Punjab-Haryana High Court
Union Of India And Others vs Dr. S.M.Bose And Others on 5 March, 2013
Bench: A.K.Sikri, Rakesh Kumar Jain
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Date of Decision: 5th March, 2013
1. Civil Writ Petition No. 16435 of 2012
Union of India and others ...Petitioners
Versus
Dr. S.M.Bose and others ..Respondents.
2. Civil Writ Petition No. 19974 of 2012
Union of India and others ...Petitioners
Versus
Dr. S.M.Bose and others ..Respondents.
CORAM: HON'BLE MR. JUSTICE A.K.SIKRI, CHIEF JUSTICE.
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN.
1. Whether Reporters of local papers may be allowed to see the judgment ?
2. Whether to be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
Present : Mr. Amit Jhanji, Advocate, for the petitioners.
Mr. D.S.Patwalia, Advocate, for the respondents.
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A.K.SIKRI, CHIEF JUSTICE The private respondents herein who are all Medicose and retired from Post Graduate Institute of Medical Education & Research, Chandigarh (for short 'PGI') had filed Original Application (O.A.) before the Central Administrative Tribunal (CAT) for grant of declaration that Non- Practicing Allowance (NPA) should be included in the pay. In this O.A., Union of India as well as P.G.I. were impleaded as respondents. Said O.A. has been allowed by the CAT vide impugned judgment dated 28.03.2012. CWP No. 16435 of 2012 [2]
2. Both P.G.I as well as Union of India filed these writ petitions questioning the validity of that very judgment. For this reason, these two writ petitions were heard together.
3. To understand the grievances of the respondents, it would be necessary to traverse certain material facts.
4. In order to give incentive to the Doctors working in Government Hospitals, the Central Government had issued orders granting Non-Practicing Allowance (NPA) for medical post. Vide Notification dated 21.09.1987 it was provided that this NPA would be treated as part of pay. This position was reiterated in Notification dated 26.02.1989 as well. On 07.04.1998, the State Government issued a Notification wherein NPA was increased to 25% of the basic pay subject to the condition that it would not exceed Rs. 29,500/-. It is on this basis that all these respondents were getting NPAs. when they were in the employment of PGI.
5. The pay scales of the employees of the Central Government were revised pursuant to the recommendations of 5th Central Pay Commission. This revision was accepted by PGI as well qua its employees. The Central Pay Commission had recommended that even those employees who had retired prior to 1.1.1996 their pay should be fixed in the revised pay scales. At that time, while implementing these recommendations, notification dated 17.12.1998 was issued treating NPA as part of pay for the purpose of revision in the pay scales and all the respondents were granted the benefits of the revised pay scales which included the NPA. This was applied even to some of those respondents who had retired by that time and their pension was fixed in the similar manner. However, this notification CWP No. 16435 of 2012 [3] dated 17.12.1998 was modified on 29.10.1999 stipulating that NPA granted to the Doctors would not form part of the pay scales. Being aggrieved of such action, the respondents preferred Civil Writ Petitions No. 10699 of 2000 and 4433 of 2004 and other petitions in this Court wherein notices were issued to the respondents and interim orders were passed granting the respondents herein the entitlement of benefit of NPA towards tabulation of the quantum of pension. The petitioners herein approached the Apex Court against the said interim orders but their Special Leave Petitions were dismissed.
6. It would be worthwhile to mention at this stage that certain members of the Central Health Services had earlier filed O.A. No. 655 of 2010 before the Principal Bench, Central Administrative Tribunal at New Delhi, seeking quashing of the notification dated 17.12.1998. They also sought declaration to the effect that NPA should be included in the pay. This O.A. was dismissed by the Tribunal. However, writ petition No. 7322 of 2001 titled as K.C.Garg Vs. Union of India and others challenging the said judgment of the Tribunal was allowed by the Delhi High Court vide orders dated 28.5.2002. Though the Union of India filed Special Leave Petition there against, but it was dismissed as withdrawn on 13.05.2005. Following the said judgment of the said Delhi High Court, it has attained finality. Writ petitions filed by the respondents i.e. Civil Writ Petitions No. 10699 of 2000 and 4433 of 2004 were also allowed by this Court on 30.01.2006.After passing of the judgment in the year 2006 the respondents (who retired before 1996) were paid the arrears of NPA in compliance of the order dated 30.01.2006 passed by this Court.
CWP No. 16435 of 2012[4]
7. In the meantime, Sixth Central Pay Commission was constituted which submitted its report and the same was accepted with certain modifications by the Government and the revised pay scales came to be enforced w.e.f. 1.1.2006. By this time, all these private respondents had retired after serving in PGI as Doctors. They had retired between the years 1982 to 2005. The Government issued Notifications dated 11.02.2009, 14.7.2009 and 24.9.2009, whereby PGI as well as all the Ministries and the concerned Government Departments were given instructions to the effect that the NPA granted to the Doctors would not form part of the pay scales and it would not be taken into consideration for refixing the pay in the revised pay scales. It is these notifications which were challenged by the respondents in the O.A., in which the impugned judgment has been rendered holding these notifications as discriminatory and arbitrary to those Doctors who retired before 01.01.2006.
8. According to the petitioners when the benefit of the arrears of NPA was given to these respondents, in view of the judgment of the Delhi High Court in K.C.Garg's case (supra) and orders dated 30.01.2006 passed by this Court in CWP No. 10699 of 2000 filed by Dr. B.L.Talwar and others, the respondents had again approached the Tribunal with similar prayers challenging the notifications of 2009 and 2011. It is the submission of Mr. Jhanji, appearing for PGI that such a double benefit was not admissible and the order of the Tribunal is without considering the written statement filed by PGI wherein specific stand was taken that the issue was covered by the judgment of the Supreme Court in Col. B.J.Akkara Vs. Union of India and others 2006(11) SCC 709 and the impugned CWP No. 16435 of 2012 [5] notifications were issued simply in compliance with the aforesaid judgment of the Supreme Court.
9. Mr. Jhanji, learned counsel appearing for the PGI further submitted that the respondents as per their own case are Doctors who have retired between 1980 to 2005. It is submitted that NPA was and is still being given to all the Doctors working in the PGI and at the time of retirement when the pension of a retiree is to be determined, then NPA is calculated for the purpose of determining the pension of a retiree doctor which forms part of the pay. The pension of the respondents was accordingly determined by taking into consideration the Non-Practicing Allowance plus the basic pay at the time of their retirement. The pension calculation sheets of few of the respondents are produced in support of this submission. It is submitted that the case set up by the respondents before the learned Tribunal is that the NPA is to be taken as part of the pay and accordingly notifications issued by the government to restrict the grant of Non-Practicing Allowance towards counting of quantum of pension is unsustainable. Mr. Jhanji further argued that the respondents, who are all now retired Doctors and must be doing private practice, cannot be granted Non-Practicing Allowance towards counting of quantum of pension. The said NPA granted to Medical Officers does not constitute separate elements.
10. Mr. Patwalia, countered the aforesaid submissions. His submission was that the judgment in the case of Col. B.J.Akkara's case (supra) was not applicable in the present case. He submitted that in the said case, the Supreme Court had held that NPA has to be granted once as a part of pay for calculation of pay and cannot be granted again to step up the CWP No. 16435 of 2012 [6] pension of the retirees. However, in the instant case, the NPA has not even been granted once/added once so far as retirees are concerned. He further submitted that it is a settled proposition of law that the retirees constitute a class within themselves and thus there can be no discrimination vis.a.vis. their date of retirements. Therefore, the distinction carved out by the petitioners between pre and post 2006 retirees is liable to be rejected. Infact, the said distinction has been held to be ultra vires by the Central Administrative Tribunal, Principal Bench, New Delhi in OA No. 655 of 2010 vide its order dated 01.11.2011.
11. He also argued that the petitioners have not given any reasons or justification to withdraw NPA. The memos are cryptic and non-speaking. Further the action of the petitioners in recovering the amount on the basis of letter dated 29.10.1999 without any show cause or opportunity of hearing to the respondents is illegal and arbitrary.
12. From the arguments noted above, it is clear that the controversy is in a very narrow campus. NPA is to be treated as part of pay and the Central Government had issued a notification to this effect as far as back on 02.11.1989 which was reiterated in April, 1998 as well. Once it is to be treated as part of pay, at the time of revision of pay scales, it has to be included in the pay being drawn by a particular employee. However, as per the PGI and Union of India, after the judgment of Delhi High Court in K.C.Garg's case (supra), the benefit of NPA was extended to these respondents by treating the same as part of pay and revising pay scales accordingly. Thus, it was not admissible all over again second time in view of the judgment of Col. B.J.Akkara's case (supra). On the other hand, the CWP No. 16435 of 2012 [7] submission of the respondents is that NPA has not been granted/added even once in the case of the respondents.
13. Before we come to this controversy, it would be advisable to take note of the ratio of Col. B.J.Akkara's case (supra). That was a case of pre- 1996 pensioners of Army Medical Corps. When the pay scales were revised w.e.f. 01.01.1996, on the basis of which pensions of those petitioners were also to be stepped up, the said retired medical officers wanted NPA to be added in the pay. The Supreme Court held that it was not permissible. It would be relevant to mention that as per Circular dated 07.06.1999, pension of Army Officer was not to be less than 50% of the minimum pay in the revised scales of pay i.e. 50% of the initial pay in the revised scales of pay. For stepping up of pension adding NPA again to the minimum in revised pay scale, was held not permissible in view of Circular dated 11.9.2001. While giving this decision, following discussion ensued which is relevant for our purposes:-
"13. The emoluments of those who retired on or after 1.1.1996, calculated with reference to the basic pay in the revised scale of pay plus NPA will certainly be more than the minimum pay in the revised scale of pay and therefore, in their cases, the question of stepping up will not arise. On the other hand, as the pension of pre-1996 retirees was based on the basic pay under the old pay scale plus NPA, and as the old pay scale was much less than the 1996 revised pay scale, their pension required to be stepped up. The extent to which the existing pension should be stepped up is clearly specified in the Circular as "minimum pay in the revised scale of pay". The words used do not give room for any confusion or doubt. A 'pay scale' has basically three elements. The first is the minimum pay or initial pay in the pay scale. The second is the periodical increment. The third CWP No. 16435 of 2012 [8] is the maximum pay in the pay scale. An employee starts with the initial pay in the pay scale and gets periodical increases (increments) and reaches the maximum or ceiling in the pay scale. Each stage in the pay scale starting from the initial pay and ending with the ceiling in the pay scale, when applied to an employee is referred to as 'basic pay' of the employee. Whenever the government revises the pay scales, a fitment exercise takes place as per the principle of fitment (formula) provided in the rules governing the revision of pay so that the 'basic pay' in the old scale is converted into a 'basic pay' in the revised pay scale. When the circular dated 7.6.1999 used the words '50% of the minimum pay in the revised scale of pay', it referred to 50% of the initial pay in the revised scale of pay. If the old scale of pay was Rs. 7300- 100-7600 and if the revised scale of pay was Rs. 22400-525-24500, the minimum pay in the revised scale of pay would be Rs. 22400 and 50% of the minimum pay in the revised scale of pay would be Rs. 11200/-.
14. It is no doubt true that the term 'pay', with reference to medical officers, includes the basic pay and NPA. But the term 'basic pay' does not include NPA. In the absence of any special definition, the term 'basic pay of a government servant' refers to the applicable stage of pay in the pay scale to which he is entitled, and does not include NPA even in the case of Medical Officers. What the circular dated 7.6.1999 intended to extend by way of benefit to all pensioners, was a minimum pension, that is, 50% of the minimum pay in the 1996 revised scale of pay. NPA has no part to play in the minimum that is sought to be assured. NPA has relevance only for initial fixation of pension and not for stepping up pension under Circular dated 7.6.1999.
15. As a result, if the pension of a retiree is determined by taking into account NPA as part of 'pay' and the pension so determined is more than 50% of minimum pay in the revised scale of pay, he would continue to get such higher pension. This would happen in the case of all those who retired on or after 1.1.1996. If the pension determined by taking into account NPA as part of pay, is less CWP No. 16435 of 2012 [9] than 50% of the minimum pay in the revised scale of pay, his pension would be stepped up to 50% of the minimum pay in the revised scale of pay. This would happen in the case of pre 1996 retirees.
16. The petitioners want to read the words "not less than 50% of the minimum pay in the revised scale of pay" in the Circular dated 7.6.1999, as "not less than 50% of the minimum pay in the revised scale of pay plus NPA". When the language used is clear and unambiguous and the intention is also clear, it is not permissible to add words to the Circular dated 7.6.1999 to satisfy what petitioners consider to be just and reasonable. "Minimum pay in the revised scale of pay" refers only to the initial pay in the revised scale of pay and not anything more. Due to a misinterpretation, NPA was included for the purpose of giving the benefit of stepping up the pension in the case of retired medical officers. The fact that NPA had already been taken into account while calculating the 'existing pension' of the medical officers who retired before 1.1.1996 was lost sight of. The fact that NPA is part of 'pay' and not part of 'basic pay' was also overlooked. Therefore, it became necessary to issue the clarification, which was done by circular dated 11.9.2001, clarifying that it was impermissible to again add NPA to 'the minimum pay in the revised pay scale' for the purpose of stepping up the pension."
14. The law is thus clearly stated in the aforesaid case by the Supreme Court which has to be followed while determining the issue at hand. However, in the impugned judgment, the Tribunal has not even noticed this judgment.
15. As pointed out above, there is a controversy as to whether the judgment is applicable on the facts of the present case. PGI claims that NPA was added in the pay scales while fixing the pension and therefore, it cannot CWP No. 16435 of 2012 [10] be taken into consideration again while revising the pension, according to the respondents it was not so.
16. At this stage, we would like to point out that after the arguments were concluded in this matter and the judgment reserved on 08.01.2013, learned counsel for both the parties were given opportunity to file their written synopsis. The respondents filed its written synopsis along with application under Section 151 of the Code of Civil Procedure (C.M. No. 651 of 2013). However, by this application, permission was sought to place on record certain documents as well annexed as Annexures A1 to A-7 (Annexure A-8 are the written synopsis). From these documents, it is sought to be projected that the NPA was not added towards their pension. Pension calculation sheets are also annexed to buttress their submissions.
17. PGI has filed its reply opposing the prayer for admitting these documents for the first time in this writ petition which was not the part of record of the Tribunal. PGI has again reiterated that all these respondents who had retired prior to 2006 were granted the benefit of NPA at the time of their retirement when the pension was calculated.
18. The plea of the PGI, though technically correct, as the documents surfacing for the first time in this writ petition, are sought to be filed. However, it goes to the root of the matter and applicability of the judgment in Col. B.J.Akkara's case (supra) would depend upon the outcome of this controversy. We are, therefore, of the opinion that the judgment of the Tribunal needs to be set aside as it has not gone into the controversy in an appropriate manner taking into consideration the ratio of Col. B.J.Akkara's case (supra). However, at the same time the matter needs to be CWP No. 16435 of 2012 [11] remitted back to the Tribunal for fresh consideration. The respondents shall be entitled to place on record before the Tribunal, such further documents on which they rely upon in support of their plea that NPA was not taken into consideration at the time of fixing their pension. Likewise, P.G.I./Union of India would be entitled to rebut this by placing on record whatever documents they intend to file. On that basis, the Tribunal shall decide the controversy, ofcourse keeping in mind the ratio in Col. B.J.Akkara's case (supra).
The writ petitions are allowed and disposed of in the aforesaid terms. The parties shall appear before the Tribunal on 01.05.2013.
(A.K.SIKRI)
CHIEF JUSTICE
5th March, 2013 (RAKESH KUMAR JAIN)
'ravinder' JUDGE