IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27/12/2002 Coram THE HON'BLE MR.JUSTICE R.JAYASIMHA BABU AND THE HON'BLE MR.JUSTICE E.PADMANABHAN WRIT PETITION No. 393 of 1990 and W.P.Nos. 394, 4859 AND 4860 OF 1990 .... WP.Nos:393 & 394/90 G.Ramanujam ..Petitioner in both the WPs -Vs- 1. Union of India, rep. By the Secretary to Govt., Ministry of Law and Justice (Department of Justice) New Delhi 2. State of Tamil Nadu rep by Secretary to Govt., Govt., of T.N., Public (Spl.B) Dept., Chennai-9 3. The Accountant General, Chennai-6 4. The Registrar, High Court, Chennai-104 ..Respondents WP.Nos:4859 and 4860/90 C.Venkataraman .. Petitioner in both WPs Vs. The Union of India rep. By Secretary to Government, Ministry of Personnel, Public Grievances and Pensions Department of Personnel and Training New Delhi. ..Respondent in both WPs. For petitioner :: Mr.Vijay Narayan For respondents:: Mr.V.T.Gopalan Additional Solicitor General assisted by Mr.J.Madana Gopalrao SCGSC Mr.S.T.S.Murthy Spl.G.P. For R2 and R4 Writ Petitions preferred under Art.226 of The Constitution of India seeking for the issue of a writ of Mandamus/Declaration as stated therein. :O R D E R E.PADMANABHAN.J., I RELIEFS: In W.P.No.393 of 1990, Mr.Justice G.Ramanujam, formerly a Judge of this Court and who was the Vice Chairman of the Central Administrative Tribunal has prayed for the issue of a writ of mandamus directing the respondents to sanction and grant his retirement benefits being (i) additional death-cum-retirement-gratuity of Rs.20,000/= over and above Rs.30,000/= already paid for the reasons set out in paras 7 and 8 supra; and (ii) commuted value of half of the enhanced pension after giving credit to the amount already paid for the reasons set out in para 3 supra; and (iii) the total amount of pension and pension equivalent of gratuity deducted from salary from 1.11.1985 till 31.5.19 88 for the reasons set out in paras 5 and 6. 2. Writ Petition No.394 of 1990 is again by Mr.Justice G.Ramanujam for the issue of a writ of mandamus directing the respondents to sanction and grant the total amount of pension and Pension Equivalent of Gratuity deducted from the salary of the petitioner from 1.11.1985 till 31.5.1988 when the petitioner held office as the Vice Chairman of the Central Administrative Tribunal, Madras. 3. In W.P.No:4859 of 1990 the petitioner Thiru C.Venkataraman who was formerly member of the Indian Audit and Accounts Service and who held the post of Special Secretary in the Ministry of Finance and Ex-officio Secretary to the Government of India, Department of Railways and who came to be selected and appointed as Member of the Additional Bench of the Central Administrative Tribunal has prayed for the issue of a writ of declaration to declare that the proviso to Rule 3 of the CAT (Salaries and Allowances and Condition of Services of Chairman,Vice Chairman and Members) Rules 1985 as arbitrary, void, illegal and unconstitutional. 4. In W.P.No.4860 of 1990, the very same petitioner Mr.C. Venkatarman has prayed for the issue of a writ of certiorarified mandamus calling for the records of the respondent in proceedings No.A-12026/3/87-80 dated 20.4.1990 quash the same and direct the respondent to fix the pay of the petitioner from 1.11.1985 as Member, Central Administrative Tribunal without making any deductions of gross pension and/or pension equivalent of gratuity from the pay of the post with all arrears of pay with effect from 1.11.1985. II CONSOLIDATING WRIT PETITIONS: 5. Since in all the above four writ petitions identical claims have been made and the contentions being identical contentions are being advanced for identical reliefs, at the request of the counsel for the petitioner and respondents, the above four writ petitions were consolidated and taken up for hearing on various dates. 6. Heard Mr.Vijay Narayan, learned counsel appearing for the petitioners in all the four writ petitions, Mr.V.T.Gopalan, Additional Solicitor General, appearing for the Union of India, assisted by Mr.J. Madana Gopal Rao, and Mr.T.Ravikumar, Additional Central Government Standing Counsel appearing respectively for Respondent Nos.1 and 3 and Mt.S.T.S.Murthy, learned counsel appearing for the respondent Nos.2 and 4 viz., III - PETITIONER'S CASE IN W.P.No.393 & 394 OF 1990 7. According to the petitioner in W.P.Nos:393 and 394 of 1990 he was a permanent Judge of the Madras High Court between 11.7.1969 and 1 .6.1985 and he demitted the office after putting Fifteen years, Ten months and twenty days of service on attaining the age of 62 years. On 29.11.1985 he was also granted death-cum-retirement gratuity in addition to the grant of pension of Rs.22,400 per annum or Rs.1866.66 per month. The petitioner has also commuted the pension and he was paid Rs.1,02,443.40 on 16.4.1986 and the commuted value being Rs.11,200/= being one half of the pension of Rs.22,400/= per year. With effect from 11.1.1986 pension of all the High Court Judges both serving and retired was raised to Rs.4,000/= per month and the petitioner who was being paid Rs.3066.67 per month was paid Rs.4000/=. The petitioner's request for commutation at the revised rate has not been permitted though it is permissible in law. 8. The petitioner after superannuation was appointed as Vice Chairman of the Madras Bench of the Central Administrative Tribunal with effect from 1.11.1985 on a monthly salary of Rs.3500/= as being the scale of pay applicable to High Court Judges. The petitioner demitted the said office on 1.6.1988 after putting two years and seven months of service in the said post. According to the petitioner, during his tenure as Vice Chairman between 1.11.1985 and 31.3.1988, the entire pension paid to him has been deducted from his salary in the post of Vice Chairman on the ground that pay which together with pension and PEG should not exceed a Judge's salary of Rs.3500/= per month before 31.3.1986 and Rs.8000/= after 1.4.1986. 9. It is the case of the petitioner that pension is paid for the services already rendered as Judge of High Court and that cannot be taken as a consideration for services rendered after retirement. A retired Judge by not taking up any employment will get his full pension sitting at home. On employment if his pension is deducted from the salary it is as if he is not getting any pension at all for the past services. According to the petitioner for the work done by him as Vice Chairman he is entitled to get Rs.8000/= as salary. It is pointed out that if a retired High Court Judge is appointed to similar post he wil get a salary of Rs.4000/= after deduction of his pension of Rs.4000/=. Though both of them do the same work one gets Rs.8000/=, another gets Rs.4000/= as monthly salary. It is nothing but payment of unequal salaries for the same work. The pension which the petitioner is entitled to get cannot be taken into account while evaluating the services on reemployment. Proviso to Rule 3 of CAT(Salaries and allowances and conditions of services of Chairman, Vice Chairman and Members) Rules 1985, providing for contrary, is unconstitutional, void besides it is violative of Articles 14 as well as 16 of The Constitution. 10. According to the petitioner during his tenure as Vice Chairman in addition to his pension a sum of Rs.274/= was deducted from his salary as pension equivalent of gratuity (hereinafter referred as PEG). However, pursuant to the pronouncement of the Supreme Court holding that the deduction of DCRG from salary is not legal, the Government of India by Notification dated 27.12.1988 directed that in case of retired Judges already in reemployment as on 1.6.1988 and in whose case PEG was taken into account for fixing the initial pay, the pay should be refixed with effect from 1.6.1988 by ignoring the element of PEG. 11. The petitioner retired on 31.5.1988, a day before the said crucial date and therefore he has been denied of the benefit of the said Notification even though he was also a Judge on reemployment and PEG was deducted from his salary. Such discrimination between similarly situated persons merely based on the date of retirement has been held to be constitutionally bad by the Supreme Court in Nakara's case. The reason for exclusion of PEG equally applies to exclusion of pension as well. 12. According to the petitioner though he has servd more than 15 years, he was just paid Rs.30,000/= as DCRG while other judges of the High Court who came from Subordinate Judiciary had been paid Rs.50,000 /= even if they had put in less than five years of service as High Court Judges. It is discriminatory to pay DCRG at such a rate and there cannot be a discrimination between the directly appointed High Court Judges and District Judges elevated as High Court Judges and it offends Art.14. 13. The petitioner points out that when other Judges of the High Court who retired subsequently whose DCRG has been revised from Rs.30,000/= to Rs.50,000/= as per the amendment to the High Court and Supreme Court Judges conditions of Services Act, 1986 and the same was given effect from 1.11.1986, the Government of India had omitted to amend The High Court Judges Conditions of Services Act, 1954 with effect from 27.3.1982 to 31.10.1986 and thereby denying the rights of some of the High Court Judges retired between the said period to get the enhanced benefit. Number of representations have been submitted to the Government of India, but no positive action has been taken. 14. According to the petitioner he has rendered services as Vice Chairman, Central Administrative Tribunal between 1.11.1985 and 31.5.19 88. Though it is a pensionable service under Rule 8(1) of CAT Service Rules, pension has not been paid to the petitioner on the ground that he has already in receipt of Rs.4000/=, the maximum amount of pension payable to High Court Judges and as such no pension is payable to him under proviso to Rule (2). 15. It is contended out that when once the services rendered in the Tribunal is made pensionable, everyone doing that service is entitled to claim pension irrespective of the fact as to who renders that service and the fact that a person has earned certain pension for his past services in another capacity cannot stand in his way of getting pension for the services rendered as Vice Chairman, CAT. The services rendered in the Tribunal being a pensionable service for some and non pensionable in the case of others. The proviso to Rule 8(2) of the Rules is clearly arbitrary, discriminatory and violative of Articles 14 and 16 of The Constitution and the said proviso has to be struck down as unconstitutional and consequential relief should be granted. 16. In W.P.No.394 of 1990 the very same petitioner after setting out identical set of facts has prayed for the issue of a writ of mandamus directing the respondents to sanction and grant additional DCRG of Rs.20,000/= over and above Rs.30,000/= already paid and also to pay the commuted value of one half of the amount ater giving credit to the amount already paid and total amount of pension, PEG deducted from salary from 1.11.1985 till 31.5.1988 when the petitioner held office as the Vice Chairman of the Central Administrative Tribunal, Madras. IV - PETITIONER'S CASE IN W.P.No:4859 AND 4860 OF 1990: 17. In W.P.No:4859 of 1990, Mr.C.Venkataraman, Member of the Indian Audit and Accounts Service entered into Indian Audit and Accounts Service in the year 1951 and served in different capacities between 1951 to 1985. It is not necessary to set out the various posts which this petitioner held. On15.10.1985 the petitioner while he was working as Financial Commissioner and Ex officio Secretary to the Government of India, Department of Railways, was selected for appointment as a Member of the Additional Bench of the Central Administrative Tribunal, Madras established on 1.11.1985. The petitioner was requested to take action to seek retirement from the Government service in accordance with Rule 5(1) of the Rules. The petitioner was informed that he has to take up the office at the earliest since the Central Administrative Tribunal Bench had to be fully functional from 1.11.1985. 18. On 8.10.1985 the petitioner issued a notice of voluntary retirement from Government service in order to enable the Government of India to notify his appointment to the Central Administrative Tribunal. On 31.10.1985 the petitioner was informed that his voluntary retirement has been accepted by the President of India. While waiving the notice of a period of three months, the President of India was pleased to appoint the petitioner as Member of the Central Administrative Tribunal, Additional Bench at Madras. The retirement of the petitioner was effective from the afternoon of 31.10.1985. The petitioner was informed that pension is payable at the rate of Rs.2577 per month with effect from 1.11.1985 and the relief at the rate of Rs.25 per month or at the rate imposed from time to time. The petitioner opted for commutation of pension and a sum of Rs.1,11,120.25 has been paid and the pension has been reduced to Rs.1,718 per month with effect from 6.12.1985, besides Rs.25 per month towards relief. The petitioner was also sanctioned DCRG of Rs.50000/=. 19. According to the Rules governing the post of Members, Central Administrative Tribunal the petitioner is entitled to receive a sum of Rs.3000/= as pay, but by virtue of the proviso to Rule 3, since the gross amount of retirement benefits including the pension equivalent of retirement gratuity aggregating to Rs.2,963.50 had to be deducted, the petitioner has received only a sum of Rs.36.50 per month towards pay for the months of November and December, 1985. On 7.5.1987 the petitioner made a representation to the Hon'ble Minister of State, Department of Personnel and Training and to the Chairman, Central Administrative Tribunal regarding the effect of the Proviso to Rule 3. 20. The petitioner also pointed out that the appointment to the Tribunal as a Member or the Vice Chairman is not an reemployment, but it is an appointment to a statutory post which is governed by the provisions of the Administrative Tribunals Act and the Rules framed thereunder. The petitioner was compelled to seek retirement from service by virtue of Rule 5(1) of the Rules and therefore it should not be treated as reemployment but it could only be taken to be a fresh appointment. According to the petitioner the grant of pension is neither a bounty, nor a matter of grace, but it is a payment for the past services rendered and therefore the employees who retire from Government Service has a vested right to receive pension under the statutory rules for the services already rendered. Therefore any rule which prescribes deduction of the pension and the PEG to be made from the pay of the Post is arbitrary and illegal. In the case of reemployed pension who again joined Government service, the basis for introducing a rule or instruction which authorises the deduction of pension from the pay of the re-employed pensioner was that in the case if a Government Servant unless such deduction was made it would given an unintended benefit to a retired Government Servant as compared to serving Government servant who is holding the same post. But this reasoning has no application in the case of appointment to the posts like a Member or Vice Chairman in the CAT, where no serving Government servant could be appointed and it is obligatory to retire before his being appointed to such post. 21. According to the petitioner there is a distinction between reemployment and Government Servant and appointment to an independent post of judicial nature. The Government of India also by its letter dated 14.4.1996 addressed to Mr.S.P.Mukherjee, the then Member of the Principal Bench of the Tribunal at New Delhi informed that after careful consideration it had been decided that appointments to the Central Administrative Tribunal after their retirement from Government service cannot be treated as reemployment. The petitioner requested the Ministry that pension and other retirement benefits shall not be deducted from the pay of a Member of the Central Administrative Tribunal, but they are of no avail. The petitioner's representation was forwarded to the Central Government with an endorsement of the Vice Chairman who expressed his vie that the petitioner has made out a strong case and justifiable case for a suitable amendment to the Rules to provide for the fixation of pay without taking into consideration of the pension and PEG. 22. By seeking early retirement which the petitioner was obliged to do by virtue of Rule 5 of the Rules, the petitioner also lost sizeable amount from monthly recurring entitlement of pension as well as from his DCRG. This was because of the IV pay commission recommendations subsequently accepted by the Government and were given effect to only from 1.1.1986. Had the petitioner continued to serve till the normal date of retirement he would have been entitled for the calculation of pension at 50% of the ten months average emoluments as Secretary to Government where his pay would have been Rs.8000/= per month from 1.1.1986. So also in the case of DCRG. The petitioner was also paid Rs.20,000/= as gratuity. Had the petitioner continued he would have been paid a substantial sum towards DCRG. Subsequently the rule was amended from 1.6.1988 and PEG is not to be deducted from the pay. 23. When a person commutes 1/3rd of his pension on retirement, to which he is automatically entitled the commuted value is arrived at on the basis of multiplying the 1/3rd of the monthly pension by a figure which represents the number of years of pension given in a table, depending on the age of the applicant at the time of applying for such commutation so that a lump sum is paid to the applicant, thereby avoiding the need to make payment of 1/3rd portion of the pension every month. In other words, the Government purchases the value of 1/3rd of the pension by paying a lump sum and that is given as commuted pension. When PEG is arrived at, the exactly reverse process is applied to arrive at the monthly pension to which the lump sum gratuity paid on retirement is the equivalent. 24. According to the petitioner pension equivalent to a lump sum payment namely the DCRG is not liable to be deducted from the pay of a Post of a Member, CAT and there is no reason as to why the monthly pension is to be deducted. The petitioner also points out that in the case of Government Servants who are employed by Public Sector Undertakings, the pension which they received from the Government is not deducted from the monthly pay. In the case of Mr. G.Ramasamy, who was a member of the Audit and Accounts Service who was later appointed as Director of the Minerals and Metals Trading Corporation of India Limited he was in receipt of a pay of Rs.2700/= per month and in his case the pension which he was receiving from the Government was not deducted from the monthly pay and allowances. Moreover, he was also eligible for pro rata pension and DCRG based on the length of his qualifying service under the Government of India till the date of his permanent absorption in the Minerals and Metals Trading Corporation of India Limited. So also in the case of Mr.A.J.A.Tauro, another Indian Audit and Accounts Service, when he was appointed as Finance Director in the Indian Petro Chemicals Corporation Ltd.,. So also in the case of Shri P.S.Bajaj who was a Government servant and who was thereafter employed by the Indian Telephone Industries. In all those cases, pension was not deducted from the gross amount of pay and allowance, but in the case of members, Vice Chairman and Chairman of Tribunals established under The Administrative Tribunals Act, 1985 the pension is being deducted from the gross amount of of pay and allowances. There is no reason or rhyme for the members of this Tribunal alone should be treated differently. 25. The Government of India by O.M.No.2(90)68 BPE (GM) dated 8.11.1 968 also provided for payment of full salary in addition to the salary drawn by a Government of Indian Servant who is appointed in the Public Sector. The above attitude of the Government of India demonstrates individuous discrimination between the Government servants who are permanently appointed by public sector undertakings and Government Servants appointed as Member, Vice Chairman, or Chairman in the Central Administrative Tribunals. Such discrimination has absolutely no nexus to the object sought to be achieved and it is violative of Articles 14 and 16 of The Constitution. There is no reason at all to treat the members of the Administrative Tribunal with a step motherly treatment though it has been held that the said Tribunals are substitutes for the High Courts in Sampath Kumar's case. 26. The petitioner has also referred to the pay fixation of members who are drawn from the Government, from the Judiciary and from the Bar, the difference in pay fixation of the Members of the CAT to show the gross injustice meted in the matter of pay fixation. While a member of the Bar who has been appointed directly as Mr.N.R.Chandran who was directly appointed to the Tribunal was paid Rs.7600/= as net pay, while the petitioner who after his resignation was paid only Rs.36.50as on 1.11.1985, Rs.3785.70 on 1.1.1986, Rs.3885.70 on 1.11.1986 , Rs.3985.70 on 1.11.1987, Rs.4085.70 on 1.11.1988. 27. The petitioner made a number of representations drawing the attention of the Government of India. But there has been no consideration at all. The petitioner has explained the reasons for approaching this court in para 15 of the affidavit. IN the said background, the petitioner calls for the various reliefs including for a declaration that Rule 3 o the Rules is arbitrary, illegal and violative of Articles 14 and 16 and 300 of The Constitution of India, besides seeking for a mandamus directing the respondents to fix his pay from 1.11.1985 as prayed for without making any deduction of gross pension and/or PEG and pay the arrears of pay with effect from 1.11.1985. V - COUNTER CASE OF THIRD RESPONDENT: 28. The third respondent filed a counter in W.P.Nos.393 and 394 of 1 990 setting out as follows:- "(a) With regard to para 3 of the affidavit, it is submitted that the petitioner retired under Part-I of the first schedule to the High Court Judges (Conditions of Service) Act, 1954 (hereinafter to be called as ACT) on 29.11.1985. As on his date of retirement, the Act provided fro grant of pension at Rs.1600/= for each completed year of service, subject to a maximum of Rs.22,400/= per annum and a death cum retirement gratuity of Rs.30000/=(maximum) in lump sum at the rate of 20 days salary for each completed year of service. As such his case for pensionary benefits was settled accordingly. However, in pursuance of the Chief Justice's Conference held in 1985, further improvements in the Conditions of Service of the Judges of Supreme Court/High Court were made by Amendment Act, 1986. AS a result of the said improvements, the pension of High Court Judges was raised from Rs.1600 to Rs.3430 for each completed year of service subject to a maximum of Rs.48000/= per annum with effect from 1.11.1986. In pursuance of Supreme Court Order in W.P.No.502 of 1987 Justice S.B.Srivatsava retired Chief Justice Vs. Union of India, the benefit of enhanced rates/ scales of pension introduced from 1.11.1986 onwards, were extended to pre 1 .11.1986 retired Judges with effect from 1.11.1986, irrespective of their date of retirement. Accordingly, the petitioner was allowed revised higher pension with effect from 1.11.1986 i.e., with prospective effect. By virtue o the provisions of Section 19 of the Act of 1954 read with the Civil Pension (Commutation of Pension) Rules, the Judges are entitled to commute one half of their pension. Rule 10 of said rule provides that- "Retrospective revision of final pension-An applicant who has commuted a fraction of his final pension and after commutation his pension has been revised