1. Aggrieved by the action of respondents in not extending to him retirement benefits by treating him to have retired on 1.1.96 the applicant has preferred the present O .A. He has sought for a direction to the respondents that he should be extended the benefits as if he has retired on 1.1.96.
2. The facts lie in a narrow compass. The applicant retired from service on 31.12.95. He had reportedly been agitating this grievance in different forum. It was finally rejected in pension adalat on 30.6.04.
(i) The decision of Apex Court in S. Banerjee v. UOI. .
(ii) The Full Bench decision in O.A. 459/97 and O.A. 460/97, V. Rajagopalan v. UOI. Annex.-A/11 is a decision of Banglore Bench in O.A. 694/03 which after taking note of stay granted by Mumbai High Court in writ petition filed against O.As. 469/97 and 460/97 has granted the consequential benefits as the same had not been reversed.
(iii) The decision of Hyderabad Bench in O.A. 79/2000 which has followed the decision of Andra Pradesh High Court in UOI v. R. Malakondaiah .
(iv) The decision of Ernakulam Bench in O.A. 598/2002 relying on the full Bench in V. Rajagopalan's case and in O.A. 1205/2000 decided by Ernakulam Bench. The later decision has also been considered by the Kerala High Court.
The respondents on the other hand have relied on the Full Bench decision of Andra Pradesh High Court in W.P. 22042/03 and four others.
It overruled the judgment in Malakundaiah 's case.
5. The petitioner 5. Banerjee v. UOI and Ors. (supra) was a officiating Additional Registrar of the Supreme Court and had been permitted to retire voluntarily from the service of the Registry of the Supreme Court of India w.e.f. forenoon of January 1, 1986. He had claimed the benefit of para 17.3 of recommendation of the Pay Commission providing that in case of employees retiring during the period 1.1.86 to 31.9.86, the Government may consider treating the entire dearness allowance drawn by them upto 31.12.85 as pay for pensionary benefits. The respondents had contested it on the ground that as the applicant was not entitled to salary in view of the provision of Rule 5(2) of CCS (Pension) Rules, he was not entitled to the benefits of the recommendations of this paragraph. The three Judges Bench held: 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 employee retiring on January 1, 1986 will be entitled to the benefit under paragraph 17.3. The question that arises for our consideration is whether the petitioner has retired on January 1, 1986. 'We have already extracted the order of this Court dated December 5, 1985 whereby the petitioner was permitted to retire voluntarily from the service of the Registry of the Supreme Court 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 it be said that the petitioner retired on December 31, 1985? The answer must be in the negative. Indeed, Mr. Anil Dev Singh, learned Counsel appearing on behalf of the respondents, frankly conceded that the petition could not be said to have retired on December 31, 1985. It is also not the case of the respondents that the petitioner had retired with effect from December 31,1985 and that is also the order of this Court dated December 6,1985. It may be that the petitioner had retired with effect from the forenoon of January 1, 1986 as per the said order of this Court, that is to say, as soon as January 1, 1986 had commenced the petitioner retired. But, nevertheless, it has to be said that the petitioner had retired on January 1, 1986 and not on December 31, 1985. In the circumstances, the petitioner comes within the purview of paragraph 17.3 of the recommendations of the Pay Commission." "7. Paragraph 3.1 of the Office Memorandum provides, inter alia, that the revised provisions as per these orders shall apply to Government servants who retire/die in harness on after 1.1.1986. The said Office Memorandum will, therefore, be applicable to Government servants retiring on 1.1.1986. There is, therefore, no substance in the contention that the Office Memorandum dated April 14,1987 will not apply to the petitioner. Be that as it may, we have already held that the petitioner had retired with effect from 1.1.1986 and he comes within the purview of paragraph 17.3 of the recommendations of the Pay Commission.
6. The Division Bench of the Andhra Pradesh High Court in UOI and Ors.
v. R. Malakondaiah and Anr. (supra) was considering the question as to whether employee who retired on the last day of the month was entitled to increment which had fallen due on the next date. The Union Government was aggrieved by the order of C.A.T., Hyderabad Bench, which had allowed the said increment. The Division Bench of the High Court relying on para 6 of the decision in S. Banerjee (supra) held that the applicant was entitled to the benefit of the increment.
7. The Full Bench in V. Rajagopalan and Anr. v. UOI (supra), was considering the following question: Whether a Government servant completing the age of his superannuation on 31.3.1995 and relinquishing charge of his office in the afternoon of that day is deemed to have retired from service on superannuation with affect from 31.3.1995 itself or with effect from 01.04.1995? The Full Bench answered the question in the affirmative and held that the Government servant is deemed to have been retired from the service w.e.f. 1.4.95. It accordingly held that _he was entitled to the benefits of O.M. 14.7.95 providing for enhancement of maximum gratuity from 1 lacs to 2.50 lacs.
8. It appears from a copy of the judgment of C.A.T. Bangalore Bench referred to in December 2003 issue of Pension India (Annex.-A/11) that interim relief stay has been granted against the judgment by the Bombay High Court. The Tribunal allowed the O.A. holding that the Full Bench decision has not been reversed and is accordingly binding on this Bench. It was accordingly held that effective date of the retirement from the service shall be treated as 1.1.86 and not 31.12.85. C.A.T.Earnakulam Bench in O.A. 598/2002 was considering the identical question as to whether the person who had retired on 31.12.95 should be treated as pensioner w.e.f. 1.1.96 and given the benefit of revised order from 1.1.96. The Tribunal has relied on the decision of Kerala High Court in O.P. No. 32459/ 2001. The Hon'ble Kerala High Court held: So, the rule regarding persons who retired on 31.12.1995 and became pensioners with effects from 1.1.96 is vague. The framers of the Rule did not envisage the case of the persons like the petitioner, who were superannuated on 31.12.95, but became pensioners only with effect from 1.1.96. In view of the above lack of clarity in the Rules, the view taken by the Tribunal cannot be said to be illegal or perverse. A plausible view has been taken by the Tribunal. We notice that no serious prejudice is also caused to the writ petitioners. By paying commuted value of the pension, the petitioners need only pay the balance amount of the pension, /. e.
66-2/3 per cent. So even if the petitioners have got an arguable case, this Court need not interfere under Article 326 in view of the nature of the jurisdiction exercised by this Court over the Tribunal. For all the above reasons, we decline to interfere with the order passed by the Tribunal and the O.P. is dismissed.
9. The Kerala High Court in UOI v. George 2004(1) ATJ 150 was considering the question as to whether an employee had retired on 31.12.95 relying on the decision of S. Banerjee (supra) and decision of Andhra Pradesh High Court in W.P. 1219/98 and 1409/ 98 had held that the Tribunal has rightly granted the benefit of pension as revised w.e.f. 1.1.1996.State of Punjab and Ors. v. Boota Singh and Anr.
2000 SCC (L&S) 435 was considering the appeal of the State of Punjab from the order of Punjab and Haryana High Court. The Hon'ble High Court had held that the benefit of notification dated 9.7.85 deciding that the dearness allowance andad hoc dearness allowance sanctioned up to Consumer Price Index Level 568 will be treated as dearness pay, for purposes of calculating the pension, gratuity/DCRG and terminal gratuity in respect of employee retiring on or after 31.3.85 and the circular dated 24.11.1988 permitting the accumulation and encashment of leave upto 360 days w.e.f. 1.1.86 shall also be applicable to these applicants, who had retired from the service on 31.12.82 and 31.12.82 and 31.10.82, the Apex Court held: 7. On merits we find that the retirement benefits which are claimed by the respondent are benefits which are conferred by subsequent orders/ notifications. Therefore, persons who retired after the coming into force of these notification and order are governed by different rules of retirement than those who retired under the old rules and were governed by the old rules. The two categories of persons, who retired were governed by two different sets of rules.
They cannot, therefore, be equated. Further, granting of additional benefits has financial implication also. Hence, specifying the date for the conferment of such additional benefits cannot be considered as arbitrary.Indian Ex-Services League v. Union of India this Court distinguished the decision in Nakara case and held that the ambit of that decision cannot be enlarged to cover all claims by retirees or a demand for an identical amount of pension to every retiree, irrespective of the date of retirement, even though the emoluments for the purpose of computation of pension be different.
We need not cite other subsequent decisions which have also distinguished Nakara case. The latest decision is in the case of K.L. Rathee v. Union of India where this Court, after referring to various judgments of this Court, has held that Nakara case cannot be interpreted to mean that emoluments of persons who retired after a notified date holding the same status, must be treated to be the same. The respondents are not entitled to claim benefits which became available at a much later date to retiring employees by reason of changes in the rules relating to pensionary benefits.State of Punjab and Anr. v. J.L. Gupta 2000 SCC (L&S) 437-2000(3) SLJ 73 (SC) was considering the matter regarding non-extension of the benefits of aforesaid notification 9.7.85 to persons who had retired earlier. It followed the decision in Boota Singh's case (supra).
11. The Full Bench of the Andhra Pradesh High Court in Writ Petition No. 22042/2003 and four other writ petitions was seized of the following two questions: I. Whether a Government servant who retires on the last working day of the preceding month and whose annual increment falls due on the first of the succeeding month is entitled for sanction of annual increment for the purpose of pension and gratuity? II. Whether a retired Government servant is entitled for revised rate of D. A. which comes into force after such Government servant retires from service on attaining the age of superannuation? After referring to the Apex Court decision in S. Banejee's case (supra), State of Punjab v.J.L. Gupta (supra), Andhra Pradesh High Court's judgment in Malakondaiah's case, Kerala High Court's decision in UOI v. George, the Full Bench decision in V. Rajagopalan's case, the Full Bench had answered the questions as follows: In support of the above discussions, the Division Bench also placed reliance on Banerjee case (supra). We are afraid, the Division Bench was not correct in coming to the conclusion that being a reward for unblemished past service, Government servant retiring on the last day of the month would also be entitled for increment even after such increment is due after retirement. We have already made reference to all Rules governing the situation. There is no warrant to come to such conclusion. Increment is given (See Article 43 of CS Regulations) as a periodical rise to a Government employee for the good behaviour in the service. Such increment is possible only when the appointment is "Progressive Appointment" and it is not a universal rule. Further, as per Rule 14 of the Fundamental Rules, a person is entitled for pay, increment and other allowances only when he is entitled to receive pay from out of Consolidated Fund of Indian and continues to be in Government service, a person who retires on the last working day would not be entitled for any increment falling due on the next day and payable next day thereafter (See Article 151 of CS Regulations), because he would not answer the tests in these Rules. Reliance placed on Banerjee case (supra) is also in our considered opinion not correct because, as observed by us, Banerjee case (supra) does not deal with increment, but deals with enhancement of DA by the Central Government to pensioners. Therefore, we are not able to accept the view taken by the Division Bench. We accordingly overrule the judgment in Malakondaiah case (supra)." "This question would arise only in Writ Petition No. 22042 of 2003 as the respondent therein claimed DA instalments at 49%. As held by us supra, a Government servant who would be retiring on the last day of the month would cease to be Government servant by mid-night of that day and he would acquire status of pensioner and therefore he would be entitled for all the benefits given to a pensioner with effect from first day of the succeeding month. In Banerjee case (supra), the Supreme Court laid down that as soon as first day of the succeeding month commenced, petitioner retired and gave the benefit of enhanced DA. The same view has been consistently followed in subsequent decision as well. To that extent, it must be held that the learned Tribunal has taken correct view." 12. A Full Bench of the Tribunal in O.A. 555/2001, Dr. A.K. Dawar v.UOI and Ors. O.As., has held that in case of conflicting decisions of other High Courts the decision of larger bench will prevail. The said decision of Full Bench of A.P. High Court is binding on us.
13. This O.A. is accordingly devoid of merit. It is fit to be dismissed and is dismissed with no order. as to costs.