Andhra HC (Pre-Telangana)
1.Govt. Of A.P. & Others vs T.Gangadhar & Others on 17 April, 2014
Bench: K.C.Bhanu, Anis
THE HON'BLE SRI JUSTICE K.C.BHANU AND THE HONBLE SMT JUSTICE ANIS WRIT PETITION Nos.39090 of 2012 and batch 17-04-2014 1.Govt. of A.P. & others .Petitioners T.Gangadhar & others .Respondents Counsel for the Appellant: Additional Advocate General. Counsel for the Respondent: Mr. A.V.Vijaya Kumari <Gist : >Head Note: ? Cases referred: 1. AIR 1990 SC 285 2.2005 (2) ALD 1 3.(2005) 6 Supreme Court Cases 754 4.(2008) 2 Supreme Court Cases 639 5.2006 (2) ALT 354 6.2003 (2) KarLJ 626 7.(2013) 7 Supreme 226 8.(1999) 7 Scale 4 9.AIR 1989 SC 1933 10.AIR 2012 SC 2728 11.(2006) 1 Supreme Court Cases 275 12.AIR 1968 Supreme Court 647 13.AIR 2008 Supreme Court 863 14.(2010) 4 Supreme Court Cases 393 AIR 1990 SC 285 2005 (2) ALD 1 (2005) 6 Supreme Court Cases 754 (2008) 2 Supreme Court Cases 639 2006 (2) ALT 354 2003 (2) KarLJ 626 (2013) 7 Supreme 226 (1999) 7 Scale 4 AIR 1989 SC 1933 AIR 2012 SC 2728 (2006) 1 Supreme Court Cases 275 AIR 1968 Supreme Court 647 AIR 2008 Supreme Court 863 (2010) 4 Supreme Court Cases 393 THE HONBLE SRI JUSTICE K.C.BHANU AND THE H0NBLE SMT JUSTICE ANIS WRIT PETITION Nos.39090 of 2012 and batch WRIT PETITION Nos.39090 of 2012, 4805 of 2013, 8378 of 2012, 7647 of 2012, 4800 of 2012, 4786 of 2013, 4801 of 2013, 30314 of 2013, 30315 of 2013, 30316 of 2013, 34006 of 2013, 34007 of 2013, 34008 of 2013, 34009 of 2013, 34012 of 2013, 34220 of 2013, 37544 of 2013, 30317 of 2013 and 30318 of 2013 COMMON ORDER :
(per the Honble Sri.Justice K.C.Bhanu) Writ Petition Nos. 39090 of 2012, 4805 of 2013, 30314 of 2013, 30315 of 2013, 30316 of 2013, 34006 of 2013, 34007 of 2013, 34008 of 2013, 34009 of 2013, 34012 of 2013, 34220 of 2013, 37544 of 2013, 30317 of 2013 and 30318 of 2013 are filed by the Principal Secretary to the Government (R&E), Finance Department, Government of Andhra Pradesh, Hyderabad, challenging the Common Order dated 12.09.2012 in Original Application (O.A.) Nos. 8491 of 2011, 5229 of 2011, 8630 of 2011, 8611 of 2011, 5301 of 2011, 5727 of 2011, 7743 of 2011, 7748 of 2011, 1280 of 2012, 4340 of 2012, 5724 of 2011, 8952 of 2011, 7741 of 2011 and 10259 of 2011 respectively, which were disposed of vide Common Order in O.A. Nos. 9548 of 2011 and batch on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad (for short, the Tribunal).
2. Writ Petition Nos. 8378 of 2012, 7647 of 2012, 4800 of 2013, 4786 of 2013 and 4801 of 2013 are filed by various employees seeking to declare action of the respondents in not extending the benefit of Pay Revision Commissions, 1999, 2010, 1999, 2005 and 2010 respectively, to them without taking into account their effective date of retirement on the next day of the succeeding month in terms of judgments passed by the Honble Supreme Court of India and this Court and consequently set aside Circular Memo No.10571/87/PC- I/A2/2011, dated 18.06.2011 and declare that the petitioners are entitled to get pension and pensionary benefits as per New Pay Revision, 1999 by reckoning their effective date of retirement as first day of the succeeding month of their last working day along with interest at 9% per annum.
3. For better appreciation of facts, the parties are hereinafter referred to, as they are arrayed in the Original Applications.
4. The case of the applicants, in brief, may be stated as follows:
The applicants in O.A. No.4270 of 2012; applicant nos. 1 to 14 in O.S. No.1283 of 2012; applicant nos. 1 to 54 in O.A. No.9243 of 2011; the sole applicant in O.A. No.9548 of 2011; applicant nos. 1 to 39 in O.A. No.5707 of 2011; applicant nos. 1 to 13 in O.A. No.7743 of 2011; applicant nos. 1 to 52 in O.A. No.8527 of 2011; applicant nos. 1 to 22 in O.A. No.5301 of 2011; applicant nos. 1 to 37 in O.A. No.5706 of 2011; sole applicants in O.A. Nos.8951 of 2011 and 8952 of 2011; applicant nos. 1 to 23 in O.A. No.5622 of 2011; applicant nos. 1 to 36 in O.A. No.5725 of 2011 and the first applicant in O.A. No.5776 of 012 retired from service on 30.06.1998 and they are claiming benefit of Revised Pay Scales of 1999 which came into effect from 01.07.1998.
The applicant nos. 37 and 38 in O.A. No.5725 of 2011; applicant nos. 55 to 64 in O.A. No.9243 of 2011; applicant nos. 40 and 41 in O.A. No.5707 of 2011; applicant nos. 14 to 16 in O.A.No.7743 of 2011; applicant nos.53 to 58 in O.A. No.8527 of 2011; applicant nos. 15 to 23 in O.A. No.1283 of 2012; applicant nos. 23 to 30 in O.A. No.5301 of 2011; applicant nos. 38 to 40 in O.A. No.5706 of 2011; applicant no.24 in O.A. No.5622 of 2011 and applicant no.2 in O.A. No.5776 of 2012, retired from service on 31.03.1999 and they are claiming monetary benefits that were extended to employees under Revised Pay Scales, 1999 with effect from 01.04.1999.
The applicant nos. 1 to 5 in O.A.No.4341 of 2012; applicant nos. 1 to 20 in O.A. No.7748 of 2011; applicant nos.1 to 45 in O.A. No.9558 of 2011; applicant nos. 1 to 17 in O.A. No.1280 of 2012; applicant nos. 1 to 37 in O.A. No.5299 of 2011; applicant nos. 1 to 37 in O.A. No.5704 of 2011; applicant nos. 1 to 47 in O.A. No.5702 of 2011; applicant nos. 1 to 43 in O.A. No. 9473 of 2011; applicant nos. 1 to 68 in O.A. No. 8491 of 2011; applicant nos. 1 to 40 in O.A. No.5727 of 2011; sole applicant in O.A. No.8006 of 2011 and the applicant nos. 1 to 35 in O.A. No.5623 of 2011 retired from service on 30.06.2003 and they are claiming the benefit of Revised Pay Scales, 2005 which came into force with effect from 01.07.2003.
Applicant no.6 in O.A.No.4341 of 2012; applicant nos. 21 to 25 in O.A. No.7748 of 2011; applicant nos. 46 to 57 in O.A. No.9558 of 2011; applicant nos. 18 and 19 in O.A. No.1280 of 2011; applicant no.38 in O.A. No.5299 of 2011; applicant nos. 38 to 42 in O.A. No.5703 of 2011; applicant nos. 48 and 49 in O.A. No.5702 of 2011; applicant nos. 44 to 61 in O.A. No.9473 of 2011; applicant nos. 69 to 78 in O.A. NO.8491 of 2011; applicant nos. 41 and 42 in O.A. No.5727 of 2011; applicant nos. 36 to 39 in O.A. No.5623 of 2011, and sole applicant in O.A. No.5961 of 2011 retired from service on 31.03.2005 and they are claiming monetary benefits of Revised Pay Scales, 2005 which came into force with effect from 01.04.2005.
Sole applicants in O.A. Nos. 10259 of 2011, 6932 of 2011, 6933 of 2011, 8123 of 2011, 8007 of 2011 and 10306 of 2011; all applicants in O.A. No.10049 of 2011; applicant nos. 1 to 13 in O.A. No.4340 of 2012; applicant nos. 1 to 43 in O.A. No.5724 of 2011; applicant nos. 1 to 35 in O.A. No.5703 of 2011; applicant nos. 1 to 26 in O.A. No.5957 of 2011; applicant nos. 1 to 40 in O.A. No.8630 of 2011; applicant nos. 1 to 57 in O.A. No.5942 of 2011; applicant nos. 2 to 35 in O.A. No.5669 of 2011; applicant nos. 1 to 23 in O.A. No.7741 of 2011; applicant nos. 1 to 49 in O.A. No.8560 of 2011; applicant nos.1 to 22 in O.A. No.8611 of 2011; applicant nos. 1 to 46 in O.A. No.9564 of 2011; applicant nos. 1 to 30 in O.A. No.1282 of 2012; applicant nos. 1 to 34 in O.A. No.9439 of 2011; applicant nos. 1 to 31 in O.A. No.9431 of 2011; applicant nos. 1 to 28 in O.A. No.5705 of 2011; applicant nos. 1 to 16 in O.A. No.5300 of 2011 and applicant nos. 2 to 7 in O.A. No.6274 of 2011 retired from service on 30.06.2008 and they are claiming benefit of Revised Pay Scales, 2010 which came into force with effect from 01.07.2008.
Sole applicants in O.A. Nos. 5892 of 2011, 4262 of 2012 and 5787 of 2011; applicant nos. 14 to 17 in O.A. No.4340 of 2012; applicant nos. 44 to 54 in O.A. No.5724 of 2011; applicant nos. 36 to 50 in O.A. No.5703 of 2011; applicant nos. 27 to 47 in O.A. No.5957 of 2011; applicant nos.41 to 53 in O.A. nos. 8630 of 2011; applicant nos. 58 to 67 in O.A. No.5942 of 2011; applicant nos. 36 to 40 in O.A. No.5669 of 2011; applicant nos. 24 to 33 in O.A. No.7741 of 2011; applicant nos. 50 to 54 in O.A. No.8560 of 2011; applicant nos. 23 to 40 in O.A. No.8611 of 2011; applicant nos. 47 to 63 in O.A. No.9564 of 2011; applicant nos. 31 to 39 in O.A. No.1282 of 2012; applicant nos. 35 to 52 in O.A. No.9439 of 2011; applicant nos. 32 to 53 in O.A. No.9431 of 2011; applicant nos. 29 to 42 in O.A. No.5705 of 2011; applicant nos. 17 to 20 in O.A. No.5300 of 2011 and applicant nos. 31 to 42 in O.A. No.5943 of 2011, retired from service on 31.01.2010 and they are claiming the monetary benefit of Revised Pay Scales, 2010 which came into force with effect from 01.02.2010.
5. The Tribunal relied upon the judgment of the Honble Supreme Court of India in S.Banerjee v. Union of India ; a Full Bench decision of this Court in Principal Accountant General, Andhra Pradesh, Hyderabad & another v. C.Subba Rao , and also unreported decision of this Court dated 02.02.2008 in Writ Petition No.5182 of 2011 and another unreported decision of this Court dated 02.09.2008 in Writ Petition No.5182 of 2001 as confirmed in Writ Appeal No.552 of 2013 vide order dated 08.08.2012, and granted the reliefs as prayed for.
6. The Tribunal held that the applicants are entitled to get benefit of revised pay scales which came into force from the date on which they ceased to be government servants from the midnight of the previous month and they would acquire status of pensioners from the first day of the next month, and that since the retirement of the applicants on the afternoon of the last day of the previous month is held to be treated as retirement from the forenoon of the 1st day of the next month, the same analogy is applicable to the cases where the monetary benefit is to be extended from the 1st day of the next month, and so the applicants are entitled for reliefs as prayed for insofar as extending monetary benefits i.e. gratuity, earned leave encashment and commutation of pension at the revised rates of respective pay revision commissions is concerned, and accordingly, allowed the Original Applications.
7. The point that arise for consideration in these Writ Petitions is whether a retired government servant is entitled for the monetary benefit of revised gratuity, encashment of earned leave and commutation of pension which come into force after the applicants retired from service after attaining age of superannuation ?
8. The Andhra Pradesh Revised Scales of Pay Rules, 1999 (for short, RPS Rules, 1999) came into force on 01.07.1998 as per G.O. (P) No.114, Finance and Planning (FW: P.C.-I) Department, dated 11.08.1999. These Rules shall be deemed to have come into force on 01.07.1998. Similarly, the Andhra Pradesh Revised Scales of Pay Rules, 2005 (for short, RPS Rules, 2005) came into force on 01.07.2003 as per G.O. (P) No.213, Finance (P.C.I) Department, dated 27.08.2005. Similarly, the Andhra Pradesh Revised Scales of Pay Rules, 2010 (for short, RPS Rules, 2010) came into force on 01.07.2008 as per G.O. Ms. No.52, Finance (P.C.I) Department, dated 25.02.2010. Rule 8 of the RPS Rules, 1999 provides that if any difficulty arises in giving effect to the provisions of these Rules, the Government may by order make such provisions or give such directions as appear to them to be necessary for removing the difficulty. Similar Rule is incorporated in RPS Rules, 2005 and RPS Rules, 2010.
9. The factual matrix is not in dispute. The applicants retired from service on the dates mentioned in the aforesaid paragraph no.4 viz. one day prior to the RPS Rules, 1999, RPS Rules, 2005 and RPS Rules, 2010 came into force. It is the specific case of the Government that all the applicants retired from service one day prior to the aforesaid Rules came into effect and based on the pay drawn by them prior to the Rules came into force, their respective pensions have been fixed besides granting all retirement benefits. It is not in dispute before this Court that there is no arbitrary action in putting a cut off date for implementation of the revision of pay scales and for calculation of other consequential benefits such as gratuity, earned leave encashment and commutation of pension, etc. On this aspect, the Tribunal also relied upon a decision in State of Punjab & others v. Amar Nath Goyal & others , wherein it is held thus (para 33):
More recently, in Veeraswamy {(1999) 3 Supreme Court Cases 414} this Court observed that, financial constraints could be a valid ground for introducing a cut-off date while implementing a pension scheme on a revised basis. In that case, the pension scheme applied differently to persons who had retired from service before 1.7.1986, and those who were in employment on the said date. It was held that they could not be treated alike as they did not belong to one class and they formed separate classes.
10. Learned senior counsel Sri D.Prakash Reddy appearing for some of the unofficial respondents contended that though some Government servants retired on the last day of the month, they became pensioners on the following day onwards and therefore they are entitled for the benefits under revision of pay scales.
11. The learned senior counsel Sri M.Surender Rao appearing for the respondents/applicants contended that if an employee retires from service on the afternoon of the last day of the month, it is deemed that he has continued in service till mid-night of the day and he must be deemed to have ceased from service or to have actually retired from service from the next day of his last working day. On this aspect, the Tribunal relied on a decision in S.Banerjees case (1 supra) wherein it is held thus:
So the employees retiring on January 1, 1986 will be entitled to the benefit under paragraph 17.3. The question that arises for our consideration is whether the petitioner has retired oil 1/01/1986. We have already extracted the order of this Court dated 6/12/1985 whereby the petitioner was permitted to retire voluntarily from the service of the Registry of the Supreme Court with effect from the forenoon of 1/01/1986. It is true that in view of the proviso to rule 5(2) of the Rules, the petitioner will not be entitled to any salary for the day on which he actually retired. But, in our opinion. that has no bearing on the question as to the date of retirement. Can be said that the petitioner retired on 31/12/1985? The answer must be in the negative. Indeed, Mr. Anil Dev Singh, learned Counsel appearing on behalf of the respondents, frankly conceded that the petitioner could not be said to have retired on 31/12/1985. It is also not the case of the respondents that the petitioner had retired from the service of this Court on 31/12/1985. Then it must be held that the petitioner had retired with effect from 1/01/1986 and that is also tile order of this Court dated 6/12/1985. It may be that the petitioner had retired with effect from the forenoon of 1/01/1986 as per the said order of this Court, that is to say as soon as 1/01/1986 had commenced the petitioner retired. But, nevertheless, it has to be said that the petitioner had retired on 1/01/1986 and not on 31/12/1985. In the circumstances, the petitioner comes within the purview of paragraph 17.3 of the recommendations of the Pay Commission.
.
In the circumstances, the writ petition is allowed and the respondents are directed to calculate and pay to the petitioner within three months from today his pension in accordance with the recommendation of the Pay Commission as contained in paragraph 17.3 extracted above. There will, however, be no order as to costs.
The above decision has no application to the facts of the present cases. That is a case where the employee therein was permitted to retire voluntarily from service of the Registry of the Honble Supreme Court of India with effect from forenoon of 01.01.1986. As per paragraph no.17.3 of the 4th Central Pay Commission report, in the case of employees who retire during the period from 01.01.1986 to 30.09.1986, the Government may consider treating the entire Dearness Allowance drawn by them up to 31.12.1985 as pay for pensionary benefits. Considering the language used in the 4th Central Pay Commission report, if an employee retires on 01.01.1986, the Government may consider treating the entire Dearness Allowance as pay for pensionary benefits. Admittedly, in that case, the employee was permitted to retire voluntarily on 01.01.1986. Till mid-night on 01.01.1986, he is deemed to be in service and from early hours on 02.01.1986, he can be termed as retired pensioner. In that case, the petitioner therein comes within the purview and ambit of relevant paragraph of the 4th Central Pay Commission report and so, it was held that the employee therein is entitled for the benefits under the 4th Central Pay Commission. Admittedly, in this case, all the unofficial respondents retired from service on the last day of the month.
12. Learned senior counsel M.Surender Rao appearing for the respondents/applicants placed strong reliance on a decision in C.Subba Raos case (2 supra), wherein it is held in point No.1 thus:
We have already held that a Government servant retiring on the last working day of the month shall be deemed to have ceased to be Government employee with effect from midnight of that day and immediately after commencement of the next day i.e. after midnight 12O clock he becomes a pensioner. Though he is paid pension, he shall not be deemed to be on duty as a Government servant and therefore annual increment cannot be sanctioned to such retired Government servant.
With regard to point no.2 in the above decision viz. whether a retired government servant is entitled for revised rate of Dearness Allowance which comes into force after such Government servant retires from service on attaining age of superannuation, it is held thus:
This question would arise only in Writ Petition No.22042 of 2003 as the respondent therein also claimed DA instalments at 49%. As held by us supra, a Government servant who would be retiring on the last day of the month would ceased to be Government servant by midnight of that day and he would acquire status of pension and therefore he would be entitled for all the benefits given to a pensioner with effect from first day of the succeeding month. In Banerjee case (supra), the Supreme Court laid down that as soon as first day of the succeeding month commenced, petitioner retired and gave the benefit of enhanced DA. The same view has been consistently followed in subsequent decisions as well. To that extent, it must be held that the learned Tribunal has taken correct view.
From the above decision, it is clear that a Government servant would acquire status of pensioner after midnight of the last day of the month and he would cease to be a Government servant by midnight. There is no dispute about the proposition of law laid down by the Full Bench of this Court. We are bound by the ratio laid down therein. By virtue of revision of pay scales, if benefits are given to the pensioner with effect from a particular date, he is entitled for the same. Even in the above decision, no ratio is laid down that when a Government servant retires from service on the last day of the month, he is entitled for the benefits in terms of revision of pay scales which came into force on the next day. Learned counsel representing the Advocate General placed strong reliance on a decision in Achhaibar Maurya v. State of Uttar Pradesh & others , wherein it is held thus:
A benefit of getting an extended period of service must be conferred by a statute. The legislature is entitled to fix a cut-off date. A cut-off date fixed by a statute may not be struck down unless it is held to be arbitrary. What would, therefore, be an employees last working date would depend on the wordings of the Rules.
The Full Bench decision of this Court in C.Subba Raos case (2 supra) has no application to the facts of the present case. There is no dispute with regard to cut off date in the revision of pay scales. The language used in the Rules has to be taken into consideration to ascertain whether the applicants are entitled for the benefits as mentioned in the revision of pay scales Rules or not.
13. Learned senior counsel M.Surender Rao appearing for the respondents/applicants placed strong reliance on an unreported decision of this Court dated 29.07.2011 in Writ Petition No.16613 of 2006. In the said decision, by following the judgment dated 02.09.2008 in Writ Petition No.5182 of 2001 and the Full Bench decision of this Court in C.Subba Raos case (2 supra), a learned single judge of this Court directed the respondents therein to consider claim of the petitioner therein for fixing his pension in terms of A.P. Transco Revised Pay Scales, 2006 and pass appropriate orders in accordance with law. That judgment was confirmed by a Division Bench of this Court in judgment dated 08.08.2013 in Writ Appeal No.552 of 2013. In the above decision, the decision of the Apex Court in S.Banerjees case (1 supra) and the Full Bench decision of this Court in C.Subba Raos case (2 supra) have been followed.
14. Similarly, the learned senior counsel M.Surender Rao appearing for the respondents/applicants placed strong reliance on an unreported decision of this Court dated 02.09.2008 in Writ Petition No.5182 of 2001, wherein a learned single Judge of this Court held thus:
From the material on record, it could be seen that without considering the specific submissions made by the petitioner in his representation claiming for the pensionary and other benefits as per the G.Os, the respondent simply rejected the claim of the petitioner under the impugned memo stating that the G.Os containing the pensionery benefits and gratuity have come into force w.e.f 1.4.1999 whereas, the petitioner retired from service on 31.1.1999, therefore, he is not entitled for the benefit. Such rejection, in my view is without application of mind. The analogy of the case relied on by the learned counsel appearing for the petitioner stated supra, would make it clear that the petitioner, who retired from service on one day prior to the relevant G.Os coming into existence, would be entitled for the benefit contemplated under the said G.Os. Therefore, the petitioner is entitled for the benefit claimed by him.
In the above decision also, the learned single Judge of this Court followed the decision of the Apex Court in S.Banerjees case (1 supra) and the Full Bench decision of this Court in C.Subba Raos case (2 supra).
15. Learned senior counsel M.Surender Rao appearing for the respondents/applicants placed strong reliance on a decision of this Court in Union of India, Ministry of Food and Agriculture v. P.S.R.Kumar Sinha , wherein it is held thus:
While considering this fact, the tribunal specifically held that the orders issued by the Government of India make it clear that irrespective of the date of retirement, all the pensioners are entitled to the pension of not less than 50% of the minimum pay in the revised scales of pay introduced with effect from 1.1.1996 of the post last held by them and since the word irrespective of the date of retirement is mentioned in the order all the pensioners are entitled to the benefit of minimum pay in the revised scale of pay with effect from 1.1.1996, and as the respondents retired from service with effect from 31.12.1995, their pensionary benefits are to be fixed on the basic pay of Rs.14,940/-, the revised basic pay.
Even from the above decision, it is clear that it is a case where the language used in the Government Order is very clear that irrespective of date of retirement, all pensioners are entitled for the benefits given under the revised pay scale.
16. The learned senior counsel also relied on a decision in Trikannad R.S. v. Vijaya Bank . The case involved consideration of the question as to whether a Government servant completing the age of his superannuation on 31/03/1995 and relinquishing charge of his office in the afternoon of that day is deemed to have been retired from service on superannuation with effect from 31/03/1995 itself and with effect from 1/04/1995 he was a retired employee. Basing on the Regulation, which is relevant in that case, it is held that the petitioner therein is entitled for the pension in terms of the pension regulation. In that case, the Regulation specifically provides that if an employee had to be retired before the first day of November, 1993, he is entitled for the pensionary benefits in terms of the pension regulations.
17. Learned senior counsel appearing for the respondents/ applicants contended that Full Bench of this Court in C.Subba Raos case (2 supra) and Division Bench decision of this Court in Writ Appeal No.552 of 2013 vide order dated 08.08.2012 are binding precedents on this court. For that proposition, he relied on the following decisions.
a) in G.L. Batra v. State of Haryana , wherein it is held thus:
(para 15).
In State of Bihar v. Kalika Kuer @ Kalika Singh and others AIR 2003 SC 2443 this Court held that when an earlier decision may seems to be incorrect to a Bench of a coordinate jurisdiction considering the question later, on the ground that a possible aspect of the matter was not considered or not raised before the Court or more aspects should have been gone into by the Court deciding the matter earlier but it would not be a reason to say that the decision was rendered per incuriam and liable to be ignored. The earlier judgment may seem to be not correct yet it will have the binding effect on the latter bench of coordinate jurisdiction. The Court held that easy course of saying that earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two ways either to follow the earlier decision or refer the matter to a larger Bench to examine the issue, in case it is felt that earlier decision is not correct on merits. In this respect reference may also be made to the Judgment of this Court in Union of India and others v. Godfrey Philips India Ltd. AIR 1986 SC 806, Sundarjas Kanyalal Bhathija and others v. The Collector, Thane, Maharashtra and others AIR 1990 SC 261 and Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel AIR 1968 SC 372 etc.
b) in S.I.Rooplal & another v. Lt. Governor through Chief Secretary, Delhi & others , wherein it is held thus: (para 12).
At the outset, we must express our serious dissatisfaction in regard to the manner in which a Coordinate Bench of the tribunal has overruled, in effect, an earlier judgment of another Coordinate Bench of the same tribunal. This is oppposed to all principles of judicial discipline. If at all, the subsequent Bench of the tribunal was of the opinion that the earlier view taken by the Coordinate Bench of the same tribunal was incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two Coordinate Benches on the same point could have been avoided. It is not as if the latter Bench was unaware of the judgment of the earlier Bench but knowingly it proceeded to disagree with the said judgment against all known rules of precedents. Precedents which enunciate rules of law form the foundation of administration of justice under our system. This is a fundamental principle which every Presiding Officer of a Judicial Forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate Court is bound by the enunciation of law made by the superior Courts. A coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement. This Court in the case of Tribhuivandas Purshottamdas Thakur v. Ratilal Motilal Patel, (1968) 1 SCR 455 : (AIR 1968 SC 372) while dealing with a case in which a Judge of the High Court had failed to follow the earlier judgment of a larger Bench of the same Court observed thus (para 11 of AIR) :-
"The judgment of the Full Bench of the Gujarat High Court was bidning upon Raju, J. If the learned Judge was of the view that the decision of Bhagwati, J. in Pinjare Karimbhai's case (1962 (3) Guj LR 529) and of Macleod, C.J., in Haridas's case (AIR 1922 Bom 149) did not lay down the correct law or rule of practice, it was open to him to recommend to the Chief Justice that the question be considered by a larger Bench. Judicial decorum, propriety and discipline required that he should not ignore it. Our system of administration of justice aims at certainty in the law and that can be achieved only if Judges do not ignore decisions by Courts of coordinate authority or of superior authority. Gajendragadkar, C. J. observed in Lala Bhagwan v. Ram Chand, (AIR 1965 SC 1767).
"It is hardly necessary to emphasis that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be re-considered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench, or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety."
c) in Union of India & another v. Raghubir Singh (dead) by LRs. , wherein it is held thus: (para 28) WHAT then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case raising the same point subsequently before a Division Bench of a smaller number of Judges? There is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the Courts sanctified by repeated affirmation over a century of time. It cannot be doubted that in order to promote consistency and certainty in the law laid down by a superior Court, the ideal condition would be that the entire court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so. But having regard to the volume of work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in Divisions, each Division being constituted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other considerations which the Chief Justice, in whom such authority devolves by convention, may find most appropriate. It is in order to' guard against the possibility of inconsistent decisions on points of law by different Division Benches that the rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges. We may refer to a few of the recent cases on the point. In John Martin v. State of West Bengal, (1975) 3 SCR 211 (AIR 1975 SC 775) a Division Bench of three Judges found it right to follow the law declared in Haradhan Saha v. State of West Bengal, (19751) 1 S CR778:
(AIR 1974 SC 2154) decided by a Division Bench of five Judges, in preference to Bhut Nath Mate v. 'State of West Bengal, AIR 1974 SC 806 decided by a Division Bench of two Judges. Again in Smt. Indira Nehru Gandhi v. Raj Narain, (1976) 2 SCR 347 : (AIR 1975 SC 2299) Beg, J. held that the Constitution Bench of five Judges was bound by the Constitution Bench of thirteen Judges in His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala' 1973 Suppl SCR I : ( ' AIR 1973 SC 1461). In Ganapati Sitaram Belvalkar v. Waman Shripad Mage (Since Dead) Through Lrs. (1981) 4 SCC 143: AIR 1981 SC 1956), this Court expressly stated that the view taken on a point of law by a Division Bench of four Judges of this Court was binding on a Division Bench of three Judges of the Court. And in Mattulal v. Radhe Lal, (1975) 1 SCR 127 : (AIR 1974 SC 1596) this Court specifically observed that where the view expressed by two different Division Benches of this Court could not be reconciled, the pronouncement of a Division Bench of a larger number of Judges had to be preferred over the decision of a Division Bench of a smaller number of Judges. This Court also laid down in Acharaya Maharajshri Narandraprasadji Anandprasadji Maharaj v. State of Gujarat (1975) 2 SCR 317 : (AIR 1974 SC 2098), that even where the strength of two differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or otherwise of the views of the other. The principle was re-affirmed in Union of India v. Godfrey Philips. India Ltd (1985) 4 SCC 369: (AIR 1986 SC
806) which noted that a Division Bench of two Judges of this Court in Jit Ram v. State of Haryana, (1980) 3 SCR 689 :
(AIR 1980 SC 1285) had differed from the view taken by an earlier Division Bench of two Judges in Motilal Padampat Sugar Mills v. State of U. P., (1979) 2 SCR 641 : (AIR 1079 SC 621), on the point whether the doctrine of promissory estoppel could be defeated by invoking the defence of executive necessity, and holding that to do so was wholly unacceptable reference was made to the well accepted and desirable practice of the later Bench referring the case to a larger Bench when the learned Judges found that the situation called for such reference.
d) in U.P. Power Corporation v. Rajesh Kumar , wherein it is held thus: (para 14) The aforesaid pronouncements clearly lay down what is expected from the Judges when they are confronted with the decision of a Co-ordinate Bench on the same issue. Any contrary attitude, however adventurous and glorious may be, would lead to uncertainty and inconsistency. It has precisely so happened in the case at hand. There are two decisions by two Division Benches from the same High Court. We express our concern about the deviation from the judicial decorum and discipline by both the Benches and expect that in future, they shall be appositely guided by the conceptual eventuality of such discipline as laid down by this Court from time to time. We have said so with the fond hope that judicial enthusiasm should not obliterate the profound responsibility that is expected from the Judges.
There is no dispute about the law laid down in the above decisions of the Honble Supreme Court of India. If any enunciation of law laid down by a Co-ordinate Bench or a Larger Bench, another Co-ordinate Bench cannot pronounce a judgment contrary to the declaration of law laid down by the Bench. Therefore, if a law is pronounced by a Division Bench in relation to a case raising on the same point, the practice is to follow the same, and in case if one Division Bench disagrees with the law laid down by another Division Bench, the matter has to be placed before the Honble Chief Justice for constituting a Larger Bench.
18. In State of Orissa & others v. Md. Illiyas , it is held thus:
(para 12) WHEN the allegation is of cheating or deceiving, whether the alleged act is wilful or not depends upon the circumstances of the concerned case and there cannot be any strait jacket formula. The High Court unfortunately did not discuss the factual aspects and by merely placing reliance on earlier decision of the Court held that prerequisite conditions were absent. Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and forthis reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates - (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts;
(ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent. (See: State of Orissa v. Sudhansu Sekhar Misra and Ors. and Union of India and Ors. v.
Dhanwanti Devi and Ors.). A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in Act of Parliament. In Quinn v. Leathern, Earl of Halsbury LC observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides.
19. In State of Orissa v. Sudhansu Sekhar Misra & others , it is held thus:
A decision is only an authority for what it actually decides. What is of the essence in a decision is its ration and not every observation found therein nor what logically follows from the various observations made in it. On this topic, this is what Earl of Halsbury LC said in Quinn v. Leathem, 1901 AC 495.
20. In Govt. of Karnataka & Ors. V. Gowramma & Ors. it is held thus: (paras 10 & 11).
COURTS should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclids theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. V. Horton (1951 AC 737 at p. 761), lord Mac Dermot observed :
The matter cannot, of course, be settled merely by treating the ipsissima vertra of willes, J as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge.
12. IN Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, "lord Atkins speech. . . . . is not to be treated as if it was a statute definition. It will require qualification in new circumstances. Megarry, J in (1971) 1 WLR 1062 observed: One must not, of course, construe even a reserved judgment of Russell L. J. as if it were an Act of Parliament". And, in Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said:
There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case.
Whether a decision contains the statement of principles of law applicable to the legal problems disclosed by the facts or not, is the vital element in the decision. This indeed is the ratio decidendi. It is not everything said by the Judge when giving judgment that constitutes a precedent.
21. It is also pertinent to refer to a decision in Manish Goel v. Rohini Goel wherein it is held thus: (para 14) GENERALLY, no Court has competence to issue a direction contrary to law nor the Court can direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. (Vide State of Punjab and Ors. v. Renuka Singla and Ors. (1994) 1 SCC 175 : (1994 AIR SCW 330); State of U.P. and Ors. v. Harish Chandra and Ors., AIR 1996 SC 2173 :
(1996 AIR SCW 2785); Union of India and Anr. v. Kirloskar Pneumatic Co. Ltd., AIR 1996 SC 3285 : (1996 AIR SCW 2398); Vice-Chancellor, University of Allahabad and Ors. v.
Dr. Anand Prakash Mishra and Ors. (1997) 10 SCC 264; and Karnataka State Road Transport Corporation v. Ashrafulla Khan and Ors., AIR 2002 SC 629) : (2002 AIR SCW 231).
From the above decision, it is clear that a Court cannot issue a direction which is contrary to law or a rule or a statute.
22. In the background of the aforesaid case law, now it has to be seen whether the impugned order of the Tribunal is correct ?
23. In the case on hand, admittedly, the applicants retired from service on attaining the age of superannuation on the last working day of the month. They acquired the status of pensioners after midnight of the last day of a month. The Revised Pay Scales, 1999, 2005 and 2010 came into force with effect from the next day of retirement of the applicants, as the case may be.
24. It is not in dispute before this Court that RPS Rules, 1999 came into force with effect from 01.07.1998 vide G.O. (P) No.114, Finance and Planning (FW:P.C.-I) Department, dated 11.08.1999. Government issued G.O. (P) No.156, Finance & Planning (F.W.Pension-1) Department, dated 16.09.1999 whereunder certain weightage was given to the pensioners retired prior to 01.01.1974; pensioners retired between 01.01.1974 and 31.03.1978, and pensioners retired between 01.04.1978 and 30.06.1986. Paragraph no.4 thereof reads that after careful examination of the report, the Government ordered that the existing pension/family pension/ compassionate pension/compassionate allowance in respect of those pensioners who retired or died while in service before 01.07.1998, and who opted for the pre-revised scales i.e. 1993 pay scales, and 25% of increase in the said basic pension and the Dearness Relief as on 01.07.1998 shall be merged and would be known as Revised Consolidated Pension, and that the pensions of pensioners who retired prior to 01.07.1986 shall be increased with the percentages mentioned therein in addition to the above 25% for consolidation of their revised pensions. Therefore, from the above Government Order, it is very clear that revised consolidated pension would be applicable to the pensioners who retired before 01.07.1998. The pension would be increased with the weightage given in the order in addition to the 25% of the consolidation of the revised pension. In the case on hand, some of the applicants retired from service before 01.07.1998. It is not in dispute before this Court pension of the employees who retired before 01.07.1998 has been fixed in terms of paragraph no.4 of the aforesaid Government Order.
25. Similarly, as per G.O. Ms. No.157, Finance & Planning (FW.PEN.I) Department, dated 16.09.1999, the maximum limit of retirement gratuity has been enhanced to Rs.2,50,000/- from Rs.1,75,000/-. That order came into force from 01.04.1999 and shall apply to the Government servants who retired on or after that date. Admittedly, some of the applicants have not retired on or after 01.04.1999 and some of the applicants retired on 31.03.1999. G.O.Ms. No.4, Finance & Planning (FW-PEN.I) Department, dated 27.10.1999 was issued counting the Dearness Allowance for the purpose of calculation of average emoluments in respect of government servants retired on or after 01.07.1998.
26. Similarly, RPS Rules, 2005 came into effect from 01.07.2003. Some of the applicants retired on 30.06.2003. In terms of the above Rules, Government sanctioned revised consolidated pension and sanctioned Dearness Allowance. In this Government Order also, the words are very clear that existing pension/family pension/ compassionate pension/compassionate allowance in respect of those pensioners who retired or died while in service before 01.07.2003, 16% of increase in basic pension and the Dearness Relief as on 01.07.2003 was ordered to be merged for calculating revised consolidated pension. A clear distinction has been drawn between employees who retired before 01.07.2003 and the employees who retired between 01.07.2003 and 01.04.2005.
27. Under G.O.(P) No.249, Finance (Pension-I) Department, dated 04.10.2005, retirement gratuity was increased from Rs.2,50,000/- to Rs.3,50,000/-. Those orders came into effect from 01.04.2005. That Government Order came into force on 01.04.2005 and shall apply to all government servants who retired or whose death took place on or after that date. So, this enhancement is applicable if the government servant retired from service on 01.04.2005 or thereafter. In view of the fact some of the applicants retired on 31.03.2005, this Government Order has no application to them.
28. The RPS Rules, 2010 came into force on 01.07.2008 as per G.O. Ms. No.52, Finance (P.C.I) Department, dated 25.02.2010. In pursuance of the same, G.O. Ms. No.100, Finance (Pension-I) Department, dated 06.04.2010 was issued sanctioning consolidated pension to the retired employees. The wording in paragraph 4.1 of the said Government Order reads that the existing pension / family pension in respect of those retired or died while in service prior to 01.07.2008 and also in case of family pensioners who are in receipt of family pension as on 01.07.2008 was ordered to be consolidated in terms of the above paragraph. Some of the applicants admittedly retired from service on 01.07.2008. Paragraph no.7 of the said Government Order provides that employees who retired between 01.07.2008 and 31.01.2010 are eligible for revision of their pay in the Revised Pay Scales, 2010 notionally. Admittedly, none of the applicants retired in between the said dates.
29. Similarly, G.O.Ms. No.101, Finance (Pension-I) Department, dated 06.04.2010 was issued enhancing the retirement gratuity from Rs.3,50,000/- to Rs.7,00,000/-. The said order came into force with effect from 01.02.2010 and shall apply to all government servants who retired or whose death took place on or after that date. In this case, admittedly, the applicants have not retired from service on 01.02.2010 or thereafter.
30. In all the Government Orders, the word used is Government Servants but not Pensioners. If the intention of the Government is to extend the benefits under a particular revision of pay scale, then it might have used the word Pensioner. In such a case, all the applicants acquired the status of Pensioners on the date of the revision of pay scales came into force, would be entitled for the benefits. Hence, the Government consciously used the word Government Servant so as to extend the benefits to the Government Servants who retired on a particular date and those who retired after that date, are not eligible for the benefits. There is no ambiguity in the Government Orders as to the persons entitled for the benefits under a particular revision of pay scale.
31. Learned counsel for the unofficial respondents contended that in the absence of any statutory rule, common law principle has to be followed. In Achhaibar Mauryas case (4 supra), it is held thus:
We have, therefore, to determine the cases on the touchstone of statute operating in the field and in absence thereof by common law principle.
There is no dispute about the law laid in the above case. By applying common law principle, it is held in C.Subba Raos case (2 supra), that a conspectus of these common law principles would show that a day commencing after zero hours in the midnight would come to an end with 12O clock midnight the next day, and if something has to be done or something has to be given effect to depending on the day, such a thing has to be given effect to only till midnight of the day and not the next day commencing with after midnight. Even applying common law principle, the applicants retired from service on the last day of the month and though they acquired the status of retired employees or pensioners after midnight of the last day of the month, it can be safely stated that after midnight, they ceased to be government employees and they cannot come within the meaning of government employee. Rule 83 of the Pension Rules provides that pension shall become payable from the date on which a Government servant ceases to be borne on the establishment. In other words, a government servant is entitled for the pension from the next day after the date of retirement.
32. Rule 17 (1) of the Fundamental Rules provides that subject to any exceptions specifically made in the said Rules and to the provision of sub-rule (2), an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties. In view of the above provision, it is clear that he ceases to be an employee of the Government as soon as he retires from service on a particular date.
33. It is not in dispute before this Court that amount of monthly pension will be fixed basing on the pay drawn on the last working day by an employee. As on the date of retirement, the pay scales which are in existence or vogue, shall have to be taken into consideration for the purpose of fixing the pension or arriving for the entitlement of other retirement benefits. If any other retirement benefits are given after the date of retirement in pursuance of coming into force of new pay scales, the benefits under the revised pay scales cannot be extended to a government employee, who ceases to be an employee prior to the date of coming into force of the new revised pay scales. It is not in dispute before this Court that as on the respective dates of retirement of the applicants, the conditions mentioned in the pay scales existing as on the date of their respective dates of retirements have been applied and accordingly the retirement benefits such as fixation of pension, payment of gratuity, consolidated pension and earned leave encashment, etc. were relaxed. RPS Rules, 1999, 2005 and 2010 cannot be extended to the applicants, as the case may be, because they came into force after the employees retired from government service upon superannuation on the last day of the preceding month, that is to say, one day prior to the respective RPS Rules came into effect.
34. The language used in the Government Orders providing RPS Rules, a distinction has been drawn between government servants retired on or after a particular date and before the particular date. Therefore, the finding of the Tribunal that since the applicants retired from 30.06.1998 and whereas Revised Pay Scales, 1999 came into effect from 01.07.1998, they shall be deemed to have retired from service from forenoon of 01.07.1998, etc., is contrary to Rules and the Government Orders indicated above, because they cannot be deemed to have retired from service on the forenoon of 01.07.1998. Though they were termed as pensioners from the forenoon of 01.07.1998, a clear distinction can be drawn between the date of retirement from service and acquiring the status of a pensioner. Therefore, the finding of the Tribunal that the applicants shall be deemed to have retired on the forenoon of the next day of the last day of the month is erroneous and without any basis. Under no stretch of imagination, it can be said that a person retiring on the last day of the month can be treated as retired from service from the forenoon of first day of the next month viz. 01.04.1999, 01.07.2008 and 01.02.2010 respectively. By misinterpreting the law laid down in C.Subba Raos case (2 supra), the Tribunal gave an incorrect finding that the applicants are entitled to get benefits of revised pay scales which came into force from the date on which they ceased to be government servants from the midnight of previous day and that they would acquire the status of pensioners from the first day of next month. The ratio laid down in C.Subba Raos case (2 supra) would only go to show that if a government servant who would be retiring on the last day of the month would cease to be a government servant from the midnight of that day and he would acquire the status of pensioner and therefore he would be entitled for all the benefits given to a pensioner with effect from the first day of the succeeding month, if any benefits were given to the pensioner. Admittedly, no benefits were extended in all the revision of pay scales to the pensioners. There is no dispute about the ratio laid down in the above case. But, in that decision also, it is not laid down that when a person retiring on the last day of the month, can be treated as retired from service on the forenoon of first day of the next month.
35. In view of the foregoing discussion, we are of the opinion that the impugned common order of the Tribunal is liable to be set aside and is, accordingly, set aside. Consequently, the Original Applications filed by the applications shall stand dismissed.
36. In view of the aforesaid discussion, the relief prayed for in Writ Petition Nos. 8378 of 2012, 7647 of 2012, 4800 of 2013, 4786 of 2013 and 4801 of 2013 cannot be granted and the said Writ Petitions are not maintainable and are liable to be dismissed.
37. The Writ Petition Nos. 39090 of 2012, 4805 of 2013, 30314 of 2013, 30315 of 2013, 30316 of 2013, 34006 of 2013, 34007 of 2013, 34008 of 2013, 34009 of 2013, 34012 of 2013, 34220 of 2013, 37544 of 2013, 30317 of 2013 and 30318 of 2013 are, accordingly, allowed. Writ Petition Nos. 8378 of 2012, 7647 of 2012, 4800 of 2013, 4786 of 2013 and 4801 of 2013 are, accordingly, dismissed. No costs. Miscellaneous Petitions pending, if any, in the Writ Petitions shall stand closed.
______________ K.C.BHANU, J _________ ANIS, J 17.4.2014