The Secretary (Estt)Railway … vs Shri D. Francis Paul Etc on 15 July, 1996

Supreme Court of India
The Secretary (Estt)Railway … vs Shri D. Francis Paul Etc on 15 July, 1996
Equivalent citations: JT 1996 (7) 706
Author: K Ramaswamy
Bench: Ramaswamy, K.
           PETITIONER:
THE SECRETARY (ESTT)RAILWAY BOARD & ANR. ETC.

	Vs.

RESPONDENT:
SHRI D. FRANCIS PAUL ETC.

DATE OF JUDGMENT:	15/07/1996

BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)

CITATION:
 JT 1996 (7)   706


ACT:



HEADNOTE:



JUDGMENT:

WITH
SPECIAL LEAVE PETITION (CIVIL) NO.14887 OF 1996
(CC-3212/96)
O R D E R
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 July 3, 1964. After putting in qualifying
service of 25 years, they retired from service on June 13,
1989 and March 31, 1992 respectively. They relied upon Rule
2423-A of the Railway Establishment Mannual II claiming
addition of 5 years qualifying service for computation of
their pension. The Tribunal in the impugned orders dated
6.12.1995 allowed the applications and computation thereof.
The same are assailed in their applications.

Rule 2423-A reads thus:

“2423-A (C..S.R.404-B):- An Officer
appointed to a service or post on
or after Ist 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 or
the actual period by which his age
at the time of recruitment exceeds
twentyfive 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 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
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 thirtyfive years or more may,
within a period of three months
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 Fund as a
nonpensionable employee.”

The amended rule reads thus:

“The above Rule was amended as can
be seen from the Railway Ministry’s
letter No.F(E)III/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
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
shall be eligible to subscribe to
the State Railway Provident Fund as
a nonpensionable employee.
(3) The option referred to in sub-
rule (2) once exercised, shall be
final.”

Relying upon this proviso by later amendment, it is
contended that since no specific provision 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 would be prospective. It is not
in dispute that this amendment came to be made pursuant to
recommendation made by the III Pay Commission and on
acceptance thereof the rule came to be amended. Under these
circumstances, the amendment cannot have retrospective
effect in respect of the persons already in service would be
prospective; it would be applicable only to those candidates
appointed after the date of the amendment introducing the
proviso.

The special leave petitions are accordingly dismissed.

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