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CASE NO.: Appeal (civil) 5346  of  1997

PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: DR. VIJAYAPURAPU SUBBAYAMMA

DATE OF JUDGMENT:       22/09/2000

BENCH: V.N.Khare & S.N.Phukan

JUDGMENT:

KHARE, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   The  respondent herein, was appointed as a Lady  Medical Officer  in the Family Welfare Centre, Vishakhapatnam  under the  control of Commanding-in-Chief, Eastern Naval  Command, Vishaphapatnam  on  22.9.1968.  Subsequently, she  was  made quasi-permanent with effect from 31.3.1972 by an order dated 15.10.1974.   On  13.11.1980,  the respondent  retired  from service   on  attaining  the   age  of  superannuation.   On retirement,  the respondent was given the terminal and other benefits  under Central Civil Services (Temporary)  Services Rules,  1965.  The respondent was also given insurance money along  with  other benefits, as admissible to her.   At  the time  when the respondent retired she had not completed  the requisite  qualified service of twenty years for entitlement of  pension.   She was informed that as she had not  put  in required  number  of length of service, she is not  entitled any  pension.  Subsequently, the Fourth Pay Commission  made recommendation that for entitlement of pro rata pension, the length of service be reduced from twenty years to ten years. The  said  recommendation was accepted by the Government  of India  and  came into force with effect from 1.1.1986.   The respondent, after the Pay Commission Report came into force, made  a representation that since the length of service  for entitlement to pension has been reduced from twenty years to ten  years  as per recommendations of Fourth Pay  Commission and as she had put in only twelve years, two months and nine days’ length of service, she is entitled to pro rata pension with  effect  from  1.1.1986.   The  representation  of  the respondent  was  considered and it was found that  when  the respondent  retired,  the  requirement for  entitlement  for pension  was that the retiree must have put in twenty  years of  service and since she retired prior to 1.1.1986, she was not  entitled  to  pension.  Under such  circumstances,  the respondent  in  the  year  1996 filed an  O.A.   before  the Central  Administrative  Tribunal,   Hyderabad  (hereinafter referred  to  as  the  "Tribunal")   for  direction  to  the appellants  herein, to grant pro rata pension in view of the recommendations  of  the Fourth Pay Commission  with  effect from 1.1.1986.

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   The  Tribunal  relying  a  decision  of  this  Court  in M.C.Dhingra  vs.  Union of India, 1996 (7) SCC 564 held that even  though the respondent retired much prior to  1.1.1986, the payment of pro rata pension cannot be denied to her with effect  from  1.1.1986.  According to the Tribunal,  such  a denial would be arbitrary and violation of Article 14 of the Constitution.   The  Tribunal further relying  upon  another decision  in  T.   S.    Thiruverngadam  vs.   Secretary  to Government  of  India & ors.  1993 2 SCC 174, held that  any benefit  conferred by the Government is not prospective, but will  have  a retrospective effect and such benefit will  be available  to even those who have retired prior to  1.1.1986 and in that view of the matter the Tribunal allowed the O.A. filed  by the respondent with a direction to the  appellants herein  to grant pro rata pension with effect from one  year prior  to  filing of the O.A.  It is against  the  aforesaid judgment of the Tribunal the appellants are in appeal before us.

   Learned counsel for the appellant urged that in the year 1980  when  the respondent retired from service she was  not@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ eligible  for  grant of liberalized pension in view  of  the fact that she had not put in 20 years of service.  The grant of  pro  rata pension on completing ten years  of  qualified service for pension was introduced for the first time by the recommendation of the Fourth Pay Commission with effect from 1.1.1986  and, therefore, the said recommendation cannot  be made  applicable with retrospective effect.  Learned counsel pointed  out  that  the present case stands covered  by  the decision  of  this  Court  in  the  case  of  V.Kasturi  vs. Managing  Director, State Bank of India, Bombay and  another (1998)  8  SCC  30.  Learned counsel also pointed  out  that decisions  relied upon by the Tribunal in allowing the  O.A. filed  by  the respondent were distinguished in  V.Kasturi’s case (supra).  Learned counsel also referred to decisions of this  Court in Commander Head Quarter, Calcutta & ors.   vs. Capt.   Biplabendra Chanda (1997) 1 SCC 208, Union of  India and  ors.   vs.  Lieut (Mrs.) E.Iacats (1997) 7 SCC 334  and T.N.Electricity  Board  vs.  R.Veerasamy and ors.  (1999)  3 SCC 414 in support of his argument.

   In  the case of V.Kasturi (supra), the appellant  joined the  State  Bank of India as an Officer.   After  completing twenty  years,  but without completing twenty five years  of pensionable  service,  he  resigned on 31.7.1984  which  was treated  as voluntary retirement and, therefore, he was  not given  any pension as he had not put in twenty five years of service.   With  effect from 20.9.1986, rule 22  (1)(c)  was substituted by a new rule 21(1)(c) which provided pension to en  employee  retiring  on  completion of  twenty  years  of service.   The  appellant  in   the  said  case,  therefore, contended that he was entitled to pension under new rule and the  denial of pension to him was violative of Article 14 of the Constitution.  This Court held as under:

   "  However, if an employee at the time of his retirement is  not eligible for earning pension and stands outside  the class  of  pensioners, and subsequently by amendment of  the relevant  pension  rules any beneficial umbrella of  pension scheme is extended to cover a new class of pensioners and by then  the erstwhile non- pensioner might have survived, then only  if such extension of pension scheme to erstwhile  non- pensioners   is   expressly  made   retrospective   by   the

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authorities   promulgating  such   scheme;   the   erstwhile non-pensioner  who  has retired prior to the advent of  such extended  pension  scheme  can claim benefit of such  a  new extended   pension  scheme.   If  such   a  new  scheme   is prospective only, old retirees non-pensioners cannot get the benefit  of  such  a scheme even if they  survive  such  new scheme.  They will remain outside its sweep."

   This  Court in Commander Head Quarter, Calcutta and ors. vs.   Capt.   Biplabendra Chanda (1997) 1 SCC 208,  held  as under:

   "The  new  and revised Rules which came into force  with effect  from  1.1.1986 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  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.  This cannot be."

   This  Court in Union of India and ors.  vs.  Lieut (Mrs. E.Iacats (1997) 7 SCC 334 held as under:

   "The  terms and conditions of service were known to  the respondent  at the time she joined the service.  She at that time  had  signed  an agreement to abide by  the  rules  and regulations  governing Military Nursing Service (Local) from time to time.  She cannot claim the benefit of a liberalized pensionary  scheme  which  came into operation from  a  date subsequent to the date of her retirement.."

   The  conspectus of legal position that emerges from  the aforesaid decisions are these:

   a)  Where an employee under the terms and conditions  of service  or under the relevant rules relating to pension  is not  eligible to earn pension on his or her retirement,  any amendment  to  the rules covering a new class  of  pensioner would not confer pensionary benefits to the employee who has retired  prior  to  coming into force of such  amendment  of Rules..

   b)  However, the position would be different if such  an amendment   in   the   relevant   pension  rules   is   with retrospective  effect  as to cover a new class  of  employee including  those  employees who, at the relevant time,  were not  entitled to earn pension under the then existing  rules or conditions of service.

   c)  Where  an  employee  at the time  of  retirement  is entitled to pension under the relevant rules, any subsequent amendment  to  the  relevant   rules  enhancing  pension  or conferring  additional  benefit would be also applicable  to him..

   Applying  the  aforesaid principles what we find in  the present  case  is that the respondent retired on  13.11.1980 and  under the then relevant rules, an employee who has  put in  less  than  twenty years of qualifying service  was  not eligible  to  earn  pension.   At that  point  of  time  the

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respondent  had  put  in  only twelve  years  of  qualifying service and, therefore, was not entitled to earn the pension on  her  retirement.  The recommendations of the Fourth  Pay Commission  were enforced with effect from 1.1.1986  whereby the  requirement  of qualifying service to earn pension  was reduced  to  ten  years  from twenty  years.   By  the  said recommendations  a new class of pensioner was created.   But the  said  recommendations  of the Pay Commission  were  not enforced  with  effect from 13.11.1980 - the date  when  the respondent retired but with effect from 1.1.1986.  Thus, the recommendations  of the Fourth Pay Commission not being with retrospective  effect,  the respondent was not  entitled  to receive  pension  under the said recommendations which  came into effect from 1.1.1986.

   Learned  counsel for the respondent strongly relied upon the decision of T.S.Thiruvengadam vs Secretary to Government of  India & ors (supra) and M.C.Dhingra vs.  Union of  India (supra)  for the contention that once qualifying service  to earn  pension was reduced from twenty years to ten years the respondent  became eligible to receive liberalised  pension. In  the case of Thruvengadam (supra), the concerned employee who has already having pensionary benefits in the service of the  Central  Government,  was subsequently appointed  in  a Public Sector Undertaking.  After the concerned employee was absorbed  in Public Sector Undertaking the Government issued a memorandum conferring pensionary benefits to the employees of  Public  Sector Undertaking.  The question arose  whether the pensionary benefits were also available to those who had already  been  absorbed  in  the service  of  Public  Sector Undertaking  prior  to coming into force of the  memorandum. This  Court, in view of the facts and circumstances of  that case held as under:

   "The object of bringing into existence the revised terms and  conditions in the memorandum dated June 16, 1967 was to protect the pensionary benefits which the Central Government servants  had earned before their absorption into the public undertakings.   Restricting the applicability of the revised memorandum  only to those who are absorbed after the  coming into  force  of the said memorandum, would be defeating  the very  object  and  purpose  of the  revised  memorandum  and contrary to fair pay and justice."

   In  M.C.   Dhingra  vs.  Union of India,  the  concerned employee  who was in the State service joined the service of Central  Government.   The question arose as to whether  the past  service rendered in the State service by the  employee could  be taken into consideration for computing the quantum of  pension  payable  to him.  It was held  that  since  the concerned  employee was already a pensioner and,  therefore, any  additional  benefit for computation of pension  on  the basis  of  subsequent  circular was available to  him.   The decisions   in  the  cases  of  T.S.   Thiruvenrngadam   and M.C.Dhingra  are  distinguishable and are not applicable  to the  facts  of this case.  The decisions in M.C.   Dhingra’s case  as  well as in T.S.  Thiruvenrngadam’s case were  also considered in V.  Kasturi’s case and were distinguished.  We accordingly  hold  that the respondent was not  eligible  to earn  liberalised pension in pursuance of recommendations of Fourth Pay Commission.

   For  the  aforesaid  reasons,  the  appeal  deserves  to

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succeed.   Consequently, the judgment of the tribunal  under appeal  is set aside and the appeal is allowed.  There shall be no order as to costs.