Kallakuruchi Taluk Retired Official Association vs The Government of Tamil Nadu

N. Paul Vasanthakumar, J.—The prayer in this writ petition is to quash G.O.Ms. No. 810, dated 09.08.1989, in so far as the it directs the pensionary benefits of an employee retired / retiring on or after 01.06.1988 be computed by adding dearness allowances with pay at fixed percentage rates and consequently direct the respondent to extend the benefits conferred under G.O.Ms. Nos. 272 and 273, dated 15.06.1998 to the members of the petitioner''s association.

The necessary facts for the disposal of the writ petition are that the petitioner''s association is a registered Association with Registration No. 27/2001. It is mainly concerned with the welfare of retired government employees, local body employees, teaching and non teaching staff of educational institutions in and around Kallakuruchi Taluk. All the members of the petitioner''s association are retired from 01.06.1988 to 31.12.1995 and therefore, aggrieved due to not merging the amount of Dearness Pay while computing pensionary benefits when compared to those who retired prior to 31.05.1988. According to the petitioner, the Government of Tamil Nadu, pursuant to the recommendation of the Dearness Allowances Committee, had issued G.O.Ms. No. 115 (Fin), dated 06.02.1975, wherein employees retiring on or after 01.02.1975 were permitted to merge the Dearness Allowances drawn by them in full while computing pensionary benefits i.e., for both pension and gratuity.

The said position continued till 30.09.1978 and the persons who retired between 01.02.1975 to 31.03.1979 were benefitted. The persons who retired prior to 01.02.1975 filed O.A. Nos. 4265/92, 2645/94 and 2646/94 to direct the Government to extend the benefits of G.O.Ms. No. 115 (Fin), dated 06.02.1975 to persons who retired prior to 01.02.1975 also. The said O.As. were allowed. The Government filed SLP and the same was also dismissed by the Honourable Supreme Court. Thereafter, G.O.Ms. No. 273, dated 15.06.1998 was issued by the Government and extended the benefit of merger of full Dearness Allowances while computing pensionary benefits for those who retired prior to 01.02.1975. The Government also issued G.O.Ms. No. 371, dated 30.04.1986, and allowed persons who retired on or after 01.10.1987 the merger of full Dearness Allowances and additional Dearness Allowances drawn by them to be reckoned as pay to be taken into account for computing pensionary benefits. Since the persons who retired between 01.04.1979 to 30.09.1987 were not benefitted, they filed O.A. Nos. 2277/92 and 4953/92 and the Tribunal allowed the said O.A''s and extended the benefits to the above retired persons also those who retired prior to 01.10.1987. The Government filed SLP against the said order also and the same was dismissed. Pursuant to that G.O. Ms. No. 272, dated 15.06.1998, was issued and extended the merger of full Dearness allowances to those who retired during 01.04.1979 to 30.09.1987. Thus, it is clear that all the persons who retired prior to 31.05.1988 got the benefit of inclusion of full dearness allowances as pay for computing pensionary benefits.

The Vth pay commission recommended pay revision, pursuant to which revised pay was given to the persons inservice from 01.06.1988 by G.O.Ms. No. 810, dated 09.08.1989. In the said G.O., it is stated that an employee retired / retiring on or after 01.06.1988 be computed by adding Dearness Pay with pay at the following percentage.

Pay Range Rates of Dearness Pay i) Up to Rs.3,500/- 13% of pay ii) above Rs.3,500/- but 9% of pay subject to a not exceeding Rs.6,000/- minimum of Rs.455 iii) above Rs.6,500/- 8% of pay subject to minimum of Rs.540/-

Hence, the slab system was introduced for computation of pension, depending on the pay scale by which the benefit given to the pensioners are taken away which causes financial loss to the employee retiring on or after 01.06.1988. The petitioner''s association having aggrieved, submitted representation to the Government on 11.05.2000 and 20.12.2000. In spite of the same, no action was taken and therefore, this O.A. is filed on the ground that all the petitioners who retire till 31.05.1988 are entitled to count their entire Dearness Allowance for the purpose of calculation of pension and gratuity. Whereas, no reason is given for the denial of the benefits to the members of the petitioner''s association who retired between 01.06.1988 till 31.12.1995 and the action of the respondent in discriminating the petitioners from the other pensioners is illegal, arbitrary and violation of Articles 14 and 16 of the Constitution of India. There is no rationale or logic in fixing the cut off date as 01.06.1988 and that the petitioners form a single class and the persons who retire from 01.06.1988 are affected because under the impugned G.O. Only 13% of the basic pay was taken for calculation of both pension and gratuity.

The learned Counsel for the petitioner also submits that the action of the respondent is contrary to pension rule 13 of the Tamil Nadu Pension Rules, 1978, which says pension shall be fixed on the basis of 10 months average pay last drawn by a Government Servant. The learned Counsel for the petitioner therefore submitted that the action of the respondent in not taking into account of the entire Dearness Allowance for the purpose of pension is illegal and contrary to the judgments of the State Administrative Tribunal, as confirmed by the Honourable Supreme Court and the Tamil Nadu Pension Rules.

The learned Government Advocate relying the statement contained in the counter affidavit, submitted that since the pay commission no where recommends merger of Dearness Allowance to the pensioners, Government has decided not to give the benefits to the pensioners and there is no illegality and infirmity in the impugned order.

I have considered the submissions made by the learned Counsel for the petitioner as well as the learned Counsel for the respondent. In fact, the Government appointed a committee called Dearness Allowance committee for making recommendation and to fix Dearness Allowance for the pensioners. The said committee submitted its report and the same is accepted and implemented in G.O.Ms. No. 115 (Fin), dated 06.02.1975. In the said Government Order, it is clearly stated that the Government''s intention is that all the Government servants retiring on or after 01.02.1975 should derive the full benefit of the merger of the existing Dearness Allowance as Dearness Pay. Government accordingly direct that the Dearness Allowance actually drawn by Government servant retiring on or after 01.02.1975 during the ten months prior to their date of retirement may be treated as pay for calculating their pension. When the said benefit was restricted subsequently repeatedly, the State Administrative Tribunal interfered and directed to extend the benefit to all the retired persons and the same orders are also implemented by G.O.Ms. No. 272, dated 15.06.1998 and G.O.Ms. No. 273, Finance (Pension) Department, dated 15.06.1998. Earlier also Government passed G.O.Ms. No. 371 Finance (Pension) Department, dated 30.04.1986 and the same was directed to be implemented by this Court in W.P. No. 26741 of 2005, dated 23.02.2006.

It is well settled in law that Dearness Allowance is fixed based on the price index and it is payable not only to persons in service and also to the pensioners. Therefore, the Dearness Allowance can be treated as pay for the purpose of pension also. The reasoning given by the Administrative Tribunal in O.A. Nos. 227/1992 and 4953/1992, as confirmed by the Honourable Supreme Court and implemented by the Government equally applies to the facts of this case also. There cannot be any discrimination between the pensioners as ordered by the State Administrative Tribunal taking into account of the Dearness Allowance for the purpose of pension and date of retirement cannot be treated as valid classification for denying the benefit. The action of the respondent in not extending benefits to the members of the petitioner''s association is discriminatory and it is held by the Honourable Supreme Court in the Judgment reported in AIR 1983 SCC 130, D.S. Nakara and Other petitioners Vs. Union of India, in paragraph 65. Further in Paragraphs 25 to 33, the Honourable Supreme Court stressed the need for paying proper pension to retired employees. Following the said reasoning given by the Tribunal, the Division Bench of this Court, as well as the Honourable Supreme Court, the impugned order is unsustainable and the respondent are bound to extend the benefits to the members of the petitioner''s association also the benefit contained in G.O.Ms. No. 272 and 273, dated 15.06.1998.

The writ petition is allowed and direction is issued to the respondent to revise the pensionary benefits to the petitioner''s association in accordance with G.O.Ms. No. 272 and 273, dated 15.06.1998 and pay the arrears with in eight weeks from the date of receipt of a copy of this order.

With the above terms, the writ petition is allowed. No costs.