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PETITIONER: THE GOVT. OF A.P. & ORS.

       Vs.

RESPONDENT: SYED YOUSUDDIN AHMED

DATE OF JUDGMENT:       13/08/1997

BENCH: SUJATA V. MANOHAR, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T PATTANAIK, J.      This appeal  is directed  against the  judgment of  the Full Bench of Andhra Pradesh Administrative Tribunal in O.A. No. 10380  of 1990.   The  Tribunal by  the  impugned  order directed that ’inventive increments’ which had been given to the respondent for his meritorious work must be held to be a personal pay  and the said personal pay has to be taken into account  for   determining  the   ’emoluments’   which   the respondent was drawing on the date of his superannuation for the purpose  of calculating  his pension.   The  respondent, admittedly, was an employee of the erstwhile Hyderabad State and  after   the  merger  of  the  said  State  and  on  re- organisation he  became an  employee of  the State of Andhra Pradesh.   On the date of his superannuation on 31.121989 he was working as a Deputy Executive Engineer in the Irrigation Department and  he had  been granted four advance increments as ’incentive  award’ pursuant  to GOMs  No. 562  GAD  dated 17.11.1982 and  GOMs No.  127  I&CAD  dated  8.4.1988.    In calculating his  pension since  this  amount  drawn  by  the respondent as incentive increment was not taken into account he approached  the Administrative Tribunal.  The Tribunal by the  impugned  order  having  directed  that  the  incentive increments drawn  by the  respondent  on  the  date  of  his superannuation should  be taken  as a part of his emoluments and,  therefore,   should  be   taken   into   account   for determination of  his pension,  the State,  has come  up  in appeal.      The learned  counsel for  the appellant  contended that the pension  of the  State Government  employee  has  to  be determined in  accordance with  the Andhra  Pradesh  Revised Pension Rules  of 1980,  which has been framed under proviso to Article  309 of the Constitution, hereinafter referred to as ’the Rules’.  Under the Rules the expression ’emoluments’ means ’Pay’  as  defined  in  Rule  9(21)  (a)  (i)  of  the Fundamental Rules  which a  Government servant was receiving immediately before  his retirement or on his death.  In Rule 9(21) (a)  (i) of the Fundamental Rules the expression ’Pay’ means :  the pay,  other than special pay or granted in view of his  personal qualifications,  which has  been sanctioned

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for a  post held  by him  substantively or in an officiating capacity, or  to which  he is  entitled by  reasons  of  his position in a cadre.  Therefore, the ’incentive award’ which the  respondent  was  drawing  while  working  as  a  Deputy Executive Engineer cannot form a part of ’Pay’ as defined in Rule 9(21) (a) (i) of the Fundamental Rules and consequently would not  form a  part of  ’emoluments’ within the ambit of Rule 31  of the  Rules for  the purpose  of  calculation  of pension of the Government servant.  The Tribunal, therefore, committed gross  error in  directing the    said  ’incentive award’ should  be taken  into account  for  determining  the pension of  the respondent.   The  learned counsel  for  the respondent on  the other  hand contended,  Rule 31 which was amended in 1988 will not govern the case determining pension of the  employees who  were already  in service and it would apply to  those who  joined the  service after the amendment came into force.  The learned counsel further submitted that in view of the proviso to Rule 2 of the Fundamental Rule the Pension  Rules   could  not   have  been   amended  to   the disadvantage of a person already in service and consequently the amended  provisions of  Rule 31  of the  Revised Pension Rules must  be declared  to be invalid.  Though the Tribunal did not  go into  the said  question even though raised, the respondent is  entitled to  raise the question in support of the  order  passed  in  favour  of  the  respondent  by  the Tribunal.      In view  of  the  rival  submissions  at  the  Bar  the questions that arise for our consideration are: (i)  Is the  amended Rule  31 of  the Pension  Ruls has  any application to the existing employees lake the respondent or it applies  to those  employees who  would join  the service after the amendment has come into force? (ii) Whether in  calculating the  pension of the respondent, the amount  which he  was receiving  as ’incentive award’ on the date  of his  superannuation can  be taken  as a part of emoluments within  the meaning  of Rule  31 of  the  Revised Pension Rules? (iii)     Is the  proviso to Rule 2 of the Fundamental Rules any way  affects the  amendment  of  the  Pension  Rules  as contended by learned counsel for the respondent?      So  far   as  the  contention  raised  by  the  counsel appearing for the respondent that the amended Rule 31 of the Pension Rules  will have  no  application  to  the  existing employees of the Government is concerned, we do not find any substance in  the same.   The Pension Rules is a Rule framed by the  Governor in  exercise of  the power under proviso to Article 309  of the  Constitution.  The relationship between the Government  and its  servant is  not like  and  ordinary contract of service between a master and servant but a legal relationship something  in the  nature of status.  Origin of Government service  is contractual.   But  once appointed to his post or office, the government servant acquires a status and his  rights and  obligations are no longer determined by consent of  both parties,. but by statute or statutory rules which  may   be  framed  and  altered  unilaterally  by  the Government.   The  Legislature  under  Article  309  of  the Constitution and  the Governor  under proviso to Article 309 of the  Constitution can  make law  determining the  service conditions of the Government employees and such law can also be retrospectively  made.   But in the case in hand question of retrospective  application of  the amended  provisions of Rule 31  of the Revised Pension Rules really does not arise. It becomes  applicable to  all the  employees  who  were  in service on  the date  the amended  rules came into force for the purpose  of finding  out the  meaning of  the expression

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’emoluments’ on  the basis  of  which  the  pension  of  the employee has  to be  calculated on  superannuation.  In this view of the matter the contention of the learned counsel for the respondent  that Rule  31  would  apply  only  to  those employees who  joined service  after the  amended rules came into force  is wholly  without substance  and  the  same  is accordingly rejected.      Coming now  to the  second question  the  answer  would depend upon  an interpretation  of Rule  31 of  the  Revised Pension Rules  and Rule  9(21) (a)  (i) of  the  Fundamental Rules.   Under Rule  31 of  the Pension Rules the expression ’emoluments’ would  mean ’Pay’  as defined in Rule 9(21) (a) (i) of  the Fundamental Rules which a Government servant was receiving immediately before his retirement.  Rule 9(21) (a) (i) of  the Fundamental  Rules defines ’Pay’ to mean ; ’Pay’ means the amount drawn monthly by a Government servant as - (i)  the pay,  other than  special pay or granted in view of his personal qualifications, which has been sanctioned for a post  held   by  him  substantively  or  in  an  officiating capacity, or  to which  he is  entitled by  reasons  of  his position in a cadre;      The  expression   Special  Pay’  has  been  defined  in Fundamental Rules  9(25) to  mean an addition, of the nature of pay,  to the  emoluments of  a post  or of  a  Government servant granted in consideration of- (a)  the specially arduous nature of the duties; or (b)  a specific addition to the work or responsibility      The expression  ’personal pay’ has been defined in Rule 9 (23)  of the  Fundamental Rules  to mean,  additional  pay granted to the Government servant,  (a) ............ (b)  in   exceptional  circumstances,   on  other   personal considerations.      The learned  counsel appearing  for the  respondent had submitted that  in view of the clarificatory circular issued by the  General Administration  (AR&T  I)  Department  dated 25.5.84 to  the effect  that the  increments with cumulative effect  granted  to  a  government  servant  the  terms  and conditions governing  the grant of Family Planning Incentive increment would  apply    and  since  under  the  terms  and conditions governing  the grant of Family Planning incentive issued by  the Government of Andhra Pradesh under Memorandum No. 402/D2/78-M&H  dated 5.5.1978  such  advance  increments have been  held to be ’personal pay’ to be reckoned as basic pay for the purpose of pension the respondent is entitled to get the  same the so far as the incentive increments awarded in his  favour which  he was  drawing on  the  date  of  his superannuation.   We are,  however, not  in  a  position  to accept this  submission  of  the  learned  counsel  for  the respondent.   It is  no doubt  true, that  under the  Family Welfare Programme  an incentive  granted to  the  government servant therein  the Government of Andhra Pradesh had issued an Administrative  Order stating  therein that  the  advance increments sanctioned  for undergone sterilization operation in the  lower post  or higher  post  shall  continue  to  be available as’  personal pay’ to be reckoned as basic pay for the purpose  of pension  etc.  The incentive increment which is granted  to a  government servant  for arduous  nature of duty discharged  by a  government servant  though would  not directly come  under the  purview of  the Medical and Health Department Memorandum  dated  5.5.7  relating  to  grant  of increments for  undergoing sterilization  operation, yet  in view of  the Government  letter dated  25.5.84 issued by the General   Administration   Department   making   terms   and conditions  of   governing  the  grant  of  Family  Planning

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increment incentive applicable, the said incentive increment can be  held to  be a  ’personal pay’ of the respondent.  Bu neither the  aforesaid Health  Department  Memorandum  dated 5.5.1978, nor the Government letter dated 25.5.84, issued by the General  Administration Department  could make aforesaid incentive increment  to be  part of the emoluments under the Provisions of  Rule 31  of the  Pension Rules  so  that  the respondent can  claim  inclusion  of  the  said  amount  for determining his  pension. It may be stated here that for the purpose of  Rule 31  of the  Pension Rules  ’emoluments’  of government servant  would mean the parry which he is drawing as defined  in Rule  9(21)(a)(i) of  the Fundamental  Rules. Said Rule 9(21)(a)(i) clearly excludes the’ especial pay’ or ’personal pay’  granted to  a government  servant in view of his personal qualifications or otherwise from the purview of the expression  ’pay’ and, therefore, whether the ’incentive award’ is  held either a ’special pay’ or ’personal pay’ the same would  not form part of ’pay’ under Rule 9(21)(a)(i) of the Fundamental  Rules and  consequently would not form part of emoluments  under Rule  31 of  the Rules  for being taken into account  for computation  of pension of the respondent. The Tribunal,  therefore, is  wholly in  error in  directing that the  ’incentive award’ granted to the respondent may be taken  into  account  for  determining  his  pension.    The contention  of   the  learned   counsel  appearing  for  the respondent, on this score is devoid of any force.      So far  as the third question is concerned, undoubtedly the Tribunal has not gone into the issue and as the question had been  raised  before  the  Tribunal,  we  permitted  the respondent to  raise the  question also  in this proceeding. The counsel  for the  respondent urged  that in  view of the proviso to  Rule  2  of  the  Fundamental  Rules  which  was inserted by  Section 7  of Act  23 of  1984, no  rule can be modified or  replaced by  the Governor  under Article 309 of the Constitution  of India to the disadvantage of any person already in  service except in respect of matters relating to the age  of superannuation  and as  such the  Pension  Rules could not  have been  amended to  the  disadvantage  of  the respondent who  was already  in service.  We do not find any force in  the aforesaid  contention  since  the  proviso  in question prohibits modification or replacement of provisions of Fundamental  Rules itself  in  exercise  of  power  under Article 309  of the  Constitution to  the disadvantage  of a person already in service.  It has no reference to any other Rule which  a Governor  could frame under proviso to Article 309 of  the Constitution.   In  that view  of the matter the proviso to Rule 2 of the Fundamental Rules cannot effect the power of the Governor to amend the Pension Rules in exercise of his  power under  the  proviso  to  Article  309  of  the Constitution.  The said contention is devoid of any force.      In view  of  our  conclusion  on  question  no.  2  the impugned order  of the  Tribunal cannot  be sustained and we accordingly set  aside the  same.  It may be stated that the ’incentive award’  which the  respondent was  drawing  while continuing as Deputy Executive Engineer cannot be held to be a part  of ’emoluments’  for the  purpose of determining the pension of  the respondent  under the Pension Rules.  The OA No.  10380   of  1990   filed  before   the  Andhra  Pradesh Administrative Tribunal  stands dismissed and this appeal is allowed but in the circumstances there will be no order a to costs.