REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 523 OF 2005
Union of India & Ors. ..... Appellants
Versus
V.D. Dubey (dead) by Lrs. ..... Respondent
WITH
(Civil Appeal Nos. 1024/2005 & 1025/2005)
JUDGMENT
K.S. Radhakrishnan, J.
1. The question that arises for consideration in these cases is whether
the Rule 2423-A 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 the fact whether the recruitment rules at the time
of their appointment had contained such a specific provision or not.
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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 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 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 five years whichever is less
provided the post held by him is one for which 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 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-A/R-II would
be admissible to all those who retire from service or posts after 31.3.1960 and
who were otherwise eligible under Rule 2423-A/R-II which was made effective
from 28th October, 1997.
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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 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 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-II.
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 adding to his service,
the period by which the respondent at the time of recruitment exceeded 25 years
of service or a period 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
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
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originally stood was found incongruous and consequently it was amended on
4.12.1987, whereby it was decided the benefit of added years of service under
the Rule 2423-A/R-II 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-II. It was, therefore, held that the Rule as stood after modification is that
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 crossed the age of 25 years. While
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 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 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.
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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 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
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 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-II
as amended in the year 1976 provided that the benefit of added years of service
can only be granted to whom if the recruitment Rules confers such a benefit
when a person is appointed. Learned senior counsel submitted that the
respondents were appointed in service when the recruitment rules did not
provide such a provision. Learned counsel also 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
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entitled to such benefits. Learned counsel further submitted that the respondent
retired in the year 1989 by which 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 of pensionary benefits. Similar was a contention
raised in respect of other two cases also.
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 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 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 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
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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 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 intended by Rule 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 qualifying service, so as to claim the pensionary
benefits. The scope of the proviso of Rule 2423-A of REM Vol. II came up for
consideration before this Court in Secretary (Estt) Railway Board and Another v.
D. Francis Paul and others, (1996) 10 SCC 134 and this Court held that
amendment cannot have 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 provides so, would operate only prospectively. We fully endorse
this view.
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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.
………………………….J.
( J.M. Panchal)
………………………….J.
( K.S. Radhakrishnan)
New Delhi
December 8, 2009