Kerala High CourtV.Parameswaran vs Union Of India on 17 March, 1993IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT:

                 THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

        THURSDAY, THE 5TH DAY OF FEBRUARY 2015/16TH MAGHA, 1936

                         WP(C).No. 16338 of 2011 (N)
                           ----------------------------

PETITIONER:
--------------

         V.PARAMESWARAN,
         S/O.LATE T.SANKARAN NAIR, AGED 77 YEARS, LAKSHMI
         DR.P.A.KUTTY ROAD, OLAVAKODE, PALAKKAD-678 002.

         BY ADV. SRI.JACOB SEBASTIAN

RESPONDENTS:
-----------------

       1. UNION OF INDIA, REP.BY ITS SECRETARY,
          MINISTRY OF CONSUMER AFFAIRS, FOOD AND PUBLIC
          DISTRIBUTION, DEPARTMENT OF FOOD, KRISHI BHAVAN
          NEW DELHI.

       2. THE PAY AND ACCOUNTS OFFICER,
          CENTRAL PENSION ACCOUNTING OFFICE, TRIKOOT-2
          BHIHAJI CANA PLACE COMPLEX, (BEHIND HOTEL HYATT
          REGENCY), NEW DELHI-110 066.

       3. THE ZONAL MANAGER,
          FOOD CORPORATION OF INDIA, HADDOWS ROAD
          CHENNAI-600 006.

       4. THE REGIONAL DIRECTOR (FOOD),
          SOUTHERN REGION, 3, HADDOWS ROAD
          CHENNAI-600 006.

       5. THE SENIOR ACCOUNTS OFFICER,
          PAY AND ACCOUNTS OFFICE, MINISTRY OF FOOD AND
          PUBLIC DISTRIBUTION, SASTHRI BHAVAN, CHENNAI-600 006.

       6. THE MANAGER,
          CANARA BANK, KALPATHI BRANCH, PALAKKAD
          KERALA. PIN-678 003.

         R1, R2, R4 & R5 BY CGSC SRI.THOMAS MATHEW NELLIMOOTTIL,
         R6 BY DR.PAULY MATHEW MURICKEN
         R3 BY SRI.IBRAHIM KHAN, SC, FCI

             THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
05-02-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No. 16338 of 2011 (N)




                               APPENDIX


PETITIONER'S EXHIBITS:


EXT.P1: A TRUE COPY OF THE RELEVANT PAGES OF SERVICE BOOK OF THE
           PETITINOER.

EXT.P2: TRUE COPY OF THE LETTER NO.036879300255/78902 DATED 17.3.1993
           ISSUED BY THE 2ND RESPONDENT.

EXT.P3: A TRUE COPY OF THE AUTHORIZATION LETTER DATED 30.12.1996.

EXT.P4: A TRUE COPY OF THE REVISED AUTHORIZATION LETTER DATED
           28.4.1999.

EXT.P5: A TRUE COPY OF THE MEMO.

EXT.P6: A TRUE COPY OF THE JUDGMENT DATED 14.3.2000 IN O.P.NO.1642/96
           AND CONNECTED CASES OF THIS HONOURABLE COURT.

EXT.P7: A TRUE COPY OF THE JUDGMENT DATED 1.10.2002 IN O.P.NO.21954/99
           OF THIS HON'BLE COURT.

EXT.P8: A TRUE COPY OF THE JUDGMENT DATED 10.2.2010 OF THE HON'BLE
           SUPREME COURT IN CIVIL APPEAL NOS.238 TO 244/2004.

EXT.P9: A TRUE COPY FO THE LETTER DATED 12.4.2011 OF THE 4TH
           RESPONDENT.

EXT.P10: A TRUE COPY OF THE ORDER DATED 18.5.2011 OF THE 5TH
           RESPONDENT.

EXT.P11: A TRUE COPY OF THE RELEVANT PAGES OF THE PETITIONER'S PENSION
           BOOK.

RESPONDENTS' EXHIBITS:

EXT.R1(a): TRUE COPY OF RELEVANT PAGES OF FCI ACT, 1964 CONTAINING
           SECTION 12A.

EXT.R1(b): TRUE COPY OF OPTION EXERCISED BY THE PETITIONER ON
           18.4.1977.

EXT.R1(c) TRUE COPY OF PAO AE DATED 19.12.1993.

EXT.R1(d): TRUE COPY OF PAY FIXATION ORDER DATED 19.5.1993 ISSUED BY
           REGIONAL OFFICE OF FCI.

EXT.R1(e): TRUE COPY OF LETTER DATED 23.10.1993 SENT BY THE PETITIONER
           TO REGIONAL DIRECTOR (FOOD) MADRAS.

EXT.R1(f): TRUE COPY OF OPTION AS PER SECTION 12(A)(4) OF THE FCI ACT
           1964 EXERCISED BY THE PETITIONER.

EXT.R1(g): TRUE COPY OF LPC OF THE PETITIONER.

WP(C).No. 16338 of 2011 (N)




EXT.R1(h): TRUE COPY OF EXTRACT FROM SERVICE BOOK OF THE PETITIONER
           SHOWING THE REVISION OF PAY OF THE PETITIONER.

EXT.R1(i) TRUE COPY OF PAY RE-FIXATION ENTRY MADE IN THE SERVICE BOOK.

EXT.R1(J): TRUE COPY OF PENSION CALCULATION SHEET AND THE PAO'S AUDIT
           ENFACEMENT.

EXT.R1(k): TRUE COPY OF PETITIONER'S SERVICE BOOK SHOWING THE ENTRIES
           OF HIS PAY REVISION ACCORDING TO 1.8.87 IDA WAGE REVISION.

EXT.R1(l): TRUE COPY OF STATEMENT SHOWING THE PAY DRAWN BY THE
           PETITIONER WHILE IN SERVICE AND THE CORRESPONDING CENTRAL
           GOVERNMENT PAY WHICH THE PETITIONER WOULD HAVE DRAWN
           AND THE CORRESPONDING PENSION IN BOTH CASES.

EXT.R1(m): TRUE COPY OF LETTER DATED 4.8.2011 OF PAO, CHENNAI.




                        // TRUE COPY //



  TKS




                                               P.S. TO JUDGE



                          C.T.RAVIKUMAR, J.
      --------------------------------------------------------------
                       W.P.(C)No.16338 of 2011
                                    &
      Cont. Case (C)No.1536 of 2010 in O.P.No.1642 of 1996
      ---------------------------------------------------------------
                       Dated 5th February, 2015

                              JUDGMENTThe captioned writ petition and the contempt petition were

taken up for joint hearing and disposal pursuant to the judgment of a

Division Bench of this Court dated 18.7.2011 in W.A.No.987 of 2011

arising from the order declining to grant the interim prayer in the

captioned writ petition.   For the sake of convenience, the petitioner in

the writ petition is referred to hereafter in this judgment as `the writ

petitioner' and the petitioner in the contempt petition is referred to as

`the petitioner' .2. The writ petitioner was an erstwhile employee of

Government of India in the Ministry of Food under the Regional

Director, Southern Region, Madras. He commenced his service as a

clerk in 1958. Subsequent to the formation of the Food Corporation of

India (for short `FCI') along with certain similarly situated employees

he was transferred to FCI. Two options, one under Clause (a) and the

other under Clause (b), of sub-section (4) ofSection 12Aof the Food

Corporation of India Act, 1964 (for short `the Act') were admissible to

COC.1536/2010 & WP(C)16338/2011       2


such transferees. For a proper understanding of the nature and impact

of the said options it is relevant to refer to the said provisions which read

thus:-"S.12A(4)Every officer or other employee transferred
          by an order made under sub section (1) shall, within six
          months from the date of transfer, exercise his option in
          writing to be governed-a) by the scale if any applicable to the post held by him
              under the Government immediately before the date
              of transfer or by the scale of pay applicable to the
              post under the Corporation to which he is
              transferred.b) By the leave, provident fund, retirement or other
              terminal benefits admissible to employees of the
              Central Government in accordance with the rules
              and orders of the Central Government as amended
              from time to time or the leave, provident fund or
              other terminal benefits admissible to the employees
              of the Corporation under the Regulation made by
              the Corporation under this Act, and such option once
              exercised shall be final."3. For the sake of convenience, hereafter in this judgment,

the scale of pay referred to in the first part of Clause (4)(a) applicable to

the transferee in the Department immediately before the transfer is

referred to as `CDA pay' and the scale of pay applicable to the post

under the Food Corporation to which he is transferred under the latter

COC.1536/2010 & WP(C)16338/2011     3




limb of Clause (4)(a) is referred to as `IDA pay'. So also, the option for

leave, provident fund, retirement or other terminal benefits admissible to

the employees of the Central Government in accordance with the rules

and orders of the Central Government as amended from time to time,

mentioned in the first limb of Clause 4(b) is referred to as `CDA benefits'

and the option for such benefits admissible to the employees of the Food

Corporation of India under the Act, referred to in the latter limb of Clause

(4)(b), is referred to as `IDA benefits'. Admittedly, after the transfer to

FCI, availing the right to opt, the writ petitioner opted `IDA pay' and

therefore, had been receiving salary in the scale of pay applicable to the

post under the FCI to which he was transferred till his retirement. At

the same time, availing the right to opt regarding the leave, provident

fund, retirement or other terminal benefits, the writ petitioner opted the

`CDA benefits'. In other words, immediately after his transfer he opted

to come over to the scale of pay applicable to the post under the FCI to

which he was transferred and opted for the benefits referred to in Clause

4(b) applicable to the Central Government employees in accordance with

the rules and orders of the Central Government as amended from time to

time. It is to be noted in this context that there is absolutely no dispute

COC.1536/2010 & WP(C)16338/2011     4


with reference to the said options exercised by the writ petitioner.4. The writ petitioner retired from FCI on attaining the age of

superannuation while working as Assistant Grade-I on 31.1.1993. In

terms of the option exercised by him under Clause (4)(b) ofSection 12Aof the Act his retirement benefits were fixed and payments were effected

at the rates applicable to Central Government retirees under the C.C.S

(Pension Rules). The writ petitioner's pension was fixed at Rs.1,202/-

per month with effect from 1.2.1993 as per Ext.P2 authorisation. Later,

his pension was revised to Rs.1,666/- with effect from 1.2.1993 as per

Ext.P3 authorisation. Along with Ext.P4 revised pension payment order

Ext.P5 memo carrying certain directions was forwarded to the writ

petitioner's Bank.     In respect of the writ petitioner, as per Ext.P5,

following directions were forwarded to the 6th respondent, the Manager of

Canara Bank, Kalpathi Branch:-"1) The pensioner belongs to I.D.A. category.2) No Central Dearness Relief and Interim Relief are
          admissible.3) No Central Pay Commission Revisions.4) I.D.A Wage Revision Commissions are set once in five

COC.1536/2010 & WP(C)16338/2011     5


          years. Revision of Pension/updation should be done as
          per    the   orders   of  the   I.D.A.  wage    Revision
          Commission.5) I.D.A relief on pension should be paid as per the orders
          of department of Public Enterprises. Copy of orders of
          rates of I.D.A Relief enclosed.6) The Central Dearness Relief, Interim Relief and 5th Pay
          Commission Report Revisions (if paid erroneously)
          should be recovered in Diff. DCRG and if the recovery
          exceeds Diff. DCRG, the amount should be recovered
          in installments from future relief.7) The fact that IDA pensioners are not eligible for Central
          DR had already been communicated to the Central
          Pension     Accounts  Controllers  Office,  Banks    and
          Pensioners, when the revision of pension for 1987 IDA
          wage revision was done during 1996-97 and 997-98.But many banks have revised the pension as given in
          the special seal revision letter and paid Central D.R.
          and I.R and also have done the 5th P.C.R. updation.8) The Department of Public Enterprises issued orders of
          relief only up to 1991 in March 6. Now in 1998, the
          Department of Public Enterprises has released the
          subsequent orders of relief from 11/91."Realising the impact of Ext.P5 viz., his categorisation as I.D.A pensioner

and the denial of Central Dearness Relief, Interim Relief and Central Pay

Commission Revision and also the consequential proposed recovery the

writ petitioner approached this Court by filing O.P.No.21954 of 1999.

Prior to that certain other similarly situated persons approached this

Court under similar circumstances carrying similar grievances by filing

COC.1536/2010 & WP(C)16338/2011      6


O.P.No.1642 of 1996 and connected cases. Those cases were allowed as

per Ext.P6 judgment. As per Ext.P6, the impugned orders were quashed

and respondents therein were ordered to treat the petitioners therein as

Central Government employees for the purpose of pension and

disbursement of other retiral benefits and as regards their pension it was

ordered that it should not be reduced and they should continued to be

paid with allowances and timely enhancement available to Central

Government retirees. Ext.P6 judgment was taken up in appeal. At that

point of time, the writ petitioner challenged Ext.P5 and the consequential

steps for effecting recovery by filing O.P.No.21954 of 1999. That original

petition filed by the writ petitioner was posted along with the writ

appeals filed against Ext.P6 judgment.       As per Ext.P7 judgment the

Division Bench dismissed the writ appeals filed against Ext.P6 judgment

and allowed the original petition filed by the writ petitioner. Against

Ext.P7 judgment the first respondent Union of India filed appeals before

the Hon'ble Supreme Court and it is to be noted at this juncture that, in

fact, no Special Leave Petition was filed against the judgment in Ext.P7

to the extent it pertains to the writ petitioner viz., judgment in

O.P.No.21954 of 1999 filed by him.          As per Ext.P8 order     dated

10.2.2010 in Civil Appeal Nos.238 to 244 of 2004 the Hon'ble Apex Court

COC.1536/2010 & WP(C)16338/2011      7


dismissed the appeals with costs of Rs.10,000/- to be awarded to each of

the private respondents therein. Subsequent to Ext.P8 order, the 5th

respondent re-fixed the writ petitioner's pension with Central Dearness

Relief only and at the same time, did not effect re-fixation, in other

words, all other benefits of pension fixation applicable to Central

Government employees in the case of the writ petitioner. The Manager

under the 4th respondent as per Ext.P9 ordered to revise the writ

petitioner's pension in the aforesaid manner.         Thereupon, the 5th

respondent to whom Ext.P9 was issued by the 4th respondent effected re-

fixation of the pension of the writ petitioner in terms of the directions in

Ext.P9. As a consequence of Exts.P9 and P10, despite Ext.P7 judgment

which has become final, the writ petitioner was practically continued to

be treated as an IDA pensioner. As per Ext.P10, it was held that the VIth

Pay Commission Revision except the Central Dearness Relief should not

be allowed to the writ petitioner. The contention of the writ petitioner is

that since his retirement on 31.1.1993 he has been drawing the pension

on Central Government pattern viz., CDA benefits and to treat the writ

petitioner as an IDA pensioner for the purpose of pension is illegal and

unsustainable as it is opposed to Ext.P7 judgment. Going by the earlier

fixation of his pension the writ petitioner was drawing a monthly pension

COC.1536/2010 & WP(C)16338/2011   8


of Rs.17,419/-, as is obvious from Ext.P11. It is contended that in case

of implementation of Ext.P10 his monthly pension would be reduced from

Rs.17,419/- to Rs.15,670/-.       It is further submitted that such

implementation would also result in consequential recovery alleging

excess payment of pension. According to the writ petitioner, in the light

of Exts.P7 and P8 judgments he is entitled to get a monthly pension of

Rs.23,738/- that is, the basic pension of Rs.15,721/- + 51% of Central

Dearness Relief of Rs.8,017/-. At the same time, as per Ext.P10, it was

proposed to fix the writ petitioner's basic pension at Rs.10,179/- and

taking into account 51% of the Dearness Relief of that basic pension it

was fixed at Rs.15,370/-. It was in the said circumstances that the writ

petitioner approached this Court by filing the captioned writ petition

seeking quashment of Exts.P9 and P10 and issuance of appropriate writ

commanding the respondents to pay pensionary benefits based on the

basic pay fixed as per Ext.P4 with effect from 1.2.1993 in accordance

with the provisions contained in the Central Civil Services (Pension)

Rules. The following further prayers are also sought for:-"(iii) Declare that the petitioner is entitled to get the
             Central Dearness Relief, Interim Relief and the 6th
             pay Commission report and other benefits given to

COC.1536/2010 & WP(C)16338/2011       9


            Central Government employees in accordance with
            the provisions contained in Central Civil Services
            (Pension) Rules by the issuance of writ of mandamus
            or other appropriate writ, order or direction.(iv) Issue a writ of certiorari or any other appropriate writ,
            order or direction commanding the respondents not
            to recover any amount from the petitioner and
            disburse the differential commuted value of pension
            and gratuity and also to disburse the arrears of
            pension due to the petitioner based on the basic
            pension fixed under Ext.P4 by fixing the total pension
            as if he retired from service as Central Government
            Employee."5. A counter affidavit has been filed on behalf of respondents

1, 2, 4 and 5. A perusal of the counter affidavit would reveal that the

said respondents refuted the claims and contentions of the writ petitioner

and according to them, he is entitled to get monthly pension strictly in

terms of Exts.P9 and P10 and therefore, Exts.P9 and P10 do not call for

any interference. The statements in paragraph 3 of the counter affidavit

would reveal the fact that the writ petitioner opted the scale of pay

applicable to the post under the Corporation to which he was transferred

in terms of Clause (a) of sub-section (4) ofSection 12Aof the Act and

the fact that he made the option for the Central Government terminal

benefits as per Clause (b) of sub-section (4) ofSection 12Aof the Act

were not disputed by the respondents. The option thus exercised by the

COC.1536/2010 & WP(C)16338/2011    10


writ petitioner on 18.4.1977 pursuant to his transfer to FCI became final

as going bySection 12A(4)of the Act such options once exercised would

be final. The rival submissions would reveal the undisputed position that

pursuant to his transfer to the FCI, invoking the right to opt under Clause(a) of sub- section (4) ofSection 12Aof the Act, the writ petitioner opted

the scale of pay applicable to the post under the FCI to which he was

transferred and that he opted retirement and terminal benefits applicable

to the Central Government employees in accordance with the rules and

orders of the Central Government, as amended from time to time, by

availing the right to opt under Clause (b) of sub-section (4) ofSection

12Aof the Act. At the same time, the contention of the respondents is

that the writ petitioner had not opted totally for the Central Government

benefits. Various other contentions were also raised to resist the claims

and contentions of the writ petitioner. With respect to the contention

that the writ petitioner had not opted totally for the Central Government

benefits I am of the considered view that the said contention cannot be a

reason for denying any benefit to the writ petitioner pursuant to his

option to get the retiral benefits at the rates applicable to the Central

Government retirees as the writ petitioner has effected his option

perfectly in tune with the provisions under Clauses (a) and (b) of sub-COC.1536/2010 & WP(C)16338/2011    11


section (4) ofSection 12Aof the Act. The respondents did not dispute

and, in fact, they could not dispute the availability of such options under

Clauses (a) and (b) of sub-section (4) ofsection 12Aof the Act and also

of the fact that the writ petitioner had exercised such options in the

manner made mention hereinbefore.         As noticed hereinbefore, in the

counter affidavit filed by the respondents they have raised various other

contentions to resist the entitlement of the writ petitioner to be treated

as a CDA pensioner for the purpose of pension, in other words, his

entitlement to get the retiral benefits at the rates applicable to a Central

Government retiree. I am of the view that those contentions call for no

consideration at all as the respondents are legally estopped from raising

any contention to oppose the same in the light of Ext.P7 judgment which

is an inter parte judgment as regards the writ petitioner and the

respondents are concerned.        As noticed hereinbefore, the specific

contention of the writ petitioner is that as against Ext.P5 and the

consequential proposed recovery he filed O.P.No.21954 of 1999 and the

said original petition was posted along with the writ appeals filed against

the judgments in the original petitions which were allowed as per Ext.P6

judgment including the one in O.P.No.1642 of 1996. The said position is

incontrovertible and therefore, rightly the respondents did not dispute

COC.1536/2010 & WP(C)16338/2011      12


the said position. The fact that the writ appeals filed against Ext.P6

judgment including the one filed against O.P.No.1642 of 1996 were

dismissed and the original petition filed by the writ petitioner viz.,

O.P.No.21954 of 1999 was allowed as per Ext.P7 judgment is also

incontestable and very rightly the respondents did not dispute such

aspects in the counter affidavit. A scanning of the contentions in the

counter affidavit filed in the instant writ petition would further reveal that

the specific averment of the writ petitioner that even while dismissing the

writ appeals filed against Ext.P6 judgment O.P.No.21954 of 1999 filed by

him was allowed and still the respondents had not chosen to challenge

the same and allowed it to become final was not met and resisted by the

respondents. There is no case for the respondents that the decision in

Ext.P7 judgment allowing O.P.No.21954 of 1999 filed by the writ

petitioner was successfully challenged by him. When it is the admitted

position that the judgment in Ext.P7 to the extent it allowed

O.P.No.21954 of 1999 filed by the writ petitioner was not taken up

further before the Hon'ble Supreme Court it can only be said that

virtually the respondents have accepted the same and accordingly

allowed the judgment in Ext.P7 to the extent it pertains to O.P.No.21954

of 1999 to become final. When such an inter parte judgment between

COC.1536/2010 & WP(C)16338/2011    13


the writ petitioner and the respondents is in favour of the writ petitioner

and that the respondents have allowed the same to become final they

cannot canvass the same contentions which were repelled on the earlier

occasion and seek for nullifying the impact and effect of the earlier

judgment whereby the writ petitioner was found entitled to get the retiral

benefits at the rates applicable to the Central Government retirees. The

said position is strengthened by the further indisputable fact that even

the Civil Appeals filed against the judgment in the writ appeals by Union

of India were dismissed by the Hon'ble Apex Court as per Ext.P8 and that

too, with costs to each of the private respondents.               In such

circumstances, the fact that Ext.P7 to the extent it dismissed the writ

appeals filed against Ext.P6 judgment was taken up by the respondents

unsuccessfully before the Hon'ble Apex Court cannot be a reason for the

respondents to pass Exts.P9 and P10 for the purpose of treating the writ

petitioner as an IDA pensioner against the directions in Ext.P7 judgment

to the extent it is applicable to the writ petitioner by virtue of the

judgment in O.P.No.21954 of 1999. The respondents cannot be heard to

contend that there is no binding decision in relation to the writ petitioner

on the question of his entitlement as `CDA pensioner', to be followed. At

the same time, the cumulative impact of Exts.P9 and P10 is that the writ

COC.1536/2010 & WP(C)16338/2011    14


petitioner would be treated as an IDA pensioner with the further adverse

impact of reduction of his pension which was originally granted and

revised from time to time in the Central Government pattern based on

subsequent pay commission reports. Ext.P7 judgment would reveal that

O.P.No.21954 of 1999 filed by the writ petitioner was allowed and this

Court found that the writ petitioner opted the CDA pattern and therefore,

entitled to receive all benefits of Central Government employees. The

contention of the respondents that the writ petitioner who opted IDA pay

scales while in the service of FCI is seeking to switch over to CDA pay

scale after retirement is actually a contention bereft of any basis. The

writ petitioner had only exercised options strictly in tune with Clauses (a)

and (b) of sub-section (4) ofSection 12Aof the Act, extracted above.

Based on the option and the judgment in Ext.P7 the writ petitioner is

entitled to get his terminal benefits including pension at the rates

applicable to a Central Government retiree.       Having allowed the said

finding in Ext.P7 in respect of the writ petitioner to become final the

respondents could not have and should not have issued Exts.P9 and P10

under the cover of their unsuccessful attempt to challenge Ext.P7 to the

extent it pertains to the judgment in the writ appeals preferred against

Ext.P6 judgment. In the contextual situation it will not be inapposite to

COC.1536/2010 & WP(C)16338/2011     15


refer to the clear findings of the Division Bench in Ext.P7 judgment, in

relation to the rights of the writ petitioner and other petitioners whose

original petitions were allowed. After extracting Section 12A(4)(a) and(b) the Division Bench held thus:-"Admittedly the petitioners thereon opted to Central
           Government scheme and they had retired without
           receiving benefits       as per Central Government
           pattern. The appellants herein contend that they will
           not get dearness reliefs as applicable to Central
           Government employees as at the time of retirement
           they were employees of Food Corporation of India.
           But as perSection 12A(4)in view of their option
           petitioners are entitled to get their terminal benefits
           admissible to Central Government employees. These
           employees were originally Government of India
           employees at the time of formation of Food
           Corporation of India.    They were given to right for
           option under clause 12A(4)(a) and (b) and they opted
           the pattern of Central Government and they are
           entitled to receive all the benefits of Central
           Government employees.          Therefore, there are no
           reasons for discriminating them.      These petitioners
           also will be entitled to get the benefits as they are
           treated as Central Government employees in view of
           the option exercised by them. We fully agree with the
           decision of Karnataka High Court and learned Single
           Judge. In view of the above decision there is no merit
           in the writ appeals and are dismissed.Accordingly the writ appeals are dismissed and
           the original petitions are allowed."COC.1536/2010 & WP(C)16338/2011     16


In the circumstances, the respondents cannot resurrect the issue and

they are bound by Ext.P7 and hence, I do not think it appropriate to

consider any other contentions raised by the respondents as acceptance

of such contentions of the respondents, now, raised would amount to

overruling the decisions of the Division Bench in Ext.P7 judgment. When

faced with this situation, the learned Senior Counsel for the respondents

submitted that what was actually sought to be done is only to take into

account the pay lastly drawn by the writ petitioner in the IDA scale for

the purpose of computing the terminal benefits under the CDA pattern.

The said contention appears to be acceptable. But, it is to be noted that

admittedly, based on the earlier fixation, the writ petitioner has been

drawing monthly pension of ` 17,419/- as on 27.5.2011, as is obvious

from Ext.P11.        The    contention of  the  writ  petitioner  is that

implementation of Ext.P10 would bring it down to ` 15,670/-. After Ext.P7

judgment the writ petitioner has been drawing a monthly pension of

` 17,419/- and it cannot be reduced after pay revision and in fact, if

benefit is accrued subsequently to a retiree from a Central Government

Service it has to be made available to him, as well by virtue of the writ

petitioner's option underSection 12A(4)(b)of the Act. No circumstance

is brought to my attention to justify a reduction of the rate of pension.

Treating the writ petitioner as CDA pensioner, in the real sense to work

COC.1536/2010 & WP(C)16338/2011     17


out the benefit flowing from the option underSection 12A(4)(b)of the Act

cannot have any adverse effect in the matter of payment of pension to

the writ petitioner. The long and short of the discussion is that Exts.P9

and P10 to the extent they got the effect of treating the writ petitioner as

an IDA pensioner and the impact of bringing down the rate of monthly

pension and disentitling him the benefit based on the rules and orders

issued from time to time in respect of Central Government employees

are unsustainable and therefore, Exts.P9 and P10 are set aside. In such

circumstances, the writ petitioner is entitled to such benefits, in terms of

Ext.P7 judgment and the option exercised by him by availing Clause (b)

of sub section (4) ofSection 12Aof the Act has to be given in full effect

and the benefits flowing from it could not be denied or deprived, any

further. Needless to say that the writ petitioner is entitled to pensionary

benefits as if he retired from service as a Central Government employee

and all benefits flowing from the option under Clause (b) ofSection 12A

(4)of the Act after proper fixation have to be given to the petitioner.Benefits, if any, payable to the writ petitioner or withheld or flowing from

this judgment, shall also be disbursed to him, expeditiously, at any rate,

within a period of one month from the date of receipt of copy of this

judgment. The writ petition is allowed to the above extent.COC.1536/2010 & WP(C)16338/2011    186. Now, I will deal with the contempt petition viz., Cont. Case

(C)No.1536 of 2010 filed alleging disobedience with the directions in the

judgment dated 14.3.2000 in O.P.No.1642 of 1996.          Admittedly, the

petitioner and the writ petitioner are similarly circumstanced and

originally, both of them were employees of Central Government under

the Ministry of Food. Subsequent to the formation of Food Corporation of

India the petitioner along with the writ petitioner and certain other

employees were transferred to FCI and consequently, in terms of Clauses(a) and (b) of sub-section (4) ofSection 12Aof the Act the petitioner

exercised option, in fact, two options as has been done by the writ

petitioner and the others.     In other words, evidently, like them the

petitioner also opted retirement and retirement benefits admissible to

the employees in the service of Central Government.              It is the

subsequent proceedings treating him as IDA pensioner and the denial of

the Central Dearness Relief, Interim Relief and Central Pay Commission

Revision and consequential proposal to effect recovery that constrained

the petitioner to approach this Court by filing O.P.No.1642 of 1996 along

with four other similarly situated persons. That writ petition was heard

along with O.P.No.22648 of 1997 and connected original petitions and

COC.1536/2010 & WP(C)16338/2011    19


Annexure-C judgment (Ext.P6 in the writ petition) was delivered thereon.

The judgment in the said original petition was taken up in appeal along

with the judgment in the connected cases by the respondents and it

culminated in Annexure-D judgment (Ext.P7 in the writ petition). As per

Annexure-E order (Ext.P8 in the writ petition) dated 10.2.2010 in Civil

Appeal Nos.238 to 244 of 2004 the Hon'ble Apex Court dismissed the

appeals with costs of ` 10000 to be awarded to each of the private

respondents. Later, Annexure-F order dated 24.9.2010 was issued. The

contention of the petitioner is that in spite of      Annexures C to F

judgments and orders the respondents are willfully refusing to give effect

to the directions in the judgments. It is with the said allegation that the

captioned contempt petition has been filed. A perusal of the affidavits

filed by the respondents in this case would reveal that virtually, they c

adopted the same defence as has been raised in the writ petition while

resisting the entitlement of the writ petitioner even while taking up the

contention that they have virtually complied with the directions in the

judgment in O.P.No.1642 of 1996. I have already found in the captioned

writ petition that the respondents are bound to work out the terminal

benefits and pension strictly treating him as a CDA pensioner and to fix

all such benefits in the same manner it is to be fixed in the case of a

pensioner from Central Government Service in terms of Ext.P7 judgment

COC.1536/2010 & WP(C)16338/2011     20


which is Annexure-D in the contempt petition.           In the case of the

petitioner his right to get treated as `CDA pensioner' has been declared

in Annexure-C judgment and the appeal against it was dismissed as per

Annexure-D judgment. Since I have already rejected contra contentions

of the respondents and granted them a month's time for fixing such

benefits and disbursing any benefits, flowing from or withholding, to the

writ petitioner it will only be appropriate to defer further consideration of

the contempt petition till the expiry of the aforesaid period and also to

enable the respondents to comply with the directions in the case of the

petitioner as well. Post the captioned contempt petition on 9.3.2015.Sd/-C.T.RAVIKUMAR
                                                      Judge

TKS