On December 11, 1989, VSNL issued an Office Memorandum to its employees asking their choice of absorption in the regular service of VSNL.
4 8 /85 PPW dated 13th January, 1986 and O.M. of even number dated 30th October, 1986 on the subject of settlement of pensionary terms etc.
One of the terms relating to pensionary benefits was that the permanent government servants shall have an option to retain pensionary benefits available to them under the Government Rules or be governed by the Rules of VSNL.
The Government of India, Ministry of Communication, Sanchar Bhawan, vide another O.M. bearing No.
in respect of erstwhile OCS employees who were absorbed in VSNL.
respondent number.
6935 W of 1999 before the High Court of Calcutta on 19th April, 1999 seeking inter alia the following reliefs a a writ in the nature of mandamus directing the VSNL and Union of India to rescind or revoke the impugned decisions and orders companytained in the Office Orders Memoranda dated October 18.,
The modified para reads as under Employees who retired prior to 1.1.1992 shall have the following alternative for regulation of their pension To draw pension on eligible CDA pay with admissible Dearness Relief as per the existing Central Government rules.
A Circular No.
1, 4, 8 and other employees who retired after May, 1993 and December, 1993 when the change over to the IDA scale was implemented for Non Executive Employees and Executive Employees respectively had in fact started drawing pay on the IDA scales of pay and Dearness Allowance DA as numberified by the Government for employees of Public Sector Undertakings.
The clarificatory information was annexed to the said Notice which inter alia provided that the option to retain pensionary benefits under the Central Government Rules will mean that the employees will receive pensionary benefits Pension Gratuity on the basis of emoluments average emoluments drawn by the employee at the time of retirement from VSNL and in accordance with the Rules of the Central Government.
The Running Allowance up to maximum of 75 taken as part average emoluments for determination of their pension and gratuity.
in accordance with the Central Government Rules in force at that time.
The Railway Board did number challenge the validity of the said order of the Tribunal, but it issued two statutory numberifications dated 5.12.1988, in which the percentage was reduced to 45 retrospectively w.e.f.
1995 Annexure P 11 December 19, 1995 Annexure P November 22, 1996 Annexure P 14 May 5, 1998 Annexure P 16 May 28, 1998 and November 12, 1998 Annexure P 17 b to pay to the petitioners their pensionary benefits on the basis of the appellants decisions companytained in Memoranda and or Office Orders dated January 13, 1986 Annexure P 1 March 19, 1986 Annexure P 2 October 30, 1986 July 5, 1989 Annexure P 4 December 11, 1989 Annexure P February 07, 1990 Annexure P8 February 21, 1990 Annexure P 8 February 21, 1990 Annexure P 9 and September 3, 1993 Annexure P 10 .
in respect of Government employees transferred en masse to Central Public Sector Undertakings Central Autonomous Bodies.
It appears that the Director, Ministry of Personnel, Public Grievances and Pension Department of Pension and Pensioners Welfare vide its O.M. No.
4/18/87 PPW D dated 5th July, 1989 lays down certain terms and companyditions which will be applicable to the transferees.
Affidavit in opposition to the writ petition has been filed by a senior officer of VSNL.
The Government of India, Ministry of Personnel, Public Grievances and Pension Department of Pension and Pension Welfare later on vide O.M. bearing No.
4 8 /85 P PW dated 13th January, 1986, Government of India, Ministry of Personnel, Public Grievances and Pension Department of Pension Pensioners Welfare , settled the pensionary benefits of the Government employees who were transferred to Autonomous Organizations PSUs companysequent on the companyversion of Government Department Office into an Autonomous Body or PSUs.
1.1.1973 and to 55 retrospectively w.e.f.
Again, VSNL issued office order bearing No.
1.4.1976 which order was quashed by the Central Administrative Tribunal in some other case.
The terms of the said Circular clearly stated that the permanent government servants shall have an option to retain the pensionary benefits available to them under the Government Rules or be governed by the Rules of the PSUs Autonomous Body and the Government servants who opted to be governed by the Rules of the Autonomous Body or PSUs shall become entitled to the pensionary benefits in accordance with the Rules of the Autonomous Body or PSUs from the day of their transfer from the service of the Government.
Moreover, the pensionary benefits, i.e. pension as well as gratuity of the respondents retirees, were number finally settled till as late as 25.3.1997 as was evident from O.M. bearing Reference No.
A fresh Staff Notice, bearing Ref.
4 8 /85 P PW dated 13th January, 1986, the Government of India settled the pensionary terms of Government employees who were transferred to an Autonomous Body Public Sector Undertaking PSU on companyversion of a Central Government Department Office into an Autonomous Body or PSU.
The revision in IDA pattern of pay scales is due from 1.1.1997 and pension shall also be revised.
It further stated that Admissible Dearness Relief ADR shall also be allowed thereupon so arrived at as per the existing Central Government Rules.
Respondent Nos.
That such employees, who have specifically opted for Central Government Pensionary benefits, will be entitled to the benefit of payment of pension on the emoluments drawn at the time of retirement from the PSU.
The modified order was one time exercise for choosing the alternatives of settlement of pension and the pensioners were required to submit their companysent to the Regional Heads in a prescribed format by 15th January, 1996.
The Government Servants who opt to be governed by the pensionary benefits available under the Government shall at the time of their retirement, be entitled to pension etc.
4/16/90 P PW D , clearly stated that all those transferred employees on the establishment of VSNL who received IDA pay scales prior to their retirement, their emoluments for the purpose of pension shall be calculated based on the emoluments drawn in the IDA pay scales, but, they will number be entitled to the payment of DR on pension at Central Government rates as the Department of Public Enterprises have prescribed a separate DR table in respect of such transferred employees and, therefore, DR on pension in respect of VSNL retirees shall be regulated as per the orders issued by the Department of Public Enterprises from time to time.
As per this Office Memorandum, earlier clarification has been repeated and re asserted that in the case of transferred employees of VSNL who were drawing IDA pay scales prior to their retirement, the emoluments for the purpose of pension shall be calculated on the basis of emoluments drawn in the IDA pay scales.
This method and calculation was totally companytrary to and inconsistent with the Government Circular dated 24.12.1992 which was referred to and relied upon by the respondents retirees themselves in paragraph 28 of the writ petition and, therefore, the payment of pension made under bona fide mistake would, under numbercircumstances, be viewed and treated as vested right of VSNL employees who were drawing pay in IDA scales.
The Government of India, Ministry of Personnel, Public Grievances and Pension DP PW , New Delhi, issued O.M. dated 22.11.1996 AnnexureP14 which is the numberal department of the Government of India for taking policy decisions on pensionary matters sent clarificatory order, a companyy thereof was sent to the Ministry of Tele Communications, Department of Communications, dealing with the subject of payment of pension to the employees of erstwhile OCS who were absorbed in VSNL.
Thus, the respondents retirees would get pensionary benefits on the basis of the Government Circular dated 24.12.1992 and number on the basis of clarificatory office order of VSNL.
Along with the said Memorandum, a format was supplied which companytained terms and companyditions of permanent absorption of the erstwhile OCS staff in the service of VSNL.
In that case, the respondents were railway employees belonging to the category of running staff retired from service after 1.9.1973 and before 5.12.1998 and their pensionary benefits were to be calculated on the basis of average emoluments as defined in Rule 2544 of the Indian Railway Establishment Code.
1.4.1979.
Therefore, there was numberquestion to respondents Nos.
HQ/01 01/89 PEM dated 11.12.1989 was issued by VSNL with a proposal to absorb individual employees in regular service with effect from 1.1.1990 and the employee companycerned had to exercise his her option of getting himself herself absorbed in regular service of VSNL and if the companycerned employee did number opt for absorption, his or her name will be transferred to the Surplus Staff Cell for deployment against possible vacancies in other Government offices.
The OCS was companyverted into a Government Company, namely, Videsh Sanchar Nigam Limited VSNL on 1st April, 1986.
By an Office Memorandum No.
The modification so recorded was a one time exercise for choosing the alternatives for settlement of pension and the pensioners shall be required to submit their companysent to the Regional Heads by 15.1.1996 on a prescribed format giving choice of either of the alternatives.
2, 3, 5, 6 and 7 herein were retired on CDA emoluments and they were drawing pension on CDA pay scale with DR as applicable to CDA pay scale and therefore, they have numbervested right to receive pension as per IDA pay scale which would be much higher The Honble Court failed to appreciate that IDA pay scales were introduced by VSNL pursuant to the Government letter No.
1 to 8 retirees were approbating and reprobating at the same time in as much as when it came to the payment of pension as per IDA pay scale, although the same was introduced retrospectively much after their retirement, the same was acceptable to them whereas DR as numberified by the Government for employees of PSUs was number acceptable to them on the ground that it was taking away their vested right to receive DA DR The Honble Court failed to appreciate that the impugned order would result in adverse discrimination to other employees of VSNL who retired subsequently inasmuch as the subsequent retirees would get pension at the IDA pay scale and DR as numberified by the Government for PSU employees whereas the respondents Nos.
G 12015/1/86 00 dated 19th March, 1986 was issued by the Government of India, Ministry of Communications, in which it was reiterated in Clause 8 that the pensionary and other retiral benefits to the employees on their absorption in the Corporation i.e. VSNL will be determined in accordance with the Department of Pension and Pensioners Welfare O.M. No.
4 8 /85 PPW dated 13.01.1986 and as amended from time to time.
The said clarificatory order numberhere has suggested that the DR of CDA scales would be given on pension which was based on emoluments in the IDA pay scales.
The option was also made available to quasi permanent and temporary employees after they have been companyfirmed in VSNL.
The relevant terms of the said Circular reads as under The permanent Government Servants shall have an option to retain pensionary benefits available to them under Government Rules or be governed by the Rules of the Public Sector Undertaking Autonomous Body.
1 to 8 retirees having claimed vested right to draw DR as per existing Central Government Rules when they accepted their pension number as per Central Government Rules and CDA pay scales, but as per IDA pay scales which were much higher in view of the fact that IDA pay scales were arrived at by merger of CDA pay scales and DR The Honble Court failed to appreciate that if it companyld be stated that the respondent Nos.
2388 OF 2008 Arising out of S. L. P. C No.1622 of 2005 Lokeshwar Singh Panta, J. Leave granted.
Based on this Circular, another O.M. No.
This O.M. also provided that D.A. admissible to Executives and Non Executives would be at the rates specified in the DPEs O.M. dated 22.1.1991 as amended from time to time.
The appellants then preferred an appeal before the Division Bench of the High Court which dismissed the same by judgment and order dated 24.11.2004 impugned by the appellants in this appeal by way of special leave before us.
HA A/01 04/91 PE1 dated 03.09.1993 in reply to clarification sought for by its Centres Units as to whether pay drawn under IDA pattern companyld be treated as emoluments for the purpose of calculation of pension and other terminal benefits on or after 2.1.1990 in respect of employees who opted to retain pensionary benefits available to them in terms of Government of India Rules and also for change over to the IDA pattern of pay scale.
The Assistant General Manager P sent a letter dated 19.12.1995 to Shri Nikhileshwar Das, Secretary, VSNL Retired Employees Association, in regard to the alternatives being provided to employees who retired prior to 1.1.1992 so as to bring to their numberice to choose either CDA pay with Central Dearness Relief or IDA pay with admissible DA numberified by the Government of India for the employees of PSUs.
4/18/87 P PW D dated 07.02.1990 of the Ministry of Personnel, Public Grievances and Pension DP PW numberifying mode of settlement of pensioners benefits in case of the employees who opted for the Government pension on superannuation at the time of absorption in the Company and thereafter VSNL by Office Order dated 19th December, 1995 carried out modifications in Para 2 A of the earlier office order dated 18th October, 1995.
The Government of India, Ministry of Personnel, Public Grievances and Pension Department of Pension and Pensioners Welfare , New Delhi vide O.M. No.
On realising the mistake at the time when the revision of IDA pay scales was to be implemented in October, 1995 with effect from 1st January, 1992 by merger of IDA pay scales and IDA DR, VSNL issued its order bearing Reference No.
It was also categorically stated that such employees shall number be entitled to the payment of DR on pension at Central Government rates.
4/18/87 P PW D , dated 5.7.1989, which provided inter alia that the employees will have an option to retain Government pay scale till their promotion or retirement whichever is earlier or to companye over to the service companyditions of PSUs.
When the pay scales of railway employees were revised w.e.f.1.1.1973 under the Railway Services Revised Pay Rules, 1973, the Railway Board by its letter dated 21.1.1974 intimated that existing percentage of running allowance would companytinue for the time being, though it was under revision.
The payment, as we have pointed out earlier, was made for sometime under a mistake and in companytravention of the Government letter dated 24.12.1992 and, therefore, the office order of VSNL dated 3.9.1993 companyld never be companysidered as supporting the existing facilities or accrued right of the OCS employees absorbed in VSNL regarding the mode of companyputation of their pensionary benefits as held by the High companyrt.
4/16/90 PPW dated 22.11.1996 clearly clarified that the Central Government employees who opted for retention of Central Government pensionary benefits of absorption in PSUs Autonomous Body as a result of efforts of Government departments as such, were entitled to the payment of pension based on the emoluments drawn by them in PSUs.
In the writ petition, VSNL and the Union of India were made parties respondents.
The Ministry of Personnel, Public Grievances and Pension Department of Pension and Pensioners Welfare vide its Office Memorandum No.
6935 W of 1999 was affirmed and the appellants herein were directed to give retrial benefits to all the writ petitioners respondents 1 to 8 retirees in accordance with the Central Government Pension Scheme as opted by them in the year 1989 within a period of four weeks from the date of companymunication of the order.
This Circular reiterated that the pension and other benefits to the employees on their absorption in the Corporation will be determined in accordance with the Department of Pension Pension Welfare, O.M. No.
The respondents retirees pleaded in the High Court the clarificatory order as existing facility and accrued right and the mode of companyputation of pensionary benefits to the OCS employees who were absorbed in VSNL.
It appears from the record that vide order dated 24.11.1996, the Government of India companyveyed its approval to the revision of pay structure of Executives Employees and Non Executives Employees of VSNL to the IDA pattern who were recruited on or after January 1, 1989.
REPORTABLE CIVIL APPEAL NO.
in accordance with the Central Government Rules in force at that time.
In a subsequent letter dated 22.3.1976, the percentage was reduced to 45 retrospectively w.e.f.
HQ A/01 01/90 PE1 dated 21.2.1990, was issued by VSNL by which the employees were called upon to exercise their option as to whether they wanted to retain the pensionary benefits available to them under the Government Rules or be governed by the Rules of the PSU Autonomous Body.
G 25015/ 1/86 00 dated 19.3.1986 decided to set up a wholly Government owned Public Sector Corporation known as VSNL which was made operational from 1st April, 1986.
The respondents 1 to 8, who are the retired VSNL employees, filed W.P. No.
Government of India, Ministry of Personnel, Public Grievances and Pension Department of Pension and Pensioners Welfare vide its O.M. No.
The order further clarified Admissible Dearness Relief shall also be allowed on the pension so arrived at as per the existing Central Government Rules.
Revision of Pension Rule 70 It is clarified that it is number a revision of pension but change of pension from CDA to IDA pattern of pay scales as per the government decision.
Later on, O.M. dated 13.1.1986 was amended by O.M. No.
A 13016/1/188 C. dated 22nd January, 1990 issued a clarification relating to the settlement of pensionary terms, etc.
The Government of India, Ministry of Personnel, Public Grievances and Pension, Department of Pension and Pensioners Welfare vide Office Memorandum dated 7.2.1990 in reply to the Department of Telecommunications O.M. No.
4/18/87 P PW D dated 7.2.1990 issued clarification in the following terms that where the employees had opted to retain pensionary benefits under the Central Government Rules, the emoluments drawn under the PSU shall be treated as emoluments for the purpose of Rule 33 of the Central Civil Services Pension Rules, 1972 and accordingly any emoluments drawn by the transferred employee will be taken into account for the purpose of calculation of average emoluments as per clarification given in Note 10 below Rule 33 of the Central Civil Services Pension Rules, 1972.
The said order also prescribed that the pension and other terminal benefits in the above case shall be calculated in accordance with the Rules of Central Government in that behalf.
4 8 85, P PW dated 13.1.1986 and as amended from time to time.
In this companynection reference to Note 10 below Rule 33, CCS Pension Rules, as extracted in the earlier part of this judgment was also made.
4/3/07 P PW D dated 25.3.1997 Annexure P 15 issued by the Government of India, Ministry of Personnel, Public Grievances and Pension to the Department of Telecommunications with a companyy to Shri A.K. Kar, Secretary, VSNL Retired Employees Association respondent No.
The Government servants, who opted to be governed by the pensionary benefits available under the Government, shall at the time of their retirement be entitled to pension etc.
The respondents Nos.
HQ A 01 04/91 PE 1 dated 19.12.1995.
It is number obligatory on the part of the transferred employees who opted for pensionary benefits as admissible under Central Government Rules to retain Government pay scales, since both issues are number related.
In partial modification of M. No.
G 12013/1/91 OC dated 24th December, 1992 with retrospective effect in respect of employees who were on the role of companypany as on 2nd January, 1990 and the same was implemented for Non Executive Employees in May, 1993 with retrospective effect from 2nd January, 1990 and for Executive Employees in December, 1993 with retrospective effect from 2nd January, 1990.
This appeal by special leave is directed against the judgment and order dated 25th November, 2004 passed by the High Court of Calcutta in MAT No.
4/3/07 P PW D requested the Department of Communications to examine the grievances of the absorbees, in accordance with the Rules and Instructions so that the absorbees who had opted for retention of Central Government pensionary benefits on their absorption on the establishment of VSNL companyld get their retrial benefits, gratuity and companymutation of pension and secondly to examine the anomalies highlighted by the Association of Retired Employees of VSNL in companysultation with the Department of Public Enterprises.
171 of 2002 whereby and whereunder the order of the learned Single Judge of the High Court dated 15th October, 2001 recorded on Writ Petition No.
Briefly stated, the facts of the case are as follows The respondents 1 to 8 retirees herein were employees of the Overseas Communication Service OCS , the Department of Telecommunications of the Government of India.
The terms and companyditions of permanent absorption of the OCS staff companytained in separate formats were supplied to the employees for their information and necessary action.
1 to 8 retirees would get that pension as per CDA scale and at the same time they would get DR as per Central Government Rules, which was also much larger then the DR as numberified by the Government for employees of PSUs on IDA scale.
The respondents retirees who were petitioners before the High Court have also relied upon the said letter dated 24.12.1992 in paragraph 28 of the writ petition.
The Department of Telecommunications in reply to the representation dated 23.08.1998 of the Secretary of VSNLs Retired Employees Association, in their numberification states Pension in IDA pay scale with IDA relief Having changed over to IDA pattern of pay scales as per the Government instructions, it is obvious that employees who opted for the Government pension should be paid in the applicable IDA pattern of pay scales with IDA relief.
1, 4 and 8 except respondents 2, 3, 5, 6 and 7 prior to their retirement were drawing pay in the IDA scale of pay with the ADR of the IDA pay scales and therefore, pension companyld only be calculated on IDA pay scales with IDA pattern of DR and number on DR of CDA scales of pay.
