(1.) THE first respondent in W. P. Nos. 24444/2001 to 24451/2001 is the respective pensioner retired from Government of India service. The writ petitioner in W. P. No. 14913/2002 is the first respondent / pensioner in W. P. No. 24450/2001. The first respondent in W. P. No. 30047/2002 and W. P. No. 32527/2004 are again the respective pensioner retired from Government of India service. The writ petitioner in W. P. No. 45135/2002 is yet another pensioner retired from Government of India service. Each of the pensioner in W. P. Nos. 24444/2001 to 24451/2001 went before the Central Administrative Tribunal, Madras Bench by way of separate applications claiming payment of pension calculated on the minimum scale of pay of Rs. 14,300 18,300 the revised pay scale introduced with effect from 01. 01. 1996. Incidentally, any individual order passed against them denying such pension benefit was sought to be quashed. All those applications were taken up on file by the Central Administrative Tribunal, Madras Bench as O. A. Nos. 432 to 438/2000 and 639/2000. By a common judgment dated 21. 06. 2001, all the original applications were ordered granting the substantial relief namely, each of the pensioner is entitled to the benefit of the office memorandum dated 17. 12. 1998 and that their pension has to be calculated on the minimum pay scale on Rs. 14,300 18-300, being the revised pay scale introduced with effect from 01. 01. 1996 and fixed a time schedule for compliance of the said order. The writ petitioner in W. P. No. 14913/2002 challenges O. M. No. 45/86/97 dated 11. 05. 2001. In W. P. No. 30047/2002, the Union of India is challenging the relief granted to the first respondent therein/pensioner by the Central Administrative Tribunal, Madras Bench in O. A. No. 181/2001. In that case, the pensioner went before the Tribunal to set aside the order denying him his fixation of pension on the revised pay scale introduced with effect from 01. 01. 1996 and for fixation of his pension on the revised pay scale namely, Rs. 14,300 18,300. The Tribunal allowed the original application and granted the relief directing the authorities concerned to fix the pension payable to the pensioner at not less than 50% of the corresponding pay scale as on 01. 01. 1996 on the scale of Rs. 4,500 5,700 drawn by him at the time of his superannuation on 31. 05. 1986. In W. P. No. 45135/2002 the pensioner is the writ petitioner. He went before the Central Administrative Tribunal, Madras Bench in O. A. No. 1307/2001 for a direction to the concerned authority to fix his pension on the revised pay scale of Rs. 14,300 18,300 with effect from 01. 01. 1996, which was negatived by the Tribunal taking into account the office memorandum dated 11. 05. 2001. In W. P. No. 32527/2004 the Union of India is challenging the order in O. A. No. 953/2003 on the file of the Central Administrative Tribunal, Madras Bench, directing the fixation of the pensioner's pension on the basis of the office memorandum dated 17. 12. 1998. The pensioner's case is that his pension must be fixed on the revised pay scale of Rs. 24,050 26,000 introduced with effect from 01. 01. 1996 in replacement of his earlier pay scale of Rs. 22,400 26,000.
(2.) HEARD the learned Additional Solicitor General for the Union of India; Mr. K. Subramaniam learned senior counsel appearing for the pensioners in W. P. Nos. 24444/2001 to 24451/2001 and for the petitioner in W. P. No. 14913/2002; Mr. L. Chandrakumar; M/s. Paul and Paul and Mr. S. Muthukumar for the pensioners in the other three writ petitions. Learned Additional Solicitor General would submit that the pensioners' pension in this case, if has to be fixed on the basis of the office memorandum dated 17. 12. 1998, then, as directed in that office memorandum, it shall not be less than 50% of the minimum of the revised scale of pay introduced with effect from 01. 01. 1996 for the post last held by the pensioner at the time of his retirement. Admittedly, on the date of retirement, the pensioners in W. P. Nos. 24444/2001 to 24451/2001 and the pensioner in W. P. No. 14913/2002 (he is the pensioner in W. P. No. 24450/2001) were drawing a pay in the scale of pay of Rs. 1,500-2000, having reached the maximum. They were all working as the Superintending Engineer at that time. All of them retired before the recommendation of the 4th Pay Commission. That scale of pay namely, Rs. 1,500-2000 received by each one of them on the date of their retirement was stepped up to Rs. 3,700 5,000 pursuant to the recommendation of the 4th Pay Commission, which again correspondingly was stepped up to Rs. 12,000 16,500 consequent to the recommendation of the 5th Pay Commission with effect from 01. 01. 1996. They having retired even prior to the 4th Pay Commission recommendation, as per the O. M dated 17. 12. 1998, their pension was fixed after the 5th Pay Commission recommendation calculated on the pay scale of Rs. 12,000 16,500 correctly. There was a selection grade with a pay scale of Rs. 2,000 2,250, which was increased to Rs. 4,500 5,700 after the 4th Pay Commission recommendation with effect from 01. 01. 1986 and again it was increased to Rs. 14,300 18,300 with effect from 01. 01. 1996 after the 5th Pay Commission recommendation. None of the pensioners were receiving pay in the pay scale of Rs. 2,000 2,250 prior to the date of their retirement (all the pensioners are shown to have retired between 1983-1985) and therefore the corresponding increase given to that pay scale would not be to the advantage of the pensioners. Learned Additional Solicitor General would then submit that the proceedings No. 310/169/97-B (D) dated 18. 12. 1997 of the Ministry of Information and Broadcasting would not apply retrospectively but only apply prospectively and in any event, it would not apply to pensioners. In other words, those who were actually working as on 01. 01. 1996 with the qualifying 13 years of service as on that day alone would be entitled to the benefit of the proceedings dated 18. 12. 1997 and since all the pensioners have retired between 1983 and 1985, it will not be applicable at all to them. Learned Additional Solicitor General would then submit that in any event under the clarificatory O. M dated 11. 05. 2001, it is made clear that the revised pay scale introduced as on 01. 01. 1996 should correspond to the scale of pay held by the pensioner at the time of their superannuation and retirement. Since all the pensioners represented by Shri. K. Subramaniam learned senior counsel were drawing a scale of pay of Rs. 1,500 2,000 only on the date of their retirement, their pension has to be fixed only on the revised pay scale of Rs. 12,000 16,500 as introduced with effect from 01. 01. 1996. Learned Additional Solicitor General would then submit that whatever right any pensioner has, it gets crystalised on the date of his superannuation and therefore all pension benefits that accrues to the pensioner thereafter would be based only on those rights that were in existence on the date of his retirement in the context of any corresponding revision. Learned Additional Solicitor General cited a number of authorities for the above position and we will refer to it later on, if need arises, in this order.
(3.) ON the contra, Mr. K. Subramaniam learned senior counsel appearing for the pensioners mentioned earlier would submit that the Government of India, as a policy decision, announced certain benefits to the pensioner in the office memorandum dated 17. 12. 1998. It is an executive action taken under Article 77 of the Constitution of India. The clarificatory office memorandum dated 11. 05. 2001 is not in accordance with Article 77 of the Constitution of India, since it is not shown to have been issued in the name of the President while the office memorandum dated 17. 12. 1998 is issued in the name of the President. Therefore, having regard to the constitutional protection given to the office memorandum dated 17. 12. 1998 under Article 77 of the Constitution of India, the rights given to the pensioner under that instrument cannot be taken away by the proceedings dated 11. 05. 2001 relied upon by the learned Additional Solicitor General, which is only a decision taken at the lower level. Therefore the submission is that, as the proceedings dated 11. 05. 2001 is not in compliance of Article 77 of the Constitution of India, it must be struck off. Then the learned senior counsel submitted that once the Government of India takes a policy decision to give certain benefits to the pensioners, it is not open to the court to test the correctness or otherwise of the said policy decision, so long as it is not in violation of any provision of law and found to be arbitrary. The office memorandum dated 17. 12. 1998 must be read along with the proceedings dated 18. 12. 1997 and if so read, the pensioner's right to claim pension calculating the same on Rs. 14,300 18,300 cannot be denied. Learned senior counsel, relying upon the proceedings dated 18. 12. 1997, would submit that when the office memorandum dated 17. 12. 1998 was brought into force, it must be held that they had the proceedings dated 18. 12. 1997 in their mind. All the pensioners, for whom he appears, have put in more than 13 years of service and therefore reading the proceedings dated 18. 12. 1997, it can be easily said that all the pensioners were in the upgraded revised pay scale of Rs. 14,300 18,300 and if that is accepted, under the office memorandum dated 17. 12. 1998, each pensioner shall not get less than 50% of the pay last drawn by them.