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(5). Learned counsel for the petitioner contended that the Haryana Govt. vide letter dated 02.06.1989 (Annexure P13) had allowed restoration of commuted portion of pension even to those who sought premature retirement or were retired compulsorily before the age of superannuation, after full value of commutation, and also notional interest stands recovered. He further highlighted that the Government of India, Ministry of Personnel, vide memo dated 30.09.1996 (Annexure P15), in compliance with the directions of the Supreme Court in Writ Petition (C) No.11855/1985 "Welfare Association of Absorbed Central Govt. Employees in Public Sector Enterprises and others vs. Union of India, AIR 1996 SC 1201, decided that the benefit of restoration of commuted pension shall be admissible to all those Government employees who had been absorbed in Public Sector Undertaking/autonomous/statutory bodies notwithstanding the fact that having commuted the full pension, they were not in receipt of any monthly pension. It was further averred that the lump-sum amount paid gets adjusted by about 10 or 12 years and therefore, the Government must restore the commuted portion of one-third pension since the commuted portion out of the pension is ordinarily recovered within about 12 years.

(15). Heard learned counsel for the parties and gone through the record. (16). Issues concerning the pension of Government employees absorbed in public sector undertakings (absorbees) have been examined by Supreme Court from time to time. It all started with the decision of Hon'ble Supreme Court in Common Cause v. Union of India, (1987) 1 SCC 142 which was a petition under Article 32 of the Constitution filed by Common Cause, a registered society and three retired government servants praying to strike down certain provisions of the Central Civil Services (Commutation of Pension) Rules, 1981. As per the Rules then prevalent when a pensioner commuted any part of his pension up to the authorised limit (which in the case of civilians was upto one- third while in the case of defence personnel, it was up to 43 per cent in the case of officers and up to 45 per cent in respect of other ranks) his pension was reduced for the remaining part of his life by deducting the commuted portion from the monthly pension. The contention of the petitioners was that the lump sum amount paid at the time of commutation gets adjusted by about 10 or 12 years and therefore, the Government must be directed to restore the commuted 6 of 16 Neutral Citation No:=2023:PHHC:123555 portion of one-third pension. It was also observed that there had been a substantial improvement in the life expectancy of the people in India, hence there was no justification for denying the restoration of the commuted one-third portion of pension after its adjustment in a period of 10 or 12 years. During the pendency of the case the Union of India agreed to restore the commuted portion of the pension in regard to all civilian employees at the age of 70 years or after 15 years, whichever is later, and agreed to make this effective from 1-4-1986. The Apex Court had directed that it is not necessary to refer to the age of the commuting pensioner when the benefit would be restored. It would be sufficient that on the expiry of fifteen years from the period of retirement such restoration would take place. It was directed to be made effective from 1-4-1985. (17). The Union of India while giving effect to the above judgment denied the same benefit to the absorbees by inserting para 4 in the OM dated 5- 3-1987 which read as follows:-

(18). In Welfare Assn. of Absorbed Central Govt. Employees in Public Enterprises v. Union of India, (1996) 2 SCC 187, the association of absorbed Central Government employees sought quashing of the above-reproduced para-

4. The Apex Court in its decision considered the scope of Rule 37-A of the CCS (Pension) Rules, 1972 and held that in so far as commutation of one-third of the pension is concerned, the absorbees as well as petitioners in Common Cause's 7 of 16 Neutral Citation No:=2023:PHHC:123555 case (supra) stood on similar footing with no difference. So far as the balance of two-third pension is concerned, the absorbees had received the commuted value (terminal benefits) on condition of their surrendering of their right of drawing two-thirds of their pension which was not the case with the petitioners in Common Cause's case (supra). Thus the denial of benefit given to petitioners in Common Cause's case (supra) to the absorbees violated Articles 14 and 16 of the Constitution. It was held that the reasoning for restoring one-third commuted pension in the case of Common Cause's case (supra) equally applies to the restoration of one-third commuted pension in the case of the absorbees. The impugned para 4 in OM dated 5-3-1987 was quashed.

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31.01.1986 was illegal and in violation of Section 12 of the Pension Act. He prayed for directions to the respondents to pay him pension on the ⅔rd commuted pension from the date of commutation after adjusting the amount already paid with interest. (The claim of the petitioner herein is similar). The OA was dismissed. The question before the Madras High Court thus was whether the commutation of whole of the pension in so far as it related to 1/3rd and 2/3rd of it based on paragraph-4(ii)(a)(b) of O.M., dated 31.01.1986 read along with Rule 37-A could be held to have disabled him from seeking for restoration of pension. (21). The High Court held that surrendering of the right for withdrawal of 2/3rd of Pension after its commutation as provided under Rule 37-A (b) was repugnant to Section 12 of the Pensions Act. 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. Section 12 of the Pensions Act, 1871 was referred which provided that all assignments, agreements, sales and securities of every 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. The High Court thus observed that:-