Case: K. L. Rathee Vs. Union Of India &amp; Ors

"5(1) Any claim to pension or family pension shall be regulated by the provisions of these rules in force at the time when a Government servant retired or is retired or is discharged or is allowed to resign from service or dies, as the case may be." 7. The average of the last ten months emoluments must form the basis for calculation of pension. That means those who were actually drawing larger emoluments in the last ten months of their service will get larger amounts of pension. Nakaras case does not lay down that the same amount of pension must be paid to all persons retiring from Government service irrespective of the date of retirement. The contention of the petitioner that there is only one class of Government employees for the purpose of calculation of pension cannot be disputed. The Constitution Bench in Nakaras case has clearly laid down that there cannot be any mini-classification of Government servants for calculating the amount of pension payable. That means the same method should be adopted for calculating pension for all Government servants. But the question is what should be the quantum of pension payable to a Government servant ? Even if pension is calculated on the basis of the same formula, the basis of calculation has to be the average of the last ten months emoluments. This principle of adopting last ten months emoluments as the basis for calculation of pension must be uniformly applied to all persons drawing pension from the Central Government. This was all that was laid down in Nakaras case. It, however, did not lay down that the quantum of emoluments drawn during the last ten months of service of each Government employee must be taken to be the same for this purpose. 8. This aspect of the question was examined in the case of Indian Ex- Services League and others etc. v. Union of India and others, etc.,, 1991(1) SCR 158 : 1991(1) SCT 468 (SC). The case was argued on behalf of Armed Forces personnel retiring from commissioned ranks as well as Armed Forces personnel retiring from below the commissioned rank who were represented by Shri K.L. Rathee. J.S. Verma, J. (As His Lordship, then was) speaking for the Constitution Bench which heard the matter observed that the contention of the writ petitioners on the basis of Nakara decision was untenable. On behalf of the petitioners, it had been contended that all retirees who held the same ranks irrespective of their date of retirement must be given the same amount of pension. In effect, what was urged was that there must be "one rank one pension" for all the retirees irrespective of their date of retirement. This contention of the petitioners was rejected by the Constitution Bench by holding that Nakaras decision was of limited application. There was no scope for enlarging the ambit of that decision to cover all claims made by the petitioners for identical amount of pension to every retired person from the same rank irrespective of the date of retirement, even though the reckonable emoluments for the purpose of computation of pension were different. 9. In fact, the principle laid down in the case of Indian Ex-services League and others (supra) negates the case of the petitioner in the instant case. Nakaras case does not lay down that the last ten months emoluments must be deemed to be the same for all the employees at the time of their retirement. The emoluments have to be calculated according to the Government rules in force at the time of retirement of the employees. But, if the principle of average of last ten months emoluments has been adopted for some employees, then that principle must be extended to all the employees who have retired before them. Nakaras case did not lay down that the reckonable emoluments for the purpose of calculation of pension must be the same for a person occupying the same post. 10. It is also to be noted that the case of Krishena Kumar v. Union of India and others, AIR 1990 SC 1782 , another Constitution Bench examined the question whether on the strength of Nakaras case, petitioners were entitled to the same Provident Fund benefits as were given to those who retired subsequent to 31st March, 1979. It was argued on behalf of the petitioner that States obligation towards pensioners was the same as that towards persons who were to be paid Provident Fund benefits. This Court held that that was not the ratio of Nakaras case. On retirement of an employee, legal obligation under the Provident Fund account ended on payment of the Provident Fund dues of the employee. The Rules governing Provident Fund and contribution to such Fund were entirely different from the rules governing pension. 11. It was also held in the case of Union of India v. All India Services Pensioners Association and another, AIR 1988 SC 501 , that the principles laid down in Nakaras case could not be extended to the case of payment of gratuity. 12. It clearly appears from all these cases that Nakaras case is not a case of universal application irrespective of the facts and circumstances of the case. When the Government decided that pension was to be calculated on the basis of average salary drawn over a period of last ten months, it was held in Nakara, that this principle has to be applied even to those persons who had retired before the notified date. That, however, does not mean that the emoluments of the persons who were retiring after the notified date and those who have retired before the notified date holding the same status must be treated to be the same. This argument was specifically negatived by the Constitution Bench in the case of All India Services Pensioners Association (supra). What the petitioner is claiming in this case is more or less the same relief as was denied to him in the above case. 13. In vie

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]6. We are unable to uphold this contention. Nakaras case (supra) dealt with the manner of calculation of pension on the basis of average emoluments of a retired Government employee. Prior to the liberalisation of the formula for computation of pension made by the memorandum dated 25th May, 1979, average emoluments of the last thirty months of service of the employee provided the basis for calculation of pension. The 1979 memorandum provided that average emoluments must be calculated on the basis of the emoluments received by a Government servant during the last ten months of the service. That apart, a new slab system for computation of pension was introduced and the ceiling on pension was raised. As a result of these changes, the pensioners who retired prior to the specified date suffered triple jeopardy, viz., lower average emoluments, absence of slab system and the lowerview of the aforesaid, this writ petition must fail and is dismissed with no order as to costs.