1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.       712-713                      OF  2015 (Arising out of SLP(C) Nos.3106-3107 of 2012)

T.M. Sampath & Ors.                             … Appellants

:VERSUS:

Secretary, Ministry of Water Resources & Ors.   … Respondents

WITH

CIVIL APPEAL NOS.        714-715                    OF  2015 (Arising out of SLP(C) Nos.20425-20426 of 2011)

S.C. Awasthi & Ors.                        … Appellants :Versus:

Union of India & Ors.          … Respondents        AND

CIVIL APPEAL NO.    716           OF  2015 (Arising out of SLP(C) No.19102 of 2012)

P.N. Mishra                        … Appellants :Versus:

Union of India & Ors.          … Respondents AND

WRIT PETITION (CIVIL) NO. 556 OF 2012

All India Navodaya Vidyalaya   Staff Association and Ors. .…Petitioners

:Versus:

Union of India & Ors.         … Respondents

  AND

2 WRIT PETITION (CIVIL) NO. 518 OF 2012

S. Kannan and Ors. .…Petitioners :Versus:

Union of India & Ors.        … Respondents

J U D G M E N T

Pinaki Chandra Ghose, J.

1. Leave granted in all the SLPs.

CIVIL APPEALS @ SLP(C) NOS.3106-3107 of 2012 AND SLP(C)  NOS.20425-20426 of 2011)

2. These appeals, by special leave, have been filed against the  

judgment and order dated 06.01.2011 passed by the High Court of  

Delhi at New Delhi in Writ Petition (Civil) No.3197 of 2010 and order  

dated 18.03.2011 in Review Petition No.90/2011, by which the High  

Court  set  aside  the  Order  dated  08.02.2010  passed  by  Central  

Administrative Tribunal in Original Application No.2037 of 2008 filed  

by the appellants herein.

3. The  facts  of  these  appeals  are  briefly  stated  hereinafter.  

Appellants herein are the employees of National Water Development

3 Agency (“NWDA”) which was established as a Society in July 1982  

and was registered under the Societies Registration Act, 1860. The  

Society  NWDA,  which  falls  under  the  aegis  and  control,  both  

administrative and financial,  of the Ministry of  Water Resources, is  

fully  funded  by  the  Government  of  India,  headed  by  the  Union  

Minister  for  Water  Resources  as  the President.  The NWDA framed  

Rules  and  Regulations  for  its  smooth  functioning.  Whatever  

emoluments have been prescribed for the Government servants by  

the Central Government Office Memorandum (“O.M.”, for short) the  

same apply mutatis mutandis to the employees of NWDA. By-law 28  

of  the NWDA also mandates that the rules and orders applicable to  

the Central Government employees shall apply mutatis mutandis to  

the employees of the NWDA subject to modification by the Governing  

Body concerning service conditions and only in case of any doubt, the  

matter has to be referred to the Governing Body for a decision. Bye-

law 26(a) provides for the emoluments structure for all  employees  

that  will  be  adopted  by  NWDA,  with  the  approval  of  Ministry  of  

Finance (Department of Expenditure).  Bye-law 28 provides that till  

such time the NWDA frames its rules governing service conditions of  

the employees, rules and orders applicable to Central Government  

Employees  shall  apply  mutatis  mutandis,  subject  to  such  

modifications as made by NWDA from time to time.

4. As  per  the  appellants,  NWDA  had  implemented  all  the  

recommendations  of  the  Fourth  Central  Pay  Commission  from

4 22.10.1986.  The pay scales of the employees of NWDA were revised  

as made applicable to Central Government employees. Pursuant to  

the recommendation of  the Fourth Central  Pay Commission,  Office  

Memorandum  dated  01-05-1987  was  issued  by  the   Ministry  of  

Personnel,  Public  Grievance  and  Pension,  Department  of  Pensions  

and  Pensioners’  Welfare,  for  switch-over  of  employees  from  

Contributory  Provident  Scheme  to  Pension  Scheme,  according  to  

which  all  Contributory  Provident  Fund  (CPF)  Scheme beneficiaries,  

who were in service of the Central Government on 1.1.1986, were  

deemed  to  have  come  over  to  the  Pension  Scheme  unless  they  

specifically opted out to continue under CPF Scheme. This Pension  

Scheme was formulated by the Government under the 1972 Pension  

Rules. The Office Memorandum dated 01-05-1987 reads as under:

“Change-over of employees from Contributory Provident  fund Scheme to Pension Scheme (G.I.,  Dept.  of  Pensions  &  Pensioners  Welfare,  O.M.  No.4/1/87-P.I.C.I., dated the 1st May, 1987.)

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 option  was  given in the Department of Personnel and Training O.M.  No.      F.3  (1)-Pension  Unit/85,  dated 6th  June,  1985.  However,  some  Central  Government  employees  still  continue under the CPF Scheme. The Fourth Central pay  Commission has recommended that 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.

5 2. After careful  consideration,  it  has been decided that  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.  

3.2  The employees of the category mentioned above will,  however,  have  as  option  to  continue  under  the  CPF  Scheme,  if  they  so  desire.  The  option  will  have  to  be  exercised  and  conveyed  to  the  Head  of  Office  by  30.09.1987, in the form enclosed if the employees wish  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.  

3.3  The  CPF  beneficiaries,  who  were  in  service  on  1st  January, 1986, but have since retired and in whose case  retirement benefits have also been paid under the CPF  Scheme,  will  have  an  option  to  have  their  retirement  benefits calculated under the Pension Scheme provided  they  refund  to  the  government,  the  Government  contribution to the Contributory Provident Fund and the  interest thereon, drawn by them at the time of settlement  of the CPF Account. Such option shall be exercised latest  by 30.9.1987.

3.4   In the case of CPF beneficiaries, who were in service  on 1.1.1986, but have been since retired, and in whose  case the CPF Account has not already been paid, will be  allowed  retirement  benefits  as  if  they  were  borne  on  pensionable establishments unless benefits settled under  the CPF Scheme.

3.5   In the case of CPF beneficiaries, who were in service  on 1.1.1986, but have since died either before retirement  or after retirement, the case will be settled in accordance  with para 3.3 or 3.4 above, as the case may be. Options  in such cases will be exercised latest by 30.9.1987,  by  the widow/widower and in the absence of widow/widower  by the eldest surviving member of the family who would  have otherwise been eligible to family pension under the  Family Pension Scheme if such scheme were applicable.

6 3.6  The option once exercised shall be final.

3.7  In the types of cases covered by paragraphs 3.3 and  3.5 involving refund of Government’s contribution to the  contributory  provident fund together with interest drawn  at  the  time of  retirement,  the  amount  will  have to  be  refunded  latest  by  the  30th September,  1987.  If  the  amount is not refunded by the said date, simple interest  thereon will be payable at 10% per annum for period of  delay beyond 30.9.1987.  

4.1  In the case of employees who are deemed to come  over or who opt to come over to the Pension Scheme in  terms of paragraphs 3.3, 3.4 and 3.5, the retirement and  death benefits will be regulated in the same manner as in  case  of  temporary/  quasi-permanent  or  permanent  Government  servants,  as  the  case  may  be,  borne  on  pensionable establishment.  

4.2   In  the  case  of  employees  referred  to  above,  who  come over or are deemed to come over to the Pension  Scheme,  the  government’s  contribution  to  the  CPF  Account  of  the  employees  will  be  resumed  by  the  government.  The employee’s contribution together with  the interest thereon at his  credit in the CPF Account will  be transferred to the CPF Account to be allotted to him on  his coming over to the Pension Scheme.  

4.3 Action to discontinue subscriptions/ contributions to  CPF  Account  may  be  taken  only  after  the  last  date  specified for exercise of option, viz. 30.9.1987.

5.   A proposal  to grant ex gratia payment to the  CPF  beneficiaries,  who retired prior  to 1.1.1986,  and to the  families of CPF beneficiaries who died prior to 1.1.1986,  on  the  basis  of  the  recommendations  of  the  Fourth  Central  Pay  Commission  is  separately  under  consideration  of  the  Government.  The  said  ex  gratia  payment, if and when sanctioned, will not be admissible  to the employees or their  families who opt to continue  under the CPF Scheme from 1.1.1986 onward. (See Order  (4) in this Appendix)

6.1  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.  In  the  case  of  other  contributory

7 provident funds, such as Special Railway Provident Fund  or  Indian Ordinance Factory Workers Provident  Fund or  Indian  Naval  Dockyard  Workers  Provident  Fund,  etc.  necessary  orders  will  be  issued  by  the  respective  administrative authorities.  

6.2  These orders do not apply to Central  Government  employees  who,  on  re-employment  are  allowed  to  subscribe to Contributory  Provident  Fund.  These orders  also  do  not  apply  to  Central  Government  employees  appointed on contract basis where the contribution to the  Contributory  Provident  Fund is  regulated in  accordance  with the terms of contract.

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  such  other  Scientific  Department  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)

7.1  Ministry  of  Agriculture,  etc.  are  requested to  bring  these  orders  to  the  notice  of  CPF  beneficiaries  under  them, including those who have retired since 1.1.1986,  and to the families  covered by paragraph 3.5 of  these  orders.    7.2  Administrative  Ministries  administering  any  of  the  Contributory  Provident  Fund  Rules,  other  than  Contributory Provident Fund Rules (India) 1962, are also  advised  to  issue  similar  orders  in  respect  of  CPF  beneficiaries covered by those rules in consultation with  the Department of Pension and Pensioners’ Welfare.

8.   These  orders  issue  with  the  concurrence  of  the  Ministry of Finance, Department of Expenditure, vide their  U.O. No.2038/IS (Pres)/97, dated 13.4.1987.”

The above switch-over was applicable to all the Central Government  

employees who were subscribing to the Contributory Provident Fund  

under  the  Contributory  Provident  Fund Rules,  1962.   As  stated in

8 paragraph 7.2 of the said O.M., this switch-over was not applicable  

ipso  facto to  autonomous  bodies  under  the  Ministries  of  Central  

Government who were subscribing to any other scheme other than  

CPF Rules 1962, and therefore, it directed the administrative bodies  

to  issue  similar  orders  for  CPF  beneficiaries,  in  consultation  with  

Department of Pensions and Pensioners’ Welfare. Subsequently the  

employees of NWDA made representations to NWDA and Ministry of  

Water Resources in view of the directions in the O.M., pursuant to  

which  the  Ministry  of  Water  Resources  sought  advice  from  the  

Ministry  of  Finance  (Department  of  Expenditure).  The  Finance  

Ministry vide its letter dated 16.03.2000, advised autonomous bodies  

to continue to follow the CPF Scheme or work out an annuity scheme.  

Under paragraph 3 of  the said letter it  stated that introduction  of  

pension  scheme  on  Government  of  India  pattern  should  not  be  

agreed as a rule, and any exception in this regard would be referred  

to the Department. The Governing Body of NWDA in its 3rd meeting  

held on 31.3.1983 approved introduction  of  Contributory  Provident  

Fund scheme for the employees of NWDA on the lines of Contributory  

Provident Fund Rules (India), 1962, as was clear in the appointment  

orders and CPF settlement cases of deceased employees of NWDA  

issued belatedly on 19/09/2007 and 23/12/2009. The NWDA did not  

make any distinct CPF rules. As stated by the respondents,  in the  

year  1982  NWDA  had  framed  contributory  Provident  Fund  Rules,  

which  were  duly  approved  by  the  Governing  Body  of  NWDA.   It

9 rejected  the  proposal  for  introduction  of  Pension-cum-  GPF-DCRG  

Scheme in NWDA. The appellants sought Right to Information (“RTI”)  

on 18.7.2000 whereupon the decision of  Ministry of Finance dated  

16.3.2000  and  the  decision  taken  by  the  Governing  Body  on  

30.3.2000 that the implementation of the O.M. was rejected by the  

Governing body, was appraised to them.  

5. The appellants filed O.A. No.2037 of 2008 before the Central  

Administrative Tribunal assailing the decision of the Governing Body  

dated  30.03.2000  rejecting  their  request  to  switch-over  to  the  

Pension Scheme and letter dated 16.3.2000 issued by the Finance  

Ministry whereby the request of the appellants to switch-over to the  

Pension  Scheme  pursuant  to  the  O.M.  dated  1.5.1987,  had  been  

turned down.  

6.   Before  the  Central  Administrative  Tribunal  (hereinafter  

referred to as “the Tribunal”), when the case came up for hearing,  

the  respondents  took  a  preliminary  objection  as  to  the  cause  of  

action being barred by limitation on the ground that though the O.M.  

is dated 01.05.1987, yet few members were associated in the 30th  

meeting of the Governing Body having knowledge of the resolution  

passed  by  the  respondents  on  30.03.2000  and  that  they  cannot

10 resort to a cause of action on the basis of RTI after 8 years, to file the  

above  OA.  The  Tribunal  overruled  the  objection  raised  by  the  

respondents and after referring to various authorities, observed that  

fundamental  right  of  grant  of  pension  does  not  attract  limitation.  

Moreover, on inaction the Government is precluded from raising the  

hyper technical plea to defeat the rightful  claim of applicants. The  

order passed in 2000 was reiterated to the applicants in 2007 thus  

the case of  the applicants was good on merits.  The Tribunal  after  

referring to the O.M., the bye-laws 26(a) & 28 and the decision of this  

Court in  Union of India v. S.L.Verma, (2006) 14 SCALE 56, held that  

there was nothing in the language of clause 6.1 of the O.M. dated  

01.05.1987,  to  suggest  that  the  said  O.M.  does  not  apply  to  the  

employees of autonomous bodies controlled by Central Government  

and the said view finds no support from clause 7.2 of the O.M.  The  

advice dated 16.03.2000  of the Ministry of Finance to the Ministry of  

Water Resources, at best, can be treated as an executive  order and  

as the same does  not have retrospective effect, it has no application  

to overrule the O.M. The Tribunal further held that the NWDA/Ministry  

of  Water  Resources  committed  an  error  in  seeking  advice  from  

Ministry  of  Finance  regarding  implementation  of  the  O.M.  for  the  

reason  that  bye-law  26(a)  provides  that  no  approval  of  Central  

Government is required to adopt scales of pay or allowances identical  

to  those  adopted  for  corresponding  posts  as  per  order  issued  by  

Central Government. As per bye-law 28, since no rules were framed

11 by NWDA regarding switch-over of its employees, the O.M. squarely  

applied to NWDA employees and the question of applicability of the  

O.M. to the employees of the autonomous bodies is no longer res  

integra by the decision of  the Supreme Court in  Union of  India v.   

S.L.Verma (supra).  Accordingly,  the  Tribunal  vide  its  order  dated  

08.02.2010, set aside the orders dated 16.03.2000 and 30.03.2000  

impugned before it, allowed the O.A. No.2037 of 2008 and directed  

the respondents to implement O.M. dated 01.05.1987 and treat the  

employees of NWDA as covered under Pension Scheme in terms of  

Central Civil Services (Pension) Rules, 1972  (“CCS Pension Rules”,  

for short) w.e.f.  01.01.1986 with all benefits.   

7. Aggrieved by the decision of the Tribunal, the respondents filed  

writ  petition  under  Article  226  and  227  of  Constitution  of  India,  

challenging  the  order  08.02.2010  passed  by  the  Tribunal.  The  

respondents  did  not  urge  the  issue  of  limitation  before  the  High  

Court.   The  question  that  arose  for  consideration  before  the  High  

Court was as to the applicability of the O.M. dated 01.05.1987 to the  

employees  of  NWDA and whether  reliance placed  by  the  Tribunal  

upon the decision in  S.L. Verma’s case was correct. The High Court  

after  referring  to  clauses  6.1  and  7.2  of  the  O.M.,  held  that  the  

employees  of  NWDA  are  not  “Civilian  Central  Government  

employees”  as  NWDA  is  an  autonomous  body  working  under

12 administrative  control  of  the  Ministry  of  Water  Resources;   the  

employees of NWDA are governed by National Water Development  

Agency Contributory Fund Rules, 1982 and not Contributory Provident  

Fund (India)  Rules 1962,  and in that view of  the matter,  they are  

covered under third situation envisaged under clause 7.2 of the O.M.  

dated 01.05.1987 and not under the two situations under clause 6.1  

and clause 7.2 thereof.  The High Court was of the opinion that the  

Ministry  of  Water  Resources  ideally  should  have  consulted  the  

Department  of  Pensions  and  Pensioners’   Welfare  for  issuance  of  

similar  orders  as O.M. dated 01.05.1987.  However,  the Ministry  of  

Water Resources consulted the Department of Expenditure, Ministry  

of  Finance in  respect of  the said matter  instead of  consulting the  

Department  of  Pensions  and  Pensioner’s  Welfare.  As  regards  the  

reason given by the Tribunal on by-law 28 of the NWDA is concerned,  

the High Court opined that a bare reading of the provision makes it  

clear  that  rules  and  orders  applicable  to  the  Central  Government  

employees shall apply  mutatis mutandis  to the employees of NWDA  

only  in  cases  where  NWDA  has  not  framed  its  own  rules  and  

regulations. NWDA had framed its own CPF Rules in 1982 and thus,  

by-law  28  has  no  role  to  play  in  the  instant  case.  On  careful  

comparison of facts of S.L. Verma case with the facts of the case at  

hand,  the  High  Court  observed  that  there  are  two  material  facts  

which entirely  distinguish S.L.  Verma case from the case at hand.  

First being that the O.M. dated 01.05.1987 was fully applicable to the

13 employees in the S.L. Verma case while this is disputed in the present  

case. The second fact being that the S.L. Verma case proceeds on the  

premise that the recommendation of Fourth Central Pay Commission  

pertaining  to  switching-over  of  the  employees   from  Contributory  

Provident Scheme to Pension Scheme  was accepted by the employer  

in that case. However, in the present case, it was specifically pleaded  

by the appellants that the said recommendations of Fourth Central  

Pay Commission were not accepted by the Governing Body of NWDA.  

8. Learned  counsel  for  the  appellants  claimed  that  O.M.  dated  

01.05.1987 was scrutinized by the Supreme Court in the case of S.L.  

Verma  (supra) and the present case is fully covered by the ratio of  

said case. NWDA has not framed CPF Rules in 1982. There was no  

reason for not placing on record the CPF Rules 1982 as approved by  

the  Governing  Body  before  the  Courts  along  with  their  pleadings.  

Only at final stage they were included. NWDA has not brought the  

said Rules to the knowledge of the appellants. The Rules have not  

been approved by the Governing body and are not in operation. The  

specific case of Respondent T.M. Sampath in review petition was that  

the Respondents had not framed any CPF Rules 1982. No copy of the  

said  Rules  was  ever  provided.  As  evident  from  the  appointment  

letters,  at  least  100  appointments  on  record  proved  that  the  

petitioners were governed by the CPF Rues of 1962. It was clearly

14 mentioned under item 6 that they would be compulsorily required to  

contribute to the CPF Rules 1962. These appointments were made  

after the decision taken by the Governing Body on 31.3.1983. If the  

NWDA Rules, 1982 were in operation, there was no reason for the  

respondent authority not to mention in the offer of appointments that  

the employees would be governed by NWDA Rules, 1982.  All orders  

of  Government of  India in respect of  1962 Rules were adopted by  

NWDA from time to time. Under the bye-laws, the Governing Body is  

empowered to make and amend any rules of NWDA. But no separate  

CPF Rules,  1982 have ever been put  up in  prescribed format like  

those  of  medical  attendance,  earned  leave  and  recruitment  rules  

except introduction of CPF Scheme on lines of CPF Rules, 1962. Going  

by the above facts the employees should get all the benefits which  

Central Government Civilian Employees are entitled to. Under bye-

law 28, only in case of doubt the matter is referred to Governing Body  

for a decision, there is no provision to switchover or application of  

Pension Rules as envisaged through O.M. Thus when there was no  

working Rules and Regulation as to conversion from CPF to Pension  

Scheme the order by the Pension Department passed on 01.05.1987  

would be applicable. The petitioners are covered under clause 6.1 of  

O.M. read in conjunction with clause 7.2 and in view of bye-law 28 the  

O.M.  will  be  applicable  mutatis  mutandis.  NWDA  had  also  not  

circulated  the  O.M.  amongst  the  employees.  Thus  they  never

15 submitted their option for switch over. Accordingly they are deemed  

to have opted by implication of not giving option.

9. The Respondent acted in mala fide in implementing the second  

O.M.  for  introduction  of  Death-cum-Retirement  Gratuity  Scheme  

which  was  meant  for  Civilian  Central  government  employees  who  

wanted to continue under CPF Rules 1962. It is submitted that six to  

seven employees who were in a position to implement all the order  

had been absorbed by taking pro-rata pension. The O.M. was equally  

applicable o Autonomous bodies. The Government had failed to show  

that  it  had  refused  to  finance  Autonomous  bodies.  It  had  acted  

arbitrarily  by  rejecting  the  claim  of  Petitioners.  The  petitioner’s  

Fundamental Rights under Article 14 and 16 had been violated by not  

treating  them  at  par  with  their  similar  counterparts  in  Central  

Government, when the NWDA falls within the meaning of “State” as  

defined in Article 12 of Constitution. The petitioners were in regular  

service of Respondents after confirmation and thus they are entitled  

to  protection  under  Article  311 of  Constitution.   The  Respondents  

have  acted  wrongly  by  the  fact  that  NWDA  implemented  all  

recommendations  of  4th Central  Pay  Commission  except  the  

changeover of CPF beneficiaries to Pension scheme, as all top officers  

who were responsible for implementing were on deputation and were  

already covered under the Pension Scheme.

16

10. The Respondents have not pursued the change-over of CPF to  

Pension Scheme in a proper way. NWDA had never informed either  

the Governing Body or Ministry of Finance that they are obligated to  

bring in effect the change-over. Their contention that they placed the  

issue  on  30.3.2000  is  per  say  illegal  and  arbitrary.  The  letter  of  

Department of Expenditure of 16.03.2000 only provided advice that  

introduction  to  autonomous  organization  should  not  be  made  in  

routine way. The Governing Body of NWDA is bound by legal fictions  

for  providing  pension  scheme.  The  legal  fictions  are  created  by  

reason  of  O.M.  of  01.05.1987,  acceptance  of  4th CPC  

recommendations,  bye-law 28  and  sub  rule  (6)(iv)  of  Rule  209 of  

General  Financial  Rules  that  service  conditions  of  autonomous  

organization  receiving more than 50% of  recurring expenditure by  

way of grant in  aid from Central Government should be treated at  

par  with  their  counterparts  in  Central  Government.  In  view of  the  

decision in Sudhir vs. TISCO (1984) UJ SC 986, any rule which places  

absolute discretion of an administrative authority the power to grant  

or refuse pension or gratuity is arbitrary and violative of Article 14.  

The petitioners  are performing duties in the interest of  State,  and  

they should be provided conditions and benefits of service in view of  

the Court  in  Accountant  General  vs.  Bakshi  A (1962)  SC 505.  The

17 denial of retrial benefits is denial of livelihood after superannuation  

which is violative of Article 21.   

11. The Respondents submitted that the same is wrong and that  

there are two material facts which entirely distinguish S.L. Verma’s  

case from the present case. They dismissed the contention stating  

the  same  to  be  wrong  and  submitted  that  the  organization  had  

framed its own CPF Rules, 1982 which were duly approved by the  

NWDA Governing Body in its meeting held on 31.03.1983. The CPF  

rules  were  made  effective  retrospectively  from  15.07.1982.  The  

Respondents submitted that when the CPF Rules 1982 were framed  

on the lines of the 1962 Rules, then mere mentioning of the wrong  

year doesn’t confer any constitutional right that the employees would  

be governed by CPF Rules 1962.  It  is  also noteworthy that NWDA  

came into  existence in  1982.  Posts  in  different  grades  were filled  

either by direct recruitment or by deputation. For this reason, even  

after  NWDA  CPF  Rules  were  formulated,  orders  were  issued  

mentioning compulsory contribution to CPF under CPF Rules 1962.  

Rule 10(2) of NWDA CPF Rules, 1982 says that contribution shall be a  

percentage of the subscriber’s contribution or may be prescribed by  

Government. Rule 11 provides that the agency will  pay interest at  

such rate as the Central Government prescribes on subscriptions to  

CPF. It is submitted that all orders of Central Government were not

18 automatically  made  applicable  to  employees  of  NWDA.  After  

acceptance of 4th pay recommendations the OM was issued extending  

benefits  to  employees  governed  by  CPF  Scheme.  As  NWDA  was  

following its own CPF Rules, the benefits were extended by framing  

its own Rules in consultation with nodal ministry. These rules were  

approved by Governing Body in the 21st meeting. Since the rules and  

regulation governing service conditions had been framed by NWDA,  

bye-law 28 has no application.

12. As  NWDA  is  a  temporary  organization  all  officer  are  also  

temporary  employees.  No  employees  have  been  declared  as  

permanent.  The service rendered in NWDA by its employees is non-

pensionable.  The  establishment  expenditure  of  NWDA  and  for  

implementing  the  mandate  of  NWDA,  grant-in  aid  is  provided  by  

Government.  Without  any specific  approval  of  Ministry  of  Finance,  

Department of Pension and Pensioner’s Welfare and Ministry of Water  

Resources the NWDA cannot introduce the pension scheme on lines  

of CCS Pension Rules. The petitioners have misled the Court that the  

Government orders are adopted by the Respondent where rules are  

not framed. The petitioners are covered under clause 7.2 in view of  

the O.M., it was examined by Department of Pension and Pensioners  

Welfare and Ministry of Finance. Both after examining the proposal  

did not agree to the contention of the petitioners. The allegation, that

19 NWDA  had  intentionally  not  circulated  the  O.M.  is  wrong.  The  

changeover  to  Pension  Scheme was  not  automatic  as  NWDA was  

following  its  own  CPF  Rules,  1982.  The  rules  and  regulations  in  

different autonomous bodies are different so the petitioners cannot  

be  equated at  par  with  their  counterparts  working  in  Government  

Departments and Autonomous Bodies as contended in Union of India  

vs. Dr. Jai Dev Wig and Ors.

13. Based on the provisions in O.M. proposal for framing of DCRG  

Rules  for  employees  of  NWDA  was  processed  by  the  officers  on  

deputation  from  pensionable  departments  with  help  from  

officers/employees.  The  officer  and  employees  were  fully  involved  

and they cannot claim that they were totally ignorant of the orders.  

The changeover of employees cannot be suo-motto made applicable  

for NWDA employees. The petitioners have failed to prove arbitrary  

action of the respondents and hence Sudhir vs. TISCO, (1984) UJ SC  

986, and  Accountant General vs. Bakshi, AIR 1962 SC 505, has no  

application. In view of the law laid down in  Steel Authority of India  

Ltd. vs. Dibeyendu Bhattacharya (2011) 2 SLR 243, petitioners have  

no cause of action.    

14. In  light  of  the facts  and circumstances of  this  case and the  

submissions made by the learned counsel on both sides, it can be

20 concluded that NWDA had framed its regulation the CPF Rules, 1982  

and they were duly approved by the Governing Body of NWDA. As  

NWDA is an autonomous body under the Ministry of Water Resources,  

it has framed it own bye-laws governing the employees. It has been  

time and again reiterated that the Court must adopt an attitude of  

total  non-interference  or  minimal  interference  in  the  matter  of  

interpretation  of  Rules  framed  by  autonomous  institutions.  In  

Chairman & MD, Kerala SRTC vs. K.O. Varghese and Others, (2007) 8  

SCC 231, this Court held:  

“KSRTC is  an  autonomous  corporation  established under  the Road Transport Corporation Act, 1950. It can regulate  the  service  of  its  employees  by  making  appropriate  regulations it that behalf. The High Court is not correct in  thinking  that  there  is  any  compulsion  on  KSRTC on  the  mere adoption of Part III  of KSR to automatically give all  enhancements in pension and other benefits given by the  State Government to its employees.”  

Thus, as the appellants are governed by the CPF Rules1982, the O.M.  

applicable  to  Central  Government  employees  is  not  applicable  to  

them.  

15.  On the issue of parity between the employees of NWDA and  

Central Government employees, even if it is assumed that the 1982  

Rules did not exist or were not applicable on the date of the O.M. i.e.

21 01.05.1987, the relevant date of parity, the principle of parity cannot  

be applicable to the employees of NWDA. NWDA cannot be treated as  

an instrumentality of the State under Article 12 of the Constitution  

merely  on  the  basis  that  its  funds  are  granted  by  the  Central  

Government.  In Zee Telefilms Ltd. & Another v. Union of India & Ors.,  

(2005)  4 SCC 649, it  was held by this Court that the autonomous  

bodies having some nexus with the Government by itself would not  

bring them within the sweep of the expression ‘State’ and each case  

must  be  determined  on  its  own  merits.  Thus,  the  plea  of  the  

employees of NWDA to be treated at par with their counterparts in  

Central Government under sub rule (6)(iv) of Rule 2009 of General  

Financial Rules, merely on the basis of funding is not applicable.

16. Even if it is presumed that NWDA is “State” under Article 12 of  

the Constitution, the appellants have failed to prove that they are at  

par with their counterparts, with whom they claim parity. As held by  

this Court in Union Territory, Chandigarh v. Krishan Bhandari, (1996)  

11  SCC 348,  the  claim to  equality  can be claimed when there  is  

discrimination by the State between two persons who are similarly  

situated. The said discrimination cannot be invoked in cases where  

discrimination sought to be shown is between acts of two different  

authorities functioning as State under Article 12. Thus, the employees

22 of NWDA cannot be said to be ‘Central Government Employees’ as  

stated in the O.M. for its applicability.  

17. Thus,  by reason that  the employees are governed by NWDA  

CPF Rules, 1982, the O.M. dated 01.05.1987 is not applicable to the  

appellant-employees. Further, as they have not established that they  

are Central Government employees, at par with their counterparts,  

their  claim  of  parity  with  Central  Government  Employees  is  also  

defeated.  

18. In view of the discussion in the foregoing paragraphs, we do not  

find  any  merit  in  these  appeals  which  are  accordingly  dismissed.  

There shall be no order as to costs.

WRIT PETITION (CIVIL) NOS. 556 & 518  OF 2012 AND CIVIL APPEAL @ SLP(C) No.19102/2012)  

19. Writ  Petition (Civil)  Nos. 556/2012 and 518/2012 and Special  

Leave Petition (C) No.19102/2012 are other group of matters arising  

out of same factual matrix and the point of contention in all three  

matters is same. Writ Petition (Civil) No.556/2012  has been filed by  

All India Navodaya Vidyalaya Staff Association and Writ Petition (Civil)  

No.518/2012 has been filed by the Principals and other officials  of

23 Jawahar  Navodaya Vidyalaya  and  the  employees  of  the  Navodaya  

Vidyalaya Samiti, for issuance of an appropriate writ in the nature of  

mandamus or any other direction/s to the respondents to introduce  

and implement CCS Pension Scheme, 1972 to all the employees of  

the Navodaya Vidyalaya Samiti. SLP(C) No.19102/2012 has been filed  

by Shri P.N. Mishra against the order dated 09.12.2012 passed by the  

High Court of Jharkhand at Ranchi dismissing the writ petition filed by  

him.  

20. The facts necessary for disposal of these cases, stated briefly,  

are that the idea of Jawahar Navodaya Vidyalaya was conceptualized  

in 1985 and two model schools were started, one each at Jajjhar in  

Haryana  and  Amravati  in  Maharashtra.  However,  the  Jawahar  

Navodaya Vidayala Samiti was established under the Registration of  

Societies Act, 1960 on 28-02-1986. It is stated that Jawahar Navodaya  

Vidyalaya  schools  have  been  established  under  the  aegis  of  the  

Ministry of Human Resource Development, Government of India. The  

employees  of  Jawahar  Navodaya  Vidyalaya  Samiti  (“JNVS”)  

demanded that they be brought under the GPF-cum-Pension Scheme  

like their counterparts in other educational institutions, like Kendriya  

Vidyalaya Samity (“KVS”), IITs, Sainik Schools, NCERT etc. However,  

they have continued to be governed only by CPF Scheme and were  

excluded from the Pension Scheme till 2004. It has been submitted

24 on behalf of the Petitioners/appellants that the Executive Committee  

of JNVS had adopted a resolution which proposed the application of  

Central Government Service Rules to its employees mutatis mutandis  

till the Samiti framed its own rules. But the resolution has not been  

shown  to  have  been  approved  by  the  Government  or  District  

Inspector of Schools. In any case, the demands of the employees of  

JNVS have been supported as well as voiced by various Government  

functionaries including Ministry of Human Resource and Development  

through its letter to the Finance Ministry in 1998 seeking approval of  

the Finance Ministry to introduce the Pension Scheme to JNVS, Y.N.  

Chaturvedi Committee Report on Review of Management Structure  

and  Operating  Mechanism  of  Navodaya  Vidayala  Samiti,  

Parliamentary  Committee  on  Functioning  of  Navodaya  Vidayala  

Samiti  through  its  154th,  184th and  198th Reports.  All  these  

committees have strongly recommended that the employees of JNVS  

be brought at par with the employees  of Kendriya Vidayalaya and be  

given similar service benefits, including pension under 1972 Rules.  

However, the major hurdle in implementation of Pension Scheme to  

the  employees  of  JNVS  has  been  the  financial  constraints  as  the  

Finance Ministry never gave a go-ahead for such implementation. To  

substantiate their claim, JNVS engaged an actuary to determine the  

financial  feasibility  of  implementing  the  Pension  Scheme  to  JNVS  

employees and it was found that if the employees contribution upto  

31.03.2005 is  transferred  to  the  Pension  Fund by 31.03.2005 and

25 annual  contribution  of  @18%  of  salary  on  monthly  basis  from  

01.04.2006, the implementation of the scheme is financially viable.  

21. The  Central  Government  formulated  New  Pension  Scheme,  

2004 for the employees of  the JNVS in response to their repeated  

demands.  This  New  Pension  Scheme  was  implemented  from  

01.01.2009. All the employees who had joined prior to the date of  

implementation were given an option to either continue under the  

CPF Scheme or to switch over to the New Pension Scheme. The cut-

off date for this New Pension Scheme was 01.01.2004; therefore, it  

was not available to the employees who had joined the service prior  

to  cut-off  date.  However,  the  employees  claim  that  New  Pension  

Scheme was also discriminatory as it is not at par with the Pension  

Scheme under 1972 Rules. The existing employees were put under  

Tier-II  of the New Pension Scheme and the employer's contribution  

was not available to them. Further, the New Pension Scheme did not  

include any family pension, medical benefits and death gratuity.  

22. Present Appellant in SLP No.19102/2012, Shri P.N. Mishra had  

filed  a  Writ  petition  in  the  Jharkhand  High  Court  seeking  writ  of  

mandamus  against  the  Government  to  implement  the  Pension  

Scheme  under  1972  Rules  for  the  employees  of  the  Jawahar  

Navodaya  Vidyalaya  on  the  grounds  of  arbitrary  discrimination

26 against them vis-à-vis employees of the Kendriya Vidyalaya and other  

educational institution although run by autonomous bodies but very  

much  under  the  aegis  of  the  HRD ministry  whose  employees  are  

benefitted  by  the  Pension  Scheme.  The  Petitioner  therein  also  

challenged  the  New  Pension  Scheme  notified  in  2008  being  

discriminatory  and  ultra  vires  of  Articles  14,  19  and  21  of  the  

Constitution  of  India.  The  High  Court  found  that  there  existed  no  

pension  scheme for  the  employees  of  JNVS  till  the  2004  Scheme  

which was notified in 2008. It noted that the New Pension Scheme  

which  was formulated by the Government  in  2004 and notified  in  

2008 was in response to the demands of the employees of JNVS and  

that cut-off date was the domain of the employer.  It  relied on the  

judgment in  All  India Reserve Bank Retired Officers’  Association v.   

Reserve  Bank  of  India,  (1992)  Suppl.  (1)  SCC  664,  wherein  the  

Supreme Court had held that when an existing scheme is liberalized,  

the  employer  cannot  ordinarily  grant  the  benefit  to  one  class  of  

employees and deny it to others by choosing arbitrary cut-off date.  

However, when a completely new scheme is introduced, whole new  

set  of  considerations  are  involved  primarily  being  the  financial  

implications.  On these grounds  the High  Court  dismissed the  Writ  

petition  stating  that  the  Petitioner  could  not  prove  that  NPS  was  

arbitrary or discriminatory.

27 23. Following  issues  are  involved  in  these  matters  for  our  

consideration:

(i) Whether O.M. dated 1-05-1987 applies to the employees of the  

NVS?

(ii) Whether the financial implication can be valid consideration for  

denying pension?

(iii) Whether the employees of the Navodaya Vidyalaya are entitled  

to parity in pension with the employees of other autonomous  

institutions  like  Kendriya  Vidyalaya,  NCERT,  National  Open  

Schools and Tibetan Schools Association?

(iv) Whether  the  New  Pension  Scheme,  2004  is  arbitrary  or  

discriminatory?  

24. Learned counsel appearing for the petitioners/appellants have  

emphasized on the applicability  of  the Office  Memorandum of  the  

Department Public Grievances and Pensions Department of Pensions  

and Pensioners’ Welfare dated 01-05-1987 to the employees of JNVS  

just like it was applied to the KVS. However, the learned Additional  

Solicitor General has lucidly brought out the difference between the  

position of employees of the organization with respect to said O.M.  

She has pointed out that for application of the said O.M., following  

three pre-requisites were to be fulfilled by the employees :

(i) They must be Central Government employees,

28 (ii) They must be in service on 01-01-1986, and

(iii) They must be CPF beneficiaries as on 01-01-1986.

25. The  Respondents  have  contended  that  the  JNVS  was  not  in  

existence at the time of cut-off date applicable under the O.M. dated  

01.05.1987 and also that the employees of the JNVS cannot claim as  

of a right to be governed by the Central Civil Service (Pension) Rules,  

1972 as they are not employees of the Central Government.  

26. It is undisputed fact that the Navodaya Vidyalaya Samiti was  

established and registered under the Societies Registration Act, 1860  

only on 28-02-1986, so its employees cannot be in service as on 01-

01-1986. Thus, while first condition is disputed, the second condition  

is clearly not fulfilled. In contrast, the KVS was established in 1965.  

Therefore, we find merit in the argument of the learned Additional  

Solicitor  General  that  the  said  O.M.  cannot  apply  to  the  NVS  

employees.  

27. Further,  it  was  submitted  by  the  learned  counsel  for  the  

petitioners/appellants that the only reason for not providing pension  

as per 1972 Rules has been the financial implications which becomes  

apparent from the letter of the Finance Ministry dated 05-02-1999 to  

the HRD Ministry in which the Finance Minister has clearly pointed out

29 the excessive liability that the Government would have to incur in  

case  it  extends  pension  scheme  to  the  JNVS  employees  and  

suggested that an annuity scheme may be formulated with LIC by  

employees contribution alone without any liability of the Government.  

Also the Finance Ministry has expressed its concern that extending  

such pension benefit on the grounds of parity would mean that all the  

autonomous bodies under Government of India would make similar  

demands and that would be financially infeasible.  

28. In  support  of  these  submissions,   learned  counsel  for  the  

petitioners/appellants has cited  plethora of judgments wherein it was  

held that fundamental rights cannot be violated on the grounds of  

financial constraints and that the right to education is  a fundamental  

right which cannot be jeopardized by compromising with quality of  

teachers in schools due to poor post service benefits. Reliance was  

also placed on Municipal Council, Ratlam v. Vardichand (1980) 4 SCC  

162, All India Imam Organization v. Union of India, (1993) 3 SCC 584,  

and Kapila Hingorani v. State of Bihar, (2003) 6 SCC 1.   

29. Learned  Additional  Solicitor  General  appearing  for  the  

respondents  argued  that  none  of  the  cases  relied  upon  by  the  

Petitioners/appellants involves right to pension and that Pension is  

not  a  Fundamental  Right.  She  cited  Associate  Banks  Officers’  

30 Association  v.  State  Bank  of  India  and  Ors.,  1998  (1)  SCC  428,  

wherein this Court observed that many ingredients go into shaping of  

the  wage  structure  of  any  organization,  including  the  economic  

capability of  the employer.   Taking simplistic approach of granting  

higher remuneration to workers of one organization because another  

organization  had  granted  its  employees,  may  lead  to  undesirable  

results  and  the  application  of  the  doctrine  would  be  fraught  with  

danger and may seriously affect the efficiency and functioning of the  

organization. She also relied on A.K. Bindal v. Union of India, (2003) 5  

SCC 163, which also states that the financial capacity is a relevant  

consideration  in  deciding  revision  of  pay  scales.  Therefore,  the  

learned Additional Solicitor General concluded that financial capacity  

of the employer is an important factor which cannot be ignored while  

fixing the wage structure and thus, the demands of the employees of  

NVS are not founded on sound principle of law.

30. The learned counsel for the petitioners/appellants have argued  

that  Right  to  equality  is  guaranteed  under  Article  14  of  the  

Constitution which incorporates the principle of equal pay for equal  

work and same has been violated in present case by granting pension  

under  1972 Pension Rules  to the employees of  some autonomous  

educational institutions like KVS, NCERT etc. and denying that benefit  

to the employees of NVS. The learned Counsel pointed out that parity

31 in pay and pension be granted, particularly, between the employees  

of NVS and the employees of KVS as both these institutions are run  

by autonomous  bodies  registered under Societies  Registration Act,  

1860  under  the  aegis  of  the  Ministry  of  Human  Resource  

Development,  Government  of  India  and  are  fully  funded  by  the  

Government of India. Also, that the working hours of the teachers in  

NVS  are  more  as  compared  to  the  KVS  and  the  JNVS  being  fully  

residential schools, the burden on teaching and non-teaching staff is  

much more than Kendriya Vidalayas which are only day schools. The  

learned Counsel has brought to the fore recommendations of various  

committees and authorities which have supported the cause of the  

Petitioners, namely, Review Committee set up by the Ministry of HRD  

under  Chairmanship  of  Shri  Y.N.  Chaturvedi  to  review  the  

Management  Structure  and  Operating  Mechanism  of  JNVS,  154th  

report  of  the  Department  Related  Parliamentary   Committee  on  

functioning of JNV which was laid before Lok Sabha on 02-03-2005,  

Cabinet Note prepared by the Ministry of HRD in March 2006 which  

specifically  pointed  out  the  need  to  extend  the  Pension  Scheme  

under  1972  Rules  to  the  employees  of  JNVS,  198th Report  of  the  

Department Related Parliamentary Committee submitted on 17-08-

2007  which  strongly  recommended  for  implementing  the  Pension  

Scheme to the employees of JNVS.  Even the Ministry of Labour and  

Employment by its O.M. dated 07-09-2006 to the Ministry of  HRD,  

recommended extension of Pension Scheme to NVS.

32

31. Learned Additional Solicitor General, appearing on behalf of the  

respondents submitted that the issue of extending Pension Scheme  

of 1972 to the NVS employees is an administrative decision which is  

made keeping in mind various determining factors and that it cannot  

be said all schools and educational institutions constitute one class.  

She cited All India Sainik Schools Employees Association v. Defence   

Minister-cum-Chairman Board of Governors, Sainik School, 1988 (1)  

Supp SCC 205, wherein the Sainik School employees had sought writ  

of mandamus to extend all service benefits and advantages to them  

as are applicable to the employees of the KVS. In the said case the  

Supreme  Court  dismissed  the  petition  on  the  ground  that  the  

employees of Sainik Schools cannot be considered employees of the  

Central  Government  nor  can  they  be  treated  at  par  with  KVS  

employees.   

32. The  Respondent  also  relied  on  S.C.  Chandra  v.  State  of  

Jharkhand,  (2007)  8  SCC  279,  wherein  this  Court  held  that  the  

doctrine of ‘equal pay for equal work’ is applicable only when there is  

total  identity  in  two  groups  of  employees.  Further,  in  A.K.  Bindal  

(supra),  this  Court  has  held  that  employees  of  Government  

companies are not Government servants. It is, therefore, submitted  

on  behalf  of  the  respondents  that  the  petitioners/appellants  are

33 employees  of  the  autonomous  body  that  is  Navodaya  Vidyalaya  

Samiti which has all the control on the organization.

33. It may be expedient to note what this Court observed in  the  

case of S.C. Chandra (supra):  

“…fixing  of  pay  scales  by  the  Courts  by  applying  the  principle  of  equal  pay  for  equal  work  upsets  the  high  constitutional  principle  of  separation of  powers  between  three  organs  of  the  state.  Realizing  this  Court  has  in  recent years avoided applying the principle of equal pay  for equal work, unless there is complete and wholesome  identity between the two groups (and there too the matter  should be sent for examination by an expert committee  appointed by the Government instead of the Court itself  granting higher pay)”

34. Further, the learned counsel appearing for the Appellants have  

contended that the pension is not a bounty given to the employee at  

the  will  of  the  Government  but  a  valuable  right  vested  in  the  

employee and a right to receive pension is a “property” under Article  

31 of the Constitution of India as was held in  State of Kerala v. M.  

Padmanabhan Iyer,  (1985) 1SCC 429. Further, the learned Counsel  

for  the  Appellants  submitted  that  the  pension  is  that  part  of  the  

salary which was not given to the employee during his/her service  

but was kept for payment as pension, so now the employer cannot  

deny the employees what is rightfully employees’ because, if there  

was no pension to be paid, employees would have had higher salary.

34 35. Learned  Additional  Solicitor  General  has  submitted  that  the  

right  to pension is  not an inherent  right  of  every employee but  it  

flows from the rules of the Government. If the employee is entitled to  

pension as per the rules of the Government, his/her pension cannot  

be  withheld  by  a  simple  executive  order  (Deokinandan  Prasad  v.   

State of Bihar & Ors. (1971) 2 SCC 330). Similarly, it is submitted that  

if  the  employee  is  not  entitled  to  the  pension  as  per  the  rules  

governing  his/her  service  conditions,  he/she  cannot  claim  it  as  of  

right inherent to the employment.

36. Further, the Counsel for the appellants’ argument regarding the  

pension  being  part  of  the  salary  is  accepted  as  the  principle  

governing pension but it cannot be applied to the present case as the  

employees in the present case were not promised any pension at the  

time of their appointment and no deductions were made during their  

service towards any pension fund. Thus, it cannot be said that the  

employees have been denied what was rightfully theirs.

37. The Appellants had raised the issue of the New Pension Scheme  

which was notified in 2008 and whose cut-off date was 01.01.2004 in  

the writ petition and the SLP, however, it wasn’t pressed during the  

arguments.  In  any case,  they have claimed that  the New Pension  

Scheme,  is  also  discriminatory  and  that  the  said  cut-off  date  is

35 arbitrary. The learned counsel for the appellants submitted that the  

New Pension Scheme is not at par with the Pension Scheme under  

1972 Rules as it does not have provisions for death gratuity, family  

pension and medical benefits. Also, the two tier system of the New  

Pension Scheme was challenged.  

38. We have carefully perused the judgment of the High Court of  

Jharkhand in W.P. 4946 of 2008 against which SLP(C) No.19102/2012  

has been filed and we concur with the view of the High Court. The  

cut-off date is a domain of the employer and so the introduction of  

new scheme of  pension  will  be  done  considering  all  the  relevant  

factors  including  financial  viability  of  the same.  No interference is  

warranted  unless  there  is  gross  injustice  is  perpetrated.  The  

Appellants have failed to prove any arbitrariness and discrimination  

with respect to the New Pension Scheme.

39. In the light of the discussion in the foregoing paragraphs, the  

writ petitions and the appeal are also dismissed. However, there shall  

be no order as to costs.

….....…..…………………..J. (Anil R. Dave)

36 ….....…..…………………..J. (Vikramajit Sen)

                                       ...........…………………….J.                                    (Pinaki Chandra  Ghose)  

New Delhi; January  20, 2015.