UNION OF INDIA Vs. A J FABIAN

JUDGEMENT

(1.) Delay condoned. Leave granted.

(2.) 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.

(3.) 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 S. L. P. 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 v. Union of India, (1990) 3 SCR 352 : (AIR 1990 SC 1782), 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 v. Union of India, (1983) 1 SCC 305 : (AIR 1983 SC 130), 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. 174/94 titled V. K. Ramamurthy v. Union of India, by judgment dated August 13, 1996, (reported in 1997 AIR SCW 3315). Therein this Court surveyed the entire case law and held thus (at Pp. 3316 and 3317 of AIR SCW) :