Shri Gouranga Dhar vs The State Of Tripura
2021 Latest Caselaw 582 Tri

                       HIGH COURT OF TRIPURA
                             AGARTALA

                            WA 56 of 2020
  Shri Gouranga Dhar,
  son of late Ananda Mohan Dhar,
  resident of Ramkrishnagarh,
  Manikpur, PO: Italgachha, Kolkatta- 700079
                                                      -----Appellant(s)
                                 Versus
1. The State of Tripura,
   represented by the Secretary,
   Government of Tripura,
   Finance Department, New Secretariat,
   P.O & PS: New Capital Complex, District: West Tripura

2. The Secretary to the Government of Tripura,
   Finance Department,
   New Secretariat,
   P.O & PS: New Capital Complex, District: West Tripura

3. The Accountant General, Tripura, Malancha Niwas,
   PO: Kunjaban, PS: New Capital Complex, Agartala,
   District: West Tripura
                                                     -----Respondent(s)

For Petitioner(s) : Mr. B. N. Majumder, Sr. Adv.

Mr. R. Saha, Adv.

  For Respondent(s)              : Mr. B. Majumder, ASG,
                                   Mr. H. Sarkar, Adv.
  Date of hearing
  & date of delivery of
  judgment and order             : 07.05.2021
  Date of pronouncement          : 04.06.2021
  Whether fit for reporting      : Yes


               HON'BLE MR. JUSTICE S. TALAPATRA
            HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY
                              Judgment & Order

  (S. Talapatra, J)

Being aggrieved by the order dated 13.02.2020 delivered

in WP(C) 748 of 2019 (Shri Gouranga Dhar vs. The State of Tripura

and Ors), this intra-court appeal has been preferred by the writ

petitioner.

[2] Basic facts based on which the writ petition is structured

are admitted. The core question raised in the writ petition is that

whether the writ petitioner is entitled to restoration of pension on

completion of 15 years from the day of commutation of full pension,

in terms of the Finance Department Memorandum No.F.8(7)-

FIN(G)/88/II dated 30.09.1988 (Annexure 2 to the writ petition) and

the memorandum of the Finance Department No. F.8(14)-FIN(G)/86

dated 11.03.1987 (Annexure 4 to the writ petition). Restoration of

pension has been denied by the respondents. Having referred to the

circular dated 08.04.1976 issued by the Government of India,

Department of Expenditure, as claimed to have been adopted in

Tripura (Annexure 5 to the writ petition), the petitioner has urged this

court to restore his pension on expiry of 15 years from the day of

receiving the commutation proceeds of full pension. There is no

dispute that pension payment order in favour of the petitioner under

Rule 37 of CCS (Pension) Rules 1972 was issued on 05.10.1985. On

the body of the pension payment order, it has been clearly noted as

follows:

"While making payment, OM dated 30.09.1988 may pleased be referred. FR/DR is not admissible as the employee in REC-vide F.D.O.M dated 27.02.1989."

[3] It is also not in dispute that the petitioner had received

the benefits of commutation of full pension on 05.08.1988. Learned

Single Judge by the order dated 13.02.2020 has observed that in the

year 1985, the petitioner had retired from the State Government

service and got absorbed in the Rural Electrification Corporation

(RECL for short) in the same year without break. Rule 37 of CCS

(Pension) Rules 1972 which has been adopted by the State

Government provides that the government servant who has been

permitted to be absorbed in a service or post in or under a

Corporation or Company wholly or substantially owned and controlled

or financed by the Government, shall, if such absorption is declared

by the Government in public interest, be deemed to have retired from

the service from the date of such absorption and would be eligible to

receive pension and retiral benefits which he may elect and from such

date, as may be determined. Rule 37 A of the said Rules prescribes

for payment of lump sum amount to the retired government

employed on absorption in a corporation or a company. It has been

observed that the employee may have two options to choose viz.

(a) on his application, a lump sum amount not exceeding the

commuted value of 1/3rd of his pension (b) a terminal benefit equal to

twice the amount of lump sum amount as referred to, subject to the

condition that the government servant surrenders the right to draw

2/3rd of his pension. Along with the affidavit, the respondents have

produced a copy of the undertaking dated 20.05.1987 which was

tendered by the petitioner. The petitioner preferred the option (b)

claiming 2/3rd pension to be commuted on absorption in the REC Ltd

and he had surrendered his right of drawing 2/3rd of the pension from

the date of payment of terminal benefit equal to the commuted value

of the balance amount of pension. After such commutation was

made, the petitioner was entitled to get 1/3rd of pension, but as he

opted for the terminal benefit (b) he was not eligible for further

pension. In this perspective facts which are not controverted even by

the petitioner, learned single Judge has observed as follows:

"Once the petitioner had thus at the time of his absorption in the Corporation and deemed retirement from Government service not only received 1/3rd amount of commuted value of pension but also received further lump sum in view of remaining 2/3rd amount of pension, he can thereafter have no further claim of pensionary benefits from the Government. Quite apart from this, all these events happened in the year 1985-

87. The petitioner has filed in the year 2019 which is even otherwise hopelessly belated."

[Emphasis added]

[4] By this appeal the said observation made in the order

dated 13.02.2020 has been squarely challenged. The said observation

can be segmented in two parts viz. (1) as the petitioner had

commuted the entire pension value by way of commutation, he

cannot have further claim of pensionary benefits and (2) since that

issue of pension and commutation happened in the year 1985-87, the

writ petition is hopelessly belated.

[5] According to the appellant, the observation of the learned

Single Judge that full commutation was not legally tenable, inasmuch

as, as per the pension commutation rule, a portion of the pension can

be commuted. The respondents have denied that even the family

pension will not be entitled. In this regard, the respondents have

categorically stated that such decision of the pension granting

authority is in contravention to Clause 8 of the office memorandum

dated 08.04.1976. Hence, the family pension has been recorded as

admissible in the PPO in 1989, but after 30 years, the respondents

have denied the entitlement of family pension by their communication

dated 19.12.2017. According to the appellant, he is entitled to

restoration of pension in view of law declared by the apex court in

Union of India and another vs. K. Ganeshan (judgment dated

01.09.2016 delivered in Civil Appeal No. 6048 of 2010) where the

apex court had observed as follows:

"In view of the dismissal of Civil Appeal No.6048 of 2010 by us today (Union of India and another vs. K. Ganesan (Dead) by Lrs., this appeal has to be accepted.

Accordingly, the instant appeal is allowed. The impugned order of the high court is set aside. It is directed that the appellants shall be entitled for restoration of their 2/3rd pension, after the expiry of the requisite period of commutation."

[6] In that case, K. Ganeshan, the employee was having

1/3rd of pension as is evident from the order dated 01.09.2016

delivered in Civil appeal No. 6048 of 2010. Earlier, a division bench of

the Madras High Court in K. Ganesan vs The Registrar, Central

Administrative Tribunal, Chennai and Ors reported in 2007 SCC

OnLine Mad 1496 had observed as follows:

"9. The Honourable Supreme Court has asserted in unequivocal terms the rights of the absorbees for pension along with other attendant benefits under the provisions of the Pensions Act read along with CCS Pension Rules for the period of service rendered by the absorbees in the Central Government. In the light of the said settled legal position, in so far as the right of the

absorbees to base their claim by relying upon the provisions of the Pensions Act and the CCS Pension Rules framed thereunder can no longer be questioned.

As far as the present contention raised by the petitioner, based upon Section 12 of the Pensions Act is concerned, in none of the above referred to decisions of the Honourable Supreme Court, the said question was focused in the manner in which it is now raised before us. Though in the decision reported in 1996(2) SCC- 187(Welfare Association of Absorbed Central Government Employees in Public Enterprises v. Union of India), the issue was raised by making a reference to O.M., dated 31.01.1986 as well as Rule 37-A of the CCS Pension Rules, the question was confined to the limited extent as to whether the right of the absorbees to claim the benefits as granted in the common cause case was available to them in so far as it related to 1/3rd commuted pension pursuant to their absorption in the public sector undertakings for the period of service rendered in the Central Government Organisation. The Honourable Supreme Court has countenanced such a right and held that such benefit which was made available in the common cause case to the Central Government Employees was equally available to the absorbees in respect of 1/3rd commuted pension. Though we made our anxious consideration to the decisions reported in 1991(2)SCC 265 (Welfare Assn. Of Absorbed Central Government Employees v. Union of India, 1996(2) SCC-187 (Welfare Association of Absorbed Central Government Employees in Public Enterprises v. Union of India), AIR 1998 SC 2862 (Welfare Assocn. Of A.C.G.E., in P.E v. Arvind Verma), and AIR 2000 SC 3387 (P.V.Sundara Rajan v. Union of India), in none of the decisions, the question as to the prohibition imposed under Section 12 of the Pensions Act to surrender ones own right of a pensioner was never considered. In paragraph-13 of the decision of the Honourable Supreme Court reported in AIR 2000 SC 3387, the Honourable Supreme Court while holding that the absorbees who had commuted 100% pension, continue to remain non-pensioners made clear, such position would be prevalent only till their pension is restored. Therefore, when in the case on hand, when the petitioner who also sought for 100% commutation of pension at the time of his absorption in BHEL in the year 1986, in the light of the decision of the Honourable Supreme Court reported in 1996(2) SCC-187 (Welfare Association of Absorbed Central Government Employees in Public Enterprises v. Union of India), he was fully entitled for the benefits granted to the Government Servants in the common cause case in so far as it related to 1/3rd pension commuted by him. By virtue of such a declaration of law made by the Honourable Supreme Court which made it clear that the petitioner was nevertheless a pensioner, it will have to be held that as a pensioner, he would be entitled for the protection under Section 12 of the Pensions Act 1871 in

so far as it related to surrendering of his rights as provided under Rule 37-A of the CCS Pension Rules. In other words, we hold that having regard to the above statement of law as enunciated by the Honourable Supreme Court in the decision reported in 1996(2) SCC- 187(Welfare Association of Absorbed Central Government Employees in Public Enterprises v. Union of India), the petitioner would be governed by the provisions of Pensions Act, 1871 and consequently the case of the petitioner will have to be examined in the light of the provisions contained therein. When once we reach the above said conclusion, thereafter the question is whether the commutation of whole of the pension by the petitioner in so far as it related to 1/3rd and 2/3rd of it based paragraph-4(ii)(a)(b) of O.M., dated 31.01.1986 read along with Rule 37-A can be held to have disabled the petitioner from seeking for restoration of such pension as has now been claimed in the O.A."

[Emphasis added]

It has been further observed by the apex court in the

same report as follows:

10. Section 12 of the Pensions Act, 1871, reads as under:

"12- Assignments etc., in anticipation of pension to be void. All assignments, agreements, sales and securities of very kind made by the person entitled to any pension, pay or allowance mentioned in section 11 in respect of any money not payable at or before the making thereof on account of such pension, pay or allowance or for giving or assigning any future interest therein are null and void."

11. Under Section 10 as stated by us earlier, while commutation of pension for the whole or any part of it can be opted by a pensioner based on such terms fixed under the Rules, it will have to be stated that such enabling provision providing for commutation for either part or whole of the pension can only for commutation purposes and that under the guise of commutation, it will not be open for the Government to once and for all wipe of the very right to restoration of such pension after the expiry of the period of commutation. In fact, Rule 37-A clause (b) though uses the expression the commutation of balance amount of pension namely the 2/3rd of pension, the stipulations contained therein providing for such commutation of 2/3rd pension would be subject to surrendering of the right of Government servant, for drawing the 2/3rd pension would run counter to the very concept of commutation which will

not be in consonance with Section 10 providing for commutation of pension alone and not the right to claim pension after the period of commutation.

12. That apart, even if the petitioner was obliged to surrender such a right for the drawal of 2/3rd of his pension by agreeing for the terms contained in Rule 37- A of Pension Rules in as much as such a wholesale surrender of the right to pension as contained in the said Rule conflicts Section 12 of the Pensions Act, it will have to be held that the Rules providing for such surrendering of right in opposition to Section 12 of the Act cannot be permitted to operate. When under Section 12 of the Act, there is a prohibition imposed on the pensioner himself to barter away his right under very many circumstances except as provided under Section 12-A of the Pensions Act, we are convinced that surrendering of the right for drawal of 2/3rd of Pension after its commutation as provided under Rule 37-A (b) is repugnant to Section 12 and is straight away hit by the prohibition imposed under Section 12. Consequently any action based on Rule 37-A(b) is wholly illegal and therefore the surrendering of rights of the petitioner for drawing 2/3rd of his pension at the time of its commutation to that extent can not operate against his interest. We therefore declare that such surrendering rights by the petitioner at the time of his absorption in the year 1986 while commuting 2/3rd of his pension, was invalid and consequently the petitioner was lawfully entitled for the restoration of his pension after the expiry of the period of commutation of 2/3rd pension. 15. Having regard to our above conclusion, we set aside the order of the third respondent dated 28.09.1998 and direct the second and third respondents to restore the pension payable to the petitioner after the expiry of period of commutation of 2/3rd pension and pay all the arrears payable to him and continue to pay the same for the future period. While directing the respondents 2 and 3 to restore the petitioners 2/3rd pension after the expiry of its commutation period, we however refrain ourselves from directing payment of interest on the arrears, inasmuch as, the petitioner came forward with this claim for the first time in the year 1987, that is nearly after 11 years after his retirement. We therefore do not find any justification for granting interest while restoring the petitioner's 2/3rd pension after commutation. The writ petition stands allowed. The impugned order is set aside with the direction for restoration of 2/3rd pension along with direction for payment of arrears as stated above. The second and third respondents are hereby directed to comply with our directions within eight weeks from the date of receipt of a copy of this order."

[Emphasis added]

[7] Mr. B. N Majumder, learned senior counsel assisted by

Mr. R. Saha, learned counsel has appeared for the appellant and quite

succinctly submitted that the petitioner is entitled to restoration of his

pension after fifteen years from the day when he got the commuted

value of his full pension. Mr. Majumder, learned senior counsel has

submitted on the basis of PPO, the respondents have sought to

advance a plea that there had not been 'complete' commutation. If

the purpose of the said plea is to contend that the petitioner had not

commuted his full pension, we are constrained to observe that such

contention stands contrary to the records and this court cannot

accept such contention. Mr. Majumder, learned senior counsel has on

dismissal of the writ petition being hopelessly belated relied on

decision of the apex court in Union of India and others vs Tarsem

Singh reported in (2008) 8 SCC 648 where the apex court has

unambiguously enunciated the law in the following terms:

7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay

would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.

8. In this case, the delay of 16 years would affect the consequential claim for arrears. The High Court was not justified in directing payment of arrears relating to 16 years, and that too with interest. It ought to have restricted the relief relating to arrears to only three years before the date of writ petition, or from the date of demand to date of writ petition, whichever was lesser. It ought not to have granted interest on arrears in such circumstances."

[8] The law as culled out by the apex court is that when the

causes are rooted in continuity of injury, an exception may be made

out by the court from the usual practice of applying the doctrine of

laches. It has been clearly enunciated that if the issue relates to

payment or fixation of pay and pension, relief may be granted inspite

of delay as it does not affect the right of the third party.

[9] Mr. H. Sarkar learned counsel appearing for the

respondents has clearly submitted that Central office memorandum

dated 31.01.1986 has not been adopted in the state of Tripura.

Hence, the petitioner will not be entitled to any further benefit. Mr.

Sarkar, has made a reference to one of the impugned orders which

has been issued on 19.12.2017 in respect of family pension. The

relevant part of said order dated 19.12.2017 is extracted hereunder:

"I have been directed to refer to your fax messages on the above cited subject and to inform you that the Government of Tripura has not adopted the Government of India, DOPT, OM No.28016/5/85-Estt(C) dated 31.01.1986. It is further to inform you that as per our

office records Central Circular dated 09.01.1984 has not been adopted by the State Government."

[10] Mr. Sarkar, learned counsel has further contended that

since the appellant has become a pensioner from the date of

permanent absorption in REC Ltd. i.e. on 05.03.1985, he was

therefore entitled to pro-rata pension from 05.10.1985 to 04.1.1988

and hence, the appellant was compensated by authorizing payment

being the pension admissible to the petitioner for the period from

05.10.1985 to 04.08.1988 as the payment of full commutation

amount as per Rule 6(1)(c) of CCS (Commutation) Rule 1981 was

delayed. According to the respondents, the petitioner had exercised

the option under Section 37A of CCS (Pension) Rules. As stated, two

options were available to the petitioner including gratuity +

commutation 1/3rd pension + terminal benefit of 2/3rd of monthly

pension under sub-rule 1(b)of Rule 37 of CCS (Pension) Rules. The

petitioner has opted for full commutation by surrendering the

monthly pension under the option 1(b) of Rule 37A of CCS (Pension)

Rules. Thus, it has been asserted by the respondents that the

petitioner ceased to be pensioner from 05.10.1985.

[11] Mr. Sarkar, learned counsel has stated that reasons for

that delay in settlement of full commutation in lieu of pension has

been explained in the reply filed by the respondents. Since there is

no controversy in respect of the said delay, this court is not inclined

to open that issue, which is not even material for examining the

objections taken in this intra-court appeal. Mr. Sarkar learned counsel

for the respondents has not placed any decision of recent origin

where the proposition as laid down in K. Ganeshan (supra) has been

distinguished or reversed.

[12] Having appreciated the respective contentions of the

learned counsel for the parties, this court finds that the central

government in their O.M. dated 23.06.2017 has lucidly explained the

consequence of the decision of K. Ganeshan. As this court finds that

the law as explained by the Government of India, Ministry of Public

Grievances and Pension in their OM dated 23.06.2017 suffers from no

infirmity, the entire text of the said OM is extracted below:

F. No. 4/34/2002-P&PW(D).Vol.II Government of India Ministry of Personnel, Public Grievances & Pensions Department of Pension & Pensioners Welfare

3rd Floor, LokNayakBhavan, Khan Market, New Delhi Dated the 23rd June, 2017

OFFICE MEMORANDUM

Subject: Restoration of full pension of absorbee pensioners in view of the order dated 01.09.2016 of Hon'ble Supreme Court in Civil Appeal No. 6048/2010 and Civil Appeal No. 6371/2010.

The undersigned is directed to say that in accordance with the instructions which existed before 31.03.1995, a Government servant, on absorption in a Public Sector Undertaking or an Autonomous Body, had the option to draw pro-rata gratuity and a lump sum amount in lieu of pension. The option regarding payment of lump sum amount in lieu of monthly pension on absorption in a PSU or autonomous body was available in terms of the instructions issued vide Department of Expenditure's O.M. No. 26(18)-E.V(B)/75 dated 08.04.1976, Department of Personnel & Training's O.M.

No. 28016/5/85-Estt.(C) dated 31.01.1986 and Department of Pension & Pensioners' Welfare' O.M. No. 4(12)185-P&PW dated 31.03.1987. This option was also available to Government employees on absorption in PSUs/autonomous bodies of the State Governments and Joint Sector

undertakings in terms of this Department's O.M. No. 4/43/88- P&PW(D) dated 16.10.1989. The terms and conditions for absorption of Government employees consequent on conversion of a Government Department into a PSU or autonomous body issued vide this Department's O.M. No. 4/18/87-P&PW(D) dated 5.7.1989 also provided for a similar option of lump sum payment in lieu of monthly pension.

2. In accordance with Rule 37-A of the Central Civil Services (Pension) Rules, 1972, incorporated vide Department of Expenditure's Notification No. 44(1)-E.V./71 dated 09.04.1973, on exercise of the above option, an employee was entitled to a lump sum amount not exceeding the commuted value of one-third of the pension and terminal benefit equal to twice the aforesaid lump-sum amount, subject to the condition that the Government servant surrendered his right of drawing two-thirds of his pension.

3. The option to draw a lump sum amount in lieu of pension was withdrawn vide this Department's O.M. No. 4/42/91- P&PW(D) dated 31st March, 1995. Accordingly, the erstwhile Rule 37-A was omitted from the CCS(Pension) Rules, 1972 vide Notification No. 4/42/91-P&PW(D) dated 25.06.1997.

4. In implementation of the Order dated 15.12.1995 of Hon'ble Supreme Court in WP(C) No. 11855/85, instructions were issued vide this Department's O.M. No. 4/3/86- P&PW(D) dated 30.09.1996 for restoration of one-third commuted portion of pension of Government servants who had drawn lump sum payment on absorption in a PSU/autonomous body. Further instructions were issued, from time to time, for computation and revision of the one- third restored pension of such absorbee pensioners and for payment of the attendant benefits like dearness relief, etc. to such absorbee pensioners. Orders for revision of the one-third restored pension w.e.f. 01.01.2006 of such absorbee pensioners were issued vide this Department's O.M. No 4/38/2008- P&PW(D) dated 15/09/2008, O.M. No. 4/30/2010- P&PW(D) dated 11/07/2013. And O.M. No. 4/38/2008-P&PW(D) dated 04/08/2016. These absorbee pensioners were, however, entitled to dearness relief and age related additional pension based on the notional full pension.

5. Hon'ble High Court of Judicature of Madras, in its judgement dated 02-08- 2007 in Writ Petition no. 22207/2002 filed by one Sh. K. Ganesan, an officer in the office of Controller General of Accounts, held that surrendering of the right for drawal of 2/3rd of Pension after its commutation, as provided under Rule 37-A (b), was repugnant to Section 12 of the Pensions Act, 1871 and that the petitioner was lawfully entitled for the restoration of his pension after the expiry of the period of commutation of 2/3rd pension. Hon'ble High Court, accordingly, directed restoration of 2/3rd pension and payment of arrears accordingly.

6. An SLP(Civil) No. 4054/2008(converted into Civil Appeal No. 6048/2010) was filed by the Union of India challenging the aforesaid order dated 02-08-2007 of Hon'ble High Court of Judicature of Madras. In its order dated 1.9.2016, Hon'ble Supreme Court found no justification to interfere with the order dated 02.08.2007 of Hon'ble High Court directing restoration of 2/3rd pension in respect of the respondent (Shri K. Ganesan), after the expiry of the requisite period of commutation. The Civil Appeal No. 6048/2010 was accordingly dismissed by Hon'ble Supreme Court. In the said judgement dated 1.9.2016, similar direction was passed by Hon'ble Supreme Court in the Civil Appeal No. 6371/2010 for restoration of 2/3rd pension in respect of the petitioners, Shri K.L. Dhall, an absorbed employee of Ministry of Civil Aviation and member pensioners of Welfare Association of Central Government Officers, CAD Absorbed in PSU.

7. Review Petitions No. 465/2017 and No. 472/2017 were filed by Union of India in the Supreme Court against the aforesaid order dated 1.9.2016. Instructions were separately issued to the office of Controller General of Accounts and the Ministry of Civil Aviation vide OM No.4/34/2002- P&PW(D).Vol.II dated 21-12- 2016and OM No. 4/34/2002- P&PW(D).Vol.II dated 21-12-2016respectively, for implementation of the orders of Hon'ble Supreme Court in respect of the petitioner/respondent pensioners in the aforesaid Civil Appeals, subject to the final outcome of the Review Petitions. The aforesaid Review Petitions No. 465/2017 and No. 472/2017 have been dismissed by Hon'ble Supreme Court on 22.03.2017.

8. The matter has been examined in consultation with the Department of Legal Affairs and the Ministry of Finance (Department of Expenditure). It has been decided to extend the benefit of order dated 02-08-2007 of the Hon'ble Madras High Court and the Order dated 01-09-2016 of the Hon'ble Supreme Court to all similarly placed absorbee pensioners. Accordingly, all such absorbee petitioners who had taken 100% lump-sum amount in lieu of pension on absorption in PSUs/Autonomous Bodies in accordance with the then existing Rule 37-A and in whose case 1/3 pension had been restored after 15 years, may be allowed restoration of full pension after expiry of commutation period of 15 years from the date of payment of 100% lump-sum amount.

9. The absorbee pensioners whose full pension is restored in terms of the above instructions would also be entitled to revision of their pension in accordance with the instructions issued from time to time in implementation of the recommendations of the Pay Commissions, including the 7th Central Pay Commission.

10. In their application to the persons belonging to the Indian Audit and Accounts Department, these orders issue in consultation with the Comptroller and Auditor General of India.

11. Ministry of Agriculture etc. are requested to bring the contents of these Orders to the notice of Controller of Accounts/Pay & Accounts Officers and Attached & subordinate Offices under them on a top priority basis and for taking necessary action for implementation of the above instructions. All pension disbursing offices are also advised to prominently display these orders on their notice boards for the benefit of pensioners.

12 This issues with the approval of Ministry of Finance (Department of Expenditure) vide their ID Note No.1(11)/EV/2017 dated 26-05-2017 and dated 13-6- 2017.

13. Hindi version will follow.

Sd/-

(Harjit Singh) Director Tel. No. 24624752

[13] We do not feel any necessity to dwell further on the apex

court's decision in K. Ganeshan. The law is well enunciated by

declaring that all absorbees who had taken 100% lump sum amount

in lieu of pension having been absorbed in the PSUs/ Autonomous

bodies, in accordance with the existing Rule 37A of CCS (Pension)

Rules will be entitled to the restoration of the full pension, not 1/3rd

pension after expiry of 15 (fifteen) years from the date of payment of

the commutation value for the full pension. Hence, the appellant, the

writ petitioner, is entitled to similar benefit being the absorbee in the

Rural Electrification Corporation (REC) which is a Public Sector

Undertaking (PSU). Thus, the appellant's pension be restored from

the day after expiry of 15 years from the day when he had received

the commutation payment against full pension under Rule 37A of CCS

(Pension) Rules, 1972.

[14] In this regard it has to be noted by us the plea that has

been raised by the respondents in the communication dated

19.12.2017 is unsustainable as that plea stands in contravention to

the law declared by the apex court under Article 141 of the

Constitution of India which is binding on all authorities. Further, we

observe that in view of the law as settled by the apex court in

Tarsem Singh (supra), the cause of the appellant cannot be held to

be hit by doctrine of laches. That apart, since the pension will be

restored in terms of the above, it is needless to observe that the

family pension would entail, if it is necessitated by the circumstances

in future.

Having observed thus, we direct the respondents to

restore the pension of the petitioner on expiry of 15 years from the

day of his receiving the commutation value for the full pension. The

arrears thereof shall be paid within a period of three months from

today. However, since the writ petition has been filed belatedly, we

are not inclined to grant any interest on the arrears of pension.

As corollary, the impugned order dated 13.02.2020

stands set aside.

The appeal is allowed.

However, there shall be no order as to costs.

               JUDGE                                             JUDGE



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