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PETITIONER: S. BANERJEE

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT24/10/1989

BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) RANGNATHAN, S. PANDIAN, S.R. (J)

CITATION:  1990 AIR  285            1989 SCR  Supl. (1) 562  1989 SCC  Supl.  (2) 486 JT 1989 (4)   547  1989 SCALE  (2)941

ACT:     Central Civil Services (Pension) Rules, 1972: Rule  5(2) and 48A--Supreme Court employee--Permitted voluntary retire- ment  with effect from January 1, 1986--Whether entitled  to claim  benefit of para 17.3 of Report of Fourth Central  Pay Commission.

HEADNOTE:     Paragraph  17.3 of Chapter 17, Part II of the Report  of the  Fourth Central Pay Commission entitled  Government  em- ployees  retiring during the period January 1, 1986 to  Sep- tember  30,  1986 to consideration of  the  entire  dearness allowance  drawn by them upto December 31, 1985 as  pay  for pensionary benefits. Rule 5(2) of the Central Civil Services (Pension) Rules, 1972 permits the day on which a  Government servant  retires  from  service to be treated  as  his  last working  day. The proviso thereto, however, states  that  in the  case  of a Government servant who  retires  voluntarily under Rule 48-A the date of retirement shall be treated as a non-working day.     The petitioner was permitted to retire voluntarily  from the  service of the Registry of the Supreme Court under  the provisions  of Rule 48-A of the Rules with effect  from  the forenoon  of January 1, 1986 by an order dated  December  6, 1985.  His  claim to the benefit of paragraph 17.3  was  not acceded to.     In  the writ petition it was contended for the  respond- ents  that  as in view of the proviso to rule  5(2)  of  the Rules the petitioner was not entitled to the salary for  the day of his retirement, he was not entitled to the benefit of paragraph 17.3. Allowing the writ petition,     HELD: Under paragraph 17.3 of Chapter 17, Part II of the Report  of  the Fourth Central Pay Commission  the  benefits recommended  will be available to employees retiring  during the  period, January 1, 1986 to September 30, 1986.  In  the instant case, the petitioner was permitted to retire  volun- tarily from the service of the 563 Registry of the Supreme Court with effect from the  forenoon

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of January 1, 1986. The fact that under the proviso to  rule 5(2)  of the Rules, the petitioner will not be  entitled  to any  salary for the day on which he actually retired has  no bearing  on the question as to the date of  retirement.  The petitioner could not be said to have retired on December 31, 1985. It has then to be said that he had retired with effect from  January  1, 1986 and that is also the  order  of  this Court  dated December 6, 1985. He, therefore,  comes  within the purview of paragraph 17.3 of the recommendations of  the Pay Commission. [565A-E]     The  respondents to calculate and pay to the  petitioner within  three  months  his pension in  accordance  with  the recommendation  of the Pay Commission as contained in  para- graph 17.3. [566D]

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition (Civil) No. 1155 of 1987. (Under Article 32 of the Constitution of India). S.P. Malik and Mrs. Lalitha Kaushik for the Petitioner.     Anil  Dev  Singh, R. Venkataramani, R.B. Mishra and  Ms. A. Subhashini for the Respondents. The Judgment of the Court was delivered by     DUTT, J. The petitioner was the Additional Registrar  of this  Court.  His normal date of retirement  was  March  31, 1987. He, however, sought for voluntary retirement from  the service of this Court and on his application in that regard, the following order dated December 6, 1985 was  communicated to him by the Registrar of this Court:                                        "OFFICE ORDER                        The  Hon’ble  the  Chief  Justice  of               India  has  accepted  the notice  of  Shri  S.               Banerjee,  Offg. Additional Registrar  (Perma-               nent  Deputy  Registrar),  seeking   voluntary               retirement  from service under the  provisions               of  Rule  48A of the  Central  Civil  Services               (Pension)  Rules, 1972, and has permitted  him               to retire voluntarily from the service of  the               Registry  of the Supreme Court of  India  with               effect from the forenoon of January 1, 1986."               564                   It is clear from the order extracted above               that  the petitioner was permitted  to  retire               voluntarily  from the service of the  Registry               of  the  Supreme Court with  effect  from  the               forenoon of January 1, 1986.     After  the  retirement  of the  petitioner,  the  Fourth Central Pay Commission (for short ’Pay Commission’) gave its report recommending the revision of salaries and pension  of the Government employees. It is not disputed that the  above recommendations of the Pay Commission have been accepted  by the  Government and that the benefit thereof is also  avail- able  to  the  employees of this Court.  Paragraph  17.3  of Chapter  17 of Part II at page 93 of the Report of  the  Pay Commission provides as follows:               "17.3 In the case of employees retiring during               the  period January 1, 1986 to  September  30,               1986,  Government  may consider  treating  the               entire dearness allowance drawn by them up  to               December 31, 1985 as pay for pensionary  bene-               fits."     The petitioner claimed the benefit of the recommendation of  the  Pay Commission as contained in the  said  paragraph

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17.3, but it was not allowed on the ground that he did  not, as  he was not entitled to, draw salary for January 1,  1986 in  view  of the proviso to rule 5(2) of the  Central  Civil Service  (Pension) Rules, 1972, hereinafter referred  to  as ’the Rules’. Rule 5(2) reads as follows:               "5(2).  The day on which a Government  servant               retires  or is retired or is discharged or  is               allowed  to resign from service, as  the  case               may  be, shall be treated as his last  working               day.  The date of death shall also be  treated               as a working day.                        Provided  that in the case of a  Gov-               ernment servant who is retired pre-maturely or               who  retires voluntarily under clause  (j)  to               (m)  of  Rule 56 of the Fundamental  Rules  or               Rule 48 (or Rule 48-A) as the case may be, the               date of retirement shall be treated as a  non-               working day."     At  the hearing of the writ petition, it has  also  been vehemently  urged  on behalf of the respondents that  as  in view  of the proviso to rule 5(2) of the Rules, the date  of retirement  of  the petitioner should be treated as  a  non- working  day or, in other words, as the petitioner  was  not entitled to the salary for the day of his retirement, he was not 565 entitled  to  the benefit of the recommendation of  the  Pay Commission  as  contained in paragraph. 17.3 of  the  report extracted above.     Under  paragraph 17.3, the benefits recommended will  be available  to employees retiring during the period,  January 1, 1986 to September 30, 1986. So the employees retiring  on January 1, 1986 will be entitled to the benefit under  para- graph  17.3. The question that arises for our  consideration is whether the petitioner has retired on January 1, 1986. We have already extracted the order of this Court dated  Decem- ber  6, 1985 whereby the petitioner was permitted to  retire voluntarily from the service of the Registry of the  Supreme Court  with effect from the forenoon of January 1, 1986.  It is  true  that in view of the proviso to rule  5(2)  of  the Rules, the petitioner will not be entitled to any salary for the  day on which he actually retired. But, in our  opinion, that  has no bearing on the question as to the date  of  re- tirement.  Can  it be said that the  petitioner  retired  on December  31,  1985?  The answer must be  in  the  negative. Indeed,  Mr.  Anti Dev Singh, learned counsel  appearing  on behalf  of the respondents, frankly conceded that the  peti- tioner  could  not be said to have retired on  December  31, 1985.  It is also not the case of the respondents  that  the petitioner  had  retired from the service of this  Court  on December 31, 1985. Then it must be held that the  petitioner had  retired  with effect from January 1, 1986 and  that  is also the order of this Court dated December 6, 1985. It  may be  that  the petitioner had retired with  effect  from  the forenoon  of January 1, 1986 as per the said order  of  this Court,  that is to say, as soon as January 1, 1986 had  com- menced the petitioner retired. But, nevertheless, it has  to be  said that the petitioner had retired on January 1,  1986 and  not  on December 31, 1985. In  the  circumstances,  the petitioner comes within the purview of paragraph 17.3 of the recommendations of the Pay Commission.     After  the conclusion of the hearing of the  writ  peti- tion,  an  additional affidavit purported to have  been  af- firmed  by Mr. P.L. Sakarwal, the Director (Justice) of  the Department  of Justice. In paragraph 8 of the affidavit  the

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deponent  has craved leave of this Court to file this  addi- tional  affidavit. It does not appear from the copy  of  the purported additional affidavit whether it has been  affirmed or not inasmuch as no date of affirmation has been mentioned therein. Be that as it may, a photocopy of the Office  Memo- randum  dated April 14, 1987 of the Ministry  of  Personnel, Public  Grievances  and Pensions, Department of  Pensions  & Pensioners’ Welfare has been annexed. It is submitted in the additional affidavit that the pension of Government servants retiring between 1.1.1986 and 30.6.1987 is to be governed in terms of 566 paragraphs 10.1, 10.2 and 11 of the said Office  Memorandum. Further,  it  has  been submitted that  the  petitioner  had ceased  to  be in the employment of the Supreme  Court  with effect  from  1.1.1986  (F.N.) and,  accordingly,  the  said Office  Memorandum  is  not applicable  to  the  petitioner. Paragraph 3.1 of the Office Memorandum provides, inter alia, that the revised provisions as per these orders shall  apply to Government servants who retire/die in harness on or after 1.1.1986.  The  said Office Memorandum will,  therefore,  be applicable  to  Government servants  retiring  on  1.1.1986. There is, therefore, no substance in the contention that the Office Memorandum dated April 14, 1987 will not apply to the petitioner. Be that as it may, we have already held that the petitioner  had  retired with effect from  1.1.1986  and  he comes within the purview of paragraph 17.3 of the  recommen- dations of the Pay Commission.     In  the circumstances, the writ petition is allowed  and the  respondents  are directed to calculate and pay  to  the petitioner  within  three months from today his  pension  in accordance with the recommendation of the Pay Commission  as contained  in  paragraph 17.3 extracted above.  There  will, however, be no order as to costs. P.S.S.                                 Petition allowed. ? 567