*THE HON’BLE SRI JUSTICE G.BIKSHAPATHY & THE HON'BLE SRI JUSTICE P.S. NARAYANA +W.P.No.16172 of 2004 % 27-12-2004 # B.Krishna Murthi s/o.late Suraiah and others .. Petitioner And $ State of Andhra Pradesh, represented by Its Principal Secretary, Revenue Department A&R, Secretariat Buildings, Hyderabad and another .. Respondents <GIST: >HEAD NOTE: ! Counsel for petitioners : Sri D.V.Sitharam Murthy ^ Counsel for respondents : Government Pleader for Services-II ?CASES REFERRED : 1 AIR 1955 S.C. 191 2 AIR 1978 S.C. 771 3 AIR 1974 S.C. 1 = (1974) 1 SCR 771 4 AIR 1951 S.C. 41 5 AIR 1952 S.C. 75 6 AIR 1970 S.C. 1453 7 AIR 2003 S.C. 1696 = (2003) 9 SCC 114 8 AIR 1986 S.C. 431 9 AIR 1982 S.C. 879 10 AIR 1984 S.C. 541 = 1984 Lab.& Ind.Cases 301 11 AIR 2003 S.C. 3569 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY SEVENTH DAY OF DECEMBER TWO THOUSAND AND FOUR PRESENT THE HON'BLE MR JUSTICE G. BIKSHAPATHY and THE HON'BLE MR JUSTICE P.S.NARAYANA WRIT PETITION NO : 16172 of 2004 Between: 1 B.Krishna Murthi, s/o late Suraiah, aged 66 years, Judicial Member, Special Court under A.P.Land Grabbing (Prohibition) Act, BRKR Govt.Offices Complex, Hyderabad. 2 J.Krishna Murti, s/o Narasimham, aged 63 years, r/o Padmaraonagar, Secunderabad. 3 A.Venku Reddy, s/o late A.Ramchandra Reddy, r/o Plot No.66, Nagole, Hyderabad. 4 M.Narasimhulu Naidu, s/o late M.Venkam Naidu, r/o 16-3-808/1, II Lane, Haranadhapuram, Nellore. ..... PETITIONERS AND 1 State of Andhra Pradesh rep., by its Principal Secretary (Revenue Department A&R) Secretariat Buildings, Hyderabad. 2 The Registrar, Special Court under A.P.Land Grabbing (Prohibition) Act, II Floor, BRKR Government Offices Complex, Tankbund Road, Hyderabad-63. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue an appropriate writ or order or direction more particularly one in the nature of writ of mandamus that the a) petitioners i.e., Judicial Members of the Special Court constituted under Section 7 of the A.P.Land Grabbing (Prohibition) Act, 1982 are entitled to the same protection pay under Rule 3 of the Conditions of Service Rules for Chairman and Members of the Special Court under A.P.Land Grabbing (Prohibition) Act, in G.O.Ms.No.176 dated 13-02- 1996 as amended from time to time in regard to deduction of only Rs.1,500/- of the pension accruable out of previous service in accordance with O.M.NO.45/73/97-P&PW(G) dated 2nd July, 1999 issued by Government of India for fixation of pay on re-appointment as Member of the Special Court, (b) if necessary declare G.O.Ms.No.358 dated 1-5-2004 issued by the respondent No.1 in so far as its non-application to judicial members of the Special Court constituted under the Act as offending Article 14 of the Constitution being an unreasonable and arbitrary classification; and (c) consequently direct the 1st respondent to fix the pay of the petitioners by deducting only Rs.1,500/- from out of the pension drawn/drawable from previous service, while fixing the pay as Judicial Member and pay all consequential benefits arising therefrom forthwith. Counsel for the Petitioner:MR.D.V.SITARAMAMURTHY Counsel for the Respondent No.1 : GP FOR SERVICES II Counsel for the Respondent No.2 : Mr.A.V.Sesha Sai, Advocate. The Court made the following : ORDER: (per P.S.Narayana.,J) The President and Retired Judicial Members of Special Court constituted under Section 7 of A.P. Land Grabbing (Prohibition) Act, 1982, hereinafter referred to as “Act”, the writ petitioners herein, filed the present Writ Petition challenging the action of the 1st respondent in not extending the benefit of deduction of only Rs.1500/- out of total pension amount earned by reason of their past service in Higher Judicial Service from their Pay as Judicial Members of the Special Court on par with Revenue Members of the Special Court as was granted to such Revenue Members vide impugned G.O.Ms.No.358, Revenue (Act & Rules) Department, dated 1-5-2004 as arbitrary, illegal, discriminatory and offending Article 14 of the Constitution of India. It was specifically prayed for in the Writ Petition to issue an appropriate writ, order or direction more particularly one in the nature of writ of mandamus that (a) petitioners i.e., Judicial Members of the Special Court constituted under Act are entitled to the same protection pay under Rule 3 of the Conditions of Service Rules for Chairman and Members of the Special Court under the Act in G.O.Ms.No.176, dated 13-2-1996, hereinafter in short referred to as “Rules” as amended from time to time in regard to deduction of only Rs.1500/- of the pension accruable out of previous service in accordance with O.M.No.45/73/97-P&PW(G) dated 2-7-1999 issued by Government of India for fixation of pay on reappointment as Member of the Special Court; (b) if necessary declare G.O.Ms.No.358, Revenue (Act & Rules) Department, dated 1-5-2004 issued by the 1st respondent in so far as its non-application to Judicial Members of the Special Court constituted under the Act as offending Article 14 of the Constitution of India being an unreasonable and arbitrary classification and (c) consequently direct the 1st respondent to fix the Pay of the petitioners by deducting only Rs.1500/- from out of the pension drawn/drawable from previous service while fixing the Pay as Judicial Members and pay all consequential benefits arising therefrom forthwith. The 1st writ petitioner had sworn to the affidavit narrating all the details and also specifying how the said treatment is illegal and discriminatory as between the Judicial Members and Revenue Members of the Special Court. The 2nd respondent filed a counter affidavit taking a stand that despite the correspondence in this regard specific orders had not been issued. Sri D.V.Sitharam Murthy, the learned Counsel representing the writ petitioners made the following submissions. The learned Counsel contended that the action of the 1st respondent in not extending the benefit of pay fixation in accordance with Office Memorandum dated 2-7-1999 issued by the Union of India in regard to ignoring of only part pension accrued after previous employment to the petitioners at par with Revenue Members of the Special Court is clearly a case of arbitrary classification and discriminatory, offending Article 14 of the Constitution of India. The learned Counsel also would maintain that Judicial Members and the Revenue Members of the aforesaid Special Court form a homogeneous class performing similar functions as ordained by Section 7 of the Act, enjoy similar service benefits such as Pay under Rule 3, D.A. under Rule 4, Leave under Rule 6, Pension under Rule 8, P.F. under Rule 9, T.A. under Rule 10, L.T.C. under Rule 11(b) of the Rules, Conveyance under Rule 13(b), facilities for Medical Treatment under Rule 14(b) and the like. The learned Counsel also would maintain that neither the Act nor the Rules provide for any dichotomy in relation to the service conditions of the Revenue Members and Judicial Members. Pay being an important condition of service, the Revenue Members and Judicial Members of the Special Court are entitled to parity in pay on principle of equal pay for equal work. The Counsel also would maintain that except for the difference in source of recruitment, both the streams i.e., Revenue and Judicial Members, converge into a homogeneous class and therefore there could be no dissimilar treatment in their appointment as Members of the Special Court in relation to any of the service benefits. The learned Counsel also had pointed out that due to these disparities, repeatedly the Judicial Members are being driven to the Courts for obtaining suitable directions and had pointed out to the decisions of this Court in W.P.No.3281/2002 dated 25-4-2002 and W.P.No.191/2003 dated 6-11-2003. The learned Counsel also had pointed out to G.O.Ms.No.358, Revenue (Act & Rules) Department, dated 1-5-2004 and would contend that if necessary the said G.O. issued by the 1st respondent in so far as its non-application to Judicial Members of the Special Court constituted under the Act to be declared as unreasonable, arbitrary and offending Article 14 of the Constitution of India. The learned Government Pleader for Services II had pointed out that though these members discharge similar functions, their original source of recruitment being different, unless the benefits given to the Revenue Members are specifically conferred on the Judicial Members too, the same cannot be extended to Judicial Members. The learned Counsel also would contend that on that ground inasmuch as the recruitment channel being different, merely because subsequent to the retirement these members had been appointed as Judicial Members and Revenue Members, inasmuch as there is reasonable classification, G.O.Ms.No.358, Revenue (Act & Rules) Department dated 1-5-2004 cannot be held to be bad in law being violative of Article 14 of the Constitution of India. Sri A.V.Sesha Sai, the learned Counsel representing the 2nd respondent had taken this Court through the contents of the counter affidavit filed by the 2nd respondent and would contend that in spite of repeated requests of the 2nd respondent to suitably amend the service Rules and also to issue suitable orders, there is in action on the part of the 1st respondent in this regard. Heard the Counsel on record. The present Judicial Members – petitioners 1 and 2, and the retired Judicial Members – petitioners 3 and 4, of the Special Court under the Act had challenged the action of the 1st respondent in not extending the benefit of deduction of only Rs.1500/- out of total pension amount earned by reason of their past service in Higher Judicial Service from their Pay as Judicial Members of the Special Court under the Act on par with Revenue Members of the Special Court as was granted to the said Revenue Members in G.O.Ms.No.358 referred to supra. The Special Court constituted under Section 7 of the Act is comprised of a Chairman and four other members. The Chairman is mandated to be a person who is or has been a Judge of a High Court and of the four members, two are to be Judicial Members who are or had been District Judges and two are Revenue Members drawn from amongst the persons who had held or holding a post not below the rank of a District Collector. The conditions of service in regard to the Chairman and members of the Special Court under the Act are governed by the Rules comprised in G.O.Ms.No.No.176, dated 13-2-1996 issued by the 1st respondent and the said G.O. was issued by virtue of the rule making power vested in the Government under Section 16 of the Act. Rule 3 as it originally stood read : “The Chairman shall receive a pay of rupees Eight thousand plus a special pay of Rs.1000/- per mensum and a Member shall receive pay in the scale of Rs.7300-100-7600 per mensum or such scales of pay as are applicable to the Chairman and Members of the Andhra Pradesh Administrative Tribunal. Provided that in the case of an appointment as Chairman, or as the case may be, a Member or a person, who has retired as a Judge of a High Court or who has retired from service under the Central Government or a State Government and who is in respect of or has received or has become entitled to receive any retirement benefits by way of pension and or gratuity, or other forms of retirement benefits, the aforementioned pay shall be reduced by the gross amount of pension and pension equivalent of gratuity or any other form of retirement benefits, if any drawn or to be drawn by him”. The Government had revised the Pay of Chairman of A.P. Administrative Tribunal and also Members of the said Tribunal vide G.O.Ms.No.421 dated 16-10-1998. It is further stated that in view of the same, the Pay of the Chairman of Special Court under the Act also was enhanced to Rs.26,000/-, plus Special Pay of Rs.1000/- by G.O.Ms.No.629 dated 12-8-1999 while in case of Members a new criterion was fixed stating that the Member shall receive Pay which he drew previously or is drawing at the time of appointment. Under the said G.O. in place of a structured pay scale as was initially put in place, the last drawn Pay of the Member, Judicial or Revenue as the case may be, in his earlier service was protected. Further, incidentally, the parity in Pay of the Members of the Special Court with that of the Members of the A.P. Administrative Tribunal was no longer available and a dichotomy was created. By virtue of G.O.Ms.No.629 dated 12-8-1999 though the Pay of Chairman of the Special Court was enhanced to be in parity with that of Chairman of A.P. Administrative Tribunal, the pay of the Judicial Members of the Special Court was not enhanced to be brought in parity with the members of the A.P. Administrative Tribunal as was specified under Rule 3 as it originally stood. A representation dated 13-2-2002 was made pointing out the said disparities and the same was treated as W.P.No.3281/2002 suo motu by this Court and during the pendency of the Writ Petition, the 1st respondent issued G.O.Ms.No.207 dated 20-4-2002 substituting the following Rule in place of Rule 3 dated 13- 2-1996 as hereunder : “The Chairman shall receive a pay of Rs.26,000/- plus special pay of Rs.1,000/- per mensum and a Member shall receive pay in the scale of pay of Rs.22,400-600-26,000 or such scales of pay as are applicable to the Chairman and Members of the A.P. Administrative Tribunal as amended from time to time. Provided that in the case of an appointment as Chairman or as the case may be a Member of a person who has retired as a Judge of a High Court or who has retired from service under the Central Government or a State Government and who is in respect of or has received or has become entitled to receive any retirement benefits, by way of pension and/or gratuity or other forms of retirement benefits, the aforementioned pay shall be reduced by the gross amount of pension and pension equivalent of gratuity or any other form of retirement benefits, if any drawn or to be drawn by him”. In view of the said G.O. this Court had disposed of the aforesaid Writ Petition on 25-4-2002. Specific stand was taken in the said Writ Petition that the nature of duties discharged by the Revenue Members and Judicial Members of the Special Court under the Act are one and the same and hence there cannot be any disparity in any of the benefits of service or incidents of service under the Rules. It is further stated that when the entitlement of pension under Rule 8 of the Rules had not been granted in accordance with the revision in Pay under Rule 3 on par with Members of A.P. Administrative Tribunal certain Members of Special Court under the Act including the petitioners were constrained to approach this Court by W.P.No.191/2003 praying for the rate of pension at par with the Members of the A.P. Administrative Tribunal and this Court by order dated 6-12-2003 declared that the petitioners therein are also entitled to pension on par with the Members of the A.P. Administrative Tribunal. On representations made by various Officers of All India Service, Government of India while accepting the recommendations of the 5th Central Pay Commission issued O.M.No.45/73/97- P&PW(G) dated 2-7-1999 and directed that the Pay of the reemployed Officers of All India Service upon such reemployment shall be after ignoring only a portion of the pension i.e., Rs.1500/- received for the previous employment and the orders were directed to be given effect from 18-7-1997. Thus by virtue of the acceptance of the 5th Central Pay Commission recommendations, any pensioner belonging to All India Service on reemployment is required to lose only Rs.1500/- from his pension due to be received or being received while fixing his Pay and the same would be contrary to proviso to Rule 3 of the Rules which contemplated a deduction of entire amounts receivable or being received as pension for past service rendered prior to retirement. This was made applicable only to the members of the All India Service. In view of the said directions one retired Revenue Member of the Special Court sought for the benefit of such deduction of Rs.1500/- only of his pension amount being drawn by him by virtue of a representation upon which the 2nd respondent had addressed a letter to the 1st respondent on 21-2-2004 and by amendment to Rule 3 of the Rules to extend the benefits of the Office Memorandum dated 2-7-1999 issued by the Union of India to both Revenue and Judicial Members of the Special Court. The Government of Andhra Pradesh even prior thereto had accepted the benefit granted under the Union of India Memorandum dated 2-7- 1999 to the Government officials not belonging to All India Service who are appointed as Chairman or members of the A.P. Public Service Commission after their retirement i.e., 18-7-1997. Thus the Government extended the above referred benefits to persons other than the Officers of All India Service having regard to the beneficiary content of the said Rule upon representations received from various sections of the Government officials who have been reappointed to other posts after their retirement. Pursuant to the proposal sent by the 2nd respondent seeking amendment of Rule 3 of the Rules on 1-2- 2004 the 1st respondent addressed letter to the 2nd respondent directing suitable action to be taken to confer the aforesaid benefits to the members of the Special Court who belong to All India Service only vide letter dated 13-4-2004. It was not specified that the same facility is being extended to Judicial Members of the Special Court though these members also discharge same duties and functions as the Revenue Members. The 2nd respondent addressed a letter dated 23-4-2004 to the 1st respondent pointing out the discrimination between Judicial Members and also Revenue Members in this regard and prayed for issuance of necessary instructions by way of a G.O. in terms of Rule 16. The 1st respondent issued G.O.Ms.No.358 dated 1- 5-2004 extending the above benefit of pay fixation ignoring only a portion of the pension i.e., Rs.1500/- received from the previous employment of All India Service Officers who are reappointed as Revenue Members of Special Court after their retirement i.e., 18-7- 1997. In relation to the extension of the said benefit to the Judicial Members of the Special Court, it is specified that necessary orders would be issued separately after detailed examination and the 2nd respondent was requested to forward proposals for amending of Rule 3 of the Rules accordingly. The said action of the 1st respondent in not extending the above facility of pay fixation to the Judicial Members of the Special Court under the Act on par with the Revenue Members is being challenged on the ground of arbitrary classification and being discriminatory and violative of Article 14 of the Constitution of India. In the counter affidavit filed by the 2nd respondent it was specifically averred that as per Rule 3 of the Rules, the Government of Andhra Pradesh treated Judicial Members on par with the Revenue Members working in Special Court and there is no amendment to Rule 3 of the Rules and the proviso. The 4th petitioner herein and the former Members of the Special Court and the present Revenue Member Sri M.K.R. Vinayak filed W.P.No.191/2003 on the file of this Court and the Writ Petition was allowed by virtue of an order dated 6-11-2003 wherein it was held as follows : “The Members of these Tribunals having been treated equally in matters of service conditions cannot be discriminated converting the equals into unequals. The Government while enhancing the pay scales of Members of Special Court, ought to have simultaneously amended the provision relating to the pension. Obviously there appears to be an omission in this regard. But that should not result in arbitrary and discriminatory treatment to the Members who are treated on par with the members of the Andhra Pradesh Administrative Tribunal for all purposes.” On receipt of Government of India Circular Memo No.45/73/97-P & PW (G) dated 2-7-1999, the Registrar, Special Court under the Act addressed a letter in Dis.No.138/2004/Regr/Est./SC dated 21-2- 2004th to Secretary to Government, Revenue (A&R) Department, A.P. Secretariat, Hyderabad requesting the Government to amend Rule 3 of the Rules extending the benefit of Government of India Circular Memo dated 2-7-1999 to the Members of the Special Court, Judicial as well as Revenue Members. It is further stated that the Government of Andhra Pradesh by virtue of letter No.2745/A&R- 1/2004 dated 13-4-2004 requested the 2nd respondent to take necessary action as per the recommendations of the 5th Pay Commission. The Government of India instructions in Letter No.25014/6/2000-AIS(II) dated 10-5-2001 of the Department of Personnel and Training read with Memo No.45/73/97-P & PW (G) dated 2-7-1999 of the Department of Pension and Pensioners Welfare to refix the pay of the Members of the Special Court under the Act who belong to All India Service pension to their appointment as Members of Special Court under the Act. In response the said letter dated 13-4-2004 the 2nd respondent addressed a letter Dis.No.328/2004/Regr/Est/SC dated 23-4-2004 requesting the 1st respondent to issue necessary amendment to Rule 3 of the Rules for fixation of pay of the Members of the Special Court as per the Government of India Circular dated 2-7-1999 and the letter dated 13- 4-2004. In the said letter dated 23-4-2004 G.O.Ms.No.79, General Administration (Ser-A) Department dated 20-3-2004 also was brought to the notice of the Government of Andhra Pradesh wherein the 1st respondent extended the benefit of Government of India circular dated 2-7-1999 to the Government officials in A.P.Public Service Commission other than All India Service Officers. It is also stated that the Judicial and Revenue Members in the Special Court are discharging the same functions and they are drawing same scales of pay and they are governed by the same set of Service Rules and while the things stood thus the 1st respondent issued G.O.Ms.No.358, Revenue (Act & Rules) Department dated 1-5-2004. Paragraphs 2 and 3 of the said G.O.Ms.No.358 read as follows : “The Government after careful examination decided to extend the above pay fixation method to All India Service Officers, who are reappointed as Revenue Members, Special Court under Andhra Pradesh Land Grabbing (Prohibition) Act after their retirement with effect from 18-7-1997 and issued instructions in the reference 4th read above, with the concurrence of Finance Department vide their U.O.No.9289/04/A1/PSC/04 dated 6-4-2004. The proposals of the Registrar, Special Court sent with the letter 5th read above, to extend the benefit to the Judicial Members on par with the Revenue Members, necessary orders in the matter will be issued separately after detailed examination.” It is also stated that in spite of requests to amend Rule 3 of the Rules, the 1st respondent addressed a letter No.16758/A&R/04 dated 17-11- 2004 to the 2nd respondent stating that as per the recommendations of the 5th Central Pay Commission accepted by the Government of India in its office Memorandum No.45/73/97 P & PW(G) Department dated 2-7-1999 it applies to reemployed pensioners of All India Services only and will not be applicable to Judicial Officers who are covered by the recommendations of the 1st National Judicial Pay Commission and other Judgments of the Supreme Court of India delivered in All India Judges case. It is also specifically averred that the 2nd respondent never made any request to the 1st respondent to the effect that the Judicial Members are entitled to the benefits as per the recommendations of the 1st National Judicial Pay Commission. It is also stated that the Chairman and the Members of the Special Court, both Judicial and Revenue, are governed by the Rules under the Act and the said Rules do not discriminate the Judicial and Revenue Members in respect of pay and pension etc., and they stand on the same footing and hence they are liable to be treated equally for all purposes. The main grievance ventilated by the writ petitioners is both the