REPORTABLE     

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.    3173                 OF 2018 (Arising out of S.L.P. (CIVIL) No. 5456 OF 2018)

    Union of India                                      ...Appellant

Versus

   R. Sethumadhavan & Anr.                          ...Respondents

J U D G M E N T

Madan B. Lokur,  J.

1.  Leave granted.  

2. More than 140 years ago, it was said by the Privy Council:  

“These  proceedings  certainly  illustrate  what  was  said  by  Mr. Doyne,  and  what  has  been  often  stated  before,  that  the difficulties of a litigant in  India begin when he has obtained a Decree.”1

A somewhat similar fate seems to await government servants – on getting

retired, they have to struggle for the due pension.  This is a classic case of

a railway employee who retired as a Train Examiner on 31st March, 1991

1  General  Manager  of  the  Raj  Durbhunga,  under  the  Court  of  Wards  v. Maharajah Coomar Ramaput Sing, (1871-2)  Vol. XIV Moo, I.A.605                 C.A. No.__________of 2018 (Arising out of S.L.P. (C) No. 5456 of 2018)       Page 1 of 8

and his pension woes are being decided after 27 years and unfortunately

not in his favour.

3. We recommend to the Department of Personnel and Training of the

Government of India to try and make life after  retirement easier for a

government  servant  by  having  appropriate  legislation  enacted  by

Parliament  or  applicable  Pension  Rules  rather  than  a  khichdi  of

Instructions, Office Memoranda, Clarifications, Corrigenda and so on and

so forth.  

4. When the respondent retired as a Train Examiner with the Indian

Railways, he was in the pay scale of Rs. 1400–2300.  After the 5 th Central

Pay Commission was implemented, the replacement scale for the post of

Train Examiner (which was apparently abolished) became Rs.4500-7000.

5. According  to  the  respondent  the  post  of  Train  Examiner  was

re-designated as Junior Engineer Grade-II and the revised pay of a Junior

Engineer Grade-II was recommended by the 5th Central Pay Commission

to be Rs. 5000-8000.  The difference in the replacement scale of a Train

Examiner  as  against  the  revised  scale  in  the  case  of  Junior  Engineer

Grade–II made a difference of about Rs. 500 per month in the pension

entitlement of the respondent.

6. On 30th September, 1997 a Policy Resolution was notified by the

Government of India relating to the scope and extent of the application of

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the  recommendations  of  the  5th Central  Pay  Commission  and  its

acceptance.   This  was  followed  by  a  large  number  of  representations

from  pensioners  and  resulted  in  the  Government  of  India  issuing  an

Office Memorandum on 17th December, 1998 to the following effect:-

“The  President  is  now  pleased  to  decide  that  w.e.f.  1.1.1996, pension of all pensioners irrespective of their date of retirement shall not be less than 50% of the minimum pay in the revised scale of pay introduced w.e.f. 1.1.1996 of the post last held by the pensioner.”

7. It appears that the confusion continued and once again an Office

Memorandum was issued by the Government of India on 11th May, 2001

clarifying  the  earlier  Office  Memorandum.  The  clarification  reads  as

follows:-

“In the course of implementation of the above order, clarifications have  been  sought  by  Ministries/Departments  of  the  “post  last held” by the pensioner at the time of his/her superannuation.  The second sentence on O.M. dated 17.12.1998, i.e. “pension of all pensioners irrespective of their date of retirement shall not be less than 50% of the minimum pay in the revised scale of pay w.e.f. 1.1.1996 of the post last held by the pensioner”, shall mean that pension of all pensioners irrespective of their date of retirement shall not be less than 50% of the minimum of the corresponding scale as 01.01.96, of the scale of pay held by the pensioner at the time of superannuation/ retirement.”

8. The  grievance  of  the  respondent  is  directed  against  the

clarification dated 11th May, 2001 since the respondent felt the impact of

the  clarification  on  his  pension.  He,  therefore,  preferred  an  Original

Application before the Central  Administrative Tribunal  for  his  rightful

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pension.  The question raised by the respondent as indeed by some others

was referred to a larger Bench of the Tribunal and the question referred

reads as follows:-

“When, the pre-revised pay scale of Rs. 1400-2300 attached to the  post  of  JE.  II  (TXR)  in  the  Railways  was  revised  to  Rs. 5000-8000  (while  the  normal  replacement  pay  scale  for  the pre-revised  pay  scale  of  Rs.  1400-2300  is  Rs.  4500-7500) whether  the  pension  admissible  to  the  pre  01.01.1996  retirees should be based on the pay scale of Rs. 5000-8000 or should be restricted to that calculated on the basis of the pay scale of Rs. 4500-7000/-.”

9. By an elaborate judgment and order dated 31st October, 2011 the

Tribunal  took  the  view  that  the  respondent  held  the  post  of  Train

Examiner on the date of his superannuation and his pension had been

correctly fixed on that basis.  The replacement scale for the post of Train

Examiner was Rs. 4500-7000 with effect from 1st January, 1996.  It was

held that the pension of the respondent could not be on par with the pay

scale  of  a  Junior  Engineer  Grade-II.   The  reference  was  answered

accordingly.

10. While  coming to this  conclusion the Tribunal  adverted to 20 or

more decisions rendered by various Benches of the Tribunal, several High

Courts and also few decisions of this Court.  This is an indication of the

contest in store for pensioners when a claim for pension is made against

the State.

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11. Be that as it may, the Tribunal eventually relied upon the decision

of this Court in K.S. Krishnaswamy & Ors. v. Union of India & Anr.2 to

dismiss the Original Application.   

12. Feeling aggrieved by the judgment and order of the Tribunal, the

petitioner preferred W.P. No. 13207 of 2013 in the Madras High Court.

By the impugned judgment and order dated 2nd August, 2016 the High

Court  allowed  the  writ  petition  and  quashed  the  order  passed  by  the

Tribunal. It is under these circumstances that the Union of India is before

us.

13. We  have  heard  learned  counsel  for  parties  and  find  that  the

Tribunal was right in relying upon the judgment and order passed by this

Court in  Krishnaswamy.   In this decision, the very question that arose

for consideration before the Tribunal and the High Court was dealt with,

though with reference to some other posts of the Government of India.

The question formulated by this Court in  Krishnaswamy related to the

scale of pay recommended by the 5th Central Pay Commission and the

acceptance of  the recommendations by the Government  of  India  by a

policy decision dated 30th September, 1997 and the Office Memorandum

dated 17th December, 1998 clarified by the Office Memorandum dated

11th May, 2001.   The  basic  question  that  arose  for  consideration  was

whether  the  Office  Memorandum dated  11th May, 2001  overrides  the

2  (2006) 13 SCC 215                C.A. No.__________of 2018 (Arising out of S.L.P. (C) No. 5456 of 2018)       Page 5 of 8

Office  Memorandum dated  17th December,  1998  clarifying  the  policy

resolution of the Government of India dated 30th September, 1997.

14. While dealing with this question, this Court held in paragraphs 17

and 27 of the Report as follows:   

“17. The main thrust of the submissions of learned counsel for the  appellants  is  that  the  OM dated  11-5-2001  overrides  the original  OM  dated  17-12-1998  and  creates  two  classes  of pensioners. We are unable to accept this contention. As noticed above, the recommendations of the Fifth Pay Commission were accepted to the extent of policy resolution dated 30-9-1997. The aforesaid  Policy  Resolution  was  further  clarified  by  issuing instructions in OM dated 17-12-1998, which were clarified by another  executive  instructions  in  OM  dated  11-5-2001.  It  is well-settled principle of law that recommendations of the Pay Commission  are  subject  to  the  acceptance/rejection  with modifications  of  the  appropriate  Government.  It  is  also well-settled  principle  of  law  that  a  policy  decision  of  the Government  can  be  reviewed/altered/modified  by  executive instructions. It is in these circumstances that a policy decision cannot be challenged on the ground of estoppel. In the present case, the recommendations of the Fifth Pay Commission were accepted by a Policy Resolution dated 30-9-1997 that the ceiling on the amount of pension will be 50% of the highest pay in the Government. The pension of all pre-1-1-1996 retirees including pre-1986 retirees shall be consolidated as on 1-1-1996, but the consolidated pension shall not be brought on to the level of 50% of  the  minimum  of  the  revised  pay  of  the  post  held  by  the pensioner at the time of retirement. The subsequent OM dated 17-12-1998 clarified the Policy Resolution dated 30-9-1997 by executive  instructions  in  OM  dated  17-12-1998  and  further clarified  in  the  form  of  OM  dated  11-5-2001  clarifying  the contents  of  Policy  Resolution  of  the  Government  dated 30-9-1997.  They are both complementary to each other. Both clarify the government Policy Resolution dated 30-9-1997. The appellants are not aggrieved by the executive instructions in OM dated 17-12-1998. In our view, therefore, the contention of the appellant  that  the  OM dated 11-5-2001 overrides  the  original OM  dated  17-12-1998,  thereby  creating  two  classes  of pensioners is absolutely ill-founded and untenable.

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27. For the reasons aforestated, the view taken by the Madras High Court that the clarificatory executive instructions in OM dated  11-5-2001  are  an  integral  part  of  the  OM  dated 17-12-1998 clarifying the policy resolution of the Government dated  30-9-1997  and  do  not  override  the  original  OM dated 17-12-1998 is correct law and it is, accordingly, affirmed. The view taken by the Delhi High Court that OM dated 11-5-2001 overrides  the  original  OM dated  17-12-1998  and  creates  two classes of pensioners does not lay down the correct law and is, hereby, set aside.”

15.  Unfortunately,  the  High  Court  has  not  even  referred  to  this

judgment while taking a decision in favour of the respondent.  Since the

issue is squarely covered by the decision of this Court in Krishnaswamy,

the appeal must be allowed.

16. Yet another error made by the High Court is in assuming that the

post of Train Examiner was re-designated as Junior Engineer Grade-II.

There is  nothing on record to  suggest  the  re-designation.   In  fact  the

conclusion of re-designation is the sole basis on which the writ petition

was allowed by the High Court and as mentioned above, we do not find

any material on record to suggest the re-designation.  Consequently, the

entire basis of the decision of the High Court is erroneous, apart from the

fact that the High Court did not advert to the decision of this Court in

Krishnaswamy  on the subject.   

17. In  the  circumstances,  we  have  no  option  but  to  set  aside  the

impugned judgment and order of the Madras High Court and we do so

accordingly.  The appeal is allowed.                C.A. No.__________of 2018 (Arising out of S.L.P. (C) No. 5456 of 2018)       Page 7 of 8

18. In case any payments have been made to the respondent, there will

be no recovery of these amounts.   

19. A  copy  of  this  order  be  sent  to  the  Secretary,  Department  of

Personnel and Training of the Government of India.

………………………J (Madan B. Lokur)  

...……………………..J    New Delhi;             (Deepak Gupta) March 22, 2018

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