S. BANERJEEversusUNION OF INDIA AND ORS.

                             S. BANERJEE
A
                                  v.
                       UNION OF INDIA AND ORS.

                              OCTOBER 24, 1989

B       [MURARI MOHON DUTI, S. RANGANATHAN AND
                 S. RATNAVEL PANDIAN, JJ.]

          Central Civil Services (Pension) Rules, 1972: Rule 5(2) and
    48A-Supreme Court employee-Permitted voluntary retirement with
    effect from January 1, 1986-Whether entitled to claim benefit of para
    17.J of Report of Fourth Central Pay Commission.
c
          Paragraph 17.3 of Chapter 17, Part II of the Report of the Fourth
    Central Pay Commission entitled Government employees retiring
    during the period January 1, 1986 to September 30, 1986 to considera-
    tion of the entire dearness allowance drawn by them upto December 31,
D   1985 as pay· for pensionary benefits. Rule 5(2) of the Central Civil
    Services (Pension) Rules, 1972 permits the day on which a Government
    servant retires from service to be treated as his last working day. The
    proviso thereto, however, states that in the case of a Government
    servant who retires voluntarily under Rule 48-A the date of retirement
    shall be treated as a non-working day.
E
          The petitioner was permitted to retire voluntarily from the service
    of the Registry of the Supreme Court under the provisions of Rule 48-A
    of the Rules with effect from the forenoon of January 1, 1986 by an order
    dated December 6, 1985. His claim to the benefit of paragraph 17 .3 was
    not acceded to.
F
          In the writ petition it was contended for the respondents that as in
    view of the proviso to rule 5(2) of the Rules the petitioner was not
    entitled to the salary for the day of his retirement, he -was not entitled to
    the benefit of paragraph 17.3.

G         Allowing the writ petition,

          HELD: Uoder paragraph 17 .3 of Chapter 17, Part U of the
    Report of the Fourth Central Pay Commission the benefits recom-
                                                                                    -
    mended will be available to employees retiring during the period,
    January 1, 1986 to September 30, 1986. In the instant case, the
H   petitioner was permitted to retire voluntarily from the service of the

                                        562
                     S. BANERJEE v. U.0.1. IDUIT, J.]                563

Registry of the Supreme Court with effect from the forenoon of January
                                                                            A
1, 1986. The fact that under the proviso to rule 5(2) of the Rules, the
petitioner will not be entitled to any salary for the day on which he
actually retired has no bearing on the question as to the date of retire-
ment. The petitioner could not be said to have retired on December 31,
1985. It has tben to be said that he had retired with effect from January
1, 1986 and that is also the order of this Court dated December 6, 1985.    B
He, therefore, comes within the purview of paragraph 17 .3 of the
recommendations of the Pay Commission. [565A~E]

      The respondents to calculate and pay to the petitioner within
three months bis pension in accordance with the recommendation of the
Pay Commission as contained in paragraph 17.3. [566D]
                                                                            c
        ORIGINAL JURISDICTION: Writ Petition (Civil) No. 1155 of
1987.

        (Under Article 32 of the Constitution of India).
                                                                            D
        S.P. Malik and Mrs. Lalitha Kaushik for the Petitioner.

     Anil Dev Singh, R. Venkataramani, R.B. Mishra and Ms.
A. Subhashini for the Respondents.

        The Judgment of the Court was delivered by                          E

     DUTT, J. The petitioner was the Additional Registrar of this
Court. His normal date of retirement was March 31, 1987. He,
however, sought for voluntary retirement from the service of this
Court and on his application in that regard, the following order dated
December 6, 1985 was communicated to him by the Registrar of this F
Court:

                                 "OFFICE ORDER

                  The Hon'ble the Chief Justice of India has accepted
             the notice of Shri S. Banerjee, Offg. Additional Registrar G
             (Permanent Deputy Registrar), seeking voluntary retire-
             ment from service under the provisions of Rule 48A of the
             Central Civil Services (Pension) Rules, 1972, and has
             permitted Illm to retire voluntarily from the service of the
             Registry of the Supreme Court of India with effect from the
             forenoon of January l, 1986."                                H
    564         SUPREME COURT REPORTS                [1989] Supp. 1 S.C.R.

         It is clear from the order extracted above that the petitioner was
A   permitted to retire voluntarily from the service of the Registry of the
    Supreme Court with effect from the forenoon of January 1, 1986.

           After the retirement of the petitioner, the Fourth Central Pay
    Commission (for short 'Pay Commission') gave its report recommend-
B   ing the revision of salaries and pension of the Government employees.
    It is not disputed that the above recommendations of the Pay Commis-
    sion have been accepted by the Government and that the benefit
    thereof is also available to the employees of this Court. Paragraph 17 .3
    of Chapter 17 of Part II at page 93 of the Report of the Pay Commis-
    sion provides as follows:
c               "17 .3 In the case of employees retiring during the period
                January 1, 1986 to September 30, 1986, Government may
                consider treating· the entire dearness allowance drawn_ by
                them up to December 31, 1985 as pay for pensionary
                benefits."
D
          The petitioner claimed the benefit of the recommendation of the
    Pay Commission as contained in the said paragraph 17.3, but it was,not
    allow~d on the ground that he did not, as he was not entitled to, draw
    salary for January 1, 1986 in view of the proviso to rule 5(2) of the
    Central Civil Service (Pension) Rules, 1972, hereinafter referred to as
E   'the Rules'. Rule 5(2) reads as follows:

                "5(2). The day on which a Government servant retires or
                is retired or is discharged or is allowed to resign from
                service, as the case may be, shall be treated as his last
                working day. The date of death shall also be treated as· a
f               working day.

                      Provided that in the case of a Government servant
                who is retired pre-maturely or who retires voluntarily
                under clause (j) to (m) of Rule 56 of the Fundamental
                Rules or Rule 48 (or Rule 48-A) as the case may be, the
G               date of retirement shall be treated as a non-working day."

          ' the hearing of the writ petition, it has also been vehemently
          At
    urged on behalf of the respondents that as in view of the proviso to rule
    5(2) of the Rules, the date of retirement of the petitioner should be
    treated as a non-working day or, in other words, as the petitioner was
B   not entitled to the salary for the day of his retirement, he was not
                           S. BANERJEE v. U.0.l. [DUIT, J.J                565

      entitled to the benefit of the recommendation of the Pay c·ommission
                                                                           A
      as contained in paragraph 17.3 of the report extracted above.

            Under paragraph 17.3, the benefits recommended will be avail-
      able to employees retiring during the period, January 1, 1986 to
      September 30, 1986. So the employees retiring on January 1, 1986 will
      be entitled to the benefit uqder paragraph 17.3. The question that          B
      arises for our consideration is whether the petitioner has retired on
      January 1, 1986. We have already extracted the order of this Court
      dated December 6, 1985 whereby the petitioner was permitted to
      retire voluntarily from the service of the Registry of the Supreme
      Court with effect from the forenoon of January 1, 1986. It is true that
      in view of the proviso to rule 5(2) of the Rules, the petitioner will not   C
      be entitled to any salary for the day on which he actually retired. But,
      in our opinion, that has no bearing on the question as to the date of
      retirement. Can it be said that·the petitioner retired on December 31,
      1985? The answer must be in the negative. Indeed, Mr. Anil Dev
      Singh, learned ·counsel ap(learing on behalf of the respondents,
      frankly conceded that the petitioner could not be said to have retired      D
      on December 31, 1985. It is also not the case of the respondents that
      the petitioner had retired from the service of this Court on December
      31, 1985. Then it must be held that the petitioner had retired with
~     effect from January 1, 1986 and that is also the order of this Court
      dated December 6, 1985. It may be that the petitioner had retired with
      effect from the forenoon of January 1, 1986 as per the said order of this   E
      Court, that is to say, as soon as January 1, 1986 had commenced the
      petitioner retired. But, . nevertheless, it has to be said that the
      petitioner had retired on January 1, 1986 and not on December 31,
      1985. In the circumstances, the petitioner comes within the purview of
      paragraph 17. 3 of the recommendations of the Pay Commission.
                                                                                F
             After the conclusion of the hearing of the writ petition, an addi-
      tional affidavit purported to have been affirmed by Mr. P.L. Sakarwal,
      the Director (Justice) of the Department of Justice. In paragraph 8 pf
      the affidavit the deponent has craved leave of this Court to file this
--,   additional .ffidavit. It does not appear from the copy of the purported
      additiona1 affidavit whether it has been affirmed or not inasmuch as no G
      date of affirmation has been mentioned therein. Be that as it may, a
      photocopy of the Office Memorandum dated April 14, 1987 of the
      Ministry of Personnel, Public Grievances and Pensions, Department
      of Pt:nsions & Pensioners' Welfare has been annexed. Ii is submitted
      in the additional affidavit that the pension of Government servants
      retiring between 1.1.1986 and 30.6.1987 is to be governed in terms of H
                       .           -
    566         SUPREME COURT REPORTS                 [1989] Supp. 1 S.C.R.

A   paragraphs 10.1, 10.2 and 11 of the said Office Memorandum.
    Further, it has been submitted that the petitioner had ceased to be in
    the employment of the Supreme Court with effect from 1.1.1986
    (F .N.) and, accordingly, the said Office Memorandum is not applic-
    able to the petitioner. Paragraph 3.1 of the Office Memorandum
    provides, inter a/ia, that the revised provisions as per these orders shall
                                                                                  .
B
    apply to Government servants who retire/die in harness on or after
    1.1.1986. The said Office Memorandum will, therefore, be applicable
    to Government servants retiring on 1.1.1986. There is, therefore, no
    substance in the contention that the Office Memorandum dated April
    14, 1987 will not apply to the petitioner. Be that as it may, we have
    already held that the petitioner had retired with effect from 1.1.1986
c   and he comes within the purview of paragraph 17.3 of the recommen-
    dations of the Pay Commission.

          In the circumstances, the writ petition is allowed and the respon-
    dents are directed to calculate and pay to the petitioner within three
D   months from today his pension in accordance with the recommenda-
    tion of the Pay Commission as contained in paragraph 17.3 extracted
    above. There will, howerve, be no order as to costs.

    P.S.S.                                                   Petition allowed.