Judgment :- Appellants have challenged the order dated 28.7.2005 made in WP. 17737/2000 on the file of the learned Single Judge holding that the respondent who was born on 1.1.1944, attained 52 years of superannuation on 1.1.1996 and, directed the appellants to extend the monetary benefits is accordance with law. 2. Brief facts of the case leading to the filling of the appeal may be stated as under: The respondent party in person filed a writ petition contending that he was working as Colonel and attained the age of superannuation at 52 years on 1.1.1996, not on 31.12.1995 and therefore, he was entitled for the benefits of the 5th Pay Commission which came into force on 1.1.1996. The contention of the respondent is that as per Service Rules the petitioner who was born on 1.1.1944 retired on 31.12.1995. Learned Single Judge accepted the contention of the petitioner and allowed the petition. This is impugned in this appeal. 3. Learned counsel for the appellants submit that as per Rule 56 of Fundamental Rules, a government servant whose date of birth is the first of a month, shall retire from service on the afternoon of the last date of the preceding month on attaining the age of 52 years and the respondent who was born on 1.1.1944 retired on 31.12.1995 and therefore, he was not entitled for the benefits of the 5th Pay Commission which came into force on 1.1.1996. He has cited the following decisions: (1) AIR 2006 SC 171 (State of Punjab & Ors Vs Amar Nath Goyal & Ors) on the point, policy decision by Central Government/State Governments to limits benefits only to employees, who retire or die on or after 1.4.1995, after calculating financial implications thereon is neither irrational nor arbitrary. (2) 2008 AIR SCW 2317 (Government of AP & Ors Vs N. Subbarayudu & Ors) – In this case, the Apex Court has held that “in a catena of decision of this Court, it has been held that the cut off date is fixed by the executive authority keeping in view the economic conditions, financial constrains and many other administrative and other attending circumstances. This court is also of the view that fixing cut off dates is within the domain of the executive authority and the Court should not normally interfere with the fixation of cut off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary (vide para 5). In para 6 it is held that “no doubt in D.S. Nakara & Ors Vs Union of India 1983 (1) SCC 305 this Court had struck down the cut off date in connection with the demand of pension. However, in subsequent decisions this Court has considerably watered down the rigid view taken in Nakara’s case (supra), as observed in para 29 of the decision of this Court in State of Punjab & Ors Vs. Amar Nath Goyal & Ors case”. (3) 2008 AIR SCW 2056 (Achhaibar Maurya Vs. State of U.P & Ors) on the point that cut off date fixed by the 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 therefore a valid provision may not be held to be invalid on the touchstone of Arts.14 or 16 of the Constitution of India. (4) AIR 2004 SC 1459 (Ramrao & Ors Vs. All India Back Employees Welfare Association & Ors) on the point that unless cut off date so fixed is held to be arbitrary or unreasonable, it cannot be set aside as offending Art.14. (5) 2004(2) Kar.L.J 193 (DB) – (Union of India & Ors Vs Y.N.R. Rao) on the point that a government servant who retires on the afternoon of 31.3.1995 retires on 31.3.1995 and not on 1.4.1994 (vide para 5 of the judgment). 4. On the other hand, the respondent party in person vehemently contended that learned Single Judge has rightly held that he retired on 1.1.1996, and the respondent was entitled for the benefit of the 5th Pay Commission Report which came into force on 1.1.1996. 4. On the other hand, the respondent party in person vehemently contended that learned Single Judge has rightly held that he retired on 1.1.1996, and the respondent was entitled for the benefit of the 5th Pay Commission Report which came into force on 1.1.1996. He also submits that a person born on 2nd of a month is entitled to retire at the end of that month; whereas the respondent who was born on 1st of the month was not extended the benefit of retiring at the end of the same month in which he was born and therefore, there is discrimination. The respondent – party in person has cited the following decision: (1) (1983) 1 SCC 305 (D.S. Nakara & Ors Vs Union of India) on the point of making of classification and further classification must be for a valid purpose and over classification may be hit by Article 14. (2) 2005 SCC (L & S) 433 – Food Corpn. of India & Ors Vs Bhanu Lodh & Ors.) on the point, discrimination, if any, can only arise as between the persons who are similarly, if nor identically situated. (3) (2003) 7 SCC 628 (Balram Kumawat Vs. Union of India Ors) on the point, clauses of a statute should be construed with reference to the context vis-à-vis the other provisions so as to make a consistent enactment of the whole statute relating to the subject matter. (4) Unreported decision rendered in Civil Appeal 3972/2001 dated 29.9.2006 (M/s ISPAT Industries Ltd Vs Commissioner of Customs, Mumbai) while dealing with the point as to administrative orders or executive instructions without any statutory backing, it is held that ‘if there is any conflict between the provisions of the Rules, the former will prevail. However, every effort should be made to given an interpretation to the Rules to uphold its validity. (5) ILR 2004 Kar 1482 (R.S. Trikannad Vs Vijaya Bank, Rep. by its General Manager (Personnel), Bangalore) on the point that petitioner retired 31.12.1985 after the close of office hours means that he has retired on 1.1.1986 and the petitioner satisfies the first condition under Regulation 3(1)(a) of the Central Civil Service Rules, 1972 – Central Civil Service (Commutation of pension) Rules, 1981 and therefore, entitled to pension. by its General Manager (Personnel), Bangalore) on the point that petitioner retired 31.12.1985 after the close of office hours means that he has retired on 1.1.1986 and the petitioner satisfies the first condition under Regulation 3(1)(a) of the Central Civil Service Rules, 1972 – Central Civil Service (Commutation of pension) Rules, 1981 and therefore, entitled to pension. (6) At Full Bench Judgments 1997-2001 Pg.50 (Venkatram Rajagopalan & Anr Vs Union of India & Ors) on the point, a government servant completing the age of superannuation on 31.3.1995 is deemed to have retired effectively only on 1.4.1995. 5. In view of the arguments address by the learned counsel for the parties, the short question that arises for our consideration is whether the respondent whose date of birth is 1.1.1944 retired on 31.12.1995 or on 1.1.1996. 6. Our answer to the above point is that the respondent retired on 31.12.1995 and not 1.1.1996. As per rule 16(a) of the Army Rules which deals with superannuation, a government servant whose date of birth is the first of a month shall retire from service on the afternoon of the last date of the preceding month on attaining the age of superannuation. The Division Bench of this Court in 2004(2) Kar.L.J 193 (DB) after referring to proviso to clause (a) of Rule 56 of Fundamental Rules 56 which provides that an employee whose date of birth is the 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, held that the respondent in the above said case retired on 31.3.1995 and not on 1.4.1995. In view of the Division Bench decision of this Court in the above said case, the decision reported in ILR 2004 Kar 1482 ((R.S. Trikannad Vs. Vijaya Bank, Rep, by its General Manager (Personnel), Bangalore which decision is relied upon by the learned Single Judge is not correct. Further, the decision followed by the learned Single Judge reported in At Full Bench Judgments 1997-2001 Pg.50 (Venkatram Rajagopalan & Anr Vs Union of India & Ors) is not correct. 7. The contention of the learned counsel for the respondent that a person born on 2.1.1994 was extended the benefit of 5th Pay Commission whereas the respondent who was born on 1.1.1994 was denied the benefit cannot be held as infringement of Art.14 of the Constitution. 8. 7. The contention of the learned counsel for the respondent that a person born on 2.1.1994 was extended the benefit of 5th Pay Commission whereas the respondent who was born on 1.1.1994 was denied the benefit cannot be held as infringement of Art.14 of the Constitution. 8. In the decision reported in AIR 2006 SC 171 supra, the Supreme Court has held that policy decision by the Central Government/State Governments to limit benefits only to employees who retire or die on or after 1.4.1994 is neither irrational nor arbitrary and also held that the decision rendered in D.S. Nakara’s case has watered down the rigid view. 9. The decision reported in 1989 Supp. 2 SCC 486 (S. Benerjee Vs. Union of India & Ors) has been followed by the learned Single Judge while passing he impugned order. In that case the appellant had field an application for voluntary retirement which was accepted from the forenoon of 1st January, 1986 and in that view of the matter, he was found to be entitled to the benefit of para 17.3 of the recommendation of the Pay Commission. This decision is not applicable to the case of the respondent in the instant case as per Army Rules, which is applicable to be respondent who retired on 31.12.1995. None of the decision cited by the respondent are applicable to the case on hand. On the other hand, the decision cited by the learned counsel for the appellants are applicable on all the fours to the case on hand and the impugned order calls for interference. 10. In the result, we pass the following order. Appeal is allowed and the impugned order of the learned Single Judge in W.P 17737/2000 dated 28.7.2005 is set aside. No costs.