Andhra HC (Pre-Telangana)
Secretary, Ministry Of Personnel, ... vs R. Rama Murthy And Anr. on 24 December, 2003
Equivalent citations: 2004(4)ALD66, 2004(3)ALT178
JUDGMENT G. Bikshapathy, J.
1. The issue that arises for consideration in the writ petition is "what is the mode of calculation of restoration of pension in respect of the employees covered by Rule 37-A of CCS Pension Rules, 1972 (for brevity Pension Rules).
2. The practical implementation of the rule is the moot question in this case. The respondent-employee was not an applicant before the Tribunal. He filed an application before the Central Administrative Tribunal in OA No. 1345 of 2001 challenging the order issued by the Accountant General, Orissa, dated 9-5-2000 fixing the quantum of pension restored after a period of 15 years under the Pension Rules. It was his case that he was appointed as UDC in the Office of Accountant General, Orissa in Puri Branch and he was subsequently promoted as Accounts Officer on 7-4-1964. He was sent on deputation to Computer Maintenance Corporation after his name was selected by the Controller and Auditor General of India. In the said Corporation he was appointed as Accounts Manager in Hyderabad division and subsequently the applicant was permanently absorbed from 1-6-1979. Thus, he served the Central Government from 27.11.1950 to 31.5.1979. His case is that all the Central Government employees, who were deputed to the Government Corporations or Government Autonomous Bodies and subsequently absorbed permanently, the period of service in the Central Government i.e., prior to absorption was treated as voluntary retirement and such employees became eligible for pension in accordance with the Pension Rules on par with the Central Government employees including the restoration of pension after 15 years.
3. The question that arises as to what is the amount of pension to which he is entitled in respect of the service rendered in the Central Government in accordance with rules. It is not in dispute that the period worked in the Central Government would quality him to earn full pension and not prorate pension. Under Rule 5(1) of CCS Computation Rules, 1981 (hereinafter called Computation Rules), the Central Government employee is entitled to commute not more than 1/3rd of the pension eligible to be drawn by him. However, separate provisions are made with regard to regulation of pension in respect of absorbees like the petitioner. In this regard, Rules 37 and 37-A of the Pension Rules are relevant which are extracted below:
"Rule 37 : Pension on absorption in or under a Corporation, company or body :--(1) A Government servant who has been permitted to be absorbed in a service or post in or under a Corporation or Company wholly or substantially owned or controlled by the Central Government or a State Government or in or under a Body controlled or financed by the Central Government or a State Government, shall be deemed to have retired from service from the date of such absorption and subject to Sub-rule (3) he shall be eligible to receive retirement benefits which he may be elected, or deemed to have elected, and from such date as may be determined, in accordance with the orders of the Central Government applicable to him.
Explanation :--Date of absorption shall be:--
(I) in a case a Government employee joins a Corporation or a company or body or immediate absorption basis the date on which he actually joins that corporation or company or body;
(II) in case a Government employee initially joins a corporation or company or body on foreign service terms by retaining a lien under the Government the date from which his unqualified resignation is accepted by the Government.
(2) The provisions of Sub-rule (1) shall also apply to Central Government servants who are permitted to be absorbed in joint sector undertakings, wholly under the joint control of Central Government and State Government/Union Territory Administration or under the joint control of two or more State Governments/Union Territory Administrations.
(3) Where there is a pension scheme in a body controlled or financed by the Central Government in which a Government servant is absorbed, he shall be entitled to exercise option either to count the service rendered under the Central Government in that body for pension or to receive pro rata retirement benefits for the service rendered under the Central Government in accordance with the orders issued by the Central Government.
Explanation :--Body means autonomous body or statutory body.
Rule 37-A : Payment of lump sum amount to person on absorption in or under a Corporation, company or body :--(1) Where a Government servant referred to in Rule 37 elects the alternative of receiving the (retirement gratuity) and a lump sum amount in lieu of pension he shall in addition to the (retirement gratuity) be granted :--
(A) on an application made in this behalf, a lump sum amount not exceeding the commuted value of one-third of his pension as may be admissible to him in accordance with the provisions of the Civil Pensions (Commutation) Rules, and (B) terminal benefits equal to the commuted value of the balance amount of pension left after commuting one-third of pension to be worked out with reference to the commutation tables obtaining on the date from which the commuted value becomes payable subject to the condition that the Government servant surrenders his right of drawing two-thirds of his pension."
4. Thus, by virtue of the aforesaid Rules, a Government servant who was absorbed in a Corporation, Company or Autonomous body, he is entitled to make an application to commute not more than 1/3rd of his pension and obtain commuted value as may be admissible in accordance with the Civil Pension Commutation Rules. He is also entitled to receive terminable benefits equal to commuted value of the balance value of pension left after commutation calculated on the basis of the commutation table obtained as on the date of the commutation.
5. Certain public interest litigations were brought before the Supreme Court under Article 32 of Constitution of India relating to computation of pension and interpretation of Rules 37 and 37-A of Pension Rules. Therefore, it is necessary to refer to decisions before actually going into the facts of the present case.
6. In 'Common Cause", A Registered Society v. Union of India, , a public interest litigation was filed by the Registered Society and three retired Government servants seeking striking down certain Commutation Rules applicable to civil and defence pensioners and sought restoration commuted pension after expiry of 12 years. Their grievance was that the commuted value of pension would be recovered within 12 years and restoring the commuted pension after 12 years would be nothing but paying more than what was received by the pensioner. Thus, they sought direction for restoration of pension after 12 years. The Central Government employees including civilians in the defence department are permitted to commute pension upto 1/3rd and the argument advanced on behalf of the petitioners was that there was substantial improvement in the expectation of life in India and that it should be reverted back within 12 years. On a suggestion by the Supreme Court and also taking into account, the State Governments have changed the Commutation Rules restoring the full pension to the employees after lapse of 15 years, the Central Government agreed to restore the commuted portion of the pension to all the civilian employees. The decision of the Central Government as was placed before the Supreme Court, which read thus:
(i) Recovery from pension payable every month towards commuted value of pension will stop on the completion of 15 years from the date of retirement on superannuation or on the pensioner completing the age of 70 years, whichever is later.
(ii) The formulation will apply to all civilian pensioners in whose case the age of retirement on superannuation is 58 years and the personnel of Armed Forces in whose case the retirement age varies in accordance with the colour service prescribed for the rank (attaining the age of 37/38 years or more).
(iii) Government have taken this decision as an act of goodwill to pensioners and to extend to them some measure of relief in the evening of their lives. It is sincerely believed that there will be no further demand on this issue and that the pensioners will accept the decision of the Government without dissent or reservation.
(iv) The decision will take effect prospectively (from 14-1986)."
7. The contention of the petitioners that the commuted portion is recovered within 12 months and therefore, there was no justification for fixing 15 years was not accepted by the Supreme Court. The Supreme Court observed:
Commutation brings about certain advantages. The commuting pensioner gets a lump sum amount which ordinarily he would have received in course of a spread over period subject to his continuing to live. Thus, two advantages are certainly forthcoming out of commutation - (1) availability of a lump sum amount, and (2) the risk factor. Again many of the State Governments have already formulated schemes accepting the 15 years rule. In this background, we do not think we would be justified in disturbing the 15 years formula so far as civilian pensioners are concerned.
8, In Welfare Association of Absorbed Central Government Employees in Public Enterprises v. Union of India, , the members of Welfare Association and the individual filed the above public interest litigation. These persons originally belong to the Central Government employees and thereafter absorbed in the Corporation or Public Sector Undertakings like the petitioner herein. It was their contention that by virtue of the Rule 37-A, they were entitled to commute 1/3rd of the original pension and also receive terminal benefits in respect of the balance pension. However, after lapse of 15 years, 1/3rd commuted pension granted to them was not restored. It may be noted that by virtue of Rule 37-A, the Central Government employees who were absorbed later in Public Sector Undertakings, were categorised into three divisions. (1) the persons, who have not commuted their pension and therefore, drawn full monthly pension from the Government, (2) the persons who have commuted 1/3rd of the pension and therefore, will draw a sliced monthly pension, reduced to the extent of commuted amount, (3) the persons who have commuted the full pension and who will not be given any monthly pension by deeming monthly pension to have been reduced to nil. The persons falling in the first category continue to derive all the benefits of being a Government pensioner and get all the interim relief, liberalisation and/or whatever releifs are given by the Government to the petitioners. The Government issued OM dated 5-3-1987, denying the restoration of 1/3rd pension on the ground that ceased to the Central Government employees. The persons in the second category are denied these benefits to the extent of "one-third commutation". The third category is the worst hit and are totally denied of all these benefits. The above mentioned second category of the employees namely retired Government servants, who got one-third pension commuted moved this Court for restoration of their 1/3rd pension by filing a writ petition under Article 32 of Constitution of India taking support from Common Cause's case (supra). Rules 37 and 37-A read as follows:
"Rule 37 : Pension on absorption in or under a corporation, company or body :--(1) A Government servant who has been permitted to be absorbed in a service or post in or under a Corporation or Company wholly or substantially owned or controlled by the Central Government or a State Government or in or under a Body controlled or financed by the Central Government or a State Government, shall be deemed to have retired from service from the date of such absorption and subject to Sub-rule (3) he shall be eligible to receive retirement benefits which he may be elected, or deemed to have elected, and from such date as may be determined, in accordance with the orders of the Central Government applicable to him.
Explanation :--Date of absorption shall be:--
(I) in a case a Government employee joins a Corporation or a company or body on immediate absorption basis the date on which he actually joins that corporation or company or body;
(II) in case a Government employee initially joins a corporation or company or body on foreign service terms by retaining a lien under the Government the date from which his unqualified resignation is accepted by the Government.
(2) The provisions of Sub-rule (1) shall also apply to Central Government servants who are permitted to be absorbed in joint sector undertakings, wholly under the joint control of Central Government and State Government/Union Territory Administration or under the joint control of two or more State Governments/Union Territory Administrations.
(3) Where there is a pension scheme in a body controlled or financed by the Central Government in which a Government servant is absorbed, he shall be entitled to exercise option either to count the service rendered under the Central Government in that body for pension or to receive pro rata retirement benefits for the service rendered under the Central Government in accordance with the orders issued by the Central Government.
Explanation :--Body means autonomous body or statutory body.
Rule 37-A : Payment of lump sum amount to person on absorption in or under a Corporation, company or body :--(1) Where a Government servant referred to in Rule 37 elects the alternative of receiving the (retirement gratuity) and a lump sum amount in lieu of pension he shall in addition to the (retirement gratuity) be granted :
(A) on an application made in this behalf, a lump sum amount not exceeding the commuted value of one-third of his pension as may be admissible to him in accordance with the provisions of the Civil Pensions (Commutation) Rules, and (B) terminal benefits equal to the commuted value of the balance amount of pension left after commuting one-third of pension to be worked out with reference to the commutation tables obtaining on the date from which the commuted value becomes payable subject to the condition that the Government servant surrenders his right of drawing two-thirds of his pension."
9. The Supreme Court after referring to Rules 37 and 37-A of Pension Rules observed that denial of benefit of restoration to those pensioners, who had commuted 1/3rd portion of the pension was violative of Articles 14 and 16 of Constitution of India and that the principles enunciated in the Common Cause's (supra), equally applies to the petitioners in respect of restoration of 1/3rd pension in the case of the petitioners also. Para 13 is relevant, which is extracted below:
"If after the expiry of 15 years, the pensioners who have opted for one-third commutation, becomes entitled to restoration of pension on the ground that the lump sum amount paid had got adjusted before the said period as held in 'Common Cause' case, there is no good reason for not applying the same to the petitioners who have commuted their one-third portion of the pension under Rule 37-A of the Pension Rules 1972 without any commitment for this portion of commutation. Presumably the respondent realising the fallacy have withdrawn the scheme of permitting commutation of full pension by O.M No. 4/42/91-P&PW(d) dated 31-3-1995. Para 3 of the Office Memorandum reads as follows :
"3. The proposal to review the existing terms and conditions of absorption had been under consideration of the Government for quite sometime past. The President is now pleased to ... ...(sic) that the existing terms and conditions of absorption shall stand partially modified to the extent indicated below:
(A) The existing facility of receiving capitalization value equivalent to 100 per cent commutation of pension on absorption shall stand withdrawn;
(B) The existing facility to draw pro rata monthly pension from the date of absorption (with option to commute 1/3rd pension wherever admissible shall continue to exist."
10. A contention was sought to be raised before the Court that the petitioners commuting pension full by virtue of the Rule 37-A ceased to the Central Government pensioners. Rejecting, this the Supreme Court observed thus:
This is too broad a contention to be accepted as no statute or rule is quoted in support of this contention. This stand taken by the Government does not appear to be correct in view of their own counter-affidavit filed in this case. In the counter-affidavit it has been stated as follows :
"It would be seen from (b) above that the two third terminal benefits received by the absorbees is nothing but pension. Thus, the absorbees who have opted for lump sum payment have not only commuted one-third of their pension but also the remaining portion of two-third pension, which is termed as "terminal benefits". The absorbees have in fact commuted the entire pension and not one third of pension."
10. It would be seen from (b) above, two-third terminal benefits received by the absorbees is nothing but pension. Further as per the condition imposed in the absorption order, the family pension when not provided in the public undertakings in which the retired Government servants were absorbed, the payment of family pension is continued by the Government. The relevant condition reads as follows :
"(II) As regards entitlement to family pension, the condition imposed reads--
"On his permanent absorption in the Company his family will be eligible for family pension subject to the provisions of Rule 54 of CCS (Pension) Rules, 1972 and any other orders issued by the Government of India from time to time provided that he is not covered by any other family pension scheme applicable to the Company Staff."
Therefore, by virtue of the aforesaid provisions, the persons (absorbees), who commuted 1/3rd of the pension were also given the benefit of restoration of pension after 15 years on par with the Central Government employees.
11. In Welfare Association of Absorbed Central Government Employees in Public Enterprises v. Arvind Verma, , the Supreme Court while disposing of some of the contempt cases arising out of the Order passed in W.P. No. 11855 of 1985 held that the attendant benefits like revision of pension arising as a result for restoration of pension is also applicable to the Public Sector Undertakings absorbees (P.S.U. absorbees) who were earlier Central Government servants on par with the Central Government employees. It was observed by the Supreme Court that though in pursuance of the judgment referred to above, the respondent has restored only 1/3rd of commuted pension, but denied the attendant benefits which are applicable to the other Central Government pensioners. The Supreme Court clarified that the Public Sector Undertakings absorbees are to be treated as Central Government employees for all the benefits as accrued to the Central Government pensioners. However, in P.V. Sundara Rajan v. Union of India, , the Supreme Court held that the Government servants absorbed Public Sector Undertakings, who commuted 100% of their pension are entitled to dearness allowance of 1/3rd of pension, even at pre-restoration stage like other Central Government Pensioners. Paras 10 to 14 are relevant, which are extracted below:
10. One of main grievance urged in the applications is that all Central Government pensioners are entitled to dearness relief on sanctioned basis pension as revised from time to time, regardless of whether they have commuted any part of their pension. It has been claimed that the benefit is to be calculated at applicable rates on the amount of pension including the amount of commuted pension but these benefits have been restored to the petitioners only partly at the notified rates on one-third of the notional pension. It has been submitted that they are at par with other Central Government pensioners.
11. The dearness relief on pension has been granted to pensioners to compensate them for the erosion in the value of money due to rise in the cost of living. It seems clear that the Government has permitted to the applicants dearness relief calculated only on one-third part of the pension restored while in case of other pensioners, the dearness relief is calculated on full pension including the commuted part of pension. As already noticed, the applicants are to be treated on the same footing as other Central Government employees insofar as the question of restoration of one-third of commuted pension is concerned and are entitled to the benefits as given in Common Cause case , In this respect, it would also be useful to notice that the 'pension' as defined in Central Civil Services (Pension) Rules, 1972 does not include dearness relief. Rule 3(1)(o) reads as under :
"'Pension' includes gratuity except when the term pension is used in contradistinction to gratuity, but does not include dearness relief;"
We may also reproduce Rule 55-A :
"Dearness Relief on Pension/Family Pension (I) Relief against price rise may be granted to the pensioners and family pensioners in the form of dearness relief at such rates and subject to such conditions as the Central Government may specify from tune to time.
(II) If a pensioner is re-employed under the Central or State Government or a Corporation/Company/Body/Bank under them in India or abroad including permanent absorption in such Corporation/Company/Body/Bank, he shall not be eligible to draw dearness relief on pension/family pension during the period of such re-employment.
(III) Deleted"
12. The Government instructions also show that the dearness relief is granted to compensate the pensioners for erosion in the value of money due to rise in the cost of living. Anything which is not part of pension has to be paid in full insofar as those who have commuted one-third pension. Nothing of substance could be shown by Mr. Altaf Ahmed, learned Additional Solicitor General, so as to deprive the grant of benefit of dearness relief on full pension to these public sector absorbees at par with Central Government pensioners. Directions in this regard have been issued by this Court from time to time but applicants are still being deprived of this benefit. We give to the respondents a final opportunity to grant to the applicants the benefit of dearness relief on pension as aforesaid within a period of three months. The applicants are, however, not entitled to any other benefit claimed in the applications.
13. The parity claimed by Lt. Col. Malhotra and other absorbees who had commuted 100 per cent pension, in our view, is entirely misplaced. The contention that what is commuted or given up is an amount and not the right to receive pension or right to receive post-commutation revision and attendant benefits including dearness relief on the gross entitled pension on the dates they were granted to other Government pensioners, is only illusory. The decision in the case of State of T.N. v. V.S. Balakrishnan, 1994 Suppl (3) SCC 204 = (1994 AIR SCW 3277), on which reliance was placed by Mr. Gopal Subramanium, Senior Advocate, has no applicability to the point in issue. Those who commuted 100 per cent pension continue to remain non-pensioners till their pension is restored. In Welfare Association case (supra), persons who commuted the full pension and who will not be given any monthly pension by deeming monthly pension to have been reduced to nil has been treated as a separate category. Those who commute 100 per cent pension are not entitled to the benefit of dearness relief on full pension or other benefits as claimed herein. We also do not find any discrimination insofar as this class is concerned.
Yet in another decision in R. Gandhi v. Union of India, , the Supreme Court observed that the restoration of the commutation of pension after 15 years has to be counted from the date of the commutation and not from the date of the retirement with which we are not concerned.
12. In Des Raj Bhatnagar v. Union of India, , the Supreme Court, however, observed in Paras 11 and 12 as follows:
11. It was contended by Mr. Rao on behalf of the petitioners that the petitioners are not claiming any pension but their contention is that the Liberalised Pension Rules which give benefit to those pensioners who had got their one-third pension commuted should be granted to the petitioners by awarding lump sum after increasing their pension and calculating such amount in proportion to the increased pension. We find no force in this contention as the petitioners fall in a different class altogether and are not entitled to claim any benefit granted to Central Government pensioners. After getting a lump sum in lieu of entire pension, they do not fall in the class of Central Government pensioners and are not entitled to any benefit granted to Central Government pensioners. The case of such Central Government pensioners who got their one-third pension commuted also fall in a different class inasmuch as they get two-third pension, and after 15 years of such commutation or having attained the age of 70 years whichever was later they become entitled to full pension. Petitioners on the other hand were not entitled to any pension after having received the lump-sum amount in lieu of pension being commuted and having opted to receive such amount in lump sum at the time of entering the service in Public Sector Undertaking.
12. In the abovementioned Civil Appeal the legal question is identical except that the appellant in this case became a pensioner of the Central Government with effect from 1-4-1977 and the pension determined as payable to him was Rs. 609.00 per month and the same was got commuted by the appellant for a lump sum amount on and from 7-8-1978. The appellant had exercised the option for absorption in Steel Authority of India Limited (SAIL) a Public Sector Enterprise. The writ petition filed by him before the High Court of Delhi was dismissed on 25-8-1982. The appellant then filed a Special Leave Petition against the said order. This Court had granted special leave on 25-3-1985 and had given a direction to hear the appeal along with the Writ Petition Nos. 11757 and 11758 of 1984.
13. From the aforesaid judgments of the Supreme Court, it is clear that Public Sector Undertakings absorbees, who were Central Government employees earlier are entitled to commute 1/3rd of the pension and also claim terminal benefits for the balance 2/3rd of pension on the basis of commuted value in accordance with the relevant tables at the relevant time. The Supreme Court also clarified that in respect of the 1/3rd of the commutation of pension which was done by the employees is also entitled for Dearness relief or allowance as the case may be as applicable to the Central Government employees. The Supreme Court further clarified that after completion of 15 years of service, the 1/3rd commuted portion will be restored and the dearness allowance on full pension is payable to such absorbees. In fact the learned Standing Counsel for the Central Government fairly submits before this Court that the P.S.U. absorbees were given the benefit of Dearness Relief etc., in full on the basis of pension without reference as to whether such absorbee has commuted 1/3rd pension or whether he has received commutation value of 2/3rd pension as terminal benefits. However, the issue that calls for consideration is whether after 15 years in case of Public Sector Undertakings absorbees whether full pension is restored or only 1/3rd of pension (commuted pension) is restored in respect of such absorbees, who commuted 100% pension. According to the learned Counsel for the petitioner the absorbee gets restoration of full pension notionally and that 1/3rd has to be calculated after arriving at a full pension and deducting the value of the 2/3rd, pension which was received by him as terminal benefits. In the instant case the following are the details of the employee:
He worked as Central Government employee from 27.11.1950 to 31.5.1979. Thereafter he was absorbed in the Public Sector Undertakings. Therefore, his pension was fixed at Rs. 604/- for the period of service in Central Government for which there is no dispute from both the sides.
Date of commutation of 1/3rd pension - 26.9.1980 Date of restoration of 1/3rd pension: 25.9.1995 Commuted amount under Rule 37-A(1)(A) of the C.C.S. Pension: Rs. 201/- Amount surrendered under Section 37-A(1)(B): Rs. 403/- Basic pension, which the petitioner is entitled consequent on the applicability of the 4th Pay Commission: Rs. 1,267/- Basic pension is as follows :
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Basic Pension Existing Dearness Additional Benefits
Relief
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Rs. 604/- Rs. 538 Rs. 125/-
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After implementation of 5th pay commission from 1-1-1996, the basic pension as applicable to the petitioner is revised as follows:
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Basic Interim Dearness Fitment Pension Relief Relief Allowance
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1,350/- 150/- 1,999/- 540/-
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As can be seen from the above figures after 15 years i.e., from 28-6-1997, it is admitted that the basic pension of the petitioner is Rs. 604/-. It is also admitted that the petitioner is entitled for the dearness relief and others attendant benefits on full pension and the learned Standing Counsel concedes before this Court that as far as the other reliefs are concerned, other than the pension they are being released on full pension not on pro-rate basis confining only to 1/3rd of pension.
14. Therefore, the issue that arises for consideration is how to calculate the 1/3rd of basic pension from 25.6.1995 to 1.1.1996 (on the basis of 4th Pay Commission) and thereafter under 5th Pay Commission.
15. It is the case of the petitioner that from Rs. 604/- basic pension to arrive at 1/3rd of the pension amounts surrendered towards 2/3rd pension i.e., Rs. 403/- per month has to be deducted. Thus, after deducting 2/3rd pension (i.e., Rs. 604/- -Rs. 403/-) comes to Rs. 201/- and other benefits Rs. 538/- and Rs. 125/-, total Rs. 864/-. The same principle is applicable from 1.1.1996 by taking into account 5th Pay Commission:
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Basic Interim Dearness Fitment Total Pension Relief Relief Allowance
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947/- 185/- 1,998/- 540/- 3,670/-
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However, the learned Counsel for the petitioner submits that 1/3rd has to be calculated on the basis of basic pension and after deduction of 2/3rd Rs. 403/-. As per rule what is restored is 1/3rd pension and not full pension as he is a Public Sector Undertakings absorbee. The facility of surrendering 2/3rd pension was in vogue for some period and it is now dispensed with, but we are only concerned with the situation, when the facility was in vogue as in the present case. The learned Standing Counsel submits that in case of P.S.U. absorbees, who had not only commuted 1/3rd pension, but also obtained terminal benefits in respect of the 2/3rd pension also, the full pension cannot be restored. Unlike, the other pensioners-Central Government employees, in their case only maximum permissible extent of commutation is 1/3rd of pension and the balance is paid on monthly basis, but whereas, in case of PSU absorbees, they get maximum amount at a time. In that way, they cannot be treated on par with the Central Government employees, in respect of the pension. Therefore, ultimate submission of the learned Standing Counsel is what is restored is not full pension but only 1/3rd of the basic pension with reference to the pension drawn by him. Admittedly, in the instant case 1/3rd of pension has been communted. Therefore, he submits that his basic pension is liable to be fixed on 28-6-1980 at Rs. 201/- and while from 1-1-1996, basic pension is Rs. 403/-. However, the petitioner will be entitled for other benefits like dearness relief, interim relief etc., on full pension of Rs. 604/- from 26-9-1995 and Rs. 1,350/- from 1-1-1996. The learned Counsel for the petitioner, however, submits that it would be invidious discrimination and injustice to Public Sector Undertakings absorbees. When the Supreme Court also observed that for the purpose of pension and other benefits, the PSU absorbees are to be treated on par with the Central Government employees, the former cannot be denied the benefit of proper fixation. In such an event, what has to be deducted to arrive at proper pension is to deduct the amount which were represented 2/3rd of pension every month namely, Rs. 403/-.
16. In substance they submits that 1/3rd pension after 15 years has to be calculated as follows:
Period - 25-6- 1995 toJ-1-193B 14th Pay Commission Pay Scales/ As per petitioner As par SC for CG Plus with all other reliefs on Full Pension:
Basic pension Rs.604/-
1/3rd basic pension:
538/-
Minus : 403 : 201 201/-604/3
125/-
Reporting monthly Surrender value of 2/3rd Pension Note : Even though the 1/3rd pension arrived is the same amount. But, the procedure is different.
From 1-1-1996 onwa rds 1.350/-
135013:
450/-
185/-
403/-
1,998/-
947/-
540/-
17. We have given serious consideration to the respective contentions on the calculation of restorable pension after 15 years period.
18. We are afraid, we cannot accept the contention of the learned Counsel for the employee. Though, arguments appears to be very appealing at the first blush, but when it is scanned with regard to the rule position, his contention cannot be accepted. It has to be noted that Public Sector Undertakings absorbees are entitled for the benefit of pension on par with the Central Government employees. But, however, one distinction has to be noticed in this regard. The Central Government employee is entitled to commute not more than 1/3rd of pension and the same facility is also allowed to be enjoyed by the PSU absorbees by virtue of the judgment of the Supreme Court. But receiving terminal benefits in respect of the 2/3rd pension calculated with reference to the commutation table is not available to the Central Government employees. He has to receive 2/3rd pension every month after commutation of 1/3rd pension. Thus, as far as the Central Government employee is concerned what he has been receiving for the 15 years is 2/3rd pension and 1/3rd pension was commuted and even in respect of the 1/3rd commutation pension, the Public Sector Undertakings absorbees are also entitled for dearness relief etc., but not on the entire pension commuted as on the date of retirement. Moreover, they received lump sum amount by way of terminal benefits on surrendering of 2/3rd pension. In that way, they have already parted with 2/3rd pension, it cannot be said to be revive after 15 years. But, in case of Central Government employees, 2/3rd pension was continued to received by them. Therefore, what is restored is 1/3rd pension which means full pension. But, the same principle cannot be applied to say that the absorbee will get full pension after 15 years in case those who had commuted 1/3rd pension and received terminal benefits for 2/3rd pension. Had he not surrendered, he continued to receive 2/3rd pension, the same principle will apply as in case of Central Government employees. But having received the cash compensation in respect of the surrender value of 2/3rd he cannot be allowed to say that he is also a pensioner as far as 2/3rd pension is concerned. Such absorbees stand on a different footing and they fall in a different class by themselves on this issue. Under those circumstances, the inescapable conclusion is that 1/3rd pension has to be arrived at only on the basic of the basis pension divided by three after completion of 15 years, which became drawable as on the date of respective dates and not to be arrived by deducting Rs. 403/-from the pension. Therefore, the petitioner will be entitled to as follows:
Restorable Pension:
From 28-6-1987 to 31-12-1995 Basic Pension (604/1/3rd) 201/-
538/- Dearness Relief 125/- Additional Benefit:
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Total: 864/-
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From 1-1-1996 onwards (5th Pay Commission) 1/3rd of Basic Pension (1,350/- 1/3rd) 450/-
185/- Interim Relief :
1,998/- Dearness Relief 540/- Fitment Allowance
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Total: 3, 173/-
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19. In this case the employee has commuted minimum permissible pension i.e., 1/3rd. But, even if lesser portion is commuted, the pro rata commuted portion has to be deducted from the basic pension to arrive at restorable pension, but however, he will get Dearness Relief, Interim Relief etc. on full basic pension.
20. The order of the Tribunal is modified. The writ petition is accordingly disposed of directing the authorities to recalculate and refix the pension as directed above and pay the arrears within a period of two months from the date of receipt of a copy of this Order. There shall be no order as to costs.