New section 268A was not required to tackle departmental appeal on unchallenged/ accepted issues in view of Supreme Courts judgment in the case of B.J. AKKARA, COL. (RETD.) V. GOVERNMENT OF INDIA

[DEV KUMAR KOTHARI]

Summary:

The Finance Act, 2008 has inserted a new section 268A in the Income-tax Act, 1961 to empower the revenue to file an appeal even if on the same issue, in the case of assessee or some other assessee the revenue did not file an appeal due to tax implication being below prescribed limit. Impact of the amendment is that non filing of appeal, due to lower revenue impact shall not be considered as if the revenue has accepted earlier order or judgment which has not been appealed against.

There was no need to insert a provision  because in view of another decision of the Supreme Court an appeal can be filed in case of a subsequent decision if the appeal was not filed against an earlier decision due to just cause or lower tax implication.

It is an economic and administrative decision not to   file an appeal  based on  estimated costs, time and attention required in litigation, probability of winning, likely benefits and repetitiveness of issues etc.

Non filing of appeal on such economic considerations  can be regarded as a 'just cause', in such cases, and therefore, the revenue can file appeal on same issue, even if appeal was not filed in any other case due to lower revenue effect. The courts will definitely admit appeal in other cases where revenue effect is larger because in lower effect cases, the revenue has a just and reasonable cause for not filing an appeal. If a notice of not filing of appeal due to lower amount involved is given to opposite party, then such party cannot plead  that earlier order has attained finality and binding nature for other years or in case of other assesses also.  Therefore, there was no need to make provisions of section 268A particularly in view of judgment of the Supreme Court in the case of B.J.Akkara and also in the case of Berger Paints.

In case of B.J. AKKARA, COL. (RETD.) V. GOVERNMENT OF INDIA the Supreme Court considered effect of non filing of appeal due to lower revenue repercussion. And considered that a particular judgment of High Court may not be challenged by State where financial repercussions are negligible or where appeal is barred by limitation - It may also not be challenged due to negligence or oversight of dealing officers or on account of wrong legal advice, or on account of non-comprehension of seriousness or magnitude of issue involved - However, when similar matters subsequently crop up and magnitude of financial implications is realized, State is not prevented or barred from challenging subsequent decisions or resisting subsequent writ petitions, even though judgment in a case involving similar issue was allowed to reach finality in case of others - Of course, position would be viewed differently, if petitioners plead and prove that State had adopted a 'pick and choose' method only to exclude petitioners on account of mala fides or ulterior motives.

Regarding interpretation of circulars the court held that when language used in a Circular is clear and unambiguous and intention is also clear, it is not permissible to add words to Circular to satisfy what petitioners consider to be just and reasonable.

In case of Berger Paint also the Supreme Court held that on admittedly unchallenged issues, when the law is a central legislation which require to be uniformly interpreted all over India, the revenue cannot file appeal in another case without  a just cause.

New section 268A reads as follows:

Filing of appeal or application for reference by income-tax authority.      

"268A. (1) The Board may, from time to time, issue orders, instructions or directions to other income-tax authorities, fixing such monetary limits as it may deem fit, for the purpose of regulating filing of appeal or application for reference by any income-tax authority under the provisions of this Chapter.

(2) Where, in pursuance of the orders, instructions or directions issued under sub-section (1), an income-tax authority has not filed any appeal or application for reference on any issue in the case of an assessee for any assessment year, it shall not preclude such authority from filing an appeal or application for reference on the same issue in the case of

(a) the same assessee for any other assessment year; or

(b) any other assessee for the same or any other assessment year.

(3) Notwithstanding that no appeal or application for reference has been filed by an income-tax authority pursuant to the orders or instructions or directions issued under sub-section (1), it shall not be lawful for an assessee, being a party in any appeal or reference, to contend that the income-tax authority has acquiesced in the decision on the disputed issue by not filing an appeal or application for reference in any case.

(4) The Appellate Tribunal or Court, hearing such appeal or reference, shall have regard to the orders, instructions or directions issued under sub-section (1) and the circumstances under which such appeal or application for reference was filed or not filed in respect of any case.

(5) Every order, instruction or direction which has been issued by the Board fixing monetary limits for filing an appeal or application for reference shall be deemed to have been issued under sub-section (1) and the provisions of sub-sections (2), (3) and (4) shall apply accordingly.".

The section is as per Clause 47 of the Finance Bill, 2008  and is  intended to take care of situations  arising due to non-filing of appeal by revenue in any case for the reason of lower revenue impact and then filing appeal on similar issue, in other year or other case where revenue impact is higher than the prescribed minimum amount for filing appeal. Merely not filing an appeal due to lower revenue effect does not mean that the order not appealed against has been accepted by the party which has been adversely affected. Therefore, in view of author there is just and reasonable cause for not filing appeal in a case and on that ground alone , further appeals on similar issues  can be filed and admitted by courts where revenue effect is higher.

An Analysis of the new section:

As per language used in the  section, it will  apply in relation to the present provisions relating to appeal before Tribunal, High Court and Supreme Court and  also to the old provisions when reference was made on question of law to the High Court and the Supreme Court for opinion. The provisions for reference were on statute book till 30^th September, 1998 and the provision for appeals came in effect from lst October, 1998.

Covering references u/s 256 appears of no use:

The new section will apply retrospectively with effect from lst day of April, 1999 that is only after the provisions of appeal came in the Act in lieu of reference applications. Therefore, it appears that reference to an application for reference appears to be of no use and avail to the revenue.

Retrospective effect was not required:

 This provision is a procedural provision and therefore, giving retrospective effect appears to be meaningless because the tribunal or the court while considering any matter, which may relate to any earlier year on or after commencement of section 268A will have to consider the new provision.  Suppose an appeal is filed or a reference is made in relation to assessment year 1995-96 and the matter comes before the tribunal / after insertion of section 268A, these provisions will have to be considered, although as per proposal, the new provision takes retrospective effect only from 1^st April, 1999.

Board already had power to issue directions so sub-section (1) was not required:

The Board have  such powers to make rules u/s 295 and have also power to issue instructions to subordinate authorities u/s 119 of the Act and therefore, it appears that the sub-section (1) is superficial and is likely to create confusions, chaos and litigation, empowering filing of appeal in other year/ cases

Sub-section (2) prescribes that non-filing of an appeal in pursuance of instructions of the Board in any year in case of any assessment will not preclude the authority from filing an appeal in any other year in the case of same assessee and in case of any other assessee for any assessment year and therefore, if in one year, appeal has not been filed before the Tribunal or the High Court due to  revenue effect being less than prescribed, the assessing officer / Commissioner will be entitled to file an appeal in any other year in case of the same assessee and in any year in case of any other assessee  before the Tribunal / High Court as the case may be. 

Right to contend should not be taken away:

Sub-section (3) of the  section  take away right of the assessee to contend that non-filing of an appeal in any other year  in his case or in any other case has resulted into acceptance by the revenue of the order passed by the appellate authority or court earlier.  This provision appears to be onslaught on the freedom and rights to  speak,  legal remedies, protect property, and also to carry business and or profession and also right of taxpayer to raise any contention to seek justice and therefore, sub-section (3) of the proposed section 268A appears to be ultra vires the Indian Constitution.  The assessee as a taxpayer has all rights to point out to the Tribunal or the court what has happened in any other year while appeal has been decided in favor of the taxpayer and the revenue has not challenged the same.

Monetary limit for filing of appeals and difference of opinion amongst courts:

With the purpose of  avoiding  litigation on matters involving less than prescribed amount of revenue top administrative authority of any organization  like the Central Board of Direct Taxes (CBDT)   or in case of a company its Board of Directors or managing Director  can decide  and issues direction from time to time fixing or revising monetary limit of revenue impact for not filing an appeal before the Tribunal, High Court or the Supreme Court. In spite of such policy decisions  we find that many times, appeals are filed before the Tribunal or the High Court and some benches of Tribunal or court admit the appeal and some rejects the same being contrary to the order of Board. Therefore, there is difference of opinion amongst courts as to whether such appeal should be admitted or not. Liberal view seeking purpose is that in such cases revenue should not file appeal when revenue impact is lesser than prescribed and in case appeal is filed it should not be admitted. On this issue the following important judgments may be referred to:

Rani Paliwal V. Commissioner of Income tax 2003 -TMI - 11104 - (PUNJAB AND HARYANA High Court) In this case Tribunal admitted an appeal filed by the revenue though the revenue involved was less than prescribed limit in the Board's Circular No.F/279/126/98-ITJ dated March 27, 2000. the assessee appealed against admission of such appeal by the revenue before the high court. The High Court held that the circular was only an instruction issued to the income-tax authorities not to file appeals where the tax effect is less than Rs.1,00,000.  The Tribunal was not bound by any such instruction and once the Department filed an appeal, the Tribunal was bound to decide the same on merits.  No substantial question of law arose from the admission of the appeal.

Jugal Kishore Arora v Deputy Commissioner of Income-tax 2004 -TMI - 11002 - (ALLAHABAD High Court)

In this case also the high court took view that right to file an appeal is a statutory right and it cannot be taken away by executive instructions like boards circular. And therefore, the tribunal was justified in admitting the appeal though revenue effect was less than Rs. one lakh.

In case of CIT v. Matrix Intel P. Ltd. 2006 -TMI - 13593 - (MADRAS High Court), the Hon'ble High Court of Madras held that the appeal was filed prior to issue of circular fixing monetary limit for appeal and therefore, Tribunal should not have dismissed the appeal in view of circular and therefore, the High Court directed the Tribunal to hear case on merit.  The High Court in this regard relied on judgment of the same High Court in case of CIT v. Kodananad Tea Estates Co. 2004 -TMI - 10379 - (MADRAS High Court).

Similarly in CIT V Sivakumar 2006 -TMI - 13606 - (MADRAS High Court) the Court following its earlier judgment in Kodanand Tea (Supra.) held that Circular No. 1979 dated  27.03.2000barring appeal where tax effect was less than monetary limit of Rs. one lakh,was not applicable to the assessment year 1992-93, i.e. the assessment year in question. 

The Bombay High Court in case of CIT v. Camco Colour Co.[2002] 254 ITR 565 (Bom), CIT v. Pitthwa Engg. Works 2005 -TMI - 10498 - (BOMBAY High Court) and Commissioner of Income-tax v. Zoeb Y. Topiwala 2006 -TMI - 9717 - (BOMBAY High Court) has consistently held that dismissal of appeal of revenue on the ground that the Revenue involvement in the appeal is less than the monetary limit prescribed by the Board is justified because this is in consonance with the policy decision taken by the Board not to indulge any litigations on petty issues and or petty matters.

Commissioner of Income tax v. Pithwa Engg. Works 2005 -TMI - 10498 - (BOMBAY High Court)

In this case revenue filed an appeal when monetary limit prescribed was Rs. one lakh. Subsequently, before hearing of the appeal the limit was raised to Rs. Two lakh. The court held that the new limit is also applicable to old references, which are still undecided. The Department cannot contend that the circular is binding only with respect to the new cases and not with respect to the old referred cases even if the tax is less than Rs.2 lakhs.  The same policy for old matters needs to be adopted by the Department. CIT v. Camco Colour Co. [2002] 254 ITR 565 (Bom) was referred to.

In  Commissioner of Income-tax v. Zoeb Y. Topiwala 2006 -TMI - 9717 - (BOMBAY High Court) also the view taken was that  instructions of the CBDT dated March 27, 2000 reflects the policy decision taken by the Board not to raise questions of law where the tax effect is less than the prescribed in the circular. With a view to reduce litigation before the High Courts and the Supreme Court. The circular is binding on the Revenue. Therefore there was no justification to poceed with the appeal having tax effect less than Rs.7000/- thus the appeal was dismissed.

Revenue authority is not an independent person:

With due respect the author feels that an A.O. or CIT who files an appeal against order of the CIT (A) or ITAT in an official position are not individuals, they do not work in personal capacity. They are sub-ordinate authority to the CBDT. Therefore, consideration by the court, of the issue in the manner that a statutory right to appeal cannot be taken away appears to be wrong.  The circular does not take away such right because the A.O. or CIT are not independent from the Board. The board's decision is an administrative decision for better working of departments  and to save costs, and work in more productive and result oriented manner etc.

In case, the subordinate authority feels that in some cases it is desirable to file an appeal though revenue effect is lower, because higher amount may be involved in similar other cases or in some other years in assesses own case etc. Then proper course would be to obtain permission from Board to file an appeal in such cases. In absence of such permission, the filing of appeal and admitting the appeal and deciding the issue against the assessee nullify the effect of beneficial circulars of the board.

In these case plea that the circular for not filing an appeal by revenue grants a relief to the assessee, and therefore, it should be treated as binding at the hands of authorities involved in filing the appeal, as well as on courts for granting relief to the tax payer in accordance with policy decision of the Board was not taken. On such plea, perhaps the decision of the court could be in favor of the assessee.

Circular waive rigors of further litigation so it is  binding:

When Boards circular instruct lower authorities that appeal should not be filed when revenue impact is less than prescribed limit, the circular is a beneficial circular and in one way it assures that in case revenue impact is less than prescribed, the assessee can rest assured that in such a case appeal will not be filed, the matter is settled, there is no contingency and assessee is saved of litigation costs. Therefore such beneficial circulars must be regarded binding even on courts in as much as a relief is allowed to tax payers.

When appeal is not filed:

In some cases, appeal is not filed because the revenue impact is lower than the prescribed limit and therefore, in some cases it has been contended that once appeal is not filed, the revenue has accepted the order of the CIT (A) or the Tribunal and therefore, on similar issue, appeal in case of assessee or any other assessee should not be filed and even if it is filed., it may be rejected on the ground of settled issue.

In fact in several cases, as discussed later,  the Supreme Court has decided the issue in favor of assessee / or dismissed revenue's appeal based on unchallenged decisions of High Court or Tribunal. However, it appears that in none of them the revenue has contended that appeal was not filed due to less than prescribed amount involved. Had that contention been raised, the author is sure that the court would have considered it a just cause for not filing of appeal , admit the appeal where revenue involved is more and the case is not hit by circular and decide the appeal on merit as per its own point of view and judgment.

Not filing of appeal for lower tax implications:

While deciding an appeal, the assessee takes into consideration the tax implication, repetitiveness of similar issue and the cost of litigation.  Similarly, revenue also considers these aspects and therefore, in many cases due to lower revenue implication, does not filed appeal as per instructions of the CBDT. In such cases, the Assessing Officer or the Commissioner should give a notice to the assessee that due to lesser revenue involved (a) appeal has not be filed, (b) non-filing of the appeal does not mean that the order of lower appellate authority has been accepted and (c) the revenue may file appeal in case in any other year or case the revenue effect is higher than prescribed limit.

Notice to assessee:

Whether an appeal order has been accepted by the revenue or not, can only be presumed by the assessee on the basis of fact whether the revenue has challenged earlier order.  Therefore, unless the revenue has given a notice to the assessee that the appeal has not been filed in view of instructions of the Board due to lower revenue impact how assessee can come to know as to whether an appeal order is accepted or the appeal order is not accepted but appeal is not filed.  In absence of such intimation to the assessee, the assessee will have every right to contend that the earlier order of the appellate authority or court has been accepted, and has attained finality.  Therefore, it is advisable for the revenue to give a copy of the reports and documents through which a decision, not to file an appeal in view of instructions of Board should be the provided to the assessee well-in-time after such decision is taken. In absence of such a notice, the assessee can very well plead finality of un-challenged order and can contend that the same should be followed.

Due regard to instructions:

Sub-section (4)  prescribes that appellate tribunal or court hearing such appeal or reference shall have due regard to the orders / instructions or directions issued under sub-section (1) and the circumstances under which such appeal or application for reference was filed or not filed in respect of any case.

Deeming provision to regularize earlier instructions:

Sub-section (5) lays down that every order, instruction or direction which has been issued by the Board fixing monetary limit for filing of an appeal or application for reference shall be deemed to have been issued under sub-section (1) and the provisions of sub-section 2, 3 and 4 shall apply accordingly.

Such provision is not at all required:

Not filing an appeal due to lower tax effect in any case is a just and reasonable cause for not filing an appeal to avoid costly litigation and to work with result oriented approach. Suppose an assessee has not filed an appeal in one year due to lower impact of tax payable. He can definitely file appeal in any other year to seek justice. Similarly the revenue can also plead that against some order appeal was not filed due to lower revenue impact and therefore, it does not mean that the correctness of the order which was not appealed against is accepted.

Relevant ruling about binding nature of unchallenged orders:

The amendment was proposed to take care of rulings on issue of unchallenged orders. In Berger Paints India Limited Vs. CIT (2004) 266 ITR 99 (SC) = [2008 -TMI - 6139 - SUPREME Court] the Supreme Court held that if the Revenue has not challenged the correctness of the law laid down by any high Court and has accepted it in the case of one assessee, then it is not open to the Revenue to challenge its correctness in the case of other assesses without 'just cause'. In this case the Supreme Court noticed that the Revenue has accepted the judgment of Gujarat High Court in the case of Lakhanpal National Limited Vs. ITO 1986 -TMI - 26384 - (GUJARAT High Court) which was followed by Bombay High Court, Madras High Court and Special Bench of Tribunal, Delhi. It was also noticed that the Department has not challenged the decision of ITAT Special Bench. About the judgment of Bombay and Madras High Courts also the court noted that it appears to have been accepted by the Revenue and have not been challenged before the Supreme Court at all. In as much as this fact was asserted before the Supreme Court by the assessee and it was not challenged in the counter affidavit filed by the Revenue. Therefore, the Supreme Court following its earlier judgment in case of Union of India Vs. Kaumudini Narayan Dalal 2000 -TMI - 40296 - (SUPREME Court), CIT V. Narendra Doshi 2001 -TMI - 6071 - (SUPREME Court) and CIT v. Shivsagar Estate 2002 -TMI - 40337 - (SUPREME Court) held that the Revenue cannot dispute the correctness of the judgment of Gujarat High Court in case of another assessee.

Authors view on these judgments:

In these cases it was not case of the revenue that appeal was not filed due to lower revenue impact. In fact on perusal of all related orders it is clear that in all cases substantial amounts were involved. Therefore, the admitted position was that the order was not challenged and therefore it was accepted by the revenue. Had it been contended and proved that in earlier case appeal was not filed due to lower revenue involved, and the present case involves higher revenue, then the court could have considered the matter on merit and decided the issue without getting influenced by the fact that earlier appeal order in favor of assessee was not challenged by the revenue.

Just cause:

As discussed earlier not filing of an appeal due to lower revenue  implications is an administrative decision based on cost- benefit analysis, administrative considerations, balance of convenience, and with a view to let smaller matters attain finality and do not drag assesses in to litigation for smaller amount. Therefore, the revenue can plead that there was 'just cause' for not filing an appeal, and point out ruling in Berger paints and request tribunals and courts to admit appeal when on similar issue there is larger amount of revenue involved.

In the memorandum explaining the proposal (at page 118 of budget book by Bharat law House) the judgment of the Supreme Court in Berger Paints case is cited, as a main reason for new provision. In the same explanation the expression 'without just cause' also find place while referring to the ruling of the Supreme Court. Therefore, in view of the author, the proposed new section is not required at all as non filing of appeal in an earlier case can be established due to a just cause.

In view of ruling in case of B.J. Akkara the following can be just causes:

(i)  negligence or oversight of dealing officers

(ii)  wrong legal advice,

(iii) non-comprehension of seriousness or magnitude of issue involved

(iv) when later on magnitude of financial implications is realised,

In such circumstances the  state cannot be  prevented or barred from challenging subsequent decisions or resisting subsequent writ petitions.

However, the state or  revenue cannot adopt  a 'pick and choose' method only to exclude petitioners on account of mala fides or ulterior motives.

In view of the above rulings it is clear that there was no need to insert section 268A in the Income-tax Act.

When appeal is not filed by assessee:

In case for any reason like monetary considerations, mistake of authorized representative or complexity of law and play safe approach adopted by the assessee while filing return which is accepted in summary proceedings, resulting into  not claiming or not pressing some claims in a year, or in not filing appeal for small amounts etc. the assessee should give a notice to the assessing authority and / or appellate authority that not pressing such claims by way of appeal or otherwise should not be considered as assesses acceptance of the order or not allowability of claim and that the assessee reserves right to claim such relief in other years and also to file appeal with a petition to condone delay in filing of appeal, in case the department consider the matter as unchallenged hence  settled and apply the same in future. For a detailed discussion and a sample draft of such notice readers may refer to CAPJ (2006) Vol 15  pages 330-33 discussed in early part of this write-up.

___________________________________

 

[In the Supreme Court of India]

B.J. AKKARA, COL. (RETD.) V. GOVERNMENT OF INDIA

Shri G.P. Mathur and Shri R.V. Raveendran, JJ.

Transferred Case (Civil) No. 72 of 2004 with T.C. (Civil) Nos. 74, 75-128, 129-140 and 141 of 2004, 2, 14, 15, 16, 17, 18, 28 and 43 of 2005, decided on 10-10-2006

Judgement per Shri R.V. Raveendran, J

1. The petitioners in all these petitioners, served as Medical, Dental and Veterinary officers in the Army Medical Corps (AMC), Army Dental Corps (ADC) and Veterinary Corps ('RVC') controlled by the Ministry of Defence (for short, 'Ministry'). All of them retired prior to 1-1-1996. These petitions involve a common question relating to calculation of their pension.

2. Defence Ministry Circular, dated 31-12-1965 barred private practice (which was a traditionally enjoyed privilege) by AMC officers with effect from 1-1-1996 and conveyed the sanction of the President to the grant of a Non-Practising Allowance ('NPA' for short) to all AMC officers irrespective of the rank, with a stipulation that such NPA shall be treated as Pay for all purposes. Ministry Circular, dated 2-11-1987 clarified that NPA will be treated as 'pay' for all service matters, and will be taken into account for computing dearness allowance and other allowances as well as for calculation of retirement benefits. It also prescribed the rate of NPA for AMC and ADC Officers as Rs. 600 for basic pay below Rs. 3000, Rs. 800 for basic pay between Rs. 3000 and Rs. 3700 and Rs. 900 for basic pay of Rs. 3700 and above. The NPA was revised as 25% of basic pay and Rank pay, with effect from
1-1-1996 (subject to the condition that pay plus NPA does not exceed Rs. 29,500). G.O. No. 2/S/98, issued by the Ministry, which implemented the Fifth Central Pay Commission recommendations in regard to revision of pay scales, gave the benefit of the revised NPA to all AMC, ADC and RVC officers who were receiving NPA.

3. The recommendations of Fourth Central Pay Commission in regard to pensionary benefits for Armed Force Officers retiring on or after 1-1-1986 were implemented by Ministry Circular, dated 30-10-1987. The said Circular provided that retiring pension of all commissioned officers of the three services, shall be calculated at 50 per cent of the reckonable emoluments, for a qualifying service of 33 years (to be reduced proportionately for lesser qualifying service). It defined 'reckonable emoluments' for purposes of retiring/service pension as average of pay, NPA and rank pay, if any, drawn by the officer during the last 10 months of his service. It defined the term 'pay' as basic pay in the revised pay scales.

4. The recommendations of the Fifth Central Pay Commission were accepted and accorded sanction by the President on 24-11-1997. Consequently, the Ministry issued various circulars implementing the recommendations in regard to pensioners.

Re : Pre-1996 Pensioners

The Ministry issued a Circular, dated 27-5-1998 (read with earlier Circular, dated 24-11-1997) rationalising the pension of pre-1996 pensioners of the Armed Forces, by providing that the consolidated pension of existing pre-1996 pensioners will be calculated with effect from 1-1-1996, by aggregating the following : (i) the existing pension; (ii) dearness relief up to CPI 1510 (i.e., @ 148%, 111% and 96% as the case may be, of basic pension as admissible on 1-1-1996 vide DP & PWs OM, dated
20-3-1996); (iii) Interim relief I; (iv) Interim relief II; and (v) Fitment weightage
@ 40 per cent of the existing pension.

Re : Pensioners retiring on and after 1-1-1996

The Ministry issued a Circular, dated 3-2-1998, providing that the retiring pension of Armed Force Officer retiring on or after 1-1-1996 shall be calculated at 50% of average of reckonable emoluments during the last 10 months of service, reckonable emoluments being basic pay including rank pay, stagnation increment and NPA) for a qualifying service of 33 years, to be reduced proportionately for lesser period of qualifying service.

5. The Ministry by Circular, dated 7-6-1999, conveyed the decision of the President that 'with effect from 1-1-1996, pension of all Armed Forces pensioners irrespective of their date of retirement shall not be less than 50% of the minimum pay in the revised scale of pay introduced with effect from 1-1-1996 of the rank, held by the pensioner.' The circular provided that the revision of pension should be undertaken as follows in case of commissioned officers (both post- and pre-1-1-1996 retires):

"(i) Pension shall continue to be calculated at 50% of the average emoluments in all cases and shall be subject to a minimum of Rs. 1275 p.m. and a maximum of up to 50% of the highest pay applicable to Armed Forces personnel but the full pension in no case shall be less than 50% of the minimum of the revised scale of pay introduced w.e.f. 1-1-1996 for the rank last held by the Commissioned Officer at the time of his/her retirement. However, such pension shall be reduced pro rata, where the pensioners was less than the maximum required service for full pension [vide clause 2.1(a)].

(ii) Where the revised and consolidated pension of pre-1-1-1996 pensioners are not beneficial to him/her under these orders and is either equal to or less than existing consolidated pension under this Ministry's letters dated 24-11-1997, 27-5-1998 and 14-7-1998, as the case may be, his/her pension will not be revised to the disadvantage of the pensioner [vide clause 4]."

The pension of the petitioners were stepped up, re-fixed and paid accordingly.

6. The implementing departments had some doubts in regard to interpretation of the Circular, dated 7-6-1999. They, therefore, sought clarifications from the Ministry on the following two issues - (i) whether NPA admissible as on 1-1-1986 is to be taken into consideration after refixation of pay on notional basis as on 1-1-1986; and (ii) whether NPA is to be added to the minimum of the revised scale while considering stepping up the consolidated pension on 1-1-1996. The Ministry issued the following clarification, vide Circular, dated 11-9-2001, in regard to the Circular, dated 7-6-1999:

"The undersigned is directed to refer to Ministry of Defence Letter No. 1(1)/99/D (Pension/Services) dated 7th June, 1999, wherein decision of the Government that pension of all pensioners irrespective of their date of retirement shall not be less than 50% of the minimum of the revised scale of pay introduced with effect from 1-1-1996 of the post last held by the pensioner was communicated. . . .

NPA granted to medical officers does not form part of the scales of pay. It is a separate element, although it is taken into account for the purpose of computation of pension.

This has been examined in consultation with the Deptt. of Pension of Pensioners' Welfare and the Department of Expenditure and it is clarified that NPA is not to be taken into consideration after re-fixation of pay on notional basis on 1-1-1986. It is also not to be added to the minimum of the revised scale of pay as on 1-1-1996 in cases where consolidated pension is to be stepped up to 50%, in terms of Ministry of Defence Letter No. 1(1)/99/D (Pension/Services) dated 7th June, 1999." [Emphasis supplied]

The Circular also directed the Controller General of Defence Accounts to recalculate the pension by excluding NPA from Basic Pay and await further instructions regarding recovery of excess payments made with effect from 1-1-1996. In view of it, the pension of the petitioners have been revised by excluding the NPA element, by issuing corrigenda to their PPOs.

7. The writ petitioners are aggrieved by the said clarification contained in the Circular, dated 11-9-2001 and the consequential corrigenda to their PPOs reducing their pension. The petitioners therefore filed writ petitions, in different High Courts for the following reliefs:

(i) For quashing the Circular, dated 11-9-2001 and/or for a direction to respondents not to give effect to the said circular.

(ii) For quashing the consequential corrigenda PPOs, issued to the petitioners by the Controller of Defence Accounts.

(iii) For a direction to the respondents, to take into account, NPA at the rate of 25% of the basic pay, including Rank Pay as was being done till the issue of Circular, dated 11-9-2001, while calculating their pension.

[Note : The actual prayers in each case very slightly in form. What is given above is the general purport of the prayers in these petitions.]

The said writ petitions have been transferred to this Court, in pursuance of applications for transfer filed by the Union of India.

8. To understand the grievance of the petitioners, it is necessary to give an illustration:

Lt. General R.K. Upadhyay - (Petitioner No. 2 in W.P. No. 1845/2002 on the file of Delhi High Court corresponding to T.P. (C) No. 833/2002) :

Pension with effect from 1-7-1991

Original pension sanctioned as per PPO No. M/003476/91 (50 per             Rs. 4185

cent of average reckonable emoluments, that is pay plus NPA)

[Note : There was no Rank pay as it was admissible only to the Ranks from Captain to Brigadier]

Pension with effect from 1-1-1996

Stage 1 : Pension as per Ministry's Circular, dated 24-11-1997 and 27-5-1998.

Existing pension	Rs. 4185
Dearness Relief (96% of existing pension)	Rs. 4018
Int. Relief I Rs.	Rs. 50
Int. Relief II Rs.	Rs. 419
Fitment Weightage (40% of existing pension)	Rs. 1674	Rs. 10346

Stage II : Pension as per Ministry's Circular, dated 7-6-1999(vide corrigendum PPO No. M/MODP/030332/1999)

Pay scale of pensioner	Rs. 7300-100-7600
Corresponding revised scale of pay	Rs. 22400-525-24500
Minimum pay in the revised pay scale	Rs. 22400
Add NPA (25% of Rs. 22400)	Rs. 5600 ________________
Total	Rs. 28000 ________________
50% of the aggregate (Rs. 28000) as pension	Rs. 14,000

Stage III : Pension as per Ministry's Circular, dated 7-6-1999, as clarified by Circular, dated 11-9-2001(vide corrigendum PPO No. M/MODP/16129/2001)

Pay scale of Pensioner	Rs. 7300-100-7600
Revised scale of pay	Rs. 22400-525-24500
50% of minimum in the revised scale of pay (Rs. 22400) as pension	Rs. 11,200

Thus, the pension which had been fixed at Rs. 10,346 per month with effect from 1-1-1996, was increased to Rs. 14,000 per month by reason of stepping up as per Circular, dated 7-6-1999 and later reduced to Rs. 11,200 in view of the clarification dated 11-9-2001.

Contentions of Pensioners

9. The petitioners have urged the following contentions:

9.1 The Defence Service Medical Officers were earlier entitled to private practice. The permission to private practice was withdrawn with effect from 1-1-1966 and in lieu of it, the President sanctioned a non-practising allowance (NPA) with the stipulation that such NPA will be treated as 'Pay' for all purposes. As a consequence, in respect of Medical Officers, NPA was always treated as part of 'pay' for purposes of pension. By Circular, dated 7-6-1999, the benefit of stepping up was extended to all armed forces pensioners, including medical officers, with effect from 1-1-1996. The benefit extended was that irrespective of their date of retirement, their pension shall not be less than the 50% of the minimum pay in the revised scale of pay introduced with effect from 1-1-1996 of the rank held by the respective pensioner. The words "minimum pay" should be interpreted as minimum pay in the revised pay-scale plus NPA, in so far as Medical Officers entitled to NPA, as in their cases, the term 'Pay' wherever it occurs, means and includes basic pay plus NPA.

9.2 The Ministry had correctly understood the term "50% of the minimum pay in the revised scale of pay," used in the Circular, dated 7-6-1999 as "50% of the minimum in the revised pay-scale plus NPA", and on that basis issued modified PPOs, revising the pension. For example, in the case of Lt. Generals, where the applicable revised pay scale was Rs. 22,400-525-24,500, the Ministry took the minimum in the revised scale of pay (Rs. 22,400) and added 25% thereof (Rs. 5,600) as NPA and arrived at the pension as Rs. 14,000 being 50% of the aggregate sum of Rs. 28,000. The Circular, dated 11-9-2001, under the guise of a clarification, directed that NPA be omitted while calculating the 50% of the minimum pay in the revised pay scales, for purposes of stepping up. This amounted to unauthorised modification of the President's decision contained in the Ministry's Circular, dated 7-6-1999. It is also opposed to the rule that in the case of Medical Officers, 'Pay' includes NPA, for all purposes. The Ministry had no authority to modify or dilute the President's Policy decision which is given effect by Circular, dated 7-6-1999.

9.3 In the case of Medical Officers who retired on or after 1-1-1996, even after the clarificatory Circular, dated 11-9-2001, NPA is added to the basic pay in the revised pay-scale and 50% of the aggregate is being paid as 'retiring pension'. Adding NPA to the basic pay for arriving at the pension in the case of those who retired on or after 1-1-1996 and omitting to add NPA in the case of pre-1996 retirees amounts to hostile discrimination of pre-1996 retirees, violating Article 14 and the principles relating to pension laid down by this court in D.S. Nakara v. Union of India [1983] 1 SCC 305.

9.4 The Delhi High Court had struck down a similar clarificatory Circular, dated 19-10-1999 relating to Civilian Medical Officers (corresponding to Defence Ministry Circular, dated 11-9-2001 under challenge in these petitions) by judgement dated 18-5-2002. That decision has attained finality and the Union of India has implemented it by reverting back to addition to NPA to minimum pay, for purposes of stepping up the pension in regard to pre-1996 civilian Medical Officers. Union of India has to extend to similar treatment, even in the case of Defence Service Medical Officers, by ignoring the clarification dated 11-9-2001.

9.5 At all events, irrespective of the validity of the clarification dated 11-9-2001, even if any amount has been wrongly paid to petitioners, the Respondents cannot recover such excess amount paid in pursuance of the Circular, dated 7-6-1999.

Questions arising for decision

10. On the contentions urged, the following questions arise for consideration:

(i) Whether the Circular, dated 11-9-2001, is only a clarification, or an amendment, to the Circular, dated 7-6-1999.

(ii) Whether the Circular, dated 7-6-1999 as clarified by Circular, dated 11-9-2001, leads to unequal treatment of those who retired prior to 1-1-1996 and those who retired after 1-1-1996 solely with reference to date of retirement.

(iii) Whether the respondents having accepted and implemented the decision of the Delhi High Court (in Dr. K.C. Garg v. Union of India. C.M.P. No. 7322/2001 and connected cases decided on 18-5-2002) on a similar issue, are required to extend a similar treatment to Defence Service Medical Officers also, by cancelling the Circular, dated 11-9-2001.

(iv) Even if the Circular, dated 11-9-2001 is found to be valid, whether Respondents are not entitled to recover the excess payments made.

Re : Question No. (i)

11. We may first refer to the intent and purport of the Circular, dated 7-6-1999. The Circular, dated 7-6-1999 neither prescribes the requirements/qualifications for entitlement to pension nor the method of determination of pension. It only effectuates the President's decision that the pension (which has already been determined in accordance with the applicable rules/orders) irrespective of the date of retirement, shall not be less than 50% of the minimum pay in the revised scales of pay introduced with effect from 1-1-1996. Pension is determined as per relevant rules/orders, by calculating the average of reckonable emoluments (basic pay, Rank Pay and NPA) drawn during last 10 months of service and then taking 50% thereof as the retiring pension applicable to retirees with 33 years of qualifying service, with proportionate reduction for retirees with lesser period of qualifying service. The basis for calculating the pension in respect of those who retired prior to 1-1-1996, and those retired on or after 1-1-1996 happens to be the same. The retiring pension is 50% of the average reckonable emoluments for retirees with 33 years of qualifying service, with proportionate reduction for those with lesser years of qualifying service. The President's decision given effect by Circular, dated
7-6-1999 only extends to all pre-1996 retirees, who did not have the benefit of fixation of pension with reference to the revised pay scales which came into effect on 1-1-1996, the benefit of the said revised pay scales, albeit in a limited manner. In so doing, it also puts those who retired on or after 1-1-1986 and pre-1986 retirees on par and on a common platform, removing the disparity, if any, in their pensions.

12. When the Fifth Central Pay Commission recommendations were implemented, the pension of those who retired prior to 1-1-1996, was rationalised by directing that their pension shall be the aggregate of (a) existing pension; (b) dearness relief; (c) interim relief I; (d) interim relief II, and (e) fitment weightage of 40% of the existing pension. The 'existing pension' referred to therein was the pension which had been arrived at by calculating 50% of the average pay, NPA and Rank Pay during the last 10 months of service. The Circular, dated 7-6-1999 made it clear that pension of retirees shall continue to be calculated at 50% of average of reckonable emoluments for the last 10 months before retirement, but only stipulated that the 'full' pension (that is pension for 33 years service) shall not be less than the 50% of the minimum pay in the revised pay scale introduced with effect from 1-1-1996. The Circular, dated 7-6-1999 also made it clear that if the minimum prescribed therein was not beneficial to the pensioner, that is, where it was either equal to or less than the existing consolidated pension, his pension will not be reduced to his disadvantage. In short, the Circular, dated 7-6-1999, merely stepped up the pension (for a qualifying service of 33 years) to 50% of the minimum pay in the revised scale of pay introduced with effect from 1-1-1996 of the rank held by such pensioner, where his pension was less. We may here note that whenever the reference is to stepping up pension to 50% of the minimum pay in the revised scale of pay, it applies to those with 33 years of qualifying service and gets proportionately reduced for lesser period of qualifying service.

13. The emoluments of those who retired on or after 1-1-1996, calculated with reference to the basic pay in the revised scale of pay plus NPA will certainly be more than the minimum pay in the revised scale of pay and therefore, in their cases, the question of stepping up will not arise. On the other hand, as the pension of pre-1996 retirees was based on the basic pay under the old pay scale, plus NPA, and as the old pay scale was much less than the 1996 revised pay their pension required to be stepped up. The extent to which the existing pension should be stepped up is clearly specified in the Circular as "minimum pay in the revised scale of pay". The words used do not give room for any confusion or doubt. A 'pay scale' has basically three elements. The first is the minimum pay or initial pay in the pay scale. The second is the periodical increment. The third is the maximum pay in the pay scale. An employee starts with the initial pay in the pay scale and gets periodical increases (increments) and reaches the maximum or ceiling in the pay scale. Each stage in the pay scale starting from the initial pay and ending with the ceiling in the pay scale, when applied to an employee is referred to as 'basic pay' of the employee. Whenever the Government revises the pay scales, a fitment exercise takes place as per the principle of fitment (formula) provided in the rules governing the revision of pay so that the 'basic pay' in the old scale is covered into a 'basic pay' in the revised pay scale. When the Circular, dated 7-6-1999 used the words '50% of the minimum pay in the revised scale of pay', it referred to 50% of the initial pay in the revised scale of pay. If the old scale of pay was Rs. 7300-100-7600 and if the revised scale of pay was Rs. 22400-525-24500, the minimum pay in the revised scale of pay would be Rs. 22400 and 50% of the minimum pay in the revised scale of pay would be Rs. 11200.

14. It is no doubt true that the term 'pay', with reference to medical officers, includes the basic pay and NPA. But the term 'basic pay' does not include NPA. In the absence of any special definition, the term 'basic pay of a Government servant' refers to the applicable stage of pay in the pay scale to which he is entitled, and does not include NPA even in the case of Medical Officers. What the Circular, dated 7-6-1999 intended to extend by way of benefit to all pensioners, was a minimum pension, that is, 50% of the minimum pay in the 1996 revised scale of pay. NPA has no part to play in the minimum that is sought to be assured. NPA has relevance only for initial fixation of pension and not for stepping up pension under Circular, dated
7-6-1999.

15. As a result, if the pension of a retiree is determined by taking into account NPA as part of 'pay' and the pension so determined is more than 50% of minimum pay in the revised scale of pay, he would continue to get such higher pension. This would happen in the case of all those who retired on or after 1-1-1996. If the pension determined by taking into account NPA as part of pay, is less than 50% of the minimum pay in the revised scale of pay, his pension would be stepped up to 50% of the minimum pay in the revised scale of pay. This would happen in the case of pre-1996 retirees.

16. The petitioners want to read the words "not less than 50% of the minimum pay in the revised scale of pay" in the Circular, dated 7-6-1999, as "not less than 50% of the minimum pay in the revised scale of pay plus NPA". When the language used is clear and unambiguous and the intention is also clear, it is not permissible to add words to the Circular, dated 7-6-1999 to satisfy what petitioners consider to be just and reasonable. "Minimum pay in the revised scale of pay" refers only to the initial pay in the revised scale of pay and not anything more. Due to a misinterpretation, NPA was included for the purpose of giving the benefit of stepping up the pension in the case of retired medical officers. The fact that NPA had already been taken into account while calculating the 'existing pension' of the medical officers who retired before 1-1-1996 was lost sight of. The fact that NPA is part of 'pay' and not part of 'basic pay' was also overlooked. Therefore, it became necessary to issue the clarification, which was done by Circular, dated 11-9-2001, clarifying that it was impermissible to again add NPA to 'the minimum pay in the revised pay scale' for the purpose of stepping up the pension.

17. Another grievance of the petitioners is that prior to Circular, dated 7-6-1999, the pay and pension of medical officers was always more than the pay and pension of non-medical officers of the same rank, in view of NPA element, and by virtue of the clarificatory Circular, dated 11-9-2001, the pension of both categories (Medical Officers and non-Medical Officers), who retired prior to 1996, became equal. The petitioners contend that even after stepping up under Circular, dated 7-6-1999, the disparity which earlier existed between Medical Officers and Non-Medical Officers of the same rank, should be maintained. They point out that if the pension of medical officers and non-medical officers of the same rank should be same, the purpose of giving NPA as part of pay to Medical Officers was defeated and NPA became illusory. We cannot agree. When the purpose of stepping up pension is to ensure that all retirees of the same rank get pension which is not less than the prescribed minimum, it would be unjust for a section to say that merely because they were earlier enjoying a higher pension than others of the same rank, such disparity should be continued, even after stepping up. When the object of stepping up of pension is to bring in parity and avoid disparity, the claim of petitioners that disparity should be continued cannot be accepted.

18. We, therefore, hold that Circular, dated 11-9-2001, is only a clarification to correct the wrong interpretation of the Circular, dated 7-6-1999. It neither amends nor modifies the Circular, dated 7-6-1999.

Re : Question No. (ii)

19. The petitioners next contend that in the case of Medical Officers who retired on or after 1-1-1996, even after the Circular, dated 7-6-1999 and 11-9-2001, NPA is added to basic pay for the purpose of calculating the pension, whereas in the case of pre-1996 retirees, NPA is not being added and that amounts to discrimination. This is a misleading contention. In the case of those retiring on or after 1-1-1996, NPA is added to basic pay, to determine their pension, and not for stepping up the pension. In the case of pre-1996 retirees, as NPA was already added while determining their pension, the question of adding it again, for purposes of stepping up the pension, does not arise.

20. The principles relating to pension relevant to the issue are well settled. They are:

(a) In regard to pensioners forming a class, computation of pension cannot be by different formula thereby applying an unequal treatment solely on the ground that some retired earlier and some retired later. If the retirees is eligible for pension at the time of his retirement and the relevant pension scheme is subsequently amended, he would become eligible to get enhanced pension as per the new formula of computation of pension from the date when the amendment takes effect. In such a situation, the additional benefit under the amendment, made available to the same class of pensioners cannot be denied to him on the ground that he had retired prior to the date on which the aforesaid additional benefit was conferred.

(b) But all retirees retiring with a particular rank do not form a single class for all purposes. Where the reckonable emoluments as on the date of retirement (for the purpose of computation of pension) are different in respect of two groups of pensioners, who retired with the same rank, the group getting lesser pension cannot contend that their pension should be identical with or equal to the pension received by the group whose reckonable emolument was higher. In other words, pensioners who retire with the same rank need not be given identical pension, where their average reckonable emoluments at the time of their retirement were different, in view of the difference in pay, or in view of different pay scales being in force.

(c) When two sets of employees of the same rank retire at different points of time, it is not discrimination if:

(i) when one set retired, there was no pension scheme and when the other set retired, a pension scheme was in force.

(ii) when one set retired, a voluntary retirement scheme was in force and when the other set retired, such a scheme was not in force; or

(iii) when one set retired, a PF scheme was applicable and when the other set retired, a pension scheme was in place.

One set cannot claim the benefit extended to the other set on the ground that they are similarly situated. Though they retired with the same rank, they are not of the 'same class' or 'homogeneous group'. The employer can validly fix a cut-off date for introducing any new pension/retirement scheme or for discontinuance of any existing scheme. What is discriminatory is introduction of a benefit retrospectively (or prospectively) fixing a cut-off date arbitrarily thereby dividing a single homogeneous class of pensioners into two groups and subjecting them to different treatment.

[Vide D.S. Nakara v. Union of India [1983] 1 SCC 305, Krishna Kumar v. Union of India [1990] 4 SCC 207, Indian Ex-Services League v. Union of India [1991] 2 SCC 104, V. Kasturi v. Managing Director, State Bank of India [1998] 8 SCC 30 and Union of India v. Dr. Vijayapurapu Subbayamma [2000] 7 SCC 662.

21. As noticed earlier, pension is determined with reference to the applicable rules/orders governing pension. The Ministry's Circular, dated 7-6-1999 comes in, only to step up the pension from 1-1-1996, if the pension calculated in accordance with the rules/orders is less than 50% of the minimum pay in the revised scale of pay introduced with effect from 1-1-1996. There is no need to step up the pension of those who retired on or after 1-1-1996, as their pension will be more than or in no event less than the minimum provided under the Circular, dated 7-6-1999. The stepping up is required only to those who retired prior to 1-1-1996 as their pension was lower on account of the fact that their reckonable emoluments for purpose of calculation of pension, was based on the old scales of pay. Let us take the case of a Medical Officer of the rank Lt. General, with 33 years of service, who retired in the year 1998 after getting two increments in the revised pay scale. As the applicable pay scale is Rs. 22400-525-24500, his basic pay would have been Rs. 23,450 at the time of retirement. 25% thereof namely, Rs. 5863 would be the NPA. If the reckonable emolument was Rs. 29313, pension will be 50% thereof, namely Rs. 14656. As the pension under the Rules (Rs. 14656) was more than 50% of the minimum of revised pay scale (Rs. 11200) assured under the Circular, dated 7-6-1999, the benefit of stepping up is not required in his case. It is only those whose pension was determined with reference to old scales of pay, and not the revised higher scale of pay, who require the benefit of the stepping up. Therefore, the contention that pre-1996 retriees and post-1-1-1996 retirees are being treated differently, is untenable. They are treated similarly. But the fact that post-1-1-1996 retriees do not require the benefit of stepping up, cannot by any stretch of imagination, give rise to a contention that the benefit given to pre-1996 retriees by way of stepping up, amounts to discrimination.

22. The contention that NPA is taken into account in the case of post-1-1-1996 retirees but not pre-1996 retriees is untenable. NPA is taken as part of 'pay' in the case of both pre- and post-1-1-1996 retriees. NPA is not taken into account in the case of any retiree for applying the stepping up benefit under Circular, dated
7-6-1999. It is a different matter that post-7-6-1996 retirees do not require the benefit under the Circular, dated 7-6-1999. As already noticed, while calculating pension of the pre-1996 retirees, NPA had already been taken into account as part of 'pay', and that pension which was determined after taking into account NPA, is found to be less than the minimum guaranteed under the Circular, dated 7-6-1999, their pension is being increased to the minimum provided in the Circular, dated 7-6-1999. NPA cannot again be added to the minimum to step up the pension. If that is done, it will amount to taking NPA into account twice for purposes of pension, which is impermissible. The contention of discrimination between pre-1-1-1996 retriees and post-1-1-1996 retirees is, therefore, imaginary.

Re : Question No. (iii)

23. It was alleged that in the case of civilian medical officers, the nodal Ministry had issued Circulars, dated 17-12-1998 and 29-10-1999 (corresponding to the Defence Ministry's Circulars, dated 7-6-1999 and 11-9-2001); that some civilian Medical Officer Retriees had challenged the said Circular, dated 29-10-1999 directing that NPA shall not be added to minimum pay in the revised scale, before the Delhi High Court; that the High Court had allowed the said writ petitions (CWP No. 7322/2001 and connected cases - K.G. Garg v. Union of India) by order dated 18-5-2002; and that the said order was not challenged by the Union of India, but on the other hand, was implemented by adding NPA to basic pay while stepping up the pension in the case of civilian Medical Doctors who had retired prior to 1-1-1996. It is contended that the Respondents having accepted and implemented the decision of the Delhi High Court in the case of civilian medical officers, cannot discriminate against the Defence service medical officers placed in identical position and, therefore, the benefit given to the civilian medical officers in pursuance of the decision of the Delhi High Court should also be extended to them. The petitioners rely on the broad principles underlying estoppel by judgement, legitimate expectation, and fairness in action in support of their contention.

24. Respondents have filed an affidavit dated 1-8-2006 admitting that in pursuance of the decision of the Delhi High Court, the Circular, dated 29-10-1999 had been withdrawn but clarified that it was withdrawn only in regard to the civilian medical officers who were petitioners in the said writ petitions and not in regard to all civilian medical officers. It is contended that the fact that a decision of the High Court had been accepted or implemented in the case of some persons, will not come in the way of the Union of India resisting similar petitions filed by others, in public interest.

25. A similar contention was considered by this Court in State of Maharashtrav. Digambar [1995] 4 SCC 683. This Court held:

"Sometimes, as it was stated on behalf of the State, the State Government may not choose to file appeals against certain judgements of the High Court rendered in Writ petitions when they are considered as stray cases and not worthwhile invoking the discretionary jurisdiction of this court under Article 136 of the Constitution, for seeking redressal therefor. At other times, it is also possible for the State, not to file appeals before this Court in some matter on account of improper advice or negligence or improper conduct of officers concerned. It is further possible, that even where SLPs are filed by the State against judgements of High Court, such SLPs may not be entertained by this Court in exercise of its discretionary jurisdiction under Article 136 of the Constitution either because they are considered as india.