November 29, 2014 ------------------------- Dear Dr. Dhooper, Thanks for your observations on the issue of automatic come-over from CPF to GPF under the express provisions of the GOI O.M. dated 01.05.1987, which was duly adopted by the DU in May/June, 1987. Apart from the grave errors and omissions which are being committed by the University of Delhi, I wish to draw your kind attention to the following decisions of the Honble Supreme Court and the Allahabad High Court. 1. Krishena Kr. & Anr. vs. Union of India & Ors 1990 AIR 1782 (Supreme Court) 2. Dr. VP Singh & Ors. vs. Executive Council, B.H.U, Varanasi & Anr. Civil Misc. Writ Petition No. 32101 of 2004 (decided on 12.08.2011) - Allahabad High Court 3. Union of India & Anr. vs. SL Verma & Others [Appeal (Civil) 2723 of 2005]. Supreme Courts observations in Krishna Kumars Case: The Supreme Court matter was argued by Sh. Shanti Bhushan on behalf of the petitioners, while Sh. Kapil Sibal argued on behalf of the Union of India. The observations of the Honble apex court are noticeable:- The policy of courts is to stand by precedent and not to disturb settled point. When court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and apply it to all future cases where facts are substantially the same. Morality in general is the art of directing the actions of men in such a way as to produce the greatest possible sum of good. Legislation ought to have precisely the same object. But although these two arts, or rather sciences, have the same end, they differ greatly in extent. All actions, whether public or private, fall under the jurisdiction of morals. It is a guide which leads the individual, as it were, by the hand through all the details of his life, all his relations with his fellows. Legislation cannot do this; and, if it could, it ought not to exercise a continual interference and dictation over the conduct of men. Morality commands each individual to do all that is advantageous to the community, his own personal advantage included. But there are many acts useful to the community which legislation ought not to command. There are also many injurious actions which it ought not to forbid, although morality does so. In a word legislation has the same centre with morals, but it has not the same circumference. The argument of Mr. Shanti Bhushan is that the States obligation towards pension retirees is the same as that towards P.F. retirees. That may be morally so. But that was not the ratio decidendi of Nakara. Legislation has not said so. To say so legally would amount to legislation by enlarging the circumference of the obligation and converting a moral obligation into a legal obligation. Allahabad High Courts observations (2011): The Delhi University was also not given permission by UGC for extension of date of option from CPF Scheme to GPF Scheme. Delhi University was not given any permission by UGC to extend the date. By D.O. letter dated 25.5.1999 addressed to the Registrar, University of Delhi, a copy of which was endorsed to all Central University cut of date for change over from CPF to GPF was informed to be 30.9.1987 and the benefit of retirement liabilities for such employees after cut off date was to be treated as unapproved expenditure. The Delhi University continued with an illegality, against the clarifications issued by the UGC and Ministry of Human Resource Development. Supreme Courts observations in SL Vermas case (2006): ------------------------------------------------------------------------ “……….By reason of the said Office Memorandum dated 1.5.87, 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 30.09.1987. In that view of the matter, respondent Nos. 1 to 13, in view of the legal fiction created, become members of the Pension Scheme. Once they became the members of the Pension Scheme…………………..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……………” . I very humbly submit that the Executive Council of the Delhi University has gone absolutely wrong by not applying its own mind and basing its decision dated 14.08.2014 on an Office Memorandum dated 23.06.2014 (.....got issued subsequent to the Delhi High Court decision dated 30.04.2014), which is based on surmises and conjectures, which may not withstand the scrutiny of law. Apart from the legal aspects, the DU ought to have appreciated that the issue of pension has something to do with morale of its employees; and its taking erroneous stand - against morality as well as law - is deplorable. But, this is what we may expect from persons (without management and/or law background) managing DU at present. And look at the DU counsels, who are stating in various appeals that the Honble Supreme Courts observations in SL Vermas case is obiter and not ratio. Either they have not read the judgments carefully or they are misleading the University for any reason. In my considered view, the whole exercise undertaken by the University of Delhi is to somehow get Courts approval to its own (continuous) glaring errors and omissions on the issue of pension. This is not likely to happen, I firmly believe............!! The precedence set by the Honble Supreme Court in SL Vermas case in the background of the Krishena Kumars well argued case is the law of the land (i.e., Ratio) on the issue of pension...............!!! Prof. Amar Nath Gupta M.,LL.B.,FCS Senior Faculty (Commerce)
Posted on: Sat, 29 Nov 2014 10:33:31 +0000
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