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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: A. J. FABIAN

DATE OF JUDGMENT:       09/12/1996

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Delay condoned. Leave granted.      This appeal  by special  leave arises from the order of Central Administrative  Tribunal, Ernakulam  Bench passed in O.A. No. 686/95 on September 29, 1995.      The respondent  was a railway employee. He retired from service, on  attaining superannuation,  on April 21, 1972 as Chief  Inspector   of  Communications.   Consequent  on  the switching over from the Provident Fund 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 O.A. in the Tribunal which, in the impugned order, has allowed the petition relying upon the judgment of the CAT,  Bombay Bench in O.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 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. 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 W.P.  174/96 titled V.K. Ramamurthy  v. Union  of India & Anr. by judgment dated August 13, 1996. Therein this Court surveyed the entire case law and held thus:      "In view of the aforesaid series of

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    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  that      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  Krishna  Kumar’s      case. The  other decision  of  this      Court,   in    the   case   of   R.      Subramanian (Writ  Petition (Civil)      No.881 of  1993) the  Court  merely      relief  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."      Accordingly the Petition was dismissed.      It is  contended by  Smt. Sarada  Devi, learned counsel for the respondent, that in Krishena Kumar’s case this Court had upheld  the decision  of  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 distinguished  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 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 would be entitled to  the   benefits,  it  would  not  be  a  case  warranting interference. In  support thereof,  she relies upon an order passed by this Court in C.A. @ 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 circumstances, we  do not  think that it is a case entitling the respondent to the same benefit.      The appeal  is accordingly  allowed. The  order of  the Tribunal stands set aside, but in the circumstances, without costs.