PANWAR, J. - (1.) THIS appeal has been filed against the Order dated 4-12-2002 passed by learned Single Judge in SBCWP No. 4261/2000, whereby the learned Single Judge dismissed the writ petition filed by the appellant-petitioner.
(2.) THE facts and circumstances giving rise to the instant appeal are that the appellant, after serving the Indian Air Force as Airman (pre-commissioned) for 16 years and 114 days and as a commissioned officer for 12 years 302 days, retired on 30-4-1978. THE last rank held by him was of Squardron Leader. After adding weightage of eight years for the rank Squardron Leader, as per the Rules, his actual period of service comes to 37 years and 51 days. As per the existing rules, only 2/3 of his pre-commissioned service was to be credited and as such his pre-commissioned service was treated as 10 years and 315 days (2/3 of 16 years and 114 days) and after adding the full service tenure of 12 years and 302 days as Commissioned officer, his total service tenure was treated as 31 years 252 days as qualifying service for the purpose of pensionary benefits. On the recommendations of the Fourth Central Pay Commission, the Government of India issued the Order Annex. R/1 dated 30-10- 1987, wherein under the caption "qualifying Service", Note (4) provides full pre-commissioned service rendered under Central Government whether in a Civil Department or in the Armed Forces, shall be taken into account for working out the qualifying service for earning pensionary benefits, subject to fulfilment of other conditions, in respect of officers and PBORs retiring or dying in harness on or after 1-1-1986, but since the appellant retired on 30-4-1978, the benefit of the said scheme was not accorded to him. The case of the appellant is that though fixing the cut-off date of 1-1-1986 was arbitrary yet he could not challenge the same as at that time he was not affected thereby. The grievance raised by the appellant is that the Fifth Central Pay Commission removed the entire disparity of Pre-1986 and Post- 1986 retired and recommended full 50% pension of the rank held for the Commissioned Officer having 33 years of reckonable service including the weightage of eight years, but no change was made regarding counting of 2/3 of the pre-commissioned service and as such the appellant remained at the lower pedestal than Post-1986 retirees as his total reckonable service was taken to be 31 1/2 years and not full requisite period of 33 years. Being aggrieved and dissatisfied, the appellant preferred SBCWP No. 4261/2000, which stood dismissed by the learned Single Judge vide impugned Order dated 4-12-2002 on the grounds that (i) the appellant failed to prove that he was not adversely affected in the year 1987 when the Fourth Central Pay Commission Report was implemented; (ii) he also failed to prove that the cut off date of 1-1-86 is arbitrary or unreasonable; (iii) he also failed to prove how he has been adversely affected after implementation of the report of Fifth Pay Commission; (iv) he cannot be permitted to challenge the settled position of counting the length of service for eligibility which was prevailing since before 1978 and continued till 1986 as late as in the year 2002; and (v) also on the ground of non-production of the reports of Fourth and Fifth Central Pay Commissions. Hence this special appeal. We have heard learned counsel for the parties and perused the impugned Order as well as the record. The first contention raised by the learned counsel for the appellant is that the benefit of liberalisation of pension scheme should be extended to all the retirees irrespective of their date of retirement. In support of his contention, he has placed reliance upon the decisions of the Hon'ble Supreme Court in D. S. Nakara & Ors. vs. Union of India (1), V. Kasturi vs. Managing Director, State Bank of India, Bombay & Ors. (2), and Gurvinder Kang (Mrs.) & Ors. vs. Director of Education & Ors. We have carefully gone through these decisions of the Hon'ble Supreme Court/delhi High Court and after careful consideration, we are of the view that those were cases where an artificial date/classification was specified classifying the retirees/employees, governed by the Rules and similarly situated, into two different classes, depriving one such class of the benefit of liberalised Pension Rules whereas in the instant case, the employees retiring prior to 1-1-86 and those retiring thereafter were governed by different sets of rules.
(3.) IN State of West Bengal & Ors. vs. Ratan Behari Dey & Ors. (4), the Apex Court held as under:- " It is open to the State or to the Corporation, as the case may be, to change the conditions of service unilaterally. Terminal benefits as well as pensionary benefits constitute conditions of service. The employer has the undoubted power to revise the salaries and/or the pay scales as also terminal benefits/pensionary benefits. The power to specify a date from which the revision of pay scales or terminal benefits/pensionary benefits, as the case may be, shall take effect is a concomitant of the said power. The State can specify a date with effect from which the Regulations framed, or amended, as the case may be, shall come into force. It was within the power of the Corporation to enforce the Regulations either prospectively or with retrospective effect from such date as they might specify. Only condition is that in such cases the State cannot, pick a date out of its hat. It has to prescribe the date in a reasonable manner, having regard to all the relevant facts and circumstances. So long as such date is specified in a reasonable manner, i. e. without bringing about a discrimination between similarly situated persons, no interference is called for by the Court in that behalf on ground of discrimination. " In T. N. Electricity Board vs. R. Veerasamy & Ors. (5), while reversing the decision of the High Court, observed that the appellant-Board has not acted illegally or contrary to law in introducing pension scheme prospectively from 1-7-1986 and the employees who retired before 1-7-86 cannot compel the appellant- Board to extent benefit of pension scheme with retrospective effect. The Apex Court held as under:- " Moreover, the appellant-Board has given well-founded reasons for introducing pension scheme from 1-7-1986, including the reason of financial constraints, which is a valid ground. Employees who had retired from service before 1-7-1986 and those who were in employment on that date, cannot be treated alike as they do not belong to one class. Those who retired after receiving all benefits available under the CPF Scheme, cease to be employees of the appellant-Board from the date of their retirement. They form a separate class. " In State of U. P. & Anr. vs. Jogendra Singh & Anr. (6), the Hon'ble Supreme Court observed that all laws are prospective unless they are made retrospective either expressly or by necessary or by necessary implication and as the Amending Act did not make the amendment retrospective, therefore, persons who retired at a time when the proviso was not on the statute-book, cannot claim the benefit of the proviso. ;