Mr. K. Shivashankar Bhat, J.— Petitioner seeks the following reliefs:

(a) Issue a Writ of Certiorari or any other appropriate Writ, order or direction calling for the records which led to the passing of the impugned decision (Annexure P-2) and the scheme notified vide Annexure P-1, declining to grant relief to the petitioner and on a consideration of the submissions made in the present petition, the same be quashed.

(b) Issue an appropriate writ in the nature of mandamus and certiorari or any other writ, order or direction quashing the decision contained in Annexure P-2 rendered by the First Respondent.

(c) Issue any other Writ, order or direction granting to the petitioner all other necessary and consequential reliefs, as are just and proper in the facts and circumstances of the case.

2. In substances the petitioner is aggrieved by the denial of the benefit of pension which was made available to those who retired from service w.e.f 3.8.1981 under a Scheme introduced by Office Order No. 16 dated 27th November, 1992. In other words, the retrospectivity given to the Scheme was confined to those who retired only but not extended to those who resigned. An artificial distinction has been made between the persons who retired and those who resigned at a time when there was no occasion for the concerned person to opt for retirement or seek retirement in the manner stated in Rule 48 of C.C.S Pension Rules (for short the Rules).

3. The petitioner joined the first respondent as a Conductor in the year 1953. Thereafter he was promoted as a Junior Clerk and then as a Senior Clerk. In September, 1975 he was removed from service and this removal was challenged by the petitioner by raising an industrial dispute. In December 1984 the Labour Court reinstated the petitioner with full back wages and continuity of service after quashing the order of removal. This was challenged by the respondent-Corporation by filing a writ petition 387 of 1986 but this Court rejected the writ petition in limine on 20th February, 1986.

4. In the course of this prolonged litigation, according to the petitioner, he became ill and therefore he sent a letter for resignation on medical grounds in April, 1986 (which was after his reinstatement). The resignation was accepted on 12th September, 1986. The petitioner had given the notice of three months as required. The petitioner admittedly had completed 33 years of service by that time. The petitioner also has produced sufficient material to show that due to medical reasons he had to opt for resignation and seek retirement. The Rules referred above were not applicable to the employees of the first respondent-Corporation during the relevant time and consequently there was no occasion for the petitioner to persuade the first respondent-Corporation to retire him. On resignation the petitioner was paid the then retirement benefits.

5. On 27th November, 1992 the Office Order No. 16 referred above was notified. This introduced a Pension Scheme for the employees of the first respondent-Corporation as sanctioned by the Central Government. According to this the Pension Scheme was to be with effect from 3rd August, 1981. Clause 3 of the Scheme which is relevant reads thus:

All the existing employees including those retired w.e.f 3.8.1981 onwards would have the option to opt for the pension Scheme or the Employees Contributory Provident Fund as at present, within 30 days from the date of the issue of this Office Order for the implementation of the Pension Scheme as approved by the Government of India.

Clauses 6 and 7 which are also relevant read thus:

(6) The employees who have retired on or after 3rd August, 1981 and the existing employees who have drawn the employer's share under the E.P.F Act, partly or wholly shall have to refund the same with interest in the event of their opting for the Pension Scheme, the total amount to be refunded by the retired employees/existing employees would be the amount that would have accrued, had they not withdrawn the employer's share.

(7) Excess amount of gratuity, if already paid to ex-employees and which is not admissible under the Pension Scheme will have to be refunded by them before any benefit under the Scheme is granted to them.

6. In terms of the aforesaid Officer Order the petitioner opted for the Pension Scheme and wrote a letter, which was acknowledged as could be seen from Annexure P-2 dated 2nd September, 1993. The claim of the petitioner for pension was rejected by this letter dated 2nd September, 1993 written by Deputy Manager (Pension) on the ground that the petitioner had resigned from the services on 31st March, 1986 and as per C.C.S Pension Rule 26 a Government servant who resigns from service or post forfeits the benefits of past service and therefore he is not entitled for pension benefits. The petitioner is aggrieved by this letter rejecting his application. The petitioner in the writ petition states that he was prepared to surrender all the benefits earlier given to him in terms of Clauses 6 and 7 of the Office Order dated 27th November, 1992 and he should be given the benefit of Pension Scheme because he resigned after the relevant date and there should not be a distinction between a person who retired and a person who resigned.

7. The respondent though served with notice of the writ petition has not filed any reply to the writ petition.

8. According to the petitioner there was no occasion for him to wait for an order of retirement being made because there was no such provision at the relevant time. The petitioner points out that in the case of the Government servant governed by rules 48 and 48-a of the rules he can always seek retirement on completion of 30 years qualifying service instead of resignation and thereafter have the benefit of the pension. When such a provision was not available in the year 1986 petitioner had no other option except to resign in view of his ill health and in such a situation he cannot be treated differently from the persons who retired after tendering qualifying service. The denial of the benefit of the pension according to the petitioner is artificial and arbitrary since there cannot be any rational distinction between a person who resigned and a person who was retired after completing the qualifying service. In the absence of any assistance on the part of the Respondent, I assume that, in view of the Pension Scheme read with the letter Annexure 2 (dt. 2.9.1993) CCS. Rules governs the employees of the Respondent Corporation and if so, after the introduction of the scheme, an employee could be retired on completion of the qualifying years of service.

9. The nature of the pension has been explained by the Supreme Court in D.S Nakara v. Union of India, (1983) 1 SCC 305 : AIR 1983 SC 130. After tracing the history of the law and a few earlier decisions the Supreme Court pointed out that payment of pension is not a matter of bounty. It is also not a matter of grace. Pension is the payment towards the services rendered in the past by the employee. The Court observed at page 137:—

“Pensions to civil employees of the Government and the defence personnel as administered in India appear to be a compensation for service rendered in the past. However, as held in Dodge v. Board of Education, (1937) 302 US 74:82 Law Ed 57 a pension is closely akin to wages in that it consists of payment provided by an employer, is paid in consideration of past service and serves the purpose of helping the recipient meet the expenses of living. This appears to be the nearest to our approach to pension with the added qualification that it should ordinarily ensure freedom from undeserved want.

Summing-up it can be said with confidence that pension is not only compensation for loyal service rendered in the past but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and therefore, one is required to fall back on savings. One such saving in kind is when you gave your best in the hey day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured.

The term has been judicially defined as a stated allowances or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus the pension payable to a Government employee is earned by rendering long and efficient service and therefore can be said to be deferred portion of the compensation for service rendered. One sentence one can say that the most practical raison d'etre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon.”

Further, the Court held:—

“From the discussion three things emerge: (i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Article 309 and Clause (5) of Article 148 of the Constitution, (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. It must also be noticed that the quantum of pension is a certain percentage correlated to the average emoluments drawn during last three years of service reduced to ten months under liberalised Pension Scheme. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to retirement, that is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure.”

10. If a person is entitled to pension on retirement after completing qualifying service, it follows that, the said benefit is a benefit earned by the employee because of the service rendered by him. Can it be said that the benefit so earned ceases to be a benefit only because, at the end of the qualifying service, the employee resigns? If that is to be the law, will it not be penalising such a person for resigning from service, resulting in the forfeiture of the benefit earned. The letter dated 2.9.1993 (Annexure 2) written to the petitioner proceeds on the assumption that benefit of past service will be lost on resignation as per Rule 26. But it fails to consider the implications of Rule 48 and the need to treat all emoloyees who rendered qualifying years of service on equal footing. It should be noted that the petitioner had no occasion to persuade the first respondent-Corporation to retire him by applying a Rule similar to Rule 48 of the Rules. Question of exercising option did not arise in the year 1986 by which time the petitioner had resigned from service, however, the result of the resignation was in no way different from the normal retirement. In both the cases the employee concerned will be going out of the actual service after rendering a requisite number of qualifying service. In the circumstances, I am of the view that the term “retired w.e.f 3rd August, 1981” found in Clause 3 of the Office Order No. 16 should include a person who resigned also w.e.f 3rd August, 1981 after rendering qualifying years of service of 30 years as stated in Rule 48 of the Rules. I am of the view that the phraseology used in Clause 3 of the Scheme should be understood in a liberal sense so as to extend the benefit to all those who rendered the qualifying service and there cannot be any artificial distinction between a person who retired and a person who resigned.

11. The learned Counsel for the petitioner referred to several decisions of the Supreme Court as well as of this Court and a few decisions of other High Courts in support of his contention that there shall not be any artificial distinction between persons who are to be granted certain benefits and persons who are denied such benefits especially amongst pensioners.

12. In Smt. J.S Rukmani, etc. v. Govt. of Tamil Nadu, 1985 LAB. I.C 677 the Pension Scheme notified by Tamil Nadu Government restricted the benefit of family pension to the members of the family of only those Government servants who last served at a place falling within the territories of the successor State of Tamil Nadu. This was held to be arbitrary and the Court extended the benefit to all the employees of Tamil Nadu.

13. The artificiality of the date fixed for extending the Pension Scheme was ignored by the Supreme Court as unconstitutional in Shakuntala Mehrishi v. New Delhi Municipal Committee, 1991 (1) LLN 53.

14. As per the Annexure P-3 dated 28th June, 1993 the petitioner had applied for the pension under the Officer Order/Pension Scheme No. 16 ADMI-5/41/92 dated 27th November, 1992. He had also filed the prescribed option form. The petitioner also has sought commutation of pension for ten years, and further stated that the arrears of pension may be worked out together with interest etc. after adjusting the CPF, employee's share and gratuity recoverable.

15. The writ petition is accordingly allowed. The first respondent-Corporation is directed to extend the Pension Scheme to the petitioner after considering the petitioner's application made, as per Annexure P-3, referred above in the light of the observations made in this order. The first respondent-Corporation is directed to comply with this order within three months from today.

16. No costs.

Petition allowed.