R.Gandhi
Vs. U.O.I. & ANR[1999] INSC 292 (23 August 1999)
K.Venkataswami,
Syed Shah Mohammed Quadri SYED SHAH MOHAMMED QUADRI, J.
Leave
is granted. This appeal, an off-shoot of the judgment of this Court in Common
Cause vs. Union of India [1987 (1) SCC 142], arises from the judgment and order
of a Division Bench of the Madras High Court in Writ Petition No.12381 of 1996
dated January 22, 1998. The appellant, who is a Senior Advocate and a member of
the Madras High Court Bar, filed writ petition No.12381 of 1996, a public
interest litigation, in the High Court of Madras challenging Memorandum
No.34/2/86-P&PW(G) dated August 22, 1990 issued by Department of Pension
and Pensioner's Welfare and also the letter dated September 26, 1990, applying
the above said Memorandum to the Department of Justice, and seeking declaration
that it does not apply to the Judges of the High Courts and the Supreme Court
of India. The substance of the appellant's case before the High Court was that
the Supreme Court had issued direction that payment of reduced pension on
account of commutation of a part of the pension of a Government employee should
be only for a period of 15 years "from the date of retirement", but
the Union of India issued impugned Memorandum changing it to "from the
date of commutation of pension". The Union of India, in its
counter-affidavit, stated that the Supreme Court clarified the direction given
in Common Cause (supra) in its subsequent judgment that the period of 15 years
be reckoned from the date of commutation and not from the date of retirement.
Pursuant to the subsequent judgment of this Court, Government of India revised
its earlier Memorandum No.34/2/86-P&PW dated March 5, 1987 and brought into force the impugned Memorandum. A Division
Bench of the Madras High Court, taking note of the various judgments of this
Court, dismissed the writ petition by order dated January 22, 1998. It is against that judgment, this appeal is preferred. Mr.R.
Venkataraman, learned senior counsel for the appellant, strenuously contended
that once the Government of India accepted in principle that the commuted
pension would be recovered for a period of 15 years from the date of retirement
and the same had culminated into a direction of this Court, they could not have
unilaterally changed the same to reckon the period of 15 years from the date of
commutation of pension. The learned counsel has submitted that under the
Pension Rules, a pensioner can commute a part of his pension only within one
year of the date of retirement, therefore, the stand of the Government that
those who applied for and got their pension commuted just on the verge of the
completion of 15 years would be able to claim their full pension after a few
months of deduction was without any basis. Mr. A.S. Nambiar, learned senior
counsel appearing for the respondents, has argued that the period of 15 years
is fixed on the basis that the commuted pension would normally be recovered
within the said period; when the commutation of pension and the date of
retirement synchronize, no difficulty would arise but if the pension is
commuted long after the date of retirement, the period of 15 years will be cut
short when counted from the date of retirement and in the result the pensioners
will get an undue and unintended benefit of the order of the Supreme Court. In
the case of Common Cause (supra), it was represented before this Court in a
Writ Petition under Article 32 of the Constitution that on commutation of
pension the amount paid to the pensioner in lump sum by the Government would be
recovered from his pension within a period of 12 years, there was, therefore,
no justification for the Government to pay reduced pension for the rest of the
life of the pensioner. This Court desired that the Government might give a new
look to the application of Central Civil Service (Commutation of Pension)
Rules, 1981. The Government took decision in the matter and communicated the
same through the learned Attorney General, which is in the following terms :
"(i)
Recovery from pension payable every month towards commuted value of pension
will stop on the completion of 15 years from the date of retirement on
superannuation or on the pensioner completing the age of 70 years, whichever is
later.
(ii)
The formulation will apply to all civilian pensioners in whose case the age of
retirement on superannuation is 58 years and the personnel of Armed Forces in
whose case the retirement age varies in accordance with the colour service
prescribed for the rank (attaining the age of 37/38 years or more).
(iii)
Government have taken this decision as an act of goodwill to pensioners and to
extend to them some measure of relief in the evening of their lives. It is
sincerely believed that there will be no further demand on this issue and that
the pensioners will accept the decision of the Government without dissent or
reservation.
(iv)
The decision will take effect prospectively (from April 1, 1986)." In hoc the first point, this Court considered it
unnecessary to refer to the age of commuting pensioner for restoration of full
pension to him but on taking note of the facts that the lump sum amount would
fetch benefit like interest and there is also an element of risk factor,
directed by its judgment dated December 9, 1986 that "on the expiry of 15
years from the period of retirement" full pension should be restored. In
terms of the said judgment, the Government issued Memorandum dated March 5, 1987. In Welfare Association of Absorbed
Central Government Employees in Public Enterprises vs. Union of India & Ors. [1991 (2) SCC 265], the question
canvassed before this Court was whether Central Government employees, who had
taken benefit of the judgment in Common Cause (supra) and subsequently got
absorbed in Public Enterprises, were entitled to the benefit of that judgment
again on retirement from public enterprises. While negativing their claim, it
was observed, "this court for the reasons indicated in the judgment came
to hold that on expiry of 15 years from the date of commutation the entire
pension revived." From this observation it can be noticed that the
judgment in Common Cause (supra) was neither modified nor clarified. What all
can be inferred is that this Court in Welfare Association's case (supra)
understood the words "on the expiry of 15 years from the period of
retirement" in Common Cause (supra) as "15 years from the date of
commutation....". The judgment in Welfare Association case (supra) was
rendered on April 12,
1990. It is only
pursuant to that judgment, the counter affidavit recites, the Government revised
its earlier Office Memorandum dated March 5, 1987 and brought into force the impugned
Office Memorandum dated August
22, 1990. In Bharat
Petroleum Corporation Ltd. Ex-Employees Association & Ors.
vs
Chairman & Managing Director Bharat Petroleum Corporation Ltd., Bombay
& Ors. [1993 (3) Scale 424], this Court extended the benefit of the
judgment in Common Cause (supra) to the clerical employees of Bharat Petroleum.
There also the words "period of 15 years from the period of
retirement" were understood as "15 years from the date of
commutation".
In
Welfare Association of Absorbed Central Government Employees in Public
Enterprises & Ors. vs. Union of India
& Anr. [AIR 1996 SC 1201], the relief sought by the pensioners in their
petition under Article 32 of the Constitution was : restoration of 1/3rd
portion of the fully commuted pension as per the decision of this Court in
Common Cause (supra). A three-Judge Bench, of which one of us (Venkataswami,J.)
was a member, reiterated the principles applied in the aforementioned cases.
Indeed, the date from which 15 years pension was to be reckoned was not in
issue there. This Court strikes at arbitrary action of the State and
accordingly it did in Common Cause (supra), by interdicting the arbitrary
action of the Government in paying the reduced pension as a result of
commutation of 1/3rd pension for the rest of the life of the pensioners and
issued an equitable direction to restore the full pension after 15 years
"from the period of the retirement" to the pensioners who had
commuted 1/3rd of the pension. The period of 15 years has been arrived at after
taking into consideration various factors mentioned above. It is well-settled
principle that the words in the judgment of the Court cannot be interpreted as
the words in a statute. By the said direction this Court never intended to
confer any unfair or undue advantage on the pensioners. It only ensured
fairness in the treatment of pensioners at the hands of the Government in
respect of deduction of pension consequent upon the commutation of the portion
of the pension. The decision in Common Cause (supra) has been understood in all
subsequent judgments of this Court as 15 years from the date of commutation and
we are in respectful agreement with the same. This neither prejudices the
rights of any of the parties nor confers any undue or unfair advantage upon any
party. From the above discussion, it follows that the impugned Memorandum does
not incorporate any condition contrary to the judgment of this Court in Common
Cause (supra). The High Court was, therefore, right in dismissing the writ
petition. We find no illegality in the order of the High Court. The appeal
fails and it is accordingly dismissed. No costs.
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