R RAMA MURTHY Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS application is filed by the applicant, who is a retired pensioner, for a declaration that the impugned letter dated 9.5.01 issued by the Accountant General (A&E), Orissa vide Annexure-I as void and illegal being violative of Articles 14, 16 and 21 of the Constitution of India and law laid down by the Supreme Court of India in various judgments and for a direction to the respondents to pay him the amounts as mentioned in Annexure-V by way of pension and arrears due to him and also to pay the amounts which are fallen short from the said amount claimed by him during the period in question from 28.6.95 to 31.12.95 in terms of the recommendations made by the 4th Central Pay Commission and from 1.1.1996 in accordance with the recommendations of the 5th Central Pay Commission and thereafter in accordance with any such revised fixation of pension the 1st respondent may make from time to time. The applicant also sought for a declaration that the various paragraphs mentioned in the Office Memoranda in Annexure-VI of the present application as being invalid and calculate the pension payable to the applicant by deducting only the surrendered portion of the original pension, amounting to Rs. 403/- from the revised pension, as is done in the case of other pensioners and not 2/3rd of the revised pension. The applicant also sought for a declaration that he is entitled to receive pension as calculated in the case of other pensioners who retired on superannuation and commuted only 1/3rd of their pension (during the period of 15 years, pending restoration of such commuted portion and not in terms of the paragraphs mentioned in Annexure-VI.

(2.) The case of the applicant is briefly as follows:

(3.) AFTER the aforesaid judgment of the Supreme Court, the applicant moved the Supreme Court by way of W.P. (C) No. 67 of 2000 praying that the paragraphs phrased in a manner analogous to the above paragraph occurring in other Office Memoranda issued by the 1st respondent and having the same effect of excluding the applicant and similarly situated, should be struck down. Those paragraphs are 10(a) of O.M. dated 16.4.1987 and Paragraphs 7(a) and 19(a) of O.Ms. dated 27.10.1997 and 10.2.1998 respectively which are mentioned in Annexure-VI. The applicant was however permitted to withdraw the said writ petition with liberty to pursue other remedies, by an order dated 31.7.2000. The applicant therefore approached this Tribunal by filing the present application seeking for declaration that those paragraphs occurring in the above referred Office Memoranda are no longer valid in law being opposed to the law declared by the Supreme Court. The applicant contended that he is entitled to restoration of the entire pension except Rs. 403/- which he had surrendered under Rule 37-A(1)(b) of the CCS (Pension) Rules on 28.6.1995, together with all attendant benefits. Though in the beginning the 1st respondent refused to pay Dearness Relief on full pension, on a direction issued by the Supreme Court in an order dated 31.7.2000, such dearness relief on full pension was paid to him but the 1st respondent reduced the amount by 2/3rd of the pension thus arrived at as per the recommendations of the Pay Commission. AFTER 31.5.1979, on which date the applicant retired, the 1st respondent appointed 4th and 5th pay commissions, which submitted their reports and they were accepted by the 1st respondent with few modifications. In both the reports, an enhancement of the pension payable was recommended and that recommendation was accepted by the 1st respondent. So far as the 4th pay commission report is concerned, it is applicable to the applicant only from 28.6.1995 to 31.12.1995 as from the next date, the 5th pay commission came into force. Therefore, from 28.6.1995 to 31.12.1995, the applicant is entitled to be paid his full pension together with full dearness relief less Rs. 403/-which he had surrendered, and similarly from 1.1.1996, he became entitled to the pension fixed under the 5th Pay Commission less the amount of Rs. 403/-. AFTER the 4th Pay Commission, the full pension so calculated comes to Rs. 1267/- out of which Rs. 403/- [which was surrendered under Rule 37-A(1)(b)] had to be deducted and thus he was entitled to Rs. 864/- per month as pension till 13.12.95. Thereafter in terms of the 5th Pay Commission's report the applicant is entitled to a sum of Rs. 4073/- less Rs. 403/-(which was surrendered under Rule 37-A(1)(b) which comes to Rs. 3670/-. The schedule of calculation is shown at Annexure-V. On the basis of the above, the applicant sought for the above reliefs in the present application.