TMI Blog2008 (4) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... ial benefits to all the writ petitioners/respondents 1 to 8-retirees in accordance with the Central Government Pension Scheme as opted by them in the year 1989 within a period of four weeks from the date of communication of the order. 3. Briefly stated, the facts of the case are as follows:- The respondents 1 to 8-retirees herein were employees of the Overseas Communication Service (OCS), the Department of Telecommunications of the Government of India. The OCS was converted into a Government Company, namely, 'Videsh Sanchar Nigam Limited' (VSNL) on 1st April, 1986. 4. By an Office Memorandum No. 4(8)/85-P PW dated 13th January, 1986, the Government of India settled the pensionary terms of Government employees who were transferred to an Autonomous Body/Public Sector Undertaking (PSU) on conversion of a Central Government Department/Office into an Autonomous Body or PSU. The relevant terms of the said Circular reads as under:- (a) The permanent Government Servants shall have an option to retain pensionary benefits available to them under Government Rules or be governed by the Rules of the Public Sector Undertaking/Autonomous Body. (b) The Government Servants who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Civil Services (Pension) Rules, 1972. (ii) That such employees, who have specifically opted for Central Government Pensionary benefits, will be entitled to the benefit of payment of pension on the emoluments drawn at the time of retirement from the PSU. It is not obligatory on the part of the transferred employees who opted for pensionary benefits as admissible under Central Government Rules to retain Government pay scales, since both issues are not related. 7. A fresh Staff Notice, bearing Ref. No. HQ-A/01-01/90 PE1 dated 21.2.1990, was issued by VSNL by which the employees were called upon to exercise their option as to whether they wanted to retain the pensionary benefits available to them under the Government Rules or be governed by the Rules of the PSU/Autonomous Body. The clarificatory information was annexed to the said Notice which inter alia provided that the option to retain pensionary benefits under the Central Government Rules will mean that the employees will receive pensionary benefits (Pension Gratuity) on the basis of emoluments/average emoluments drawn by the employee at the time of retirement from VSNL and in accordance with the Rules of the Central Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment pension on superannuation at the time of absorption in the Company and thereafter VSNL by Office Order dated 19th December, 1995 carried out modifications in Para 2(A) of the earlier office order dated 18th October, 1995. The modified para reads as under:- A. Employees who retired prior to 1.1.1992 shall have the following alternative for regulation of their pension; (i) To draw pension on eligible CDA pay with admissible Dearness Relief as per the existing Central Government rules. (ii) To draw pension last IDA pay (emoluments for purposes of calculation of pension shall comprise of Basic Pay, Personal Pay, if any) with admissible DA notified by the Government for employees of Public Sector Undertakings. 10. The modification so recorded was a one-time exercise for choosing the alternatives for settlement of pension and the pensioners shall be required to submit their consent to the Regional Heads by 15.1.1996 on a prescribed format giving choice of either of the alternatives. The Assistant General Manager (P) sent a letter dated 19.12.1995 to Shri Nikhileshwar Das, Secretary, VSNL Retired Employees Association, in regard to the alternatives being provided to emplo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so be revised. 13. The respondents 1 to 8, who are the retired VSNL employees, filed W.P. No. 6935 (W) of 1999 before the High Court of Calcutta on 19th April, 1999 seeking inter alia the following reliefs: (a) a writ in the nature of mandamus directing the VSNL and Union of India to rescind or revoke the impugned decisions and orders contained in the Office Orders/Memoranda dated October 18., 1995 (Annexure P-11); December 19, 1995 (Annexure P- 12); November 22, 1996 (Annexure P-14); May 5, 1998 (Annexure P-16); May 28, 1998 and November 12, 1998 (Annexure P-17); (b) to pay to the petitioners their pensionary benefits on the basis of the appellants decisions contained in Memoranda and/or Office Orders dated January 13, 1986 (Annexure P-1); March 19, 1986 (Annexure P-2); October 30, 1986; July 5, 1989 (Annexure P-4); December 11, 1989 (Annexure P 6); February 07, 1990 (Annexure P8); February 21, 1990 (Annexure P-8); February 21, 1990 (Annexure P-9) and September 3, 1993 (Annexure P-10). (c) to make payments of arrears of pensionary benefits after calculating average emoluments on the last pay drawn in the revised pay scale of 1992 and other subsequent revised pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per IDA pay scale which would be much higher; (iv) The Hon'ble Court failed to appreciate that IDA pay scales were introduced by VSNL pursuant to the Government letter No. G-12013/1/91-OC dated 24th December, 1992 with retrospective effect in respect of employees who were on the role of company as on 2nd January, 1990 and the same was implemented for Non- Executive Employees in May, 1993 with retrospective effect from 2nd January, 1990 and for Executive Employees in December, 1993 with retrospective effect from 2nd January, 1990. Respondent Nos. 1, 4, 8 and other employees who retired after May, 1993 and December, 1993 (when the change over to the IDA scale was implemented for Non-Executive Employees and Executive Employees respectively) had in fact started drawing pay on the IDA scales of pay and Dearness Allowance (DA) as notified by the Government for employees of Public Sector Undertakings. Therefore, there was no question to respondents Nos. 1 to 8- retirees having claimed vested right to draw DR as per existing Central Government Rules when they accepted their pension not as per Central Government Rules and CDA pay scales, but as per IDA pay scales which were much hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ixation of the said pay, my Basic Pay (CDA) on 2nd January, 1990 of ₹ 1260/- was taken and clubbed with my CDA Dearness Allowance Relief of ₹ 479/- making the total existing CDA emoluments of ₹ 1739/- (Rupees one thousand seven hundred thirty nine only). From this amount, an amount of Industrial Dearness Allowance and fixed Dearness Allowance (FDA) of ₹ 325.75 (Rupees three hundred twenty five and paise seventy five only) and ₹ 101.60 (Rupees one hundred one and paise sixty only) respectively (i.e. ₹ 427.35 (Rupees four hundred twenty seven and paise thirty five only) was deducted and the amount for fixation was arrived at ₹ 1,311.65 (Rupees one thousand three hundred eleven and paise sixty five only) and I was fitted in the pay scale at ₹ 1,321/- (Rupees one thousand three hundred twenty one only) (Basic pay). On this salary Industrial Dearness Allowance of ₹ 325.75 (Rupees three hundred twenty five and paise seventy five only) plus Fixed Dearness Allowance of ₹ 101.60 (Rupees one hundred one and paise sixty only) was added and my total pay became ₹ 1,748.35 (Rupees one thousand seven hundred forty eight and pais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idavit of Shri Vivek D. Dhule that in the subsequent revision i.e. in 1992 the basic pay and dearness allowance was merged resulting in larger basic pay and lower Industrial Dearness Allowance while the CDA Dearness Allowance remained much larger as the CDA basic pay was much smaller as the same is not supported by any Circular or Office Memo. Finally, he supported the judgment and order of the High Court and prayed for the grant of withheld pay, gratuity and arrears of pensionary benefits to respondents-retirees. 19. The learned counsel for the respondents-retirees on the basis of the available record contended before us that the reasons given by the learned Single Judge as well as by the Division Bench of the High Court for granting relief to the respondents - retirees are based upon proper appreciation of the various Office Memoranda issued by VSNL and the Union of India from time to time relating to the subject-matter in issue. It has however, been contended that pension being a right (and not a bounty) available to retired employees and DR being a part of pension, right to receive the same could not have been denied merely because the incumbent opted for IDA pay scale. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 and as amended from time to time. In partial modification of O.M. No. 4(8)/85-P PW dated 13th January, 1986 and O.M. of even number dated 30th October, 1986 on the subject of settlement of pensionary terms etc. in respect of Government employees transferred en masse to Central Public Sector Undertakings/Central Autonomous Bodies. Government of India, Ministry of Personnel, Public Grievances and Pension (Department of Pension and Pensioners' Welfare) vide its O.M. No. 4/18/87-P PW(D) dated 5th July, 1989 lays down certain terms and conditions which will be applicable to the transferees. The material and relevant terms are that the permanent government servants shall have an option to retain the pensionary benefits available to them under the Government Rules or be governed by the Rules of the PSUs/Autonomous Body. The Government servants, who opted to be governed by the pensionary benefits available under the Government, shall at the time of their retirement be entitled to pension etc. in accordance with the Central Government Rules in force at that time. On December 11, 1989, VSNL issued an Office Memorandum to its employees asking their choice of absorption in the regular se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Government servant has been transferred to an Autonomous Body consequent on the conversion of a Department of the Government into such a body and the government servant so transferred opts to retains the pensionary benefits under the rules of the Government, the emoluments drawn under the Autonomous Body shall be treated as emoluments for the purpose of this rule. Dearness Relief is defined under Rule 3(1)(cc) of the CCS (Pension) Rules to mean relief as defined in Rule 55-A. Rule 55-A deals with Dearness Relief on Pension/Family Pension. It provides: Relief against price rise may be granted to the pensioners in the form of dearness relief at such rates and subject to such conditions as the Central Government may specify from time to time. Rule 9 (21) (a) of Fundamental Rules defines pay to mean the amount drawn monthly by a Government servants as - (i) the pay, then special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity, or to which he is entitled by reason of his position in a cadre; and (ii) overseas pay, special pay and personal pay; and (iii) any oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 2.1.1990 the employees of VSNL would draw increments and DA as per IDA pattern. Based on this direction from the Government of India, Department of Telecommunications, the pay scale of Non-Executives of VSNL was changed over to IDA pay scale in May, 1993 with retrospective effect from 2.1.1990 and for Executives in December, 1993 with retrospective effect from 2.1.1990. The respondents- retirees who were petitioners before the High Court have also relied upon the said letter dated 24.12.1992 in paragraph 28 of the writ petition. Again, VSNL issued office order bearing No. HA-A/01-04/91-PE1 dated 03.09.1993 in reply to clarification sought for by its Centres/Units as to whether pay drawn under IDA pattern could be treated as emoluments for the purpose of calculation of pension and other terminal benefits on or after 2.1.1990 in respect of employees who opted to retain pensionary benefits available to them in terms of Government of India Rules and also for change over to the IDA pattern of pay scale. In accordance with O.M. dated 5.7.1989 issued by Ministry of Personnel, Public Grievances and Pension, (Department of Pension and Pensioners' Welfare) being AnnexureP4, it was clar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 995. The Government of India, Ministry of Personnel, Public Grievances and Pension (Department of Pension and Pensioners' Welfare), New Delhi vide O.M. No. 4/16/90-P PW dated 22.11.1996 clearly clarified that the Central Government employees who opted for retention of Central Government pensionary benefits of absorption in PSUs/Autonomous Body as a result of efforts of Government departments as such, were entitled to the payment of pension based on the emoluments drawn by them in PSUs. In this connection reference to Note 10 below Rule 33, CCS (Pension) Rules, as extracted in the earlier part of this judgment was also made. As per this Office Memorandum, earlier clarification has been repeated and re-asserted that in the case of transferred employees of VSNL who were drawing IDA pay scales prior to their retirement, the emoluments for the purpose of pension shall be calculated on the basis of emoluments drawn in the IDA pay scales. It was also categorically stated that such employees shall not be entitled to the payment of DR on pension at Central Government rates. The Department of Public Enterprises have prescribed a separate DR table in respect of such transferred employees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and unambiguous terms stated that the employees of VSNL were drawing the IDA pay scales with the ADR under the IDA pay scales were entitled to pensionary benefits only on the basis of IDA pay scales as IDA pay scales with IDA pattern of DR was already taken into account for pension and other benefits at the time of retirement of such employees of VSNL. It appears from the various communications exchanged between the Government of India and VSNL referred to earlier that due to some error or bona fide mistake, VSNL made wrong payments of DA to the respondents-retirees calculated on the IDA pay scales and such employees were getting double benefits of DR. Employees who were getting IDA pay scales with IDA pattern of DR could not draw pension calculated on IDA emoluments with CDA pattern of DR. It is well-settled that a bona fide mistake does not confer any right to any party and it can be corrected. VSNL vide subsequent Office Order bearing Ref. No. HQ-A/01-04/91-PE1 dated 18.10.1995 had rectified its mistake appearing in earlier order dated 3.9.1993 and the said office order was again modified by another Office Order bearing No. HQ-8A/01-04/91-PE1 dated 19.12.1995 by which para 2(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The Railway Board did not challenge the validity of the said order of the Tribunal, but it issued two statutory notifications dated 5.12.1988, in which the percentage was reduced to 45% retrospectively w.e.f. 1.1.1973 and to 55% retrospectively w.e.f. 1.4.1979. The argument on behalf of the Railway Board before this Court was that the total amount of pension already being paid to the respondents did not get reduced on account of the impugned notifications. The argument was based on the premise that the respondents had not yet been paid pension by taking into account maximum limit of 75% of 'Running Allowance' on revised pay scale applicable from 1.1.1973. Rejecting this argument, this Court held that pension was payable to the respondents after their retirement. They were no longer in service on the date when the impugned notifications were issued. The amendments in the Rules were not restricted in their application in futuro but apply to employees who had already retired and were no longer in service on the date the impugned notifications were issued. It was observed that pension was determined on the basis of emoluments payable at the time of retirement (Rule 2301). It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Government for the grant of such allowance at particular rate is not justiciable. The grant of DR at such rates and subject to such conditions is the prerogative of the Central Government in terms of Rule 55-A of the CCA (Pension) Rules, 1972. Rule 44 of FR to the grant of DA imposed no duty on the State to grant it and it merely confers a power on the State to grant compassionate allowance at its own discretion and no mandamus or any other writ or direction, therefore, should be issued to compel the exercise of such a power as there is no right in the employee which is capable of being protected or enforced.[see. State of M.P. v. G.C. Mandawar (AIR 1954 SC 493]. 28. In this view of the matter, our conclusion on the question of denial of Dearness Relief on pension in case of those retired employees of VSNL who have drawn pay on IDA pay scales with IDA Dearness Relief is legal and just. Therefore, the view taken by the High Court in this regard cannot be sustained. In the result, this appeal is allowed and the order of the Division Bench in MAT No. 171 of 2002 dated 25.11.2004 affirming the order recorded by the learned Single Judge in CWP No. 6935(W) of 1999 dated 15.10.2001 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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