http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4

PETITIONER:

THE STATE OF PUNJAB

Vs.

RESPONDENT:

JUSTICE .S. DEWAN(RETIRED CHIEF JUSTICE) & ORS.

DATE OF JUDGMENT: 25/04/1997

BENCH:

K. RAMASWAMY, G.T. NANAVATI, K.VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:

JU D G ME N T

NANAVATI, J.

The respondent who retired as thechief justice of the

High Court of Punjab and Haryana on 31.12.89 was enrolled as

an advocate on27.1.59, appointed as Districtand Sessions

Judge on 20.11.68 and then as a judge and the Chief Justice

of Punjab and HaryanaHigh Court on 14.12.77 and 4.10.89

respectively. On his retirement he elected for computation

of hispensionunder Part III of the 1st Schedule to the

High Court Judges (Conditions of Service) Act, 1954.

According to the provisions containedin partIII, pension

of thejudge has to be determined in accordance with the

rules of his service. The ruleswhich applied to him are the

punjab Superior Judicial Service Rules, 1963. His pension

was, therefore, fixed in accordance with the said rules. On

20.2.90, Rule 16 of the saidRules was amended by the

Government of Punjab and it was provided thatin caseof a

direct recruitto thePunjab SuperiorJudicial Service the

actual period of practice at the bar not exceeding 10 years

shall be addedto his service qualifying for superannuation

pensionand other retirement benefits. In view ofthis

amendment the respondent claimed that being a direct recruit

to thePunjab Superior Judicial Service he was entitled to

addition of actual period of practice at the bar not

exceeding 10 years to his qualifying service and, therefore,

his pension and other retirement benefitshave to be

refixed. TheHigh Court, in its turn, wrote to the

Accountant General on 5.6.90 for refixation of his pension

and other retirement benefitsafter giving him benefit of

the amendment . The AccountantGeneral, it appears, was not

inclined to agree with this claim and, therefore, referred

the matter to the State Government for correct

interpretation of the rule. On25.2.91the State Government

decided thatthe notification dated 22.2.90 hasonly

prospective effect and, therefore, benefit of the amended

Rule 16 cannotbe given to the respondent. He, therefore,

filed a writ petitionin the High Court interalia praying

that the Union of Indiaand theState Government be directed

to givebenefitof the amended Rule 16 to him and to compute

his pension afresh inaccordance with the said provision.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4

The stand taken by the Unionof India was that it was not

really concerned with the subject-matter of thepetition and

that it pertained to the State of Punjab. The State

contended thatthe amended rule applies to those only who

retiredafter 22.2.90.

The learned singleJudge followingthe judgment ofthis

Court in D.S. Nakara and others Vs. Union of India 1983 (1)

SCC 305 held that allretired judgesirrespective of the

date of retirement constituteone class and the benefits

available under the amended rule cannot be confined to the

judges who retired after the amendment.He, therefore, found

the action of the state of Punjab asillegal, allowed the

petition and directed the State of Punjab to refix pension

of therespondent in accordance with the amended rulewith

effect from 22.2.90 and to paythe arrears with interest at

the rate of 18 per centper annum. The State ofPunjab filed

a letters patent appeal. The Division Bench of theHigh

Court dismissed it with a clarification that the prayer

being restricted only to pension and not to other retirement

benefits, the order passed by the learned Single Judge

should be readas confined to grant of pension only. The

State has, therefore, filed this appeal.

The only controversy in this appeal is whether theHigh

Court was right in directing refixation of pension of the

respondent in accordance with amended Rule 16. The

respondent, having retired asa judge of a High Court and

having electedto receive pension payable under part III of

the First Schedule to the Act his below:-

"16. Death-cum-retirement

benefits:-In respect of death-cum-

retirementbenefits the members of

the service shallbe governed by

the punjab CivilServices Rules,

Volume IIas amended from time to

time.

Provided thatin the case of a

direct recruit to this service, the

actual period of practice at Bar

not exceeding tenyears,shall be

added to his service qualifying for

superannuation Pension and other

retirementbenefits."

The change brought aboutby the amendment isthat

whereasin respect of death-cum-retirement benefits members

of the Punjab Superior Judicil Service were earlier governed

by theAll India Service (death-cum-retirement benefits)

Rules, now they are governed by the Punjab Civil Service

Rules, Moreover, now in the case of a direct recruit to the

added to hes service for thepurposeof determining the

qualifying service. Formerly, that is, prior to 22.2.1990,

qualifying service ofa member of the Punjab Superior

judicial Service and also as a judge of the High Court, if

he waselevated to that position before retirement. Even in

case ofa direct recruit to that Service his standing at the

Bar was irrelvant butnow that period has tobe added for

determining the qualifyingservice. Obviously,this

enlargement ofthe Period of qualifying service wouldlead

to an Increasein thequantum of pension. This hasbeen

regarded by the High Court and as contended by the

respondent, liberalisation of the pension scheme. Forthat

reason,it further held that benefit of a ruleliberalising

pension cannot berestricted to persons retiring

subsequently that is after the date of such liberalisation

otherwise itwould amountto vicious discrimination

violative of Article 14 of theconstitution. The High Court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4

has also held that there is nothing in the language of the

Rule tosuggestthat the benefit conferred by it is confined

to the persons retiringafter February 22,1990.

Therefore,what we have to consider is: What is the

nature of the change made by the amendment? Isit by way of

upwardrevision of the existing pension scheme?Then

obviously the ratio of the decision in D.S. Nakara'scase

would apply. If it is held to be a newretiralbenefitor a

new scheme then the benefit of it cannot beextended to

those who retired earlier.

Conceptually, pension is a rewardfor past service. It

is determined on the basis of length ofserviceand last pay

drawn. Length of service is determinative of eligibility and

the quantum ofpension. The formula adopted for determining

last average emoluments drawnhas an impact on the quantum

of Pension. InD.S. Nakara's case (supra) the change in the

formulaof determiningaverage emoluments byreducing 36

months'serviceto 10 months' service as measure of pension,

made with a view to giving a higher average, was regarded as

liberalisation or upward revision of the existing pension

scheme,On thebasis of the same reasoning it may besaid

that any modification with respect to the other

determinative factor, namely, qualifying service made with a

view to make it more beneficial in terms of quantum of

pensioncan also be regarded as liberalisation or upward

revision of the existing pension scheme. If,however, the

change is not confinedto the period of service but extends

or relates to a period anterior to the joining of service

then it would assume adifferent character. Then it is not

liberalisation of the existing scheme but introductionof a

new retiral benefit. What has been done by amending Rule 16

is to make the periodof practice at the Bar, which was

otherwise irrelevant for determining the qualifying service,

also relevant for that purpose. It is a new concept and a

new retiral benefit. The object of the amendment does not

appear to be togo for liberalisation. The purpose for which

it appears to have been made is to make it more attractive

for those who are already inserviceso thatthey may not

leave it and for new entrants so that they may be tempted to

join it. ThoughRule 16does not specifically state that the

amendedrule will apply only to those who retired after

22.2.90, the intentionbehindit clearly appears to be to

extend the newbenefitto those only who retired afterthat

date. For these reasons the principle laid down inD.S.

Nakara's case (supra)that if pensioners form a class

computation oftheir pension cannot beby different formula

affording unequal treatment merely onthe ground thatsome

retired earlier and some retired later, will have no

application toa caseof thistype. Therefore, on both the

groundsthe High Court was in error in applyingthe ratio of

the decision in D.S. Nakara's case (supra) to this case. As

rightlycontended on behalf of the State, benefit of the

amendment would be available to only those direct recruits

who retired after it has come into force.

The following observations made by this court in Union

of India Vs. P.N. Menon 1994(4) SCC 68 also to some extent

supportthe view that we are taking:

"Wheneverthe Government or an

authority,which can be held to be

aStatewithinthe meaning of

Article 12 of the Constitution,

frames a scheme for persons who

have superannuated fromservice,

due to many constraints, it is not

always possible to extendthe same

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4

benefitsto one and all,

irrespective ofthe dates of

superannuation. Assuch any revised

scheme in respect of post-

retirementbenefits, if implemented

with a cut-off date, which can be

held to be reasonable andrational

inthe light of Article 14 of the

Constitution, need not be held to

beinvalid. It shall not amount to

"picking out a date from the hat",

aswas said by this Court in the

case of D.R. Nim V. Unionof India

in connection with fixation of

Seniority. Whenever arevision

takes place, a cut-off date becomes

imperativebecause the benefit has

tobe allowed within the financial

resources available with the

Government."

We, therefore, allow this appeal, set aside the

judgment and order passed by the High Court and dismiss the

writ petition filed by the respondents.In viewof the facts

and circumstances of the case there shall be no order as to

costs.