Madras High Court
Union Of India (Uoi), Represented By The ... vs K.S. Krishnaswamy And Anr. on 29 April, 2005
Equivalent citations: 2005(2)CTC661, (2005)3MLJ310
Author: T.V. Masilamani
Bench: T.V. Masilamani
ORDER R. Balasubramanian, J.
1. The first respondent in W.P.Nos. 24444/2001 to 24451/2001 is the respective pensioner retired from Government of India service. The writ petitioner in W.P.No. 14913/2002 is the first respondent/pensioner in W.P.No. 24450/2001. The first respondent in W.P.No. 30047/2002 and W.P.No. 32527/2004 are again the respective pensioner retired from Government of India service. The writ petitioner in W.P.No. 45135/2002 is yet another pensioner retired from Government of India service. Each of the pensioner in W.P.Nos. 24444/2001 to 24451/2001 went before the Central Administrative Tribunal, Madras Bench by way of separate applications claiming payment of pension calculated on the minimum scale of pay of Rs. 14,300 - 18,300 - the revised pay scale introduced with effect from 01.1.1996. Incidentally, any individual order passed against them denying such pension benefit was sought to be quashed. All those applications were taken up on file by the Central Administrative Tribunal, Madras Bench as O.A.Nos. 432 to 438/2000 and 639/2000. By a common judgment dated 21.6.2001, all the original applications were ordered granting the substantial relief namely, each of the pensioner is entitled to the benefit of the office memorandum dated 17.12.1998 and that their pension has to be calculated on the minimum pay scale on Rs. 14,300 - 18,300, being the revised pay scale introduced with effect from 01.1.1996 and fixed a time schedule for compliance of the said order. The writ petitioner in W.P.No. 14913/2002 challenges O.M.No. 45/86/97 dated 11.5.2001. In W.P.No. 30047/2002, the Union of India is challenging the relief granted to the first respondent therein/pensioner by the Central Administrative Tribunal, Madras Bench in O.A.No. 181/2001. In that case, the pensioner went before the Tribunal to set aside the order denying him his fixation of pension on the revised pay scale introduced with effect from 01.1.1996 and for fixation of his pension on the revised pay scale namely, Rs. 14,300 - 18,300. The Tribunal allowed the original application and granted the relief directing the authorities concerned to fix the pension payable to the pensioner at not less than 50% of the corresponding pay scale as on 01.1.1996 on the scale of Rs. 4,500 - 5,700 drawn by him at the time of his superannuation on 31.5.1986. In W.P.No. 45135/2002 the pensioner is the writ petitioner. He went before the Central Administrative Tribunal, Madras Bench in O.A.No. 1307/2001 for a direction to the concerned authority to fix his pension on the revised pay scale of Rs. 14,300 - 18,300 with effect from 01.1.1996, which was negatived by the Tribunal taking into account the office memorandum dated 11.5.2001. In W.P.No. 32527/2004 the Union of India is challenging the order in O.A.No. 953/2003 on the file of the Central Administrative Tribunal, Madras Bench, directing the fixation of the pensioner's pension on the basis of the office memorandum dated 17.12.1998. The pensioner's case is that his pension must be fixed on the revised pay scale of Rs. 24,050 - 26,000 introduced with effect from 01.1.1996 in replacement of his earlier pay scale of Rs. 22,400 - 26,000.
2. Heard the learned Additional Solicitor General for the Union of India; Mr. K. Subramaniam learned Senior Counsel appearing for the pensioners in W.P.Nos. 24444/2001 to 24451/2001 and for the petitioner in W.P.No. 14913/2002; Mr. L. Chandrakumar; M/s. Paul & Paul and Mr. S. Muthukumar for the pensioners in the other three writ petitions. Learned Additional Solicitor General would submit that the pensioners' pension in this case, if has to be fixed on the basis of the office memorandum dated 17.12.1998, then, as directed in that office memorandum, it shall not be less than 50% of the minimum of the revised scale of pay introduced with effect from 01.1.1996 for the post last held by the pensioner at the time of his retirement. Admittedly, on the date of retirement, the pensioners in W.P.Nos. 24444/2001 to 24451/2001 and the pensioner in W.P.No. 14913/ 2002 (he is the pensioner in W.P.No. 24450/2001) were drawing a pay in the scale of pay of Rs. 1,500-2,000, having reached the maximum. They were all working as the Superintending Engineer at that time. All of them retired before the recommendation of the 4th Pay Commission. That scale of pay namely, Rs. 1,500-2,000 received by each one of them on the date of their retirement was stepped up to Rs. 3,700 - 5,000 pursuant to the recommendation of the 4th Pay Commission, which again correspondingly was stepped up to Rs. 12,000 - 16,500 consequent to the recommendation of the 5th Pay Commission with effect from 01.1.1996. They having retired even prior to the 4th Pay Commission recommendation, as per the O.M dated 17.12.1998, their pension was fixed after the 5th Pay Commission recommendation calculated on the pay scale of Rs. 12,000 - 16,500 correctly. There was a selection grade with a pay scale of Rs. 2,000 - 2,250, which was increased to Rs. 4,500 - 5,700 after the 4th Pay Commission recommendation with effect from 1.1.1986 and again it was increased to Rs. 14,300 - 18,300 with effect from 1.1.1996 after the 5th Pay Commission recommendation. None of the pensioners were receiving pay in the pay scale of Rs. 2,000 -- 2,250 prior to the date of their retirement (all the pensioners are shown to have retired between 1983-1985) and therefore the corresponding increase given to that pay scale would not be to the advantage of the pensioners. Learned Additional Solicitor General would then submit that the proceedings No. 310/169/97-B(D) dated 18.12.1997 of the Ministry of Information and Broadcasting would not apply retrospectively but only apply prospectively and in any event, it would not apply to pensioners. In other words, those who were actually working as on 01.1.1996 with the qualifying 13 years of service as on that day alone would be entitled to the benefit of the proceedings dated 18.12.1997 and since all the pensioners have retired between 1983 and 1985, it will not be applicable at all to them. Learned Additional Solicitor General would then submit that in any event under the clarificatory O.M dated 11.5.2001, it is made clear that the revised pay scale introduced as on 01.1.1996 should correspond to the scale of pay held by the pensioner at the time of their superannuation and retirement. Since all the pensioners represented by Shri. K. Subramaniam learned Senior Counsel were drawing a scale of pay of Rs. 1,500 - 2,000 only on the date of their retirement, their pension has to be fixed only on the revised pay scale of Rs. 12,000 - 16,500 as introduced with effect from 01.1.1996. Learned Additional Solicitor General would then submit that whatever right any pensioner has, it gets crystalised on the date of his superannuation and therefore all pension benefits that accrues to the pensioner thereafter would be based only on those rights that were in existence on the date of his retirement in the context of any corresponding revision. Learned Additional Solicitor General cited a number of authorities for the above position and we will refer to it later on, if need arises, in this order.
3. On the contra, Mr. K. Subramaniam learned Senior Counsel appearing for the pensioners mentioned earlier would submit that the Government of India, as a policy decision, announced certain benefits to the pensioner in the office memorandum dated 17.12.1998. It is an executive action taken under Article 77 of the Constitution of India. The clarificatory office memorandum dated 11.5.2001 is not in accordance with Article 77 of the Constitution of India, since it is not shown to have been issued in the name of the President while the office memorandum dated 17.12.1998 is issued in the name of the President. Therefore, having regard to the constitutional protection given to the office memorandum dated 17.12.1998 under Article 77 of the Constitution of India, the rights given to the pensioner under that instrument cannot be taken away by the proceedings dated 11.5.2001 relied upon by the learned Additional Solicitor General, which is only a decision taken at the lower level. Therefore the submission is that, as the proceedings dated 11.5.2001 is not in compliance of Article 77 of the Constitution of India, it must be struck off. Then the learned Senior Counsel submitted that once the Government of India takes a policy decision to give certain benefits to the pensioners, it is not open to the court to test the correctness or otherwise of the said policy decision, so long as it is not in violation of any provision of law and found to be arbitrary. The office memorandum dated 17.12.1998 must be read along with the proceedings dated 18.12.1997 and if so read, the pensioner's right to claim pension calculating the same on Rs. 14,300 - 18,300 cannot be denied. Learned Senior Counsel, relying upon the proceedings dated 18.12.1997, would submit that when the office memorandum dated 17.12.1998 was brought into force, it must be held that they had the proceedings dated 18.12.1997 in their mind. All the pensioners, for whom he appears, have put in more than 13 years of service and therefore reading the proceedings dated 18.12.1997, it can be easily said that all the pensioners were in the upgraded revised pay scale of Rs. 14,300 - 18,300 and if that is accepted, under the office memorandum dated 17.12.1998, each pensioner shall not get less than 50% of the pay last drawn by them.
4. As far as the pensioner in W.P.No. 30047/2002 is concerned, the learned Additional Solicitor General submitted that he was on deputation to Maha Nagar Telephone Nigam Limited (MTNL) as a Senior Finance Manager with effect from the afternoon of 3.4.1986 on a pay scale of Rs. 4,500 - 5,700 at that time and that he retired from service in that post on 31.5.1986. However his scale of pay in the parent department namely, the Department of Telecom as a Director, was only Rs. 3,700 - 5,000. Any service rendered by him on deputation drawing a higher scale of pay would not enure to his benefit while fixing his pension, since as per Note 7 to Rule 33 of C.C.S (Pension) Rules, 1972, the pay drawn by the Government servant while on foreign service shall not be treated as emoluments for the purpose of pension. On the other hand, the pay he would have drawn under the Government (parent department) had he not been on foreign service, shall alone be treated as emoluments for the purpose of fixing his pension. Since admittedly his scale of pay in the parent department was Rs. 3,700 -5000, which stands stepped up to Rs. 12,000 - 16,500 pursuant to the 5th Pay Commission recommendation, his pension has to be fixed only on that basis and not on the basis of the corresponding pay fixation of Rs. 14,300 - 18,300 in the replacement of the pay scale of Rs. 4,500 - 5,700. Therefore the submission is that, the Tribunal erred in law in failing to note this distinction. Mr. L. Chandrakumar learned counsel for the pensioner, relying upon the pay drawn by the pensioner as indicated above while he was on foreign service, contended that the order of the Tribunal is in order. The pensioner in W.P.No. 45135/2002 would attack the Tribunal's order denying the relief based on the clarificatory memorandum dated 11.5.2001 on the same ground as urged by the learned Senior Counsel appearing for the pensioner in W.P.No. 14913/2002. Mr. V.T. Gopalan learned Additional Solicitor General, in meeting the arguments in W.P.No. 14913/2002 and W.P.No. 45315/2002 on the validity of the memorandum dated 11.5.2001, would submit that the said memorandum is also issued in accordance with Article 77 of the Constitution of India and therefore it is binding. Dummy file on that transaction is produced before us in the chamber on 26.4.2005 by the learned Additional Solicitor General of India. Union of India in W.P.No. 32527/ 2004 would attack the order of the Tribunal on the ground that the pay scale of three posts of members were identified for upgradation of Rs. 24,050 - 26,000 only with effect from 1.1.1996 vide proceedings dated 30.6.99 by the Ministry of Finance and therefore it is only prospective in nature and not retrospective. It is his further submission that the pensioner held the post of member only upto 30.9.1993 and therefore his pension was fixed with reference to the pay scale, which he was drawing on that day. The pay scale drawn by him on 30.9.1993 was revised to Rs. 22,400 - 26,000 with effect from 1.1.1996, on which his pension was also correspondingly revised. Therefore the pensioner is not entitled to have his pension fixed on the pay scale of Rs. 24,050 - 26,000. Mr. S. Muthukumar learned counsel appearing for the pensioners would submit that at all times there were only three posts of members in the Board and therefore upgradation of the pay scale of members to Rs. 24,050 -26,000 would equally apply to his client.
5. Let us now decide whether the clarification dated 11.5.2001 issued on office memorandum dated 17.12.1998 is an executive action taken in accordance with Article 77 of the Constitution of India or not. Mr. K. Subramaniam learned Senior Counsel appearing for some of the pensioners would state that the clarification dated 11.5.2001 is not expressed to be taken in the name of the President where as the office memorandum dated 17.12.1998 is expressed to be taken in the name of the President. Therefore the clarification dated 11.5.2001, not in accordance with the requirement of Article 77 of the Constitution of India, has to be necessarily ignored. Learned Senior Counsel would submit that since the executive action taken by issuing the office memorandum dated 17.12.1998 is in accordance with Article 77(1) of the Constitution of India, the rights that flow to the pensioners under that proceeding, if at all can be interfered with, can be only by another office memorandum expressed to be taken in the name of the President. That has not been done in this case. The clarification dated 11.5.2001 appears to have been done, on the face of it, by the authority at the lower level and such a proceeding taken by the authority at the lower level - not being an authority entrusted with that work under Article 77 of the Constitution of India, is not valid at all. Mr. V.T. Gopalan learned Additional Solicitor General would submit that though the clarification is not expressed to be taken in the name of the President, yet from the file it could be seen that it has been done in accordance with the Rules of business issued by the President under Article 77(3) of the Constitution of India and the said clarification stands signed by the Ministers concerned. Having regard to the submissions made by the learned Senior Counsel on either side, we perused the file. From the file it is seen that the subject matter of clarification was put up before the Minister of State and Minister of Finance and they have signed. At the foot of the relevant page, there is an endorsement "Prime Minister approved", which stands authenticated by the Secretary Personnel/Director attached to the Prime Minister's Office. The question is, in the context of the above aspects, namely, the respective Ministers signing and the Prime Minister approving, the very fact that the said clarification is not expressed to be taken in the name of the President would by itself invalidate the order ?
6. Article 77 of the Constitution of India deals with the conduct of business of the Government of India while Article 166 of the Constitution of India deals with the conduct of business of the Government of a State. The provisions under both the Articles are verbatim the same. In Dattatraya Moreshwar v. State of Bombay, AIR 1952 SC 181, a Constitution Bench was considering a challenge to the order of the Government confirming the detention order. The challenge was on the ground that the State Government failed to comply with the requirements of Section 11(1) of the Preventive Detention Act, 1950. In that context, the Constitution Bench held as hereunder:
"Strict compliance with the requirements of Article 166 gives an immunity to the Order in that it cannot be challenged on the ground that it is not an order made by the Governor. If, therefore, the requirements of that Article are not complied with, the resultant immunity cannot be claimed by the State. This however does not vitiate the order itself ........ Article 166 directs all executive action to be expressed and authenticated in the manner therein laid down but an omission to comply with those provisions does not render the executive action a nullity ....... such a decision has been in fact taken by the appropriate Government is amply proved on the record."
In another judgment of the Hon'ble Supreme Court of India in the case reported in State of Bombay v. Purushottam Jog Naik, AIR 1952 SC 317 a three Judges Bench of the Supreme Court held, while considering Article 166(1) of the Constitution of India, as hereunder:
"The Constitution does not require a magic incantation which can only be expressed in a set formula of words. What the Court has to see is whether the substance of the requirement of Article 166(1) is there."
In Major E.G. Barsay v. State of Bombay, AIR 1961 SC 1762 the Hon'ble Supreme Court of India, while considering the scope of Article 77 of the Constitution of India, held as hereunder:
"Article 77(1) is only directory. Though an impugned order was not issued in strict compliance with the provisions of Article 77(1), it can be established by evidence aliunde that the order was made by the appropriate authority. If an order is issued in the name of the President and is duly authenticated in the manner prescribed in Article 77(2) there is an irrebuttable presumption that the order is made by the President. Where the impugned order does not comply with the provisions of Article 77(2) it is open to the party to question the validity of the order on the ground that it was not an order made by the President and to prove that it was not made by the Central Government. Where however the evidence establishes that the order was made by the Deputy Secretary on behalf of the Central Government in exercise of the power conferred on him under the rules delegating such power to him the order cannot be questioned."
In Chitraleka R v. State of Mysore, AIR 1964 SC 1823, a Constitution Bench of the Supreme Court, after referring to the judgment of the Supreme Court in the case reported in State of Bombay v. Purushottam Jog Naik, AIR 1952 SC 317 referred to supra, held that it is settled law that provisions of Article 166 of the Constitution are only directory and not mandatory in character and if they are not complied with, it can be established as a question of fact that the impugned order was issued in fact by the State Government or the Governor. A Division Bench of this court headed by the then Chief Justice in the case reported in Avana Nadar v. Union of India, 1987 (2) LLN 143, following the above referred to judgments, sustained the executive action taken in that case holding that the said order was in strict compliance to Rule 3 of the Government of India (Transaction of Business) Rules, 1961 - the Rules were made exercising power under Article 77(3) of the Constitution of India. From the above decided case laws, it is clear to our mind that though ex facie the clarification dated 11.5.2001 is not expressed to be taken in the name of the President, yet this Court can go into the records to find out whether such an executive action is in conformity with Article 77 of the Constitution of India or not. In this context, we also respectfully refer to a judgment of a nine Judges Constitution Bench of the Supreme Court in the case reported in S.R. Bommai v. Union of India and Ors., 1994 (3) SCC 1, wherein the Hon'ble Judges have laid down the law as hereunder:
"(240) Articles 74 and 77 are in a sense complimentary to each other, though they may operate in different fields. Article 74(1) deals with the acts of the President done "in exercise of his functions", whereas Article 77 speaks of the executive action of the Government of India which is taken in the name of the President of India. Insofar as the executive action of the Government of India is concerned, it has to be taken by the Minister/official to whom the said business is allocated by the rules of business made under Clause (3) of Article 77 for the more convenient transaction of the business of the Government of India. All orders issued and the instruments executed relatable to the executive action of the Government of India have to be authenticated in the manner and by the officer empowered in that behalf. The President does not really come into the picture so far as Article 77 is concerned. All the business of the Government of India is transacted by the Ministers or other officials empowered in that behalf, of course, in the name of the President. Orders are issued, instruments are executed and other acts done by various Ministers and officials, none of which may reach the President or may be placed before him for his consideration. There is no occasion in such cases for any aid and advice being tendered to the President by the Council of Ministers. Though expressed in the name of the President, they are the acts of the Government of India. They are distinct from the acts of the President "in the exercise of his functions" contemplated by Article 74."
Therefore the law is well settled now that Article 77 of the Constitution of India is not mandatory but only directory in character. In this case the clarification dated 11.5.2001 is not expressed to be taken in the name of the President. Therefore we have decided to go through the file produced by the learned Additional Solicitor General to find out whether the clarification dated 11.5.2001 is in compliance to the requirement of Article 77 of the Constitution of India. On going through the file, we have seen that apart from the Minister of State and the Minister of Finance signing the proceedings, there is an endorsement namely, "Prime Minister approved", under the authentication of the Secretary Personnel/Director of the Prime Minister's Office. The said proceeding has come to be issued by the appropriate authority namely, the Ministry, and Rule 3 of the Government of India (Transaction of Business) Rules, 1961 issued under Article 77(3) of the Constitution of India enables such decision to be taken by the concerned Ministry. Accordingly we conclude that the clarification dated 11.5.2001 is valid and it is an executive action taken by the Government of India in accordance with the Rules framed under Article 77(3) of the Constitution of India. The next question is, what is the impact of the clarification dated 11.5.2001 on the office memorandum dated 17.12.1998? The Hon'ble Supreme Court of India had an occasion in the judgment reported in S.S. Grewal v. State of Punjab and Ors., 1993 Supp (3) SCC 234 to consider what would be the effect of the clarification issued by the Government at a later date. In that context, the Supreme Court, on principles of Statutory construction, held that a Statute which is explanatory or clarificatory of the earlier enactment is usually held to be retrospective and for that purpose they referred to Page 58 of the 7th Edition of the Craies on Statute Law. Then on the clarification proceeding in that case the Supreme Court went on to hold that the said letter being only clarificatory in nature, there is no question of it's having an operation independent of the instructions contained in the original letter and the clarification has to be read as a part of the instructions contained in the earlier letter. That judgment squarely applies to the case on hand. In this case also, the clarification dated 11.5.2001 clarifies the office memorandum dated 17.12.1998. Going by the above referred to judgment of the Supreme Court, we have no doubt at all that the clarification dated 11.5.2001 is an integral part of the office memorandum dated 17.12.1998 and the clarification does not have an independent existence and operation on it's own.
7. In the light of our discussion referred to above and conclusion arrived at that the clarification dated 11.5.2001 is an executive action taken by the appropriate authority under the rules of business issued under Article 77(3) of the Constitution of India, we find that the challenge to the said clarification must necessarily fail. Accordingly W.P.No. 14913/2002 stands dismissed with no order as to costs. Let us now consider the case of the pensioners concerned in W.P.Nos. 24444/2001 to 24451/2001. There is no dispute that on the date of their retirement on attaining the age of superannuation, they were holding the post of Superintending Engineer on a pay scale of Rs. 1,500 - 2,000. It is also an admitted fact that the said scale of pay was stepped up to Rs. 3,700 - 5,000 in implementation of the 4th Pay Commission recommendation and again to Rs. 12,000 - 16,500 in implementation of the 5th Pay Commission recommendation. It is not in dispute that the pensioners concerned in the above writ petitions were never in the selection grade pay of Rs. 2,000 - 2,250, which had a corresponding upward revision of Rs. 4,500 - 5,700 and then Rs. 14,300 - 18,300. Each one of them have completed more than 13 years of service by the time they retired is also not in dispute. The fact remains that under the 5th Pay Commission recommendation, there were two scales of pay namely, Rs. 12,000 - 16,500 and Rs. 14,300 - 18,300 corresponding to the earlier scales of pay. But however, the pensioners concerned in the above mentioned writ petitions, relying upon the communication dated 18.12.1997 from the Ministry of Information & Broadcasting, would contend that both the above referred to scales of pay were merged into one single scale of pay namely, Rs. 14,300 - 18,300 and under that communication, whoever had a total service of 13 years in Group-A would be entitled to that single revised pay scale. Therefore their case is that since each one of them have put in more than 13 years of service on the date of their retirement, merger of the two scales of pay namely, Rs. 12,000 - 16,500 and Rs. 14,300 - 18,300 into one as Rs. 14,300 - 18,300 would enure to their benefit also and if that is accepted, then their pension fixation on the basis of the office memorandum dated 17.12.1998 should be not less than 50% of that single merged pay. In other words, for getting pension fixed on the pay scale of Rs. 14,300 -18,300, though the pensioners were not in the corresponding earlier scale of pay at any point of time, yet they rely upon only this communication dated 18.12.1997 coupled with the office memorandum dated 17.12.1998. Therefore we have to read the communication dated 18.12.1997 to find out whether such stand can be accepted.
8. From a reading of the communication dated 18.12.1997, it appears to us that it does not protect the interest of the pensioners. In our considered opinion, it would apply only to the Superintending Engineer in service and those holding analogous and equivalent posts, having completed in all a total service of 13 years in Group "A" as on 1.1.1996. The stress in that communication is that, the category of officers concerned in that proceeding must be holding the post. It is not as though every officer, who was holding the post as on 1.1.1996 would get the benefit of that order but on the other hand, such officer holding the post as on 1.1.1996 should have completed in all a total service of 13 years in Group "A" to get the benefit of the upgraded revised scale of pay. Prior to the coming into force of the communication dated 18.12.1997, there were two scales of pay namely, Rs. 1,500 - 2,000 and selection grade pay of Rs. 2,000 - 2,250 and the senior most twenty persons in the scale of pay of Rs. 1,500 - 2,000 would be fitted into the selection grade pay. Selection grade is only a non-functional selection posts. None of the pensioners concerned in these writ petitions had placed any material to show that when they were in service drawing a scale of pay of Rs. 1,500 - 2,000, they have ever been given the selection grade pay of Rs. 2,000 - 2,250, which alone would take them to the corresponding upward revision in the pay scale of that selection grade. If they could not have got into the selection grade (none of the pensioners have established that fact, since they do not claim to come within the senior most 20 persons), then the mere fact that they could have completed 13 years of service on the date of their respective retirement, would not enable them to get the benefit of the upgraded revised scale of pay of Rs. 14,300 - 18,300 as fixed under the communication dated 18.12.1997. As we have already noted, the benefit arising out of the communication dated 18.12.1997 would not apply to the pensioners. In fact, there is no reference at all to the pensioners in the said communication. Under these circumstances, we are not inclined to agree with the submission made by the learned Senior Counsel appearing for the pensioners that consequent to the upgraded revised scale of pay as disclosed in the communication dated 18.12.1997, the pensioners having put in more than 13 years of service on their respective date of retirement, would get the benefit of such upgraded revised scale for the purpose of fixing their pension. Therefore the communication dated 18.12.1997 stands excluded from consideration in analysing the claim of the pensioners.
9. If that is so, then we have to look into the office memorandum dated 17.12.1998 and the clarification dated 11.5.2001. Under the office memorandum dated 17.12.1998 it is declared that the pension payable shall not be less than 50% of the minimum of the revised scale of pay introduced with effect from 1.1.1996 for the post last held by the pensioner at the time of his retirement. The post last held by the pensioner in each of the writ petition carried a pay scale of Rs. 1,500 - 2,000 and the said scale of pay, pursuant to the 5th Pay Commission recommendation, stands revised as Rs. 12,000- 16,500 with effect from 1.1.1996. There is no dispute that each of the pensioner is getting pension fixed on the revised scale of pay. The post referred to in the office memorandum dated 17.12.1998 is relatable to the scale of pay. Post and the scale of pay cannot be separated. Only to clarify this, the proceeding dated 11.5.2001 had come to be issued. Under that clarification, it is made clear that the expression "post last held by the pensioner" shall mean the scale of pay held by the pensioner at the time of his superannuation/retirement. Therefore reading the office memorandum dated 17.12.1998 it is clear to our mind that the pensioners concerned in this case can have their pension fixed only on the revised scale of pay of Rs. 12,000 - 16,500 introduced with effect from 1.1.1996 and not on any other scale, since admittedly they were only drawing a scale of pay on the corresponding previous scale of pay when they retired. This position, as could be seen clearly from the office memorandum dated 17.12.1998, stands clarified by the latter clarification dated 11.5.2001. Since the Hon'ble Supreme Court of India in the judgment referred to above namely, S.S. Grewal v. State of Punjab and Ors., 1993 Supp (3) SCC 234, had held that the clarification must be read as part of the original order, reading the clarification dated 11.5.2001 with the office memorandum dated 17.12.1998, it is not possible to reach any other conclusion other than the conclusion as reached by us above. Consequently, the order of the Central Administrative Tribunal challenged in these writ petitions is set aside and the writ petitions are allowed.
10. Let us now take up the remaining writ petitions namely, W.P.Nos. 30047/2002, 45135/2002 and 32527/2004 in their order for consideration. The pensioner in W.P.No. 30047/2002 went before the Central Administrative Tribunal to quash the order denying him pension calculated on the basis of the pay scale of Rs. 14,300 - 18,300 and sought for a direction to fix his pension on that basis only. The Tribunal granted the order as prayed for. The pensioner in that case was working as the Director in the Department of Telecommunication and he was deputed to Maha Nagar Telecom Nigam Limited (MTNL) as Senior Finance Manager from the afternoon of 3.4.1986, in which post he retired within two or three months thereafter. In "MTNL" he was drawing a scale of pay of Rs. 4,500 -- 5,700 and in the parent department before deputation, he was drawing a scale of pay of Rs. 3,700 - 5,000. The question is, in fixing his pension, whether the emoluments received by him in "MTNL" at Rs. 4,500 - 5,700 with the corresponding upward revision should be taken into account or the salary drawn by him in the parent department at Rs. 3,700 - 5,000 with the corresponding revision should be taken into account? This issue is squarely covered by the Central Civil Service (Pension) Rules. Rule 33 deals with emoluments. Note 7 to this Rule states that pay drawn by a Government servant while on foreign service shall not be treated as emoluments but the pay, which he would have drawn under the Government had he not been on foreign service shall alone be treated as emoluments. When this was brought to the notice of the Central Administrative Tribunal by the Union of India to deny the claim of the pensioner, the Central Administrative Tribunal relied upon Note 10 to Rule 33 to repel that point. Note 10 reads as hereunder:
"When a Government servant has been transferred to an autonomous body consequent on the conversion of a Department of the Government into such a body and the Government servant so transferred opts to retain the pensionary benefits under the rules of the Government, the emoluments drawn under the autonomous body shall be treated as emoluments for the purpose of this rule."
Note 10 would apply to a case where a Government servant stands transferred to an autonomous body consequent on the conversion of a department of the Government into such a body and the Government servant so transferred opts to retain the pensionary benefits under the rules of the Government and the emoluments drawn under the autonomous body shall be treated as emoluments for the purpose of Rule 33. In this case the parent department of the pensioner continued to exist and conversion of any department is not involved. It is no doubt true that "MTNL" was a Government of India company at that time. But none-the-less, it cannot mean that when the pensioner, being sent on deputation to the foreign service (the pensioner admits that he was sent on deputation) there was a transfer to an autonomous body consequent to the conversion of the department. Since no such event as contemplated under Note 10 to Rule 33 had taken place, Note 7 to Rule 33 alone would apply to the case on hand. If that is so, the pensioner cannot have his pension fixed on the basis of the salary drawn by him at Rs. 4,500 - 5,700 while on foreign service. Under these circumstances, we hold that the order of the Tribunal is illegal. Accordingly the order challenged in W.P.No. 30047/2002 is set aside and the writ petition is allowed with no order as to costs.
11. We now take up W.P.No. 45135/2002. The pensioner is the writ petitioner. His claim for fixation of pension on the basis of the pay scale of Rs. 14,300 - 18,300 with effect from 1.1.1996 was negatived by the Tribunal. The pensioner was holding the post of Deputy General Manager Telecom (Factory), Mumbai, which is a wing of the Department of Telecommunication. The pensioner retired from that post on 1.1.1986 after completing more than 20 years of service in Group "A". On the date of his retirement, the post of Deputy General Manager was in Junior Administrative Grade level. He would state that his pension was revised with effect from 1.1.1996 based on the revised pay scale of Rs. 12,000 -16,500 fixed in implementation of the 5th Pay Commission recommendation. He would state that he must be fixed in the pay scale of Rs. 14,300 - 18,300 and accordingly his pension must be revised. Union of India resisted the claim on the following basis:
"The pensioner was in the pay scale of Rs. 1,500 - 1,800 on the date of his retirement drawing a pay of Rs. 1,800. That pay scale was on the basis of the 3rd Pay Commission recommendation. Under the 4th Pay Commission recommendation, it was correspondingly revised to Rs. 3,700 - 5,000 and under the 5th Pay Commission recommendation, it was revised to Rs. 12,000 - 16,500. The pensioner was never in the scale of pay of Rs. 4,500 - 5,700 and the single merged pay of Rs. 14,300 - 18,300 was given to only those who were earlier on the pay scale of Rs. 4,500 - 5,700. Accordingly his pension was fixed on the revised pay scale of Rs. 12,000 - 16,500 with effect from 1.1.1996.
The Tribunal went into the matter in detail and found that the clarification dated 11.5.2001 coupled with the office memorandum dated 17.12.1998 would disable the pensioner from having his pension fixed on the pay scale of Rs. 14,300 - 18,300. We have already given our thought in the earlier portion of this order to the office memorandum dated 17.12.1998 and the clarification dated 11.5.2001 and held that the latter one forms an integral part of the former. If that is the concluded position and in view of the fact that the pensioner was never in the pay scale of Rs. 4,500 - 5,700 at any point of time, he cannot have the advantage of the pay scale of Rs. 14,300 -18,300 given for the pre-existing pay scale of Rs. 4,500-5,700. Consequently, finding no illegality in the order of the Tribunal, it is sustained and W.P.No. 45135/2002 is dismissed.
12. Now let us take up W.P.No. 32527/2004. The pensioner in this writ petition went before the Tribunal to have his pension fixed on the pay scale of Rs. 24,050 - 26,000. His case was that on the date of his retirement, his pay scale was Rs. 7,200 - 8,000, he having reached the maximum. This scale of pay was revised into Rs. 22,400 - 26,000 pursuant to the 5th Pay Commission recommendation with effect from 1.1.1996. The Ministry of Finance by office memorandum dated 30.6.1999 revised the pay scales of certain high posts upwards and revised the pay scales of three posts of members as Rs. 24,050 - 26,000 in replacement of the scale of pay of Rs. 22,400 - 26,000 and since on the day when the pensioner retired he was a member of the Board, he is entitled to have his pension revised based on the upward revision. Union of India contested saying that the upward revision by office memorandum dated 30.6.1999 is only prospective and not retrospective in nature. It also contended that the pensioner was holding the post of member only upto 30.9.1993 whereas the posts were identified for upgradation only with effect from 1.1.1996 and therefore the pensioner cannot have the benefit of the same. Government of India pressed into service the clarification dated 11.5.2001. The Tribunal held, going by the judgment of the Delhi High Court, that the clarification dated 11.5.2001 cannot deny higher pensionary benefits given to the pensioner under the office memorandum dated 17.12.1998 and granted the relief to him. We have already held that the clarification dated 11.5.2001 is valid; it forms an integral part of the office memorandum dated 17.12.1998 and reading both together, fixation of pension for the pensioner shall be only on the salary, which he was drawing on the date of his retirement. In implementing the 5th Pay Commission recommendation on the pay last drawn by the pensioner, the re-fixation was only at Rs. 22,400 - 26,000 and his fixation of pension shall be only on that basis and not on any other basis. For the reasons stated above, we hold that the impugned order is erroneous and it is liable to be set aside. Accordingly, it is set aside and W.P.No. 32527/2004 is allowed.
13. Before we part with this case, we also address ourselves to the arguments advanced by the learned Senior Counsel appearing for the pensioners and the other counsels appearing for the pensioners on the ground that the order of the Central Administrative Tribunal Bangalore, confirmed by the Karnataka High Court, gave the benefit to the pensioners as asked for by the pensioners in the present batch of cases; Delhi High Court sustained the order of the Central Administrative Tribunal, Delhi giving such a relief to the pensioners, which order was affirmed by the Hon'ble Supreme Court of India by rejecting the special leave petition at the admission stage itself and all these judgments would have a persuasive value in our mind. It is a well settled position in law that when a special leave petition is dismissed at the admission stage itself confirming the order in challenge, it would not amount to the Supreme Court laying down a law on any particular point. On going through the judgment of the Central Administrative Tribunal, Bangalore; judgment of the Karnataka High Court and the judgment of the Delhi High Court, we are of the respectful opinion that it does not appeal to us at all. All the writ petitions are disposed of as indicated earlier. Connected W.P.M.Ps are closed.