NE LEGAL BUREAU
CHENNAI, APR 23
In a significant judgment, the Madras High Court on Friday held government employees can convert their Contributory Provident Fund (CPF) scheme to that of General Provident Fund (GPF) and avail themselves of pension in accordance with the Central Civil Service (Pension) Rules, 1972.
Justice M Parthiban gave the ruling while allowing a batch of writ petitions from Dr Kishore K Johan and eight others challenging an order dated November 18, 2019 of the Education Department of the Puducherry government, which denied the conversion.
Among other things, the government denied the conversion on the ground that there was a considerable delay and latches in the plea.
The judge pointed out that by a recent Office Memorandum dated February 7, the government had thought fit to extend the benefit of conversion and had given time upto May 31, 2020 to the employees, who had been recruited earlier to January 1, 2004 for conversion.
The intention of the government was, therefore, to maximise the number of beneficiaries of the GPF scheme. In the face of this Office Memorandum, the objection relating to latches and delay was a misplaced one and has to be rejected.
Moreover, it was also not disputed that the option was called for from the petitioners to remain with CPF or switch over. Besides, in the absence of any option calling for retention of the petitioners in the CPF scheme, their retention with the same was contrary to the mandatory prescription on implementation of the Fourth Pay Commission that the GPF scheme shall be made applicable to all servants as a rule.
“In the said circumstances, the petitioners having established their right unequivocally for the applicability of the GPF scheme, the latches or the delay pleaded on behalf of the respondents, would have to necessarily pale into legal insignificance,” the judge said.
The last objection was that while these petitioners were appointed, in their appointment letters it was clearly stipulated that they would be covered by CPF scheme and therefore, they were stopped from protesting against the said claim made applicable to them.
This objection of the authorities cannot be held to be valid for the reason that the right of these petitioners to be brought under the GPF scheme, in the facts and circumstances, cannot be forced to be parted with because there was a stipulation in their appointment letters detrimental to their interest.
Such stipulation cannot stand the test of judicial scrutiny when these petitioners at the time of their appointment had no inkling of the mandatory nature of the GPF scheme which was brought into force after IVth Central Pay Commission, the judge said.
“In any event, there cannot be any estoppel against exercise or enforcement of constitutional and fundamental rights. In such a view of the matter, the said objection would have to be rejected as being without merit,” the judge said.
Allowing the petitions, the court set aside the impugned order denying conversion as illegal, unreasonable, discriminatory and violative of Article 14 of the Constitution.
The judge directed the Puducherry education department to bring the petitioners within eight weeks, under the then GPF scheme for the purpose of grant of pension in accordance with CCS (Pension) Rules, 1972.
