A.N Varma, J.:— The petitioner, a retired member of the U.P Higher Judicial Service, is aggrieved by an order dated February 28, 1982 issued by the Accountant General whereby while sanctioning commutation of pension to the petitioner he directed deduction of an amount of Rs. 6273.55 from the sum determined by him as the commuted value of the petitioner's pension.

2. The essential facts which are not in dispute lie within a narrow compass. The petitioner retired from the aforesaid service on April 30, 1980 and on June 7, 1980 he received the pension payment order. On August 18, 1980 the petitioner made an application for commutation of one-third of his pension amounting to Rs. 340/- per month. The processing of the application took 18 months during which the petitioner continued to draw full pension. On February 29, 1982 the Accountant General sanctioned the commutation of pension requested by the petitioner but while doing so directed a deduction of Rs. 6273.55, on the premise that the date with effect from which the deduction of the commuted portion of the pension from the petitioner's salary were liable to be made was the date on which he had submitted his application for commutation. The petitioner challenges the above decision of the Accountant General on the ground that on a true and proper interpretation of the relevant statutory provisions and the Government orders issued in connection with the commutation of pension deduction of the commuted portion of the pension could be made from the petitioner's pension only from the date of the order of the Accountant General sanctioning commutation or subsequent thereto and not earlier.

3. Having given the matter our careful consideration we are clearly of the opinion that the petitioner's contention has considerable merit and must be accepted. In order, however, to appreciate the legal issue involved in the case it will be convenient to have a look at the relevant statutory provisions and the Government Orders issued from time to time on the subject.

4. The commutation of pension is admissible to U.P Government servants under U.P Civil Pensions (Commutation) Rules, 1941 (the ‘Commutation Rules’ for short). Rule 4 of these rules provides that subject to certain conditions laid down therein a Government servant may be permitted to commute for a lump sum payment and portion not exceeding half of the pension which has been granted to him under the relevant rules.

5. The next relevant provision is Rule 7 which lays down that no commutation will be sanctioned until the pensioner produces a certificate from the competent medical authority to the effect that his bodily health and prospects of duration of life are such as to justify commutation. The rigour of this rule was, however, liberalized by a Government order issued on June 3, 1980 which enabled the pensioners to apply for commutation within one year of his retirement without producing the kind of certificate referred to above. Under clause (4) of this order, however, it was provided that commutation shall be allowed only after the same has been sanctioned by the Head of the Department and be effective from the date on which the application for commutation is completed in all respects.

6. We then have Rule 10 of the aforesaid Commutation Rules on which learned counsel for the petitioner laid considerable stress. The same is, therefore, extracted here in full:

“10. Commutation, when sanctioned, shall take effect from a date to be specified in the order which will ordinarily be about fifteen days later than the date of the order; and all calculations shall be made with reference to that date.

Note: In special cases the sanctioning authority may permit commutation to have effect from an earlier date than that mentioned in this rule, but not preceding the date of the sanctioning order. All calculations shall be made with reference to such earlier date.”

7. According to the above rules as the same stood on the date on which the impugned order was passed by the Accountant General, commutation, when sanctioned, was to take effect from a date which could not be earlier than the date of such order.

8. Apart from the aforesaid rules there are no other provisions in the Commutation Rules (as they stood at the relevant time) which dealt with the subject of the precise point of time from which the deductions of the commuted portion of the pension were to be made from the pension. The Government itself appears to have realized this ambiguity and lacuna in the rules. Consequently, with a view to clarifying the position the Government issued an order on May 18, 1983 (a true copy whereof is Annexure RA-1 to the rejoinder affidavit) in the preamble of which it is recited that the present practice of making deductions of the commuted portion of the pension from the date on which applications for commutation are made regardless of the delays involved in the processing of such applications was working considerable hardship on the pensioners necessitating simplification of the procedure. With this end in view the Government Order laid down that deductions of the commuted portion of the pension shall be made only from the date of the sanction of commutation or within three months from the date of the order of the Accountant General, whichever is earlier.

9. In the above Government Order dated May 18, 1983 it was provided that it shall become enforceable from June 1, 1983. Commutation having been sanctioned to the petitioner in 1982, it is apparent he could not derive any benefit from that Government Order. However, fortunately for the petitioner, by another Government Order issued on June 30, 1985, it was provided that the Government Order dated May 18, 1983 shall be deemed to have become enforceable from July 1, 1981. With the result that the petitioner could also press in aid the benefit accruing to pensioners under the Government Order dated May 18, 1983.

10. In March, 1984, however, the Commutation Rules including Rules 7 and 10 mentioned above were amended and the amendments were made effective from June 3, 1980. The amendments introduced in Rule 7 are not of much relevance to the controversy in hand, but Rule 10(2) as amended on which the counter affidavit mainly relies provides that commutation shall be effective from the date on which the commutation application is submitted before the Head of the Department and that all calculations shall be made with effect from that date. The amended Rule 10(2) is in the same terms as clause (4) of the Government Order dated June 3, 1980 referred to hereinabove.

11. This then is a belief survey of the relevant statutory provisions and the Government Orders issued on the subject from time to time. In this backdrop we proceed to consider the validity of the petitioner's submissions.

12. In our opinion, the Commutation Rules as they stood both on the date of the petitioner's retirement as well as the date on which the commutation was sanctioned to him were completely silent as to the date from which deductions were to be made from the pension of the Government servant. The only rule which touched indirectly on the subject was Rule 10 which provided that commutation, when sanctioned, shall take effect from the date to be specified in the order which shall ordinarily be fifteen days later than the date of the order. Clause (4) of the Government Order dated June 3, 1980 also did not go beyond stating that commutation shall be allowed only after the same has been sanctioned and be effective from the date on which the application for commutation is complete in all respects.

13. Neither Rule 10 nor this Government Order, however, lends any assistance in ascertaining the date from which deductions were to be made from the applicant's pension. To say that commutation shall take effect from a certain date does not imply that the deductions of the commuted portion from the pension shall also be treated as liable to be made from that date. Commutation, in our opinion, primarily implies payment of a lump sum to a Government servant in lieu of a reduced pension which he agrees to accept in the future. For calculating this lump sum it was felt necessary to specify the date with reference to which the amount had to be determined and it was only with that end in view that the Rule making authority provided that the commutation, when sanctioned, shall be effective from a particular date. The point of time from which the actual deductions shall commence is, however, quite a different matter. The deductions from full pension ought, we do venture to think, follow rather than precede the sanction for the payment of a lump sum. Indeed as we will presently point out there is statutory support for this view. The Government itself noticed the anomaly prevailing in the existing rules and the Government Orders as regards the date from which deductions should commence and consequently issued the aforesaid Government Order dated May 18, 1983.

14. This order cleared the mist on the subject beyond any debate. It stated in so many words that actual deductions shall be made from the pension of a Government servant applying for commutation only from the date of its sanction accorded by the Accountant General or three months thereafter whichever is earlier. This Government Order is not in derogation of nor inconsistent with the Commutation Rules, but is designed plainly and expressly to fill in the lacuna in the rules and to mitigate the inequity to which pensioners were being exposed as a result of the existing rules and Government Orders. The order operates in a field not covered by the rules and must, therefore, have full effect.

15. The question, however, remains whether the amended Rule 10(2) has made any difference in the aforesaid legal position. In our view, the answer must be in the negative. The amended Rule 10, like its predecessor, is also silent as to the date from which actual deductions shall be made. Like the unamended Rule 10, the amended rule also mentions the date from which commutation shall take effect. We have already made our comments on what precisely is the import of the provision that commutation shall take effect from a particular date, and it is hence unnecessary to dilate on the subject further. The amended Rule 10 does not, in our considered view, affect the validity of the Government Order dated May 18, 1983. As we will presently demonstrate this Order continue to govern the case at hand.

16. Indeed, if there was any doubt, the same stood dispelled by the fact that even after the amendment of the rules in 1984, the Government issued an order dated January 30, 1985 with the sole purpose of giving retrospectivity to the Government order dated May 18, 1983 which became enforceable from a back date, viz., July 1, 1981. The intention of the Government is unambiguous and it was that the policy spelled out by the Government Order dated May 18, 1983 shall continue. We, therefore, hold that Rule 10 as amended did not bring about any change relevant to the controversy. The legal position as it obtained regarding the date from which deductions were to be made continued to be the same as it existed prior to March 6, 1984.

17. The upshot of the foregoing discussion, therefore, is that the impugned order issued by the Accountant General making deductions from the lump sum about determined payable to the petitioner on the premise that the petitioner's pension became liable to be reduced with effect from the date of his application is clearly untenable and must be quashed. The decision of the Accountant General as regard the amount determined payable to the petitioner in a lump sum by way of commutation is affirmed and is left untouched.

18. Before concluding we may briefly dispose of a submission made by Sri Murlidhar on behalf of the petitioner in the alternative. It was urged that if it is held that under the amended Rule 10(2) deductions could be made from the petitioner's pension with effect from the date of application and not the sanction accorded by the Accountant General, the provision must be struck down as completely arbitrary and therefore, hit by Article 14 of the Constitution. It was submitted that making deductions from pension from a date earlier than the sanction of the lump sum payment would be ex-facie unreasonable and unjust. Learned counsel also submitted that applying the amendments effected in the rules in 1984, to the case of the petitioner which already stood decided in 1982 must also be held to suffer from the same constitutional invalidity. In the view that we have taken on the first point dealt with herein above we consider it necessary to pronounce on the validity of the above contention, though it does seem attractive on its face and cannot be rejected out of hand. We are, however, not expressing any opinion either way on the submission of the learned counsel based on Article 14 of the Constitution.

19. In the result, the petition succeeds and is allowed. The impugned order (Annexure-4 to the petition) passed by the Accountant General—III, U.P, Allahabad in so far as it directs deductions from the lump sum of his pension, is quashed. The rest of the order is, however, affirmed. The petitioner shall be entitled to his costs from the respondents.