Ahmed Hussain Khan Vs. State of Andhra
Pradesh [1984] INSC 184 (28 September 1984)
MADON, D.P.
MADON, D.P.
CHANDRACHUD, Y.V. ((CJ) MISRA RANGNATH
CITATION: 1984 AIR 1855 1985 SCR (1) 908 1984
SCC Supl. 467 1984 SCALE (2)561
CITATOR INFO :
R 1984 SC1910 (1)
ACT:
Hyderabad Civil Services Rules-Rule
299(1)(b)- Interpretation of Maximum pension payable to a government servant is
Rs. 1000 and not Rs. 857.15 per month in Government of India Currency.
Government Notification dated February 3,1971 amending cl. (b) of sub-rule (1)
of rule 299 not valid.
States Reorganization Act, 1956-Proviso to
sub-s. (7) of s. 115-When applicable Pension is a condition of service and any
change made by Government in pension disadvantageous to government servant must
comply with requirements of proviso to sub-s. (7) of s. 115.
Words and Phrases-'Pension'-Pension is a
condition of service.
HEADNOTE:
The appellants in Civil Appeals No. 2627
& 2628 of 1977 joined superior Civil service of the erstwhile Indian State
of Hyderabad in the year 1945 and 1942 respectively. At that time their
conditions of service were governed by the Hyderabad Civil Services Regulations
promulgated in obedience to the Nizam's Firman. Regulation 6 of these
Regulations inter alia provided that an officer's claim to pension was
regulated by the rules in force at the time when the officer retired,
Regulation 313(b) provided that the maximum pension ordinarily admissible would
be Osmania Sikka (O.S.) Rs. 1,000 a month. 'The erstwhile Indian Slate of Hyderabad
had its own currency known as The "Osmania Sikka" denominated in
short as "O.S." and the phrase " O.S." Rs. 1000 a
month" which occurred in clause (h) of Regulation 313 meant Osmania Sikka
Rs. 1000 a month. The Government of India currency was known as Indian
Government currency" and denominated in short as "I.G.
currency". The standard rate of exchange was 7 O.S. rupees for 6 I.G.
rupees.
Under clause (22) of section 2 of the
Hyderabad General Clauses Act (No. III of 1308 F.), as it then stood, 'rupee"
meant a rupee in the O.S. Currency.
On the coming into force of the Constitution
of India on January 26, 1950, Hyderabad became a part of the territory of
India. Consequently the Hyderabad Currency was demonetized with effect from
April 1, 1953 and the Hyderabad Currency Demonetization (Consequential and
Miscellaneous Provision ) Act, 1953 (Hyderabad Act No. I of 1953) was enacted.
Section 2 of the Demonetization Act provided that references in any Hyderabad
law, regulations Etc. which immediately before the commencement of this Act
were in force in 909 the Hyderabad State shall be construed as if references
therein to any amounts in the O.S. Currency were references to the equivalent
amounts in I.G. Currency according to the standard rate of exchange. By the
Demonetization Act, clause (22) of section 2 of the Hyderabad General Clauses
Act was substituted by a new clause which provided that rupee means a rupee in
I.G. Currency and fractional denominations of a rupee shall be construed
accordingly In 1954, in exercise of the powers under Article 309 of the
Constitution the Rajpramukh of the State of Hyderabad promulgated the Hyderabad
Civil Services Rules. Rule 4 of these Rules provides, inter alia, that
Government servant s claim to pension would be regulated by the rules in force
at the time when the Government servant retires. Rule 299 provides for pension
Clause (b) of Rule 299 provides that the maximum pension ordinarily admissible
will be Rs. 1000 a month. Rule 299 was later renumbered as sub-rule (1) and a
new sub-rule (2) was added which is not relevant. By a notification dated
February 3, 1971, the Governor of Andhra Pradesh amended clause (b) of sub-rule
(1) of rule 299 of the Hyderabad Civil Services Rules and substituted Rs. 857.15
for the expression Rs, 1000.
After the passing of the States
Reorganization Act, 1956 the services of the two appellants were transferred to
the State of Andhra Pradesh under section 115 of the States Reorganization Act.
The two appellants retired in April 1972 and April 1973 respectively. At the
time of their retirement, the appellants pension was fixed at Rs. 683.11 per
month and Rs. 857.15 respectively on the basis that the amount of maximum
pension admissible under clause (b) of Rule 299(1) of the Hyderabad Civil Services
Rules as amended by notification dated February 3, 1971 was Rs. 857.15. The
appellants thereupon filed two writ petitions under Article 226 of the
Constitution in the High Court challenging the said amendment made to clause
(b) of Rule 299(1) inter alia on the ground that under the proviso to
sub-section (7) of section 115 of the State Reorganization Act, 1956 the
amendment required the previous approval of the Central Government which had
not been obtained. A single Judge of the High Court allowed both the writ
petition and issued a writ of mandamus in each of them directing the State of
Andhra Pradesh to fix the pension on the basis that the maximum pension
admissible under the said rule 299(1)(b) of the Hyderabad Civil Services Rules
was Rs. 1000 per month and not Rs. 857.15 per month. In the appeals filed by
the State a Division Bench of the High Court by a common judgment held that the
amendment was valid as the letter dated April 28, 1973 from the Joint Secretary
to the Government of India, to the Secretary to the Government of Andhra
Pradesh was in the nature of a previous approval given by the Central
Government within the meaning of the proviso to sub-section (7) of section 115
of the State Reorganization Act, 1956, to the impugned amendment to the clause
(b) of Rule 299(1) of the Hyderabad Civil Services Rules. Hence these appeals.
The Appellants contended that the letter
dated April 28, 1973, from the Joint Secretary to the Government of India, did
not amount to the previous approval of the Central Government to the amendment
made by the State Government to clause (b) of Rule 299(1) and the amendment
was, therefore, invalid and inoperative.
910 The Respondent contended that
irrespective of the amendment made in clauses (b) of Rule 299(1) by The
notification dated February 3, 1971, the maximum pension actually admissible
under the clause (b) was only Rs. 857.15 in as much as the sum of Rs. 1000
mentioned in the clause (b) prior to its amendment was not Rs. 1000 in
Government of India Currency but in the former Hyderabad Currency, namely,
Osmania Sikka, and that the Letters "O.S." which denominated Osmania
Sikka in short were omitted from the said Rule 299(1)(b) by an inadvertent
printing error.
Allowing the appeals,
HELD: 1. The Appellants are entitled to
receive pension on the basis that the maximum pension admissible under clause
(b) of sub-rule (1) of Rule 99 of the Hyderabad Civil Services Rules is Rs.
1000 per month in Government of India Currency and not Rs. 857.15 per month in
that Currency. [928 F]
2.1 The first question is whether the
omission of the description "O.S." before Rs. 1000 a month in clause
(b) of Rule 299 was the result of an in advertent printing error as contended
by the Respondent or was a departure deliberately made from what was provided
in clause (b) of regulation 313 in order to provide higher pension to
Government servants in superior service. In this connection it is pertinent to
note that the Rules were made after the erstwhile Indian State of Hyderabad had
become a part of the territory of India and after the Demonetization Act had
been enacted and had come into force and clause (2) of section 2 of the
Hyderabad General Clauses Act (which defined the term rupee ) substituted by a
new clause by that Act. After the Demonetization Act there could be no question
of any Act or Rules providing for any payment in Osmania Sikka. The word rupees
in clause (b) or Rule 299 can, therefore, only refer to rupees in I.G. Currency
and not to rupees in O.S. Currency. It is pertinent to point out that the Rules
were not a mere reproduction of the Regulations. The arrangement of the Rules
is in several respects different from the arrangement of the Regulations. There
is no where any amount mentioned in the Rules of O.S. Currency nor are the
different amounts mentioned in the Rules the exact equivalent in I.G. Currency
of the amounts in O.S. Currency mentioned in the Regulations. It is also
significant that Regulation 308 provided that a pension was ordinarily fixed in
the current coin of the Hyderabad State even though it might have to be raid to
persons residing outside the Hyderabad State, and that in special cases it
might be fixed in Government of India Currency subject to the condition that
the maximum of O.S. Rs 1000 per mensem fixed in clauses (b) of Regulation 313
was not exceed ed under any circumstances. The note to Regulation 308 stated
that a pension transferred to India might be converted from the current coin of
the Hyderabad State Indian Government Currency under the principle laid down in
the said Regulation. In the Rules, there is no provision corresponding to
Regulation 308. If there is any doubt (assuming that there can be any), it is
most easily resolved by referring to the Preface to the Eight Edition of the
Hyderabad Civil Services Rules Manual, which for the first time published the
Rules in a book form. In paragraph 3 of the said Preface, the Secretary to
Government, Finance Department, Hyderabad, has expressly stated: The figures
for amounts of rupees and annas mentioned in the rules are all in Indian
Government Currency. There can thus be no scope for any argument that the sum
or 911 Rs. 1000 mentioned as being admissible for maximum pension in clause (b)
of Rule 299 was Rs. 1000 in Indian Government Currency and not in Osmania
Sikka. [921 D-H; 922 A-D]
2.2 Moreover, the question whether in clause
(b) of Rule 299(1) the sum of Rs. 1000 is mentioned in Government of India
Currency or in O.S. Currency has been finally decided and it is not open to the
Respondent to reagitate this question because in Daulat Rai & Ors. v. State
of Andhra Pradesh Writ Petition No. 3318 of 1969, in which a single Judge of
Andhra High Court held that there was no error in mentioning Rs. 1000 in clause
(b) of Rule 299(1).
This was confirmed in State of Andhra Pradesh
v. Daulat Rai and Ors Letters Patent Writ Appeal No. 568 of 1970, decided on
24.9.1970. Against This decision the Special Leave Petition filed in the
Supreme Court was dismissed. This point was also not taken by the Respondent in
the High Court and for the reason also it is not open to the Respondent to urge
it before this Court. [923 B-E] C
3. The second question is of the validity of
Government Notification dated February 3, 1971, amending Clause (b) of sub-rule
(1) of Rule 299. Pension is a condition of service as already held by this
Court in State of Madhya Pradesh v. Shardul Singh. The proviso to sub section
(7) of section 115 of the States Reorganization Act provides that the
conditions of service of a government servant shall not be varied to his
disadvantage except with the previous approval of the Central Government. The
Respondents contention is that letter dated April 28, 1973 from the Government
of India amounts to previous approval of the Central Government. By letter
dated March 13, 1973 the Government of India was requested to accord approval
to the said amendment if it considered it necessary so to do. But its reply
dated April 12, 1973, the Government of India categorically stated that the
amendment did not require its prior approval under section 115 and, therefore,
did not give any approval to the said amendment, To equate the not giving of
approval with a prior approval satisfying the requirements of the proviso to
sub-section (7) of section 115 appears to US to be a contradiction in terms as
also to say that a letter written on April 28, 1973 was a prior approval given
to an amendment which was made more than two years ago earlier on February 3,
1971. The statement made in the letter dated March 13, 1973, that by the said
amendment the conditions of service were not being varied was incorrect because
by the said amendment the maximum pension of Rs. 1000 per month in I.G.
Currency was being reduced to the equivalent
in that Currency of O.S. Rs. 1000 per month, namely, to Rs. 857.15 per month,
and that too with retrospective effect from the date of the coming into force
of Rules, namely, October 1, 1954. For such an amendment the previous approval
of the Central Government was required by the proviso to sub- section (7) of
section 115. Such approval was not given and the amendment made by the said
Notification was, therefore, invalid and inoperative so far as it concerned
persons referred to in sub-section (1) and (2) of section 115 of the States
Reorganization Act. [923 F; 925 E; 927 C-G] State of Madhya Pradesh and Others
v. Shardul Singh [1070] 3 S.C.R. 302 at p. 306, referred to.
4, There is no substance in tho Respondent's
s contention that the appel- 912 lants had waived their right to receive
pension on the basis that the maximum pension admissible under clause (b) of
Rule 299(1) ii Rs. 1000 and were therefore, estopped from claiming pension on
that basis. This point was never taken in the High Court. Further, apart from
the fact that there cannot be any waiver of the right to receive Pension
payable under the Rules made in that behalf there is no factual basis whatever
for this contention. [928 A-Bl
CIVIL APPELLATE JURISDICTION Civil Appeal
Nos. 2627 & 2628 of 1977 Appeals by Special leave from the Judgment and
order dated the 2nd February, 1976 of the Andhra Pradesh High Court in Writ
Appeal Nos. 835 & 920 of 1974.
S. Markandeya for the Appellant.
U.R. Lalit and Narsimhulu for the
Respondents.
The Judgment of the Court was delivered by
MADON, J. These two Appeals by Special Leave granted by this Court raise a
common question of law as regarded the maximum amount of pension for superior
service admissible under clause (b) of sub-rule (1) of Rule 299 of the
Hyderabad Civil Services Rules. According to the Appellant in each of these two
Appeals, such amount is Rs. 1,000 per month while according to the State of
Andhra Pradesh, the Respondent in both these Appeals, it is Rs. 857.15 per
month.
Before considering which of these two rival
contentions is correct, it would be contentions to relate first the relevant
facts which have given rise to this controversy.
Prior to the coming into force of the
Constitution of India on January 26, 1950, Hyderabad was an Indian State within
the meaning of that term as defined in section 311(1) of the Government of
India Act, 1935, and its Ruler within the meaning of that term as defined in
the said section 311(1) was the Nizam. The Appellant in Civil Appeal No. 2627
of 1977, Ahmed Hussain Khan, joined the service of the Public Work Department
of the erstwhile Indian State of Hyderabad in the year 1945 and retired on
April 5, 1972, as Chief Engineer, Electricity (operation), Andhra Pradesh State
Electricity Board. At the time of his retirement he was drawing a salary of Rs.
1,980 per month. By a Government Order, namely, G.O. MS 913 No. 664, Public
Works (E) Department, dated June 22, 1973, this Appellant's pension after
deducting the pension equivalent of death-cum-retirement gratuity was fixed at
Rs. 801.96 per month on the basis that the maximum amount of pension admissible
under Rule 299(1)(b) of the Hyderabad Civil Services Rules was Rs. 1,000 per
month. By another Government order, namely, G.O. MS No. 769, Public Works (Pen
I) Department, dated July 2, 1913, the amount of pension payable to this
Appellant was fixed at Rs. 683.11 per month after deducting the pension
equivalent of death-cum- retirement gratuity on the basis that by a
Notification dated February 3, 1971, amending the said clause (b) of Rule
299(1), the amount of maximum pension admissible under the said clause was
restricted to Rs. 877.15. Ahmed Hussain Khan thereupon filed a writ petition
under Article 226 of the Constitution of India in the High Court of Andhra
Pradesh, being Writ Petition No. 7113 of 1973, challenging the said amendment
made to clause (b) of Rule 299(1) inter alia on the ground that under the
proviso to sub-section (7) of section 115 of the States Reorganization Act,
1956, the said amendment required the previous approval of the Central Government
which had not been obtained. D The Appellant in Civil Appeal No. 2628 of 1977,
S. Gopalan, joined the service of the Public Works Department of the erstwhile
Indian State of Hyderabad in the year 1942 and retired on April, 14, 1973, as
Chief Engineer, Major Irrigation and General Public Works Department,
Government of Andhra Pradesh. At the time of his retirement he was drawing a
salary of Rs. 2,180 per month. By a Government order, namely, G.O. MS No. 462,
P.W., (L1) Department, dated May 8, 1973, his pension was fixed at Rs. 857.15
per month pursuant to the said amended clause (b) of Rule 299(1). He thereupon
filed a writ petition under Article 226 of the Constitution of India in the
High Court of Andhra Pradesh, being Writ Petition No. 7114 of 1973, on the same
grounds as the Appellant Ahmed Hussain Khan Both these writ petitions were
heard together and disposed of by a common judgment by a learned Single Judge
of the said High Court. The aforesaid contention raised in the said writ
petition found favour with the learned Single Judge and he allowed both the
said writ petitions and issued a writ of mandamus m each of them directing the
State of Andhra Pradesh to fix the pension payable to the Appellant in each of
these two Appeals from The date he became eligible for pension, that is, from
the date on which he retired from Government service, on the basis that the
maximum pension admissible under the 914 said Rule 299(1)(b) of the Hyderabad
Civil Services Rules was Rs. 1,000 per month and not Rs. 857.15 per month. The
learned Single Judge also directed the State of Andhra Pradesh to pay the costs
of both these writ petitions. The appeals filed by the State of Andhra Pradesh
against the said judgment and orders of the learned Single Judge, being Writ
Appeals Nos. 835 of 1974 and 920 of 1974, were allowed, with no order as to
costs, by a Division Bench of the Andhra Pradesh High Court by a common
judgment holding that a letter No. S/8/73-SR(S) dated April 28, 1973, from the
Joint Secretary to the Government of India, Cabinet Secretariat, Department of
Personnel and A.R., to the Secretary to the Government of Andhra Pradesh,
Finance Department, was in the nature of a previous approval given by the
Central Government within the meaning of the proviso to sub-section (7) of
section 115 of the States Reorganization Act, 1956, to the impugned amendment
to clause (b) of Rule 299(1) of the Hyderabad Civil Services Rules. The
correctness of the judgment and orders of the Division Bench of the Andhra
Pradesh High Court are assailed before us in these two Appeals.
At the hearing of these two Appeals, Mr.
Markandeya, learned Counsel for the Appellant in each of these two Appeals,
submitted that the said letter dated April 28, 1973, from the Joint Secretary
to the Government of India, did not amount to the previous approval of the
Central Government to the amendment made by the State Government to clause (b)
of Rule 299(1) and the said amendment was, therefore, invalid and. inoperative.
He further submitted that the right to receive pension was property under sub-
clause (f) of clause (1) of Article 19 and Clause (1) of Article 31 of the
Constitution of India and the State Government could not withhold it by a mere
executive order.
So far as Appellant, Ahmed Hussain Khan, was
concerned, Mr. Markandeya further submitted that his pension having already
been fixed under the said Rule 299(1)(b) at Rs. 801.96 per month, on the basis
that the maximum pension admissible under the said Rule was Rs. 1,000 per
month, it could not subsequently be unilaterally reduced to Rs. 683.11 per
month on the basis that the maximum pension admissible under the said Rule
299(1)(b) was Rs. 857.15 per month as was purported to be done by the said
Government order dated July 2, 1973, without according the said Appellant an
opportunity of showing cause against the same.
Mr, Lalit, appearing on behalf of the
Respondent-the State of Andhra Pradesh, raised the following four contentions:
915 (1) Irrespective of the said amendment
made in the said clause (b) of Rule 299(1) by the said Notification dated
February 3, 1971, the maximum pension actually admissible under the said clause
(b) was only Rs.
857.15 inasmuch as the sum of Rs. 1,000
mentioned in the said clause (b) prior to its amendment was not Rs. 1,000 in
Government of India currency but in the former Hyderabad currency, namely,
Osmania Sikka, and that the letters "O.S." which denominated Osmania
Sikka in short were omitted from the said Rule 299(1)(b) by an inadvertent
printing error.
(2) In any event, under the Hyderabad
Currency Demonetization (Consequential and Miscellaneous Provisions) Act, 1953,
the said sum of Rs. 1,000 was to be construed as its equivalent amount in the
Government of India currency and, therefore, according to the standard rate of
exchange the equivalent of Rs. 1,000 in Osmania Sikka was Rs. 857.15 in
Government of India currency.
(3) The said letter dated April 21, 1973,
from the Joint Secretary to the Government of India to the Secretary to the
Government of Andhra Pradesh, Finance Department, constituted the prior
approval of the Central Government within the meaning of the proviso to
sub-sec(ion (7) of section 115 of the States Reorganization Act, 1956, to the
amendment made in the said clause (b) of Rule 299(1).
(4) The Appellant in each of these two
Appeals had received without any protest pension on the basis that the maximum
pension admissible under the said Rule 299(1)(b) was Rs. 857.15 per month and
had thereby waived his right to claim pension on the basis that the maximum
pension admissible under the said Rule was Rs.
1,000 per month and he was, therefore,
estopped from raising this contention.
In Deokinandan Prasad v. State of Bihar and
others this Court held that the payment of pension does not depend upon the
discretion of the State but is governed by the rules made in that behalf and a
Government servant coming within such rules is entitled to claim pension. It
was further held that the grant of pension does not 916 depend upon an order
being passed by the authorities to that effect though for the purpose of
quantifying the amount having regard to the period of service and other allied
matters, it may be necessary for the authorities to pass an order to that
effect, but the right to receive pension flows to an officer not because of the
said order but by virtue of the rules. It was also held in that case that
pension is not a bounty payable at the sweet will and pleasure of the
Government but is a right vesting in a Government servant and was property under
clause (1) of Article 31 of the Constitution of India and the State had no
power to withhold the same by a mere executive order and that similarly this
right was also property under sub-clause (f) of clause (1) of Article 19 of the
Constitution of India and was not saved by clause (5) of that Article. It was
further held that this right of the Government servant to receive pension
cannot be curtailed or taken away by the State by an executive order.
It is, therefore, necessary for us to see the
statutory provisions governing the payment of pension to Government servants
who had joined the service of the erstwhile Indian State of Hyderabad and had
continued in service and retired after the Constitution of India came into
force. At the time when the Appellant in each of these two Appeals joined
service on the terms and conditions of the service of Government servants in
the erstwhile Indian State of Hyderabad were governed by the Hyderabad Civil
Service Regulations, herein after for the sake of brevity referred to as
"the Regulations".
The Regulations were promulgated in obedience
to the Nizam's Firman dated 25th Ramzan, 1337 H. corresponding to 18th Amardad,
1328 F. They were amended from time to time.
Regulation 1 of the Regulations stated that
the Regulations were intended to define the conditions under which salaries,
leave, pension and other allowances were earned by service in the Civil
Departments and the manner in which they were calculated. Regulation 6 provided
as follows:
"6. An officer's claim to pay and
allowances is regulated by the rules in force at the time in respect of which
the pay and allowances are earned; to leave by the rules in force at the time
the leave is applied for and granted and to pension by the rules in force at
the time when the officer retires." (Emphasis supplied) 917 Civil Service
in the erstwhile Indian State of Hyderabad was of two kinds, namely, Superior
service and Inferior service. Clause (a) of Regulation 37 provided that service
in all appointments the pay of which did not exceed Rs. 40 per mensem was
inferior service and That all other service was Superior Service. The Appellant
in each of these two Appeals was, therefore, a member of the Superior Service.
Regulation 313 provided for the amount of pensions and gratuities for superior
service. Clause (a) of Regulation 313 dealt with a qualifying service of less
than ten years. Clause (b) of Regulation 313 dealt with a qualifying service of
ten years or more. The Appellant in each of these two Appeals had put in a qualifying
service of more than ten years and the amount of his pension, had the
Regulations continued in force until he retired, would have been governed by
clause (b) of Regulation 313. The relevant provisions of Regulation 313 were as
follows:
"The amount of pensions and gratuities
for superior service is regulated as follows:
X X X "(b) After a qualifying service of
10 years or more, the amount of the pension will be calculated according to the
following rule; the average salary should be multiplied by the period of
qualifying service, and the product divided by 60; the result will be the
amount of pension admissible. The maximum pension ordinarily admissible will be
O.S. Rs. 1,000 a month. In applying the above rule qualifying service of 25
years or above, whatever its length may be, will be treated as 30 years
service." It may be mentioned that the erstwhile Indian State of Hyderabad
had its own currency known as the "Osmania Sikka" denominated in
short as "O.S." and the phrase "O.S. Rs.
1,000 a month'' which occurred in clause (b)
of Regulation 313 meant Osmania Sikka Rs. 1,000 a month. The Government of
India currency was known as "Indian Government currency" and
denominated in short as "I.G. currency". The standard rate of exchange
was 7 O.S. rupees for 6 I.G. rupees.
Under clause (22) of section 2 of the
Hyderabad General Clauses Act (No. III of 1308 F.), as it then stood,
"rupee" meant a rupee in the O.S. currency.
918 After India became independent, a
Standstill Agreement was entered into in November 1947 by the Nizam with the
Dominion of India, ensuring virtual accession of the erstwhile Indian State of
Hyderabad to the Dominion of India in respect of defence, external affairs and
communications.
By a Firman dated November 23, 1949, the
Nizam declared and directed that the Constitution of India shortly to be
adopted by the Constituent Assembly of India should be the Constitution for the
erstwhile Indian State of Hyderabad as for the other parts of India, and would
be enforced as such and that the provisions of the Constitution of India would,
as from the date of its commencement, supersede and abrogate all other
constitutional provisions inconsistent therewith which were then in force in
the erstwhile Indian State of Hyderabad. By the said Firman, the Nizam further
declared that the said decision taken by him would be subject to ratification
by the people of the State whose will as expressed through the Constituent
Assembly of that State would finally determine the nature of the relationship
between the erstwhile Indian State of Hyderabad and the Union of India as also
the Constitution of that State itself. (see White Paper on Indian States 1950,
pp. 113 and 369-70). The Constituent Assembly of Hyderabad set up shortly
thereafter ratified the decision taken by the Nizam.
On the coming into force of the Constitution
of India on January 26, 1950, Hyderabad became a part of the territory of India
as a Part B State.
Consequent upon the above constitutional
change, Hyderabad currency was demonetized with effect from April 1, 1953, and
the Hyderabad Currency Demonetization (Consequential and Miscellaneous
Provisions) Act 1953 (Hyderabad Act No. 1 of 1953) (herein after referred to as
"the Demonetization Act"), enacted. The Demonetization Act came into
force with effect from April 1, 1953. Section 2 of the Demonetization Act
provided as follows .
"2. Provisions consequential on
demonetization of Hyderabad O.S. Currency:
Subject to the provisions of the Act
references express or implied in any Hyderabad law, Regulation, notification,
order, bye-law, contract and agreement (oral or written) bond and other
instruments which immediately before the commencement of this Act were in force
in the Hyderabad State shall be cons trued as if references therein to any
amounts in O.S. Currency were references to the equivalent amounts in I.G.
currency according to the standard rate of exchange and all rights and 919
liabilities express or implied in O.S. Currency in force before such
commencement shall be construed accordingly:
Provided that nothing in this section shall
preclude a person from paying his dues in equivalent o.
s. Currency to the extent and for the
purposes for which the same continues as legal tender in the Hyderabad State
after the thirty-first day of March 1953.
Illustration-References to O.S. Rs. 7 in any
law or other matters mentioned in this section shall be construed as if such
references to (sic) Rs. 6 in I.G.
Currency according to the standard rate of
exchange." By the Demonetization Act, the said clause (22) of section 2 of
the Hyderabad General Clauses Act was substituted by a new clause which
provided as follows:
"(22) 'rupee' means a rupee in I.G.
Currency and fractional denominations of a rupee shall be construed
accordingly." The definitions contained in section 2 of the Hyderabad
General Clauses Act apply for the interpretation of the terms defined thereby
when occurring in any "Hyderabad law" which expression includes
Regulations made by the Nizam and would thus include the Hyderabad Civil
Service Regulations.
In view of the provisions of the
Demonetization Act, the maximum pension admissible under clause (b) of
Regulation 313 would be Rs. 857.15 being the equivalent in I.G. Currency of
O.S. Rs. 1,000. Had the matter rested there, neither of the Appellants would
have any case because under Regulation 6 reproduced earlier, a Government
servant's claim to pension was to be regulated by the rules in force at the
time the officer retired and the pension that each of them would then have got
would be on the basis that the maximum pension admissible under clause (b) of
Regulation 313 was O.S. Rs. 1,000 a month, that is, Rs.
857.15 a month in I.G. currency. The
Regulations, however, did not continue in existence much longer and were not in
force when the Appellant in each of these two Appeals retired, for they were
replaced in 1954 by the Hyderabad Civil Services Rules which were made by the
Rajpramukh of the State of Hyderabad in exercise of the power conferred by the
proviso to Article 309 of the Constitution of India. The proviso to Article 309
confers upon the Governor of a State and, prior to its amendment by 920 the
Constitution (Seventh Amendment) Act, 1956, conferred upon the Rajpramukh of a
State, or such person as he may direct in the case of services and posts in
connection with the affairs of the State, the power to make rules regulating
the recruitment and the conditions of service of persons appointed, to such
services and posts until provision in that behalf is made by or under an Act of
the appropriate Legislature under the said Article 309, and any rules so made
are to have effect subject to the provisions of any such Act.
The Hyderabad Civil Services Rules
(hereinafter referred to as "the Rules") inter alia provide for
general conditions of service, pay, travelling allowances, dismissal, removal,
suspension and compulsory retirement of civil servants, and their pension,
leave, etc. The Rules came into force on October 1, 1954. Rule 4 of the Rules
is in pari materia with Regulation 6 of the Regulations. Rule 4 provides as
follows:
"4. A Government Servants claim to pay
and allowances is regulated by the rules in force at the time in respect of
which the pay and allowances are earned; to leave by the rules in force at the
time the leave is applied for and granted; and to pension by the rule in force
at the time when the Government servant retires or is discharged from the
service of Government." (Emphasis supplied) The Rules preserved the
distinction between Inferior Service and Superior Service. Under clause (26) of
Rule 7, 'Inferior or Class IV service' is defined as meaning "service in
all appointments, the pay of which does not exceed Rs. 40 per mensem".
Under clause (48) of Rule 7, 'Superior service' is defined as meaning "any
kind of service which is not inferior vide Rule 7(26)". Rule 299 of the
Rules Provides for the pension and gratuity for superior service. Clause (a) or
Rule 299 deals with a case where the qualifying service is less than ten years.
Clause (b) deals with a case where the qualifying service is of ten years or
more. The relevant provisions of Rule 299 are as follows:
"299. The pension and gratuity for
superior service is regulated as follows:
X X X 921 (b) After qualifying service of 10
years or more, the amount of the pension will be calculated according to the
following rule; the average salary should be multiplied by the period of
qualifying service, and the product divided by 60; the result will be the
amount of pension admissible. The maximum pension ordinarily admissible will be
Rs. 1,000 a month. In applying the above rule qualifying service of 25 years or
above, whatever its length may be, will be treated as 30 years service."
It will be noticed that clause (b) of Rule 299 is in pari materia with clause (b)
of Regulation 313 with this difference that while under clause (b) of
Regulation 313 the maximum pension ordinarily admissible has to be "O.S.
Rs.
1000 a month", under clause (b) of Rule
299 the maximum pension ordinarily admissible is to be "Rs. 1,000 a
month".
The first question which falls for
determination is whether the omission of the description "O.S."
before "Rs. 1,000 a month" in clause (b) of Rule 299 was the result
of an inadvertent printing error as contended by the Respondent or was a departure
deliberately made from what was provided in clause (b) of Regulation 313 in
order to provide higher pension to Government servants in superior service. In
this connection, it is pertinent to note that the Rules were made after the
erstwhile Indian State of Hyderabad had become a part of the territory of India
and after the Demonetization Act had been enacted and had come into force and
clause (22) of section 2 of the Hyderabad General Clauses Act (which defined
the term 'rupee') substituted by a new clause by that Act. After the
Demonetization there could be no question of any Act or Rules providing for any
Payment of Osmania Sikka. The word "rupees" in clause (b) of Rule 299
can, therefore, only refer to rupees in I.G. Currency and not to rupees in O.S.
Currency. It is also pertinent to point out that the Rule were not a mere
reproduction of the Regulations. The arrangement of the Rules is in several
respects different from the arrangement of the Regulations.
There is nowhere any amount mentioned in the
Rules in O.S. Currency nor are the different amounts mentioned in the Rules the
exact equivalent in I.G. Currency of the amounts in O.S. Currency mentioned in
the Regulations. For instance, the rates of mileage allowance for journeys by
road mentioned in Rule 99 are not equivalent in I.G. Currency of the rates
mentioned in Regulation 455. It is also significant that Regulation 308
provided that a pension was ordinarily fixed in the current coin of the
Hyderabad State even though it might have to be paid to persons residing
outside the 922 Hyderabad State, and that in special cases it might be fixed in
Government of India Currency subject to the condition that the maximum of O.S.
Rs. 1,000 per mensem fixed in clause (b) of Regulation 313 was not exceeded
under any circumstances. The not to Regulation 308 stated that a pension
transferred to India might be converted from the current coin of the Hyderabad
State to Indian Government currency under the principle laid down in the said
Regulation. In the Rules, we do not find any provision corresponding to
Regulation 308. If there is any doubt (assuming that there can be any), it is
most easily resolved by referring to the Preface to the Eighth Edition of the
Hyderabad Civil Services Rules Manual, which for the first time published the
Rules in a book form. In paragraph 3 of the said Preface, the Secretary to
Government, Finance Department, Hyderabad, has expressly stated: "The
figures for amounts of rupees and annas mentioned in the rules are all in Indian
Government Currency". There can thus be no scope for any argument that the
sum of Rs. 1,000 mentioned as being admissible for maximum pension in clause
(b) of Rule 299 was Rs. 1,000 in Indian Government Currency and not in Osmania
Sikka.
We also find that it is not open to the
Respondent to raise this contention. The State of Hyderabad ceased to be a
separate entity from November 1, 1956, on the coming into force of the States
Reorganization Act, 1956 (Act No. XXXVII of 1956). Under the States
Reorganization Act, the territories of the State of Hyderabad were added partly
to the State of Andhra, partly to the State of Mysore (now Karnataka) and
partly to the State of Bombay (now Maharashtra) and ceased to form part of the
State of Hyderabad. By section 3(1) of the States Reorganization Act, the name
of the State of Andhra was changed to the State of Andhra Pradesh. Consequent
upon this reorganization by the Andhra Pradesh Adaptation order, 1957, the
words 'Hyderabad State' occurring in section 2 of the Demonetization Act were
substituted by the words "Hyderabad Area of the State of Andhra
Pradesh" and by the Andhra Pradesh Act IX of 1961, the words
"Hyderabad Area of the State of Andhra Pradesh" were substituted by
the words "Telangana Area of the State of Andhara Pradesh". Similar
amendments were made in the Hyderabad General Clauses Act and the said Act is
now called the Andhra Pradesh (Telangana Area) General Clauses Act, 1308 F.
Almost fifteen years after the Rules came into force, by a memorandum, being
Memorandum No.
27439/500/Pen.I/69 dated April 28, 1969, the
Assistant Secretary to the Government of Andhra Pradesh, Finance Department,
issued an erratum to the said clause 923 (b) of Rule 299 purporting to correct
the amount of Rs.
1,000 mentioned therein to O.S. Rs. 1,000.
Three retired Government servants thereupon filed a writ petition in the Andhra
Pradesh High Court being Writ Petition No. 3318 of 1969 Daulat Rai and others
v. State of Andhra Pradesh. A learned Single Judge of the said High Court allowed
the said writ petition, holding that there was no error in mentioning Rs. 1,000
and that what the said erratum purported to do was to amend clause (b) of Rule
299 and that the Rules promulgated by the Rajpramukh under the proviso so
Article 309 of the Constitution of India cannot be amended or altered merely by
issuing an erratum and that the said Assistant Secretary to the Government of
Andhra Pradesh was not entitled to amend any such rule unless the sanction of
the Governor of Andhra Pradesh had been obtained thereto.
The said writ petition was thereupon allowed.
A Letters Patent Appeal filed against the said judgment, being Writ Appeal No.
568 of 1970 State of Andhra Pradesh v. Daulat Rai and others, was dismissed on
September 24, 1970, by a Division Bench of the said High Court which also
rejected an application for certificate to appeal to this Court and a petition
for special leave to appeal against the said judgment was dismissed by this
Court. The question whether in clause (b) of Rule 299 the sum of Rs. 1,000 is
mentioned in Government of India Currency or in O.S. Currency has thus been
finally decided and it is not open to the Respondent to reagitate this
question. This point was also not taken by the Respondent in the High Court and
for this reason also it is not open to the Respondent to urge it before us.
We not address ourselves to the question of
the validity of the said Government Notification dated February 3, 1971,
amending clause (b) of sub-rule (1) of Rule 299.
Before setting out the text of the said
Notification, we may mention that it appears that after the judgment of the
Division Bench in Daulat Rai's case Rule 299 was renumbered as sub-rule (1) and
a new sub-rule (2) was added, sub-rule (2) is not relevant for our purpose. The
said Notification was as follows:
In exercise of the powers conferred by the
proviso under article 309 read with article 313 of the Constitution of India
and of all other powers hereunto enabling, the Governor of Andhra Pradesh
hereby makes the following amendment to the Hyderabad Civil Service Rules:- 924
The amendment hereby made shall be deemed to have come into force on the Ist
October, 1954.
AMENDMENT In clause (b) of sub-rule (1) of
rule 299 of the said Rules for the expression "1,000 a month" the
expression "Rs. 857.15 a month" shall be substituted.
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF
ANDHRA PRADESH) P. R. KALE, Joint Secretary to Government In order to
appreciate the challenge to the said Notification, it is necessary to reproduce
the relevant provisions of section l l S of the States Reorganization Act,
1956, namely, sub-sections (2), (3), (4) and (7) thereof: These sub-sections
are as follows:
"(2) Every person who immediately before
the appointed day is serving in connection with the affairs of an existing
State part of whose territories is transferred to another State by the
provisions of Part II shall as from that day, provisionally continue to serve
in connection with the affairs of the principal successor State to that
existing State, unless he is required by general or special order of the
Central Government to serve provisionally in connection with the affairs of any
other successor State.
"(3) As soon as may be after the
appointed day, the Central Government shall by general or special order, deter
mine the successor State to which every person referred to in sub-section (2)
shall be finally allotted for service and the date with effect from which such
allotment shall take effect or be deemed to have taken effect.
"(4) Every person who is finally
allotted under the provisions of sub-section (3) to a successor State, shall if
he is not already serving therein be made available for serving in that
successor State from such date as may be agreed upon between the Governments
concerned, and in default of such agreement as may be determined by the Central
Government.
925 "(7) Nothing in this section shall
be deemed to effect after the appointed day the operation of the provisions of
Chapter I of Part XIV of the Constitution in relation to the determination of
the conditions of service of persons serving in connection with the affairs of
the Union or any State;
Provided that the conditions of service
applicable immediately before the appointed day to the case of any person
referred to in sub-section (1) or sub-section (2) shall not be varied to his
disadvantage except with the previous approval of the Central Government.
Under clause (a) of section 2 of the States
Reorganization Act, 1956, 'principal successor State' in relation to the State of
Hyderabad means the State of Andhra Pradesh. Chapter I of part XIV of the
Constitution of India deals with services under the Union and the States and
consists of Articles 308 to 313.
What is pertinent for our purpose is that
under the proviso to sub-section (7) of section 115 of the States
Reorganization Act, the conditions of service applicable immediately before the
appointed day, namely, November 1, 1956, in the case of any person referred to
inter aila in sub-section (2) of section 115 cannot be varied to his
disadvantage except with the previous approval of the Central Government.
Pension is a condition of service as held by this Court in State of Madhya
Pradesh and others v. Shardul Singh and, therefore, if any rules are to be made
by the Governor of a State varying the amount of pension to the disadvantage of
those who were in service on the appointed day, such rules would not be valid
without the previous approval of the Central Government. The amendment made by
the said Notification reduced the amount of pension payable to Government
servants who were in the service of the erstwhile State of Hyderabad and whose
services continued under the principal successor State to the State of
Hyderabad, namely, the State of Andhra Pradesh. The contention of the
Respondent, however, is that such approval has, in fact, been given by the
Central Government by the said letter dated April 28, 1973. This contention
found favour with the Division Bench of the Andhra Pradesh High Court. The said
letter dated April 28, 1973, was in reply to a letter dated March 13, 1973,
written by the Joint Secretary to the Government of Andhra 926 Pradesh, Finance
Department. In the said letter dated March 13, 1973, after referring to the
Demonetization Act and the Rules it was stated that there was an omission to
convert the maximum limit of pension of O.S. Rs. 1,000 into I.G.
Currency but in practice, however, the figure
was treated as O.S. Rs. 1,000 and all pensions sanctioned before November 1,
1956, were restricted to Rs. 857.15 being the equivalent in I.G. Currency of
O.S. Rs. 1,000. Incidentally, there is nothing on the record to bear out this
statement.
The issue of the said erratum and the
judgment the Andhra Pradesh High Court striking it down were then recited in
the said letter. It was then stated that the Government held the view that as
no one was paid more than Rs. 857.15 in I.G.
Currency prior to November 1, 1956, the
condition of service that the maximum pension admissible should be Rs. 1,000 in
I.G. Currency did not exist and that it came into being only by virtue of the
judgment delivered by the Andhra Pradesh High Court In 1970, that is, in the
said writ petition filed by Daulat Rai and two others, and that it was,
therefore, felt by the State Government that what it had done was not a
variation in the conditions of service of any employee to his disadvantage but
an action taken to give effect to an actual situation that existed prior to
November 1, 1956. The said letter then went on to state:
"It, therefore, does not appear
necessary to obtain previous approval of Government of India for this amendment
under the proviso to section 115 of the S.R. Act, 1956. Should however
Government of India consider it otherwise they may kindly accord approval for
the amendment as explained earlier." Along with the papers forwarded with
the said letter was a copy of the said Notification dated February 3, 1971.
By his reply dated April 28, 1973, to the
said letter, the Joint Secretary to the Government of India, Cabinet Secretariat,
Department of Personnel and A.R., stated as follows:
"I am directed to refer to the
correspondence resting with Shri P.R. Kale's letter No. 14154- A/462/Pen.I/72,
dated March 13, 1973 on the above subject and to say that the Government of
India agrees with the view of the State Government that since no retired
employee was paid a pension of more than Rs.
857.15 in Indian currency before 927
1.11.1956, the proposed amendment in the Hyderabad Civil Service Rules is not a
variation in the conditions of service of any employee to his disadvantage
after 1.11.1956 and does not require prior approval of the Government of India
under Section 115 of the States Reorganization Act, 1956." The Division
Bench of the Andhra Pradesh High Court took the view that "when all the
facts relating to the pension admissible to an employee governed by the
Hyderabad Civil Service Rules were placed before the Government of India and
when gave a considered opinion, that opinion is a prior approval satisfying the
requirement of section 115 (7)". We are unable to follow this line of
reasoning, By the said letter dated March 13, 1973, the Government of India was
requested to accord approval to the said amendment if it considered it
necessary so to do. By its said reply dated April 28, 1973, the Government of
India categorically stated that the said amendment did not require its prior
approval under the said section 115 and, therefore, did not give any approval
to the said amendment. To equate the not giving of approval with a prior approval
satisfying the requirements of the proviso to sub-section (7) of section 115
appears to us to be a contradiction in terms as also to say that a letter
written on April 28, 1973, was a prior approval given to an amendment which was
made more than two years earlier on February 3, 1971. The Statement made in the
said letter dated March 13, 1973 that by the said amendment the conditions of
service were not being varied was incorrect because by the said amendment the
maximum pension of Rs 1,000 per month in I.G. Currency was being reduced to the
equivalent in that currency of O.S. Rs. 1,000 per month, namely, to Rs. 857.15
per month and that too with retrospective effect from the date of the coming
into force of the rules, namely, October 1, 1954. For such an amendment the
previous approval of the Central Government was required by the proviso to
sub-section (7) of section 115. Such approval was not given and the amendment
made by the said Notification was, therefore, invalid and inoperative so far as
it concerned persons referred to in sub-section (1) and (2) of section 115 of
the States Reorganization Act. The question whether even with respect to
persons other than those referred it in the said sub-sections, the said
Notification in so far as it is retrospective is valid does not arise in these
Appeals and does not fall to be decided.
In this view of the matter it is unnecessary
to consider the other points arising in these Appeals except the Respondent's
con- 928 tention that the Appellant in each of these two Appeals had waived his
right to receive pension on the basis that the maximum pension admissible under
clause (b) of Rule 299 (1) is Rs. 1,000 and was, therefore, estopped from
claiming pension on that basis. There is no substance in this contention. This
point was never taken in the High Court.
Further, apart from the fact that there
cannot be any waiver of the right to receive pension payable under the rules
made in that behalf, there is no factual basis whatever for this contention.
The Appellant Ahmed Hussain Khan retired on April S, 1972. By [he said
Government order dated June 22, 1973, his pension was in fact fixed on the
basis that the maximum pension admissible under Rule 299 (1) (b) was Rs. 1,000
per month in I.G. Currency. This order was revised by the order dated July 2,
1973, by which his pension was fixed on the basis that the maximum pension
admissible was Rs. 857.15 per month. Within a short time thereafter in the
course of that year he filed his writ petition in the High Court and the said
writ petition was heard and disposed of by the learned Single Judge by his
judgment delivered on July 16, 1974. So far as the Appellant S. Gopalan is
concerned, he retired on April 14, 1973, and his pension was fixed by the
Government order dated May 8, 1973, on the basis that the maximum pension
admissible under the Rules was Rs. 857.15 per month. He also filed his writ
petition in the same year and it was decided along with the writ petition filed
by Ahmed Hussain Khan by the said judgment delivered on July 16, 1974.
For the reasons set out above, we hold that
the Appellant in each of these two Appeals is entitled to receive pension on
the basis that the maximum pension admissible under clause (b) of sub-rule (1)
of Rule 299 of the Hyderabad Civil Services Rules is Rs. 1,000 per month in
Government of India Currency and not Rs. 857.15 per month in that currency.
In the result, we allow both these Appeals,
reverse the judgment of the Division Bench of the Andhra Pradesh High Court and
set aside the orders appealed against. We direct the State of Andhra Pradesh to
fix within one month from today the pension payable to the Appellant in each of
these two Appeals from the date on which he became eligible for payment of
pension, that is, from the date on which he retired from Government service on
the basis that the maximum pension admissible under clause (b) of sub-rule (1)
of Rule 299 of the Hyderabad Civil Services Rules in Rs. 1,000 per month in
Government of India Currency. We further direct the State of 929 Andhra Pradesh
to pay to the Appellant in each of these two Appeals the balance of the amount
of pension payable to him for the past period according to such refixation
within one month from the date of refixation of his pension.
The Respondent will pay to the Appellant in
each of these two Appeals the costs of the Appeal in this Court and of the writ
petition and the writ appeal in the Andhra Pradesh High Court.
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