M MOHAMED NOOR HAJA Vs. SECRETARY TO GOVERNMENT

JUDGEMENT

(1.) THE two petitioners have filed O.A.Nos.2348 and 2349 of 2004, seeking for a direction to grant pension on the basis of G.O.No.461 Finance (Pension) Department dated 31.07.1996 and G.O.488 Finance (Pension) Department dated 12.08.1996, wherein and by which the pensioners were given pensionary benefits on the basis of 50% of the last pay drawn to them.

(2.) ACCORDING to the petitioners, though they had retired on 30.06.1996, actually it should be calculated as if they were retired on 01.07.1996. Inspiration was also drawn from the order passed by the Central Administrative Tribunal (CAT), Mumbai Bench in O.A.Nos.459 and 460 of 1997 by its order dated 15.10.1999, where similar interpretation was given.

(3.) IN any event, at the time of filing of the affidavit, the second respondent may not be aware that the judgment of the CAT, Bangalore Bench was held to be wrong by the Karnataka High Court vide its decision in Union of INdia and Others v. Y.N.R.Rao in W.P.No.18186 of 2003 (S-CAT) dated 08.12.2003. IN paragaph 5 of the judgment, the Division Bench of Karnataka High Court presided by R.V.Raveendran,J. (as he then was) held as follows: "5.But for the provisions of FR 56, which provides that a Government Servant shall retire from service on the afternoon of last date of the month in which he had attained the age of 58 years, the respondent, who was born on 9.3.1937 would have retired on 8.3.1995. The provision for retirement from service on the afternoon of the last date of the month in which the Government Servant attains the age of retirement instead of on the actual completion of the age of retirement in FR 56 was introduced in the year 1973-74 for accounting and administrative convenience. What is significant is the proviso to clause (a) of FR 56 which provides that an employee whose date of birth is first of a month, shall retire from service on the afternoon of the last date of the preceding month on attaining the age of 58 years. Therefore, if the date of birth of a government is 1.4.1937 he would retire from service not on 30.4.1995, but on 31.3.1995. If a person born on 1.4.1937 shall retire on 31.3.1995, it would be illogical to say a person born on 9.3.1937 would retire with effect from 1.4.1995. That would be the effect, if the decision of the Full Bench of the CAT, Mumbai, is to be accepted. Therefore a government servant retiring on the afternoon of 31.3.1995 retires on 31.3.1995 and not from 1.4.1995. We hold that the decision of the Full Bench (Mumbai) of the CAT that a government servant, retiring on the afternoon of 31st March is to be created as retiring with effect from the first day of April, that is same as retiring on the forenoon of first of April, is not good law."