whether Non Practising Allowance (NPA) payable to the doctors employed
in Central Health Services, the Railways and other Departments of the
Government, who retired from service prior to 1.1.1996 is to be added to
their basic pay for calculation of pension payable to them. =
whether NPA admissible as on 1.1.1986 is to be taken into consideration
after re-fixation of pay on notional basis as on 1.1.1986 and the same is
to be added to the minimum of the revised scale while stepping up the
consolidated pension on 1.1.1996, the Ministry issued clarification vide
circular dated 11.9.2001 in the following terms:
“The undersigned is directed to refer to Ministry of Defence Letter
No. 1(1)/99/D(Pension/Services) dated 7-6-1999, wherein decision of
the Government that pension of all pensioners irrespective of their
date of retirement shall not be less than 50% of the minimum of the
revised scale of pay introduced with effect from 1-1-1996 of the post
last held by the pensioner was communicated….
NPA granted to medical officers does not form part of the scales of
pay. It is a separate element, although it is taken into account for
the purpose of computation of pension.
This has been examined in consultation with the Department of Pension
and Pensioners’ Welfare and the Department of Expenditure and it is
clarified that NPA is not to be taken into consideration after
refixation of pay on notional basis on 1-1-1986. It is also not to be
added to the minimum of the revised scale of pay as on 1-1-1996 in
cases where consolidated pension is to be stepped up to 50%, in terms
of Ministry of Defence Letter No. 1(1)/99/D (Pension/Services) dated 7-
6-1999.”
32. This Court treated circular dated 11.9.2001 as clarificatory in
nature and held that it neither amends nor modifies circular dated
7.6.1999.
The most striking difference between O.M. dated 7.4.1998 issued
by Department of Pension and Pensioners’ Welfare, Ministry of Personnel
(Public Grievances and Pension) and circular dated 7.6.1999
issued by the Defence Ministry is that the decision of the President
conveyed vide O.M. dated 7.4.1998 was that NPA shall count as pay for all
service benefits including retirement benefits but no such decision was
contained in circular dated 7.6.1999.
Therefore, the clarification issued
by the Ministry of Defence vide circular dated 11.9.2001 cannot be equated
with O.M. dated 29.10.1999 which had the effect of modifying the decision
of the President but was issued without his approval.
Unfortunately, the
Tribunal and the Division Bench of the High Court overlooked this vital
distinction between O.M. dated 7.4.1998 issued by the Ministry of Personnel
(Public Grievances and Pension), Department of Pension and Pensions’
Welfare and Circular dated 7.6.1999 issued by the Ministry of Defence and
mechanically applied the ratio of Col. B. J. Akkara’s case for deciding the
cases of the doctors, who served in Central Health Services, the Railways
and other departments of the Government. Therefore, the impugned order is
legally unsustainable.
33. In the result, the appeals are allowed, the impugned order of the
High Court as also the one passed by the Tribunal are set aside and the
applications filed by the appellants before the Tribunal are allowed in
terms of the prayer made. The respondents shall re-calculate the pension
payable to the appellants by adding the element of NPA. This exercise
shall be undertaken and completed by the concerned authorities within a
period of three months from today.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.10640-46 OF 2013
(Arising out of SLP(C) Nos. 3358-64 of 2011)
K.C. Bajaj and others
…Appellants
versus
Union of India and others …Respondents
WITH
CIVIL APPEAL NOS. 10647-48 OF 2013
(Arising out of SLP(C) Nos. 3367-68 of 2011)
CIVIL APPEAL NO. 10649 OF 2013
(Arising out of SLP(C) Nos. 6596 of 2011)
CIVIL APPEAL NO. 10650 OF 2013
(Arising out of SLP(C) No. 6597 of 2011)
CIVIL APPEAL NOS.10652-56 OF 2013
(Arising out of SLP(C).36318-22/13 CC Nos. 6086-6090 of 2012)
J U D G M E N T
G.S. SINGHVI, J.
1. Leave granted.
2. Whether final result of a case filed by a public servant with regard
to his service conditions is dependent on the arbitrary choice of the State
and/or its agencies/instrumentalities to prosecute the matter before the
higher Courts is one of the questions which would require consideration in
these appeals filed against order dated 16.10.2010 of the Division Bench of
the Delhi High Court whereby the writ petitions filed by the appellants
questioning the correctness of order dated September 12, 2008 passed by the
Central Administrative Tribunal, Principal Bench (for short, ‘the
Tribunal’) were dismissed. The other question which calls for determination
is whether Non Practising Allowance (NPA) payable to the doctors employed
in Central Health Services, the Railways and other Departments of the
Government, who retired from service prior to 1.1.1996 is to be added to
their basic pay for calculation of pension payable to them.
3. The appellants are the doctors or the legal representatives of the
deceased doctors, who were employed in the Central Health Services,
Government of India or the Railways and were paid NPA as part of their
monthly pay in lieu of private practice, availability of less promotional
avenues and late entry in the service.
Initially, NPA was paid at a fixed
rate commensurate with the rank of the doctors and their pay scale.
The
same formula was adopted by successive Pay Commission.
The 5th Pay
Commission revised the formula of calculating NPA and it was made 25% of
the basic pay of a Government doctor.
The recommendations made by the 5th
Pay Commission on this issue are contained in para 52.16 of its report,
which is reproduced below:
"52.16. Non-practicing allowance
Non-practicing allowance is presently granted under a slab system with
amounts ranging from Rs. 600 per month at the lowest level to Rs. 1000
at the highest. It has been represented to us that prior to the Third
CPC, NPA was granted as a percentage of basic pay, ranging from 25 to
40% at different levels, working out to an average of about 27%, which
has, under the present arrangements dropped to as low as 12.5 to 16%.
Doctors are also aggrieved that it does not count forwards Housing
accommodation, though it is countable for all other purposes,
including pension. There are also related demands for extension of NPA
to other categories of professionals and Government servants who have
opportunities to earn in the open market, as also the demand for
discontinuance of NPA by permitting private practice. The Third CPC
observed that NPA was granted to doctors in lieu of private practice
on account of a traditionally enjoyed privilege as well as lesser
effective service and promotion prospects caused by late entry into
service. It did not favor private practice by doctors, and favored NPA
as a separate element from pay-scales. It suggested a switchover to a
slab system instead of the existing rates with monetary limits. The
Fourth CPC enhanced the rates under the different slabs, besides
granting it uniformly to all medical officers. The administrative
Ministry has suggested that NPA should be continued and also be
counted for purposes of housing accommodation eligibility. In the
matter of permitting limited private practice we have been advised by
expert opinion that it could be permitted in a limited form provided
malpractices could be curbed. We also note that it is only doctors who
are required to devote a lifetime to health care and life sustenance
under oath as a part of their qualifications. We do not recommend
extension of NPA to any other category. We recommended that the slab
system of granting NPA to doctors may be dispensed with and NPA be
granted at a uniform rate of 25% of basic pay subject to the condition
that pay plus NPA does not exceed Rs.29,500, i.e. less than the
maximum proposed for the Cabinet Secretary. It will continue to count
forwards all service and pensionary benefits as at present. No other
change is called for, as it would disturb relatives with other
services. We are also not in favour of permitting private practice in
any form at this stage."
4. In paragraphs 137.15, 137.19 and 137.20 of its report, the 5th Pay
Commission recommended that pension of pre 01.01.1986 retirees as well as
the post 01.01.1986 retirees should not be less than 50% of the minimum pay
in the revised pay- scales at the time of the retirement.
5. In furtherance of the decision taken by the Government vide
Resolution dated 30.9.1997 for implementation of the recommendations of 5th
Central Pay Commission and in continuation of the instructions contained in
O.M. No.45/86/97-P&PW(A)-Part II dated 27.10.1997, the Government issued
O.M. dated 10.2.1998 for grant of revised pension to those who were in
receipt of specified types of pensions as on 1.1.1996 under Liberalised
Pension Rules, 1950, Central Civil Services (Pension) Rules, 1972, as
amended from time to time, and the corresponding rules applicable to
railway pensioners and pensioners of All India Services. As per O.M. dated
10.2.1998, pay of the employees who had retired prior to 1.1.1996 was to be
fixed on notional basis at par with the serving employees and their pension
was to be fixed at par with those who retired after 1.1.1996. The Railway
Board adopted the policy contained in O.M. dated 10.2.1998 and issued order
dated 10.3.1998.
6. Vide O.M. dated 7.4.1998, the Ministry of Personnel (Public
Grievances and Pension), Department of Pension and Pensioners’ Welfare
fixed the NPA ratio at 25% of the basic pay subject to the condition that
pay plus NPA shall not exceed Rs.29,500/- for the doctors belonging to
Central Health Services. It was also mentioned that NPA shall count as pay
for all service benefits including retiral benefits. For the sake of
convenient reference, O.M. dated 7.4.1998 is reproduced below:
“Office Memorandum
Dated 07.04.1998
To
All Participating Unit of
Central Health Service
Subject: Recommendation of the 5th Central Pay Commission - Grant of
Non Practicing Allowance at revised rates to Central Health Service
Officers.
S/Madam,
In supersession of this Ministry's letter of even number dated the
20th March, 1998 on the above subject I am directed to say that the
President is pleased to decide that Central Health Service officers
may be paid Non Practicing Allowance @ 25% of their Basic Pay subject
to the condition that Pay plus Non Practicing Allowance, does not
exceed Rs. 29,500/-.
2. The Non Practicing Allowance shall count as 'pay' for all service
benefits including retirement benefits as hitherto.
3. This issue with the approval of Ministry of Finance (Department of
Expenditure) U.O. No. 7(25)E-III A-97 dated 7.4.1998.
Yours faithfully,
Sd/-
(H.N. YADAV)
UNDER SECRETARY TO THE GOVERNMENT OF INDIA.”
(emphasis supplied)
7. After eight months, the Ministry of Personnel (Public Grievances and
Pension) issued O.M. dated 17.12.1998 incorporating the decision taken by
the President that w.e.f. 1.1.1996, pension of pensioners irrespective of
the date of their retirement shall not be less than 50% of the minimum pay
in the revised scale of pay introduced from 1.1.1996 of the post last held
by the pensioner.
The same reads as under:
"Department of Pen. & PW OM F.No. 45/10/98-P&PW (A) dated 17.12.1998.
Minimum Pension and Minimum Family Pension to be 50% and 30% of the
minimum pay of the post held at the time of retirement/death.
The undersigned is directed to say that in the wake of a large number
of representations received by the Government from the Pensioners'
Associations as well as individuals, the Government has reconsidered
its decision on the recommendations of the Fifth Central Pay
Commission regarding revision of pension/family pension as contained
in Paras 137.14 and 134.30 of the report. The President is now pleased
to decide that with effect from 1.1.1996, pension of all pensioners
irrespective of their date of retirement shall not be less than 50% of
the minimum pay in the revised scale of pay introduced with effect
from 1.1.1996 of the post last held by the pensioner. However, the
existing provisions in the rule governing qualifying service and
minimum pension shall continue to be operative. Similarly, with effect
from 1.1.1996 family pension shall not be less than 30% of the minimum
pay in the revised scale introduced with effect from 1.1.96 of the
post last held by the pensioner/deceased Government servant.
Accordingly, so far as persons governed by CCS (Pension) Rules, 1972
are concerned, orders contained in the following Office Memoranda of
this Department as amended from time to time shall be treated as
modified as indicated below. O.M. No. 45/86/97-P & PW (A)-Pt. I, dated
October 27, 1997.
2. The first sentence of paragraph 5 of the Office Memorandum relating
to "Pension" may be substituted by the following :-
"Pension shall continue to be calculated at 50% of the average
emoluments in all cases and shall be, subject to a minimum of Rs.1,275
per month and a maximum of upto 50% of the highest pay applicable in
the Central Government, which is Rs.30,000 per month since 1st
January, 1996, but the full pension in no case shall be les than 50%
of the minimum of the revised scale of pay introduced with effect from
1st January, 1996 for the post last held by the employee at the time
of his retirement However, such pension will be suitably reduced pro
rata where the pensioner has less than the maximum required service
for full pension as per the rule (Rule 49 of CC (Pension) Rules, 1972)
applicable to the pensioner as on the date of his/her
superannuation/retirement and in no case it will be less than Rs.1,275
p.m."
(emphasis supplied)
8. However, in the garb of answering the clarification sought by some of
the Departments/Ministries, whether NPA admissible as on 1.1.1986 is to be
taken into consideration after fixation of pay on notional basis and
whether the same is to be added to the minimum of the revised scale while
stepping up consolidated pension, the Ministry of Personnel, Public
Grievances and Pensions issued O.M. dated 29.10.1999, which reads as under:
“No. 45/3/99-P&PW(A)
Government of India
Ministry of Personnel Public Grievances & Pensions
Department of Pension & Pensioners Welfare
New Delhi, Dated the 29 October, 1999
Office Memorandum
Subject : Implementation of Government of India decision on the
recommendations of Vth CPC - Revision of Pension of Pre-1996
pensioners.
The undersigned is directed to refer to this Department’s
O.M. No. 45/10/98-P &PW(A) dated December 17, 1998 wherein
decision of the Government that pension of all pensioners
irrespective of their date of retirement shall not be less than
50% of the minimum of revised scale of pay introduced w.e.f.
1.1.96 of the post last held by the pensioner was communicated
clarifications have been sought by Departments/Ministries as to
whether Non-Practising Allowance (NPA) admissible as on 1/1/86
is to be taken into consideration after refixation of pay on
notional basis as on 1/1/86 and whether NPA is to be added to
the minimum of the revised scale while considering stepping up
consolidated pension on 1/1/96. NPA granted to medical officers
does not form part of the scales of pay. It is a separate
element although it is taken into account for the purpose of
computation of pension. This has been examined in consultation
with the Department of Expenditure and it is clarified that
N.P.A. is not to be taken into consideration after refixation of
pay on notional basis on 1/1/86. It is also not to be added to
the minimum of the revised scale of pay as on 1.1.1996 in cases
where consolidated pension/family pension is to be stepped up to
50% / 30% respectively, in terms of O.M. 45/10/98 -P&PW(A) dated
17.12.98.
2. This issues with the approval of Department of Expenditure,
Ministry of Finance vide U.O. No. 806/EV/99 dated 29.9.1999.
3. Hindi version will follow.
Sd/-
(GANGA MURTHY)
Director (PP)”
9. Dr. K.C. Garg and others, who had retired from Railways prior to
1.1.1996, challenged O.M. dated 29.10.1999 by filing applications under
Section 19 of the Administrative Tribunals Act, 1985 (for short, ‘the Act’)
and prayed that the same may be quashed and the respondents be directed to
include the element of NPA for the purpose of computing the pension payable
to them. Their applications were dismissed by the Tribunal vide order dated
5.10.2001. That order was set aside by the Division Bench of the Delhi High
Court in CWP No.7322/2001 – Dr. K.C. Garg and others v. Union of India and
others and connected matters. The High Court relied upon OM dated 7.4.1998
in which it was categorically mentioned that NPA shall be treated as part
of service benefits including retirement benefits and concluded that there
was no justification to exclude the element of NPA for the purpose of
calculating the pension. Paragraphs 5.0, 5.2 to 6.0, 10.3, 10.4, 11.1,
11.2, 11.3 and 12 of order dated 18.5.2002 passed by the High Court read as
under:
“5.0 History of grant of N.P.A. clearly shows that the same was being
granted in lieu of private practice. It was also granted having regard
to availability of less promotional avenue and late entry in the
service, N.P.A. was granted in terms of Fundamental Rule 9(21)(a)(i)
read with Fundamental Rule 9(21)(a)(ii), which read thus:-
"F.R. 9: Unless there be something repugnant in the subject of context
the terms defined in this Chapter are used in the Rules in the sense
here explained:-
xxx xxx xxx xxx
(21)(a) Pay means the amount drawn monthly by a Government servant as
(i) the pay other than special pay or pay granted in view of the
personal qualifications which has been sanctioned for a post held by
him substantively or in an officiating capacity or to which he is
entitled by reason of his position in a cadre:
(ii) overseas pay, special pay and personal pay; and
(iii) any other emoluments which may be specially classed as pay by
the President."
xxx xxx xxx xxx
5.2 It also appears that the Ministry of Health and Family Welfare
in terms of the instructions, as contained in the letter dated
07.04.1998, categorically stated that N.P.A. be treated to be a pay by
way of service benefits including retirement benefits. It is also
beyond any cavil of doubt that 25% of the basic pay was recommended
towards payment of N.P.A. by the 5th CPC, which was accepted by the
Government of India in terms of its circular letter dated 07.04.1998.
5.3 By reason of the aforementioned recommendations, an attempt had
been made to bring pre-01-01-1986 retirees and post-01-01-1986 at par
having regard to the fact that the rates of their pension were
slightly different. By reason of the said recommendation, the slab
system, which was prevailing thitherto having been given a go by and
in place thereof payment of 25% of the basic pay as N.P.A. w.e.f.
01.01.1996 was recommended. In other words, a revolutionary step was
taken by the 5th CPC by making recommendations so that the retiral
benefits is enhanced not only for pre-01-01-1986 retirees but also
post-01-01-1986 retirees at par.
5.4 In para 137.13 of its Report, the 5th CPC clearly stated that it
was desirable to grant complete parity in pension to all past
pensioners irrespective of the date of their retirement, but having
regard to the fact that the same was not found to be feasible and
having regard to the considerable financial implications, a suggestion
was made that the process of bridging the gap in the matter of payment
of pension would be fulfillled if certain additional reliefs be
granted in addition to the recommendations of the Fourth Central Pay
Commission (in short, '4th CPC’) in terms whereof the past pensioners
were granted additional relief in addition to the consolidation of
their pension.
5.5. Yet again in para 137.14 of its Report, the 5th CPC recommended
that as a follow up of their basic objective of parity, the pension of
all pre-01-01-1986 retirees should be updated by notional fixation of
their pay as on 01.01.1986 by adopting the same formula as for the
service benefits. Pursuant whereto, all the past pensioners of pre-01-
01-1986 were to be brought on a common platform so as to grant them
the benefit of the revision of pay scale as recommended by 4th CPC as
on 01.01.1986. It was further laid down that all pre-01-01-1986
pensioners, who had been brought on to the 4th CPC by notional
fixation of their pay and who had retired after 01.01.1986, the
recommendation was that the consolidated pension would not be less
than 50% of the minimum pay of the post as revised by the 5th CPC.
6.0 It is, therefore, evident that the 5th CPC recommendations were
to bring all the pensioners whether pre-01-01-1986 retirees or post-01-
01-1986 on a common platform. The recommendations in no uncertain
terms suggest that the payment of pension of pre-01-01-1986 retirees
and post-01-01-1986 retirees should be the same. The Central
Government admittedly acted in terms of the aforementioned
recommendations by determining the pension, which was not less than
50% of the minimum of their pay in the revised pay-scale of the post
held by the pensioners at the time of retirement w.e.f. 01.01.1986.
For the said purpose, the minimum of the pay revised in the 5th CPC of
the post concerned was determined were with 25% of the pay as N.P.A.
was added and 50% thereof had been taken as revised minimum pension as
per the qualifying service.
10.3 It is difficult for us to accept the contention that despite the
fact that N.P.A. shall form part of pay so far as post-01-01-1986
retirees are concerned, the same would not form part of pay despite
provisions in the Fundamental Rules so far as pre-01-01-1986 retirees
are concerned. The 5th CPC has taken into consideration, as noticed
hereinbefore, the history of grant of N.P.A. and wherefrom it is
evident that N.P.A. became part of pay.
10.4 It is not a case where cut-off date has been fixed. The Central
Government is entitled for the purpose of determination of pension
pursuant to the policy decision to fix a cut-off date. It is also true
that such a cut-off date cannot be held to be arbitrary and
irrational, as it was not picked out of a hat. However, in the instant
case, we are not concerned with any cut-off date, but we are concerned
with the question as to whether despite recommendations of the 5th
CPC, a discrimination can be made. The very fact that the Central
Government accepts that the emoluments would mean basic pay + N.P.A.
in view of its definition as existing in the Rule 9(21)(a)(i) of the
Fundamental Rules, there cannot be any reason whatsoever as to why
N.P.A. shall be considered to be a part of pay for post-01-01-1986
retirees and not for pre-01-01-1986 retirees.
11.1 We may, in this connection, notice that emoluments has been
defined in Rule 33 of CCS (Pension) Rules, 1972 in the following
terms:-
"The expression 'emoluments' means basic pay as defined in Rule
9(21)(a)(i) of the Fundamental Rules which a Government servant is
receiving immediately before his retirement or on the date of his
death and will also include Non Practising Allowance granted to the
Medical Officer in lieu of private practice."
Thus, even in terms of the aforementioned definition, N.P.A. would be
part of pay.
11.2 In D.S. Nakara and Ors. v. Union of India., it is stated:-
"42. If it appears to be undisputable, as it does to us that the
pensioners for the purpose of pension benefits form a class, would its
upward revision permit a homogeneous class to be divided by
arbitrarily fixing an eligibility criteria unrelated to purpose of
revision, and would such classification be founded on some rational
principle? The classification has to be based, as is well settled, on
some rational principle and the rational principle must have nexus to
the objects sought to be achieved. We have set out the objects
underlying the payment of pension. If the State considered it
necessary to liberalise the pension scheme, we find no rational
principle behind it for granting these benefits only to those who
retired subsequent to that date simultaneously denying the same to
those who retired prior to that date. If the liberalization was
considered necessary for augmenting social security in old age to
government servants then those who retired earlier cannot be worse off
than those who retired later. Therefore, this division which
classified pensioners into two classes is not based on any rational
principle and if the rational principle is the one of dividing
pensioners with a view to giving something more to persons otherwise
equally placed, it would be discriminatory. To illustrate, take two
persons, one retired just a day prior and another a day just
succeeding the specified date. Both were in the same pay bracket, the
average emolument was the same and both had put in equal number of
years of service."
11.3 Yet again in V. Kasturi v. Managing Director, State Bank of
India, Bombay and Anr., the Apex Court pointed that in D.S. Nakara's
case (supra) a distinction has been made between a new scheme and a
liberalized pension scheme. When a new scheme come into force, the
same may not apply to the persons who had retired prior thereto, but
when there is a revision in the existing scheme by way of upward
revision, the scheme should be applied.
12. For the reasons aforementioned, the impugned order cannot be
sustained, which is set aside accordingly. These writ petitions are
allowed. However, in the facts and circumstances of the case, there
shall be no orders as to cost.”
10. The aforementioned order of the Delhi High Court was challenged by
the respondents by filing special leave petitions, which were converted
into Civil Appeal Nos. 1972-1974/2003. During the pendency of the appeals,
other similarly situated doctors made representations for grant of benefit
in terms of the High Court’s order. Thereupon, the Government of India
made a reference to the Attorney General and sought his opinion on the
question whether judgment of the Delhi High Court was correct and should be
accepted. The Attorney General considered the relevant rules, the Office
Memorandums and gave detailed opinion, which reads thus:
“OPINION
Sub: Regarding the inclusion of Non Practising Allowance (NPA) to
Pensioners Doctors in the calculation of pension.
1. Doctors in the Central Government who retired prior to 01.01.1996
are aggrieved by the Office Memorandum dated 29.10.1999 issued by the
Government of India, Ministry of Personnel, Public Grievances and
Pension, Department of Pensions and Pensioners Welfare [hereinafter
referred to as MoPP] which inter-alia provides that Non-Practising
Allowance [NPA] is not to be taken into consideration after refixation
of their pay and as a result NPA is not to be added to the minimum of
the revised scale of pay as on 01.01.1996 in cases where pension is to
be stepped up to 50% in terms of the earlier O.M. dated 17.12.1998.
2. As per the Rule 9(21)(a)(i) of the Fundamental Rules, NPA forms a
part of the pay of a government doctor and is taken into account for
computing dearness allowance, entitlement of IADA for sanctioning
advances under GFRs, House Building Advance and other allowances as
well as for calculation of retrial benefits.
3. By an Office Memorandum dated 27.10.1997 issued by MoPP, the
Government decided to accept the modified parity formula while
implementing the recommendations of the Vth Pay Commission Government
servants who retired before 01.01.1986 [i.e. before the implementation
of the IVth Pay Commission] and those who retire before 01.01.1996
[i.e. before implementation of the Vth Pay Commission] were
sought to be brought at par by the notional fixation of pay of the
first category as of 01.01.1986 and thereafter consolidation of their
pension as on 01.01.1996.
4. A number of representations were received by the Government from
Government servants who retired prior to 01.01.1996 and they claimed
parity with government servants who retired after 01.01.1996. By
Office Memorandum dated 17.12.1998, issued by MoPP, the Government of
India sought to achieve parity between pre 01.01.1996 retirees and
post 01.01.1996 retirees. By the aforesaid O.M., it was provided that
pension/ family pension of pre 01.01.1996 retirees would be stepped
upto 50% / 30% of the minimum of the corresponding revised scale of
pay in respect of that post as on 01.01.1996. Thus, all retired
government officers retiring from a particular post were to be given
pension which was comparable to a large extent. This decision of the
Government finds some support from the judgment of the Supreme Court
in D.S. Nakara v. Union of India, AIR 1983 SC 130.
5. Like all retired government servants, government doctors of the
Central Health Scheme were also given benefit of stepping up of their
pension to 50% of the minimum revised scale of pay as on 01.01.1996 by
including NPA being granted to the government doctors in that scale of
pay and such stepped pension was in fact paid to them.
6. However, subsequently on 29.10.1999, as mentioned herein above, the
MoPP issued Office Memorandum making a technical distinction between
pay and scale of pay and provided that since NPA cannot be given while
stepping the pension up to 50%.
7. The government doctors who retire after 01.01.1996 would get
benefit of NPA as it forms a part of their pay. Hence, just on the
basis only of date of retirement, there would be wide disparity
between pension of government doctors, i.e. who retired prior to
01.01.1996 would get much less pension then those who retire after
01.01.1996.
8. The distinction between 'pay' and 'scale of pay' made out in the
Office Memorandum dated 29.10.1999 to deny benefit of NPA for the
purpose of stepping up of the pension to 50%, is purely technical and
mechanical distinction and does not take into account the special
position of NPA qua a Government doctor.
9. NPA is a matter of right of government doctor and is meant as a
compensation for denial of private practice. The scale of pay
prescribed...... department of the Government of India and does not
account the special feature of Central Health Service. In Central
Health Service, NPA de jure and de facto is a part of the scale of pay
as it is inevitably linked to the basic pay. Simply because NPA is not
formally included in the scale of pay of the government doctors and
taken as a separate element, it cannot be said that NPA has to be
ignored altogether for stepping up of pension. NPA is a separate
element only because scales of pay of government servants are of
general application and not meant for individual services. However, if
an element is inevitably a part of the pay, as NPA is, in effect it
has to be construed as a scale of pay.
10. Since, NPA for government doctors is a part of their pay, it would
be discriminatory if retired government doctors are denied benefit of
stepping up of their pension without reference to the NPA presently
given to serving doctors and those who retire after 01.01.1996. In
fact, denial of NPA to pre 01.01.1996 retired government doctors would
fall foul of the guarantee of equality under Article 14 of the
Constitution.
11. The fixation of pension and stepping up of the same to 50% of the
revised scale of pay for pre 01.01.1996 retirees as provided by the
Government of India in its Official Memorandum dated 17.12.1998 was
meant to achieve parity amongst all retired government servants,
including government doctors. The comparison of pension being paid to
the government doctors who retired prior to 01.01.1996 has to be made
with the pension to be paid to government doctors who retired after
01.01.1996. If the latter category is given benefit of NPA for
calculation of their pension, the former category cannot be denied the
same by reference to a general scale of pay governing all government
servants without considering the special feature of government
doctors.
12. The Delhi High Court in its order dated 18.05.2002 in CWP Nos.
7322, 7826 and 7878 of 2001 has quashed the Office Memorandum dated
29.10.1999. In the said order, the High Court has quite rightly
observed that the benefit sought to be given by the earlier OM dated
17.12.1998 was wrongly taken away by the OM dated 29.10.1999. The High
Court has observed that in view of the stated objectives of the
Government to provide parity in pension amongst government doctors,
NPA would have to be necessarily taken into account for stepping up of
pension to 50% of the revised scale of pay has been held to be ultra
vires the Constitution.
13. The Government of India has filed an SLP against the order of the
Delhi High Court dated 18.05.2002. The reason for grant of leave in
this case is the conflicting decisions of the Delhi High Court and the
Chennai Bench of the Central Administrative Tribunal on one hand and
the Principal Bench of the Central Administrative Tribunal, New Delhi
on the other. I have no hesitation in opining that the judgment of
Justice S.B. Sinha, now a judge of the Supreme Court is correct and
should be accepted in preference to the view of the Principal Bench of
the Central Administrative Tribunal, Delhi. Consequently steps will
have to be taken with regard to the pending Special Leave Petition.”
11. After considering the opinion of the Attorney General, the Prime
Minister accorded his approval for acceptance of the order of the Delhi
High Court in K. C. Garg’s case. As a sequel to this, I.A. Nos.16-18 were
filed for withdrawal of Civil Appeal Nos. 1972-1974/2003. The same were
allowed by this Court vide order dated 13.5.2005 and the appeals were
dismissed as withdrawn.
12. On 22.6.2005, the Department of Pension and Pensioners’ Welfare,
Ministry of Personnel (Public Grievances and Pension) issued instructions
for implementation of the order passed by the High Court in K.C.Garg’s
case. It was also proposed that O.M. dated 29.10.1999 may be withdrawn.
However, the Ministry of Finance did not agree with the latter part of the
proposal. Thereafter, permission of the Prime Minster being the Minster-in-
charge of the Department of Pension and Pensioners’ Welfare, Ministry of
Personnel (Public Grievances and Pension) was sought under Rule 12 of the
Government of India (Transaction of Business) Rules, 1961. On 29.7.2000,
the Prime Minister sanctioned the proposal for withdrawal of O.M. dated
29.10.1999. However, before the decision taken by the Prime Minister could
be translated into an order, this Court delivered judgment titled Col. B.
J. Akkara (Retd.) v. Government of India and others (2006) 11 SCC 709 in
the appeals and writ petitions filed by the doctors of defence services and
in the light of that decision, the Prime Minister approved the proposal of
the Department that O. M. dated 29.10.1999 may not be withdrawn.
13. Dr. G. D. Hoonka, who retired as Chief Medical Superintendent,
Central Railway, Jabalpur w.e.f. 30.4.1996 challenged the decision taken by
the Railways in the light of O.M. dated 12.11.1999 whereby NPA was not
treated as part of basic pay for the purpose of calculation of pension.
The Tribunal allowed the application filed by Dr. Hoonka. Writ Petition
No.2539/2003 filed by the Union of India and others was dismissed by the
Division Bench of the Madhya Pradesh High Court vide order dated 7.12.2004,
paragraph 8 of which reads as under:
“The Circular dated 13.04.1998 makes it clear that NPA will be counted
as 'pay' for all service benefits including retirement benefits. The
Circular dated 15.01.1999 does not contain anything to the contrary.
What is stated in the circulars dated 13.04.1999 (which states that
NPA granted to Railway Medical Officers is not to be added to the
minimum of the revised scales of pay, while giving effect to the
circular dated 15.01.1999) is merely a departmental clarification and
not a policy of the Government. The circular dated 12.11.1999 rightly
states that "It (NPA) is a separate element although it is taken into
account for the purpose of computation of pension". This refers to the
policy of the Government contained in the Circular dated 13.04.1998
which states that NPA will count as 'Pay' for all service benefits and
retirement benefits, which includes pension. Having said so, the
circular dated 12.11.1999 proceeds to say that NPA is not to be added
to the minimum of the revised scale of pay as on 1.01.1996 in cases
where consolidated pension is to be stepped up to 1999. The policy of
the government (Decision of the President) as stated in the Circular
dated 13.04.1998 that NPA will count as pay for all service benefits
including pension, is not altered or superseded by any subsequent
policy of the Government. In fact it is reiterated in the Circular
dated 12.11.1999. If that is so, the Circular dated 12.11.1999 cannot
under the guise of clarification, delete the benefit of the policy
decision contained in the circular dated 13.04.1998, when the said
policy continues to be in force. Once it is decided, as a policy, that
NPA will count as 'Pay' for all service benefits including retirement
benefits, the same cannot be excluded by way of clarification. The
position of course could have been different if the circular dated
15.01.1999 containing the policy relating to illegible of illegible
earlier policy stated in the circular dated 13.04.1998. “The policy of
the Government formulated by a decision of the President cannot
obviously be negated by a departmental clarification running contrary
to such policy. The effect of the clarification dated 12.11.1999 is
that in giving effect to the policy contained in the Government
circular dated 15.01.1999, the policy dated 13.04.1998 is to be
ignored. But so long as the
policy contained in the President's decision, given effect by the
circular dated 13.04.1998 continues to hold the field, its effect
cannot arbitrarily be directed to be ignored by a purported
clarification, which admittedly is not a decision of the
President.”
(emphasis supplied)
(reproduced from the appeal paper book)
14. SLP (C) No.14834/2006 filed against the order of the Madhya Pradesh
High Court was dismissed by this Court on 28.8.2006. Review Petition (C)
D.No.17280/2007 was also dismissed on 17.1.2008 as barred by limitation and
also on merits.
15. Dr. Naw Nath Prasad, who retired as Medical Director, LNM, Railway
Hospital, Gorakhpur, successfully invoked the jurisdiction of the Central
Administrative Tribunal, Patna Bench for adding NPA for the purpose of
calculating pension. O.A. No.215/2005 filed by him was allowed by the
Tribunal vide order dated 17.1.2006. The Union of India challenged the
order of the Tribunal in Civil Writ Jurisdiction Case No.11114/2006. The
Division Bench of the High Court referred to order dated 18.5.2002 passed
by the Delhi High Court in Civil Writ Petition No.7826/2001 – Retired
Railway Medical Officers Association v. Union of India and others, the
order passed by the Madhya Pradesh High Court in Dr. G. D. Hoonka’s case,
the circulars issued by the Government of India for implementing the order
passed in the two cases and observed:
“It is thus evident from a plain reading of the decisions of the
Courts deciding identical issues, and duly executed by the Ministry
of Railways (Railway Board) by issuing the aforesaid letter dated
25.8.2005, that non-practising allowance availed of by a serving
doctor of Indian Railway Service is entitled to the same to be taken
into account for the purpose of computation of post retirement
benefits.
The decision of the authorities declining the same to the present
respondent, the contest put up before the Tribunal and the present
writ petition at the instance of the authorities, is beyond our
comprehension, speaks of not only unreasonable approach,
seems to be arbitrary and verging on administrative tyranny,
and burdening the Tribunal and this Court with utmost unwanted
matters, and harassing the retired employee in the evening of his
life.”
16. SLP (C) No.15134/2010 filed against the order of the Patna High Court
was dismissed by this Court on 4.10.2010 in the following terms:
“We are not inclined to entertain the special leave petition, since
the subject matter thereof has been considered earlier. However, the
cost imposed by the High Court in the writ petition is quashed. The
special leave petition is dismissed except to the above extent.”
17. Dr. S.N. Srivastava, who retired from the post of Chief Medical
Superintendent (nomenclature of the particular railway has not been given
in the copy of order filed by the counsel for the appellants) w.e.f.
31.1.1996 filed Writ Petition No.1774(SB)/2004 before the Allahabad High
Court for issue of a mandamus to the respondents to re-fix his pension by
adding the element of NPA. He relied upon the order passed by the Madhya
Pradesh High Court in the case of Dr. G. D. Hoonka and pleaded that with
the dismissal of the special leave petition filed by the respondents, the
order passed in that case has become final and the same is binding on the
respondents. On behalf of the respondents, reliance was placed on the
judgment of this Court in Col. B. J. Akkara (Retd.) v. Government of India
and others (supra) and it was pleaded that the writ petitioner is not
entitled to any relief. The Division Bench of the Allahabad High Court
relied upon paragraphs 12 and 13 of the order passed by the Tribunal in Dr.
G. D. Hoonka’s case, referred to the judgment in Col. B. J. Akkara’s case
and allowed the writ petition by recording the following observations:
“It is pertinent to point out at this juncture that against the
judgment and order dated 9.5.2003 passed by the Central Administrative
Tribunal, Jabalpur in the matter of Dr. G.D.Hoonka, the Department
questioned the validity of the aforesaid judgment by filing writ
petition no. 2539 of 2003 and the Jabalpur High Court by a detailed
judgment refused to interfere with the order of the Tribunal and
dismissed the writ petition vide its judgment and order dated
7.12.2004. While dismissing the writ petition, the Jabalpur High Court
observed in paragraph 9 as under:-
"9. In fact, we find that when the question as to whether NPA is to be
taken as part of pay in regard to those who had retired prior to
1.1.1996, came up for consideration before the Delhi High Court in Dr.
K.C.Garg vs. Union of India (CWP 7322/2001) and connected cases
decided on 18.5.2002, the Railway Administration through their counsel
conceded in a reply to a query that NPA shall be taken to be a part of
pay for post 1.1.1996. Be that as it may."
Under these circumstances, it is very difficult for us to accept the
contentions of the Department and find force in the submissions
advanced by the Counsel for the petitioner that the petitioner is also
entitled for the benefit of the judgment rendered in Dr. G .D.
Hoonka's case, referred to above.”
18. Dr. K.C. Bajaj (one of the appellants in the appeals arising out of
SLP (C) Nos.3358-64/2011) filed O.A. No.1275/2006 for issue of a direction
to the respondents to add NPA for the purpose of calculating the pension.
The same was disposed of by the Tribunal with a direction to the
respondents to consider his case for grant of pension in terms of the
judgment in Dr. K. C. Garg’s case and pass a speaking and reasoned order.
However, by taking shelter of the judgment in B.J. Akkara’s case, the
Railway Board rejected his representation. O.A. No.1369/2007 filed by Dr.
K. C. Bajaj was dismissed by the Tribunal along with other similar
applications vide order dated 12.9.2008 by relying upon the judgment of
this Court in Col. B. J. Akkara’s case. The writ petitions filed by the
appellants questioning the order of the Tribunal were also dismissed by the
High Court.
19. These appeals were heard by different Benches on various dates. On
11.4.2013, the learned Additional Solicitor General produced the file
containing different opinions recorded by the learned Attorney General.
After perusing the file, the Court passed the following order:
“Further arguments heard, which remained inconclusive.
The file produced by the learned Additional Solicitor General contains
different opinions recorded by the learned Attorney General. In the
last opinion recorded in 2007, the learned Attorney General noted that
the files produced before him do not contain formal notification for
withdrawal of O.M. dated 29.10.1999.
However, from the judgment of this Court in Col. B.J. Akkara (Retired)
v. Government of India and others (2006) 11 SCC 709 which was decided
on 10.10.2006, it is borne out that an affidavit was filed on behalf
of the respondents on 1.8.2006 stating therein that Circular dated
29.10.1999 had been withdrawn in regard to the Civilian Medical
Officers who were petitioners in the writ petition filed by Dr. K.C.
Garg and others. It is also borne out from paragraph 23 of the
judgment that the Court deciding the matter had been informed that the
order passed by the Delhi High Court in C.W.P. Nos. 7322, 7826 and
7378 of 2001 Dr. K.C. Garg and others v Union of India and others had
not been challenged by the Union of India and the directions contained
in the High Court's order had been implemented.
All this, prima facie, shows that the parties appearing before the
Court had not placed the facts in a correct perspective and apparently
misleading statement was made in the affidavit filed on behalf of the
respondents that O.M. dated 29.10.1999 had been withdrawn in respect
of the petitioners in K.C. Garg's case.
The learned Additional Solicitor General should instruct his
assisting counsel to ensure that an affidavit of a senior officer of
the rank of Joint Secretary to the Government is filed clarifying the
stand of the Government. In the affidavit it should also be
indicated as to what steps were taken for compliance of the
direction given by the Prime Minister under Rule 12 of the Government
of India (Transaction of Business) Rules, 1961. The required affidavit
be filed within two weeks.
For further hearing, the cases be listed on 01.05.2013.”
20. In compliance of the direction given by this Court, Ms. Vandana
Sharma, Joint Secretary, Ministry of Personnel, Pension and Public
Grievances filed affidavit dated 24.5.2013. Thereafter, the counsel for
the parties made further arguments and judgment was reserved on 7.5.2013
with liberty to the parties to file written submissions.
21. While dictating the judgment, the Court found that the written
arguments filed on behalf of the parties contain additional facts which
were not brought to the notice of the Court during the course of hearing.
Therefore, by an order dated 2.7.2013, the case was ordered to be listed
for further arguments, which were heard on 24.9.2013 and judgment was again
reserved.
22. Shri Prashant Bhushan, learned counsel appearing for the appellants
in the appeals arising out of SLP (C) Nos.3358-64/2011 argued that the
judgments of the Delhi, Madhya Pradesh, Patna and Allahabad High Courts are
binding on the respondents because O.M. dated 29.10.1999 which was
challenged by Dr. K.C. Garg and others was quashed by the Division Bench of
the Delhi High Court vide order dated 18.5.2002 and though the respondents
had challenged that order by filing special leave petitions, a conscious
decision was taken by the Government to withdraw Civil Appeal Nos.1972-
1974/2003 and to implement the order of the Delhi High Court. Shri
Bhushan pointed out that the special leave petitions filed against the
orders passed by the Madhya Pradesh High Court and the Patna High Court in
the cases of Dr. G. D. Hoonka and Dr. Naw Nath Prasad were also dismissed
by this Court and argued that having implemented the orders of the High
Court in the cases of civilian doctors as well as doctors employed in the
Railways and Post and Telegraph Department, it is not open to the
respondents to rely upon the judgment in Col. B.J. Akkara’s case for
denying relief to the appellants. In support of this argument, Shri Bhushan
relied upon the judgments in Amrit Lal Berry v. Collector of Central
Excise, New Delhi and others (1975) 4 SCC 714 and K. I. Shephard and others
v. Union of India and others (1987) 4 SCC 431. He submitted that the
judgment in State of Maharashtra v. Digambar (1995) 4 SCC 683, to which
reference has been made in paragraph 25 of the judgment in Col.B.J.
Akkara’s case, has no bearing on these appeals because a conscious and
considered decision was taken by the Government of India to withdraw the
appeals filed against the order passed in the case of Dr. K.C. Garg and
others and the orders passed by the Madhya Pradesh and Patna High Courts
were implemented after dismissal of the special leave petitions. Shri
Bhushan also pointed out that question No.3 in Col. B.J. Akkara’s case was
decided by the two Judge Bench under a wholly erroneous impression that the
order passed by the Division Bench of the High Court in K.C. Garg’s case
was not challenged by the Union of India. Shri Bhushan also distinguished
the judgment in Col. B.J. Akkara’s case by pointing out that this Court had
not considered the impact of O.M. dated 7.4.2008 issued by the Government
in terms of the decision taken by the President that NPA shall count as pay
for all service benefits including retirement benefits.
23. Shri A. S. Chandhiok, learned Additional Solicitor General argued
that the issue raised in these appeals is no longer re integra and should
be deemed to have been decided against the appellants by virtue of the
judgment in Col. B. J. Akkara’s case. He emphasized that clarification
dated 11.9.2001 was issued by the Ministry of Defence in the light of O.M.
dated 29.10.1999 and in view of decision of question No.2 in Col. B. J.
Akkara’s case, the appellants cannot fall back upon O. M. dated 7.4.1998
and claim that NPA should be added to the basic pay for the purpose of
calculating the pension. The learned Additional Solicitor General argued
that dismissal of the special leave petitions filed in the cases of Dr. K.
C. Garg and others, Dr. G. D. Hoonka and Dr. Naw Nath does not have the
effect of conclusively deciding the issue relating to entitlement of the
appellants to get the benefits of the orders of the three High Courts
because this Court had not interpreted the relevant circulars and Office
Memorandums.
24. We have considered the respective arguments/submissions and carefully
scrutinized the record including the additional affidavits filed on behalf
of the respondents. We have also gone through the orders passed by the
Delhi, Madhya Pradesh, Patna and Allahabad High Courts.
25. The first question which merits consideration is whether the judgment
in State of Maharashtra v. Digambar (supra) can be relied upon for ignoring
the orders passed by the four High Courts, which have since been
implemented by the concerned departments/establishments. A reading of that
judgment shows that this Court had entertained subsequent special leave
petitions filed by the State questioning the order of the High Court
against the grant of compensation for illegal utilisation of their land
despite the fact that the special appeals filed against similar orders
passed by the High Court had already been dismissed. This Court took
cognizance of the fact that in some of the matters, the State Government
had not challenged the orders of the High Court and the special leave
petition filed in some other matters had been summarily dismissed and
proceeded to observe:
“Sometimes, as it was stated on behalf of the State, the State
Government may not choose to file appeals against certain judgments of
the High Court rendered in writ petitions when they are considered as
stray cases and not worthwhile invoking the discretionary jurisdiction
of this Court under Article 136 of the Constitution, for seeking
redressal therefor. At other times, it is also possible for the State,
not to file appeals before this Court in some matters on account of
improper advice or negligence or improper conduct of officers
concerned. It is further possible, that even where SLPs are filed by
the State against judgments of the High Court, such SLPs may not be
entertained by this Court in exercise of its discretionary
jurisdiction under Article 136 of the Constitution either because they
are considered as individual cases or because they are considered as
cases not involving stakes which may adversely affect the interest of
the State. Therefore, the circumstance of the non-filing of the
appeals by the State in some similar matters or the rejection of some
SLPs in limine by this Court in some other similar matters by itself,
in our view, cannot be held as a bar against the State in filing an
SLP or SLPs in other similar matter/s where it is considered on behalf
of the State that non-filing of such SLP or SLPs and pursuing them is
likely to seriously jeopardise the interest of the State or public
interest.”
26. This Court further observed that the special leave petition filed by
the State deserves to be decided on merits because the High Court was
wholly wrong in granting relief of compensation to all the writ petitioners
without considering their entitlement for such relief under Article 226 of
the Constitution. The Court noted that the award of compensation in such
matters would cast a burden of Rs.400 crores on the State and proceeded to
observe:
“Therefore, the fact that the State has failed to file appeals in
similar matters or this Court has rejected SLPs in similar matters,
cannot be held to be a total bar or a fetter for this Court to
entertain appeals under Article 136 of the Constitution against
similar judgments of the High Court where need to entertain such
appeals is found necessary to meet the ends of justice, in that, the
ambit of power invested in this Court under Article 136 allows its
exercise, wherever and whenever, justice of the matter demands it for
redressal of manifest injustice. When by an order, already adverted to
by us, a two-Judge Bench of this Court, has got referred the SLP out
of which the present appeal has arisen for being entertained and
decided on merits by a three-Judge Bench of this Court,
notwithstanding the rejection of SLPs by another two-Judge Bench of
this Court in similar matters, it has desired the exercise of this
Court’s wide power under Article 136 of the Constitution to meet the
ends of justice and remedy the manifest injustice caused to the State
by the judgment of the High Court under appeal, cannot be overlooked.”
27. In Col. B. J. Akkara’s case (paragraph 23), a two Judge Bench noted
that order dated 18.5.2002 passed by the Division Bench of the High Court
in Dr. K.C. Garg’s case and other connected matters had not been challenged
by the Union of India and was implemented by adding NPA to basic pay for
stepping up the pension in the case of Civilian Medical Officers who had
retired prior to 1.1.1996 and the submission made on behalf of the
respondents (paragraph 24) that circular dated 29.10.1999 had been
withdrawn only qua the Civilian Medical Officers who were petitioners in
the writ petitions filed before the High Court and not with regard to all
Civilian Medical Officers, referred to the proposition laid down in
Digambar’s case (paragraph 25), which has been extracted herein above and
held:
“The said observations apply to this case. A particular judgment of
the High Court may not be challenged by the State where the financial
repercussions are negligible or where the appeal is barred by
limitation. It may also not be challenged due to negligence or
oversight of the dealing officers or on account of wrong legal advice,
or on account of the non-comprehension of the seriousness or magnitude
of the issue involved. However, when similar matters subsequently crop
up and the magnitude of the financial implications is realised, the
State is not prevented or barred from challenging the subsequent
decisions or resisting subsequent writ petitions, even though judgment
in a case involving similar issue was allowed to reach finality in the
case of others. Of course, the position would be viewed differently,
if petitioners plead and prove that the State had adopted a “pick-and-
choose” method only to exclude petitioners on account of mala fides or
ulterior motives. Be that as it may. On the facts and circumstances,
neither the principle of res judicata nor the principle of estoppel is
attracted. The administrative law principles of legitimate expectation
or fairness in action are also not attracted. Therefore, the fact that
in some cases the validity of the circular dated 29-10-1999
(corresponding to the Defence Ministry circular dated 11-9-2001) has
been upheld and that decision has attained finality will not come in
the way of the State defending or enforcing its circular dated 11-9-
2001.”
28. However, the fact of the matter is that the Union of India did
challenge the order passed by the Delhi High Court in Dr. K. C. Garg’s case
and other connected matters by filing special leave petitions, which were
converted into Civil Appeal Nos.1972-1974/2003 and during the pendency of
the appeals, a conscious decision was taken by the Government of India not
to pursue the appeals and implement the order of the High Court. It is
neither the pleaded case of the respondents nor it has been argued before
us that the Government of India had taken decision to withdraw the appeals
field in the cases of Dr. K. C. Garg and others because the financial
implications were negligible or that the concerned officers were misled in
doing so on account of wrong legal advice. At the cost of repetition, we
consider it necessary to observe that during the pendency of the appeals,
the matter was referred to the Attorney General for his opinion whether the
judgment of the High Court is correct and the same should be implemented.
The Attorney General examined the matter keeping in view the relevant rules
and the policy decisions taken by the Government of India and opined that
the judgment of the High Court was correct and should be accepted in
preference to the view taken by the Tribunal. The issue was then
considered at the highest level of the Government and the Prime Minister
ordered implementation of the High Court’s order. Thereafter, the appeals
were withdrawn. It is a different thing that the proposal for withdrawal of
O.M. dated 29.10.1999 was shelved in view of the judgment in Col. B. J.
Akkara’s case. In other words, the Government of India had taken a well
considered decision not to pursue the appeals filed against the order of
the Delhi High Court and implement the same on the premise that the
proposition laid down therein was correct.
29. In view of the above discussion, we hold that the ratio of the
Digambar’s case cannot be invoked to justify the pick and choose
methodology adopted by the Union of India in resisting the claim of
similarly situated doctors that NPA payable to them shall be taken into
consideration for calculating the pension. Such an approach by the Union of
India is ex-facie arbitrary, unjust and has resulted in violation of
Article 14 of the Constitution.
30. The judgment in Col. B.J. Akkara’s case cannot be applied to the
appellants’ case because the circulars, which fell for interpretation in
that case and those under consideration in these appeals are different in
material aspect. By circular dated 7.6.1999, the Ministry of Defence
conveyed the decision of the President that “with effect from 1-1-1996,
pension of all armed forces pensioners irrespective of their date of
retirement shall not be less than 50% of the minimum pay in the revised
scale of pay introduced with effect from 1-1-1996 of the rank, held by the
pensioner”. The circular provided that the revision of pension should be
undertaken as follows in case of commissioned officers (both post-and pre-1-
1-1996 retirees):
“(i) Pension shall continue to be calculated at 50% of the average
emoluments in all cases and shall be subject to a minimum of Rs.1275
p.m. and a maximum of up to 50% of the highest pay applicable to armed
forces personnel but the full pension in no case shall be less than
50% of the minimum of the revised scale of pay introduced w.e.f. 1-1-
1996 for the rank last held by the commissioned officer at the time of
his/her retirement. However, such pension shall be reduced pro rata,
where the pensioner has less than the maximum required service for
full pension. [Vide clause 2.1 (a).]
(ii) Where the revised and consolidated pension of pre-1-1-1996
pensioners are not beneficial to him/her under these orders and is
either equal to or less than existing consolidated pension under this
Ministry’s letters dated 24-11-1997, 27-5-1998 and 14-7-1998, as the
case may be, his/her pension will not be revised to the disadvantage
of the pensioner (vide clause 4).”
31. When the implementing departments sought clarification on the issue
whether NPA admissible as on 1.1.1986 is to be taken into consideration
after re-fixation of pay on notional basis as on 1.1.1986 and the same is
to be added to the minimum of the revised scale while stepping up the
consolidated pension on 1.1.1996, the Ministry issued clarification vide
circular dated 11.9.2001 in the following terms:
“The undersigned is directed to refer to Ministry of Defence Letter
No. 1(1)/99/D(Pension/Services) dated 7-6-1999, wherein decision of
the Government that pension of all pensioners irrespective of their
date of retirement shall not be less than 50% of the minimum of the
revised scale of pay introduced with effect from 1-1-1996 of the post
last held by the pensioner was communicated….
NPA granted to medical officers does not form part of the scales of
pay. It is a separate element, although it is taken into account for
the purpose of computation of pension.
This has been examined in consultation with the Department of Pension
and Pensioners’ Welfare and the Department of Expenditure and it is
clarified that NPA is not to be taken into consideration after
refixation of pay on notional basis on 1-1-1986. It is also not to be
added to the minimum of the revised scale of pay as on 1-1-1996 in
cases where consolidated pension is to be stepped up to 50%, in terms
of Ministry of Defence Letter No. 1(1)/99/D (Pension/Services) dated 7-
6-1999.”
32. This Court treated circular dated 11.9.2001 as clarificatory in
nature and held that it neither amends nor modifies circular dated
7.6.1999.
The most striking difference between O.M. dated 7.4.1998 issued
by Department of Pension and Pensioners’ Welfare, Ministry of Personnel
(Public Grievances and Pension) and circular dated 7.6.1999
issued by the Defence Ministry is that the decision of the President
conveyed vide O.M. dated 7.4.1998 was that NPA shall count as pay for all
service benefits including retirement benefits but no such decision was
contained in circular dated 7.6.1999.
Therefore, the clarification issued
by the Ministry of Defence vide circular dated 11.9.2001 cannot be equated
with O.M. dated 29.10.1999 which had the effect of modifying the decision
of the President but was issued without his approval.
Unfortunately, the
Tribunal and the Division Bench of the High Court overlooked this vital
distinction between O.M. dated 7.4.1998 issued by the Ministry of Personnel
(Public Grievances and Pension), Department of Pension and Pensions’
Welfare and Circular dated 7.6.1999 issued by the Ministry of Defence and
mechanically applied the ratio of Col. B. J. Akkara’s case for deciding the
cases of the doctors, who served in Central Health Services, the Railways
and other departments of the Government. Therefore, the impugned order is
legally unsustainable.
33. In the result, the appeals are allowed, the impugned order of the
High Court as also the one passed by the Tribunal are set aside and the
applications filed by the appellants before the Tribunal are allowed in
terms of the prayer made. The respondents shall re-calculate the pension
payable to the appellants by adding the element of NPA. This exercise
shall be undertaken and completed by the concerned authorities within a
period of three months from today.
…………………………J.
(G.S.SINGHVI)
NEW DELHI; ………………………J.
NOVEMBER 27, 2013 (KURIAN
JOSEPH)
.
-----------------------
9
in Central Health Services, the Railways and other Departments of the
Government, who retired from service prior to 1.1.1996 is to be added to
their basic pay for calculation of pension payable to them. =
whether NPA admissible as on 1.1.1986 is to be taken into consideration
after re-fixation of pay on notional basis as on 1.1.1986 and the same is
to be added to the minimum of the revised scale while stepping up the
consolidated pension on 1.1.1996, the Ministry issued clarification vide
circular dated 11.9.2001 in the following terms:
“The undersigned is directed to refer to Ministry of Defence Letter
No. 1(1)/99/D(Pension/Services) dated 7-6-1999, wherein decision of
the Government that pension of all pensioners irrespective of their
date of retirement shall not be less than 50% of the minimum of the
revised scale of pay introduced with effect from 1-1-1996 of the post
last held by the pensioner was communicated….
NPA granted to medical officers does not form part of the scales of
pay. It is a separate element, although it is taken into account for
the purpose of computation of pension.
This has been examined in consultation with the Department of Pension
and Pensioners’ Welfare and the Department of Expenditure and it is
clarified that NPA is not to be taken into consideration after
refixation of pay on notional basis on 1-1-1986. It is also not to be
added to the minimum of the revised scale of pay as on 1-1-1996 in
cases where consolidated pension is to be stepped up to 50%, in terms
of Ministry of Defence Letter No. 1(1)/99/D (Pension/Services) dated 7-
6-1999.”
32. This Court treated circular dated 11.9.2001 as clarificatory in
nature and held that it neither amends nor modifies circular dated
7.6.1999.
The most striking difference between O.M. dated 7.4.1998 issued
by Department of Pension and Pensioners’ Welfare, Ministry of Personnel
(Public Grievances and Pension) and circular dated 7.6.1999
issued by the Defence Ministry is that the decision of the President
conveyed vide O.M. dated 7.4.1998 was that NPA shall count as pay for all
service benefits including retirement benefits but no such decision was
contained in circular dated 7.6.1999.
Therefore, the clarification issued
by the Ministry of Defence vide circular dated 11.9.2001 cannot be equated
with O.M. dated 29.10.1999 which had the effect of modifying the decision
of the President but was issued without his approval.
Unfortunately, the
Tribunal and the Division Bench of the High Court overlooked this vital
distinction between O.M. dated 7.4.1998 issued by the Ministry of Personnel
(Public Grievances and Pension), Department of Pension and Pensions’
Welfare and Circular dated 7.6.1999 issued by the Ministry of Defence and
mechanically applied the ratio of Col. B. J. Akkara’s case for deciding the
cases of the doctors, who served in Central Health Services, the Railways
and other departments of the Government. Therefore, the impugned order is
legally unsustainable.
33. In the result, the appeals are allowed, the impugned order of the
High Court as also the one passed by the Tribunal are set aside and the
applications filed by the appellants before the Tribunal are allowed in
terms of the prayer made. The respondents shall re-calculate the pension
payable to the appellants by adding the element of NPA. This exercise
shall be undertaken and completed by the concerned authorities within a
period of three months from today.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.10640-46 OF 2013
(Arising out of SLP(C) Nos. 3358-64 of 2011)
K.C. Bajaj and others
…Appellants
versus
Union of India and others …Respondents
WITH
CIVIL APPEAL NOS. 10647-48 OF 2013
(Arising out of SLP(C) Nos. 3367-68 of 2011)
CIVIL APPEAL NO. 10649 OF 2013
(Arising out of SLP(C) Nos. 6596 of 2011)
CIVIL APPEAL NO. 10650 OF 2013
(Arising out of SLP(C) No. 6597 of 2011)
CIVIL APPEAL NOS.10652-56 OF 2013
(Arising out of SLP(C).36318-22/13 CC Nos. 6086-6090 of 2012)
J U D G M E N T
G.S. SINGHVI, J.
1. Leave granted.
2. Whether final result of a case filed by a public servant with regard
to his service conditions is dependent on the arbitrary choice of the State
and/or its agencies/instrumentalities to prosecute the matter before the
higher Courts is one of the questions which would require consideration in
these appeals filed against order dated 16.10.2010 of the Division Bench of
the Delhi High Court whereby the writ petitions filed by the appellants
questioning the correctness of order dated September 12, 2008 passed by the
Central Administrative Tribunal, Principal Bench (for short, ‘the
Tribunal’) were dismissed. The other question which calls for determination
is whether Non Practising Allowance (NPA) payable to the doctors employed
in Central Health Services, the Railways and other Departments of the
Government, who retired from service prior to 1.1.1996 is to be added to
their basic pay for calculation of pension payable to them.
3. The appellants are the doctors or the legal representatives of the
deceased doctors, who were employed in the Central Health Services,
Government of India or the Railways and were paid NPA as part of their
monthly pay in lieu of private practice, availability of less promotional
avenues and late entry in the service.
Initially, NPA was paid at a fixed
rate commensurate with the rank of the doctors and their pay scale.
The
same formula was adopted by successive Pay Commission.
The 5th Pay
Commission revised the formula of calculating NPA and it was made 25% of
the basic pay of a Government doctor.
The recommendations made by the 5th
Pay Commission on this issue are contained in para 52.16 of its report,
which is reproduced below:
"52.16. Non-practicing allowance
Non-practicing allowance is presently granted under a slab system with
amounts ranging from Rs. 600 per month at the lowest level to Rs. 1000
at the highest. It has been represented to us that prior to the Third
CPC, NPA was granted as a percentage of basic pay, ranging from 25 to
40% at different levels, working out to an average of about 27%, which
has, under the present arrangements dropped to as low as 12.5 to 16%.
Doctors are also aggrieved that it does not count forwards Housing
accommodation, though it is countable for all other purposes,
including pension. There are also related demands for extension of NPA
to other categories of professionals and Government servants who have
opportunities to earn in the open market, as also the demand for
discontinuance of NPA by permitting private practice. The Third CPC
observed that NPA was granted to doctors in lieu of private practice
on account of a traditionally enjoyed privilege as well as lesser
effective service and promotion prospects caused by late entry into
service. It did not favor private practice by doctors, and favored NPA
as a separate element from pay-scales. It suggested a switchover to a
slab system instead of the existing rates with monetary limits. The
Fourth CPC enhanced the rates under the different slabs, besides
granting it uniformly to all medical officers. The administrative
Ministry has suggested that NPA should be continued and also be
counted for purposes of housing accommodation eligibility. In the
matter of permitting limited private practice we have been advised by
expert opinion that it could be permitted in a limited form provided
malpractices could be curbed. We also note that it is only doctors who
are required to devote a lifetime to health care and life sustenance
under oath as a part of their qualifications. We do not recommend
extension of NPA to any other category. We recommended that the slab
system of granting NPA to doctors may be dispensed with and NPA be
granted at a uniform rate of 25% of basic pay subject to the condition
that pay plus NPA does not exceed Rs.29,500, i.e. less than the
maximum proposed for the Cabinet Secretary. It will continue to count
forwards all service and pensionary benefits as at present. No other
change is called for, as it would disturb relatives with other
services. We are also not in favour of permitting private practice in
any form at this stage."
4. In paragraphs 137.15, 137.19 and 137.20 of its report, the 5th Pay
Commission recommended that pension of pre 01.01.1986 retirees as well as
the post 01.01.1986 retirees should not be less than 50% of the minimum pay
in the revised pay- scales at the time of the retirement.
5. In furtherance of the decision taken by the Government vide
Resolution dated 30.9.1997 for implementation of the recommendations of 5th
Central Pay Commission and in continuation of the instructions contained in
O.M. No.45/86/97-P&PW(A)-Part II dated 27.10.1997, the Government issued
O.M. dated 10.2.1998 for grant of revised pension to those who were in
receipt of specified types of pensions as on 1.1.1996 under Liberalised
Pension Rules, 1950, Central Civil Services (Pension) Rules, 1972, as
amended from time to time, and the corresponding rules applicable to
railway pensioners and pensioners of All India Services. As per O.M. dated
10.2.1998, pay of the employees who had retired prior to 1.1.1996 was to be
fixed on notional basis at par with the serving employees and their pension
was to be fixed at par with those who retired after 1.1.1996. The Railway
Board adopted the policy contained in O.M. dated 10.2.1998 and issued order
dated 10.3.1998.
6. Vide O.M. dated 7.4.1998, the Ministry of Personnel (Public
Grievances and Pension), Department of Pension and Pensioners’ Welfare
fixed the NPA ratio at 25% of the basic pay subject to the condition that
pay plus NPA shall not exceed Rs.29,500/- for the doctors belonging to
Central Health Services. It was also mentioned that NPA shall count as pay
for all service benefits including retiral benefits. For the sake of
convenient reference, O.M. dated 7.4.1998 is reproduced below:
“Office Memorandum
Dated 07.04.1998
To
All Participating Unit of
Central Health Service
Subject: Recommendation of the 5th Central Pay Commission - Grant of
Non Practicing Allowance at revised rates to Central Health Service
Officers.
S/Madam,
In supersession of this Ministry's letter of even number dated the
20th March, 1998 on the above subject I am directed to say that the
President is pleased to decide that Central Health Service officers
may be paid Non Practicing Allowance @ 25% of their Basic Pay subject
to the condition that Pay plus Non Practicing Allowance, does not
exceed Rs. 29,500/-.
2. The Non Practicing Allowance shall count as 'pay' for all service
benefits including retirement benefits as hitherto.
3. This issue with the approval of Ministry of Finance (Department of
Expenditure) U.O. No. 7(25)E-III A-97 dated 7.4.1998.
Yours faithfully,
Sd/-
(H.N. YADAV)
UNDER SECRETARY TO THE GOVERNMENT OF INDIA.”
(emphasis supplied)
7. After eight months, the Ministry of Personnel (Public Grievances and
Pension) issued O.M. dated 17.12.1998 incorporating the decision taken by
the President that w.e.f. 1.1.1996, pension of pensioners irrespective of
the date of their retirement shall not be less than 50% of the minimum pay
in the revised scale of pay introduced from 1.1.1996 of the post last held
by the pensioner.
The same reads as under:
"Department of Pen. & PW OM F.No. 45/10/98-P&PW (A) dated 17.12.1998.
Minimum Pension and Minimum Family Pension to be 50% and 30% of the
minimum pay of the post held at the time of retirement/death.
The undersigned is directed to say that in the wake of a large number
of representations received by the Government from the Pensioners'
Associations as well as individuals, the Government has reconsidered
its decision on the recommendations of the Fifth Central Pay
Commission regarding revision of pension/family pension as contained
in Paras 137.14 and 134.30 of the report. The President is now pleased
to decide that with effect from 1.1.1996, pension of all pensioners
irrespective of their date of retirement shall not be less than 50% of
the minimum pay in the revised scale of pay introduced with effect
from 1.1.1996 of the post last held by the pensioner. However, the
existing provisions in the rule governing qualifying service and
minimum pension shall continue to be operative. Similarly, with effect
from 1.1.1996 family pension shall not be less than 30% of the minimum
pay in the revised scale introduced with effect from 1.1.96 of the
post last held by the pensioner/deceased Government servant.
Accordingly, so far as persons governed by CCS (Pension) Rules, 1972
are concerned, orders contained in the following Office Memoranda of
this Department as amended from time to time shall be treated as
modified as indicated below. O.M. No. 45/86/97-P & PW (A)-Pt. I, dated
October 27, 1997.
2. The first sentence of paragraph 5 of the Office Memorandum relating
to "Pension" may be substituted by the following :-
"Pension shall continue to be calculated at 50% of the average
emoluments in all cases and shall be, subject to a minimum of Rs.1,275
per month and a maximum of upto 50% of the highest pay applicable in
the Central Government, which is Rs.30,000 per month since 1st
January, 1996, but the full pension in no case shall be les than 50%
of the minimum of the revised scale of pay introduced with effect from
1st January, 1996 for the post last held by the employee at the time
of his retirement However, such pension will be suitably reduced pro
rata where the pensioner has less than the maximum required service
for full pension as per the rule (Rule 49 of CC (Pension) Rules, 1972)
applicable to the pensioner as on the date of his/her
superannuation/retirement and in no case it will be less than Rs.1,275
p.m."
(emphasis supplied)
8. However, in the garb of answering the clarification sought by some of
the Departments/Ministries, whether NPA admissible as on 1.1.1986 is to be
taken into consideration after fixation of pay on notional basis and
whether the same is to be added to the minimum of the revised scale while
stepping up consolidated pension, the Ministry of Personnel, Public
Grievances and Pensions issued O.M. dated 29.10.1999, which reads as under:
“No. 45/3/99-P&PW(A)
Government of India
Ministry of Personnel Public Grievances & Pensions
Department of Pension & Pensioners Welfare
New Delhi, Dated the 29 October, 1999
Office Memorandum
Subject : Implementation of Government of India decision on the
recommendations of Vth CPC - Revision of Pension of Pre-1996
pensioners.
The undersigned is directed to refer to this Department’s
O.M. No. 45/10/98-P &PW(A) dated December 17, 1998 wherein
decision of the Government that pension of all pensioners
irrespective of their date of retirement shall not be less than
50% of the minimum of revised scale of pay introduced w.e.f.
1.1.96 of the post last held by the pensioner was communicated
clarifications have been sought by Departments/Ministries as to
whether Non-Practising Allowance (NPA) admissible as on 1/1/86
is to be taken into consideration after refixation of pay on
notional basis as on 1/1/86 and whether NPA is to be added to
the minimum of the revised scale while considering stepping up
consolidated pension on 1/1/96. NPA granted to medical officers
does not form part of the scales of pay. It is a separate
element although it is taken into account for the purpose of
computation of pension. This has been examined in consultation
with the Department of Expenditure and it is clarified that
N.P.A. is not to be taken into consideration after refixation of
pay on notional basis on 1/1/86. It is also not to be added to
the minimum of the revised scale of pay as on 1.1.1996 in cases
where consolidated pension/family pension is to be stepped up to
50% / 30% respectively, in terms of O.M. 45/10/98 -P&PW(A) dated
17.12.98.
2. This issues with the approval of Department of Expenditure,
Ministry of Finance vide U.O. No. 806/EV/99 dated 29.9.1999.
3. Hindi version will follow.
Sd/-
(GANGA MURTHY)
Director (PP)”
9. Dr. K.C. Garg and others, who had retired from Railways prior to
1.1.1996, challenged O.M. dated 29.10.1999 by filing applications under
Section 19 of the Administrative Tribunals Act, 1985 (for short, ‘the Act’)
and prayed that the same may be quashed and the respondents be directed to
include the element of NPA for the purpose of computing the pension payable
to them. Their applications were dismissed by the Tribunal vide order dated
5.10.2001. That order was set aside by the Division Bench of the Delhi High
Court in CWP No.7322/2001 – Dr. K.C. Garg and others v. Union of India and
others and connected matters. The High Court relied upon OM dated 7.4.1998
in which it was categorically mentioned that NPA shall be treated as part
of service benefits including retirement benefits and concluded that there
was no justification to exclude the element of NPA for the purpose of
calculating the pension. Paragraphs 5.0, 5.2 to 6.0, 10.3, 10.4, 11.1,
11.2, 11.3 and 12 of order dated 18.5.2002 passed by the High Court read as
under:
“5.0 History of grant of N.P.A. clearly shows that the same was being
granted in lieu of private practice. It was also granted having regard
to availability of less promotional avenue and late entry in the
service, N.P.A. was granted in terms of Fundamental Rule 9(21)(a)(i)
read with Fundamental Rule 9(21)(a)(ii), which read thus:-
"F.R. 9: Unless there be something repugnant in the subject of context
the terms defined in this Chapter are used in the Rules in the sense
here explained:-
xxx xxx xxx xxx
(21)(a) Pay means the amount drawn monthly by a Government servant as
(i) the pay other than special pay or pay granted in view of the
personal qualifications which has been sanctioned for a post held by
him substantively or in an officiating capacity or to which he is
entitled by reason of his position in a cadre:
(ii) overseas pay, special pay and personal pay; and
(iii) any other emoluments which may be specially classed as pay by
the President."
xxx xxx xxx xxx
5.2 It also appears that the Ministry of Health and Family Welfare
in terms of the instructions, as contained in the letter dated
07.04.1998, categorically stated that N.P.A. be treated to be a pay by
way of service benefits including retirement benefits. It is also
beyond any cavil of doubt that 25% of the basic pay was recommended
towards payment of N.P.A. by the 5th CPC, which was accepted by the
Government of India in terms of its circular letter dated 07.04.1998.
5.3 By reason of the aforementioned recommendations, an attempt had
been made to bring pre-01-01-1986 retirees and post-01-01-1986 at par
having regard to the fact that the rates of their pension were
slightly different. By reason of the said recommendation, the slab
system, which was prevailing thitherto having been given a go by and
in place thereof payment of 25% of the basic pay as N.P.A. w.e.f.
01.01.1996 was recommended. In other words, a revolutionary step was
taken by the 5th CPC by making recommendations so that the retiral
benefits is enhanced not only for pre-01-01-1986 retirees but also
post-01-01-1986 retirees at par.
5.4 In para 137.13 of its Report, the 5th CPC clearly stated that it
was desirable to grant complete parity in pension to all past
pensioners irrespective of the date of their retirement, but having
regard to the fact that the same was not found to be feasible and
having regard to the considerable financial implications, a suggestion
was made that the process of bridging the gap in the matter of payment
of pension would be fulfillled if certain additional reliefs be
granted in addition to the recommendations of the Fourth Central Pay
Commission (in short, '4th CPC’) in terms whereof the past pensioners
were granted additional relief in addition to the consolidation of
their pension.
5.5. Yet again in para 137.14 of its Report, the 5th CPC recommended
that as a follow up of their basic objective of parity, the pension of
all pre-01-01-1986 retirees should be updated by notional fixation of
their pay as on 01.01.1986 by adopting the same formula as for the
service benefits. Pursuant whereto, all the past pensioners of pre-01-
01-1986 were to be brought on a common platform so as to grant them
the benefit of the revision of pay scale as recommended by 4th CPC as
on 01.01.1986. It was further laid down that all pre-01-01-1986
pensioners, who had been brought on to the 4th CPC by notional
fixation of their pay and who had retired after 01.01.1986, the
recommendation was that the consolidated pension would not be less
than 50% of the minimum pay of the post as revised by the 5th CPC.
6.0 It is, therefore, evident that the 5th CPC recommendations were
to bring all the pensioners whether pre-01-01-1986 retirees or post-01-
01-1986 on a common platform. The recommendations in no uncertain
terms suggest that the payment of pension of pre-01-01-1986 retirees
and post-01-01-1986 retirees should be the same. The Central
Government admittedly acted in terms of the aforementioned
recommendations by determining the pension, which was not less than
50% of the minimum of their pay in the revised pay-scale of the post
held by the pensioners at the time of retirement w.e.f. 01.01.1986.
For the said purpose, the minimum of the pay revised in the 5th CPC of
the post concerned was determined were with 25% of the pay as N.P.A.
was added and 50% thereof had been taken as revised minimum pension as
per the qualifying service.
10.3 It is difficult for us to accept the contention that despite the
fact that N.P.A. shall form part of pay so far as post-01-01-1986
retirees are concerned, the same would not form part of pay despite
provisions in the Fundamental Rules so far as pre-01-01-1986 retirees
are concerned. The 5th CPC has taken into consideration, as noticed
hereinbefore, the history of grant of N.P.A. and wherefrom it is
evident that N.P.A. became part of pay.
10.4 It is not a case where cut-off date has been fixed. The Central
Government is entitled for the purpose of determination of pension
pursuant to the policy decision to fix a cut-off date. It is also true
that such a cut-off date cannot be held to be arbitrary and
irrational, as it was not picked out of a hat. However, in the instant
case, we are not concerned with any cut-off date, but we are concerned
with the question as to whether despite recommendations of the 5th
CPC, a discrimination can be made. The very fact that the Central
Government accepts that the emoluments would mean basic pay + N.P.A.
in view of its definition as existing in the Rule 9(21)(a)(i) of the
Fundamental Rules, there cannot be any reason whatsoever as to why
N.P.A. shall be considered to be a part of pay for post-01-01-1986
retirees and not for pre-01-01-1986 retirees.
11.1 We may, in this connection, notice that emoluments has been
defined in Rule 33 of CCS (Pension) Rules, 1972 in the following
terms:-
"The expression 'emoluments' means basic pay as defined in Rule
9(21)(a)(i) of the Fundamental Rules which a Government servant is
receiving immediately before his retirement or on the date of his
death and will also include Non Practising Allowance granted to the
Medical Officer in lieu of private practice."
Thus, even in terms of the aforementioned definition, N.P.A. would be
part of pay.
11.2 In D.S. Nakara and Ors. v. Union of India., it is stated:-
"42. If it appears to be undisputable, as it does to us that the
pensioners for the purpose of pension benefits form a class, would its
upward revision permit a homogeneous class to be divided by
arbitrarily fixing an eligibility criteria unrelated to purpose of
revision, and would such classification be founded on some rational
principle? The classification has to be based, as is well settled, on
some rational principle and the rational principle must have nexus to
the objects sought to be achieved. We have set out the objects
underlying the payment of pension. If the State considered it
necessary to liberalise the pension scheme, we find no rational
principle behind it for granting these benefits only to those who
retired subsequent to that date simultaneously denying the same to
those who retired prior to that date. If the liberalization was
considered necessary for augmenting social security in old age to
government servants then those who retired earlier cannot be worse off
than those who retired later. Therefore, this division which
classified pensioners into two classes is not based on any rational
principle and if the rational principle is the one of dividing
pensioners with a view to giving something more to persons otherwise
equally placed, it would be discriminatory. To illustrate, take two
persons, one retired just a day prior and another a day just
succeeding the specified date. Both were in the same pay bracket, the
average emolument was the same and both had put in equal number of
years of service."
11.3 Yet again in V. Kasturi v. Managing Director, State Bank of
India, Bombay and Anr., the Apex Court pointed that in D.S. Nakara's
case (supra) a distinction has been made between a new scheme and a
liberalized pension scheme. When a new scheme come into force, the
same may not apply to the persons who had retired prior thereto, but
when there is a revision in the existing scheme by way of upward
revision, the scheme should be applied.
12. For the reasons aforementioned, the impugned order cannot be
sustained, which is set aside accordingly. These writ petitions are
allowed. However, in the facts and circumstances of the case, there
shall be no orders as to cost.”
10. The aforementioned order of the Delhi High Court was challenged by
the respondents by filing special leave petitions, which were converted
into Civil Appeal Nos. 1972-1974/2003. During the pendency of the appeals,
other similarly situated doctors made representations for grant of benefit
in terms of the High Court’s order. Thereupon, the Government of India
made a reference to the Attorney General and sought his opinion on the
question whether judgment of the Delhi High Court was correct and should be
accepted. The Attorney General considered the relevant rules, the Office
Memorandums and gave detailed opinion, which reads thus:
“OPINION
Sub: Regarding the inclusion of Non Practising Allowance (NPA) to
Pensioners Doctors in the calculation of pension.
1. Doctors in the Central Government who retired prior to 01.01.1996
are aggrieved by the Office Memorandum dated 29.10.1999 issued by the
Government of India, Ministry of Personnel, Public Grievances and
Pension, Department of Pensions and Pensioners Welfare [hereinafter
referred to as MoPP] which inter-alia provides that Non-Practising
Allowance [NPA] is not to be taken into consideration after refixation
of their pay and as a result NPA is not to be added to the minimum of
the revised scale of pay as on 01.01.1996 in cases where pension is to
be stepped up to 50% in terms of the earlier O.M. dated 17.12.1998.
2. As per the Rule 9(21)(a)(i) of the Fundamental Rules, NPA forms a
part of the pay of a government doctor and is taken into account for
computing dearness allowance, entitlement of IADA for sanctioning
advances under GFRs, House Building Advance and other allowances as
well as for calculation of retrial benefits.
3. By an Office Memorandum dated 27.10.1997 issued by MoPP, the
Government decided to accept the modified parity formula while
implementing the recommendations of the Vth Pay Commission Government
servants who retired before 01.01.1986 [i.e. before the implementation
of the IVth Pay Commission] and those who retire before 01.01.1996
[i.e. before implementation of the Vth Pay Commission] were
sought to be brought at par by the notional fixation of pay of the
first category as of 01.01.1986 and thereafter consolidation of their
pension as on 01.01.1996.
4. A number of representations were received by the Government from
Government servants who retired prior to 01.01.1996 and they claimed
parity with government servants who retired after 01.01.1996. By
Office Memorandum dated 17.12.1998, issued by MoPP, the Government of
India sought to achieve parity between pre 01.01.1996 retirees and
post 01.01.1996 retirees. By the aforesaid O.M., it was provided that
pension/ family pension of pre 01.01.1996 retirees would be stepped
upto 50% / 30% of the minimum of the corresponding revised scale of
pay in respect of that post as on 01.01.1996. Thus, all retired
government officers retiring from a particular post were to be given
pension which was comparable to a large extent. This decision of the
Government finds some support from the judgment of the Supreme Court
in D.S. Nakara v. Union of India, AIR 1983 SC 130.
5. Like all retired government servants, government doctors of the
Central Health Scheme were also given benefit of stepping up of their
pension to 50% of the minimum revised scale of pay as on 01.01.1996 by
including NPA being granted to the government doctors in that scale of
pay and such stepped pension was in fact paid to them.
6. However, subsequently on 29.10.1999, as mentioned herein above, the
MoPP issued Office Memorandum making a technical distinction between
pay and scale of pay and provided that since NPA cannot be given while
stepping the pension up to 50%.
7. The government doctors who retire after 01.01.1996 would get
benefit of NPA as it forms a part of their pay. Hence, just on the
basis only of date of retirement, there would be wide disparity
between pension of government doctors, i.e. who retired prior to
01.01.1996 would get much less pension then those who retire after
01.01.1996.
8. The distinction between 'pay' and 'scale of pay' made out in the
Office Memorandum dated 29.10.1999 to deny benefit of NPA for the
purpose of stepping up of the pension to 50%, is purely technical and
mechanical distinction and does not take into account the special
position of NPA qua a Government doctor.
9. NPA is a matter of right of government doctor and is meant as a
compensation for denial of private practice. The scale of pay
prescribed...... department of the Government of India and does not
account the special feature of Central Health Service. In Central
Health Service, NPA de jure and de facto is a part of the scale of pay
as it is inevitably linked to the basic pay. Simply because NPA is not
formally included in the scale of pay of the government doctors and
taken as a separate element, it cannot be said that NPA has to be
ignored altogether for stepping up of pension. NPA is a separate
element only because scales of pay of government servants are of
general application and not meant for individual services. However, if
an element is inevitably a part of the pay, as NPA is, in effect it
has to be construed as a scale of pay.
10. Since, NPA for government doctors is a part of their pay, it would
be discriminatory if retired government doctors are denied benefit of
stepping up of their pension without reference to the NPA presently
given to serving doctors and those who retire after 01.01.1996. In
fact, denial of NPA to pre 01.01.1996 retired government doctors would
fall foul of the guarantee of equality under Article 14 of the
Constitution.
11. The fixation of pension and stepping up of the same to 50% of the
revised scale of pay for pre 01.01.1996 retirees as provided by the
Government of India in its Official Memorandum dated 17.12.1998 was
meant to achieve parity amongst all retired government servants,
including government doctors. The comparison of pension being paid to
the government doctors who retired prior to 01.01.1996 has to be made
with the pension to be paid to government doctors who retired after
01.01.1996. If the latter category is given benefit of NPA for
calculation of their pension, the former category cannot be denied the
same by reference to a general scale of pay governing all government
servants without considering the special feature of government
doctors.
12. The Delhi High Court in its order dated 18.05.2002 in CWP Nos.
7322, 7826 and 7878 of 2001 has quashed the Office Memorandum dated
29.10.1999. In the said order, the High Court has quite rightly
observed that the benefit sought to be given by the earlier OM dated
17.12.1998 was wrongly taken away by the OM dated 29.10.1999. The High
Court has observed that in view of the stated objectives of the
Government to provide parity in pension amongst government doctors,
NPA would have to be necessarily taken into account for stepping up of
pension to 50% of the revised scale of pay has been held to be ultra
vires the Constitution.
13. The Government of India has filed an SLP against the order of the
Delhi High Court dated 18.05.2002. The reason for grant of leave in
this case is the conflicting decisions of the Delhi High Court and the
Chennai Bench of the Central Administrative Tribunal on one hand and
the Principal Bench of the Central Administrative Tribunal, New Delhi
on the other. I have no hesitation in opining that the judgment of
Justice S.B. Sinha, now a judge of the Supreme Court is correct and
should be accepted in preference to the view of the Principal Bench of
the Central Administrative Tribunal, Delhi. Consequently steps will
have to be taken with regard to the pending Special Leave Petition.”
11. After considering the opinion of the Attorney General, the Prime
Minister accorded his approval for acceptance of the order of the Delhi
High Court in K. C. Garg’s case. As a sequel to this, I.A. Nos.16-18 were
filed for withdrawal of Civil Appeal Nos. 1972-1974/2003. The same were
allowed by this Court vide order dated 13.5.2005 and the appeals were
dismissed as withdrawn.
12. On 22.6.2005, the Department of Pension and Pensioners’ Welfare,
Ministry of Personnel (Public Grievances and Pension) issued instructions
for implementation of the order passed by the High Court in K.C.Garg’s
case. It was also proposed that O.M. dated 29.10.1999 may be withdrawn.
However, the Ministry of Finance did not agree with the latter part of the
proposal. Thereafter, permission of the Prime Minster being the Minster-in-
charge of the Department of Pension and Pensioners’ Welfare, Ministry of
Personnel (Public Grievances and Pension) was sought under Rule 12 of the
Government of India (Transaction of Business) Rules, 1961. On 29.7.2000,
the Prime Minister sanctioned the proposal for withdrawal of O.M. dated
29.10.1999. However, before the decision taken by the Prime Minister could
be translated into an order, this Court delivered judgment titled Col. B.
J. Akkara (Retd.) v. Government of India and others (2006) 11 SCC 709 in
the appeals and writ petitions filed by the doctors of defence services and
in the light of that decision, the Prime Minister approved the proposal of
the Department that O. M. dated 29.10.1999 may not be withdrawn.
13. Dr. G. D. Hoonka, who retired as Chief Medical Superintendent,
Central Railway, Jabalpur w.e.f. 30.4.1996 challenged the decision taken by
the Railways in the light of O.M. dated 12.11.1999 whereby NPA was not
treated as part of basic pay for the purpose of calculation of pension.
The Tribunal allowed the application filed by Dr. Hoonka. Writ Petition
No.2539/2003 filed by the Union of India and others was dismissed by the
Division Bench of the Madhya Pradesh High Court vide order dated 7.12.2004,
paragraph 8 of which reads as under:
“The Circular dated 13.04.1998 makes it clear that NPA will be counted
as 'pay' for all service benefits including retirement benefits. The
Circular dated 15.01.1999 does not contain anything to the contrary.
What is stated in the circulars dated 13.04.1999 (which states that
NPA granted to Railway Medical Officers is not to be added to the
minimum of the revised scales of pay, while giving effect to the
circular dated 15.01.1999) is merely a departmental clarification and
not a policy of the Government. The circular dated 12.11.1999 rightly
states that "It (NPA) is a separate element although it is taken into
account for the purpose of computation of pension". This refers to the
policy of the Government contained in the Circular dated 13.04.1998
which states that NPA will count as 'Pay' for all service benefits and
retirement benefits, which includes pension. Having said so, the
circular dated 12.11.1999 proceeds to say that NPA is not to be added
to the minimum of the revised scale of pay as on 1.01.1996 in cases
where consolidated pension is to be stepped up to 1999. The policy of
the government (Decision of the President) as stated in the Circular
dated 13.04.1998 that NPA will count as pay for all service benefits
including pension, is not altered or superseded by any subsequent
policy of the Government. In fact it is reiterated in the Circular
dated 12.11.1999. If that is so, the Circular dated 12.11.1999 cannot
under the guise of clarification, delete the benefit of the policy
decision contained in the circular dated 13.04.1998, when the said
policy continues to be in force. Once it is decided, as a policy, that
NPA will count as 'Pay' for all service benefits including retirement
benefits, the same cannot be excluded by way of clarification. The
position of course could have been different if the circular dated
15.01.1999 containing the policy relating to illegible of illegible
earlier policy stated in the circular dated 13.04.1998. “The policy of
the Government formulated by a decision of the President cannot
obviously be negated by a departmental clarification running contrary
to such policy. The effect of the clarification dated 12.11.1999 is
that in giving effect to the policy contained in the Government
circular dated 15.01.1999, the policy dated 13.04.1998 is to be
ignored. But so long as the
policy contained in the President's decision, given effect by the
circular dated 13.04.1998 continues to hold the field, its effect
cannot arbitrarily be directed to be ignored by a purported
clarification, which admittedly is not a decision of the
President.”
(emphasis supplied)
(reproduced from the appeal paper book)
14. SLP (C) No.14834/2006 filed against the order of the Madhya Pradesh
High Court was dismissed by this Court on 28.8.2006. Review Petition (C)
D.No.17280/2007 was also dismissed on 17.1.2008 as barred by limitation and
also on merits.
15. Dr. Naw Nath Prasad, who retired as Medical Director, LNM, Railway
Hospital, Gorakhpur, successfully invoked the jurisdiction of the Central
Administrative Tribunal, Patna Bench for adding NPA for the purpose of
calculating pension. O.A. No.215/2005 filed by him was allowed by the
Tribunal vide order dated 17.1.2006. The Union of India challenged the
order of the Tribunal in Civil Writ Jurisdiction Case No.11114/2006. The
Division Bench of the High Court referred to order dated 18.5.2002 passed
by the Delhi High Court in Civil Writ Petition No.7826/2001 – Retired
Railway Medical Officers Association v. Union of India and others, the
order passed by the Madhya Pradesh High Court in Dr. G. D. Hoonka’s case,
the circulars issued by the Government of India for implementing the order
passed in the two cases and observed:
“It is thus evident from a plain reading of the decisions of the
Courts deciding identical issues, and duly executed by the Ministry
of Railways (Railway Board) by issuing the aforesaid letter dated
25.8.2005, that non-practising allowance availed of by a serving
doctor of Indian Railway Service is entitled to the same to be taken
into account for the purpose of computation of post retirement
benefits.
The decision of the authorities declining the same to the present
respondent, the contest put up before the Tribunal and the present
writ petition at the instance of the authorities, is beyond our
comprehension, speaks of not only unreasonable approach,
seems to be arbitrary and verging on administrative tyranny,
and burdening the Tribunal and this Court with utmost unwanted
matters, and harassing the retired employee in the evening of his
life.”
16. SLP (C) No.15134/2010 filed against the order of the Patna High Court
was dismissed by this Court on 4.10.2010 in the following terms:
“We are not inclined to entertain the special leave petition, since
the subject matter thereof has been considered earlier. However, the
cost imposed by the High Court in the writ petition is quashed. The
special leave petition is dismissed except to the above extent.”
17. Dr. S.N. Srivastava, who retired from the post of Chief Medical
Superintendent (nomenclature of the particular railway has not been given
in the copy of order filed by the counsel for the appellants) w.e.f.
31.1.1996 filed Writ Petition No.1774(SB)/2004 before the Allahabad High
Court for issue of a mandamus to the respondents to re-fix his pension by
adding the element of NPA. He relied upon the order passed by the Madhya
Pradesh High Court in the case of Dr. G. D. Hoonka and pleaded that with
the dismissal of the special leave petition filed by the respondents, the
order passed in that case has become final and the same is binding on the
respondents. On behalf of the respondents, reliance was placed on the
judgment of this Court in Col. B. J. Akkara (Retd.) v. Government of India
and others (supra) and it was pleaded that the writ petitioner is not
entitled to any relief. The Division Bench of the Allahabad High Court
relied upon paragraphs 12 and 13 of the order passed by the Tribunal in Dr.
G. D. Hoonka’s case, referred to the judgment in Col. B. J. Akkara’s case
and allowed the writ petition by recording the following observations:
“It is pertinent to point out at this juncture that against the
judgment and order dated 9.5.2003 passed by the Central Administrative
Tribunal, Jabalpur in the matter of Dr. G.D.Hoonka, the Department
questioned the validity of the aforesaid judgment by filing writ
petition no. 2539 of 2003 and the Jabalpur High Court by a detailed
judgment refused to interfere with the order of the Tribunal and
dismissed the writ petition vide its judgment and order dated
7.12.2004. While dismissing the writ petition, the Jabalpur High Court
observed in paragraph 9 as under:-
"9. In fact, we find that when the question as to whether NPA is to be
taken as part of pay in regard to those who had retired prior to
1.1.1996, came up for consideration before the Delhi High Court in Dr.
K.C.Garg vs. Union of India (CWP 7322/2001) and connected cases
decided on 18.5.2002, the Railway Administration through their counsel
conceded in a reply to a query that NPA shall be taken to be a part of
pay for post 1.1.1996. Be that as it may."
Under these circumstances, it is very difficult for us to accept the
contentions of the Department and find force in the submissions
advanced by the Counsel for the petitioner that the petitioner is also
entitled for the benefit of the judgment rendered in Dr. G .D.
Hoonka's case, referred to above.”
18. Dr. K.C. Bajaj (one of the appellants in the appeals arising out of
SLP (C) Nos.3358-64/2011) filed O.A. No.1275/2006 for issue of a direction
to the respondents to add NPA for the purpose of calculating the pension.
The same was disposed of by the Tribunal with a direction to the
respondents to consider his case for grant of pension in terms of the
judgment in Dr. K. C. Garg’s case and pass a speaking and reasoned order.
However, by taking shelter of the judgment in B.J. Akkara’s case, the
Railway Board rejected his representation. O.A. No.1369/2007 filed by Dr.
K. C. Bajaj was dismissed by the Tribunal along with other similar
applications vide order dated 12.9.2008 by relying upon the judgment of
this Court in Col. B. J. Akkara’s case. The writ petitions filed by the
appellants questioning the order of the Tribunal were also dismissed by the
High Court.
19. These appeals were heard by different Benches on various dates. On
11.4.2013, the learned Additional Solicitor General produced the file
containing different opinions recorded by the learned Attorney General.
After perusing the file, the Court passed the following order:
“Further arguments heard, which remained inconclusive.
The file produced by the learned Additional Solicitor General contains
different opinions recorded by the learned Attorney General. In the
last opinion recorded in 2007, the learned Attorney General noted that
the files produced before him do not contain formal notification for
withdrawal of O.M. dated 29.10.1999.
However, from the judgment of this Court in Col. B.J. Akkara (Retired)
v. Government of India and others (2006) 11 SCC 709 which was decided
on 10.10.2006, it is borne out that an affidavit was filed on behalf
of the respondents on 1.8.2006 stating therein that Circular dated
29.10.1999 had been withdrawn in regard to the Civilian Medical
Officers who were petitioners in the writ petition filed by Dr. K.C.
Garg and others. It is also borne out from paragraph 23 of the
judgment that the Court deciding the matter had been informed that the
order passed by the Delhi High Court in C.W.P. Nos. 7322, 7826 and
7378 of 2001 Dr. K.C. Garg and others v Union of India and others had
not been challenged by the Union of India and the directions contained
in the High Court's order had been implemented.
All this, prima facie, shows that the parties appearing before the
Court had not placed the facts in a correct perspective and apparently
misleading statement was made in the affidavit filed on behalf of the
respondents that O.M. dated 29.10.1999 had been withdrawn in respect
of the petitioners in K.C. Garg's case.
The learned Additional Solicitor General should instruct his
assisting counsel to ensure that an affidavit of a senior officer of
the rank of Joint Secretary to the Government is filed clarifying the
stand of the Government. In the affidavit it should also be
indicated as to what steps were taken for compliance of the
direction given by the Prime Minister under Rule 12 of the Government
of India (Transaction of Business) Rules, 1961. The required affidavit
be filed within two weeks.
For further hearing, the cases be listed on 01.05.2013.”
20. In compliance of the direction given by this Court, Ms. Vandana
Sharma, Joint Secretary, Ministry of Personnel, Pension and Public
Grievances filed affidavit dated 24.5.2013. Thereafter, the counsel for
the parties made further arguments and judgment was reserved on 7.5.2013
with liberty to the parties to file written submissions.
21. While dictating the judgment, the Court found that the written
arguments filed on behalf of the parties contain additional facts which
were not brought to the notice of the Court during the course of hearing.
Therefore, by an order dated 2.7.2013, the case was ordered to be listed
for further arguments, which were heard on 24.9.2013 and judgment was again
reserved.
22. Shri Prashant Bhushan, learned counsel appearing for the appellants
in the appeals arising out of SLP (C) Nos.3358-64/2011 argued that the
judgments of the Delhi, Madhya Pradesh, Patna and Allahabad High Courts are
binding on the respondents because O.M. dated 29.10.1999 which was
challenged by Dr. K.C. Garg and others was quashed by the Division Bench of
the Delhi High Court vide order dated 18.5.2002 and though the respondents
had challenged that order by filing special leave petitions, a conscious
decision was taken by the Government to withdraw Civil Appeal Nos.1972-
1974/2003 and to implement the order of the Delhi High Court. Shri
Bhushan pointed out that the special leave petitions filed against the
orders passed by the Madhya Pradesh High Court and the Patna High Court in
the cases of Dr. G. D. Hoonka and Dr. Naw Nath Prasad were also dismissed
by this Court and argued that having implemented the orders of the High
Court in the cases of civilian doctors as well as doctors employed in the
Railways and Post and Telegraph Department, it is not open to the
respondents to rely upon the judgment in Col. B.J. Akkara’s case for
denying relief to the appellants. In support of this argument, Shri Bhushan
relied upon the judgments in Amrit Lal Berry v. Collector of Central
Excise, New Delhi and others (1975) 4 SCC 714 and K. I. Shephard and others
v. Union of India and others (1987) 4 SCC 431. He submitted that the
judgment in State of Maharashtra v. Digambar (1995) 4 SCC 683, to which
reference has been made in paragraph 25 of the judgment in Col.B.J.
Akkara’s case, has no bearing on these appeals because a conscious and
considered decision was taken by the Government of India to withdraw the
appeals filed against the order passed in the case of Dr. K.C. Garg and
others and the orders passed by the Madhya Pradesh and Patna High Courts
were implemented after dismissal of the special leave petitions. Shri
Bhushan also pointed out that question No.3 in Col. B.J. Akkara’s case was
decided by the two Judge Bench under a wholly erroneous impression that the
order passed by the Division Bench of the High Court in K.C. Garg’s case
was not challenged by the Union of India. Shri Bhushan also distinguished
the judgment in Col. B.J. Akkara’s case by pointing out that this Court had
not considered the impact of O.M. dated 7.4.2008 issued by the Government
in terms of the decision taken by the President that NPA shall count as pay
for all service benefits including retirement benefits.
23. Shri A. S. Chandhiok, learned Additional Solicitor General argued
that the issue raised in these appeals is no longer re integra and should
be deemed to have been decided against the appellants by virtue of the
judgment in Col. B. J. Akkara’s case. He emphasized that clarification
dated 11.9.2001 was issued by the Ministry of Defence in the light of O.M.
dated 29.10.1999 and in view of decision of question No.2 in Col. B. J.
Akkara’s case, the appellants cannot fall back upon O. M. dated 7.4.1998
and claim that NPA should be added to the basic pay for the purpose of
calculating the pension. The learned Additional Solicitor General argued
that dismissal of the special leave petitions filed in the cases of Dr. K.
C. Garg and others, Dr. G. D. Hoonka and Dr. Naw Nath does not have the
effect of conclusively deciding the issue relating to entitlement of the
appellants to get the benefits of the orders of the three High Courts
because this Court had not interpreted the relevant circulars and Office
Memorandums.
24. We have considered the respective arguments/submissions and carefully
scrutinized the record including the additional affidavits filed on behalf
of the respondents. We have also gone through the orders passed by the
Delhi, Madhya Pradesh, Patna and Allahabad High Courts.
25. The first question which merits consideration is whether the judgment
in State of Maharashtra v. Digambar (supra) can be relied upon for ignoring
the orders passed by the four High Courts, which have since been
implemented by the concerned departments/establishments. A reading of that
judgment shows that this Court had entertained subsequent special leave
petitions filed by the State questioning the order of the High Court
against the grant of compensation for illegal utilisation of their land
despite the fact that the special appeals filed against similar orders
passed by the High Court had already been dismissed. This Court took
cognizance of the fact that in some of the matters, the State Government
had not challenged the orders of the High Court and the special leave
petition filed in some other matters had been summarily dismissed and
proceeded to observe:
“Sometimes, as it was stated on behalf of the State, the State
Government may not choose to file appeals against certain judgments of
the High Court rendered in writ petitions when they are considered as
stray cases and not worthwhile invoking the discretionary jurisdiction
of this Court under Article 136 of the Constitution, for seeking
redressal therefor. At other times, it is also possible for the State,
not to file appeals before this Court in some matters on account of
improper advice or negligence or improper conduct of officers
concerned. It is further possible, that even where SLPs are filed by
the State against judgments of the High Court, such SLPs may not be
entertained by this Court in exercise of its discretionary
jurisdiction under Article 136 of the Constitution either because they
are considered as individual cases or because they are considered as
cases not involving stakes which may adversely affect the interest of
the State. Therefore, the circumstance of the non-filing of the
appeals by the State in some similar matters or the rejection of some
SLPs in limine by this Court in some other similar matters by itself,
in our view, cannot be held as a bar against the State in filing an
SLP or SLPs in other similar matter/s where it is considered on behalf
of the State that non-filing of such SLP or SLPs and pursuing them is
likely to seriously jeopardise the interest of the State or public
interest.”
26. This Court further observed that the special leave petition filed by
the State deserves to be decided on merits because the High Court was
wholly wrong in granting relief of compensation to all the writ petitioners
without considering their entitlement for such relief under Article 226 of
the Constitution. The Court noted that the award of compensation in such
matters would cast a burden of Rs.400 crores on the State and proceeded to
observe:
“Therefore, the fact that the State has failed to file appeals in
similar matters or this Court has rejected SLPs in similar matters,
cannot be held to be a total bar or a fetter for this Court to
entertain appeals under Article 136 of the Constitution against
similar judgments of the High Court where need to entertain such
appeals is found necessary to meet the ends of justice, in that, the
ambit of power invested in this Court under Article 136 allows its
exercise, wherever and whenever, justice of the matter demands it for
redressal of manifest injustice. When by an order, already adverted to
by us, a two-Judge Bench of this Court, has got referred the SLP out
of which the present appeal has arisen for being entertained and
decided on merits by a three-Judge Bench of this Court,
notwithstanding the rejection of SLPs by another two-Judge Bench of
this Court in similar matters, it has desired the exercise of this
Court’s wide power under Article 136 of the Constitution to meet the
ends of justice and remedy the manifest injustice caused to the State
by the judgment of the High Court under appeal, cannot be overlooked.”
27. In Col. B. J. Akkara’s case (paragraph 23), a two Judge Bench noted
that order dated 18.5.2002 passed by the Division Bench of the High Court
in Dr. K.C. Garg’s case and other connected matters had not been challenged
by the Union of India and was implemented by adding NPA to basic pay for
stepping up the pension in the case of Civilian Medical Officers who had
retired prior to 1.1.1996 and the submission made on behalf of the
respondents (paragraph 24) that circular dated 29.10.1999 had been
withdrawn only qua the Civilian Medical Officers who were petitioners in
the writ petitions filed before the High Court and not with regard to all
Civilian Medical Officers, referred to the proposition laid down in
Digambar’s case (paragraph 25), which has been extracted herein above and
held:
“The said observations apply to this case. A particular judgment of
the High Court may not be challenged by the State where the financial
repercussions are negligible or where the appeal is barred by
limitation. It may also not be challenged due to negligence or
oversight of the dealing officers or on account of wrong legal advice,
or on account of the non-comprehension of the seriousness or magnitude
of the issue involved. However, when similar matters subsequently crop
up and the magnitude of the financial implications is realised, the
State is not prevented or barred from challenging the subsequent
decisions or resisting subsequent writ petitions, even though judgment
in a case involving similar issue was allowed to reach finality in the
case of others. Of course, the position would be viewed differently,
if petitioners plead and prove that the State had adopted a “pick-and-
choose” method only to exclude petitioners on account of mala fides or
ulterior motives. Be that as it may. On the facts and circumstances,
neither the principle of res judicata nor the principle of estoppel is
attracted. The administrative law principles of legitimate expectation
or fairness in action are also not attracted. Therefore, the fact that
in some cases the validity of the circular dated 29-10-1999
(corresponding to the Defence Ministry circular dated 11-9-2001) has
been upheld and that decision has attained finality will not come in
the way of the State defending or enforcing its circular dated 11-9-
2001.”
28. However, the fact of the matter is that the Union of India did
challenge the order passed by the Delhi High Court in Dr. K. C. Garg’s case
and other connected matters by filing special leave petitions, which were
converted into Civil Appeal Nos.1972-1974/2003 and during the pendency of
the appeals, a conscious decision was taken by the Government of India not
to pursue the appeals and implement the order of the High Court. It is
neither the pleaded case of the respondents nor it has been argued before
us that the Government of India had taken decision to withdraw the appeals
field in the cases of Dr. K. C. Garg and others because the financial
implications were negligible or that the concerned officers were misled in
doing so on account of wrong legal advice. At the cost of repetition, we
consider it necessary to observe that during the pendency of the appeals,
the matter was referred to the Attorney General for his opinion whether the
judgment of the High Court is correct and the same should be implemented.
The Attorney General examined the matter keeping in view the relevant rules
and the policy decisions taken by the Government of India and opined that
the judgment of the High Court was correct and should be accepted in
preference to the view taken by the Tribunal. The issue was then
considered at the highest level of the Government and the Prime Minister
ordered implementation of the High Court’s order. Thereafter, the appeals
were withdrawn. It is a different thing that the proposal for withdrawal of
O.M. dated 29.10.1999 was shelved in view of the judgment in Col. B. J.
Akkara’s case. In other words, the Government of India had taken a well
considered decision not to pursue the appeals filed against the order of
the Delhi High Court and implement the same on the premise that the
proposition laid down therein was correct.
29. In view of the above discussion, we hold that the ratio of the
Digambar’s case cannot be invoked to justify the pick and choose
methodology adopted by the Union of India in resisting the claim of
similarly situated doctors that NPA payable to them shall be taken into
consideration for calculating the pension. Such an approach by the Union of
India is ex-facie arbitrary, unjust and has resulted in violation of
Article 14 of the Constitution.
30. The judgment in Col. B.J. Akkara’s case cannot be applied to the
appellants’ case because the circulars, which fell for interpretation in
that case and those under consideration in these appeals are different in
material aspect. By circular dated 7.6.1999, the Ministry of Defence
conveyed the decision of the President that “with effect from 1-1-1996,
pension of all armed forces pensioners irrespective of their date of
retirement shall not be less than 50% of the minimum pay in the revised
scale of pay introduced with effect from 1-1-1996 of the rank, held by the
pensioner”. The circular provided that the revision of pension should be
undertaken as follows in case of commissioned officers (both post-and pre-1-
1-1996 retirees):
“(i) Pension shall continue to be calculated at 50% of the average
emoluments in all cases and shall be subject to a minimum of Rs.1275
p.m. and a maximum of up to 50% of the highest pay applicable to armed
forces personnel but the full pension in no case shall be less than
50% of the minimum of the revised scale of pay introduced w.e.f. 1-1-
1996 for the rank last held by the commissioned officer at the time of
his/her retirement. However, such pension shall be reduced pro rata,
where the pensioner has less than the maximum required service for
full pension. [Vide clause 2.1 (a).]
(ii) Where the revised and consolidated pension of pre-1-1-1996
pensioners are not beneficial to him/her under these orders and is
either equal to or less than existing consolidated pension under this
Ministry’s letters dated 24-11-1997, 27-5-1998 and 14-7-1998, as the
case may be, his/her pension will not be revised to the disadvantage
of the pensioner (vide clause 4).”
31. When the implementing departments sought clarification on the issue
whether NPA admissible as on 1.1.1986 is to be taken into consideration
after re-fixation of pay on notional basis as on 1.1.1986 and the same is
to be added to the minimum of the revised scale while stepping up the
consolidated pension on 1.1.1996, the Ministry issued clarification vide
circular dated 11.9.2001 in the following terms:
“The undersigned is directed to refer to Ministry of Defence Letter
No. 1(1)/99/D(Pension/Services) dated 7-6-1999, wherein decision of
the Government that pension of all pensioners irrespective of their
date of retirement shall not be less than 50% of the minimum of the
revised scale of pay introduced with effect from 1-1-1996 of the post
last held by the pensioner was communicated….
NPA granted to medical officers does not form part of the scales of
pay. It is a separate element, although it is taken into account for
the purpose of computation of pension.
This has been examined in consultation with the Department of Pension
and Pensioners’ Welfare and the Department of Expenditure and it is
clarified that NPA is not to be taken into consideration after
refixation of pay on notional basis on 1-1-1986. It is also not to be
added to the minimum of the revised scale of pay as on 1-1-1996 in
cases where consolidated pension is to be stepped up to 50%, in terms
of Ministry of Defence Letter No. 1(1)/99/D (Pension/Services) dated 7-
6-1999.”
32. This Court treated circular dated 11.9.2001 as clarificatory in
nature and held that it neither amends nor modifies circular dated
7.6.1999.
The most striking difference between O.M. dated 7.4.1998 issued
by Department of Pension and Pensioners’ Welfare, Ministry of Personnel
(Public Grievances and Pension) and circular dated 7.6.1999
issued by the Defence Ministry is that the decision of the President
conveyed vide O.M. dated 7.4.1998 was that NPA shall count as pay for all
service benefits including retirement benefits but no such decision was
contained in circular dated 7.6.1999.
Therefore, the clarification issued
by the Ministry of Defence vide circular dated 11.9.2001 cannot be equated
with O.M. dated 29.10.1999 which had the effect of modifying the decision
of the President but was issued without his approval.
Unfortunately, the
Tribunal and the Division Bench of the High Court overlooked this vital
distinction between O.M. dated 7.4.1998 issued by the Ministry of Personnel
(Public Grievances and Pension), Department of Pension and Pensions’
Welfare and Circular dated 7.6.1999 issued by the Ministry of Defence and
mechanically applied the ratio of Col. B. J. Akkara’s case for deciding the
cases of the doctors, who served in Central Health Services, the Railways
and other departments of the Government. Therefore, the impugned order is
legally unsustainable.
33. In the result, the appeals are allowed, the impugned order of the
High Court as also the one passed by the Tribunal are set aside and the
applications filed by the appellants before the Tribunal are allowed in
terms of the prayer made. The respondents shall re-calculate the pension
payable to the appellants by adding the element of NPA. This exercise
shall be undertaken and completed by the concerned authorities within a
period of three months from today.
…………………………J.
(G.S.SINGHVI)
NEW DELHI; ………………………J.
NOVEMBER 27, 2013 (KURIAN
JOSEPH)
.
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