UNION OF INDIA AND ORS. versus A.J. FABIAN

Citation: [1996] SUPP. 9 S.C.R. 690 · Decided: 09-12-1996 · Supreme Court of India · Bench: K. RAMASWAMY, G.T. NANAVATI · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
B 
UNION OF INDIA AND ORS. 
v. 
A.J. FABIAN 
DECEMBER 9, 1996 
[K. RAMASWAMY AND G.T. NANA VAT!, JJ.] 
Se1Vice Law-Pension-Railway employe~Superannuation-Switch
ing over from provident fund scheme to pension scheme-Option given to 
employee six times not availed by him--After a very long time request made 
C by employee to pemiit him to opt pension scheme-Rejection of request-Peti-
tion filed by employee allowed by Tribunal-Appeal preferred by Union of 
India-Held employee was not entitled to benefit of pension scheme-Order 
of Tribunal set aside. 
Krishena Kumar & Ors. Etc. v. Union of India & Ors., [1990) 3 SCR 
D 352, relied on. 
D.S. Nakara & Ors. v. Union of India, [19831 1 SCC 305 and V:K 
Ramamurthy v. Union of India & Anr., [1996] Suppl. 4 SCR 583, referred 
to. 
E 
P. Lakshmana Rao v. Union of India, SLP (C) No. 17730/95 decided 
by Supreme Court on 2.4.1996, distinguished. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 16861 of 
1996. 
F 
From the Judgment and Order dated 29.9.95 of the Central Ad-
ministrative Tribunal, Ernakulam in Kerala in OA. No. 686 of 1995. 
N.N. Goswami, A.D.N. Rao and Arvind Kr. Sharma for the Appel-
lants. 
G 
Mrs. K. Sarada Devi for the Respondent. 
The following Order of the Court was delivered : 
Delay condoned. Leave granted. 
H 
This appeal by special leave arises from the order of Central Ad-
690 
U.O.l. v. AJ. FABIAN 
691 
ministrative Tribunal, Ernakulam Bench passed in O.A. No. 686/95 on A 
September 29, 1995. 
The respondent was a railway employee. He retired from service, on 
attaining superannuation, on April, 21, 1972 as Chief Inspector of Com-
munications. 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 
B 
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 0 .A. in the Tribunal which, in the C 
impugned order has allowed the petition relying upon the judgment of the 
CAT, Bombay Bench in 0.A. against which SLP 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 
& Ors. Etc. v. Union of India & Ors., (1990] 3 SCR 352 had held that since D 
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 & Ors. v. Union of India, (1983] 1 SCC 305 and accordingly 
allowed the appeal and held that they are not entitled to those benefits. 
E 
The same question was again considered by this Court in V.K Ramamurthy F 
v. Union of India & Anr., (1996) Suppl. 4 SCR 583. Therein this Court 
surveyed the entire case law and held thus : 
"In view of the aforesaid series of decisions of this Court explaining 
and distinguishing Nakara's case the conclusion is irresistible that 
the petitioner who retired in the year 1972 and did not exercise G 
his option to come over to the Pension Scheme even though he 
was granted six opportunities is not entitled to opt for Pension 
Scheme at this length of time. The decision of Ghansham Das case · 
on which the learned counsel for the petitioner placed reliance, 
the Tribunal relied upon Nakara's case and granted the relief H 
A 
B 
c 
692 
SUPREME COURT REPORTS (1996) SUPP. 9 S.C.R. 
without considering that Nakara's decision has been distinguished 
in that Constitution Bench case of Krishena Kumar and other cases 
referred to supra. Therefore, dismissal of the Special Leave Peti-
tion against the said judgment of the Tribunal cannot be held to 
be law laid down by this Court, in view of what has been stated in 
Krishena Kumar's case. The other decision of this Court, in the 
case of R. Snbramanian (Writ Petition (Civil) No. 881of199
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