Research › Search › Judgment

Rajasthan High Court · body

2002 DIGILAW 1923 (RAJ)

M. K. Bakshy v. Union of India

2002-12-04

PRAKASH TATIA

body2002
JUDGMENT 1. - Heard learned counsel for the parties. 2. Brief facts of the case are that the petitioner who joined service as Airman on 11th March, 1949 and continued till 2nd July, 1965, by this he rendered service for 16 years 114 days as pre-Commissioned employee. The petitioner, thereafter, served as a Squadron leader from 3rd July, 1965 till his date of retirement i.e. 30th April, 1978 rendering 12 years and 302 days service as commissioned Officer. The total service as pre-commissioned employee and as commissioned officer becomes to 29 years and 51 days. As per Rules, the petitioner was entitled for weightage of eight years' service and therefore, his actual period of service comes to 37 years and 51 days at the time of retirement i.e. as on 30th April, 1978. As per rules, the petitioner's pre- commissioned services was to be credited only ⅔ of his actual service, therefore, out of 16 years 114 days of pre-commissioned service of the petitioner 10 years 315 days of service was taken into account along with actual service of 12 years 302 days rendered as commissioned officer added by 8 years as weightage given to the petitioner. By this calculation the petitioner was treated as having completed 31 years 252 days of service. The employee, who renders service for more than 20 years or more is eligible for the purpose of getting benefit of pension under the relevant rules, therefore, on retiring on 30th April, 1978, the petitioner was given benefit of pension as well as gratuity. The petitioner is getting this pensionary benefit from 30th April, 1978 till today. For this, there is no dispute between the parties. 3. According to the petitioner, as per the Fourth Central Pay Commission Report, a policy decision was taken and therein, it is provided that the employees of the respondents, who retired on or after 1st Jan., 1986 will get benefit of full pre-commissioned service but the employees who retired before the 1st Jan., 1986 their services will continue to be counted ⅔ for the purpose of pension, meaning thereby the petitioner who retired before 1st Jan., 1986 his services continued to be counted for the purpose of pension not actually rendered, but ⅔ of the actual service. According to learned counsel for the petitioner, at that time since the petitioner was given benefit of the pension, therefore, he had no grievance of counting of the pre-commissioned service rendered by the petitioner upto the extent of ⅔ only of the actual service rendered but when the Fifth Central Pay Commission recommendations were notified by the Government of India and the sanction of the President was accorded to revision of the pension/ordinary family pension w.e.f. 1st Jan., 1996 in respect of all pre-1986/pre-1996 Armed Forces Pensioners/ordinary family pensioners who were receipts of pensions as provided in the said decision as on 1st Jan., 1996, in the manner indicated in letter dated 27th May, 1998 (Ex.R/2), then denial of counting past ⅓ services of the petitioner became adverse order to the petitioner. The petitioner is feeling aggrieved against the decision taken in the policy decision of Fourth Central Pay Commission Report whereby petitioner's pre-commissioned service to the extent of ⅔ of actual rendered service was only to be counted. According to learned counsel for the petitioner, it was decided in recommendation of the Fifth Central Pay Commission Report to treat alike those who retired on or after 1st Jan., 1986 with the persons, who retired before 1st Jan., 1986 but while doing so no care was taken for removing disparity faced by the employees in counting their past pre-commissioned service, who retired before 1st Jan. 1986 and the service rendered by the employees before 1st Jan., 1986 are still counted for the purpose of pension, ⅔ of the actual service rendered. 4. The respondents submitted reply to the writ petition and placed on record the recommendations of Fourth Central Pay Commission Report as well as recommendations of Fifth Central Pay Commission Report. It appears that due to the objections raised by the respondents, the petitioner moved an application for amendment in the prayers of the writ petition by filing application dated 23rd March, 2002 seeking prayer to the amended writ petition by including a prayer of declaration that the applicability of effective date of counting full pre-commissioned service of personnel retiring on or after 1st Jan., 1986 be declared as ultra-vires and unconstitutional. This Court by order dated 1st April, 2002 ordered that the application for amendment will be considered at the time of final hearing of the writ petition, therefore, application for amendment in the writ petition is also required to be considered. 5. Learned counsel for the respondents vehemently submitted that such type of amendment cannot be permitted because of this amendment, the petitioner is seeking to challenge the decision, which was made effective from 1st Jan., 1986 and the benefit has already been availed by the petitioner and there is gross inordinate delay of about 16 years in filing the application for amendment. 6. According to learned counsel for the petitioner, the writ petition cannot be said to be even delayed because the entire cause of action to the petitioner only when Fifth Central Pay Commission recommendations was accepted by the Government and the President accorded the sanction and because of this reason only the petitioner is feeling aggrieved and got the right to challenge the decision by which the petitioner was denied the benefit of full length of actual service. 7. The petitioner since sought relief in prayer only without making any amendment in the pleadings with respect to the facts or grounds, therefore, it relates to the grant of relief to the petitioner on the basis of existing pleadings only and it will not change the nature of the petition and so far as grant of relief is concerned, the Court is empowered to grant relief and do the justice provided case is made out from the facts and in law without causing prejudice to the other party. The point of delay in filing the writ petition can be an objection raised in defence by the respondent, which can be considered by the Court at the time of hearing of the matter on merits. When the delay is there or not is also subject matter of dispute it will be appropriate to permit amendment in the prayer of the writ petition as prayed by the petitioner and it is ordered that the prayer which has been made by the petitioner in application for amendment be treated as prayer made in the writ petition itself with liberty to respondents to raise their objection on any ground which they may have. 8. The writ petition heard on merit. 9. 8. The writ petition heard on merit. 9. According to learned counsel for the petitioner, the petitioner is falling in the category of pensioners since 1978. The petitioner's only ⅔ of the pre-commissioned service was credited to the petitioner's service account as per provisions for pension. After acceptance of the Fourth Central Pay Commission Report, order dated 30th Oct, 1987 was issued by the Government, making a provision that, full pre-commissioned service of the officer's who retired on or after 1st Jan., 1986 will be counted for pension. Since, even by counting ⅔ of past service of the petitioner, petitioner's total mountable service was more than qualifying service (that is more than 20 years), therefore, at that time by this decision neither petitioner was put to any disadvantageous position nor he could have get benefit of the recommendation of the Fourth Central Pay Commission. According to the petitioner, the fixing of date 1st Jan., 1986 in the Fourth Central Pay Commission Report was arbitrary but since at that time the petitioner was not effected by above recommendations and their implementation, therefore, at that time neither he challenged the decision to fix date 1st Jan. 1986 as cut off date nor he could have challenged it. 10. The grievance of the petitioner is that, the Fifth Central Pay Commission recommended for full 50% pension of basic pay of the rank, if an officer has completed 33 years of the service including weightage, since petitioner's only ⅔ pre-commissioned service was counted only because the petitioner retired prior to 1st Jan., 1986, therefore, his service is falling short to 33 years even when his actual rendered service is of 37 years 15 days. The cut off date fixed as 1st Jan., 1986 in Fourth Central Pay Commission, therefore, is coming in way of the petitioner now in getting the full pensionary benefit, which is available to the officer, who retired after 1st Jan., 1986, but before, even before of date of implementation of Fifth Central Pay Commission Report. 11. The cut off date fixed as 1st Jan., 1986 in Fourth Central Pay Commission, therefore, is coming in way of the petitioner now in getting the full pensionary benefit, which is available to the officer, who retired after 1st Jan., 1986, but before, even before of date of implementation of Fifth Central Pay Commission Report. 11. The learned counsel for the petitioner submits : (1) petitioner is pensioner, (2) benefit of new policy is for the benefit of all pre-1986 retiree, (3) petition is falling in the category of pre-retires 1986, (4) extension of benefit of pension cannot be denied to one set of pensioners while granting to another set of pensioner by fixing date arbitrary and (5) there is no delay in filing present writ petition as after implementation of recommendation of Fifth Central Pay Commission only order to implement recommendation of Fourth Central Pay Commission and its implementation became adverse to the petitioner. 12. Learned counsel for the petitioner relied upon the judgment of Hon'ble Supreme Court delivered in the case of V. Kasturi v. Managing Director, State Bank of India & Anr. reported in 1999 SC 81 . The Hon'ble Apex Court after considering number of earlier decisions given by the Hon'ble Supreme Court, classified the employees in two categories i.e. first is the person, who retired and was eligible for pension at the time of his retirement and he survived till the time of subsequent amendment of relevant pension scheme by which he would become eligible to get enhancement or more become eligible to get more pension as per new formula of computation of pension subsequently brought into force, for this category the Hon'ble Apex Court held that he would be entitled to get the benefit of the amendment in the scheme from the date of such orders as he would be a member of very same class of pensioner when the additional benefit is being confirmed on all of them. 13. 13. The second category of the employees, is the employees, who were at the time of retirement were not eligible for earning pension and stands outside the class of pensioners, if subsequently by amendment of relevant pension rules any beneficial umbrella of pension scheme is extended to cover a new class of pensioner and when such a subsequent scheme comes into force the earstwhile non-pensioner might have survied then only if such extension of pension scheme to earstwhile non-pensioners is expressly made retrospective by the authorities promulgating such scheme, the earstwhile non-pensioner, who has retired prior to advantage of such extended pension scheme can claim benefit of such a new extended pension scheme. If such new scheme is prospective only, old retirees non-pensioners cannot get the benefit of such scheme, even if they survive such new scheme. They will remain outside its sweep. According to learned counsel for the petitioner, the claim of the petitioner is falling in the category, one, as categorized by Hon'ble Apex Court in above V. Kasturi's case. 14. The arguments of learned counsel for the petitioner as presented is quite attractive but if we go in deep such is not the position as projected by the petitioner looking to the facts of the present case. At the cost of repetition, it is relevant to mention here that the petitioner retired on 30th April, 1978 and his ⅔ of pre-commissioned service was required to be counted as per rule existing on that day, when petitioner retired. This continued in the case of the petitioner even after the implementation of recommendation of Fourth Central Pay Commission by order dated 30th Oct., 1987, therefore, the persons who could not complete the qualifying service by counting ⅔ of pre-commissioned service were excluded from the benefit of the pension from before 1978 and the officer retired before 1st Jan., 1986 remained outside the benefit, even after implementation of Fourth Central Pay Commission Recommendations. This position was altered by the implementation of recommendation of the Fourth Central Pay Commission by order dated 30th Oct., 1987. By this change, full actual service rendered by officer as pre-commissioned officer is to be counted but it is applicable to the officers who retired after 1st Jan., 1986. This position was altered by the implementation of recommendation of the Fourth Central Pay Commission by order dated 30th Oct., 1987. By this change, full actual service rendered by officer as pre-commissioned officer is to be counted but it is applicable to the officers who retired after 1st Jan., 1986. Same benefit is not available to the officers who retired prior to 1st Jan., 1986, therefore, the petitioner who is pre-1.1.1986 retiree is deprived from the benefit of counting of full service for the purpose of pension by fixing the date as 1.1.1986 in Fourth Central Pay Commission Report. 15. Now, it is to be seen whether the petitioner can claim any benefit being a pensioner on the date when the Fifth Central Pay Commission Report was accepted and given effect to? It is clear from the facts mentioned above that any of the recommendation of Fifth Central Pay Commission itself has not altered any position so far as counting of pre-commissioned service rendered by the officers is concerned. Earlier credit of ⅔ of pre-commissioned service was changed by the recommendation of the Fourth Central Pay Commission and in recommendation of the Fourth Central Pay Commission cut of date is 1st Jan., 1986 was fixed. The Fifth Central Pay Commission Report have not altered this cut of date; 1st Jan., 1986 in any manner. What has been done in the recommendation of Fifth Central Pay Commission is only that the officers who are completed 33 years of service including the weightage, they are given some benefits. lit may be presumed that when the Fifth Central Pay Commission considered the cases of pre-1.1.1986 retirees, they were fully conscious of the fact that the officers retired before 1st Jan., 1986 were given credit of ⅔ of their past service rendered as pre-commissioned officers and what would be the financial burden on the Government in granting the additional benefit as recommended in the Fifth Central Pay Commission Report and it also can be presumed that the commission was fully conscious that only ⅔ of pre 1.1.1986 retirees service will be counted which they rendered as pre- commissioned officers. The Hon'ble Supreme Court in the case of State of West Bengal v. Monotosh Ray & Anr. reported in 1999(2) SCC 71 : [ 1999(2) SLR 548 (SC)] considered the number of earlier judgments of the Hon'ble Supreme Court on this very point. The Hon'ble Supreme Court in the case of State of West Bengal v. Monotosh Ray & Anr. reported in 1999(2) SCC 71 : [ 1999(2) SLR 548 (SC)] considered the number of earlier judgments of the Hon'ble Supreme Court on this very point. The Hon'ble Supreme Court considered a large number of judgments dealing with the analogous point and also considered the V. Kasturi's case, which was relied upon by learned counsel for the petitioner and following the earlier judgments of the Hon'ble Supreme Court i.e. State of Rajasthan v. Amrit Lal Gandhi reported in 1997(2) SCC 342 : [ 1997(1) SLR 528 (SC)] and judgment delivered in the case of Union of India v. P.N. Menon reported in 1994(4) SCC 68 : [1994(2) SLR 335 (SC)] reiterated that in matters of revising the pensionary benefits and even in respect of revision of scales of pay, a cut of date on some rational or reasonable basis has to be fixed for extending the benefits. Therefore, a cut of date can be fixed on reasonable basis for extending the benefit, but here in this case, nothing has been altered by the Fifth Central Pay Commission Report with respect of counting of the past service rendered by the officer as pre-commissioned officer like petitioner. The petitioner, in the circumstances, cannot take help of the recommendation of Fifth Central Pay Commission implemented w.e.f. 1st Jan., 1996 by issuing appropriate order in the year 1997 to challenge what has been decided in the year 1987 by implementing the recommendation of Fourth Central Pay Commission. There are further more reasons which show that by not counting full service rendered by the petitioner as pre-commissioned officer and as he is pre-1986 retiree, he was denied the benefit of more gratuity amount by fixing cut of date, 1st Jan., 1986, but he accepted it and did not challenge the fixing of cut of date as 1st Jan., 1986, therefore, contention of learned counsel for the petitioner that the petitioner feel aggrieved against the counting of ⅔ of past service rendered as pre-commissioned officer only with the implementation of Fifth Central Pay Commission Report is concerned, is devoid of any force. 16. 16. It will be relevant to refer certain clauses of Fourth Central Pay Commission Report, which clearly reveal that the term 'qualifying service' for the officers have been given in column 5(a), copy of which is at Page No.48 of the paper book in Column 6.1, which is quoted as under: "6.1 OFFICERS (a) The minimum period of qualifying service (without weightage) actually rendered and required for earning retiring pension shall be continue to be 20 years (15 years in the case of late entrants). (b) Retiring pension in respect of the Commissioned Officers of the three services, including MNs and TA officers, shall be calculated at 50% of the average of emoluments reckonable for pension as defined in paras 3 and 4 above. The amount so determined shall be subject to a maximum of Rs. 4,500/- p.m. and shall be the retiring pension for 33 years of reckonable qualifying service as defined in para 5 above; for lesser years of reckonable qualifying service, this amount shall be proportionately reduced." (Emphasis supplied). The mode of computation of service for the purpose of pension for the personnel below the officer rank is given in clause 6.2, which is quoted as under: "6.2 PERSONNEL BELOW OFFICER RANK (a) The minimum period of qualifying service (without weightage) actually rendered and required for earning service pension will continue to be 15 years (20 years in the case of NCs(E). (b) Service pension in respect of the personnel below officer rank of the three services (including those of the DSC and TA but excluding reservists) for 33 years of qualifying service shall be calculated at 50% of the emoluments reckonable for pension as defined in para 3 above, and for lesser period of qualifying service (as defined in para 5 above) it shall be reduced proportionately, the amount of service pension finally arrived at shall be subject to a minimum of Rs. 375/- p.m. (Emphasis supplied). 17. It is clear from the above clauses that the amount of pension so determined is subject to maximum of Rs. 4500/- p.m. in the case of officer and shall be the retiring pension for 33 years of reckonable qualifying service as defined in para 5 above; for lesser years of recknonable qualifying service, pension amount shall be proportionately reduced. 17. It is clear from the above clauses that the amount of pension so determined is subject to maximum of Rs. 4500/- p.m. in the case of officer and shall be the retiring pension for 33 years of reckonable qualifying service as defined in para 5 above; for lesser years of recknonable qualifying service, pension amount shall be proportionately reduced. It is clear that even the petitioner was denied full pension by counting only his ⅔ of service rendered as pre-commissioned officer even after implementation of Fourth Central Pay Commission Recommendation from the year 1987 whereas post 1st Jan., 1986 retires were given benefit of full length of service for pensionary purpose and the petitioner adversely effected by fixing date, 1st Jan., 1986 in the year 1987 itself. It is also an admitted case that because of not counting of the full and actual length of service, the petitioner was denied full benefit of the gratuity. Therefore, it is clear that the petitioner accepted the position of having lesser benefit as on 1st Jan., 1986 itself and he was given a different treatment in the year 1986 and the petitioner did not challenge the cut of date 1.1.1986 from the year 1987 to 2002 for more than 13 years and it cannot be said that the petitioncr is adversely effected only after coming into force of the recommendations of the Fifth Central Pay Commission and its implementation. It is other things that a part of the relief is now made available to the persons by the Fifth Central Pay Commission, which has not been made available to the petitioner and like persons, but they were treated as separately since 1986. 18. The Fifth Central Pay Commission very specifically considered the disparity between two set of personnel like pre-retiring and post-retiring of 1986 and took a policy decision to give some benefit and to remove some disparity. Not only this but the policy framers have considered the matter of pension of the service officer, who retired before 1st Jan., 1986, which is given in para 6 of the Annex. R/2. It cannot be presumed that the policy framers were not aware of the facts of the case and conditions which were applicable for the personnel serving in the Armed forces. R/2. It cannot be presumed that the policy framers were not aware of the facts of the case and conditions which were applicable for the personnel serving in the Armed forces. The matter, which was considered by the policy framers and after giving reason cannot be made subject matter of judicial review because of the reason that some benefit might have been available to the beneficiaries, have not been made available. 19. The net conclusion of above discussion is that thought pensionary benefit, was given by recommendation of Fifth Central Pay Commission to the pre-1986 retirees and the petitioner is falling in the category of pre-1986 retirees but the petitioner failed to prove that he was not adversely effected in the year 1987 when the Fourth Central Pay Commission Report was implemented and also failed to prove that date fixed as 1st Jan., 1986 in the recommendation of Fourth Central Pay Commission for giving benefit to the employees and denying the same to the employees who retired before 1st Jan., 1986 is arbitrary or or unreasonable. The petitioner also failed to prove that only because of implementation of recommendation of Fifth Central Pay Commission, the fixing of date 1st Jan., 1986 as cut of date in Fourth Central Pay Commission Report has adversely affected only due to changes made in the Fifth Central Pay Commission Report. The petitioner again challenged the settled position of counting of length of service for eligibility, which was prevailing since before 1978 and continued till 1986 by challenging it in the year 2002 as the prayer has been made by way of amendment in the writ petition in the year 2002, therefore, the writ petition of the petitioner deserves to be dismissed on the ground of delay. 20. The writ petition of the petitioner further liable to be dismissed on the ground that the petitioner did not produce the report of Fourth Central Pay Commission and Fifth Central Pay Commission, though they have been placed on record by the respondent in their reply to justify the decision taken in the reports. 21. Therefore, there is no force in the writ petition filed by the petitioner and the same is hereby dismissed.Petition dismissed. *******