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TMI Blog2015 (1) TMI 1502X X X X Extracts X X X X X X X X Extracts X X X X ..... COURT] , and ACCOUNTANT GENERAL, BIHAR AND ANOTHER VERSUS N. BAKSHI [ 1961 (11) TMI 69 - SUPREME COURT] , has no application. It can be concluded that NWDA had framed its Regulation the CPF Rules, 1982 and they were duly approved by the Governing Body of NWDA. As NWDA is an autonomous body under the Ministry of Water Resources, it has framed it own bye-laws governing the employees. It has been time and again reiterated that the Court must adopt an attitude of total non-interference or minimal interference in the matter of interpretation of Rules framed by autonomous institutions. Parity between the employees of NWDA and Central Government employees - HELD THAT:- NWDA cannot be treated as an instrumentality of the State Under Article 12 of the Constitution merely on the basis that its funds are granted by the Central Government. In ZEE TELEFILMS LTD ANR VERSUS UOI. ORS [ 2005 (2) TMI 773 - SUPREME COURT] , it was held by this Court that the autonomous bodies having some nexus with the Government by itself would not bring them within the sweep of the expression 'State' and each case must be determined on its own merits. Thus, the plea of the employees of NWDA to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shamshery, Babita Yadav, Shubhashis R. Soren, Ruchi Kohli, Ranjit Sharma and Anisha Upadhyay, Advs. For the Respondents : Pinky Anand, ASG, Radhakanta Tripathy, Binu Tamta, Rashmi Malhotra, D.S. Mahra, Natasha, Advs. for B.V. Balramdas, Adv. JUDGMENT PINAKI CHANDRA GHOSE, J. 1. Leave granted in all the SLPs. CIVIL APPEALS @ SLP(C) Nos. 3106-3107 of 2012 AND SLP(C) Nos. 20425-20426 of 2011) 2. These appeals, by special leave, have been filed against the judgment and order dated 06.01.2011 passed by the High Court of Delhi at New Delhi in Writ Petition (Civil) No. 3197 of 2010 and order dated 18.03.2011 in Review Petition No. 90/2011, by which the High Court set aside the Order dated 08.02.2010 passed by Central Administrative Tribunal in Original Application No. 2037 of 2008 filed by the Appellants herein. 3. The facts of these appeals are briefly stated hereinafter. Appellants herein are the employees of National Water Development Agency ( NWDA ) which was established as a Society in July 1982 and was registered under the Societies Registration Act, 1860. The Society NWDA, which falls under the aegis and control, both administrative and financial, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme (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 6th 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 as option to continue under the CPF Scheme, if they so desire. The option will have to be exercised and conveyed to the Head of Office by 30.09.1987, in the form enclosed if the employees wish to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Scheme, the government's contribution to the CPF Account of the employees will be resumed by the government. The employee's contribution together with the interest thereon at his credit in the CPF Account will be transferred to the CPF Account to be allotted to him on his coming over to the Pension Scheme. 4.3 Action to discontinue subscriptions/contributions to CPF Account may be taken only after the last date specified for exercise of option, viz. 30.9.1987. 5. A proposal to grant ex gratia payment to the CPF beneficiaries, who retired prior to 1.1.1986, and to the families of CPF beneficiaries who died prior to 1.1.1986, on the basis of the recommendations of the Fourth Central Pay Commission is separately under consideration of the Government. The said ex gratia payment, if and when sanctioned, will not be admissible to the employees or their families who opt to continue under the CPF Scheme from 1.1.1986 onward. (See Order (4) in this Appendix) 6.1 These orders apply to all Civilian Central Government employees who are subscribing to the Contributory Provident Fund under the Contributory Provident Fund Rules (India) 1962. In the case of other contributory pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Ministry of Water Resources sought advice from the Ministry of Finance (Department of Expenditure). The Finance Ministry vide its letter dated 16.03.2000, advised autonomous bodies to continue to follow the CPF Scheme or work out an annuity scheme. Under paragraph 3 of the said letter it stated that introduction of pension scheme on Government of India pattern should not be agreed as a rule, and any exception in this regard would be referred to the Department. The Governing Body of NWDA in its 3rd meeting held on 31.3.1983 approved introduction of Contributory Provident Fund scheme for the employees of NWDA on the lines of Contributory Provident Fund Rules (India), 1962, as was clear in the appointment orders and CPF settlement cases of deceased employees of NWDA issued belatedly on 19/09/2007 and 23/12/2009. The NWDA did not make any distinct CPF rules. As stated by the Respondents, in the year 1982 NWDA had framed contributory Provident Fund Rules, which were duly approved by the Governing Body of NWDA. It rejected the proposal for introduction of Pension-cum-GPF-DCRG Scheme in NWDA. The Appellants sought Right to Information ( RTI ) on 18.7.2000 whereupon the decision of Mini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at bye-law 26(a) provides that no approval of Central Government is required to adopt scales of pay or allowances identical to those adopted for corresponding posts as per order issued by Central Government. As per bye-law 28, since no rules were framed by NWDA regarding switch-over of its employees, the O.M. squarely applied to NWDA employees and the question of applicability of the O.M. to the employees of the autonomous bodies is no longer res integra by the decision of the Supreme Court in Union of India v. S.L. Verma (supra). Accordingly, the Tribunal vide its order dated 08.02.2010, set aside the orders dated 16.03.2000 and 30.03.2000 impugned before it, allowed the O.A. No. 2037 of 2008 and directed the Respondents to implement O.M. dated 01.05.1987 and treat the employees of NWDA as covered under Pension Scheme in terms of Central Civil Services (Pension) Rules, 1972 ( CCS Pension Rules , for short) w.e.f. 01.01.1986 with all benefits. 7. Aggrieved by the decision of the Tribunal, the Respondents filed writ petition Under Article 226 and 227 of Constitution of India, challenging the order 08.02.2010 passed by the Tribunal. The Respondents did not urge the issue of limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case, it was specifically pleaded by the Appellants that the said recommendations of Fourth Central Pay Commission were not accepted by the Governing Body of NWDA. 8. Learned Counsel for the Appellants claimed that O.M. dated 01.05.1987 was scrutinized by the Supreme Court in the case of S.L. Verma (supra) and the present case is fully covered by the ratio of said case. NWDA has not framed CPF Rules in 1982. There was no reason for not placing on record the CPF Rules 1982 as approved by the Governing Body before the Courts along with their pleadings. Only at final stage they were included. NWDA has not brought the said Rules to the knowledge of the Appellants. The Rules have not been approved by the Governing body and are not in operation. The specific case of Respondent T.M. Sampath in review petition was that the Respondents had not framed any CPF Rules 1982. No copy of the said Rules was ever provided. As evident from the appointment letters, at least 100 appointments on record proved that the Petitioners were governed by the CPF Rues of 1962. It was clearly mentioned under item 6 that they would be compulsorily required to contribute to the CPF Rules 1962. These ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondents after confirmation and thus they are entitled to protection Under Article 311 of Constitution. The Respondents have acted wrongly by the fact that NWDA implemented all recommendations of 4th Central Pay Commission except the changeover of CPF beneficiaries to Pension scheme, as all top officers who were responsible for implementing were on deputation and were already covered under the Pension Scheme. 10. The Respondents have not pursued the change-over of CPF to Pension Scheme in a proper way. NWDA had never informed either the Governing Body or Ministry of Finance that they are obligated to bring in effect the change-over. Their contention that they placed the issue on 30.3.2000 is per say illegal and arbitrary. The letter of Department of Expenditure of 16.03.2000 only provided advice that introduction to autonomous organization should not be made in routine way. The Governing Body of NWDA is bound by legal fictions for providing pension scheme. The legal fictions are created by reason of O.M. of 01.05.1987, acceptance of 4th Code of Civil Procedure recommendations, bye-law 28 and sub rule (6)(iv) of Rule 209 of General Financial Rules that service conditions of auton ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing. Since the rules and Regulation governing service conditions had been framed by NWDA, bye-law 28 has no application. 12. As NWDA is a temporary organization all officer are also temporary employees. No employees have been declared as permanent. The service rendered in NWDA by its employees is non-pensionable. The establishment expenditure of NWDA and for implementing the mandate of NWDA, grant-in aid is provided by Government. Without any specific approval of Ministry of Finance, Department of Pension and Pensioner's Welfare and Ministry of Water Resources the NWDA cannot introduce the pension scheme on lines of CCS Pension Rules. The Petitioners have misled the Court that the Government orders are adopted by the Respondent where rules are not framed. The Petitioners are covered Under Clause 7.2 in view of the O.M., it was examined by Department of Pension and Pensioners Welfare and Ministry of Finance. Both after examining the proposal did not agree to the contention of the Petitioners. The allegation, that NWDA had intentionally not circulated the O.M. is wrong. The changeover to Pension Scheme was not automatic as NWDA was following its own CPF Rules, 1982. The rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the date of the O.M. i.e. 01.05.1987, the relevant date of parity, the principle of parity cannot be applicable to the employees of NWDA. NWDA cannot be treated as an instrumentality of the State Under Article 12 of the Constitution merely on the basis that its funds are granted by the Central Government. In Zee Telefilms Ltd. and Anr. v. Union of India and Ors. (2005) 4 SCC 649, it was held by this Court that the autonomous bodies having some nexus with the Government by itself would not bring them within the sweep of the expression 'State' and each case must be determined on its own merits. Thus, the plea of the employees of NWDA to be treated at par with their counterparts in Central Government Under Sub-rule (6)(iv) of Rule 2009 of General Financial Rules, merely on the basis of funding is not applicable. 16. Even if it is presumed that NWDA is State Under Article 12 of the Constitution, the Appellants have failed to prove that they are at par with their counterparts, with whom they claim parity. As held by this Court in Union Territory, Chandigarh v. Krishan Bhandari (1996) 11 SCC 348, the claim to equality can be claimed when there is discrimination by the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jawahar Navodaya Vidyalaya Samiti ( JNVS ) demanded that they be brought under the GPF-cum-Pension Scheme like their counterparts in other educational institutions, like Kendriya Vidyalaya Samity ( KVS ), IITs, Sainik Schools, NCERT etc. However, they have continued to be governed only by CPF Scheme and were excluded from the Pension Scheme till 2004. It has been submitted on behalf of the Petitioners/Appellants that the Executive Committee of JNVS had adopted a resolution which proposed the application of Central Government Service Rules to its employees mutatis mutandis till the Samiti framed its own rules. But the resolution has not been shown to have been approved by the Government or District Inspector of Schools. In any case, the demands of the employees of JNVS have been supported as well as voiced by various Government functionaries including Ministry of Human Resource and Development through its letter to the Finance Ministry in 1998 seeking approval of the Finance Ministry to introduce the Pension Scheme to JNVS, Y.N. Chaturvedi Committee Report on Review of Management Structure and Operating Mechanism of Navodaya Vidayala Samiti, Parliamentary Committee on Functioning of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... criminatory and ultra vires of Articles 14, 19 and 21 of the Constitution of India. The High Court found that there existed no pension scheme for the employees of JNVS till the 2004 Scheme which was notified in 2008. It noted that the New Pension Scheme which was formulated by the Government in 2004 and notified in 2008 was in response to the demands of the employees of JNVS and that cut-off date was the domain of the employer. It relied on the judgment in All India Reserve Bank Retired Officers' Association v. Reserve Bank of India (1992) Suppl. (1) SCC 664, wherein the Supreme Court had held that when an existing scheme is liberalized, the employer cannot ordinarily grant the benefit to one class of employees and deny it to others by choosing arbitrary cut-off date. However, when a completely new scheme is introduced, whole new set of considerations are involved primarily being the financial implications. On these grounds the High Court dismissed the Writ petition stating that the Petitioner could not prove that NPS was arbitrary or discriminatory. 23. Following issues are involved in these matters for our consideration: (i) Whether O.M. dated 1-05-1987 applies to the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur in case it extends pension scheme to the JNVS employees and suggested that an annuity scheme may be formulated with LIC by employees contribution alone without any liability of the Government. Also the Finance Ministry has expressed its concern that extending such pension benefit on the grounds of parity would mean that all the autonomous bodies under Government of India would make similar demands and that would be financially infeasible. 28. In support of these submissions, learned Counsel for the Petitioners/Appellants has cited plethora of judgments wherein it was held that fundamental rights cannot be violated on the grounds of financial constraints and that the right to education is a fundamental right which cannot be jeopardized by compromising with quality of teachers in schools due to poor post service benefits. Reliance was also placed on Municipal Council, Ratlam v. Vardichand (1980) 4 SCC 162, All India Imam Organization v. Union of India (1993) 3 SCC 584, and Kapila Hingorani v. State of Bihar (2003) 6 SCC 1. 29. Learned Additional Solicitor General appearing for the Respondents argued that none of the cases relied upon by the Petitioners/Appellants involves ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nagement Structure and Operating Mechanism of JNVS, 154th report of the Department Related Parliamentary Committee on functioning of JNV which was laid before Lok Sabha on 02-03-2005, Cabinet Note prepared by the Ministry of HRD in March 2006 which specifically pointed out the need to extend the Pension Scheme under 1972 Rules to the employees of JNVS, 198th Report of the Department Related Parliamentary Committee submitted on 17-08-2007 which strongly recommended for implementing the Pension Scheme to the employees of JNV. Even the Ministry of Labour and Employment by its O.M. dated 07-09-2006 to the Ministry of HRD, recommended extension of Pension Scheme to NVS. 31. Learned Additional Solicitor General, appearing on behalf of the Respondents submitted that the issue of extending Pension Scheme of 1972 to the NVS employees is an administrative decision which is made keeping in mind various determining factors and that it cannot be said all schools and educational institutions constitute one class. She cited All India Sainik Schools Employees Association v. Defence Minister-cum-Chairman Board of Governors, Sainik School 1988 (1) Supp SCC 205, wherein the Sainik School employees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oyee but it flows from the rules of the Government. If the employee is entitled to pension as per the rules of the Government, his/her pension cannot be withheld by a simple executive order (Deokinandan Prasad v. State of Bihar and Ors. (1971) 2 SCC 330). Similarly, it is submitted that if the employee is not entitled to the pension as per the rules governing his/her service conditions, he/she cannot claim it as of right inherent to the employment. 36. Further, the Counsel for the Appellants' argument regarding the pension being part of the salary is accepted as the principle governing pension but it cannot be applied to the present case as the employees in the present case were not promised any pension at the time of their appointment and no deductions were made during their service towards any pension fund. Thus, it cannot be said that the employees have been denied what was rightfully theirs. 37. The Appellants had raised the issue of the New Pension Scheme which was notified in 2008 and whose cut-off date was 01.01.2004 in the writ petition and the SLP, however, it wasn't pressed during the arguments. In any case, they have claimed that the New Pension Scheme, is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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