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), 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. 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 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 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 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.
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 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 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 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]
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 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 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]
1.3 The order dated 13.05.2009 of Government of India, had directed for counting of special pay for pensionary purposes. 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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. 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 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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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