Secretary (Estt) Railway Board & Anr Vs. Shri D. Francis Paul  INSC
805 (15 July 1996)
K. Ramaswamy, K.G.B. Pattanaik (J)
JT 1996 (7) 706
LEAVE PETITION (CIVIL) NO.14887 OF 1996 (CC-3212/96)
O R D
two petitioners in these cases were recruited as legal assistants after having
put in more than 8 years practice at the Bar. One was recruited on April 24, 1963 and the other on July 3, 1964. After putting in qualifying service
of 25 years, they retired from service on June 13, 1989 and March 31, 1992 respectively. They relied upon Rule 2423-A of the Railway
Establishment Mannual II claiming addition of 5 years qualifying service for
computation of their pension. The Tribunal in the impugned orders dated
6.12.1995 allowed the applications and computation thereof.
same are assailed in their applications.
2423-A reads thus:
(C..S.R.404-B):- An Officer appointed to a service or post on or after Ist
April, 1968 may add to his service qualifying for superannuation pension (but
not for any other class of pension) the actual period not exceeding one- fourth
the length of his service or the actual period by which his age at the time of
recruitment exceeds twentyfive years or a period of five years, whichever is
the least, if the service or post is one:- (a) for which post-graduate research
or specialist qualification, or experience in scientific technological or
professional fields, is essential and (b) to which candidates of more than
twenty five years of age are normally recruited.
that this concession shall not be admissible to any such officer unless his
actual qualifying service at the time he quits Government Service is not less
than ten years.
further that any such officer who is recruited at the age of thirtyfive years
or more may, within a period of three months from the date of his appointment,
elect to forego his rights to pension where under he shall be eligible to
subscribe to the State Railway Provident Fund as a nonpensionable
employee." The amended rule reads thus:
above Rule was amended as can be seen from the Railway Ministry's letter No.F(E)III/76
PNI 12 dated 15-11-76, whereby an additional proviso was added to the rule as
Under:- Provided further that this concession shall be admissible only if the
recruitment rules in respect of the said service/post contain a specific
provision that the service or post is one which carries the benefit of this
railway servant who is recruited at the age of thirty-five years or more, may
within a period of three months from the date of his appointment, elect to
forgo his right to pension, whereupon he shall be eligible to subscribe to the
State Railway Provident Fund as a nonpensionable employee.
The option referred to in sub- rule (2) once exercised, shall be final."
Relying upon this proviso by later amendment, it is contended that since no
specific provision was made in the conditions of service at the time of
appointment. the respondents are not entitled to the benefit of the rule, It is
not in dispute that the rule came to be amended in November 15, 1976 long after their appointment, Under these circumstances,
the amendment would be prospective. It is not in dispute that this amendment
came to be made pursuant to recommendation made by the III Pay Commission and
on acceptance thereof the rule came to be amended. Under these circumstances,
the amendment cannot have retrospective effect in respect of the persons
already in service would be prospective; it would be applicable only to those
candidates appointed after the date of the amendment introducing the proviso.
special leave petitions are accordingly dismissed.