Karnataka High Court
S R Rajagopal vs The Defence Pension Disbursing Officer on 23 May, 2012
Bench: N.Kumar, H.S.Kempanna
IN ThE HIGH COURT OF KARNATAKA AT BANGAL
ORE
DATED THIS THE 23RD DAY OF MAY. 2012
PRESENT
THE HON'BLE MR. JUSTICE N.KUMAR
AND
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
WRIT PETITION NO.16727/2005
C/W
WRIT PETITION NO.16728/2005
WRIT PETITION NO.21622/2005
WRIT PETITION NO.16853/2005
WRIT PETITION NO.20025/2005
WRIT PETITION NO.16727/2005
BETWEEN
SRI.S.R.RAJAGOPAL
SINCE DECEASED BY LR
SMT. RAMAMANI RAJAGOPAL,
AGE: 66 YEARS,
OCCN:HOUSE HOLD WORK.
RESIDING AT NO.679,
SWATHY RESIDENCY'.
FIRST FLOOR, 9TH MAIN ROAD,
VINAYAKA HBCS LAYOUT,
4TH STA
GE NAGARABHAVI,
BANGALORE 560 072
-
(LR BROUGHT ON RECORD AS PER
V/O DATED. 12.10.2006) ... PETITIONER
(BY SRI.P.A.KULKARNI - ADV.)
AND
1. THE DEFENCE PENSION DISBURSING
OFFICER (DPDO),
NO.99, DICKENSON ROAD.
BANGALORE 560 042.
-
2. THE CHIEF ENGINEER,
HEAD QUARTERS, BHATINDA ZONE
,
BHATINDA MILITARY STATION.
BHATINDA CONTONMENT: 151 004
3. ThE PRINCIPAL CONTROLLER.
DEFENCE ACCOUNTS (PCDA) (PENS
IONS)
DRAUPADI GHAT,
ALLAHABAD: 211 014. RESPONDENTS
...
(BY SRI.KALYAN BASAVARAJ, ADDL.
SOLICITOR GENERAL)
THIS WRIT PETITION IS FILED UNDE
R ARTICLES 226
AND 227 OF ThE CONSTITUTION
OF INDIA PRAYING TO
QUASH ThE FULL BENCH ORDER
DT:29.04.2005 OF ThE
HON'BLE CAT PASSED IN O.A.504/20
04 AND CONNECTED
MAYFERS, ANN.A SO FAR AS IT PER
TAINS TO THE PETR.
AND FURThER ORDER DT:
8-6-2005 PASSED IN
O.A.504/2004 BY ThE HON'BLE
C.A.T., BANGALORE.
ANN.B AND FURTHER BE PLEAS
ED TO ALLOW THE O.A.
504/2004 FILED BY THE PETITION
ER & ETC.,.
WRIT PETITION NO.16728/2005
BETWEEN
SRI.H.B.AVALAPPA
AGE: 71 YEARS,
S/0 LATE B.BUDDAPPA.
RETIRED SUPERINTENDING ENGIN
EER.
OFFICE OF THE CHIEF ENGINEER
,
AIR FORCE, MINISTRY OF DEFEN
CE,
RESIDING AT NO.199, SFS(208)
OPP: MOTHER DAIRY. YELAHANKA
,
SATELLITE TOWN,
BANGALORE 560 064-
PETITIONER
...
(BY SRI.P.A.KULKARNI - ADV.)
AND
1. UNION OF INDIA
TO BE REPRESENTED BY ITS
3
SECRETARY, MINISTRY OF DEFENCE,
SOUTH BLOCK, NEW DELHI-i 10001
2. THE PRINCIPAL CONTROLLER,
DEFENCE ACCOUNTS (PCDA) (PENSIONS)
DRAUPADI GHAT.
ALLAHABAD: 211 014.
3. ThE CHIEF ENGINEER,
AIR FORCE. NO.2, D.C. AREA,
YESHWANTHPUR POST,
BANGALORE 560 022.
-
... RESPONDENTS
(BY SRI.KALYAN BASAVARAJ - ACGC FOR R- 1 TO R-3)
THIS WRIT PETITION IS FILED UNDER ART
ICLES 226
AND 227 OF ThE CONSTITUTION OF IND
IA PRAYING TO
QUASH THE FULL BENCH ORDER DT:29.04
.2005 OF THE
HON'BLE CAT PASSED IN O.A.504/2004 AND
CONNECTED
MATTERS, ANN.A SO FAR AS IT PERTAIN
S TO THE PETR.
IN OA NO.591/2004 AND FURTHER ORDER
DT: 8-6-2005
PASSED IN O.A.591/2004 BY THE HON
'BLE C.A.T..
BANGALORE, ANN.B AND FURTHER BE
PLEASED TO
ALLOW THE O.A. 591/2004 FILED BY THE
PETR.
WRIT PETITION NO.21622/2005
BETWEEN
SRI.R.V.SRINIVAS MURTHY
Sb R.N.VENKATARAMAIAH.
RETD. SUPRERINTENDING ENGINEER
(M.E.S.) (NAVY AT VISHAKHAPATNAM)
R/A NO.52. 1ST BLOCK,
BSK IIIRD STAGE, IIIRD PHASE.
BANGALORE 560 085
-
PETITIONER
...
(BY SRI.R.N.DESHPANDE - ADV.)
AND
1. THE PRINCIPAL CONTROLLER
DEFENCE ACCOUNTS (PCDA)(PENSIONS)
DRAUPADI GHAT,
ALLAHABAD 211 014
-
4
2. THE CHIEF ENGINEER. NAVY
STATION ROAD,
VISHAKHAPATNAM 530 004
-
3. THE CHIEF ENGINEER
ENGINEERS BRANCH
HEAD QUARTERS. SOUTHERN COMMAND
PUNE-411 001
4. THE MANAGER
STATE BANK OF HYDERABAD
J.C.ROAD BRANCH
BANGALORE 560 002
-
... RESPONDENTS
(BY SRI.S.KALYAN BASAVARAJ - ADDL. SOLICITOR
GENERAL FORR- iTO R-2,
R-3&R-4 ARESERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE
226
OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH
THE IMPUGNED ORDER DT:8.6.2005 VIDE ANX
-D PASSED
BY THE CENTRAL ADMINISTRATIVE TRIBUNAL,
BANGALORE IN OA NO.580/2004 FILED
BY THE
PETITIONER AGAINST THE ABOVE RESPONDEN
TS.
WRIT PETITION NO.16853/2005
BETWEEN
1. SRI.T.R.VISWANATHAN.
AGE:81 YEARS
Sb LATE T.S.RAMAKRISHNA IYER,
RETIRED DEPUTY DIRECTOR,
SURVEY OF INDIA,
RESIDING AT APARTMENT NO.1024,
BLOCK IA', KREST PARK,
39, KANAKAPURA ROAD (OLD)
BASAVANAGUDI, BANGALORE 560 004.
-
2. SRI.T.K.VISVANATHAN,
AGE: 81 YEARS
S/Q LATE T.S.KASTURI,
RETIRED DEPUTY DIRECTOR,
5
SURVEY OF INDIA,
RESIDING AT A-3 1, 'A' BLOCK,
NAVARATNA APARTMENTS,
17TH CROSS, MALLESWARAM
(WEST)
BANGALORE-560 055
3. SRLT.M.G. NAMBISAN
AGE: 78 YEARS
S/O LATE P.M.PARAMESWARAN NAMBISAN.
RETIRED DEPUTY DIRECTOR,
SURVEY OF INDIA,
RESIDING AT NO.44, KASTURI NILAYA,
23RD CROSS, EJIPURA MAIN
ROAD,
VIVEKNAGAR POST,
BANGALORE 560 064
-
PETITIONERS
...
(BY SRLP.A.KULKARNI - ADV.)
AND
UNION OF INDIA
TO BE REPRESENTED BY ITS SECRETARY,
MINISTRY OF SCIENCE AND TECHNOLOGY,
TECHNOLOGY BHAVAN,
NEW MEHRAULI ROAD,
NEW DELHI :110 016
2. THE DIRECTOR,
DEPARTMENT OF SCIENCE AND TECHNOLOGY,
ROOM NO.1, TECHNOLOGY BHAVAN.
NEW MEHRAULI ROAD,
NEW DELHI :110 016
3. DEPARTMENT OF PENSIONS AND PENSIONER'S
WELFARE, MINISTRY OF PERSONNEL. PUBLIC
GRIEVANCES AND PENSIONS, TO BE
REPRESENTED BY ITS SECRETARY,
GOVERNMENT OF INDIA,
NORTH BLOCK, LOK NAYAK BHAVAN,
KHAN MARKET. NEW DELHI: 110003
4. DEPARTMENT OF PERSONNEL AND TRAINING
MINISTRY OF PERSONNEL, PUBLIC
GRIEVANCES AND PENSIONS, TO BE
REPRESENTED BY ITS SECRETARY,
GOVERNMENT OF INDIA,
6
NORTH BLOCK. LOX NAYAK BHAVAN,
KHAN MARKET, NEW DELHI: 110003
5. SURVEY OF INDIA
TO BE REPRESENTED BY ITS SURVEYOR GENERAL,
POST BOX NO.37.
DEHRA DUN:248001 (UTI'ARANCHAL)
6. THE PAY AND ACCOUNTS OFFICER.
CENTRAL PENSION ACCOUNTING OFFICE.
DEPARTMENT OF EXPENDITURE,
MINISTRY OF FINANCE,
TRIKOOT -II COMPLEX,
BHIKAJI CAMA PLACE
NEW DELHI: 110066
7. THE CENTRAL PAY AND ACCOUNTS OFFICER,
SURVEY OF INDIA,
OFFICE OF SURVEYOR GENERAL,
POST BOX NO.37,
DEHRA DUN: 248 001 (UYFARANCHAL)
8. THE REGIONAL PAY AND ACCOUNTS OFFICER,
SURVEY OF INDIA,
KENDRIYA SADAN. II FLOOR, BLOCK-I
SULTAN BAZAR,
HYDERABAD: 500 195 RESPONDENTS
...
(BY SRI.KALYAN BASAVARAJ - ADDL. SOLICITOR
GENERAL)
THIS WRIT PETITION IS FILED UNDER ARTICLE
S 226
AND 227 OF THE CONSTITUTION OF INDIA PRA
YING TO
QUASH THE ORDER DT:19.04.2005 OF THE FUL
L BENCH
PASSED IN O.A.504/2004 AND CONNECTED
MATFERS,
ANN.A TO THE EXTENT IT BECOMES ThE
BASIS FOR
REJECTING THE CLAIM OF THE PETITIONER
S IN TERMS
OF ITS ORDER DT:8-6-2005 IN OA.724,
748 AND
749/2004. AND ALSO THE ORDER DATED:8.6.20
05 IN OA
NOS.724, 748 AND 749/2004 BY THE HON
'BLE CAT
BANGALORE BENCH, BANGALORE BENCH,
BANGALORE
VIDE ANN-B.
7
WRIT PETITION NO.20025/2005
BETWEEN
K.G.RAGHAVENDRA RAO
5/0 GUNDU RAO
AGED ABOUT 72 YEARS
RETIRED CHIEF COMMERCIAL CLERK
MYSORE,
RESIDING AT NO.29 1, 17Th1 'D'
MAIN ROAD, RAJAJI NAGAR, III BLOCK
BANGALORE 560 010
-
2. LSARANGAPANI
SON OF IYAKANNU
AGED ABOUT 70 YEARS
RETIRED CHIEF CLERK
MEDICAL SUPERINTENDENT OFFICE
MYSORE,
RESIDING AT NO.110, III STAGE
GOKULAM NORTh
MYSORE -2
3. L.LINGARAJU
S/0 CHIKKA LINGAIAH
AGED ABOUT 77 YEARS
RETIRED SENIOR CLERK,
DPO/O/MYSORE
NO.32 (45), MODEL HOUSE,
MAHADEVA PURA ROAD,
GANDHI NAGAR.
MYSORE 570 007
-
4. K.R.NARAYANA IYENGAR
SINCE DECEASED REP. BY HIS WIFE
SMT.SARALA K.N.
WIFE OF LATE K.R.NARAYANA IYENGAR
AGED ABOUT 66 YEARS,
NO.569. COLLEGE ROAD,
K.R.MOHALLA, MYSORE -24
(AMENDMENT CARRIED OUT AS
PER ORDER DATED 11.08.2011)
5. P.M.LAKKIAH
8
SON OF MARl GOWDA
AGED ABOUT 76 YEARS,
RETIRED CHIEF CLERK
DIVISIONAL COMMERCIAL
MANAGER'S OFFICE, MYSORE,
RESIDING AT NO.785,
PALLA HALLI POST- 571 438
MANDYA DIST.
6. H.S.MADHURA NATH
SON OF H.S.SETHU RAO
AGED ABOUT 76 YEARS
RETIRED HEAD CLERK
DIVISIONAL OPERATING MANAGER OFFICE,
MYSORE. RESIDING AT NO.330,
VIJAYA NAGAR,
RAILWAY LAYOUT, METAGA HALLI,
MYSORE -24
7. S.K.MUQTHAR PASHA
S/O SUKEMAN KHAN
AGED ABOUT 75 YEARS
RETIRED HEAD CLERK
LOCO FOREMAN/OFFICE, MYSORE,
RESIDING AT NO.123,
SIDDIQU1 NAGAR,
BANNI MANTAP EXTN.,
MYSORE- 15
8. N.NAGARAJ
S/O OF P.R.NARASIMHA MURTHY
AGED ABOUT 72 YEARS
RETIRED CHIEF CLERK
EXECUTIVE ENGINEER/CONSTRUCTION!
BAN GALORE
RESIDING AT NO.EWS 134,
III STAGE. KUVEMPU NAGAR,
MYSORE 23
--
9. M.S.RAMA KRISHNA
SINCE DECEASED REP. BY HIS WIFE
SMT. SI IRIMATHI A C
WIFi OI' LATE M.S.RAMA KRISHNA
AGED ABOUT 65 YEARS
NO.98, GOLLAGERI
9
CHAMA RAJA MOHALLA
MYSORE -24
(AMENI)MENT CARRIED OUT AS
PER ORT)ER DATED 11.08.2011)
10. M.G. PATRIC'
SON OF GANNA PATRIC
AGEI) ABOUT 71 YEARS
RET11<D HEAD CLERK
DIVIS \AL PERSONNEL OFFICER/OFFICE,
MYSORE.
RESIDING AT NO.3377/2,
LOURD NAGAR, CHURCH ROAD,
LESGAR MOHALLA,
MYSORE -01
11. A.N.KRSHNA MURTHY
SINCE I )ECEASED REP. BY HIS WIFE
SMT.SUSHEELAMMA
W/O LATE A.N.KRISHNA MURTHY
AGED 65 YEARS
NO.566,'A/22/A, BEHIND
VENKK;'ARAMANASWAMY TEMPLE STR
EET,
K.R. CIRCLE, MYSORE -24
(AMENDMENT CARRIED OUT AS
PER ORDER DATED 11.08.2011)
12. N.S.VEAKATARAMAIAH
S/O SR:NIVASA RAO,
AGED ABOUT 75 YEARS
RETIRED SENIOR CLERK,
DPO/O. MYSORE.
RESIDING AT NO.1063/78, I MAIN,
6 CR( SS, VIDYARANYA PURA,
MYSORZ-06
13. MAHADAVAPPA
S/O GURU MALLAPPA
AGED ABOUT 73 YEARS
RETIRED Tn, MYSORE
RESIDI IG AT NO.2555/A
AMBEDKAR STREET,
NANJAN GUD TOWN,
MYSORE DIST.
10
14. ALBERN MAYBOO
5/0 JO-IN MAYBOO
AGED ABOUT 76 YEARS,
RETIRED HEAD CLERK
OFFICE OF DOS! MYSORE
RESIDING AT NO.45,
III STAC F. NORTH OF GOKULAM
MYSOR i 02
15. MRS.RCIBERTS. D.M.E.
W/O ROBERTS TAYLOR
AGED AI3OUT 70 YEARS
RETIRE[) HEAD CLERK
DIVISICNAL ELECTRICAL ENGINEER OFF
ICE
MYSOR
RESIDING AT NO.12 A.J. BLOCK,
N.R.MOi IOLLA,
MYSOR 570 007
-
16. AAMEEAIIEMED
Sb AU )UL RAZACK
AGED ABOUT 74 YEARS
RETIRE ) HEAD COMMERCIAL
CLERK / BIRUR,
RESIDING AT NO.4483,
6TH CR( 55, ST.MARY ROA
D,
N.R.MOi IALLA,
MYSORE 570 007
-
17. S.RAJU S/O PONNU SWAMY
AGED ABOUT 70 YEARS
RETIRED YFI. MYSORE
RESIDING AT NO.280,
KRISYHNA NIVAS,
OLD POST OFFICE ROAD,
HUNSUR. MYSORE DIST.
18. 5. LAKS I I MI NARAYANA
5/0 S.N.SUBBARAMAIAH
AGED ABOUT 71 YEARS
RETIRED HEAD COMMERCIAL
CLERK / MYSORE,
RESIDING AT NO.CH 74,
7TH CRO
3S. K.R.PURAM,
MYSORN 570 008
-
Ii
19. K. MADALAII
S/0 KENCHE GOWDA
AGED ABOUT 71 YEARS
RETIRED MCM/ MYSORE
RESIDING AT NO.2556/i,
KALIDASA ROAD, V.V.MOHALLA
MYSORE
20. B. MARl S / 0 LATE BASAVAIAH
AGED AB )UT 68 YEARS
RETIRED MCM/MYSORE
RESIDING AT NO.4081,
SIDDAPAGI TEMPLE,
I CROSS, GANDHI NAGAR,
MYSORE
21. B.KALLAIAH
S/O BORE GOWDA
AGED ABOUT 76 YEARS
RETIRED 1-1ST PLUMBER/ MYSORE
RESIDING AT NO.355, GEYIY STREET
NAZARABAD. MYSORE.
22. LPUTrA SIDDAIAH
S/0 LATE LAXMAIAH
AGED ABOUT 72 YEARS
RETIRED MCM/ MYSORE
RESIDING AT NO.LIG 31
NE\V KANTHARAJ URS ROAD
KUVEMP1' NAGAR, MYSORE -23
23. G.R.VENKATA SUBRAMANYAM
S/O G.S.RAMA IYENGAR
AGED ABOUT 73 YEARS
RETIRED CTFI. MYSORE
RESIDINC AT NO. 274. II MAIN,
VIJAYA NAGAR,
RAILWAY LAYOUT. HEBBAL,
MYSORE 16
24. M.V.NARAYANA JETTY
S/C) VENKATA KRISHNA JETI'APPA
AGED ABOUT 70 YEARS
RETIREI) OFFICE SUPERINTENDE
NT
GEERAI BRANCH MYSORE.
RESIDING ATNO.HIG, 175/A,
12
Ill MAIN. RAMA KRISHNA NAGAR,
H BLOCK. MYSORE -22
25. H.ABDUL AZEEZ KHAN
SINCE DECEASED REP. BY HIS WIFE
MRS.ZEENATHUNNISA BEGUM
WI FE OF' LATE H .ABDUL AZEEZ KHAN,
AGED ABOUT 76 YEARS,
NO.2083. ASHOKA ROAD,
WEST CROSS. LOSHKAR MOHALLA,
MYSORE.
(AMENDMENT CARRIED OUT AS
PER ORDER DATED 11.08.2011)
26. PADMA
AGED ABOUT 68 YEARS
RETIRED CHIEF TYPIST
DI\J1SIONAL ENGINEER OFFICE, MYSORE,
RESIDING AT NO.16, PUNITHA,
KALIDASA ROAD. V.V.MOHALLA
MYSORE 02
-
27. J.RAJAPPA
S/O JOSEPH GOWDA
AGED ABOUT 76 YEARS
RETIRED C & W FIYFER(1), MYSORE
RESIDING AT PALA HALLI POST,
SRIRANGA PATNA TALUK,
MANDYA DIST- 571 438
28. SYED ABDUL HAKEEM
S/C SYEI) ABDUL KHADER
AGED ABOUT 69 YEARS
RETIRED C'ITI. MYSORE
RESIDING AT NO.20 LIG.
PHC COLONY.
BHi DA MAKAAN EXTN.,
N.R.MORALLA. MYSORE -07
29. JAELA KHATOON
W/C LATE A.ABDUL RAHEEMAN
AGED ABOUT 62 YEARS
RESDING AT NO.28, 7TH CROSS,
M.DT1jRj\ ROAD, UDAYA GIRT,
MYLDRE 19
--
13
30. SUSHEEL SEGAMANI
SINCE DECEASED REP. BY HIS WIFE
MRS.AROKYA MARY
W/O LATE SUSHEEL SEGAMANI
AGED ABOUT 68 YEARS
RESIDING AT NO.152/33,
PUSPA GIRT, VOLAVATFA GRAMA,
MYSORE -03
31. LAKSHAMMA
W/O LATE C.MAHADAVAIAH
AGED ABOUT 70 YEARS
RESIDING AT NO.2607
HOSABANDI KERI,
5TH MAIN, 5TH
CROSS,
CHAMUNDI PURAM
MYSORE -04 ... PETITIONERS
(BY SRI.K.V.SHAMANNA, ADV.)
AND
1. UNION OF INDIA
REPRESENTED BY THE
SECRETARY MINISTRY OF RAILWAYS,
(CHAIRMAN RAILWAY BOARD)
RAIL BHAVAN, NEW DELHI
2. THE DIVISIONAL PERSONNEL OFFICER
SOUTH WESTERN RAILWAY,
MYSORE DIVISION, MYSORE
3. THE SENIOR DIVISIONAL FINANCE MANAGER
SOUTH WESTERN RAILWAY,
MYSORE DIVISION, MYSORE RESPONDENTS
...
(BY SRI.N.S.SANJAY GOWDA- ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE COMMON ORDER DT:8.6.05 TN OA. NOS.586,
587, 619, 621, 623 TO 627, 631, 632, 694, 695, 697 TO
701, 725 TO 727, 741. 742, 744, 745, 754, 755. 757/2004
AND 26, 29, 32/05 BY THE CENTRAL ADMINISTRATIVE
14
TRIBUNAL, BANGALORE BENCH, BANGALORE VIDE ANN-A
AND ETC.,.
THESE WRIT PETITIONS COMING ON FOR FINAL
HEARING THIS DAY, N.KUMAR J.. MADE THE
FOLLOWING: -
ORDER
As common question of law is involved in these writ petitions, they are taken up and disposed of by this common judgment. However, in order to appreciate the legal contentions, we have set out the facts in W.P.NO. 16727/2005.
2. The petitioner, Sri.S.R.Rajagopal, was appointed as Superintendent (Buildings and Roads) under Chief Engineer, Southern Command, Ministry of Defence, Union of India on 16.10.1952. Subsequently, he was promoted as Asst. Surveyor of Works, Surveyor of Works and his last promotion was that of Surveyor of Works with effect from 2.4.1985 which is JAG Group A post. He took voluntary retirement with effect from 8.1.1986. On the date of his retirement he was holding the post of JAG Superintending Engineer Grade carrying pay scale of Rs.3700-125-4700-150-5000/-.
Central Civil Services (Revised Pay) Rules, 1997 (for 15 short hereinafter referred to as the Rules') came to be published on 30.9.1997. The said Rules is deemed to have come into force on 1.1.1996. Part A of the First Schedule provided the revised scale of pay with reference to the present scale of pay as indicated in respect of Groups A, B, C and D. These revised scales are applicable for all the posts except those posts for which different revised scales are notified separately under Part-B of the Schedule.
3. The case of the petitioner is he was holding the post of Superintending Engineer in the pay scale of Rs.3700--5000/- on the date of his retirement. The scale of pay in respect of Superintending Engineer JAG Non Functional Selection Grade was Rs.4500--5700/-.
These two scales find a place in the Schedule at S2 1 and S24 respectively in Part A of the Schedule. The said scales are not applicable to the post of Superintending Engineer as pay scale in respect of the post of Superintending Engineer is provided under Part B of the First Schedule in respect of the post of Superintending Engineer carrying the present scale of 16 Rs.3700-5000/-. The revised scale of pay provided is Rs. 14300-18300/-. The respondents under the impression that the petitioner-Rajagopal is entitled to the pay scale as mentioned in Group B was paid pension calculated at the scale of Rs. 14300-18300/- as per the communication dated 14.1.1998. However, in view of the clarification issued by the Government from time to time clarifying the meaning of the word 'post last held', they re-fixed the pension of the petitioners and reduced the same which is calculated on the basis of the scale at the rate of Rs.12000-16500/-. The re fixation of pension was challenged by the petitioners before the Central Administrative Tribunal, which has dismissed their application. As there was an interim order of stay granted by the Central Administrative Tribunal during the pendency of their application, notwithstanding the re-fixation of pension the petitioners have drawn the pension at the higher rate.
This Court while entertaining these writ petitions also granted an interim order of stay which enabled the petitioners continue to draw pension at the higher rate.
17During the pendency of the proceedings the petitioner In WP.N016727/05 Mr.Rajgopal died. In pursuance of the Interim order, his wife also has been paid family pension at the higher rate.
4. The learned counsel for the petitioner assailing the lmpugped order contends though the petitioner was drawing the pay at the rate of Rs.3100-5000, which according to Part A S21 corresponds to Rs.12,000 -
16500/-, by virtue of Part B having regard to the fact that he was holding the post of Superintending Engineer as against the pay scale of Rs.3700-5000/-, what he Is entitled Is Rs.14300-18300/- scale and accordingly, as per the order dated 14.1.1998 authorities correctly fixed the pension on the basis of the aforesaid higher pay scale. Otherwise, there would be discrimination between the persons retired on 1.6.1996 and after 1.1.1996 which Is held to be vitiated In more than one case starting from Nakara's case.
Therefore, he submits the impugned order passed by 18 the Tribunal as well as the revised fixation of pension passed by the authorities requires to be quashed.
5. Per contra, the learned Asst. Solicitor General supporting the impugned order contended in view of the clarification issued by the Government from time to time, which are all now upheld by the Apex Court, the corresponding scale to which the petitioner was entitled is only Rs.12,000/- to 16500/-. As the condition prescribed by application of Part B has not been fulfilled, the petitioner is not entitled to the pay scale of Rs. 14300- 18300/-. Though on an misunderstanding of the Rules, the pension of the petitioner was fixed on the basis of the pay scale Rs. 14300-18300/-, once the error was noticed it has been rectified by re-fixing the pay scale. It is legal and valid and in identical facts, the Apex Court has upheld the said stand of the Government and therefore, these cases are also squarely covered by the judgment of the Apex Court and therefore, no case for interference is called for.
196. Even in other writ petitions also, the question for consideration is, 'Though all these petitioners retired prior to coming into force of the Rules, i.e. prior to 1. 1.1996, whether for the purpose of fixing the pension, the pay scale as compared to the earlier pay scale is to be taken into consideration or pay scale as compared to the post last held by the pensioners is to be taken into consideration?
7. It is in this regard we have the judgment of the Apex Court directly on the point. The Apex Court in the case of K.S.KRISHNAMURTHY ETC. - VS - UNION OF INDIA & ANR. rendered in Civil Appeal NO.3174/06 and other connected matters, went into the identical issues and has held as under :-
The main thrust of the submissions of learned counsel. for the appellants is that the O.M. dated 11.05.2001 over-rides the original O.M. dated 17.12.1998 and creates two classes of pensioners. We are unable to accept this contention. As noticed above, the recommendations of the 5th Pay Commission 20 were accepted to the extent of Policy Resolution dated 30.09.1997. The aforesaid Policy Resolution was further clarfled by issuing instructions in O.M. dated 17.12.1998, which were clarified by another Executive Instructions in O.M. dated 11.05.2001. It is well settled principle of law that recommendations of the Pay Commission are subject to the acceptance/rejection with modflcations of the appropriate Government. It is also well settled principle of law that a policy decision of the Government can be reviewed / altered! modified by Executive Instructions. It is in these circumstances that a policy decision cannot be challenged on the ground of estoppel. In the present case, the recommendations of the 5hz Pay Commission were accepted by a Policy Resolution dated 30.09.1997 that the ceiling on the amount f pension will be 50% of the highest pay in the Government. The pension of all pre 1.1.96 retires including pre 86 retires shall be consolidated as on 1.1.1996, hut the consolidated pension shall not be brought on to the level of 50% of the minimum of the revised pay of the post held by the pensioner at the time of retirement. The subsequent O.M. dated 17.12.1998 clarified the Policy Resolution dated 30.09.1997 by 21 Executive Instructions in O.iW. dated 17.12.1998 and further clarified in the form Qf O.M. dated 11.05.2001 clarifying the contents of Policy Resolution of the Government dated 30.9.1997. They are both complementary to each other. Both clarify the Government Policy Resolution dated 30.09.1997. The appellants are not aggrieved by the Executive Instructions in O.M. 17.12.1998. In our view. therefore. the contention of the appellant that the O.M. dated 11.5.2001 over-rides the original O.M. dated 17.12.1998 thereby creates two classes of pensioners is absolutely ill-founded and untenable.
It is common knowledge that an increase in the pay scale in any recommendation of a pay commission is a corresponding increase in the pay scale. In our view, therefore. Executive Instructions dated 11.05.2001 have been validly made keeping in view the recommendations of the Pay Commission accepted by the Policy Resolution of the Government on 30.09.1997, clarified by Executive Instructions dated 17.12.1998. The Executive Instructions dated 11.05.2001 neither over-ride the Policy Resolution dated 30.09.1997 nor Executive Instructions dated 17.12.1998 claijfying the Policy Resolution dated 30.09.1997. The Executive Instructions dated 11.05.2001 were in the form of further clarfying the Executive Instructions dated 17.12.1998 and do not override the same.
Counsel for the appellants heavily relied on the Constitution Bench decision of this Court in D.S.Nakara v.Union of India (1983) 1 SCC 305 where this Court at Page 345 SCC observed that "liberal ised pension scheme becomes operative to all pensioners governed by 1972 Rules irrespective of the date of retirement".
Nakara's case (supra) has been distinguished by this Court in State of Punjab & Ors. v. Boota Singh & Anr. (2000) 3 SCC 733; State of Punjab & Anr. v. J.L. Gupta & Ors. (2000) 3 SCC 736; State of West Bengal and Anr. v. W.B.Govt. Pensioners' Association & Ors. (2002) 2 SCC 179; and State of Punjab & Ors. v. Amar Nath Goyal & Ors. (2005) 6 SCC 754.
Nakara's case (supra) was a case of revision of pens ionary benefits and classfication of pensioners into two groups by drawing a cut off line and granting the revised pensionary 23 benefits to employees retiring on or after the cut off date. The criterion made applicable was being in service and retiring subsequent to the specfied date". This Court held that for being eligible for liberalised pension scheme, application of such a criterion is violative of Article 14 of the Constitution. as it was both arbitrary and discriminatory in nature. It was further held that the employees who retired prior to a specfled date, and those who retired thereafter formed one class of pensioners. The attempt to classify them into separate classes/groups for the purpose of pensionary benefits was not founded on any intelligible dfj'èrentia, which had. a rational nexus with the object sought to be achieved. The facts of Nakara's case (supra) are not available in the facts of the present case. In other words, the facts in Nakara's case are clearly distinguishable.
In Indian Ex-Services League v. Union of India (1991) 2 SCC 104, this Court distinguished the decision in Nakara's case (supral and held that the ambit of that decision cannot be enlarged to cover all claim by retirees or a demand for an identical amount of pension to every retiree, irrespective of the date of 24 retirement even though the emoluments for the purpose of computation of pension be dtfferent.
In K.L. Rathee v. Union of India (1997) 6 SCC 7, this Court, after referring to various judgments of this Court, has held that Nakara case cannot be interpreted to mean that emoluments of persons who retired after a notified date holding the same status, must be treated to be the same.
In our view, therefore, the ratio in Nakara's case (supra) is not applicable in the facts of the present case.
Lastly, it is contended that against the decision of the Delhi High Court, an SLP was dismissed by this Court on 08.07.2004 and, therefore. the doctrine of merger applies. It is not disputed that the SLP was dismissed in limine without a speaking order. This question has been set at rest by a three-Judge Bench of this Court in Kunhayammed & Ors. v. State of Kerala & Anr. (2000) 6 SCC 359, where this Court after referring to a two-Judge Bench, of this Court in V.M.Salgaokar & Bros, (P) Ltd. v. CIT (2000) 5 SCC 373 held at page 375 (para
22) SCC as under:
25"22. We may refer to a recent decision, by a two-Judge Bench., of this Court in V.M.Salgaokar & Bros. (P) Ltd. v. CIT (2000) 5 SCC 373 holding that when a special leave petition is dismissed, this Court does not comment on the correctness or otherwise of the order from which leave to appeal is sought. What the Court means is that it does not consider it to be a fit case for exercising its jurisdiction under Article 136 of the Constitution. That certainly could not be so when appeal is dismissed though by a non- speaking order. Here the doctrine of merger applies. In that case the Supreme Court upholds the decision of the High Court or of the Trthunal. This doctrine of merger does not apply in the case of dismissal of a special leave petition under Article 136. When appeal is dismissed, order of the High Court is merged with that of the Supreme Court. We find ourselves in entire agreement with the law so stated. We are clear in our mind that an order dismissing a special leave petition. more so when it is by a non-speaking order, does not result in merger of the order impugned into the order of the Supreme Court."26
Therefore, when the special leave petition is dismissed by the Supreme Court under Article 136 of the Con:stitution. the doctrine of merger is not attracted.
For the reasons aforestated, the view taken by the Madras High Court that the clarficatory Executive Instructions in O.M. dated 11.05.2001 are an integral part of the O.M. dated 17.12.1998 clarifying the Policy Resolution of the Government dated 30.09.1997 and do not over-ride the original O.M. dated 17.12.1998 is correct law and it is, accordingly, affirmed. The view taken by the Delhi High Court that O.M. dated 11.5.2001 over-rides the original O.M. dated 17.12.1998 and creates two classes of pensioners does not lay down the correct law and is, hereby, set aside.
The net result is that the Civil Appeal Nos.31 74 and 3173 of 2006. preferred by the pensioners. are dismissed and the Civil Appeal Nos.3188,.3189 and 3190 of 2006, preferred by the employer Union of India, are allowed. The Judge ment and order of the Madras High Court dated 29.04.2005 is affirmed. The Judgement and Orders of the Delhi High Court dated 27 17.08.2005. 5.9.2005. 10.11.2005 and 3.8.2005 are set aside.
8. The learned counsel for the petitioner submitted the question that is decided in the aforesaid Supreme Court judgment is totally different from the question which is raised in the writ petition and therefore, he submits that judgment is of no assistance to the court in deciding this case.
9. We are unable to accept the said submission.
The judgment of the Supreme Court cited above clearly sets out the issues involving the arguments canvassed by the learned counsel. The very judgments which are referred to before us are being referred to in detail and the finding of the Apex Court. In our view, the said judgment squarely applies to the facts of all these cases. Even otherwise Part B of the Rules reads as under :-
The revised scales of pay mentioned in Column 4 of this part of the Notification for the posts mentioned in Column 2 have been approved by the Government. However, it may be noted that in certain cases of the 28 scales of pay mentioned in Column 4, the recommendations of the Pay Commission are subject to fuifillment of specfie conditions. These conditions relate inter alia to changes in Recruitment Rules, restructuring of cadres, redistribution of posts into higher grades, etc. Therefore, in those cases where conditions such as changes in Recruitment Rules, etc., which are brought out by the Pay Commission as the rationale for the grant of these upgraded scales, it will be necessary for the Ministries to decide upon such issues and agree to the changes suggested by the Pay Commission before applying these scales to these posts with effect from 01.01.1996. In certain other cases where there are conditions prescribed by the Pay Commission as prerequisite for grant of these scales to certain posts such as cadre restructuring, redistribution of posts, etc., it will be necessary for the Ministries/Department concerned to not only accept these pre-conditions but also to implement them before the scales are applied to those posts. It would, therefore. be seen that it is implicit in the recommendations of the Pay Commission that such scales necessarily have to take prospective effect 4 29 and the concerned posts will be governed by the normal replacement scales until then.
10. The argument of the learned counsel for the petitioner Is, the order passed by the authorities dated 14.1.1998 satisfies the conditions prescribed as aforesaid. The authorities have fixed the pension of the petitioner taking Into consideration the pay scale as prescribed In Part-B. We find ft difficult to subscribe with the said view.
11. The aforesaid requirements makes ft clear these conditions relate Inter alia to changes In Recruitment Rules, re-structuring of cadres, redistribution of posts Into higher grades etc. which Is a condition precedent for application of the scale mentioned In Part-B. That apart, ft also states ft Is Implicit In the recommendations of the Pay Commission that such scales necessarily have to take prospective effect and the concerned posts wifi be governed by the normal replacement scales since then.
3012. The intention is very clear. In that view of the matter the petitioners are not entitled to the bene fit as mentioned in Part-B and their pension has to be fixed with corresponding pay scale drawn by them as on the date of their retirement. But, it is clear the authorities were not clear about what the said Rules really mean t.
They understood that those Rules are meant for givin g benefit to the retired persons prior to the Rules at the prevailing scale. On that assumption pension was fixed and pension was paid at higher rate. None of the pensioners i.e. the petitioners are in any way responsible for those wrong fixation of the pension.
This is a case where both of them believe that they are entitled to the higher benefit. Though realising the mistake it was refixed, by virtue of the interim order granted by the order as well as this cour t, these petitioners had the benefit of getting pension at higher rate.
13. It was contended by the learned counsel for the petitioners in view of Rule 70 of CCS Pension Rules, once pension is fixed it should not be alter ed. The authorities have no power to after it to the disadvantage of the pensioners. In support of their contention Rule 70 which reads as under : -
70. Revision of Pension after authorisation:
(1)Subject to the provisions qf Rules 8 and 9, pension once authorized afte r final assessment shall not be revised to the disadvantage of the Governmen t servant, unless such revision becomes necessary on account of detection of a clerical error subsequently:
Provided that no revision of pension to the disadvantage of the pensioner shall be ordered by the Head of Office without the concurrence of the Department of Personnel and Administrative Reform s f the clerical error is detected after a per iod of two years from the date of authoriz ation of pension (2) For the purpose of sub-rule (1), the retired Government servant concerned shall be served with a notice by the Head of Office requiring him to refund the exc ess payment of pension within a period of two 32 months from the date of receipt of notice by him.
(3) In case the Government servant fails to comply with the notice, the Head of Office shall, by order in writing, direct that such excess payment, shall be adjusted in installments by short payments of pension in future. in one or more installments, as the Head of Office may direct.
A reading of the aforesaid provision makes it clear that there is no such absolute bar to alter the pension once fixed. If the revision become necessa ry on account of detection of a clerical error subsequently, under the aforesaid rules, the authorities are empowe red to revise the pension to the disadvantage of the pen sioner. Here is a case where they were paid pension prior to the Rules at the prevailing scale. By virtue of the Rules pensions were revised. It is on a wrong und erstanding of the provision they were given the ben efit of higher pension. Once the Government of India issu ed circulars clarifying the correct legal position, they have brought their actions in conformity with the circular which resulted in reduction of pension. Therefo re, we do not 33 see any merit in the contenti on that the authority had no jurisdiction to reduce the pension to the disadvantage of the pension ers
14. Most of these petitioners are defence persons who have served the country with distinction. Under those circumstances, thoug h we are finally disposing of these writ petitions accept ing the stand of the Government that they are not entitled to pension at the higher rate, pension or fam ily pension paid to the pensioners or widow of pensioners shall not be recovered. However, the autho rities are at liberty to pay the pension or family pensio n as re-determined by them by virtue of re-fixation from 1.6 .2012.
Sd! JUnG E rs JUDGE