THE STATE OF WEST BENGALversusMR. MONOTOSH ROY AND ANR.

                     THE STATE OF WEST BENGAL                                    A
                                      v.
                     MR. MONOTOSH ROY AND ANJ\

                           DECEMBER 9, 1998

           [S. SAGHIR AHMAD AND M. SRINIVASAN, JJ.]
                                                                                 B~

      Service law:

       The All India Services (Death-cum-Retirement Benefits) Rules, 1958-
 Pension--Chief Metropolitan Magistrate-Retired prior to 1986-Pension            C
fixed as per rules-Subsequent. amendment of rules by a notification dated
 May 22, 1987-Pension of persons retiring after 1.1.86 revised-Office
Memorandum dated 16.4.87-Pension of persons retiring prior lo 1.1.86
rationalised-Writ petition for extension of the benefits of amendmelJ/ to
persons retired prior to 1.1.86-Dismissed by Single Judge-Division Bench
 of the High Court holding that he was entitled to revised pension as granted    D
 to persons retiring after 1.1.86.-0n appeal, held, he does not come within
 the purview of the amended rules-Hence not entitled to revision of pension
at par with post 1.1.86 p~nsioners.

       The first respondent retired as Chief Metropolitan Magistrate in          E
February 1981. His pension was fixed in accordance with All India Service
Rules. The All India Services (Death-cum-Retirement Benefits ) Rules,
1958 were amended by a notification dated May 22, 1987 whereby the pension
of persons retiring after 1.1.86 was to be calculated at 50% of the basic pay
in the restructured supertime scale with a ceiling. In case of persons who
retired prior to 1.1.86, the Govt. rationalised the pension structure by an      F
office Memorandum dated 16.4.87. In view of the said memorandum the first
respondent's pension was refixed. However, the first respondent filed a writ
petition in the High Court praying that the benefits which were conferred
on persons who retired after 1.1.86 should be made available to the persons
who retired prior to that date. The said writ petition was dismissed by Single   G
Judge. On appeal, the Division Bench of the High Court held that the first
respondent's pension be refixed by including in the basic pay dearness
allowance and other allowances which were allowed to post 1.1.86 pensioners.
Aggrieved, the State has filed the present appeal.

      Allowing the appeal, this Court
                                     435                                         H
    436                       SUPREME COURT REPORTS (1998] SUPP. 3 S.C.R.

A        HELD: 1. The first respondent is not entitled for refixing his pension
    at par with the persons who retired after 1.1.86. The Division Bench of the
    High Court erred in granting the relief to the first respondent. [441-G-H]

          2.1 The first respondent does not come within the purview of the All
    India Services (Death-cum-Retirement Benefits) Rules, 1958, as amended by
B   the notification dated 22nd May 1987. The word " emoluments" has been
    defined thereby to mean the pay that a member of the service was receiving
    before his retirement or death, as the case may be. The proviso to the
    definition clause is to the effect that in the case ofa member of the service
    retiring from service within ten months of the date of coming over to the
C   revised scales of pay, the emoluments in respect of any period prior to
    coming over to the revised scales of pay shall include the pay other than
    special pay in the pre-revised scale, dearness allowance, additional dearness
    allowance and ad hoc dearness allowance appropriate to pay upto cost of
    Price Index 608 actually drawn during the relevant period and interim relief
    appropriate to pay actually drawn during the relevant period. The expression
D   " Revised scales of pay" has been defined to mean the scales of pay introduced
    with effect from lst day of January, 1986. Thus the definition clauses
    themselves exclude the first respondent who retired from service in February,
    1981 long before the revision of scales of pay came into force.
                                                                 [439-E-H; 440-A]
E         2.2. Rule 18 provides for the amount of gratuity and pension, in the
    case of a member of the service who retires from service in accordance with
    the rules. The note at the end of the rule reads that a member of the service
    before lst day of January, 1986 shall be granted such additional relief in
    pension, as may be sanctioned by the Central Government. Hence the
F   provisions of Rule 18 fixing the amount of gratuity or pension will not apply
    to the first respondent. [440-A-B)

         State of U.P. v. Jogendra Singh and Anr., (1998) 1 SCC 449 and V.
    Kasturi v. Managing Director State Bank of India Bombay and Anr., JT
    [1998) 7 SC 147, relied on.
G
          D.S. Nakara v. Union of India, (1983) l SCC 305, held inapplicable.

          All India Reserve Bank Retired Officers Association and Ors. v. Union
    of India and Anr., [1992 [ Supp. l SCC 664; Union of India v. P.N. Menon
    and Ors., [1994[ 4 SCC 68 and State of Rajasthan v. Amrit Lal Gandhi and
H   Ors., JT [1997[ l SC 421, referred to.
                 STA TE v. MONOTOSH ROY [SRINIVASAN, J.)                  437
      3. The Division Bench of the High Court has usurped the functions of        A
the Central Government and thus travelled beyond its jurisdiction. The
Division Bench of the High Court has recognised the position that the writ
petitioner cannot claim benefit of higher pay-scale having retired from
service long before the introduction of such pay scales. (440-G; 440-E]

        CIVIL APPELL.A TE JURISDICTION : Civil Appeal No. 5406 of                 B
1997.

      From the Judgment and Order dated 10.6.96. of the Calcutta High Court
in O.A.T.F.M.A.T. No. 2408 of I992

        Tapas Ray and S.K. Nandy for the Appellant.                               c
     Ashok Srivastava, A.O. Sikri and Abbay Prakash Sahay for the
Respondents.

        The Judgment of the Court was delivered by
                                                                                  D
      SRINIVASAN, J. The first respondent in this appeal was a member of
the West Bengal Higher Judicial Service and retired as Chief Metropolitan
Magistrate, Calcutta in February, 1981. At that time, he was drawing pay in
the super time scale of Rs. 2500-2750 plus admissible allowances. His pension
was fixed in accordance with the rules at the maximum rate of Rs. 1225 per        E
month. His retirement gratuity was settled at Rs. 30000.

      2. According to Rule 91 of the West Bengal Service (Death-cum-
Retirement) Benefit Rules, 197I, the rules applicable to members of All India
Services shall apply mutatis mutandis to members of West Bengal Higher
Judicial Service. There is no dispute that the first respondents's pension was    F
fixed in accordance therewith.

      3. The Indian Administrative Service (Pay) Rules, 1954 were amended
on the basis of the recommendation of the Fourth Central Pay Commission
as per Government Order dated 13th March, 1987. Thereby the previous
single super time selection grade applicable to the central government officers   G
in the ranks of Joint Secretaries at Rs. 2500-2750 was restructured into three
categories:

          A. Rs. 5900-200-6700,

          B. Rs. 7300-100-7600,                                                   H
      438                         SUPREME COURT REPORTS [1998) SUPP. 3 S.C.R.

 A            C. Rs. 8000 (fixed) w.e.f. 1.1.1986.

      Consequential amendment was made in All India Services (Death-cum-
      Retirement Benefits) Rules, 1958 by a notification dated May 22, 1987 whereby
      the pension of persons retiring after 1.1.86 was to be calculated at 50% of the
      basic pay in the restructured supertime scale with a ceiling on pension at Rs.
 B    4500 per month for all categories of pensioners. The benefit of the said
      amendment was•available only to persons retiring after 1.1.86. In so far as
      persons who retired prior to 1.1.86 are concerned, the Government oi!ndia
      rationalised the pension structure by O~fice Memorandum No. 2/1/87-PIC-1
      dated 16.4.87 to implement the Government decision on the recommendation
 C    of the Fourth Central Pay Commission. The above memorandum classified the
      retiree before 1.1.86 into A, B and C categories if). pari materia with the Tables
      I, II and III of the Fourth Central Pay Commission report and provided
      dearness reliefs for them at the rate of 95%, 80% and 70.% of their existing
      pensions respectively. In accordance with the said memorandum the first
      respondent's pension was refixed at Rs. 2355 per month.
 D
             4. However, the first respondent filed a writ petition in the High Court
      of Calcutta under Article 226 of the Constitution of India praying for issue
      of a mandamus to the Union of India and the State Government to withdraw
      the aforesaid notification dated 16.4.87, settle and pay the pension to the
 E    petitioner at the rate of the Rs. 3800 per month at par with the serving officers
      of his rank in the Indian Administrative Service after deducting the amount
      drawn already and to pay all the arrears thereof forthwith and for a declaration
      that the said notification dated 16.4.87 was illegal, arbitrary, unfair and
      unconstitutional and as such liable to be struck down and quashed. In
      addition to the above prayers, the petitioner made several other prayers but
 F    it is not necessary for us to refer to them here. Suffice it to point out that
      the basis of the claim of the petitioner is that the benefits which were
      conferred on persons who retired after 1.1.1986 should be made available to
      persons who retired prior to that date.

 G          5. The writ petition was dismissed by a Single Judge of the High Court
      who held that the principle laid down by this Court in D.S. Nakara's case
      [1983] I sec 305 would not apply and the reliance placed by the writ petitioner
      on the said ruling was mis-conceived. The Court pointed out that the difference
      between the pension payable to persons who retired after 1.1.86 and the
      pension payable to the persons who retired prior to that date was on account
  H   of restructuring the scales of pay and the writ petitioner having retired long
-4
                      STA TE v. MONOTOSH ROY [SRINIVASAN, J.]                     439
      prior to the said date when the old scale of pay was prevailing was not             A
      entitled to claim the benefit. As against the judgment of the Single Judge, an
      appeal was filed which was disposed of by a Division Bench. The Bench
      opined that for the purpose of determining' the pensionary benefit to the writ
      petitioner, the bi:sic pay should also include the dearness relief or interim
      relief which was granted to such persons in the same manner as it was made          B
      applicable in respect of persons who retired after 1.1.86. The Bench also held
      that the perquisites which were allowed to 'post - 1.1.86' pensioners should
...   also be added to the basic pay of the writ petitioner and thereafter 50% of
      that amount should be given by way of pension to him w.e.f. 1.1.86. The
      Respondents therein were directed to refix the pension of the writ petitioner       C
      in terms of the said order.

           6. Aggrieved by the said judgment and order, the State of West Bengal
      has preferred this appeal.

           · 7. The contention of the appellant is that the impugned j.udgment of the     D
      Division Bench of the High Court is vitiated by a misunderstanding of the
      rule in "Nakara" and the overlooking of the relevant rules applicable to the
      writ petitioner. Before adverting to the rule in Nakara, we would like to point
      out that the petitioner does not come within the purview of the relevant rules,
      as amended by the Notification dated 22nd May, 1987.                                E

            8. In exercise of the powers conferred by sub-section( I) of the Section
      3 of the All India Services Act, 1951 the Central Government issued a
      Notification on 22nd May, 1987 amending the All India Services (Death-cum-
      Retirement) benefits Rules, 1958. The word "emoluments" has been defined            F
      thereby to mean the pay that a member of the service was receiving before
      his retirement or death, as the case may be. The proviso to the definition
      clause is to the effect that in the case of a member of the service retiring frnm
      service within ten months of the date of coming over to the revised scales
      of pay, the emoluments in respect of any period prior to coming over to the
      revised scales of pay shall include the pay other than special pay in the pre-      G
      revised scale, dearness allowance, additional dearness allowance and ad hoc
      dearness allowance appropriatP. to pay upto Cost of Price Index 608 actually
      drawn during the.relevant period and interim relief appropriate to pay actually
      drawn during the relevant period. The expression "Revised scales of pay" has
      been defined to mean the scales of pay introduced with effect from 1st day          H
    440                         SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A of January, 1986. Thus, the definition clauses themselves exclude the petitioner
    who retired from service in February, 1981 long before the revision of scales
    of pay came into force. Rule 18 provides for the amount of gratuity and
    pension, in the case of a member of the service who retires from service in
    accordance with the rules. The note at the end of the rule reads that a member
B   of the service, before !st day of Januray, 1986 shall be granted such additional
    relief in pension, as may be sanctioned by the Central Government. Hence,
    the provisions of Rule 18 fixing the amount of gratuity or pension will not
    apply to the writ petitioner.

          9. Jn the Writ Petition there is no challenge whatever to the provisions
C of the rules, as amended by the Notification dated 22nd may, 1987; nor has
    the writ petitioner chosen to challenge the Notification as such. On the other
    hand the prayers in the Writ Petition are directed only against the Memorandum
    dated 16th April, 1987, as stated already. Consequently, the first respondent
    is not entitled to any relief whatever in the Writ Petition and it deserves to
D   be dismissed. This aspect of the matter has been completely ignored by the
    Division Bench of the High Court. This appeal has to be allowed on that short
    ground.

           10. We have already referred to the fact that the new provisions for
E   payment of pension introduced by the amendment of 1987 were only
    consequential to the restructuring of the pay-scales of the members of the
    service. The Division Bench of the High Court has recognised the position
    that the writ petitioner cannot claim benefit of higher pay-scale having retired
    from service long before the introduction of such pay-scales. The Division
    Bench also pointed it out that the petitioner cannot claim a pension higher
F   than the pay drawn by him. The Division Bench observed :

            "We agree with the view of the learned Trail Judge that the petitioner
            cannot claim a pension higher than the pay drawn by him; but at the
            same time, the value of rupee 20 years ago and the value of a rupee
G           now cannot be treated to be the same by any logic. The appellant is
            not entitled to get the benefit of the higher pay scale, but the appellant
            is entitled to get the benefit of calculation of pension by merging the
            dearness allowance and other allowances along with the basic pay
            which has been introduced subsequently."

H         It is quite obvious that the Division Bench has usurped the functions · ·
                 ST ATE v. MONOTOSH ROY [SRINIVASAN, J.]                     441
of the Central Government and thus travelled beyond its jurisdiction.                A
       11. Much reHance is placed on the decision in D. S. Nakara v. Union
of India, [1983] l SCC 305. That was a case in which the Central Government
liberalised the formula for computation of pension but made it applicable to
Government servants who were in service on March 31, 1979 and retired from
service on or after the specified date. This Court struck down the said              B
classification and held that the liberalised formula was applicable to all the
pensioners whether they retired before or after the specified date. That principle
cannot apply in the present -.:ase where the pension benefits have been fixed
on the basis of the revised pay structure to those members who are in service
on l.l.1986.
                                                                                     c
      12. In all India Reserve Bank Retired Officers Association and Ors. v.
Union of India & Anr., [1992] Supp I SCC 664 a Bench of this Court
distinguished the judgment in Nakara and pointed out that it is for the
Government to fix a cut-off date, in the case of introducing a new pension
scheme. The Court negatived the claim of the persons who had retired prior           D
to the cut-off date and had collected their retrial benefits from the employer.
A similar view was taken in Union of India v. P.N. Menon and Ors., [1994]
4 SCC 68. In State of Rajasthan v. Amrit Lal Gandhi & Ors., JT (1997) I SC
421 the ruling in P.N. Menon's case (supra) was followed and it was reiterated
that in matters of revising the pensionary benefits and even in respect of           E
revision of scales of pay a cut-off date on some rational or reasonable basis
has to be fixed for extending the benefits.

       13. In State of U.P. v. Jogendra Singh & Anr., [1998] I SCC 449 a
Division Bench of this Court held that liberalised provisions introduced after
employee's retirement with regard to retiral benefits cannot be availed of by        F
such employee. In that case the employee retired voluntarily on 12.4.1976.
Later on the statutory rules were amended by Notification dated 18.11.1976
granting benefit of additional qualifying service in case of voluntary retirement.
The Court held that the employee was not entitled to get the benefit of the
liberalised provision which came into existence after his retirement. A similar      G
ruling was rendered in V. Kasturi v. Managing Director, State Bank of India
Bombay & Anr., JT (I 998) 7 SC 4 7.

       14. The present case will be governed squarely by the last two rulings
referred to above. We have no doubt whatever that the first respondent is
not entitled to the relief prayed for by him in the Writ Petition. The Division      H
    442                       SUPREME.COURT REPORTS [1998] SUPP. 3 S.C.R.

A   Bench of the High Court was, therefore, in error in granting a part of thi:
    prayer of the first respondent. Hence, this appeal is allowed. The judgment
    of the Division Bench is set aside and the Judgment of the Single Judge of
    the Calcutta High Court dated 10.7.1992 dismissing the Writ Petition filed by
    the first respondent herein is restored. There will be no order as to costs.

B S.V.K.                                                        Appeal allowed.