By Hon’ble Dr.Chhabilendra Roul, Member (A):-

1. The present Original Application has been filed by the applicant against order dated 30.1.2019 passed by the respondents, denying the request of the applicant to be covered under the GPF-cum-Pension Scheme.

2. The factual matrix of the case is as under:

2.1. The present applicant joined the Kendriya Vidyala Sangathan, (KVS) as TGT (English) on 13.09.1982. The respondent-Kendriya Vidyala Sangathan have circulated vacancies for Direct Recruitment of PGT (English) and the present applicant has applied for the same. After being successful in the selection process, she was issued an offer of appointment letter as PGT (English) vide Memorandum dated 07.12.1993. The applicant joined as PGT (English) on 14.12.1993. On 10.10.2018, the applicant submitted a representation to Commissioner, KVS, New Delhi with a prayer to extend GPF-cum-Pension Scheme to her in pursuant to the OM of KVS dated. 1.9.1988 whereby the respondents had introduced a GPF-cum-Pension Scheme to the existing employees of KVS Scheme, unless they otherwise expressly to opt remain in CPF Scheme. As the respondent-KVS did not respond to her representation for considerable time, the applicant filed OA No. 4048/2018. The Principal Bench of this Tribunal vide its order dated 24.10.2018 directed the respondents to decide the representation of the applicant 10.10.2018 by way of passing a reasoned and speaking order. The respondents vide their impugned order dated 30.1.2019 have considered the representation dated 10.10.2018 of the applicant and have rejected the prayer of the applicant to be considered for migration to GPF-cum-Pension Scheme. Be aggrieved, the Applicant has filed the present O.A., seeking the following relief(s):-

“i. Call for the original file(s) / record(s) of the respondents dealing with the case of the applicant and peruse the same.;

ii.To quash and set aside the impugned dated 30.01.2019 30.01.2019 passed by respondents.

iii. To declare the action of respondents in not treating the applicant deemed under the deemed category for the purpose of GPF- cum-Pension Scheme as illegal and arbitrary and direct the respondents to allow the applicant to be governed by GPF cum-Pension Scheme from the date of retirement, fix her pensionary benefits and release the same with all consequential benefits;

iv. To allow the interest of 12% in arrears in favour of the applicant;

V. To award cost upon the respondents in favour of the applicant;

vi.To grant any other benefits as deemed it by their Lordship of this Hon'ble Tribunal;

3. On admission of the OA notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed his rejoinder to the same.

4. The applicant in her OA, as well as by her counsel during arguments have tendered the following grounds in support of relief she has sought in the present OA:

4.1 The applicant applied for post of PGT (English) for Direct Recruitment for the said post and she was successful in the selection process in pursuance of which she was appointed as PGT (English) as on 7.12.1993. This appointment is a fresh appointment and as per OM dated 1.9.1998 issued by the respondents she is automatically covered under the GPF-cumPension Scheme. Clause 3 of the said OM states as follow:-

“3. All CPF beneficiaries, who were in Service on 1.1.1986 and who are still in service on the date of these order’s will be deemed to have come over to the Pension Scheme.”

Further, the said OM states that if no option is received by the Head of Office/ Principal by the stipulated date then the employee deemed to have been covered under the Pension Scheme. Learned counsel for the applicant stated that as per Clause 3 of the said OM, as the present applicant joined as a Direct Recruitment as PGT (English) on 14.12.1993, she is automatically covered under the GPF-cum-Pension Scheme.

4.2. The respondents have extended the benefit of Pension Scheme considering the representation of Shri M.S. Chauhan, Deputy Commissioner of KVS (Retrd) and Shri Isampal, Deputy Commissioner of KVS Bhopal Region. The applicant seeks similar benefits based on the principle of equality to be covered under GPF-cum- Pension Scheme. The refusal of the respondents , vide impugned order dated 30.1.2019 amounts to discrimination to the applicant.

4.3. In support of claims made by the applicant, the learned counsel for the applicant have cited the orders passed by this Tribunal in OA nos. 3112/13 titled Hoshiyar Singh Vs. Union of India & Ors. ; OA-2931/2016 titled Dr. N.K. Mishra vs. Union of India & Anr. ; OA-2073/2014 tilted B.C. Tyagi vs. Union of India & Ors. : OA-1027/2014 titled Santosh Kumar Verma Vs. KVS & Anr.; OA-1039/2014 tilted Usha Rani Singh Vs. KVS& Anr. ; OA-1865/2015 titled Jaishree Singh Tomar vs. Commissioner of KVS & OA-1987/2015 titled Shri Dhar Mishra vs. Union of India & ors. In all these cases, the facts and circumstances relates to the fresh appointment of the applicants as PGT from erstwhile position of the TGT based on fresh selection process. It has been admitted in those cases that the appointments as TGT of the erstwhile TGTs are considered as Direct Recruitment and fresh recruitment after the issuance of OM dated 1.9.1988.

5. Learned counsel for the applicant mentions that in all these aforementioned cases, this Tribunal has given the benefit of GPF-cum-Pension Scheme to the applicants therein because they were considered as a fresh appointments after the issuance of aforementioned OM, and as per clause 3 of the said OM issued by the respondents all appointees after 1.1.1986 are automatically covered under the Pension Scheme.

6. Per contra, the learned counsel for the respondents stated that the facts and circumstances of the present case are different from the OAs cited by the learned counsel for the applicant in support of his arguments. In the instant case, the applicant joined as PGT without any brake of services from his erstwhile positions of TGT. In view of this, her services segued with the past service. In other words, the applicant’s service is continuous from her original date of entry into the service of KVS. The learned counsel for the respondents further averred that the applicant, in reference to OM dated 1.9.1988, had opted to be in the CPF Scheme. According to the said OM, only those CPF optiees of KVS employees who did not give their option for the retention of CPF were shifted to GPF-cum-Pension Scheme. As the present applicant expressly gave her option to remain in CCF Scheme, she continued to remain in CCF Scheme, after the operation of OM dated 1.9.1998. As her service is continuous from the TGT to PGT, she remained under the CPF Scheme even after her selection and appointment as PGT (English). The learned counsel for the respondents drew attention of this Tribunal to its decision in OA No. 973/2018 titled Ram Prit Thakur vs. KVS & ors., wherein it was held that:

“Hence, this appears to be a clear case in which after giving his option for continuing under the CPF Scheme, the applicant had a change of mind after his retirement on 28.2.2015 and now wishes to avail the benefit of FPG Scheme. Hence, this OA is squarely covered by the decision of the Hon’ble Supreme Court in K.V.S. and others Vs. Jaspal Kaur and others ( supra)”

7. The learned counsel for the respondents further argued that this present OA of the applicant is barred by limitation as the applicant had joined in KVS on 13.9.82 and she has opted for CPF Scheme after the issuance of OM dated 1.9.1988. She never challenged the decision of the respondents to retain her under the CPF Scheme. Rather she gave option to remain in CCF Scheme.

7.1. Secondly, the applicant has joined as PGT on 14.12.1993. She drew her salary and the salary statement gave the detailed contribution by her to the CCF Scheme in pursuance with the OM dated 1.9.1988. She never challenged this operationalisation of CCF Scheme in her favour after she joined as PGT (English) with the respondents. If she was aggrieved by the operationalisation of CPF Scheme when she joined as PGT with the respondents, she should have agitated then and therein. In view of this, the present OA is barred by limitation. The learned counsel for the respondents stated that the judgments of Supreme Court in case of KVS vs. Jaspal Kaur and ors is fairly attracted in the instance case and the present OA is barred by delay and latches.

7.2 Thirdly, the learned counsel for the respondents averred that the present applicant is barred by principle of estoppel to revert back to GPF-cum-Pension Scheme. . She had opted for CCF Scheme in pursuant with OM dated 1.9.1988. She accepted the operationalization of CPF Scheme after her appointment as PGT (English) 13.12.1993. Till the filing of her representation and subsequent filing of the OA, the applicant had accepted the operationalization CPF Pension Scheme in her favour. The respondents have acted upon her acceptance and prevailing CPF Scheme. In view of this, the applicant is barred by principle of estopple to change her mind as she now wishes to avail the benefit of GPF-cum-Pension Scheme.

8. The learned counsel for the respondents further cited the judgment of Hon’ble Delhi High Court in K.V.S. vs. Manju Sehgal in W.P.(C) No. 7712 /2020 & CM. No. 25440/2020 decided on 12.3.2021. In the said judgment the claim of the petitioners therein rejected to migrate to pension scheme due to want of limitation, paragraph-13 of the same reads as follows:

“13. The present case is squarely covered by the judgment of the Hon’ble Supreme Court in Jaspal Kaur case (supra), which was in the context of KVS teachers like the respondents herein. In the said case also, KVS could not produce the original option form exercised by the employee. However, placing reliance on secondary documents, that clearly establish that the employee was aware that deductions towards CPF subscriptions were being made, the Hon’ble Supreme Court held that such secondary documents clearly establish that the employees had exercised option under CPF scheme and accordingly, set aside the judgment of the CAT and the High Court.

Reliance may also be placed on the judgment of Division Bench of this Hon’ble Court in Delhi Transport Corporation vs. Madhu Bhushan Anand and other connected petitions, 172 (2010) DLT 668 wherein the Court was seized of the similar issue in the context of employees of DTC who wanted to shift from CPF scheme to the GPF-cum-pension scheme. In the said case also, the employees made representations for shifting from CPF to GP cum pension scheme much after they had taken voluntary retirement (VRS) and upon being unsuccessful approached the CAT. Distinguishing the judgment of the Hon’ble Supreme Court in Tarsem Singh case (supra), the Division Bench held that the case of the employees would be barred under the law of limitation as they had received their full dues as per the CPF scheme upon their retirement and if they had any grievance they could have filed legal proceedings within three years of having received their dues. Accordingly, claim of the employees was rejected on the ground of limitation as well as delay and latches. The dicta of the said judgment is squarely applicable in the present case.”

9. Learned counsel for the respondents countered the contention of the learned counsel for the applicant that the benefits of GPF-cum-Pension Scheme has been given to two of the KVS employees particularly Mr. M.S Chauhan, Commissioner of KVS and Shri Isampal, Deputy Commissioner. He further stated that the principle of equality can only be claimed only for lawful activities. The facts and circumstances under which these two persons have been given the benefits of GPF-cum-Pension have not been mentioned by the applicant. He further drew attention of this Tribunal the judgment of Hon’ble Apex Court in Union of India vs. M.K. Sarkar 2010 (2) SCC 59 [LQ/SC/2009/2117] decided on 8.12.2009. Vide this judgment, the Apex Court has clearly delineated the applicability of principle of equality for lawful purposes and in lawful manner. The benefits granted to employees unlawfully cannot be cited to claim such benefits based on the principle of equality. Particularly, the Hon’ble Apex Court has as under:

“26. A claim on the basis of guarantee of equality, by reference to someone similarly placed, is permissible only when the person similarly placed has been lawfully granted a relief and the person claiming relief is also lawfully entitled for the same. On the other hand, where a benefit was illegally or irregularly extended to some'one else, a person who is not extended a similar illegal benefit cannot approach a court for extension of a similar illegal benefit. If such a request is accepted, it would amount to perpetuating the irregularity. When a person is refused a benefit to which he is not entitled, he cannot approach the court and claim that benefit on the ground that someone else has been illegally extended such benefit. If he wants, he can challenge the benefit illegally granted to others. The fact that someone who may not be entitled to the relief has been given relief illegally is not a ground to grant relief to a person who is not entitled to the relief.”

10. I have heard perused the records of the case and heard the arguments advanced by both the counsels. The issues involved in the present case are two folds:

(i). Whether the appointment of the present applicant as PGT (English) vide letter dated 13.12.1993 is considered a fresh appointment.

(ii). Whether the present applicant is automatically covered under the GPF-cum-Pension Scheme in pursuant with the OM dated 1.9.1988, because she joined as PGT (English) based on the afresh selection process as a Direct Recruitee.

(iii). Whether the present Applicant is barred by limitation to agitate, after a gap of 25 years from the date when she would have been automatically covered under the GPF- cum – Pension Scheme, accepting her claim of automatic migration under the coverage of GPF-cum-Pension Scheme.

(iv) Is the applicant is barred by principle of estoppel to agitate against non-granting of the benefits of GPF-cum-Pension Scheme to her by the respondents vide impugned order dated 13.1. 2019.

(v) Whether the applicant is entitled to claim benefits of Pension Scheme based on principle of equality because similar benefits have been granted two employees of KVS.

11. As regards to issue no.1 is concerned, it is admitted by both the parties that the applicant has joined as PGT (English) because of fresh appointment letter dated 13.12.1993 and this appointment letter followed the selection process for the post of PGT as a Direct Recruitee. In view of the facts admitted and the documents brought on records, it is proved that the appointment of the applicant as TGT on 13.12.1993 is a fresh appointment as a Direct Recruitee.

12. As regards to issue no.2 is concerned, because issue no.1 has been decided in favour of the applicant it is automatic that the applicant was to be migrated to the GPF –cum –Pension Scheme w.ef. 14.121993 when she joined as a Direct Recruitee TGT (English) in pursuance with the selection process adopted by the respondents. Hence, this is decided in favour of the applicant.

13. Having decided the first issue No.1 in favour of the applicant, the question arises; Can the benefit of GPF-cum- Pension Scheme be granted to the applicant at the belated stage, 25 years after operationalisation of such deemed migration or coverage under the GPF-cum- Pension Scheme. I am of the considered opinion that the principle of delay and latches operates in the instant case. The applicant got her first salary after 14.12.1993 and since then her salary statement referred to her contribution to CPF Scheme. Moreover, the respondent have considered her selection as a PGT ( English) as continuum from her erstwhile position as a TGT and accordingly, she, as well as the respondents were contributing to the applicant’s CPF accounts. The applicant was getting the CPF details in her monthly salary bills, annual CPF statements as well as Form -16 issued to the applicant every financial year for her Income Tax purposes. If the applicant was aggrieved by such action by the respondents, she should have agitated just after receiving her salary statement for the first month thereafter, i.e. Jan. 1994. In view of this, I accept the contention of the learned counsel for the respondents that the present OA is barred by limitation. The judgment of Hon’ble Apex Court in K.V.S. vs. Jaspal Kaur (supra) case is squarely applicable in the present case.

14. As regards to issue no.4 is concerned, the applicant is also barred by the principle of estoppels to agitate at the belated stage after the gap of 25 years to be covered under the GPF-cumPension Scheme. The applicant accepted her coverage under CPF after her joining as PGT (English) on 14.12.1993 and she accepted this position for next 25 years till 2018. The respondent also acted upon her such acceptance as well as her initial option given to be remained under CCF Scheme in pursuance with OM dated 1.9.1988. In view of this, the applicant is barred by the principle of estopple to turn back and to claim the benefit of GPF Scheme at this belated stage.

15. The fifth issue is whether the applicant can be given the benefit of GPF –cum-Pension Scheme because similar benefits has been given to two employees of KVS, namely, Mr. M.S. Chauhan, Commissioner of KVS and Shri Isampal, Deputy Commissioner of KVS. I agree with the contention of the learned counsel for the respondents that the judgement of Hon’ble Apex Court in Union of India & ors. Vs. M.K. Sarkar is fairly applicable in the instant case. The principle of equality is permissible only when persons similarly placed has been lawfully granted relief and the persons claimed relief is also lawfully entitled the same. The applicant has failed to substantiate that the benefits given by the respondents to two employees of KVS have been lawfully given by the respondents. The facts and circumstances of these two cases have not been brought by the applicant to derive to the conclusion that the benefit of granting of GPF –cum-Pension to two employees are lawful.

16. In view of the above, the present OA is dismissed due to lack of limitation as well as on merits. No order as to the costs.