REPORTABLE

IN THE SUPREME COURT  OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 523 OF 2005

Union of India & Ors. ….. Appellants

Versus

V.D. Dubey (dead) by Lrs. ….. Respondent

WITH

(Civil Appeal Nos. 1024/2005 & 1025/2005)

J U D G M E N T  

K.S. Radhakrishnan, J.

1. The question that arises for consideration in these cases is whether  

the Rule 2423-A of the Indian Railway Establishment Code as amended, which  

provides  for  adding  certain  period  of  service,  to  the  qualifying  service  for  

superannuation pension, would be available to those who retire from service after  

31st March, 1960, irrespective of the fact whether the recruitment rules at the time  

of their appointment had  contained such a specific provision or not.

2. The  Railway  Administration  took  up  the  stand  that  only  if  the  

recruitment  rules  conferred  such  a  provision  the  benefit  of  added  years  of  

service, for superannuation pension, would be available.  The High Court in all  

these cases took a consistent view that what is relevant is the date of retirement,  

not the date of entry in service.  

3. Rule 2423-A  as it originally stood, stated that an officer appointed to  

his service or post on or after 1st April, 1960 was eligible to add to his service  

qualifying for superannuation pension, the actual period not exceeding 1/4th of  

the  length  of  his  service  or  actual  period  by  which  his  age  at  the  time  of  

recruitment  exceeded  25  years  or  a  period  of  five  years  whichever  is  less  

provided  the  post  held  by  him  is  one  for  which  post  graduate  research  or  

specialized qualification or experience in scientific technological or professional  

field  is  essential   and to  which  candidate of  more than 25 years  of  age are  

normally recruited.  Rule was again amended on 15.11.1976 adding a proviso  

stating that the concession shall be admissible only if  the recruitment rules in  

respect of a service/post contain such a provision.  Rule was again amended  

stating that the benefit of added years of service under Rule 2423-A/R-II would  

be admissible to all those who retire from service or posts after 31.3.1960 and  

who were otherwise eligible under Rule 2423-A/R-II which was made effective  

from 28th October, 1997.  

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4. In Civil Appeal No. 523 of 2005, the respondent joined service on  

4.8.1959 as Court Inspector in the Western Railway and he retired from service  

on superannuation as Deputy Chief Vigilance Officer from Central Railway on  

31.12.1989.  The respondent claimed the benefit of added years of service, the  

same  was,  however,  denied  to  him.   The  reason  for  denial  was  that  the  

recruitment rules did not contain such a provision. Further it was also stand of the  

Railway Administration that the recruitment rules of law inspector were amended  

only in the year 2000 and the provision in respect of  addition of  service was  

effected only then by the time the respondent had retired from service and hence  

he would not get benefit of Rule 2423-A/R-II.

5. Aggrieved  by  the  stand  taken  by the  Railway  Administration,  the  

respondent approached the Central Administrative Tribunal, Bombay Bench filing  

O.A.  No.  473/2002.   The  Tribunal  allowed  the  application  and  directed  the  

Railway Administration to fix the pension of the respondent adding to his service,  

the period by which the respondent at the time of recruitment exceeded 25 years  

of service or a period of five years whichever is less for the purpose of calculating  

the pension.  The Railway Administration took up the matter in appeal before the  

Bombay High Court.  The High Court endorsed the view taken by the  Tribunal  

and reiterated  that in view of the provisions contained in Rule 2301 of the Indian  

Establishment  Code,  the  pensionable  Railway  servants  claims  to  pension  is  

regulated by Rules enforced at the time when he resigns or is discharged from  

service  from the Government.   The Bench also noticed that  Rule  2423 as it  

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originally stood was found incongruous and consequently it  was amended on  

4.12.1987, whereby it was decided the benefit of added years of service under  

the Rule 2423-A/R-II was made admissible to all those who retire from service or  

posts after 31st March, 1960 and who are otherwise eligible under Rule 2423-

A/R-II.  It  was,  therefore,  held that the Rule as stood after modification is that  

those who retire from service or posts after 31.3.1960 would get the benefit of  

adding  to  their  service  the  period  as  may  be  admissible  for  calculation  of  

pension.

6. In Civil Appeal No. 1024 of 2005, the respondent joined Railways as  

Assistant Surgeon on 23.10.1942 after having crossed the age of 25 years. While  

in service he took his master degree in general surgery.  On 2.1.1959 he was  

appointed  as  D.M.O.  Class-I  Medical  Officer  through  Union  Public  Service  

Commission and the respondent rejoined service in Central Railway. Respondent  

also claimed the benefit of the Rules which we have referred to in the earlier part  

of  the judgment.   The same was denied,  hence, he approached the Central  

Administrative Tribunal which has rejected his application.  The respondent took  

up the matter in appeal with the Division Bench of the Bombay High Court and  

the appeal was allowed holding that the respondent is entitled to the benefit of  

Rule 2423-A as amended and the Railway Administration was directed to give  

the benefit  of  added years of  service,  for  reckoning the qualifying service for  

pension.  

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7. In Civil Appeal No. 1025 of 2005, the first respondent joined service  

in the Indian Railway Medical Service on 26.10.1958 and the second respondent  

in November, 1957.  Both respondents while in service had acquired their post  

graduate  qualifications.   The  first  respondent  retired  from  service  on  

superannuation  on  1.9.1979  and  the  second  respondent  retired  on  

superannuation on 11.9.1986.  Since both the respondents retired from services  

after 31.3.1960 they claimed the benefit of Rule 2423-A by adding certain years  

of  qualifying years of  service for  pension.  Since the same was denied,  they  

approached the Tribunal but  the Tribunal  dismissed their  applications.  They  

took up the matter before the Bombay High Court.  The Division Bench of the  

Bombay High Court allowed their appeals by placing reliance on the judgment in  

writ petition No. 594 of 2003 (against which CA No.1024/05 has been filed before  

this Court) and gave a direction to the Railway Administration to give benefit to  

the respondents as per Rule 2423-A of the Indian Railway Establishment Rules.

8. Learned Additional Solicitor General submitted the Rule 2423-A/R-II  

as amended in the year 1976 provided that the benefit of added years of service  

can only be granted to whom if  the recruitment  Rules confers such a benefit  

when  a  person  is  appointed.   Learned  senior  counsel  submitted  that  the  

respondents  were  appointed  in  service  when  the  recruitment  rules  did  not  

provide such a provision.   Learned counsel also submitted that for the first time  

the provisions were made in the year 2000 for granting benefit of added years of  

service vide letter dated 10.11.2000 and prior to that the Law Assistants were not  

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entitled to such benefits.  Learned counsel further submitted that the respondent  

retired in the year 1989 by which time amended provision of  Rule 2423-A of  

Indian Railway Establishment Code which came into existence on 15.11.1976  

was  in  force  and  at  that  time recruitment  Rules  for  the  Court  Inspector/Law  

Assistant  did  not  contain  the  specific  provision  regarding  the  admissibility  of  

addition to the qualifying service of pensionary benefits.  Similar was a contention  

raised in respect of other two cases also.

9. Learned senior counsel appearing for the respondents on the other  

hand placed heavy reliance on the Rule 2301 on the Railway Pension Rules and  

submitted that pensionable Railway Servants Claim is regulated by the Rules in  

force  and at  the time when  a Railway  servant  resigns or  is  discharged from  

service. Learned senior counsel also fully endorsed the view expressed by the  

Division Bench of the Bombay High Court for interpretation of Rule 2423-A and  

submitted if the interpretation given by the learned Additional Solicitor General is  

accepted then the very object and purpose of the amendment of Rule 2423-A  

would be defeated.   

10. We have already referred to the relevant provisions in the earlier  

part of the judgment. Looking at the various amendments effected to Rule 2423-

A, we are clearly of the view that the benefit of adding certain years of service  

under Rule 2423-A is intended to be given to all those officers who retire from  

service after 31st March, 1960 which is more clear when we look at Rule 2301 of  

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the Railway Pension Rules which says a pensionable Railway servant’s claim to  

pension is regulated by Rules in force at the time when he resigns or discharged  

from the service.  

11. Persons  who  retire  from service  after  31.3.1960  form a  class  by  

themselves  irrespective  of  their  entry  in  service.   Further  classification  or  

differentiation  among them was  never  intended by Rule  2423-A as amended  

from time to time read with Rule 2301 of the Railway Pension Rules.  Rule 2423-

A IREC as amended therefore, in our view, would apply to those categories of  

employees who have retired from service after  31.3.1960 for adding requisite  

number  of  years  to  their  qualifying  service,  so  as  to  claim  the  pensionary  

benefits.  The scope of the proviso of Rule 2423-A of REM Vol. II came up for  

consideration before this Court in Secretary (Estt) Railway Board and Another v.  

D.  Francis  Paul  and  others,  (1996)  10  SCC  134  and  this  Court  held  that  

amendment  cannot  have  retrospective  effect  in  respect  of  person  already  in  

service but would be prospective; it would be applicable only to those candidates  

appointed after the date of the amendment introducing the proviso.  Therefore  

the  provision  which  states  that  the  concession  be  admissible  only  if  the  

recruitment rule provides so, would operate only prospectively. We fully endorse  

this view.  

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12. Civil Appeals are, accordingly, dismissed with the directions to the  

Appellants  to calculate the pensionary benefits and disburse the same to the  

respondents at the earliest.

…..……………………..J. ( J.M. Panchal)

…..……………………..J. ( K.S. Radhakrishnan)

New Delhi December 8, 2009

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