THE SECRETARY (ESTT.) RAILWAY BOARD AND ANR. ETC.versusSH. D. FRANCIS PAUL ETC.

A· THE SECRETARY (ESTT.) RAILWAY BOARD AND ANR. ETC.
                                           v.
                           SH. D. FRANCIS PAUL ETC.

                                    JULY 15, 1996

B               [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

          Railway Establishment Manual ll : Rule 2423-A (as amellded 011
    15.11.1976}-Applicability of

       Se1vicc Law-Pension-Railways-Legal Assistallts recmited    1963
c and 1964-Superannuatioll in 1989-Computatioll of pension-Addition of
                                                                            ill



  pe1iod of five yem;, ill computatioll of qualifying se1vice as provided ill Rule
  2423-A-Claim f01-Amendment of Rule Oil 15.11.1976-concession made
  ad111issible only if the recndtn1ent ntles in respect of se1vice contain a specific
  provision that se1vice or post is one 1vhich canies benefit of ntle-Denial of
D benefit of ntie to respondents on the ground that llO specific provision was
  made in the COllditions of se1vice at the time of their appointment-Held llOt
  legal-Held amendmellt does not have retrospective effect-Rule held ap-
  plicable to those calldidates only who were appointed after the date of
  an1e11d111ent introducing the proviso.
E
         CIVIL APPELLATE JURISDICTION: Special Leave Petition (C)
    No. 14890 of 1996 Etc.

          From the Judgment and Order dated 6.12.95 of the Central Ad-
F   ministrative Tribunal, Hyderabad in 0.A. No. 365 of 1994.

         R. Venugopal Reddy, A.D.N. Rao and Arvind Kr. Sharma for the
    appearing parties.

           The following Order of the Court was delivered :
G          Delay Condoned.

           The two petitioners in these cases, were recruited as legal assistants
    after having put in more than 8 years practice at the Bar. One was recruited
    on April 24, 1963 and the other on .I uly 3, 1964. After putting in qualifying
H   service of 25 years, they retired from service on June 13, 1989 and March
                                         578
              SECY. (ESTf.) RL Y. BD. v. D. FRANCIS PAUL                579

31, 1992 respectively. They relied upon Rule 2423-A of the Railway Estab-      A
lishment Mannual II claiming addition of 5 years qualifying service for
computation of their pension. The Tribunal in the impugned orders dated
6.12.l 995 allowed the applications and directed computation thereof. The
same are assailed in their applications.
                                                                               B
        Rule 2423-A reads thus:

        "2423-A (C.S.R. 404-B): An Officer appointed to a service or post
        on or after !st April, 1968 may add to his service qualifying for
        superannuation pension (but not for any other class of pension)
        the actual period not exceeding one-fourth the length of his service   c
        or the actual period by which his age at the time of recruitment
        exceeds t\vent y-five years or a period of five years, whichever is
        the least, if the service or post is one :

        (a) for which post-graduate research or specialist qualification, or
        experience in scientific, technological or professional fields, is     D
        essential and

        (b) to which candidates of more than twenty five years of age are
        normally recruited.

        Provided that this concession shall not be admissible to any such      E
        officer unless his actual qualifying service at the. time he quits
        Government Service is not less than ten years.

        Provided further that any such officer who is recruited at the age
        of thirty-five years or more may, within a period of three months
                                                                               F
        from the date of his appointment, elect to forego his rights to
        pension where under he shall be eligible to subscribe to the State
        Railway Provident Found as a non-pensionable employee."

        The amended rule reads thus :
                                                                               G
        ''The above Rule was amended as can be seen from the Railway
        Ministry's letter No. F (E) IIl/76 PNI 12 dated 15.11.76, whereby
        an additional proviso was added to the rule as Under :

        Provided further that this concession shall be admissible only if
        the recruitment rules in respect of the said service/post contain a H
    580                    SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R.

A            specific provision that the service or post is one which carries the
             benefit of this rule.

             (2) A railway servant who is recruited at the age of thirty-five years
             or more, may within a period of three months from the date of his
             appointment, elect to forgo his right to pension, whereupon he
B            shall be eligible to subscribe to the State Railway provident Fund
             as a non-pensionable emplbyee.

             (3) The option referred to in sub-rule (2) once exercised, shall be
             final.   11
                       ·




C          Relying upon this proviso by later amendment, it is contended that
    since no specific pro,;sion was made in the conditions of service at the time
    of appointment, the respondents are not entitled to the benefit of the rule.
    It is not in dispute that the rule came to be amended in November 15, 1976
    long after their appointment. Under these circumstances, the amendment
D   would be prospective. It is not in dispute that this amendment came to be
    made pursuant to recommendation made by the 3rd Pay Commission and
    on acceptance thereof the rule came to be amended. Under these cir-
    cumstances, the amendment cannot have retrospective effect in respect of
    the persons already in service but would be prospective; it would be
    applicable only to those candidates appointed after thG date of the amend-
E   ment introducing the proviso.

          The special leave petitions are accordingly dismissed.

    T.N.A.                                                    Petitions dismissed.