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A lost case of Pension
  AFR Judgment reserved on 23.03.2011Judgment delivered on 12.08.2011Civil Misc. Writ Petition No.32101 of 200 Dr. V.P. Singh & Ors. !s. Executive Council Banaras Hindu University, Varanasi & Ors. Civil Misc. Writ Petition No.28 #0 of 200 Proessor !rittun ay Bhattacharyya !s. Executive Council, B.H.U., Varanasi & #nr. $on. %unil Am&'(ni) J.$on. *. N. P(nde+) J. $.%e have heard Shri .'. Singh or the (etitioners. Shri )a*esh Sinha or the Central overn+ent. Shri Pan*a  a-vi or Banaras Hindu University and Shri V.'. U(adhyay or the University rants Co++ission. .#ll the (etitioners are teachers/ e+(loyees o the Banaras Hindu University. By the 0rit (etition o.1$2$ o 223 they have (rayed or -uashing the decision o the Executive Council o the University dated $4th52th 6uly, 22 as co++unicated 7y the )egistrar o the University on 8.4.22 regretting to a((rove the orders o the Vice Chancellor o the University dated 2.1.22$ and $9.$.22 to grant another o((ortunity to the university e+(loyees, and to all those 0ho have su(erannuated ater $.$.$44:, to o(t or the (ension sche+e. Conse-uently, the action ta*en in co+(liance to the Vice Chancellor order dated $9.$.22 0as 0ithdra0n. ;he (etitioners have urther (rayed or 0rit o +anda+us co++anding the university to allo0 the  (etitioners to s0itch 7ac* ro+ Contri7utory Provident <und Sche+e =CP< Sche+e> to eneral Provident <und5cu+5ratuity5cu+5Pension Sche+e =P<5ratuity5Cu+5Pension Sche+e>.1.?n %rit Petition o.9@42 o 223, the (etitioner has challenged the decision o the Executive Council dated 1$st   !ay, 221 co++unicated to the (etitioner vide letter dated 3th 6uly, 221.3.Brie acts giving rise to these 0rit (etitions are that the <ourth Central Pay Co++ission reco++ended that all contri7utory und 7eneiciaries in service as on $.$.$49: should 7e dee+ed to have co+e over to the Pension Sche+e unless they s(eciically o(t to continue under the Contri7utory Provident <und Sche+e. ;he De(art+ent o Pension and Pensioners %elare accordingly issued an order on $.8.$49@ under 0hich the o(tion 0as to 7e exercised 7y 12.4.$49@. ;hose e+(loyees, 0ho o(ted to continue under CP< Sche+e 0ere ex(ressly retained in CP< Sche+e. #ll the  (etitioners o(ted to continue 0ith CP< Sche+e.8.Shri .'. Singh a((earing or the (etitioners states that the Benaras Hindu University vide its Circular dated :.1.22$ invited a((lications ro+ the e+(loyees o the res(ondent university or changing over ro+ CP< to P<5ratuity5Pension Sche+e. ;he o(tion 0as to 7e exercised 7y 8.8.22$. ;he decision to give an o((ortunity to the e+(loyees 0as ta*en 7y the Vice Chancellor on the reco++endation o a co++ittee, 0hich 0as a((ointed 7y the co+(etent authority o the university and included t0o +e+7ers o the Executive Council. !any e+(loyees exercised the o(tion and 0ere allotted the P< nu+7ers. #lthough in res(ect o so+e o the nu+7ers Ainteri+A 0ord 0as +entioned 7ut in +any cases the 0ord Ainteri+A 0as not +entioned. ;he (rocess continued or a (eriod o $@ years ater 0hich the acility 0as discontinued and a decision 0as ta*en 7y the Executive Council o the University on $4th52th 6uly, 22, 0hich is under challenge.:.?t is su7+itted 7y learned counsel or the (etitioner that the Executive Council o the University has acted ar7itrarily in not acce(ting the o(tion or+, 0hich 0as  1 su7+itted 7y the (etitioner in (ursuance to the notiication dated :.1.22$. ;he university had in the (ast also invited o(tions in the year $499 and thrice in the year $448 ro+ the teachers/ e+(loyees o the Universities. ;here are several other (re+ier institutes/ universities in the country in 0hich the teachers and e+(loyees have 7een extended the acility o s0itching 7ac* ro+ CP< to P<5ratuity5Pension Sche+e u(to the year 221. @.;he (etitioners have a+ended the 0rit (etitions and have challenged the decision o the overn+ent o ?ndia and the University rants Co++ission dated .@.221, 1.4.221 and 2.$2.221 re ecting the re-uest o the University to allo0 the teachers/ e+(loyees to s0itch over to the P<5ratuity5Pension Sche+e and have challenged the order dated .@.221 (assed 7y the 6oint Secretary =Personnel>, De(art+ent o Ex(enditure, !inistry o <inance, overn+ent o ?ndia, the order dated 1.4.221 (assed 7y the Under Secretary, University rants Co++ission, and the order dated 2.$2.221 (assed 7y the De(uty Secretary, De(art+ent o Secondary and Higher Education, !inister o Hu+an )esource Develo(+ent, overn+ent o ?ndia. ?t is su7+itted that on the reco++endation o 8th Pay Co++ission the (ay (ac*age 0as drastically a+ended in avour o the e+(loyees, 0ho had o(ted or P<5ratuity5Pension Sche+e and has adversely aected those, 0ho continued under CP< Sche+e in as +uch as the age o su(erannuation 0as raised ro+ :2 to : years the co++utation o (ension 0as increased ro+ $/1rd o the (ension to 32 o the (ension a+ount 8 o the non5(racticing allo0ance 0as (rovided to the teachers 7elonging to +edical (roession to 7e treated as (ay, or calculating (ension. ;he dearness allo0ance 0as added or the (ur(oses o calculation o gratuity, 0ith ceiling o )s.1.8 lacs and a+ily (ension 0as li7eralised 0.e.. $st  3 6anuary, $449 giving the 7eneit to +other/ ather, in the a7sence o s(ouse and children. ;he denial o an o((ortunity, 0hich has 7een given to the teachers o +any other institutes, to s0itch 7ac* ro+ CP< to P< Sche+e, is thus 0holly ar7itrary and illegal and violative o (etitionersA rights under #rt. $3 and $: o the Constitution o ?ndia. 9.Shri Pan*a a-vi a((earing or the Banaras Hindu University, states that the President o ?ndia in the ca(acity as visitor o the University had a((roved the a+end+ent o Statute 31 o the B.H.U. #ct and accordingly the Central University )etire+ent Beneit )ules, $4:@ 0ere circulated 7y notiication dated 4.$.$4:@ re-uesting the e+(loyees o the University to exercise their o(tion under )ule 1 =iii> o the )ules. ;hose e+(loyees, 0ho o(ted or CP< Sche+e 0ere again given an o((ortunity to s0itch over (roviding or the last date o exercising the o(tion 7y 1$st Dece+7er, $448. ;hereater, no urther o((ortunity 0as allo0ed. So+e o the e+(loyees, 0ho had o(ted or CP< Sche+e and also did not avail the o(tion 7y 1$st Dece+7er, $448 +ade oint re(resentation giving hi+ another o((ortunity. ;heir re(resentation 0as or0arded to University rants Co++ission, e0 Delhi in ove+7er, $444. ;he University rants Co++ission reerred the +atter to the !inistry o Hu+an )esource Develo(+ent, 0hich in turn sought the advice o !inistry o <inance. ;he !inistry o <inance did not acce(t the oint re(resentation. 4.;he Vice Chancellor constituted a Co++ittee under the Chair+anshi( o Shri D.'. )ai vide notiication dated 1$.$.22$ to exa+ine 0hether the re-uest o the teachers/ e+(loyees to give one +ore o((ortunity can 7e considered. ;he Co++ittee reco++ended that the letters o UC dated $8th 6une, 222 and !inistry o Hu+an )esource Develo(+ent dated $4th 6une, 222 7e re(orted to the
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