Holding

The pre‑cut‑off election to remain in CPF is final and cannot be altered, but the Division Bench’s order allowing the Shashi Kiran batch to switch to GPF and directing the University to recoup CPF contributions with interest is upheld.

Summary

The University of Delhi issued a 1987 notification deeming all employees who were CPF beneficiaries on 1 January 1986 to "come over" to the General Provident Fund (GPF) unless they opted to stay in CPF before a cut‑off date of 30 September 1987. While 2,611 employees opted to remain in CPF and a further 626 exercised the option during two extensions, the University later granted eleven more extensions allowing 2,469 employees to switch to GPF. Three batches of writ petitions arose: (1) employees who made no election (deemed to be in GPF), (2) employees who exercised the CPF option after the cut‑off (allowed to switch to GPF), and (3) employees who had exercised the CPF option before the cut‑off (denied switch). The High Court allowed the first two batches and set aside the decision for the third batch on grounds of discrimination. The Supreme Court held that the notification’s language makes the pre‑cut‑off election final and no later switch‑over permissible, but affirmed the Division Bench’s direction that the Shashi Kiran batch be allowed the switch and that CPF contributions be recouped with 8% simple interest, dismissing all appeals.

Issues considered

The interpretation of the 01 May 1987 Office Memorandum regarding the deemed "come over" provision and the finality of the option to remain in CPF.
Whether employees who exercised the CPF option before the cut‑off date can later be compelled to switch to GPF.
The legality of the University’s extensions allowing later switch‑overs and whether differential treatment violates Article 14.

Legislation cited

Subjects

Service lawPensionary benefitsContributory Provident FundGeneral Provident FundSwitch‑overEqualityDiscriminationArticle 14Statutory interpretationExtension of deadline

Judgment

[2022] 7 S.C.R. 957 957

UNIVERSITY OF DELHI A
v.
SMT. SHASHI KIRAN & ORS. ETC.
(Civil Appeal Nos. 3797-3809 of 2022)
MAY 10, 2022 B
[UDAY UMESH LALIT AND VINEET SARAN, JJ.]
Service Law: Pensionary benefits – Contributory Provident
Fund-CPF and General Provident Fund and Pension Scheme-GPF
– Shift from CPF to GPF after the cut-off date – On facts, issuance
C
of Notification by the University on 25.05.1987 that all CPF
beneficiaries in service on 01.01.1986 would be deemed to have
“come over” to GPF under Statute 28-A unless such employees had
opted to continue under CPF – By cut-off date, of 30.09.1987, 2611
employees of the University opted to continue under CPF while the
rest of the employees, were deemed to have “come over” to GPF – D
Thereafter, grant of extensions for exercising the option to remain
under CPF wherein option exercised by 626 employees – University
kept extending the cut off date for switchover from CPF to GPF –
Cut off date for exercise of option under the last notification was
31.01.1999 – 2469 employees exercised their option for switchover
E
from CPF to GPF – After the deadline the option given for switchover
was incorrect – Writ petition by employees, those who did not exercise
their choice, but continued to make payment of contribution towards
CPF (first batch), employees who chose CPF in the first two
extensions but later wanted to shift to GPF (second batch), and
employees who chose CPF before the cut-off date but wanted to F
change to GPF (third batch) – Case of first and second batch
allowed - However, as regards the third batch, the Single Judge
held that the employees having consciously exercised the option to
be under CPF, their prayer of switchover cannot be accepted
whereas the Division Bench held that switch-over to the Pension
G
Scheme was permitted upto 31.12.2003 to several other autonomous
institutions, thus, denying the right to opt to the Pension Scheme in
the case of the third batch unsustainable – On appeal, held:
Differential treatment afforded to those 2469 employees as against
the employees in third batch of cases, not founded on any rationale
H
957
958 SUPREME COURT REPORTS [2022] 7 S.C.R.

A – If those 2469 employees could be afforded chance to exercise an
option of switchover to GPF, even though they had consciously
opted to be under CPF, on principle of parity or equality, the case
was certainly made out – Going by the intent of the notification,
those who were to opt for CPF, were an exception and the general
rule was that everybody after 01.01.1986 would normally be covered
B
by GPF – In the third batch of cases, the concern is with only 75
persons – Bulk of people namely 2469 employees were granted the
choice of reverse switchover and they were allowed all the benefits
under GPF – When the notification dated 01.05.1987 was issued,
the authorities were conscious of the possibility that all the employees
C may ‘come over’ to GPF and accordingly the fund was constituted
and the affairs were arranged – Shift of those 75 employees would
not in any way affect the strength and the character of the fund –
Thus, the decision by the Division Bench of the High Court in the
third batch does not call for any interference except to the extent of
direction for recouping of the contribution under CPF with 8% simple
D
interest pa.
Disposing of the appeals, the Court
HELD: 1.1 The common thread which ran through the
decisions of the Single Judge pertaining to three batches of cases,
E was that the text of the notification dated 01.05.1987 was clear
that if no option was exercised by the concerned employees before
the cut-off date, they would be deemed to have ‘come over’ to
GPF. It was only a positive option exercised by the employees to
continue to be under CPF which could have departed from such
deeming provision. Once exercised, the option was final and as
F such, there could be no switchover from those who had
consciously opted to be under CPF. Further, relying on the
decision in S.L. Verma, it was observed that any exercise of option
after the deadline or the cut-off would be inconsequential. It was
on this premise that the cases in R.N. Virmani batch of cases and
G N.K. Bakshi batch of cases were allowed by the learned Single
Judge. As regards Shashi Kiran batch of cases, the Single Judge
observed, that once the conscious decision was taken and option
was exercised to continue to be under CPF, there was “no room
for any come back situation.” The cases in the third batch were
therefore, rejected. [Para 12][995-E-H; 996-A]
H
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC. 959

1.2 As regards, the 2469 employees who were given facility A
of such switchover after the cut-off date, the Single Judge
observed that though they had also consciously opted to be under
CPF, were not before the Court, and as such, their cases had to
be left untouched. It is a matter of record and which aspect is
clear from the communications referred to that most of those
B
2469 employees, at the time of retirement, were given all the
benefits that were available to those who had opted to be under
GPF. Thus, those 2649 employees were certainly allowed to avail
the benefit of switchover which was not granted in favour of the
employees in the third batch of cases. Affirming the view taken
by the Single Judge in the first two batches of cases, the Division C
Bench set aside the view of the Single Judge only in the third
batch of cases i.e. in Shashi Kiran batch of cases. As the
observations made by the Division Bench indicate, the matter
was placed on the ground of discrimination and principles of
equality. [Paras 13, 14][996-B-D]
D
1.3 According to the notification dated 01.05.1987 two
situations were contemplated. First, the deeming provision in
terms of which the concerned employee was taken to have ‘come
over’ to GPF. The second situation being where a conscious option
was exercised before the cut-off date to continue to be under
CPF. R.N. Virmani batch of cases was therefore rightly allowed E
by the Single Judge and the Division Bench of the High Court,
as no conscious option was exercised by the cut-off date.
Consequently, the concerned employees must be deemed to have
‘come over’ to GPF. Logically, it would be immaterial whether
the concerned employee continued to make contribution F
assuming himself to be covered under CPF, even though
contributions were made by the concerned authorities. The benefit
was therefore rightly granted in favour of the employees and the
entire contribution was directed to be refunded. The University
has chosen not to appeal against that decision and thus the matter
has attained finality. [Para 15][996-E-G] G

1.4 Theoretically, extension of the same principle would
be that if no option was exercised before the cut-off date, but an
option was exercised after the cut-off date was extended; and if

H
960 SUPREME COURT REPORTS [2022] 7 S.C.R.

A no switchover could be allowed after the cut- off date, the
decisions rendered by the Single Judge and the Division Bench
in the N.C. Bakshi batch of cases were also quite correct.
Consequently, irrespective of the fact that the concerned
employees had exercised the option to continue to be under CPF,
such exercise of option would be non est in the eyes of law. That
B
in fact is the ratio of the decision in S.L. Verma’s case. Thus, both
these batches of cases were rightly decided by the Single Judge
and the Division Bench. Therefore, the appeal in N.C. Bakshi
batch of cases is dismissed. [Para 15][996-H; 997-A-B]
1.5 As indicated by the University in its affidavit filed after
C the Order dated 02.03.2020 was passed by this Court, 2611
employees had opted to be under CPF Scheme by the cut-off
date, i.e. by 30.09.1987. Additionally, 626 employees exercised
the option to be under CPF after the original cut-off, but within
initial two extensions granted by the University. Thus, as against
D the entire body of employees of the University, 3237 (2611+626)
employees had exercised the option to be under CPF. Out of
these 3237 employees, by virtue of further extensions granted
by the University, about 2469 employees exercised the reverse
option and opted to “come over” to GPF, leaving only 768 (3237-
2469) employees to be under CPF. The answers to queries ‘d’
E and ‘e’ given by the University in its affidavit indicate that the
number of employees in CPF Scheme was 86 while the petitioners
in Shashi Kiran batch were 75. Thus, the concern is with 75 original
petitioners in Shashi Kiran batch of cases. [Para 17][997-C-E]
1.6 As the Judgment of the Division Bench discloses, the
F matter was considered by it from the standpoint of discrimination
between the same category of persons, that is to say, those who
had opted to be under CPF. The different groups in the same
category were:- those who had not exercised any option but
continued to make payment of contribution towards CPF (R.K.
G Virmani batch of cases); those who exercised the option to be
under CPF but the option was exercised after the cut-off. Since
the option was exercised after the cut-off, they were deemed to
have ‘come over’ to GPF and were granted benefit (N.C. Bakshi
batch of cases); and those who consciously exercised the option

H
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC. 961

to be under CPF; but taking advantage of further options granted A
through 11 extensions to switchover, had been allowed to ‘come
over’ to GPF (2469 employees).It was against these three sub
categories coming from the same category of employees that the
argument of discrimination was considered by the Division Bench.
[Paras 20, 21][1002-E-H; 1003-A]
B
1.7 The matter was further considered by the Division
Bench in the context of the employees of educational institutions
such as IITs, who are directly under the Central Government,
just as the employees of the University, which is a Central
University. If the option was allowed to be exercised by granting
extension to the employees of the other educational institutions, C
the Division Bench did not find any reason why similar choice/
option could not be given to the employees in Shashi Kiran batch
of cases. [Para 21][1003-B-C]
1.8 The differential treatment afforded to those 2469
employees as against the employees in Shashi Kiran batch of D
cases, was not founded on any rationale. No justifiable reason
was coming forth. If those 2469 employees could be afforded
chance to exercise an option of switchover to GPF, even though
they had consciously opted to be under CPF, on principle of parity
or equality, the case was certainly made out. [Para 22][1003-D- E
E]
1.9 The matter would be considered from the perspective
of financial impact if the decision of the Division Bench is affirmed.
According to the notification dated 01.05.1987, the employees
joining the service after 01.01.1986 would always be under GPF. F
With respect to those who were in service on 01.01.1986, said
employees would be deemed to have “come over” to GPF unless
an option to continue to be under CPF was consciously exercised
before the cut-off date. Thus, when the Scheme was framed and
was sought to be implemented, the concerned authorities must
have taken into account the entire magnitude such as, the number G
of employees and the likelihood of impact on the management of
the fund, so that reasonable returns can be effected by way of
pension upon retirement of such persons. Going by the intent of
the notification, those who were to opt for CPF, were an exception
H
962 SUPREME COURT REPORTS [2022] 7 S.C.R.

A and the general rule was that everybody after 01.01.1986 would
normally be covered by GPF. It is in this context that the number
of original petitioners in Shashi Kiran batch of cases has to be
seen. The concerned is with only 75 persons. On the other hand,
the bulk of people namely 2469 employees were granted the
choice of reverse switchover and they were allowed all the
B
benefits under GPF. It can reasonably be said that when the
notification dated 01.05.1987 was issued, the authorities were
conscious of the possibility that all the employees may ‘come
over’ to GPF. With that possibility in mind, the fund was constituted
and the affairs were arranged. The shift of those 75 employees
C would not in any way affect the strength and the character of the
fund if a direction that the entire contribution made by the
authorities be returned with reasonable rate of interest is issued.
These 75 petitioners had approached the Court in the year 2010.
At this length of time, it is not as if any floodgates are going to
open and there will be drain on the resources of the State. A
D
direction can, therefore, be issued, as was done by the Single
Judge in his Judgment in R.N. Virmani batch of cases and which
aspect was mentioned in the letter dated 23.01.2017 referred to
in paragraph 8, for recouping the contribution under CPF with
8% simple interest per annum. [Paras 23-24][1003-E-H; 1004-
E A-D]
1.10 Considering the circumstances on record, the decision
rendered by the Division Bench of the High Court in Shashi Kiran
batch of cases does not call for any interference except to the
extent of direction for recouping of the contribution under CPF
F with 8% simple interest per annum. It is possible that at this
length of time, some of the employees in Shashi Kiran batch of
cases may not be interested in switchover to GPF. But an option
must be afforded to them in such manner as the authorities deem
appropriate. [Para 25][1004-E]
G Krishena Kumar vs. Union of India and others (1990)
4 SCC 207 : [1990] 3 SCR 352; Rajasthan Rajya Vidyut
Vitran Nigam Limited vs. Dwarka Prasad Koolwal and
others (2015) 12 SCC 51 : [2014] 13 SCR 492 –
distinguished.
H
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC. 963

Union of India and another v. S.L. Verma and others A
(2006) 12 SCC 53 : [2006] 9 Suppl. SCR 770; D.S.
Nakara vs. Union of India (1983) 1 SCC 305 : [1983]
2 SCR 165 – referred to.
Case Law Reference
[2006] 9 Suppl. SCR 770 referred to Para 6 (ii) B

[1983] 2 SCR 165 referred to Para 18
[1990] 3 SCR 352 distinguished Para 21
[2014] 13 SCR 492 distinguished Para 21
C
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.3797-
3809 of 2022.
From the Judgment and Order dated 24.08.2016 of the High Court
of Delhi at New Delhi in LPA Nos.410-414, 416-418, 558, 594, 667, 672
and 780 of 2014. D
With
Civil Appeal Nos.3850, 3852, 3851 and 3810-3849 of 2022.
Ms. Madhavi Divan, ASG, Aman Sinha, P. S. Patwalia, K. K. Rai,
Anip Sachthey, Meet Malhotra, Sr. Advs., Sanjai Kumar Pathak, Nupoor E
Sinha, Ms. Shashi Pathak, Arvind Kumar Tripathi, Ms. Vishakha, Parthiv
Goswami, Sahil Monga, Gurmeet Singh Makker, Ms. Shefali Jain, Rajesh
Prasad Singh, S. M. Deenadayalan, Ms. T. Archana, Anshul Rai, Ms.
Sreoshi Chatterjee,, Ramkrishna Veerendra, Tanuj Khurana, Ms. Anjali
Chauhan, Ankur Gupta, Nar Hari Singh, S. K. Pandey, Awanish Kumar,
Chandrashekhar A. Chakalabbi, Ravi S. Chauhan, Vikas Mehta, Kaushal F
Sarkar, Pratap Shanker, Ankit Kumar, Swetank Shantanu, Arvind Kumar
Gupta, Prashant Bhardwaj, Rishi Bharadwaj, Shaurya Dogra, Siddhartha
Shankar Ray, Saksham Maheshwari, Jagjit Singh Chhabra, Amar Nath
Gupta, Kamlesh K. Maurya, Santosh Kumar Sahu, Rameshwar Prasad
Goyal, Satyajit A. Desai, Ms. Anagha S. Desai, Satya Kam Sharma, G
Vikas Kumar, Manish Paliwal, Devmani Bansal, Ateev Mathur, C. S. N.
Mohan Rao, R. Santhana Krishnan, Lokesh Kumar Sharma, Ms. Sujeeta
Srivastava, Ms. Abha R. Sharma, Yatendra Singh Jafa, Rahul Pratap,
Romy Chacko, Shakthi Chand Jaidwal, Santosh Kumar-I, Ms. Isha Jain,
Mohinder Jit Singh, Hardik Rupal, Amit Kumar, Arjun Harkauli, Ms. H
964 SUPREME COURT REPORTS [2022] 7 S.C.R.

A Malini Poduval, Abhijat P. Medh, Aditya Ranjan, D. S. Chauhan, Satpal
Singh, Mayank Goel, M/s UNUC Legal LLP, Advs. for the appearing
parties.
The Judgment of the court was delivered by
UDAY UMESH LALIT, J.
B
1. Delay condoned. Leave granted.
2. These appeals by the University of Delhi (‘the University’, for
short) are directed against the judgment and order dated 24.08.2016
passed by the Division Bench of High Court of Delhi at New Delhi in
C Letters Patent Appeals1 which in turn had challenged the decisions of
the learned Single Judge of the High Court dated 30.04.2014 in various
Writ Petitions2.
3. The basic facts leading to the filing of the Writ Petitions in the
High Court are as under:
D a. All the writ petitioners are members of the teaching staff
working in various colleges and institutions which are either
affiliated to, or are part of the University. The conditions of
service of the teaching staff are somewhat analogous to
the employees of the Central Government.
E b. On 06.06.1985, the Central Government employees who
were governed by the Contributory Provident Fund (for short,
“CPF”) were permitted to opt for General Provident Fund
and Pension Scheme (for short, “GPF”). Thereafter a

F 1
LPA Nos.410-414, 416-418, 558, 594, 667, 672 and 780 of 2014; 554, 606, 607, 608,
609, 610, 615, 616, 617, 618, 619, 622, 623, 624, 625, 626, 627, 628, 629, 632, 633,
635, 636, 637, 638, 639, 640, 641, 642, 643, 644, 645, 646, 647, 648, 650, 651, 653,
654, 655 of 2014 and other connected appeals.
2
Writ Petition No. 1490 of 2006 and connected matters, Writ Petition(C) Nos. 5631 of
2010, 1216 of 2011, 3631 of 2011, 3863 of 2011, 5495 of 2011, W.P.(C)No. 6009 of
2011 & CM No. 12140 of 2011, W.P.(C)No.5106 of 2011 & CM No. 10351 of 2011,
G W.P.(C)No.5975 of 2010 & CM No. 11775 of 2010, W.P.(C)No. 5979 of 2010 & CM
No.11782 of 2010, W.P.(C)No.5980 of 2010 & CM No. 11784 of 2010, W.P.(C)No.5981
of 2010, W.P.(C)No.5982 of 2010 & CM No. 11787 of 2010, W.P.(C)No. 5985 of 2010
& CM No. 11793 of 2010; W.P.(C)No
.2036 of 2010, W.P.(C)No.2037 of 2010, W.P.(C)No.3095 of 2010 & CM No. 7718 of
2011, W.P.(C)No. 5759 of 2010, W.P.(C)No.7310 of 2010 and W.P.(C)No.8560 of
H 2010.
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC. 965
[UDAY UMESH LALIT, J.]

notification was issued by the Central Government with A
respect to the changeover of the employees from CPF to
GPF. Said notification issued on 1.5.1987 contemplated that
all CPF beneficiaries who were in service on 01.01.1986
and were still in service would be deemed to have “come
over” to GPF unless a contrary option was exercised by
B
them in writing by 30.09.1987 to continue to be under CPF.
The relevant paragraphs of said notification were:
“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 over to the Pension Scheme. The last such C
option was given in the Department of Personnel and
Training. O.M. No. F 3 (1) - Pension Unit/85, dated the
6” June, 1985. However, some Central Government
employees still continue under the CPF Scheme. The
Fourth Central Pay Commission has recommended that D
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 E
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. F

3.2 The employees of the category mentioned above
will, however, have an option to continue under the CPF
Scheme, if they so desire. The option will have to be
exercised and conveyed to the concerned Head of Office
by 30-9-1987, in the form enclosed if the employees wish G
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 Scheme.
*** *** *** H
966 SUPREME COURT REPORTS [2022] 7 S.C.R.

A 3.6 The option once exercised shall be final.
*** *** ***
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
B such other Scientific Departments 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.]
8. These orders issue with the concurrence of the
C Ministry of Finance, Department of Expenditure, vide
their U.O. No.2038/IS(Pers.)/87, dated 13-4-1987.”
c. Around the same time, a communication was addressed on
05.05.1987 by the Central Government to the Registrar of
the University stating that the Hon’ble President of India in
D his capacity as Visitor of the University was pleased to
approve the proposal of the University for amending Statute
28A, giving benefits to its employees relating to GPF, CPF,
gratuity etc. “which are more advantageous to the
employees of the University in pursuance to similar order
issued by the Central Government with respect to their own
E employees”. The amended Statute 28-A read as under:
“28-A: In this Statute unless there is anything repugnant
in the subject or context:
(1) * * * *
(2) * * * *
F
(3) * * * *
(4) * * * *
(5) The sanction and payment of retirement benefits
admission under this Statute shall regulated by such
G procedural instructions as would be issued by the
Executive Council.
Amendment approved:
Add the following as Clause 5 in Statute 28-A and
Clause 5 and 6 may be renumbered as Clause 6 and 7
H respectively.
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC. 967
[UDAY UMESH LALIT, J.]

“(5) As and when the Central Government amends Rules A
giving more benefits to its employees relating to General
Provident Fund, Contributory Provident Fund, Pension
Gratuity, etc. which are advantageous to the employees
of the University, the employees of the University will
be entitled to the same benefits with effect from the
B
date such amendment is brought into force by the Central
Government with respect to its employees.”
(6) * * * *
(7) * * * *”
d. Close on the heels, a notification was issued by the University C
on 25.05.1987 stating that all CPF beneficiaries in service
on 01.01.1986 would be deemed to have “come over” to
GPF under Statute 28-A unless such employees had opted
to continue under CPF. Paragraph ‘5’ of the notification
was to the following effect: D
“5. Pensionary benefits to temporary employees -
Temporary employees, who retire on superannuation or
on being declared permanently incapacitated for further
service by the appropriate medical authority after having
rendered temporary service of not less than 10 years, E
shall be eligible for grant of superannuation/ invalid
pension, retirement gratuity and family pension on the
same scale as admissible to permanent employees.
Further it has also been decided by the Government of
India that pensioners who have commuted a portion of F
their pension and on 1.4.85 or thereafter have completed
or will complete 15 years from their respective dates of
retirement will have their commuted portion of pension
restored.
lt was also recommended by the Pay Commission that
G
all CPF beneficiaries who are in service on 1.1.1986
should be deemed to have come over to the pension
scheme on that dates unless they specifically opt out to
continue under the CPF Scheme. This recommendation
has also been accepted by the Government of India.
H
968 SUPREME COURT REPORTS [2022] 7 S.C.R.

A Keeping in view the revised pensionary benefits, it has
been approved by the Vice-Chancellor that the above
decision of the Government of India regarding option
also be adopted in the University. It has, therefore, been
decided that all Contributory Provident Fund
beneficiaries who are in service on 1.1.1986 in the
B
University should be deemed to have come over to the
pension scheme under Statute 28-A Appendix ‘A’ unless
they specifically opt out to continue under CPF Scheme
(Statute 28-A, Appendix ‘B’).
It has further been decided that in respect of categories
C B, C & D beneficiaries for whom the revised grades
have been announced and implemented, they be given
three months’ time from the date of this notification for
opting out to continue under CPF Scheme (Statute 28-A
Appendix ‘B’). For category A - CPF beneficiaries the
D period of three months’ time for the same purpose will
be reckoned from the date of adoption by the University
of the revised pay scales based on the IVth Pay
Commission’s recommendations, UGC committee’s
Report. Employees who have already opted for the
scheme under Statute 28-A Appendix ‘A’ will not be
E eligible for any further option. These orders ‘would also
-be applicable to the employees of the Colleges affiliated
to the University of Delhi and receiving maintenance
grant from ‘the ‘University Grants Commission. The
contents of this notification shall be brought to the notice
F of each employee and his/ her acknowledgement for
having noted these orders obtained and opt in the office
record.”
e. By cut-off date, that is to say by 30.09.1987, 2611 employees
of the University had opted to continue under CPF while
G the rest of the employees, by virtue of deeming provision of
the concerned notification referred to above, were deemed
to have “come over” to GPF.
f. However, the University kept granting extensions for
exercise of option to remain under CPF. First two extensions
were, thus, granted vide communications dated 5.10.1987
H
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC. 969
[UDAY UMESH LALIT, J.]

and 21.01.1988 for exercising the option to remain under A
CPF. About 626 employees exercised such option to
continue under CPF during two extensions granted by the
University.
g. Thereafter 11 further options were granted by the University
whereunder there could be a switchover from CPF to GPF. B
These options were granted vide Notifications dated
9.2.1989, 4.6.1989, 17.9.1989, 12.07.1991, 20.12.1991,
16.07.1993, 12.07.1994, 15.03.1996, 09.01.1998, 04.03.1998
and 16.11.1998. The cutoff date for exercise of option under
the last notification was 31.1.1999. About 2469 employees
exercised option during periods covered by these 11 C
notifications to switchover from CPF to GPF.
h. On 25.5.1999, a letter was addressed by the University
Grants Commission (“the UGC”, for short) to the Registrar
of the University stating that the option in terms of the
notification dated 01.05.1987 issued by the Central D
Government could be exercised only upto 30.09.1987; and
if no option was received by said date the employees were
deemed to have “come over” to the pension scheme and
thus, option once exercised, was final. Further, the revised
option given by the University to the concerned employees
to switch over from CPF to GPF after the deadline was E
incorrect and therefore, the cost of benefit, if any, to such
employees must be met by the University from its own
sources. The relevant portion of the communication was:
“As you are already aware, the employees of University
of Delhi are governed by Central Government GPF/CPF F
rules. The Government of India vide their O.M.No.4/I/
87-P.I.C, dated the 1st May, 1937 (copy enclosed) had
given a cut-off date as 30.09.87 to the employees for
exercising their option in case they desired to continue
to be governed by the CPF Scheme, and in case no
G
such option was exercised by the above date all the
employees were deemed to have come over to the GPF
Scheme of the Government of India. It was also made
clear that no extension for exercising option for continuing
in the CPF scheme will be admissible as per Government
of India’s rules after 30.9.87. H
970 SUPREME COURT REPORTS [2022] 7 S.C.R.

A As per guidelines of Government of India, all CPF 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) have therefore automatically come over to
the Pension scheme. However, the employees who have
exercised an option to continue under the CPF scheme,
B
if they so desired have done so after due consideration
by the specific date i.e. 30.09.87. As the option was
given upto 30.9.87 and it was clearly stated in the order
that if no option is received by the above date the
employees will be deemed to have come over to the
C Pension Scheme and the option once exercised shall be
final. The revised option again given by the employees
to come back to GPF Scheme from CPF Scheme and
accepted by the University is absolutely incorrect and
against the rule. I would therefore request you to please
furnish a list of employees who have been given the
D
extension of change over from CPF to GPF after 30.9.87
and the benefit of retirement liabilities for such employees
may be met by the University from their own sources
and the same would only be treated as unapproved
expenditure while determining the maintenance grant of
E the University. The next installment of maintenance grant
would only be released after the receipt of above
information.”
i. In response to a communication dated 18.09.1999 addressed
by the UGC with respect to the subject regarding option of
F shifting from CPF to GPF, the Ministry of Human Resource
Development, Department of Secondary Education and
Higher Education, Government of India (“MHRD” for
short) responded on 19.06.2000 and stated:
“…. That Ministry has regretted its inability to allow
G one more option to change over from CPF Scheme to
the GPF Scheme to the employees of UGC and the
institutions maintained by it.”
j. On 8.08.2001, the UGC again requested MHRD to allow
one extension for exercise of option to switch over from
CPF to GPF. The proposal was, however, rejected by the
H
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC. 971
[UDAY UMESH LALIT, J.]

Finance Ministry of the Central Government on the ground A
that the cost of introduction of pension scheme was much
higher than the CPF and that such cost would continuously
increase with every revision in the scale of pay and further
that acceptance of such proposal would have wide
repercussions with many similarly placed autonomous bodies
B
demanding similar extension.
4. In these circumstances, Writ Petitions were filed in the High
Court claiming diverse reliefs. These petitions, by order dated 21.05.2012
passed by the learned Single Judge of the High Court, were categorized
into three categories.
a. Employees who had not exercised any option at all and C
thus by virtue of the deeming provisions contemplated in
the notification dated 01.05.1987, were deemed to have
“come over” to GPF; but having continued to make
contributions under the old CPF scheme were being treated
to be under CPF. This batch was subsequently referred to D
as “R.N. Virmani batch of cases” in the decisions rendered
by the High Court.
b. Employees who had not exercised the option by the cutoff
date contemplated under the notification dated 01.05.1987
and were thus deemed to have “come over” to GPF; E
however, such employees had exercised the option to remain
under CPF scheme during first two extensions granted by
the University between 01.10.1987 to 29.02.1988; and were
now praying that they be allowed to be under GPF. This
batch of cases was described to be “N.C. Bakshi batch of
cases” in the decisions rendered by the High Court. F
c. Employees who had exercised positive option by 30.09.1987
i.e. by the original cutoff date contemplated under
notification dated 1.5.1987 and had chosen to remain under
CPF Scheme; but were now demanding that they be given
further option and were therefore praying for extension of G
the cut-off date to enable them to “come over” to GPF.
This group of matters was referred to as “Shashi Kiran
batch of cases” in the decisions rendered by the High Court.
5. Thus, the employees in all three batches of cases desired to be
under GPF rather than under CPF and were therefore praying for a
H
972 SUPREME COURT REPORTS [2022] 7 S.C.R.

A chance to facilitate such switchover. The reason for such attempts was
spelt out with clarity in one of the letters3 addressed by the University to
the UGC as under:
“...I have received representations from 376 teachers of
constituent colleges and departments of this University
B addressed to the Chairperson, UGC, requesting for the grant
of a fresh option to switch over from the CPF to the GPF cum
pension scheme. All of them were appointed before 1.1.1986.
The representations have drawn attention to the huge disparity
between those on the GPF cum pension scheme and those on
the CPF scheme. This is because over the years and especially
C in the last few years - Government decisions have led to a
situation where those entitled to pensionary benefits have been
placed in a far more advantageous position that those entitled
to CPF schemes. As a result of the Fifth Pay Commission’s
recommendations, 40% of pensions can now be commuted,
D giving a huge lump payment to pensioners. The communication
is restored after fifteen years. Those on CPF get only a lump
payment which includes their own contribution. Pensions are
now fully indexed to inflation and their nominal value rises twice
every year, in the case of those on CPF, the Government -
keeping in view its overall fiscal and macro-economic strategy
E has reduced interest from a high of 12% in 1998 to 8% today.
While the high interest rates which made CPF schemes
attractive have come down, the nominal value of pensions
keeping going up because of inflation indexing. All this has
created a significant disparity between those on GPF-cum-
F pension and those on CPF schemes. According to a rough
calculation, this could run into several lakh rupees over a period
of time in the case of two identically placed professors. I think
there is merit in the request that those who continue to be on
the CPF scheme should be given a fresh option to switch over
to the GPF cum pension scheme instead of taking the legalistic
G stand that those on CPF opted for the scheme. The Government,
as a fair employer, may kindly take action to remove the
growing inequality between those on CPF and those on GPF

3
Letter dated 21.12.2006, which was extracted in the decisions of the learned Single
H Judge as well as the Division Bench of the High Court.
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC. 973
[UDAY UMESH LALIT, J.]

cum pension schemes. I would, therefore, request you to please A
take up the matter with the Ministry of HRD and the Ministry
of Finance to allow a fresh option to those on the CPF scheme
to come over to the GPF-cum-pension scheme...”
6. These three batches of cases were disposed by the learned
Single Judge of the High Court by three separate decisions dated B
30.04.2014
A) R.N. Virmani batch of cases
i) The reasoning that weighed with the learned Single Judge
was:-
C
“14. In my view, the answer to the question: as to whether
employees, who had not issued any overt communication
with regard to his / her desire to continue with the CPF
Scheme, stood covered by the Pension Scheme; would
largely depend upon the provisions of O.M. dated
01.05.1987, itself. D
14.1 It is not in dispute before me that O.M. dated
01.05.1987 was adopted by the University of Delhi vide
notification dated 25.05.1987 read with notification dated
04.06.1987, pursuant to an approval received in that behalf
from its Vice Chancellor. Therefore, much would depend, E
in my opinion, upon the language of the relevant clause of
O.M. dated 01.05.1987. The said O.M. clearly applies to
all employees who were CPF beneficiaries on 01.01.1986.
Clause 3.1 read with clause 3.2 is plainly indicative of the
fact that all such employees, who are CPF beneficiaries, F
shall be deemed, to have, come over to Pension Scheme
unless the employee(s) concerned submitted his or her
option to continue with the CPF Scheme. This option had
to be submitted in the prescribed form to the concerned
Head of Office by 30.09.1987. In case, no option was
received by the Head of Office by 30.09.1987, employees G
were deemed to have come over to the Pension Scheme.
Therefore, by legal fiction once, the deeming clause kicked-
in, those who did not submit their option form for continuation
under the CPF Scheme stood covered by the Pension
Scheme.”
H
974 SUPREME COURT REPORTS [2022] 7 S.C.R.

A ii) To arrive at the conclusion as mentioned above, the learned
Single Judge relied inter alia upon the following passages
from the decision of this Court in Union of India and
another v. S.L. Verma and others4:
“..4. The Central Government as also the respondent
B No.14-Bureau of Indian Standards have proceeded on
some legal misconception that it was obligatory on the
part of the said employees to give a positive option for
the said purpose. For the first time on 2.2.1999, the
respondent No.14 requested the Union of India for grant
of another chance to the respondents to switch over to
C pension scheme stating that they purported to have
exercised their option for CPF Scheme on the cut-off
date.
7. The Central Government, in our opinion, proceeded
on a basic misconception. By reason of the said Office
D 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 Scheme. It is not disputed that the said
respondents did not give their options by 30.9.1987. In
E that view of the matter respondent Nos. 1 to 13 in view
of the legal fiction created, became members of the
Pension Scheme. Once they became the member of
the Pension Scheme, Regulation 16 of the Bureau of
Indian Standards (Terms and Conditions of Service of
Employees Regulations, 1988) had become ipso-facto
F applicable in their case also. It may be that they had
made an option to continue with the CPF Scheme at a
later stage but if by reason of the legal fiction created,
they became members of the Pension Scheme, the
question of their reverting to the CPF would not arise.
G The respondent No.14 has correctly arrived at a
conclusion that an anomaly would be created and in fact
the said purported option on the part of respondent No.1
to 13 was illegal when a request was made by
respondent No.14 to the Union of India for grant of
4
H (2006) 12 SCC 53
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC. 975
[UDAY UMESH LALIT, J.]

approval so that all those employees shall come within A
the purview of the Pension Scheme. In our opinion, the
Ministry of Finance proceeded on a wrong premise that
the Pension Scheme was not in existence and it was a
new one. Two legal fictions, as noticed hereinbefore,
were created, one by reason of the memorandum, and
B
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, the respondent nos.1 to 13
would be deemed to have switched over to the pension
WP(C) 1490-1507/2006 & connected matters Page 26 C
of 33 scheme, which a fortiori would mean that they no
longer remained in the CPF scheme...”
(Emphasis supplied by the learned Single Judge)
iii) The argument made by the respondents was dealt with as
under D

“16. The argument raised before me by the respondents,
which veered towards approbation, was based on the fact
that petitioners had continued to contribute under the CPF
Scheme. This submission would not cut much ice with me,
having regard to the plain terms of O.M. dated 01.05.1987. E
If, the cover under the Pension Scheme, gets triggered with
effect from 30.09.1987, the contribution by an employee
and its receipt by the employer clearly proceeds on a
misconception of the provisions of O.M. dated 01.05.1987.
WP(C) 1490-1507/2006 & connected matters Page 29 of F
33 As a matter of fact, this very argument was repelled by
the Supreme Court, in S.L. Verma’s case, and I think, for
good reason. Consequently, there is no room for entertaining
such an argument. The relevant observations made in
paragraph 7, specific to this aspect, are, once again,
extracted hereinafter. G
“..It may be right they had made an option to continue with
the CPF Scheme at a later stage but if by reason of the
legal fiction created, they became members of the Pension
Scheme, the question of their reverting to the CPF would
not arise..” H
976 SUPREME COURT REPORTS [2022] 7 S.C.R.

A iv) It was therefore directed :-
“20. Having regard to the above discussion, the respondents-
University of Delhi/concerned Colleges will be entitled to
recoup their contribution under the CPF Scheme, if not
already recouped, with simple interest at the rate of 8%
B p.a.”
v) The petitions were thus allowed.
B) N.C. Bakshi batch of cases
i) While deciding this batch of cases, reliance was placed
on the decision in R.N. Virmani batch of cases to conclude
C that the option to remain under CPF was exercised by the
petitioners after the cut-off date and only during extensions
granted by the University, which extensions were without
any authority. It was observed:-
“In the judgment delivered by me in the batch of writ
D petitions, in which the lead petition was numbered as :
WP(C) 1490/2006-1507/2006, titled as: Dr. R.N. Virmani
and Ors. Vs. University of Delhi and Anr., I have held
that the provisions of the O.M. dated 01.05.1987 required
a positive option to be given only if, an employee was
desirous of continuing with the CPF Scheme and that
E too by 30.09.1987. In the event, no positive option was
received from an employee expressing his or her desire
to continue with the CPF Scheme then, the employee
stood automatically covered by the Pension Scheme by
virtue of the deeming legal fiction created under the
F provisions of the O.M. dated 01.05.1987. This
conclusion, I had reached after examining the provisions
of O.M. dated 01.05.1987, in particular, clauses 3.1 and
3.2 and the form appended to it. As noted in the said
judgement, this is also the view taken by the Supreme
Court in the case of Union of India and Anr. Vs. S.L.
G Verma and Ors., (2006) 12 SCC 53. For the sake of
brevity, I am not detailing out in extenso the rationale
provided in the said judgement. The observations made
in the said judgment be read as part of the present
judgement……..
H *** *** ***
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC. 977
[UDAY UMESH LALIT, J.]

4.2 Having regard to the aforesaid stand of the counsels A
for the UGC, University of Delhi and concerned
Colleges, the only conclusion that I can come to is that
notwithstanding the fact that the petitioners in this batch
of petitions had overtly expressed their desire to continue
in the CPF Scheme, they got automatically covered by
B
the Pension Scheme, once, the cut-off date of
30.09.1987, was crossed. Therefore, the objection qua
delay and latches cannot be sustained in case of these
writ petitioners, save and except, in those cases where
the petitioners received, upon retirement, without protest
(either by filing an action in court or otherwise) their C
benefits under the CPF Scheme. As explained in Dr.
R.N. Virmani’s judgement delay and latches will not get
attracted as the cause of action in these cases if not
continuing, is certainly recurring, each time the record
was not corrected. (read paragraphs 17.3 & 17.4 of Dr.
D
R.N. Virmani’s judgment delivered by me today along
with this judgement). The availability of relief to such
petitioners, who collected their CPF benefit without
protest, one would deny, not on the interpretation of the
provisions of O.M. dated 01.05.1987, but on the grounds
of equity. The exercise of jurisdiction under Article 226 E
of the Constitution being a discretionary remedy in such
like cases, I would not be persuaded to exercise my
discretion. Furthermore, once CPF benefits are collected
without protest cause of action will decidedly come to
an end. Therefore, the captioned writ petitions are
F
allowed qua all the petitioners except vis-a-vis the
petitioner in WP(C) No. 5981/2010 and, in respect of
petitioner No.11 in WP(C) No.1216/2011.”
ii) Thus, with the exception of cases where CPF benefits were
collected by the concerned petitioners, all the petitions in this batch of
cases were allowed. G

C) Shashi Kiran batch of cases
i) The relevant facts and submissions were set out as under:-
“(iv) that as per the additional affidavit filed by the University
of Delhi, which is impleaded as respondent no.4 in WP(C) H
978 SUPREME COURT REPORTS [2022] 7 S.C.R.

A 5759/2010, twelve (12) extensions were given by the said
University to the employees between 09.02.1989 to 16th/
17th .11.1998 and 20.11.1998 to 16.12.1998, to change over,
from CPF Scheme to the Pension Scheme. During this
period, a total number of 2469 employees both from
University of Delhi and from 52 of 86 colleges affiliated to
B
the said University had availed of the option of switch over
to the Pension Scheme. Of these 2469 employees, 1368
had retired and were now in receipt of pension from
University of Delhi, out of the funds made available by the
UGC.
C (v) The present petitioners and those who are part of the
other two batches of the petitions, heard by this court, thus,
constituted a small percentage of the total number of
employees, who have been allowed to switch over after
the cut-off date of 30.09.1987, was crossed over. …
D *** *** ***
11.1 On being asked, as to what would be the position of
the GOI with regard to the pension liability already
undertaken by the University of Delhi vis-à-vis 2469
employees, Mr. Bajaj said that the liability in that behalf
E would have to be born and adjusted by the University of
Delhi under the had ‘unapproved expenditure’.
11.2 I may note at this stage that a similar query was put to
Mr. Amitesh Kumar, the learned counsel appearing for UGC
who, took an identical stand on the issue. Mr. Bajaj, thus,
F made it a point to draw my attention to the observations
made in paragraph 8 at page 56 of the judgment of the
Supreme Court in the case of Union of India and Anr. vs.
S.L. Verma and Ors., (2006) 12 SCC 53 in support of its
stand that the GOI, could not be called upon to bear the
financial burden of the decision taken by the University of
G
Delhi, to extend the date of change over. Reliance in this
regard was also placed on the judgement of the Division
Bench of this court in the case of Union of India vs. UGC
Class 1 Officers Association and Ors., (2006) 87 DRJ
783.”
H
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC. 979
[UDAY UMESH LALIT, J.]

ii) The effect of notifications issued by the University giving A
extensions was considered as under:-
“15. This would bring me to the next argument advanced
by the counsel for the petitioners that no notice was given
to the petitioners in the manner prescribed in circular dated
09.02.1989 and notification dated 11.02.1998. This argument, B
in my opinion, is once again mis-conceived for the following
reasons:-
(i) First and foremost, having reached the conclusion
that no extensions could have been given by the
University of Delhi without due approval of the UGC C
or the GOI, the entire argument is, in a sense, a non-
started.
(ii) Second, the petitioners having given their positive
options to continue under the CPF Scheme in terms
of O.M. dated 01.05.1987, as adopted by the
D
University of Delhi, cannot now resile from the said
position.
(ii)(a) assuming without accepting that University of Delhi could
grant extensions, a careful reading of the circular dated
09.02.1989 would demonstrate that even as per the
University the circular was intended to give one more E
opportunity to those employees of the University of Delhi
or colleges affiliated to it, which were, receiving
maintenance grant from the UGC to “come over to the
pension Scheme.”The circular was not directed towards
those employees, who had consciously opted to remain in F
the CPF Scheme. In other words, no come back situation
was contemplated in the said circular. …”
iii) The petitioners having consciously exercised the option to
be under CPF, the prayer that they be given opportunity to
switchover was not accepted and the petitions were
G
dismissed.
D) The case of 2469 employees who were given chance to
switchover after the cut-off was dealt with as under:-
“17. Before I conclude I must only clarify that the argument
of the petitioners that 2469 employees had been allowed to H
980 SUPREME COURT REPORTS [2022] 7 S.C.R.

A switch over even after they had their given their option to
continue under the CPF scheme and, thus, the respondents
had discriminated against this set of petitioners is, an
argument, which cannot be countenanced in law. As is well
settled, by several judgements of the Supreme Court that
there is no equality in illegality (see M.K. Sarkar’s case,
B
paragraph 25 at page 69). If, the University of Delhi, has
wrongly permitted switch over to some of its employees to
the Pension Scheme contrary to the provisions of O.M.
dated 01.05.1987 as adopted by it, it cannot be the ground
to grant relief to the petitioners. Since, the case of those
C 2469 employees is not before me, I am not required to return
a finding on them. As indicated by counsel for UGC and
the Union of India, the expenditure, if any, on account of
the said 2469 employees can only be classified under the
head, ‘unapproved expenditure’ and, therefore, the financial
burden if at all, in that behalf would lie only on the University
D
of Delhi.”
7. These decisions in all three batches of cases were appealed
against by the University before the Division Bench, which dealt with
each of these batches as under:-
E A) R.N. Virmani batch of cases:
“17. This court is of opinion that the submissions of the
University, the appellant, in regard to the Virmani’s order, have
no force. There is no denial and there can be none- that the
nature of the scheme contemplated by the 01.05.1987
F notification was to ensure that only those wishing to continue
in the CPF scheme had to opt to do so. A default in that regard,
meant that the employee not filling his option (to continue in
CPF) was deemed to have “come over” or migrated to the
Pension Scheme. The University and the official respondents
(UGC, Central Government etc) had urged that the petitioners
G in the Virmani group are deemed to have accepted the CPF
benefits, because they allowed deductions from their monthly
salaries during the interregnum and permitting Pension Scheme
benefits would not be fair; in the same breath it was urged that
there was delay. This court is of opinion that the University –
H and the respondents are relying on contradictory pleas. If they
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC. 981
[UDAY UMESH LALIT, J.]

urge that the true interpretation of the 1987 circular meant that A
anyone not furnishing an option to continue in the CPF scheme
is deemed to have opted for the Pension Scheme (as the
Virmani group undoubtedly did) there is no way they can
succeed on the ground of laches or estoppel. If plain
grammatical meaning of the language of the May 1987 OM
B
were to be given, all those who do not opt would automatically
be borne in the Pension Scheme. Such being the position, the
argument that the petitioners in Virmani allowed deduction of
CPF amounts from their salary, cannot be argued against them.
CPF schemes typically require employees to commit greater
amounts than in GPF scheme, on a monthly basis. That these C
staff members allowed higher amounts, which were held under
a scheme (and which earned interest), the benefit of which
had not accrued and was not available to them till the date of
superannuation, cannot be urged against them. Likewise, the
question of laches would not arise, because at the most, pension
D
would not be allowed for the entire period, given that in matters
of pension (see Union of India & Ors. V. Tarsem Singh (2008)
8 SCC 648) there is a continuing cause of action. Therefore,
we find no infirmity with the learned Single Judge’s order, in
Virmani’s case.”
The appeals were thus dismissed. E

B) N.C. Bakshi batch of cases:
“20. This court is of the opinion that no infirmity can be found
with the approach or reasoning of the learned Single Judge, in
allowing the respondents’ petitions. The learned Single Judge F
made a factual analysis, in this category of teaching staff. The
chart, prepared for the purpose, and extracted at Para 3.1 of
the judgment in this batch (N.C. Bakshi v Union of India WP
5310/2010) shows that all the employees opted for the CPF
benefits, after the cut-off date. It was because of this and the
expressed stand of the UGC- and the University that the learned G
Single Judge concluded that notwithstanding the so called
option, exercised in terms of the extensions given, the writ
petitioners could not be denied the benefit of the Pension
Scheme because they were deemed, by the OM of 01.05.1987
to have opted for it, by default. Having regard to these facts, H
982 SUPREME COURT REPORTS [2022] 7 S.C.R.

A the appellants could not have urged that the benefit of the
Pension Scheme should have been denied to these class of
petitioners/teaching staff. Therefore, we are of opinion that
there is no infirmity with the impugned judgment of the learned
Single Judge. The University’s appeals, therefore, deserve to
fail.”
B
The appeals in this batch of cases were thus dismissed.
C) Shashi Kiran batch of cases:-
i) The distinction between cases in this batch as against the other
batches was noted thus:-
C
“21. The last category is the Shashi Kiran batch. Here, the
University staff, who constituted the writ petitioners, had
consciously opted for the CPF benefits. Their grievance was
that of discriminatory exclusion. They had approached the court,
contending that when they sought for options, the respondents
D refused to extend it, saying that the previous extensions had
ended and later, that the UGC and the Central Government
had refused to grant approval.
“23. The discrimination complained of by the appellants in Shashi
Kiran’s batch of cases is that even though the deadline of
E 30.09.1987 was not deemed sacrosanct by the University (and
through omission and, therefore, tacit approval, by UGC and
the Central Government) a large number of employees who
had not opted either way were allowed to switch-over to the
Pension Scheme through options given over 14 years, by 12
F different extensions. Given that the ground realities had
undergone a sea change, the CPF scheme was unfeasible and
had lost viability; on the other hand, the Pension Scheme was
more beneficial. These appellants argue that in such a situation,
when 2469 staff members opted for pension on various dates
during these extensions, when they wished to do so, the
G respondents unfairly refused the benefit.
24. The learned Single Judge’s view has some logic in it because
the University refused the Pension Scheme benefits in case of
those who had chosen it: in Virmani’s case, by default (i.e. no
option, which meant deemed option) and in the other cases,
H because of the option for CPF, given after the date prescribed.
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC. 983
[UDAY UMESH LALIT, J.]

While the logic for directing relief in the first category (Virmani) A
is sound, the second category was given relief by ignoring that
they consciously wished to switch-over to the CPF scheme,
but after the cutoff date. Thus, the learned Single Judge ignored
the conscious choice made only on the ground that the choice
or option for CPF was after the cut-off date. Now, this has led
B
to a peculiar situation where those who opted for CPF benefits
have been divided into two categories: one, who opted before
the cut-off date and two, those who opted after the cut-off
date. The latter have been given relief. That is also the basis
for refusing relief to the former, who are appellants in this
batch. C
25. As noticed earlier, 2469 staff members are enjoying the
benefit of the Pension Scheme, on account of the choice or
option made by them…….”
ii) It was thus observed:
D
“26. If these facts are taken together with the Central
Government’s conceded stand in permitting staff members and
employees in other institutions, including educational institutions
such as IIT Kanpur, the Department of Atomic Energy and
Council for Scientific and Industrial Research to opt in extended
dates for switch-over qua its employees, the rejection of UGC’s E
request that the conversion date be extended till 31.12.2003,
reveals the arbitrariness and non-application of mind by the
Central Government.
27. That the Central Government permitted change over as
late as till 31.12.2003, i.e before the sixth pay commission F
recommendations (introducing CPF benefits to all those
employed later, universally with effect from 01.01.2004). This
aspect assumes critical importance, because the Central
Government (and UGC) admit that all those who opted after
the cutoff date (and many of them having opted for CPF earlier) G
have been granted benefits under the Pension Scheme. The
ground realities with respect to the nature of benefits that accrue
to CPF optees in comparison with GPF/Pension optees paints
a stark picture. One should keep in mind that while opting for
such schemes, employees cannot gaze into the crystal ball, as
H
984 SUPREME COURT REPORTS [2022] 7 S.C.R.

A it were, and speculate whether the existing state of affairs
would continue. At the time when these options were sought
and given, those opting for CPF were reasonably certain that
having regard to the nature of contributions and the rate of
interest, the end package would compare favourably with
Pension optees, with respect to returns earned at the stage of
B
superannuation. In other words, when the options were given,
these appellants were in employment; neither they, nor for that
matter the respondents could have visualized a drastic fall in
the interest rates, which severely undermined the CPF option
and shrunk the ultimate lump sum CPF benefit available to
C these appellants. While examining whether a statute once valid
and upheld as such on the ground of Article 14 ceases to be so
due to later developments and with passage of time, the
Supreme Court has declared in a number of judgments that
the earlier declaration of validity or basis of classification cannot
D be the basis to deny the arbitrariness of the law, if it is proved
to be so later (Refer to State of Madhya Pradesh Vs. Bhopal
Sugar Industries (1964) 6 S.C.R. 846; Narottam Kishore Dev
Varma and Ors. Vs. Union of India and Anr. (1964) 7 S.C.R.
55 ; H.H. Shri Swamiji of Shri Admar Mutt etc. vs. The
Commissioner, Hindu Religious & Charitable Endowments
E Department and Ors. (1980) 1 S.C.R. 368; Motor General
Traders and Anr. Etc. etc. vs. State of Andhra Pradesh and
Ors. etc. 1984 (1) S.C.R. 594.) In H.H. Shri Swamiji of Shri
Admar Mutt etc (supra) it was held that:
“there is a firm foundation laid in support of the proposition
F that what was once a non-discriminatory piece of legislation
may in course of time become discriminatory and be exposed
to a successful challenge on the ground that it violated
Article 14 of the Constitution.”
28. In this case, clearly when the appellants opted for CPF
G benefits, they did so without premonition of future developments.
The net result was that as between two individuals in the same
grade and post, carrying the same pay scale, one who opted
for the Pension Scheme was entitled to a substantial amount
and future adjustments in pension whenever Dearness
Allowance were to be enhanced. However, for the appellants,
H
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC. 985
[UDAY UMESH LALIT, J.]

there was no such advantage; they saw a shrinking package A
on account of later developments – notably the drop in interest
rates. Now, interest at the rate or anyway, somewhere near
the rates, which prevailed when the scheme was introduced,
was one of the significant basis for the CPF scheme. With a
drastic change in the rates, those opting for CPF were at a
B
grave disadvantage. To compound their problems, the
University’s interpretation of a fairly clear Office
Memorandum (dated 01.05.1987) injected much confusion. The
third factor is that even amongst University staffers, 12
extensions were given and a large number of options for the
Pension Scheme were furnished – both in respect of those C
who opted for CPF earlier and those who did not. Taking the
totality of circumstances, the University’s insistence to pin the
appellants to the options they originally exercised is
discriminatory.
29. The other reason why this court is inclined to allow this D
appeal is that neither the Central Government nor the UGC
have furnished a single reason for why option to switch-over
to the Pension Scheme was permitted up-to 31.12.2003 to
several other autonomous institutions and denied to the
appellants. This singular omission to say what compelled the
E
Central Government to deny the petitioners the benefit of
switch-over, while permitting those in other institutions, in the
opinion of the court, clearly amounts to discrimination. The
mere fact that the petitioners are working in the University
whereas the other employees work in other institutions is not
sufficient, given that the consistent stand is that options once F
given cannot be altered. Therefore, it is held that denying the
right to opt to the Pension Scheme in the case of the Shashi
Kiran batch is unsustainable; it has resulted in arbitrariness.”
The appeals in this batch of cases were thus allowed.
G
8. The University accepted the decision in R.N. Virmani batch of
cases and as such no appeal has been preferred. It, however, is in appeal
in the other two batch of cases. At this stage, some of the documents
which were not part of the record before the High Court but were placed
before us, must be adverted to:-
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986 SUPREME COURT REPORTS [2022] 7 S.C.R.

A a) On 08.08.2001, a communication was addressed by the UGC
to the Joint Secretary, MHRD. The relevant portion of the letter
was:-
“…Many autonomous bodies including the universities have
adopted the basic policy of this circular but they have not
B restricted to the cut off date and allowed their own cut off
dates to their employees for switchover from CP fund to GP
fund. Some of the Institutions have allowed this changeover
till 1998. However, some of the institutions under UGC who
have shown better discipline and also some of the employees
of UGC itself are representing now to allow their employees a
C chance to switchover from CP fund to GP fund. In UGC, this
number is 5 or 6 only.
Respective Ministries presumably have also not issued any
circular allowing this benefit to the employees of autonomous
bodies under their control. This has led to a situation where
D different disparity among the employees in different
autonomous bodies as far as benefits under CP fund to GP
fund is concerned. For example, IIT, Kanpur allowed
conversion until 30.7.98 and kept this open for charge over for
another fifteen years after continuous service, in case they do
E not switch over by that date. Copy of IIT, Kanpur letter dated
Atomic Energy, Govt. of India vide their letter 2/1/99/SCS/665
dated 12.10.2000 have also extended another chance to opt
for said switchover in case of Technical employees of DAE.
Similarly, CISR have allowed one more option to all its
employees to switchover. Their letter No. 17(197)/90-EII dated
F 25.1.99 is enclosed for reference.
On demand of employees of UGC and also the employees of
the Universities, the Commission considers it necessary to
obtain consent of your Ministry to allow one more cut off date
to stop this disparity in UGC and other autonomous institutions
G within UGC umbrella specially in all those institutions where
the pension scheme already exists and only a few employees
have been left out for switchover from CP fund to GP fund.
The cost of extending the scheme in those left out cases will
also be very little so as to be called an additional burden on the
H exchequer. Extension of the conversion scheme in institutions
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC. 987
[UDAY UMESH LALIT, J.]

where pension scheme is already existing is also necessary as A
Government have extended the revised pay scales on the
condition that these institutions will maintain parity in all terms
and conditions that these institutions will maintain parity in terms
and conditions of service of its employees with the
corresponding category of employees in Govt. of India.
B
I would therefore request you to please consider this suggestion
and extend the schemes of conversion from CP fund to GP
fund scheme to all employees of autonomous bodies (or to
employees of UGC/Central & Deemed Universities) who
already have pension scheme since inception, and notify some
clear cut off future date, so that those institutions do not fix C
their own cut off date/dates and create disparities and
confusion.”
b) The stand of the MHRD is clear from one of the
communications, namely letter dated 24.10.2002 addressed by the
MHRD to the UGC which stated:- D

“2. Since the University Grants Commission is the funding
agency and it itself had extended the Government policy on
conversion from CPF to GPF to the Central Universities and
Deemed Universities receiving 100% maintenance grant from
the UGC, no specific Government instructions are warranted E
to decide the cases of those employees of the University of
Delhi who had been permitted irregular conversion from CPF
to GPF/Pension Scheme after the prescribed cut-off date.
3. You are, therefore, advised to decide the issue at your end
without referring it to this Ministry.” F
c) Soon after the decision of the Division Bench of the High Court,
a communication was addressed by the University on 13.10.2016
to MHRD that about 306 employees would be eligible to draw
pension in terms of said decision.
G
d) A letter dated 23.1.2017 was written by the Under Secretary
to Government of India, Ministry of Education, to the Registrar of
the University. Paragraph 2 of the letter stated as under:-
“2. The directions/observations in the matter are as under for
compliance: -
H
988 SUPREME COURT REPORTS [2022] 7 S.C.R.

A (i) To allow GPF/Pension of Government in respect of those
employees who were in service as on 01/01/1986, unless
they have specifically and in writing chosen the option
to stay with CPF. However, in respect of the employees
who have already retired, the question of surrender of
the University’s portion of the CPF as already taken
B
by them, will have to be dealt with by the University of
Delhi on consultation with the UGC/MHRD. Delhi
University/Concerned Colleges will ensure to recoup
their contributions under the CPF Scheme with simple
interest of 8% per annum. Thus while seeking option
C from the employees this point will have to be
appropriately taken care by the MHRD/UGC/DU and
Concerned Colleges.
(ii) In all other cases, University of Delhi is advised to file
an appeal against the order of the Hon’ble Delhi High
D Court, in consultation with the UGC/MHRD.
(iii) In case any other employee who was not in service as
on 01.01.1986 and joined thereafter, the question of
application of order of Department of pension dated
01.05.1987 shall not arise and as such if any order of
E any Court of Law allows pension in their cases, the
University of Delhi may have to appropriately file appeal
in the appropriate appellate Court in consultation with
UGC and MHRD.
3. The University may take appropriate action in light of the
F above and also to defend the interest of Govt. of India in all
such Court cases arising in the matter.”
e) On 29.03.2019 a letter was written by MHRD to the Secretary,
UGC. The relevant portion of the letter was:-
“2. The matter of non-settlement of pension issue of such
G employees of University of Delhi and its Colleges who retired
after the order was passed by the Single Bench of Delhi High
Court on 30.4.2014 on the grounds that UGC counsel had
mentioned in the court that the expenditure on pension was
unapproved whereas those who retired prior to 30.4.2014 were
allowed pension by the University.
H
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC. 989
[UDAY UMESH LALIT, J.]

3. The matter has since been examined in consultation with D/ A
o Expenditure and it has been decided that if in this case pension
was allowed to a group of employees by DU, out of which
some have already been allowed pension on having retired after
recovering their CPF accumulation approximate to the
employer’s contribution, then the employees in this case may
B
be allowed pension, if they belong to the same group which
was allowed switch over from CPF to GPF by DU and where
a few employees have already been availing themselves of
pension and if employer’s contribution to CPF has been
recovered in their case, provided they are not related in any
way whatsoever to the case decided by the Delhi High Court C
on 24.8.2016.”
f) Soon thereafter a communication was addressed by the UGC
to the University, the subject being: -
“Release of pension benefits in respect of employees – who
have opted pension scheme from 1989 to 1998 and have retired D
after the judgment of High Court of Delhi – Regarding.”
The relevant portion of the letter was :-
“I am directed to inform you that the MHRD vide its letter no.
4-41/2014-Desk (U) dated 29th March, 2019 (copy enclosed) E
has informed that the matter has since been examined in
consultation with D/o Expenditure and it has been decided that
if in this case pension was allowed to a group of employees by
DU, out of which some have already been allowed pension of
having retired after recovering their CPF accumulation
approximate to the employer’s contribution, then the employees F
in this case may be allowed pension, if they belong to the same
group which was allowed switch over from CPF to GPF by
DU and where a few employees have already been availing
themselves of pension and if employer’s contribution to CPF
has been recovered in their case, provided they are not related G
in any way whatsoever to the case decided by the Delhi High
Court on 24.8.2016.”
g) On 02.03.2019, a communication was addressed by the Under
Secretary to Government of India, Ministry of Finance, Department
of Financial Services to the Chairpersons of Life Insurance
H
990 SUPREME COURT REPORTS [2022] 7 S.C.R.

A Corporation of India and other Insurance Corporations in public
sector. The subject of the letter was:-
“Final option for pension to leftover employees of Public Sector
Insurance Companies (PSICs) namely Life Insurance
Corporation of India, General Insurance Corporation of India,
B Oriental Insurance Company Limited, United India Insurance
Company Limited, National Insurance Company Limited and
New India Assurance Company Limited: Reg.”
The communication stated:-

C “The issue of grant of final option for pension to leftover
employees of Public Sector Insurance Companies (PSICs)
was under examination with the Central Government. It
has now been decided to allow a final option to those who
joined service on or before 28.06.1995 to opt for pension as
a retirement benefit.
D
2. PSICs are requested to submit to this Department a
detailed scheme for approval and notification incorporating,
inter alia, the following parameters:
(i) In the case of serving employees who opt for pension,
E employer’s contribution along with the interest to be
transferred to the pension fund. In addition, they
would also contribute a certain multiple of pay as
was done in the case of public sector banks;
(ii) For retired employees/families of deceased
F employees a certain multiple of employer’s
contribution to Provident Fund and interest thereon
received by the employee on retirement to be
refunded, as was done in the case of public sector
banks.

G (iii) Pension/Family Pension to those who now opt to join
the pension scheme, will be payable with effect from
the date notification of the scheme. However, the
employees retiring after that date will be eligible for
pension with reference to their respective date of
retirement.”
H
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC. 991
[UDAY UMESH LALIT, J.]

9. After hearing learned counsel for the parties who inter alia A
invited attention of this Court to the documents adverted hereinabove,
this Court passed the order dated 02.03.2020, which stated:-
“Though their submissions are concluded, certain doubts have
arisen after the learned counsel invited our attention to various
documents on record. B
Some of those documents are (i) letter dated 8.8.2001 from
University Grants Commission (for short “UGC”) to the Joint
Secretary, Government of India, Ministry of Human Resource
Development (for short “MHRD”,) placed on record at pages
46-47 of the Convenience Volume, (ii) the response dated C
24.10.2002 appended at page 48 of the Convenience Volume, from
the MHRD to the aforesaid letter dated 8.8.2001; (iii) the letter
dated 13.10.2016 written by Delhi University to the Secretary,
Department of Higher Education, MHRD appended at page 58
of the Convenience Volume) and (iv) the letter dated 2.3.2019
from the Government of India (Ministry of Finance), at page 63 D
of the Convenience Volume, in so far as certain institutions like
LIC and other Insurance Companies are concerned.
One of the basic issues that arises in the matter is whether in
terms of Para 3.1 of O.M. dated 1.5.1987 was it competent for
the concerned institutions/authorities to keep on extending the period E
within which options could be exercised by the concerned
employees.
It is in this light that the Division Bench of the High Court in
paragraphs 26 and 27 referred to certain facts including the stand
of the Central Government constituted in permitting several F
members and employees in other institutions including educational
institutions such as IIT, Kanpur to give option by extending dates
for switch over till 31.12.2003.
All these communications do not spell out any consistent stand on
the Central Government. Though the Central Government and G
the UGC are parties to the present list, no stand has been taken
on record by filing any appropriate affidavit.
In the circumstances, we call upon Central Government (Ministry
of HRD) as well as the UGC to file affidavits within seven days
from today and place their stand on record giving complete details. H
992 SUPREME COURT REPORTS [2022] 7 S.C.R.

A Delhi University is also called upon to place on record following
information by way of an affidavit:
(a) How many employees who were employed before 01.01.1986,
had opted to be covered under CPF Scheme by 30.09.1987.
(b) How many employees exercised the option to be part of CPF
B Scheme after 30.09.1987 but within first two extensions allowed
by Delhi University.
(c) How many employees who had opted to be part of CPF,
exercised the reverse option granted to them and opted to be
under GPF.
C
(d) How many writ petitioners wanted similar benefit and
extension of some facilities as was granted to the employees
referred to in Para (c) above.
(e) How many employees are presently in service who answer
D description that they are employees from before 1.1.1986 and are
still part of CPF Scheme.
Copies of the communications referred to in the earlier part of the
order shall also be supplied alongwith a copy of this order to the
Central Government and the UGC.”
E 9.1 In response to the questions posed in the Order dated
02.03.2020, following information was supplied through the affidavit filed
on behalf of the University.
“3.That in pursuance of the aforementioned directions, the
petitioner is providing the following itemized response.
F
(a) How many employees who were employed before
01.01.1986, had opted to be covered under CPF Scheme
by 30.09.1987.
RESPONSE:
G Approximately 2611, who were employed before 01.01.1986,
had opted for CPF Scheme by 30.09.1987
(b) How many employees exercised the option to be part of
CPF Scheme after 30.09.1987 but within first two
extensions allowed by Delhi University.
H
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC. 993
[UDAY UMESH LALIT, J.]

RESPONSE: A
That approximately 626 employees exercised the option to
be part of CPF Scheme after 30.09.1987 but within the
initial two extensions allowed by the Delhi University.
(c) How many employees who had opted to be part of CPF,
exercised the reverse option granted to them and opted B
to be under GPF.
RESPONSE:
That approximately 2469 employees who had opted to
remain in CPF exercised the reverse option granted to them C
and opted to come over to GPF.
(d) How many writ petitioners wanted similar benefit and
extension of same facilities as was granted to the
employees referred to in Para (c) above.
RESPONSE: D
Under category-1 i.e. N.C. Bakshi batch, 172 employees
wanted similar benefit of extension as was granted to the
employees referred to in Para-c above whereas the number
of such employees falling under category-2 i.e. Shashi
Kiran batch is 75. E
(e) How many employees are presently in service who
answer the description that they are employees from
before 1.1.1986 and are still part of CPF Scheme.
RESPONSE:
F
51 respondents belonging to category-1 i.e. N.C. Bakshi
Batch and 86 respondents under category-2 i.e. Shashi Kiran
batch were appointed before 01.01.1986 are presently in
service and they are still part of CPF Scheme.”
9.2 In the affidavit filed on behalf of Union of India, Ministry of G
Education, answer to question no.4 was given as under:-
“The Department of Pension and Pensioners’ welfare O.M. dated
01.05.1987 provides that all CPF beneficiaries, who were in service
on 1.1.1986 and who are still in service on the date of issue of
these orders will be deemed to have come over to the Pension
H
994 SUPREME COURT REPORTS [2022] 7 S.C.R.

A Scheme. 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. Further,
D/o Financial Services vide O.M. dated 02.03.2019 has allowed
the employees of Public Sector Insurance Companies for a final
option to those who joined service on or before 28.06.1995, to opt
B
for pension as a retirement benefit. This O.M. is not applicable to
Central Government as well as autonomous bodies employees.”
It was further stated:-
“4. At the very outset, it is informed that in case this Hon’ble
C Court decides the appeal against the University of Delhi and the
Union of India, the financial implications of the same would have
a snowball effect, as the same would become applicable to all the
Central Universities throughout India, which would open a flood-
gate of litigation.”

D 10. The matter was thereafter extensively argued on behalf of
the University. It was submitted:-
a) The difference between CPF and GPF was always in
existence and as held by the Constitution Bench of this Court
in Krishena Kumar vs. Union of India and others5, the
rules governing the Provident Fund and its contribution would
E
be entirely different from the rules governing the Pension
Scheme.
b) Under the notification dated 01.05.1987, the choice was
completely left to the employees and it was purely optional.
An optional scheme involving financial decisions could not
F be converted into a compulsory scheme.
c) Comparison with employees of IITs, Department of Atomic
Energy and Insurance Companies was impermissible as the
employees of the University and these organizations did
not form a homogeneous class. Their terms and conditions
G of service, financing pattern and financing departments were
completely different.
11. Number of learned senior counsel and other learned counsel
appeared on behalf the respondents-employees and submitted: -
5
H (1990) 4 SCC 207
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC. 995
[UDAY UMESH LALIT, J.]

a) Though, notification dated 01.05.1987 was to the knowledge A
of everyone, the subsequent extensions and chances to
switchover granted by the University were not brought to
the knowledge of all the employees and the respondents
were thus prejudiced.
b) If the mandate under the notification dated 01.05.1987 was B
to be followed scrupulously, the University could not have
granted subsequent option of switchover. But 2469
employees were allowed to ‘come over’to GPF after the
cut-off date. Going by various communications placed
before the Court, such employees were allowed full benefits
under GPF. The case of the present respondents-employees C
was not, in any way, different from such 2469 employees.
c) The University being a Central University, its employees
would rank on similar footing as that of the organisations
like IITs and AIIMS. If extensions were granted to
employees of the IITs, the employees of the University were D
also entitled to similar benefit.
d) The Division Bench was, therefore, justified in setting aside
the view taken by the learned Single Judge of the High
Court in Shashi Kiran batch of cases but affirming the
view in other two batches. E

12. The common thread which ran through the decisions of the
learned Single Judge pertaining to three batches of cases, was that the
text of the notification dated 01.05.1987 was clear that if no option was
exercised by the concerned employees before the cut-off date, they
would be deemed to have ‘come over’ to GPF. It was only a positive F
option exercised by the employees to continue to be under CPF which
could have departed from such deeming provision. Once exercised, the
option was final and as such, there could be no switchover from those
who had consciously opted to be under CPF. Further, relying on the
decision in S.L. Verma4, it was observed that any exercise of option G
after the deadline or the cut-off would be inconsequential. It was on this
premise that the cases in R.N. Virmani batch of cases and N.K. Bakshi
batch of cases were allowed by the learned Single Judge.
As regards Shashi Kiran batch of cases, the learned Single Judge
observed, that once the conscious decision was taken and option was
H
996 SUPREME COURT REPORTS [2022] 7 S.C.R.

A exercised to continue to be under CPF, there was “no room for any
come back situation.” The cases in the third batch were therefore,
rejected.
13. However, the learned Single Judge observed that 2469
employees who were given facility of such switchover after the cut-off
B date, though they had also consciously opted to be under CPF, were not
before the Court, and as such, their cases had to be left untouched. It is
a matter of record and which aspect is clear from the communications
referred to in paragraph 8 hereinabove that most of those 2469 employees,
at the time of retirement, were given all the benefits that were available
to those who had opted to be under GPF. Thus, those 2649 employees
C were certainly allowed to avail the benefit of switchover which was not
granted in favour of the employees in the third batch of cases.
14. Affirming the view taken by the learned Single Judge in the
first two batches of cases, the Division Bench set aside the view of the
learned Single Judge only in the third batch of cases i.e. in Shashi Kiran
D batch of cases. As the observations made by the Division Bench indicate,
the matter was placed on the ground of discrimination and principles of
equality.
15. According to the notification dated 01.05.1987 two situations
were contemplated. First, the deeming provision in terms of which the
E concerned employee was taken to have ‘come over’to GPF. The second
situation being where a conscious option was exercised before the cut-
off date to continue to be under CPF. R.N. Virmani batch of cases was
therefore rightly allowed by the learned Single Judge and the Division
Bench of the High Court, as no conscious option was exercised by the
F cut-off date. Consequently, the concerned employees must be deemed
to have ‘come over’ to GPF. Logically, it would be immaterial whether
the concerned employee continued to make contribution assuming himself
to be covered under CPF, even though contributions were made by the
concerned authorities. The benefit was therefore rightly granted in favour
of the employees and the entire contribution was directed to be refunded.
G The University has chosen not to appeal against that decision and thus
the matter has attained finality.
Theoretically, extension of the same principle would be that if no
option was exercised before the cut-off date, but an option was exercised
after the cut-off date was extended; and if no switchover could be allowed
H after the cut-off date, the decisions rendered by the learned Single Judge
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC. 997
[UDAY UMESH LALIT, J.]

and the Division Bench in the N.C. Bakshi batch of cases were also A
quite correct. Consequently, irrespective of the fact that the concerned
employees had exercised the option to continue to be under CPF, such
exercise of option would be non est in the eyes of law. That in fact is the
ratio of the decision in S.L. Verma’s4 case. Thus, both these batches of
cases were rightly decided by the learned Single Judge and the Division
B
Bench. We, therefore, dismiss the appeal in N.C. Bakshi batch of cases.
16. We now turn to Shashi Kiran batch of cases.
17. As indicated by the University in its affidavit filed after the
Order dated 02.03.2020 was passed by this Court, 2611 employees had
opted to be under CPF Scheme by the cut-off date, i.e. by 30.09.1987. C
Additionally, 626 employees exercised the option to be under CPF after
the original cut-off, but within initial two extensions granted by the
University. Thus, as against the entire body of employees of the
University, 3237 (2611+626) employees had exercised the option to be
under CPF. Out of these 3237 employees, by virtue of further extensions
granted by the University, about 2469 employees exercised the reverse D
option and opted to “come over” to GPF, leaving only 768 (3237-2469)
employees to be under CPF. The answers to queries ‘d’ and ‘e’ given by
the University in its affidavit indicate that the number of employees in
CPF Scheme was 86 while the petitioners in Shashi Kiran batch were
75. We are, thus, concerned with 75 original petitioners in Shashi Kiran E
batch of cases.
18. In Krishena Kumar5, the distinction between the Provident
Fund Scheme and the Pension Scheme was considered by the
Constitution Bench of this Court. In that case, the employees who had
joined the service on or after 01.04.1957 were to get covered automatically F
by the Pension Scheme and insofar as employees who were already in
service on 01.04.1957, they were given an option either to retain the
Provident Fund benefits or to switchover to the pensionary benefits.
About 12 extensions were thereafter granted so that the options could
be exercised by the employees within the extended time. Those who
had chosen not to exercise such option, were before this Court. The G
basic nature of the Scheme was discussed in paragraph 7 of the decision
as under:-
“7. We may now examine these options. The Railway Board’s
letter No. F(E) 50-RTI/6 dated November 16, 1957 introduced
the pension scheme for railway servants. It said that the President H
998 SUPREME COURT REPORTS [2022] 7 S.C.R.

A had been pleased to decide that the pension rules, as liberalised
vide Railway Board’s Memo No. E-48 OPC-208 dated July 8,
1950 as amended or clarified from time to time should apply “(a)
to all Railway servants who entered service on or after issue of
that letter and (b) to all non-pensionable railway servants who
were in service on April 1, 1957 or have joined railway service
B
between that date and the date of issue of the order”. The Railway
servants referred to in para (b) were required to exercise an
unconditional and unambiguous option on the prescribed form on
or before March 31, 1958 electing for the pensionary benefits or
retaining their existing retirement benefits under the State Railway
C Provident Fund Rules. It further said that any such employee from
whom an option form prescribed for the employee’s option was
not received within the above time limit or whose option was
incomplete or conditional or ambiguous shall be deemed to have
opted for the pensionary benefits and if any such employee had
died by that date or on or after April 1, 1957 without exercising
D
option for the pensionary scheme, his dues would be paid on the
provident fund system. The period of validity of this option was
first extended up to June 30, 1958, December 31, 1958, March
31, 1959 and lastly up to September 30, 1959. There could,
therefore, be no doubt that those who did not opt for the pension
E scheme had ample opportunity to choose between the two.”
Reliance was placed by the petitioners before this Court on the
decision in D.S. Nakara vs. Union of India6. Paragraphs 16, 29 and 30
of the decision in Krishena Kumar5 dealt with the issue as under:-
“16. As the basis or justification for striking or reading down
F paragraph 3.1 on Nakara6 ratio, it is urged that all the Railway
employees numbering about 22 lakhs comprising 16,22,000 in
service and about 6 lakhs pensioners constitute one family and
must be treated as one class as the government’s obligation to
look after the retired Railway employees both under the pension
G scheme and the provident fund scheme being the same, they could
not be treated differently. Any differential treatment will be
discriminatory and violative of Article 14 of the Constitution of
India. In Nakara cas6 the date arbitrarily chosen was struck down
and as a result the revised formula for computing pension was
6
H (1983) 1 SCC 305
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC. 999
[UDAY UMESH LALIT, J.]

made applicable to all the retired pensioners. The same principle, A
it is urged, has to be extended to the Provident Fund retirees also
otherwise there would be discrimination. It is stated that though
at the time of choosing between Provident Fund and Pension
Scheme both the alternatives appeared to be more or less equal
and the retired provident funders took their lump sum yet
B
subsequently stage by stage the pensioners’ benefits were
increased in such ways and to such extent that it became more
and more discriminatory against the provident funders old and
new. It was because of this discrimination that successive options
were given by the Railway Board for the provident funders to
become pensioners. Hence the submission that this limitation must C
go, and all the provident funders must be deemed to have become
pensioners subject to the condition that the government contribution
received by them along with interest thereon is refunded or
adjusted. Obviously this gives no importance to the condition in
the notifications that option once exercised shall be final and binding
D
and to the fact that in each option a cut-off date was there related
to the purpose of giving that option.
*** *** ***
6
29. The court in Nakara was not satisfied with the explanation
that the legislation had defined the class with clarity and precision
and it would not be the function of this Court to enlarge the class. E
The court held in paragraph 65 of the report : (SCC pp. 344-45,
para 65)
“With the expanding horizons of socio-economic justice, the
Socialist Republic and Welfare State which we endeavour to
set up and largely influenced by the fact that the old men who F
retired when emoluments were comparatively low and are
exposed to vagaries of continuously rising prices, the falling
value of the rupee consequent upon inflationary inputs, we are
satisfied that by introducing an arbitrary eligibility criterion :
‘being in service and retiring subsequent to the specified date’
G
for being eligible for the liberalised pension scheme and thereby
dividing a homogeneous class, the classification being not based
on any discernible rational principle and having been found
wholly unrelated to the objects sought to be achieved by grant
of liberalised pension and the eligibility criteria devised being
thoroughly arbitrary, we are of the view that the eligibility for H
1000 SUPREME COURT REPORTS [2022] 7 S.C.R.

A liberalised pension scheme of ‘being in service on the specified
date and retiring subsequent to that date’ in impugned
memoranda, Exs. P-1 and P-2, violates Article 14 and is
unconstitutional and is struck down. Both the memoranda shall
be enforced and implemented as read down as under : In other
words, Ex. P-1, the words : ‘that in respect of the government
B
servants who were in service on March 31, 1979 and retiring
from service on or after that date’; and in Ex. P-2, the words
: ‘the new rates of pension are effective from April 1, 1979
and will be applicable to all service officers who became/
become non-effective on or after that date’ are unconstitutional
C and are struck down with this specification that the date
mentioned therein will be relevant as being one from which
the liberalised pension scheme becomes operative to all
pensioners governed by 1972 Rules irrespective of the date of
retirement. Omitting the unconstitutional part it is declared that
all pensioners governed by the 1972 Rules and Army Pension
D Regulations shall be entitled to pension as computed under the
liberalised pension scheme from the specified date, irrespective
of the date of retirement. Arrears of pension prior to the
specified date as per fresh computation is not admissible.”
30. Thus the court treated the pension retirees only as a
E homogeneous class. The PF retirees were not in mind. The court
also clearly observed that while so reading down it was not dealing
with any fund and there was no question of the same cake being
divided amongst larger number of the pensioners than would have
been under the notification with respect to the specified date. All
the pensioners governed by the 1972 Rules were treated as a
F
class because payment of pension was a continuing obligation on
the part of the State till the death of each of the pensioners and,
unlike the case of Contributory Provident Fund, there was no
question of a fund in liberalising pension.”
The distinction between two Schemes was dealt with in Paragraph
G 32 of the decision as under:-
“32. In Nakara6 it was never held that both the pension retirees
and the PF retirees formed a homogeneous class and that any
further classification among them would be violative of Article
14. On the other hand the court clearly observed that it was not
H dealing with the problem of a “fund”. The Railway Contributory
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC. 1001
[UDAY UMESH LALIT, J.]

Provident Fund is by definition a fund. Besides, the government’s A
obligation towards an employee under CPF Scheme to give the
matching contribution begins as soon as his account is opened
and ends with his retirement when his rights qua the government
in respect of the Provident Fund is finally crystallized and thereafter
no statutory obligation continues. Whether there still remained a
B
moral obligation is a different matter. On the other hand under the
Pension Scheme the government’s obligation does not begin until
the employee retires when only it begins and it continues till the
death of the employee. Thus, on the retirement of an employee
government’s legal obligation under the Provident Fund account
ends while under the Pension Scheme it begins. The rules governing C
the Provident Fund and its contribution are entirely different from
the rules governing pension. It would not, therefore, be reasonable
to argue that what is applicable to the pension retirees must also
equally be applicable to PF retirees. This being the legal position
the rights of each individual PF retiree finally crystallized on his
D
retirement whereafter no continuing obligation remained while,
on the other hand, as regard Pension retirees, the obligation
continued till their death. The continuing obligation of the State in
respect of pension retirees is adversely affected by fall in rupee
value and rising prices which, considering the corpus already
received by the PF retirees they would not be so adversely affected E
ipso facto. It cannot, therefore, be said that it was the ratio decidendi
in Nakara6 that the State’s obligation towards its PF retirees must
be the same as that towards the pension retirees. An imaginary
definition of obligation to include all the government retirees in a
class was not decided and could not form the basis for any
F
classification for the purpose of this case. Nakara 6 cannot,
therefore, be an authority for this case.”
Having observed that the Pension Scheme and the Provident Fund
Scheme were structurally different, it was then concluded that the retirees
in both categories did not belong to the same class and that there was no
discrimination. The challenge was, therefore, rejected. G
19. At this stage we must also consider that in Rajasthan Rajya
Vidyut Vitran Nigam Limited vs. Dwarka Prasad Koolwal and
others7, a Bench of two Judges of this Court found that an employee
7
(2015) 12 SCC 51 H
1002 SUPREME COURT REPORTS [2022] 7 S.C.R.

A had no inherent right to demand extension for exercising the switchover
option. It was observed:-
“58. When the Pension Regulations and the GPF Scheme are
read together, the necessary conclusion is that an employee must
give his option for either continuing to be a member of the CPF
B Scheme or to switch over to the Pension and GPF Scheme. This
option had to be exercised within a period of 90 days from the
cut-off date, that is, 28-11-1988. But RSEB, in its wisdom, chose
to extend the time for exercising the switch-over option over a
period of 8 years by giving several opportunities to the employees
through its notices. The right of an employee to switch over was,
C therefore, limited in time by the Pension and GPF Scheme.
However, administrative orders issued by RSEB from time to time
extended the period for exercising the option. No employee had
any inherent right to either demand an extension of the period for
exercising the switch-over option or claim a right to exercise the
D switch-over option at any time prior to his retirement, and no such
right has been shown to us.”
20. Krishena Kumar5 was a case where the retirees from two
categories namely Pension Fund and Provident Fund, were taken to be
distinct and different and as such the plea on the ground of discrimination
E was rejected. As the Judgment of the Division Bench discloses, the
matter was considered by it from the standpoint of discrimination between
the same category of persons, that is to say, those who had opted to be
under CPF. The different groups in the same category were:-
a) Those who had not exercised any option but continued to
F make payment of contribution towards CPF (R.K. Virmani
batch of cases).
b) Those who exercised the option to be under CPF but the
option was exercised after the cut-off. Since the option was
exercised after the cut-off, they were deemed to have ‘come
over’ to GPF and were granted benefit (N.C. Bakshi batch
G
of cases).
c) Those who consciously exercised the option to be under
CPF; but taking advantage of further options granted through
11 extensions to switchover, had been allowed to ‘come
over’ to GPF (2469 employees).
H
UNIVERSITY OF DELHI v. SMT. SHASHI KIRAN & ORS. ETC. 1003
[UDAY UMESH LALIT, J.]

21. It was against these three sub categories coming from the A
same category of employees that the argument of discrimination was
considered by the Division Bench. Such was not the case in Krishena
Kumar5or Rajasthan Rajya Vidyut Vitran8.
The matter was further considered by the Division Bench in the
context of the employees of educational institutions such as IITs, who B
are directly under the Central Government, just as the employees of the
University, which is a Central University. If the option was allowed to be
exercised by granting extension to the employees of the other educational
institutions, the Division Bench did not find any reason why similar choice/
option could not be given to the employees in Shashi Kiran batch of
cases. C

Additionally, the feature that has been presented through the
documents which have subsequently come on record is that even with
respect to the employees of Insurance Corporations similar options and
extensions were granted.
D
22. The differential treatment afforded to those 2469 employees
as against the employees in Shashi Kiran batch of cases, was not
founded on any rationale. No justifiable reason was coming forth. If
those 2469 employees could be afforded chance to exercise an option of
switchover to GPF, even though they had consciously opted to be under
CPF, on principle of parity or equality, the case was certainly made out. E

23. We may now consider the matter from the perspective of
financial impact if the decision of the Division Bench is affirmed.
24. According to the notification dated 01.05.1987, the employees
joining the service after 01.01.1986 would always be under GPF. With F
respect to those who were in service on 01.01.1986, said employees
would be deemed to have “come over” to GPF unless an option to continue
to be under CPF was consciously exercised before the cut-off date.
Thus, when the Scheme was framed and was sought to be implemented,
the concerned authorities must have taken into account the entire
magnitude such as, the number of employees and the likelihood of impact G
on the management of the fund, so that reasonable returns can be effected
by way of pension upon retirement of such persons. Going by the intent
of the notification, those who were to opt for CPF, were an exception
and the general rule was that everybody after 01.01.1986 would normally
be covered by GPF. It is in this context that the number of original
H
1004 SUPREME COURT REPORTS [2022] 7 S.C.R.

A petitioners in Shashi Kiran batch of cases has to be seen. We are
concerned with only 75 persons. On the other hand, the bulk of people
namely 2469 employees were granted the choice of reverse switchover
and they were allowed all the benefits under GPF. It can reasonably be
said that when the notification dated 01.05.1987 was issued, the authorities
were conscious of the possibility that all the employees may ‘come over’
B
to GPF. With that possibility in mind, the fund was constituted and the
affairs were arranged. The shift of those 75 employees would not in any
way affect the strength and the character of the fund if a direction that
the entire contribution made by the authorities be returned with reasonable
rate of interest is issued. These 75 petitioners had approached the Court
C in the year 2010. At this length of time, it is not as if any floodgates are
going to open and there will be drain on the resources of the State. A
direction can, therefore, be issued, as was done by the learned Single
Judge in paragraph 20 of his Judgment in R.N. Virmani batch of cases
and which aspect was mentioned in the letter dated 23.01.2017 referred
to in paragraph 8 hereinabove, for recouping the contribution under CPF
D
with 8% simple interest per annum.
25. Considering the circumstances on record, in our view, the
decision rendered by the Division Bench of the High Court in Shashi
Kiran batch of cases does not call for any interference except to the
extent of direction for recouping of the contribution under CPF with 8%
E simple interest per annum. It is possible that at this length of time, some
of the employees in Shashi Kiran batch of cases may not be interested
in switchover to GPF. But an option must be afforded to them in such
manner as the authorities deem appropriate.
26. All these appeals are therefore disposed of in aforestated terms,
F with no order as to costs.

Nidhi Jain Appeals disposed of.

G

H