Central Administrative Tribunal - Bangalore
Sri. S.R. Pavana Murthy S/O Late S.R. ... vs Union Of India (Uoi), To Be Represented ... on 19 February, 2007
ORDER
G. Sivarajan, J. (Vice Chairman)
1. These two cases have come up before this Full Bench on a reference made by the Hon'ble Chairman under Section 5(4)(d) of the Administrative Tribunal's Act, 1985 when a Division Bench of this Tribunal which heard the matters noted conflicting decisions in respect of the controversy involved in these two cases and the same was brought to the notice of the Hon'ble Chairman. The question referred are:
1. Whether this Tribunal is bound by the judgment as rendered by the Delhi High Court in S.C. Parasher case (C.W. No. 678/2003) as upheld by the Hon'ble Supreme Court by dismissing Union of India's SLP as well as order of this Bench in H.L. Nagaraja and Anr. v. Union of India as upheld by Karnataka High Court or we are bound by the Full Bench judgment rendered in batch case O.A. Nos. 504/2004 decided on 29-04.2005 S.R. Rajagopal and Ors. v. The Defence Pension Disbursing Officer and Ors. as well as T.R. Viswanathan and Ors. v. Union of India, dismissed on 8th June, 2005.
2. More specifically what should be the pension of Superintending Engineers particularly those who retired prior to 01.01.1996 and had been in the pay scale of Rs. 3700-5000 at the time of retirement, which was revised to Rs. 14300-18300.
2. Today when the matter came up for hearing Shri P.A. Kulkarni, learned Counsel for the applicant brought to our notice the memo dated 1-2-2007 and a photocopy of the judgment of the Hon'ble Supreme Court in K.S. Krishnaswamy etc. v. Union of India and Anr. 2007 AIR SCW 77 filed by him and submitted that the above questions referred to the Full Bench are no longer res integra and that the said questions are concluded by the said decision of the Hon'ble Supreme Court against these applicants
3. We have perused the judgment of the Hon'ble Supreme Court produced by the counsel for the applicants and find that both the questions are answered in the said judgment. We note that the Supreme Court was considering the appeals from the decisions of the Madras and the Delhi High Courts. The decision of the Madras High Court which took the same view as taken by the Supreme court was affirmed and the contrary view taken by the Delhi High Court was set aside. Thus the view taken by the Delhi High Court and the order of this Bench as upheld by the the Karnataka High Court does not lay down the correct law. The Full Bench decision rendered by the Bangalore Bench in the batch of cases OA Nos. 504/2004 decided on 29-4-2005 and followed by a Division Bench in T.R. Viswanathan v. Union of India by dismissing the OA on 8-6-2005 which took the view that the applicants are not entitled to pension with effect from 1-1-1996 based on the scale of pay of Rs. 14300-18300 though for different reasons, in view of the decision of the Supreme Court, lays down the correct legal position. The Superintending Engineers who retired prior to 1-1-1996 and were in the pay scale of Rs. 3700-5000 at the time of their retirement are not entitled to pension based on the revised scale of Rs. 14300-18300. They are entitled to pension based on the revised pay scale of Rs. 12000-16500 only which has already been granted.
4. Shri Kulkarni then submitted that, now that the questions referred to are decided by the Hon'ble Supreme Court as above, these two cases necessarily have to go before the Division Bench for disposal on the basis of the decision of the Supreme Court in K.S. Krishnaswamy supra. We have also heard Shri S. Prakash Shetty, learned Additional Central Government Standing counsel appearing for the respondents who submits that the cases on hand are covered by para-5&6 of the judgment of the Supreme Court. Counsel submits that both the facts and the law applied are identical to the facts and the law applicable in these two cases and therefore nothing survives for decision by the Division Bench. He, in short, submitted that it will only be a futile exercise by the Division Bench which has to be avoided. We find merit in the submission made by Shri Prakash Shetty. Para-5&6 of the judgment of the Hon'ble Supreme Court reads thus:
5. The appellants were holding the post of Superintending Engineers in All India Radio. They retired from service on attaining the age of superannuation between 1982 to 1985. Undisputedly, at the time of retirement, they were holding the scale of pay of Rs. 1500-2000. In the 4th Pay Commission, their scale was revised to Rs. 3700-5000. In the 5th Pay Commission Report, which was accepted w.e.f. 1.1.1996, their scale was correspondingly revised to 120016500.
6. The employees, who had rendered 13 years of service, were granted special grade in the pay scale of Rs. 2000-2250. This special scale of pay was confined to 20 senior incumbents. In the 4th Pay Commission, their scale was correspondingly revised to 4500-5700. In the 5th Pay Commission, this scale was correspondingly revised to 14300-18300 w.e.f. 1.1.1996. it is undisputed that the appellants never enjoyed the special scale of Rs. 2000-2250. They claimed the pensionary benefits on the basis of scale of Rs. 14300-18300, which was rejected by the High Court.
5. Admittedly, the applicants in these two cases retired on superannuation as Superintending Engineer on 1-8-1989 and 1-10-1985 respectively. Both of them were Superintending Engineers in the All India Radio at the time of their retirement and they were drawing salary on the basis of the revised pay scales of Rs. 3700-5000. As could be seen from para-14 of the Supreme court's judgment, OM dated 17-12-1988 speaks of the minimum pay in the revised scale of pay w.e.f. 1-1-1996 of the post last held by the pensioner, whereas the OM dated 11-5-2001 clarifies it as minimum of the corresponding scale as on 1-1-1996 of the scale of pay held by the pensioner at the time of superannuation/retirement. The Supreme Court observed 'that the clarification brought about in the OM dated 11-5-2001 is of the last post held by the pensioner as the last scale of pay held by the pensioner at the time of superannuation/retirement. It is further observed by the Supreme Court that "It is common knowledge that the corresponding increase in any Pay Commission is of the scale of pay and not of the post. The Supreme Court ultimately in para-17 of the judgment observed that the policy resolution dated 30-9-1997 that the ceiling on the amount of pension will be 50% of the highest pay in the Government and the subsequent clarification dated 17-12-1998 and 11-5-2001 clarifying the Government policy decision dated 30-9-1997 are complementary to each other and further observed that "in our view, therefore, the contention of the appellant that the O.M. dated 11.5.2001 overrides the original O.M. dated 17.12.1998, thereby creates two classes of pensioners is absolutely ill-founded and untenable." It is further observed in para-18 that "the Executive instructions dated 11-5-2001 neither override the Policy Resolution dated 30.9.1997 nor Executive Instructions dated 17.12.1998 clarifying the Policy Resolution dated 30.9.1997." Thereafter, in para-18 it is stated thus:
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 11.5.2001 have been validly made keeping in view the recommendations of the Pay Commission accepted by the Policy Resolution of the Government on 30.9.1997, clarified by Executive Instructions dated 17-12-1998. The Executive instructions dated 11-5-2001 neither override the Policy Resolution dated 30.9.1997 nor Executive Instructions dated 17.12.1998 clarifying the Policy Resolution dated 30.9.1997. The Executive instructions dated 11.5.2001 were in the form of further clarifying the Executive Instructions dated 17.12.1998 and do not override the same.
We also find that in para-5 of the judgment which we have already extracted it is observed that "Undisputedly, at the time of retirement, they were holding the scale of pay of Rs. 1500-2000. In the 4th Pay Commission, their scale was revised to Rs. 3700-5000. In the 5th Pay Commission Report, which was accepted w.e.f. 1.1.1996, their scale was correspondingly revised to 12000-16500." The Supreme Court in the above circumstances had rejected the contention of the appellants therein that their pensionary benefits have to be fixed on the basis of the pay scale of Rs. 14300-18300. In view of the aforesaid findings of the Supreme Court the facts of these two cases being identical nothing survives for the Division Bench to consider for taking a decision in these two OAs. Shri P.A. Kulkarni, learned Counsel for the applicant, in this context, has brought to our notice that the decision of the Supreme Court in K.S. Krishnaswamy's case supra is pending in review before the Hon'ble Supreme Court. According to us this cannot be a ground for remitting the matter to the Division Bench for final disposal. The applicants are also not without any remedy in such an event. We accordingly hold that there is no merits in these two cases. They are accordingly dismissed. In the circumstances, there will be no orders as to cost.