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2016 DIGILAW 419 (AP)

Union of India v. P. S. R. Kumar Sinha

2016-08-04

ANIS, V.RAMASUBRAMANIAN

body2016
Judgment : V. Ramasubramanian, J. 1. The Union of India, the Indian Council of Agricultural Research and the Central Institute for Research on Cotton Technology have come up with the present application seeking a review of the order passed by a Bench of this Court on 08-02-2006 in a writ petition W.P.No.17900 of 2005, dismissing the writ petition and confirming the order of the Central Administrative Tribunal. 2. Heard Mr. V.R.N. Prashanth, learned Standing Counsel for the petitioners and Mr. Siva, learned counsel appearing for the respondents. 3. The 1st respondent herein retired from the Central Institute of Fisheries Education as a Senior Scientist (Selection Grade) on 31-12-1995. The 2nd respondent retired from the Directorate of Rice Research Institute on 31-12-1995 as a Senior Scientist (Selection Grade). 4. Accepting the recommendations of the 5th Central Pay Commission, the Government of India ordered the revision of pay scales of its employees with effect from 01-01-1996. Since the Indian Council of Agricultural Research, is an independent organisation, to which the revision of pay scales by the Central Government would not apply automatically, separate orders were passed on 27-02-1999 by the Indian Council of Agricultural Research adopting the revised scales of pay to persons working in the various divisions of the institute. 5. As per the said order, the scale of pay of the post of Senior Scientist/Scientist (Selection Grade) was revised from Rs.3700-5700 to Rs.12000-18300. 6. After the implementation of the revised scales of pay for the employees of the Central Government with effect from 01-01-1996, a large number of representations were made to the Government of India by persons who retired on or before 31-12-1995, seeking the extension of some benefit to them. Accepting those representations, the Department of Pension and Pensioners Welfare, Ministry of Personnel, Public Grievances and Pensions of the Government of India issued a Circular in F.No.45/10/98-P&PW(A), dated 17-12-1998. By the said Circular, it was directed that with effect from 01-01-1996, the pension of all pensioners, irrespective of the date of retirement, shall not be less than 50% of the minimum pay in the revised scale of pay introduced with effect from 01-01-1996, of the post last held by the pensioner. 7. By the said Circular, it was directed that with effect from 01-01-1996, the pension of all pensioners, irrespective of the date of retirement, shall not be less than 50% of the minimum pay in the revised scale of pay introduced with effect from 01-01-1996, of the post last held by the pensioner. 7. Therefore, claiming the benefit of the revision as ordered by the Government of India with effect from 01-01-1996 and adopted by the Indian Council of Agricultural Research by its order dated 27-02-1999, the respondents herein filed an application in O.A.No.384 of 2001 on the file of the Central Administrative Tribunal at Hyderabad. Both the respondents herein claimed in their application that while the scale of pay of the post of Senior Scientist/ Scientist (Selection Grade) was revised from Rs.3700-5700 to Rs.12000-18300, Note I of the office order dated 27-02-1999 directed the fixation of the pay of Senior Scientist/Scientist (Selection Grade) with five years of service as on 01-01-1996 at Rs.14,940/- in the revised scale of pay of Rs.12000-18300. Therefore, the respondents claimed in their original application before the Tribunal that their pensionary benefits should be fixed by taking the pay as Rs.14,940/- as on 01-01-1996, as both of them had completed five years of service by 31-12-1995. 8. The Indian Council of Agricultural Research filed a reply before the Tribunal contending that the extension of the benefit of Note I of the office order dated 27-02-1999, for those who had retired from service before 01-01-1996, was not possible. Their contention was that Note I to the office order dated 27-02-1999 was applicable only to employees serving as on 01-01-1996. 9. By an order dated 16-9-2004, the Central Administrative Tribunal allowed the application of the respondents herein, on the ground that the benefit of the office order dated 27-02-1999 extending the implementation of the recommendations of the 5th Central Pay Commission, would be available even to the retired employees, in view of the express language of the Government of India’s Circular dated 17-12-1998, extending the benefit to all the pensioners irrespective of their date of retirement. 10. Aggrieved by the order of the Tribunal, the petitioners herein filed a writ petition in W.P.No.17900 of 2005. The said writ petition was dismissed by a Bench of this Court by an order dated 08-02-2006. 10. Aggrieved by the order of the Tribunal, the petitioners herein filed a writ petition in W.P.No.17900 of 2005. The said writ petition was dismissed by a Bench of this Court by an order dated 08-02-2006. The matter was carried in appeal by the petitioners herein to the Supreme Court in Civil Appeal No.5613 of 2009. 11. When the civil appeal came up for hearing, the Union of India and the Indian Council of Agricultural Research, seems to have contended that the question of availability of the benefit of Note I of the Circular dated 27-02-1999 was not considered by the High Court at all. Holding that such a ground taken by the Indian Council of Agricultural Research might perhaps be available in an application for review, the Supreme Court by its order dated 19-7-2013 allowed the Indian Council of Agricultural Research to withdraw their appeal with liberty to file a review petition. With the liberty so granted, the petitioners have come up with the above review application. 12. The simple case of the petitioners in this review application is that the benefit of the revision of pay scales, implemented with effect from 01-01-1996 for the serving employees of the Central Government, alone was extended to the pensioners by the Government of India’s Circular dated 17-12-1998. But the benefit of Note I was applicable only for the employees serving as on 01-01-1996 and that therefore the pay of an employee who retired before 01-01-1996 cannot be notionally fixed at a higher stage in the revised scale of pay for the purpose of calculation of pensionary benefits. 13. The response of Mr. Siva, learned counsel for the respondents, to this review application is actually two-fold. The first is that the pensionary benefits are liable to be calculated, by simply addressing oneself to the issue as to what would have been the pay that the pensioner would have been entitled to, had he been in service on 01-01-1996. If the respondents were entitled as per the office order dated 27-02-1999 to a pay of Rs.14,940/-, in the scale of Rs.12000-18300, had they continued in service on 01-01-1996, their pensionary benefits will have to be taken at the rate of 50% of the same, as per the Government of India’s Circular dated 17-12-1998. 14. If the respondents were entitled as per the office order dated 27-02-1999 to a pay of Rs.14,940/-, in the scale of Rs.12000-18300, had they continued in service on 01-01-1996, their pensionary benefits will have to be taken at the rate of 50% of the same, as per the Government of India’s Circular dated 17-12-1998. 14. The second response of the learned counsel for the respondents is that in any case the parameters of Order XLVII, Rule 1 C.P.C are not satisfied in this case and that therefore the review will have to be dismissed. The liberty granted by the Supreme Court to the petitioners to file a review, according to the learned counsel for the respondents, cannot be treated as a shield to ward off the parameters of Order XLVII, Rule 1 C.P.C. Therefore, the learned counsel for the respondents contend that the review application deserves to be dismissed. 15. We have carefully considered the above submissions. 16. Let us first take a look at the office order dated 27-02-1999. As per the said office order issued by the Indian Council of Agricultural Research, the scale of pay of Scientists (Selection Grade)/Senior Scientists whose scale of pay was Rs.3700-5700, stood revised to Rs.12000-18300 with effect from 01-01-1996. Note I under the table to the office order dated 27-02-1999 reads as follows: “Note I: The pay of Scientists (Selection Grade)/Sr. Scientists with five years service as on 1.1.96 will be fixed at the minimum of Rs.14,940/-.” 17. The office order dated 27-02-1999 issued by the Indian Council of Agricultural Research applies per se only to serving employees. The entire office order does not make a reference to a retired employee. It is common ground that a separate office order dated 27-02-1999 was necessitated on account of the fact that the implementation of the recommendations of the 5th Central Pay Commission for the employees of the Central Government, did not automatically inure to the benefit of the employees of Indian Council of Agricultural Research. Therefore, even the Government of India’s Circular dated 17-12-1998 may not per se be applicable to the retired pensioners of Indian Council of Agricultural Research, unless they had been adopted by the Indian Council of Agricultural Research. Therefore, even the Government of India’s Circular dated 17-12-1998 may not per se be applicable to the retired pensioners of Indian Council of Agricultural Research, unless they had been adopted by the Indian Council of Agricultural Research. There is nothing on record to show that the Circular dated 17-12-1998 issued by the Department of Pension and Pensioners Welfare of the Government of India was also adopted by the Indian Council of Agricultural Research. 18. But, for the present, we shall take it that the benefit of the Government of India’s Circular dated 17-12-1998 is also available to the retired pensioners of Indian Council of Agricultural Research. We are doing so in view of the fact that the Indian Council of Agricultural Research has no objection to fix the pension of the respondents by taking their pay at Rs.12,000/-, in the revised scale of Rs.12000-18300. The objection of the petitioners is only to the fixation of the pay at Rs.14,940/- as on 01-01-1996 for the purpose of calculation of the pensionary benefits of the respondents. 19. Let us now take a look at the language of the Government of India’s Circular dated 17-12-1998. The relevant portion of para 1 of the said Circular reads as follows: “1. … … … The President is now pleased to decide that w.e.f. 1.1.1996, pension of all pensioners irrespective of their date of retirement shall not be less than 50% of the minimum pay in the revised scale of pay introduced w.e.f. 1.1.1996 of the post last held by the petitioner. … … …” 20. A careful look at what is extracted above would show that the only benefit extended by the Government of India to the retired pensioners was the calculation of pensionary benefits at a minimum of 50% of the minimum pay in the revised scale of the post last held by the pensioner. The Government of India’s Circular does not say “50% of the minimum pay in the revised scale of pay that the pensioner would have been entitled to, had he continued in service”. In other words, the Government of India’s Circular dated 17-12-1998 does not create a fiction requiring the employer to first find out what pay a pensioner would have drawn, had he continued in service as on 01-01-1996, for the purpose of fixation of pension. 21. In other words, the Government of India’s Circular dated 17-12-1998 does not create a fiction requiring the employer to first find out what pay a pensioner would have drawn, had he continued in service as on 01-01-1996, for the purpose of fixation of pension. 21. Interestingly Note I of the office order dated 27-01-1999 of the Indian Council of Agricultural Research also does not create any deeming fiction. But for the existence of Note I, all Scientists (Selection Grade) and Senior Scientists, who were drawing the pay at any stage of the scale of pay of Rs.3700-8700, would have been fixed only at the bottom most stage, namely Rs.12,000/- in the revised scale of pay of Rs.12000-18300. Since a merger takes place at the time of every revision of pay scale, of all categories of employees who were drawing pay at different stages in the pre-existing scale of pay, an anomaly would arise every time when a revision takes place. Note I was intended to remove this anomaly, only to a limited extent. 22. But insofar as the pensioners are concerned, there was no question of any anomaly. Therefore, all that the Government of India’s Circular dated 17-12-1998 says is that the pension of all pensioners irrespective of their date of retirement shall not be less than 50% of the minimum pay in the revised scale of pay. The Government of India’s Circular dated 17-12-1998 does not seek to fix the pay of a pensioner notionally as on 01-01-1996, by asking a question as to what pay he would have drawn had he continued in service on 01-01-1996. The mandate of the Circular dated 17-12-1998 is merely to fix the pension at not less than 50% of minimum pay in the revised scale of pay. The words “minimum pay in the revised scale of pay” would signify only Rs.12,000/- in the scale of pay of Rs.12000-18300. The pay of Rs.14,940/- is not the “minimum pay in the revised scale of pay”. The pay of Rs.14,940/- is the stage at which the pay of a person who had completed five years of service as on 01-01-1996 should be fixed in the scale of Rs.12000-18300. Therefore, the review petitioners are fully justified in their grievance that Note I to the office order dated 27-02-1999 had been thoroughly misunderstood as altering the minimum pay in the revised scale of pay. Therefore, the review petitioners are fully justified in their grievance that Note I to the office order dated 27-02-1999 had been thoroughly misunderstood as altering the minimum pay in the revised scale of pay. There has been no application of mind on the part of the Tribunal to Note I in the office order dated 27-02-1999 and this is the reason as to why the Apex Court appears to have granted liberty to the petitioners to come up with the review application. Therefore, we are of the considered view that the respondents were not entitled, to the benefit of Note I of the office order dated 27-02-1999, in view of the clear mandate and express language used in the Government of India’s Circular dated 17-12-1998. 23. That takes us to the next question as to whether the case is one for review or not. It is contended forcefully by Mr. Siva, learned counsel for the respondents that the very claim of the respondents in their application before the Central Administrative Tribunal was for the grant of revised pension by taking their pay as Rs.14,940/- in the revised scales of pay and that the Tribunal had passed an order only after applying Note I of the office order dated 27-02-1999 to their case. This order of the Tribunal was upheld by this Court and hence the case would not fall under the category of error apparent on the face of the record. Hence, the learned counsel contended that the case does not meet the requirements of Order XLVII, Rule 1 C.P.C., merely because the Supreme Court granted liberty. 24. In order to test the above contention, it is necessary to have a look at the order passed by the Supreme Court on 19-7-2013 in Civil Appeal No.5613 of 2009. Paragraphs 3 to 5 (unnumbered) of the order of the Supreme Court reads as follows: “Learned counsel for the appellant argued at length. However the net result remains that while deciding the matter the High Court has given the benefit of Note I of the circular dated 27.2.1999, that the pay of Scientists (Selection Grade)/Sr. Scientists with five years service as on 1.1.96 will be fixed at the minimum of Rs.14,940/-, however, no reference has been made to the said note by the High Court and thus, matter has not been decided in correct perspective. Scientists with five years service as on 1.1.96 will be fixed at the minimum of Rs.14,940/-, however, no reference has been made to the said note by the High Court and thus, matter has not been decided in correct perspective. It is submitted that there is apparent error on the face of it. In such a fact situation, the appellant ought to have filed a review petition before the High Court. In view of the above, the appellant is permitted to withdraw the appeal with liberty to file the review petition before the High Court limited to the contention of application of the said Note I.” 25. It appears from the first portion of the order of the Supreme Court extracted above, that the Supreme Court was convinced of the fact that this Court had not decided the case in the correct perspective. The Supreme Court had not, as a matter of routine, granted liberty to the applicants to withdraw the civil appeal and file a review before this Court. The Supreme Court had granted liberty to the petitioners, only after recording a finding that there had been no reference to Note I of the office order dated 27-02-1999 and that as a consequence, the case had not been decided in the proper perspective. 26. To put it differently, the Apex Court itself appears to have tested the eligibility of the petitioners to maintain a review. Therefore, it may not be open to the respondents, after being a party to the above order of the Supreme Court, to question the maintainability of the review application. 27. In any case, the question of applicability of Note I was actually not tested by this Court while dismissing the writ petition. As can be seen from the discussion from paragraphs 6.01 to 6.19 of the order of this court, the focus of this Court was only on the extension of the benefits of the revised scales of pay to the pensioners, under the Government of India’s Circular dated 17-12-1998. Therefore, the decision of this Court rendered by presuming the automatic application of Note I to the case of the respondents, would certainly fall under the category of error apparent on the face of the record or at least under the category of “any other sufficient reason”. 28. Therefore, the decision of this Court rendered by presuming the automatic application of Note I to the case of the respondents, would certainly fall under the category of error apparent on the face of the record or at least under the category of “any other sufficient reason”. 28. Therefore, the application for review is allowed, the order passed in W.P.No.17900 of 2005 dated 08-02-2006 is recalled, the writ petition is allowed and the order of the Tribunal in O.A.No.384 of 2001 is set aside. It is made clear that the respondents will be entitled to the fixation of pensionary benefits with effect from 01-01-1996, by taking their pay as Rs.12,000/- in the revised scale of pay of Rs.12000-18300. If this has not been calculated and paid to the respondents so far, the petitioners should do that within a period of two months from the date of receipt of a copy of this order. The miscellaneous petitions, if any, pending in these review application shall stand closed.