Judgment :- 1. The petitioner prays for issuance a writ in the nature of Certiorari, to quash the order denying the benefit in terms of G.O.Ms.No.461 Finance (Pension) dated 31.07.1996 and G.O.Ms.No.488 Finance (Pension dated 12.08.1996 with a consequential relief of issuance of writ in the nature of mandamus, directing the respondents to give benefit of the Government orders and refix the pension and other retirement benefits. 2. The petitioner was appointed as Auditor in the Local Fund department through Tamil Nadu Public Service Commission. The petitioner after joining, passed all the requisite departmental test and held various promotional posts. 3. The petitioner on the date of his retirement on 30.06.1996 held the post of Deputy Director and was on deputation as Finance Officer in the Bharathiar University. 4. The retirement benefits of the petitioner were settled on 50% of the average emoluments of the preceding 10 months as per the rules then in force. 5. The Government of Tamil Nadu implemented the recommendations of Vth Pay Commission with effect from 01.07.1996. Subsequently, the Government of Tamilnadu, vide G.O.Ms.No.461 Finance (Pension) dated 30.07.1996 directed the fixation of pension be determined on the basis of 50% average emoluments drawn during the last 10 months of service rendered or 50% of the pay last drawn by the Government servant, whichever is higher. This order was made applicable to the Government employees retiring on or after 01.07.1996 6. Thereafter, vide G.O.Ms.No.488 Finance (Pension) dated 12.08.1996, it was ordered that at the time of retirement; (1) 50% of the leave on private affairs standing to the credit of the employees, upto the maximum of 90 days can also be encashed. (2) That Full leave salary including Dearness Allowance and all other allowances normally admissible while going on leave during service, be allowed for the entire period of earned leave encashed at the time of retirement. This order gave effect from 11.07.1996. 7. The case of the petitioner is that the benefits have been denied to the petitioner only on the ground that he retired from service on superannuation on the afternoon of 30.06.1996. Whereas benefits have been made applicable with effect from 01.07.1996. 8. This order gave effect from 11.07.1996. 7. The case of the petitioner is that the benefits have been denied to the petitioner only on the ground that he retired from service on superannuation on the afternoon of 30.06.1996. Whereas benefits have been made applicable with effect from 01.07.1996. 8. It is further submitted, that the Honble Full Bench of the Central Administrative Tribunal had gone into this question and authoritatively laid down as under: "An employee retiring from service on the afternoon of the last day of the month is deemed to be continuing till midnight of that day and accordingly, for all practical and technical purpose, he must be deemed to have ceased from service or to have actually retired from service on and from the next date of attaining superannuation i.e. With effect from the first of the month following the last day of the month of superannuation." 9. Though the writ petition is filed challenging the refusal to grant benefits of the Government orders, on the ground of that the petitioner should be deemed to have been retired on 01.07.1996 therefore, is entitled to benefit as held by Full Bench of the Central Administrative Tribunal. 10. At the time of arguments, the learned counsel for the petitioner also contended that denial of benefits to the person who retired prior to 01.07.1996 and those who retired on the same date and after the date is violative of Article 14 and 16 of the Constitution of India, as it would amount to creating a class within the class. 11. In support of this contention, the learned counsel for the petitioner placed reliance on the judgment of the Honble Supreme Court in the case of Union of India and another vs SPS Vains (Retd.) and another [(2008)9 SCC 125] "(26.) The question regarding creation of different classes within the same cadre on the basis of the doctrine of intelligible differentia having nexus with the object to be achieved, has fallen for consideration at various intervals for the High Courts as well as this Court, over the years. The said question was taken up by a Constitution Bench in the case of D.S. Nakara (supra) where in no uncertain terms throughout the judgment it has been repeatedly observed that the date of retirement of an employee cannot form a valid criterion for classification, for if that is the criterion those who retired by the end of the month will form a class by themselves. In the context of that case, which is 20 similar to that of the instant case, it was held that Article 14 of the Constitution had been wholly violated, inasmuch as, the Pension Rules being statutory in character, the amended Rules, specifying a cut-off date resulted in differential and discriminatory treatment of equals in the matter of commutation of pension. It was further observed that it would have a traumatic effect on those who retired just before that date. The division which classified pensioners into two classes was held to be artificial and arbitrary and not based on any rational principle and whatever principle, if there was any, had not only no nexus to the objects sought to be achieved by amending the Pension Rules, but was counter productive and ran counter to the very object of the pension scheme. It was ultimately held that the classification did not satisfy the test of Article 14 of the Constitution. (27.) The Constitution Bench has discussed in detail the objects of granting pension and we need not, therefore, dilate any further on the said subject, but the decision in the aforesaid case has been consistently referred to in various subsequent judgments of this Court, to which we need not refer. (28.) In fact, all the relevant judgments delivered on the subject prior to the decision of the Constitution Bench have been considered and dealt with in detail in the aforesaid case. (29.) The directions ultimately given by the Constitution Bench in the said case in order to resolve the dispute which had arisen, is of relevance to resolve the dispute in this case also. Union Of India And Anr. vs Sps Vains (Retd.) And Ors. on 9 September, (30.) However, before we give such directions we must also observe that the submissions 22 advanced on behalf of the Union of India cannot be accepted in view of the decision in D.S. Nakaras case (supra). Union Of India And Anr. vs Sps Vains (Retd.) And Ors. on 9 September, (30.) However, before we give such directions we must also observe that the submissions 22 advanced on behalf of the Union of India cannot be accepted in view of the decision in D.S. Nakaras case (supra). The object sought to be achieved was not to create a class within a class, but to ensure that the benefits of pension were made available to all persons of the same class equally. To hold otherwise would cause violence to the provisions of Article 14 of the Constitution. It could not also have been the intention of the authorities to equate the pension payable to officers of two different ranks by resorting to the step up principle envisaged in the Fundamental Rules in a manner where the other officers belonging to the same cadre would be receiving a higher pension." 12. The question with regard to fixation of cut-off date in respect of grant of pension was considered by the Honble Supreme Court in the case of Government of Andhra Pradesh and others vs. N.Subbarayudu (2008(2) S.C.T. 425) wherein the Honble Supreme Court was pleased to laid down as under: "(8.) In fact several decisions of this Court have gone to the extent of saying that the choice of a cut off date cannot be dubbed as arbitrary even if no particular reason is given for the same in the counter affidavit filed by the Government, (unless it is shown to be totally capricious or whimsical) vide State of Bihar vs. Ramjee Prasad 1990(3) SCC 368 , Union of Indian & Anr. vs. Sudhir Kumar Jaiswal 1994(4) SCC 212 (vide para 5), Ramrao & Ors. vs. All India Backward Class Bank Employees Welfare Association & Ors. 2004 (1) SCT 775: 2004(2) SCC 76 (vide para 31), University Grants Commission vs. Sadhana Chaudhary & Ors. 1996(10) SCC 536 , etc. It follows, therefore, that even if no reason has been given in the counter affidavit of the Government or the executive authority as to why a particular cut off date has been chosen, the Court must still not declare that date to be arbitrary and violative of Article 14 unless the said cut off date leads to some blatantly capricious or outrageous result. As has been held by this Court in Divisional Manager, Aravali Golf Club & Anr. As has been held by this Court in Divisional Manager, Aravali Golf Club & Anr. vs. Chander Hass & Anr. 2008(3) 3 JT 221 and in Government of Andhra Pradesh & Ors. vs. Smt. P. Laxmi Devi 2008(2) 8 JT 639 the Court must maintain judicial restraint in matters relating to the legislative or executive domain." 13. By placing reliance on the judgment referred to above, the leaned Addl. Govt. Pleader contended that fixation of cut-off date cannot be said to be arbitrary, and it is not open to the Courts to interfere with matters relating to legislature or executive domain. 14. On consideration, I find that this writ petition deserves to be allowed. The pleaded case of the petitioner is not, that the cut-off date is arbitrary, but that he is fully eligible and covered under G.O.Ms. G.O.Ms.No.461 Finance (Pension) dated 31.07.1996 and G.O.Ms.No.488 Finance (Pension dated 12.08.1996, as the petitioner should be deemed to have retired on 01.07.1996. 15. Even otherwise, it is not a case of the petitioner for grant of pension, but a refixation of pension which was in force and therefore, there is no question of providing any cut-off date in view of the law laid down by the Honble Supreme Court in the case of Subrata Sen vs Union of India (2001(4) S.C.T. 424) wherein the Honble Supreme Court was pleased to laid down as under: "(16.) In our view, the ratio of the aforesaid judgment is not applicable in the present case. In the said case, Indian Oxygen Ltd. had set up a non-contributory superannuation fund known as the Indian Oxygen Ltd. Executive Staff Pension Fund. As per the Rules, an employee was entitled to receive an annuity under a policy purchased by the trustee of the Fund from the Life Insurance Corporation of India. Petitioners in that case contended that the scheme of such non-contributory approved superannuation fund should be modified so as to provide for disbursement of pension by the fund themselves or in the alternative by a statutory body to be newly constituted under a new scheme. Petitioners in that case contended that the scheme of such non-contributory approved superannuation fund should be modified so as to provide for disbursement of pension by the fund themselves or in the alternative by a statutory body to be newly constituted under a new scheme. Further, the Fund was constituted for the purpose of providing an annuity to the beneficiaries and the trustees were required to accumulate the contribution in respect of each beneficiary and purchase an annuity from the Life Insurance Corporation of India at the tim of retirement or death of each employee or on his becoming incapacitated prior to retirement as per Rule 89(2) of the Income Tax Rules, 1962. Therefore, when an employee retired, all accumulated contribution in respect of employee concerned made by the employer to the pension fund of the trust was crystallized for the benefit of employee. In that set of circumstances, the Court observed that the right of the employee to receive the annuity and quantum of his annuity gets crystallized at the time of purchase of annuity under the then existing scheme of Life Insurance Corporation of India. The Court also observed that the contention was based on misunderstanding of the nature of the annuity which is purchased in the interest of each employee as and when he retires. The position in the present case is altogether different. Right to get pension is obviously different from getting annuity on the basis of accumulated contribution. The rules for grant of pension provide that an employee mentioned in specified category shall automatically be member of pension fund and is entitled to get pension on the date of his retirement. Amount of pension is to be determined as per the Rules. That Rule is modified and the petitioners seek relief on the basis of the amended rule on the ground that there cannot be any discrimination between the employees who retired prior to or after an particular date, as held in Nakaras case which is followed by this Court in various decisions including V. Kasturi (Supra). Further, there is no question of pensions (retired employees) dividing the pension fund and/or payment of pension to be made only from the pension fund. The liability to pay pension arises because of provision made in the rules. In this view of the matter, the decision in Sasadhar Chakravarty (Supra) would be no bearing. Further, there is no question of pensions (retired employees) dividing the pension fund and/or payment of pension to be made only from the pension fund. The liability to pay pension arises because of provision made in the rules. In this view of the matter, the decision in Sasadhar Chakravarty (Supra) would be no bearing. (17.) Further, in All India Reserve Bank Retired Officers Association vs. Union of India [1992 Supp. (1) SCC 664], Ahmadi, J., (as he then was) speaking for the Court in the aforesaid decision highlighted the observations in Nakaras case found at p.333 para 46 to the following effect :- "...the pension will have to be recomputed in the light of the formula enacted in the liberalised pension scheme and effective from the date the revised scheme comes into force. And beware that it is not a new scheme, it is only a revision of existing scheme. It is not a new retiral benefit. It is an upward revision of an existing benefit. If it was a wholly new concept, a new retiral benefit, one could have appreciated an argument that those who had already retired could not expect it." The Court further observed:- "...It must be realised that in the case of an employee governed by the CPF (Contributory Provident Fund) scheme his relations with the employer come to an end on his retirement and receipt of the CPF amount but in the case of an employee governed under the pension scheme his relations with the employer merely undergo a change but do not snap altogether. That is the reason why this Court in Nakara case drew a distinction between liberalisation of an existing benefit and introduction of a totally new scheme. In the case of pensioners it is necessary to revise the pension periodically as the continuous fall in the rupee value and the rise in prices of essential commodities necessitates an adjustment of the pension amount but that is not the case of employees governed under the CPF scheme, since they had received the lump sum payment which they were at liberty to invest in a manner that would yield optimum return which would take care of the inflationary trends. This distinction between those belonging to the pension scheme and those belonging to the CPF scheme has been rightly emphasised by this Court in Krishena case." (18.) Same is the position in the present case. As observed in the aforesaid case, in case of an employee governed under the Pension Scheme, relations with the employer merely undergo a change, but are not snapped altogether. There is no new scheme of payment pension, but it is only a revision of the existing pension scheme. Under the new Pension Scheme, pension is required to be paid on the basis of 40 per cent of the average of the last 10 months salary including average dearness allowance drawn by the officer over the last 10 months of his service instead of earlier 40 per cent of the average annual basic salary for the last five years of service immediately preceding the date of retirement." 16. The case of the petitioner therefore, is not only covered by the decision of the Full Bench of the Central Administrative Tribunal, but also covered by the judgment of the Honble Supreme Court in the case of Subrata Sen vs Union of India (supra). 17. Consequently, this writ petition is allowed. The impugned order declining the request of the petitioner is quashed, and writ in the nature of mandamus is issued, directing the respondents to refix the pension of the petitioner in terms of G.O.Ms.No.461 Finance (Pension) dated 31.07.1996 and G.O.Ms.No.488 Finance (Pension dated 12.08.1996. No costs.