Supreme Court of India
T.M. SAMPATH & ORS.versusSECRETARY, MINISTRY OF WATER RESOURCES & ORS.
- Citation
- 2015 INSC 51
- Decided
- 20 January 2015
- Disposal
- Dismissed
- Bench
- ANIL R DAVE
Holding
The O.M. of 1‑May‑1987 does not extend to employees of autonomous bodies like NWDA and JNVS, which are governed by their own CPF Rules and are not Central Government employees, thus their claim to parity and coverage under the 1972 Pension Scheme fails.
Summary
The Supreme Court dismissed appeals and writ petitions filed by employees of the National Water Development Agency (NWDA) and Jawahar Navodaya Vidyalaya Samiti (JNVS) who sought to be covered under the Office Memorandum (O.M.) dated 1‑May‑1987 and the Central Civil Service (Pension) Rules, 1972. The Court held that NWDA, an autonomous body, is governed by its own Contributory Provident Fund (CPF) Rules of 1982 and not by the Central Government rules, so the O.M. does not apply. Similarly, JNVS was not in existence on the cut‑off date of 1‑Jan‑1986 required by the O.M., and its employees are not Central Government employees. The claim for parity with Central Government employees under Rule 2009(6)(iv) of the General Financial Rules was rejected because the autonomous bodies are not "State" within Art.12 and no discrimination between similarly situated persons was shown. The Court also found no arbitrariness in the introduction of the New Pension Scheme (2004) and held that financial considerations are a legitimate factor. Consequently, all appeals and petitions were dismissed.
Issues considered
- Whether the Office Memorandum dated 1‑May‑1987 applies to employees of autonomous bodies such as NWDA and JNVS.
- Whether employees of NWDA and JNVS can be treated as Central Government employees for purposes of the 1972 Pension Rules.
- Whether the parity provision under sub‑rule (6)(iv) of Rule 2009 of the General Financial Rules can be invoked on the basis of funding alone.
- Whether the New Pension Scheme, 2004 is arbitrary or discriminatory towards employees of JNVS.
- Whether financial viability is a permissible consideration in denying extension of the 1972 Pension Scheme.
Legislation cited
- Central Civil Service (Pension) Ruless. 1972
- Constitution of Indias. Art.12, s. Art.14, s. Art.16, s. Art.31
- Contributory Provident Fund Ruless. 1962
- General Financial Ruless. Rule 2009(6)(iv)
- New Pension Schemes. 2004
- Societies Registration Acts. 1860
Subjects
pension entitlementautonomous bodyparity with central governmentOffice Memorandum 1987Contributory Provident FundNew Pension Scheme 2004discriminationArticle 12Article 14Article 16financial viability
Judgment
[2015} 1 S.C.R. 748
A T.M. SAMPATH & ORS.
v.
SECRETARY, MINISTRY OF WATER RESOURCES &
ORS.
(Civil Appeal No. 712-713 of 2015)
B
JANUARY 20, 2015
[ANIL R. DAVE, VIKRAMAJIT SEN AND
PINAKI CHANDRA GHOSE, JJ.]
c Service Law:
Pension - Entitlement - To the employees of an
autonomous body under the Ministry of Central Government
and to the employees of school, registered under Societies
0 Registration Act - Office Memorandum (O.M) dated
1.05.1986 issued by the Central Government providing for
change-over of employees from Contributory Provident Fund
scheme to Pension Scheme - Claim of the employees of the
autonomous body and of the school for change-over to the
E pension scheme on parity with Central Government
employees - The school empl9yees a/so challenged New
Pension Scheme (NPS) - Held. The autonomous body had
framed its own CPF Rules in 1982, therefore, the OM.
Applicable to the Central Government employees was not
applicable to them - The autonomous body cannot be treated
F as instrumentality of the State u!Art. 12 of the Constitution,
merely on the basis that its funds were granted by the Central
Government - The employees a/so failed to prove their parity
with Central Government employees - Discrimination cannot
be invoked in cases where discrimination sought to be shown
G is between the acts of two different authorities - The O.M. is
a/so not applicable to the employees of the school - The
school employees have also failed to prove any arbitrariness
and discrimination with respect to the NPS - No interference
H 748
TM. SAMPATH v. SECRETARY, MINISTRY OF WATER 749
RESOURCES
is warranted unless gross injustice is perpetrated - A
Constitution of India, 1950 - Arts. 12, 14 and 16 - Central
Civil Service (Pension) Rules, 1972 - New Pension Scheme,
2004.
Dismissing the appeals and the petitions, the Court 8
HELD:
CIVIL APPEALS NOS. 712-713 OF 2014 AND CIVIL
APPEAL NOS. 714-715 OF 2014
1. National Water Development Agency (NWDA) had
c
framed its regulation the Contributory Provident Fund
Rules, 1982 (CPF Rules) and they were duly approved by
the Governing Body of NWDA~ As NWDA. is an
autonomous body under the Ministry of Water
0
Resources, it has framed it own bye-laws governing the
employees. The Court must adopt an attitude of total non-
interference or minimal interference in the matter of
interpretation of Rules framed by autonomous
institutions. Thus, by reason that the employees are
governed by NWDA CPF Rules, 1982, the O.M. dated E
01.05.1987 is not applicable to the appellant-employees.
[Paras 14 and 17] [767-B-C, G]
Chairman & MD, Kera/a SRTC vs. K. 0. Varghese and
Ors. 2007 (8) SCR 164 = (2007) 8 sec 231 - relied on. F
2. 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. Even if it G
is assumed that the 1982 Rules did not exist or were not
applicable on the date of the O.M. i.e. 01.05.1987 which is
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 H
750 SUPREME COURT REPORTS [2015] 1 S.C.R
A are granted by the Central Government. 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 m"'ust be determined on its own
merits. [Paras 15 and 17] [768-B, F]
B
Zee Telefilms Ltd. & Anr. v. Union of India & Ors. 2005
(1) SCR 913 =(2005) 4 sec 649 - relied on.
3. Even if it is presumed that NWDA is "State" under
Article 12 of the Constitution, the appellants have failed
C to prove that they are at par with their counterparts, with
whom they claim parity. The claim to equality can be
claimed when there is discrimination by the State
between two persons who are similarly situated. The said
discrimination cannot be invoked in cases where
D discrimination sought to be shown is between acts of
two different authorities functioning as State under Article
12. Thus, the employees of NWDA cannot be said to be
'Central Government Employees' as stated in the O.M. for
its applicability. [Para 16] [768-C-E]
E
Union Territory, Chandigarh v. Krishan Bhandari 1996
(8) Suppl. SCR270 = (1996) 11 sec 348 - relied on.
Union of India v. S.L. Verma (2006) 14 SCALE 56, Sudhir
vs. TISCO (1984) UJ SC 986, Accountant General vs. Bakshi,
F 1962 Suppl. SCR 505 = AIR1962 SC 505, Steel Authority of
India Ltd. vs. Dibeyendu Bhattacharya (2011) 2 SLR 243 -
referred to.
WRIT PETITION (CIVIL) NOS. 556 & 518 OF 2012 AND
G CIVIL APPEAL N0.716 OF 2014.
4. For application of the Office Memorandum dated
1.5.1987 following three pre-requisites were to be fulfilled
by the employees : They must be Central Government
employees, (ii) They must be in service on 01-01-1986,
H and (iii) They must be CPF beneficiaries as on 01-01-
T.M. SAMPATH v. SECRETARY, MINISTRY OF WATER 751
RESOURCES
1986.Jawahar Navodaya Vidyalaya .Samiti (JNVS) was not A
in existence at the time of cut-off date applicable under
the .O.M. dated '01.05.1987 and also that the employees of
the JNVS cannot claim as of a right to be governed by
t~ Central Civil Service (Pension) Rules, 1972 as they
are not employees of the Central Government. It is s
undisputed fact that the Navodaya Vidyalaya Samiti was
established and regist~red under the Societies
Regi_stration Act, 1860 only on 28-02-1986, so its
employees cannot be in service as on 01-01-1986. Thus,
the said O.M. cannot apply to the JNVS employees. [Paras c
24-26] [772-D-H; 773-A-B]
5. The cut-off date is a domain of the employer and
so the introduction of new scheme of pension will be
done considering all the relevant factors including
financial viability of the same. No interference is D
warranted unless gross injustice perpetrated. The
Appellants have failed to prove any arbitrariness and
discrimination with respect to the New Pension Scheme.
[Para 38] [777-G; 778-A]
E
All India Reserve Bank Retired Officers' Association v.
Reserve Bank of India, 1991 (3) Suppl. SCR 256 = (1992)
Suppl. (1) SCC 664, Municipal Council, Rat/am v.
Vardichand 1981 (1) SCR 97 = (1980) 4 SCC 162, Al/India
Imam Organization v. Union of India, 1993 (3) SCR 742 = F
(1993) 3SCC 584, Kapila Hingorani v. State of Bihar, 2003
(1) Suppl. SCR 175 =(2003) 6 SCC 1, Associate Banks
Officers' Association v. State Bank of India and Ors. 1997
(4) Suppl. SCR 475 =1998 (1) SCC 428, AK. Bindal v. Union
of India, 2003 (3) SCR 928 = (2003) 5 SCC 163, All India G
Sainik Schools Employees Association v. Defence Minister-
cum-Chairman Board of Governors, Sainik School, 1988 (3)
=
Suppl. SCR 398 1989 (1) Supp SCC 205, S.C. Chandra
v. State of Jharkhand, 2007 (9) SCR 130 = (2007) 8 SCC 279,
State of Kera/a v. M Padmanabhan Iyer 1985 (2) SCR 476 =
H
752 SUPREME COURT REPORTS (2015] 1 S.C.R.
A (1985) 1SCC 429, Deokinandan Prasad v. State ofBihar &
=
Ors. 1971 (0) Suppl. SCR 634 (1971) 2 SCC 330 - referred
to.
Case Law Reference:
B (2006) 14 SCALE 56 referred to para 6
(1984) UJ SC 986 referred to para 13
1962 Suppl. SCR 505 referred to para 13
(2011) 2 SLR 243 referred to para 13
c 2007 (8) SCR 164 relied on para 14
2005 (1) SCR 913 relied on para 15
1996 (8) Suppl. SCR 270 relied on para 16
1991 (3) Suppl. SCR 256 referred to para 23
D 1981 (1)SCR97 referred to para 28
1993 (3) SCR 742 referred to para 28
2003 (1) Suppl. SCR 175 referred to para 28
1997 (4) Suppl. SCR 475 referred to para 29
E 2003 (3) SCR 928 referred to para 29
1988 (3) Suppl. SCR 398 referred to para 31
2007 (9) SCR 130 referred to para 32
1985 (2) SCR 476 referred to para 34
F 1971 (0) Suppl. SCR 634 referred to para 35
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
712-713 of 2015.
From the Judgment and Order dated 06.01.2011,
G 08.02.2010 and 18.03.2011 pf the High Court of Delhi at New
Delhi in W.P. (C) No. 3197 of 2010, OA No. 2037 of 2008 and
R.P. No. 90 of 2011 in W.P. (C) No. 3197 of 2010 Respectively.
WITH
H C.A. Nos. 714-715 and 716 of 2015.
T.M. SAMPATH v. SECRETARY, MINISTRY OF WATER 753
RESOURCES
W.P.(C) Nos. 518 and 556 of 2012. A
P. P. Rao, A. Mariar Puttam, S. B. Upadhyay,
Mahalakshmi Pavani, G. Balaji, Surajit Bhaduri, Akshat
Kulshreshta, Swarendu Chatterjee, S. S. Shamshery, Babita
Yadav, Subhashish R. Soren, Ruchi Kohli, Ranjit Sharma, B
Anisha Upadhyay for the Appellants.
Pinki Anand, ASG, Radhakanta Tripathy, Binu Tamta,
Rashmi Malhotra, D. S. Mahra, Natasha (For B. V. Balramdas)
for the Respondent.
c
The Judgment of the Court was delivered by.
PINAKI CHANDRA GHOSE, J. 1. Leave granted in all
the SLPs.
CIVIL APPEALS@ SLP(C) NOS.3106-3107 of 2012 AND D
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) E
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. F
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 G
the aegis and control, both administrative and financial, of the
Ministry of Water Resources, is fully funded by the Government
of India, headed by the Union Minister for Water Resources as
the President. The NWDA framed Rules and Regulations for
its smooth functioning. Whatever emoluments have been H
754 SUPREME COURT REPORTS [2015] 1 S.C.R.
A prescribed for the Government servants by the Central
Government Office Memorandum ("O.M.", for short) the same
apply mutatis mutandis to the employees of NWDA. By-law 28
of the NWDA also mandates that the rules and orders
applicable to the Central Government employees shall apply
B mutatis mutandis to the employees of the NWDA subject to
modification by the Governing Body concerning service
conditions and only in case of any doubt, the matter has to be
referred to the Governing Body for a decision. Bye-law 26(a)
provides for the emoluments structure for all employees that will
c be adopted by NWDA, with the approval of Ministry of Finance
(Department of Expenditure). Bye-law 28 provides that till such
time the NWDA frames its rules governing service conditions
of the employees, rules and orders applicable to Central
Government Employees shall apply mutatis mutandis, subject
D to such modifications as made by NWDA from time to time.
4. As per the appellants, NWDA had implemented all the
recommendations of the Fourth Central Pay Commission from
22.10.1986. The pay scales of the employees of NWDA were
revised as made applicable to Central Government employees.
E Pursuant to the recommendation of the Fourth Central Pay
Commission, Office Memorandum dated 01-05-1987 was
issued by the Ministry of Personnel, Public Grievance and
Pension, Department of Pensions and Pensioners' Welfare, for
switch-over of employees from Contributory Provident Scheme
F to Pension Scheme, according to which all Contributory
Provident Fund (CPF) Scheme beneficiaries, who were in
service of the Central Government on 1.1.1986, were deemed
to have come over to the Pension Scheme unless they
specifically opted out to continue under CPF Scheme. This
G Pension Scheme was formulated by the Government under the
1972 Pension Rules. The Office Memorandum dated 01-05-
1987 reads as under:
"Change-over of employees from Contributory Provident
fund Scheme to Pension Scheme
H
T.M. SAMPATH v. SECRETARY, MINISTRY OF WATER 755
RESOURCES [PINAKI CHANDRA GHOSE, J.]
(G.I., Dept. of Pensions & Pensioners Welfare, O.M. No.4/ A
1/87-P.l.C.I., dated the 1st May, 1987.)
The Central Government employees who are governed by
the Contributory Provident Fund Scheme (CPF Scheme)
have been given repeated. options in the past to come
B
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 C
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 D
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
E
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 F
exercised and conveyed to the Head of Office by
30 .09 .1987, in the form enclosed if the employees wish
to continue under the CPF Scheme. If no option is received
by the Head of Office by the above date the employees
will be deemed to have come over to the Pension · G
Scheme.
3.3 The CPF beneficiaries, who were in service on 1st
January, 1986, but have since retired and in whose case
retirement benefits have also been paid under the CPF
H
756 SUPREME COURT REPORTS (2015] 1 S.C.R.
A Scheme, will have an option to have their retirement
benefits calculated under the Pension Scheme provided
they refund to the government, the Government contribution
to the Contributory Provident Fund and the interest thereon,
drawn by them at the time of settlement of the CPF
B Account. Such option shall be exercised latest by
30.9.1987.
3.4 In the case of CPF beneficiaries, who were in service
on 1.1.1986, but have been since retired, and iFl whose
case the CPF Account has not already been paid, will be
c allowed retirement benefits as if they were borne on
pensionable establishments unless benefits settled under
the CPF Scheme.
3.5 In the case of CPF beneficiaries, who were in service
D on 1.1.1986, but have since died either before retirement
or after retirement, the case will be settled in accordance
with para 3.3 or 3.4 above, as the case may be. Options
in such cases will be exercised latest by 30.9.1987, by the
widow/widower and in the absence of widow/widower by
E the eldest surviving member of the family who would have
otherwise been eligible to family pension under the Family
Pension Scheme if such scheme were applicable.
3.6 The option once exercised shall be final.
F 3.7 In the types of cases covered by paragraphs 3.3 and
3.5 involving refund of Government's contribution to the
contributory provident fund together with interest drawn at
the time of retirement, the amount will have to be refunded
latest by the 30th September, 1987. If the amount is not
G refunded by the said date, simple interest thereon will be
payable at 10% per annum for period of delay beyond
30.9.1987.
4.1 In the case of employees who are deemed to come
over or who opt to come over to the Pension Scheme in
H
T.M. SAMPATH v. SECRETARY. MINISTRY OF WATER 757
RESOURCES [PINAKI CHANDRA GHOSE, J.]
terms of paragraphs 3.3, 3.4 and 3.5, the retirement and A
death benefits will be regulated in the same manner as in
case of temporary/ quasi-permanent or permanent
Government servants, as the case may be, borne on
pensionable establishment.
B
4.2 In the case of employees referred to above, who come
over or are deemed to come over to the Pension 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 C
at his credit in the CPF Account will be transferred to th~
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 D
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,
E
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 co_ntinue under the CPF Scheme from
1.1.1986 onward. (See Order (4) in this Appendix)
F
•
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 G
provident funds, such as Special Railway Provident Fund
or Indian Ordinance Factory Workers Provident Fund or
Indian Naval Dockyard Workers Provident Fund, etc.
necessary orders will be issued by the respective
administrative authorities. H
758 SUPREME COURT REPORTS [2015] 1 S.C.R.
A 6.2 These orders do not apply to Central Government
employees who, on re-employment are allowed to
subscribe to Contributory Provident Fund. These orders
also do not apply to Central Government employees
appointed on contract basis where the contribution to the
B Contributory Provident Fund is regulated in accordance
with the terms of contract.
6.3 These orders do not also apply to scientific and
technical personnel of the Department of Atomic Energy,
Department of Space, Department of Electronics and such
c other Scientific Department as have adopted the system
prevailing in the Department of Atomic Energy. Separate
orders will be issued in their respect in due course (See
Order (3) in this Appendix)
D 7.1 Ministry of Agriculture, etc. are requested to bring these
orders to the notice of CPF beneficiaries under them,
including those who have retired since 1.1.1986, and to
the families covered by paragraph 3.5 of these orders.
7.2 Administrative Ministries administering any of the
E
Contributory Provident Fund Rules, other than Contributory
Provident Fund Rules (India) 1962, are also advised to
issue similar orders in respect of CPF beneficiaries
covered by those rules in consultation with the Department
of Pension and Pensioners' Welfare.
F
8. These orders issue with the concurrence of the Ministry
of Finance, Department of Expenditure, vide their U.O.
No.2038/IS (Pres)/97, dated 13.4.1987."
G The above switch-over was applicable to all the Central
Government employees who were subscribing to the
Contributory Provident Fund under the Contributory Provident
Fund Rules, 1962. As stated in paragraph 7.2 of the said O.M., ·
this switch-over was not applicable ipso facto to autonomous
H bodies under the Ministries of Central Government who were
T.M. SAMPATH v. SECRETARY, MINISTRY OF WATER 759
RESOURCES [PINAKI CHANDRA GHOSE, J.]
subscribing to any other scheme other than CPF Rules 1962, A
and therefore, it directed the administrative bodies to issue
similar orders for CPF beneficiaries, in consultation with
Department of Pensions and Pensioners' Welfare.
Subsequently the employees of NWDA made representations
to NWDA and Ministry of Water Resources in view of the B
directions in the O.M., pu;suant to which the 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 c
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 me.eting held on 31.3.1983 approved introduction of D
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
E
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 F
Ministry of Finance dated 16.3.2000 ancfthe decision taken by
the Governing Body on 30.3.2000 that the implementation of
the O.M. was rejected by the Governing body, was appraised
to them.
G
5. The appellants filed O.A. No.2037 of 2008 before the
Central Administrative Tribunal assailing the decision of the
Governing Body dated 30.03.2000 rejecting their request to
switch-over to the Pension Scheme and letter dated 16.3.2000
issued by the Finance Ministry whereby the request of the H
760 SUPREME COURT REPORTS [2015] 1 S.C.R.
A appellants to switch-over to the Pension Scheme pursuant to
the O.M. dated 1.5.1987, had been turned down.
6. Before the Central Administrative Tribunal (hereinafter
referred to as "the Tribunal"),' when the case came up for
B hearing, the respondents took a preliminary objection as to the
cause of action.being barred by limitation on the ground that
though the O.M. is dated 01.05.1987, yet few members were
associated in the 30th meeting of the Governing Body having
knowledge of the resolution passed by the respondents on
30.03.2000 and that they cannot resort to a cause of action on
C the basis of RTI after 8 years, to file the above OA. The Tribunal
overruled the objection raised by the respondents and after
referring to various authorities, observed that fundamental right
of grant of pension does not attract limitation. Moreover, on
inaction the Government is precluded from r~ising the hyper
D technical plea to defeat the rightful claim of applicants. The
order passed in 2000 was reiterated to the applicants in 2007
thus the case of the applicants was good on merits. The Tribunal
after referring to the O.M., the bye-laws 26(a) & 28 and the
decision of this Court in Union of India v. S.L. Verma, (2006)
E 14 SCALE 56, held that there was nothing in the language of
clause 6.1 of the O.M. dated 01.05.1987, to suggest that the
said O.M. does not apply to the employees of autonomous
bodies controlled by Central Government and the said view
finds no support from clause 7 .2 of the 0 .M. The advice dated
F 16.03.2000 of the Ministry of Fina.nee to the Ministry of Water
Resources, at best, can be treated as an executive order and
as the same does not have retrospective effect, it has no
application to overrule the O.M. The Tribunal further held that
the NWDA/Ministry of Water Resources committed an error in
G seeking advice from Ministry of Finance regarding
implementation of the O.M. for the reason that 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
H Government. As per bye-law 28, since no rules were framed
T.M. SAMPATH v. SECRETARY, MINISTRY OF WATER 761
RESOURCES [PINAKI CHANDRA GHOSE, J.]
by NWDA regarding switch-over of its employees, the O.M. A
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 B
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", c
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 D
limitation before the High Court. The question that arose for
consideration before the High Court was as to the applicability
of the O.M. dated 01.05.1987 to the employees of NWDA and
whether reliance placed by the Tribunal upon the decision in
S.L. Verma's case was correct. The High Court after referring E
to clauses 6.1 and 7.2 of the O.M., held that the employees of
NWDA are not "Civilian Central Government employees" as
NWDA is an autonomous body working under administrative
control of the Ministry of Water Resources; the employees of
NWDA are governed by National Water Development Agency F
Contributory Fund Rules, 1982 and not Contributory Provident
Fund (India) Rules 1962, and in that view of the matter, they
are covered under third situation envisaged under clause 7.2
of the O.M. dated 01.05.1987 and not under the two situations
under clause 6.1 and clause 7.2 thereof. The High Court was G
of the opinion that the Ministry of Water Resources ideally
should have consulted the Department of Pensions and
Pensioners' Welfare for issuance of similar orders as O.M.
dated 01.05.1987. However, the Ministry of Water Resources
consulted the Department of Expenditure, Ministry of Finance H
762 SUPREME COURT REPORTS [2015] 1 S.C.R.
A in respect of the said matter instead of consulting the
Department of Pensions and Pensioner's Welfare. As regards
the reason given by the Tribunal on by-law 28 of the NWDA is
concerned, the High Court opined that a bare reading of the
provision makes it clear that rules and orders applicable to the
B Central Government employees shall apply mutatis mutandis
to the employees of NWDA only in cases where NWDA has
not framed its own rules and regulations. NWDA had framec'
its own CPF Rules in 1982 and thus, by-law 28 has no role to
play in the instant case. On careful comparison of facts of S.L.
c Verma case with the facts of the case at hand, the High Court
observed that there are two material facts which entirely
distinguish S.L. Verma case from the case at hand. First being
that the O.M. dated 01.05.1987 was fully applicable to the
employees in the S.L. Verma case while this is disputed in the
present case. The second fact being that the S.L. Verma case
0
proceeds on the premise that the recommendation of Fourth
Central Pay Commission pertaining to switching-over of the
employees from Contributory Provident Scheme to Pension
Scheme was accepted by the employer in that case. However,
in the present case, it was specifically pleaded by the
E 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.
F 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
G 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
H was that the Respondents had not framed any CPF Rules 1982.
T.M. SAMPATH v. SECRETARY, MINISTRY OF WATER 763
RESOURCES [PINAKI CHANDRA GHOSE, J.]
No copy of the said Rules was ever provided. As evident from A
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 appointments were made after the decision taken by the B
Governing Body on 31.3.1983. If the NWDA Rules, 1982 were
in operation, there was no reason for the respondent authority
not to mention in the offer of appointments that the employees
would be governed by NWDA Rules, 1982._ All orders of
Government of India in respect of 1962 Rules were adopted c
by NWDA from time to time. Under the bye-laws, the Governing
Body is empowered to make and amend any rules of NWDA.
But no separate CPF Rules, 1982 have ever been put up in
prescribed format like those of medical attendance, earned
leave and recruitment rules except introduction of CPF Scheme
D
on lines of CPF Rules, 1962. Going by the above facts the
employees should get all the beneCts which Central Government
Civilian Employees are entitled to. Under bye-law 28, only in
case of doubt the matter is referred to Governing Body for a
decision, there is no provision to switchover or application of
Pension Rules as envisaged through O.M. Thus when there was E
no working Rules and Regulation as to conversion from CPF
to Pension Scheme the order by the Pension Department
passed on 01.05.1987 would be applicable. The petitioners are
covered under clause 6.1 of O.M. read in conjunction with
clause 7.2 and in view of bye-law 28 the O.M. will be applicable F
mutatis mutandis. NWDA had also not circulated the O.M.
amongst the employees. Thus they never submitted their option
for switch over. Accordingly they are deemed to have opted by
implication of not giving option.
G
9. The Respondent acted in ma/a fide in implementing the
second O.M. for introduction of Death-cum-Retirement Gratuity
Scheme which was meant for Civilian Central government
employees who wanted to continue under CPF Rules 1962. It
is submitted that six to seven employees who were in a H
764 SUPREME COURT REPORTS [2015] 1 S.C.R.
A position to implement all the order had been absorbed by taking
pro-rata pension. The O.M. was equally applicable o
Autonomous bodies. The Government had failed to show that
it had refused to finance Autonomous bodies. It had acted
arbitrarily by rejecting the claim of Petitioners. The petitioner's
B Fundamental Rights under Article 14 and 16 had been violated
by not treating them at par with their similar counterparts in
Central Government, when the NWDA falls within the meanin0
of "State" as defined in Article 12 of Constitution. The
petitioners were in regular service of Respondents after
C 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
0
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
E 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
F 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 CPC
recommendations, bye-law 28 and sub rule (6)(iv) of Rule 209
G of General Financial Rules that service conditions of
autonomous organization receiving more than 50% of recurring
expenditure by way of grant in aid from Central Government
should be treated at par with their counterparts in Central
Government. In view of th~ decision in Sudhir vs. TISCO (1984)
H UJ SC 986, any rule which places absolute discretion of an
T.M. SAMPATH v. SECRETARY, MINISTRY OF WATER 765
RESOURCES [PINAKI CHANDRA GHOSE, J.]
administrative authority the power to grant or refuse pension A
or gratuity is arbitrary and violative of Article 14. The petitioners
are performing duties in the interest of State, and they should
be provided conditions and benefits of service in view of the
Court in Accountant General vs. Bakshi A (1962) SC 505. The
denial of retrial benefits is denial of livelihood after B
superannuation which is violative of Article 21.
11. The Respondents submitted that the same is wrong
and that there are two material facts which entirely distinguish
S.L. Verma's case from the present case. They dismissed the C
contention stating the same to be wrong and submitted that the
organization had framed its own CPF Rules, 1982 which were
duly approved by the NWDA Governing Body in its meeting held
on 31.03.1983. The CPF rules were made effective
retrospectively from 15.07.1982. The Respondents submitted
that when the CPF Rules 1982 WP.re framed on the lines of the D
1962 Rules, then mere mentioning of the wrong year doesn't
confer any constitutional right that the employees would be
governed by CPF Rules 1962. It is also noteworthy that NWDA
came into existence in 1982. Posts in different grades were
filled either by direct recruitment or by deputation. For this E
reason, even after NWDA CPF Rules were formulated, orders
were issued mentioning compulsory contribution to CPF under
CPF Rules 1962. Rule 10(2) of NWDA CPF Rules, 1982 says
that contribution shall be a percentage of the subscriber's
contribution or may be prescribed by Government. Rule 11 F
provides that the agency will pay interest at such rate as the
Central Government prescribes on subscriptions to CPF. It is
submitted that all orders of Central Government were not
automatically made applicable to employees of NWDA. After
acceptance of 4th pay recommendations the OM was issued G
extending benefits to employees governed by CPF Scheme.
As NWDA was following its own CPF Rules, the benefits were
extended by framing its own Rules in consultation with nodal
ministry. These rules were approved by Governing Body in the
21st meeting. Since the rules and regulation governing service H
766 SUPREME COURT REPORTS [2015] 1 S.C.R.
A conditions had been framed by NWDA, bye-law 28 has no
application.
i.h
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·
8
employees is non-pensionable. The establishment expenditure
of NWDA and for implementing the mandate of NWDA, gr~nt
in aid is provided by Government. Without any specific appr.oval
of Ministry of Finance, Department of Pension and Pensioner's
Welfare and Ministry of Water Resources the NWDA cannot
C 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
D 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
E CPF Rules, 1982. The rules and regulations in different
autonomous bodies are different so the petitioners cannot be
equated at par with their counterparts working in Government
Departments and Autonomous Bodies as contended in Union
of India vs. Or. Jai Dev Wig and Ors.
F
13. Based on the provisions in O.M. proposal for framing
of DCRG Rules for employees of NWDA was processed by
the officers on deputation from pensionable departments with
help from officers/employees. The officer and employees were
G fully involved and they cannot claim that they were totally ignorant
of the orders. The changeover of employees cannot be suo-
motto made applicable for NWDA employees. The petitioners
have failed to prove arbitrary action of the respondents and
hence Sudhir vs. T!SCO, (1984) UJ SC 986, and Accountant
General vs. Bakshi, AIR 1962 SC 505, has no application. In
H
TM. SAMPATH v. SECRETARY, MINISTRY OF WATER 767
RESOURCES [PINAKI CHANDRA GHOSE, J.]
view of the law laid down in Steel Authority of India Ltd. vs. A
Dibeyendu Bhattacharya (2011) 2 SLR 243, petitioners have
no cause of action.
14. In light of the facts and circumstances of this case and
the submissions made by the learned counsel on both sides,
B
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- C
interference or minimal interference in the matter of
interpretation of Rules framed by autonomous institutions. In
Chairman & MD, Kera/a SRTC vs. K. 0. Varghese and Others,
(2007) 8 SCC 231, this Court held:
D
"KSRTC is an autonomous corporation established under
the Road Transport Corporation Act, 1950. It can regulate
the service of its employees by making appropriate
regulations it that behalf. The High Court is not correct in
thinking that there is any compulsion on KSRTC on the E
mere adoption of Part 111 of KSR to automatically give all
enhancements in pension and other benefits given by the
State Government to its employees."
Thus, as the appellants are governed by the CPF
Rules1982, the O.M. applicable to Central Government
F
employees is not applicable to them.
15. On the issue of parity between the empioyees of
NWDA and Central Government employees, even if it is
assumed that the 1982 Rules did not exist or were not G
applicable on 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 H
768 SUPREME COURT REPORTS [2015] 1 S.C.R.
A Government. In Zee Telefilms Ltd. & Another v. Union of India
& 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
B 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
C 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 State
D between two persons who are similarly situated. The said
discrimination cannot be invoked in cases where discrimination
sought to be shown is between acts of two different authorities
functioning as State under Article 12. Thus, the employees of
NWDA cannot be said to be 'Central Government Employees'
E as stated in the O.M. for its applicability.
17. Thus, by reason that the employees are governed by
NWDA CPF Rules, 1982, the O.M. dated 01.05.1987 is not
applicable to the appellant-employees. Further, as they have
F not established that they are Central Government employees,
at par with their counterparts, their claim of parity with Central
Government Employees is also defeated.
18. In view of the discussion in the foregoing paragraphs,
we do not find any merit in these appeals whfoh are accordingly
G dismissed. There shall be no· order as to costs.
WRIT PETITION (CIVIL) NOS. 556 & 518 OF 2012 AND
CIVIL APPEAL @ SLP(C) No.19102/2012)
H
· T.M. SAMPATH v. SECRETARY, MINISTRY OF WATER 769
RESOURCES [PINAKI CHANDRA GHOSE, J.]
19. Writ Petition (Civil) Nos. 556/2012 and 518/2012 and A
Special Leave Petition (C) No.19102/2012 are other group of
matters arising out of same factual matrix and the point of
contention in all three matters is same. Writ Petition (Civil)
No.556/2012 has been filed by All India Navodaya Vidyalaya
Staff Association and Writ Petition (Civil) No.518/2012 has B
been filed by the Principals and other officials of Jawahar
Navodaya Vidyalaya and the employees of the Navodaya
Vidyalaya Samiti, for issuance of an appropriate writ in the
nature of mandamus or any other direction/s to the respondents
to introduce and implement CCS Pension Scheme, 1972 to all c
the employees of the Navodaya Vidyalaya Samiti. SLP(C)
No.19102/2012 has been filed by Shri P .N. Mishra against the
order dated 09.12.2012 passed by the High Court of
Jharkhand at Ranchi dismissing the writ petition filed by him.
20. The facts necessary for disposal of these cases, stated D
briefly, are that the idea of Jawahar Navodaya Vidyalaya was
conceptualized in 1985 and two model schools were started,
one each at Jajjhar in Haryana and Amravati in Maharashtra.
However, the Jawahar Navodaya Vidayala Samiti was
established under the Registration of Societies Act, 1960 on E
28-02-1986. It is stated that Jawahar Navodaya Vidyalaya
schools have been established under the aegis of the Ministry
of Human Resource Development, Government of India. The
employees of Jawahar Navodaya Vidyalaya Samiti ("JNVS")
demanded that they be brought under the GPF-cum-Pension F
Scheme like their counterparts in other educational institutions,
like Kendriya Vidyalaya Samity ("KVS"), llTs, 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/ G
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 H
770 SUPREME COURT REPORTS [2015] 1 S.C.R.
A 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
B 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 Navodaya
Vida ya la Samiti through its 154th, 184th and 198th Reports.
c All tnese committees have strongly recommended that the
employees of JNVS be brought at par with the employees of
Kendriya Vidayalaya and be given similar service benefits,
including pension under 1972 Rules. However, the major hurdle
in implementation of Pension Scheme to the employees of
D JNVS has been the financial constraints as the Finance Ministry
never gave a go-ahead for such implementation. To
substantiate their claim, JNVS engaged an actuary to
determine the financial feasibility of implementing the Pension
Scheme to JNVS employees and it was found that if the
E employees contribution upto 31.03.2005 is transferred to the
Pension Fund by 31.03.2005 and annual contribution of@18%
of salary on monthly basis from 01.04.2006, the implementation
of the scheme is financially viable.
21. The Central Government formulated New Pension
F Scheme, 2004 for the employees of the JNVS in response to
their repeated demands. This New Pension Scheme was
implemented from 01.01.2009. All the employees who had
joined prior to the date of implementation were given an option
to either continue under the CPF Scheme or to switch over to
G the New Pension Scheme. The cut-off date for this New
Pension Scheme was 01.01.2004; therefore, it was not
available to the employees who had joined the service prior to
cut-off date. However, the employees claim that New Pension
Scheme was also discriminatory as it is not at par with the
H Pension Scheme under 1972 Rules. The existing employees
T.M. SAMPATH v. SECRETARY, MINISTRY OF WATER 771
RESOURCES [PINAKI CHANDRA GHOSE, J.]
were put under Tier-II of the New Pension Scheme....and the A
employer's contribution was not available to them. Further, the
New Pension Scheme did not include any family pension,
medical benefits and death gratuity.
22. Present Appellant in SLP No.19102/2012, Shri P.N.
B
Mishra had filed a Writ petition in the Jharkhand High Court
seeking writ' of mandamus against the Government to
implement the Pension Scheme under 1972 Rules for the
employees of the Jawahar Navodaya Vidyalaya on the grounds
of arbitrary discrimination against them vis-a-vis employees of C
the Kendriya Vidyalaya and other educational institution
although run by autonomous bodies but very much under the
aegis of the HRD ministry whose employees are benefitted by
the Pension Scheme. The Petitioner therein also challenged the
New Pension Scheme notified in 2008 being discriminatory and
ultra vires of Articles 14, 19 and 21 of the Constitution of India. D
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
lormulated by the Government in 2004 and notified in 2008 was
in response to the demands of the employees of JNVS and that E
cut-off date was the domain of the employer. It relied on the
judgment in Alf 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 F
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 G
the Petitioner could not prove that NPS was arbitrary or
discriminatory.
23. Following issues are involved in these matters for our
consideration:
H
772 SUPREME COURT REPORTS [2015] 1 S.C.R.
A (i) Whether O.M. dated 1-05-1987 applies to the
employees of the NVS?
(ii) Whether the financial implication can be valid
consideration for denying pension?
B (iii) Whether the employees of the Navodaya Vidyalaya
are entitled to parity in pension with the employees
of other autonomous institutions like Kendriya
Vidyalaya, NCERT, National Open Schools and
Tibetan Schools Association?
c
(iv) Whether the New Pension Scheme, 2004 is
arbitrary or discriminatory?
24. Learned counsel appearing for the petitioners/
appellants have emphasized on the applicability of the Office
0 Memorandum of the Department Public Grievances and
Pensions Department of Pensions and Pensioners' Welfare
dated 01-05-1987 to the employees of JNVS just like it was
applied to the KVS. However, the learned Additional Solicitor
General has lucidly brought out the difference between the
E position of employees of the organization with respect to said
O.M. She has pointed out that for application of the said O.M.,
following three pre-requisites were to be fulfilled by the
employees:
F (i) They must be Central Government employees,
(ii) They must be in service on 01-01-1986, and
(iii) They must be CPF beneficiaries as on 01-01-1986.
G 25. The Respondents have contended that the JNVS was
not in existence at the time of cut-off date applicable under the
O.M. dated 01.05.1987 and also that the employees of the
JNVS cannot claim as of a right to be governed by the Central
Civil Service (Pension) Rules, 1972 as they are not employees
H of the Central Government.
T.M. SAMPATH v. SECRETARY, MINISTRY OF WATER 773
RESOURCES [PINAKI CHANDRA GHOSE, J.]
26. It is undisputed fact that the Navodaya Vidyalaya Samiti A
was established and registered under the Societies
Registration Act, 1860 only on 28-02-1986, so its employees
cannot be in service as on 01-01-1986. Thus, while first
condition is disputed, the second condition is clearly not fulfilled.
In contrast, the KVS was established in 1965. Therefore, we B
find merit in the argument of the learned Additional Solicitor
General that the said O.M. cannot apply to the NVS employees.
27. Further, it was submitted by the learned counsel for the
petitioners/appellants that the only reason for not providing
pension as per 1972 Rules has been the financial implications C
which becomes apparent from the letter of the Finance Ministry
dated 05-02-1999 to the HRD Ministry in which the Finance
Minister has clearly pointed out the excessive liability that the
Government would have to incur in case it extends pension
scheme to the JNVS employees and suggested that an annuity D
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 E
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 F
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, Rat/am v. Vardichand (1980) 4 SCC 162, All India G
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 n"ne of the cases relied upon by the
Petitioners/appellants involves right to pension and that H
774 SUPREME COURT REPORTS [2015] 1 S.C.R.
A Pension is not a Fundamental Right. She cited Associate
Banks Officers' Association v. State Bank of India and Ors.,
1998 (1) SCC 428, wherein this Court observed that many
ingredients go into shaping of the wage structure of any
organization, including the economic capability of the employer.
B Taking simplistic approach of granting higher remuneration to
workers of one organization because another organization had
granted its employees, may lead to undesirable results and the
application of the doctrine would be fraught with danger and
may seriously affect the efficiency and functioning of the
c organization. She also relied on A.K. Bindal v. Union of India,
(2003) 5 sec 163, which also states that the financial capacity
is a relevant consideration in deciding revision of pay scales.
Therefore, the learned Additional Solicitor General concluded
that financial capacity of the employer is an important factor
which cannot be ignored while fixing the wage structure and
0
thus, the demands of the employees of NVS are not founded
on sound principle of law.
30. The learned counsel for the petitioners/appellants have
argued that Right to equality is guaranteed under Article 14 of
E the Constitution which incorporates the principle of equal pay
for equal work and same has been violated in present case by
granting pension under 1972 Pension Rules to the employees
of some autonomous educational institutions like KVS, NCERT
etc. and denying that bermfit to the employees of NVS. The
F learned Counsel pointed out that parity in pay and pension be
granted, particularly, between the employees of NVS and the
employees of KVS as both these institutions are run by
autonomous bodies registered under Societies Registration
Act, 1860 under the aegis of the Ministry of Human Resource
G Development, Government of India and are fully funded by the
Government of India. Also, that the working hours of the
teachers in NVS are more as compared to the KVS and the
JNVS being fully residential schools, the burden on teaclling
and non-teaching staff is much more than Kendriya Vidalayas
H which are only day schools. The learned Counsel has brought
T.M. SAMPATH v. SECRETARY, MINISTRY OF WATER 775
RESOURCES [PINAKI CHANDRA GHOSE, J.]
to the fore recommendations of various committees and A
authorities which have supported the cause of the Petitioners,
namely, Review Committee set up by the Ministry of HRD under
Chairmanship of Shri Y.N. Chaturvedi to review the
Management Structure and Operating Mechanism of JNVS,
154th report of the Department Related Parliamentary B
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 c
Parliamentary Committee submitted on 17-08-2007 which
strongly recommended for implementing the Pension Scheme
to the employees of JNVS. 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.
D
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 E
educational institutions constitute one class. She cited All India
Sainik Schools Employees Association v. Dflfence Minister-
cum-Chairman Board of Governors, Sainik School, 1988 (1)
Supp SCC 205, wherein the Sainik School employees had
sought writ of mandamus to extend all service benefits and F
advantages to them as are applicable to the employees of the
KVS. In the said case the Supreme Court dismissed the petition
on the ground that the employees of Sainik Schools cannot be
considered employees of the Central Government nor can they
be treated at par with KVS employees. G
32. The Respondent also relied on S.C. Chandra v. State
of Jharkhand, (2007) 8 SCC 279, wherein this Court held that
the doctrine of 'equal pay for equal work' is applicable only
when there is total identity in two groups of employees. Further,
H
776 SUPREME COURT REPORTS [2015] 1 S.C.R.
A in A.K. Bindal (supra), this Court has held that employees of
Government companies are not Government servants. It is,
therefore, submitted on behalf of the respondents that the
petitioners/appellants are employees of the autonomous body
that is Navodaya Vidyalaya Samiti which has all the control on
B the organization.
33. It may be expedient to note what this Court observed
in the case of S.C. Chandra (supra):
" ... fixing of pay scales by the Courts by applying the
C principle of equal pay for equal work upsets the high
constitutional principle of separation of powers between
three organs of the state. Realizing this Court has in recent
years avoided applying the principle of equal pay for equal
work, unless there is complete and wholesome identity
D between the two groups (and there too the matter should
be sent for examination by an expert committee appointed
by the Government instead of the Court itself granting
higher 'pay)"
E 34. Further, the learned counsel appearing for the
~ppellants have contended that the pension is not a bounty
given to the employee at the will of the Government but a
valuable right vested in the employee and a right to receive
pension is a "property" under Article 31 of the Constitution of
India as was held in State of Kera/av. M. Padmanabhan Iyer,
F (1985) 1 SCC 429. Further, the learned Counsel for the
Appellants submitted that the pension is that part of the salary
which was not given to the employee during his/her service but
was kept for payment as pension, so now the employer cannot
deny the employees what is rightfully employees' because, if
G there was no pension to be paid, employees would have had
higber salary.
35. Learned Additional Solicitor General has submitted
that the right to pension is not an inherent right of every
H employee but it flows from the rules of the GcwP,rnment. If the
T.M. SAMPATH v. SECRETARY, MINISTRY OF WATER 777
RESOURCES [PINAKI CHANDRA GHOSE, J.]
employee is entitled to pension as per the rules of the A
Government, his/her pension cannot be withheld by a simple
executive order (Oeokinandan Prasad v. State of Bihar & 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 B
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 C
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.
0
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 also E
discriminatory and that the said cut-off date is arbitrary. The
learned counsel for the appellants submitted that the New
Pension Scheme is not at par with the Pension Scheme under
1972 Rules as it does not have provisions for death gratuity,
family pension and medical benefits. Also, the two tier system F
of the New Pension Scheme was challenged.
38. We have carefully perused the judgment of the High
Court of Jharkhand in WP. 4946 of 2008 against which SLP(C}
No.19102/2012 has been filed and we concur with the view of
the High Court. The cut-off date is a domain of the employer G
and so the introduction of new scheme of pension will be done
considering all the relevant factors including financial viability
of the same. No interference is warranted unless there is gross
injustice is perpetrated. The Appellants have failed to prove any
H
778 SUPREME COURT REPORTS [2015] 1 S.C.R.
A arbitrariness and discrimination with respect to the New
Pension Scheme.
39. In the light of the discussion in the foregoing
paragraphs, the writ petitions and the appeal are also
dismissed. However, there shall be no order as to costs.
8
Kalpana K. Tripathy Appeals & Petitions dismissed.
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