A.I.N.V.S.A : December 2012

Dear

r frienrds of NVS

There are three cases or so filed in S.C for PENSION GOI. BY:

(A) WRIT PETITION BY AINVSA (REDDY GROUP)
(B) WRIT PETITON BY THE EFFORTS OF PUNE REGION
(C) SPECIAL LEAVE PETITION( SPL) BY P.N MISHRA

Read the three write ups of this blog consecutively for a comparative study of all these three cases. It is suggested that more and more P.I.Ls ( Public Interest Litigations) should also be filed by the employees of NVS to put pressure on GOVT OF INDIA to grant us Old Pension GOI 1972 scheme.

THE WRIT PETITION FILED BY AINVSA ( REDDY GROUP ) IS AS UNDER...read further pages archives to know the drafts of the later two cases as well.

SYNOPSIS

The Human Resource Development Ministry, Government of India has concluded the struggles and sufferings of the employees of the Jawahar Navodayas Vidyalaya Samiti (JNVS for short) by inflicting upon them agonies. The pension Scheme of 2009 introduced in JNVS creates two classes of employees namely those who joined prior to 1-4-2009 and the ones who joined after the said date. In the latter case, the pension is mandatory while in the former, it is optional. Besides, there is no certainty about pension so far as the former class of employees is concerned. There is no provision for contribution by the employer in the former case. The whole Scheme is discriminatory. On the top of all, the pension Scheme of 2009 does not provide for family pension.

The Y. N. Chaturvedi Committee Report of 2001 and the 154^th Report of the Parliamentary Committee, recommendations made by the Human Resource Development Ministry from time to time called for the introduction of the CCS Pension Scheme, 1972 as was applicable to the Kendriya Vidyalays and similar such autonomous bodies and organizations. The rationale for such recommendation was that the employees of the JNVS are serving for more than 12-16 hours a day in residential system of education and employed in remote and far-flung areas where they don’t have proper facilities of primary education of their children and so, they needed some social security.

It is important to mention here that the Navodaya Vidyalaya Samiti had employed Actuary Bhudev Chattarjee to work out the expenditure involved and financial viability of implementation of the CCS Pension Scheme, 1972. The report submitted by the Actuary concluded that if the employees share of contribution upto 31-3-2005 (Rs.103.82 a crores) is transferred to the pension fund by 31-3-2006 and an annual contribution @ 18% of salary is made on monthly basis w.e.f.1-4-2006, it will be financially viable to adopt the 1972 scheme. This Hon’ble Court may be pleased to call for the report of the Actuary for perusal.

It is, respectfully submitted that Navodaya Vidyalayas have emerged as leaders in the secondary school system in the country. It is not only important to recruit competent teachers but also to retain them in service. Since the Navodaya Vidyalayas are residential Schools the work-schedule of the employees is more demanding. Quite a few number of teachers and principals had resigned due to non-availability of the pension scheme. It was in view of this that the Ministry of Human Resource Development proposed to introduce pension scheme for the employees of Navodaya Vidyalayas Samiti on the pattern of central civil services ( pension) Rules, 1972 as is applicable to the employees of similar organizations like Kendriya Vidyalayas and the Central Tibetan School Administration etc and prepared and submitted cabinet note in this regard in 2006, which may be called for by this Hon’ble Court for perusal.

In the facts and circumstances obtaining in the present case the following substantial questions of law of general public importance are legitimately due for consideration of this Hon’ble Court:

i) In view of the fact that the respondents initially promised pension-cum-Gratuity/CPF to its employees, whether denial of such pensionary benefit to the employees is not arbitrary and unreasonable as a large number of employees initially left their pensionable jobs and joined JNVS on deputation and were subsequently absorbed on permanent basis?

ii) Whether not allowing CCS pension 1972 benefits to the employees of the JNVS when such benefits are available to the employees of the KVS and similar such schools controlled and financed by the Human Resource Development Department of the Government of India is not discriminatory and arbitrary and per se illegal?

iii) In view of the fact that the JNVS were started in 1985 whether cut-off date provided in the New Pension-Scheme i.e 1-4-2009 has a rational nexus with the object sought to be achieved i.e ameliorating and enhancing the service conditions of the JNVS employees?

iv) Whether the cut-off date of 1-4-2009 in the facts and circumstances of the case is not artificial and based on no sound principle of law?

v) Whether the constitutional/fundamental right to equality guaranteed by Articles 14 and 16 of the constitution of India can be nullified on the ground that implementation of such equality would entail financial implications?

vi) Whether denial of the CCS Pesnion Scheme, 1972 to the employees of the Navodaya Vidyalaya Samiti when similar educational autonomous bodies fully funded by the Central Government have been admitted to it, is not a direct affront to Articles 14 and 16 of the constitution of India?

vii) Whether the New Pension Scheme, 2009 introduced by the central Government for the Navodaya Vidyalaya Samiti is in sync with the raison d’etre of pension enunciated by this Hon’ble Court in D.S. Nakara case, reported as (1983) 1scc, 305?

LIST OF DATES

1985-In 1985, the Govt., of India decided to set up good quality residential schools , one in each district, essentially to provide good quality of education to bright children from rural area. Thus, the Navodaya Vidyalaya Samiti (JNVS) for short) was established as an autonomous body under the administrative control of Department of secondary & Higher Education, Ministry of Human Resource Development to set up and administer Jawahar Navodaya Vidyalayas under the scheme. The JNVS are fully residential, co-educational institution providing free education including boarding and lodging, text books, uniform etc upto the Senior Secondary stage. Thus, the JNVS are addressing the needs of talented rural children, who may otherwise be deprived of good quality education. Thus, the Jawahar Navodaya Vidyalayas started off as Model Schools initially.

1986-Being residential schools, the work schedule of the staff of JNVS is more demanding in comparison to that of any day schools like Kendriya Vidyalayas (KVS for short). The JNVS teachers serve at far off places where the facilities for even the primary education of their children are not available and even through the Government of India had approved the extension of the pay structure of the Central Government Employees to the teaching and non-teaching staff of JNVS, there was no pension available to them on the pattern of the government of India i.e CCS pension scheme of 1972. This was in spite of the ‘National Policy on Education’, 1986 which envisaged as follows:

“All teachers in Government and Local bodies and in institution created by Act of parliament/state legislature will be eligible for retirement and medical benefits identical with Government servants. Teachers in aided and private institutions will be eligible for such benefits in accordance with such directions as may be issued by the Government from time to time”. And also inspite of Rule 149 (4) (iv) of General Financial Rules of the government of India which provides as follows:

”All Autonomous Bodies or granted institutions which receive more than 50% of their recurring expenditure in the form of grant –in-aid should formulate terms and conditions of service of their employees so that by and large they are broadly comparable to those applicable to similar categories of employees in Central Government”.

9-1-86 and 14-2-86-Initially, appointment to the posts in the school’s were made with option to the employees to joint either the CPF Scheme or Pension Scheme. Appointment letter dt.9-1-86 and 14-2-86 clearly shows this subsequently. This option was not mentioned in the appointment letter initially. However, large number of employees joined the JNVS or deputation having Pension Scheme and were later absorbed in the JNVS. The respondents, estated above back tracked on the Pension Scheme.

1-5-87-As stated above, the JNVS came into being in 1985 itself with the sanction of two JNVS at Jhajjar and Amravati along with posts therein. Nevertheless, the Jawaharlal Navodaya Vidyalaya Samiti was registered under the societies Registration Act, in February 1986.

The IVth Pay Commission in para 9.8 recommended that “In so far as the CPF beneficiaries still in service on January1, 1986 are concerned, we recommend that they 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. The CPF beneficiaries who decide to continue to remain under that scheme should not be eligible on retirement for ex-gratia payment recommended by us for the CPF retirees.”

The Ministry of personnel, Public Grievances and Pension vide memorandum dt.1-5-1987 accepted the recommendation and allowed all the central Government employees, including central Autonomous Bodies Pension w.e.f 1-1-86. The option was not allowed to the JNVS employees on the ground that the Samiti had not come into existence on 1-1-1986 even though it had already come into existence 1985 itself as stated above.

14-8-1989-The employees of the JNVS agitated the issue of admissibility of the Pensionary benefits to them right from the beginning as it was given to the employees of the Kendriya Vidyalayas and the Central Tibetan School Administration.

Vide letter dt. 14-8-1989 the samiti informed that introduction of Pension Scheme in the samiti was under consideration.

12-1-1992-It is pertinent to mention here that the executive committee of the Navodaya Vidyalayas samiti at a Meeting held on 12-1-92 resolved that:

“The committee approved the proposal to adopt the central Govt. Service Rules and regulations for its employees mutatis mutandis till Samiti frames it own rules and Regulations.”

December 1998-By letter dt. December, 1998 the Human Resource Minister wrote to the finance Minister stressing the need for implementation of the 1972 pension scheme in favour of the JNVS employees.

5-2-1999-The finance Minister by his reply dt. 5-2-1999 did not agree with the request of the Human Resource Development Minister, chiefly on the ground of financial implications.

2001- It is further significant to point out here that the Y.N.Chaturvedi Committee Constituted for Review of Management structures, operating Mechanism of Navodaya Vidyalaya samiti also in para 5.08 of the report strongly highlighted the grievances of the JNVS employees in the following manner;

“yet another aspect requiring attention is in regard to certain financial facilities to teachers. The experience gathered clearly shows that many teachers don’t find working for Navodaya Vidyalayas easy and congenial. Many teachers every year leave the service of JNVS for various reasons. One reason is that in the Navodaya Vidyalayas the teachers have difficulty in arranging primary education of their children. They are cut off from the rest of the society if they work in Navodaya Vidyalas. Of course many teachers covet possibility of additional income through coaching, tuitions etc and possibility of faster advancement if they live in urban areas. In view of these facts it is necessary to think of some financial facilities to teachers. The most prominent of such facilities is making their service pensionable which is already so in KVS. THE Review Committee would strongly recommend accordingly. Also since all the Navodaya vidyalays are in distant rural areas, the government should consider sanctioning a rural area allowance to those who work in Navodaya Vidyalayas. It will be fair to compensate these employees for coming in Navodya Vidyalayas. It will be fair to compensate these employees for working in an environment of inadequate facilities.”

2005-The Parliamentary committee Report on functioning of Navodaya Vidyalayas presented to the Lok Sabha on 2^nd March, 2005 and Rajya Sabha on 3^rd March, 2003 on pensionary benefits to JNVS Employees held that:

“The committee reiterates its recommendation made in its 154^th Report for provision of pensionary benefits to the JNVS employees on the same level as being given to the KVS employees. The Committee strongly feels that JNVS employees need to be governed by similar service conditions including pensionary benefits applicable to KVS employees. The committee fails to under stand the rationale for adoption of a discriminatory approach by the Government towards an autonomous body having broadly speaking the same mandate as the other. The committee is not convinced by the contention of the Department that an organization having contributory Provident fund Scheme should continue to be governed by that scheme as the new Pension Scheme was only applicable to the organizations which earlier had GPF-CUM-Pension Scheme prior to 1-1-04. The committee would like to draw the attention of the Department towards similar recommendation made by the expert committee constituted under the chairmanship of shri Y. N Chaturvedi in June 2001 to review the Management, structure and operating mechanism of JNVS. The committee would like to emphasize that the department should approach the Ministry of finance once again in this regard.”

27-9-2005-A cabinet note on introduction of pension scheme was prepared and sent to the Ministry of Human Resource Development on 27-9-2005. This Hon’ble Court may be pleased to call for the cabinet note dt. 27-9-2005 on introduction of CCS (Pension Scheme) in JNVS.

It is significant to note here that the Samiti engaged Bhudev Chatterjee, Actuary for the purpose of working out financial implication of implementation of CCS Pension scheme. The Actuary submitted his report in the year 2005 itself and found that the implementation of the 1972 scheme was financially viable.

6-3-2006-The Joint Commissioner (Admn) thereafter vide letter dt. 6-3-2006 apprised the Director UT (1) Ministry of Human Resource Development Department of secondary and Higher education that if the employees share of contribution upto 31-3-2005 (Rs.103.82) crores) were transferred to the pension fund by 31-3-2006 and an annual contribution @ 18% of salary were made on monthly basis w.e.f 1-4-2006, it would be financially viable to adopt the pension scheme in Navodaya Vidyala Samiti.

26-4-2008- The petitioner made representation before the cabinet secretary, Government of India, central secretariat for implementation of the CCS Pension Scheme 1972 in JNVS.

17-6-2008- The petitioner made further representation dt. 26-4-2008 seeking similar relief.

4-8-2009-Finally, the Government of India introduced the New Pension Scheme for the JNVS employees effective from 1-4-2009. Those who were appointed prior to 1-4-2009 were given an option to join the scheme. The regular employees appointed on regular basis prior to 1-4-2009 have been placed in Tier-II to which the employer will not made any contribution. There is no provision for family pension and death gratuity etc. Thus, the whole struggle of the JNVS employees for introduction of the CCS Pension Scheme, 1972 has been brought to a nought. The New Pension Scheme introduced in JNVS is discriminatory and contrary to the interest of the JNVS staff. Besides, the scheme also is not certain about its applicability to the employee joining prior to 1-4-2009.

9-2-2012- One of the employees of JNVS filed W.P(S) No.4946/2008 seeking the relief of issuance of direction to the respondents to implements CCS Pension Scheme,1972 and also to quash the New Pension Scheme being arbitrary and discriminatory before the Jharkhand High Court which has been dismissed by order dt. 9-2-2012.

It is submitted that filing of petitions before the central Administrative Tribunal or High Courts is likely to have conflicting orders and hence, it would be appropriate that this Hon’ble Court may be pleased to settle the issue in the larger interest of the employees of the JNVS.

In view of the above the petitioner most respectfully submits as follows:

a) The issue involved in the present case is with regard to the future of about fifteen thousand employees of the Navodaya Vidyalayas.

b) Navodaya Vidyalaya Samiti is an autonomous body 100% funded by the Central Government. Kendriya Vidayalayas, Sainik Schools, Central Schools etc. are also autonomous bodies 100% funded by the Central Government. Hence, there is no justification that there should be discrimination against the employees of the Navodaya Vidyalayas Samiti in the matter of grant of Pension which has been an issue right since its inception in 1985.

c) The Navodaya Vidyalayas have been established for providing good quality modern education with emphasis on culture and inculcation of values and to promote national integration through Hindi to non-Hindi speaking states and vice-versa. The teachers and other staffs have accordingly been appointed to serve this solemn purpose. As stated above and as pointed out by various committies, the staffs of Navodaya Vidyalaya Samiti have to suffer a lot by living away from their families and in the remote areas. The new pension scheme introduced by the Government, instead of alleviating their sufferings has aggravated it. The new pension scheme, interalia doesnot provide for any death gratuity, medical benefits, family pension etc. The employees who joined the Navodaya Vidyalayas Samiti prior to 1-4-2009 are entitled to the benefit of contributory provident fund.

In view of the fact that Navodaya Vidyalays have emerged as leader in the secondary school system in the country and that their contribution to the nation has been immense, the new pension scheme introduced by the Central Government for the employees of the Navodaya Vidyalayas is a negation of the purpose for which they have been established. The non introduction of the 1972 pension scheme and introduction of the New Pension Scheme, 2009 to the employees of the Navodaya Vidyalayas has resulted in an invidious discrimination to them which calls for this Hon’ble Court’s kind consideration and indulgence.

7-5-2012-Aggrieved by the negative attitude of the Govt. in implementing the 1972 Pension Scheme in favour of the employees of Navodaya Vidyalayas the petitioner association passed a resolution dt. 7-5-2012 and authorized the secretary for filing Writ Petition before this Hon’ble Court. The association however, came to know in the month of July 2012 that the Jharkhand High Court had already passed an order in the matter and the petitioner therein was contemplating bringing the matter before this Hon’ble Court. The petitioner association thereafter started collecting documents of the case before the Jharkhand High Court and after collecting the relevant documents the present petition is being filed. In the meanwhile the petitioner has come to know that SLP (C) No.19102/2012 filed against the order passed by the Hon’ble Jharkhand High Court is pending admission hearing before this Hon’ble Court. The petitioner therefore, would pray for tagging the present petition with SLP (C) No.19102/2012 in the interest of justice.

20-11-2012-Hence, this W.P.

Annexure P12

W.P.(S) No.4946 of 2008

------

In the matter of an application under Article 226 of the Constitution of India.

Shri P.N.Mishra ……Petitioner

The Union of India & ors …….Respondent

………..

For the Petitioner :Mr. Manohar Lal Sharma

For the respondent :Md. Mokhtar Khan, Prabhash Kumar.

Present : HON’BLE THE CHIEF JUSTICE

HON’BLE MR. JUSTICE APARESH KUMAR SINGH

----------

C.A.V.on09.02.2012 Pronounced on:02.03.2012

Reportable

I.A No.3585 of 2011

Aparesh Kumar Singh, j The instant interlocutory application has been filed on behalf of the petitioner praying therein to implead 8598 employees of the Navodaya Vidyalaya Samiti as petitioners in the present writ petition.

The petitioner has unnecessarily, at the fag end and at a very late stage sought to implead about 8598 employees/staff of the Navodaya Vidalaya Samiti situated in different parts of the country as petitioners in the present writ petition. Moreover, petitioner has unnecessarily without any such authorization taken upon himself as representative and implead all the employees of the Navodaya Vidyalaya Samiti as co-petitioners, although non of them has come forward on their own before this court.

The said prayer is totally misconceived and cannot be allowed. Accordingly, the said I.A No. 3585 of 2011 seeking impleadment of 8598 employees of the Navodaya Vidyalaya Samiti is , therefore dismissed as without any basis.

W.P(S) No.4946 of 2008

1. This writ petition has been preferred by the sole petitioner Sri P. N. Mishra seeking issuance of writ, directions, directions commanding upon the respondents to implement and adopt uniform and consistent pension Rule for entire teaching and non-teaching staff of the Navodaya Vidyalaya as has been adopted in respect of other educational institutions of the Human Resource Department, Government of India.

.............................................................copy of dismissed writ petition of PN MISHRA

True Copy

ANNEXURE P11

(An Autonomous Organization under

Ministry of Human Resource Development,

Department of School Education & Literacy),

Government of India

A-28, Kailash Colony

NEW DELHI? 110048

Email: Navodaya@ren02.nic.in

:Navodaya @ nda.vsnal.net.in

Website:Navodaya.nic.in

F.No.18-1/2008-JNVS (Admn.)

04.08.2009 Dated:

NOTIFICATION

The ministry of human Resource Development, department of School Education & Literacy, vide letter No.F.5-7/98-UT-1 dt.14^th August 2008, has conveyed the approval of the Union Cabinet for introduction of the New Pension Scheme of Govt. of India to all regular Navodaya Vidyalaya Samiti (JNVS) employees joining JNVS after its notification by the Samiti and giving an option to the regular employees of JNVS as on the date of notification to continue with the existing CPF Scheme or to join the New Pension Scheme. In the latter case, the amount accumulated in the CPF Account of the employee will be transferred to the pension fund under the New pension Scheme.

Accordingly, it is hereby notified that the New pension Scheme shall be applicable to all the regular employees of JNVS and will come into force w.e.f 01.04.2009. All regular employees of JNVS joining on or after 1.4.09 shall become members of NPS. However, those employees who had joined JNVS on regular basis before 1.4.09 shall have the option either to continue with the existing CPF Scheme or to join the New Pension Scheme. In case of opting for the New Pension Scheme. The amount accumulated as on 1.4.2009. in the CPF Account of the employees, will be transferred to the pension fund under the New Pension Scheme. This option can be exercised within three months from the date of issue of this notification in the prescribed format (i.e. form of option) appended herewith. New Pension Scheme notified by department of Economic Affairs, Ministry of Finance on 22.12.2003 and introduced vide D/O Expenditure O.M.No.1(7)(2)/2003 dated 7.1.2004, and as amended from time to time, will apply mutates mutendis in the JNVS.

Some of the salient features of the New Pension Scheme are as under:

1) (a) The New Pension Scheme will have two tiers? Tier-I and II.

(b) Contribution to Tier-I is mandatory, whereas contribution to Tier-II will be optional and at the discretion of employees.

(2) (i) In Tier-I, employees will have to make contribution of 10% of their basic pay plus Dearness Pay plus DA ( Plus NPA, if any), in the pre-revised pay scales and /or revised Pay plus Grade Pay plus DA admissible in the revised pay scales, which will be deducted from his salary bill every month by the PAO concerned . The Samiti will make an equal matching contribution.

(ii) The contributions payable by the employees and those paid by the Samiti shall be rounded off to the nearest rupee.

(iii) Any recovery in the subsequently date after 1.4.2009, on account of short receipt/deductions of the employees and samiti?s contribution, etc. shall form part of the pension fund, under the New Pension Scheme. The outstanding DPF advances recovered after 1.4.2009 shall also form part of the pension fund.

(3) Recovery will commence from the month following the month of joining the service in JNVS.

(4) No withdrawal is permissible from Tier-I account.

(5) (i) Tier-I contributions (and the investment returns) will be kept in a non-withdrawal Pension Tier-I Account.

(ii) Tier-II contributions will be kept in a separate account that will be withdrawable at the option of the employee.

(iii) The Samiti will not make any contribution to Tier-II account.

(6) Tire II is not operational as on date.

(7) A separate Cell will be set up at JNVS (Hqurs.) to monitor and regulate the pension fund. This Cell will function as central Record Keeping Agency for maintenance of the record, accounts etc. and also to undertake the works regarding implementation of New Pension Scheme in JNVS.

(8) (i) Exit from the scheme will be normally on attaining the age of 60 years or after the age of 60 years from the Tier-I of the scheme.

(ii) At normal exit, it would be mandatory for the employees to invest 40 percent of pension wealth in an annulty (form an IRDA. Regulated Life Insurance Company) which will provide for pension for the lifetime of the Employees and their dependent parents/spouse.

(iii) In the case of employees who leave the scheme before attaining the age of 60 years, the mandatory annutization would be 80% of the pension wealth.

(9) The existing provisions of leave encashment will continue to be applicable to employees who join service in JNVS on or after 1.4.2009, as the benefit of encashment of leave salary is not a part or retirement benefits admissible under the extent rules.

(10) Individuals will get an Annual statement containing the details of opening balance, monthly contributions, Samiti?s matching contribution and interest earned.

(11) Accumulations at the credit of subscribers to the New Pension Scheme for all the regular employees of JNVS shall carry interest at the rate to be notified by the competent authority from time to time.

(12) As the New Pension Scheme is based on defined contribution, the length of qualifying service is not relevant. Thus, no credit of casual service shall be allowed to casual workers on their regularization against Group ?D? posts on or after 1.4.2009.

(13) It is further clarified that:-

(i) With effect from 1^st June, 2008 National Securities Depository Ltd.(NSDL) has started functioning as the central Record keeping Agency (CRA) for the NPS and it is they who shall be allotting the permanent Retirement Account Number (PRAN) and maintaining the accounts of individual NPS subscribers.

(ii) Once the pension corpus is transferred to the PFRDA regulated NPS architecture and invested therein, there would be no interest payable on the corpus so transferred. Returns thereon would, thereafter, be market determined. Further, investment of NPS contributions of subscribers shall take place in accordance with the investment guidelines of the Ministry of Finance for non-Government Provident Funds and Superannuation Funds. Ministry of Human Resource Development may, however, decide as regards the interest payable on the accumulated pension corpus (and to the underlying subscribers) prior to its actual transfer to the NPS architecture.

(Alok Verma)

Joint Commissioner (Admn.)

1. All Jawahar Navodaya Vidyalayas

2. All Regional Offices of JNVS.

3. All Navodaya Leadership Institutes.

4. All Officers at JNVS(Hqrs.)

Copy to:-

1. PS to Hon?ble HRM & Chairman, JNVS, Shastri Bhawan, New Delhi Joint Secretary (SE), Ministry of HRD, Department of School Education & Literacy, Shastri Bhawan, New Delhi.

Joint Commissioner (Admn.)

FORM OF OPTION

In pursuance of the Navodaya Vidyalaya Samiti Notification No.F.18-1/2008-JNVS (Admn.) dated 4^th August 2009, regarding introduction of the New Pension Scheme of the Govt. of India, for all the regular employees of JNVS who had joined before 01.04.2009, my option, my option either to elect the New Pension Scheme or for continuing with the existing CPF Scheme is as under:-

*i) I, _________________(Name) hereby elect the New Pension Scheme w.e.f.01.04.2009.

*ii) I,_________________(Name) hereby elect to continue under the existing CPF Scheme of JNVS.

Signature:_________________

Name:____________________

Designation:_________________

Name of Unit (viz JNV/NLI/RO/JNVS Hqrs:______________

CPFACCOUNT No.:_________________________

Date:_______________

Place:_______________

* To be scored out, if not applicable.

Note:

i) Option once exercise shall be considered as final.

ii) This option can be exercised only by those employees who have joined JNVS on regular basis before 01.04.2009.

iii) If an employee does not exercise an option within three months from the date of notification i.e.04.08.2009, it will be presumed that the employees is not willing to join the New Pension Scheme.

True Copy
IN THE SUPRME COURT OF INDIA AT NEW DELHI

CIVIL ORIGINAL JURISDICTION

W,P (C) No. /2012

IN THE MATTER OF:

All India Navodaya Vidyalaya

Staff Association (Regd)

Through its General Secretary

At Jawahar Navodaya Vidyalaya

Mamnoor, Andhra Pradesh Petitioner

1. The U.O.I

Through the Secretary

Humans Resource Department, New Delhi

2. The Commissioner, Navodaya Vidyalaya Samiti

At-28, Kailash Colony

New Delhi-110048 Contesting Respondents

WRIT PETITION UNDER ARTICLE 32 OF

THE CONSTITUTION OF INDIA

The humble Petition of the

petitioner above-named

Most Respectfully Showeth:

1. That this writ petition is being filed 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 the Jawahar Navodaya Vidyalaya Samiti (JNVS for short).

2. That the petitioner is a registered Association of the Jawahar Navodaya Vidyalaya Samiti consisting of the employees of the Navodaya Vidyalays all over the country. The Association was formed to look after the interests and espouse the cause of employees of the Navodaya Vidyalayas. The employees of the Navodays Vidyalayas being Indian citizens are entitled to file the present writ petition collectively through the Petitioner Association.

3. That the respondents are agencies and instrumentalities of the state and hence, amenable to the writ jurisdiction of this Hon’ble Court.

4. QUESTIONS OF LAW:

That the present case raises the following substantial questions of law of general public importance:

iv) Whether the cut-off date of 1-4-2009 in the facts and circumstances of the case is not artificial and based on no sound principle of law?

5. That the petitioner does not have any other efficacious and alternative remedy. The issues involved in the present case pan-India in nature. The issue was raised earlier before various benches of CAT and the New Pension scheme was challenged before the Hon’ble High Court of Jharkhand at Ranchi as well. The Hon’ble High Court has negatived the challenge resulting in S.L.P (C) 19/02/2012 before this Hon’ble Court. More petitions are likely to be filed as issue involves interests of over 15000 employees filing of petitions before various High Courts would might lead to conflict in pronouncement of law. Hence, the petition is being filed before this Hon’ble Court to avoid conflicting orders. Besides, Article 32 of the constitution is itself a fundamental right and the petitioner being a registered body consisting of citizens of India as its members are entitled to invoke this fundamental right.

6) FACTS OF THE CASE:

That the facts giving rise to the present petition or as follows:

a) In 1985, the Govt., of India decided to set up good quality residential schools , one in each district, essentially to provide good quality of education to bright children from rural area. Thus, the Navodaya Vidyalaya Samiti (JNVS) for short) was established as an autonomous body under the administrative control of Department of secondary & Higher Education, Ministry of Human Resource Development to set up and administer Jawahar Navodaya Vidyalayas under the scheme. The JNVS are fully residential, co-educational institution providing free education including boarding and lodging, text books, uniform etc upto the Senior Secondary stage. Thus, the JNVS are addressing the needs of talented rural children, who may otherwise be deprived of good quality education. Thus, the Navodaya Vidyalayas started off as Model Schools initially.

b) Being residential schools, the work schedule of the staff of JNVS is more demanding in comparison to that of any day schools like Kendriya Vidyalayas (KVS for short). The JNVS teachers serve at far off places where the facilities for even the primary education of their children are not available and even through the Government of India had approved the extension of the pay structure of the Central Government Employees to the teaching and non-teaching staff of JNVS, there was no pension available to them on the pattern of the government of India i.e CCS pension scheme of 1972. This was in spite of the ‘National Policy on Education’, 1986 which envisaged as follows:

c) Initially, appointment to the posts in the school’s were made with option to the employees to joint either the CPF Scheme or Pension Scheme. Appointment letter dt.9-1-86 and 14-2-86 clearly shows this subsequently. This option was not mentioned in the appointment letter initially. However, large number of employees joined the JNVS or deputation having Pension Scheme and were later absorbed in the JNVS. The respondents, as stated above, back tracked on the Pension Scheme.

True typed copies of appointment letter dt. 9-1-86 and 14-1-86 are annexed, herewith, as Annexure P1 Colly.

d) As stated above, the JNVS came into being in 1985 itself with the sanction of two JNVS at Jhajjar and Amravati along with posts therein. Nevertheless, the Jawaharlal Navodaya Vidyalaya Samiti was registered under the societies Registration Act, in February 1986.

e) The employees of the JNVS agitated the issue of admissibility of the Pensionary benefits to them right from the beginning as it was given to the employees of the Kendriya Vidyalayas and the Central Tibetan School Administration.

Vide letter dt. 14-8-1989 the samiti informed that introduction of Pension Scheme in the samiti was under consideration.

A true typed copy of the letter dt. 14-8-1989 is annexed, herewith, as (Annexure P2)

f) It is pertinent to mention here that the executive committee of the Navodaya Vidyalayas samiti at a Meeting held on 12-1-92 resolved that:

“The committee approved the proposal to adopt the central Govt. Service Rules and regulations for its employees mutatis mutandis till Samiti frames it own rules and Regulations.”

A true typed copy of the minutes of meeting dt. 12-1-1992 is annexed, herewith, as (Annexure P3).

g) By letter dt. 11^th December, 1998 the Human Resource Minister wrote to the finance Minister stressing the need for implementation of the 1972 pension scheme in favour of the JNVS employees.

A true typed copy of letter dt. 11^th December 1998 is annexed herewith, as Anenxure P4.

h) The finance Minister by his reply dt. 5-2-1999 did not agree with the request of the Human Resource Development Minister, chiefly on the ground of financial implications.

A true typed copy of reply letter dt. 5-2-99 is annexed herewith as Annexure P5.

i) It is further significant to point out here that the Y.N.Chaturvedi Committee Constituted for Review of Management structures, operating Mechanism of Navodaya Vidyalaya samiti also in para 5.08 of the report strongly highlighted the grievances of the JNVS employees in the following manner;

A true typed copy of extract of paras 5.8.of the Y.N. Chaturvedi Report of the year 2001 dt. nil is annexed here with, as Annexure P6.

j) The Parliamentary committee Report on functioning of Navodaya Vidyalayas presented to the Lok Sabha on 2^nd March, 2005 and Rajya Sabha on 3^rd March, 2003 on pensionary benefits to JNVS Employees held that:

The relevant extract of the 154^th report of the Parliamentary committee is annexed herewith as Annexure P7.

k) A cabinet note on introduction of pension scheme was prepared and sent to the Ministry of Human Resource Development on 27-9-2005. This Hon’ble Court may be pleased to call for the cabinet note dt. 27-9-2005 on introduction of CCS (Pension Scheme) in JNVS.

l) The Joint Commissioner (Admn) thereafter vide letter dt. 6-3-2006 apprised the Director UT (1) Ministry of Human Resource Development Department of secondary and Higher education that if the employees share of contribution upto 31-3-2005 (Rs.103.82) crores) were transferred to the pension fund by 31-3-2006 and an annual contribution @ 18% of salary were made on monthly basis w.e.f 1-4-2006, it would be financially viable to adopt the pension scheme in Navodaya Vidyala Samiti.

A true typed copy of letter dt. 6-3-2007 is annexed herewith as Annexure P8.

m) The petitioner made representation before the cabinet secretary, Government of India, central secretariat for implementation of the CCS Pension Scheme 1972 in JNVS.

A true typed copy of representation dt. 26-4-2008 is annexed herewith as Annexure P9.

n) The petitioner made further representation dt. 17-6-2008 seeking similar relief.

A true typed copy of representation dt. 17-6-2008 is annexed herewith as Annexure P10.

o) Finally, the Government of India introduced the New Pension Scheme for the JNVS employees effective from 1-4-2009. Those who were appointed prior to 1-4-2009 were given an option to join the scheme. The regular employees appointed on regular basis prior to 1-4-2009 have been placed in Tier-II to which the employer will not made any contribution. There is no provision for family pension and death gratuity etc. Thus, the whole struggle of the JNVS employees for introduction of the CCS Pension Scheme, 1972 has been brought to a nought. The New Pension Scheme introduced in JNVS is discriminatory and contrary to the interest of the JNVS staff. Besides, the scheme also is not certain about its applicability to the employee joining prior to 1-4-2009.

A true typed copy of notification dt. 4-8-2009 is annexed, herewith as Annexure P11.

p) One of the employees of JNVS filed W.P(S) No.4946/2008 seeking the relief of issuance of direction to the respondents to implements CCS Pension Scheme,1972 and also to quash the New Pension Scheme being arbitrary and discriminatory before the Jharkhand High Court which has been dismissed by order dt. 9-2-2012.

A true typed copy of order dt. 9-2-2012 passed by the Hon’ble High Court of Jharkhand is annexed, herewith as Annexure P12.

In view of the above the petitioner most respectfully submits as follows:

i) The issue involved in the present case is with regard to the future of about fifteen thousand employees of the Navodaya Vidyalayas.

ii) Navodaya Vidyalaya Samiti is an autonomous body 100% funded by the Central Government. Kendriya Vidayalayas, Sainik Schools, Central Schools etc. are also autonomous bodies 100% funded by the Central Government. Hence, there is no justification that there should be discrimination against the employees of the Navodaya Vidyalaya Samiti in the matter of grant of Pension which has been an issue right since its inception in 1985.

q. Aggrieved by the negative attitude of the Govt. in implementing the 1972 Pension Scheme in favour of the employees of Navodaya Vidyalayas the petitioner association passed a resolution dt. 7-5-2012 and authorized the secretary for filing Writ Petition before this Hon’ble Court. The association however, came to know in the month of July 2012 that the Jharkhand High Court had already passed an order in the matter and the petitioner therein was contemplating bringing the matter before this Hon’ble Court. The petitioner association thereafter started collecting documents of the case before the Jharkhand High Court and after collecting the relevant documents the present petition is being filed. In the meanwhile the petitioner has come to know that SLP (C) No.19102/2012 filed against the order passed by the Hon’ble Jharkhand High Court is pending admission hearing before this Hon’ble Court. The petitioner therefore, would pray for tagging the present petition with SLP (C) No.19102/2012 in the interest of justice.

A true typed copy of resolution dt.7-5-2012 is annexed as Annexure P13.

A true typed copy of letter of authority dt. 7-5-2012 is annexed as Annexure P14.

7. That aggrieved by the actions of the respondents the petitioner is filing the present Writ Petition inter alia, on the following

GROUNDS:

a) Because the Petitioner has the right to equality under Articles 14 and 16 (1) of the constitution of India. Whereas Article 14 permits reasonable classification Article 16 (1) forbids discrimination. This is to say, discrimination based on reasonable classification can alone be protected. Tested on this premise, non-extension of the benefits of the Pension Scheme of 1972 to the employees of the Navodaya Vidyalaya Samiti is based on no reasonable classification and is rather a case of invidious discrimination for the following reasons:

i) The Navodaya Vidyalaya Samiti like the Kendriya Vidyalaya Organization, Central Tibetan Schools, Sainik Schools is an autonomous organization 100% funded by the central Government and its employees are, therefore, entitled to identical treatment. If CCS Pension Scheme has been made available to the Kendria Vidyalaya Sangathan and Central Tibetan Schools and similar such autonomous organizations, there is no justifiable reason the employees of the Navodaya Vidyalayas should be deprived of it.

ii) In fact, while accepting the recommendations of the IVth Pay Commission the Central Government allowed all the Central Government employees and central autonomous bodies pension w.e.f 1-1-86. Pension was not allowed to the Navodaya Vidyalaya Samiti employees on a fickle ground that Samiti was not registered on 1-1-86 even though it had already come into existence in 1985 itself. Denial of Pension on the ground of the Samiti not being registered on 1-1-86 was itself arbitrary and illegal.

iii) In 1985 the Government of India decided to set up good quality residential schools in each district to provide good quality of education to bright children from rural areas. Employees were brought in and posted in far flung remote areas. Employees were brought in also on deputation on the promise that pensionary benefits will be accorded to them on absorption. This is why in earlier appointment orders the respondents mentioned GPF-pension as option. But in subsequent orders pension was missing. Had there been no promise of pension, it defies logic, the employees would have preferred to join Navodaya Vidyalaya Samiti on deputation and later absorbed. This is, indeed, a case of breach of promise.

iv) The Executive Committee of the Navodaya Vidyalaya Samiti at a meeting held on 12-1-1992 resolved to adopt the Central Government Rules and Regulations for its employees mutatis mutandi till the samiti framed its own Rules and Regulations. Hence, there is no reason why the CCS Pension Scheme, 1972 should not be applied to the Navodaya Vidyalaya Samiti.

v) The New Pension Scheme does not provide for either death gratuity or family pension. In absence of these provisions the New Pension Scheme makes only a hollow promise. The New Pension Scheme has ignored the contributions and sacrifices made by the employees of the Navodaya Vidyalaya Samiti under the 1972 scheme in the event of death of Government Servant while in service or after retirement, his/her family is eligible for grant of family pension even when he/she had completed only one year of continuous service. Under the 1972 scheme there is a provision of enhanced rate of family pension after seven years from the date following the date of death of the employee. These provisions of the 1972 Scheme are in the nature of social welfare measure. Pension Scheme without such provisions which the New Pension Scheme is, is nothing but a hollow promise signifying nothing.

a) The New Pension Scheme now introduced is not comparable to the CCS Pension Scheme, 1972. It is all the more discriminatory to the employees who joined prior to 1-1-2004. Besides, there is no provision for death gratuity and medical benefits under the New Pension Scheme.

b) Because right to equality under Article 14 and 16 of the constitution cannot be permitted to be defeated as held by this Hon’ble Court in Municipal Council, Ratlam Vardichand (1980) 4SCC, 162, on the ground of financial implications. In case of discharge of constitutional duty financial implications do not matter. Even other wise, the report of the Actuary clearly shows that the 1972 pension Scheme was easily implementable in the Navodaya Vidyalaya Samiti.

c) Because as held by this Hon’ble Court in D.S Nakara Case, reported as (1983) 1SCC, 305, Pensioners form a class and hence, they cannot be unequally treated. Pension is neither a bounty nor a matter of grace; it is a payment for past service rendered. It is a social welfare measure in the implementation of which there is should be no unreasonable discrimination.

8. That the petitioner has not filed any other petition like the present one earlier before this Hon’ble Court or any other Court for the relief prayed for in the present petition.

PRAYER

It is ,therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to;

a) issue an appropriate Writ/s, direction/s, order/s commanding the respondents to extend the benefits of CCS Pension Scheme, 1972 to the employees of the Navodaya Vidyalaya Samiti as it has been extended in favour of similar autonomous organizations like Kendriya Vidyalaya Sangathan, the Central Tibetan Schools, Sainik Schools and similar such autonomous organizations;

AND/OR

b) pass such other order/s as this Hon’ble Court may deem fit and proper.

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY

Drawn on 11-2012 by

RANJIT SHARMA, ADV

Dated:20-11-2012 Debasis Misra, Advocate

New Delhi for the petitioner

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

Writ Petition (C) No. /2012

IN THE MATTER OF:

All India Navodaya Vidyalaya

Staff Association (Regd)

Through its General Secretay Petitioner

Versus

Union of India & ors Respondents

AFFIDAVIT

I, L.B Reddy S/o Late Shri Narayan Reddy aged about 55 years, General Secretary of all India Navodaya Vidyalaya Staff Association (Regd) Central Executive Committee, JNVS, Mmnoor, Warangal, (Andhra Pradesh) presently at New Delhi, do hereby solemnly affirm and state as follows:

1. That in my official capacity I am fully conversant with the facts and circumstances of the case and am competent to swear this affidavit on behalf of the petitioner Association.

2. I say that the accompanying Writ Petition from para 1 to …….. at page no………. to…….. and the list of dates pages B to ………..and I.A. have been drafted by the counsel under my instructions and I have gone through the contents therein and I say that the facts stated therein are true to my knowledge and belief and nothing has been concealed therefrom.

3. I say that the annexures filed with the Writ Petition are true/translated copies of their respective originals.

Deponent

VERIFICATION:

Verified at New Delhi on this the 20^th day of November,2012 that the averments of facts stated herein above are true to my knowledge derived from the records, no part of it is false and nothing material has been concealed there-from.

Deponent

ANNEXURE P2

NAVODAYA VIDYALAYA SAMITI

MINISTRY OF HUMAN RESOURCE DEVELOPMENT

(Department of Education)

1/6, Siri Fort Institutional Area

Khel Gaon Road, New Delhi-110042

DR.S.K.NARANG

DY.DIRECTOR(ADMN) D.O.No.F.1-28/89-NVS (ESTT.), AUGUST, 14,1989

Dear Principal,

This is in communication of my earlier D.O. letter of even number dated 26^th July, 1989 forwarding therewith two copies of the permanent absorption the Executive Committee on 4^th July, 1989.

We are receiving a number of references from our Vidyalaya about the adoption of the Pension Scheme for the employees of the Navodaya Vidyalaya Samiti. In this connection. I am to inform that the Executive Committee of the Samiti approved the adoption of Group Insurance Scheme and the details are being worked out with Life Insurance Corporation of India. Introduction of Pension Scheme in the Samiti is under consideration and the decision of the Samiti in this regard would be communicated to your shortly.

With regards,

Yours faithfully,

Sd/-

(DR.S.K.NARANG)

Copy for information to:-

1. The Deputy Director of all the Region Offices of Navodaya Vidyalaya Samiti.

2. All Officers of the Navodaya Vidyalaya Samiti (Hqrs.).

3. Finance & Accounts Wing/Administration Wing/Academic Wing/Construction Wing.

Sd/-

(DR. S.K.NARANG)

DEPUTY DIRECTOR

True Copy

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