Central Administrative Tribunal - Delhi
New Delhi This The 24Th Day Of August vs Union Of India on 24 August, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.1713/2007
New Delhi this the 24th day of August, 2009
Honble Dr. Dharam Paul Sharma, Member (J)
Shri Vidya Prakash Verma aged about 84 ( dead)
S/o Late Shri Dina Nath Verma,
Retired Senior Accountant,
Ministry of Heavy Industry & Public Enterprises,
New Delhi,
R/o B-88, Pushpanjali Enclave,
Pitampura,
Delhi-110034
2. Smt. Kanta Verma,
LR and W/O Shri Vidya Prakash Verma,
R/o B-88, Pushpanjali Enclave,
Pitampura,
Delhi-110034
.... Applicants
(By Advocate: Shri J.C.Madan)
VERSUS
Union of India,
Through Secretary,
Min. of Heavy Industry & Public Enterprises,
Udyog Bhawan,
New Delhi-110001
Secretary,
Ministry of Public Grievances,
Department of Pensions and PensionersWelfar,
Lok Nayak Bhawan, Khan Market
New Delhi-110003
Chief Pay and Account Officer,
Ministry of Heavy Industry & Public Enterprises,
Department of Heavy Industry,
Udyog Bhawan,
New Delhi-110001
.. Respondents
(By Advocate: Shri R.N.Singh)
O R D E R
The present application has been filed by the applicant under Section 19 of the Administrative Tribunals Act,1985 seeking revision of his pension after taking into account deputation pay on the lines on which pension has been revised in the case of one of his colleague, namely Shri J.P.Jain, pursuant to the order of this Tribunal dated 26.10.2005 in OA No.224/2005.
2. The applicant retired from Government service on 30.9.1981 as Senior Accountant while on deputation basis. His substantive post was Assistant in Govt. of India. At the time of retirement, he was getting pay of Rs.775+ D.P. Rs.77.50 at the rate of 852.50 as basic salary. A retiree at that time was entitled to get the benefit of deputation pay for the pension purpose. The deputation pay was added to the basic salary for pension purpose as per the rules operating in 1981. On retirement from the Ministry of Industry, Deptt. of Heavy Industry, Govt. of India on 30.9.1981, the applicant was given due benefit of the deputation pay of 10% drawn on the higher ex-cadre post of Sr. Accountant . This benefit was given to the applicant even when his pension was refixed on 1.1.1986. However, the same benefit was denied when his pension was refixed on 1.1.1996. As a result, his pension was reduced financially compared to the pension of his junior, namely Shri J.P.Jain who retired as Assistant on deputation at lower post of Junior Analyst whereas the applicant retired on a post above Assistant i.e. Senior Accountant. But the pension of Shri J.P.Jain was fixed at Rs.3667/- while the pension of the applicant was fixed at Rs.3637/- only. The applicants case is that as per Rule 33 of CCS (Pension) Rules,1972, the special pay was in lieu of higher scale of pay.
3. The applicant has referred to and relied upon the cases mentioned in para 4.12 of his application where the Court has granted same relief to a number of petitioners.
4. The last representation against wrong fixation of his pension was made on 16.10.2006 and the same was rejected by the respondents on 27.11.2006 whereupon the applicant filed the present application.
5. The respondents have opposed the claim of the applicant by filing the counter reply wherein they have, inter alia stated that the order of this Tribunal in the case of Shri J.P.Jain was appealed against in the Honble High Court of Dellhi wherein while allowing the relief to Shri J.P.Jain as a special case, the Honble Court has left the law point open in the writ petition. Thus, the benefit has been allowed to Shri J.P.Jain in personum and the same cannot be extended to the applicant herein.
6. It has further been submitted that the applicant has been given the benefit of revision of pension w.e.f 1.1.1996 on the basis of Department of Pension & Pensioners Welfare OM dated 10.2.1998, a copy of which is Annexure P-1 to accord parity to all the pre-1986 retirees in IV Pay Commissions scale. Accordingly, the deputation allowance has not been taken into account. This view has been upheld by the Honble Supreme Court in the case titled Col. (Retd) B.J.Akkara Vs. Union of India, Transfer Case (Civil) No.72 & 74 of 2004 vide judgment dated 10..10.2006, a copy of which is Annexure P-IV. The applicant has not been able to point out any violation of any statutory provision or policy decision on the subject and, therefore, no cause of action has accrued to him to file this application and the same is liable to be dismissed accordingly.
7. At the hearing, the learned counsel for the applicant submitted that the applicants case is on better footing than that of Shri J.P.Jain who retired on 31.1.1984, while the applicant retired on 30.9.1981. Furthermore, while Shri J.P.Jain retired as Junior Analyst which was relatively a lower post than the post from which the applicant had retired yet the pension of the applicant has been fixed lesser than that of Shri J.P.Jain. The applicant had been older in age than Shri J.P.Jain. Besides, the applicant has expired during the course of these proceedings. If Shri Jain could be given the benefit of the judgment for the reason that he had retired in 1984 and he ought not to have been subjected to further litigation at this juncture of life in the interest of justice. there is no reason why the similar benefit should not be accorded to the applicant, herein, who had retired three years prior to Shri Jain in 1981.
8. The learned counsel for the applicant further referred to Anil Ratan Sarkar and others Vs. State of W.B. and others (2001 (5) SCC 327) in support of his proposition that the judicial order has precedence over the executive order. The case of B.J.Akkara as relied upon by the respondents has been sought to be distinquished by the learned counsel for the applicant for the reason that this case relates to recovery of pay and as such is not relevant to the issue involved in the present case. It has been further pointed out by the learned counsel that the case of B.J.Akkara was there when the case of Shri Jain was decided yet the benefit was given to him by this Tribunal as well as the high Court.
9. The learned counsel for the respondents strongly emphasized the fact that the matter has not attained the finality in view of the fact that the question of law on the subject was left open by the Honble High Court while granting benefit to Shri Jain.
10. The learned counsel for the respondents strongly urged that no violation of rules has been shown by the applicant and, therefore, there is no occasion for judicial review. Even if someone has been given the benefit of pension, the same cannot be automatically extended to the applicant, herein. Equity does not override the express provision of law.
11. I have given my careful consideration to the submission made by the respective parties. I have also gone through the records of the case.
12. Admittedly, the issue involved in the case of Shri J.P. Jain as well as in the present case is the same; namely, whether deputation allowance is to be treated as part of the pay at the time of fixation of pension. The Coordinate Bench of this Tribunal has answered this question in affirmative. Union of India had gone in appeal against the order of this Tribunal in W.P.( C)9275 to 9277 of 2006 which has been disposed of by the Honble High Court vide its order dated 26.5.2006. It would be expedient to refer to Para 2 of the said order which reads as follows 2. The Tribunal in the impugned judgment has relied upon the judgment of the Honble Supreme Court in Anil Ratan Sarkar & Others Vs. State of West Bengal & Others, reported in 2001 (5) SCC 327 and in particular the following extract:-
This Court at an earlier occasion unequivocally upheld the reasoning of the Learned Single Judge in the earlier writ petition as accepted by the Appellate Bench and in the wake of such a finding of this Court question of denying a pay scale which is otherwise available to another teacher (in this case the Physical Instructor) does not and cannot arise more so by reason of the earlier order of this Court. Administrative apse dixit cannot infiltrate on to an arena which stands covered by judicial orders. The Tribunal has also relied upon the fact that in its earlier judgment in B.R.Agnihotri Vs. Comptroller and Auditor General of India passed in OA 1331/2002 decided on 28th August,2002 it was held that special pay is to be treated as part of the pay for notional fixation of pension etc. The aforesaid judgment relied upon by the Tribunal has become final. The Tribunal by relying on the above judgment of Honble Supreme Court in Anil Ratan Sarkars case (supra) and the judgment in B.R.Agnihotris case (supra) held that once there is a judicial determination of an issue, reliance cannot be placed on the rules to plead contrary to negate the effect of such judicial pronouncement. Prima facie. We see no flaw in the impugned judgment.
13. The learned counsel for the petitioner in that case pointed out certain rules to contend that the reasoning of the Tribunal ought not to have been sustained. However considering the fact that the respondent retired in 1984, the Honble High Court of Delhi in para 4 of its order observed that we are of the view that to subject him to further litigation at this juncture of his life will not be in the interest of justice. Accordingly while dismissing the writ petition, we left the question of law raised in this writ petition open to be determined in an appropriate case.
14. Whether the present case is such in which the question of law left open in the aforesaid writ petition can appropriately be agitated upon? I do not think so in view of the facts that the applicant had retired in 1981 as against Shri J.P.Singh who retired in 1984, the applicant is older than Shri Jain and like later he ought not to be subjected to further litigation in the interest of justice, especially when he is no more there having been unfortunately expired on 30.3.2008 whereupon his wife Smt. Kanta Verma has been brought on record.
15. Furthermore, even though the issue was left open by the Honble High Court and the same has not attained finality yet the fact remains that the order of this Tribunal on which reliance has been placed in the present case by the applicant has neither been reversed nor modified in any manner. On the other hand, the order in Shri J.P.Jains case was prima facie found to be in order.
16. In these premises, I am inclined to hold that the present case is fit to be allowed having regard to the peculiar circumstances of the case as well as the order of Coordinate Bench of this Tribunal and order of the Honble High Court thereon.
17. In the result, for the foregoing reasons, this OA is allowed. The impugned order dated 27.11.2006(Annexure-1) relating to re-consider pension is set aside. The respondents are directed to refix the claim of the applicant posthumously for revision of his pension on notional basis by treating the deputation allowance as part of the pay and, thereafter, take a decision to grant the consequential benefits to applicants LR as prayed for in this application within a period of three months from the date of receipt of a certified copy of this order. No order as to costs.
(Dr. Dharam Paul Sharma) Member (J) /usha/