- (1.) THE writ petition is directed against the order dated 30th June, 2003, passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad (hereinafter referred to as 'the Tribunal'), whereby the Tribunal has disposed off Original Application No. 1076 of 2001 filed by the petitioner. He has also sought a writ of mandamus commanding the respondents to pay him revised pay scale as per Government of India's office memorandum dated 27th October, 1997 by not treating him as pre- 1996 pensioner and to pay all consequential benefits like arrears of commuted pension, leave encashment, group insurance etc.
(2.) THE brief facts of the present case as emerged from the pleadings of the writ petition are that the petitioner was appointed as Upper Divisional Clerk (Auditor) on 12th September, 1962 and was promoted from time to time on various higher posts. While working as senior audit officer, he attained the age of superannuation in the afternoon of 31st December, 1995, his date of birth being 1st January, 1938. He claimed that he was entitled to be treated as retired on 1st January, 1996, therefore should be given benefit of revised pay scale and fixation of pension in the revised pay scale as provided in the office memorandum dated 27th October, 1997, but the respondents treating him as having retired on 31st December, 1995 did not provide such benefits. THE petitioner was treated as pre-1996 pensioner and has been giving pensionary benefits accordingly, though he claimed that he was entitled to be treated as 1996 pensioner having retired on 1st January, 1996 and was entitled for all consequential benefits accordingly. Claiming the said benefits, he approached the Tribunal in Original Application No. 1076 of 2001. THE Tribunal has disposed off the Original Application by observing that though the Full Bench of the Tribunal (Mumbai camp at Nagpur) in Venkatram Rajagopalan & Anr. v. Union of India & Ors. , has held that "a Government servant completing the age of superannuation on 31-3-1995 and relinquishing charge of his office in the afternoon of that day is deemed to have effectively retired from service with effect from 1-4-1995, hence would be entitled to the benefits which commences with effect from 1-4- 1995", however, the said matter came up for consideration before the Mumbai High Court and therefore the Original Application was disposed off with the direction that in case Mumbai High Court upheld the said decision, the benefit shall also be extended to the petitioner. We have heard learned Counsel for the parties and perused the records. Learned Counsel for the petitioner submitted that the dispute before the Tribunal at Mumbai was not exactly the same as is involved in the Original Application filed by the petitioner before the Tribunal, inasmuch in Mumbai High Court the question involved was whether a petitioner retired on 31st December, 1995 'afternoon' shall be deemed to be retired on 31st December, 1995 or 1st January, 1996. Considering the meaning of the word 'afternoon', it was held that he would actually retire on 1st January, 1996 and not on 31st December, 1995. Here learned Counsel submits that the office memorandum in the present case provides that the revised provision as per the said orders shall be applicable to the Government servants who retire/die in harness on or after 1st January, 1996. He further submits that he was in service till 31st December, 1995 since his age is 1st January, 1938, and thus he completed 58 years of age on 31st December, 1995, therefore was allowed to retire on 31st December, 1995, but in fact his effective date of retirement would be 1st January, 1996, since he was in service up to 31st December, 1995. Thus he should be deemed to have retired on and after 1st January, 1996. He placed reliance on a Division Bench judgment of Andhra Pradesh High Court in Union of India & Ors. v. R. Malakondaiah & Ors. , 2002 Lab IC 1401.
(3.) LEARNED Standing Counsel appearing on behalf of respondents, on the other hand, contended that the petitioner having retired on 31st December, 1995 is not entitled for the benefit of the office memorandum dated 27th October, 1997 and the representation of the petitioner for claiming the said benefit has rightly been rejected by the authorities concerned, as the petitioner is not entitled for any relief. The question which is to be considered in this writ petition is whether the petitioner is entitled to get advantage of the office memorandum dated 27th October, 1997, para 3. 1 which provides that the benefit thereof shall be applicable to such Government servants who retire/die in harness on or after 1st January, 1996. The matter can be considered from two angles i. e. the petitioner's date of birth being 1st January, 1938 and the date of retirement under Fundamental Rule 1956 being 58 years, the first question would be as to on which date he would attain and complete 58 years of age. It appears that a general misconception is that a person attains a particular age on the date on which he is born. The correct position is that in the absence of an express provision the specified age in law has to be computed as having been attained on the day preceding anniversary of his birthday. This issue has been considered earlier also and is no more res integra.;