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TMI Blog2005 (4) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... 002 and W.P.No. 32527/2004 are again the respective pensioner retired from Government of India service. The writ petitioner in W.P.No. 45135/2002 is yet another pensioner retired from Government of India service. Each of the pensioner in W.P.Nos. 24444/2001 to 24451/2001 went before the Central Administrative Tribunal, Madras Bench by way of separate applications claiming payment of pension calculated on the minimum scale of pay of Rs. 14,300 - 18,300 - the revised pay scale introduced with effect from 01.1.1996. Incidentally, any individual order passed against them denying such pension benefit was sought to be quashed. All those applications were taken up on file by the Central Administrative Tribunal, Madras Bench as O.A.Nos. 432 to 438/2000 and 639/2000. By a common judgment dated 21.6.2001, all the original applications were ordered granting the substantial relief namely, each of the pensioner is entitled to the benefit of the office memorandum dated 17.12.1998 and that their pension has to be calculated on the minimum pay scale on Rs. 14,300 - 18,300, being the revised pay scale introduced with effect from 01.1.1996 and fixed a time schedule for compliance of the said order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he pensioner at the time of his retirement. Admittedly, on the date of retirement, the pensioners in W.P.Nos. 24444/2001 to 24451/2001 and the pensioner in W.P.No. 14913/ 2002 (he is the pensioner in W.P.No. 24450/2001) were drawing a pay in the scale of pay of Rs. 1,500-2,000, having reached the maximum. They were all working as the Superintending Engineer at that time. All of them retired before the recommendation of the 4th Pay Commission. That scale of pay namely, Rs. 1,500-2,000 received by each one of them on the date of their retirement was stepped up to Rs. 3,700 - 5,000 pursuant to the recommendation of the 4th Pay Commission, which again correspondingly was stepped up to Rs. 12,000 - 16,500 consequent to the recommendation of the 5th Pay Commission with effect from 01.1.1996. They having retired even prior to the 4th Pay Commission recommendation, as per the O.M dated 17.12.1998, their pension was fixed after the 5th Pay Commission recommendation calculated on the pay scale of Rs. 12,000 - 16,500 correctly. There was a selection grade with a pay scale of Rs. 2,000 - 2,250, which was increased to Rs. 4,500 - 5,700 after the 4th Pay Commission recommendation with effect fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n taken under Article 77 of the Constitution of India. The clarificatory office memorandum dated 11.5.2001 is not in accordance with Article 77 of the Constitution of India, since it is not shown to have been issued in the name of the President while the office memorandum dated 17.12.1998 is issued in the name of the President. Therefore, having regard to the constitutional protection given to the office memorandum dated 17.12.1998 under Article 77 of the Constitution of India, the rights given to the pensioner under that instrument cannot be taken away by the proceedings dated 11.5.2001 relied upon by the learned Additional Solicitor General, which is only a decision taken at the lower level. Therefore the submission is that, as the proceedings dated 11.5.2001 is not in compliance of Article 77 of the Constitution of India, it must be struck off. Then the learned Senior Counsel submitted that once the Government of India takes a policy decision to give certain benefits to the pensioners, it is not open to the court to test the correctness or otherwise of the said policy decision, so long as it is not in violation of any provision of law and found to be arbitrary. The office memora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicated above while he was on foreign service, contended that the order of the Tribunal is in order. The pensioner in W.P.No. 45135/2002 would attack the Tribunal's order denying the relief based on the clarificatory memorandum dated 11.5.2001 on the same ground as urged by the learned Senior Counsel appearing for the pensioner in W.P.No. 14913/2002. Mr. V.T. Gopalan learned Additional Solicitor General, in meeting the arguments in W.P.No. 14913/2002 and W.P.No. 45315/2002 on the validity of the memorandum dated 11.5.2001, would submit that the said memorandum is also issued in accordance with Article 77 of the Constitution of India and therefore it is binding. Dummy file on that transaction is produced before us in the chamber on 26.4.2005 by the learned Additional Solicitor General of India. Union of India in W.P.No. 32527/ 2004 would attack the order of the Tribunal on the ground that the pay scale of three posts of members were identified for upgradation of Rs. 24,050 - 26,000 only with effect from 1.1.1996 vide proceedings dated 30.6.99 by the Ministry of Finance and therefore it is only prospective in nature and not retrospective. It is his further submission that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stands signed by the Ministers concerned. Having regard to the submissions made by the learned Senior Counsel on either side, we perused the file. From the file it is seen that the subject matter of clarification was put up before the Minister of State and Minister of Finance and they have signed. At the foot of the relevant page, there is an endorsement "Prime Minister approved", which stands authenticated by the Secretary Personnel/Director attached to the Prime Minister's Office. The question is, in the context of the above aspects, namely, the respective Ministers signing and the Prime Minister approving, the very fact that the said clarification is not expressed to be taken in the name of the President would by itself invalidate the order ? 6. Article 77 of the Constitution of India deals with the conduct of business of the Government of India while Article 166 of the Constitution of India deals with the conduct of business of the Government of a State. The provisions under both the Articles are verbatim the same. In Dattatraya Moreshwar v. State of Bombay MANU/SC/0014/1952 a Constitution Bench was considering a challenge to the order of the Government confirmin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Government in exercise of the power conferred on him under the rules delegating such power to him the order cannot be questioned." In Chitraleka R v. State of Mysore MANU/SC/0030/1964 a Constitution Bench of the Supreme Court, after referring to the judgment of the Supreme Court in the case reported in State of Bombay v. Purushottam Jog Naik MANU/SC/0016/1952 referred to supra, held that it is settled law that provisions of Article 166 of the Constitution are only directory and not mandatory in character and if they are not complied with, it can be established as a question of fact that the impugned order was issued in fact by the State Government or the Governor. A Division Bench of this court headed by the then Chief Justice in the case reported in Avana Nadar v. Union of India 1987 (2) LLN 143 following the above referred to judgments, sustained the executive action taken in that case holding that the said order was in strict compliance to Rule 3 of the Government of India (Transaction of Business) Rules, 1961 - the Rules were made exercising power under Article 77(3) of the Constitution of India. From the above decided case laws, it is clear to our mind that though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded to go through the file produced by the learned Additional Solicitor General to find out whether the clarification dated 11.5.2001 is in compliance to the requirement of Article 77 of the Constitution of India. On going through the file, we have seen that apart from the Minister of State and the Minister of Finance signing the proceedings, there is an endorsement namely, "Prime Minister approved", under the authentication of the Secretary Personnel/Director of the Prime Minister's Office. The said proceeding has come to be issued by the appropriate authority namely, the Ministry, and Rule 3 of the Government of India (Transaction of Business) Rules, 1961 issued under Article 77(3) of the Constitution of India enables such decision to be taken by the concerned Ministry. Accordingly we conclude that the clarification dated 11.5.2001 is valid and it is an executive action taken by the Government of India in accordance with the Rules framed under Article 77(3) of the Constitution of India. The next question is, what is the impact of the clarification dated 11.5.2001 on the office memorandum dated 17.12.1998? The Hon'ble Supreme Court of India had an occasion in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 700 and then Rs. 14,300 - 18,300. Each one of them have completed more than 13 years of service by the time they retired is also not in dispute. The fact remains that under the 5th Pay Commission recommendation, there were two scales of pay namely, Rs. 12,000 - 16,500 and Rs. 14,300 - 18,300 corresponding to the earlier scales of pay. But however, the pensioners concerned in the above mentioned writ petitions, relying upon the communication dated 18.12.1997 from the Ministry of Information & Broadcasting, would contend that both the above referred to scales of pay were merged into one single scale of pay namely, Rs. 14,300 - 18,300 and under that communication, whoever had a total service of 13 years in Group-A would be entitled to that single revised pay scale. Therefore their case is that since each one of them have put in more than 13 years of service on the date of their retirement, merger of the two scales of pay namely, Rs. 12,000 - 16,500 and Rs. 14,300 - 18,300 into one as Rs. 14,300 - 18,300 would enure to their benefit also and if that is accepted, then their pension fixation on the basis of the office memorandum dated 17.12.1998 should be not less than 50% of that single ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... communication dated 18.12.1997 would not apply to the pensioners. In fact, there is no reference at all to the pensioners in the said communication. Under these circumstances, we are not inclined to agree with the submission made by the learned Senior Counsel appearing for the pensioners that consequent to the upgraded revised scale of pay as disclosed in the communication dated 18.12.1997, the pensioners having put in more than 13 years of service on their respective date of retirement, would get the benefit of such upgraded revised scale for the purpose of fixing their pension. Therefore the communication dated 18.12.1997 stands excluded from consideration in analysing the claim of the pensioners. 9. If that is so, then we have to look into the office memorandum dated 17.12.1998 and the clarification dated 11.5.2001. Under the office memorandum dated 17.12.1998 it is declared that the pension payable shall not be less than 50% of the minimum of the revised scale of pay introduced with effect from 1.1.1996 for the post last held by the pensioner at the time of his retirement. The post last held by the pensioner in each of the writ petition carried a pay scale of Rs. 1,500 - 2,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ternoon of 3.4.1986, in which post he retired within two or three months thereafter. In "MTNL" he was drawing a scale of pay of Rs. 4,500 -- 5,700 and in the parent department before deputation, he was drawing a scale of pay of Rs. 3,700 - 5,000. The question is, in fixing his pension, whether the emoluments received by him in "MTNL" at Rs. 4,500 - 5,700 with the corresponding upward revision should be taken into account or the salary drawn by him in the parent department at Rs. 3,700 - 5,000 with the corresponding revision should be taken into account? This issue is squarely covered by the Central Civil Service (Pension) Rules. Rule 33 deals with emoluments. Note 7 to this Rule states that pay drawn by a Government servant while on foreign service shall not be treated as emoluments but the pay, which he would have drawn under the Government had he not been on foreign service shall alone be treated as emoluments. When this was brought to the notice of the Central Administrative Tribunal by the Union of India to deny the claim of the pensioner, the Central Administrative Tribunal relied upon Note 10 to Rule 33 to repel that point. Note 10 reads as hereunder: &q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... based on the revised pay scale of Rs. 12,000 -16,500 fixed in implementation of the 5th Pay Commission recommendation. He would state that he must be fixed in the pay scale of Rs. 14,300 - 18,300 and accordingly his pension must be revised. Union of India resisted the claim on the following basis: "The pensioner was in the pay scale of Rs. 1,500 - 1,800 on the date of his retirement drawing a pay of Rs. 1,800. That pay scale was on the basis of the 3rd Pay Commission recommendation. Under the 4th Pay Commission recommendation, it was correspondingly revised to Rs. 3,700 - 5,000 and under the 5th Pay Commission recommendation, it was revised to Rs. 12,000 - 16,500. The pensioner was never in the scale of pay of Rs. 4,500 - 5,700 and the single merged pay of Rs. 14,300 - 18,300 was given to only those who were earlier on the pay scale of Rs. 4,500 - 5,700. Accordingly his pension was fixed on the revised pay scale of Rs. 12,000 - 16,500 with effect from 1.1.1996. The Tribunal went into the matter in detail and found that the clarification dated 11.5.2001 coupled with the office memorandum dated 17.12.1998 would disable the pensioner from having his pension fixed on the pay s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as drawing on the date of his retirement. In implementing the 5th Pay Commission recommendation on the pay last drawn by the pensioner, the re-fixation was only at Rs. 22,400 - 26,000 and his fixation of pension shall be only on that basis and not on any other basis. For the reasons stated above, we hold that the impugned order is erroneous and it is liable to be set aside. Accordingly, it is set aside and W.P.No. 32527/2004 is allowed. 13. Before we part with this case, we also address ourselves to the arguments advanced by the learned Senior Counsel appearing for the pensioners and the other counsels appearing for the pensioners on the ground that the order of the Central Administrative Tribunal Bangalore, confirmed by the Karnataka High Court, gave the benefit to the pensioners as asked for by the pensioners in the present batch of cases; Delhi High Court sustained the order of the Central Administrative Tribunal, Delhi giving such a relief to the pensioners, which order was affirmed by the Hon'ble Supreme Court of India by rejecting the special leave petition at the admission stage itself and all these judgments would have a persuasive value in our mind. It is a well settl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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