S.C. Parasher, Deputy Director ... vs Union Of India (Uoi) Through The ...
2003 Latest Caselaw 1387 Del

JUDGMENT

Madan B. Lokur, J.

1. The Petitioner is aggrieved by an order dated 20th September 2002 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (for short the Tribunal) dismissing his original application being O. A. No. 480 of 2001.

2. The Petitioner retired as Deputy Director General, All India Radio on 31st March 1979. At that time, the Petitioner was in the pay scale of Rs. 2000-2250. The scale of pay of the post of Deputy Director General was subsequently revised to Rs. 2250-2500 with effect from 13th January 1984. On the recommendation of the Fifth Central Pay Commission, the pay scale of Rs. 2250-2500 was revised to Rs. 18, 400-22, 400 and the pay scale of Rs. 2000-2250 was revised to Rs. 14, 300-18, 300 with effect from 1st January 1996.

3. On 17th December 1998 the Government of India issued a Memorandum on the subject of implementation of Governments decisions on the recommendations of the Fifth Central Pay Commission relating to retirement benefits. The relevant portion of the Memorandum reads as follows: --

"The undersigned is directed to say that in the wake of a large number of representations received by the Government from the Pensioners Associations as well as individuals, the Government has reconsidered its decision on the recommendations of the Fifth Central Pay Commission regarding revision of pension/family pension as contained in paras 137.14 and 134.30 of the report. The President is now pleased to decide that w.e.f. 1.1.1996, pension of all pensioners irrespective of their date of retirement shall not be less than 50% of the minimum pay in the revised scale of pay introduced w.e.f. 1.1.1996 of the post last held by the pensioner. However, the existing provisions in the rules governing qualifying service and minimum pension shall continue to be operative. Similarly w.e.f. 1.1.1996 family pension shall not be less than 30% of the minimum pay in the revised scale introduced w.e.f. 1.1.1996 of the post last held by the pensioner/deceased Government servant. Accordingly, so far as persons covered by CCS (Pension) Rules, 1972 are concerned, orders contained in the following Office Memoranda of this Department as amended from time to time shall be treated as modified as indicated below. ... ..."

4. According to the Petitioner, on the basis of the above Memorandum dated 17th December 1998, his pension should have been fixed at 50% of Rs. 18, 400 with effect from 1st January 1996 because the pay scale of the post of Deputy Director General, that is, Rs. 2250-2500 was revised to Rs. 18, 400-22, 400. However, the Petitioner was granted pension of 50% of Rs. 14, 300 on the basis that his pay scale on the date of his retirement was Rs. 2000-2250 (since revised to Rs. 14, 300-18, 300). The Petitioner made a representation to the Respondents for enhancement of his pension but by a letter dated 3rd November 1999 he was informed that the replacement scale for revision of pension should be taken with reference to the scale which he had been holding on the date of his retirement that is Rs. 2000-2250 and not the upgraded scale of Rs. 2250-2500 because the upgradation took place after his retirement.

5. Subsequent representations made by the Petitioner met the same fate and, therefore, the Petitioner filed O. A. No. 480 of 2001 in the Tribunal. The prayer of the Petitioner was for grant of pension with reference to the revised pay scale of Rs. 18, 400-22, 400. During the pendency of the O. A., the Respondents issued an Office Memorandum dated 11th May 2001 clarifying their earlier Memorandum dated 17th December 1998. The relevant portion of the clarificatory Memorandum dated 11th May 2001 reads as follows: --

"In the course of implementation of the above order, clarifications have been sought by Ministries/ Departments of Government of India about the actual connotation of the "post last held" by the pensioner the time of his/her superannuation. The second sentence of the O. M. dated 17.12.1998, i.e. "pension of all pensioners irrespective of their date of retirement shall not be less than 50% of the minimum pay in the revised scale of pay w.e.f. 1.1.1996 of the post last held by the pensioner", shall mean that pension of all pensioners irrespective of their date of retirement shall not be less than 50% of the minimum of the corresponding scale as on 1.1.96, of the scale of pay held by the pensioner at the time of superannuation/retirement.

Other provisions contained in the O. M. of 17th December 1998 will remain unchanged."

6. A perusal of the clarificatory Memorandum clearly indicates that it has gone well beyond the terms of the original Memorandum, with the result that the clarificatory Memorandum virtually overrules a part of the original Memorandum. The Memorandum dated 17th December 1998 fixed the pension on the basis of the scale of pay of the post last held by the pensioner, while the clarificatory Memorandum dated 11th May 2001 fixes the pension on the basis of the scale of pay last held by the pensioner or deceased Government servant, regardless of his post. Clearly, therefore, the clarificatory Memorandum inserted into the original Memorandum something that was neither intended nor postulated. The Tribunal rightly held (in paragraph 5 of the impugned order) that on a literal interpretation of the Memorandum dated 17th December 1998, the Petitioners pension should have been fixed at Rs. 9, 200 since the post of Deputy Director General was assigned the pay scale of Rs. 18, 400-22, 400.

7. However, the Tribunal fell into error in restricting its consideration only to the question whether the clarificatory Memorandum was issued by the Respondents after obtaining appropriate administrative approvals. Even if the clarificatory Memorandum was issued by following the requisite administrative procedures, the question that still remained to be answered was whether the clarificatory Memorandum could override the express terms of the original Memorandum which required pension to be fixed on the basis of the scale of pay of the post last held by the pensioner and not the scale of pay last held (irrespective of the post). Unfortunately, this question was not adverted to by the Tribunal.

8. We are of the view that the clarificatory Memorandum could not override the original Memorandum, for more than one reason. First of all, under the guise of a clarification, the Respondents could not have taken away the rights which had accrued to pensioners under the original Memorandum dated 17th December 1998. [See Director General of Posts v. B. Ravindran, ].

9. More importantly, the clarificatory Memorandum creates an artificial distinction between two categories of beneficiaries of the original Memorandum dated 17th December 1998. It may be recalled that the benefits of the Memorandum dated 17th December 1998 have been conferred not only on pensioners but also on those entitled to family pension. Insofar as pensioners are concerned, their rights are sought to be limited in as much as they have been made entitled to pension of 50% of the minimum scale of pay last drawn by them; but insofar as those entitled to family pension are concerned, their pension has been fixed at 30% of the minimum revised scale of pay applicable to the post last held by the deceased Government servant. In other words, the expression "post last held" has been clarified (and restricted) only with respect to pensioners and not with respect to those entitled to family pension. This is made further clear from the last line of the clarificatory Memorandum which states that the other provisions contained in the O. M. of 17th December 1998 will remain unchanged. If the clarification is to hold good, it must be so for the entire range of pensioners (including those entitled to family pension) and not only to a limited class. Quite clearly, the so-called clarification is not really a clarification but an amendment of the Memorandum dated 17th December 1998. The Respondents could have retrospectively amended the Memorandum dated 17th December 1998, if they were so empowered in law to do, but they could not amend the said Memorandum under the guise of issuing a clarification.

10. Under the circumstances, we are of the view that the Tribunal erred in law in denying to the Petitioner the pension that he was entitled to under the Office Memorandum dated 17th December 1998. It is, therefore, held that the Petitioner will be entitled to pension with effect from 1st January 1996 on the basis of the scale of pay applicable to the post last held by him, that is, the scale of pay of Rs. 18, 400-22, 400 applicable to the post of Deputy Director General. The Respondents are directed to calculate the arrears due to the Petitioner and to pay the same to him within a period of six weeks from today and in any case before 31st January 2004. The Petitioner will be entitled to costs of Rs. 2, 500.