ANTONY DOMINIC, J.
The applicants in O.A.No.852 of 2009 on the file of the Central Administrative Tribunal, Ernakulam Bench have filed this Writ Petition challenging Ext.P4 order passed by the Tribunal dismissing the Original Application.
2. We heard the learned Senior counsel for the petitioners and the learned Assistant Solicitor General appearing for respondents 1 to 4. There is no appearance or representation for the 5th respondent.
3. Briefly stated the facts of the case are that the petitioners are the administrative staff of Vikram Sarabhai Space Centre, a unit of ISRO. They were initially covered by the Contributory Provident Fund Scheme. Subsequently based on the recommendation of the 4th Pay Commission, the Government of India issued Annexure-A4, Office Memorandum dated 01/05/1987 conveying the decision of the President to accept and implement the recommendations of the Pay Commission and that all CPF beneficiaries, who were in service on 01/01/1986 and who were still in service on the date of the order, will be deemed to have come over to the GPF pension scheme. It was also ordered that if such employees so desire, they will have an option to continue under the CPF scheme, provided they exercise an option to that effect and convey the same to the Head of Office by 30/9/1987.
4. Subsequently, Annexure-A5, Office Memorandum dated 21st October, 1987 was issued by the Department of Space, Government of India in respect of all employees of the Department of Space/ISRO irrespective of whether they are Scientific/Technical or Administrative, which insofar as it is relevant reads thus:-
“The undersigned is directed to enclose herewith a copy of Office Memorandum No.4/1/87-PIC-I dated 1.5.1987 on the subject mentioned above. The orders contained in the said Office Memorandum have been examined by the Department of Space in the context of the existing orders, according to which, all employees of Department of Space/Indian Space Research Organisation, irrespective of whether they are Scientific/Technical or administrative are admitted to the Contributory Provident Fund (CPF) Scheme on their initial appointment and on their confirmation are given an option to either continue under CPF or to come over to General Provident Fund/Pension Scheme. The matter has also been considered in consultation with the Department of Pension & Pensioners' Welfare and it has been decided as follows:-
(i) All existing administrative staff in DOS/ISRO, whether permanent or temporary, who are governed by Contributory Provident Fund Scheme and who were in service as on 1.1.1986 and who are still in service on the date of issue of these orders, will be deemed to have come over to General Provident Fund/Pension Scheme.
(ii) The administrative staff referred to in (i) above will however, have an option to continue under the Contributory Provident Fund Scheme, if they so desire. The option will have to be exercised and conveyed to the concerned authorities in the Centres/Units on or before 31.12.1987 in the form attached to the DP & T O.M., if the employees wish to continue under Contributory Provident Fund Scheme. If no option is received on or before 31.12.1987, the employees will be deemed to have come over to the General Provident Fund/Pension Scheme.
Based on Annexure-A5, petitioners submitted Annexures-A7, A8 and A10 dated 8/12/1987, 21/12/1987 and 4/12/1987 respectively, opting to continue under the CPF Scheme.
5. While they were thus continuing under the CPF Scheme, the petitioners submitted Annexures-A12, A13 and A15 dated 12/6/2008, 18/7/2008 and 16/6/2008 respectively, which are representations addressed to the Secretary, Department of Space and Chairman of ISRO, requesting that they be permitted to be covered by GPF pension scheme. In these representations they also placed reliance on the Supreme Court judgment in Union of India & another Vs. S.L.Verma and others [(2006) 12 SCC 53]. The representations submitted by them were rejected by Annexures-A16, A17 and A19 communications dated 8/9/2009. It was in these circumstances, in December, 2009 the petitioners filed O.A.No.852 of 2009 before the Central Administrative Tribunal, praying to quash Annexures-A16, A17 and A19 and to declare that they are already covered by G.P.F. Pension Scheme. They also sought a declaration that Annexure-A5 issued by the Department of Space and Annexure-A6, a consequential order issued by the VSSC are without any authority and law and hence illegal.
6. The Tribunal, heard the parties and by Ext.P4 order dismissed the Original Application, placing reliance on the judgment of this Court in W.P.(C)No.22574 of 2009 dated 11/2/2010. It is in these circumstances, this Writ Petition is filed. Before us, contentions were raised mainly relying on the judgment of the Apex Court in S.L.Verma's case. According to the learned counsel, as is evident from Ext.P9, communication of the department itself, in S.L.Verma's case the Apex Court held that, an option exercised after 30/9/1987, the cut of date prescribed in Annexure-A4 was invalid. Therefore, according to the petitioners, the option exercised by them in December, 1987 within the cut of date of 31/12/1987 permitted in Annexure-A5 is also invalid. According to them, therefore, the resultant position would be that there was no valid option opting out the GPF pension scheme. It is on this basis the petitioners are arguing that they are entitled to be covered under the GPF pension scheme. The further contention raised by the petitioners is that Annexure-A5 issued by the Department of Space itself is an invalid order and is of no legal effect.
7. Before dealing with the contention raised by the learned counsel for the petitioners we must at the outset say that this is a case where Annexure-A5, which was impugned before the Central Administrative Tribunal was issued by the Government of India, way back on 21/10/1987. Based on Annexure-A5, options were exercised by the petitioners in December, 1987. Long thereafter, they represented for continuance under GPF Pension Scheme only in June and July, 2008 and on rejection of these representations in August, 2009, they filed the Original Application only in December, 2009. These dates which we have indicated itself would show that the challenge raised by the petitioners before the Tribunal and their requests for continuance under the GPF Pension Scheme were highly belated.
8. However, this defect is sought to be got over by the counsel by telling us that they filed Annexures-A12, A13 and A15 soon after the Apex Court rendered its judgment in S.L.Verma’s case. Reading of the S.L.Verma’s case shows that on rejection of representations made in that case, in 1999, Writ Petition was filed and it was those proceedings which culminated in the Apex Court judgment in 2006. In our view, the petitioners’ case cannot be equated to the S.L.Verma’s case and the petitioners are guilty of delay and latches.
9. Even apart from this, on merits also, we feel that S.L.Verma’s case cannot be taken advantage of by the petitioners. In S.L.Verma’s case the parties concerned were employees of Bureau of Indian Standards, who were covered by CPF scheme. When Annexure-A4 order dated 1/5/1987 was issued by the Government of India giving the employees option to opt out of the GPF scheme, though the employees did not exercise such an option, on a misconception of the purport of the Government order, they were treated as having continued under the CPF scheme. Subsequently, in 1999 their employer requested the Government of India to grant another chance to the employees to switch over to the GPF pension scheme which was declined by the Government of India. This led to the filing of the Writ Petition. Considering these facts and purport of the Government Order dated 1/5/1987 the Supreme Court held thus in paragraph 7:-
“7. .......... By reason of the said office memorandum dated 1-5-1987 a legal fiction was created. Only when an employee consciously opted for to continue with the CPF Scheme, he would not become a member of the Pension Scheme. It is not disputed that the said respondents did not give their options by 30-9-1987. In that view of the matter Respondents 1 to 13 in view of the legal fiction created, became the members of the Pension Scheme. Once they became the members of the Pension Scheme, Regulation 16 of the Bureau of Indian Standards (Terms and Conditions of Service of Employees Regulations, 1988) had become ipso facto applicable in their case also. It may be that they had made an option to continue with the CPF Scheme at a later stage but if by reason of the legal fiction created, they became members of the Pension Scheme, the question of their reverting to the CPF would not arise. ”
Reading of the above paragraph shows that, according to the Apex Court, in terms of the provisions contained in the Office Memorandum dated 1/5/1987 unless a person expressly opts out of the GPF pension scheme and to continue under the CPF scheme, he will be deemed to be covered under the GPF pension scheme and that once they become members of the GPF pension scheme, the question of their reverting to the CPF would not arise.
10. Insofar as this case is concerned, by Annexures-A5 and A6, the consequential order, which are containing provisions similar to the Office Memorandum dated 1/5/1987 referred to in the S.L.Verma’s case employees of VSSC were allowed to opt out of the GPF scheme on or before 31/12/1987. Accordingly, the petitioners exercised their option as per Annexures-A7, A8 and A10. If that be so, as held by the Apex Court, they opted to be the members of the CPF pension scheme on account of the option exercised, and the question of their reverting to the GPF Scheme would not arise. Consequently their belated request made in June and July, 2008 by Annexures-A12, A13 and A15 opting out of the CPF scheme could not have been accepted. On facts also we are of the view that this claim is not substantiated in any manner by the principles laid down in S.L.Verma’s case.
11. Counsel then contended that Annexure-A5, the Office Memorandum dated 21/10/1987 is invalid. First of all the petitioners themselves took advantage of Annexure-A5 by exercising option. Secondly Annexure-A5, as we have already stated, was issued as early as on 21/10/1987 and if at all the petitioners had any contention insofar as Annexure-A5 is concerned, they ought to have raised their challenge within a reasonable time of its issue. We also noticed that, though the validity of this order was not an issue, still this question was gone into by a Division Bench of this Court in the judgment in W.P.(C)No.22574/2009. For all these reasons, we are unable to entertain this plea now raised before us.
12. We are also conscious of the fact that almost in similar circumstances the relief granted by the Tribunal by allowing in O.A.No.685/2007 and that the said order was set aside by this Court in W.P.(C)No.22574/2009 mentioned above and that it was following this judgment that the Tribunal passed the impugned order.
For all these reasons, we do not find any merit in this Writ Petition.
The Writ Petition is dismissed.
ANTONY DOMINIC, JUDGE skj ANIL K.NARENDRAN, JUDGE