Supreme Court Judgments
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Ray,
G.N. (J) Ray, G.N. (J) Sawant, P.B.
CITATION:
1995 SCC (2) 117 JT 1995 (1) 315 1995 SCALE (1)40
ACT:
HEAD NOTE:
1.
Special leave granted.
2. In
this appeal a Division Bench decision of the Rajasthan High Court dated
December 21, 1989 striking down the date i.e. February 29, India (AIR 1983 SC 130). are ben- efit's case.th February,- under. An option once exercised shall be final. Persons
who fail to exercise option will be deemed to have elected the benefits under
this Chapter.
318
 counter-signed by the Head of
the office and pasted in the Service Book of the Officer concerned."
5. It
appears that after the formation of the State of Rajasthan, Rajasthan State
Service Rules came into force w.e.f. April 1, 195 1.H relating
to the New Family Pension Scheme came into force w.e.f March 1, 1964 by
insertion of the said Chapter XXIII-A vide F.D. Notification No.1(12)FDE- R/64
dated September 25, March
1, Ser- vice Rules,
in substitution of the existing family pension benefits as admissible under
Chapter XXIII, or to retain their existing benefits. On January 4, upto the
death or re-marriage, whichever is earlier, in the case of widows and the date
of attaining majority in the case of children and until marriage, if earlier,
in case of daughters.
8. The
State of Rajasthan further liberalised the existing provisions contained 319 in
Chapter XXIII by providing relief to the widows of government
servants/pensioners who expired before March 1, 1964 and ceased to draw their
family pension in terms of the Chapter XXIII of Rajasthan Service Rules. For
such pensioners, the State Government allowed family pension w.e.f March 1, 1978,
9. On
April 1, 1988, the State Government extended the benefits of the provisions of
new Family Pension Rules, 1964 as contained in Chapter XXIII-A of the Rajasthan
Service Rules w.e.f April 1, 1988 to the widows of government ser- vants of pensionable
establishments who retired or died before March 1, 1964 or who opted for the
family pension benefits as admissible under Chapter XXIII of Rajasthan Service
Rules. servant's dependent
January 4, December 31,
1982, the benefit of ex-gratia pension to families of those government servants
who retired before March 1, March 1, 1964 and covered by
the provisions contained in Chapter XXIII of the Rajasthan Service Rules 320 by
extending the benefit of new Family Pension Rules contained in Chapter XXIIIA w.e.f
April 1, 1988 vide order dated July 18, 1988, that the said Writ Petition was
filed by the respondent making a belated grievance regarding Rule 268-1-1.
14. Mr.Gupta
has contended that the Writ Petition was filed by D.S.Nakara and others
challenging the validity of the of- fice Memorandum No.F. 19(3)-EV-79 dated May
25, 1979 issued by the Government of India, Ministry of Finance whereby the
formula of computation of pension was liberalised and it was made applicable
only to those government servants who were in service on March 31, 1979 and
retired from service on or after that date. By the's case (supra), Mr.Gupta
has contended that the questions formulated by this Court in the said case were
to the following effect :- "(i) Do pensioners entitled to receive su- perannuation
or retiring pension under Civil Services(Pension) Rules, 1972, form a class as
a whole? (ii)Is the date of retirement a relevant consideration for eligibility
when a revised formula for computation of pension is ushered in and made
effective from a specified date? (iii)Would differential treatment to pen- sioners
related to the date of retirement qua the revised formula for computation of
pension attract Article 14 of the Constitution and the element of
discrimination is liable to be declared unconstitutional as being violative of
Article 14.
16.It
has been held by this Court in the decision in D.S.Nakara's case that :
(a) that
pensioners entitled to receive su- per un- constitutional and as such should
be struck down.
17. de- fined in the Scheme." It has
also been held in the said decision that :
"only
the pension will have to be recomputed in the light of the formula enacted in
the liberalised pension scheme and effective from the date the revised Scheme
321.
(Emphasis
supplied)
18. Mr.Gupta
has contended that the member"s of the respondent-Association were
governed by the provisions of rules contained in ChapterIII-A was not introduced in substitution of the
existing provision of family pension rules as on March 1, 1964. Hence, the decision rendered in D.S.Nakara's caseIII-A's case. Mr.Gupta
has referred to the Constitution Bench decision of this Court in Krishna Kumar
etc. v. Union of India and others ( 1990 (4) SCC 207). In this case, this Court
has pointed out that in the decision in D.S.Nakara's case,rishna Kumar's
case, this Court pointed out that the employees retiring prior to April 1, 1977 and those retiring thereafter were
governed by different sets of rules. Accordingly, different pension schemes
were permissible for the said two classes of government servants.
19. Mr.Gupta
has also referred to another Constitution Bench decision of this Court in
Indian Ex-Services League and others v. Union of India (AIR 1991 SC 1182). In
the said case, retirees of Armed Force prior to April 1, 1979 claimed same
benefit by contending that there should be one pension for one rank and they
relied on the decision rendered in Nakara's case. This Court considered the
import of the decision rendered in Nakara's case and pointed out that the
decision in D.S.Nakara's case 322 in State of Rajasthan v. Rajasthan
Pensioner Samaj (AIR 1991 SC 1743). In the said case, this Court considered
whether contributory provident fund retirees and the employees opting for
pension scheme form one class or they can be treated differently. This Court
has held in the said de- cision that the decision in Nakara's case.
20. Mr.Gupta
has, therefore, submitted that the ratio of the decision in Nakara's case has been
noticed by this Court in the aforesaid decisions and it has been clearly
indicated that the scope and ambit of the decision in Nakara's case should not
be extended and the said decision does not cover the case of the government
employees who are governed by two different sets of retiral benefit rules. Mr.Gupta
has sub- mitted.
21. Mr.Surya
Kant, learned counsel for the respondent has submitted that after the
Notification dated April 1, 1988 the benefit under Chapter XXIII-A has also
been made applicable to the government servants or the family members who had
retired prior to 29.2.1964. But upto April 1, 1988, the government servants or
their family members were deprived of the liberalised pension scheme under
Chapter XXIII-A because of the words appearing in Rule 268-h to the following effect
: 'in service on 29th February, 1964 who is'.III any thing gov- 323 ernment
servants who were in service on 29.2.1964. Mr.Surya Kant has submitted that
except that the date 29.2.1964 coin- cides with the date on which the rule 268H dis- missed.
23.'s case. This court has noticed the ratio in D.S.Nakara's
case as indicated in Krishna Kumar's case (supra) and in Indian Ex-Services
League's case (supra) and also in Rajasthan Pensioners Samajs case (supra), it
has been clearly indicated by this Court that the government servants can be
governed by different sets of retiral benefit rules with a reference to their
holding of office from a cut off date. In Krishna Kumar's case, it has been
indicated that in D.S.Nakara's's case that
specification of the date from which the liberalisation pension rules were to
come into force was arbitrary. This Court, in D.S.Nakara's case, clearly
indicated that it was not a new scheme but only a revision of the existing
scheme and it was not a new retiral benefit but it was a case of upward
revision of existing benefit. In D.S.Nakara's case, it was pointed out that if
it was wholly a new concept, a new retiral benefit, one could have appreciated
an argument that those who had already retired could not expect it. The
Constitution Bench in Krishna Kumar's case has upheld different sets of retiral
benefits being made applicable to the employees retiring prior to April 1, 1977
and retiring thereafter. It has been indicated by the Constitution Bench in
Krishna Kumar's case. 324
24. In
the instant case, the date 29.2.1964 with effect from March,
1964.
25. consider- ation of the State Government. The
wisdom in a policy decision of the Government, as such, is not justiceableartered ocean of public policy.
26. It
does not appear to us that the cut off date mentioned in Rule 268-H was only an
ipsirishna Kumar's case, Indian Ex-Services League's case and
Rajasthan Pensioners Samaj's case. Rule 268-H cannot, therefore, be held violative
of Article 14 of the Constitution as indicated in the impugned decision of
Rajasthan High Court. We, therefore, allow this appeal and set aside the
impugned decision rendered by the Rajasthan High Court.
27. Before
we conclude, we may indicate that the State Government of Rajasthan has given
the benefit of the liberalised pension scheme under Rule 268-H from 1988 to the
pensioners even if the concerned government servant 29.2.1964,
particularly the widows and dependent 29.2.1964 will review the
question of antidating the benefits under Rule 268-H to such retirees after
taking into consideration all relevant factors. With this observation, the
appeal is allowed without any order as to costs.
361
having regard to the fact that the amount concerned herein is very small and
also because the company is already under liquidation for a number of years,
this Court may not interfere with the orders of the High Court even though it
may declare the law correctly. But this is a case where as a result of our
order, the assesses is not being asked to refund any amount which has already
been received by it; it would only be disabled from claiming any further amount
from the Revenue. In such a case, we see no reason to adopt the course
suggested by learned counsel, assuming that such a course is permissible in
law, upon which aspect we express no opinion.
9.For
the above reasons the appeal is allowed, the Judgment of the High Court is set
aside and the order of the Commis- sioner of Income-tax is restored. No costs.
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