UNION OF INDIA THROUGH THE SECRETARY, NATIONAL COUNCIL OF EDUCATIONAL RESEARCH & TRAINING.versusSHYAM BABU MAHESHWARI

                        [2011] 7 S.C.R. 548


A       UNION OF INDIA THROUGH THE SECRETARY,
     NATIONAL COUNCIL OF EDUCATIONAL RESEARCH &
                        TRAINING.
                                 v.
                   SHYAM BABU MAHESHWARI
B                 {Civil Appeal No. 4202 of 2011)
                           MAY 09, 2011
         [R.V. RAVEENDRAN AND A.K. PATNAIK, JJ.)

C       Service Law:

         Service benefits - Switchover from CPF scheme to
    pension scheme - Permissibility of - Respondent-employee
    while he was in service of NCERT had opted for the CPF
0   Scheme    way back in 1977 and on his retirement, had availed
    the benefits of the CPF Scheme - Claim of respondent to
    switch over from CPF scheme to Pension Scheme - Allowed
    by Tribunal, the Single Judge and th~ Division Bench of the
    High Court - Justification of - Held: Not justified - Once an
    employee has opted for the CPF Scheme, his exercise of
E option is final and he is not entitled to change over to the
    Pension Scheme because the two schemes are entirely
    different - However, Ministry of Personnel and Training by
    0. M. dated 06. 06. 1985 gave an opportunity to Central
    Government employees who had earlier opted for the CPF
F Scheme to opt for the Pension Scheme - The 0. M. dated
    06.06.1985 was adopted by the NCERT in its Circular dated
    18. 07. 1985 - It is clear from the language of 0. M. dated
    06.06.1985 that the option to an employee to switch over from
    the CPF Scheme to the Pension Scheme was open to only
G those employees who were in service on 31.03.1985 and who
    were retiring on or after 31.03.1985 - By 31.03.1985, the
    respondent had retired, his date of retirement being
    31.07.1984 - He was, therefore, not entitled to fresh option to
  · switch over from the CPF Scheme to the Pension Scheme -
H                                M8
 UNION OF INDIA THR. SEC., NATIONAL COUNCIL OF EDU. 549
      RES. & TRAIN. v. SHYAM BABU MAHESHWARI
Contributory Provident Fund Rules, 1962 - Rule 38 - Central   A
Civil Services (Pension) Rules, 1972.

     The respondent was in the service of the National
Council of Educational Research and Training (NCERT).
The employees of the NCERT were given an option to
                                                              8
choose either the CPF Scheme or the General Provident
Fund-cum-Pension Scheme. In 1977, the respondent
opted for the CPF Scheme. On 31.07.1984, the respondent
retired from service and withdrew his benefits under the
CPF Scheme. On 06.06.1985, the Ministry of Personnel
and Training Administrative Reforms & Public Grievances       C
and Pension (Department of Personnel and Training)
issued O.M. No.F.3(1)-Pension Unitl85 intimating the
decision of the Government that Central Government
employees who had retained the Contributory Provident
Fund benefits in terms of Rule 38 of the Contributory         D
Provident Fund Rules, 1962 or in terms of any other
orders issued in that behalf, may be allowed another
opportunitY to opt for the Pension Scheme as laid down
in the Central Civil Services (Pension) Rules, 1972. In the
O.M. dated 06.06.1985, it was made clear that the option      E
was open to those employees who were in service on
31.03.1985 and were retiring from service on or after that
date.

     NCERT issued a circular dated 18.07.1985 intimating      F
all concerned that employees of NCERT, who had earlier
opted for the CPF Scheme, may exercise their option
before 06.12.1985 to switch over to the Pension Scheme
and such option once exercised will be treated as final.
Before his retirement, the Respondent claims to have          G
applied on 27.02.1984 to change over from the CPF
Scheme to the Pension Scheme. The said request for
change over from the CPF Scheme to the Pension
Scheme was rejected on 23/26.06.1989.
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    550      SUPREME COURT REPORTS              [2011] 7 S.C.R.


A      The respondent filed an application before the
  Rajasthan Non-Government Education Tribunal in the
  year 1995, seeking permission to opt for the Pension
  Scheme. The Tribunal relying on the decision of this
  Court in R. Subramaniam directed the appellant to declare
B the respondent as entitled to the benefits of the Pension .
  Scheme with effect from the date of his retirement and fix '
  his pension accordingly. The appellant challenged the
  order of the Tribunal before the High Court in Civil Writ
  Petition which was dismissed by a Single Judge of the
c High Court. The appellant then filed Civil Special Appeal
  (Writ) which was also dismissed by the Division Bench
  of the High Court.

        In the instant appeal, the appellant submitted that a
   Constitution Bench of this Court in Krishena Kumar has
D clearly held that employees who opt for the CPF Scheme
   and employees who opt for the Pension Scheme fall into 1
   two distinct classes and once an employee opts within
 · the cut-off date to be under the crF Scheme, he cannot
   later on make a request to switch over to the Pension
E Scheme. He further submitted that in any case it will be
   clear from the language of the O.M. dated 06.06.1985
   which was adopted by the NCERT that the option to
   switch over from the CPF Scheme to the Pension Scheme
   was available to only those employees who were in
F service on 31.03.1985 and were to retire from service on
   or after 31.03.1985 and not to the appellant who was not
   in service on 31.03.1985 having retired on 31.07.1984.
          Allowing the appeal, the Court
G        HELD:1. In the decision of this Court in R.
    Subramaniam, the Tribunal, by its order dated 11.11.1987
    had directed that Railway employees who had indicated
    their option in favour of Pension Scheme either at any
    time while in service or after their retirement and who then
H
 UNION OF INDIA THR. SEC., NATIONAL COUNCIL OF EDU. 551
      RES. & TRAIN. v. SHYAM BABU MAHESHWARI

 desired. to opt for the Pension Scheme should be given A
 the benefit of the Pension Scheme. This order dated
 11.11.1987 of the Tribunal was challenged by the Union
 of India in a Special Leave Petition, but the Special Leave
 Petition was dismissed and a Review Petition was also
 dismissed by this Court.. When t!le matter came. before B
 this Court for the second time in R. Subramaniam this
 Court held that the Union of India cannot resist the claim
 of R. Subramaniam. It is thus clear that in R. Subramaniam
.the claiin of the employee had to be allowed by this Court
 because in an earlier order, the Tribunal had allowed the .· c
 claim of the railway employees to switch over to the
 Pension Scheme and the order of the Tribunal had
 become final on the dismissal of the Special Leave
 Petition and the Review Petition by this Court. The facts
 of this case are entirely different. There is no such earlier
                                                               0
 order of the Tribunal or a Court allowing the claim of the
 respondent to switch over from the CPF Scheme to the
 Pension Scheme, which had become final. In the instant
 case, the Tribunal, the Single Judge and the Division
 Bench of the High Court were thus not right in relying on
 the decision of this Court in R. Subramaniam in allowing E
 the claim of the respondent to switch over from the CPF
 Scheme to the Pension Scheme. [Para 7] [555-E-H; 556-
 A-D]

     R. Subramaniam v. Chief Personnel Officer, Central       F
Railways, Ministry of Railways (AIR 1995 SC 983) -
distinguished.

     2. The respondent while he was in service of NCERT
had opted for the CPF Scheme way back in 1977 and on
his 1·etirement, he had availed the benefits of the CPF       G
Scheme. Once an employee has opted for the CPF
Scheme, his exercise of option is final and he is not
entitled to change over to the Pension Scheme because
the two schemes are entirely different. It, however,
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    552      SUPREME COURT REPORTS                 [2011] 7 S.C.R.


A appears that the Government in the Ministry of Personal
  and Training by the O.M. dated 06.06.1985 gave an
  opportunity to Central Government employees who had
  earlier opted for the CPF Scheme to opt for the Pension
  Scheme. The O.M. dated 06.06.1985 was adopted by the
B NCERT in its Circular dated 18.07.1985. It is clear from the
  language of the O.M. dated 06.06.1985 that the option to
  an employee to switch over from the CPF Scheme to the
  Pension Scheme was open to only those employees who
  were in service on 31.03.1985 and who were retiring on
c or after 31.03.1985. By 31.03.1985, admittedly, the
  respondent had retired, his date of retirement being
  31.07.1984. He was, therefore, not entitled to fresh option
  to switch over from the CPF Scheme to the Pension
  Scheme. [Para 8] [556-E-G]
D        Krishena Kumar, etc. v. Union of India & Ors. [(1990) 4
    SCC 207: 1990 (3) SCR 352]; V.K. Ramamurthy v. Union
    of India & Anr. [(1996) 10 SCC 73: 1996 (4) Suppl. SCR 583]
    and Union of India & Ors. v. Kai/ash ((1998) 9 SCC 721] -
    relied on.
E
                         Case Law Reference:
          AIR 1995 SC 983              distinguished Para 4, 5,
                                                    6, 7,8

F         1990 (3) SCR 352             relied on    Para 5, 8
          1996 (4) Suppl. SCR 583      relied on    Para 5, 8
          (1998) 9 sec 121             relied on    Para 5, 8
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
G 4202 of 2011.

          From the Judgment & Order dated 23.5.2006 of the High
    Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in DB
    Civil Appeal (Writ) No. 898 of 2005.
H
 UNION OF INDIA THR. SEC., NATIONAL COUNCIL OF EDU.        553
      RES. & TRAIN. v. SHYAM BABU MAHESHWARI
    Raju Ramachandran, S. Rajappa, Dr. Puran Chand, B.             A
Badrinath, Puneet Sharma for the Appellant.

   V. Seshagiri, Alok Tiwari, (for Dua Associates) for the
Respondents.

    The Judgment of the Court was delivered by                     B

    A. K. PATNAIK, J. 1.Leave granted.

     2. This is an appeal against the order dated 23.05.2006
of the Division Bench of the Rajasthan High Court, Jaipur Bench,
dismissing Civil Special Appeal (Writ) No.898 of 2005 of the       C
appellant.

     3. The facts of this case are that the respondent was in the
service of the National Council of Educational Research and
Training (for short 'the NCERT'). The employees of the NCERT D
were given an option to choose either the Central Provident
Fund Scheme (for short 'the CPF Scheme') or the General
Provident Fund-cum-Pension Scheme (for short 'the Pension
Scheme'). In 1977, the respondent opted for the CPF Scheme.
On 31.07.1984, the respondent retired from service and E
withdrew his benefits under the CPF Scheme. On 06.06.1985,
the Ministry of Personnel and Training Administrative Reforms
& Public Grievances and Pension (Department of Personnel and
Training) issued O.M. No.F.3(1)-Pension Unit/85 (for short 'the
O.M. dated 06.06.1985') intimating the decision of the F
Government that Central Government employees who had
retained the Contributory Provident Fund benefits in terms of
 Rule 38 of the Contributory Provident Fund Rules, 1962 or in
terms of any other orders issued in that behalf, may be allowed
another opportunity to opt for the Pension Scheme as laid down
in the Central Civil Services (Pension) Rules, 1972. In the O.M. G
dated 06.06.1985, it was made clear that the option was open
to those employees who were in service on 31.03.1985 and
were retiring from service on or after that date. NCERT issued
a circular dated 18.07.1985 intimating all concerned that
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    554     SUPREME COURT REPORTS                [2011] 7 S.C.R.


A   employees of NCERT, who had earlier opted for the CPF
    Scheme, may exercise their option before 06.12.1985 to switch
    over to the Pension Scheme and such option once exercised
    will be treated as final.

B       4. Before his retirement, the Respondent claims to have
  applied on 27.02.1984 to change over from the CPF Scheme
  to the Pension Scheme. The said request for change over from
  the CPF Scheme to the Pension Scheme was rejected ori 23/
  26.06.1989. The respondent filed an application before the
  Rajasthan Non-Government Education Tribunal, Jaipur (for short
C 'the Tribunal') in the year 1995, seeking permission to opt for
  the Pension Scheme. By order dated 02.11.1995, the Tribunal
  relying on the decision of this Court in Subramaniam v. Chief
  Personnel Officer, Central Railways, Ministry of Railways (AIR
  1995 SC 983) directed the appellant to declare the respondent
D as entitled to the benefits of the Pension Scheme with effect
  from the date of his retirement and fix his pension accordingly.
  The appellant challenged the order of the Tribunal before the
  High Court in Civil Writ Petition No.1447 of 1997 which was
  dismissed by the learned Single Judge of the High Court by
E order dated 02.08.2005. The appellant then filed Civil Special
  Appeal (Writ) No.898 of 2005 which was also dismissed by the
  Division Bench of the High Court by the impugned order.

         5. Learned counsel for the appellant submitted that the
F Tribunal, the learned Single Judge of the High Court and the
  Division Bench of the High Court have all relied on the decision
  of this Court in R. Subramaniam v. Chief Personnel Officer,
  Central Railways, Ministry of Railways (AIR 1995 SC 983 =
  (1996) 1O sec 72) which was rendered on the peculiar facts
  of that case. He submitted that a Constitution Bench of this
G Court in Krishena Kumar, etc. v. Union of India & Ors. [(1990)
  4 sec 207] has clearly held that employees who opt for the
  CPF Scheme and employees who opt for the Pension Scheme
  fall into two distinct classes and once an employee opts within
  the cut-off date to be under the CPF Scheme, he cannot later
H
UNION OF INDIA THR. SEC., NATIONAL COUNCIL OF EDU. 555
RES. & TRAIN. v. SHYAM BABU MAHESHWARI [AK PATNAIK, J.]
on make a request to switch over to the Pension Scheme. He        A
submitted that the decision of the Constitution Bench of this
Court in Krishena Kumar (supra) has subsequently been
followed in V.K. Ramamurthy v. Union of India & Anr. [(1996)
10 SCC 73] and Union of India & Ors. v. Kailash ((1998) 9
SCC 721) and in these subsequent decisions this Court has         B
explained that the decision of this Court in R. Subramaniam
(supra) was rendered on the particular facts of that case. He
further submitted that in any case it will be clear from the
language of the O.M. dated 06.06.1985 which was adopted by
the NCERT that the option to switch over from the CPi= Scheme     c
to the Pension Scheme was available to only those employees
who were in service on 31.03.1985 and were to retire from
service on or after 31.03.1985 and not to the appellant who was
not in service on 31.03.1985 having retired on 31.07.1984.

     6. Learned counsel for the respondent, on the other hand,    D
supported the orders of the Tribunal, the learned Single Judge
of the High Court and the Division Bench of the High Court and
relied on the decision of this Court in R. Subramaniam (supra).

    7. We have carefully perused the decision of this Court in    E
R. Subramaniam (supra) on which reliance has been placed
by the Tribunal, the learned Single Judge and the Division
Bench of the High Court as well as learned counsel for the
respondent and we find that in that case the Central
Administrative Tribunal, Bombay, by its order dated 11.11.1987    F
had directed .that RaHway employees who had indicated their
option in favour of Pension Scheme either at any time while in
service or after their retirement and who then desired to opt
for the Pension Scheme should be given the benefit of the
Pension Scheme. This order dated 11.11.1987 of the Central        G
Administrative Tribunal was challenged by the Union of India
in a Special Leave Petition, but the Special Leave Petition was
dismissed and a Review Petition was also dismissed by this
Court. When the matter came before this Court for the second
time in R. Subramaniam (supra) this Court hel.d that the Union
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    556       SUPREME COURT REPORTS                [2011] 7 S.C.R.


A of India cannot resist the claim of R. Subramaniam. It is thus
  clear that in R. Subramaniam (supra) the claim of the
  employee had to be allowed by this Court because in an earlier
  order, the Central Administrative Tribunal had allowed the claim
  of the railway employees to switch over to the Pension Scheme
B and the order of the Central Administrative Tribunal had become
  final on the dismissal of the Special Leave Petition and the
  Review Petition by this Court. The facts of this case are entirely
  different. There is ho such earlier order of the Tribunal or a
  Court allowing the claim of the respondent to switch over from
c the CPF Scheme to the Pension Scheme, which had become
  final. The Tribunal, the learned Single Judge and the Division
  Bench of the High Court were thus not right in relying on the
  decision of this Court in R. Subramaniam (supra) in allowing
  the claim of the respondent to switch over from the CPF
0 Scheme to the Pension Scheme.
      · 8. We may now consider whether dehors the decision of
  this Court in R. Subramaniam (supra) the respondent could be
  allowed to opt for the Pension Scheme having earlier opted for
  the CPF Scheme while in service. Admittedly, the respondent
E while he was in service of NCERT had opted for the CPF
  Scheme way back in 1977 and on his retirement, he had
  availed the benefits of the CPF Scheme. This Court has held
  in Krishena Kumar, etc. v. Union of India & Ors., V.K.
  Ramamurthy v. Union of India & Anr. and Union of India &
F Ors. v. Kai/ash (supra) that once an employee has opted for
  the CPF Scheme, his exercise of option was final and he is
  not entitled to change over to the Pension Scheme because
  the two schemes are entirely different. It, however, appears that
  the Government in the Ministry of Personal and Training by the
G O.M. dated 06.06.1985 gave an opportunity to Central
  Government employees who had earlier opted for the CPF
  Scheme to opt for the Pension Scheme. The relevant portion
  of the O.M. dated 06.06.1985 is extracted hereinbelow:-

          "... In the light of these changes, the President is now
H
UNION OF INDIA THR. SEC., NATIONAL COUNCIL OF EDU. 557
RES. & TRAIN. v. SHYAM BABU MAHESHWARI [AK. PATNAIK, J.]
    pleased to decide that Central Government employees            A
    who have retained the Contributory Provident Fund benefits
    in terms of rule 38 of the Contributory Provident Fund Rules
    (India), 1962 or in terms of any·other orders issued in this
    behalf, may be allowed another opportunity to opt for the
    Pension Scheme as laid down in the Central Civil               8
    Services (Pension) Rules, 1972. The option is open to
    those Government employees who were in service on the
    31st March, 1985 and retiring from service on or after that
    date. The option should be exercised within a period of
    six months from the date of issue of this O.M. Option once     C
    exercised shall be final."

     The O.M. dated 06.06.1985 has been adopted by the
NCERT in its Circular dated 18.07.1985. It will be clear from
the language of the O.M. dated 06.06.1985 that the option to
an employee to switch over from the CPF Scheme to the              D
Pension Scheme was open to only those employees who were
in service on 31.03.1985 and who were retiring on or after
31.03.1985. By 31.03.1985, admittedly, the respondent had
retired, his date of retirement being 31.07.1984. He is,
therefore, not entitled to fresh option to switch over from the    E
CPF Scheme to the Pension Scheme.

     9. For these reasons, we set aside the orders of the
Tribunal, the learned Single Judge of the High Court and the
Division Bench of the High Court and allow this appeal. There
shall be no order as to costs.                                     F

B.B.B.                                       Appeal allowed.