Ashok Shushan, J. - (1.) HEARD Sri R.K. Porwal, learned counsel appearing for the appellant.
(2.) THIS is an appeal against the judgment and order dated 9th September, 2002 passed by learned Single Judge by which order the writ petition filed by the appellant was dismissed. The appellant filed the writ petition by which he challenged the Government order dated 18th October, 1997 by which Government order it was provided that benefit of the Government order shall be given to the teachers and non teaching employees, who retired on the date of issue of the Government order or thereafter. The appellant had earlier filed a writ petition being Writ Petition No.41235 of 1998 praying that his period of service in Junior High School from 25th July, 1959 up to 13th September, 1969 be added in his service in Sri Shiv Narain Inter College from where he retired. This Court disposed of the writ petition directing the Joint Director of Education to decide the representation. The Joint Director of Education vide his order dated 19th March: 1999 took a decision that the period of services of the appellant in Parisadiya institution cannot be added in his service in Inter College since he has retired prior to 18th October, 1997 and the benefit of the Government order was given to those employees who had retired either on 18th October, 1997 or thereafter. The petitioner had challenged both the orders in the writ petition which was dismissed by the learned Single Judge. Learned counsel for the appellant contends that appellant fulfils all the condition of the Government order except condition of cut-off date. Learned counsel for the appellants further contends that cut-off date fixed in the Government order dated 18th October, 1997 is arbitrary. He submits that appellant was also a pensioner and fixing of cut-off date by a Government order was arbitrary and without any rational basis. He has placed reliance on a judgment in the case of D.S. Nakara and others vs. Union of India reported in A.I.R. 1993 S.C. 130.
(3.) WE have considered the submissions of learned counsel for the appellant and perused the record. The submission, which has been pressed before us, is with regard to cut-off date fixed in the Government order dated 18th October, 1997. Learned counsel for the appellant contended that the cut of date is arbitrary since there is no rational basis for fixing cut-off date. He submitted that merely because the appellant had retired prior to cut-off date, he cannot be denied the benefit. Reliance was placed upon the judgment in D.S. Nakara's case (supra). In the said judgment following was laid down in paragraph 49:- "49. But we make it abundantly clear that arrears are not required to be made because to that extent the scheme is prospective. All pensioners whenever they retired would be covered by the Iiberalised pension scheme, because the scheme is a scheme for payment of pension to a pensioner governed by 1972 Rules. The date of retirement is irrelevant. But the revised scheme would be operative from the date mentioned in the scheme and would bring under its umbrella all existing pensioners and those who retired subsequent to that date. In case of pensioners who retired prior to the specified date, their pension would be computed afresh and 198 would be payable in future commencing from the specified date. No arrears would be payable. And that would take care of the grievance of retrospectivity. In our opinion, it would make a marginal difference in the case of past pensioners because the emoluments are not revised. The last revision of emoluments was as per the recommendation of the Third Pay commission (Raghubar Dayal Commission). If the emoluments remain the same, the computation of average emoluments under amended Rule 34 may raise the average emoluments, the period for averaging being reduced from last 36 months to last 10 months. The slab will provide slightly higher pension and if someone reaches the maximum the old lower ceiling will not deny him what is otherwise justly due on computation. The words "who were in service on 31st March, 1979 and retiring from service on or after the date" excluding the date for commencement of revision are words of limitation introducing the mischief and are vulnerable as denying equality and introducing an arbitrary fortuitous circumstance can be severed without impairing the formula. Therefore, there is absolutely no difficulty in removing the arbitrary and discriminatory portion of the scheme and it can be easily severed." ;