Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(SC) 2

SUPREME COURT OF INDIA
ASHOK BHUSHAN, L. NAGESWARA RAO, JJ.
UNION OF INDIA AND OTHERS – Appellant
Versus
DR. O.P. NIJHAWAN AND OTHERS – Respondent
Civil Appeal No. 12040 of 2018 (Arising out of SLP (C) No. 24745 of 2015) with Civil Appeal No. 12112 of 2018 (arising out of SLP (C) No. 15594 of 2016); Civil Appeal Nos. 12125-12127 of 2018 (arising out of SLP (C) Nos. 7853-7855 of 2016); Civil Appeal Nos. 12143-12144 of 2018 (arising out of SLP (C) Nos. 4271-4272 of 2016); Civil Appeal No. 12113 of 2018 (arising out of SLP (C) No. 27273 of 2016); Civil Appeal No. 12139 of 2018 (arising out of SLP (C) No. 35861 of 2016); Civil Appeal No. 12114 of 2018 (arising out of SLP (C) No. 15416 of 2016); Civil Appeal No. 12115 of 2018 (arising out of SLP (C) No. 26723 of 2016); Civil Appeal No. 12116 of 2018 (arising out of SLP (C) No. 16725 of 2016); Civil Appeal No. 12117 of 2018 (arising out of SLP (C) No. 13531 of 2016); Civil Appeal No. 12142 of 2018 (arising out of SLP (C) No. 38068 of 2016); Civil Appeal No. 12042 of 2018 (arising out of SLP (C) No. 16856 of 2016); Civil Appeal No. 12099 of 2018 (arising out of SLP (C) No. 15927 of 2016); Civil Appeal Nos. 12137-12138 of 2018 (arising out of SLP (C) Nos. 22848-22849 of 2016); Civil Appeal No.12109 of 2018 (arising out of SLP (C) No. 308 of 2017); Civil Appeal No. 12101 of 2018 (arising out of SLP (C) No. 301 of 2017); Civil Appeal Nos. 12140-12141 of 2018 (arising out of SLP (C) Nos. 38066-38067 of 2016); Civil Appeal No. 12128 of 2018 (arising out of SLP (C) No. 17000 of 2016); Civil Appeal No.12098 of 2018 (arising out of SLP (C) No. 23922 of 2016); Civil Appeal Nos.12135-12136 of 2018 (arising out of SLP (C) Nos. 23104-23105 of 2016); Civil Appeal No. 12043 of 2018 (arising out of SLP (C) No. 27438 of 2016); Civil Appeal No.12104 of 2018 (arising out of SLP (C) No. 302 of 2017); Civil Appeal Nos.12133-12134 of 2018 (arising out of SLP (C) Nos. 23110-23111 of 2016); Civil Appeal No.12106 of 2018 (arising out of SLP (C)No. 305 of 2017); Civil Appeal Nos.12130-12132 of 2018 (arising out of SLP (C)CC Nos. 11456-11457 of 2016); Civil Appeal No.12111 of 2018 (arising out of SLP (C)No. 309 of 2017); Civil Appeal No.12044 of 2018 (arising out of SLP (C)No. 13640 of 2017); Civil Appeal No.12129 of 2018 (arising out of SLP (C)No. 23326 of 2016); Civil Appeal No. 12145 of 2018 (arising out of SLP (C)No. 34736 of 2016); Civil Appeal No. 12146 of 2018 (arising out of SLP (C)No. 28273 of 2016); Civil Appeal Nos.12147-12149 of 2018 (arising out of SLP (C)Nos. 32096-32098 of 2016); Civil Appeal No. 12100 of 2018 (arising out of SLP (C)No. 30128 of 2016); Civil Appeal No.12045 of 2018 (arising out of SLP (C)No. 36373 of 2016); Civil Appeal No. 12150 of 2018 (arising out of SLP (C)No. 34724 of 2016); Civil Appeal No.12102 of 2018 (arising out of SLP (C)No. 32349 of 2016); Civil Appeal No.12103 of 2018 (arising out of SLP (C)No. 32357 of 2016); Civil Appeal No.12105 of 2018 (arising out of SLP (C)No. 32350 of 2016); Civil Appeal No. 12107 of 2018 (arising out of SLP (C)No. 35332 of 2016); Civil Appeal No. 12108 of 2018 (arising out of SLP (C)No. 32340 of 2016); Civil Appeal No. 12110 of 2018 (arising out of SLP (C)No. 32347 of 2016); Civil Appeal No.12229 of 2018 (arising out of SLP (C)No. 14514 of 2017); Civil Appeal No. 12153 of 2018 (arising out of SLP (C)No. 9464 of 2017); Civil Appeal Nos. 12095-12096 of 2018 (arising out of SLP (C)Nos. 31554-31555 of 2018); Civil Appeal No.12047 of 2018 (@ out of SLP (C)No.33019 (D. No. 14576) of 2018); Civil Appeal No.12154-12157 of 2018 (@ out of SLP (C)NOS.33134-33137(D.No.14578) of 2018); Civil Appeal Nos. 12151-12152 of 2018 (arising out of SLP (C)Nos. 30035-30036 of 2017); Civil Appeal No. 12046 of 2018 (arising out of SLP (C)No. 25929 of 2017); Civil Appeal No. 12041 of 2018 (arising out of SLP (C)No. 10820 of 2018); Civil Appeal No. 12120 of 2018 (arising out of SLP (C)No. 10825 of 2018); Civil Appeal No. 12068 of 2018 (arising out of SLP (C)No. 16578 of 2018); Civil Appeal No. 12119 of 2018 (arising out of SLP (C)No. 24792 of 2018) AND Civil Appeal No. 12118 of 2018 (arising out of SLP (C)No. 6045 of 2017)
Decided on : 03-01-2019

Advocates Appeared:
For the Appellant : Mr. Avinash Sharma, AOR Mrs. Pinky Anand, ASG Mr. R. Balasubramanian, Adv. Mr. Santosh Kumar, Adv. Mr. T.M. Singh, Adv. Mr. Mukul Singh, Adv. Mr. M. Sagar, Adv. Mr. santosh Kumar, adv. Mr. Mukesh Kumar Maroria, AOR Mr. Sanjai Kumar Pathak, Adv. Ms. Akabha Kaul, Adv. Mr. Gurmeet Singh Makker, AOR Mr.Merusagar Samantray, Adv. Mr. P.V. Yogeswaran, Adv. Mr. Mukul Singh, Adv. Mr. Leelesh Krishna, Adv. Mr. Gurmeet Singh Makker, AOR Mr. B. V. Balaram Das, AOR Mr. S.N.Terdol, Adv. Mr. Arvind Kumar Sharma, AOR,
for the Respondent: Mr. Nidhesh Gupta, Sr.Adv. Mr.S.K. Malik, Adv. Mr. Praveen Chaturvedi, AOR Ms. Pallvi Singh, Adv. Ms. Vriti Gujral, Adv. Mr. Jyoti Chaturvedi, Adv. Mr. Addya Mishra, Adv. Caveator-in-person Mr. Ananga Bhattacharyya, AOR Mr. Vaibhav Vutts, Adv. Ms. Aamna Hasan, Adv. Mr. Shreyes rastogi, Adv. Mr. Ashwin Kumar D.S., Adv. Ms. Surbhi Mehta, AOR Mr. Satish Kumar, AOR.

IMPORTANT POINTS
When the orders of High Court or Supreme Court leave question of law open while dismissing the matter, such questions can be raised subsequently. Estoppel or res judicata does not apply.
Additional pay, though styled as ‘special pay’ granted on account of peer review and to redeem pay structure anomaly, is not ‘special pay’ within the meaning of Rule 9(25). Cannot be excluded from pay for computing pension.

Headnote:(a) Administration of justice – High Court dismissing writ petitions leaving question of law open – Supreme Court also dismissing SLP in limine but leaving question of law open – Held, appellants not precluded from raising the question of law in instant appeals – Estoppel or res judicata does not apply. (Para 22, 25)
       (2006) 11 SCC 709 – Relied upon
       (b) Fundamental Rules – Rule 9(25) – Special pay – Means a pay granted in consideration of (a) the special arduous nature of the duties; or (b) a specific addition to the work or responsibility – Memorandum dated 03.02.1999 granting special pay not indicating that it has been granted due to specially arduous nature of the duties; or specific nature/ work – Granted on account of peer review and to redeem pay structure anomaly – Not special pay within the meaning of Rule 9(25). (Para 27, 28)
       (c) Fundamental Rules – Rule 9(25) and Rule 9(21)(a)(i) – Special pay – Rule 9(21)(a)(i) excluding special pay as defined in Rule 9(25) from definition of ‘pay’ – Instantly the special pay granted to respondents not a special pay within the meaning of Rule 9(25) – Addition in pay granted by office memorandum dated 03.02.1999 does not fit in the special pay, which is excluded from the definition of pay given under Rule 9(21)(a)(i) – The additional pay styled as special pay has to be included in the definition of pay given under Rule 9(21) (a) (i) and treated as ‘pay’ for computation of pension. (Para 29)
       Facts of the case:
       Original applications were filed by the respondents herein claiming direction to the Union of India and others for reckoning the special pay for pension and pensionary purpose. The respondents had been working in the Department of Defence Research and Development Organisation, Department of Atomic Energy and Department of Space. The issues raised before the Central Administrative Tribunals by the respondents/ Scientists working in the above mentioned three departments and the reliefs claimed therein were similar in nature and Principal Bench of Central Administrative Tribunal and other benches had allowed the claim for treating the above special pay for pensionary benefits. The High Courts have also dismissed the writ petitions where the orders of Central Administrative Tribunals were challenged.
       Finding of the Court:
       There is no infirmity in the impugned judgments.
       Result: Appeals dismissed.

JUDGMENT

Ashok Bhushan, J.

This bunch of appeals raising common questions of law and facts have been heard together and are being decided by this common judgment. All the appeals have been filed by the Union of India through Ministry of Defence and others questioning the judgment of High Court and judgments of Central Administrative Tribunal, Principal Bench, Delhi and different other benches of Central Administrative Tribunals. The Central Administrative Tribunal, Principal Bench as well as different other benches of Central Administrative Tribunals have allowed the original applications filed by respondents herein, who have been working as Scientists in Department of Defence Research and Development Organisation, Department of Atomic Energy and Department of Space, all under Ministry of Defence. The Union of India has sanctioned special pay of Rs. 2,000/- w.e.f. 01.01.1996 and Rs. 4,000/- w.e.f. 01.01.2006 to the Scientists working in the above mentioned three departments.

2. Original applications were filed by the respondents herein claiming direction to the Union of India and others for reckoning the special pay for pension and pensionary purpose. The respondents in this batch of appeals had been working in the Department of Defence Research and Development Organisation, Department of Atomic Energy and Department of Space. The issues raised before the Central Administrative Tribunals by the respondents/ Scientists working in the above mentioned three departments and the reliefs claimed therein were similar in nature and Principal Bench of Central Administrative Tribunal and other benches had allowed the claim for treating the above special pay for pensionary benefits. The High Courts have also dismissed the writ petitions where the orders of Central Administrative Tribunals were challenged. Union of India being aggrieved by the said judgments have come up in these appeals.

3. Issues raised by Scientists of above mentioned three departments being the same, it shall be sufficient to notice the pleadings in Civil Appeal No. 12040 of 2018 - Union of India & ORs. Vs. Dr. O.P. Nijhawan & ORs. for deciding this bunch of appeals, which is being treated as leading appeal.

4 . We now proceed to notice the facts in Civil Appeal No. 12040 of 2018 - Union of India & ORs. Vs. Dr. O.P. Nijhawan & ORs.

5. The respondents Dr. O.P. Nijhawan and others were serving as Scientists 'G' in the Defence Research & Development Organisation (hereinafter referred to as "DRDO"), Ministry of Defence from where they retired from service. Scientist 'G' of DRDO were working in the scale of Rs. 5900-7300 along with Scientist/Engineers-H working in the Department of Atomic Energy (hereinafter referred to as "DAE") as also Department of Space (hereinafter referred to as "DOS"). The Fifth Central Pay Commission recommended a common revised pay scale of Rs. 18400-22400 for the pay scales of Rs. 5900-7300 and Rs. 5900-6700 . The scale given to Scientific Officer H and Scientists 'G' were merged in common scale by Fifth Central Pay Commission Scales and under Sixth Central Pay Commission scale of Rs. 18400-22400 was revised as Rs. 37400-67000. The Scientists of the aforementioned three Scientific Departments, i.e. DRDO, DOS and DAE made a case for suitably compensating the Scientists/Engineers in the pay scale of Rs. 5900-7300 (pre-revised) . Consequent to Peer Review, the Government of India, Ministry of Defence decided to sanction special pay of Rs. 2,000/-per month to the Scientists in the pay-scale of Rs. 18,400-22400 in lieu of a separate higher pay scale. An Order dated 03.02.1999 was issued by all the three above Departments. The Order dated 03.02.1999 sanctioned the above pay scales from 01.01.1996.

6. An order dated 14.05.1999 was issued by Ministry of Defence, DRDO intimating that a proposal to pay special pay as part of pay as defined under Fundamental Rule 9(21) for all purposes is being taken up separately with Ministry of Defence, further instructions in

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2019 Supreme(SC) 2

Cases Referred (1)