G. B. PATTANAIK, J. - (1.) THESE two appeals involve a common question of law and as such were heard together and are being disposed off by the common judgment. The respondent in both the appeals are pre-1979-retiree, the respondent in Civil Appeal No. 5450 of 1994 having superannuated on 14-11-1969 and the respondent in the other appeal having superannuated before December 1968. On superannuation, their pension had been computed in accordance with Rule 256 of the Rajasthan Service Rules 1951, (hereinafter referred to as 'the Rules') whereunder Dearness Allowance received by them while in service had not been taken into account for computation in the amount of pension. On 18/03/1971 the Governor of Rajasthan in exercise of powers conferred by proviso to Article 309 of the Constitution amended the Rules giving it retrospective effect w.e.f. 1-4-1970, which was inserted as Rule 250-C(1)(a). The said provision stipulates that in case of Government Servants retiring from service on or after 1-4-1970 the term "emoluments" used for the purpose of pension, service gratuity and death-cum-retirement gratuity shall mean the pay as defined in Rule 7(24) and Dearness pay appropriate to pay, if any, which the officer was receiving immediately before his retirement. The aforesaid provision is extracted herein below in extenso : "Notwithstanding the provisions contained in rules 250, 250-A, 250-B in case of Government Servants retiring from service on or after 1-4-1970, the term emoluments used for purposes of pension, service gratuity and death-cum-retirement gratuity shall mean the "pay" as defined in rule 7(24) and dearness pay appropriate to pay, if any, which the officer was receiving immediately before his retirement, provided that- (2) The Special Pay, if any, granted for performance of additional duties or a post in addition to duties of his own post shall not be taken into account for the purpose of this rule."
(2.) BY the said Notification dated 18/03/1971 Rule 250-A(1) was also amended giving it retrospective effect from w.e.f. 1-4-1970, which is extracted hereinbelow in extenso : "Notwithstanding the provisions contained in rule 256, in case of a Government servant retiring from service on or after 1-4-70 the amount of superannuation, retiring, invalid and compensation gratuity and the pension shall be admissible as follows : JUDGEMENT_317_10_1997Html1.htm By Notification dated 2-12-1974 giving it retrospective effect w.e.f. 31-10-1974 Rule 256-B was also amended which extracted herein below in extenso : "Notwithstanding the provisions contained in Rule 256-A, in respect of a Government Servant retiring on or after 31-10-1974 the amount of superannuation retiring invalid and compensation gratuity and pension admissible shall be as follows :- JUDGEMENT_317_10_1997Html2.htm The effect of the aforesaid amendment was that while the maximum pension in respect of Government Servants retiring from service on or after 1-4-1970 was 8,100, but those who retired on or after 31-10-1974 it became 12,000 and while in case of the former pension was to be computed on 30/80th but in case of later it became 33/80th. By Notification dated 2.12.74 Rule 250-C(3) was also amended providing therein that in case of Government servants retiring on or after 31-10-1974 the term "emoluments" used for the purpose of pension, service gratuity and death-cum-retirement gratuity shall mean pay as defined in Rule 7(24) and shall include dearness allowance, dearness pay (where admissible) and ad-hoc reliefs admissible on 31-12-1972. By Notification dated 21-1-1980, the Government of Rajasthan provided a revised formula for calculation of pension on slab basis in respect of Government Servants retiring on or after 31/03/1979. By yet another Notification dated 2/09/1985, the Government of Rajasthan, extended the benefit of revised pension formula to pre- 31-3-1979 pensioners. This benefit was extended to pre- 31-3-1979 retirees possibly because of the decision of this Court in, D.S. Nakara v. Union of India, 1983 (2) SCR 165. The respondent in the first case approached the Rajasthan High Court in the year 1989 which was registered as Civil Writ Petition No. 575 of 1989 claiming the benefits of the three amended provisions referred to earlier and contended that the amended provisions so far as they provided a cut-off date for its application are arbitrary. It may be stated that the Circular of 2/09/1985 by which revised pension formula was extended to pre-31-3-1979 pensioners was not challenged and on the other hand it was prayed that after determination of the emoluments in accordance with the amended provisions of 1970 and 1974, the relief may be granted in accordance with the Circular dated 2/09/1985. The Division Bench of the Rajasthan High Court following the decision of this Court in, Nakara's case (AIR 1983 SC 130), referred to supra, struck down the cut-off date of 1-4-1970 in Rule 256-A as well as struck down the cut-off date of 1-4-1973 in Rule 250-C and also struck down the cut-off date provided under sub-rule (3) of Rule 250-C. If also held that the computation of pension as per Rule 256-B should be made applicable to all Government Servants irrespective of date of retirement and the provision making it applicable to those Government servants who have retired on or after 31-10-1974 is invalid. The High Court further directed that the pension of the respondent should be refixed as per Notification dated 2-9-1985 after determining the emoluments of the respondent under the amended provisions.
(3.) IN the second case, the writ petition was heard by a learned single Judge who allowed the same on identical grounds and an appeal against the same to the Division Bench by the State of Rajasthan was dismissed and thus the appeal by special leave therein. Mr. Aruneshwar Gupta, the learned counsel appearing for the appellant contended that the decision of this Court in, Nakara's case (AIR 1983 SC 130), has been watered down by the subsequent decisions in, Krishena Kumar's case, (1990) (4) SCC 207 : (AIR 1990 SC 1782), Indian Ex-Services League v. Union of India, (1991) 2 SCC 104 : (1991 AIR SCW 327, State of West Bengal v. Ratan Behari Dey, (1993) 4 SCC 62 : (1993 AIR SCW 2980) and in State of Rajasthan v. Sevanivatra Karamchari Hitkari Samiti, (1995) 2 SCC 117 : (1995 AIR SCW 1469) and the law as it stands now it is permissible for the State Government to provide different modes of computation of pension in respect of Government Servants retiring on different dates and it cannot be challenged on the ground of discrimination so long as the cut-off date thus provided has a reasonable nexus with the change in the mode of the computation. The learned counsel went to the extent of urging that the principles laid down by this Court in, Nakara's case (AIR 1983 SC 130), is no longer being followed in recent cases and, therefore, the High Court was in error in allowing the writ petition following the decision of this Court in Nakara's case. Mr. Gupta also urged that the respondent in each of the appeals having superannuated in 1969 and 1968 respectively and having not challenged the different amended provisions which came into existence between 1970 and 1974 and having approached the High Court in the year 1989 long 19 years after the first amended provision was made in 1970, the High Court should not have entertained the writ petition at all. The learned counsel lastly urged that in any of the matter the Notification of 2/09/1985 having provided for a revised pension formula to pre-31-3-1979 pensioners which includes the respondents case and the said Notification having indicated the mode of computation of pension and as well as having defined the expression 'emoluments' and without challenging the said Notification the respondent is not entitled to the relief as granted by the High Court.;