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2006 Supreme(Bom) 595
IN THE HIGH COURT OF BOMBAY
Anthony C. Monteiro
Versus
Govt. of Goa
Decided on, April 10, 2006
Headnote:CONSTITUTION OF INDIA, 1950 - Article 226 Revision of Pension for Pre 1986 Pensioners (Goa) Clauses 7.1 and 10(a) Family Pension/ Minimum Pension Employee opted for deputation to Goa Meat Complex Absorbed Applied for full benefits available to him in 1981 Seeking minimum pension of Rs. 375/p.m. Employees application of 1984 acted upon in 1990 Filed fresh application in 1990 Pension allowed to be commuted under Rules, 1972 at Rs. 145/p.m. as admissible prior to 1986 Employees application of 1984 was pending till 1986 Entitled to revised pension of Rs. 375/p.m. under clauses 7.1 and 10(a). Admittedly, the petitioner’s pension was fixed by Order dated 2.3.1984 at a time when the petitioner’s application for commutation dated 16.2.1984 was pending. It has been submitted on behalf of the petitioner, that the Central Government gave the opinion as it did by letter dated 31.3.198, because the respondents did not place before the Central Government, the correct facts, i.e. regarding the pendency of the application for commutation of pension filed by the petitioner dated 16.2.1984. In case the said fact was brought to the notice of the Central Government, then the opinion given vide letter dated 31.3.1998, might have been different. The case of the petitioner is solely based on the said application dated 16.2.1984, under which, he had applied for commutation of pension and which had remained unprocessed with the respondent No. 4 and before the Pension of the petitioner was commuted, the Office Memorandum dated 16.4.1987 had come into force and it, inter alia, provided that where the Government servants on permanent absorption in public sector undertakings/autonomous bodies continue to draw pension separately from the Government, their pension will be updated in terms of those Orders. In cases where the Government servants had drawn one time lump sum terminal benefits equal to 100% of their pensions, their cases will not be covered by those Orders. It is therefore, obvious that when the said O.M. was brought into force from 1.1.1986 the petitioner had not drawn one time lump sum terminal benefits equal to 100% of his pension and, therefore, the petitioner’s pension was required to be stepped up to Rs. 375/per month. It may again be noted that in terms of Rule 6(1)(ii) the commutation of pension becomes absolute on the date on which the medical authority signs medical report and that happened in the case of the petitioner only after 27.9.1990, and by which date, the petitioner was not paid the commuted value of his pension and, therefore, had to be paid commuted value of his pension in accordance with clause 7.1 read with clause 10(a) of the said O.M. dated 16.4.1987. The Central Government as well as the Deputy Director of Accounts (Pension) have not taken into consideration that the petitioner’s application for commutation was pending and he had not been paid lump sum terminal benefits as contemplated by the said O.M. After the O.M. came into force, the petitioner was entitled to commutation as per O.M. at consolidated rate of Rs. 375/and not at the basic rate of Rs. 175/as fixed by Order dated 2.3.1984.
CONSTITUTION OF INDIA, 1950 - Article 226 Central Civil Services (Commutation of Pension) Rules, 1981, Rules 6(1)(ii) and 8 Entitlement of Minimum Pension of Rs. 375 Clause 7.1 read clause 10(a) of Revision of Pension for pre-1986 pensioners Petitioner a Government servant in Animal Husbandry department Worked as junior stenographer Held entitled for retirement benefit from 1.2.1965 to 31.5.1981 Contention of respondent regarding all payments made Claim for commutation and terminal benefits at minimum pension of Rs. 375/Decision to be taken by Deputy Director of Pensions Free to make reference to Central Government Disposal of matter within six months from date of receipt of order Reference made by Deputy Director Receipt of reply by Central Government Petitioner applied for pensionary benefits even before order passed by Director of Animal Husbandry Application in prescribed form under Central Civil Services (Commutation of Pension) Rules, 1981 not acted upon by respondents Application submitted not in proper format Fresh application under Rule 37-A(1) of Central Civil Services Pension Rules Absence of denial in averment Commutation of pension absolute Medical report under Rule 6(1)(ii) submitted Petition deserves to succeed.
N. A. BRITTO, J.
( 1 ) THE short question for our consideration in this petition, is whether the petitioner is entitled to minimum pension of Rs. 375/-, as per Clause 7. 1 r/w. clause 10 (a) of the Revision of Pension for Pre 1986 pensioners, introduced vide Office memorandum (O. M.) No. 2/l/87-PIC-I dated 16-04-1987 and followed by the Respondents. The said clauses read as follows :-"minimum Pension/minimum Family Pension : 1. Where the consolidated pension/ family pension in terms of paragraph 6 works out to an amount less than Rs. 375 the same shall be stepped up to Rs. 375. This will be regarded as pension/family pension with effect from 01-01-1986. In the case of pensioners who are in receipt of more than one pension, the floor ceiling of Rs. 375 will apply to the total of all pensions taken together. ""10. The cases of Central Government employees who have been permanently absorbed in public sector undertakings/ autonomous bodies will be regulated as follows :- (a) Pension :- Where the Government servants on permanent absorption in public sector undertakings/autonomous bodies continue to draw pension separately from the Government, their pension will be updated in terms of these Orders. In cases where the Government servants have drawn one time lump sum terminal benefits equal to 100% of their pensions, their cases will not be covered by these Orders".
( 2 ) THERE is no dispute that the petitioner was in Government service in the department of Animal Husbandry and veterinary Services, as Junior Stenographer and went on deputation to Goa Meat Complex as Senior Stenographer on 08-06-1977 and thereafter was absorbed their vide O. M. dated 14-09-1983 from 01-06-1981, and, was held entitled for retirement benefits as Jr. Stenographer for his service from 01-02-1965 to 31-05-1981.
( 3 ) THE respondents contention is that the petitioner has already been paid all pension benefits as admissible under the Rules. The petitioner approached this Court with Writ petition No. 104/1992, which was disposed of by a Division Bench of this Court by Judgment dated 20-02-1982. The petitioner was given an opportunity to place his case in respect of his claim for commutation and terminal benefits at minimum pension of Rs. 375/- and also the application for withdrawal subsequently made by him, in that connection. The Deputy Director of Pensions (respondent no. 4), was required to hear the respective parties and take a decision and in case it was felt necessary by him, he was free to make a further reference, giving all the facts of this case, to the Central Government, and, in case it was not considered necessary, the Deputy director of Pensions was required to decide the issue on the basis of the submissions made on behalf of the parties, taking into consideration the Rules and Regulations applicable in that behalf and was further required to decide the issue by a speaking order within a period of four months, and in case the intervention of the Central government was found necessary, then he was required to dispose of within a period of six months from the date of the receipt of the order.
( 4 ) IT appears that the Deputy director (Pensions), made a reference to the central Government by his letter dated 20-03-1998, copy of which is otherwise not available on the record, and pursuant thereto, got a reply from the Central Government dated 31-03-1998. The said reply dated 31-03-1998 is at annexure R-1 colly to the affidavit in reply filed by respondent no. 4 dated 22-03-2001. The deputy Director (Pensions), thereafter by his order dated 18-06-1998. decided thus :-"the Central Government in their reply has made it clear that commutation is to be done with reference to original Pension and not consolidated Pension. It is further stated as per 10 (a) of Office Memorandum No. 2/1/87-PIC/i dated 16-04-1987 those who have opted to have lump sum terminal benefits their cases will not be covered by the order of IVth Pay Commission. Therefore ac
