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Judgment
Honourable Mr. Justice K.S. Jhaveri
1.0 By way of this petition, the petitioners have challenged the judgement and order dated 25.04.2005 passed by the learned Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad directing the petitioners to pay the difference of gratuity amount to the respondent after calculating the same by merging 97% DA with his basic pay for the purpose of emoluments on the date of his retirement and giving the effect of OM No. 7/1/95-P & P.W. (F) M/O Personal, Public Grievance and Pension dated 14.07.1995 to the employees retired between 01.07.1993 and 31.03.1995 whereas the office memorandum is applicable only to the employees who retired only after 01.04.1995.
2.0 The facts of the case in brief are that the Department of Pension and Pensioners Welfare has issued Circular dated 14.07.1995 directing that 97% of pay shall be added to pay for calculating gratuity for those who were drawing basic pay upto Rs. 3500/-per month and retired on or after 01.04.1995. Thus by this Circular the benefits have been made available to only those employees who had retired on or after 01.04.1995. The respondent who was working as Divisional Accounts Officer Grade II under the Administrative Control of petitioner No.2 had retired from the Government service on reaching superannuation on 31.01.1995. He approached the learned Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad with a grievance that he has not been extended the benefits of 97% of DA with his salary for the payment of the gratuity at the time of his retirement. He prayed that the petitioners be directed to pay him the difference of gratuity with interest. The learned Tribunal, Ahmedabad allowed the application and directed the petitioners to pay the difference of gratuity to the respondent after calculating the same by merging 97% DA with his basic pay for the purpose of emoluments on the date of his retirement. It is further directed that this exercise shall be carried out within three months from the date of receipt of a copy of the order. Hence, this petition.
3.0. Learned Advocate appearing for the petitioners submitted that the learned Tribunal failed to appreciate that D.C.R.G is a financial favour extended to the retired employee and will be at the discretion of the Government and the rates so fixed. He submitted that in the present case, the Government of India has consciously fixed the rate of payment of D.C.R.G in O.M No. 7/2/93-P & P.W (E) dated 19.10.1993 in respect of the employees retired between 01.07.1993 and 31.03.1995 and O.M No. 7/1/95-P & P.W (E) dated 14.07.1995 in respect of the employees retired after 01.04.1995. He submitted that in the present case the respondent retired on 31.01.1995 and, therefore, he is not entitled for the said benefit.
4.0 Learned Advocate appearing for the petitioners submitted that the Tribunal erred in law while falling to note that the said fixation making a cut-off date in respect of the employees prior to 31.03.1995 and after 01.04.1995 was made by the Central Pay Commission which is an expert body.
5.0 Heard learned Advocates for the respective parties. The respondent has approached the Central Administrative Tribunal mainly on the decision of the full Bench of Bombay Tribunal in the case of Baburao Shankar Dhuri & Ors. reported in 1997-2001 AT decided on 21.09.2001. Admittedly OM dated 14.07.1995 of Department of Pension and Pensioner''s Welfare, Govt. of India, had extended the benefit of merger of 97% DA with the basic pay for the purpose of calculation of gratuity to those who retired after 01.04.1995. The Full Bench of this Tribunal in the case of Baburao Shankar Dhurio (supra) by holding that there was no nexus or rational consideration in fixing the cut off date of 1st April 1995, has struck down the said cut off date of 01.04.1995 and directed that the benefit of the merger of 97% of DA with the pay for the purpose of emolument for calculating death/retirement gratuity also be extended to those who retired between 01.07.1993 to 31.03.1993. The Full Bench decision was challenged before the Bombay High Court and the same has been upheld by the Bombay High Court. Since the respondent retired on 31.03.1995, he is entitled to claim the benefit of the merger of 97% DA with his basic pay for the calculation of death/retirement gratuity. Admittedly this has not been done by the respondents and, therefore, the Tribunal has held that the petitioners are required to be directed to pay the difference of gratuity by calculating the same after merging of 97% D.A with respondent''s basic pay for the purpose of emoluments on the date of his retirement.
6.0 In view of the above, the view taken by the Tribunal is just and proper. No interference is called for. The petition is devoid of merits and the same is dismissed accordingly. Rule is discharged. No order as to costs.