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2002 DIGILAW 337 (GAU)

Malin Kanta Paul v. State of Tripura

2002-08-09

P.K.SARKAR

body2002
P.K. SARKAR, J.— These two cases involve the same question of fact and law and therefore, these two petitions are disposed of by this common order. 2. In WP(C) 62/00, the petitioner who is a State Govt. pensioner, challenges the legality of the notification of the Govt. of Tripura in the Finance Department No. 8(4)-Fin(G)/79-II by which the earlier notification dated 2.7.92 has been clarified. The petitioner prayed for quashing the said notification. The petitioner further prayed that the direction given by the High Court in its judgment dtd. 22.4.97 in Civil Rule 259/95 be complied with by the State-respondents. It is submitted that the petitioner retired from the post of Physical Instructor under the education Department of the Govt. of Tripura on 1.1.1990. The State Govt. employees get their pension as per provision of the CCS (Pension) Rules, 1972 as adopted by the Govt. of Tripura in the Finance Deptt. by notification dtd. 8.8.1978. The dearness allowance of the Govt. servants is at par with the dearness relief given to the State pensioners. The State Govt. has been issuing notification from time to time declaring the enhancement in the rate of dearness allowance and dearness relief, but the rate and periodicity of increase was not at par with that of the Central Govt. servants or pensioners. The rate of dearness relief to the Tripura Govt. employees and pensioners as on 1.4.95 were 42% behind the rate available to the Central Govt. pensioners. The Central Govt. revised the rate of dearness relief and dearness allowance every six months - once in 1st January and again in 1st July as a matter of routine, but the State Govt. was irregular in enhancing the rate of dearness allowance and dearness relief to the State Govt. employees and pensioners. The Central Govt. made an amendment in the CCS (Pension) Rules by a notification dtd. 22.1.91 by incorporating a new Rule 55(A) defining the dearness relief and its entitlement. The State Govt. adopted the aforesaid amendment of the Central Govt. which became a part of the Pension Rules applicable to the Tripura Govt. pensioners. The amendment was adopted by the State Govt. by a notification dtd. 2.7.92. It is alleged that even after the amendment of Rule 55(A), the State Govt. pensioners were not granted the dearness relief as available to the Central Govt. pensioners. which became a part of the Pension Rules applicable to the Tripura Govt. pensioners. The amendment was adopted by the State Govt. by a notification dtd. 2.7.92. It is alleged that even after the amendment of Rule 55(A), the State Govt. pensioners were not granted the dearness relief as available to the Central Govt. pensioners. It is further submitted that even after incorporation of Rule 5 5 (A) in the Pension Rules, Tripura Govt. did not allow the dearness relief to the pensioners at the Central Govt. rate and as a result, a writ petition was filed by the Govt. pensioners Association, Tripura which was registered as Civil Rule 259/95. The said case was decided on 22.4.97 and the High Court directed the State Govt. to pay dearness relief to all the State Govt. pensioners as are available to the Central Govt. pensioners. In compliance of the direction of the Court in Civil Rule 259/95, the State Govt. released further dearness relief to the State Govt. pensioners by a notification dtd. 11.2.98. However, it is alleged by the petitioner that Tripura Govt. has with drawn the notification dtd. 2.7.92 by which Rule 55(A) was incorporated by the impugned notification dtd. 27.10.98. It is submitted that by withdrawing the notification, the State Govt. has violated the order of the Court passed in Civil Rule 259/95 dtd. 22.4.97. In the meantime, a contempt application has been filed by the Govt. pensioners which has been registered as Contempt Case No. 17/99. 3. The petitioner challenges the notification dtd. 27.10.98 on the following grounds, namely: (a) That the notification is bad in law for taking away the accrued right of the petitioners in exercising the power of rule making authority. Such exercise of rule making power is on the face of it colourable and far exceeding the permissible limit of delegated legislation. (b) That the impugned notification is ultra vires to the provisions of Art. 309 of the Constitution which sought to give retrospective effect. (c) That the impugned notification was issued during the contempt proceeding. (d) That the impugned notification was not published in the official Gazette or other media for circulation and knowledge of the persons concerned. (e) That the impugned notification has taken away the right of the State Govt. pensioners to get dearness relief at par with the Central Govt. employees as per judgment dtd. (d) That the impugned notification was not published in the official Gazette or other media for circulation and knowledge of the persons concerned. (e) That the impugned notification has taken away the right of the State Govt. pensioners to get dearness relief at par with the Central Govt. employees as per judgment dtd. 22.4.97 passed in Civil Rule 259/95. It is, therefore, submitted that the impugned notification being ultra vires and bad in law has to be quashed. Accordingly, the petitioner has filed the present petition. 4. The State-respondents have filed the counter-affidavit wherein they have denied all the allegations made by the petitioners. It is submitted that it is the State policy to grant dearness allowance to the State Govt. employees at par with the dearness relief of the State Govt. pensioners. Dearness allowance and clearness relief is declared by the State Govt. from time to time in order to neturalise the price rise. It is, however, stated that because of the constrain of revenue, the State Govt. were behind the Central Govt. rate of dearness allowance/dearness relief. It is further stated in the counter-affidavit that CCS (Pension) Rules 1972 was adopted by the State Govt. and amendment made by the Central Govt. in the Pension Rules was also adopted by the State Govt. by a notification dtd. 2.7.92 by inserting Rule 55(A) which provides for granting relief against the price rise in the form of Dearness Relief. It is, however, stated by the respondent Govt. that this amendment cannot in any way change the authority of the State Govt. to grant dearness allowance/dearness relief. It is further stated that after adoption of the Central Govt. Rules in the CCS (Pension) Rules as adopted and application to the State Govt. employees and pensioners shall have to be read with modification as indicated in the Pension Rules. It is further stated that when amendment made by the Central Govt. in the Pension Rules by inserting Rule 55(A) was adopted by the State Govt., the said Rule 55(A) shall have the application with the modification as mentioned in the Pension Rules that is wherever the word 'Central Govt.' occurred, the word 'State Govt.' shall be substituted. It is stated that the State Govt. pensioners were under mis-conception that by the adoption of the aforesaid amendment, the State Govt. is legally bound to grant dearness relief to the State Govt. It is stated that the State Govt. pensioners were under mis-conception that by the adoption of the aforesaid amendment, the State Govt. is legally bound to grant dearness relief to the State Govt. pensioners at the same rate as are given to the Central Govt. pensioners. It is, however, submitted by the State Govt. in the counter-affidavit that in Civil Rule 259/95, the point could not be agitated before the Court properly and, thereby, the Court has directed the State Govt. to pay the State Govt. pensioners dearness relief at the same rate as are given to the Central Govt. pensioners. The Govt., however, implemented the aforesaid direction of the High Court and granted 125% dearness relief to the State Govt. pensioners in accordance with the directin of the Court. It is stated in the counter-affidavit that the impugned notification dtd 27.10.98 was issued with a view to clarify the provisions of Rule 55(A) as adopted by the Govt. of Tripura. Since there was a confusion in the earlier adoption order the matter has been clarified in the present impugned order and it has been clarified that the word 'Central Govt.', the word 'State Govt.' shall be substituted in Rule 55(A) of the Pension Rules. It is further submitted that the subject matter "State Pension" is relatable to entry 42 of the State List (List II) of the VII Schedule of the Constitution of India. Entry 42 deals with pension payable by State out of the consolidated fund of the State. It is further stated that Art. 246(3) of the Constitution provides that the State Legislature has exclusive power to make a law with respect to any matter enumerated in the said list of the VII Schedule. Article 162 of the Constitution provides that the executive power of the State extends to the matters with respect to which the legislature of the State has power to make laws. It is therefore evident that the executives have adopted the CCS (Pension) Rules in relation to the State Govt. employees and State Govt. pensioners and subsequent amendment made by the Central Govt. in their Pension Rules has been adopted by the State Govt. But such adoptions of new amendments are subject to the modification as mentioned in the Pension Rules adopted by the Central Govt. It is further stated that while adopting the Central Govt. employees and State Govt. pensioners and subsequent amendment made by the Central Govt. in their Pension Rules has been adopted by the State Govt. But such adoptions of new amendments are subject to the modification as mentioned in the Pension Rules adopted by the Central Govt. It is further stated that while adopting the Central Govt. Pension Rules it has been clearly specified that in the CCS (Pension) Rules the word 'President' wherever occur the word 'Governor' shall be substituted and for the word 'Central Govt.' wherever occur, the word 'State Govt.' shall be substituted and for the words 'Central Services', the word 'State Services' shall be substituted. It is further stated that the Central Govt. amended their Pension Rules in 1991 by inserting Rule 55(A) which provides that the relief against price rise may be granted to the pensioners and family pensioners in the form of dearness relief at such rate and subject to such condition as the Central Govt. may specify from time to time. The Central Govt. brought this amendment for Central Govt. pensioners and family pensioners who would get the dearness relief as the Central Govt. would specify from time to time. It is stated that the State Govt. has adopted the said amendment by notification dtd. 2.7.92. With the adoption of the amendment, it has become a part of the original rules as Rule 55(A) and the said new rule will have application subject to the modification indicated in the table of the Pension Rules adopted by the State Govt. and as per the adoption with modification that the word 'Central Govt.' shall have to be read as 'State Govt.'. The effect of such an adoption is that the State Govt. pensioners and the family pensioners would get dearness relief at such rate and subject to such condition as the State Govt. may specify from time to time. 5. Inspite of the aforesaid legal position the State Govt. pensioners filed Civil Rule 259/95 claiming D. A. at par with the Central Govt. employees and since the matter could not be explained by the Govt. to the Court properly and the point has not been agitated seriously by the State Govt., the Court also directed the State Govt. to grant the State Govt. pensioners at the same rate as are available to the Central Govt. pensioners. employees and since the matter could not be explained by the Govt. to the Court properly and the point has not been agitated seriously by the State Govt., the Court also directed the State Govt. to grant the State Govt. pensioners at the same rate as are available to the Central Govt. pensioners. It is, however, stated that since rules have been clarified and amended by the impugned notification, the State Govt. pensioners cannot claim dearness relief at the rate as are given to the Central Govt. pensioners. It is further stated that in complying with the direction of the High Court in the said case, an anomaly was first created between the State Govt. employees and the State Govt. pensioners. The State Govt. pensioners had to be paid 125% dearness relief although the State Govt. employees could not be paid 125% dearness allowance because of financial crunch of the Govt. To remove the anomaly, the Govt. as State policy have decided to clarify the notification so that there may not be any confusion in the mind of the Court that the rule was adopted subject to the modification mentioned in the table of the principle rules. It is further submitted that impugned notification was given retrospective effect, but it was made clear that the payments made in pursuance of the Hon'ble High Court's orders passed in Civil Rule 259/95 shall not be required to be refunded by the State Govt. pensioners. After clarifying the adoption notification of Rule 55(A) of the CCS (Pension) Rules by the impugned notification the State Govt. pensioners cannot claim dearness relief at the rate applicable to the Central Govt. pensioners and after clarification of the notification, the judgment has to be complied with as per clarified rules. It is further stated that in Contempt Petition 32/97, the High Court passed an order on 4.11.98 clarifying that the Govt. is bound to pay dearness relief in accordance with the judgment dtd. 22.4.97 passed in Civil Rule 259/95 unless the relevant rules were amended in the meanwhile. Before passing the order in the Contempt Case No. 32/97 on 4.11.98, the impugned notification was issued by the Govt. clarifying the authority of the State Govt. to declare dearness relief from time to time. Therefore, it is submitted that the adoption of Rule 55(A) has been clarified by the Govt. Before passing the order in the Contempt Case No. 32/97 on 4.11.98, the impugned notification was issued by the Govt. clarifying the authority of the State Govt. to declare dearness relief from time to time. Therefore, it is submitted that the adoption of Rule 55(A) has been clarified by the Govt. by the impugned notification in exercise of its executive powers under Art. 309 of the Constitution as well as, as per observation made by the Hon'ble High Court in its order dtd. 4.11.98 in Contempt Petition No. 32/97. It is, accordingly, submitted by the State Govt. that there is no merit in the writ petition and it should be dismissed. 6. The Contempt Case No. 17/99 has been filed by Tripura Govt. pensioners for drawing contempt proceeding against the respondents for committing deliberate disobedience of the direction passed by the Hon'ble High Court on 22.4.97 in Civil Rule No. 259 of 1995 and also for deliberate disobedience of the order passed by this Court on 4.11.1998 in Contempt Petition No. 32/97. It is stated that the petitioner has filed Civil Rule No. 259/95 claiming dearness relief at par with the Central Govt. pensioners and the Court vide judgment dtd. 22.4.97 directed the State Govt. to pay dearness relief at par with the Central Govt. pensioners. However, the judgment was not being implemented by the State Govt. because of filing an appeal against the decision of the learned Single Judge and even after disposal of the appeal, the Appellate Court extended the period for payment of arrear of dearness relief, but even then, the respondents were deliberately violating the order of this Hon'ble Court by not paying the dearness relief to the State Govt. pensioners at par with the Central Govt. pensioners. Thereafter, contempt petition was filed which has been registered as Contempt Case No. 32/97 and this Court by an order dtd. 4.11.98 directed the State Govt. to pay dearness relief to the State Govt. pensioners at the rate applicable to the Central Govt. pensioners as the judgment passed in Civil Rule No. 259/95 has attained finality. However, a rider was given stating that the respondents Govt. were under legal obligation to pay dearness relief to the State Govt. pensioners unless the relevant rules were amended in the meanwhile. After passing the aforesaid order on 4.11.98, the State Govt. clarified the notification by which the Central Govt. However, a rider was given stating that the respondents Govt. were under legal obligation to pay dearness relief to the State Govt. pensioners unless the relevant rules were amended in the meanwhile. After passing the aforesaid order on 4.11.98, the State Govt. clarified the notification by which the Central Govt. amendment regarding payment of dearness relief was adopted by the State Govt. The said notification was issued by the State Govt. on 27.10.98. Thereafter, the petitioners filed the present contempt application against the respondents for violating the Court's order. The contempt application was disposed of by this Court vide judgment and order dtd. 14.12.99 dropping the contempt. The said contempt was dropped on the ground that a legal disability has been created by clarifying the notification dtd. 27.10.98 and therefore, the respondents cannot be held to have violated the order of the Court and there is no willful disobedience on the part of the respondents is not complying with the direction passed in Civil Rule No. 259/95 and Contempt Petition No. 32/97. Thereafter, having felt aggrieved by the judgment and order a review petition was filed and this Court by an order dtd. 11.8.00 recalled the judgment and order passed by this Court on 14.12.99 and directed for rehearing of the contempt petition. In the meantime, W.P.(C) No. 62/00 has been filed by another Govt. pensioner and both these two cases were directed to be heard analogously. 7. Having felt aggrieved by the order of this Court dtd. 11.8.00 in the review petition, the respondents filed SLP before the Supreme Court. However, the said SLP was withdrawn by the respondents. It was intimated to the Apex Court by the learned counsel of the respondents-petitioners that the respondents may raise their contention before the High Court when the propose contempt action will be considered. In view of the submission of the learned counsel, SLP was allowed to be withdrawn by the Apex Court. Thereafter, the matter has come up for hearing. 8. Both the respondents have filed separate counter-affidavit. The Principal Secretary, Govt. of Tripura, respondent No. 1 Shri Shashi Prakash has stated in his counter-affidavit that the respondent has complied with the direction of the High Court by issuing notification dtd. 11.2.98 from the Finance Department. Thereafter, the matter has come up for hearing. 8. Both the respondents have filed separate counter-affidavit. The Principal Secretary, Govt. of Tripura, respondent No. 1 Shri Shashi Prakash has stated in his counter-affidavit that the respondent has complied with the direction of the High Court by issuing notification dtd. 11.2.98 from the Finance Department. It is, however, stated by the respondent that other directions could not be complied with by the respondents in view of the clarification/notification made by the State Govt. by a notification dtd. 27.10.98. It is submitted that the State Govt. has adopted CCS (Pension) Rules, 1972 with certain modification and the modifications have been indicated in the adoption notification dtd. 8.8.78. It is submitted that the modification that has to be made in the CCS (Pension) Rules, 1972 in its application to the State Govt. pensioners, the said rule will have the application with the following modification as indicated in the table. From the notification dtd. 8.8.78, in the table, it has been stated that for the word "President", the word "Governor" shall be substituted, for the words "Central Services" the words "State Services" shall be substituted and for the words "Central Govt.", the words "State Govt." shall be substituted and some other modifications have also been indicated in the table. So, the respondent, therefore, submitted that while adopting the amendment made by the Central Govt. in the Pension Rules, the Govt. was under impression that the said amendment will have force with the modification indicated in the table of the notification dtd. 8.8.78. However, the State Govt. pensioners claimed dearness relief on the basis of the amendment adopted by the State Govt. by notification dtd. 2.7.92. It is further stated that when the amendment of Rule 55A of the CCS (Pension) Rules was adopted by the State Govt. authority was under the impression that the said rule will also have application subject to the notification dtd 8.8.78. Therefore, the State Govt. was under impression that the State Govt. pensioners are entitled to dearness relief as and when declared by the State Govt. 9. In Civil Rule No. 259/95 there were two directions one - general direction for payment of dearness relief to the State Govt. pensioners at par with the Central Govt. pensioners, two - the direction of in respect of payment of arrear dearness relief at 42 percent. 9. In Civil Rule No. 259/95 there were two directions one - general direction for payment of dearness relief to the State Govt. pensioners at par with the Central Govt. pensioners, two - the direction of in respect of payment of arrear dearness relief at 42 percent. It is, therefore, submitted in the counter-affidavit that after complying of the specific direction of this Court to pay 42% arrear dearness relief, the State Govt. has issued notification on 27.10.98 amending and clarifying the relevant provisions particularly Rule 55A of the Pension Rules without affecting dearness relief already granted to the pensioners at the Central rate as per direction of the Court. It is further stated in the concluding part of the said notification, that it has been clarified that the State Govt. pensioners shall continue to get dearness relief at such rate and under such condition as the State Govt. may order from time to time as in case of State Govt. employees. It is further stated that in view of the clarification of the amendment made regarding Rule 55 A of the Pension Rules, the State Govt. pensioners cannot claim dearness relief at par with the Central Govt. pensioners. It is further stated that having regard to the finance condition of the State, the State Govt. has amended/clarified the Rule 55A and it is within competence of the executive to clarify and amend the rules. The respondent consequently submitted that after amendment/ clarification of Rule 5 5 A, the petitioners-State Govt. pensioners have no right to claim Dearness Relief at par with the Central Govt. pensioners at Central Govt. rate and, as such, there is no violation of the direction of the Court. It is further stated that in competent petition 32/97, this Court vide order dtd. 4.11.98 observed that the respondents are under legal obligation to pay Dearness Relief to the State Govt. pensioners at the Central rate unless relevant Rules were amended in the meanwhile. It is submitted that this order was passed by this Court on 4.11.98, but before that the Govt. has clarified/amended Rule 55 A and, therefore, there is no willful violation of the Court's order by the respondents. 10. First, I will discuss the claim of the petitioner in WP(C) 62/00. The petitioner is a Govt. pensioner and claims Dearness Relief at Central rate like Central Govt. pensioners. Mr. has clarified/amended Rule 55 A and, therefore, there is no willful violation of the Court's order by the respondents. 10. First, I will discuss the claim of the petitioner in WP(C) 62/00. The petitioner is a Govt. pensioner and claims Dearness Relief at Central rate like Central Govt. pensioners. Mr. D.K. Biswas, learned counsel for the petitioner submits that Central Govt. amended CCS (Pension) Rules by notification dtd. 22.1.91 incorporating Rule 55A where Dearness relief has been defined regarding entitlement of Dearness relief. The State Govt. adopted the amended Rule 55A by notification dated 2.7.92 Central Govt. notification and the notification adopting the Central rule has been annexed as Annexure-3 series. It is submitted by Mr Biswas that even after adopting Rule 55A, the State Govt. pensioners were not given dearness relief in the same rate as the Central Govt. pensioners. It is further submitted by Mr Biswas that after adoption of the Rule 55 A, the State Govt. is under obligation to pay dearness relief to the State Govt. pensioners at such rate and subject to such conditions as the Central Govt. may specify from time to time. It is submitted that even though Central Govt. enhanced the rate of dearness relief to the Central Govt. pensioners, but the State Govt. were not increasing the dearness relief of the State Govt. pensioners. Mr Biswas accordingly submits that after adoption of Rule 55A, the State Govt. is under obligation to pay dearness relief to the State Govt. pensioners at the same rate as are paid to the Central Govt. pensioners. It is further submitted by Mr Biswas that since the State Govt. pensioners were not given dearness relief at the same rate of the Central Govt. pensioners, Tripura Govt. pensioners' Association filed a writ petition which has been registered as Civil Rule No. 259/95 and that case was decided on 22.4.97 and the learned Single Judge has directed the State Govt. to pay dearness relief to the State Govt. pensioners at the same rate as are given to the Central Govt. pensioners. Mr Biswas accordingly submits that according to Rule 55A of the Pension Rules as adopted by the State Govt. by notification dtd. 2.7.92 and in accordance with the judgment passed in Civil Rule No. 259/95, which was affirmed in W.A.330/97(W.A. 10/00(Agt), the State Govt. pensioners at the same rate as are given to the Central Govt. pensioners. Mr Biswas accordingly submits that according to Rule 55A of the Pension Rules as adopted by the State Govt. by notification dtd. 2.7.92 and in accordance with the judgment passed in Civil Rule No. 259/95, which was affirmed in W.A.330/97(W.A. 10/00(Agt), the State Govt. is under obligation to pay dearness relief to the petitioner at the same rate as are allowed to the Central Govt. pensioners. 11. From the argument of Mr Biswas, it appears that the petitioner claims dearness relief at the Central rate on the basis of Rule 55 A of the Pension Rules as adopted by the State Govt. and also in pursuance of the judgment passed by this Court on 22.4.97 in Civil Rule No. 259/95. Therefore, question arises whether with the adoption of the Rule 55A of the Pension Rules, the petitioner becomes automatic entitled to dearness relief at the rate of Central Govt. pensioners and whether according to the judgment passed by this Court on 22.4.97 in Civil Rule No. 259/95 which was affirmed by the Division Bench in W.A.330/97(W.A. 10/00), petitioner is entitled to clearness relief at Central rate. 12. For deciding these issues, it is necessary to relief the amendment rules. It is an admitted fact that Tripura Govt. did not frame any separate set of rules for regularising the Pension of State Govt. pensioners. The State Govt. adopted CCS (Pension) Rules, 1972 by notification dtd. 8.8.78 with certain general and special modification and Central Rules were adopted with modification to be applied to the State Govt. pensioners. The Central Govt. in the Ministry of Personnel, P.G. & Pensions (Department of Pensions and P.W.) by notification dtd. 22.1.91 amended the CCS (Pension) Rules. By the aforesaid amendment the Central Govt. made certain modification in various provisions of rules and a new rule as Rule 55A has been incorporated which runs as follows: "55A Dearness Relief on Pension/Family Pension (i) Relief against price rise may be granted to the pensioners and family pensioners in the form of dearness relief at such rates and subject to such conditions as the Central Govt. may specify from time to time, (ii) If a Pensioner is re-employed under the Central or State Govt. may specify from time to time, (ii) If a Pensioner is re-employed under the Central or State Govt. or a Corporation/ Company/Body/Bank under them in India or abroad including permanent absorption in such Corporation/Company/Body/Bank, he shall not be eligible to draw dearness relief on Pension/family Pension during the period of such re-employment. (iii) The Central Govt. employees who get permanently absorbed in terms of Rule 37 are opt for lump-sum-payment in lieu of pro-rata monthly Pension in terms of Rule 37, shall not be eligible for dearness relief." 13. The State Govt. in the Finance Deptt. by notification dtd. 22.7.92 adopted the amendment made by the Central Govt. in their Pension Rules. 14. Mr B.R. Bhattacharjee, learned Advocate General, Tripura submits that when the State Govt. has adopted the amendment made by the Central Govt. by notification dtd. 22.1.91, the said amendment were not incorporated in Tripura Pension Rules and it is necessary to read the rule in its application to Tripura Govt. pensioners with the modification as shown in the table while adopting the CCS (Pension) Rules by notification dtd. 8.8.78. In this connection, it is necessary to reproduce the notification of the Govt. dtd. 8.8.78 by which the Central Civil Service (Pension) Rules 1972 have been adopted by the State Govt. with certain general and special modification. For the purpose of this case, it would be sufficient to indicate the general modification made in the CCS (Pension) Rules in its application to the Tripura Govt. pensioners. The relevant portion of the notification dtd. 8.8.78 is reproduced below: "Government of Tripura Finance Department No. F.1(3)-FIN(G)77 dtd. Agt. the 8th August, 1978 Notification In exercise of the powers conferred by Article 309 of the Constitution of India and all other powers enabling him in that behalf the Governor of Tripura has been pleased to adopt the Central Civil Services (Pension) Rules, 1972 as given in the Annexure which shall be applicable to the Government Servants in connection with the affairs of the Government of the State of Tripura, subject to the following modifications namely:- Modification A General 1. Whenever an expression mentioned in column 1 of the table below occurs in the said rules, then, unless that expression is by this notification directed to be otherwise modified, or to stand un-modified, or to be omitted, there shall be substituted therefore the expression set opposite to it in column 2 of the said table, and there shall also be made in any sentence in which that expression occurs such consequential amendments as rules of grammar may require. Table 1 2 President Governor President of India Governor of Tripura Central Government State Government Central Service State Service Union Public Service Tripura Public Commission Service Commission Consolidated Fund of India Consolidated Fund of the State of Tripura Ministry of Finance Finance Department Government of India Government of Tripura 15. Mr B.R. Bhattacharjee, learned Advocate General further submits that the Central Govt. amended the Central Govt. rules by notification dtd. 21.1.91 in its application to the Central Govt. pensioners and family pensioners and that amendment cannot be automatically applied to the State Govt. pensioners and the State Govt. family pensioners. It is further submitted by Mr Bhattacharjee that State Govt. pensioners and family pensioners will get the dearness relief in accordance with the provisions made in the Tripura Pension Rules. It is submitted by Mr Bhattacharjee that by adopting the amendment made by the Central Govt. on 21.1.91, the State Govt. definitely adopted the Rule 55A and after adoption, the said Rule 55A has become a part of Rule 55A of the CCS (Pension) Rules in its application to Tripura Govt. pensioners and the said provisions have to be read with the modification shown in the table. Mr Bhattacharjee further submits that Rule 55 A(i) is relevant in the present case. Rule 55A(i) as amended by the Central Govt. by notification dtd. 22.1.91 read as follows: "55 A Dearness Relief on Pension/Family Pension (i) Relief against price rise may be granted to the Pensioners and family Pensioners in the form of dearness relief at such rates and subject to such conditions as the Central Govt. may specify from time to time." 16. by notification dtd. 22.1.91 read as follows: "55 A Dearness Relief on Pension/Family Pension (i) Relief against price rise may be granted to the Pensioners and family Pensioners in the form of dearness relief at such rates and subject to such conditions as the Central Govt. may specify from time to time." 16. Mr Bhattacharjee accordingly submitted that when Rule 55A has become a part of Tripura Pension Rules, then it will have to be read as follows:- "Relief against price rise may be granted to the Pensioners and family Pensioners in the form of dearness relief at such rates and subject to such conditions as the "State Govt" may specify from time to time. 17. Mr Bhattacharjee submits that according to the general modification made in the CCS (Pension) Rules by notification dtd. 9.8.78, the words "Central Govt." have to be substituted in Rule 55 A by the words "State Govt.". In support of his contention, Mr Bhattacharjee further submits that the subject matter "State Pension" is relatable to Entry 42 of the State List (LisMI) of the VII Schedule of the Constitution of India and the Pension payable out of the consolidated fund of the State are to be regulated by laws framed by the State Legislature. It is further stated by Mr Bhattacharjee that Art. 162 of the Constitution provides that the executive power of the State extends to the matters with respect of which the Legislature of the State has power to make laws. Mr Bhattacharjee consequently submits that Pension being a State subject the Governor in exercise of his power under Article 309 of the Constitution of India can only make laws regarding State Govt. pensioners and the Central Govt. has nothing to say about the State Govt. pensioners. The State Govt. pensioners are to be regulated by the rules framed by the State Govt. Learned Advocate General further submits that CCS (Pension) Rules was adopted by the Governor in exercise of power conferred on him by Art. 309 of the Constitution and while adopting that rule, it has been clearly indicated that the rule shall apply to the State Govt. pensioners with certain modifications and modifications have been indicated in the table of the said adoption notification. 18. There is sufficient force in the submission of Mr Bhattacharjee. It is true that the State Govt. has adopted the amendment made by the Central Govt. pensioners with certain modifications and modifications have been indicated in the table of the said adoption notification. 18. There is sufficient force in the submission of Mr Bhattacharjee. It is true that the State Govt. has adopted the amendment made by the Central Govt. in the CCS (Pension) Rules, 1972 by notification dated 22.1.91 and the State Govt. has adopted the said amendment by notification dtd. 2.7.92.1 am of the view that by adoption of the amendment made by the Central Govt. in the CCS (Pension) Rules, the adopted part will form a part of Tripura Pension Rules as adopted by the State Govt. by notification dtd. 8.8.78. Tripura Govt. also adopted CCS (Pension) Rules with certain modification and one of the modification indicated in the table is for words "Central Govt." the words "State Govt." shall be substituted and for words "Central Services" the words "State Services"/ shall be substituted. Consequently, while after adoption, Rule 55 A has become a part of Tripura Pension Rules, this Rule 55A has to be read with modification indicated in the table of the notification dtd. 8.8.78. Consequently in Rule 55 A as amended by the Central Govt. wherever the words "Central Govt." appears after adoption of the amendment Rule 55A, the words "Central Govt." must be read as "State Govt." in its application to the State Govt. pensioners. Therefore; I am clearly of the view that with the modification indicated in the table Rule 55A as adopted by the State Govt., in its application to the State Govt. pensioners as per Tripura Govt. Pension Rules, that will read as follows: "Rule 55A. Relief against price rise may be granted to the Pensioners and family Pensioners in the form of dearness relief at such rate and subject to such condition as the State Govt. may specify from time to time." Consequence of adoption of the Central Govt. amendment, it will lead to only one conclusion that for the words "Central Govt., the words "State Govt." shall have to be read. The Central Govt. Pension Rules or the amendment made by the Central Govt. cannot have automatic application to the State Govt. pensioners. The way State Govt. adopts the Central Rule, it will not apply in the straight way. In view of the fact that the State Govt. The Central Govt. Pension Rules or the amendment made by the Central Govt. cannot have automatic application to the State Govt. pensioners. The way State Govt. adopts the Central Rule, it will not apply in the straight way. In view of the fact that the State Govt. applied the CCS (Pension) Rules with modification as indicated in the table, all amendments are to be read with modification as indicated in the table. 19. From the foregoing discussion, it is clear that the State Govt. pensioners cannot claim dearness relief at Central rate whenever Central Govt. increases dearness relief to the Central Govt. pensioners simply because of Rule 55A has been adopted by the State Govt. The consequence of the adoption has to be seen and rules have to be applied in its application to the State Govt. pensioners in accordance with the adoption order as indicated in the notification dtd. 8.8.78.1 do not find any force in the submission of Mr Biswas that the State Govt. pensioners are entitled to dearness relief at the rate as Central Govt, pensioners are getting dearness relief because the State Govt. has adopted the amendment made by the Central Govt. by notification dtd. 22.1.91. 20. Second argument made by Mr Biswas that the Tripura Govt. pensioners' Association earlier filed a writ petition which was registered as Civil. Rule No. 259/95 and this Court vide judgment and order dtd. 22.4.97 directed the State Govt. to pay the petitioners i.e.. State Govt. pensioners dearness relief at the same rate as are available to the Central Govt. pensioners. Mr Biswas further submits that in that case also the State Govt. pensioners claimed dearness relief at Central rate or in other words at par with the Central Govt. pensioners on the basis of Rule 55 A of the CCS (Pension) Rules as adopted by the State Govt. by its notification dtd. 2.7.92 and the Court has granted relief to the State Govt. pensioners directing the State Govt. to pay its pensioners dearness relief at the rate applicable to the Central Govt. pensioners. 21. I have gone through the judgment passed in W.P.(C) No. 259/95 on 22.4.97. It is true that Tripura Govt. pensioners claims dearness relief at par with the Central Govt. pensioners on the basis of Rule 55A as adopted by the State Govt. by notification dtd. 2.7.92. In the said case, the Govt. pensioners. 21. I have gone through the judgment passed in W.P.(C) No. 259/95 on 22.4.97. It is true that Tripura Govt. pensioners claims dearness relief at par with the Central Govt. pensioners on the basis of Rule 55A as adopted by the State Govt. by notification dtd. 2.7.92. In the said case, the Govt. took stand that mere adoption of Central Govt. amendment in Rule 55A does not create any right on the State Govt. pensioners to get Pension at Central rate or at the rate as are admissible to the Central Govt. pensioners ignoring the financial ability and capability of the State Govt. at a particular point of time and ignoring the liabilities and responsibilities towards larger section of the people of the State. In the counter-affidavit, the State Govt. further averred that the State Govt. has already decided that it would pay the dearness allowance and dearness relief to State Govt. employees and State Govt. pensioners when the fund would be available. It is further stated in the counter-affidavit that the State Govt. is solely depend upon the Central Assistance and, as such, State Govt. is unable to pay dearness relief unless the additional fund is made available to it by the Central Govt. It is further stated that the State Govt. is very much sympathetic to its employees, but it is unable to clear up the dearness relief because of financial constraint. 22. From the aforesaid judgment, it is very clear that stand of the Govt. in Civil Rule No. 259/95 is to pay the dearness relief to the State Govt. pensioners at Central rate. The case was argued mainly on the account of availability of fund by the State Govt. In the judgment, learned Single Judge has also obtained information not only from the Finance Deptt. of the State Govt., but also from the Accountant General, Tripura regarding availability of fund in making payment of dearness relief to the State Govt. pensioners. No point was raised or argued whether by virtue of adoption of Rule 55A the State Govt. pensioners are automatically entitled to dearness relief at Central rate or at par with the Central Govt. pensioners. There is no finding of the Court on this point. pensioners. No point was raised or argued whether by virtue of adoption of Rule 55A the State Govt. pensioners are automatically entitled to dearness relief at Central rate or at par with the Central Govt. pensioners. There is no finding of the Court on this point. After considering the fund position of the State from the reports of the 9th Finance Commission and 10th Finance Commission as well as Planning Commission and after obtaining the report from the Finance Deptt. of the State and Accountant General, Tripura, when the learned Single Judge was satisfied about the availability of fund, the learned Single Judge straightway directed the State Govt. to pay the State Govt. pensioners dearness relief at the rate available to the Central Govt. pensioners. The judgment is mainly based on availability of fund and when the learned Single Judge was satisfied that fund was available, learned Single Judge directed the State Govt. to pay State Govt. pensioners dearness relief at the rate applicable to the Central Govt. pensioners. The Court did not decide the issue whether by virtue of adoption of Rule 55 A, the State Govt. pensioners are automatically entitled to get dearness allowance at the rate available to the Central Govt. pensioners. No where it has been discussed what would be the effect after adoption of the Rule 55 A in its application to the Tripura Govt. pensioners. It would be relevant to quote the submission of learned Advocate General in the said case in para-24 of the said judgment. I am reproducing the relevant portion of para-24 of the said judgment. "24. It would be quite apparent from the chart quoted above that on 1.4.1995 the State Govt. paid upto 83% whereas the Central Govt. paid upto 125% on 1.1.1995. It is, therefore, clear that the State Govt. is lagging behind 42%. This being the admitted position of the case Mr Ghosh learned counsel for the respondents was asked to state the period within which the Government would be in a position to clear up the dues. This was felt necessary as on certain date prior to the final date of hearing learned Advocate General conceded that the Government is agreeable to clear up the dues as per the intervals granted by this Court in its judgment dated 7.2.1996 passed in Civil Rule No. 525/95. This was felt necessary as on certain date prior to the final date of hearing learned Advocate General conceded that the Government is agreeable to clear up the dues as per the intervals granted by this Court in its judgment dated 7.2.1996 passed in Civil Rule No. 525/95. But Mr Biswas, the learned counsel for the petitioner has contended that the case of the petitioner cannot be compared with that of the petitioners in Civil Rule No. 525/1995. It is submitted by Mr Biswas that the Pensioners are admittedly old men and they are not only physically and mentally crippled but financially too. Therefore, their case stands apart. I find considerable force in the submission of Mr Biswas, learned counsel for the petitioner as it cannot be denied that the Pensioners are not only old men but they are also physically, mentally and financially crippled and hence their case needs special treatment. The term 'Pension' has been judicially defined as a stated allowances or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus the Pension payable to a Government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation for service rendered. Therefore, it is a debt to the Government." 23. It would be quite apparent from the above quoted portion that on 1.4.1995, the State Govt. paid upto 83% whereas the Central Govt. paid 125% as on 1.1.1995. It is, therefore, clear that the State Govt. is lagging behind 42 percent. This being the admitted position of the case, Mr A. Ghosh, learned counsel for the respondents was asked to state the period within which the Govt. would be in a position to clear up the dues. This was felt necessary as on certain date prior to the final date of hearing, learned Advocate General conceded that the Govt. is agreeable to clear up the dues as per the intervals granted by this Court in its judgment dtd. 7.2.1996 passed in Civil Rule No. 525/95. From the aforesaid submission of the learned Advocate General, it is evident that the Govt. conceded to pay the arrear dearness relief upto 125% as were applicable at that time to the Central Govt. pensioners within such intervals as the Court made allowed. 7.2.1996 passed in Civil Rule No. 525/95. From the aforesaid submission of the learned Advocate General, it is evident that the Govt. conceded to pay the arrear dearness relief upto 125% as were applicable at that time to the Central Govt. pensioners within such intervals as the Court made allowed. Therefore, it is evident that the judgment and order passed by this Court on 22.4.97 in Civil Rule No. 259/95 was as per admission made by the learned Advocate General and the said judgment also discussed in detail the financial position of the State and thereafter, directed the State Govt. to pay the State Govt. pensioners dearness relief at the rates applicable to the Central Govt. pensioners. The Apex Court discussed in detail in the case of Municipal Corporation of Delhi-Vs-Gurnam Kaur reported in (1989) 1SCC101 regarding the decisions of the Court which have no binding force. While discussing, the Apex Court held that obiter dicta, per incuriam and sub silentio decisions and orders, other orders made with consent of parties and with the reservation that the same should not be treated as precedent, are not binding. In the earlier case, the Pensioners claim Pension at Central rate on the basis of adoption of Rule 55 A as amended by the Central Govt. The State Govt. denied in the counter-affidavit that by mere adoption, the State Govt. pensioners do not entitle to get Pension at the rates applicable to the Central Govt. pensioners. However, this question was neither raised during the argument; nor was it decided by the Court. On the contrary, it appears that earlier judgment was passed mainly on the consent of the State Govt. because it is evident that the learned Advocate General submitted before the Court that Govt. is agreeable to pay dearness relief to the State Govt. pensioners at Central rate as are available at that time. Learned Single Judge even did not express his opinion about the consequence of adoption of Rule 55A by the State Govt. No decision or even opinion was expressed by the learned Single Judge in the earlier case whether by virtue of adoption of Rule 55 A a legal right has been accrued to the State Govt. pensioners to get dearness relief at the rate applicable to the Central Govt. pensioners. No decision or even opinion was expressed by the learned Single Judge in the earlier case whether by virtue of adoption of Rule 55 A a legal right has been accrued to the State Govt. pensioners to get dearness relief at the rate applicable to the Central Govt. pensioners. No opinion has been expressed by the learned Single Judge whether any statutory obligation was created on the State Govt. to pay dearness relief to the State Govt. pensioners at the rates applicable to the Central Govt. pensioners. In the earlier case, learned Single judge did not discussed or expressed any opinion about the effect of adoption of Rule 55 A by the State Govt. in its application to the Tripura Pension Rules. Admittedly, the learned Single Judge did not discuss or gave any finding that after adoption of Rule 55 A and its incorporation in the Tripura Pension Rules whether the Central Govt. or the State Govt. is the authority to grant dearness relief to the State Govt. pensioners. Undoubtedly, as per general modification of the Tripura Pension Rules, it is the State Govt. who is competent to grant dearness allowance to its Pensioners. The law is very clear on this point. That apart, the learned Single Judge could not have made the impugned direction in the earlier case contrary to the provisions of Rule 55A in its application to the State Govt. pensioners as per provisions of Tripura Pension Rules. Rule 55A as adopted by the State Govt. with modification empowers only the State Govt. to grant dearness relief within State Govt. pensioners. Therefore, I am clearly of the opinion that the petitioner had no legal enforceable right in the earlier case to the grant of a direction as was given in the earlier case. The High court could not obviously issue any such direction which would tantamount to a breach of law. Further more, High Court could not also make direction in Civil Rule No. 259/95 in view of the provisions contained in Rule 55A of the Tripura Pension Rules which expressly conferred the power on the State Govt. to grant dearness relief to the State Govt pensioners. Earlier judgment in Civil Rule No. 259/95 was passed mainly on the consent of the learned Advocate General, Tripura on behalf of the State Govt. respondents and after examining the financial position of the State. to grant dearness relief to the State Govt pensioners. Earlier judgment in Civil Rule No. 259/95 was passed mainly on the consent of the learned Advocate General, Tripura on behalf of the State Govt. respondents and after examining the financial position of the State. When a direction or order is made by consent of the parties, the Court does not adjudicate upon the rights of the parties nor does it as lay down any principle. Quotability as 'law' applies to the principle of a case, its ratio decidendi. The only thing in a Judge's decision binding as an authority upon a subsequent Judge is the principle upon which the case was decided. Statements which are not part of the ratio descidendi are distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty because without any investigation into the facts as in the present case it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. That being so, the direction made by this Court, in Civil. Rule No. 259/95 could not be treated to be a precedent and binding on me. With all respect to the learned Single Judge who passed order in Civil Rule No. 259/95,1 cannot concede that this Court is bound to follow it. Earlier judgment was delivered without discussing the point of law whether by adoption the State Govt. pensioners are automatically entitled to dearness relief at the rate applicable to the Central Govt. pensioners. No argument was made regarding the consequence of adoption of Rule 55A by the State Govt. Therefore, I am of the view that judgment in earlier case directing the State Govt. to pay State Govt. pensioners dearness relief at the rates applicable to the Central Govt. pensioners is a decision which can be treated as given per incuriam as the direction was given without discussing the applicability of Rule 55A after adoption of by the State Govt. So far as the judgment and order of the earlier case shows, no argument was addressed to the Court on the question whether or not any direction could properly be made compelling the State Govt. to pay dearness relief to the State Govt. pensioners as may be declared by the Central Govt. So far as the judgment and order of the earlier case shows, no argument was addressed to the Court on the question whether or not any direction could properly be made compelling the State Govt. to pay dearness relief to the State Govt. pensioners as may be declared by the Central Govt. to its Pensioners in the face of modification indicated in the table of the notification dtd. 8.8.78. 24. After going through the judgment of Civil Rule No. 259/95,1 am clearly of the view that a question was raised by the Govt. that by adoption of Rule 55A, the State Govt. pensioners do not automatically become 'entitled to get dearness relief at the Central rate as and when declared by the Central Govt. The Court mainly discussed the financial position of the State and when the Court was satisfied about the finance position of the State issued direction for payment of dearness relief to the State Govt. pensioners at the rate applicable to the Central Govt. pensioners, but the first question regarding applicability of Rule 55A and entitlement of the State Govt. pensioners by virtue of adoption of Rule 55A has neither been discussed nor decided by the learned Single Judge in the earlier case. In the said circumstances, although financial position of the State was one of the factor to be considered, the directions were issued without considering the effect of Rule 55A in its application to the State Govt. pensioners. Therefore, the earlier judgment passed in Civil Rule No. 259/95 cannot be a decision or authority on the question whether by adoption of Rule 55A, the State Govt. pensioners will automatically become entitled to get dearness relief at the Central rate as and when declared by the Central Govt. Therefore, direction by the learned Single Judge in the earlier case to pay the dearness relief to the State Govt. pensioners at Central Govt. rate has been passed sub silentio. 25. Having felt aggrieved by the decision of the learned Single Judge in Civil Rule No. 259/95 decided on 22.4.97, the State Govt. filed an appeal before this Court which was registered as W.A.330/ 97 (W.A. 10/00 (Agt.). In appeal also even though the State Govt. has raised many point but the appeal was heard on the point of financial capability of the State to pay dearness relief at the Central Govt. filed an appeal before this Court which was registered as W.A.330/ 97 (W.A. 10/00 (Agt.). In appeal also even though the State Govt. has raised many point but the appeal was heard on the point of financial capability of the State to pay dearness relief at the Central Govt. rate and learned Advocate General submitted that considering the financial ability of the State it would not be possible for the State Govt. to pay D.R. to the State Govt. pensioners at Central rate within time fixed by the learned Single Judge. The Division Bench of this Court after considering the submission of the learned Advocate General made the following order: "Regard being had to the number of persons eligible for the grant of dearness relief and the quantum of money needed to comply with the first part of the operative portion of the order and accepting the argument of the learned Advocate General, we hereby extend the last date for making payment of the 20% of the unpaid dearness relief out of the 42% not later than 21st October, 1997, and the remaining 22% shall be paid in terms of the order of the learned Single Judge not later than 31st December, 1998. We hope that the appellants will be able to comply with the directions of the learned Single Judge during the rescheduled time as fixed by this Court. Ordered accordingly. Parties to bear their own costs." 26. From the aforesaid direction of the Division Bench of this Court, it is clear that in appeal also only financial aspect was examined and no decision was given as to whether Tripura Govt. pensioners are automatically entitled to get dearness relief at par with the Central Govt. pensioners. No point has been raised and no decision was given even by the Division Bench whether Rule 55 A of the Tripura Pension Rules create any obligation on the State Govt. to pay dearness relief to the State Govt. pensioners at the rate fixed by the Central Govt. as and when declared by the Central Govt. Therefore, it is evident that neither before the learned Single Judge nor before the Division Bench, the point regarding applicability of Rule 55A was examined by the Court; nor any decision was given on that point. pensioners at the rate fixed by the Central Govt. as and when declared by the Central Govt. Therefore, it is evident that neither before the learned Single Judge nor before the Division Bench, the point regarding applicability of Rule 55A was examined by the Court; nor any decision was given on that point. Therefore, I am clearly of the view that decision of learned Single Judge as well as Division Bench cannot be a decision or authority on the question whether by adoption of Rule 55A by the State Govt., the State Govt. pensioners will automatically become entitled to get dearness relief at Central rate as and when such dearness relief is declared by the Central Govt. The direction given to the State Govt. to pay dearness relief to the State Govt. pensioners at Central rate as and when such rates are declared by the Central Govt. has been passed sub silentio. In my opinion, the State Govt. pensioners cannot claim dearness relief at Central rate as and when declared by the Central Govt. simply because the State Govt. has adopted the amendment made in the Pension Rules by incorporating Rule 55A. When the amendment rules were adopted by the State Govt. that have to be read with modification as indicated by the State Govt. while adopting the CCS (Pension) Rules by notification dtd. 8.8.98 and the State Govt. pensioners can claim dearness relief as and when the same is declared by the State Govt. and not by the Central Govt. 27. Mr DK Biswas, learned counsel appearing on behalf of the petitioner further argues that in pursuance of the judgment and order passed by this Court in Civil Rule No. 259/95 and affirmed in W.A.330/97 (W.A.10/00(Agt), the petitioner is entitled to get dearness relief at Central rate as and when declared by the Central Govt. Mr Biswas also submits that in earlier case, the State Govt. pensioners' Association filed the writ petition claiming dearness relief on the basis of Rule 55A as adopted by the State Govt. and the Court has also issued direction accordingly. I have already discussed that the earlier judgment cannot be a decision or authority on the question whether by adoption of Rule 55A, the State Govt. pensioners will automatically become entitled to get dearness relief at the Central rate as and when declared by the Central Govt. and the Court has also issued direction accordingly. I have already discussed that the earlier judgment cannot be a decision or authority on the question whether by adoption of Rule 55A, the State Govt. pensioners will automatically become entitled to get dearness relief at the Central rate as and when declared by the Central Govt. After adoption of Rule 55 A by the Govt. of Tripura in the Finance Department notification dtd. 2.7.92, Annexure-3, rules have to be read with modification as indicated in the table of the notification dtd. 8.8.98. Consequently after adoption of Rule 55A and its incorporation in the Tripura Pension Rules, the words "Central Govt." have to be substituted by the words "State Govt." consequently, the State Govt. is the ultimate authority to declare dearness relief to the State Govt. pensioners and not by the Central Govt. Accordingly, I do not find any merit in the argument of Mr Biswas, learned counsel for the petitioner. 28. Mr Biswas further argues that the Govt. acted on the notification by which Central Govt. amendment was adopted and it was submitted in earlier case that the Govt. is willing to pay D.R. to the State Govt. pensioners at Central rate in accordance allowance with the provisions of Rule 55A. It is further argued by Mr Biswas that since the adoption notification creates an obligation on the State Govt. to pay dearness relief to the State Govt. pensioners at Central rate, the State Govt. most arbitrarily and illegally amended and clarified the said notification by the impugned notification dtd. 27.10.98. Mr Biswas further submits that if the Govt. has any intention to pay dearness relief at Central rate to the State Govt. pensioners than there was no need to amend or clarify the adoption notification by the impugned notification dtd. 27.10.93. 29. Learned Advocate General Mr B.R. Bhattacharjee submits that good wishes of the Govt. to pay D.R. at higher rate cannot be treated that the Govt. has accepted the Central Govt. amendment without any modification. It is submitted by Mr Bhattacharjee that Pension is relatable to Entry 42 of the State List (List II) of the VII Schedule of the Constitution of India. The State Govt. did not frame any Pension Rules for the State Govt. pensioners and instead it had adopted CCS (Pension)Rules with certain modification. amendment without any modification. It is submitted by Mr Bhattacharjee that Pension is relatable to Entry 42 of the State List (List II) of the VII Schedule of the Constitution of India. The State Govt. did not frame any Pension Rules for the State Govt. pensioners and instead it had adopted CCS (Pension)Rules with certain modification. The principal rules and any subsequent amendment thereof shall have to be read with modification indicated in the table of the notification dtd. 8.8.78. It is also submitted by Mr Bhattacharjee, learned Advocate General that the question that requires a decision is whether Rule 55A as adopted by the State Govt. after modification in the application to the State Govt. pensioners whether the State Govt. pensioners can claim as of right dearness relief at Central rate as and when such dearness relief is declared by the Central Govt. It is further submitted that from the very beginning the intention of the Govt. is very clear that Rule 55 A must be read in its modified form and for the words "Central Govt.", the word "State Govt." shall have to be read. Learned Advocate General however submits that it was felt necessary by the State Govt. to clarify the notification by which Rule 55A was adopted by the State Govt. by notification dtd. 2.7.97, as the earlier judgment has created some confusion. Learned Advocate General further submits that even earlier judgment was a judgment per incuriam and/or a judgment such silentio, but to honour the Court's judgment, the State Govt. has cleared 125% dearness relief declared by the Central Govt. and after clearing the arrear dearness relief to the State Govt. pensioners, the State Govt. has clarified the position of the Rule 55A and in the said notification, it was made clear that payment already made in pursuance of the direction of the High Court will not be realised from the State Govt. pensioners. It is further argued by the learned Advocate General that in Contempt Petition No. 327 97 decided on 4.11.98, learned Single Judge clearly stated that once this Court directed the respondents by the said judgment and order dtd. 22.4.97 to pay dearness relief to the Pensioners at the rate applicable to the Central Govt. pensioners. It is further argued by the learned Advocate General that in Contempt Petition No. 327 97 decided on 4.11.98, learned Single Judge clearly stated that once this Court directed the respondents by the said judgment and order dtd. 22.4.97 to pay dearness relief to the Pensioners at the rate applicable to the Central Govt. pensioners and the said judgment and order attained finality, the respondents were under legal obligation to pay the same to the Pensioners unless the relevant rules were amended in the meanwhile. Learned Advocate General accordingly submits that learned Single Judge also was of the view that unless the impugned notification is amended, the State is under obligation to pay dearness relief to the State Govt pensioners at Central rate. The said judgment was passed on 4.11.98 and the impugned notification amending/ clarifying the notification dtd. 2.7.92 has been issued by the Govt. on 27.10.98. Learned Advocate General accordingly submits that before passing order by the learned Single Judge in Contempt Case No. 32/97, Govt. has amended and clarified the notification dtd. 2.7.92 and therefore, after this clarification, the State Govt. pensioners cannot claim dearness relief at the Central rate as and when such dearness relief is declared by the Central Govt. There is sufficient force in the submission of learned Advocate General. When a statute creates any right to any person that right will continue till the statute stands or till the statute remains in force. If the statute is amended, then such person cannot claim such right under the amended or abolished statute. In the instant case, the State Govt. pensioners' Association claimed right of Central dearness relief in pursuance of adoption of such rules by the State Govt. and Court has also directed the payment of Central dearness relief to the State Govt. pensioners. Now rules being clarified and amended by substituting in the words "Central Govt" by the words "State Govt.", the State Govt. pensioners cannot claim dearness relief as per clarified amended rules of Rule 55A of the Pension Rules. Regarding competency of the State Govt., learned Advocate General argues that Pension is a subject matter exclusively to be dealt by the State Govt. as it relatable to list 42 of the State List (List II) of VII Schedule of the Constitution. pensioners cannot claim dearness relief as per clarified amended rules of Rule 55A of the Pension Rules. Regarding competency of the State Govt., learned Advocate General argues that Pension is a subject matter exclusively to be dealt by the State Govt. as it relatable to list 42 of the State List (List II) of VII Schedule of the Constitution. It is also submitted that under Art. 162 of the Constitution, executive power of the State extends to the matters with respect of which the Legislature of the State has power to make laws. The CCS (Pension)Rules was adopted by the State Govt. in exercise of its power under Art. 309 of the Constitution and the impugned notification was also issued in exercise of the power conferred on it under Article 309 of the Constitution. It is true that the present clarification issued on 27.10.98 gives effect from the date of adoption of original notification dtd. 2.7.92, but it has been made clear that payments already made to the State Govt. pensioners as per earlier judgment shall not be realised. Therefore, I am of the view that no right exist to the State Govt. pensioners to claim dearness relief at the Central rate as and when such dearness relief is declared by the Central Govt. There is no illegality in the amended/clarified impugned notification dated. 27.10.98. Further, the learned Single Judge in Contempt Petn. No. 32/97 by his judgment and order dtd. 4.11.98 has clearly stated that the State is bound to pay dearness relief to the State Govt. pensioners if unless in the meanwhile the rules are amended by the State Govt. Before the aforesaid judgment in the contempt petition, the State Govt. has amended/clarified the impugned notification. Therefore, I do not find any illegality in the impugned notification and the State Govt has power to issue such amendment/notification in exercise of its power under Article 309 of the Constitution. 30. As regards the Contempt Petition No. 17/99, I am of the view that by clarification/amendment of the notification dtd. 2.7.92, Annexure-3 by the impugned notification dated. 27.10.98, I am of the view that a legal disability has been created for implementing the earlier judgment. 30. As regards the Contempt Petition No. 17/99, I am of the view that by clarification/amendment of the notification dtd. 2.7.92, Annexure-3 by the impugned notification dated. 27.10.98, I am of the view that a legal disability has been created for implementing the earlier judgment. Further, I am of the view that according to the judgment passed in WP(C) No. 62/00 the State Govt pensioners do not acquire any right to claim dearness relief at Central rate as and when such dearness relief is declared by the Central Govt. Pension is exclusively a subject matter of State Govt. and the State Govt. having regard to its financial position may declare rise of dearness relief and when such dearness relief is declared by the State Govt. then only the State Govt. pensioners acquire right to get dearness relief at the rate declared by the State Govt. After modification/clarification of the notification adopting Rule 55A of the Pension Rules I am clearly of the opinion that no right exists after such amendment/ clarification of Rule 55A to the State Govt. pensioner to claim dearness relief at Central rate as and when such dearness relief is declared by the Central Govt. and, therefore, I am of the view that the respondents did not violate any order of this Court and in fact the respondents are under legal disability to implement the direction passed by this Court in earlier judgment. After amendment and clarification by the impugned notification the right of the Pensioners have extinguished to claim dearness relief at Central rate in pursuance of Rule 55 A as amended by the Central Govt. The State Govt. pensioners after impugned notification can claim dearness relief only at such rate as may be declared by the State Govt. from time to time. This is the settled position of law. Therefore, I am of the view that there is no violation on the part of the respondents for non-implementation of the earlier judgment. The matter has now been clarified in judgment of WP(C) No. 627 00. It cannot be said that the respondents are liable to pay the dearness relief at Central rate to the State Govt. pensioners. There is no violation by the respondents and therefore, I do not find any merit in the contempt petition. 31. Mr Biswas, learned counsel for the petitioner argues that the impugned notification dtd. It cannot be said that the respondents are liable to pay the dearness relief at Central rate to the State Govt. pensioners. There is no violation by the respondents and therefore, I do not find any merit in the contempt petition. 31. Mr Biswas, learned counsel for the petitioner argues that the impugned notification dtd. 27.10.98 has virtually taken away the rights of the State Govt. pensioners to get dearness relief at Central rate in pursuance of the judgment dtd. 22.4.97 in Civil Rule No. 259/95. Mr Biswas further argues that such amendment with retrospective effect is unconstitutional and, therefore invalid. In support of his contention, Mr Biswas has referred the following decisions of the Apex Court, namely AIR 1967 SC 1264 (LN. Saxena V. State of MP), AIR 1978 SC803 (MM Pathak-Vs-Union of India), AIR 1987 SCI 676 (P.D. Agarwal- Vs-State of UP), AIR 1987 SC 415 (T.R. Kapur-Vs-State of Haryana), AIR 1984 SC161 (State of Gujarat- Vs-Raman Lal Keshav Lal), AIR 1998 SC 2267 (T.N. Teachers Association -Vs-Association of Heads of Govt. (B. Wing) H & HSS), AIR 1995 SC 1655 (G.C. Kanungo-Vs-State of Orissa), 1994 Supp (3) SCC 451 (Uday Pratap Singh-Vs-State of Bihar), (1994) 5 SCC 450 (Union of India-Vs-Tushar Ran/an Mohanty). I have gone through the aforesaid judgment. The principles laid down by the Apex Court in the aforesaid judgments are binding on this Court. In the aforesaid judgment the Apex Court has struck down the executive instructions by which attempt has been made by the Govt. to take away the right which an employee has acquired under the statute. The second batch of cases is regarding retrospective amendment by the State Govt. which are contrary to the provisions of the Art. 309 and Art. 14 of the Constitution. After going through the aforesaid decisions of the Apex Court, I am clearly of the opinion that in the fact and circumstances of those cases, the principle laid down by the Apex Court in the aforesaid cases cannot apply in the present case, though by the impugned notification Rule 55A has been amended by way of clarification with retrospective effect and at the same time, the dearness relief already paid to the State Govt. pensioners have been protected. pensioners have been protected. It has been clearly indicated in the said impugned notification that payment already made in pursuance of the decision of this Court passed in Civil Rule No. 259/95 will not be realised from the State Govt. pensioners. After complying with the direction of the Court in the earlier case, the State Govt. has paid 42% dearness relief in two installments and after payment of arrear dearness relief as directed by the Court, the Govt. has come up with the clarification of the amendment of Rule 55 A of the Tripura Govt. Pension Rules. Therefore, it is clear that evince if Rule 55A was amended with retrospective effect from the date of adoption in 1992, the modification made by the impugned notification dtd. 27.10.98 has not taken away any right accrued to the State Govt. pensioners. It is submitted at Bar that the State Govt. has not only cleared the arrear dearness relief to the State Govt. pensioners, but even after payment of 42%x dearness relief as directed by the Court, the Govt. has granted further dearness relief to the State Govt. pensioners. In Contempt Petition No. 32/97 decided on 4.11.98, the learned Single Judge has clearly stated that the State Govt. is under obligation to pay dearness relief to the State Govt. pensioners at Central rate if in the meantime the relevant rules have not amended. Before the date of judgment on 4.11.98, the impugned notification amending/clarifying the Rule 55A has been issued by the State Govt. by the impugned notification dtd. 27.10.98. Therefore, the aforesaid observation of the learned Single Judge has also been upheld by the Division Bench in appeal. The learned Single Judge also recognised that if the relevant rules are amended, then there may not be any obligation on the part of the State Govt. to pay dearness relief at Central rate to the State Govt. pensioners. Accordingly, after amendment of Rule 55A by notification dtd. 27.10.98 it has been made clear that the State Govt. pensioners shall get dearness relief at such rate as the State Govt. may decide from time to time. Therefore, I am of the view that after the impugned notification dtd 27.10.98, the State Govt. pensioners cannot claim dearness relief at Central Govt. rate whenever such dearness relief is declared by the Central Govt. I have already discussed about the validity of impugned notification. may decide from time to time. Therefore, I am of the view that after the impugned notification dtd 27.10.98, the State Govt. pensioners cannot claim dearness relief at Central Govt. rate whenever such dearness relief is declared by the Central Govt. I have already discussed about the validity of impugned notification. It is within the power of the executive to amend the law and if such amendment is not unconstitutional, it must be held to be valid. The impugned notification is not contrary to any provision of the Constitution or any statute and therefore, the impugned notification is declared as valid one. 32. After hearing the learned counsel of both the parties and after going through the papers and documents as placed in the case records, I am clearly of the opinion that there is no merit in WP(C) No. 62/00 and accordingly, it is dismissed. There is no violation by the respondent and accordingly the Contempt Case No. 17/99 is dropped and closed. I make no order as to costs.