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Judgment
The present MA No. 158/2019 has been filed by the applicants, for execution of the order of the Tribunal dated 14.03.2018 in OA No. 1064/2018 which reads as under:-
"2. At the outset, learned counsel for the applicants, Shri Yogesh Sharma states that a similar matter already stands decided by the Hon‟ble Madras High Court in W.P. No.19215 of 2015. He states that he would be satisfied, if respondents are directed to consider the case of the applicants in the light of the above said judgment.
In view of the limited prayer made by the learned counsel for the applicants, without going into the merits of the case, the OA is disposed of with a direction to the respondents to decide the representation dated 14.12.2017 of the applicants and if the applicants‟ case is found to be similar to the aforementioned judgment, they may be given similar benefits as were granted to the applicants therein. The respondents shall decide the case of the applicants within a period of two months from the date of receipt of a certified copy of this order.
No costs."
The applicants in this MA have submitted that despite aforesaid directions, the respondents have not considered their request for shifting them from CPF Scheme to GPF cum Pension Scheme by way of extending the benefit of the judgment of the Hon'ble Madras High Court in the case of N. Subramanian Vs. Commissioner, KVS & Ors. (WP No. 19215/2015) and have placed them under the CPF scheme, which is totally illegal and arbitrary. The applicants have alleged that instead of considering their case in the light of the judgment of the Hon'ble Madras High Court, the respondents have passed the order dated 06.11.2018 rejecting their request by applying the judgment of the Hon'ble Supreme Court in the case of KVS Vs. Smt. Jaspal Kaur. They have further alleged that in the entire impugned order dated 06.11.2018 of the respondents, they have not considered the case of the applicants in the light of the judgment of the Hon'ble Madras High Court, whereas the Tribunal vide judgment dated 14.03.2018 had directed the respondents to consider the claims of the applicants in the light of the Madras High Court and if they are found to be similar, the benefit of Madras High Court may be extended to them.
The respondents, though have not have not filed any reply to the said MA but are able to show from the order dated 06.11.2018 passed in compliance with the aforesaid order of the Tribunal that they had thoroughly examined the case of the applicant, namely, Smt. Daya Kumari Rani PET, and on the basis of the secondary evidences, such as allotment of new CPF Account No., monthly pay bill deductions, Form 16 issued year after year for filing income tax returns, annual statement of CPF Account, have rightly arrived to the conclusion that the said applicant was aware of the fact that she had been under CPF Scheme in the light of the decision of the Hon'ble Supreme Court in the case of KVS Vs. Smt. Jaspal Kaur (Civil Application No. 2876/2017) in which it has been laid down that merely because the original document relating to exercise of option was not produced that should not be a ground to ignore the ample materials produced to show exercise of the option. Hence, the respondents have rightly applied the case of Smt. Jaspal Kaur (supra) in respect of the applicant no.1.
On perusal of the order passed by the respondents dated 06.11.2018, we also find that the MHRD did not agree to the proposal of grant of one time permission for changing from CPF to GPF cum Pension Scheme for teaching and non-teaching staff of KVS in view of the that the MHRD, vide its letter No.F3-14/2012-UT-2 dated 7th April 2015, had observed that the employees of KVS who were in service as on 1.1.1986 and decided to opt for CPF made a conscious decision knowing well that the option as such exercised is final and further observed that grant of one more option to such CPF subscribers in KVS could have repercussion elsewhere and hence, did not allow the same. We find this is a policy decision and the Courts cannot usurp the functions assigned to the executive under the Constitution and cannot even indirectly require the executive to exercise its rule making power in any manner. The Courts cannot assume to itself a supervisory role over the rule making power of the executive under Article 309.
In P.U.Joshi vs. Accountant General (2003) 2 SCC 632, the Apex Court held as under:
"10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substruction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service."
Further in Indian Drugs & Pharmaceuticals Ltd. vs. Workman, Indian Drugs & Pharmaceuticals Ltd., (2007) 1 SCC 408, the Apex Court held as follows:-
"When the State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike down the action. While doing so the court must remain within its self imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize quo any matter which under the constitution lies within the sphere of the legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers".
The courts must, therefore, exercise judicial restraint, and not encroach into the executive or legislative domain. Orders for creation of posts, appointment on these posts, regularization, fixing pay scales, continuation in service, promotions, etc. are all executive or legislative functions, and it is highly improper for Judges to step into this sphere, except in a rare and exceptional case. The relevant case law and philosophy of judicial restraint has been laid down by the Madras High Court in great detail in Rama Muthuramalingam vs. Dy. S.P. AIR 2005 Mad 1, and we fully agree with the views expressed therein."
We are also satisfied with the reasoning given by the respondents in their detailed and speaking order dated 06.11.2018 in which they are able to show that the MHRD, vide their order dated 08.12.2016, had intimated that those cases where the provisions of the OM dated 01.09.1988 were not followed during period from 1.1.1986 to 31.12.2003, KVS may take necessary corrective action in all cases having regard to relevant facts of each individual case. Accordingly, in pursuance of the aforesaid letter dated 8.12.2016 of the Ministry of HRD, the respondent department has been considering and taking action for conversion from CPF to GPF cum Pension Scheme on case to case basis where officials were/are appointed on direct recruitment basis during 1.1.1986 to 31.12.2003 subject to verification of records.
Hence, in view of the reasoning given by the respondents in their detailed order dated 06.11.2018, it is noticed that the case of the applicants had thoroughly been examined and considered by the respondents in light of the order of the Tribunal dated 14.03.2018 passed in OA N o. 1064/2018 and the plea of the applicants that their case were not considered in light of the judgment of the Hon'ble Madras High Court is not found to be correct as on the basis of the evidences, such as allotment of new CPF Account No., monthly pay bill deductions, Form 16 issued year after year for filing income tax returns, annual statement of CPF Account, their case are rather found to be squarely covered by the decision of the Hon'ble Supreme Court in the case of KVS Vs. Smt. Jaspal Kaur (Civil Application No. 2876/2017). Hence, in view of the same, it becomes clear that the order of the Tribunal has been executed by the respondents in its true letter and spirit. Accordingly, MA No.158/2019 for execution of the order of the Tribunal is dismissed. Pending MAs also stand disposed of. No order as to costs.