UNION OF INDIA AND ORS.versusV.D. DUBEY (DEAD) BY LRS.

                  [2009] 16 (ADDL.) S.C.R. 279

                  UNION OF INDIA AND ORS.                          A
                                v.
                 V.D. DUBEY (DEAD) BY LRS.
                 (Civil Appeal No. 523 of 2005)
                      DECEMBER 8, 2009
                                                                   B
      [J.M. PANCHAL AND K.S. RADHAKRISHNAN, JJ.]

       Service Law:

         Pension - Superannuation pension - Indian Railway         c
  Establishment Code- r.2423A, as amended, rlw r.2301 of the
  Railway Pension Rules -Qualifying service for
  superannuation pension - Benefit of added years of service
   u/r. 2423A, as amended - Held: Intended to be given to all
  those officers who retired from service after 31-3-1960 -        D
\ Persons who retired from service after 31-3-1960 form a class
  by themselves irrespective of their entry in service - Further
  classification or differentiation among them was never
  intended by r.2423-A.

         Whether r.2423-A of the Indian Railway Establishment      E
    Code as amended, which provides for adding certain
    period of service, to the qualifying service for
    superannuation pension, would be available to those
-'- who retire from service after 31st March, 1960,
    irrespective of the fact whether the recruitment rules at      F
    the time of their appointment had contained such a
    specific provision or not, is the question which arose for
    consideration in the present appeals.

       Dismissing the appeals, the Court                           G
       HELD: 1.1. Looking at the various amendments
  effected to r.2423-A of the Indian Railway Establishment
  Code, it is clear that the benefit of adding certain years
  of service under Rule 2423-A is intended to be given to
                              279                                  H
    280 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A all those officers who retire from service after 31st March,     ....
  1960 which is more clear in view of r.2301 of the Railway
  Pension Rules which says a pensionable Railway
  servant's claim to pension is regulated by Rules in force
  at the time when he resigns or discharged from the
B service. [Para 10) [285-D-E]

         1.2. Persons who retire from service after 31.3.1960
    form a class by themselves irrespective of their entry in
    service. Further classification or differentiation among .-1
    them was never intended by r.2423-A as amended from
C   time to time read with r.2301 of the Railway Pension
    Rules. R.2423-A IREC, as amended, therefore would apply
    to those categories of employees who have retired from
    service after 31.3.1960 for adding requisite number of
    years to their qualifying service, so as to claim the
D   pensionary benefits. The scope of the proviso of r.2423-
    A of REM Vol. II came up for consideration before this J
    Court in another case and this Court held that the
    amendment introducing the proviso cannot have
    retrospective effect in respect of person already in service
E   but would be prospective; it would be applicable only to
    those candidates appointed after the date of the
    amendment introducing the proviso. Therefore the
    provision which states that the concession be
    admissible only if the recruitment rule provides so, would
F   operate only prospectively. [Para 11) [285-F-H; 286-A]

        Secretary (Estt) Railway Board and Another v. D. Francis
    Paul and others (1996) 10 SCC 134, referred to.
                                                                          _,
      2. Directions are therefore issued to tne Appellants
G to calculate the pensionary benefits and disburse the
  same to the respondents-employees. [Para 12) [286-C)
                        Case Law Reference:
        (1996) 10 sec 134        referred to          Para 11
H
            UNION OF INDIA AND ORS. v. V.D. DUBEY (DEAD) 281
                              BY LRS.
~            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 523             A
        of 2005.

            From the Judgment & Order dated 14.7.2003 of the High
        Court of Judicature at Bombay in Writ Petition No. 4282 of
        2003.
                                                                            B
                                     WITH

.._c.A. Nos. 1024 & 1025 of 2005.
            Indira Jaising, ASG, Kiran Bhardwaj, S. Wasim A. Qadri,         C
        C.K. Sharma, A.K. Sharma, Saima Bakshi, R. Bastian,
        Shreekant N. Terdal for the Appellants.

            Shiv Mangal Sharma, Jayesh Gaurab, Abhishek Thakur,
        Sharmila Upadhyay, Sanjay Parikh, Palani A, AN. Singh, AR.
        Shah, Anitha Shenoy for the Respondents.                            D
    }
        '     The Judgment of the Court was delivered by

      K.S. RADHAKRISHNAN, J. 1. The question that arises
 for consideration in these cases is whether the Rule 2423-A                E
 of the Indian Railway Establishment Code as amended, which
 provides for adding certain period of service, to the qualifying
 service for superannuation pension, would be available to those
 who retire from service after 31st March, 1960, irrespective of
)he fact whether the recruitment rules at the time of their
 appointment had contained such a specific provision or not.                F

        2. The Railway Administration took up the stand that only
  if the recruitment rules conferred such a provision the benefit
  of added years of service, for superannuation pension, would
  be available. The High Court in all these cases took a                    G
  consistent view that what is relevant is the date of retirement,
-~not the date of entry in service.

            3. Rule 2423-A as it originally stood, stated that an officer
        appointed to his service or post on or after 1st April, 1960 was    H
    282   SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A eligible to add to his service qualifying for superannuation
                                                                            ~
  pension, the actual period not exceeding 1/4th of the length of
  his service or actual period by which his age at the time of
  recruitment exceeded 25 years or a period of f1ve years
  whichever is less provided the post held by him is one for which
B post graduate research or specialized qualification or
  experience in scientific technological or professional field is
  essential and to which candidate of more than 25 years of age
  are normally recruited. Rule was again amended on 15.11.1976
  adding a proviso stating that the concession shall be admissible     _..
c only if the recruitment rules in respect of a service/post contain
  such a provision. Rule was again amended stating that the
  benefit of added years of service under Rule 2423-NR-ll would
  be admissible to all those who retire from service or posts after
  31.3.1960 and who were otherwise eligible under Rule 2423-
D NR-11 which was made effective from 28th October, 1997.

       4. In Civil Appeal No. 523 of 2005, the respondent joined
  service on 4.8.1959 as Court Inspector in the Western Railway        ,,
  and he retired from service on superannuation as Deputy Chief
  Vigilance Officer from Central Railway on 31.12.1989. The
E respondent claimed the benefit of added years of service, the
  same was, however, denied to him. The reason for denial was
  that the recruitment rules did not contain such a provision.
  Further it was also stand of the Railway Administration that the
  recruitment rules of law inspector were amended only in the
F year 2000 and the provision in respect of addition of service
  was effected only then by the time the respondent had retired
  from service and hence he would not get benefit of Rule 2423-
  A/R-ll.

G      5. Aggrieved by the stand taken by the Railway
  Administration, the respondent approached the Central
  Administrative Tribunal, Bombay Bench filing O.A. No. 473/
  2002. The Tribunal allowed the application and directed the
  Railway Administration to fix the pension of the respondent
H adding to his service, the period by which the respondent at the
 UNION OF INDIA AND ORS. v. V.D. DUBEY (DEAD) 283
       BY LRS. [K.S. RADHAKRISHNAN, J.]
time of recruitment exceeded 25 years of service or a period A
of five years whichever is less for the purpose of calculating the
pension. The Railway Administration took up the matter in
appeal before the Bombay High Court. The High Court
endorsed the view taken by the Tribunal and reiterated that in
view of the provisions contained in Rule 2301 of the Indian B
Establishment Code, the pensionable Railway servants claims
to pension is regulated by Rules enforced at the time when he
resigns or is discharged from service from the Government.
The Bench also noticed that Rule 2423 as it originally stood
was found incongruous and consequently it was amended on c
4.12.1987, whereby it was decided the benefit of added years
of service under the Rule 2423-A/R-ll was made admissible to
all those who retire from service or posts after 31st March, 1960
and who are otherwise eligible under Rule 2423-A/R-11. It was,
therefore, held that the Rule as stood after modification is that D
those who retire from service or posts after 31.3.1960 would
get the benefit of adding to their service the period as may be
admissible for calculation of pension.

     6. In Civil Appeal No. 1024 of 2005, the respondent joined
Railways as Assistant Surgeon on 23.10.1942 after having E
crossed the age of 25 years. 1While in service he took ,his
master degree in general surgery. On 2.1.1959 he was
appointed as D.M.O. Class-I Medical Officer through Union
Public Service Commission and the respondent rejoined
service in Central Railway. Respondent also claimed the benefit F
of the Rules which we have referred to in the earlier part of the
judgment. The same was denied, hence, he approached the
Central Administrative Tribunal which has rejected his
application. The respondent took up the matter in appeal with
the Division Bench of the Bombay High Court and the appeal G
was allowed holding that the respondent is entitled to the benefit
of Rule 2423-A as amended and the Railway Administration
was directed to give the benefit of added years of service, for
reckoning the qualifying service for pension.
                                                                   H
         284 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


     A      7. In Civil Appeal No. 1025 of 2005, the first respondent
       joined service in the Indian Railway Medical Service on
       26.10.1958 and the second respondent in November, 1957.
       Both respondents while in service had acquired their post
       graduate qualifications. The first respondent retired from service
     B on superannuation on 1.9.1979 and the second respondent
       retired on superannuation on 11.9.1986. Since both the
       respondents retired from services after 31.3.1960 they claimed
       the benefit of Rule 2423-A by adding certain years of qualifying
       years of service for pension. Since the same was denied, they
     c approached the Tribunal but the Tribunal dismissed their
       applications. They took up the matter before the Bombay High
        Court. The Division Bench of the Bombay High Court allowed
       their appeals by placing reliance on the judgment in writ petition
        No. 594 of 2003 {against which CA No.1024/05 has been filed
        before this Court) and gave a direction to the Railway
     D Administration to give benefit to the respondents as per Rule
       2423-A of the Indian Railway Establishment Rules.
               8. Learned Additional Solicitor General submitted the Rule
         2423-A/R-ll as amended in the year 1976 provided that the
     E   benefit of added years of service can only be granted to whom
         if the recruitment Rules confers such a benefit when a person
         is 3ppointed. Learned senior counsel submitted that the
         respondents were appointed in service when the recruitment
..       rules did not provide such a provision. Learned counsel also
     F   submitted that for the first time the provisions were made in the
         year 2000 for granting benefit of added years of service vide
         letter dated 10.11.2000 and prior to that the Law Assistants
         were not entitled to such benefits. Learned counsel further
         submitted that the respondent retired in the year 1989 by which
     G   time amended provision of Rule 2423-A of Indian Railway
         Establishment Code which came into existence on 15.11.1976
         was in force and at that time recruitment Rules for the Court
         Inspector/Law Assistant did not contain the specific provision
         regarding the admissibility of addition to the qualifying service
     H   of pensionary benefits. Similar was a contention raised in
     UNION OF INDIA AND ORS. v. V.D. DUBEY (DEAD) 285
           BY LRS. [K.S. RADHAKRISHNAN, J.)
     respect of other two cases also.                                A
          9. Learned senior counsel appearing for the respondents
     on the other hand placed heavy reliance on the Rule 2301 on
     the Railway Pension Rules and submitted that pensionable
     Railway Servants Claim is regulated by the Rules in force and B
     at the time when a Railway servant resigns or is discharged
     from service. Learned senior counsel also fully endorsed the
     view expressed by the Division Bench of the Bombay High
;_
     Court for interpretation of Rule 2423-A and submitted if the
     interpretation given by the learned Additional Solicitor General C
     is accepted then the very object and purpose of the
     amendment of Rule 2423-A would be defeated.
          10. We have already referred to the relevant provisions in
    the earlier part of the judgment. Looking at the various
    amendments effected to Rule 2423-A, we are clearly of the D
   .view that the benefit of adding certain years of service under
 ~ Rule 2423-A is intended to be given to all those officers who
    retire from service after 31st March, 1960 which is more clear
    when we look at Rule 2301 of the Railway Pension Rules which
    says a pensionable Railway servant's claim to pension is E
    regulated by Rules in force at the time when he resigns or
    discharged from the service.

         11. Persons who retire from service after 31.3.1960 form
    a class by themselves irrespective of their entry in service.
 ~ Further classification or differentiation among them was never F
    intended by Rufe 2423-A as amended from time to time read
    with Rule 2301 of the Railway Pension Rules. Rule 2423-A
    IREC as amended therefore, in our view, would apply to those
    categories of employees who have retired from service after
    31.3.1960 for adding requisite number of years to their G
    qualifying service, so as to claim the pensionary benefits. The
    scope of the proviso of Rule 2423-A of REM Vol. ff came up
 ,~ for consideration before this Court in Secretary (Estt) Railway
    Board and Another v. D. Francis Paul and others, (1996) 10
    sec 134 and this Court held that amendment cannot have H
    286      SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A retrospective effect in respect of person already in service but
  would be prospective; it would be applicable only to those
  candidates appointed after the date of the amendment
  introducing the proviso. Therefore the provision which states that
  the concession be admissible only if the recruitment rule
8 provides so, would operate only prospectively. We fully endorse
  this view.

         12. Civil Appeals are, accordingly, dismissed with the
    directions to the Appellants to calculate the pensionary benefits
    and disburse the same to the respondents at the earliest.
c
    B.B.B.                                     Appeals dismissed.