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TMI Blog2005 (11) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... Ors. and K. Arpana and Ors., are also the retired employees of the State of Andhra Pradesh. 4. The fact of the matter is as under:- The State of A.P. constituted a Pay Revision Commission (for short PRC ) for the purpose of considering the question of revision of scale of pay of the employees working with it as also merger of D.A., etc. On or about 21.7.1999, PRC recommended revised scale of pay notionally from 1.7.1998 with financial benefits from 1.4.1999. The Chief Minister of the State held a meeting with the representatives of the employees on 24.7.1999 wherein it was agreed: The cash benefit of the Revised Pay Scales will be allowed with the salary for the month of July, 1999 payable in August, 1999. The arrears of emoluments arising from the Revised Pay Scales for then months of April, May and June, 1999 will be credited to the General Provident Fund Accounts of the employees. 5. The State of Andhra Pradesh thereafter issued a Government Order dated 11.8.1999 being No. GO (P) No. 114 in terms whereof inter alia the mode and manner for implementing the recommendations of the PRC on pension and other terminal benefits were specified. The said government order is in two parts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n employee who retired on or after 1st July, 1998. Such option could also be exercised by the legal representative of a government employee who died while in service on or after the said date. Sub-rule (1) of Rule 9 contains a non-obstante clause saying that no rules made under the proviso to Article 309 of the Constitution of India shall, insofar as it is inconsistent with any of the provisions of these rules, have any effect. 9. The State also issued said GO(P) No. 156 on 16.9.1999 wherein it was categorically stated that the revised consolidated pension shall come into force with effect from 1.7.1998 with monetary benefits payable from 1.4.1999. Paragraph 5 of the said GO reads as under: 5. The employee retired between 01-07-1998 and 1-4-1999 are eligible to revision of their pay in the Revised Pay Scales, 1999 notionally as per the orders issued in G.O. 7th read above. As such, the pensions of these employees may be revised notionally as per the revised pay in Revised Pay Scales, 1999 and monetary benefit should be allowed from 01-04-1999. No difference on Retirement Gratuity and Commutation shall be allowed in the pension notionally fixed as above. 10. Yet again, another notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t dated 10.9.2003 the High Court dismissed the writ petition filed by the State whereas the writ petitions filed by the employees were allowed. Aggrieved the State is before us. 15. Mr. P.P. Rao and Mr. H.S. Guru Raja Rao, learned senior counsel appearing on behalf of the State of Andhra Pradesh, submitted that the reasonings of the High Court that the Government acted contrary to the agreement with the unions, and that paragraph 9 of GO No. 114 conferred a legal right on the employees, cannot be sustained. 16. Drawing our attention to the minutes of the meeting held between the Chief Minister of the State of Andhra Pradesh, it was submitted that from a perusal of clause (4) thereof it would be evident that the same relate to the persons who would be continuing in service even after 1.4.1999 and, not in regard to the persons who had retired and drawn their retiral benefits prior thereto. As regard the second reasoning of the High Court Mr. Rao would contend that paragraph 9 of the said GO which is not a part of the statutory rule has been completely misconstrued inasmuch as the same merely provides background facts. Drawing our attention to paragraph 16 of the said GO, it was conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght that had accrued there over , having regard to the fact that the pay is a condition of service. 20. Before adverting to the rival contentions of the parties, we may notice the findings of the Tribunal and the High Court respectively. Findings of the Tribunal are as under: (a) Paragraph Nos. 1 to 23 of GO No. 114 dated 11.8.1999 do not have any statutory force. (b) Rule 4 of the Statutory Rule does not confer any legal right upon the employees who retired between 1.7.1998 and 1.4.1999 to any monetary benefit, and in that view of the matter on their superannuation, they having not drawn their pay in the revised pay scales, were not entitled therefore in terms thereof. (c) As regards paragraph 9 of GO No. 114, the Tribunal opined that the same being an executive order, the original applicants did not become entitled to get the amount of gratuity fixed on notional pay contrary to statutory rules. (d) Paragraph 5 of GO No. 156 is not violative of Articles 14 and 16 of the Constitution of India. (e) It was noted that the legality or validity of Rule 4 of GO No. 114 fixing the cut-off date of 1.4.1999 was not questioned. Such cut-off date in any view of the matter is valid having been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.4.1999 retirement gratuity reckoned on the basis of the revised scale of pay as recommended by the PRC. 25. Mr. Lalit may be right in his submissions that the revised scale of pay notionally was fixed from 1.7.1998, but, concededly, cash benefit therefore was payable from 1.4.1999. Pension and gratuity connote two different things. In given situations, they may be payable under different statutes. Admittedly, the matter relating to payment of pension and gratuity is governed by the A.P. Revised Pension Rules, 1980. Rule 31 of the said rules defines emoluments to mean 'pay' as defined in Rule 9(21)(a)(i) of the Fundamental Rules, which a Government servant had been receiving immediately before his retirement or on the date of his death. Rule 46 provides for retirement gratuity, clause (1)(a)(A) whereof reads as under: 46. Retirement Gratuity : - (1)(a) A Government servant, who has completed five years' qualifying service and has become eligible for service gratuity or pension under Rule 45, shall on his retirement, be granted as retirement gratuity, - (A) In case he draws pay in the Revised Scales of Pay, 1993, a sum equal to - (i) 1/4th of emoluments for each comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplying the principles laid down in the explanation appended to Section 6 of the Hindu Succession Act, it was held that the plaintiff was also entitled to 1/6th share from 1/4th share of the coparcenary property, i.e., to say 1/24th. As on the date of partition, the plaintiff was to have an independent 1/4th share, the Court held that the plaintiff's share would be 1/4th + 1/24th in the property. 28. The case at hand indeed poses a different problem. Although like Gurupad Khandappa Magdum (supra) a notional revision of pay was to be considered as if the same took effect from 1.7.1998, but the rule went further and stated that actual monetary benefit thereof shall be given with effect from 1.4.1999. The rule, therefore, not only creates a legal fiction but also provides the limitations in operation thereof. If the effect of the legal fiction is extended in the manner suggested by Mr. Lalit, clause (4) of the rule will become otiose. In other words, all the consequences ordinarily flowing from a rule would be given effect to if the rule otherwise does not limit the operation thereof. If the rule itself provides a limitation on its operation, the consequences flowing from the lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of decisions, this Court opined that the decision of a State to limit the benefits only to employees who retire or died on or after a particular date upon calculating the financial implications thereof was neither irrational nor arbitrary. It was observed: 28... It is trite that, the final recommendations of the Pay Commission were not ipso facto binding on the Government, as the Government had to accept and implement the recommendations of the Pay Commission consistent with its financial position. This is precisely what the Government did. Such an action on the part of the Government can neither be characterised as irrational, nor as arbitrary so as to infringe Article 14 of the Constitution. 35. Mr. Lalit placed strong reliance on D.S. Nakara and Ors. v. Union of India (1983) ILLJ 104 SC for the proposition that the financial implication for implementation of the recommendations of PRC has not much relevance. Therein, the Constitution Bench came to the conclusion that the increased liability upon the said judgment is not too high to be unbearable or such as would have detracted the Government from covering the old pensioners under the scheme. 36. The decisions of this Court whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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