Service matter-providing clarification
Syed Sadiq Hussain
(Querist) 25 April 2016
This query is : Resolved
A peculiar case pertaining to Service Matter of a retired employee of judiciary department of Karnataka State.
The employee was placed under suspension and ordered to be retired from service compulsorily as a measure of penalty while he was under suspension. The competent authority had ordered for extending him full Pensionary benefits.
In the meantime, pay scales of Karnataka Government Employees were revised with effect from 01/04/2012 as per the Karnataka Civil Services (Revised Pay) Rules, 2012. Unlike the Central Civil Services (Revised Pay) Rules, 1997, it is the mandate of the aforesaid rules that; the pay of every such Government servant who was in service as on the date of coming into force the said rules shall be fixed in the revised scale from 01/04/2012 and no option is required to be exercised by the Government servants for being governed by the revised scales. The Interim Relief and the entire Dearness Allowance sanctioned up to 01/01/2012 was ordered to be merged in the pre-revised basic pay and the payment thereof was discontinued with effect from 01/04/2012.
The Principal District and Sessions Judge was the authority competent to fix the pay of retired employee in the revised scale and thereby to accord the sanction for the payment of Pensionary Benefits to him. Accordingly, said authority had fixed the pay of the said employee in the revised scale and sanctioned the Pensionary Benefits computed on the basis thereon. Thereby, the proposals for authorisation of payment thereof were sent to the Accountant General Karnataka.
The Manual of Standard Orders, Vol.-I issued by the C & A. G. of India envisages that;
“14.6 Pension payments must be authorised strictly in the terms stated and to the persons named in the sanction order. Accountant General have no authority to discuss or enter upon any question relating to succession to or division of, or claims to pension……………….”
Further, the Manual of Pension Verification, 2006 of the Accountant General Karnataka stipulates the condition precedent that;
"2.16 Scope of check of entries in Service Books. –
………… ………… It would be sufficient if the pay fixed in different scales of pay during the last one year preceding the date of retirement only is checked.
………… …………………… …………………………… …………… ……………… ……… ……… ……… ……… ……….. ……… …………
In superseding the above paragraph partially, it has been reiterated that the Headquarters’ office instruction of limiting the check of verification of pay of a Government servant in different scales of pay during the last year of service only. If on verification of such pay an error in pay fixation is observed, then notices to that effect has to be issued to the Department and the retired official concerned. If no communication is received either from the Department or the retired official, a portion of DCRG withheld for the purpose may be released duly ordering recovery of excess paid pay and allowances.[Authority: Section Order issued by PM Section in No. PM/GI/F 6(ii)/2004-05/378 dated 17-Nov- 2004.]
It has been clarified by the Comptroller and Auditor General of India that any wrong fixation of pay is noticed during Local Audit, even after retirement, has to be brought to the notice of the appropriate authority for taking remedial action.[Authority: Circular No. PM/ G.I/ F-6 (iii)/141 dated 12-Jul-1993]"
But, quite contrary to the above, the Accountant General, Karnataka had annulled the statutory sanction of Pensionary Benefits issued by the competent jurisdictional authority in favour of the retiree and unilaterally re-determined the quantum of the Pension, DCRG and CVP etc. on the basis of his pay in the pre-revised scale.
The retiree had filed a Writ Petition before the Hon'ble High Court, impleading the Distrit Judge (Pension Sanctioning Authority) and the Accountant General, Karnataka as Respondent-1 and Respondent-2 respectively. The WP came to be allowed by the Hon'ble Court with the following orders;
"Accordingly, the impugned order Annexure-F stands quashed. The 2nd respondent is directed to fix pension of the petitioner based on revised pay scale which came into effect from 1st April 2012 as per rules."
Thus, the validity and legal sanctity of the Pension Sanction order issued by the Respondent-1 (District and Sessions Judge)came to be upheld by the Hon'ble High Court (Single Bench).
But, both of the Respondents in the aforesaid WP had preferred the WA before the Hon'ble Division Bench of the High Court which was dismissed.
It is only after filing of Contempt Petition by the Writ Petitioner against the Respondent-2 in the WP and Appellant-2 in the WA, namely the Accountant General, Karnataka, the judgement of the Hon'ble Single Bench was complied with not latter than 30/07/2015, the date of affidavit of the accused contemnor, in its letter and spirit.
This elaborative explanation is made in the wake of filing the SLP before the Hon'ble Supreme Court in the first week of this year, jointly by both of the Respondents in WP and the Appellants in the WA, against the already implemented judgement and order of the Hon'ble High Court and having obtained an Interim Order from the Hon'ble Court, staying the operation thereof.
As for as my knowledge is concerned, the Principal District and Sessions Judge had no locus at all to prefer the WA before the Hon'ble Division Bench of High Court of Karnataka against such of the judgement of the Hon'ble Single Bench which had authenticated the validity and legal sanctity of the Pension Sanction accorded to the Writ Petitioner, since the said sanction order is construed to be merged in the judgement.
Thereby, the Accountant General, Karnataka had implemented the said sanction order by releasing the entire amounts as were sanctioned therein consequent upon quashing his unilateral order by the Hon'ble Court.
Therefore, this panel of the learned experts may be pleased to enlighten me about the conduct of the Petitioners in filing the SLP before the Hon'ble Apex Court.
I would make it clear that my case is fully covered by the judgement and order of the Hon'ble High Court rendered in the above case, except the difference that the Writ Petitioner in that case was placed under suspension whereas I had remained absent from duty without obtaining prior sanction therefor.
The Accountant General, Karnataka had given me a written information that the judgement and order in the above case have not reached the finality. As such, I will not be in a position to approach any forum, much less the jurisdictional court of law, in my case the Hon'ble Administrative Tribunal.
Please do clarify me as to whether it is legally permissible for me to approach directly to the Hon'ble Supreme Court.
Sudhir Kumar, Advocate
(Expert) 26 April 2016
the forum is free advisory.
but the experts do not have time to read such a long narrative.
P. Venu
(Expert) 26 April 2016
Please make the query brief.
Rajendra K Goyal
(Expert) 26 April 2016
Such case can not be filed directly in the Supreme Court.
Syed Sadiq Hussain
(Querist) 27 April 2016
Shri R.K Goyal ji,
Learned Expert,
I pay my hearty gratitude for your kind and prompt response to my query.
As stated earlier, the A.G. Karnataka has already implemented the judgement of Hon'ble HC Karnataka, which applies to my case with its fullest rigour. But, on 19/02/2016 he had obtained the Interim Order from the Hon'ble SC staying the operation thereof.
Kindly suggest me about the remedy available to me.
Syed Sadiq Hussain
(Querist) 27 April 2016
Shri Sudhir Kumar ji
And
Shri P. Venu ji,
I do agree with your advises. I thought that giving all details may make it convenient to the learned experts to render effective advise.
The brief of the query is that, a retired employee was granted pension to which he was actually entitled to under rules, by his departmental authority.
While issuing authorisation for payment thereof, the Accountant General had reduced the amount of pension by 50% of the amount sanctioned by his authority superior. Aggrieved by this reduction he had approached the HC. Whereby, the HC had quashed the action of the Accountant General. Thus, the sanction accorded by the departmental authority stood restored.
But, the said departmental authority along with the AG had preferred an appeal against the judgement of Writ Court, which came to be dismissed. Consequent thereto, the successful Writ Petitioner had file the Contempt Petition in the HC. As a result, the entire Pensionary Benefits, based on original sanction of the departmental authority were paid to the Petitioner before 31/07/2015.
The departmental authority and the AG had filed the SLP in the Hon'ble SC and obtained the stay on the operation of the judgement of the HC which is duly implemented in all respects.
Since, my case is fully covered by the judgement of HC, stayed by the Hon'ble SC, I request you to kindly guide me about the course of action to be resorted by me.
Syed Sadiq Hussain
(Querist) 27 April 2016
Shri Sudhir Kumar ji
And
Shri P. Venu ji,
I do agree with your advises. I thought that giving all details may make it convenient to the learned experts to render effective advise.
The brief of the query is that, a retired employee was granted pension to which he was actually entitled to under rules, by his departmental authority.
While issuing authorisation for payment thereof, the Accountant General had reduced the amount of pension by 50% of the amount sanctioned by his authority superior. Aggrieved by this reduction he had approached the HC. Whereby, the HC had quashed the action of the Accountant General. Thus, the sanction accorded by the departmental authority stood restored.
But, the said departmental authority along with the AG had preferred an appeal against the judgement of Writ Court, which came to be dismissed. Consequent thereto, the successful Writ Petitioner had file the Contempt Petition in the HC. As a result, the entire Pensionary Benefits, based on original sanction of the departmental authority were paid to the Petitioner before 31/07/2015.
The departmental authority and the AG had filed the SLP in the Hon'ble SC and obtained the stay on the operation of the judgement of the HC which is duly implemented in all respects.
Since, my case is fully covered by the judgement of HC, stayed by the Hon'ble SC, I request you to kindly guide me about the course of action to be resorted by me.
Sudhir Kumar, Advocate
(Expert) 28 April 2016
read.
you have rightly approached judicial forum.
if the deptt files SLP (within limitation period or delay condoned) then you have to defend at Supreme Court and you appear to have a strong case.
P. Venu
(Expert) 28 April 2016
From the facts stated, the SC has granted the Leave for the Petition; now it is a Civil Appeal (CA). This could be because some substantial question of law is involved. The question needs to be met on its merits.
Syed Sadiq Hussain
(Querist) 28 April 2016
Shri S. Kumar Ji
and
Shri P. Venu Ji
I pay my hearty thanks for the valuable advises. How about seeking the services of any of your learned experts. Please do consider extending your helping hands towards me so as to ensure that justice is done to me.
By the by, the merits of both the cases, in the case pending before the SC and the case of mine, involve the question law. The sactions of Pensionary Benefits, accorded by the departmental authories in both the cases are well within the provisions of rules. The objection of the Accountant General is highly untenable in the eye of law.
The most significant aspect of the case relied by me is that the sanction of the departmental authority is already acted upon by the Accountant General. Despite, the said sanctioning authority is now agitating against its own order which is not only approved by the HC but also become infructuous upon making payments of the full benfits as were sanctioned therein.
This was the reason I had termed the case, in my lengthy query, as a Peculiar natures case.
P. Venu
(Expert) 28 April 2016
You would have by this time received a copy of the SLP. What is the question of law raised therein.
Syed Sadiq Hussain
(Querist) 28 April 2016
In fact, I am not a party to that proceeding. But, my future is depended on the outcome of the said SLP. However, on enquiry the respondent therein has clarified that the basis of the SLP is the law declared by the SC in UoI vs. R.K. Chopra.
If it is as such, the said law renders its fullest support to our case rather than the case of petitioners therein. The Para-8 and Para-13 of the judgement in R.K. Chopra's case reveal that the same is decided purely on the basis of Note-3 of Rule 7 of the CCS (RP) Rules, 1997. But, no such provision exists in the KCS (RP) Rules, 2012.
Per contra, these rules specifically mandate that the pay of every such Government servant who was in service as on the date of their commencement shall be fixed in the revised scale. Thus, the case of P.C. Misra referred to therein would squarely apply to our cases.
Sudhir Kumar, Advocate
(Expert) 28 April 2016
it is funny and comical to hear that order in your favour has been challenged in SC and you are not party to the same.
P. Venu
(Expert) 29 April 2016
I am afraid you are vexing too much over an issue which is of no concern to you.
Syed Sadiq Hussain
(Querist) 29 April 2016
Sri Venu Ji,
This is what an aggrieved faces difficulty in convincing the lawyers about the ex facie injustice meted out to him, due to his inability to put up his case in an effective manner.
Sir, the authority competent to sanction me pension had fixed my pay in the revised scale of 2012 at Rs. 32000/- from 1.4.12 corresponding to pay of Rs. 16000/- in the old scale. Thereby, pension of Rs. 16000/- pm was sanctioned by the jurisdictional competent authority.
As I was absent from duty from the date of taking effect the revised scales till the date of retirement, the A.G. has authorised me the payment of pension at Rs. 8000/- as against Rs. 16000/- as sanctioned by the Pension Sanctioning Authority.
In the case being referred by me from the inception, the official was under suspension as on the date of coming into force the revised scales 2012 and was retired compulsorily thereafter, as a measure of penalty, while he was under suspension. His authority also had sanctioned the pension at Rs. 11885/- on the basis of revised pay. The A.G. had reduced his pension from Rs. 11885/- to Rs. 5719/- on the ground that he had not attended his duty even for a single day or after revision of pay scales.
As such, the HC had quashed the order of the A.G and directed to pay him full Pensionary Benefits in accordance with the Revised Pay Rules, 2012, which duly implemented before filing the SLP against it.
Sir, had the scales not been revised I would have been eligible to receive the pension of Rs. 8000/- (as now fixed by the A.G) PLUS an amount representing 152.75% of the basic pension. But, all allowance which were admissible on old pay and pension came to be discontinued from 01/04/2012 itself, I am getting the Pension of Rs. 8000/- PLUS DA @ 32.5%.
My Pension Sanctioning Authority has never altered, modified or withdrawn the order through which I was sanctioned the Pension at Rs. 1600/- pm from the date of my retirement by affording me opportunity of hearing.
In view of this, I would have succeeded in getting relief from the Administrative Tribunal if the operation of already implemented judgement was not stayed by the SC.
Kindly, reassess the merits of my case and do advise me whether I can approach the SC or to await its decision on the judgement and order of the HC which is impugned in the SLP being cited by me.
Syed Sadiq Hussain
(Querist) 29 April 2016
Respectable Shri Sudhir Kumar Ji,
It appears that the last paragraph of my shortened query was ignored by you, wherein I had made it manifestly clearer that;
"Since, my case is fully covered by the judgement of HC, stayed by the Hon'ble SC, I request you to kindly guide me about the course of action to be resorted by me."
Otherwise my query would have not been treated as such by you.
Please do consider, as to whether the Petitioners in the SLP might have supressed any material in order to getting stayed the duly implemented judgement and order of the HC.
This stay order may operate against the persons similarly situated rather than the sole respondent in the SLP being referred by me, since he has already been extended all benefits flowing from the judgement and order of HC, sought to be stayed at this belated stage.
So, kindly spare an iota of your precious time to decide what best course of action is open for me, since I am getting the Pension at Rs. 10200/- pm instead of Rs. 20400/- to which I am actually entitled as per rules.
Syed Sadiq Hussain
(Querist) 03 May 2016
I may, at least, be informed whether the Interim Order of the SC, staying the operation of judgement and order of HC impugned in the SLP I'm talking about, will not come in the way of my independent approach to the Administrative Tribunal against the order of Accountant General by which I'm aggrieved?
Kumar Doab
(Expert) 12 May 2016
The experts may also go thru another similar/interesting thread at:
http://www.lawyersclubindia.com/experts/Can-an-implemented-judgement-be-challenged--596971.asp#.VzQwiNJ97IU
Sudhir Kumar, Advocate
(Expert) 14 May 2016
another query at
http://www.lawyersclubindia.com/experts/Pensionary-Benefits-598346.asp
