Supreme Court · 2011

ABCDEFGH779accordingly hold that the appellants shall be entitled to receiverevised pension with effect from 1st April 2010, considering theprovisions of Clause 7 of the Order of 12th August 2011. TheOffice Memorandum of 24th December 2011 would not have anybinding effect so far as entitlement of the appellants to receiverevised pension from 1st April 2010 is concerned. [Para 16][788-E-H; 789-A]CIVIL APPELLATE JURISDICTION : Civil Appeal No.2681of 2022.From the Judgment and Order dated 27.01.2017 of the High Courtof Manipur at Imphal in Writ Appeal (C) No.55 of 2016.Ngangom Junior, Atul Kumar, Advs. for the Appellants.Sanjay R. Hegde, Sr. Adv., Pukhrambam Ramesh Kumar, TanayHegde, Karun Sharma, Ashutosh Dubey, Advs. for the Respondents.The following Judgment of the Court was delivered:JUDGMENTLeave granted.2. The appellants before us are eight retired Assistant Professorsand a College Librarian, also superannuated, from the State of Manipur.All of them had superannuated between 28th February 2006 and 31stJuly 2008. Subsequent to filing of the Petition for Special Leave to Appeal,eleven teaching staffs from different colleges in the same State havetaken out an application for impleadment as petitioners. They are allowedto intervene in this appeal.3. Decision was taken by the Government of India to revise thepay scales of teachers and equivalent cadres in the central universitiesand this was communicated by the Government of India to the UniversityGrants Commission by a letter of 31st December 2008. The revisedscales as per 6th Pay Commission recommendation were to beimplemented by the State Governments as well. In the State of Manipur,Manipur Services (Revised Pay) Rules, 2010 were framed in exerciseof power conferred under the proviso to Article 309 of the Constitutionof India on 5th May 2010. Such Rules were to cover those appointed toDR. Y. IBEHAIBI DEVI (D) BY LRS. v. THE STATE OF MANIPURREPRESENTED BY THE COMM’R GOVT. OF MANIPUR ABCDEFGH780SUPREME COURT REPORTS[2022] 14 S.C.R.Civil Services and posts in connection with the affairs of that State andwhich were under the rule making control of the Government of Manipur.Following the introduction of the Revised Pay Rules, certain modificationswere made in the Rules guiding pension and allied benefits of thosecovered by the civil services rules in that State. These modificationswere made by an Office Memorandum dated 5th May 2010 bearingno.9/3/2010-FD (PIC) (“O.M. of 5th May 2010” in short) introduced bythe Governor of Manipur. Though the source of power for making suchmodifications was not spelt out in the said memorandum, this was madein pursuance of the Government’s decision and fits the characteristic ofa Rule made under proviso to Article 309 or an executive order made interms of Article 166 of the Constitution of India.4. Clause 3.1 of the O.M. of 5th May 2010 stipulated:-“3.1. Save as otherwise mentioned in these orders, the revisedprovisions as per these orders shall apply toGovernment servants who retire/die in harness on or after 01/01/2006, notionally with effect from 01/01/2006 or from the data ofretirement whichever is later, as the case may he, with cashpayment/actual benefit from 01/04/2010. Separate orders havebeen issued in-respect of employees who retired/died before 01/01/2006.”(quoted verbatim from paperbook)5. On 3rd June 2011 by way of an order issued in terms of theproviso to Article 309 of the Constitution of India, certain revisions ofthe scales of pay of different categories of posts in Government Collegesunder the Department of Higher Education and Technical Education inthe State of Manipur were mandated. This Order was to come intoforce with effect from 1st June 2006 and arrears for the period from 1stNovember 2010 to 30th June 2011 were to be deposited in the respectiveG.P.F. accounts of the employees. Clause 6 of this Order stipulated:-“6. Rules relating to pension, family pension, gratuity andencashment of leave, ex-gratia compensation, provident fund, etc.Shall be as applicable to other State Government employees.”(quoted verbatim from paperbook) ABCDEFGH7816. On 12th August 2011, another Order [bearing no.7(7)/32009-HE(Misc.)Pt.(1)] was issued superseding the Order of 3rd June 2011 inrelation to different categories of college teachers (and equivalent grades)specifying the revised scale of pay. Clauses 3, 7 and 8 of this Order of12th August 2011 read:-“3. These orders shall come into force nationally with effect from01/01/2006 with monetary benefit from 01/11/2010 and actual casepayment from 01/07/2011. The arrears for the period from 01/11/2010 to 30/06/2011 shall be deposited into their respective G.P.FAccounts of the employees.However, for those employees who subscribe contribution underthe New Pension Scheme and retired/ expired. The arrears forthe period from 01/11/2010. To 30/06/2011 shall be released in2(two) equal instalments, first on 01/01/2012, and second on 01/07/2012.…….7. Rules relating to pension, family pension, gratuity andencashment of Leave salary/Leave of any kind, Ex-gratiaCompensation, Provident Fund and New Pension Scheme no-winforce etc. shall be as applicable to other state Governmentemployees.8. For those College Teachers/Equivalent Grads who retired/superannuated between 01-01-2006 and 31-10-2010, Pension shallbe calculated on the basis of notional pay and AGP in the revisedpay.”(quoted verbatim from the paperbook)7. On 24th December 2011 the State Government issued a furtherOffice Memorandum contemplating certain clarifications to thedepartment’s Order dated 12th August 2011. The areas of doubt and theclarifications given thereto, to the extent these are relevant for adjudicationof this appeal, as specified in the said Office Memorandum of 24thDecember 2011 were:-DR. Y. IBEHAIBI DEVI (D) BY LRS. v. THE STATE OF MANIPURREPRESENTED BY THE COMM’R GOVT. OF MANIPUR ABCDEFGH782SUPREME COURT REPORTS[2022] 14 S.C.R.“Sl. No. Points of doubts Clarification (1) (2) (3) Para 3 of the order under reference, relates to deposit of arrear pay and allowances for the period from 01.11.2010 to 30.06.2011 into GPF account actual cash payment from 01.07.2011 and release of arrear pay and allowance of certain categories of employees for the period from 01.11.2010 to 30.06.2011 in 2(two) equal installments. However Provisions for release of pension and other retirement benefits w.e.f. 01.11.2010 or 01.07.2011. In respect of those college teachers who retired during the period 01.01.2006 to 31.10.2010 and 01.11.2010 to 30.06.2011 were not mentioned in the order under reference. Decision of the Government on the point under reference is required. Further referring to para 8 of the order under reference, for those college teachers/equivalent grades who retired/ superannuated between 01.01.12006 to 31.10.2010, as to whether their retirement gratuity will be revised or not may also be clarified. Further, in respect of those college teachers/equivalent Grades who expired during the period. Under reference as to whether their family pension/DG will be revised or not, may also be clarified. It is clarified that pension/Family Pension/Retirement Gratuity/Death Gratuity/Commutation of Pension/Leave Encashment of those college teachers who retired/diet in harness during the period from 01.01.2006. to 30.06.2011 shall be calculated on the basis of the notional pay w.e.f. 01.01.2006 or from the date of retirement or death whichever is later or on the basis of the actual emolument drawn in the pre-revised pay scales whichever is more beneficial to the incumbent. The difference of amount between the pre revised rate and the revised ratene time payment, like, Retirement, Gratuity/Death Gratuity/Leave Encashment, if found more beneficial, shall also be paid. Actual benefit of increased Pension/Family Pension on account of revision shall be paid from 01.11.2010. In the case of commutation of Pension, benefit will be given on the basis of additional amount of pension.” (Emphasis added)8. The dispute involved in this appeal is as to whether the appellants,as retired staffs from different colleges, are to get the benefits of revised ABCDEFGH783pension from the date given in the Office Memorandum of 24thDecember 2011 or from 1st April 2010, the latter date being madeapplicable to those retired from various state services. The StateGovernment wanted to implement revised pension from 1st November2010. The appellants invoked the writ jurisdiction of the Manipur HighCourt, staking their claim for revised pension with effect from 1st April2010. The Single Judge allowed the writ petition by a judgment deliveredon 30th October 2015. It was, inter-alia, opined in that judgment:-“12. Accordingly, this Court is of the view that by the OfficeMemorandum dated 24.12.2011, as far as the claim of thepetitioners for grant of cash payment/actual benefits w.e.f. 1.4.2010as provided under the Office Memorandum dated 5.5.2010, cannotbe taken away and to that extent the aforesaid OfficeMemorandum dated 24.12.2011 cannot be enforced against thepetitioners. This Court has also noted that the aforesaid OfficeMemorandum dated 24.12.2011 is merely in the nature ofclarification without modifying the orders dated 3.6.2011 and12.8.2011 and also an executive order which cannot prevail uponthe Office Memorandum dated 5.5.2010 which has statutory forcewhich governs the retiral benefits and they form a part of theManipur Civil Services (Pension) Rules, 1977, Commutation ofPension under the Manipur Civil Services (Commutation ofPension) Rules, 2010 and the Manipur Services (ExtraordinaryPension) Rules, 1995.13. Accordingly, for the reasons discussed above, the presentwrit petition is allowed. The petitioners will be entitled to enjoythe actual benefit of the cash payment/actual payment as regardsthe pensioary benefits w.e.f. 1.4.2010 and other benefits asmentioned in the Office Memorandum dated 5.5.2010 and theyshall be also entitled to any other extension of benefits includingarrears in terms of the order dated 20.9.2011 or any subsequentorders that may have been passed.The petitioners who have rendered a long valuable service inthe field of education have volunteered to donate a sum of Rs.1000/- each from their entitlements for the benefit of the children of theChildren Home managed by the State Government, for whichgesture, this Court records its appreciation. The amount so donatedby the petitioners will be deposited in the account of the ChildrenDR. Y. IBEHAIBI DEVI (D) BY LRS. v. THE STATE OF MANIPURREPRESENTED BY THE COMM’R GOVT. OF MANIPUR ABCDEFGH784SUPREME COURT REPORTS[2022] 14 S.C.R.Home, Takyelpat, managed by the State Government to be utilisedfor the immediate and personal needs of the resident children ofthe Home.”(quoted verbatim from the paperbook)9. The State Government were successful in their appeal beforethe Division Bench of the High Court. The Division Bench, in the judgmentunder appeal, decided on 27th January 2017, held:-“[11] It be stated that pursuant to recommendation made byUniversity grants commission and also upon resolution being takenby Ministry of Human Resources, Govt. of India relating to revisionof pay, the Government of Manipur came with the revision of payof the college teachers vide notification dated 12.8.2011. The saidorder relating to revision of pay scale as per clause 3 of the saidnotification notionally came into effect from 1.1.2006 with monetarybenefit from 1.11.2010 and actual cash payment from 1.7.2011.The arrears for the period from 1.11.2010 to 30.6.2011 wasstipulated to be deposited in the GPF Accounts whereas OM dated5.5.10 was issued in the wake of revision of provisions relating toregulation of pension etc. on account of introduction of the ManipurServices (Revised Pay) Rules 2010. The clause 3.1 does stipulatethat provision of it would come into effect from 1.1.2006 andmonetary benefit was to be paid from 1.4.2010.Thus, it is evident that consequent upon revision of salary by virtueof Manipur Services (Revised Pay) Rules,2010 applicable only incase of State Govt. employees the said Office Memorandum dated5.5.10 dealing with the provision regulating revised pension wasrequired to be issued necessarily stipulating therein about monetarybenefit being paid from 1.4.2010. The provision relating toenforceability of the Office Memorandum and payment ofmonetary benefit on account of revision of pay was confined tothe Government employees who were being governed by theManipur Services (Revised Pay)Rules, 2010 whereas thenotification dated 12.8.2011 relating to revised scale of pay of thecollege teachers was issued by the State Govt. upon acceptanceof the recommendation of the UGC and Govt. of India andtherefore the University teachers would be governed by thestipulation made in that notification which speaks about themonetary benefits being given to them w.e.f. 1.11.2010. The said ABCDEFGH785stipulation has nothing to do with the matter relating to pension forthe reason that monetary benefit which was to be given from1.11.2010 may be related to persons in service and even the personswho got retired. However, if the proposition laid down by thelearned single Judge is accepted, a situation which would be quiteanomalous would come up whereby the teachers who are in servicewould be entitled to monetary benefit only w.e.f. 1.11.2010whereas the retired employees would be getting monetary benefitfrom 1.4.2010. It be reiterated that dispute is with respect to thedate from which teachers of the Universities/colleges will beentitled to have monetary benefits, which dispute never pertainsto any rules relating to the pension and thereby there happens tobe no applicability of any of the provisions of the OM dated5.5.2010 whereby provision relating to pension was revised.[12] Under the circumstances, the learned single Judge by resortingto the provisions under the Office Memorandum dt. 5.5.2010wrongly held that the petitioners would be entitled to monetarybenefit w.e.f. 1.4.2010 and thereby order dated 30.10.2015 ishereby set aside. Consequently, it is held that the petitioners areentitled to have monetary benefit w.e.f. 01.11.2010 and not w.e.f.1.4.2010. Accordingly, this appeal stands allowed.”10. Mr. Ngangom Junior, learned Advocate appearing for theappellants, has argued that his clients had migrated to the pension regimecreated for the State Government employees, which was guided by anOrder issued by the Governor in pursuance of the decision of the StateGovernment. As we have already discussed earlier in the judgment, powerto issue such Order can be traced to both Article 166 as also proviso toArticle 309 of the Constitution of India. It is not of much significanceunder which Article the Rules or Order was issued as in either case, thelegal instrument would be endowed with statutory strength. We havealready quoted Clause 3.1 of the amended Manipur Civil Services(Pension) Rules, 1977 in the earlier part of this judgment. It is not indispute that the appellants had retired after 1st June 2006. The mainargument of the appellants has been that since their pension entitlementwas covered by a Rule made under proviso to Article 309 of theConstitution of India, the Office Memorandum dated 24th December2011 could not alter the benefits that the appellants became entitled tounder the aforesaid statutory instrument. The stand of the StateDR. Y. IBEHAIBI DEVI (D) BY LRS. v. THE STATE OF MANIPURREPRESENTED BY THE COMM’R GOVT. OF MANIPUR ABCDEFGH786SUPREME COURT REPORTS[2022] 14 S.C.R.Government, represented by Mr. Sanjay R. Hegde, learned SeniorAdvocate, is that the revision of pay scales covers superannuated personsfrom different services under the State Government including those withinthe education department itself. His contention is that even after theappellants migrated to the 2010 Rules, they could not claim benefitdifferent from, and more than that the serving staffs of the departmentfrom which they originated was enjoying. It has been pointed out thatthe Order of 12th August 2011 superseded the Order of 3rd June 2011revising pay of college teachers and we have already reproduced Clause8 of this Order.11. It has been emphasised on behalf of the State of Manipur thatthe Order of 12th August 2011 is not under challenge. It has also beenargued on behalf of the State that the appellants who were employed inthe Technical and Higher Education Department of the Government ofManipur enjoy pay scales and pensions higher than that of Governmentemployees or those engaged in judicial services in the State of Manipur.On that count, it is urged that their benefits cannot be equated with thoseof the original employees appointed under the Manipur State GovernmentService Rules. The judgment under appeal is also sought to be defendedon the ground that members from different services under the Governmentof Manipur were receiving revised pay from different dates. It has alsobeen asserted that the Office Memorandum of 24th December 2011 isonly a clarificatory order and the original Order of 12th August 2011 wasnever assailed by the appellants. Various Cabinet decisions as regardsimplementation of revision of pay orders were brought to our notice butwe need not go into these Cabinet decisions in detail. In this appeal, weare concerned with the legality of the content of the Office Memorandumof 24th December 2011 to the extent that the same shifts the date ofgetting actual benefit of pension/ family pension on account of revisionfrom 1st April 2010 to 1st November 2010.12. The Order of 12th August 2011 has been issued in the name ofthe Governor of the State of Manipur. On the rationale we have explainedearlier, it can qualify for being an executive order in the terms of Article166 of the Constitution of India as also a Rule made under proviso toArticle 309 of the Constitution of India. But this Order of 12th August2011 does not lay down any specific stipulation for the retired collegeteachers or those holding equivalent grades barring clauses 7 and 8thereof, to which we have referred to earlier in this judgment. These ABCDEFGH787clauses also do not specify the date from which revised pension is to bepayable to the retirees. Clause 8 specifies the manner of computation ofpension for those who superannuated or retired between 1st January2006 and 31st October 2010. Clause 7 on the other hand relates to thepension Rules to be applicable as in the cases of other State Governmentemployees. Therefore, so far as the appellants are concerned, theirmigration into the regime of the 2010 Rules meant for State Governmentemployees and their entitlement to revised pension from a date applicableto the State Government employees has not been excluded by the Orderof 12th August 2011 made by the Governor of Manipur, either expresslyor by implication.13. So far as the State Government’s employees are concerned,the revisions of provisions regulating pension and ancillary conditionswere guided by O.M. of 5th May 2010. The subject covered by thismemorandum would appear from the following clauses thereof:-“No.9/3/2010-FD(PIC) : The undersigned is directed to say thatin pursuance of Government’s decision following the introductionof the Manipur Services (Revised-Pay) Rules, 2010, the Governorof Manipur is pleased to introduce the following modifications inthe rules regulating Pension, Retirement / Death / Service Gratuity/ Family pension / Disability Pension under the Manipur CivilServices (Pension) Rules, 1977 (hereafter referred to as PensionRules), Commutation of Pension under the Manipur Civil Services(Commutation of Pension) Rules, 2010 and the Manipur Services(Extraordinary Pension) Rules, 1995.2. These orders apply to State Government Employees governedby the Manipur Civil Services (Pension) Rules, 1977.”(quoted verbatim from paperbook)14. No distinction is made in Clause 3.1 of the O.M. of 5th May2010 between different categories of employees, on which distinctionMr. Hegde has emphasised in his arguments. Thus, once the appellantsmigrate into the Rules guiding other State Government employees, theappellants’ service origins become insignificant so far as application ofsubstantive part of the aforesaid revision of Pension Rules is concerned.As we have already discussed, Clause 8 of the Order dated 12th August2011 also does not contemplate special treatment for superannuated staffof higher educational institutions in the State of Manipur to correlateDR. Y. IBEHAIBI DEVI (D) BY LRS. v. THE STATE OF MANIPURREPRESENTED BY THE COMM’R GOVT. OF MANIPUR ABCDEFGH788SUPREME COURT REPORTS[2022] 14 S.C.R.them with the existing staff of their original service for the purpose ofdate of implementation of the revised pension. Thus, the quantum ofpension the appellants would receive vis-à-vis retirees from other servicesin the State of Manipur would not have impact on the point of law weare examining in this appeal. We are testing in this appeal if the Orderpassed on 24th December 2011 could postpone the date of entitlement ofrevised pension to 1st November 2010 for the appellants.15. The Office Memorandum of 24th December 2011 is in thenature of an administrative order. This Office Memorandum has notbeen made and executed in the name of the Governor. But this OfficeMemorandum seeks to take away substantive right of the appellantscemented under Government Order made on 12th August 2011, read incontinuation with the Orders of 5th May 2010 and 3rd June 2011. In ouropinion, the course of action sought to be adopted by the State isimpermissible. In terms of Clause 3.1 of the O.M. of 5th May 2010, theappellants have acquired a vested right to get revised pension from adate which is applicable to the retired State Government employees.The appellants have been placed in the said pension regime, and this hasbeen recognised by Clause 7 of the Order of 12th August 2011.16. We are unable to agree with the main reasoning of the DivisionBench that by giving the appellants the benefit of revised pension witheffect from 1st April 2010 an anomalous situation would arise as servingstaff(s) of higher educational institutions could be getting the benefit ofsuch revision from 1st November 2010. The State has made consciousdecision to delink the retirees from the service conditions guiding theserving staffs of the concerned institutions and placed them in theretirement rules meant for those in the Manipur State Service. In such asituation, we do not think the anomaly pointed out in the judgment underappeal could be the guiding factor for fixing the date of entitlement torevised pension benefits specified by the Service Rules. The OfficeMemorandum of 24th December 2011 though projected as an instrumentto clarify a subsisting anomaly to an Office Memorandum havingstatutory strength, in reality encroaches upon acquired or vested right ofthe retirees to get such benefit from 1st April 2010. Such “clarificatoryorder” cannot be permitted to override an Order having statutory strength.We accordingly hold that the appellants shall be entitled to receive revisedpension with effect from 1st April 2010, considering the provisions ofClause 7 of the Order of 12th August 2011. The Office Memorandum of ABCDEFGH78924th December 2011 would not have any binding effect so far asentitlement of the appellants to receive revised pension from 1st April2010 is concerned.17. Under the circumstances, the judgment under appeal is setaside. We restore and affirm the judgment of the Single Judge dated 30thOctober 2015.18. The appeal is accordingly allowed.19. Pending application(s), if any, shall stand disposed of.20. There shall be no order as to costs.Ankit GyanAppeal allowed.(Assisted by : Rahul Rathi, LCRA)DR. Y. IBEHAIBI DEVI (D) BY LRS. v. THE STATE OF MANIPURREPRESENTED BY THE COMM’R GOVT. OF MANIPUR