Commander Head Quarter, Calcutta and Others Vs. Capt. Biplabendra Chanda

Appeal: Civil Appeal No. 14172 of 1996.
(Arising Out of S.L.P. (c) No. 11208 of 1995)
(From the Judgment and Order dated 6.7.1994 of the Calcutta High Court in F.M.A.T. No. 2419 of 1992)

Petitioner: Commander Head Quarter, Calcutta and Others

Respondent: Capt. Biplabendra Chanda

Apeal: Civil Appeal No. 14172 of 1996.
(Arising Out of S.L.P. (c) No. 11208 of 1995)
(From the Judgment and Order dated 6.7.1994 of the Calcutta High Court in F.M.A.T. No. 2419 of 1992)

Judges: B.P JEEVAN REDDY & SUHAS C. SEN, JJ.

Date of Judgment: Nov 05, 1996

Mr. P.P. Malhotra, Senior Advocate (Wasim A. Qadri and Ms. Anil Katiyar, Advocates, with him) for the Appellants.

Mr. Bijan Ghosh, Advocate, for the Respondent.

SERVICE AND LABOUR LAW

Constitution of India – Articles 14, 16 and 136 – Pension – Retirement on 18.5.82 – Retiree not found eligible for pension under existing Rules – Revision of Rules from 1.1.1986 – Claim of pension on basis of revised Rules, on basis of discrimination and arbitrariness – Justification – Held that unlike D.S Nakara’s case prescription of date is neither arbitrary nor unreasonable. The retiree cannot stake claim on basis of revised Rules as he had not been found eligible and he cannot be made eligible retrospectively.

We are of the opinion that the ratio of D.S Nakara has no application here. D.S. Nakara prohibits discrimination between pensioners forming a single class and governed by the same Rules. It was held in that case that the date specified in the libera-lised pension Rules as the cut-off date was chosen arbitrarily. That is not the case here. No pension was granted to the respond-ent because he was not eligible therefor as per the Rules inforce on the date of his retirement. The new and revised Rules inforce on the date of his retirement. The new and revised Rules (it is not necessary for the purpose of this case to go into the ques-tion whether the Rules that came into force with effect from January 1, 1986 were new Rules or merely revised or liberalised Rules) which came into force with effect from January 1, 1986 were not given retrospective effect. The respondent cannot be made retrospectively eligible for pension by virtue of these Rules in such a case. This is not a case where a discrimination is being made among pensioners who were similarly situated. Accepting the respondent’s contention would have very curious consequences; even a person who had retired long earlier would equally become eligible become eligible for pension on the basis of the 1986 Rules. This cannot be.

The decision in D.S Nakara has indeed been explained by two subsequent Constitution Bench decisions of this Court in Krishna Kumar & Ors. v. Union of India & Ors. JT 1990 (3) SC 173 = 1990 (4) S.C.C. 207 and India Ex-Services League & Ors. etc. v. Union of India & Ors. etc. JT 1991 (1) SC 243 = 1991 (1) S.C.R. 158. In the latter decision it has been held that “the petitioners’ claim that all pre-1.4.1979 retirees of the Armed Forces are entitled to the same amount of pension as shown in appendices ‘A’, ‘B’ and ‘C’ for each rank is clearly untenable and does not flow form the Nakara decision”.We may also refer in this connection to the observations in another decision of this Court in state of West Bengal v. Ratan Behari Dev JT 1993 (4) SC 501 = 1993 (4) S.C.C. 62 to the following effect:

“…..it is open to the State or to the Corporation, as the case may be, to change the conditions of service unilaterally. Terminal benefits as well as pensionary benefits constitute conditions of service. The employer has the undoubted power to revise the salaries and/or the pay scales as also terminal benefits/pensionary benefits. The power to specify a date from which the revision of pay scales or terminal benefits/pension-ary benefits, as the case may be, shall take effect is a con-comitant of the said power. So long as such date is specified in a reasonable manner, i.e., without bringing about a discrim-ination between similarly situated persons, no interference is called for by the court in that behalf…..the power of the State to specify a date with effect from which the Regulations framed, or amended, as the case may be, shall come into force is unquestioned. A date can be specified both prospectively as well as retrospectively. The only question is whether the prescription of the date is unreasonable or discriminatory. Since we have found that the precription of the date in this case is neither arbitrary nor unreasonable, the complaint of discrimination must fail.” (Para 4 & 5)

1. M.C. Dhingra v. Union of India & Ors. JT 1996 (2) SC 463 = 1996 (7) SCC 564 (Para 6)
2. State of West Bengal v. Ratan Behari Dev JT 1993 (4) SC 501 = 1993 (4) S.C.C. 62 (Para 5)
3. India Ex-Services League & Ors. etc. v. Union of India & Ors. etc. JT 1991 (1) SC 243 = 1991 (1) S.C.R. 158.(Para 5)
4. Krishna Kumar & Ors. v. Union of India & Ors. JT 1990 (3) SC 173 = 1990 (4) S.C.C. 207 (Para 5)
5. D.S Nakara & Ors. v. Union of India (1983 (2) S.C.R. 165) (Para 3)

O R D E R
1. Heard the counsel for both the parties.
2. Leave granted.
3. This appeal is preferred against the judgment of a Division Bench of the Calcutta High Court dismissing the writ appeal preferred by the appellants. The respondent was a Commissioned Officer. He retired on May 18,1982. According to the Rules then in force, only 2/3rd of the pre-commissioned service was allowed to be counted towards qualifying service for earning pensionary benefits. A minimum period of qualifying service was also provid-ed for becoming eligible for pension. On the basis of the said Rule, the respondent was found ineligible for grant of pension and accordingly no pension was granted to him. About four year’ later, the Rules relating to qualifying service were changed (with effect from January 1, 1986) based upon the recommendations of the Fourth pay Commission. One of the features of these Rules was that full pre-commissioned service was to be taken into count for working out the qualifying service required for earning pensionary benefits. In other words, whereas previously only 2/3rd of the precommissioned service was to be taken into count for determining the eligibility and the quantum of pension, the entire precommissioned service could be taken into count as per the Rules which came into force with effect from January 1, 1986. The respondent laid a claim for grant of pension on the basis of the said new Rules or revised Rules, as they may be called. That was denied whereupon he approached the High Court by way of a writ petition. The learned Single judge allowed the writ petition relaying upon the decision of this Court in D.S Nakara & Ors. v. Union of India (1983 (2) S.C.R. 165), which order has been af-firmed by the Division Bench.
4. We are of the opinion that the ratio of D.S Nakara has no application here. D.S. Nakara prohibits discrimination between pensioners forming a single class and governed by the same Rules. It was held in that case that the date specified in the libera-lised pension Rules as the cut-off date was chosen arbitrarily. That is not the case here. No pension was granted to the respond-ent because he was not eligible therefor as per the Rules inforce on the date of his retirement. The new and revised Rules inforce on the date of his retirement. The new and revised Rules (it is not necessary for the purpose of this case to go into the ques-tion whether the Rules that came into force with effect from January 1, 1986 were new Rules or merely revised or liberalised Rules) which came into force with effect from January 1, 1986 were not given retrospective effect. The respondent cannot be made retrospectively eligible for pension by virtue of these Rules in such a case. This is not a case where a discrimination is being made among pensioners who were similarly situated. Accepting the respondent’s contention would have very curious consequences; even a person who had retired long earlier would equally become eligible become eligible for pension on the basis of the 1986 Rules. This cannot be.
5. The decision in D.S Nakara has indeed been explained by two subsequent Constitution Bench decisions of this Court inKrishna Kumar & Ors. v. Union of India & Ors. JT 1990 (3) SC 173 = 1990 (4) S.C.C. 207 and India Ex-Services League & Ors. etc. v. Union of India & Ors. etc. JT 1991 (1) SC 243 = 1991 (1) S.C.R. 158. In the latter decision it has been held that “the petitioners’ claim that all pre-1.4.1979 retirees of the Armed Forces are entitled to the same amount of pension as shown in appendices ‘A’, ‘B’ and ‘C’ for each rank is clearly untenable and does not flow form the Nakara decision”.We may also refer in this connection to the observations in another decision of this Court in State of West Bengal v. Ratan Behari Dev JT 1993 (4) SC 501 = 1993 (4) S.C.C. 62 to the following effect:
“…..it is open to the State or to the Corporation, as the case may be, to change the conditions of service unilaterally. Terminal benefits as well as pensionary benefits constitute conditions of service. The employer has the undoubted power to revise the salaries and/or the pay scales as also terminal benefits/pensionary benefits. The power to specify a date from which the revision of pay scales or terminal benefits/pension-ary benefits, as the case may be, shall take effect is a con-comitant of the said power. So long as such date is specified in a reasonable manner, i.e., without bringing about a discrim-ination between similarly situated persons, no interference is called for by the court in that behalf…..the power of the State to specify a date with effect from which the Regulations framed, or amended, as the case may be, shall come into force is unquestioned. A date can be specified both prospectively as well as retrospectively. The only question is whether the prescription of the date is unreasonable or discriminatory. Since we have found that the precription of the date in this case is neither arbitrary nor unreasonable, the complaint of discrimination must fail.”
6. The learned counsel for the respondent relied upon a recent decision of this Court in M .C Dhingra v. Union of India & Ors. JT 1996 (2) SC 463 = 1996 (7) SCC 564 but that was also a case where a distinction was sought to be made between the same class of pensioners. The said decision, therefore, cannot come to the rescue of the respondent.
7. For the above reasons, this appeal is allowed. The judgment of the Division Bench of the High Court affirming the decision of the learned Single Judge is set-aside. The writ petition filed by the respondent is dismissed. No costs.