IMPORTANT POINT
Recommendations of the Pay Commission are subject to the acceptance/rejection with modifications of the appropriate Government. Therefore, a policy decision cannot be challenged on ground of estoppel.

Headnote:(i) SERVICE LAW—Pension—Claim of revision of pensionary benefits—Controversy relating to scale of pay recommended by 5th Pay Commission and corresponding acceptance of the Government—Recommendations of 5th Pay Commission were considered by Union of India and on 30-9-1997 a Policy Resolution was notified—Implementation and acceptance of Report followed by a large number of representations from pensioners—Executive Instructions issued in O.M. dated 17-12-1998 stating that pension to be computed on basis of minimum pay in the revised scale of pay w.e.f. 1-1-1996 of the post last held by the pensioner — O.M. dated 11-5-2001 clarifies it as minimum of the corresponding scale as on 1-1-1996 of the scale of pay held by the pensioner at the time of superannuation/retirement—Whether the Executive Instructions in the form of O.M. dated 11-5-2001 override the O.M. dated 17-12-1998—Executive Instructions dated 11-5-2001 were in the form of further clarifying the Executive Instructions dated 17-12-1998 and do not override the same.
       Held : The clarification brought out in the O.M. dated 17.12.1998 and O.M. dated 11.5.2001 is clearly discernible. Whereas O.M. dated 17.12.1998 speaks of the minimum pay in the revised scale of pay w.e.f. 1.1.1996 of the post last held by the pensioner, the O.M. dated 11.5.2001 clarifies it as minimum of the corresponding scale as on 1.1.1996 of the scale of pay held by the pensioner at the time of superannuation/retirement. The clarification brought about in the O.M. dated 11.5.2001 is of the last post held by the pensioner as the last scale of pay held by the pensioner at the time of superannuation/retirement.(Para 14
       It is common knowledge that the corresponding increase in any Pay Commission is of the scale of pay and not of the post.(Para 15)
       It is well settled principle of law that recommendations of the Pay Commission are subject to the acceptance/rejection with modifications of the appropriate Government. It is also well settled principle of law that a policy decision of the Government can be reviewed/altered/modified by Executive Instructions. It is in these circumstances that a policy decision cannot be challenged on the ground of estoppel. In the present case, the recommendations of the 5th Pay Commission were accepted by a Policy Resolution dated 30.9.1997 that the ceiling on the amount of pension will be 50% of the highest pay in the Government. The pension of all pre 1.1.96 retires including pre-86 retires shall be consolidated as on 1.1.1996, but the consolidated pension shall not be brought on to the level of 50% of the minimum of the revised pay of the post held by the pensioner at the time of retirement. The subsequent O.M. dated 17.12.1998 clarified the Policy Resolution dated 30.9.1997 by Executive Instructions in O.M. dated 17.12.1998 and further clarified in the form of O.M. dated 11.5.2001 clarifying the contents of Policy Resolution of the Government dated 30.9.1997. They are both complementary to each other. Both clarify the Government Policy Resolution dated 30.9.1997. The appellants are not aggrieved by the Executive Instructions in O.M. 17.12.1998. In our view, therefore, the contention of the appellant that the O.M. dated 11.5.2001 over-rides the original O.M. dated 17.12.1998, thereby creates two classes of pensioners is absolutely ill-founded and untenable.(Para 17)
       It is common knowledge that an increase in the pay scale in any recommendation of a pay commission is a corresponding increase in the pay scale. In our view, therefore, Executive Instructions dated 11.5.2001 have been validly made keeping in view the recommendations of the Pay Commission accepted by the Policy Resolution of the Government on 30.9.1997, clarified by Executive Instructions dated 17.12.1998. The Executive Instructions dated 11.5.2001 neither over-ride the Policy Resolution dated 30.9.1997 nor Executive Instructions dated 17.12.1998 clarifying the Policy Resolution dated 30.9.1997. The Executive Instructions dated 11.5.2001 were in the form of further clarifying the Executive Instructions dated 17.12.1998 and do not over-ride the same.(Para 18)
       For the reasons aforestated, the view taken by the Madras High Court that the clarificatory Executive Instructions in O.M. dated 11.5.2001 are an integral part of the O.M. dated 17.12.1998 clarifying the Policy Resolution of the Government dated 30.9.1997 and do not over-ride the original O.M. dated 17.12.1998 is correct law and it is, accordingly, affirmed. The view taken by the Delhi High Court that O.M. dated 11.5.2001 over-rides the original O.M. dated 17.12.1998 and creates two classes of pensioners does not lay down the correct law and is, hereby, set aside.(Para 27)
       (ii) Constitution of India—Article 136—Special Leave Petition—Dismissal in limine without speaking order —Whether doctrine of merger is attracted—(No).(Para 26)

JUDGMENT

H.K. Sema, J.—Civil Appeal Nos. 3174 and 3173 of 2006 are preferred by the pensioners against the judgment and order of the High Court of Madras dated 29.4.2005 in Writ Petition Nos. 24444-24451/2001, 14913/2002 and 32527/2004. Civil appeal Nos. 3188, 3189 and 3190 of 2006 are preferred by the Union of India against the judgments and orders of the Delhi High Court dated 17.8.2005, 5.9.2005, 10.11.2005 and 3.8.2005 passed in W.P. Nos. 17745/2004, 16975/2005, 6831/2004, 4597/2003 respectively.

2. We have heard Mr. P.A. Kulkarni, Mr. T. Harish Kumar, Mr. C.S. Rajan, Mr. Sanjeev Kumar Chaudhary and Mr. Prashant Bhushan, learned counsel appearing for different appellants/respondents.

3. In all these appeals, the controversy relates to the scale of pay recommended by the 5th Pay Commission and corresponding acceptance of the Government by a Policy decision dated 30.9.1997 and Executive Instructions dated 17.12.1998 clarified by Executive Instructions dated 11.5.2001.

4. We may briefly notice the scale of pay enjoyed by the employees at the time of retirement and corresponding increase in the 4th and the 5th Pay Commission.

Civil Appeal No. 3174 of 2006

5. The appellants were holding the post of Superintending Engineers in All India Radio. They retired from service on attaining the age of superannuation between 1982 to 1985. Undisputedly, at the time of retirement, they were holding the scale of pay of Rs. 1500-2000. In the 4th Pay Commission, their scale was revised to Rs. 3700-5000. In the 5th Pay Commission Report, which was accepted w.e.f. 1.1.1996, their scale was correspondingly revised to 12000-16500.

6. The employees, who had rendered 13 years of service, were granted special grade in the pay scale of Rs. 2000-2250. This special scale of pay was confined to 20 senior incumbents. In the 4th Pay Commission, their scale was correspondingly revised to 4500-5700. In the 5th Pay Commission, this scale was correspondingly revised to 14300-18300 w.e.f. 1.1.1996. It is undisputed that the appellants never enjoyed the special scale of Rs. 2000-2250. They claimed the pensionary benefits on the basis of scale of Rs. 14300-18300, which was rejected by the High Court.

Civil Appeal No. 3173 of 2006

7. The appellant retired on 30.9.1993 as Member (Personnel) Postal Services Board in the pay scale of Rs. 7300-8000. In the 5th Pay Commission, the scale was revised to Rs. 22400-26000 w.e.f. 1.1.1996. The Ministry of Finance, by a Memorandum dated 30.6.1999, revised scale of certain high posts upwards and revised the scale of three posts of Members as 24050-26000. The appellant claimed that he is entitled to the same upward revision of pay. His claim was contested by the Union of India that upward revision of Office Memorandum dated 30.6.1999 is only prospective in nature and, therefore, the same is not applicable to the case of the appellant, as he was a Member only upto 30.9.1993.

Civil Appeal No. 3188 of 2006

8. The respondents were the General Managers in the Indian Railways, retired prior to 1.1.1996. They were holding the pay scale of Rs. 7300-8000/- at the time of their retirement. In the 5th Pay Commission, their scale was correspondingly revised to Rs. 24050-26000. Their claim was rejected by the Tribunal. However, the High Court upset the order of the Tribunal and, hence, the present appeal by the Union of India.

Civil Appeal No. 3189 of 2006

9. The respondent was Technical Adviser in the Department of Women and Child Development, Ministry of Human Resource Development. He retired on 30.11.1995 in the pay scale of Rs. 3700-5000. In the 5th Pay Commission, the scale was correspondingly revised to Rs.12000-16500. The respondent claimed the scale of Rs. 14300-18300. His claim was rejected by the Central Administrative Tribunal. The Tribunal’s order was, however, upset by the High Court by the impugned order.

Civil Appeal No. 3190 of 2006

10. The respondent retired as Director in the Central Secretariat Official Language Ser

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2006 Supreme(SC) 1168

IMPORTANT POINTRecommendations of the Pay Commission are subject to the acceptance/rejection with modifications of the appropriate Government. Therefore, a policy decision cannot be challenged on ground of estoppel.

Cases Referred (9)

IMPORTANT POINT
Recommendations of the Pay Commission are subject to the acceptance/rejection with modifications of the appropriate Government. Therefore, a policy decision cannot be challenged on ground of estoppel.