LexSTATE OF PUNJAB versus JUSTICE S.S. DEWAN (RETIRED CHIEF JUSTICE) AND ORS.
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-- STATE OF PUNJAB v. JUSTICE S.S. DEWAN (RETIRED CHIEF JUSTICE) AND ORS. APRIL 25, 1997 (K. RAMASWAMY, G.T. NANAVATI AND K. VENKATASWAMI, JJ.] Service Law : A B c Pu11jab Superior Judicial Service Rules 1963, Rule 16 (as ame11ded}-Judge retiri11g from Pu11jab High Court-Fixatio11 of pe11sion-I11- troductio11 of be11eficiary provision-Applicability of-Held, 11ot available to those already retired si11ce it is a retiral bemfit to make judicial services more attractive so that those who are already i11 service may not leave it and 11ew e11tra11ts may be tempted to joillt it. D Retiral be11efits-llltroductio11 of a be11eficiary provision-Criteria for detenni11atio!l-lleld, illlentio11 of the statute to be see11-lf it is a liberalisa- tion of an existi11g scheme, all pe11Sio11ers to be treated equally a11d if it is an introduction of new retiral be11efits, its benefits will 11ot be available to those E who had already retired prior to its introduction. The respondent Chief Justice of a High Court, retired w.e.f. 5.10.1989. He elected to receive his pension benefits in accordance with part III of Schedule I to the High Court Judges (Conditions of Service) Act, 1954 read with the Punjab Superior Judicial Service Rules, 1963. His F pension was accordingly determined by taking into account the qualifying service rendered by him as a member of the Punjab Superior Judicial Service and as a Judge of the High Court. However, on 20.2.1990 Rule 16 of Punjab Superior Judicial Service Rules, 1963 was amended and a proviso was also added to it, under which period of practice up to 10 years G was to be treated as part of qualifying service. This enlargement of the period of qualifying service would lead to an increase in the quantum of pension. The respondent claimed that being a direct recruit to the Punjab Superior Judicial Service he was entitled to addition of actual period of H 1027 1028 SUPREME COURT REPORTS [1997] 3 S.C.R. A practice at the Bar not exceeding IO years to his qualifying service and therefore, his pension and other retirement benefit have to be refixed. But the State Government decided that the notification dated 22.2.1990 has only prospective effect and therefore benefit of the amendment of R. 16 cannot be given to the respondent. B The respondent filed a writ petition praying that Union of India and the State Government be directed to compute his pension afresh in accord- ance with the said provision. The Single Judge relying on D.S. Nakara and Others v. Union of India, [1983) 1 SCC 305 held that all retired judge irrespective of the date of retirement constitute one class and the benefit C available under the amended rule cannot be confined to the judges who retired after the amendment and as such allowed the petition. The State filed a letters patent appeal, which was dismissed by the Division Bench with a clarification that the prayer being restricted only to pension not to other retirement benefit. Hence, this appeal. D Allowing the appeal, this Court HELD : 1.1. If the amendment has been made by way of upward revision of existing pen~ion scheme, ratio of D.S. Nakara case would apply. If it is held to be a new retiral benefit of a new scheme then it cannot be E extended to those who retired earlier. [1032-E-F] 1.2. Conceptually, pensior. is a reward for past service. Length of service is determinative of eligibility and the quantum of pension. The formula adopted for determining last average emoluments drawn has an impact on the quantum of the pension. D.S. Nakara case involved the F change of formula for determining average emoluments and it was treated as liberalisation of upward revision of the existing pension scheme. On the basis of same reasoning it can be said that any modification with respect to the other determinative factor, namely, qualifying service made with a view to make, it more beneficial in term of quantum of pension can also be G regarded as liberalisation or upward revision of the existing pension scheme. If, however, the change is not confined to the period of service but extends or relates to a period anterior to the joining of service, then it would assume a different character. Then it is not liberalisation of the existing scheme but introduction of a new retiral benefit. Here what has been done by amending Rule 16, the purpose seems to make the service more attrac- H tive for those who are already in service
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