1    

REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO. 12040 OF 2018   

(arising out of SLP (C) No. 24745 of 2015)  

UNION OF INDIA & ORS.             ...APPELLANT(S)   

VERSUS  

DR. O.P. NIJHAWAN & ORS.             ...RESPONDENT(S)   

WITH  

CIVIL APPEAL NO. 12112 OF 2018   

(arising out of SLP (C) No. 15594 of 2016)  

CIVIL APPEAL NOS. 12125-12127 OF 2018   

(arising out of SLP (C) Nos. 7853-7855 of 2016)  

CIVIL APPEAL NOS. 12143-12144 OF 2018   

(arising out of SLP (C) Nos. 4271-4272 of 2016)  

CIVIL APPEAL NO. 12113 OF 2018   

(arising out of SLP (C) No. 27273 of 2016)  

CIVIL APPEAL NO. 12139 OF 2018   

(arising out of SLP (C) No. 35861 of 2016)  

CIVIL APPEAL NO. 12114 OF 2018   

(arising out of SLP (C) No. 15416 of 2016)

2    

CIVIL APPEAL NO. 12115 OF 2018   

(arising out of SLP (C) No. 26723 of 2016)  

CIVIL APPEAL NO. 12116 OF 2018   

(arising out of SLP (C) No. 16725 of 2016)  

CIVIL APPEAL NO. 12117 OF 2018   

(arising out of SLP (C) No. 13531 of 2016)  

CIVIL APPEAL NO. 12142 OF 2018   

(arising out of SLP (C) No. 38068 of 2016)  

CIVIL APPEAL NO. 12042 OF 2018   

(arising out of SLP (C) No. 16856 of 2016)  

CIVIL APPEAL NO. 12099 OF 2018   

(arising out of SLP (C) No. 15927 of 2016)  

CIVIL APPEAL NOS. 12137-12138 OF 2018   

(arising out of SLP (C) Nos. 22848-22849 of 2016)  

CIVIL APPEAL NO.12109 OF 2018   

(arising out of SLP (C) No. 308 of 2017)  

CIVIL APPEAL NO. 12101 OF 2018   

(arising out of SLP (C) No. 301 of 2017)  

CIVIL APPEAL NOS. 12140-12141 OF 2018   

(arising out of SLP (C) Nos. 38066-38067 of 2016)

3    

CIVIL APPEAL NO. 12128 OF 2018   

(arising out of SLP (C) No. 17000 of 2016)  

CIVIL APPEAL NO.12098 OF 2018   

(arising out of SLP (C) No. 23922 of 2016)  

CIVIL APPEAL NOS.12135-12136 OF 2018   

(arising out of SLP (C) Nos. 23104-23105 of 2016)  

CIVIL APPEAL NO. 12043 OF 2018   

(arising out of SLP (C) No. 27438 of 2016)  

CIVIL APPEAL NO.12104 OF 2018   

(arising out of SLP (C) No. 302 of 2017)  

CIVIL APPEAL NOS.12133-12134 OF 2018   

(arising out of SLP (C) Nos. 23110-23111 of 2016)  

CIVIL APPEAL NO.12106 OF 2018   

(arising out of SLP (C)No. 305 of 2017)  

CIVIL APPEAL NOS.12130-12132 OF 2018   

(arising out of SLP (C)CC Nos. 11456-11457 of 2016)  

CIVIL APPEAL NO.12111 OF 2018   

(arising out of SLP (C)No. 309 of 2017)  

CIVIL APPEAL NO.12044 OF 2018   

(arising out of SLP (C)No. 13640 of 2017)

4    

CIVIL APPEAL NO.12129 OF 2018   

(arising out of SLP (C)No. 23326 of 2016)  

CIVIL APPEAL NO. 12145 OF 2018   

(arising out of SLP (C)No. 34736 of 2016)  

CIVIL APPEAL NO. 12146 OF 2018   

(arising out of SLP (C)No. 28273 of 2016)  

CIVIL APPEAL NOS.12147-12149 OF 2018   

(arising out of SLP (C)Nos. 32096-32098 of 2016)  

CIVIL APPEAL NO. 12100 OF 2018   

(arising out of SLP (C)No. 30128 of 2016)  

CIVIL APPEAL NO.12045 OF 2018   

(arising out of SLP (C)No. 36373 of 2016)  

CIVIL APPEAL NO. 12150 OF 2018   

(arising out of SLP (C)No. 34724 of 2016)  

CIVIL APPEAL NO.12102 OF 2018   

(arising out of SLP (C)No. 32349 of 2016)  

CIVIL APPEAL NO.12103 OF 2018   

(arising out of SLP (C)No. 32357 of 2016)  

CIVIL APPEAL NO.12105 OF 2018   

(arising out of SLP (C)No. 32350 of 2016)

5    

CIVIL APPEAL NO. 12107 OF 2018   

(arising out of SLP (C)No. 35332 of 2016)  

CIVIL APPEAL NO. 12108 OF 2018   

(arising out of SLP (C)No. 32340 of 2016)  

CIVIL APPEAL NO. 12110 OF 2018   

(arising out of SLP (C)No. 32347 of 2016)  

CIVIL APPEAL NO.12229 OF 2018   

(arising out of SLP (C)No. 14514 of 2017)  

CIVIL APPEAL NO. 12153 OF 2018   

(arising out of SLP (C)No. 9464 of 2017)  

CIVIL APPEAL NOS. 12095-12096 OF 2018   

(arising out of SLP (C)Nos. 31554-31555 of 2018)  

CIVIL APPEAL NO.12047 OF 2018   

(@ out of SLP (C)No.33019 (D. No. 14576) of 2018)  

CIVIL APPEAL NO.12154-12157 OF 2018   

(@ out of SLP (C)NOS.33134-33137(D.No.14578) of 2018)  

CIVIL APPEAL NOS. 12151-12152 OF 2018   

(arising out of SLP (C)Nos. 30035-30036 of 2017)  

CIVIL APPEAL NO. 12046 OF 2018   

(arising out of SLP (C)No. 25929 of 2017)

6    

CIVIL APPEAL NO. 12041 OF 2018   

(arising out of SLP (C)No. 10820 of 2018)  

CIVIL APPEAL NO. 12120 OF 2018   

(arising out of SLP (C)No. 10825 of 2018)  

CIVIL APPEAL NO. 12068 OF 2018   

(arising out of SLP (C)No. 16578 of 2018)  

CIVIL APPEAL NO. 12119 OF 2018   

(arising out of SLP (C)No. 24792 of 2018)  

AND  

CIVIL APPEAL NO. 12118 OF 2018   

(arising out of SLP (C)No. 6045 of 2017)  

J U D G M E N T  

ASHOK BHUSHAN,J.  

This bunch of appeals raising common questions of  

law and facts have been heard together and are being  

decided by this common judgment.  All the appeals have  

been filed by the Union of India through Ministry of  

Defence and others questioning the judgment of High

7    

Court and judgments of Central Administrative Tribunal,  

Principal Bench, Delhi and different other benches of  

Central Administrative Tribunals.  The Central  

Administrative Tribunal, Principal Bench as well as  

different other benches of Central Administrative  

Tribunals have allowed the original applications filed  

by respondents herein, who have been working as  

Scientists in Department of Defence Research and  

Development Organisation, Department of Atomic Energy  

and Department of Space, all under Ministry of Defence.   

The Union of India has sanctioned special pay of  

Rs.2,000/- w.e.f. 01.01.1996 and Rs.4,000/- w.e.f.  

01.01.2006 to the Scientists working in the above  

mentioned three departments.   

2. Original applications were filed by the  

respondents herein claiming direction to the Union of  

India and others for reckoning the special pay for  

pension and pensionary purpose.  The respondents in  

this batch of appeals had been working in the  

Department of Defence Research and Development  

Organisation, Department of Atomic Energy and

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Department of Space.  The issues raised before the  

Central Administrative Tribunals by the respondents/  

Scientists working in the above mentioned three  

departments and the reliefs claimed therein were  

similar in nature and Principal Bench of Central  

Administrative Tribunal and other benches had allowed  

the claim for treating the above special pay for  

pensionary benefits.  The High Courts have also  

dismissed the writ petitions where the orders of  

Central Administrative Tribunals were challenged.   

Union of India being aggrieved by the said judgments  

have come up in these appeals.    

3. Issues raised by Scientists of above mentioned  

three departments being the same, it shall be  

sufficient to notice the pleadings in Civil Appeal No.  

12040 of 2018 – Union of India & Ors. Vs. Dr. O.P.  

Nijhawan & Ors. for deciding this bunch of appeals,  

which is being treated as leading appeal.    

4. We now proceed to notice the facts in Civil Appeal  

No. 12040 of 2018 – Union of India & Ors. Vs. Dr. O.P.  

Nijhawan & Ors.

9    

5. The respondents Dr. O.P. Nijhawan and others were  

serving as Scientists ‘G’ in the Defence Research &  

Development Organisation (hereinafter referred to as  

“DRDO”), Ministry of Defence from where they retired  

from service.  Scientist ‘G’ of DRDO were working in  

the scale of Rs.5900-7300 along with  

Scientist/Engineers-H working in the Department of  

Atomic Energy (hereinafter referred to as “DAE”) as  

also Department of Space (hereinafter referred to as  

“DOS”).  The Fifth Central Pay Commission recommended  

a common revised pay scale of Rs.18400-22400 for the  

pay scales of Rs.5900-7300 and Rs.5900-6700.  The scale  

given to Scientific Officer H and Scientists ‘G’ were  

merged in common scale by Fifth Central Pay Commission  

Scales and under Sixth Central Pay Commission scale of  

Rs. 18400-22400 was revised as Rs.37400-67000.  The  

Scientists of the aforementioned three Scientific  

Departments, i.e. DRDO, DOS and DAE made a case for  

suitably compensating the Scientists/Engineers in the  

pay scale of Rs. 5900-7300 (pre-revised).  Consequent  

to Peer Review, the Government of India, Ministry of  

Defence decided to sanction special pay of Rs. 2,000/-

10    

per month to the Scientists in the pay-scale of Rs.  

18,400-22400 in lieu of a separate higher pay scale.   

An Order dated 03.02.1999 was issued by all the three  

above Departments.  The Order dated 03.02.1999  

sanctioned the above pay scales from 01.01.1996.   

6. An order dated 14.05.1999 was issued by Ministry  

of Defence, DRDO intimating that a proposal to pay  

special pay as part of pay as defined under Fundamental  

Rule 9(21) for all purposes is being taken up  

separately with Ministry of Defence, further  

instructions in this regard will be issued after  

obtaining the approval of the Ministry.  Government of  

India, DOS issued an order dated 12.08.1999, where it  

was mentioned that special pay will not be treated as  

part of pay for the purposes like DA, HRA, pension etc.   

The Original Application No. 1135 of 2002 was filed by  

Scientists working in the Department of Space  

questioning the clarificatory order issued by O.M.  

dated 12.08.1999 regarding non-inclusion of special pay  

as part of the pension.  The Principal Bench of Central  

Administrative Tribunal, Delhi allowed the OA by order

11    

dated 14.05.2003 holding that special pay of Rs.2,000/-  

per month w.e.f. 01.01.1996 shall be treated as part  

of pay for the purposes of pensionary benefit.  The  

Department of Space has also issued a consequential  

order dated 11.07.2003 modifying its earlier order  

dated 12.08.1999 to the effect that special pay will  

not be treated as part of pay for the purposes of D.A.  

but the same may be treated as part of pay for the  

pensionary benefits w.e.f. 01.01.1996.  On 13.07.2004,  

DAE relying on the order of the Central Administrative  

Tribunal under O.A. No. 1153 of 2002 extended the  

benefit of special pay of Rs.2,000/- for pensionary  

benefit.  The Scientists working in the DRDO had also  

filed O.A. No. 184 of 2006 praying that special pay of  

Rs.2,000/- be treated for the purposes of pension,  

which O.A. was allowed by order dated 29.03.2007  

holding that special pay shall also be treated for  

pensionary benefit.  The Union of India filed a Writ  

Petition No. 267 of 2008 against the judgment of  

Central Administrative Tribunal, Hyderabad dated  

29.03.2007, which writ petition was dismissed by the  

High Court of Andhra Pradesh by its judgment dated

12    

25.09.2008.  A SLP (C) No. 4842 of 2009 was filed  

against the judgment of High Court of Andhra Pradesh  

at Hyderabad, which was dismissed by this Court on  

29.04.2009 by following order:-  

“ Heard.   

Delay condoned.   

On the facts of the present case, we are  

not inclined to interfere with the impugned  

judgment and order. The special leave  

petition is dismissed. However, the question  

of law is left open.”  

7. The Ministry of Defence, DRDO issued an order dated  

13.05.2009, which provided that special pay of  

Rs.2,000/- per month granted to Scientist in the pay  

scale of Rs.18400-22400 w.e.f. 01.01.1996 and special  

pay of Rs.4,000/- per month to Scientist in pay band-4  

(Rs.37400-67000) with Grade Pay of Rs.10,000/- per  

month w.e.f. 01.01.2006 is to be counted for pension  

and pensionary benefits.  It is to be noted that special  

pay of Rs.2,000/- was increased as Rs.4,000/- w.e.f.  

01.01.2006.  The respondent Dr. O.P. Nijhawan and  

others filed an O.A. No. 1750 of 2012 before Central  

Administrative Tribunal, Principal Bench, New Delhi  

complaining that although by order dated 13.05.2009

13    

sanction of the President to count special pay of  

Rs.2,000/- per month granted to Scientists in the pay  

scale of Rs.18400-22400 w.e.f. 01.01.1996 and special  

pay of Rs.4,000/- per month to Scientist in pay band-4  

(Rs.37400-67000) with Grade Pay of Rs.10,000/- per  

month w.e.f. 01.01.2006 for pension and pensionary  

benefits, the said order has not been implemented.  It  

was further pleaded that several Scientists who have  

filed cases before Hyderabad Bench, Bangalore Bench and  

Principal Bench, New Delhi, where orders were issued,  

consequently with regard to certain Scientists of that  

grade, the order was implemented but still with regard  

to the applicants, the benefit has not been extended.   

It was pleaded that grant of similar benefit to some  

colleagues of applicants and not extending the said  

benefit to them is arbitrary and discriminatory.  The  

respondents herein prayed for direction to the  

respondents in O.A. to revise the pension and  

pensionary benefits of the Scientists ’G’ of DRDO in  

terms of their own order dated 13.05.2009.  It was also  

prayed that respondents be directed to pay arrears of  

pension and pensionary benefits to the applicants

14    

taking into account Rs.2,000/- or Rs.4,000/- as special  

pay and also interest, if revision of pension and  

pensionary benefits taken unduly long period.  The  

Central Administrative Tribunal, Principal Bench, New  

Delhi allowed the O.A. No. 1750 of 2012 vide its  

judgment dated 22.01.2013 and issued following  

directions:-  

“(1)  The claim of the applicants are allowed  

for reckoning the special pay of Rs.2,000/-  

admissible from 01.01.1996 and Rs.4,000/-  

admissible from 01.01.2006 in the respective  

grade pays as enumerated in the OM dated  

13.05.2009 for pension and pensionary  

purposes.  

(2) It is further directed that those who  

fall within the eligible categories as cited  

above are to be allowed this benefit without  

their being required to approach this  

Tribunal.  

(3)  This, of course, is a measure of  

exception and leaves the question of law  

undetermined.”   

8. Against the judgment and order of the Tribunal  

dated 22.01.2013, Union of India filed a Writ Petition  

No. 3095 of 2014 in the Delhi High Court, which writ  

petition has also been dismissed by the Division Bench  

vide its judgment dated 18.07.2014.  Civil Appeal No.  

12040 of 2018 – Union of India & Ors. Vs. Dr. O.P.

15    

Nijhawan & Ors. has been filed against the judgment of  

Delhi High Court dated 18.07.2014.    

9. As noted above, most of other appeals in this bunch  

has been filed against the judgment of the Central  

Administrative Tribunal, Principal Bench, New Delhi and  

other Benches, wherein, the Central Administrative  

Tribunal has granted same relief to the Scientists  

working in the Departments of DRDO, DAE and DOS.    

10. We have heard Ms. Pinky Anand, learned Additional  

Solicitor General for India and Colonel Mr.  

Balasubramanian for the appellants.  Shri Nidhesh  

Gupta, learned senior counsel as well as several other  

learned advocates appearing for respondents in  

different appeals have also been heard.    

11. Learned counsel for the appellants submits that  

judgments and orders passed by the Central  

Administrative Tribunals and the High Court are in  

teeth of Rule 9(21)(a)(i) of the Fundamental Rules and  

Rule 33 of the Central Civil Services Pension Rules,  

1972 (hereinafter referred to as “1972 Rules).  The

16    

definition of pay as contained in Fundamental Rule  

9(21)(a)(i) clearly excludes “special pay” from the  

definition of pay, hence the “special pay” of  

Rs.2,000/- w.e.f. 01.01.1996 and Rs.4,000/- w.e.f.  

01.01.2006 cannot be included in pay, hence has to be  

excluded from the definition of emoluments as defined  

in Rule 33 of 1972 Rules.  The judgment of Central  

Administrative Tribunals as well as the High Court  

holding that special pay is to be included for  

computation of pension cannot alter the legal position,  

the language of a Statute, i.e. Rule 9(21)(a)(i), which  

is clear and unambiguous.  Further the fact that  

against the earlier order passed by Central  

Administrative Tribunals and the High Court, writ  

petitions and SLPs filed by Union of India were  

dismissed, shall not alter the legal position.  The  

Special Leave Petitions were dismissed in limine and  

this Court in one of the Special Leave Petitions has  

expressly left the question of law open.  Further the  

fact that in number of other similarly situated  

Scientists, the order passed by the Central  

Administrative Tribunals/High Courts have attained

17    

finality and have also been implemented by the Union  

of India, cannot preclude this Court from deciding the  

question of law left open.  Reliance was placed on the  

judgment of this Court in Col. B.J. Akkara (Retd.) Vs.  

Government of India and Others, (2006) 11 SCC 709.  It  

is submitted that there is huge financial implication  

on the Union of India due to the orders passed by the  

Central Administrative Tribunals and High Courts.  It  

is lastly submitted that Seventh Central Pay Commission  

has discontinued the special pay to the Scientists,  

which Resolution has been notified by Notification  

dated 01.07.2017.      

12. Learned counsel for the respondents refuting the  

submission of appellants contends that the special pay  

of Rs.2,000/- w.e.f. 01.01.1996 was granted in lieu of  

a separate high pay scale, which is clear from the  

order dated 03.02.1999 sanctioning the special pay,  

hence, it was not in the nature of special pay as  

defined in Fundamental Rule 9(25), thus, was not  

eligible for exclusion from the definition of pay as  

contained in Rule 9(21)(a)(i).  Only special pay, which

18    

is covered within the definition of Fundamental Rule  

9(25) deserves to be excluded from the definition of  

pay.  Thus, the special pay of Rs.2,000/- granted to  

the respondents in lieu of a separate higher pay scale  

is eligible for computation of pensionary benefits and  

the Central Administrative Tribunals and the High  

Courts have not committed any error in allowing the  

claim of the respondents.  Further, the relief to the  

respondents have been granted since similarly situated  

respondents have already been granted the benefit by  

the Union of India itself.   Non-inclusion of special  

pay of Rs.2,000/- or Rs.4,000/- for computation of  

pension shall be depriving the respondents of the right  

of pension, which they have earned by rendering  

valuable services to Union.  

13. We have considered the submissions of the learned  

counsel for the parties and have perused the records.   

14. From the pleadings on the record and the  

submissions made by the learned counsel for the  

parties, following issues arise for consideration in  

this batch of appeals:-

19    

(i) Whether the appellants are precluded to  

question the impugned judgment of Central  

Administrative Tribunals/High Courts  

directing for inclusion of special pay of  

Rs.2,000/- or Rs. 4,000/- for computation of  

pension, since at earlier stages, similar  

orders passed by Central Administrative  

Tribunals/High Courts have attained finality  

due to dismissal of Special Leave Petitions  

filed by the Union of India?  

(ii) Whether the Orders issued by the Union of  

India implementing the orders by giving  

effect to the decisions of the Central  

Administrative Tribunals and High Court  

directing for inclusion of special pay of  

Rs.2,000/- or Rs.4,000/- in computation of  

pension, the Union of India is  

precluded/estopped from questioning the  

earlier decisions?  

(iii) Whether special pay of Rs.2,000/- or  

Rs.4,000/- sanctioned to the Scientists in  

Departments of DRDO, DAE and DOS w.e.f.

20    

01.01.1996/01.01.2006 respectively has to be  

included in the definition of pay as  

contained in Rule 9(21)(a)(i) for the  

purposes of computation of pensionary  

benefit under 1972 Rules?  

15. Before we enter into the respective submissions of  

the learned counsel for the parties on the above  

issues, it is necessary to look into the statutory  

provisions pertaining to computation of pension and  

some of the orders issued by the Union of India.    

16. Rule 9(21)(a)(i) of the Fundamental Rules defines  

“Pay”, which is as follows:-  

(21) (a) "Pay" means the amount drawn monthly  

by Government servant as-  

(i) the pay, other than special pay or pay  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  

reason of his position in a cadre, and  

(ii) overseas pay, special pay and personal  pay, and  

21    

(iii) any other emoluments which may be  specially classed as pay by the  

President.  

17. The special pay has been defined in Fundamental  

Rule 9(25), which is to the following effect:-  

(25) "Special Pay" means 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.  

For orders regarding grant of Special Pay  

to various categories of Government servants  

and treatment thereof for the purpose of  

fixation of pay on promotion, see Appendix-8  

in this Compilation.   

For orders regarding grant of Special Pay  

in the name of Deputation (Duty) Allowance  

on the transfer of Central Government  

servants to other Government Departments,  

Companies, Corporations, etc., see Appendix-

5 in this Compilation.   

18. The payment of pension to the Central Government  

employees is regulated by Central Civil Services  

Pension Rules, 1972.  Rule 33 of the 1972 Rules defines  

emoluments, which is to the following effect:-

22    

33.    Emoluments  

  [The expression `emoluments' means basic  

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 the date of his death; and  

will also include non-practising allowance  

granted to medical officer in lieu of private  

practice.]  

  [EXPLANATION. - Stagnation increment  

shall be treated as emoluments for  

calculation of retirement benefits.]  

xxxxxxxxxxxxxxxxxxxxx  

19. As noted above, under Fourth Central Pay  

Commission, Scientists ‘G’ were receiving pay scale of  

Rs.5900-6700 and Scientists ‘H’ were getting pay scale  

of Rs. 5900-7300.  On implementation of Fifth Central  

Pay Commission, both the above pay scales were merged  

into a single pay scale of Rs.18400-22400 and were  

designated as Scientific Officer ‘H’.  On peer review,  

recommendation was made to sanction of special pay of  

Rs.2,000/- w.e.f. 01.01.1996.  An order dated  

03.02.1999 was issued in this regard, relevant portion  

of the order is as follows:-  

“NO. DRDO/US101-A/V CPC/MPD/D (R&D)  

GOVERNMENT OF INDIA  

DEPARTMENT OF DEFENCE RESEARCH &  

DEVELOPMENT NEW DELHI

23    

03 Feb 1999  

To,  

The Director General Research &  

Development, Defence Research &  

Development Organization, Ministry of  

Defence, New Delhi.  

 Subject:-  INCENTIVES FOR SCIENTISTS  

The undersigned is directed to state that  

the question of providing incentives to  

scientists in the Department has been  

examined by the Govt. keeping in view the  

role played by them in the development of  

high technology and systems for strategic  

applications.  Taking all relevant factors  

into account and in order to attract, retain,  

inspire and motivate scientists to give their  

best contributions.  The President is pleased  

to sanction following:-  

2. With effect from Jan 01, 1996  

(1) Special pay of Rs.2,000/- p.m. to  scientists in the pay scale of Rs.18,400-

22,400, in lieu of a separate higher pay  

scale, after peer review.  

xxxxxxxxxxxxxxxxxx”  

20. As noticed above, there were certain  

clarifications issued by different office memorandum  

for example, office memorandum dated 12.08.1999 issued  

by Government of India, Department of Space that  

special pay will not be treated as part of pay for the  

purposes like, DA, HRA etc., which led filing of

24    

original applications in the Central Administrative  

Tribunal questioning the clarificatory order issued by  

the Government of India and Central Administrative  

Tribunal had allowed the claim of Scientists to reckon  

the special pay for the purpose of pension.  The  

Government of India, Ministry of Defence, DRDO has  

specifically issued an order dated 13.05.2009, where  

the Government decided to count the aforesaid special  

pay for pension and pensionary benefits.  Office  

memorandum dated 13.05.1999 is to the following  

effect:-  

“Tele: 23007252  No. CHRD83101/Incentives-6th  

CPC/C/P/01  

Ministry of Defence,  

Defence Research & Development Org  

Dte of Human Resource Development  

‘B’ Block, DRDO Bhawan  

New Delhi – 110 105.  

13th May 2009  

The Director   

(All Labs/Estts)  

Subject: INCENTIVES FOR SCIENTISTS – COUNTING  

OF SPECIAL PAY FOR PNEIONSARY  

PURPOSES.  

A copy of GOI, Ministry of Defence letter  

No. DHRD/85101/INCENTIVES/VI-

CPC/C/P/01/1376/2009/D(R&D) dated 13 May,

25    

2009 on the above subject is forwarded  

herewith.  

2. As per the above Govt, letter the special  

pay of Rs.2,000/- p.m. granted to Scientist  

in the pay scale of Rs.18400-22400 w.e.f. 01  

Jan 1996 and special pay of Rs.4,000/- p.m.  

to Scientist in Pay Band-4 (Rs.37400-67000)  

with Grade Pay of Rs.10,000/- p.m. w.e.f. 01  

Jan 2006 is to be counted for pension and  

pensionary benefits.    

3.  It is requested that the necessary action  

may be initiated to revise the PPO of all the  

Scientists ‘G’ who have retired /  

superannuated accordingly.  

Sd/-  

(T. Chandra Banu)  

Additional Director, HRD  

For DGR&D  

xxxxxxxxxxxxxxxxxx”  

21. As noted above, relying on the said memorandum,  

the respondents have filed original applications  

claiming that with regard to them, the orders have not  

been implemented and they have been denied computation  

of special pay for purposes of pension, which claim was  

ultimately allowed by the Central Administrative  

Tribunal vide its order dated 22.01.2003 against which  

order, Delhi High Court has dismissed the writ

26    

petition, which led in filing the Civil Appeal in the  

leading case by the Union of India.   

22. We now take up first and second issue together.   

There are two aspects, which need to be noticed in  

respect of above issues.  Firstly, original  

applications filed by Scientists similarly situated was  

allowed by Central Administrative Tribunal against  

which few of the writ petitions were also dismissed by  

the High Court and against the judgment of the High  

Court or the Central Administrative Tribunals, matter  

was carried by Union of India in this Court where SLPs  

were dismissed.  One of the orders passed by this Court  

in SLP (C) No. 4842 of 2009 has been brought as Annexure  

P1 in leading Civil Appeal.  In order dated 20.04.2009,  

this Court held “On the facts of the present case, we  

are not inclined to interfere with the impugned  

judgment and order. The special leave petition is  

dismissed. However, the question of law is left open.”   

There were few other SLPs filed by the Union of India,  

which were dismissed in limine.  SLPs having been  

dismissed in limine, the appellants are not precluded

27    

from raising the issues, which have been sought to be  

raised in these appeals in this Court.  This was also  

the consequences of the question of law being left open  

by this Court as noticed above.  We, thus, are not  

persuaded to accept the submission of learned counsel  

for the respondents that Union of India is precluded  

from raising the issues on question of law, which was  

earlier left open by this Court.  Thus, we have to  

proceed to decide the question of law as raised by the  

appellants. Coming to the second aspect of the matter,  

i.e. the appellants itself having decided to extend the  

benefit of special pay for computation of pension,   

whether it is still open for the appellants to raise  

the issue?  We have already noticed the order dated  

13.05.2009 of Government of India, which had directed  

for counting of special pay for pensionary purposes.   

We have already noticed that in the year 1999 itself,  

a clarificatory order was issued by the Union of India  

that special pay shall not be treated as a part of pay  

for the purposes of pension.  The above stand, it  

appears, was taken by the Government relying on the  

definition of pay as given under Fundamental Rule

28    

9(21)(a)(i), thereafter came various orders of the  

Central Administrative Tribunals as noticed above,  

where direction was issued to compute by adding the  

special pay in the pay for computation of pension,  

details of which, we have already noticed above.  The  

Government of India having already implemented the  

aforesaid orders can it still question its own  

decision, where the benefit has been extended.    

23. Learned counsel for the appellants has relied on  

judgment of this Court in in Col. B.J. Akkara (Retd.)  

Vs. Government of India and Others (supra).  One of the  

issues in the aforesaid case was Issue No.(iii) as  

noticed in Paragraph No.10, which is to the following  

effect:-  

“10. On the contentions urged, the following  

questions arise for consideration:  

xxxxxxxxxxxxxxxx  

(iii) Whether the respondents having accepted  

and implemented the decision of the Delhi  

High Court [in K.C. Garg (Dr.) v. Union of  

India2] on a similar issue, are required to  

extend a similar treatment to Defence Service  

Medical Officers also, by cancelling the  

circular dated 11-9-2001.  

29    

xxxxxxxxxxxxxxxx”  

24. By answering Issue No. (iii), following was laid  

down in Paragraph Nos. 24, 25 and 26:-  

“24. The respondents have filed an affidavit  

dated 1-8-2006 admitting that in pursuance  

of the decision of the Delhi High Court, the  

circular dated 29-10-1999 had been withdrawn  

but clarified that it was withdrawn only in  

regard to the Civilian Medical Officers who  

were petitioners in the said writ petitions  

and not in regard to all Civilian Medical  

Officers. It is contended that the fact that  

a decision of the High Court had been  

accepted or implemented in the case of some  

persons, will not come in the way of the Union  

of India resisting similar petitions filed  

by others in public interest.  

25. A similar contention was considered by  

this Court in State of Maharashtra v.  

Digambar, (1995) 4 SCC 683. This Court held:  

(SCC p. 691, para 16)  

“Sometimes, as it was stated on behalf  

of the State, the State Government may  

not choose to file appeals against  

certain judgments of the High Court  

rendered in writ petitions when they  

are considered as stray cases and not  

worthwhile invoking the discretionary  

jurisdiction of this Court under  

Article 136 of the Constitution, for  

seeking redressal therefor. At other  

times, it is also possible for the  

State, not to file appeals before this  

Court in some matters on account of  

improper advice or negligence or  

improper conduct of officers  

concerned. It is further possible,

30    

that even where SLPs are filed by the  

State against judgments of the High  

Court, such SLPs may not be  

entertained by this Court in exercise  

of its discretionary jurisdiction  

under Article 136 of the Constitution  

either because they are considered as  

individual cases or because they are  

considered as cases not involving  

stakes which may adversely affect the  

interest of the State. Therefore, the  

circumstance of the non-filing of the  

appeals by the State in some similar  

matters or the rejection of some SLPs  

in limine by this Court in some other  

similar matters by itself, in our  

view, cannot be held as a bar against  

the State in filing an SLP or SLPs in  

other similar matter(s) where it is  

considered on behalf of the State that  

non-filing of such SLP or SLPs and  

pursuing them is likely to seriously  

jeopardise the interest of the State  

or public interest.”  

26. The said observations apply to this case.  

A particular judgment of the High Court may  

not be challenged by the State where the  

financial repercussions are negligible or  

where the appeal is barred by limitation. It  

may also not be challenged due to negligence  

or oversight of the dealing officers or on  

account of wrong legal advice, or on account  

of the non-comprehension of the seriousness  

or magnitude of the issue involved. However,  

when similar matters subsequently crop up and  

the magnitude of the financial implications  

is realised, the State is not prevented or  

barred from challenging the subsequent  

decisions or resisting subsequent writ  

petitions, even though judgment in a case  

involving similar issue was allowed to reach  

finality in the case of others. Of course,  

the position would be viewed differently, if

31    

petitioners plead and prove that the State  

had adopted a “pick-and-choose” method only  

to exclude petitioners on account of mala  

fides or ulterior motives. Be that as it may.  

On the facts and circumstances, neither the  

principle of res judicata nor the principle  

of estoppel is attracted. The administrative  

law principles of legitimate expectation or  

fairness in action are also not attracted.  

Therefore, the fact that in some cases the  

validity of the circular dated 29-10-1999  

(corresponding to the Defence Ministry  

circular dated 11-9-2001) has been upheld and  

that decision has attained finality will not  

come in the way of the State defending or  

enforcing its circular dated 11-9-2001.”  

25. The ratio as laid down by this Court in above case  

is fully attracted in the facts of the present case,  

thus, we conclude that the fact that appellant has  

implemented the earlier orders passed by the Central  

Administrative Tribunals and the High Courts and issued  

order for including special pay in the pay for the  

purpose of computation of pension, the Union of India  

is not precluded to raise the issues again, the  

principle of res judicata or estoppel are not  

attracted.    

26. Now, we come to the main issue, i.e. Issue No.  

(iii).  The submission which has been pressed by the

32    

learned counsel for the respondent is that the special  

pay of Rs.2,000/-, which was sanctioned by the office  

memorandum dated 03.02.1999, although describes the  

said amount of Rs.2,000/- as special pay but the real  

nature of the aforesaid payment was not the special pay  

as defined in Fundamental Rule 9(25).  The said payment  

was in lieu of a separate higher pay scale.  

27. We revert back to meaning of special pay underlined  

in Fundamental Rule 9(25) and as per the above rule,  

special pay means “an addition, of the nature of pay,  

to the emoluments of a post or of a Government servant”.   

A special pay is one granted in consideration of (a)  

the special arduous nature of the duties; or (b) a  

specific addition to the work or responsibility.  

28. Whether the amount of Rs. 2,000/- sanctioned as  

special pay to the respondents were covered within the  

definition of Rule 9(25) is a question to be answered.   

When we look into the memorandum dated 03.02.1999,  

there is categorical statement that the special pay of  

Rs.2,000/- per month is sanctioned to scientists only  

in the pay scale of Rs.18,400-22,400, in lieu of a

33    

separate higher pay scale, after peer review.  The  

order does not indicate that it has been granted to the  

Scientists due to specially arduous nature of the  

duties; or specific nature/ work of the respondents.   

The genesis for amount of Rs.2,000/- as special pay was  

on account of the grievances raised by the Scientists  

when two pay scales under Fourth Central Pay Commission  

were merged into one pay scale by Fifth Central pay  

Commission, i.e. Rs.18400-22400.  Scientists, who were  

in the pay-scale of Rs.6700-7300 had raised grievances  

and it was on account of peer review that Government  

sanctioned the special pay in lieu of a separate higher  

pay scale.  The memorandum dated 13.02.1999 was  

obtained by preparing and submitting a Combined Cabinet  

Paper to Cabinet Secretariat by all the three mentioned  

departments to remove anomaly that belonged to all  

scientists, who were in the (pre-revised) scale of  

Rs.5900-7300  prior to Fifth Central Pay Commission and  

were entitled to higher pay scale but were  

intermittently merged with a lower pay scale at the  

time of Fifth Central Pay Commission.  If the genesis  

of sanction dated 13.02.1999 is taken to its true

34    

import, it is clear that the said sanction or extension  

of benefit does not fit in the definition of special  

pay as contained in Fundamental Rule 9(25), rather it  

was to redeem the pay structure anomaly.  Subsequent  

interpretation and decision taken by the Union of India  

for not giving the benefit of amount of special pay of  

Rs.2,000/- in definition of pay was by picking up the  

word “special pay” as occurring in office memorandum  

dated 03.02.1999.    

29. The definition of Fundamental Rule 9(21)(a)(i)  

clearly excludes following two from the definition of  

pay, i.e., (i) the special pay or, (ii) pay granted in  

view of his personal qualifications. The special pay  

as occurring in Fundamental Rule 9(21)(a)(i) has to  

take colour from the definition of special pay as  

contained in Rule 9(25).  The special pay as defined  

in Rule 9(25) is sanctioned to a Government servant or  

to a post looking to the special arduous nature of the  

duties or a specific addition to the work or  

responsibility, which is related to essentially  

performance of duties and specific addition to the

35    

work.  The second exclusion, i.e., it is granted in  

view of professional qualifications also indicate that  

the special pay is only taking into consideration the  

personal qualifications of a person. Thus, special pay  

is in recognition of aforesaid factors and for  

compensating in the above circumstances.  Special pay  

is granted for specific purposes and in response to  

specific situation and circumstances.  Thus, there is  

a rational for excluding special pay from the pay as  

defined in Rule 9(21)(a)(i) but the special pay granted  

by office memorandum dated 03.02.1999 to the  

respondents was not in any of the circumstances as  

mentioned in Rule 9(25).  Rather the said benefit of  

Rs.2,000/- was in lieu of a separate higher pay scale.   

It is, thus, clear that grant of special pay of  

Rs.2,000/- was in lieu of a separate higher pay scale,  

which does not fit in the nature of special pay as  

contemplated by Rule 9(25).  Thus, the addition as  

granted by office memorandum dated 03.02.1999 also does  

not fit in the special pay, which is excluded from the  

definition of pay given under Rule 9(21)(a)(i).  Thus,  

addition of benefit of Rs.2,000/- w.e.f. 01.01.1996

36    

styled as special pay has to be included in the  

definition of pay given under Rule 9(21)(a)(i) looking  

to the true nature and character of the benefit, which  

was extended to Scientists on the basis of peer review.   

We, thus, do not find any infirmity in the decisions  

of the Central Administrative Tribunals or High Courts  

holding that the amount of special pay of Rs.2,000/-  

w.e.f. 01.01.1996 and Rs.4,000/- w.e.f. 01.01.2006 to  

be treated as part of pay for the basis of computation  

of pension.  For the reasons as mentioned above, we,  

thus, do not find any merit in these appeals, which are  

accordingly dismissed.                      

......................J.   

                           ( ASHOK BHUSHAN )  

......................J.   

                           ( L. NAGESWARA RAO )  

New Delhi,   

January 03, 2019.