Important Point
Where an employee retired in 1981 and in 1987 Death-cum-Retirement Benefits Rules came to be amended on basis of restructured pay scale recommended by Pay Commission, whereby employees who retire after 1.1.1986 are given pension benefit at higher rate on basis of restructured pay scale, the employees who retired prior to 1.1.1986 could not claim pension benefits on par with employee retired after 1.1.1986.

Headnote:The Indian Administrative Service (Pay) Rules, 1954-West Bengal Service (Death-cum-Retirement) Benefit Rules, 1971 - Rule 91-Pension-Fixation of-Respondent, a member of West Bengal High Judicial Service, retired in February, 1981-Consequent to Fourth Pay Commission recommendation amendments made to All India Services (Death - cum - Retirement Benefits) Rules, 1958 on 22-5-1987-Pension as per amended Rule is to be worked out, in respect of person retiring after 1.1.1986, at 50% of restructed pay scale-Claim that benefits conferred on person who retired after 1.1.1986 should be made available to persons who retired prior to that date -Not tenable.
Held : In exercise of the powers conferred by sub-section (1) of Section 3 of the All India Services Act, 1951 the Central Government issued a Notification on 22nd May, 1987 amending the All India Services (Death-cum-Retirement Benefits) Rules, 1958. The word “emoluments” has been defined thereby to mean the pay that a member of the service was receiving before his retirement or death, as the case may be. The proviso to the definition clause is to the effect that in the case of a member of the service retiring from service within ten months of the date of coming over to the revised scales of pay, the emoluments in respect of any period prior to coming over to the revised scales of pay shall include the pay other than special pay in the pre-revised scale, dearness allowance, additional dearness allowance and ad hoc dearness allowance appropriate to pay upto Cost of Price Index 608 actually drawn during the relevant period and interim relief appropriate to pay actually drawn during the relevant period. The expression “Revised scales of pay” has been defined to mean the scales of pay introduced with effect from 1st day of January, 1986. Thus, the definition clauses themselves exclude the petitioner who retired from service in February, 1981 long before the revision of scales of pay came into force. Rule 18 provides for the amount of gratuity and pension, in the case of a member of the service who retires from service in accordance with the rules. The note at the end of the rule reads that a member of the service before 1st day of January, 1986 shall be granted such additional relief in pension, as may be sanctioned by the Central Government, Hence, the provisions of Rule 18 fixing the amount of gratuity or pension will not apply to the writ petitioner. The new provisions for payment of pension introduced by the amendment of 1987 were only consequential to the restructuring of the pay-scales of the members of the service. (Paras 8 & 10)

Judgment

Srinivasan, J.-The first respondent in this appeal was a member of the West Bengal Higher Judicial Service and retired as Chief Metropolitan Magistrate, Calcutta in February, 1981. At that time, he was drawing pay in the super time scale of Rs. 2500-2750 plus admissible allowances. His pension was fixed in accordance with the rules at the maximum rate of Rs. 1225/- per month. His retirement gratuity was settled at Rs. 30000/-.

2. According to Rule 91 of the West Bengal Service (Death - cum - Retirement) Benefit Rules, 1971, the rules applicable to members of All India Services shall apply mutatis mutandis to members of West Bengal Higher Judicial Service. There is no dispute that the first respondent’s pension was fixed in accordance therewith.

3. The Indian Administrative Service (Pay) Rules, 1954 was amended on the basis of the recommendation of the Fourth Central Pay Commission as per Government Order dated 13th March, 1987. Thereby the previous single super-time selection grade applicable to the central government officers in the ranks of Joint Secretaries at Rs. 2500-2750 was restructured into three categories;

A. Rs. 5900-200-6700,

B. Rs. 7300-100-7600,

C. Rs. 8000 (fixed) w.e.f. 1.1.1986.

Consequential amendment was made in All India Services (Death-cum-Retirement Benefits) Rules, 1958 by a notification dated May 22, 1987 whereby the pension of persons retiring after 1.1.86 was to be calculated at 50% of the basic pay in the restructured supertime scale with a ceiling on pension at Rs. 4500/- per month for all categories of pensioners. The benefit of the said amendment was available only to persons retiring after 1.1.1986. In so far as persons who retired prior to 1.1.86 are concerned, the Government of India rationalised the pension structures by Office Memorandum No. 2/1/87-PIC-1 dated 16.4.87 to implement the Government decision on the recommendation of the Fourth Central Pay Commission. The above memorandum classified the retirees before 1.1.86 into A, B and C categories in pari materia with the Tables I, II and III of the Fourth Central Pay Commission report and provided dearness reliefs for them at the rate of 95%, 80% and 70% of their existing pensions respectively. In accordance with the said memorandum the first respondent’s pension was refixed at Rs. 2355/- per month.

4. However, the first respondent filed a writ petition in the High Court of Calcutta under Article 226 of the Constitution of India praying for issue of a mandamus to the Union of India and the State Government to withdraw the aforesaid notification dated 16.4.87, settle and pay the pension to the petitioner at the rate of Rs. 3800/- per month at par with the serving officers of his rank in the Indian Administrative Service after deducting the amount drawn already and to pay all the arrears thereof forthwith and for a declaration that the said notification dated 16.4.87 was illegal, arbitrary, unfair and unconstitutional and as such liable to be struck down and quashed. In addition to the above prayers, the petitioner made several other prayers but it is not necessary for us to refer to them here. Suffice it to point out that the basis of the claim of the petitioner is that the benefits which were conferred on persons who retired after 1.1.1986 should be made available to persons who retired prior to that date.

5. The writ petition was dismissed by a single Judge of the High Court who held that the principle laid down by this Court in D.S. Nakara’s case1 would not apply and the reliance placed by the writ petitioner on the said ruling was mis-conceived. The Court pointed out that the difference between the pension payable to persons who retired after 1.1.86 and the pension payable to the persons who retired prior to that date was on account of restructuring the scales of pay and the writ petitioner having retired long prior to the said date when the old scale of pay was prevailing was no

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1998 Supreme(SC) 1217

Cases Referred (6)