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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: D.R.R. SASTRI

DATE OF JUDGMENT:       22/11/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      PATTANAIK. J.      Leave granted.      This appeal  by special  leave is  directed against the order of  the Central  Administrative Tribunal, Madras dated 23rd September, 1994 in OA No. 1711 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  recieved  on  his retirement.      The admitted  facts are  that the respondent joined the Indian Railways  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 railway he had opted for   Contributory  Provident Fund  Scheme.  The  said respondent exercised  his option for permanent absorption in Heavy Engineering  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 1974 on  the basis  of  recommendations  of  the  Third  Pay Commission, liberalised  Pension Scheme  was introduced  and the Railway  Board in  its  letter  dated  22nd  July,  1974 decided to  give an  opportunity to all the persons governed by the  Provident 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  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  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 pension

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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 allowed  to exercise  the option  long after the  date of  exercising of  option has  expirted 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.      Mr. Mahajan  appearing for the appellant contended that the respondent  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 had been given to another railway employee  which has  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   or 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 the Court that the Government  itself has  granted a similar benefit to one K.V. Kasthuri  by an  order dated  September 19,  1994, even though  he   had  retired  in  the  year  1973.  The  Court, therefore, called  upon the  Union Government  to place  the necessary material which enabled the Government to grant the relief to  Shri Kasthuri  and  how  his  case  stands  on  a different footing  than the  case of  the respondent. But no further affidavit  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 been absorbed by the Heavy X 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 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 period  of service  from 1950  to July 31, 1972 and from August 1,  1972 till the retirement are separated to compute the pension  and if so computed whether the respondent would stand to  gain any  higher pension  than is  being  acutally 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 retirement  from  the Heavy Engineering  Corporation as the Corporation itself 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

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in  the   sear  1994  to  Snri  K.V.  Wasthuri,  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  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  is 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 circular. Subject  the circumstance  there  will be no order as to costs.