Union Of India vs Dr. O.P. Nijhawan

Central Administrative Tribunals. The Central

Administrative Tribunal, Principal Bench as well as

different other benches of Central Administrative

Tribunals have allowed the original applications filed

by respondents herein, who have been working as

Scientists in Department of Defence Research and

Development Organisation, Department of Atomic Energy

and Department of Space, all under Ministry of Defence.

The Union of India has sanctioned special pay of

Rs.2,000/- w.e.f. 01.01.1996 and Rs.4,000/- w.e.f.

01.01.2006 to the Scientists working in the above

mentioned three departments.

2. Original applications were filed by the

respondents herein claiming direction to the Union of

India and others for reckoning the special pay for

pension and pensionary purpose. The respondents in

this batch of appeals had been working in the

Department of Defence Research and Development

Organisation, Department of Atomic Energy and

7 Department of Space. The issues raised before the

Central Administrative Tribunals by the respondents/

Scientists working in the above mentioned three

departments and the reliefs claimed therein were

similar in nature and Principal Bench of Central

Administrative Tribunal and other benches had allowed

the claim for treating the above special pay for

pensionary benefits. The High Courts have also

dismissed the writ petitions where the orders of

Central Administrative Tribunals were challenged.

Union of India being aggrieved by the said judgments

have come up in these appeals.

3. Issues raised by Scientists of above mentioned

three departments being the same, it shall be

sufficient to notice the pleadings in Civil Appeal No.

12040 of 2018 – Union of India & Ors. Vs. Dr. O.P.

Nijhawan & Ors. for deciding this bunch of appeals,

which is being treated as leading appeal.

4. We now proceed to notice the facts in Civil Appeal

No. 12040 of 2018 – Union of India & Ors. Vs. Dr. O.P.

Nijhawan & Ors.

8

5. The respondents Dr. O.P. Nijhawan and others were

serving as Scientists ‘G’ in the Defence Research &

Development Organisation (hereinafter referred to as

“DRDO”), Ministry of Defence from where they retired

from service. Scientist ‘G’ of DRDO were working in

the scale of Rs.5900-7300 along with

Scientist/Engineers-H working in the Department of

Atomic Energy (hereinafter referred to as “DAE”) as

also Department of Space (hereinafter referred to as

“DOS”). The Fifth Central Pay Commission recommended

a common revised pay scale of Rs.18400-22400 for the

pay scales of Rs.5900-7300 and Rs.5900-6700. The scale

given to Scientific Officer H and Scientists ‘G’ were

merged in common scale by Fifth Central Pay Commission

Scales and under Sixth Central Pay Commission scale of

Rs. 18400-22400 was revised as Rs.37400-67000. The

Scientists of the aforementioned three Scientific

Departments, i.e. DRDO, DOS and DAE made a case for

suitably compensating the Scientists/Engineers in the

pay scale of Rs. 5900-7300 (pre-revised). Consequent

to Peer Review, the Government of India, Ministry of

Defence decided to sanction special pay of Rs. 2,000/- 9 per month to the Scientists in the pay-scale of Rs.

18,400-22400 in lieu of a separate higher pay scale.

An Order dated 03.02.1999 was issued by all the three

above Departments. The Order dated 03.02.1999

sanctioned the above pay scales from 01.01.1996.

6. An order dated 14.05.1999 was issued by Ministry

of Defence, DRDO intimating that a proposal to pay

special pay as part of pay as defined under Fundamental

Rule 9(21) for all purposes is being taken up

separately with Ministry of Defence, further

instructions in this regard will be issued after

obtaining the approval of the Ministry. Government of

India, DOS issued an order dated 12.08.1999, where it

was mentioned that special pay will not be treated as

part of pay for the purposes like DA, HRA, pension etc.

The Original Application No. 1135 of 2002 was filed by

Scientists working in the Department of Space

questioning the clarificatory order issued by O.M.

dated 12.08.1999 regarding non-inclusion of special pay

as part of the pension. The Principal Bench of Central

Administrative Tribunal, Delhi allowed the OA by order

10 dated 14.05.2003 holding that special pay of Rs.2,000/-

per month w.e.f. 01.01.1996 shall be treated as part

of pay for the purposes of pensionary benefit. The

Department of Space has also issued a consequential

order dated 11.07.2003 modifying its earlier order

dated 12.08.1999 to the effect that special pay will

not be treated as part of pay for the purposes of D.A.

but the same may be treated as part of pay for the

pensionary benefits w.e.f. 01.01.1996. On 13.07.2004,

DAE relying on the order of the Central Administrative

Tribunal under O.A. No. 1153 of 2002 extended the

benefit of special pay of Rs.2,000/- for pensionary

benefit. The Scientists working in the DRDO had also

filed O.A. No. 184 of 2006 praying that special pay of

Rs.2,000/- be treated for the purposes of pension,

which O.A. was allowed by order dated 29.03.2007

holding that special pay shall also be treated for

pensionary benefit. The Union of India filed a Writ

Petition No. 267 of 2008 against the judgment of

Central Administrative Tribunal, Hyderabad dated

29.03.2007, which writ petition was dismissed by the

High Court of Andhra Pradesh by its judgment dated

11 25.09.2008. A SLP (C) No. 4842 of 2009 was filed

against the judgment of High Court of Andhra Pradesh

at Hyderabad, which was dismissed by this Court on

29.04.2009 by following order:-

“ Heard.

Delay condoned.

On the facts of the present case, we are not inclined to interfere with the impugned judgment and order. The special leave petition is dismissed. However, the question of law is left open.”

7. The Ministry of Defence, DRDO issued an order dated

13.05.2009, which provided that special pay of

Rs.2,000/- per month granted to Scientist in the pay

scale of Rs.18400-22400 w.e.f. 01.01.1996 and special

pay of Rs.4,000/- per month to Scientist in pay band-4

(Rs.37400-67000) with Grade Pay of Rs.10,000/- per

month w.e.f. 01.01.2006 is to be counted for pension

and pensionary benefits. It is to be noted that special

pay of Rs.2,000/- was increased as Rs.4,000/- w.e.f.

01.01.2006. The respondent Dr. O.P. Nijhawan and

others filed an O.A. No. 1750 of 2012 before Central

Administrative Tribunal, Principal Bench, New Delhi

complaining that although by order dated 13.05.2009 12 sanction of the President to count special pay of

Rs.2,000/- per month granted to Scientists in the pay

scale of Rs.18400-22400 w.e.f. 01.01.1996 and special

pay of Rs.4,000/- per month to Scientist in pay band-4

(Rs.37400-67000) with Grade Pay of Rs.10,000/- per

month w.e.f. 01.01.2006 for pension and pensionary

benefits, the said order has not been implemented. It

was further pleaded that several Scientists who have

filed cases before Hyderabad Bench, Bangalore Bench and

Principal Bench, New Delhi, where orders were issued,

consequently with regard to certain Scientists of that

grade, the order was implemented but still with regard

to the applicants, the benefit has not been extended.

It was pleaded that grant of similar benefit to some

colleagues of applicants and not extending the said

benefit to them is arbitrary and discriminatory. The

respondents herein prayed for direction to the

respondents in O.A. to revise the pension and

pensionary benefits of the Scientists ’G’ of DRDO in

terms of their own order dated 13.05.2009. It was also

prayed that respondents be directed to pay arrears of

pension and pensionary benefits to the applicants

13 taking into account Rs.2,000/- or Rs.4,000/- as special

pay and also interest, if revision of pension and

pensionary benefits taken unduly long period. The

Central Administrative Tribunal, Principal Bench, New

Delhi allowed the O.A. No. 1750 of 2012 vide its

judgment dated 22.01.2013 and issued following

directions:-

“(1) The claim of the applicants are allowed for reckoning the special pay of Rs.2,000/- admissible from 01.01.1996 and Rs.4,000/- admissible from 01.01.2006 in the respective grade pays as enumerated in the OM dated 13.05.2009 for pension and pensionary purposes.

(2) It is further directed that those who fall within the eligible categories as cited above are to be allowed this benefit without their being required to approach this Tribunal.

(3) This, of course, is a measure of exception and leaves the question of law undetermined.”

8. Against the judgment and order of the Tribunal

dated 22.01.2013, Union of India filed a Writ Petition

No. 3095 of 2014 in the Delhi High Court, which writ

petition has also been dismissed by the Division Bench

vide its judgment dated 18.07.2014. Civil Appeal No.

12040 of 2018 – Union of India & Ors. Vs. Dr. O.P.

14 Nijhawan & Ors. has been filed against the judgment of

Delhi High Court dated 18.07.2014.

9. As noted above, most of other appeals in this bunch

has been filed against the judgment of the Central

Administrative Tribunal, Principal Bench, New Delhi and

other Benches, wherein, the Central Administrative

Tribunal has granted same relief to the Scientists

working in the Departments of DRDO, DAE and DOS.

10. We have heard Ms. Pinky Anand, learned Additional

Solicitor General for India and Colonel Mr.

Balasubramanian for the appellants. Shri Nidhesh

Gupta, learned senior counsel as well as several other

learned advocates appearing for respondents in

different appeals have also been heard.

11. Learned counsel for the appellants submits that

judgments and orders passed by the Central

Administrative Tribunals and the High Court are in

teeth of Rule 9(21)(a)(i) of the Fundamental Rules and

Rule 33 of the Central Civil Services Pension Rules,

1972 (hereinafter referred to as “1972 Rules). The

15 definition of pay as contained in Fundamental Rule

9(21)(a)(i) clearly excludes “special pay” from the

definition of pay, hence the “special pay” of

Rs.2,000/- w.e.f. 01.01.1996 and Rs.4,000/- w.e.f.

01.01.2006 cannot be included in pay, hence has to be

excluded from the definition of emoluments as defined

in Rule 33 of 1972 Rules. The judgment of Central

Administrative Tribunals as well as the High Court

holding that special pay is to be included for

computation of pension cannot alter the legal position,

the language of a Statute, i.e. Rule 9(21)(a)(i), which

is clear and unambiguous. Further the fact that

against the earlier order passed by Central

Administrative Tribunals and the High Court, writ

petitions and SLPs filed by Union of India were

dismissed, shall not alter the legal position. The

Special Leave Petitions were dismissed in limine and

this Court in one of the Special Leave Petitions has

expressly left the question of law open. Further the

fact that in number of other similarly situated

Scientists, the order passed by the Central

Administrative Tribunals/High Courts have attained

16 finality and have also been implemented by the Union

of India, cannot preclude this Court from deciding the

question of law left open. Reliance was placed on the

judgment of this Court in Col. B.J. Akkara (Retd.) Vs.

Government of India and Others, (2006) 11 SCC 709. It

is submitted that there is huge financial implication

on the Union of India due to the orders passed by the

Central Administrative Tribunals and High Courts. It

is lastly submitted that Seventh Central Pay Commission

has discontinued the special pay to the Scientists,

which Resolution has been notified by Notification

dated 01.07.2017.

12. Learned counsel for the respondents refuting the

submission of appellants contends that the special pay

of Rs.2,000/- w.e.f. 01.01.1996 was granted in lieu of

a separate high pay scale, which is clear from the

order dated 03.02.1999 sanctioning the special pay,

hence, it was not in the nature of special pay as

defined in Fundamental Rule 9(25), thus, was not

eligible for exclusion from the definition of pay as

contained in Rule 9(21)(a)(i). Only special pay, which

17 is covered within the definition of Fundamental Rule

9(25) deserves to be excluded from the definition of

pay. Thus, the special pay of Rs.2,000/- granted to

the respondents in lieu of a separate higher pay scale

is eligible for computation of pensionary benefits and

the Central Administrative Tribunals and the High

Courts have not committed any error in allowing the

claim of the respondents. Further, the relief to the

respondents have been granted since similarly situated

respondents have already been granted the benefit by

the Union of India itself. Non-inclusion of special

pay of Rs.2,000/- or Rs.4,000/- for computation of

pension shall be depriving the respondents of the right

of pension, which they have earned by rendering

valuable services to Union.

13. We have considered the submissions of the learned

counsel for the parties and have perused the records.

14. From the pleadings on the record and the

submissions made by the learned counsel for the

parties, following issues arise for consideration in

this batch of appeals:-

18

(i) Whether the appellants are precluded to

question the impugned judgment of Central

Administrative Tribunals/High Courts

directing for inclusion of special pay of

Rs.2,000/- or Rs. 4,000/- for computation of

pension, since at earlier stages, similar

orders passed by Central Administrative

Tribunals/High Courts have attained finality

due to dismissal of Special Leave Petitions

filed by the Union of India?

(ii) Whether the Orders issued by the Union of

India implementing the orders by giving

effect to the decisions of the Central

Administrative Tribunals and High Court

directing for inclusion of special pay of

Rs.2,000/- or Rs.4,000/- in computation of

pension, the Union of India is

precluded/estopped from questioning the

earlier decisions?

(iii) Whether special pay of Rs.2,000/- or

Rs.4,000/- sanctioned to the Scientists in

Departments of DRDO, DAE and DOS w.e.f.

19 01.01.1996/01.01.2006 respectively has to be

included in the definition of pay as

contained in Rule 9(21)(a)(i) for the

purposes of computation of pensionary

benefit under 1972 Rules?

15. Before we enter into the respective submissions of

the learned counsel for the parties on the above

issues, it is necessary to look into the statutory

provisions pertaining to computation of pension and

some of the orders issued by the Union of India.

16. Rule 9(21)(a)(i) of the Fundamental Rules defines

“Pay”, which is as follows:-

(21) (a) "Pay" means the amount drawn monthly by Government servant as-

(i) the pay, other than special pay or pay 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 reason of his position in a cadre, and

(ii) overseas pay, special pay and personal pay, and

20

(iii) any other emoluments which may be specially classed as pay by the President.

17. The special pay has been defined in Fundamental

Rule 9(25), which is to the following effect:-

(25) "Special Pay" means 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.

For orders regarding grant of Special Pay to various categories of Government servants and treatment thereof for the purpose of fixation of pay on promotion, see Appendix-8 in this Compilation.

For orders regarding grant of Special Pay in the name of Deputation (Duty) Allowance on the transfer of Central Government servants to other Government Departments, Companies, Corporations, etc., see Appendix- 5 in this Compilation.

18. The payment of pension to the Central Government

employees is regulated by Central Civil Services

Pension Rules, 1972. Rule 33 of the 1972 Rules defines

emoluments, which is to the following effect:-

21

33. Emoluments

[The expression `emoluments' means basic 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 the date of his death; and will also include non-practising allowance granted to medical officer in lieu of private practice.]

[EXPLANATION. - Stagnation increment shall be treated as emoluments for calculation of retirement benefits.]

xxxxxxxxxxxxxxxxxxxxx

19. As noted above, under Fourth Central Pay

Commission, Scientists ‘G’ were receiving pay scale of

Rs.5900-6700 and Scientists ‘H’ were getting pay scale

of Rs. 5900-7300. On implementation of Fifth Central

Pay Commission, both the above pay scales were merged

into a single pay scale of Rs.18400-22400 and were

designated as Scientific Officer ‘H’. On peer review,

recommendation was made to sanction of special pay of

Rs.2,000/- w.e.f. 01.01.1996. An order dated

03.02.1999 was issued in this regard, relevant portion

of the order is as follows:-

“NO. DRDO/US101-A/V CPC/MPD/D (R&D) GOVERNMENT OF INDIA DEPARTMENT OF DEFENCE RESEARCH & DEVELOPMENT NEW DELHI

22 03 Feb 1999

To, The Director General Research & Development, Defence Research & Development Organization, Ministry of Defence, New Delhi.

Subject:- INCENTIVES FOR SCIENTISTS

The undersigned is directed to state that the question of providing incentives to scientists in the Department has been examined by the Govt. keeping in view the role played by them in the development of high technology and systems for strategic applications. Taking all relevant factors into account and in order to attract, retain, inspire and motivate scientists to give their best contributions. The President is pleased to sanction following:-

2. With effect from Jan 01, 1996

(1) Special pay of Rs.2,000/- p.m. to scientists in the pay scale of Rs.18,400-

22,400, in lieu of a separate higher pay scale, after peer review.

xxxxxxxxxxxxxxxxxx”

20. As noticed above, there were certain

clarifications issued by different office memorandum

for example, office memorandum dated 12.08.1999 issued

by Government of India, Department of Space that

special pay will not be treated as part of pay for the

purposes like, DA, HRA etc., which led filing of 23 original applications in the Central Administrative

Tribunal questioning the clarificatory order issued by

the Government of India and Central Administrative

Tribunal had allowed the claim of Scientists to reckon

the special pay for the purpose of pension. The

Government of India, Ministry of Defence, DRDO has

specifically issued an order dated 13.05.2009, where

the Government decided to count the aforesaid special

pay for pension and pensionary benefits. Office

memorandum dated 13.05.1999 is to the following

effect:-

“Tele: 23007252 No. CHRD83101/Incentives-6th CPC/C/P/01

Ministry of Defence, Defence Research & Development Org Dte of Human Resource Development ‘B’ Block, DRDO Bhawan New Delhi – 110 105.

13th May 2009

The Director (All Labs/Estts)

Subject: INCENTIVES FOR SCIENTISTS – COUNTING OF SPECIAL PAY FOR PNEIONSARY PURPOSES.

A copy of GOI, Ministry of Defence letter No. DHRD/85101/INCENTIVES/VI- CPC/C/P/01/1376/2009/D(R&D) dated 13 May, 24 2009 on the above subject is forwarded herewith.

2. As per the above Govt, letter the special pay of Rs.2,000/- p.m. granted to Scientist in the pay scale of Rs.18400-22400 w.e.f. 01 Jan 1996 and special pay of Rs.4,000/- p.m. to Scientist in Pay Band-4 (Rs.37400-67000) with Grade Pay of Rs.10,000/- p.m. w.e.f. 01 Jan 2006 is to be counted for pension and pensionary benefits.

3. It is requested that the necessary action may be initiated to revise the PPO of all the Scientists ‘G’ who have retired / superannuated accordingly.

Sd/-

(T. Chandra Banu) Additional Director, HRD For DGR&D

xxxxxxxxxxxxxxxxxx”

21. As noted above, relying on the said memorandum,

the respondents have filed original applications

claiming that with regard to them, the orders have not

been implemented and they have been denied computation

of special pay for purposes of pension, which claim was

ultimately allowed by the Central Administrative

Tribunal vide its order dated 22.01.2003 against which

order, Delhi High Court has dismissed the writ

25 petition, which led in filing the Civil Appeal in the

leading case by the Union of India.

22. We now take up first and second issue together.

There are two aspects, which need to be noticed in

respect of above issues. Firstly, original

applications filed by Scientists similarly situated was

allowed by Central Administrative Tribunal against

which few of the writ petitions were also dismissed by

the High Court and against the judgment of the High

Court or the Central Administrative Tribunals, matter

was carried by Union of India in this Court where SLPs

were dismissed. One of the orders passed by this Court

in SLP (C) No. 4842 of 2009 has been brought as Annexure

P1 in leading Civil Appeal. In order dated 20.04.2009,

this Court held “On the facts of the present case, we

are not inclined to interfere with the impugned

judgment and order. The special leave petition is

dismissed. However, the question of law is left open.”

There were few other SLPs filed by the Union of India,

which were dismissed in limine. SLPs having been

dismissed in limine, the appellants are not precluded

26 from raising the issues, which have been sought to be

raised in these appeals in this Court. This was also

the consequences of the question of law being left open

by this Court as noticed above. We, thus, are not

persuaded to accept the submission of learned counsel

for the respondents that Union of India is precluded

from raising the issues on question of law, which was

earlier left open by this Court. Thus, we have to

proceed to decide the question of law as raised by the

appellants. Coming to the second aspect of the matter,

i.e. the appellants itself having decided to extend the

benefit of special pay for computation of pension,

whether it is still open for the appellants to raise

the issue? We have already noticed the order dated

13.05.2009 of Government of India, which had directed

for counting of special pay for pensionary purposes.

We have already noticed that in the year 1999 itself,

a clarificatory order was issued by the Union of India

that special pay shall not be treated as a part of pay

for the purposes of pension. The above stand, it

appears, was taken by the Government relying on the

definition of pay as given under Fundamental Rule

27 9(21)(a)(i), thereafter came various orders of the

Central Administrative Tribunals as noticed above,

where direction was issued to compute by adding the

special pay in the pay for computation of pension,

details of which, we have already noticed above. The

Government of India having already implemented the

aforesaid orders can it still question its own

decision, where the benefit has been extended.

23. Learned counsel for the appellants has relied on

judgment of this Court in in Col. B.J. Akkara (Retd.)

Vs. Government of India and Others (supra). One of the

issues in the aforesaid case was Issue No.(iii) as

noticed in Paragraph No.10, which is to the following

effect:-

“10. On the contentions urged, the following questions arise for consideration:

xxxxxxxxxxxxxxxx

(iii) Whether the respondents having accepted and implemented the decision of the Delhi High Court [in K.C. Garg (Dr.) v. Union of India2] on a similar issue, are required to extend a similar treatment to Defence Service Medical Officers also, by cancelling the circular dated 11-9-2001.

28 xxxxxxxxxxxxxxxx”

24. By answering Issue No. (iii), following was laid

down in Paragraph Nos. 24, 25 and 26:-

“24. The respondents have filed an affidavit dated 1-8-2006 admitting that in pursuance of the decision of the Delhi High Court, the circular dated 29-10-1999 had been withdrawn but clarified that it was withdrawn only in regard to the Civilian Medical Officers who were petitioners in the said writ petitions and not in regard to all Civilian Medical Officers. It is contended that the fact that a decision of the High Court had been accepted or implemented in the case of some persons, will not come in the way of the Union of India resisting similar petitions filed by others in public interest.

25. A similar contention was considered by this Court in State of Maharashtra v.

Digambar, (1995) 4 SCC 683. This Court held:

(SCC p. 691, para 16)

“Sometimes, as it was stated on behalf of the State, the State Government may not choose to file appeals against certain judgments of the High Court rendered in writ petitions when they are considered as stray cases and not worthwhile invoking the discretionary jurisdiction of this Court under Article 136 of the Constitution, for seeking redressal therefor. At other times, it is also possible for the State, not to file appeals before this Court in some matters on account of improper advice or negligence or improper conduct of officers concerned. It is further possible, 29 that even where SLPs are filed by the State against judgments of the High Court, such SLPs may not be entertained by this Court in exercise of its discretionary jurisdiction under Article 136 of the Constitution either because they are considered as individual cases or because they are considered as cases not involving stakes which may adversely affect the interest of the State. Therefore, the circumstance of the non-filing of the appeals by the State in some similar matters or the rejection of some SLPs in limine by this Court in some other similar matters by itself, in our view, cannot be held as a bar against the State in filing an SLP or SLPs in other similar matter(s) where it is considered on behalf of the State that non-filing of such SLP or SLPs and pursuing them is likely to seriously jeopardise the interest of the State or public interest.”

26. The said observations apply to this case. A particular judgment of the High Court may not be challenged by the State where the financial repercussions are negligible or where the appeal is barred by limitation. It may also not be challenged due to negligence or oversight of the dealing officers or on account of wrong legal advice, or on account of the non-comprehension of the seriousness or magnitude of the issue involved. However, when similar matters subsequently crop up and the magnitude of the financial implications is realised, the State is not prevented or barred from challenging the subsequent decisions or resisting subsequent writ petitions, even though judgment in a case involving similar issue was allowed to reach finality in the case of others. Of course, the position would be viewed differently, if 30 petitioners plead and prove that the State had adopted a “pick-and-choose” method only to exclude petitioners on account of mala fides or ulterior motives. Be that as it may. On the facts and circumstances, neither the principle of res judicata nor the principle of estoppel is attracted. The administrative law principles of legitimate expectation or fairness in action are also not attracted. Therefore, the fact that in some cases the validity of the circular dated 29-10-1999 (corresponding to the Defence Ministry circular dated 11-9-2001) has been upheld and that decision has attained finality will not come in the way of the State defending or enforcing its circular dated 11-9-2001.”

25. The ratio as laid down by this Court in above case

is fully attracted in the facts of the present case,

thus, we conclude that the fact that appellant has

implemented the earlier orders passed by the Central

Administrative Tribunals and the High Courts and issued

order for including special pay in the pay for the

purpose of computation of pension, the Union of India

is not precluded to raise the issues again, the

principle of res judicata or estoppel are not

attracted.

26. Now, we come to the main issue, i.e. Issue No.

(iii). The submission which has been pressed by the

31 learned counsel for the respondent is that the special

pay of Rs.2,000/-, which was sanctioned by the office

memorandum dated 03.02.1999, although describes the

said amount of Rs.2,000/- as special pay but the real

nature of the aforesaid payment was not the special pay

as defined in Fundamental Rule 9(25). The said payment

was in lieu of a separate higher pay scale.

27. We revert back to meaning of special pay underlined

in Fundamental Rule 9(25) and as per the above rule,

special pay means “an addition, of the nature of pay,

to the emoluments of a post or of a Government servant”.

A special pay is one granted in consideration of (a)

the special arduous nature of the duties; or (b) a

specific addition to the work or responsibility.

28. Whether the amount of Rs. 2,000/- sanctioned as

special pay to the respondents were covered within the

definition of Rule 9(25) is a question to be answered.

When we look into the memorandum dated 03.02.1999,

there is categorical statement that the special pay of

Rs.2,000/- per month is sanctioned to scientists only

in the pay scale of Rs.18,400-22,400, in lieu of a 32 separate higher pay scale, after peer review. The

order does not indicate that it has been granted to the

Scientists due to specially arduous nature of the

duties; or specific nature/ work of the respondents.

The genesis for amount of Rs.2,000/- as special pay was

on account of the grievances raised by the Scientists

when two pay scales under Fourth Central Pay Commission

were merged into one pay scale by Fifth Central pay

Commission, i.e. Rs.18400-22400. Scientists, who were

in the pay-scale of Rs.6700-7300 had raised grievances

and it was on account of peer review that Government

sanctioned the special pay in lieu of a separate higher

pay scale. The memorandum dated 13.02.1999 was

obtained by preparing and submitting a Combined Cabinet

Paper to Cabinet Secretariat by all the three mentioned

departments to remove anomaly that belonged to all

scientists, who were in the (pre-revised) scale of

Rs.5900-7300 prior to Fifth Central Pay Commission and

were entitled to higher pay scale but were

intermittently merged with a lower pay scale at the

time of Fifth Central Pay Commission. If the genesis

of sanction dated 13.02.1999 is taken to its true

33 import, it is clear that the said sanction or extension

of benefit does not fit in the definition of special

pay as contained in Fundamental Rule 9(25), rather it

was to redeem the pay structure anomaly. Subsequent

interpretation and decision taken by the Union of India

for not giving the benefit of amount of special pay of

Rs.2,000/- in definition of pay was by picking up the

word “special pay” as occurring in office memorandum

dated 03.02.1999.

29. The definition of Fundamental Rule 9(21)(a)(i)

clearly excludes following two from the definition of

pay, i.e., (i) the special pay or, (ii) pay granted in

view of his personal qualifications. The special pay

as occurring in Fundamental Rule 9(21)(a)(i) has to

take colour from the definition of special pay as

contained in Rule 9(25). The special pay as defined

in Rule 9(25) is sanctioned to a Government servant or

to a post looking to the special arduous nature of the

duties or a specific addition to the work or

responsibility, which is related to essentially

performance of duties and specific addition to the

34 work. The second exclusion, i.e., it is granted in

view of professional qualifications also indicate that

the special pay is only taking into consideration the

personal qualifications of a person. Thus, special pay

is in recognition of aforesaid factors and for

compensating in the above circumstances. Special pay

is granted for specific purposes and in response to

specific situation and circumstances. Thus, there is

a rational for excluding special pay from the pay as

defined in Rule 9(21)(a)(i) but the special pay granted

by office memorandum dated 03.02.1999 to the

respondents was not in any of the circumstances as

mentioned in Rule 9(25). Rather the said benefit of

Rs.2,000/- was in lieu of a separate higher pay scale.

It is, thus, clear that grant of special pay of

Rs.2,000/- was in lieu of a separate higher pay scale,

which does not fit in the nature of special pay as

contemplated by Rule 9(25). Thus, the addition as

granted by office memorandum dated 03.02.1999 also does

not fit in the special pay, which is excluded from the

definition of pay given under Rule 9(21)(a)(i). Thus,

addition of benefit of Rs.2,000/- w.e.f. 01.01.1996

35 styled as special pay has to be included in the

definition of pay given under Rule 9(21)(a)(i) looking

to the true nature and character of the benefit, which

was extended to Scientists on the basis of peer review.

We, thus, do not find any infirmity in the decisions

of the Central Administrative Tribunals or High Courts

holding that the amount of special pay of Rs.2,000/-

w.e.f. 01.01.1996 and Rs.4,000/- w.e.f. 01.01.2006 to

be treated as part of pay for the basis of computation

of pension. For the reasons as mentioned above, we,

thus, do not find any merit in these appeals, which are

accordingly dismissed.

......................J. ( ASHOK BHUSHAN )

......................J. ( L. NAGESWARA RAO )

New Delhi, January 03, 2019.

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