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PETITIONER:

SHRI V.K. RAMAMURTHY

Vs.

RESPONDENT:

U O I & ANR

DATE OF JUDGMENT: 13/08/1996

BENCH:

G.B. PATTANAIK (J)

BENCH:

G.B. PATTANAIK (J)

RAMASWAMY, K.

CITATION:

JT 1996 (7) 296 1996 SCALE (5)829

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

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.

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 Railways 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 option from the petitioner

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 accordingly on his superannuation

the entire dues which he was entitled to from the Provident

Fund Scheme was paid to him. The further 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

with any reply the petitioner filed a representation an the

Hon'ble Minister for Railways. The petitioner also filed a

representation in August, 1986 to 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

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approached the Central Administrative Tribunal, Bombay Bench

and the Tribunal granted the benefit of coming to the

Pension Scheme to the said applicant - Ghansham Das. The

petitioner also came to know that this Court in R.

Subramanian vs. 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

respondents filed a counter affidavit taking the stand that

in view of Constitution Bench decision in Krishena Kumar vs.

Union of India a d Others, (1990) 4 SCC 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 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 Fund Scheme and received

all his dues from the said Scheme and, therefore, he cannot

be allowed now to switch over to the Pension Scheme after

this length of time. The short question that arises for

consideration, therefore, is whether the Pension Scheme

though was in operation while the petitioner was in service

and option was sought for but the petitioner never 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 Ghansham 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 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 vs. Union of India,

(1983) 1 SCC 305, which decision has been noticed and

explained away and not followed in the Constitution Bench

decision in Krishena Kumar's case and, therefore, dismissal

of Special Leave Petition against the judgment of the

Central-Administrative Tribunal, Bombay Bench, cannot have a

binding precedent. After considering 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.

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 superannuation

of the petitioner on 14th July, 1972 as many as six options

had 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

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whether still the petitioner car be allowed an option to go

back to the Pension Scheme? In the Constitution Bench

decision in Krishna 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 Scheme are structurally

different and they do not belong to one class. It was also

observed that in the matter of expenditure includible in the

Annual Financial 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 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 form a

homogeneous class and further in Nakara it was never

required to be decided that all that while deciding the case

of pension retirees in Nakara's case the provident fund

retirees were not in mind. This Court also further held in

Krishena Kumar's case.

"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 qua the government in

respect of the Provident Fund is

finally crystalized 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. Thus, on the

retirement of an employee

government's legal obligation 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 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

thereafter no continuing obligation

remained while, on the other hand,

as regard Pension retirees, the

obligation Continued till their

death. The continuing obligation of

pension retirees is adversely

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affected by fall in rupee value and

rising price which, considering the

corpus already received by the PF

retirees they would not be so

adversely affected ipso fact. It

cannot, therefore, be said that it

was ratio decidendi in Nakara that

the State's obligation towards its

PF reitees mus be the same as that

towards the pention retirees."

In State of Rajasthan vs. 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 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 vs. Union of India and Another, 1992

Supp (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 relations with the

employer come to an end on his retirement and receipt of the

contributory provident fund amount but its the case of an

employee governed under the Pension Scheme his relations

with the employer merely undergo a change but do not snap

altogether. It is for his 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 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 Contributory. Provident

Fund Scheme has been rightly emphasised by this Court in

Krishena Kumar's case.

In view of the aforesaid series ns 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

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 without considering that Nakara's decision has

been distinguished in the Constitution Bench case of

Krishena Kumar and other 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 Subramanian (Writ Petition (Civil) No. 881 of 1993) 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.

In the aforesaid premises and in view of the legal position

as discussed above the writ petition is dismissed but in the

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circumstances without any order as to costs.