IMPORTANT POINT
Nakara case (1983) 1 SCC 305 does not lay down that the same amount of pension must be paid to all persons retiring from Govt. service irrespective of the date of retirement.

Headnote:West Bengal Services (Revision of Pay and Allowances) Rules, 1990-Whether the decision of the Apex Court in D.S. Nakara v. Union of India, 1983(1) SCC 305 obliges the appellant to pay pension calculated on the revised scales of pay under the West Bengal (Revision of Pay & Allowances Rules, 1990 to all the erstwhile employees of the State Govt. irrespective of date of retirement? (No)-High Court holding that all pre-1986 retirees were entitled to the pensionary benefits as were paid to post-1986 retirees-Whether correct? (No)-Result-Appeal allowed.
       Held : Nakara s decision did not direct the payment of an equal amount of pension to all pensioners. This is clear from the following passage where the Court discusses the financial impact of the formula on the resources of the Government:
        In our opinion, it would make a marginal difference in the case of past pensioners because the emoluments are not revised. The last revision of emoluments was as per the recommendation of the Third Pay Commission (Raghubar Dayal Commission). If the emoluments remain the same, the computation of average emoluments under amended Rule 34 may raise the average emoluments, the period for averaging being reduced from last 36 months to last 10 months. The slab will provide slightly higher pension and if some reaches the maximum the old lower ceiling will not deny him what is otherwise justly due on computation.
       This was affirmed in the Indian Ex-Services League and Others v. Union of India, 1991(2) SCC 104. In that case, the petitioner claimed that the pre- April 1979 retirees of the Armed Forces were entitled to the same amount of pension for each rank. The prayers were substantially the same as those made by the respondent-association before us. The claim for the same amount of pension to be paid to all pre-April 1979 retires of the Armed Forces as to the post-April 1979 retirees was rejected holding, inter-alia:
        Nakara decision is 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.
       Again in K.L. Rathee v. Union of India & Others, 1997(6) SCC 7 the case of the petitioner was that following Nakara case he had to be given the same amount of pension as other employees of his rank irrespective of the date of retirement. The Court noted that Nakara did not strike down the definition of emoluments and held that :
        Nakara case does not lay down that the same amount of pension must be paid to all persons retiring from government service irrespective of the date of retirement.... Even if pension is calculated on the basis of the same formula the basis of calculation has to be the average of the last ten months emoluments. This principle of adopting last ten months emoluments as the basis for calculating of pension must be uniformly applied to all persons drawing pension from the Central Government. This was all that was laid down in Nakara case. It, however, did not lay down that the quantum of emoluments drawn during the last ten months of service of each government employee must be taken to be the same for this purpose...... The emoluments have to be calculated according to the government rules in force at the time of retirement of the employees."
       (Emphasis supplied)
       Consequently in the present case for the period in question, namely, pre-1.1.86 to 31.12.95 when the definition of emoluments was not amended and pension continued to be calculated on the basis of the unrevised emoluments of the pre 1986 pensioners, no parity in the amount of pension can be granted. We, accordingly, allow this appeal and set aside the decision of the High Court but without any order as to costs. (Paras 22 to 26)

JUDGMENT

Ruma Pal, J.-The issue to be decided in this appeal is whether the decision of this Court in D.S. Nakara v. Union of India1 obliges the appellant to pay pension calculated on the revised scales of pay under the West Bengal Services (Revision of Pay and Allowances) Rules, 1990, to all the erstwhile employees of the State Government irrespective of their date of retirement.

2. The West Bengal Services (Revision of Pay & Allowances) Rules, 1990 (referred to hereafter as the 1990 ROPA Rules ), inter-alia, revised the pay scales of State Government employees w.e.f. 1st January 1986. It covered those employees who were in service on 1.1.86 even though such employees may have retired before the 1990 ROPA Rules were in fact published. As far as these retired employees were concerned, their pay could only be revised notionally and a memorandum was issued on 25th April 1990 giving them pensionary benefits calculated on the basis of such notionally revised scales of pay.

3. The notification was challenged by the respondent-association, the members of which are all pre-1986 retirees. They filed a writ petition before the Calcutta High Court claiming that they too were entitled to the same benefits as the post 1986 retirees. The petition was disposed of by a learned Single Judge by directing the Secretary of the Finance Department to consider the claim of the association in the light of the judgment in D.S. Nakara after giving the association a chance of being heard and by passing a speaking order.

4. In compliance with the directive of the High Court, the Secretary, Finance Department heard the members of the association. By an order dated 26th April, 1993, the Finance Secretary held that D.S. Nakara s decision only directed parity in the principle of calculation of pension and not parity in the actual quantum of pension payable. It was held that the State Government had adopted the same formula for computation of pension of all the pensioners irrespective of the date of retirement, namely, 50% of last pay drawn by the incumbent before the retirement. Since those who had retired prior to the date of revision of the pay scales could not avail themselves of the revised pay scales, the Fourth Central Pay Commission evolved a formula to give the pre-1986 retirees Dearness Allowance on the basis of the 608 point consumer price index (CPI). The order noted that the revised pay scales were also on the basis of 608 point CPI being merged with un-revised pay. According to the Finance Secretary, the State Government had issued a notification 7532-F dated 6th April 1988 by which the State Government, had suitably removed the disparity and discrimination among all classes of pensioners irrespective of their date of retirement. The claim of the association for calculation of pension payable to pre-1.1.86 retirees on the basis of the revised pay scales was accordingly rejected.

5. Impugning the decision of the Finance Secretary the respondent-association filed a second writ application before the High Court in which it was, inter-alia, claimed that the Finance Secretary s order should be quashed and the State-respondents should be directed to give equal pension and pensionary benefits to all pensioners irrespective of their date of retirement.

6. By reason of promulgation of the Administrative Tribunals Act 1985, the second writ petition was transferred to the West Bengal Administrative Tribunal. The Tribunal rejected the application of the association. The Tribunal s order was challenged by the respondent association before the Division Bench of the High Court by a third application under Article 226 of the Constitution. This writ application was decided in favour of the association by an order dated 13th May 1998. It was held by the High Court that in keeping with the decision in D.S. Nakara s case, the members of the association were entitled to the pensionary benefits as were paid to post-1986 retirees. The decision of the High Co

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2002 Supreme(SC) 7

IMPORTANT POINTNakara case (1983) 1 SCC 305 does not lay down that the same amount of pension must be paid to all persons retiring from Govt. service irrespective of the date of retirement.

Cases Referred (6)

IMPORTANT POINT
Nakara case (1983) 1 SCC 305 does not lay down that the same amount of pension must be paid to all persons retiring from Govt. service irrespective of the date of retirement.