Full Judgment Text
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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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