Central Administrative Tribunal
Principal Bench, New Delhi.

OA-2805/2012

				  		Reserved on : 13.02.2014.

		                                      Pronounced on : 24.02.2014.

Honble Mr. V. Ajay Kumar, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)


1.  Sh. Pradeep Mathur
     Asstt. Law Officer, CPCB, Delhi
     S/o late Sh. Mahesh Mathur,
     R/o Flat No. G-3, Plot No.340,
     Sector-4, Vaishali, 
    Ghaziabad-201010.(UP)			.		Applicants
    and remaining 260 applicants 
    as per Memo of Parties.

(through Sh. Naresh Kaushik with Ms. Aditi Gupta and Ms. Joymoti Mize, Advocate)
Versus
1.  Central Pollution Control Board through:
     The Chairman
     Central Pollution Control Board
     (Ministry of Enviornment & Forests)
     Parivesh Bhawan, East Arjun Nagar,
     Delhi-32.
2.  Union of India through:
     The Secretary,
     Ministry of Enviornment & Forests,
     Pariyavaran Bhavan, CGO Complex,
     Lodhi Road, New Delhi-1.
3.  Union of India through:
     The Secretary,
     Ministry of Personnel Public Grievances and Pensions
     Department of Pension and Pension Welfare
     Lok Nayak Bhawan, Khan Market,
     New Delhi-3.
4.  Union of India through:
     The Secretary,
     Ministry of Finance,
     Department of Expenditure,
     North Block,
     New Delhi-1.					.	Respondents

(through Sh. P.N. Puri, Advocate for R-1 and Sh. S.M. Arif, Advocate
 for R-2 and R-3)
 

O R D E R

Mr. Shekhar Agarwal, Member (A) Following relief has been sought in this O.A.:-

(i) Allow the present Original Application.

Declare that the Applicants are entitled to the Pension Scheme and direct the Respondents to extend the benefit of the Pension Scheme as was recommended by the Fourth Pay Commission with interest and all consequential benefits w.e.f. 1995.

Set aside Order 26/5/2011; 07/10/2011 & 11/11/2011.

Award cost in favour of the Applicants.

2. Facts of the case are that Central Pollution Control Board (CPCB) was constituted in September, 1974 as a statutory organization under the Water (Prevention and Control of Pollution) Act, 1974. It was entrusted with the powers and functions under the Air (Prevention and Control of Pollution) Act, 1981. In 1986 the Fourth Central Pay Commission recommended that the employees of Central Government governed by the Contributory Provident Fund (CPF) should be deemed to have come to the GPF-cum-Pension Scheme unless they specifically opt for continuation under the CPF. On 01.05.1987 the respondent No.3 vide its O.M. No. 4/1/87-PIC II dated 01.05.1987 extended the benefit of Pension Scheme to all CPF beneficiaries in service as on 01.01.986. The said O.M. provided that such employees shall be deemed to have over come to the GPF-cum-Pension Scheme unless they specifically opted out the same. In Clause-7.2 of the aforesaid O.M. it was provided that Administrative Ministries should issue similar circulars in consultation with Respondent No.3 herein. On 19.12.1989 the Board of CPCB resolved to adopt the GPF-cum-Pension Scheme of Government of India and directed that existing employees of CPCB be given an option to either switch over to the Pension Scheme or to continue under the CPF Scheme. On 24.01.1995 the CPCB Method of Recruitment, Terms and Conditions of Service of Officers and other Employees were notified. Rule-6(2) of the Regulations stated that Rules and Orders applicable to officers and servants of Central Government shall also apply to the employees of CPCB. On 11.12.1996 the respondent No.1 issued a circular asking the employees to exercise an option whether they wanted to be governed by CPF or come over to the GPF-cum-Pension Scheme. On 28.08.2000 the respondent No.3 while conveying their no objection to introduction of Pension Scheme in CPCB advised them to obtain concurrence of Ministry of Finance, respondent No.4 herein. Respondent No.1 on 20.09.2000 requested respondent No.4 for giving their concurrence for introduction of Pension Scheme in CPCB stating that such a Scheme had already been introduced in National Human Rights Commission. A reminder to the same was issued on 04.12.2000. However, no reply was received. Separately in 2004 the respondent No.4 introduced New Pension Scheme (NPS) for employees who joined on or after 01.01.2004. Meanwhile, respondent No.1 on 20.12.2004 again reminded the other respondents for introduction of GPF-cum-Pension Scheme in CPCB. However, on 10.12.2007 the respondent No.4 refused to implement the Pension Scheme in CPCB stating that it will cause extra financial burden. Separately, the Planning Commission had consented for such a Scheme and even agreed to provide funds to the extent of Rs.30 crores for its implementation. On 30.06.2009 the respondent No.4 issued an O.M. by which it permitted employees of autonomous body to awail of the New Pension Scheme, if they so desired. However, CPCB continued to press for introduction of Old Pension Scheme and on 08.09.2010 have even provided a list of organization which were governed by the same. Respondent No.4 while ignoring the request of CPCB, vide its letter dated 07.10.2011 made a New Pension Scheme applicable retrospectively even to those employees who had joined before 01.01.2004. Respondent No.1 even issued an O.M. inviting options for the same. It was also mentioned in the said O.M. that failure to submit the option form would imply that the employee has opted to continue in the CPF Scheme. On 23.05.2012 CPCB Employees Welfare Union again requested respondent No.2 for introduction of Old Pension Scheme. However, nothing was heard from the respondents. Hence, they have filed this O.A. before us on 16.08.2012.

3. Respondent No.1 in their reply have stated that the Board of the CPCB had resolved in its 79th held on 19.12.1989 to switch over GPF-Pension-Gratuity Scheme. However, due to unintentional lapse the matter could not be referred to the Government for implementation. Respondents No.2 and 3 have also filed their reply in which they have stated that the applicants are not Central Government employees and that their service conditions are governed by the Rules and Regulations of CPCB. At no point of time they were covered under the GPF-cum-Pension Scheme of the Central Government. Further, they have stated that the Fourth CPC had never recommended that the Pension Scheme should be extended to all employees of the autonomous bodies as well. They have thus opposed grant of relief asked for by the applicants.

4. We have heard both sides and have perused the material on record.

4.1 Learned counsel for the applicants argued that their case is squarely covered by a judgment of Co-ordinate Bench of this Tribunal delivered on 02.01.2014 in TA-1101/2009. Further, he stated that this Tribunal while delivering the aforesaid judgment has placed reliance on the judgment of Honble Supreme Court in the case of UOI & Anr. Vs. S.L. Verma & Ors., (2006) 12 SCC 53. On the other hand, learned counsel for the respondents Sh. S.M. Arif stated that this case is covered by judgment in the case of Sh. Ishwar Singh Vs. UOI & Ors., (OA-3863/2011) on 13.04.2012. Shri Arif also relied on the judgment of this Tribunal in the case of Rajni Devi Vs. UOI & Ors., (OA-1200/2001) dated 17.05.2002 which was also upheld by Honble High Court of Delhi in Writ Petition No. 4657/2002 vide its order dated 11.01.2008. Learned counsel for the applicants, however, stated that in none of these two judgments the law laid down by the Apex Court in the case of S.L. Verma (supra) was taken note of. Hence, he pleaded that the law laid down by the Apex Court will hold the field and the judgment of the Co-ordinate Bench of this Tribunal in TA-1109/2009 will be applicable in this case as well.

4.2 We have first seen the facts of the OA-1200/2001 in which the judgment was delivered on 17.05.2002 by Single Bench of this Tribunal. The issue under consideration in this case was the decision of the respondents to hold back the family pension and provisional family pension of applicant No.1 on the ground that extension of pensionary benefits as applicable to Central Government to CPCB employees was still under consideration. In this case, it was noted that the deceased husband of the applicant had opted for continuation under the CPF Scheme when option was given by the CPCB to its employees in 1996 to either opt for the Pension Scheme or continue in the CPF Scheme. The claim of the applicant was, therefore, rejected by the Tribunal and the order of the Tribunal was also upheld by the Honble High Court of Delhi. However, in our opinion, the order of Honble Supreme Court in the case of S.L. Verma (supra) was not brought to the notice of the Tribunal as well as the Honble High Court of Delhi. Moreover, the case was examined from the point of view of the applicant to decide whether she was entitled for pensionary benefits or not to be covered under GPF-cum-Pension Scheme. Since it was found that her deceased husband had not opted to be covered by the Pension Scheme in response to the Circular dated 11.12.1996 her claim was rejected. Thus this case is not similar to the case in hand.

4.3 We have also seen the case of Ishwar Singh (supra) relied upon by the respondents. The facts of this case are that the applicant had joined CPCB as Asstt. Law Officer and had got promoted as Senior Law Officer. He was attached with the Ministry on 05.09.2000. He was promoted as Addl. Director in CPCB but continued to work with the Ministry till his superannuation. Thereafter, when post of Director (Legal) got created in the Ministry he was pressing for his absorption on that post. Since the respondents did not accede to his request he filed OA-3863/2011 in which he sought absorption in the Ministry. As an alternative relief it was sought that the applicant should be granted the benefit of New Pension Scheme. Clearly the issue under consideration in this O.A. was entitlement of NPS benefit to the applicant. The question of granting Old Pension Scheme to CPCB employees in general was not examined in this O.A. Hence the facts of this case are clearly distinguishable from the case in hand.

4.4 We have also examined the facts of the case TA-1101/2009 relied upon by the applicants. Here the issue under consideration was grant of coverage under the Old Pension Scheme to the employees of Indian Institute of Mass Communication. We notice from the aforesaid judgment that the Tribunal has taken note of judgment passed in OA-1437/2009 (Amit Mukherji and Ors. Vs. UOI & Ors.), which was upheld by the Honble High Court of Delhi in Writ Petition No. 3122/2011. While dismissing the aforesaid Writ Petition the Honble High Court of Delhi had observed that:-

the Union of India has been extending the benefit of GPF-cum-Pension Scheme in the 12 autonomous Institutions where the Central Government has permitted the management to shift over to the pension scheme ranges between a minimum of 117 to a maximum of 463, except DTC where the number is in thousands and yet to a small body employing only 26 personnel (where the financial impact would be minimal) the benefit is denied because Central Government is following the principle of Might is Right?

The Tribunal has also taken note of the Honble Supreme Court judgment in the case of S.L. Verma (supra) in which the Honble Supreme Court have interpreted the O.M. dated 01.05.1987 stating as follows:-

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 SchemeTwo 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, Respondents 1 to 13 would be deemed to have switched over to the Pension Scheme, which a fortiori would mean that they no longer remained in the CPF Scheme. 4.5 In our opinion, the judgment of Co-ordinate Bench in TA-1101/2009 squarely covers the case in hand. The operative part of the judgment reads as follows:-

10. We, in the above facts and circumstances of the case, allow this OA and direct the Respondent No.3  Ministry of Finance to accord necessary financial sanction for the introduction of the GPF-cum-Pension Scheme to all the employees of the Respondent No.1 who have been appointed prior to 01.01.2004 as in the case of employees of Autonomous Bodies like National council of Educational Research & Training, Kendriya Vidyalaya Sangathan, Indian Council of Social Science Research, The National Institute of Health and Family Welfare, ICUs under the UGC etc., within a period of 2 months from the date of receipt of a copy of this order. Thereafter, within one month, the Respondent No.1 in consultation with Respondent No.2 shall ensure that the benefit of the aforesaid Scheme is made available to all its eligible employees.

5. Keeping in view the above analysis, we allow this O.A. and hold that the applicants of this O.A. will be entitled to the same relief as has been granted to the applicants of TA-1101/2009. The time schedule prescribed in the aforesaid judgment will also be followed in the instant case. No costs.

(Shekhar Agarwal)				   (V. Ajay Kumar)
    Member (A)					       Member (J)



/Vinita/