Judgment

DUTT, J.:- The petitioner was the Additional Registrar of this Court. His normal: date of retirement was March 31, 1987. He, however, sought for voluntary retirement from the service of this Court and on his application in that regard, the following order dated December 6, 1985 was communicated to him by the Registrar of this Court:

"Office Order

The Honble the Chief Justice of India has accepted the notice of Shri S. Banerjee, Offg. Additional Registrar (permanent Deputy Registrar), seeking voluntary retirement from service under the provisions of Rule 43A of the Central Civil Services (Pension) Rules, 1972, and has permitted him to retire voluntarily from the service of the Registry of the SC of India with effect from the forenoon of January 1, 1986."

2. It is clear from the order extracted above that the petitioner was permitted to retire voluntarily from the service of the Registry of the SC with effect from the forenoon of January 1, 1986.

3. After the retirement of the petitioner, the Fourth Central Pay Commission (for short Pay Commission) gave its report recommending the revision of salaries and pension of the Government employees. It is not disputed that the above recommendations of the Pay Commission have been accepted by the Government and that the benefit thereof is also available to the employees of this Court. Paragraph 17.3 of Chapter 17 of Part II at 286 page 93 of the Report of the Pay Commission provides as follows:

17.3 In the case of employees retiring during the period January 1, 1986 to September 30, 1986, government may consider treating the entire dearness allowance drawn by them up to December 31, 1985 as pay for pensionary benefits."

4. The petitioner claimed the benefit of the recommendation of the Pay Commission as contained in the said paragraph 17.3, but it was not allowed on the ground that he did not, as he was not entitled to, draw salary for January 1, 1986 in view of the proviso to rule 5(2) of the Central Civil Service (Pension) Rules, 1972, hereinafter referred to as the Rules". Rule 5(2) reads as follows :

"5(2). The day on which a Government servant retires or is retired or is discharged or is allowed to resign from service, as the case may be, shall be treated as his last working day. The date of death shall also be treated as a working day.

Provided that in the case of a Government servant who is retired prematurely or who retires voluntarily under clauses (j) to (m) of Rule 56 of the Fundamental Rules or Rule 48 (or Rule 48-A) as the case may be, the date of retirement shall be treated as a non-working day."

5. At the hearing of the writ petition, it has also been vehemently urged on behalf of the respondents that as in view of the proviso to rule 5(2) of the Rules, the date of retirement of the petitioner should be treated as a non-working day or, in other words, as the petitioner was not entitled to the salary for the day of his retirement, he was not entitled to the benefit of the recommendation of the Pay Commission as contained in paragraph 17.3 of the report extracted above.

6. Under paragraph 17.3, the benefits recommended will be available to employees retiring during the period, January 1, 1986 to September 30, 1986. So the employees retiring on January 1, 1986 will be entitled to the benefit under paragraph 17.3. The question that arives for our consideration is whether the petitioner has retired oil January 1, 1986. We have already extracted the order of this Court dated December 6, 1985 whereby the petitioner was permitted to retire voluntarily from the service of the Registry of the SC with effect from the forenoon of January 1, 1986. It is true that in view of the proviso to rule 5(2) of the Rules, the petitioner will not be entitled to any salary for the day on which he actually retired. But, in our opinion. that has no bearing on the question as to the date of retirement. Can be said that the petitioner retired on December 31, 1985? The answer must be in the negative. Ind