Judgment delivered on 12.08.2011 Civil Misc. Writ Petition No.32101 of 200 Dr. V.P. Singh & Ors. !s. Executive Council Banaras Hindu University, Varanasi & Ors. Civil Misc. Writ Petition No.28"#0 of 200 Proessor !rittun"ay Bhattacharyya !s. Executive Council, B.H.U., Varanasi & #nr. $on. %unil Am&'(ni) J. $on. *. N. P(nde+) J. $. %e have heard Shri &.'. Singh or the (etitioners. Shri )a*esh Sinha or the Central &overn+ent. Shri Pan*a" ,a-vi or Banaras Hindu University and Shri V.'. U(adhyay or the University &rants Co++ission. .. #ll the (etitioners are teachers/ e+(loyees o the Banaras Hindu University. By the 0rit (etition ,o.1.$2$ o .223 they have (rayed or -uashing the decision o the Executive Council o the University dated $4th5.2th 6uly, .22. as co++unicated 7y the )egistrar o the University on 8.4..22. regretting to a((rove the orders o the Vice Chancellor o the University dated .2.1..22$ and $9.$..22. to grant another o((ortunity to the university e+(loyees, and to all those 0ho have su(erannuated ater $.$.$44:, to o(t or the (ension sche+e. Conse-uently, the action ta*en in co+(liance to the Vice Chancellor order dated $9.$..22. 0as 0ithdra0n. ;he (etitioners have urther (rayed or 0rit o +anda+us co++anding the university to allo0 the (etitioners to s0itch 7ac* ro+ Contri7utory Provident <und Sche+e =CP< Sche+e> to &eneral Provident <und5cu+5 &ratuity5cu+5Pension Sche+e =&P<5&ratuity5Cu+5Pension Sche+e>. 1. ?n %rit Petition ,o..9@42 o .223, the (etitioner has challenged the decision o the Executive Council dated 1$st . !ay, .221 co++unicated to the (etitioner vide letter dated .3th 6uly, .221. 3. Brie acts giving rise to these 0rit (etitions are that the <ourth Central Pay Co++ission reco++ended that all contri7utory und 7eneiciaries in service as on $.$.$49: should 7e dee+ed to have co+e over to the Pension Sche+e unless they s(eciically o(t to continue under the Contri7utory Provident <und Sche+e. ;he De(art+ent o Pension and Pensioners %elare accordingly issued an order on $.8.$49@ under 0hich the o(tion 0as to 7e exercised 7y 12.4.$49@. ;hose e+(loyees, 0ho o(ted to continue under CP< Sche+e 0ere ex(ressly retained in CP< Sche+e. #ll the (etitioners o(ted to continue 0ith CP< Sche+e. 8. Shri &.'. Singh a((earing or the (etitioners states that the Benaras Hindu University vide its Circular dated .:.1..22$ invited a((lications ro+ the e+(loyees o the res(ondent university or changing over ro+ CP< to &P<5&ratuity5 Pension Sche+e. ;he o(tion 0as to 7e exercised 7y .8.8..22$. ;he decision to give an o((ortunity to the e+(loyees 0as ta*en 7y the Vice Chancellor on the reco++endation o a co++ittee, 0hich 0as a((ointed 7y the co+(etent authority o the university and included t0o +e+7ers o the Executive Council. !any e+(loyees exercised the o(tion and 0ere allotted the &P< nu+7ers. #lthough in res(ect o so+e o the nu+7ers Ainteri+A 0ord 0as +entioned 7ut in +any cases the 0ord Ainteri+A 0as not +entioned. ;he (rocess continued or a (eriod o $@ years ater 0hich the acility 0as discontinued and a decision 0as ta*en 7y the Executive Council o the University on $4th5.2th 6uly, .22., 0hich is under challenge. :. ?t is su7+itted 7y learned counsel or the (etitioner that the Executive Council o the University has acted ar7itrarily in not acce(ting the o(tion or+, 0hich 0as 1 su7+itted 7y the (etitioner in (ursuance to the notiication dated .:.1..22$. ;he university had in the (ast also invited o(tions in the year $499 and thrice in the year $448 ro+ the teachers/ e+(loyees o the Universities. ;here are several other (re+ier institutes/ universities in the country in 0hich the teachers and e+(loyees have 7een extended the acility o s0itching 7ac* ro+ CP< to &P<5&ratuity5Pension Sche+e u(to the year .221. @. ;he (etitioners have a+ended the 0rit (etitions and have challenged the decision o the &overn+ent o ?ndia and the University &rants Co++ission dated ...@..221, .1.4..221 and .2.$2..221 re"ecting the re-uest o the University to allo0 the teachers/ e+(loyees to s0itch over to the &P<5&ratuity5Pension Sche+e and have challenged the order dated ...@..221 (assed 7y the 6oint Secretary =Personnel>, De(art+ent o Ex(enditure, !inistry o <inance, &overn+ent o ?ndia, the order dated .1.4..221 (assed 7y the Under Secretary, University &rants Co++ission, and the order dated .2.$2..221 (assed 7y the De(uty Secretary, De(art+ent o Secondary and Higher Education, !inister o Hu+an )esource Develo(+ent, &overn+ent o ?ndia. ?t is su7+itted that on the reco++endation o 8th Pay Co++ission the (ay (ac*age 0as drastically a+ended in avour o the e+(loyees, 0ho had o(ted or &P<5&ratuity5Pension Sche+e and has adversely aected those, 0ho continued under CP< Sche+e in as +uch as the age o su(erannuation 0as raised ro+ :2 to :. yearsB the co++utation o (ension 0as increased ro+ $/1rd o the (ension to 32C o the (ension a+ountB .8C o the non5(racticing allo0ance 0as (rovided to the teachers 7elonging to +edical (roession to 7e treated as (ay, or calculating (ension. ;he dearness allo0ance 0as added or the (ur(oses o calculation o gratuity, 0ith ceiling o )s.1.8 lacs and a+ily (ension 0as li7eralised 0.e.. $st 3 6anuary, $449 giving the 7eneit to +other/ ather, in the a7sence o s(ouse and children. ;he denial o an o((ortunity, 0hich has 7een given to the teachers o +any other institutes, to s0itch 7ac* ro+ CP< to &P< Sche+e, is thus 0holly ar7itrary and illegal and violative o (etitionersA rights under #rt. $3 and $: o the Constitution o ?ndia. 9. Shri Pan*a" ,a-vi a((earing or the Banaras Hindu University, states that the President o ?ndia in the ca(acity as visitor o the University had a((roved the a+end+ent o Statute 31 o the B.H.U. #ct and accordingly the Central University )etire+ent Beneit )ules, $4:@ 0ere circulated 7y notiication dated .4.$..$4:@ re-uesting the e+(loyees o the University to exercise their o(tion under )ule 1 =iii> o the )ules. ;hose e+(loyees, 0ho o(ted or CP< Sche+e 0ere again given an o((ortunity to s0itch over (roviding or the last date o exercising the o(tion 7y 1$st Dece+7er, $448. ;hereater, no urther o((ortunity 0as allo0ed. So+e o the e+(loyees, 0ho had o(ted or CP< Sche+e and also did not avail the o(tion 7y 1$st Dece+7er, $448 +ade "oint re(resentation giving hi+ another o((ortunity. ;heir re(resentation 0as or0arded to University &rants Co++ission, ,e0 Delhi in ,ove+7er, $444. ;he University &rants Co++ission reerred the +atter to the !inistry o Hu+an )esource Develo(+ent, 0hich in turn sought the advice o !inistry o <inance. ;he !inistry o <inance did not acce(t the "oint re(resentation. 4. ;he Vice Chancellor constituted a Co++ittee under the Chair+anshi( o Shri D.'. )ai vide notiication dated 1$.$..22$ to exa+ine 0hether the re-uest o the teachers/ e+(loyees to give one +ore o((ortunity can 7e considered. ;he Co++ittee reco++ended that the letters o U&C dated $8th 6une, .222 and !inistry o Hu+an )esource Develo(+ent dated $4th 6une, .222 7e re(orted to the 8 Executive Council or its (er+ission to +a*e it a((lica7le 0ithin the sco(e o Statute 31 o the Banaras Hindu University. ;he Vice Chancellor 7y his order dated .2.1..22$ acce(ted the reco++endation and issued a circular allo0ing another o((ortunity to all the e+(loyees inviting revised o(tion or+s to all those e+(loyees, 0ho 0ere on the rolls o the university as on 1$.$..$448 and have su(erannuated (rior tot he issuance o the Circular dated .:.1..22$. ;he +atter 0as (laced 7eore the Executive Council o the University, 0hich in its +eeting dated $4th5.2th 6uly, .22$ resolved that since the invitation o o(tion is in contravention o the directives o the U&C/ !H)D, the sa+e cannot 7e acce(ted. Conse-uently, the Vice Chancellor 7y his order dated $9.$..22. 0as 0ithdra0n the o(tion and the decision 0as circulated to all the concerned in the University vide notiication dated 8th/4th Se(te+7er, .22.. $2. Shri Pan*a" ,a-vi su7+its that the University is ully unded 7y the University &rants Co++ission, and is 7ound 7y the directions o the !inistry o <inance. Since the !inistry o <inance did not agree, neither the !inistry o Hu+an )esource Develo(+ent nor the U&C 0ere co+(etent, under the inancial disci(line, to acce(t the re-uest or giving another o(tion to s0itch over to the (ension sche+e. $$. Shri )a*esh Sinha, learned counsel a((earing or the Central &overn+ent has relied u(on the aidavit o Shri ).P. ;i0ari, Under Secretary, De(art+ent o Higher Education, !inistry o Hu+an )esource Develo(+ent, Shastri Bha0an, ,e0 Delhi, in 0hich it is stated that as a +atter o (olicy the Union &overn+ent has discontinued the &P<5&ratuity5 Pension Sche+e to all the e+(loyees "oining Central &overn+ent, and that ater $.$..223 all the Central &overn+ent e+(loyees 0ere oerred and have 7een 7rought under the ne0 Pension Sche+e. ;he !inistry o <inance has : suggested that all the e+(loyees covered under the &P<5 &ratuity5Pension Sche+e +ay 7e considered to s0itch over to ne0 (ension sche+e and thus there is no +erit in the 0rit (etition in 0hich (rayers have 7een +ade 7y the (etitioners to allo0 the+ to s0itch 7ac* to the &P<5&ratuity5Pension Sche+e, ater they have o(ted or CP< Sche+e. $.. %ith regard to discri+ination it is stated 7y Shri )a*esh Sinha relying u(on (ara $2 o the counter aidavit that the !inistry o Hu+an )esource Develo(+ent 7y its letter dated $.4..221 and .$.8..223 co++unicated to the Directors o ??;s at Bo+7ay, 'an(ur, Delhi, &ora*h(ur, !adras, &u0ahati and )oor*i that o(tion exercised 7y the e+(loyees at the ti+e o i+(le+entation o the 3th Central Pay Co++ission 0as inal and there is no -uestion o urther exercising the o(tion to s0itch over to the &P<5&ratuity5Pension Sche+e. ;he Directors o these ??;s 0ere re-uested not to entertain any re-uest or s0itch over ro+ the sta, 0ho have since retired. ;he Delhi University 0as also not given (er+ission 7y U&C or extension o date o o(tion ro+ CP< Sche+e to &P< Sche+e. $1. Shri V.'. U(adhyay a((earing or the University &rants Co++ission has relied u(on the counter aidavit o Dr. ,.'. 6ain, 6oint Secretary, University &rants Co++ission, ,e0 Delhi. He has reiterated the o7"ections ta*en 7y the University as 0ell as the Central &overn+ent. He su7+its that the University &rants Co++ission had ta*en u( the +atter 7y letter dated 9.9..22$ to the 6oint Secretary, &overn+ent o ?ndia, !H)D to consider to extend the sche+e and to notiy a clear vie0 o cut o date so that the institutions do not ix their o0n cut o date. ;he !inistry o Hu+an )esource Develo(+ent, &overn+ent o ?ndia 7y its letter dated ...4..22$ inor+ed the U&C that earlier the +atter 0as exa+ined in consultation 0ith the !inistry o @ <inance =De(art+ent o Ex(enditure>. ;he !inistry had regretted and ex(ressed its ina7ility to allo0 one +ore o(tion to change over ro+ CP< to &P< Sche+e to the e+(loyees o the U&C and institutions +aintained 7y it. Earlier the !inistry o Hu+an )esource Develo(+ent, &overn+ent o ?ndia 7y letter dated $4.:..222 had also co++unicated the +atter (ertaining to the o(tion in consultation 0ith the !inistry o <inance and had regretted its ina7ility to allo0 one +ore o(tion. $3. ?t is su7+itted 7y learned counsel a((earing or U&C that !inistry o Hu+an )esource Develo(+ent 7y its letter dated .3.$...22. or0arded a letter to the Vice Chancellor, Banaras Hindu University regarding change o o(tion. #ter exa+ining the +atter U&C inor+ed 7y its letter dated .1.4..221 that the o(tions 0ere availa7le only u(to 12.4.$49@ and as such re-uest o University cannot 7e considered. $8. So ar as discri+ination is concerned, learned counsel a((earing or U&C su7+its that the Banaras Hindu University extended the date in the year $499 and in $448 on its o0n, 0ithout the a((roval o U&C. ;he U&C 7y its letter dated .1rd Se(te+7er, .221 inor+ed the University that one +ore o(tion to change over cannot 7e acce(ted. ?n case o #ssa+ University the e+(loyees, 0ho 0ere recruited ater $443 and that at that ti+e only &P< Sche+e 0as availa7le, the #ssa+ University 7y +ista*e given CP< to the e+(loyees, 0hich 0as not (er+issi7le. ?n (ara 9 o the counter aidavit o Dr. !.'. 6ain, 6oint Secretary, U&C it is stated that ??;s at 'an(ur, Bo+7ay, &ora*h(ur and )oor*i are not covered under the (urvie0 o U&C and that Delhi University 0as not given any (er+ission 7y U&C to extend the date. By D.O. letter dated .8.8.$444 addressed to the )egistrar, University o Delhi, a co(y o 0hich 0as endorsed to all Central University cut o date or change over ro+ CP< to &P< 0as 9 inor+ed to 7e 12.4.$49@ and the 7eneit o retire+ent lia7ilities or such e+(loyees ater cut o date 0as to 7e treated as una((roved ex(enditure. On the 7asis o the re(ly received ro+ the Delhi University to U&C they suggested to !inistry o Hu+an )esource Develo(+ent on 1rd Se(te+7er, .22. to regularise the change or Delhi University u(to 1$.1.$449 or that the &overn+ent o ?ndia +ay instruct U&C 0ith (ension lia7ility o the e+(loyee 7e not +ade 7y U&C, 0ho have (er+itted irregular conversion ro+ CP< to Pension Sche+e ater 12.4.$49@. ?n reerence to these letters the !inistry o Hu+an )esource Develo(+ent inor+ed U&C on .3.$2..22. that since the U&C is unding agency and it itsel had extended the govern+ent (olicy on conversion ro+ CP< to &PS to the Central &overn+ent and dee+ed universities receiving $22C +aintenance grant, no s(eciic govern+ent instructions are 0arranted to those e+(loyees o the University o Delhi, 0ho had not (er+itted to +a*e conversion ro+ CP< to &P< Pension Sche+e ater (rescri7ed cut o date. ;he U&C had not (er+itted the University or extension o the dates. ;he conversion 0as acce(ted 7y the Executive Council o the Delhi University, 0here there is no re(resentative o U&C/ &overn+ent o ?ndia. ;he (er+ission or extension to so+e o the e+(loyees 7y Banaras Hindu University ater the cut o date is in violation o the instructions given 7y the &overn+ent o ?ndia and U&C. $:. <ro+ these acts, 0e ind that the University &rants Co++ission had never co++unicated any decision to the Banaras Hindu University to extend cut o date or change o the o(tion. ;he !inistry o Hu+an )esource Develo(+ent had re-uested !inistry o <inance =De(art+ent o Ex(enditure>, 0hich did not agree to extend the cut o date or s0itching over ro+ CP< to &P< Sche+e. ;he Oice 4 !e+orandu+ ,o.3/$/9@ dated $.8.$49@ notiying the sche+e (ertaining to change over ro+ CP< to &P< 0as never a+ended. ;he Vice Chancellor o the Banaras Hindu University, on his o0n 0ithout any authority ro+ University &rants Co++ission and urther 0ithout there 7eing any resolution o the Executive Council a((ears to have extended the date or so+e o its e+(loyees u(to 1$st Dece+7er, $448. ;he change oerred to the+ 0as 7eyond the authority o the Vice Chancellor o the University. ;he Co++ittee headed 7y Pro. D.'. )ai had +ade a reco++endation or giving one +ore o((ortunity to s0itch over to &P<, 0hich a((ears to have 7een acce(ted 7y the Vice Chancellor, 0ithout the reco++endations o the Executive Council and that inally the Executive Council 7y its i+(ugned decision regretting its ina7ility to a((rove the orders o the Vice Chancellor dated .2.1..22$ and $9.$..22.. ;he Vice Chancellor o the University could not have acted against the directives o the University &rants Co++ission and !inistry o Hu+an )esource Develo(+ent as the University is ully unded 7y the University &rants Co++ission. $@. %e are o the o(inion that the Vice Chancellor on his o0n 0ithout there 7eing any a((roval o the Executive Council, 0hich is in turn 7ound in the +atters o inancial disci(line, 7y the decisions ta*en 7y the University &rants Co++ission, 0hich ully unds the University, did not have any authority to extend the date or o(tion. $9. ?n the (resent case the -uestion involved is not to extend the date o o(tion 7ut to allo0 the (etitioner to 0ithdra0 their o(tion to continue in the CP< Sche+e. Under the sche+e all the teachers/ e+(loyees 0ere allo0ed the 7eneit o &P<5&ratuity5Pension Sche+e. Only those e+(loyees, 0ho had exercised their o(tion to continue under the CP< Sche+e 0ere not given the 7eneit. )ule 1 =iii> o $2 the Central University )etire+ent Beneit )ules, $4:@ 0ere not a+ended to give authority to the Vice Chancellor to extend the last date. ;he Vice Chancellor on his o0n 0ithout any valid authority vested in hi+ extended the cut o date in the year $499 and in $448. ;he (etitioners did not ta*e 7eneit o this unauthorised extension (olicy also. ;hey, thereore, have no right 0hatsoever to clai+ urther extension. ;he Executive Council did not co++it any +ista*e in regretting its ina7ility to extend the date ollo0ing the directives o the U&D and !inistry o Hu+an )esource Develo(+ent. $4. ;he (etitioners are teachers and e+(loyees o the University. ;hey had ully understood the inancial i+(lications o the o(tion exercised 7y the+. ;he 7eneits oered 7y the 8th Pay Co++ission given 0.e.. $.$.$44: could not 7e a ground to allo0 the+ to o(t or &P<5&ratuity5 Pension Sche+e al+ost nine years ater the cut o date ixed at 12.4.$49@ had ex(ired. .2. ;he University &rants Co++ission has given suicient ex(lanation to the co+(laint o discri+ination. ;he &u0ahati University e+(loyees a((ointed in $443 0ere 0rongly oered CP< Sche+e and thus they 0ere all 7rought into &P< Sche+e or rectiying the error. ;he ??;s 0ere instructed 7y U&C/ !H)D not to extend cut o date since they are not unded 7y the U.&.C. #ny decision ta*en 7y the+ 0ill not a+ount to discri+ination 0ith the teachers/ e+(loyees o the Central Universities. ;he Delhi University continued 0ith an illegality, against the clariications issued 7y the U&C and !inistry o Hu+an )esource Develo(+ent. .$. ?n ,nion of -ndi( !s. M.*. %(r.(r) /20100 2 %CC 1# the Su(re+e Court held 0here an e+(loyee governed 7y CP< Sche+e did not o(t or (ension sche+e, des(ite several chances given to hi+, his re(resentation .. years ater his retire+ent, 0ith 0illingness to reund the a+ount cannot 7e $$ (er+itted to s0itch over to (ension sche+e. ? his re-uest is acce(ted, the eect 0ould 7e to (er+it hi+ to secure dou7le 7eneit. ;here 0as no recurring or continuing cause o action to ile 0rit (etition ater such a long ti+e. ? 0as urther held that 0hen he had notice or *no0ledge o the availa7ility o o(tion he could not 7e heard to contend that he did not have 0ritten inti+ation o o(tion. ... %e also ind that this 0rit (etition 0as iled on 8.9..223 challenging the decision o the Executive Council o the University dated $4/.2th 6uly, .22., co++unicated 7y the )egistrar o the University on 8.4..22., and +uch ater the ne0 (ension sche+e had 7eco+e a((lica7le to all the e+(loyees "oining Central &overn+ent ater $.$..223. ;he e+(loyees, 0ho 0ere covered 7y &P<5&ratuity5Pension Sche+e 0ere given oer to s0itch over to ne0 (ension sche+e and thus in the year .223 there 0as a7solutely no "ustiication or the (etitioners, +any o 0ho+ have retired long ago to 7e oered an o((ortunity to change their o(tion and to s0itch 7ac* to &P<5&ratuity5Pension Sche+e. .1. Both the 0rit (etitions are dismissed. 2t.12.08.2011 SP/