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 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 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 Railways1 (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.2 [(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 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.3 [(1996) 10 SCC 73] and Union of India & Ors. v. Kailash4 [(1998) 9 SCC 721] a