THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE SECOND DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE G.CHANDRAIAH WRIT PETITION No : 5182 of 2001 Between: A.Sri Rama Murthy S/o. Satyanarayana Murthy R/o. Mehidpatnam, Hyderabad. ..... PETITIONER AND 1 Acharya N.G.Ranga Agrilcultural University, Rep.by its Registrar Rajendranagar, Hyderabad-30. 2 The Registrar, Acharya N.G.Ranga Agrilcultural University, Rajendranagar, Hyderabad-30. 3 The Govt. of A.P. Rep.by its Secretary Finance and Planning Wing, Hyderabad. .....RESPONDENT(S) 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, order or direction particularly one in the nature of Writ of Mandamus declaring the action of the respondents in not granting the petitioner the enhanced retirement gratuity and commutation of pension in terms of GO Ms. No.157 and GO Ms. No.158 dt: 16/9/99 issued by the 3rd Respondent as totally illegal and without jurisdiction and violative of articles 14,16 and 300-A of the Constitution of India and consequently direct the respondents to grant the enhanced retirement gratuity of Rs. 2,50,000/- and commutation of pension to 40% w.e.f. 1/4/99 with all consequential benefits. Counsel for the Petitioner:MR.S.LAKSHMA REDDY Counsel for the Respondent No.: K.SURESH REDDY (SC FOR ANGRAU) The Court made the following : THE HON'BLE MR JUSTICE G.CHANDRAIAH WRIT PETITION No : 5182 of 2001 ORDER: Heard learned counsel for the petitioner, learned Standing counsel appearing for the respond ents 1 and 2 and learned Assistant Government Pleader appearing for the 3rd respondent. The case of the petitioner is that he was appointed in Andhra University as Assistant Lecturer on 27.11.1963. Thereafter, he was promoted as Assistant Professor, Department of Dairy Science, Veterinary College, Tirupathi, A.P.Agriculture University on 5.9.1967. Again on 17.10.1974, he was further promoted as Associate Professor and then, on 18.11.1984 as Senior Scientist (Professor Cadre), which was later re-designated as Principal Scientist and retired as Principal Scientist on 31.3.1999 on attaining the age of superannuation. It is his case that at the time of retirement, the petitioner’s last pay was Rs.29,019/- against the basic pay of Rs.19,550/-. After his retirement at the age of 60 years, the Government has issued G.O.Ms.Nos.157 and 158 dated 16.9.1999 accepting the recommendations of Pay Revision Commission for enhancement of commutation of pension from 1/3rd to 40% and further enhanced the maximum limit of retirement gratuity from Rs.1,75,000/- to Rs.2,50,000/-. The said Government orders have come into force w.e.f 1.4.1999 and applied to all the Government servants, who retired or whose death takes place on or after that date. Since the petitioner retired on attaining the age of superannuation on 31.3.1999 and the Government Orders have come into force w.e.f 1.4.1999, he represented the 2nd respondent requesting him to sanction the enhanced maximum gratuity of Rs.2,50,000/- and commutation limit of 40%. Since the orders issued by the Government will be applicable to him and he made that representation on 10.1.2001. It is his contention that in the cases where the Government orders have come into with effect from the first of the month and an employee is retired on or after 31st of the preceding month, it must be treated to the effect that the employee is retired from 01.4.1999 for all purposes. Therefore, he is entitled for the benefit of enhanced pension of Rs.2,50,000/- instead of Rs.1,75,000/-. On behalf of the respondents 1 and 2, a counter affidavit has been filed stating that the 3rd respondent- Government has issued G.O.Ms.Nos.157 and 158 dated 16.9.1999 enhancing the maximum limit of Retirement Gratuity from Rs.1,75,000/- to Rs.2,50,000/- and enhanced the Commutation of Pension from 1/3rd to 40% of pension, respectively, based on the recommendations of the Pay Revision Commission. The said G.Os were adapted in the University vide Memo No.38333/SC/99, dated 5.11.1999, after the approval by the Board of Management of the University. In the said orders, it was clearly mentioned that the orders will come into force from 1.4.1999 and shall apply to all the Government servants, who retired or whose death has taken place on or after that date. In view of the fact that the petitioner retired from service on 31.3.1999 itself, the said Government Orders are not applicable to him. Therefore, the petitioner is not entitled for the benefit sought for in his representation. Similarly, the 3rd respondent also filed a counter stating that for the purpose of implementing the G.O.Ms.Nos.157 and 158 dated 16.9.1999, the cut of date is fixed as 1.4.1999 for implementation of the said G.Os and the G.Os would be applicable only to those employees, who retired from service on or after 1.4.1999 and not to the petitioner, who retired from service on 31.3.1999. Therefore, the petitioner is not entitled for the relief sought for in the writ petition. The learned counsel appearing for the petitioner submitted that the petitioner is working as a Principal Scientist and retired as Principal Scientist on 31.3.1999. Since the Government issued two G.Os namely; G.O.Ms.Nos.157 and 158, dated 16.9.1999, enhancing the maximum retirement gratuity from Rs.1,75,000/- to Rs.2,50,000/- and enhanced the commutation of pension from 1/3rd to 40% respectively based on the recommendations of the Pay Revision Commission, and the said G.Os have been adapted by the University, which G.Os have come into effect from 1.4.1999, the petitioner is deemed to be in service as on 31.3.1999 and the retirement would come into w.e.f 1.4.1999 and the G.Os have also came into effect from 1.4.1999, the petitioner is entitled for the benefits conferred under the said G.Os. In support of his contention, the learned counsel for the petitioner relies upon the decision reported in S.Banerjee v. Union of India and others[1] and also in Principal Accountant General, A.P., Hyderabad and another v. C.Subba Rao[2]. In response to this contention, the learned Standing Counsel appearing for the respondent Nos.1 and 2 and also learned Assistant Government Pleader for Finance and Planning reiterated the arguments made in counter affidavit. There is no dispute with regard to the factum of the petitioner retiring as Principal Scientists from the 1st respondent University on 31.3.1999 and that the respondent University is following the Government Orders with regard to the sanction of pensionary benefits. The Government issued G.O.Ms.No.156, Finance and Planning (F.W.Pension.I) Department, dated 16.9.1999 with regard to the sanction of consolidated pension to the pensioners retired in the pre- revised scales of pay, 1999 and enhancement of Minimum Pension. Similarly, the Government also issued G.O.Ms.No.157, Finance and Planning (F.W.Pension.I), dated 16.9.1999 enhancing the maximum limit of Retirement Gratuity from Rs.1,75,000- to Rs.2,50,000/-. These G.Os came into force w.e.f 1.4.1999. While considering the representation of the petitioner for extending the benefits under G.O No.157, the 1st respondent issued a memo No.15256/VS(A1)/2000, dated 12.2.2001 communicating to the petitioner. The judgment portion is extracted as under: “With reference to the letter dated 10.1.2001, Dr.A.Srirama Murthy, Principal Scientist, Retired on 31.3.1999, is informed that the University is following the A.P.Revised Pension Rules 1980 of the Government of A.P as amended from time to time. The enhancement of Retirement Gratuity to the maximum extent of Rs.2.50 lakhs and Commutation of Pension to the extent of 40% have come into force with effect from 1.4.1999 only. These orders will not be applicable in his case, since he retired from service on 31.3.1999 AN.” The learned counsel for the petitioner would submit that the University is following the A.P Revised Pension Rules of 1980 and the G.Os issued by the Government would be applicable to the University, and hence it ought to have granted the benefits under the G.Os to the petitioner, who retired from service on 31.3.1999, but the 1st respondent University rejected the claim of the petitioner under the impugned communication, without application of mind. At this juncture, it is appropriate to note the relevant examples in the decision of the Apex Court. In S.Banerjee v. Union of India and others (Supra 1), at para No.6, as under: “ Under paragraph 17.3, the benefits recommended will be available to employees retiring during the period, January 1, 1986 to September 30, 1986. So the employees retiring on January 1, 1986 will be entitled to the benefit under paragraph 17.3. The question that arives for our consideration is whether the petitioner has retired on January 1, 1986. We have already extracted the order of this Court dated December 6, 1985 whereby the petitioner was permitted to retire voluntarily from the service of the Registry of the Supreme Court with effect from the forenoon of January 1, 1986. It is true that in view of the proviso to rule 5(2) of the Rules, the petitioner will not be entitled to any salary for the day on which he actually retired. But, in our opinion. that has no bearing on the question as to the date of retirement. Can be said that the petitioner retired on December 31, 1985? The answer must be in the negative. Indeed, Mr. Anil Dev Singh, learned Counsel appearing on behalf of the respondents, frankly conceded that the petitioner could not be said to have retired on December 31, 1985. It is also not the case of the respondents that the petitioner had retired from the service of this Court on December 31, 1985. Then it must be held that the petitioner had retired with effect from January 1, 1986 and that is also tile order of this Court dated December 6, 1985. It may be that the petitioner had retired with effect from the forenoon of January 1, 1986 as per the said order of this Court, that is to say as soon as January 1, 1986 had commenced the petitioner retired. But, nevertheless, it has to be said that the petitioner had retired on January 1, 1986 and not on December 31, 1985. In the circumstances, the petitioner comes within the purview of paragraph 17.3 of the recommendations of the Pay Commission. In the above case, the petitioner therein who was an Additional Registrar of the Supreme Court, whose normal date of retirement was on 31.3.1987, sought for Voluntary Retirement from the service and an order was passed permitting him to retire w.e.f 1.1.1986 FN and he claimed the benefit of the recommendations of the Pay Commission, which came into force from the said date. His claim was allowed on the ground that he was not entitled to the salary from 1.1.1986. The Full Bench of this Court in the decision reported in Principal Accountant General, A.P., Hyderabad and another v. C.Subba Rao (2 Supra) held as under at Paragraph No.55: “This question would arise only in Writ Petition No.22042 of 2003 as the respondent therein also claimed DA installments at 49%. As held by us supra, a Government servant who would be retiring on the last day of the month would cease to be Government servant by midnight of that day and he would acquire status of pensioner and therefore he would be entitled for all the benefits given to a pensioner with effect from first day of the succeeding month. In Banerjee case (supra), the Supreme Court laid down that as soon as first day of the succeeding month commenced, petitioner retired and gave the benefit of enhanced DA. The same view has been consistently followed in subsequent decisions as well. To that extent, it must be held that the learned Tribunal has taken correct view.” Another Division Bench of this Court in W.P.No.17900 of 2005 dated 8.2.2006 in the case of Union of India represented by its Secretary, Ministry of Food & Agriculture, New Delhi and others vs. P.S.R.Kumar Sinha and another following the dictum laid down in Banerji’s case and also following the observations made by the Full Bench of this Court (2 Supra) held that the date of retirement of respondent there in would be 1.1.1996 but not 31.12.1995 and they are entitled for revised scale. The relevant contention and observation of the Division Bench are extracted as under: “2:00 RESPONDENTS 2:1 The Two Respondents In the writ are the retired senior scientists. 2:2 They worked in the Central Government before retirement. 3:00 FACTS 3:01 The service and the retirement of the Respondents with the Petitioners is an admitted fact. 3:02 They retired with effect from 31.12.1995 (AN) on attaining the age of superannuation. 3:03 Thereafter, the respondents have submitted the proposals for fixation of pension requesting that their pension may be fixed by calculating their basic pay as Rs.14,940/-. It is on the revised scale. 3:04 Since the pensionary benefits are not released they approached the Central Administrative Tribunal at Hyderabad through O.A.No.384 of 2001 for a direction to the petitioner to release the benefits with interest at the rate of 12% per annum. Order all the pensioners are entitled to the benefit of minimum pay in the revised scale of pay with effect from 1..1.1996, and as the respondents retired from service with effect from 31.12.1995, their pensionary benefits are to be fixed on the basic pay of Rs.14,940/- the revised basic pay. The Tribunal also relied on the judgment of the Hon’ble Supreme Court of India reported as S.Banergee v. Union of India reported in AIR 1990 SC 285 and finally held that the date of retirement of respondents would be 1.1.1996 but not 31.12.1995.” From the material on record, it could be seen that without considering the specific submissions made by the petitioner in his representation claiming for the pensionary and other benefits as per the G.Os, the respondent simply rejected the claim of the petitioner under the impugned memo stating that the G.Os containing the pensionery benefits and gratuity have come into force w.e.f 1.4.1999 whereas, the petitioner retired from service on 31.1.1999, therefore, he is not entitled for the benefit. Such rejection, in my view is without application of mind. The analogy of the case relied on by the learned counsel appearing for the petitioner stated supra, would make it clear that the petitioner, who retired from service on one day prior to the relevant G.Os coming into existence, would be entitled for the benefit contemplated under the said G.Os. Therefore, the petitioner is entitled for the benefit claimed by him. Under these circumstances, I am of the view that the impugned communication issued by the 1st respondent is liable to be set aside and accordingly, the same is set aside on the ground that it is passed without application of mind and without reasoning. The respondents 1 and 2 are directed to consider the case of the petitioner, afresh with regard to the claim of the petitioner, claiming the enhanced retiremental/pensionary benefits, and pass appropriate orders, within a period of two weeks from the date of receipt of the copy of this order. The Writ Petition is disposed of. No costs. _____________________ Justice G. Chandraiah Date:2.09.2008 mrb [1] AIR 1990 SUPREME COURT 285 [2] 2005 (2) ALD 1 (FB)