# Rajpoot v. State of U.P. & others 2007

- **Citation:** (2008) 3 ILRA 794
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-08-06
- **Case number:** Special Appeal No.1080 of 2002
- **Bench:** Ashok Bhushan, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajpoot-v-state-of-u-p-others-2007-41210
- **Pages:** 6

## Headnote

Constitution of India, Art 226-Pensionpetitioner
retired
prior
to
the
commencement of G.O. 18.10.97-which
provides benefit of pension who retired
prior
to
that-claim
of
petitioner/Appellant for counting the
service period of Junior High School
working
w.e.f.
25.7.59
to
13.9.69
rejected
by
the
authorities
learned
Single
Judge
rightly
dismissed
the
petition in view of D.S. Nakkara's case
para 14-if the provision of pension not
applicable on the date of retirement-not
entitled for the benefit claimed.

Held: Para 9
3 All] Satya Narain Sharma V. State of U.P. and others
795
The judgment of the Apex Court in D.S.
Nakara's case (supra) is not applicable in
facts of the present case since in the said
case the benefit of liberalised pension
were arbitrarily withheld from one class
of the employee, who had retired. In the
said case before the Apex Court the
Iiberalised pension scheme has to be
applied to all pensioner and from the
date of retirement no distinction could
have been made for applicability of the
liberalised pension. Present is a case
where benefit of adding of service
rendered in other department for the
first
time
was
extended
by
the
Government on certain conditions, hence
cut-off date fixed in the Government
order cannot be said to be arbitrary.
Case law discussed:
A.I.R. 1993 S.C. 130, (1997)1 S.C.C. 208,
(2002) 2 S.C.C. 179

## Text

794 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
the compromise entered into between the
parties. Following this case, this court in
the case of Shikha Singh & others vs.
State of U.P. & another 2007 (59) ACC
123. quashed the proceedings of criminal
case due to the compromise entered into
between the parties. Similarly in the case
of Dinesh Kumar Jain & others vs. State
of U.P. & Others 2007 (59) ACC 148,
this court has quashed the proceedings of
the criminal case under section 498A,
323, 504, 506 IPC and 3/4 D.P. Act due to
the compromise entered into between the
parties in the proceedings under section
125 Cr.P.C. Reliance in this case has been
placed on B.S. Joshi vs. State of Haryana
(supra). In the case of Ganga Charan
Rajpoot vs. State of U.P. & others 2007
(57) ACC 981,the proceedings of criminal
case was quashed by the Court due to the
compromise entered into between the
parties outside the court.

6. Having regard to the observations
made in the rulings mentioned hereinabove, I am of the opinion that it would
be an abuse of the process of the Court, if
the criminal proceedings against the
applicants is allowed to continue, as the
dispute was of personal nature, which has
been settled out side the court by means
of compromise. Therefore, to do the
complete justice, the proceedings of
Complaint Case No. 1422 of 2003 may be
quashed by this Court in its inherent
jurisdiction under section 482 Cr.P.C.

7. Consequently, the applications
under section 482 Cr.P.C. in both the
cases are allowed and proceedings of
Complaint Case No. 1422 of 2003 (Raj
Kumar vs. Deena Nath & others), under
sections 417, 467, 468, 471, 504 & 506
IPC, pending in the court of Additional
Chief
Judicial
Magistrate
Gyanpur
(Bhadohi), are hereby quashed.

This order will form part of Crl.
Misc. Application No. 14172 of 2004 and
a copy thereof will be kept on record of
Crl. Misc. Application No. 59 of 2005.

The office is directed to send a copy
of this order to the Additional Chief
Judicial Magistrate Gyanpur (Bhadohi)
for necessary action.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ARUN TANDON, J.

Special Appeal No.1080 of 2002

Satya Narain Sharma

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Appellant:
Sri R.K. Porwal

Counsel for the Respondents:
S.C.

Constitution of India, Art 226-Pensionpetitioner
retired
prior
to
the
commencement of G.O. 18.10.97-which
provides benefit of pension who retired
prior
to
that-claim
of
petitioner/Appellant for counting the
service period of Junior High School
working
w.e.f.
25.7.59
to
13.9.69
rejected
by
the
authorities
learned
Single
Judge
rightly
dismissed
the
petition in view of D.S. Nakkara's case
para 14-if the provision of pension not
applicable on the date of retirement-not
entitled for the benefit claimed.

Held: Para 9
3 All] Satya Narain Sharma V. State of U.P. and others
795
The judgment of the Apex Court in D.S.
Nakara's case (supra) is not applicable in
facts of the present case since in the said
case the benefit of liberalised pension
were arbitrarily withheld from one class
of the employee, who had retired. In the
said case before the Apex Court the
Iiberalised pension scheme has to be
applied to all pensioner and from the
date of retirement no distinction could
have been made for applicability of the
liberalised pension. Present is a case
where benefit of adding of service
rendered in other department for the
first
time
was
extended
by
the
Government on certain conditions, hence
cut-off date fixed in the Government
order cannot be said to be arbitrary.
Case law discussed:
A.I.R. 1993 S.C. 130, (1997)1 S.C.C. 208,
(2002) 2 S.C.C. 179

(Delivered by Hon'ble Ashok Shushan, J.)

1. Heard Sri R.K. Porwal, learned
counsel appearing for the appellant.

2. This is an appeal against the
judgment and order dated 9th September,
2002 passed by learned Single Judge by
which order the writ petition filed by the
appellant was dismissed.

3. The appellant filed the writ
petition by which he challenged the
Government order dated 18th October,
1997 by which Government order it was
provided that benefit of the Government
order shall be given to the teachers and
non teaching employees, who retired on
the date of issue of the Government order
or thereafter. The appellant had earlier
filed a writ petition being Writ Petition
No.41235 of 1998 praying that his period
of service in Junior High School from 25th
July, 1959 up to 13th September, 1969 be
added in his service in Sri Shiv Narain
Inter College from where he retired. This
Court disposed of the writ petition
directing the Joint Director of Education
to decide the representation. The Joint
Director of Education vide his order dated
19th March: 1999 took a decision that the
period of services of the appellant in
Parisadiya institution cannot be added in
his service in Inter College since he has
retired prior to 18th October, 1997 and the
benefit of the Government order was
given to those employees who had retired
either on 18th October, 1997 or thereafter.
The petitioner had challenged both the
orders in the writ petition which was
dismissed by the learned Single Judge.

4. Learned counsel for the appellant
contends that appellant fulfils all the
condition of the Government order except
condition of cut-off date. Learned counsel
for the appellants further contends that
cut-off date fixed in the Government
order dated 18th October, 1997 is
arbitrary. He submits that appellant was
also a pensioner and fixing of cut-off date
by a Government order was arbitrary and
without any rational basis. He has placed
reliance on a judgment in the case of D.S.
Nakara and others vs. Union of India
reported in A.I.R. 1993 S.C. 130.

5.

We
have
considered
the
submissions of learned counsel for the
appellant and perused the record.

6. The submission, which has been
pressed before us, is with regard to cut-off
date fixed in the Government order dated
18th October, 1997. Learned counsel for
the appellant contended that the cut of
date is arbitrary since there is no rational
basis for fixing cut-off date. He submitted
that merely because the appellant had
retired prior to cut-off date, he cannot be
denied the benefit. Reliance was placed
796 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
upon the judgment in D.S. Nakara's case
(supra). In the said judgment following
was laid down in paragraph 49:-

"49. But we make it abundantly clear
that arrears are not required to be made
because to that extent the scheme is
prospective. All pensioners whenever
they retired would be covered by the
Iiberalised pension scheme, because the
scheme is a scheme for payment of
pension to a pensioner governed by 1972
Rules. The date of retirement is irrelevant.
But the revised scheme would be
operative from the date mentioned in the
scheme and would bring under its
umbrella all existing pensioners and those
who retired subsequent to that date. In
case of pensioners who retired prior to the
specified date, their pension would be
computed afresh and 198 would be
payable in future commencing from the
specified date. No arrears would be
payable. And that would take care of the
grievance of retrospectivity. In our
opinion, it would make a marginal
difference in the case of past pensioners
because the emoluments are not revised.
The last revision of emoluments was as
per the recommendation of the Third Pay
commission
(Raghubar
Dayal
Commission). If the emoluments remain
the same, the computation of average
emoluments under amended Rule 34 may
raise the average emoluments, the period
for averaging being reduced from last 36
months to last 10 months. The slab will
provide slightly higher pension and if
someone reaches the maximum the old
lower ceiling will not deny him what is
otherwise justly due on computation. The
words "who were in service on 31st
March, 1979 and retiring from service on
or after the date" excluding the date for
commencement of revision are words of
limitation introducing the mischief and
are vulnerable as denying equality and
introducing
an
arbitrary
fortuitous
circumstance can be severed without
impairing the formula. Therefore, there is
absolutely no difficulty in removing the
arbitrary and discriminatory portion of the
scheme and it can be easily severed."

7. The challenge is that there is no
rational basis for fixing the cut-off date.
The
Government
order
dated
18th
October, 1997 provides that the services
rendered
in
any
Government
Department/Government Institution can
be added in the services of an employee
of aided Higher Secondary Schools for
the purposes of pension on fulfilling the
conditions. The Government order itself
makes it clear that those employees who
have retired prior to issuance of the
Government order, shall not be given the
said benefit. The appellant who had
retired from an Intermediate College was
governed by the pension scheme, namely,
Uttar Pradesh Contributory Provident
Fund Insurance Pension Rules, which
came into force on October 1, 1964. The
said Rule did not provide for adding
services rendered in any other institution
or department. This was the reason why
the Government order was issued on 18th
October, 1997 making it permissible to
add
the
served
rendered
in
other
Government
Department
or
aided
institutions. The respondents for the first
time brought a provision giving the
benefit of adding the period of service
rendered in Government Department or
aided institutions on fulfilment of certain
conditions. The said Government order
was applied to those teachers and non
teaching staff who were in service and
retired on the date of issue of the
Government order or thereafter.
3 All] Satya Narain Sharma V. State of U.P. and others
797
8. The cut-off date, which was fixed
in the Government order has rational basis
since it provided a classification between
the employees who were already retired
and those who were in service. The
benefit was given only to those employees
who have rendered services in some other
Government Institution or Department on
fulfilment of certain conditions including
deposit of contribution in the Treasury.
Due to the said reason the Government
decided to make the Government order
applicable to those employees who were
in service on the date of issue of the
Government order. Thus the basis of
fixing a cut-off date has rational basis and
it cannot be said that the same is arbitrary.

9. The judgment of the Apex Court
in D.S. Nakara's case (supra) is not
applicable in facts of the present case
since in the said case the benefit of
liberalised
pension
were
arbitrarily
withheld from one class of the employee,
who had retired. In the said case before
the Apex Court the Iiberalised pension
scheme has to be applied to all pensioner
and from the date of retirement no
distinction could have been made for
applicability of the liberalised pension.
Present is a case where benefit of adding
of service rendered in other department
for the first time was extended by the
Government on certain conditions, hence
cut-off date fixed in the Government
order cannot be said to be arbitrary.

10. The Apex Court had occasion to
consider almost similar submissions in the
case of Commander Head Quarter,
Calcutta
and
others
vs.
Capt.
Biplabendra Chanda reported in (1997)1
S.C.C. 208. In the said case the
respondent had retired on 18th May, 1982
and according to the Rules, as in force at
that time, only 2/3rd of the precommissioned service was allowed to be
counted towards qualifying service for
earning pensionary benefit. A minimum
period of qualifying service was also
provided for becoming eligible for
pension on the basis of which the
respondent was found ineligible for grant
of pension. After about four years Rules
relating
to
qualifying
service
were
changed with effect from 1st January,
1986. One of the features of the amended
Rules was that full pre-commissioned
service was to be taken into count for
working
out
the
qualifying
service
required for earning pensionary benefits.
The submission was raised before the
Apex Court that amended Rules are
discriminatory and violates the principles
as laid down by the Apex Court in D.S.
Nakara's case (supra). The Apex Court
repelled the submission and laid down
that
there
was
no
question
of
discrimination between similarly situated
persons. Following was laid down in
paragraphs 4 and 5 of the said judgment:-

"4. We are of the opinion that the
ratio of D.S. Nakara has no application
here.
D.S.
Nakara
prohibits
discrimination
between
pensioners
forming a single class and governed by
the same Rules. It was held in that case
that the date specified in the liberalized
pension Rules as the cut-off date was
chosen arbitrarily. What is not the case
here. No pension was granted to the
respondent because he was not elibible
therefore as per the Rules in force on the
date of his retirement. The new and
revised Rules [it is not necessary for the
purpose of this case to go into the
question whether the Rules that came into
force with effect from January 1, 1986
were new Rules or merely revised or
798 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
liberalized Rules] which came into force
with effect from January 1, 1996 were not
given retrospective effect. The respondent
cannot be made retrospectively eligible
for pension by virtue of these Rules in
such a case. This is not a case where a
discrimination is being made among
pensioners who were similarly situated.
Accepting the respondent's contention
would have very curious consequences
even a person who had retired long
earlier would equally become eligible for
pension on the basis of the 1986 Rules.
The cannot be.

5. The decision in D.S. Nakara has
indeed been explained by two subsequent
Constitution Bench decisions of this Court
in Krishna Kumar & Ors. V. Union of
India & Ors. [1990 (4) S.C.C. 207] and
Indian Ex-Services League & Ors. Etc. v.
Union of India & ors etc. [1991 (1) S.C.R.
158]. In the later decision, it has been
held that "the petitioners' claim that all
pre-1.4.1979 retirees of the Armed Forces
are entitled to the same amount of
pension as shown in appendices 'A', 'B'
and 'C' for each rank is clearly untenable
and does not flow from the Nakara
decision". We may also refer in this
connection to the observations in another
decision of this Court in State of West
Bengal v. Ratan Behari Dey [1993 (4)
S.C.C. 62] to the following effect:

"...it is open to the State or to the
Corporation as the case may be, to
change
the
conditions
of
service
unilaterally. Terminal benefits as well as
pensionary benefits constitute conditions
of
service.
The
employer
has
the
undoubted power to revise the salaries
and/or the pay scales as also terminal
benefits/pensionary benefits. The power to
specify a date from which the revision of
pay
scales
or
terminal
benefits/
pensionary benefits, as the case may be,
shall take effect is a concomitant of the
said power. So long as such date is
specified in a reasonable manner, i.e.,
without bringing about a discrimination
between similarly situated persons, no
interference is called for by the court in
that behalf

..... the power of the State to specify a
date
with
effect
from
which
the
Regulations framed or amended, as the
case may be, shall come into force is
unquestioned, a date can be specified
both
prospectively
as
well
as
retrospectively. The only question is
whether the prescription of the date is
unreasonable or discriminatory. Since we
have found that the prescription of the
date in this case is neither arbitrary nor
unreasonable,
the
complaint
of
discrimination must fail."

11. Again in the case of State of
W.B. and another vs. W.B. Govt.
Pensioners' Associations and others
reported in (2002) 2 S.C.C. 179. The
Apex Court considered D.S. Nakara's
case (supra) and repelled the similar
submissions upholding the cut-off date.
Paragraphs 10 and 14 of the judgment are
relevant and quoted as below:-

"10. The subject matter of decision
in that case was an Office Memorandum
dated 25.5.1979 by which the Ministry of
Finance,
Government
of
India
propounded a liberalised formula for
computation of pension and made it
applicable to Government servants who
were in service on 31.3.1979 and retired
from service on or after that date. Pre1979 retirees were being paid pension on
the basis of average emoluments of 36
3 All] Nanku V. State of U.P.
799
months' salary which preceded the date of
retirement.
The
liberalised
formula
provided for i) average emoluments with
reference to the last 10 months of service;
ii) a higher minimum ceiling on the
pension payable and iii) introduced a slab
system for computation of pension. After
an exhaustive review of decisions relating
to Article 14 of the Constitution, the Court
held
that
pension
was
not
only
compensation for loyal- service rendered
in the past but was a measure of socio
economic justice, and that there was no
reason given for choosing 1.4.1979 as a
cut-off date for applying the formula. In
coming to the conclusion that the cut off
date was invalid and must be struck down
and that the liberalised formula must be
made available to all pensioners, the
Court noted that it was not a case of
contributable scheme or a pension fund
from which alone the pension was to be
disbursed neither was it a new retiral
benefit but it was an "upward revision of
an existing benefit". The argument of the
Government
regarding
the
non-
availability
of
funds
was
found
unacceptable since, it was said, that
application of the same pension formula
to all pensioners would only make a
marginal difference in the case of past
pensioners because the emoluments were
not revised and all that the old pensioners
would get by reason of computation on
the liberalised formula would be a slightly
higher pension.

14. Illustrative of another aspect of
the Nakara principle, is the decision in
Commander Head Quarter, Calcutta and
Others V. Capt Biplabendra Chanda,
which said that the requirement of
equality prescribed by Nakara did not
extend to a new retiral benefit but was
limited only to an upward revision of an
existing benefit. It was held therefore that
a person who was not entitled to receive
pension on the date of his retirement
could not claim a grant of pension
because of a subsequent change in the
criteria of eligibility for such grant. [See
also Union of India and Others V. Dr.
Vijaypurapu Subbayama 2000 (7) SCC
662
and
V.N.Kasturi
V.
Managing
Director, State Bank of India, Bombay
and another 1988 (8) SCC 30.}"

12. In view of the aforesaid, we do
not find any error in the order of learned
Single Judge dismissing the writ petition,
however, for the reasons as noted above.

13. The special appeal is dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.08.2008

BEFORE
THE HON'BLE AMAR SARAN, J.
THE HON'BLE R.K. RASTOGI, J.

Criminal Appeal No. 875 of 1979

Nanku

...Appellant (In Jail)
Versus
State of U.P.

...Respondent

Counsel for the Appellant:
Sri G.S. Chaturvedi
Kumari Meena

Counsel for the Respondent:
A.G.A.

Indian
Penal
Code-Section
302/34Criminal Appeal-against the conviction of
life imprisonment-record of session Trail
summoned-reported by District Judge
burnt out-retrial also not possible in
absence
of
basic
document-No
alternative except to allow the appeal by
setting aside the conviction order.