http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: COMMANDER HEAD QUARTER, CALCUTTA

       Vs.

RESPONDENT: CAPT. BIPLABENDRA CHANDA

DATE OF JUDGMENT:       05/11/1996

BENCH: B.P. JEEVAN REDDY, SUHAS C. SEN

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Heard the counsel for both the parties.      Leave granted.      This  appeal   is  preferred  against  the  judgment  a Division Bench  of the  Calcutta High  Court dismissing  the writ appeal  preferred by the appellants. The respondent was a  Commissioned   Officer.  He  retired  on  May  18,  1982. According to the Rules then in force, only 2/3rd of the pre- commissioned service  was  allowed  to  be  counted  towards qualifying  service   for  earning  pensionary  benefits.  a minimum period  of qualifying  service was also provided for becoming eligible for pension. On the basis of the aid Rule, the respondent  was found  ineligible for  grant of grant of pension and accordingly no pension was granted to him. About four years  later, the  Rules relating to qualifying service were changed  [with effect  from January 1, 1986] based upon the recommendations of the fourth pay commission. One of the features of  these Rules  was  that  full  pre  commissioned service was  to be  taken into  count for  working  out  the qualifying service required for earning pensionary benefits. In other  words, whereas  previously only  2/3rd of the pre- commissioned  service   was  to  be  taken  into  count  for determining the  eligibility and the quantum of pension, the entire pre-commissioned service could be taken into count as per the Rules which came into force with effect from January 1, 1986. The respondent laid a claim for grant of pension on the basis  of the  said new  Rules or revised Rules, as they may be  called. That  was denied whereupon he approached the High Court  by way  of a  writ petition.  The learned Single Judge allowed the writ petition relying upon the decision of this Court in D.S. Nakara & Ors. V. Union of India [1983 (2) S.C.R. 165],  which order  has been affirmed by the Division Bench.      We are  of the opinion that the ratio of D.S.Nakara has no application  here.  D.S.Nakara  prohibits  discrimination between pensioners  forming a  single class  and governed by the same  Rules. It  was held  in that  case that  the  date specified in  the liberalised  pension Rules  as the cut-off date was  chosen arbitrarily.  What is not the case here. No pension was  granted to  the respondent  because he  was not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

eligible therefor  as per  the Rules in force on the date of his retirement.  The  new  and  revised  Rules  [it  is  not necessary for  the purpose  of this  case  to  go  into  the question whether  the Rules that came into force with effect from January  1, 1986  were new  Rules or  merely revised or liberalised Rules]  which came  into force  with effect from January 1,  1996 were  not given  retrospective effect.  The respondent  cannot  be  made  retrospectively  eligible  for pension by virtue of these Rules in such a case. This is not a case where a discrimination is being made among pensioners who were  similarly  situated.  Accepting  the  respondent’s contention would  have  very  curious  consequences  even  a person who  had retired  long earlier  would equally  become eligible for  pension on  the basis  of the  1986 Rules. The cannot be.      The decision in D.S.Nakara has indeed been explained by two subsequent Constitution Bench decisions of this Court in Krishna Kumar  & Ors.  v. Union  of India  & Ors.  {1990 (4) S.C.C. 207]  and Indian  Ex-Services League  & Ors.  Etc.  v Union of India & ors etc. [1991 (1) S.C.R. 158. In the later decision, it has been held that "the petitioners’ claim that all pre-1.4.1979  retirees of  the Armed Forces are entitled to the  same amount  of pension  as shown in appendices ’A’, ’B’ and  ’C’ for each rank is clearly untenable and does not flow from  the Nakara  decision". We  may also refer in this connection to  the observations  in another decision of this Court in  State of West Bengal v. Ratan Behari Dey [1993 (4) S.C.C. 62] to the following effect.      "..it is  open to  the State  or to      the Corporation as the case may be,      to change the conditions of service      unilaterally. Terminal  benefits as      well   as    pensionary    benefits      constitute conditions  of  service.      The  employer   has  the  undoubted      power to revise the salaries and/or      the pay  scales  as  also  terminal      benefits/pensionary  benefits.  The      power to  specify a date from which      the  revision   of  pay  scales  or      terminal        benefits/pensionary      benefits, as the case may be, shall      take effect is a concomitant of the      said power. So long as such date is      specified in  a reasonable  manner,      i.e.,  without   bringing  about  a      discrimination  between   similarly      situated persons,  no  interference      is called for by  the court in that      behalf the  power of  the State  to      specify  a   date  with  effectfrom      which  the  Regulations  framed  or      amended, as  the case may be, shall      come into  force is unquestioned. a      date   can    be   specified   both      prospectively    as     well     as      retrospectively. The  only question      is whether  the prescription of the      date     is     unreasonable     or      discriminatory. Since we have found      that the  prescription of  the date      in this  case is  neither arbitrary      nor unreasonable,  the complaint of      discrimination must fail."      The learned  counsel for  the respondent  relied upon a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

recent decision  of this Court in M.C.Dhinqra. Union India & Ors. [1996  (7) S.C.C.564]  but that was also a case where a distinction was  sought to be made between the same class of pensioners. The said decision, therefore, cannot come to the rescue of the respondent.      For tho  above reasons,  this appeal  is  allowed.  the judgment of  the Division  Bench of the High court affirming the decision  of the  learned Single Judge is set aside. The writ petition  filed by  the  respondent  is  dismissed.  No costs.