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Union of India & Ors Vs. G. Vasudevan Pillay & Ors [1994] INSC 649 (8 December 1994)

HANSARIA B.L. (J) HANSARIA B.L. (J) KULDIP SINGH (J)

CITATION: 1995 SCC (2) 32 JT 1995 (1) 417 1995 SCALE (1)9

ACT:

HEADNOTE:

HANSARIA, J.:

1.     This conglomeration of appeals (some of which arise because of leave already granted and some come into existence because of leave being granted) require, us to decide three questions:

(1) Whether the decision of the Union of India not to allow Dearness Relief (D.R.) on pension to the ex-serviceman on their re-employment in a civil post is in accordance with law or not;

(2) whether denial of D.R. on family pension on employment of dependents like widows of the ex-servicemen is justified or not and (3) reduction of pay equivalent to enhanced pension of those ex-servicemen who were holding civil posts on 01.01.86, following their re-employment, is permissible or not.

2.     We would examine these question seriatim, Disallowing of D. R. on pension on reemployment.

3.     To answer the above question involved in some of the appeals, the background leading to the aforesaid decision may be briefly noted. To start with there was no provision for payment of D.R. to the pensioners. Various representations were made to the Third Pay Commission seeking some recommendations in this regard for protecting the pension of the Government employees from erosion on ac- count of possible increases in the cost of living in future.

The Commission considered this matter and also the question regarding the manner in which some relief could be provided to the future pensioners. After having noted the various suggestions which the Commission received in reply to its questionnaire, it recommended that all future pensioners, irrespective of the amount of pension drawn by them should be given relief @ 5% of their pension subject to a minimum of Rs. 5/per mensem and maximum of Rs. 25/-. The Commission further recommended that the relief should be given as and when there is a 16 point rise in the 12-monthly average of the All India Working Class Consumer Price Index. This recommendation of the Commission was accepted by the Central Government vide its Office Memorandum of even no. dated 6th April, 1974, making the relief available to those employees belonging to Class II, III and IV, who retired from Services prior to 01.01.73, as well as those who retired afterwards.

4.     A. decision was however, taken subsequently not to pay D.R. to re-employed pensioners. Ilk was made applicable to those ex-servicemen who had come to be re-employed in civil posts. Various writ petitions and Original Applications were filed in different legal for a of the country, which came to be decided either by holding the validity of the 420 decision or by taking a contrary view. The parties who lost have preferred these appeals.

5.     The learned Additional Solicitor General appearing for the Union of India submits that the decision merits our ac- ceptance because of what has been stated in clause (ii) of Rule 55-A of Central Civil Services (Pension) Rule, 1972, as amended in 1991. We are, however, of the view that the decision cannot be so supported for the reason that the aforesaid Rules have application to the persons who were members of Central Civil Services. The ex-serviceman having apparently not been members of such Services, what has been provided in Rule 55 A(ii) cannot be invoked to deny D.R. on pension, family pension to the ex-serviceman on their re- employment.

6.     Had the aforesaid been the only provision pressed into service to deny the DR. to the ex-serviceman, we would have had no difficulty in striking down the decision in as much as the ex-servicemen having been alloyed pension and D.R. on it in accordance with the conditions of service governing defence personnel, the provision contained in the aforesaid rule governing service condition of all together different class of servicemen could not have impinged on their right to get DR. on the pension. Learned Additional Solicitor General, however, advances an alternative submission and the same is that there are even army instructions which, read with Office Memorandum of Ministry of Finance, will show that Dearness Relief of pension cannot be paid even to ex-servicemen on their re-employment. As this point could not be brought home to us well when the cases were heard, as relevant army instructions had not been brought on record, we, while reserving the judgment after close of hearing allowed filing of written submissions, which were done subsequently alongwith which large number of documents were filed to establish the point urged in the Court.

7.     A perusal of the documents shows that the Office Memorandum dated 1.8.1975 of the Ministry of Finance, De- partment of Expenditure, which stated that a re-employed Central Government pensioner is not eligible to draw any relief during the period of re-employment, was made applicable by the Ministry of Defence vide letter of even number dated 28.10.1975 to Armed Forces pensioners also.

These documents are pages 17 and 18 of the written submission, in which it has also been stated that with formation of the Department of Pension and Pensioners' Welfare under Ministry of Personnel, Public Grievances and Pension, all orders issued by the Ministry of Finance were made applicable to Armed Forces Pensioners as well. A reference has then been made to Office Memorandum dated 22.4.1987 on the subject of grant of Dearness Relief to pensioners on the recommendations of the Fourth Central Com- mission, sub-para-v of Annexure-1 to which states that Dearness Relief will be suspended when the Central Government pensioner is re-employed in the department/office of the Central Government.

8.     The aforesaid shows that de hors what has been laid down in clause (ii) of Rule 55-A of the aforesaid Pension Rules, there are materials on records to show that any person, including ex-serviceman, would not be entitled to Dearness Relief on pension on his reemployment to any 421 department/office of the Central Government.

9.     It has, however, been strenuously contended by learned counsel appearing for the re-employed ex-servicemen that pension being a right (and not a bounty) available to a retired employee as held in Nakara, AIR 1983 SC 130, and IDR. being a part of pension, right to receive the same could not have been infringed merely because the incumbent sought re-employment to take care of the hardship which he might have otherwise faced after retirement. To sustain the submission, strength is sought to be derived from the decision of the Kerala High Court in Narayanan v. Union of India 1994 (1) KLT 897, in which a view has been taken that the DR became an integral part of pension, because of which it could not have been discontinued on re-employment. As against this, the view of the Delhi High Court in Civil Writ NO. 1699 of 1992 (disposed of on 23.2.1993) is that the DR is different from pension. For the disposal of the present cases it is not necessary to express any opinion on this aspect of the matter inasmuch as, according to us, even if Dearness Relief be an integral part of pension, we do not find any legal inhibition in disallowing the same in cases of those pensioners who get themselves re-employed after retirement. In our view this category of pensioners can rightfully be treated differently from those who do not get re-employed; and in the case of the re-employed pensioners it would be permissible in law to deny DR. on pension inasmuch as the salary to be paid to them on re-employment takes care of erosion in the value of the money because of rise in prices, which lay at the back of grant of D.R., as they get Dearness Allowance on their pay which allowance is not available to those who do not get re-employed.

10.  We, therefore, hold that the ex-servicemen were rightly debarred from Dearness Relief on their pensions after they got themselves re-employed to any civil post under the Government of India.

`Denial of DR on family pension.

11.  In some of the cases, we are concerned with the denial of Dearness Relief on family pension on employment of de- pendents like widows of the ex-servicemen. This decision has to be sustained in view of what has been stated above regarding denial of DR. on pension on reemployment inasmuch as the official documents referred on that point also mention about denial of D.R. on family pension on employment. The rationale of this decision is getting of Dearness Allowance by the dependents on their pay, which is drawn following employment, because of which Dearness Relief on family pension can justly be denied, as has been done.

Reduction of enhanced pension from pay of those ex-servicemen who were holding civil posts on 01.01.86 following their re-em- ployment.

12.  The aforesaid reduction, which is the subject matter of some appeals, is the fall out of Office Memorandum dated 11.9.87 according to which the pay of the ex-servicemen who were in employment in a civil post as on 01.01.86 following their re-employment, is required to be reduced by an amount equivalent to the enhanced pension made available pursuant to the report of the Fourth Pay Commission.

13.  The pound of attack is that the aforesaid decision violates Articles 14 and 16 of the Constitution inasmuch as there is no rational basis for classifying the employees for the aforesaid purpose on the basis of their being in employment on 01.01.86. This submission has been advanced because the reduction of the aforesaid nature has not been made in respect of those who have been in employment since 01.01.86. The additional affidavit filed on behalf of respondent no. 1 in SLP(C) No. 17456/91 on 25.8.94 contains some names of those who were re-employed after 01.01.86 and are being paid both the revised pay and revised pension.

This factual position has been admitted in the aforesaid written submissions filed on behalf of the Union of India inasmuch as it has been stated in page 9 that the pensioners who are re-employed after 0 1. 0 1. 86 enjoy the benefit of revised pay and also revised pension w.e.f 01.01.86.

14.  Reliance has been placed in support of aforesaid submission on a two Judge Bench decision of this Court, to which one of us (Kuldip Singh, J.) was a party. That decision was in the case of T.S.Thiruvengadam v. Secretary to Government of India, 1993 (2) SCC 174.

The facts of that case are, however, different inasmuch as there the Memorandum dated June 16, 1967 stating that revised pensionary benefits would be made available only to those Central Government servants who have been absorbed in public sector undertakings after mat doe was not found to be constitutional because the very object of bringing to the existence the retired terms and conditions by the Memorandum was to protect the pensionary benefits which the Central Government servants had earned before their absorption into the public sector undertakings. It was, therefore, held that restricting the applicability of the revised Memorandum only to those who are absorbed after coming into force of the same would not only defeat the very object and purpose of the Memorandum but would be contrary to fair play and justice also.

15.  Despite the aforesaid decision being of no aid in the present cases, we find no logic and basis for classifying the reemployment persons on the basis of their being on employment on 01.01.86. Indeed, no justification has been canvassed before us. The decision which held the field before the impugned Memorandum in not taking note of pension while fixing pay of the ex-servicemen on re-employment, which was based on good reasons, had no good reason for its reversal, as enhanced pension was not confined to those who were in employment on 01.01.86. The impugned decision is, therefore, arbitrary and is hit by Articles 14 and 16 of the Constitution. We, therefore, declare the same as void.

16.  Our conclusions on the three questions noted in the opening paragraph are that denial of Dearness Relief on pension/ family pension in cases of those ex-servicemen who got re-employment or whose dependent got employment is legal and just. The decision to reduce the enhanced pension from pay of those ex-servicemen only who were holding civil posts on 01.01.86 following their re-employment is, however, unconstitutional.

17.  The appeals are disposed of accordingly. I.A. Nos. 16, 30-46 in appeals (arising out of S.L.P (C) Nos. 1585-95/94) stand disposed of No order as to costs.

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