Delhi High Court
S.P.Bhatnagar vs Uoi Through Secretary, Deptt. Of ... on 30 March, 2011
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.17456/2005
% Date of Decision: 30.03.2011
S.P. Bhatnagar ...... Petitioner
Through Nemo
Versus
UOI ...... Respondents
through Secretary, Deptt, of Indl. Policy &
Promotion, Ministry of Commerce &
Industry & Anr.
Through Nemo
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS.JUSTICE VEENA BIRBAL
1. Whether reporters of Local papers NO
may be allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be NO
reported in the Digest?
ANIL KUMAR, J.
*
The petitioner has challenged the order dated 11th March,
2005 in OA No. 1668/2004 titled as Satgur Pershad Bhatnager Vs.
UOI through Secretary, Deptt. of Indl. Policy & Promotion and Anr.,
challenging the dismissal of his original application.
The petitioner was a Section Officer (Class-II) during April,
1978 and on deputation, he was posted as PR & CO (Class I) in the
Ministry of Industry, Department of Industrial Development. On
deputation, he did not opt for the scale of pay of the post of PR&CO
but preferred to draw the scale of pay of his substantive post of SO.
The petitioner was also allowed to draw the deputation (duty)
allowance (DDA) in addition to his substantive pay @ Rs.100/- per
month. The petitioner retired on 31st August, 1979.
On the retirement of the petitioner on 31st August, 1979, the
element of DDA was included in his pensionery average emoluments
were included in accordance with para 2 of the regulartory OM and
FR 9 (21) (a) read with FR 9 (25) and rule 33 of CCS ( Pension) Rules
as were then prevalent. The petitioner's basic pension was also
raised from time to time as per the revision in the Pension Rules,
which was subsequently incorporated but at no stage the petitioner
raised any question with regard to the inclusion of the element of
DDA in determining his basic pay for the purpose of calculating the
revised pension.
As per the recommendation of 5th Central Pay Commission on
the subject of 'Revision of Pension' the pay of the petitioner had to be
notionally fixed as on 1st January, 1986. The respondents, while
notionally fixing his pay, excluded the element of DDA treating it to
be a special pay, which did not form part of pay as defined in FR 9
(21)(a). Aggrieved by this the petitioner made representations and
then filed the original application before the Central Administrative
Tribunal.
The Tribunal noted that the provision of Rule-33 of the Pension
Rules were amended making it clear that as per CCS(Revised) Rules,
1986, the entitlement of pension is to be calculated on the basis of
basic pay as defined under FR-9(21)(a)(i) and the pay does not
include special pay. It was further held that the element of DDA
being in the nature of special pay, therefore, has not to be treated as
sacrosanct and not special and the plea of the petitioner would not
be tenable as the Rules had been amended/revised subsequently. In
these circumstances, it was held that the recommendation had
already been made and accepted by the Govt. and therefore, there
was no curtailment of the pensionery benefits to the petitioner and
there was no disadvantage to him and thus dismissed the original
application on the ground that Rule 33 of the Pension Rules was
amended making it clear that as per CCS (Revised) Rules, 1986 the
entitlement of pension is to be calculated on the basis of basic pay as
defined under FR 9(21) (a) (i) and the pay would not include special
pay. The element of DDA was in the nature of special pay and
therefore it was excluded in accordance with rules.
No one is present on behalf of the parties. In these
circumstances, the writ petition is dismissed in default. The pending
applications, if any, are also disposed of.
ANIL KUMAR, J.
VEENA BIRBAL, J.
March 30, 2011.
rs
