Central Administrative Tribunal - Allahabad
Ramesh Kumar Tiwari vs M/O Health And Family Welfare on 13 April, 2023
O.A. No.126/2018
(Reserved on 5.4.2023)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Original Application No. 126/2018
This the 13th day of April, 2023
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Ramesh Kumar Tiwari aged about 61 years son of late Sri Fundan
Lal r/o 832, Khaiti Baba,District- Jhansi.
. . . Applicant
By Adv: Shri Surendra Kumar
VERSUS
1. Union of India through Ministry of Health and Family
Welfare, Govt. of India.
2. Director, Central Council for Research in Ayurvedic
Sciences, No. 61-65, Institutional Area, Opp-D, Block,
Janakipuram Delhi.
3. Assistant Director (Ayurved) Regional Research Centre,
Gwalior Road, Jhansi.
..Respondents
By Adv: Shri Raghvendra Pratap Singh
ORDER
By Hon'ble Mr. Justice Om Prakash-VII, Member (J) The present O.A has been filed by the applicant under section 19 of Administrative Tribunals Act, 1985 for directing the respondents to consider the claim of the applicant with regard to monthly pension as given to similar cases of Sri N.L.Verma and Sri Q.A. Khan, Ex-LDC, RRI, Lucknow.
2. The brief facts of the case are that the applicant was appointed as GDA (LDC) at Regional Research Centre (hereinafter referred as RRC) (Ayurvedi) Gwalior Road, Jhanasi w.e.f. 11.1980. Applicant applied through proper channel for UDC on deputation basis in Navodaya Vidyalaya Samiti and applicant joined on 9.12.1991 as UDC on deputation basis. Applicant submitted his technical resignation along with option for retirement to Central Council for Research in Ayurvedic Sciences (in short CCRAS) on 6.6.1995. The applicant absorbed as UDC on1.4.1994 in Navodaya Vidyalaya Samiti. Applicant submitted that in similar matter, in the case of Sri N.L. Verma, Ex-GDA, RRI, Tarikhet who was posted as UDC in Navodaya Vidyalaya Samiti, CCRAS has granted monthly pension continuously. It is further stated that one Qamar Ahmad Khan has also received monthly pension by the Department of Page 1 of 15 O.A. No.126/2018 CCRAS, New Delhi. Applicant retired from Navodaya Vidyalaya Samiti on 31.10.2016 as Office Superintendent. Applicant submitted a detailed representation on 1.7.2017 before the respondent No.2 for consideration of monthly pension of the applicant as has been given to Sri N.L.Verma and Sri Q.A. Khan.
3. Learned counsel for respondents filed Counter Reply, stating therein that answering respondents have no record about posting of the applicant in Navodaya Vidyalaya Samiti. Applicant has to give documentary proof about his posting at Human Resources Development on 9.12.1991. It is further submitted that applicant has enclosed a letter dated 6.6.1995 which is a communication from In-charge Principal, Navodaya Vidyalaya Samiti and is not the technical resignation of the applicant. It is further submitted that in response to the letter dated 17.5.1996 of Navodaya Vidyalaya Samiti, respondent No. 2, i.e. Director General, CCRAS, New Delhi had sanctioned pro-rata retirement benefits i.e. commuted value of pension including terminal benefits, death-cum-retirement gratuity, full and final payment of GPF and encashment of unutilized earned leave and the same were released by the CCRAS to Navodaya Vidyalaya Samiti vide order dated 5.12.1996, 16.12.2000 and 2.12.2004. However, there was no specific request at the end of Navodaya Vidyalaya Samiti or from applicant that monthly pension may be sanctioned. It is further submitted that Officer Incharge , Indian Institute of Ayurveda for Drug Research, Ranikhet vide letter dated 26.12.1993 had forwarded an application of Sri N.L.Verma requested to Director CCRAS, New Delhi that Sri Verma has requested that since he has completed 12 years in the Council, therefore, he may be sanctioned benefit of pro-rata pension as per rules. Accordingly, Sri N.L.Verma was granted monthly pension.
4. Written argument has also been filed by the learned counsel for the applicant stating therein that applicant submitted his application for the post of UDC on deputation basis before Dr. S.K. Narang, Deputy Director (Admn.), Navodaya Vidyalaya Samiti through Dr. N.N. Pathak, Research officer In-charge. Applicant joined Navodaya Vidyalaya Samiti on 9.12.1991. Applicant submitted his technical resignation to CCRAS on 6.6.1995. Applicant was absorbed in Navodaya Vidyalaya Samiti on 1.4.1994. It is further stated that in similarly situated employees, in the case of Sri N.L.Verma and Sri Q.A. Khan, CCRAS has allowed pension to both employees who were earlier employees of CCRAS and later Page 2 of 15 O.A. No.126/2018 on absorbed in Navodaya Vidyalaya Samiti. Learned counsel for the applicant has relied upon on the following case laws:-
i) O.A. No. 730/2017, CAT, Earnakulam Bench dated 11.4.2018 (T.K. Jaya Prakash and another Vs. Principal Controller of Defence Acounts (Pension), Draupadi Ghat, Allahabad and others.
ii) Writ Petition No. 22207 of 2022 (K. Ganesh Vs. Registrar General, Administrative Tribunal and another ) dated 2.8.2007 Hon'ble Madras High Court.
iii) Civil Appeal No. 604 of 2010 UOI Vs. K. Ganesah decided on 1.9.2016 Hon'ble Supreme Court.
iv) Review Petition Civil No. 465 of 2017 in Civil Appeal No. 6048 of 2010 (UOI Vs. K. Ganesh decided on 22.3.2017), Hon'ble Supreme Court.
5. No written submission has been filed by the learned counsel for the respondents.
6. Heard the learned counsel for the parties
7. Learned counsel for the applicant submits that applicant was appointed as GDA (LDC) on 1.1.1980 and joined the post of UDC in Navodaya Vidyalaya Samiti on deputation on 9.12.1991 and submitted technical resignation on 6.6.1995. Applicant was absorbed in Navodaya Vidyalaya Samiti on 1.4.1994, since he was employee of CCRAS from 1.1.1980 to 31.3.1994, i.e. for about 14 years, he is entitled for pension. Learned counsel for applicant further argued that similarly situated employees, namely N.L.Verma and Qamar Ahmad Khan who were earlier employees of the council and later on absorbed in the Navodaya Vidyalaya Samiti were allowed the monthly pension by the CCRAS. Therefore, applicant is also entitled for the pension because he had worked for about 12 years in CCRAS.
8. Learned counsel for the respondents argued that respondents have no record about posting of the applicant in Navodaya Vidyalaya Samiti. Letter dated 6.6.1995 is a communication from In-charge Principal, Navodaya Vidyalaya Samiti and is not the technical resignation of the applicant. In respondese to the letter dated 17.5.1996 of Navodaya Vidyalaya Samiti, respondent No. 2, i.e. Director General, CCRAS, New Delhi had sanctioned pro-rata retirement benefits i.e. commuted value of pension including terminal benefits, death-cum-retirement gratuity, full and final payment of GPF and encashment of unutilized earned leave and the same were released by the CCRAS to Navodaya Page 3 of 15 O.A. No.126/2018 Vidyalaya Samiti vide order dated 5.12.1996, 16.12.2000 and 2.12.2004. However, there was no specific request at the end of Navodaya Vidyalaya Samiti or from applicant that monthly pension may be sanctioned. It is further submitted that Officer In-charge , Indian Institute of Ayurveda for Drug Research, Ranikhet vide letter dated 26.12.1993 had forwarded an application of Sri N.L.Verma requested to Director CCRAS, New Delhi that Sri Verma has requested that since he has completed 12 years in the Council, therefore, he may be sanctioned benefit of pro-rata pension as per rules. Accordingly, Sri N.L.Verma was granted monthly pension.
9. I have considered the submissions raised by the learned counsel for the parties and have gone through the entire record.
10. From perusal of record, it is admitted fact that applicant was appointed in Regional Research Centre (Ayurveda) Gwalior Road, Jhanasi w.e.f. 1.1.1980 and went on deputation in Navodaya Vidyalaya Samiti w.e.f. 9.12.1991. He was absorbed in Navodaya Vidyalaya Samiti on 1.4.1994. Before absorption in Navodaya Vidyalaya Samiti, he had lien in CCRAS i.e. upto 31.3.1994. Meaning thereby, he was employee of CCRAS from 1.1.1980 till 31.3.1994 i.e. for more than 14 years. In the case of Sri N.L. Verma, Officer In-charge, Indian Institute of Ayurveda for Drug Research, Ranikhet vide letter dated 26.12.1993 forwarded an application of Sri N.L.Verma requested to Director CCRAS, New Delhi that Sri Verma has requested that since he has completed 12 years in the Council, therefore, he may be sanctioned benefit of pro-rata pension as per rules. Accordingly, Sri N.L.Verma was granted monthly pension. When in the similarly situated employee, respondents have granted monthly pension, then the court is also of the view that applicant is also entitled for monthly pension because his lien was maintained in CCRAS from 1.1.1980 to 31.3.1994 before absorption in Navodaya Vidyalaya Samiti i.e. on 1.4.1994. The contention of the respondents that respondents have no record about posting of applicant in Navodaya Vidyalaya Samiti is not acceptable because in para 10 of the counter affidavit, respondents have accepted that since there was a request from Navodaya Vidyalaya Samiti, Lucknow vide letter dated 17.5.1996 to the effect that payment of pensionary benefits , leave encashment and other benefits, Director, CCRAS, New Delhi sanctioned pro-rata retirement benefits i.e. commuted value of pension, including terminal benefits, gratuity, GPF, leave encashment. Hence, it is admitted fact that he has knowledge Page 4 of 15 O.A. No.126/2018 about the posting of applicant in Navodaya Vidyalaya Samiti. In the same para of Counter reply, respondents have accepted that since Sri N.L. Verma had completed 12 years service in Council, he was granted pro-rata pension as per rules, whereas applicant of the present O.A. has completed 14 years of service in council, but he has been denied the pro-rata pension.
11. In the case of T.K. Jaya Prakash and another Vs. Principal Controller of Defence Accounts (Pension), supra, CAT, Earnakulam Bench observed as under:-
"OFFICE MEMORANDUM Subject: Restoration of full pension of absorbee pensioners in view of the order dated 01.09.2016 of Hon'ble Supreme Court in Civil Appeal No. 6048/2010 and Civil Appeal No. 6371/2010.
The undersigned is directed to say that in accordance with the instructions which existed before 31.03.1995, a Government servant, on absorption in a Public Sector Undertaking or an Autonomous Body, had the option to draw pro-rata gratuity and a lump sum amount in lieu of pension. The option regarding payment of lump sum amount in lieu of monthly pension on absorption in a PSU or autonomous body was available in terms of the instructions issued vide Department of Expenditure's O.M. No. 26(18)-E.V(B)/75 dated 08.04.1976, Department of Personnel & Training's O.M. No. 28016/5/85-Estt.(C) dated 31.01.1986 and Department of Pension & Pensioners' Welfare' O.M. No. 4(12)/85-P&PW dated 31.03.1987. This option was also available to Government employees on absorption in PSUs/autonomous bodies of the State Governments and Joint Sector undertakings in teens of this Department's O.M. No. 4/43/88-P&PW(D) dated 16.10.1989. The teens and conditions for absorption of Government employees consequent on conversion of a Government Department into a PSU or autonomous body issued vide this Department's O.M. No. 4/18/87-P&PW(D) dated 5.7.1989 also provided fora similar option of lump sum payment in lieu of monthly pension.
2. In accordance with Rule 37-A of the Central Civil Services (Pension) Rules, 1972, incorporated vide Department of Expenditure's Notification No. 44(1)- E.V./71 dated 09.04.1973, on exercise of the above option, an employee Page 5 of 15 O.A. No.126/2018 was entitled to a lump sum amount not exceeding the commuted value of one-third of the pension and terminal benefit equal to twice the aforesaid lump-sum amount, subject to the condition that the Government servant surrendered his right of drawing two-thirds of his pension.
3. The option to draw a lump sum amount in lieu of pension was withdrawn vide this Department's O.M. No. 4/42/91- P&PW(D) dated 31st March, 1995. Accordingly, the erstwhile Rule 37-A was omitted from the CCS(Pension) Rules, 1972 vide Notification No. 4/42/91-P&PW(D) dated 25.06.1997.
4. In implementation of the Order dated 15.12.1995 of Hon'ble Supreme Court in WP(C) No. 11855/85, instructions were issued vide this Department's O.M. No. 4/3/86- P&PW(D) dated 30.09.1996 for restoration of one-third commuted portion of pension of Government servants who had drawn lump sum payment on absorption in a PSU/autonomous body. Further instructions were issued, from time to time, for computation and revision of the one- third restored pension of such absorbee pensioners and for payment of the attendant benefits like dearness relief, etc. to such absorbee pensioners. Orders for revision of the one- third restored pension w.e.f. 01.01.2006 of such absorbee pensioners were issued vide this Department's O.M. No 4/38/2008- P&PW(D) dated 15/09/2008, O.M. No. 4/30/2010-P&PW(D) dated 11/07/2013. and O.M. No. 4/38/2008-P&PW(D) dated 04/08/2016. These absorbee pensioners were, however, entitled to dearness relief and age-related additional pension based on the notional full pension.
5. Hon'ble High Court of Judicature of Madras, in its judgement dated 02-08- 2007 in Writ Petition no. 22207/2002 filed by one Sh. K. Ganesan, an officer in the office of Controller General of Accounts, held that surrendering of the right for drawal of 2/3rd of Pension after its commutation, as provided under Rule 37-A (b), was repugnant to Section 12 of the Pensions Act, 1871 and that the petitioner was lawfully entitled for the restoration of his pension after the expiry of the period of commutation of 2/3`d pension. Hon'ble High Court, accordingly, directed Page 6 of 15 O.A. No.126/2018 restoration of 2/3`d pension and payment of arrears accordingly.
6. An SLP(Civil) No. 4054/2008 (converted into Civil Appeal No. 6048/2010) was filed by the Union of India challenging the aforesaid order dated 02-08-2007 of Hon'ble High Court of Judicature of Madras. In its order dated 1.9.2016, Hon'ble Supreme Court found no justification to interfere with the order dated 02.08.2007 of Hon'ble High Court directing restoration of 2/3rd pension in respect of the respondent (Shri K. Ganesan), after the expiry of the requisite period of commutation. The Civil Appeal No. 6048/2010 was accordingly dismissed by Hon'ble Supreme Court. In the said judgement dated 1.9.2016, similar direction was passed by Hon'ble Supreme Court in the Civil Appeal No. 6371/2010 for restoration of 2/3`d pension in respect of the petitioners, Shri K.L. Dhall, an absorbed employee of Ministry of Civil Aviation and member pensioners of Welfare Association of Central Government Officers, CAD Absorbed in PSU.
7. Review Petitions No. 465/2017 and No. 472/2017 were filed by Union of India in the Supreme Court against the aforesaid order dated 1.9.2016. Instructions were separately issued to the office of Controller General of Accounts and the Ministry of Civil Aviation vide OM No.4/34/2002- P&PW(D).Vol.II dated 21-12- 2016 and OM No. 4/34/2002- P&PW(D).VoLII dated 21-12-2016 respectively, for 5 implementation of the orders of Hon'ble Supreme Court in respect of the petitioner/respondent pensioners in the aforesaid Civil Appeals, subject to the final outcome of the Review Petitions. The aforesaid Review Petitions No. 465/2017 and No. 472/2017 have been dismissed by Hon'ble Supreme Court on 22.03.2017.
8. The matter has been examined in consultation with the Department of Legal Affairs and the Ministry of Finance (Department of Expenditure). It has been decided to extend the benefit of order dated 02-08-2007 of the Hon'ble Madras High Court and the Order dated 01-09-2016 of the Hon'ble Supreme Court to all similarly placed absorbee pensioners. Accordingly, all such absorbee petitioners who had taken 100% lump-sum amount in lieu of pension on absorption in PSUs/Autonomous Bodies in accordance with the then existing Rule 37-A and in whose case 1/3 pension had been Page 7 of 15 O.A. No.126/2018 restored after 15 years, may be allowed restoration of full pension after expiry of commutation period of 15 years from the date of payment of 100% lump-sum amount.
9. The absorbee pensioners whose full pension is restored in terms of the above instructions would also be entitled to revision of their pension in accordance with the instructions issued from time to time in implementation of the recommendations of the Pay Commissions, including the 7th Central Pay Commission.
10. In their application to the persons belonging to the Indian Audit and Accounts Department, these orders issue in consultation with the Comptroller and Auditor General of India.
11. Ministry of Agriculture etc. are requested to bring the contents of these Orders to the notice of Controller of Accounts/Pay & Accounts Officers and 6 Attached & subordinate Offices under them on a top priority basis and for taking necessary action for implementation of the above instructions. All pension disbursing offices are also advised to prominently display these orders on their notice boards for the benefit of pensioners.
12. This issues with the approval of Ministry of Finance (Department of Expenditure) vide their ID Note No.1(11)/EV/2017 dated 26-05-2017 and dated 13-6-2017.
13. Hindi version will follow.
Sd/- (Harjit Singh) Director
2. Therefore, the applicants will be eligible for the benefits which they would have received normally at the time when they terminated their services with the respondents. The matter is covered by Annexure A8. Paragraph 7 of it reads :
"The resultant position that emerges from the pronouncement of the Central Administrative Tribunal as well as the different High Courts and the Apex Court is that, computation of pension in the matter of implementation of the 6th Pay Commission Report has to be at 50% of the pay scale with respect to the scale of pay applicable to the post in question and not to the corresponding scale of pay to the one at which the incumbent has retired. On the basis of the above dicta, consequential orders have been passed and payments have also been made in implementation thereof."Page 8 of 15 O.A. No.126/2018
3. Therefore the applicants would be eligible to these benefits also along with all the consequential benefits including family pension as stated above. Benefits to be made available within two months. OA is allowed. No costs."
12. In the case of K. Ganesan Vs. The Registrar, Central Administrative Tribunal, Madras bench, Chennai (supra), Hon'ble High Court of Madras observed as under:-
"The petitioner is aggrieved against the order of the Central Administrative Tribunal dated 28.12.2001 passed in O.A.No.471 of 2001. The petitioner was originally employed as Deputy Controller General of Accounts in the third respondent organisation. He opted to join a public sector undertaking, viz., the Bharat Heavy Electricals Limited based on the Government of India O.M.No.28016/5/85-Estt.(c) dated 31.01.1986. Accordingly, he submitted his resignation on 12.05.1986 to the third respondent and sought for its acceptance with effect from 28.05.1986. He also submitted his option on 12.05.1986 for receipt of pensionary benefits as per paragraph-4(i)(b) of the Provisions contained in O.M.No.28016/5/85-Estt.(c) dated 31.01.1986, which provided for a particular manner of commutation of pension and of 1/3rd and 2/3rd apart from pro-rata gratuity as prescribed under Rule 37-A of the CCS Pension Rules. The resignation of the petitioner was accepted and he was relieved from the Government of India Service with effect from 26.05.1986 afternoon. He joined the services of BHEL on 03.06.1986. By virtue of the option for receipt pensionary benefits exercised by the petitioner, the entire pension of the petitioner was commuted and the same was paid to him in July, 1986.
2. Be that as it may, in the Judgment of the Honourable Supreme Court in "Common cause" case reported in (AIR 1987 SC 210), wherein the Honourable Supreme Court held that on the expiry of fifteen years from the date of commutation, the entire pension would get revived in respect of the Government servants who have commuted their pension partially. The said judgment was to take effect from 01.04.1985. To give effect to the Judgment, the third respondent is stated to have issued O.M.No.34/2/86-P & PW dated 05.03.1987 stating that the Central Government employees who got themselves absorbed in the public sector undertakings and who had received or opted to receive a lump sum amount in lieu of pension were not entitled to the benefit granted by the Honourable Supreme Court in the decision reported in 1997(1) SCC 142. An association called welfare association of absorbed Central Government Employees in Public Sector undertakings approached the Honourable Supreme Court for the extension of the benefits granted in the "Common Cause"
case to the absorbed employees also which was rejected by the Honourable Supreme Court. However, the said association approached the Honourable Supreme Court again and in the decision reported in 1996(2)SCC-187, the Honourable Supreme Court once again considered the validity of O.M dated 05.03.1997. While doing so, the Page 9 of 15 O.A. No.126/2018 Honourable Supreme Court took note of Rule 37 and 37-A of the CCS Pension Rules, 1972, and ultimately held that in so far as the 1/3rd commuted pension was concerned, even the absorbed employees were entitled for the benefits granted in the "Common Cause" Judgment and accordingly granted the same. In the ultimate conclusion, the Honourable Supreme Court held as under:
"For the foregoing reasons, we hold that the petitioners are entitled to the benefits as given by this Court in "Common Cause" case so far as it related to restoration of one-third of the commuted pension. Consequently, the impugned paragraphs-4 of Office Memorandum dated 05.03.1987 is quashed. The writ petitions are accordingly allowed to the extent indicated above. No costs."
3. While granting the said relief, the Honourable Supreme Court also referred decision reported in Welfare Association of Absorbed Central Government Employees in Public Enterprises vs. Union of India reported in (1991(2) SCC
265), distinguished the same by stating that Rule 37-A was not brought to the notice of the Court. That apart, in a subsequent decision in Welfare Association of A.C.G.E in P.E v. Arvind Verma reported in ( AIR 1998 SC 2862), by way of clarification the Honourable Supreme Court stated as under in paragraph-6.
"After hearing counsel on both sides, we make it clear that the respondents are liable to restore not only the pension as ordered by this Court in the said judgment, but also all the attendant benefits as given to the Central Government pensioners. We hold that there was some genuine doubt on the part of the respondents in construing and giving effect to the judgment of this Court and, therefore, there is no contempt. We now direct the respondents to comply with the judgment of this Court as explained hereinbefore within three months from this date."
4. Subsequently, in the decision reported in AIR 2000 SC 3387 (P.V.Sundara Rajan v. Union of India), the question arose as to whether the absorbees who had commuted 100% pension were also entitled for the relief granted in the common cause case. While dealing with the said claim, the Honourable Supreme Court has held as under in paragraph-
13.
"13. The partly claimed by Lt.Col.Malhotra and other absorbees who had commuted 100% pension, in our view, is entirely misplaced. The contention that what is commuted or given up is an amount and not the right to receive pension or right to receive post-commutation revision and attendant benefits' including dearness relief on the gross entitled pension on the dates they were granted to other Government pensioners, is only illusory. The decision in the case of State of T.N. v. V.S.Balakrishnan, 1994 Suppl.(3)SCC 204: (1994 AIR SCW 3277) on which reliance was placed by Mr.Gopal Subramanium, Senior Advocate has no applicability to the point in issue. Those who commuted 100% pension continue to remain non-pensioners till their pension is restored. In Welfare Association Case (1998 AIR SCW 1700: AIR 1998 SC 2862) (Supra), persons Page 10 of 15 O.A. No.126/2018 who commuted the full ension and who will not be given any monthly pension by deeming monthly pension to have been reduced to nil has been treated as a separate category. Those who commute 100% pension are not entitled to the benefit of dearness relief on full pension or other benefits as claimed herein. We also do not find any discrimination in so far as this class is concerned."
5. It is in the above stated background, the petitioner made a representation to the third respondent on 25.05.1997 contending that by virtue of Section 12 of the Pension Act 1871, the surrendering of his own right for drawing 2/3rd of his pension by opting under paragraph-4(ii)(b) of O.M dated 31.01.1986, read along with Rule 37-A of the CCS Pension Rules, was prohibited and therefore he was entitled for the restoration of his 2/3rd pension also after the period of commutation. The said claim of the petitioner was rejected by the third respondent in its communication dated 28.08.1998. Challenging the same, the petitioner preferred the present O.A.No.471 of 2001 before the Tribunal wherein the petitioner sought for a declaration that Rule 37-A (b) of the CCS Pension Rule, 1972 read with Clause(b) in O.M dated 31.01.1986 was illegal and in violation of Section 12 of the Pension Act to call for the records of the second respondent dated 28.09.1998 rejecting the petitioner's claim and issue directions to the respondents 2 and 3 to pay pension to the petitioner on the 2/3rd commuted pension from the date of commutation after adjusting the amount already paid with interest.
6. The claim was resisted by the contesting respondent herein contending that the decisions of the Honourable Supreme court are not applicable to the petitioner and that based on the said decision, there was no scope for the petitioner to challenge the validity of Rule 37-A of the CCS pension Rule and claim for restoration of the 2/3rd pension.
7. The tribunal by taking note of the option exercised by the petitioner as provided under paragraph-4(ii)(b) of Official Memorandum dated 31.01.1986, surrendering his right to claim 2/3rd pension once and for all held that none of the decisions of the Honourable Supreme Court referred to above enure to the benefit of the petitioner. The tribunal also held that the challenge made to the validity of Rule 37-A by the petitioner was not maintainable and dismissed the O.A.
8. Assailing the order of the tribunal, Mr.Balan Haridass, the learned counsel appearing for the petitioner after referring to the above decisions of the Honourable Supreme Court, contended that in all the above referred to decisions what was primarily dealt with was only the entitlement of absorbed employees to the benefit which was granted in the "common cause" case on par with the Central Government Servants and that in none of the decisions, the validity of Rule 37-A read along with paragraph-4(ii)(b) of O.M., dated 31.01.1986 vis-a-vis Section 12 of the Pensions Act, 1971, was never canvassed and therefore the conclusion of the tribunal in the order impugned in the writ petition is liable to the interfered with. According to the learned counsel, when under Section 12 of the Pensions Act, there is a prohibition imposed on the pensioner himself to trade off his right of pension, the Page 11 of 15 O.A. No.126/2018 surrendering of such a right in so far as it related to 2/3rd pension while exercising the option at the time of absorption in a public sector undertaking was not valid and that the very provisions providing for surrendering of such a right under Rule 37-A as well as the provisions contained in the Official Memorandum dated 31.01.1986 are consequently declared to be invalid.
9. As against the above submissions, Mr.S.Udayakumar, learned Senior Central Government Standing Counsel, would contend that when under Section 10 of the Pensions Act provision has been made for commutation of part or whole of the pension on such terms deem fit, the provision made under Rule 37-A providing for the commutation of the entire pension on certain terms including a provision of surrendering of the right to claim 2/3rd pension cannot be held to be in violation of the Pensions Act. According to the learned Senior Central Government Standing Counsel, in any event, the petitioner having accepted the commutation of the 2/3rd pension by subjecting himself to Rule 37-A and having availed the commutation of such pension, cannot be permitted to reopen the same after 11 long years as that would unsettle settled things. The learned Senior Central Government Standing Counsel also pointed out that Rule- 37-A (b) providing for surrendering of 2/3rd pension itself came to be ultimately withdrawn on 31.03.1995 and therefore the validity of the said Rule need not be gone into in this writ petition.
10. After hearing the learned counsel for the petitioner and the Senior Central Government Standing Counsel, and after perusing the impugned order of the tribunal as well as the various decisions placed before us, at the outset we wish to point out that by virtue of the decisions of the Honourable Supreme Court reported in 1996(2) SCC 187, (Welfare Association of Absorbed Central Government Employees in Public Enterprises v. Union of India), what ever rights which were available to a Government servant of the Central Government was granted in the common cause case was mutatis mutandis made available to even the absorbees. In fact by virtue of the said decision, it is no longer open to the contesting respondents to contend that after the absorption in the public sector undertakings, the applicability of either the Pensions Act or CCS rule would cease to apply.
11. The Honourable Supreme Court has asserted in unequivocal terms the rights of the absorbees for pension along with other attendant benefits under the provisions of the Pensions Act read along with CCS Pension Rules for the period of service rendered by the absorbees in the Central Government. In the light of the said settled legal position, in so far as the right of the absorbees to base their claim by relying upon the provisions of the Pensions Act and the CCS Pension Rules framed thereunder can no longer be questioned. As far as the present contention raised by the petitioner, based upon Section 12 of the Pensions Act is concerned, in none of the above referred to decisions of the Honourable Supreme Court, the said question was focused in the manner in which it is now raised before us. Though in the decision reported in 1996(2) SCC-187(Welfare Association of Absorbed Central Government Employees Page 12 of 15 O.A. No.126/2018 in Public Enterprises v. Union of India), the issue was raised by making a reference to O.M., dated 31.01.1986 as well as Rule 37-A of the CCS Pension Rules, the question was confined to the limited extent as to whether the right of the absorbees to claim the benefits as granted in the common cause case was available to them in so far as it related to 1/3rd commuted pension pursuant to their obsorption in the public sector undertakings for the period of service rendered in the Central Government Organisation. The Honourable Supreme Court has countenanced such a right and held that such benefit which was made available in the common cause case to the Central Government Employees was equally available to the absorbees in respect of 1/3rd commuted pension. Though we made our anxious consideration to the decisions reported in 1991(2)SCC 265 (Welfare Assn. Of Absorbed Central Government Employees v. Union of India, 1996(2) SCC-187 (Welfare Association of Absorbed Central Government Employees in Public Enterprises v. Union of India), AIR 1998 SC 2862 (Welfare Assocn. Of A.C.G.E., in P.E v. Arvind Verma), and AIR 2000 SC 3387 (P.V.Sundara Rajan v. Union of India), in none of the decisions, the question as to the prohibition imposed under Section 12 of the Pensions Act to surrender ones own right of a pensioner was never considered. In paragraph-13 of the decision of the Honourable Supreme Court reported in AIR 2000 SC 3387, the Honourable Supreme Court while holding that the absorbees who had commuted 100% pension, continue to remain non-pensioners made clear, such position would be prevalent only till their pension is restored. Therefore, when in the case on hand, when the petitioner who also sought for 100% commutation of pension at the time of his absorption in BHEL in the year 1986, in the light of the decision of the Honourable Supreme Court reported in 1996(2) SCC-187 (Welfare Association of Absorbed Central Government Employees in Public Enterprises v. Union of India), he was fully entitled for the benefits granted to the Government Servants in the common cause case in so far as it related to 1/3rd pension commuted by him. By virtue of such a declaration of law made by the Honourable Supreme Court which made it clear that the petitioner was nevertheless a pensioner, it will have to be held that as a pensioner, he would be entitled for the protection under Section 12 of the Pensions Act 1871 in so far as it related to surrendering of his rights as provided under Rule 37-A of the CCS Pension Rules. In other words, we hold that having regard to the above statement of law as enunciated by the Honourable Supreme Court in the decision reported in 1996(2) SCC-187(Welfare Association of Absorbed Central Government Employees in Public Enterprises v. Union of India), the petitioner would be governed by the provisions of Pensions Act 1871 and consequently the case of the petitioner will have to be examined in the light of the provisions contained therein. When once we reach the above said conclusion, thereafter the question is whether the commutation of whole of the pension by the petitioner in so far as it related to 1/3rd and 2/3rd of it based paragraph-4(ii)(a)(b) of O.M., dated 31.01.1986 read along with Rule 37-A can be held to have disabled the petitioner from seeking for restoration of such pension as has now been claimed in the O.A. Page 13 of 15 O.A. No.126/2018
12. Section 12 of the Pensions Act, 1871, reads as under:
"12- Assignments etc., in anticipation of pension to be void.
All assignments, agreements, sales and securities of very kind made by the person entitled to any pension, pay or allowance mentioned in section 11 in respect of any money not payable at or before the making thereof on account of such pension, pay or allowance or for giving or assigning any future interest therein are null and void."
13. Under Section 10 as stated by us earlier, while commutation of pension for the whole or any part of it can be opted by a pensioner based on such terms fixed under the Rules, it will have to be stated that such enabling provision providing for commutation for either part or whole of the pension can only for commutation purposes and that under the guise of commutation, it will not be open for the Government to once and for all wipe of the very right to restoration of such pension after the expiry of the period of commutation. In fact, Rule 37-A clause (b) though uses the expression the commutation of balance amount of pension namely the 2/3rd of pension, the stipulations contained therein providing for such commutation of 2/3rd pension would be subject to surrendering of the right of Government servant, for drawing the 2/3rd pension would run counter to the very concept of commutation which will not be in consonance with Section 10 providing for commutation of pension alone and not the right to claim pension after the period of commutation.
14. That apart, even if the petitioner was obliged to surrender such a right for the drawal of 2/3rd of his pension by agreeing for the terms contained in Rule 37-A of Pension Rules in as much as such a wholesale surrender of the right to pension as contained in the said Rule conflicts Section 12 of the Pensions Act, it will have to be held that the Rules providing for such surrendering of right in opposition to Section 12 of the Act cannot be permitted to operate. When under Section 12 of the Act, there is a prohibition imposed on the pensioner himself to barter away his right under very many circumstances except as provided under Section 12-A of the Pensions Act, we are convinced that surrendering of the right for drawal of 2/3rd of Pension after its commutation as provided under Rule 37-A (b) is repugnant to Section 12 and is straight away hit by the prohibition imposed under Section 12. Consequently any action based on Rule 37-A(b) is wholly illegal and therefore the surrendering of rights of the petitioner for drawing 2/3rd of his pension at the time of its commutation to that extent can not operate against his interest. We therefore declare that such surrendering rights by the petitioner at the time of his absorption in the year 1986 while commuting 2/3rd of his pension, was invalid and consequently the petitioner was lawfully entitled for the restoration of his pension after the expiry of the period of commutation of 2/3rd pension.
15. Having regard to our above conclusion, we set aside the order of the third respondent dated 28.09.1998 and direct the second and third respondents to restore the pension payable to the petitioner after the expiry of period of Page 14 of 15 O.A. No.126/2018 commutation of 2/3rd pension and pay all the arrears payable to him and continue to pay the same for the future period. While directing the respondents 2 and 3 to restore the petitioners 2/3rd pension after the expiry of its commutation period, we however refrain ourselves from directing payment of interest on the arrears, inasmuch as, the petitioner came forward with this claim for the first time in the year 1987, that is nearly after 11 years after his retirement. We therefore do not find any justification for granting interest while restoring the petitioner's 2/3rd pension after commutation. The writ petition stands allowed. The impugned order is set aside with the direction for restoration of 2/3rd pension along with direction for payment of arrears as stated above. The second and third respondents are hereby directed to comply with our directions within eight weeks from the date of receipt of a copy of this order. There is no order as to costs."
13. In Civil Appeal No. 6048 of 2010 with Civil Appeal No. 6371 of 2010, Union of India and another Vs. K.Genesan (Dead) (supra), Hon'ble Apex Court allowed the appeal and set aside the order of Hon'ble High Court and directed that the appellants shall be entitled for restoration of their 2/3rd pension, after the expiry of the requisite period of commutation.
14. Review Petition (Civil) No. 465 of 2017 in Civil Appeal No. 6048 of 2010 is also dismissed on the ground of delay as well as on merits by the Hon'ble Apex Court vide order dated 22nd March,2017.
15. Considering the facts and circumstances of the case and in the light of the aforesaid judgments, the O.A. is allowed. Respondents are directed to consider the claim of the applicant with regard to monthly pension as given to similarly situated employee namely, Sri N.L.Verma and Sri Q.A. Khan, Ex-LDC, RRI, Lucknow, in accordance with rules, because applicant had worked in Regional Research Centre (Ayurveda), Jhansi from 1.1.1980 to 9.12.1991 (for about 12 years) and maintained his lien in CCRAS up to 31.3.1994 till the date of absorption i.e. on 1.1.1994 in Navodaya Vidyalaya Samiti. Applicant submitted technical resignation on 6.6.1995. The aforesaid exercise shall be completed within a period of 30 days from the date of receipt of certified copy of this order.
16. There shall be no order as to costs.
(Justice Om Prakash-VII) Member (J) HLS/-
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