Madras High Court
Union Of India vs M.Govindaraj on 6 October, 2023
Author: D.Krishnakumar
Bench: D. Krishnakumar
W.P. No.6439 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 06.10.2023
CORAM:
THE HONOURABLE MR. JUSTICE D. KRISHNAKUMAR
and
THE HONOURABLE MR. JUSTICE P. DHANABAL
Writ Petition No. 6439 of 2016
and
WMP No. 5721 of 2016
---
1. Union of India
Rep. by the General Manager,
Integral Coach Factory,
Chennai.
2. The Financial Advisor & Chief,
Accounts Officer/Fur,
Integral Coach Factory,
Chennai. .. Petitioners
Versus
1.M.Govindaraj
2.The Registrar,
Central Administrative Tribunal,
Madras Bench. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India seeking
to issue a Writ of certiorari to call for the records on the file of the second
respondent in OA.No.310/00542/2014, dated 31.08.2015 and quash the same.
For petitioners : Mr. P.T. Ramkumar
For respondents : Mr. L. Chandrakumar for R1
https://www.mhc.tn.gov.in/judis
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W.P. No.6439 of 2016
ORDER
(The Order of the Court was made by D.KRISHNAKUMAR, J) The Union of India has filed the present Writ Petition challenging the order passed by the Tribunal in OA. No. 542 of 2014, dated 31.08.2015.
2. It is the case of the petitioners that the first respondent was appointed as watchman in the Integral Coach Factory on temporary basis and subsequently, he was promoted to various posts. At the time of his retirement on 31.07.1991, he worked as Depot Store Keeper-Grade III post in the scale of pay of Rs.1750/-. According to the petitioners, while implementing the recommendations of the V Pay Commission, a revised Pension Payment Order dated 21.04.199 was issued to the first respondent, as per which, his pension was revised at Rs.2564/- in the scale of pay of Rs.5000-8000. Subsequently, another Pension Payment Order dated 22.12.2003 was issued in which the scale of pay was fixed at Rs.4500-7000 without altering the pension already revised. Subsequently, in the year 2008, VI Pay Commission was implemented and consequently, the first respondent's pension was revised at Rs.5,796/- with reference to PB-1 Rs.5200 - 20200 plus Grade Pay Rs.2,800/- by the order dated 22.05.2010. According to the first respondent, his pension ought to have been fixed at Rs.6,750/- in the Pay Band 2 in the scale of Rs.9300-34800 plus https://www.mhc.tn.gov.in/judis Page No.2 / 15 W.P. No.6439 of 2016 Grade Pay Rs.4,200/- and the fixation of pay in the order dated 22.05.2010 is erroneous. Therefore, aggrieved by the order dated 22.05.2010, the first respondent preferred OA. No. 542 of 2014 before the Central Administrative Tribunal, Madras Branch.
3. According to the petitioners the first respondent's pay scale, at time of his retirement was Rs.1400-2300 and the corresponding scale of pay as per V Pay Commission was Rs.4500-7000. Consequently, on the implementation of VI Pay Commission, the scale of pay was revised as Rs.5200-20200 plus 2800 (grade pay), which is in order as per the Rules. However, the Tribunal relying on the orders passed in O.A. No. 1135 of 2013 by the Central Administrative Tribunal, Ernakulam Bench, allowed the original application of the first respondent without placing any reliance on the differential factual situation between the two cases. Above all, the petitioners have assailed the Original Application on the ground that it was filed belatedly after one year and therefore, the Tribunal ought not to have entertained the same.
4. On the other hand, it is contended by the first respondent that he is a pre- 2006 pensioner and hence, the orders passed by the Ernakulam Bench will be applicable to his case. The Ernakulam Bench, following the order of https://www.mhc.tn.gov.in/judis Page No.3 / 15 W.P. No.6439 of 2016 Principal Bench in OA. No. 655 of 2010 held that the applicant therein is entitled to get his pension re-fixed as per the provisions contained in the sixth pay commission. The order of the Principal Bench in OA. No. 655 of 2010 was upheld by the Delhi High Court and the Special Leave Petition filed there against before the Honourable Supreme Court was also dismissed. While so, the order passed by the Tribunal is proper and no interference is required by this Court.
5. Heard the learned counsel appearing on either side and perused the materials available on record.
6. It is the contention of the first respondent that while implementing VI Pay Commission, the Department ought to have fixed his pension at Rs.6750/- in the pay band-II in scale of Rs.9300-34800 plus 4200 (grade pay).
However, the Department rejected his claim by order dated 22.05.2010.
Challenging the same, the first respondent filed O.A. No. 542 of 2014 before the Central Administrative Tribunal. The Tribunal allowed the Original Application by order dated 31.08.2015. Aggrieved over the same, the present appeal has been filed.
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7. It is to be noted that pursuant to the implementation of the V pay commission, the first respondent's pension was revised to Rs.2,564/- in the scale of pay of Rs.5000-8000. Subsequently, in respect of the aforesaid revision of scale of pay granted by the Railway Board, a clarification order has been issued on 20.08.2001, which reads as follows:
"2. The actual connotation of the "post last held" by the pensioner at the time of retirement/death while in service has now been clarified by the DOP&PW, which is the nodal department in all pensionary matters and empowered to give final interpretation to the rules and orders relating to such matters. Accordingly, it is hereby clarified that the sentence "Pension of all pensioners irrespective of their date of retirement shall not be less than 50% of the minimum pay in the revised scale of pay w.e.f. 1.1.1996 of the post last held by the pensioner" wherever used in Board's letters No.F(E)III/98/PN1/29 dated 15.1.1999 (RBE 8/99), shall mean that "Pension of all pensioners irrespective of their date of retirement shall not be less than 50% of the minimum of the corresponding scale as on 1.1.1996 of the scale of pay held by the pensioner at the time of retirement/death while in service. Similarly, w.e.f. 1.1.1996 family pension shall not be less than 30% of the minimum of the corresponding scale as on 1.1.1996 of the scale of pay held by the pensioner/deceased Railway servant."
8. Subsequently, the Railway Board also issued another letter dated 01.10.2001. In the light of the circulars, the petitioners issued a clarification dated 22.12.2003 revising the scale of pay of the first respondent as Rs.4500 -
7000. Subsequently, while implementing 6th pay commission, revision of pensionary benefits have been granted as Rs.5200-20200 plus 2800. However, https://www.mhc.tn.gov.in/judis Page No.5 / 15 W.P. No.6439 of 2016 the first respondent filed the Original Application before the Tribunal after a lapse of four years from the date of fixation of revised scale of pay. Even otherwise, the pension/family pension payable should not be less than 50%/30% of the minimum pay in the corresponding scale of pay in V CPC pay scale last held in IV CPC and not the post last held. This was clarified by the Railway Board vide letter dated 02.02.2010 rectifying the error occurred in adopting higher scale of pay of Rs.5000-8000 instead of Rs.4500-7000. Para 1 of the said Railway Board letter dated 02.02.2010 reads as follows:
"It has come to their notice that some of the Zonal railways while revising pension/family pension of pre-1996 and pre-2006 retires w.e.f. 01.01.2006 have incorrectly indicated the corresponding 5th CPC scale of pay and 6th CPC pay band and grade pay in the revised PPOs particularly in the case of pre- revised 4th CPC scales of Rs.1400-2300. In this regard, it is reaffirmed that the scale of pay/pay band (grade pay) corresponding to IV CPC pay scale of Rs.1400-2300 in V CPC and VI CPC is Rs.4500-7000 and Rs.5200-20200 (GP 2800) respectively, as has also been indicated in S.No.9 of Annexure-1 of Department of Pension and Pensioners' Welfare (DOP & PW OM dated 14.10.2008 circulated on the Railways vide this office letter of even number dated 18.11.2008.
9.Based on the above clarifications, the pay of the first respondent had https://www.mhc.tn.gov.in/judis Page No.6 / 15 W.P. No.6439 of 2016 been revised taking into account his pay in the V Central Pay Commission in PB-1 carrying the pay scale of Rs.5200-20200 plus Rs.2800 (grade pay). As such, we are of the view that the pay of the first respondent has been fixed correctly corresponding to the pre-revised pay scale that prevailed at the time of his retirement.
10. With regard to the first respondent's contention that the petitioner Department has fixed his scale of pay in serial No.9 of revised concordance table (annexure-I) at Rs.5200-20200 plus grade pay (2800) instead of serial No.10 of the table Rs.9300-34800 plus (4200), the leaned counsel for the petitioners Department relied upon the judgment of this Court in the case of Union of India vs. The Registrar, Central Administrative Tribunal in WP.Nos.3673 and 3674 of 2009. The relevant paragraph of the said order is extracted hereunder:
"7. Subsequently, this Court vide order dated 29.04.2005 made in W.P.Nos.24444 of 2001 batch, on the same issue, upheld the revision of scales of pay. Copy of the order passed by the order Division Bench is produced before us and after referring to several decisions, the Division Bench held as under :
"9. If that is so, then we have to look into the office memorandum dated 17.12.1998 and the clarification dated 11.5.2001. Under the office memorandum dated 17.12.1998 it https://www.mhc.tn.gov.in/judis Page No.7 / 15 W.P. No.6439 of 2016 is declared that the pension payable shall not be less than 50% of the minimum of the revised scale of pay introduced with effect from 1.1.1996 for the post last held by the pensioner at the time of his retirement. The post last held by the pensioner in each of the writ petition carried a pay scale of Rs. 1,500 - 2,000 and the said scale of pay, pursuant to the 5th Pay Commission recommendation, stands revised as Rs. 12,000- 16,500 with effect from 1.1.1996. There is no dispute that each of the pensioner is getting pension fixed on the revised scale of pay. The post referred to in the office memorandum dated 17.12.1998 is relatable to the scale of pay. Post and the scale of pay cannot be separated. Only to clarify this, the proceeding dated 11.5.2001 had come to be issued. Under that clarification, it is made clear that the expression "post last held by the pensioner" shall mean the scale of pay held by the pensioner at the time of his superannuation/retirement. Therefore reading the office memorandum dated 17.12.1998 it is clear to our mind that the pensioners concerned in this case can have their pension fixed only on the revised scale of pay of Rs. 12,000 - 16,500 introduced with effect from 1.1.1996 and not on any other scale, since admittedly they were only drawing a scale of pay on the corresponding previous scale of pay when they retired. This position, as could be seen clearly from the office memorandum dated 17.12.1998, stands clarified by the latter clarification dated 11.5.2001. Since the Hon'ble Supreme Court of India in the judgment referred to above namely, S.S. Grewal v. State of Punjab and Ors., 1993 Supp (3) SCC 234, had held that the clarification must be read as part of the original order, reading the clarification dated 11.5.2001 with the office memorandum dated 17.12.1998, it is not possible to reach any other conclusion other than the conclusion as reached https://www.mhc.tn.gov.in/judis by us above. Consequently, the order of the Central Page No.8 / 15 W.P. No.6439 of 2016 Administrative Tribunal challenged in these writ petitions is set aside and the writ petitions are allowed.
.....
12. .... The Tribunal held, going by the judgment of the Delhi High Court, that the clarification dated 11.5.2001 cannot deny higher pensionary benefits given to the pensioner under the office memorandum dated 17.12.1998 and granted the relief to him. We have already held that the clarification dated 11.5.2001 is valid; it forms an integral part of the office memorandum dated 17.12.1998 and reading both together, fixation of pension for the pensioner shall be only on the salary, which he was drawing on the date of his retirement. In implementing the 5th Pay Commission recommendation on the pay last drawn by the pensioner, the re-fixation was only at Rs. 22,400 - 26,000 and his fixation of pension shall be only on that basis and not on any other basis. For the reasons stated above, we hold that the impugned order is erroneous and it is liable to be set aside. Accordingly, it is set aside and W.P.No. 32527/2004 is allowed."
8. The fact that the Special Leave Petition was dismissed and against the Delhi High Court was also brought to the notice of the Division Bench which held and rightly so that when a special leave petition is dismissed at the admission stage, it would not amount to Supreme Court laying down law on the point and therefore, writ petitions filed by the Union of India were allowed.
9. As against the order of this Court, civil appeals were filed before the Supreme Court. In the backdrop of conflicting judgments of the Madras High Court and the Delhi High Court, Supreme Court clarified the position https://www.mhc.tn.gov.in/judis Page No.9 / 15 W.P. No.6439 of 2016 in K.S. Krishnaswamy v. Union of India, (2006) 13 SCC 215. The Supreme Court held as follows :-
17.The main thrust of the submissions of learned counsel for the appellants is that the OM dated 11-5-2001 overrides the original OM dated 17-12-1998 and creates two classes of pensioners. We are unable to accept this contention.
As noticed above, the recommendations of the Fifth Pay Commission were accepted to the extent of policy resolution dated 30-9-1997. The aforesaid Policy Resolution was further clarified by issuing instructions in OM dated 17-12-1998, which were clarified by another executive instructions in OM dated 11-5-2001. It is well-settled principle of law that recommendations of the Pay Commission are subject to the acceptance/rejection with modifications of the appropriate Government. It is also well-settled principle of law that a policy decision of the Government can be reviewed/altered/modified by executive instructions. It is in these circumstances that a policy decision cannot be challenged on the ground of estoppel. In the present case, the recommendations of the Fifth Pay Commission were accepted by a Policy Resolution dated 30-9- 1997 that the ceiling on the amount of pension will be 50% of the highest pay in the Government. The pension of all pre-1-1- 1996 retirees including pre-1986 retirees shall be consolidated as on 1-1-1996, but the consolidated pension shall not be brought on to the level of 50% of the minimum of the revised pay of the post held by the pensioner at the time of retirement. The subsequent OM dated 17-12-1998 clarified the Policy Resolution dated 30-9-1997 by executive instructions in OM dated 17-12-1998 and further clarified in the form of OM dated 11-5-2001 clarifying the contents of Policy Resolution of the Government dated 30-9-1997. They are both https://www.mhc.tn.gov.in/judis Page No.10 / 15 W.P. No.6439 of 2016 complementary to each other. Both clarify the government Policy Resolution dated 30-9-1997. The appellants are not aggrieved by the executive instructions in OM dated 17-12- 1998. In our view, therefore, the contention of the appellant that the OM dated 11-5-2001 overrides the original OM dated 17-12-1998, thereby creating two classes of pensioners is absolutely ill-founded and untenable.
18. It is common knowledge that an increase in the pay scale in any recommendation of a Pay Commission is a corresponding increase in the pay scale. In our view, therefore, executive instructions dated 11-5-2001 have been validly made keeping in view the recommendations of the Pay Commission accepted by the Policy Resolution of the Government on 30-9- 1997, clarified by executive instructions dated 17-12-1998. The executive instructions dated 11-5-2001 neither override the policy resolution dated 30-9-1997 nor executive instructions dated 17-12-1998 clarifying the policy resolution dated 30-9- 1997. The executive instructions dated 11-5-2001 were in the form of further clarifying the executive instructions dated 17- 12-1998 and do not override the same.
25. Lastly, it is contended that against the decision of the Delhi High Court, an SLP was dismissed by this Court on 8-7-2004 and, therefore, the doctrine of merger applies. It is not disputed that the SLP was dismissed in limine without a speaking order. This question has been set at rest by a three- Judge Bench of this Court in Kunhayammed v. State of Kerala, where this Court after referring to a two-Judge Bench, of this Court in V.M. Salgaocar & Bros. (P) Ltd. v. CIT held at SCC p.375, para 22 as under:
“22. We may refer to a recent decision, by a two-Judge Bench, of this Court in V.M. Salgaocar & Bros. (P) Ltd. v. https://www.mhc.tn.gov.in/judis Page No.11 / 15 W.P. No.6439 of 2016 CIT9 holding that when a special leave petition is dismissed, this Court does not comment on the correctness or otherwise of the order from which leave to appeal is sought. What the Court means is that it does not consider it to be a fit case for exercising its jurisdiction under Article 136 of the Constitution. That certainly could not be so when appeal is dismissed though by a non-speaking order. Here the doctrine of merger applies. In that case the Supreme Court upholds the decision of the High Court or of the Tribunal. This doctrine of merger does not apply in the case of dismissal of a special leave petition under Article 136. When appeal is dismissed, order of the High Court is merged with that of the Supreme Court. We find ourselves in entire agreement with the law so stated. We are clear in our mind that an order dismissing a special leave petition, more so when it is by a non-speaking order, does not result in merger of the order impugned into the order of the Supreme Court.” ........
27. For the reasons aforestated, the view taken by the Madras High Court that the clarificatory executive instructions in OM dated 11-5-2001 are an integral part of the OM dated 17-12-1998 clarifying the policy resolution of the Government dated 30-9-1997 and do not override the original OM dated 17-
12-1998 is correct law and it is, accordingly, affirmed. The view taken by the Delhi High Court that OM dated 11-5-2001 overrides the original OM dated 17-12-1998 and creates two classes of pensioners does not lay down the correct law and is, hereby, set aside.
10. In these circumstances and following the judgment of the Supreme Court, we allow the writ petitions insofar as the direction relating to revision https://www.mhc.tn.gov.in/judis Page No.12 / 15 W.P. No.6439 of 2016 of pension / family pension. But as regards the excess payment already made, it is no where the case of the Railways that pensioners/family pensioners had anything to do with the wrong calculations. There seems to have been a confusion in the understanding of the office memorandum which is why clarifications had to be issued. Therefore, there shall be no recovery on the excess payment if not already recovered. Also, recovery cannot be effected in future, if not already effected."
11. Further, the learned counsel for the petitioners also relied upon yet another decision of this Court in the case of Union of India vs. N. Ramaswamy and another in WP.No.19697 of 2017, dated 03.12.2018, wherein this Court allowed the said Writ Petition by setting aside the order of the Tribunal and directed to consider the matter afresh. According to learned counsel for the petitioners the present case on hand is identical and therefore the order of the Tribunal is liable to be set aside by allowing the Writ Petition.
12. It is seen from the records that the Tribunal by following the judgment of Ernakulam Bench, allowed the Original Application of the first respondent. However, the said decision is not applicable to the facts of the present case. In view of the above facts and circumstances of the case and the discussions made above and the judgment of this Court cited (supra), we are inclined to set aside the order of the Tribunal. Accordingly, the order of the Tribunal is set aside and the matter is remitted back to the the Tribunal to https://www.mhc.tn.gov.in/judis Page No.13 / 15 W.P. No.6439 of 2016 consider the matter afresh in the light of the decision of this Court referred to above. The Tribunal is directed to dispose of the Original Application within a period of 12 weeks from the date of receipt of a copy of this order. Both the parties shall cooperate for early disposal of the case.
13.With the above directions, this Writ Petition is allowed. No costs.
Consequently, connected miscellaneous petition is closed.
[D.K.K., J] [P.D.B., J.]
06.10.2023
Speaking order: Yes/No
Index : Yes/No
pvs
To
The Registrar,
Central Administrative Tribunal,
Madras Bench.
https://www.mhc.tn.gov.in/judis
Page No.14 / 15
W.P. No.6439 of 2016
D.KRISHNAKUMAR, J.
and
P.DHANABAL, J.
pvs
W.P. No.6439 of 2016
06.10.2023
https://www.mhc.tn.gov.in/judis
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