V K RAMAMURTHI Vs. UNION OF INDIA

JUDGEMENT

(1.) 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.

(2.) 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 Railway 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 were 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 to 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 representation to different authorities. Meanwhile, a retired employee had 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. Subramaniam v. CPO (supra), 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 v. Union of India, (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 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 (supra) has been noticed. On the other hand in Ghansham Das the Tribunal relied upon the decision of this Court in D.S. Nakara v. 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.

(3.) 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 whether still the petitioner can 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 waited 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 Schemes 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, (supra) 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 the retirees form a class. It was also observed 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 (supra)