REJOINDER FOR SLP (CIVIL) NO. –
19102/2012
1.
INTRODUCTION
As per Cabinet approval (decision
taken on 9th August 1985) Union of India, Ministry of HRD, Deptt. Of
Education decided to establish a residential co-educational school in each
district under New Education Policy in the 07th Plan to provide
quality education to the deprived children from rural areas, the schools would
be fully funded by Union of India. The decision was executed on 05.11.1985 in
the meeting of a 10 member a Committee headed by Sri P.V. Narsimha Rao, the
then Minister of HRD, Union of India. The members included Minister of State
for Education and Culture, Education Secretary, Additional Education Secretary,
Director, NCERT, Joint Director NCERT, Prof. of NCERT, Directors NIEPA, Joint Secretary & Under Secretary of
Education, of Union of India.
Presently the 583
schools, known as Jawahar Navodaya Vidyalaya are spreading in 27 States and 07
Union territories total no. of employees are 12666 as on 01-01-2004.
2.
AIM
and Objectives:
The aim of the
Union of India was to spread Secondary & Sr. Secondary education in the
country through central sector schools fully funded by Union of India:
a)
To serve in each district as focal
point for improvement of quality of school education in general through sharing
of experiences and facilities.
b)
To provide good quality modern
education including a strong component of culture, inculcation of values,
awareness of the environment, adventure activities and physical education to
the talented children predominantly from rural areas.
3.
National
Policy on Education 1986:
Union
of India, had issued action progamme in its policy (National Policy on
Education 1986) wherein amongst other things the following provisions were
made. “Recruitment and Old age benefits and medical care – All Teachers in
Govt., Local bodies and in Institution created by Govt. or by Acts of
Parliament /State legislators will be eligible for retirement and medical
benefits identical with Govt. servants. Teachers in aided and private
Institutions will also be eligible for such benefits in accordance with such
directions as may be issued by the Govt. from time to time.” ( AO No.-
1325/2000 dated – 26.09.2001 CAT, Principal Bench, New Delhi)
4.
Accordingly two schools were initially
opened in 1985-86 on trial basis - one in Jhajhar (Haryana) and the other in
Amravati (Maharashtra) administered through National Council of Education
Research & Training, Union of India .The Teaching & Non Teaching
Employees were appointed by both the schools on direct recruitment basis. In
their appointment letters it is mentioned that ‘The Employees are entitled to
the benefit of pension – cum – gratuity/ CPF (Contributory provident fund) as
per the rules of the Model Schools. The option for CPF/Pension scheme is to be
exercised within six months from the date of appointment of employees
concerned. If the option in not received within this period, it will be
presumed that he/she has exercised for GPF/Pension (CCS Pension 1972)’.
5.
Thereafter, from 1986-87 started the opening
of one school in each district under the name ‘Navodaya Vidyalaya’ and
subsequently the above mentioned two schools opened in 1985-86 were absorbed in
the name of Navodaya Vidyalaya with their employees who are still serving in
the JNVs with their seniority from the date of their appointment held in
January 1986 (Subsequently renamed Jawahar Navodaya Vidyalaya during July
1989).
The terms in
the appointment letter recruited for the JNVs established from 1986-87
mentioned that “Employee will be eligible for the usual allowances admissible
under the rules & orders enforced from time to time”.
6.
Decision
of executive committee- for service condition of NVS employees:-
For the running of JNVs/NVS it was decided by the XI Executive Committee in the
meeting held on 12-01-1992 to adopt Central Government rules & regulations
for its employees mutatis-mutandis till the time Samiti framed its own rules
and regulations which was circulated vide letter No.- F. 6-1/92-NVS(Admn),
dated: 30-03-1992 & F. 14-2/93-NVS (vig), dated 20.12.1993 which has
neither been framed by NVS or HRD nor recended till date.
By this resolution a few conduct
rules for the discipline of NVS employees were adopted and rules of employees pensionary
benefit including other rules remained unchanged.
The union of india has also
brought NVS under the purview of Central
Administrative Tribunal. At present the NVS employees are at par with other
central Govt. employees except CCS
pension 1972 joined before 01.01.2004.
At the time of establishment of
NVS/JNVs CCS pension 1972 was available for the employees of central Govt.
& its autonomous bodies but violating the rules of central Govt., the CPF
scheme was adopted by NVS arbitrarily without taking care of social security of the 12666 NVS employees & their family & children.
7.
The employees & its association
have continuously been demanding by submitting their umpteen pray petition to all the competent
authorities of union of India including Ministers & Prime Minister for
implementation of CCS Pension 1972 for the teaching & non teaching
employees of JNVs/NVS appointed before 01-01-2004 but no positive result could
be achieved.
8.
The following committees/authorities
have also recommended strongly time and again besides above prayer for
implementation of CCS Pension 1972 for the teaching & non teaching
employees of JNVs/NVS appointed before 01-01-2004:
i.
Sri
Y.N. Chaturvedi Committee - constituted by Ministry of HRD report submitted
on 2001
ii.
Review
committee - constituted
by Ministry of HRD report submitted
on 29-01-2004.
iii.
148th
Parliamentary Committee - Report
presented in Lok Sabha on 02-03-2005.
- Report presented in Rajya Sabha
on 03-03-2005.
iv.
184th
Parliamentary Committee - Report
submitted on 30-11-2006.
v.
Commissioner
NVS, New Delhi - Request sent to
VI Central Pay Commission on
29-12-2006
followed by the letter dated 30.10.2009 & 20.05.2010.
vi.
198th
Parliamentary Committee - Report
submitted on 17-08-2007.
vii.
IV
Central Pay Commission - Recommended
that all CPF beneficiaries in service
on 01.01.1986 should be deemed to have come
over the pension scheme where as JNV/NVS have
established in November 1985 after the
Cabinet
approval.
As
per recommendation of VI CPC to
implement higher scale of pay and pension at par of
Central Govt. employees, the same
scale of pay has
been implemented to the NVS employee but CCS
Pension 1972 has not been implemented.
viii.
VI
Central Pay Commission - Recommended
for consideration of higher pay scale
&
pensionery benefits to NVS employees seeing their hard work.
ix.
Minister
of HRD
to
Minister
of Finance - A D.O. Letter
written by the Minister of HRD to the
Minister
of Finance Union of India vide D.O. letter reference no.- 14-03/95-NVS/vig
dated 11.12.1998 requesting to sanction
CCS Pension 1972 to the teaching & non teaching employees appointed before
01-01-2004 of JNVs/NVS, IITs & IIM.
Out
of which CCS Pension 1972 has been sanctioned to the employees of IITs &
IIM except the employees of JNVs/NVS appointed before
01-01-2004.
x.
HRD/Union
of India
to
Director,
NVS, New Delhi - Two D.O. letters
written by HRD on 17-07-1995 &
31-08-1995
(D.O. Letter no.- 08-43/95-UT-11 dated 31.08.1995) to the Director, NVS, New
Delhi to make suitable arrangement to
amend the pension and other rules related to employees and complete this
process in time bond and confirm for implementation of CCS Pension 1972 for the
employees of NVS appointed before 01-01-2004 on priority basis followed by
reminders mentioning that NVS an autonomous body of Union of India, is the only
deptt. left for implementation of CCS Pension 1972.
xi.
A
meeting of high power committee - consisting of nine members of Union of India
including higher members of education, pension,
finance, undertaking division of Union of India and
Navodaya Vidyalaya Samiti held under the chairman
-ship of Education Secretary (SE & HE) on 21st
June
2000
vehemently & anonymously decided to implement CCS pension 1972 (appointed
before 01.01.2004) to the employees of New IITs, IIMs &NVS.
Out of which CCS Pension 1972 has already been
implemented well in time for the employees of New IITs & IIMs but the
employees of JNVs /NVS have been deliberately deprived of the benefits of CCS
Pension 1972.
9. The
following autonomous bodies of Union of India have given CCS Pension 1972 to
the employees appointed before 01-01-2004.
i.
______________________________
ii.
______________________________
10. The
following autonomous bodies of Union of India have given CCS Pension 1972 to
the employees appointed before 01-01-2004 who were earlier in CPF Scheme.
i.
NIT, Kurukshetra - June 2012 (By
the order of Hon’ble High Court
Punjab
& Hariyana).
ii.
IIT
Kanpur
iii.
IIT,
Bombay
iv.
IIT,
Kharagpur
v.
CSIR,
(Union of India)
vi.
Dept.
Of electronics
vii.
Dept.
of Atomic Energy
viii.
Dept.
of Space- option for change over from CPF to pension scheme extended vide G.I.,
Dep. Of Pen. & Pensioner’s welfare O.M No. 4/1/87-P&PW(PIC-II),dated:
23.07.1996.
ix.
For
VI, VII & VIII
11. The
following autonomous bodies of Union of India have given CCS Pension 1972 to
the employees appointed before 01-01-2004 which have been established after
JNVs/NVS:
i.
Deptt.
of HRD, Union of India as per order of Deptt. of Finance, Union of India
sanctioned CCS Pension 1972 to the teaching & non teaching appointed before
01-01-2004 of 05 Inter University Counsel of University Grant Commission vide
reference no. – DO-F-4-26/97-UT(A), dated: 10-09-2009
ii.
Indira
Gandhi Open University
iii.
Central
Tibetian School
iv.
National
Open School
v.
Konkan Railway Corporation
vi.
IIT,
Roorkee
vii.
National
Human Right Commission
viii.
LIC
ix.
GIC
x.
NEIGRIHMS,
Shillong (Union of India)
12.
Navodaya
Vidyalaya Samiti is an autonomous body, Union of India registered under society
act – XXI-1860 (Regd. In February 1986).
Hon’ble
Supreme Court of India has passed two orders to treat the autonomous bodies,
Union of India registered under society act – XXI-1860 as Union of India or
Govt. of State as the case may be vide reference no. –
i.
Ramdeo Sethi v/s Inter
National Airport authority of India -1979.
ii.
Ajai Hasa v/s Regional
Engineering College, Shrinagar-1980.
13. For Deputationist :
Many teaching & non teaching
employees/officers have joined NVS on deputation from various deptts. where CPF
or CCS pension 1972 were applicable and have been permanently absorbed by NVS
and have been given CPF without taking their consent.
Hon’ble
Supreme Court of India has passed mandamus to maintain uniformity vide
reference no.- 2009-VII-SCC No. – 734 (Civil Appeal No.- 3481/2009 decided on 12-05-2009
for the deputationist permanently absorbed by the deptt. concern.
Sri
Ashim Kumar Ganguly v/s FCI.
14. The Hon’ble Supreme Court of
India, the constitution bench has held that – “Pension is not a bounty nor a matter of grace depending upon the sweet
will of employer. it is not an Ex-gratia payment, but a payment for past
service rendered. It is a social welfare measure rendering socio-economic
justice to those who in the hay days of their life, ceaselessly toiled for
their employers on assurance that in their old age, they would not be left in
lurch.”
“Pension is therefore deferred wages.
Pension is their statutory, inalienable and legally enforceable right and it
had been earned by the sweat of their brow……..”
Reference –DS Nakara v/s Union of India
(1983)1 SCC 305 which is often called the Magnacarta of the Pensioners.
15.
Actuary
Engaged to workout the financial implication if CCS Pension 1972 is implemented
:
a)
As per instruction of Ministry of
HRD/Finance NVS had engaged an actuary to work out the financial implication if
CCS Pension 1972 is implemented, which has submitted its report after
calculation by the actuary, (Vide reference no. F-14-3/95/NVS (Admn.) dated
06.03.2006 letter addressed to the Department of HRD by the NVS), that NVS has its
own fund to pay CCS pension 1972 to its employees appointed before 01.01.2004.
b)
Again second actuary engaged to work
out the financial implication if CCS Pension 1972 is implemented, which has
submitted its report after calculation by the actuary, (Vide reference no.
F-11-35/09-NVS (Admn.)/203, dated: 12-05-2010 letter addressed to Joint
Secretary (SE & L) HRD, New Delhi by the commissioner NVS) through which
NVS has sought permission from HRD to pay CCS Pension 1972 to the employees of
NVS appointed before 01-01-2004, which can be borne by the NVS for 13 years and
after which Govt. will meet the net Pension liabilities each year. Actuary
first has submitted in its report that average life of payment of Pension to an
employee is 16 yrs.
Analyzing the above statistical
position, it is crystal clear that NVS is itself in a position to bear the
financial requirement very easily for implementation of CCS Pension,1972 to NVS
employees appointed before 01.01.2004.
c)
Further, as per point-“ 24 (II) (i) of
Memorandum of Association, NVS is empowered to determine procedure for payment
of pension, gratuity or provident fund
of employees of the society to their wives, children and other dependents .”
In compliance to the above rule
contained in memorandum of the Association,
NVS has made provision for payment of
Gratuity vide notification dated
30.05.2008, but notification for payment of pension (CCS Pension 1972)
to the employees of NVS appointed before 01.01.2004 has not yet been issued.
d)
For implementing the above programme,
NVS can use the present mechanism which is managing the CPF system in NVS. Thus
there would be no additional cost for the maintenance of pension establishment
because after implementation of CCS pension 1972, the CPF establishment will
not be needed.
e)
Therefore,
further delay in implementation of CCS Pension 1972 for the hard working
employees of NVS appointed before 01.01.2004 is shameful, cruel and quite
injustice as the employees, their families and children are
facing lot of hardships and financial crisis who have already retired, passed
away and are on the verge of retirement particularly.
f)
The Hon’ble Constitution bench of
Supreme Court of India are prayed to pass high orders to NVS, HRD and Deptt. of
Finance as well to implement CCS Pension 1972 for the NVS employees appointed
before 01.01.2004 utilizing the fund of CPF management share of NVS employees
appointed before 01.01.2004 by investing its fund which is lying unutilized in
crores and increasing day by day as it will not be paid to the employees once
CCS Pension 1972 is implemented.
16.
New
Pension Scheme (NPS) :
a)
In the mean time Union of India
sanctioned NPS for its employees appointed after 01-01-2004 and the same NPS
has been extended to the NVS employees mentioning that regular employees of NVS
may join NPS or may continue in CPF scheme, whereas, NPS is meant for the
employees appointed after 01-01-2004.
b) NPS (New Pension Scheme) – Now
changed into the name - National Pension System.
The Pension Fund Regulatory and
Development Authority Bill no. 25 of 2011 introduced in Lok Sabha wherein
it is mentioned on page 05 chapter III
in point 12 (3) that Notwithstanding anything contained in sub-section (1), the provisions of this Act
shall not apply to - vide 20 (d) - “persons appointed before the 1st
day of January 2004 to public services in connection with the affairs of the
Union, or to All – India Services Constituted Under Section 2A of the All -
India Services Act, 1951”.
The demand of NVS employees is to
implement CCS Pension 1972 for the teaching & non teaching employees of
JNVs/NVS appointed before 01-01-2004 at par with the employees of other
autonomous bodies/Union of India.
c)
It is not feasible to implement NPS
for the employees of NVS/JNVs appointed before 01-01-2004 due to the reasons
that –
i.
NPS is meant for employees appointed
after 01-01-2004 which is notified by Union of India on and also after
31-7-2008 .
ii.
Many of employees have already retired
or are on the verge of retirement or passed away. It is not possible to invest
in NPS account for long term having transferred their CPF without their
consent, as also these employees are in acute need of money
immediately to bear their day to
day maintenance including treatment and perform their liabilities.
iii.
Also the contribution of CPF of NVS
employees appointed before 01-01-2004 has been deducted @ 10 % of their Basic
Pay only from the date of beginning of their joining the service, whereas the
rates of contribution of NPS is 10 % of
their Basic Pay, Grade Pay and D.A. ( B.P. & G.P.) which is much higher
than the rates of CPF of NVS employees.
iv.
It is learnt that 40% amount of NPS is
to be invested by the NPS authority in the shares, incase of earning profit on
the invested amount, the same profit will be distributed to the employees
concerned.
17. Contributory Provident Fund (CPF)
:
i.
As per CPF rules the rate of CPF contribution
of employees and employers should be minimum 10% of their Basic Pay, Grade Pay
and D.A. (B.P. + G.P.), but in fact NVS has collected CPF @ 10% only on the
Basic Pay, the employees are also very much in loss due to less contribution of
CPF (Employees and Employers Share).
ii.
NVS has deducted 10% CPF (Employees
and Employers Share) from the basic pay of their employees same as the rate of
GPF (CCS Pension 1972) on the presumption that the GPF (CCS Pension 1972) will
be implemented sooner or later for the NVS employees appointed before
01-01-2004 by the Union of India.
iii.
There is a provision for payment of
pension also in the CPF Scheme if the amount of CPF (Employees and Employers
Share) as per its rates to be deducted and deposited in the office of the Commissioner,
Employees Provident Fund, (Ministry of Labour
& Social Welfare) Union of India, which has also not been done by the
Navodaya Vidyalaya Samiti and the amount of CPF ((Employees and Employers
Share) has been retained with them (NVS) ) on the presumption that the GPF (CCS
Pension 1972) will be implemented sooner or later for the employees of NVS
appointed before 01-01-2004 by the Union of India for which NVS/HRD is trying
their best time and again.
iv.
In nut shell it can be said that the
employees of NVS are deprived and in huge loss due to less contribution of CPF
(Employees and Employers Share) and by not depositing CPF contribution in the
office of the Commissioner, Employees Provident Fund (Union of India, Ministry
of Labor & Welfare).
v.
Therefore, the teaching & non
teaching employees of NVS appointed before 01-01-2004 deserve and are fully
entitled for CCS Pension 1972.
18. After repeated requests, replies
received from NVS/HRD/Deptt. of Finance, New Delhi State that this case is
under consideration in the Deptt. of Finance placed through HRD.
i.
Ministry of Finance conveys clearly
that the intention of Union of India Deptt. of Expenditure is that extension of
pension to the autonomous bodies is not
totally banned, but can be considered on the basis of merit in exceptional case
vide ref. no.- -------------dated: --.
ii.
Minutes of the meeting dated
28.01.2010 of Secretary(SE&L),Ministry of HRD
iii.
The Commissioner, NVS, New Delhi
requested to the joint Secretary (SE & L), HRD, New Delhi vide Ref. No.-
11-35/09-NVS(Admn)/203, dated: 12-05-2010 to reconsider the proposal to grant
CCS Pension 1972 to the NVS employees joined before 01-01-2004.
iv.
Brief note of 12-01-2012 for Minister
of HRD for meeting with NVS employees held on 16-01-2012.
19.
Comparative chart between CCS Pension
1972 (GPF), CPF & NPS:
Illustration
|
CCS Pension 1972 (GPF)
|
CPF (NVS)
|
NPS (w.e.f.-01.01.2004)
|
|||||||||||||||||||||
|
1
|
2
|
3
|
|||||||||||||||||||||
|
A. At the time of retirement to
be paid
1. Half of Basic Pay
(10000
2)
2. D.A. admissible on
the day – Now -65%.
Total
per month Rs.
Pension(
@ CCS 1972) to be paid
|
5000
3250
8250
|
A. Payment under CPF scheme is
a kind of bounty in nature.
|
A.
1.Employees
share
2. Employers share
Grand
Total Rs. 4692
|
||||||||||||||||||||
|
B. Other Benefits
1. On revision of pay by pay
commission basic pay enhanced by re-fixation of pension.
2. On increase of DA. DA on
pension will also increase.
3. After expiry of employees on
duty/after retirement, spouse gets 50% pension.
|
|
B.
1.Employees
share
Basic
Pay - 10%
10000
- 1000
2.Employers
share
Basic
Pay - 10%
10000
- 1000
Total
Rs. - 2000
|
B. To be paid adding interest of
60% on both contribution at the existing rate in the related financial year
at the time of leaving/retirement in bounty.
C. After-20yrs.
i)4692x12x20-60%=675648
ii)
After investment
Interest-45000/yr
iii)3750/month
D.
No
social security.
|
||||||||||||||||||||
|
C. Tenure of Payment of Pension (as
per VI CPC)
1. Full – 20yrs service
2. Half – 10yrs service
|
|
C.
After-20yrs.
1000x12x20=240000
After
investment Interest-24000/yr.
2000/month
D.
No
social security.
|
E.
40%
of both contributions to be invested in shares by pension regulatory fund
incase of earning profit the same will be distributed among the employees.
Pension
regulatory fund is organization managed by Private & Public Authorities.
|
||||||||||||||||||||
|
F. Pension Paid by Union of
India/Autonomous Bodies to its employees appointed before 01-01-2004 from the
contribution of employers share.
|
|
G. To be paid adding interest on
both contribution at the existing rate in the related financial year at the
time of leaving/retirement in bounty.
|
F. The procedures of payment of
these amounts are still vague.
G. The tenure of payment has not
yet been finalized by Union of Inida/Penson regulatory fund organization.
|
||||||||||||||||||||
20.
Comparative statement of KVS & NVS
showing parity & disparity :
So far parity and disparity
between KVS and NVS is concerned it is depicted below.
|
KVS
|
NVS
|
|||
|
A.
Parity
|
||||
|
1
|
Run
under Ministry of HRD Union of India.
|
1
|
Run
under Ministry of HRD Union of India.
|
|
|
2
|
Fund
fully added by Union of India
|
2
|
Fund
fully aided by Union of India
|
|
|
3
|
Autonomous
body of Union of India
|
3
|
Autonomous
body of Union of India
|
|
|
4
|
Registered
under society registration
Act
–XXI–1860.
|
4
|
Registered
under society registration
Act
–XXI–1860.
|
|
|
5
|
Classes
Run - classes - up to XII.
|
6
|
Classes
run - classes - up to XII.
|
|
|
B.
Disparity
|
||||
|
1
|
Teaching
& Non Teaching employees are getting the benefits of CCS Pension 1972
appointed before 01-01-2004.
|
1
|
CPF
scheme 10% on the basic pay only.
|
|
|
2
|
Working
hours – 06 hrs
(9.00
AM to 4.00 PM).
|
2
|
Working
hours – 16 hrs
(6.00
AM to 10.00 PM).
|
|
|
3
|
Co-education
day school.
|
3
|
Co-education
fully residential school.
|
|
|
4
|
Responsibility
of students on teachers & staff
- 6 hrs.
|
4
|
Responsibility
of students on teachers & staff - 24 hrs.
|
|
|
5
|
Off
day – Sunday & 2nd Saturday.
|
5
|
Off
day – On Sunday , only academic activities are off, but other
responsibilities remain on the teachers & staffs.
|
|
|
7
|
Teaching
students – Wards of Central Govt.
Transferable
Employees.
|
7
|
Teaching
students – Talented deprived students of rural remote areas of all over the
country.
|
|
|
8
|
Performance
of Results - Medium
|
8
|
Performance
of Results – Best among all the Private & Public Sector Schools of Inida.
|
|
21. PERFORMANCE
OF NVS
As
on date, performance of NVS is best among all the Public & Private
educational institutions in the field of
secondary and senior secondary classes in
the country which is the result of hard
and sincere labour of emoloyees of NVS, thus they fully deserve due recognition.
NVS
has achieved the objectives of setting
up this organization as envisaged in the above para.
22. Violation
of Article 14 of constitution of India providing equality before law, as all
the educational institutions run under Govt. of India are getting CCS(Pension),
1972 except NVS employees appointed before 01.01.2004.
23.
At last having no alternative Sri. P.
N. Mishra, an executive member of AINVSA, Ranchi Unit filed a writ in the
Hon’ble Jharkhand High Court at Ranchi vide, writ No.- WP(S) 4946/2008, duly
authorized by AINVSA, subsequently, 9305 ( 07.12.2011 – 38 + 8595 & 23.12.2011
- 669) employees had also filed affidavits & Wakalatnamas with the above
writ as co-petitioner with a pray to pass orders to implement CCS Pension 1972 for
all the appointees prior to 01-01-2004, which is dismissed by the Hon’ble Court
saying that there is no merit in this case & also dismissed 9305
co-petitions saying that co-petitions (9305) filed in the fag end, without
mentioning the reason of dismissal with rules, laws etc.
24.
And in protest of verdict of Hon’ble
Jharkhand High Court at Ranchi an SLP (Civil) bearing no.-19102/2012 was filed
in Hon’ble Supreme court of India by the petitioner Sri P.N. Mishra represented
through AINVSA (RJ) for justice.
This case was heard by the
Hon’ble bench on 09.08.2012 and graciously granted time on the request of the
learned Council for the petitioner to file a fresh brief as discussed duly
affidavit in the Hon’ble Supreme Court of India to place for hearing on the
next date.
25.
Reg.
No.-153/00082/2012-13 of AINVSA(RJ)
Pancha Nand Mishra
Petitioner
2 comments :
Pls provide the latest position /stand of MHRD GOI. Here at ISM we are facing a similar problem.
What is current position ? MHRD New Delhi should take positive steps immediately in view of the GOI policy of providing Pension to senior citizens.
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