1997 JTR(SC) 746
1997 AIR(SC) 2388 ; 1997 AIR(SCW) 2298 ; 1997 5 JT 26 ; 1997 LIC 2333 ; 1997 2 LLJ 357 ; 1997 4 LLN 549 ; 1997 3 RSJ 293 ; 1997 3 Scale 708 ; 1997 4 SCC 569 ; 1997 SCC(L&S) 1153 ; 1997 3 SCR 1027 ; 1997 2 SCT 745 ; 1997 2 SLR 647 ; 1997 1 UJ 710 ; 1997 KHC 863 ; 1997 4 Supreme 329
1997(4) Supreme 329
SUPREME COURT OF INDIA
K. Ramaswamy, G.T. Nanavati and K. Venkataswami, JJ.
State of Punjab -Appellant
versus
Justice S.S. Dewan (Retired Chief Justice) & Ors. -Respondents
Civil Appeal No. 506 of 1992
Decided on 25-4-1997
Counsel for the Parties :
For the Appellant : Manoj Swarup, Advocate (N/P).
For the Respondent : K.C. Dua, Advocate.
IMPORTANT POINT :
The object of the amendment to rule 16 of the Punjab Superior Judicial Service Rules, 1963, a being to introduce a new retiral benefit its benefit would be available to only those direct recruits who reited after it has come into force.
Act
Referred
:ALL INDIA SERVICES DEATH-CUM-RETIREMENT BENEFITS RULES : R.8
HIGH COURT JUDGES CONDITIONS OF SERVICE ACT : Part.2, Sch.1 Part.3
PUNJAB SUPERIOR JUDICIAL SERVICE RULES : R.16
(A) The All India Services Death-cum-Retirement Benefits Rules, 1958, as amended, along with Rule 8 thereof, operate as the central pension-determination framework for members of the All India Services. The High Court Judges (Conditions of Service) Act, 1954 read with its First Schedule Part III and the Punjab Superior Judicial Service Rules, 1963 provide the service-specific implementation matrix. The amendment to Rule 16 of the Punjab Superior Judicial Service Rules on 22.2.1990 introduced a new scheme by substituting the All India Services Rules with the Punjab Civil Service Rules, Volume II, and, crucially, added the actual period of practice at the Bar (up to ten years) to qualifying service for direct recruits. This change in the basis for calculating qualifying service, effective post-22.2.1990, was held not to be a mere liberalisation of the existing pension formula but the introduction of a new retiral benefit attracting a cut-off date. Rule 16, therefore, cannot be applied retrospectively to retirees who ceased to be in service before the amendment, and the benefit under the amended rule is confined to direct recruits retiring thereafter.
(B) Pension is a reward for past service determined by length of service and last pay-drawn; any upward revision of the pension scheme operates retrospectively only if it is a liberalisation of the existing formula. Where the change constitutes the introduction of a new retiral benefit, the principle of equality under Article 14 does not require identical treatment between pre- and post-revision retirees. A revised pension scheme with a reasonable cut-off date is sustainable under Article 14 if the classification is rational and the benefit is not available to all retirees indiscriminately.
Facts of the case:
A retired Chief Justice of the Punjab and Haryana High Court, enrolled as an advocate in 1959 and appointed as District and Sessions Judge in 1968, elected to compute his pension under Part III of the First Schedule to the High Court Judges (Conditions of Service) Act, 1954, with the Punjab Superior Judicial Service Rules, 1963 governing his service. His pension was initially computed under the then extant Rule 16, which referred to the All India Services (Death-cum-Retirement Benefits) Rules, 1958. On 22.2.1990, Rule 16 was amended to provide that direct recruits to the service would have up to ten years of practice at the Bar added to their qualifying service and that the rules governing such benefits would be the Punjab Civil Service Rules. The State Government took the position that the amended rule would apply only to retirees after 22.2.1990, a view upheld by the State. The High Court, however, allowed the writ petition and directed refixation of pension with effect from 22.2.90, a decision set aside on appeal.
Findings of Court:
The Supreme Court held that the amended Rule 16 created a new retiral benefit confined to direct recruits retiring after 22.2.90. The change was not a liberalisation of the existing pension scheme but an introduction of a new benefit dependent on the period of practice at the Bar, which was previously irrelevant. Consequently, the principle in D.S. Nakaras case did not apply, and the retrospective application of the amended rule was not warranted. The Court also relied on the principle that a revised post-retirement benefit scheme with a reasonable cut-off date need not extend benefits to all retirees irrespective of the date of superannuation.
Issues:
Whether an amendment to Rule 16 of the Punjab Superior Judicial Service Rules introducing practice at the Bar as a factor for determining qualifying service and governed by the Punjab Civil Service Rules is applicable to a retiree who retired prior to the amendment date. Whether such amendment represents a liberalisation of the existing pension scheme or the introduction of a new retiral benefit, and whether it can be applied retrospectively without violating Article 14 of the Constitution.
Ratio Decidendi:
The amended Rule 16 constitutes a new retiral benefit, not a liberalisation of the existing pension scheme, because it introduces a new determinantactual period of practice at the Barfor calculating qualifying service. As a new benefit, it cannot be applied retrospectively to retirees who ceased service before the amendment, and its benefit is confined to direct recruits retiring after the cut-off date of 22.2.90.
Result:
The appeal is allowed, the judgment of the High Court is set aside, and the writ petition is dismissed with no order as to costs.
(A) The All India Services Death-cum-Retirement Benefits Rules, 1958, as amended, along with Rule 8 thereof, operate as the central pension-determination framework for members of the All India Services. The High Court Judges (Conditions of Service) Act, 1954 read with its First Schedule Part III and the Punjab Superior Judicial Service Rules, 1963 provide the service-specific implementation matrix. The amendment to Rule 16 of the Punjab Superior Judicial Service Rules on 22.2.1990 introduced a new scheme by substituting the All India Services Rules with the Punjab Civil Service Rules, Volume II, and, crucially, added the actual period of practice at the Bar (up to ten years) to qualifying service for direct recruits. This change in the basis for calculating qualifying service, effective post-22.2.1990, was held not to be a mere liberalisation of the existing pension formula but the introduction of a new retiral benefit attracting a cut-off date. Rule 16, therefore, cannot be applied retrospectively to retirees who ceased to be in service before the amendment, and the benefit under the amended rule is confined to direct recruits retiring thereafter.
(B) Pension is a reward for past service determined by length of service and last pay-drawn; any upward revision of the pension scheme operates retrospectively only if it is a liberalisation of the existing formula. Where the change constitutes the introduction of a new retiral benefit, the principle of equality under Article 14 does not require identical treatment between pre- and post-revision retirees. A revised pension scheme with a reasonable cut-off date is sustainable under Article 14 if the classification is rational and the benefit is not available to all retirees indiscriminately.
Facts of the case:
A retired Chief Justice of the Punjab and Haryana High Court, enrolled as an advocate in 1959 and appointed as District and Sessions Judge in 1968, elected to compute his pension under Part III of the First Schedule to the High Court Judges (Conditions of Service) Act, 1954, with the Punjab Superior Judicial Service Rules, 1963 governing his service. His pension was initially computed under the then extant Rule 16, which referred to the All India Services (Death-cum-Retirement Benefits) Rules, 1958. On 22.2.1990, Rule 16 was amended to provide that direct recruits to the service would have up to ten years of practice at the Bar added to their qualifying service and that the rules governing such benefits would be the Punjab Civil Service Rules. The State Government took the position that the amended rule would apply only to retirees after 22.2.1990, a view upheld by the State. The High Court, however, allowed the writ petition and directed refixation of pension with effect from 22.2.90, a decision set aside on appeal.
Findings of Court:
The Supreme Court held that the amended Rule 16 created a new retiral benefit confined to direct recruits retiring after 22.2.90. The change was not a liberalisation of the existing pension scheme but an introduction of a new benefit dependent on the period of practice at the Bar, which was previously irrelevant. Consequently, the principle in D.S. Nakaras case did not apply, and the retrospective application of the amended rule was not warranted. The Court also relied on the principle that a revised post-retirement benefit scheme with a reasonable cut-off date need not extend benefits to all retirees irrespective of the date of superannuation.
Issues:
Whether an amendment to Rule 16 of the Punjab Superior Judicial Service Rules introducing practice at the Bar as a factor for determining qualifying service and governed by the Punjab Civil Service Rules is applicable to a retiree who retired prior to the amendment date. Whether such amendment represents a liberalisation of the existing pension scheme or the introduction of a new retiral benefit, and whether it can be applied retrospectively without violating Article 14 of the Constitution.
Ratio Decidendi:
The amended Rule 16 constitutes a new retiral benefit, not a liberalisation of the existing pension scheme, because it introduces a new determinantactual period of practice at the Barfor calculating qualifying service. As a new benefit, it cannot be applied retrospectively to retirees who ceased service before the amendment, and its benefit is confined to direct recruits retiring after the cut-off date of 22.2.90.
Result:
The appeal is allowed, the judgment of the High Court is set aside, and the writ petition is dismissed with no order as to costs.
JUDGMENT
Nanavati, J.-The respondent who retired as the Chief Justice of the High Court of Punjab and Haryana on 31.12.89 was enrolled as an advocate on 27.1.59, appointed as District and Sessions Judge on 20.11.68 and then as a Judge and the Chief Justice of Punjab and Haryana High Court on 14.12.77 and 4.10.89 repectively. On his retirement he elected for computation of his pension under Part III of the Ist Schedule to the High Court Judges (Conditions of Service) Act, 1954. According to the provisions contained in Part III, pension of the Judge has to be determined in accordance with the rules of his service. The rules which applied to his are the Punjab Superior Judicial Service Rules, 1963. His pension was, therefore, fixed in accordance with the said rules. On 20.2.90, Rule 16 of the said Rules was amended by the Government of Punjab and it was provided that in case of a direct recruit to the Punjab superior Judicial Service the actual period of practice at the bar not exeeding 10 years shall be added to his service qualifying for superannuation pension and other retirement benefits. In view of this amendment the respondent claimed that being a direct recruit to the punjab Superior Judicial Service he was entitled to additiona of actual period of practice at the bar not exceeding 10 years to his qualifying service and, therefore, his pension and other retirement benefits have to be refixed. The High Court, in its turn, wrote to the Accountant General on 5.6.90 for refixation of his benefit of the amendment. The Accountant general, it appears, was not inclined to agree with this claim and, therefore, referred the matter to the State Government for correct interpretation of the rule. On 25.2.91 the State Government decided that the notificaiton dated 22.2.90 has only prospective effect and, therefore, benefit of the amended Rule 16 cannot be given to the respondent. He, therefore, filed a writ petition in the high Court inter alia praying that the Union of India and the State Government be directed to given benefit of the amended Rule 16 of him and to compute his pension afresh in accordance with the said provision. The stand taken by the Under of India was that it was not really concerned with the subject-matter of the petition and that it pertained to the State of Punjab. The State contended that the amended rule applies to those only who retired after 22.2.90.
2. The learned Single Judge following the judgment of this Court in D.S. Nakara and Others v. Union of India1, held that all retired judges irrespective of the date of retirement constitute one class and the benefits available under the amended rule cannot be confined to the judges who retired after the amendment. He, therefore found the action of the State of Punjab as illegal, allowed the petition and directed the State of Punjab to refix pension of the respondent inaccordance with the amended rule with effect from 22.2.90 and to pay the arrears with interest at the rate of 18 per cent per annum. The State of Punjab filed a letters patent appeal. The Division bench of the High Court dismissed it with a clarification that the prayer being retricted only to pension and not to other retirement benefits, the order passed by the learned Single Judge should be read a sconfined to grant of pension only. The State has, therefre, filed this appeal.
3. The only controversy in this appeal is whether the High Corut was right in directing refixation of pension of the respondent in accordance with amended Rule 16. The respondent, having retired as a Judge of a High Court and having elected to receive pension payable under Part III of the First Schedule to the Act his entitlement was as provided in paragraph 2 of that Schedule, which reads as under :
"2. The pension payable to such a Judge shall be-
(a) the pension to which he is entitled under the ordinary rules of his service if he had not been appointed a Judge, his service as a Judge being treated as Service therein for the purpose of calculating that pension; and
(b) .... .... .... ...."
4. It is not in dispute that he being a member of the Punjab Superior Judicial Service the Punjab Superior Judicial Service Rules, 1963 applied to him. Rule 16 of the said Rules at the time of his retirement provided as under :-
"16. Death-cum-Retirement Benefits:-In respect of death-cum-retirement benefits the members of the service shall be governed by the all India Service (Death-cum-Retirement Benefits) Rules, 1958, as amended from time to time."
5. Rule 8 of the All India Services Rules, inter alia, provides that qualifying service of a member of the Service for pruposes of those Rules begins from the date of his substantive appointment to the Service. It is also not in dispute that pension of the respondent was calculated and paid accordingly. On February 22, 1990 Rule 16 was amended and since then it is as quoted below :-
"16. Death-cucm-retirement benefits:-In respect of death-cum-retirement benefits the members of the service shall be government by the Punjab Civil Services Rules, Volume II as amended from time to time.
Provided that in the case of a direct recruit to this service, the actual period of practice at Bar not exceeding ten years, shall be added to his service qualifying for superannuation pension and other retirement benefits."
6. The change brought about by the amendment is that whereas in respect of death-cum-retirement benefits members of the Punjab Superior Judicial Service were earlier governed by the All India Service (death-cum-retirement benefits) Rules, now they are governed by the Punjab Civil Service Rules, Moreover, now in the case of a direct recruit to the Punjab Superior Judicial Service the actual period of practice at the Bar not exceeding 10 years has to be added to his service for the purpose of determining the qualifying service. Formerly, that is, prior to 22.2.1990, qualifying service of a member of the Punjab Superior Judicial Service was the length of service rendered by him as a member of the Punjab Superior Judicial Service and also as a Judge of the High Court, if he was elevated to that position before retirement. Even in case of a direct recruit to that Service his standing at the Bar was irrelvant but now that period has to be added for determining the qualifying service. Obviously, this enlargement of the period of qualifying service would lead to an increase in the uantum of pension. This has been regarded by the High Court and as contended by the respondent, liberalisation of the pension scheme. For that reason, it further held that benefit of a rule liberalising pension cannot be restricted to persons retireing subsequently that is after the date of such liberlisation otherwise it would amount to vicious discrimination violative of Article 14 of the Constitution. The High Court has also held that there is nothing in the language of the Rule to suggest that the benefit conferred by it is confined to the persons retiring after February 22, 1990.
7. Therefore, what we have to consider is : What is the nature of the change made by the amendment ? It is by way of upward revision of the exixting pension scheme? then obviously the ratio of the decision in D.S. Makara s case would apply. If it is held to be a new retiral benefit or a new scheme then the benefit of it cannot be extended to those who retired earlier.
8. Conceptually, pension is a reward for past service. It is detemined on the basis of length of service and last pay-drawn. Length of service is determinative of aeligibility and the quantum of pension. The formula adopted for determining last average emoluments drawn has an impact on the quantum of pension. In D.S. Nakara s case (supra) the change in the formula of determining average emoluments by reducing 36 months service to 10 months service as measure of pension, jmade with a view to giving a higher average, was regarded as liberalisation or upward revision of the existing pension scheme. On the basis of the same reasoning it may be said that any modification with respect to the other determinative factor, namely, qualifying service made with a view to make it more beneficial in terms of quantum to pension can also be regarded as liberalisation or upward revision of the existing pension scheme. If, however, the change is not confined to the period of service but extends or relates to a period anterior to the joining of service then it would assume of a different character. Then it is not liberalisation of the existing scheme but introduction of a new retiral benefit. What has been done by amending Rule 16 is to make the period to practice at the Bar, which was otherwise irrelevant for determining the qualifying service, also relevant for that purpose. It is a new concept and a new retiral benefit. The object of the amendment does not appear to be to go for liberalisation. The purpose for which it appears to have been made is to make it more attractive for those who are already in service so that they may not leave it and for new entrants so that they may betempted to join it. Though Rule 16 does not specifically state that the amended rule will apply only to those who retired after 22.2.90, the intention behind it clearly appears to be to extend the new benefit to those only who retired after that date. For these reasons the principle laid down in D.S. Nakara s case (supra) that if pensioners form a class computation of their pension cannot be by different formula affording unequal treatment merely on the ground that some retired eaelier and some retired later, will have no application to a case of this type. Therefore, on both the grounds the High Court was in error in applying the ratio of the decision in D.S. Nakara s case (supra) to this case. As rigtly contended on behalf of the Stae, benefit of the amendment wouldbe available to only those direct recruits who retiredafter it has come into force.
9. The following observations made by this court in Union of India v. P.N. Memon2, also to some extent support the view that we are taking :
"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 constarints, 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 implementedwith 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. It shall not amount to "picking out a date from the hat", as was said by this Court in the case of D.R. Nim v. Union of India in connection with fixation of seniority. Whenever a revision taken place, a cut-off date becomes imperative because the benefit has to be allowed within the financial resources available with the Government."
10. We, therefore, allow this appeal, set aside the judgment and order passed by the High Court and dismiss the writ petition filed by the respondents. In view of the facts and circumstances of the case there shall be no order as to costs.
Appeal allowed.
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