UNION OF INDIA & ORS. versus DR. O. P. NIJHAWAN & ORS. on 3 January 2019

UNION OF INDIA & ORS.

v.

DR. O. P. NIJHAWAN & ORS.

(Civil Appeal No. 12040 of 2018)

JANUARY 03, 2019

[ASHOK BHUSHAN AND L. NAGESWARA RAO, JJ.]

Service Law – Pension – Computation of – Special pay of Rs.2,000/- and Rs. 4000/- given to scientists working in the Departmentof Defence Research and Development Organisation (DRDO),Department of Atomic Energy (DAE) and Department of Space(DOS) under Ministry of Defence – Inclusion of the special pay forcomputation of pension – Permissibility of – Held: Special pay ofRs.2,000/- or Rs.4,000/- sanctioned to the Scientists in Departmentsof DRDO, DAE and DOS w.e.f. 01.01.1996/01.01.2006 respectivelyhas to be included in the definition of pay as contained in r.9(21)(a)(i) for the purposes of computation of pensionary benefitunder 1972 Rules – Grant of special pay of Rs.2,000/- was in lieuof a separate higher pay scale, which does not fit in the nature ofspecial pay as contemplated by r. 9(25) – Addition of benefit ofRs.2,000/- w.e.f. 01.01.1996 styled as special pay has to be includedin the definition of pay given u/r. 9(21)(a)(i) looking to the truenature and character of the benefit, which was extended to Scientistson the basis of peer review – Tribunals or High Courts rightly heldthat the amount of special pay of Rs.2,000/- w.e.f. 01.01.1996 andRs.4,000/- w.e.f. 01.01.2006 to be treated as part of pay for thebasis of computation of pension – SLPs on the same issue havingbeen dismissed in limine, the appellants are not precluded fromraising the issues on question of law, which was earlier left open bythis Court – Furthermore, the appellant has implemented the earlierorders passed by the Tribunals and the High Courts and issuedorder for including special pay in the pay for the purpose ofcomputation of pension, the appellant is not precluded to raise theissues again, the principle of res judicata/estoppel not attracted –Fundamental Rules – rr. 9(21)(a)(i) and 9(25) – Central CivilServices Pension Rules, 1972 – r. 33.

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[2019] 1 S.C.R.

ADismissing the appeals, the Court

HELD: 1.1 Under Fourth Central Pay Commission,Scientists ‘G’ were receiving pay scale of Rs.5900-6700 andScientists ‘H’ were getting pay scale of Rs. 5900-7300. Onimplementation of Fifth Central Pay Commission, both the aboveBpay scales were merged into a single pay scale of Rs.18400-22400and were designated as Scientific Officer ‘H’. On peer review,recommendation was made to sanction of special pay of Rs.2,000/- w.e.f. 01.01.1996. An order dated 03.02.1999 was issued in thisregard. There were certain clarifications issued by different officememorandum for example, office memorandum dated 12.08.1999Cissued by Government of India, Department of Space that specialpay will not be treated as part of pay for the purposes like, DA,HRA etc., which led filing of original applications in the Tribunalquestioning the clarificatory order issued by the Government ofIndia and Tribunal had allowed the claim of Scientists to reckonDthe special pay for the purpose of pension. The Government ofIndia, Ministry of Defence, DRDO has specifically issued an orderdated 13.05.2009, where the Government decided to count thesaid special pay for pension and pensionary benefits. [Paras 19,20][293-C-D; 294-C-D]

Issues

E1.2 The original applications filed by Scientists similarlysituated was allowed by Central Administrative Tribunal againstwhich few of the writ petitions were also dismissed by the HighCourt and against the judgment of the High Court or the CentralAdministrative Tribunals, matter was carried by Union of Indiain this Court where SLPs were dismissed. However, the questionFof law was left open.” There were few other SLPs filed by theUnion of India, which were dismissed in limine. SLPs having beendismissed in limine, the appellants are not precluded from raisingthe issues, which have been sought to be raised in these appealsin this Court. This was also the consequences of the question ofGlaw being left open by this Court. Thus, this Court is not persuadedto accept the submission that Union of India is precluded fromraising the issues on question of law, which was earlier left openby this Court. Thus, the question of law as raised by the appellantsare to be decided. [Para 22][295-F-H; 296-A-B]

H1.3 The order dated 13.05.2009 of Government of India, had directed for counting of special pay for pensionary purposes.In the year 1999 itself, a clarificatory order was issued by theUnion of India that special pay shall not be treated as a part ofpay for the purposes of pension. The said stand, was taken by theGovernment relying on the definition of pay as given underFundamental Rule 9(21)(a)(i), thereafter came various orders ofthe Tribunals where direction was issued to compute by addingthe special pay in the pay for computation of pension. The factthat appellant has implemented the earlier orders passed by theTribunals and the High Courts and issued order for includingspecial pay in the pay for the purpose of computation of pension,the Union of India is not precluded to raise the issues again, theprinciple of res judicata or estoppel are not attracted. [Para 22,25][296-C-D; 298-F]

1.4 As per Fundamental Rule 9(25), the Special pay means“an addition, of the nature of pay, to the emoluments of a post orof a Government servant”. A special pay is one granted inconsideration of the special arduous nature of the duties; or aspecific addition to the work or responsibility. In the memorandumdated 03.02.1999, there is categorical statement that the specialpay of Rs.2,000/- per month is sanctioned to scientists only inthe pay scale of Rs.18,400-22,400, in lieu of a separate higherpay scale, after peer review. The order does not indicate that ithas been granted to the Scientists due to specially arduous natureof the duties; or specific nature/ work of the respondents. Thegenesis for amount of Rs.2,000/- as special pay was on account ofthe grievances raised by the Scientists when two pay scales underFourth Central Pay Commission were merged into one pay scaleby Fifth Central pay Commission, i.e. Rs.18400-22400. Scientists,who were in the pay-scale of Rs.6700-7300 had raised grievancesand it was on account of peer review that Government sanctionedthe special pay in lieu of a separate higher pay scale. Thememorandum dated 13.02.1999 was obtained by preparing andsubmitting a Combined Cabinet Paper to Cabinet Secretariat byall the three mentioned departments to remove anomaly thatbelonged to all scientists, who were in the (pre-revised) scale ofRs.5900-7300 prior to Fifth Central Pay Commission and wereentitled to higher pay scale but were intermittently merged with AB

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Aa lower pay scale at the time of Fifth Central Pay Commission. Ifthe genesis of sanction dated 13.02.1999 is taken to its trueimport, it is clear that the said sanction or extension of benefitdoes not fit in the definition of special pay as contained inFundamental Rule 9(25), rather it was to redeem the pay structureanomaly. Subsequent interpretation and decision taken by theBUnion of India for not giving the benefit of amount of special payof Rs.2,000/- in definition of pay was by picking up the word“special pay” as occurring in office memorandum dated03.02.1999. [Paras 27, 28][299-A-B, C-G]

1.5 The definition of Fundamental Rule 9(21)(a)(i) clearlyCexcludes the special pay or pay granted in view of his personalqualifications from the definition of pay. The special pay asoccurring in Fundamental Rule 9(21)(a)(i) has to take colour fromthe definition of special pay as contained in Rule 9(25). The specialpay as defined in Rule 9(25) is sanctioned to a GovernmentDservant or to a post looking to the special arduous nature of theduties or a specific addition to the work or responsibility, whichis related to essentially performance of duties and specific additionto the work. The second exclusion, i.e., it is granted in view ofprofessional qualifications also indicate that the special pay isonly taking into consideration the personal qualifications of aEperson. Thus, special pay is in recognition of the said factors andfor compensating in the above circumstances. Special pay isgranted for specific purposes and in response to specific situationand circumstances. Thus, there is a rational for excluding specialpay from the pay as defined in Rule 9(21)(a)(i) but the special payFgranted by office memorandum dated 03.02.1999 to therespondents was not in any of the circumstances as mentioned inRule 9(25). Rather the said benefit of Rs.2,000/- was in lieu of aseparate higher pay scale. It is, thus, clear that grant of specialpay of Rs.2,000/- was in lieu of a separate higher pay scale, which does not fit in the nature of special pay as contemplated by RuleG9(25). Thus, the addition as granted by office memorandum dated03.02.1999 also does not fit in the special pay, which is excludedfrom the definition of pay given under Rule 9(21)(a)(i). Thus,addition of benefit of Rs.2,000/- w.e.f. 01.01.1996 styled as specialpay has to be included in the definition of pay given under RuleH

9(21)(a)(i) looking to the true nature and character of the benefit,which was extended to Scientists on the basis of peer review.Thus, there is no infirmity in the decisions of the CentralAdministrative Tribunals or High Courts holding that the amountof special pay of Rs.2,000/- w.e.f. 01.01.1996 and Rs.4,000/- w.e.f.01.01.2006 to be treated as part of pay for the basis of computationof pension. [Para 29][299-G-H; 300-A-F]

Col. B.J. Akkara (Retd.) v. Government of India andOthers (2006) 11 SCC 709 : [2006] 7 Suppl. SCR 58 –referred to.

Case Law Reference

[2006] 7 Suppl. SCR 58referred toPara 11

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 12040of 2018.

From the Judgment and Order dated 18.07.2014 of the DelhiHigh Court at New Delhi in Writ Petition No. 3095 of 2014.

WITH

Civil Appeal Nos. 12112, 12125-12127, 12143-12144, 12113, 12139,12114, 12115, 12116, 12117, 12142, 12042, 12099, 12137-12138, 12109,12101, 12140-12141, 12128, 12098, 12135-12136, 12043, 12104, 12133-12134, 12106, 12130-12132, 12111, 12044, 12129, 12145, 12146, 12147-12149, 12100, 12045, 12150, 12102, 12103, 12105, 12107, 12108, 12110,12229, 12153, 12095-12096, 12047, 12154-12157, 12151-12152, 12046,12041, 12120, 12068, 12119 and 12118 of 2018.

Mrs. Pinky Anand, ASG, Nidhesh Gupta, Sr. Adv., Avinash Sharma,R. Balasubramanian, Santosh Kumar, T. M. Singh, Mukul Singh,M. Sagar, Santosh Kumar, Mukesh Kumar Maroria, Sanjai KumarPathak, Ms. Akabha Kaul, Gurmeet Singh Makker, MerusagarSamantray, P. V. Yogeswaran, Leelesh Krishna, B. V. Balaram Das,S. N. Terdol, Arvind Kumar Sharma, S. K. Malik, Praveen Chaturvedi,Ms. Pallvi Singh, Ms. Vriti Gujral, Jyoti Chaturvedi, Addya Mishra,Mr. Ananga Bhattacharyya, Vaibhav Vutts, Ms. Aamna Hasan, Shreyesrastogi, Ashwin Kumar D. S., Ms. Surbhi Mehta, Satish Kumar, Advs.for the appearing parties.

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[2019] 1 S.C.R.

AThe Judgment of the Court was delivered by

ASHOK BHUSHAN, J. 1. This bunch of appeals raisingcommon questions of law and facts have been heard together and arebeing decided by this common judgment. All the appeals have been filedby the Union of India through Ministry of Defence and others questioningBthe judgment of High Court and judgments of Central AdministrativeTribunal, Principal Bench, Delhi and different other benches of CentralAdministrative Tribunals. The Central Administrative Tribunal, PrincipalBench as well as different other benches of Central AdministrativeTribunals have allowed the original applications filed by respondentsherein, who have been working as Scientists in Department of DefenceCResearch and Development Organisation, Department of Atomic Energyand Department of Space, all under Ministry of Defence. The Union ofIndia has sanctioned special pay of Rs.2,000/- w.e.f. 01.01.1996 andRs.4,000/- w.e.f. 01.01.2006 to the Scientists working in the abovementioned three departments.D

2. Original applications were filed by the respondents hereinclaiming direction to the Union of India and others for reckoning thespecial pay for pension and pensionary purpose. The respondents in thisbatch of appeals had been working in the Department of DefenceResearch and Development Organisation, Department of Atomic EnergyEand Department of Space. The issues raised before the CentralAdministrative Tribunals by the respondents/ Scientists working in theabove mentioned three departments and the reliefs claimed therein weresimilar in nature and Principal Bench of Central Administrative Tribunaland other benches had allowed the claim for treating the above specialpay for pensionary benefits. The High Courts have also dismissed theFwrit petitions where the orders of Central Administrative Tribunals werechallenged. Union of India being aggrieved by the said judgments havecome up in these appeals.

3. Issues raised by Scientists of above mentioned threedepartments being the same, it shall be sufficient to notice the pleadingsGin Civil Appeal No. 12040 of 2018 –Union of India & Ors. Vs. Dr. O.P.Nijhawan & Ors. for deciding this bunch of appeals, which is beingtreated as leading appeal.

4. We now proceed to notice the facts in Civil Appeal No. 12040of 2018 – Union of India & Ors. Vs. Dr. O.P. Nijhawan & Ors.H

5. The respondentsDr. O.P. Nijhawan and others were serving asScientists ‘G’ in the Defence Research & Development Organisation(hereinafter referred to as “DRDO”), Ministry of Defence from wherethey retired from service. Scientist ‘G’ of DRDO were working in thescale of Rs.5900-7300 along with Scientist/Engineers-H working in theDepartment of Atomic Energy (hereinafter referred to as “DAE”) asalso Department of Space (hereinafter referred to as “DOS”). TheFifth Central Pay Commission recommended a common revised payscale of Rs.18400-22400 for the pay scales of Rs.5900-7300 and Rs.5900-6700. The scale given to Scientific Officer H and Scientists ‘G’ weremerged in common scale by Fifth Central Pay Commission Scales andunder Sixth Central Pay Commission scale of Rs. 18400-22400 wasrevised as Rs.37400-67000. The Scientists of the aforementioned threeScientific Departments, i.e. DRDO, DOS and DAE made a case forsuitably compensating the Scientists/Engineers in the pay scale of Rs.5900-7300 (pre-revised). Consequent to Peer Review, the Governmentof India, Ministry of Defence decided to sanction special pay of Rs.2,000/- per month to the Scientists in the pay-scale of Rs. 18,400-22400inlieu of a separate higher pay scale. An Order dated 03.02.1999 wasissued by all the three above Departments. The Order dated 03.02.1999sanctioned the above pay scales from 01.01.1996.

6. An order dated 14.05.1999 was issued by Ministry of Defence,DRDO intimating that a proposal to pay special pay as part of pay asdefined under Fundamental Rule 9(21) for all purposes is being taken upseparately with Ministry of Defence, further instructions in this regardwill be issued after obtaining the approval of the Ministry. Governmentof India, DOS issued an order dated 12.08.1999, where it was mentionedthat special pay will not be treated as part of pay for the purposes likeDA, HRA, pension etc. The Original Application No. 1135 of 2002 wasfiled by Scientists working in the Department of Space questioning theclarificatory order issued by O.M. dated 12.08.1999 regarding non-inclusion of special pay as part of the pension. The Principal Bench ofCentral Administrative Tribunal, Delhi allowed the OA by order dated14.05.2003 holding that special pay of Rs.2,000/- per month w.e.f.01.01.1996 shall be treated as part of pay for the purposes of pensionarybenefit. The Department of Space has also issued a consequential orderdated 11.07.2003 modifying its earlier order dated 12.08.1999 to the effectthat special pay will not be treated as part of pay for the purposes of AB

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AD.A. but the same may be treated as part of pay for the pensionarybenefits w.e.f. 01.01.1996. On 13.07.2004, DAE relying on the order ofthe Central Administrative Tribunal under O.A. No. 1153 of 2002 extendedthe benefit of special pay of Rs.2,000/- for pensionary benefit. TheScientists working in the DRDO had also filed O.A. No. 184 of 2006praying that special pay of Rs.2,000/- be treated for the purposes ofBpension, which O.A. was allowed by order dated 29.03.2007 holdingthat special pay shall also be treated for pensionary benefit. The Unionof India filed a Writ Petition No. 267 of 2008 against the judgment ofCentral Administrative Tribunal, Hyderabad dated 29.03.2007, which writpetition was dismissed by the High Court of Andhra Pradesh by itsCjudgment dated 25.09.2008. A SLP (C) No. 4842 of 2009 was filedagainst the judgment of High Court of Andhra Pradesh at Hyderabad,which was dismissed by this Court on 29.04.2009 by following order:- “ Heard.

Delay condoned.D

On the facts of the present case, we are not inclined to interferewith the impugned judgment and order. The special leave petitionis dismissed. However, the question of law is left open.”

7. The Ministry of Defence, DRDO issued an order datedE13.05.2009, which provided that special pay of Rs.2,000/- per monthgranted to Scientist in the pay scale of Rs.18400-22400 w.e.f. 01.01.1996and special pay of Rs.4,000/- per month to Scientist in pay band-4(Rs.37400-67000) with Grade Pay of Rs.10,000/- per month w.e.f.01.01.2006 is to be counted for pension and pensionary benefits. It is tobe noted that special pay of Rs.2,000/- was increased as Rs.4,000/-Fw.e.f. 01.01.2006. The respondent Dr. O.P. Nijhawan and others filedan O.A. No. 1750 of 2012 before Central Administrative Tribunal,Principal Bench, New Delhi complaining that although by order dated13.05.2009 sanction of the President to count special pay of Rs.2,000/-per month granted to Scientists in the pay scale of Rs.18400-22400 w.e.f.G01.01.1996 and special pay of Rs.4,000/- per month to Scientist in payband-4 (Rs.37400-67000) with Grade Pay of Rs.10,000/- per month w.e.f.01.01.2006 for pension and pensionary benefits, the said order has notbeen implemented. It was further pleaded that several Scientists whohave filed cases before Hyderabad Bench, Bangalore Bench and PrincipalBench, New Delhi, where orders were issued, consequently with regardH

to certain Scientists of that grade, the order was implemented but stillwith regard to the applicants, the benefit has not been extended. It waspleaded that grant of similar benefit to some colleagues of applicantsand not extending the said benefit to them is arbitrary and discriminatory.The respondents herein prayed for direction to the respondents in O.A.to revise the pension and pensionary benefits of the Scientists ’G’ ofDRDO in terms of their own order dated 13.05.2009. It was also prayedthat respondents be directed to pay arrears of pension and pensionarybenefits to the applicants taking into account Rs.2,000/- or Rs.4,000/- asspecial pay and also interest, if revision of pension and pensionary benefitstaken unduly long period. The Central Administrative Tribunal, PrincipalBench, New Delhi allowed the O.A. No. 1750 of 2012 vide its judgmentdated 22.01.2013 and issued following directions:- “(1) The claim of the applicants are allowed for reckoning thespecial pay of Rs.2,000/- admissible from 01.01.1996 and Rs.4,000/- admissible from 01.01.2006 in the respective grade pays asenumerated in the OM dated 13.05.2009 for pension andpensionary purposes.

(2) It is further directed that those who fall within the eligiblecategories as cited above are to be allowed this benefit withouttheir being required to approach this Tribunal.

(3) This, of course, is a measure of exception and leaves thequestion of law undetermined.”

8. Against the judgment and order of the Tribunal dated 22.01.2013,Union of India filed a Writ Petition No. 3095 of 2014 in the Delhi HighCourt, which writ petition has also been dismissed by the Division Benchvide its judgment dated 18.07.2014. Civil Appeal No. 12040 of 2018 –Union of India & Ors. Vs. Dr. O.P. Nijhawan & Ors. has been filedagainst the judgment of Delhi High Court dated 18.07.2014.

9. As noted above, most of other appeals in this bunch has beenfiled against the judgment of the Central Administrative Tribunal, PrincipalBench, New Delhi and other Benches, wherein, the CentralAdministrative Tribunal has granted same relief to the Scientists workingin the Departments of DRDO, DAE and DOS.

10. We have heard Ms. Pinky Anand, learned Additional SolicitorGeneral for India and Colonel Mr. Balasubramanian for the appellants.

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AShri Nidhesh Gupta, learned senior counsel as well as several otherlearned advocates appearing for respondents in different appeals havealso been heard.11. Learned counsel for the appellants submits that judgmentsand orders passed by the Central Administrative Tribunals and the HighBCourt are in teeth of Rule 9(21)(a)(i) of the Fundamental Rules andRule 33 of the Central Civil Services Pension Rules, 1972 (hereinafterreferred to as “1972 Rules). The definition of pay as contained inFundamental Rule 9(21)(a)(i) clearly excludes “special pay” from thedefinition of pay, hence the “special pay” of Rs.2,000/- w.e.f. 01.01.1996and Rs.4,000/- w.e.f. 01.01.2006 cannot be included in pay, hence has toCbe excluded from the definition of emoluments as defined in Rule 33 of1972 Rules. The judgment of Central Administrative Tribunals as wellas the High Court holding that special pay is to be included for computationof pension cannot alter the legal position, the language of a Statute, i.e.Rule 9(21)(a)(i), which is clear and unambiguous. Further the fact thatDagainst the earlier order passed by Central Administrative Tribunals andthe High Court, writ petitions and SLPs filed by Union of India weredismissed, shall not alter the legal position. The Special Leave Petitionswere dismissed in limine and this Court in one of the Special LeavePetitions has expressly left the question of law open. Further the factthat in number of other similarly situated Scientists, the order passed byEthe Central Administrative Tribunals/High Courts have attained finalityand have also been implemented by the Union of India, cannot precludethis Court from deciding the question of law left open. Reliance wasplaced on the judgment of this Court in Col. B.J. Akkara (Retd.) Vs.Government of India and Others, (2006) 11 SCC 709. It is submittedFthat there is huge financial implication on the Union of India due to theorders passed by the Central Administrative Tribunals and High Courts.It is lastly submitted that Seventh Central Pay Commission hasdiscontinued the special pay to the Scientists, which Resolution has beennotified by Notification dated 01.07.2017.

G12. Learned counsel for the respondents refuting the submissionof appellants contends that the special pay of Rs.2,000/- w.e.f. 01.01.1996was granted in lieu of a separate high pay scale, which is clear from theorder dated 03.02.1999 sanctioning the special pay, hence, it was not inthe nature of special pay as defined in Fundamental Rule 9(25), thus,was not eligible for exclusion from the definition of pay as contained inH

Rule 9(21)(a)(i). Only special pay, which is covered within the definitionof Fundamental Rule 9(25) deserves to be excluded from the definitionof pay. Thus, the special pay of Rs.2,000/- granted to the respondents inlieu of a separate higher pay scale is eligible for computation of pensionarybenefits and the Central Administrative Tribunals and the High Courtshave not committed any error in allowing the claim of the respondents.Further, the relief to the respondents have been granted since similarlysituated respondents have already been granted the benefit by the Unionof India itself. Non-inclusion of special pay of Rs.2,000/- or Rs.4,000/- for computation of pension shall be depriving the respondents of theright of pension, which they have earned by rendering valuable servicesto Union.

13. We have considered the submissions of the learned counselfor the parties and have perused the records.

14. From the pleadings on the record and the submissions madeby the learned counsel for the parties, following issues arise forconsideration in this batch of appeals:-

(i) Whether the appellants are precluded to question the impugnedjudgment of Central Administrative Tribunals/High Courtsdirecting for inclusion of special pay of Rs.2,000/- or Rs. 4,000/- for computation of pension, since at earlier stages, similarorders passed by Central Administrative Tribunals/High Courtshave attained finality due to dismissal of Special Leave Petitionsfiled by the Union of India?

(ii) Whether the Orders issued by the Union of India implementingthe orders by giving effect to the decisions of the CentralAdministrative Tribunals and High Court directing for inclusionof special pay of Rs.2,000/- or Rs.4,000/- in computation ofpension, the Union of India is precluded/estopped fromquestioning the earlier decisions?

(iii) Whether special pay of Rs.2,000/- or Rs.4,000/- sanctionedto the Scientists in Departments of DRDO, DAE and DOSw.e.f. 01.01.1996/01.01.2006 respectively has to be includedin the definition of pay as contained in Rule 9(21)(a)(i) for thepurposes of computation of pensionary benefit under 1972Rules?

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A15. Before we enter into the respective submissions of the learnedcounsel for the parties on the above issues, it is necessary to look intothe statutory provisions pertaining to computation of pension and someof the orders issued by the Union of India.

16. Rule 9(21)(a)(i) of the Fundamental Rules defines “Pay”, whichBis as follows:-

(21) (a) “Pay” means the amount drawn monthly byGovernmentservant as-

(i) the pay, other than special pay or pay granted in viewof hispersonal qualifications, which has beensanctioned for a postCheld by him substantively or inan officiating capacity or to whichhe is entitled byreason of his position in a cadre, and

(ii) overseas pay, special pay and personal pay, and

(iii) any other emoluments which may be specially classedas payDby the President.

17. The special pay has been defined in Fundamental Rule 9(25),which is to the following effect:-

(25) ”Special Pay” means an addition, of the nature of pay, totheemoluments of a post or of a Government servant, grantedEinconsideration of- (a) the specially arduous nature of the duties; or (b) a specific addition to the work or responsibility.F

For orders regarding grant of Special Pay to various categories ofGovernment servants and treatment thereof for the purpose offixation of pay on promotion, see Appendix-8 in this Compilation.

For orders regarding grant of Special Pay in the name of Deputation(Duty) Allowance on the transfer of Central Government servantsGto other Government Departments, Companies, Corporations, etc.,see Appendix-5 in this Compilation.

18. The payment of pension to the Central Government employeesis regulated by Central Civil Services Pension Rules, 1972. Rule 33 ofthe 1972 Rules defines emoluments, which is to the following effect:-H

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33. Emoluments

[The expression ‘emoluments’ means basic pay as defined inRule 9 (21) (a) (i) of the Fundamental Rules which a Governmentservant was receiving immediately before his retirement or onthe date of his death; and will also include non-practising allowancegranted to medical officer in lieu of private practice.]

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[EXPLANATION. - Stagnation increment shall be treated asemoluments for calculation of retirement benefits.]

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19. As noted above, under Fourth Central Pay Commission,CScientists ‘G’ were receiving pay scale of Rs.5900-6700 and Scientists‘H’ were getting pay scale of Rs. 5900-7300. On implementation ofFifth Central Pay Commission, both the above pay scales were mergedinto a single pay scale of Rs.18400-22400 and were designated asScientific Officer ‘H’. On peer review, recommendation was made tosanction of special pay of Rs.2,000/- w.e.f. 01.01.1996. An order datedD03.02.1999 was issued in this regard, relevant portion of the order is asfollows:- “NO. DRDO/US101-A/V CPC/MPD/D (R&D)GOVERNMENT OF INDIADEPARTMENT OF DEFENCE RESEARCH &DEVELOPMENT NEW DELHI

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03 Feb 1999

To,

The Director General Research & Development, Defence Research & Development Organization, Ministry of Defence, New Delhi.

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Subject:- INCENTIVES FOR SCIENTISTS

The undersigned is directed to state that the question of providingincentives to scientists in the Department has been examined bythe Govt. keeping in view the role played by them in thedevelopment of high technology and systems for strategicapplications. Taking all relevant factors into account and in orderto attract, retain, inspire and motivate scientists to give their bestcontributions. The President is pleased to sanction following:- G

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A2. With effect from Jan 01, 1996

(1) Special pay of Rs.2,000/- p.m. to scientists in the pay scale ofRs.18,400-22,400, in lieu of a separate higher pay scale, afterpeer review.

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20. As noticed above, there were certain clarifications issued bydifferent office memorandum for example, office memorandum dated12.08.1999 issued by Government of India, Department of Space thatspecial pay will not be treated as part of pay for the purposes like, DA,HRA etc., which led filing of original applications in the CentralCAdministrative Tribunalquestioning the clarificatory order issued by theGovernment of India and Central Administrative Tribunal had allowedthe claim of Scientists to reckon the special pay for the purpose of pension.The Government of India, Ministry of Defence, DRDO has specificallyissued an order dated 13.05.2009, where the Government decided toDcount the aforesaid special pay for pension and pensionary benefits.Office memorandum dated 13.05.1999 is to the following effect:- “Tele: 23007252 No. CHRD83101/Incentives-6[th] CPC/C/P/01

Ministry of Defence,Defence Research & Development OrgDte of Human Resource Development‘B’ Block, DRDO BhawanNew Delhi – 110 105.

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13[th] May 2009

The Director

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(All Labs/Estts)

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Subject: INCENTIVES FOR SCIENTISTS – COUNTING OF SPECIAL PAY FOR PNEIONSARY PURPOSES.

A copy of GOI, Ministry of Defence letter No. DHRD/85101/INCENTIVES/VI-CPC/C/P/01/1376/2009/D(R&D) dated 13May, 2009 on the above subject is forwarded herewith.

2. As per the above Govt, letter the special pay of Rs.2,000/- p.m.granted to Scientist in the pay scale of Rs.18400-22400 w.e.f. 01Jan 1996 and special pay of Rs.4,000/- p.m. to Scientist in PayBand-4 (Rs.37400-67000) with Grade Pay of Rs.10,000/- p.m.w.e.f. 01 Jan 2006 is to be counted for pension and pensionarybenefits.

3. It is requested that the necessary action may be initiated torevise the PPO of all the Scientists ‘G’ who have retired /superannuated accordingly.

Sd/-

(T. Chandra Banu)Additional Director, HRDFor DGR&D

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21. As noted above, relying on the said memorandum, therespondents have filed original applications claiming that with regard tothem, the orders have not been implemented and they have been deniedcomputation of special pay for purposes of pension, which claim wasultimately allowed by the Central Administrative Tribunal vide its orderdated 22.01.2003 against which order, Delhi High Court has dismissedthe writ petition, which led in filing the Civil Appeal in the leading caseby the Union of India.

22. We now take up first and second issue together. There aretwo aspects, which need to be noticed in respect of above issues. Firstly,original applications filed by Scientists similarly situated was allowed byCentral Administrative Tribunal against which few of the writ petitionswere also dismissed by the High Court and against the judgment of theHigh Court or the Central Administrative Tribunals, matter was carriedby Union of India in this Court where SLPs were dismissed. One of theorders passed by this Court in SLP (C) No. 4842 of 2009 has beenbrought as Annexure P1 in leading Civil Appeal. In order dated20.04.2009, this Court held “On the facts of the present case, we are notinclined to interfere with the impugned judgment and order. The specialleave petition is dismissed. However, the question of law is left open.”There were few other SLPs filed by the Union of India, which weredismissed in limine. SLPs having been dismissed in limine, the appellantsare not precluded from raising the issues, which have been sought to be A

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Araised in these appeals in this Court. This was also the consequences ofthe question of law being left open by this Court as noticed above. We,thus, are not persuaded to accept the submission of learned counsel forthe respondents that Union of India is precluded from raising the issueson question of law, which was earlier left open by this Court. Thus, wehave to proceed to decide the question of law as raised by the appellants.BComing to the second aspect of the matter, i.e. the appellants itself havingdecided to extend the benefit of special pay for computation ofpension,whether it is still open for the appellants to raise the issue? Wehave already noticed the order dated 13.05.2009 of Government of India,which had directed for counting of special pay for pensionary purposes.CWe have already noticed that in the year 1999 itself, a clarificatory orderwas issued by the Union of India that special pay shall not be treated asa part of pay for the purposes of pension. The above stand, it appears,was taken by the Government relying on the definition of pay as givenunder Fundamental Rule 9(21)(a)(i),thereafter came various orders of the Central Administrative Tribunals as noticed above, where directionDwas issued to compute by adding the special pay in the pay for computationof pension, details of which, we have already noticed above. TheGovernment of India having already implemented the aforesaid orderscan it still question its own decision, where the benefit has been extended.

23. Learned counsel for the appellants has relied on judgment ofEthis Court in in Col. B.J. Akkara (Retd.) Vs. Government of Indiaand Others(supra). One of the issues in the aforesaid case was IssueNo.(iii) as noticed in Paragraph No.10, which is to the following effect:- “10. On the contentions urged, the following questions arise forconsideration:F

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(iii) Whether the respondents having accepted and implementedthe decision of the Delhi High Court [in K.C. Garg (Dr.) v. Unionof India[2]] on a similar issue, are required to extend a similarGtreatment to Defence Service Medical Officers also, by cancellingthe circular dated 11-9-2001.

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24. By answering Issue No. (iii), following was laid down inParagraph Nos. 24, 25 and 26:-H

“24. The respondents have filed an affidavit dated 1-8-2006admitting that in pursuance of the decision of the Delhi High Court,the circular dated 29-10-1999 had been withdrawn but clarifiedthat it was withdrawn only in regard to the Civilian MedicalOfficers who were petitioners in the said writ petitions and not inregard to all Civilian Medical Officers. It is contended that thefact that a decision of the High Court had been accepted orimplemented in the case of some persons, will not come in theway of the Union of India resisting similar petitions filed by othersin public interest.

25. A similar contention was considered by this Court in State ofMaharashtra v. Digambar, (1995) 4 SCC 683. This Court held:(SCC p. 691, para 16)

“Sometimes, as it was stated on behalf of the State, the StateGovernment may not choose to file appeals against certainjudgments of the High Court rendered in writ petitions whenthey are considered as stray cases and not worthwhile invokingthe discretionary jurisdiction of this Court under Article 136 ofthe Constitution, for seeking redressal therefor. At other times,it is also possible for the State, not to file appeals before thisCourt in some matters on account of improper advice ornegligence or improper conduct of officers concerned. It isfurther possible, that even where SLPs are filed by the Stateagainst judgments of the High Court, such SLPs may not beentertained by this Court in exercise of its discretionaryjurisdiction under Article 136 of the Constitution either becausethey are considered as individual cases or because they areconsidered as cases not involving stakes which may adverselyaffect the interest of the State. Therefore, the circumstanceof the non-filing of the appeals by the State in some similarmatters or the rejection of some SLPs in limine by this Court insome other similar matters by itself, in our view, cannot beheld as a bar against the State in filing an SLP or SLPs in othersimilar matter(s) where it is considered on behalf of the Statethat non-filing of such SLP or SLPs and pursuing them is likelyto seriously jeopardise the interest of the State or publicinterest.”

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A26. The said observations apply to this case. A particular judgmentof the High Court may not be challenged by the State where thefinancial repercussions are negligible or where the appeal is barredby limitation. It may also not be challenged due to negligence oroversight of the dealing officers or on account of wrong legaladvice, or on account of the non-comprehension of the seriousnessBor magnitude of the issue involved. However, when similar matterssubsequently crop up and the magnitude of the financial implicationsis realised, the State is not prevented or barred from challengingthe subsequent decisions or resisting subsequent writ petitions,even though judgment in a case involving similar issue was allowedCto reach finality in the case of others. Of course, the positionwould be viewed differently, if petitioners plead and prove thatthe State had adopted a “pick-and-choose” method only to excludepetitioners on account of mala fides or ulterior motives. Be thatas it may. On the facts and circumstances, neither the principle ofres judicata nor the principle of estoppel is attracted. TheDadministrative law principles of legitimate expectation or fairnessin action are also not attracted. Therefore, the fact that in somecases the validity of the circular dated 29-10-1999 (correspondingto the Defence Ministry circular dated 11-9-2001) has been upheldand that decision has attained finality will not come in the way ofEthe State defending or enforcing its circular dated 11-9-2001.”

25. The ratio as laid down by this Court in above case is fullyattracted in the facts of the present case, thus, we conclude that the factthat appellant has implemented the earlier orders passed by the CentralAdministrative Tribunals and the High Courts and issued order forincluding special pay in the pay for the purpose of computation of pension,the Union of India is not precluded to raise the issues again, the principleof res judicata or estoppel are not attracted.

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26. Now, we come to the main issue, i.e. Issue No. (iii). Thesubmission which has been pressed by the learned counsel for theGrespondent is that the special pay of Rs.2,000/-, which was sanctionedby the office memorandum dated 03.02.1999, although describes thesaid amount of Rs.2,000/- as special pay but the real nature of the aforesaidpayment was not the special pay as defined in Fundamental Rule 9(25).The said payment was in lieu of a separate higher pay scale.

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27. We revert back to meaning of special pay underlined inFundamental Rule 9(25) and as per the above rule, special pay means“an addition, of the nature of pay, to the emoluments of a post or of aGovernment servant”. A special pay is one granted in consideration of(a) the special arduous nature of the duties; or (b) a specific addition tothe work or responsibility.

28. Whether the amount of Rs. 2,000/- sanctioned as special payto the respondents were covered within the definition of Rule 9(25) is aquestion to be answered. When we look into the memorandum dated03.02.1999, there is categorical statement that the special pay ofRs.2,000/- per month is sanctioned to scientists only in the pay scale ofRs.18,400-22,400, in lieu of a separate higher pay scale, after peer review.The order does not indicate that it has been granted to the Scientists dueto specially arduous nature of the duties; orspecific nature/ work of therespondents. The genesis for amount of Rs.2,000/- as special pay wason account of the grievances raised by the Scientists when two payscales under Fourth Central Pay Commission were merged into one payscale by Fifth Central pay Commission, i.e. Rs.18400-22400. Scientists,who were in the pay-scale of Rs.6700-7300 had raised grievances and itwas on account of peer review that Government sanctioned the specialpay in lieu of a separate higher pay scale. The memorandum dated13.02.1999 was obtained by preparing and submitting a Combined CabinetPaper to Cabinet Secretariat by all the three mentioned departments toremove anomaly that belonged to all scientists, who were in the (pre-revised) scale of Rs.5900-7300 prior to Fifth Central Pay Commissionand were entitled to higher pay scale but were intermittentlymergedwith a lower pay scale at the time of Fifth Central Pay Commission. Ifthe genesis of sanction dated 13.02.1999 is taken to its true import, it isclear that the said sanction or extension of benefit does not fit in thedefinition of special pay as contained in Fundamental Rule 9(25), ratherit was to redeem the pay structure anomaly. Subsequent interpretationand decision taken by the Union of India for not giving the benefit ofamount of special pay of Rs.2,000/- in definition of pay wasby pickingup the word “special pay” as occurring in office memorandum dated03.02.1999.

29. The definition of Fundamental Rule 9(21)(a)(i) clearly excludesfollowing two from the definition of pay, i.e., (i) the special pay or, (ii)pay granted in view of his personal qualifications. The special pay as A

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Aoccurring in Fundamental Rule 9(21)(a)(i) has to take colour from thedefinition of special pay as contained in Rule 9(25). The special pay asdefined in Rule 9(25) is sanctioned to a Government servant or to a postlooking to the special arduous nature of the duties or a specific additionto the work or responsibility, which is related to essentially performanceof duties and specific addition to the work. The second exclusion, i.e., itBis granted in view of professional qualifications also indicate that thespecial pay is only taking into consideration the personal qualifications ofa person. Thus, special pay is in recognition of aforesaid factors and forcompensating in the above circumstances. Special pay is granted forspecific purposes and in response to specific situation and circumstances.CThus, there is a rational for excluding special pay from the pay as definedin Rule 9(21)(a)(i) but the special pay granted by office memorandumdated 03.02.1999 to the respondents was not in any of the circumstancesas mentioned in Rule 9(25). Rather the said benefit of Rs.2,000/- was inlieu of a separate higher pay scale. It is, thus, clear that grant of special

pay of Rs.2,000/- was in lieu of a separate higher pay scale, which doesDnot fit in the nature of special pay as contemplated by Rule 9(25). Thus,the addition as granted by office memorandum dated 03.02.1999 alsodoes not fit in the special pay, which is excluded from the definition ofpay given under Rule 9(21)(a)(i). Thus, addition of benefit of Rs.2,000/- w.e.f. 01.01.1996 styled as special pay has to be included in the definitionEof pay given under Rule 9(21)(a)(i) looking to the true nature andcharacter of the benefit, which was extended to Scientists on the basisof peer review. We, thus, do not find any infirmity in the decisions of theCentral Administrative Tribunals or High Courts holding that the amountof special pay of Rs.2,000/- w.e.f. 01.01.1996 and Rs.4,000/- w.e.f.01.01.2006 to be treated as part of pay for the basis of computation ofFpension. For the reasons as mentioned above, we, thus, do not find anymerit in these appeals, which are accordingly dismissed.

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Nidhi Jain

Appeals dismissed.

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