State
Of U.P. & ANR Vs. Jogendra Singh &
ANR [1997] INSC 879 (28 November 1997)
SUJATA
V. MANOHAR, M. JAGANNADHA RAO
ACT:
HEADNOTE:
THE
28TH DAY OF NOVEMBER, 1997 Present:
Hon'ble
Mrs. Justice Sujata V.Manohar Hon'ble Mr. Justice M. Jagannadha Rao K.S. Chauhan,
(K.P. Singh) Adv. for R.B. Misha, Adv. for the appellant Goodwill Indeevar,
Adv. for the Respondents.
The
following Judgment of the Court was delivered:
Mrs. Sujata
V. Manohar. J At the material time, respondent no.1 was holding the post of
Senior Prosecuting Officer, Agra. The date
of birth of respondent no.1 was 20.10.1919. In the ordinary course, he would
have retired on superannuation on attaining the age of 58 years on 20th of
October, 1977. The first respondent, however, took voluntary retirement after
completion of thirty one and a half years of service on 12th of April, 1976. He
has been granted retirement benefits including pension and gratuity
accordingly. Respondent no.1 took voluntary retirement under the provisions
Fundamental Rule 56 of Uttar Pradesh Fundamental Rules. Under Rule 56(c),
"the Government servant may by notice to the appointing authority
voluntarily retire at any time after attaining the age of 45 years of after he
has completed qualifying service of 20 years." By the Uttar Pradesh
Fundamental Rule 56 (Amendment Act), 1976, certain amendments were made to Rule
56.
Under one such amendment, sub-clause (e) of Rule 56 was amended by adding a
proviso. Original Fundamental Rule 56(e) provided as follows:
"56(e):
A retiring pension shall be payable and other retirement benefits, if any,
shall be available in accordance with an subject to the provision of the
relevant rules to every Government servant who retires or is required or
allowed to retire under this rule".
The
proviso which was added was as follows:
"Provided
that where a Government servant voluntarily retires or is allowed voluntarily
to retire under this rule the appointing authority may allow him, for the
purposes of pension and gratuity, if any, the benefit of additional service of
five years or of such period as he would have served if he had continued till
the ordinary date of his superannuation, whichever be less;" The Amending
Act is of 18.11.1976. Therefore, the proviso came into effect on 18.11.1976.
The
first respondent contends that although he had retired at a time when the
proviso was not incorporated in the Fundamental Rules, he should be given the
benefit of the proviso and an additional service of one and a half years should
be counted for the purposes of his pension and gratuity. He filed in February,
1989, about 13 years after the amendment, a Writ petition in the High Court
claiming the benefit of the proviso to Fundamental Rule 46(e). His writ
petition has been allowed by the High Court and hence the present appeal has
been filed before us by the State of U.P.
The
claim of respondent no.1 has been allowed by the High Court on the basis of the
ratio of the decision of this court in D.S. Nakara & Ors. v. Union of India [(1983)
1 SCC 305]. The ratio in Nakara's case (supra), however, is not applicable in
the present case. In Nakara's case (supra), a specific cut-off date was
provided for the grant of pensionary benefits. Those who had retired prior to
that date were not given the benefits. This was considered as arbitrary in the
facts and circumstances of that case.
There
is no question of any cut-off date being prescribed in the present case. The
first respondent was governed by the Uttar Pradesh Fundamental rules. On the
date when he took voluntary retirement and left service, he was given
retirement benefits on the basis of the Fundamental Rules and other provisions
which were then in force. Fundamental rule 56 has been subsequently amended by
an amendment which came into force on 18th of November, 1976 because the
amendment inserting the proviso came on the statute book on that date. It will,
therefore, be applicable to all those who take voluntary retirement after the
proviso was inserted. All laws, in this sense, are prospective unless they are
made retrospective either expressly or by necessary implication. The Amending
Act did not make the amendment retrospective. Therefore, persons who retired at
a time when the proviso was not on the statute book cannot claim the benefit of
the proviso. The first respondent having retired prior to the insertion of the
proviso in Fundamental Rule 56(e), cannot claim the benefit of the proviso.
The
appeal is, therefore, allowed and the impugned order of the High Court is set
aside. However, at the time when special leave was granted in the present
appeal, it was limited to the question whether an employee who had retired
before the introduction of the proviso would be entitled to the benefit of that
proviso for the purpose of computation of pension or gratuity. This court had
made it clear that in the case of the respondent, the court did not propose to
interfere with the order granting any benefit to him of the impugned order in
view of the special facts of the case. We order accordingly. There will be no
order as to costs.
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