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PETITIONER: K. L. RATHEE

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       07/07/1997

BENCH: S.C. AGRAWAL, SUHAS C. SEN.

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T 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

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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

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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

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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.