UNION OF INDIA ASSISTANT DIRECTOR GENERAL PEN ADK BHAVAN MINISTRY OF COMMUNICATION DEPARTMENT OF POSTS NEW DELHI Vs. S SUBBIAHMANI

JUDGEMENT

(1.) HEARD Mr.G.K.R.Pandian, Senior Central Government Standing Counsel for the petitioners and Mrs.R.Thenmozhi Shiva Perumal for Respondent No.1.

(2.) THE date of birth of respondent No.1 is 10.12.1937. He retired as Post Master on 31.12.1995, even though he completed the age of 58 on 10.12.1995 by virtue of the provisions contained in Rule 56 of the Fundamental Rules. Respondent No.1 filed Original Application No.1082 of 2002 before the Central Administrative Tribunal, Madras Bench contending that since he was in service on 31.12.1995, it must be deemed that he had retired with effect from 1.1.1996 and therefore, he was entitled to the pension as per the recommendation of the V Pay Commission report, which was made applicable to the persons, who were in service as on 1.1.1996. THE Tribunal accepted the contention of respondent No.1 by relying upon a Full Bench decision of the Central Administrative Tribunal, Mumbai in Venkatram Rajagopalam and another Vs. Union of India and others, reported in 2000 (1) A.T.J 1. In an unreported Division Bench decision of the Karnataka High Court in W.P.No.18186 of 2003 dated 8.12.2003 (Union of India Vs. YNR Rao), a similar question had cropped up for decision, wherein, the Tribunal by relying upon the very same Full Bench decision of the Central Administrative Tribunal, Mumbai reported in 2000(1) ATJ 1, had granted the relief to the persons, who had retired on 31.12.1995. THE Division Bench speaking through Justice R.V. Raveendran, (as his Lordship then was), specifically observed that the Full Bench decision of the Mumbai Central Administrative Tribunal, had not correctly laid down the position of law. It was observed in the said decision as follows: "4. Rule 56 of the Fundamental Rules deals with retirement, Clause (a) of Rule 56 of the Fundamental Rules provides that except as otherwise provided in the said Rule, every government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of superannuation. THE proviso to Clause (a) of Rule 56 of the Fundamental Rules provides that a government servant whose date of birth is the first of a month shall however retire from service on the afternoon of the last day of the preceding month on attaining the age of retirement. Having regard to Rule 56 of the Fundamental Rules, the retirement of a government servant is always from the afternoon of the last day of the month and not at the end of the last day of the month. 5. But for the provisions of Rule 56 of the Fundamental Rules, 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 Rule 56 of the Fundamental Rules was introduced in the year 1973-74 for accounting and administrative convenience. What is significant is the proviso to Clause (a) of Rule 56 of the Fundamental Rules 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 servant 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 Central Administrative Tribunal, 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 Central Administrative Tribunal that a government servant retiring on the afternoon of 31st March is to be treated as retiring with effect from the first day of April, that is same as retiring on the forenoon of first day of April, is not good law. 6. Rule 5(2) of the Central Civil Services (Pension) Rules provides that the day on which a government servant retires from service shall be treated as his last working day. Rule 3(o) defines 'pension' as including gratuity except where the term 'pension' is used in contradistinction to gratuity. Rule 5(1) provides that any claim for pension (or gratuity) shall be regulated by the provisions of Central Civil Services (Pension) Rules in force at the time when a government servant retires from service. A combined reading of these clauses makes it clear that the date of retirement is the last date of the month in which the government servant retires and the retirement gratuity is to be calculated as per Rules in force on that date. As the respondent retired on 31-3-1995, his entitlement to gratuity will be governed by the Pension Rules as on 31-3-1995. As per Rule 50 as it stood on 31-3-1995, the maximum amount payable as retirement gratuity of Rs.1,00,000/- and therefore the Department was justified in paying only Rs.1,00,000/- to the respondent." (Emphasis added by us)

(3.) IN such view of the matter, the order passed by the Tribunal cannot be sustained and the writ petition is bound to succeed and the writ petition is allowed. The order passed by the Central Administrative Tribunal, Madras Bench in O.A.No.1082 of 2002 is accordingly set aside and O.A.No.1082 of 2002 is dismissed. It goes without saying that the Department shall settle the dues of respondent No.1 in accordance with law. However, there is no order as to costs. Consequently, the connected W.P.M.P.No.13829 of 2004 is closed.