Kendriya Vidyalaya Sangathan and others v. Lovely Thomas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 7TH DAY OF SEPTEMBER 2012/16TH BHADRA 1934** **OP (CAT).No. 956 of 2012 (Z)** **---------------------------IN OA.297/2011 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER(S):** **-------------** **1. KENDRIYA VIDYALAYA SANGATHAN, AGED 47 YEARS, 18, INSTITUTIONAL AREA, SHAHEED JEET SINGH MARG, NEW DELHI-110 016, THROUGH ITS JOINT COMMISSIONER.** ## **2. THE COMMISSIONER,** **KENDRIYA VIDYALAYA SANGATHAN,18, INSTITUTIONAL AREA, SHAHEED JEET SINGH MARG, NEW DELHI-110 016.** **3. THE REGIONAL GRIEVANCE OFFICER, KENDRIYA VIDYALAYA SANGATHAN, REGIONAL OFFICE, IIT CAMPUS, CHENNAI-600 036.** ## **4. THE PRINCIPAL,** **KENDRIYA VIDYALAYA NO.2, NAVAL BASE, COCHIN-682 004.** **BY ADV. SRI.V.V.ASOKAN** ## **RESPONDENT(S):** **--------------------** **LOVELY THOMAS, W/O.K.K.THOMAS, PRIMARY TEACHER, KENDRIYA VIDYALAYA NO.2, NAVAL BASE, COCHIN-682 004, “KODILIL”, KALAMPOOR, PIRAVOM ERNAKULAM-686 664.** **BY ADV. SRI.O.V. RADHAKRISHNAN (SR.) BY ADV. SRI.SAJI KURIACHAN** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 07-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **LSN** **OP (CAT).No. 956 of 2012 (Z)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** - **EXHIBIT P1TRUE COPY OF OA 297/2011 ALONG WITHOUT ANNEXURES DATED 30.1.2011.** - **EXHIBIT P2TRUE COPY OF THE REPLY STATEMENT FILED IN OA NO.297/2011 WITHOUT ANNEXURES DATED 21.7.2011.** - **EXHIBIT P3TRUE COPY OF THE REJOINDER FILED BY THE RESPONDENT WITHOUT ANNEXURERS DATED 1.8.2011.** - **EXHIBIT P4TRUE COPY OF THE ORDER OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN OA NO.297/2011 DATED 30.11.2011.** ## **RESPONDENTS' EXHIBITS** **EXT. R1(a): COPY OF THE JUDGEMENT DATED 06-06-2007 IN CIVIL APPEAL NO. 2876 OF 2007 DOWN LOADED FROM THE OFFICIAL WEB-SITE OF THE HON'BLE SUPREME COURT OF INDIA IN RESPECT OF DR.OMANA MAMMEN.** **//TRUE COPY//** **P.A. TO JUDGE** **LSN** ## **MANJULA CHELLUR (Ag.CJ) & A.M.SHAFFIQUE, J.** **= = = = = = = = = = = = = = = = O.P.(CAT) No.956 of 2012** **= = = = = = = = = = = = = = = = = = = = = Dated this the 7th day of September, 2012** ## **JUDGMENT** ## **Manjula Chellur, Ag.CJ** We heard the learned counsel appearing for the petitioner and Mr.O.V.Radhakrishnan, the learned Senior counsel appearing for the party-respondent. Apparently the respondentapplicant who initially got appointment as a primary teacher in Kendriya Vidyalaya started working at Guwahati in 1984. It is not in dispute that she was transferred to Kerala Kendriya Vidyalaya in 8.02.1991. Later, as on the date of filing the application, she was working at Kendriya Vidyalaya No.2, Naval Base, Cochin. It is also not in dispute that during 1988 she fell ill and for a long period she was on medical leave. At the relevant point of time, that is 1987-1988, Annexure A2 came to be introduced as a beneficial change so far as the Central Government employees by order dated 01.05.1987. This was **O.P.(CAT) No.956 of 2012** **2** admittedly on the recommendation of 4[th] Central Pay Commission that all CPF beneficiaries in service as on 01.01.1986 should be deemed to have come over to the pension scheme on the date, unless they specifically opt out to continue under the CPF Scheme. This was a general office memorandum so far as Central Government employees are concerned. Annexure A3 dated 01.09.1988 brought into network of the benefit under A2 by virtue of Annexure A3 even the employees of Kendriya Vidyalaya Sangathan ie. from Contributory Provident Fund to Pension Scheme. The relevant clause 3 and 3.2 which reads as under:- “3. All C.P.F beneficiaries, who were in service on 01.01.1986 and who are still in service on the date of issue of these orders will be deemed to have come over to the Pension Scheme. 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/Principal by 3.1.1989, in duplicate, in the form enclosed (one form may be sent to this office while the other kept with personal records of the employee concerned) if the employee wish to continue under the CPF Scheme. If no **O.P.(CAT) No.956 of 2012** **3** option is received by the Head of Office/Principal by the above date be deemed to have come over the Pension Scheme. The Head of the Office/Principals are to forward in one lot options exercised by employees for retention of CPF Scheme received by them, to reach Sangathan's Office latest by 28.02.1989. Where no option to continue under the CPF Scheme is received by them from any, a nil report be sent by due date viz. 28.02.1989” 2. As observed by the learned member of the Tribunal, the application on this Annexure A3 to a particular employee would automatically applied unless the employee within the time prescribed gives in writing declaring her desire to continue in the earlier Central Contributory Pension Scheme ie. CPF Scheme. Apparently, we do not find any material in writing pertaining to the respondent-applicant as contemplated under Clause 3.2 of A3. This is not a case where the petitioners contend that such application was given, but misplaced by them. It is not open to contend also because Clause 3.2 contemplates receiving such option in duplicate one has to be kept in the office and another has to be sent to the office concerned. The only material the petitioner banking upon is not raising objection by the **O.P.(CAT) No.956 of 2012** **4** respondent-applicant when certain amounts from the salary were deducted towards CPF Scheme for about six months. The explanation given by the respondent-applicant is immediately on noticing wrong deductions made from her salary. It was brought to the notice of the authorities for rectification. But they were not received the pay roll and service book indicating the pay roll etc. Therefore, they would rectify the same once they receive the records. The question would be whether there is provision for presumption when such option was given by respondent-applicant in any other manner than what is prescribed Clause 3.2 of Annexure 3. Admittedly, when once there is a direction to exercise upon in a particular way contemplated under Annexure A3, it has to be exercised by the employees in such manner only. There is a clear direction, how such excess option has to be exercised and within what time it has to be exercised and what happens if it is not exercised within the prescribed time. In that view of the matter, we cannot accept the contention of the petitioner that there can be a presumption that such option was given by the applicant as she kept quiet for six months when CPF contributions were deducted from the salary. Even if CPF **O.P.(CAT) No.956 of 2012** **5** contributions were deducted to the knowledge of the applicant, will it amount to an option being exercised in accordance with Clause 3.2? The answer would be no. Subsequent to 28.02.1989 if any one to exercise such option it cannot be extended to them as there is a cut off date to exercise such option. In that view of the matter, we are of the opinion that Tribunal was justified in saying that there is no material placed on record by the petitioner herein to substantiate their defence that such option was exercised in accordance with clause 3.2 of A3 by the respondentapplicant and therefore she was not entitled for the reliefs sought by her in her application. Then the learned counsel for the petitioner relies on the decision in **K.V.S. vs. Jaspal Kaur** (AIR 2007 SC 2023). The facts are entirely different in the present case. There was an admission exercising the option by the employees in the said case. Here there is categorical denial of exercising such option by the applicant and the petitionerauthorities are not in a position either to produce office copy of such option or the original sent to the department through the school she was working at the relevant point of time. It had to be on or before 28.02.1989 and apparently she was on medical leave **6** ## **O.P.(CAT) No.956 of 2012** during that time. Viewed from any angle, we are unable to accept the contentions raised by the petitioner. This petition is accordingly dismissed. **MANJULA CHELLUR, ACTING CHIEF JUSTICE** ## **A.M.SHAFFIQUE, JUDGE.** sj10/9