Central Administrative Tribunal - Delhi
M P Tyagi vs M/O Home Affairs on 11 March, 2016
Central Administrative Tribunal
Principal Bench
TA No. 35/2013
Order Reserved on: 08.03.2016
Order Pronounced on: 11.03.2016
Hon'ble Shri Justice Syed Rafat Alam, Chairman
Hon'ble Dr. B.K. Sinha, Member (A)
M.P. Tyagi,
Former State Election Commissioner (Delhi),
D-512, Humsab CGHS Ltd. Plot 14,
Sector-4, Dwarka, New Delhi-75 -Applicant
(By Advocate: Shri Naresh Kaushik)
VERSUS
1. Union of India,
Through its Secretary,
Ministry of Home Affairs,
North Block, New Delhi
2. Lieutenant Governor, Delhi,
Raj Niwas, Delhi
3. Govt. of NCT of Delhi,
Though its Chief Secretary,
Players Bhawan, Indraprastha Secretariat,
IP Estate, New Delhi -Respondents
(By Advocates: Shri Rajinder Nischal for respondent No.1)
Ms. Ritika Chawla for respondent Nos.2 & 3)
ORDER
By Hon'ble Dr. B.K. Sinha, Member (A):
The instant OA was heard on 04.02.2014 following which the orders were reserved for pronouncement. However, during the course of consideration, the parties were required to clarify the effect of amendment to Rule 10 of National Capital Territory of Delhi (Conditions of Services and Tenure of Office) (Amendment) Rules, 2001 (hereinafter 2 referred to as 'Rules 2001') and were also required to provide a copy of the amended Rules (refer Tribunal's order dated 07.07.2015). Accordingly, the OA finally came to be heard on 08.03.2016. During the course of hearing, Sh. Naresh Kaushik, learned counsel for the applicant also produced a copy of the decision of Hon'ble High Court of Delhi in WP(C) No.7859/2001 decided on 19.02.2002 related to the subject under dispute and drew our attention to the observations made in respect of the applicant of the instant case as also the amendments made vide Rules 2001. Accordingly, the matter is being disposed of on consideration of fresh facts/documents introduced during the course of hearing.
2. The short question under consideration is that whether the applicant, who served as State Election Commissioner of Government of NCT of Delhi from 13.12.2001 to 12.12.2004, is entitled to pension as per the amended Rules 5 and 6 read with Rule 10 of Rules 2001.
3. The facts of the case, in brief, are that the applicant was, admittedly, a member of the Indian Administrative Service, UP Cadre, who superannuated from the same w.e.f. 30.11.2000 and was sanctioned pension for the services rendered by him in the cadre w.e.f. 01.12.2000. Subsequent to this, the applicant was appointed as the 3 State Election Commissioner by the Administrator, Govt. of NCT of Delhi w.e.f. 13.12.2001 under the provisions of Article 243K of the Constitution of India and Section 7 of the Municipal Corporation Act, 1957. In the meantime, Rules 5 and 6 were amended w.e.f. 3.12.2002 and Rule 10 was added under the provisions of which the applicant became entitled to receive full pension equal to that of the Secretary to Government of NCT of Delhi. He submitted several representations to that effect to the Administrator of GNCT of Delhi, but to no avail. The Department rejected his claim vide their letters dated 9.6.2005 and 9.8.2005. On 20.01.2006, the applicant again filed a representation for reconsideration, which was rejected by the respondent No.2 vide communication dated 20.02.2006. Thereafter, the applicant approached the Hon'ble High Court of Delhi vide WP(C) No. 6094/2006, which has been transferred to this Tribunal vide order dated 23.05.2013. For the sake of clarity, the order is extracted as below:-
"1. The petitioner was an employee of the Government of NCT of Delhi. Disputes as to service conditions including payment of emoluments between the employees of the Government of NCT of Delhi, with Government of NCT of Delhi have to be decided by the Central Administrative Tribunal under the Administrative Tribunals Act, 1985.
2. Counsel for the parties pray and accordingly, this petition is transferred to the Central Administrative Tribunal, Principal Bench, New Delhi.
3. Parties to appear before the Registrar, Central Administrative Tribunal, Principal Bench, New Delhi on 04.07.2013. The Registry to process the file so that the same is available to the Registrar, Central Administrative Tribunal, Principal Bench, New Delhi on the date fixed."4
4. The applicant has prayed for the following reliefs:-
"a. allow the present petition;
b. issue a writ of mandamus and direct the respondents to compute and disburse to admissible pension to the petitioner for his tenure as Delhi State Election Commissioner w.e.f. date of his entitlement along with appropriate rate of interest. c. issue a writ of certiorari for quashing the impugned Communications dated 9th June, 2005, 9th August, 2005, Advise of the Finance Deptt. (A/Cs) and communication dated 20th February, 2006 (Annexure P/7, P/8, P/13(colly) respectively); and d. pass such other order(s) and direction(s) as are deemed fit and proper in the facts and circumstances of the case."
5. The respondents have filed counter affidavit contesting the claim of the applicant. The basic argument of the respondents is that the applicant has held the office of State Election Commissioner, GNCT of Delhi, after having rendered qualifying service of 33 years by him as IAS. He was in receipt of full pension for the services rendered to the IAS. He has no claim or entitlement to receive double pension for fresh tenure of three years service as State Election Commissioner. Representation of the applicant was duly examined and he was communicated vide letter dated 09.08.2005, which is reproduced as under:-
"I am directed to refer to the Govt. of NCT of Delhi's letter No. F.8/21/89/SI/Part/904 dated 4th May, 2005 on the subject mentioned above and to confirm that Shri M.P. Tyagi being already in receipt of full pension for the qualifying service of 33 years will have no claim for any pension for the services rendered by him as State Election Commissioner for Govt. of NCT of Delhi for a period of three years after his superannuation."5
6. The applicant has submitted rejoinder application contesting the averments made in the counter affidavit. The applicant has pointed out contradictions in the counter affidavit whereby at one place the respondents oppose the claim of the applicant for pension by stating that "double pension" could not be provided for his tenure as Election Commissioner and subsequently they state that the applicant is already getting full pension for his tenure as an IAS and therefore, he is not entitled for additional pension for services as State Election Commissioner. It has been clarified that the applicant did not seek relief for inclusion of past service as IAS officer and the period spent as State Election Commissioner. The applicant seeks relief to commute and disburse the admissible pension for him for his tenure as Delhi State Election Commissioner w.e.f. date of his entitlement along with appropriate rate of interest. The applicant has further submitted that the respondent No.1, Ministry of Home Affairs, does not have any locus standi to interpret rules applicable to the State Election Commissioner of Govt. of NCT of Delhi.
7. Having carefully perused the pleadings and heard the learned counsel for the parties, following questions need to be determined by us:-
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(i) Whether the applicant is entitled to the pensionary benefits under provision of Rule 6(2) of Rules, 1993 read with Sections 3(1) and 7 (1) of the Delhi Municipal Corporation Act, 1957 [hereinafter referred to as the Act, 1957];
(ii) Whether the amendment made vide Rules 2001 has served anyway to impinge upon the rights of the applicant in drawing his pension?
8. Now we proceed to examine the issues. Insofar as the first of the issues is concerned, the provisions for Gram Panchayats and Municipal Bodies were incorporated into the Indian Constitution vide 73rd and 74th amendment to the Constitution in the year 1992. Vide this amendment, both the Gram Panchayat and the Urban Municipalities were made constitutional bodies and their elections, tenure, suspension etc. were regulated by the constitutional provisions incorporated into Article 243. Article 243K provided for State Election Commissioner having the powers of superintendence, direction and control of the preparation of the electoral rolls for and the conduct of all elections to the Panchayats in a State Election Commission consisting of State Election Commissioner. The State Election Commissioner was to be removed from office in a manner applicable to the Judge of 7 the High Court and the conditions and service would not be varied to his disadvantage. For the sake of clarity, Article 243K is extracted below:-
"243K: ELECTION TO THE PANCHAYATS The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election commissioner to be appointed by the Governor.
(2) Subject to the provisions of any law made by the Legislature of a State the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine:
Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like ground as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not varied to his disadvantage after his appointment.
(3) The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause(1).
(4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats."
9. Likewise Article 243ZA provided in respect of Municipalities:-
"243ZA: ELECTIONS TO THE MUNICIPALITIES (1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to the Municipalities shall be vested in the State Election Commissioner referred to in article 243K.
(2) Subject to provisions of this Constitution, the Legislature of a State may, by law, make provisions with respect to all matters relating to, or in connection with, elections to the Municipalities."8
10. Section 7 of the Delhi Municipal Corporation Act provided in conjunction to the provisions of the Constitution:-
"ELECTION TO THE CORPORATION.
(1) The Superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Corporation shall be vested in the Election Commission of the National Capital Territory of Delhi consisting of an Election Commissioner to be appointed by the Administrator.
(2) Subject to the provisions of any law made by the Legislative Assembly of the National Capital Territory of Delhi, the conditions of service and tenure of office of the Election Commissioner shall be such as the Administrator may be rules determine.
Provided that the Election Commissioner shall not be removed from office except in a like manner and on the like grounds as a Judge of High Court and the condition of service of the Election Commissioner shall not be varied to the disadvantage after his appointment. (3) The Administrator shall, when so requested by the Election Commission make available to that Commission such staff which the Administrator considers necessary for discharge of the functions conferred on the Election Commission by sub-section(1)."
11. The Government of NCT of Delhi enacted the Election Commission of NCT of Delhi (Condition of Service and Tenure of Office) Rules, 1993 (hereinafter referred to as "Rules 1993"). Rule 3 of the Rules 1993 provided as under:-
"3. (i) There shall be paid to Election Commissioner a salary in the scale of Rs.7300-100-7600:
Provided that if a person who immediately before the date of assuming office as the Election Commissioner was in receipt of, or being eligible so to do, had elected to draw, a pension (other than a disability or wound pension) in respect of any previous service under the Government of the Union or under Govt. of a State, his salary in respect of service as the Election Commissioner shall be reduced-
(a) by the amount of that pension; and 9
(b) if he had, before assuming office, received in lieu of a portion of the pension due to him in respect of such previous service, the commuted value therefore, by the amount of that portion of the pension:
Provided further that in no case the Election Commissioner shall be paid the salary less than what was admissible to him at the time of retirement prior to his appointment as Election Commissioner."
12. Rule 4 of the Rules 1993 provided that the Election Commissioner shall hold office for a term of three years from the date on which he assumes his office or attains the age of 65 years, whichever is earlier.
13. Rule 5 of the Rules 1993 provided as under:
(1) A person who immediately before the date of assuming office as the Election Commissioner was in service of Govt. may be granted during the tenure of office but not thereafter, leave in accordance with the rules for the time being applicable to the Service to which he belonged before such date and he shall be entitled to carry forward the amount of leave standing at his credit of such date, notwithstanding anything contained in Section 6.
(2) Any other person who is appointed as the Election Commissioner may be granted leave in accordance with such rules as are for the time being applicable to a member of the Indian Administrative Service.
(3) The power to grant or refuse leave to the Election Commissioner and to revoke or curtail leave granted to him shall vest in the Administrator."
14. Rule 6 of the Rules, 1993 further provided:
"(1) A person who immediately before the date of assuming office as the Election Commission was in service of Govt., shall be deemed to have retired from service on the date on which he enters upon office as the Election Commissioner but his subsequent service as the Election Commissioner shall be reckoned as continuing approved service counting for person in service to which he belonged.10
(2) Where an Election Commissioner demits office (whether in any manner specified in Section(4) or by resignation, he shall, on such demission, be entitled to-
(a) a pension which is equal to the pension payable to Secretary to Govt.
(b) such pension including commutation of pension, family pension and gratuity as are admissible to a Secretary to the Govt.
(3) Except where the Election Commissioner demits office by resignation, he shall be deemed, for the purpose of these rules, to have demitted his office if, and only if-
(a) he has completed the term of office specified in Section 4, or
(b) he has attained the age of sixty-five years, or
(c) he is removed from office in a like manner and on the like grounds as a judge of High Court."
15. It is an admitted fact that the applicant, having been appointed vide appointment order dated 13.12.2001, was bound by the terms of his appointment. The appointment letter of the applicant reads as under:-
"Whereas Shri S. Malaichamy (IAS, AGMU:1971) was directed to hold the charge of the post of Election Commissioner in the Election Commission of the National Capital Territory of Delhi in addition to his duties as Managing Director of the Delhi Khadi and Village Industries Board;
And Whereas now in view of the impending municipal elections in Delhi, the posting of a full time Election Commissioner is essential Now, therefore, the Lt. Governor, of the National Capital Territory of Delhi has decided to relieve Shri S. Malaichamy of the additional charge of Election Commissioner in supersession of the Govt.'s notification No.F8/1/2001/S.I/102-201 dated 12th Jan, 2001, and, in exercise of powers conferred by sub-section (1) of section 7 of the Delhi Municipal Corporation Act, 1957 (66 of 1957), to appoint Shri M.P. Tyagi, IAS (Retired) as Election Commissioner, in the Election Commission of the National Territory of Delhi, with effect from the date of issue of this notification, for the superintendence, direction and 11 control of the preparation of the electoral rolls for, and the conduct of, all elections to the Municipal Corporation of Delhi.
Shri Tyagi will hold office for a term of three years from the date on which he assumes charge of his office, as provided under rule 3 of the Election Commissioner of NCT of Delhi (Conditions of Service and Tenure of Office) Rules, 1993, as amended from time to time, made under the said Act."
16. The first part of the appointment letter is devoted to the case of one S. Malaichamy (IAS, AGMU: 1971) who had been holding the charge of the post of Election Commissioner as additional charge vide Government Notification dated 2.01.2001. It merely states that the applicant would hold the office for a term of three years from the date of his assumption of charge as provided under Rule 4 of the Rules, 1993. At that particular point of time admittedly Rule2, 2001 had not come into existence and, therefore, the terms of the office of the applicant were governed by the existing provisions of Rules, 1993. Rule 4 merely provides the term of office of the Election Commissioner which, as stated earlier, would be completion of three years of service or attending the age of 65 years, whichever is earlier, with freedom of resigning the office. Rule 3, as we have already noted, provides a salary of Rs.7300-7600/-, which was the scale of the Secretary to the Government with the provision that in the case of a retired government employee, the salary of the incumbent would be reduced by the amount of pension drawn or of the 12 commuted value of pension, as the case may be. Rule 6(2) reiterates that the incumbent is to be paid the same pension which is payable to Secretary to the Government including commutation of pension, family pension and gratuity as admissible to Secretary to the Government.
17. The provisions of Rule 6(1) are altogether something different from pension as it provided that a person immediately before his assumption of office as Election Commissioner shall be deemed to have retired from service on the date on which he entered the office as Election Commissioner that his service as Election Commissioner to be reckoned as continuing approved service for pension in service to which he belongs. This provision of Rule 6(1) obviously did not apply to the applicant as he was not in service before assumption of the charge of the office of Election Commissioner. It needs scarcely to be reiterated that the State Election Commissioner of Delhi is a constitutional appointment in terms of Article 243K of the Constitution and is governed by the Rules of 1993 and amended Rules, 2001. We have also noted that the provisions of Rule 2 shall not apply to the applicant. Rather, as we have noted, the applicant is excluded from the purview of the CCS (Pension) Rules on account of operation of Rule 2(h) being a constitutional post having its 13 own Rules. We also take note of the argument that Rule 6(2) is a corner stone for the demand of the applicant. This Rule has no stipulation that a State Election Commissioner shall not be eligible for pension under these Rules if he was already drawing pension under some other Rules. Here, we are swayed by the fact that under the provision of Rule 3(1), the pay of the applicant is to be reduced by the pension that the person is drawing from the earlier service. In the instant case, the earlier service happens to be the Indian Administrative Service and the pay is equated to Secretary to the Government. Despite the fact that no limitations have been provided under Rule 6(2) relating to pension drawn in respect to the services rendered as Election Commissioner in the scale of pay of Rs.7300- 7600/-, the matter cannot be viewed in an isolated manner related to Rule 6(2) alone. It cannot be delinked from the provisions of Rule 3(1) of the Rules ibid. We also called for the departmental file and perused the same. We find that this matter was examined in the Finance Department and the Note dated 11.11.2004 provides at pages 26-27 of the paper book, which reads as under:-
"Pre-notes from page 3/N ante may kindly be perused.
Extracts of the relevant provisions of All India Service Retirement Benefit Rules, 1958 and CCS (Pension) Rules, 1972 have been added in the file at pages 19 and 20/C respectively.14
Rule 18(1)(b) of All India Service Retirement Benefit Rules, 1958 states that in case a Member of the Service retires from service in accordance with the provision of these rules, after completing qualifying service of 33 years or more, pension shall be admissible to him @ 50% of the average emoluments reckonable for pension.
Provided that pension calculated as above shall be subject to a ceiling of Rs.4500/- p.m. It appears from the above that even if a person serves for more than 33 years, a maximum period of 33 years can be taken for the purpose of calculating pension.
Rule 49(2)(a) of CCS Pension Rules (page 20/C) is exactly similar to Rule 18 (1) (b) of All India Service Retirement Benefit Rules.
Sh. Tyagi has stated in his letter (3/C to 4/C) that he is already in respect of pension for the service rendered as an IAS officer of the cadre and that Central Civil Service Pension Rules are not applicable to the present constitutional post in view of Rule 2(h) (copy placed at page 21/C).
Rule 2(h) states that the Central Civil Service pension Rules shall not apply to a person whose terms and conditions of service are regulated by or under the provisions of the Constitution or any other law for the time being in force.
It may be mentioned here that terms and conditions of the service of the State Election Commissioner are regulated by the Election Commissioner of NCT of Delhi (Conditions of Service and Tenure of Office) Rules, 1993. Rule 6(2) of the above said rules deal with the pension of the Election Commissioner and is reproduced on page 4/N ante.
In view of the above, there is force in the argument that Central Civil Service Pension Rules are not applicable to the constitutional post of the State Election Commissioner and that Rule 6(2) should be read independently of Rule 6(1), whereby, Sh. Tyagi would become eligible to get pension which is equal to the pension payable to the Secretary to Government of Delhi for a further period of 3 years that he has served as the Election Commissioner.
We may, therefore, advice the concerned administrative department to calculate the pension payable to the Election Commissioner as Secretary to the Government in the Super Time scale in view of the provisions of Rule 6(2) of the Election Commissioner of NCT of Delhi (Condition of Service and Tenure of Office) Rules, 1993 and Rule 2(h) of the Central Civil Service 15 Pension Rules which could mutatis mutandis be taken to apply to the All India Service Retirement Benefit Rules."
18. Despite this advice, our opinion is that if Rule 6(2) were to be seen independently of Rule 6(1) which we agree did not act as a limiting factor, the applicant is entitled to payment of pension as admissible in the scale of Rs.7300- 7600/- for the services rendered. However, the argument of the respondents is that the applicant being in receipt of full pension having rendered 33 years of service was not entitled to second pension under Rule 6(2). When we link Rule 3(1) including its proviso with Rule 6(2), we find that this will come to help the applicant only where he was not getting full pension after having rendered 33 years of service but where the applicant had rendered 33 years of service and is in full pension, the pension would be determined under Rule 6(2). However the applicant would stand benefitted where the pension was not the full pension or where the pension determined is greater than the full pension which he is receiving which would then come to be subsumed in the pension so determined under Rule 6(2).
19. Rule 9 of Rules, 1993 provided that the conditions of service of Election Commissioner is not to be varied to his disadvantage after his appointment.
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20. The Election Commissioner of NCT of Delhi (Conditions of Service and Tenure of Office) (Amendment) Rules, 2001 deleted the sub-rule (1) of Rule 5. As per this amendment, Revised Rule 5 would read as follows:-
(1) Any person who is appointed as the Election Commissioner may be granted leave in accordance with such rules as are for the time being applicable to a member of the Indian Administrative Service.
(2) The power to grant or refuse leave to the Election Commissioner and to revoke or curtail leave granted to him shall vest in the Administrator."
21. Likewise, sub-rule (1) of Rule 6 was omitted. The amended Rule 6 would read as under:-
(1) Where an Election Commissioner demits office (whether in any manner specified in Rule (4) or by resignation, he shall, on such demission, be entitled to-
(a) a pension which is equal to the pension payable to Secretary to Govt.
(b) such pension including commutation of pension, family pension and gratuity as are admissible to a Secretary to the Govt.
(3) Except where the Election Commissioner demits office by resignation, he shall be deemed, for the purpose of these rules, to have demitted his office if, and only if-
(a) he has completed the term of office specified in Rule 4, or
(b) he has attained the age of sixty-five years, or
(c) he is removed from office in a like manner and on the like grounds as a judge of High Court."
22. Following this, Rule 10 has been added which reads as under:-
17
"To a service officer appointed as Election Commission, the relevant service rules concerning tenure, transfer, retirement, resignation, pay, provident fund and pension shall apply and not the provisions of Chapter II".
23. Un-amended Rules 5(1) and 6(1) provided for continuity of office in respect of leave and reckoning of the subsequent service as Election Commissioner as continuing approved service which was deleted by amended Rules of 2001. As consequence of these amendments, the way is paved for admissibility of grant of pension to the Election Commissioner within the term as envisaged in the Rules 1993. These Rules have further been notified under the provisions of Section 7(2) of Delhi Municipal Corporation Act, 1957 and are to be read in consonance with Article 243K of the Constitution. Rule 9 of the Rules 1993 provides protection to the incumbent of the post of State Election Commissioner inasmuch as his conditions of service shall not be varied to his disadvantage after retirement. A similar protection has been envisaged under Article 243(k)(2) of the Constitution to the State Election Commissioner.
24. Coming to the issue of objection of double pension as has been pleaded by the respondents, Rule 2 of CCS(Pension) Rules, 1972 deals with such category of 18 persons, who are entitled to pension under these Rules as provided hereunder:-
"2. Application Save as otherwise provided in these rules, {these rules shall apply to Government servants appointed on or before the 31st day of December, 2003} including civilian Government servants in the Defence Services, appointed substantively to civil services and posts in connection with the affairs of the Union which are borne on pensionable establishments, but shall not apply to-
(a) railway servants;
(b) persons in casual and daily rated employment;
(c) persons paid from contingencies;
(d) persons entitled to the benefit of a Contributory Provident Fund;
(e) members of the All India Servcies;
(f) persons locally recruited for service in diplomatic, consular or other Indian establishments in foreign countries;
(g) persons employed on contract except when the contract provides otherwise; and
(h) persons whose terms and conditions of service are regulated by or under the provisions of the Constitution or any other law for the time being in force."
25. In this regard, the OA also appears to be constrained by the provisions of Rule 4 of All India Services (Death- cum-Retirement Benefits) Rules, 2013 as amended vide Gazette Notification dated 12.07.2013, which provides as under:-
"For rule 4 of the said rules, the following shall be substituted, namely:-
(1) A member of the service cannot earn two pensions in the same post at the same time or by the same continuous service.19
(2) Except as provided in sub-rule (4) of rule 8, a member of service who, having retired on a superannuation pension or retiring pension, is subsequently re-employed shall not be entitled to a separate pension or gratuity for the period of his re-
employment."
Sub-rule(4) of rule 8 entitles members of the Service who rendered war/military service, before appointment to an All India Service, to count that service to the extent to which such service is counted as qualifying for person under the rules applicable to members of Central Services Class-I.
26. In the instant case, the applicant has retired as a member of the Indian Administrative Service, after rendering three years of service, on 30th November, 2000 and was appointed as Election Commissioner w.e.f. 13th December, 2001 for a period of three years. This gives rise to the question that whether the provisions of All India Services (Death-cum-Retirement Benefits) Rules, 1958, or the provisions of Election Commissioner of NCT of Delhi (Conditions of Service and Tenure of Office) Rules, would be applicable to the Election Commissioner.
27. However, the post of State Election Commissioner, which is an independent post and for which separate provisions have been made, is not included within the application of Rule 2 of CCS(Pension) Rules, 1972, rather the same is covered by the provisions of Rule 2(h) which 20 provides that these rules shall not apply to persons, whose terms and conditions of service, are regulated by or under the provisions of the Constitution or any other law for the time being in force. We are, however, guided by the fact that in Annexure P-15, the applicant has provided the details about eligibility for pension to other State Election Commissioners. The Chief Election Commissioner and other Election Commissioners of India are paid pension equal to the Judge of the Supreme Court as is the case of Chief Auditor General. In Arunachal Pradesh, the State Election Commissioner is paid no pension; whereas in Andaman and Nicobar Islands, Daman and Diu etc., he is provided benefit of Contributory Provident Fund. In Andhra Pradesh, he is paid pension equal to the Judge of the High Court. In Bihar, he is paid Rs. 450/- per month for every year of service completed as State Election Commissioner and so is the case in Gujarat and Jharkhand. In Chattisgarh, the State Election Commissioner is paid Rs. 7800/- per annum for each completed year of service subject to maximum pension equal to Judge of High Court. In Madhya Pradesh, the State Election Commissioner is paid Rs.5200/- per annum for each completed year of serve subject to maximum amount of pension specified for Judge of a High Court, while in Kerala, it is Rs. 100/- per month in respect of 21 each completed year of service as State Election Commissioner in addition to a pension to which he is entitled under the ordinary rules of his service. Therefore, we are guided by the precedents also available.
28. The applicant has relied upon two decisions, namely, Gurmesh Prakash Bishnoi versus State of Haryana & Others [1998 (5) SCC 260] and M. Rama Krishna s/o late M.Seshagiri Rao & Anr. versus The Government of Andhra Pradesh rep. by its Secretary, Law (LA and JSC-F) Department and Others [MANU/AP/0708/2008].
29. In the case of Gurmesh Prakash Bishnoi versus State of Haryana & Others (supra), the appellant was appointed as member of Haryana Public Service Commission w.e.f. 04.03.1980 where he continued as Member till 28.08.1984 and thereafter served as Chairman for six years up to 27.08.1990. The appellant had been granted pension of Rs. 1800/- per month for his services as Chairman, Haryana Public Service Commission. The issue in dispute was whether he was entitled to pension for his service as Member, Haryana Public Service Commission for a period of 4 years, 5 months and 24 days. The Hon'ble Supreme Court held that the appellant in this case was entitled to pension as a Member for the services he rendered as a Member prior to his appointment as 22 Chairman subject to maximum as also pension as Chairman of the Haryana Public Service Commission calculated on the basis of the period during which he held office of the Chairman, subject to a maximum as laid down in Regulation 9A.
30. In M.Rama Krishna s/o late M. Seshagiri Rao & Anr. versus The Government of Andhra Pradesh rep. by its Secretary, Law (LA and JSC-F) Department and Others (supra), the issue involved was similar in nature that District Judge, who is appointed as Upa-Lokayukta, is entitled to claim dearness allowances or dearness relief (DA/DR) on the pension payable to Upa-Lokayukta after remitting officer after completion of term of five years. Since this case relates to DA/DR, the same is not applicable to the facts and circumstances of the instant OA.
31. Now we come to the issue of amendment. In this regard, we would like to note that a need in the amendment arose on account of the challenge thrown by one S. Malaichamy, who was holding the post of Election Commissioner as additional charge vide order dated 12.01.2001, he was at the verge of retirement and, therefore, threw a challenge to his being divested of additional charge. On the basis of Section 7 of the Act of 23 1957 which prescribed three years tenure and the same statutory provisions stipulated against removal other than in the manner prescribed for removal of a Judge of the High Court. This challenge was dismissed by the Hon'ble High Court of Delhi vide its order dated 19.02.2002 in the following manner:-
"We have already noticed above that at no point of time there has been appointment of Shri S. Malaichamy as Election Commissioner, as contemplated by the statutory provisions. In the absence of that it is not permissible for us in exercise of writ jurisdiction to declare Shri S. Malaichamy to have been appointed as such. The nature of the order on file dated 8.1.2001 being the assignment of additional charge of Election Commissioner till further orders, the withdrawalthere has been appointment of Shri S. Malaichamy as Election Commissioner, as contemplated by the statutory provisions. In the absence of that it is not permissible for us in exercise of writ jurisdiction to declare Shri S. Malaichamy to have been appointed as such. The nature of the order on file dated 8.1.2001 being the assignment of additional charge of Election Commissioner till further orders, the withdrawal of such additional charge or its non-continuance pursuant to the substantive appointment of Shri Tyagi as Election Commissioner, cannot amount to "removal" of the kind as contemplated by Section 7 of the D.M.C. Act of the constitutional provisions or the Rules and as such it is not open to the petitioner to contend that the procedure for removal of a High Court Judge ought to have been adopted in his case.
There is another aspect also which to our mind is crucial, namely, the conduct. Shri S. Malaichamy did not agitate the aspect of assignment of the additional charge till further orders, as given to him by AnnexureP-1. He accepted the same and has now come forward by filing this petition only when the appointment of Shri Tyagi was made and also when his own service as an officer in the IAS has reached the verge of superannuation. This fact coupled with the fact that Shri S. Malaichamy continued to discharge his duties and draw remuneration as the Managing Director of Khadi and Village Industries Board additionally. This goes to show that he himself considered it to be an additional charge of Election Commissioner and not an appointment to the office of Election Commissioner. He is thus, by his conduct, 24 precluded from claiming a right to get his tenure converted into a full three years appointment on substantive basis as an Election Commissioner for National Capital Territory of Delhi with effect from 12.1.2001."
Hon'ble High Court has also made observations relating to the applicant that he is not a serving officer and as such he is not governed by Rule 6(1) of the Rules. We additionally take note of the fact that Rule 9 provides that conditions of services cannot be varied to the disadvantage of the incumbent once having been appointed under the Rules, 1993. The issue is, therefore, fully governed as we have noted earlier by the situation as it prevailed under the Rules, 1993. If the applicant was entitled to the payment of additional pension under Rules, 1993, he shall continue to draw the same and this right cannot be abridged by the amended Rules, 2001.
32. In conclusion, we hold that were we to take a view that Rule 6(2) of Rules, 1993 would continue to prevail, the pension for the applicant is very much on the cards. This is supported by judgment of this Tribunal in S.D. Pradhan V/s. National Security Council Secretariat (OA No. 2250/2012 decided on 21.10.2013] as confirmed by the Hon'ble High Court in WP(C) No.5066/2014 and CM Nos.10107-08/2014 decided on 20.08.2014. As per this judgment, a person who is given a fresh appointment is 25 entitled to draw a second pension. For the sake of clarity, we quote from the operative portion of the judgment of the Hon'ble High Court, which reads as under:-
"24. Having heard learned counsel for the parties, we are of the view that there is no merit in this petition and there is no error pointed out by the petitioners in the impugned order of the Tribunal which calls for interference by this Court. Pertinently, the past service of the respondent with the University was not permitted to be counted by the petitioner. The respondent was, however, given benefit of Rule 30 of the Pension Rules and the period to be added to the service of the respondent with the petitioner was computed as 4 years and 2 months, i.e. 42 six monthly periods of service. It is not the petitioners' case that Rule 30 was not applicable in the case of the respondent. Having itself computed the length of the respondent's total service as 20 years and 10 months, without even adding the service of the respondent with the University, it is not open to the petitioner to now contend that the service of the respondent with the petitioner was less than 20 years.
25. We also find that there is no bar to the respondent drawing two pensions in the facts of the present case. The fact that the respondent fortuitously came to draw pension from the University on account of W.P.(C.) No.5066/2014 Page 15 of 15 retrospective application of the pension scheme much after the date of the respondent's voluntary retirement from the said University, in place of the CPF benefit to which he was entitled, cannot deprive him of the pension to which he is entitled under the Pension Rules, since the length of his service rendered with the petitioner has been computed to be in excess of 20 years.
26. The Tribunal has rightly concluded that the respondent's was not a case of re-employment. Rather it was a case of fresh employment since the petitioners declined to count the respondent's service with the University for the purpose of pension, and the respondent took voluntary retirement from University, whereupon he was absorbed by the petitioners.
27. For the above reasons, we are of the opinion that there is no merit in the writ petition. The same is, accordingly, dismissed. The petitioners are directed to ensure that the differential of pension and other dues as well as the interest directed by the Tribunal are disbursed within four weeks from today."26
However, we also take note of the fact that Rule 6(2) was not on a standalone basis but has to be read conjointly with Rule 3(1) including its provisions. This provision puts fetters on the independent nature of Rule 6(2) in the sense that if continuity of service had been applied under Rule 3(1), Rule 6(2) cannot be de hors that. In view of the pattern of continuity that appears in this case, it is evident that this is not a case of fresh employment but rather one of re-employment. We have already highlighted the true circumstances under which the applicant could have been benefitted. However, considering the fact that he was drawing a full pension having rendered 33 years of service, the applicant cannot be benefitted. However, we also take note of the fact that the applicant has given examples prevailing in other States relating to pensionary benefits given to the Election Commissioners in different forms as have been already provided in the body of this order. We find that the sole provision that relates to such pensionary benefits is as contained in Rule 6(2)/6(1) of the Rules. Hence, considering our discussion earlier, a liberal interpretation of this rule entails that in the case the pension is calculated in the scale of Rs.7300-7600/- be higher than the pension that he had been receiving at the time of his retirement in the earlier service, he shall be 27 entitled to the same. Hence, the instant Original Application is disposed of in the following terms:-
(i) The communications dated 9th June, 2005, 9th August, Advice of the Finance Deptt.(A/Cs) and communication dated 20th February, 2006 are quashed.
(ii) The respondents are directed to treat the period from 13.12.2001 to 12.12.2004 during which the applicant functioned as Election Commissioner as continuous service and fix his pension at the end of it in the scale of Rs.7300-7600/- and to grant him the amount of difference between the two.
(iii) The order shall be implemented within a period of three months from the date of receipt of certified copy of this order; and
(iv) There shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /lg/