Prof. M. Haragopal Rao vs Govt.Of ...
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         HON'BLE SRI JUSTICE J SREENIVAS RAO

       WRIT PETITION(TR) No.1450 and 1451 of 2017

ORDER:

These writ petitions are filed for the following reliefs:

WP(TR) No.1450 of 2017(O.A.No.183 of 2014)

"to set aside the impugned memo Rc.No.Ser.11/109/2005 dated 06.07.2013 of R2 as illegal, arbitrary,malafide and against the basic principles of natural justice and consequently toset aside the proceedings of R3 Rc.No.2104/B1/2008 dated 07.09.2009 and to modify items 7 and 8 of the proceedings Rc.No.Ser.11/109/2004 dated 10.07.2007 of R2 read with Govt Memo No.719/IE1/200412 dated 06.01.2007 accordingly and direct the Respondents to allow notional increments for the period 10.10.1996 to 29.07.2001 the period during which the applicant was under foreign deputation for all pensionary and consequential benefits and treat the period 30.07.2001 to 05.08.2002 as compulsory wait.

WP(TR) No.1451 of 2017(O.A.No.184 of 2014)

to call for the records relating to the sanction of pension and pensionary benefits and judge the inordinate delay of 7 years caused to the applicant and hold the action of the Respondents 2 and 3 as illegal arbitrary unjust and violative of Articles 21 and 31 of the Constitution of India and being opposed to the various judgements of the Honble Supreme Court and the Honble High Court of A P in view of the inordinate delay caused in payment of arrears arising due to pay fixation in RPS 2005 Retirement benefits i,e pension gratuity and difference of commutation value of pension CVP and grant interest from the date of retirement 31082006 till the date of realization at 18 per annum and impose exemplary costs for subjecting the applicant to unnecessary court proceedings

2. Initially the petitioner filed O.A.Nos.183 of 2014 and 184 of

2014 before Andhra Pradesh Administrative Tribunal at

Hyderabad('APAT' for brevity). By virtue of abolition of APAT these

two cases were transferred to this Court and renumbered as

W.P(TR) No.1450 and 1451 of 2017.

3. Brief facts of the case:

3.1 Petitioner was initially appointed as Junior Lecturer on

07.09.1971 and subsequently he was promoted as principal in the

year 1986 and he retired as a principal from services on attaining

the age of superannuation while working on deputation in O/o

Secretary, Board of Intermediate Education at Hyderabad as

Professor of ERTW. Thereafter, the petitioner submitted

application for grant of pension. On 04.08.2007, respondent No.2

received the said pension proposal of the petitioner, after due

verification issued RC.Ser.I-AI/1175/2007, dated 28.08.2007

wherein it is mentioned that the petitioner has not furnished the

signatures of the witness on nomination forms and other

irregularities and the said pension documents were returned to

the petitioner directing the concerned to rectify the mistakes and

furnish the proposal in full shape. The petitioner resubmitted the

application after complying the objections. Respondent No.2

forwarded the pension proposals to the Accountant General of

A.P., Hyderabad vide CIE's letter dated 23.10.2007 for sanction of

pension. When the said proposals are pending, the petitioner filed

O.A.No.4312 of 2009 before APAT. On 16.03.2009, the APAT has

granted interim order directing the respondents to fix the

provisional pension and pay the same with arrears and also pay

the retirement benefits within a period of eight(8) weeks. On

21.04.2009, respondent No.2 issued Proceedings RC.No.SER.I.A-

I/1175/2007 sanctioning anticipatory pension duly taking the pay

of Rs.7,900/-(in the scale of Rs.7,900/- 15,475/-) memo of RPS

1998 and communicated the same to the petitioner and an

amount of Rs.7,71,622/- RPS 2005 arrears was also sanctioned to

the petitioner.

3.2. The petitioner in his representation dated 30.04.2010,

submitted his pension proposals in quadruplicate duly attested by

the Gazetted officer to the Regional Joint Director of Intermediate

Education, Warangal. On 01.07.2010, APAT disposed the

O.A.No.4312 of 2009 order directing the respondents to pay the

pension according to law. When the respondents failed to

implement the orders of the APAT, the petitioner filed C.A.No.1451

of 2011 and the same was disposed directing the respondents to

refix the pay correctly as per the pension Rules. Thereafter, the

petitioner filed Review M.A.No.2274 of 2010 in O.A.No.4312 of

2009 and the APAT passed order on 26.10.2010 giving liberty to

the petitioner to address a letter/representation to the Director of

Intermediate Education ventilating his grievance for taking

necessary action on the representation of the petitioner and

directed the Director of School Education to pass appropriate

orders as per rules.

3.3 Pursuant to the orders dated 26.10.2010, CIE issued

Memo.Rc.No.Ser.I-1/109/2005, dated 06.07.2013 stating that the

petitioner's request to revise his pay is not feasible as per existing

rules. Aggrieved by the same, the petitioner filed WP(TR) No.1450

of 2017 and the petitioner filed W.P(TR).No.1451 of 2017 for

granting interest from the date of his retirement i.e.,31.08.2006 till

the date of realization @ 18% per annum for inordinate delay

caused in sanction of pension and pensionary benefits.

3.4. Respondent No.2 filed common counter on behalf of the

respondents denying the claim made by the petitioner interalia

contending that the respondents have settled the pension and

pensionary benefits to the petitioner as per his entitlement, the

delay was caused due to non-submission of pension documents by

the petitioner as per the procedure and also not submitting the

thumb impression/signatures of the witnesses and respondent

No.2 returned the pension documents submitted by the petitioner

informing him to rectify the mistakes mentioned therein.

Pursuant to the same, the petitioner resubmitted the application

immediately and respondent No.2 forwarded the pension

documents to the Accountant General Office for sanctioning of

pension. The concerned authorities have sanctioned the pension

and pensionary benefits to the petitioner. The delay was caused

only on the part of petitioner as well as on the ground of

administrative action but neither wilful nor wanted. The petitioner

after receiving the amounts, filed the present writ petitions and

after accepting and receiving the payments, the petitioner is not

entitled to claim interest on pension amounts and also other

reliefs. He further contended that the petitioner has proceeded on

leave w.e.f. 10.10.1996 to 29.07.2001 without obtaining prior

permission from the competent authority, due to the same, the

disciplinary authority initiated the proceedings against the

petitioner by appointing enquiry officers. In the meantime, the

petitioner retired from service. According to rules, the petitioner is

not entitled for annual grade increments for the said period i.e.,

10.10.1996 to 29.07.2001. The petitioner has given his consent to

pay leave salary and pension contribution for the period he was on

deputation as per the Rule 116 of AP fundamental Rules. After

giving his consent for deduction of pension contribution for the

period which he went on deputation of foreign services and

furnished the statement of deduction amount of Rs.92,524/-, he

filed the above writ petition on after thought and the writ petitions

filed by the petitioner are liable to be dismissed.

4. Heard Sri. Prof. M. Haragopal Rao, learned party-in person

and learned Government Pleader forServices-I for respondents.

5. Learned Party-in-person contended that he was on foreign

deputation during the following periods:

 I.      03.02.1980 to 29.01.1985

 II.     06.05.1991to 30.06.1996

 III.    10.10.1996 to 29.07.2001

The above said periods have to be counted as qualifying

service and to provide pension contribution and leave contribution

to him during the said periods. He further contended that the

respondents ought to have treated the said periods as "on duty"

and to pay the pension and pensionary benefits to him.

5.1 He further contended that respondent No.2 without

considering the said fact, issued the impugned Memo Rc.No.Ser.I-

1/109/2005 dated 06-07-2013. He also contended that the

respondents paid the pension for first time in the year 2012, but

he is entitled for additional pension, interest and other pensionary

benefits as well. He further submits that aggrieved by the orders

passed by APAT in O.A.No.4312 of 2009 respondents herein have

filed W.P.No.10118 of 2014 and the same was disposed by its

order dated 04.09.2019. Pursuant to the said order only,

respondent No.2 issued proceedings on 31.10.2022 granting

revised pension and other benefits. He further submits that as

per the Rule 51 and Rule 52 of pension Rules respondents have

paid anticipatory pension and by virtue of the said order,

O.A.No.4312 OF 2009 as well as C.A filed before APAT were closed.

He further submits that as per the Rule 21(2) of Rules, the

respondents have to consider the EOL period for qualifying the

service, subject to payment of pension contribution and leave

contribution. He further contended that the period of deputation

i.e., 10.10.1996 to 29.07.2001 has to be treated as 'on duty' for

extending notional increments and pension and pensionary

benefits, gratuity along with interest till the payments.

6. Learned Government Pleader contended that the

respondents regularized the initial period i.e., 03.02.1980 to

29.01.1985 treating as on deputation. In so far as the second

foreign deputation period i.e., 06.05.1991 to 30.06.1996

respondent treated that period as HPL and the respondent

authorities sanctioned the pension to the petitioner as per his

entitlement. The respondent authorities have not granted any

leave or permission to go to abroad and petitioner was absented

from his duties unauthorizedly for a period from 10.10.1996 to

30.07.2001 and due to said unauthorized absence, the respondent

authorities have initiated the departmental proceedings, in the

interalia period, the petitioner retired and due to the same,

respondent have not conducted the enquiry and not imposed

punishment of unauthorized absence. However, the respondents

have released the terminal benefits including gratuity and also

sanctioned pension as per his entitlement. Pursuant to the orders

of the APAT, the representation submitted by the petitioner was

considered and respondent No.2 issued impugned proceedings on

06.07.2013 by giving cogent reasons and the petitioner is not

entitled to claim increments and pension for the period

from10.10.1996 to 30.07.2001, or any other benefits as claimed in

these writ petitions. In support of his contention he relied upon

the judgment of Hon'ble Supreme Court in A.P.S.R.T.C. and

another Vs. S.Narsagound 1.

6.1. Learned party in person submitted his reply that APAT

while disposing the O.A. specifically directed the respondents to

pay pensionary benefits in accordance with law. As per the

provisions of Rule 21(2), 45, 46, 51 and 58 on revised pension

Rules, the petitioner is entitled to the claims made in these writ

petitions.

7. Having considered the rival submissions made by

respective parties and upon perusal of the material available on

record the following points arise for consideration:

i) Whether the petitioner is entitled to the relief sought by him, claiming notional increments for the period from 10.10.1996 to 29.07.2001 and consequential benefits for the period from 30.07.2001 to 05.08.2002, in W.P(TR).No.1450 of 2017?

(ii) Whether the petitioner is entitled for payment of arrears and pay fixationof RPS 2005, retirement benefits i.e., pension, gratuity and difference of commutation, value of pension(CVP) along with interest for the delay period as claimed in W.P(TR).No.1451 of 2017?

12003 2 SCC 212

POINT NO.(i) AND (ii)

8. It is undisputed fact that the petitioner was retired from

service as principal on attaining the age of superannuation

w.e.f.31.08.2006. The specific contention of the petitioner is that

during his service, he was on foreign deputation during the

periods i.e.,

I. 03.02.1980 to 29.01.1985

II. 06.05.1991 to 30.06.1996

III. 10.10.1996 to 29.07.2001

9. It appears from the records that respondents regularized

the initial period i.e., 03.02.1980 to 29.01.1985 treating as on

deputation. Insofar as the second foreign deputation period i.e.,

06.05.1991 to 30.06.1996, is concerned, respondents treated that

period as HPL and the respondent authorities sanctioned the

pension to the petitioner as per his entitlement. Insofar as the

other period i.e., 10.10.1996 to 29.07.2001 is concerned the

petitioner has taken up the said foreign assignment without prior

permission from the competent authority. As the petitioner

proceeded on leave w.e.f. 10.10.1996 to 29.07.2001 without

obtaining prior permission from the competent authority,

respondent No.2 initiated disciplinary proceedings and appointed

enquiry officer. When the enquiry proceedings were pending, the

petitioner retired from services on 31.08.2006, on attaining the

age of superannuation. Due to his retirement the respondents

have dropped the further action against the petitioner and

respondent No.1 had issued G.O.Rt.No.287 dated 20.04.2007

regularizing his leave period i.e., foreign assessment as E.O.L

interms of G.O.Ms.No.214, Finance Department dated 03.09.1996

and also as per the Memo No.1668/IE.I/1996-3 dated 23.01.1998.

Thereafter, petitioner submitted documents for sanction of

pension and the respondent No.2 had issued proceedings on

28.08.2007 returning the pension proposals pointing out

irregularities and directed the petitioner to submit all the required

documents. Pursuant to the same, petitioner resubmitted the

application and the same was forwarded by respondent No.2

through letter dated 23.10.2007 to the Accountant General,

Hyderabad.

10. In the meanwhile, petitioner filed O.A.No.4312 of 2009

before APAT, wherein APAT had granted interim direction directing

the respondents therein to fix the provisional pension and pay the

same along with arrears and also pay the retirements benefits by

its order dated 16-03-2009. Pursuant to said order, respondent

No.2 issued proceedings on 21.04.2009, sanctioning anticipatory

pension by taking pay Rs.7,900/- in RPS 1998 and also paid an

amount of Rs.7,71,622/-, towards arrears of the pensionary

benefits to the petitioner. On 01.07.2010, APAT disposed the

above said case directing the respondents to pay pension and

other service benefits as per the Rules.

11. Insofar as the contention of petitioner that he is entitled to

pension and pensionary benefits to the period i.e., 10.10.1996 to

29.07.2001 and treating the same as 'on duty', is concerned, the

petitioner went to foreign voluntarily in the absence of any prior

permission from the competent authority and mere submission of

application for grant of permission for the foreign tour, will not

create any right and merely basing on the recommendation made

by respondent No.2 in the absence of clear permission granted by

the competent authority, the petitioner is not entitled to claim to

treat the above period as on duty and also he is not entitled to

claim other consequential service benefits.

12. It is very much relevant to mention here that the

Government of India, Ministry of Personnel, Public Grievance ad

Pensions (Department of Personnel and training, New Delhi) in

F.18/10/91-FA(UN) has issued consolidated instructions relating

to Foreign Assignment of Indian Experts. As per the said

instructions, the State Government alone is having authority to

grant permission to the employees for foreign deputation. In the

case on hand, the petitioner was not granted permission for

foreign tour for the period from 10.10.1996 to 29.07.2001 by the

respondent No.1 and in the absence of such permission, he is not

entitled to claim regularization of the said period merely basing on

the recommendation made by the respondent No.2.

13. It is very much relevant to mention here that the Hon'ble

Apex court in V.V.G. Reddy v. Andhra Pradesh State Road

Transport Corporation, Nizamabad Region and another 2,

while re-considering the judgements and principles of law laid

down in A.P.S.RTC v. Abdul Kareem [(2005) 6 SCC 36] and

A.P.S.RTC v. S. Narsagoud [(2003) 2 SCC 212] clearly held that

in the absence of specific direction in the Award that the employee

would be entitled to all the consequential benefits, he cannot claim

a benefit of increments notionally earned during the period when

he was not on duty.

14. It is already stated supra that the competent authority had

not granted permission for the foreign tour to the petitioner for the

period 10.10.1996 to 29.07.2001 and in the absence of such

permission, the petitioner cannot claim notional increments and

consequential benefits for the said period when he was not on

duty. Therefore, Point No.(i) has been answered accordingly.

15. In so far as the claim of the petitioner in W.P.(TR).No. 1451

of 2017 seeking interest on pension and pensionary benefits from

2 (2009) 2 SCC 668

the date of retirement i.e., 31.08.2006 till the date of realization

@ 18% per annum is concerned, respondent No.2 in the counter

affidavit stated that due to administrative reasons only delay was

caused. It is needless to mention here that the respondents have

withheld the payment of pensionary benefits for which the

petitioner herein is entitled for payment of interest on the delayed

payment of pension and pensionary benefits as per the provisions

of Central Civil Services (Pension) Rules, 2021 and payment of

Gratuity Act, 1972 which reads as follows:

Rule 65 (5): Without prejudice to the generality of the provisions of sub-rule (1), the period for which interest shall be payable for the delay in payment of pension or gratuity shall be determined in the following manner, namely:-

(b) In the case of a Government servant who retires or is retired otherwise than on superannuation or is absorbed in a public sector undertaking or an autonomous body or dies during service or after retirement, interest shall be payable from the date following the date of expiry of a period of three months from the date of retirement or absorption or death, as the case may be, up to the date of payment of arrears of pension or gratuity;

Rule 68 of the CCS (Pension) Rules, 1972 and decision of the Government India, mentioned under Rule 68 of the CCS (Pension) Rules, 1972, are reproduced below:

Interest on delayed payment of gratuity (1) If the payment of gratuity has been authorized later than the date when its payment becomes due, and it is clearly established that the delay in payment was attributable to administrative lapses, interest shall be paid at such rate as may be prescribed and in accordance with the instructions issued from time to time:

Provided that the delay in payment was not caused on account of failure on the part of the Government servant to comply with the procedure laid down by the Government for processing his pension papers.

16. It is very much relevant to place on record that in

V. Ranganathan v. Commissioner of Police 3, Madras High

Court held that an employee is entitled to claim interest on

delayed payment of pension and other retiral benefits, even in the

absence of statutory rules/administrative instructions or

guidelines and he can make his claim for interest, under Part III of

the Constitution of India relying on Articles 14, 19 and 21 of the

Constitution of India"

17. For the foregoing reasons, this Court does not find any

illegality or irregularity in the impugned order dated 06.07.2013

passed by respondent No.2 in W.P(TR).No.1450 of 2017 to invoke

the jurisdiction of this Court under Article 226 of Constitution of

India. Accordingly, W.P(TR).No.1450 of 2017 is dismissed.

18. In so far as the relief sought in W.P(TR).No.1451 of 2017 is

concerned, respondents are directed to calculate and pay interest

from the date of his retirement i.e., 31.08.2006 till the date of

realization @ 9% per annum to the petitioner in respect of belated

disbursement of pension and pensionary benefits. It is made clear

that the said exercise shall be completed within a period of two (2)

months from the date of receipt of a copy of this order.

Accordingly, W.P(TR).No.1451 of 2017 is allowed in part. No costs

32012 SCC OnLine Mad 1548

As a sequel thereto, miscellaneous applications, if any,

pending in this writ petition shall stand closed.

_____________________________ JUSTICE J SREENIVAS RAO

06th October, 2023 PSW