1. All the civil rules raise the same question of law and facts and as such, as agreed to by the learned counsel for the parties, they are taken up together.
2.1 have heard Shri L. Nandakumar and Shri BI Sharma, learned Advocates for the petitioners and Shri Ibotombi Singh, learned Central Gent Standing Counsel and Shri L. Shyamkishore Singh, learned Govt. Advocate.
3. Civil Rule No.387 of 1992 has been filed by one Shri S. Kula Singh and it is submitted that in this petition there are 75 petitioners involved. Of them 57 are employees of the Govt. of Manipur, who retired between 31st of March, 1982 and 31st of December, 1985 and the remaining 18 are the family .members of the employees of the State Govt. servants who died while in service during the said period
4. Civil Rule No.849 of 1993 has been filed by 33 persons and they claim to have retired between 31st of March, 1982 31st of December, 1985.
5. Civil Rule No.1063 of 1993 has been filed by one Shri Irengbam Lukhoi Singh and this is stated to be the petition on behalf of 17 persons. Of them 12 are employees of Govt. of Manipur, who retired between 31st of March, 1982 and 31st of December, 1985 and the remaining 5 are the families of the employees of the State Govt. of Manipur, who died while in service during the said period.
6. Civil Rule No.978 of 1993 has been filed by Manipur Pensioner Union, a registered body and the same relief is sought.
7. The relief basically sought in all these writ applications are to issue a direction commanding the respondents to include their dearness, pay under Rule 33 of CCS Pension Rules, 1972 as adopted in Manipur in calculation of their pensionary benefits of the petitioners.
8. The State of Manipur, respondent No.3 has filed an Affidavitinopposition wherein in paragraphs 3, 4, 5, 6 and 8, it is stated, inter alia, as follows :
"3. That with reference to para No.4 to 6 of the writ petition it is submitted that the expression ''emoluments'' defined in Rule 33 in the Central Civil Services (Pension) Rules 1972 is not limited to the retirees between 31.3.82 and 31:12.85 but is applicable to all retirees or officials who dieinharness. But the expression ''emolument'' is ill conceived by the petitioner''s Association. Recokoning of dearness pay as '' emoluments'' is to be determined by the order of the Govt. issued from time to time.
4. That, with reference to para. No.7 of the writ petition, it is submitted that facts reported in Appendix 19 to Swamy''s Pension Compilation 11th Edition reprinted is not applicable to the State Govt. Employees inasmuch as for Central Govt. employees there was no Pay Revision in between 1.1.1973 and 1.1.1986 whereas, the employees of the State Govt. employees during the period of Pay Revision 1982, had already got the benefit of merger DA and ADA with their pay at the time of Pay Revision with effect from31.3.1982. Giving benefit of Dearness Pay (DP) as provided at Appendix 19 of Swamy''s Pension Compilation to those employees and petitioners would result in giving benefit twice, once at the time of pay revision in March, 1982 by merging DA/ADA with pay again by taking the said DA and AD A as pay for computation of emoluments and average emoluments. At the time of pay revision in March, 1982 in the pay of the retirees mentioned at Annexure A/1 to the writ petition DA and ADA were merged. Again taking the said DA and ADA as pay of the retirees for computation of ''emoluments'' and average emoluments will amount to double payment .
To mitigate the hardship of the retiring Central Govt. employees, Govt. of India from time to time issued orders treating certain quantum of DA and ADA as Dearness Pay and 2 (two) instalments of interim relievs for computation of Central Govt. employees pensionaries entitlements. These orders are embodied in Appendix 19 of Swamy Pension Compilation.
It is submitted that Rule 33 of CCS (Pension Rules) envisages computation of ''emoluments'' not on national pay but on pay actually drawn except for increment occurred during the first 120 days of earned leave and the emoluments is to be determined by the order of the State Govt. issued from time to time. The State Govt. also issued office memorandum from time to time. Therefore, the petitioners are not entitled to DP and IR on national basis and they have no fundamental right to claim the benefit of DP and IR on national basis.
5. That with reference to para Nos.8 to 10 of the writ petition, it is submitted that on further examination, the Govt. memorandum/order No.l/3/71H/F(Pt.I) dated 14.1.87 is found discriminatory between various pay scales in receiving pensions. In order to avoid such discrimination, the State Govt. issued another subsequent office memorandum No.5/8/78PIC(Vol.IV) dated 1.1.93 superseding earlier order/memorandumNo.l/3/71H/F(Pt.I) dated 14.1.87. The relevant portion of the said subsequent memorandum dated 1,1.93 is reproduced below :
"Pensioners whose pension was calculated on the basic pay of ROP 75 will receive 127.5% of the rerevised basis pension as dearness relief on 1.1.1986, subject to a minimum of Rs.128 and maximum of Rs.638 those whose pensions was calculated on the basic pay of ROP 75 plus DA upto CPI 272, will receive 107.5% of the prerevised basic pension as dearness relief on 1.1.86 subject to a minimum of Rs.108 and maximum of Rs.538 and those whose pensions was calculated on the basic pay of ROP 1982 will receive 92.5% of the prerevised basic pension as dearness relief on 1.1.86 subject to minimum of Rs.93 and maximum of Rs.463 and due to the gradation of the quantum of dearness relief, there shall be no discrimination as per the date of retirement. No dearness relief will however be admissible to consolidated revised pension introduced as per Central pattern wef 1.1.86. Dearness relief on the consolidated revised pension will be admissible wef 1.7.86 onwards in accordance with rates of dearness relief admissible from time to time to the Central Govt. pensioners as adopted by the Govt.of Manipur.
Further as no interim relief was granted to serving employees prior to 1.1.86 and ADA was sanctioned from time to time, no interim relief shall be enjoyed by the pensioners for the period from 31.3.82 to 31.12.85as they were given dearness relief from time to time."
The said memorandum dated 1.1.93 has clarified that emoluments under Rule 33 of the Pension Rules wef 31.3.82 to 31.12.85 shall be the basic pay under ROP 1982 and those pensioners who retired within this period inclusive of both dates shall be classified as Group C for the purpose of revision of pensions wef 1.1.86 to avoid discrimination between pensioners who retired prior to 31.3.82 and after 31.3.82. The petitioners'' Association has concealed the aforementioned fact of subsequent order/memorandum dated 1.1.93. The present writ petition is liable to be dismissed in limini for non disclosing of such important facts in the present writ petition.
6. That, with reference to para Nos. 10 of the writ petition, it is submitted that regarding dearness pay as emolument is to be determined by the order of the Govt. issued from time to time, the State Govt. issued memorandum/order dated 1.1.93 superseding the earlier order dated 14.1.87 and clarifying that no interim relief shall be enjoyed by the pensioner for the period from 31.3.82 to 31.12.85 as they were given dearness relief from time to time. In view of the above facts and circumstances the respondent No. 2 is not bound to calculate pension of the petitioner and the members at Annexure A/1 to the writ petition in terms of the provisions of Appendix 19 to the Central Civil Services (Pension) Rules, 1972. Recokoning some portions of DA/ AD A and two instalments interim relief is not applicable to the petitioner under the Govt. of Manipur as the Central ROP 75 and that of the Manipur ROP 82 are not consonant in pay structure. The Govt. order dated 1.1.93 clarified that no interim relief will be admissible to the pensioner for the period from 31.3.82 to 31.12.85 as no interim relief was granted to serving employees prior to 1.1.86.
8. That with reference to para Nos. 19 to 26 of the writ petition, it is denied that the petitioners have the fundamental rights to get dearness pay included in the calculation of pensionary benefit under Rule 33 of the CCS (Pension) Rules, 1972 as adopted in Manipur. It is reiterated that the State Govt. issued memorandum/ order dated 1.1.93 superseding earlier notification and clarifying the calculation of DA of those pensioners who retired between 31.3.82 and 31.12.85 as submitted above. No fundamental right of the petitioner and members listed at Annexure A/ 1 to the writ petition is infringed and the claims made by the petitioner and members mentioned at Annexure A/1 are without any basis and the present writ petition is illconceived and without merit and the same is liable to be dismissed in limine."
9. Streneous argument was put forward on behalf of the petitioners that under Rule 33 they are entitled to dearness pay and allowances. Rule 33 is quoted below:
"33. Emoluments: The expression ''emoluments'' means basic pay as defined in Rule 9 (21) (a) (i) of the Fundamental Rules which a Govt. servant was receiving immediately before his retirement or on the date of his death; and will also include nonpractising allowance granted to medical officer in lieu of private practice."
10. Rule 9 (21) of the Fundamental Rules are quoted below:
"9. (21) (a) Pay means the amount drawn monthly by a Govt. servant as
(i) the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantive or in an officiating capacity, or to which he is entitled by reason of his position in a cadre; and
(ii) overseas pay, special pay and personal pay, and
(in) any cither emoluments which may be specialty classed as pay by the President."
11. The learned counsel for the petitioners draws my attention to Swamy''s Compilation of Pension Rules Made Easy, wherein it is pointed out that dearness allowance and interim relief are included in the Pension Rules of the Central Govt. by notification issued by the Central Govt. from tune to time which are quoted below:
''1.3.85: interim Relief (II installment) sanctioned Counts for pension, DCRG, Family Pension and Cash equivalent of Leave Salary.
31.6.85 : Dearness Allowance/Additional Dearness Allowance/Adhoc Dearness Allowance sanctioned up to 56.8 points (as on 1.11.1984 treated as ''dearness pay'' for pensionary/death benefits to those who retire/die in service on or after 31.3.85." .
. 12. In Manipur at the relevant time there was the Manipur Civil Service (Pension) Rules, 1977. It is this Rules which will govern the case of the petitioners. Theleatned counsel far the petitioners urges as follows :
(i) That the petitioners have the fumdamental rights to the benefits given by Rule 33 of the CCS (Pension) Rules, 1972.
(ii) That the petitioners have the right to get the clearness pay included in calculation of pensionary benefits under Rule 33 of the CCS (Pension) Rules, 1972 as adopted in the State of Manipur.
13. It may be stated herein that on 24.1.91 and 7.5.91 the Govt. of Manipur gave certain clarifications vide Annexure A/2 and Annexure A/3 (Writ Application No.387 of 1992). Annexure A/2 states regarding treatment of dearness allowance as pay for retirement benefits, i.e. for the Central Govt. employees and not for the employees of the State of Manipur, prior to 1st of January, 1986. Annexure A/3 on clause 4, it is stated as follows :
"4. A question has been raised as to whether benefit of interim relief will be available to those employees retiring between 31.3.82 to 31.12.85, who were governed under the ROP'' 82 on the ground that such employee had already derived the benefit of merger DA & ADA in the basic pay, unlike their counterparts in the Central Govt.. It is hereby clarified that vide this Govt. OM No. 1/3/7 lH/F(Pt) dated 14.1.87 Govt. had conveyed the decision of raising the dearness pay to the corresponding levels under the Central Govt.. For employees, who were given the benefit of this raise in dearness pay by the Accountant General, interim relief will not be available, for payment of pension. For employees, if any, who have not received the aforesaid benefit, interim relief will however be available."
14. The learned Advocate for the parties rely on the following decisions :
(1) AIR 1980 SC 130 (DS Nakara & others vs. Union of India). In that , particular ease the Supreme Court pointed out that pension is not a bounty, pension , is a right and it does not depend upon the discretion of the Govt., but is governed by the rules and the Govt. servant is entitled to claim pension according to those rules. For the purpose of quantifying the amount having regard to service and other like matters, it may be necessary for the authority to pass an order to that, effect. But the right to receive pension flows to the person not because of any such order but by virtue of the rules.
15. There is no quarrel with this proposition of law. But what is to be decided in this particular case is that whether the petitioners are entitled to the relief claimed by them on the basis of the Pension Rules of Manipur of 1977. The Central Civil Service (Pension) Rules, 1972 and the clarifications given by the Govt. of India from time to time cannot be bodily imported and/or enforced in the State of Manipur in view of a separate set of Pension Rules of Manipur automatically as because certain clarifications have been given .by the Central Govt. that will not clothe the petitioners with any right. So the contention which was put forward on the basis of right to get the pension treating dearness allowance and interim relief as emolument can not be accepted.
16. The next case relied in is AIR 1992 Supreme Court 767 (All India Reserve Bank Retired Officers Association & others vs. Union of India & others) wherein in paragraph 5 the Supreme Court has pointed out as follows :
"5. The concept of pension is now well known and has been clarified by this Court time and again. It is not a charity or bounty nor is it gratuitous payment solely dependant on the whim or sweet will of the employer. It is earned for rendering long service and is often described as deferred portion of compensation for past service. It is in fact in the nature of a social security plan to provide for the December of life of a superannuated employee. Such social security plans are consistent with the socioeconomic requirements of the Constitution when the employer is a State within the meaning of Article 12 of the Constitution."
The law laid down has reiterated the earlier position in AIR 1983 Supreme Court 130 (supra). It is not necessary to discuss this case.
17. (1994) 2 SCC 729 (State of UP vs. UP University Colleges Pensioners'' Association). The question that arose in that case was that whether gratuity has to be taken as a part of pension. That was rejected by the Supreme Court in paragraph 15 of the judgment it was stated, inter alia, as follows :
"15. We, therefore, state that either because of what was stated in Jarnail Singh case or the way ''pension'' has been defined in the Constitution, it cannot be held that pension and gratuity are conceptually same, as stated in paragraph 9 of Jamail Singh case to which our attention is invited by Shri Jain. According to us, this Court took the view in question in Jarnail Singh because of the definition of the word ''pension'' in the concerned rule; otherwise, what was held in DV Kapoor and FR Jesuratnam cases seem to be correct legal position."
18. AIR 1996 Supreme Court 937 (State of Gujrat through Chief Secretary & others vs. V. Sarti Devi). That was a case where a person who worked as a Constable in Gujrat State Reserve Police died in 1975. He was recruited in the year 1965 as a Constable. After his demise, his widow Savitri was granted family pension. She married in 1976. Consequently the State of Gujrat stopped paying pension to the widow. A suit was filed claiming family pension. The suit was decreed by the trial Court. On appeal the decree was affirmed by the District Court. On second appeal, the High Court dismissed the second appeal and affirmed the decree of the trial Court. So there was the appeal before the Supreme Court. The Supreme Court in the judgment considered the pension scheme of the State of Gujrat for the purpose of family pension. The scheme itself provided that if the widow remarried she becomes disentitled to the pension as she ceases to be the member of the family. The question which was urged before the Supreme Court was whether mother is a dependent. The Supreme Court pointed out that in view of the expressed definition of the ''family'' mother has not been included as a member of the family to claim any family pension. Accordingly the Supreme Court allowed the appeal and quashed the decree holding that pension is given and governed by the rules made for that purpose.
19. The next case is AIR 1996 Supreme Court 1534 (VM Gadre (dead) by LRs & others vs. MG Diwan & others). That was a case by the retired and inservice employees of the Life Insurance Corporation of India claiming certain reliefs in regard to the upward revision of pension and dearness allowance or dearness relief payable thereon. The Supreme Court pointed out that a case of pension must be considered strictly in accordance with rules and regulations governing the same. The Supreme Court further pointed out that in any service a pension plan is only one component of the basket of service condition for that service and it can not be viewed in isolation. It is not permissible for the Court to substitute all the existing service conditions by a totally new set of service conditions. That would tantamount to rewriting the service conditions and consequently the retirement benefits as well for those who retired long back and. are in respect of pension under the existing rules. This being the position of law, this Court can not grant the relief as claimed by the petitioners. But at the same time the petitioners are entitled to the benefits as given in Annexures A/2 and A/ 3 by the State of Manipur. Those benefits are definitely available to the petitioners as the authority in its wisdom thought it fit, but the Central Govt. clarifications will not be applicable as that was not enforced in Manipur and there will be no merger of dearness allowance as pay for retirement benefits But it is made clear by Annexure A/3 clause .4 (quoted above) the interim relief will not be available to the employees retiring between 31.3.82 and 31.12.85 inasmuch as they have already derived that benefit of merger of DA and ADA in the basic pay.
20. It is also made clear that for employees, if any, who have not received the aforesaid benefit, interim relief however, will be available.
21. Accordingly, all these writ applications are disposed of as indicated above. If some benefits are available to the employees in terms of Annexure A/2 and. A/ 3 issued by the Govt. of Manipur that will be given.
22.I leave the parties to bear their own costs.
