This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the respondents to consider and dispose of the representation, dated 19.6.2012 of the petitioner within a limited time limit regarding refixation of pension in the light of G.O.Ms No. 461, Finance (Pension) Department, dated 31.7.1996 and G.O.Ms No. 488, Finance (Pension) Department, dated 12.8.1996

ORDER

This writ petition is filed by the petitioner seeking for a direction to the respondents to consider and dispose of his representation, dated 19.6.2012 within a time frame regarding refixation of pension in the light of G.O.Ms No. 461, Finance Department, dated 31.7.1996 and G.O.Ms No. 488, Finance Department, dated 12.8.1996

2. At the time of filing of the writ petition, the petitioner is 74 years old. In the representation, dated 19.6.2012, he claimed that he was working as an Assistant Teacher in Harur. He sought for revision of pension with effect from 1.7.1996 He claimed that there has been discrimination between the persons who retired before 01.07.1996 and those who retired on the same day or after that date, which is violative of Articles 14 and 16 of the Constitution. Since his date of retirement was on 30.6.1996, the benefit of revision given to persons, who retired on or after 1.7.1996 by G.O.Ms No. 488, Finance Department, dated 12.8.1996, should be given to him.

3. Heavy reliance was placed upon a judgment of the Supreme Court in 2001 (4) SCT 424. Since his date of retirement falls on 30.6.1996, he must be actually considered to be retired from service from the next day on attaining the age of superannuation. The petitioner placed reliance upon an unreported judgment of this court in K.L Ramamoorthy v. The Secretary to Government, Finance Department (Pension), Secretariat, Chennai, dated 02.02.2012 in W.P No. 49577 of 2006 (O.A No. 5345 of 2001), wherein this court relied upon a Full Bench judgment of the Central Administrative Tribunal. However, this court is not inclined to accept the interpretation placed by the petitioner.

4. It is brought to the notice of this court that a division bench of this court headed by P.K Misra, J. (as he then was) in Union of India, rep by the Principal Accountant General, Tamil Nadu and Pondicherry, Chennai v. R. Sundara Rajan reported in 2009 (4) MLJ 66, had considered an identical question and in paragraph Nos. 12 to 15 and 17 to 19, it was observed as follows:

“12. In another unreported decision of the High Court of Karnataka in Union of India v. Y.N.R Rao W.P No. 18186 of 2003 disposed of on 8.12.2003, while dealing with the question of payment of retirement gratuity and a contention regarding applicability of the Rule, which enhanced the maximum amount of gratuity payable, after analysing F.R 56 and Rule 5 of the Pension Rules, a Division Bench speaking through Justice R.V Raveendran, as His Lordship then was, observed as follows:-

“5. But for the provisions of FR 56, which provides that a Government Servant shall retire from service on the afternoon of last date of the month in which he had attained the age of 58 years, the respondent, who was born on 9-3-1937 would have retired on 8-3-1995. The provision for retirement from service on the afternoon of the last date of the month in which the Government Servant attains the age of retirement instead of on the actual completion of the age of retirement in FR 56 was introduced in the year 1973-74 for accounting and administrative convenience. What is significant is the proviso to clause (a) of FR 56 which provides that an employee whose date of birth is first of a month, shall retire from service on the afternoon of the last date of the preceding month on attaining the age of 58 years. Therefore, if the date of birth of a government servant is 1-4-1937 he would retire from service not on 30-4-1995, but on 31-3-1995. If a person born on 1-4-1937 shall retire on 31-3-1995, it would be illogical to say a person born on 9-3-1937 would retire with effect from 1-4-1995. That would be the effect, if the decision of the Full Bench of the CAT, Mumbai, is to be accepted. Therefore, a government servant retiring on the afternoon of 31-3-1995 retires on 31-3-1995 and not from 1-4-1995. We hold that the decision of the Full Bench (Mumbai) of the CAT that a government servant retiring on the afternoon of 31st March is to be treated as retiring with effect from the first day of April, that is same as retiring on the forenoon of first of April, is not good law.

6. Rule 5(2) of Pension Rules provides that the day on which a government servant retires from service shall be treated as his last working day. Rule 3(o) defines ‘pension’ as including gratuity except where the term ‘pension’ is used in contra-distinction to gratuity. Rule 5(1) provides that any claim for pension (or gratuity) shall be regulated by the provisions of CCS Pension Rules in force at the time when a government servant retires from service. A combined reading of these clauses makes it clear that the date of retirement is the last date of the month in which the Government servant retires and the Retirement Gratuity is to be calculated as per Rules in force on that date. As the respondent retired on 31-3-1995, his entitlement to gratuity will be governed by the Pension Rules as on 31-3-1995. As per Rule 50 as it stood on 31-3-1995, the maximum amount payable as retirement gratuity of Rs. 1,00,000/- and therefore the Department was justified in paying only Rs. 1,00,000/- to the respondent.”

13. In our considered opinion, the analysis made by the Full Bench of the Andhra Pradesh High Court and by the Division Bench of the Karnataka High Court with respect is in accord with the relevant provisions and has our unstinted concurrence.

14. The decisions on the basis of which the Tribunal had granted the relief to Respondent No. 1 had inspiration from the observations made by the Supreme Court in S. Banerjee v. Union of India (supra). In the said case filed under Article 32 of the Constitution of India before the Supreme Court, the petitioner was an Additional Registrar of the Supreme Court before his retirement. Even though his normal date of retirement was 31.3.1987, he had sought for voluntary retirement from service and by office order dated 6.12.1985 it was specifically indicated that the Hon'ble the Chief Justice of India had “… permitted him to retire voluntarily from the service of the Registry of the Supreme Court of India with effect from the forenoon of January 1, 1986.” As per para 17.3 of Chapter 17 of Part II of the IV Central Pay Commission Report, it had been indicated:-

“17.3 In the case of employees retiring during the period January 1, 1986 to September 30, 1986, government may consider treating the entire dearness allowance drawn by them up to December 31, 1985 as pay for pensionary benefits.”

On the basis of such recommendation, which had been accepted by the Government, the petitioner had claimed that the entire Dearness Allowance drawn upto 31.12.1985 should be treated as pay for calculating pensionary benefits. The contention raised on behalf of the Union of India was to the effect that by virtue of proviso to Rule 5(2) of the Central Civil Service (Pension) Rules, 1972, it should be taken that date of retirement of the petitioner should be treated as non-working day and, therefore, the petitioner was not entitled to salary for the day of his retirement and not entitled for the benefit of the recommendation of the Pay Commission as contained in para 17.3 of the Pay Commission Report. The above contention was repelled by the Supreme Court by observing inter alia:-

“6. … 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.”

15. The Full Bench of the Andhra Pradesh High Court, after taking note of the observations made in S. Banerjee v. Union of India (supra) case, has concluded that the ratio of the said decision was not applicable for considering the question as to whether the person who retires on the last day of a month can claim that the increment which falls due on the first day of the subsequent month is to be taken into account for the purpose of payment of retiral benefits.

17. As a matter of fact, the aforesaid decision of the Supreme Court has been distinguished in a very recent case of the Supreme Court in (2008) 2 SCC 639: AIR 2008 SCW 7237 (ACHHAIBAR MAURYA v. STATE OF UTTAR PRADESH). In the above decision, the date of birth of the appellant before the Supreme Court, who was an Assistant Teacher in a primary school, was 1.7.1943 and, as per the relevant rule, his age of superannuation was “… in the afternoon of the last day of the month in which he attains the age of 60 years”. The proviso to the aforesaid rule was to the following effect:-

“Provided that a teacher who retires during an academic session (July 1 to June 30) shall continue to work till the end of the academic session, that is, June 30 and such period of service will be deemed as extended period of employment.”

The contention of the appellant was to the effect that he was to retire from service on 1.7.2003 and, therefore, he should have been extended the benefit contemplated in such proviso. Strong reliance was placed by the appellant on the decision of the Supreme Court in S. Banerjee's case. The Supreme Court negatived the contention by observing:-

“8. As the appellant was born on 1-7-1943, he would retire on 30-6-2003. The question as to whether he would obtain the benefit of extended period of service up to 30th June and the next year will depend upon the situation as to whether the teacher retires on or after 1 July or not.

…

10. A benefit of getting an extended period of service must be conferred by a statute. The legislature is entitled to fix a cut-off date. A cut-off date fixed by a statute may not be struck down unless it is held to be arbitrary. What would, therefore, be an employee's last working date would depend on the wordings of the Rules. It may seem unfortunate as some people may miss the extended period of service by a day, but therefor a valid provision may not be held to be invalid on the touchstone of Articles 14 or 16 of the Constitution of India. A statute cannot be declared unconstitutional for conferring benefit to a section of the people. We, therefore, do not agree with the view taken in Khan Chandra Madhu.

11. In S. Banerjee v. Union of India, whereupon reliance has been placed, the fact situation obtaining was completely different. In that case, the appellant filed an application for voluntary retirement which was accepted from the forenoon of 1-1-1986. In that view of the matter, he was found to be entitled to the benefit of Para 17.3 of the Recommendations of the Pay Commission.”

18. In our considered opinion, the analysis made by the Full Bench of the Andhra Pradesh High Court and the Division Bench of the Karnataka High Court is in accord with the ratio of the above decision of the Supreme Court, which even though rendered slightly on a different context appears to be squarely applicable.

19. As already noticed at the threshold, the Tribunal had granted the relief on the basis of an earlier decision of the Andhra Pradesh High Court and of the Central Administrative Tribunal, Hyderabad Bench. The Division Bench of the Andhra Pradesh High Court has been overruled by the Full Bench decision which had in fact reversed the decision of the Tribunal. In our considered opinion, the analysis made by the Full Bench of the Andhra Pradesh High Court is squarely applicable and is consistent with the latest decision of the Supreme Court in Achhaibar Maurya v. State of Uttar Pradesh (supra) case.”

5. Mr. V. Vijay Shankar, learned counsel, taking notice for third respondent also brought to the notice of this court a judgment of the Supreme court in Achhaibar Maurya v. State of Uttar Pradesh reported in (2008) 2 SCC 639, wherein in paragraphs 11 to 13, it was held as follows:

“11. In S. Banerjee v. Union of India [1989 Supp (2) SCC 486], whereupon reliance has been placed, the fact situation obtaining was completely different. In that case, the appellant filed an application for voluntary retirement which was accepted from the forenoon of 1.1.1986 In that view of the matter, he was found to be entitled to the benefit of Para 17.3 of the Recommendations of the Pay Commission.

12. It was urged that the appellant was entitled to a heairng as the matter relating to retirement from service depended upon the statutory provisions. A person retires automatically on the day when he completes the age of superannuation. Principles of natural justice, therefore, cannot be said to have any application in a case of this nature. A person attains a specified age on the day next before the anniversary of his birthday or in other words on the day preceding that anniversary. (see. Shurey, Re, Savory v. Shurey [LR (1918) 1 Ch 263] and R. v. Scoffin [LR (1930) 1 KB 741].

13. This Court in Prabhu Dayal Sesma v. State of Rajasthan [(1986) 4 SCC 59] held: (SCC pp. 63-64, para 9)

“9….In calculating a person's age, the day of his birth must be counted as a whole day and he attains the specified age on the day preceding, the anniversary of his birthday.”

6. In the light of the above, there is no case made out. Hence the writ petition will stand dismissed. No costs.