Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(SC) 276

SUPREME COURT OF INDIA
VINEET SARAN, ANIRUDDHA BOSE, JJ.
Dr. Y. Ibehaibi Devi (D) By Lrs. & Ors. – Appellant
Versus
The State Of Manipur Represented By The Commissioner (Higher And Technical Education) Government Of Manipur & Anr. – Respondent
Civil Appeal No.2681 of 2022 (Arising out of Special Leave Petition (C) No. 17253 of 2017)
Decided on : 31-03-2022

Advocates appeared:
For the Petitioner(s):Atul Kumar, Advocate
For the Respondent(s):Sanjay R. Hegde, Pukhrambam Ramesh Kumar, Anupama Ngangom, Karun Sharma, Ashutosh Dubey, Advocates

IMPORTANT POINT
(1) A clarificatory order cannot be permitted to override an order having statutory strength.
(2) Pension – Once appellants migrate into Rules guiding other State Government employees, appellants’ service origins become insignificant so far as application of substantive part of revision of Pension Rules is concerned.

Headnote:
Service Law – Pension – Retired College Staffs – Order of 12th August 2011 has been issued in name of Governor of State of Manipur – It can qualify for being an executive order in terms of Article 166 of Constitution of India as also a Rule made under proviso to Article 309 of Constitution of India – But Order of 12th August 2011 does not lay down any specific stipulation for retired college teachers or those holding equivalent grades barring clauses 7 and 8 thereof – These clauses also do not specify date from which revised pension is to be payable to retirees – So far as appellants are concerned, their migration into regime of 2010 Rules meant for State Government employees and their entitlement to revised pension from a date applicable to State Government employees has not been excluded by Order of 12th August 2011 made by Governor of Manipur, either expressly or by implication – No distinction is made in Clause 3.1 of O.M. of 5th May 2010 between different categories of employees – Once appellants migrate into Rules guiding other State Government employees, appellants’ service origins become insignificant so far as application of substantive part of revision of Pension Rules is concerned – Office Memorandum of 24th December 2011 is in nature of an administrative order – This Office Memorandum has not been made and executed in name of Governor – But this Office Memorandum seeks to take away substantive right of appellants cemented under Government Order made on 12th August 2011, read in continuation with Orders of 5th May 2010 and 3rd June 2011 – Course of action sought to be adopted by State is impermissible – Office Memorandum of 24th December 2011 though projected as an instrument to clarify a subsisting anomaly to an Office Memorandum having statutory strength, in reality encroaches upon acquired or vested right of retirees to get such benefit from 1st April 2010 – Such “clarificatory order” cannot be permitted to override an Order having statutory strength – Appellants shall be entitled to receive revised pension with effect from 1st April 2010, considering provisions of Clause 7 of Order of 12th August 2011 – Office Memorandum of 24th December 2011 would not have any binding effect so far as entitlement of appellants to receive revised pension from 1st April 2010 is concerned – Judgment under appeal set aside and judgment of Single Judge restored and affirmed. (Paras 12, 14, 15, 16 and 17)
Facts of the case:
Dispute involved in this appeal is as to whether appellants, as retired staffs from different colleges, are to get benefits of revised pension from the date given in the Office Memorandum of 24th December 2011 or from 1st April 2010, latter date being made applicable to those retired from various state services. The State Government wanted to implement revised pension from 1st November 2010.
Findings of Court:
In terms of Clause 3.1 of O.M. of 5th May 2010, the appellants have acquired a vested right to get revised pension from a date which is applicable to retired State Government employees. The appellants have been placed in the said pension regime, and this has been recognised by Clause 7 of Order of 12th August 2011.
Result : Appeal allowed.

JUDGMENT :

Leave granted.

2. The appellants before us are eight retired Assistant Professors and a College Librarian, also superannuated, from the State of Manipur. All of them had superannuated between 28th February 2006 and 31st July 2008. Subsequent to filing of the Petition for Special Leave to Appeal, eleven teaching staffs from different colleges in the same State have taken out an application for impleadment as petitioners. They are allowed to intervene in this appeal.

3. Decision was taken by the Government of India to revise the pay scales of teachers and equivalent cadres in the central universities and this was communicated by the Government of India to the University Grants Commission by a letter of 31st December 2008. The revised scales as per 6th Pay Commission recommendation were to be implemented by the State Governments as well. In the State of Manipur, Manipur Services (Revised Pay) Rules, 2010 were framed in exercise of power conferred under the proviso to Article 309 of the Constitution of India on 5th May 2010. Such Rules were to cover those appointed to Civil Services and posts in connection with the affairs of that State and which were under the rule making control of the Government of Manipur. Following the introduction of the Revised Pay Rules, certain modifications were made in the Rules guiding pension and allied benefits of those covered by the civil services rules in that State. These modifications were made by an Office Memorandum dated 5th May 2010 bearing no.9/3/2010FD (PIC) (“O.M. of 5th May 2010” in short) introduced by the Governor of Manipur. Though the source of power for making such modifications was not spelt out in the said memorandum, this was made in pursuance of the Government’s decision and fits the characteristic of a Rule made under proviso to Article 309 or an executive order made in terms of Article 166 of the Constitution of India.

4. Clause 3.1 of the O.M. of 5th May 2010 stipulated:

“3.1. Save as otherwise mentioned in these orders, the revised provisions as per these orders shall apply to

Government servants who retire/die in harness on or after 01/01/2006, notionally with effect from 01/01/2006 or from the data of retirement whichever is later, as the case may he with cash payment/actual benefit from 01/04/2010. Separate orders have been issued in respect of employees who retired/died before 01/01/2006.” (quoted verbatim from paperbook)

5. On 3rd June 2011 by way of an order issued in terms of the proviso to Article 309 of the Constitution of India, certain revisions of the scales of pay of different categories of posts in Government Colleges under the Department of Higher Education and Technical Education in the State of Manipur were mandated. This Order was to come into force with effect from 1st June 2006 and arrears for the period from 1st November 2010 to 30th June 2011 were to be deposited in the respective G.P.F. accounts of the employees. Clause 6 of this Order stipulated:

“6. Rules relating to pension, family pension, gratuity and encashment of leave, ex-gratia compensation, provident fund, etc. Shall be as applicable to other State Government employees.” (quoted verbatim from paperbook)

6. On 12th August 2011, another Order [bearing no.7(7)/32009 HE(Misc.)Pt.(1)] was issued superseding the Order of 3rd June 2011 in relation to different categories of college teachers (and equivalent grades) specifying the revised scale of pay. Clauses 3, 7 and 8 of this Order of 12th August 2011 read:

“3. These orders shall come into force nationally with effect from 01/01/2006 with monetary benefit from 01/11/2010 and actual case payment from 01/07/2011. The arrears for the period from 01/11/2010 to 30/06/2011 shall be deposited into their respective G.P.F Accounts of the employees.

However, for those employees who subscribe contribution under the New Pension Scheme and retired/ex

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