SH. V.K RAMAMURTHYversusUNION OF INDIA AND ANR.

                          SH. V.K RAMAMURTHY                                         A
                                    v.
                         UNION OF INDIA AND ANR.

                                AUGUST 13, 1996

               [K RAMASWAMY AND G.B. PA'ITANAIK, JJ.)                                B


-         Service Law:

           Pension-Railway employee-Availing benefits of CPF scheme-Intro-
    duction of pension scheme-Six options given to him for switchover to             C
    pension-Employee consistently opting to continue for CPF scliem,,.---Retire-
    ment of employee--24 years after retirement filing of writ in Supreme
    Court-Seeking declaration for switchover to pension schemr-Held writ
    petition not maintainable.

          Constitution of India, 1950 :                                              D
          Arlicle 32-Writ-Laches-Dismissal of writ.

          The petitioner, a railway employee, superannuated from service on
    14th July, 1972. While he was still in service a pension scheme was
    introduced. Prior lo his retirement as many as six options were given to         E
    him to choose whether he would remain in provident fund scheme or would
    switch over to the pension scheme. He consistently and deliberately cho~e
    to continue in the Provident Fund Scheme. On his superannuation the
    entire dues which he was entitled to from the provident fund scheme were
    paid to him. After 24 years of his retirement he filed a writ petition in this
    Court under Article 32 of the Constitution seeking directions to the             F
    itailway Administration :(i) to allow the petitioner to switch over from the
    Provident Fund Scheme to the Pension Scheme; and (ii) that he should be
    granted the pensionary benefit w.e.f. the date of his superannuation i.e.
    14.7.1972.
                                                                                     G
          Dismissing the petition, this Court

          HELD : The petitioner who retired in the year 1972 and did not
    exercise 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. (588-E]                                                          H
                                         583
    584                    SUPREME COURT REPORTS [1996] SUPP. 4 S.C.R.

A         Krishena Kumar v. Union of India and Ors., [1990] 4 SCC 207; State
    of Rajasthan v. Rajastltan Pensioner Samaj, [1991] Supp. 2 SCC 141 and
    All India Reserve Bank Retired Officers Association and Ors. v. Union of
    India and A11r., (1992) Supp. 1 SCC 664, relied on.

            D.S. Nakara v. Union of India, [1983) 1 SCC 305, rererred to.
B
            CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 174 of
    1996.

            (Under Article 32 of the Constitution of India.)

C           K.B.S. Rajan and Ms. Pushpa Rajan for the Petitioner.

            N.N. Goswami, A.S. Bhasme and T.C. Sharma for the Respondents.

            The Judgment of the Court was delivered by

D          PATTANAIK, J. This petition under Article 32 of the Constitution is
    by a superannuated railway employee seeking a mandamus from this Court
    to the railway administration directing them to allow the petitioner to
    switch over from the Provident Fund Scheme to the Pension Scheme and
    for a further direction that the petitioner should be granted the pensionary
    benefits w.e.f. the date of his superannuation i.e. 14.7.1972.
E
           The undisputed facts are that the petitioner started his career as an
    employee under Madras and Southern Maharata Railway on 23rd of July,
    1938. The said Railway later on became the Southern Railway. On attaining
    the age of superannuation, after rendering 34 years of service the petitioner
    retired on 14th July, 1972. The railway administration had sought for the
F
    option from the petition as to whether he would remain in Contributory
    Provident Fund Scheme or would switch over to the Pension Scheme. The
    petitioner, however, opted to continue in the Contributory Provident Fund
    Scheme and according on his superannuation the entire dues which he was
    entitled to from the Provident Fund Scheme was paid to him. The further
G   case of the petitioner is that since the railway administration had allowed
    some of its employees in the year 1984 to opt for the Pension Scheme even
    though earlier they had retired on receiving the provident fund dues, the
    petitioner also filed a representation to the General Manager, Southern
    Railway as well as to the Chairman, Railway Board. Not being favoured
H   with any reply the petitioner filed a representation to the Hon'ble Minister
                      V.K. RAMAMUR1HY v. U.0.1.                        585

for Railways. The petitioner also filed a representation in August, 1986 to A
the Pension Adalat but the said Adalat gave the reply that his case could
not come within the purview of Pension Adalat. Petitioner, thereafter,
made one or two further representations to different authorities.
Meanwhile, a retired employee had approached the Central Administrative
Tribunal, Bombay Bench and the Tribunal grantetl the benefit of coming B
to the Pension Scheme to the said applicant - Ghansham Das. The
petitioner also came to know that this Court in R. Subramanian v. C.P.O.
had allowed a retired employee to come over to the Pension Scheme who
had earlier opted for Provident Fund Scheme. The petitioner, therefore,
finally approached this Court for the relief as already stated. The Respon-
dents filed a counter affidavit taking the stand that in view of Constitutionc
Bench decision in Krishena Kumar v. Union of India lllld Others, [1990] 4
sec 207, which has been followed in several other cases, the petitioner
having opted to remain in the Provident Fund Scheme and having
withdrawn the entire dues which he was entitled to under Provident Fund
Scheme cannot be allowed to switch over to the pension Scheme after lapse D
of 24 years. It has also been stated in the said counter affidavit that prior
to petitioner's retirement on 14th July, 1972 as many as six options had
been given to him to choose whether he would remain in the Provident
Fund Scheme or would switch over to the Pension Scheme and the
petitioner consistently and deliberately chose to continue in the Provident E
Fund Scheme and received all his dues from the said scheme and, there-
fore, he cannot be allowed now to switch over to the Pension Scheme after
 this length of time. The short question that arises for consideration, there-
fore, is whether the Pension Scheme though was in operation while the
petitioner was in service and option was sought for but the petitioner never
                                                                               F
opted for the same and on the other hand deliberately opted for Provident
Fund Scheme, will he be entitled to come over the Pension Scheme after
24 years of his retirement? The main plank of the argument advanced by
the learned counsel for the petitioner is the decision of this Court in R.
Subramanian's case (Writ Petition (Civil) No. 881 of 1993) as well as the
decision of the Central Administrative Tribunal, Bombay Bench in Ghan- G
sham Das case against which decision the Railways had approached this
Court in Special Leave Petition (Civil) No. 5973 of 1988 but the same was
dismissed on 5.9.1988. Mr. Goswami, the learned senior counsel appearing
for the railway administration on the other hand contended that neither in
Ghansham Das case nor in R. Subramanian case the Constitution Bench H
    586                  SUPREME COURT REPORTS (1996) SUPP. 4 S.C.R.

A decision of this Court in Krishena Kumar's case has been noticed. On the
    other hand in Ghansham Das the Tribunal relied upon the decision of this
    Court in D.S. Nakara v. U11ion of India, (1983) 1 SCC 305, which decision
    has been noticed and explained away and not followed in the Constitution
    Bench decision in Krishe11a Kumar's case and, therefore, dismissal of
B   Special Leave Petition against the Judgment of the Central Administrative
    Tribunal, Bombay bench cannot have a binding precedent. After Consider-
    ing the rival submissions and after going through the Constitution Bench
    decision of this Court in Krishena Kumar's case referred to supra, we find
    much force in the contention raised by Shri Goswami the learned senior
    counsel for the railway administration.
c
        That the pension Scheme was introduced by the Railway Board since
  16th November, 1957 while the petitioner was still in service is not disputed.
  Further, the assertion of the railway administration that prior to the super-
  annuation of the petitioner on 14th July, 1972 as many as six options had
D been given to the petitioner to ·come over to the Pension Scheme and yet
  he did not choose to come over to the Pension Scheme and on the other
  hand deliberately chose to continue in the Provident Fund Scheme is also
  not disputed. The question that arises for consideration, therefore, is
  whether still the petitioner can be allowed an option to go back to the
E Pension Scheme? In t!Je Constitution Bench decision in Krish11a Kumar's
  case this Court was also considering an identical case of a retired railway
  employee who had opted for the contributory Provident Fund Scheme but
  after his retirement wanted to switch over to the Pension Scheme. This
  Court did not allow the relief of switching over to the Pension Scheme on
  a conclusion that the Pension Scheme and the provident Fund Schemes are
F structrally different and they do not belong to one class. It was also
  observed that in the matter of expenditure includible in the Annual Finan-
  cial Statement, this court has to be loath to pass any order or give any '
  direction, because of the division of functions between the three co-equal
  organs of the government under the Constitution. Referring to the earlier
G decision of the court in Nakara's case, it was observed. that in the Nakara
  it was never held that both the pension retirees and the provident fund
  retirees from a homegeneous class and further in Nakara it was never
  required to be decided that all the retirees form a class. It was also
  observed that while deciding the case of pension retirees in Nakara's case
H the provident fund retirees were not in mind. This Court also further held
                     V.K. RAMAMURIBYv. U.0.1.                         587

in Krishena Kumar's case :                                                  A

        "The Railway Contributory Provident Fund is by definition a fund.
        Besides, the government's obligation towards an employee under
        CPF scheme to give the matching contribution begins as soon as
        his account is opened and ends with his retirement when his rights B
         qua the government in respect of the Provident Fund is finally
        crystallized and thereafter no statutory obligation continues.
        Whether there still remained a moral obligation is a different
        matter. On the other hand under the Pension Scheme the
        government's obligation does not begin until the employees retires
        when only it begins and it continues till the death of the employee. C
        Thus, on the retirement of an employee government's legal obliga-
        tion under the Provident Fund Account ends while under the
        Pension Scheme it begins. The rules governing the Provident fund
        and its contribution are entirely different from the rules governing
        pension. It would not, therefore, be reasonable to argue that what D
        is applicable to the pension retirees must also equally be applicable
        to PF retirees. This being the legal position the rights of each
        individual PF retirees finally crystallized on his retirement
        whereafter no continuing obligation remained while, on the other
        hand, as regard Pension retirees, the obligation continued till their
        death. The continuing obligation of the State in respect of pension E
        retirees is adversely affected by fall in rupee value and rising prices
        which, considering the corpus already received by the PF retirees
        they would not be so adversely affected ipso facto. It cannot
        therefore, be said that it was the ratio decide11di in Nakara that the
        State's obligation towards its PF retirees must be the same as that F
        towards the pension retirees.11




       In State of Rajasthan v. Rajasthan Pensioner Samaj, (1991) Supp 2
SCC 141, this Court also came to hold that the contributory provident fund
retirees form a different class from those who had opted for Pension
Scheme according to the decision in Krishena Kumar's case and as such G
they are not entitled to claim as of right to switch over from Provident Fund
scheme to Pension Scheme and consequently the Contributory Provident
Fund Scheme retirees are not entitled to the benefits granted to the
Pension Retirees. In yet another case of All India Reserve Bank Retired
Officers Association and Others v. Union of India and An~ther, (1992) Supp H
    588                  SUPREME COURT REPORTS [1996] SUPP. 4 S.C.R.

A 1 SCC 664, the Court was also considering the case of the Pension Scheme
  and Contributory Provident Fund Scheme and held that in the case of an
  employee governed by the Contributory Provident Fund Scheme his rela-
  tions with the employer come to an end on his retirement and receipt of
  the contributory provident fund amount but in the case of an employee
  governed under the Pension Scheme his relations \vith the employer merely
B
  undergo a change but do not snap altogether. It is for this reason in case
  of pensioners it is necessary to revise the pension periodically as the
  continuous fall in the rupee value and the rise in prices of essential
  commodities necessitates an adjustment of the pension amount but that is
  not the case of employees governed under the Contributory Provident
C Fund Scheme, since they had received the lump sum payment which they
  were at liberty to invest in a manner that would yield optimum return which
  would take care of the inflationary trends and this distinction between
  those belonging to the pension scheme and those belonging to the Con-
   tributory Provident Fund Scheme has been rightly emphasised by this
D Court in Krishena Kumar's case.

           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 his option to
    come over to the Pension Scheme even though he was granted six oppor-
E   tunities 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 oase and
    granted the relief without considering that Nakara's decision has been
    distinguished in the Constitution Bench case of Krishena Kumar and other
F   cases referred to supra. Therefore, dismissal of the Special Leave Petition
    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 case of R. Subramanian (Writ
    Petition (Civil) No. 881of1993) the Court merely relied upon the dismissal
    of Special leave Petition against the judgment of Tribunal in Ghansham
G   Das case and disposed of the matter and, therefore, the same also cannot
    be held to be a decision on any question of law. In the aforesaid premises
    and in view of the legal position as discussed above the writ petition is
    dismissed but in the circumstances without any order as to costs.


     T.N.A.                                                  Petition dismissed.