Mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITON NO.188 OF 1999 1.Shri G.D. Kulkarni, ) 2.G.Eranna ) 3.C.B. Kelgeri ) 4.C.R. Kutty ) 5.K.M. Muzumdar ) 6.Miss K.M. Mirchandani ) 7. Patankar ) 8. K.K. Prabhakaran ) 9. D.G.Sawant ) 10. P.G. Vijekar ) 11. Y.B. Bhopatkar )..Petitioners Vs. 1.The Airports Authority of India ) (National Airports Division) ) 2.Union of India through its Regional ) Pay & Accounts Officer )....Respondents Mr. K.M. Jawle for the Petitioners Mr.Girish Kulkarni with Mr. S.K. Chari and Ms. Kavita Anchan i/b. M/s. M.V. Kini & Co., for respondent No.1. Mr. Y.R. Mishra, for respondent No.2. CORAM : FERDINO I. REBELLO & A.A. SAYED, JJ. DATED : 9th April, 2010 JUDGMENT (PER FERDINO I. REBELLO, J.): The petitioners were originally employed with the International Airport Authority of India. In 1985 an Act was passed being National Airports Authority Act, 1985, hereinafter referred to as the Act, whereunder the National Airports Authority was constituted. It was responsible for maintenance of the domestic Airports in the country. Originally the administration of the various domestic Airports in the country came within the direct jurisdiction of the Ministry of Civil Aviation of the Union of India and the Petitioners were employees of the Union of India through its Ministry of Civil Aviation. 2. In 1995 both NAA as well as IAAI were amalgamated and merged to form the Airports Authority of India with two separate Divisions viz. The National Airports Division (NAD) and the International Airports Division (IAD). The 1st respondent i.e. the Airports Authority of India was formed and constituted under the Airport Authority of India Act, 1994. On constitution of the 1st Respondent Corporation as an autonomous body, the responsibility of maintenance, management and the administration of various domestic Airports in the country, the service of all employees employed in various capacities at the domestic Airports were transferred to the 1st respondent initially on deputation in the year 1986 with effect from 1st June, 1986 and decision thereafter was taken by the Government of India to absorb the service of all the aforesaid employees including the petitioners with the 1st respondent. Accordingly, the petitioners were absorbed in the 1st Respondent Corporation with effect from 2nd October, 1989. 3. According to the petitioners they being in employment with the Ministry of Civil Aviation for the purpose of their pensionary benefits they were covered under the Central Civil Service (Pension) Rules 1972, hereinafter referred to the said CCS Rules. On being absorbed in the 1st respondent Corporation the petitioners as well as all other similarly situated employees, whose services were absorbed in the 1st Respondent Corporation were called upon to exercise their option with regard to their pensionary benefits. Three options were given which included to be governed by the pensionary benefits available under the Government of India at the time of retirement in accordance with the Central Government Rules in force at that time. The petitioners exercised this option some time in the year 1990. They elected to be governed for pensionary benefits avilable under the Government of India at the time of retirement. The petitioners have retired between the period 31st May, 1990 and 30th April, 1995. 4. In terms of the law at the time of retirement the last drawn pay of each of the petitioners were to be treated as “emoluments” as defined in Rule 33 of the CCS Rules 1972 for calculating and working out the pensionary benefits payable to the petitioners under CCS Rules 1972. The relevant Rule reads as under:- “33. The expression ‘emoluments’ means pay as defined in Rule 9(21) of the Fundamental Rule (including Dearness Pay as determined by the Order of the Government issued from time to time) which a Government servant was receiving immediately before his retirement or on the date of his death.” A note was inserted and added to Rule 33 vide Notification dated 30th June, 1977 and became effective from 16th July, 1977, which reads as under:- “Note 10. When a Government servant has been transferred to an autonomous body consequent on a conversion of a Department of the Government into such a body and the Government servant so transferred opts to retain the pensionary benefits under the Rules of the Government emoluments drawn under the autonomous body shall be treated as emoluments for the purpose of this Rule”. 5. Accordingly the petitioners emoluments were fixed and the pensionary benefits available to the petitioners was calculated and worked out accordingly. In addition to the basic pension the petitioners were entitled to and were paid Dearness Relief as payable to other Central Government Pensioners, governed by the CCS Rules, 1972. The other Central Government Pensioners governed by the CCS Rules 1972 were being paid Dearness Relief on their basic pension as per the accepted recommendation of the 4th Pay Commission at the material point of time. Accordingly the petitioners were paid Dearness Relief on their basic pension as per the accepted recommendation of the 4th Pay Commission. Payment of pension every month was made directly in the State Bank of India. 6. On 1st September, 1997 the pension payable to the petitioners was revised by the Respondents with effect from 1st January, 1989 and necessary instructions were issued to the State Bank of India calculating the revised pension payable to the petitioners. The revision was effected with retrospective effect from 1st April, 1992. Even subsequent to the Revision of this basic pension the Dearmess Relief payable to the petitioners was calculated on the revised amount as payable to all Central Government Pensioners who are governed by the CCS Rules 1972. The petitioners continued to be paid revised pension along with Dearness Relief as applicable to Central Government Pensioners. In the meanwhile the 5th Pay Commission recommendations were submitted and in so far as the Pensioners are concerned they were accepted as on 27th October, 1997. The Notification accordingly was issued. This new revision of pension was granted with retrospective effect from 1st January, 1996. 7. Sometime in or around August, 1998 the petitioners received their respective Pension Pay Orders from the 2nd Respondent. The said Pension Pay Orders bore amongst others the remarks that the Holder of PPO No. who is an IDA Pensioner/Family Pension shall be payable in terms of orders issued by Department of Public Enterprises. It may be mentioned that there appears to have been a revision in the pay scales of the employees. This revision of pay scales based on IDA pattern was also made available to the petitioners. Furthermore, the Dearness Relief was calculated in terms of the basic pay as revised. The petitioners also received the arrears in terms of the IDA pay scale. Between 1996 and 1998 the petitioners were paid pension based on the revised in a pay scales that continued to draw central Government Dearness Relief. 8. To the petitioners surprise each of the petitioners received communication dated 20th August, 1998 and the respondents also forwarded to the Manager, State Bank of India the amended PPO setting out the revised pension and the Dearness Relief which was applicable to the I.D.A. Employees. 9. The petitioners rely upon Rule 70 of the CCS Rules, 1972 which refers to Revision of Pension after Authorisation. It is the case of the petitioners that once the pension is authorised after final assessment it cannot be revised to the disadvantage of the Government employee. Rule 70 of the CCS Rules 1972 sets out the circumstances under which Pension can be revised. According to the petitioners they being governed by Rule 70(2) of the CCS Rules, it was not open to the respondents to amend the PPO. 10. The petitioners being aggrieved by the said action have preferred the present petition. On 14th July, 1999 a learned Bench of this Court was pleased to issue a direction directing the respondents not to enforce and/or act in furtherance of their communication. Rule had been issued on April 9, 1999 and stay had been granted in terms of prayer clause (d) on April 9, 1999. Thus in so far as the petitioners are concerned they continue to receive their pension based on the IDA pay scale and Dearness Reliefs in terms of the Central Dearness allowance. 11. An affidavit was filed on behalf of the respondent No.2 by T.V. Rajeevan, Pay and Accounts Officer. It is set out therein that between 1989 and 1996 the pay pattern of the Government of India and the National Airport Authority was the same in as much as retirement benefits were available on par to the petitioners who have been absorbed by Respondent No.1 during the period. In 1996 a Revision of pay took place in the National Airport Authority with retrospective effect from 2nd October, 1989 in the Industrial Dearness Allowance Scale (IDA Scale pattern). The petitioners are admittedly governed by IDA pattern. The petitioners by virtue of this revision received lump-sum amount as and by way of arrears of pay with effect from 2nd October, 1989 as per the IDA pattern from Respondent No.1. The retirement benefits were revised as it was IDA pattern. Such retirement benefits were made available to the petitioner from the date of their superannuation. 12. It is the case of the petitioners that they were informed by the Ministry of Civil Aviation and Tourism by letter of 27th July, 1998 that some banks have inadvertently allowed central Dearness Allowance to the Public Sector Undertakings absorbees such as the petitioners as also revised pension was fixed (IDA Scale) in accordance with the Revised Central Pay Scale and as a result of the implementation of the 5th Pay Commission. Various directions thereafter came to be issued by which the banks were directed to compute the Dearness Allowance as per IDA pattern issued by the D.O. Of Public Enterprises. No change had been effected in the pension which is 50% of the last pay drawn. 13. An additional affidavit was filed by Shri R. Nagarajan, Manager (P. & A) of the Airports Authority of India. In the said affidavit it is pointed out that pay of all employees were revised under the IDA scale and arrears being difference of pay and allowances were paid to the employees. Accordingly pay of the petitioners was also revised under the IDA Scale. The petitioners had switched over to IDA Scales inspite of their earlier stands to continue with Government Rules in respect of payment of pension. The petitioners had also received without protest the arrears on account of revision of their pay under the IDA Scales. 14. There is no dispute that the petitioners are retired. The last of them having retired on 30th April, 1995 and the first one on 31st May, 1990. The IDA pay scales were made applicable in 1996 and the pay was revised with retrospective effect from 2nd October, 1989 under Industrial D.A. Pattern. The petitioners were paid arrears and their pension revised in terms of their basic in the IDA pattern. As noted earlier when the petitioners were given option of electing to receive their pension applicable to Central Government employees they did so. Whilst applying IDA pattern of pay scales to the petitioners, the petitioners were not given the option to elect to receive their pay scales in the IDA pattern as at that time they had retired. The difference was paid directly to them through their banks. 15. The question for our consideration are:- (a) Whether it was open to the respondents when the petitioners are elected to be governed by the Central Pay Scale to make applicable the IDA pay scales without the consent of the petitioners and consequently the pension benefits? (b) Merely because the difference in pay was deposited in their bank account can it be held to be held that they have elected to switch over from central pay scale to IDA pay scale and if not what would be the consequences? (c) Are the petitioners entitled while continuing to draw pension in IDA pay scale to receive D.A. On their pension based not on the IDA pay scale but the Dearness Allowance under the Central Pay Scales? 16. To understand the controversy we may gainfully reproduce Rule 70 of the CCS Rules:- “70. Revision of Pension after Authorisation: (I) Subject to the provisions of sub-rules 8 and 9 pension once authorised after final assessment shall not be revised to the disadvantage of the Government Servant, unless such revision becomes necessary on account of detection of a clerical error subsequently: Provided that no revision of Pension to the disadvantage of the Pensioner shall be ordered by the said office without the concurrence of the Department of retired Personnel and administrative reforms if the clerical error is detected after a period of two years after the date of authorisation of Pension. (ii) For the purpose of sub-rule (I) the Government Servant shall be served with a Notice by a Head requiring him to refund excess payment of pension within a period of two months from the date of receipt of Notice by him. (iii) In case the Government Servant fails to comply with the Notice, the Head of Office shall, by order in writing, direct that such excess payment shall be adjusted in instalments by short payment of pension in future in one or more instalment, as the Head of Office may direct.” 17. Rule 70 on its proper construction is clear. That after final assessment the pension once authorised after final assessment shall not be revised to the disadvantage of the Government Servant unless such revision becomes necessary on account of detection of a clerical error subsequently. That is not the case in this petition. Further before effecting the revision the petitioners were not given a chance to elect. In other words the revised IDA pay scales were made applicable without an opportunity to the petitioners either to opt for the same or to reject the same. 18. To our mind the position of law would be clear on a proper construction of Rule 70 of the CCS Rules. Once the petitioners pension is fixed it is not open to the respondents to revise the pension suo moto unless it is so available under Rule 70. The revision of pension which resulted in disadvantage to the petitioners would have civil consequences even though there may not be a statutory provision the principles of natural justice and fair play would require that the petitioners were given an opportunity of giving their say in the matter. That was also not done in the instant case. The other aspect of the matter is that the petitioners having retired after receiving the Central Pay Scale the question of the respondents making applicable the IDA pay scales to the petitioners would not arise. Orders could have been given or revision effected only if the petitioners were drawing pay in the IDA scale on their own volition. Admittedly, in the instant case that was not the position. The consequences of applying the IDA pay scale ought to have been that the petitioners had to be paid D.A., also based on the IDA pattern. Instead of that the petitioners were being paid in the Central Pay pattern. It is only in 1998 when an order was passed to correct the same that the petitioners came to this Court. 19. In our opinion, considering what we have considered above and considering Rule 70 of the CCS Rules, 1972 the action of the respondents cannot be supported and consequently they will have to withdraw the notices, directing recovery. At the same time the petitioners also cannot take advantage of the benefit they have received which they were not entitled to. The arguments advanced in support of the petitioners earlier by relying in the case of Videsh Sanchar Nigam Ltd. & Anr. vs. Ajit Kumar Kar & Ors., (2008) 11 SCC 591 would not be applicable to the facts of the present case. There the Supreme Court observed that the Government can not withdraw the benefit of excess payment which was mistakenly made. The respondents accordingly to re-fix the pension of the petitioners based on central pay scale. Similarly, once the central pay scales are applicable the Dearness Allowance is also to be paid based on the said Central pay scales. The respondents will be entitled also to effect changes. After effecting such changes if the petitioners have received any additional payments the respondents are entitled to adjust the same against the pensionary benefits which the petitioners are entitled to. On behalf of the petitioners learned Counsel fairly contends that considering the position of law as it now stands they have no objection to the same. In the instant case in view of the stay order the petitioners continue to be paid Dearness Allowance based on the Central Pay Scale. 21. Considering the above this petition is disposed off, by directing the respondent to consider the basic pay of the petitioners under Central Pay Scale which they would be entitled to on the date of retirement and subsequent revision if any applicable and if any of the petitioners have received any excess amount the excess amount on re-fixation be adjusted from the penionary dues which the petitioners will be entitled to in terms of law. 22. Rule made absolute accordingly. No order as to costs. (A.A. SAYED, J.) (FERDINO I. REBELLO,J.)