http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4