Allowed

Lakshadweep Special Pay Opted Pensioner'S Association v. the Administrator

Kerala HC15 Jan 2020OP (CAT)/2436/2013

Case brief

AI extract

What is this about?

Employees deputed to Lakshadweep claimed that Special Pay should be merged into Basic Pay for pay fixation and pension on implementation of the Vth Central Pay Commission. The High Court held that the earlier inter parte declaration bound the authorities, set aside the Tribunal's cut-off of 01.01.1996, and directed notional pay fixation and revised pension with arrears.

What did the court decide?

Pay as on 31.12.1995 to include Special Pay in Basic Pay; pay fixation as on 01.01.1996 under Vth CPC on that basis; notional increments and last pay drawn; pension revised; arrears paid within six mo

Lakshadweep Special Pay Opted Pensioner'S… — Pension and Retirement Benefits | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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WEDNESDAY, THE 15TH DAY OF JANUARY 2020 / 25TH POUSHA, 1941

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OP (CAT).No.2379 OF 2013(Z)

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AGAINST THE ORDER/JUDGMENT IN OA 1059/2011 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH

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PETITIONERS:

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1 K.R GOVINDAN, S/O.RAMAN NAIR,(RETIRED), HEADMASTER, JBS(S), KADMAT, UT OF LAKSHADWEEP, RESIDING AT SANGEETHA, METTADI, P.O.PORORA, VIA MATTANNUR KANNUR670702.

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2 SMT. P. VALSALA,W/O. M.S.N. NAIR, HEADMASTER, JBS(C) KADMAT, UT OF LAKSHADWEEP. RESIDING AT HARSHRI AGRAHARAM, NALLEPPALLY.P.O., PALAKKAD-678553.

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3 P.M. DEVADASAN NAIR, AGED 74 YEARS S/O. KUTTYRAMAN NAIR,(RETIRED), PTI, GHSS KAVARATTI, RESIDING AT DEVA SADAN, VALLIKKUNNUI, KADALUNDINAGARAM, KOZHIKODE-673314.

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4 SHRI. S. ALIMOHAMMED, AGED 70 YEARS (RETIRED, S/O. MOHAMMED, HEADMASTER, JBS(S), KILTAN RESIDING AT SANKETHATHIL HOUSE, KOPPAM, P.O., PULASSERI,PATTAMBI-679307.

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5 SHRI. K. RAGHAVAN, AGED 73 YEARS (RETIRED), S/O. KOCHAPPY PANICKER, HEADMASTER, JBS(N) AMINIUT OF LAKSHADWEEP, RESIDING AT DEEPTYHI, VENKULAM THOPPU, CHEMPAKAMANGALAM, P.O. KORANI, THIRUVANANTHAPURAM-695014.

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6 SHRI. C.V. CHANDRADAS, AGED 71 YEARS RETIRED, S/O. KESAVA MENON,(RETIRED) HEADMASTER, JBS ANDROTT. RESIDING AT SAGARIKA, VAIDYARANGADI, RAMMANATTUKARA, KOZHIKODE-673633.

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7 SHRI. A.J. MARCOSE,AGED 72 YEARS RETIRED, S/O. A.G. JOHN, HEADMASTER, JBS(S) AMINI, UT OF LAKSHADWEEP, RESIDING AT ALU PARAMBIL HOUSE, THALACODE.P.O., MULANTHURUTHY, KOCHI-682314.

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8 SMT. A.J. LILLYRETIRED, AGED 71 YEARS (RETIRED),W/O. A.J. MARCOSEHEADMASTER, JBS(C), AMINI UT OF LAKSHADWEEP, RESIDING AT ALUPARAMBIL HOUSE, THALACODE.P.O., MULANTHURUTHY, KOCHI-682314.

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9 SHRI.K.RANGANATHAN, AGED 72 YEARS S/O. KMC NAMBIAR, (RETIRED), PRIMARY SCHOOL TEACHER, JBS (MC), ANDROTT, UT OF LAKSHADWEEP, RESIDING AT SREEVILLA, PUTHUPPALLY SOUTH, P.O. PUTHUPPALY, KAYAMKULAM-690 527.

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10 SMT.P.M.REBECCA, AGED 72 YEARS W/O. LATE SHRI.ANAGHAN (RETIRED), PRIMARY SCHOOL TEACHER, GOVT. JBS (KEECHERRY), ANDROTT, RESIDING AT CARE SAJU VARNAN, 17-C, POCKET-A2, MAYUR VIHAR, PHASE-3, NEW DELHI-110 096.

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11 SMT.VIJAYAKUTTY VISWAMITHRAN AGED 63 YEARS, (LR OF P.VISWAMOTHRAN), W/O.P.VISWAMITHRAN (LATE), RESIDING AT MULACKAL THEKKETHIL, NEERAVIL, P.O. PERNAD, KOLLAM-691 601.

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12 SMT.T.X.THRESIAMMA, AGED 72 YEARS W/O.Y.GOERGE, (RETIRED), PRIMARY SCHOOL TEACHER, JBS(C), AMINI, UT OF LAKSHADWEEP, RESIDING AT PLAVILA PUTHEN VEEDU, KARAVALUR P.O., VIA PUNALUR, KOLLAM-691 318.

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13 SMT.K.C.ANNIE, AGED 68 YEARS W/O.P.JACOB, (REGIRED) CRAFT TEACHER, S.B.SCHOOL, KAVARATTI, UT OF LAKSHADWEEP, RESIDING AT CHEMPALA KUNNIL HOUSE, NARICKAL P.O., VIA PUNALUR, KOLLAM-691 326.

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14 SHRI.K.A.MATHAI, AGED 73 YEARS S/O.ABRAHAM, (RETIRED), BOILERMAN, CANNING FACTORY, MINICOY, RESIDING AT KALLADANTHIYIL, P.O.NEENDUR, KOTTAYAM-686 601.

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15 SMT.K.M.SUDHIKSHINA DEVI AGED 71 YEARS, W/O.SUNDARAN (RETIRED), K.V.NURSERY TEACHER, AMINI, UT OF LAKSHADWEEP, RESIDING AT LAKSHMI BHAVAN, NO.5/165,

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THARAKALAM, PO CHITTUR, PALAKKAD-678 101.

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16 ELIZEBETH LUKOSE, W/O.SHRI.V.V.YOHANNAN (LATE), VADAKKANETH HOUSE, H.NO.10, MYTHRI NAAR, P.O. VADUTHALA, KOCHI-682 023.

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17 SMT.PREMALATHA DEVI, AGED 70 YEARS W/O.K.R.GEORGE, (RETIRED), TEACHER, NUSERY SCHOOL, AMINI, RESIDING AT KACHIPPILLY HOUSE, P.O.CHENGALUR, THRISSUR-680 312.

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18 SMT.VIJAYA VISWANATH, AGED 62 YEARS (LR OF P.VISWANATHAN), W/O.P.VISWANATHAN (LATE), RESIDING AT VALIYA VEEDU, GUARDIAN CONTROLS ROAD, VENGALUR P.O., THODUPUZHA -685 584.

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19 SHRI.MONY P.S., AGED 72 YEARS S/O.PADMANABHA PANICKER (RETIRED), ASSISTANT DIRECTOR, DEPARTMENT OF EDUCATION KAVARATTI, RESIDING AT ANAND, NAVODAYA STUDIO ROAD, THENGODE P.O., THRIKAKKARA, KOCHI-682 030.

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20 JOHN T.V., AGED 69 YEARS S/O.OUSEPH VARKEY (RETIRED) JUNIOR ENGINEER (FISHERIES), FISHERIES DEPT. KAVARATTI, RESIDING AT THURUTHIKKARA, P.O. POTTA, CHALAKUDY, THRISSUR-680 722.

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21 BHASKARAN NAIR K., AGED 70 YEARS S/O.KUNHIRAMAN (RETIRED), ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, CO-OPERATIVE DEPT., KAVARATTI, RESIDING AT PRARTHANA, NO.27/82, THIRUVANGAD, THALASSERY, KANNUR-670 103.

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22 PREMA, W/O.K.ASOKAN (LATE), RANJIRAJ, NO.48/806, VELUTHOO PARAMBA, RARICHAN ROAD, KOZHIKODE-673 006.

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23 V.P.RAMACHANDRAN NAIR, AGED 65 YEARS S/O.VRP NAIR, (RETIRED), HINDI TEACHER, GHSS, AMINI, RESIDING AT SAGARIKA, ENADI, KULASEKHARA MANGALAM, VAIKKOM-686 608.

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24 ANITHA,W/O.PRATHAPAN K.P. (LATE), PRATHAP, KAKKARA, P.O.KATHIROOR, VIA-THALASSERY, KANNUR-

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670 642.

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25 MOHANAN K.C. AGED 70 YEARS S/O.KRISHNAN, (RETIRED), SUPERINTENDENT, DIST PANCHAYATH, KAVARATTI, RESIDING AT SREELAKAM, NO.PP 1/302-A, KOTTALI ROAD, PODIKUNDU, PALLIKKUNNU, KANNUR-670 004.

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26 SOMASUNDARAN T. AGED 66 YEARS S/O.UNNALAN, (RETIRED), SUB INSPECTOR OF POLICE (VIG), KAVARATTI, RESIDING AT RIBINI, EDAKKAL, PUTHIYANGADI, KOZHIKODE-673 021.

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27 SREEDHARAN T. AGED 65 YEARS S/O.KELUKUTTY, (RETIRED), HEAD CONSTABLE, POLICE STATION, KAVARATTI, RESIDING AT SREELAYAM, THAVARAKKATTIL, MODAKKALLUR, VIAATHOLI, KOZHIKODE-673 315.

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28 V.NARAYAN NAMBUDIRI, AGED 67 YEARS S/O.RAMAN NAMBUDIRI, (RETIRED), HEADMASTER, GHSS, KILTAN, VALLIVATTOM ILLAM, P.O.NARIKUNNI, KOZHIKODE-673 585.

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29 SREEDHARA KURUP P.P., AGED 69 YEARS S/O.RAMA KURUP, (RETIRED), SUB INSPECTOR OF POLICE, KAVARATTI, RESIDING AT FIELD VIEW, P.O.VENGERI, CALICUT-10, KOZHIKODE-673 010.

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30 SMT.PUSHPA, W/O.RAVINDRAN T.K.(LATE), VALAPPIL HOUSE, MUKAVOOR, ERANHIKKAL, VIA-ELATHUR, KOZHIKODE-673 303.

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31 T.VASU NAIR, AGED 70 YEARS S/O.KUNHIRAMAN NAIR (RETIRED), ASSISTANT LAB INSPECTOR OF POLICE, CHETLAT, UT OF LAKSHADWEEP, RESIDING AT THETTATH HOUSE, VATAYAM MOKER, NADUPOIL, KOZHIKODE-673 518.

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32 K.P.VIJAYARAGHAVAN, AGED 70 YEARS S/O.KANNAN MASTER, (RETIRED), JUNIOR ENGINEER, PWD, KAVARATTI, RESIDING AT KUNI PATIKKAL HOUSE, KALPATHUR P.O., VIA 0 MEPPAYUR, KOZHIKODE-673 524.

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33 C.M.GANGADHARAN, AGED 70 YEARS

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S/O.GOPALAN NAIR, (RETIRED), ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, COOPERATIVE DEPARTMENT, KAVARATTI, RESIDING AT ROOP KALA, NO.IX/131, RAROTH, MUCHUKUNNU, KOYILANDY, KOZHIKODE-673 307.

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34 SMT.V.SYAMALA, AGED 69 YEARS,D/O.VENKITESWARA PAI, (RETIRED), HINDI TEACHER, GHSS, MINICOY, RESIDING AT VENKITESA NIVAS, OPPOSITE LAKSHMI CLINIC, P.O.CHERAI, ALUVA-683 514.

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35 SMT.SUJANI W/O.BALAKRISHNAN K. (LATE), AMBADI, PANANGAD P.O., VIA-BALUSSERY, KOZHIKODE-673 612.

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36 K.R.VENKITACHALAM, AGED 65 YEARS, S/O.PROF. RAMAKRISHNAN, (RETIRED), OSD (ACADEMIC), EDN WING, LD OFFICE, W/ISLAND, KOCHI-3, RESIDING AT SHANTIKUTEER, D-137, SIXTH CROSS-STREET, MAHARAJA NAGAR, TIRUNELVELI-62701.

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37 N.VISWANATHAN, AGED 64 YEARS S/O,APPUTTY, (RETIRED), ASSISTANT SUB INSPECTOR OF POLICE, POLICE STATION, AGATTI, PRAVI NIVAS, NADU VALAPPIL, MANGALAM, VIA-TIRUR, MALAPPURAM676 561.

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38 M.SREENIVASAN, AGED 71 YEARS S/O.VISWANATHA PILLAI, (RETIRED), METER MECHANIC, ELECTRICITY, MINICOY, RESIDING AT H.NO.14, MGR NAGAR, BEHIND KRISHNA COLONY, SINGANALLUR, COIMBATORE-5.

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39 LAKSHADWEEP SPECIAL PAY OPTED PENSIONERS ASSOCIATION REPRESENTED BY ITS SECRETARY, SHRI.R.SADHASIVAN NAIR, SRUTHI, NRA.G/20 NCC NAGAR, PEROORKADDA, THIRUVANANTHPAURAM-695 005.

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40 ADDL.P40 - VASUMATHY K.,AGED 75 YEARS W/O.C.V.CHANDRADAS (LATE), RESIDINGA T SAGARIKA, (P.O.) VAIDYARANGADI, VAIDYARANGADI, RAMANATTUKARA, CALICUT - 673 633.

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41 ADDL.P41-ALEYAMMA MATHAI,AGED 75 YEARS W/O.K.A.MATHAI (LATE), KALLADANTHIYIL HOUSE, NEENDOOR P.O., KOTTAYAM - 686 601.

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42 ADDL.P42-T.SAVITHRI,AGED 60 YEARS W/O.K.C.MOHANAN (LATE),SREELAKAM, KOTTALI ROAD, PADIKUNDU, PALLIKUNNU P.O., KANNUR - 670 004.

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43 ADDL.P43 - RUGMINI R.AGED 67 YEARS W/O.GANGADHARAN (LATE), ROOPKALA RAROTH, P.O.MUCHUKUNNU, KOYILANDI - 673 307.

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44 ADDL.P44-VIJAYA,AGED 66 YEARS W/O.SRINIVASAN (LATE), NO.15,MGR NAGAR, BEHING KRISHNA COLONY, SINGANALLUR P.O., COIMBATORE - 641 005. ADDITIONAL PETITIONER NOS.40 TO 44 ARE IMPLEADED AS PER ORDER DATED 05/02/19 IN IA NO.2/19 IN OP(CAT) NO.2379/13.

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BY ADVS.

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SRI.P.V.MOHANAN SRI.P.V.MOHANAN

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RESPONDENT/S:

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1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI-110 001.

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2 THE ADMINISTRATOR,UT OF LAKSHADWEEP, KAVARATTI-682 555.

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R1 BY SRI.P.PARAMESWARAN NAIR,ASG OF INDIA R1 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA R2 BY ADV. SRI.MANU.S, CGC, ADMINISTRATION OF THE UNION TERRITORY OF LA

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R2 BY ADV. SRI.S.RADHAKRISHNAN SC LAKSHADWEEP ADMN

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THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 15.01.2020, ALONG WITH OP (CAT).2436/2013(Z), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.PCAT Nos.2379/2013 &2436/2013

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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WEDNESDAY, THE 15TH DAY OF JANUARY 2020 / 25TH POUSHA, 1941

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OP (CAT).No.2436 OF 2013

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AGAINST THE ORDER/JUDGMENT IN OA 1065/2010 OF CENTRAL

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ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH

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PETITIONER/S:

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1 LAKSHADWEEP SPECIAL PAY OPTED PENSIONER'S ASSOCIATION (LSPPA), (AFFILIATED TO THE CENTRAL GOVERNMENT PENSIONERS ASSOCIATION (CGPA), KERALA, HEAD QUARTERS, THRISSUR (REG.NO.1765/98) REPRESENTED BY ITS GENERAL SECRETARY SHRI.R.SADASIVAN NAIR.

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2 R.SADASIVAN NAIR SO.LATE SHRI.K.RAMAN PILLAI AGED 68 YEARS, (HEAD MASTER - RETIRED - GOVERNMENT J B SCHOOL(NORTH) AGATTI, UT OF LAKSHADWEEP) RESIDING ATSRUTHI, NRA-G/20, NCC NAGAR, P.O.PERURKADA,TRIVANDRUM - 695 005.

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3 V.K.BALAKRISHNAN SO.K.K.KESAVAN AGED 69 YEARS, (OPERATOR, CANNING FACTORY, FISHERIES, MINICOY,LAKSHADWEEP - RETIRED), RESIDING AT KEASAVEEYAMNO.19/123, ARA-50, P.O.PALLURUTHY, KOCHI 682006.

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BY ADV. SRI.P.V.MOHANAN

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RESPONDENTS:

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1 THE ADMINISTRATOR, U.T. OF LAKSHADWEEP, KAVARATTI - 682 555.

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2 UNION OF INDIA REPRESENTED BY ITS SECRETARY MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI - 110001.

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R1 BY SRI.MANU.S, SCGC, ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP R1 BY ADV. SRI.P.PARAMESWARAN NAIRASG OF INDIA R1 BY ADV. SRI.MANU.S, CGC, ADMINISTRATION OF THE UNION TERRITORY OF LA R1 BY ADV. SRI.S.RADHAKRISHNANSCLAKSHADWEEP ADMN

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R2 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA R2 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA

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THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 15.01.2020, ALONG WITH OP (CAT).2379/2013(Z), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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[O.P (CAT) Nos.2379/2013 and 2436/2013]

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Dated : 15^th January, 2020

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K.Vinod Chandran, J.

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Both the Original Petitions agitate the very same cause; of inclusion of Special Pay in the Basic Pay and pay fixation to be granted on the implementation of V^th Central Pay Commission (“CPC” for short) w.e.f. 01.01.1996, for the purpose of determination of the last pay drawn for reckoning pension. All the individual petitioners are persons who retired from the service of Union Territory of Lakshadweep having been sent there on deputation from the mainland. They were entitled to Special Pay and Compensatory Allowance at varying rates during the period of the respective Pay Commission recommendations. The claim now

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raised for reckoning pension on the basis of the

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fixation as on 1.1.1996, is on the basis of inter parte judgment in which the very same cause was agitated and a decision rendered in favour of the identical petitioners.

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2. The Tribunal, in the impugned order,

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noticed the inter parte decisions; but, directed the benefit only to those persons who retired anterior to the date from which Special Pay has been excluded from the term Basic Pay, ie, from 01.01.1996 as per the Central Civil Services (Revised Pay) Rules, 1997 [“CCS (RP) Rules” for short]. The petitioners are all aggrieved by the order of the Tribunal since the benefit of the earlier judgment would stand effaced by reason of the fixation of the date at 01.01.1996; which has no nexus to the controversy agitated.

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3. Sri.P.V.Mohanan, learned counsel for

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the petitioners would contend that the

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petitioners' right to have the Special Pay included along with the Basic Pay stood concluded

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by Annexure-A2 order of the Central Administrative Tribunal (CAT), the challenge against which was dismissed in the Special Leave Petition as evidenced from Annexure-A3. All the petitioners were parties in different Original Applications as is seen from the number of Special Leave Petitions, all of which stood rejected by Annexure-A3 order. Despite the Tribunal having decided in their favour the implementation was never carried out. The implementation was only far later in the year 2009 as per Annexure-A7 order. Based on Annexure-A7, the applicants approached the respondent authorities for reckoning their pension in accordance with the declaration made in Annexure-A2 which was specifically re-affirmed in Annexure-A6. On such representations being submitted the official respondents sought to decline the benefit of the order of the CAT by Annexures A8 to A10 which are challenged before

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the Tribunal. Annexure A8 speaks of restricting

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the benefit to the petitioners in O.A. 618 of 2002, especially noticing the observations in A6 judgment; a challenge made from the order in that OA. The petitioners are entitled to pay fixation as on 01.01.1996, which is the date of implementation of the Vth CPC. Such pay fixation has to be carried out conferring the benefit of the order at Annexure-A2, by merging their Special Pay with the Basic Pay as on 31.12.1995.

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4. It is also argued that on

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implementation of the Vth CPC, they are entitled to the revised pay on fixation from 01.01.1996 with reference to the Basic Pay as on 31.12.1995, which includes the Special Pay. That benefit is not claimed as of now and it is only prayed that on such pay fixation as on 01.01.1996, further benefits of notional fixation and benefit of increments may also be granted for determination of the last pay drawn, on the respective dates of

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retirement of the petitioners. This has to be the

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last pay drawn for the purpose of determining the pension, is the contention.

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5. The learned Standing Counsel,

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Sri.S.Manu however refutes such contention. It is pointed out that the definition of emoluments stood amended as on 01.09.1988 in the Central Civil Services (Pension) Rules, 1972 and not the CCS (RP) Rules as found by the Tribunal. After the amendment, the Special Pay cannot be reckoned as Basic Pay which has been specifically taken note of in Annexure-A6 judgment. The relief sought for in the OA, is for fixation of pension by notionally fixing the pay under Rule 7 of the CCS (RP) Rules, 1997. The CCS (RP) Rules, 1997 as in the the CCS (RP) Rules of 1986 defines Basic Pay as “pay as defined in Fundamental Rules 9(21)(a) (i)”. The definition under the FR specifically excludes Special Pay from Basic Pay. This has been taken note of in Annexure-A6 judgment which has

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been followed by another Division Bench in

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Ext.R2(f) produced along with the counteraffidavit of the official respondents. It is pointed out that noticing the amendment to the CCS (Pension) Rules and the definition of Basic Pay in the CCS (RP) Rules, the Tribunal has allowed the benefit only to those persons who retired prior to 01.01.1996 and there can be no interference to that. The learned Standing Counsel prays for rejection of the Original Petitions.

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6. At the outset we have to notice that

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legally there is considerable force in the arguments addressed by the learned Standing Counsel. Very relevant is the fact that there is an amendment made to the CCS (RP) Rules, 1997; specifically of Rule 33 under Chapter IV; which has the nominal heading 'Emoluments'. Rule 33 spoke of 'Emoluments' as pay defined in rule 9(21) of the FR while after the amendment from 01.09.1988, it defined emoluments as pay defined in rule 9(21)(a)(i) of the FR.

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The FR 9(21) reads as under :

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Pay means the amount drawn monthly by a Government servant as -

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(i) the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively on in an officiating capacity, or to which he is entitled by reason of his position in a cadre; and

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(ii) overseas pay, special pay and personal pay; and

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(iii) any other emoluments which may be specifically classed as pay by the President.

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7. Prior to amendment as per the

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definition under FR 9(21), emoluments paid include overseas pay, special pay and personal pay as in clause (a)(ii) while when it is confined to 9(21) (a)(i) special pay and pay granted in view of

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personal qualifications are specifically excluded from the definition. The amendment having been brought in 1988 when the IV^th CPC period was current, there could not have been a merging of Special Pay and Basic Pay for the purpose of determining the Basic Pay of a main-lander who was deputed to the island of Lakshadweep, a Union Territory. This has been specifically noticed by another Division Bench at Annexure-A6; but however the legal position was found to be inconsequential

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in view of the inter parte order in Annexure-A2. We are called upon to decide a similar case, the only distinction being Annexure-A6 considered the case of employees who retired in 1996 and 1997 while here we are concerned with the petitioners who retired between 2000 and 2006.

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8. We need not labour much on the history

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of the litigation and need only start from Annexure-A2 onwards for adjudicating the issue projected here. Admittedly Special Pay and

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compensatory allowance were sanctioned with respect to persons who opted for deputation from the mainland to the Union Territory of Lakshadweep. The percentage varied in different periods and on implementation of the IVth CPC as on 01.01.1986, the Special Pay was at 80% of the Basic Pay and compensatory allowance at 10%. In the course of the years there was a special compensatory allowance declared for all employees working in the Union Territory of Lakshadweep based on which the Special Pay was attempted to be withdrawn. There were a series of litigation which eventually concluded with the Tribunal ordering that those who were entitled to Special Pay and compensatory allowance will not be entitled to special compensatory allowance and vice versa .

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9. The petitioners are persons who opted

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for deputation and also by virtue of the orders of the Tribunal, opted for Special Pay along with the compensatory allowance. Annexure-A2 was the order

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in the O.A which sought for reckoning the Special Pay and compensatory allowance as Basic Pay for the purpose of calculation of dearness allowance, travelling allowance, pension, gratuity etc. The Tribunal allowed the claim with respect to the Special Pay and declared that “the applicants are entitled to be paid island's Special Pay to be reckoned at 80% of the Basic Pay applicable to them from time to time including the revised pay after 1.1.1986 subject to a maximum of Rs.500/per month”. Though the applicants' entitlement to compensatory allowance at 10% of the Basic Pay subject to a maximum of Rs 150/- was also declared, only the element of the island's Special Pay was declared as liable to be treated as part of Basic Pay for all purposes including dearness allowance, pension, retirement benefits and other service benefits. The amendment of Rule 33 in the CCS (Pension) Rules, 1972 was not noticed by the

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Tribunal at Annexure-A2. The above order was

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challenged by the Administration of Lakshadweep before the Hon'ble Supreme Court, but the Special Leave Petition was dismissed as per AnnexureA3. Subsequently, applications were moved before the CAT by identically situated persons which were all

¶163

allowed as is seen from Ann's: A4 and A5. The subsequent orders were challenged in the Original Petitions which resulted in Annexure-A6.

¶164

10. Annexure A6 noticed the amended Rule 33 of the CCS (Pension) Rules, 1997 and FR 9(21)(a) (i). Read together it left no room for doubt that the Island Special Pay cannot be reckoned as part of the Basic Pay for the purpose of computing pensionary benefits, was the categoric finding. However, it was found that the basis of the inter parte judgment cannot be knocked out easily and its effect can be nullified only by amending the law with a non- obstante clause. Finding that no such legislative exercise has been resorted to, it

¶165

¶166

O.PCAT Nos.2379/2013 &2436/2013

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was held that the inter parte judgment binds the respondents. It is based on this observation that AnnexureA8 has been issued, which again is no legislative exercise. Here we have to respectfully notice the slight reservation we harbour, insofar as there being no possible legislative exercise.

¶168

11. The rule position was clear from 01.09.1988 when Rule 33 of the CCS (Pension) Rules stood amended defining pay as defined in Rule 9(21)(1)(a)(i)which specifically excluded Special Pay. The order of the Tribunal, which went contrary to the rule position, could not have been nullified by any legislative exercise of amendment with a non- obstante clause. It could only have been corrected in appeal, which however failed, as seen from Annexure A3. Annexure A2 though contrary to law, its binding nature as far as the parties to the lis cannot be easily brushed aside. Annexure A2 order, passed in the year 1992, was affirmed by the Hon'ble Supreme Court in a series

¶169

O.PCAT Nos.2379/2013 &2436/2013

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¶171

of SLPs which restrains us from causing any interference to the declaration made by the Tribunal in Annexure A2 regarding the Special Pay being liable to be reckoned as Basic Pay.

¶172

12. We are also bound by the finding in

¶173

Annexure A6 of the binding nature of the order of the Tribunal on the parties to the lis; dehors the rule position. As we noticed by Annexure A2, the Tribunal categorically declared that the Special Pay has to be reckoned as Basic Pay. The Special Pay of 80% of the Basic Pay subject to a maximum of Rs.500/- was one conferred by the IV^th CPC which was implemented on 01.01.1986 which CPC recommendations continued up to 01.01.1996 when the V^th CPC was implemented. It was during the IV^th CPC period that the applicants moved the CAT for reckoning the Special Pay as Basic Pay. The same was allowed as per Annexure A2 which was followed in certain later Original Applications.

¶174

The challenge against Annexure A2 before the

¶175

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O.PCAT Nos.2379/2013 &2436/2013

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Hon'ble Supreme Court stood rejected and Annexure A2 attained finality. When the subsequent orders following Annexure A2 was challenged before this Court, the Division Bench of this Court by Annexure A6 again affirmed the binding nature of Annexure A2 despite finding the rule position to be contrary to the decision taken by the Tribunal.

¶178

13. The decision of the Division Bench as

¶179

pointed out by the learned Standing Counsel at Annexure R2(f) followed Annexure A6 decision. While noticing the observation in Annexure A6 that the Special Pay cannot be included in the Basic Pay; the Division Bench failed to notice that despite that Annexure A6 allowed the respondents therein to be granted pension reckoning the special pay also as basic pay. Further the respondents in Annexure R2(f) does not claim the benefit of an inter-parte decision in their favour. Here the specific claim is that the

¶180

petitioners were the petitioners in the Original

¶181

O.PCAT Nos.2379/2013 &2436/2013

¶182

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Petition which resulted in Annexure A2 order or are applicants in other proceedings in which Annexure A-2 was followed and that had achieved finality.

¶184

14. A doubt arose in our minds as to whether all the individual petitioners here were parties in the earlier dispute. We find that the very same doubt arose in the mind of another Division Bench who passed order dated 15.07.2013 which reads as follows:

¶185

“We have heard the learned counsel for the petitioners and the learned standing counsel for the UT of Lakshadweep. We have also perused the judgment in W.P(C) No. 22461 of 2005 and the order of the Tribunal in O.A.No.580 of 1993 and connected cases. We have no doubt in our mind that the interpretation given to Rule XXXIII of CCS (Pension) Rules dealing with the expression “emoluments”

¶186

O.PCAT Nos.2379/2013 &2436/2013

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has been correctly made in W.P(C) No.22461 of 2005. Reference made to

¶189

FR9(21)(a)(i) is apposite in this context. We also see that said judgment has clearly laid down the position that those who were the beneficiaries of the Tribunal's Order in O.A No.580 pf 1993 and connected cases will carry the same benefit as had accrued to some of them who had filed O.A.No.618 of 2002 before the Tribunal which led to W.P(C) No.22461 of 2005. To make further submissions shorter and to have the consideration pointedly and brief, the learned counsel for the petitioners will now have to provide a statement enlisting those persons who are applicants in the original applications from which these original petitions arise; who were applicants in O.A No.580 of 1993 and

¶190

O.PCAT Nos.2379/2013 &2436/2013

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connected cases ordered by the Tribunal on 27/1/1994.”

¶193

In compliance of the directions issued the petitioners have filed a statement dated 22.07.2013 producing the documents respectively as the order in O.A No.1274/91 dated 03.04.1992, OA No.580/93 dated 27.01.1994, OA No.506/94 dated 23.06.1994, OA No.1291/91 dated 10.08.1992, OA NO.1355/91 dated 30.04.1992, O.A No.1975/91 dated 30.06.1992, O.A No.701/94 dated 27.06.1994 and OA No.478/95 dated 17.04.1995. The list of applicants also have been produced along with the statement hence the inter parte decision is available in the case of all the individual petitioners herein.

¶194

15. It was the implementation of Annexure

¶195

A6 by Annexure A7 in 2009 that led to the present litigation for reason of the implementation having denied similar relief to the applicants. Annexure A8 hence could not have confined the relief to the

¶196

applicants in O.A 618 of 2002, since the order in

¶197

¶198

O.PCAT Nos.2379/2013 &2436/2013

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the said O.A followed Annexure A2 order, where the

¶200

petitioners herein are the applicants.

¶201

16. Reckoning the declaration of Special

¶202

Pay liable to be included in the Basic Pay as having acquired finality, we cannot, but, observe that during the IV^th CPC period, Special Pay granted to the petitioners had to be merged with the Basic Pay and the Dearness Allowance calculated on that larger amount of Basic Pay. Then, on 31.12.1995, the Basic Pay of the petitioners would include the Special Pay, at the rate of 80% subject to a maximum of Rs.500/-. The reckoning of Basic Pay including the Special Pay hence crystallizes during the IV^th CPC period itself. If that be so, on implementation of V^th CPC as on 01.01.1996, for the purpose of pay fixation, the pre-revised pay of the petitioners have to be reckoned as inclusive of Basic Pay + Special Pay with Dearness Allowance on the total amount so reckoned.

¶203

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O.PCAT Nos.2379/2013 &2436/2013

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17. The amendment to the definition of

¶206

Emoluments as found in the Pension Rules occurred

¶207

long before in the year 1988 which was not noticed by the Tribunal. The order of the Tribunal having acquired finality there could not

¶208

be a different view taken at this point. The Tribunal in the impugned order has in purported recognition of the amended Rule position directed the benefit to be granted only to those persons who retired prior to 01.01.1996. The date so fixed has absolutely no nexus with the controversy arising in these matters which is the pay fixation as on the implementation of V^th CPC. The V^th CPC was implemented on 01.01.1996 which does not change the rule position nor the binding effect of the order of the Tribunal passed in 1992 as evidenced from Annexure A2. In fact the amendment to the Rules as noticed by the Tribunal did not occur on 01.01.1996 nor was the relevant definition contained in the CCS (Revised Pay) Rules, 1996.

¶209

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O.PCAT Nos.2379/2013 &2436/2013

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The amendment was far earlier; on 01.09.1988 and

¶212

that too in the CCS (Pension) Rules, 1972. In fact, the benefit of merger of Special Pay with Basic Pay for the purpose of calculating the Dearness Allowance also would have been

¶213

permissible only prior to 01.09.1988 when the definition of Emoluments in the Pension Rules at Rule 33 treated it as pay, as defined in Rule 9(21) of the Fundamental Rules. The date fixed of 01.01.1996 is of no relevance or significance. By enabling the benefit only to those retired prior to 01.01.1996 the Tribunal in effect set aside Annexure A2 order. All the applicants herein retired after 01.01.1996 and the benefit they obtained by the declaration in Annexure A2 cannot be set at naught after so many years.

¶214

18. On the above reasoning, we conclude

¶215

that the O.A is to be allowed. We set aside the

¶216

order of the Tribunal, the impugned orders in the

¶217

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O.PCAT Nos.2379/2013 &2436/2013

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O.A and issue the following directions.

¶220

i) The petitioners' pay as on 31.12.1995

¶221

shall be reckoned including the Special Pay in the Basic Pay.

¶222

ii) The pay fixation as on 01.01.1996 on implementation of V^th CPC shall be made reckoning the pre-revised pay as on 31.12.1995 which includes the component of Special Pay in the Basic Pay.

¶223

iii) After fixation of pay of the

¶224

petitioners as on 01.01.1996 the increments shall be granted as entitled to them and their last pay drawn reckoned, notionally, as on their respective dates of retirements. Their pension shall stand revised in accordance with the determination of last pay as directed by us herein above.

¶225

iv) It is made clear that since the

¶226

petitioners have sought for only fixation of their last pay drawn in accordance with the order of the

¶227

Tribunal, we deem it fit that there need be no

¶228

O.PCAT Nos.2379/2013 &2436/2013

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¶230

arrears of pay disbursed to the petitioners for the period while they were in service. The

¶231

fixation as on 01.01.1996 as also the determination of last pay drawn shall be notional.

¶232

v) The arrears of pension as per the determination directed by us shall be paid in its entirety since no delay can be attributed on the part of the petitioners since the implementation of Annexure A2 order came only in the year 2009 by virtue of Annexure A7 order. Immediately there after Annexure A8 communication was issued in the year 2011 by the Union of India against which a representation was filed and the aforesaid O.A moved in the year 2011 itself.

¶233

vi) The entire arrears along with any commutation, if permissible at this distance of time, shall be paid within a period of six months from the date of receipt of certified copy of this judgment, to the petitioners in accordance with their entitlement.

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O.PCAT Nos.2379/2013 &2436/2013

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¶236

The original petitions (CAT) sand allowed.

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No order as to costs.

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Sd/-

¶239

K. Vinod Chandran, Judge

¶240

Sd/-

¶241

V.G. Arun, Mrcs/jma/16.01 Judge

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O.PCAT Nos.2379/2013 &2436/2013

¶243

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APPENDIX OF OP (CAT) 2379/2013

¶245

PETITIONER'S/S EXHIBITS:

¶246

ANNEXURE A8 TRUE COPY OF THE PROCEEDINGS N.U.14040/24/2003-ANL DATED 10/1/2011. ANNEXURE A9 TRUE COPY OF THE PROCEEDINGS F.NO.10/3/2011-FIN/469 DATED 27/01/2011. ANNEXURE A10 TRUE COPY OF THE PROCEEDINGS F.NO.10/03/2011-F&A/1787 DATED 20/05/2011. ANNEXURE A1 TRUE COPY OF THE ORDER IN OA NO.896/1986 DATED 27/4/1989. ANNEXURE A2 TRUE COPY OF THE ORDER IN OA NO.1274/1991 DATED 3/4/1992. ANNEXURE A3 TRUE COPY OF THE ORDER 1545/94 DATED 6/12/1996. ANNEXURE A4 TRUE COPY OF THE ORDER IN O.A.NO.580/93 AND RELATED MATTERS DATED 27/1/1994. ANNEXURE A5 TRUE COPY OF THE ORDER IN OA NO.618/2002 DATED 22/11/2004. ANNEXURE A6 TRUE COPY OF THE ORDER IN WPC NO.22461/2005(S) DATED 2/1/2008. ANNEXURE A7 TRUE COPY OF THE ORDER F.NO.10/1/09-F&A DATED 29/11/2009. ANNEXURE A11 TRUE COPY OF THE REPRESENTATION DATED 12/08/2011. ANNEXURE A12 TRUE COPY OF THE PROCEEDINGS NO.38/6/2011-P&PW(A) DATED 07/09/2011. ANNEXURE R2(A) TRUE COPY OF OFFICE ORDER F.NO.10/1/09-

¶247

O.PCAT Nos.2379/2013 &2436/2013

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¶249

	F&A DATED 29/11/2009.
ANNEXURE R2(B)	TRUE COPY OF OFFICE ORDER F.NO.10//09- F&A DATED 16/12/2010.
ANNEXURE MA(1)	TRUE COPY OF THE ORDER PASSED BY THE HON'BLE TRIBUNAL IN OA 1059/2011 DATED 04/07/2012.
ANNEXURE RA1	TRUE COPY OF THE ORIGINAL APPLICATION NO.618/2002 DATED 25/6/2002.
ANNEXURE RA2	TRUE COPY OF THE ORDER IN MA 853/2012 IN OA NO.1059/2011 DATED 14/11/2010.
ANNEXURE RA3	TRUE COPY OF THE PROCEEDINGS F.NO.PEN/81/2005-PAOL DATED 14/2/2013.
EXHIBIT P1	EXT.P1 TRUE COPY OF THE OFFICE MEMORANDUM NO. 3/1/98-E.11(B) DATEED 20-7-1998.
EXHIBIT P2	EXT.P2 TRUE COPYA OF THE ORDER IN PROCEEDING NO. U-14025/2/97-ANL DATED 25-4-2001.
EXHIBIT P3	EXT.P3 TRUE COPY OF THE OA NO. 1059/2011 WITH ALL DOCUMENTS.
EXHIBIT P4	EXT.P4 TRUE COPY OF THE REPLY STATEMENT
EXHIBIT P5	EXT.P5 TRUE COPY OF THE ORDER IN OA 1059/2011 DATED 14-7-2012.
EXHIBIT P6	EXT.P6 TRUE COPY OF THE MA NO. 853/2012 IN O.A. NO. 1059/11 DATED 20-8-2012.
EXHIBIT P7	EXT.P7 TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONER IN MA NO. 853/12 IN OA NO. 1059/11 DATED 29-9- 2012
EXHIBIT P8	EXT.P8 TRUE COPAY OF THE ORDER IN MA NO. 853/2012 IN OA NO. 1059/11 DATED 14-11-12.

¶250

O.PCAT Nos.2379/2013 &2436/2013

¶251

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EXHIBIT P9 EXT.P9 TRUE COPY OF THE REVBIEW APPLICATION NO.6 2013 IN MA NO. 853/12 IN OA NO. 1059/11 DATED 17-12-12.

¶253

EXHIBIT P10 EXT.P10 TRUE COPY OF THE ORDER IN RA NO. 6/2013 IN OA NO. 1059/11 DATED 9-41`3. EXHIBIT P11 EXT.P11 TRUE COPY OFD THE PROCEEDING F.NO.10/3/11-FIN/1333 DATED 20-4-13. EXHIBIT P12 EXT.P12 TRUE COPY OF THE MA 320/13 IN RA NO. 6/2013 ENCLOSING NOTICE OF RECOVERY.

¶254

RESPONDENT'S/S EXHIBITS:

¶255

EXHIBIT R2(A) A TRUE COPY OF THE ORDER PASSED BY THE TRIBUNAL IN OA NO.1038/99 DATED 05/07/2000. EXHIBIT R2(B) A TRUE COPY OF THE ORDER PASSED BY THE CAT ERNAKULAM BENCH IN O.A.NO.861/2003 & CONNECTED ORIGINAL APPLICATIONS DATED 18/09/2007. EXHIBIT R2(C) A TRUE COPY OF THE RELEVANT EXTRACT OF CCS (RP) RULES 1986. EXHIBIT R2(D) A TRUE COPY OF THE RELEVANT EXTRACT OF CCS (RP) RULES 1997. EXHIBIT R2(E) A TRUE COPY OF THE RELEVANT EXTRACT OF CCS (RP) RULES 2008.

¶256

EXHIBIT R2(F) A TRUE COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN WPC NO.30943/2005 DATED 09/04/2008.

¶257

O.PCAT Nos.2379/2013 &2436/2013

¶258

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APPENDIX OF OP (CAT) 2436/2013

¶260

PETITIONER'S/S EXHIBITS:

¶261

ANNEXURE A1 TRUE COPY OF THE ORDER IN OA NO.896/1986 DATED 27.4.1989

¶262

ANNEXURE A2 TRUE COPY OF THE ORDER IN OA NO.1274/1991 DATED 3.4.1992 ANNEXURE A3 TRUE COPY OF THE ORDER F.NO.PEN/REV/27/2002-PAOL DATED 31.3.2003 FIXING THE PENSION OF THE APPLICANT NO.2 ANNEXURE A4 TRUE COPY OF THE ORDER F.N.PAO/PEN/35/2000-PAOL/624 DATED 10.7.2000 FIXING THE PENSION OF THE APPLICANT NO.3

¶263

ANNEXURE A5 TRUE COPY OF THE ORDER IN OA NO.618/2002 DATED 22.11.2004

¶264

ANNEXURE A6 TRUE COPY OF THE ORDER IN WPC NO.22461/2005(S) DATED 2.1.2008

¶265

ANNEXURE A7 TRUE COPY OF THE ORDER F.NO.10/1/09-F&A DATED 29.11.200986

¶266

ANNEXURE A8 TRUE COPY OF THE ORDER F.NO.PEN/27/2002-PAOL DATED 15.7.2010 REVISING THE PENSION OF THE APPLICANT NO.2

¶267

ANNEXURE A9 TRUE COPY OF THE ORDER F.NO.PEN/35/2000-PAOL DATED 8.2010

¶268

ANNEXURE A10 TRUE COPY OF THE REPRESENTATION DATED 29.10.2010.

¶269

ANNEXURE MA (1) TRUE COPY OF THE ORDER PASSED BY THE HONBLE TRIBUNAL IN OA 1065/2011 DATED 04.7.2012.

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O.PCAT Nos.2379/2013 &2436/2013

¶271

¶272

ANNEXURE RA1 TRUE COPY OF THE ORDER IN MA NO. 854/2012 IN OA NO. 1065/2010 DATED 14.11.2012. EXHIBIT P1 EXT.P-1 TRUE COPY OF THE OFFICE MEMORANDUM NO.3/1/98-E.II(B) DATED 20.7.1998 EXHIBIT P2 TRUE COPY OF THE ORDER IN PROCEEDING NO.U-14025/2/97-ANL DATED 25.4.2001 EXHIBIT P3 TRUE COPY OF THE OA NO.1065/2010 WITH ALL DOCUMENTS. EXHIBIT P4 TRUE COPY OF THE REPLY STATEMENT. ANNEXURE R1 NIL ANNEXURE R1 A COPY OF HIS PENSION CALCULATION SHEET. ANNEXURE R1 (B) TRUE COPY OF THE OFFICE ORDER F.NO.PEN/27/2002-PAOL DATED 15.7.2010 ANNEXURE R1 (C) A TRUE COPY OF THE ORDER F.NO.PEN/27/2002-PAOL DATED 15.1.2011. ANNEXURE R1 (D) COPY OF THE PENSION CALCULATION SHEET OF THE 3RD APPLICANT. ANNEXURE R1 (E) A TRUE COPY OF THE ORDER F.NO.PEN/35/2000-PAOL DATED 8.2010. ANNEXURE R1 (F) A TRUE COPY OF THE DOCUMENT NO.PEN/35/2000-PAOL DATED 15.1.2011. ANNEXURE R1 (G) A TRUE COPY OF THE LETTER NO.U14040/24/2003-ANL DATED 10.1.2011. EXHIBIT P5 TRUE COPY OF THE ORDER IN OA 1065/2010 DATED 04.7 2012. EXHIBIT P6 TRUE COPY OF THE MA NO. 854/2012 IN OA NO. 1065/2020 DATED 20.8.2012. EXHIBIT P7 TRUE COPY OF THE ORDER IN MA NO.

¶273

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¶274

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854/2012 DATED 14.11.20102.

¶276

EXHIBIT P8 TRUE COPY OF THE REVIEW APPLICATION NO. 7/2013 IN MA NO. 854/2012 IN OA NO. 1059/2012 DATED 17.12.2012.

¶277

EXHIBIT P9 TRUE COPY OF THE ORDER IN RA NO. 7/2013 IN OA NO. 1065/2010 DATED 9.4.2013. EXHIBIT P10 TRUE COPY OF THE PROCEEDINGS F. NO. 10/3/2011-FIN /1333 DATED 20.4.2013.

¶278

EXHIBIT P11 NIL EXHIBIT P12 NIL. EXHIBIT P13 TRUE COPY OF THE O M NO. 4/4/97-ESTT. (PAY II) DATED 22.4.1998.

¶279

RESPONDENT'S/S EXHIBITS:

¶280

EXHIBIT R1 NIL. EXHIBIT R1(A) A TRUE COPY OF THE ORDER PASSED BY THE TRIBUNAL IN O.A. NO. 1038/99 DATED 05.07.2000. EXHIBIT R1(B) A TRUE COPY OF THE ORDER PASSED BY THE CAT ERNAKULAM BENCH IN O.A NO. 861/2003 AND CONNECTED ORIGINAL APPLICATIONS DATED 18.09.2007. EXHIBIT R1 (C) A TRUE COPY OF THE RELEVANT EXTRACT OF CCS (RP) RULES 1986. EXHIBIT R1(D) A TRUE COPY OF THE RELEVANT EXTRACT OF CCS (RP) RULES 1997. EXHIBIT R1(E) A TRUE COPY OF THE RELEVANT EXTRACT OF CCS (RP) RULES 2008. EXHIBIT R1 (F) A TRUE COPY OF THE JUDGMENT PASSED BY THIS HONBLE COURT IN WPC NO. 30943/2005 DATED 09.04.2008.

Lakshadweep Special Pay Opted Pensioner'S Association v. the Administrator

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Lakshadweep Special Pay Opted Pensioner'S Association v. the Administrator

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