H. C. Mittal, J. - (1.) THE petitioner was a Senior prosecuting officer in Agra and he took pre-mature retirement on the ground of ill health on 12th April 1976. His date of birth admittedly is 20th October, 1919 and he had joined his service in the year 1943. In the ordinary course be would have retired after completing the age of 58 years i.e. on 20th October, 1977. Thus he took pre-mature retirement about 1 1/2 years before the date of superannuation. THE petitioner's case is that the U. P. Fundamental Rule (Amendment) Act 1976 was enacted on 16-11-1976. Section 2 (ii) of the Act provides that a government servant who took voluntary retirement would be given the benefit of additional service of five years or of such period as he would have served if he had continued till the date of his superannuation. THE petitioner, therefore, after having taken the voluntary retirement claimed the benefit of the said provision for purposes of his pension and gratuity i.e. the date of his retirement should have been taken as 20th October, 1977 and not 12th April 1976.
(2.) THE petitioner sent representation to the Inspector General of Police, along with the copy of G. O. No. 5/7/1977 (3) Karmik dated 24-8-1987 and that representati6n was forward by the Police Headquarter to the Accountant General, U. P. for necessary action through letter dated 21st January 1984 (Annexure 5 to the writ petition). THE petitioner also sent subsequent representations but his request has not been conceded nor any reply has been given to him, hence he has filed the present writ petition. The petition has been contested on the ground that the U. P. Fundamental Rules (Amending) Act 176 had come into force on 16th November, 1976 while the petitioner had taken volountary retirement prior to it on 12th April 1976 and as such he could not take benefit of the Amending Act. Which reads as follows "(ii) In clause (c) the following proviso shall be inserted, namely ;- "provided that where a Government servant who voluntarily retires or is allowed voluntarily to retire under this rule the appointing authority may allow him, for the purposes of pension and gratuity, if any, the benefit of additional service of five years or of such period as he would have served if he had continued till the ordinary date of his superannuation which ever be less." From the above it is clear that no date was specified as to from which it would have been enforceable i.e. the Amending Act does not provide that the benefit shall be available only to those who retire on or after the enforcement of the said Act i.e. the benefit . would not be admissible to those who have retired prior to the enforcement of the said Act. On behalf of the petitioner it was contended that in the absence of any specific provision that the benefit would be given to only those who have retired after the enforcement of the Amending Act and not to those who have retired prior to it, the petitioner who had retired a few month earlier could not be denied the benefit.
(3.) THE pensioners of the government from a class for purpose of pensionary benefits and there could not be mini classification within the class designated as pensioners. THE expression 'pensioner' is generally understood in contra distinction to the one in service. Government servants in service, in other words, those who have not' retired are entitled to salary and other allowances. Those who retire and are designated as 'pensioners' are entitled to receive pension under the relevant rules. THErefore, this would clearly indicate that those who render service and retire on superannuation or any other mode of retirement and are in receipt of pension are comprehended in the expression 'pensioners'. The class of pensioners should not be further divided for the purpose of 'entitlement' and 'payment' of pension into those who retired by certain date and those who retired after that date. If date of retirement is to be accepted as a valid criterion for classification, on retirement each individual Government servant would form a class by himself because the date of each is corelated to his birth and on attaining a certain age he has to retire. This would be too microscopic a classification to be upheld for any valid purpose and would be violative of Article 14 of the Constitution.;