Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 4202 OF 2011
(Arising out of S.L.P. (C) No. 9803 of 2006)
Union of India through the Secretary, ...... Appellant
National Council of Educational
Research & Training
Versus
Shyam Babu Maheshwari ...... Respondent
JUDGMENT
A. K. PATNAIK, J.
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
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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
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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
4
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
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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
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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
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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.
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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 hereinbelow:-
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“… 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
1
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.