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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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