# UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC

- **Citation:** [2022] 7 S.C.R. 957
- **Court:** Supreme Court of India
- **Decided:** 2022-05-10
- **Case number:** Civil Appeal Nos. 3797-3809 of 2022
- **Bench:** Uday Umesh Lalit, Vineet Saran
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/university-of-delhi-v-smt-shashi-kiran-ors-etc-36372
- **Pages:** 48

## Headnote

Service Law: Pensionary benefits - Contributory Provident
Fund-CPF and General Provident Fund and Pension Scheme-GPF
- Shift from CPF to GPF after the cut-off date - On facts, issuance
of Notification by the University on 25.05.1987 that all CPF
beneficiaries in service on 01.01.1986 would be deemed to have
"come over" to GPF under Statute 28-A unless such employees had
opted to continue under CPF - By cut-off date, of 30.09.1987, 2611
employees of the University opted to continue under CPF while the
rest of the employees, were deemed to have "come over" to GPF -
Thereafter, grant of extensions for exercising the option to remain
under CPF wherein option exercised by 626 employees - University
kept extending the cut off date for switchover from CPF to GPF -
Cut off date for exercise of option under the last notification was
31.01.1999 - 2469 employees exercised their option for switchover
from CPF to GPF - After the deadline the option given for switchover
was incorrect - Writ petition by employees, those who did not exercise
their choice, but continued to make payment of contribution towards
CPF (first batch), employees who chose CPF in the first two
extensions but later wanted to shift to GPF (second batch), and
employees who chose CPF before the cut-off date but wanted to
change to GPF (third batch) - Case of first and second batch
allowed - However, as regards the third batch, the Single Judge
held that the employees having consciously exercised the option to
be under CPF, their prayer of switchover cannot be accepted
whereas the Division Bench held that switch-over to the Pension
Scheme was permitted upto 31.12.2003 to several other autonomous
institutions, thus, denying the right to opt to the Pension Scheme in
the case of the third batch unsustainable - On appeal, held:
Differential treatment afforded to those 2469 employees as against
the employees in third batch of cases, not founded on any rationale
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- If those 2469 employees could be afforded chance to exercise an
option of switchover to GPF, even though they had consciously
opted to be under CPF, on principle of parity or equality, the case
was certainly made out - Going by the intent of the notification,
those who were to opt for CPF, were an exception and the general
rule was that everybody after 01.01.1986 would normally be covered
by GPF - In the third batch of cases, the concern is with only 75
persons - Bulk of people namely 2469 employees were granted the
choice of reverse switchover and they were allowed all the benefits
under GPF - When the notification dated 01.05.1987 was issued,
the authorities were conscious of the possibility that all the employees
may 'come over' to GPF and accordingly the fund was constituted
and the affairs were arranged - Shift of those 75 employees would
not in any way affect the strength and the character of the fund -
Thus, the decision by the Division Bench of the High Court in the
third batch does not call for any interference except to the extent of
direction for recouping of the contribution under CPF with 8% simple
interest pa.
Disposing of the appeals, the Court
HELD: 1.1 The common thread which ran through the
decisions of the Single Judge pertaining to three batches of cases,
was that the text of the notification dated 01.05.1987 was clear
that if no option was exercised by the concerned employees before
the cut-off date, they would be deemed to have 'come over' to
GPF. It was only a positive option exercised by the employees to
continue to be under CPF which could have departed from such
deeming provision. Once exercised, the option was final and as
such, there could be no switchover from those who had
consciously opted to be under CPF. Further, relying on the
decision in S.L. Verma, it was observed that any exercise of option
after the deadline or the cut-off would be inconsequential. It was
on this premise that the cases in R.N. Virmani batch of cases and
N.K.

## Text

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 [2022] 7 S.C.R. 957
957
UNIVERSITY OF DELHI
v.
SMT. SHASHI KIRAN & ORS. ETC.
(Civil Appeal Nos. 3797-3809 of 2022)
MAY 10, 2022
[UDAY UMESH LALIT AND VINEET SARAN, JJ.]
Service Law: Pensionary benefits - Contributory Provident
Fund-CPF and General Provident Fund and Pension Scheme-GPF
- Shift from CPF to GPF after the cut-off date - On facts, issuance
of Notification by the University on 25.05.1987 that all CPF
beneficiaries in service on 01.01.1986 would be deemed to have
"come over" to GPF under Statute 28-A unless such employees had
opted to continue under CPF - By cut-off date, of 30.09.1987, 2611
employees of the University opted to continue under CPF while the
rest of the employees, were deemed to have "come over" to GPF -
Thereafter, grant of extensions for exercising the option to remain
under CPF wherein option exercised by 626 employees - University
kept extending the cut off date for switchover from CPF to GPF -
Cut off date for exercise of option under the last notification was
31.01.1999 - 2469 employees exercised their option for switchover
from CPF to GPF - After the deadline the option given for switchover
was incorrect - Writ petition by employees, those who did not exercise
their choice, but continued to make payment of contribution towards
CPF (first batch), employees who chose CPF in the first two
extensions but later wanted to shift to GPF (second batch), and
employees who chose CPF before the cut-off date but wanted to
change to GPF (third batch) - Case of first and second batch
allowed - However, as regards the third batch, the Single Judge
held that the employees having consciously exercised the option to
be under CPF, their prayer of switchover cannot be accepted
whereas the Division Bench held that switch-over to the Pension
Scheme was permitted upto 31.12.2003 to several other autonomous
institutions, thus, denying the right to opt to the Pension Scheme in
the case of the third batch unsustainable - On appeal, held:
Differential treatment afforded to those 2469 employees as against
the employees in third batch of cases, not founded on any rationale
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- If those 2469 employees could be afforded chance to exercise an
option of switchover to GPF, even though they had consciously
opted to be under CPF, on principle of parity or equality, the case
was certainly made out - Going by the intent of the notification,
those who were to opt for CPF, were an exception and the general
rule was that everybody after 01.01.1986 would normally be covered
by GPF - In the third batch of cases, the concern is with only 75
persons - Bulk of people namely 2469 employees were granted the
choice of reverse switchover and they were allowed all the benefits
under GPF - When the notification dated 01.05.1987 was issued,
the authorities were conscious of the possibility that all the employees
may 'come over' to GPF and accordingly the fund was constituted
and the affairs were arranged - Shift of those 75 employees would
not in any way affect the strength and the character of the fund -
Thus, the decision by the Division Bench of the High Court in the
third batch does not call for any interference except to the extent of
direction for recouping of the contribution under CPF with 8% simple
interest pa.
Disposing of the appeals, the Court
HELD: 1.1 The common thread which ran through the
decisions of the Single Judge pertaining to three batches of cases,
was that the text of the notification dated 01.05.1987 was clear
that if no option was exercised by the concerned employees before
the cut-off date, they would be deemed to have 'come over' to
GPF. It was only a positive option exercised by the employees to
continue to be under CPF which could have departed from such
deeming provision. Once exercised, the option was final and as
such, there could be no switchover from those who had
consciously opted to be under CPF. Further, relying on the
decision in S.L. Verma, it was observed that any exercise of option
after the deadline or the cut-off would be inconsequential. It was
on this premise that the cases in R.N. Virmani batch of cases and
N.K. Bakshi batch of cases were allowed by the learned Single
Judge. As regards Shashi Kiran batch of cases, the Single Judge
observed, that once the conscious decision was taken and option
was exercised to continue to be under CPF, there was "no room
for any come back situation." The cases in the third batch were
therefore, rejected. [Para 12][995-E-H; 996-A]
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1.2 As regards, the 2469 employees who were given facility
of such switchover after the cut-off date, the Single Judge
observed that though they had also consciously opted to be under
CPF, were not before the Court, and as such, their cases had to
be left untouched. It is a matter of record and which aspect is
clear from the communications referred to that most of those
2469 employees, at the time of retirement, were given all the
benefits that were available to those who had opted to be under
GPF. Thus, those 2649 employees were certainly allowed to avail
the benefit of switchover which was not granted in favour of the
employees in the third batch of cases. Affirming the view taken
by the Single Judge in the first two batches of cases, the Division
Bench set aside the view of the Single Judge only in the third
batch of cases i.e. in Shashi Kiran batch of cases. As the
observations made by the Division Bench indicate, the matter
was placed on the ground of discrimination and principles of
equality. [Paras 13, 14][996-B-D]
1.3 According to the notification dated 01.05.1987 two
situations were contemplated. First, the deeming provision 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 Single Judge and the Division Bench of the High Court,
as no conscious option was exercised by the cut-off 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. [Para 15][996-E-G]
1.4 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
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC.
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no switchover could be allowed after the cut- off date, the
decisions rendered by the 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 Single Judge
and the Division Bench. Therefore, the appeal in N.C. Bakshi
batch of cases is dismissed. [Para 15][996-H; 997-A-B]
1.5 As indicated by the University in its affidavit filed after
the Order dated 02.03.2020 was passed by this Court, 2611
employees had opted to be under CPF Scheme by the cut-off
date, i.e. by 30.09.1987. Additionally, 626 employees exercised
the option to be under CPF after the original cut-off, but within
initial two extensions granted by the University. Thus, as against
the entire body of employees of the University, 3237 (2611+626)
employees had exercised the option to be under CPF. Out of
these 3237 employees, by virtue of further extensions granted
by the University, about 2469 employees exercised the reverse
option and opted to "come over" to GPF, leaving only 768 (32372469) employees to be under CPF. The answers to queries 'd'
and 'e' given by the University in its affidavit indicate that the
number of employees in CPF Scheme was 86 while the petitioners
in Shashi Kiran batch were 75. Thus, the concern is with 75 original
petitioners in Shashi Kiran batch of cases. [Para 17][997-C-E]
1.6 As the Judgment of the Division Bench discloses, the
matter was considered by it from the standpoint of discrimination
between the same category of persons, that is to say, those who
had opted to be under CPF. The different groups in the same
category were:- those who had not exercised any option but
continued to make payment of contribution towards CPF (R.K.
Virmani batch of cases); those who exercised the option to be
under CPF but the option was exercised after the cut-off. Since
the option was exercised after the cut-off, they were deemed to
have 'come over' to GPF and were granted benefit (N.C. Bakshi
batch of cases); and those who consciously exercised the option
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to be under CPF; but taking advantage of further options granted
through 11 extensions to switchover, had been allowed to 'come
over' to GPF (2469 employees).It was against these three sub
categories coming from the same category of employees that the
argument of discrimination was considered by the Division Bench.
[Paras 20, 21][1002-E-H; 1003-A]
1.7 The matter was further considered by the Division
Bench in the context of the employees of educational institutions
such as IITs, who are directly under the Central Government,
just as the employees of the University, which is a Central
University. If the option was allowed to be exercised by granting
extension to the employees of the other educational institutions,
the Division Bench did not find any reason why similar choice/
option could not be given to the employees in Shashi Kiran batch
of cases. [Para 21][1003-B-C]
1.8 The differential treatment afforded to those 2469
employees as against the employees in Shashi Kiran batch of
cases, was not founded on any rationale. No justifiable reason
was coming forth. If those 2469 employees could be afforded
chance to exercise an option of switchover to GPF, even though
they had consciously opted to be under CPF, on principle of parity
or equality, the case was certainly made out. [Para 22][1003-DE]
1.9 The matter would be considered from the perspective
of financial impact if the decision of the Division Bench is affirmed.
According to the notification dated 01.05.1987, the employees
joining the service after 01.01.1986 would always be under GPF.
With respect to those who were in service on 01.01.1986, said
employees would be deemed to have "come over" to GPF unless
an option to continue to be under CPF was consciously exercised
before the cut-off date. Thus, when the Scheme was framed and
was sought to be implemented, the concerned authorities must
have taken into account the entire magnitude such as, the number
of employees and the likelihood of impact on the management of
the fund, so that reasonable returns can be effected by way of
pension upon retirement of such persons. Going by the intent of
the notification, those who were to opt for CPF, were an exception
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC.
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and the general rule was that everybody after 01.01.1986 would
normally be covered by GPF. It is in this context that the number
of original petitioners in Shashi Kiran batch of cases has to be
seen. The concerned is with only 75 persons. On the other hand,
the bulk of people namely 2469 employees were granted the
choice of reverse switchover and they were allowed all the
benefits under GPF. It can reasonably be said that when the
notification dated 01.05.1987 was issued, the authorities were
conscious of the possibility that all the employees may 'come
over' to GPF. With that possibility in mind, the fund was constituted
and the affairs were arranged. The shift of those 75 employees
would not in any way affect the strength and the character of the
fund if a direction that the entire contribution made by the
authorities be returned with reasonable rate of interest is issued.
These 75 petitioners had approached the Court in the year 2010.
At this length of time, it is not as if any floodgates are going to
open and there will be drain on the resources of the State. A
direction can, therefore, be issued, as was done by the Single
Judge in his Judgment in R.N. Virmani batch of cases and which
aspect was mentioned in the letter dated 23.01.2017 referred to
in paragraph 8, for recouping the contribution under CPF with
8% simple interest per annum. [Paras 23-24][1003-E-H; 1004A-D]
1.10 Considering the circumstances on record, the decision
rendered by the Division Bench of the High Court in Shashi Kiran
batch of cases does not call for any interference except to the
extent of direction for recouping of the contribution under CPF
with 8% simple interest per annum. It is possible that at this
length of time, some of the employees in Shashi Kiran batch of
cases may not be interested in switchover to GPF. But an option
must be afforded to them in such manner as the authorities deem
appropriate. [Para 25][1004-E]
Krishena Kumar vs. Union of India and others (1990)
4 SCC 207 : [1990] 3 SCR 352; Rajasthan Rajya Vidyut
Vitran Nigam Limited vs. Dwarka Prasad Koolwal and
others (2015) 12 SCC 51 : [2014] 13 SCR 492 -
distinguished.
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Union of India and another v. S.L. Verma and others
(2006) 12 SCC 53 : [2006] 9 Suppl. SCR 770; D.S.
Nakara vs. Union of India (1983) 1 SCC 305 : [1983]
2 SCR 165 - referred to.
Case Law Reference
[2006] 9 Suppl. SCR 770
referred to
Para 6 (ii)
[1983] 2 SCR 165
referred to
Para 18
[1990] 3 SCR 352
distinguished
Para 21
[2014] 13 SCR 492
distinguished
Para 21
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.37973809 of 2022.
From the Judgment and Order dated 24.08.2016 of the High Court
of Delhi at New Delhi in LPA Nos.410-414, 416-418, 558, 594, 667, 672
and 780 of 2014.
With
Civil Appeal Nos.3850, 3852, 3851 and 3810-3849 of 2022.
Ms. Madhavi Divan, ASG, Aman Sinha, P. S. Patwalia, K. K. Rai,
Anip Sachthey, Meet Malhotra, Sr. Advs., Sanjai Kumar Pathak, Nupoor
Sinha, Ms. Shashi Pathak, Arvind Kumar Tripathi, Ms. Vishakha, Parthiv
Goswami, Sahil Monga, Gurmeet Singh Makker, Ms. Shefali Jain, Rajesh
Prasad Singh, S. M. Deenadayalan, Ms. T. Archana, Anshul Rai, Ms.
Sreoshi Chatterjee,, Ramkrishna Veerendra, Tanuj Khurana, Ms. Anjali
Chauhan, Ankur Gupta, Nar Hari Singh, S. K. Pandey, Awanish Kumar,
Chandrashekhar A. Chakalabbi, Ravi S. Chauhan, Vikas Mehta, Kaushal
Sarkar, Pratap Shanker, Ankit Kumar, Swetank Shantanu, Arvind Kumar
Gupta, Prashant Bhardwaj, Rishi Bharadwaj, Shaurya Dogra, Siddhartha
Shankar Ray, Saksham Maheshwari, Jagjit Singh Chhabra, Amar Nath
Gupta, Kamlesh K. Maurya, Santosh Kumar Sahu, Rameshwar Prasad
Goyal, Satyajit A. Desai, Ms. Anagha S. Desai, Satya Kam Sharma,
Vikas Kumar, Manish Paliwal, Devmani Bansal, Ateev Mathur, C. S. N.
Mohan Rao, R. Santhana Krishnan, Lokesh Kumar Sharma, Ms. Sujeeta
Srivastava, Ms. Abha R. Sharma, Yatendra Singh Jafa, Rahul Pratap,
Romy Chacko, Shakthi Chand Jaidwal, Santosh Kumar-I, Ms. Isha Jain,
Mohinder Jit Singh, Hardik Rupal, Amit Kumar, Arjun Harkauli, Ms.
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC.
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Malini Poduval, Abhijat P. Medh, Aditya Ranjan, D. S. Chauhan, Satpal
Singh, Mayank Goel, M/s UNUC Legal LLP, Advs. for the appearing
parties.
The Judgment of the court was delivered by
UDAY UMESH LALIT, J.
1. Delay condoned. Leave granted.
2. These appeals by the University of Delhi ('the University', for
short) are directed against the judgment and order dated 24.08.2016
passed by the Division Bench of High Court of Delhi at New Delhi in
Letters Patent Appeals1 which in turn had challenged the decisions of
the learned Single Judge of the High Court dated 30.04.2014 in various
Writ Petitions2.
3. The basic facts leading to the filing of the Writ Petitions in the
High Court are as under:
a.
All the writ petitioners are members of the teaching staff
working in various colleges and institutions which are either
affiliated to, or are part of the University. The conditions of
service of the teaching staff are somewhat analogous to
the employees of the Central Government.
b.
On 06.06.1985, the Central Government employees who
were governed by the Contributory Provident Fund (for short,
"CPF") were permitted to opt for General Provident Fund
and Pension Scheme (for short, "GPF"). Thereafter a
1 LPA Nos.410-414, 416-418, 558, 594, 667, 672 and 780 of 2014; 554, 606, 607, 608,
609, 610, 615, 616, 617, 618, 619, 622, 623, 624, 625, 626, 627, 628, 629, 632, 633,
635, 636, 637, 638, 639, 640, 641, 642, 643, 644, 645, 646, 647, 648, 650, 651, 653,
654, 655 of 2014 and other connected appeals.
2 Writ Petition No. 1490 of 2006 and connected matters, Writ Petition(C) Nos. 5631 of
2010, 1216 of 2011, 3631 of 2011, 3863 of 2011, 5495 of 2011, W.P.(C)No. 6009 of
2011 & CM No. 12140 of 2011, W.P.(C)No.5106 of 2011 & CM No. 10351 of 2011,
W.P.(C)No.5975 of 2010 & CM No. 11775 of 2010, W.P.(C)No. 5979 of 2010 & CM
No.11782 of 2010, W.P.(C)No.5980 of 2010 & CM No. 11784 of 2010, W.P.(C)No.5981
of 2010, W.P.(C)No.5982 of 2010 & CM No. 11787 of 2010, W.P.(C)No. 5985 of 2010
& CM No. 11793 of 2010; W.P.(C)No
.2036 of 2010, W.P.(C)No.2037 of 2010, W.P.(C)No.3095 of 2010 & CM No. 7718 of
2011, W.P.(C)No. 5759 of 2010, W.P.(C)No.7310 of 2010 and W.P.(C)No.8560 of
2010.
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notification was issued by the Central Government with
respect to the changeover of the employees from CPF to
GPF. Said notification issued on 1.5.1987 contemplated that
all CPF beneficiaries who were in service on 01.01.1986
and were still in service would be deemed to have "come
over" to GPF unless a contrary option was exercised by
them in writing by 30.09.1987 to continue to be under CPF.
The relevant paragraphs of said notification were:
"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. F 3 (1) - Pension Unit/85, dated the
6" June, 1985. However, some Central Government
employees still continue under the CPF Scheme. The
Fourth Central Pay Commission has 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, it has been decided that
the said recommendation shall be accepted and
implemented in the manner hereinafter indicated.
3.1 All CPF beneficiaries, who were in service on 1st
January, 1986, and who are still in service on the date of
issue of these orders viz., 1st May, 1987) 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 30-9-1987, 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.
***
***
***
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC.
[UDAY UMESH LALIT, J.]
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3.6 The option once exercised shall be final.
***
***
***
6.3 These orders do not also apply to scientific and
technical personnel of the Department of Atomic Energy,
Department of Space, Department of Electronics and
such other Scientific Departments as have adopted the
system prevailing in the Department of Atomic Energy.
Separate orders will be issued in their respect in due
course. [See Order (3) in this Appendix.]
8. These orders issue with the concurrence of the
Ministry of Finance, Department of Expenditure, vide
their U.O. No.2038/IS(Pers.)/87, dated 13-4-1987."
c.
Around the same time, a communication was addressed on
05.05.1987 by the Central Government to the Registrar of
the University stating that the Hon'ble President of India in
his capacity as Visitor of the University was pleased to
approve the proposal of the University for amending Statute
28A, giving benefits to its employees relating to GPF, CPF,
gratuity etc. "which are more advantageous to the
employees of the University in pursuance to similar order
issued by the Central Government with respect to their own
employees". The amended Statute 28-A read as under:
"28-A: In this Statute unless there is anything repugnant
in the subject or context:
(1)
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(2)
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(3)
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(4)
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(5) The sanction and payment of retirement benefits
admission under this Statute shall regulated by such
procedural instructions as would be issued by the
Executive Council.
Amendment approved:
Add the following as Clause 5 in Statute 28-A and
Clause 5 and 6 may be renumbered as Clause 6 and 7
respectively.
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"(5) As and when the Central Government amends Rules
giving more benefits to its employees relating to General
Provident Fund, Contributory Provident Fund, Pension
Gratuity, etc. which are advantageous to the employees
of the University, the employees of the University will
be entitled to the same benefits with effect from the
date such amendment is brought into force by the Central
Government with respect to its employees."
(6)
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(7)
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d.
Close on the heels, a notification was issued by the University
on 25.05.1987 stating that all CPF beneficiaries in service
on 01.01.1986 would be deemed to have "come over" to
GPF under Statute 28-A unless such employees had opted
to continue under CPF. Paragraph '5' of the notification
was to the following effect:
"5. Pensionary benefits to temporary employees -
Temporary employees, who retire on superannuation or
on being declared permanently incapacitated for further
service by the appropriate medical authority after having
rendered temporary service of not less than 10 years,
shall be eligible for grant of superannuation/ invalid
pension, retirement gratuity and family pension on the
same scale as admissible to permanent employees.
Further it has also been decided by the Government of
India that pensioners who have commuted a portion of
their pension and on 1.4.85 or thereafter have completed
or will complete 15 years from their respective dates of
retirement will have their commuted portion of pension
restored.
lt was also recommended by the Pay Commission that
all CPF beneficiaries who are in service on 1.1.1986
should be deemed to have come over to the pension
scheme on that dates unless they specifically opt out to
continue under the CPF Scheme. This recommendation
has also been accepted by the Government of India.
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC.
[UDAY UMESH LALIT, J.]
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Keeping in view the revised pensionary benefits, it has
been approved by the Vice-Chancellor that the above
decision of the Government of India regarding option
also be adopted in the University. It has, therefore, been
decided that all Contributory Provident Fund
beneficiaries who are in service on 1.1.1986 in the
University should be deemed to have come over to the
pension scheme under Statute 28-A Appendix 'A' unless
they specifically opt out to continue under CPF Scheme
(Statute 28-A, Appendix 'B').
It has further been decided that in respect of categories
B, C & D beneficiaries for whom the revised grades
have been announced and implemented, they be given
three months' time from the date of this notification for
opting out to continue under CPF Scheme (Statute 28-A
Appendix 'B'). For category A - CPF beneficiaries the
period of three months' time for the same purpose will
be reckoned from the date of adoption by the University
of the revised pay scales based on the IVth Pay
Commission's recommendations, UGC committee's
Report. Employees who have already opted for the
scheme under Statute 28-A Appendix 'A' will not be
eligible for any further option. These orders 'would also
-be applicable to the employees of the Colleges affiliated
to the University of Delhi and receiving maintenance
grant from 'the 'University Grants Commission. The
contents of this notification shall be brought to the notice
of each employee and his/ her acknowledgement for
having noted these orders obtained and opt in the office
record."
e.
By cut-off date, that is to say by 30.09.1987, 2611 employees
of the University had opted to continue under CPF while
the rest of the employees, by virtue of deeming provision of
the concerned notification referred to above, were deemed
to have "come over" to GPF.
f.
However, the University kept granting extensions for
exercise of option to remain under CPF. First two extensions
were, thus, granted vide communications dated 5.10.1987
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and 21.01.1988 for exercising the option to remain under
CPF. About 626 employees exercised such option to
continue under CPF during two extensions granted by the
University.
g.
Thereafter 11 further options were granted by the University
whereunder there could be a switchover from CPF to GPF.
These options were granted vide Notifications dated
9.2.1989, 4.6.1989, 17.9.1989, 12.07.1991, 20.12.1991,
16.07.1993, 12.07.1994, 15.03.1996, 09.01.1998, 04.03.1998
and 16.11.1998. The cutoff date for exercise of option under
the last notification was 31.1.1999. About 2469 employees
exercised option during periods covered by these 11
notifications to switchover from CPF to GPF.
h.
On 25.5.1999, a letter was addressed by the University
Grants Commission ("the UGC", for short) to the Registrar
of the University stating that the option in terms of the
notification dated 01.05.1987 issued by the Central
Government could be exercised only upto 30.09.1987; and
if no option was received by said date the employees were
deemed to have "come over" to the pension scheme and
thus, option once exercised, was final. Further, the revised
option given by the University to the concerned employees
to switch over from CPF to GPF after the deadline was
incorrect and therefore, the cost of benefit, if any, to such
employees must be met by the University from its own
sources. The relevant portion of the communication was:
"As you are already aware, the employees of University
of Delhi are governed by Central Government GPF/CPF
rules. The Government of India vide their O.M.No.4/I/
87-P.I.C, dated the 1st May, 1937 (copy enclosed) had
given a cut-off date as 30.09.87 to the employees for
exercising their option in case they desired to continue
to be governed by the CPF Scheme, and in case no
such option was exercised by the above date all the
employees were deemed to have come over to the GPF
Scheme of the Government of India. It was also made
clear that no extension for exercising option for continuing
in the CPF scheme will be admissible as per Government
of India's rules after 30.9.87.
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC.
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As per guidelines of Government of India, all CPF who
were In service on 1st January,1986, and who are still in
service on the date of issue of these orders (viz. 1st
May, 1987) have therefore automatically come over to
the Pension scheme. However, the employees who have
exercised an option to continue under the CPF scheme,
if they so desired have done so after due consideration
by the specific date i.e. 30.09.87. As the option was
given upto 30.9.87 and it was clearly stated in the order
that if no option is received by the above date the
employees will be deemed to have come over to the
Pension Scheme and the option once exercised shall be
final. The revised option again given by the employees
to come back to GPF Scheme from CPF Scheme and
accepted by the University is absolutely incorrect and
against the rule. I would therefore request you to please
furnish a list of employees who have been given the
extension of change over from CPF to GPF after 30.9.87
and the benefit of retirement liabilities for such employees
may be met by the University from their own sources
and the same would only be treated as unapproved
expenditure while determining the maintenance grant of
the University. The next installment of maintenance grant
would only be released after the receipt of above
information."
i.
In response to a communication dated 18.09.1999 addressed
by the UGC with respect to the subject regarding option of
shifting from CPF to GPF, the Ministry of Human Resource
Development, Department of Secondary Education and
Higher Education, Government of India ("MHRD" for
short) responded on 19.06.2000 and stated:
".... That Ministry has regretted its inability to allow
one more option to change over from CPF Scheme to
the GPF Scheme to the employees of UGC and the
institutions maintained by it."
j.
On 8.08.2001, the UGC again requested MHRD to allow
one extension for exercise of option to switch over from
CPF to GPF. The proposal was, however, rejected by the
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Finance Ministry of the Central Government on the ground
that the cost of introduction of pension scheme was much
higher than the CPF and that such cost would continuously
increase with every revision in the scale of pay and further
that acceptance of such proposal would have wide
repercussions with many similarly placed autonomous bodies
demanding similar extension.
4. In these circumstances, Writ Petitions were filed in the High
Court claiming diverse reliefs. These petitions, by order dated 21.05.2012
passed by the learned Single Judge of the High Court, were categorized
into three categories.
a.
Employees who had not exercised any option at all and
thus by virtue of the deeming provisions contemplated in
the notification dated 01.05.1987, were deemed to have
"come over" to GPF; but having continued to make
contributions under the old CPF scheme were being treated
to be under CPF. This batch was subsequently referred to
as "R.N. Virmani batch of cases" in the decisions rendered
by the High Court.
b.
Employees who had not exercised the option by the cutoff
date contemplated under the notification dated 01.05.1987
and were thus deemed to have "come over" to GPF;
however, such employees had exercised the option to remain
under CPF scheme during first two extensions granted by
the University between 01.10.1987 to 29.02.1988; and were
now praying that they be allowed to be under GPF. This
batch of cases was described to be "N.C. Bakshi batch of
cases" in the decisions rendered by the High Court.
c.
Employees who had exercised positive option by 30.09.1987
i.e. by the original cutoff date contemplated under
notification dated 1.5.1987 and had chosen to remain under
CPF Scheme; but were now demanding that they be given
further option and were therefore praying for extension of
the cut-off date to enable them to "come over" to GPF.
This group of matters was referred to as "Shashi Kiran
batch of cases" in the decisions rendered by the High Court.
5. Thus, the employees in all three batches of cases desired to be
under GPF rather than under CPF and were therefore praying for a
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC.
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chance to facilitate such switchover. The reason for such attempts was
spelt out with clarity in one of the letters3 addressed by the University to
the UGC as under:
"...I have received representations from 376 teachers of
constituent colleges and departments of this University
addressed to the Chairperson, UGC, requesting for the grant
of a fresh option to switch over from the CPF to the GPF cum
pension scheme. All of them were appointed before 1.1.1986.
The representations have drawn attention to the huge disparity
between those on the GPF cum pension scheme and those on
the CPF scheme. This is because over the years and especially
in the last few years - Government decisions have led to a
situation where those entitled to pensionary benefits have been
placed in a far more advantageous position that those entitled
to CPF schemes. As a result of the Fifth Pay Commission's
recommendations, 40% of pensions can now be commuted,
giving a huge lump payment to pensioners. The communication
is restored after fifteen years. Those on CPF get only a lump
payment which includes their own contribution. Pensions are
now fully indexed to inflation and their nominal value rises twice
every year, in the case of those on CPF, the Government -
keeping in view its overall fiscal and macro-economic strategy
has reduced interest from a high of 12% in 1998 to 8% today.
While the high interest rates which made CPF schemes
attractive have come down, the nominal value of pensions
keeping going up because of inflation indexing. All this has
created a significant disparity between those on GPF-cumpension and those on CPF schemes. According to a rough
calculation, this could run into several lakh rupees over a period
of time in the case of two identically placed professors. I think
there is merit in the request that those who continue to be on
the CPF scheme should be given a fresh option to switch over
to the GPF cum pension scheme instead of taking the legalistic
stand that those on CPF opted for the scheme. The Government,
as a fair employer, may kindly take action to remove the
growing inequality between those on CPF and those on GPF
3 Letter dated 21.12.2006, which was extracted in the decisions of the learned Single
Judge as well as the Division Bench of the High Court.
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cum pension schemes. I would, therefore, request you to please
take up the matter with the Ministry of HRD and the Ministry
of Finance to allow a fresh option to those on the CPF scheme
to come over to the GPF-cum-pension scheme..."
6. These three batches of cases were disposed by the learned
Single Judge of the High Court by three separate decisions dated
30.04.2014
A) R.N. Virmani batch of cases
i)
The reasoning that weighed with the learned Single Judge
was:-
"14. In my view, the answer to the question: as to whether
employees, who had not issued any overt communication
with regard to his / her desire to continue with the CPF
Scheme, stood covered by the Pension Scheme; would
largely depend upon the provisions of O.M. dated
01.05.1987, itself.
14.1 It is not in dispute before me that O.M. dated
01.05.1987 was adopted by the University of Delhi vide
notification dated 25.05.1987 read with notification dated
04.06.1987, pursuant to an approval received in that behalf
from its Vice Chancellor. Therefore, much would depend,
in my opinion, upon the language of the relevant clause of
O.M. dated 01.05.1987. The said O.M. clearly applies to
all employees who were CPF beneficiaries on 01.01.1986.
Clause 3.1 read with clause 3.2 is plainly indicative of the
fact that all such employees, who are CPF beneficiaries,
shall be deemed, to have, come over to Pension Scheme
unless the employee(s) concerned submitted his or her
option to continue with the CPF Scheme. This option had
to be submitted in the prescribed form to the concerned
Head of Office by 30.09.1987. In case, no option was
received by the Head of Office by 30.09.1987, employees
were deemed to have come over to the Pension Scheme.
Therefore, by legal fiction once, the deeming clause kickedin, those who did not submit their option form for continuation
under the CPF Scheme stood covered by the Pension
Scheme."
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC.
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ii)
To arrive at the conclusion as mentioned above, the learned
Single Judge relied inter alia upon the following passages
from the decision of this Court in Union of India and
another v. S.L. Verma and others4:
"..4. The Central Government as also the respondent
No.14-Bureau of Indian Standards have proceeded on
some legal misconception that it was obligatory on the
part of the said employees to give a positive option for
the said purpose. For the first time on 2.2.1999, the
respondent No.14 requested the Union of India for grant
of another chance to the respondents to switch over to
pension scheme stating that they purported to have
exercised their option for CPF Scheme on the cut-off
date.
7. The Central Government, in our opinion, proceeded
on a basic misconception. By reason of the said Office
Memorandum dated 1.5.1987 a legal fiction was created.
Only when an employee consciously opted for to continue
with the CPF Scheme, he would not become a member
of the Pension Scheme. It is not disputed that the said
respondents did not give their options by 30.9.1987. In
that view of the matter respondent Nos. 1 to 13 in view
of the legal fiction created, became members of the
Pension Scheme. Once they became the member of
the Pension Scheme, Regulation 16 of the Bureau of
Indian Standards (Terms and Conditions of Service of
Employees Regulations, 1988) had become ipso-facto
applicable in their case also. It may be that they had
made an option to continue with the CPF Scheme at a
later stage but if by reason of the legal fiction created,
they became members of the Pension Scheme, the
question of their reverting to the CPF would not arise.
The respondent No.14 has correctly arrived at a
conclusion that an anomaly would be created and in fact
the said purported option on the part of respondent No.1
to 13 was illegal when a request was made by
respondent No.14 to the Union of India for grant of
4 (2006) 12 SCC 53
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approval so that all those employees shall come within
the purview of the Pension Scheme. In our opinion, the
Ministry of Finance proceeded on a wrong premise that
the Pension Scheme was not in existence and it was a
new one. Two legal fictions, as noticed hereinbefore,
were created, one by reason of the memorandum, and
another by reason of the acceptance of the
recommendations of the Fourth Central Pay Commission
with effect from 1.1.1986. In terms of such legal fictions,
it will bear repetition to state, the respondent nos.1 to 13
would be deemed to have switched over to the pension
WP(C) 1490-1507/2006 & connected matters Page 26
of 33 scheme, which a fortiori would mean that they no
longer remained in the CPF scheme..."
(Emphasis supplied by the learned Single Judge)
iii)
The argument made by the respondents was dealt with as
under
"16. The argument raised before me by the respondents,
which veered towards approbation, was based on the fact
that petitioners had continued to contribute under the CPF
Scheme. This submission would not cut much ice with me,
having regard to the plain terms of O.M. dated 01.05.1987.
If, the cover under the Pension Scheme, gets triggered with
effect from 30.09.1987, the contribution by an employee
and its receipt by the employer clearly proceeds on a
misconception of the provisions of O.M. dated 01.05.1987.
WP(C) 1490-1507/2006 & connected matters Page 29 of
33 As a matter of fact, this very argument was repelled by
the Supreme Court, in S.L. Verma's case, and I think, for
good reason. Consequently, there is no room for entertaining
such an argument.