BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23.07.2014 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.P.(MD)No.14385 of 2011 and M.P.(MD)No.3 of 2011, W.P.(MD)No.6289 of 2011 and M.P.(MD)Nos.1 of 2011 and 2 of 2012 and W.P.(MD)No.1132 of 2011 and M.P.(MD)No.2 of 2011 W.P.(MD)No.14385 of 2011 1.Dr.K.A.Kuppusamy 2.Dr.P.Shanmugasundram 3.Dr.V.Venkataramani 4.Dr.N.Kalyanasundram 5.Dr.R.Chinnadurai 6.Dr.N.Sivan 7.Dr.A.K.Banerjee 8.Prof.P.Somaskandan 9.Dr.N.Anantharaman 10.Dr.S.Raghavan ..Petitioners versus 1.The Secretary, Ministry of Human Resource Development, Department of Technical Education, Government of India, Shastri Bavan, New Delhi-110 001.
2.The Deputy Secretary, The Government of India, Ministry of Human Resource Development, Department of Higher Education, New Delhi.
3.The Chairman, The National Institute of Technology, Thuvakudi, Trichy-15.
4.The Director, The National Institute of Technology, Thuvakudi, Trichy-15..Respondents W.P.(MD)No.6289 of 2011: Dr.K.A.Kuppusamy ..Petitioner versus 1.The Union of India, rep.by its Secretary, Ministry of Human Resources Development, Department of Technical Education, Shastri Bhavan, New Delhi-110 001.
2.The Chairman, Board of GovernORS.National Institute of Technology, Trichy-620 015.
3.The Director, National Institute of Technology, Trichy-620 015..Respondents W.P.(MD)No.1132 of 2011: Dr.G.Saravanan Ilango ..Petitioner versus 1.The Secretary, Ministry of Human Resource and Development, Department of Technical Education, Government of India, Shastri Bavan, New Delhi-110 001.
2.The Chairman, The National Institute of Technology, Thuvakudi, Trichy-15.
3.The Director, The National Institute of Technology, Thuvakudi, Trichy-15..Respondents W.P.(MD)No.14385 of 2011 filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus calling for the records relating to the impugned communication issued by the 2nd Respondent in his proceedings No.F.19 - 6/2009 - TS.III (pt) dated 02.11.2011 and quash the same and consequently directing the Respondents to continue to provide the benefits of conversion from contributory provident fund - cum ?.
gratuity scheme to general provident fund - cum - gratuity - cum - pension scheme to the PetitioneRs.as per the resolutions passed by Board of Governors of the 3rd and 4th Respondents institution in their 4th, 7th, 8th and 25th meetings.
W.P.(MD)No.6289 of 2011 filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus directing the 2nd Respondent to implement the minutes of 4th meeting of the Board of Governors held on 8th May 2005 in Item No.V of page 15 and the minutes of 25th meeting of the Board of Governors held on 02.12.2010 in Item No.3.3 relating to conversion of Contributory Provident Fund to General Provident Fund-cum-gratuity-cum- pension and consequently directing the Respondents to disbuRs.all the retirement benefits and pension under the General Provident Fund-cum- gratuity-cum-pension and all other attendant and other benefits to the petitioner in the sixth pay commission scale, within a time frame fixed by this Court.
W.P.(MD)No.1132 of 2011 filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus calling for the records pertaining to the Switch over of 12 faculties from CPF to GPF cum Pension Scheme as approved in the minutes of the 25th board of Governors meeting dated 02.12.2010 of the National Institute of Technology, Trichy by the 2nd Respondent in item No.3.3, Quash the same and consequently direct the 2nd and 3rd Respondents not to permit the switch over of any faculty from CPF to GPF cum Pension Scheme effective from 01.01.2004.
W.P.(MD)No.14385 of 2011 !For Petitioners : Mr.K.M.Vijayan, Sr.Counsel for Mr.B.Saravanan For Respondents : Mr.G.R.Swaminathan, Assistant Solicitor General of India for R1 and R2 Mrs.Maria Roseline for R3 and R4 W.P.(MD)No.6289 of 2011 For Petitioner : Mr.K.M.Vijayan, Sr.Counsel for Mr.B.Saravanan For Respondents : Mr.G.R.Swaminathan, Assistant Solicitor General of India for R1 Mrs.Maria Roseline for R2 and R3 W.P.(MD)No.1132 of 2011 For Petitioner : Mr.N.Mohideen Basha For Respondents : Mr.G.R.Swaminathan, Assistant Solicitor General of India for R1 Mrs.Maria Roseline for R2 and R3 :COMMON
ORDERThe petitioners in W.P.(MD)No.14385 of 2011 and the petitioner in W.P.(MD)No.6289 of 2011 were all appointed in the Regional Engineering College (now National Institute of Technology).Tiruchirappalli.
The Regional Engineering College (hereinafter referred to as ?.REC?.) was established by a Society registered under the Tamil Nadu Societies Registration Act.
There were two schemes floated for the benefit of employees in respect of pension.
The fiRs.one was Contributory Provident Fund-cum-Gratuity Scheme (hereinafter referred to as ?.CPF Scheme?.) and the other one was General Provident Fund-cum-Gratuity-cum-Pension Scheme (hereinafter referred to as ?.GPF Scheme?.).As per these two Schemes, if an employee of the erstwhile REC had opted to come under the CPF Scheme, his services shall extend up to 60 years of age.
In other words, he would retire on completion of 60 years of age.
If an employee has chosen to come under GPF Scheme, then, he will retire on completion of 58 years of age.
In this regard, the Government issued G.O.Ms.No.771, Education (J1) Department, dated 07.06.1990, giving option to the employees to chose either one of the Schemes.
The petitioners in these two writ petitions have opted to come under CPF Scheme.
Probably, they had chosen to come under CPF Scheme, because they could be in services up to 60 yeaRs.2.While so, by means of a Memorandum of Understanding, between the Union Government and REC Society in the year 2003, REC was taken over by the Central Government and the same was renamed as ?.National Institute of Technology?., Tiruchirappalli (hereinafter referred to as ?.NIT?.).The erstwhile employees of REC continued to be the employees of NIT from 2003.
The Central Government had constituted a governing body which looked after the affairs of the NIT.
Thereafter, in the year 2007, the Central Government had brought into force, the ?.National Institute of Technology Act, 2007?.
with effect from 05.06.2007.
All these petitioners except Prof.P.Somaskandan, the eighth petitioner in W.P.(MD)No.14385 of 2011, have retired from service.
3.Even before the REC Society was taken over by the Central Government, the retirement age of the employees of REC was made uniformly at 60 with effect from 01.06.2000.
After REC Society was taken over by the Central Government, the retirement age of the employees was raised to 62 and thereafter it was again enhanced to 65.
Thus, as of now, the age of retirement of the employees is uniformly 65.
Thus, from the year 2000, there is no better benefit in respect of the longevity of service for those employees who had opted to come under the CPF Scheme.
4.In those circumstances, there were representations from the petitioners and few similarly placed persons to bring them under the GPF Scheme, because, according to the petitioneRs.monetarily, it is very beneficial for them.
The said request was considered by the Board of Governors in a meeting held on 08.05.2005 in which it was resolved to allow conversion of a total number of 12 employees including the petitioners to GPF Scheme.
Subsequently also, in a number of meetings held, the Board of Governors took the uniform view.
Finally, in the 25th meeting of the Board of Governors held on 02.12.2010, the Board of Governors resolved on this subject as Item No.3.3, which reads as follows: ?.Item No.3.3 Consideration of Grant of approval for CPF to GPF for twelve faculty.
The Board considered the issue of conversion CPF to GPF granted to 12 faculty members in the past.
Out of the 12 faulty membeRs.6 have already received their pension benefits (refixation of pension in terms of 6th Pay Commission is pending).They are listed below as Sl.Nos.1 to 6.
1.Dr.P.Subramanian 2.Dr.P.Shunmugasundaram 3.Dr.S.Sundaram 4.Dr.V.Venkataramani 5.Dr.N.Kalyanasundaram 6.Dr.R.Chinnadurai 7.Dr.K.A.Kuppusamy 8.Dr.V.Sivan 9.Dr.A.K.Banerjee 10.Prof.P.Somaskandan 11.Dr.N.Anantharaman 12.Dr.S.Raghavan The remaining 6 faculty membeRs.as listed under Sl.Nos.7 to 12, have not received conversion from CPF to GPF.
The Board considered the following: (a)The Board had taken a decision to permit conversion due to the fact that the retirement age benefit of 2 years for CPF faculty was withdrawn once RECT became NITT.
The age of retirement was made uniform initially at 62 years and subsequently at 65 yeaRs.The Board took into consideration the fact that when the service conditions are changed, the faculty must be given the opportunity to relook at CPF to GPF conversion and make their preference known.
This would be the only couRs.to natural justice.
(b)The Board also considered the fact that the decision was taken with the concurrence of MHRD and specific letters exchanged between the Institute and MHRD in this regard.
In the light of the above, the Board advised that the CPF to GPF conversion had to be done and cannot be reversed.
The Board directed the following: (i) Response to the CAG report must be sent by the Institute clearly detailing the reasons for change and also enclosing copies of the correspondent with MHRD.
(ii) An affidavit to be filed in the Madurai Bench of the Madras High Court clearly detailing the fact that a review has been done and it has been concluded by the Board that the conversion from CPF to GPF is valid and tenable.
The Board reaffirmed that the conscious decisions taken in its meetings (4th, 7th, 8th and 17th) to permit the conversion from CPF to GPF for the 12 faculty members is correct and must be implemented.?.
5.The decision of the Board was forwarded to the Central Government for its final decision.
The Central Government, through the Deputy Secretary, NIT, Ministry of Human Resources Development, Department of Higher Education, dated 02.11.2011, rejected the said proposal.
In the said proceedings, the Central Government has stated as follows: ?.I am directed to refer to your letter No.AMG-II/IR/DDO (Cash)/HRD/2008-09/912 dated 17.02.2011 on the above subject and to state that the matter was taken up with the Integrated Finance Division of this Ministry.
IFD has since observed that as per the O.M.No.4/1/87-P.1.C-1 dated 01.05.1987 (copy enclosed) issued by the Department of Pensions & Pensioner's Welfare, option was given to Government employees working under the CPF Scheme to come over to the pension scheme or to continue under the CPF Scheme.
The option was to be exercised to the Head of Office by 30.09.1987, in a prescribed form, and if no option was received by the Head of Office by the above date, the employees will be deemed to have come over to the pension scheme.
Hence, it is amply clear that any option for conversion from CPF to GPF scheme could be exercised only upto 1st May, 1987 only and not beyond the date.
Moreover, the option once exercised would be final.
Therefore, the conversion from CPF to GPF is not admissible after 01.01.1987.
2.This issues with the approval of the Competent Authority in this Ministry.?.
6.The petitioners have now come up with these two writ petitions challenging the decision of the Central Government and seeking a further direction to implement the decision taken in the 25th Meeting of the Board of Governors so as to convert the petitioners from CPF Scheme to GPF Scheme.
7.The petitioner in W.P.(MD)No.1132 of 2011 was appointed as Assistant Professor in the year 2006.
Now, he is an Associate Professor.
He has come up with this writ petition seeking to quash the decision of the Board of Governors in its 25th Meeting held on 02.12.2010 permitting the petitioners and other faculties to switch over from CPF to GPF Scheme and consequently to direct the National Institute of Technology not to permit the switch over of any faculty from CPF to GPF Pension Scheme effective from 01.01.2004.
8.Since the issues involved in all these writ petitions are common, they were taken up together and they are disposed of by means of a common order.
I have heard Mr.K.M.Vijayan, learned Senior Counsel appearing for the petitioners in W.P.(MD)Nos.14385 and 6289 of 2011 and Mr.N.Mohideen Basha, learned counsel appearing for the petitioner in W.P.(MD)No.1132 of 2011, Mrs.Maria Roseline, learned Standing Counsel appearing for NIT and Mr.G.R.Swaminathan, learned Assistant Solicitor General of India appearing for the Union Government and also I have perused the records carefully.
9.Though the narration of facts hereinabove may give an initial impression that these writ petitions involve issues which are complex in nature, a deep look into the same would explicitly show that the issue is very small.
The issue is as to whether the petitioners are entitled for such conversion from one scheme to another.
10.Admittedly, earlier, as per G.O.Ms.No.771, Education (J1) Department, dated 07.06.1990, of the Government of Tamil Nadu, the petitioners were given option and they opted to come under CPF Scheme.
As I have already pointed out, the petitioners would have been under the impression that CPF Scheme would be more beneficial, because, their services could extend till 60 years of age, whereas for the employees who have opted to come under GPF Scheme, their services would extend only up to 58 years of age.
The petitioners do not dispute their having opted to come under the CPF Scheme.
11.After the above said option, much water has flown.
As I have already pointed out, in the year 2003, the REC Society which was hitherto run by the Society registered under the Tamil Nadu Societies Registration Act, was taken over by the Central Government.
Thus, after the REC had become NIT, the State Government had no control over the NIT, as the executive power of the State Government did not extend to NIT.
Out and out, after REC had become NIT, it became a Central Government Organisation, because it was governed by the Board of GovernORS.constituted by the Central Government.
Of course, between 2003 and 2007, until the NIT Act came into being, the affairs of the NIT were governed only by the executive orders and instructions of the Central Government.
Even before the NIT Act could come into force, the Board of Governors which was the supreme governing body of NIT, passed an unanimous resolution on 08.05.2005 permitting the petitioners to convert from CPF Scheme to GPF Scheme.
This was done because of lot of changes which had happened in the service conditions and other related matteRs.after REC was taken over by the Central Government in 2003.
The Board, in its meetings subsequently held on 07.01.2006, 13.05.2006 and 02.12.2010, also reiterated the same.
As a matter of fact, the 25th Meeting of the Board was after the NIT Act had come into being, though the earlier meetings were held when NIT Act had not come.
In the 25th Meeting which is crucial, the Board resolved as follows: ?.The Board reaffirmed that the conscious decisions taken in its meetings (4th, 7th, 8th and 17th) to permit the conversion from CPF to GPF for the 12 faculty members is correct and must be implemented.?.
When this was forwarded to Central Government, the Central Government issued the impugned order stating that such conversion is not possible.
12.The learned Senior Counsel appearing for the petitioners in W.P.(MD)Nos.14385 and 6289 of 2011, would submit that the said stand taken by the Central Government cannot be correct for several reasons.
FiRs.of all, the learned Senior Counsel would submit that after the NIT Act had come into being, in exercise of the powers conferred under Sub-Section 1 of Section 26 of the NIT Act, 2007, the Central Government, with the prior approval, framed the fiRs.Statute for all National Institutes of Technology governed by the said Act.
Undoubtedly, this Statute has got statutory force.
This can be enforced in the Court of law.
The learned Senior Counsel would point out that Clause 29 of the Statute deals with Provident Fund and Pension Scheme, which reads as follows: ?.29.
PROVIDENT FUND AND PENSION SCHEMES: Employees of the Institute appointed prior to 1.1.2004 will be governed by Central Civil Services (Pension) Rules, 1972 and Central Provident Fund (Central Services) Rules, 1960 and the Employees appointed on or after 1.1.2004 will be governed by New Pension Scheme of Central Government.?.
13.The learned Senior Counsel would submit that even assuming that the petitioners had chosen to continue to be under the CPF Scheme, that scheme can no-more be implemented in view of Section 29 of the Statute which makes it mandatory that in respect of employees who were appointed prior to 01.01.2004, they will be governed by Central Civil Services (Pension) Rules, 1972 and Central Provident Fund (Central Services) Rules, 1960.
He would further point out that as per Clause 29, insofar as the employees who were appointed on or after 01.01.2004 are concerned, they will be governed as per the New Pension Scheme of the Central Government.
In the case on hand, according to the learned Senior Counsel, the petitioners in W.P.(MD)Nos.14385 and 6289 of 2011, were all appointed prior to the crucial date, ie., 01.01.2004.
Therefore, they are entitled to be governed by Central Civil Services (Pension) Rules, 1972 and Central Provident Fund (Central Services) Rules, 1960.
The learned Senior Counsel would further submit that assuming that the petitioneRs.request for conversion cannot be accepted, even then, the petitioners will have the benefit of being governed by the Central Civil Services (Pension) Rules, 1972 and Central Provident Fund (Central Services) Rules, 1960.
Thus, according to the learned Senior Counsel, the stand of the Union Government that the petitioners shall continue to be governed by CPF Scheme, is not correct.
In this regard, the learned Senior Counsel, Mr.K.M.Vijayan, would rely on a judgment of the Division Bench of the Punjab and Haryana High Court in L.P.A.No.2054 of 2012 dated 12.12.2012.
In that judgment, the Division Bench, after having referred to Clause 29 of the Statute of NIT, has categorically held as follows: ?.It is clear from the above that from 1.1.2004 onwards those employees, who were appointed on or after 1.1.2004 are covered by the New Pension Scheme of Central Government.
This very provision also takes care of those employees who have been appointed prior to 1.1.2004, as it is abundantly clear therefrom that such employees would be covered by Central Civil Services (Pension) Rules, 1972.
The applicability of these provisions to the employees of NIT, Kurukshetra and NIT, Jalandhar, is not in dispute.?.
14.Referring to the same, the learned Senior Counsel submits that in the case on hand also, applying Clause 29 of the Statute, the petitioners should be extended the benefit of the above said Central Civil Services (Pension) Rules, 1972 and Central Provident Fund (Central Services) Rules, 1960.
The learned Senior Counsel would therefore submit that the relief sought for in W.P.(MD)Nos.14385 and 6289 of 2011 can be moulded and the petitioners can be ordered to be given the benefit of those two Rules, as per Clause 29 of the Statute.
15.Mr.G.R.Swaminathan, the learned Assistant Solicitor General of India, appearing for the Union of India, would stoutly oppose the same.
According to him, if once an option had been exercised by the petitioners to come under CPF Scheme, it is not at all permissible later on for them to convert into a different Scheme.
In this regard, the learned Assistant Solicitor General of India, would rely on a judgment of the Hon'ble Supreme Court in National Council of Educational Research and Training v.
Shyam Babu Maheshwari and otheRs.reported in (2011) 6 SCC412 wherein, in paragraph-12 it has been held as follows: ?.12.We may now consider whether dehors the decision of this Court in R.Subramaniam [(1996) 10 SCC72, the respondent could be allowed to opt for the Pension Scheme having earlier opted for the CPF Scheme while in service.
Admittedly, the respondent while he was in service of NCERT had opted for the CPF Scheme way back in 1977 and on his retirement, he had availed the benefits of the CPF Scheme.
This Court has held in Krishena Kumar v.
Union of India [(1990) 4 SCC207]., V.K.Ramamurthy v.
Union of India [(1996) 10 SCC73].and Union of India v.
Kailash [(1998) 9 SCC721]., that once an employee has opted for the CPF Scheme, his exercise of option was final and he is not entitled to change over to the Pension Scheme because the two Schemes are entirely different.
It, however, appears that the Government in the Ministry of Personnel and Training by the OM dated 06.06.1985 gave an opportunity to Central Government employees who had earlier opted for the CPF Scheme to opt for the Pension Scheme.?.
Relying on the above judgment, the learned Assistant Solicitor General of India, would submit that since the petitioners had opted to come under the CPF Scheme, it is not open for them now to switch over to a different scheme, ie.
GPF Scheme simply because it is beneficial to them now.
16.In respect of the judgment of the Punjab and Haryana High Court, stated supra, the learned Assistant Solicitor General of India would refer to paragraph-2 of the said judgment, wherein it has been observed that employees of the two institutes, viz.
NIT, Kurukshetra and NIT, Jalandhar, were not covered by any pension scheme, though the Board of Governors of these two institutes had ratified the recommendations of the Finance Committee for introduction of the pension scheme on the State Government pattern with effect from 01.04.1994.
The learned Assistant Solicitor General of India would submit that because there was no scheme already in place, the Division Bench of Punjab and Haryana High Court took the view that Clause 29 of the Statute should be applied uniformly.
Accordingly, the employees should be given the benefit of Central Civil Services (Pension) Rules, 1972 and Central Provident Fund (Central Services) Rules, 1960.
17.So far as NIT, Tiruchirappalli is concerned, according to the learned Assistant Solicitor General of India, since CPF and GPF Schemes were already in force, by applying Clause-29 of the Statute, the employees who have opted to be in either one of these schemes shall not be eligible to come under Central Civil Services (Pension) Rules, 1972 and Central Provident Fund (Central Services) Rules, 1960.
It is the further contention of the learned Assistant Solicitor General that the judgment of the Punjab and Haryana High Court cannot be made applicable to the present case.
In that case, factually it was found that NIT, Kurukshetra and NIT, Jalandhar had no such scheme like CPF or GPF Scheme, which were in force in respect of NIT, Tiruchirappalli.
18.The learned counsel for the NIT, while supplementing the arguments of the learned Assistant Solicitor General of India, would submit that as per the Central Civil Services (Pension) Rules, 1972, the petitioners have got option to come under one of the schemes, but in the case on hand, since the petitioners had opted to come under CPF Scheme already, they are debarred from seeking to come under Central Civil Services (Pension) Rules, 1972 and Central Provident Fund (Central Services) Rules, 1960.
Thus according to the respondents, the W.P.(MD)Nos.14385 and 6289 of 2011 are liable to be dismissed.
So far as W.P.(MD)No.1132 of 2011 is concerned, since the Central Government has rejected the Resolution of the Board of Governors of NIT, Tiruchirappalli, the said writ petition also deserves to be dismissed, because the prayer in the said writ petition is to quash the Resolution of the Board of GovernORS.19.The NIT have filed a counter wherein the above statements made by the learned counsel for the NIT, have been reiterated.
Similarly, the Secretary, Ministry of Human Resources Development, New Delhi, has also filed a counter, wherein he has reiterated the above objections.
20.On these contentions, one thing should be made clear.
So long as the Regional Engineering College was functioning as a Society until 2003, the field relating to pension and Provident Fund was governed by the executive powers of the State Government.
Therefore, until 2003, CPF and GPF schemes floated by the State Government applicable to the REC, were in force.
In 2003, by means of an MOU, after the REC Society was taken over by the Central Government, ie., after coming into being of the National Institute of Technology, Tiruchirappalli, the executive powers of the State Government in respect of the affairs of National Institute of Technology, ceased to have any effect.
After that, it has fallen within the powers of the Central Government.
Therefore, any scheme which is sponsored by the Central Government either in exercise of its executive power or statutory power alone would be applicable to the employees of the NIT, Tiruchirappalli.
Since the Central Government had not stated anything about the pension or Provident Fund Schemes, applicable to the employees of NIT, Tiruchirappalli, the Board of Governors who were the supreme governing body as per the executive order of the Central Government, decided to continue to have the erstwhile CPF and GPF Schemes.
However, having regard to the changes in the service conditions of employees, more particularly the retirement age, the Board took a conscious decision to allow conversion from CPF to GPF.
That is the reason why the Board reiterated its stand very particularly, in its 25th meeting and reaffirmed it, by stating that the decision to permit conversion from CPF to GPF in respect of 12 employees was taken consciously.
21.In my considered opinion, there is no infirmity or illegality or irregularity in the said decision taken by the Board.
At this juncture, we have to take note of the fact that in the year 2007, the National Institute of Technology Act came into being, and thus, the NIT, Tiruchirappalli falls within the ambit of the said Act.
In exercise of the powers conferred under the said Act, under Sub-Section 1 of Section 26, the Statute was issued by the Ministry of Human Resources Development.
There could be no doubt that this Statute has got statutory force as it is a delegated legislation.
It need not be over emphasised that when a particular field is occupied by a legislation, then, the executive power of the Government shall not be extended to issue any order in conflict with the said Statute.
In other words, in respect of the field occupied by means of a legislative act, there could be no executive order in force which will run contrary to the statutory provisions.
Applying this well settled Constitutional position, I have to hold that after the Statute had come into force, all the executive orders and instructions which were in place prior to coming into force of the said Statute shall cease to have any effect.
Therefore, the argument of the learned Assistant Solicitor General of India that the CPF, which the petitioners have opted, will continue to have force, cannot be countenanced at all.
As I have already pointed out, after coming into force of the Statute, the Provident Fund and Pension shall be governed only by the provisions of the Statute alone.
22.Now, as pointed out by the learned Senior Counsel appearing for the petitioneRs.Clause 29 of the Statute mandates that employees of the institute appointed prior to 01.01.2004 shall be governed by the Central Civil Services (Pension) Rules, 1972 and Central Provident Fund (Central Services) Rules, 1960.
In respect of employees who were appointed on or before 01.01.2004, they will be governed by the new Pension Scheme of the Central Government.
Therefore, in view of this mandatory provision, which has got statutory force, occupying the field, I have to hold that the petitioners are entitled for the benefits of the Central Civil Services (Pension) Rules, 1972 and Central Provident Fund (Central Services) Rules, 1960, because they were appointed prior to 01.01.2004.
23.Now, turning to the contention of the learned Assistant Solicitor General of India that these two Rules shall not be applicable to the petitioneRs.because they are already governed by CPF Scheme, I am unable to accept this contention.
The reason is that it is too well settled that when a particular field is occupied by a statutory provision, there could be no other Executive Order, Circular or Instructions, having overriding effect over the statute.
Therefore, this argument of the learned Assistant Solicitor General of India deserves only to be rejected.
24.The Division Bench of Punjab and Haryana High Court in the judgment, cited supra, has taken the very same view which I have taken as above.
But the learned Assistant Solicitor General of India, would try to distinguish the said judgment by stating that the said judgment was concerned only with two NITs, one at Kurukshetra and the other at Jalandhar.
According to him, those two NITs have no such Provident Fund Scheme and therefore, the Punjab and Haryana High Court took the view that as per Clause 29, they are entitled for the benefit.
This argument though attractive, does not persuade me at all.
A close reading of the judgment of the Division Bench of Punjab and Haryana High Court would go to show that the fact that there was no scheme already in place in respect of those two NITs had never influenced the mind of the Division Bench to come to the conclusion that the employees are entitled to the benefit of the Rules as per Clause 29 of the Statute.
Instead, the Division Bench has come to the conclusion that the employees are entitled for the Pension and Provident Fund as per the Rules enumerated in Clause 29 of the Statute, because, Statute has got overriding effect in respect of administrative instructions or executive ordeRs.Therefore, the distinction sought to be made by the learned Assistant Solicitor General of India cannot be accepted.
25.The argument of the learned counsel for NIT, is that even as per the 1972 Rules as mandated in Clause 29 of the Statute, the petitioners can exercise option to come under any particular scheme, but, since in this case the petitioners have already decided to come under CPF Scheme, they cannot switch over.
This argument also does not persuade me, because, fiRs.of all, the petitioners are to be brought within the ambit of two Rules enumerated in Clause 29 of the Statute.
After having brought them within the purview of these two Rules, then, if there is any option which could be exercised by the petitioneRs.they should be offered such option.
Therefore, it cannot be now said that such option exercised by the petitioners already, will fall within the option to be exercised under these Rules.
This argument cannot be accepted at all by any stretc.of imagination, and therefore, the same is also rejected.
26.The learned Assistant Solicitor General, placed much reliance on the decision of the Hon'ble Supreme Court in National Council of Educational Research and Training v.
Shyam Babu Maheshwari and otheRs.cited supra, wherein the Hon'ble Supreme Court has taken the view that if once an option is exercised, the employee is not entitled to change over to a different Pension Scheme, because, the two schemes are entirely different.
This judgment, in my humble opinion, is not at all applicable to the facts of the present case.
That was a case where there were two centrally sponsored schemes available, and if one has chosen to come under the purview of one scheme and seek for switching over, the Hon'ble Supreme Court, said that it is not possible, because, having opted one scheme, it is not permissible to change over to the next scheme.
But in the case on hand, the facts are totally distinguishable.
Here, as I have already pointed out, till the year 2003, the executive power of the State Government was extended and after 2003, the erstwhile REC had become NIT, falling within the executive power of the Central Government.
The Central Government has passed the National Institute of Technology Act, and in the said Act, Statute has been framed which governs the Pension and Provident Fund Schemes.
Therefore, it is not a question of switch over from one scheme to another, but it is a question of implementing the statutory provision.
27.Now turning to the writ petition in W.P.(MD)No.1132 of 2011, at the outset, this Court raised a preliminary query to the learned counsel for the petitioner as to what is his locus standi to question the decision of the Board.
Admittedly, it is not a public interest litigation.
Unless the petitioner in this writ petition has made out any personal legal right as against the proposed switching over, he cannot have any locus standi to file this writ petition.
When this was pointed out to the learned counsel for the petitioner, he submitted that there were several irregularities committed by NIT.
If that be so, the remedy for the petitioner lies elsewhere and not in this writ petition.
This writ petition pertains only to issue of Pension and Provident Fund.
In the other two writ petitions, the decision taken in respect of Pension and Provident Fund of those petitioners are in question, which will have no impact on the petitioner in W.P.(MD)No.1132 of 2011.
Therefore, I hold that W.P.(MD)No.1132 of 2011 is not at all maintainable for want of locus standi.
On this ground, W.P.(MD)No.1132 of 2011 deserves to be dismissed.
28.In the result, W.P.(MD)No.1132 of 2011 is dismissed.
W.P.(MD)Nos.14385 and 6289 of 2011 are disposed of directing the respondents therein, to implement the Central Civil Services (Pension) Rules, 1972 and Central Provident Fund (Central Services) Rules, 1960 to the petitioners and give them all the consequential monetary benefits.
It is further directed that such consequential order shall be passed by the NIT, within a period of three months from the date of receipt of a copy of this order.
Consequently, the connected miscellaneous petitions are closed.
No costs.
Index : Yes/No 23.07.2014 Internet : Yes/No KM To 1.The Secretary to Government, Ministry of Human Resource Development, Department of Technical Education, Government of India, Shastri Bavan, New Delhi-110 001.
2.The Deputy Secretary, The Government of India, Ministry of Human Resource Development, Department of Higher Education, New Delhi.
3.The Chairman, The National Institute of Technology, Thuvakudi, Trichy-15.
4.The Director, The National Institute of Technology, Thuvakudi, Trichy-15.
S.NAGAMUTHU, J.
KM W.P.(MD)No.14385 of 2011 and M.P.(MD)No.3 of 2011, W.P.(MD)No.6289 of 2011 and M.P.(MD)Nos.1 of 2011 and 2 of 2012 and W.P.(MD)No.1132 of 2011 and M.P.(MD)No.2 of 2011 23.07.2014