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

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  

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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  

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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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