JUDGMENT
H.R. Panwar, J.
1. This appeal has been filed against the Order dated 4-12-2002 passed by learned Single Judge in SBCWP No. 4261/2000, whereby the learned Single Judge dismissed the writ petition filed by the appellant-petitioner.
2. The facts and circumstances giving rise to the instant appeal are that the appellant, after serving the Indian Air Force as Airman (pre-commissioned) for 16 years and 114 days and as a commissioned officer for 12 years 302 days, retired on 30-4-1978. The last rank held by him was of Squardron Leader. After adding weightage of eight years for the rank Squardron Leader, as per the Rules, his actual period of service comes to 37 years and 51 days. As per the existing rules, only 2/3 of his pre-commissioned service was to be credited and as such his pre-commissioned service was treated as 10 years and 315 days (2/3 of 16 years and 114 days) and after adding the full service tenure of 12 years and 302 days as Commissioned officer, his total service tenure was treated as 31 years 252 days as qualifying service for the purpose of pensionary benefits.
3. On the recommendations of the Fourth Central Pay Commission, the Government of India issued the Order Annex.R/1 dated 30-10- 1987, wherein under the caption “Qualifying Service”, Note (4) provides full pre-commissioned service rendered under Central Government whether in a Civil Department or in the Armed Forces, shall be taken into account for working out the qualifying service for earning pensionary benefits, subject to fulfilment of other conditions, in respect of officers and PBORs retiring or dying in harness on or after 1-1-1986, but since the appellant retired on 30-4-1978, the benefit of the said scheme was not accorded to him. The case of the appellant is that though fixing the cut-off date of 1-1-1986 was arbitrary yet he could not challenge the same as at that time he was not affected thereby. The grievance raised by the appellant is that the Fifth Central Pay Commission removed the entire disparity of Pre-1986 and Post-1986 retired and recommended full 50% pension of the rank held for the Commissioned Officer having 33 years of reckonable service including the weightage of eight years, but no change was made regarding counting of 2/3 of the pre-commissioned service and as such the appellant remained at the lower pedestal than Post-1986 retirees as his total reckonable service was taken to be 31 1/2 years and not full requisite period of 33 years.
4. Being aggrieved and dissatisfied, the appellant preferred SBCWP No. 4261/2000, which stood dismissed by the learned Single Judge vide impugned Order dated 4-12-2002 on the grounds that (0 the appellant failed to prove that he was not adversely affected in the year 1987 when the Fourth Central Pay Commission Report was implemented; (ii) he also failed to prove that the cut off date of 1-1-86 is arbitrary or unreasonable; (iii) he also failed to prove how he has been adversely affected after implementation of the report of Fifth Pay Commission; (iv) he cannot be permitted to challenge the settled position of counting the length of service for eligibility which was prevailing since before 1978 and continued till 1986 as late as in the year 2002; and (v) also on the ground of non-production of the reports of Fourth and Fifth Central Pay Commissions. Hence this special appeal.
5. We have heard learned counsel for the parties and perused the impugned
Order as well as the record.
6. The first contention raised by the learned counsel for the appellant is that the
benefit of liberalisation of pension scheme should be extended to all the retirees
irrespective of their date of retirement. In support of his contention, he has placed
reliance upon the decisions of the Hon’ble Supreem Court D.S. Nakara and Ors. v. Union of India (1). V. Kasturi (SIC) Managing Director of State Bank of India, Bombay and Ors. (2), and Gurvinder Kang (Mrs.) and Ors. v. Director of Education and Ors. (3), We have carefully gone though these decisions of the Hon’ble Supreme Court/Delhi High Court and after careful consideration we are of the view that those were cases where an artificial date/classification was specified classifying the (SIC)/employees, governed by the Rules and similarly situated into two different classes depriving one such class of the benefit of liberalised Pension Rules whereas in the instant case, the employees
retiring prior to 1-1-86 and those retiring thereafter were governed by different sets of
rules.
7. In State of West Bengal and Ors. v. Ratan Behari Dey and Ors. (4), the Apex Court held as under:-
“It is open to the State or to the Corporation, as the case may be, to change the conditions of service unilaterally. Terminal benefits as well as pensionary benefits constitute conditions of service. The employer has the undoubted power to revise the salaries and/or the pay scales as also terminal benefits/pensionary benefits. The power to specify a date from which the revision of pay scales or terminal benefits/pensionary benefits, as the case may be, shall take effect is a concomitant of the said power. The State can specify a date with effect from which the Regulations framed, or amended, as the case may be, shall come into force. It was within the power of the Corporation to enforce the Regulations either prospectively or with retrospective effect from such date as they might specify. Only condition is that in such cases the State cannot, pick a date out of its hat. It has to prescribe the date in a reasonable manner, having regard to all the relevant facts and circumstances. So long as such date is specified in a reasonable manner, i.e. without bringing about a discrimination between similarly situated persons, no interference is called for by the Court in that behalf on ground of discrimination.”
8. In T.N. Electricity Board v. R. Veerasamy and Ors. (5), while reversing the decision of the High Court, observed that the appellant-Board has not acted illegally or contrary to law in introducing pension scheme prospectively from 1-7-1986 and the employees who retired before 1-7-86 cannot compel the appellant- Board to extent benefit of pension scheme with retrospective effect. The Apex Court held as under:-
“Moreover, the appellant-Board has given well-founded reasons for introducing pension scheme from 1-7-1986, including the reason of financial constraints, which is a valid ground. Employees who had retired from service before 1-7-1986 and those who were in employment on that date, cannot be treated alike as they do not belong to one class. Those who retired after receiving all benefits available under the CPF Scheme, cease to be employees of the appellant-Board from the date of their retirement. They form a separate class.”
9. In State of U.P. and Anr. v. Jogendra Singh and Anr. (6), the Hon’ble Supreme Court observed that all laws are prospective unless they are made retrospective either expressly or by necessary or by necessary implication and as the Amending Act did not make the amendment retrospective, therefore, persons who retired at a time when the proviso was not on the statute-book, cannot claim the benefit of the proviso.
10. In State of West Bengal v. Monotosh Roy and Anr. (7), the State of West Bengal, on the recommendations of the Pay Commission, revised the pension from a cut off date; the respondent- employee retired from service long before the cut off date and he was not found entitled to any benefits of the revised pension. The Apex Court held as under:-
“In matter of revising the pensionary benefits and even in respect of revision of scales of pay, a cut-off date on some rational or reasonable basis has to be fixed for extending the benefits. The new provisions for 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. Therefore, the respondent cannot claim benefit of higher pay scale having retired from service long before the introduction of such pay scales. He cannot claim a pension higher than the pay drawn by him.”
11. In Commander Headquarter, Calcutta and Ors. v. Capt. Biplabendra Chanda (8), while distinguishing the law laid down in D.S. Nakara’s case (supra), the Hon’ble Supreme Court held as under:-
“The new and revised Rules which came into force with effect from 1-1-1986 were not given retrospective effect. The respondent cannot be made retrospectively eligible for pension by virtue of these Rules in such a case. This is not a case where a discrimination is being made among pensioners who were similarly situated. Accepting the respondent’s contention would have very curious consequences; even a person who had retired long earlier would equally become eligible for pension on the basis of the 1986 Rules. This cannot be.”
12. In State Bank of India v. L. Kannaiah and Ors. (9), the respondents served in the Army as Sepoys and joined the service of the Bank as Security Guards. They were denied pensionary benefits on the ground that their total service in Bank was less than 20 years. The Apex Court held that the Circular issued does not obligates the Management of the Bank to add the military service to the service rendered in the Bank for the purpose of pension.
13. In Government of Tamil Nadu and Ors. v. M. Ananchu Asari and Ors. (10), the Hon’ble Apex Court held that the criteria to fix the date for pensionary entitlement to coincide with the date of permanent absorption cannot be said to be irrational or irrelevant.
14. In State of Gujrat and Ors. v. Bhaterdevi Ramnivas Sanwalram (11), the husband of the respondent died in harness in 1980 after putting in 3 years 10 months service whereas the minimum service required for grant of family pension was 5 years under 1972 Scheme. A resolution was passed by the State Government in 1987 doing away the requirement of minimum 5 years service for grant of family pension. The High Court allowed family pension to the widow of the deceased employee. The Apex Court, while setting aside the decision of the High Court, held that the Resolution of 1987 applies only to those who were in service on 1-1-1986.
15. In State of West Bengal and Anr. v. West Bengal Govt. Pensioners Association and Ors. (12), the State of West Bengal, vide West Bengal Services (Revision of Pay and Allowances) Rules, 1990, revised the pay scale of those employees who were in service on 1-1-1986 even though such employees may have retired before the 1990 Rules were in fact published. As far as those retired employees were concerned, their pay was revised notionally and a memorandum was issued giving them pensionary benefits calculated on the basis of such notionally revised scales of pay. This was challenged by the pre-1986 retirees. The pre-1986 retires claimed that they too were entitled to the same benefits as the post 1986 retirees. The Apex Court held that the claim for parity in pension made by pre-1986 retirees was not tenable.
16. In view of the aforesaid settled legal proposition, the appellant cannot be granted the benefit of liberalisation of pension scheme which was made applicable w.e.f. 1-1-1986 whereas the appellant attained the age of superannuation on 30-4-1978.
17. The next contention raised by the learned counsel for the appellant is that when the Fifth Central Pay Commission has proceeded to remove the disparity between Pre-1986 and Post-1986, the appellant should have been brought into the same fold as that of Post-1986 retirees and the financial burden cannot be a criterion to refuse the benefit to the appellant. A perusal of the record shows that the Fifth Central Pay Commission did not alter the position so far as counting of 2/3 of pre-commissioned service is concerned. What has been done by the said Commission is that the officers who had completed 33 years of service (including the weightage of eight years) were accorded some benefits. The Fifth Central Pay Commission was fully conscious that only 2/3 of Pre-1-1-1986 retirees service will be counted which they rendered as pre-commissioned officers. It was a policy-decision and financial burden may be one of the grounds in doing so. In view of the decision of the Hon’ble Supreme Court in T.N. Electricity Board’s case (supra), financial constraints is a valid ground for depriving such benefits to the persons who retired before the cut-off date, i.e. 1-1-1986.
18. There is yet another aspect of the matter. The cut-off date of 1-1-1986 was fixed at the time of implementing the recommendations of the Fourth Central Pay Commission way back in the year 1987. The appellant, who retired on 30-4-1978, did not challenge the said cut-off date for the alleged want of knowledge. After implementation of the recommendations of the Fifth Central Pay Commission, he had tacitly challenged the cut-off date at a very belated stage. The learned Single Judge has considered the aspects of long and unexplained delay in right perspective.
19. The last submission made by the learned counsel for the appellant is that the earlier provisions were not based on rank pay but the criterion was the last pay drawn and length of service whereas the Fifth Central Pay Commission has recommended the criterion of 50% of pay of rank, subject to 33 years of service. The argument, even if conceded, does not come to the rescue of the appellant as he has not rendered 33 years service as per the then existing Rules. He cannot get the benefit of counting whole of his pre-commissioned service being a retiree of Pre-1-1-1986. After counting 2/3 of pre-commissioned service as per the rules, full tenure of Commissioned service and adding the benefit of eight years’ weightage, his total pensionable service comes to 31 1/2 years. Thus, the appellant was rightly denied the relief claimed by him.
20. Moreso, impugned order Annex. 2 is an out-come of the order dated 30-10-87 (Annex.R/1) by which 2/3rd of pre-commissioned service is to be counted or taken as qualifying service for earning pensionary benefits but that order has neither been placed on record nor challenged. It is settled proposition of law that unless the order under challenge is filed and placed on record, the Court has no power to quash the same. In Surender Singh v. Central Government (13), the Hon’ble Supreme Court has held that the High Court cannot pass an order in such a case in absence of the impugned order being on record. The Apex Court observed as under: –
“In absence of order under challenge, the High Court could not quash the same. Normally whenever an order of the Government or some authority is impugned before the High Court under Article 226 of the Constitution, copy of the order must be produced before it. In absence of impugned order it would not be possible to assign the reason which have impelled the authority to pass the order. It is therefore, improper to quash an order which is not produced before the High Court in a proceeding under Article 226 of the Constitution.”
21. Similar view has been taken by this Court without referring to the said judgment in Gautam Lal v. State of Rajasthan (14). Hence, without quashing that order, no relief can be granted to the petitioner and without filing that order, the same cannot be quashed.
22. In this view of the matter, we do not find any merit in this special appeal warranting interference with the impugned Order passed by the learned Single Judge. Consequently, the appeal fails and is accordingly dismissed. There shall be no order as to costs.