Khem Raj Sharma vs State Of J&K And Others on 30 May, 2019

[Cites 2, Cited by 2]

Jammu & Kashmir High Court

Khem Raj Sharma vs State Of J&K And Others on 30 May, 2019

1. The petitioner was serving in the School Education Department as Incharge Zonal Education Planning Officer (Incharge ZEPO) and attained superannuation on 30.09.1997. His pensionary benefits were sanctioned by the respondent No.2 under PPO No.104330 vide No.PPO Cell/97-98/16335-37 dated 26.11.1997. With a view to implement 5th Pay Commission recommendations, respondent No.1 vide SRO 19 dated 19.01.1998 inserted Article 242-CC to the Jammu and Kashmir Civil Service Regulations, 1956 by virtue of which the Government servants, who had retired between 01.01.1996 to 31.12.1997 were given an option to retain the pre-revised scale of pay and have their pension and DCRG calculated under the rules in force SWP No. 631/2009 Page 1 of 16 before 01.10.1996. As per note appended to the Article 242-CC, the option in terms of clause (a) of the above Article was to be exercised within three months from the date of the issue of SRO 19 of 1998 dated 19.01.1998. The petitioner claims that in terms of the note appended to the Article, he exercised his option on the prescribed format on 03.03.1998 and accordingly, his case for revision of pension was submitted by the concerned DDO, i.e. ZEO, Kishtwar to the respondent No.2 vide his No.1997/ZEO/K dated 05.03.1998. The respondent No.2, however, returned the case of the petitioner back to the ZEO concerned, i.e. respondent No.3 vide letter dated 24.08.1998 with a direction that the case of the petitioner for revision of pension be resubmitted by adding only 8% (difference) and not 148% as DA in terms of Government Order No.175-F of 1996 dated 10.06.1996. The respondent No.3 submitted a fresh case for revised pension vide his No.491/CEO/K dated 07.09.1998, which, as claimed by the petitioner, was based on revised pay scale, which were implemented w.e.f. 01.01.1996. Acting on the revised proposal, the respondent No.2 issued revised PPO vide his No.PPO Cell/98-99/45214-16 dated 21.10.1998 authorizing pension @ Rs.4052/- less commutation. The petitioner is aggrieved of the letter written by the respondent No.2 dated 24.08.1998 (Annexure-C) and also the revised proposal submitted by the respondent No.3 and the consequent revised PPO dated 21.10.1998 issued by the respondent No.3 fixing the pension of the petitioner @ Rs.4052/- and has challenged the same inter alia on the ground that with the insertion of Article 242-CC in Jammu and SWP No. 631/2009 Page 2 of 16 Kashmir Civil Service Regulations, 1956 and the exercise of option by the petitioner within the prescribed period for opting the pre- revised pay scale for the purposes of fixation of pension and DCRG, the petitioner was entitled to pension amounting to Rs.6631/- per month w.e.f. 01.10.1997 whereas respondents 2 and 3 erroneously fixed this pension @ Rs.4052/-, which is for less than what is legitimately due to him under law. It is, thus, urged that by total misinterpretation of Article 242-CC and Govt. Order No.175-F of 1996 dated 10.06.1996, the respondents have wrongly calculated his pension and have erroneously fixed the same @ Rs.4052/- whereas, on plain reading of Article 242-CC along with Govt. order No.175- F.dated 10.06.1996, his pension should have been Rs.6631/- per month.

2. The respondent No.2 has filed the reply and has defended its decision impugned in the writ petition on the ground that the pension of the petitioner has been correctly worked out in terms of the sub clause (i) and (ii) of Article 242-CC (a) as inserted vide Notification SRO 19 of 1998 dated 09.01.1998 in the light of clarification issued by the respondent No.1 under OM No. A/12 (98)-397 dated 23.02.1998. It has been sought to be explained that acting strictly in terms of the provision of Article 242-CC (a) as clarified vide office memo dated 23.02.1998, the pension admissible to the petitioner has been worked out to be Rs.3571/- w.e.f. 01.10.1997 whereas, the respondent No.2 has already authorised the pension @ Rs.4052/- w.e.f. 01.10.1997 straightway under SRO 18, which is more beneficial to the petitioner. SWP No. 631/2009 Page 3 of 16

3. Having heard learned counsel for the parties and perused the record, it would be necessary to first set out Article 242-CC (a) Jammu and Kashmir Civil Service Regulations, 1956, which is relevant to controversy in hand and it reads as under:-

"242-CC. (a) Government servants who have retired or will be retiring between 01-01-1996 to 31-12-1997 shall be given an option to retain the pre-revised scale of pay and have their pension and DCRG calculated under the rules in force before 01-01-1996. The pension and DCRG in such cases shall be regulated as under :-

(i) The term 'emoluments' shall means 'pay' as defined in Art.

27(a)(i) of these rules and shall include dearness allowance upto AICPI 1436 i.e. instalment of July 1995, sanctioned vide Government Order No.220-F 1995 dated 29.09.09.1995 and interim relief I & II (sanctioned vide Government Order No. 7-F of 1995 dated 02-02-1995 and 206-F of 1995 dated 18-09-1995 respectively).

(ii) Pension shall be calculated at 50% of average emoluments.

To the pension so calculated, dearness allowance upto AICPI 1510 at prescribed rates (sanctioned vide Government Order No. 175-F of 1996 dated 10-06-1996, January, 1996 instalment) shall be added. The amount so arrived at shall be regarded as pension.

(iii) DCRG will, be admissible with reference to emoluments at

(i) above under the orders in force immediately before coming into effect of these provisions. The maximum amount of gratuity shall not exceed Rs. 2.50 lakhs.

(iv) Commutation of pension shall be admissible in accordance with the rules in force immediately before coming into effect of these rules.

(v) Family pension shall be allowed in accordance with the orders applicable prior to issue of these orders and shall be calculated with reference to basic pay in the pre-revised SWP No. 631/2009 Page 4 of 16 scale. To the family pension so calculated dearness allowance up to AICPI 1510 at prescribed rates (i.e. January, 1996 instalment as sanctioned vide Government Order No. 175-F of 1996 dated 10-06-1996) shall be added. The amount so arrived at shall be regarded as family pension for regulating payment of dearness allowance beyond average AICPI 1510"

4. From the plain reading of the provision reproduced above, it is evident that all the Government servants, who had retired between 01.01.1996 to 31.12.1997 were given an option to retain the pre-revised scale of pay and have their pension and DCRG calculated under the rules in force before 01.01.1996. The option was to be exercised within a period of three months from the date of issue of order. It is not in dispute that the petitioner retired on 30.09.1997 and therefore, was eligible to give his option. He also submitted his option, in the prescribed format within the prescribed period of three months and therefore, became entitled to the revision of his pension and DCRG in terms of Article 242-CC (a). In the Article 242-CC (a), the manner in which pension and DCRG in the cases where the eligible government servants have opted to retain the pre-revised scale of pay is to be calculated is also laid down. A careful reading of the provision would indicate that the term „emolument‟ would mean „pay‟ as defined in Article 27 (a) (i) and would also include DA upto the instalment of July, 1995 (AICIP 1436) and interim relief (I) and (II) sanctioned vide Govt. Order No.7-F of 1995 dated 02.02.1995 and 206-F of 1995 dated 18.09.1995. The pension has been provided to be calculated @ 50% of the average emoluments and to the pension so calculated, the SWP No. 631/2009 Page 5 of 16 DA upto 01/1996‟s instalment (AICIP 1510) sanctioned vide Government Order No.175-F of 1996 dated 10.06.1996 would be added. The amount so arrived at would be recorded as pension of such Government servant. The respondents claim that if the provision of Article 242 CC (a) are applied to the case of the petitioner, the revised pension of the petitioner on the exercise of option by him shall be in the following manner:

Average Emoluments for the last ten months under Article 242- CC (a) of J&K Civil Service Regulations Volume-I (inserted vide SRO-19 dated 19.01.1998 read with Finance Department clarification issued under O. M. No.A/1(98)-397 dated 23.02.1998):

                        Emoluments                                 Amount
      Period
      01.12.1996    Basic Pay                 2275
      31.12.1996    DA:136% (July-1995)       3502
      (one month)   Interim Relief-I          100
                    Interim Relief-II (10%) 258
                    Total                     6435 x 1 6435
      01.01.1997    Basic pay                 2650
      30.09.1997    DA: 136% (July-1995)      3604
      (nine months) Interim Relief-I          100
                    Interim Relief-II (10%) 265
                    Total                     6619 x 9 59571
                                 G. Total (6435+59571) 66006

Average emoluments for the last 10 months : Rs.66006/10 = Rs.6600.60 Calculation of Pension: Article-240-A (V) of J&K Civil Service Regulations. Volume-1 (inserted vide SRO 19 dated 19.01.1998) 50% of 6600.60= Rs.3300.30 Amount of Pension Rounded to Rs.3301/-PM w.e.f.

01.10.1997 Rs. 270 Add DA @ 8% subject to minimum of Rs.270/- as per Finance Department O.M. No. A/1(98)-397 dated 23.02.1998) 3301+270= Rs.3571/- w.e.f.

Total (Pension+DA): 01.10.1997 SWP No. 631/2009 Page 6 of 16

5. This position highlighted by the respondents, it may be noted, is vehemently disputed by the petitioner in so far as addition of D.A. as per Govt. Order No.175-F of 1996 dated 10.06.1996 is concerned.

6. Calculation of pension (as per the respondents)

(i) Amount of pension would be 50% of the average emoluments i.e. 3300.30 rounded to Rs. 3331/-per month w.e.f. 01.10.1997;

(ii) Add DA @8% subject to minimum of 270 as per Govt.

order No.175-F of 1996 dated 10.06.1996 read with office memo dated 23.02.1998. Total (Pension+DA) 3301+270=Rs. 3571/- w.e.f. 01.10.1997.

7. The respondents have further indicated that if it is taken that the petitioner has not opted for the pre-revised pay scale in terms of 242- CC(a) then his pension in the revised pay scale would work out to be Rs.4052/-, which, the respondents claim, has been done in the case of the petitioner as that was found more beneficial to the petitioner.

8. This position highlighted by the respondents whereby the petitioner has been held entitled to pension @ 3571/- in terms of Article 242-CC

(a) and to Rs. 4052/- in the revised pay scale has been seriously disputed by the petitioner. For better appreciation of the rival contentions of the parties, it would be appropriate to set out the relevant extract of Govt. No.175-F of 1996 dated 10.06.1996 and the clarification issued by the Department of Finance vide office memo No.A/12/(98)-397 dated 23.02.1998.

"Govt. Order No.175-F of 1996 dated 10.06.1996 In Partial modification of Government Order No.221-F of 1995 dated 29.09.1995, it is hereby ordered that the State SWP No. 631/2009 Page 7 of 16 Government Pensioners/Family Pensioners shall be allowed Dearness Allowance on Pension/Family Pension at the following rates with effect from 01.01.1996:-

Pension/Family Pension per Rate of Dearness Allowance per month month (including previous instalments with effect from 01.01.1996 Not exceeding Rs.1750/- 148% of pension/Family

(i) Pension.

Exceeding Rs. 1750/- but not 111% of Pension/Family

(ii) exceeding Rs.3000/- Pension subject to a minimum of Rs.2590/-PM Exceeding Rs.3000/- 96% of Pension/Family Pension

(iii) subject to a minimum of Rs.3330/-PM GOVERNMENT OF JAMMU AND KASHMIR FINANCE DEPARTMENT O. M. No. A/12(98) I Dated 23-02-1998 Subject :-Notification SR0-19 dated 19-01-1998-Clarification regarding.

Doubts have been expressed with regard to actual import of sub clauses (i) and (ii) of Art. 242-CC (a) as inserted vide Notification SRO 19 dated 19-01-1998 issued vide endtt. No. A/12 (98)-316 dated 19-01-1998. The said sub-clauses (i) and

(ii) of the said Art. read as under :-

"(i) The term 'emoluments' shall mean 'pay' as defined in Art. 27 (a) (i) of these rules and shall include dearness allowance upto AICPI 1436 i.e. instalment of July, 1995 sanctioned vide Govt. Order No. 220-F of 1995 dated 29-9-1995 and interim relief I & II (sanctioned vide Govt. Order No. 7-F of 1995 dated 02-

                     02-1995     and     206-F    of   1995     dated    18-9-1995
                     respectively).

(ii) Pension shall be calculated at 50% of average emoluments to the pension so calculated, dearness allowance up to AICPI 1510 at prescribed rates (sanctioned vide Govt. Order No. 175-F of 1996 dated SWP No. 631/2009 Page 8 of 16 10-6-1996-January 1996 instalment) shall be added. The amount so arrived at shall be regarded as pension.

2. In respect of those Govt. Servants who have retired in between 01-01-1996 to 31-12-1997 and have opted or may opt for the pre-revised pay scale(s) for purpose of calculation of their retirement benefits under the rules in force prior to 01.01.1996, the following elements shall be taken into account for determination of ' emoluments' for calculation of their pension :

(i) Basic pay as defined in Art. 27(a) (i) of J&K CSRs.

(ii) DA up to AICPI 1436 i.e. up to and including July 1995 instalment 11 (sanctioned vide Govt. Order No. 220-F of 1995 dated 29-9-1995)

(iii) Interim Relief I & II instalment (sanctioned vide Govt. Order No. 7-F of 1995 dated 02-02-1995 and Govt.

Order No. 206-F of 1995 dated 18-9-1995 respectively.)

3. Pension shall be calculated at 50% of the average of the ' emoluments‟ as indicated in para 2 above. To the pension so calculated shall be added element of DA sanctioned beyond AICPI 1436 (i.e. up to and including July, 1995 instalment - sanctioned vide Govt. Order No. 220-F of 1995 dated 29-9- 1995) up to and including AICPI 1510 (January 1996 instalment -sanctioned vide Government Order No. 175-F of 1996 dated 10-6-1996) at prescribed rates. It may be pointed out here that there has been net enhancement in DA rates beyond July, 1995 instalment up to and including 1996 instalment as under :-

Basic pension/family Enhancement of DA beyond pension per month July, 1995 upto January, 1996 instalment

(a) Not exceeding Rs. 12% 1750/-p.m. SWP No. 631/2009 Page 9 of 16

(b) Exceeding Rs.1750/- 9% subject to minimum of but not exceeding Rs.210/-pm Rs.3000/-p.m.

(c) Exceeding Rs.3000/- 8% subject to minimum of pm Rs.270/-pm

9. Reading Article 242-CC(a) along with Govt. Order No.175-F of 1996 dated 10.06.1996, what becomes evident is that in terms of the provision of Article 242-CC(a), the government servants, who have retired between 01.01.1996 to 31.12.1997 have been given option to retain the pre-revised pay scale for the purposes of calculation of retiral benefits. The option is to be exercised within a period of three months from the date of issuance of Notification SRO 19 dated 19.01.1998. The petitioner having retired on 30.09.1997 has exercised the option and therefore, claims that his pension be fixed strictly as per the provisions of Article 242-CC(a). For calculating the pension of the petitioner in terms of Article 242-CC (a), the first step is to work out his emoluments and, as provided, his emoluments would mean basic pay plus DA as sanctioned upto 7/1995. Indisputably, it was @ 136% of the basic pay. The emoluments would also include interim relief (I) and (II) sanctioned vide Govt. Orders dated 02.02.1995 and 18.09.1995 respectively. There is no dispute that this interim relief admissible to the petitioner was 100 and 258 (10%) respectively. This would make the emoluments of the petitioner for the month of 12/1996 as Rs.6435/-. Worked similarly, the emoluments of the petitioner for the next nine months from 01.01.1997 to 30.09.1997 would come to Rs.59571 (6619 x 9). The total emoluments of the SWP No. 631/2009 Page 10 of 16 petitioner for the 10 months preceding his retirement would come to Rs.66006/-. That being the position, for the purposes of calculation of pension, the average emoluments of the petitioner for the 10 months preceding his retirement would come to Rs.6600.60/-. As noted above, upto this stage, there is no dispute between the petitioner and the respondents. What is, however, disputed is the calculation of the pension of the petitioner by following clause (ii) of the Article 242-

CC (a). The clause (ii) clearly provides that pension shall be calculated @50% of the average emoluments. That would mean the pension would be Rs.3300.30. It is further provided that to this pension would be added DA upto AICIP 1510 at the prescribed rate, sanctioned vide Govt. Order No.175-F of 1996 dated 10.06.1996. The applicability of the Govt. Order No.175-F of 1996 and the amount of DA to be added to the pension calculated in terms of clause (ii) of Article 242-CC (a) is the bone of contention between the petitioner and the respondent No.2. The respondent No.2 insists that there would be addition of DA @ 8% p.a. only which would further be subject to minimum of Rs.270/-. The respondents drive supports from the office memo dated 23.02.1998 to substantiate their claim.

10.On the other hand, the petitioner claims that he would be entitled to addition of DA @ 96% subject to the minimum of Rs.3330/ per month. It is this issue, which is more of technical than legal nature that has cropped up for determination in this petition.

11.I have given my thoughtful consideration to the contentions of the learned counsel for the petitioner and also heard the Senior Accounts SWP No. 631/2009 Page 11 of 16 Officer, who appeared for the respondent No.2 to explain the stand taken by the respondent No.2 in the objections.

12.On consideration of the matter in the light of the relevant provisions reproduced hereinabove, I am of the view that to the average emoluments of the petitioner worked out in terms of Article 242-CC

(a), there shall be an addition of D.A. only to the extent of 8% subject to the minimum of Rs.270/-, which would bring the pension payable to the petitioner to Rs.3571/- as has been indicated in the clarification issued by the Department of Finance vide its Memo dated 23.02.1998. The plea of the petitioner that in terms of clause (ii) of the Article 242-CC (a) of CSR, there ought to be addition of D.A. @ 96% subject to the minimum of Rs.3330/- per month, is not acceptable. This is so because the Government Order No. 175-F of 1996 dated 10.06.1996 clearly provides the rate of D.A. per month w.e.f. 01.01.1996 which includes the previous instalments as well. Since vide Govt. Order No.221-F of 1995 dated 29.09.1995, the rate of D.A. w.e.f. 01.07.1995 was 88% of the pension/family pension subject to the minimum of Rs.3060/- per month, as such, there is only an increase of 8% from 01.07.1995 till 10.06.1996. The D.A. sanctioned upto 01.07.1995 in terms of Govt. Order No.220-F of 1995 dated 29.09.1995 has already been taken into consideration while fixing the emoluments of the petitioner in terms of clause (i) of the Article 242- CC (a) of CSR. It is true that the Article 242-CC of CSR which was inserted vide SRO 19 of 1998 dated 19.01.1998 is not happily worded in so far as its clause (ii) is concerned. Because of some ambiguity SWP No. 631/2009 Page 12 of 16 created due to the inapt drafting of the provisions, there were doubts entertained in some quarters with regard to fixation of pension of the Government servant who had retired between 01.01.1996 to 31.12.1997 and had opted to retain the pre-revised scale of pay for the purposes of fixation of pension and DCRG etc. It is with a view to remove the doubts and steer clear the ambiguity, the Department of Finance, J&K Government came up with the clarification. I am not impressed by the arguments of learned Senior counsel appearing for the petitioner that the clarification would amount to adding something to Article 242-CC of CSR which does not exist in it. Equally untenable is the argument of learned counsel for the petitioner that the clarification issued by the Finance Department vide its office memo dated 23.02.1998 has the effect of amending the statutory provision by an executive fiat which is not permissible in law. The office memo dated 23.02.1998 only clarify the existing provisions of Article 242- CC of CSR and does not either add or subtract anything to the provision, i.e. Article 242-CC of CSR Volume-I. It may also be interesting to note that if the contention of the petitioner is accepted as correct then the petitioner would be in a position to draw the pension which is almost equal to, rather slightly more than the total emoluments last received by him at the time of retirement. Such position cannot be countenanced. As noted above, had the petitioner not opted for pre-revised pay scales in terms of Article 242-CC (a) of CSR, he would have received the pension of Rs. 4052/- in the revised pay scale which is substantially less than what is claimed by the SWP No. 631/2009 Page 13 of 16 petitioner on the basis of his interpretation of clause (ii) of Article 242-CC of CSR Volume-I. The stand of the respondents based on the clarification issued by the Finance Department vide memo dated 23.02.1998 is not in consonance with the clear and unequivocal provisions of Article 242-CC (a). The office memo dated 23.02.1998 which is clarificatory in nature cannot be assailed on the ground that it is in violation of statutory provision.

13.From reading of clause (ii) of Article 242 CC (a), it is abundantly clear that after working out the average emoluments in terms of the clause (i), the pension is to be calculated @50% and to the pension so calculated, the DA as sanctioned vide Govt. order No.175-F of 1996 dated 10.06.1996 is to be added. The D.A. which has already been taken into consideration at the time of working out the average emoluments of the petitioner, however, shall be excluded. This is evident from the language of the clause (ii) of the Article 242-CC of CSR, which provides that addition of D.A. sanctioned vide Govt. Order No.175-F of 1996 dated 10.06.1996, January 1996 instalment. Viewed thus, the amount of pension payable to the petitioner shall be in the following manner:-

i. Pension equivalent to 50% of the average emoluments i.e. Rs.

3300.30 ii. Add DA in terms of Govt. order No.175-F of 1996 dated 10.06.1996: Rs. 3330/-, i.e. @8% subject to minimum of Rs.270/- as clarified by the office memo dated 23.02.1998.

Total pension payable to the petitioner: 3301+270: Rs.3571/-per month w.e.f 01.10.1997.

SWP No. 631/2009 Page 14 of 16

14.No other interpretation of clause (ii) of Article 242-CC (a) would be permissible. The plea of the respondents predicated on office memo dated 23.02.1998 to the extent that addition to the pension calculated in terms of clause (ii) of Article 242-CC (a) shall only be of the enhancement of DA beyond 7/95 upto 01/96 instalment, is logical and furthers the intent of the provision (ii). There should be no misgiving that Article 242-CC (a) inserted vide SRO 19 dated 19.01.1998, is intended to provide only the option to a particular set of retirees to retain their pre-revised pay for the purpose of fixation of pension and was not an offering of bonanza.

15.For the foregoing reasons I am in agreement with learned counsel for the respondents that petitioner would be entitled to the benefit of addition of additional DA as sanctioned by the Govt. Order No.175-F of 1996 dated 10.06.1996. This DA would be added to the pension calculated in terms of clause (ii) of Article 242-CC (a) and while working out the emoluments for the purposes of fixation of pension not only the basic pay as defined in 27 (a) (ii) of CSR would be taken into account, but, the DA paid upto the instalment of July, 1995 sanctioned vide Govt. Order No.220-F of 1995 dated 29.09.1995 and interim relief (I) and (II) sanctioned vide Govt. orders issued on 02.02.1995 dated 18.09.1995 shall also form part of the emoluments. That being the position, the DA sanctioned from time to time upto July, 1995 shall subsume in the emoluments to be worked out in terms of clause (i) of Article 242 CC (a) and therefore, the pension payable to the petitioner shall have to be worked out by calculating it @ 50% SWP No. 631/2009 Page 15 of 16 of the average emoluments, which shall be calculated in the manner provided in clause (i) plus DA sanctioned vide Govt. Order dated 175-F of 1996 dated 10.06.1996 minus the D.A. already taken into consideration at the time of working out average emoluments of the petitioner.

16.It may be pertinent to observe herein that Article 240-A(v) of J&K Civil Service Regulations, which has been applied by the respondents to work out the pension of the petitioner shall not be applicable for the simple reasons that the same applies only to those government employees, who despite insertion of Article 242-CC (a) to the CSR had opted to have their pension fixed in the revised pay scale. This position was, however, clearly conceded by the respondents No.2. It was, however, argued that the pension of the petitioner under Article 240-A (v) of CSR was calculated only with a view to give benefit to the petitioner, who, as per respondent No.2, was getting lessor amount of pension in terms of Article 242- CC (a) J&K Civil Service Regulations.

17.For the foregoing reasons, I find no merit in this petition and the same is, accordingly, dismissed along with connected CM(s).

           Jammu                                                      (Sanjeev Kumar)
           30.05.2019                                                         Judge
           (Madan-PS)

                                    Whether the order is speaking : Yes/No.
                                    Whether the order is reportable : Yes/No




           SWP No. 631/2009                                                       Page 16 of 16
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