RETIRED RAILWAY DRIVERS ASSOCIATION Vs. UNION OF INDIA

JUDGEMENT

(1.) PETITIONER No. 1 is an Association of Retired Railway Drivers. Petitioner No. 2 is the Secretary of this Association and petitioner Nos. 3 to 130 are its members as they are the retired employees and they are receiving the pension. The drivers in the Railway are getting Running Allowance. Third Central Pay commission, which gave its report in the year 1973, had recommended the continuation of Running Allowance and its computation to the extent of 75% for working out the quantum of pension. Thus, while fixing the pension of these drivers on their retirement, their pension was fixed after taking into consideration 75% of the Running Allowance. Letter dated 21. 1. 1974 was also issued by the Railway Board in this behalf. However, vide another letter dated 23. 2. 1976, percentage of the Running Allowance for computing the pension was reduced from 75% to 45% with effect from 1. 1. 1973. Thereafter, vide another letter dated 17. 7. 1981 it was raised to 55% with effect from 1. 4. 1979. Against these reductions a writ petition came to be filed in this Court. On the creation of Central Administrative Tribunal (CAT) under the Administrative tribunal Act, that petition was transferred CAT, Principal Bench, New Delhi. This petition was allowed vide judgment dated 6. 8. 1986. This case, i. e. Deo dutt Sharma v. Union of India and Ors. is reported as 1986 (1) ATC 4646. The union of India/railway Administration did not question this order of the tribunal. Instead, Notification dated 5. 12. 1988 was issued amending Rule 2544 of the Indian Railway Establishment Code (hereinafter, ?the Code?) making the said amendment operative from 1. 1. 1973 and 1. 4. 1979 respectively providing therein that percentage of the Running Allowance for computation of pension would be reduced from 75% to 45% and 55% with effect from 1. 1. 1973 and 1. 4. 1979 respectively. We may note that the Tribunal in its judgment dated 6. 8. 1986 had quashed the earlier orders on the ground that under the Code, which is of statutory nature, framed under Article 309 of the Constitution of India, Running allowance of 75% for the purpose of computation of pension was provided, which statutory right could not be taken away by mere executive instructions. Obviously, to overcome this difficulty, vide Notification dated 5. 12. 1988, the said Rule 2544 was amended. However, this notification was challenged by filing an OA before the Ernakulum Bench of CAT. The said Bench vide judgment dated 2. 4. 1990 quashed the notification so far it gave retrospective effect. Same challenge was made by filing OA in the Principal Bench at New Delhi as well. However, the New Delhi Bench dismissed the challenge to the validity of the notification. As conflict arose between the two views, one taken by the ernakulum Bench and the other by the New Delhi Bench, matter came to be referred to the Full Bench, which agreed with the view taken by the Ernakulum Bench. The government challenged this decision before the Supreme Court which was repelled as the appeal was dismissed vide judgment dated 25. 7. 1997 in the case of chairman, Railway Board and Ors. v. C. R. Rangadhamaiah and Ors. AIR 1997 SC 3828. However, the petitioners in this petition, who retired after 5. 12. 1988, made a representation dated 25. 8. 1998 basing their case on the aforesaid judgment of the Supreme Court and seeking extension of benefit thereof. It was followed by various reminders and ultimately OA under Section 19 of the administrative Tribunal Act was filed before the Principal Bench of CAT at New delhi on 14. 12. 1999. This OA has finally been rejected vide judgment dated 10. 12. 2001 holding that the Supreme Court has upheld Rule 2544 prospectively and, therefore, the petitioners cannot draw benefit therefrom.

(2.) IT is not in dispute that these petitioners have retired from service after the amendment of Rule 2544 of the Code whereby the Running Allowance, for the computation of pension, stands reduced from 75% to 45%. In Rangadhamaiah (supra), the Supreme Court has held that the amendment cannot be given retrospective effect. Therefore, to that extent the said judgment is of no help to the petitioners herein. The petitioners can succeed only if they are able to prove that the amendment to the Rule is illegal even if it is prospective in nature.

(3.) IN para 14 of the judgment in Rangadhamaiah (supra), the Supreme Court has formulated the question that had arisen for consideration in the following words:-?14. The question which, therefore, needs to be examined is whether the amendments made in Rule 2544 by the impugned notifications, to the extent they have been given effect from January 1, 1973 and April 1, 1979, can be treated as a valid exercise of the power to make rules under the Proviso to Article 309 of the Constitution. ?