Full Judgment Text
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PETITIONER:
HARI RAM GUPTA (D) THR. L.R. KASTURI DEVI
Vs.
RESPONDENT:
THE STATE OF UTTAR PRADESH
DATE OF JUDGMENT: 22/07/1998
BENCH:
SUJATA V. MANOHAR, G.B. PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
PATTANAIK, J.
Leave granted.
This appeal by grant of special leave is directed
against the judgment dated 13th of November, 1995 of the
Allahabad High Court in Civil Miscellaneous Petition No. 557
of 1987. Hari Ram Gupta husband of the present appellant,
had filed the writ petition seeking a mandamus from the
court to the appropriate authorities to give him the
benefits of the Uttar Pradesh Palika (Centralised) Service
Retirement benefit Rules, 1981 (hereinafter referred to as
’the Rules’). But said Hari Ram Gupta had retired from
service on superannuation in the year 1980. He, however,
claimed that he would be entitled to pension under the Rules
as the Rules are intended to apply retrospectively and at
any rate following the principle of the Judgement of this
Court in D.S. Nakara and other vs. Union of India, (1983) 1
SCC 305, the court should grant him the relief. The High
Court by the impugned judgment came to hold that the Rules
have no retrospective operation, and therefore, the
applicant was not entitled to claim pension under the Rules.
Soon after the judgment of the Allahabad High Court, the
husband of the appellant having died, the widow filed the
special leave application out of which this appeal arises.
The sole question for consideration is whether the Rules can
be said to have any retrospective application and are
applicable to those employees belonging to the Palika
(Centralised) Service, who retired from service prior to the
coming into force of the Rules. It is not disputed that
before the Rules came into operation there was no rules
providing pension for the employees of the centralised
services.
The learned counsel for the appellant strenuously
contended that a conjoint reading of sub-rules (2) and (3)
of Rule 3 would make it crystal clear that the Rule is
applicable even to those employees who have retired from
service on the date the Rules came into operation, provided
they exercise their option in accordance with the Rules
within the stipulated period of 90 days from the enforcement
of the Rules and they deposit the amount finally withdrawn
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from Palika’s contribution and bonus deposited in his
Provident Fund Account into the pension fund established
under Part VI of the Rules. According to the learned counsel
unless such an interpretation is given, the provision of
sub-rule (3) would become otiose inasmuch as an officer is
entitled to finally withdraw the amount from the Provident
Fund on super annuation and not while he continues to be in
service. The learned counsel further contended that under
identical circumstances an employee of a school under New
Delhi Municipal Committee had approached this Court in the
case of Shakuntala Mehrishi, New Delhi vs. New Delhi
Municipal Committee and others, (1991) 3 SCC 521 and this
Court had granted the retiral benefits to the employee. The
aforesaid decision, contends the learned counsel for the
appellant, should apply with full force to the case in hand.
The learned counsel further urged that the Rules in question
providing for pension, if is held to apply to only those
employees who retired subsequent to the coming into force of
the Rules and not to those to have already retired, then it
would be violative of the law laid down by this Court in the
case of D.S. Nakara (supra) inasmuch as pension paid is not
a bounty nor an ex-gratia payment for past services rendered
and is a social welfare measure rendering socio-economic
justice to those who in the hey-day of their life
ceaselessly toiled for the employer on an assurance that in
their old age they would not be left in lurch.
Learned counsel for the respondent, on the other hand
contended that there is no ambiguity in the Rules and
nowhere the Rules indicate that it would apply
retrospectively on certain conditions being fulfilled. He
further contended that under the provisions of the
Regulation for payment of Provident Fund made by Nagar
Palika, Jhansi an employee is entitled to finally withdraw
after rendering 25 years of service or when such employee
has less than 8 years of service to attain the age of
superannuation, and therefore, it is not correct that final
withdrawal is permissible only on the date of
superannuation. In that view of the matter the expression
’final withdrawal’ in sub-rule (3) of Rule 3 of the Rules
cannot be interpreted to mean that the Rules have a
retrospective operation. The learned counsel also urged that
the rules determining the service conditions of an employee
under the service jurisprudence is usually prospective in
nature unless there is anything in the Rules which indicate
the legislative intent of making the rule retrospective or
the rule is expressly made retrospective. Since neither of
these conditions are satisfied in the case in hand, the
rules must be held to be prospective, and therefore, would
not govern the case of those who retired prior to the coming
into force of the Rules. on the question of applicability
of the decision of this Court in Shakuntala Mehrishi case,
the learned counsel contended that the ratio laid down in
that case has no application and the said decision is no
guidance for deciding the question as to whether the Rules
in the present case has any retrospective operation. On the
question of the applicability of the ratio in D.S. Nakara’s
case, the learned counsel for the respondent urged that the
appellant has not challenged validity of the Rules and on
the other hand seek relief on the basis of the said Rule,
therefore, the Rule cannot be struck down. He further
contended that the decision of this Court in D.S. Nakara has
been watered down by this Court in several subsequent cases
and it is the settled position now that the employees
retiring on a particular date would be governed by the
benefits of the rules then existing and cannot complain of
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if at a subsequent stage certain other rules confer some
additional benefits. Thus, judged the principles enunciated
by this Court in nakara have no application to the case in
hand.
In view of the rival submission, the first question
that arises for consideration is whether the Rules can be
said to have any retrospective operation?
We have examined the Rules carefully and there is no
express provision in the Rules giving it retrospective
operation. The question then arises as to whether from any
of the provisions contained in the Rules is it possible to
infer that the Rules have been given retrospective
operation. The argument of the learned counsel appearing for
the appellant in this context is based upon the language
used in sub-rule (2) and sub-rule (3) of Rule 3. For better
appreciation of the point in issue sub-rules (1), (2) and
(3) of Rule 3 are quoted hereinbelow in extenso:-
3. Application of the rules.- (1)
These rules shall apply
compulsorily to all those officers
who were appointed on or after July
9, 1966 under clause (1) of Rule 21
of the Uttar Pradesh Palika
(Centralised) Services Rules, 1966
and would become permanent on any
post in the Centralised Services.
(2) The officers who were finally
absorbed on any post in Centralised
Services under clause (2) of Rule 6
of the Uttar Pradesh Palika
(Centralised) Services Rules, 1966
will have an option to elect
whether they would be governed by
the existing Pension/Provident Fund
Rules of the Palika as hitherto or
would like to governed by those
rules. This option shall be
exercised within ninety days from
the enforcement of these rules and
the option once exercised shall be
final.
(3) If an officer opting these
rules has finally withdrawn the
amounts of Palika’s contribution
and bonus deposited in his
Provident Fund Account, the same
shall have to be deposited by him
into the pension fund established
under Part VI of these Rules along
with interest at the rates fixed
from time to time by the Reserve
Bank of India."
Sub-rule (1) of Rule 3 clearly indicates that Rule
should apply to those officers who were appointed on or
after July 1966 under clause 1 of Rule 21 of the Centralised
Services Rules of 1966 and would become permanent in the
Centralised services. This sub-rule obviously has no
application. The earned counsel appearing for the appellant,
however, urged that if sub-rules (2) and (3) of Rule 3 are
read together it unequivocally indicates that the Rules do
apply to those persons who have already retired. In as much
as sub-rule (3) gives an option to officers to exercise
option to be governed by the Rules and if they have finally
withdrawn the amounts of Palika’s contribution and bonus
deposited in Provident Fund Account the same will have to
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deposited into the pension fund. It is contended by the
learned counsel that an employee can finally withdraw the
amount from the Provident Fund only on his superannuation
and not at any earlier point of time while he continues to
be in service and, therefore, this sub-rule clearly
indicates that the Rules apply to those who have already
superannuated on the date the Rule came into force. But on
examining the provisions contained in Pension and General
Provident Fund Regulations or Rules which governed the case
of employees of Palika, more particularly the provisions of
Clause 5 - C(1) we find that final withdrawals under the
Regulation is permitted in the case of Municipal servants
who have either rendered 25 years service or have less than
8 years to attain the age of superannuation. The purpose for
which such final withdrawal is permissible is enumerated in
other sub-clauses of said Clause 5 - C. In this view of the
matter the argument of the earned counsel appearing for the
appellant that final withdrawal is permissible only on the
date of superannuation cannot be sustained and the
expression ’final withdrawal’ as envisaged under sub-rule
(3) of Rule 3 would mean those final withdrawals made by an
employee while continuing in service for the purposes
mentioned in sub-clause (2) of Clause 5-C. Consequently, the
argument that a combined reading of sub-clause (3) and sub-
clause (2) of Rule 3 indicates that the Rules have
retrospective application is devoid of any force and the
same accordingly stands rejected.
The next question that arises for consideration is
whether the judgment of this Court in Shakuntala Mehrishi
vs. New Delhi Municipal Committee and other (1990) 3 SCC
521, any way helps the appellant in getting the relief
sought for? In the aforesaid case the teacher of a re-
cognised aided school opted for pension and gratuity within
stipulated period in prescribed proforma as desired by
statutory notification. But notwithstanding his
superannuation he did not receive the benefits as the
modalities about contribution towards pension fund and
approval of Government of India had not been obtained. This
Court held that payments to the employee cannot be deferred
on such grounds over which the employee has not control and
accordingly directed that the necessary payments be made. we
fail to understand how the aforesaid decision is in any way
applicable to the case in hand for deciding the question as
to whether the Rules providing for pension would
retrospectively apply to the case of an employee who had
already retired before the Rules came into operation. In
our considered opinion the aforesaid decision of this Court
does not help the appellant in any manner.
The only other question that survives for our
consideration is whether the ratio in Nakara’s case will
assist the appellant in getting the relief sought for? In
D.S. Nakara and others vs. Union of India (1983) 1 SCC, 305
the question for consideration before this Court was whether
on the basis of date of retirement the retirees can be
classified into different groups and thereupon make
provision granting some benefits to one group denying the
others? In the aforesaid case the provisions for pension was
applicable to all retirees and, therefore, pensioners form a
class as a whole. But when Liberalised Pension Scheme was
introduced the said Scheme was made applicable to a group of
pensioners and not to all and therefore, it was held by this
Court that pensioners form a class as a whole and cannot be
micro-classified by an arbitrary, unprincipled and
unreasonable eligibility criteria. it is to be noted that
the aforesaid judgment was considered by this Court In the
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subsequent Constitution Bench judgment of Krishna Kumar vs.
Union of India (1991) 4 SCC, 207 wherein the decision of
Nakara (supra) was explained and it was held that the
pension retirees and provident fund retirees do not form one
homogeneous class on the other hand the Rules governing the
provident fund and its contribution are entirely different
from the Rules governing pension and, therefore, it would
not be reasonable to argue what is applicable to the pension
retirees must also equally be applicable to Provident Fund
retirees must also equally be applicable to Provident Fund
retirees. It was further held in the aforesaid case that the
rights of each individual retiree finally crystallised on
his retirement where after no continuing obligation remained
in case of those who are governed by Provident Fund Rules
whereas in case of Pension retirees the obligation continues
till the death of the employee. This Court categorically
held that Nakara (supra) cannot be an authority for the
decision in Krishna Kumar (supra). In Union of India vs.
B.P.N. Menon (1994) 4 SCC 68 a similar question came up for
consideration and distinguishing Nakara and following
Krishna Kumar and other similar cases the Court held that
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 same benefits to one and
all, irrespective of the dates of superannuation. As such
any revised scheme in respect of post-retirement benefits,
if implemented with a cut-off 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. 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. When the Army
personnel claimed the same pension irrespective of their
date of retirement this Court in the Constitution Bench case
of the Indian ex-services League vs. Union of India, (1991)2
SCC 104, the Court considered the grievance of ex-servicemen
who had laid the claim on the basis of nakara (supra) but
ultimately negatived the same and followed Krishna Kumar
(supra). In All India Reserve Bank Retired Officers
Association vs. Union of India, (1192) Suppl 1 SCC 664, when
the validity of the introduction of Pensions scheme in lieu
of Contributory Provident Fund Scheme was challenged on the
ground that Bank employees who retired prior to 1.1.1986
have not been given the benefit of the said scheme it was
held by this Court that there is no arbitrariness in the
same.
This being the position the appellant having
superannuated prior to the Rule coming into force cannot
claim the right to pension under the Rules with the help of
the decision of this Court in Nakara (supra) and further in
view of our conclusion that the Rules do not have any
retrospective operation the relief sought for by the
appellant to get pension under the Rules cannot be granted.
In the premises, as aforesaid, the appeal fails and is
dismissed. But in the circumstances there will no order as
to costs.