Supreme Court of India

State Of U.P vs U.P. University Persioners Assn on 28 February, 1994

Equivalent citations: 1994 AIR 2311, 1994 SCC (2) 729, AIR 1994 SUPREME COURT 2311, 1994 (2) SCC 729, 1994 AIR SCW 2245, 1994 (1) UJ (SC) 596, (1994) 2 SCR 171 (SC), 1994 (2) SCR 171, 1994 (2) UPLBEC 1067, (1994) 2 JT 569 (SC), 1994 UJ(SC) 1 596, 1994 SCC (L&S) 747, (1994) 1 ALL WC 625, (1994) 1 CURLR 982, (1994) 27 ATC 179, (1994) 2 UPLBEC 1067, (1994) 3 SCT 659, (1994) 2 LAB LN 362, (1994) 2 SCJ 177, (1994) 2 SERVLR 4, (1995) 2 LABLJ 72

Author:
B.L Hansaria

Bench:
B.L Hansaria
,
K. Ramaswamy

PETITIONER:
STATE OF U.P.

Vs.

RESPONDENT:
U.P. UNIVERSITY PERSIONERS ASSN.

DATE OF JUDGMENT28/02/1994

BENCH:
HANSARIA B.L. (J)
BENCH:
HANSARIA B.L. (J)
RAMASWAMY, K.

CITATION:
1994 AIR 2311 1994 SCC (2) 729
JT 1994 (2) 569 1994 SCALE (1)744

ACT:

HEADNOTE:

JUDGMENT:

The Judgment of the Court was delivered by
HANSARIA, J.- Leave granted.

2. The State of Uttar Pradesh formulated a new scheme of
pension and provident fund for the employees of Aided Degree
Colleges of the State. This was made effective by
Government Order (G.O.) dated August 24, 1980. This G.O.
came to be issued on the demand of the teachers of various
aided educational institutions including Degree Colleges for
better terminal benefits like pension and death-cum-
retirement gratuity. One of the points urged in support of
the claim was' that similarly situated teachers in
Government Colleges were better off in this regard and there
was no reason to treat the other teachers differently. It
was urged that the two categories of teachers being
similarly situated the difference was discriminatory as
well. It however deserves notice at the threshold itself
that the retirement age of aided colleges teachers was (and
is) 60 years, whereas in Government
Colleges the retirement age is 58 years which is at par with
the retirement age of other Government servants.

3. The G.O. made available two packages leaving it to the
teachers concerned to opt for one of these. One option was
to retire at the age of 60 years in which case pension as
available to Government Colleges teachers would be
available; so also general provident fund. They would not
however get gratuity. Those who would opt to retire at 58
years would get death-cum-retirement gratuity also along
with aforesaid two benefits; so too family pension.

4. It seems that most of the members of the U.P.
University Colleges Pensioners' Association, respondent
here, for short the Association, opted for first package.
They have however felt aggrieved at the denial of gratuity;
so also with computation of pension by taking the last pay
drawn on completion of 58 years even though they continued
(and continue) in service till completion of 60 years. The
Association challenged the aforesaid G.O. on these counts
before the High Court of Allahabad. Some grievance was also
made at the denial of commutation of pension which facility
was made available by G.O. dated December 19, 1988 making it
effective from August 14, 1988. The Association desired
making available of this facility even to the retirees prior
to August 14, 1988.

5. The High Court has directed the State to give the
benefit of pension on the last emoluments drawn at the age
of 60 years and also to make available the benefit of
gratuity. Another direction given is to give benefit of
commutation to the teachers who had retired prior to August
14, 1988. Feeling aggrieved, the State has approached this
Court under
Article 136
of the Constitution.

6. Shri Yogeshwar Prasad, learned senior standing counsel
for the State, contends that by no token the teachers of
aided colleges could have been placed in better situation
than the teachers of Government Colleges; but this is effect
of the judgment of the High Court inasmuch as the aided
colleges teachers would, even while retiring age the age of
60 years, get pension on the basis of the last pay drawn, so
also gratuity whereas the Government College teachers would
retire at the completion of 58 years of age and their
pension would be calculated accordingly. Another submission
made in this regard is that members of the Association
having opted for the first package it does not lie in their
mouth to resile from the terms of the package. Learned
counsel rightly submits that one cannot blow hot and cold at
the same time; or approbate and reprobate simultaneously.
There being two packages, a third package could not have
been formulated by the High Court giving best of the terms
of the two packages. It is finally contended that insofar
as denial of gratuity is concerned no grievance can be made
by the Association inasmuch as aided colleges teachers whose
age of retirement is 60 years cannot be said to be similarly
situated to Government teachers who retire at the age of 58
years. The denial cannot be said to be discriminatory
according to the learned counsel. As to the grant of
benefit of commutation to the pre-
August 14, 1988 retirees, the submission is that this
facility having been brought into existence with effect from
August 14, 1988, those had retired before that could not
have been given the benefit, as commutation of pension can
be made only before one retires.

7. Shri Jain appearing for the respondent-Association
contends that the members of the Association having been
allowed to continue till the age of 60 years, the
determination of pension on the basis of the last pay drawn
on completion of 58 years is incongruous and irrational. It
has also been urged that though the first package qua the
aided colleges teachers required computation of pension on
the basis of salary drawn at the age of 58 years, teachers
of aided higher secondary school, even though they also
retire at the age of 60 years, have been permitted to get
their pension computed on the basis of the salary last
drawn. This is discriminatory urges Shri Jain. As to the
denial of gratuity to the first optees, the learned counsel
submits that gratuity being a part of pension, as held by a
Bench of this Court in
Jarnail Singh v. Secretary, Ministry
of Home Affairs
' the same could not have been denied while
making available liberalised pension.

8. Insofar as his submission relating to the basis of
computation of pension, we would observe that in principle
we do not find any objection in computing the pension on the
basis of last pay drawn at the age of 58 years. This is for
the reason that demand of the Association being basically
grounded on the better pensionary benefit available to
Government teachers, the State was amply justified, while
considering the question of liberalising the pension qua the
aided teachers, to peg the computation of pension with
reference to the pay at the age of 58 years, which is the
retirement age of Government teachers. This apart, as to
how much of liberalisation should have been conceded is a
matter of policy and if the Government decided to go as far
as visualised by the G.O. of April 28, 1980, it is not open
to any court to interfere with the same, as the policy
contained in the G.O. cannot be said to be either
unreasonable or against public interest, which are the only
two grounds available to a court to interfere with a policy
matter while reviewing the same judicially.

9. There is, however, force in the submission of Shri Jain
that there exists no rational basis for treating teachers of
aided higher secondary school and teachers of aided colleges
differently for the purpose of computation of pension,
inasmuch as teachers of aided school also retire at the age
of 60. On this point being urged by Shri Jain when the case
was taken up for hearing on January 21, 1994, we wanted the
State counsel to apprise us whether the submission is
correct and to file necessary rules holding the field.

10. Pursuant to the order of January 21, 1994 an additional
affidavit verified on February 4, 1994 was filed. We have
perused this affidavit which, however, does not contain
extract of any rule. What has instead been brought on
record is a document bearing letter No. 5310/fifteen-8-
304(2)/1974, dated March 31, 1978. This document shows that
teachers of
1 (1993) 1 SCC 47: 1993 SCC (L&S) 1 19: (1993) 23 ATC 642
aided higher secondary school get pension as given to the
same rank and class of Government school teachers and the
calculation is as per the procedure" applicable to
Government employees. This document has an annexure which
speaks about the rate of pension. Shri Yogeshwar Prasad has
drawn our attention to this annexure as per which after 32
years of service, the pension amount becomes stagnant.

11. The affidavit is silent on the question whether the
pension payable to teachers of aided higher secondary school
is being calculated on the basis of last pay drawn at the
age of 60 years. So, we asked Shri Yogeshwar Prasad to
state the correct factual position. Learned counsel stated
that the correct position is that pension is being
calculated as per the last pay drawn at the age of 60 years.
He, however, brought to our notice the statement in the
additional affidavit that these teachers are not entitled to
payment of gratuity. He, therefore, urged that members of
the Association cannot get benefit of both gratuity and
computation of pension on the basis of last pay drawn at the
age of 60 years.

12. We do find force in the aforesaid contention of Shri
Yogeshwar Prasad. We have also noted that though the
Government teachers get gratuity they retire at the
completion of 58 years of age. Confronted with this
situation, Shri Jain submitted that if we would not be
inclined to grant benefit of both gratuity and calculations
of pension on the basis of the last pay drawn on attaining
the age of 60 years, the Association would rather forego
gratuity and would opt for pension to be calculated as in
the case of teachers of higher secondary schools.

13. Before we express our views on the aforesaid matter, we
would deal with the submission of Shri Jain that gratuity
has to be taken as a part of pension, to support which
contention our attention has been invited to this Court's
judgment in
Jarnail Singh
case'. Perusal of that judgment
shows that gratuity was taken to be a part of pension
because of the definition of "pension" as given in clause

(o) of sub-rule (i) of Rule 3 of Central Civil Services
(Pension) Rules, 1972. It is because of this definition
that the case of
D. V. Kapoor v. Union of India2
in which it
had been held that gratuity was not a part of pension, was
not followed, as the Bench which decided that case had not
been referred to the aforesaid definition of pension.

Similar observation was made in Jarnail Singh case'
regarding
F.R. Jesuratnam v. Union of India3
wherein also
gratuity was not regarded as part of pension without noting
the abovenoted definition.

14. To buttress his aforesaid submission, Shri Jain also
refers to clause (17) of
Article 366
of the Constitution
which has defined pension to include gratuity. Merely
because what has been stated in clause (17) it cannot be
held that gratuity has to be taken always and for all
purposes as part of pension, because this definition
apparently has enlarged the meaning of the word "pension" by
stating that this would include gratuity. It is well known
2 (1990) 4 SCC 314: 1990 SCC (L&S) 696: (1990) 14 ATC 906
3 1990 Supp SCC 640: 1990 SCC (L&S) 370: (1991) 16 ATC 540
that legislature very often wants to give enlarged meaning
to a particular word and this is done by stating that the
defined word would include some named related subjects also.

15. We, therefore, state that either because of what was
stated in
Jamail Singh
case' or the way "pension" has been
defined in the Constitution, it cannot be held that pension
and gratuity are conceptually same, as stated in paragraph 9
of
Jarnail Singh
case' to which our attention is invited by
Shri Jain. According to us, this Court took the view in
question in Jarnail Singh because of the definition of the
word "pension" in the concerned rule; otherwise, what was
held in D. V. Kapoor2 and F.R. Jesuratnam3 cases seem to be
correct legal position.

16. Before concluding, we may deal with the grievance of
the State regarding that part of High Court's judgment by
which commutation benefit was made available to those
teachers who had retired prior to August 14, 1988. In this
context, Shri Yogeshwar Prasad has rightly submitted that
the benefit of commutation having been made available for
the first time by G.O. of December 19, 1988, making it
effective from August 14, 1988, the direction to give this
benefit to those who had retired before August 14, 1988 was
erroneous and unreasonable also. This is for the simple
reason that commutation of pension can be resorted to before
one retires and not afterwards.

17. Keeping in view all the above, we dispose of the appeal
by stating that pension of aided college teachers who had
opted for the first package of G.O. dated August 24, 1980
would be determined on the basis of the last pay drawn by
them as on their retirement at the age of 60 years and the
calculation would abide what has been stated in the annexure
to the aforesaid Government letter dated March 31, 1978; but
that part of the High Court's order by which the State was
directed to make available benefit of gratuity also to these
optees stands annulled. This would put the teachers at hand
at a footing which is equal to that of aided secondary
school teachers. That part of the High Court's order by
which benefit of commutation was ordered to those teachers
who had retired before August 14, 1988 is also set aside.

18. On the facts and circumstances of the case, we make no
order as to costs.