n Nos11757  11758 of 1984
Under Article 32 of the Constitution of India
WITH Civil Appeal No 1124 of 1985
PP Rao K Jagan Mohan Rao and Raju Ramachandran for the Petitioners
VC Mahajan Ms A Subhashini and RB Mishra for the Respondent
The Judgment of the Court was delivered by KASLIWAL J
The above writ petitions and appeal are disposed of by one single order as identical question of law are involved in these cases
In order to appreciate the controversy we would narrate the facts of the writ petitions
Shri Des Raj Bhatnagar Petitioner DES No 1 and Shri Ved Pal Seth Petitioner No2 were employees of the 359 Central Government
The petitioner No 1 after serving in various capacities in the Department of food of the Central Government from 24101941 to 3181971 29 years and 10 months was permanently absorbed in Food Corporation of India as Assistant on 1st September 1971 and retired from the Government service
The petitioner No 2 after serving the Government in various capacities for the period from 5111947 to 821972 20 years and 3 months was permanently absorbed on 921972 in Food Corporation of India as Sr Asstt
Manager and retired from the Government service
On absorption in the Food Corporation of India the petitioners were required to exercise either of the following two options a Receiving the pro rata monthly pension and death cum retirement gratuity as admissible under the rules and b Receiving the pro rata gratuity and a lumpsum amount in lieu of pension worked out with reference to commutation table obtaining on the date from which the pension was to be admissible and under the option order
The office of the Pay and Accounts Officer Ministry of Food and Agriculture determined the original pension payable to the petitioners per mensem
The petitioners were sanctioned original pensions in accordance with the provisions of the Central Civil Service Pension Rules 1972
In case of petitioner No 1 the original pension was determined at Rs 240 per mensem payable from 1st September 1971In case of petitioner No 2 the original pension admissible was determined at Rs287 per mensem payable from 921972
The petitioner No I received his pension  Rs240 per mensem for the period from 191971 to 29101972
Petitioner No 2 received his pension  Rs287 per mensem for the period from 921972 to 1681972
Under the above Rules maximum of one third of the amount of admissible pension could be commuted
However in the case of Government officers including Industrial Management Pool Officers who were opting for permanent absorption in Public Sector Undertakings an option was given to commute the full amount of their original pension
The petitioner No I and petitioner No 2 commuted their original pensions for a lumpsum of Rs35568 and Rs43601 on 30101972 and 1781972 respectively
360 The Third Central Pay Commission was required to make its recommendations in the matter of providing relief to Government pensioners
The Pay Commission in order to secure Government pensioners against the continuing erosion in the value of the rupees and to recommend appropriate measures for protecting the pension of Government servants from such erosion on account of the possible increase in the case of living in future and after having considered the matter recommended that irrespective of the amount of pension drawn by them pensioners should be given relief at the rate of 5 of their pension subject to a minimum of Rs5 per mensem and a maximum of Rs25 per mensem
The relief at those rates were recommended to be given to the Government pensioners as and when there was a 16 point rise in the 12 months average of the All India Working Class Consumer Price Index  1960 100
The relief for the first time at these rates was to be paid when the 12th monthly average of this index reached 216
The said recommendation made by the Pay Commission was duly accepted by the Central Government
The Ministry of Finance Office Memorandum No F 228 EVA75 dated 1321976 inter alia provided that where an officer on his retirement commutes a portion of his pension he is eligible for relief and ad hoc reliefs in pension on the full amount of original pension as admissible to him
Under the said OM the term Pension  includes for the purposes of ad hoc relief the commuted portion of pension if any
The case of the petitioners is that according to these Rules an officer who has commuted any part of this pension and an officer who has not opted for any commutation both receive the full quantum of relief and ad hoc relief on full amount of original pension
It has thus been contended that for the purposes of grant of the full benefit of relief or ad hoc relief the Rules do not make any distinction between an officer who has sought commutation of his original pension and one who has not sought any such commutation
The petitioner and other Government servants who opted for commutation of their original pension in accordance with the Rules are being arbitrarily and without just and reasonable cause are deprived of the relief and ad hoc relief on commutation in pursuance of the Office Memorandum dated 1321976
Though an officer who commutes one third of his pension gets relief and ad hoc relief on the basis of original amount of his pension but whereas an officer commutes whole of his original pension is deprived of the entire amount of the relief or ad hoc relief
The petitioners have thus contended that aforesaid Office Memorandum dated 1321976 is vitiated by an inherent discrimination and is violative of Articles 14 and 16 of the Constitution
361 The petitioners have further submitted that they are entitled to the aforesaid reliefs granted to all other Government pensioners and the amount of relief to which pensioners are entitled and has been denied to them under the impugned Office Memorandum dated 132
1976 works out to Rs 13592 and Rs 15040 in case of petitioner No 1 and petitioner No 2 respectively upto 2921984
The Ministry of Finance in their Office Memorandum No 28EV82 dated 10101983 has sanctioned the grant of relief and ad hoc reliefs to Government servants who retired prior to 10th September 1979  925 of their original pension subject to minimum of Rs93 and maximum of Rs463 with effect from 1st July 1983
This has been done by taking in view the decline in the purchasing power of the rupee and the original sanction being insufficient and meagre to sustain the pensioners
Apart from the above the petitioners have submitted that they are also entitled to the benefit of Liberalised Pension Formula of 1979which was introduced vide the Finance Ministry s Office Memorandum No F 1937EV79 dated 255 1979 in respect of the approved pensionable service rendered by them in the Central Government as admissible to other pensioners who retired from Government service between 1741950 to 3131979
The said Memorandum was made applicable only to those Government servants who retired from service on or after 3131979
However this Court in DS Nakara  Others vs Union of India  held that all Central Government pensioners governed by the Central Civil Service Pension Rules 1972 were entitled to pension wef
141979 as computed under the Liberalised Pension Formula irrespective of the date of their retirement
Placing reliance on the above decision it has been claimed that there should be no discrimination between the applicability of the Liberalised Pension Formula to pre 3131979 pensioners and there is no just and reasonable cause in denying such benefit to the petitioners under the impugned Office Memorandum No F 13EV83 dated 22101983
Clause 5 of the Office Memorandum dated 22101983 reads as under Central Government employees who got themselves absorbed under Central Public sector undertakingautonomous bodies prior to 141979 and have receivedor opted to receive commuted raise for 13rd of pension as well as terminal benefit equal to the commuted value of the 362 balance amount of pension left after commuting 13rd of pension are not entitled to any benefit under these orders as they were not Central Government pensioners as on 1479
In cases where only a portion of pension has been commuted the pension will have to be enhanced in accordance with these orders with effect from 141979
The above clause makes it clear that such Central Government employees who got themselves absorbed under Central Public Sector Undertakings prior to 141979 and opted to receive commuted raise for 13rd of pension as well as terminal benefit equal to the commuted value of the balance amount of pension left after commuting 13rd of pension were not entitled to any benefit as they were not Central Government pensioners as on 141979
An identical writ petition No 10681987 under article 32 of the constitution was filed on behalf of the Welfare Association of absorbed Central Government Employees in Public Enterprises and this Court dismissed the said writ petition on April 12 1990
In the said writ petition benefit of Judgment of this Court in Common Cause a Registered Society  Ors
vs Union of India   was claimed but the same was negatived by making a distinction that the Writ Petition Common Cause was on behalf of the Government servants who had commuted their pension partially and this Court for the reasons indicated in the judgment came to hold that on the expiry of 15 years from the date of commutation the entire pension revived
The petitioners were persons who had at the time of retirement from Government service and entering into public sector had taken the advantage of commuting the entire pension
They certainly belong to a class different from those whose case was before this Court at the instance of the common cause in Writ Petition Nos
1955 61 of 1983
It was further held in the above case that the commutation does bring certain advantages to the committees and the class of Government officers whom the petitioner seeks to represent have derived such benefits  We find no reason to take a different view
The commutation brings about certain advantages
The commuting pensioner gets a lumpsum amount which ordinarily he would have received in the course of his spread over period subject to his continuing to live
Thus two advantages are certainly forthcoming out of commutation 1 availability of a lumpsum amount and 2 the risk factor
In the present case the petitioners had not only got 13rd of their pension commuted but exercised the option of getting the entire pension commuted and in lieu thereof got a lumpsum
Such persons cannot fall in 363 the category of Central Government pensioners for the purposes of getting benefit of Liberalised Pension Rules which can be made applicable only to Central Government Pensioners
It is no doubt correct that the family pension has been allowed in case of the persons like the petitioners but that does not make them entitled to get any benefit given to the pensioners on account of the liberalised Pension Rules taking note of the fallen value of the rupee
It was contended by Mr Rao on behalf of the petitioners that the petitioners are not claiming any pension but their contention is that the Liberalised Pension Rules which given benefit to those pensioners who had got their 13rd pension commuted should be granted to the petitioners by awarding lumpsum after increasing their pension and calculating such amount in proportion to the increased pension
We find no force in this contention as the petitioners fall in a different class altogether and are not entitled to claim any benefit granted to Central Government pensioners
After getting a lumpsum in lieu of entire pension they do not fall in the class of Central Government pensioners and are not entitled to any benefit granted to Central Government pensioners
The case of such Central Government pensioners who got their 13rd pension commuted also fall in a different class in as much as they get 23rd pension and after 15 years of such commutation or having attained the age of 70 years whichever was later they become entitled to full pension
Petitioners on the other hand were not entitled to any pension after having received the lumpsum amount in lieu of pension being commuted and having opted to receive such amount in lumpsum at the time of entering the service in Public Sector Undertaking
In the above mentioned civil appeal the legal question is identical except that the appellant in this case became a pensioner of the Central Government wef
141977 and the pension determined as payable to him was Rs609 per month and the same was got commuted by the appellant for a lumpsum amount on and from 781978
The appellant had exercised the option for absorption in Steel Authority of India Limited SAIL a Public Sector Enterprise
The Writ Petition filed by him before the High Court of Delhi was dismissed on 2581982
The appellant then filed a SLP against the said order
This Court had granted special leave on 2531985 and had given a direction to hear the appeal alongwith the writ petition Nos 11757  11758 of 1984
In the result we find no force in all these cases and the same are dismissed with no order as to costs
RP Petitions and Appeal dismissed


Summary:
The appellants are manufacturers of Polyester fibre yarn
They obtained a contract from the Imperial Chemical Industries Singapore for the supply of the said yarn and the said concern had agreed to supply to the appellants free of cost the di methyl terephthalate DMT D required for the manufacture of Polyester staple fibre yarn
The DMT was required to be converted into polyester fibre blended with viscose indigenously and shipped to a customer of the ICI in Sri Lanka
The appellant assessees obtained customs clearance permits for import of 392 tons of DMT and also of 178 tons of viscose stable fibre
The appellants also obtained permission to convert the imported DMT into polyester fibre under customs bond
The appellants imported the DMT and paid the customs duty in respect thereof Section 75 of the empowers the Central Government to allow the drawback of the duties of customs chargeable under the Act on any imported materials of a class or description in the manufacture of such goods in accordance with and subject to the rules under sub section 2
There is an identical provision in section 37 of the Central Excises  Salt Act 1944 enabling grant of draw back of the excise duty paid in relation to such manufacture
The Central Government framed the Customs and Central Excise Duties Drawback Rules 1971 enabling drawback being availed of in relation to customs as well as in relation to duties of central excise
Schedule II to the notification listed the items the export of which entities an assessee to avail of the drawback facility
DMT as such was not included in the notification in respect of which drawback could have been availed of by the assessees
The assessee therefore made an application to the Ministry of Finance on 2331977 requesting that since it had paid customs duty on DMT it was entitled to its drawback more 289 particularly when its request for the manufacture of the polyester fibre under customs bond had been declined by the customs authorities
The application filed by the appellants was rejected bY the Central Government on 1231978 though on a representation made by the Members of the Association of manufacturers of Polyester staple fabric a notification had been issued on 2876 under Section 25 of the Customs Act B exempting DMT from Customs duty
The appellant thereupon filed writ petition in the Delhi High Court which was dismissed by the High Court
Hence these appeals
Dismissing the appeals but recommending to the Central Government to consider the case of the appellants on equitable grounds whether the relief could be granted to it this Court HELD Though Section 75 of the and Section 37 of the Central Excises  Salt Act 1944 empower the Government to provide for the repayment of the customs and excise duties paid by individual manufacturers also the rules as framed rule 3 in particular provide only for a refund of the average amount of duty paid on materials of any particular class or description of goods used for the manufacture of export goods of that class or description by manufacturers generally except to the extent prescribed under rule 7
30OA B
The rules do not envisage a refund of an amount arithmeticaly equal to the customs duty or central excise duty which may have been actually paid by an individual importer cum manufacturer
If that had been the statutory intendment it would have been simple to provide that in all cases where imported raw materials are fully used in the manufacturers of goods which are exported the assessee would be entitled to a draw back of the customs or excise duties paid by him for the import or on the manufacture
300C There is no controversy that in this case the goods exported fall under item 25
R was sought to be contended that the goods fall under sub item 2501 but this is clearly untenable
Sub item 2501 represents a residuary category which will not be attracted to the goods which clearly fall under sub item 2502
The notification prescribes different amounts of drawback under this item depending on the composition of the yarn and the nature of its contents
It specifies an amount of Rs4315 per kg
as the relief by way of drawback available against the goods with which we are concerned which fall under clause b of item 2502
30OH 301B 290 The High Court was right in concluding that the rate of drawback in respect of the goods in question was fixed after taking into consideration the aspect of the customs duty payable in respect of DMT and that a conscious decision was taken that no relief in this respect should be granted as DMT was available in the country itself
It cannot therefore be said that this is a case where the fixation is contrary to the terms of rule 3 and that the assessee s application for determination of a rate in his case should be taken as an application under rule 6
303B Rule 6 is also inapplicable for the reason that an application under rule 6 should be made before the export of the manufacturer s goods which does not seem to be the case here
303C