Ram Narayan Gupta vs State of U.P.and another

S. S. Sodhi, J.—The controversy here is with regard to the date from which the appellant Ram Narayan Gupta became entitled to payment of full pension.

It was in August 1927 that the appellant Ram Narayan Gupta had joined service as an Assistant teacher. He retired in February 1957 on attaining the age of superannuation. He held the post of Deputy Director of Education at that time.

The post held by the appellant was not a pensionable one. He came under the Contributory Provident Fund Scheme and consequently, on retirement he was paid not only his own share of contribution to the Provident fund but also the Government''s contribution to it. Later on, option became available to him under the U. P. Contributory Provident FundCumPension Insurance Rules, 1948 and in exercise thereof he opted for acceptance of the Government''s contribution to his provident fund with reduced pension throughout.

The pension payable to the appellant was commuted, as required, in terms of the provisions of Rule 16 of the U. P. Contributory Provident FundCumPension Insurance Rule, 1984. This worked out to Rs. 483.33 paise and the deduction from it in lieu of the Government''s share of con�tribution to the appellant''s provident fund account at Rs. 122.20 paise per month, leaving the net pension payable to be Rs. 361.13 paise per month. The appellant continued to be paid pension at this rate till July 1908 after which, by virtue of the government order of July 20, 1985, full pension became payable to him with effect from August, 1985.

According to Mr. S. P. Gupta, Counsel for the appellant, Ram Narayan Gupta''s entitlement to full pension arose not from the said Govt. order of July 20, 1985 but from November 14, 1964, this being the date when the government''s share of contribution to the appellant''s provident fund stood fully repaid by the monthly deductions from his pension. This contention constitutes the basis of the appellant''s further claim for refund of the amount, deducted from his pension after this date i. e. November 14, 1964. Reliance being placed in this behalf, upon the Judgment of the Division Bench in Writ Petition 2705 of 1984 (R. A. Beharlal v. State of U. P.) decided on September 13, 1985 wherein dealing with a similar situation, it was held "Once the contribution stood paid no further deduc�tions could be made. It would amount to reduction of pension and that could not be done. The pension is reduced for realisation of government money and for no other purpose.''''

A reading of the Judgment in Beharwal''s Case (Supra) would how�ever, show that the provisions of Rule 16 of the U. P Contributory Provi�dent FundCumPension Insurance Rules, 1984 and the U. P. Contributory Provident Fund Insurance Rules 1948, which were clearly applicable were not in any manner noticed or adverted to, a situation which occurred obviously due to the fact that no counter affidavit had been filed. The learned Single Judge, therefore, rightly did not treat it as a binding judicial precedent.

In terms of the provisions of Rule 16 of the U. P Contributory Provident FundCumPension Insurance Rules, 1948 and the U. P. Contri�butory Provident Fund Insurance Rules, 1948 the appellant having once exercised his option for reduced pension could not turnout around and seek to incorporate therein any condition not contained there. In other words, he cannot be heard to say that the reduced pension was for the limited period till the amount of government''s contribution to his provi�dent fund was not repaid. There can thus be no manner of doubt that it is only from August 1, 1985 that the appellant became entitled to full pension and that too, by virtue of the Government''s order of July 20, 1985.

Faced with this situation Counsel sought to pressinaid the con�cepts of fair play and nondiscrimination, founded upon the observations in Beharwal''s Case (Supra) "we are informed that on 26th April, 1984 when this Court granted interim order in favour of the petitioner directing oppo�site parties to pay his full pension they issued a circular in all such cases to pay full pension. Therefore, the Government also appears to have accepted even though, belatedly, the claim of the petitioner." Tne emphasis being upon the circular mentioned therein. No such circular was, however, produced nor is there, in fact, any material to suggest that it was ever issued. It is apparent, therefore, that the reference to the circular was merely on hearsay of counsel and that too, as pointedout earlier, in the context of no counter affidavit having been filed. Such being the circumstances invoking the concepts of fair play and nondiscrimination on the basis of a nonexistant circular was clearly misplaced.

It may be mentioned here that Counsel for the appellant had cited some Judgments as precedents to support his arguments on the said con�cepts of fair play and nondiscrimination, but none of them has any rele�vance to the point in issue here. The first of these Judgments being that of the Supreme Court in Sengara Singh v. State of Punjab, 1983(4) SCO225. This was a case where 100 members of Police had been dismissed on account of an agitation launched by them. Later 1000 of them were taken back in service but not the petitioner. The Court found that no criteria had been disclosed for reinstating the others but not the petitioner.

Next was British India Corporation Ltd v. Industrial Tribunal 1984 1 SCC305 where several striking workers were reinstated but not all and it was held that the approach of the Management in the matter was discriminatory.

The other Judgment cited was P. Prabhakar Rao v. State of Andhra Pradesh, 1985 (Supp) SCC432 which concerned alteration in the age of retirement resulting in discriminatory treatment to some in the same class.

Finally, there is Vishundas Hundumal etc. v. The State of Madhya Pradesh, AIR 1981 SC1636 which concerned a plea of discrimination in a scheme for nationalisation of Road transport.

13 It will be seen that none of the judgments sought to be relied, upon has any bearing on the issue raised in the present case, & thus call for no further comments.

The Judicial precedent that clinches the issue here, is the judg�ment of the Supreme Court in "Common Cause" v. Union of India, AIR. 1987 SC210, where the theory of restoration of full pension after the com�muted pension amount had been repaid was specifically raised and not accepted. The precise contention raised there being regarding the striking down of the provisions for the commutation of pension Rules which per�mitted recovery of more than what had been paid to the petitioners, on commutation of their pension. Later, when the government took the decision to restore full pension after 15 years, this period of 15 years was sought to be questioned on the ground that the commuted portion of the pension is ordinarily recovered in 12 years and there was, therefore, no justification for fixing this period at 15 years. It was held that there was no justification for disturbing the 15 years formula for restoration of full pension. In other words, the theory of restoration of full pension after the commuted pension amount had been repaid was turneddown.

Such, thus, being the settled position in law no exception can indeed be taken to the judgement of the learned Single Judge, which is accordingly, hereby upheld and affirmed and this Special Appeal is conse�quently dismissed. In the circumstances however, there will be no order as to costs.

(Special Appeal dismissed.)