Delhi High Court
K S Dhingra vs Union Of India And Ors. on 9 April, 2021
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 9th April, 2021
+ W.P.(C) No.4473/2021
K.S. DHINGRA ..... Petitioner
Through: Mr. D.S. Mahendru, Advocate.
Versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Ms. Nidhi Banga, Sr. Panel Counsel.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MR. JUSTICE AMIT BANSAL
JUDGMENT
AMIT BANSAL, J. (Oral)
C.M. No.13664/2021 (for exemption)
1. Allowed, subject to all just exceptions and as per extant Rules.
2. The application stands disposed of.
W.P.(C) No.4473/2021 & C.M. No.13664/2021 (for stay)
3. The present petition impugns the order dated 29th January, 2021
passed by the Central Administrative Tribunal, Principal Bench, New Delhi
(CAT) in O.A. No.817/2020. Vide the said impugned order, CAT was
pleased to dismiss the O.A. filed by the petitioner.
4. The petitioner joined the service of respondent No. 1, Ministry of
Defence in the year 1973 as Assistant in the Armed Force Head Quarter
(AFHQ). In the year 1999, the petitioner applied for deputation to Central
Electricity Regulatory Commission (CERC) to the post of Joint Chief
(Legal). He retired from AFHQ on 6th June, 2004 and subsequently, was
absorbed with CERC w.e.f. 7th June, 2004.
5. As regards pension and other benefits, the petitioner was given two
options by the Respondents, and the petitioner, vide letter dated 18th
January, 2005, opted to receive pro-rata retirement benefits from respondent
No.4 for the service rendered up to 6th June, 2004. The pension and other
benefits of the petitioner were fixed by the respondents vide order dated 9th
September, 2005. Subsequently in 2018, it was discovered by the
respondents that the pension and other benefits were wrongly fixed and
accordingly, they were ordered to be revised downwards in the year 2018.
However, no show cause notice was issued to the petitioner in this regard.
6. The petitioner filed an O.A. before CAT, being O.A. No.4705/2018,
against the said downward revision of his pension. The said O.A. was
disposed of by CAT vide order dated 27th September, 2019 with a direction
to the respondents to issue show cause notice to the petitioner within 30
days in terms of Rule 70 of the CCS (Pension) Rules, 1972 (hereinafter
Pension Rules).
7. Pursuant to the said order passed by CAT, the petitioner was issued a
show cause notice dated 17th October, 2019 to which he replied on 16th
November, 2019. Taking into consideration the reply filed by the petitioner,
a detailed order dated 5th March, 2020 was passed by the Respondents,
revising his pension and fixing the pension at Rs.10,321/- from the date of
his retirement i.e. 6th June, 2004, as determined by the date of his absorption
in CERC. It was also provided therein that the subsequent revision of
pension would be as per Government decision on the recommendations of
the 6th and 7th Central Pay Commissions as per the relevant rules. It was
further directed that excess amount paid to the petitioner be recovered from
him from the date of retirement up to date of order.
8. The said order dated 5th March, 2020 was impugned by the petitioner
in the O.A. from which the present petition arises.
9. CAT, after hearing both sides, proceeded to observe/hold in the
impugned order that: (i) Note-10 to Rule 33 of the Pension Rules is not
applicable in the present case and therefore no benefit could be given to the
petitioner on account of the said Note-10; (ii) the petitioner had given option
to receive pro-rata retirement benefits for the service rendered under Central
Government and having done that, the petitioner does not have any right to
claim a higher amount of pension; (iii) the earlier fixation of pension on 9th
September, 2005 was clearly an error in terms of Rule 70 and the question
whether the error is clerical or otherwise has to be decided by the concerned
Ministry or the Department and the same cannot be agitated before CAT;
(iv) there is no provision of law which prescribes limitation in matters
relating to revision of pension; (v) the contention of the petitioner with
regard to concurrence required under the Rules and administrative
competence of the authorities do not have any force and the statements in
that regard were nebulous in nature; (vi) Note-7 to Rule 33 will be attracted
in the present case, as the service of the petitioner would be considered
"Foreign Service" in terms of Rule 3 (g), as at the time of the petitioner‟s
absorption in CERC w.e.f. 7th June, 2004, the petitioner was not receiving
his salary from the Consolidated Fund of India. In view of the above
findings, the O.A. filed by the petitioner was dismissed.
10. Being aggrieved with the said dismissal, the present petition has been
filed.
11. We have heard the counsels for the parties.
12. The counsel for the petitioner has assailed the findings of CAT on the
following grounds, as discussed below.
13. There was no clerical error in the earlier fixation of pension by the
respondents. Therefore, in terms of Rule 70, pension, once fixed, cannot be
revised to the disadvantage of the Government servant. The counsel for the
petitioner has laid emphasis on the words "clerical error" and stated that in
the present case, there was no clerical error. We find no merit in the said
submission of the counsel for the petitioner. In the context of the words
"clerical error" have been used in Rule 70, the same has to be given a
broader meaning, whereby, if it is subsequently realized by the respondents
that the pension has wrongly been fixed on account of mis-interpretation of
Rules, the same would amount to be a clerical error and the respondents
would have the right to revise the same at a later point of time. CAT has also
rightly observed that in terms of said Rule 1 (a) of Rule 70, the question
whether revision has become necessary on account of clerical error or not
has to be decided by the Administrative Ministry or Department and the
same has duly been done in the present case.
14. It was next contended on behalf of the petitioner that the respondents
cannot revise the pension to the detriment of the petitioner after a delay of
13 years. Once again, the said contention is without any merits, as it is a
settled position of law that pension is a recurring cause of action and
therefore, the respondents are free to revise the pension at any point of time,
if in their view, the same has been wrongly fixed. We agree with the
reasoning of CAT that there is no law that prescribes limitation in such
matters.
15. The counsel for the petitioner has submitted that the respondents have
failed to obtain concurrence from Department of Pension and Pensioners‟
Welfare (DOP&PW), which they were bound to obtain in terms of Rule 70
(1). We do not agree with the said submission. It is duly noted in the order
dated 5th March, 2020, which was impugned before CAT, that the
petitioner‟s case, after taking approval from Defence Secretary for
downward revision of pension, concurrence of DOP&PW has been duly
received.
16. The next contention on behalf of the petitioner was that the case of the
petitioner had to be dealt with under Note-10 to Rule 13 and not Note-7
thereof. The relevant provisions of Rule 3(g), Rule 70 and Rule 33, along
with Note-7 and Note-10 are set out hereinbelow:
"Rule 70:
1) Subject to the revisions of Rules 8 and 9, pension once
authorized after final assessment shall not be revised to the
disadvantage of the Government servant, unless such revision
becomes necessary on account of detection of a clerical error
subsequently;
Provided that no revision of pension to the disadvantage of
the pensioner shall be ordered by the Head of Office without the
concurrence of the Department of Personnel and Administrative
Reform if the clerical error is detected after a period of two
years from the date of authorization of pension.
[(1-A) the question whether the revision has becomes
necessary on account of a clerical error or not shall be
decided by the administrative Ministry of Department.]
2) For the purpose of sub-rule 1, the retired Government
servant concerned shall be served with a notice by the Head of
Office requiring him to refund the excess payment of pension
within a period of two months from the date of receipt of notice
by him.
3) In case the Government servant fails to comply with the
notice, the Head of Office shall, by order in writing, direct that
such excess payment, shall be adjusted in instalments by short
payments of pension in future, in one or more instalments, as
the Head of Office may direct."
Rule 33
"The expression `emoluments' means basic pay as defined in
Rule 9 (21) (a) (i) of the Fundamental Rules which a
Government servant was receiving immediately before his
retirement or on the date of his death; and will also include
non-practising allowance granted to medical officer in lieu of
private practice.]
Explanation- Stagnation increment shall be treated as
emoluments for calculation of retirement benefits."
Note-7 to Rule 33:
"Pay drawn by a Government servant while on Foreign Service
shall not be treated as emoluments, but the pay which he would
have drawn under the Government had he not been on foreign
service shall alone be treated as emoluments."
Rule 3 (g):
"Foreign Service means service in which a Government servant
receives his pay with the sanction of the Government from any
source other than the Consolidated Fund of a State or the
Consolidated Fund of a Union Territory."
Note-10 to Rule 33:
"When a Government servant has been transferred to an
autonomous body consequent on the conversion of a
Department of the Government so transferred opts to retain the
pensionary benefits under the rules of the Governments, the
emoluments drawn under the autonomous body shall be treated
as emoluments for the purpose of this rule."
17. We do not agree with the contention of the counsel for the petitioner
that his case was covered under Note-10. Note-10 would be applicable when
a Government servant has been transferred to an autonomous body,
consequent on the conversion of the Department of Government. In the
present case, CERC was never a Department of the Government which got
converted into an autonomous body. As rightly observed by CAT, no
change took place in the nature of body or the organization, where the
petitioner was working prior to his absorption with CERC i.e. respondent
No.4. Therefore, no benefit could be given to the petitioner on account of
Note-10.
18. As per the respondents, the case of the petitioner would fall under
Note-7 to Rule 33 and the said contention of the respondents has found
favour with CAT. CAT has relied upon the definition of „foreign service‟ in
Rule 3 (g) to hold that the service of the petitioner would fall into the
category of „foreign service‟ as his pay is not received from the
Consolidated Fund of India. Therefore, in terms of Note-7, the petitioner
would be treated as on foreign service and the benefit of the emoluments
under the said service would not be available to him. In this regard, counsel
for the petitioner has drawn our attention to pages 378 to 380, which is a
response dated 6th November, 2019 of the respondents to an RTI application
filed on behalf of the petitioner. In the said response, the respondents have
given a pointwise reply to the RTI application and the same is set out
below:-
"Point-wise reply of RTI Registration No. CGACT/R/2019/50480 dated 22/10/2019
RTI Queries Reply
A. What is the source of funds allocated to The source of funds allocated to the
the Central Electricity Regulatory Central Electricity Regulatory
Commission in the form of grants made Commission in the form of grants made
by the Central Government under Section by the Central Government under
98 of the Electricity Act, 2003 after due Section 98 of the Electricity Act, 2003
appropriation made the Parliament, that after due appropriate made by the
is, whether the source is the Consolidated Parliament is from the Consolidated
Fund of India and/or any other source. Fund of India as well as „Central
Electricity Regulatory Commission
Fund‟ i.e. Public Account.
B. Year-wise details of funds allocated to (Rs. in crore)
the Central Electricity Regulatory Financial Funds allocated to
Commission for the years 2002-03, 2003- year CERC from
04, 2004-05 and 2005-06 separately from consolidated Fund of
the consolidated Fund of India and other India
sources, if any. 2002-03 4.75
2003-04 5.73
2004-05 6.71
2005-06 5.85
C. Copies of letters allocation of funds made The copies of relevant pages of
to the Central Electricity Regulatory Detailed Demand for Grants depicting
Commission for the years 2002-03, 2003- fund allocation for the financial year
04, 2004-05 and 2005-06 2002-03, 2003-04, 2004-05, 2005-06
and 2006-07 are enclosed at Annexure
I, II, III and IV.
19. A perusal of the aforesaid reply makes it clear that the grants given to
CERC by the Central Government were from the Consolidated Fund of
India. Therefore, the service of the petitioner with CERC would not fall in
the category of „foreign service‟, in terms of Rule 3(g) and the case of the
petitioner would not be covered under Note-7. Therefore, to this limited
extent, we do not agree with the findings of CAT and accordingly, the same
is set aside.
20. In the light of the above findings, the issue that arises would be as to
how the pension payable to the petitioner would be fixed in terms of Rule
33, if both Note-7 as well as Note-10 are not applicable. CAT has not gone
into this aspect, since as per CAT, Note-7 was applicable in the case of the
petitioner. Therefore, we deem it appropriate to issue notice to the parties on
this limited aspect.
21. Notice is accepted by Ms. Nidhi Banga on behalf of the respondents.
22. Both sides to file affidavits on this limited aspect within a period of
two weeks from today.
23. List on 17th August, 2021.
AMIT BANSAL, J.
RAJIV SAHAI ENDLAW, J.
APRIL 9, 2021
A
