GOVERNMENT OF ANDHRA PRADESH Vs. SYED YOUSUDDIN AHMED

JUDGEMENT

(1.) This appeal is directed against the judgment of the Full Bench of Andhra Pradesh Administrative Tribunal in O.A. No. 10380 of 1990. The Tribunal by the impugned order directed that the incentive increments which had been given to the respondent for his meritorious work must be held to be a personal pay and the said personal pay has to be taken into account for determining the emoluments which the respondent was drawing on the date of his superannuation for the purpose of calculating his pension. The respondent, admittedly, was an employee of the erstwhile Hyderabad State and after the merger of the said State and on re-organisation he became an employee of the State of Andhra Pradesh. On the date of his superannuation on 31-12-1989 he was working as a Deputy Executive Engineer in the Irrigation Department and he had been granted four advance increments as incentive award pursuant to GOMs No. 562 GAD dated 17-11-1982 and GOMs No. 127 IandCAD dated 8-4-1988. In calculating his pension since this amount drawn by the respondent as incentive increment was not taken into account he approached the Administrative Tribunal. The Tribunal by the impugned order having directed that the incentive increments drawn by the respondent on the date of his superannuation should be taken as a part of his emoluments and, therefore, should be taken into account for determination of his persion, the State, has come up in appeal.

(2.) The learned Counsel for the appellant contended that the pension of the State Government employee has to be determined in accordance with the Andhra Pradesh Revised Pension Rules of 1980, which has been framed under proviso to Article 309 of the Constitution, hereinafter referred to as the Rules. Under the Rules the expression emoluments means pay as defined in Rule 9(21)(a)(i) of the Fundamental Rules which a Government servant was receiving immediately before his retirement or on his death. In Rule 9(21)(a)(i) of the Fundamental Rules the expression pay means:the pay, other than special pay or granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity, or to which he is entitled by reasons of his position in a cadre. Therefore, the incentive award which the respondent was drawing while working as a Deputy Executive Engineer cannot form a part of pay as defined in Rule 9 (21)(a)(i) of the Fundamental Rules and consequently would not form a part of emoluments within the ambit of Rule 31 of the Rules for the purpose of calculation of pension of the Government servant. The Tribunal, therefore, committed gross error in directing that the said incentive award should be taken into account for determining the pension of the respondent. The learned counsel for the respondent on the other hand contended, Rule 31 which was amended in 1988 will not govern the case determining pension of the employees who were already in service and it would apply to those who joined the service after the amendment came into force. The learned Counsel further submitted that in view of the proviso to Rule 2 of the Fundamental Rules the Pension Rules could not have been amended to the disadvantage of a person already in service and consequently the amended provisions of Rule 31 of the Revised Pension Rules must be declared to be invalid. Though the Tribunal did not go into the said question even though raised, the respondent is entitled to raise the question in support of the order passed in favour of the respondent by the Tribunal.

(3.) In view of the rival submissions at the Bar the questions that arise for our consideration are: