The
State of Punjab Vs. Justice S. Dewan & Ors
[1997] INSC 460 (25 April 1997)
K.
RAMASWAMY, G.T. NANAVATI, K.VENKATASWAMI
ACT:
HEADNOTE:
JU D G
ME N T NANAVATI, J.
The
respondent who retired as thechief justice of the High Court of Punjab and Haryana
on 31.12.89 was enrolled as an advocate on27.1.59, appointed as Districtand
Sessions Judge on 20.11.68 and then as a judge and the Chief Justice of Punjab
and HaryanaHigh Court on 14.12.77 and 4.10.89 respectively. On his retirement
he elected for computation of hispensionunder Part III of the 1st Schedule to
the High Court Judges (Conditions of Service) Act, 1954.
According
to the provisions containedin partIII, pension of thejudge has to be determined
in accordance with the rules of his service. The ruleswhich applied to him are
the punjab Superior Judicial Service Rules, 1963. His pension was, therefore,
fixed in accordance with the said rules. On 20.2.90, Rule 16 of the saidRules
was amended by the Government of Punjab and it was provided thatin caseof a direct
recruitto thePunjab SuperiorJudicial Service the actual period of practice at
the bar not exceeding 10 years shall be addedto his service qualifying for
superannuation pensionand other retirement benefits. In view ofthis amendment
the respondent claimed that being a direct recruit to thePunjab Superior
Judicial Service he was entitled to addition of actual period of practice at
the bar not exceeding 10 years to his qualifying service and, therefore, his
pension and other retirement benefitshave to be refixed. TheHigh Court, in its turn, wrote to the
Accountant General on 5.6.90 for refixation of his pension and other retirement
benefitsafter giving him benefit of the amendment . The AccountantGeneral, it
appears, was not inclined to agree with this claim and, therefore, referred the
matter to the State Government for correct interpretation of the rule.
On25.2.91the State Government decided thatthe notification dated 22.2.90 hasonly
prospective effect and, therefore, benefit of the amended Rule 16 cannotbe
given to the respondent. He, therefore, filed a writ petitionin the High Court interalia
praying that the Union of Indiaand theState Government be directed to givebenefitof
the amended Rule 16 to him and to compute his pension afresh inaccordance with
the said provision.
The
stand taken by the Unionof India was that it was not really concerned with the
subject-matter of thepetition and that it pertained to the State of Punjab. The State contended thatthe
amended rule applies to those only who retiredafter 22.2.90.
The
learned singleJudge followingthe judgment ofthis SCC 305 held that allretired judgesirrespective
of the date of retirement constituteone class and the benefits available under
the amended rule cannot be confined to the judges who retired after the amendment.He,
therefore, found the action of the state of Punjab asillegal, allowed the
petition and directed the State of Punjab to refix pension of therespondent in
accordance with the amended rulewith effect from 22.2.90 and to paythe arrears
with interest at the rate of 18 per centper annum. The State ofPunjab filed a
letters patent appeal. The Division Bench of theHigh Court dismissed it with a
clarification that the prayer being restricted only to pension and not to other
retirement benefits, the order passed by the learned Single Judge should be readas
confined to grant of pension only. The State has, therefore, filed this appeal.
The
only controversy in this appeal is whether theHigh Court was right in directing
refixation of pension of the respondent in accordance with amended Rule 16. The
respondent, having retired asa judge of a High Court and having electedto
receive pension payable under part III of the First Schedule to the Act his
below:- "16. Death-cum-retirement benefits:-In respect of death-cum- retirementbenefits
the members of the service shallbe governed by the punjab CivilServices Rules,
Volume IIas amended from time to time.
Provided
thatin the case of a direct recruit to this service, the actual period of
practice at Bar not exceeding tenyears,shall be added to his service qualifying
for superannuation Pension and other retirementbenefits." The change
brought aboutby the amendment isthat whereasin respect of death-cum-retirement
benefits members of the Punjab Superior Judicil Service were earlier governed
by theAll India Service (death-cum-retirement benefits) Rules, now they are
governed by the Punjab Civil Service Rules, Moreover, now in the case of a
direct recruit to the added to hes service for thepurposeof determining the qualifying
service. Formerly, that is, prior to 22.2.1990, qualifying service ofa member
of the Punjab Superior judicial Service and also as a judge of the High Court,
if he waselevated to that position before retirement. Even in case ofa direct
recruit to that Service his standing at the Bar was irrelvant butnow that
period has tobe added for determining the qualifyingservice. Obviously,this
enlargement ofthe Period of qualifying service wouldlead to an Increasein thequantum
of pension. This hasbeen regarded by the High Court and as contended by the
respondent, liberalisation of the pension scheme. Forthat reason,it further
held that benefit of a ruleliberalising pension cannot berestricted to persons
retiring subsequently that is after the date of such liberalisation otherwise itwould
amountto vicious discrimination violative of Article 14 of theconstitution. The
High Court has also held that there is nothing in the language of the Rule tosuggestthat
the benefit conferred by it is confined to the persons retiringafter February 22,1990.
Therefore,what
we have to consider is: What is the nature of the change made by the amendment?
Isit by way of upwardrevision of the existing pension scheme?Then obviously the
ratio of the decision in D.S. Nakara'scase would apply. If it is held to be a newretiralbenefitor
a new scheme then the benefit of it cannot beextended to those who retired
earlier.
Conceptually,
pension is a rewardfor past service. It is determined on the basis of length ofserviceand
last pay drawn. Length of service is determinative of eligibility and the
quantum ofpension. The formula adopted for determining last average emoluments drawnhas
an impact on the quantum of Pension. InD.S. Nakara's case (supra) the change in
the formulaof determiningaverage emoluments byreducing 36 months'serviceto 10
months' service as measure of pension, made with a view to giving a higher
average, was regarded as liberalisation or upward revision of the existing
pension scheme,On thebasis of the same reasoning it may besaid that any
modification with respect to the other determinative factor, namely, qualifying
service made with a view to make it more beneficial in terms of quantum of pensioncan
also be regarded as liberalisation or upward revision of the existing pension
scheme. If,however, the change is not confinedto the period of service but
extends or relates to a period anterior to the joining of service then it would
assume adifferent character. Then it is not liberalisation of the existing
scheme but introductionof a new retiral benefit. What has been done by amending
Rule 16 is to make the periodof practice at the Bar, which was otherwise
irrelevant for determining the qualifying service, also relevant for that
purpose. It is a new concept and a new retiral benefit. The object of the
amendment does not appear to be togo
for liberalisation. The purpose for which it appears to have been made is to
make it more attractive for those who are already inserviceso thatthey may not
leave it and for new entrants so that they may be tempted to join it. ThoughRule
16does not specifically state that the amendedrule will apply only to those who
retired after 22.2.90, the intentionbehindit clearly appears to be to extend
the newbenefitto those only who retired afterthat date. For these reasons the
principle laid down in D.S. Nakara's case (supra)that if pensioners form a
class computation oftheir pension cannot beby different formula affording
unequal treatment merely onthe ground thatsome retired earlier and some retired
later, will have no application toa caseof thistype. Therefore, on both the groundsthe
High Court was in error in applyingthe ratio of the decision in D.S. Nakara's
case (supra) to this case. As rightlycontended on behalf of the State, benefit
of the amendment would be available to only those direct recruits who retired
after it has come into force.
The
following observations made by this court in Union supportthe view that we are
taking:
"Wheneverthe
Government or an authority,which can be held to be aStatewithinthe meaning of
Article 12 of the Constitution, frames a scheme for persons who have
superannuated fromservice, due to many constraints, it is not always possible
to extendthe same benefitsto one and all, irrespective ofthe dates of
superannuation. Assuch any revised scheme in respect of post- retirementbenefits,
if implemented with a cut-off date, which can be held to be reasonable andrational
inthe light of Article 14 of the Constitution, need not be held to beinvalid.
It shall not amount to "picking out a date from the hat", aswas said
by this Court in the case of D.R. Nim V. Unionof India in connection with
fixation of Seniority. Whenever arevision takes place, a cut-off date becomes imperativebecause
the benefit has tobe allowed within the financial resources available with the
Government." We, therefore, allow this appeal, set aside the judgment and
order passed by the High Court and dismiss the writ petition filed by the respondents.In
viewof the facts and circumstances of the case there shall be no order as to costs.
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