C.W.P. No. 1682 of 2003 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 1682 of 2003 Date of Decision: November 23, 2010 Smt. Savitri Devi ...Petitioner Versus Union of India and others ...Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MS. JUSTICE RITU BAHRI Present: Mr. Ashok Sharma Nabhewala, Advocate, for the petitioner. Mr. Piyush Kant Jain, Addl. A.G., Punjab. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The instant petition filed under Article 226 of the Constitution of India is directed against order dated 16.3.2002 (Annexure P-18), passed by the Registrar, High Court-respondent No. 3 fixing the pension of the husband of the petitioner at 50% of the minimum pay in the revised scale of pay introduced w.e.f. 1.1.1996. Further challenge has been made to the notification dated 10.2.1998 (P-8) whereby the benefit of earned increments in the pre-revised scale has been denied in the notional fixation. A mandamus has been sought for directing the respondents to refix the pension w.e.f. 1.1.1996, of the deceased husband of the petitioner, namely, Shri Ved Parkash, who retired from the post of District and Sessions Judge. 2. The factual matrix, which has remained uncontroverted, is that the 1 C.W.P. No. 1682 of 2003 husband of the petitioner, namely, Shri Ved Parkash Sharma, joined the Punjab Judicial Service as a Judicial Magistrate on 9.4.1948. On 18.1.1966, he was promoted as Additional District and Sessions Judge and on 22.2.1971 he was confirmed in the Superior Judicial Service as an Additional District and Sessions Judge. On 30.4.1977, he superannuated from service on attaining the age of retirement as District and Sessions Judge. At that point of time he was in the Selection Grade of ` 2000-2250 and the last pay drawn by him was ` 2,250/-, as is evident from letter dated 5.9.1977, issued by the High Court fixing his pay in the revised grade of ` 2000-125/2-2250 (P-1). In reference to a representation dated 11.11.1983 made by the husband of the petitioner regarding fixation of pension, it was communicated to him vide letter dated 5.12.1983 that his pension case has been decided in accordance with the All India Services (Death-cum-Retirement Benefits) Rules, 1958 (for brevity, ‘the 1958 Rules’) and not under the Central Civil Services Pension Rules, 1972 (Annexure P-2). 3. On 11.6.1987, the petitioner’s husband made a representation to the Accountant General (A&E) Punjab-respondent No. 5 for sanction of additional pension w.e.f. 1.1.1986 in the light of Government of India, Ministry of Personnel, Public Grievances & Pensions, O.M. No. 2/1/87-PIC-1, dated 16.4.1987 (P-3). On 16.6.1987, respondent No. 5 issued directions to the Treasury Officer, Kapurthala, regarding implementation of the Government of India decision dated 16.4.1987. It was also stated in the said communication that difference of pension between pre-revised pension and revised pension of Shri Ved Parkash Sharma be added with effect from 1.1.1986 in the partly consolidated pension worked out by the pension disbursing authority. Thereafter arrears of pension, if any, were to be paid to 2 C.W.P. No. 1682 of 2003 him (P-4). In this manner, the revised pension of Shri Ved Parkash Sharma was raised from ` 975/- to ` 1,063/- w.e.f. 1.1.1986. 4. On 9.4.1994, the Government of India set up 5th Central Pay Commission, which submitted its report on 30.1.1997 with various recommendations regarding structure of emoluments and allowances, conditions of service, retirement benefits of Central Government employees and members of All India Services and Armed Forces. The report of the 5th Pay Commission was accepted by the Union of India-respondent No. 1 with certain modifications vide resolution dated 30.9.1997 (P-5). On 30.9.1997 itself, the Ministry of Personnel, Public Grievances and Pensions also broadly accepted the recommendations of the 5th Pay Commission as contained in Part VI to Volume III of the Report of the Commission on pensionary benefits to Central Government Civil employees, including employees of the Union Territories and members of the All India Services (P-6). 5. On 27.10.1997 (P-7), the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Pension and Pensioners Welfare issued an Office Memorandum for implementation of Government’s decision on the recommendations of the 5th Central Pay Commission regarding revision of pension of pre-1986 pensioners/family pensioners etc. Para 4.1 of the said O.M. deals with consolidation of Pension/Family Pension w.e.f. 1.1.1996, which reads thus: “4.1 The pension/family pension of existing pre-1996 pensioners/family pensioners will be consolidated with effect from 01.01.1996 by adding together: i) The existing pension/family pension. ii) Dearness Relief upto CPI 150 i.e. @ 148%, 111% 3 C.W.P. No. 1682 of 2003 and 96% of Basic Pension as admissible vide this Department’s O.M. No. 42/8/96-P&PW(G) dated 20.03.1996. iii) Interim Relief I. iv) Interim Relief II. v) Fitment weightage @ 40% of the existing pension/family pension. The amount so arrived at will be regarded as consolidated pension/family pension with effect from 01.01.1996. The upper ceiling on pension/family pension laid down in the Department of pension and Pensioners Welfare Office Memorandum No. 2/1/87- PIC II dated 14.04.1987 has been increased from Rs. 4500/- and Rs. 1250/- to 50% and 30% respectively of the highest pay in the Government (The highest pay in the Government is Rs. 30,000 since 01.01.1996). Since the consolidated pension will be inclusive of commuted portion of pension, if any, the commuted portion will be deducted from the said amount while making monthly disbursements.” 6. Para 9.1 of the said O.M. further stipulated that the consolidated pension/family pension as worked out under Para 4.1 would be treated as final ‘Basic Pension’ with effect from 01.01.1996 and would qualify for grant of Dearness Relief sanctioned thereafter in respect of following categories of pensioners/family pensioners: “(i) Pensioners, who retired between the period from 01.01.1986 to 31.12.1995. (ii) Family pensioners, who became entitled for family pension 4 C.W.P. No. 1682 of 2003 during the period from 01.01.1986 to 31.12.1995 and were sanctioned family pension @ 30% of the last pay drawn by the deceased employees.” 7. For other pensioners/family pensioners, it was provided under Para 9.2 of the said O.M. that detailed instructions regarding fixation of their pay on notional basis/revision/consolidation of pension/family pension would be issued separtely and the said O.M. would apply as an interim measure to these categories so as to provide them immediate relief. Thereafter on 10.2.1998 (P-8) another O.M. containing detailed instructions was issued by the Government of India. Para 2 of the said O.M. provided the manner for notional fixation of pay of the pre-1986 retires and the relevant extract of the same is reproduced as under:- “2. ......Accordingly, pay of all those government servants who retired prior to 01.01.1986 and were in receipt of pension as on 01.01.1986 and also in cases of those Central Govenrment employees who died prior to 01.01.1986, in respect of whom family pension was being paid on 01.01.1986, will be fixed on notional basis in the revised scale of pay for the post held by the pensioner at the time of retirement or on the date of death of Govenrment employee, introduced subsequent to retirement/death of Government employee consequent upon promulgation of revised pay Rules on implementation of recommendations of successive Pay Commissions or of award of Board of Arbitration or judgment of court or due to general revision of the scale of pay for the post etc. the number of occasions on which pay shall be required to be fixed on notional basis in each individual case 5 C.W.P. No. 1682 of 2003 would vary and may be required to be revised on several occasions in respect of those employees who retired in the ‘fifties and sixties’. In all such cases pay fixed on notional basis on the first occasion shall be treated as pay for the purpose of emoluments for re-fixation of pay in the revised scale of pay on the second occasion and other elements like DA/Adhoc DA/ Additional DA, IR etc. based on this notional pay shall be taken into account. In the same manner pay on notional basis shall be fixed on subsequent occasion. The last occasion shall be fixation of pay in the scale introduced on the basis of Fourth Central Pay Commission and made effective from 01.01.1986. While fixation of pay on notional basis on each occasion, the pay fixation formula approved by the Government and other relevant time shall be strictly followed. However, the benefit of any notional increments admissible in terms of the rules and instructions applicable at the relevant time shall not be extended in any case of refixation of pay on notional basis. The notional pay so arrived as on 01.01.1986 shall be treated as average emoluments for the purpose of calculation of pension and accordingly the pension shall be calculated as on 01.01.1986 as per the pension formula then prescribed. The pension so worked out shall be consolidated as on 01.01.1996 in accordance with the provisions contained in paragaph 4.1 of this Department’s Office Memorandum No. 45/86/97-P&PW (A) Part-II dated the 27th October, 1997 and shall be treated as basic pension for the purpose of grant of Dearness Relief in future.” 6 C.W.P. No. 1682 of 2003 8. On 11.8.1998, a notifiction was issued by the Government of India carrying out an amendment in the Indian Administrative Service (Pay) Rules, 1954. The amendment was made effective w.e.f. 1.8.1997. In the said notification, an explanatory memorandum was also inserted that the Central Government has decided to implement the recommendations made by the Fifth Central Pay commission relating to the grant of Central (Deputation on Tenure) Allowance in respect of the All India Services with effect from the 1st day of August, 1997. With a view to implement this decision, the Indian Administrative Service (Pay) Rules, 1954, were also amended w.e.f. 1.8.1997 (P-9). 9. On 12.11.1998, the State of Punjab-respondent No. 4, implemented the judgment of Hon’ble the Supreme Court rendered in the case of All India Judges Association v. Union of India and others, and revised/granted new pay scales to the Judicial Officers working in the State of Punjab w.e.f. 1.1.1996. In the category of Superior Judicial Service, the pre- revised selection grade scale of ` 5000-6700 was revised to ` 18600-22100 w.e.f. 1.1.1996 (P-10). 10. On 17.12.1998, Government of India issued a notification to the effect that w.e.f. 1.1.1996, penson of all pensioners irrespective of their date of retirement would not be less than 50% of the minimum pay in the revised scale of pay introduced w.e.f. 1.1.1996 of the last post held by the pensioner (P-11). The said notification was also sent to all the State Governments, vide D.O. letter dated 31.12.1998, to give their consent/comments within 15 days of the receipt of the D.O. letter and in case of non-receipt of any reply by 11.1.1999, it was to be presumed that the State Government had no objection to the proposed amendment (P-12). 7 C.W.P. No. 1682 of 2003 11. On 14.1.1999 (P-13), Government of India issued a notification amending the 1958 Rules. In clause (b), sub-rule (1) of Rule 18 of the 1958 Rules, the following proviso was substituted:- “Provided that the pension calculated under this rule shall not be more than rupees fifteen thousand per month subject to the condition that the full pension shall in no case be less than fifty per cent of the minimum of the revised scale of pay introduced with effect from the Ist day of January, 1996 for the post last held by the member of the Service at the time of his retirement”. 12. Furthermore, in Rule sub-rule (2) of Rule 22B of the 1958 Rules, for the words “the scale of family pension admissible shall be thirty per cent of the basic pay” the following has been substituted: “With effect from the 1st day of January, 1996, family pension shall in no case be less than thirty per cent of the minimum pay in the revised scale of pay introduced with effect from the 1st day of January, 1996 of the post last held by the pensioner or the deceased member of the Service, as the case may be.” 13. On 14.7.1999, the Accountant General (A&E)-respondent No. 5 refixed the pension of petitioner’s husband as 50% of the revised pay scale of ` 18600-22100 at ` 9,300/- even though he had retired at the maximum of the pre-revised selection grade scale (P-15). Feeling dissatisfied with the said refixation of pension, the husband of the petitioner made a representation to the High Court on 2.4.2000 (P-16). On 23.11.2001, the husband of the petitioner unfortunately expired. Eventually, on 16.3.2002, the High Court- respondent No. 3 after seeking clarification from Government of India, rejected the claim of the petitioner’s husband by observing that there is no 8 C.W.P. No. 1682 of 2003 provision of notional fixation of pay of pre-1986 pensioners in the Government of India’s letter dated 14.1.1999 and as such pension/family pension already authorised by respondnt No. 5 was in order. The impugned letter dated 16.3.2002 reads thus: “ I am directed to refer to your letter dated 02.04.2000 on the above noted subject and to say that as clarified by the Director, Government of India, Ministry of Personnel Public Grievances and Pension, Department of Personnel and Training vide letter dated 04.02.2002, pension/family pension of the pre-1986 pensioners is to be revised in accordance with the Government of India letter No. OM No. 45/86/97-P&PW(A) Part-II dated 27.10.1997. Accordingly your pension/family pension has been consolidted after fixation of notional pay as on 01.01.1986 by adding Dearness Allowance, I.R. I, I.R. II and 40% weightage in basic pension which works out to Rs. 7,750/- and 3,566/- respectively. However, since these amounts were less than 50% and 30% of the minimum of the scale of pay introducing w.e.f. 01.01.1996 i.e. 18,600-22, 100 in your case pension and family pension were authorised @ Rs. 9,300/- and Rs. 5,580/- resectively after due verification by the Accountant General (A&E), Punjab. It has further been intimated that there is no provision for notional fixation of pay of the pre-1986 pensioners in the Government of India letter dated 14.01.1999 and as such pension/family pension already authorised by the Accountant General (A&E), Punjab vide its letter dated 14.07.1999 are in order.” 14. Mr. Ashok Sharma Nabhewala, learned counsel for the petitioner 9 C.W.P. No. 1682 of 2003 has argued that there is ample material on record to support the claim of the petitioner’s husband for grant of one increment. According to the learned counsel the amendment dated 14.1.1999 (P-13), expresly provides that the pension calculated under Rule 18(1)(b) of the Rules shall not be more than ` 15,000/- per month subject to the condition that the full pension in no case was to be less than 50% of the revised scale of the pay introduced w.e.f. 1.1.1996 in respect of the post last held by the member of the service at the time of his retirement. Learned counsel has made specific reference to the letter dated 17.12.1998 (P-11) and argued that the petitioner’s husband had reached at the maximum of the pre-revised selection grade of ` 2000-2250 i.e. at the stage of ` 2,250/-. By implementation of the judgment of Hon’ble the Supreme Court rendered in All India Judges Association’s case (supra) by the State of Punjab vide notification dated 12.11.1998 (P-10), the revised scale of pay in the category of Superior Judicial Service comes out to be ` 5000-150- 5900-6700 w.e.f. 1.1.1986 and further to ` 18600-500-22100 w.e.f. 1.1.1996. Thus, the minimum of the pay scale would come to ` 18,600/-. According to the learned counsel the benefit of one increment for three increments or more has not been reflected and thereby the petitioner’s husband has been deprived of an increment of ` 500/- in the revised scale of ` 18500-500-22100. Learned counsel has submitted that instead of 50% of the minimum of the pay scale, which comes to ` 9,300/- the pension of the petitioner’s husband is required to be refixed at ` 9,800/- w.e.f. 1.1.1996 and family pension is also liable to be revised accordingly. 15. In the separate written statements filed on behalf of respondent No. 3, respondent No. 4 and respondent No. 5 respectively the stand already taken in the impugned order dated 16.2.2002 (P-8) has been reitearted and 10 C.W.P. No. 1682 of 2003 sought to be justified. 16. After hearing learned counsel for the parties we are of the view that the issue raised in the instant petition is no longer res integra. A similar petition, namely, CWP No. 6871-CAT of 2004 (Raj Kumar v. Union of India and others) came up for consideration before us for final disposal on 22.11.2010. The petitioner therein challenged the order dated 2.8.2002 passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for brevity, ‘the Tribunal’), rejecting the benefit of resolution dated 30.9.1997 (P- 5 & P-6). Before the Tribunal the said petitioner claimed the benefits of resolution dated 30.09.1997, claiming grant of two increments and their addition in pay fixation. The Tribunal rejected the prayer on the ground that the benefit of one increment claimed by him in pursuance of amendment dated 14.1.1999 could not be granted to him as he was not in service on 1.1.1996. After noticing the amendment dated 14.1.1999 (P-13) made in Rule 18(1)(b) of the 1958 Rules and Model Table 42 with respect to pay scale of ` 3900- 5000 we allowed the said petition by observing as under: “ A perusal of the table shows that the person like the petitioner had attained the stage of Rs. 4700/- in the pay scale of Rs. 3900-5000. In other words, he had already earned six increments to reach the stage of Rs. 4700/-. Therefore, the basic reason for addition of one increment appears to be that an officer/employee who has retired at the initial stage of Rs. 3950/- and after earning one increment would start getting 50% of the minimum of the revised scale without making any distinction between such an employee and the one like the petitioner who have earned six increments and had attained the stage of Rs. 11 C.W.P. No. 1682 of 2003 4700/- in the aforesaid pay scale. Therefore, the above quoted rule recognise to addition of one increment if an employee has travelled to stage of his pay scale while in service by earning three or more than three increments. The petitioner has earned six increments and therefore, becomes entitled to one increment as long as he does not exceed maximum ceiling of Rs. 15,000/-. The interpretation which we have adopted is consistent with the amendment made in Rule 18(1)(b) of the Rules because according to the amendment the maximum of limit of Rs. 15,000 of the pension has been fixed. In addition to one increment an employee would be entitled to pension equivalent to at least 50% the minimum of the pay scale of the revised scale. Therefore, we find that the impugned order passed by the Tribunal is unsustainable. As sequal to the above discussion this writ petition succeeds and the respondent Nos. 3 and 4 are directed to fix the pension of the petitioner by granting him benefit of one increment. In view of the aforesaid disposition the petitioner shall be etitled to the arrears from the date he has filed the Original Application which was done on 1.8.2002. Let the arrears along with refixation of pension be paid within a period of three months from today.” 17. When the facts of the present case are examined in the light of the amendment made in Rule 18(1)(b) of the 1958 Rules and the relevant table applicable to the case of the petitioner and also the facts in Raj Kumar’s case (supra), no doubt is left that the husband of the petitioner is also entitled to similar relief. Accordingly, we find that his pension would be less than ` 12 C.W.P. No. 1682 of 2003 15,000/- per month and it would also not be less than 50% of the minimum of the pay scale if the benefit of one increment is given to him. The aforesaid benefit is contemplated by letter dated 17.12.1998 (p-11) which aims at rationalising the pension of the pensioners, as has been held in Raj Kumar’s case (supra). Therefore, the writ petition deserves to be allowed. The husband of the petitioner is held entitled to one increment in the pre-revised scale of pay in the notional fixation. Let his pension and family pension be refixed w.e.f. 1.1.1996 by adding the benefit aforesaid. The needful shall be done within a period of two months from the date of receipt of a copy of this order. (M.M. KUMAR) JUDGE November 23, 2010 (RITU BAHRI) Pkapoor JUDGE 13