Orissa High Court
Paradip Port Trust vs Union Of India on 18 November, 2024
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.16377 of 2021
In the matter of an Application under
Articles 226 and 227 of the Constitution of India, 1950
***
Paradip Port Trust
Officer Pensioners Association
Bhubaneswar
Represented through its General Secretary
Shesadev Sahoo
Aged about 78 years
Son of Late Udayanath Sahoo
At: Mahavinayak Puram, Plot No.BD/24
P.O.: KIIT, Bhubaneswar
District: Khordha. ... Petitioner
-VERSUS-
1. Union of India
Represented through its Secretary
Ministry of Ports, Shipping and
Water Ways (PHRD) Division
New Delhi.
2. Chairman, Paradip Port Trust
Paradip, District: Jagatsinghpur
3. Financial Advisor and Chief Accounts Officer
Paradip Port Trust, Paradip
District: Jagatsinghpur ... Opposite parties.
Counsel appeared for the parties:
For the Petitioner : M/s. Manoja Kumar Khuntia,
Gyana Ranjan Sethi and
Ms. Babita Kumari Pattanaik,
Advocates
For the Opposite party : Mr. Prasanna Kumar Parhi,
No.1 Deputy Solicitor General of India.
For the Opposite party : M/s. Satya Smruti Mohanty,
Nos.2 and 3 Swayamjit Rout and
Nishit Agarwal, Advocates
P R E S E N T:
HONOURABLE
MR. JUSTICE MURAHARI SRI RAMAN
Date of Hearing : 21.08.2024 :: Date of Judgment : 18.11.2024
J UDGMENT
Assailing the communication dated 12.04.2021 of the
Administrative Department of the Paradip Port Trust
addressed to the General Secretary of Paradip Port Trust
Officer Pensioners Association, Sri Shesadev Sahoo, ex-
Welfare Officer, affirming to be the petitioner, has filed
the present writ petition with the following prayers:
"It is, therefore, humbly prayed that this Hon‟ble Court
may graciously be pleased to admit the case, call for the
records and after hearing both the parties pass the
following reliefs:
i) To quash the order dated 12.04.2021 under
Annexure-5.
ii) To direct opposite parties to revise pension accrued
under 2nd Method in favour of Class-I and Class-II
Officers in Paradip Port Trust retired prior to
01.01.2017 in accordance with Notification dated
05.02.2020;
iii) To direct the Opposite Parties to grant all financial
benefits consequent upon revision of pension
accrued under 2nd method in accordance with
notification dated 05.02.2020;
And pass such other order/orders as may be deemed fit
and proper for the interest of justice.
And for this act of kindness, the petitioner as in duty
bound shall ever pray."
Facts:
2. The petitioner, styled as "Paradip Port Trust Officer
Pensioners Association", Bhubaneswar has come up
before this Court seeking to direct the opposite parties to
extend the benefit by calculating consolidated revised
pension under the second method in favour of Class-I
and Class-II Officers of Major Port and Dock Labour
Board, retired prior to 01.01.2017 in terms of Circular
dated 05.02.2020 of the Ministry of Ports, Shipping and
Waterways (PHRD) Division by quashing communication
vide Letter No.907--AD/RR/II/19/2016 (Pt.II), dated
12.04.2021 by the Paradip Port Trust, Administrative
Department.
2.1. The facts and figures as emanates from the contents of
the writ petition have been narrated hereinafter.
2.2. The Government of India set up a Pay Revision
Committee vide Office Memorandum No.A29018/2/
2016-TE-1, dated 28.10.2016 to formulate the pay
revision of Class-I and Class-II Officers of Major Port
Trust and Dock Labour Boards to be effective from
01.01.2017. Taking into account the recommendation
made by the Pay Revision Committee, the competent
authority accorded approval for revision of pension and
pensionary benefits of the Officers of Major Port Trust
and Dock Labour Boards who retired prior to
01.01.2017. Accordingly, the opposite party No.1-
Ministry of Shipping (PHRD) issued Instruction Circular
bearing No.A-29018/2/2016-PE-I, dated 05.02.2020
(referred to as "Circular, 2020" for convenience) for
working out one of the alternative methods for
computation of consolidation of pension for pre-
01.01.2017 retirees.
2.3. Said Circular, 2020 provided for calculation of
consolidation of pension in the following manner:
"2.0 First method for consolidation of pension.--
The first method is to grant DA merger and Fitment
Benefit as allowed to serving employees.
2.1 The consolidation of pension in respect of pre-01.01-
2012 retirees/Family Pensioners may be done as
indicated below:
(i) The existing Pension/Family Pension
(ii) Dearness Relief as on 01.01.2017 (upto AICPI
(2001=100) average index 277)
(iii) Fitment Benefit @ 15% of (i) + (ii)
The amount (i+ii+iii) so arrived shall be considered
as Consolidated Pension/Family Pension w.e.f.
01.01.2017. The fixation of pension will be subject to
the provision that the revised pension shall in no
case be lower than 50% of minimum of the revised
pay scales corresponding with the pre-revised pay
scales of the post from which the Pensioner had
retired. The revised Family Pension shall in no case
be lower than 30% of minimum of the revised pay
scales of the post corresponding with the pre-revised
pay scales of the post from which the Pensioner had
retired.
2.2 The Pension/Family Pension of employees
retired/died during the period from 01.01.2012 to
31.12.2016 may be consolidated as indicated below:
(i) The Pension/Family Pension"recalculated after
excluding the element of Special Pay of 17.5%
of mean pay.
(ii) Dearness Relief as on 01.01.2017 (upto AICPI
(2001=100) average index 277).
(iii) Fitment Benefit @ 15% of (i) + (ii).
The amount (i+ii+iii) so arrived shall be considered
as Consolidated Pension/Family Pension w.e.f.
01.01.2017.
2.3 For this purpose, existing Pension/Family Pension
will be the basic Pension/Family Pension only
without the element of additional pension available
to the old pensioners/family pensioners of the age of
80 years and above.
2.4 The additional pension/family pension payable to
the old pensioners/family pensioners will be worked
out separately.
2.5 Since the consolidated Pension will be inclusive of
the commuted portion of Pension, if any, the
commuted portion will be deducted from the said
amount while making monthly disbursement.
3.0 Second method for consolidation of pension.--
3.1 In the second formulation, the Pension/Family
Pension of employees who retired/died prior to
01.01.2017 may be revised by notionally fixing their
pay in the revised scales of pay of the post
corresponding to the pay in the pre-revised pay scale
of the post at which they retired/died. This will be
done by notional pay fixation under each intervening
Pay Revisions, based on the formula for revision of
pay. While fixing pay on notional basis, the pay
fixation formulae as per pay revision orders and
other relevant instructions on the subject in force at
the relevant time shall be strictly followed. 50% of
the notional pay as on 01.01.2017 shall be the
revised pension and 30% of this notional pay shall
be the revised family pension w.e.f. 01.01.2017 as
per this formulation. In the case of family pensioners
who were entitled to family pension at enhanced
rate, the revised family pension shall be 50% of the
notional pay as on 01.01.2017 and shall be payable
till the period up to which family pension at
enhanced rate is admissible as per Rules. The
amount of revised pension/family pension so arrived
at shall be rounded off to next higher Rupee.
3.2 The higher of the two formulations i.e. the
revised pension/family pension as per first
method or the revised pension/family pension
as worked out in accordance second method
above, shall be granted to pre-2017 pensioners
as revised pension/family pension w.e.f.
01.01.2017.
4.0 As the notional fixation of pay in different Pay
Revisions will take time, Ports shall pay arrears of
revised pension as per First Method and take
expeditious action for notional fixation of pay and
revision of pension. For calculation of arrears
becoming due on the revision of pension/family
pension on the basis of Second Method, the arrears
of revised pension/family pension already paid on
revision of pension/family pension in accordance
with First Method shall be adjusted. The interim
relief granted vide Ministry letter No. A-
29018/13/2013-PE-I (pt) dated 09.03.2019 shall
be adjusted from the arrears.
5.0. While implementing the pay revision order dated
03.08.2010, some Port Trusts had upgraded the pre
revised pay scale of Rs.9,100-15,100/- to 10,750-
16,750/- on 31.12.2006 and then revised the pay
scales to Rs.20,600-46,500/- on 01.01.2007. This
issue was examined by this Ministry in consultation
with Department of Expenditure and clarification
was issued on 23.11.2016. The clarification issued
by this Ministry has, however, been challenged in
the Hon‟ble Calcutta High court and Mumbai High
Court which is now the subject matter in the pending
W.P. No. 1128 of 2016 and pending W.P. No 1703 of
2017 respectively. The pension of the officers
affected by the above mentioned litigation may be
revised with effect from 01.01.2017 but no arrears
shall be paid or recoveries shall be made till the final
outcome of the above said Court cases. This fixation
is an interim measure. Final settlement of such cases
shall be based on the decision of the Hon‟ble Courts
in the said cases.
6.0 This Pension Consolidation Order shall be
implemented by the Major Port Trusts only after
rectifying the anomalies, if any, done by some Ports
in respect of officers who retired from 01.01.2007 to
31.12.2016, by upgradation of pay scales, grant of
bunching increments and stepping up of pay, as
directed by this Ministry‟s letter No. A-29018/4/
2019-PE-I dated O1st October, 2019. Ports shall
submit a confirmation to this effect to the Ministry."
2.4. As per said Circular, 2020 the petitioner claims to be
entitled for revision of pay in accordance with the second
method but under misconception the opposite party
No.2 has implemented the purport of the revision of
pension choosing higher amount arrived at by not
computing in its right earnest as envisaged in Circular,
2020. On the other hand, the opposite parties have
released the payment by deducting the interim relief
granted by the Letter dated 09.03.2019 of the Ministry.
To ventilate its grievance, the General Secretary of the
Paradip Port Trust Officer Pensioners Association
requested for revision of the pension by adopting the
second method.
2.5. The Paradip Port Trust in Administrative Department
vide Letter No.907-AD/RR/II/19/2016 (Pt.II), dated
12.04.2021 ("communication, 2021", for brevity) has
intimated that the Paradip Port Trust has revised the
pension of retired employees in accordance with the
Circular, 2020. As per the calculation of the opposite
parties, the petitioner is stated to be entitled to
Rs.35,540/- as per the first method; whereas, the
amount arrived at is Rs.35,540/- by application of the
second method. It is alleged that such calculation
contradicts methodology envisaged in the Circular,
2020. For appreciating above fact, it is fruitful to quote
the contents of said communication, 2021:
"Sir,
With reference to the representation, vide letter
No.PPTOPA/01/21 dated 01.03.2021, on the above
subject.
2. Finance & Accounts Department has since issued
reply, vide their letter 20.10.2020, mentioned that
"as per the order of the Ministry dated
05.02.2020, pension has to be calculated in
two methods and the pensioners will get the
higher of the two methods" and Paradip Port
Trust has revised the pension of the retired
employees, accordingly.
This is for favour of your information please."
2.6. Accordingly, the pay of all those employees who retired
prior to 01.01.2017 and were in receipt of pension as on
01.01.2017 is required to be fixed on notional basis in
the revised scale of pay for the post held by the
pensioner at the time of retirement or on the date of
death of the employee.
2.7. The Government of India in Ministry of Ports, Shipping
and Waterways (PHRD Division) in its First Meeting of
Anomaly Committee held on 24.12.2020 vide Minutes
F.No.A-29018/2/2016-PE-I, dated 16.03.2021 resolved
inter alia following issues relevant for the present
purpose:
Sl. Issue Represen-tationer Comments/
No. observations
2. In pension revision order All India Federation of The existing
for pre-01.01.2017 Port and Dock provision conveys
retirees replacing Pensioners‟ Association the same meaning
(18.05.2020) as the words "of
"the revised pension the post" have
shall in no case be lower been used once.
than 50% of minimum of
the revised pay scales of
the post from which the
pensioner had retired"
with
"the revised pension
shall in no case be lower
than 50% of minimum of
the revised pay scales of
the post corresponding
with the pre-revised pay
scales of the post from
which the pensioner had
retired."
7. Request to reconsider All India Federation of It was decided
the exclusion of 17.5% Port and Dock vide the pay
special pay for Pensioners‟ Association revision order
calculating fitment (18.05.2020) dated 05.02.2020
benefit from 01.01.2017. Major Ports Retired at para 2.3 that
Petitioners have claimed Officers Association the Special Pay
that not including 17.5% (09.09.2020) granted vide
special pay in the pay MPT Retired Officers‟ Ministry‟s order
revision from 01.01.2017 Association (18.05.2020) dated 20.07.2017
has again resulted in an Cochin Port Retired is to be subsumed
anomaly between Class-I Employees‟ Forum in the pay
and Class-II Port Officers (07.10.2020) revision,
and Class-III and Class- Visakhapatnam Port accordingly while
IV Port employees Retired Officers Welfare working out the
Association (09.09.2020) fitment benefit,
Sh. Sureshkumar M. the element of
(19.05.2020) special pay is to
Choudhary Venkatagiri be ignored. The
(12.07.2020) order was based
on the PRC
recommendations.
Special pay was
granted to officers
affected by pay
revision of Group
C and D
employees only
and not to all
officers. It is
granted as an
interim measure.
For arriving at the
scales of pay and
fitment benefit of
officers of Major
Port Trusts, DPE
Guidelines are
followed. Hence,
there is no ground
for
reconsideration.
2.8. In consonance with the above clarification, the amount
of pension as calculated by the petitioner-Shesadev
Sahoo (retired prior to 01.01.2017) would stand thus:
01. Existing basic pay on the date of retirement Rs. 28,120/-
02. Revised scale of the post corresponding to the post in Rs. 40,000/-
pre-revised pay scale of the post at which he retired to
Rs.40,000/- Rs. 1,40,000/-
03. Revised scale of the post Rs. 40,000/-
04. Dearness relief to AICPI to 277 point is 119.8% Rs. 47,920/-
05. Fitment benefit @ 15% (3+4) Rs. 13,188/-
Total Rs. 1,01,108/-
2.9. It is the claim of the petitioner that the notional revised
scale of pay of the post should have been fixed at
Rs.40,000/- and the calculation of revised pension is
sought to be made by the petitioner in tune with second
method vide Circular, 2020 instead of the modality
specified in the impugned communication, 2021
(Annexure-5), which stated that "as per the order of the
Ministry dated 05.02.2020, pension had to be calculated
in two methods and the pensioners will get the higher of
the two methods". The calculation sheet in respect of Sri
Shesadev Sahoo, ex-Welfare Officer, as placed on record
at Annexure-6-- "Methodology Revision of Pension with
effect from 01.01.2017 as per MoS No.A-29018/2/2016-
PE-I" signed by the Deputy Chief Accounts Officer,
Paradip Port Trust vide Annexure-6 depicts the following
facts and figures:
Consolidation of pension of
employees retired / died pre-01.01.2017
Method-I Method-II
01. Name and Designation of Shesadev Sahoo,
retiree/died ex-Welfare Officer
02. PPO No. 2293
03. Date of retirement/death 28.02.2010
04. Scale of pay at Rs. 16,400/-
the time of -
retirement (pre- Rs. 40,500/-
revised)
05. Revised Rs. 40,000/-
corresponding -
Scale of Pay as Rs. 1,40,000/-
on 01.01.2017
06. Existing basic Rs. 14,060/- 10. Existing basic Rs. 28,120/-
pension/ family pay as on date of
pension retirement/death
07. Dearness relief Rs. 16,844/- 11. Dearness relief Rs. 33,688/-
up to AICPI 277 up to AICPI 277
point is 119.8% point is 119.8%
Total Rs. 30,904/- Rs. 61,808/-
08. Fitment @ 15% Rs. 4,636/- 12. Fitment @ 15% of Rs. 9,271/-
of (6+7) (10+11)
09. Total of (6+7+8) Rs. 35,540/- 13. Total of Rs. 71,079/-
(Amount (10+11+12)
rounded to next
higher rupee)
14. Amount rounded Rs. 71,080/-
to next higher
rupees
15. Revised/family Rs. 35,540/-
pension, i.e.,
50%/30% of
notional basic
pay arrived at
(serial No.14)
16. Revised pension/ family pension as on 01.01.2017 will be Rs. 35,540/-
higher in between 9 and 15
17. Basic pension/family pension as on 01.01.2017
a. Original pension Rs. 35,540/-
b. Less: commutated pension Rs. 3,555/-
c. Residuary pension Rs. 31,985/-
d. Enhanced pension Rs. 35,540/-
e. Normal pension Rs. 21,324/-
2.10. The petitioner asserts that if calculation is made
according to the first method, then the consolidated
revised pension would be around Rs.35,540/-,
nonetheless, on calculation as specified in the second
method, the consolidated revised pension would stand at
around Rs.50,560/-.
2.11. Therefore, the petitioner craving to quash the
communication, 2021, has alleged that,
"as wrong calculation has been done by the authorities
the members of the petitioner‟s Association have been
deprived of their pension with effect from 01.01.2017 in
an erroneous manner".
Counter affidavit of the opposite parties:
3. By way of filing Memorandum of Appearance dated
25.06.2021 on 28.06.2021, Assistant Solicitor General of
India, Government of India for High Court of Orissa
entered appearance and, accordingly, while issuing
notice in the instant writ petition on 05.07.2021, this
Court directed copies of the writ petition to be served on
learned Assistant (redesignated as "Deputy") Solicitor
General of India representing the opposite party No.1-
Ministry of Ports, Shipping and Waterways. Despite
compliance, the learned Deputy Solicitor General of
India chose not to file response to the writ petition
though the matter was listed on 16.01.2023 and
29.08.2023. Neither any counter affidavit is forthcoming
nor did he moved any petition seeking to extend the time
to file the response.
4. Sri Satya Smruti Mohanty, learned Advocate represented
the opposite party Nos.2 and 3, and on 01.11.2021 filed
counter affidavit being sworn to by Shri Dharmendra
Nath Sondhi, Financial Advisor and Chief Accounts
Officer, Paradip Port Trust, Paradip Port in the district of
Jagatsinghpur (opposite party No.3) on 25.10.2021, who
also affirms to have been authorised to file the counter
affidavit on behalf of the opposite party No.2.
4.1. In the counter affidavit it has been asserted that as per
the Clause 3.2 of the Circular, 2020 (Annexure-1 of the
writ petition), the revised pension/family pension
whichever is higher or beneficial between the resultant of
calculations made as specified in Method-I and Method-
II is extended to the pensioners of pre-01.01.2017
retirees. Accordingly, the opposite parties have released
the pensions in favour of each of the pensioners as per
the above methodology.
4.2. As an interim measure, payment was released in favour
of all Port Pensioners viz. Class-I and Class-II officers
with effect from March, 2019 vide Office Order dated
10.04.2019 and the same has been done in accordance
to the Circular dated 09.03.2019 issued by the opposite
party No.1. However, in the above-mentioned Circular
dated 05.02.2020 at Clause 4 it has been clarified that
the interim „payment granted vide Circular dated
09.03.2019 would be adjusted from the arrears. The
Office Memorandum No.1241-- AD/RR/II/06/2015
(Pt.), dated 10.04.2019 made it clear that "The interim
amount paid would be adjustable against the pension
revision arrears, if any, payable from 01.01.2017 or
01.01.2012 as the case may be, subject to the outcome of
the pending writ appeal No.1642 of 20171". Therefore,
1 Appears to have referred to, Union of India and others Vrs. Chennai Port & Dock
Officers‟ Association, W.A. No.1642 of 2017, disposed of on 08.04.2024, by a
Division Bench of the Madras High Court with the following observation:
"2.1. *** The major trade unions used to place charter of demands once in five
years and arriving at a negotiated wage settlement with the Management
of second respondent Port Trust.
2.2. The last of such wage settlement in respect of unionised category expired
on 31.12.2011 and a new wage settlement was arrived at giving effect to
the revision of salary with effect from 01.01.2012. It is also in practice
that as soon as wage settlement in respect of unionised category is
finalized, the management of the second respondent Port Trust used to
arrive at an agreement for revision of salary in respect of Class I and II
officers. However though wage settlement in respect of Class III and IV
employees were finalised and given effect from 01.01.2012, no such
salary revision for Class-I and Class-II Officers was undertaken by the
Management of the second respondent Port Trust.
2.3. *** The demand of Class I and II officers were referred to the third
appellant/Ministry of Shipping and the third appellant in turn referred it to
the third respondent/Indian Port Association and also constituted a sub-
committee under the chairmanship of Shri. P.C. Parida, Deputy Chairman,
Chennai Port Trust for finding out viable solution. The said sub-committee
consisted of four other officials. The said sub-committee after thorough
analysis rendered a report dated 03.06.2014. The above report was
forwarded to the third appellant/Ministry of Shipping. However,
the report was not accepted by the third appellant/Ministry of
Shipping and it was kept under consideration. In the meanwhile, the
due wage revision extended to Class III and IV employees, their pay was
substantially increased and most of the Class II officers stated getting
lesser salary than that of Class III employees.
2.4. *** The Writ Court, by order dated 04.04.2017[W.P. No. 41669 of 2016
(Chennai Port & Dock Officers‟ Association Vrs. Union of India) disposed of
on 04.04.2017 (2017 SCC OnLine Mad 18757)], allowed the writ petition
with the following observations:
"A detailed counter affidavit has been filed by the respondents 1 to 3
opposing the above prayer. A perusal of the counter affidavit shows that
when a Committee has been constituted to formulate the proposals for pay
revision of Class I & II officers to be effective from 01.01.2017, this Court
could see that the pay revision has been ordered for Class III & IV
employees to be made effective from 01.01.2012. While that being the
case, the pay revision of Class I and II officers also should be from
01.01.2012, failing which the same would amount to clear discrimination.
Therefore, the decision taken by the third respondent to formulate the
proposal for pay revision of Class I & Class-II officers from 01.01.2017,
leaving the period from 01.01.2012 to 01.01.2017, is without any
justification, for the reason that when the Class III & IV employees of
Major Port Trusts have been given the benefit from 1.1.2012, the members
of the petitioner Association are also justified in approaching this Court for
a direction to the Committee constituted under the impugned office
memorandum to formulate the proposals of pay revision of Class I &
Class-II officers from 01.01.2012.
Therefore, while accepting the impugned office memorandum to
constitute a Committee consisting of the Chairman and Members to
formulate proposals for the pay revision of Class I & II officers of
Major Port Trusts and Dock Labour Board, the said committee
shall examine and formulate the proposal of pay revision for Class
I & II officers from proposal of pay revision for Class I & II officers
from 1.1.2012, after inviting the views of the members of the
petitioner Association. The writ petition stands allowed."
2.5. Challenging the said order, the petitioner Department has filed the present
intra court appeal.
***
3. In this context, the learned counsel appearing for the Chennai Port Trust
seeks two weeks time to get written instructions on this aspect as to
whether the Special Pay has been paid to all the employees who are
entitled to and pursuant to which, whether the Port has implemented the
recommendation of the Committee for pay revision for the period from
01.01.2017 onwards as directed by the Co-ordinate Bench of this Court
by order dated 31.10.2019.
4. He further submits that pursuant to the aforesaid interim directions issued
by this court, the second respondent Port Trust has filed a status report of
the Ministry of Shipping dated 20.07.2017 with respect to payment of
17.5% special pay to the Officers along with supporting documents. The
order of the Ministry of Shipping reads as follows:
„The Class I and II officers of Major Port Trusts/DLBs may be granted
special pay of 17.5% of the mean of pay grades, to be treated as basic
pay for all purposes, with effect from 01.01.2012 subject to the condition
that as on 01.01.2012, the overall increase in Pay+DA should not be more
than Rs.6890/- (maximum increase in pay of Group C &D employees).
Further provided that the grant of above special pay will be admissible to
the affected officers only. The additional cost would be met by Ports from
their internal resources alone and no financial support/assistance will be
provided by the Government of India.‟
5. For the said status report filed by the second respondent Port Trust, the
first respondent Association herein has filed its objection before this Court.
6. Learned Additional Solicitor General of India has stated before
this Court that the directions issued by the writ court was to
consider the claim of the first respondent Association
herein/petitioner on par with Group C and D employees. Now that
the said claim of the first respondent Association herein has been
duly considered by the committee constituted by the Ministry of
Shipping and a status report has been filed before this Court, the
objection made by the first respondent herein could not be decided
in this writ appeal. Pursuant to the said status report, the Ministry of
Shipping has to pass a memorandum. It is further submitted that the
recommendations made by the Committee for pay revision are well
reasoned are within the legal limits and therefore, the status report filed
by the second Port Trust cannot be challenged by the first respondent
herein in the present writ appeal.
7. Learned Senior Counsel appearing for the first respondent Association
submitted that though as per the order dated 20.07.2017 of the third
appellant/Ministry of Shipping, the special pay of 17.5% to be treated as
basic pay for all purposes, a ceiling has been prescribed to the effect that
the amount paid should not be more that of Rs.6890/-, which is totally
untenable and therefore, on the aforesaid ground, he states that the
status report is not sustainable.
after finalization of the consolidated pension/family
pension as per the Circular dated 05.02.2020, the same
has been released after adjusting the above interim
payment.
4.3. Clarifying the position with respect to Sri Shesadev
Sahoo-petitioner, retired on 28.02.2010, it has been
stated that his basic pay was fixed at Rs.28,120/- in the
pre-revised scale of pay of Rs.16,400/- -- Rs.40,500/-.
After Circular dated 05.02.2020, being issued, the pay
scale was revised to Rs.40,000/- -- Rs. 1,40,000/- and,
accordingly his basic pay at the time of retirement has
been worked out notionally by taking the dearness relief
and 15% fitment.
8. In view of the elaborate submissions made by the parties, it is
apparent that in the present appeal, the aforesaid disputed facts,
cannot be gone into and further only after due proceedings has
been issued by the Ministry of Shipping/third appellant, the first
respondent Association herein will have the right to challenge the
said proceedings in a manner known to law.
9. Therefore, in the light of the above, this Court is inclined to direct the third
appellant, to issue necessary proceedings by complying the directions
given by the Co-ordinate Bench by interim order dated 31.10.2019 to
implement the recommendations of the committee for Pay Revision, within
a period of four weeks from the date of receipt of a copy of this order and
we make it clear that if the first respondent Association/writ petitioner is
aggrieved by such proceedings, it is open to them to challenge the same
before the appropriate forum.
10. With the above directions the writ appeal stands disposed of.
Consequently, CMP Nos.21448 of 2017, 17758 and 19645 of 2018 and
10043 and 10865 of 2019, are closed."
4.4. It has been expanded by clarifying the position in
paragraphs 12 and 13 of the counter affidavit in the
following manner:
"12. That, in case of General Secretary of the petitioner-
Association, the pension calculation (as detailed in
Annexure-6 of the writ petition) in both the methods
comes to Rs.35,540/- and, hence, the said amount
was fixed as his revised pension/family pension.
The contention of the petitioner that his basic
pay of Rs.28,120/- should fixed directly to
Rs.40,000/- has no basis as the basic pay of
the retiree shall always be taken from the
amount he/she last drawn at the time of
retirement2.
13. That, for better appreciation of facts, another
calculation of a pensioner Sri Rahas Bihari Muduli,
(Asst. Engineer (Civil) (Class-II) is attached herewith
where the revised pension/family pension comes to
Rs.31,775/- as per Method-II and Rs.31,292/- as
per Method-I respectively. Hence, the higher
amount/beneficial amount of revised pension
i.e. Rs.31,775/- as per Method-II has been fixed
in favour of Sri Muduli. A copy of the calculation
sheet of Sri Muduli is enclosed as Annexed as
Annexure-C."
4.5. Calculation sheet at Annexure-C enclosed to counter
affidavit depicts facts and figures as follows:
2 Supported by ratio of Col. B.J. Akkara (Retd.) Vrs. Government of India, (2006) 11
SCC 709 (paragraph 20); Tapan Kumar Mohanty Vrs. Chairman, Paradip Port
Trust, 2007 SCC OnLine Ori 147 (paratraph 14) and State of Himachal Pradesh
Vrs. Rajesh Chander Sood, (2016) 10 SCC 77 (paragraph 44).
Revision of pension and other pensionary benefits to
Class-I and Class-II Officer with effect from 01.01.2017
MoS Order No.A-29018/2/2016-PE-I, dated 05.02.2020
01. Name Rahas Bihari Muduli
02. Designation Ex-AE (C)
03. PPO No. 1894
04. Date of birth 15.03.1947
05. Date of entry 23.10.1972
06. Date of retirement/death 31.03.2005
07. Pay scale at the time of retirement Rs.8,600/- -- Rs.14,600/-
08. Last pay drawn Rs. 10,850/-
09. Name of the family pensioner
Fitment formula
Method-II
Pay fixation (notional)
01.01.2007
10. Corresponding revised scale of pay Rs.8,600/- -- Rs.14,600/-
(i) Basic pay as on 31.12.2006 Rs. 10,850/-
(ii) Variable DA (78.2%) (CPI Index 2884) Rs. 8,485/-
(iii) Add (i) + (ii) Rs. 19,335/-
(iv) Fitment @ 30% (iii) Rs. 5,801/-
(v) Total Rs. 25,136/-
(vi) Rounded to next Rs.10/- Rs. 25,140/-
(vii) Pay fixed as on 01.01.2007 Rs. 25,140/-
01.01.2017
11. Corresponding revised scale of pay Rs.40,000/- -- Rs.1,40,000/-
(i) Basic pay as on 31.12.2016 Rs. 25,140/-
(ii) Variable DA (119.8%) as on 01.01.2017 Rs. 30,118/-
(iii) Add (i) + (ii) Rs. 55,258/-
(iv) Fitment @ 15% (iii) Rs. 8,289/-
(v) Total Rs. 63,547/-
(vi) Rounded to next Rs.10/- Rs. 63,550/-
(vii) Pay fixed as on 01.01.2017 Rs. 63,550/-
12. Pension
(i) Basic pension (50% of basic pay) Rs. 31,775/-
(ii) Commuted pension Rs. 2,137/-
(iii) Residuary pension (i) + (ii) Rs. 29,638/-
As per Clause 3.0 Second (sic. First) Method for consolidation of pension
Method-I
13. Calculation of pension
(i) Basic pension as on 31.12.2016 Rs. 12,379/-
(ii) Variable DA (119.8%) as on 01.01.2017 Rs. 14,831/-
(iii) Add (i) + (ii) Rs. 27,210/-
(iv) Fitment @ 15% (iii) Rs. 4,082/-
(v) Total Rs. 31,292/-
14. Revised pension/family pension as on Rs. 31,775/-
01.01.2017
15. Restoration date 01.01.2020
16. Family pension
(i) Enhanced pension (50% of basic pay) Rs. 31,775/-
(ii) Normal pension (30% of basic pay) Rs. 19,065/-
17. Original pension/family pension as on Rs. 31,775/-
01.01.2017
18. Additional pension
20% (80 to 85 years of age) on basic pension
30% (86 to 90 years of age) on basic pension
40% (91 to 95 years of age) on basic pension
50% (96 to 100 years of age) on basic pension
50% (above 100 years of age) on basic pension
19. After additional pension, pension has to Rs. 31,775/-
be raised
4.6. On disposal of representation with respect to method of
calculation of revised pension in tune with Circular,
2020 with effect from 01.01.2017 cases between
01.01.2012 to 31.02.2016; 01.01.2007 to 31.12.2011
and 01.01.1997 and 31.12.2006 has been
communicated to the Government of India in Ministry of
Shipping vide Letter No.889-- FA/F&P/01/2020 by
clarifying status of individual pensioner.
Rejoinder affidavit of petitioner:
5. Objecting to such calculation as depicted in Annexure-C
to the counter affidavit, the petitioner filed rejoinder
affidavit by illustrating individual cases, submitted that
"the opposite parties have calculated the Method-II which
is complete foreign to the procedure prescribed in
Annexure-6. If the calculation would have been done in
accordance with the procedure laid down then pension
would be more than shown at Annexure-C of counter".
Hearing:
6. Sri Manoja Kumar Khuntia, learned Advocate for the
petitioner assisted by Ms. Babita Kumari Pattanaik,
learned Advocate advanced arguments stemming on the
points formulated in "synopsis of events with written
note of submission on behalf of the petitioner" dated
23.07.2024.
6.1. Though the learned Deputy Solicitor General of India
entering appearance on 28.06.2021 represented the
opposite party No.1 on 16.01.2023 and 29.08.2023, he
has chosen not to appear on 01.03.2024 and
23.07.2024, when the matter was on board for hearing
on admission. On the date of hearing, i.e., 21.08.2024
none appeared to represent opposite party No.1-Union of
India. Therefore, it is construed that the opposite party
No.1 elects to abide by result of the present matter in its
absence.
6.2. Sri Satya Smruti Mohanty, learned Advocate represented
the opposite party Nos.2 and 3.
6.3. This matter was listed for admission on 21.08.2024 and
on consent of counsel for both sides, with the above
backdrop of factual narration on the basis of pleadings
of the respective parties, finally heard the matter as the
matter revolves round a narrow compass, i.e., whether
calculation as made with respect to retired officers prior
to 01.01.2017 by the Paradip Port Trust is in accordance
with the policy decision as reflected in Circular dated
05.02.2020 issued by the Ministry of Shipping (PHRD).
6.4. Heard Sri Manoja Kumar Khuntia assisted by Ms. Babita
Kumari Pattnaik, learned Advocates for the petitioner
and Sri Satya Smruti Mohanty learned Advocate
representing the opposite party Nos.2 and 3.
6.5. Upon hearing counsel for the parties, the matter stood
reserved for preparation and pronouncement of
judgment.
Rival contentions and submissions:
7. With the given background factual matrix, Sri Manoja
Kumar Khuntia, learned Advocate contended that if a
particular manner is provided to be adhered to by an
authority, the same has to be done in that particular
manner and any other methodology adopted other than
the manner indicated in the instructions cannot protect
the action of the authorities of Paradip Port Trust.
Laying emphasis on the statement made in paragraph
10 of the writ petition that "Due to non-fixation of
notional pay in the revised scale of pay corresponding to
the pay in pre-revised post at which the petitioner has
retired, higher scale of pay of Class-III employees retired
after 01.01.2017 are drawing more pension than that of
Class-II Officers who have retired prior to 01.01.2017", he
would argue that "the opposite party No.2 vide Letter
dated 12.04.2021 has intimated that the Paradip Port
Trust has revised the pension of retired employees in
accordance with order of the Ministry of Shipping dated
05.02.2020, though no revision of pension has been done
as per second method".
7.1. Advancing his argument further he would submit with
reference to paragraph 12 of the writ petition that the
calculation as made by the Paradip Port Trust with
respect to revision of pension in terms of Method-II is
erroneous and not in consonance with pay fixation as
suggested in Circular, 2020. Sri Manoja Kumar Khuntia,
learned counsel referred to revision of pension as
calculated by the petitioner, vide paragraph 14 of the
writ petition, which is depicted as follows:
01. Existing basic pay on the date of retirement Rs. 28,120/-
02. Revised scale of the post corresponding to the post in Rs. 40,000/-
pre-revised pay scale of the post at which he retired to
Rs.40,000/- Rs. 1,40,000/-
03. Revised scale of the post Rs. 40,000/-
04. Dearness relief to AICPI to 277 point is 119.8% Rs. 47,920/-
05. Fitment benefit @ 15% (3+4) Rs. 13,188/-
06. Total Rs. 1,01,108/-
07. Rounded off to Rs. 1,01,110/-
08. Pension 50% Rs. 50,560/-
7.2. Sri Manoj Kumar Khuntia, learned counsel, therefore,
urged that there has been erroneous computation of
quantum of consolidation of revised pension as the
percentage of 119.8 should have been applied to the
corresponding scale of pay of the post, but not on the
pre-revised scale of pay allowed in favour of the
petitioner at the time of retirement. The calculation
under a mistaken notion contrary to modality specified
in Method-II has landed the petitioner to knock the
doors of the writ Court for ventilation of grievance.
7.3. In essence, what is submitted by Sri Manoja Kumar
Khuntia, learned Advocate is this, "as per second method
for consolidation pension the pension/family pension of
employees who retired/died may be revised by notionally
fixing their pay in the revised scales of pay of the post
corresponding to the pay in the pre-revised pay scale of
the post at which they retired/died".
8. Per contra, Sri Satya Smruti Mohanty, learned counsel
appearing for Paradip Port Trust strenuously contended
that the writ petition is not maintainable for the reasons
that:
i. The petitioner is not properly represented. It is
personal grievance of Sri Shesadev Sahoo posed to
be espoused on behalf of the Association. It may
not possibly be permissible to calculate each one‟s
figures and ascertain which of the methods to be
beneficial or advantageous to each of the members
of the Paradip Port Trust Officer Pensioners
Association. He relied on the views expressed vide
Order dated 28.04.2022 by the Madras High Court
in Tamil Nadu Survey Officers Union (Central) Vrs.
The Government of Tamil Nadu, W.P. No.10465 of
2020 and W.M.P. Nos.16548 of 2020, 16414 of
2020 and 12723 of 2020; and Madhya Pradesh
High Court in Swakshtagrahi Sangh, Janpad
Panchayat Niwas Vrs. Union of India, 2022 SCC
OnLine MP 5420.
ii. As Ministry of Shipping Circular dated 05.02.2020
has made it unequivocal that pension is required to
be calculated in both the alternative methods and
the individual pensioner would get the higher
quantum of revised pension as computed taking
into facts and figures of each pensioner adhering to
the modalities specified in the two methods. The
petitioner made fervent prayer to adhere to said
Circular dated 05.02.2020. There appears no cause
of action to approach this Court inasmuch as the
Paradip Port Trust adopted the terms of said
Circular, 2020 in true letter and spirit. Refuting the
contention of petitioner that the Paradip Port Trust
is required to adopt the process of calculation as
suggested by the petitioner at paragraph 14 of the
writ petition, which cannot be gone into by this
Court in exercise of judicial review as tinkering
with the same would tantamount to touching the
policy decision of the Paradip Port Trust which is in
consonance with the Ministry of Shipping Circular,
2020. It sounds illogical on the part of the
petitioner to forcibly introduce his own method of
calculation that his basic pay of Rs.28,120/- is
required to be fixed at Rs.40,000/-. The contention
of the petitioner has no foundation as the basic pay
of retiree shall be taken on the basis of pay last
drawn at the time of retirement in view of ratio laid
down in State of Himachal Pradesh Vrs. Rajesh
Chander Sood, (2016) 10 SCC 77; Col. B.J. Akkara
(Retd.) Vrs. Government of India, (2006) 11 SCC 709
and Dr. Tapan Kumar Mohanty Vrs. Chairman,
Paradip Port Trust, 2007 SCC OnLine Ori 147.
8.1. Sri Satya Smruti Mohanty, learned Advocate referring to
paragraph 14 of the counter affidavit submitted that
Letter dated 20.10.2020 has been issued by the Paradip
Port Trust addressed to the Ministry of Shipping seeking
clarification as regards calculation of consolidated
revised pension of Class-I and Class-II Officers of pre-
01.01.2017 retirees, as given to understand, under the
aegis of Circular, 2020 in consideration of
representation. In the reply to rejoinder affidavit it is
asserted that since no reply has been received from the
opposite party No.1-Ministry of Ports, Shipping and
Waterways (PHRD) with respect to calculation of revised
pension under Method-I and Method-II, it is construed
that the modality adopted by the Paradip Port Trust does
not run counter to the terms specified in Circular, 2020.
Consideration of rival contentions and arguments:
9. Dealing with the maintainability of the present writ
petition filed by Sri Shesadev Sahoo, purportedly posed
to be General Secretary of the Paradip Port Trust Officer
Pensioners Association, Bhubaneswar, it appears the
petitioner has sought to espouse the cause of members
of said Association. It is, therefore, necessary to scrutiny
his status with reference to objection of the counsel for
the opposite parties.
9.1. Perusal of record does not reveal that the Association
has ever authorised Sri Shesadev Sahoo to represent
members-pensioners. No reference to any resolution
being passed by the Paradip Port Trust Officer
Pensioners Association, Bhubaneswar is made nor does
the writ petition contains any document in this regard.
9.2. Apt here to have reference to the description of the
petitioner as made in the cause title of the writ petition,
which stands as follows:
"Paradip Port Trust Officers Pensioners Association,
Bhubaneswar, represented through its General
Secretary, Sheshadev Sahoo, aged about 72 years,
Son of late Udayanath Sahoo, At: Mahavinayak Puram,
Plot No.BD/24, P.O.: KIIT, Bhubaneswar, District:
Khurda."
9.3. In the affidavit appended to the writ petition, there is no
affirmation as to whether Sri Shesadev Sahoo has filed
the case being authorised by the Paradip Port Trust
Officer Pensioners Association, Bhubaneswar nor is
there any whisper about existence of resolution to this
effect depicting the members of the Association
authorising him to filed writ petition on their behalf. The
affidavit as appended to the writ petition runs thus:
"I, Shesadev sahoo, aged about 72 years, S/o. Late Uday
Nath Sahoo, Plot No.BD/24, At: Mahabinayak Puram,
P.O.: KIIT, Bhubaneswar, District: Khurda, do here by
solemnly affirm and state as follows:
1. That I am the petitioner in this case.
2. That the facts stated above are true to the
best of my knowledge and belief."
9.4. At paragraph 2 of the writ petition, the petitioner claims
to be "a citizen of India". This added more confusion
than to clarify the position whether Sri Shesadev Sahoo
has filed the writ petition in his individual capacity as
citizen or the Paradip Port Trust Officer Pensioners
Association, Bhubaneswar has approached this Court as
independent body.
9.5. At paragraph 3 of the writ petition, Sri Shesadev Sahoo
has asserted as follows:
"The petitioner is now working as a General Secretary of
the Association seeks to challenge the arbitrary action of
the opposite parties in not extending the benefit of the
revision of pension as per the second method in
accordance with Notification (sic. Circular) dated
05.02.2020 issued by the Government of India in the
Ministry of Shipping."
9.6. From the above it transpires that there is no clarity as to
whether Sri Shesadev Sahoo has sworn to said affidavit
in the capacity of General Secretary of the Paradip Port
Trust Officer Pensioners Association, Bhubaneswar.
9.7. Therefore, this Court is of the view that the writ petition
is liable to be dismissed being the petitioner not
represented appropriately.
9.8. No satisfactory reply could be proffered by the learned
counsel for the petitioner-Shesadev Sahoo, who executed
Vakalatnama in his individual capacity, though the
description part of the Vakalatnama reflected he was the
General Secretary of the Paradip Port Trust Officer
Pensioners Association, but it does not disclose that Sri
the General Secretary has represented the Paradip Port
Trust Officer Pensioners Association, Bhubaneswar
Association.
9.9. To countenance his submission that the Paradip Port
Trust Officer Pensioners Association without pleading
the compelling circumstances to prefer the writ
application on behalf of members, Sri Satya Smruti
Mohanty, learned counsel for the Paradip Port Trust has
taken aid of Tamil Nadu Survey Officers Union (Central)
Vrs. The Government of Tamil Nadu, W.P. No.10465 of
2020 and W.M.P. Nos.16548 of 2020, 16414 of 2020 and
12723 of 2020, disposed of by Order dated 28.04.2022,
wherein the Madras High Court has been pleased to
make the following observation:
"8. The primordial contention of the petitioner
Association is that without appreciating the limited
scope of powers of the Village Administrative Officer,
the Government of Tamil Nadu amended the Tamil
Nadu Survey and Boundaries Act under Section 13
including the Village Administrative Officer as a part
of G.O.Ms.No.173, Revenue and Disaster
Management Department dated 26.03.2020 under
Section 13(h) of the amendment to Chain Survey and
Land Records Manual and such exercise of power to
modify including the Village Administrative Officer is
wholly without authority and the Act does not permit
involving of the Village Administrative Officers in the
process of surveying. According to the
respondents, the writ petition itself is not
maintainable, as it relates to service matter
and the petitioner Association has no locus
standi to challenge the impugned Government
Order and further added that the petitioner's service
conditions or their right for seniority / promotion will
not be affected vide the impugned Government Order
and it is also not correct to say that VAOs are not
technically qualified to do survey of lands. It is
argued by the learned Advocate General that the
minimum general educational qualifications for both
VAO and Firka Surveyor is a pass in SSLC and
therefore, there is no question of technical
qualification during recruitment and subsequent to
appointment, field Surveyors are provided with
Survey Training for 60 days and VAOs are provided
with Survey Training for 30 days.
***
12. A careful reading of all the above Judgments, makes
it clear that an Association either registered or
unregistered, can file a writ petition under
Article 226 of the Constitution of India on
behalf of its members taking the cause of its
members only if,
(a) the members themselves are unable to
approach the Court by reason of poverty,
disability or socially or economically in a
disadvantaged position, who are termed as
„Little Indians‟; and
(b) in case of public injury leading to public
interest litigation provided the Association has
some concern deeper than that of a way-farer
or a busy body.
13. In the judgment dated 28.03.2018 in W.A.No.1792
of 2017 [The Secretary to Government, Chennai-9
and Others Vrs. The Tamil Nadu Higher Secondary
Vocational Teachers Association], the Hon‟ble
Division Bench has observed that
„There is no question of entertaining the writ
petition at the instance of the Association in a
Service Matter and directing the Government to
grant the benefits to the members of the
Association. Nothing prevented the employees
who worked as Vocational Instructors to
approach the Court for appropriate relief.
Since it is a service matter, the concerned
employee has to approach the Court. There is
no locus standi for the Association to approach
the Court for the purpose of giving service
benefits to its members. ***‟
14. Admittedly, in the case on hand, the present
writ petition has been filed on behalf of its
members and the members of the petitioner's
Association are employees of the Survey &
Settlement Department and they cannot be
presumed to be poor, disabled or
disadvantaged to approach this Court
individually. In the light of the aforesaid decision of
the learned Single Judge of this Court in
Bharathidasan University Backward Class and
Most Backward Class Employees Association Vrs.
The State of Tamil Nadu, [MANU/TN/0647/2015],
and the Division Bench judgment cited supra, the
writ petition which pertains to service matter, is not
maintainable."
9.10. In Swakshtagrahi Sangh, Janpad Panchayat Niwas Vrs.
Union of India, 2022 SCC OnLine MP 5420 the Madhya
Pradesh High Court at Jabalpur observed thus:
"7. The Division Bench of this Court in the matter of
Prabhat Vrs. Barkatulla University, ILR 2011 MP
1692 has held that a writ petition for enforcement of
the rights of its members, as distinguished from the
rights of the Association as a body, can be filed by
the Association acting through its office bearers or
members, whether the Association is registered or
unregistered, incorporated or not, only when the
Association can satisfy the Court that if an adverse
decision is given in that petition, all the members of
that Association or "Body of Individuals" will be
bound by the decision. It has also been held that if
the same principle is not followed, immediately after
adverse decision, any other members of the said
Association may come before the Court in an
independent writ petition saying that he has not
been heard and he had not authorized such
Association or office bearer or member to represent
him in the litigation.
8. Therefore, to bind the members by the decision
in a litigation brought before the Court on
behalf of such members by any Association, it
is necessary that such Association must clearly
resolve that who authorized the Association to
file such litigation. The resolution should also
mention that the members will abide any decision
rendered in such litigation. In the present case, a
perusal of the resolution clearly shows that the same
does not fulfil the stipulated requirement. Hence, the
learned Single Judge has not committed any error
while rejecting the writ petition."
9.11. Significant it is to notice the observation to the question
"Whether an association of persons, registered or
unregistered can maintain a petition under Article 226 of
the Constitution for the enforcement of the rights of its
members as distinguished from the enforcement of its
own rights?" that was referred to Full Bench in Umesh
Chand Vinod Kumar Vrs. Krishi Utpadan Mandi Samiti,
Bharthana, 1983 SCC OnLine All 638 = AIR 1984 All 46:
"It appears to us that according to this decision a joint
writ petition would be validly maintainable if there is
legally subsisting jural relationship of association of
persons between them or if they have the same cause of
action. In substance, this decision applies the same
principle of procedure as was enunciated by the Full
Bench of our Court in Mall Singh‟s case (1968 All LJ 210),
namely, generally joinder of more than one person can be
permitted in a proceeding under Article 226 where the
right to relief arises out of the same act or transaction or
where the petitioners are jointly interested in the cause of
action and a common question of law or fact arises. In
other words, joinder of more than one person is
permissible when the cause of action is the same.
Such joinder may not be permissible if the cause of
action is similar.
***
The position appears to be that an association of persons,
registered or unregistered, can file a petition under Article
226 for enforcement of the rights of its members as
distinguished from the enforcement of its own rights--
(1) In case members of such an association are
themselves unable to approach the court by reason
of poverty, disability or socially oreconomically
disadvantaged position ("little Indians").
(2) In case of a public injury leading to public interest
litigation; provided the association has some concern
deeper than that of a wayfarer or a busybody, i.e., it
has a special interest in the subject matter.
(3) Where the rules or regulations of the association
specifically authorise it to take legal proceedings on
behalf of its members, so that any order passed by
the court in such proceedings will be binding on the
members. In other cases an association, whether
registered or unregistered, cannot maintain a
petition under Article 226 for the enforcement or
protection of the rights of its members, as
distinguished from the enforcement of its own
rights."
9.12. In the case of present nature, claim of each individual is
required to be considered independently, as the cause of
action is not "the same", but "similar". It is also not the
case of the petitioner in the writ application that the
members have difficulty in approaching this Court
individually. Nor it is shown by the petitioner that the
the rules or regulations/by-laws of the Paradip Port
Trust Officer Pensioners‟ Association specifically
authorise the General Secretary to take legal proceedings
on behalf of its members.
9.13. Treating this writ petition to have been filed in the
individual capacity, the Court now proceeds to examine
the issue raised by Sri Shesadev Sahoo.
10. By way of synopsis of events with written note of
submission dated 23.07.2024, the petitioner appears to
have confined its claim to the following effect:
"On a bare reading of the Notification (sic. Circular) on
dated 05.02.2020 it is crystal clear that as per the second
method for consolidation pension the pension/family
pension of employees who retired/died may be revised by
notionally fixing their pay in the revised scales of pay of
the post corresponding to the pay in the pre-revised pay
scale of the post at which they retired/died. But in the
case at hand while making the second method of
calculation their pay has not been fixed in the
revised scale of pay of the post corresponding to the
pay in the pre-revised pay scale but their pay scale
has been fixed in the pre-revised scale. Such
fixation is complete erroneous and not in
accordance with Notification (sic. Circular) dated
05.02.2020."
10.1. To this, the counsel for the opposite party Nos.2 and 3
submitted that conjoint reading of Circular, 2020 and
ratio of decisions rendered in State of Himachal Pradesh
Vrs. Rajesh Chander Sood, (2016) 10 SCC 77; Col. B.J.
Akkara (Retd.) Vrs. Government of India, (2006) 11 SCC
709 and Dr. Tapan Kumar Mohanty Vrs. Chairman,
Paradip Port Trust, 2007 SCC OnLine Ori 147 would
suggest that the calculation made by the Paradip Port
Trust is in conformity with law and accepting the
contention of the petitioner would not only lead to
anomalous position but also distort the quantum of
revised pension of each individual retiree.
11. From the submissions of the counsel for the respective
parties and documents available on record, it transpires
that the petitioner is aggrieved by the calculation of
consolidated revised pension under Method-II as
contemplated in the Circular, 2020. Quintessentially,
the calculation as suggested by Sri Manoja Kumar
Khuntia, learned Advocate is that while computing the
dearness relief, the percentage, i.e., 119.8%, should have
been applied on the amount of revised corresponding
scale of pay, i.e., Rs.40,000/-, but not on the basic
pension as fixed prior to revision. Sri Satya Smruti
Mohanty, learned Advocate on the contrary argued that
the calculation as suggested at paragraph 14 of the writ
petition is incongruous, rather the calculation of
consolidated revised pension finding place at Annexure-
C to the counter affidavit is in consonance with the
methodology sought to be adhered to in Circular, 2020.
Sri Satya Smruti Mohanty, learned counsel for the
Paradip Port Trust asserted that each individual case
has to be taken independently as the last pay drawn
varies and in terms of Circular, 2020, calculation is
required to be made under both the methods and the
pensioner is entitled to get higher of the two. To buttress
his argument that the computation as made by the
Paradip Port Trust on the basis of last pay drawn on the
date of retirement does not suffer infirmity, he placed
reliance on State of Himachal Pradesh Vrs. Rajesh
Chander Sood, (2016) 10 SCC 77; Col. B.J. Akkara (Retd.)
Vrs. Government of India, (2006) 11 SCC 709 and Dr.
Tapan Kumar Mohanty Vrs. Chairman, Paradip Port
Trust, 2007 SCC OnLine Ori 147.
11.1. In Rajendra Kumar Sood (supra) it has been observed as
follows:
"44. Based on the above judgment in U.P. Raghavendra
Acharya Vrs. State of Karnataka, (2006) 9 SCC 630,
it was pointed out that the right to draw revised
pension under the Karnataka Civil Service Rules
was held to be vested in the employees concerned,
from the date of revision of the pay scales. It was
pointed out that while calculating pensionary
benefits, it was imperative for the employer to
take into consideration the actual pay drawn
by the employees, at the time of their
retirement. Accordingly it was held that the action
of the State Government in granting revised pay
scales with retrospective effect (with effect from
01.01.1996), but extending the benefit of revised
pay for calculating pension, only with effect from
31.03.1998, was not sustainable in law. Inasmuch
as employees who had retired between 01.01.1996
and 31.03.1998 would be prejudicially affected. On
the same proposition, the learned counsel placed
reliance on D.S. Nakara Vrs. Union of India, (1983) 1
SCC 305 and invited our attention to the following
observations made therein:
„20. The antiquated notion of pension being a
bounty, a gratuitous payment depending upon
the sweet will or grace of the employer not
claimable as a right and, therefore, no right to
pension can be enforced through Court has
been swept under the carpet by the decision of
the Constitution Bench in Deokinandan Prasad
Vrs. State of Bihar, (1971) 2 SCC 330, wherein
this Court authoritatively ruled that pension is
a right and the payment of it does not depend
upon the discretion of the Government but is
governed by the rules and a government
servant coming within those rules is entitled to
claim pension. It was further held that the
grant of pension does not depend upon
anyone's discretion. It is only for the purpose of
quantifying the amount having regard to
service and other allied matters that it may be
necessary for the authority to pass an order to
that effect but the right to receive pension flows
to the officer not because of any such order but
by virtue of the rules. This view was reaffirmed
in State of Punjab Vrs. Iqbal Singh, (1976) 2
SCC 1.‟
***
72. In the above view of the matter, it is not
possible for us to accept that the rights of the
employees concerned under the 1999 Scheme,
can be stated to get vested, only on the date
when an employee concerned would attain the
age of superannuation, and satisfy all the
prerequisites for a claim towards pension. We
are also persuaded to accept the contention
advanced on behalf of the respondent employees
that the cause of action to raise a claim for
pension, would arise on the date when an
employee concerned actually retires from
service. Any employee governed by a pension
scheme, enrols to earn qualifying service,
immediately on his enrolment into the pensionable
service. Every such employee must be deemed to
have commenced to invest in his eventual claim
for pension, from the very day he enters
service, more so, in the present controversy, by
having expressly chosen to forego his rights, under
the Employees‟ Provident Funds Scheme, 1995.
***
75. Having given our thoughtful consideration to the
issue canvassed, and having gone through the
judgments cited, we are of the considered view that
this Court has repeatedly upheld a cut-off date, for
extending better and higher pensionary benefits,
based on the financial health of the employer. A cut-
off date can, therefore, legitimately be
prescribed for extending pensionary benefits, if
the funds available cannot assuage the
liability, to all the existing pensioners. We are,
therefore, satisfied to conclude that it is well within
the authority of the State Government, in exercise of
its administrative powers (which it exercised, by
issuing the impugned Repeal Notification dated
02.12.2004) to fix a cut-off date, for continuing the
right to receive pension in some, and depriving some
others of the same. This right was unquestionably
exercised by the State Government, as determined
by this Court, in R.R. Verma Vrs. Union of India,
(1980) 3 SCC 402, wherein this Court held that the
Government was vested with the inherent
power to review. And that the Government was
free to alter its earlier administrative decisions
and policy. Surely, this is what the State
Government has done in the present controversy.
But this Court in the abovementioned judgment,
placed a rider on the exercise of such power by the
Government. In that, the exercise of such power
should be in consonance with all legal and statutory
obligations.
76. It is equally true that the power of
administrative review can only be exercised,
for a good and valid justification. Such
justification besides being founded on
reasonable consideration, should also not be
violative of any legal right-- statutory or
constitutional, vested in the affected
employees. Insofar as the permissibility of the
administrative action taken in issuing the impugned
Repeal Notification dated 02.12.2004 is concerned,
whether the said power was exercised by the State
Government for good and valid reasons, and/or
whether the same violated any statutory or
constitutional right vested in the respondent
employees, shall be examined by us in the
succeeding paragraphs."
11.2. In Col. B.J. Akkara (Retd.) Vrs. Government of India,
(2006) 11 SCC 709, principles with regard to pension has
been expounded as follows:
"20. The principles relating to pension relevant to the
issue are well settled. They are:
(a) In regard to pensioners forming a class, computation
of pension cannot be by different formula thereby
applying an unequal treatment solely on the ground
that some retired earlier and some retired later. If
the retiree is eligible for pension at the time of
his retirement and the relevant pension scheme
is subsequently amended, he would become
eligible to get enhanced pension as per the new
formula of computation of pension from the
date when the amendment takes effect. In such
a situation, the additional benefit under the
amendment, made available to the same class of
pensioners cannot be denied to him on the ground
that he had retired prior to the date on which the
aforesaid additional benefit was conferred.
(b) But all retirees retiring with a particular rank
do not form a single class for all purposes.
Where the reckonable emoluments as on the
date of retirement (for the purpose of
computation of pension) are different in respect
of two groups of pensioners, who retired with
the same rank, the group getting lesser
pension cannot contend that their pension
should be identical with or equal to the
pension received by the group whose
reckonable emolument was higher. In other
words, pensioners who retire with the same rank
need not be given identical pension, where their
average reckonable emoluments at the time of their
retirement were different, in view of the difference in
pay, or in view of different pay scales being in force.
(c) When two sets of employees of the same rank retire
at different points of time, it is not discrimination if:
(i) when one set retired, there was no pension
scheme and when the other set retired, a
pension scheme was in force;
(ii) when one set retired, a voluntary retirement
scheme was in force and when the other set
retired, such a scheme was not in force; or
(iii) when one set retired, a PF scheme was
applicable and when the other set retired, a
pension scheme was in force.
One set cannot claim the benefit extended to
the other set on the ground that they are
similarly situated. Though they retired with
the same rank, they are not of the "same class"
or "homogeneous group". The employer can
validly fix a cut-off date for introducing any new
pension/retirement scheme or for discontinuance of
any existing scheme. What is discriminatory is
introduction of a benefit retrospectively (or
prospectively) fixing a cut-off date arbitrarily thereby
dividing a single homogeneous class of pensioners
into two groups and subjecting them to different
treatment.
(Vide D.S. Nakara Vrs. Union of India, (1983) 1 SCC
305, Krishena Kumar Vrs. Union of India, (1990) 4
SCC 207, Indian Ex-Services League Vrs. Union of
India, (1991) 2 SCC 104, V. Kasturi Vrs. Managing
Director, State Bank of India, (1998) 8 SCC 30 and
Union of India Vrs. Dr. Vijayapurapu Subbayamma,
(2000) 7 SCC 662).
***
22. The contention that NPA is taken into account in the
case of post-01.01.1996 retirees but not pre-1996
retirees is untenable. NPA is taken as part of "pay"
in the case of both pre-and post-01.01.1996 retirees.
NPA is not taken into account in the case of any
retiree for applying the stepping up benefit under the
circular dated 07.06.1999. It is a different matter
that post-01.01.1996 retirees do not require the
benefit under the circular dated 07.06.1999. As
already noticed, while calculating pension of
the pre-1996 retirees, NPA had already been
taken into account as part of "pay", and that
pension which was determined after taking
into account NPA, is found to be less than the
minimum guaranteed under the circular dated
07.06.1999, their pension is being increased to
the minimum provided in the circular dated
07.06.1999. NPA cannot again be added to the
minimum to step up the pension. If that is
done, it will amount to taking NPA into account
twice for purposes of pension, which is
impermissible. The contention of
discrimination between pre-01.01.1996 retirees
and post-01.01.1996 retirees is, therefore,
imaginary."
11.3. In Tapan Kumar Mohanty (Dr.) Vrs. Chairman, Paradeep
Port Trust, 2007 SCC OnLine Ori 147 = 104 (2007) CLT
302, it has been held by this Court that,
"It is, therefore, clear that in order to avoid such penalty
as prescribed under Regulation-6, the opposite parties
deputed the petitioner for a Specialist Course and after
completion of the said course in accordance with the
Regulation-115, promoted the petitioner to the post of
Specialist (O.H.) with effect from 04.12.1992, regularized
him in the said post of with effect from 29.04.1993 and
the petitioner retired from the said post with effect from
30.4.2006. Admittedly, the petitioner was being paid
salary at the scale of pay prescribed for a Specialist
(O.H.). Thus, the claim of the petitioner is to be
accepted as this Court finds that the petitioner will
be entitled to pension to be calculated on his last
drawn salary on the date of his retirement. The
decision, of the Port to pay pension @ Rs. 7231/- to the
petitioner under Annexure-1 to the Writ Petition cannot be
sustained and the said decision is accordingly quashed.
The opposite parties are directed to calculate the
entitlement of the petitioner with regard to his monthly
pension by taking his last drawn salary which is
admittedly in scale of pay of a Specialist (O.H.) and pay
the arrear pension from the date of his retirement, at such
rate to the petitioner, within a period of thirty days from
the date of communication of this order. The opposite
parties are further directed to pay current pension at such
rate as would be calculated, regularly, to the petitioner.
The writ petition is accordingly allowed, but in the
circumstances without costs."
11.4. It is, therefore, admitted by the opposite parties at
paragraph 9 of the reply to rejoinder affidavit filed on
18.09.2023 that,
"the opposite party No.2 in consonance with this judgment
has been giving pension to its employees based on the
last drawn salary and thus, the contention of the
petitioner that pension should be based on the lower limit
of the revised pay scale is a blatant abuse of the position
of the employee, i.e., senior or junior level".
11.5. Be that be, it is perceived from paragraph 11 of said
reply to rejoinder affidavit that reference has been made
to the Ministry of Shipping in consideration of
representation of the pensioner(s) vide Letter dated
20.10.2020 enclosing therewith samples of calculation of
revised pension of different employees seeking
clarification from the opposite party No.1 with respect to
correctness of calculation of consolidated revision of
pension, but there was no response.
11.6. Such being the position, the petitioner may, if so
advised, may pursue such recourse. Nevertheless, this
Court desists to make any comment thereon. The
impugned communication in Letter dated 12.04.2021
(Annexure-5) reflects that "Finance and Accounts
Department has since issued reply, vide their Letter
20.10.2020, mentioned that „as per the order of the
Ministry dated 05.02.2020, pension has to be calculated
in two methods and the pensioners will get the higher of
the two methods‟ and Paradip Port Trust has revised the
pension of the retired employees, accordingly". Said
communication is sought to be quashed by examining
correctness of method adopted for calculation to arrive
at the figures of revised pension in respect of each
individual members of the Paradip Port Trust Officer
Pensioners Association as specified in Method-I vis-a-vis
Method-II contained in Circular, 2020. This being factual
dispute, this Court is afraid to entertain the present writ
petition, for such a dispute is within the domain of the
opposite party No.1 for resolution.
11.7. It has been laid in Union of India Vrs. Dr. Aminul Islam
Khan, 2024 SCC OnLine Cal 8239 as follows:
"2. Union of India (U.O.I) has filed an appeal being APO
105 of 2021 being aggrieved by the impugned
judgment and order to the extent of revision of pay
and allowances of Class I and II officers and
bunching of increments. Dr. Shyamaprasad
Mukherjee Port Trust (SPMPT) has filed APO 64 of
2021 against the same impugned judgment and
order.
***
47. Gujarat Steel Tubes Ltd. Vrs. Gujarat Steel Tubes
Mazdoor Sabha, (1980) 2 SCC 593 has held that, a
writ court does not act as a Court of Appeal
while exercising jurisdiction under Article 226.
It has noted that, an appellate power interferes not
when the order appealed is not right but only when
it is clearly wrong. It has also noted that the
difference is real, though fine.
48. The Accountant General Vrs. Doraiswamy, (1981) 4
SCC 93 = AIR 1981 SC 783 has held that, unless a
statute conferring the power to make rules provide
for the making of rules with retrospective operation,
the rules made pursuant to that power can have
prospective operation only.
49. Dwelling on the scope of judicial review, Supreme
Court in Bajaj Hindustan Limited Vrs. Sir Shadi Lal
Enterprises Limited, (2011) 1 SCC 640 has held that,
judiciary can interfere with administrative
decision within narrow limits, such as, when
there is clear violation of the statute or a
constitutional provision, or there is
arbitrariness in the Wednesbury sense or where
the policy decision is clearly illegal. It has
observed that, economic and fiscal regulatory
measures are a field where judges should encroach
upon very warily as judges are not experts in these
matters.
50. Similarly, Satya Dev Bhagaur Vrs. State of
Rajasthan, (2022) 5 SCC 314 has held that, courts
should be slow in interfering in the policy
matters unless the policy is found to be
palpably discriminatory and arbitrary.
51. In the facts and circumstances of the present case,
pay revision once having been granted, is sought to
be taken away by a process which is not approved
in law."
11.8. The observation of the Madras High Court as reflected in
Union of India Vrs. Chennai Port & Dock Officer‟s
Association, while disposing of WA No.1642 of 2017, the
Madras High Court vide Judgment dated 08.04.2024,
that disputed questions of fact need not be gone into by
this Court.
11.9. In the present case as there is clear admission by the
Paradip Port Trust that the methodology adopted in
granting higher amount of revised pension in
consonance with Circular, 2020, which is seriously
disputed by the petitioner, this Court is not inclined to
show indulgence in the formulation. The prayer of the
petitioner in the writ petition that direction be issued "to
revise pension accrued under second method in favour of
Class-I and Class-II Officers in Paradip Port Trust retired
prior to 01.01.2017 in accordance with Notification (sic.
Circular) dated 05.02.2020", has been conceded by the
opposite parties by stating that the calculation of revised
pension has been made by adhering to both the methods
and "the beneficial to the pensioner has been granted".
Therefore, there being no authorisation or undertaking
by other members of the Paradip Port Trust Officer
Pensioners Association showing that they have
surrendered or waived their claim as suggested by
Shesadev Sahoo. In other words, there is no clear
disclosure by the members nor by a resolution of the
Paradip Port Officer Pensioners Association to show that
in the event calculation in terms of Method-I they would
waive even if it yields beneficial result in comparison to
the calculation made as per Method-II. This Court,
hence, refrains to go into such details. There being no
challenge to the Circular, 2020, reading down the same
by restricting the pensioners to be entitled to such
amount of pension as calculated under Method-II would
be to rewrite the policy of the Ministry of Port, Shipping
and Waterways which is clearly impermissible in
exercise of power under Article 226 of the Constitution of
India. If the restricted calculation as suggested by
learned counsel for the petitioner is accepted, inasmuch
as the petitioner has only laid challenge to the
communication dated 12.04.2021 specifying that the
higher of the amounts of pension calculated in two
methods, then it seems to be to negate the members who
would be benefited by higher of the amounts of revised
pension as computed under both the methods.
11.10. In the case of Union of India Vrs. VKC Footsteps
India Private Limited, (2022) 2 SCC 603, in the context of
the grievance against prescription of formulae to
compute input tax credit on the plea that Rule 89(5) of
the Goods and Services Tax Rules, 2017, goes beyond
the "provisions of the Act", when in the garb of fixing a
formula, it restricts the refund of input tax credit to
input goods by denying input tax credit of input services,
it has been held as follows:
"The above judicial precedents indicate that in the field of
taxation, this Court has only intervened to read down or
interpret a formula if the formula leads to absurd results
or is unworkable. In the present case however, the
formula is not ambiguous in nature or unworkable,
nor is it opposed to the intent of the legislature in
granting limited refund on accumulation of
unutilised ITC. It is merely the case that the
practical effect of the formula might result in
certain inequities. The reading down of the formula
as proposed by Mr. Natarajan and Mr. Sridharan by
prescribing an order of utilisation would take this
Court down the path of recrafting the formula and
walk into the shoes of the executive or the
legislature, which is impermissible. Accordingly, we
shall refrain from replacing the wisdom of the legislature
or its delegate with our own in such a case. However,
given the anomalies pointed out by the assessees, we
strongly urge the GST Council to reconsider the formula
and take a policy decision regarding the same."
11.11. As it seems the petitioner has beseeched to hold
that the method of computation of pension is erroneous.
The alternative method of computation of revised
pension in terms of Circular, 2020, is a policy of the
Ministry of Port, Shipping and Waterways. The following
observation of the Hon‟ble Supreme Court of India in
T.N. Education Department Ministerial and General
Subordinate Services Association Vrs. State of T.N., (1980)
3 SCC 97 deserves to be quoted:
"8. *** Counsel for the respondents explain that when
equated groups from different sources are brought
together quota-rota expedients are practical devices
familiar in the field. Bearing in mind the strength of
the District Board staff to be inducted, the ratio is
rational. Maybe, a better formula could be
evolved, but the court cannot substitute its
wisdom for Government's, save to see that
unreasonable perversity, mala fide
manipulation, indefensible arbitrariness and
like infirmities do not defile the equation for
integration. We decline to demolish the order on
this ground. Curial therapeutics can heal only the
pathology of unconstitutionality, not every injury.
9. The more serious charge is that length of service for
fixing seniority has inflicted manifest injustice on the
"A" wing i.e. regular Government staff, being born in
arbitrariness and fed on mala fides. It is fair to state
the generalities and then proceed to particularities.
Here we must realise that all the schools having
been taken over by the State directly the personnel
had to be woven into the basic fabric. Some
relevant formula had to be furnished for this
purpose so that the homogenisation did not
unfairly injure one group or the other. In 1970
government chose not to integrate but to keep apart.
Later, this policy was given up. We cannot, as
court, quarrel if administrative policy is
revised. The wisdom of yesterday may
obsolesce into the folly of today, even as the
science of old may sour into the superstition
now, and vice versa. Nor can we predicate mala
fides or ulterior motive merely because
Assembly interpellations have ignited
rethinking or, as hinted by Counsel, that the
Education Minister's sensitivity is due to his
having been once District Board teacher.
Democratic processes -- both these are part of such
process -- are not anathema to judges and we
cannot knock down the order because Government
have responded to the Question Hour or re-examined
the decision at the instance of a sensitive minister.
***
16. Aware of our jurisdictional limitations we do
not agree that the court can analyse such
minutiae to fault the policy and quash the
order of government i.e GO No. 1968. For
argument‟s sake, let us assume that there is a volte
face on the part of the Government in shifting its
stand in the matter of computation of seniority with
reference to length of service. Surely, policy is not
static but is dynamic and what weighed with the
Government when panchayat institutions were
amalgamated with the District Board institutions
might have been given up in the light of experience
or changed circumstances. What was regarded as
administratively impractical might, on later thought
and activist reconsideration, turn out to be feasible
and fair. The court cannot strike down a GO, or
a policy merely because there is a variation or
contradiction. Life is sometimes contradiction
and even consistency is not always a virtue.
What is important is to know whether mala
fides vitiates or irrational and extraneous
factor fouls. It is impossible to maintain that the
length of service as District Board employees is
irrational as a criterion. Let us assume for
argument‟s sake that the mode of selection by the
District Boards is not as good as by the Public
Service Commission. Even so it is difficult to dislodge
the Government‟s position that the teachers with
mostly the same qualifications, discharging similar
functions and training similar students for similar
examinations cannot be equated from a pragmatic
angle without being condemned as guilty of
arbitrariness.
17. Sri Govind Swaminathan drove home the point that
in some cases even a few hundred "A" wing
members have been passed over by someone in the
"B" wing far junior to them. Once the principle is
found to be rational the fact that a few freak
instances of hardship may arise on either side
cannot be a ground to invalidate the order or
the policy. Every cause claims a martyr and
however unhappy we be to see the seniors of
yesterday becoming the juniors of today, this is
an area where, absent arbitrariness and
irrationality, the court has to adopt a hands-
off policy.
18. The "B" wing members complain that they have
really suffered by being denied what is due to them
on account of length of service all these years after
1970. The boot is in the other leg, they lament.
Probably, the injustice of the past, when suddenly
set right by the equity of the present, puts on a
molested mien and the beneficiaries of the status
quo cry for help against injustice to them. The law,
as a instrument of social justice, takes a longer look
to neutralise the sins of history. Be that as it may,
judicial power cannot rush in where even
administrative feet fear to tread."
11.12. So far as exercise of power under Article 226 of the
Constitution of India against the administrative
decisions vis-à-vis decision making process and/or
policy decisions, it is apposite to have regard to the
following observation of the Hon‟ble Supreme Court in
the case of Sarvepalli Ramaiah Vrs. District Collector,
Chittoor District, (2019) 5 SCR 372:
"23. Administrative decisions are subject to judicial
review under Article 226 of the Constitution,
only on grounds of perversity, patent illegality,
irrationality, want of power to take the
decision and procedural irregularity. Except on
these grounds administrative decisions are not
interfered with, in exercise of the extra ordinary
power of judicial review.
24. In this case, the impugned decision, taken pursuant
to orders of Court, was based on some materials. It
cannot be said to be perverse, to warrant
interference in exercise of the High Court‟s extra
ordinary power of judicial review. A decision is
vitiated by irrationality if the decision is so
outrageous, that it is in defiance of all logic;
when no person acting reasonably could
possibly have taken the decision, having
regard to the materials on record. The decision
in this case is not irrational.
25. A decision may sometimes be set aside and
quashed under Article 226 on the ground of
illegality. This is when there is an apparent error of
law on the face of the decision, which goes to the
root of the decision and/or in other words an
apparent error, but for which the decision would
have been otherwise.
26. Judicial review under Article 226 is directed,
not against the decision, but the decision
making process. Of course, a patent illegality
and/or error apparent on the face of the
decision, which goes to the root of the decision,
may vitiate the decision making process. In this
case there is no such patent illegality or apparent
error. In exercise of power under Article 226, the
Court does not sit in appeal over the decision
impugned, nor does it adjudicate hotly disputed
questions of fact."
11.13. In policy matters, the position of judicial review can
be summarized as one of non-intervention. This means
that policy decisions are almost never subject to judicial
review3. Under the certain circumstances, the
Government has the authority to make reasonable
changes and policy decisions that may become
necessary or required. A court cannot overturn a policy
decision simply because it believes that a different
conclusion would have been more fair, wise, scientific, or
rational4. A court of law should not be able to interfere
with a Government decision if it is not motivated by
malice or the result of an arbitrary or whimsical act5.
Thus, the formulation or revision of pension policies falls
within the discretion of the competent authority and
cannot be interfered with, unless in unequivocal terms it
is demonstrated to be violative of constitutional
principles.
11.14. In the case at hand there is no scope for computing
each individual case of pensioner and no material is
3 State of Gujarat Vrs. Arvind Kumar Tewari, (2012) 9 SCC 545.
4 Netai Bag Vrs. State of W.B., (2000) 8 SCC 262.
5 Raj Shikshan Prasarak Mandal Vrs State of Maharashtra, (2001) 10 SCC 751.
available on record to demonstrate that members in the
Paradip Port Trust Officer Pensioners Association have
authorised Sri Shesadev Sahoo claiming to be the
General Secretary of said Association, to confine
computation of revised pension to Method-II specified in
Circular, 2020 only. Moreover, it may also be taken note
of that the veracity of calculation as made by the Paradip
Port Trust could be tested in the event the opposite party
No.1 would have replied with respect to clarification
sought for from the Ministry of Port, Shipping and
Waterways vide Letter dated 20.10.2020 (Annexure-D to
the counter affidavit) issued by the opposite party No.3.
11.15. The entitlement of pensioners being decided in
terms of paragraph 3.2 of Circular, 2020 to the effect
that "The higher of the two formulations i.e. the revised
pension/family pension as per first method or the revised
pension/family pension as worked out in accordance
second method above, shall be granted to pre-2017
pensioners as revised pension/family pension w.e.f.
01.01.2017" sounds logical and rational.
11.16. It may be pertinent to quote the following
observation of the Hon‟ble Supreme Court of India in
Beed District Central Coop. Bank Ltd. Vrs. State of
Maharashtra, (2006) 8 SCC 514:
"13. We, however, are of the opinion that the said
doctrine cannot be said to have any application
whatsoever in the instant case. Undoubtedly, the
Payment of Gratuity Act is a beneficial statute.
When two views are possible, having regard to
the purpose the Act seeks to achieve being a
social welfare legislation, it may be construed
in favour of the workman. However, it is also trite
that only because a statute is beneficent in nature,
the same would not mean that it should be
construed in favour of the workmen only although
they are not entitled to benefits thereof. (See
Regional Director, ESI Corpn. Vrs. Ramanuja Match
Industries, (1985) 1 SCC 218).
***
614. Applying the "golden rule of interpretation of
statute", to us it appears that the question should be
considered from the point of view of the nature of the
scheme as also the fact that the parties agreed to
the terms thereof. When better terms are offered,
a workman takes it as a part of the package.
He may volunteer therefor, he may not. Sub-
section (5) of Section 4 of the 1972 Act provides
for a right in favour of the workman. Such a
right may be exercised by the workman
concerned. He need not necessarily do it. It is
the right of individual workman and not all
the workmen. When the expression "terms" has
been used, ordinarily it must mean "all the terms of
the contract". While interpreting even a beneficent
6 [Para 14 corrected vide Official Corrigendum No. F.3/ED.B.J./92/2006 dated
23.12.2006.]
statute, like, the Payment of Gratuity Act, we are of
the opinion that either contract has to be given effect
to or the statute. The provisions of the Act envisage
for one scheme. It could not be segregated. Sub-
section (5) of Section 4 of the 1972 Act does not
contemplate that the workman would be at liberty to
opt for better terms of the contract, while keeping the
option open in respect of a part of the statute. While
reserving his right to opt for the beneficent provisions
of the statute or the agreement, he has to opt for
either of them and not the best of the terms of the
statute as well as those of the contract. He cannot
have both. If such an interpretation is given, the
spirit of the Act shall be lost. ***
15. It is significant that in the event the amount of
gratuity is calculated at the rate of 26 days' salary
for every completed year of service, vis-à-vis, 15
days' salary therefor, the tenure of an employee
similarly situate will vary. Whereas in the former
case an employee may receive the entire amount of
gratuity while working for a lesser period, in the
latter case an employee drawing the same salary
will have to work for a longer period.
16. We are, therefore, of the opinion that the workman
cannot opt for both the terms. Such a construction
would defeat the purpose for which sub-section (5) of
Section 4 has been enacted. For the reasons
aforementioned, the impugned judgment cannot be
sustained, which is set aside accordingly. The
appeal is allowed. No costs."
11.17. Keeping in view conspectus of aforesaid
perspective, since calculation of revised pension would
depend upon the last pay drawn of the pensioner and in
that sense whether Method-I or Method-II would be
beneficial to the pensioner is dependent upon the choice
of each individual. For the communication dated
12.04.2021 specifies that "Finance & Accounts
Department has since issued reply, vide their letter
20.10.2020, mentioned that "as per the order of the
Ministry dated 05.02.2020, pension has to be calculated
in two methods and the pensioners will get the higher of
the two methods" and Paradip Port Trust has revised the
pension of the retired employees, accordingly", acceding
to the prayer of the petitioner by directing "opposite
parties to revise pension accrued under 2nd Method in
favour of Class-I and Class-II Officers in Paradip Port
Trust retired prior to 01.01.2017 in accordance with
Notification dated 05.02.2020" would be to deprive those
retirees of the benefit in case the calculation of revised
pension as per Method-I enures to their advantage. Such
an omnibus prayer would be detrimental to those Class-I
and Class-II retirees as a whole. Therefore, the writ
petition as stated to have been filed by Paradip Port
Trust Officer Pensioners Association is misconceived.
11.18. Under the above premises, it is open for the
aggrieved petitioner to pursue his cause before
appropriate authority justifying the error in application
of method and calculation thereof. This Court cannot go
into such minute details of each item with arithmetical
precision by examining whether the modality adopted by
the opposite party No.2 is just, appropriate and correct.
Conclusion:
12. In the light of discussions made in the foregoing
paragraphs and reasons ascribed thereto, it is, thus,
held that the writ petition as laid is not entertainable
and, therefore, this Court is not inclined to interfere with
the communication dated 12.04.2021 (Annexure-5),
which is claimed by the opposite parties to be in
consonance with the Circular dated 05.02.2020 of the
Ministry of Shipping.
13. The writ petition, being devoid of merit, deserves to be
dismissed, and this Court does so. In the result, the writ
petition stands dismissed with no order as to costs.
(MURAHARI SRI RAMAN)
JUDGE
Designation: JUNIOR STENOGRAPHER
High Court of Orissa, Cuttack
The 18th November, 2024//LAXMIKANT/SUCHITRA
