Sanat Kumar Roy v. State of West Bengal — 1990 DIGILAW 395 (CAL)

ORDER : The main grievance of the petitioner in the present writ application is against non-conferment of pension under the Death-Cum-Retirement Benefit Scheme, 1985 (for short the said scheme' hereafter). 2. The foundation of challenge of the petitioner is that Regulation 15(2) of the Death-cum Retirement benefit Scheme, 1985 for the employees of Panchayats as well as Clause B(2) and the relevant provisions of the Death-cum-Retirement Benefits, 1985 so far it seeks to clarify the Death-cum-Retirement Benefit determining the age of superannuation at 58 years other than Group D service is arbitrary and ultra vires the Panchayat Act/Rules framed thereunder as well as Articles 14 and 16 of the Constitution of India as also for a mandate upon the respondent for conferment of compensation under the Scheme. The facts of the case are presented, hereunder: 3. The petitioner appointed as Secretary of the Dalui Bazar Gram Panchayat (for short 'the said Gram Panchayat, on April 23, 1959 retired from his service on completion of 60 years of service which fell on July 13, 1981. The date of birth of the petitioner as recorded in the Service Book is July 14, 1921 on the basis of School Leaving Certificate. The date of compulsory retirement of a Secretary of a Gram Panchayat is the date on which be attains the age of 60 years. A secretary may, on attaining the age superannuation or after he has attained such age, be re-employed for good and sufficient reason by the appointing Authority, but such re-employment ~hall not be more than one year at a time and in no case a Secretary be retained in service after be attains the age of 65 years. Respondent no. 2 for good and sufficient reason re-employed the petitioner, as a result be continued as Secretary of the said Gram Panchayat till February 28, 1983. The petitioner was allowed the revised pay scale on and from April 1981 in accordance with the recommendation of Pay Commission till February 23, 1983. The pay of the petitioner as the Secretary of the said Gram Panchayat was fixed at Rs. 310/-in the scale of pay of Rs.300-685. The State Governor introduced the said scheme for the employees who were in active service before superannuation under the Panchayat Body on or after 1.4.81. The pay of the petitioner as the Secretary of the said Gram Panchayat was fixed at Rs. 310/-in the scale of pay of Rs.300-685. The State Governor introduced the said scheme for the employees who were in active service before superannuation under the Panchayat Body on or after 1.4.81. The petitioner, after retirement with effect from July 13, 1981 continued to serve the said Gram Panchayat pursuant to his re-employment till February 23, 1983. The petitioner was not accorded the pensionary benefit, as a result the petitioner made several representations to the respondent nos. 2 and 3 for conferment of all retirement benefits. The petitioner on the basis of his date of retirement i.e. attainment of 60 years, claimed his retirement benefits. Respondent no. 2, the District Panchayat Officer, Burdwan recommended the case of the petitioner as would appear from the representation dated July 29.1982. further recommendation as would appear from the representation dated September 4, 1983 was made by respondent no. 5. Representations were thus forwarded to the Director, Panchayat as also the State Government. The said scheme also provides for Death-cum-Retirement Benefits for the employees of Panchayat on and from April 1, 1981. The representation thus made by the petitioner were neither considered nor benefits were made available to him. In terms of the said scheme the petitioner was in active service before superannuation under the Panchayat Body on or after April 1981. In terms of provision of Rule 5(iii) of the said Scheme the petitioner should be deemed to have opted for going under the said scheme. The petitioner is entitled to retirement benefit on the basis of both under the West Bengal Panchayat Act (for short 'the said Act') and the Rules framed under the said scheme. The petitioner by reason of his service till July 13, 1981 and the re-employment with prior approval of the State Government till February 23, 1983 was eligible for obtaining the pensionary benefits. Apart from the petitioner being in active service on or after April 1, 1981 was paid salary equivalent to regular employees, emoluments. A clarificatory order vide Memo no.100/VIII/Panch/2P-7/85 dated 14.1.1986 issued by the respondent no. Apart from the petitioner being in active service on or after April 1, 1981 was paid salary equivalent to regular employees, emoluments. A clarificatory order vide Memo no.100/VIII/Panch/2P-7/85 dated 14.1.1986 issued by the respondent no. 1 with regard to the said scheme fixes date of retirement under the said scheme at 58 years other than employees belonging to Group D with the stipulation that those who were appointed on or after July 1, 1948 the retirement age of the Group D service will be 60 years. The petitioner also made a grievance that determination of the age of s superannuation at 58 years other than the employees belonging to Group D service is arbitrary and ultra vires the said Rules as well as Articles 14 and 16. 4. Affidavit in opposition (for short 'the said affidavit') on behalf of the Respondent Nos. 1,2,3 and 4 was affirmed by Gurudas Chadra Sarkar of September 11, 1986. The stand taken by the respondents as would appear from the said affidavit is as follows: Rule 49 of the West Bengal Panchayat Rules, 1958 under West Bengal Panchayat Act 1987 provides for age of retirement of a Secretary of an Anchal Panchayat now named as Gram Panchayat was 60 years. Rule 49 by virtue of new Rule 34 of the West Bengal Panchayat (Gram Panchayat Administration) Rules, 1981 ceased to be in operation Under the aforesaid Rule 34 of the West Bengal Panchayat (Gram Panchayat Administration,) Rules 1981 the age of retirement of a Gram Panchayat Secretary is fixed at 60 years subject to the absolute right given to the appointing authority to retire any employee on his attaining age of 58 years. The Rules do not provide for formal notice of superannuation to be served upon the employee of a Gram Panchayat before the date of superannuation. The said affidavit admits that the petitioner on being superannuated at the age of 60 years was re-employed with effect from July 14, 1981, i.e. the date of superannuation till February 23, 1983. It is also an admitted position that re-employment was given to the petitioner from time to time upto February 23, 1983. The said scheme was introduced on August 30, 1985 with retrospective effect from April, 1, 1981. It is also an admitted position that re-employment was given to the petitioner from time to time upto February 23, 1983. The said scheme was introduced on August 30, 1985 with retrospective effect from April, 1, 1981. On completion of 60 years of age the petitioner, according to the respondents, 'retired from service on July 13,1981 and continued his re-employment with effect from July 14, 1981 till February 23, 1983 The question of payment of retirement benefits in the facts and circumstances does not arise. The classification mane by the State Government in respect of retirement is reasonable, rational and is not open for being disturbed. The respondents also took up the stand that the age of retirement of a Secretary of a Gram Panchayat is 60 years. The retirement and pensionary benefits would be available to the employees of a Gram Panchayat under the said Scheme subject to the fulfillment of the terms and conditions as provided in the said Scheme. The said Scheme is retrospective in character. The respondents further claim that the following terms and conditions are to be followed: a) The age of superannuation of a Panchayat employee, other than a member of Group 'D' service, shall be 8 years (vide paragraphs 15(1) and 15(2) of the said Scheme. b) The Scheme shall apply to the regular whole time employees both permanent and temporary, who were in active service before superannuation under Panchayat Bodies on or after 1st April. 1981 (Vide Paragraph 2 of the Scheme). c). Every employee willing to come under the Scheme will have to exercise option within 80 days from the date of issue of notice by Head of Office (Vide Paragraph 5(a)(i) of the Scheme). d) An employee who was in service on 1st April, 1981 but could not exercise option within the prescribed time limit due to retirement or death shall be deemed to have opted for coming under the Scheme (Vide Paragraph 5(a)(iii) of the Scheme). 5. Further the stand of the respondents that a Panchayat employee other than a member of Group D service is treated to remain in service on April 1, 1981 provided he did not reach the age of 58 years as on April 1, 1981 as the age of compulsory retirement of such an employee is fixed at 58 years in terms of paragraphs 15(1) and 15(2) of the said Scheme. The date of birth of the petitioner is 14th July, 1921 and his age on 1st April, 1981 was 59 years 8 months and 9 days and as such, he shall not be deemed to have opted for the scheme and he is not eligible for retirement benefit under the Death-cum-Retirement Benefit Scheme, 1985 for the employees of Panchayat Bodies. The Department of Panchayat issued Memo No. 100/VIII/Panch 2P-7/85 dated January 14, 1986 pursuant to paragraph 56 of the said Scheme clarifying the question of eligibility for retirement benefit in respect of the age of retirement. The respondents further claimed that the memo in question explains away that an employee of a Panchayat body other than Group D service of a Panchayat Body win not be eligible to exercise option to come under the Scheme if he has attained the age of superannuation i.e. 58 years before April 1, 1981. In the event of a Gram Panchayat Secretary who was over 58 years on April 1, 1981 he shall not be eligible for retirement benefits according to the said Scheme. Illustration was cited by the respondents. The said illustration cases are as follows :- Where an employee a) Other than a member of Group D service attains the age of 58 years on or after April 1, 1981 and continues in service upto 60 years of age the period of excess service over 58 years shall be treated as re-employment for which no pensioner benefit is admissible to him in terms of paragraph 16 of the said Scheme. The respondents further referred to the Second Pay Commission which inter alia recommended that the Panchayat employee should not be declared as the Government employee but the facilities enjoyed by the Government employees should be extended to the Panchayat employees. Accordingly, the said scheme for the employees of the Panchayat Bodies was introduced on August 30, 1986. However, benefits on the basis of recommendation of the Pay Commission was extended to the employees of the Panchayat Body with effect from April 1, 1981 and was made operative retrospectively from April 1, 1981. The age of retirement of a Panchayat employee other than the Group D employee is 58 years and the petitioner by reason of re-employment shall not be eligible for pensionary benefit on the basis of the said scheme. The age of retirement of a Panchayat employee other than the Group D employee is 58 years and the petitioner by reason of re-employment shall not be eligible for pensionary benefit on the basis of the said scheme. The claim of the petitioner is without any basis and the writ petitioner is not entitled to any relief as prayed for. 6 In reply to the Affidavit in opposition the petitioner claimed that he is entitled to the retirement benefit within the meaning at Regulation 15 and the note given there under of the Scheme as the said note clearly provides that the age of superannuation for the member of Group D service shall be 60 years and as a member of Group D service means an employee drawing a scale of pay with a maximum of Rs.414/- or below. The petitioner further claims that his re-employment was approved by the State Government and as such be is entitled to pension and gratuity. In the supplementary affidavit the petitioner took up the plea in the manner following. 7. The clarification of the said scheme made on 16.9.1986 is wholly irrational, unreasonable and does not satisfy the twin test of classification on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and as such the said classification is ultra vires Articles 14, 16, 38, 39 and 41 of the Constitution. The petitioner challenged the Amendment to Rule 34 reducing the age of retirement to 58 years inasmuch as s. 224 provides that the said Rules which are to be placed before the State legislature not less than 14 days before within the meaning of Art. 200 of the Constitution before the State legislature on 253.1987 after publication on 16.9.86. 8. The petitioner with the leave of the Court filed supplementary affidavit which was affirmed on May 6.1987. The respondent also filed reply in answer to the said supplementary affidavit. The said affidavit in opposition to the said supplementary affidavit "as affirmed on May 18, 1937. The affidavit in reply on behalf of the petitioner in answer to the affidavit in opposition filed on behalf of the respondents has also been filed. The basic and fundamental stand has been taken in the supplementary affidavit. The said affidavit in opposition to the said supplementary affidavit "as affirmed on May 18, 1937. The affidavit in reply on behalf of the petitioner in answer to the affidavit in opposition filed on behalf of the respondents has also been filed. The basic and fundamental stand has been taken in the supplementary affidavit. The respondents in the affidavit in opposition along with various provisions referred to Rule 3) of the said Rules which inter alia contain provisions as regards the functions and duties of the Secretary of a Gram Panchayat. The respondents while admitting the pay scale of the petitioner fixed at Rs. 310/-attached to the post of Secretary, Gram Panchayat admitted that the petitioner was to retire on July 14.1981-the date he attained the age of superannuation as also the re-employment of the petitioner affected from time to time upto February 23, 1933. It is also an admitted position that the petitioner reached the age of superannuation of 60 years on 13.7.81 and retired with effect from July 14, 1981. The said affidavit in opposition pinpointed the amended Rule 34(2) of the said Rules which lays down the provisions for the age of superannuation of a Secretary i.e. 58 years, It further lays down that the age of superannuation of the Secretary who has not come under the said scheme for the employees of Panchayat bodies shall be 60 years. It is claimed that the amended Rule 34(2) is retrospective in nature. The scheme is neither an act nor a rule. The said scheme is a general policy of the Government for the benefit of the employees of Panchayat Bodies. Cabinet in its meeting held on August 13, 1986, approved the said scheme. The said scheme, according to the respondents, is meant for giving benefit to the Panchayat employees on such basis as is made applicable to the Government employees. Memo dated January 14, 1986 seeks to clarify the problem arising from a variety of factors namely as to how the excess service over 58 years between the period April 1, 1981 and August 13, 1985 is to be regularized. Government did not visualize the grant of double benefit. A Secretary of Gram Panchayat is not categorized as an employee belonging to Group D Service. Government did not visualize the grant of double benefit. A Secretary of Gram Panchayat is not categorized as an employee belonging to Group D Service. The petitioner is not entitled to claim the benefit of maximum service on the footing that he could not avail the maximum benefit which after refixation effected from April 1, 1981 could be availed by the petitioner. The petitioner was in the pay scale of Rs. 300-685/- together with allowance admissible in Rules. Reference was made to Group D Employees. Maximum pay of Group D employees is Rs. 414/- whereas the maximum pay of the Secretary of a Panchayat is Rs. 685/- per month. The petitioner cannot claim that he belonged to Group D employees which is meant for an employee drawing a pay or the scale of pay with maximum of Rs. 414/-. Pay of a peon and orderly in terms of ROPA Rules, 1981 is equivalent to that of Group D which is of two categories (1) from Rs. 220/- to Rs. 388/-, (2) Rs. 230/- to Rs. 414/-. The Scale of pay of. Lower Division Assistant is from Rs. 300/- to 685/-. The position of a Secretary of Gram Panchayat is equivalent to the post of Lower Division Clerk of Government establishment. After effectively referring the aspect as indicated above, respondents claimed that the classification is reasonable. Employee other than those belonging to Group D service retiring at the age of 60 years should get pensionary benefit. Writ petition is not maintainable on the ground of delay in making this Writ application. The petitioner retired from service with effect from July 14. 1981 and left after the expiration of the period of re-employment of service with effect from February 28,1983 and that there is no violation of the Rules of Natural Justice. Rule 34 being declaratory in character and nature can not be the subject matter of any challenge in a proceeding under Article 226. In the event the benefit under the said Scheme is granted to the petitioner there would be conferment of double benefit which is contrary to the said Scheme and also the decision of the Cabinet meeting. Rides, clarifications and the amendment have been made for the purpose of governing superannuation and re-employment of the Gram Panchayat Secretaries though the age of retirement prior to the introduction of the said Scheme was 60 years. Rides, clarifications and the amendment have been made for the purpose of governing superannuation and re-employment of the Gram Panchayat Secretaries though the age of retirement prior to the introduction of the said Scheme was 60 years. The very claim of the petitioner is without any basis in-as-much as the petitioner could not claim any pensionary benefits as there was no scheme at the time when the benefit accrued to the petitioner. The petitioner would not get any pensionary benefit. Further deference was made to S. 224(4) of the West Bengal Panchayat Act in support of the contention that the aforesaid provisions do not require that any Rule made under the said Act would be laid before the State Legislature for consultation and modification. Further reference was made to failure of the respondents that all rules shall be laid down 14 days before the State Legislature. As soon as possible, after they are made the Rule, should be accorded validity by the placement of the Rules 14 days before the State Legislature. 9. The respondents while referring to a catena of decisions as are indicated below claimed and contended that the petitioner being the Secretary of the Gram Panchayat should be treated as Class III employee and not an employee belonging to Group D service. Furthermore, the petitioner joined the service at an advanced age and was to retire with effect from July 13, 1981 i.e. at the age of 60 years (date of birth according to the School Certificate being 14.7.1921) and therefore the petitioner can not claim the maximum of the revised pay scale. The said Scheme came into force on and from 1st April 1981 and the pay scale of the petitioner was fixed from that date. The age limit of Group D service for availing all the benefits of the Scheme is at 60 years and it cannot be applicable in the case of the petitioner. The said scheme b fiscal in nature which involves governed expenditure. The Government and legislature have discretion in the matter of classification relating to fiscal enactment. Reliance has been placed on the decision of the Supreme Court in Gopichand & Saroja Prosad v. Union of India reported in 1973 ITR 263. The retirement age of the petitioner is 58 years. The said scheme b fiscal in nature which involves governed expenditure. The Government and legislature have discretion in the matter of classification relating to fiscal enactment. Reliance has been placed on the decision of the Supreme Court in Gopichand & Saroja Prosad v. Union of India reported in 1973 ITR 263. The retirement age of the petitioner is 58 years. Further reference was made on the following decisions: I) AIR 1951 SC 128 at page 130 (Keshvan v. State of Bombay). "Every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation". 2) AIR 1951 SC 124 (Janardhan Reddy v. The State). "Prima facie every legislation is prospective and there is no reason to depart from this rule of interpretation in the case of Art. 136 of the Constitution". 3) AIR 1960 SC 936 (Mahadeolal Kanodia v. State of West Bengal). "The principles that have to be applied for interpretation of statutory amendment taking away substantive rights are well established...............Taking away substantive rights are ordinarily Prospective they are retrospective only if by express words or by necessary implication the legislature has made them retrospective and the retrospective operation will be limited only to the extent to which it has been to made by express words or necessary implication". 4). AIR 1964 SC 1514 (Mst. Rafiquenessa v. Lal Bahadur Chhelri). The provision should normally be construed prospective in operation and not 'retrospective' unless the provision in question relates merely to a procedural matter". 5) AIR 1970 SC 705 (Arjan Singh v. State of Punjab). "It is well settled rule of construction that provision in a statute should be given 'prospective' effect unless the legislature by express terms or by necessary implications has made it 'retrospective". 10. The learned Counsel for the petitioner has referred to the following decisions. 1) AIR 1963 SC 913 State of Punjab Vs. Joginder. They started dissimilarly and they continued dissimilarly and any dissimilarity in their treatment would not be a denial of equal opportunity." 2) AIR 1983 SC 130 D.S. Nakara & Ors. Vs. Union of Indio. 10. The learned Counsel for the petitioner has referred to the following decisions. 1) AIR 1963 SC 913 State of Punjab Vs. Joginder. They started dissimilarly and they continued dissimilarly and any dissimilarity in their treatment would not be a denial of equal opportunity." 2) AIR 1983 SC 130 D.S. Nakara & Ors. Vs. Union of Indio. "Thus the fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question. ".........The thrust of Article 14 is that the citizen is entitled to equality before law and equal protection of law in the very nature of things the society being composed of unequal a Welfare State will have to strive by both executive and legislative action to help the less fortunate in society to ameliorate their condition so that the social and economic inequality in the society may be bridge. This would necessitate a legislation application to a group of citizens otherwise unequal and amelioration of whose lot is the object of state affirmative action. In the absence of the doctrine of classification such legislation is likely to flounder on the bed rock of equality enshrined in article 14. The Court realistically appearing the social stratification and economic' inequality and keeping in view the guidelines on which the State action must move as constitutionally laid down in Part IV of the Constitution, evolved the dectrine of classification. The doctrine was evolved to sustain a legislation or State action designed to help weaker sections of the society or some such of the society in need of succour. Legislative and executive action may accordingly be sustained if it satisfied the twin tests of reasonable classification and the rational principle corrected to the object sought to be achieved. The State, therefore, would have to affirmatively satisfy the Court that the twin tests have been satisfied.........The approach is noticed in Ramana Dayaram Shetty vs. International Airport Authority of India (1979) 3 SCR 1014 at p. 1034 ( AIR 1979 SC 1628 at pp. The State, therefore, would have to affirmatively satisfy the Court that the twin tests have been satisfied.........The approach is noticed in Ramana Dayaram Shetty vs. International Airport Authority of India (1979) 3 SCR 1014 at p. 1034 ( AIR 1979 SC 1628 at pp. 1637-38) when at page 1034 the Court observed that a discriminatory action of the Government is liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory. " "..........Since the advent of the Constitution, the State action must be directed towards attaining the goals set out in Part IV of the Constitution which, when achieved, would permit us to claim that we have set up a welfare State. Article 38( 1) enjoins the State to strive to promote welfare of the people by securing and protecting as effective as it may a social order in which justice social, economic and political shall inform all institutions of the national life. In particular the State shall strive to minimize eliminate inequalities in status, facilities and opportunities." "............Ordinarily therefore a socialist State provides for free education from primary to Ph. D. but the pursuit must be by those who have the necessary intelligent quotient and not as in our society where a brainy young man coming from a poor family will not be able to prosecute the education for want of where-withal while the ill equipped son or daughter of a well-to-do father will enter the portals of higher education and contribute to national wastage............But even there the less equipped person shall be assured a decent minimum standard of life and exploitation in any form shall be eschewed, There will be equitable distribution of national cake...............The old age overtakes each ore, death being the fulfillment of life providing freedom from bondage. But here socialism aims at providing an economic security to those who have rendered unto society what they were capable of doing when they were fully equipped with their mental and physical purposes. In the fall of life the State shall ensure to the citizens a reasonably decent standard of life, medical aid, freedom from want, freedom from fear and the enjoyable leisure, relieving the boredom and the humility of dependence in old age. In the fall of life the State shall ensure to the citizens a reasonably decent standard of life, medical aid, freedom from want, freedom from fear and the enjoyable leisure, relieving the boredom and the humility of dependence in old age. But we make it abundantly clear that arrears are not required to be made because to that extent the Scheme is prospective. The pensioners whenever they retired would be covered by the liberalized pension scheme, because the Scheme is a scheme for payment of pension to a pensioner governed by 1972 Rules...............The slab will provide slightly higher pension and if someone reaches the maximum the old lower ceiling will not deny him what is otherwise justly due on computation. The words who were in service on 31st March, 1979 and retiring from service on or after date excluding the date' for commencement of revision are words of limitation introducing the mischief and are vulnerable as denying equality and introducing an arbitrary fortuitous circumstance can be served without impairing the formula. Therefore, there is absolutely no difficulty in removing the arbitrary and discriminatory portion of the scheme and it can be easily served. 3) AIR 1981 SC l041-State of U.P. v. Ram Gopal. "There is no denying the fact that the rules regulating the conditions of service are within the executive power of the State of its legislative power under the proviso to Art. 309 but even so, such rules have to be reasonable, fair and not grossly unjust, if they are to survive the test of article 14 and 16 of the Constitution. 4) AIR 1955 Patna 352 Broj Nanda Prasad & Anr v. State of Bihar. ......I do not think that executive instructions issued by either the Government of India or the State Government can have any binding force on the interpretation of statutory rules. The Court must interpret the statutory rules in accordance with the language used in the statutory rules, in the light of well established rules of interpretation. 5) AIR 1955 Mysore at P. 147. "(ii) Even otherwise what was forbidden to be done without a license is the "installation of machinery...... The obligation under the bye law was penal and fiscal. The Court must interpret the statutory rules in accordance with the language used in the statutory rules, in the light of well established rules of interpretation. 5) AIR 1955 Mysore at P. 147. "(ii) Even otherwise what was forbidden to be done without a license is the "installation of machinery...... The obligation under the bye law was penal and fiscal. A provision of the kind had to be strictly construed and the ambiguity if any had to be regarded as helpful to the person sought to be made liable." 6) AIR 1986 SC 210 B. Prabhakar Rao & Ors. Stare of Andhra Pradesh & Ors. "If all affected employees hit by the reduction of the age of superannuation formed a class and no sooner than the age of superannuation was reduced, it was realised that injustice had been done and it was decided that steps should be taken to undo what had been done, there was no reason to pick out a class of persons who deserved the same treatment and exclude from the benefits of the beneficent treatment by classifying them as a separate group merely because of the delay in taking the remedical action already decided upon, Legislation to remedy wrongs but not to exclude from their purview a few of the wronged persons, unless the situation and the circumstances make the redressal of the wrong, in their Case, either impossible or so detrimental to the public interest that the mischief of the remedy outweighs the mischief sought to be remedied. ......unlike in the United Kingdom here in India we have a written Constitution which confers justifiable fundamental rights and so the very refusal to make an Act retrospective or the non-application of the Act with reference to a date or to an event that took place before the enactment may, by itself, create an impermissible classification justifying the striking down of the non-retrospectives of non-application clause, as offending the fundamental right to equality before the land and the equal protection of the laws." 11. Before dealing with the respective contentions of the parties on merits it is necessary to record that decisions thus cited at Bar ate not required to be gone into details inasmuch as the Court should avoid multiplication of decisions. 12. The facts not in dispute are as follows : The petitioners was aged 60 years on the date of superannuation. Before dealing with the respective contentions of the parties on merits it is necessary to record that decisions thus cited at Bar ate not required to be gone into details inasmuch as the Court should avoid multiplication of decisions. 12. The facts not in dispute are as follows : The petitioners was aged 60 years on the date of superannuation. The petitioner was allowed to be re-employed and continued to remain in service till February 28, 1983. The said scheme is of the year 1985. Rule 34(5) of the said Rules prior to amendment provide that a Secretary may on attaining the age of superannuation be re-employed for good and sufficient reason by the appointing authority, but in no case he should be retained after 65 years. The Calcutta Gazette Extra Ordinary (September 1986; further lays down that the Secretary shall not be retained beyond 62 years. 13. The period of re-employment was from August 1, 1981 to February 28,1983. The age of superannuation in terms of the amended Rule of the Secretary shall be 58 years provided the age of superannuation of the Secretary who has not come under the said Scheme for the employees of the Panchayat Bodies shall be 60 years. The said scheme and the amended Rule was bought to be enforced retrospectively. The petitioner did not get the benefit of the revised pay scale to its fullest extent inasmuch as on April 1, 1981 the petitioner was 59 years and odd and retired with effect from 13.7.1981. The decisions cited at the Bar, in my view, would have no assistance ill the facts and circumstances of the case. The petitioner was in active service till July 13,1981. The Scheme was published in the year 1986. Therefore, the Cabinet decision could not have any bearing on the question of interpretation of the statutory Rules which can only be interpreted by Court in the light of the well settled principle of interpretation. The said Scheme, inter alia provides for the age of superannuation at 58 years other Than the Group D service. Rule 16 further provides that any employee may be re-employed on or after the age of superannuation to any post under Panchayat Body with the prior approval of the State Government provided that he shall not earn any pension for the period of such re-employment. Rule 17 provides for fixation of pay during re-employment. Rule 16 further provides that any employee may be re-employed on or after the age of superannuation to any post under Panchayat Body with the prior approval of the State Government provided that he shall not earn any pension for the period of such re-employment. Rule 17 provides for fixation of pay during re-employment. Rule 23 lays down the provision for the determination of pension during the period of re-employment. Pension constitutes properties would be within the meaning of Article 300A of the Constitution. It is therefore, fit and proper to record the arbitrary classification of the date of retirement of 58 years for pension which is required to be decided on the touch-stone of the provisions of Articles 14 and 16 Article 14 being fatally allergic to arbitrariness forbids the same in law The contention of the respondents that such classification as made in the facts and circumstances of the case is neither arbitrary nor unreasonable. Such contention of respondents, in my view, cannot be sustained in the light of the Supreme Court's decision in the case of D.S. Nakara v. Union of India, and it must fail if it is accepted that retrospectivity is found to be legal then the very foundation, of the case of the petitioner ceased to exist, but that is not so. Right accrued to the petitioner constitutes right to property and that right can not be taken away by a fiat. Amendment rendering actual service, rendered by the petitioner non est is to be considered now. The employees of the Panchayat Bodies acquire statutory status. The amendment of clarification sought to be applied in the case of the present nature takes away or impairs any vested right acquired under the existing law, but that cannot contravene the fundamental or constitutional rights. Amendment rendering actual service, rendered by the petitioner non est is to be considered now. The employees of the Panchayat Bodies acquire statutory status. The amendment of clarification sought to be applied in the case of the present nature takes away or impairs any vested right acquired under the existing law, but that cannot contravene the fundamental or constitutional rights. Supreme Court in the case of State of Gujarat v. Ramanlal Keshablal Sehni while relying on the decision in B.S. Jadav v. State of Haryana reported in AIR 1981 Supreme Court 561 held as follows: "For the reasons, we reject the contention that the Governor has no power to make rule of seniority of the District and Sessions Judge." Therefore, the plea of the respondent that the Act being declaratory applicability of the doctrine of retrospectivity in the facts and circumstances of the case is merited as without any substance in as much as the legislation will remedy the wrong and not to exclude from their purview of a few of the wrong persons unless the situation and the circumstances make their redressal of the wrong in such case either prejudicial 'Or so detrimental to the public interest that mischief remedies outweighs the mischief sought to be remedied, Looked at this point the Court can not otherwise ignore the basic reality and it should be borne in mind that law is not logic but it is life and experience. What the respondents sought to achieve.? The State respondents sought to pass a scheme arbitrarily fixing the retirement at 58 years for/pension discriminating between two groups and then amended the retirement rules to 58 years without prospective operation. The petitioner has reiterated that he was in active service on the date of coming into operation of the said scheme. The scheme was made operative from April 1-1981 when the petitioner was in service, thereafter retired with effect from July 13, 1981 and was again re-employed with the prior approval of the State Government, in my view, can not adversely affect the right of the petitioner which is constitutional in character by issue of administrative instruction fixing the age of retirement for pension in case of certain class of employees. Rule 15 of the said Scheme militates the provisions of Articles 14, 16,38 and 41 Rule 5 of the said Scheme for the sake of convenience is quoted below: 5) Exercise of option : (A) (i) Every employee willing to came under the Scheme will have to exercise option in the prescribed form as per annexure 1 within 90 days from the date of issue of notice by Head of Office immediately after circulation of the scheme: Provided that in the case of an I employee, who is on leave or on deputation or on foreign service or under suspension on the date of issue of the notice in this regard, the said option shall be exercised not later than 90 days of the date of his return from such leave, deputation, foreign service or on resumption of duty after suspension, as the case may be. ii) If the option is not exercised by any individual employee within the time-limit referred to above, it will be deemed that he has not opted for coming under the scheme. iii) An employee who was in service on 1st April, 1981 but could not exercise option within the prescribed time-limit due to retirement or death shall be deemed to have opted for coming under the Scheme provided the benefit of Contributory Provident Fund was not paid to him or to his beneficiaries. iv) The option once exercised shall be final. B) Any employee appointed on or after the date of issue of the notice as referred to in sub-paragraph above, will come under the scheme automatically and no exercise of option is necessary in his case." Clause 3 of Rule 5 requires in-depth examination. The deeming provision has been introduced and by virtue of Rule 5(iii) of the said Scheme the petitioner, in my view, rightly claimed for the grant of pensionary benefit and paragraph 1 (a) of the notification is quoted below: "(1)(A) In some cases the normal age of superannuation of a Panchayat employee is 60 years or more. In the Death-Cum-Retirement Scheme, however, the age of superannuation for an employee (other than a member of Group 'D' service) shall be 58 years. As such an employee who opts to come under the Scheme shall have to retire after attaining the age of 58 years. In the Death-Cum-Retirement Scheme, however, the age of superannuation for an employee (other than a member of Group 'D' service) shall be 58 years. As such an employee who opts to come under the Scheme shall have to retire after attaining the age of 58 years. It has, however, been provided in the Scheme that an employee who was in active service under a Panchayat Body on or after 1.4.1981 but could not exercise option due to retirement or death shall be deemed to have opted for coming under the scheme. As the aforesaid Scheme was sanctioned in August, 1985, there may be some cases where an employee was in active service on or after 1.4.81 and attained the age of 58 years immediately thereafter and remained in service for another two years i.e. Upto 60 years of age. As for example, an employee, other than a Group 'D' employee was due to retire on attaining the age of 58 years with effect from 30.6.81. He continued in service till attaining the age of 60 years i.e. upto 30.6 1983 last working day). The questions therefore, arise - i) How the period of service rendered by him for the period from 1.7.81 to 30.685 be treated, and ii) how the pension and gratuity of the incumbent be fixed. In such a case- i) The period of service rendered by the incumbent for the period from 1.7.81 to 30.6 83 be treated as re-employment and post facto approval of the State Government may be obtained for such re-employment. While referring the case to the State Government the Service Book of the incumbent with up-to-date entries should be forwarded and pension and gratuity should be sanctioned only after approval for re-employment is accorded by the State Government. ii) For the purpose of determination of the amount of pension and gratuity the procedure detailed below should be followed: a) The pay at the time of attaining the age of 58 years on 30.6.81 be taken into account and the amount reckonable for pension be calculated in terms of para 22(a) of the Death-cum-Retirement Benefit Scheme."... The period of service rendered by the petitioner alter retirement till 28.2.1983 is to be considered in the light of approval of the State Government and Rule 5(iii) read with paragraph 1(a) of the said notification. The period of service rendered by the petitioner alter retirement till 28.2.1983 is to be considered in the light of approval of the State Government and Rule 5(iii) read with paragraph 1(a) of the said notification. On the basis, of the aforesaid provision the post facto approval of the State Government for such re-employment, pension and gratuity is merited and can not but be sanctioned after the approval of re employment is made. The petitioner was similarly re-employed and continued to remain as reemployed till February 28, 1983 and therefore he is entitled to pension and gratuity. Rule 4(6) of the said Scheme provides that in case where the Stale Government is satisfied that the operation of any of the provisions of the Scheme causes undue hardship the Government may by order dispense with or relax the provision of the said Scheme to such extent and subject to such condition as may be considered necessary for dealing with the case in a just and equitable manner. Now the question emerges; (i) why the State Government should not take into account the provisions of Rule 5(iii) read with paragraph 1(a) of the notification, (ii why the State Government should not dispense with or relax the requirement of the provisions of the said scheme to such extent and subject to such condition as it may consider necessary for dealing with the case of the petitioner in just and equitable manner. The State Government is also required to take into account that the basic pay of the petitioner as on -March 31,1981 was Rs. 214/-. The Scheme has been made operative with effect from April 1, 1981 Note given under Rule 15(3) of the said Scheme calls for a closer scrutiny. Note to Rule 15(3) is as follows:- "Member of 'Group D' service means an employee drawing a pay or a scale of pay with a maximum of Rs. 414/- or below." In the event of the aforesaid provision if otherwise applied the petitioner would straightway come within Group D service inasmuch as the pay scale of the Group D service fixed in the said scheme is Rs. 414/- or below. Mere nomenclature of the post held by the petitioner can not be a decisive factor for the purpose of considering the legitimate grievance of the petitioner. 414/- or below. Mere nomenclature of the post held by the petitioner can not be a decisive factor for the purpose of considering the legitimate grievance of the petitioner. The pay of the petitioner on March 31, 1981 is a decisive factor and that being so the petitioner is entitled to claim for superannuation at 60 years, If the contention of the respondents is accepted the petitioner would not have been allowed to continue till July 13, 1981 or on re-employment till February 28, 1981 or on re-employment till February 28. 1983. The plea of the respondents that the petitioner cannot be granted pension and gratuity, in my view, is not acceptable for the sole reason that the petitioner was all owed to continue till the attainment of 60 years and there after he was re-employed to continue till February 28, 1983. The said scheme and the amended Rules in the light of the judgment of the Supreme Court in the case of State of Gujarat v. Ramanlal Keshablal (supra) & B.S. Jadav v. State of Haryana, (supra) can not have retrospective operation in as much as the relevant provisions of the said Scheme and the amended Rules contravene Articles 14, 300(A). 38, 39 and 41 of the Constitution. The respondents allowed the petitioner to continue in service beyond 58 years and allowed him to continue in service on re-employment till February 28, 1983. It is, therefore, not fit and proper to accept the doctrine of retrospectivity as repeatedly pin-pointed by the learned counsel for the respondents with special reference to the decisions of the Supreme Court as are mentioned above. The said Scheme and the "mended Rules in the facts and circumstances of the case cannot have any retrospective operation. The State Government was required to take into account the factual aspect of the matter and thereafter apply the provisions of Rule 5(iii) of the said Scheme as also Paragraph 1 (a) of the said notification. The provisions of the said Scheme and the amended Rules are required to be read down in respect of those cases where the State Government allowed the employees of Panchayat Body to work beyond 58 years and thereafter re-employed him till attaining of the age of 61 years 7 months 18 days by construing the provisions prospective in nature. The provisions of the said Scheme and the amended Rules are required to be read down in respect of those cases where the State Government allowed the employees of Panchayat Body to work beyond 58 years and thereafter re-employed him till attaining of the age of 61 years 7 months 18 days by construing the provisions prospective in nature. Furthermore, if the said Scheme and the amended Rules are made applicable retrospectively then the actual service rendered beyond 60 years and the period of service on re-employment, for all practical purposes will stand forfeited and thereby grave injustice is worked out to the petitioner. The Court can not accept such arbitrary treatment to be meted out to the petitioner. On the contrary if the Court allows such injustice that will arm the respondents to deny the pension and gratuity to the petitioner. Such denial of the pension and gratuity would contravene both fundamental and constitutional rights of the petitioner. Therefore, the provisions of the Act can not be made applicable retrospectively nor the same can be construed in such manner as would render the actual period of service of the petitioner forfeited. Contentions of the respondents founded upon the decisions of the Supreme Court are not applicable in the facts of the case. They are glaringly distinguishable. None of the cases involve such situation as is presented in the case for the said decisions deal with cases of forfeiture of the actual period of service by an employee. On these two accounts the decisions thus cited by the learned counsel appearing on behalf of the respondents are not at all applicable. 14. The writ petition accordingly succeeds. The respondents are directed not to act on the basis of the provisions of the said Scheme and amended Rules and the Notifications on the footing that they are not retrospective in character. The respondents are further directed to grant pensionary benefit and gratuity to the petitioner after relaxing and/or dispensing with the conditions adversely affecting the right of the petitioner to receive the said pensionary and gratuity benefits within 12 weeks from the date of communication of this order. No order as to costs. Application allowed; provisions of the Scheme and the amended Rules held prospective; respondents directed to grant pension and gratuity to the petitioner.