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S. Banerjee v. Union Of India And Others
Factual and Procedural Background
Shri S. Banerjee, serving as Additional Registrar of the Supreme Court of India, was scheduled for normal superannuation on 31-3-1987. He opted instead for voluntary retirement under Rule 48-A of the Central Civil Services (Pension) Rules, 1972. By office order dated 6-12-1985, the Chief Justice of India accepted his notice and permitted him to retire with effect from the forenoon of 1-1-1986.
Subsequently, the Fourth Central Pay Commission’s report recommended revised pay and pension, including paragraph 17.3, which extended certain benefits to employees retiring between 1-1-1986 and 30-9-1986. The petitioner sought these benefits. The Registry denied the claim, citing the proviso to Rule 5(2) of the CCS (Pension) Rules, asserting that because the retirement day is treated as a non-working day, the petitioner did not “retire” on 1-1-1986 for benefit purposes. The petitioner filed a writ petition before the Supreme Court challenging this denial.
Legal Issues Presented
- Whether, notwithstanding the proviso to Rule 5(2) of the CCS (Pension) Rules, the petitioner’s retirement is deemed to have occurred on 1-1-1986, thereby entitling him to the benefit of paragraph 17.3 of the Fourth Central Pay Commission’s report.
- Whether the Office Memorandum dated 14-4-1987, which implements revised pension provisions for government servants retiring on or after 1-1-1986, applies to the petitioner.
Arguments of the Parties
Petitioner's Arguments
- The office order explicitly fixes the retirement “with effect from the forenoon of 1-1-1986,” placing him within the date-range specified in paragraph 17.3.
- The proviso to Rule 5(2) merely affects salary entitlement for the retirement day; it does not alter or advance the legal date of retirement to 31-12-1985.
- Consequently, he is covered both by paragraph 17.3 of the Pay Commission recommendations and by the Office Memorandum dated 14-4-1987.
Respondents' Arguments
- Under the proviso to Rule 5(2), the retirement day is a non-working day; because the petitioner draws no salary for 1-1-1986, he cannot be regarded as “retiring” on that date for pension-revision purposes.
- The Office Memorandum dated 14-4-1987 is inapplicable because it governs only those who remained in service on or after 1-1-1986; the petitioner “ceased to be in employment” at the very start of that day.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court began by examining its own office order of 6-12-1985, which unequivocally authorized the petitioner’s voluntary retirement “with effect from the forenoon of 1-1-1986.” It rejected the notion that the retirement could be back-dated to 31-12-1985; even the respondents’ counsel conceded this point.
The Court acknowledged that, under the proviso to Rule 5(2), the petitioner was not entitled to salary for 1-1-1986, calling that date a non-working day. However, it drew a clear distinction between entitlement to salary and the legal fact of retirement. The absence of salary for the day did not negate that the retirement took effect on that very date.
Since paragraph 17.3 of the Fourth Central Pay Commission expressly covers employees “retiring during the period 1-1-1986 to 30-9-1986,” the petitioner fell squarely within the qualifying window.
The Court also evaluated the additional affidavit and the Office Memorandum of 14-4-1987. Paragraph 3.1 of that memorandum applies revised pension provisions to employees “who retire… on or after 1-1-1986.” Therefore, the memorandum reinforced—not defeated—the petitioner’s eligibility.
Holding and Implications
Writ Petition Allowed. The Court directed the respondents to recalculate and disburse the petitioner’s pension in accordance with paragraph 17.3 of the Fourth Central Pay Commission’s recommendations within three months, with no order as to costs.
Implications: The decision clarifies that, for retirement benefits pegged to specific dates, the legal date of retirement is determined by the retirement order itself, not by salary entitlement on that date. This distinction ensures that employees who retire at the very start of 1-1-1986 qualify for benefits linked to that date, despite the non-working-day fiction in Rule 5(2). No new precedent beyond this clarification was announced.
M.M Dutt, J.— The petitioner was the Additional Registrar of this Court. His normal date of retirement was 31-3-1987. He, however, sought for voluntary retirement from the service of this Court and on his application in that regard, the following order dated 6-12-1985 was communicated to him by the Registrar of this Court:
“OFFICE ORDER
The Hon'ble the Chief Justice of India has accepted the notice of Shri S. Banerjee, Officiating Additional Registrar (permanent Deputy Registrar), seeking voluntary retirement from service under the provisions of Rule 48-A of the Central Civil Services (Pension) Rules, 1972, and has permitted him to retire voluntarily from the service of the Registry of the Supreme Court of India with effect from the forenoon of 1-1-1986.”
2. It is clear from the order extracted above that the petitioner was permitted to retire voluntarily from the service of the Registry of the Supreme Court with effect from the forenoon of 1-1-1986.
3. After the retirement of the petitioner, the Fourth Central Pay Commission (for short “Pay Commission”) gave its report recommending the revision of salaries and pension of the government employees. It is not disputed that the above recommendations of the Pay Commission have been accepted by the government and that the benefit thereof is also available to the employees of this Court. Para 17.3 of Chapter 17 of Part II at p. 93 of the Report of the Pay Commission provides as follows:
“17.3 In the case of employees retiring during the period 1-1-1986 to 30-9-1986, government may consider treating the entire dearness allowance drawn by them up to 31-12-1985 as pay for pensionary benefits.”
4. The petitioner claimed the benefit of the recommendation of the Pay Commission as contained in the said para 17.3, but it was not allowed on the ground that he did not, as he was not entitled to, draw salary for 1-1-1986 in view of the proviso to Rule 5(2) of the Central Civil Service (Pension) Rules, 1972, hereinafter referred to as “the Rules”. Rule 5(2) reads as follows:
“5. (2) The day on which a government servant retires or is retired or is discharged or is allowed to resign from service, as the case may be, shall be treated as his last working day. The date of death shall also be treated as a working day:
Provided that in the case of a government servant who is retired prematurely or who retires voluntarily under clauses (j) to (m) of Rule 56 of the Fundamental Rules or Rule 48 (or Rule 48-A) as the case may be, the date of retirement shall be treated as a non-working day.”
5. At the hearing of the writ petition, it has also been vehemently urged on behalf of the respondents that as in view of the proviso to Rule 5(2) of the Rules, the date of retirement of the petitioner should be treated as a non-working day or, in other words, as the petitioner was not entitled to the salary for the day of his retirement, he was not entitled to the benefit of the recommendation of the Pay Commission as contained in para 17.3 of the report extracted above.
6. Under para 17.3, the benefits recommended will be available to employees retiring during the period, 1-1-1986 to 30-9-1986. So the employees retiring on 1-1-1986 will be entitled to the benefit under para 17.3 The question that arises for our consideration is whether the petitioner has retired on 1-1-1986. We have already extracted the order of this Court dated 6-12-1985 whereby the petitioner was permitted to retire voluntarily from the service of the Registry of the Supreme Court with effect from the forenoon of 1-1-1986. 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 31-12-1985 ? The answer must be in the negative. Indeed, Mr Anil Dev Singh, learned counsel appearing on behalf of the respondents, frankly conceded that the petitioner could not be said to have retired on 31-12-1985. It is also not the case of the respondents that the petitioner had retired from the service of this Court on 31-12-1985. Then it must be held that the petitioner had retired with effect from 1-1-1986 and that is also the order of this Court dated 6-12-1985. It may be that the petitioner had retired with effect from the forenoon of 1-1-1986 as per the said order of this Court, that is to say, as soon as 1-1-1986 had commenced the petitioner retired. But, nevertheless, it has to be said that the petitioner had retired on 1-1-1986 and not on 31-12-1985. In the circumstances, the petitioner comes within the purview of para 17.3 of the recommendations of the Pay Commission.
7. After the conclusion of the hearing of the writ petition, an additional affidavit purported to have been affirmed by Mr P.L Sakarwal, the Director (Justice) of the Department of Justice was filed. In para 8 of the affidavit the deponent has craved leave of this Court to file this additional affidavit. It does not appear from the copy of the purported additional affidavit whether it has been affirmed or not inasmuch as no date of affirmation has been mentioned therein. Be that as it may, a photocopy of the office memorandum dated 14-4-1987 of the Ministry of Personnel, Public Grievances and Pensions, Department of Pensions & Pensioners' Welfare has been annexed. It is submitted in the additional affidavit that the pension of government servants retiring between 1-1-1986 and 30-6-1987 is to be governed in terms of paras 10.1, 10.2 and 11 of the said office memorandum. Further, it has been submitted that the petitioner had ceased to be in the employment of the Supreme Court with effect from 1-1-1986 (FN) and, accordingly, the said office memorandum is not applicable to the petitioner. Para 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 or 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 14-4-1987 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 para 17.3 of the recommendations of the Pay Commission.
8. In the circumstances, the writ petition is allowed and the respondents are directed to calculate and pay to the petitioner within three months from today his pension in accordance with the recommendation of the Pay Commission as contained in para 17.3 extracted above. There will, however, be no order as to costs.
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