MALIN KANTA PAUL Vs. STATE OF TRIPURA

JUDGEMENT

(1.) These two cases involve the same question of fact and law and therefore, these two petitions are disposed of by this common order.

(2.) In WP(C) 62/00, the petitioner who is a State Govt. pensioner, challenges the legality of the notification of the Govt. of Tripura in the Finance Department No. 8(4)-Fin(G)/79-II by which the earlier notification dated 2.7.92 has been clarified. The petitioner prayed for quashing the said notification. The petitioner further prayed that the direction given by the High Court in its judgment dtd. 22.4.97 in Civ. Rule 259/95 be complied with by the State- respondents. It is submitted that the petitioner retired from the post of Physical Instructor under the education Department of the Govt. of Tripura on 1.1.1990. The State Govt. employees get their pension as per provision of the CCS (Pension) Rules, 1972 as adopted by the Govt. of Tripura in the Finance Deptt. by notification dtd. 8.8.1978. The dearness allowance of the Govt. servants is at par with the dearness relief given to the State pensioners. The State Govt. has been issuing notification from time to time declaring the enhancement in the rate of dearness allowance and dearness relief, but the rate and periodicity of increase was not at par with that of the Central Govt. servants or pensioners. The rate of dearness relief to the Tripura Govt. employees and pensioners as on 1.4.95 were 42% behind the rate available to the Central Govt. pensioners. The Central Govt. revised the rate of dearness relief and dearness allowance every six months - once in 1st January and again in 1 st July as a matter of routine, but the State Govt. was irregular in enhancing the rate of dearness allowance and dearness relief to the State Govt. employees and pensioners. The Central Govt. made an amendment in the CCS (Pension) Rules by a notification dtd. 22.1.91 by incorporating a new Rule 55(A) defining the clearness relief and its entitlement. The State Govt. adopted the aforesaid amendment of the Central Govt. which became a part of the Pension Rules applicable to the Tripura Govt. pensioners. The amendment was adopted by the State Govt. by a notification dtd. 2.7.92. It is alleged that even after the amendment of Rule 55(A), the State Govt. pensioners were not granted the dearness relief as available to the Central Govt. pensioners. It is further submitted that even after incorporation of Rule 55(A) in the Pension Rules, Tripura Govt. did not allow the dearness relief to the pensioners at the Central Govt. rate and as a result, a writ petition was filed by the Govt. pensioners Association, Tripura which was registered as Civ. Rule 259/95. The said case was decided on 22.4.97 and the High Court directed the State Govt. to pay dearness relief to all the State Govt. pensioners as are available to the Central Govt. pensioners. In compliance of the direction of the Court in Civ. Rule 259/95, the State Govt. released further dearness relief to the State Govt. pensioners by a notification dtd. 11.2.98. However, it is alleged by the petitioner that Tripura Govt. has with drawn the notification dtd. 2.7.92 by which Rule 55(A) was incorporated by the impugned notification dtd. 27.10.98. It is submitted that by withdrawing the notification, the State Govt. has violated the order of the Court passed in Civ. Rule 259/95 dtd. 22.4.97. In the meantime, a contempt application has been filed by the Govt. pensioners which has been registered as Contempt Case No. 17/99.

(3.) The petitioner challenges the notification dtd. 27/10/98 on the following grounds, namely : (a) That the notification is bad in law for taking away the accrued right of the petitioners in exercising the power of rule making authority. Such exercise of rule making power is on the face of it colourable and far exceeding the permissible limit of delegated legislation. (b) That the impugned notification is ultra vires to the provisions of Art. 309 of the Constitution which sought to give retrospective effect. (c) That the impugned notification was issued during the contempt proceeding. (d) That the impugned notification was not published in the official Gazette or other media for circulation and knowledge of the persons concerned. (e) That the impugned notification has taken away the right of the State Govt. pensioners to get dearness relief at par with the Central Govt. employees as per judgment dtd. 22.4.97 passed in Civ. Rule 259/95. It is, therefore, submitted that the impugned notification being ultra vires and bad in law has to be quashed. Accordingly, me petitioner has filed the present petition.