1. Petitioners (3 in numbers) are aggrieved that their applications to allow them to switch-over from Contributory Provident Fund Scheme (for short “CPF”) to General Provident Fund-cum-Pension Scheme (for short “GPF”) were rejected vide order dated 16.09.2021.

2. The petitioners – 1, 2 and 3 have worked as Teacher (Mechanic-B), Instrumentation Engineer (Chemical Engineering) and Teacher respectively in Indian Institute of Technology, Kanpur.

3. In the impugned order, there are reference of as many as 11 letters/ communications whereby earlier also, aforesaid claim of petitioners was rejected and by way of amendment sought in this writ petition, all letters/ communications are also challenged.

4. Before considering rival submissions, few facts which would be relevant are mentioned below :-

                  “a. The Government of India has issued an Office Memorandum dated 01.05.1987 on a subject “Change over of the Central Government employees from the Contributory Provident Fund Scheme to Pension Scheme-Implementation of the commendations of the Fourth Central Pay Commission. Salient features of said Office Memorandum are reproduced hereinafter:

                  1. The undersigned is directed to state that the Central Government employees who are governed by the Contributory Provident Fund Scheme (CPF Scheme) have been given repeated options in the past to come over to the Pension Scheme. The last such option was given in the Department of Personnel and Training O.M. No. F3(1)-Pension unit/85 dated the 6th June, 1985. However, some Central Government employees still continue under the CPF Scheme. The Fourth Central Pay Commission has now recommended that all CPF beneficiaries in service on January 1, 1986, 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.

                  2. After careful consideration the President is pleased to decide that the said recommendation shall be accepted and implemented in the manner hereinafter indicated.

                  3. All CPF beneficiaries, who were in service 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 the Pension Scheme.

                  3.2. The employees of the category mentioned above will, however, have an option to continue under the CPF Scheme, if they so desire. The option will have to be exercised and conveyed to the concerned Head of Office by 30.09.1987 in the form enclosed if the employees wish to continue under the CPF Scheme. If no option is received by the Head of Office by the above date the employees will be deemed to have come over to the Pension Scheme.

                  3.3. The CPF beneficiaries, who were in service on 1.1.1986, but have since retired and in whose case retirement benefits have also been paid under the CPF Scheme, will have an option to have their retirement benefits calculated under the Pension Scheme provided they refund to the Government, the Government contribution to the Contributory Provident Fund and the interest thereon, drawn by them at the time of settlement of the CPF Account. Such option shall be exercised latest by 30.09.1987.

                  3.4. In the case of CPF beneficiaries, who were in service on 1.1.1986 but have since retired, and in whose case the CPF Account has not already been paid, will be allowed retirement benefits as if they were borne on pensionable establishments unless they specifically opt by 30.09.1987 to have their retirement benefits settled under the CPF Scheme.

                  3.5 in the case of CPF beneficiaries, who were in service on 1.1.1986, but have since died. Either before retirement or after retirement, the case will be settled in accordance with para 3.3 or 3.4 above as the case may be. Options in such cases will be exercised latest by 30.09.1987 by the widow/widower and in the absence of widow/widower by the eldest surviving member of the family who would have otherwise been eligible to family pension under the Family Pension Scheme if such scheme were applicable.

                  3.6 The option once exercised shall be final.

                  3.7 In the types of cases covered by paragraph 3.3 and 3.5 involving refund of Government's contribution to the contributory provident fund together with interest drawn at the time of retirement, the amount will have to be refunded latest by the 30th September, 1987. If the amount is not refunded by the said date, simple interest thereon will be payable at 10% per annum for period of delay beyond 30.9.1987.

                  b. The Indian Institute of Technology, Kanpur has adopted above referred Office Memorandum dated 01.05.1987 by an Office Order dated 11.09.1987. For reference, said office order is quoted below in its entirety :-

                  “1. The Fourth Central Pay Commission has recommended that C.P.F. beneficiaries in service on January 1, 1986 should be deemed to have come over to the pension scheme on that date unless they specifically opt out to continue under the C.P.F. Scheme.

                  2. The aforesaid recommendations have been accepted by the Central Government vide O.M. No.4/1/87-PIC dated 1.5.1987, a copy of which is attached to this circular. The Chairman, B.O.G. has approved implementation of the aforesaid orders to the employees of this Institute.

                  3. All employees who are governed by Schedule C-Contributory Provident Fund and Schedule E-Contributory Provident Fund-cum-Gratuity Scheme and who were in service on 1.1.1986 shall be deemed to have come over to Schedule F-General Provident Fund-cum-Pension-cum-Gratuity Scheme w.e.f. 1.1.1986. However, the employees are given an option to continue under the C.P.F. Scheme, if they so desire. The option shall have to be exercised in the form enclosed and submitted to the Administration Section by 30.10.1987. In the case of employees who are on long leave out of India or are on deputation or are otherwise away from the Institute, the option can be exercised by 31.12.1987. The Faculty Members and others whose personal files are maintained by the Dean of Faculties, the options should be submitted to the Dean of Faculties. If no option is received by the above date the employees will be deemed to have come over to the Pension Scheme.

                  4. The employees who exercise an option to continue under the C.P.F. Scheme will henceforth be governed by Schedule E-C.P.F.-cum-Gratuity Scheme, and will be eligible for retirement gratuity and Death Gratuity in accordance with provisions of Government of India O.M. No.4/1/87-PIC-II dated 1.5.1987 (copy enclosed). Schedule C-C.P.F. Scheme will cease to be operative.”

                  5. As referred above, while adopting the O.M. dated 01.05.1987 by way of Circular dated 11.09.1987, a date to give option to continue in CPF Scheme was extended from 30.09.1987 to 30.10.1987.

                  6. Following are the details which are undisputed so far as repeated options submitted by respective petitioners to continue with CPF Scheme and a chart mentioned in written submission filed by learned counsel for respondents is scanned and pasted below :-

7. Sri Sanjeev Singh, learned Senior Advocate assisted by Sri Pramod Kumar, learned advocate for petitioners has placed reliance on various paragraphs of a judgment passed by Supreme Court in University of Delhi vs. Smt. Shashi Kiran and others, (2022) 15 SCC 325, judgments passed by this Court in Priyanka Upadhyay vs. Union of India and others, 2025:AHC:37820 and a judgment of Division Bench of this Court in Prof. Harish Chandra Chaudhary and others vs. The Union of India and others, 2025:AHC:69579-DB wherein judgment of Priyanka Upadhyay (supra) was upheld.

8. Per contra, Ms. Kriti Gupta, Advocate holding brief of Sri Rohan Gupta, learned counsel for respondents has opposed above submissions and has also referred the judgment of this Court in Dr. S.K. Pant Professor and others vs. Union of India and others, 2025:AHC:203155.

9. Crux of argument of learned Senior Advocate appearing for petitioners is that once the Office Memorandum dated 01.05.1987 is adopted and petitioners have not submitted their option to continue in CPF Scheme before cut off date fixed therein i.e. 30.09.1987, any subsequent act by submitting option to remain in CPF Scheme in the garb of various extension granted by respondents would be non-est and petitioners are deemed to be switched over to GPF-cum-Pension Scheme as soon as said O.M. was adopted by respondent-IIT and no option was submitted before the relevant date i.e. 30.09.1987 and for that learned Senior Advocate has referred following part of University of Delhi vs. Smt. Shashi Kiran (supra) is mentioned below :-

                  “47.Krishena Kumar [Krishena Kumar v. Union of India, (1990) 4 SCC 207 : 1991 SCC (L&S) 112] was a case where the retirees from two categories, namely, Pension Fund and Provident Fund, were taken to be distinct and different and as such the plea on the ground of discrimination was rejected. As the judgment of the Division Bench discloses, the matter was considered by it from the standpoint of discrimination between the same category of persons, that is to say, those who had opted to be under CPF. The different groups in the same category were:

                  47.1. Those who had not exercised any option but continued to make payment of contribution towards CPF (R.N. Virmani [R.N. Virmani v. University of Delhi, 2014 SCC OnLine Del 2799] batch of cases).

                  47.2. Those who exercised the option to be under CPF but the option was exercised after the cut-off. Since the option was exercised after the cut-off, they were deemed to have “come over” to GPF and were granted benefit (N.C. Bakshi [N.C. Bakshi v. Union of India, 2014 SCC OnLine Del 2798] batch of cases).

                  47.3. Those who consciously exercised the option to be under CPF; but taking advantage of further options granted through 11 extensions to switch over, had been allowed to “come over” to GPF (2469 employees).

                  48. It was against these three sub-categories coming from the same category of employees that the argument of discrimination was considered by the Division Bench. Such was not the case in Krishena Kumar [Krishena Kumar v. Union of India, (1990) 4 SCC 207 : 1991 SCC (L&S) 112] or Rajasthan Rajya Vidyut Vitran [Rajasthan Rajya Vidyut Vitran Nigam Ltd. v. Dwarka Prasad Koolwal, (2015) 12 SCC 51 : (2016) 1 SCC (L&S) 315] . The matter was further considered by the Division Bench in the context of the employees of educational institutions such as IITs, who are directly under the Central Government, just as the employees of the University, which is a Central University. If the option was allowed to be exercised by granting extension to the employees of the other educational institutions, the Division Bench did not find any reason why similar choice/option could not be given to the employees in Shashi Kiran [Shashi Kiran v. Union of India, WP (C) No. 5759 of 2010 sub nom Kanta Batra v. Union of India, 2014 SCC OnLine Del 2797] batch of cases. Additionally, the feature that has been presented through the documents which have subsequently come on record is that even with respect to the employees of insurance corporations similar options and extensions were granted.

                  49. The differential treatment afforded to those 2469 employees as against the employees in Shashi Kiran [Shashi Kiran v. Union of India, WP (C) No. 5759 of 2010 sub nom Kanta Batra v. Union of India, 2014 SCC OnLine Del 2797] batch of cases, was not founded on any rationale. No justifiable reason was coming forth. If those 2469 employees could be afforded chance to exercise an option of switch over to GPF, even though they had consciously opted to be under CPF, on principle of parity or equality, the case was certainly made out.

                  51. According to the Notification dated 1-5-1987, the employees joining the service after 1-1-1986 would always be under GPF. With respect to those who were in service on 1-1-1986, said employees would be deemed to have “come over” to GPF unless an option to continue to be under CPF was consciously exercised before the cut-off date. Thus, when the Scheme was framed and was sought to be implemented, the authorities concerned must have taken into account the entire magnitude such as, the number of employees and the likelihood of impact on the management of the fund, so that reasonable returns can be effected by way of pension upon retirement of such persons. Going by the intent of the notification, those who were to opt for CPF, were an exception and the general rule was that everybody after 1-1-1986 would normally be covered by GPF. It is in this context that the number of original petitioners in Shashi Kiran [Shashi Kiran v. Union of India, WP (C) No. 5759 of 2010 sub nom Kanta Batra v. Union of India, 2014 SCC OnLine Del 2797] batch of cases has to be seen. We are concerned with only 75 persons. On the other hand, the bulk of people, namely, 2469 employees were granted the choice of reverse switch over and they were allowed all the benefits under GPF. It can reasonably be said that when the Notification dated 1-5-1987 was issued, the authorities were conscious of the possibility that all the employees may “come over” to GPF. With that possibility in mind, the fund was constituted and the affairs were arranged. The shift of those 75 employees would not in any way affect the strength and the character of the fund if a direction that the entire contribution made by the authorities be returned with reasonable rate of interest is issued. These 75 petitioners had approached the Court in the year 2010. At this length of time, it is not as if any floodgates are going to open and there will be drain on the resources of the State. A direction can, therefore, be issued, as was done by the learned Single Judge in para 20 of his judgment in R.N. Virmani [R.N. Virmani v. University of Delhi, 2014 SCC OnLine Del 2799] batch of cases and which aspect was mentioned in the Letter dated 23-1-2017 referred to in para 31.4 hereinabove, for recouping the contribution under CPF with 8% simple interest per annum.”

                  10. Per contra, learned counsel for respondents has submitted that :-

                  i. The IIT Statutes provide for following three schemes for its employees who can exercise their option even at the time of appointment :-

                  a. Contributory Provident Fund (under Schedule C of the IIT Statutes)

                  b. Contributory Provident Fund-cum-Gratuity Scheme (under Schedule E of the IIT Statutes)

                  c. General Provident Fund-cum-Pension-cum-Gratuity Scheme (under Schedule F of the IIT Statutes).

                  The Petitioners for the first time exercised their option to be governed by the Contributory Provident Fund-cum-Gratuity Scheme (under Schedule E of the IIT Statutes).

                  iii. Therefore, in this manner the Respondent Institute had adopted and amended the Om dated 01.05.1987 which only provided an option to switch from CPF to Pension Scheme to suit the requirements of the Institute which provided three different schemes for its employees.

                  iv. Request for change over made for the first in 2009 much after the expiry of their 15 years of continuous service. Further, another request was made by only Petitioner No. 1 on 30.05.2012 which came to be rejected for the first time on 18.07.2012. The said communication has not been challenged by the Petitioner and has attained finality. Thereafter, subsequent orders have been passed rejecting the same request for changeover.

11. She also has referred some documents annexed in counter affidavit and for reference, Office Order dated 16.01.1992 and 10.06.1998 are quoted below in its entirety :-

                  “16.01.1992

                  OFFICE ORDER

                  Sub- Exercise of option for change-over from Contributory Provident Fund-cum-|Gratuty Scheme (Schedule’E’) to General Provident Fund-cum-Pension-cum-Gratuty Scheme (Schedule ‘F’)

                  Further to Office Order No. Adm. 26(G)/87-IITK/372 dated 11.09.1987, No-Adm. 26 (G)/90-IITK/1221 dated 23.01.1991 and No. DF/C-2/90-IITK dated 03.07.90, the Board of Governors of the Institute have been pleased to allow another opportunity to the members of the staff of the Institute viz. Group A,B,C and D (including Scientific employees for whom option was not provided owing to non-revision of their scales) who were in Institute Service on 01.01.1986 to come over to the Pension-cum-Gratuty scheme in accordance with the provision of Government of India, O.M. No. 4/1/87/PIC dated 01.05.1987. This opportunity of exercising option would also be applicable to the persons who have meanwhile retired from service and other CPF beneficiaries who since died, either before retirement or after retirement. In the later case the families of the deceased would be entitled to give an option to have the benefit of pension scheme. In such cases the contribution of the Institute to the contributory provident fund together with interest will have to be refunded to the Institute in one lumpsum. Interest would also have to be paid to the Institute on the amount of Institute contribution and interest received by the beneficiaries from the date of receipt to the date of refund at the rate of ten percent.

                  5. Heads of the Departments/Sections/Units are requested to bring these orders to the notice of all the employees who are/were working under them. No action is required in respect of employee who are already governed by Schedule ‘F’ General Provident Fund-cum-Pension-cum-Gratuity Scheme.

                  6. It is to be emphasized that the option for change over to Pension Scheme is being extended as a matter of good gesture to the employees. No such change over would be permissible in future. In view of the benefits available under the Pension Scheme, the employees in their own interest are requested to avail of the opportunity.

                  10.06.1998

                  OFFICE ORDER

                  Sub- Exercise of option for change over from contributory Provident Fund-cum-Gratuity Scheme (Schedule ‘E’) to General Provident Fund cum Pension cum Gratuity Scheme (Schedule ‘F’)

                  Ref. 1998/Ist BOG meeting held on April 21, 1998

                  1. Further to Office Order No. Adm 26(G)87-IITK/372 dated 11.09.1987, No. DF/C-2/90 IITK dated 03.07.1990, No. Adm. 26(G)/90-IITK/1221 dated 23.01.1991, and No. Adm. 26(G)/92- IITK/1508 dated January 16, 1992, the Board of Governor of the Institute in the meeting held on April 21, 1998 considered the request of staff/faculty members of the Institute and decided as under:-

                  a. CPF subscribers in service in IIT Kanpur as on 01.04.1998 be given the option to switch over (irreversibly) to GPF-cum-Pension Scheme with immediate effect.

                  b. CPF Subscribers who are not switching now be allowed to switch over (irreversibly) upto the end of 15 years of their continuous service at the Institute.

                  c. A new entrant to CPF Scheme (after 1.04.1998) be also given an option on analogoue basis with reference to the decision at (b) above.

                  2. All CPF subscribers, who are eligible for pension or would become eligible for pension, may exercise their option to switch over to GPF-cum-Gratuity Scheme by filing and returning the annexed form so as to reach A.O. (Admin) or DOFA (as the case may be) on or before 30.07.98. The option once exercised shall be deemed final.”

12. Heard learned counsel for parties and perused the records.

13. In order to consider rival submissions, paragraph 30 of Priyanka Upadhyay (supra) being relevant is mentioned below :-

                  “30. The outcome of above discussion is that:

                  (a) The case of employees of Banaras Hindu University is factually on a different footing than the employees of Delhi University.

                  (b) Banaras Hindu University has adopted the Office Memorandum dated 01.05.1987 issued by Government of India by a notification dated 09.04.1988, i.e., much after the original cut off date, i.e., 30.09.1987, and has fixed the new cut off date, i.e., 09.07.1988 to submit option and since said notification is not under challenge, therefore, while applying the judgment of Supreme Court in University of Delhi vs. Smt. Shashi Kiran (supra), above referred dates rendered it distinguishable.

                  (c) If the law as held by Supreme Court in University of Delhi vs. Smt. Shashi Kiran (supra) is applied in the facts and circumstances of present cases taking note of above referred dates, the only interpretation would be that any option given beyond 09.07.1988 would non est, however, on basis of record, none of petitioners have a case that they have opted to remain in earlier CPF Scheme on basis of above cut off date rather their claim was taken birth only after Banaras Hindu University adopted the Scheme on 09.04.1988 and they have given option before new cut off date, i.e., 09.07.1988, therefore, the benefit of judgment in University of Delhi vs. Smt. Shashi Kiran (supra) would not be applicable to present petitioners. Any other interpretation would render date of adoption and any subsequent cut off date meaningless.

                  (d) It is not the case of petitioners or Respondent-Banaras Hindu University or even Union of India that Office Memorandum dated 01.05.1987 was automatically applicable to all Central Universities without being its specific adoption by a particular University and further that issue was not before the Supreme Court in the case of University of Delhi vs. Smt. Shashi Kiran (supra).”

14. In present case, petitioner – 1 was appointed on the post of Teacher (Mechanic B) in respondent institution on 27.04.1978 and retired from the post of Senior Technical Superintendent on 30.06.2013. The petitioner – 3 was appointed post of Teacher on 19.07.1982 and retired on 31.07.2014 whereas petitioner – 2 has joined his duties on 31.08.1990 and retired on 31.07.2016, therefore, case of petitioner – 2 has to be considered separately since he has joined services in the year 1990 i.e. subsequent to O.M. dated 01.05.1987 and adopted by respondent – IIT on 11.09.1987 and his case would squarely cover with the case of one Sushil Kumar Singh as considered by the Division Bench of this Court in Prof. Harish Chandra Chaudhary (supra) and for reference, paragraph – 57 of Harish Chandra Chaudhary (supra) is quoted below :-

                  “57. Having considered the respective submissions advanced in respect of the claim of Sri Sinha, we find that on the date of his substantive appointment in BHU i.e. 9.7.1990, he was covered by the pension scheme. Even his temporary appointment in the BHU on 9th July, 1988, was after the cut-off-date i.e. 1.1.1986. It is clearly revealed that he had objected to his inclusion in the CPF Scheme. He was in fact included in the pension scheme, but it was on account of resolution of the Executive Council, dated 19-20th July, 2002, that such benefit was withdrawn from him. There was otherwise no occasion for him to be extended the option to continue under the CPF Scheme. He has been representing against such decision and has approached the Court after the issue has been settled by the Supreme Court. In the facts of the case, we find that his case is clearly covered by the pension scheme and the question of exercising any option by him, to continue under the CPF Scheme, is not countenanced under the Office Memorandum, dated 1.5.1987. The BHU on its own has accepted the claim of Dr. Sushil Kumar Singh in similar circumstances in 2013. There is otherwise no prior adjudication of the claim of Sri Sinha by this Court.”

15. So far as argument of learned counsel for respondent - IIT that there is a delay in approaching this Court is concerned, Court finds that it was default of the respondent institution, therefore, delay will not come in the way if this writ petition is allowed qua to petitioner – 2 viz. Phool Singh Chauhan.

16. So far as an act whereby said petitioner has given option to continue in CPF Scheme is concerned, it would not be considered as non-est since he joined when CPF Scheme was enforced as the same has been held in Prof. Harish Chandra Chaudhary (supra).

17. So far as petitioners – 1 and 3 are concerned, admittedly, they have given option to stay with CPF Scheme not only once but twice i.e. firstly on 09.10.1987 and 19.10.1987 respectively and secondly on 06.02.1992 and 07.02.1992 respectively, despite they have opportunities to shift to GPF Scheme. They were granted third opportunity after 15 years of their respective services, still they have not come over to GPF Scheme, therefore, they have failed to exercise their right, if any.

18. The argument of learned Senior Advocate for said petitioners that since O.M. dated 01.05.1987 whereby last date to give option was fixed for 30.09.1987 with a declaration that if an employee did not give option to remain in earlier scheme, he will be deemed to be switched over of GPF Scheme, therefore, once institution has adopted said O.M. by their Office Order dated 11.09.1987, they are deemed to be switched over to GPF Scheme. Notwithstanding any option given to remain in GPF Scheme since it would be non-est.

19. Aforesaid argument of learned Senior Counsel on face of it appears to be attractive, however, still there are two factors which go against aforesaid submissions that firstly OM dated 01.05.1987 was not automatically adopted by respondent-institution rather it was adopted by an independent act which they took on 11.09.1987 with a specific timeline that options could be exercised by 30.12.1987 if they wanted to remain in CPF Scheme and admittedly, petitioners – 1 and 3 have given option to remain in CPF on 09.10.1987 and 19.10.1987 respectively, therefore, they are bound by said option and question of non-est would not be applicable in given circumstances of the case.

20. In this regard, Court again takes note of paragraph 30 (c) of Priyanka Upadhyay (supra) which was upheld by Division Bench of this Court and for reference, said paragraph 30(c) is quoted below :-

                  “30. The outcome of above discussion is that:

                  a. …………

                  b. …………

                  (c) If the law as held by Supreme Court in University of Delhi vs. Smt. Shashi Kiran (supra) is applied in the facts and circumstances of present cases taking note of above referred dates, the only interpretation would be that any option given beyond 09.07.1988 would non est, however, on basis of record, none of petitioners have a case that they have opted to remain in earlier CPF Scheme on basis of above cut off date rather their claim was taken birth only after Banaras Hindu University adopted the Scheme on 09.04.1988 and they have given option before new cut off date, i.e., 09.07.1988, therefore, the benefit of judgment in University of Delhi vs. Smt. Shashi Kiran (supra) would not be applicable to present petitioners. Any other interpretation would render date of adoption and any subsequent cut off date meaningless.”

21. Considering overall circumstances of the case, this Court does not find that claim as sought by petitioners – 1 and 3 has any force, therefore, their claim cannot be allowed on basis of above discussion, hence, rejected.

22. So far as petitioner – 2 is concerned, his claim has already been accepted in preceding paragraph of this judgment. The said petitioner has to return the amount towards CPF with 5% simple interest. The University will fix the period for such return.

23. In view of above, this writ petition is allowed qua to petitioner – 2 and it is dismissed qua to petitioners – 1 and 3.