*THE HONOURABLE SRI JUSTICE V.V.S.RAO +WRIT PETITION Nos.3502 of 2000 and 4990 of 2003 % 19-12-2008 # M.Rama Krishna, S/o.Late M.Seshagiri Rao and another ...Petitioners Vs. $ The Government of Andhra Pradesh, rep.by its Secretary, Law (LA&JSC-F) Department, Secretariat, Hyderaba and others. ...Respondents ! COUNSEL FOR PETITIONER: Mr.K.SOMA KONDA REDDY (WPNo.3502 of 2000) Mr.S.Darakanath (WP No.4490 of 2003) ^ COUNSEL FOR RESPONDENTS: G.P. FOR GENERAL ADMINISTRATION (IN TWI W.P.s) <GIST >HEAD NOTE: 1. (1969) 1 SCC 300 : AIR 1971 SC 846 2. (1971) 2 SCC 330 : AIR 1971 SC 1409 3. (1983) 1 SCC 305 : AIR 1983 SC 130 4. W.P.No.21930 of 1998, dated 05.7.2000 5. W.P.No.6180 of 1997, dated 21.4.1997. 6. JT 1995 (8) 357 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE NINETEENTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO and THE HON'BLE MR JUSTICE G.CHANDRAIAH WRIT PETITION Nos.3502 of 2000 and 4990 of 2003 Between: ..... PETITIONER AND .....RESPONDENT 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 Counsel for the Petitioner:MR.K.SOMA KONDA REDDY Counsel for the Respondent No.: GP FOR SERVICES II WRIT PETITION No.4990 of 2003 Between: Menakuru Mohan Rama Reddy, Foremer Upa-Lokayukta, Flat No.12, Anjana Apartments, Tekkemitta, Nellore - 524 003 ..... PETITIONER AND 1 The Government of Andhra Pradesh, Rep. by its Chief Secretary to Government, Andhra Pradesh Secretariat, Hyderabad. 2 The Secretary ot Government General Administration Dept. Andhra Pradesh Secretariat, Hyderabad. 3 The Accountant General, Hyderabad, Andhra Pradesh. 4 The Pension Payment Officer, M.J.Road, Hyderabad, Andhra Pradesh. .....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 a Writ of Mandamus or any other appropriate Writ or Order or direction directing the Respondents to sanction and release the dearness relief on the pension sanctioned to me for my service Upa-lokayukta in G.O.Ms.No.28 GAD(SC-E) Department dt.22.1.1997 as subsequently modified in G.O.Ms.No.444 GAO (SC.E) Department, dt.28.12.2002 along with interest at 18% per annum from the date of eligibility. Counsel for the Petitioner: MR.S.DWARAKANATH Counsel for the Respondent No.: GP FOR GENERAL ADMINISTRATION The Court made the following : THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION Nos.3502 of 2000 and 4990 OF 2003 COMMON ORDER: (Per Hon’ble VVSRJ) An interesting question falls for consideration in these two writ petitions. The question is regarding right of District Judge Grade I (DJ), who is appointed as Upa-Lokayukta under Andhra Pradesh Lokayukta and Upa-Lokayukta Act 1983 (Lokayukta Act, for brevity), to claim Dearness Allowance or Dearness Relief (DA/DR) on the pension payable to Upa-Lokayukta after remitting office after completion of term of five years. Petitioners in these two cases, who held office of Upa- Lokayukta contend that a District Judge who is appointed as Upa- Lokayukta is entitled to claim DR on pension drawn as DJ as well as Upa-Lokayukta. The Government admits entitlement of petitioners of DA on pension payable as District Judges but oppose payment of DA on pension payable as Upa-Lokayukta. Whether they are entitled to two pensions and two DAs or two pensions and one DA is contentious issue in these matters and hence this common order. The fact of the matter is not in dispute. Petitioner in W.P.No.3502 of 2000 (hereafter, first petitioner) and petitioner in W.P.No.4990 of 2003 (hereafter, second petitioner) were members of Andhra Pradesh State Higher Judicial Service. Even before they were superannuated as DJs, they were appointed as Upa-Lokayukta under Section 3(1)(c) of Lokayukta Act. While in office as Upa-Lokayukta, they were formally retired as DJs and pension was fixed, which includes pension and DA or Dearness Relief in the case of second petitioner. But in the case of first petitioner, he was not sanctioned DA on the pension, on the ground that he was employed as Upa-Lokayukta. Therefore, first petitioner while holding office as Upa-Lokayukta filed W.P.No.3502 of 2000 seeking writ of Mandamus directing respondents to pay DA on pension as per Rules. In the case of second petitioner he was in fact sanctioned pension as District Judge including DA but after he laid down office of Upa-Lokayukta, while fixing pension for his service as Upa-Lokayukta, he was denied DA on the ground that he is already in receipt of DA on the pension drawn as District Judge. Therefore he sought a writ of Mandamus seeking DA on pension as Upa-Lokayukta. At the time of hearing, it is admitted by all that both the petitioners are drawing pension for their services as District Judge. They are also drawing pension for their service as Upa-Lokayukta as per Lokayukta Act and Andhra Pradesh Lokayukta, Upa-Lokayukta (Condition of Service) Rules 1987 (hereafter, Lokayukta Rules). The contentious issue is this: When both former Upa-Lokayuktas are drawing pension and DA admissible on pension drawn by them for their services as District Judge, are they entitled again for DA on pension being paid to them for their services as Upa-Lokayukta? Learned Senior Counsel, Sri K.Subrahmanya Reddy, for petitioners and learned Government Pleader for General Administration Department (GAD) made their submissions and also placed reliance on case-law. A reference to these, are made at appropriate places. Pension is a condition of public service. In addition to incremental/ progressive scale of pay attached, to a post, holder of post, after retirement is entitled to superannuation pension[1]. In determining pay for a post under the State, many considerations weigh with the State. Pension that would be payable to a public servant, after retirement, is also an important factor. So to say while fixing pay attached to a post, part of money is (it is assumed) withheld to be paid lifelong to holder of post even after superannuation as pension. That is the reason why service law does not recognize pension as a bounty paid as a charity. Pension is earned by a holder of post. Pension is periodic money payments to a retiree for rest of his natural life. The average emoluments drawn during the last period of tenure determine quantum payable to holder of post subject to certain conditionalities. Pension is in recognition of service of a person to give benefit in old age as a social security measure. It need not be explicitly contributory in nature[2] and impliedly it is assumed that while in active service, holder of post contributes for his pension paid after he is superannuated. (see State of Gujarat v R.B.Chandrachud[3], Deokinandan Prasad v State of Bihar[4] and D.S.Nakara v Union of India[5]). Thus it may be taken as well settled that pension is as of right paid to retiree as per the Rules. In State of Andhra Pradesh, to begin with, Pension Rules in Civil Service Regulations of Madras Presidency, Hyderabad Civil Service Rules, Revised Pension Rules 1951 of Hyderabad State, regulated payment of pension to retired government servants. In 1961, Andhra Pradesh Liberalised Pension Rules, 1961, were made. These were applied to all employees. All these Rules were consolidated in 1980 known as Andhra Pradesh (Revised) Pension Rules, 1980 (Revised Pension Rules, for brevity). These deal with different kinds of pensions including superannuation pension (Rule 33). Every kind of pension under Revised Rules is subject to future good conduct. Though as per Rule 7 of Andhra Pradesh State Higher Judicial Service Rules 1964, District Judges are governed by All India Service (Death-cum- Retirement Benefits) Rules 1958 (Central Rules, for brevity), Revised Pension Rules were also made applicable to them. In addition to actual pension payable as per the Rules, every pensioner was given DA/DR on the basis of rising cost of living, on par with persons holding post probably to nullify affect of rising cost of living. Payment of DA/DR is governed by Executive Orders issued by Government of Andhra Pradesh from time to time. The purpose of granting such allowance/relief is to see that capital value of sanctioned pension remains almost constant without causing any hardship to pensioner. Indeed DR is payable to all types of pensioners irrespective of specific periodical claim for such relief. That payment of pension to retired persons is an important duty of State is recognized by Supreme Court in D.S.Nakara (supra), wherein it was held that payment of pension is a device to achieve constitutional preambular specification of ensuring social and economic justice. There cannot be any doubt that Revised Pension Rules shall apply to members of State Higher Judicial Service, namely, District Judges Grade-I and Grade-II. Rule 2 thereof makes this clear. There is no controversy or dispute that both petitioners were sanctioned superannuation pension as well as family pension by appropriate authority in accordance with Revised Pension Rules. There is also no controversy or dispute that petitioners are also drawing DA/DR on pension payable to them for their past services as District Judges. There is also no controversy that the Revised Pension Rules nowhere prohibit payment of DA on pension paid to a retired District Judge, who after such retirement was appointed to an office and completed tenure. As presently seen even Revised Pension Rules in certain circumstances and instances, permit counting of a service for the purpose of determining pension payable after superannuation. Before taking up this aspect, position of Upa-Lokayukta under Lokayukta Act is to be adverted to. Upa-Lokayukta is appointed under Section 3(1)(c) of Lokayukta Act from among District Judges Grade-I out of a panel of five names forwarded by Chief Justice of High Court. Section 4 injuncts Upa- Lokayukta from being a member of a legislative house, or from connected with any political party or from being carrying or practising any profession. Section 5 provides that every Lokayukta shall hold office for a term of five years from the date on which he enters upon his office. Subsections (3), (4) and (5) of Section 5 of Lokayukta Act are relevant. They read as under. 5. Term of office and other conditions of service of Lokayukta and Upa-Lokayukta: - (3) On ceasing to hold office, the Lokayukta or Upa-Lokayukta shall be ineligible for re-appointment to that office and also for further employment for a period of five years either under the Government or any such local authority, Corporation, Government Company or Society as is referred to in sub- clause (v) of clause (k) of Section 2. (4) The salary payable to the Lokayukta or Upa-Lokayukta in respect of time spent on actual service shall respectively be the same as that of the Chief Justice or Judge of the High Court of Andhra Pradesh. (5) The allowances and pension, payable to and other conditions of service of the Lokayukta or Upa-Lokayukta shall respectively be the same as those of the Chief Justice or a Judge of the High Court of Andhra Pradesh: Provided that the allowances and pension payable to, and other conditions of service of, the Lokayukta or Upa-Lokayukta shall not be varied to his disadvantage after his appointment. (emphasis supplied) The above provisions deal with conditions of service like salary, pension and post retiral employment. Upa-Lokayukta shall be entitled to allowances and pension as that of a Judge of High Court of Andhra Pradesh. The proviso to subsection (5) to Section 5 of Lokayukta Act prohibits varying of allowances and pension payable to Upa-Lokayukta after his appointment. Section 20 of Lokayukta Act is Rule-making power of the Government. Section 20(2)(b) of Lokayukta Act empowers Government to make rules providing for allowances and pension payable and other conditions of service of Lokayukta and Upa- Lokayukta. Accordingly these conditions are provided by delegated legislature by promulgation of Lokayukta Rules. Rules 2(1)(i), 6, 12 and 15 of Lokayukta Rules, deal with pension and allowances. It is necessary to refer to them here. 2. Definitions:- (1) In these rules, unless the context otherwise requires,– (i) ‘pension’ means pension of any kind payable to the Lokayukta or the Upa-Lokayukta and includes any gratuity or other sum or sums so payable by way death or retirement benefits; 6. Pension:- (1) The Lokayukta shall be paid pension of Rs.15,000/- per annum for each completed year of service as Lokayukta. (2) The Upa-Lokayukta shall be paid pension of Rs.13,000/- (Rupees thirteen thousand per annum for each completed year of service as Upa-Lokayukta. (3) The Lokayukta and Upa-Lokayukta shall be entitled to pension as stated above in addition to the pension to which they may be entitled in respect of any previous service rendered by them under the Union or the State: Provided that the Lokayukta and the Upa-Lokayukta shall not receive any pension if he/she has been removed from that office under Section 6 of the Act. (4) The rules for the time being applicable to the Chief Justice or the Judges of the High Court or Andhra Pradesh in regard to the commutation of pension shall apply mutatis mutandis to the Lokayukta and the Upa-Lokayukta respectively. (5) The Governor may, for special reasons, direct that any period not exceeding three months shall be added to the actual service of the Lokayukta or the Upa-Lokayukta, as the case may be, for the purpose of fixing the pension payable to him/her. 12. Dearness Allowance etc.:- The Dearness Allowance, Sumptuary allowance, City Compensatory Allowance and other allowances payable to the Lokayukta or the Upa-Lokayukta, shall be the same as those payable to the Chief Justice or a Judge of the High Court of Andhra Pradesh respectively. 15. Gratuity and Family Pension:- The Lokayukta and Upa- Lokayukta are entitled to gratuity and family pension as applicable to the Chief Justice and Judges of the High Court of Andhra Pradesh respectively. A perusal of the provisions of Lokayukta Act and Lokayukta Rules referred to hereinabove would show that insofar as conditions of service of Lokayukta and Upa-Lokayukta are concerned especially allowance and pension payable to them, Revised Pension Rules have no application though it is always open to the State to make those Rules applicable to the offices of Lokayukta and Upa-Lokayukta. Be that as it is as defined in Rule 2(1)(i) of Lokayukta Rules, pension means pension of any kind payable to Lokayukta or Upa-Lokayukta and includes gratuity or other sum or sums payable by way of death or retirement benefits. Rule 6 of Lokayukta Rules, as amended by G.O.Ms.No.310, dated 30.8.2000 (with effect from 01.01.1996) reads as under. 6. Pension:- (1) The Lokayukta shall be paid pension of Rs.15,000/- per annum for each completed year of service as Lokayukta. (2) The Upa-Lokayukta shall be paid pension of Rs.13,000/- (Rupees thirteen thousand per annum for each completed year of service as Upa-Lokayukta. (3) The Lokayukta and Upa-Lokayukta shall be entitled to pension as stated above in addition to the pension to which they may be entitled in respect of any previous service rendered by them under the Union or the State: Provided that the Lokayukta and the Upa-Lokayukta shall not receive any pension if he/she has been removed from that office under Section 6 of the Act. (4) The rules for the time being applicable to the Chief Justice or the Judges of the High Court or Andhra Pradesh in regard to the commutation of pension shall apply mutatis mutandis to the Lokayukta and the Upa-Lokayukta respectively. (5) The Governor may, for special reasons, direct that any period not exceeding three months shall be added to the actual service of the Lokayukta or the Upa-Lokayukta, as the case may be, for the purpose of fixing the pension payable to him/her. (emphasis supplied) In addition to prescribing annual pension of Lokayukta and Upa- Lokayukta, the Rule also lays down that such pension is in addition to the pension to which office holders may be entitled to in respect of any previous service rendered by them under Union or State. Further, the Rules applicable to Chief Justice or Judges of High Court of Andhra Pradesh in regard to commutation of pension are also applicable to Lokayukta and Upa-Lokayukta. As per Section 5(4) of Lokayukta Act, offices of Lokayukta and Upa-Lokayukta are equated to offices of Chief Judge and Judge of High Court of Andhra Pradesh respectively, for payment of salary. This means that Upa-Lokayukta will draw the same salary as is payable to a Judge of High Court of Andhra Pradesh. Even in the matter of payment of pensionary allowances there cannot be any discrimination. When a retired High Court Judge is paid DA/DR on the pension sanctioned for the service as High Court Judge, even Lokayukta or Upa-Lokayukta aproprio vigore must be held entitled for all allowances including DA/DR payable for the service as Lokayukta/Upa- Lokayukta. The offices of Lokayukta and Upa-Lokayukta created under the statute also provide very comprehensively for all matters, “for appointment and functions”. A person appointed to office of Upa- Lokayukta under Rule 6(3) of Lokayukta Rules is entitled for two pensions, one in respect of his previous service under the State, in this case as District Judge Grade-I, and another pension for service as Upa- Lokayukta. When statutory rules made under the statute, which form part of main statute, provide for two pensions, unless it is specifically indicated, it cannot be assumed or surmised that Act and Rules intended to deprive Upa-Lokayukta of DA/DR on the pension payable to him. The legislature and Rule-making authority are assumed to be aware of legal position when they acted in their sphere. That what is prescribed by a statute cannot be supplanted by an executive order is axiomatic. Therefore, by an executive order, right of Upa-Lokayukta for claiming/drawing DA/DR cannot be curtailed. In that view of the matter any reliance on Rule 12 of Lokayukta Rules is misconceived. Rule 12 only provides that while in office Lokayukta or Upa-Lokayukta shall be entitled to DA, sumptuary allowance, City Compensatory Allowance and other allowances payable to Chief Justice or a Judge of High Court of Andhra Pradesh. Rule 12 by itself cannot dilute the effect of Section 5(4) of Lokayukta Act (salary of Lokayukta/Upa-Lokayukta) and Rule 6(3) of Lokayukta Rules (pension to Lokayukta/Upa-Lokayukta). In the counter affidavit filed in justification of denial of DA/DR, in W.P.No.4990 of 2003, it is stated as under. It is submitted that it is true that the payment of salary and pension of the petitioner are governed by the A.P.Lokayukta and Upa Lokayukta Act and APLA & ULA (Conditions of Service) Rules, 1986 which provide for equating the pay and allowances, pension and other conditions of APLA & ULA with that of Chief Justice and Judge of High Court respectively. The contention of the petitioner is not true since the Dearness Relief cannot be allowed on two service pensions if the service is rendered in different services i.e. Central and State Services as per the orders issued in G.O.Ms.No.350, Fin.&Plg. (FW.Pen.I) Dept. dated 9.8.1976 and as per the clarifications given in Lr.No.39265/440/A2/Pen.I/96, Fin.Dept. dated 22.6.1996. In the instant case, the petitioner cannot be allowed Dearness Relief on both the pensions as both the services rendered by him are from the State Service. Secs.5(4) and 5(5) of the APLA & ULA Act are not relevant to the case as no mention has been made in these Sections with regard to payment of Dearness Relief. It is submitted that as stated above, Secs.5(4) and 5(5) of APLA & ULA Act are not relevant to answer the question with regard to payment of Dearness Relief on pension. The claim with regard to payment of DR in regard to the pension eligible for the service rendered as Dist & Sessions Judge and Judge of High Court, it is submitted that the service rendered as Dist Judge is a State Service and service rendered as Judge of High Court is a Central Service. In the case of the petitioners herein, the services rendered by him as Dist Judge and Upa Lokayukta are both State Services, and therefore, as per G.O.Ms.No.350, Fin. Dept dt.9.8.76, he is not entitled for Dearness Relief on two pension. The argument of Government as above is wholly unsustainable. Even when a person ceases to be member of one service and joins another service, law is very clear that service in previous post can be counted for the purpose of pension. Rules 7, 15, 18 and 19 of Pension Rules reflect instances when a Government servant can or cannot count service for the purpose of pension or claim pension in case of reemployment. It is no doubt true that Rule 7(2) prohibits sanction of separate pension or gratuity for the period of reemployment when a superannuated Government servant after retirement is reemployed. This is however subject to the exception contained in Rule 19, which permits Government servant who is reemployed in a civil post to draw military pension or retain gratuity. In such a case person, who is military servant, is entitled to draw two pensions with all other benefits. Rules 15 and 18 provide for counting of service for the purpose of pension even after transfer from Central service to State service. Conspectus of the Rules referred to herein above would show that grant of two pensions and two separate DAs/DRs is not alien to concept of granting pension and relief to retired employees on their reemployment. Government of India considered question of admissibility of DA/DR to pensioners who are in receipt of two pensions i.e., one from Central Government including military pension and another from State Government. In their O.M.No.13(32)-E.V(A)-/75, dated 21.11.1975, they issued orders clarifying that DA/DR would be admissible on both the pensions. In tune with that office memorandum, State Government issued orders in G.O.Ms.No.350, dated 09.8.1976. The same reads as under. GOVERNMENT OF ANDHRA PRADESH ABSTRACT Pensions–Relief to pensioners in receipt of pension from central Government (including Military pension) and State Government–Applicability to pensioners who are in receipt of such pensions–Orders–Issued. FINANCE & PLG.(FINANCE PEN.I) DEPARTMENT G.O.Ms.No.350 Dated 9th August, 1976 Read the following:- 1. G.O.Ms.No.7, Finance & Plg (Fin.Wing.Pen I) Dept., Dated 11.1.1975 2. Government of India, Ministry of Finance (Department of Expenditure) O.M.No.13(32)-E.V(A)-/75, dt.21.11.1975 3. From the Government of India, Ministry of Finance (Department of Expenditure), New Delhi, O.M.No.F.22(8)EV(A)/75, dated 13.2.1976. 4. From Senior Deputy Accountant-General (Training & Pensions) D.O.Lr.No.PA-III/III/Hyd/240-41/dated17.6.1976. 5. From under Secretary to Government of India, Ministry of Finance, D.O.Lr.No.E.22(8)-EV(A)/75, dated 22.7.1976. O R D E R: In the order first read above, relief to pensioners was sanctioned. In this connection, a question has arisen, whether the relief sanctioned in the G.O. first read above is admissible to the pensioners who are in receipt of two pensions i.e. one from the Central Government (including Military Pension) and another from State Government. 2. The Government of India have issued orders in their O.M. second read above to the effect that in the case of a Central Government pensioner who is in receipt of a pension from a State separately the reliefs in pension will be determined with reference to the amount of pension sanctioned by the Central Government and the Central Government will have no objection if the State Government concerned also allow reliefs in respect of their pensions in accordance with these orders. In these cases, the liability for reliefs in full will be borne by the Central Government in respect of Central Pension and by State Government in respect of State Pension. 3. Government have carefully examined this question and have decided to adopt the Government of India orders in this regard. The following instructions are accordingly issued:- (i) A State Pensioner who is in receipt of pension from the Central Government (including Military pension) may be allowed full relief on State Pension as sanctioned in the order first read above. (ii) The liability arising out of this payment shall be borne by the State and not be allocated to the Central. However, it shall be allocable among different States under the provisions of the States Reorganisation Acts in the same manner as the pension. (iii) These orders shall be deemed to have come into force with effect