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Judgment
F.M. Ibrahim Kalifulla, J.—The challenge in this Writ Petition is to the order of the Central Administrative Tribunal dated 3-8-1998 made in
O.A.No.387/96, in and by which, the Tribunal issued a direction to the petitioner to apply the liberalised pension scheme in the case of the
deceased applicant by following of the necessary formalities in accordance with the Circular dated 23-7-1974 subject to the condition that the
legal heirs of the deceased applicant, namely, the respondents 2 to 5 herein refund the amount received by the deceased applicant by way of
government contribution as well as special contribution to provident fund.
While granting the above said relief, the Tribunal mainly relied on a judgment of the Honourable Supreme Court reported in Union of India
(UOI) and Others Vs. D.R.R. Sastri, . In the above stated judgment of the Honourable Supreme Court, a direction came to be issued to the
Railways in respect of an employee who happened to be in the service of the Railways on 1-1-1973, to whom the circular dated 23-7-1994 was
applicable, who came forward to exercise the option only in the year 1993, which was turned down by the Railways and when the said rejection
was challenged by him before the Tribunal, the challenge was accepted, whereby, the Railways was directed to accept the option exercised by the
retiree, even though, the option was exercised nearly after 18 years. The direction of the Tribunal was upheld by the Honourable Supreme Court
on the ground that the Railways granted a similar benefit to another employee who also retired in the year 1973, but who was granted the relief in
the year 1994. In fact, a contention was raised before the Honourable Supreme Court that in view of the Constitutional Bench decision of the
Supreme Court Court reported in Krishena Kumar and Others Vs. Union of India and others, , the direction of the Tribunal cannot be sustained.
However, the Honourable Supreme Court, in view of the special facts involved in that case, declined to interfere with the order of the Tribunal.
Mr.V.Radhakrishnan, learned counsel appearing for the petitioner contended that the issue concerning the grant of relief was dealt with in
extenso in the Constitutional Bench judgment of the Honourable Supreme Court reported in Krishena Kumar and Others Vs. Union of India and
others, :wherein the Honourable Supreme Court, while considering the various orders of the Railways, right from the year 1957 till the year 1987,
in and by which, at different point of time, the Railways came forward to extend the benefit to its employees who opted to accept the provident
fund benefits as their service benefit, to switch over to the pensionary benefits for different reasons.
The Circular dated 23-7-1994 was one such order which was considered by the Honourable Supreme Court and while dealing with the said
Circular, the position relating to the same was noted as under :
(viii) Pension Option dated July 23, 1974.
This option was based on similar orders issued by Ministry of Finance. The rationale behind this option was that the recommendations of the 3rd
Pay Commission became effective from January 1, 1973 but pay structure of all employees who were in service on January 1, 1973 got altered
through orders issued piecemeal from time to time. There were liberalisations in the pension scheme also in the form of increase in the amount of
gratuity as also introduction of the concept of Dearness Relief made available to the pensioners. This option was made available to all employees
who were in service on January 1, 1973. Employees who had retired earlier did not get affected in any way by the recommendations of the 3rd
Pay Commission and were accordingly not given this option to come over to Pension Scheme. This option was available up to January 22, 1975, a
period of 6 months.
The option given vide letter of July 23, 1974 was extended from time to time till December 31, 1978. The reason why this extension had to be
allowed was that the revised pay scales recommended by the Pay Commission for many of the categories could not be finalised and notified. Till
such time, the revised pay scale admissible to each category was made known, it was impossible for the concerned staff to assess the benefit
admissible for opting for the revised scale as also for the pension option. The pension option had therefore to be extended from time to time in this
manner.
The letters authorising extension of the date of option were not very clearly worded with the result that the pension option during the periods of
extension was granted even to those who had retired before such extension became admissible but who were in service on January 1, 1973. The
clarification was accordingly issued to all the Railways stating that the subsequent orders extending the date of option were applicable to serving
employees only, but the cases already decided otherwise may be treated as closed and need not be opened again.
It was subsequently represented by the organised labour that the options actually exercised up to December 31, 1978 should be treated valid even
though such cases may not have been decided by that date. This was agreed to and orders issued accordingly.
and in para 14 of the said order, the Honourable Supreme Court was pleased to observe as under:
The learned Additional Solicitor General states that each option was given for stated reasons related to the options. On each occasion, time
was given not only to the persons in service on the the date of Railway Board''s letter but also to persons who were in service till the stated anterior
date but had retired in the meantime. The period of validity of option was extended in all the options except Nos.3rd, 4th, 5th and 7th. We find the
statements to have been substantiated by facts. The cut-off dates were not arbitrarily chosen but had nexus with the purpose for which the option
was given.
The learned counsel also brought to our notice the subsequent Judgment of the Honourable Supreme Court reported in Union of India (UOI)
and Others Vs. Kailash, , where again, when a similar belated claim was countenanced by the Central Administrative Tribunal of Calcutta Bench,
and when the same was challenged by the Union of India before the Honourable Supreme Court, the respondents in that case sought reliance upon
the judgment of the Honourable Supreme Court reported in Union of India (UOI) and Others Vs. D.R.R. Sastri, , to sustain the order of the
Tribunal. However, the Honourable Supreme Court was pleased to hold that when the issue was clearly covered by the Constitutional Bench
decision of the Honourable Supreme Court reported in Krishena Kumar and Others Vs. Union of India and others, , the Tribunal was wrong in
taking a contrary view by relying upon some other decision which was decided on its own facts.
The learned counsel therefore contended that the order of the Tribunal in the case on hand is also therefore liable to be set aside in the light of
the decision of the Constitutional Bench of the Honourable Supreme Court reported in Krishena Kumar and Others Vs. Union of India and others,
. We are in full agreement with the said submission of the learned counsel for the petitioner. The subsequent judgment of the Honourable Supreme
Court reported in Union of India (UOI) and Others Vs. Kailash, , is also very relevant for the disposal of this Writ Petition. The said judgment is
extracted in full which reads as under:
1.Leave granted. Heard learned counsel for the parties. Learned counsel for the appellants submitted that the point raised in this appeal is clearly
covered by the decision of this Court in Krishena Kumar and Others Vs. Union of India and others, and the Tribunal was wrong in taking a
contrary view relying upon the decision of this Court in R. Subramaniam Vs. Chief Personnel Officer, Central Railway, Ministry of Railways, . In
R.Subramaniam what had happened was that benefit of the order passed in his favour was not given to him even though SLP filed by the Union of
India against it was dismissed and the review application filed by it thereafter was also dismissed. R.Subramaniam therefore filed a writ petition
which came to be allowed. That case was thus decided on its own facts. The Tribunal was therefore not right in deciding the respondent''s
application in his favour by following that decision. Releasing this difficulty in this way, learned counsel for the respondent tried to support the order
of the Tribunal with the decision of this Court in Union of India (UOI) and Others Vs. D.R.R. Sastri, :. That case also was decided on facts special
to it. This Court refused to interfere with the order of the Tribunal because the Union of India had failed to explain why the benefit, which was
given to K.R.Kasturi was not given to D.R.R.Sastri even though his case was similar. Obviously the two-Judge Bench would not have intended to
take a view contrary to what was held by the Constitution Bench of five Judges in Krishena Kumar and Others Vs. Union of India and others, .
Nor would it have intended to lay down that because a wrong benefit is given to one, similar benefit is required to be given to others similarly
situated as denial of the same would amount to discrimination violative of Article 14 of the Constitution. Therefore, D.R.R.Sastri case has to be
regarded as a case decided on its special facts.
Following the decision in Krishena Kumar case, we allow this appeal and set aside the order passed by the Central Administrative Tribunal,
Calcutta Bench with the result that the application filed by the respondent before the Tribunal stands dismissed.
On a reading of the Constitutional Bench decision of the Honourable Supreme Court, it is clear that the date fixed in each of the Notification for
exercise of the option for the employees to switch over to pension scheme was to be adhered to and that the cut-off dates were not arbitrarily
chosen but had nexus with the purpose for which the option was given. It was also made clear that the period of validity of the option was
extended on certain circumstances for stated reasons. When the position was stated in such categoric terms by the Hon''ble Supreme Court with
reference to the various circulars which inter alia included the circular dated 23-7-1974 there is no gain saying that merely because in a different
case, namely, in the one reported in Union of India (UOI) and Others Vs. D.R.R. Sastri, in view of the special facts involved in that case, the
Honourable Supreme Court was pleased to confirm the order of the Tribunal which chose to grant the relief, on the basis of the said decision, the
employees who failed to exercise their option within the stipulated time and who came forward to exercise their option at a highly belated point of
time, such option should also be accepted irrespective of the belated nature of exercise of such option and grant the relief in their favour. As
interpreted by the Honourable Supreme Court in the subsequent decision reported in Union of India (UOI) and Others Vs. Kailash, in the light of
the decision of the Constitutional Bench of the Honourable Supreme Court reported in Krishena Kumar and Others Vs. Union of India and others,
:there is no scope for entertaining the claim of the deceased applicant in the case on hand as well who came forward to exercise the option after a
delay of nearly 18 years. We are therefore unable to sustain the order of the Tribunal impugned in this Writ Petition.
In the result, the Writ Petition is, therefore, allowed. The order impugned in this Writ Petition is hereby set aside. No costs. Consequently, W.M.P.
is closed.