+Writ – 20745 of 2019
Case title: Commissioner Kendriya Vidyalaya Sangathan vs. Central Administrative Tribunal Bench And Another
Appearance
Petitioner : Narendra Pratap Singh
Respondent: – Rishabh Agarwal, Shivam Pandey, Vinod Kumar
CORAM: Hon’ble Saumitra Dayal Singh, J. Hon’ble Rajendra Kumar-IV, J.
Order dated:9.10.2023
Introduction
The High Court of Allahabad had contended that without certain evidence in the manner examined under the memorandum of office, it cannot opt to say that an employee staying under the previous pension scheme.
Facts of the case
writ petition has been filed by the Union of India against the order of the Central Administrative Tribunal, Allahabad Bench Allahabad, in Original Application No.330/203/2019, Jai Prakash Mishra versus Union of India and 4 others. By that order, the Tribunal has allowed that Original Application and declared the private respondent entitled to a pension under the GPF-cumPension scheme (hereinafter referred to as “the GPF scheme”) as against the CPF scheme to which the respondent had been held entitled to, by the petitioner Union of India.
The facts of the case fall within a very narrow compass. The petitioner was appointed to the post of Primary Teacher by Kendriya Vidyalaya Sangathan He retired on the post of Trained Graduate Teacher (Biology), At the time of his retirement the respondent was not granted the benefit of the GPF scheme. counsel for the petitioner Union of India would submit, that the respondent had opted in favor of the CPF scheme before the cut-off date of 28.02.1989. Referring to the Supplementary Affidavit filed in these proceedings, it has been strenuously urged-arising from that choice expressed, the respondent was allotted CPF Account Contributions were made accordingly. The respondent never objected to that arrangement during his years in service. Only after four years of retirement, a false claim was made by him, in that regard.
counsel for the respondent would contend, that the Office Memorandum created a legal fiction that the claim of all existing employees of the KVS would migrate to GPF scheme. That deeming fiction could be reversed by any employee by specifically opting to be retained under the CPF scheme. Therefore non-exercise of the option by the respondent gave rise to absolute legal effect caused by the legal fiction i.e. to migrate the respondent to the GPF scheme, on the own force of the law. No other or further action was required to be taken by the employee to perfect his right under the GPF scheme. Also, emphasis has been laid on the fact that that option had to be exercised only once that too before the cut-off
merely because the petitioner may have continued to make deductions and account for the same under the CPF scheme, it did not have the effect of overriding the legal fiction created by the Office Memorandum Such conduct on the part of the Union did not create any other legal right to the parties
Verdict of the High Court
The Court found, in no uncertain terms that it was admitted to the employee (in that case) that he had opted for the CPF scheme upon enforcement of the Office Memorandum dated 01.01.1989. Under finality attached to that option once exercised, the coordinate bench ruled against the employee concerning the claim to the benefits of the GPF scheme. it is noted, that in the present case, no such admission exists. Therefore, we have no hesitation in recording that the fiction in law created by Clause 3 of the Office Memorandum dated 01.09.1988 forcibly and on its own, made the petitioner’s case fall under the GPF scheme, forever.
It is contended by the court in command that The writ petition lacks merit and is accordingly dismissed. No order as to costs.
PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal falls into the category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”
Written By
Kaulav roy chowdhury
