JUDGMENT By the Court.—Heard Sri R.K. Porwal, learned Counsel appearing for the appellant. 2. This is an appeal against the judgment and order dated 9th September, 2002 passed by learned Single Judge by which order the writ petition filed by the appellant was dismissed. 3. The appellant filed the writ petition by which he challenged the Government order dated 18th October, 1997 by which Government order it was provided that benefit of the Government order shall be given to the teachers and non-teaching employees, who retired on the date of issue of the Government order or thereafter. The appellant had earlier filed a writ petition being Writ Petition No. 41235 of 1998 praying that his period of service in Junior High School from 25th July, 1959 up to 13th September, 1969 be added in his service in Sri Shiv Narain Inter College from where he retired. This Court disposed of the writ petition directing the Joint Director of Education to decide the representation. The Joint Director of Education vide his order dated 19th March. 1999 took a decision that the period of services of the appellant in Parisadiya institution cannot be added in his service in Inter College since he has retired prior to 18th October, 1997 and the benefit of the Government order was given to those employees who had retired either on 18th October, 1997 or thereafter. The petitioner had challenged both the orders in the writ petition which was dismissed by the learned Single Judge. 4. Learned Counsel for the appellant contends that appellant fulfils all the condition of the Government order except condition of cut-off date. Learned Counsel for the appellants further contends that cut-off date fixed in the Government order dated 18th October, 1997 is arbitrary. He submits that appellant was also a pensioner and fixing of cut-off date by a Government order was arbitrary and without any rational basis. He has placed reliance on a judgment in the case of D.S. Nakara and others v. Union of India, A.I.R. 1993 SC 130. 5. We have considered the submissions of learned Counsel for the appellant and perused the record. 6. The submission, which has been pressed before us, is with regard to cut-off date fixed in the Government order dated 18th October, 1997. Learned Counsel for the appellant contended that the cut-off date is arbitrary since there is no rational basis for fixing cut-off date. 6. The submission, which has been pressed before us, is with regard to cut-off date fixed in the Government order dated 18th October, 1997. Learned Counsel for the appellant contended that the cut-off date is arbitrary since there is no rational basis for fixing cut-off date. He submitted that merely because the appellant had retired prior to cut-off date, he cannot be denied the benefit. Reliance was placed upon the judgment in D.S. Nakara’s case (supra). In the said judgment following was laid down in paragraph 49 : “49. But we make it abundantly clear that arrears are not required to be made because to that extent the scheme is prospective. All pensioners whenever they retired would be covered by the liberalised pension scheme, because the scheme is a scheme for payment of pension to a pensioner governed by 1972 Rules. The date of retirement is irrelevant. But the revised scheme would be operative from the date mentioned in the scheme and would bring under its umbrella all existing pensioners and those who retired subsequent to that date. In case of pensioners who retired prior to the specified date, their pension would be computed afresh and 198 would be payable in future commencing from the specified date. No arrears would be payable. And that would take care of the grievance of retrospectivity. In our opinion, it would make a marginal difference in the case of past pensioners because the emoluments are not revised. The last revision of emoluments was as per the recommendation of the Third Pay Commission (Raghubar Dayal Commission). If the emoluments remain the same, the computation of average emoluments under amended Rule 34 may raise the average emoluments, the period for averaging being reduced from last 36 months to last 10 months. 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 the 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 severed 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 severed.” 7. Therefore, there is absolutely no difficulty in removing the arbitrary and discriminatory portion of the scheme and it can be easily severed.” 7. The challenge is that there is no rational basis for fixing the cut­off date. The Government order dated 18th October, 1997 provides that the services rendered in any Government Department/Government Institution can be added in the services of an employee of aided Higher Secondary Schools for the purposes of pension on fulfilling the conditions. The Government order itself makes it clear that those employees who have retired prior to issuance of the Government order, shall not be given the said benefit. The appellant who had retired from an Intermediate College was governed by the pension scheme, namely, Uttar Pradesh Contributory Provident Fund Insurance Pension Rules, which came into force on October 1, 1964. The said Rule did not provide for adding services rendered in any other institution or department. This was the reason why the Government order was issued on 18th October, 1997 making it permissible to add the service rendered in other Government Department or aided institutions. The respondents for the first time brought a provision giving the benefit of adding the period of service rendered in Government Department or aided institutions on fulfilment of certain conditions. The said Government order was applied to those teachers and non-teaching staff who were in service and retired on the date of issue of the Government order or thereafter. 8. The cut-off date, which was fixed in the Government order has rational basis since it provided a classification between the employees who were already retired and those who were in service. The benefit was given only to those employees who have rendered services in some other Government Institution or Department on fulfilment of certain conditions including deposit of contribution in the Treasury. Due to the said reason the Government decided to make the Government order applicable to those employees who were in service on the date of issue of the Government order. Thus the basis of fixing a cut-off date has rational basis and it cannot be said that the same is arbitrary. 9. The judgment of the Apex Court in D.S. Nakara’s case (supra) is not applicable in facts of the present case since in the said case the benefit of liberalised pension were arbitrarily withheld from one class of the employee, who had retired. 9. The judgment of the Apex Court in D.S. Nakara’s case (supra) is not applicable in facts of the present case since in the said case the benefit of liberalised pension were arbitrarily withheld from one class of the employee, who had retired. In the said case before the Apex Court the liberalised pension scheme has to be applied to all pensioner and from the date of retirement no distinction could have been made for applicability of the liberalised pension. Present is a case where benefit of adding of service rendered in other department for the first time was extended by the Government on certain conditions, hence cut-off date fixed in the Government order cannot be said to be arbitrary. 10. The Apex Court had occasion to consider almost similar submissions in the case of Commander Head Quarter, Calcutta and others v. Capt. Biplabendra Chanda, (1997)1 S.C.C. 208 . In the said case the respondent had retired on 18th May, 1982 and according to the Rules, as in force at that time, only 2/3rd of the pre-commissioned service was allowed to be counted towards qualifying service for earning pensionary benefit. A minimum period of qualifying service was also provided for becoming eligible for pension on the basis of which the respondent was found ineligible for grant of pension. After about four years Rules relating to qualifying service were changed with effect from 1st January, 1986. One of the features of the amended Rules was that full pre-commissioned service was to be taken into count for working out the qualifying service required for earning pensionary benefits. The submission was raised before the Apex Court that amended Rules are discriminatory and violates the principles as laid down by the Apex Court in D.S. Nakara’s case (supra). The Apex Court repelled the submission and laid down that there was no question of discrimination between similarly situated persons. Following was laid down in paragraphs 4 and 5 of the said judgment : “4. We are of the opinion that the ratio of D.S. Nakara has no application here. D.S. Nakara prohibits discrimination between pensioners forming a single class and governed by the same Rules. It was held in that case that the date specified in the liberalised pension Rules as the cut-off date was chosen arbitrarily. What is not the case here. We are of the opinion that the ratio of D.S. Nakara has no application here. D.S. Nakara prohibits discrimination between pensioners forming a single class and governed by the same Rules. It was held in that case that the date specified in the liberalised pension Rules as the cut-off date was chosen arbitrarily. What is not the case here. No pension was granted to the respondent because he was not eligible therefor as per the Rules in force on the date of his retirement. The new and revised Rules [it is not necessary for the purpose of this case to go into the question whether the Rules that came into force with effect from January 1, 1986 were new Rules or merely revised or liberalised Rules] which came into force with effect from January 1, 1996 were not given retrospective effect. The respondent cannot be made retrospectively eligible for pension by virtue of these Rules in such a case. This is not a case where a discrimination is being made among pensioners who were similarly situated. Accepting the respondent’s contention would have very curious consequences even a person who had retired long earlier would equally become eligible for pension on the basis of the 1986 Rules. 5. The decision in D.S. Nakara has indeed been explained by two subsequent Constitution Bench decisions of this Court in Krishna Kumar and others v. Union of India and others, 1990 (4) S.C.C. 207 and Indian Ex-Services League and others etc. v Union of India and others etc., 1991 (1) S.C.R. 158 . In the later decision, it has been held that “the petitioners’ claim that all pre-1.4.1979 retirees of the Armed Forces are entitled to the same amount of pension as shown in appendices ‘A’, ‘B’ and ‘C for each rank is clearly untenable and does not flow from the Nakara decision”. We may also refer in this connection to the observations in another decision of this Court in State of West Bengal v. Ratan Behari Dey, 1993 (4) SCC 62 to the following effect : “....it is open to the State or to the Corporation as the case may be, to change the conditions of service unilaterally. Terminal benefits as well as pensionary benefits constitute conditions of service. The employer has the undoubted power to revise the salaries and/or the pay scales as also terminal benefits/pensionary benefits. Terminal benefits as well as pensionary benefits constitute conditions of service. The employer has the undoubted power to revise the salaries and/or the pay scales as also terminal benefits/pensionary benefits. The power to specify a date from which the revision of pay scales or terminal benefits/pensionary benefits, as the case may be, shall take effect is a concomitant of the said power. So long as such date is specified in a reasonable manner, i.e., without bringing about a discrimination between similarly situated persons, no interference is called for by the Court in that behalf .....the power of the State to specify a date with effect from which the Regulations framed or amended, as the case may be, shall come into force is unquestioned, a date can be specified both prospectively as well as retrospectively. The only question is whether the prescription of the date is unreasonable or discriminatory. Since we have found that the prescription of the date in this case is neither arbitrary nor unreasonable, the complaint of discrimination must fail.” 11. Again in the case of State of W.B. and another v. W.B. Govt. Pensioners’ Associations and others, (2002) 2 SCC 179 the Apex Court considered D.S. Nakara’s case (supra) and repelled the similar submissions upholding the cut-off date. Paragraphs 10 and 14 of the judgment are relevant and quoted as below : “10. The subject matter of decision in that case was an Office Memorandum dated 25.5.1979 by which the Ministry of Finance, Government of India propounded a liberalised formula for computation of pension and made it applicable to Government servants who were in service on 31.3.1979 and retired from service on or after that date. Pre-1979 retirees were being paid pension on the basis of average emoluments of 36 months’ salary which preceded the date of retirement. The liberalised formula provided for (i) average emoluments with reference to the last 10 months of service; (ii) a higher minimum ceiling on the pension payable and (iii) introduced a slab system for computation of pension. After an exhaustive review of decisions relating to Article 14 of the Constitution, the Court held that pension was not only compensation for loyal- service rendered in the past but was a measure of social economic justice, and that there was no reason given for choosing 1.4.1979 as a cut-off date for applying the formula. After an exhaustive review of decisions relating to Article 14 of the Constitution, the Court held that pension was not only compensation for loyal- service rendered in the past but was a measure of social economic justice, and that there was no reason given for choosing 1.4.1979 as a cut-off date for applying the formula. In coming to the conclusion that the cut off date was invalid and must be struck down and that the liberalised formula must be made available to all pensioners, the Court noted that it was not a case of contributable scheme or a pension fund from which alone the pension was to be disbursed neither was it a new retiral benefit but it was an “upward revision of an existing benefit”. The argument of the Government regarding the non- availability of funds was found unacceptable since, it was said, that application of the same pension formula to all pensioners would only make a marginal difference in the case of past pensioners because the emoluments were not revised and all that the old pensioners would get by reason of computation on the liberalised formula would be a slightly higher pension. 14. Illustrative of another aspect of the Nakara principle, is the decision in Commander Head Quarter, Calcutta and others v. Capt Biplabendra Chanda. which said that the requirement of equality prescribed by Nakara did not extend to a new retiral benefit but was limited only to an upward revision of an existing benefit. It was held therefore that a person who was not entitled to receive pension on the date of his retirement could not claim a grant of pension because of a subsequent change in the criteria of eligibility for such grant. [See also Union of India and others v. Dr. Vijaypurapu Subbayama, 2000 (7) SCC 662 and V.N.Kasturi v. Managing Director, State Bank of India, Bombay and another 1988 (8) SCC 30.” 12. In view of the aforesaid, we do not find any error in the order of learned Single Judge dismissing the writ petition, however, for the reasons as noted above. 13. The special appeal is dismissed. ————