GOPALAKRISHAN AND ORS.versusUNION OF INDIA

A                      E. GOPALAKRISHAN AND ORS.
                                   v.
                                UNION OF INDIA

                               OCTOBER 31, 1995

B                 [K. RAMASWAMY AND B.N. KIRPAL, JJ.]

          Se1vice Law :

           Pension-Computation of-Special pay-Inclusion of-Held, Appel-
C   /ants having retired prior to the date on which notional pay was given effect
    to, scale of pay including special pay cannot be stepped up for computing
    pension.

           The appellants, while working as Upper Division Clerks, were draw-
    ing special pay of Rs. 35 per month. The Department issued instructions
D   by memo dated 11.7.1979 specifying that the special pay would not be paid
    to the promoted Head Clerks or Chief Clerks. Accordingly, when the
    appellants were promoted as Head Clerks or Chief Clerks they did not
    carry with them the special pay of Rs. 35. Later, in order to avoid anomaly
    in the pay structure, the Board of Arbitration decided that special pay of
E   R•. 35 would also be paid to the promoted Head Clerks Chief Clerks with
    effect from 1.9.1985 but without arrears. The Central Administrative
    Tribunal also held that the persons who had not been paid the special pa:'
    from 11.7.1979 till 31.8.1985 would also be entitled to the said special pay,
    but they were not entitled to the arrears. The appellants who retired prior
    to 1.9.1985, claimed that they were entitled to step up their pay by including
F    Rs. 35 per month for purpose of calculating the pension. Their claim was
    rejected by the Department as also by the Central Administrative
    Tribunal. Aggrieved, they filed the appeal by special leave.

          Dismissing the appeal, this Court
G         HELD : 1.1. Pension is required to be computed on calculation of
    average of 10 months' pay actually drawn by the employee. The appellants
    have retired prior to September 1,1985. Since they were not in service as
    on Se1itember 1, 1985, the date on which the notional pay was given effect
    to, they had not actually drawn the pay including Rs. 35 per month.
H   Accordingly, the scale of pay including Rs. 35 per month cannot be
                                         608
                       E.GOPALAKRJSHANv. U.0.1.                         609

stepped up for computing the pension. (610-H, 6ll-A)                          A
      1.2. The benefit that was given by the Board as well as the
order of the Tribunal and the respondents was to ren1ove the anomaly in
the pay structure and bring uniformity applying notional scale of' pay of'
those promoted as head clerks/chief' clerks between July 11, 1979 to
August 31, 1985 but denied payment of arrears. Thus, no salary with Rs.        B
35 as special pay was made to any one. That benefit was given only to
those who continued in service after September l, 1985. The notional pay
is considered in that perspective only for the purpose of removing the
anomaly. [610-G]

        CIVIL APPELLATE .JURISDICTION : Civil Appeal No. 1423 of
                                                                               c
1995.

      From the Judgment and Order dated 26.4.93 of the Central Ad-
ministrative Tribunal, Madras Bench in O.A. No. 1165 of 1991.
                                                                              D
        S. Sundarvaradan and K. Swami for the Appellants.

     A. Jayaram, Additional Solicitor General, A.D.N. Rao, Arivind Kr.
Sharma and C.V.S. Rao for the Respondent.

        The following Order of the Court was delivered :                       E
      The appellants, nine in number, admittedly had retired prior to
September 1, 1985 as either head clerks or chief clerks, the last being June
30, 1985. It appears that a practice was in vogue at one point of time that
for the discharge of special duties a sun1 of Rs. 35 p.111. as special pay \Vas
                                  1

granted to the upper division clerks working in certain special posts.
                                                                                F
Decision was taken that on promotion as head clerk or .special clerk, they
would not be entitled to carry with them the special pay of Rs. 35 per
month. Admittedly, the appellants had been promoted, as stated earlier, as
head clerks or chief clerks and they were not given the special pay of Rs.
35 per month from the date of their promotion till the date of their G
retirement prior to September 1, 1985. It is also clear that in the memo
dated July 11, 1979, it was expressly stated that the special pay would not
be paid to the promoted head clerks or chief clerks. Subsequently, it
appears that there was an agitation and a reference to the Board of
Arbitration was made which had decided that with a view to remove the H
    610                   SUPREME COURT REPORTS [1995] SUPP. 4 S.C.R.

A anomaly in the pay structure, the special pay of Rs. 35 per month shall be
    paid lo the promoted head clerks/chief clerks w.e.f. September 1, 1985 but
    without paying arrears. Challenging the non-availment thereof; some of the
    employees had approached the CAT al Delhi which appears to have i1eld
    that the persons who had not been paid from .July 11, 1979 till August 31,
    1985 would also be entitled to the special pay at Rs. 35 per month bul they
B
    were not entitled to the arrears of the salary. Jn other words, the result of
    the decision of the Board of Arbitration and the CAT is that the persons,
    who continued in service between July 11, 1979 and August 31, 1985 and
    thereafter, would be entitled to the special pay of Rs. 35 per month though
    promoted as head clerks/chief clerks but without arrears of salary. This was
c   also the decision taken by the respondents.

          The question that emerges is whether the head clerks/chief clerks
    who retired prior to September 1, 1985 are also entitled to step up their
    pay by including Rs. 35 per month for the purpose of calculating the
D   pension. The Tribunal in this case held that they are not entitled.

           Shri Sundarvardan, the learned senior counsel appearing for the
    appellants, contended that since the appellants had actually worked as
    head clerks/chief clerks on par with other persons to whom the benefit of
E   the pay of Rs. 35 per month had been granted by the Board of Arbitration
    and also the CAT, they have been un.iustly discriminated violating Article
    14 of the Constitution and that, therefore, the Tribunal was not right in
    denying the benefit of stepping up of the scale of pay for computation of
    pension. Having considered the argument, we find that there is nol jus-
    tification in the stand taken by the appellants. Admittedly, they have retired
F   prior to September 1, 1985. The benefit that was given by the Board as well
    as the order of the Tribunal and the respondents was to remove the
    anomaly in the pay structure and bring uniformity applying notional scale
    of pay of those promoted as head clerk/chief clerks between July 11, 1979
    to August 31, 1985 but denied payment of arrears. In other words, no salary
G   with Rs. 35 as special pay was made to any one. That benefit was given
    only to those who continued in service after September 1, 1985. The
    notional pay is considered in that perspective only for the purpose of
    removing the anomaly. The pension is required to be computed on calcula-
    tion of average of 10 months pay actually drawn by the employee. Since
H   the appellants admittedly were not in service as on September 1, 1985, the
                     E. GOPALAKRISHAN v. U.O.l.                      611

date on which the notional pay was given effect to, they had not actually   A
drawn the pay including Rs. 35 per month. Accordingly, the scale of pay
including Rs. 35 per month cannot be stepped up for computing the
pension. The appeal is accordingly dismissed but, in the circumstances,
without costs.

R.P.                                                   Appeal dismissed.