IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10/04/2003
CORAM
THE HONOURABLE MR. JUSTICE P.D.DINAKARAN
W.P.No.7772 of 1998
and W.P.Nos. 7773 to 7782 of 1998
G.S.Krishnan .. Petitioner
in WP:7772/98
M.Rajaratnam .. Petitioner
in WP:7773/98
K.L.Sethuraman .. Petitioner
in WP:7774/98
S.Rethinam .. Petitioner
in WP:7775/98
G.Rajan .. Petitioner
in WP:7776/98
G.Jayaraman .. Petitioner
in WP:7777/98
A.Thiruchiluvai .. Petitioner
in WP:7778/98
P.Arul .. Petitioner
in WP:7779/98
S.Arunachalam .. Petitioner
in WP:7780/98
M.Veluswamy .. Petitioner
in WP:7781/98
K.Athinarayanaswamy .. Petitioner
in WP:7782/98
-Vs-
1. The Union of India rep. by
the Controller General of Accounts
Ministry of Finance
Department of Expenditure
Loknayak Bhavan, New Delhi.
2. The Chief Controller of
Defence Accounts (Pension)
Allahabad.
3. The Defence Pension Disbursing
Office, Annexe Building, 506
Anna Salai, Chennai-18.
4. The Council of Scientific and
Industrial Research, Anusandhan
Bhavan, Rafi Marg, New Delhi-1. .. Respondents
1 to 4 in all
Writ petitions
5. The Senior Manager
Canara Bank, Karaikudi-630 001. .. respondent 5
in WP:7772/1998
WP:7774/1998,
WP:7776/1998,
WP:7777/1998,
WP:7779/1998,
WP:7780/1998 &
WP:7781/1998
6. The Senior Manager
Syndicate Bank of India,
Karaikudi. .. respondent 5
in WP:7773/1998
7. The Senior Manager
State Bank of India, Lalgudi .. respondent 5
in WP:7775/1998
& WP:7778/1998
8. The Senior Manager
Canara Bank, Sathur .. respondent 5
in WP:7782/1998
PRAYER: Petitions under Article 226 of the Constitution of India for issue of
a writ of Mandamus as stated therein.
For Petitioners : Mr.K.R.Vijayakumar
For Respondents : Mr.K.Veeraraghavan, ACGSC
1 to 4
For Respondent 5 : Mr.R.T.Doraisamy
in WP:7775 & 7778/98
For Respondent 5 : Mr.K.R.Ashok
in WP:7772, 7774, for Mr.M.Balachander
7776, 7777, 7779,
7780 to 7782/1998
For Respondent 5 : No appearance
in WP:7773/1998
:ORDER
All the writ petitioners are, admittedly, ex-servicemen who after
their discharge from defence service joined in the Central Electro Chemical
Research Institute (CECRI), Karaikudi, except in the case of the petitioner in
W.P.No.7772 of 1998, who during his service in the Central Electro Chemical
Research Institute (CECRI), Karaikudi was transferred to Central Leather
Research Institute (CLRI), Chennai. Concededly, both the Central Electro
Chemical Research Institute (CECRI) and Central Leather Research Institute
(CLRI) are a constituent unit of the Council of Scientific and Industrial
Research (CSIR), New Delhi, and the fact remains that some of the writ
petitioners have retired on superannuation and some of them continue to be in
service.
2. Even though the petitioners were paid Dearness Relief on pension,
as per their service in the defence, the said Dearness Relief on pension was
subsequently recovered quoting Rule 55A(ii) of the Central Civil Services
(Pension) Rules (hereinafter referred to as the “Rules”), which reads as
follows:
“Rule 55A: Dearness Relief on Pension/Family Pension
(i) …
(ii) If a pensioner is re-employed under the Central or State Government or a
Corporation/Company/Body/Bank under them in India or abroad including
permanent absorption in such Corporation/Company/Body/Bank, he shall not
eligible to draw Dearness Relief on pension/family pension during the period
of such re-employment)”
3. Alleging that the reliance placed by the respondents on Rule
55A(ii) of the Rules, for recovery of Dearness Relief on Pension paid to the
petitioners for their service in the defence, is illegal, arbitrary and
violative of Article 14 of the Constitution of India, as unequals are being
treated as equals, the petitioners seek a writ of Mandamus to pay the Dearness
Relief on pension to the petitioner from time to time and also to refund the
amount already recovered from the pension.
4.1. According to the learned counsel for the petitioners, the said
Rule 55A(ii) of the Rules is not applicable to the case of the petitioners, as
both the Central Electro Chemical Research Institute ( CECRI) and Central
Leather Research Institute (CLRI) are a constituent unit of the Council of
Scientific and Industrial Research (CSIR), which is not coming within the
definition of “State” under Article 12 of the Constitution of India.
4.2. Mr.K.R.Vijay Kumar, learned counsel for the petitioners,
contends that the representations made by the petitioners objecting the
recovery of Dearness Relief on pension were also not considered by the
respondents.
5.1. During the course of the hearing, Mr.K.Veeraraghavan, learned
Additional Central Government Standing Counsel appearing for the respondents 1
to 4, produced before this Court the proceedings of the Government of India,
Ministry of Defence, which reads as follows:
“No.7(1)/95/D(Pens/Sers)
Government of India
Ministry of Defence
New Delhi, dated 30th November 2000
To:
The Controller of Defence Accounts
New Delhi-110066.
Subject:- Recovery of over-payment of Dearness Relief from reemployed
ex-servicemen/family pensioners.
Sir,
I am directed to refer to the Office of the CGDA U.O.No.5137/AT-P,
dated 17.4.2000 regarding grant of Dearness Relief to ex-servicemenVacation of
Stay Orders. The issue of non-realisation of amount of Dearness Relief
already paid to re-employed ex-servicemen has been examined in consultation
with LA (Def) and DP & PW. It has been decided that Dearness Relief already
paid in cases where the pensioner or the family pensioner is no longer alive
may be written off but in respect of all others, recovery is inescapable as
otherwise it would tantamount to discrimination amongst pensioners and may not
be legally tenable.
2. It is requested that necessary instruction may be issued for
initiating the recovery of over-payment of Dearness Relief from reemployed
defence pensioners expeditiously. Wherever Court/CAT Stay exists against the
recovery of over-payment of Dearness Relief, Govt. Counsel and other
concerned authorities may be advised to take necessary action to get the stay
vacated before resorting to recovery.
Sd/-
(I.K.Haldar)
Under Secretary to the Govt. of India”
In the said decision, the Government of India, Ministry of Defence, has
decided that Dearness Relief already paid in the cases where the pensioner or
the family pensioner is no longer alive may be written off, but in respect of
all others recovery is inescapable as otherwise it would tantamount to
discrimination amongst pensioners and may not be legally tenable.
5.2. The learned Additional Central Government Standing Counsel
appearing for the respondents 1 to 4, also contends that the Central Electro
Chemical Research Institute (CECRI) of Central Leather Research Institute
(CLRI) is a constituent unit of the Council of Scientific and Industrial
Research (CSIR), which is a Central Autonomous Body, under the Government of
India, and therefore, the provisions contained vide Rule 55A(ii) of the Rules
is applicable to the petitioners.
6. The learned counsel for the fifth respondents contend that they
are only disbursing agencies who are obliged to follow the directions of
respondents 1 to 4.
7. I have given careful consideration to the propelling and repelling
contentions of the parties.
8. The fact that Dearness Relief on pension paid to the petitioners,
for their service in the defence, was recovered by the respondents placing
reliance on Rule 55A(ii) of the Rules, is not disputed.
9. Rule 55A(ii) of the Rules is applicable only in the case of
exservicemen who are re-employed under the Central or State Government. It is
a settled law that Central Electro Chemical Research Institute (CECRI) and
Central Leather Research Institute (CLRI) which are a constituent unit of the
Council of Scientific and Industrial Research ( CSIR) is not coming within the
definition of “State” under Article 12 of the Constitution of India, vide
SABHAJIT TEWARY Vs. UNION OF INDIA reported in (1975) 1 SCC 485 = AIR 1975 SC
1329, which was also subsequently confirmed by the Seven Judges Bench of the
Apex Court in PRADEEP KUMAR BISWAS Vs. INDIAN INSTITUTE OF CHEMICAL BIOLOGY
reported in (2002) 5 SCC 111. I am, therefore, of the considered opinion that
Rule 55A(ii) of the Rules is not applicable to the petitioners.
10. That apart, while considering the claim of similarly placed
exservicemen with respect to the Dearness Relief on the pension for their
service in the Defence, the Apex Court by order dated 9.9.1996 in Review
Petition No.1002 of 1995 in Civil Appeal No.1809 of 1998, observed that the
Union of India should apply its mind to the question whether ex-servicemen
could be treated differently from others, in so far as the service conditions
of the ex-servicemen are said to be not attractive, and also desired that
Central Government should sympathetically consider the question of
non-realisation of amount already disbursed to the re-employed ex-servicemen.
11. In spite of the clear indication of the Apex Court in their order
dated 9.9.1996 in Review Petition No.1002 of 1995 in Civil Appeal No.1809 of
1998, I am unable to understand how the respondents have taken a decision on
30.11.2000 to the effect that Dearness Relief on pension already paid in cases
where pensioner or the family pensioner is no longer alive may be written off,
but in respect of all others, recovery is inescapable. As the decision dated
30.11.2000 appears to have been taken without reference to the order of the
Apex Court dated 9.9.1996 in Review Petition No.1002 of 1995 in Civil Appeal
No.1809 of 1998, suffice it to permit the petitioners to make further
representations bringing the observation of the Apex Court dated 9.9.1996 in
Review Petition No.1002 of 1995 in Civil Appeal No.1809 of 1998 to the notice
of the respondents within thirty days from the date of receipt of copy of this
order, and to direct the respondents to pass appropriate orders in the light
of the said order of the Apex Court within sixty days from the date of receipt
of the representations of the petitioners.
These writ petitions are ordered accordingly. No costs.
Consequently, W.M.P.Nos.11825 to 11835 of 1998 and W.P.M.P.Nos.24315 to 24324
of 2001 are closed.
Index : Yes Internet : Yes sasi To: 1. The Union of India rep. by the Controller General of Accounts Ministry of Finance Department of Expenditure Loknayak Bhavan, New Delhi. 2. The Chief Controller of Defence Accounts (Pension) Allahabad. 3. The Defence Pension Disbursing Office, Annexe Building, 506 Anna Salai, Chennai-18. 4. The Council of Scientific and Industrial Research, Anusandhan Bhavan, Rafi Marg, New Delhi-1. 5. The Senior Manager Canara Bank, Karaikudi-630 001. 6. The Senior Manager Syndicate Bank of India, Karaikudi. 7. The Senior Manager State Bank of India, Lalgudi. 8. The Senior Manager Canara Bank, Sathur.