Supreme Court of India
UNION OF INDIA AND ORS.versusA.J. FABIAN
- Citation
- 1996 INSC 1448
- Decided
- 9 December 1996
- Disposal
- Appeal(s) allowed
Holding
A retiree who failed to opt for the pension scheme within the stipulated period is not entitled to its benefits, and the Tribunal's order granting such relief is set aside.
Summary
The respondent, a retired railway chief inspector, was given six opportunities to switch from the Provident Fund Scheme to the Pension Scheme but never exercised the option. In 1993 he applied to be allowed to opt for the pension scheme; the Government rejected the request and he filed a petition before the Central Administrative Tribunal, which allowed his claim. The Union of India appealed to the Supreme Court, which examined earlier decisions, notably Krishena Kumar v. Union of India (1990), D.S. Nakara v. Union of India (1983), and V.K. Ramamurthy v. Union of India (1996). The Court held that a retiree who failed to opt within the prescribed period is not entitled to the pension scheme and that denying the late option does not violate Article 14. Consequently, the Tribunal's order was set aside and the appeal was allowed without costs.
Issues considered
- Whether a retired employee who did not exercise the option to switch to the pension scheme within the prescribed time can be permitted to do so later.
- Whether the denial of a late option infringes the equality clause under Article 14 of the Constitution.
- Whether the Central Administrative Tribunal erred in relying on earlier case law to grant relief.
Subjects
Pension schemeProvident FundRetirementOption to switchArticle 14EqualityCentral Administrative TribunalRailway employeeSuperannuationSupreme Court appeal
Judgment
A UNION OF INDIA AND ORS.
v.
A.J. FABIAN
DECEMBER 9, 1996
B [K. RAMASWAMY AND G.T. NANAVAT!, JJ.]
Se1Vice Law-Pension-Railway employe~Superannuation-Switch
ing over from provident fund scheme to pension scheme-Option given to
employee six times not availed by him--After a very long time request made
C by employee to pemiit him to opt pension scheme-Rejection of request-Peti-
tion filed by employee allowed by Tribunal-Appeal preferred by Union of
India-Held employee was not entitled to benefit of pension scheme-Order
of Tribunal set aside.
Krishena Kumar & Ors. Etc. v. Union of India & Ors., [1990) 3 SCR
D 352, relied on.
D.S. Nakara & Ors. v. Union of India, [19831 1 SCC 305 and V:K
Ramamurthy v. Union of India & Anr., [1996] Suppl. 4 SCR 583, referred
to.
E P. Lakshmana Rao v. Union of India, SLP (C) No. 17730/95 decided
by Supreme Court on 2.4.1996, distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 16861 of
1996.
F From the Judgment and Order dated 29.9.95 of the Central Ad-
ministrative Tribunal, Ernakulam in Kerala in OA. No. 686 of 1995.
N.N. Goswami, A.D.N. Rao and Arvind Kr. Sharma for the Appel-
lants.
G Mrs. K. Sarada Devi for the Respondent.
The following Order of the Court was delivered :
Delay condoned. Leave granted.
H This appeal by special leave arises from the order of Central Ad-
690
U.O.l. v. AJ. FABIAN 691
ministrative Tribunal, Ernakulam Bench passed in O.A. No. 686/95 on A
September 29, 1995.
The respondent was a railway employee. He retired from service, on
attaining superannuation, on April, 21, 1972 as Chief Inspector of Com-
munications. Consequent on the switching over from the Provident Fund
B
Scheme to the Pension Scheme, options had been given to the employees.
In fact option for six times was given to the respondent, but he did not
avail of the same. However, an application had been made on December
19, 1993 requesting the appellants to permit him to opt to the Pension
Scheme which was rejected by the Government by order dated January 19,
1994. Thereafter, the respondent filed 0 .A. in the Tribunal which, in the C
impugned order has allowed the petition relying upon the judgment of the
CAT, Bombay Bench in 0.A. against which SLP No. 5973/88 was filed and
the same was dismissed by this Court in limine. The controversy is no
longer res integra. A Constitution Bench of this Court in Krishena Kumar
& Ors. Etc. v. Union of India & Ors., (1990] 3 SCR 352 had held that since D
the retirees with Provident Fund Scheme and those with pension scheme
do not have the same pay-scales, there is no discrimination in matter of
extending the benefit of pension scheme since they did not exercise the
option within given time. The pension scheme having been formulated and
options having been given to the retired employees after failure to avail of
the remedy, they are not entitled to come back for the benefit of pension. E
It was held that it is not violative of Article 14 of the Constitution. This
Court had distinguished the decision of the Constitution Bench decision in
D.S. Nakara & Ors. v. Union of India, (1983] 1 SCC 305 and accordingly
allowed the appeal and held that they are not entitled to those benefits.
The same question was again considered by this Court in V.K Ramamurthy F
v. Union of India & Anr., (1996) Suppl. 4 SCR 583. Therein this Court
surveyed the entire case law and held thus :
"In view of the aforesaid series of decisions of this Court explaining
and distinguishing Nakara's case the conclusion is irresistible that
the petitioner who retired in the year 1972 and did not exercise G
his option to come over to the Pension Scheme even though he
was granted six opportunities is not entitled to opt for Pension
Scheme at this length of time. The decision of Ghansham Das case ·
on which the learned counsel for the petitioner placed reliance,
the Tribunal relied upon Nakara's case and granted the relief H
692 SUPREME COURT REPORTS (1996) SUPP. 9 S.C.R.
A without considering that Nakara's decision has been distinguished
in that Constitution Bench case of Krishena Kumar and other cases
referred to supra. Therefore, dismissal of the Special Leave Peti-
tion against the said judgment of the Tribunal cannot be held to
be law laid down by this Court, in view of what has been stated in
Krishena Kumar's case. The other decision of this Court, in the
B
case of R. Snbramanian (Writ Petition (Civil) No. 881of1993) the
Court merely relied upon the dismissal of Special Leave Petition
against the judgment of Tribunal in Ghansham Das case and
disposed of the matter and, therefore, the same also cannot be
held to be a decision on any question of law."
c
Accordingly the Writ Petition was dismissed.
It is contended by Smt. Sarada Devi, learned counsel for the respon-
dent, that in Krishena Kumar's case this Court had upheld the decision of
D the Bombay Bench which was followed by Ernakulam Bench and that
therefore, the view taken by the Tribunal is correct in law. We fail to
appreciate the contention. This Court having laid down the law distin-
guished that judgment only on facts, but that is not to say that the view
expressed by the Bombay Bench was approved by this Court in Krishena
Kumar's case. Therefore, it does not form any basis to be followed. On the
E other hand, Krishena Kumar's ratio binds the Tribunal as law under Article
141 and should be followed.
It is then contended that since the respondent died and the legal
.
representatives of the retiree wonld be entitled to the benefits, it would not
F be a case warranting interference. In support thereof, she relies upon an
order passed by this Court in CA. @ SLP (C) No. 17730/95 titled P.
Lakshmana Rao v. Union of India, on April, 2, 1996. In that case on the
basis of the concession made by the counsel for the Union, that order came
to be passed. Under those circnmstances, we do not think that it is case
entitling the respondent to the same benefit.
G
The appeal is accordingly allowed. The order of the Tribunal stands
set aside, but in the circumstances, without costs.
T.NA Appeal allowed:
H
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