IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY SIXTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION NO : 267 of 2008 Between: 1 Union of India, Government of India Rep by its Secretary, Ministry of Defence, Sena Bhavan, New Delhi - 110 001. 2 The Director General Research and Development Defence Research & Development Organisation, Ministry of Defence, South block, DRDO Bhavan, Rajaji Marg, New Delhi - 110 011. ..... PETITIONERS AND 1 Shri K. Mallikharjuna Rao, S/o. Shir Venkata Rama Murthy, Dr.No. 18-8-254/A/1/20, Bharat Ratna Colony, PO : Saidabad, Hyderabad - 500 059. 2 Dr. R L Saha, S/o. Rajendra Lal Saha, H.No. 822, Bhart Ratna Colony, PO : Saidabad, Hyderabad - 500 059. 3 Dr. Trilok Singh, S/o. Raj Singh,17-1-382/51/B, Bhanu Nagar, Sagar Road, Hyderabad - 500 079. 4 Mr. SR Sahay, S/o. C Sahay, 9-40, Old Gayatri Nagar, PO : Vaishali Nagar, Hyderabad - 500 079. 5 Mr G. Nagendra Rao, S/o. G. Somalingam, 1-8-254/16 Rakshapuram Colony, PO : Saidabad, Hyderabad - 500 059. 6 Mr. K. Vishunvardhana Rao, S/o. K. Nagaiah, "Katyayani" 17-1-391/1/13, SBH Officer's Colony, PO : Saidabad, Hyderabad - 500 059. 7 Mr. DC Govil, S/o. Jwala Prasad, Mayuri Nagar, Miyapur, Hyderabad - 500 049. 8 Mr. Rampal, S/o. Ram Rakha Mal, 1-8-254/72, Rakshapuram Colony, PO : Saidabad, Hyderabad - 500 059. 9 Dr. T R S Reddy, S/o. Dr. T. Venkataramana Reddy, 73A Shanti Nagar, Hyderabad - 500 028. 10 Mr. N. Shanmugam, S/o. V N Narayana Swamy, Flat No. 303, Srinivasa Residency, St. NO. 9, New Narayanaguda, Himayatnagar, Hyderabad - 500 029. 11 Mr. A Gangadhara Rao, S/o. A V G Krishna Murthy, 60-B, Santosh Nagar Colony, Hyderabad - 500 059. 12 Mr. Balaram Gupta, S/o. Roshan Lal Gupta, H.No. 18-8-254/2 'Raj Kuteer' Rakshapuram Colony, PO : Saidabad, Hyderabad - 500 059. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue Writ or direction more particularly in the nature of Certiorari calling for the records pertaining to order dated 29-3-2007 in OA No. 184 of 2006 on the ﬁle of Hon'ble Central Administrative Tribunal, Hyderabad Bench, and consequentially quash the same by declaring the said order as illegal, arbitrary, violation of principles of law. Counsel for the Petitioner:MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) Counsel for the Respondents : MR.P.V.RAMANA FOR R The Court made the following : ORDER: (Per GM, J) Aggrieved by the order, dated 29.03.2007, passed in O.A.No.184 of 2006 by the Central Administrative Tribunal, Hyderabad Bench, Hyderabad, the present writ petition is filed. The petitioners herein are the respondents and the respondents herein are the applicants in O.A.No.184 of 2006 ﬁled seeking a direction to the respondents to consider the special pay of Rs.2,000/- per month granted in lieu of separate higher pay scale for the purpose of pension and other retirement benefits. For the purpose of convenience, the parties hereinafter are referred to as arrayed in O.A. The brief facts of the case are that the Government of India had issued an oﬃce Memorandum, dated 03.02.1999, granting special pay to the Scientists, as an incentive, at the rate of Rs.2000/-per month in the pay scale of Rs.18,400- 22,400/-, in lieu of separate higher pay scale after peer review and also two additional increments in the pay-scales of Rs.10,000-15,200; 12,000-16,500; 14,300- 18,300 and 18,400-20,000 after their normal pay ﬁxation. The applicants, who retired as Scientists ‘G’ in the pay scale of Rs.18,400/-500/-22,400/-, were granted special pay of Rs.2,000/- per month, in lieu of separate higher pay scale after peer review from the date of promotion as Scientist ‘G’ till the date of retirement, however, the same was not considered for computing the pension and retirement beneﬁts. Therefore, they made representations to the respondents and the same were disposed of holding that the case of the applicants for counting special pay of Rs.2000/- per month for the purpose of pension was taken up with the Ministry of Finance, who have declined to agree to the said proposal. Thereafter, an oﬃcial memorandum was issued by the respondents on 12.08.1999 clarifying that the special pay will not be treated as part of pay for the purpose of DA, HRA, pension etc. While so, in O.A.No.1153 of 2002 ﬁled by one of the employees of Department of Space, the Tribunal quashed and set aside the said clariﬁcatory Oﬃcial Memorandum and directed the respondents therein to reconsider and take an appropriate decision in the matter, including grant of special pay of Rs.2000/-per month to Scientists/Engineers ‘H’ in the Department of Space w.e.f. 01.01.1996 as part of pay, and the same has been implemented by the Department of Space and Department of Atomic Energy. Aggrieved by the same, the respondents ﬁled a writ petition before the High Court of Delhi. However, as no material has been produced, nor the number of the said writ petition could be given, the Tribunal ordered O.A.184 of 2006, directing the respondents to re-consider the case of the applicants and if the applicants are similarly situated to that of applicant in O.A.No.1153 of 2002, they shall extend the beneﬁts to them in the same manner as was done by Department of Space and Department of Atomic Energy. Aggrieved by the said orders, the present writ petition has been ﬁled stating that under Rule 33 of CCS (Pension Rules) the term ‘emoluments’ for the purpose of drawing pension, does not include special pay and therefore, the special pay does not qualify to be reckoned for the purpose of calculation of pension. The applicants ﬁled a counter-aﬃdavit stating that the direction in O.A.No.184 of 2006 is based on the decision in O.A.No.1153 of 2002, which has been assailed by ﬁling W.P.No.1710 of 2007 before the High Court, Delhi and the competent authority has decided to await ﬁnal outcome in the said writ petition. Since there was no stay of the order passed in O.A.No.1153 of 2002, the applicants have got issued notice to the respondents and since there is no response from them, they were constrained to ﬁle C.C.No.60 of 2007. While the contempt case is pending before the Tribunal, the writ petitioners ﬁled this writ petition and obtained interim suspension of the impugned order. Heard learned counsel for both the parties. Learned Standing Counsel for the writ petitioners mainly contended that the Tribunal has failed to appreciate Rule 9(21)(a) of the Fundamental Rules, which does not include the term ‘special pay’ to which a Government servant is entitled to. He further contended that as per Rule 33 of C.C.S.(Pension) Rules, the term ‘emoluments’, for the purpose of drawing pension, does not include special pay, and therefore, the special pay of Rs.2000/- sanctioned to the Scientists/Engineers does not qualify to be reckoned for the purpose of calculation of pension. He also contended that the oﬃcial memorandum, dated 03.02.1999, neither classiﬁed the special pay as pay under the provisions of FR 9(21)(a), nor is there any indication to that eﬀect, and therefore, the special pay, which does not fall under FR 9(21)(a) cannot be allowed as part of ‘emoluments’ provided for under Rule 33 of CCS (Pension) Rules for the purpose of calculation of pension. On the other hand, the learned counsel for the applicants contended that once the President of India has passed the oﬃcial memorandum, dated 03.02.1999, granting special pay, in lieu of higher pay scale, the question of restricting the said orders under Rule 33 of CCS (Pension) Rules for the purpose of counting retiral beneﬁts does not arise. Learned counsel further submits that as per Rule 9 (21) (a) of the Fundamental Rules, the special pay is also to be treated as part and parcel of the pay and even though Rule 33 of CCS (Pension Rules), does not cover the situation, the beneﬁt of special pay cannot be ignored for calculation and inclusion of the said beneﬁt for the purpose of pensionary beneﬁts, as it was granted in lieu of higher pay scales. Learned counsel also contended that it is settled principle of law that the points which were not raised before the primary authority, cannot be permitted to be raised for the ﬁrst time before the higher authority. Therefore, the writ petitioners are not entitled to raise the ground in respect of Rule 33 of the CCS (Pension) Rules for the first time before this Court. Rule 9 (21)(a) of the Fundamental Rules reads as under; ”(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 his 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, and (ii) overseas pay, special pay and personal pay; and (iii) any other emoluments which may be specially classed as pay by the President”. Rule 33 of the Fundamental Rules reads as under: “The expression ‘emoluments’ means basic pay as deﬁned in Rule 9(21)(a)(i) of the Fundamental Rules which a Government servant was receiving immediately before his retirement or on the date of his death; and will also include non-practising allowance granted to medical officer in lieu of private practice”. There is serious controversy between the parties as regards special pay of Rs.2,000/- being part of pay for all purposes including pensionary benefits. On consideration of the material placed before it, the Tribunal, has observed that under FR 9(21)(a) (iii) it is open to the President to grant any other emoluments, including special pay, which may be classed as pay of a Government servant; that the Presidential Order cannot be materially altered as modiﬁed by the subordinate authority by way of clariﬁcation memorandum dated 12.08.1999, issued in the subsequent oﬃcial memorandum and that the provisions of FR 9(21)(a)(ii) do not also exclude the special pay and personal pay as part of pay and accordingly the clariﬁcatory Oﬃcial Memorandum dated 12.08.1999 was quashed and set aside with regard to non-inclusion of the special pay as part of pay for the purpose of pension, having regard to the provisions of the earlier Oﬃcial Memorandum issued by the Government on 03.02.1999 and also directed to reconsider the matter and take appropriate decision, including the grant of special pay of Rs.2,000/- per month to Scilentists/Engineers ‘H’ in the Department of Space/ISRO with eﬀect from 01.01.1996 as part of pay, within three months from the date of order. On perusal of the detailed order passed by the Tribunal, we do not ﬁnd any illegality or material irregularity warranting interference by this Court. That apart, the writ petitioners are not entitled to raise the plea of Rule 33 of CCS (Pension) Rules for the first time before this Court. Hence, the writ petition is devoid of any merit and the same is accordingly dismissed. However, the writ petitioners are directed to implement the orders impugned within four months from the date of receipt of a copy of this order. No costs. ______________________ GULAM MOHAMMED, J _____________________ G. BHAVANI PRASAD, J Date:25.09.2008 sj ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{RLD}