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Judgment
N. Kotiswar Singh, J.—Heard Mr. N. Ibotombi, learned senior counsel assisted by Mr. A. Rommel, learned counsel for the petitioners and Mr. Y. Ashang, learned Government Advocate for the State respondents.
In this writ petition, the petitioners 9 (nine) in number, who were all working in various Government colleges, have approached this Court for a direction to allow them to enjoy the pensionary benefits as enjoyed by other government employees of the State of Manipur.
The relevant facts may be stated as follows:--
"All the petitioners except the petitioner No. 9 retired from service from the posts of Associate Professor which they were holding on substantive capacity on various dates during 28.8.2006 to 30.9.2008. The petitioner No. 9 also retired while he was serving as College Librarian of D.M. College of Arts on 31.7.2009. The commonality of their interest is based on the UGC pay scale enjoyed by them as adopted by the State of Manipur and also as regards the claim for pensionary benefits. It is the case of the petitioners that pursuant to revision of pay scale of teachers and equivalent cadre in the Universities and colleges by the UGC in 2008 following revision of pay scale of Central Government employees, the State of Manipur on the demand of the teachers/lecturers of various categories serving in various Government Colleges decided to implement the UGC pay scale with certain modifications. In this writ petition, we are not very much concerned with the details of the pay scales but only with respect to the consequential retiral benefits. The Government of Manipur, considering the demand of the teachers and other employees of the Government Colleges, issued an order on 3.6.2011 (Annexure-A/9) by which the pay scale of various teachers and non-teaching staff serving in the Government colleges were revised. In the said order dated 3.6.2011, it was mentioned that these orders shall come into force notionally w.e.f. 01.01.2006 with cash payment from 01/07/2011 and the arrears for the period from 01.11.2010 to 30.6.2011 shall be deposited into the respective GPF accounts of the employees. Further, it was also provided that Rules relating to pension, family pension, gratuity and encashment of leave, ex-gratia compensation, provident fund, etc. shall be as applicable to other State Government employees. The relevant paragraphs are reproduced hereinbelow:--
"2. These orders shall come into force notionally w.e.f. 01.01.2006 with cash payment from 01/07/2011. The arrears for the period from 01.11.2010 to 30.6.2011 shall be deposited into the respective GPF accounts of the employees.
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Rules relating to pension, family pension, gratuity and encashment of leave, ex-gratia compensation, provident fund, etc. shall be as applicable to other State Government employees."
As there were some difference of opinion as regards the nomenclature and the benefits to be given, an understanding between the representatives of the teachers and the State Government was reached and signed an agreement on 10.8.2011, on the basis of which a fresh order was issued on 12.8.2011 by changing the nomenclatures of the various grades of teachers. However, the earlier conditions more or less remained same including the ones which have been quoted above with slight modifications as mentioned below.
"3. These orders shall come into force notionally w.e.f. 01.01.2006 with monetary benefit from 01.11.2010 and actual cash payment from 01/07/2011. The arrears for the period from 01.11.2010 to 30.6.2011 shall be deposited into their respective GPF Accounts of the employees.
However, for those employees who subscribe contribution under the New Pension Scheme and retired/expired, the arrears for the period from 01.11.2010 to 30.06.2011 shall be released in 2 (two) equal instalments, first on 01.01.2012, and second on 01.07.2012.
....
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Rules relating to pension, family pension, gratuity and encashment of Leave salary/Leave of any kind, Ex-gratia Compensation, Provident Fund and New Pension Scheme now in force etc. shall be as applicable to other State Government employees."
It may be noted that as regards pensionary benefits, there is no change in the subsequent order dated 12.08.2011.
In this writ petition, as mentioned above, we are not concerned with the revision of pay as such but only with the pensionary benefits. Mr. N. Ibotombi, learned senior counsel submits that the petitioners have no grievance at all with any of the provisions of the order dated 12.8.2011 which revised the pay scale as well as granting various benefits including pensionary benefits as mentioned therein. However, the problem arose at the time getting retiral benefits. All the petitioners as mentioned above, retired between the period 28-2-2006 to 31-7-2009. According to the petitioners, the petitioners are entitled to all the retiral benefits as mentioned under the Office Memorandum dated 5.5.2010 issued by the State Government regulating the grant of pensionary benefits. However, when the issue arose for giving retirement benefits, the authorities issued the impugned clarificatory order dated 24.12.2011 depriving certain retiral benefits which are mentioned in the aforesaid Office Memorandum dated 5.5.2010. According to the petitioners, in terms of the aforesaid Office Memorandum dated 5.5.2010, they are entitled to the cash payment/actual benefits from 1.4.2010 as mentioned in para No. 3.1 of the Office Memorandum dated 5.5.2010 and read with subsequent changes made by the order dated 20.9.2011. Para 3.1 is reproduced hereinbelow:--
"3.1. Save as otherwise mentioned in these orders, the revised provisions as per these orders shall apply to Government servants who retire/die in harness on or after 01.01.2006, notionally with effect from 01.01.2006 or from the date of retirement whichever is later, as the case may be, with cash payment/actual benefit from 01.04.2010. Separate orders have been issued in respect of employees who retired/died before 01.01.2006."
According to the petitioners, the petitioner are entitled to the aforesaid benefits in terms of the Office Memorandum dated 5.5.2010, in view of the specific stipulation in the order for revision of pay dated 12th August, 2011 in which it has been clearly mentioned that rules relating to family pension, gratuity and encashment of leave, ex-gratia compensation, provident fund and new Pension Scheme now in force etc. as applicable to other State Government employees shall be applicable to the teachers/non-teaching staff whose pay scales are fixed under the said order dated 12.8.2011. The petitioners state that since the aforesaid order of revision of pay scale dated 12.8.2011 specifically mentioned that as regards pensionary benefits, same will be as enjoyed by other employees of the State Government, and since the Office Memorandum dated 5.5.2010 specifically mentioned the effective dates of the benefits to be enjoyed by the employees of the State Government, the same should be also made applicable to the petitioners, which, however, has not been done by the authorities by issuing a clarification in the Office Memorandum dated 24.12.2011. As per the aforesaid Office Memorandum dated 5.5.2010, the petitioners are entitled to cash payment/actual benefits w.e.f. 1.4.2010. However, this benefit is sought to be deprived by issuing the aforesaid clarificatory Office Memorandum dated 24.12.2011 in which it has been provided that the actual benefit of increased pension/family pension on account of revision shall be paid from 1.11.2010 and not from 1.4.2010 as provided in the Office Memorandum dated 5.5.2010. Mr. N. Ibotombi, learned senior counsel submits that this clarification order which was issued by way of executive order is contrary to the Office Memorandum dated 5.5.2010 which has statutory force, being part of the Pension Rules framed under Article 309 of the Constitution of India. It has been submitted that the clarificatory Office Memorandum dated 24.12.2011 is liable to be interfered with inasmuch as it is not only merely an executive order which cannot override the specific provisions under the Office Memorandum dated 5.5.2010 having statutory force, but is also contrary to the State Government''s own earlier order dated 12.8.2011 to the effect that the retiral benefits will be as applicable to other State Government employees. Therefore, the petitioners have submitted that denial of the actual pensionary benefits w.e.f. 1.4.2010 on the basis of the aforesaid clarificatory Office Memorandum is not permissible and accordingly, the aforesaid clarificatory Office Memorandum 24.12.2011 is liable to be interfered with.
In this connection, Mr. N. Ibotombi, learned senior counsel relied on the decision of the Hon''ble Supreme Court rendered in the case of the The Rajasthan State Industrial Development and Investment Corporation Vs. Subhash Sindhi Cooperative Housing Society Jaipur and Others, wherein it has been clearly held by the Hon''ble Supreme Court that executive instructions which have no statutory force cannot override the law. It has been submitted that in the present case, since the aforesaid impugned Office Memorandum dated 24.12.2011 is merely an executive order, which is contrary to the Office Memorandum dated 5.5.2010 which has statutory force, the said OM dated 24.12.2011 cannot be enforced.
As opposed to this contention raised by the petitioners, Mr. Y. Ashang, learned Government Advocate has submitted that the service conditions of the petitioners are governed by a different set of rules. According to him, the petitioners were serving in the Government colleges whose pay structures were governed by the UGC scheme as adopted by the State of Manipur including pension. Mr. Y. Ashang, learned Government Advocate submits that the orders dated 3.6.2011 and 12.8.2011 issued by the State Government in respect of different categories of Colleges teachers/equivalent Grades in the Government colleges, in terms of the UGC scheme which also deals with the pension. According to him, as the UGC scheme is a comprehensive and composite one which not only deals with the revision of pay scale but also the pensionary benefits. In this regard, Mr. Y. Ashang, learned Government Advocate has also submitted that the aforesaid clarificatory Office Memorandum dated 24.12.2011 was issued in consonance with the cabinet decision taken on 10.8.2011. Since the petitioners and other teachers are enjoying the UGC pay scale under the UGC norms and are also enjoying the pensionary benefits under the UGC norms, the application of the State norm as sought by the petitioners does not arise. Mr. Y. Ashang, learned Government Advocate has also submitted that Rule 2(h) of the CCS(Pension) Rules, 1972 clearly provides that the CCS (Pension) Rules will not be applicable in respect of other persons whose service are regulated by any other provision. According to him, in the present case, since the terms and conditions of the service of the petitioners are governed by the UGC norms, their pensionary benefits are also to be governed as provided under the UGC norms and not the CCS(Pension) Rules. It has been further submitted that in any event, fixing the cutoff date of enjoyment of any benefit including the pensionary benefit is within the exclusive domain of the executive and unless it is shown to be arbitrary or malafide or in contravention of Article 14 of the Constitution of India, the same ought not be interfered with by this Court. It has been submitted that in the present case, there is no arbitrariness as the petitioners belong to a particular category of teachers whose service conditions are governed by the UGC norms and different from other Government employees, the question of discrimination vis-�-vis other Government employees of the State Government does not arise. Mr. Ashang, learned Government Advocate also further submitted that these orders dated 3.6.2011 and 24.12.2011 were issued by the executive and do not override the provisions of the Pension Rules which has statutory force as Rule 2(h) of the Pension Rules has mentioned that these pension rules will not be applicable in respect of those persons who are governed by a separate rules, the question of grant of benefits under the Office Memorandum dated 5.5.2010 which is a part of the Pension Rules does not arise. In this connection, Mr. Ashang has also relied on the same judgment relied upon by the petitioners in Rajasthan State Industrial Development and Investment Corporation (supra), relied upon by the petitioner.
Mr. N. Ibotombi, learned senior counsel for the petitioners on the other hand has submitted that the UGC scheme clearly mentions that pensionary benefits will be governed in respect of those teachers and other cadres in the UGC maintained institutions. But in the present case, the petitioners are not employed in UGC maintained institutions but by the State Government and their cases will be governed by the Para No. 8 (p) of the Scheme which provides that the scheme may be extended to Universities, Colleges and other higher educational institutions coming under the purview of State legislatures, provided State Governments wish to adopt and implement the Scheme subject to the terms and conditions mentioned therein. According to Mr. N. Ibotombi, learned senior counsel, as far as the benefits are concerned, it will be subject to what the State authorities would provide and in the present case, the State authorities while revising the pay-scales have already clearly mentioned in their orders that rules relating to pension, family pension, gratuity and encashment of leave, etc. shall be as applicable to other employees of the State Government. Further, Mr. N. Ibotombi, learned senior counsel has also submitted that the submission made by Mr. Y. Ashang, learned Government Advocate is without any basis as nothing has been mentioned in the pleadings that the pensionary benefits of the petitioners will be governed by the UGC Regulations and not by the State Government rules governing the grant of pension. This, however, has been objected to by Mr. Y. Ashang, learned Government Advocate by stating that it has been specifically mentioned in para No. 8 of the additional affidavit that pension calculation and other retirement benefits etc. are made on the basis of notional pay and AGP in the revised pay under the UGC scheme.
Heard the learned counsel for the parties as well as perused the records.
The bone of contention of the contesting parties relates to grant of pensionary benefits. While the petitioners claim that they are entitled to such benefits as enjoyed by the State Government employees, it is the stand of the State Government that since the petitioners have enjoyed special pay under the UGC scheme, a separate provision has been made for them as clarified in the Office Memorandum dated 24.12.2011.
It is seen that the terms and conditions relating to fixation of pay scales of the different categories of employees in the Government colleges came to be governed by the aforesaid orders dated 3.6.2011 and 12.8.2011. By the aforesaid orders, the Government partially adopted the pay scale of UGC as recommended by the UGC. As regards the application and actual benefits in the State, certain modifications have been made in these orders which are different from the UGC Scheme. As mentioned above, it has been clearly mentioned in these orders that these orders of pay revision will come into force notionally from 01.01.2006 and cash payment from 01/07/2011 and the arrears for the period from 01.11.2010 to 30.6.2011 shall be deposited into the respective GPF Accounts of the employees. Thus, while the pay scales as per UGC norms were granted, actual benefits were either deferred or modified by directing crediting in the GPF account of the Government employees. Here, we are not very much concerned with the revision of pay scale and how they are enjoyed by the teachers/non-teaching staff as part of their salary while serving. We are concerned, in this case, with the pensionary benefits which is after they have retired from service. The aforesaid State Government orders have made it very clear, as quoted above, that rules relating to pension, family pension, gratuity and encashment of leave, ex-gratia compensation, provident fund, etc. shall be as applicable to other State Government employees. This specific provision in the revision of pay scale orders makes it clear that as far as the pensionary benefits are concerned, the same shall be governed by the pension rules as applicable in respect of other Government employees and no separate structure or scheme with reference to family pension as regards the College Lecturers/equivalent posts have been contemplated. Rather the Government intended that as far as the pensionary benefits of these categories of persons, who have been granted UGC pay scale is concerned, they shall continue to enjoy the same benefits as enjoyed by other government employees which is very clear from the aforesaid conditions mentioned in the office orders and quoted above. These orders dated 3.6.2011 and 12.8.2011 have not been modified as regards the pensionary benefits by any subsequent order. In that view of the matter, this Court would accept the submission of the petitioners that pensionary benefits will be governed by the rules and regulations framed by the State Government from time to time governing the grant of pension. It is seen that the Office Memorandum 5.5.2010 governs the grant of pension in respect of various employees of the State Government. The only difference of opinion is as regards the applicability of the same to the petitioners. It is the stand of the State Government that the same will not be applicable to the petitioner by referring to UGC scales of pay, which has been done by issuing the clarificatory Office Memorandum dated 24.12.2011. This contention of the State Government cannot however, accepted as the UGC Scheme had not been fully adopted by the State Government, but only partially, that too with modification. The adopting orders also clearly mention that as far as the pensionary benefits are concerned, these teachers will get the same benefits as that of other Government employees.
It is the case of the petitioners that the clarification as sought cannot be sustained inasmuch as there is nothing to be clarified as it is already mentioned in the Office Memorandum dated 5.5.2010 that actual benefits will be granted w.e.f. 1.4.2010 and there is no reason to deviate from the same merely on the ground that the petitioners have been granted UGC pay scale, as nothing as mentioned in the orders dated 3.6.2011 and 28.11.2011 that the pensionary benefits as regards the teachers/employees of the Government colleges may be varied. This Court finds force with the submission of the petitioners. In fact, the aforesaid orders clearly stipulate that the pensionary benefits will be as applicable to the other State Government employees. This Court is also of the view that even though the government may issue any order to clarify any doubts, such clarification cannot take away any or vary right which have been specifically granted. The question, therefore, arises is whether by issuing the clarificatory order dated 24.11.2011, any established right of the petitioners have been taken away.
The orders dated 3.6.2011 and 12.8.2011 issued by the State Government by which pay scales in respect of different categories of colleges teachers and other equivalent grades of the Government colleges including the petitioners were revised, specifically stipulate that the rules relating to pension, family pension, gratuity and encashment of Leave salary/Leave of any kind, Ex-gratia compensation, Provident Fund and New Pension Scheme now in force etc. shall be as applicable to other State government employees. If that is so, the petitioners would be entitled to such benefits as given to other State Government employees as far as the retiral benefits are concerned. Reference made to the other parts of orders dated 3.6.2011 and 28.11.2011 that these shall come into force notionally w.e.f. 1.1.2006 with monetary benefits from 01.11.2010 and actual cash payment from 01.7.2011 and also the arrears for the period from 01.11.2010 to 30.6.2011 shall be deposited into their respective GPF accounts of the employees, etc. relates to how the pay is to be granted and regulated while the employees are serving and it does not refer as to how the retiral benefits have to be regulated after they have retired from service. Retiral benefits shall be regulated in terms of the subsequent provisions mentioned in these orders which have been already quoted above that it will be as applicable to other State Government employees. In view of the above, the only consequential effect of these orders dated 3.6.2011 and 12.8.2011 will be that the rules applicable to other State Government employees as regards pensionary benefits as mentioned in the Office Memorandum dated 5.5.2010 will also be equally applicable to the petitioners. In the said Office Memorandum dated 5.5.2010, it has been already specifically mentioned that the cash payment/actual benefit will be granted w.e.f. 1.4.2010 as mentioned in Para No. 3.1 of the said Office Memorandum dated 5.5.2010. Therefore, this Court is of the view that it will be impermissible for the State authorities to make a departure from the aforesaid Office Memorandum by materially changing the benefits for the petitioners to their disadvantage. A perusal of the clarificatory Office Memorandum, which has been challenged in this writ petition, shows that the actual benefit of increased pension/family pension on account of revision shall be paid from 01.11.2010 which is not in conformity with the said Office Memorandum dated 5.5.2010. Any attempt to make a reference to the orders dated 3.6.2011 and 12.8.2011 for holding that the actual benefit of increased pension/family pension on account of revision shall be paid from 1.11.2010 will be impermissible as these orders have already specifically stated that rules relating to pension, family pension, gratuity and encashment of Leave salary/Leave of any kind, Ex-gratia Compensation, Provident Fund and New Pension Scheme now in force etc. shall be as applicable to other State Government employees. Reference to grant of monetary benefits from 1.11.2010 as mentioned in the said orders is in respect of the salaries to be paid while in service and not for retiral benefits. The clarificatory Office Memorandum dated 24.12.2011 has not mentioned anything about making any changes to the provisions made in the orders dated 3.6.2011 and 12.8.2011 about the grant of pensionary benefits. It would have been otherwise, if any order was issued specifically modifying the said provisions relating to pensionary benefits mentioned in the orders dated 3.6.2011 and 12.8.2011. Hence, without modifying or superseding the specific provisions made in the orders dated 3.6.2011 and 12.8.2011 regarding the pensionary benefits, the benefits granted thereunder cannot be taken away by a mere clarificatory order as the earlier mere beneficial orders remain undisturbed and not superseded by any subsequent valid orders. It may be also mentioned that contrary to what the Ld. Govt. Advocate had submitted, the Cabinet decision taken on 10.8.2011 did not mention that the cut off date for grant of pensionary benefit of cash payment/actual benefit will be 1.11.2010. The Cabinet decision merely mentions that the pension shall be calculated on the basis of notional pay and AGP in the revised pay. Further, no separate scheme for pensions have been evolved by the State Government in terms of the UGC Regulations. Hence, the petitioners'' pensionary benefits will be governed by the similar pensionary rules and regulations governing other retired government servants.
It may be also mentioned that a Cabinet decision unless translated into formal order in terms of Article 166 of the Constitution is not actionable. (See Bachhittar Singh Vs. The State of Punjab, and J.P. Bansal Vs. State of Rajasthan and Another, ). Even if it is presumed that the clarification order was issued on the basis of the Cabinet decision, yet, no decision was taken by the Cabinet to fix the retiral benefit of the cash payment/actual payment from 1.11.2010.
Accordingly, this Court is of the view that by the Office Memorandum dated 24.12.2011, as far as the claim of the petitioners for grant of cash payment/actual benefits w.e.f. 1.4.2010 as provided under the Office Memorandum dated 5.5.2010, cannot be taken away and to that extent the aforesaid Office Memorandum dated 24.12.2011 cannot be enforced against the petitioners. This Court has also noted that the aforesaid Office Memorandum dated 24.12.2011 is merely in the nature of clarification without modifying the orders dated 3.6.2011 and 12.8.2011 and also an executive order which cannot prevail upon the Office Memorandum dated 5.5.2010 which has statutory force which governs the retiral benefits and they form a part of the Manipur Civil Services (Pension) Rules, 1977, Commutation of Pension under the Manipur Civil Services (Commutation of Pension) Rules, 2010 and the Manipur Services (Extraordinary Pension) Rules, 1995.
Accordingly, for the reasons discussed above, the present writ petition is allowed. The petitioners will be entitled to enjoy the actual benefit of the cash payment/actual payment as regards the pensionary benefits w.e.f. 1.4.2010 and other benefits as mentioned in the Office Memorandum dated 5.5.2010 and they shall be also entitled to any other extension of benefits including arrears in terms of the order dated 20.9.2011 or any subsequent orders that may have been passed.
The petitioners who have rendered a long valuable service in the field of education have volunteered to donate a sum of Rs. 1000/- each from their entitlements for the benefit of the children of the Children Home managed by the State Government, for which gesture, this Court records its appreciation. The amount so donated by the petitioners will be deposited in the account of the Children Home, Takyelpat, managed by the State Government to be utilised for the immediate and personal needs of the resident children of the Home.