P. Singh's
case has attained finality. Most of the
appellants in the present bunch were also
the petitioners in the earlier round of
litigation. They have acquiesced to the
division bench judgment and have not filed
any appeal against it before the Supreme
Court. The thrust of the respondents
submission, therefore, is that the appellants
cannot be permitted to re-agitate the issue
which has attained finality inter-se between
the parties against them. Those who had
not joined in the writ of Dr. V.P. Singh are
alleged to have acquiesced to the decision
of the executive council not to extend any
fresh option to opt for pension scheme.

35. Sri G.K. Singh appearing for the
appellants attempted to wriggle out of this
objection by stating that subsequent in
point of time the Executive Council has
taken a decision to extend the benefit of
Delhi High Court to the employees of the
BHU. He submits that once the BHU itself
has accepted the claim of such employees,
subsequently, the plea of res judicata based
upon earlier adjudication by this Court in
Dr. V.P. Singh case cannot be pressed
against the appellants. It is thus urged that a
fresh cause has arisen to the appellants and
the circumstance relating to dismissal of
the previous writ petition cannot come in
the way of grant of relief to the appellants.

36. Sri Sankalp Narain, Advocate
assisting Sri G.K. Singh has placed reliance
upon a judgment of the High Court in
Kurukshetra University Vs. Ramesh Gupta,
(2000) 10 SCC 97 to contend that in
somewhat identical circumstances where
the University had earlier declined relief to
the employee concerned and such decision
was also affirmed with dismissal of the writ
petition, yet the subsequent decision of the
University to extend such benefit was
directed to be enforced. The judgment of
the Court in Ramesh Gupta (supra) is
reproduced:-

"The University has assailed the
decision of the High Court of Punjab and
Haryana calling upon the University to
enforce the resolution of the Executive
Council
dated
26-4-1994
by
which
resolution the Executive Council approved
the recommendation of Justice Sodhi and
decided the salary to be paid to an
employee of the University. From the facts
narrated, it appears that earlier the
University itself did consider the question
of salary to the employee concerned and by
a resolution dated 16-11-1985 did not
grant the relief in question. That resolution
of the University dated 16-11-1985 became
final inasmuch as the writ petition filed
against the same was dismissed and special
leave petition to this Court was also
dismissed in 1986. Notwithstanding the
finality to the aforesaid decision of the
University a fresh representation on being
filed by the employee in the year 1994, the
Executive Council thought it fit to refer the
said representation to a committee headed
by Justice Sodhi, and that Committee on
consideration of all the relevant materials
decided as to what the salary of the
employee ought to be and with effect from
which date. The said recommendation of
the Justice Sodhi Committee was given
approval by the Executive Council by its
resolution
dated
26-4-1994.
But
notwithstanding the aforesaid resolution of
the Executive Council, as the same was not
implemented
by
the
University,
the
employee concerned approached the High
Court for issuance of writ of mandamus to
the University to follow the directions
contained in the resolution. The High Court
5 All. Prof. Harish Chandra Chaudhary & Ors. Vs. The Union of India & Ors.
1073
by the impugned order having issued the
necessary direction, the University has
approached
this
Court.
Mr
Sanghi
appearing for the University contends that
the High Court had no jurisdiction to issue
any mandamus to the University to grant
relief to the employee concerned as per the
resolution of the Executive Council dated
26-4-1994. He, further, contends that the
said resolution of the Executive Council is
non est, the same not being in accordance
with the provisions of the Statute. On
examining the relevant materials of the
University Statute, we do not find any force in the
same. The Executive Council is a part of the
University itself under the University Statute. The
Chancellor has the power to annul any
proceedings of any authority of the University
which in his opinion is not in conformity with the
Act, Statute or the Ordinance. The resolution of
the Executive Council being of the year 1994 and
the Chancellor not having exercised that power
in accordance with the Statute, it can well be
assumed that the said resolution is in conformity
with the provisions of the Statute or the
Ordinance or at least the Chancellor himself
never thought it fit to interfere with the said
resolution of the Executive Council. Once the
resolution of the Executive Council is not being
annulled by the Chancellor in exercise of his
powers, then the benefits flowing from that
resolution can certainly be enforceable by a
court of law by issuing a mandamus to the
University, who is no other than an authority on
whom a writ can be issued. We, therefore, see no
infirmity with the impugned direction of the High
Court so as to be interfered with by this Court.
The special leave petition is dismissed."

37. Following questions, therefore,
emerge for our consideration in the present
appeal:-

(i) whether appellants claim is
barred by principles of res-judicata or
passing of subsequent resolutions by the
BHU on 29th June, 2014 and 30th March,
2017 has the effect of granting fresh cause
to the appellants to revive their claim,
notwithstanding rejection of such claim by
this Court in the case of Dr. V.P. Singh
(supra);

(ii)
whether
appellants
are
entitled to the relief prayed for by them in
this appeal in view of the judgment of
Hon'ble Supreme Court in Smt. Shashi
Kiran (supra).

38.
It
is
well
settled
that
an
adjudication, inter-se between the parties,
in respect of a cause once attaches finality,
the same cannot be revived. Appellants in
this bunch of appeals were either the
petitioners in the previous round of
litigation in the case of Dr. V.P. Singh or
those who acquiesced to the decision of
executive council not to extend fresh
opportunity to switch over from CPF
scheme to pension scheme. We have
already held that such persons constituted a
class in themselves and were represented
by almost 100 teachers/employees. Few of
those who had not approached this Court,
then, are equally covered on the principles
of acquiescence.

39. A chart has been handed over to
the Court by counsel for the BHU
informing that 659 employees were in
service of BHU on 1.1.1986. 130 out of the
total employees in service of BHU on
1.1.1986 opted to continue in CPF Scheme
by exercising option pursuant to orders of
the BHU dated 9.4.1988 and 12.5.1995.
529 employees did not exercise any option
or chose to switch over from CPF to GPF
Scheme. As per the appellants, the actual
number is 121 as of now. Out of them, 44
are seeking migration from CPF to pension
scheme. More than 100 persons from this
1074 INDIAN LAW REPORTS ALLAHABAD SERIES
class of persons had approached this Court
by filing writ petition earlier in the case of
Dr. V.P. Singh (supra) for switching over
to pension scheme. It is, therefore, apparent
that the previous adjudication by the
Division Bench of this Court in Dr. V.P.
Singh virtually encompassed all those
persons who wanted to switch over from
CPF to Pension Scheme. Others, who did
not join the writ, at that stage, apparently
acquiesced to their continuance under the
CPF Scheme. Viewed from both the
aspects, we are of the view that the
appellants who were or not the writ
petitioners in the previous round of
litigation are equally bound by the
judgment of the Division Bench in the case
of Dr. V.P. Singh (supra).

40.
The
Division
Bench
while
dismissing the writ petition of Dr. V.P.
Singh (supra), noticed the fact that the
BHU is fully funded by the Central
Government
and
is
receiving
100%
maintenance grant. The BHU is also bound
by the decisions of the UGC. In para 17,
the Division Bench has observed that in
matters of financial discipline the BHU is
bound by the decisions taken by the UGC
which fully funds the BHU. Observations
made by the Division Bench in Paragraphs
16 & 17 of the judgment rendered in Dr.
V.P. Singh (supra) are reproduced:-

"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.