Madras High Court
Cuddalore District Retired Official ... vs State Of Tamil Nadu Represented By Its
Author: V.Bharathidasan
Bench: V.Bharathidasan
W.P.No.4874 of 2014 etc., batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 31.01.2020
DELIVERED ON : 15.05.2020
CORAM:
THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN
W.P.Nos.4874, 7590, 7622, 15371, 15372, 15597, 15598, 18609, 18620,
18901, 18966, 19667, 20191, 22322, 22471, 23695, 23751, 24856, 24908,
25029, 25702, 25800, 26070, 26241, 26409, 27237, 27998, 29350, 30937,
30938, 30939, 30940, 30941, 30942, 33025, 33065, 33727, 35190, 35191,
35192, 35193, 35194, 35195 of 2014, 3782, 5779, 7115, 12868, 12955,
14312, 30774 and 3864 of 2015
W.P.No.4874 of 2014
Cuddalore District Retired Official Association,
Represented by its President,
Thiru V.Rajendran,
Northern Barracks,
Behind the Collectorate,
Sub Jail Road, Cuddalore – 607 001. .. Petitioner
Vs.
1. State of Tamil Nadu represented by its
Principal Secretary to the Government,
Finance (PGC) Department, Secretariat,
Fort St.George, Chennai – 600 009.
2. The Accountant General (A&E),
361, Anna Salai, Teynampet,
Chennai – 600 018. .. Respondents
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W.P.No.4874 of 2014 etc., batch
Prayer in W.P.No.4874 of 2014:
Writ petition filed under Article 226 of the Constitution of India
seeking a Writ of Declaration in the nature of Writ Declaring that the
G.O.Ms.No.363, dated 23.08.2013, passed by the 1st respondent is not in
accordance with the order of the Hon'ble Supreme Court passed in Civil
Appeal Nos.8848-8840 of 2012 and consequently direct the 1st respondent to
modify the Government Order by rectifying the discrepancies mentioned in
the writ petition.
For Petitioner : Mr.A.R.Nixon
in W.P.No.4874/2014
For 1st Respondent : Mr.Vijay Narayan
in W.P.No.4874/2014 Advocate General
Asst. by Mr.I.Satish, A.G.P.
For 2nd Respondent : Mrs.T.S.Selvarani
in W.P.No.4874/2014
-----
COMMON ORDER
The issues involved in all these batch of writ petitions are one and the same, hence all the writ petitions were heard together and disposed of by means of this common order.
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2. Brief facts leading to the filing of all these writ petitions are as follows:
(i) The petitioners in all these writ petitions are various pensioners associations or individual pensioners who have retired from service between 01.06.1988 and 31.12.1995.
(ii) This is a second round litigation.
(iii) The pension payable on the emoluments received by a retired employee is prescribed under Rule 30 of the Tamil Nadu Pension Rules, 1978, (hereinafter referred to as the ‘Rules’). As per Rule 30, the emoluments means and include, pay, special pay, dearness pay, personal pay, and any other remuneration which may be specifically ordered as emoluments by the Government.
(iv) In the year 1975, based on the recommendations of the Dearness Allowance Committee, the Dearness Allowance received by the employees were treated as Dearness Pay, so as to grant the benefit of pension, gratuity etc., http://www.judis.nic.in 3/52 W.P.No.4874 of 2014 etc., batch
(v) Subsequently, the 4th Tamil Nadu Pay Commission recommended to treat the Dearness Allowance as Dearness Pay at the end of three years for the purpose of pension. The Government in G.O.Ms.No.371, Finance (Pension) Department, dated 30.04.1986, implemented the recommendations only in respect of the employees who have retired on or after 01.10.1987.
(vi) The cut-off date fixed in the above said Government Order and a Government Letter dated 08.07.1986, were challenged by Ambasamudaram Taluk Pensioners Association and another association viz., Sankarankoil Taluk Pensioners Association before the Tamil Nadu State Administrative Tribunal (hereinafter referred to as the ‘Tribunal’). The Tribunal allowed the applications and directed the State Government to allow the benefit of Dearness Pay even to those who retired prior to 01.10.1987. The order of the Tribunal was challenged before this Court as well as before the Hon’ble Supreme Court. However, the order passed by the Tribunal has been confirmed.
(vii) Thereafter, the Government issued another Government Order in G.O.Ms.No.272, Finance (Pension) Department, dated 15.06.1998, allowing the entire Dearness Allowance and Additional Dearness Allowance as http://www.judis.nic.in 4/52 W.P.No.4874 of 2014 etc., batch Dearness Pay for the purpose of calculating pension to those who have retired between 01.04.1979 and 30.09.1987.
(viii) The above said G.O. was followed by another G.O. in G.O.Ms.No.273, Finance (Pension) Department dated 15.06.1998, extending the benefit to the employees who have retired during 02.10.1970 and 31.01.1975.
(ix) By virtue of the above said G.Os., the entire Dearness Allowance was treated as Dearness Pay for the purpose of calculating pension for the employees who have retired between 01.04.1979 and 30.09.1987 and from 02.10.1970 to 31.01.1975 respectively.
(x) Thereafter, based on the recommendations of the 5th Tamil Nadu Pay Commission, the pay and pension were revised with effect from 01.06.1988, by Government Order in G.O.Ms.No.810, Finance (Pay Commission) Department, dated 09.08.1989. In the said G.O. in pensionary benefits for the employees who have retired after 01.06.1988, the dearness pay was allowed only with certain percentage. By virtue of the said G.O. compute the pensiorary benefit of an employee who has pay range upto http://www.judis.nic.in 5/52 W.P.No.4874 of 2014 etc., batch Rs.3,500/- the rate of dearness pay was allowed at 13% of pay, and for an employee whose pay range is above Rs.3,500/- but not exceeding Rs.6,000/-, the rate of dearness pay was 9% of pay, subject to a minimum of Rs.455/-, and for an employee whose pay range is above Rs.6,000/-, the rate of dearness pay was 8% of pay subject to a minimum of Rs.540/-.
(xi) The said G.O. was challenged by some pensioners before this Court in W.P.No.32045 of 2005 etc., batch on the ground that, the slab system which was introduced for computation of pension depending on the pay scale, amounts to taking away the benefits which was granted to them earlier and it will cause financial loss to the pensioners. That apart, the cut- off date fixed by the Government is also arbitrary.
(xii) A learned Single Judge of this Court allowed the writ petitions holding that, the entire dearness allowance should be treated as dearness pay for the purpose of calculating pension and further held that as per the earlier order passed by the Tribunal, there cannot be any discrimination between the pensioners.
(xiii) Challenging the above order as well as various other similar http://www.judis.nic.in 6/52 W.P.No.4874 of 2014 etc., batch orders passed in various writ petitions, writ appeals were filed by the respondent Government in W.A.Nos.1002 of 2006 etc., batch. A Division Bench of this Court vide judgement dated 17.12.2007, allowed the writ appeals holding that, no employee has a right to draw the dearness allowance as dearness pay unless the Government specifically treats such dearness allowance as dearness pay, and it is always open to the State Government to treat dearness allowance or a part of it as dearness pay for the purpose of computation of pension and it is also open to the State Government not to treat such dearness allowance as dearness pay. It is for the employer to decide whether dearness allowance could be treated as dearness pay or not. The Division Bench has also held that, the cut-off date fixed in the above said G.O. Viz., 01.06.1988, is not arbitrary, as the said cut-off date has been fixed based on the recommendations of the 5th Tamil Nadu Pay Commission. The employees who have retired prior to 01.06.1988, were getting salary in the pre-revised scales of pay, on the other hand those who have retired on or after 01.06.1988, their pay was calculated in the revised scale of pay which is much higher than the pre-revised scales of pay. The Division Bench has further held that employees who have retired prior to 01.06.1988 or after 30.06.1988, in a similar post are getting almost similar quantum of pension, http://www.judis.nic.in 7/52 W.P.No.4874 of 2014 etc., batch hence there is no discrimination and the cut-off date fixed by the State Government is not arbitrary.
(xiv) Challenging the judgement of the Division Bench, a batch of Special Leave Petitions were filed before the Hon’ble Supreme Court of India by the pensioners, in C.A.No.8861 to 8863 of 2012 etc., batch. The Hon’ble Supreme Court by judgement dated 17.01.2013, allowed all the appeals thereby setting aside the judgement of the Division Bench of this Court dated 17.12.2007 and also set aside the G.O.Ms.No.810, Finance (Pay Commission) Department, dated 09.08.1989, to the extent it extends the benefits to employees who retire on or after 01.06.1988, a lower component of dearness pay as against those who had retired prior to 01.06.1988, as being violative of Articles 14 and 16 of the Constitution of India.
(xv) The Hon’ble Supreme Court has also held that, there is no valid justification for the Government to classify the similarly placed pensioners who have retired prior to 01.06.1988 and after that date. It was further held that, the purpose of adding the component of dearness pay to wages for calculating pension is to offset the effect of inflation, therefore, the classification made by the Government placing employees who have retired http://www.judis.nic.in 8/52 W.P.No.4874 of 2014 etc., batch after 01.06.1988, at a disadvantageous position and allowed them a lower component of dearness pay, is clearly arbitrary and discriminatory.
(xvi) Subsequently, in order to implement the order passed by the Hon’ble Supreme Court, respondent Government issued the impugned Government Order in G.O.No.363, Finance (PGC) Department, dated 23.08.2013, thereby permitting the pensioners who have retired between 01.06.1988 and 31.12.1995 to compute average emoluments notionally for the purpose of calculation of pension based on the 4th Tamil Nadu Pay Commission scales of pay and with reference to the dearness allowance and additional dearness allowance applicable in the pre-revised scale of pay sanctioned from time to time as dearness pay for the entire 10 months preceding retirement. Further the pensioners who have retired between 01.06.1988 and 31.12.1995, shall have the option to opt for the above formula or to retain the current pension, whichever is advantageous to them. It was also further stated that, if the option is exercised for the pre-revised scale to calculate the pension, the excess pay and allowances and terminal benefits, if any, drawn by them in the revised scale of pay prior to their retirement shall be waived as a special case. It was also further stated in the http://www.judis.nic.in 9/52 W.P.No.4874 of 2014 etc., batch impugned G.O that, as the revision of pension ordered above is based on the option to be exercised by the pensioners to their advantage, the above order shall be eligible to all those pensioners retired between 01.06.1988 and 31.12.1995 and those who are alive on the date of issue of the Government Order.
3. Now challenging the above G.O. and the subsequent clarification letters issued by the 1st respondent dated 04.02.2014 and 25.03.2014, the present batch of writ petitions have been filed.
4. The impugned Government Order has been challenged mainly on the following grounds:
(i) As the Hon’ble Supreme Court set aside G.O.Ms.No.810, dated 09.08.1989, so far as fixing the lower component of dearness pay, the Government ought to have applied the G.O.Ms.Nos.272 and 273 dated 15.06.1998, treating the entire dearness allowance as dearness pay preceding the date of retirement in respect of pensioners who retired after 01.06.1988.
(ii) The respondent State has taken only the dearness allowance as dearness pay drawn in the pre-revised scale i.e. based on the 4th Tamil Nadu http://www.judis.nic.in 10/52 W.P.No.4874 of 2014 etc., batch Pay Commission recommendations, which only relates to the period from 01.10.1978 to 31.05.1988, not from 10 month preceding the date of retirement of the pensioners, who have retired from 01.06.1988 to 31.12.1995, which was the 5th Pay Commission period.
(iii) Under Rule 31 of the Tamil Nadu Pension Rules, emolument has to be determined with reference to the date of retirement i.e. 10 months preceding the retirement. Hence the G.O. runs contrary to Rule 31 of the Rules, and the Government ought to have taken the dearness pay drawn during 10 months preceding their retirement, and not the previous pay commission period viz., the 4th Pay Commission period.
(iv) In the impugned Government order, the benefit was granted only to the pensioners who were alive and it is not available to the family members of the pensioner who have died. Thus, it is arbitrary and discriminatory and the benefits should be extended to the legal representatives of the deceased pensioners also.
(v) The financial constraint expressed by the Government cannot be a reason for denying the benefit to the pensioners. http://www.judis.nic.in 11/52 W.P.No.4874 of 2014 etc., batch
5. The respondents filed a detailed counter affidavit, after elaborating the various earlier G.Os. issued by the Government treating the dearness allowance as dearness pay and also the previous orders passed by this Court and the Hon’ble Supreme Court, the respondent has stated that, in order to implement the orders of the Hon’ble Supreme Court, the impugned G.O. has been passed. The Government of Tamil Nadu, after considering various factors has adopted the Central Pay Commission System, w.e.f. 01.06.1988, under which there would be an automatic revision of the basic pension as and when pay revision is taken up, unlike the period prior to this. Thus, it is on this basis that the basic pension has been revised upwards by 40% for all existing pensioners with effect from 01.01.1996 and 01.01.2007, when the Government of Tamil Nadu has ordered pay revisions.
6. Further, according to the respondents, the Government has implemented the orders of the Hon’ble Supreme Court by extending the benefits of G.O.Ms.Nos.272 and 273 dated 15.06.1998, to those who have retired between 01.06.1988 and 31.12.1995, with reference to the pre-revised scales of pay and issued the impugned G.O. http://www.judis.nic.in 12/52 W.P.No.4874 of 2014 etc., batch
7. Subsequently the Government vide letter dated 04.02.2014, has clarified that as the dearness allowance drawn on the date of retirement has already been merged, the percentage merged in this regard may be excluded while re-fixing pension as on 01.01.1996. While doing so, if the revised pension happens to be lesser than that of the existing pension, the pensioner may be allowed to draw his existing pension. If the amount of dearness allowance already drawn is found to be in excess, the same need not be taken into account for the period from the date of retirement upto 31.12.1995 and the same may be ignored.
8. It is further stated by the respondents that, based on the 5 th Tamil Nadu Pay Commission recommendations, the State Government has extended Central scales of pay to its employees w.e.f 01.06.1988, subsequently the next two Pay Commissions were implemented w.e.f. 01.01.1996 and 01.01.2006, respectively by merging the same quantum of dearness allowance drawn by the serving employees and the pensioners following the Government of India pattern. Hence, automatic pension revision has been allowed to the pensioners as in the case of the serving personnel. After implementation of the Central scales of pay, the question of allowing the dearness allowance as dearness pay for pensionary benefits http://www.judis.nic.in 13/52 W.P.No.4874 of 2014 etc., batch during the subsequent pay commission period viz., 01.01.1996, does not arise. Hence, the discrimination and division among the pensioners does not arise as the implementation of the 4th Tamil Nadu Pay Commission w.e.f 01.10.1984 and the implementation of the 5th Tamil Nadu Pay Commission was w.e.f. 01.06.1988, in which the scales of pay of the Government servants were revised on par with the Central Scales of pay. Hence, there is no discrimination among the homogeneous group of pensioners.
9. It is further stated by the respondents that the revision of pension ordered based on the option to be exercised by the pensioners to their advantage and the above orders shall be eligible to all those pensioners who have retired between 01.06.1988 and 31.12.1995 and who are alive on the date of issue of this order and hence there is no arbitrariness, irrationality or illegality in the impugned Government Order.
10. It is further stated by the respondents that, the State expenditure on pension has increased manifold, in 2006-2007 the total number of pensioners were 5,60,168/-, and expenditure was Rs.5,442 crores. In 2011-2012, the total number of pensioners increased to 7,53,890 and pension expenditure http://www.judis.nic.in 14/52 W.P.No.4874 of 2014 etc., batch was Rs.12,273 crores. As expenditure on pension liability to the State Government is unsustainable in the long run and to curtail the recurring expenditure on pension, the New Contributory Pension scheme has been implemented with effect from 01.04.2003. Therefore, considering the financial constraints there is no justification to extend the benefit of the impugned G.O. to others also.
11. The request of the petitioners to treat the dearness allowance actually drawn by the employees at the time of retirement as dearness pay for calculation of pension cannot be accepted. Consequent to the recommendations of the 5th Tamil Nadu Pay Commission, the revised Central pay scales as per the 4th Tamil Nadu Pay Commission were implemented w.e.f. 01.06.1988 and the Central scale of pay was implemented to State Government employees on 01.06.1988, when the all India Consumer Price Index was 687 points, as against 608 points merged by the 4th Central Pay Commission. In order to bridge this gap, the difference in all India Consumer Price index points was considered as Dearness Pay to set right the anomaly of lesser emoluments in the revised pension. Further after the implementation of the 5th Pay Commission scales of pay there is no http://www.judis.nic.in 15/52 W.P.No.4874 of 2014 etc., batch concept of treating the dearness allowance as dearness pay for the purpose of calculating pensionary benefits.
12. In the above circumstances, as per the judgement of the Hon’ble Supreme Court, the benefit of G.O.Ms.Nos.272 and 273 dated 15.06.1998, were extended to those who retired between 01.06.1988 and 31.12.1995, with reference to the pre-revised scales of pay by computing the average emoluments notionally for the purpose of calculation of pension, based on the 4th Tamil Nadu Pay Commission scales of pay with reference to the dearness allowance and additional dearness allowance applicable in the pre- revised scales of pay as dearness pay for the entire 10 months i.e. preceding 10 months before the retirement of an employee as though they would have continued in the same scale of pay without subsequent pay revision. Hence, the impugned G.O. has been implemented as per the orders passed by the Hon’ble Supreme Court of India and there is no illegality in it.
13. Mr.Satish Parasaran, learned senior counsel leading the arguments on behalf of the petitioners would contend that, the impugned Government Order has been issued in total violation of the judgement of the Hon’ble http://www.judis.nic.in 16/52 W.P.No.4874 of 2014 etc., batch Supreme Court. The pension is calculated based on the average emoluments. ‘Emoluments’ is defined under Rule 30 of the Rules, which includes not only pay, also the special pay, dearness pay and personal pay. ‘Average emoluments’ is defined under Rule 31 of the Rules, as the emoluments drawn by a Government Servant during the last ten months prior to the retirement. Hence, the dearness pay consists of components of emoluments for the purpose of calculating pension.
14. According to the learned senior counsel, the object was to incorporate dearness pay component to the pension in accordance with Rule 30 of the Rules, but the impugned Government order defeat the very object by excluding the dearness pay component for subsequent years at the time of re-fixation of pension. Thus, the petitioners’ statutory entitlement has been deprived.
15. Further according to the learned senior counsel, the subsequent Government Letters impugned herein, has actually modified and override the impugned G.O. Thus, petitioners’ entitlement to subsequent revision has been nullified by the impugned Government Letters. At any rate a circular/letter, cannot override a Government Order, which has been issued http://www.judis.nic.in 17/52 W.P.No.4874 of 2014 etc., batch on behalf of the Governor, under Article 162 r/w Article 166 of the Constitution of India.
16. The learned senior counsel further contended that, the exclusion of dearness pay component for the purpose of revision is not borne out by any statutory provision or any Rules. The pensioners who have retired during the relevant period are in a disadvantageous position and they have been discriminated as against the other retirees of all other periods as they are provided a revision of pension after incorporation of dearness pay.
17. The learned senior counsel further submitted that the impugned G.O. incorporates a notional fixation of pay based on the 4th Tamil Nadu Pay Commission scales of pay for the pensioners in the relevant period. The pension computation on the basis of a notional pay is contrary to the applicable Rules and also the judgement of the Hon’ble Supreme Court. The pensioners are entitled to the benefit of dearness allowance actually drawn prior to retirement, but it has been denied by the impugned G.O. Hence, the impugned G.O. has to be read down in so far as the notional fixation is concerned and the petitioners should be permitted to compute the pension http://www.judis.nic.in 18/52 W.P.No.4874 of 2014 etc., batch based on the actual scale of pay and the dearness allowance drawn at the time of retirement.
18. The learned senior counsel further submitted that the impugned G.O. discriminates between the pensioners who are alive on the date of issue of the impugned G.O. and the pensioners who have already died, without any rational basis as the entire pensioners constitutes a homogeneous class, and there cannot be any discrimination between them. Therefore, according to the learned senior counsel, on that ground also the impugned G.O. is liable to be set aside.
19. Mr.R.Saseetharan, learned counsel appearing for some of the petitioners would contend that the Hon’ble Supreme Court has set aside the G.O.Ms.No.810, dated 09.18.1989, in so far as fixing the lower component of dearness pay thereby restoring the order passed by the learned Single Judge of this Court. Hence the respondent Government should allow the benefit as per G.O.Ms.Nos.272 and 273, dated 15.06.1998, by treating the dearness allowance as dearness pay actually drawn ten months preceding the date of retirement of the petitioners and ought not to have taken the dearness allowance as dearness pay drawn in the pre-revised scale which relates to the http://www.judis.nic.in 19/52 W.P.No.4874 of 2014 etc., batch period from 01.10.1978 to 31.05.1988 and not 10 months preceding the date of retirement of the petitioners, as the scale of pay in pre-revised scale is lower than the revised scale of pay. The Government has adopted a lower component indirectly, which is totally against the judgement of the Hon’ble Supreme Court.
20. The learned counsel further contended that as per Rule 31 of the Rules, the average emolument shall be determined with reference to the emoluments drawn by a Government servant during 10 months preceding the date of retirement. Further in the impugned G.O. the Government only permitted dearness allowance in the pre-revised scale which is contrary to Rule 31 of the Rules. The learned counsel further contended that financial constraint cannot be a reason to deny a legal entitlement of the petitioners and the Hon’ble Supreme Court has also clearly held that financial constraint is not a reason stated by the Government to fix a lower component of dearness pay. In such circumstances, it is not open to the Government to come out with a new plea of financial constraint and the same should not be permitted.
21. Mr.A.R.Nixon, learned counsel appearing for some of the petitioners reiterated the arguments put forth by the other counsels, and further submitted that the impugned G.O. is totally contrary to the earlier http://www.judis.nic.in 20/52 W.P.No.4874 of 2014 etc., batch view taken by the Government. In the Note file relating to the impugned G.O., the Government has decided to extend the benefit of G.O.Ms.No.272, dated 15.06.1988 to the pensioners who have retired after 01.06.1988, subsequently based on the remarks made by the Accountant General (A&E), Chennai, changes were made and the impugned G.O. has been issued contrary to the earlier decision taken by the Government. There is no reason to deny the petitioners to compute average emoluments for the purpose of calculation of pension based on the 5th Tamil Nadu Pay Commission scales of pay with the percentage of dearness allowance sanctioned from time to time as dearness pay for the entire 10 months preceding retirement and the denial of benefits of the impugned G.O. to the legal heirs / family pensioners would amount to clear discrimination. The learned counsel further submitted that the subsequent impugned Government Letters are totally contrary to the impugned G.O. and hence it is also liable to be set aside.
22. Mr.V.Chandrakanthan, learned counsel appearing for some of the writ petitioners submitted that the impugned G.O. has been issued in total violation of Rules 30 and 31 of the Rules and also in total violation of the judgement of the Hon’ble Supreme Court.
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23. Per contra, Mr.Vijay Narayan, learned Advocate General, appearing for the respondent State would contend that, the G.O. impugned in these writ petitions is in total conformity with the judgement of the Hon’ble Supreme Court, and it is not in violation as alleged by the writ petitioners. The Hon’ble Supreme Court has set aside the earlier G.O.Ms.No.810, dated 09.08.1989, to the extent that the fixing of lower component of dearness pay for the employees retired on or after 01.06.1988 as against those who have retired prior to 01.06.1988, in all other aspects the Hon’ble Supreme Court has upheld the G.O. The Hon’ble Supreme Court has also clearly held that the Government has the right to choose whether the dearness allowance should be treated as dearness pay or not, and further held that it is open to the State Government not to treat any part of dearness allowance as dearness pay. The Hon’ble Supreme Court has further held that in case of financial constraints, that would be the most appropriate course to be adopted and the State Government has the right to choose how much of dearness allowance should be treated as dearness pay, and no employee has right to draw dearness allowance as dearness pay until the Government decided on the same.
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24. The learned Advocate General further submitted that, the Hon’ble Supreme Court has clearly held that the above judgement should not be misconstrued as a determination of the total carry home pension of an employee and the adjudication of the present controversy is only on dearness pay rather than on the eventual carry home pension.
25. The learned Advocate General further submitted that, the Hon’ble Supreme Court has set aside the cut-off date fixed by the Government on the ground that it discriminates one set of pensioners with another while calculating pension payable to them, without any justification or basis for the above said classification. By the impugned G.O. that discrimination has been rectified and the pensioners who have retired between 01.06.1988 and 31.12.1995, shall be permitted to compute average emoluments notionally for calculation of pension based on the 4th Tamil Nadu Pay Commission scales of pay and with reference to the dearness allowance and additional dearness allowance applicable in the pre-revised scale of pay sanctioned from time to time as dearness pay. Consequent to the recommendations of the 5th Tamil Nadu Pay Commission the revised Central pay scales were implemented w.e.f. 01.06.1988 and the Central scales of pay was http://www.judis.nic.in 23/52 W.P.No.4874 of 2014 etc., batch implemented to the State Government employees w.e.f. 01.06.1988, when All India Consumer Price Index was 687 points as against the 608 points merged by the 4th Central Pay Commission. Hence after the 5th Pay Commission scales of pay, there is no concept of treating dearness allowance as dearness pay for the purpose of pensionary benefits during the 5 th Pay Commission period. Hence, as per the judgement of the Hon’ble Supreme Court, the benefits of G.O.Ms.No.272, dated 15.06.1998, were extended to all the employees who retired between 01.06.1988 and 31.12.1995 with reference to the pre-revised scale of pay.
26. The learned Advocate General also further submitted that the subsequent impugned Government letter dated 04.02.2004, is only a clarification to the effect that the dearness allowance drawn on the date of retirement has already been merged and the percentage merged in this regard may be excluded while re-fixing pension as on 01.01.1996, and it was further clarified that the revised pension happens to be lesser than that of the existing pension, the pensioner may be allowed to draw his existing pension and by allowing merger, if the dearness allowance already drawn is found to be in excess, the same need not be taken into account. It is only a http://www.judis.nic.in 24/52 W.P.No.4874 of 2014 etc., batch clarification issued by the Government and it does not override the impugned G.O.
27. As per the impugned G.O. the revision of pension is based on the option to be exercised by the pensioner to their advantage, hence the above orders were made applicable only to those who are alive on the date of issuance of the G.O. Only, and it cannot be made applicable to the persons who are not alive on the said date. Hence, it cannot be stated as discriminatory.
28. During the course of hearing, the learned counsel appearing for the writ petitioners submitted that, the writ petitioners are ready to get the benefit of dearness allowance and additional dearness allowance sought for by them w.e.f 01.10.2017 or 01.10.2019, without any arrears and sought the State Government to consider their request. In this regard, the learned Advocate General produced a letter dated 23.12.2019, addressed to him by the Additional Chief Secretary to Government, Finance Department, wherein it has been stated that as per the impugned G.O. the pension of 22,672 pensioners have been revised and if the petitioners request is accepted the immediate financial commitment as arrears would work out to Rs.590.12 http://www.judis.nic.in 25/52 W.P.No.4874 of 2014 etc., batch crores and the request for revision as on 01.10.2019 is considered, the expected expenditure will be Rs.147.53 crores and the aggregate financial implication will be Rs.4997 crores over a period of 10 years and the State Government is not in a healthy fiscal position to incur this expenditure and the Government is also not in a position to agree to the said request.
29. I have considered the rival submissions and also perused the records carefully.
30. Before considering the dispute in the present writ petitions, it will be useful to refer to the relevant Rules as well as the various G.Os. treating dearness allowance as dearness pay as one of the components for fixing the pensionary benefits.
31. Pension of a retired employee was fixed on the basis of emolument of the employee receiving before his retirement, under Rule 30 of the Rules. The emolument includes pay, special pay, dearness pay, personal pay and other remuneration which may be specifically permitted as emoluments by the Government. The relevant rule reads as follows:
“Rule 30: Emoluments: In these rules, unless http://www.judis.nic.in 26/52 W.P.No.4874 of 2014 etc., batch the context otherwise requires, (1) Emoluments means and include:-
(i) Pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity (including temporary capacity under emergency provisions) or to which he is entitled by reason of his position in a cadre:
(ii) special pay, dearness pay and personal
pay; and
(iii) any other remuneration which may be
specially classed as emoluments by the
Government.”
Under the above Rule, the dearness pay is one of the components of emolument.
32. In the year 1970, the Government by order dated 11.03.1970, included the dearness allowance as a component of wages for calculating pension for the employees who have retired in a particular period. However, that restriction has been held illegal and the benefit was directed to be extended to all the pensioners irrespective of the date of retirement. http://www.judis.nic.in 27/52 W.P.No.4874 of 2014 etc., batch
33. Thereafter, in the year 1975, based on the recommendations of the Dearness Allowance Committee, in G.O.Ms.No.115, dated 06.02.1975, the Government directed that the dearness allowance received by an employee should be treated as dearness pay for the purpose of calculation of pension and that revision was made applicable to the employees who have retired on or after 01.02.1975. However, by an order of this Court, the benefit was extended to the employees who have retired between 02.10.1970 and 31.01.1975 and the dearness allowance actually drawn by a retired employee was treated as dearness pay for calculation of pension.
34. Subsequently, in the year 1986, in G.O.Ms.No.371, dated 30.04.1986, based on the recommendation of the 4th Tamil Nadu Pay Commission, only for employees retired on or after 01.10.1987, the dearness allowance sanctioned up to that period reckoned as dearness pay for the purpose of pension. The said Government Order was challenged before the Tribunal in O.A.Nos.2227/92 and 4953/92 by some of the pensioner’s association and the Tribunal set aside the said G.O. and directed the Government to give the benefit of dearness pay to the employees who have retired prior to 01.10.1987 also, that order has been confirmed by the http://www.judis.nic.in 28/52 W.P.No.4874 of 2014 etc., batch Hon’ble Supreme Court.
35. Thereafter, the Government issued another order in G.O.Ms.No.272, dated 15.06.1998, allowing the entire dearness allowance and additional dearness allowance as dearness pay, for all the employees who retired between 01.04.1979 to 31.05.1988. By another order in G.O.Ms.No.273, dated 15.06.1998 the above benefits were extended to the employees who have retired from 02.10.1970 to 31.10.1975. Thus, the dearness allowance and additional dearness allowance sanctioned from time to time upto 30.09.1987 and actually drawn by an employee, were allowed as dearness pay for entire 10 months preceding retirement for computation of average emolument for calculation of pensionary benefits.
36. In the meantime, the 5th Tamil Nadu Pay Commission made recommendations for revision of pay and pension. Accepting the said recommendation, the Government issued another order in G.O.Ms.No.810, dated 09.08.1989, introducing a slab system for adding dearness allowance as dearness pay for the purpose of calculating pension, which reads as follows:
“3....They accordingly direct that pensionery benefits of employees retired/retiring on or after 1 st June 1988 be http://www.judis.nic.in 29/52 W.P.No.4874 of 2014 etc., batch computed by adding “Dearness Pay” along with pay, at the following percentage rates:-
Pay range Rate of dearness pay
(1) (2)
(i) Up to Rs.3,500 .. 13 per cent of pay.
(ii) Above Rs.3,500 but
not exceeding Rs.6,000 .. 9 per cent of pay subject
to a minimum of Rs.455.
(iii) Above Rs.6,000 .. 8 per cent of pay subject to
minimum of Rs.540.”
The above revision was made applicable to the employees who retired on or after 01.06.1988.
37. The above G.O. came to be challenged before this Court in W.P.Nos.32045 and 32089 of 2005. A learned Single Judge of this Court by order dated 20.04.2006, set aside the G.O. and allowed the writ petitions holding that, the entire dearness allowance should be treated as dearness pay for the purpose of calculating pension and further held that as per the earlier order passed by the Tribunal, there cannot be any discrimination between the pensioners. Challenging the above order, the respondent Government filed writ appeals before this Court in W.A.Nos.1002 of 2006 (etc., batch). Apart from that some other writ petitions pending before this Court were also http://www.judis.nic.in 30/52 W.P.No.4874 of 2014 etc., batch tagged along with the writ appeals, and by judgement dated 17.12.2007, the Division Bench of this Court allowed the writ appeal and upheld the validity of the said G.O. Writ appeals were allowed mainly on the ground that the employees have no right to claim dearness allowance as dearness pay and it is for the Government to decide how to treat the dearness allowance as dearness pay to its employees and it is also open to the State Government not to treat such dearness allowance as dearness pay for the purpose of calculation of pension, it is for the employer to decide whether dearness allowance has to be treated as dearness pay for the purpose of computing pension. The Division Bench has also held that the cut-off date fixed in the said G.O. had a nexus as the revision has been made pursuant to the recommendations of the 5th Tamil Nadu Pay Commission.
38. The above judgement of the Division Bench was challenged before the Hon’ble Supreme Court by various affected persons. The Hon’ble Supreme Court by an elaborate judgement dated 17.01.2013, allowed the appeals and set aside a part of G.O.Ms.No.810, dated 09.08.1989, so far as fixing a lower component of dearness pay for its employees retired after 01.06.1988. While allowing the appeals, the Hon’ble Supreme Court has http://www.judis.nic.in 31/52 W.P.No.4874 of 2014 etc., batch also held that the dearness allowance is extended to the employees to balance the effects of ongoing inflation, so as to ensure that inflation does not interfere with the enjoyment of life, to which an employee is accustomed. Inflation in the market place is sought to be balanced by paying dearness allowance to Government employees. Since the component of inflation similarly affects all employees, and all pensioners irrespective of the date of their entry into service or retirement. It is not per se possible to accept different level of dearness pay based on the date of retirement and it would be wholly irrelevant to determine the dearness pay to be extended to the retired employee. The Government has also failed to disclose any object which is to be achieved by fixing the cut-off date. The relevant portion of the judgement of the Hon'ble Supreme Court reads as follows:
“27. At this juncture it is also necessary to examine the concept of valid classification. A valid classification is truly a valid discrimination. Article 16 of the Constitution of India permits a valid classification (see, State of Kerala vs. N.M. Thomas (1976) 2 SCC 310). A valid classification is based on a just objective. The result to be achieved by the just objective presupposes, the choice of some for differential consideration/treatment, over others. A classification to be valid must necessarily satisfy two http://www.judis.nic.in 32/52 W.P.No.4874 of 2014 etc., batch tests. Firstly, the distinguishing rationale has to be based on a just objective. And secondly, the choice of differentiating one set of persons from another, must have a reasonable nexus to the objective sought to be achieved. Legalistically, the test for a valid classification may be summarized as, a distinction based on a classification founded on an intelligible differentia, which has a rational relationship with the object sought to be achieved. Whenever a cut off date (as in the present controversy) is fixed to categorise one set of pensioners for favourable consideration over others, the twin test for valid classification (or valid discrimination) must necessarily be satisfied...........
28. In the present context, it needs to be kept in mind, that dearness allowance is paid to Government employees keeping in mind the All India Consumer Price Index. Inflation in the market place is sought to be balanced by paying dearness allowance to Government employees. When a State Government chooses to treat dearness allowance as dearness pay, the objective remains the same i.e., inflation in the market place is sought to be balanced for retired employees by giving them the benefit of dearness pay. Since the component of inflation similarly affects all http://www.judis.nic.in 33/52 W.P.No.4874 of 2014 etc., batch employees, and all pensioners (irrespective of the date of their entry into service or retirement), it is not per se possible to accept different levels of dearness pay to remedy the malady of inflation. Just like the date of entry into service (for serving employees) would be wholly irrelevant to determine the dearness allowance to be extended to serving employees, because the same has no relevance to the object sought to be achieved. Likewise, the date of retirement (for pensioners) would be wholly irrelevant to determine the dearness pay to be extended to retired employees. Truthfully, it may be difficult to imagine a valid basis of classification for remedying the malaise of inflation. In the absence of any objective, projected in this case, the question of examining the reasonableness to the object sought to be achieved, simply does not arise. Our straying into this expressed realm of imagination, was occasioned by the fact, that the pleadings filed on behalf of the State Government, do not reveal any reason for the classification, which is subject matter of challenge in the instant appeal. The only position adopted in the pleadings filed before this Court for introducing a cut off date for differential treatment, is expressed in paragraph 4 of the counter affidavit, filed by the State of Tamil Nadu, which is being extracted herewith:.-
http://www.judis.nic.in 34/52 W.P.No.4874 of 2014 etc., batch “With reference to the averments made in the Grounds of the Special Leave Petition, I submit that the fifth Pay Commission has revised pay and pension with effect from 1.6.1988. As per the recommendation of the above Pay Commission, the Government had issued orders for the revision of pension and Family Pension with effect from 1.6.1988 in G.O.Ms. No. 810. Finance (PC) Department, dated 9.8.1989. It is submitted that the fourth Tamil Nadu Pay Commission has recommended that at the end of the period of three years, the Dearness Allowance sanctioned upto that period could be treated as Dearness Pay. The Fourth Pay Commission revision was given with effect from 1.10.1984. Based on the above recommendation, the Government has issued orders in G.O.Ms. No.371, Finance, dated 30.4.1986, read with Government letter No.124414/Pension/86-1, dt. 11.2.1987, that the Dearness Allowance sanctioned upto 30.9.1987 shall be treated as http://www.judis.nic.in 35/52 W.P.No.4874 of 2014 etc., batch Dearness Pay for the purpose of pensionary benefit in the case of the Govt. Servant retiring on or after 1.10.1987. The orders issued in G.O.Ms. 371, Finance dated 30.4.1985 as amended in Government letter No.70707- A/Pension /86-1, dated 8.7.
1986 read as follows:-
“The Fourth Tamil Nadu Pay Commission have among other things recommended that at the end of a period of three years the Dearness Allowance sanctioned upto the period could be treated as Dearness Pay in order to ensure a reasonable pension level. The Government accept the recommendation of the Commission and direct that in the case of Government servant, who will be retiring on or after 1.10.1987, the Dearness Allowance sanctioned upto 1.10.1987 shall be reckoned as Dearness Pay for purpose of pension in the case of death of a Government servant occurring on or http://www.judis.nic.in 36/52 W.P.No.4874 of 2014 etc., batch after 1.10.1987 while in service the Dearness Allowance sanctioned upto 1.10.1987 shall be treated as Dearness Pay for the purpose of computing Family Pension.” It is therefore, evident, that the State Government has not disclosed any object which is desired to achieve by the cut off date. Most importantly, the financial constraints of the State Government, were not described as the basis/reason for the classification made in the impugned Government order dated 9.8.1989.
***
31. Having given our thoughtful consideration to the controversy in hand, it is not possible for us to find a valid justification for the State Government to have classified pensioners similarly situated as the appellants herein (who had retired after 1.6.1988), from those who had retired prior thereto. Inflation, in case of all such pensioners, whether retired prior to 1.6.1988 or thereafter, would have had the same effect on all of them. The purpose of adding the component of dearness pay to wages for calculating pension is to offset the effect of inflation. In our considered view, therefore, the instant classification made by the State Government in the impugned Government order dated http://www.judis.nic.in 37/52 W.P.No.4874 of 2014 etc., batch 9.8.1989 placing employees who had retired after 1.6.1988 at a disadvantage, vis-à-vis the employees who retired prior thereto, by allowing them a lower component of dearness pay, is clearly arbitrary and discriminatory, and as such, is liable to be set aside, as violative of Articles 14 and 16 of the Constitution of India.”
39. While holding that the cut-off date fixed by the Government is arbitrary and discriminatory the Hon’ble Supreme Court has also held that the employee has no right to draw dearness allowance as dearness pay until the Government decided to treat the dearness allowance as dearness pay, and only the State Government has right to choose whether the dearness allowance should be treated as dearness pay and it is also open to the State Government not to treat any part of the dearness allowance as dearness pay.
The State Government has the right to chose how much of dearness allowance should be treated as dearness pay, however with a rider that, when the Government choose a particular component of dearness allowance would be treated as dearness pay, it cannot discriminate between a homogeneous group of pensioners while calculating the pension payable to them. The relevant portion of the judgement of the Hon'ble Supreme Court reads as http://www.judis.nic.in 38/52 W.P.No.4874 of 2014 etc., batch follows:
“29. The issue in hand needs to examine from another perspective as well. It must be clearly understood, that no employee has a right to draw dearness allowance as dearness pay till such time as the State Government decides to treat dearness allowance as dearness pay. And therefore, the State Government has the right to choose whether or not dearness allowance should be treated as dearness pay. As such, it is open to the State Government not to treat any part of dearness allowance as dearness pay. In case of financial constraints, this would be the most appropriate course to be adopted. Likewise, the State Government has the right to choose how much of dearness allowance should be treated as dearness pay. As such, it is open to the State Government to treat a fraction, or even the whole of dearness allowance as dearness pay. Based on Rule 30 of the Pension Rules, it is clear that the component of dearness pay would be added to emoluments of an employee for calculating pension. In a situation where the State Government has chosen, that a particular component of dearness allowance would be treated as dearness pay, it cannot discriminate between one set of pensioners and another, while calculating the pension payable http://www.judis.nic.in 39/52 W.P.No.4874 of 2014 etc., batch to them (for the reasons expressed in the preceding paragraph). Of course, a valid classification may justify such an action. In this case, the State Government has not come out with any justification/basis for the classification whereby one set of pensioners has been distinguished from others for differential treatment.”
40. The Hon’ble Supreme Court has also made it very clear that the issue decided in the above appeals are only relating to the dearness pay and not relating to the total carry home pension of the employee. The relevant paragraph of the judgement is as follows:
“30. The instant controversy should not be misunderstood as a determination of the total carry home pension of an employee. All the Government orders referred to above, deal with the quantum of dearness allowance to be treated as dearness pay for the calculation of pension. Dearness pay is one of the many components, which go into the eventual determination of pension. Therefore, the focus in the adjudication of the present controversy must be on dearness pay, rather than on the eventual carry home pension. The relevance and purpose of treating dearness allowance as dearness pay, has http://www.judis.nic.in 40/52 W.P.No.4874 of 2014 etc., batch been brought out in the foregoing paragraphs. Therefore, clearly, the object sought to be achieved by adding dearness pay to the wage of a retiree, while determining pension payable to him, is to remedy the adverse effects of inflation.....”
41. That apart, on factual aspect the Hon’ble Supreme Court has held that similarly placed employees retiring prior to 01.06.1988 are drawing more pension than the employee retiring after 30.06.1988 pursuant to the above said G.O.
42. Now, in order to rectify the discrimination found by the Hon’ble Supreme Court, the impugned G.O., viz., G.O.Ms.No.363, dated 23.08.2013, has been issued by the State Government. The relevant portion of the G.O. reads as follows:
“14. After careful consideration, the Government has decided to implement the orders of the Hon’ble Supreme Court of India, by extending the benefit of the orders issued in the reference ninth read above, to those who retired on or after 1.6.1988 upto 31.12.1995 with reference to the pre-
revised scales of pay (i.e. scales of pay that existed http://www.judis.nic.in 41/52 W.P.No.4874 of 2014 etc., batch prior to 1.6.1988). Accordingly, Government direct that:
(i) the pensioners who have retired between 1.6.1988 and 31.12.1995 shall be permitted to compute average emoluments notionally for the calculation of pension based on the Fourth Tamil Nadu Pay Commission scales of pay and with reference to the Dearness Allowance and Additional Dearness Allowance applicable in the pre-revised scale of pay sanctioned from time to time as Dearness Pay for the entire 10 months preceding retirement;
(ii) further, such of the pensioners who retired between 1.6.1988 and 31.12.1995 shall have the option to opt for the above formula or to retain the current pension, whichever is advantageous to them;
(iii) if the option is exercised for the pre-
revised scale to calculate the pension, the excess pay and allowances and terminal benefits, if any, drawn by them in the revised scale of pay prior to their retirement shall be waived as a special case. To this effect, necessary amendment to Rule 30 of the Tamil Nadu Pension Rules, 1978 will be issued separately. http://www.judis.nic.in 42/52 W.P.No.4874 of 2014 etc., batch
15. As the revision of pension ordered above is based on the option to be exercised by the pensioners retired to their advantage, the above orders shall be eligible to all those pensioners retired between 1.6.1988 and 31.12.1995 and who are alive on the date of issue of this order. In the case of employees retired between 1.6.1988 and 31.12.1995, such retirees opting for the benefit ordered in para 14 above, the pay of such employees shall be regulated in the Fourth Tamil Nadu Pay Commission scales of pay (pre - 1988 pay scale) by the pay fixing authorities notionally where the employees last served. After revising the pay of such employees the proposals for pension/ family pension revision of the above retired employees shall be forwarded by the Departmental Officers directly to the Office of the Accountant General for authorising the entitled pension. Such pensioners are also entitled for the subsequent pension revisions ordered in G.O.Ms.No.174, Finance (Pay Cell) Department, dated:21.4.1998 and G.O.Ms.No.235, Finance (Pay Cell) Department, dated:1.6.2009 which shall be done by the Treasury Officers/ Sub Treasury Officers/ Pension Pay Officer concerned.” http://www.judis.nic.in 43/52 W.P.No.4874 of 2014 etc., batch
43. The primordial contention of the learned counsel appearing for the petitioners is that, by the impugned G.O. the Government has only taken the dearness allowance as dearness pay drawn during the pre-revised scale of pay based on the 4th Tamil Nadu Pay Commission recommendation, between 01.10.1988 and 31.05.1988 and not the current scale of pay drawn actually at the time of retirement i.e., 10 months preceding the date of retirement of the petitioners who retire from 01.06.1988 to 31.12.1995. The scale of pay in the pre revised scale is lower than the revised scale of pay, now the petitioners are getting lesser pension. According to them, the earlier G.O. has permitted the dearness pay drawn during the 10 months preceding the retirement and hence the petitioners are also permitted to treat the pay actually drawn 10 months preceding the date of retirement as per Rule 31 of the Rules. The said argument of the petitioners cannot be countenanced for the simple reason that, the present G.O. has been issued only to rectify the discrepancy pointed out by the Hon’ble Supreme Court in the earlier round of litigation. By virtue of the impugned G.O. the Government has rectified the defect and permitted the pensioners who have retired between 01.06.1988 to 31.12.1995 to compute average emoluments based on the 4th Tamil Nadu Pay Commission scales of pay with reference to the dearness allowance and http://www.judis.nic.in 44/52 W.P.No.4874 of 2014 etc., batch additional dearness allowance applicable in the pre-revised scale of pay sanctioned from time to time as dearness pay for the entire 10 months preceding retirement.
44. In my considered opinion, by permitting the pensioners to treat the entire dearness allowance and additional dearness allowance as dearness pay, the discrimination pointed out by the Hon'ble Supreme Court has been rectified, now it is not open to the petitioners to contend that dearness allowance which is payable to them at the time of their actual retirement should be taken into consideration.
45. The impugned G.O. has also give an option to the pensioners either to opt for the present formula or retain the current pension, whichever is advantageous to them. Thus, if any of the pensioner is put in a disadvantageous position, that was also taken care of by the impugned G.O. Hence, the impugned G.O. cannot be held as arbitrary. The G.O. also makes it clear that, while calculating the pension based on the pre-revised scale of pay, the excess pay and allowance drawn by the employee in the revised scale of pay prior to his retirement shall be waived as a special case, and those category of pensioners were also taken care of, and any excess pay and http://www.judis.nic.in 45/52 W.P.No.4874 of 2014 etc., batch allowance received by them was also waived. In such circumstances, I am of the view that the impugned G.O. cannot be held as illegal or irrational.
46. Looking from another angle, from the counter affidavit filed by the respondents, it could be seen that the disputed period fall under the 5th Pay Commission period. According to the respondents, the 5th Pay Commission has extended the Central scales of pay to the State Government employees w.e.f. 01.06.1988, by which, the State Government employees pay was revised on par with the Central scales of pay by merging the dearness allowance at the rate of 608 points of All India Consumer Price Index, and on the date of retirement of the pensioners the dearness allowance drawn by them has been merged. Now an option was given to the pensioner for fixation of pay with reference to the 4th Tamil Nadu Pay Commission scales of pay, and other related additional dearness allowance for arriving at the revised pension or to retain the current pension whichever is advantageous to them. In the event of the petitioners getting more pension today as per the impugned G.O., the petitioners are permitted to retain the current pension. That apart, as stated earlier, in the event of any excess amount paid to them is also waived as a special case. In those circumstances, it cannot be said that http://www.judis.nic.in 46/52 W.P.No.4874 of 2014 etc., batch by the impugned G.O. they have been put into a disadvantageous position.
47. So far as the challenge regarding the subsequent clarifications issued by the Government vide letter dated 04.02.2014 is concerned, after issuance of the impugned G.O., the Principal Accountant General has raised some queries regarding the implementation of the impugned G.O., for which, a clarification has been issued by the Government, the relevant portion reads as follows:
Sl. Points Raised Clarification Issued
No.
4 In para 14(II) of the G.O. first cited, it In as much as the Dearness has been ordered that the pensioners Allowance drawn on the retired between 01.06.1988 and date of retirement has 31.12.1995 shall have the option to opt already been merged. The for the formula stipulated in para 14(i) percentage merged in this of the G.O.(OR) to retain the current regard may be excluded pension whichever is advantageous to while refixing pension as on them. While implementing the G.O. 1.1.96. While doing so, if most of the pensioners are eligible to the revised pension happens fix their pension more than that they to be lesser than that of the are drawing as on the date of existing pension, the retirement. However, while refixing pension may be allowed to their pension on 01.01.1996 as ordered draw his existing pension.
in G.O.Ms.No.174, Finance (Pay Cell) Due to above Dearness
http://www.judis.nic.in
47/52
W.P.No.4874 of 2014 etc., batch
Sl. Points Raised Clarification Issued
No.
dated 21.04.1998 the Accountant Allowance merger, if the
General pointed out that only the amount of Dearness
difference between Dearness Allowance already drawn is
Allowance admissible and Dearness found to be in excess, the Allowance actually drawn has to be same need not be taken into taken. In such cases, the proposed account (i.e.) for the period pension as on 01.01.1996 will be less from the date of retirement than that off original pension drawn, upto 31.12.95 and the same before refixation as per G.O.363, may be ignored. Finance Dt.23.08.2013. Hence guidelines on the fixation of pension on 01.01.1996 (w.r.t the revised pension fixed as per the G.O. first cited) and for the calculation of arrears, admissibility of Dearness Allowance percentage to the pensioners from 01.06.1988 to 31.12.1995 due to the merger of Dearness Allowance in their pay, may kindly be issued.
48. In the above clarification, the first respondent only clarified that as the dearness allowance drawn on the date of retirement has already been merged, the percentage merged may be excluded while re-fixing pension as on 01.01.1996, and it is also further clarified in the impugned Government http://www.judis.nic.in 48/52 W.P.No.4874 of 2014 etc., batch letter that, if the revised pension happens to be lesser than that of the existing pension, the pensioner may be allowed to draw his existing pension and due to the dearness allowance merger, if the amount of dearness allowance already drawn is found to be in excess, the same need not be taken into account. The above clarification, in my opinion, is only advantageous to the petitioners and at any rate, it cannot be held that the said clarification is overriding the impugned G.O. Hence, the contention of the petitioners in this regard also cannot be countenanced.
49. The next limb of argument of the petitioners is that the benefit of the impugned G.O. confined only to those pensioners who were alive on the date of issuance of the Government Order and it is not applicable to the family pensioners and hence it is discriminatory. On a careful perusal of the impugned G.O., it can be seen that an option is given to the pensioners either to opt for the new formula or to retain the current pension. The above option can only be exercised by the pensioners who are alive on the date of issuance of the impugned G.O. and that it cannot be extended to the legal representatives of the pensioners or family pensioners. Hence, it cannot be held as arbitrary or discriminatory.
50. It is true the petitioners/pensioners are to be treated as http://www.judis.nic.in 49/52 W.P.No.4874 of 2014 etc., batch homogeneous group and they cannot be discriminated. But in the instant case there is no discrimination between the same class of pensioners and hence the contention of violation of Articles 14 and 16 of the Constitution of India cannot be accepted, the Government Order only rectify the defects pointed out by the Hon’ble Supreme Court in the earlier round of litigation.
51. So far as the judgements relied upon by the learned senior counsel appearing for the petitioner in State of Mizoram Vs. Mizoram Engineering Service Association reported in 2004 6 SCC 218 relates to the fixing pay scales, where there was discrepancy in pay fixation, therefore the said judgement is not factually applicable and not relevant to decide the instant case.
52. In yet another judgemnet in D.S.Nakara Vs. Union of India reported in (1983) 1 SCC 305, wherein a Constitutional Bench of the Hon’ble Supreme Court has held that, there cannot be any discriminatory treatment to the equals in the matter of computation of pension. But in the instant case, I have already held there is no discrimination in fixing the pension and hence, judgement relied upon by the learned senior counsel appearing for the petitioners is also not applicable to the facts of this case. http://www.judis.nic.in 50/52 W.P.No.4874 of 2014 etc., batch
53. Considering all these circumstances, I am of the view that the Government Order and subsequent Government letters impugned in these writ petitions cannot be held as arbitrary or irrational and violative of Articles 14 and 16 of the Constitution of India. I find no reason to set aside the impugned Government Order and the impugned Government letters. Consequently, I find no merit in these writ petitions and the writ petitions deserves only to be dismissed and accordingly dismissed. No costs.
15.05.2020 Index : Yes Internet: Yes kk To
1. The Principal Secretary to the Government, Finance (PGC) Department, Secretariat, Fort St.George, Chennai – 600 009.
2. The Accountant General (A&E), 361, Anna Salai, Teynampet, Chennai – 600 018.
http://www.judis.nic.in 51/52 W.P.No.4874 of 2014 etc., batch V.BHARATHIDASAN, J.
kk PRE-DELIVERY COMMON ORDER in W.P.Nos.4874, 7590, 7622, 15371, 15372, 15597, 15598, 18609, 18620, 18901, 18966, 19667, 20191, 22322, 22471, 23695, 23751, 24856, 24908, 25029, 25702, 25800, 26070, 26241, 26409, 27237, 27998, 29350, 30937, 30938, 30939, 30940, 30941, 30942, 33025, 33065, 33727, 35190, 35191, 35192, 35193, 35194, 35195 of 2014, 3782, 5779, 7115, 12868, 12955, 14312, 30774 and 3864 of 2015 RESERVED ON : 31.01.2020 DELIVERED ON : 15.05.2020 http://www.judis.nic.in 52/52