Re: ISRO scientists' pay: apex court dismisses plea
RAJENDRA KUMAR C L
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH
AT HYDERABAD(Special Original Jurisdiction)
FRIDAY, THE TWENTY SIXTH DAY OF SEPTEMBER
TWO THOUSAND AND EIGHT
PRESENT
THE HON'BLE MR JUSTICE GHULAM MOHAMMED
and
THE HON'BLE MR JUSTICE G.BHAVANI PRASAD
WRIT PETITION NO : 267 of 2008
Between:
1 Union of India, Government of India Rep by its Secretary,
Ministry of Defence, Sena Bhavan, New Delhi - 110 001.
2 The Director General Research and Development Defence Research & Development Organisation, Ministry of Defence, South block, DRDO Bhavan, Rajaji Marg, New Delhi - 110 011...... PETITIONERS
AND
1 Shri K. Mallikharjuna Rao, S/o. Shir Venkata Rama Murthy,
Dr.No. 18-8-254/A/1/20, Bharat Ratna Colony,
PO : Saidabad, Hyderabad - 500 059.
2 Dr. R L Saha, S/o. Rajendra Lal Saha,
H.No. 822, Bhart Ratna Colony, PO : Saidabad, Hyderabad - 500 059.
3 Dr. Trilok Singh, S/o. Raj Singh,17-1-382/51/B, Bhanu Nagar, Sagar Road, Hyderabad - 500 079.
4 Mr. SR Sahay, S/o. C Sahay, 9-40, Old Gayatri Nagar, PO : Vaishali Nagar, Hyderabad - 500 079.
5 Mr G. Nagendra Rao, S/o. G. Somalingam,
1-8-254/16 Rakshapuram Colony, PO : Saidabad,
Hyderabad - 500 059.
6 Mr. K. Vishunvardhana Rao, S/o. K. Nagaiah,
"Katyayani" 17-1-391/1/13, SBH Officer's Colony, PO : Saidabad, Hyderabad - 500 059.
7 Mr. DC Govil, S/o. Jwala Prasad,
Mayuri Nagar, Miyapur, Hyderabad - 500 049.
8 Mr. Rampal, S/o. Ram Rakha Mal,
1-8-254/72, Rakshapuram Colony, PO : Saidabad,
Hyderabad - 500 059.
9 Dr. T R S Reddy, S/o. Dr. T. Venkataramana Reddy,
73A Shanti Nagar, Hyderabad - 500 028.
10 Mr. N. Shanmugam, S/o. V N Narayana Swamy,
Flat No. 303, Srinivasa Residency, St. NO. 9, New Narayanaguda, Himayatnagar,
Hyderabad - 500 029.
11 Mr. A Gangadhara Rao, S/o. A V G Krishna Murthy,
60-B, Santosh Nagar Colony, Hyderabad - 500 059.
12 Mr. Balaram Gupta, S/o. Roshan Lal Gupta,
H.No. 18-8-254/2 'Raj Kuteer' Rakshapuram Colony, PO : Saidabad,
Hyderabad - 500 059......RESPONDENTS
Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue Writ or direction more particularly in the nature of Certiorari calling for the records pertaining to order dated 29-3-2007 in OA No. 184 of 2006 on the file of Hon'ble Central Administrative Tribunal, Hyderabad Bench, and consequentially quash the same by declaring the said order as illegal, arbitrary, violation of principles of law.
Counsel for the Petitioner:MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN)
Counsel for the Respondents : MR.P.V.RAMANA FOR R
The Court made the following :
ORDER: (Per GM, J)
Aggrieved by the order, dated 29.03.2007, passed in O.A.No.184 of 2006 by the Central Administrative Tribunal, Hyderabad Bench, Hyderabad, the present writ petition is filed.
The petitioners herein are the respondents and the respondents herein are the applicants in O.A.No.184 of 2006 filed seeking a direction to the respondents to consider the special pay of Rs.2,000/- per month granted in lieu of separate higher pay scale for the purpose of pension and other retirement benefits. For the purpose of convenience, the parties hereinafter are referred to as arrayed in O.A.
The brief facts of the case are that the Government of India had issued an office Memorandum, dated 03.02.1999, granting special pay to the Scientists, as an incentive, at the rate of Rs.2000/-per month in the pay scale of Rs.18,400-22,400/-, in lieu of separate higher pay scale after peer review and also two additional increments in the pay-scales of Rs.10,000-15,200; 12,000-16,500; 14,300-18,300 and 18,400-20,000 after their normal pay fixation. The applicants, who retired as Scientists ‘G’ in the pay scale of Rs.18,400/-500/-22,400/-, were granted special pay of Rs.2,000/- per month, in lieu of separate higher pay scale after peer review from the date of promotion as Scientist ‘G’ till the date of retirement, however, the same was not considered for computing the pension and retirement benefits. Therefore, they made representations to the respondents and the same were disposed of holding that the case of the applicants for counting special pay of Rs.2000/- per month for the purpose of pension was taken up with the Ministry of Finance, who have declined to agree to the said proposal. Thereafter, an official memorandum was issued by the respondents on 12.08.1999 clarifying that the special pay will not be treated as part of pay for the purpose of DA, HRA, pension etc.
While so, in O.A.No.1153 of 2002 filed by one of the employees of Department of Space, the Tribunal quashed and set aside the said clarificatory Official Memorandum and directed the respondents therein to reconsider and take an appropriate decision in the matter, including grant of special pay of Rs.2000/-per month to Scientists/Engineers ‘H’ in the Department of Space w.e.f. 01.01.1996 as part of pay, and the same has been implemented by the Department of Space and Department of Atomic Energy. Aggrieved by the same, the respondents filed a writ petition before the High Court of Delhi. However, as no material has been produced, nor the number of the said writ petition could be given, the Tribunal ordered O.A.184 of 2006, directing the respondents to re-consider the case of the applicants and if the applicants are similarly situated to that of applicant in O.A.No.1153 of 2002, they shall extend the benefits to them in the same manner as was done by Department of Space and Department of Atomic Energy. Aggrieved by the said orders, the present writ petition has been filed stating that under Rule 33 of CCS (Pension Rules) the term ‘emoluments’ for the purpose of drawing pension, does not include special pay and therefore, the special pay does not qualify to be reckoned for the purpose of calculation of pension.
The applicants filed a counter-affidavit stating that the direction in O.A.No.184 of 2006 is based on the decision in O.A.No.1153 of 2002, which has been assailed by filing W.P.No.1710 of 2007 before the High Court, Delhi and the competent authority has decided to await final outcome in the said writ petition. Since there was no stay of the order passed in O.A.No.1153 of 2002, the applicants have got issued notice to the respondents and since there is no response from them, they were constrained to file C.C.No.60 of 2007. While the contempt case is pending before the Tribunal, the writ petitioners filed this writ petition and obtained interim suspension of the impugned order.
Heard learned counsel for both the parties.
Learned Standing Counsel for the writ petitioners mainly contended that the Tribunal has failed to appreciate Rule 9(21)(a) of the Fundamental Rules, which does not include the term ‘special pay’ to which a Government servant is entitled to. He further contended that as per Rule 33 of C.C.S.(Pension) Rules, the term ‘emoluments’, for the purpose of drawing pension, does not include special pay, and therefore, the special pay of Rs.2000/- sanctioned to the Scientists/Engineers does not qualify to be reckoned for the purpose of calculation of pension. He also contended that the official memorandum, dated 03.02.1999, neither classified the special pay as pay under the provisions of FR 9(21)(a), nor is there any indication to that effect, and therefore, the special pay, which does not fall under FR 9(21)(a) cannot be allowed as part of ‘emoluments’ provided for under Rule 33 of CCS (Pension) Rules for the purpose of calculation of pension.
On the other hand, the learned counsel for the applicants contended that once the President of India has passed the official memorandum, dated 03.02.1999, granting special pay, in lieu of higher pay scale, the question of restricting the said orders under Rule 33 of CCS (Pension) Rules for the purpose of counting retiral benefits does not arise. Learned counsel further submits that as per Rule 9 (21) (a) of the Fundamental Rules, the special pay is also to be treated as part and parcel of the pay and even though Rule 33 of CCS (Pension Rules), does not cover the situation, the benefit of special pay cannot be ignored for calculation and inclusion of the said benefit for the purpose of pensionary benefits, as it was granted in lieu of higher pay scales. Learned counsel also contended that it is settled principle of law that the points which were not raised before the primary authority, cannot be permitted to be raised for the first time before the higher authority. Therefore, the writ petitioners are not entitled to raise the ground in respect of Rule 33 of the CCS (Pension) Rules for the first time before this Court.
Rule 9 (21)(a) of the Fundamental Rules reads as under;
”(21)(a) Pay means the amount drawn monthly by a government servant as-
(i) the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity, or to which he is entitled by reason of his position in a cadre, and
(ii) overseas pay, special pay and personal pay; and
(iii) any other emoluments which may be specially classed as pay by the President”.
Rule 33 of the Fundamental Rules reads as under:
“The expression ‘emoluments’ means basic pay as defined in Rule 9(21)(a)(i) of the Fundamental Rules which a Government servant was receiving immediately before his retirement or on the date of his death; and will also include non-practising allowance granted to medical officer in lieu of private practice”.
There is serious controversy between the parties as regards special pay of Rs.2,000/- being part of pay for all purposes including pensionary benefits.
On consideration of the material placed before it, the Tribunal, has observed that under FR 9(21)(a)(iii) it is open to the President to grant any other emoluments, including special pay, which may be classed as pay of a Government servant; that the Presidential Order cannot be materially altered as modified by the subordinate authority by way of clarification memorandum dated 12.08.1999, issued in the subsequent official memorandum and that the provisions of FR 9(21)(a)(ii) do not also exclude the special pay and personal pay as part of pay and accordingly the clarificatory Official Memorandum dated 12.08.1999 was quashed and set aside with regard to non-inclusion of the special pay as part of pay for the purpose of pension, having regard to the provisions of the earlier Official Memorandum issued by the Government on 03.02.1999 and also directed to reconsider the matter and take appropriate decision, including the grant of special pay of Rs.2,000/- per month to Scilentists/Engineers ‘H’ in the Department of Space/ISRO with effect from 01.01.1996 as part of pay, within three months from the date of order.
On perusal of the detailed order passed by the Tribunal, we do not find any illegality or material irregularity warranting interference by this Court. That apart, the writ petitioners are not entitled to raise the plea of Rule 33 of CCS (Pension) Rules for the first time before this Court.
Hence, the writ petition is devoid of any merit and the same is accordingly dismissed. However, the writ petitioners are directed to implement the orders impugned within four months from the date of receipt of a copy of this order. No costs.
______________________
GULAM MOHAMMED, J
_____________________
G. BHAVANI PRASAD, J
Date:25.09.2008
sj
IN THE HIGH COURT OF DELHI AT NEW DELHI
15.05.2008
Present: Mr. H.K. Gangwani for the petitioner.
Mr. Shailesh K. Kapoor with Ms. Shipta Gupta for respondent.
WP (C) No. 1710/2007
The respondent herein retired from service in the year 2000. On his
retirement, the pension payable to him was computed and while doing so Special Pay of Rs.2,000/-, which he was drawing, was not included. Challenging this action of the petitioner herein, the respondent filed OA No. 1153/2002 before the Central Administrative Tribunal, Principal Bench, New Delhi. This OA was decided by the Tribunal in his favour vide judgment dated 14.5.2003 with the following directions :-
?(1) Para 1(c) of the clarificatory O.M. dated 12.8.1999 issued by the
respondents is quashed and set aside with regard to non-inclusion of the special pay as part of pay for purposes of pension, having regard to the provisions of the earlier O.M. issued by the respondents dated 3.2.1999.
(2) The respondents are accordingly directed to reconsider the matter and
take an appropriate decision in the matter of including the grant of special pay of Rs.2,000/- p.m. to scientists/Engineers ?H? in the Department of Space/ISRO w.e.f. 1.1.1996 as part of pay, keeping in view the aforesaid observations.
(3) The above action shall be taken within three months from the date of
receipt of a copy of this order with intimation to the applicant.
(4) The applicant shall be entitled to the revision of pension, retiral
benefits as a result of the above decision, which shall be paid to him
expeditiously and in any case within one month thereafter.?
The petitioner has filed this petition challenging the aforesaid judgment
only in March 2007, i.e. after a period of more than 3? years. The only
explanation given in the writ petition for coming to this Court at such a
belated stage is that the petitioner department, namely, Department of Space,
did not consult the nodal agencies, i.e. the Department of Pensions and
Pensioners? Welfare and Ministry of Finance, the Department of Expenditure as well as the Law Ministry and complied with the directions of the Tribunal. This is hardly an explanation for filing the petition at such a belated stage.
As per the petitioner?s own showing, after the judgment was rendered by
the Tribunal, the same was implemented and order to this effect was issued. As per this order, it was decided that: ?the special pay will not be treated as
part of pay for purposes of DA and HRA but the same may be treated as part of
pay for the purpose of pensionary benefits w.e.f. 1.1.1996.? On this basis, the
pension was re-computed and the respondent started getting pension at the
revised rate after the passing of the aforesaid order. Not only this, he was
even paid the arrears of pension worked out on that basis from the date of his
retirement. In such circumstances, it would not be proper to entertain the
petition at this stage when the petitioners have themselves implemented the
judgment and as per the said judgment the respondent is also getting the benefit for the last number of years.
We, thus, dismiss this petition not only on the ground of laches and
delays, but also on the ground that the judgment of the Tribunal stands
implemented by the petitioners, with costs quantified at Rs.5,000/-
..... REGISTRAR
// TRUE COPY //
SECTION OFFICER
To
1.2CCs to
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Great.Congratulations –Retd ISRO Scientists drawing spl pay!Apex Court has rightly dismissed the SLP of the ISRO administration!WHY DO POWERFUL EX BOSSES OF ISRO/ DOS ALLOW THIS TYPE OF “SILLY” SLPs TO BE FILED BY ISRO ADMIN?Yes. TO GET MORE DETAILS-AS TO HOW TO GET COPY OF JUDGMENT ETC..HOPE CGS29PA ALSO REPEATS THE SAGA AT HC AND HSC IF THE GOVT SO CHOOSES TO GO FOR APPEAL/STAY/SLP ETC AGAINST PR CAT JUDGMENT!VNFrom: K RSent: Friday, November 11, 2011 5:49 PMSubject: ISRO scientists' pay: apex court dismisses pleaSorry for intrusion.Can anyone give more information, viz., case No., Respondents / Petitioner / Advocate in the case that is referred to in the following News item? Thanks.The Hindu Dated June 12, 2011
ISRO scientists' pay: apex court dismisses plea
J. VENKATESANThe Supreme Court has declined to interfere with a judgment of the Kerala High Court, directing the Department of Space to pay allowances for two additional increments granted as incentive to scientists/ engineers-SD, SE, SF and SG of Indian Space Research Organisation (ISRO), Thiruvananthapuram.
A Bench of Justice H.S. Bedi and Justice C.K. Prasad recently dismissed a special leave petition (SLP) filed by ISRO Chairman against the High Court judgment dated January 18, 2007 and a subsequent order dated July 16, 2007.
Acting on a writ petition from United Co-operative Front, the High Court had held that the additional increments granted to the scientists fell within the definition of pay.
High Court order
The High Court had said, “Necessarily all attributes that may be added to emoluments reckoning pay shall have to be paid to them, whether it is Dearness Allowance, HRA. Equally so is pension to retired employees, because pension is also reckoned based on the pay drawn.” The SLP by the ISRO was directed against this order.
Department stand
The Department took the stand that the benefits extended to scientists/engineers were treated as incentives and they would not confer any legal right on them nor did they constitute conditions of service.
These additional increments were added over and above the basic pay and the basic pay would not increase due to these additional increments.
It said as part of the exercise to attract, retain, and motive scientists/engineers to give their best, the department, after obtaining approval from the Union Cabinet, had issued orders on February 3, 1999 sanctioning certain additional increments, special pay, and also professional update allowance.
The circular clearly clarified that these increments would not be treated as pay for the purposes of DA, HRA, pension etc.
The SLP sought quashing of the High Court judgment. The Supreme Court Bench did not accept these contentions and passed a brief order dismissing the SLP.
gurudas sivadas
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Subject: [KCGPA] Re: ISRO scientists' pay: apex court dismisses plea
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