JUDGMENT
C. Mookerjee, C.J
1. The petitioner was one time an employee of Karachi Municipal Corporation and had thereafter retired from the services of the Corporation on an invalid pension of Rs. 51.5 paise per month. After partition of the country he had migrated and settled down in Maharashtra . The petition of the petitioner to the respondent for payment of his pension having been neglected, he approached this Court and this Court had suo moto issued Writ Petition No. 845 of 1987. After hearing both the petitioner who appeared in person and the learned Counsel for Union of India and the State of Maharashtra P.S. Shah and H. Suresh, JJ., by their order dated 6th October, 1987 held that the petitioner was entitled to pension payable at the rate drawn from Karachi Municipal Corporation for the period 5th November, 1949 to 5th December, 1958. The Union of India was directed to pay the pension for the said period within the stipulated time. Their Lordships in their judgement noticed that for the period subsequent to the aforesaid period, the petitioner was being paid pension.
2. The petitioner thereafter filed a fresh petition describing it as a Contempt petition because of the refusal of the Union of India to pay him stepped up minimum pension at the rate of Rs. 375/- with effect from 1st January, 1986. The said increased pension was being paid to him with effect from 1st July, 1987. Notice of this petition was served upon the respondent who have appeared through their Counsel.
3. We may shortly dispose of the preliminary objection raised on behalf of the respondent that in the instant case strictly the question of payment of stepped up pension with effect from 1st January, 1986 did not arise for the decision in the earlier Writ Petition No. 845 of 1987 and therefore the respondent cannot be held to be guilty of disobedience of the order passed in the earlier writ petition. We do not want to deny the petitioner relief if he is otherwise entitled to upon such a technical plea. The petition was filled in person. Secondly, the facts of this case amply justify invoking our writ jurisdiction treating the present petition to be a fresh one. Since the respondents have already appeared and filed their affidavit they will not be prejudiced by adopting the said course which is also in consonance with the principles of justice and fair play. We may note that the petitioner is aged nearly 88 years.
4. In our view, the respondents are not right in contending that the Office Memorandum dated 5th March, 1987 issued by the Government of India, Ministry of Personnel, Public Grievance and Pensions, Department of pension & Pensioners’ Welfare did not cover the petitioner’s claim for payment of pension at the enhanced rate from 1st January, 1986. Shri Desai learned Counsel for the respondent has drawn our attention to the first paragraph of the said Memorandum dated 5th March, 1987 which refers to the decision by the President of India in relation to pensions (superannuation/retiring/invalid/compensation) or family pension under C.C.S (Pension ) Rules, 1972/Family Pension under Central Civil Service (Extraordinary Pension) Rules. The paragraphs 5 and 6 of the said office Memorandum which are set out below clearly show that the benefits of the stepped up minimum pension have been extended to the various other classes of beneficiaries :
“5 These orders shall also apply to Armed Forces pensioners, civilian pensioners paid out of Defence Services Estimates, railway pensioners and pensioners of All India Services.
6. All pension disbursing authorities including Public Sector Banks handling disbursement of pension on behalf of the Central Government are hereby authorised to pay pension/family pension at the revised rates without any further authorisation from the authorities which had sanctioned pension/family pension originally. A suitable entry regarding stepping up of pension/family pension shall be recorded by the pension disbursing authorities in the Pension Payment Order. All Pension Disbursing Authorities are requested to ensure that the arrears accruing as a result of these orders for the period from 1-1-1986 to 8-2-1987 are disbursed to the respective pensioners at the earliest preferably by 31st March, 1987.”
5. In view of the said office Memorandum, all pension disbursing authorities are obliged to step up and extend the benefit of minimum pension of Rs. 75/- with effect from January 1986. In view of the petitioner’s success in the earlier writ petition, it is no longer open to the respondents to contend that the petitioner was being given pension ex gratia and not as a matter of right. We may note that the order of the Division Bench in the earlier writ petition was sought to be challenged in the Supreme Court and the Supreme Court had declined to admit the Special Leave petition filled by the Union of India. Therefore, we are bound to hold that the pension payable to the petitioner is no longer an act of grace but a matter of legal right upheld upto the Supreme Court. In fact, we fall to see how in case of petitioner alone right to receive such stepped up minimum pension at the rate of Rs. 375/- was fixed from a date later than 1st January, 1986. Same was against the office Memorandum which was binding on all pension disbursing authorities and also the said refusal to pay pension from the date fixed by the office Memorandum amounted to discrimination and arbitrary action on the part of the respondents.
6. In the above view, we dispose of this petition by directing the respondents to pay within a period of 10 weeks the total amount due at the enhanced rate of Rs. 375/- with effect from 1st January, 1986 to 1st July, 1987. The respondents will pay the costs of this petition assessed at Rs. 500/-.