Holding

Employees who had become Group C in 1971 are not entitled to the benefit of retention up to age 60 and must retire at the statutory age of 58.

Summary

The respondents, originally appointed as peons in 1970, opted for Group C status in 1971 after a pay‑scale revision that placed employees drawing above Rs 230 in Group C. When they reached the statutory retirement age of 58, a retirement notice was issued. They challenged the notice, contending that under Rule 76 of the West Bengal Service Rules (Part I) and a 1985 Governor's memo they were entitled to be retained in service until the age of 60 or 65. The Calcutta High Court accepted this argument and quashed the notice. On appeal, the State argued that the benefit of the memo applied only to employees who were still in Group D on the date the 1981 Revision of Pay and Allowances Rules came into force, and that the respondents had ceased to be Group D in 1971. The Supreme Court held that the respondents were Group C from 1971 and therefore not covered by the memo or the special provision for Group D employees, and they must retire at 58. The appeal was allowed and their pension was to be calculated on the pay drawn at 58.

Issues considered

Whether employees who opted for Group C status in 1971 are entitled to the retention‑up‑to‑age‑60 benefit under Rule 76 and the 1985 Governor's memo.
Interpretation of Rule 76 of the West Bengal Service Rules (Part I) and its note regarding Group D employees who became Group C after the 1981 pay‑revision.
Whether the Governor's memo of 19 February 1985 applies to the respondents.

Legislation cited

West Bengal (Revision of Pay and Allowances) Rules, 1981
West Bengal Service Rules (Part I)s. Note 2, s. Rule 50, s. Rule 75, s. Rule 76

Subjects

service lawcompulsory retirementGroup CGroup DWest Bengal Service Rulesretirement agepay revisionGovernor's memojudicial review

Judgment

STATE OF WEST BENGAL AND ORS. A
¥ v.
~

ANAL KUMAR GHOSH AND ORS.

FEBRUARY 28, 1995
B
[K. RAMASWAMY AND B.L. HANSARIA, JJ.]

/ Service law-West Bengal Service Rules Part-I-Rule 76-Govt.
I Memorandum No. 10606-F dated September 25, 1978-West Bengal
""( (Revision of Pay and Allowances) Rules, 1981-Compulsory Retire-
ment-Govemment employees who are in Group 'C' service prior to introduc- c
tion of 1981 Rules-Not entitled to the benefit of being retained in service upto
the age of 60 years.

The respondents were initially appointed as Peons in the Excise.
Department of the West Bengal Government in the year 1970. Consequent D
to the revision of scale of pay, the Government by its Memorandum dated
September 25, 1978 while classifying all the employees as Group 'A' to 'D'
1 enumerated that those employees drawing the pay or scale of pay with a
maximum of Rs. 500 but above Rs. 230 would be Group 'C' employees. The
respondents opted for the above conditions. Consequently, they were draw-
ing a scale of pay above Rs. 230. The respondents were served with a notice E
of retirement at the age of superannuation of 58 years, which they chal-
lenged as invalid and illegal alleging that by operation of para 2 of the
Memo of the Governor issued on 19.2.1985, they were entitled to be
retained in service upto the age of 60/65 years, as the case might be under
--< Rule 76 of the West Bengal Service Rules Part-I. Their Writ Petition Was F
allowed and the notices were quashed.
.___/~

In this Court, the appellants contended that by operation of the
conditions imposed while effecting revision of scale of pay in 1971, as opted
by the respondents, they ceased to be in Group 'D' service w.e.f. 1971. It
was alleged that the clarification issued by the Governor in the 1985 Memo G

-- was not applicable in this case as it would apply only to such of the
employees in group 'D' service who continued to be so on the date the West
Bengal (Revision of Pay and Allowances) Rules, 1981, came into force. The
respondents not continuing as Group 'D' service from 1971 were not
entitled to the benefit of the Memo. H
391
\
'

392 SUPREME COURT REPORTS [1995) 2 S.C.R.

A The respondents sought to draw a distinction between scale of pay
and the pay and stated that as on April 1971 and after the 1981 revision
they drew their pay below Rs. 230 therefore, they were 'entitled to be
retained in service till the age 60.

Allowing the appeal, this Court
B
HELD: The respondents opted to be in Group 'C' employees in 1971
as they were in the scale of pay above Rs. 230. Thus in 1971 they were in
Group 'C' service for the purpose of compulsory retirement. In 1981 they
were no longer in Group 'D' service so as to entitle them to remain in
C service till they attained the age of 60 years. The benefit given only to the
employees who were continuing as Group 'D' employees on the day 1981
Revised Pay Scales Rules 1981 had come into force. Such employees in
Group 'D' who did not cross over by promotion to Group 'C' service,
though were drawing higher scale of pay were entitled to the benefit of 60
years rule. The respondents did not belong to that limited class. Therefore,
D they were not entitled for the benefit of 1981 Rules or the Amendment
Rules or Uie Governor's Memo. (394-F-H]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. "404:-4405 •
of 1995.

E From the Judgment and Order dated 5.2.93 & 1.8.94 of the Calcutta
High Court in F.M.A.T. No. 425/92 & 683 of 1994.

N.S. Hegde, M.P. Verma, Dillip Sinha, J.R. Das, Ms. Dipti
Chowdhary, Amarendra Nath Dawn and A. Bhattacharjee for the Appel-
F lants.

L.C. Behari, Parijat Sinha, B.D. Ahmed, Ms. Suchandra Mukherjee
for Lawyers Associated for the Respondents.

The following Order of the Court was delivered :
G Leave granted.

Admittedly, the respondents were initially appointed as Peons in the
Excise Department of the West Bengal Government. Thereafter, their
posts were converted into Excise Constables· and they continued as Excise
H Constables. In the year 1970, consequent to the revision of scale of pay,
I
I

STATEOFW.B. v.AKGHOSH 393

the Government by its Memorandum No. 10606-F dated September 25, A
1978, while classifying all the employees as Groups 'A' to 'D', have
enumerated in respect of Group 'C' that those employees drawing the pay
or a scale of pay with a maximum of Rs. 500 but above Rs. 230 would be
Group 'C' employees. The options have been called for from them includ-
ing the respondents and they had opted for the above conditions. Conse-
B
quently, they were drawing a scale of pay above Rs. 230. When the
respondents reached the age of superannuation of 58 years, notice of
retirement was given to them. On receipt thereof, they approached the
High Court of Calcutta under Article 22(i :-f the Constitution. Learned
Single Judge and the Division Bench, on appeal, held that by operation of
para 2 of the Memo. of the Governor issued on February 19, 1985, they C
are entitled to be retained in service upto the age of 60/65 years, as the
case may be under Rule 76 of the West Bengal Service Rules Part-I and
that, therefore, the notice on retirement was invalid and illegal. They were
quashed.
D
Feeling aggrieved, the present appeals were filed. Shri Santosh
Hedge, learned senior counsel for the appellant, contended that by opera-
tion of the conditions imposed while effecting revision of scale of pay in
. 1971, as opted by the respondents, they ceased to be in Group 'D' service
with effect from 1971. Therefore, they cannot fall back upon the clarifica-
tion issued by the Governor in the aforesaid 1985 Memo. It would apply E
only to such of the employees in group 'D' service and continued to be so
on the date, the West Bengal (ReVision of Pay and Allowances) Rules,
1981, came into force. The respondents are not continuing as Group 'D'
< service from 1971 and are not entitled to the benefit of the above Memo.
We find force in the contention. Learned counsel for the respondents has F
sought to justify the order on the ground that there is a distinction between
/. scale of pay and the pay. As on April 1, 1971, the respondents were drawing
their pay below Rs. 230 and that, therefore, they continued to draw even
after 1981 revision of scale of pay and, therefore, they are entitled to be
retained in service till the completion of the age of 60 years. We find no
force in the contention. It is seen that' Chapter X of the West Bengal G
-< Service Rules (Part-I) provides with the heading "Compulsory retirement":
Rule 76(a) says that Except as otherwise provided in these Rules a Govern-
ment employee shall retire from service ..... compulsorily w.e{_ the after-
noon of the first day of the month in which he attained the age of 58 years.
The proviso and other notes are not relevant for the purpose of this case. H
, .. ; '·' 'I-#

' i ' .
\
39~ SUPREME COURT REPORTS [1995] 2S.C.R.
·-
;
r . -, - ••
-.o"-~--~------·

A Rule. 76 provides that subject. to the provisions of sub-rule (b) a Govern-
inent employee in Group 'D' service would ordinarily be retained. by the
appointing authority to retiie form service w.e.f. the afternoon of the last
day of the month of which he attains-the age of 60 years ..... Note 2 says
that a Government employee ~ho, consequent upon th~ introduction of the
West Bengal Services (Revision of Pay and Allowances) Rules, 1981 have.
B become Group 'C' employees although prior to such revision of pay scale
they were in Group 'D' may be treated as belonging .to Group 'D'
employees for the purpose of age of retirement who had retained in service
_l
upto the age of 65 years or 62 years, in accordance with the provisions of
sub-rule (a) or sub-rule (b) of this Rule. For all other purposes as for
C example disciplinary matters such Government employees shall howsoever
be treated as belonging to Group 'C'.

A reading of these rules vis-a-vis the me;,.o of th.e Governor relied
on by the respondents and accepted by the High Court, would clearly show
·D that the Government ·employees who are in Group 'C' service prior to the
·. introduction of the West Bengal Re\.ision of Pay and Allowances Rule,
1981 alone are entitled to the benefit of being retained in service _upto the
age of. 60 years, reason is obvious~ Rules 50 and 75 clearly enumerates that
the Government servants in Group 'A?. to 'C' shall be required to 'compul-
sorily retire on attaining the age of 58 years on the last day of the month
E in which they attained the age of 58 years.' As seen in the year 1971 the
respondents were in the scale of pay above Rs. 230. Consequently they
opted to be in Group 'C' employees ill 1971: When they ceased to be in
Group 'D' Government employees and entered into Group _'C' service in
1971 then they._continued to remain in Group 'C' service for the purpose
F of compulsory .retirement They cannot fall back upon the, Note 2 or the
Governor's memo in that behalf since as in 1981 they ~ere no longer in
Group 'D' service so as to entitle them to remain in service till they attained
the age of 60 years. It is also further to be noted that the benefit given only
to the employees who are continuing in Group 'D' employees on the day
1981 revised pay_ si:ales Rules had come into force. Such employees in
G Group 'D' but did not cross over by promotion to Group_ 'C' senice, though
were drawing higher scale of pay are entitled to the benefit of 60 y:ars rule
..:..... The respondents do not belong to that limited class. Therefore, they
are not entitled for the benefit of 1981 Rules or the Amendment Rules or
the Governor's Memo. The High Court did not advent to these rules but
H only to the Governor's 1971 or 1981 memo. The appeals are accordingly
I

STATEOFW.B. v.AKGHOSH 395

allowed. It is now stated that the respondents retired from service. There- A
fore, their pension shall be computed on the basis of the pay they have last
drawn on attaining the age of 58 years and the computation and payment
shall be made within a period of 3 months from the date of receipt of this
order. The pensionary benefit shall accordingly be released to them within
the aforesaid period. The appeal is accordingly allowed with the above
directions. without costs. It is clarified that if the respondents really had B
)' - worked till the attained the age of 60 years, it is needless to mention that
the Government may not recover the pay already paid except any lawful
I deductions like lands etc.
'---(

A.G. Appeal allowed.