Holding

The maximum pension under Rule 299(b) is Rs 1000 per month in Indian Government currency, and the 1971 amendment reducing it to Rs 857.15 is invalid for lack of prior Central Government approval; consequently, the appellants are entitled to the Rs 1000 pension.

Summary

The appellants, Ahmed Hussain Khan and S. Gopalan, were senior civil servants who had joined the Hyderabad State service before its merger with India and later transferred to Andhra Pradesh. Their pension was governed by Rule 299(b) of the Hyderabad Civil Services Rules, which originally stipulated a maximum pension of Rs 1000 per month. After the Hyderabad currency was demonetised, the Government of India fixed the equivalent amount in Indian Government currency at Rs 857.15. In 1971 Andhra Pradesh issued a notification reducing the statutory maximum to Rs 857.15. The appellants challenged this amendment, arguing that (i) the Rs 1000 in the rule refers to Indian Government currency, not the old Osmania Sikka, and (ii) the amendment required prior approval of the Central Government under the proviso to s.115(7) of the States Reorganisation Act, which was not obtained. The High Court initially allowed the writ petitions, but a Division Bench reversed, holding that a letter from the Union Ministry constituted prior approval. The Supreme Court held that the rule’s Rs 1000 is in Indian Government currency, that the 1971 amendment is invalid for lack of prior Central approval, and that the appellants are therefore entitled to a pension calculated on a Rs 1000 maximum. The Court allowed the appeals, set aside the High Court’s judgment and ordered the State to fix the pension accordingly.

Issues considered

Whether the Rs 1000 mentioned in Rule 299(b) of the Hyderabad Civil Services Rules is expressed in Indian Government currency or in the former Osmania Sikka.
Whether the 1971 amendment reducing the maximum pension to Rs 857.15 is valid, i.e., whether it required prior approval of the Central Government under the proviso to s.115(7) of the States Reorganisation Act, 1956, and whether such approval was obtained.
Whether the appellants waived their right to claim the higher pension by earlier acceptance of a lower amount.

Legislation cited

Hyderabad Currency Demonetisation (Consequential and Miscellaneous Provisions) Act, 1953s. 2
Hyderabad General Clauses Act (No. III of 1308 F.)s. 2
States Reorganisation Act, 1956s. 115(2), s. 115(3), s. 115(4), s. 115(7)

Subjects

pensioncivil serviceHyderabad Civil Services RulesStates Reorganisation Actprior approvalcurrency conversiondemonetisationcondition of service

Judgment

908

A AHMED HUSSAIN KHAN

v.

STATE OF ANDHRA PRADESH
September 28, 1984
B
[Y. V. CHANDRACHUD, C. J., D. P. MADON AND RANGANATH
MISRA, JJ.J

Hyderabad Civil Services Rules-Rule 299(1)(b)-lnterpretation of-Maxi-
1num 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 (I) of rule 299 not valid.
c 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 requi'rement1
of proviso to sub-s. (7) of s. 115.

Words and Phrases-'Pension'-Pension b a condition of service.
The appellants in Civil Appeals No. 2627 & 2628 of 1977 joined superior
D 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. 1000 a month. The erstwhile
E 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. 1000 a month"
which occurred in clause (b) of Regulation 313 meant OsLnania Sikka Rs. 1000
a month. The Government of India currency was known as "Indian Govern~
ment currency" and denominated in short as "J.G. currenc)'". 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
('Jo, 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 l, 1953 and the
Hyderabad Currency Demonetization (Consequential and Miscellaneous Provi-
sion ) Act, 1953 (I-lyderabad Act No. 1 of 1953) was enacted. Section 2 of the
G Demonetization Act provided that references in any Hyderabad law, regulations
"tc. which immediately before the commencement of this Act were in force ~o
AHMED HUSSAIN KHAN v. .ANDHRA PRADESH 909

the Hyderabad State shall be construed as if references therein to any amounts A
in the O.S. Currency were references to the equivalent amounts in J.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 denomination~ of a rupee shall be construed accordingly.

In 1954, in exercise of the powers under Article 309 of the Constitution B
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 tbe time
when the Governn1ent 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 (I) of c
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 appd!ants were transferred to 'the State of Andbra Pradesh under sec-
tion 115 of the States Reorganization Act. The two appellants retired in April D
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
bas!s that the amount of n1aximun1 pension anmissible under clause (b) of Rule
~99(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 peti-
tions under Article 226 of the Constitution in the tligh O:>urt challenging the
said am.etidment made to claU.se (b) of Rule 299(1) inter alia on the ground that E
under the proviso to sub-section (7) of section 115 of the State Reorga~ization
Act, 1956 the amendment required the previous approval of.the Central Govern-
- . ment which had not been obtained. A single Judge of the High Court allowed
both ~he writ petitiorl and issuCd a writ of mandan1us 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 n1onth and not Rs. 857.1~ per month. Iii the appeals F
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 ptevious approval eiven 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 8meodment
to the clause (b) of Rule 299(1) of the Hyderabad Civil Services Rules. Hence G
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,
inva1id and inoperative. '
Al!MED l!USSAINjKllAN V. ANi>HRA pilAJ>iJSl!

A The Respondent contended that irrespective of the amendment made in
claues (b) of Ru:e 299(1) by the notification dated February 3, 1971, the maxi-
1num pension actually admissible under the clause (b) was only Rs. 857.15 inas-
much as the sum of Rs. 1000 mentioned in the clause (b) prior to its amend-
ment was not Rs. 1000 in Government of India Currency but in the former
J;yderabad Currency, namely, Osmania Sikka, and that the Letters "O.S"
which denominated Osmania Sikka in short were omitted from the said Rule
B 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 Ruic
299 of the Hyderabad Civil Services Rules is Rs. 1000 per month in Government
c 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-
advertant printing error as contended by the Respondent or was a departure
deliberately n1ade from what was provided in clause (b) of regulation 313 in
order to provide higher pension to Government servants in superior
D service. In [his 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 I-Iyderabad General
Clauses Act (which defined the tenn 'rupee') substituted by a new clause by that
Act. Arter ihe Demonetization Act there could be no question of any Act or
Rules providing for any payment in Osmania Sikka. The word "rupees" in
E clau'.e (b) of Rule 299 can, therefore, only refer to rupees in T.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 arrangen1ent of the Regulations. There is no-
where any amount mentioned in the Rules of O.S. Currency nor arc the different •' -
amounts mentioned in the Rules the exact equivalent in I.G. Currency of the
an1ount':i in 0 S. Currency mentioned in the Regulations. It is also significant
F that Regulation 308 provided that a pension was ordinarily fixed in the current
coin of the Hyderabad State even though it n1ight have to be paid to persons
residing outside the Hyderabad State, and that in special cases it might be fixed
in Governn1~nt of .India Currency subject to the condition that the maximum of
O.S. Rs. 1000 per nlensem 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
S'ate Indian Government Currency under the principle laid down in the said
G 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 re
4

solved 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. Jn paragraph 3 of the said Preface, the Secretary to Government, Finance
Departn1ent, Hyderabad, bas expressly stated : uThe figures for amounts of
rupees and annas mentioned in the rules arc all in Indian Government
Currency." There can thus be no scope for any argument that the sum of
H
AHMED HUSSAIN .KHAN V, ANDHRA PRADESH 9it
Rs. 1000 mentioned as being admissible for maximum pension in clause (b) of A
Rule 299 was Rs. 1000 in Indian Governn1ent Currency and not in Osmania
Sikka. (921 D-H; 922 A-DJ

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. Cur-
rency has been finally decided and it is not open to the Respondent to reagitate B
this question because in Da11lat 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 mention~ng 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·EJ
c
3. The second question is of the validity of Government Notification
dated February 3, 1971, amending· clause (b) of sub-rule (I) of Rule 299. Pen-
sion 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) ofsCction 115 of the
States Reorganization Act provides that the conditions of service of a govern-
ment servant shall not be varied to his disadvantage except with the previous D
.approval of the Central Government. The Respondents contention is that letter
dated April 28, 1973 fr~m the Government of India amounts to previous appro-
val of the Central Government. By letter dated March 13, 1973 the Govern-
ment of Indla was requested to accord approval to the said amendment if it con-
;idered it necessary so to do. But its reply dated April 12, 1973, the Govern-
ment of India categorica1ly stated that the- amendn1ent did not require its prior
approval under section 115 and, therefore, did not give any approval to the said E
amendment. To equate the not giving of approval with a prior approval satis-
-. fying 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 w~s 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 ihe conditions of ser-
vice were not being varied was incorrect ·because by the said amendment the F
maximum pension of Rs. 1000 per month in I.G. Currency was being reduced
to the equivalent in·that C:urrency of 0.8. Rs. )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 Rules, namely, Octobe·r 1, 1954. For such an amend..
ment the previous approvai Or the Central Go"Yernm,ent 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 inopera-
tive so far as it concerned persons referred to in sub-section (1) and (2) of sec- G
tion 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 the Respondent's contention tba t the appeJ. H
.. ' . -
912 SUPREME COURT REPORTS [i985j 1 s.c.R.
A !ants had waived their right to receive pension on the basis that the maximum
•
pension admissible under clause (b) or Rule 299(1) is Rs. 1000 and were there-
fore, estopped from claimir•g pcn~ion on that basis. This point was never taken
in the High Court. Further, apart fron11he 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 \Vhatever for this contention. [928 A-BJ

B C!v1L APPELLATE JuR•~mcnoN : Civil Appeal Nos. 2627 & 2628
of 1977

Appeals by Spocial leave from the Judgment and Order dated
the 2nd February, \ 976 of the Andhra Pradesh High Court in Wt it
Appeal Nos. 835 & 920 of 1974.
c S. Markande)a for the Appellant.

U.R. La/it and G Narsimhulu for the Respondents.

The Judgment of the Court was delivered by
D
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 (I) of Rule 299 of the Hyderabad Civil Services Rules.
According to the Appellant in each of these two Appeals, such
E 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 convenient to relate first the relevant facts which
F 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 deftned in section 311(1) of the Government of India
Act, J935, and its Ruler within the meaning of that term as defined
in the said section 311(1) was the Nizam. The Appellant in Civil
G
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
ff Rs. 1,980 per month. B) a Government Order, namely, G.O MS
AHMED HUSSAIN KHAN v. ANDiiRA PRADESH (Madon, J.) 913
No. 664, Public Works (E) Department, dated June 22, 1973, this A
Appellant's pension after deducting the pension equivalent of death-
cum-retiremcnt gratuity was fixed at Rs. 801.96 per month on the
basis that the maximum amount of pension admissible under Rule
299(\)(b) of the Hyderabad Civil Services Rules was Rs. 1,000 per
month. By another Government Order, namely, G.O. MS No. 769,
B
Public Works (Pen. I) Department, dated July 2, 19h, 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 b) 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. c
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. 71J3 of 1973, challenging the said amend-
ment 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 Wot ks 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 E
retirement he was drawing a salary of Rs. 2,180 per month. By a
-. Government Order, namely, G.O. MS No. 462, P.W., (LI) Depart-
ment, dated May 8, 1973, his pension was fixed at Rs. 857.15 per
month persuant to the said amended clause (b) of Rule 299(1). He
thereupon filed a writ petition under Article 226 of the Constitution
oflndia in the High Court of Andhra Pradesh, being Writ Petition F
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 learne Single Judge of the said High Court.
] The aforesaid contention raised in the said writ petition found favonr
G
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 SUPREME COURT REPORTS [1985] i s.c.R.
A said Rule 299(l)(b) of the Hyderabad Civil Services Rules was
Rs. 1,000 per month and not Rs. 857. J 5 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,
B
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. 5/8/73-SR(S) dated April 28, 1973, from the Joint Secretary
to the Government of India, Cabinet Secretariate, Department of
Personnel and A. R., to the Secretary to the Government of Andhra
c 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 coreectness of the judg-
ment and orders of the Division Bench of the Andhra Pradesh High
Court are assailed before us in these two Appeals.
D
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
E
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 (I) of Artirle 19 and elause (I) of Article 31 of the Constitution
of India and the State Government could not withhold it by a mere
F executive order. So far as Appellant, Ahmed Hussain Khan, was
concerned, Mr. Mark~ndeya furthe~ submitted that his pension hav-
ing already been fixed under the said Rule 299(J)(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 Ruic 299(1)(b) was
G Rs. 857.15 per month as was purported to be done by the said
Government Order dated July 2, 1973, without affording the said
Appellant an opportunity of showing cause against the same.

Mr. Lalit, appearing on behalf of the Respondent-the State
H of Andhra Pradesh, raised the following four contentions ;
AHMED HUSSAIN KHAN v. ANDHRA PRADESH (Madon i.) 91$

(I) Irrespective of the said amendment made in the said A
clause (b) of Rule 299(1) by the said Notification dated Febru·
ary 3, 1971, the maximum pension actually admissible under the
said clause (b) was only Rs. 857.15 inasmuch as the sum of
Rs. J ,000 mentioned in the said clause (b) prior to its amend·
men! was not Rs. 1,000 in Government of India currency but
in the former Hyderabad currency, namely, Osmania Sikka, and B
that the letters "O.S." which denominated Osmania Sikka in
short were omitted f10m the said Rule 299(1)(b) by an inadver-
tent printing error.

(2) In any event, under the Hyderabad Currency Demoneti·
zation (Consequential and Miscellaneous Provisions) Act, 1953, c
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.
D
(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, consti·
tuted the prior approval of the Central Government within the
meaning of the proviso to sub-section (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 iii 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 F
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,
there.fore, estopped from ;aising this contention.

Jn Deokinandan Prasad v. State of Bihar and Others" 1 this '
Court held that the payment of pension does not depend upon the dis- G
cretion 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
H
.(1) [!9711 supp. s.c.R. 634.
SUPREME COURT REPORTS [!98Sj i S.C.R.
A· 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 ma) be necessary
for the authorities to pass an order to that effect, but the right to
receive penston 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 Govern-
ment but is a right vesting in a Government servant and was property
under clause (I) 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 (I) 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
c 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 prov1s1ons
. J
governing the payment of pension to Government servants who had
D 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-
E after for the sake of brevity referred to as "the Regglations".

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 I of
F 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
d 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)
H
AHMED HUSSAIN KHAN v. ANDHRA PRADESH (Madon, J.) 917

Civil Service in the erstwhile Indian State of Hyderabad was of A
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 mcnsem 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.
B
Regulation 313 provided for the amount of pensions and gratuities
for superior service. Clause (a) of Regulation 313 dealt with a quali-
fying service of less than ten years. Clause (b) of Regulation 313
dealt with a qualifying service of ten ~ears or more. The Appella~t
in each of these two Appeals had put in a qualifying service of more
than ten yeats and the amount of his pension. had the Regulations c
continued in force until he retired, would have been go,erned 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 br multiplied by the
period of qualifying service, and the product divided by 60 ; the E
result will be the amount of pension admissible. Tbe 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."
F,
It may be mentioned that the erstwhile Indian State of Hydera-
bad had its own currency known as the "Osmania Sikka" denomi-
nated in short as "O.S." and the phrase "O.S. Rs. J ,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. 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
t~O 0.S. currency, · · W1
918 SUPREME COURT REPORTS (1985] 1 S.C.R.

A After India became independent, a Standstill Agreement wa1
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
B shortly to be adopted by the Constituent Assembly of lndia 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 pro-
visions inconsistent therewith which were then in force in the erstwhile
c Indian State of Hyderabad. By the said Firman, the Nizarn 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
D 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, H¥dera-
bad became a part of the territory of India as a Part B State.

E Consequent npon the above constitutional change, Hyderabad
currency was demonetized with effect from April I, 1953, and the
Hyderabad Currency Demonetization (Consequential and Miscella-
neous 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 I, 1953.
F Section 2 of the Demonetization Act provided as follows :

"2. Provisions consequential on demonetization of Hydera~
bad O.S. Currency:

Subject to the provisions of the Act references express or
G 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. currenc.y1
accordin~ to the standard rate of exchan11e and all ri¥hts an¢
AHMED HUSSAIN KHAN v. AHDHRA PRADESH (Madon, J.) 919

liabilities express or implied in O.S. Curreney 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 0. S. Currency to the
extent and for the purposes for which the same continues as
B
legal tender in the Hyderabad State after the thirty-first day of
March 1953.
Illustration-References to 0. S. Rs. 7 in any !av. 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."
c
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." D

The definitions co11't'a-ined 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 Hydera-
bad Civil Service Regulations. E

-·· In view of the provisions of the Demonetization Act, the maxi-
mum 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 Govern· F
ment 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
G
were not in force when the Appellant in each of these two Appeals
retired, for they v.ere replaced in 1954 by the Hyderabad Civil
Services Rules which were made by the Rajpramukh of the State of
Hyderabad in exersice of the power conferred by the proviso to •
Article 309 of the Con•titution of India. The proviso to Article 309
~oµfers upon the Governor of a State and, prior to its amendment b;y
H
920 SUPREME COURT REPORTS [1985] 1 S.C.R.
A the Constitution (Seventh Amendment} Act, 1956, conferred upon
the Rajpramukh of a State, or such i •erson as he may direct in the
case of services and posts in connection. with the affairs of the State,
the po\\er ·to make rules regulating the recruitment, and the condi-
tions of service of persons appointed, to such services and posts
.B 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
c retirement of civil servants, and their pension, leave, etc. The Rules
came into force on October I, 1954. Rule 4 of the Rules is inpari
materia with Regulation 6 of the Regulations. Rule 4 provides as
follows :

D "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 rn/es in force at the time when the Government servant
·retires or is discharged from the service of Government."
E \
(Emphasis supplied}

The Rules preserved the distinction between rnferior 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
F
'· which does not exceed Rs. 40 per mensem". Under clause (48} of
Rule 7, 'Superi~r 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) of Rule ·
299 deals with a case where the quarffying service is less than ten
years. Clause (b} deals with a case where the qualifying 'er vice is of
ten years or more. The relevant provisions of Rule 299 are as
.•
G
,;. follows:

"299. The pension and gratuity for- superior service is
regulated as follows :

.'
ll, x x
]
AHMED HUSSAIN KHAN v. ANDHRA PRADESH (Madon, J.) 921
(bl After qualifying service of 10 years.or more, the amount A
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 B
the above rule qualifying service of 25 years or above, whatever
its length may be, ·will be treated as 30 years service."

It wlll be noticed that clause (b) of Rule 299 is in pari materia with
clause (b) of Regulation 313 with tbis difference that while under
clause (b) of Regulation 313 the maximum pension ordinarily admissi- c
ble y;as to be "O.S. Rs. 1,000 a month", under clause (bl of Rule299
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 D
as contended by the Respondent or was a departure deliberately made
from what "as provided in clause (b) of Regulation 313 in order to
provide higher pension to Govornment 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 E
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_
A tcthere 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 F
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 LG. Currency of the amounts in O.S. Currency G
mentioned in the Regulations. For instance, the rates of mileage
allowance for journeys by road mentioned in Rule 99 are not equi-
valent-in LG. 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 H
922 SUPREME COURT RFPORTS [1985] 1 s.c.it.

A 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 Regu·
Jation 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
B
Government currency under the principle laid down in the said Regu-
lation. 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
c 3 of the said Preface, the Secretary to Government, Finance Depart-
ment, 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
D 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 I, 1956, on the coming into force of the States
Reorganization Act, 1956 (Act No. XXXVII of 1956). Under the
E 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. Con-
F
sequent 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
G
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 memo·
randum, being Memorandum No. 27439/500/Pen.l/69 dated April
28, 1969, the Assistant Secretary to the Government of Andhra
H Pradesh, Finance Department, issued an erratum to the said clause
AHMED HUSSAIN KHAN v. ANDHRA PRADESH (Madon, J.) 923

(b) of Rule 299 purporting to correct the amount of Rs. 1,000 A
.f 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 Dau/at Rai and others v.
State ~f Andhra Pradesh. A learned Single Judge of the said High
Court allowed the said writ petition, holding that there was no error
B
in mentioning Rs. 1,000 and that what the said erratum pm ported to
do was to amend clause (b) of Rule 299 and that the Rules promul-
gated 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 Andhta Pradesh was not entitled to amend any such rule unless c
the sanction of the GO\ernor 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. Dau/at 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 speaial leave to appeal against D
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 E
to urge it before us.

We now address ourselves to the question of the validity of
the said Government Notification dated Feburary 3, 1971, amending
clause (b) of sub-rule (I) of Rule 299. Before setting out the text of F
the said Notification, we may mention that it appears that after the
judgment of the Division Bench in Dau/at Rai's case Rule 299 wa$
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 :
G
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 :- H
924 SUPRElliE COURT REPORTS [1985j I s.c.R..
A The amendment hereby made sball be deemed to have
come into force on the 1st October, 1954.

AMENDMENT

In clause (b) of sub-rule (I) of rule 299 of the said
B
Rules for the experession "1,000 a month" the expresion
"Rs. 857. 15 a month" shall be substituted.

(BY ORDER AND IN THE NAME OF THE GOVERNOR
OF ANDHRA PRADESH)

c 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 115 of the
States Reorganization Act, 1956, namely, sub-sections (2), (3), (4)
D 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, provisio-
E nally oontinue 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 Govern-
ment 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 effeet from which such allotment shall take effect
or be deemed to have taken effect.
G
"(4) Every person who is finally allotted under the pro-
visions 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
H agreement as may be determined by the Central Government.
AHMED HUSSAIN KHAN v. ANDHRA PRADESH (Madon, J.) 925

"(7) Nothing in this section shall be deemed to effect· A
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;
B
Provided that the conditions of service applicable imme-
diately before the appointed day to the case of any person
referred to in sub-section (I) 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, c
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 lhe Union and the
States and consists of Articles 308 to 313.
D
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 l, 1956, in the case of any person referred
to inter ai/a in sub-section (2) of section 115 cannot be varied to
his disadvantage except with the previous approval of the Central E
Government. Pension is a condition of service as held by this Court
in State of Madhya Pradesh and Others v. Shardul Singh Ill and, there-
fore, if any rules are to be made by the Governor of a State varying
the amount of pension to the disavantage 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 F
made by the said Notification reduced the amount of pension pay-
able 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
Andhta 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 G
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

(!) [1970) 3 S.C.R. 30i at p. 3Qli. H
926 SUPREME COURT REPORTS [1985] 1 S.C.R.
A 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 l.G. Currency but in practice, how-
ever, the figure was treated as O.S. Rs. 1,000 and all pensions
sanctioned before November I, 1956, were restricted to Rs. 857.15
B
being the equivalent in l.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
Comt 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
c paid more than Rs. 857.15 in I.G. Currency prior to November I,
1956,'tho 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 Dania! Rai and two others, and that it wa•, therefore, felt by the
State Government that what it had done was not a variation in the
D 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 I, 1956. The said letter then went on to state :

"It, therefore, does not appear necessary to obtain previ-
E ous aporoval 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."

F
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 Govern-
ment of India, Cabinet Secretariat, Department of Personnel and
A.R., stated as follows :

G
"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 pen-
~ion of more than Rs, ~57 .15 jn India!\ currency before
ff
AHMED HUSSAIN KHAN v. ANDHRA PRADESH (Madon, J.) 927

l.ll.1956, the proposed amendment in the Hyderabad Civil A
Service Rules is not a variation in the conditions of service
of any employee to his disadvantage after l.l I.1956 and does
not require prior approval of the Government of India under
Section 115 of the States Reorganization Act, 1956."

B
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 c
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 Govern-
ment of India categorically stated that the said amendment did not
require its prior approval nnder 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 D
of the proviso tu 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 State-
ment made in the said letter dated March 13, 1973 that hy the said
amendment the conditions of service were not being varied was E

..
Iii... incorrect because by the said amendment the maximum pension of
Rs. 1,000 per month in J.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. F
For such an amendment the previous approval of the Central Govern-
ment was required by the proviso to sub-section (7) of section ll5.
Such approval was not given and the amendment made by the said
Notification was, therefore, invalid and inoperative so far as it con-
cerned persons referred to in sub-section (I) and (2) of section 115 of
the States Reo1ganization Act. The questian whether even with res-
pect to persons other than those referm;I it in the said sub-sections, the G
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 unneceseary to consider the
other points arising in these Appeals except the Res!'on\l~nt's coq,
928 SUPREME COURT REPORTS [1985) 1 S.C.R.

A tent ion 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 (I) is Rs. 1,000 and was,
therefore, estopped from claiming pension on that basis. There is no
substance in this co .. tention. This point was never taken in the High
Court. Further, apart from the fact that there cannot be any waiver
B
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 5, 1972. By 1he
said Government Order dated June 22, 1973, his pension was in fact
fixed on the basis that the maximum pension admissible under Rule
c 299 (I) (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
D 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,
E 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(!)
of Rule 299 of the Hyderabad Civil Services Rules is Rs. l,000 per
F 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 judg-
ment 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
G
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 (I) 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
"
AHMED HUSSAIN KHAN v. ANDHRA PRADESH (Madon, J.) 929

Andhra Pradesh to pay to the Appellant in each of these two Appeals A
I
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 8
and the writ appeal in the Andhra Pradesh High Court.

H.S.K. Appeals allowed