Nilakantha Panda vs Secretary To Govt. Fisheries
2023 Latest Caselaw 11540 Ori

                    ORISSA HIGH COURT: CUTTACK

AFR                       W.P(C) NO. 2022 OF 2002

         In the matter of an application under Articles 226 and
         227 of the Constitution of India.
                               ---------------

Nilakantha Panda ..... Petitioner

-Versus-

Secretary to Govt. Fisheries and Animal Resources Development Department, Bhubaneswar & Ors. ..... Opp. Parties

For petitioner : Mr. C.A. Rao, Sr. Advocate along with M/s. A.K. Routh & S.K. Behera, Advocates

For opp. parties : Mr. S.S. Kanungo, Addl. Government Advocate

P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE MURAHARI SRI RAMAN

Date of Hearing:18.09.2023 :: Date of Judgment: 22.09.2023

DR. B.R. SARANGI, J. The petitioner, by means of this writ

petition, seeks to quash Annexure-11, the order/letter

dated 05.04.2000, by which opposite party no.2-

Director, Animal Husbandary & Veterinary Services,

Odisha has intimated the petitioner that his proposal

for enhancement of contractual pay has been turned // 2 //

down by the Finance Department, as well as Annexure-

12, the order dated 13.05.2002 passed in O.A. No.1024

of 2000, by which the Odisha Administrative Tribunal,

Bhubaneswar has disallowed the claim of the petitioner.

2. The factual matrix of the case, in brief, is

that the petitioner, while continuing in a Class-I post,

i.e., Under Secretary to the Government in School and

Mass Education Department, retired from service on

31.07.1993 on attaining the age of superannuation.

After five years of retirement, he got a contractual

appointment to the post of Administrative Officer on a

consolidated pay of Rs.5,000/- per month, vide

appointment letter dated 31.12.1997, in a Danish

Government sponsored project, called Integrated Live

Stock Development Project in Koraput district with the

Headquarters at Jeypore for a period of two years or

till completion of the project period, whichever is

earlier.

2.1. Prior to his appointment, opposite party no.5

had suggested to opposite party no.2 with regard to

the pay of the petitioner at a consolidated amount of // 3 //

Rs.7,500/- per month in its letter dated 03.07.1997,

which was recommended vide order dated 11.12.1997

by opposite party no.2 basing on the last pre-

retirement pay (last basic pay) of Rs.3,500/- as on

31.07.1993. As the appointment was on contractual

basis, an agreement was executed on 18.01.1998

between the petitioner and opposite party no.2,

wherein the salary of the petitioner was fixed at

Rs.5,000/- consolidated per month. On execution of

agreement, the petitioner joined in the post of

Administrative Officer in DAILDP. From the date of

receiving the payment of Rs.5,000/-, he made

objection to it and filed a representation requesting to

approve the recommendation of opposite parties no.2

and 5 with regard to fixation of his pay at Rs.7,500/-

consolidated. Since he received the appointment order

on 09.01.1998 and his date of joining to the said post

was fixed to 10.01.1998, on the next day he had no

time to go to Cuttack, which is about 550 km away, to

approach opposite party no.2 for fixation of his

consolidated pay.

// 4 //

2.2. Since the Revised Scale of Pay, 1998 of the

State Government employees became effective from

01.01.1996, as per Finance Department Resolution

dated 07.09.1998, his representation should stand

modified for determination of his consolidated pay in

accordance with the provisions of the OCS (Pension)

Rules, 1992. In response to same, opposite party no.1

issued a letter to opposite party no.2 on 08.12.1998 to

furnish clear information about the basis of fixation of

his consolidated pay and clarify that adequate stress

may be given while giving information regarding

fixation of his pay at Rs.5000/- and also made a query

regarding the basis of the proposed monthly

consolidated pay of Rs.7,500/- and under what basis

Rs.5000/- was allowed as consolidated. In response to

same, opposite party no.5 made a clarification to

opposite parties no.2 and 1 in its letter dated

04.01.1999.

2.3. The petitioner made his claim under Rules-

88, 89 and 94 of the OCS (Pension) Rules, 1992

contending that on the date of determination, i.e.,

31.07.1993, he had drawn the last basic pay of // 5 //

Rs.3,500/-, but when the new Revised Pay Rules,

1998 came into force w.e.f. 01.01.1996, the basic pay

against the post, in which the petitioner was

continuing before retirement, was fixed at Rs.10,200/-

and hence Rs.7,500/- consolidated pay per month is

correct and genuine and his claim is in conformity

with the office order dated 17.03.1999. Therefore,

opposite party no.2, vide letter dated 09.04.1998,

recommended the case for payment of fixed

consolidated emoluments at Rs.7,500/- per month in

favour of the petitioner.

2.4. Prior to issuance of Annexure-7 dated

09.04.1998, the petitioner submitted a letter narrating

in detail about the deduction of T.I. during re-

employment period, i.e., from 10.01.1998 to

10.01.2000. In the said letter/representation, the

petitioner also submitted that after deduction of T.I.,

which was to the extent of Rs.3,585 at Treasury level,

he was only getting Rs.1167/- per month. So, he

requested that the loss of T.I. on pension is to be

compensated by augmenting the consolidated pay.

Basing upon the said representation, opposite party // 6 //

no.2 passed order under Annexure-7 dated

09.04.1998. Though he was re-employed, after

retirement, on 10.01.1998, and got relieved on

10.01.2000, in these two years, his T.I. on pension

were withheld on the plea of re-employment by

opposite party no.3 relying on the office memorandum

dated 23.03.1977. From the date of re-employment in

DAILDP till completion of his tenure in the

Department, the petitioner was denied of the T.I. on

pension and opposite party no.1 did not agree to pay

the petitioner Rs.7,500/- as consolidated pay.

Consequentially, he sustained heavy financial loss

from both sides i.e. withholding of T.I. and not raising

the consolidated pay from Rs.5,000/- to Rs.7,500/-.

When he represented to the Treasury Officer, Special

Treasury, Jeypore for payment of held over T.I., he

wrote to opposite party no.4 requesting him to clarify

the matter, which was communicated to the petitioner,

vide memo no. 354/99 dated 06.01.1999.

2.5. When the representation of the petitioner for

enhancement of his contractual pay was submitted to

opposite party no.3, the same was rejected and // 7 //

communicated to the petitioner through opposite party

no.2. Therefore, the petitioner approached the Odisha

Administrative Tribunal, Bhubaneswar, by filing O.A.

No.1024 of 2000, which was disallowed, vide order

dated 13.05.2002. Hence, this writ petition.

3. Mr. C.A. Rao, learned Senior Counsel along

with Mr. S.K. Behera, learned counsel appearing for

the petitioner vehemently contended that since the

petitioner was given re-employment after five years of

his retirement, i.e., on 31.07.1993 and, as such, the

said employment was neither under the State

Government nor the Central Government, as per

Finance Department office memorandum dated

09.11.1994, clause-4(b) of the Regulation has no

application to the case of the petitioner. It is further

contended that the OCS (Pension) Rules, 1992

prescribes that prior to the Revised Scale of Pay Rules,

those who have been re-employed shall be entitled to

the benefit of Revised Scale of Pay Rules during the

period of re-employment. Therefore, when the

petitioner was re-appointed, his consolidated pay

ought to have been fixed at Rs.9,000/-. But the // 8 //

Tribunal, without following Rule-89 of the OCS

(Pension) Rules, 1992, disallowed the claim of the

petitioner, which amounts to non-application of mind.

It is further contended that since the benefit

admissible to the petitioner is regulated under Rules-

88 & 89 of the OCS (Pension) Rules, 1992, the Finance

Department office memorandum dated 09.11.1994

cannot supersede the same and, as such, relying upon

administrative instruction, the claim of the petitioner

cannot be disallowed. It is further contended that

while disallowing the benefit admissible to the

petitioner, as communicated vide memo dated

05.04.2000, no reason has been assigned, therefore,

the same cannot be sustained in the eye of law. More

so, if the similar benefit has been granted to other five

categories of employees, who were re-employed after

their retirement, denying the said benefit to the

petitioner amounts to discrimination and hit by Article

14 of the Constitution of India. To substantiate his

contentions, he has relied upon M/s. Shree Ganesh

Construction v. State of Orissa, 2016(II) OLR 237;

(Smt.) Bharati Das v. State of Orissa, 2020(II) OLR // 9 //

537 and U.P. Raghavendra Acharya v. State of

Karnataka, AIR 2006 SC 2145.

4. Mr. S.S. Kanungo, learned Addl. Government

Advocate appearing for the State-opposite parties,

while justifying the orders impugned passed by the

authority as well as the Tribunal, contended that the

petitioner retired from service on 31.07.1993 and re-

employed on the consolidated pay of Rs.5,000/-, vide

office order no.38093 dated 31.12.1997, pursuant to

which he joined on 10.01.1998. The petitioner was

drawing pension at Special Treasury, Jeypore on the

strength of P.P.O No.82127 (supn.). In terms of S.R.

303(1) of the O.T.C. Volume-1, he was required to

furnish the details of his employment/re-employment

duly verified by the Head of Office, where he was

employed/re-employed, once in a year preferably in

the pension bill. It is further contended that as per

Finance Department office memorandum dated

23.03.1977, T.I. in pension shall be suspended when

State Government pensioner is employed/re-employed

or absorbed permanently in a State Government or

Central Government/ Company/ Corporation // 10 //

Undertaking/Autonomous Body or Nationalized Band

including R.B.I. or Local Fund. The T.I. in pension

shall also be suspended if the petitioner is in receipt of

remuneration in any form of consolidated pay, fixed

allowances, special pay or honorarium or in any other

form. As per clause-4(b) of the Finance Department

office memorandum dated 09.11.1994, T.I. on pension

shall not be suspended if the petitioner is in receipt of

consolidated amount in the form of pay, remuneration

honorarium or fixed allowance during the period of re-

employment provided the consolidated amount shall

not include any element of Dearness Allowance and

shall be kept at par with the pre-retirement pay of the

pension. The pre-retirement pay of the petitioner is

Rs.3500/- and on re-employment the consolidated pay

of the petitioner is Rs.5,000/-. Thus, as per the

provision contained in the above Government order

the action of non-payment of T.I. to the petitioner by

the Treasury Officer, Special Treasury, Jeypore is

correct. Therefore, the question of release of T.I. to the

petitioner does not arise after his re-employment. As

such, the Tribunal is well justified in rejecting the // 11 //

claim of the petitioner which does not warrant

interference of this Court at this stage.

5. This Court heard Mr. C.A. Rao, learned

Senior Counsel along with Mr. S.K. Behera, learned

counsel appearing for the petitioner; and Mr. S.S.

Kanungo, learned Addl. Government Advocate

appearing for the opposite parties in hybrid mode.

Pleadings having been exchanged between the parties,

with the consent of learned counsel for the parties, the

writ petition is being disposed of finally at the stage of

admission.

6. Based on the pleadings available on record,

as well as the rival contentions raised by the learned

counsel for the parties, following questions are

formulated to be answered in this case:-

(1) Whether the authority is well justified in turning down the request made by the petitioner for enhancement of contractual pay from Rs.5,000/- to Rs.7,500/- per month?

(2) Whether the petitioner is eligible to get his pensionary benefit as well as T.I. as admissible to him in accordance with law or not?

// 12 //

7. The Tribunal, vide order dated 13.05.2002

passed in O.A. No.1024 of 2000, has denied the benefit

relying upon the office memorandum dated 09.11.1994

issued by the Finance Department, which reads as

follows:-

"4(a) T.I. of a pensioner (including a family pension holder) shall be suspended when he/she is employed/re-employed in the services/posts under the State/Central Government/Company or Local Fund Institutions or Industrial or Commercial undertakings or Corporations/Boards of State as well as Central Government or under any other Aided Institutions or Nationalized Banks including Reserve Bank of India and State Bank of India or Universities or under any other Society including Cooperative Societies/Cooperative Banks.

(b) T.I. on pension shall not be suspended if the pensioner is in receipt or consolidated amount in the form of pay, remuneration, honourarium or fixed allowances during the period of re-employment, provided the consolidated amount shall not include any element of dearness allowance and shall be kept at par with the pre-retirement pay of the pensioner."

8. It appears from clause-4(a) & (b) of the office

memorandum dated 09.11.1994 issued by the Finance

Department, T.I. of a pensioner (including a family

pension holder) shall be suspended when he/she is

employed/re-employed in the services/posts under the

State/Central Government/Company or Local Fund // 13 //

Institutions or Industrial or Commercial Undertakings

or Corporations/Boards of State as well as Central

Government or under any other Aided Institutions or

Nationalized Banks including Reserve Bank of India and

State Bank of India or Universities or under any other

Society including Cooperative Societies/Cooperative

Banks and T.I. on pension shall not be suspended if the

pensioner is in receipt or consolidated amount in the

form of pay, remuneration, honourarium or fixed

allowances during the period of re-employment,

provided the consolidated amount shall not include any

element of dearness allowance and shall be kept at par

with the pre-retirement pay of the pensioner.

9. So far as applicability of clause-4(a) of the

aforesaid office memorandum is concerned, the same

has no relevance to the case of the petitioner, as

admittedly the petitioner was re-employed under the

Denida project with consolidated remuneration. But the

requirement under clause-4(b) of the aforesaid

memorandum has to satisfy two conditions, namely, (1)

the consolidated amount should not include any

element of D.A. and (2) it should be kept at par with the // 14 //

pre-retirement pay of the petitioner. Admittedly, the

petitioner satisfied the first condition, as his

consolidated remuneration did not include any element

of D.A. and so far as condition no.2 is concerned, the

consolidated remuneration of the petitioner was

Rs.5,000/-, which is more than Rs.3,500/-, which was

the last pay he was getting on the date of retirement.

Applying the said analogy, the Tribunal has rejected the

claim of the petitioner. The order of the Tribunal is an

outcome of non-application of mind, as because by the

time the petitioner got employment on consolidated

amount of Rs.5,000/- per month, vide office order dated

31.12.1997, pursuant to which he joined before the

Project Director, ILDP, Jeypore on 10.01.1998, Revised

Scale of Pay Rules, 1998 had come into force w.e.f.

01.01.1996. Thereby, the basic salary of the petitioner

was to be fixed at Rs.10,200/-, for which the claim

made for fixing consolidated salary at Rs.7,500/- per

month was recommended, when, as a matter of fact, his

consolidated amount could have been at Rs.9,000/- per

month. Under such circumstance, it can be safely

stated that the Tribunal, without applying its mind, has // 15 //

disallowed the claim of T.I., which is contrary to clause-

4(b) of the Finance Department office memorandum

dated 09.11.1994.

10. It is of relevance to note here that the

Governor of Odisha, in exercise of power under Article

309 of the Constitution of India, made a rule to regulate

the grant of pension, gratuity and other retirement

benefits to the persons on retirement from service in

connection with the affairs of the State of Odisha, called

"The Odisha Civil Services (Pension) Rules, 1992".

Chapter-XII thereof deals with re-employment of

pensioners. Rule-87 deals with definition of 'pension'.

For just and proper adjudication of the case, the

relevant rules of the Odisha Civil Services (Pension)

Rules, 1992 are quoted below:-

"87. Definition-In this chapter, unless, the context otherwise requires:

(a) "Pension" means the gross monthly pension or Government's contribution to Contributory Provident Fund and/or other retirement benefits, if any, payable under the Odisha Civil Services (Pension) Rules, 1992 or the relevant rules of the Government or body under which the re-

employed pensioner was serving prior to his retirement, where pension has been commuted partly or fully, pension means // 16 //

the gross pension payable prior to commutation.

(b) "Pre-retirement Pay" means:

(i) the pay which was taken into account for calculation of pension;

(ii) in case of an officer who retires while on leave or on deputation, the pay that he would have drawn, in this parent cadre but for going on leave or on deputation, shall be taken as pre-retirement pay provided the competent authority certifies that he would have continued to officiate the post but for his proceeding on leave or on deputation.

88. Except in case of the Government servants in receipt of non-practicing allowance either before or after re- employment, the persons re-employed prior to the date of introduction of the revised scales of pay shall be entitled to the benefit of the revised scales of pay during the period of re-employment.

89. Fixation of pay of re-employed pensioners- (a) Re-employed pensioners shall be allowed to draw pay only in the prescribed scales of pay attached to the posts in which they are re-employed. No protection of the scales of pay of the posts held by them prior to retirement shall be given.

(b) (i) In all cases where the pension is fully ignored, the initial pay on re- employment shall be fixed at the minimum of the scale of pay of the re-employed post.

(ii) In cases where the entire pension and pensionary benefits are not ignored for pay fixation, the initial pay on re-

employment shall be fixed at the same stage as the last pay drawn before retirement. If there is no such stage in the re-employed post, the pay shall be fixed at the stage below that pay. If the maximum of the pay scale in which a pensioner is re- employed is less than the last pay drawn by him before retirement, his initial pay // 17 //

shall be fixed at the maximum of the scale of the reemployed post. Similarly, if the minimum of the scale of pay in which a pensioner is re-employed is more than last pay drawn by him before retirement his initial pay shall be fixed at the minimum of the scale of pay of the re-employed post. In all these cases, the non-ignorable part of the pension shall be reduced from the pay so fixed.

(c)(i) The re-employed pensioner, in addition to pay as fixed under sub-rule (b) above, shall be permitted to draw separately any pension sanctioned to him and to retain any other form of retirement benefits.

(ii) Temporary Increase or Dearness Relief of the re-employed pensioner (including a family pension holder) shall be suspended when he/she is employed/re-employed in the services/posts under the State/Central Government/Company or Local Fund Institutions or Industrial or Commercial Undertakings or Corporations/Boards of State as well as Central Government or under any other Aided Institutions or Nationalised Banks including Reserve Bank of India and State Bank of India or Universities or under any other Society including Co-operative Societies/Co- operative Banks.

Provided that Temporary Increase or Dearness Relief on pension shall not be suspended if the pensioner is in receipt of consolidated amount in the form of pay, remuneration, honorarium or fixed allowance during the period of re-

employment, provided the consolidated amount shall not include any element of dearness allowance and shall be kept at par with the pre-retirement pay of the pensioner w.e.f dtd. 09.11.1994.

(d) In the case of persons retiring before attaining the age of 55 years and who are reemployed, pension/other forms of retirement benefits shall be ignored for initial pay fixation to the extent of ₹4000/- w.e.f 01.01.2006 or as shall be notified by // 18 //

the Government from time to time provided that-

(i) in the case of officers drawing pension not exceeding Rs.4000/- p.m. the actual pension.

(ii) In other cases-the first ₹4000/- of the pension. The pension for the purpose of this rule means gross pension (pension without deduction of commuted value).

Note-The fixation of pay on re-

employment shall be made by the Administrative Department in consultation with the Finance Department.

94. Allowances-The drawal of various allowances and other benefits based on pay shall be regulated with reference to the pay that is fixed on re-employment. Pay for these allowances and benefits will be the pay fixed before deducting the non-

ignorable part of the pension/other forms of retirement benefits."

11. From the above definition enshrined in

clauses (a) and (b) of Rule-87 with regard to "pension"

and "pre-retirement pay", the position is very clear.

Under Rule-88, it is made clear that except in case of

the Government servants in receipt of non-practicing

allowance either before or after re-employment, the

persons re-employed prior to the date of introduction of

the revised scales of pay shall be entitled to the benefit

of the revised scales of pay during the period of re-

employment. This makes it clear that since the

petitioner was re-employed on consolidated pay of // 19 //

Rs.5000/-, vide office order dated 31.12.1997, pursuant

to which he joined on 10.01.1998, i.e., after

commencement of the OCS (Pension) Rules, 1992 giving

effect to 01.01.1996, he is entitled to get the benefit of

revised scale of pay during the period of re-employment.

Fixation of pay of re-employed pensioners has been

provided under Rule-89 and as per sub-rule (b) (i)

thereof, in all cases where the pension is fully ignored,

the initial pay on re-employment shall be fixed at the

minimum of the scale of pay of the re-employed post.

Therefore, after revision of pay scale, if the petitioner is

entitled to get fixation of scale of pay at Rs.10,200/-, he

is entitled to get consolidated remuneration, but the

same has not been paid to the petitioner. Thereby, he

was loser, so far as revised scale of pay is concerned, as

the consolidated salary was granted to him at Rs.

5000/- per month, even though request for

consolidated pay of Rs.7,500/- was made by the

petitioner. Therefore, in the name of re-employment, the

petitioner cannot be denied the benefit admissible to

him in accordance with the OCS (Pension) Rules, 1992.

Since the said OCS (Pension) Rules, 1992, which have // 20 //

been framed in exercise of the power under Article 309

of the Constitution of India, is statutory and applicable

to the petitioner.

12. Much reliance has been placed by the

Tribunal on the office memorandum no.38284 dated

09.11.1994, by which the petitioner has been denied

the benefit. It is profitable to note that executive

instruction or office memorandum issued by the

Department cannot supersede the statutory provisions

governing the field.

13. In State of Madhya Pradesh v. Municipal

Corporation, Indore, AIR 1987 SC 1983 : 1987 Supp.

SCC 748, the apex Court held that the Government

cannot restrict the operation of statutory rules by

issuing executive instruction. The executive instruction

may supplement but not supplant the statutory rules.

In Palghat Zilla Thandan Sam,udhaya

Samrakshna Samiti v. State of Kerala, (1994) 1 SCC

359, the apex Court held that the Government order

cannot have the effect of modifying any Statute. In

State of Madhya Pradesh v. G.S. Dal Flour Mill, AIR // 21 //

1991 SC 772, the apex Court further held that an

executive instruction cannot go against the statutory

provision so as to whittle down the effect of such

provision.

14. In Subhash Ramkumar Bind v. State of

Maharashtra, (2003) 1 SCC 506 : AIR 2003 SC 269,

the apex Court held that the administrative instructions

are not intended to supplement or supersede the Act or

statutory Rules and cannot take away the right vested

in a person governed by the Act. The notification of

which statute requires to be issued has a statutory

force and not otherwise.

15. In K.H. Siraj v. High Court of Kerala,

(2006) 6 SCC 395, the apex Court held that executive

instructions can always supplement the rules which

may not deal with every aspect of a matter.

16. In State of Rajasthan v. Jagdish Narain,

(2009) 12 SCC 49, the apex Court held that in case of

conflict between statutory rule and administrative

instruction, the former shall prevail. No administrative

instruction can override a statutory rule.

// 22 //

17. In Vinod Kumar v. State of J&K, (2012) 11

SCC 247, the apex Court held that there is primacy of

statutory rules over Government Circulars.

18. In Joint Action Committee of Airlines

Pilots' Association v. Director of General of Civil

Aviation, (2011) 5 SCC 435, the apex Court held that

executive instructions which are issued for guidance

and to implement the scheme of the Act and do not

have the force of law, can be issued by the competent

authority and altered, replaced and substituted at any

time. The law merely prohibits the issuance of a

direction, which is not in consonance with the Act or

the statutory rules applicable thereunder. An executive

order is to be issued keeping in view the rules and

executive business, though the executive order may not

have the force of law but it is issued to prove guidelines

to all concerned.

Similar view has also been taken by the apex

Court in Khet Singh v. Union of India, (2002) 4 SCC

380, Sant Ram Sharma v. State of Rajasthan, AIR // 23 //

1967 SC 1910 and Union of India v. Amrik Singh,

(1994) 1 SCC 269.

19. In G.M. Uttanchal Jal Sansthan v. Laxmi

Devi, (2009) 7 SCC 205, the apex Court held as follows:-

"We fail to understand how a mere circular letter which has no force of law shall prevail over the statutory rules. The respondents themselves have relied upon the decisions of the Court in DDA v. Joginder S. Monga, (2004) 2 SCC 297 : A. 2004 SC 3291 wherein it was held that executive instructions cannot run contrary to the statutory provisions."

Similar view has also been taken by the apex Court in

catena of decisions.

20. In view of the settled positions of law, as

enumerated above, it is made clear that the OCS

(Pension) Rules, 1992 is statutory and Rules-88 & 89

thereof explicitly provide that the benefit is to be

extended to the re-employed pensioner and, more so,

Rule-94 of the said Rules, 1992 makes it clear that the

drawal of various allowance and other benefits based on

pay shall be regulated with reference to the pay that is

fixed on re-employment. But, in the present case, the

petitioner was not getting any allowance rather he was // 24 //

receiving consolidated salary as per pre-revised Rules of

1998. Thereby, he cannot be denied the benefit which is

admissible to him in accordance with Rules-88 and 89

of the Rules, 1992. So far as office memorandum office

memorandum no.38284 dated 09.11.1994 is

concerned, it only supplements the provisions

contained in Rules-88 and 89 of the Rules, 1992 to the

extent grant of T.I. as per clause 4(b) of the office

memorandum. There is no dispute that the petitioner,

during his period of re-employment, was receiving

consolidated amount in the form of pay and it was not

inclusive of dearness allowance. The office

memorandum dated 09.11.1994 was issued in

consonance with the provisions contained in Rules-88

and 89 of the OCS (Pension) Rules, 1992. Thereby, the

Tribunal has committed gross error apparent on the

face of the record in passing the order impugned dated

13.05.2002 in O.A. No.1024 of 2000 rejecting the claim

of the petitioner to get T.I., which cannot be sustained

in the eye of law.

21. As regards the proposal furnished by the

authority, in pursuance of the representation filed by // 25 //

the petitioner, to give consolidated pay of Rs.7,500/-

per month to the petitioner by enhancing his

contractual pay, the same has been turned down on

14.03.2000 vide Annexure-11. On perusal of the same,

it is made clear that no reason has been assigned while

passing such order.

22. Franz Schubert said-

"Reason is nothing but analysis of

belief."

In Black's Law Dictionary, reason has been

defined as a-

"faculty of the mind by which it distinguishes truth from falsehood, good from evil, and which enables the possessor to deduce inferences from facts or from propositions."

It means the faculty of rational thought

rather than some abstract relationship between

propositions and by this faculty, it is meant the

capacity to make correct inferences from propositions,

to size up facts for what they are and what they imply,

and to identify the best means to some end, and, in

general, to distinguish what we should believe from

what we merely do believe.

// 26 //

Therefore, reasons being a necessary

concomitant to passing an order allowing the authority

to discharge its duty in a meaningful manner either

furnishing the same expressly or by necessary

reference.

23. "Nihil quod est contra rationem est

licitum" means as follows:

"nothing is permitted which is contrary to reason. It is the life of the law. Law is nothing but experience developed by reason and applied continually to further experience. What is inconsistent with and contrary to reason is not permitted in law and reason alone can make the laws obligatory and lasting."

Therefore, recording of reasons is also an assurance that

the authority concerned applied its mind to the facts on

record. It is pertinent to note that a decision is apt to be

better if the reasons for it are set out in writing because

the reasons are then more likely to have been properly

thought out. It is vital for the purpose of showing a

person that he is receiving justice.

In Re: Racal Communications Ltd. (1980)2

All ER 634 (HL), it has been held that the giving of

reasons facilitates the detection of errors of law by the

court.

// 27 //

In Padfield v. Minister of Agriculture,

Fisheries and Food (1968) 1 All E.R. 694, it has been

held that a failure to give reasons may permit the Court

to infer that the decision was reached by the reasons of

an error in law.

24. In Union of India v. Mohan Lal Capoor, AIR

1974 SC 87 it has been held that reasons are the links

between the materials on which certain conclusions are

based and the actual conclusions. They disclose how

the mind is applied to the subject-matter for a decision

whether it is purely administrative or quasi-judicial and

reveal a rational nexus between the facts considered

and conclusions reached. The reasons assure an inbuilt

support to the conclusion and decision reached.

Recording of reasons is also an assurance that the

authority concerned applied its mind to the facts on

record. It is vital for the purpose of showing a person

that he is receiving justice.

Similar view has also been taken in Uma

Charan v. State of Madhya Pradesh, AIR 1981 SC

1915.

// 28 //

25. In Travancore Rayons Ltd. v. The Union of

India, AIR 1971 SC 862 it is observed by the apex

Court that the necessity to give sufficient reasons

which disclose proper appreciation of the problem to be

solved, and the mental process by which the conclusion

is reached in cases where a non-judicial authority

exercises judicial functions is obvious. When judicial

power is exercised by an authority normally performing

executive or administrative functions, the Supreme

Court would require to be satisfied that the decision

has been reached after due consideration of the merits

of the dispute, uninfluenced by extraneous

considerations of policy or expediency. The court

insists upon disclosure of reasons in support of the

order on two grounds: one, that the party aggrieved in a

proceeding before the court has the opportunity to

demonstrate that the reasons which persuaded the

authority to reject his case were erroneous; the other,

that the obligation to record reasons operates as a

deterrent against possible arbitrary action by the

executive authority invested with the judicial power.

// 29 //

26. In Salabuddin Mohamed Yunus v. State of

Andhra Pradesh, AIR 1984 SC 1905, the apex Court

held that the payment of pension does not depend upon

the discretion of the State but is governed by the rules

made in that behalf and a Government servant coming

within such rule is entitled to claim pension.

27. The concept of 'pension' is now well known

and has been clarified by the apex Court time and

again. It is not a charity or bounty nor is it gratuitous

payment solely dependent on the whim or sweet will of

the employer. It is earned for rendering long service and

is often described as deferred portion of compensation

for past service. It is in fact in the nature of a social

security plan to provide for the December of life of a

superannuated employee. Such social security plans

are consistent with the socio-economic requirements of

the Constitution when the employer is a State within

the meaning of Article 12 of the Constitution.

28. Rule-33 (3) of the Odisha Service Code

prescribes "Pension", which reads as under:-

"(3) Pension & Gratuities:- In case of employees who have retired on or after 1.7.86, the dearness pay shall count as // 30 //

emoluments for pension and gratuity in terms of Rule 73 of the Orissa Pension Rules 1977. The doses of temporary increase totaling to 8% of the pension subject to minimum of Rs.25/- and maximum of Rs.80/- will not however be admissible in these cases. These pensioners shall be entitled to further dose of temporary increase as may be declared effective after 1.1.86 from time to time. If however, the pension admissible without taking into account the dearness pay but the adhoc increase in pension is more favourable that the benefit under this order the individual can be granted the former. The dearness pay will also count as pay for the purpose of Family Pension Scheme, as amended from time to time."

29. Rule-(2)(p) of Odisha Civil Services (Pension)

Rules, 1992 reads as under:-

"(p) "Pension" includes gratuity except where the term pension is used in contradiction to gratuity."

30. Taking into account the broad meaning of

"pension", as mentioned above, pension is nothing but a

periodical payment of money for past service.

31. In D.S. Nakara, as mentioned supra, the

apex Court held as follows:-

"Pension" is neither a bounty nor a matter of grace depending upon the sweet will of the employer, nor an ex gratia payment but it is a payment for the past service rendered; and it is social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on as assurance that in their old age they would not be left in lurch. Pension as a retirement benefit is // 31 //

in consonance with and furtherance of the goals of the Constitution. The most practical raison d'etre for pensions is the inability to provide for oneself due to old age. It creates a vested right and is governed by the statutory rules such as the Central Civil Services (Pension) Rules which are enacted in exercise of power conferred by Articles 309 and 148(5) of the Constitution."

32. In Poornamal v. Union of India, AIR 1985

SC 1196 : (1985) 3 SCC 345, the apex Court referring to

the judgment in Deakinandan Prasad v. State of

Bihar, AIR 1971 SC 1409, held that "Pension" is not

merely a statutory right but it is the fulfillment of a

constitutional promise, inasmuch as it partakes the

character of public assistance in case of unemployment,

old-age, disablement or similar other cases of

undeserved want. Relevant rules merely make effective

the constitutional mandate. Pension is a right not a

bounty or gratuitous payment.

33. In Kerala State Road Transport

Corporation v. K.O. Varghese, AIR 2003 SC 3966, it

has been held that the title 'pension' includes pecuniary

allowances paid periodically by the Government to

persons who have rendered services to the public or

suffered loss or injury in the public service, or to their // 32 //

representative; who are entitled to such allowances and

rate and amount thereof; and proceedings to obtain and

payment of such pensions. Pension means a periodical

payment or lump sum by way of pension, gratuity or

superannuation allowance as respects which the

secretary of State is satisfied that it is to be paid in

accordance with any scheme of arrangement having for

its object or one of its objects to make provision in

respect of persons serving in particular employments for

providing with retirement benefits and, except in the

case of such a lump sum which had been paid to the

employee.

In the aforesaid judgment the word 'pension'

has also been analyzed, which reads as under:-

"On analysis of the word 'pension' three things emerge; (i) that the pension is neither bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to the statute, if any, holding the field; (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is social welfare measure rendering socio-economic justice to those who in the 'hey days' of their life ceaselessly toiled for employers on an assurance that in their ripe old age they would not be left in lurch. It must also be noticed that the quantum of pension is a certain percentage correlated to the emoluments earlier drawn. Its payment is // 33 //

dependent upon additional condition of impeccable behavior even subsequent to retirement.

Pension is not a bounty of the State. It is earned by the employee for service rendered to fall back, after retirement. It is a right attached to the office and cannot be arbitrarily denied.

Conceptually, pension is a reward for past service. It is determined on the basis of length of service and last pay drawn. Length of service is determinative of eligibility and quantum of pension."

34. In V. Sukumaran, as mentioned supra, it

has been held that pension is succor for post retirement

period, which is not a bounty payable at will, but social

welfare measure as post-retirement entitlement to

maintain dignity of employee.

35. In Col. B.J. Akkara v. Govt. of India, (2006)

11 SCC 709, the apex Court held that the pay of an

employee does not remain static. This is almost an

universal rule in public services. An employee starts

with a particular pay (commonly known as initial pay);

then journeys through periodical increases (commonly

known as increments) to reach the highest point that he

is entitled to (commonly known as the ceiling). This is

what a pay scale signifies. A 'pay scale' has basically

three elements. The first is the minimum pay or initial // 34 //

pay in the pay scale. The second is the periodical

increment. The third is the maximum pay in the pay

scale. An employee starts with the initial pay in the pay

scale and gets periodical increases (increments) and

reaches the maximum or ceiling in the pay scale. Each

stage in the pay scale starting from the initial pay and

ending with the ceiling in the pay scale, when applied to

an employee is referred to as 'basic pay' of the employee.

Whenever the Government revises the pay scales, a

fitment exercise takes place as per the principle of

fitment (formula) provided in the rules governing the

revision of pay so that the basic pay in the old scale is

converted in to a "basic pay" in the revised pay scale.

36. In Gurupal Tuli v. State of Punjab, 1984

(Supp) SCC 716 : AIR 1984 SC 1901, the apex Court

held that to be entitled to draw a particular pay scale

the employee must fulfill the eligibility conditions

whether by way of qualification or otherwise.

Since no reason has been assigned in the

letter dated 14.03.2000 under Annexure-11 while

turning down the claim of the petitioner for // 35 //

enhancement of his contractual pay from Rs.5,000/- to

Rs.7,500/- per month, the said letter cannot be

sustained in the eye of law and is liable to be quashed,

and the petitioner is eligible to get his pensionary

benefits and T.I., as admissible to him. Accordingly,

questions no.1 and 2 are answered in favour of the

petitioner.

37. Keeping in view the above meaning attached

to the word "pension" and applying the law, as

discussed above, to the present case, the order/letter

dated 14.03.2000 under Annexure-11 turning down the

representation filed by the petitioner for enhancement of

his contractual pay from Rs.5,000/- to Rs.7,500/- per

month, as well as the order dated 13.05.2002 passed by

the Tribunal in O.A. No.1024 of 2000 under Annexure-

12 refusing to grant T.I. in favour of the petitioner,

cannot be sustained in the eye of law. Accordingly, the

same are liable to be quashed and are hereby quashed.

Consequentially, this Court directs the opposite parties

to extend the pensionary benefits, as due and

admissible to the petitioner, by granting T.I. and re-

fixing pension by revising his pension as expeditiously // 36 //

as possible, but not later than three months from the

date of production/communication of certified copy of

this judgment. Needless to say, entire computation shall

be made and the amount shall be paid to the petitioner

forthwith taking into consideration the fact that the

petitioner is at fag end of his life, as he is now 88 years

of age.

38. In the result, the writ petition is allowed. But,

however, in the facts and circumstances of the case,

there shall be no order as to costs.

                                                             (DR. B.R. SARANGI)
                                                                 JUDGE

            M.S. RAMAN, J.            I agree.


                                                                  (M.S. RAMAN)
                                                                      JUDGE



                           Orissa High Court, Cuttack
                           The 22nd September, 2023, Alok




Signature Not Verified
Digitally Signed
Signed by: ALOK RANJAN SETHY
Designation: Secretary
Reason: Authentication
Location: Orissa High Court
Date: 22-Sep-2023 18:05:16