Central Administrative Tribunal - Delhi
G M Ragannadharao vs Union Of India on 24 September, 2010
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.2509/2001 This the 24th day of September 2010 Honble Shri Shanker Raju, Member (J) G M Ragannadharao r/o 50-24-22 TPT Colony, Seethammadhara Visakhapatnam, AP (PPO No.PEN/B-231/SER 90/3687GRC) ..Applicant (None for applicant) Versus 1. Union of India Ministry of Personnel, Public Grievances & Pensioners Department of Pension & Pensioners Welfare Through its Secretary, New Delhi 2. The Addl. Secretary to Govt. of India Ministry of Personnel, Public Grievances & Pensioners Department of Pension & Welfare Lok Nayak Bhawan, Khan Market New Delhi-3 3. The Financial Advisor & Chief Accounts Officer South Eastern Railway, Garden Reach Calcutta 43 (WB) ..Respondents (None for respondents) O R D E R
Applicant, who is more than 80 years of age, sought retirement from Indian Railways to join public sector undertaking, i.e., Rail India Technical and Economical Service (RITES) w.e.f. 30.4.1989. He ultimately retired from RITES on 31.5.1991 on attaining the age of superannuation. He commuted 1/3rd portion of his pension on 5.2.1990 and by another form filled up on 10.3.1990 the remaining 2/3rd pension was also commuted. His request for dearness allowance on 1/3rd of commuted pension and other benefits at par with the Central Government resulted in rejection vide impugned order dated 16.2.2001. Hence the present OA has been filed for seeking dearness relief on the 1/3rd portion of pension commuted from the date of commutation/retirement from PSU upto 31.12.1995 and consolidation of basic pay as per OM dated 24.10.1997 and payment of difference of consolidated pension and basic pension from 1.1.1996. Also prayed was to pay the dearness relief on the consolidated pension minus 2/3rd of basic pension upto the date of restoration of 1/3rd pension. Lastly, the payment of consolidated pension with dearness relief on full consolidated pension from the date of restoration as per the judgment of Apex Court in Union of India & another v. P.V. Sundara Rajan & another (1996) 2 SCC 187.
2. After hectic arguments on both sides, relying upon the directions issued by the Tribunal at Hyderabad Bench, the Tribunal passed an order dated 12.11.2003 and allowed the case of the applicant with a specific finding that he belongs to a category separate from those who commuted 100% of pension to be treated as a non-pensioner and relying upon P.V. Sundara Rajans case (supra), applicant was treated in category 2, who had commuted 1/3rd portion of the pension and rest of his is lump sum retiral benefits with a condition not to claim the same, not being amenable to the OM of 12.7.2000, attendant benefits were directed to be paid.
3. The aforesaid decision of the Tribunal was challenged by the South Eastern Railways, Calcutta before the High Court of Delhi by filing Civil Writ Petition No.532 of 2004. An order passed by the High Court on 28.8.2008 took cognizance of office memorandum dated 27.10.1997 and found that there is a typographical error in mentioning the OM of 27.10.1997 as 24.10.1997, which was not among the list of annexures and placed before the Tribunal by any of the parties. Non-discussion in reference to this document and the reasoning how it supports the case of applicant in OA, order passed by the Tribunal was set aside and the matter was remanded back by the High Court to this Tribunal in terms of OM dated 27.10.1997 and the case laws relied upon by the applicant and also including the decision of P.V. Sundara Rajans case (supra).
4. Matter has been listed so many times but due to non-availability of lawyers, it was not heard. Ultimately, it is listed on 16.9.2010 whereby despite pass-over, none appeared for the parties. As such, taking resort to Rules 15 & 16 of CAT (Procedure) Rules, 1987 and following the directions of the High Court, OA is being taken up for adjudication.
5. Inadvertently, the date of OM, which is sought to be considered as per the directions of Tribunal, has been wrongly mentioned but it is OM No.45/86/97-P&PW(A) Part-II dated 27.10.1997. The OM issued by the Ministry of Personnel, Public Grievances & Pensions, Department of Pensions & Pensioners Welfare is in the context of implementation of Governments decision on the recommendations of 5th Central Pay Commission (CPC) whereby the revision of pension on pre-1996 pensioners has been undertaken. This OM has applicability to those pensioners, who were drawing pension as on 1.1.1996 under CCS (Pension) Rules, 1972 and applies to all pensioners holding erstwhile in service in civil post. Existing pension has been defined in clause 3.1 (b) as the basic pension inclusive of commuted portion, if any, due on 31.12.1995 and covers all sorts of pension. Existing dearness relief in 3.1 (d) refers to the relief due to pensioners/family pensioners upto average CPI 1510. Existing pre-1996 pensioners/family pensioners will be consolidated w.e.f. 1.1.1996 with a methodology by adding together the existing pension/family pension. Dearness relief upto CPI 1510 i.e. @148%, 111% and 96% of basic pension as admissible vide Departments OM dated 20.3.1996 by adding interim relief I and interim relief II with fitment weightage @ 40% of the existing pension/family pension. This amount would be regarded as consolidated pension/family pension w.e.f. 1.1.1996. Those, who retired between 31.3.1985 and 31.12.1985, are in receipt of personal pension and this will continue to be granted as a separate element and will not be merged into the pension as consolidate above. As per clause 7 of the OM, in case of Central Government employees, who have been permanently absorbed in public sector undertaking/autonomous bodies will be regulated, which includes the case of the applicant, who served as Government and on retirement from Railway on 31.5.1991 from RITES on attaining the age of superannuation vide OM dated 12.4.1991. Having surrendered his 1/3rd portion of pension as well as 2/3rd portion of pension as terminal benefits w.e.f. 1.9.1990, the methodology adopted in clause 7 (a) of the OM ibid is that the pension of such absorbees will be adjusted and those, who have drawn one lump sum terminal benefits equal to 100% of their pensions and have become entitled to the restoration of 1/3rd commuted portion of pension as per Apex Courts decision in P.V. Sundara Rajan (supra), their cases would not be covered by these orders.
6. In this backdrop, a brief factual matrix is relevant to be highlighted.
7. As per Rule 37 (a) of CCS (Pension) Rules, 1972, if the Government servant opts for alternative of receiving the retirement gratuity and a lump sum amount in equal of pension in addition to the retirement gratuity is entitled on an application made a lump sum amount not exceeding the commuted value of 1/3rd of his pension, as can be admissible in accordance with the provision of special pension computation rules and terminal benefits equal to the commuted value of balance to pension less than 1/3rd value to be worked out as per schedule.
8. On grievance raised by COMMON CAUSE, A Registered Society & others v. Union of India, (1987) 1 SCC 142, for striking down certain provisions of the Commutation of Pension Rules applicable to civilian and defence pensioners which empowers the Government to recover more than what is paid to the pensioners upon commutation. The Apex Court in COMMON CAUSE case vide their judgment had decided to direct the respondent-Government to restore the pension after 15 years from the date of retirement and this has been made equally applicable to armed forces personnel.
9. In Welfare Association of Absorbed Central Government Employee in Public Enterprises & others v. Union of India & another, (1996) 2 SCC 187, the petitioners in that case had sought for restoration of 1/3rd pension after 15 years at par with Central Government servants with attendant benefits. The Apex Court in that case had categorized the employees in three categories, namely, (1) persons who had not commuted their pension and opted full monthly pension from the Government, (2) persons who have commuted 1/3rd of pension and drawing slight monthly pension reduce to the extent of commuted amount; and (3) persons who had commuted the full pension and were given any monthly pension, which had reduced to nil.
11. While dealing with the second category where retired Government servants who got 1/3rd pension commuted, the restoration of pension was denied by the Government in view of the OM dated 5.3.1987 wherein para 4 provides that:
4. Central Government employees who got themselves absorbed under Central Public Sector Undertakings/autonomous bodies and have received/ or opted to receive commuted value for 1/3rd of pension as well as terminal benefits equal to the commuted value of the balance amount of pension left after commuting 1/3rd of pension are not entitled to any benefit under these orders as they have ceased to be Central Government pensioners. the Apex Court in Welfare Association of Absorbed Central Government Employee in Public Enterprises (supra) has made the following observations, which read as under:-
9. From the above extracts, it will be seen that a clear-cut distinction is made in rule 37-A itself between one-third portion of pension to be commuted without any condition attached and two-third portion of pension to be received as terminal benefits with condition attached with it. It follows that so far as commutation of one third of the pension is concerned, the petitioners herein as well as petitioners in 'Common Cause' case stand on similar footing with no difference. So far as the balance of two-third pension is concerned, the petitioners herein have received the commuted value (terminal benefits) on condition of their surrendering of their right of drawing two-thirds of their pension. This was not the case with the petitioners in 'Common Cause' case. That being the position the denial of benefit given to 'Common Cause' petitioners to the present petitioners violates Article 14 & 16 of the Constitution. The reasoning for restoring one-third commuted pension in the case of 'Common Cause' petitioners equally applies to the restoration of one-third commuted pension in the case of these petitioners as well.
10. No doubt the Government while declining to consider the case of petitioners favourably took into account a decision of this Court in Welfare Association of Absorbed Central Government Employees in Public Enterprises v. Union of India reported in 1991 (2) SCC 265, holding that the petitioners in 'Common Cause' case stand on a different footing than that of the petitioners in the present case. In that judgment Rule 37-A was not brought to the notice of the Court. Another reason given by the Government was that the petitioners on commuting their pension in full cease to be Central Government pensioners. This is too broad a contention to be accepted as no statute or rule is quoted in support of this contention. This stand taken by the Government does not appear to be correct in view of their own counter-affidavit filed in this case. In para 8 at page 14 of the counter affidavit it has been stated as follows :-
"It would be seen from (b) above that the twothird terminal benefits received by the absorbees is nothing but pension. Thus, the absorbees who have opted for lump sum payment have not only commuted one-third of their pension but also the remaining portion of two-third pension which is termed as "terminal benefits". The absorbees have in fact commuted the entire pension and not onethird of pension."
11. It would be seen from (b) above, two-third terminal benefits received by the absorbees is nothing but pension. Further as per the condition imposed in the absorption order, the family pension when not provided in the public undertakings in which the retired Government servants were absorbed, the payment of family pension is continued by the Government. The relevant condition reads as follows :-
"(ii) As regards entitlement to family pension, the condition imposed reads -
"On his permanent absorption in the Company his family will be eligible for family pension subject to the provisions of Rule 54 of CCS (Pension) Rules, 1972 and any other orders issued by the Government of India from time to time provided that he is not covered by any other family pension scheme applicable to the Company Staff."
12. This was also the condition incorporated in respect of person who had opted for one-third commutation. This also indicates that the stand of the Government is not correct. Therefore, the denial of restoration of one-third commuted pension is not justified.
13. If after the expiry of 15 years, the pensioners who have opted for one-third commutation, becomes entitled to restoration of pension on the ground that the lump sum amount paid had got adjusted before the said period as held in 'Common Cause' case, there is no good reason for not applying the same to the petitioners who have commuted their one-third portion of the pension under Rule 37-A of the Pension Rules 1972 without any commitment for this portion of commutation. Presumably the respondent realising the fallacy have withdrawn the scheme of permitting commutation of full pension by O. M. No. 4/42/91-P & PW (d) dated 31-3-1995. Para 3 of the Office Memorandum reads as follows :
"3. The proposal to review the existing terms and conditions of absorption had been under consideration of the Govt. for quite sometime past. The President is now pleased to ........(sic) that the existing terms and conditions of absorption shall stand partially modified to the extent indicated below :-
(a) The existing facility of receiving capitalisation value equivalent to 100% commutation of pension on absorption shall stand withdrawn;
(b) The existing facility to draw pro rata monthly pension from the date of absoprtion (with option to commute 1/3rd pension wherever admissible shall continue to exist."
14. This means this issue will not arise in future.
15. For the foregoing reasons, we hold that the petitioners are entitled to the benefits as given by this Court in 'Common Cause' case so far as it related to restoration of one-third of the commuted pension. Consequently, the impugned para 4 of Office Memorandum dated 5-3-1987 is quashed. The writ petitions are accordingly allowed to the extent indicated above. No costs.
12. As the Government had not complied with the directions of the Apex Court, as the respondents have literally restored 1/3rd of the commuted pension and denied other attendant benefits as available to other Central Government pensioners, a Contempt Petition was filed by the Welfare Association of Absorbed Central Government Employees in Public Enterprises, (1999) 9 SCC 58 wherein following observations have been made:-
3. Thereafter, it appears that the respondents construing the judgment of this Court literally restored one-third of the commuted pension and denied all other attendant benefits as made available to the other Central Government pensioners. Aggrieved by that, the petitioners have moved this Court once again by filing this Contempt Petition.
4. Shri Altaf Ahmad, learned Additional Solicitor General, once again attempted to re-open the issue that the petitioners cannot be treated at par with the Central Government pensioners even though such a contention was raised and negatived by this Court in the said judgment. For the reasons already stated in the judgment, we hold that the petitioners have to be treated at par with the Central Government pensioners. When we directed the respondents to restore the one-third portion of the commuted pension, it was intended to be given effect to in letter and spirit, which means that the restoration of pension must be with attendant benefits as given to the Central Government pensioners. The learned Additional Solicitor General brought to our notice the statement in paragraph 15 of the Additional Affidavit on behalf of Respondents Nos. 1 to 3, which reads as follows :-
"In the case of PSU absorbees, they have drawn lump sum capitalized value for the 2/3rd portion of pension as one time settlement. This portion is therefore no longer available to the absorbed employees in the nature of pension and according to the Supreme Court Judgment dated 15-12-1995 the petitioners have received the commuted value (terminal benefits) on condition of their surrendering their rights of drawing 2/3rds of the pension. In view of this, the absorbed employees are not entitled to the grant of dearness relief on this 2/3rd commuted portion of pension (terminal benefits)."
5. It will be noticed that the Central Government pensioners are given revision in the pension, which was not given to the petitioners on the ground that this Court had ordered only restoration of pension.
6. After hearing counsel on both sides, we make it clear that the respondents are liable to restore not only the pension as ordered by this Court in the said judgment, but also all the attendant benefits as given to the Central Government pensioners. We hold that there was some genuine doubt on the part of the respondents in construing and giving effect to the judgment of this Court and, therefore, there is no contempt. We now direct the respondents to comply with the judgment of this Court as explained hereinbefore within three months from this date.
13. In V. Kasturi v. Managing Director, State Bank of India, Bombay and another, (1998) 8 SCC 30, the Apex Court had formulated the legal position, which reads as under:-
21. It is now time for us to take stock of the situation. From the aforesaid resume of relevant decisions of this Court spread over years to which our attention was invited by learned counsel for the respective parties, the following legal position clearly gets projected.
22. If the person retiring is eligible for pension at the time of his retirement and if he survives till the time by subsequent amendment of the relevant pension scheme, he would become eligible to get enhanced pension or would become eligible to get more pension as per the new formula of computation of pension subsequently brought into force, he would be entitled to get the benefit of the amended pension provision from the date of such order as he would be a member of the very same class of pensioners when the additional benefit is being conferred on all of them. In such a situation the additional benefit available to the same class of pensioners cannot be denied to him on the ground that he had retired prior to the date on which the aforesaid additional benefit was conferred on all the members of the same class of pensioners who had survived by the time the scheme granting additional benefit to these pensioners came into force. The line of decisions tracing their roots to the ratio of Nakara's case would cover this category II.
14. The Apex Court in P.V. Sundara Rajans case (supra) treated the Contempt Petition as Interlocutory Application and observed as under:-
10. One of main grievance urged in the applications is that all Central Government pensioners are entitled to dearness relief on sanctioned basis pension as revised from time to time, regardless of whether they have commuted any part of their pension. It has been claimed that the benefit is to be calculated at applicable rates on the amount of pension including the amount of commuted pension but these benefits have been restored to the petitioners only partly at the notified rates on one-third of the notional pension. It has been submitted that they are at par with other Central Government pensioners.
11. The dearness relief on pension has been granted to pensioners to compensate them for the erosion in the value of money due to rise in the cost of living. It seems clear that the Government has permitted to the applicants dearness relief calculated only on one-third part of the pension restored while in case of other pensioners, the dearness relief is calculated on full pension including the commuted part of pension. As already noticed, the applicants are to be treated on the same footing as other Central Government employees in so far as the question of restoration of one-third of commuted pension is concerned and are entitled to the benefits as given in Common Cause case (AIR 1987 SC 210 : 1987 Lab IC 210). In this respect, it would also be useful to notice that the 'pension' as defined in Central Civil Services (Pension) Rules, 1972 does not include dearness relief. Rule 3(1)(o) reads as under :-
"3.(1) (a) 'Pension' includes gratuity except when the term pension is used in contradistinction to gratuity, but does not include dearness relief;"
12. We may also reproduce Rule 55-A :-
55-A. Dearness Relief on Pension/Family Pension.- (i) Relief against price rise may be granted to the pensioners and family pensioners in the form of dearness relief at such rates and subject to such conditions as the Central Government may specify from time to time.
(ii) If a pensioner is re-employed under the Central or State Government or a Corporation /Company/ Body/Bank under them in India or abroad including permanent absorption in such Corporation/ Company/Body/Bank, he shall not be eligible to draw dearness relief on pension/family pension during the period of such re-employment.
(iii) Deleted"
13. The Government instructions also show that the dearness relief is granted to compensate the pensioners for erosion in the value of money due to rise in the cost of living. Anything which is not part of pension has to be paid in full in so far as those who have commuted one-third pension. Nothing of substance could be shown by Mr. Altaf Ahmed, learned Additional Solicitor General, so as to deprive the grant of benefit of dearness relief on full pension to these public sector absorbees at par with Central Government pensioners. Directors in this regard have been issued by this Court from time to time but applicants are still being deprived of this benefit. We give to the respondents a final opportunity to grant to the applicants the benefit of dearness relief on pension as aforesaid within a period of three months. The applicants are, however, not entitled to any other benefit claimed in the applications.
14. The parity claimed by Lt. Col. Malhotra and other absorbees who had commuted 100% pension, in our view, is entirely misplaced. The contention that what is commuted or given up is an amount and not the right to receive pension or right to receive post-commutation revision and attendant benefits including dearness relief on the gross entitled pension on the dates they were granted to other Government pensioners, is only illusory. The decision in the case of State of T.N. v. V. S. Balakrishnan, 1994 Suppl (3) SCC 204 : (1994 AIR SCW 3277) on which reliance was placed by Mr. Gopal Subramanium, Senior Advocate, has no applicability to the point in issue. Those who commuted 100% pension continue to remain non-pensioners till their pension is restored. In Welfare Association Case (1998 AIR SCW 1700 : AIR 1998 SC 2862) (supra), persons who commuted the full pension and who will not be given any monthly pension by deeming monthly pension to have been reduced to nil has been treated as a separate category. Those who commute 100% pension are not entitled to the benefit of dearness relief on full pension or other benefits as claimed herein. We also do not find any discrimination in so far as this class is concerned.
15. The grant of pension and payment of lump sum amount to a person on absorption in or under a Corporation, Company or body under the Commutation of Pension, Rules of Railways as laid down under Rule 54 of Chapter V read as under:-
54. Payment of lump-sum amount to persons on absorption in or under a Corporation, Company or body,- Where a railway servant referred to in rule 53 elects the alternative of receiving the death-cum-retirement gratuity and a lump-sum amount in lieu of pension, he shall, in addition to the death-cum-retirement, be granted-
on an application made in this behalf, a lump-sum amount not exceeding the commuted value of one-third of his pension as may be admissible to him in accordance with the provisions of the Railway Servant (Commutation of Pension) Rules, 1993; and terminal benefits equal to the commuted value of the balance amount of Pension left after commuting one-third of pension to be worked out with reference to the commutation Table in Appendix to the Railway Servants (Commutation of Pension) Rules, 1993 on the date of his resignation subject to the condition that the railway servant surrenders his right of drawing two-third of his pension.
16. In the light of decision of the Apex Court making applicable the decision to restore the pension after 15 years has been made applicable by the Department of Pension and Pensioners Welfare to those absorbed in public sector undertakings vide Office Memorandum dated 13.9.1996. According to the aforesaid, Central Government employees, who got themselves absorbed in public sector undertakings and opted to receive commuted value of 1/3rd of pension as well as terminal benefits equal to the commuted value of the balance amount of pension would not be entitled to any benefit as ceased to be Govt. pensioners but in view of the COMMON CAUSE (supra), their 1/3rd pension is to be restored after 15 years and they shall have to apply to the respective Ministry/Department from where they had required and were paid lump sum commuted value of pension for the purpose of getting the benefit of OM.
17. Vide OM dated 31.1.1986 issued by the DOP&T regarding appointment of Central Government servants in the Central public enterprises on immediate absorption basis, as per clause (4) (ii) the officer eligible for pension should exercise an option within 6 months of the date of his resignation for either of the following two alternatives:-
(a) Pro-rata monthly pension and death-cum-retirement gratuity as admissible under the relevant rules.
(b) Pro-rata gratuity and a lumpsum amount in lieu of pension worked out with reference to the commutation tables applicable on the date of resignation. It is further stated in this OM that where no option is exercised, the employee will be governed by alternative (a) above. Option once exercised shall be treated as final and any further liberalization of Pension Rules decided upon by Government after the date of resignation of a Central Government servant to join the public enterprise will not be extended to him.
18. By a subsequent Memorandum issued on 12.7.2000 by the Department of Pension & Pensioners Welfare, the decision of the Apex Court in the case of P.V. Sundara Rajan (supra) has been given effect to by laying down the following guide-lines:-
The modalities of implementing Supreme Court Judgment dated 26.4.2000 has been under active consideration of the Government. The President is now pleased to decide that Govt. servants who had drawn lumpsum payment on absorption in a PSU/Autonomous Body and have become entitled to the restoration of 1/3rd commuted portion of pension in terms of the Supreme Court Judgment dated 15.12.1995 shall, apart from the payment of revised restored amount of 1/3rd commuted portion of pension, be also entitled to the payment of dearness relief on full pension from the date of restoration, instead of dearness relief on the revised restored amount of 1/3rd commuted portion of pension. In other words, dearness relief shall be payable on full pension i.e. the revised pension which the absorbed employee would have received on the date of restoration of 1/3rd commuted portion of pension had be not drawn lumpsum payment on absorption. The payment of dearness relief will, however, be subject to the conditions laid down in para 5 of O.M. dated 14th July 1998.
19. It is pleaded in the OA that in view of the decision of the Apex Court in Welfare Associations case (supra), while dealing with the Contempt Petition, insofar as persons, who have absorbed and had commuted 1/3rd of their pension and the objection taken by the Additional Solicitor General that the petitioners therein cannot be treated at par with the Central Govt. pensioners, the Apex Court by taking note of this held that in such a case, it cannot be construed that they cannot be treated at par with the Central Govt. pensioners and in their cases the benefits of revision of pension has been allowed and the attendant benefits given to the Central Govt. employees should also be extended to them.
20. Absorbees not only received restoration of pension but also other attendant benefits. As reliance of V. Kasturis case (supra) is to the effect that if the person retired is eligible for pension at the time of retirement, he would be entitled to the benefit of amended pension provision from the date it is applicable to the same class of pensioner as additional benefits are admissible. To substantiate this, plea of discrimination without any object sought to be achieved and contrary to Article 14 and 16 of the Constitution of India is raised.
21. It is further stated in the OA that the Coordinate Bench of Hyderabad Bench of this Tribunal in the matter of R. Rama Murthy v. Union of India & another In O.A. No. 1345/2001 decided on 28.11.2002 has held that the applicant, who had retired, was absorbed in public sector undertaking and had commuted only 1/3rd of the pension without any condition and commuted the remaining 2/3rd portion of the pension receiving terminal benefits subject to the condition that he would not claim the same. The applicant therein became entitled to restoration of 1/3rd of the full commuted pension after the expiry of 15 years with all attendant benefits. In this decision, the decision of the Apex Court in P.V. Sundara Rajans case (supra) has also been discussed.
22. On the other hand, though none appeared for the respondents even after the second call but in the reply they have contested the OA by stating that in view of the decision of the Apex Court and in the light of OM dated 12.07.2000 to which no challenge has been put by the applicant, the case of the applicant, who had surrendered not only 1/3rd portion of the pension but also 2/3rd portion of the pension as terminal benefits w.e.f. 01.09.1990, would be treated as a commutation of 100% of the pension and in that event, the same cannot be restored. In that case, in accordance with the decision of the Apex Court in P.V. Sundara Rajans case (supra) and in the light of the observations made in an interlocutory application on behalf of Lt. Col. Malhotra, the applicant would be treated as non-pensioner and is not entitled to the benefit of dearness relief on full pension or other benefits.
23. In the rejoinder, the applicant has reiterated his earlier pleas and stated that OM as referred to above has not been incorporated in the reply and the applicant has no occasion to challenge its vires.
24. I have carefully perused the pleadings made by the applicant in the OA as also the reply filed by the respondents.
25. In Common Cause case (supra), the claim of the Govt. servants to restore the commuted value of their pension on completion of 15 years from the date of superannuation was allowed by the Apex Court.
26. In Welfare Assn. of Absorbed Central Govt. Employees case (supra), there were three categories of the persons described. The second category was discussed, who had commuted 1/3rd portion of pension and would draw a slice monthly pension reduced to the extent of commuted amount. However, in this case, the persons who had commuted full pension, their cases had not been adjudicated and they have been treated as a separate category. However, in the aforesaid judgment, para 4 of the OM dated 5.3.1987, which provides that those Central Govt. employees, who got themselves absorbed in the public sector undertaking and have opted to receive commuted value of 1/3rd of pension as well as terminal benefits equal to the commuted value to the balance amount of pension, are not entitled to any benefit and quashing the same, benefits were granted to the absorbees at par with the Common Cause case (supra). However, relating to category of persons have commuted 1/3rd of pension, when the Govt. has not complied with the directions and had not given the benefits at par with, CPs were filed and the same were disposed of in Welfare Assn. of Absorbed Central Govt. Employeess case (supra) wherein one of the objections put forth by the Additional Solicitor General to the effect that once 2/3rd portion of pension has been capitalized as one time settlement, this portion is no longer applicable to the absorbed employees. As such they are not entitled to the grant of dearness relief on this 2/3rd commuted portion of the pension. However, noticed that the Central Govt. pensioners are given revision in the pension, which has been denied to the absorbees on the ground that the only relief which has been granted to the absorbees is restoration of the pension, the Apex Court delivered the decision and held that the absorbees are not only entitled for restoration of the pension but also the attendant benefits at par with the Central Govt. pensioners. In my considered view the only consideration which could be given to the aforesaid direction is irrespective of their capitalized value of 2/3rd portion of pension as one time settlement and the right of absorbees to restore the attendant benefits on the ground of their being non-pensioners cannot be round-off. They are to be treated at par with Central Govt. pensioners and are entitled for the relief in the form of attendant benefits.
27. In P.V. Sundara Rajans case (supra), which has been filed by the absorbees to the effect that the Central Govt. pensioners are entitled to dearness allowance relief on centralized basis and their pensions have been revised from time to time irrespective of any part of the pension being commuted. The benefits are to be calculated at the applicable rates on the amount of pension including the amount of commuted pension to restore the benefit of 1/3rd of the notional pension. They cannot be treated differently from the Central Govt. pensioner. In this backdrop, the Apex Court reiterated that the absorbees are to be treated at the same footing as Central Govt. pensioners and held that dearness relief is to compensate to pensioners for rational erosion in the value of money due to size in the cost of living. In any case, it is not a part of pension and it has to be paid in full, insofar as those who have commuted 1/3rd portion of the pension is concerned and held that the petitioners therein are entitled for benefits of dearness relief on pension. The Apex Court has discussed the case of intervenor, who had commuted 100% of pension by holding that by commuting 100% of pension, one remains non-pensioner till the pension is restored and was treated as a separate category. This grievance was not adjudicated in Common Cause case (supra) by the Apex Court whereas in the instant case it is not disputed that the applicant has commuted 1/3rd portion of the pension unconditionally and commuted remaining 2/3rd portion of pension receiving the terminal benefits subject to the condition that he would not claim the same. In this view of the matter, the applicants case cannot be brought in the category of persons who had commuted 100% of their pension. The decision of Hyderabad Bench of this Tribunal in R. Rama Murthy (supra) by taking note of the decision of the Apex Court in the case of P.V. Sundara Rajan (supra) had held that in the aforesaid situation where 2/3rd portion of the pension receiving terminal benefits with a condition as opted by the persons who had commuted 1/3rd of the pension unconditionally and the applicant therein was not only entitled to restoration of 1/3rd portion of the pension on the full pension after expiry of 15 years but also attendant benefits including dearness relief on full pension, in view of the decision of the Apex Court in Welfare Association of Absorbed Central Government Employee in Public Enterprises (supra).
28. Having regard to the above, to which I fully agree, the case of the applicant cannot be brought to the category of a person who had commuted 100% of pension. In that event, the decision on Contempt Petition by the Apex Court in Welfare Association of Absorbed Central Government Employee in Public Enterprises (supra) wherein the Apex Court had allowed the attendant benefits to the petitioner therein, in all fours, covers the case of the applicant herein as well.
29. Insofar as OM dated 12.7.2000 and the interpretation of implementation of the decision of Apex Court in P.V. Sundara Rajans case (supra) is concerned, the same has been made on the strength that a person, who is absorbed and commuted 1/3rd portion of the pension, is entitled to the payment of dearness relief on full pension from the date of restoration of 1/3rd of commuted pension and the dearness relief shall be payable on the revised pension, which the absorbees would receive on restoration of 1/3rd of commuted pension, which is on the strength that such a category is a separate category having commuted 100% of pension is to be treated as a non-pensioner and it is only after 15 years from the date of option the status of pensioner would be restored and then the benefit of dearness relief would be granted. Thus, according to the decisions of the Apex Court in P.V. Sundara Rajan (supra) as well as in Welfare Association of Absorbed Central Government Employee in Public Enterprises (supra), the stand taken by the respondents in their reply is contrary to the law laid down by the Apex Court. Applicant, who has to be treated as category 2 and who had commuted 1/3rd portion of the pension and rest of his is lump sum retiral benefits with a condition not to claim the same, would not be covered by the aforesaid OM. As such, I do not find any impediment for the applicant to have accorded the benefits, as prayed for and the Office Memorandum dated 12.7.2000, which has not been impugned, shall not apply to the case of the applicant.
30. In the above backdrop, the claim of the applicant as category 2 will be treated as 100% commutation of benefits but lump sum retiral benefits to the extent of 2/3rd would not be construed. Accordingly, the embargo in OM, referred to ibid, i.e., dated 27.10.1997, would be not attracted and applicant being exception to it, OM has applicability in his case for the relief of consolidated pension.
31. In the light of above, this OA is allowed. Respondents are directed to allow dearness relief on the 1/3rd portion of pension commuted from the date upto 31.12.1995 and to consolidate the pension in terms of OM dated 27.10.1997 and pay the difference of the consolidated pension and basic pension from 1.1.1996. Respondents are also directed to pay dearness relief on the consolidated pension minus 2/3rd of basic pension upto the date of restoration of 1/3rd pension. Decision in P.V. Sundara Rajans case (supra) may also be applied for payment of consolidated pension. This shall be disbursed to the applicant with arrears, within a period of three months from the date of receipt of a copy of this order. No costs.
( Shanker Raju ) Member (J) /sunil/