JUDGMENT

Pattanaik, J.-Leave granted.

2. This appeal by special leave is directed against the order of the Central Administrative Tribunal, Madras dated 23rd September, 1994 in OA No. 1711 of 1993. By the impugned order the Tribunal has directed the appellant to allow the respondent the benefit of option for the pension scheme, on respondent refunding the amount he has received on his retirement.

3. The admitted facts are that the respondent joined the Indian Railways in the year 1950 and while continuing there went on deputation to the Heavy Engineering Corporation during the year 1972. While he was in the railway he had opted for Contributory Provident Fund Scheme. The said respondent exercised his option for permanent absorption in Heavy Engineering Corporation and submitted his resignation from the railways which was accepted by Railway Board and communicated by letter dated 26th June, 1973. In the year 1974 on the basis of recommendations of the Third Pay Commission, liberalised Pension Scheme was introduced and the Railway Board in its letter dated 22nd July, 1974 decided to give an opportunity to all the persons governed by the Provident Fund Scheme to opt for the liberalised Pension Scheme. The Railway Board s letter was communicated to all the General Managers with the direction that it shall be brought to the notice of all retired railway servants. The case of the respondent is that the liberalised Pension Scheme having been introduced at a point of time when he was an employee under the railways, he was entitled to opt for the said scheme. But the aforesaid letter of the Railway Board was not brought to his notice. It is only on 12th June, 1993 the said respondent made a representation requesting the Railway Board that he may be allowed to exercise the option and the Railway Board having rejected the same by its communication dated 13th July, 1993, respondent approached the Tribunal. The Tribunal by the impugned order came to the conclusion that the respondent being in service of the railways on 1st January, 1973 was entitled to exercise option for coming over to the pension scheme in terms of Railway Board s letter 23rd July, 1974. The Tribunal further came to the conclusion that notwithstanding the clear statement in the Board s letter that it should be brought to the notice of all the retirees, it had not been brought to the notice of the respondent no account of which he was prevented from exercising his option. The Tribunal also took note of the fact that another railway employee was allowed to exercise the option long after the date of exercising of option has expirted and, therefore, there should be no ground to discriminate the respondent. Challenging the aforesaid direction of the Tribunal the Union of India has come in appeal.

4. Mr. Mahajan appearing for the appellant contended that the respondent having not exercised his option to opt for the pension scheme within the time specified in the Board s letter dated 23rd July, 1974 the Tribunal erred in law granting him the relief in question. The learned counsel, however, was not in a position to indicate any special reason why the similar opportunity had been given to another railway employee which has been noticed by the Tribunal while granting the relief to the respondent. Mr. Mahajan, however, contended that in view of the Constitution Bench s decision of the Court in Krishan Kumar s case (1990(4) SCC 207) the impugned direction of the Tribunal cannot be sustained. When this case listed before this Court on 6th May, 1995, it was brought to the notice of the Court that the Government itself has granted a similar benefit to one K.V. Kasthuri by an order dated September 19, 1994 even though he had retired in the year 1973. The Court, therefore, called upon the Union Government to place the necessary material which enabled the Government to grant the relief to Shri Kasthuri and how his case stands on a different footing than the case of the respondent. But no