Central Administrative Tribunal - Delhi
Dr. O.P. Nijhawan vs Union Of India on 22 January, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI Original Application No.1750/2012 This the 22nd day of January, 2013 HONBLE SHRI JUSTICE SYED RAFAT ALAM, CHAIRMAN HONBLE SHRI BIRENDRA KUMAR SINHA, MEMBER (A) 1. Dr. O.P. Nijhawan, S/o Late Shri R.P. Nijhawan, Retired as Scientist G from Defence Research & Development Organization (DRDO), Ministry of Defence, Govt. of India, New Delhi At present R/o 21/B N Block, Saket, New Delhi 2. Dr. Narendra Kumar, S/o Late Shri Saleke Chand Jain, Retired as Scientist G Defence Research & Development Organization (DRDO), Ministry of Defence, Govt. of India, New Delhi At present R/o 49, Kadambini, Plot No.19, Sector IX, Rohini, Delhi 110 085 3. T. Lazar Mathew s/o T.L. Mathew, Retired as Scientist G from Defence Research & Development Organization (DRDO), Ministry of Defence, Govt. of India, New Delhi At present R/o EC-285, Maya Enclave, New Delhi 110 064 4. Dhirendra Kumar s/o Shri Kailash Prasad, Retired as Scientist G from Defence Research & Development Organization (DRDO), Ministry of Defence, Govt. of India, New Delhi At present R/o 16/204, Kailash Nagar, Vadvali Section, Ambernath East, Thane-421506 5. Dr. Arun Kumar Shah, S/o Shri Pooran Lal Shah, Retired as Scientist G from Defence Research & Development Organization (DRDO), Ministry of Defence, Govt. of India, New Delhi At present R/o 94, Dharampur Haridwar Road, Dehradun 6. Dr. Asit Baran Samul, S/o Late Shri Sudhir Chandra Samul, Retired as Scientist G from Defence Research & Development Organization (DRDO), Ministry of Defence, Govt. of India, New Delhi At present R/o B-303, Suyash Swaraj, Plot No.44 & 45, Sector-8, Kopar Khairane, Navi Mumbai-400709 7. Dr. Prabir Kumar Dutta, S/o Late Shri Prasad Chandra Datta, Retired as Scientist G from Defence Research & Development Organization (DRDO), Ministry of Defence, Govt. of India, New Delhi At present R/o Sudhalaya, 8 Ashok Row, Gangulibagan, P.O. Garia, Kolkata-700084 8. Mr. Purbendu Chatterjee, S/o Dr. Phanindra Nath Chatterjee, Retired as Scientist G from Defence Research & Development Organization (DRDO), Ministry of Defence, Govt. of India, New Delhi At present R/o C-14, Pocket-II, Kendriya Vihar-2, Sector-82, Noida-201 304 (UP) 9. Dr. Meena Kumari, D/o Late Shri Chunni Lal Dua, Retired as Scientist G from Defence Research & Development Organization (DRDO), Ministry of Defence, Govt. of India, New Delhi At present R/o 139, South Park, Kalkaji, New Delhi-110 019 APPLICANTS (Through Mr. Gyan Prakash, Advocate) VERSUS 1. Union of India Through Secretary, Ministry of Defence, South Block, New Delhi 110 001 2. The Secretary, Department of Defence Research & Development, Ministry of defence, Govt. of India, DRDO Bhawan, Rajaji Marg, New Delhi-110 005 3. Director General, Defence Research & Development Organization (DRDO), Ministry of Defence, DRDO Bhawan, Rajaji Marg, New Delhi 110 005 .RESPONDENTS (Through Mr. Krishan Kumar, Advocate) O R D E R (ORAL) By Birendra Kumar Sinha, Member (A):
The instant OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 not against any particular order but for implementation of the order of the Department of Defence Research and Development (DRDO), Ministry of Defence, Govt. of India dated 13.5.2009 providing for accounting of Special Pay granted @ Rs.2000/- p.m. to Scientist in the pay scale of Rs.18400-22400 w.e.f. 1.1.1996 and special pay of Rs.4000/- to the Scientists in the Pay Band-4 (Rs.37400-6700) with Grade Pay of Rs.10,000/- w.e.f. 1.1.2006 for pension and pensionary benefits.
2. The applicants have sought the following items of relief:
(i) Allow the present application.
(ii) Direct the respondents to revise the pension and pensionary benefits of the retired applicants (Scientist G in DRDO) in the present OA in terms of their own order dated 13.5.2009 under which the President has sanctioned that Special Pay of Rs.2000/- w.e.f. 1.1.2006 will count to pension and pensionary benefits to Scientists G in DRDO. As known to the applicants this orders has been fully implemented in the case of more than 40 Scientists G vide Annexure A- 27 who have retired from Defence Research & Development Organization and some of them have not approached Honble Tribunal or any Honble Court. Further, respondents have issue order on 29th March 2011 for about 66 Scientists G of DRDO for necessary revision of the PPO which has been implemented in most cases. The applicants in the present OA are fully covered by ratio of order of Honble Tribunal dt. 6.1.2011 and 7.1.2011 as given in Annexures A-21 and A-22. They are similarly placed Scientists G of DRDO as mentioned in order dated 29.3.2011. They are therefore entitled for the same revision of their pension and pensionary benefits in terms of respondents own order dated 13.5.2009. Any denial of retrial benefits to the applicants in present OA which has been granted to their several colleagues will be arbitrary and discriminatory and violative of article 14 & 16 of the Constitution of India and will be against law laid down by Honble Tribunal.
(iii) Direct the respondents to pay arrears of pension and pensionary benefits to the applicants taking into account Rs.2000/- or Rs.4000/- as special pay and also interest if revision of pension and pensionary benefits takes unduly long period.
(iv) Any other relief which Honble Tribunal may deem proper an just in the interests of justice and equity, keeping in view the facts of the case and retired status of applicants.
(v) The respondents may be directed to produce records on fixation of pension of the applicants and also other Scientists whose pension has been revised after taking into account special pay and also other relevant records before Honble Tribunal for their kind perusal with copy of the applicants counsel. Case of the applicants -
3. Admittedly, all the 9 applicants are Scientist G from DRDO, Ministry of Defence who have retired from service. Prior to the 5th Pay Commission the Scientist G in DRDO were drawing the pay in the scale of Rs.5900-7300 along with Scientist/Engineers-H working in the Department of Atomic Energy (DAE) as also the Department of Space (DOS). The 5th Pay Commission set up by the Government of India sought to create a parity between the Scientist of the aforementioned groups with the Joint Secretaries to Govt. of India. The Commission, therefore, recommended a replacement scale of Rs.5900-7300 and Rs.5900-6700 with a revised pay scale of Rs.18400-22400. Since the scale of Rs.5900-6700 had been associated with the post of Joint Secretary/equivalent, the Scientists of the aforementioned three Scientific Departments, i.e. DRDO, DOS and DAE made a case for suitably compensating the Scientists/Engineers in the pay scale of Rs.5900-7300 (pre-revised). The Government taking all factors into account decided to grant a special pay of Rs.2000/- p.m. to these categories of Scientists in the replacement pay scale of Rs.18400-22400 in lieu of a higher pay scale followed by a review from 1.1.1996. The three Departments, under consideration, issued orders to this effect after having obtained prior approval of the Cabinet on a Combined Cabinet Paper. In the year 2002, the Scientists from the DOS filed an OA No.1153/2002 before the Principal Bench of the CAT seeking direction to the respondents to treat the special pay of Rs.2000/- p.m. as pay for computing etc. with all consequences. The Principal Bench vide its order dated 14.5.2003 set aside the order issued vide the OM dated 12.8.1999 with regard to non-inclusion of special pay for the purpose of pension and directed the respondents to reconsider and take appropriate decision for grant of special pay of Rs.2000/- p.m. as a part of the pay w.e.f. 1.1.1996. In other words, this special pay would be reckoned for calculation of pension and other retrial benefits. The other two Departments also decided to comply with these orders. In the year 2002 some employees of the DOS vide OA No.1153/2002 sought direction to the respondents to treat the special pay of Rs.2000/- p.m. as a part of the pay for computing pension/retiral benefits with all consequences thereof. The Principal Bench vide its decision dated 14.5.2003 quashed the OM with regard to non-inclusion of special pay as part of the pay for the purpose of pension dated 3.1.1999 and directed the respondents to reconsider and take appropriate decision to:
The respondents are accordingly directed to reconsider the matter and take an appropriate decision in the matter of including the grant of special pay of Rs.2000/- p.m. to Scientists / Engineers H in the Department of Space/ISRO w.e.f. 1.1.1996 as part of pay, keeping in view the aforesaid observations.
4. The special pay of Rs.2000/- p.m. was revised to Rs.4000/- p.m. w.e.f. 1.1.2006 as a consequence of the acceptance of the recommendations of the 6th Pay Commission. Some other similarly placed Scientists aggrieved by non-reckoning of the special pay of Rs.2000/- for post-pension and other post-retiral dues approached the Hyderabad Bench of the Central Administrative Tribunal which directed the respondents to re-consider the case of the applicants and if it is found that the applicant are similarly situated to that of applicant before the Principal Bench in OA-1153/2002 they shall extend the benefits to the applicants herein in the same manner as has been done by DOS and DAE. In yet another case same very benefit was extended to the applicants at the admission stage itself vide the order dated 23.4.2007 in OA-268/2007 of the Hyderabad Bench of the Central Administrative Tribunal. The order of the Principal Bench of the Central Administrative Tribunal dated 14.5.2003 came up before the Honble Delhi High Court vide WP (C) No.1710/2007 on the ground that the judgment of the Tribunal stood implemented which not only upheld the decision of the Principal Bench but also imposed a cost upon the petitioners with direction to implement the same. The Honble High Court of Andhra Pradesh also found a challenge to this vide WP (C) No. 267/2008 devoid of merit and directed the Union of India to implement the orders.
5. Some similarly placed Scientists approached the Bangalore Bench of the Central Administrative Tribunal which directed the Union of India and DRDO to implement the order. The matter again came up before the Principal Bench on account of non-implementation of their order dated 13.6.2009 directing counting of special pay for pension and pensionary benefits vide OA No. 2509/2010 wherein the Principal Bench directed extension of the benefit to the applicants in the particular OA. In yet another OA, namely, OA-306/2010 similar directives were issued to the respondent-Organization vide the order dated 7.1.2011 and again in OA-4034/2011 of Principal Bench in its order dated 29.3.2012. The Government, in the meantime, moved an SLP against the decision of the Hyderabad Bench of CAT dated 29.3.2007 in OA-184/2006 as upheld by the Andhra Pradesh High Court which was dismissed by Honble Supreme Court in SLP No. 4842/2009 leaving the question of law open, issued an order, which reads as under:-
In view of the above facts and circumstances, I direct the respondents to re-consider the case of the applicants and if it is found that the applicants are similarly situated to that of applicant before the Principal Bench in OA 1153/2002 they shall extend the benefits to the applicants herein in the same manner as has been done by DOS and DAE. Respondents shall pass appropriate order within a period of two months from the date of a copy of this order.
6. Now the applicants in the instant OA have approached seeking a direction to the respondents to implement this order in their respect as well.
7. The learned counsel for the respondents has vehemently opposed the case on the ground that under Rule 9 (21) (a) (i) of the Fundamental Rules that Pay means the amount drawn by a Government servant but does not include special pay or pay granted in lieu of his personal classifications. Therefore, special pay of any kind does not form a part of the emoluments to be reckoned for the purpose of pensionary benefits in CCS (Pension) Rules, 1972. The Honble Supreme Court while disallowing the SLP had left the question of law open. The decision to extend the benefit of the Honble Tribunal to Scientists across the Board to treat the special pay as part of the pay for pension purposes in all similar cases is a matter of Government policy. The Government had decided that such a concession cannot be granted across the board. In view of such clear formulation in Rule 33 of the CCS (Pension) Rules, 1972 and Rule 9 (21) (a) (i) of the Fundamental Rules, this matter cannot be considered, as an issue settled in law.
8. The applicants have filed a rejoinder stating therein that the orders of the Principal Bench in OA-1153/2002 dated 14.5.2003 has been upheld by the Honble High Court of Delhi in the WP (C) No.1710/2007 vide its decision dated 15.5.2008 and was never challenged before the Honble Supreme Court, as such the decision dated 15.5.2008 of the High Court has attained finality and cannot be re-agitated.
9. The case of the applicants is squarely covered by the decisions in OA-2509/2010 vide order dated 6.1.2011 and OA-306/2010 vide order dated 7.1.2011.
10. The applicants have relied upon the following cases:
(1) D.S.Nakara vs. UOI, (1983) 1 SCC 305 (2) Menaka Gandhi vs. UOI & Other, (1978) 1 SCC 248 (3) Amrit Lal Berry vs. Collector Central Excise, AIR 1975 SC 538 (4) A.K.Khanna & others vs. UOI & others, ATR 1988 (2) CAT 518.
(5) Dakshin Haryana Bijli Vitran Nigam and others vs. Bachan Singh, (2009) 14 SCC 793 (6) Girdhari Lal vs. UOI, (SLP No.14003/1992)
11. The only issue to be considered here is that whether the Government is bound by its order issued vide OM dated 13.5.2009 and by the decision in the aforementioned cases to extend the benefits of a special pay to all similarly situated Scientists across the Board or it shall continue to be selectively applied to those who come before the Tribunal for this purpose. The admitted position of case under Rule 9 (21) (a) (i) of Fundamental Rules is as follows:
the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity, or to which he is entitled by reason of his position in a cadre
12. In other words, special pay and pay granted in lieu of personal qualification have been excluded from the ambits of pay and are not to be reckoned for pensionary benefit purposes. Rule 33 of the CCS (Pension) Rules, 1972 relies upon this position to exclude the special pay from the term emoluments to be reckoned for pension and for purposes of post-retiral dues. Rule 33 provides:
The expression emoluments means basic pay as defined in Rule 9 (21) (a) (i) of the Fundamental Rules which a Government servant was receiving immediately before his retirement or on the date of his death; and will also include non-practising allowance granted to medical officer in lieu of private practice. These provisions admittedly point to the fact that special pay is not to be included in the term emoluments being reckoned for pension and for purposes of post-retiral dues.
13. It is also to be taken into consideration that the order dated 13.5.2009 clearly provides that to convey the sanction of the President to count the special pay of Rs.2000/- per month granted to Scientist in the pay scale of Rs.18400-22400 with effect from 01 Jan 1996 and special pay of Rs.4000/- to Scientist in Pay Band-4 (Rs.37400-6700) with Grade Pay of Rs.10000/- with effect from 01 Jan 2008 for pension and pensionary benefits. Of course, this provision is subject to the further legal recourse available to Government of India. In other words, this implies that the benefits of para 1 of this order are to be extended to all persons included within the eligible categories in the pay scale of Rs.18400-22400 before 1.1.1996 and pay scale of Rs.37400-67000 in PB-4 with grade pay of Rs.10,000/- w.e.f. 1.1.2006. Merely being in these pay bands on the dates mentioned would create entitlement for the special pay being included in pay for pension and post retrial benefits. This is clearly not under doubt. We are strongly of the opinion that all similarly situated eligible Scientists need not approach this Tribunal every time they retire for extension of this benefit to their pension and post retrial dues. Once the entitlement has been created, the same will continue unless and until rescinded or ordered otherwise.
14. However, the order dated 13.5.2009 has clearly not admitted the afore-indicated position as a matter of general rule. Having described the conditions under which this order was being issued, the judgment of the Honble Supreme Court in SLP No.4842/2009 renders the question of law open to be settled at a future point of time. The question of law is as we have discussed above. It has already been appreciated that the provision of Rule 33 of the CCS (Pension) Rules, 1972 is routed to FR 9 (21) (a) (i) which is the basic position governing pensions for all Central Government services. Unless this rule is to be amended or rescinded, the legal position will clearly continue that special pay is not a part of pay for pension and pensionary purposes. Therefore, the concession made to the Scientist of Group G rather gives as an expansion to the rule and not as a part of the rule. Here the Government of India cannot be faulted for taking this decision.
15. Now we also to have a look at what the different Courts have provided. First of the cases to be referred is that of D.S.Nakara vs. Union of India (supra). In this case the Honble Supreme Court has clearly debunked the notions of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right. The Court has reiterated the earlier position in the case of Deoki Nandan Prasad v. State of Bihar, 1971 (Supp) SCR 634 : (AIR 1971 SC 1409) holding that pension is a right and its payment does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within the ambit of those rules is entitled to claim pension. The Honble Supreme Court in the instant case has reiterated the ratio propounded in Dodge v. Board of Education, (1937) 302 US 74: 82 Law Ed 57 that pension is closely akin to wages and in that it consists of payment provided by an employer in consideration of past service to help the recipient meet the expenses of living. It is a measure of socio-economic justice. However, in D.S.Nakaras case (supra) what was under challenge was not the validity of pension liberalization scheme but that it should be uniformly enforced with regard to all pensioners for the purpose of computation. The issue involved in the instant case is similar that once the Court has bestowed the benefits to some persons why it should not extend to others who are similarly situated. The Honble Supreme Court in this clearly held that Article 14 does not rule out classifications. However, the same should be based on reasonable intelligible differentia. Therefore, the Honble Court has struck down the distinction between the persons retiring on 31.3.1979 or after that making the new pension rates available w.e.f. 1.4.1979.
16. The second case which the applicants have relied upon is that of Menaka Gandhi vs. UOI & others (supra). In this case the petitioner has been issued a passport on June 1, 1976 under Passport Act. On 4.7.1977 the petitioner received a letter that on 2.7.1977 conveying the Government decision to impound her passport under Section 10 (3) (c) of the Passport Act, 1967 in public interest. The petitioner was required to surrender her passport from seven days of receipt of that letter. The petitioner requested the Regional Passport Officer to furnish to him the reason for this act. The petitioner challenged the order inter alia on the grounds of natural justice. The order made in contravention of principles of natural justice was null and void. The Honble Supreme Court by a majority upheld the right of the petitioner to be heard before the passport any order so passed under Rule 10 (3) subject to scrutiny by the Supreme Court. Here the case under consideration is not that of impounding of passport. Of course, the ratio propounded in the case of Maneka Gandhi vs. Union of India (supra) will be held universally applicable.
17. The third case which the applicants have relied upon is that of Amrit Lal Berry vs. Collector Central Excise (supra). The basic issued involved in this case was that the applicant filed a petition complaining that though they were entitled to promotion they were not promoted despite being confirmed. Amrit Lal Berry was appointed as Custom Central Excise Inspector in Delhi while his immediate junior Narender Singh was only a matriculate appointed on 17.4.1979. Despite being a graduate the applicant was not promoted while 14 of his juniors were promoted. The Honble Supreme Court found the action of the respondents in violation of Article 16 (1) of the Constitution and found patent error on the face of it in the action of the respondents. However, here again the facts of the case are different.
18. Another case relied upon by the applicant is that of Dakshin Haryana Bijli Vitran Nigam and others vs. Bachan Singh (supra). In this case the applicants have joined as Laboratory Assistant in that capacity and so continued until regularized as Head Mistry w.e.f. 14.10.1981. The applicants got retired but the respondents left out the period under work charge out of the calculation while reckoning the period for pension and pensionary benefits. The Honble Supreme Court found the action of the applicants discriminatory and agreed with the Honble High Court which had struck down the same and hold that the period of service as a work charge employee is to be reckoned for pension and post-retrial dues. Again the ratio would not apply to the facts of the instant case as the question involved is different.
19. The next case relied upon by the applicant is that of Girdhari Lal vs. Union of India (supra). In the instant case the applicant claimed the benefit of a judgment of the Tribunal in TA No.19/1995 decided on 24.9.1997 in Balwant Singh and others vs. Union of India, as if he too were a party therein. The Honble Supreme Court held therein:
In view of the decision of the Honble Tribunal in TA No.319/1985 it is appropriate that the Union of India treat all much persons alike and to grant them the same benefits instead of driving each one of them to litigation in the course of which the Union of India itself is required to spend considerable public money. This aspect appears to have been overlooked also by the Honble Tribunal.
20. This position of the Honble Supreme Court is very relevant to the facts of the instant case.
21. In conclusion we would like to take a case leaf out of the case of Girdhari Lal vs. Union of India (supra). The Government itself has extended the benefit of the decisions cited vide the order dated 13.5.2009 to the Scientists falling within the eligible categories without making a distinction of the date of retirement or between those who came to this Tribunal and those who did not. We have also seen that admittedly the concession of including the special pay as a part of the emoluments to be reckoned for pension and post retrial benefits has been given as a measure of exception and there has been no change in rules which continue to hold good. Further, the Government reserves the right of taking recourse to legal remedies as the matter of law has been left open. We, therefore, respect this position emerging and only hold that the respondent authorities should provide the benefits of the OM dated 13.5.2009 irrespective of the fact that whether the eligible persons have come to this Court or not. It has to be appreciated that where all the eligible persons come to this Court turn by turn, it would impose a serious efficiency burden upon functioning of this Tribunal and also cause harassment and expenses to the applicants. This, in short is also likely to be a wasteful exercise thereby exposing this Central Administrative Tribunal to directly unproductive and futile exercise. Hence the following directives are given:
(1) The claim of the applicants are allowed for reckoning the special pay of Rs.2000/- admissible from 1.1.1996 and Rs.4000/- admissible from 1.1.2006 in the respective grade pays as enumerated in the OM dated 13.5.2009 for pension and pensionary purposes.
(2) It is further directed that those who fall within the eligible categories as cited above are to be allowed this benefit without their being required to approach this Tribunal.
(3) This, of course, is a measure of exception and leaves the question of law undetermined.
(4) There shall be no order as to costs.
( Birendra Kumar Sinha ) ( Syed Rafat Alam ) Member (A) Chairman /sunita/