Hari
Ram Gupta Vs. The State of Uttar Pradesh
[1998] INSC 349 (22
July 1998)
Sujata
V. Manohar, G.B. Pattanaik Pattanaik, J.
ACT:
HEAD NOTE:
Leave
granted.
This
appeal by grant of special leave is directed against the judgment dated 13th of
November, 1995 of the Allahabad High Court in Civil Miscellaneous Petition No.
557 of 1987. Hari Ram Gupta husband of the present appellant, had filed the
writ petition seeking a mandamus from the court to the appropriate authorities
to give him the benefits of the Uttar Pradesh Palika (Centralised) Service
Retirement benefit Rules, 1981 (hereinafter referred to as 'the Rules'). But
said Hari Ram Gupta had retired from service on superannuation in the year
1980. He, however, claimed that he would be entitled to pension under the Rules
as the Rules are intended to apply retrospectively and at any rate following
the principle of the Judgement of this Court in D.S. Nakara and other vs. Union
of India, (1983) 1 SCC 305, the court should grant him the relief. The High
Court by the impugned judgment came to hold that the Rules have no
retrospective operation, and therefore, the applicant was not entitled to claim
pension under the Rules.
Soon
after the judgment of the Allahabad High Court, the husband of the appellant
having died, the widow filed the special leave application out of which this
appeal arises.
The
sole question for consideration is whether the Rules can be said to have any
retrospective application and are applicable to those employees belonging to
the Palika (Centralised) Service, who retired from service prior to the coming
into force of the Rules. It is not disputed that before the Rules came into
operation there was no rules providing pension for the employees of the centralised
services.
The
learned counsel for the appellant strenuously contended that a conjoint reading
of sub-rules (2) and (3) of Rule 3 would make it crystal clear that the Rule is
applicable even to those employees who have retired from service on the date
the Rules came into operation, provided they exercise their option in
accordance with the Rules within the stipulated period of 90 days from the
enforcement of the Rules and they deposit the amount finally withdrawn from Palika's
contribution and bonus deposited in his Provident Fund Account into the pension
fund established under Part VI of the Rules. According to the learned counsel
unless such an interpretation is given, the provision of sub-rule (3) would
become otiose inasmuch as an officer is entitled to finally withdraw the amount
from the Provident Fund on super annuation and not while he continues to be in
service. The learned counsel further contended that under identical
circumstances an employee of a school under New Delhi Municipal Committee had
approached this Court in the case of Shakuntala Mehrishi, New Delhi vs. New
Delhi Municipal Committee and others, (1991) 3 SCC 521 and this Court had
granted the retiral benefits to the employee. The aforesaid decision, contends
the learned counsel for the appellant, should apply with full force to the case
in hand.
The
learned counsel further urged that the Rules in question providing for pension,
if is held to apply to only those employees who retired subsequent to the
coming into force of the Rules and not to those to have already retired, then
it would be violative of the law laid down by this Court in the case of D.S. Nakara
(supra) inasmuch as pension paid is not a bounty nor an ex-gratia payment for
past services rendered and is a social welfare measure rendering socio-economic
justice to those who in the hey-day of their life ceaselessly toiled for the
employer on an assurance that in their old age they would not be left in lurch.
Learned
counsel for the respondent, on the other hand contended that there is no
ambiguity in the Rules and nowhere the Rules indicate that it would apply
retrospectively on certain conditions being fulfilled. He further contended
that under the provisions of the Regulation for payment of Provident Fund made
by Nagar Palika, Jhansi an employee is entitled to finally withdraw after
rendering 25 years of service or when such employee has less than 8 years of
service to attain the age of superannuation, and therefore, it is not correct
that final withdrawal is permissible only on the date of superannuation. In that
view of the matter the expression 'final withdrawal' in sub-rule (3) of Rule 3
of the Rules cannot be interpreted to mean that the Rules have a retrospective
operation. The learned counsel also urged that the rules determining the
service conditions of an employee under the service jurisprudence is usually
prospective in nature unless there is anything in the Rules which indicate the
legislative intent of making the rule retrospective or the rule is expressly
made retrospective. Since neither of these conditions are satisfied in the case
in hand, the rules must be held to be prospective, and therefore, would not
govern the case of those who retired prior to the coming into force of the
Rules. on the question of applicability of the decision of this Court in Shakuntala
Mehrishi case, the learned counsel contended that the ratio laid down in that
case has no application and the said decision is no guidance for deciding the
question as to whether the Rules in the present case has any retrospective
operation. On the question of the applicability of the ratio in D.S. Nakara's
case, the learned counsel for the respondent urged that the appellant has not
challenged validity of the Rules and on the other hand seek relief on the basis
of the said Rule, therefore, the Rule cannot be struck down. He further
contended that the decision of this Court in D.S. Nakara has been watered down
by this Court in several subsequent cases and it is the settled position now
that the employees retiring on a particular date would be governed by the
benefits of the rules then existing and cannot complain of if at a subsequent
stage certain other rules confer some additional benefits. Thus, judged the
principles enunciated by this Court in nakara have no application to the case
in hand.
In view
of the rival submission, the first question that arises for consideration is
whether the Rules can be said to have any retrospective operation? We have
examined the Rules carefully and there is no express provision in the Rules
giving it retrospective operation. The question then arises as to whether from
any of the provisions contained in the Rules is it possible to infer that the
Rules have been given retrospective operation. The argument of the learned
counsel appearing for the appellant in this context is based upon the language
used in sub-rule (2) and sub-rule (3) of Rule 3. For better appreciation of the
point in issue sub-rules (1), (2) and (3) of Rule 3 are quoted hereinbelow in extenso:-
3.
Application of the rules.-
(1)
These rules shall apply compulsorily to all those officers who were appointed
on or after July 9,
1966 under clause (1)
of Rule 21 of the Uttar Pradesh Palika (Centralised) Services Rules, 1966 and
would become permanent on any post in the Centralised Services.
(2)
The officers who were finally absorbed on any post in Centralised Services
under clause (2) of Rule 6 of the Uttar Pradesh Palika (Centralised) Services
Rules, 1966 will have an option to elect whether they would be governed by the
existing Pension/Provident Fund Rules of the Palika as hitherto or would like
to governed by those rules. This option shall be exercised within ninety days
from the enforcement of these rules and the option once exercised shall be
final.
(3) If
an officer opting these rules has finally withdrawn the amounts of Palika's
contribution and bonus deposited in his Provident Fund Account, the same shall
have to be deposited by him into the pension fund established under Part VI of
these Rules along with interest at the rates fixed from time to time by the
Reserve Bank of India." Sub-rule (1) of Rule 3
clearly indicates that Rule should apply to those officers who were appointed
on or after July 1966 under clause 1 of Rule 21 of the Centralised Services
Rules of 1966 and would become permanent in the Centralised services. This
sub-rule obviously has no application. The earned counsel appearing for the
appellant, however, urged that if sub-rules (2) and (3) of Rule 3 are read
together it unequivocally indicates that the Rules do apply to those persons
who have already retired. In as much as sub-rule (3) gives an option to
officers to exercise option to be governed by the Rules and if they have
finally withdrawn the amounts of Palika's contribution and bonus deposited in
Provident Fund Account the same will have to deposited into the pension fund.
It is contended by the learned counsel that an employee can finally withdraw
the amount from the Provident Fund only on his superannuation and not at any
earlier point of time while he continues to be in service and, therefore, this
sub-rule clearly indicates that the Rules apply to those who have already
superannuated on the date the Rule came into force. But on examining the
provisions contained in Pension and General Provident Fund Regulations or Rules
which governed the case of employees of Palika, more particularly the
provisions of Clause 5 - C(1) we find that final withdrawals under the
Regulation is permitted in the case of Municipal servants who have either
rendered 25 years service or have less than 8 years to attain the age of
superannuation. The purpose for which such final withdrawal is permissible is
enumerated in other sub-clauses of said Clause 5 - C. In this view of the
matter the argument of the earned counsel appearing for the appellant that final
withdrawal is permissible only on the date of superannuation cannot be
sustained and the expression 'final withdrawal' as envisaged under sub-rule (3)
of Rule 3 would mean those final withdrawals made by an employee while
continuing in service for the purposes mentioned in sub-clause (2) of Clause
5-C. Consequently, the argument that a combined reading of sub-clause (3) and
sub- clause (2) of Rule 3 indicates that the Rules have retrospective
application is devoid of any force and the same accordingly stands rejected.
The
next question that arises for consideration is whether the judgment of this
Court in Shakuntala Mehrishi vs. New Delhi Municipal Committee and other (1990)
3 SCC 521, any way helps the appellant in getting the relief sought for? In the
aforesaid case the teacher of a re- cognised aided school opted for pension and
gratuity within stipulated period in prescribed proforma as desired by
statutory notification. But notwithstanding his superannuation he did not
receive the benefits as the modalities about contribution towards pension fund
and approval of Government of India had not been obtained. This Court held that
payments to the employee cannot be deferred on such grounds over which the
employee has not control and accordingly directed that the necessary payments
be made. we fail to understand how the aforesaid decision is in any way
applicable to the case in hand for deciding the question as to whether the
Rules providing for pension would retrospectively apply to the case of an
employee who had already retired before the Rules came into operation. In our
considered opinion the aforesaid decision of this Court does not help the
appellant in any manner.
The
only other question that survives for our consideration is whether the ratio in
Nakara's case will assist the appellant in getting the relief sought for? In
D.S. Nakara and others vs. Union of India (1983) 1 SCC, 305 the question for
consideration before this Court was whether on the basis of date of retirement
the retirees can be classified into different groups and thereupon make
provision granting some benefits to one group denying the others? In the
aforesaid case the provisions for pension was applicable to all retirees and,
therefore, pensioners form a class as a whole. But when Liberalised Pension
Scheme was introduced the said Scheme was made applicable to a group of
pensioners and not to all and therefore, it was held by this Court that
pensioners form a class as a whole and cannot be micro-classified by an
arbitrary, unprincipled and unreasonable eligibility criteria. it is to be
noted that the aforesaid judgment was considered by this Court In the
subsequent Constitution Bench judgment of Krishna Kumar vs. Union of India
(1991) 4 SCC, 207 wherein the decision of Nakara (supra) was explained and it
was held that the pension retirees and provident fund retirees do not form one
homogeneous class on the other hand the Rules governing the provident fund and
its contribution are entirely different from the Rules governing pension and,
therefore, it would not be reasonable to argue what is applicable to the
pension retirees must also equally be applicable to Provident Fund retirees
must also equally be applicable to Provident Fund retirees. It was further held
in the aforesaid case that the rights of each individual retiree finally crystallised
on his retirement where after no continuing obligation remained in case of
those who are governed by Provident Fund Rules whereas in case of Pension
retirees the obligation continues till the death of the employee. This Court
categorically held that Nakara (supra) cannot be an authority for the decision
in Krishna Kumar (supra). In Union of India vs. B.P.N. Menon (1994) 4 SCC 68 a
similar question came up for consideration and distinguishing Nakara and following
Krishna Kumar and other similar cases the Court held that whenever the
Government or an authority, which can be held to be a State within the meaning
of Article 12 of the Constitution, frames a scheme for persons who have
superannuated from service, due to many constraints, it is not always possible
to extend the same benefits to one and all, irrespective of the dates of
superannuation. As such any revised scheme in respect of post-retirement
benefits, if implemented with a cut-off date, which can be held to be
reasonable and rational in the light of Article 14 of the Constitution, need
not be held to be invalid. Whenever a revision takes place, a cut-off date
becomes imperative because the benefit has to be allowed within the financial
resources available with the Government. When the Army personnel claimed the
same pension irrespective of their date of retirement this Court in the
Constitution Bench case of the Indian ex-services League vs. Union of India,
(1991)2 SCC 104, the Court considered the grievance of ex-servicemen who had
laid the claim on the basis of nakara (supra) but ultimately negatived the same
and followed Krishna Kumar (supra). In All India Reserve Bank Retired Officers
Association vs. Union of India, (1192) Suppl 1 SCC 664, when the validity of
the introduction of Pensions scheme in lieu of Contributory Provident Fund
Scheme was challenged on the ground that Bank employees who retired prior to
1.1.1986 have not been given the benefit of the said scheme it was held by this
Court that there is no arbitrariness in the same.
This
being the position the appellant having superannuated prior to the Rule coming
into force cannot claim the right to pension under the Rules with the help of
the decision of this Court in Nakara (supra) and further in view of our
conclusion that the Rules do not have any retrospective operation the relief
sought for by the appellant to get pension under the Rules cannot be granted.
In the
premises, as aforesaid, the appeal fails and is dismissed. But in the circumstances
there will no order as to costs.
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