Allahabad High Court
Shakuntala Singh vs State Of U.P. And 5 Ors. on 23 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 1792, 2020 (1) ALJ 439 (2019) 11 ADJ 495 (ALL), (2019) 11 ADJ 495 (ALL)
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 2 Case :- WRIT - A No. - 54211 of 2016 Petitioner :- Shakuntala Singh Respondent :- State Of U.P. And 5 Ors. Counsel for Petitioner :- Satyendra Singh,Anil Kumar Bajpai Counsel for Respondent :- C.S.C.,Abhinav Ojha,Rajmani Yadav Hon'ble Suneet Kumar,J.
1. Heard Sri Samir Sharma, learned Senior Counsel assisted by Shri Satyendra Singh, learned counsels for the petitioner, Shri Sri Prakash Singh, learned counsel appearing for the fifth respondent and Shri Abhinav Ojha, learned counsel appearing for the Allahabad Development Authority and the learned Senior Counsel for the state respondents.
2. The petitioner, primarily seeks a direction in the nature of mandamus, commanding the respondents to compute her pension/family pension admissible her as per the Government Orders applicable to the Government Servants, issued from time to time.
3. The facts that emerge from the pleadings and averments of the learned counsel for the parties, briefly stated, is that the husband of the petitioner, Shri Surendra Singh, a member of the Development Authorities Centralized Services1 of the Development Authority, retired on attaining the age of superannuation on 30 September 2001, from the post of Chief Engineer at Allahabad Development Authority2 (presently, ''Prayagraj Development Authority'). The employee rendered 24 years 5 months and 5 days qualifying service. The last basic salary drawn by the employee was at Rs. 16,300/- in the pay-scale 14300-400-18300.
4. Pursuant to Government Orders dated 17 March 1983 and 29 September 1983, the employees of the Centralized Services retiring from Development Authorities were paid pension at par with Government Servants until 4 April 1999. The State Government vide Government Order dated 5 April 1999, withdrew the pension of the employees of the Development Authorities. Aggrieved, the association of pensioners challenged the Government Order in Praveen Kumar Agrawal vs. State of U.P.3, decided on 20 November 2010.
5. The Court quashed the Government Order dated 5 April 1999. The operative portion of the order reads thus:
"A writ in the nature of certiorari is issued quashing the impugned order dated 5.4.1999 and 9.11.2004 with consequential benefits. A writ in the nature of mandamus is issued commanding the opposite parties to ensure the payment of regular pension to the petitioners and other similarly situated employees forthwith in accordance with Rules applicable to Government employees. Let decision be taken in pursuance of the observations made in the body of the present judgment expeditiously say, within three months from the date of receipt of a certified copy of this order. Respondents shall also ensure the payment of arrears of salary expeditiously say, within six months. "
6. Consequently, the State Government in exercise of powers conferred under Section 55 read with Sub-section (1) of Section 5 of the Uttar Pradesh Urban Planning and Development Act, 19734, framed the Uttar Pradesh Development Authorities Centralized Services Retirement Rules, 20115. In compliance of the judgment and pursuant to Sub-clause (iii) of Rule 1 of the Retirement Benefit Rules, 2011, Government Order dated 22 December 2011, came to be issued by the State Government conferring pension to all the employees of the Development Authorities, including those, who retired prior to the commencement of the Retirement Benefit Rules, 2011.
7. Pursuant to the Government Order and Retirement Benefit Rules, 2011, husband of the petitioner made an application on 6 February 2012, in the prescribed proforma for computation of his pension. However, died on 29 July 2012, before the pension could be sanctioned. After the death of her husband, petitioner applied for arrears of pension and family pension. The respondent authorities kept the matter pending. The fourth respondent, Finance Controller, Allahabad Development Authority, for the first time on 19 December 2015 sent the Pension Pay Order (PPO) to the office of the fifth respondent, Finance Controller, Lucknow Development Authority for approval. It appears that the PPO came to be rejected by the fifth respondent. The fourth respondent again on 17 March 2016 prepared a PPO which was sent to the fifth respondent for approval which again came to be returned/rejected with objections on 10 June 2016 stating therein that the family pension of the petitioner was wrongly computed. In the meantime, the State Government and other Local Bodies including the Development Authorities, accepted and implemented the recommendations of the 6th Pay Commission. Accordingly, petitioner apprised the fourth respondent to compute the family pension in the light of Government Orders dated 8 December 2008 read with 21 January 2016. It appears that nothing was done by the respondent authorities despite the petitioner being made to run from post to pillar. Finally, petitioner lodged a formal complaint before the third respondent, Vice Chairman, Allahabad Development Authority. It appears, thereafter, the fourth respondent vide communication dated 6 September 2016 computed the pension of the husband of the petitioner at Rs. 13677/- plus dearness allowance and family pension at Rs. 11052/- plus dearness allowance.
8. The harassment of the petitioner at the hands of the respondent authorities did not end there, the PPO dated 17 March 2016, which came to be rejected earlier was approved by the fifth respondent vide communication dated 6 September 2016. Accordingly, the bank was informed vide communication/order dated 26 September 2016. It is urged that authorities to further harass the petitioner had deliberately referred the family pension as ''basic retirement pension' and petitioner was referred to as ''retired Chief Engineer' in the communication issued to the bank. Consequently, the bank declined to honour the communication in view of the blatant errors. According to the petitioner it was wilful and deliberate. It is urged that even after filing the instant writ petition in November 2016, the alleged mistakes was not rectified, consequently, the petitioner did not receive family pension. It was on the intervention of this Court that the arrears of pension was paid to her but the communication to the bank was not rectified/corrected, petitioner, therefore, was not receiving pension on month to month basis.
9. That apart the, primary grievance of the petitioner is that while computing the pension and family pension, the respondent authorities have not followed the computation tabulation provided in the Government Orders issued since 8 December 2008 until 21 January 2016. According to the petitioner revised basic pension of her husband is required to be computed at Rs. 23050, and the revised basic family pension at Rs. 13830 upon implementation of the 6th Pay Commission recommendations w.e.f. 1 January 2006 by the State Government.
10. In the aforesaid backdrop, petitioner primarily seeks the following reliefs:
" i. Issue an appropriate writ, order or direction in the nature of certiorari, quashing clause-6 of the Government Order dated 5 July 2016 (Annexure No. 1 to the writ petition) so far as it denies the payment of arrears of revised pension w.e.f. 01.01.2006 to the late husband of the petitioner.
ii. issue an appropriate writ, order or direction in the nature of mandamus commanding upon the respondents to disburse all the benefits engrafted in the Government Order dated 5.7.2016, including the arrears of the pension payable to the late husband of the petitioner w.e.f. 1.10.2001 along with 12% interest forthwith.
iii. Issue an appropriate writ, order or direction in the nature of mandamus commanding the respondents to re-determine and pay the pension of the petitioner strictly in accordance with the Government Order dated 21.1.2016 issued by the State Government along with 12% interest."
11. It is urged by the learned counsel for the petitioner that the husband of the petitioner was a member of the Centralized Services, he retired from the post of Chief Engineer in 2001. After promulgation of Retirement Benefit Rules, 2011, husband of the petitioner and the petitioner is entitled to pension/and family pension, respectively as per Government Orders. Under the Retirement Benefit Rules, 2011, read with the Government Orders issued from time to time, the employees of the Centralized Services are entitled to pension at par with the Government Servants, including, revised pension pursuant to the recommendations of the respective Pay Commissions. It is contended that the respondents have arbitrarily not computed/revised the pension/family pension of the petitioner pursuant to the formula/computation provided by the Government orders duly accepted and notified by the State Government.
12. It is further urged that it is admitted by the respondents that the recommendations of the Pay Commissions (VI and VII) have been duly applied to the employees of the Development Authorities in the State of Uttar Pradesh. It is not being disputed by the respondents that employees of the Centralized Services retiring as on date are receiving pension computed as per the recommendations of the 7th Pay Commission. In view thereof, it is urged that the employees, who retired earlier cannot be discriminated, being members of the same pension scheme, hence, are entitled to revised pension. The respondents cannot create a class within a class of pensioners, who stand on equal footing in the common pension scheme that came to be implemented in 2011 and is applicable uniformly to all the pensioners including those, who retired prior to the promulgation of Retirement Rules, 2011. Accordingly, it is submitted that petitioner is entitled to revised pension computed and implemented at par with State Government employees.
13. In rebuttal, learned Standing Counsel appearing for the first and second respondent, and learned counsels appearing for the third, fourth and fifth respondents submit that Development Authorities are autonomous bodies and the Government Orders issued from time to time pertaining to salary and pension are not automatically applicable upon the employees of the Development Authorities. It is upon adoption of the Government Orders by respective Development Authorities, the employees are entitled to pension/family pension. The Development Authorities are not bound to accept the Government Orders in totally issued intermittently revising the family pension, including, computation formula thereof. It is open to the respective Development Authority, depending upon the financial capacity to partially adopt the Government Order.
14. Learned counsel appearing for the third, fourth and fifth respondents submit that the Development Authority has not revised the pension and family pension of retirees and they continue to receive the pension plus dearness allowance that they were entitled to at the time of retirement or upon the death of the employee. The approval and sanction of the State Government with regard to revised pension/family pension pursuant to the recommendation of the 7th Pay Commission is pending with the State Government. It is accordingly urged that the petition lacks merit and is liable to be dismissed.
15. Rival submissions falls for consideration.
16. The point for determination is (i) whether the Government Orders pertaining to pension/family pension applicable to Government Servants would automatically apply to the members of the Centralised Services of the Development Authority (ii) whether Development Authority is required to take approval from the State Government before implementing the Government Orders revising the pension/family pension pursuant to the recommendations of the Pay Commission accepted by the State Government.
17. Before proceeding to consider the rival contentions and submissions, it would be apposite to examine the Act, Rules and Government Orders governing the employees of the Development Authorities, in particular, members of the Centralized Services with regard to salary, pension and family pension.
18. State Legislature promulgated the Development Act, 1973 (U.P. Act 30 of 1974). The Act was enacted for the development of certain areas of Uttar Pradesh according to plan and for matters ancillary thereto. The State Government constituted Development Authorities in the State in relation to Development Area, constituted as per the provisions of Section 4, upon notification in the Gazette.
19. Section 5 of Development Act, 1973, provides for staff of the Development Authority. Section 5 reads thus:
"5. Staff of the Authority:
(1) The State Government may appoint two suitable persons respectively as the Secretary and the Chief Accounts Officer of the Authority who shall exercise such powers and perform such duties as may be prescribed by regulations or delegated to them by the Authority or its Vice-Chairman.
(2) Subject to such control and restrictions as may be determined by general or special order of the State Government, the Authority may appoint such number of other officer and employees as may be necessary for the efficient performance of its functions and may determine their designations and grades.
(3) The Secretary, the Chief Accounts Officer and other Officers and employees of the Authority shall be entitled to receive from the funds of the Authority such salaries and allowances and shall be governed by such salaries and allowances and shall be governed by other conditions of service as may be determined by regulations made in that behalf."
20. On bare reading, Section 5 empowers the State Government to appoint Secretary and Chief Accounts Officer of Development Authority, who shall exercise such powers and duties as may be prescribed by the regulations or delegated to them by the Development Authority subject to such control and restrictions as may be determined by the general or special order of the State Government. The Development Authority has been conferred power to make appointment of officers and employees as may be necessary for the efficient performance of its functions and determine their designations and grades. The Secretary, Chief Accounts Officer and other officials and employees of the Development Authority shall be entitled to receive salaries and allowances from the funds of the Development Authority and shall be governed by such other conditions of service as may be determined by the regulations made in that behalf.
21. Section 5-A confers power upon the State Government by notification to create one or more Centralized Services for such posts, other than the post mentioned in Sub-section (4) of Section 59, common to all the Development Authorities. The post as per Sub-section (6) is transferable from one Development Authority to another Development Authority. Relevant portion of Section 5-A for the purposes of instant case is being extracted:
"5-A. Creation of Centralised Services:
(1) Notwithstanding anything to the contrary contained in Section 5 or in any other law for the time being in force, the State Government may at any time, by notification create one or more 'Development Authorities Centralised Services for such posts, other than the posts mentioned in Sub-Section (1) of Section 59, as the State Government may deem fit, common to all the Development Authorities, and may prescribe the manner and conditions of recruitment to and the terms and conditions of service of person appointed to such service.
(2) Upon creation of a Development Authorities Centralised Service, a person serving on the posts included in such service immediately before such creation, not being a person governed by the U.P. Palika (Centralized) Services Rules, 1966. or serving on deputation, shall, unless he opts otherwise, be absorbed in such service.-
(a) .........
(b) .........
(3) xxxxx (4) xxxxx (5) xxxxx
(a) .........
(b) .........
(6) It shall be lawful for the State Government or any officer authorised by it in this behalf, to transfer any person holding any post a Development Authorities Centralised Service from one Development Authority to another."
22. On specific query, the learned counsel for the State-respondents informs that there are twenty four Development Authorities in the State having single Centralized Services common to all Development Authorities governed by the same conditions of service.
23. Chapter VII of Development Act, 1973, provides for Finance, Accounts and Audit. Section 24, thereunder, provides for pension and provident fund. Section 24 reads thus:
"24. Pension and Provident Funds: -
(1) The Authority may constitute for the benefit of its whole time paid members and of its officers and other employees in such manner and subject to such conditions, as the State Government may specify, such pension or Provident funds as it may deem.
(2) Where any such person, or provident fund has been constituted, the State Government may declare that the provisions of the Provident Funds Act, 1925, shall apply to such fund as if it were Government Provident Fund."
24. Section 56 confers power upon the Development Authority to make regulations with the previous approval of the State Government for administration of the affairs of the Development Authority including salaries, allowances and conditions of service of its employees. Relevant portion of Section 56 is extracted:
"56.Power to make regulations.-
(1) An Authority may,with the previous approval of the State Government, make regulations not inconsistent with this Act and the rule made thereunder for the administration of the affairs of the Authority.
(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely-
(a) ..........
(b) ..........
(c) the salaries, allowance and conditions of service of the Secretary, Chief Accounts Officer and other officers and employees:
(d) ..........
(e) ..........
(f) ..........
(g) .........
(h) ..........
(i) ..........
(3) xxxxxx"
25. The State Government in exercise of power conferred under Section 5A of Development Act, 1973, notified the U.P. Development Authorities Centralized Services Rules, 19856, on 25 June 1985, applicable to all the Development Authorities [Sub Rule (2) of Rule 1]. The cadre and strength of service has been provided under Rule 3. The age of superannuation and retiring pension is provided under Rule 34. Rule 37 mandates that any matter not covered by these Rules or by special orders, the members of service shall be governed by the rules, regulations and orders applicable generally to the Government Servants of Uttar Pradesh. Rule 34 & 37 of the Centralised Services Rules, 1985, is extracted:
"34. Age of retirement.- (1) Subject to the provisions of Sub-rules (2) and (3), the age of retirement from service of all officers and other employees of the service shall be sixty years beyond which no one shall ordinarily be retained in the service.
(2) xxxxxx (3) xxxxxx (4) A retiring pension and/or other retirement benefits, if any, shall be available in accordance with and subject to the provisions of the relevant rules applicable to every officer or other employees who retires or is required or allowed to retire under this rule.
Explanation--(1) xxxxxx (2) xxxxxx
37. Regulation of other matters.- (1) If any dispute of difficulty arises regarding interpretation of any of the provisions of these rules, the same shall be referred to the Government whose decision shall be final.
(2) In regard to the matters not covered by these rules or by special orders, the members of service shall be governed by the rules, regulations and orders applicable generally to U.P. Government servants serving in connection with the affairs of the State.
(3) Matters not covered by sub-rules (1) and (2) above shall be governed, by such orders as the Government may deem proper to issue."
26. Rule 31 provides for leave, leave allowances, officiating pay, fee and honorarium as is admissible to the Government Servants of like status under the U.P. Financial Hand Book, Volume II, Parts II and IV.
27. Admittedly, all the employees working earlier in Nagar Palika, Nagar Nigam and later on, whose services were merged/absorbed with the Centralised Services, were being paid regular pension in view of the provisions of Section 59 of Development Act, 1973, and pursuant to Government Orders dated 17 March 1983 and 29 September 1983, until April 1999. Thereafter, pension was stopped and was not being paid to the employees of the Development Authority.
28. Prior to April 1999, until framing of the Retirement Benefit Rules 2011, under the Development Act, 1973, the provisions of the Uttar Pradesh Palika (Centralized) Services Retirement Benefit Rules, 19817, was applicable to the employees of the Development Authorities. Family pension is provided under Rule 7 of Chapter III which reads thus:
**Hkkx&rhu ikfjokfjd isa'ku 7- ikfjokfjd isa'ku& fdlh dsUnzhf;r lsok esa fu;qDr fdlh O;fDr ds ifjokfjd isa'ku mRrj izns'k ds dk;Zdykiksa ds lEcU/k esa lsokjr ljdkjh lsodksa ij ykxw la;qDr fu;eksa }kjk fofu;fer gksxhA** "Part - 3 Family pension
7. Family pension-
The family pension of any person appointed in any Centralized Service shall be regulated in terms of common rules applicable to serving Uttar Pradesh government servants attending to its affairs."
(Translation by the Court)
29. The Government order dated 4 April 1999, stopping the pension was set aside in Praveen Kumar Agrawal2, State Government, thereafter, framed the Retirement Benefits Rules, 2011, which governs the payment of pension/family pension of the employees of the Development Authorities. Part‒I deals with ''Pension and Gratuity'. Rule 4 provides calculation of pension and gratuity according to the procedure and formula applicable to employees of the State Government. Relevant portion of Rule 4 is extracted:
"4. Calculation of Pension and Gratuity-
(1) The amount of superannuation, retirement, invalid and compensation pension and gratuity shall be appropriate amount calculated according to the procedure and formula applicable to the employees of the Uttar Pradesh Government.
xxx xxx xxx xxx xxx xxx xxx xxx (2) xxx xxx xxx xxx (3) The expression "invalid and compensation pension" will have the same meaning as is assigned to it in respect of the employees of the State Government."
30. Part-III of the Retirement Benefit Rules, 2011, provides for family pension, regulated by the relevant rules applicable to Government Servants of the State of Uttar Pradesh. Rule 7 is extracted:
"7. The Family Pension to the family of a member of the service shall be regulated by the relevant rules applicable to Government Servants services in connection with the affairs of the State of Uttar Pradesh."
31. The Government in exercise of power conferred under proviso to Sub-clause (3) of Rule 1 of Retirement Benefit Rules, 2011, and in compliance of the decision rendered in Praveen Kumar Agrawal2, issued Government Order conferring the benefit of pension/family pension to all the employees of Development Authority, who retired prior to 11 November 2011. In other words, the Retirement Benefit Rules, 2011, covered all the employees and members of the Centralized Services retiring prior to 2011 and thereafter. Husband of the petitioner pursuant thereunder applied for pension, however, died on 29 July 2012. Petitioner, thereafter, pursued the matter with the respondent-authorities for arrears, pension and family pension, revised from time to time, with effect from the date of retirement of the husband of the petitioner i.e. 30 September 2001.
32. The State Government vide Government Order dated 8 December 2008, accepted the recommendation of the Sixth Central Pay Commission proposed by the Uttar Pradesh Pay Committee. The Government Order was made applicable to all the employees of the State Government retired prior to 1 January 2006. Along with Government Order, a tabular chart showing existing Basic Pension/Family Pension without dearness allowance, Basic Pension/Family Pension with dearness allowance and the consolidated Pension/Family Pension was appended for computation of pension/revised pension. The Government Order further provided that the amount of family pension shall not be lower than 30% of the sum minimum of the pay in the pay-band and grade pay corresponding to the pay scale in which the government servant retired prior to 1 January 2006. Clause 4(1) of the Government Order, however, provides a rider that pension will be reduced pro rata where the pensioner had less than 33 years of service. According to the petitioner, minimum basic pension of the deceased-employee would be computed as under:
Pension vide 5th Pay Commission i.e. Prior to 01.01.2006 As per formula in Clause 4(1) w.e.f. 01.01.2006 (as per Pension Table) As per proviso of Para4-(1) (after pro-rata reduction as per rider of 33 years of service) As per Proviso of Clause 4-(1).
(without applying rider of 33 years service) Rs.6,051/-
Rs.13,677/-
Rs.17,113/-
Rs.23,050/-
33. Similarly, the minimum basic family pension of the petitioner w.e.f. 1 January 2006 works out to be:
As per formula in Clause 4(1) As per Proviso of Clause 4(1) Rs.11,052/-
Rs.13,830/-
34. Relevant portion of Government Order dated 8 December 2008 is extracted:
mRrj izns'k 'kklu foRr ¼lkekU;½ vuqHkkx&3 y[kuÅ% fnukad % 8 fnlEcj 2008 dk;kZy;&Kki fo"k; % osru lfefr mRrj izns'k] 2008 dh laLrqfr;ksa dks Lohdkj fd;s tkus ds QyLo:i fnukad 01-01-2006 ds iwoZ lsokfuo`Rr jkT; ljdkj ds flfoy isa'kujksa@ikfjokfjd isa'kujksa dh isa'ku@ikfjokfjd isa'ku dk vfHkuohdj.k@ iqujh{k.kA 1& mijksaDr fo"k; ij v/kksgLrk{kjh dks ;g dgus dk funs'k gqvk gS fd jkT;iky egksn; us osru lfefr mRrj izns'k 2008 dh laLrqfr;ksa dks Lohdkj djrs gq, fnukad 01-01-2006 ds iwoZ lsokfuo`Rr @ e`r lHkh flfoy isa'kujksa @ ikfjokfjd isa'kujksa dh isa'kuksa ds vfHkuohdj.k @ iqujh{k.k ds laca/k esa fuEu vkns'k iznku fd, gSaA 2& xxx xxx xxx 3& xxx xxx xxx 4&¼1½ ,sls isa'kujksa @ ikfjokfjd isa'kujksa dh isa'ku @ ikfjokfjd isa'ku tks fnukad 01-10-2006 ds iwoZ ls isa'ku @ ikfjokfjd isa'ku izkIr dj jgs gSa] dk lesdu fnukad 01-01-2006 ls fuEufyf[kr /kujkf'k;ksa dks lfEefyr djds fd;k tk;sxk %& ¼i½ orZeku isa'ku @ ikfjokfjd isa'ku] ¼ii½ egWxkbZ isa'ku tgkW vuqeU; gks] ¼iii½ orZeku egWxkbZ jkgr tSlk fd vkSlr AICPI536 ¼o"kZ 1982&100 ds vk/kkj ij½ ewy isa'ku @ewy ikfjokfjd isa'ku rFkk egWxkbZ isa'ku ds 24 izfr'kr ds cjkcj vuqeU; gS 'kklukns'k la[;k& lk&3&1746@nl&2005&308@2004] fnukad 02 fnlEcj 2005 ds vuqlkj egWxkbZ jkgr ds 50 izfr'kr ds cjkcj /kujkf'k dks egWaxkbZ isa'ku esa ifjofrZr djrs gq,] ¼iv½ isa'ku @ ikfjokfjd isa'ku] ds 40 izfr'kr ds fQVesUV osVst dh /kujkf'k Hkh lfEefyr gksxhA ftu izdj.kksa esa orZeku isa'ku dh /kujkf'k esa 50 izfr'kr dh egWaxkbZ jkgr dh /kujkf'k lfEefyr gS mu izdj.kksa esa fQVesUV osVst dh /kujkf'k dh x.kuk ewy isa'ku ij vFkkZr egWaxkbZ isa'ku dh /kujkf'k ?kVkdj dh tk,xhA bl izdkj vxf.kr isa'ku @ ikfjokfjd isa'ku] dks fnukad 01-01-2006 ls ewy isa'ku ekuk tk,xkA fdUrq izfrcU/k ;g gksxk fd isa'kuj dh isa'ku dh /kujkf'k lsokfuo`fRr ds le; mlds iqjkus osrueku ds izfrLFkkfir is cS.M ds U;wure rFkk lacaf/kr xzsM is d ;ksx ds 50 izfr'kr dh /kujkf'k ls de ugha gksxhA tgkW vgZdkjh lsok 33 o"kZ ls de gS ogkW ;g /kujkf'k vuqikfjr :i ls de dj nh tk,xh fdUrq fdlh Hkh n'kk esa ;g :03500@& izfrekg ls de ugha gksxhA blh izdkj ikfjokfjd isa'ku dh /kujkf'k lacaf/kr ljdkjh lsod ds fnukad 01-01-2006 ls iqjkus osrueku ds izfrLFkkfir is cS.M ds U;wure rFkk lacaf/kr xzsM is ds ;ksx ds 30 izfr'kr fdUrq fdlh Hkh n'kk esa ;g :0 3500@& izfrekg ls de ugha gksxhA** Government of Uttar Pradesh Vitta (Samanya) Anubhag - 3 Lucknow: Dated: 8th December 2008 Office Memo Subject:
Up-gradation/revision of pension/family pension of the civil pensioners/family pensioners of the state government retired prior to 01.01.2006, consequent to the approval of the recommendations made by the Pay Committee, Uttar Pradesh, 2008.
1- On the above-mentioned subject, the undersigned is directed to say that Hon'ble Governor while accepting the recommendations of the Pay Committee, Uttar Pradesh, 2008 for up-gradation/revision of all the civil pensioners/family pensioners retired/deceased before 01.01.2006, has given the following orders:
2- xxxxxx 3- xxxxxx 4-(1) The pension/family pension of those pensioners/family pensioners who have been obtaining pension/family pension since prior to 01.10.2006, shall be consolidated by aggregating the following amounts: -
(i)- Current pension/family pension,
(ii)- Dearness pension, wherever admissible,
(iii)- The dearness relief, currently admissible, is equal to 24 percent of original pension/original family pension and dearness pension on the basis of AICPI536 (on the basis of 100 in 1982); and by converting the amount equal to 50 percent of the dearness relief into dearness pension in terms of the Government Order No. Sa-2-1746/X-2005-308/2004, dated 02nd December, 2005,
(iv)- The amount of fitment weightage being 40 percent of the pension/ family pension shall also be included in the said pension/ family pension.
In the cases wherein dearness relief @ 50 percent is included in the present pension amount, the amount of fitment weightage shall be calculated on basic pension i.e. after deducting the amount of dearness relief from pension.
The pension/ family pension thus calculated shall be taken to be the basic pension w.e.f. 01.01.2006.
Provided that the pension of the pensioner shall be not less than 50 percent of the total of minimum of pay-band corresponding to his old pay-scale and corresponding grade pay at the time of his superannuation. Where his service is less than 33-year qualifying service, this amount shall be reduced in the same ratio but in any circumstance it shall not be less than Rs 3500/-.
Similarly, the amount of the family pension shall in any condition be not less than 30 percent of the total of minimum of pay band replacing the old pay scale of the government servant as on 01.01.2006 and corresponding grade-pay, subject to minimum of Rs 3500/- per month."
[Translation by the Court]
35. Table, part of the Government Order, computes the existing Basic Pension/Family Pension without Dearness Pension/Family Dearness (Column-1), Basic Pension/Family Pension without Dearness Pension/Family Dearness Pension (Column-2), and Revised Consolidated Pension/Family Pension (Column-3) in so far it relates to the ex-employee and the petitioner is extracted:
BP (pre 2006) without DP BP (pre 2006) with DP Revised Consolidated Pension BP (pre 2006) without DP BP (pre 2006) with DP Revised Consolidated Pension BP (pre 2006) without DP BP (pre 2006) with DP Revised Consolidated Pension BP (pre 2006) without DP BP (pre 2006) with DP Revised Consolidated Pension (1) (2) (3) (1) (2) (3) (1) (2) (3) (1) (2) (3) 4890 7335 11052 BP (pre 2006) without DP BP (pre 2006) with DP Revised Consolidated Pension BP (pre 2006) without DP BP (pre 2006) with DP Revised Consolidated Pension BP (pre 2006) without DP BP (pre 2006) with DP Revised Consolidated Pension BP (pre 2006) without DP BP (pre 2006) with DP Revised Consolidated Pension (1) (2) (3) (1) (2) (3) (1) (2) (3) (1) (2) (3) 6051 9077 13677
36. The Finance Department of the State Government vide resolve dated 7 February 2009, has accepted the recommendations of the 6th Pay Commission and is applicable on all Local Bodies, including, the Development Authorities. It further clarifies that the State Government shall not be responsible to provide funds to meet the expenses which has to be borne by the respective Local Bodies/Development Authorities. Relevant portion of the resolve dated 7 February 2009 is extracted:
i<+k x;k % osru lfefr ¼2008½ ds f}rh; izfrosnu Hkkx&1 esa dh xbZ laLrqfr;kWaaA i;kZykspkukFkZ& 'kklu }kjk osru lfefr ds f}rh; izfrosnu Hkkx&1 esa uxjh; LFkkuh; fudk;] ftyk iapk;r] ty laLFkku rFkk fodkl izkf/kdj.kksa ds fofHkUu Js.kh ds deZpkfj;ksa@ vf/kdkfj;ksa ds laca/k esa dh x;h laLrqfr;ksa ij fopkj fd;k x;kA 'kklu us osru lfefr ds f}rh; izfrosnu Hkkx&1 esa dh x;h laLrqfr;ksa dks fuEukuqlkj Lohdkj dj fy;k gS%&& ¼1½ iqujhf{kr osru lajpuk esa osru cS.M rFkk xzsM osru esa fuf/kZfjr osru fnukad 01&1&2006 vFkok fn;s x;s fodYi dh frfFk ls ns; gksxk ,oa egaxkbZ HkRrs dh la'kksf/kr njsa osru lfefr dh laLrqfr ds vuqlkj jkT; deZpkfj;ksa ds leku ns; gksaxhA ¼2½-----------------------
¼3½ iqujhf{kr osru lajpuk esa osru fu/kkZj.k jktdh; deZpkfj;ksa@vf/kdkfj;ksa ds laca/k esa osru lfefr ds izFke izfrosnu ds ek/;e ls dh x;h laLrqfr;ksa ij 'kklu }kjk fy;s x;s fu.kZ; ds avuqlkj fd;k tk,xkA ¼4½---------------------
¼5½ uxjh; LFkkuh; fudk;] ftyk iapk;r] ty laLFkku rFkk fodkl izkf/kdj.kksa ds fofHkUu Js.kh ds ,sls dkfeZd@isa'kuj@ikfjokfjd isa'kuj ftUgsa isa'ku dh lqfo/kk iwoZ ls jktdh; deZpkfj;ksa ds lkn`'; vuqeU; gS] ds fy, isa'ku iqujh{k.k dh ogh izfdz;k viuk;h tk;sxh tks izfdz;k jktdh; dkfeZdksa@isaa'kujksa@ikfjokfjd isa'kujksa ds laca/k esa ykxw dh x;h gSA lkFk gh vU; ,sls lsok uSo`fRrd ykHk] tks iwoZ ls jktdh; dkfeZdksa ds lkn`'; vuqeU; gSa] dk iqujh{k.k Hkh jktdh; foHkkxksa ds dkfeZdksa@isa'kkujksaa@ikfjokfjd isa'kujksa ds laca/k esaa osru lfefr ds izFke izfrosnu ds ek/;e ls dh x;h laLrqfr;ksa ij 'kklu }kjk fy;s x;s fu.kZ; ds vuqlkj fd;k tk,xkA ¼6½-------------------
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¼12½ fodkl izkf/kdj.kksa ds deZpkfj;ksa@ vf/kdkfj;ksa dks iqujhf{kr osru lajpuk] HkRrs ,oa lqfo/kkvksa rFkk vU; YkkHk bl izfrcU/k ds lkFk vuqeU; djk;s tk;saxs fd mDr ij vkus okys O;;Hkkj dks ogu djus gsrq jkT; ljdkj }kjk fdlh Hkh izdkj dh foRrh; lgk;rk ugha nh tk;sxh rFkk _.knkrk foRrh; laLFkkvksa ds ns;ksa vFkok 'kkldh; ns;ksa] ;fn dksbZ gksa] ds Hkqxrku esa dksbZ O;o/kku mRiUu ugha gksxkA izkf/kdj.kksa dks vius dkfeZdksa dks iqujhf{kr osru lajpuk dk YkkHk vuqeU; djk;s tkus ls vf/k"Bku O;; esa gksus okyh o`f} ds vk/kkj ij _.knkrk laLFkkvksa ,oa 'kkldh; ns;ksa] ;fn dksbZ gks] ds Hkqxrku esa dksbZ NwV ugha nh tk,xhA ¼13½------------------
¼14½------------------
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vkns'k vkns'k fn;k tkrk gS fd ;g ladYi tu&lk/kkj.k dh lwpuk ds fy, mRrj izns'k xtV esa izdkf'kr fd;k tk;A ladYi rFkk osru lfefr dk f}rh; izfrosnu Hkkx&1 foRr foHkkx dh osc lkbV ij j[kk tk; vkSj lEcfU/kr foHkkxksa dks Hkh Hksth tk;saA ;g Hkh vkns'k fn;k tkrk gS fd osru lfefr ds f}rh; izfrosnu Hkkx&1 rFkk ladYi dh izfr;kWa] lEcfU/kr lsok la?kksa vkSj turk ds fy, fcdzh gsrq miyC/k j[kh tk;saA
37. The State Government, thereafter, issued corrigendum dated 19 July 2010, along with a Table showing the revised pay structure and corresponding minimum pensions. Item No. 18 of the Table shows the corresponding minimum revised basic pension admissible to the husband of the petitioner at Rs.23,000+D.A. per month. Similar Government Order/Corrigendum dated 12 October 2010, came to be issued by the State Government revising minimum basic pension. Item No. 12 of the enclosed Table to the Government Order shows the minimum basic family pension admissible to the petitioner at Rs.13,830/-. Thereafter, State Government again issued a Government Order/Corrigendum dated 7 November 2014 & 14 July 2014 revising the pension and family pension of certain lower pay scales which is not applicable to the facts of the instant case. Subsequently, the State Government issued Government Order dated 21 January 2016, clarifying that family pension shall not be less than thirty percent of the basic pension. The Table enclosed along with the Government Order reflects that the revised basic pension of the husband of the petitioner is at Rs. 23,050/- and revised basic family pension admissible to the petitioner is at Rs.13,830/-.
38. Grievance of the petitioner is that petitioner is entitled to the revised pension computed by the State Government as against the pension/family pension computed/approved and sanctioned by the respondents at Rs.13,677/- and 11,052/- respectively.
39. Having considered the provisions of the Act, Rules and the Government Orders, I proceed to consider the rival submissions of the parties.
40. Facts, interse, parties are not in dispute. This Court in Praveen Kumar Agrawal2 held that the members of the Centralized Services are entitled to pension admissible to the employees of the State Government. Retirement Benefit Rules, 2011, in particular Rule 4 and 7 categorically provides that the amount of pension and family pension shall be "calculated according to the procedure and formula applicable to the employees of the Uttar Pradesh Government". The family pension is regulated by the "relevant rules applicable to the Government Servants services in connection with the affairs of the State of Uttar Pradesh". On joint reading of Rule 4 and 7 along with Section 24 of Development Act, 1973, it is evident that the rules/orders made applicable to the employees of the State Government and the formula for computation of pension and family pension thereunder would apply by reference to the employees of the Development Authority. The Rules are binding upon the Development Authorities. Prior to the enactment of Retirement Benefit Rules, 2011, similar provision was contained in the Rules, 1981, and Rules, 1985, which was applicable upon the employees of the Development Authority. Rule 37 of Rules, 1981 clearly provided that family pension admissible to the employees of the State Government and the rules framed thereunder would apply. In other words, the employees including the members of the Centralized Services were receiving pension/family pension and revised family pension at par with the government servants determined by the State Government from time to time. The employees of Development Authorities, thereafter, are entitled to pension/family pension at the rate admissible to Government Servants.
41. In Pepsu Road Transport Corporation Patialia vs. Mangal Singh and others8, the Supreme Court held that Rules/Regulations validly made is legislative in nature and binding upon the statutory bodies and the employees.
"The Regulations validly made under statutory powers are binding and effective as the enactment of the competent legislature. The statutory bodies as well as general public are bound to comply with the terms and conditions laid down in the Regulations as a legal compulsion. Any action or order in breach of the terms and conditions of the Regulations shall amount to violation of Regulations which are in the nature of statutory provisions and shall render such action or order illegal and invalid. Even in the case of non-statutory Regulations, specifically providing for the grant of pensionary benefits to the employee qua his employer shall be governed by the terms and conditions encapsulated in such non-statutory Regulations."
42. It is clear that the government order/resolution of Development Authority cannot supersede provisions of Act/or statutory Rules. The view is fortified by the judgment of the Supreme Court in Union of India versus Charanjeet S. Gill9 and Public Service Commission, Uttaranchal Versus JCS Bora10, the relevant portion reads thus:
"28.............It is settled proposition of law that the executive orders cannot supplant the Rules framed under the proviso to Article 309 of the Constitution of India. Such executive orders/ instructions can only supplement the Rules framed under the proviso to Article 309 of the Constitution of India."
43. Where an earlier legislation is incorporated into a later legislation, the provisions of earlier law which are incorporated into the later law become part and parcel of the later law. The amendments made in the earlier law after the date of incorporation, which are not expressly made applicable to the subsequent Act, cannot, by their own force, be read into the later Act. Similarly, repeal of the earlier Act by a third Act does not affect the incorporating Act. There is a distinction between legislation by incorporation and that by reference inasmuch as in the latter case the amendments made in the earlier legislation would be applicable to the referring legislation. Applying the principle in the instant case the Retirement Benefit Rules, 2011, makes applicable the Government Orders, insofar it relates to pension/family pension, by reference. The subsequent amendments made thereto would therefore also apply.
44. Supreme Court in Bajaya v. Gopikabai11 explained the distinction between legislation by reference and incorporation.
"Legislation by referential incorporation falls in two categories, (a) where a statute by specific reference incorporates the provisions of another statute as of the time of adoption : and (b) where a statute incorporates by general reference the law concerning a particular subject, as a genus. In case (a) the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. But in the category (b) it may be presumed that the legislative intent was to include all the subsequent amendments also made from time to time in the generic law on the subject adopted by general reference."
(Refer: Western Coalfields Limited vs. Special Area Development Authority, Korba12)
67. The Division Bench of this Court in Chandra Pal Singh & others vs. State of U.P. through Principal Secretary Housing Civil Secretariat & others13, was called upon to consider the plea of retired employees of the U.P. Avas Evam Vikas Parishad, a statutory authority constituted under the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965, whether the petitioners therein were entitled to revised pay as per Sixth Pay Commission w.e.f. 1 January 2006. The Government order dated 8 December 2008, which is relied upon in the instant case, was considered. The Court was of the view that statutory regulations framed by the Parishad providing pension/family pension admissible to the officers and employees of the State Government stands incorporated by reference. Relevant portion of para-24 is extracted:
"Considering the submissions of the parties, we are of the considered opinion that statutory regulations for the employees of the Parishad have been notified on 19th May, 2009, by virtue of which, employees of the Parishad are held entitled to payment of pension/family pension and gratuity as is admissible to the officers and employees of the State Government which has not been disputed also. The relevant Government Orders, as well as statutory scheme i.e. U.P. Civil Services Regulation, Pensions Rules, U.P. Retirement Benefit Rules, 1961, New Family Pension Scheme, 1965 and all orders of Finance Department in relation to pension/family pension/ gratuity as are applicable to the employees of the State Government stands incorporated by reference................ Except for the Government Order No. 1508 dated 8th December, 2008, there is no other Government Order regulating grant of financial benefits under the Sixth Pay Commission Report or payment of pension and gratuity to the employees of the State Government. This Government Order, therefore, would apply in its entirety to the employees of the Parishad by virtue of statutory Regulations of 2009. The exclusionary part under the Government Order dated 8th December, 2008 insofar as it exempts its applicability upon the employees of Public Enterprises and local bodies, would have to be read down and held to be inapplicable, so far as employees of the public corporations are concerned. This construction would be obvious in as much as the employees of Parishad would have to be treated at par with the employees of the State Government and the Government Orders issued for the employees of Government Corporations etc by bureau of Public Enterprises would have no applicability."
(Refer: Shivashray Rai and others vs. State of U.P. through Principal Secretary Housing Civil Secretariat14 affirmed in Special Appeal No. 610 of 201815).
45. The pleadings setforth by the respondents is relevant. Counter affidavit filed by the the Principal Secretary Department of Housing and Urban Planning, Government of Uttar Pradesh, has stated that the Government Orders issued from time to time, in particular Government Order dated 8 December 2008 and 21 January 2016, are applicable upon the retired employees of the State Government and is not applicable to the petitioner. However, it has been accepted that the pensioners of Centralized Services are governed by the Retirement Benefit Rules, 2011. Para 8 and 29 are extracted:
"8. That in reply to the contents of the paragraph no.-4 of the writ petition, it is submitted that the government orders dated 08.12.2008 and 21.01.2016 have been issued in respect of retired employees of State Government. Retirement benefits of pensioners of Development Authority Service are governed by Uttar Pradesh development Authorities Centralized Service Retirement Benefits Rules 2011. The Government Orders issued in respect of pensioners of state government are not applicable on pensioners of Development Authorities Service.
29. That in reply to the contents of the paragraph no.-37 of the writ petition, it is stated that the detailed reply has already been given in the preceding paragraphs of the instant counter affidavit. However, it is further stated that as far as Clause 4(i) of the said Government Order is concerned it is clarified that at that point of time calculation was made as per the procedure of the government order but this does not mean that the future amendments made by the State Government from time to time will automatically apply in totality upon the Development Authorities because Development Authorities are self financed autonomous body who are dependent on their own sources of income. The Development Authorities are totally dependent upon their own financial resources to make the payment of salary of their employees and their other expenses. These bodies do not receive any financial aid from the State Government for the purpose of payment of salary and the pension to their employees. The Government Orders issued by the State Government are not directly applicable upon the employees of the Authorities unless and until, it has been adopted/approved by the Board of the authorities keeping in view of their own financial condition."
46. The second respondent, Principal Secretary Department of Finance, Government of Uttar Pradesh filed counter affidavit stating therein that the Finance Department is an advisory department and the service matters of employees and departmental rules are administered by the concerned administrative departments. The pensionary benefits admissible to the employees of the Centralized Services is governed by the Retirement Benefit Rules, 2011. Paragraphs 4 and 7 of the counter affidavit filed by second respondent are extracted:
"4. That, as per the information made available by the Housing and Urban Planning Department, Government of Uttar Pradesh, Late Surendra Singh, petitioner's husband, joined his services in the Centralized Services of the development authority on 25/04/1977 and retired on 30/09/2001 on superannuation from Allahabad Development Authority. He passed away on 29/07/2012. Late Surendra Singh was granted pension as per the U.P. Development |Authority Centralize Service Retirement Benefits Rules, 2011, hereinafter referred to as the "Rules of 2011", which are applicable to the members of the Centralized Services of Deveoopment Authorities of Uttar Pradesh. After his death, his wife Mrs. Shakuntala Singh, who is the petitioner in the instant writ petition is being paid family pension as per the said rules.
7. That the petitioner is claiming the benefit of pension as per the Government Order dated 08/12/2008, which is applicable to the State pensioners and this Government order is not binding upon the development authorities."
47. The third and fourth respondents in their counter affidavit do not deny the facts and state that the pension of the ex-employee and the family pension of the petitioner was calculated as per the recommendations of Sixth Pay Commission w.e.f. 1 January 2006 on pro rata basis after reducing the qualifying service of the ex-employee being less than 33 years. It is further stated that the Government Orders dated 8 December 2008 does not apply to the members of the Centralized Services. Paragraphs 24, 33, 35, 40 of the counter affidavit filed by the third and fourth respondent are extracted:
"24. That in reply to the contents of paragraph no's. 37 & 38 of the writ petition, it is stated that the averments made in paragraphs under reply are incorrect and are denied. The true and correct facts are that the government order dated 08.12.2008 has further been substituted by the government orders dated 19.07.2010, 14.07.2014 & 21.01.2016. The judgment was delivered by the Lucknow bench of this Hon'ble court on 20.11.2010 and thereafter the G.O. dated 14.07.2014 and 21.01.2016 have been issued. As the government orders dated 14.07.2014 and 21.01.2016 have not yet been applicable to the employees of the Development Authorities, the payment of pension etc. has to be done as per the old procedure. The same is clearly explicit from the letter No.575/,Q0lh0@ds0is0@,y0Mh0,0@2016&2017 issued by the Lucknow Development Authority whereby the arrears of pension for the period of 01.10.2001 to 29.10.2016 for a sum of Rs. 28,21,540/- payable to the petitioner has been issued.
33. That in reply to the contents of paragraph no. 51 of the writ petition, it is stated that the averments made in paragraph under reply are not admitted in the manner stated. Only this much is admitted that the government orders dated 14.07.2014 and 21.01.2016 are not applicable to the petitioner, as the same are subsequent to the judgment delivered by the Hon'ble Lucknow bench of this Hon'ble court. The crux of the matter is that the government order issued by the state government upto 12.10.2010 alone can be applied. Thus the settled position is that the pension of the husband of the petitioner has been calculated by applying the formula vkSlr ifjyfC/k;k x lsok Nekgh ¼vf/kdre 66½@2 x 66. As is evident from the letter No. 575/,Q0lh0@ds0ih0@,y0Mh0,0@2016&17@ issued by the Lucknow Development Authority.
35. Only this much is admitted that the statement government has issued the government order dated 8.12.2008. However, the G.O. dated 8.12.2008 is in respect of the employees of the statement government and is not applicable to the employees of the centralized/non Centralized Services of the Development Authority.
40. Accordingly the pension of the husband of the petitioner as per the 6th pay commission was calculated from 01.01.2006 on basic pension of Rs. 6051/- revised to 13,677.00 plus D.A. upto 29.07.2012. Surendra Singh the husband of the petitioner died on 29.07.2012 and therefore the family pension was calculated on Rs. 11052.00 plus D.A. As per above the Area of Rs. 28,21,540.00 has been paid by L.D.A."
48. On perusal of the averments made in the counter affidavit, there appears to be consensus amongst the respondents that Retirement Benefit Rules, 2011, apply to the petitioner. Further, the Government Orders issued subsequent to the High Court judgment i.e. after 2010 has not been applied to the employees of the Development Authority. In other words the contention of the petitioner that subsequent Government Orders pertaining to pension/family pension has not been applied by the respondents in computing the revised pension/family pension has been admitted. The stand of the respondents is self contradictory and in teeth of the mandatory provision of the Retirement Benefit Rules, 2011, as per their own saying, mandating that Government Orders applicable to the Government Servant would apply to the employees of the Development Authority.
49. In the instant case, the respondents have taken oscillating and contradictory stand but on specific query, it is admitted by the learned counsel for the respondents that no alternate formula for computation of pension/family pension, other than that provided by the State Government, was followed and applied to the petitioner. The fifth respondent custodian of pension fund has not evolved a formula for computation of pension and family pension insofar as it relates to the employees of the Development Authorities. It is rather not open to the respondent-Development Authority on reading of the provisions of the Retired Benefit Rules, 2011, to adopt a formula other than that applicable to the Government Servants. In the event of the Development Authorities doing so, it will violate of the mandatory provisions of Retirement Benefit Rules, 2011, read with Section 24 of Development Act, 1973. The Development Authority lacks power and authority to override, deviate or rewrite the Rules framed by the State Government governing and regulating pension/family pension. It is accordingly held.
50. The implementation of the recommendations of the 7th Pay Commission insofar it relates to retirees, is pending approval with the State Government. It is, though, admitted that the Development Authority has sufficient funds to meet the expenses of the recommendations of the 7th Pay Commission from its own sources to pay revised pension to its employees.
51. The fifth respondent in the compliance affidavit has stated that the fifth respondent has been corresponding with the State Government for providing benefit of the increased/revised pension/family pension according to the recommendation of the 7th Pay Commission to the retired employees/family members of the Centralized Services. The approval from the State Government is awaited. It is further stated that the fifth respondent, Secretary, Lucknow Development Authority, vide communication dated 10 October 2017, addressed to the Joint Secretary Housing and Urban Planning Government of Uttar Pradesh has conveyed that the Development Authority is having the capacity to bear the expenses to finance the enhanced pension/revised family pension recommended by the 7th Pay Commission to the employees retired prior to 1 January 2016. Similar, subsequent communications until 24 August 2019, has been brought on record. Paragraphs 26 and 27 of the compliance affidavit are extracted:
"26. That the pension has been paid to the petitioner, in accordance with the Sixth Pay Commission.
27. That as stated aforesaid, several letters have been sent to the state government for providing the approval for applicability of seventh pay commission to the employees of Centralized Services, and the same is still pending for approval before the state government."
52. In the backdrop of the stand taken by the fifth respondent, the ancillary question that arises is as to whether, the Development Authority is bound to take approval of the State Government before implementing the recommendations of the respective Pay Commissions made applicable to the government servants through various Government Orders.
53. On having scanned the provisions of Development Act, 1973, and the Retirement Benefit Rules, 2011, it is clearly evident that Development Authority constituted under the Development Act, 1973, is an autonomous body, having separate fund and common Pension Fund. The salary, pension etc. of its employees are funded by the Development Authority from their own resources. The State Government does not fund the Development Authorities. The Retirement Benefit Rules, 2011, framed by the Government, being legislative, is binding upon the Development Authorities uniformally and even upon the State Government. The Retirement Benefit Rules, 2011, nowhere prohibits the Development Authorities from implementing the Government Orders without the prior approval of the State Government. Rather, what the Rule mandates is that the Government Orders, pertaining to pension/family pension issued in respect of Government Servants gets applicable and enforced upon the employees of the Development Authority by operation of law, no further act of approval is required at the end of the State Government or the resolution of the Development Authority. The stand of the respondents that the Government Orders do not apply to Development Authority and it is only upon adoption thereof by the respective Development Authority lacks merit. Further, the stand is negation of the concept of a common Centralized Services created by the State Government for all the Developments Authorities by enacting Rules 1985. The members thereunder are governed by uniform conditions of service, including, salary and pension. In view thereof, it is not open to the Development Authority to alter the condition of service by passing a resolution against the Act/Rules. Despite repeated query no such resolution defying the Government Orders referred herein above, has been placed on record.
54. In State of Uttar Pradesh versus Preetam Singh and others16, one of the issues before the Supreme Court was, as to whether, the Uttar Pradesh Avas Evam Vikas Parishad constituted under Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965, is required to take prior approval of the State Government before formulating the Pension Scheme for its employees in lieu of Contradictory Provident Fund (C.P.F.). The Court upon perusal of the Adhiniyam held that the previous approval of the State Government to frame regulations governing the conditions of service of its employee, including, pension was not required to be obtained by Parishad from the State Government.
55. In the facts of the instant case, the State Government in exercise of its powers under Development Act, 1973, framed the Retirement Benefit Rules, 2011, which govern the computation and payment of pension/family pension to the employees and their dependents. The Rules nowhere requires that the Government Orders issued by the State Government from time to time governing pension and family pension is required to be implemented by the Development Authority after obtaining approval from the State Government. Since the fifth respondent has taken a stand that they have the requisite amount in the Pension Fund, constituted under Rule 16 of Retirement Benefit Rules, 2011, the Development Authority can immediately without any approval implement the Government Orders revising the pension/ family pension of its employees pursuant to the Government Orders implementing the 7th Pay Commission. Rather the Government Orders comes into force the moment it is issued by the State Government.
56. The next question that arises is as to whether the Development Authorities can artificially fix cut of date to deprive the retirees revised pension. It is accepted by the respondents that the employees retired prior to 1 January 2006 are receiving pension/family pension as per the recommendations of the 6th Pay Commission, though, subsequent Government Orders providing the formula for computing pension/family pension, including, minimum family pension has not been applied to the retirees of Development Authority. The provision constituting the Pension Fund may be perused, in order to appreciate the submission.
57. Part VI of Retirement Benefit Rules, 2011, provides for establishment of Pension Fund and the procedure for payment therefrom. The fund is established under the control of the fifth respondent i.e. Finance Controller, Lucknow Development Authority, which is a common pension fund known as the ''Uttar Pradesh Development Authorities Centralized Services Pension Fund'. Rule 16 is extracted:
"16. Pension Fund- There shall be established under the control of the Finance Controller, Lucknow Development Authority a common pension fund to be known as the "Uttar Pradesh Development Authorities Centralized Services Pension Fund", hereinafter referred to as the ''fund'. The amount of pensionary contributions payable by the Authority under rule 11 shall be credited into this fund."
58. Rule 21 provides for sanction and preparation of Pension Payment Order. Relevant Portion of Rule 21 is extracted:
"21. Pension payment order- After the amount of pension/family pension/gratuity has been sanctioned under rule 13 of these rules "pension payment order in Form "M" shall be issued by the Vice Chairman. Development Authority for the payment of pension/family pension/gratuity sanctioned in each case. The copies of this order shall be endorsed to the pensioner. Finance Controller, Lucknow Development Authority: the Bank and Director, Local Fund Accounts, Uttar Pradesh:
Provided that the Vice Chairman, Development Authority may, if he is satisfied that there is a possibility of considerable delay in sanctioning pension/family pension/gratuity in a particular case, sanction, interim pension/family pension/gratuity against a declaration in Form ''N' made by the member of service concerned; but this amount shall not be more that 75 percent of the amount of the pension and gratuity assessed. Similarly, before sanctioning interim family pension and gratuity a declaration in Form ''O' shall be taken from the legal heir of the deceased member of service."
59. Rule 30 provides for investment of pension fund which reads thus:
"30. Investment of Pension Fund- The amounts of pension fund shall be invested in Government securities or in long term deposits/time deposit/and other savings accounts in a Scheduled Bank/Post Office as the Finance Controller, Lucknow Development Authority may deem proper but the balance in the current account shall always be maintained as much as it is sufficient to meet the requirements of monthly pension to be paid to the members of service. Investments have entered in an Investment Register will maintained in Form ''T'".
60. Division Bench of this Court in M.P. Tandon, Allahabad vs. State of U.P., Lucknow and others17, wherein, writ of mandamus was sought by the petitioner therein to make payment of pension and other benefits including gratuity, family pension in accordance with the latest Government order. The State Government had changed the formula for calculation of pension as a result of which the enhanced amount of pension became payable to those Government servants who retired from service on or after March, 1979. The Government order denied the benefits of revised scale of pension to those Government servants who retired on or before the cut of date.
61. The question before the Court was whether the classification of pensioners made by the State Government on the basis of their retirement, before or after the specified dates, is reasonable and whether it has any nexus with the object sought to be achieved. The Division Bench placing reliance on the decision rendered in Deoki Nandan Prasad v. State of Bihar18, and State of Punjab v. Iqbal Singh19 allowed the petition and issued direction to pay the liberalized pension to the petitioner being part and parcel to the common pension scheme.
62. Similarly in the case of FCI Versus Ashis Kumar Ganguly and others20, the Hon'ble Apex Court in paragraph 29 has held as under:
"29. A statutory authority or an administrative authority must exercise its jurisdiction one way or the other so as to enable the employees to take recourse to such remedies as are available to them in law, if they are aggrieved thereby. The question which, however arises for consideration is as to whether having exercised its jurisdiction in favour of a class of employees, a statutory authority can deny a similar relief to another class of employees. In a case of this nature, in our opinion, the writ court was entitled to declare such a stand taken by the statutory authority as discriminatory on arriving at a finding that both the classes are entitled to the benefit of a statutory rule."
63. Recently, in All Manipur Pensioners Association through its Secretary vs. The State of Manipur and others21, the short question posed before the Supreme Court was, whether the State Government would be justified in creating two classes of pensioners, viz., pre-1996 retirees and post-1996 retirees for the purpose of payment of revised pension, salary on the ground of financial constraint. The State Government justified the cut-off date for payment of revised pension solely on the ground of financial constraint. On no other ground, the State tried to justify the classification.
64. The Supreme Court rejecting the cut of date held as follows:
"Even otherwise on merits also, we are of the firm opinion that there is no valid justification to create two classes, viz., one who retired pre-1996 and another who retired post-1996, for the purpose of grant of revised pension, In our view, such a classification has no nexus with the object and purpose of grant of benefit of revised pension. All the pensioners form a one class who are entitled to pension as per the pension rules. Article 14 of the Constitution of India ensures to all equality before law and equal protection of laws. At this juncture it is also necessary to examine the concept of valid classification. A valid classification is truly a valid discrimination. It is true that Article 16 of the Constitution of India permits a valid classification. However, a very classification must be based on a just objective. The result to be achieved by the just objective presupposes the choice of some for differential consideration/treatment over others. A classification to be valid must necessarily satisfy two tests. Firstly, the distinguishing rationale has to be based on a just objective and secondly, the choice of differentiating one set of persons from another, must have a reasonable nexus to the objective sought to be achieved. The test for a valid classification may be summarised as a distinction based on a classification founded on an intelligible differentia, which has a rational relationship with the object sought to be achieved."
65. D.S. Nakara and others v. Union of India22 was followed, wherein, the Supreme Court held that homogeneous class of pensioners cannot be divided arbitrarily for the purpose of upward revised pension. Para-42 of the judgment reads thus:
"42. If it appears to be undisputable, as it does to us that the pensioners for the purpose of pension benefits form a class, would its upward revision permit a homogeneous class to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision, and would such classification be founded on some rational principle?.............. If the State considered it necessary to liberalise the pension scheme, we find no rational principle behind it for granting these benefits only to those who retired subsequent to that date simultaneously denying the same to those who retired prior to that date. If the liberalisation was considered necessary for augmenting social security in old age to government servants then those who, retired earlier cannot be worst off than those who retire later. Therefore, this division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed, it would be discriminatory."
66. It is not being disputed by the respondents that the recommendation of the 6th Pay Commission and 7th Pay Commission in respect of the employees of Development Authorities has been accepted by the State Government and implemented by the Development Authorities pursuant to the Government orders w.e.f. 1 January 2006 and 1 January 2016 respectively. But in the same breath, it is urged that the retired employees are not being paid revised pension pursuant to the Government Orders, however, the employees of the Development Authorities who have retired after 1 January 2006 & 1 January 2016 respectively are being paid revised pension as per the recommendation of the respective Pay Commissions. In other words, the date implementing each of the Pay Commission recommendation has been taken to be the cut of date to deprive the pensioners the benefits of revised pension/family pension. Such an artificial classification is not founded on an intelligible differentia so as to distinguish persons that are grouped together from and others left out. Petitioner, therefore, is entitled to revised family pension based on the formula approved by the State Government in implementing 6th / 7th Pay Commissions.
68. The contention of the petitioner that her family pension should be computed as per the formula applicable to the Government Servants has merit, which cannot be denied in view of the mandatory provisions. The Retirement Benefit Rules, 2011, does not confer upon the Development Authority power and authority to determine its own formula for computation of pension/family pension. The Rule by reference adopts the formula pertaining to pension/family pension applicable to the employees of the State Government. The Government Orders apply to the Development Authority automatically on being issued without any further approval of the Government or resolution of the Development Authority.
69. In view thereof, the Government Order dated 8 December 2008 and subsequent clarificatory Government Orders until 5 July 2016 would apply to the petitioner in computation of family pension. The tabular chart, made part of the Government Orders dealing with the computation and revision would apply in totality without modification. It is not in dispute that the ex-employee retired on the last drawn salary at Rs. 16300 in pay-scale 14300-18300, which as per the Government Order dated 8 December 2008, the corresponding pay-band of the above pay-scale is at 37400-67000 and grade-pay at 8700. Further, para 4(1) of the Government Order clearly provides that while computing pension the amount so calculated, in no case, shall be less than 50% of the minimum pay in the pay-band plus the grade-pay corresponding to the pre-revised pay-scale from which the petitioner retired. The pro-rata principle of deducting pension on the length of service was done away with. According to the petitioner, as per the formula stipulated in the Government Orders, the minimum revised pension of her husband would be at Rs. 23050/- and minimum revised family pension at Rs. 13830/-.
70. The petitioner finally has sought quashing of Clause (6) of Government Order dated 5 July 2016, insofar it denies arrears of revised pension w.e.f. 1 January 2006, to the ex-employee (husband). It is not the case of the petitioner that the Government Order denying arrears of revised pension is being paid to the Government Servants. It is not a case of discrimination and it is always open for the State Government to decide uniformly for the Government Servants and other employees of the Local Bodies and Development Authorities the date from which the Government Order would apply. In case, the contention and relief sought by the petitioner is accepted, then in that event the Government Servants would be discriminated against. Further, Retirement Benefit Rules, 2011, provides that the Government Orders pertaining to pension and family pension applicable to Government Servants would apply to the employees of the Development Authorities. In that event, petitioner cannot claim anything beyond that what is conferred by the Government Order. In view thereof, the plea for arrears of revised pension w.e.f. 1 January 2006 is untenable, accordingly, rejected.
71. It is not being disputed by the respondent-Development Authority that the retiral dues was paid to the petitioner in two installments at a belated stage after four years from the due date. That apart, petitioner has been subjected to harassment at the hands of the fifth respondent by sending defective and wrong PPO and communication to the bank which deprived her of her monthly family pension for considerable long period. The PPO was not rectified despite knowledge and information to the fifth respondent. In the circumstances, petitioner is entitled to interest on delayed payment.
72. In D.D. Tewari v. Uttar Haryana Bijli Vitran Nigam Ltd.23, Supreme Court held that the pension and gratuity are not bounty to be distributed by the Government to its employees on their retirement, but are valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof is to be dealt with the penalty of payment of interest. The Court directed payment of interest @ 9% on the delayed payment within stipulated period failing which interest thereon @ 18% per annum would need to be paid.
73. Having due regard to the facts and law, the writ petition is allowed subject to the following orders:
i.) the respondents are directed to compute the pension of the ex-employee and family pension of the petitioner strictly, in accordance with the formula set forth in the Government Orders made applicable to Government Servants implementing recommendations of 6th and 7th Pay Commissions;
ii.) on computation/determination as per (i) above, petitioner shall be entitled to arrears of pension/family pension as provided for in the Government Orders;
iii.) petitioner shall be entitled to interest @ 8% per annum on the delayed payment of post retiral dues from the due date;
iv.) arrears of pension/family pension and the interest payable on the delayed payment of retiral dues shall be computed and paid to the petitioner within two months, from the date of service of certified copy of the order, failing which, petitioner shall be entitled to interest @ 12% on the entire amount from the due date;
v.) the prayer for quashing Clause (6) of Government Order dated 5 July 2016 is rejected;
74. Cost of litigation assessed at Rs. 50,000/- to be paid to the petitioner by the third respondent, Allahabad Development Authority.
Order date: 23/10/2019 S.Prakash/Mukesh Kr.