UNION OF INDIA AND ORS.versusD.R.R. SASTRI

                      UNION OF INDIA AND ORS.                                    A
                                      v.
                              D.R.R. SASTRI

                          NOVEMBER 22, 1996
                                                                                 B
           [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

      Service Law :

      Pension-Liberalised Pension scheme-Option not communi-
cated-Representation after expiry of option date-Rejected-Relief granted to      c
another employee-No special reasons indicated-Tribunal held that
employee is entitled to exercise option-Held, No inteiference with the order
of Tribunal wa"anted in the absence of any special feature for granting relief
to any other employee-Hence the Respondent Employee not to be deprived
of exercising option.                                                            D
      The respondent, an employee of Indian Railways, went on deputation
to the Heavy Engineving Corporation in the year 1972. While he was in
Railways he had opted for Contributory Provident Fund Scheme. He
resigned from the Railways and was permanently absorbed in Heavy
Engineering Corporation. Employees governed by the Provident Fund                E
Scheme were given opportunity to opt for the liberalised pension Scheme.
The respondent was not informed about the scheme, and he made a
representation requesting the Board to allow him to exercise the option.
The Board rejected the request. The respondent approached. the Tribunal
which held that respondent was entitled to exercise his potion. Aggrieved        F
by the direction of the Tribunal, Railways preferred the present appeal.

      The contention of the appellant was that the respondent having not
exercised his option for the pension scheme within the time specified in
the Board's letter, the Tribunal erred in law in granting the relief.
                                                                                 G
      The contention of the respondent on the other hand was that the
liberalised Pension Scheme having been introduced when he was an
employee under the Railways, he was entitled to opt for the scheme. It was
also contended that when similar opportunity having been given to another
employee he cannot be denied to exercise the option.                       H
                                    151
    152                   SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.
A           Dismissing the appeal, this Court

          HELD : 1. The Tribunal took note of the fact that another employee
    was allowed to exercise the option long after the date of exercising of the
    option has expired and therefore, there should be no ground to discriminate
    the respondent. The appellant was not in a position to indicate any special
B   reason why similar opportunity had been given to another employee. No
    affidavit was filed or material placed on record to indicate any distinguish-
    ing feature granting opportunity to another employee. In the absence of any
    explanation from the appellant to indicate any special feature for granting
    similar relief to another employee, there is no justification for interfering
C   with the impugned direction of the Tribunal. [153-H; 154-A; 155-C]

          2. The Court had called upon the Railway administration to indicate
    whether the period of service rendered by the respondent under Railways
    was taken into account by the Heavy Engineering Corporation for fixing
    his pension on his retirement from the service of the Corporation and
D   whether proportionality of the period of service till the retirement are
    separated to compute the pension and if so computed whether respondent
    would stand to gain any higher pension than is being actually drawn. No
    affidavit was placed by the appellant. The responde'lf has filled an affidavit
    stating that he has not received any pension on his retirement from the
E   Corporation. [154-G-H; 155-A-B]

          3. The respondent, having served for about 22 years, should not be
    deprived of the pensionary benefit when the Government itself had come
    forward with the liberalised pension scheme and gave option to the persons
    already retired to come over to the pension scheme. [155-C]
F
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 14752 of
    1996.

          From the Judgment and Order dated 23.9.94 of the Central Ad-
    ministrative Tribunal, Madras in 0.A. No. 1711of1993.
G
            Y.P. Mahajan and Arvind Kumar Sharma for the Appellar,ts.

         T.C. Chingalvarajan, M.A. Krishna Murthy and Ms. Kokila Vani for
    the Respondent.

H           The Judgment of the Court was delivered by
                U.0.1.v. D.R.R.SAS1RI (PATIANAIK,J.]                153

      PAITANAIK, J. Leave granted.                                         A

      This appeal by special leave as directed against the order of the
Central Administrative Tribunal, Madras dated 23rd September, 1994 in
OA No. 711 of 1993. By the impugned order the Tribunal has directed the
appellant to allow the respondent the· benefit of option for the pension
scheme, on respondent refunding the amount he has received on his
                                                                           B
retirement.

       The admitted facts are that the respondent joined the Indian Rail-
ways in the year 1950 and while continuing there went on deputation to the
Heavy Engineering Corporation during the year 1972. While he was in the    c
railway he had opted for Contributory Provident Fund Scheme. The said
respondent exercised his option for permanent absorption in Heavy En-
gineering Corporation and submitted his resignation from the railways
which was accepted by Railway Board and communicated by letter dated
26th June, 1973. In the year 1973 on the basis of recommendations of the D
Third Pay Commission, liberalised Pension Scheme was introduced and the
Railway Board in its letter dated 22nd July, 1974 decided to give an
opportuniiy to all the persons governed by the Provided Fund Scheme to
opt for the liberalised Pension Scheme. The Railway Board's letter was
communicated to all the General Managers with the direction that it shall
be brought to the notice of all retired railway servants. The case of the E
respondent is that the liberalised Pension Scheme having been introduced
at a point of time when he was an employee under the railways, he was
entitled to opt for the said scheme. But the aforesaid letter of the Railway
Board was not brought to his notice. It is only on 12th June, 1993 the said
respondent made a representation requesting the Railway Board that he F
may be allowed to exercise the option and the Railway Board having
rejected the same by its communication dated 13th July, 1993, respondent
approached the Tribunal. The Tribunal by the impugned order came to
the conclusion that the respondent being in service of the railways on 1st
January, 1973 was entitled to exercise option for coming over to the G
pension scheme in terms of Railway Board's letter dated 23rd July, 1974.
The Tribunal further came to the conclusion that notwithstanding the clear
statement in the Board's letter that it should be brought to the notice of
all the retirees, it had not been brought to the notice of the respondent on
account of which he was prevented from exercising his option. The
Tribunal also took note of the fact that another railway employee was H ·
    154                  SUPREME COURT REPORTS (1996] SUPP. 9 S.C.R.
A allowed to exercise the option long after the date of exercising of option
    has expired and, therefore, there should be no ground to discriminate the ·
    respondent. Challenging the aforesaid direction of the Tribunal the Union
    of India has come in appeal.

B        Mr. Mahajan appearing for the appellant contended that the respon-
  dent having not exercised his option to opt for the pension scheme within
  the time specified in the Board's letter dated 23rd July, 1974 the Tribunal
  erred in law granting him the relief in question. The learned counsel,
  however, was not in a position to indicate any special reason why the
  similar opportunity has been given to another railway employee which has
C been noticed by the Tribunal while granting the relief to the respondent.
  Mr. Mahajan, however contended that in view of the Constitution Bench's
  decision of this Court in Krishan Kumar's case [1990] 4 SCC 207 the
  impugned direction of the Tribunal cannot be sustained. When this case
  listed before this Court on 6th May, 1995, it was brought to the notice of
D the Court that the Government itself has granted a similar benefit to one
  K.V. Kasthuri by an order dated September 19, 1994, even thought he had
  retired in the year 1973. The Court, therefore, called upon the Union
  Government to place the necessary material which enabled the Govern-
  ment to grant the relief to Shri Kasthuri and how his case stands on a
  different footing than the case of the respondent. But not further affidavit
E was filed by the Union of India nor any material was placed to indicate any
  distinguishing feature for granting the relief to Shri K.V. Kasthuri and
  refusing the same to the respondent. Be that as it may when the matter was
  again argued on 20th August, 1996, it was contended on behalf of the
  appellant that the respondent having resigned from the railways and having
F been absorbed by the Heavy Engineering Corporation would be entitled to
  the benefits available to him under the Heavy Engineering Corporation and
  the counsel for the appellant also contended that the Heavy Engineering
  Corporation has already determined the pension of the respondent by
  taking into account the entire period of service from 1952. In view of the
  aforesaid submissions of.the learned counsel appearing for the appellant
G the Court had called upon the railway administration to indicate whether
  the period of service rendered by the respondent from 1950 till July 22,
  1972 under the railways was taken into account by the Heavy Engineering
  Corporation in fixing his pension on his retirement from the service of
  Heavy Engineering Corporation and whether the propotionality of the
H period of service from 1950 to July 31, 1972 and from August 1, 1972 till
                 U.0.1. v. D.R.R. SAS1RI [PATIANAIK, J.j                 155
 the retirement are separated to compute the pension and if so computed A
 whether the respondent would stand to gain any higher pension than is
being actually drawn. But unfortunately no further affidavit or material was
placed by the appellant. On the other hand the respondent has filed an
 affidavit stating therein that he has not received any pension on his retire-
ment from the Heavy Engineering Corporation as the Corporation itself B
had no pensionable scheme. In the aforesaid premises and in the absence
of any explanation from the appellant to indicate any special feature for
granting similar relief as late as in the year 1994 to Shri K.V. Kasthuri, we
see no justification for our interference with the impugned direction of the
Tribunal. The respondent had served for about 22 years and he should not
be deprived of the pensionary benefit when the Government itself had C
come forward with the liberalised Pension Scheme and gave option to the
persons already retired to come over to the pension scheme. But his
pension it to be calculated as on July 31, 1972 in accordance with the
Railway Board's letter dated 23rd of July, 1974 and on compliance with all
the necessary formalities by the respondent in accordance with the said D
circular. Subject to the aforesaid observations this appeal is dismissed but
in the circumstance there will be no order as to costs.

S.V.K.I.                                                   Appeal dismissed.