IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.: 6911 of 2008. Reserved on: 14.05.2010. Decided on: 20.05.2010. Smt. Nirmal Goel and Others. … Petitioners. Versus State of Himachal Pradesh and others. … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioners: Mr. Dilip Sharma, Advocate. For the Respondents: Mr. R.K. Sharma, Senior Additional Advocate General with Mr. Anil Jaswal, Deputy Advocate General for respondents No.1, 2 and 4. Mr. Sandeep Sharma, Assistant Solicitor General of India for respondent No.3. Rajiv Sharma, Judge: It will be apt at the very outset to point out that the original petition was filed by the husband of petitioner Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - No.1 and father of petitioners No.2 to 5, who died during the pendency of this petition and his legal representatives, i.e. the present petitioners No.1 to 5 were brought on record vide order dated 19th June, 2006. However, in order to maintain clarity in the facts, the deceased petitioner, K.K. Goel will be addressed as ‘original petitioner’. 2. Material facts necessary for adjudication of this petition are that the original petitioner was retired vide notification dated 17th February, 1995 on 31.3.1995. Necessary entries were made and the same were attested and signed on 31.3.1995 by the then Superintending Engineer in his service book. He had received salary for the day of 31.3.1995. His case for pension was sent by the Superintending Engineer, Irrigation and Public Health Circle, Rampur vide letter dated 29.7.1994 to the Senior Deputy Accountant General (A&E), Himachal Pradesh, who vide letter dated 13.3.1995 declared that the original petitioner would be entitled to pension as mentioned in the letter with effect from 1.4.1995. The amounts of pension and gratuity were modified vide letter dated 25.9.1995, but the date of entitlement of pension remained the same, i.e. 1.4.1995. A specific endorsement has been made to this effect that the pension will commence from 1.4.1995. Even as per Annexure A-5, dated 25.9.1995 the revised pension was payable with effect from 1.4.1995. Respondent-State has taken a decision vide - 3 - office memorandum dated 15th May, 1997 whereby the Dearness Allowance as admissible to the employees as on 1.4.1993 was to be considered as Dearness Pay for reckoning emoluments for the purpose of retirement gratuity and death gratuity under the Central Civil Services (Pension) Rules, 1972 in the case of Himachal Pradesh Government employees who retired or whose death occurred on or after 1.4.1995. It was further ordered that in case of the incumbents who have already retired/died on or after the 1st day of April, 1995, the retirement gratuity and death gratuity shall be recomputed suo-moto by the Heads of Offices concerned and arrears, if any, paid after obtaining authorization from the Accountant General, Himachal Pradesh. The original petitioner was legitimately expecting that he will also be paid enhanced amount of retirement gratuity as per office order dated 15th May, 1997. However, when the needful was not done, he made a representation to the Superintending Engineer on 5.6.2000 for payment of additional gratuity amount as per memorandum dated 15th May, 1997. The matter was taken up by respondent No.2 with respondent No.3 on 24.6.2000. Respondent No.3 sent a communication to respondent No.2 on 25.7.2000. The Senior Accounts Officer informed the respondent No.2 that the judgment of the learned Central Administrative Tribunal mentioned in communication dated 24.6.2000 was not applicable to the State Government - 4 - employees; however, a further endorsement was made that the case of the original petitioner be sent to the Finance Department for decision. The fact of the matter is that the Superintending Engineer instead of sending the case to the Finance Department, himself took the decision to deny the payment of additional gratuity to him on 17.8.2000. 3. Mr. Dilip Sharma, learned counsel for the petitioners has strenuously argued that the original petitioner will be deemed to have worked upto 31.3.1995 and his date of retirement is to be reckoned from 1.4.1995. He then contended that the original petitioner was entitled to additional amount of retirement gratuity as per office memorandum dated 15th May, 1997. He has also referred to F.R.56 and Rule 35 of the Central Civil Services (Pension) Rules, 1972. Mr. R.K. Sharma, learned Senior Additional Advocate General has supported the decision of the State Government, Annexure A-10, dated 17.8.2000. 4. I have heard the learned counsel for the parties and gone through the record carefully. 5. Mr. R.K. Sharma, learned Senior Additional Advocate General, at the very outset has taken the ground of delay and laches. According to him, the cause of action has arisen to the original petitioner on 15th May, 1997, however, the present petition was filed in the year 2000. There is no force in this contention of the learned Senior Additional - 5 - Advocate General. The original petitioner retired in the year 1995. The office memorandum was issued on 15th May, 1997. A specific endorsement has been made in the office memorandum that it was the duty of the Head of Offices concerned to recompute the retirement gratuity/death gratuity suo-moto. It is only when the needful was not done, the original petitioner made a representation on 5.6.2000. His case was forwarded by respondent No.2 to respondent No.3 on 24.6.2000 and respondent No.3 informed respondent No.2 on 25.7.2000 that the judgment of the Central Administrative Tribunal was not applicable to the State Government employees and the matter be taken up with the Finance Department. The request of the original petitioner was turned down on 17.8.2000 and the present petition has been filed on 5.9.2000. Accordingly, there is no delay in filing the present petition. 6. It is provided under F.R. 56 that every Government servant would retire from service “on the afternoon of the last day of the month” in which he attained the age of 60 years. Rule 83(1) of the Central Civil Services (Pension) Rules, 1972 provides as under:- “Except in the case of a Government servant to whom the provisions of Rule 37 apply and subject to the provisions of Rule 9 and 69, a pension other then family pension shall become payable from the date on which - 6 - Government servant ceases to be borne on the establishment.” 7. It is evident from the language employed in Rule 83(1) that the pension becomes payable from the date on which Government servant ceases to be borne on the establishment. A Government servant continues to be borne on the establishment till midnight of the date of superannuation. There is no force in the submission of Mr. R.K. Sharma that the original petitioner has retired as per F.R. 56 on the last day of the month, i.e. 31.3.1995. He has been paid salary in the present case upto 31.3.1995. A person retiring “on the afternoon of the last day of the month” shall be deemed to be continuing in service till midnight of that day. A person shall cease to be an employee when he actually retires from service on and from the next day of attaining his age of superannuation, i.e. with effect from 1st of the month following the last day of the month of superannuation. 8. In the instant case, the original petitioner has been held entitled to pension with effect from 1st April, 1995 as per Annexures A-4 and A-5. In the present case, effective date of retirement of the original petitioner would be 1st April, 1995 and not 31.3.1995. This question has also been gone in great depth in a well reasoned judgment of the learned Central Administrative Tribunal in Venkatram Rajagopalan and - 7 - Anr. Versus Union of India & Ors., 2001(1) A.T.J. 1. The learned Tribunal has held as under (paras 5, 6, 7 and 9):- “At the relevant time, F.R. 56 provided that every Government servant would retire from service “on the afternoon of the last day of the month” in which he attained the age of 58 years. Rule 35 of the Central Civil Services (Pension) Rules 1972. (in short “Pension Rules).” “A superannuation pension shall be granted to a Government servant who is retired on his attaining the age of compulsory retirement”. Rule 83(1) of the Pension Rules says: “Except in the case of a Government servant to whom the provisions of Rule 37 apply and subject to the provisions of Rule 9 and 69, a pension other then family pension shall become payable from the date on which Government servant ceases to be borne on the establishment.” According to the Learned Counsel for the respondents, retirement from service “on the afternoon of the last day of the month” would mean severance of relationship of master and servant after office hours of the last day of the month itself. That means a person remains in Government service for about 17 hours (i.e. from 1.00 a.m. to 5.00 p.m.) on - 8 - the date of his superannuation and ceases to be in such service for the remaining 7 hours of the day. Why then such an employee does not get retirement pension for the last day of superannuation, the Learned Counsel says, because he was paid salary for that day. The reasoning appears to be fallacious. A person cannot be deemed to be in service for one part of a day and out of service for the other part of the day. In other words, we are of the view that such an employee retiring from service “on the afternoon of the last day of the month” is deemed to be continuing in service till the midnight of that day and accordingly for all practical and technical purposes, he must be deemed to have ceased from service or to have actually retired from service on and from the next date of attaining his age of superannuation, i.e., with effect from 1st of the month following the last day of the month of superannuation. Meaning of the word “afternoon” given on page 109 in Prem’s Judicial Dictionary, Vol. 1, 1992Edition, published by Bharat Law Publications, Jaipur, is as follows: “Afternoon – This word has two senses. It may mean the whole time from noon to midnight; or it may mean the earlier part of the time, as distinguished from the event. When used in a statute its meaning must be determined by the context and the circumstances of the subject matter (Reg. v. - 9 - Knapp. 2 EI. & BI 451) (1853) 2 B 447 (451). In 9 Geo. 4 c. 61, sch. C., the expression ‘afternoon divine service’ means, the earlier part of the time from noon to midnight as distinguished from the evening.” According to Rule 83(1) of the Pension Rules, Pension becomes payable from the date on which Government servant ceases to be born on the establishment. (emphasis given). A government servant continues to be born on the establishment till midnight of the date of superannuation. The decision of the Hyderabad Bench of this Tribunal in T. Krishna Murthy’s case (supra) cannot be brushed aside out by the Learned Counsel for the respondents. Retirement may by voluntary or on superannuation. The principles for payment of pension will not vary on the basis of these distinctions. According to us, “afternoon of 31st of March” or “forenoon of 1st April” means one and the same thing and on this basis also we wee no reason to hold that the said case is not applicable to the present cases. In short, we are of the view that in the present cases the effective date of retirement would be 01.04.1995. For the foregoing reasons, our answer to the question before this Full Bench is as follows: - 10 - A Government servant completing the age of superannuation on 31.03.1995 and relinquishing charge of his office in the afternoon of that day is deemed to have effectively retired from service with effect from 01.04.1995.” The Court approves the reasoning of the Central Administrative Tribunal. 9. The matter is required to be considered from another angle. In sequel to the representation made by the original petitioner, matter was taken-up by respondent No.2 with respondent No.3. Respondent No.3 has informed the respondent No.2 on 25.7.2000 that the judgment of the Central Administrative Tribunal was not applicable to the employees of the State Government and the matter was required to be sent to the Finance Department. Respondent No.2 in his own wisdom instead of referring the matter to the Finance Department came to an abrupt conclusion that the original petitioner was not entitled to the pension on the basis of Annexure A-6 dated 15th May, 1997. The decision of respondent No.2 was erroneous. It is true that the ratio of the judgment of Central Administrative Tribunal was not applicable to the employees of Himachal Pradesh State Government per se; however, respondent No.2 was bound to take into consideration the ratio and reasoning of the judgment rendered by the learned Central Administrative - 11 - Tribunal. The Central Administrative Tribunal has given a well reasoned judgment while deciding the issue. 10. No other point was urged. 11. Accordingly, in view of the observations made hereinabove, the writ petition is allowed. Annexure A-10, dated 17.8.2000 is quashed and set aside. The original petitioner will be deemed to have retired from service with effect from 1.4.1995 and the present petitioners are held entitled to the benefits of additional gratuity as per office memorandum dated 15th May, 1997. The amount due shall carry interest @ 9% on this amount. Needful be done by the respondents within a period of ten weeks from today. There shall, however, be no order as to costs. (Rajiv Sharma) Judge. May 20, 2010. (sck).