Allahabad High Court
Ram Anjore Singh S/O Late Jagannath ... vs Union Of India (Uoi) Through The ... on 6 July, 2007
Bench: Anjani Kumar, Sudhir Agarwal
JUDGMENT
Anjani Kumar and Sudhir Agarwal, JJ.
1. The writ petition is directed against the order dated 30th June, 2003, passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad (hereinafter referred to as 'the Tribunal'), whereby the Tribunal has disposed off Original Application No. 1076 of 200 filed by the petitioner. He has also sought a writ of mandamus commanding the respondents to pay him revised pay scale as per Government of India's office memorandum dated 27th October, 1997 by not treating him as pre-1996 pensioner and to pay all consequential benefits like arrears of commuted pension, leave encashment, group insurance etc.
2. The brief facts of the present case as emerged from the pleadings of the writ petition are that the petitioner was appointed as Upper Divisional Clerk (Auditor) on 12th September, 1962 and was promoted from time to time on various higher posts. While working as senior audit officer, he attained the age of superannuation in the afternoon of 31st December, 1995, his date of birth being 1st January, 1938. He claimed that he was entitled to be treated as retired on 1st January, 1996, therefore should be given benefit of revised pay scale and fixation of pension in the revised pay scale as provided in the office memorandum dated 27th October, 1997, but the respondents treating him as having retired on 31st December, 1995 did not provide such benefits. The petitioner was treated as pre-1996 pensioner and has been giving pensionary benefits accordingly, though he claimed that he was entitled to be treated as 1996 pensioner having retired on 1st January, 1996 and was entitled for all consequential benefits accordingly. Claiming the said benefits, he approached the Tribunal in Original Application No. 1076 of 2001. The Tribunal has disposed off the Original Application by observing that though the Full Bench of the Tribunal (Mumbai camp at Nagpur) in Venkatram Rajagopalan and Anr. v. Union of India and Ors. has held that "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, hence would be entitled to the benefits which commences with effect from 01.04.1995", however, the said matter came up for consideration before the Mumbai High Court and therefore the Original Application was disposed off with the direction that in case Mumbai High Court upheld the said decision, the benefit shall also be extended to the petitioner.
3. We have heard learned Counsel for the parties and perused the records.
4. Learned Counsel for the petitioner submitted that the dispute before the Tribunal at Mumbai was not exactly the same as is involved in the Original Application filed by the petitioner before the Tribunal, inasmuch in Mumbai High Court the question involved was whether a petitioner retired on 31st December, 1995 'afternoon' shall be deemed to be retired on 31st December, 1995 or 1st January, 1996. Considering the meaning of the word 'afternoon', it was held that he would actually retire on 1st January, 1996 and not on 31st December, 1995. Here learned Counsel submits that the office memorandum in the present case provides that the revised provision as per the said orders shall be applicable to the government servants who retire/die in harness on or after 1st January, 1996. He further submits that he was in service till 31st December, 1995 since his age is 1st January, 1938, and thus he completed 58 years of age on 31st December, 1995, therefore was allowed to retire on 31st December, 1995, but in fact his effective date of retirement would be 1st January, 1996, since he was in service up to 31st December, 1995. Thus he should be deemed to have retired on and alter 1st January, 1996. He placed reliance on a Division Bench judgment of Andhra Pradesh High Court in Union of India and Ors. v. R. Malakondaiah and Ors. 2002 L.A.B.I.C. 1401.
5. Learned Standing Counsel appearing on behalf of respondents, on the other hand, contended that the petitioner having retired on 31st December, 1995 is not entitled for the benefit of the office memorandum dated 27th October, 1997 and the representation of the petitioner for claiming the said benefit has rightly been rejected by the authorities concerned, as the petitioner is not entitled for any relief.
6. The question which is to be considered in this writ petition is whether the petitioner is entitled to get advantage of the office memorandum dated 27th October, 1997, para 3.1 which provides that the benefit thereof shall be applicable to such government servants who retire/die in harness on or after 1st January, 1996. The matter can be considered from two angles i.e. the petitioner's date of birth being 1st January, 1938 and the date of retirement under Fundamental Rule 1956 being 58 years, the first question would be as to on which date he would attain and complete 58 years of age. It appears that a general misconception is that a person attains a particular age on the date on which he is born. The correct position is that in the absence of an express provision the specified age in law has to be computed as having been attained on the day preceding anniversary of his birthday. This issue has been considered earlier also and is no more res integra.
7. In Halsbury's Laws of England, 3rd Edition, Vol. 37, para 178 at page 100 the law on the subject has been stated as under:
In computing a period of time, at any rate when counted in years or months no regard is, as a general rule, paid to fractions of a day, in the sense mat the period is recorded as complete although it is short to the extent of a fraction of a day...similar, in calculating a person's age the day of his birth counts as a whole day, and he attains a specified age on the day next before the anniversary of his birthday.
8. It was also considered in an English decision. In Re Shurey Savory v. Shurey LR (1910) 1 Ch. 263 where the question came up for consideration was: does a person attain a specified age in law on the anniversary of his or her birthday or on the day preceding that anniversary. It was held that law does not take cognizance of part of a day and the consequence is that person attains required age on the day preceding the anniversary of his birthday. The same view is taken in another English case in Rex v. Scoffin LR (1930) 1 KB 741.
9. Probably the legislature recognizing the aforesaid principle expressly provided in Section 4 of Indian Majority Act, 1875 criteria for computation of age of majority. Section 4 of the Act of 1875 reads as under:
4. Age of majority how compute : In computing the age of any person, the day on which he was born is to be included as a whole day, and he shall be deemed to have attained majority, if he fails within the first paragraph of Section 3, at the beginning of the twenty-first anniversary of that day, and if he falls within the second paragraph of Section 3, at the beginning of eighteenth anniversary of that day.
10. A Division Bench of Hon'ble Mysore High Court in AIR 1967 Mysore 135 G. Vatsala Rani v. Selection Committee has also taken the same view and has observed as under:
But in the absence of any such express provision, we think, it is well settled that any specified age in law has to be computed as having been attained or completed on the day preceding the anniversary of the birth day, that is, the day preceding the day of calendar corresponding to the day of birth of the person.
11. The apex Court approved the aforesaid principle in Prabhu Dayal Sesma v. State of Rajasthan and Anr. AIR 1988 SC 1948 and held as under:
In calculating a person's age, the day of his birth must be counted as a whole day and he attains the specified age on the day preceding the anniversary of his birthday.
12. The same view has been taken by a Division Bench of this Court in Special Appeal No. (221) of 2004 Achhaibar Maurya v. State of U.P. and Ors., decided on 8th September, 2006. The petitioner born on 1st January, 1938 would complete 58 years of age on 31st December, 1995 and cannot continue beyond that date, Therefore, the contention of the petitioner that he would attain the age of 58 years on 1st January, 1996 cannot be accepted.
13. However, the matter does not come to rest here. The Government of India issued office memorandum dated 27th October, 1997 with an objective to implement the recommendations of Fifth Central Pay Commission. The first office memorandum being no. 45/86/97-P.& P.W. (A) - Part-1, dated 27th October. 1997 (hereinafter referred to as "O.M.I") is on the subject of implementation of Government decision on the recommendations of Fifth Central Pay Commission--Revision of provisions regulating pension/commutation of pension. Para 3.1 and 3.2 of the said O.M. 1 provides the dates for giving effect to the said order and reads as under:
3.1. The revised provisions as per these orders shall apply to Government servants who retire/die in harness on or after 1.1.1996. Separate orders will be issued in respect of employees who retired/died before 1.1.1996.
3.2. Where pension/family pension/DCRG/ commutation of pension has already been sanctioned in cases occurring on or after 1.1.1996, the same shall be revised in terms of these orders. In cases where pension has been finally sanctioned on the pre-revised orders and if it happens to be more beneficial than the pension becoming due under these orders, the pension already sanctioned shall not be revised to the disadvantage of the pensioners in view of the Rule 70 of the CCS (Pension) Rules, 1972.
14. The second office memorandum was also issued on the same day i.e. 27th October, 1997 and is numbered as 45/86/97-P&PW (A)-Part II and contains subject as implementation of Government's decision on the recommendations of the Fifth Central Pay Commission--Revision of pension of pre-1996 pensioners/family pensioners etc. (hereinafter referred to "O.M. II"). Para 2.1 of O.M. II provides that the said order shall apply to to all pensioners/family pensioners who were drawing pension or family pension on 1st January, 1996 under the Central Civil Services (Pension) Rules, 1972, CCS (Extraordinary Pension) Rules and the corresponding rules applicable to Railway pensioners and pensioners of All India Services, including officers of the Indian Civil Services, retired from service on or after 1st January, 1973. Para 3.1 (1), (b) and (c) thereof defines "existing pensioner" or "existing family pensioner" and "existing pension" or "existing family pension" and reads as under:
3.1 In these orders:
(a) 'Existing Pensioner' or 'Existing Family Pensioner' means a pensioner who was drawing/entitled to pension/family pension on 31-12-1995.
(b) 'Existing Pension' means the basic pension inclusive of commuted portion, if any, due on 31-12-1995. It covers all classes of pension under the CCS (Pension) Rules, 1972 as also Disability Pension under the CCS (Extraordinary Pension) Rules and the corresponding rules applicable to Railway employees and Members of All India Services.
(c) 'Existing Family Pension' means the basic family pension drawn on 31-12-1995 under the CCS (Pension) Rules and the corresponding rules applicable to Railway employees and Members of All India Services.
15. Which of the aforesaid O.Ms. would be attracted to the case of the petitioner would depend upon the fact as to when the petitioner can be said to have retired from service. From a perusal of O.M. I, it is evident that the same is applicable to such government servants who retire on 1st January, 1996 or thereafter. The O.M. II, however provides that the pension/family pension shall be determined in the manner prescribed there under to all pre-1996 pensioners/family pensioners in the manner indicated in the subsequent paragraphs. Though para 2.1 states that the order shall be applicable to all those who were drawing pension/family pension on 1st January, 1996, but from the definition of the existing pensioner or existing family pensioner or existing pension or existing family pension, it would be evident that the said order is applicable to those who were drawing/entitled to pension on 31st December, 1995 and therefore were also drawing pension on 1st January, 1996. Thus only such persons can be said to be pre-1996 pensioners/family pensioners. The question as to whether the petitioner can be said to be a pre-1996 pensioner/family pensioner, in order to attract the meaning of the word "government servants who retired on 1st January, 1996". In other words can it be said that the petitioner retired on 31st December, 1995 and is also an existing pensioner on 31st December, 1995. It is no doubt true that 31st December, 1995 was the last day of working of the petitioner on which date he would retire on attaining the age of superannuation as per Fundamental Rule 56, which requires that a government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of 58 years. Since the petitioner attains the age of 58 years on 31st December, 1995 itself, therefore he will retire in the afternoon of 31st December, 1995. The word afternoon would mean up to midnight of 31st December, 1995/1st January, 1996. It is true that normally on the last day of the working a government servant is required to handover his charge and work is complete during office hours, but legally the status of the concerned person would continue to be a "government servant" till the midnight of the last working day, since the afternoon would come to an end at 12.00 P.M. i.e. end of the day. A Division Bench of this Court in Special Appeal No. 1056 of 2005 Sushila Devi v. District Collector and Ors., decided on 6th September, 2005, held as under:
From the foregoing discussions, we are of the opinion that for purposes of retirement of a government servant, the time afternoon has to be construed as a time after the noon (12 O' clock) till the end of the day (12 P.M.).
16. The 31st December, 1995 being the last working day, the petitioner was also entitled for full salary of the said day, which is also inconsonance with Rule 5(2) of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as "Pension Rule 1972"), which reads as under:
5(2) The date on which a government servant retires or is retired or has discharged or is allowed to resign from service, as the case may be, shall be treated as his last working day. The day of death shall also be treated as working day.
Provided that in the case of a government servant, who is retire or immediately to retire or who retires voluntarily under clause (j) to (m) to Rule 56 of Fundamental Rule or Rule 48 (or Rule 48-A), as the case may be, the date of retirement shall be treated as a non working day.
17. This results to an inference that the last working day in the service of the government servant is also the date of his retirement, but it cannot be said that the said government servant would, be entitled for pension on 31st December, 1995 and therefore is an existing pensioner or existing family pensioner on 31.12.1995. For the purposes of pension, he would be entitled to draw the same w.e.f. 1st January, 1996 and not prior thereto. The O.M. I is applicable to those who are not pre-1996 pensioners/family pensioners since they are governed by O.M. II. Since the petitioner cannot be said to be a pre-1996 pensioner/family pensioner, therefore in our view his case will be covered by O.M. I. It is not the case of the respondents that besides the aforesaid two office memorandums, there is any other office memorandum, which would be applicable to the cases which are not covered by the aforesaid two office memorandums. The view which we have taken has not been shown to be in consisted to any statutory provision and on the other hand since O.M. II is clearly applicable to pre 1996 pensioner/family pensioner, and the petitioner cannot be said to be a pensioner on 31st December, 1995 since that being the last working day and he being entitled for full salary, he would not be entitled for pension on 31st December, 1995, therefore the O.M. II has no application to his case, the same would have to be governed by O.M. I.
18. In this view of the matter, in our view, for the purposes of para 3.1 of O.M. I, the petitioner is entitled to be governed by the provision thereof as he retired on 1st January, 1996. The provision of OM-I, being beneficiary in nature, in the absence of any contrary, express or necessary implication, it should be given a meaning which may cover a larger number of persons without doing any violence to the language of the Statute. The judgment of Andhra Pradesh High Court in the case of R. Malakondaiah and Ors. (supra) relied upon by learned Counsel for the petitioner, in our view does not apply to the facts of the present case, since the issue involved therein was different and the provision up for consideration before the Andhra Pradesh High Court was also in different context. That was a case of increment of a government servant and interpreting Article 151 CSR, the Andhra Pradesh High Court held that a government servant is entitled for the benefit of increment after completion of the conditions attracting said benefit, even if the same day of his last day of the working, since actual grant thereto is only in the nature of execution.
19. In view of the aforesaid discussions, we of the considered view that the petitioner is entitled for revised pay scale and fixation of his pay as per the notification dated 27th October, 1997 i.e. OM-I (Annexure-'2' to the writ petition) and the respondents are directed to fix his pension and other consequential benefits accordingly and pay the same to the petitioner within a period of three months from the date of presentation of a certified copy of this order.
20. In the result, the writ petition succeeds and is allowed with the aforesaid direction.