IMPORTANT POINT
The court established that pension fixation must comply with the relevant Office Memorandums and rules, affirming that pension is a right and must be calculated based on the correct interpretation of applicable provisions.

JUDGMENT/ORDER

M.S.SONAK, J. - Heard Ms A. Agni, learned Senior Advocate with Ms Jay Sawaikar, learned counsel for the Petitioners and Mr D. Pangam, learned Advocate General with Ms Sulekha Kamat, learned Additional Government Advocate for the Respondents.

2. Rule. The rule is made returnable immediately at the request and with the consent of the learned counsel for the parties.

3. The Petitioners, who superannuated from service on 31/10/1994 as Joint Secretary, Government of Goa and the Chief Electrical Engineer, Government of Goa, seek the following substantive relief by instituting the present petition.

"(A) For a writ of mandamus, writ in the nature of mandamus, any other writ direction or order directing the respondents to fix the revised pension of the petitioners as provided in OM dtd. 12/5/2017 No.38/37/2016-P&PW(A) and revise pension payable to the petitioner no.1 at Rs.48300.00 and family pension Rs.28980.00 and the monthly pension payable to the Petitioner no.2 at Rs.72900.00 and family pension Rs.43740.00 and for payment of the arrears of revised pension from 1/1/2016."

4. Ms Agni learned Senior Advocate for the Petitioners, submits that in terms of the Office Memorandum dtd. 12/5/2017, the notional pay fixation under each intervening pay commission based on the Formula prescribed would have to be carried out. In particular, she submitted that 50% of the notional Pay as of 1/1/2016 would have to be determined as the revised pension in terms of clause 4 of the Office Memorandum dtd. 12/5/2017. She submits that the Respondents have failed to comply with the mandate of clause 4 of the Office Memorandum dtd. 12/5/2017. Consequently, the Petitioners are deprived of the full pension they are entitled to under the law. She submits that the pension is not a bounty but a right guaranteed by the Pension Rules and Article 21 of the Constitution of India. Therefore, she presents that denial of the portion of pension legitimately due to the Petitioners amounts to a violation of Articles 14, 21, and 300A of the Constitution.

5. Ms Agni submits that Para 4 of the Office Memorandum dtd. 12/5/2017 binds the Respondents and not the illustration tables or other executive instructions issued in aid of the Office Memorandum dtd. 12/5/2017. She submits that in case of any conflict between the illustration tables or similar administrative instructions, what prevails is the Office Memorandum dtd. 12/5/2017. By giving undue precedence to the illustration table or other executive instructions, she presents that the Respondents are depriving the Petitioners of the full pension that is due and payable to them. Ms Agni relied on State Bank of India and others Vs K. P. Subbaiah and others, (2003) 11 SCC 646. and State of Maharashtra Vs Jagannath Achyut Karandikar, AIR 1989 SC 1133. to support her contentions.

6. Ms Agni submits that based upon the proper calculations and after due compliance with clause 4 of the Office Memorandum dtd. 12/5/2017, Petitioner No.1 is entitled to a pension of 48, 300/- and ? a family pension of 28, 980/-. Similarly, Petitioner No.2 is entitled to ? a pension of 72, 900/- and a family pension of 43, 740/-. ? ? Accordingly, she submits that the Respondents must pay the arrears on this basis from 1/1/2016.

7. The learned Advocate General submitted that there was no error in determining the pension payable to the Petitioners. He offered that before the pension can be determined, placing the Petitioners in the appropriate pay scales consequent upon accepting pay commission recommendations is necessary. He submitted that such pay fixation has to be undertaken in terms of the State Government's order dtd. 27/10/1997. He offers that the Petitioners' pay fixation in the 5th Pay Commission scale was indeed made after due compliance with the order dtd. 27/10/1997 and the illustration statements appended to the same. Based upon such pay fixation, the pension payable to the Petitioners was determined after giving due credence to claus