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TMI Blog2008 (4) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 opt 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. 5. The Government of India, Ministry of Communication, Sanchar Bhawan, vide another O.M. bearing No. G 25015/ 1/86-00 dated 19.3.1986 decided to set up a wholly Government owned Public Sector Corporation known as VSNL which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues 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 Government. 8. The Government of India vide Office Memorandum dated 24.12.1992 conveyed to the VSNL the revision of the pay structure of Executives (below Board level) and Non- Executives/employees of VSNL recruited on or after 1989 to the Industrial Dearness Pattern (IDP). This O.M. also provided that D.A. admissible to Executives and Non-Executives would be at the rates specified in the DPEs O.M. dated 22.1.1991 as amended from time to time. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 employees who retired prior to 1.1.1992 so as to bring to their notice to choose either CDA pay with Central Dearness Relief or IDA pay with admissible DA notified by the Government of India for the employees of PSUs. The Ministry of Personnel, Public Grievances and Pension (Department of Pension and Pensioners' Welfare) vide its Office Memorandum No. 4/16/90-P & PW (D), clearly stated that all those transferred employees on the establishment of VSNL who rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 scales with the dearness relief calculated at the rate or rates prescribed by Central Government for the Central Government emoluments (d) to make payments of the withheld amount of gratuity and commuted value of pension; and to make all such payments with compound interest at the minimum rate of 18% per annum from the date or dates such amounts because due and payable till (which should be forth with) the date or dates such emoluments became due and payable till t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 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 higher in view of the fact that IDA pay scales were arrived at by merger of CDA pay scales and DR; (v) The Hon'ble Court failed to appreciate that if it could be stated that the respondent Nos. 1 to 8retirees have vested right to receive DR as per Central Government Rules, then they did not have any vested right to receive pension as per IDA pay scale; (vi) The Hon'ble Court failed to appreciate that the respondents No. 1 to 8 retirees were approbating and reprobating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pectively (i.e. Rs. 427.35 (Rupees four hundred twenty seven and paise thirty five only) was deducted and the amount for fixation was arrived at Rs. 1,311.65 (Rupees one thousand three hundred eleven and paise sixty five only) and I was fitted in the pay scale at Rs. 1,321/- (Rupees one thousand three hundred twenty one only) (Basic pay). On this salary Industrial Dearness Allowance of Rs. 325.75 (Rupees three hundred twenty five and paise seventy five only) plus Fixed Dearness Allowance of Rs. 101.60 (Rupees one hundred one and paise sixty only) was added and my total pay became Rs. 1,748.35 (Rupees one thousand seven hundred forty eight and paise thirty five only) 3. This shows how the said circular was implemented. 4. In the subsequent revision, i.e. in 1992 the basic pay and dearness allowance was merged, resulting in larger basic pay and lower IDA Dearness Allowance while the CDA Dearness Allowance remained much larger as the CDA basic pay was much smaller." 18. Mr. Ajit Kumar Kar, respondent No.1 herein, in reply to the affidavit of the Senior Manager (HR) dated 22.02.2008 filed an affidavit inter alia states in para 5 " I state that the calculations given as per the pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 support of the submission, reliance has been placed upon a decision of this Court in the case of Chairman, Railway Board and Others v. C.R. Rangadhamaiah and Others [(1997) 6 SCC 623]. The learned counsel also submitted that in the facts and circumstances of the case, this Court shall not be obliged to interfere in the well-merited judgment of the High Court which does not suffer from any infirmity or perversity. 20. We have given our anxious considerations to the pleadings, the reasonings recorded and the view taken by the High Court in the impugned order and the content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 service of VSNL. Along with the said Memorandum, a format was supplied which contained terms and conditions of permanent absorption of the erstwhile OCS staff in the service of VSNL. One of the terms relating to pensionary benefits was that the permanent government servants shall have an option to retain pensionary benefits available to them under the Government Rules or be governed by the Rules of VSNL. The option was also made available to quasi-permanent and temporary employees after they have been confirmed in VSNL. The Government of India, Ministry of Personnel, Public Gri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 other emoluments which may be specially classed as pay by the President. 22. Fresh Staff Notice bearing No. HQ-A/01-01/90-PE1 dated 21.2.1990 came to be issued by VSNL to all the permanent employees in Government Service whose services had been transferred to VSNL from the OCS and who had opted for absorption in VSNL calling upon them to exercise their option in terms of sub-para (a) of Department of Pension and Pensioners' Welfare O.M. No. 4/18/87-P & PW dated 05.07.1989 which was placed on record of the High Court as Annexure P4 along with a clarificatory information which inter alia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 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 clarified that in respect of those employees who had changed over to IDA pattern of pay scale with effect from 2.1.1990 emoluments for purposes of calculation of pension and other terminal benefits shall be the emoluments drawn by them in the IDA scales at the time of their retirement/resignation/death, etc. from the Company. The said order also prescribed that the pension and other terminal benefits in the above case shall be calculated in accordance with the Rules of Central Government in that behalf. It further stated that "Admissible Dearness Relief" (ADR) shall also be allowed thereupon so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and therefore, DR on pension in respect of VSNL retirees shall be regulated by the orders issued by the Department of Public Enterprises from time to time. In these circumstances, it cannot be countenanced that the respondents - retirees have any vested right to receive DR at CDA scales on the pension which was calculated as per the IDA pay scales. The payment, as we have pointed out earlier, was made for sometime under a mistake and in contravention of the Government letter dated 24.12.1992 and, therefore, the office order of VSNL dated 3.9.1993 could never be considered as supporting the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay 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) of the Office Order dated 18.10.1995 was modified to the extent as stated in the earlier part of this judgment. The modified order was one-time exercise for choosing the alternatives of settlement of pension and the pensioners were required to submit their consent to the Regional Heads in a prescribed format by 15th January, 1996. The Government of India, Ministry of Personnel, Public Grievances and Pension (DP & PW), New Delhi, issued O.M. dated 22.11.1996 (AnnexureP14) which is the nodal department of the Government of India for taking policy decisions on pensionary matters sent clarific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f '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 was held that the impugned amendments took away the right of the employees to have their pension computed on the basis of their average emoluments in accordance with the provisions applicable at the time of their retirement. The amount of pension payable to the respondents in accordance with the rules which were in force at the time of their retirement had been reduced. In such circumstances, this Court held that retrospective amendment of statutory rule, adversely affecting pension of employees who already stood retired on the date of the notification was invalid. A retrospective reduction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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