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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.