Union of India (Uoi) and anr. Vs. Ex-subedar Sukhan Lal - Court Judgment

SooperKanoon Citationsooperkanoon.com/674254
SubjectService
CourtSupreme Court of India
Decided OnSep-27-1996
Case NumberCivil Appeal No. 12600 of 1996
Judge S.C. Agrawal and; G.T. Nanavati, JJ.
Reported in(2001)10SCC478
AppellantUnion of India (Uoi) and anr.
RespondentEx-subedar Sukhan Lal
Excerpt:
- [ s.c. agrawal and; g.t. nanavati, jj.] - service law — retiral benefits — pensionary benefits for personnel of territorial army introduced w.e.f. 11-6-1985 — claim of pension arrears from date of retirement which was prior to 11-6-1985 -- by order dated 11-6-1985 the government of india introduced pensionary benefits for personnel of the territorial army. at the time when he retired from the territorial army there was no provision regarding pension for personnel of the territorial army. pension will be payable with effect from this date to the eligible ta personnel who have already retired and no arrears for the period prior to the date of issue of this letter will be admissible. the said writ petition of the respondent has been allowed by the high court by judgment dated 30-3-1993. it has been held that the respondent is entitled to get the benefit of pension from the date of his retirement. the pensionary benefit was granted for the first time to personnel of the territorial army by order dated 11-6-1985. since the said benefit was in the nature of a new retiral benefit, it could only be available from the date of grant of the benefit under order dated 11-6-1985. if the date is wholly removed, revised pension will have to be paid from the actual date of retirement of each pensioner. the state cannot be burdened with arrears commencing from the date of retirement of each pensioner.” 8. for the reasons aforementioned, the appeal is allowed, the impugned judgment of the high court dated 30-3-1993 is set aside and the writ petition filed by the respondent is dismissed.s.c. agrawal and; g.t. nanavati, jj.1. special leave granted.2. by order dated 11-6-1985 the government of india introduced pensionary benefits for personnel of the territorial army. the question that falls for consideration in this appeal is whether in cases where the personnel had retired prior to 11-6-1985 the said benefit is to be granted with effect from the date of the said order, i.e., from 11-6-1985, or it has to be extended with effect from the date of retirement.3. the respondent was enrolled in the rajput regiment of the indian army on 3-5-1938. he was discharged after serving in the army for 7 years and 348 days. thereafter, he joined the territorial army on 19-7-1950 and he retired therefrom as subedar in 1972. he rendered about 22 years' service in the territorial army. at the time when he retired from the territorial army there was no provision regarding pension for personnel of the territorial army. the matter regarding grant of pension to personnel of the territorial army had been engaging the attention of the authorities since 1979 and a recommendation for grant of pension was made in the report of the territorial army committee in 1982 which was accepted by the government and thereafter the order dated 11-6-1985 was issued whereby service pension was granted to all territorial army officers and jcos/ors (other than civil government servants and civil pensioners) who have a minimum qualifying aggregate embodied service of 20 years in the case of officers and 15 years in the case of jcos/ors. in the said order it is expressly stated:“these orders will take effect from the date of issue of this letter. pension will be payable with effect from this date to the eligible ta personnel who have already retired and no arrears for the period prior to the date of issue of this letter will be admissible.” (para 6)4. the respondent has been given pension with effect from 11-6-1985, i.e., from the date of the issue of the letter. he however, claims pension with effect from the date of his retirement in 1972. since the said claim of the respondent was not acceded to by the authorities, he filed the writ petition in the delhi high court which has given rise to this appeal. the said writ petition of the respondent has been allowed by the high court by judgment dated 30-3-1993. it has been held that the respondent is entitled to get the benefit of pension from the date of his retirement. the high court has placed reliance on an earlier judgment of the high court in col. b.n. khanna (retd.) v. union of india1 wherein it has been held that pension was payable in pursuance of the order dated 11-6-1985 with effect from the date of retirement and reliance has been placed on the decision of this court in d.s. nakara v. union of india2.5. we have perused the said judgment of the high court in col. b.n. khanna (retd.)1. we are unable to uphold the view taken in the said decision. the pensionary benefit was granted for the first time to personnel of the territorial army by order dated 11-6-1985. since the said benefit was in the nature of a new retiral benefit, it could only be available from the date of grant of the benefit under order dated 11-6-1985. the high court was in error in holding that denial of the said benefit to personnel who had retired prior to 11-6-1985 with effect from the date of retirement is violative of the provisions of article 14 of the constitution. in d.s. nakara2 it has been pointed out that the benefit given in that case was not a new retiral benefit but was an upward revision of the existing benefit. the court has observed (at scc p. 333, para 46) that “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”. in d.s. nakara2 the court has further observed: (scc p. 335, para 50)“date is merely to avoid payment of arrears which may impose a heavy burden. if the date is wholly removed, revised pension will have to be paid from the actual date of retirement of each pensioner. that is impermissible. the state cannot be burdened with arrears commencing from the date of retirement of each pensioner.” (scr pp. 198, 199)6. here we find that in para 6 of the order dated 11-6-1985 it is expressly stated that the pension would be payable from the date of the order to the persons who have already retired and that no arrears for the period prior to the date of issue would be admissible. having regard to the express language contained in para 6 of the order, there was no basis for the high court to hold that pension would be payable to the respondent from the date of his retirement.7. the learned counsel for the respondent has submitted that no appeal has been filed by the union of india against the judgment in col. b.n. khanna (retd.)1 and the said officer is availing the benefit of pension with effect from the date of his retirement and that there are some other cases also in which the benefit of pension is being given to personnel of the territorial army with effect from the date of retirement. the mere fact that in some cases the decision of the high court has not been challenged and has become final does not mean that there has been invidious discrimination and that the same benefit which is being enjoyed by these persons should also be extended to the respondent.8. for the reasons aforementioned, the appeal is allowed, the impugned judgment of the high court dated 30-3-1993 is set aside and the writ petition filed by the respondent is dismissed. no order as to costs.
Judgment:

S.C. Agrawal and; G.T. Nanavati, JJ.

1. Special leave granted.

2. By order dated 11-6-1985 the Government of India introduced pensionary benefits for personnel of the Territorial Army. The question that falls for consideration in this appeal is whether in cases where the personnel had retired prior to 11-6-1985 the said benefit is to be granted with effect from the date of the said order, i.e., from 11-6-1985, or it has to be extended with effect from the date of retirement.

3. The respondent was enrolled in the Rajput Regiment of the Indian Army on 3-5-1938. He was discharged after serving in the army for 7 years and 348 days. Thereafter, he joined the Territorial Army on 19-7-1950 and he retired therefrom as Subedar in 1972. He rendered about 22 years' service in the Territorial Army. At the time when he retired from the Territorial Army there was no provision regarding pension for personnel of the Territorial Army. The matter regarding grant of pension to personnel of the Territorial Army had been engaging the attention of the authorities since 1979 and a recommendation for grant of pension was made in the report of the Territorial Army Committee in 1982 which was accepted by the Government and thereafter the order dated 11-6-1985 was issued whereby service pension was granted to all Territorial Army Officers and JCOs/ORs (other than civil government servants and civil pensioners) who have a minimum qualifying aggregate embodied service of 20 years in the case of officers and 15 years in the case of JCOs/ORs. In the said order it is expressly stated:

“These orders will take effect from the date of issue of this letter. Pension will be payable with effect from this date to the eligible TA personnel who have already retired and no arrears for the period prior to the date of issue of this letter will be admissible.” (para 6)

4. The respondent has been given pension with effect from 11-6-1985, i.e., from the date of the issue of the letter. He however, claims pension with effect from the date of his retirement in 1972. Since the said claim of the respondent was not acceded to by the authorities, he filed the writ petition in the Delhi High Court which has given rise to this appeal. The said writ petition of the respondent has been allowed by the High Court by judgment dated 30-3-1993. It has been held that the respondent is entitled to get the benefit of pension from the date of his retirement. The High Court has placed reliance on an earlier judgment of the High Court in Col. B.N. Khanna (Retd.) v. Union of India1 wherein it has been held that pension was payable in pursuance of the order dated 11-6-1985 with effect from the date of retirement and reliance has been placed on the decision of this Court in D.S. Nakara v. Union of India2.

5. We have perused the said judgment of the High Court in Col. B.N. Khanna (Retd.)1. We are unable to uphold the view taken in the said decision. The pensionary benefit was granted for the first time to personnel of the Territorial Army by order dated 11-6-1985. Since the said benefit was in the nature of a new retiral benefit, it could only be available from the date of grant of the benefit under order dated 11-6-1985. The High Court was in error in holding that denial of the said benefit to personnel who had retired prior to 11-6-1985 with effect from the date of retirement is violative of the provisions of Article 14 of the Constitution. In D.S. Nakara2 it has been pointed out that the benefit given in that case was not a new retiral benefit but was an upward revision of the existing benefit. The Court has observed (at SCC p. 333, para 46) that “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”. In D.S. Nakara2 the Court has further observed: (SCC p. 335, para 50)

“Date is merely to avoid payment of arrears which may impose a heavy burden. If the date is wholly removed, revised pension will have to be paid from the actual date of retirement of each pensioner. That is impermissible. The State cannot be burdened with arrears commencing from the date of retirement of each pensioner.” (SCR pp. 198, 199)

6. Here we find that in para 6 of the order dated 11-6-1985 it is expressly stated that the pension would be payable from the date of the order to the persons who have already retired and that no arrears for the period prior to the date of issue would be admissible. Having regard to the express language contained in para 6 of the order, there was no basis for the High Court to hold that pension would be payable to the respondent from the date of his retirement.

7. The learned counsel for the respondent has submitted that no appeal has been filed by the Union of India against the judgment in Col. B.N. Khanna (Retd.)1 and the said officer is availing the benefit of pension with effect from the date of his retirement and that there are some other cases also in which the benefit of pension is being given to personnel of the Territorial Army with effect from the date of retirement. The mere fact that in some cases the decision of the High Court has not been challenged and has become final does not mean that there has been invidious discrimination and that the same benefit which is being enjoyed by these persons should also be extended to the respondent.

8. For the reasons aforementioned, the appeal is allowed, the impugned judgment of the High Court dated 30-3-1993 is set aside and the writ petition filed by the respondent is dismissed. No order as to costs.