* IN THE HIGH COURT OF DELHI AT NEW DELHI/ % ludament Reserved On: 24^'^ lulv. 2010 ludament Delivered On: 16^'^ August. 2010 W.P.(C) 8978/2009 Dr.SHUNILA MALIK & ORS. Petitioners Through: Mr.Prashant Bhushan, Advocate with Mr.Sumeet Sharma and Mr.Bhanu Sood, Advocate Versus UOI & ANR. Respondents Through: Mr.V.S.R.Krishna, Advocate for R-1 Mr.R.N.Singh, Advocate for R-2 CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAIOG. I. For orders, see W.P.(C) No.8973/2009. (PRADEEP NANdWjOG) JUDGE (MOOrCHAND'GARG) JUDGE AUGUST 16, 2010 mm / dk Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified I) * tN THE HIGH COURT OF DELHI AT NEW DELHI % ludament Reserved On: 24^" lulv. 2010 ludament Delivered On: 16^^ August 2010 + W.P.(C) 8973/2009 DR.K.C.BAJAJ & ORS. Petitioners Through: Mr.Prashant Bhushan, Advocate with Mr.Sumeet Sharma and Mr.Bhanu Sood, Advocates Versus DO! & ANR. Respondents Through: Mr.V.S.R.Krishna, Advocate for R-1 Mr.R.N.Singh, Advocate for R-2 W.P.(C) 8968/2009 DR.DALIP SINGH RAWAT & ORS. Petitioners Through: Mr.Prashant Bhushan, Advocate with Mr.Sumeet Sharma and Mr.Bhanu Sood, Advocates Versus UOI & ANR. Respondents 4Through: Mr.V.S.R.Krishna, Advocate for R-1 Mr.R.N.Singh, Advocate for R-2 W.P.(C) 8969/2009 DR.VEENA WADHWA & ORS. Petitioners Through: Mr.Prashant Bhushan, Advocate with Mr.Sumeet Sharma and Mr.Bhanu Sood, Advocates Versus UOI & ORS. Respondents Through: Mr.V.S.R.Krishna, Advocate for R-1 Mr.R.N.Singh, Advocate for R-2 W.P.{C)/No.8973/2009 & Connected Matters Page 1 of 5S W.P.tCl 8974/2009 DR.R.N.KAPUR & ORS. P6tition6rs Through: Mr.Prashant Bhushan, Advocate with Mr.Sumeet Sharma and Mr.Bhanu Sood, Advocates Versus UOI & ORS. Respondents Through: Mr.V.S.R.Krishna, Advocate for R-1 Mr.R.N.Singh, Advocate for R-2 W.P.(C) 8975/2009 DR.MRS.RENUKA JOLLY & ORS. Petitioners Through: Mr.Prashant Bhushan, Advocate with Mr.Sumeet Sharma and Mr.Bhanu Sood, Advocates Versus UOI & ANR. Respondents Through: Mr.V.S.R.Krishna, Advocate for R-1 Mr.R.N.Singh, Advocate for R-2 W.P.(C) 8976/2009 DR.BIMLA GOULATIA & ORS. Petitioners Through: Mr.Prashant Bhushan, Advocate with Mr.Sumeet Shamra and Mr.Bhanu Sood, Advocates Versus UOI & ORS. Respondents Through: Mr.R.N.Singh, Advocate for R-2 W.P.(C) No.8973/2009 & Connected Matters Page 2 of 55 (7 W.P.(C) 8977/2009 Dr.S.C.SINHA & ORS. Petitioners Through: Mr.Prashant Bhushan, Advocate with Mr.Sumeet Sharma and Mr.Bhanu Sood, Advocates Versus UOI & ANR. Respondents Through: Mr.V.S.R.Krishna, Advocate for R-1 Mr.R.N.Singh, Advocate for R-2 W.P.(C) 8978/2009 Dr.SHUNILA MALIK & ORS. Petitioners Through: Mr.Prashant Bhushan, Advocate with Mr.Sumeet Sharma and Mr.Bhanu Sood, Advocate Versus UOI & ANR. Respondents Through: Mr.V.S.R.Krishna, Advocate for R-1 Mr.R.N.Singh, Advocate for R-2 W.P.fC) 10928/2009 Dr.SMT.USHA GOEL DED. THR. HER LEGAL HEIR AND HUSBAND DR.O.P.GOEL Petitioner Through: Mr.Puram Singh, Advocate for Mr.Shalini Kumar, Advocate Versus UOI & ORS. nnnnn Respondents Through: Mr.V.S.R.Krishna, Advocate for R-1 Mr.R.V.Sinha, Advocate for UOI W.P.(C) No.8973/2009 & Connected Matters Page 3 of 55 W.P.(C) 11160/2009 DR.N.K.AGGARWAL Petitioner Through: Mr.Puram Singh, Advocate for Mr.Shaiini Kumar, Advocate Versus UOI & ORS. Respondents Through: Mr.R.V.Sinha, Advocate for UOI Mr.V.5.R.Krishna, Advocate for Railways W.P.(C) 11238/2009 SHANTI SEN & ANR. Petitioners Through: Mr.Gyan Prakash, Advocate Versus UOI & ORS. Respondents Through: Mr.A.K.Bhardwaj, Advocate for UOI W.P.(C) 11716/2009 DR.(MRS.) VIMLA K.AJWANI Petitioner Through: Mr.Gyan Prakash, Advocate Versus UOI Respondent Through: Mr.R.V.Sinha, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? MOOL CHAND GARG. I. 1. This batch of writ petitions (15 in numbers) have been filed by doctors, who retired from services prior to 01.01.1996 and who are W.P.(C) No.8973/2009 & Connected Matters Page 4 of 55 272 in numbers; majority of them having worked with Railways, few in the Directorate of Health Services, Delhi, one as Professor of Maulana Azad Medical College and the other one as Director General, Employees State Insurance Corporation. The writ petition arises out of a judgment delivered by the Full Bench of the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as 'the Tribunal') in OA No. 1927/2006 along with 14 other connected OAs dated 12.09.2008 whereby the Full Bench dismissed the O.A.s seeking inclusion of Non Practicing Allowance (for short 'NPA') as part of minimum pay as on 01.01.1996 for calculation of pension payable to them in terms of 5'^ Central Pay Commission recommendations directing that those who retired prior to 01.01.1996 will be treated alike regarding calculation of their pension as on 01.01.1996 by allowing the same fitment weightage as may be allowed to the serving employees. However, consolidated pension will not be less than 50% of the minimum revised scale of pay of the post held by the pensioner at the time of retirement. These recommendations were accepted by the Government and notification dated 17.12.1998 to this effect was issued. 2. It is the case of the petitioners that while doctors who retired after 01.01.1996, got pension based upon the calculation of 50% of their basic pay and also by inclusion of 50% of NPA which is calculated at the rate of 25% of the basic pay, the petitioners who are retirees prior to 01.01.1996 does not get the benefit of inclusion of 50% of NPA as per the eligibility of the retirees who retire after 01.01.1996. This creates a discrimination qua them for the purpose of calculating the pension even though, the Government of India as per recommendations of the 5"^ Pay Commission wanted equivalence of pension to the extent of 50% of the minimum of the revised scale of pay w.e.f. 01.01.1996 even for the petitioners who form batch of retirees prior to 01.01.1996. 3. It has been submitted that the petitioners are covered by the decision given by a Division Bench of this Court in Dr.K.C. Garp & Ors. Vs. Uninn of India & Ors. C.W.P. 7322/2001 and connected W.P.(C) No.8973/2009 & Connected Matters Page 5 of 55 "7^ cases decided on 18.05.2002 by a Division Bench of Jabalpur High Court in Union of India & Ors. Vs. Dr.G.D.Hoonka, Retd. & Ann, W.P.(C)2539/2003 decided on 07.12.2004. It has also been submitted that the SLP filed against the judgment of both the cases stand dismissed as withdrawn and therefore the decision given in those cases has attained finality. It is further submitted that the Government of India has even implemented the decision in Dr.Garg's Case and Hoonka's Case and, therefore, by not granting a similar benefit to the petitioners they are violating Article 14 of the Constitution of India. In these cases benefit of NPA (as applicable on 01.01.1996) has been considered as inclusive of pay for the purpose of calculation of pension. It has been submitted that the judgment given in Col.B.I. Akkara (Retd.) Vs. Government of India & Ors. (2006) 11 see 709 relied upon by the Tribunal while deciding the matters against the petitioners, is not applicable to the petitioners in the peculiar facts as is sought to be addressed before us. 4. The contention raised before the Tribunal was that in view of Dr.K.C.Garg's case and Hoonka's case, the issue with regard to inclusion of NPA in the basic pay as on 01.01.1996 even in respect of petitioners so as to calculate their pension at the rate of 50% was no more res Integra. 5. Initially the cases filed by the petitioners before the Tribunal were disposed of with a direction to the concerned authorities to dispose of their representation within the time specified whereas in some of the cases it was ordered that OAs be treated as representations. The representations were rejected by the authorities and thus applicants again filed OA 2295/2007 and OA No. 462/2007 for re-fixation of their pay. On the basis of B.j. Akkara's case, both the said petitions were dismissed. The Kolkata Bench of the Tribunal in Dr. Shlvoada Ghosh and 37 Others Vs. UOI & Ors.. O.A. No. 475/1006 (hereinafter referred to as Ghosh's case) despite making reference to Akkara's case granted relief to the applicants before them and directed inclusion of NPA while fixing W.P.(C) No.8973/2009 &. Connected Matters Page 6 of 55 0^ the pension and the same promoted the Division Bench of the Tribunal to refer the matter to the larger Bench. 6. The larger Bench vide impugned order while dealing with the case of Dr.K.G. Garg and G.D. Hoonka and the orders passed by the Hon'ble Supreme Court in Akkara's case observed:- (i) The decision in Dr.K.G. Garg's case and Hoonka'scase would not come to the rescue of the petitioners in view of the decision of the Supreme Court in Akkara's case to the same effect would be the decision of the Kolkata Bench in Ghosh's case. (ii) The order of the Hon'ble Supreme Court dismissing the Civil Appeal as withdrawn is not a decision on reasons and therefore cannot be treated as precedent under Article 141. 7. At this stage, it would be appropriate to take note of the submissions made by Mr.Prashant Bhushan, learned counsel for the petitioners that as per Rule 49 of the CCS (Pension) Rules, 1972 (hereinafter referred to as 'the Rules') the amount of pension has to be calculated at 50% of the average emoluments to which a Civil Servant is entitled. The expression 'average emoluments' as per rule 33 of the Rules means: "The expression 'emoluments' means 'basic pay' which, as defined in Rule 9(21)(a)(l) of the Fundamental Rules means as what a Govt. Servant is receiving immediately before his retirement or on the date of his death and wiii also include non practicing allowances granted to the medical office in lieu of private practice." 8. It is further stated that as per Rule 9(21)(a)(i) of the Fundamental Rules 'Pay' means the amount drawn monthly by the Government servant as: (i) The pay, other than special pay or pay granted in view of his personal qualification, 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; and (ii) Overseas pay, special pay and personal pay; and W.P.(C) No.8973/2009 & Connected Matters Page 7 of 55 (iii) Any other emoluments which may be specially classed as pay by President. 9. It is also submitted that as mentioned in Rule 7(D) of the Central Civil Service (Revised Pay) Rules, 1997 which are applicable to all the Government doctors who have elected to get their pay revised w.e.f. 01.01.1996. As per Rule 7(D) also, NPA is not to be included at the time of calculating 'basic pay' as it is a separate element altogether. The Rule specifically says that the NPA will be drawn by the Government Doctors in addition to the basic pay which they are drawing. The relevant portion of the Rule 7(D) is quoted hereunder: "7. Fixation of initial pay in the revised scale (1) (A) to (C) (D) in the case of the medical officers who are in the receipt of the non-practicing allowance, the pay in the revised scale shall be fixed in accordance with the provisions of Clause (A) above except that in such cases the term "existing emolument" shall not include NPA and will comprise only the following:- (a) the basic pay in the existing scale; (b) dearness allowance appropriate to the basic pay and non-practicing allowance admissible at the index average 1510 (1960=100) under the relevant orders; and (c) the amount of first and second installments of the interim relief admissible on the basic pay in the existing scale and non-practicing allowance under the relevant orders. And in such cases, non-practicing aliowance at the new rates shaii be drawn in addition to the pay so fixed in the revised scaie." 10. On the strength of the aforesaid rules it has been submitted that NPA is clearly a part of pension for retired medical officers as per the aforementioned rules which are of statutory nature and have received presidential assent. It is further stated that in accordance with the CM dated 07.04.1998, the President of India has declared that for all the Central Health Services Officers, NPA W.P.(C) No.8973/2009 & Connected Matters Page 8 of 55 will count as part of their pay for all service benefits including retirement benefits hitherto. It is thus, submitted that as per the aforesaid rules NPA is not part of the basic pay nor it is a part of basic pension, it is a separate element to be paid @25% of the basic pension fixed after orders of Government on S'*" CPC recommendation came into force. 11. It would be relevant to mention here that all the petitioners in the present case had opted for the revised pay scale and their pay was accordingly revised w.e.f. 01.01.1996. 12. Mr.Bhushan also submitted that initially the NPA was granted at a fixed rate, in accordance to the rank held by the Government doctor, and was revised from time to time by the successive pay commissions. The Pay Commission, however, revised the whole formula of calculating NPA as per which the NPA was now to be calculated at 25% of the basic pay of the Government doctor. The 5"" Pay Commission recommended that w.e.f. 01.01.1996, the pension of al l retirees irrespective of the date of retirement shall not be less than 50% of the minimum pay in the revised pay scale of the post held by them at the time of retirement and that the NPA will be granted to the doctors at 25% of the basic pay of the Government doctor. The 5''" Pay Commission recommended that w.e.f. 1.1.1996, the pension of all retirees, irrespective of the date of retirement shall not be less than 50% of the minimum pay in the revised pay scale of the post held by them at the time of retirement and that the NPA will be granted to the doctors at 25% of their basic pay. The above-said recommendation of the 5*^" Pay Commission was thereafter adopted by the Ministry of Health and Family Welfare vide their OM dated April 7, 1998 and the NPA to the doctors belonging to the Central Health Services was fixed at the rate of 25% of the basic pay and it was also declared that this NPA will count as part of the pay of the Central Health Services Officers for all service benefits including retirements benefits hitherto. It would be relevant to mention here that the abovementioned OM dated April 7, 1998 also received the presidential assent. W.P.(C) No.8973/2009 & Connected Matters Page 9 of 55 13. It Is submitted by Mr. Bhushan that in view of the aforesaid Rules notification dated 29.10.1999 (impugned notification) issued without the approval of the President of India wherein they stated that benefit of grant of NPA will not be extended to the Government doctors who retired prior to 01.01.1996 and will only be given to doctors who retired post 01.01.1996 clearly discriminated between pre and post 01.01.1996 retirees in complete violation and disregard of fundamental rules and pension rules. This decision is in the teeth of the judgment of the Supreme Court in the case of D.S.Nakara & Ors. Vs. Union of India AIR 1983 Supreme Court 130. It is also the submission that not only there wil l be two classes created between the post 1996 retirees and pre 1996 retirees but also another class will be created of all those who are beneficiaries of Dr. Garg's case and Hoonka's case which has attained finality in view of the fact that the SLP filed against those two cases stand withdrawn. 14. The above mentioned notification was initially challenged by one Dr.K.C.Garg and 73 other doctors before this Court. This Court vide its final judgment and order dated 18.05.2002 quashed the impugned notification in view of the provisions of Pension Rules and Fundamental Rules as aforesaid. This Court has taken a view that the impugned notification was bad in law and the same was discriminatory between pre and post 1996 retirees. 15. It has also been submitted that in fact the SLPs which were converted into Civil Appeals No.1972/2003 was withdrawn by the Union of India on the basis of a written opinion given by the Attorney General of India wherein he stated that it was incumbent upon the Union of India to include NPA for fixation of pensionary benefits. It has also been submitted that Central Administrative Tribunal while distinguishing the judgments in Dr.K.C.Garg's case and Hoonka's case in the light of Akkara's case was bound to also consider law laid down by the Supreme Court in Amrit Lai Beri \/s. Collector Central Excise. SLR 1975 (1) 153 wherein the Apex Court has been pleased to lay down that once a Government servant W.P.(C) No.8973/2009 & Connected Matters Page 10 of 55 obtains a declaration of law from a court of law, others placed in a similar situation can depend upon the sense of responsibility of the respondents to extend the benefit of the judgment to them also without forcing them to approach the Court for obtaining similar declarations. This is also the view taken by the Supreme Court in K.I. Shepherd and Ors. Vs. Union of India & Ors. AIR 1988 Supreme Court 686. 16. Sh.Bhushan also tried to make an attempt to submit that Dr.Akkara's case does not apply to the petitioners herein by submitting that Akkara's case dealt with pensionary benefits of doctors belonging to the defence services whereas the petitioners before this Court are doctors who were employed in civil services. It has been submitted that in Akkara's case, the Court was also influenced by the Rules as were applicable to the persons working in Ministry of Defence. The Supreme Court had themselves relied upon the judgment in Dr.K.C.Garg's case to have a notification issued in their favour. Even though it was also held that the respondents will be in a position to resist subsequent petitions seeking extension of benefit in public interest. However, it is submitted that the Supreme Court did not deal with the merits in Dr.K.C.Garg's case nor did it overrule the same. Reference is also made by the petitioners to the judgment in Union of India Vs. S.P.S. Vains (Retd.) & Ors.. 2008 (12) SCALE 360 where it has been held that the discrimination between pre and post 1996 retired Major Generals was not correct as the "Fixation of a cut-off date as a resuit of which equais were treated as unequais is wholly arbitrary and vioiative ofArticie 14." 17. One of the basic argument to highlight the inequalities in the two class of the pensioners retiring prior to 01.01.1996 and retiring after 01.01.1996 with respect to inclusion/ exclusion of NPA, the learned counsel for the petitioners submits that even, the factual basis on which the Supreme Court proceeded with was different from the situation in the present case as, in the present case, the petitioners have not received the NPA components of their pension W.P.(C) No.8973/2009 & Connected Matters Page 11 of 55 at all and there is no question of double payment of pension. In this regard they have given tabulation of Dr.Bajaj's pension, the petitioner in W.P.(C).8973/2004 as follows: Basic Pay at retirement Rs.l900+Rs.500(NPA) Revised basic pay (4"" CPC) Rs.5000+Rs.500(NPA) Fixation of Pension w.e.f.January 1,1996 under the 5'^'' CPC Dearness Relief (96% of pay + NPA) Rs.5280 (i) First Interim Relief Rs.lOO(ii) Second Interim Relief Rs.550(iii) Fitment Weightage Rs.2000(iv) Total(revised basic pay, 5'*^ CPC) Rs.12930 (NPA not included) (Basic pay 4'^" CPC (not including NPA) +1 + ii + iii + iv Revised basic pension at 50% of basic pay Rs.6465 (NPA not included) Pension received Rs.6469 18. It has been submitted that the aforementioned calculations, as well as information regarding the pension details of Dr.Bajaj as provided by the Pay and Accounts Officer, Railway Board, Ministry of Railway, New Delhi, the component of NPA, though included while calculating Dearness and Interim relief, has not itself been included as a component of the pay while fixing pension. It is further submitted that as per the S'*" CPC, NPA is to be granted at a rate of 25% of the revised basic pay, i.e., 25% of Rs.12930/- which would amount to Rs.3232.5 and hence as per the 5*^^ CPC a person who has completed 33 years of service is entitled to a total of Rs.6465/- (50%of revised basic pay) + Rs. 1616.25 (50% of 25% of the revised basic pay as the NPA component) which would amount to Rs.8081.25. Dr.Bajaj had completed only 30 years of service and hence would be entitled to 30/33 of Rs.8081.25 which amounts to Rs.7346.6 as opposed to Rs.6469/- which he received. 19. Flowever, at this juncture it would be relevant to take note of the submissions made on behalf of the respondents denying this factual averment made by the petitioners. The respondents have relied upon the calculation of pension in the case of Dr.Shanti Sen who is also a petitioner in the batch of the petitions. In this regard W.P.(C) No.8973/2009 & Connected Matters Page 12 of 55 they have pointed out that the fixation of pension in the case of Dr.(Mrs.) Shanti Sen which is in accordance with the Rule 49(2)(a) of CCS(Pension) Rules. Relevant formula mentioned in the counter affidavit filed on behalf of the respondents in W.P.(C).11238/2009 reads as follows: "Fixation of pension in pursuance of above rule in respect of Dr.(Mrs.) Shanti Sen is illustrated. (a) Pay Scale in which Dr.Sen was drawing her pay at the time of retirement i.e. 31.07.1987 Rs.3700-5000 (b) Basic pay at the time of retirement Rs.,5000/- (c) Non-Practicing Allowance (NPA) Rs.900/- (d) Emoluments calculated for pension(Basic Pay -pNPA): Rs.5000-PRs.900 = Rs.5900 (e) Length of service rendered by Dr.Sen 31 years 11 months 23 days which is rounded to 32 years. (f) Pension=Average emoluments/2 x No. of completed half year service/66 Rs.5900/2x64/66 =2860.60=Rs.28 61 Pension fixed in respect of Dr.Sen at the time of retirement is Rs.2861/-" 20. This formula If has been applied in all the cases, the stand of the petitioner that NPA which was payable to retirees prior to 01.01.1996 was not taken into consideration as part of the basic pay for the purpose of calculation of pension is belied. However, as per the respondents, the element of NPA is not part of basic pay and thus is not required for the purpose of equalizing the pension payable to retirees prior to 01.01.1996. NPA stand included into their pay for the purpose of calculating pension as on the date of their retirement prior to 01.01.1996 and therefore the only thing required to be done by the respondent is to equalize that pension by taking into consideration the minimum pay now payable to a doctor as on 01.01.1996. 21. It would now be appropriate to take note of some of the observations made by the Supreme Court in B.J.Akkara's case which of course was with respect to doctors working in defence services W.P.(C) No.8973/2009 & Connected Matters Page 13 of 55 but which certainly deals with the controversy raised by the petitioners in this case also. The issues which were crystallized for consideration by the Apex Court needs mention in this regard: "3. The recommendations of Fourth Central Pay Commission in regard to pensionary benefits for Armed Force Officers retiring on or after 1.1.1986 were implemented by Ministry Circular dated 30.10.1987. The said Circular provided that retiring pension of all commissioned officers of the three services, shall be calculated at 50 per cent of the reckonable emoluments, for a qualifying service of 33 years (to be reduced proportionately for lesser qualifying service). It defined 'reckonable emoluments' for purposes of retiring/service pension as average of pay, NPA and rank pay, if any, drawn by the officer during the last 10 months of his service. It defined the term 'pay' as basic pay in the revised