Union Of India vs P.A. Rosha
2011 Latest Caselaw 5774 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of decision: 28th November, 2011.

+                        W.P.(C) 2856/2011

%      UNION OF INDIA                                     .......Petitioner
                    Through:           Mr. MK. Bhardwaj, Adv.

                                    Versus
       P.A. ROSHA                                          ..... Respondent
                         Through:      Mr. Anil Mittal, Adv.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                                JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the order dated 11.11.2010 of the Central

Administrative Tribunal allowing OA No.1508/2010 preferred by the

respondent under Section 19 of the Administrative Tribunals Act, 1985 and

directing the petitioner to extend the benefit of amended (with effect from

14.09.1983) Rule 8(9) of the All India Services (Death-Cum-Retirement

Benefits) Rules, 1958 to the respondent and fix the pension of the

respondent from the said date on the basis of 33 years of qualifying service.

The respondent was also held eligible for interest at the rate of 6% per

annum on the arrears of pension. The petition also impugns the order dated

21.04.2011 of the Tribunal dismissing the review application filed by the

petitioner.

2. The respondent was an Officer of the 1948 batch of the Indian Police

Service (IPS) who retired on 30.06.1981. The OA was filed by him

assailing the order dated 05.04.2010 of the Ministry of Home Affairs

rejecting his representation claiming benefit of the amendment supra. The

respondent, at the time of retirement on superannuation, had completed

qualifying service of 32 years 9 months and 16 days. The amendment to the

Rule provided for the qualifying service to be calculated in six monthly

periods with a fraction of less than three months to be not taken into account

and any period between three months and six months to be treated as six

monthly period in calculating the total qualifying service. It is not in

dispute that if the said amendment were to be applied to the respondent his

qualifying service for computation of pension would be counted as 33 years.

3. The Tribunal relying on UOI Vs. SPS Vains (Retd.) (2008) 9 SCC

125 upheld the claim of the respondent.

4. The contention of the petitioner is that the amendment was

prospective and not applicable to those government servants such as the

respondent who retired before 14.09.1983. It is also contended that SPS

Vains (supra) was a case of revision of pensionary benefits and is not

applicable to the facts of the present case. It is yet further contended that the

claim of the respondent was barred by time. The Tribunal has also recorded

that the counsel for the petitioner herein had conceded the matter to be

covered by SPS Vains. The said part of the order is also challenged. It is

contended that no such concession was made and rather it was the

contention of the counsel for the petitioner that the matter is not covered by

SPS Vains but by UOI Vs. P.N. Menon JT 1994 (3) SC 26.

5. We may mention that the Supreme Court in D.S. Nakara Vs. UOI

(1983) 1 SCC 305 finding the increased liability on the government to be not

too high to be unbearable or such as would have detracted the Government

from covering the old pensioners under the new scheme observed that

homogenous class cannot be divided when there was no discernible rational

principle and struck down the eligibility for liberalized pension scheme of

"being in service on the specified date and retiring subsequent to that date"

as violative of Article 14 and unconstitutional. We have satisfied ourselves

that the additional financial burden on the petitioner in complying with the

impugned order will be minimal. The Supreme Court again in V. Kasturi

Vs. Managing Director, SBI (1998) 8 SCC 30 held that if the person

retiring is eligible for pension at the time of his retirement and if he survives

till the time of subsequent amendment of the relevant pension scheme, he

would become eligible to get enhanced pension or would become eligible to

get more pension as per the new formula of computation of pension

subsequently brought into force as he would be a member of the very same

class of pensioners and such benefit cannot be denied to him on the ground

that he had retired prior to the date on which the additional benefit was

conferred.

6. Insofar as the plea of limitation is concerned, pension being a

recurring benefit, the question of limitation did not arise. However, the

respondent could have claimed arrears of increased pension in terms of the

order only for three years prior to the institution of the OA and not since the

amendment in the year 1983.

7. Accordingly, while upholding the finding of the Tribunal of the

pension payable to the respondent being required to be computed on the

basis of 33 years of qualifying service, we clarify that in consequence

thereof, the respondent would be entitled to arrears of pension only for a

period of three years prior to the filing of the OA and with effect from the

date of filing of the petition onwards. The petition is disposed of in the said

terms.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE

NOVEMBER 28, 2011 „gsr‟