Full Judgment Text
2006:BHC-AS:9730-DB
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6358 OF 2004
Sindhu Vishwanath Phadake ..
Petitioner.
Vs.
The Principal,
Kendriya Vidyalaya, Pune & Ors. ..
Respondents.
....
Mr. A.G. Toraskar for the Petitioner.
Mr. Suresh Kumar for the Respondents.
...
CORAM: KSHITIJ R. VYAS, C.J. &
DR.D.Y.CHANDRACHUD, J.
th
.
4 May, 2006
ORAL JUDGMENT (Per DR. D.Y. CHANDRACHUD, J.):
1. The Petitioner joined service as a teacher in the Adarsh
st
Vidya Bhavan School on 1 November, 1957 where he worked
th
until 24 June, 1973. The School was taken over by the Kendriya
th
Vidyalaya Sangathan from 25 June, 1973. The Petitioner
st
continued to work until 31 October, 1985 when she attained the
age of superannuation of 60 years. The Petitioner was a
contributory to the Central Provident Fund Scheme. A request was
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2
made by the Petitioner for being allowed to switch over to the
pension scheme. That request was turned down and thereupon
the Petitioner moved the Central Administrative Tribunal. The
Tribunal dismissed the application filed by the Petitioner by its
th
order dated 29 May, 2001 which is impugned in these
proceedings.
2. The Tribunal noted that the pension scheme was made
applicable to the Kendriya Vidyalaya Sangathan by an Office
st
Memorandum dated 1 September, 1988. The Tribunal noted that
st
under the terms thereof all those who had retired on or after 1
January, 1986 were eligible for pension. However, the Office
Memorandum provided that a separate scheme of ex gratia was
being worked out in respect of those CPF retirees who had retired
st
prior to 1 January, 1986. In the circumstances, the Tribunal held
st
that the Petitioner who had retired prior to the cut off date of 1
January, 1986 was not entitled to the benefit of the newly
introduced pension scheme.
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3
3. On behalf of the Petitioner reliance has been placed on the
judgment of the Supreme Court in D.S. Nakara v. Union of India ,
(AIR 1983 SC 130) and to a judgment of a Division Bench of this
Court in Shaila D. Varerkar v. State of Maharashtra (1999 II CLR
282) which followed the judgment of the Supreme Court. Counsel
appearing for the Petitioner urged that there was no rationale in
st
applying the cut off date of 1 January, 1986 and that the Petitioner
should be granted full pensionary benefits.
3A. While considering the submissions which have been urged
on behalf of the Petitioner, it would be necessary to advert to the
st
Office Memorandum dated 1 September, 1988. By this Office
st
Memorandum it is recorded that in the 51 meeting of the Board of
st
Governors of the Kendriya Vidyalaya Sangathan held on 31 May,
1988 a decision was taken to implement mutatis mutandis the
decision taken by the Government of India on the
recommendations of the Fourth Central Pay Commission for
allowing its employees a change over from the Contributory
Provident Fund scheme to the pension scheme. Consequently, it
was decided that persons who join service in the Sangathan on or
::: Downloaded on - 01/04/2024 15:48:02 :::
4
st
after 1 January, 1986 shall be governed only by the GPF cum
pension scheme and will have no option to be governed by the
CPF scheme. However, all CPF beneficiaries who were in service
st
as on 1 January, 1986 and who continued to be in service on the
date of issuance of the Memorandum will be deemed to have come
over to the pension scheme. Such employees, however, were
given an option to continue under the CPF scheme if they so
desired. In so far as the CPF beneficiaries who had retired prior to
st
1 January, 1986 were concerned, clause 5 of the Office
Memorandum stipulated that a proposal to grant ex gratia payment
to such persons was separately under consideration and orders in
th
that behalf would be issued in due course. Accordingly, on 5
October, 1988 orders were issued by the Kendriya Vidyalaya
Sangathan for the payment of ex gratia to those employees inter
st
alia who had retired prior to 1 January, 1986.
5. The Central Administrative Tribunal rejected the plea of the
Petitioner which was to the effect that the Petitioner should be
allowed to opt for the pension scheme even though the date of
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5
st
retirement was prior to 1 January, 1986. In holding thus, the
st
Tribunal relied upon the Office Memorandum dated 1 September,
1988 and came to the conclusion that the Petitioner being a CPF
st
beneficiary who had retired prior to 1 January, 1986 was not
entitled to pension.
5. On behalf of the Petitioner reliance has been placed on the
judgment of the Supreme Court in D.S. Nakara v. Union of India ,
(AIR 1983 SC 130). The judgment of the Supreme Court in Nakara
has been revisited in several subsequent decisions and it is now a
settled principle of law that a clear distinction exists between a
situation where an existing pensionary scheme is liberalized and
one where a new scheme is introduced. The liberalized pension
scheme in the context of which the decision was rendered in
Nakara
provided for computation of pension according to a more liberal
formula under which “average emoluments” were determined with
reference to the last ten months' salary instead of 36 months'
salary provided earlier yielding a higher average, coupled with a
slab system and raising the ceiling limit for pension. The Supreme
::: Downloaded on - 01/04/2024 15:48:02 :::
6
Court held that where the mode of computation of pension is
liberalized from a specified date, its benefit must be given not
merely to retirees subsequent to that date but also to earlier
existing retirees irrespective of their date of retirement even though
the earlier retirees would not be entitled to any arrears prior to the
specified date on the basis of the revised computation made
according to the liberalized formula. The decision in Nakara came
up for consideration before a Constitution Bench in Krishena
Kumar v. Union of India
((1990) 4 SCC 207). The Petitioners
before the Supreme Court were retired railway employees who
were covered by or opted for the Railway Contributory Provident
Fund Scheme. The Supreme Court held that P. F. retirees and
pension retirees constitute different classes and Nakara does not
hold that both pension retirees and P.F. Retirees formed a
homogeneous class. These decisions have once again been
considered by a Constitution Bench of the Supreme Court in
Indian ExServices League v. Union of India (AIR 1991 SC 1182).
While referring to Nakara's case and the subsequent decision of
the Constitution Bench in Krishena Kumar, the Supreme Court
::: Downloaded on - 01/04/2024 15:48:02 :::
7
held thus :
“Nakara (AIR 1983 SC 130) decision came up for
consideration before another Constitution Bench recently in
Krishena Kumar v. Union of India (1990) 4 SCC 207 : (AIR
1990 SC 1782). The petitioners in that case were retired
Railway employees who were covered by or opted for the
Railway Contributory Provident Fund Scheme. It was held
that P. F. retirees and pension retirees constitute different
classes and it was never held in Nakara that pension retirees
and P.F. Retirees formed a homogeneous class, even though
pension retirees alone did constitute a homogeneous class
within which any further class notification for the purpose of a
liberalised pension scheme was impermissible. It was
pointed out that in Nakara, it was never required to be
decided that all the retirees for all purposes formed one class
and no further classification was permissible. We have
referred to this decision merely to indicate that another
Constitution Bench of this Court also has read Nakara
decision as one of limited application and there is no scope
for enlarging the ambit of that decision to cover all claims
made by the pension retirees or a demand for an identical
amount of pension to every retiree from the same rank
irrespective of the date of retirement, even though the
reckonable emoluments for the purpose of computation of
their pension be different.”
6. In All India Reserve Bank Retired Officers Association v.
Union of India (AIR 1992 SC 767), the Supreme Court held that
when the State decides to revise and liberalize an existing pension
scheme with a view to augmenting the social security cover
::: Downloaded on - 01/04/2024 15:48:02 :::
8
granted to pensioners, it cannot ordinarily grant the benefit to a
section of the pensioners and deny the same to others by drawing
an artificial cut off line which cannot be justified on rational grounds
and is wholly unconnected with the object intended to be achieved.
But when an employer introduces an entirely new scheme which
has no connection with the existing scheme, different
considerations enter the decision making process. Once such
consideration may be the financial implications of the scheme and
the extent of capacity of the employer to bear the burden. Bearing
in mind the capacity to absorb the financial burden, the employer
would have to decide upon the extent of applicability of the
st
scheme. The Supreme Court also held that the cut off date of 1
January, 1986 was not arbitrarily fixed by the authorities of the
bank or by the Central Government and there was no malafide
st
attempt to deprive those who have retired before 1 January, 1986.
st
The rational for fixing the date as 1 January, 1986 was the same
as the case of Central Government employees based on the
recommendations of the Fourth Central Pay Commission. The
next decision to which it would be instructive to make a reference is
::: Downloaded on - 01/04/2024 15:48:02 :::
9
the judgment of the Supreme Court in Union of India v. P.N.
Menon
(AIR 1994 SC 2221). The principle of law which was
formulated in the aforesaid decision was thus :
“Whenever the Government or an authority, which can be
held to be a State within the meaning of Article 12 of the
Constitution frames a scheme for persons who have
superannuated from service, due to many constraints, it is
not always possible to extend the some benefits to one and
all, irrespective of dates of superannuation. As such any
revised scheme in respect of postretirement benefits, if
implemented with a cutoff date, which can be held to be
reasonable and rational in the light of Article 14 of the
constitution need not be held to be invalid. It shall not
amount to 'picking out a date from the hat' as was said by this
Court in the case of D. R. Nim v. Union of India, AIR 1967 SC
1301, in connection with fixation of seniority. Whenever a
revision takes place, a cut off date becomes imperative,
because the benefit 'has to be allowed within the financial
resources available with the Government.”
Union of India v. Lieut (Mrs.) E. Iacats
Similarly, in (1997 (7)
SCC 334), the Supreme Court rejected a similar plea with the
following observations :
“THE next question relates to payment of pension. Under
Army Instruction No.14 which was in force at the material
::: Downloaded on - 01/04/2024 15:48:02 :::
10
time, the respondent, either on the date of her appointment or
on the date of her retirement, or at any time during her
service, did not have the benefit of pension on retirement.
The terms and conditions of service were known to her at the
time when she joined the service. At the time of joining
service she had signed an agreement to abide by the rules
and regulations governing Military Nursing Service (Local)
from time to time. She has claimed that pensionary benefits
which were conferred for the first time on all those who
retired on or after 1/10/1983 should be given to her although
she retired much prior to that date. Although she has not
challenged the cutoff date as arbitrary, reliance in this
connection is placed by her on the decision in the case of
D.S. Nakara v. Union of India. This decision has been
subsequently explained and distinguished in a number of
cases. In the case of Sushma Sharma (Dr) v. State of
Rajasthan this court cited with approval its earlier
observations in Union of India v. Parameswamn Match
Works Ltd. to the effect that the choice of a date as a basis of
classification cannot always be dubbed as arbitrary unless it
is capricious or whimsical. In the case of State of W. B. v.
Ratan Behari Dey this court considered the pension scheme
introduced by the Calcutta Municipal Corporation from
1/4/1977. It upheld the validity of the cutoff date. Nakara
case was distinguished on the ground that in Nakara case by
an artificial cutoff date, distinction was sought to be made
between retired employees who were governed by the same
rules. However, when a pension scheme is introduced from
a given date, there are two sets of employees who are
governed by two different sets of rules. They cannot be
treated as similarly situated. As the cutoff date was
retrospective, this court also examined the reasonableness of
this retrospective operation. It found the cutoff date to be
reasonable, it being based upon the date of appointment of
the Pay Commission. In a recent decision in the case of
Commander, Head Quarter v. Capt Biplabendra Chanda new
rules reducing the minimum Qualifying service for pension
came into effect from 1/1/1986. The respondent who had
::: Downloaded on - 01/04/2024 15:48:02 :::
11
retired prior to this date was not granted pension under the
old rules as he did not qualify for pension under those rules.
This court, distinguishing Nakara case held that he cannot be
retrospectively made eligible under the new rules.
Pensioners under the old rules and pensioners under the
new rules are not similarly situated. Each set of retiring
employees will be governed by their own rules in force when
they retire.”
7. The same principle has been enunciated in State of
Rajasthan v. Sevanivatra Karamchari Hitkari Samiti
(1995 (2)
SCC 117) and in Hari Ram Gupta (D) Thru. L.R. Kasturi Devi v.
State of U.P.
(AIR 1998 SC 2483).
8. In the present case the reliance that has been placed on the
judgment in D.S. Nakara's case , would not in any manner advance
the contention of the Petitioner. In the present case, it was for the
st
first time that by the Office Memorandum dated 1 September,
1988 the pension scheme came to be applied to the employees of
st
the Kendriya Vidyalaya Sangathan who were in service as on 1
January, 1986 and those who would join service thereafter. The
Petitioner belongs to a class of employees who had retired prior to
st
1 January, 1986. This was, therefore, not a case involving a
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12
liberalization of an existing scheme or the liberalization of the
mode of computing pensionary benefits under an existing scheme.
For the first time, the benefit of pension came to be granted to
employees of the Sangathan. In that view of the matter, it was
legitimately open to the employer to fix a cut off date and to
prescribe that only those employees who were in service on the
cut off date or who joined service thereafter, would be entitled to
pension. Therefore, there is no substance in the plea of the
Petitioner that there has been an unconstitutional discrimination.
The reliance that has been placed on the decision rendered by the
Division Benches of this Court in Shaila D. Varerkar v. State of
Maharashtra
(1999 II CLR 282) and the subsequent unreported
st
decision dated 21 November, 1997 in Writ Petition 3854 of 1997 is
therefore clearly misplaced. The validity of 1.1.86 as the cut off
date is affirmed by the Supreme Court in AIR 1992 SC 767 (supra).
9. For all these reasons, we do not find any merit in the Petition.
The Petition shall accordingly stand dismissed.
CHIEF JUSTICE
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13
(DR. D.Y. CHANDRACHUD, J.)
::: Downloaded on - 01/04/2024 15:48:02 :::
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6358 OF 2004
Sindhu Vishwanath Phadake ..
Petitioner.
Vs.
The Principal,
Kendriya Vidyalaya, Pune & Ors. ..
Respondents.
....
Mr. A.G. Toraskar for the Petitioner.
Mr. Suresh Kumar for the Respondents.
...
CORAM: KSHITIJ R. VYAS, C.J. &
DR.D.Y.CHANDRACHUD, J.
th
.
4 May, 2006
ORAL JUDGMENT (Per DR. D.Y. CHANDRACHUD, J.):
1. The Petitioner joined service as a teacher in the Adarsh
st
Vidya Bhavan School on 1 November, 1957 where he worked
th
until 24 June, 1973. The School was taken over by the Kendriya
th
Vidyalaya Sangathan from 25 June, 1973. The Petitioner
st
continued to work until 31 October, 1985 when she attained the
age of superannuation of 60 years. The Petitioner was a
contributory to the Central Provident Fund Scheme. A request was
::: Downloaded on - 01/04/2024 15:48:02 :::
2
made by the Petitioner for being allowed to switch over to the
pension scheme. That request was turned down and thereupon
the Petitioner moved the Central Administrative Tribunal. The
Tribunal dismissed the application filed by the Petitioner by its
th
order dated 29 May, 2001 which is impugned in these
proceedings.
2. The Tribunal noted that the pension scheme was made
applicable to the Kendriya Vidyalaya Sangathan by an Office
st
Memorandum dated 1 September, 1988. The Tribunal noted that
st
under the terms thereof all those who had retired on or after 1
January, 1986 were eligible for pension. However, the Office
Memorandum provided that a separate scheme of ex gratia was
being worked out in respect of those CPF retirees who had retired
st
prior to 1 January, 1986. In the circumstances, the Tribunal held
st
that the Petitioner who had retired prior to the cut off date of 1
January, 1986 was not entitled to the benefit of the newly
introduced pension scheme.
::: Downloaded on - 01/04/2024 15:48:02 :::
3
3. On behalf of the Petitioner reliance has been placed on the
judgment of the Supreme Court in D.S. Nakara v. Union of India ,
(AIR 1983 SC 130) and to a judgment of a Division Bench of this
Court in Shaila D. Varerkar v. State of Maharashtra (1999 II CLR
282) which followed the judgment of the Supreme Court. Counsel
appearing for the Petitioner urged that there was no rationale in
st
applying the cut off date of 1 January, 1986 and that the Petitioner
should be granted full pensionary benefits.
3A. While considering the submissions which have been urged
on behalf of the Petitioner, it would be necessary to advert to the
st
Office Memorandum dated 1 September, 1988. By this Office
st
Memorandum it is recorded that in the 51 meeting of the Board of
st
Governors of the Kendriya Vidyalaya Sangathan held on 31 May,
1988 a decision was taken to implement mutatis mutandis the
decision taken by the Government of India on the
recommendations of the Fourth Central Pay Commission for
allowing its employees a change over from the Contributory
Provident Fund scheme to the pension scheme. Consequently, it
was decided that persons who join service in the Sangathan on or
::: Downloaded on - 01/04/2024 15:48:02 :::
4
st
after 1 January, 1986 shall be governed only by the GPF cum
pension scheme and will have no option to be governed by the
CPF scheme. However, all CPF beneficiaries who were in service
st
as on 1 January, 1986 and who continued to be in service on the
date of issuance of the Memorandum will be deemed to have come
over to the pension scheme. Such employees, however, were
given an option to continue under the CPF scheme if they so
desired. In so far as the CPF beneficiaries who had retired prior to
st
1 January, 1986 were concerned, clause 5 of the Office
Memorandum stipulated that a proposal to grant ex gratia payment
to such persons was separately under consideration and orders in
th
that behalf would be issued in due course. Accordingly, on 5
October, 1988 orders were issued by the Kendriya Vidyalaya
Sangathan for the payment of ex gratia to those employees inter
st
alia who had retired prior to 1 January, 1986.
5. The Central Administrative Tribunal rejected the plea of the
Petitioner which was to the effect that the Petitioner should be
allowed to opt for the pension scheme even though the date of
::: Downloaded on - 01/04/2024 15:48:02 :::
5
st
retirement was prior to 1 January, 1986. In holding thus, the
st
Tribunal relied upon the Office Memorandum dated 1 September,
1988 and came to the conclusion that the Petitioner being a CPF
st
beneficiary who had retired prior to 1 January, 1986 was not
entitled to pension.
5. On behalf of the Petitioner reliance has been placed on the
judgment of the Supreme Court in D.S. Nakara v. Union of India ,
(AIR 1983 SC 130). The judgment of the Supreme Court in Nakara
has been revisited in several subsequent decisions and it is now a
settled principle of law that a clear distinction exists between a
situation where an existing pensionary scheme is liberalized and
one where a new scheme is introduced. The liberalized pension
scheme in the context of which the decision was rendered in
Nakara
provided for computation of pension according to a more liberal
formula under which “average emoluments” were determined with
reference to the last ten months' salary instead of 36 months'
salary provided earlier yielding a higher average, coupled with a
slab system and raising the ceiling limit for pension. The Supreme
::: Downloaded on - 01/04/2024 15:48:02 :::
6
Court held that where the mode of computation of pension is
liberalized from a specified date, its benefit must be given not
merely to retirees subsequent to that date but also to earlier
existing retirees irrespective of their date of retirement even though
the earlier retirees would not be entitled to any arrears prior to the
specified date on the basis of the revised computation made
according to the liberalized formula. The decision in Nakara came
up for consideration before a Constitution Bench in Krishena
Kumar v. Union of India
((1990) 4 SCC 207). The Petitioners
before the Supreme Court were retired railway employees who
were covered by or opted for the Railway Contributory Provident
Fund Scheme. The Supreme Court held that P. F. retirees and
pension retirees constitute different classes and Nakara does not
hold that both pension retirees and P.F. Retirees formed a
homogeneous class. These decisions have once again been
considered by a Constitution Bench of the Supreme Court in
Indian ExServices League v. Union of India (AIR 1991 SC 1182).
While referring to Nakara's case and the subsequent decision of
the Constitution Bench in Krishena Kumar, the Supreme Court
::: Downloaded on - 01/04/2024 15:48:02 :::
7
held thus :
“Nakara (AIR 1983 SC 130) decision came up for
consideration before another Constitution Bench recently in
Krishena Kumar v. Union of India (1990) 4 SCC 207 : (AIR
1990 SC 1782). The petitioners in that case were retired
Railway employees who were covered by or opted for the
Railway Contributory Provident Fund Scheme. It was held
that P. F. retirees and pension retirees constitute different
classes and it was never held in Nakara that pension retirees
and P.F. Retirees formed a homogeneous class, even though
pension retirees alone did constitute a homogeneous class
within which any further class notification for the purpose of a
liberalised pension scheme was impermissible. It was
pointed out that in Nakara, it was never required to be
decided that all the retirees for all purposes formed one class
and no further classification was permissible. We have
referred to this decision merely to indicate that another
Constitution Bench of this Court also has read Nakara
decision as one of limited application and there is no scope
for enlarging the ambit of that decision to cover all claims
made by the pension retirees or a demand for an identical
amount of pension to every retiree from the same rank
irrespective of the date of retirement, even though the
reckonable emoluments for the purpose of computation of
their pension be different.”
6. In All India Reserve Bank Retired Officers Association v.
Union of India (AIR 1992 SC 767), the Supreme Court held that
when the State decides to revise and liberalize an existing pension
scheme with a view to augmenting the social security cover
::: Downloaded on - 01/04/2024 15:48:02 :::
8
granted to pensioners, it cannot ordinarily grant the benefit to a
section of the pensioners and deny the same to others by drawing
an artificial cut off line which cannot be justified on rational grounds
and is wholly unconnected with the object intended to be achieved.
But when an employer introduces an entirely new scheme which
has no connection with the existing scheme, different
considerations enter the decision making process. Once such
consideration may be the financial implications of the scheme and
the extent of capacity of the employer to bear the burden. Bearing
in mind the capacity to absorb the financial burden, the employer
would have to decide upon the extent of applicability of the
st
scheme. The Supreme Court also held that the cut off date of 1
January, 1986 was not arbitrarily fixed by the authorities of the
bank or by the Central Government and there was no malafide
st
attempt to deprive those who have retired before 1 January, 1986.
st
The rational for fixing the date as 1 January, 1986 was the same
as the case of Central Government employees based on the
recommendations of the Fourth Central Pay Commission. The
next decision to which it would be instructive to make a reference is
::: Downloaded on - 01/04/2024 15:48:02 :::
9
the judgment of the Supreme Court in Union of India v. P.N.
Menon
(AIR 1994 SC 2221). The principle of law which was
formulated in the aforesaid decision was thus :
“Whenever the Government or an authority, which can be
held to be a State within the meaning of Article 12 of the
Constitution frames a scheme for persons who have
superannuated from service, due to many constraints, it is
not always possible to extend the some benefits to one and
all, irrespective of dates of superannuation. As such any
revised scheme in respect of postretirement benefits, if
implemented with a cutoff date, which can be held to be
reasonable and rational in the light of Article 14 of the
constitution need not be held to be invalid. It shall not
amount to 'picking out a date from the hat' as was said by this
Court in the case of D. R. Nim v. Union of India, AIR 1967 SC
1301, in connection with fixation of seniority. Whenever a
revision takes place, a cut off date becomes imperative,
because the benefit 'has to be allowed within the financial
resources available with the Government.”
Union of India v. Lieut (Mrs.) E. Iacats
Similarly, in (1997 (7)
SCC 334), the Supreme Court rejected a similar plea with the
following observations :
“THE next question relates to payment of pension. Under
Army Instruction No.14 which was in force at the material
::: Downloaded on - 01/04/2024 15:48:02 :::
10
time, the respondent, either on the date of her appointment or
on the date of her retirement, or at any time during her
service, did not have the benefit of pension on retirement.
The terms and conditions of service were known to her at the
time when she joined the service. At the time of joining
service she had signed an agreement to abide by the rules
and regulations governing Military Nursing Service (Local)
from time to time. She has claimed that pensionary benefits
which were conferred for the first time on all those who
retired on or after 1/10/1983 should be given to her although
she retired much prior to that date. Although she has not
challenged the cutoff date as arbitrary, reliance in this
connection is placed by her on the decision in the case of
D.S. Nakara v. Union of India. This decision has been
subsequently explained and distinguished in a number of
cases. In the case of Sushma Sharma (Dr) v. State of
Rajasthan this court cited with approval its earlier
observations in Union of India v. Parameswamn Match
Works Ltd. to the effect that the choice of a date as a basis of
classification cannot always be dubbed as arbitrary unless it
is capricious or whimsical. In the case of State of W. B. v.
Ratan Behari Dey this court considered the pension scheme
introduced by the Calcutta Municipal Corporation from
1/4/1977. It upheld the validity of the cutoff date. Nakara
case was distinguished on the ground that in Nakara case by
an artificial cutoff date, distinction was sought to be made
between retired employees who were governed by the same
rules. However, when a pension scheme is introduced from
a given date, there are two sets of employees who are
governed by two different sets of rules. They cannot be
treated as similarly situated. As the cutoff date was
retrospective, this court also examined the reasonableness of
this retrospective operation. It found the cutoff date to be
reasonable, it being based upon the date of appointment of
the Pay Commission. In a recent decision in the case of
Commander, Head Quarter v. Capt Biplabendra Chanda new
rules reducing the minimum Qualifying service for pension
came into effect from 1/1/1986. The respondent who had
::: Downloaded on - 01/04/2024 15:48:02 :::
11
retired prior to this date was not granted pension under the
old rules as he did not qualify for pension under those rules.
This court, distinguishing Nakara case held that he cannot be
retrospectively made eligible under the new rules.
Pensioners under the old rules and pensioners under the
new rules are not similarly situated. Each set of retiring
employees will be governed by their own rules in force when
they retire.”
7. The same principle has been enunciated in State of
Rajasthan v. Sevanivatra Karamchari Hitkari Samiti
(1995 (2)
SCC 117) and in Hari Ram Gupta (D) Thru. L.R. Kasturi Devi v.
State of U.P.
(AIR 1998 SC 2483).
8. In the present case the reliance that has been placed on the
judgment in D.S. Nakara's case , would not in any manner advance
the contention of the Petitioner. In the present case, it was for the
st
first time that by the Office Memorandum dated 1 September,
1988 the pension scheme came to be applied to the employees of
st
the Kendriya Vidyalaya Sangathan who were in service as on 1
January, 1986 and those who would join service thereafter. The
Petitioner belongs to a class of employees who had retired prior to
st
1 January, 1986. This was, therefore, not a case involving a
::: Downloaded on - 01/04/2024 15:48:02 :::
12
liberalization of an existing scheme or the liberalization of the
mode of computing pensionary benefits under an existing scheme.
For the first time, the benefit of pension came to be granted to
employees of the Sangathan. In that view of the matter, it was
legitimately open to the employer to fix a cut off date and to
prescribe that only those employees who were in service on the
cut off date or who joined service thereafter, would be entitled to
pension. Therefore, there is no substance in the plea of the
Petitioner that there has been an unconstitutional discrimination.
The reliance that has been placed on the decision rendered by the
Division Benches of this Court in Shaila D. Varerkar v. State of
Maharashtra
(1999 II CLR 282) and the subsequent unreported
st
decision dated 21 November, 1997 in Writ Petition 3854 of 1997 is
therefore clearly misplaced. The validity of 1.1.86 as the cut off
date is affirmed by the Supreme Court in AIR 1992 SC 767 (supra).
9. For all these reasons, we do not find any merit in the Petition.
The Petition shall accordingly stand dismissed.
CHIEF JUSTICE
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(DR. D.Y. CHANDRACHUD, J.)
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