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2012 DIGILAW 383 (ALL)

MOHD. HUSSAIN v. STATE OF U. P.

2012-02-10

MANOJ MISRA, SUNIL AMBWANI

body2012
JUDGMENT By the Court.—We have heard Sri K.A. Usmani, learned counsel for the petitioner. Learned Standing Counsel appears for the respondents. 2. The petitioner was appointed and was serving as Asstt. Engineer in the Irrigation Department. In his service record, his date of birth is recorded as 1.7.1949. The department retired him on superannuation on completing 60 years of age on 30.6.2009. 3. The petitioner made a representation that since his actual date of birth is 1.7.1949, he should be treated to be in service on 1.7.2009 and accordingly he was also entitled to the benefit of one increment, for the purposes of calculation of pension and other retiral dues. 4. The petitioner filed Writ Petition No. 14966 of 2010, Mohd. Hussain v. State of U.P. and others, which was disposed of with directions to the Deputy Director (Pension) to consider his representation dated 7.1.2010, in the light of the law laid down by the Supreme Court and this Court. 5. The petitioner has relied upon the judgment in the case of Ram Anjore Singh v. Union of India, 2007 LBESR 33, in which this Court relying upon the decision of the Supreme Court in the case of S. Banerjee v. Union of India, 1989 Supp. (2) SCC 486, held that the persons, who retired between 1.1.1986 to 30.6.1986, will be entitled to the benefit of the revision of pay scale. 6. The paragraphs 17 and 18 of the judgment in Ram Anjore Singh v. Union of India (Supra) are quoted as below : “17. This results to an inference that the last working day in the service of the Government servant is also the date of his retirement, but it cannot be said that the said Government servant would be entitled for pension on 31st December, 1995 and therefore is an existing pensioner or existing family pensioner on 31.12.1995. For the purposes of pension, he would be entitled to draw the same w.e.f. Ist January,1996 and not prior thereto. The O.M.- I is applicable to those who are not pre-1996 pensioners/family pensioners since they are governed by O.M.II. For the purposes of pension, he would be entitled to draw the same w.e.f. Ist January,1996 and not prior thereto. The O.M.- I is applicable to those who are not pre-1996 pensioners/family pensioners since they are governed by O.M.II. Since the petitioner cannot be said to be a pre-1996 pensioner/family pensioners, therefore in our view his case will be covered by O.M.I. It is not the case of the respondents that besides the aforesaid two office memorandums, there is any other office memorandum, which would be applicable to the cases which are not covered by the aforesaid two office memorandums. The view which we have taken has not been shown to be in consisted to any statutory provision and on the other hand since O.M.II is clearly applicable to pre-1996 pensioner/family pensioner, and the petitioner cannot be said to be a pensioner on 31st December, 1995 since that being the last working day and he being entitled for full salary, he would not be entitled for pension on 31st December, 1995, therefore the O.M.II has no application to his case, the same would have to be governed by O.M.I. 18. In this view of the matter, in our view, for the purposes of para 3.1 of O.M.I, the petitioner is entitled to be governed by the provision thereof as he retired on Ist January, 1996. The provision of OM-I, being beneficiary in nature, in the absence of any contrary, express or necessary implication, it should be given a meaning which may cover a larger number of persons without doing any violence to the language of the Statute. The judgment of Andhra Pradesh High Court in the case of R. Malazkondaiah and others (supra) relied upon by learned counsel for the petitioner, in our view does not apply to the facts of the present case, since the issue involved therein was different and the provision up for consideration before the Andhra Pradesh High Court was also in different context.” 7. While deciding the earlier writ petition this Court in the judgment to which one of us (Hon. Sunil Ambwani, J.) was a member held as follows : “If the date on which the Government servant retires is treated as last working day, the next day will be the date on which the Government servant retires. While deciding the earlier writ petition this Court in the judgment to which one of us (Hon. Sunil Ambwani, J.) was a member held as follows : “If the date on which the Government servant retires is treated as last working day, the next day will be the date on which the Government servant retires. In para 6 of the judgment it was held that the employees retiring on January Ist, 1986 will be entitled to the benefit of para 17.3 of the report of the Pay Commission, admitting him to the benefits of the revision in the pay scales. Following the aforesaid pronouncement of law, we are of the opinion that since the petitioner was retired on 30.6.2009, his last working day shall be treated as 30.6.2009 and that he would be retired on 1.7.2009. Since he was to be given benefit of one increment according to his date of birth (1.7.1949), he would have retired on 1.7.2009 taking with him the benefit of one increment payable to him in 2006 entitled to calculation of his pension accordingly.” 8. The representation in pursuance to the order passed by this Court on 23.3.2009 was decided and rejected by the Addl. Director, Treasuries and Pension, Allahabad Division, Allahabad. The Addl. Director relied upon Government Order dated 28.7.1989, in which in view of Para 6, Chapter-1 (Rules and Procedures) Para 3 (B), it is provided that where the date of birth of Government servant is the first date of the month, he will retire on the last day of the previous month. Since the petitioner’s date of birth is 1.7.1949 and he was retired in accordance with Rules on 30.6.2009. Since he was not in service on 1.7.2009, there was no question of giving him increment and for recalculating the pension. 9. Shri K.A. Usmani, learned counsel for the petitioner submits that this Court while giving direction in its order dated 23.3.2010 deciding Writ Petition No. 14966 of 2010, relied upon S. Banerjee v. Union of India, 1990-LIC-O-298, and held that the date of petitioner’s retirement shall be treated to be his last working day and the next day will be the date on which he retires, and consequently the petitioner should be allowed the benefit of one increment payable to him. Consequently he will be entitle to recalculation of his pension accordingly. 10. Consequently he will be entitle to recalculation of his pension accordingly. 10. Learned Standing Counsel submits that the reliance upon S. Banerjee v. Union of India (Supra) and followed in Ram Anjore Singh v. Union of India (Supra) was not appropriate in as much as both the cases related to the benefit of revised pension. 11. Learned Standing Counsel states that in the case of retirement on attaining superannuation the ratio of the judgment in S. Banerjee v. Union of India (Supra) and in Ram Anjore Singh v. Union of India (Supra) will not be applicable. He submits that in the counter-affidavit of Shri Guleshwar Prasad, Asstt. Engineer, Irrigation-I Division, Allahabad the same stand has been taken. The petitioner with his date of birth as 1.7.1949, had retired on 30.6.2009. He was not in service on 1.7.2009, to receive the benefit of the increment. 12. We find considerable force in the argument of learned Standing Counsel. In Achhaibar Maurya v. State of U.P. and others, Appeal (Civil) No. 5877 of 2007 decided on 13.12.2007 the Supreme Court held as follows : “7. The question in regard to the determination of age of superannuation of an employee is governed by the Rules. Indisputably, the terms and conditions of service of an Assistant Teacher are governed by the provisions of 1972 Act and the Rules framed under sub-section (1) of Section 19 thereof. The Rules were amended on or about 12th June, 1989. In terms of Rule 29, a teacher is to retire on the date on which he had completed 60 years on the last day of month when the person is born. 8. As the appellant was born on 1st July, 1943, he would retire on 30th June, 2003. The question as to whether he would obtain the benefit of extended period of service upto 30th June and the next year will depend upon the situation as to whether the teacher retires on or after 1st July or not. 9. In Khan Chandra Madhu (supra), the learned Judge proceeded on the basis that the academic session starts on 2nd July and ends on 30th June. 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. 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 employees 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 (supra). 10. In S. Benerjee v. Union of India and others [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 1st January, 1986. In that view of the matter, he was found to be entitled to the benefit of paragraph 17.3 of the recommendations of the Pay Commission. It was urged that the appellant was entitled to a hearing 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 Re Shurey Savory v. Shurey (L.R. (1918) 1 Ch.263) and Rex v. Scoffin (L.R. (1930) 1 KB 741)]. 11. This Court in Prabhu Dayal Sesma v. State of Rajasthan and another [ AIR 1986 SC 1948 ] held : “In calculating a persons 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.” 12. It is interesting to note, however, that the common law rule stated in Re Shurey Savory (supra) in respect of anniversaries has been abrogated by virtue of the Family Law Reform Act, 1969. It is interesting to note, however, that the common law rule stated in Re Shurey Savory (supra) in respect of anniversaries has been abrogated by virtue of the Family Law Reform Act, 1969. The effect of the change is that, in respect of anniversaries falling after 1 January, 1970, the time at which a person attains a particular age expressed in years is the commencement of relevant anniversary of the date of his birth. [See Halsburys Laws, 4th Edition Reissue, Page 209]. We do not have such statute. We have, therefore, to determine the cases on the touchstone of statute operating in the field and in absence thereof by common law principle.” 13. We do not find that the respondents have committed any error of law in appreciating the principles of law as well as the statutory rules applicable to the Government servants, consequently the petitioner, in the present case, would retire on 30th June, 2009. He was not in service on 1st July, 2009 to claim the benefit of increment. 14. The writ petition is dismissed. Our judgment in Writ Petition No. 14966 of 2010, Mohd. Husain v. State of U.P. and others, dated 23.3.2010 will consequently stand modified.