Telangana High Court

K.L.Narasimham vs The Union Of India on 22 October, 2021

Bench: Satish Chandra Sharma, Ujjal Bhuyan

  THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                                       AND
             THE HON'BLE SRI JUSTICE UJJAL BHUYAN
                   Writ Petition No.20431 of 2021


ORDER:   (Per the Hon'ble the Chief Justice Satish Chandra Sharma)


      The petitioner before this court, aged about 93 years, has

filed the present writ petition being aggrieved by the order dated

15.11.2019    passed      by     the   Central     Administrative      Tribunal,

Hyderabad Bench, Hyderabad in O.A.No.21/1138/2018.

      The facts of the case reveal that the petitioner, who is a

pensioner, has filed the Original Application before the Central

Administrative Tribunal being aggrieved by the order dated

07.02.2018 issued by the Office of the Chief Pay & Accounts

Officer in Andaman & Nicobar Administration fixing his pay

notionally at Rs.58,600/- for the purposes of determining the basic

pension payable to him with effect from 01.01.2016 and the

consequential PPO dated 04/15.05.2018 fixing his basic pension

at Rs.29,300/- with effect from 01.01.2016.

      The undisputed facts of the case reveal that the petitioner

joined service as Upper Division Clerk in 1952. He was promoted

as Accounts Officer in the Indian Audit and Accounts Department

on 03.11.1972. He was sent on deputation to the Directorate of

Education, Andaman & Nicobar Islands Administration, Port Blair,

in 1981 and continued up to 31.12.1982.                         He has finally

superannuated on 30.07.1985.               The petitioner was entitled for

pension, keeping in view the CCS (Pension) Rules, 1972, at the rate

of Rs.12,600/- per month with effect from 01.01.2006 and

Rs.33,850/-    with     effect    from    01.01.2016,        whereas   he   was

authorised and paid Rs.11,300/- with effect from 01.01.2006 and
                                  2




Rs.29,300/- with effect from 01.01.2016. He was also entitled for

additional pension at the rate of 20% from July, 2007 and 40%

from July, 2017.   The petitioner's grievance before the Tribunal

was that the respondent/Union of India was under an obligation to

revise his pension, keeping in view the revision of pay scales and

Office Memorandum dated 10.02.1998 issued by the Department

of Pension read with Corrigendum dated 20.04.1998 and Office

Memorandums dated 13.05.1998 and 17.12.1998, which were

issued in respect of revision of pension of pre-01.01.1986

pensioners. The petitioner was also entitled for re-fixation of

pension. However, no re-fixation was done keeping in view the

revision of pay scales. The revision was to be done keeping in view

the Office Memorandum dated 12.05.2017. He was paid a

consolidated pension of Rs.11,300/- with effect from 01.01.2006.

The petitioner was also entitled for corresponding pay scale of

Rs.10,000/- -15,200 (V CPC) in the VI CPC, as he was in PB-3 i.e

Rs.15,600/- - 39,100/- with Grade Pay of Rs.6,600/-. The

minimum of pay with effect from 01.01.2006 was Rs.25,200/-.

The minimum pension at 50% of Rs.25,200/- was Rs.12,600/-,

whereas he was authorised and paid a basic pension of

Rs.11,300/-, a short fall of Rs.1,300/- in basic pension with effect

from 01.01.2006 to 31.12.2015. The petitioner was also entitled

for arrears of pension with DR from time to time and additional

pension of Rs.2,89,518/-. Similarly, in respect of VII CPC, the

petitioner was entitled for notional pay of Rs.67,700/- as on

01.01.2016 and his pension was to be regularised at Rs.33,850/-

with additional pension and DR from time to time, whereas he was

authorised basic pension of Rs.29,300/- with a shortfall of

Rs.4,550/- in the basic pension with effect from 01.01.2016 as per

the PPO dated 04/14-05-2018. The petitioner was also entitled for

Rs.2,39,004/- towards arrears of pension payable from 01.01.2016

to 31.12.2018, whereas he was denied the same.

A detailed and exhaustive reply was filed before the Tribunal

and the Tribunal has allowed the Original Application granting

revision of pension with effect from 0.01.2006. However, payment

of arrears has been confined to three years from the date of filing of

the Original Application. The operative portion of the order, that is

contained in para V, reads as under:-

"V. Hence, in view of the above, the respondents are directed to consider as under:

(i) to revise the pension of the applicant w.e.f.01.01.2006 as per the accepted recommendations of the VI & VII Central Pay Commissions and the OMs referred to by taking into consideration the last pay drawn by the applicant as Director of Accounts & Budget, Andaman & Nicobar Administration.

(ii) Respondents to work out and re-fix the pension as ordered at (i) above and arrears of pension be confined to 3 years from the date of filing of the OA.

(iii) Time calendared to implement the judgment is five months from the date of receipt of the order.

(iv) With the above directions, OA is allowed, with no order as to costs."

The respondent/Union of India has not preferred any writ

petition against the order passed by the Central Administrative

Tribunal. It is only the petitioner, who is aggrieved by the order

passed by the Central Administrative Tribunal, as arrears of

pension has been confined only to three years from the date of

filing of the Original Application. The Central Administrative

Tribunal has restricted the payment of arrears to three years from

the date of filing of the application, keeping in view the judgment

delivered by the Hon'ble Supreme Court in the case of Union of

India and others vs. Tarsem Singh (Civil Appeal No.5151-5152

of 2008 decided on 13.08.2008).

This Court has carefully gone through the aforesaid

judgment. The Hon'ble Supreme Court was dealing with a case of

an Army personnel, who was claiming disability pension. It was

not a case of revision of pension at all. The army official who was

invalidated out of Army service, under medical category,

approached the High Court in 1999 claiming disability pension and

his petition was allowed by the High Court on 06.12.2000 directing

payment of disability pension and in those circumstances, the

payment of arrears was restricted for a period of three years by the

Hon'ble Supreme Court. The judgment relied upon by the Hon'ble

Supreme Court is distinguishable on facts.

In the case of M.R. Gupta vs. Union of India and others1,

the Hon'ble Supreme Court held that erroneous pay fixation is a

continuing wrong and is a recurring cause of action and therefore,

in the light of the judgment delivered by the Hon'ble Supreme

Court in the said case, by no stretch of imagination, the payment

of arrears could have been restricted to three years. In the same

judgment, the Hon'ble Supreme Court, in para 5, has held as

under:-

"The Tribunal misdirected itself when it treated the appellant's claim as 'one time action' meaning thereby that it was not a continuing wrong based on a recurring cause of action. The claim to be paid the correct salary computed on the basis of proper pay fixation, is a right which subsists during the entire tenure of service and can be

1995 (5) SCC 628

exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules. This right of a Government servant to be paid the correct salary throughout his tenure according to computation made in accordance with rules, is akin to the right of redemption which is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists, unless the equity of redemption is extinguished. It is settled that the right of redemption is of this kind. (See Thota China Subba Rao and Others vs. Mattapalli Raju and Others, AIR 1950 Federal Court 1)."

In the light of the aforesaid, as the petitioner has received

less pension every month, on account of lapses on the part of the

Union of India, he cannot be deprived of arrears for which he was

lawfully entitled to.

The Hon'ble Supreme Court in the case of D.S.Nakara and

others vs. Union of India2 held in para 20 as under:-

"The antiquated notion of pension being a bounty a gratituous 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 Deoki Nandan Prasad v. State of Bihar & Ors. (1) 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 any one'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 & Anr. v. Iqbal Singh (AIR 1976 SC 667)."

AIR 1983 SUPREME COURT 130

The petitioner has earned pension, on account of his past

service rendered with Union of India and the Union of India was

under obligation to revise pension from time to time. The

petitioner cannot be penalised for the fault of the Union of India

and therefore, to the extent the payment of arrears has been

restricted for the period of three years, the order of the Central

Administrative Tribunal deserves to be quashed and is accordingly

quashed.

The respondent/Union of India is directed to pay full arrears

of pension to the petitioner, keeping in view the order passed by

the Central Administrative Tribunal, within a period three months