Central Administrative Tribunal - Delhi
Rajesh Goyal vs M/O Defence on 21 August, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
ORIGINAL APPLICATION NO.170/00291/2015
ALONGWITH
MISCELLANEOUS APPLICATION NO.210/2015
DATED THIS THE 21st DAY OF AUGUST, 2017
HON'BLE DR.K.B.SURESH ...MEMBER(J)
HON'BLE SHRI K.N.SRIVASTAVA ...MEMBER(A)
1. Rajesh Goyal,
(Retired Scientist "G" of DRDO)
S/o Sh. P.M.Goyal,
Aged about 61 years
R/o 55-B, Pocket 'B',
Gangotri Enclave, Alaknanda,
New Delhi - 110 019.
2. Awadesh Kumar Shukla,
(Retired Scientist "G" of DRDO),
S/o Late Shri R.P.Shukla,
Aged about 60 years,
R/o 12, Kanan Kunj, Sahastradhara Road,
Dehradun - 248001.
3. Virpal Singh
(Retired Scientist "G" of DRDO)
S/o Late Shri Dhani Ram Singh
Aged about 60 years,
R/o H.No.8, Siddharth Vihar,
Kandoli, Near Rajpur Road,
Dehradun-248001.
4. V.R.K.R. Deshmukh,
(Retired Scientist "G" of DRDO)
S/o Late Shri K.Y.Deshmukh,
Aged about 60 years,
R/o H.No.250, Doon Vihar,
Rajpur Road, Dehradun.
5. Dr.Ganga Prasad Rai,
(Retired Scientist "G" of DRDO)
S/o Late Shri Jagdamba Rai,
2 OA No. 291/2015
Aged about 62 years,
R/o 47, P.G.Enclave, Anupum Nagar Extn.,
City Centre, Gwalior-474011, M.P.
6. H.V.Srinivasarao,
(Retired Scientist "G" of DRDO)
S/o Late Shri H.N.Venkataramaiah,
Aged about 64 years,
R/o 005, Celestial Homes, 1st main,
16B, Cross Pai Layout,
Bangalore - 560 016.
7. Satish Kumar Mehta,
(Retired Scientist "G" of DRDO)
S/o Late Shri Ram Kishan Mehta
Aged about 61 years,
R/o A-119, Priyadarshini Vihar,
Near Laxmi Nagar, Delhi-110 092. ...Applicants
(By Advocate Shri Gyan Prakash)
Vs.
1. Union of India through
The Secretary, Ministry of Defence,
South Block, New Delhi.
2. Secretary, Department of Defence Research &
Development, M/o Defence,
Govt. of India, DRDO Bhawan, Rajaji Marg,
New Delhi-110005.
3. Director General, Department of Defence Research &
Development, M/o Defence,
Govt. of India, DRDO Bhawan, Rajaji Marg,
New Delhi-110005.
-Respondents
(By Additioanl Central Government Standing Counsel Shri V.S.R. Krishna
for Respondents)
3 OA No. 291/2015
ORDER
HON'BLE DR.K.B.SURESH... ....MEMBER(J) It is correct to note that this matter had engaged the attention of several benches of the Tribunal, several High Court benches and atleast twice engaged the attention of Hon'ble Apex Court. It is correct to note that in all these cases the Presidential sanction for special pay was given a respectful compliance. It is also correct to note that even the author of this judgment had issued orders favouring Scientist. These orders were upheld by the High Court of Karnataka and later by the Hon'ble Apex Court as well. But when the matter was brought to the notice of the Tribunal once again, on a different parameters it was found necessary to examine it. We have now carefully gone through the grounds raised by the Union of India before the Hon'ble High Court of Delhi which apparently the Hon'ble High Court of Delhi was unable to accept. In view of the fact that in the course of a spectrum it was that once special pay was granted it should not be taken away. We are also of the view that special sanction given by the Hon'ble President cannot be likely to be interfered with, whether it be right or wrong. But then Union of India through their Ministry of Finance explained the matters much more succinctly on a broader canvass before we explained the matter any further. We would like to quote from the order we had passed in OA No.1456/2014 dated
28..09.2015 of Bangalore Bench.
4 OA No. 291/2015The word "Satyameva Jeyathe" epitomises our Constitutional Philosophy. It is much more than a mere reflection of truth in human relation or fair governance. It postulates that every endeavour of State (which includes all the people - as a greater term) shall be to promote it.
This matter in a nutshell is about encouraging Scientific inventiveness and creative logic. The Presidential Order which brought about a significant interregnum change in the pay levels of Scientists and Engineers of research organisation have not brought about any discrimination in its wake opposing Article 14, as they form a separate classification and the intentions behind such a move is generally the progress of the nation. It has bestowed, not on whims or fancies, but after much deliberation by the Cabinet of India. It seems to be a conscious decision taken after the Hon'ble Apex Court in MUMBAI KAMGAR SABHA VS. ABDULBHAN reported in AIR 1976 SC 1455 and in MOHAN VS. UNION OF INDIA reported in 1992 (supplement) (1) SCC 594 stipulate on Article 51-A of the Constitution of India to say that it shall be a guiding star to make equivocal unequivocals. Article 51-A (J) even though is now not capable enforcement is of particular interest. Thus the fear of the Government that it may open a Pandora's box as everyone even remotely similar may seek similar benefit is unfounded. The Hon'ble Apex Court judgments in RURAL LITIGATION AND ENTITLEMENT KENDRA VS. STATE OF UTTAR PRADESH reported in AIR 1987 SC 2426 and BANVASI SEVA ASHRAM VS. STATE OF UTTAR PRADESH reported in AIR 1987 SC 374 is of some significance in understanding the nuances of the situation.
2. The crux of the issue is only that whether a special pay will become part of the pay. The respondents submits before us that in view of the Hon'ble Apex Court order, which the learned Counsel for respondents ShriM.V.Rao place before us, i.e. one judgment of Hon'ble Apex Court which according to him is relevant had not been considered in any of the connected judgment whether it be of Hon'ble Apex Court or any High Court at any point of time. It is the case of GOVERNMENT OF INDIA Vs. A .SYED reported in 1997 (7) SCC 24. The crux of the para-5 and 8 of the judgment, it is pointed 5 OA No. 291/2015 out that in normal parlance that special pay cannot be held to have the attributes of pay. The said Rule 9 Sub-clause (21)(a)(1) clearly includes the special pay and personal pay granted to the Government servants. In view of the special clarification issued therefore the question was whether incentive served as special pay or personal pay. But then apparently in this case following the Cabinet discussion which followed a note from Ministry of Defence certain proposals were accepted. It seems this pay was granted in lieu of a higher pay scale which was in contemplation for Scientists. That being so even though it is called as special pay or special incentives to the pay, there is a clear distinction between what is stated in this judgment and other Hon'ble Apex Court and High Court judgments, as well as judgments in Tribunals which is followed Apex Court dicta all over India. It is submitted by both sides that in all other cases the same view had been followed since it is an often treaded path. The Kerala High Court has affirmed this view and the SLP was dismissed by the Hon'ble Apex Court. Therefore this is final.
3. The Scientists 'C' to 'F' in the Defence Research & Development Organisation (DRDO, in short) were granted vide reference dated 03.02.1999 of the Department of Defence Research & Development, Ministry of Defence, Government of India (Annexure A2 = Annexure R1) the following incentives:
With effect from Jan 01, 1996 (I) Special Pay of Rs.2,000p.m to Scientists in the pay scale of Rs.10,400 - 22,400, in lieu of a separate higher pay scale and that too after peer review.
(ii) Two additional increments to Scientists (Recruitees/Promotees) in the pay -scale of Rs.10,000 - 15,200, Rs.12,000 - 16,500, Rs.14,300 - 18,300m Rs,16,400 - 20,000 after their normal pay fixation.
From financial year 1998-99 onwards Professional Update Allowance of Rs.5000 per annum to all Scientists.
Subsequently it was clarified by the Chief Controller of research & Development (M) addressed to the Jt.CGDA (Systems), Office of 6 OA No. 291/2015 CGDA vide his letter dated 14/15.05.1999 (Annexure A3 = Annexure R2) as follows:
(I) The additional increments for Scientists 'C' to 'F' are to be treated separately and not to be merged with the basic pay fixed under the normal rules.
(ii) On recruitment/each promotion, the pay will be fixed under normal rules without taking into account the additional increments. After each normal promotion, two additional increments will be granted each time in the respective pay scale.
(iii) Since the additional increments are not to be merged with basic pay and will have to be treated separately and distinctly, there is no need to revise the pay fixed already fixed on or after 01.01.1996.
The letter further said:
A proposal to treat the additional increments as part of 'Pay' as defined under FR 9(21) for all purposes like DA, HRA, Pension etc. except for pay fixation, is being taken up with Ministry of Finance. Further instructions in this regard will be issued after obtaining the approval of the Ministry of Finance.
In regard to Special Pay, the letter said as follows:
(I).............
(ii) The pay is in lieu of a separate higher pay scale.
Therefore, it will be counted as pay for the purpose of pay fixation on promotion, to the next higher grade, if drawn for three years in terms of the Ministry of Finance OM No.6(1) E-III/B(65) dt.25.2.65.
A proposal to treat the special pay as part of "Pay" as defined under FR 9(21) for all purposes is being taken up separately with the Ministry of Finance.
Further instructions in this regard will be issued after obtaining the approval of Ministry of Finance.
The Department of Expenditure, Ministry of Finance, GOI vide Note dated 15/19.09.2000 (Annexure R5) gave its views as follows:
"(i) The two additional increments to Scientists/Engineers 7 OA No. 291/2015 up to the level of Rs.16400 - 20400 are to be termed as a separate element as done by the DRDO and therefore it may not be possible to agree to these increments being counted as pay for all purposes.
(ii) As the special pay of Rs.2000 was given as an incentive personal to all Scientists/Engineers in the scale of Rs.18,400
- 22,400 as on 01.01.1996, it would be difficult for this Department to treat this as pay for all purposes because based on the 5th CPC recommendations, all Special Pay have been converted to Special Allowance and any deviation would generate demand from all other categories where special Allowance has been granted. However, this Special Pay could be granted not only to those who are in position as on 01.01.1996 but also subsequently based on selection through peer review.
Incidentally, DOP&T made certain alternative suggestions but the same were not found suitable for dealing with the specific proposals made by the Ministry of Defence and would have needed fresh proposals, its examination and also Cabinet's approval".
4. As seen from the copy of OM dated July 11, 2003, it was clarified vide OM dated 22.08.1999 of the Department of Space that the special pay will not be treated as a part of pay for purposes like DA, HRA, Pension etc. This was challenged in OA No.1153 of 2002, wherein the Principal Bench , New Delhi while partly allowing the application quashed para 1 © of the clarificatory OM dated 12.08.2009 regarding non-inclusion of the special pay as part of pay for purposes of pension, and directed that the special pay of Rs.2000 per month to Scientists/Engineers H in DOS/ISRO w.e.f 01.01.1996 be treated as part of pay for the purpose of pensionary benefits.
5. Accordingly, Para 1(1) © of the OM of DOS dated 12.08.1999 was modified as follows:
The Special pay will not be treated as part of pay for the purposes of DA and HRA, but the same may be treated as part of pay for the purpose of pensionary benefits w.e.f.01.01.1996.8 OA No. 291/2015
6. The Applicant in the instant OAs have submitted that they were all Scientists in categories 'C', 'D', 'E' and 'F' in the DRDO and retired on reaching the age of superannuation or took voluntary retirement.
They were extended the benefit of two additional increments as is evident from the communication dated 03.02.1999 of the Under Secretary, GOI to the Director General, DRDO, whereby apart from the two additional increments, the benefit of special pay in lieu of separate higher pay-scale has been extended. This was done after the Government examined the subject regarding providing incentives to Scientists in the DRDO, keeping in view the role played by them in the development of high technology systems for strategic applications and after taking into consideration all the relevant factors and to retain, attract, inspire and motivate Scientists to give their best contribution, the President was pleased to sanction the two additional increments to Scientists (recruitees/promotees) in the pay scale of Rs.10,000 - 15,200, Rs.12,000 - 16,500 Rs.14,300 - 18300 & Rs.16400 to Rs.20,000/- after their normal pay fixation. The above benefits was extended w.e.f. January , 01 1996. Subsequently, vide communication dated 14.05.1999, it was indicated that additional increments were to be treated separately and not to be merged with basic pay fixed under normal rules. While all the Applicants were given the benefit of two additional increments w.e.f. 01.01.1996 till retirement, however, the two additional increments were not taken into consideration in finalizing their pension. The clarification dated 14.05.1999 issued by the Ministry has been assailed by the Applicant as being without authority of law. The Ministry of Finance could not alter/modify the order/sanction issued by the President of India. The additional increments ought to be treated as part of 'Pay' as defined under rule 9(21)(a) of the Fundamental Rules (General Rules) and accordingly, DA, HRA, CCA and other benefits have to be revised with effect from 01.01.1996 and so also Pension re-fixed. Similarly, the benefit of professional update allowance (vide letters dated 03.02.1999 and 14.05.1999) which was given to all the Applicants with effect from 01.04.2000 has to be extended with effect from 01.04.1999, 9 OA No. 291/2015 itself. Similar reliefs had been granted by the Hon'ble High Court of Kerala which was upheld by the Hon'ble Supreme Court. Following the orders of the various Benches of this Tribunal, Respondents had issued an Official Memorandum on 11.07.2003 (Annexure-A/5 to the effect that the "Special.Pay" may be treated as part of pay for the purpose of pensionary benefits with effect from 01.01.1996 itself. Also vide letter dated 09.02.2010 (Annexure-A/6), it was directed that the benefit of additional increments for the purpose of pensionary benefits for which some of them submitted representations (Annexures-A/7 & A/8). The object and purpose of extending the benefit of Special Pay and Additional Increments being one and the same, the Applicants were entitled for the benefit of counting the two additional increments for the purpose of their pensionary benefits also, like those extended to the grantees of "Special Pay", such as Scientists-'G' and above.
7. The Applicants have stated that when earlier the Scientists of ISRO, who were in the similar grades as that of the Applicants moved this Tribunal praying for inclusion of the additional increments for the purpose of pensionary benefits, the Ernakulam Bench of the Central Administrative Tribunal declined to grant the relief sought for by the Applicants, but the Hon'ble High Court of Kerala at Ernakulam in WP No.293538 of 2004, etc. allowed on 18.01.2007 the writ petitions, holding that additional increments sanctioned shall be counted as "Pay" to attract all further payments including pension. When the said order of the Hon'ble High Court of Kerala was challenged by ISRO in SLP No.555-560 of 2008, the Hon'ble Supreme Court as per order dated 04.04.2011 dismissed the Special Leave Petitions. Various Benches of the Tribunal and High Courts have passed orders (upheld by the Hon'ble Apex Court) to the effect that pension has to be fixed on the basis of pay including Special Pay/Additional increments. The said matter has already been settled as per the order of the Hon'ble High Court of Kerala and upheld by the Hon'ble Apex Court.
8. The Appplicant has stated that the word "Pay" has been defined under FR 9(21)(a) as follows:
10 OA No. 291/2015"9(21)(a) - Pay means the amount drawn monthly by a Government Servant as -
(i) The pay, other than special pay or pay granted in view of the personal qualifications , which has been sanctioned for a post held by him substantively or in an officiating capacity, or to which he is entitled by reason of his position in a cadre;
and
(ii) Overseas pay, special pay and personal pay; and
(iii) Any other emoluments which may be specially classed as pay by the President"
The word "emoluments" has been defined in Rule 33 of the Central Civil Services Pension Rules, as follows:
33. Emoluments - The expression 'emoluments' means basic pay as defined in Rule 9(21)(a) of the Fundamental Rules, which a Government Servant was receiving immediately before his retirement or on the date of his death; and will also include non-practicing allowance granted to Medical Officer in lieu of private practice"
9. In their reply, the Respondents have submitted that the reliefs sought by the Applicants were highly belated and barred by limitation and on this ground alone, the OAs are liable to be dismissed. While the Scientists 'C' to 'F' were granted two additional increments over and above their normal pay, vide Government of India's letter dated 03.02.1999 of the DRDO, Ministry of Defence in consultation with Integrated Finance (R&D) regarding treatment of the two additional increments granted to Scientists 'C' to 'F' as follows:
(I)Two additional Increments for Scientist 'C' to Scientist 'F' (Recruitees/Promotees)
i) The additional increments are to be treated separately and not to be merged with the basic pay fixed under normal 11 OA No. 291/2015 rules.
ii) On recruitment/ each promotion, the pay shall be fixed will be fixed under normal rules without taking into account the additional increments. After such normal pay fixation, two additional increments will be granted each time in the respective pay scale.
iii) Since the additional increments are not to be merged with basic pay and will have to be treated separately and distinctly, there is no need to revise the pay already fixed on or after 1.1.96.
A proposal to treat the additional increments as part of "Pay" as defined under FR 9(21) for all purposes like DA, HRA, Pension etc. except for pay fixation, is being taken-up with Ministry of Finance. Further instructions in this regard will be issued after obtaining the approval of Ministry of Finance.
As per Rule 33 of CCS (Pension Rules) 1972, the expression 'emoluments' means basic pay as defined in Rule 9(21)(a)(i) of Fundamental Rules, which a government servant was receiving immediately before his retirement and will also include non- practicing allowance granted to medical officer in lieu of private practice and stagnation increment. Therefore, it is evident from the definition of emoluments that the two increments granted to Scientists 'C' to 'F' do not form part of emoluments for pensionary benefits .The extract of FR 9 (21)(a)(a)(i) has been marked as Annexure-R/4. Notwithstanding the above position, a proposal was sent to Department of Expenditure, Ministry of Finance for inclusion of these two increments as part of pay for purpose of DA, HRA, pension etc. The Government did not agree to the proposal. Even the merger of special pay granted to Scientists 'G' in lieu of higher pay scale has not been concurred (by the Department of Expenditure, Ministry of Finance .The Rule position is that allowances, incentives and special pay which are granted for specific 12 OA No. 291/2015 reasons to a particular individual, class or group are not to be treated as part of pay. The matters of policy governing the service conditions of employees lie in the exclusive domain of the Government and the Courts do not interfere with such policy matters unless these are arbitrary or discriminatory - this position has been upheld by the Apex Court in its various judgments. But it appears in this case that the Presidential order had an objective in mind, i.e. a special benefit to be granted to a group of people in lieu of a special scale of pay. The Presidential order must be understood in this open perspective. It is to be noted that Scientists forum adherent classification and therefore it was found suitable to have a structure of pay slightly better for the purpose of attracting better minds to its fold. The correspondence, except at the last stage seems to be indicative that a separate pay structure was in the thought process and this was only an interregnum arrangement. The applicant thus claims an estoppel against this denial and is illuminative of the various views and hues of discussion in this regard.
10. The Respondents have submitted that the judgment cited by the Applicants regarding counting of special pay for pension has no bearing on the relief claimed regarding counting of additional increments for pensionary benefits, as the special pay and two additional increments granted to Scientists were two distinct elements. Whereas the Tribunal had allowed counting of special pay for pensionary benefits on the ground that the special pay was granted in lieu of a separate higher pay scale, the same does not hold good in respect of additional increments. Government had not agreed for merger of additional increments as part of 'Pay' under FR 9(21)(a)(i) for the purpose of DA, HRA, pension etc. (Annexure-R/3 = Annexure A/2). As such, the additional increments granted to Scientist 'C' to 'F' as an incentive vide GOI letter dated 03.02.1999 continue to be treated separately and are not merged with basic pay and hence, the same does not count for the purpose of DA, HRA, Pension, etc. The judgment date 18.01.2007 of the Hon'ble High Court of Kerala at Ernakulam in WP No.29358, 29710 and 31525 of 2004 cited by the Applicants in support of their case, was not applicable to the instant case as the same pertained to the 13 OA No. 291/2015 Department of Space. The said judgment was contrary to the provisions of Rule 33 of CCS (pension) Rules. The additional increments sanctioned to Scientists '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. But at the same time an issue arises an employment was apparently canvassed on the basis of special benefits and therefore, the claim of the Government are hit by 2009 of promissory estoppel and also the legitimate expectation of the Scientists.
11 Heard the learned counsels for the Applicant and the Respondents and perused the entire record. During the hearing of the case, the learned counsel for the Respondents cited the judgment of the Hon'ble Supreme Court in Govt.of A.P. &Ors vs. Syed Yousuddin Ahmed reported in (1997) 7 SCC 24 and asserted that this judgment had not been taken cognizance of by the Courts - Kerala High Court as well as the different Benches of the Central Administrative Tribunal as well as the Hon'ble Apex Court in allowing the reliefs sought by the petitioners in the cases which came up before them. But on going through this judgment, it appears that it may not be applicable in the present case in as much as an incentives given as personal pay would tantamount to emoluments and be calculated for pension and the affect of power under Article 309 to create rules to the contrary. But in the instant case a Presidential order once made cannot set aside by an executive notification is the prime issue. The sanctity of the Presidential order and the level of discussion and the intent of such proposal cannot be defeated by pointing out that others may also demand similar exercises and therefore laws of parity will come in the way. But as pointed out earlier, Scientists and Research Engineers form a separate classification.
12. It is seen that vide letter dated 03.02.1999 of the Department of Defence Research & Development, Ministry of Defence, Government of India, the Scientists 'C' to 'F' in the DRDO were granted with effect from Jan 01, 1996 (i) Special Pay of Rs.2,000 p.m in the pay scale of Rs.10,400 - 22,400, in lieu of a 14 OA No. 291/2015 separate higher pay scale, after peer review, (ii) 2 additional increments to Scientists (Recruitees/Promotees) in the pay-scales of Rs.10,000 - 15,200, Rs.12,000 - 16,500, Rs.14,300 - 18,300, Rs.16,400 - 20,000] after their normal pay fixation, and (iii) from financial year 1998-99 onwards, (iii) Professional Update Allowance of Rs.5000 per annum to all Scientists. This OM /letter had the concurrence of integrated Finance. It was clarified vide letter dated 14/15.05.2009 that while the additional increments for Scientists 'C' to 'F' were to be treated separately and not to be merged with the basic pay fixed under the normal rules and that a proposal to treat the additional increments as part of 'Pay' as defined under FR 9(21) for all purposes like DA, HRA, Pension etc. except for pay fixation, was being taken up with Ministry of Finance, in regard to Special Pay, the letter said that in as much as the special pay granted was in lieu of a separate higher pay scale, it would be counted as pay for the purpose of pay fixation on promotion, to the next higher grade, if drawn for three years in terms of the Ministry of Finance OM No.6(1) E-III/B(65) dt.25.2.65 and that a proposal to treat the special pay as part of "Pay" as defined under FR 9(21) for all purposes was being taken up separately with the Ministry of Finance, GOI vide Note dated 15/18.09.2000 was that the two additional increments to Scientists/Engineers up to the level of Rs.16400 - 20400 were to be termed as a separate element as done by the DRDO and therefore it might not be possible to agree to these increments being counted as pay for Rs.2000 was given as an incentive personal to the Scientists/Engineers in the scale of Rs.18,400 - 22,400 as on 01.01.1996, it would be difficult for the Department of Expenditure, Ministry of Finance to treat this as pay for all purposes because based on the 5th CPC recommendations, all Special Pay have been converted to Special Allowance and any deviation would generate demand from all other categories where Special Allowance has been granted. Incidentally, DOP&T made certain alternative suggestions but the same were not found suitable for dealing with the specific proposals made by the Ministry of Defence and would have needed fresh proposals, its examination and also Cabinet's approval"
15 OA No. 291/201513. It is necessary to refer to the Rules position. Rule 33 of the CCS (Pension) Rules, 1972 defines 'emoluments' as follows:
33. Emoluments The expression 'emoluments' means basic pay as defined in Rule 9(21)(a)(i) of the Fundamental Rules, which a Government servant was receiving immediately before his retirement or on the date of his death; and will also include non-practicing allowance granted to medical officer in lieu of private practice.
'Pay' has been defined in FR 9(21)(a)(i) as follows:
9(21)(a) - Pay means the amount drawn monthly by a Government Servant as -
(i) the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity, or to which he is entitled by reason of his position in a cadre; and
(ii) overseas pay, special pay and personal pay; and
(iii) any other emoluments which may be specially classed as pay by the President.
In the case of Scientists of ISRO, the clarification issued by the Under Secretary in Department of Space to the effect that the additional increments will not be taken into account for fixation of pay on promotion in respect of grades of Scientists/Engineers SD, SE. SF and SG was challenged in OAs Nos.808,843,1080 of 2001 which were dismissed by the Ernakulam Bench of the Tribunal. However, Writ Petitions Nos.29358., 29710 & 31525 of 2004 challenging this order were allowed by the Hon'ble High Court of Kerala on 18.01.2007 and accordingly, the additional increments sanctioned in terms of clause
(ii) in para 2 of the O.M./letter dated 03.02.1999 shall be counted as pay for the purpose of pension and that Professional Update 16 OA No. 291/2015 Allowance payable in terms of order dated 03.02.1999 shall be payable from 1998-99 falling due on 01.04.1999 onwards (copy of order of Hon'ble High Court in Annexure-A/9 of the OAs). The SLP (Civil) Nos.555-560/2008 filed in the Hon'ble Supreme Court were dismissed vide order dated 04.04.2011 (Annexure-A/10). However, as seen from the order of this Tribunal (Bangalore Bench) in OA No.86 of 2013, K.B.Venkataram vs. Union of India etc., decided recently in regard to Special Pay that when the Department approached the Hon'ble Supreme Court in SLP No.4842 of 2009 against the order of the Hyderabad Bench of this Tribunal dated 29.03.2007 in OA No.184 of 2006 which was upheld by the Hon'ble High Court of Andhra Pradesh in WP No.267 of 2008, the Hon'ble Supreme Court while dismissing the SLP left the question of law open. Some other OAs filed in the Bangalore Bench of the Central Administrative Tribunal on the issue of extending the benefit of adding special pay/additional increments to pay for the purpose of determining pension have been allowed on the basis of the aforesaid judgment of the Hon'ble Kerala High Court whereas the matter was agitated before the Hon'ble Apex Court which confirmed it.
14. It appears that when the matter was adjudicated by the Hon'ble Kerala High Court and the various Benches of this Tribunal, the judgment of the Hon'ble Supreme Court in Govt. of A.P. &Ors vs. Syed Yousuddin Ahmed was not brought to the notice of the Courts. In that case, the Hon'ble Supreme Court had held in (1997) 7 SCC 24 as follows (in para 8):
"It may be stated here that for the purpose of Rule 31 of the Pension Rules "emoluments" of government servant would mean the pay which he is drawing as defined in Rule 9(21)(a)(i) of the Fundamental Rules. The said Rule 9(21)(a)(i) clearly excludes the "special pay" or "personal pay" granted to a government servant in view of his personal qualifications or otherwise from the purview of the expression "pay" and, therefore, whether the "incentive award" is held either a "special pay" or "personal pay" the same would not form part of "pay" under Rule 9(1)(a)(i) of 17 OA No. 291/2015 the Fundamental Rules for being taken into account for computation of pension of the respondent"
15. But the respondents pointed out the intentions of the Government of India, as explained by the respondents is that to provide "A package of incentives for attracting and retaining Scientists and Engineers in DAE, DRDO and DOS". Therefore the notion of a pay package in lieu of a special pay scale is important. The Government cannot offer some thing, get work done on the basis of this offer and later to say that the offer is to be understood differently. A pay package, in whatever name it is mentioned has implications up to and even after retirement. The State cannot approbate and reprobate at the same time..., although in the case of special pay, the original OM/letter dated 03.02.1999 itself provided that the Special Pay would be in lieu of a separate higher pay scale, there was no such mention in regard to additional increments and in fact it was made very clear in a separate communication of 14 May 1999 that the additional increments for Scientists 'C' to 'F' are to be treated separately and not to be merged with the basic pay fixed under the normal rules, that on recruitments/ each promotion, the pay will be fixed under normal rules without taking into account the additional increments, that after each normal promotion, two additional increments will be granted each time in the respective pay scale and that since the additional increments are not to be merged with basic pay and will have to be treated separately and distinctly, there was no need to revise the pay fixed already fixed on or after 01.01.1996. The communication further said that a proposal to treat the additional increments as part of 'Pay' as defined under FR 9(21) for all purposes like DA, HRA, Pension etc. except for pay fixation, was being taken up with Ministry of Finance and that further instructions in this regard would be issued after obtaining the approval of the Ministry of Finance. The contention of the Applicants ;that the object and purpose of extending the benefit of Special Pay and Additional Increments being one and the same, the Applicants were entitled for the benefit of counting the two additional increments for the purpose of their pensionary benefits 18 OA No. 291/2015 also, like those extended to the grantees of "Special Pay". The Ministry of Finance did not agree to the above proposal as already indicated in the earlier part of this order. But then the Ministry of Finance cannot over ride the spirit and soul of a Cabinet decision.
a) It may be noted in ASSOCIATION OF INDUSTRIAL ELECTRICITY USERS vs. STATE OF AP reported in AIR 2002 SC 1361 the Hon'ble Apex Court held that benefits granted through a policy decision can be counter manned by another policy decision only if the earlier decision is arbitrary and ex facie bad in law and considering greater public interest. The Finance Ministry has not conducted any study on the viability of the encouragement to be given to the Scientists and the greater public interest involved in it.
b) In COOPER vs. UNION OF INDIA reported in AIR 1970 SC 564 the Hon'ble Apex Court has held that President's order can be set aside only on grounds of malafide. The case STATE OF RAJASTHAN VS. UNION OF INDIA reported in AIR SC 1361 is also significant in this regard. The Presidential order was issued after due study even though the consequences and effects of it is yet to be analysed.
c) As is pointed out in SITARAM SUGAR VS. UNION OF INDIA reported in AIR 1990 SC 1277 any act done by an authority became ultra vires only when be abuses his power. Since the provision for encouragement is made after due reasons no abuse can be attributed to the order of the President. Therefore the Apex Court judgment in Syed's case being of a different nature is not applicable to the present case, even though a process of continuing examination may be held to be available to the respondents. In ASHOK KUMAR YADAV vs. STATE OF HARYANA reported in 1985 (4) SCC 417, the Hon'ble Apex Court held that, as a rule against bias, which will vitiate any proceeding, justice must not only be done but also must appear to be done. Even though the State is bound by the promise it made through the Presidential order, it has a duty to examine prospectively whether the elements of motivationwere successful in greater national interest by conducting a sort of a 19 OA No. 291/2015 post-mortem on their working. As a methodology of prevention against bias, as is stated in the Hon'ble Apex Court ruling in L & T LIMITED VS FERTILIZER AND CHEMICALS reported in AIR 2008 SC 465 reasonable apprehension in the mind of a reasonable man must be the yard stick of measurement. Thus Bureaucratic Straight Jackets, Accounting cost benefit ratios, and San analysis by an outsider group seem to be Scientists own internal analysis will be faulty and opposed to principle against bias. An analysis by an outsider group seem to be an only solution.
d) In CHAIRMAN-CUM-MANAGING DIRECTOR VS MULSUL KUMAR reported in AIR 2010 SC 75 , the Hon'ble Apex Court examined the question of proportionality in administrative discretion. The principles of Wednesbury reasonableness is, it was felt the key. The Presidential order is thus a reasonable order with a reasonable objective and issued after proper deliberations. The later negation therefore suffers from lack of application of mind as unequals are sought to be brought into an arena of equivalence. But the right of re examination on proper grounds still survives to the Government.
e) As held by the Hon'ble Apex Court in FOOD CORPORATION OF INDIA VS. KAMADHENU CATTLE FEED INDUSTRIES reported in 1993 (1) SCC 71, legitimate expectations has been assimilated in the rule of law. When the Presidential order was concluded, it would have prevailed on many a Scientists and prevented them from seeking greener pastures. Thereafter the State can not turn back and negative such expectation.
Even policy decision are barred by promissory estoppel in case such promise has given rise to specific benefits for the promisor, in this case the Government.
In PUNJAB COMMUNICATIONS LIMITED VS. UNION OF INDIA reported in 1999 (4) SCC 727, the Hon'ble Apex Court had held that for a Policy decision to break a legitimate expectation, it should be able to be tested at Wednesburry reasonableness. But in this case, it 20 OA No. 291/2015 is not available. In addition, the benefits to the promisor has become concretized. The only available nexus could be only a re assessment of the situation in greater public interest.
The Hon'ble Apex Court in STATE OF MAHARASHTRA VS.
PRABHU reported in 1994 (2) SCC 481 and ANDHRA PRADESH STATE FINANCIAL CORPORATION VS. MSGAR RE-ROLLING MILLS reported in AIR 1994 SC 2151 has emphasised that All adjudicatory bodies must promote good faith and prevent law from crafty invasion. Courts must maintain social balance in favour of social interest and public good. Therefore a dynamic approach is needed.
Therefore while upholding the creative encouragement benefits, we must also direct reexaminations of the parametres, which will be necessary to free them from the taint of arbitrary conferment and irrational continuance of largesse which will be against public interest.
g) The Hon'ble Apex Court had held that even though public interest litigation is not available in service jurisprudence normally, when a writ of quo warranto is sought, it is available, as stated in HARILAL VS. SABODAR reported in AIR 2010 SC 3515. Therefore the issue of right person getting the right benefit is in greater public interest. Since the Government had not studied it till now, at least now an assessment and analysis is called for.
h) Since all these matters are primarily in the realm of administrative executive alone, as rightly held by Hon'ble Apex Court in HARVINDER SINGH VS. STATE OF PUNJAB reported in AIR 1979 SC 321 "The Parliamentary control over delegated legislation should be a living continuity as a Constitutional necessity". So it therefore couples with the necessity of excluding Bureaucratic tangles from the field of creative inventiveness and cost/benefit accounting processes from permeating and destroying Scientific initiatives and of course excluding self interest participation of Scientists themselves. A common man's reassessment by a specific assessment process would be required before the Government can 21 OA No. 291/2015 decide on a policy of discontinuance. But then, even if the Government decides to continue the present terrafirma, for any reasons, still it will incumbent for it to a re analyse the matric as State largesse cannot be doled out indiscriminately unless, studies indicate enhancement of quantum and quality by such special bestowment. This is particularly so as the Hon'ble Apex Court has held in HARJINDER SINGH VS PUNJAB STATE WARE HOUSING CONFEDERATION reported in AIR 2010 SC 1116 that Courts must interpret issues in the light of philosophy reflected in the Directive Principles of State Policy and especially Article 39 (b), 39 (c) of the Constitution of India. Therefore, a reexamination on the basis of achieved consequences is eminently called for.
16. But before parting with the issue we will be guilty of undermining social perspectives of adjudication unless we try to understand the objection of the Finance Ministry in its correct perspective. The equivalence to be given to all similarly placed is one way of expressing reservation. But the root cause appears to be more involved, The Scientists and Engineers of research organisation, form a separate classification. There is ample justification for Cabinet approval for this encouragement. But taking in the objection made by the Finance Ministry in all its implication, it appears to us that the Scientists must themselves hold an introspection other than ISRO, (which is marked by controversies - Antrix deals) the other Scientific Units, whether under Ministry of Defence, Agriculture or Medicine does not seems to have lived up to their expectation. After Swaminathan, there seem to be a long gap. The Cryogenic Engine, Avionics, MTB and even the low flying Radars are examples of case failures. With nothing much to advance their glory (as they may be viewed by others) can the Scientists, in a moral sense be entitled to such encouragements? It is to be noted that these are the units which are most heavily funded and the cost of welfare in projects is really high. The respondents cannot speak of any secret work which may have been extracted from applicants. But we will assume that the Nation has, at least to 22 OA No. 291/2015 an extent benefitted from that.
Therefore in larger public interest, the Scientists themselves, must decide for themselves whether the quantum and quality of their work was of sufficient significance to earn themselves their extra pensionary benefit. It would be appropriate if such person submits a note affidavit on the scientific advancement to which he or she has been a party, to an officer designated by the Government of India. Such documents would make them eligible to be considered for benefits awarded by the Government. These materials would enable Government to assess whether measures to encourage scientists have achieved their purpose or not.the study shall be conducted not in a bureaucratic straight jacket formula or accounting cost/benefit ratio but by the yardstick of common man's understanding. Perhaps the study could be conducted by a committee comprising Parliamentarians, experts, Social Scientists, Social activists and so on. The study may be conducted and concluded within the next six months and thereafter, if the Government so wishes, it can have a relook into the situation prospectively, in larger public interest but till then the finance Ministry's objections are not valid.
Since the Hon'ble Apex Court also had upheld this view of encouragement by dismissing the SLP judicial discipline and propriety also enjoins us to follow the judgment of the Hon'ble High Court of Kerala (supra) and the Coordinate Benches of this Tribunal. Accordingly, the Respondents are directed to treat the two additional increments granted to the Applicants as Pay for computing the Pension to be re-fixed on this basis within a period of 2 months from the date of receipt/communication of a copy of this order and the affidavit as aforesaid. As regards Profession Update Allowance, as in prayer C the Applicant has not produced necessary material in support of their case and accordingly we are unable to provide that portion of the relief but the other relief is allowed with the above reservation and rider of prospective examination and consequences dating from the date of filing the OA..
23 OA No. 291/2015The OA is allowed to the above extent as common orders in all cases. No orders as to costs.
2. We had therefore found that the hopes and dreams the people of India had on Scientists as a whole had not materialised. In several instances we have found that, given the pay structure available in India, the other benefits available in India of Government servants and equal stature and qualifications, very many benefits were extended to the Scientists including this special pay. The Union of India expressed their dissatisfaction as well as a feeling of being let down as we found that the lakhs of crores were spent on umpteen number of projects without the benefits, if not in any proportion, atleast to an extent of being worthwhile. We are therefore going back. We have explained the Bangalore Bench judgment within the parameter of Hon'ble Apex court judgment and social violation to the people of India, purpose of enhancement of benefits to the Scientific community in India whereas even the smallest of country's were able to produce more advances in scientific innovations but through a bureaucratic scientific community, beset by lack of countability and fixation of responsibility, gross failure has been brought in other than in a few isolated instance in connection with ISRO, the entire scientific community had failed India was the contention of the learned Counsel. We have gone through very carefully and done a lot of research on this aspect. To our infinite regret we find that the fear 24 OA No. 291/2015 expressed by the Government of India in this regard seems to be correct and we need to stand corrected. The special pay and the special pay scale was postulated on the people that the best scientific minds in India must be able to put India ahead and produce results. Had the scientific India produced results atleast in reasonable proportion but with what had been spent on them and their projects, probably the issue would not have arisen even though it was not directly challenged as such the feeling of wastage of public money and that too without limit seems to be upper most among the auditors and accountants of nation's wealth. Apparently all these had been brought out in various reports of audit and in the ministry of finance. One ground raised by them seems to be that if one group of people with nothing special to show for their efforts had since obtained a special pay others in similar structure would also demand the same and on the same parity it may have to extend to them as well that the Government feel that waste of expenditure without adequate protection of the people, the tax payers, whose burden is to sustain all these people.
3. But at the same time the Government had taken a decision to grant special pay and obtained a Presidential sanction for it. Thereafter, it cannot be lightly to be interfered with. It is also not possible to issue notice to the individual Scientist and seek from them as to why special pay could not be 25 OA No. 291/2015 allowed to them. The sheer volume involved in this purpose will defeat the system and this is for conservation of national wealth.
4. Therefore we have devised a parameter. We have held that let the special pay be granted to, on each Scientist on his filing an affidavit with concerned authority explaining his personal contribution to scientific advancement in India which necessitated an approved special pay in his/her favour. We have not devised any methodology in which this issue may be revisited as the Hon'ble Apex Court has finally settled the matter. We are of the view that this rider can be kept as a parameter to bring into fruition a sense of accountability. Ofcourse the society can chose to opt out and forgo the benefits of special pay.
5. Therefore, the rider will be that each of the Scientists who are to be benefited from it must produce an affidavit to the concerned authority indicating his personal contribution to the scientific advancement. On such receipt of affidavit the special pay and other benefits should be granted to him/her. At the same time this will provide an opportunity to the Union of India, Ministry of Finance to examine worthiness of the scheme and come to a studied conclusion. We have already found that through these decades a sum of two lakhs crores approximately have been spent on different projects postulated by the scientific community which may have inured in, let alone the whole benefit atleast not even 10% benefit to people of India. It is this 26 OA No. 291/2015 state of affairs in which an attempt was made by the Union of India through Ministry of Finance. It is not an empty attempt but a sincere cry of agony.
6. When we create special benefits it is on the assumption that such creation inure to the benefit of the tax payers. We cannot assume that a proportional benefit will ensue, but it should be worthwhile and therefore there should be an opportunity for Union of India to examine this matter.
Therefore with this rider we allow this application and hold that scientific community who are desirous of this benefit to accrue may file affidavit with the concerned authority as stated in the earlier order within the time frame of two months and an affidavit as stated above, with that condition and rider, the OA is allowed. No costs.
(K.N.SRIVASTAVA) (DR.K.B.SURESH)
MEMBER(A) MEMBER(J)
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