Union of India
through the Secretary, National Council of Educational Research & Training Vs.
Shyam Babu Maheshwari
JUDGMENT
A. K. PATNAIK, J.
1.
Leave
granted.
2.
This
is an appeal against the order dated 23.05.2006 of the Division Bench of the Rajasthan
High Court, Jaipur Bench, dismissing Civil Special Appeal (Writ) No.898 of 2005
of the appellant.
3.
The
facts of this case are that the respondent was in the service of the National Council
of Educational Research and Training (for short `the NCERT'). The employees of the
NCERT were given an option to choose either the Central Provident Fund Scheme
(for short `the CPF Scheme') or the General Provident Fund-cum-Pension Scheme (for
short `the Pension Scheme'). In 1977, the respondent opted for the CPF Scheme. On
31.07.1984, the respondent retired from service and withdrew his benefits under
the CPF Scheme.
On 06.06.1985, the Ministry
of Personnel and Training Administrative Reforms & Public Grievances and
Pension (Department of Personnel and Training) issued O.M. No.F.3(1)-Pension Unit/85
(for short `the O.M. dated 06.06.1985') intimating the decision of the Government
that Central Government employees who had retained the Contributory Provident Fund
benefits in terms of Rule 38 of the Contributory Provident Fund Rules, 1962 or in
terms of any other orders issued in that behalf, may be allowed another opportunity
to opt for the Pension Scheme as laid down in the Central Civil Services (Pension)
Rules, 1972. In the O.M. dated 06.06.1985, it was made clear that the option was
open to those employees who were in service on 31.03.1985 and were retiring
from service on or after that date. NCERT issued a circular dated 18.07.1985 intimating
all concerned that employees of NCERT, who had earlier opted for the CPF Scheme,
may exercise their option before 06.12.1985 to switch over to the Pension Scheme
and such option once exercised will be treated as final.
4.
Before
his retirement, the Respondent claims to have applied on 27.02.1984 to change over
from the CPF Scheme to the Pension Scheme. The said request for change over from
the CPF Scheme to the Pension Scheme was rejected on 23/26.06.1989. The respondent
filed an application before the Rajasthan Non-Government Education Tribunal,
Jaipur (for short `the Tribunal') in the year 1995, seeking permission to opt for
the Pension Scheme. By order dated 02.11.1995, the Tribunal relying on the
decision of this Court in Subramaniam v. Chief Personnel Officer, Central Railways,
Ministry of Railways (AIR 1995 SC 983) directed the appellant to declare the respondent
as entitled to the benefits of the Pension Scheme with effect from the date of his
retirement and fix his pension accordingly. The appellant challenged the order of
the Tribunal before the High Court in Civil Writ Petition No.1447 of 1997 which
was dismissed by the learned Single Judge of the High Court by order dated 02.08.2005.
The appellant then filed Civil Special Appeal (Writ) No.898 of 2005 which was also
dismissed by the Division Bench of the High Court by the impugned order.
5.
Learned
counsel for the appellant submitted that the Tribunal, the learned Single Judge
of the High Court and the Division Bench of the High Court have all relied on
the decision of this Court in R. Subramaniam v. Chief Personnel Officer, Central
Railways, Ministry of Railways (AIR 1995 SC 983 = (1996) 10 SCC 72) which was rendered
on the peculiar facts of that case. He submitted that a Constitution Bench of this
Court in Krishena Kumar, etc. v. Union of India & Ors. [(1990) 4 SCC 207]
has clearly held that employees who opt for the CPF Scheme and employees who opt
for the Pension Scheme fall into two distinct classes and once an employee opts
within the cut-off date to be under the CPF Scheme, he cannot later on make a
request to switch over to the Pension Scheme.
He submitted that the
decision of the Constitution Bench of this Court in Krishena Kumar (supra) has subsequently
been followed in V.K. Ramamurthy v. Union of India & Anr. [(1996) 10 SCC 73]
and Union of India & Ors. v. Kailash [(1998) 9 SCC 721] and in these subsequent
decisions this Court has explained that the decision of this Court in R.
Subramaniam (supra) was rendered on the particular facts of that case. He
further submitted that in any case it will be clear from the language of the
O.M. dated 06.06.1985 which was adopted by the NCERT that the option to switch over
from the CPF Scheme to the Pension Scheme was available to only those employees
who were in service on 31.03.1985 and were to retire from service on or after
31.03.1985 and not to the appellant who was not in service on 31.03.1985 having
retired on 31.07.1984.
6.
Learned
counsel for the respondent, on the other hand, supported the orders of the Tribunal,
the learned Single Judge of the High Court and the Division Bench of the High Court
and relied on the decision of this Court in R. Subramaniam (supra).
7.
We
have carefully perused the decision of this Court in R. Subramaniam (supra) on which
reliance has been placed by the Tribunal, the learned Single Judge and the Division
Bench of the High Court as well as learned counsel for the respondent and we
find that in that case the Central Administrative Tribunal, Bombay, by its order
dated 11.11.1987 had directed that Railway employees who had indicated their
option in favour of Pension Scheme either at any time while in service or after
their retirement and who then desired to opt for the Pension Scheme should be given
the benefit of the Pension Scheme.
This order dated 11.11.1987
of the Central Administrative Tribunal was challenged by the Union of India in a
Special Leave Petition, but the Special Leave Petition was dismissed and a Review
Petition was also dismissed by this Court. When the matter came before this
Court for the second time in R. Subramaniam (supra) this Court held that the Union
of India cannot resist the claim of R. Subramaniam. It is thus clear that in R.
Subramaniam (supra) the claim of the employee had to be allowed by this Court because
in an earlier order, the Central Administrative Tribunal had allowed the claim of
the railway employees to switch over to the Pension Scheme and the order of the
Central Administrative Tribunal had become final on the dismissal of the
Special Leave Petition and the Review Petition by this Court.
The facts of this case
are entirely different. There is no such earlier order of the Tribunal or a Court
allowing the claim of the respondent to switch over from the CPF Scheme to the Pension
Scheme, which had become final. The Tribunal, the learned Single Judge and the Division
Bench of the High Court were thus not right in relying on the decision of this Court
in R. Subramaniam (supra) in allowing the claim of the respondent to switch over
from the CPF Scheme to the Pension Scheme.
8.
We
may now consider whether dehors the decision of this Court in R. Subramaniam (supra)
the respondent could be allowed to opt for the Pension Scheme having earlier opted
for the CPF Scheme while in service. Admittedly, the respondent while he was in
service of NCERT had opted for the CPF Scheme way back in 1977 and on his retirement,
he had availed the benefits of the CPF Scheme. This Court has held in Krishena Kumar,
etc. v. Union of India & Ors., V.K. Ramamurthy v. Union of India & Anr.
and Union of India & Ors. v. Kailash (supra) that once an employee has opted
for the CPF Scheme, his exercise of option was final and he is not entitled to change
over to the Pension Scheme because the two schemes are entirely different. It,
however, appears that the Government in the Ministry of Personal and Training by
the O.M. dated 06.06.1985 gave an opportunity to Central Government employees who
had earlier opted for the CPF Scheme to opt for the Pension Scheme. The relevant
portion of the O.M. dated 06.06.1985 is extracted herein below:-
"... In the light
of these changes, the President is now pleased to decide that Central Government
employees who have retained the Contributory Provident Fund benefits in terms
of rule 38 of the Contributory Provident Fund Rules (India), 1962 or in terms
of any other orders issued in this behalf, may be allowed another opportunity
to opt for the Pension Scheme as laid down in the Central Civil Services
(Pension) Rules, 1972. The option is open to those Government employees who were
in service on the 31st March, 1985 and retiring from service on or after that
date. The option should be exercised within a period of six months from the date
of issue of this O.M. Option once exercised shall be final." The O.M.
dated 06.06.1985 has been adopted by the NCERT in its Circular dated 18.07.1985.
It will be clear from the language of the O.M. dated 06.06.1985 that the option
to an employee to switch over from the CPF Scheme to the Pension Scheme was open
to only those employees who were in service on 31.03.1985 and who were retiring
on or after 31.03.1985. By 31.03.1985, admittedly, the respondent had retired, his
date of retirement being 31.07.1984. He is, therefore, not entitled to fresh
option to switch over from the CPF Scheme to the Pension Scheme.
9.
For
these reasons, we set aside the orders of the Tribunal, the learned Single Judge
of the High Court and the Division Bench of the High Court and allow this
appeal. There shall be no order as to costs.
..........................J.
(R.V. Raveendran)
..........................J.
(A. K. Patnaik)
New
Delhi,
May
09, 2011.
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