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AFR

Judgment reserved on 23.03.2011


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/

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