K C GARG Vs. UNION OF INDIA

JUDGEMENT

(1.) . These writ petitions involving similar questions of fact and law were taken up for hearing together and are being disposed of by this common judgment. FACTS. 1.1 Petitioners herein are retired Doctors. They were working in the Central Health Service. While working in various posts in Central Health Service, they used to get Non-Practicing Allowance (NPA). Such NPA was being paid to compensate the Doctors for loss of private practice, loss of promotional avenues and late entry into service. NPA was used to be granted in certain percentage of basic pay drawn by the petitioners while they were in service. 1.2 It is not in dispute that NPA used to be revised from time to time and it was treated to be a part of the pay towards service benefits including retiral benefits. 1.3 By Office Memos dated 22.09.1987 and 02.11.1989, it had been laid down that the NPA would be taken into account for computing dearness allowance. entitlement of T.A./D.A. for sanctioning advances under G.F.R.S, House Building Advance and other allowances as well as for calculation of retiral benefits. 1.4 The Third Central Pay Commission had also observed that the NPA granted to the Doctors was in lieu of private practice, which was a traditionally enjoyed privilege as well as lesser effective service and promotion prospects caused by late entry into the service. NPA in terms of the said recommendations were continued to be counted towards all service and pensionary benefits. 1.5 It is not in dispute that the petitioners were getting NPA even after their retirement. 1.6 The Fifth Central Pay Commission (in short, '5th CODE OF CIVIL PROCEDURE, 1908') laid down that NPA be granted at a uniform rate of 25% of basic pay. In terms of the said recommendations, pension of even pre 01-01-1986 retirees and also of pre 01-01-1996 retirees inclusive of retirees up to 31.12.1995 was sought to be revised. 1.7 So far as pre 01-01-1986 retirees are concerned, it was laid down that their pay may he updated by notional fixation as on 01.01.1986 by adopting the same formula as for the serving employees. The said exercise was done so as to bring all the past pensioners to a common platform. In other words, they were to be granted the benefit of Fourth Central Pay Commission, which came into force w.e.f. 01.01.1986. 1.8 It was further laid down that all the pensioners, who had been brought on Fourth Central Pay Commission pay-scales upon notional fixation of their pay and those who retired on or after 01.01.1986 could be treated alike with regard to consolidation of their pension as on 01.01.1996 by allowing the same fitment weightage as may be allowed to the serving employees. 1.9 It was directed that the consolidated pension shall not be less than 50% of the minimum pay of the post, as revised by the 5th CODE OF CIVIL PROCEDURE, 1908, held by the pensioner at the time of retirement. Thus the pensioners of pre 01-01-1986 were brought the fact that the pension would first be revised on the basis of the scales revised from 01-01-1986 on the basis of recommendations of the Fourth Central Pay Commission. 1.10 Further the pension would be determined on the same basis on which the pension was to be determined of post-01-01-1986 retirees, i.e., in other words, if the post-01-01-1986 were to get their pension by including NPA at a particular rate of pay as recommended by Fourth Central Pay Commission, on the same basis the pension of pre-01-01-]986 retirees would be determined, but the same basis was to include the revised rate of NPA. 1.11 The said recommendations further laid down that the pension of all pre-01-01-1996 retirees was to be further determined by taking into account the scale of pay as revised by 5th Code of Civil Procedure but this was limited to 50% of the minimum pay in the scale revised by the 5th Code of Civil Procedure in regard to the post held by the petitioner at the time of retirement and the said pension was to be determined in the same way as an employee normally gets the minimum revised pay of the post he holds. The pension so determined was to be the pension as on 01.01.1996. 1.12 On or about 27/10/1997, the criteria for determining the pension only for limited purpose, i.e., for immediate/interim relief was laid down for consolidation of pension for all pre-01/01/1996 pensioners, as prior thereto, the recommendations of the 5th Code of Civil Procedure had not been accepted. 1.13 The Government of India laid down the criteria of revision of pension of pre-01-01-1986 pensioners/family pensioners in order to bring them at par with post-01-01-1986 retirees on or about 10/02/1998. 1.14 The recommendations of the 5th Code of Civil Procedure were accepted in parts, as different recommendations were accepted at different times. 1.15 By a letter dated 07/04/1998, it was directed that NPA would be granted on a uniform rate of 25% of basic pay subject to the condition that the pay + NPA would not exceed Rs.29,500.00. per month. In the said letter, it was stated :-

(2.) . The undersigned is directed to say that in pursuance of Government's decision on the recommendations of Fifth Central Pay Commission, sanction of the President is hereby accorded to the regulation, with effect from 1.1.1996, pension/family pension of all the pre-1996 pensioners/family pensioners in the manner indicated in the succeeding paragraphs. 2.1 These orders to all pensioners/family pensioners who were drawing pension/family pension on 1.1.1996 under the Central civil Services (Pension) Rules, CCS ((Extraordinary Pension) Rules and the corresponding rules applicable to Railway pensioners and pensioners of All India Services including officers of the Indian Civil Service, retired from service on or after 1.1.1973 2.2 Separate orders will be issued by the Ministry of Defence in regard to Armed Forces pensioners/family pensioners. 2.3 These orders do not also apply to retired High Court and Supreme Court Judges and other Constitutional/Statutory Authorities where pension etc. is governed by separate rules/orders.

(3.) . In these orders : (a) 'Existing pensioner' or 'Existing family pensioners' means a pensioner who drawing/entitled to pension/family pension on 31.12.1995. (b) 'Existing pension' means the basic pension inclusive of commutated portion, if any, due on 31.12,1995. It covers all classes of pension under the CCS (Pension) Rules, 1972 as also Disability Pension under the CCS (Extraordinary Pension) Rules and the corresponding rules applicable to Railway employees and Members of All India Service. (c) 'Existing family pension' means the basic family pension drawn on 31.12.1995 under the CCS (Pension) Rules and the corresponding rules applicable to Railway employees and Members of All India Service. (d) 'Existing Dearness Relief means the relief due to pensioners/family pensioners upto average CPI 1510.