Supreme Court of India
UNION OF INDIAversusR. SETHUMADHAVAN & ANR.
- Citation
- 2018 INSC 255
- Decided
- 22 March 2018
- Disposal
- Appeal(s) allowed
- Bench
- MADAN B LOKUR
Holding
The 2001 Office Memorandum is a clarification of, not an override to, the 1998 Office Memorandum, and pension for pre‑1996 retirees must be calculated on the replacement scale of the post held at retirement, not on a re‑designated post’s revised scale.
Summary
The appellant, a former Railway Train Examiner who retired in 1991, claimed that his pension should be calculated on the revised pay scale of Rs.5000-8000 (Junior Engineer Grade‑II) rather than the replacement scale of Rs.4500-7000 applicable to the Train Examiner post. The dispute centered on two Government Office Memoranda: one dated 17‑12‑1998 and a clarificatory one dated 11‑5‑2001, and whether the latter overrode the former, thereby creating two classes of pensioners. The Central Administrative Tribunal held that the pension should be based on the replacement scale of the post held at retirement, relying on the Supreme Court’s decision in K.S. Krishnaswamy v. Union of India. The Madras High Court reversed that view, but the Supreme Court reinstated the Tribunal’s reasoning, holding that the 2001 memorandum merely clarified, not overrode, the 1998 memorandum and that no re‑designation of the post was proven. Consequently, the appeal was allowed and the High Court’s order set aside, with no recovery of any pension amounts already paid.
Issues considered
- Whether the Office Memorandum dated 11‑May‑2001 overrides the Office Memorandum dated 17‑Dec‑1998 in determining pension calculations.
- Whether a pensioner who retired before 1‑Jan‑1996 is entitled to pension based on the revised pay scale of the re‑designated post (Junior Engineer Grade‑II) or on the replacement scale of the post held at retirement (Train Examiner).
- Whether the post of Train Examiner was re‑designated as Junior Engineer Grade‑II for pension purposes.
Subjects
Service lawPensionCentral Pay CommissionOffice MemorandumPolicy ResolutionRailway employeePost re‑designationCentral Administrative TribunalHigh CourtSupreme Court
Judgment
[2018] 3 S.C.R. 675 675
UNION OF INDIA A
v.
R. SETHUMADHAVAN & ANR.
(Civil Appeal No. 3173 of 2018)
MARCH 22, 2018 B
[MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]
Service law: Pension – Railways – Post of Train Examiner –
On 30.9.1997, policy resolution was notified by the Government of
India relating to the scope and extent of the application of the Fifth
C
Central Pay Commission – On 17.12.1998, an Office Memorandum
was issued that with effect from 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 – On 11.5.2001,
another Office Memorandum was issued clarifying the Office D
Memorandum dated 17.12.1998 – The dispute arose whether the
Office Memorandum dated 11.5.2001 overrides Office Memorandum
17.12.1998 – Held: The tribunal was right in relying on *K.S.
Krishnaswamy case wherein it was held that the recommendations
of the Fifth Pay Commission were accepted by a policy resolution
E
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 – Office Memorandum F
dated 17.12.1998 and 11.5.2001 are both complementary to each
other – Both clarify the government policy resolution – Therefore
the contention that Office Memorandum dated 11.5.2001 overrides
the original OM dated 17.12.1998 thereby creating two classes of
pensioners is ill founded – High Court erred in not referring to this
G
judgment and in holding in favour of the respondent.
*K.S. Krishnaswamy & Ors. v. Union of India & Anr.
(2006) 13 SCC 215 : [2006] 9 Suppl. SCR 330 –
relied on.
H
675
676 SUPREME COURT REPORTS [2018] 3 S.C.R.
A Case Law Reference
[2006] 9 Suppl. SCR 330 relied on Paras 11, 13, 16
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3173
of 2018.
B From the Judgment and Order dated 02.08.2016 of the High Court
of Judicature at Madras in Writ Petition No. 13207 of 2013.
Ajit Kumar Sinha, Sr. Adv, Ms. Reena Pandey, Mrs. Anil Katiyar,
Advs for the Appellant.
Vikas Mahendra, Ms. Pritha Srikumar, Advs for the Respondents.
C
The Judgment of the Court was delivered by
MADAN B. LOKUR, J. 1. Leave granted.
2. More than 140 years ago, it was said by the Privy Council:
D “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
E
classic case of a railway employee who retired as a Train Examiner on
31st March, 1991 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
F
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
G Indian Railways, he was in the pay scale of Rs. 1400–2300. After the
5th Central Pay Commission was implemented, the replacement scale
for the post of Train Examiner (which was apparently abolished) became
Rs.4500-7000.
1
General Manager of the Raj Durbhunga, under the Court of Wards v. Maharajah
H Coomar Ramaput Sing, (1871-2) Vol. XIV Moo, I.A.605
UNION OF INDIA v. R. SETHUMADHAVAN & ANR. 677
[MADAN B. LOKUR, J.]
5. According to the respondent the post of Train Examiner was A
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
B
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 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 C
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 D
pensioner.”
7. It appears that the confusion continued and once again an Office
Memorandum was issued by the Government of India on 11 th May, 2001
clarifying the earlier Office Memorandum. The clarification reads as
follows:- E
“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% F
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 G
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
H
678 SUPREME COURT REPORTS [2018] 3 S.C.R.
A Application before the Central Administrative Tribunal for his rightful
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
B 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
C 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
D 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
E 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.
11. Be that as it may, the Tribunal eventually relied upon the decision
F 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
G
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.
2
(2006) 13 SCC 215
H
UNION OF INDIA v. R. SETHUMADHAVAN & ANR. 679
[MADAN B. LOKUR, J.]
13. We have heard learned counsel for parties and find that the A
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
B
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 C
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 D
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 E
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 F
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 G
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
H
680 SUPREME COURT REPORTS [2018] 3 S.C.R.
A 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
B
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
C untenable.
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-
D 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.”
E 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
F 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
G 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.
H
UNION OF INDIA v. R. SETHUMADHAVAN & ANR. 681
[MADAN B. LOKUR, J.]
18. In case any payments have been made to the respondent, A
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.
BB
Devika Gujral Appeal allowed.
C
D
E
F
G
H
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Service law"Sign in to search