The
Govt. of A.P. & Ors Vs. Syed Yousuddin Ahmed [1997] INSC 660 (13 August
1997)
SUJATA
V. MANOHAR, G.B. PATTANAIK
ACT:
HEADNOTE:
PATTANAIK,
J.
This
appeal is directed against the judgment of the Full Bench of Andhra Pradesh
Administrative Tribunal in O.A.
No.
10380 of 1990. The Tribunal by the impugned order directed that 'inventive
increments' which had been given to the respondent for his meritorious work
must be held to be a personal pay and the said personal pay has to be taken
into account for determining the 'emoluments' which the respondent was drawing
on the date of his superannuation for the purpose of calculating his pension.
The respondent, admittedly, was an employee of the erstwhile Hyderabad State and after the merger of the said State and on re- organisation
he became an employee of the State of Andhra Pradesh. On the date of his superannuation on 31.121989 he was
working as a Deputy Executive Engineer in the Irrigation Department and he had
been granted four advance increments as 'incentive award' pursuant to GOMs No.
562 GAD dated 17.11.1982 and GOMs No. 127 I&CAD dated 8.4.1988. In
calculating his pension since this amount drawn by the respondent as incentive
increment was not taken into account he approached the Administrative Tribunal.
The Tribunal by the impugned order having directed that the incentive
increments drawn by the respondent on the date of his superannuation should be
taken as a part of his emoluments and, therefore, should be taken into account
for determination of his pension, the State, has come up in appeal.
The
learned counsel for the appellant contended that the pension of the State
Government employee has to be determined in accordance with the Andhra Pradesh
Revised Pension Rules of 1980, which has been framed under proviso to Article
309 of the Constitution, hereinafter referred to as 'the Rules'. Under the
Rules the expression 'emoluments' means 'Pay' as defined in Rule 9(21) (a) (i)
of the Fundamental Rules which a Government servant was receiving immediately
before his retirement or on his death. In Rule 9(21) (a) (i) of the Fundamental
Rules the expression 'Pay' means : the pay, other than special pay or 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 reasons of his position in a cadre. Therefore, the 'incentive
award' which the respondent was drawing while working as a Deputy Executive
Engineer cannot form a part of 'Pay' as defined in Rule 9(21) (a) (i) of the
Fundamental Rules and consequently would not form a part of 'emoluments' within
the ambit of Rule 31 of the Rules for the purpose of calculation of pension of
the Government servant. The Tribunal, therefore, committed gross error in directing
the said 'incentive award' should be taken into account for determining the
pension of the respondent. The learned counsel for the respondent on the other
hand contended, Rule 31 which was amended in 1988 will not govern the case
determining pension of the employees who were already in service and it would
apply to those who joined the service after the amendment came into force. The
learned counsel further submitted that in view of the proviso to Rule 2 of the
Fundamental Rule the Pension Rules could not have been amended to the
disadvantage of a person already in service and consequently the amended
provisions of Rule 31 of the Revised Pension Rules must be declared to be
invalid. Though the Tribunal did not go into the said question even though raised,
the respondent is entitled to raise the question in support of the order passed
in favour of the respondent by the Tribunal.
In
view of the rival submissions at the Bar the questions that arise for our
consideration are:
(i) Is
the amended Rule 31 of the Pension Ruls has any application to the existing employees
lake the respondent or it applies to those employees who would join the service
after the amendment has come into force? (ii) Whether in calculating the
pension of the respondent, the amount which he was receiving as 'incentive
award' on the date of his superannuation can be taken as a part of emoluments
within the meaning of Rule 31 of the Revised Pension Rules? (iii) Is the
proviso to Rule 2 of the Fundamental Rules any way affects the amendment of the
Pension Rules as contended by learned counsel for the respondent? So far as the
contention raised by the counsel appearing for the respondent that the amended
Rule 31 of the Pension Rules will have no application to the existing employees
of the Government is concerned, we do not find any substance in the same. The
Pension Rules is a Rule framed by the Governor in exercise of the power under
proviso to Article 309 of the Constitution. The relationship between the
Government and its servant is not like and ordinary contract of service between
a master and servant but a legal relationship something in the nature of
status. Origin of Government service is contractual. But once appointed to his
post or office, the government servant acquires a status and his rights and
obligations are no longer determined by consent of both parties,. but by
statute or statutory rules which may be framed and altered unilaterally by the
Government. The Legislature under Article 309 of the Constitution and the
Governor under proviso to Article 309 of the Constitution can make law
determining the service conditions of the Government employees and such law can
also be retrospectively made. But in the case in hand question of retrospective
application of the amended provisions of Rule 31 of the Revised Pension Rules
really does not arise.
It
becomes applicable to all the employees who were in service on the date the
amended rules came into force for the purpose of finding out the meaning of the
expression 'emoluments' on the basis of which the pension of the employee has
to be calculated on superannuation. In this view of the matter the contention
of the learned counsel for the respondent that Rule 31 would apply only to
those employees who joined service after the amended rules came into force is
wholly without substance and the same is accordingly rejected.
Coming
now to the second question the answer would depend upon an interpretation of
Rule 31 of the Revised Pension Rules and Rule 9(21) (a) (i) of the Fundamental
Rules. Under Rule 31 of the Pension Rules the expression 'emoluments' would
mean 'Pay' as defined in Rule 9(21) (a) (i) of the Fundamental Rules which a
Government servant was receiving immediately before his retirement. Rule 9(21)
(a) (i) of the Fundamental Rules defines 'Pay' to mean ; 'Pay' means the amount
drawn monthly by a Government servant as - (i) the pay, other than special pay
or 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 reasons of his position in a cadre;
The
expression Special Pay' has been defined in Fundamental Rules 9(25) to mean an
addition, of the nature of pay, to the emoluments of a post or of a Government
servant granted in consideration of- (a) the specially arduous nature of the
duties; or (b) a specific addition to the work or responsibility The expression
'personal pay' has been defined in Rule 9 (23) of the Fundamental Rules to
mean, additional pay granted to the Government servant, (a) ............
(b) in
exceptional circumstances, on other personal considerations.
The
learned counsel appearing for the respondent had submitted that in view of the clarificatory
circular issued by the General Administration (AR&T I) Department dated
25.5.84 to the effect that the increments with cumulative effect granted to a
government servant the terms and conditions governing the grant of Family
Planning Incentive increment would apply and since under the terms and
conditions governing the grant of Family Planning incentive issued by the
Government of Andhra Pradesh under Memorandum No. 402/D2/78-M&H dated
5.5.1978 such advance increments have been held to be 'personal pay' to be
reckoned as basic pay for the purpose of pension the respondent is entitled to
get the same the so far as the incentive increments awarded in his favour which
he was drawing on the date of his superannuation. We are, however, not in a
position to accept this submission of the learned counsel for the respondent.
It is no doubt true, that under the Family Welfare Programme an incentive
granted to the government servant therein the Government of Andhra Pradesh had
issued an Administrative Order stating therein that the advance increments
sanctioned for undergone sterilization operation in the lower post or higher
post shall continue to be available as' personal pay' to be reckoned as basic
pay for the purpose of pension etc. The incentive increment which is granted to
a government servant for arduous nature of duty discharged by a government
servant though would not directly come under the purview of the Medical and
Health Department Memorandum dated 5.5.7 relating to grant of increments for
undergoing sterilization operation, yet in view of the Government letter dated
25.5.84 issued by the General Administration Department making terms and
conditions of governing the grant of Family Planning increment incentive
applicable, the said incentive increment can be held to be a 'personal pay' of
the respondent. Bu neither the aforesaid Health Department Memorandum dated
5.5.1978, nor the Government letter dated 25.5.84, issued by the General
Administration Department could make aforesaid incentive increment to be part
of the emoluments under the Provisions of Rule 31 of the Pension Rules so that
the respondent can claim inclusion of the said amount for determining his
pension. It may be stated here that for the purpose of Rule 31 of the Pension
Rules 'emoluments' of government servant would mean the parry which he is drawing
as defined in Rule 9(21)(a)(i) of the Fundamental Rules.
Said
Rule 9(21)(a)(i) clearly excludes the' especial pay' or 'personal pay' granted
to a government servant in view of his personal qualifications or otherwise
from the purview of the expression 'pay' and, therefore, whether the 'incentive
award' is held either a 'special pay' or 'personal pay' the same would not form
part of 'pay' under Rule 9(21)(a)(i) of the Fundamental Rules and consequently
would not form part of emoluments under Rule 31 of the Rules for being taken
into account for computation of pension of the respondent.
The
Tribunal, therefore, is wholly in error in directing that the 'incentive award'
granted to the respondent may be taken into account for determining his
pension. The contention of the learned counsel appearing for the respondent, on
this score is devoid of any force.
So far
as the third question is concerned, undoubtedly the Tribunal has not gone into
the issue and as the question had been raised before the Tribunal, we permitted
the respondent to raise the question also in this proceeding.
The
counsel for the respondent urged that in view of the proviso to Rule 2 of the
Fundamental Rules which was inserted by Section 7 of Act 23 of 1984, no rule
can be modified or replaced by the Governor under Article 309 of the
Constitution of India to the disadvantage of any person already in service
except in respect of matters relating to the age of superannuation and as such
the Pension Rules could not have been amended to the disadvantage of the
respondent who was already in service. We do not find any force in the
aforesaid contention since the proviso in question prohibits modification or
replacement of provisions of Fundamental Rules itself in exercise of power
under Article 309 of the Constitution to the disadvantage of a person already
in service. It has no reference to any other Rule which a Governor could frame
under proviso to Article 309 of the Constitution. In that view of the matter
the proviso to Rule 2 of the Fundamental Rules cannot effect the power of the
Governor to amend the Pension Rules in exercise of his power under the proviso
to Article 309 of the Constitution. The said contention is devoid of any force.
In
view of our conclusion on question no. 2 the impugned order of the Tribunal
cannot be sustained and we accordingly set aside the same. It may be stated
that the 'incentive award' which the respondent was drawing while continuing as
Deputy Executive Engineer cannot be held to be a part of 'emoluments' for the
purpose of determining the pension of the respondent under the Pension Rules.
The OA No. 10380 of 1990 filed before the Andhra Pradesh Administrative
Tribunal stands dismissed and this appeal is allowed but in the circumstances
there will be no order a to costs.
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