Supreme Court of India
UNION OF INDIA & ORS.versusDR. O. P. NIJHAWAN & ORS.
- Citation
- 2019 INSC 4
- Decided
- 3 January 2019
- Disposal
- Dismissed
- Bench
- ASHOK BHUSHAN
Holding
The special pay of Rs 2,000/4,000 must be treated as part of pay for pension computation, and the Union of India is not barred by res judicata or estoppel from raising the issue; the appeals are dismissed.
Summary
The case concerned scientists employed in DRDO, DAE and DOS who were granted a special pay of Rs 2,000 (effective from 1 Jan 1996) and Rs 4,000 (effective from 1 Jan 2006). The Union of India challenged the inclusion of this special pay in the definition of "pay" for computing pension under Fundamental Rule 9(21)(a)(i) and Rule 33 of the Central Civil Services Pension Rules, 1972, arguing that earlier Tribunal and High Court orders were final and that the matter was barred by res judicata or estoppel. The Supreme Court examined the nature of the special pay, held that it was granted to remedy a pay‑scale anomaly and not because of arduous duties or specific responsibilities as contemplated by Rule 9(25); consequently it does not fall within the exclusion in Rule 9(21)(a)(i) and must be counted as part of pay for pensionary benefits. The Court also observed that earlier SLP dismissals left the legal question open, so the Union was not precluded from raising the issue. The appeals were dismissed.
Issues considered
- Whether the Union of India is precluded by res judicata or estoppel from questioning the inclusion of the special pay in pension computation after earlier Tribunal and High Court orders.
- Whether the orders issued by the Union of India implementing the Tribunal and High Court decisions preclude it from raising the issue again.
- Whether the special pay of Rs 2,000/4,000 sanctioned to scientists in DRDO, DAE and DOS is to be included in the definition of "pay" under Rule 9(21)(a)(i) for the purpose of pension computation under the 1972 Rules.
Legislation cited
- Central Civil Services (Pension) Rules, 1972s. Rule 33
- Fundamental Ruless. Rule 9(21)(a)(i), s. Rule 9(25)
Subjects
pensionspecial paydefinition of payFundamental RulesCentral Civil Services Pension Rulesres judicataestoppelservice lawDRDODAEDOSscientists
Judgment
[2019] 1 S.C.R. 281 281
UNION OF INDIA & ORS. A
v.
DR. O. P. NIJHAWAN & ORS.
(Civil Appeal No. 12040 of 2018)
JANUARY 03, 2019 B
[ASHOK BHUSHAN AND L. NAGESWARA RAO, JJ.]
Service Law – Pension – Computation of – Special pay of Rs.
2,000/- and Rs. 4000/- given to scientists working in the Department
of Defence Research and Development Organisation (DRDO),
C
Department of Atomic Energy (DAE) and Department of Space
(DOS) under Ministry of Defence – Inclusion of the special pay for
computation of pension – Permissibility of – Held: Special pay of
Rs.2,000/- or Rs.4,000/- sanctioned to the Scientists in Departments
of DRDO, DAE and DOS w.e.f. 01.01.1996/01.01.2006 respectively
has to be included in the definition of pay as contained in r. D
9(21)(a)(i) for the purposes of computation of pensionary benefit
under 1972 Rules – Grant of special pay of Rs.2,000/- was in lieu
of a separate higher pay scale, which does not fit in the nature of
special pay as contemplated by r. 9(25) – Addition of benefit of
Rs.2,000/- w.e.f. 01.01.1996 styled as special pay has to be included
E
in the definition of pay given u/r. 9(21)(a)(i) looking to the true
nature and character of the benefit, which was extended to Scientists
on the basis of peer review – Tribunals or High Courts rightly held
that the amount of special pay of Rs.2,000/- w.e.f. 01.01.1996 and
Rs.4,000/- w.e.f. 01.01.2006 to be treated as part of pay for the
basis of computation of pension – SLPs on the same issue having F
been dismissed in limine, the appellants are not precluded from
raising the issues on question of law, which was earlier left open by
this Court – Furthermore, the appellant has implemented the earlier
orders passed by the Tribunals and the High Courts and issued
order for including special pay in the pay for the purpose of
G
computation of pension, the appellant is not precluded to raise the
issues again, the principle of res judicata/estoppel not attracted –
Fundamental Rules – rr. 9(21)(a)(i) and 9(25) – Central Civil
Services Pension Rules, 1972 – r. 33.
H
281
282 SUPREME COURT REPORTS [2019] 1 S.C.R.
A Dismissing the appeals, the Court
HELD: 1.1 Under Fourth Central Pay Commission,
Scientists ‘G’ were receiving pay scale of Rs.5900-6700 and
Scientists ‘H’ were getting pay scale of Rs. 5900-7300. On
implementation of Fifth Central Pay Commission, both the above
B pay scales were merged into a single pay scale of Rs.18400-22400
and were designated as Scientific Officer ‘H’. On peer review,
recommendation was made to sanction of special pay of Rs.2,000/
- w.e.f. 01.01.1996. An order dated 03.02.1999 was issued in this
regard. There were certain clarifications issued by different office
memorandum for example, office memorandum dated 12.08.1999
C issued by Government of India, Department of Space that special
pay will not be treated as part of pay for the purposes like, DA,
HRA etc., which led filing of original applications in the Tribunal
questioning the clarificatory order issued by the Government of
India and Tribunal had allowed the claim of Scientists to reckon
D the special pay for the purpose of pension. The Government of
India, Ministry of Defence, DRDO has specifically issued an order
dated 13.05.2009, where the Government decided to count the
said special pay for pension and pensionary benefits. [Paras 19,
20][293-C-D; 294-C-D]
E 1.2 The original applications filed by Scientists similarly
situated was allowed by Central Administrative Tribunal against
which few of the writ petitions were also dismissed by the High
Court and against the judgment of the High Court or the Central
Administrative Tribunals, matter was carried by Union of India
in this Court where SLPs were dismissed. However, the question
F of law was left open.” There were few other SLPs filed by the
Union of India, which were dismissed in limine. SLPs having been
dismissed in limine, the appellants are not precluded from raising
the issues, which have been sought to be raised in these appeals
in this Court. This was also the consequences of the question of
G law being left open by this Court. Thus, this Court is not persuaded
to accept the submission that Union of India is precluded from
raising the issues on question of law, which was earlier left open
by this Court. Thus, the question of law as raised by the appellants
are to be decided. [Para 22][295-F-H; 296-A-B]
H 1.3 The order dated 13.05.2009 of Government of India,
UNION OF INDIA v. DR. O. P. NIJHAWAN 283
had directed for counting of special pay for pensionary purposes. A
In the year 1999 itself, a clarificatory order was issued by the
Union of India that special pay shall not be treated as a part of
pay for the purposes of pension. The said stand, was taken by the
Government relying on the definition of pay as given under
Fundamental Rule 9(21)(a)(i), thereafter came various orders of
B
the Tribunals where direction was issued to compute by adding
the special pay in the pay for computation of pension. The fact
that appellant has implemented the earlier orders passed by the
Tribunals and the High Courts and issued order for including
special pay in the pay for the purpose of computation of pension,
the Union of India is not precluded to raise the issues again, the C
principle of res judicata or estoppel are not attracted. [Para 22,
25][296-C-D; 298-F]
1.4 As per Fundamental Rule 9(25), the Special pay means
“an addition, of the nature of pay, to the emoluments of a post or
of a Government servant”. A special pay is one granted in D
consideration of the special arduous nature of the duties; or a
specific addition to the work or responsibility. In the memorandum
dated 03.02.1999, there is categorical statement that the special
pay of Rs.2,000/- per month is sanctioned to scientists only in
the pay scale of Rs.18,400-22,400, in lieu of a separate higher
pay scale, after peer review. The order does not indicate that it E
has been granted to the Scientists due to specially arduous nature
of the duties; or specific nature/ work of the respondents. The
genesis for amount of Rs.2,000/- as special pay was on account of
the grievances raised by the Scientists when two pay scales under
Fourth Central Pay Commission were merged into one pay scale F
by Fifth Central pay Commission, i.e. Rs.18400-22400. Scientists,
who were in the pay-scale of Rs.6700-7300 had raised grievances
and it was on account of peer review that Government sanctioned
the special pay in lieu of a separate higher pay scale. The
memorandum dated 13.02.1999 was obtained by preparing and
submitting a Combined Cabinet Paper to Cabinet Secretariat by G
all the three mentioned departments to remove anomaly that
belonged to all scientists, who were in the (pre-revised) scale of
Rs.5900-7300 prior to Fifth Central Pay Commission and were
entitled to higher pay scale but were intermittently merged with
H
284 SUPREME COURT REPORTS [2019] 1 S.C.R.
A a lower pay scale at the time of Fifth Central Pay Commission. If
the genesis of sanction dated 13.02.1999 is taken to its true
import, it is clear that the said sanction or extension of benefit
does not fit in the definition of special pay as contained in
Fundamental Rule 9(25), rather it was to redeem the pay structure
anomaly. Subsequent interpretation and decision taken by the
B
Union of India for not giving the benefit of amount of special pay
of Rs.2,000/- in definition of pay was by picking up the word
“special pay” as occurring in office memorandum dated
03.02.1999. [Paras 27, 28][299-A-B, C-G]
1.5 The definition of Fundamental Rule 9(21)(a)(i) clearly
C excludes the special pay or pay granted in view of his personal
qualifications from the definition of pay. The special pay as
occurring in Fundamental Rule 9(21)(a)(i) has to take colour from
the definition of special pay as contained in Rule 9(25). The special
pay as defined in Rule 9(25) is sanctioned to a Government
D servant or to a post looking to the special arduous nature of the
duties or a specific addition to the work or responsibility, which
is related to essentially performance of duties and specific addition
to the work. The second exclusion, i.e., it is granted in view of
professional qualifications also indicate that the special pay is
only taking into consideration the personal qualifications of a
E person. Thus, special pay is in recognition of the said factors and
for compensating in the above circumstances. Special pay is
granted for specific purposes and in response to specific situation
and circumstances. Thus, there is a rational for excluding special
pay from the pay as defined in Rule 9(21)(a)(i) but the special pay
F granted by office memorandum dated 03.02.1999 to the
respondents was not in any of the circumstances as mentioned in
Rule 9(25). Rather the said benefit of Rs.2,000/- was in lieu of a
separate higher pay scale. It is, thus, clear that grant of special
pay of Rs.2,000/- was in lieu of a separate higher pay scale, which
does not fit in the nature of special pay as contemplated by Rule
G 9(25). Thus, the addition as granted by office memorandum dated
03.02.1999 also does not fit in the special pay, which is excluded
from the definition of pay given under Rule 9(21)(a)(i). Thus,
addition of benefit of Rs.2,000/- w.e.f. 01.01.1996 styled as special
pay has to be included in the definition of pay given under Rule
H
UNION OF INDIA v. DR. O. P. NIJHAWAN 285
9(21)(a)(i) looking to the true nature and character of the benefit, A
which was extended to Scientists on the basis of peer review.
Thus, there is no infirmity in the decisions of the Central
Administrative Tribunals or High Courts holding that the amount
of special pay of Rs.2,000/- w.e.f. 01.01.1996 and Rs.4,000/- w.e.f.
01.01.2006 to be treated as part of pay for the basis of computation
B
of pension. [Para 29][299-G-H; 300-A-F]
Col. B.J. Akkara (Retd.) v. Government of India and
Others (2006) 11 SCC 709 : [2006] 7 Suppl. SCR 58 –
referred to.
Case Law Reference C
[2006] 7 Suppl. SCR 58 referred to Para 11
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 12040
of 2018.
From the Judgment and Order dated 18.07.2014 of the Delhi D
High Court at New Delhi in Writ Petition No. 3095 of 2014.
WITH
Civil Appeal Nos. 12112, 12125-12127, 12143-12144, 12113, 12139,
12114, 12115, 12116, 12117, 12142, 12042, 12099, 12137-12138, 12109,
12101, 12140-12141, 12128, 12098, 12135-12136, 12043, 12104, 12133- E
12134, 12106, 12130-12132, 12111, 12044, 12129, 12145, 12146, 12147-
12149, 12100, 12045, 12150, 12102, 12103, 12105, 12107, 12108, 12110,
12229, 12153, 12095-12096, 12047, 12154-12157, 12151-12152, 12046,
12041, 12120, 12068, 12119 and 12118 of 2018.
Mrs. Pinky Anand, ASG, Nidhesh Gupta, Sr. Adv., Avinash Sharma, F
R. Balasubramanian, Santosh Kumar, T. M. Singh, Mukul Singh,
M. Sagar, Santosh Kumar, Mukesh Kumar Maroria, Sanjai Kumar
Pathak, Ms. Akabha Kaul, Gurmeet Singh Makker, Merusagar
Samantray, P. V. Yogeswaran, Leelesh Krishna, B. V. Balaram Das,
S. N. Terdol, Arvind Kumar Sharma, S. K. Malik, Praveen Chaturvedi,
Ms. Pallvi Singh, Ms. Vriti Gujral, Jyoti Chaturvedi, Addya Mishra, G
Mr. Ananga Bhattacharyya, Vaibhav Vutts, Ms. Aamna Hasan, Shreyes
rastogi, Ashwin Kumar D. S., Ms. Surbhi Mehta, Satish Kumar, Advs.
for the appearing parties.
Caveator-in-person
H
286 SUPREME COURT REPORTS [2019] 1 S.C.R.
A The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. 1. 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
B 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
C 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.
D
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
E 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
F
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
G 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.
H
UNION OF INDIA v. DR. O. P. NIJHAWAN 287
[ASHOK BHUSHAN, J.]
5. The respondentsDr. O.P. Nijhawan and others were serving as A
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
B
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 C
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.
D
2,000/- per month to the Scientists in the pay-scale of Rs. 18,400-22400in
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 E
defined under Fundamental Rule 9(21) for all purposes is being taken up
separately with Ministry of Defence, further instructions in this regard
will be issued after obtaining the approval of the Ministry. Government
of India, DOS issued an order dated 12.08.1999, where it was mentioned
that special pay will not be treated as part of pay for the purposes like F
DA, HRA, pension etc. The Original Application No. 1135 of 2002 was
filed by Scientists working in the Department of Space questioning the
clarificatory order issued by O.M. dated 12.08.1999 regarding non-
inclusion of special pay as part of the pension. The Principal Bench of
Central Administrative Tribunal, Delhi allowed the OA by order dated
14.05.2003 holding that special pay of Rs.2,000/- per month w.e.f. G
01.01.1996 shall be treated as part of pay for the purposes of pensionary
benefit. The Department of Space has also issued a consequential order
dated 11.07.2003 modifying its earlier order dated 12.08.1999 to the effect
that special pay will not be treated as part of pay for the purposes of
H
288 SUPREME COURT REPORTS [2019] 1 S.C.R.
A D.A. but the same may be treated as part of pay for the pensionary
benefits w.e.f. 01.01.1996. On 13.07.2004, DAE relying on the order of
the Central Administrative Tribunal under O.A. No. 1153 of 2002 extended
the benefit of special pay of Rs.2,000/- for pensionary benefit. The
Scientists working in the DRDO had also filed O.A. No. 184 of 2006
praying that special pay of Rs.2,000/- be treated for the purposes of
B
pension, which O.A. was allowed by order dated 29.03.2007 holding
that special pay shall also be treated for pensionary benefit. The Union
of India filed a Writ Petition No. 267 of 2008 against the judgment of
Central Administrative Tribunal, Hyderabad dated 29.03.2007, which writ
petition was dismissed by the High Court of Andhra Pradesh by its
C judgment dated 25.09.2008. A SLP (C) No. 4842 of 2009 was filed
against the judgment of High Court of Andhra Pradesh at Hyderabad,
which was dismissed by this Court on 29.04.2009 by following order:-
“ Heard.
Delay condoned.
D
On the facts of the present case, we are not inclined to interfere
with the impugned judgment and order. The special leave petition
is dismissed. However, the question of law is left open.”
7. The Ministry of Defence, DRDO issued an order dated
E 13.05.2009, which provided that special pay of Rs.2,000/- per month
granted to Scientist in the pay scale of Rs.18400-22400 w.e.f. 01.01.1996
and special pay of Rs.4,000/- per month to Scientist in pay band-4
(Rs.37400-67000) with Grade Pay of Rs.10,000/- per month w.e.f.
01.01.2006 is to be counted for pension and pensionary benefits. It is to
be noted that special pay of Rs.2,000/- was increased as Rs.4,000/-
F w.e.f. 01.01.2006. The respondent Dr. O.P. Nijhawan and others filed
an O.A. No. 1750 of 2012 before Central Administrative Tribunal,
Principal Bench, New Delhi complaining that although by order dated
13.05.2009 sanction of the President to count special pay of Rs.2,000/-
per month granted to Scientists in the pay scale of Rs.18400-22400 w.e.f.
G 01.01.1996 and special pay of Rs.4,000/- per month to Scientist in pay
band-4 (Rs.37400-67000) with Grade Pay of Rs.10,000/- per month w.e.f.
01.01.2006 for pension and pensionary benefits, the said order has not
been implemented. It was further pleaded that several Scientists who
have filed cases before Hyderabad Bench, Bangalore Bench and Principal
Bench, New Delhi, where orders were issued, consequently with regard
H
UNION OF INDIA v. DR. O. P. NIJHAWAN 289
[ASHOK BHUSHAN, J.]
to certain Scientists of that grade, the order was implemented but still A
with regard to the applicants, the benefit has not been extended. It was
pleaded that grant of similar benefit to some colleagues of applicants
and not extending the said benefit to them is arbitrary and discriminatory.
The respondents herein prayed for direction to the respondents in O.A.
to revise the pension and pensionary benefits of the Scientists ’G’ of
B
DRDO in terms of their own order dated 13.05.2009. It was also prayed
that respondents be directed to pay arrears of pension and pensionary
benefits to the applicants taking into account Rs.2,000/- or Rs.4,000/- as
special pay and also interest, if revision of pension and pensionary benefits
taken unduly long period. The Central Administrative Tribunal, Principal
Bench, New Delhi allowed the O.A. No. 1750 of 2012 vide its judgment C
dated 22.01.2013 and issued following directions:-
“(1) The claim of the applicants are allowed for reckoning the
special pay of Rs.2,000/- admissible from 01.01.1996 and Rs.4,000/
- admissible from 01.01.2006 in the respective grade pays as
enumerated in the OM dated 13.05.2009 for pension and D
pensionary purposes.
(2) It is further directed that those who fall within the eligible
categories as cited above are to be allowed this benefit without
their being required to approach this Tribunal.
(3) This, of course, is a measure of exception and leaves the E
question of law undetermined.”
8. Against the judgment and order of the Tribunal dated 22.01.2013,
Union of India filed a Writ Petition No. 3095 of 2014 in the Delhi High
Court, which writ petition has also been dismissed by the Division Bench
vide its judgment dated 18.07.2014. Civil Appeal No. 12040 of 2018 – F
Union of India & Ors. Vs. Dr. O.P. Nijhawan & Ors. has been filed
against the judgment of Delhi High Court dated 18.07.2014.
9. As noted above, most of other appeals in this bunch has been
filed against the judgment of the Central Administrative Tribunal, Principal
Bench, New Delhi and other Benches, wherein, the Central G
Administrative Tribunal has granted same relief to the Scientists working
in the Departments of DRDO, DAE and DOS.
10. We have heard Ms. Pinky Anand, learned Additional Solicitor
General for India and Colonel Mr. Balasubramanian for the appellants.
H
290 SUPREME COURT REPORTS [2019] 1 S.C.R.
A Shri Nidhesh Gupta, learned senior counsel as well as several other
learned advocates appearing for respondents in different appeals have
also been heard.
11. Learned counsel for the appellants submits that judgments
and orders passed by the Central Administrative Tribunals and the High
B Court are in teeth of Rule 9(21)(a)(i) of the Fundamental Rules and
Rule 33 of the Central Civil Services Pension Rules, 1972 (hereinafter
referred to as “1972 Rules). The definition of pay as contained in
Fundamental Rule 9(21)(a)(i) clearly excludes “special pay” from the
definition of pay, hence the “special pay” of Rs.2,000/- w.e.f. 01.01.1996
and Rs.4,000/- w.e.f. 01.01.2006 cannot be included in pay, hence has to
C be excluded from the definition of emoluments as defined in Rule 33 of
1972 Rules. The judgment of Central Administrative Tribunals as well
as the High Court holding that special pay is to be included for computation
of pension cannot alter the legal position, the language of a Statute, i.e.
Rule 9(21)(a)(i), which is clear and unambiguous. Further the fact that
D against the earlier order passed by Central Administrative Tribunals and
the High Court, writ petitions and SLPs filed by Union of India were
dismissed, shall not alter the legal position. The Special Leave Petitions
were dismissed in limine and this Court in one of the Special Leave
Petitions has expressly left the question of law open. Further the fact
that in number of other similarly situated Scientists, the order passed by
E the Central Administrative Tribunals/High Courts have attained finality
and have also been implemented by the Union of India, cannot preclude
this Court from deciding the question of law left open. Reliance was
placed on the judgment of this Court in Col. B.J. Akkara (Retd.) Vs.
Government of India and Others, (2006) 11 SCC 709. It is submitted
F that there is huge financial implication on the Union of India due to the
orders passed by the Central Administrative Tribunals and High Courts.
It is lastly submitted that Seventh Central Pay Commission has
discontinued the special pay to the Scientists, which Resolution has been
notified by Notification dated 01.07.2017.
G 12. Learned counsel for the respondents refuting the submission
of appellants contends that the special pay of Rs.2,000/- w.e.f. 01.01.1996
was granted in lieu of a separate high pay scale, which is clear from the
order dated 03.02.1999 sanctioning the special pay, hence, it was not in
the nature of special pay as defined in Fundamental Rule 9(25), thus,
was not eligible for exclusion from the definition of pay as contained in
H
UNION OF INDIA v. DR. O. P. NIJHAWAN 291
[ASHOK BHUSHAN, J.]
Rule 9(21)(a)(i). Only special pay, which is covered within the definition A
of Fundamental Rule 9(25) deserves to be excluded from the definition
of pay. Thus, the special pay of Rs.2,000/- granted to the respondents in
lieu of a separate higher pay scale is eligible for computation of pensionary
benefits and the Central Administrative Tribunals and the High Courts
have not committed any error in allowing the claim of the respondents.
B
Further, the relief to the respondents have been granted since similarly
situated respondents have already been granted the benefit by the Union
of India itself. Non-inclusion of special pay of Rs.2,000/- or Rs.4,000/
- for computation of pension shall be depriving the respondents of the
right of pension, which they have earned by rendering valuable services
to Union. C
13. We have considered the submissions of the learned counsel
for the parties and have perused the records.
14. From the pleadings on the record and the submissions made
by the learned counsel for the parties, following issues arise for
consideration in this batch of appeals:- D
(i) Whether the appellants are precluded to question the impugned
judgment of Central Administrative Tribunals/High Courts
directing for inclusion of special pay of Rs.2,000/- or Rs. 4,000/
- for computation of pension, since at earlier stages, similar
orders passed by Central Administrative Tribunals/High Courts E
have attained finality due to dismissal of Special Leave Petitions
filed by the Union of India?
(ii) Whether the Orders issued by the Union of India implementing
the orders by giving effect to the decisions of the Central
Administrative Tribunals and High Court directing for inclusion F
of special pay of Rs.2,000/- or Rs.4,000/- in computation of
pension, the Union of India is precluded/estopped from
questioning the earlier decisions?
(iii) Whether special pay of Rs.2,000/- or Rs.4,000/- sanctioned
to the Scientists in Departments of DRDO, DAE and DOS G
w.e.f. 01.01.1996/01.01.2006 respectively has to be included
in the definition of pay as contained in Rule 9(21)(a)(i) for the
purposes of computation of pensionary benefit under 1972
Rules?
H
292 SUPREME COURT REPORTS [2019] 1 S.C.R.
A 15. Before we enter into the respective submissions of the learned
counsel for the parties on the above issues, it is necessary to look into
the statutory provisions pertaining to computation of pension and some
of the orders issued by the Union of India.
16. Rule 9(21)(a)(i) of the Fundamental Rules defines “Pay”, which
B is as follows:-
(21) (a) “Pay” means the amount drawn monthly byGovernment
servant as-
(i) the pay, other than special pay or pay granted in viewof his
personal qualifications, which has beensanctioned for a post
C held by him substantively or inan officiating capacity or to which
he is entitled byreason of his position in a cadre, and
(ii) overseas pay, special pay and personal pay, and
(iii) any other emoluments which may be specially classedas pay
D by the President.
17. The special pay has been defined in Fundamental Rule 9(25),
which is to the following effect:-
(25)”Special Pay” means an addition, of the nature of pay, tothe
emoluments of a post or of a Government servant, granted
E inconsideration of-
(a) the specially arduous nature of the duties;
or
(b) a specific addition to the work or responsibility.
F
For orders regarding grant of Special Pay to various categories of
Government servants and treatment thereof for the purpose of
fixation of pay on promotion, see Appendix-8 in this Compilation.
For orders regarding grant of Special Pay in the name of Deputation
(Duty) Allowance on the transfer of Central Government servants
G
to other Government Departments, Companies, Corporations, etc.,
see Appendix-5 in this Compilation.
18. The payment of pension to the Central Government employees
is regulated by Central Civil Services Pension Rules, 1972. Rule 33 of
the 1972 Rules defines emoluments, which is to the following effect:-
H
UNION OF INDIA v. DR. O. P. NIJHAWAN 293
[ASHOK BHUSHAN, J.]
33. Emoluments A
[The expression ‘emoluments’ means basic pay as defined in
Rule 9 (21) (a) (i) of the Fundamental Rules which a Government
servant was receiving immediately before his retirement or on
the date of his death; and will also include non-practising allowance
granted to medical officer in lieu of private practice.] B
[EXPLANATION. - Stagnation increment shall be treated as
emoluments for calculation of retirement benefits.]
xxxxxxxxxxxxxxxxxxxxx
19. As noted above, under Fourth Central Pay Commission, C
Scientists ‘G’ were receiving pay scale of Rs.5900-6700 and Scientists
‘H’ were getting pay scale of Rs. 5900-7300. On implementation of
Fifth Central Pay Commission, both the above pay scales were merged
into a single pay scale of Rs.18400-22400 and were designated as
Scientific Officer ‘H’. On peer review, recommendation was made to
sanction of special pay of Rs.2,000/- w.e.f. 01.01.1996. An order dated D
03.02.1999 was issued in this regard, relevant portion of the order is as
follows:-
“NO. DRDO/US101-A/V CPC/MPD/D (R&D)
GOVERNMENT OF INDIA
DEPARTMENT OF DEFENCE RESEARCH & E
DEVELOPMENT NEW DELHI
03 Feb 1999
To,
The Director General Research &
F
Development, Defence Research &
Development Organization, Ministry of
Defence, New Delhi.
Subject:- INCENTIVES FOR SCIENTISTS
The undersigned is directed to state that the question of providing G
incentives to scientists in the Department has been examined by
the Govt. keeping in view the role played by them in the
development of high technology and systems for strategic
applications. Taking all relevant factors into account and in order
to attract, retain, inspire and motivate scientists to give their best
contributions. The President is pleased to sanction following:- H
294 SUPREME COURT REPORTS [2019] 1 S.C.R.
A 2. With effect from Jan 01, 1996
(1) Special pay of Rs.2,000/- p.m. to scientists in the pay scale of
Rs.18,400-22,400, in lieu of a separate higher pay scale, after
peer review.
xxxxxxxxxxxxxxxxxx”
B
20. As noticed above, there were certain clarifications issued by
different office memorandum for example, office memorandum dated
12.08.1999 issued by Government of India, Department of Space that
special pay will not be treated as part of pay for the purposes like, DA,
HRA etc., which led filing of original applications in the Central
C
Administrative Tribunalquestioning the clarificatory order issued by the
Government of India and Central Administrative Tribunal had allowed
the claim of Scientists to reckon the special pay for the purpose of pension.
The Government of India, Ministry of Defence, DRDO has specifically
issued an order dated 13.05.2009, where the Government decided to
D count the aforesaid special pay for pension and pensionary benefits.
Office memorandum dated 13.05.1999 is to the following effect:-
“Tele: 23007252 No. CHRD83101/Incentives-6th CPC/C/P/01
Ministry of Defence,
Defence Research & Development Org
E Dte of Human Resource Development
‘B’ Block, DRDO Bhawan
New Delhi – 110 105.
13th May 2009
The Director
F
(All Labs/Estts)
Subject: INCENTIVES FOR SCIENTISTS – COUNTING OF
G SPECIAL PAY FOR PNEIONSARY PURPOSES.
A copy of GOI, Ministry of Defence letter No. DHRD/85101/
INCENTIVES/VI-CPC/C/P/01/1376/2009/D(R&D) dated 13
May, 2009 on the above subject is forwarded herewith.
H
UNION OF INDIA v. DR. O.P. NIJHAWAN 295
[ASHOK BHUSHAN, J.]
2. As per the above Govt, letter the special pay of Rs.2,000/- p.m. A
granted to Scientist in the pay scale of Rs.18400-22400 w.e.f. 01
Jan 1996 and special pay of Rs.4,000/- p.m. to Scientist in Pay
Band-4 (Rs.37400-67000) with Grade Pay of Rs.10,000/- p.m.
w.e.f. 01 Jan 2006 is to be counted for pension and pensionary
benefits.
B
3. It is requested that the necessary action may be initiated to
revise the PPO of all the Scientists ‘G’ who have retired /
superannuated accordingly.
Sd/-
(T. Chandra Banu) C
Additional Director, HRD
For DGR&D
xxxxxxxxxxxxxxxxxx”
21. As noted above, relying on the said memorandum, the
respondents have filed original applications claiming that with regard to D
them, the orders have not been implemented and they have been denied
computation of special pay for purposes of pension, which claim was
ultimately allowed by the Central Administrative Tribunal vide its order
dated 22.01.2003 against which order, Delhi High Court has dismissed
the writ petition, which led in filing the Civil Appeal in the leading case
by the Union of India. E
22. We now take up first and second issue together. There are
two aspects, which need to be noticed in respect of above issues. Firstly,
original applications filed by Scientists similarly situated was allowed by
Central Administrative Tribunal against which few of the writ petitions
were also dismissed by the High Court and against the judgment of the F
High Court or the Central Administrative Tribunals, matter was carried
by Union of India in this Court where SLPs were dismissed. One of the
orders passed by this Court in SLP (C) No. 4842 of 2009 has been
brought as Annexure P1 in leading Civil Appeal. In order dated
20.04.2009, this Court held “On the facts of the present case, we are not G
inclined to interfere with the impugned judgment and order. The special
leave petition is dismissed. However, the question of law is left open.”
There were few other SLPs filed by the Union of India, which were
dismissed in limine. SLPs having been dismissed in limine, the appellants
are not precluded from raising the issues, which have been sought to be
H
296 SUPREME COURT REPORTS [2019] 1 S.C.R.
A raised in these appeals in this Court. This was also the consequences of
the question of law being left open by this Court as noticed above. We,
thus, are not persuaded to accept the submission of learned counsel for
the respondents that Union of India is precluded from raising the issues
on question of law, which was earlier left open by this Court. Thus, we
have to proceed to decide the question of law as raised by the appellants.
B
Coming to the second aspect of the matter, i.e. the appellants itself having
decided to extend the benefit of special pay for computation of
pension,whether it is still open for the appellants to raise the issue? We
have already noticed the order dated 13.05.2009 of Government of India,
which had directed for counting of special pay for pensionary purposes.
C We have already noticed that in the year 1999 itself, a clarificatory order
was issued by the Union of India that special pay shall not be treated as
a part of pay for the purposes of pension. The above stand, it appears,
was taken by the Government relying on the definition of pay as given
under Fundamental Rule 9(21)(a)(i),thereafter came various orders of
the Central Administrative Tribunals as noticed above, where direction
D
was issued to compute by adding the special pay in the pay for computation
of pension, details of which, we have already noticed above. The
Government of India having already implemented the aforesaid orders
can it still question its own decision, where the benefit has been extended.
23. Learned counsel for the appellants has relied on judgment of
E this Court in in Col. B.J. Akkara (Retd.) Vs. Government of India
and Others(supra). One of the issues in the aforesaid case was Issue
No.(iii) as noticed in Paragraph No.10, which is to the following effect:-
“10. On the contentions urged, the following questions arise for
consideration:
F
xxxxxxxxxxxxxxxx
(iii) Whether the respondents having accepted and implemented
the decision of the Delhi High Court [in K.C. Garg (Dr.) v. Union
of India2] on a similar issue, are required to extend a similar
G treatment to Defence Service Medical Officers also, by cancelling
the circular dated 11-9-2001.
xxxxxxxxxxxxxxxx”
24. By answering Issue No. (iii), following was laid down in
Paragraph Nos. 24, 25 and 26:-
H
UNION OF INDIA v. DR. O.P. NIJHAWAN 297
[ASHOK BHUSHAN, J.]
“24. The respondents have filed an affidavit dated 1-8-2006 A
admitting that in pursuance of the decision of the Delhi High Court,
the circular dated 29-10-1999 had been withdrawn but clarified
that it was withdrawn only in regard to the Civilian Medical
Officers who were petitioners in the said writ petitions and not in
regard to all Civilian Medical Officers. It is contended that the
B
fact that a decision of the High Court had been accepted or
implemented in the case of some persons, will not come in the
way of the Union of India resisting similar petitions filed by others
in public interest.
25. A similar contention was considered by this Court in State of
Maharashtra v. Digambar, (1995) 4 SCC 683. This Court held: C
(SCC p. 691, para 16)
“Sometimes, as it was stated on behalf of the State, the State
Government may not choose to file appeals against certain
judgments of the High Court rendered in writ petitions when
they are considered as stray cases and not worthwhile invoking D
the discretionary jurisdiction of this Court under Article 136 of
the Constitution, for seeking redressal therefor. At other times,
it is also possible for the State, not to file appeals before this
Court in some matters on account of improper advice or
negligence or improper conduct of officers concerned. It is E
further possible, that even where SLPs are filed by the State
against judgments of the High Court, such SLPs may not be
entertained by this Court in exercise of its discretionary
jurisdiction under Article 136 of the Constitution either because
they are considered as individual cases or because they are
considered as cases not involving stakes which may adversely F
affect the interest of the State. Therefore, the circumstance
of the non-filing of the appeals by the State in some similar
matters or the rejection of some SLPs in limine by this Court in
some other similar matters by itself, in our view, cannot be
held as a bar against the State in filing an SLP or SLPs in other G
similar matter(s) where it is considered on behalf of the State
that non-filing of such SLP or SLPs and pursuing them is likely
to seriously jeopardise the interest of the State or public
interest.”
H
298 SUPREME COURT REPORTS [2019] 1 S.C.R.
A 26. The said observations apply to this case. A particular judgment
of the High Court may not be challenged by the State where the
financial repercussions are negligible or where the appeal is barred
by limitation. It may also not be challenged due to negligence or
oversight of the dealing officers or on account of wrong legal
advice, or on account of the non-comprehension of the seriousness
B
or magnitude of the issue involved. However, when similar matters
subsequently crop up and the magnitude of the financial implications
is realised, the State is not prevented or barred from challenging
the subsequent decisions or resisting subsequent writ petitions,
even though judgment in a case involving similar issue was allowed
C to reach finality in the case of others. Of course, the position
would be viewed differently, if petitioners plead and prove that
the State had adopted a “pick-and-choose” method only to exclude
petitioners on account of mala fides or ulterior motives. Be that
as it may. On the facts and circumstances, neither the principle of
res judicata nor the principle of estoppel is attracted. The
D
administrative law principles of legitimate expectation or fairness
in action are also not attracted. Therefore, the fact that in some
cases the validity of the circular dated 29-10-1999 (corresponding
to the Defence Ministry circular dated 11-9-2001) has been upheld
and that decision has attained finality will not come in the way of
E the State defending or enforcing its circular dated 11-9-2001.”
25. The ratio as laid down by this Court in above case is fully
attracted in the facts of the present case, thus, we conclude that the fact
that appellant has implemented the earlier orders passed by the Central
Administrative Tribunals and the High Courts and issued order for
F including special pay in the pay for the purpose of computation of pension,
the Union of India is not precluded to raise the issues again, the principle
of res judicata or estoppel are not attracted.
26. Now, we come to the main issue, i.e. Issue No. (iii). The
submission which has been pressed by the learned counsel for the
G respondent is that the special pay of Rs.2,000/-, which was sanctioned
by the office memorandum dated 03.02.1999, although describes the
said amount of Rs.2,000/- as special pay but the real nature of the aforesaid
payment was not the special pay as defined in Fundamental Rule 9(25).
The said payment was in lieu of a separate higher pay scale.
H
UNION OF INDIA v. DR. O.P. NIJHAWAN 299
[ASHOK BHUSHAN, J.]
27. We revert back to meaning of special pay underlined in A
Fundamental Rule 9(25) and as per the above rule, special pay means
“an addition, of the nature of pay, to the emoluments of a post or of a
Government servant”. A special pay is one granted in consideration of
(a) the special arduous nature of the duties; or (b) a specific addition to
the work or responsibility.
B
28. Whether the amount of Rs. 2,000/- sanctioned as special pay
to the respondents were covered within the definition of Rule 9(25) is a
question to be answered. When we look into the memorandum dated
03.02.1999, there is categorical statement that the special pay of
Rs.2,000/- per month is sanctioned to scientists only in the pay scale of
Rs.18,400-22,400, in lieu of a separate higher pay scale, after peer review. C
The order does not indicate that it has been granted to the Scientists due
to specially arduous nature of the duties; orspecific nature/ work of the
respondents. The genesis for amount of Rs.2,000/- as special pay was
on account of the grievances raised by the Scientists when two pay
scales under Fourth Central Pay Commission were merged into one pay D
scale by Fifth Central pay Commission, i.e. Rs.18400-22400. Scientists,
who were in the pay-scale of Rs.6700-7300 had raised grievances and it
was on account of peer review that Government sanctioned the special
pay in lieu of a separate higher pay scale. The memorandum dated
13.02.1999 was obtained by preparing and submitting a Combined Cabinet
Paper to Cabinet Secretariat by all the three mentioned departments to E
remove anomaly that belonged to all scientists, who were in the (pre-
revised) scale of Rs.5900-7300 prior to Fifth Central Pay Commission
and were entitled to higher pay scale but were intermittentlymerged
with a lower pay scale at the time of Fifth Central Pay Commission. If
the genesis of sanction dated 13.02.1999 is taken to its true import, it is F
clear that the said sanction or extension of benefit does not fit in the
definition of special pay as contained in Fundamental Rule 9(25), rather
it was to redeem the pay structure anomaly. Subsequent interpretation
and decision taken by the Union of India for not giving the benefit of
amount of special pay of Rs.2,000/- in definition of pay wasby picking
up the word “special pay” as occurring in office memorandum dated G
03.02.1999.
29. The definition of Fundamental Rule 9(21)(a)(i) clearly excludes
following two from the definition of pay, i.e., (i) the special pay or, (ii)
pay granted in view of his personal qualifications. The special pay as
H
300 SUPREME COURT REPORTS [2019] 1 S.C.R.
A occurring in Fundamental Rule 9(21)(a)(i) has to take colour from the
definition of special pay as contained in Rule 9(25). The special pay as
defined in Rule 9(25) is sanctioned to a Government servant or to a post
looking to the special arduous nature of the duties or a specific addition
to the work or responsibility, which is related to essentially performance
of duties and specific addition to the work. The second exclusion, i.e., it
B
is granted in view of professional qualifications also indicate that the
special pay is only taking into consideration the personal qualifications of
a person. Thus, special pay is in recognition of aforesaid factors and for
compensating in the above circumstances. Special pay is granted for
specific purposes and in response to specific situation and circumstances.
C Thus, there is a rational for excluding special pay from the pay as defined
in Rule 9(21)(a)(i) but the special pay granted by office memorandum
dated 03.02.1999 to the respondents was not in any of the circumstances
as mentioned in Rule 9(25). Rather the said benefit of Rs.2,000/- was in
lieu of a separate higher pay scale. It is, thus, clear that grant of special
pay of Rs.2,000/- was in lieu of a separate higher pay scale, which does
D
not fit in the nature of special pay as contemplated by Rule 9(25). Thus,
the addition as granted by office memorandum dated 03.02.1999 also
does not fit in the special pay, which is excluded from the definition of
pay given under Rule 9(21)(a)(i). Thus, addition of benefit of Rs.2,000/
- w.e.f. 01.01.1996 styled as special pay has to be included in the definition
E of pay given under Rule 9(21)(a)(i) looking to the true nature and
character of the benefit, which was extended to Scientists on the basis
of peer review. We, thus, do not find any infirmity in the decisions of the
Central Administrative Tribunals or High Courts holding that the amount
of special pay of Rs.2,000/- w.e.f. 01.01.1996 and Rs.4,000/- w.e.f.
01.01.2006 to be treated as part of pay for the basis of computation of
F
pension. For the reasons as mentioned above, we, thus, do not find any
merit in these appeals, which are accordingly dismissed.
Nidhi Jain Appeals dismissed.
G
H
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