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PETITIONER: STATE OF U.P. & ANR.

       Vs.

RESPONDENT: JOGENDRA SINGH & ANR.

DATE OF JUDGMENT:       28/11/1997

BENCH: SUJATA V. MANOHAR, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT:                THE 28TH DAY OF NOVEMBER, 1997 Present:            Hon’ble Mrs. Justice Sujata V.Manohar            Hon’ble Mr. Justice M. Jagannadha Rao K.S. Chauhan, (K.P. Singh) Adv. for R.B. Misha, Adv. for the appellant Goodwill Indeevar, Adv. for the Respondents.                       J U D G M E N T      The following Judgment of the Court was delivered: Mrs. Sujata V. Manohar. J      At the  material time,  respondent no.1 was holding the post of Senior Prosecuting Officer, Agra.  The date of birth of respondent  no.1 was 20.10.1919.  In the ordinary course, he would have retired on superannuation on attaining the age of 58 years on 20th of October, 1977.  The first respondent, however,  took  voluntary  retirement  after  completion  of thirty one  and a  half years  of service  on 12th of April, 1976.   He has  been granted  retirement benefits  including pension and  gratuity accordingly.    Respondent  no.1  took voluntary retirement  under the  provisions Fundamental Rule 56 of  Uttar Pradesh  Fundamental Rules.   Under Rule 56(c), "the Government  servant may  by notice  to  the  appointing authority voluntarily retire at any time after attaining the age of 45 years of after he has completed qualifying service of 20  years." By  the Uttar  Pradesh  Fundamental  Rule  56 (Amendment Act),  1976, certain amendments were made to Rule 56.  Under one such amendment, sub-clause (e) of Rule 56 was amended by adding a proviso. Original Fundamental Rule 56(e) provided as follows:      "56(e): A retiring pension shall be      payable   and    other   retirement      benefits,   if    any,   shall   be      available  in  accordance  with  an      subject to  the  provision  of  the      relevant rules  to every Government      servant who  retires or is required      or allowed  to  retire  under  this      rule".      The proviso which was added was as follows:      "Provided that  where a  Government

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    servant voluntarily  retires or  is      allowed voluntarily to retire under      this rule  the appointing authority      may allow  him, for the purposes of      pension and  gratuity, if  any, the      benefit of  additional  service  of      five years  or of such period as he      would  have   served  if   he   had      continued till the ordinary date of      his  superannuation,  whichever  be      less;"      The Amending  Act is  of 18.11.1976.    Therefore,  the proviso came into effect on 18.11.1976.      The first  respondent contends  that  although  he  had retired at  a time  when the proviso was not incorporated in the Fundamental Rules, he should be given the benefit of the proviso and  an additional  service of  one and a half years should be  counted for  the  purposes  of  his  pension  and gratuity.   He filed in February, 1989, about 13 years after the amendment,  a Writ  petition in  the High Court claiming the benefit  of the  proviso to Fundamental Rule 46(e).  His writ petition  has been  allowed by the High Court and hence the present  appeal has been filed before us by the State of U.P.      The claim  of respondent  no.1 has  been allowed by the High Court on the basis of the ratio of the decision of this court in  D.S. Nakara & Ors. v. Union of India [(1983) 1 SCC 305].   The ratio  in Nakara’s case (supra), however, is not applicable in the present case.  In Nakara’s case (supra), a specific  cut-off   date  was  provided  for  the  grant  of pensionary benefits.   Those  who had  retired prior to that date were  not given  the benefits.  This was  considered as arbitrary in  the facts  and  circumstances  of  that  case. There is no question of any cut-off date being prescribed in the present  case.  The first respondent was governed by the Uttar Pradesh  Fundamental rules.   On the date when he took voluntary  retirement   and  left   service,  he  was  given retirement benefits  on the  basis of  the Fundamental Rules and other  provisions which were then in force.  Fundamental rule 56  has been subsequently amended by an amendment which came into  force on  18th  of  November,  1976  because  the amendment inserting  the proviso came on the statute book on that date.   It  will, therefore, be applicable to all those who  take   voluntary  retirement   after  the  proviso  was inserted.   All laws,  in this sense, are prospective unless they are made retrospective either expressly or by necessary implication.   The Amending  Act did  not make the amendment retrospective.   Therefore, persons  who retired  at a  time when the  proviso was  not on  the statute book cannot claim the benefit  of the  proviso.   The first  respondent having retired prior to the insertion of the proviso in Fundamental Rule 56(e), cannot claim the benefit of the proviso.      The appeal  is, therefore,  allowed  and  the  impugned order of  the High Court is set aside.  However, at the time when special leave was granted in the present appeal, it was limited to  the question whether an employee who had retired before the  introduction of the proviso would be entitled to the benefit  of that  proviso for the purpose of computation of pension  or gratuity.   This court had made it clear that in the  case of the respondent, the court did not propose to interfere with  the order granting any benefit to him of the impugned order in view of the special facts of the case.  We order accordingly. There will be no order as to costs.

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