Dr. Y. Ibehaibi Devi (D) By Lrs. and Others vs The State of Manipur Represented By The Commissioner Higher and Technical Education Government of Manipur and Another

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2681 OF 2022 (Arising out of Special Leave Petition (C) No. 17253 of 2017)

DR. Y. IBEHAIBI DEVI (D) BY LRS. & ORS. ....APPELLANT(S)

VERSUS

THE STATE OF MANIPUR REPRESENTED BY THE COMMISSIONER (HIGHER AND TECHNICAL EDUCATION) GOVERNMENT OF MANIPUR & ANR. ....RESPONDENT(S)

JUDGMENT

Leave granted.

2. The appellants before us are eight retired Assistant Professors

and a College Librarian, also superannuated, from the State of

Manipur. All of them had superannuated between 28 th February

2006 and 31st July 2008. Subsequent to filing of the Petition for

Special Leave to Appeal, eleven teaching staffs from different colleges

in the same State have taken out an application for impleadment as

petitioners. They are allowed to intervene in this appeal. Signature Not Verified Digitally signed by

3. Rajni Mukhi Date: 2022.04.01 18:02:37 IST Decision was taken by the Government of India to revise the pay Reason:

scales of teachers and equivalent cadres in the central universities

1 and this was communicated by the Government of India to the

University Grants Commission by a letter of 31 st December 2008. The

revised scales as per 6th Pay Commission recommendation were to be

implemented by the State Governments as well. In the State of

Manipur, Manipur Services (Revised Pay) Rules, 2010 were framed in

exercise of power conferred under the proviso to Article 309 of the

Constitution of India on 5th May 2010. Such Rules were to cover those

appointed to Civil Services and posts in connection with the affairs of

that State and which were under the rule making control of the

Government of Manipur. Following the introduction of the Revised Pay

Rules, certain modifications were made in the Rules guiding pension

and allied benefits of those covered by the civil services rules in that

State. These modifications were made by an Office Memorandum

dated 5th May 2010 bearing no.9/3/2010­FD (PIC) (“O.M. of 5 th May

2010” in short) introduced by the Governor of Manipur. Though the

source of power for making such modifications was not spelt out in

the said memorandum, this was made in pursuance of the

Government’s decision and fits the characteristic of a Rule made

under proviso to Article 309 or an executive order made in terms of

Article 166 of the Constitution of India.

4. Clause 3.1 of the O.M. of 5th May 2010 stipulated:­

2 “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 data of retirement whichever is later, as the case may he, with cash payment/actual benefit from 01/04/2010. Separate orders have been issued in­respect of employees who retired/died before 01/01/2006.” (quoted verbatim from paperbook)

5. On 3rd June 2011 by way of an order issued in terms of the

proviso to Article 309 of the Constitution of India, certain revisions

of the scales of pay of different categories of posts in Government

Colleges under the Department of Higher Education and Technical

Education in the State of Manipur were mandated. This Order was

to come into force with effect from 1 st June 2006 and arrears for

the period from 1st November 2010 to 30th June 2011 were to be

deposited in the respective G.P.F. accounts of the employees.

Clause 6 of this Order stipulated:­

“6. Rules relating to pension, family pension, gratuity and encashment of leave, ex­gratia compensation, provident fund, etc. Shall be as applicable to other State Government employees.” (quoted verbatim from paperbook)

6. On 12th August 2011, another Order [bearing no.7(7)/32009­

HE(Misc.)Pt.(1)] was issued superseding the Order of 3 rd June 2011

in relation to different categories of college teachers (and equivalent

grades) specifying the revised scale of pay. Clauses 3, 7 and 8 of

this Order of 12th August 2011 read:­ 3 “3. These orders shall come into force nationally with effect from 01/01/2006 with monetary benefit from 01/11/2010 and actual case payment from 01/07/2011. The arrears for the period from 01/11/2010 to 30/06/2011 shall be deposited into their respective G.P.F 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.

…….

7. Rules relating to pension, family pension, gratuity and encashment of Leave salary/Leave of any kind, Ex­gratia Compensation, Provident Fund and New Pension Scheme no­ win force etc. shall be as applicable to other state Government employees.

8. For those College Teachers/Equivalent Grads who retired/superannuated between 01­01­2006 and 31­ 10­2010, Pension shall be calculated on the basis of notional pay and AGP in the revised pay.” (quoted verbatim from the paperbook)

7. On 24th December 2011 the State Government issued a

further Office Memorandum contemplating certain clarifications to

the department’s Order dated 12 th August 2011. The areas of

doubt and the clarifications given thereto, to the extent these are

relevant for adjudication of this appeal, as specified in the said

Office Memorandum of 24th December 2011 were:­

“Sl. Points of doubts Clarification No. (1) (2) (3)

Para 3 of the order under It is clarified that reference, relates to pension/Family deposit of arrear pay and Pension/Retirement allowances for the period Gratuity/Death from 01.11.2010 to Gratuity/Commutation 4 30.06.2011 into GPF of Pension/Leave account actual cash Encashment of those payment from 01.07.2011 college teachers who and release of arrear pay retired/diet in harness and allowance of certain during the period from categories of employees for 01.01.2006. to the period from 30.06.2011 shall be 01.11.2010 to 30.06.2011 calculated on the basis in 2(two) equal of the notional pay w.e.f.

installments. However 01.01.2006 or from the Provisions for release of date of retirement or pension and other death whichever is later retirement benefits w.e.f. or on the basis of the 01.11.2010 or 01.07.2011. actual emolument In respect of those college drawn in the pre­revised teachers who retired pay scales whichever is during the period more beneficial to the 01.01.2006 to 31.10.2010 incumbent. The and 01.11.2010 to difference of amount 30.06.2011 were not between the pre revised mentioned in the order rate and the revised under reference. Decision ratene time payment, of the Government on the like, Retirement, point under reference is Gratuity/Death required. Gratuity/Leave Encashment, if found Further referring to more beneficial, shall para 8 of the order under also be paid. Actual reference, for those college teachers/equivalent benefit of increased grades who retired/ Pension/Family superannuated between Pension on account of 01.01.12006 to revision shall be paid 31.10.2010, as to whether from 01.11.2010. their retirement gratuity will be revised or not may In the case of also be clarified. Further, commutation of in respect of those college Pension, benefit will be teachers/equivalent given on the basis of Grades who expired additional amount of during the period. Under pension.” reference as to whether their family pension/DG will be revised or not, may also be clarified. (Emphasis added)

5

8. The dispute involved in this appeal is as to whether the

appellants, as retired staffs from different colleges, are to get the

benefits of revised pension from the date given in the Office

Memorandum of 24th December 2011 or from 1 st April 2010, the

latter date being made applicable to those retired from various state

services. The State Government wanted to implement revised

pension from 1st November 2010. The appellants invoked the writ

jurisdiction of the Manipur High Court, staking their claim for

revised pension with effect from 1 st April 2010. The Single Judge

allowed the writ petition by a judgment delivered on 30 th October

2015. It was, inter­alia, opined in that judgment:­

“12. 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.

13. 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 pensioary benefits w.e.f. 1.4.2010 and other

6 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.” (quoted verbatim from the paperbook)

9. The State Government were successful in their appeal before

the Division Bench of the High Court. The Division Bench, in the

judgment under appeal, decided on 27th January 2017, held:­

“[11] It be stated that pursuant to recommendation made by University grants commission and also upon resolution being taken by Ministry of Human Resources, Govt. of India relating to revision of pay, the Government of Manipur came with the revision of pay of the college teachers vide notification dated 12.8.2011. The said order relating to revision of pay scale as per clause 3 of the said notification notionally came into effect from 1.1.2006 with monetary benefit from 1.11.2010 and actual cash payment from 1.7.2011. The arrears for the period from 1.11.2010 to 30.6.2011 was stipulated to be deposited in the GPF Accounts whereas OM dated 5.5.10 was issued in the wake of revision of provisions relating to regulation of pension etc. on account of introduction of the Manipur Services (Revised Pay) Rules 2010. The clause 3.1 does stipulate that provision of it would come into effect from 1.1.2006 and monetary benefit was to be paid from 1.4.2010.

Thus, it is evident that consequent upon revision of salary by virtue of Manipur Services (Revised Pay) Rules,2010 applicable only in case of State Govt. employees the said Office Memorandum dated 5.5.10 dealing with the provision regulating revised pension was required to be issued necessarily stipulating therein about monetary benefit being 7 paid from 1.4.2010. The provision relating to enforceability of the Office Memorandum and payment of monetary benefit on account of revision of pay was confined to the Government employees who were being governed by the Manipur Services (Revised Pay)Rules, 2010 whereas the notification dated 12.8.2011 relating to revised scale of pay of the college teachers was issued by the State Govt. upon acceptance of the recommendation of the UGC and Govt. of India and therefore the University teachers would be governed by the stipulation made in that notification which speaks about the monetary benefits being given to them w.e.f. 1.11.2010. The said stipulation has nothing to do with the matter relating to pension for the reason that monetary benefit which was to be given from 1.11.2010 may be related to persons in service and even the persons who got retired. However, if the proposition laid down by the learned single Judge is accepted, a situation which would be quite anomalous would come up whereby the teachers who are in service would be entitled to monetary benefit only w.e.f. 1.11.2010 whereas the retired employees would be getting monetary benefit from 1.4.2010. It be reiterated that dispute is with respect to the date from which teachers of the Universities/colleges will be entitled to have monetary benefits, which dispute never pertains to any rules relating to the pension and thereby there happens to be no applicability of any of the provisions of the OM dated 5.5.2010 whereby provision relating to pension was revised.

[12] Under the circumstances, the learned single Judge by resorting to the provisions under the Office Memorandum dt. 5.5.2010 wrongly held that the petitioners would be entitled to monetary benefit w.e.f. 1.4.2010 and thereby order dated 30.10.2015 is hereby set aside. Consequently, it is held that the petitioners are entitled to have monetary benefit w.e.f. 01.11.2010 and not w.e.f. 1.4.2010. Accordingly, this appeal stands allowed.”

10. Mr. Ngangom Junior, learned Advocate appearing for the

appellants, has argued that his clients had migrated to the pension

regime created for the State Government employees, which was

guided by an Order issued by the Governor in pursuance of the

decision of the State Government. As we have already discussed

earlier in the judgment, power to issue such Order can be traced to 8 both Article 166 as also proviso to Article 309 of the Constitution of

India. It is not of much significance under which Article the Rules

or Order was issued as in either case, the legal instrument would

be endowed with statutory strength. We have already quoted

Clause 3.1 of the amended Manipur Civil Services (Pension) Rules,

1977 in the earlier part of this judgment. It is not in dispute that

the appellants had retired after 1st June 2006. The main argument

of the appellants has been that since their pension entitlement was

covered by a Rule made under proviso to Article 309 of the

Constitution of India, the Office Memorandum dated 24 th December

2011 could not alter the benefits that the appellants became

entitled to under the aforesaid statutory instrument. The stand of

the State Government, represented by Mr. Sanjay R. Hegde, learned

Senior Advocate, is that the revision of pay scales covers

superannuated persons from different services under the State

Government including those within the education department

itself. His contention is that even after the appellants migrated to

the 2010 Rules, they could not claim benefit different from, and

more than that the serving staffs of the department from which

they originated was enjoying. It has been pointed out that the

Order of 12th August 2011 superseded the Order of 3 rd June 2011

9 revising pay of college teachers and we have already reproduced

Clause 8 of this Order.

11. It has been emphasised on behalf of the State of Manipur that

the Order of 12th August 2011 is not under challenge. It has also

been argued on behalf of the State that the appellants who were

employed in the Technical and Higher Education Department of the

Government of Manipur enjoy pay scales and pensions higher than

that of Government employees or those engaged in judicial services

in the State of Manipur. On that count, it is urged that their

benefits cannot be equated with those of the original employees

appointed under the Manipur State Government Service Rules. The

judgment under appeal is also sought to be defended on the ground

that members from different services under the Government of

Manipur were receiving revised pay from different dates. It has also

been asserted that the Office Memorandum of 24 th December 2011

is only a clarificatory order and the original Order of 12 th August

2011 was never assailed by the appellants. Various Cabinet

decisions as regards implementation of revision of pay orders were

brought to our notice but we need not go into these Cabinet

decisions in detail. In this appeal, we are concerned with the

legality of the content of the Office Memorandum of 24 th December

10 2011 to the extent that the same shifts the date of getting actual

benefit of pension/ family pension on account of revision from 1 st

April 2010 to 1st November 2010.

12. The Order of 12th August 2011 has been issued in the name of

the Governor of the State of Manipur. On the rationale we have

explained earlier, it can qualify for being an executive order in the

terms of Article 166 of the Constitution of India as also a Rule

made under proviso to Article 309 of the Constitution of India. But

this Order of 12th August 2011 does not lay down any specific

stipulation for the retired college teachers or those holding

equivalent grades barring clauses 7 and 8 thereof, to which we

have referred to earlier in this judgment. These clauses also do not

specify the date from which revised pension is to be payable to the

retirees. Clause 8 specifies the manner of computation of pension

for those who superannuated or retired between 1 st January 2006

and 31st October 2010. Clause 7 on the other hand relates to the

pension Rules to be applicable as in the cases of other State

Government employees. Therefore, so far as the appellants are

concerned, their migration into the regime of the 2010 Rules meant

for State Government employees and their entitlement to revised

pension from a date applicable to the State Government employees

11 has not been excluded by the Order of 12 th August 2011 made by

the Governor of Manipur, either expressly or by implication.

13. So far as the State Government’s employees are concerned,

the revisions of provisions regulating pension and ancillary

conditions were guided by O.M. of 5 th May 2010. The subject

covered by this memorandum would appear from the following

clauses thereof:­

“No.9/3/2010­FD(PIC) : The undersigned is directed to say that in pursuance of Government’s decision following the introduction of the Manipur Services (Revised­Pay) Rules, 2010, the Governor of Manipur is pleased to introduce the following modifications in the rules regulating Pension, Retirement / Death / Service Gratuity / Family pension / Disability Pension under the Manipur Civil Services (Pension) Rules, 1977 (hereafter referred to as Pension Rules), Commutation of Pension under the Manipur Civil Services (Commutation of Pension) Rules, 2010 and the Manipur Services (Extraordinary Pension) Rules, 1995.

2. These orders apply to State Government Employees governed by the Manipur Civil Services (Pension) Rules, 1977.” (quoted verbatim from paperbook)

14. No distinction is made in Clause 3.1 of the O.M. of 5 th May

2010 between different categories of employees, on which

distinction Mr. Hegde has emphasised in his arguments. Thus,

once the appellants migrate into the Rules guiding other State

Government employees, the appellants’ service origins become

insignificant so far as application of substantive part of the

aforesaid revision of Pension Rules is concerned. As we have 12 already discussed, Clause 8 of the Order dated 12 th August 2011

also does not contemplate special treatment for superannuated

staff of higher educational institutions in the State of Manipur to

correlate them with the existing staff of their original service for the

purpose of date of implementation of the revised pension. Thus, the

quantum of pension the appellants would receive vis­à­vis retirees

from other services in the State of Manipur would not have impact

on the point of law we are examining in this appeal. We are testing

in this appeal if the Order passed on 24 th December 2011 could

postpone the date of entitlement of revised pension to 1 st November

2010 for the appellants.

15. The Office Memorandum of 24 th December 2011 is in the

nature of an administrative order. This Office Memorandum has

not been made and executed in the name of the Governor. But this

Office Memorandum seeks to take away substantive right of the

appellants cemented under Government Order made on 12 th

August 2011, read in continuation with the Orders of 5th May 2010

and 3rd June 2011. In our opinion, the course of action sought to

be adopted by the State is impermissible. In terms of Clause 3.1 of

the O.M. of 5th May 2010, the appellants have acquired a vested

right to get revised pension from a date which is applicable to the

13 retired State Government employees. The appellants have been

placed in the said pension regime, and this has been recognised by

Clause 7 of the Order of 12th August 2011.

16. We are unable to agree with the main reasoning of the

Division Bench that by giving the appellants the benefit of revised

pension with effect from 1st April 2010 an anomalous situation

would arise as serving staff(s) of higher educational institutions

could be getting the benefit of such revision from 1 st November

2010. The State has made conscious decision to delink the retirees

from the service conditions guiding the serving staffs of the

concerned institutions and placed them in the retirement rules

meant for those in the Manipur State Service. In such a situation,

we do not think the anomaly pointed out in the judgment under

appeal could be the guiding factor for fixing the date of entitlement

to revised pension benefits specified by the Service Rules. The

Office Memorandum of 24th December 2011 though projected as an

instrument to clarify a subsisting anomaly to an Office

Memorandum having statutory strength, in reality encroaches

upon acquired or vested right of the retirees to get such benefit

from 1st April 2010. Such “clarificatory order” cannot be permitted

to override an Order having statutory strength. We accordingly hold

14 that the appellants shall be entitled to receive revised pension with

effect from 1st April 2010, considering the provisions of Clause 7 of

the Order of 12th August 2011. The Office Memorandum of 24 th

December 2011 would not have any binding effect so far as

entitlement of the appellants to receive revised pension from 1 st

April 2010 is concerned.

17. Under the circumstances, the judgment under appeal is set

aside. We restore and affirm the judgment of the Single Judge

dated 30th October 2015.

18. The appeal is accordingly allowed.

19. Pending application(s), if any, shall stand disposed of.

20. There shall be no order as to costs.

……………………………….J. (VINEET SARAN)

……………………………….J. (ANIRUDDHA BOSE)

New Delhi;

March 31, 2022 15