K. L. Rathee
Vs. Union of India & Ors [1997] INSC 559 (7 July 1997)
S.C.
AGRAWAL, SUHAS C. SEN.
ACT:
HEADNOTE:
SEN.
J.
On
1.5.1968 the petitioner retired from Government service as Secretary,
Industrial Licensing Policy Inquiry Committee and Joint Secretary to the
Government of India in the Ministry of Industrial Development and Company
Affairs, New Delhi. The petitioner got pension and
other retirement benefits according to the Government rules in force at that
time. On 25.5.1979 the Government of India introduced Liberalised Pension
Formula. The main feature of this Formula was that it introduced revised method
of calculation of pension based on slab system and raised monthly pension to
Rs.150O/- per month. The benefit of the Liberalised pension Formula, 1979 was
made available only to those Government servants who retired on or after
31.3.1979. A Writ Petition was filed in this Court challenging the fixation of
the cut-off date of 31.3.1979 for payment of Liberalised pension. It was
claimed that irrespective of the date of retirement the benefit of the Liberalised
Pension Formula must be made available to all the pensioners governed by 1972
Rules will be governed by this Liberalised scheme of pension irrespective of
the date of their retirement. In that case, D. S. Nakara & Ors. vs. Union
of India & Ors., 1983 (2) SCR 165 it was argued on behalf of the
petitioners that all petitioners entitled to receive pension under the relevant
rules formed a class irrespective of the date of their retirement. There could
not be a mini classification within this class. The classification based on
retirement before or subsequent to the specified date was invalid. The scheme
of liberalisation in computation of pension must be uniformly enforced with
regard to all pensioners.
On the
basis of the judgment of this Court on 22.10.1983 the Government issued orders
extending the benefit of the judgment to all pensioners covered by CCS (Pension
Rules) as well as Liberalised Pension Rules 1950.
After
promulgation of the Order dated 22.10.1983 doubts arose regarding the extent of
the benefit of various liberalisations made from time to time in Pension Rules.
It was clarified by the Government that only the benefit of this liberalisation
should be allowed to all pensioners as had been mentioned in the Government
Orders dated 22.10.1983. In all other respects the rules, prevalent on the date
of retirement of the pensioners, will apply.
According
to the clarification issued by the Ministry of Finances the revised pension is
to be computed on the average emoluments drawn during the last 10 months of
service. This rule will apply to all the pensioners. However the definition of
emoluments as in force at the time of the retirement of an employee has not
undergone any change. The case of the petitioner is that following Nakara's
case he has to be given the same amount of pension as other employees of his
rank irrespective of the date of retirement.
The
case of the petitioner is that the judgment in leaves no room for doubt that
there should be no discrimination among the persons getting pension from the
Government. There cannot be any classification among the retired Government
employees on the basis of date of retirement. Therefore they must be given
higher pension on the same basis as it was being given to persons who have
retired after 1st
April, 1979.
We are
unable to uphold this contention. Nakara's Case (supra) dealt with the manner
of calculation. of pension on the basis Of average emoluments of a retired
Government employee. Prior to the liberalisation of the formula for computation
of pension made by the memorandum dated 25th May, 1979, average emoluments of the last
thirty months of service of the employee provided the basis for calculation of
pension. The 1979 memorandum provided that average emoluments must be
calculated on the basis of the emoluments received by a Government servant
during the last ten months of the service. That apart, a new slab system for
computation of pension was introduced and the ceiling on pension was raised. As
a result of these changes, the pensioners who retired prior to the specified
date suffered triple jeopardy, viz., lower average emoluments, absence of slab
system and the lower ceiling. This Court struck down the provision including
the memorandum which provided that:
"the
new rates of pension are effective from 1st April, 1979 and will be applicable to all
service officers who became/become non effective on or after that date."
The Court further held:
"Omitting
the unconstitutional part it is declared that all pensioners governed by the
1972 Rules and Army Pension Regulations shall be entitled to pension as
computed under the liberalised pension scheme from the specified date,
irrespective of the date of retirement. Arrears of pension prior to the specified
date as per fresh computation is not admissible" It is to be seen that the
judgment did not strike down the definition of 'emoluments'. It merely held That
if pension was to be calculated on the basis of the last ten months' emoluments
of a Government servant, after 1.4.1979, there is no reason why those who have
retired before 1.4.1979 should get pension calculated on the basis of average
of last thirty six months' emoluments. In other words, the rule of computation
must be the same. This Court did not held that those who have retired before
1.4.1979 must be treated as having the same emoluments as those who retired on
or after 1.4.1979 for the purpose of calculation of pension. Therefore, on the
strength (supra), the petitioner is not entitled to ask for computation of
pension with reference to emoluments which he never got. Rule 5(1) of CCS
(Pension) Rules, 1972 provides:
"5/1)
Any claim to pension or family pension shall be regulated by the provisions of
these rules in force at the time when a Government servant retires or is
retired or is discharged or is allowed to resign from service or dies, as the
case may be." The average of the last ten months' emoluments must form the
basis for calculation of pension. That means those who were actually drawing larger
emoluments in the last ten months of their service will get larger amounts of
pension.
does
not lay down that the same amount of pension must be paid to persons retiring
from Government service irrespective of the date of retirement. The contention
of the petitioner that there is only one class of Government employees for the
purpose of calculation of pension cannot be disputed. The Constitution Bench in
Nakara's Case has clearly laid down that there cannot be any mini
classification of Government servants for calculating the amount of pension
payable. That means the same method should be adopted for calculating pension
for all Government servants. But the question is what should be the quantum of
pension payable to a Government servant? Even if pension is calculated on the
basis of the same formula the basis of calculation has to be the average of the
last ten months' emoluments. This principle of adopting last ten months'
emoluments as the basis for calculation of pension must be uniformly applied to
all persons drawing pension from the Central Government. This was all that was
laid down in Nakara's case. It, however, did not lay down that the quantum of
emoluments drawn during the last ten months of service of each Government
employee must be taken to be the same for this purpose.
This
aspect of the question was examined in the case of Indian Ex Services Leaque
and ors. etc. v. Union of India and Ors.etc., (1991) 1 SCR 158. The case was argued on
behalf of Armed Forces personnel retiring from commissioned ranks as well as
Armed Forces personnel retiring from below the commissioned rank who were
represented by Shri K.L.Rathee. J.S. Verma J. (As His Lordship, then was)
speaking for the Constitution Bench which heard the matter observed that the
contention of the writ petitioners on the basis of Nakara decision was
untenable. On behalf of the petitioners, it had been contended that all
retirees who held the same ranks irrespective of their date of retirement must
be given the same amount of pension. In effect, what was urged was that there
must be "one rank one pension" for all the retirees irrespective of
their date of retirement.
This
contention of the petitioners was rejected by the Constitution Bench by holding
that Nakara's decision was of limited application. There was no scope for
enlarging the ambit of that decision to cover all claims made by the
petitioners for identical amount of pension to every retired person from the
same rank irrespective of the date of retirement, even though the reckonable emoluments
for the purpose of computation of pension were different.
In
fact, the principle laid down in the case of Indian Ex-services League &
Ors, (supra) negates the case of the petitioner in the instant case. Nakara's
case does not lay down that the last ten months emolument must be deemed to be
the same for all the employees at the time of their retirement. The Government
rules in force at the time of retirement of the employees. But if the principle
of average of last ten months' emoluments has been adopted for some employees,
then that Principle must be extended to all the employees who have retired
before them. Nakara's Case did not lay down that the reckonable emoluments for
the purpose of calculation of pension must be the same for a person occupying
the same post.
It is
also to be noted that the case of Krishena Kumar v. Union of India and others,
AIR 1990 SC 1782, another Constitution Bench examined the question whether on
the strength of Nakara's Case, petitioners were entitled to the same Provident
Fund benefits as were given to those who retired subsequent to 31st March, 1979. It was argued on behalf of the
petitioner that state's obligation towards pensioners was the same as that
towards persons who were to be paid Provident Fund benefits. This Court held
that was not the ratio of Nakara's Case On retirement of an employee legal
obligation under the Provident Fund account ended on payment of the Provident
Fund dues of the employee. The Rules governing Provident Fund and contribution
to such Fund were entirely different from the rules governing pension.
It was
also held in the case of Union of India v. All India Services, Pensioners'
Association and another, AIR 1988 SC 501, that the principles laid down in Nakara's
Case could not be extended to the case of payment of gratuity.
It
clearly appears from all these cases that is not a case of universal
Application irrespective of the facts and circumstances of the case. When the
Government decided that pension was to be calculated on the basis of average
salary drawn over a period of last ten months, it was held in Nakara, that this
principle has to be applied even to those persons who had retired before the
notified date. That.
however,
does not mean that the emoluments of the person who were retiring after the
notified date and those who have retired before the notified date holding the
same status must be treated to be the same. This argument was specifically negatived
by the Constitution Bench in the case of All India Services Pensioners! Association
(supra). What the petitioner is claiming in this case is more or less the same
relief as was denied to him in the above case.
In
view of the aforesaid this writ petition must fail and is dismissed with no
order as to costs.
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