K K RAJAN Vs. DIRECTOR GENERAL

JUDGEMENT

(1.) When the petitioner retired as U.D. Clerk in the Department of Border Roads on 30-9-1986, his provisional pension was sanctioned as per Ext. P1. Including the basic pension of Rs. 476/-, personal pension of Rs. 46/- and Dearness Allowance of Rs. 96/-, the petitioner was getting Rs. 618/- per mensem. On the recommendations of the IVth Pay Commission, orders were issued by the Government of India modifying the Pension Rules. While the definition of 'pension' under Rule 3(o) of the C.C.S. (Pension) Rules was inclusive of gratuity except when the term 'pension' is used in contradistinction to gratuity, under the new Rules, it was further specified that it "does not include dearness relief". The impact of the said change was that when the pension was revised as per the new Rules, the petitioner was entitled to get basic pension of Rs. 551/-; but Dearness Allowance of only Rs. 22/- making in all Rs. 573/-, that is, resulting in a deficit of Rs. 45/- vis-a-vis what was granted under Ext. P1.

(2.) The learned counsel for the petitioner submits that the provisional pension granted under Ext. P1 has become final by virtue of Rules 64(6)(a) and 64(7) of the CCS (Pension) Rules and that in view of the prohibition in Rule 70 of the same Rules that pension once authorized shall not be revised to the disadvantage of the Government servant, unless such revision becomes necessary on account of detection of a clerical error subsequently, the reduction in pension ordered by the respondents is illegal and cannot be brought into force.

(3.) The learned Additional Standing Counsel appearing for the respondents submitted that the reduction in pension is a creation of the petitioner's own choice. Based on the recommendations of the IVth Pay Commission, new Pension Rules were brought into effect and as regards the persons who retired from service between 1-1-1986 and 30-6-1987, option was allowed to the pensioners to choose whether they wanted to continue in the old scale or to come over to the new scale. The impact of coming over to the new scale would not only cause change in the matter of pension amount; but also bring changes with regard to the arrears of salary, DCRG and commuted value of pension. There would also be a difference in the basic pension due to the pensioners irrespective of the total amount inclusive of Dearness Allowance. The petitioner, with his eye wide open, opted for the new rules and it was, accordingly, that the pension was revised as Rs. 573/- of which Rs. 551/- is the basic pension. In view of the change in the definition of 'pension' i.e., addition of the words "but does not include dearness relief", there was a reduction in the total pension; but the petitioner had taken into account the said prospect also while aiming at the increases he would get on other counts. First of all, his basic pension increased from Rs. 476/- to Rs. 551/-. That apart, his DCRG was enhanced to Rs. 18,330/- as against Rs. 15,993/- granted earlier. There was also increase in the commuted value of pension. Under the new Rules, he got Rs. 33,819/- against smaller amount originally sanctioned. The submission of the learned Additional Central Government standing counsel therefore is that the petitioner cannot be allowed to have only the advantageous portions of the benefits conferred under the new Rules and to retain the original pension along with that. He has either to take the new package as a whole or retain the benefits under the old scheme. He cannot have parts of both and enrich himself in such a way as to have the advantageous portions of both.