Punjab-Haryana High Court
P.K. Gupta, Maj. Gen. (Retd.) vs Union Of India (Uoi) And Ors. on 26 August, 1998
Equivalent citations: (1998)120PLR641
Author: B. Rai
Bench: B. Rai
JUDGMENT V.K. Bali, J.
1. P.K. Gupta, a retired Major General from Army, through present petition filed by him under Article 226 of the Constitution of India seeks issuance of writ in the nature of certiorari so as to quash order dated January 5, 1996 issued by respondent No. 1 and conveyed to the petitioner vide letter dated January 22, 1996 (Annexure P-18) as also writ in the nature of mandamus directing the respondents to fix his pension treating his last drawn average emoluments as Rs. 7600/- per month in Bhakra Beas Management Board (for short BBMB).
2. Brief facts, on which the relief aforesaid is sought to rest, reveal that petitioner was appointed as Chairman in the BBMB on September 22, 1989 after his retirement from the post of Brigadier in the Army. His appointment was at a fixed pay of Rs. 7600/- per month for a period of three years. On November 1, 1989 the Ministry of Defence gave its approval to the petitioner of the petitioner as Chairman, BBMB. On the same day, petitioner assumed the charge of the post. It is the case of the petitioner that the Ministry of Power, Government of India, New Delhi determined the terms and conditions of his appointment as Chairman, BBMB w.e.f. November 1, 1989 in consultation with the Ministry of Defence which were concurred by the Finance Branch, Department of Power. Condition No. 6 relating to retirement benefits reads thus:
"Leave, provident fund/retirement benefits will continue to be governed by the rules as applicable to Defence Service Officers of comparable grade and status ...
.........The comparable grade and status of Defence Officers @ Rs. 7600/- was that of Lt. General viz. Rs. 7300-7600."
3. It is further the case of the petitioner that the Military Secretary, Branch/MS(X), Army Head Quarters, New Delhi further promoted the petitioner as substantive Major General on January 10, 1991 and he was also given seniority in the Army as Major General retrospectively w.e.f. May 1, 1990 thereby making him senior most officer in his batch. Vide order dated August 13, 1992 tenure of the petitioner as Chairman, BBMB was extended upto February 28, 1995 on the same terms and conditions by the Ministry of Power. On February 28, 1995 petitioner was reemployed as Chairman, BBMB for two years after his retirement from Army w.e.f. March 1, 1995 to February 28, 1997 by the Government of India, Ministry of Power on the terms and conditions as contained in the letter dated March 23, 1995. On August 31, 1997 petitioner relinquished the charge from the office of Chairman, BBMB.
4. It is the case of the petitioner that in view of the conditions laid down by the Government of India in its letter dated October 12/16, 1990, BBMB was under an obligation to make contribution in respect of pension and leave salary contribution payable to the petitioner in respect of the period he worked in BBMB. On November 23, 1994 BBMB sent a draft of Rs. 57561/~ towards its contribution payable to the Army Authorities in respect of pension and leave salary contribution for the period petitioner worked in BBMB. On November 24, 1994 petitioner sent a letter to the Controller of Defence Accounts claiming pensionary benefits on the basis of pay @ Rs. 7600/- per month. However, on December 8, 1994 the office of Defence Accounts returned the draft of Rs. 57561/- and invited the attention of the petitioner to DO letter dated February 7, 1994. On August 3, 1995 the BBMB again sent fresh draft towards contribution of pension and leave salary for the period of 1.11.1989 to 28.2.1995 on the basis of basic pay of Rs. 7600/-. The Controller of Defence Accounts accepted the draft aforesaid on September 12, 1995. The Controller of Accounts (Pension) sent the pension payment order of the petitioner issued by respondent No. 5 wrongly fixing his pension by treating the average emoluments for last ten months as Rs. 6992.26 instead of Rs. 7600/- per month. The petitioner, therefore, requested the Ministry of Power to take up the matter with the Ministry of Defence and refix his pension by treating his average emoluments as Rs. 7600/- per month on the same lines as was done in the case of Major General B.N. Kumar and in view of the terms and conditions of his appointment vide letter dated January 5, 1996 the Ministry of Defence declined the request of the petitioner to allow him pension by treating his last average emoluments as Rs. 7600/- per month. It is in these circumstances that the order aforesaid has been challenged.
5. The main and in fact only contention of learned counsel for the petitioner is that pension of the petitioner has to be fixed on the basis of his last drawn average emoluments as he was getting from BBMB, i.e. Rs. 7600/- per month as per condition No. 6 of the letter dated June 6, 1990, issued by the Ministry of Power, Government of India, determining the terms and conditions of his appointment as Chairman, BBMB w.e.f. November 1, 1989. Clause 6 has since already been reproduced in the earlier part of the judgment.
6. Pursuant to notice issued by this Court, respondents 1 to 6 have entered defence and filed written statement contesting the cause of the petitioner. It has, inter alia, been pleaded that the petitioner has been granted pension by the Controller of Defence Accounts (Pension), Allahabad (DDA)(P) correctly in accordance with the rules in force and there is no ground for upward revision of his pension. At the time of superannuation, the petitioner was holding the rank of Major General and he was rightly been granted pensionary benefits on the basis of reckonable emoluments which he might have drawn as a Major General in Army. It is further the case of the respondents that it was clearly mentioned in the terms and conditions of petitioner's appointment letters Annexures P3 and P4 that for the purpose of leave, provident fund and retirement benefits, the officer will continue to be governed by the rules as applicable to Defence Service Officers on comparable grade and status. Petitioner had been granted pension as admissible in terms of note 5 below para 3 of Government of India, Ministry of defence letter dated October 30, 1987, which reads thus :-
"Where an officer is serving in organisation other than the Armed Forces, the actual pay and allowances drawn during such service shall not be treated as emoluments but the basic pay (plus NPA and the rank pay, if any,) which he/she would have drawn in the Armed Forces, had he/she not been on such service, shall alone be treated as emoluments reasonable for pensionary benefits.
7. It is further the case of respondents that the provisions of CCS(P) Rules are not applicable to the petitioner as he is governed by the rules and regulations applicable to the officer in Army.
8. We have heard learned counsel for the parties and gone through the records of the case. We are of the view that there is no merit in the only contention of the learned counsel for the petitioner, noted above. Surely, petitioner being governed by the Army Rules regarding pension, cannot stake claim to the pensionary benefits that may be admissible to him from Army on the post from which he retired being on deputation after retirement from Army. The army rules do cater for a situation as is in hand. Note 5 below para 3 of the Government of India, Ministry of defence letter dated October 30, 1987, which has been reproduced above, would clearly reveal that where an officer is serving in an organisation, other than the armed forces, the actual pay and allowances drawn during such service shall not be treated as emoluments. Only basic pay plus NPA and the rank pay, if any, which such army officer would have drawn in armed force, shall alone be treated as emoluments reasonable for pensionary benefits. Further, as per conditions of petitioner's appointment, he was to continue to be governed by the Rules as applicable to the army officers on comparable grade and status.
9. Finding no merit in this petition, we dismiss the same in limine, leavinig, however, the parties to bear their own costs.