IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4030 of 2006 1.THE UNION OF INDIA through General Manager North East Railway, Gorakhpur. 2.The Divisional Railway Manager, North East Railway, sonpur, Saran. 3.The Divisional Accounts Officer, North East Railway, At present East Central Railway, sonpur, Saran. 4.The Post Master, Begusrai.-----Petitioners. Versus 1.BISHUN DEO SINGH (since dead and substituted by his heirs), Son of Late. Matuk Singh, Retired Driver A, under Divisional Railway Manager, North East Railway, Sonpur (Saran) resident of village Barauni, Block No.2, Post-Barauni Deorhi, Police Station Barauni, District Begusrai. 2.The Registrar, Central Administrative Tribunal, Patna. --------------------Respondents. ----------- For the Petitioner : Mr. D.K. Sinha, Sr. Advocate For the Respondent no. 1 : Mr. Nageshwar Prasad Sinha, Adv. ---------- 6 23-03-2010 Today we have by our separate order in the connected Civil Review No.5 of 2008 recalled the order dated 27.11.2007 by which this writ petition was earlier disposed of. 2. Regard being had to the narrow compass in which controversy involved, we asked learned counsel for the parties whether they would address us on the merits of the writ petition. Learned counsel for the parties fairly agreed. 2 3. In view of the aforesaid, on consent of learned counsel for the parties, the writ petition is finally heard. 4. Mr. D.K. Sinha, learned Senior counsel for the petitioners submits that during pendency of this application the original applicant Bishundeo Singh had died leaving behind his wife Smt. Arti Devi, son Anand Prakash and a daughter Nutan Kumari, who had been substituted in the connected Civil Review application No.5 of 2008 by order dated 23.6.2009 allowing I.A. NO.378 of 2009 filed thereunder. He submits that in view of the aforementioned order and the substituted heirs being already on record in the connected review application which has been allowed by us by order dated 23.2.2010 passed today recalling the earlier order dated 27.11.2007 of this writ application, heirs named above be also substituted in this writ application. Mr. Nageshwar Prasad Sinha, learned counsel appearing on behalf of the substituted heirs has no objection to the prayer made by Mr. D.K.Sinha and accordingly we direct that name of the original respondent no.1 Bishundeo Singh would be deleted and in his place Smt. Arti Devi, Anand Prakash and Nutan Kumari would be 3 substituted as respondent nos. 1 (a), 1(b) and 1(c). 5. This writ application is directed against the order dated 23rd November, 2004 of the Central Administrative Tribunal, Patna Bench Patna in O.A. No.85 of 2003, whereby and whereunder, the reduction of pension of the respondent applicant before the Tribunal with retrospective effect, i.e, from 1.6.1980 as directed in the order of the Financial Advisor and Chief Accounts Officer (PEN), N.E. Railway, Sonpur has been set aside with a direction to continue the payment of pension to the original applicant for which he would entitle prior to passing of the above order of the authority dated 15.11.2000. 6. Mr. D.K.Sinha, learned counsel for the petitioners while assailing the aforementioned order of the Tribunal has confined his submission that there was a wrong fixation of pension of the original application, inasmuch as, when he had retired on 31.5.1080 while holding the post of driver (mechanical) in the North East Railway, he was not entitled for calculation of his pension on the basis of his total emoluments also taking into account the running allowance. In this context, Mr. Sinha has 4 referred to Railways Board decision in its letter No. F (E-III) 98-PNT-29 dated 29.12.1999 which according to him clearly prohibits running allowance to be taken into account for calculation of notional pay for the purposes of fixation of pension. He has also submitted that the impugned order passed by the Tribunal is not only contrary to the aforementioned policy decision of the Government of Indian prohibiting the running allowance to be taken into account for calculation of pension, but also based on order of the Principal Bench of the Central Administrative Tribunal in the case of „S.R. Dhingra Vs. Union of India‟ which had quashed the circular of the Railway Board dated 19.12.1999. Mr. Sinha in this context submits that the said judgment of the Central Administrative Tribunal, Principal Bench dated 22.1.2002 in the case of S.R. Dhingra, however, on appeal by the Union of India before the Delhi High Court the same was still subjudice and in fact the Apex Court had issued notice for transfer of all such cases, inasmuch as, different orders were being passed on the same issue with regard to running allowance being taken into consideration for the purpose of calculation and payment 5 of pension. Mr. Sinha thus submits that the Tribunal had two options either to await the judgment of the Apex Court in Transfer Petition No.278 of 2005 (Union of India Vs. S.R. Dhingra) or in the alternative to go into the question of merits by deciding as to whether running allowance could form part on the component in fixation of notional pay and consequently pension of the retired employees. 7. Mr. Nageshwar Pd. Sinha, who appears for the heirs of the original applicant Bishundeo Singh, was not in a position to justify the running allowance to be taken into account for calculation of notional pay and the consequential pension. He had, however, submitted that the payment of pension of original applicant Bishundeo Singh and after his death family pension of the widow had been stopped as a whole and such position still continues on account of interim order passed by this Court on 23.2.2007 in this application. 8. We have considered the materials on record as also the impugned order of the Tribunal and we find that the entire order of the Tribunal is based only on the order of the Principal Bench of the Central Administrative 6 Tribunal in the case of S.R. Dhingra Vs. Union of India. In view of the fact that the said judgment had not acquired finality and is still pending before the Delhi High Court and the consequential transfer petitioner before the Apex Court and the same by itself ought not to have been the basis for deciding this issued. The Tribunal, in fact, ought to have gone into the main issue as to whether running allowance could be taken into consideration for calculation of notional pay and the consequential pension. 9. We have, however, addressed ourselves to the circular of the Government of India dated 19.12.1999 (Annexure-2 to this application) which is a communication to all the controlling authorities of the railways as with regard to revision in pension/family pension w.e.f. 1.1.1996 as a consequence of implementation of Government of India decision in the recommendation of Vth Central Pay Commission in respect of pre-1986 pensioners. For the sake of brevity and clarity the relevant portion of the circular is quoted hereinbelow:- 7 “Sub: Implementation of Government of India decision on the recommendations of Vth Central Pay Commission- Revision of Pension of pre- 1986 pensioners. Ref: Board‟s letters No. F(E)/98/PNI/2 dtd. 10.03.1998 and NO. F(E)III/98/PNI/29 dtd. 15.1.1999. In accordance with the provisions contained in Board‟s Letter No. F(E)/98/PNI/29 dtd. 15.1.199 with from 1.1.1996 pension/family pension in respect of all pensioners irrespective of the date of retirement shall not be less than 50%/30% of the minimum pay in the revised scale of pay introduced with effect from 1.1.1996. Representations have been received for taking into consideration the Running Allowance at the then existing rates for being added to the pay re-fixed on notional basis as on 1.1.1986 and also to add the Running Allowance at the revised rates to the minimum of the revised scale of pay while considering stepping up consolidated pension on 1.1.1996. The matter has been examined by the Board in great detail. The Running Allowanced granted to the running staff does not form part of the scales of pay. It is a separate element, although it is taken into account for the purpose of computation of pension. For revision of pension of pre-1986 pensioners in terms of DOP & PW‟s O.M. dtd. 10.02.1998 circulated on the Railways on 10.03.1998, the notional pay finally fixed as on 1.1.1986 shall only be treated as average emoluments for calculation of pension in terms of these orders and the pension shall be calculated as on 1.1.1986 as per the pension formula then prescribed. It is therefore clarified that: 8 (i)Running Allowance is NOT to be taken into consideration after re- fixation of pay on notional basis on 1.1.1986 in terms of DOP & PW‟s O.M. No.45/86/87-P & PW (A) Pt. III dtd.10.02.1998 circulated vide Board‟s letter No. F(E)III/98/PNI/2 dtd. 10.03.1998. (ii)Running Allowance is also NOT to be added to the minimum of the revised scale of pay as on 1.1.1996 in cases where consolidated pension/family pension is to be stepped up to 50%/30% in terms of Board‟s letter No.F(E)/98/PNI/29 dtd. 15.01.1998.” 10. From the aforementioned policy decision of the Government of India it is absolutely clear that when the Government of India decision on the issue of implementation of the recommendation of Vth Central Pay Commission was to be made applicable for revision of pension for pre-1986 pensioners, a conscious decision has been taken that running allowance was not to be taken into consideration in the revised scale of pay while considering stepping up consolidated pension on 1.1.1996. The Government of India in this respect had made it clear that the running allowance granted to the running staff does not form part of the scale of pay. Such policy decision, in fact, had clearly envisaged that for revision of pension of pre-1986 pensioners notional pay 9 finally fixed as on 1.1.1986 shall only be treated as average emoluments for calculation of pension and the pension shall be calculated as on 1.1.1986 as per the pension formula. 11. There is no dispute that the computation of pension has to be made as per the pension rules. In such pension rules it is the basic allowance and the dearness allowance which has to be taken into consideration for fixation of pension. The running allowance, in fact, is an additional pay for such employees of the railways who are allocated the field duties. It is also not given to all the employees of the railways is a particular type of allowance which are not to be computated for computation of notional pay or fixation of pension. That apart, it will always be open for the Government to come out with unified rationalized scheme of fixation of pension of such employees who have been retired earlier and the only safeguard to be maintained by the Government for fixation of such pension is that the pension already being received by the pensioner would not be reduced on account of such re-fixation and will be uniform in application for all categories of employees. 10 12. In the present case, the original applicant before the Tribunal had retired in the year 1980 and was only entitled for protection of his earlier pension while being given benefit of Vth Pay Revision Committee. The decision for such categories of employees, in fact, with the consolidated pension/family pension was to be stepped up up to 50% 30% of the minimum pay or the revised pay introduced w.e.f. 1.1.1986, but without taking running allowance into consideration. Such policy decision being a fall-out of the conscious uniform decision of the Government of India in respect of the category of pre-1989 pensioners cannot be said to be irrational or arbitrary. 13. Accordingly we would allow this application and set aside the impugned order passed by the Tribunal dated 23rd November, 2004 in O.A. No.85 of 2003, but it is made clear that neither the original applicant nor his dependent family members after his death would be subjected to any recovery till the date of re-fixation of pension in terms of the Government of India circular dated 29.12.1999. In other words, the respondents will not be entitled to recover any amount but then they 11 would re-fix the pension of the original applicant in terms of the Government of India circular dated 29.12.1999 and the payment of pension to the original applicant w.e.f. 1.1.1986 shall be made strictly in terms of the mode of calculation prescribed in the circular dated 29.12.1999 till the death of the original applicant who is said to have died during pendency of this writ application and has been substituted by his legal heirs. The family pension also after death of original applicant will be re-calculated in terms of the Government of India circular dated 25.12.1999 and arrears and current payment there of will be made to the eligible heirs of the original application within a period of three months from the date of receipt/production of a copy of this order. 14. This application is accordingly allowed to the extent indicated above. However, there will be no order as to costs. (Dipak Misra, C.J.) Abhay Kumar ( Mihir Kumar Jha, J.)