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PETITIONER:

K. L. RATHEE

Vs.

RESPONDENT:

UNION OF INDIA & ORS.

DATE OF JUDGMENT: 07/07/1997

BENCH:

S.C. AGRAWAL, SUHAS C. SEN.

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

SEN. J.

On 1.5.1968 the petitioner retired from Government

service as Secretary, Industrial Licensing Policy Inquiry

Committee and Joint Secretary to the Government of India in

the Ministry of Industrial Development and Company Affairs,

New Delhi. The petitioner got pension and other retirement

benefits according to the Government rules in force at that

time. On 25.5.1979 the Government of India introduced

Liberalised Pension Formula. The main feature of this

Formula was that it introduced revised method of calculation

of pension based on slab system and raised monthly pension

to Rs.150O/- per month. The benefit of the Liberalised

pension Formula, 1979 was made available only to those

Government servants who retired on or after 31.3.1979. A

Writ Petition was filed in this Court challenging the

fixation of the cut-off date of 31.3.1979 for payment of

Liberalised pension. It was claimed that irrespective of

the date of retirement the benefit of the Liberalised

Pension Formula must be made available to all the pensioners

governed by 1972 Rules will be governed by this Liberalised

scheme of pension irrespective of the date of their

retirement. In that case, D. S. Nakara & Ors. vs. Union of

India & Ors., 1983 (2) SCR 165 it was argued on behalf of

the petitioners that all petitioners entitled to receive

pension under the relevant rules formed a class irrespective

of the date of their retirement. There could not be a mini

classification within this class. The classification based

on retirement before or subsequent to the specified date was

invalid. The scheme of liberalisation in computation of

pension must be uniformly enforced with regard to all

pensioners.

On the basis of the judgment of this Court on

22.10.1983 the Government issued orders extending the

benefit of the judgment to all pensioners covered by CCS

(Pension Rules) as well as Liberalised Pension Rules 1950.

After promulgation of the Order dated 22.10.1983 doubts

arose regarding the extent of the benefit of various

liberalisations made from time to time in Pension Rules. It

was clarified by the Government that only the benefit of

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this liberalisation should be allowed to all pensioners as

had been mentioned in the Government Orders dated

22.10.1983. In all other respects the rules, prevalent on

the date of retirement of the pensioners, will apply.

According to the clarification issued by the Ministry of

Finances the revised pension is to be computed on the

average emoluments drawn during the last 10 months of

service. This rule will apply to all the pensioners. However

the definition of emoluments as in force at the time of the

retirement of an employee has not undergone any change. The

case of the petitioner is that following Nakara's case he

has to be given the same amount of pension as other

employees of his rank irrespective of the date of

retirement.

The case of the petitioner is that the judgment in

leaves no room for doubt that there should be no

discrimination among the persons getting pension from the

Government. There cannot be any classification among the

retired Government employees on the basis of date of

retirement. Therefore they must be given higher pension on

the same basis as it was being given to persons who have

retired after 1st April, 1979.

We are unable to uphold this contention. Nakara's Case

(supra) dealt with the manner of calculation. of pension on

the basis Of average emoluments of a retired Government

employee. Prior to the liberalisation of the formula for

computation of pension made by the memorandum dated 25th

May, 1979, average emoluments of the last thirty months of

service of the employee provided the basis for calculation

of pension. The 1979 memorandum provided that average

emoluments must be calculated on the basis of the emoluments

received by a Government servant during the last ten months

of the service. That apart, a new slab system for

computation of pension was introduced and the ceiling on

pension was raised. As a result of these changes, the

pensioners who retired prior to the specified date suffered

triple jeopardy, viz., lower average emoluments, absence of

slab system and the lower ceiling. This Court struck down

the provision including the memorandum which provided that:

"the new rates of pension are

effective from 1st April, 1979 and

will be applicable to all service

officers who became/become non

effective on or after that date."

The Court further held:

"Omitting the unconstitutional part

it is declared that all pensioners

governed by the 1972 Rules and Army

Pension Regulations shall be

entitled to pension as computed

under the liberalised pension

scheme from the specified date,

irrespective of the date of

retirement. Arrears of pension

prior to the specified date as per

fresh computation is not

admissible"

It is to be seen that the judgment did not strike down

the definition of 'emoluments'. It merely held That if

pension was to be calculated on the basis of the last ten

months' emoluments of a Government servant, after 1.4.1979,

there is no reason why those who have retired before

1.4.1979 should get pension calculated on the basis of

average of last thirty six months' emoluments. In other

words, the rule of computation must be the same. This Court

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did not held that those who have retired before 1.4.1979

must be treated as having the same emoluments as those who

retired on or after 1.4.1979 for the purpose of calculation

of pension. Therefore, on the strength (supra), the

petitioner is not entitled to ask for computation of pension

with reference to emoluments which he never got. Rule 5(1)

of CCS (Pension) Rules, 1972 provides:

"5/1) Any claim to pension or

family pension shall be regulated

by the provisions of these rules in

force at the time when a Government

servant retires or is retired or is

discharged or is allowed to resign

from service or dies, as the case

may be."

The average of the last ten months' emoluments must

form the basis for calculation of pension. That means those

who were actually drawing larger emoluments in the last ten

months of their service will get larger amounts of pension.

does not lay down that the same amount of pension must be

paid to persons retiring from Government service

irrespective of the date of retirement. The contention of

the petitioner that there is only one class of Government

employees for the purpose of calculation of pension cannot

be disputed. The Constitution Bench in Nakara's Case has

clearly laid down that there cannot be any mini

classification of Government servants for calculating the

amount of pension payable. That means the same method should

be adopted for calculating pension for all Government

servants. But the question is what should be the quantum of

pension payable to a Government servant? Even if pension is

calculated on the basis of the same formula the basis of

calculation has to be the average of the last ten months'

emoluments. This principle of adopting last ten months'

emoluments as the basis for calculation of pension must be

uniformly applied to all persons drawing pension from the

Central Government. This was all that was laid down in

Nakara's case. It, however, did not lay down that the

quantum of emoluments drawn during the last ten months of

service of each Government employee must be taken to be the

same for this purpose.

This aspect of the question was examined in the case of

Indian Ex Services Leaque and ors. etc. v. Union of India

and Ors.etc., (1991) 1 SCR 158. The case was argued on

behalf of Armed Forces personnel retiring from commissioned

ranks as well as Armed Forces personnel retiring from below

the commissioned rank who were represented by Shri

K.L.Rathee. J.S. Verma J. (As His Lordship, then was)

speaking for the Constitution Bench which heard the matter

observed that the contention of the writ petitioners on the

basis of Nakara decision was untenable. On behalf of the

petitioners, it had been contended that all retirees who

held the same ranks irrespective of their date of retirement

must be given the same amount of pension. In effect, what

was urged was that there must be "one rank one pension" for

all the retirees irrespective of their date of retirement.

This contention of the petitioners was rejected by the

Constitution Bench by holding that Nakara's decision was of

limited application. There was no scope for enlarging the

ambit of that decision to cover all claims made by the

petitioners for identical amount of pension to every retired

person from the same rank irrespective of the date of

retirement, even though the reckonable emoluments for the

purpose of computation of pension were different.

In fact, the principle laid down in the case of Indian

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Ex-services League & Ors, (supra) negates the case of the

petitioner in the instant case. Nakara's case does not lay

down that the last ten months emolument must be deemed to be

the same for all the employees at the time of their

retirement. The Government rules in force at the time of

retirement of the employees. But if the principle of average

of last ten months' emoluments has been adopted for some

employees, then that Principle must be extended to all the

employees who have retired before them. Nakara's Case did

not lay down that the reckonable emoluments for the purpose

of calculation of pension must be the same for a person

occupying the same post.

It is also to be noted that the case of Krishena Kumar

v. Union of India and others, AIR 1990 SC 1782, another

Constitution Bench examined the question whether on the

strength of Nakara's Case, petitioners were entitled to the

same Provident Fund benefits as were given to those who

retired subsequent to 31st March, 1979. It was argued on

behalf of the petitioner that state's obligation towards

pensioners was the same as that towards persons who were to

be paid Provident Fund benefits. This Court held that was

not the ratio of Nakara's Case On retirement of an employee

legal obligation under the Provident Fund account ended on

payment of the Provident Fund dues of the employee. The

Rules governing Provident Fund and contribution to such Fund

were entirely different from the rules governing pension.

It was also held in the case of Union of India v. All

India Services, Pensioners' Association and another, AIR

1988 SC 501, that the principles laid down in Nakara's Case

could not be extended to the case of payment of gratuity.

It clearly appears from all these cases that is not a

case of universal Application irrespective of the facts and

circumstances of the case. When the Government decided that

pension was to be calculated on the basis of average salary

drawn over a period of last ten months, it was held in

Nakara, that this principle has to be applied even to those

persons who had retired before the notified date. That.

however, does not mean that the emoluments of the person who

were retiring after the notified date and those who have

retired before the notified date holding the same status

must be treated to be the same. This argument was

specifically negatived by the Constitution Bench in the case

of All India Services Pensioners! Association (supra). What

the petitioner is claiming in this case is more or less the

same relief as was denied to him in the above case.

In view of the aforesaid this writ petition must fail

and is dismissed with no order as to costs.