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PETITIONER: THE STATE OF PUNJAB

       Vs.

RESPONDENT: JUSTICE  .S. DEWAN(RETIRED CHIEF JUSTICE) & ORS.

DATE OF JUDGMENT:       25/04/1997

BENCH: K. RAMASWAMY, G.T. NANAVATI, K.VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:       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.

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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 Court in  D.S. Nakara and others Vs. Union of India 1983 (1) 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

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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  inD.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 of India  Vs. P.N.  Menon 1994(4) SCC 68 also to some extent 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

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    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.