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PETITIONER:

R.GANDHI

Vs.

RESPONDENT:

U.O.I. & ANR.

DATE OF JUDGMENT: 23/08/1999

BENCH:

K.Venkataswami, Syed Shah Mohammed Quadri

JUDGMENT:

SYED SHAH MOHAMMED QUADRI, J.

Leave is granted. This appeal, an off-shoot of the

judgment of this Court in Common Cause vs. Union of India

[1987 (1) SCC 142], arises from the judgment and order of a

Division Bench of the Madras High Court in Writ Petition

No.12381 of 1996 dated January 22, 1998. The appellant, who

is a Senior Advocate and a member of the Madras High Court

Bar, filed writ petition No.12381 of 1996, a public interest

litigation, in the High Court of Madras challenging

Memorandum No.34/2/86-P&PW(G) dated August 22, 1990 issued

by Department of Pension and Pensioner's Welfare and also

the letter dated September 26, 1990, applying the above said

Memorandum to the Department of Justice, and seeking

declaration that it does not apply to the Judges of the High

Courts and the Supreme Court of India. The substance of the

appellant's case before the High Court was that the Supreme

Court had issued direction that payment of reduced pension

on account of commutation of a part of the pension of a

Government employee should be only for a period of 15 years

"from the date of retirement", but the Union of India issued

impugned Memorandum changing it to "from the date of

commutation of pension". The Union of India, in its

counter-affidavit, stated that the Supreme Court clarified

the direction given in Common Cause (supra) in its

subsequent judgment that the period of 15 years be reckoned

from the date of commutation and not from the date of

retirement. Pursuant to the subsequent judgment of this

Court, Government of India revised its earlier Memorandum

No.34/2/86-P&PW dated March 5, 1987 and brought into force

the impugned Memorandum. A Division Bench of the Madras

High Court, taking note of the various judgments of this

Court, dismissed the writ petition by order dated January

22, 1998. It is against that judgment, this appeal is

preferred. Mr.R. Venkataraman, learned senior counsel for

the appellant, strenuously contended that once the

Government of India accepted in principle that the commuted

pension would be recovered for a period of 15 years from the

date of retirement and the same had culminated into a

direction of this Court, they could not have unilaterally

changed the same to reckon the period of 15 years from the

date of commutation of pension. The learned counsel has

submitted that under the Pension Rules, a pensioner can

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commute a part of his pension only within one year of the

date of retirement, therefore, the stand of the Government

that those who applied for and got their pension commuted

just on the verge of the completion of 15 years would be

able to claim their full pension after a few months of

deduction was without any basis. Mr. A.S. Nambiar,

learned senior counsel appearing for the respondents, has

argued that the period of 15 years is fixed on the basis

that the commuted pension would normally be recovered within

the said period; when the commutation of pension and the

date of retirement synchronize, no difficulty would arise

but if the pension is commuted long after the date of

retirement, the period of 15 years will be cut short when

counted from the date of retirement and in the result the

pensioners will get an undue and unintended benefit of the

order of the Supreme Court. In the case of Common Cause

(supra), it was represented before this Court in a Writ

Petition under Article 32 of the Constitution that on

commutation of pension the amount paid to the pensioner in

lump sum by the Government would be recovered from his

pension within a period of 12 years, there was, therefore,

no justification for the Government to pay reduced pension

for the rest of the life of the pensioner. This Court

desired that the Government might give a new look to the

application of Central Civil Service (Commutation of

Pension) Rules, 1981. The Government took decision in the

matter and communicated the same through the learned

Attorney General, which is in the following terms :

"(i) Recovery from pension payable every month towards

commuted value of pension will stop on the completion of 15

years from the date of retirement on superannuation or on

the pensioner completing the age of 70 years, whichever is

later.

(ii) The formulation will apply to all civilian

pensioners in whose case the age of retirement on

superannuation is 58 years and the personnel of Armed Forces

in whose case the retirement age varies in accordance with

the colour service prescribed for the rank (attaining the

age of 37/38 years or more).

(iii) Government have taken this decision as an act of

goodwill to pensioners and to extend to them some measure of

relief in the evening of their lives. It is sincerely

believed that there will be no further demand on this issue

and that the pensioners will accept the decision of the

Government without dissent or reservation.

(iv) The decision will take effect prospectively (from

April 1, 1986)."

In hoc the first point, this Court considered it

unnecessary to refer to the age of commuting pensioner for

restoration of full pension to him but on taking note of the

facts that the lump sum amount would fetch benefit like

interest and there is also an element of risk factor,

directed by its judgment dated December 9, 1986 that "on the

expiry of 15 years from the period of retirement" full

pension should be restored. In terms of the said judgment,

the Government issued Memorandum dated March 5, 1987. In

Welfare Association of Absorbed Central Government Employees

in Public Enterprises vs. Union of India & Ors. [1991 (2)

SCC 265], the question canvassed before this Court was

whether Central Government employees, who had taken benefit

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of the judgment in Common Cause (supra) and subsequently got

absorbed in Public Enterprises, were entitled to the benefit

of that judgment again on retirement from public

enterprises. While negativing their claim, it was observed,

"this court for the reasons indicated in the judgment came

to hold that on expiry of 15 years from the date of

commutation the entire pension revived." From this

observation it can be noticed that the judgment in Common

Cause (supra) was neither modified nor clarified. What all

can be inferred is that this Court in Welfare Association's

case (supra) understood the words "on the expiry of 15 years

from the period of retirement" in Common Cause (supra) as

"15 years from the date of commutation....". The judgment

in Welfare Association case (supra) was rendered on April

12, 1990. It is only pursuant to that judgment, the counter

affidavit recites, the Government revised its earlier Office

Memorandum dated March 5, 1987 and brought into force the

impugned Office Memorandum dated August 22, 1990. In Bharat

Petroleum Corporation Ltd. Ex-Employees Association & Ors.

vs Chairman & Managing Director Bharat Petroleum Corporation

Ltd., Bombay & Ors. [1993 (3) Scale 424], this Court

extended the benefit of the judgment in Common Cause (supra)

to the clerical employees of Bharat Petroleum. There also

the words "period of 15 years from the period of retirement"

were understood as "15 years from the date of commutation".

In Welfare Association of Absorbed Central Government

Employees in Public Enterprises & Ors. vs. Union of India

& Anr. [AIR 1996 SC 1201], the relief sought by the

pensioners in their petition under Article 32 of the

Constitution was : restoration of 1/3rd portion of the

fully commuted pension as per the decision of this Court in

Common Cause (supra). A three-Judge Bench, of which one of

us (Venkataswami,J.) was a member, reiterated the principles

applied in the aforementioned cases. Indeed, the date from

which 15 years pension was to be reckoned was not in issue

there. This Court strikes at arbitrary action of the State

and accordingly it did in Common Cause (supra), by

interdicting the arbitrary action of the Government in

paying the reduced pension as a result of commutation of

1/3rd pension for the rest of the life of the pensioners and

issued an equitable direction to restore the full pension

after 15 years "from the period of the retirement" to the

pensioners who had commuted 1/3rd of the pension. The

period of 15 years has been arrived at after taking into

consideration various factors mentioned above. It is

well-settled principle that the words in the judgment of the

Court cannot be interpreted as the words in a statute. By

the said direction this Court never intended to confer any

unfair or undue advantage on the pensioners. It only

ensured fairness in the treatment of pensioners at the hands

of the Government in respect of deduction of pension

consequent upon the commutation of the portion of the

pension. The decision in Common Cause (supra) has been

understood in all subsequent judgments of this Court as 15

years from the date of commutation and we are in respectful

agreement with the same. This neither prejudices the rights

of any of the parties nor confers any undue or unfair

advantage upon any party. From the above discussion, it

follows that the impugned Memorandum does not incorporate

any condition contrary to the judgment of this Court in

Common Cause (supra). The High Court was, therefore, right

in dismissing the writ petition. We find no illegality in

the order of the High Court. The appeal fails and it is

accordingly dismissed. No costs.

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