Supreme Court of India

R.Gandhi vs U.O.I. & Anr on 23 August, 1999

Equivalent citations: AIR 2006 BOMBAY 463, AIRONLINE 1999 SC 2, (1999) 3 ESC 1753, 1999 SCC (L&S) 1436, (1999) 3 ANDH WR 76, (1999) 2 CUR LR 838, (1999) 5 SCALE 151, (1999) 4 LAB LN 29, 1999 (8) SCC 106, (2000) 1 UPLBEC 269, (1999) 4 SCT 201, (1999) 83 FAC LR 207, (1999) 7 SUPREME 290, (1999) 6 JT 207, 1999 UJ(SC) 1373, (1999) 6 JT 207 (SC), 1999 ADSC 7 665, 1999 UJ(SC) 2 1373, (2006) 1 ALLMR 479, (2006) 1 BOM CR 743, (2006) 2 LACC 23, 2016 (16) SCC 643

Author:
Syed Shah Mohammed Quadri

Bench:
K.Venkataswami
,
Syed Shah Mohammed Quadri

PETITIONER:
R.GANDHI

Vs.

RESPONDENT:
U.O.I. & ANR.

DATE OF JUDGMENT: 23/08/1999

BENCH:
K.Venkataswami, Syed Shah Mohammed Quadri

JUDGMENT:

SYED SHAH MOHAMMED QUADRI, J.

Leave is granted. This appeal, an off-shoot of the
judgment of this Court in
Common Cause vs. Union of India

[1987 (1) SCC 142], arises from the judgment and order of a
Division Bench of the Madras High Court in Writ Petition
No.12381 of 1996 dated January 22, 1998. The appellant, who
is a Senior Advocate and a member of the Madras High Court
Bar, filed writ petition No.12381 of 1996, a public interest
litigation, in the High Court of Madras challenging
Memorandum No.34/2/86-P&PW(G) dated August 22, 1990 issued
by Department of Pension and Pensioner's Welfare and also
the letter dated September 26, 1990, applying the above said
Memorandum to the Department of Justice, and seeking
declaration that it does not apply to the Judges of the High
Courts and the Supreme Court of India. The substance of the
appellant's case before the High Court was that the Supreme
Court had issued direction that payment of reduced pension
on account of commutation of a part of the pension of a
Government employee should be only for a period of 15 years
"from the date of retirement", but the Union of India issued
impugned Memorandum changing it to "from the date of
commutation of pension".

The Union of India, in its
counter-affidavit, stated that the Supreme Court clarified
the direction given in
Common Cause
(supra) in its
subsequent judgment that the period of 15 years be reckoned
from the date of commutation and not from the date of
retirement. Pursuant to the subsequent judgment of this
Court, Government of India revised its earlier Memorandum
No.34/2/86-P&PW dated March 5, 1987 and brought into force
the impugned Memorandum. A Division Bench of the Madras
High Court, taking note of the various judgments of this
Court, dismissed the writ petition by order dated January
22, 1998. It is against that judgment, this appeal is
preferred. Mr.R. Venkataraman, learned senior counsel for
the appellant, strenuously contended that once the
Government of India accepted in principle that the commuted
pension would be recovered for a period of 15 years from the
date of retirement and the same had culminated into a
direction of this Court, they could not have unilaterally
changed the same to reckon the period of 15 years from the
date of commutation of pension. The learned counsel has
submitted that under the Pension Rules, a pensioner can
commute a part of his pension only within one year of the
date of retirement, therefore, the stand of the Government
that those who applied for and got their pension commuted
just on the verge of the completion of 15 years would be
able to claim their full pension after a few months of
deduction was without any basis. Mr. A.S. Nambiar,
learned senior counsel appearing for the respondents, has
argued that the period of 15 years is fixed on the basis
that the commuted pension would normally be recovered within
the said period; when the commutation of pension and the
date of retirement synchronize, no difficulty would arise
but if the pension is commuted long after the date of
retirement, the period of 15 years will be cut short when
counted from the date of retirement and in the result the
pensioners will get an undue and unintended benefit of the
order of the Supreme Court.

In the case of
Common Cause

(supra), it was represented before this Court in a Writ
Petition under
Article 32
of the Constitution that on
commutation of pension the amount paid to the pensioner in
lump sum by the Government would be recovered from his
pension within a period of 12 years, there was, therefore,
no justification for the Government to pay reduced pension
for the rest of the life of the pensioner. This Court
desired that the Government might give a new look to the
application of Central Civil Service (Commutation of
Pension) Rules, 1981. The Government took decision in the
matter and communicated the same through the learned
Attorney General, which is in the following terms :

"(i) Recovery from pension payable every month towards
commuted value of pension will stop on the completion of 15
years from the date of retirement on superannuation or on
the pensioner completing the age of 70 years, whichever is
later.

(ii) The formulation will apply to all civilian
pensioners in whose case the age of retirement on
superannuation is 58 years and the personnel of Armed Forces
in whose case the retirement age varies in accordance with
the colour service prescribed for the rank (attaining the
age of 37/38 years or more).

(iii) Government have taken this decision as an act of
goodwill to pensioners and to extend to them some measure of
relief in the evening of their lives. It is sincerely
believed that there will be no further demand on this issue
and that the pensioners will accept the decision of the
Government without dissent or reservation.

(iv) The decision will take effect prospectively (from
April 1, 1986)."

In hoc the first point, this Court considered it
unnecessary to refer to the age of commuting pensioner for
restoration of full pension to him but on taking note of the
facts that the lump sum amount would fetch benefit like
interest and there is also an element of risk factor,
directed by its judgment dated December 9, 1986 that "on the
expiry of 15 years from the period of retirement" full
pension should be restored.
In terms of
the said judgment
,
the Government issued Memorandum dated March 5, 1987.

In
Welfare Association of Absorbed Central Government Employees
in Public Enterprises vs. Union of India & Ors. [1991 (2)
SCC 265], the question canvassed before this Court was
whether Central Government employees, who had taken benefit
of the judgment in
Common Cause
(supra) and subsequently got
absorbed in Public Enterprises, were entitled to the benefit
of that judgment again on retirement from public
enterprises. While negativing their claim, it was observed,
"this court for the reasons indicated in the judgment came
to hold that on expiry of 15 years from the date of
commutation the entire pension revived."

From this
observation it can be noticed that the judgment in
Common
Cause
(supra) was neither modified nor clarified.

What all
can be inferred is that this Court in Welfare Association's
case (supra) understood the words "on the expiry of 15 years
from the period of retirement" in
Common Cause
(supra) as
"15 years from the date of commutation....".
The judgment
in Welfare Association case (supra) was rendered on April
12, 1990. It is only pursuant to that judgment, the counter
affidavit recites, the Government revised its earlier Office
Memorandum dated March 5, 1987 and brought into force the
impugned Office Memorandum dated August 22, 1990.
In
Bharat
Petroleum Corporation Ltd. Ex-Employees Association & Ors.
vs Chairman & Managing Director Bharat Petroleum Corporation
Ltd., Bombay & Ors.
[1993 (3) Scale 424], this Court
extended the benefit of the judgment in
Common Cause
(supra)
to the clerical employees of Bharat Petroleum. There also
the words "period of 15 years from the period of retirement"

were understood as "15 years from the date of commutation".

In Welfare Association of Absorbed Central Government
Employees in
Public Enterprises & Ors. vs. Union of India
& Anr.
[AIR 1996 SC 1201], the relief sought by the
pensioners in their petition under
Article 32
of the
Constitution was : restoration of 1/3rd portion of the
fully commuted pension as per the decision of this Court in

Common Cause
(supra). A three-Judge Bench, of which one of
us (Venkataswami,J.) was a member, reiterated the principles
applied in the aforementioned cases. Indeed, the date from
which 15 years pension was to be reckoned was not in issue
there.

This Court strikes at arbitrary action of the State
and accordingly it did in
Common Cause
(supra), by
interdicting the arbitrary action of the Government in
paying the reduced pension as a result of commutation of
1/3rd pension for the rest of the life of the pensioners and
issued an equitable direction to restore the full pension
after 15 years "from the period of the retirement" to the
pensioners who had commuted 1/3rd of the pension. The
period of 15 years has been arrived at after taking into
consideration various factors mentioned above. It is
well-settled principle that the words in the judgment of the
Court cannot be interpreted as the words in a statute. By
the said direction this Court never intended to confer any
unfair or undue advantage on the pensioners. It only
ensured fairness in the treatment of pensioners at the hands
of the Government in respect of deduction of pension
consequent upon the commutation of the portion of the
pension.

The decision in
Common Cause
(supra) has been
understood in all subsequent judgments of this Court as 15
years from the date of commutation and we are in respectful
agreement with the same. This neither prejudices the rights
of any of the parties nor confers any undue or unfair
advantage upon any party.

From the above discussion, it
follows that the impugned Memorandum does not incorporate
any condition contrary to the judgment of this Court in

Common Cause
(supra). The High Court was, therefore, right
in dismissing the writ petition. We find no illegality in
the order of the High Court. The appeal fails and it is
accordingly dismissed. No costs.