Central Administrative Tribunal - Mumbai
7 vs 4 on 12 December, 2013
1 OA No.258/2012 CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI ORIGINAL APPLICATION NO:- 258/2012 Dated this Friday, the 22nd day of November, 2013. CORAM:-HON'BLE SMT. CHAMELI MAJUMDAR, MEMBER (J) HON'BLE DR. MRUTYUNJAY SARANGI, MEMBER (A) 1. Shri Hemant Ramchandra Khadikar, Sc 'F' (Retd), Age 60 years, occ- Retired Scientist R/at- 4 Abhivandan Apartments, 88 Mayur Colony, Kothrud, Pune - 411 038 2. Shri Shivaram Laxman Jatkar, Sc 'D' (Retd), Age 75 years, occ- Retired Scientist R/at- 2 Rachana Rosette, 76/18 Shantisheela, Co-op. Hsg Society, Ernadavane, Pune 411 004 3. Shri Maruti Ananda Sinare, Sc 'D' (Retd), Age 70 years, occ Retired Scientist R/at- 968/7 Senapati Bapat C.H.S. Senapati Bapat Road, Pune 411 016 4. Shri Vijaykumar Bhalchandra Khire, Sc 'C' (Retd), Age 73 years, occ Retired Scientist R/at- Saritanagari Phase 2, Sinhgad Road, Pune 411 030 2 OA No.258/2012 5. Shri Arvind Waman Paradkar, Sc 'D' (Retd), Age 73 years, occ Retired Scientist R/at- Shreyas Bungalow, Nandadeep Society, Pune 411 051 6. Shri T P Viswanatha Kurup, Sc 'D' (Retd), Age 69 years, occ Retired Scientist R/at- C-2/18 Hermes Heritage, Shastrinagar, Yerwada Pune 411 006 7. Shri Murlidhar Kauromal Sundrani, Sc 'D' (Retd), Age 74 years, occ Retired Scientist R/at- 412 A Sindh Housing Society, Aundh, Pune 411 007. 8. Shri Subir Mukerjee, Sc 'F' (Retd), Age 69 years, occ Retired Scientist R/at- 14/1 Lakeview Park No.1 C.H.S Sutarwadi, Pashan, Pune 411 021 9. Shri Vijay Baburao Ware, Sc 'F' (Retd), Age 64 years, occ Retired Scientist R/at- 144 Narayan Peth, Pune 411 030. 10. Shri Shashikant Parashuram Shaha, Sc 'E' (Retd), Age 64 years, occ Retired Scientist R/at- 'Shantiban' Bldg. No. A-6, Flat No.13, Chinchwad, Pune 411 033 3 OA No.258/2012 11. Shri Nand Kishore Chopra, Sc 'F' (Retd), Age 65 years, occ Retired Scientist R/at- Flat No.Z1/102 Lunkad Gold Coast, Viman Nagar, Nagar Road, Pune 411 014 12. Shri N M Hariprasad, Sc 'F' (Retd), Age 69 years, occ Retired Scientist R/at- A-203 Lunkad Gardens, Viman Nagar, Pune 411 014 13. Shri Baburao Ramchandra Kharat, Sc 'D' (Retd), Age 66 years, occ Retired Scientist R/at- A/6 Shree Chintmani Complex, 135 Mayur Colony, Kothrud, Pune 411 038 14. Shri Rasheed Ahmed Khan, Sc 'D' (Retd), Age 67 years, occ Retired Scientist R/at- 201/B1, Radiant Paradise, Wanwadi, Pune 411 040 15. Shri Ravindra Kumar Chauhan, Sc 'E' (Retd), Age 62 years, occ Retired Scientist R/at- 25/9 Sampada Shree C.H.S, Ranakapur Darshan, Alandi Road, Yerawada, Pune 411 006 16. Shri Rameshchandra Manilal Dhodia, Sc 'E' (Retd), Age 61 years, occ Retired Scientist R/at- 204, D-1 Building, Lunkad Queens Land Housing Society, Viman Nagar, Pune -411 014 4 OA No.258/2012 17. Shri Nakuleswar Bhattacharya, Sc 'D' (Retd), Age 64 years, occ Retired Scientist R/at- Row House No.30, Eden Garden, S.No.167/168, Wakad, Pune 411 027. 18. Shri Vilas Sudhakar Shinde, Sc 'D' (Retd), Age 65 years, occ Retired Scientist R/at- Flat No.204, Aster (Wing I), Silver Valley C.H.S, Wanwadi, Pune 411 040 19. Shri Asamukul Basu, Sc 'E' (Retd), Age 64 years, occ Retired Scientist R/at- A/407, Gera Foliage Viman Nagar, S. No.228/5, Pune 411 014 20. Shri Ajitkumar Bandyopadhyay, Sc 'D' (Retd), Age 70 years, occ Retired Scientist R/at- 303/B-5, Lunkad Colonnade- 1, Viman Nagar, Pune 411 014 21. Shri Madhusudan Ramchandra Chaskar, Sc 'D' (Retd), Age 74 years, occ Retired Scientist R/at- 18/1 Erandavane, Bharat Kunj Colony No.1, Pune 411 038 22. Shri Vasant Yashwant Oka, Sc 'D' (Retd), Age 74 years, occ Retired Scientist R/at- Plot No.131, Lane No.9, Mahatma C.H.S., Behind Gandhi Bhawan, Kothrud, Pune 411 038 5 OA No.258/2012 23. Dr. Suresh Ganesh Kulkarni, Sc 'F' (Retd), Age 62 years, occ Retired Scientist R/at- Snehal Apartments, Flat No.2, 80 Sahawas Society, Karvenagar, Pune 411 052. 24. Shri Ramesh Ramkrishna Gosavi, Sc 'D' (Retd), Age 71 years, occ Retired Scientist R/at- C-1, Jayanti Apartments, Near Ratna Hospital, Senapati Bapat Road, Pune 411 016. 25. Shri Sopan Dhondiba Bankhele, Sc 'D' (Retd), Age - 70 years, occ Retired Scientist R/at- B-1, Paras Co.op Hsg. Soc, Senapati Bapat Road, Pune 411 016 26. Shri Kamal Kumar De, Sc 'D' (Retd), Age 71 years, occ Retired Scientist R/at- C-3, Vivekanand Hsg Soc, Pashan, Pune 411 021 27. Shri Vidyapati Vasodeo Makhija, Sc 'D' (Retd), Age 65 years, occ Retired Scientist R/at- 24/345, Lokmanya Nagar, Pune 411 030 28. Shri Debabrata Sarkar, Sc 'E' (Retd), Age 65 years, occ Retired Scientist R/at-B-6, Daffodil Park, Ramnagar Colony, Pashan- NDA Road, Pune 411 021 6 OA No.258/2012 29. Shri Ramanachary Vijayappan, Sc 'D' (Retd), Age 66 years, occ Retired Scientist R/at- Flat No.B- 202, B-Wing, Gold Leaf Apartments, Near Park Street, Rahatani, Pune 411 017 30. Shri Sharad Gajanan Chivate, Sc 'D' (Retd), Age 70 years, occ Retired Scientist R/at- Flat No.23, Swaroop Nagari, Karve Road, Kothrud, Pune 411 038 31. Shri Chandrashekhar Madhav Kulkarni, Sc 'F' (Retd), Age 65 years, occ Retired Scientist R/at- C-4/5, Shri Guru Ramakrishna Hsg Soc, Pashan, Pune 411 021 32. Shri Shekhar Sharad Kulkarni, Sc 'F' (Retd), Age 61 years, occ Retired Scientist R/at- 24, Raksha Lekha Co-op Hsg Soc, Dhankawadi,Pune 411 043 33. Shri Chingleput Raghavan Mani, Sc 'D' (Retd), Age 73 years, occ Retired Scientist R/at- B-2, Paras Co-op Hsg Soc, Senapati Bapat Road, Pune 411 016 34. Shri Vishwanath Shankar Dhavalikar, Sc 'C' (Retd), Age 74 years, occ Retired Scientist R/at- C-10, Shri Suvarna Apartments, Lokmanya Colony, Near Utsav Sabhagrah, Kothrud, Pune 411 038 7 OA No.258/2012 35. Shri Gopal Chandra Adhikari, Sc 'F' (Retd), Age 64 years, occ Retired Scientist R/at- B-101, Mont Vert Altesse, Sus Road, PO Pashan, Pune 411 021 36. Shri Prakash Gajanan Vaidya, Sc 'D' (Retd), Age 68 years, occ Retired Scientist R/at- 48, Bakul Shubhnagari Hsg Soc, Kothrud, Pune 411 038 37. Shri Sharad Gajanan Joshi, Sc 'D' (Retd), Age 68 years, occ Retired Scientist R/at- Gajali Sitabag Colony, Plot No.15, Sinhgad Road, Pune 411 030 38. Shri Sudhir Vasant Naik, Sc 'D' (Retd), Age - 71 years, occ Retired Scientist R/at- 201, Pushpakant Apartments, Near Moreshwar Hall, Bhau Joshi Path, Kothrud, Pune 411 038 39. Shri Om Prakash Ramchandran Kavra, Sc 'D' (Retd), Age 69 years, occ Retired Scientist R/at- 19-C, Ganeshkripa Hsg Soc, Pavanhans Nagar, Lane No.12, Kothrud, Pune 411 038 40. Shri Satya Narayan Nagde, Sc 'D' (Retd), Age 70 years, occ Retired Scientist R/at- D-3, Vivekanand Hsg Soc, Pashan, Pune 411 021 8 OA No.258/2012 41. Shri Ramesh Kumar Pathak, Sc 'C' (Retd), Age - 66 years, occ Retired Scientist R/at- E-3, Vivekanand Hsg Soc, Pashan, Pune 411 021 42. Shri Deodatta Sadashiv Kulkarni, Sc 'D' (Retd), Age 68 years, occ Retired Scientist R/at- 'Trimurty', 38/1/A/9 Jayshakti Society, Ganeshnagar, Pune 411 052 43. Shri Vayanahyi Komath Ramkrishnan, Sc 'D' (Retd), Age 68 years, occ Retired Scientist R/at- 101, Rajuta Residency, 266/2/3 Baner, Nachiket Park, Baner Road, Pune 411 045 44. Shri Narendra Nath Bhowmik, Sc 'D' (Retd), Age 67 years, occ Retired Scientist R/at- F-2/6, Vivekanand Co-op Hsg Soc, Pashan, Pune 411 021 45. Shri Ramchandra Janardan Kenkre, Sc 'D' (Retd), Age 66 years, occ Retired Scientist R/at- Indranagari, Dahanukar Colony, Kothrud, Pune 411 038 46. Shri Pulimootil Kurien John, Sc 'D' (Retd), Age 68 years, occ Retired Scientist R/at- Flat No.204, Prerna, Aundh Road, Range Hills PO, Pune 411 020 9 OA No.258/2012 47. Dr. Bharatbhushan Parshuram Joshi, Sc 'F' (Retd), Age 48 years, occ Retired Scientist R/at- 14/B32, Mahesh Paradise, Aundh, Pune 411 007 48. Shri Manoranjan Umrao Murarkar, Sc 'D' (Retd), Age 67 years, occ Retired Scientist, R/at- B-5/11, Moraya Residency, Phase III, Pashan Sus Road, Pune 411 021 49. Shri Kamalakar Anant Nerlekar, Sc 'D' (Retd), Age 74 years, occ Retired Scientist R/at- Pankaj Apartments, Ideal Colony, Flat No.5, Kothrud, Pune 411 029 50. Shri Ramesh Vasudev Nagarkar, Sc 'D' (Retd), Age 66 years, occ Retired Scientist R/at- 267 Shanwar Peth, Neelesh Aparts., Block No.202, Pune 411 030 51. Shri Prabhakar Krishnaji Umrani, Sc 'D' (Retd), Age - 69 years, occ Retired Scientist, R/at- 'Shubhada' Kunkulol C.H.S., Azadwadi, Kothrud, Pune 411 038 52. Shri Mohan Kishanchand Choudhary, Sc 'D' (Retd), Age - 72 years, occ Retired Scientist R/at- 11, Oriental Gold, S.No.244/2, D.P.Road, Aundh. Pune 411 007 10 OA No.258/2012 53. Shri Suresh Baburao Talegaonkar, Sc 'E' (Retd), Age 71 years, occ Retired Scientist R/at- 21 A, Vrindavan No.2 Society, Panchavati, Pashan, Pune 411 008 54. Shri Madhukar Ramrao Kulkarni, Sc 'D' (Retd), Age 73 years, occ Retired Scientist R/at- Flat No.108, Radha C.H.S., Shrikrishna nagar, Bavdhan, Pune 411 021 55. Shri K K Radhakrishnan, Sc 'F' (Retd), Age 62 years, occ Retired Scientist R/at- AB-3, B/602 Siddhivinayak C.H.S. Pimple Saudagar, Pune 411 027 56. Dr Srirang Vishnu Puntambekar, Sc 'D' (Retd), Age - 67 years, occ Retired Scientist, R/at- Shilpa C.H.S. Flat No.C-107/108, Paud Road, Kothrud, Pune 411 038 57. Shri Anil Ganesh Pendse Sc 'E' (Retd), Age - 64 years, occ Retired Scientist, R/at 1398, Sadashiv Peth, Paranjape Aparts., Pune 411 030 58. Shri Suresh Sharad Markale, Sc 'D' (Retd), Age - 63 years, occ Retired Scientist, R/at 38/571 Lokmanyanagar, Maharashtra Housing Board, Pune 411 030 11 OA No.258/2012 59. Dr. Arun Ramchandra Kulkarni, Sc 'E' (Retd), Age - 69 years, occ Retired Scientist, R/at 3, Shilptula C.H.S., Behind Hotel Shivsagar, D.P. Road, Aundh, Pune 411 007 60. Shri Madhav Annaji Bhave, Sc 'E' (Retd), Age - 75 years, occ Retired Scientist, R/at Aalok, Plot No.36, Vidnyan Nagar Soc, Bavdhan, Pune 411 021 61. Shri Padmakar Anant Phawade, Sc 'E' (Retd), Age - 71 years, occ Retired Scientist, R/at- 'Anant', 22 Ashok Nagar, Ganeshkhind, Pune - 411 007 62. Shri Laxman Dattoba Chavan, Sc 'C' (Retd), Age 64 years, occ Retired Scientist, R/at- 6 Shilplekha Housing Society, Near Mangesh Society, Aundh, Pune 411 007 63. Shri Suryakant Pandurang Mane, Sc 'D' (Retd), Age - 66 years, occ Retired Scientist, R/at- 20/2 Sakal Nagar, Baner Road, Aundh, Pune 411 007 64. Dr. C.P. Achuthan, Sc 'D' (Retd), Age - 66 years, occ Retired Scientist, R/at- Plot No.32, Shivaji Park, Road No.3, Samarth Nagar, New Sangavi, Pune 411 027 12 OA No.258/2012 65. Shri Ramesh Rajaram Mahajan, Sc 'D' (Retd), Age - 72 years, occ Retired Scientist, R/at- Kunkulol Society, Azadwadi, Kothrud, Pune 411 038 66. Shri Jayant Vinayak Sabane, Sc 'D' (Retd), Age - 63 years, occ Retired Scientist, R/at- B-3, Sphurti C.H.S., 28 Bombay Pune Road, Wakadewadi, Pune 411 003 67. Shri Thankappan Soman, Sc 'F' (Retd), Age - 62 years, occ Retired Scientist, R/at- B/203 Dreams Rytham, Opp Talathi Office, Bavdhan, Pune 411 021 68. Shri Poliyur Srinivasan Vasudevan, Sc 'F' (Retd), Age - 70 years, occ Retired Scientist, R/at- Plot No.22, S.No.17/1, Vidnyan Nagar C.H.S., Bavdhan (Khurd), Pune 411 021 69. Shri Satish Nagesh Bailur, Sc 'D' (Retd), Age - 62 years, occ Retired Scientist, R/at- Flat No.H 703, Goel Garima, Keshav Nagar, Chinchwadgaon, Pune 411 033 70. Shri Vishwanatha Sadashiv Kale, Sc 'D' (Retd), Age - 67 years, occ Retired Scientist, R/at- 323 Navi Peth, Flat No.32, Sopan Nagari, Pune 411 030 13 OA No.258/2012 71. Shri Bhagwan Khanderao Bhate, Sc 'D' (Retd), Age - 73 years, occ Retired Scientist, R/at- Plot No.27, House No.348, Vidnyan Nagar Co.op Hsg soc, Bavadhan Khurd, Pune 411 021 72. Shri Pralhad Deochand Ingale, Sc 'D' (Retd), Age - 67 years, occ Retired Scientist, R/at- Shri Guru Ramkrishna Housing Society, Bldg. No.C4/4, Pashan, Pune 411 021 73. Shri Madhav Vishwanath Vaidya, Sc 'D' (Retd), R/at- 1359 Sadashiv Peth, Murlidhar Niwas C.H.S, Near Gadre Chambers, Pune 411030 74. Shri Shripad Ramakrishna Visal, Sc 'D' (Retd), Age - 73 years, occ Retired Scientist, R/at- Tejashree, Manmohan C.H.S, Plot No.2, Karvenagar, Pune 411 052 75. Shri Udaykumar Shivram Pandit, Sc 'E' (Retd), R/at- 'Chandrachaya', Rupnagari C.H.S., S.No.128/2, Plot No.5, Karve Road, Kothrud, Pune 411 038 76. Shri Mohan Trimbak Karmakar, Sc 'E' (Retd), R/at- 597, Narayan Peth, Shreyas C.H.S., Near Mandar Lodge, Pune 411 030 ... ... Applicants (By Advocate Shri A. S. Prathinidhi) VERSUS 14 OA No.258/2012 1. The Director General, Research and Development, Defence Research & Development Organization, Ministry of Defence, DRDO Bhavan, New Delhi 110 105 2. Union of India, Represented by its Secretary to Government, Department of Pension & Pensioners Welfare, Ministry of Personnel, Public Grievance & Pensions, Lok Nayak Bhavan, 3rd Floor, Khan Market, New Delhi 110 003 3. The Government of India, Represented by its Secretary, Department of Expenditure, Ministry of Finance, North Block, New Delhi 110 011 4. The Director (PP), Department of Pension & Pensioners Welfare, Ministry of Personnel, Public Grievance & Pensions, Lok Nayak Bhavan, 3rd Floor, Khan Market, New Delhi 110 003 -Respondents (By Advocate Smt. H. P. Shah) O R D E R (ORAL) Per : Smt. Chameli Majumdar, Member (J)
The applicants are retired Scientists, who were working in various laboratories of Defence Research and Development Organization, in short, 'DRDO', under the administrative control of respondent no. 1. The applicants have prayed for the following reliefs:
15 OA No.258/20128 (a) The Hon'ble Court be pleased to hold and declare that, the two increments promised vide Annexure A-1 to Scientists 'C'to 'F' and in present case to the Petitioners being part of pay, the same maykindly be counted towards Pension and Pensionary benefits, thereby ordering the Respondents to grant the Revision of Pay andPensions from the date of retirement of the Petitioners.
(b) That upon the revision, being granted tothe Petitioners, the Respondents may furtherbe ordered and directed, to grant the difference to the Petitioners therebycounting two additional increments from thedate of retirement, till the actual implementation thereof.
(c) Direct the respondents to release theamount of Revision together with the interest @ 12% p.a. with quarterly rests from the day on which the same has becomedue and payable.
(d) Any other order in the interest of Justice may kindly be passed in favour of the Petitioners.
2. The applicants have retired as Scientists 'C' to 'F' from DRDO. On 01.01.1996, the Central Government implemented the recommendations of 5th Central Pay Commission. The Government accepted the said recommendation of 5th Central Pay Commission and by order dated 03.12.1999, two additional increments were held to be payable for all the Scientists and Engineers working in the cadre of Scientists 'C' to 'F' in DRDO as well as to other Departments.
16 OA No.258/20123. The case of the applicants is that vide order dated 03.02.1999, the Government has, inter alia, sanctioned two additional increments to Scientists in the pay scales of Rs. 10,000-15,200/-, Rs. 12,000-16,500/-, Rs. 14,300-18,300/-, Rs. 16,40020,000/- after their normal pay fixation. The Scientists have drawn these additional increments during their service period but when they retired these two increments were not included for working out the pension and other retiral benefits.
4. The grievance of the applicants are that the respondents are not counting two additional increments towards pension and pensionary benefits of the applicants despite the judgment and order of the Hon'ble Kerela High Court in WP No.29358 of 2004, which was upheld and confirmed by the Hon'ble Supreme Court of India in SLP No. (S) 555-560 of 2008.
5. We have heard Shri A.S.Prathinidhi, learned counsel for the applicants. The learned counsel submits that the applicants' grievance is similar to the Scientists who were Petitioners of Writ Petition No. 29358 of 2004(S) and which was decided on 18.01.2007 by the High Court of Kerala. They are also entitled for refixation and revision of their pension after taking into account the said 17 OA No.258/2012 two increments in their pay. The applicants caused representations before the authorities to extend the benefit of refixation and revision of their pension taking into account the two increment, but the respondents have not taken any step so far.
6. The sum and substance of the contentions of the respondents in reply, inter alia, are as follows :
(a) Subsequent to the issue of Government of India letter dated 03.02.1999, clarifications were issued vide DRDO, Ministry of Defence letter dated 14th May, 1999, in consultation with Integrated Finance (R&D) regarding treatment of the two additional increments granted to Scientist 'C' to 'F'. The additional increments were to be treated separately and not to be merged with the basic pay fixed under normal rules. On recruitment/promotion, the pay would be fixed under normal rules taking into account the additional increments. After such normal pay fixation, two additional increments were be granted each time in the respective pay scale.
Since the additional increments were not to be merged with basic pay and would have to be treated separately and distinctly, there was no need to revise the pay already fixed on or after 1.1.1996.
(b) The respondents further contend that as 18 OA No.258/2012 mentioned in DRDO letter dated 14.05.1999, merging of these increments as part of pay under FR 9(21)
(a)(i) for the purpose of DA, HRA, Pension, etc. has never been agreed to by the Government as the same is contrary to the Government policy. As such, the additional increments granted to Scientists 'C' to 'F' as incentive continued to be treated separately and were not merged with basic pay for any purpose. Therefore, it is amply clear that the two increments granted to Scientists 'C' to 'F' vide letter dated 03.02.1999 do not form part of emoluments as defined in CCS (Pension) Rules, 1972. The respondents further contend that the applicant has not given any strong or cogent reasons for the delay to be condoned. Therefore, as per Section 21 of the Administrative Tribunals Act, the applicant has not approached the Tribunal within the time frame as required. The respondents, therefore, contend that the O.A. deserves to be dismissed with costs on the ground of limitation.
(c) The respondents submits that the judgment dated 18.01.2007 of the Hon'ble High Court of Kerala at Ernakulam in W.P. No. 29358, 29710 and 31525 is not applicable to the present case as the same pertains to Department of Space. However, the 19 OA No.258/2012 said judgment of the Hon'ble High Court is contrary to the provisions of Statutory Rules, namely Rule 33 of CCS (Pension) Rules. The additional increments which have been sanctioned to Scientist 'C' to 'F' as an incentive cannot be said to be the part of 'pay' as defined in Rule 9(21)(a)(i) of Fundamental Rules. Further, a proposal was taken up with the Government to treat these two increments as part of 'Pay' under FR 9(21)(a)(i) for the purpose of DA, HRA, Pension, etc. However, Government did not agree to the proposal. As such, the additional increments granted to Scientist 'C' to 'F', an incentive, vide Government of India letter dated 03.02.1999 continue to be treated separately and are not merged with basic pay and hence the same do not count for the purpose of DA, HRA, Pension, etc. The referred judgments pertain to Scientist 'G'. Scientists 'G' were given special pay in lieu of entitled higher pay scale whereas Scientists 'C' to 'F' have been granted two additional increments over and above their normal pay as incentive, which were not merged with basic pay.
7. The contention of the applicant is that with reference to pension, the position of the respondents is that of the trustee inasmuch as the 20 OA No.258/2012 amount of pension is a property vested in the respondents in trust. By not counting the two increment, the applicants are deprived of proper pension, which is a continuous wrong. Therefore, relief may be granted in the instant applicant.
8. Regarding delay in approaching the Tribunal, we may take note of the judgment of the Hon'ble Supreme Court in the case of UOI & Others Vs. Tarsem Singh [2008 (2) SCC (L&S) 765]. The Hon'ble Supreme Court held that if the issue relates to payment or re-
fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. The relevant portion of paragraph 5 of the said judgment is set out herein below :
...a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. 21 OA No.258/2012
9. We have gone through the judgment passed by the Hon'ble High Court at Kerala, which has been relied upon by the applicants in this O.A. The Hon'ble High Court at Kerala held that the Writ Petitioners belong Engineers Grade SD-SG. They have been getting additional increment for Scientists/Engineers covered under exhibit P-1 to that Writ Petition. Exhibit P-1 is the order issued by the Government of India with the sanction of the Hon'ble President in exercise of powers under Article 77 of the Constitution of India. It did not say that the additional increment so granted will not be considered as Pay. The Hon'ble High Court at Kerala in the said judgment at paragraph 5 held as follows :
It is an admitted position before us that dearness allowance, house rent allowance and even pension on retirement of the incumbents concerned shall have to be reckoned on the basis of pay drawn by them. Pay is defined in FR 9(21)(a) as under :
Pay means the amount drawn monthly by a Government Servant as
(i) the pay, other than special pay orpay granted in view of his personalqualifications, which has been sanctioned for a post held by him substantively or in an officiatingcapacity, or to which he is entitled byreason of his position in a cadre; and
(ii) overseas pay, special pay andpersonal pay; and
(iii) any other emoluments which may bespecially classed as Pay by the 22 OA No.258/2012 President.
If the additional increments granted as per Ex.P1 comes within the pay; necessarily all attributes and additions to the pay shall be granted even counting the said additional increments.
10. The High Court at Kerala further held that the Engineers working in Grade SD, SE, SF, SG, etc. may have the required minimum qualification or might have acquired higher qualification. The additional increments granted to them as per paragraph 2 of Ext. P1 are not for the qualification that they possess but to attract, retain, inspire and motivate the Scientists/Engineers to give their best contributions. Necessarily, the additional increments so granted will not come within the exempted payments like special pay or pay granted in lieu of his personal qualifications. The additional increments granted as per exhibit P1 fall within the definition of pay. Necessarily, all attributes that may be added to emoluments reckoning pay shall have to be paid to them, whether it be DA or HRA. Equally so is the pension to the retired employees because pension is also reckoned based on the pay drawn. Finally, the Hon'ble High Court in the operative paragraph held as follows :
23 OA No.258/2012Consequently, the orders of the Tribunal impugned in this batch of writ petitions are quashed making it clear that the additional increments sanctioned in terms of paragraph 2 of Ext. P1 shall be counted as pay to attract all further payments including pension, depending on pay of an incumbent and that the professional update allowance payable in terms of paragraph 3 of Ext. P1 shall be payable from 1998-1999, falling due on 01.04.1999 onwards.
11. The Learned Counsel for the applicants has also relied on two recent judgments passed by the Co-ordinate Bench of Central Administrative Tribunal at Hyderabad. The said O.A. was filed by the Scientists of Defence Research & Development Organisation. Therefore, the present applicants are similarly placed like those applicants of O.A. 173/2012 decided on 07.08.2013 by the Hyderabad Bench of this Tribunal. The Co-ordinate Bench of this Tribunal at Hyderabad, in paragraph 5, reiterated the view taken by the Hon'ble High Court at Kerala, which is as follows :
5. As could be seen in the order of the Hon'ble Kerala High Court, the Court has ruled that these increments will also be falling within the definition of pay and the order dated 14.5.1999, which curtails the payment of said allowance, is also wrong because Presidential Order cannot be varied without the specific sanction of the President and the Court allowed the additional increment to be counted as pay for the purpose of pension as well. Since the SLP against this was dismissed, this has attained finality in law.
In O.A. No. 1158/2012, this Tribunal has also relied on the judgments and similarly allowed the prayer of the applicants therein. The Hyderabad Bench of this Tribunal finally 24 OA No.258/2012 allowed the O.A. and directed the respondents to consider the two increments for computing the pension and retiral benefits and consequently to revise the same for the applicants with all consequential benefits. Paragraph 6 of the said order dated 07.08.2013 is set out herein below :
In view of the order of the Hon'ble Kerala High Court and the Hon'ble Supreme Court Order and the order of this Tribunal in O.A. No. 1158/2012 dated 23.4.2013, this OA is allowed and the respondents are directed to consider the two increments for computing the pension and retiral benefits and consequently to revise the same for the applicants with all consequential benefits. No costs.
12. The learned counsel for the applicants has also relied on an order passed by the Co-ordinate Bench of this Tribunal at Bangalore in O.A. 735 to 750/2012 decided on 02.07.2013. Paragraph 4 of the said judgment is set out herein below :
The learned counsel for the applicant submits that when a similar issue has already been decided Hon'ble High Court of Kerala in W.P. No. 29358 and connected cases of 2004 decided on 18.1.2007. The said judgment attained finality under the orders of the Hon'ble Supreme Court in SLP (Civ) No. 555-560/2008 dated 4.4.2011. The said SLPs are dismissed. The issue for the grant of additional increments to be extended to the applicant as pay for counting the same for the purpose of fixation and finalization of pension, gratuity, leave salary, etc., the applicants are also entitled for the benefit of the judgement of the Hon'ble High Court of Kerala in W.P. Nos. 29358/2004, 29710/2004 and 31525/2004 dated 18.01.2007. The learned counsel for the applicants pray for grant of similar benefit, has relied upon the judgment of OA No. 287/2011 dated 13.02.2012 in the case of N.H. Sathyaraja & Others Vs. Union of India and Another. The 25 OA No.258/2012 said O.A. was allowed the order of this Tribunal reads as under :
5. Therefore O.A. is allowed. Under Article 14 and for the need to have a parimateria effect, we direct the second respondent to take the case of all such other Scientists of Grade 'G' who may not have been granted this benefit and to take appropriate steps to remedy the lacunae and universally grant equal benefits and file compliance report within four months next.
13. In paragraph 6 of the said order, the Tribunal held that Tribunal cannot take fresh decision on the issue to treat the additional increment extended to the applicant as Pay by counting the same for the purpose of fixation and finalisation of pension, gratuity, leave salary, etc. The decision of the Hon'ble High Court at Kerala is binding on that Tribunal.
14. The Learned Counsel for the respondents made a strenuous effort to distinguish by submitting that the applicants herein are Scientists 'C' to 'F' grade. By the order dated 02.07.2013, the Bangalore Bench of the Tribunal extended the benefit to Grade 'G' Scientists. In our view, the said distinction is not at all sustainable. The ratio decidendi in all these judgments are that the two additional increments granted to the Engineers/Scientists are to be treated as part of pay and the same will be counted for the purpose of pension and other retiral benefits.
26 OA No.258/201215. In view of the judgment passed by the Hon'ble High Court at Kerala and confirmed by the Hon'ble Supreme Court, the respondents are directed to consider two additional increments given to the applicants for computing the pension and other retiral benefits. The respondents are further directed to revise the pension and the retiral benefits of the applicants with all consequential benefits within six months from the date of receipt of the order.
16. The O.A. stands disposed of in terms of above directions. No order as to costs.
(Dr. Mrutyunjay Sarangi) (Smt. Chameli Majumdar) Member (A) Member (J).
km/os*