INTERPRETATION AND DEFENCE OF SUPREME
COURT DECISION
Jawahar Navodaya Vidyalaya was conceptualized
in 1985 and two model schools were started, one each at Jajjhar in Haryana and
Amravati in Maharashtra. However, the Jawahar Navodaya Vidayala Samiti was
established under the Registration of Societies Act, 1960 on 28-02-1986.
Jawahar Navodaya Vidyalaya schools have been
established under the aegis of the Ministry of Human Resource Development,
Government of India. The employees of Jawahar Navodaya Vidyalaya Samiti
(“JNVS”) demand that they be brought
under the GPF-cum-Pension Scheme like their counterparts in other educational
institutions, like Kendriya Vidyalaya Samity (“KVS”), IITs, Sainik Schools,
NCERT etc. However, they have continued to be governed only by CPF Scheme and are
excluded from the Pension Scheme till 2004.
1. OLD
PENSION SCHEME to NVS employees FAVOURED
by HRD Ministry, Various Committees and Commissions etc.
In any
case, the demands of the employees of JNVS have been supported as well as
voiced by various Government functionaries including Ministry of Human Resource
and Development through its letter to the Finance Ministry in 1998 seeking
approval of the Finance Ministry to introduce the Pension Scheme to JNVS, Y.N. Chaturvedi Committee Report on
Review of Management Structure and Operating Mechanism of Navodaya Vidayala
Samiti, Parliamentary Committee on
Functioning of Navodaya Vidayala Samiti through its 154th, 184th and 198th
Reports. All these committees have strongly recommended that the employees of
JNVS be brought at par with the employees
of Kendriya Vidayalaya and be given similar service benefits, including
pension under 1972 Rules.
Review Committee set up by the Ministry of
HRD under Chairmanship of Shri Y.N. Chaturvedi to review the Management
Structure and Operating Mechanism of JNVS, 154th report of the Department
Related Parliamentary Committee on
functioning of JNV which was laid before Lok Sabha on 02-03-2005, Cabinet Note
prepared by the Ministry of HRD in March 2006 which specifically pointed out
the need to extend the Pension Scheme under 1972 Rules to the employees of
JNVS, 198th Report of the Department Related Parliamentary Committee submitted
on 17-08- 2007 which strongly recommended for implementing the Pension Scheme
to the employees of JNVS. Even the
Ministry of Labour and Employment by its O.M. dated 07-09-2006 to the Ministry
of HRD, recommended extension of Pension Scheme to NVS.
2. RESOLUTION
BY EXECUTIVE COMMITTEE OF NVS
The Executive Committee of JNVS had adopted a
resolution which proposed the application of Central Government Service Rules
to its employees mutatis mutandis till the Samiti framed its own rules. But the
resolution has not been shown to have been approved by the Government or District
Inspector of Schools, contends Supreme Court Verdict.
However, the major hurdle in implementation
of Pension Scheme to the employees of JNVS has been the financial constraints
as the Finance Ministry never gave a go-ahead for such implementation.
3. ACTUARY CONFIRMS FINANCIAL FEASIBILITY BY NVS EMPLOYEES’ OWN CONTRIBUTION & FUND.
To substantiate their claim, JNVS engaged an actuary to determine
the financial feasibility of implementing the Pension Scheme to JNVS employees
and it was found that if the employees contribution upto 31.03.2005 is
transferred to the Pension Fund by 31.03.2005 and annual contribution of @18%
of salary on monthly basis from 01.04.2006, the implementation of the scheme is
financially viable.
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 of this.
4. NVS
Employees objects the NEW PENSION SCHEME:
The Government of India introduced the New
Pension Scheme for the NVS employees effective from 1-4-2009. Those who were
appointed prior to 1-4-2009 were given an option to join the New Pension scheme
or continue with the existing CPF scheme of NVS .
The employees claim that New Pension Scheme
was also discriminatory as it is not at par with the Pension Scheme under 1972
Rules. The existing employees were put under Tier-II of the New Pension Scheme
and the employer's contribution was not available to them. Further, the New
Pension Scheme did not include any family pension, medical benefits and death
gratuity.
But those who have joined NVS before 1-1-2004
will never get new Pension Scheme.. They will have to accept only CPF Scheme.
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.
MISHRA
FILED WRIT PETITION AGAINST NEW PENSION SCHEME:
JNV employees 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 had been
dismissed by order dt. 9-2-2012.
The
cut-off date 1-1-2004 for New Pension Scheme is the domain
of the employer. S.C asserts that there
is no arbitrariness or discrimination in respect of New Pension Scheme.
5. PRINCIPLE
OF EQUAL PAY FOR EQUAL WORK:
Learned Additional Solicitor General on
behalf of UOI stated that it is an
administrative decision which is made keeping in mind various determining
factors and that it cannot be said all schools and educational institutions
constitute one class.
S.C avoided applying the principle of equal
pay for equal work. That there should be complete and wholesome identity
between the two groups and that the matter should be sent for examination by an
expert committee appointed by the Government instead of the Court itself
granting higher pay)”
6.
4TH PAY COMMISSION
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
employees of NVS contends that the Office Memorandum of the Department Public
Grievances and Pensions Department of Pensions and Pensioners’ Welfare dated
01-05-1987 to the employees of JNVS just like it was applied to the KVS
JNVS was not in existence at the time of
cut-off date 01-01-1986 applicable under
the O.M. dated 01.05.1987 The Navodaya Vidyalaya Samiti was established and
registered under the Societies Registration Act, 1860 only on 28-02-1986, so
its employees cannot be in service as on 01- 01-1986 nor CPF Benefacories.
Aforesaid OM is applicable to KV because the KVS was established in 1965.
Navodaya Vidyalaya Samiti was formed in 1986
but model schools already existed in
1985.The appointment letters given to employees in 1986, had given the option to join either the CPF
Scheme or Pension Scheme.(Testimonials are Appointment letters dt.9-1-86 and
14-2-86 )
7.
Autonomous Bodies
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”.
Navodaya Vidyalaya Samiti is an autonomous
body 100% funded by the Central Government in line with Kendriya Vidayalayas,
Sainik Schools, Central Schools etc. , which are also cent percentage
autonomous bodies .
Its constitutional/fundamental right to
equality guaranteed by Articles 14 and 16 of the constitution of India,
applicable to financial implications as well.
JNV
employees not totally Central Govt Employees
JNVS cannot claim as of a right to be
governed by the Central Civil Service (Pension) Rules, 1972 as they are not employees of the Central
Government. In A.K. Bindal (supra),
this Court has held that employees of Government companies are not Government
servants.JNV employees are employees of
the autonomous body that is Navodaya Vidyalaya Samiti which has all the control
on the organization.
8.
Fundamental rights cannot be violated on the
grounds of financial constraints
The only reason for not providing pension as
per 1972 Rules has been the financial implications which becomes apparent from
the letter of the Finance Ministry dated 05-02-1999 to the HRD Ministry that an
annuity scheme may be formulated with LIC by employees contribution alone
without any liability of the Government.
BUT RIGHT TO PENSION NOT A
FUNDAMENTAL RIGHT
Many ingredients go into shaping of the wage
structure of any organization, including the economic capability of the
employer.Right to pension is not an inherent right of every employee but it
flows from the rules of the Government. if the employee is not entitled to the
pension as per the rules governing his/her service conditions, he/she cannot
claim it. The employees of NVS were not promised any pension at the time of
their appointment and no deductions were made during their service towards any
pension fund. Hence the employees have not
been denied what was rightfully theirs.
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COMPILATION BY S.S.NAIR , Dy. Gen.Secy AINVSA
Disclaimer:
This is only an interpretation, the readers
and users are to do with their own discretion, the compiler do not hold any
liability whatsoever.