Sh.H.S.Bhogal vs Union Of India & Ors
2009 Latest Caselaw 4779 Del

*                   IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             W.P. (C.) No.268/2007

%                          Date of Decision: 23.11.2009

Sh.H.S.Bhogal                                                .... Petitioner

                          Through Mr.Y.S.Chauhan, Advocate

                                   Versus

Union of India & Ors                                      .... Respondents

                          Through Mr.A.K.Bhardwaj, Advocate.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI

1.     Whether reporters of Local papers may be                YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                  NO
3.     Whether the judgment should be reported in              NO
       the Digest?


ANIL KUMAR, J. (Oral)

*

CM No.14658/2009

Issue notice to the respondent. Mr. Bhardwaj accepts notice and

states that no reply is to be filed.

For the reasons stated in the application it is allowed. The order

dated 18.11.2009 dismissing the writ petition in default of appearance

of petitioner and his counsel is set aside and the petition is restored to

its original number.

W.P. (C.) No.268/2007

The petitioner has impugned the order dated 5.10.2006 of Central

Administrative Tribunal in OA No.2487/2005, H.S. Bhogal vs. Union of

India & Ors., rejecting his original application seeking quashing of order

dated 12.9.2005 passed on the representation of the petitioner and

further seeking direction to revise his pension in accordance with law

and release the same including arrears, interest and other

consequential benefits.

Brief facts to comprehend the disputes are that the petitioner

sought voluntary retirement on 28.3.1981 and from 1st March 1981 his

pension was fixed at Rs.495/-. While fixing his pension, average

emoluments drawn by him during last completed 10 months

immediately preceding the date of his retirement were considered.

For some time before his retirement, the petitioner was on

deputation. However, he was reverted to his parent department before

his retirement, he worked in the parent department for some time and

then retired from service on taking voluntary retirement. Therefore,

while computing his pension with effect from 1.3.1981, as the

emoluments drawn by him during last completed 10 months

immediately preceding the date of retirement had to be considered, the

deputation allowance which the petitioner was receiving for some part

of the last ten months was also considered while computing his

pension.

The pension of Rs.495/- per month was computed taking into

consideration 25 years 7 days qualifying service of the petitioner and 5

years weightage was also given to him under the rules applicable at that

time.

The pension of the petitioner as per recommendation of 4th Pay

Commission was revised to Rs.1131/- with effect from 1.1.1986. On

recommendation of the 5th Pay Commission, pensions of all the

pensioners was revised as per OM dated 10.2.1998 which contemplated

notional fixation of the pay as on 1.1.1986.

While fixing notional pay of the petitioner as on 1.1.1986, the

deputation allowance which the petitioner was getting in 1980 for a part

of the last ten months of his service, when he was on deputation with

UPSC, was not taken into consideration.

The petitioner contended that as per OM dated 24.7.1998, his

pension could not be revised to his disadvantage unless such revision

was on account of detection of a clerical error. The petitioner, therefore,

sought computation of his notional pay as on 1.1.1986 by including the

deputation allowance also, which petitioner was getting for some part of

the last ten months of his service and the component of which was

considered while computing the petitioner‟s pension from 1.3.1981.

The representation of the petitioner was, however, declined by the

respondents by order dated 12.9.2005 which was challenged by him in

OA No.2487/2005 titled H.S. Bhogal vs. Union of India and Ors. The

Tribunal also dismissed the petition of the petitioner holding that the

pleas raised by the petitioner have no merit by its order dated

5.10.2006 which is impugned by the petitioner in the present petition

raising the same grounds which were raised before the Tribunal.

The petition is contested by the respondents contending, inter

alia, that notional pay as on 1.1.1986 had to be fixed on the basis of

last basic pay and not the average emoluments which the petitioner was

getting. The respondents contended that even the Ministry of PPG & P

had issued a clarification dated 19.3.1999 under Rule 33 of CCS

(Pension) Rules, 1973 clarifying that „Emoluments‟ means basic pay as

defined in Rule 9(21) (a) (i) of Fundamental Rules which a government

servant was receiving immediately before his retirement. The said rule

also defined „Pay‟ to mean the amount drawn monthly by a government

servant as the pay, other than special pay or pay granted in view of his

personal qualification. It was contended that considering the ambit of

said rule, deputation allowance would not fall within the scope of

Fundamental Rule 9 (21) (a) (i). In the circumstances, it is contended

that the petitioner is not entitled for consideration of deputation

allowance for computation of his pension on the basis of notional pay

from 1.1.1986. The respondents also contended that on the basis of

last pay which was notionally fixed from 1.1.1986, the petitioner is

entitled for a revised pension of Rs.3269/-. However, as his basic

pension was Rs.1131/- pursuant to fourth pay commission and which

the petitioner was drawing with effect from 1.1.1986, the petitioner was

given a monthly consolidated pension of Rs.3422/- with effect from

1.1.1996 which was beneficial for the petitioner in comparison to the

revised pension pursuant to OM dated 10.2.1998. Therefore, in

accordance with OM dated 24.7.1998 petitioner has been allowed to

draw monthly pension of Rs.3422/- from 1.1.1996 in compliance with

OM dated 24.7.1998 and the pension of the petitioner has not been

revised to his disadvantage.

In the circumstances, whether the deputation allowance which

petitioner was getting for some part of the last ten months period before

the date of his taking voluntary retirement (but not at the time of his

retirement) is to be considered while fixing his pension on the basis of

notional pay of the petitioner on 1.1.1976, is the point for decision in

this matter.

We have heard the learned counsel for the parties in detail. This

is not disputed that the initial pension of the petitioner was fixed at

Rs.495/- with effect from 1st March, 1981 which was revised to

Rs.1131/- w.e.f 1st January, 1986 pursuant to fourth pay commission.

Revision of pension pursuant to recommendation of 5th Pay Commission

also cannot be disputed by the petitioner. For revision of pension

pursuant to fifth pay commission, the manner was indicated in OM

No.45/86/97-P&PW (A)/Part III dated 10th February, 1998. This

memorandum contemplated notional fixation of the pay of pre 1986

retires at par with the serving employees.

The tenor of OM No.46/86/97-P&PW(A)-Part III dated 24th July,

1998 also cannot be disputed which contemplated and which has been

mainly relied on by the Learned counsel for the petitioner that the

pension is not to be revised to the disadvantage of the Government

servant unless such revision was on account of detection of clerical

error. This also has been accepted by the Counsel for the parties that in

case of the petitioner there was no clerical error in fixing his pension.

At the time of voluntary retirement of the petitioner on 28th

February, 1981, his pension was fixed taking into consideration that he

had put in service of 25 years and 7 days of qualifying service and he

had also been given 5 years service more as per the existing pension

rules. Since for fixation of pension of petitioner in 1981, the average

emoluments drawn by him during the last completed 10 months

preceding the date of retirement had to be taken into consideration,

therefore, the deputation allowance of 20% which he was getting for

some part of that ten months period, had to be considered.

However, as per O.M dated 10.2.1998, the criteria for fixation of

pension on the basis of notional pay as on 1.1.1976 was the last basis

pay drawn by the employee and not the average emoluments of last 10

months immediately preceding the date of retirement.

A clarification dated 19th March, 1999 under Rule 33 of CCS

(Pension) Rules, 1973 was issued by the Ministry of PPG & P clarifying

that the expression `emoluments' means basis pay as defined in Rule 9

(21) (a) (i) of Fundamental Rules which defines pay as the amount

which the Government servant receives as pay other than special pay or

pay granted in view of his personal qualification. The learned counsel

for the petitioner is unable to explain as to how the `deputation

allowance' will fall not within the ambit of "Special Pay" in terms of the

clarification dated 19th March, 1999.

This is not disputed by the Learned Counsel for the petitioner

that notional pay has been fixed w.e.f 1.1.1986 in accordance with

rules. If that be so than the deputation allowance from Cabinet

Secretariat which the petitioner was getting from 1.10.1975 up to

30.9.1980 could not be included in the basis pay of the petitioner which

was notionally fixed from 1.1.1986 pursuant to the recommendation of

the 5th Pay Commission. Thus the pay of the petitioner was notionally

fixed at Rs.2375/- per month as on 1.1.1986 and after adding DA, 1st

interim relief, 2nd interim relief and Fitment weightage, the pension of

the petitioner was fixed at Rs.3269/- w.e.f 1.1.1996.

However, since the petitioner was drawing basic pension of

Rs.1131/- from 1.1.1986, he has been paid consolidated pension of

Rs.3422/- w.e.f. 1.1.1996. Therefore, though the petitioner pension was

fixed at Rs.3269/- w.e.f 1.1.1996 under OM dated 10th February, 1998,

he continued to get pension of Rs.3422/- in terms of OM dated 24th

July, 1998 which contemplates that the pension shall not be revised to

the disadvantage of the Government servant. Therefore, the plea of the

petitioner to grant him pension after taking into consideration the

deputation allowance cannot be accepted, nor the petitioner can

contend that his pension has been revised to his detriment. The finding

of the Tribunal therefore, cannot be faulted.

The petitioner has not pressed the plea that he is getting less

pension than his junior especially Shri Darshan Singh as the said

junior had put in 33 years of service compared to the petitioner who

had sought voluntary retirement after doing service for 25 years and 7

days, which was treated as 30 years of service.

In the circumstances, the order dated 12th September,2005 of the

respondents declining the representation of the petitioner claiming

fixation of pension after taking into consideration the deputation

allowance does not suffer from any illegality or such error which would

require rectification. Therefore, the order dated 5th October, 2006 of the

Central Administrative Tribunal dismissing the petition against the

order dated 12th September, 2005 also does not suffer from any error or

illegality which will require interference by this Court in exercise of its

jurisdiction under Article 226 of the Constitution of India. The writ

petition in the facts and circumstances is without any merit and it is,

therefore, dismissed. Parties are however, left to bear their own costs.

ANIL KUMAR, J.

November 23rd, 2009                                    VIPIN SANGHI, J.
„jk/dp‟