the petitioner is deemed to have opted for commutation of only 1/3rd of his pro rata pension as per the rules. Consequently, the respondents would have to redo the exercise of working out his pensionary benefits right from the start. In accordance with such option, the respondents shall work out the commuted pension payable initially and upon revision, the regular pension payable after such commutation initially and upon revision, the amount payable after restoration of the commuted pension and all the arrears. As the petitioner received certain amounts in excess of the amounts due and payable to him, he would necessarily have to refund the same. Such amounts would therefore have to be adjusted against the final amount calculated to be due and payable to the petitioner pursuant to this order. The amounts found due and payable by both sides shall carry simple interest @ 6% per annum. The entire exercise shall be completed and the final amount shall be remitted to the petitioner within two months from the date of receipt of a copy of this order. Considering the refractory attitude of the respondents in driving the petitioner from pillar to post for his rightful dues, this Court is constrained to impose exemplary costs of Rs. 10,000/- upon the respondents. The writ petition shall stand disposed of accordingly. Pending miscellaneous petitions, if any, shall stand closed in the light of this inal order.

THE HONBLE SRI JUSTICE SANJAY KUMAR        

WRIT PETITION NO.23832 OF 2009    
       
24-06-2015

K. Subrahmanyam.. Petitioner

The Border Roads Development Board,  rep. by its Secretary, Government of
India, New Delhi and others .. Respondents


Counsel for petitioner: Sri Siva
                         Smt. K. Rajya Lakshmi

Counsel for respondents:Sri T. Balaji
                         Sri B. Narayana Reddy
               

<Gist:


>Head Note:    

? CASES REFERRED:    

1. (1979) 2 SCC 150 = AIR 1979 SC 1060.
2. (2000) 8 SCC 395 = AIR 2000 SC 3243.
3. AIR 1982 MADRAS 386 (DB)  
4. 2006 Writ LR 705 (DB).
5. 2013(5) ABR 458 = 2013 (6) ALLMR 724 (DB).
6. AIR 1999 AP 335 = 1999 (3) ALD 632.


THE HONBLE SRI JUSTICE SANJAY KUMAR        

WRIT PETITION NO.23832 OF 2009    

O R D E R

        The petitioner, an octogenarian, is aggrieved by the rejection of
his claim for certain pensionary benefits by the Director General,
Border Roads, New Delhi, the second respondent, under letter dated
22.05.2009 (wrongly mentioned as 22.05.2008).
        There is no dispute as to the petitioners entitlement to
pensionary benefits from 04.04.1979.  He has been agitating his
grievance in connection therewith since 1985 and this is the third
round of litigation before this Court.  Ergo, a lengthy and tortuous
history precedes the case.  Shorn of needless detail, the facts to the
extent relevant may be summed up thus:
        The petitioner entered the service of the Central Water and
Power Commission, Government of India, in December, 1956.  He
was thereafter appointed to the General Reserve Engineer Force,
Border Roads Development Board, in May 1963.  In March, 1974, he
was promoted as a Superintendent Engineer (Mechanical).  He was
deputed to work in M/s. Singareni Collieries Company Limited, a
public sector undertaking, in April, 1975 and continued as such till
April, 1979.  He was permanently absorbed in M/s. Singareni
Collieries Company Limited with effect from 04.04.1979.  The
permanent absorption order was issued by the Government of India,
Ministry of Shipping and Transport, Boarder Roads Development
Board, New Delhi, under proceedings dated 28.02.1985.  These
proceedings record that the petitioners permanent absorption would
have effect from 04.04.1979 but no arrears on account of pension
and death-cum-retirement gratuity would be paid to him from
04.04.1979 till 28.02.1985.  It was further stated therein that the
petitioner would be eligible for pro-rata pension and gratuity based
on the length of his qualifying service under the Government of India
till the date of his permanent absorption, as admissible under the
rules.  Admittedly, his qualifying service was from his initial
appointment in December, 1956, till his absorption in M/s. Singareni
Collieries Company Limited in April, 1979. Clauses (v) and (vi) of the
proceedings dated 28.02.1985 are germane and read thus:
(v) Option:
The officer will exercise an option, within six months of the
date of issue of this letter, for either of the alternatives
indicated below:-
a)      Receiving the pro-rata monthly pension and death-cum-
retirement gratuity as admissible under clauses (ii), (iii) and (iv)
above under the Government of India Rules.
OR
b)      Receiving the pro-rata gratuity and a lump sum amount in lieu
of pension worked out with reference to the Commutation
Tables obtaining on the date from which the commuted value
becomes payable.
(vi) Commutation:
In case Shri K. Subrahmanyam opts to receive pension as in
para (v) (a) above but wishes to commute a portion of his
pension, such commutation will be regulated in accordance
with the Government of India Rules in force at the time of his
permanent absorption in Singareni Collieries Limited.

      According to the respondents, the petitioner furnished Option
Certificate dated 24.03.1985 opting to receive pro-rata gratuity and a
lump sum amount in lieu of pension.  The petitioner would however
contest this claim.  According to him, the sequence of events
demonstrates that he had not opted for 100% commutation and, in
fact, he could not have done so under the prevailing legal regime.
        In the first instance, the petitioner approached this Court by
way of W.P.No.16779 of 1997 aggrieved by the denial of pensionary
benefits from 04.04.1979 to 28.02.1985.  Therein, he sought a
direction to the respondents to restore his pension from the date of
his retirement from Government service and to regulate the same in
accordance with the orders extant.  It appears that prior to filing this
case, the petitioner approached the Central Administrative Tribunal.
The Tribunal however refused to entertain his case on the ground of
delay.  He thereupon filed the writ petition.  Initially, a learned Judge
of this Court dismissed the writ petition by order dated 08.07.1998.
Aggrieved thereby, the petitioner filed W.A.No.1407 of 1998.  The said
appeal was allowed by order dated 19.12.2000 and the writ petition
was remitted for consideration afresh.  It was then disposed of by a
Division Bench of this Court on 26.02.2004.  Observing that the
petitioner was 75 years of age at that time and requiring him to
approach the Tribunal again would be a long drawn exercise, the
Division Bench considered the matter on merits.
        Similar considerations would therefore weigh with this Court
now, as the petitioner has advanced in age by another decade.
      The Division Bench took note of the fact that the petitioner had
received lump sum pensionary benefits in 1986 and that the
commuted portion of his pension was restored after 15 years, i.e., in
2001, and observed that till the commutation of the pension was
effected the petitioner was eligible for pension.  He was accordingly
held entitled to the arrears of pension for the said period.  The
operative portion of the order dated 26.02.2004 reads thus:
      (1) The petitioner is entitled for pension in accordance
with the Rules either pro rata or otherwise from 04.04.1979 till
the date of 100% commutation of pension.
                (2)    
        (3) The arrears and also the amount which became
payable to the petitioner shall be paid within a period of three
(03) months from the date of receipt of a copy of this order.
      It appears that the respondents, in purported compliance with
the above order, granted pension to the petitioner from 04.04.1979
till the date of commutation in 1986. Earlier, the letter dated
29.10.1986 issued to the petitioner had stated that his pro-rata
pension was calculated as Rs.614/- per month and the commuted
value of 1/3rd of the pension, i.e. @ Rs.204/-, was arrived at
Rs.27,172.80 ps.  The terminal benefit, being twice the commuted
value, was calculated at Rs.54,345.60 ps. and the total amount of
Rs.81,518.40 ps. was remitted.  This letter clearly demonstrated that
only 1/3rd of the petitioners pension was commuted. The revision of
his pension with effect from 01.01.1986 was extended to him
pursuant to the order dated 26.02.2004 and he was granted certain
arrears along with interest.  However, dissatisfied with the manner in
which the issue was dealt with, the petitioner again approached this
Court by way of W.P.No.6975 of 2005.  His prayer therein was as
under:
      .a) to declare the action of the respondents in not granting
the arrears of pension payable to the petitioner from 17-10-1986 as
per the revised pension of Rs.1277/- p.m. after deducting the
commutation portion of Rs.614/- and the pension revisions that took
place from time to time; b) to declare the action of the respondents in
not granting the benefits of Central Government Health Scheme to
the petitioner and his family from the date of retirement is arbitrary,
discriminatory and unconstitutional; c) and the respondents be
directed to release all the arrears of amounts due to the petitioner on
account of monthly pension of Rs.663/- p.m. payable to him since
17-10-1986 and the arrears of amounts of expenditure incurred by
the petitioner towards himself and to his wife for medical treatment
and operations undergone by them from 1-11-1987 with interest on
arrears compounding at 18% p.a. by allowing the writ petition with
exemplary costs and compensation for the loss suffering and
hardship caused to the petitioner and his family and pass such other
order or orders as this Honble Court may deem fit and proper in the
circumstances of the case.
        This writ petition was disposed of by order dated 05.11.2008
directing the respondents to consider the representations of the
petitioner canvassing his grievance in accordance with law and to
pass appropriate orders thereon within a time frame.  It was
pursuant to this order that the present impugned letter dated
22.05.2009 has been issued.
        At the core of the controversy lies the question as to whether
the petitioner commuted 100% of the pension payable to him as per
rules and whether the respondents acted upon the same?
        It is no doubt true that Section 10 of the Pension Act, 1871,
provides that the appropriate Government may, with the consent of
the holder, order the whole or any part of his pension to be
commuted for a lump sum on such terms as it may deem fit.
However, the question, as stated earlier, is whether the petitioner
consented to 100% commutation of his pension.
        The record reflects that there was no clarity on this issue on
the part of the petitioner and more so, unfortunately, on the part of
the respondents.   In the proceedings dated 28.02.1985, there was no
reference to any rule in connection with the choice offered to the
petitioner to opt for a lump sum amount in lieu of pension.  However,
the respondents stated in their counter-affidavit that the grant of pro-
rata retirement benefits under the proceedings dated 28.02.1985 was
relatable to Rule 37-A of the Central Civil Services (Pension) Rules,
1972 (for brevity, the Rules of 1972).
        Significantly, Rule 37-A of the Rules of 1972 pertains to
payment of pension on absorption consequent upon conversion of a
Government department into a central autonomous body or a public
sector undertaking.  In the present case, the petitioner alone was
absorbed in M/s. Singareni Collieries Company Limited and there
was no conversion of his parent department into a public sector
undertaking.  This rule therefore had no application to the petitioner.
On the other hand, Rule 37 of the Rules of 1972 deals with pension
payable on absorption in or under a corporation, company or body.
This rule reads to the effect that a Government servant, who has
been permitted to be absorbed in a corporation, wholly or
substantially owned or controlled by the Government, shall be
deemed to have retired from service from the date of such absorption
and shall be eligible to receive retirement benefits. The Explanation
thereto makes it clear that the date of absorption shall, in case the
Government employee joins a corporation on absorption basis, be the
date on which he actually joins that corporation.  It is clear that Rule
37 of the Rules of 1972 alone governs the petitioner.
        Further, it may be noticed that the impugned letter dated
22.05.2009 relies heavily upon the Office Memorandum dated
08.04.1976 of the Department of Expenditure, Government of India.
A copy of the said Office Memorandum was produced by the learned
Assistant Solicitor General.  Though a reference was made to this
Office Memorandum in the proceedings dated 28.02.1985, the clause
as to the exercise of option was materially different therein.  In the
Office Memorandum dated 08.04.1976, the clause reads as under:
   (iii) Every Government servant is to exercise an option, within
six months of his absorption, for either of the alternatives
indicated below:
(a)     Receiving the monthly pension and DCR Gratuity already
worked out, under the usual Government arrangements.
(b)     Receiving the gratuity and a lump sum amount in lieu of
pension worked out with reference to commutation tables
obtaining on the date from which the pro-rata pension, gratuity
etc. would be disbursable.
   Where no option is exercised within the prescribed period, the
officer will automatically be governed by alternative (b) above.
Option once exercised shall be final.  The option shall be exercised
in writing and communicated by the Government servant
concerned to the undertaking/autonomous body.
                                                              (emphasis added)
      Significantly, the proceedings dated 28.02.1985 did not
disclose that the option once exercised would be final and that it had
to be exercised in writing and communicated by the petitioner  to
M/s. Singareni Collieries Company Limited.  There is no proof of due
compliance in this regard by the petitioner even at this late stage.
      To complicate matters further, the learned Assistant Solicitor
General produced a form dated sometime in August, 1985, duly
signed by the petitioner, relating to commutation of his pension
without medical examination.  This form tallies with Form 1 of the
Central Civil Services (Commutation of Pension) Rules, 1981 (for
brevity, the Rules of 1981), which relates to an application for
commutation of a fraction of pension without medical examination. In
this form, there is no indication that the petitioner commuted 100%
of the pension payable to him and going by the format of the
application, he could not have done so.  On the other hand, he stated
therein that the amount of pension had not yet been settled and the
pension proposed to be commuted was as per the Rules of 1972.
This form was obtained by the respondents in August, 1985, and it
contradicted the earlier certificate obtained from the petitioner in
March, 1985. To add to the confusion, the letter dated 29.10.1986
issued by the respondents, referred to supra, indicated that the
petitioner underwent a medical examination on 30.06.1986!
      There is no explanation forthcoming even now as to these
discrepancies and contradictions.
      Further, the letter dated 29.10.1986 demonstrated that only
1/3rd of the petitioners pension was commuted.  This was in keeping
with Rule 5 of the Rules of 1981, which decrees that a Government
servant can commute for a lump sum payment only a fraction, not
exceeding 1/3rd, of his pension. The Rules of 1981 would have
application as they apply to classes of pension referred to in Chapter
V of the Rules of 1972, which includes Rule 37.  It is relevant to note
that Rule 9 of the Rules of 1981 provides that a Government servant
to whom, pending assessment of final pension, provisional pension
has been sanctioned, would be eligible to commute only a fraction of
such provisional pension subject to the limit specified in Rule 5.
      At the point of time when the option certificate was obtained
from the petitioner in March, 1985, the petitioners final pension had
not even been calculated, much less sanctioned.  He could not
therefore have acted in violation of the rules and sought 100%
commutation.  It is not the contention of the learned Assistant
Solicitor General that the Rules of 1981 do not apply to the
petitioner.  The Office Memorandum dated 08.04.1976 cannot
therefore override the statutory rule, viz., Rule 5 of the Rules of 1981.
Further, as indicated supra, the intimation given to the petitioner
under the proceedings dated 28.02.1985 was not even in consonance
with the Office Memorandum dated 08.04.1976 and the petitioner
was never put on notice that the option exercised by him would be
final.  The respondents themselves did not treat the option exercised
by him in March, 1985 as final, as is clear from the subsequent
option form obtained from him in August, 1985, which was quite
contrary to the earlier option.  At the time the petitioner purportedly
opted for 100% commutation in March, 1985, his provisional pension
had not even been calculated or sanctioned.
      It is therefore not open to the respondents to claim that the
petitioner opted for 100% commutation and that it is final and
binding on him.  Their own conduct speaks against such a
conclusion.  Except for banking upon the clause extracted from the
Office Memorandum dated 08.04.1976, the impugned letter dated
22.05.2009 does not demonstrate as to why the petitioners main
grievance has not been considered.  It was his case that he had only
asked for commutation of a fraction of his pension.  It appears that
the fraction initially permitted to be commuted was 1/3rd of his pro-
rata pension in accordance with the rules but thereafter, confusion
abounded and amounts in excess of the permissible limit were paid
to the petitioner.  However, it was for the respondents to be more
mindful of the legal regime while dealing with the petitioners pension
payments and they ought to have acted in accordance with law.
Ignorance or carelessness on the part of the petitioner cannot be
taken advantage of by the respondents in this regard.
      It may also be noticed that pursuant to the order passed by the
Division Bench of this Court in W.P.No.16779 of 1997, the petitioner
was paid arrears of pension from 04.04.1979 till the date of the so
called commutation.  If it was the stand of the respondents that the
petitioners option to receive 100% commutation is final and binding,
there was no question of his being allowed pension payment on
regular basis from 04.04.1979 till the date of the so called
commutation in 1986.  The respondents therefore cannot approbate
and reprobate. If it was their contention that he was entitled to only a
lump sum payment in lieu of pension, he should have been paid, at
best, an additional lump sum for the period in question and not the
arrears of regular pension, as has been done.  It is also significant to
note that the Division Bench had left it open to the respondents to
pay pension to the petitioner in accordance with law either pro-rata
or otherwise.  The respondents opted to pay him arrears of pension
for that period.  Once they chose to do so, it is not open to them at
this late stage to say that the petitioner opted for a one-time lump
sum commutation whereby he stood disentitled to receive regular
pension.
      Significantly, it was only in September, 2004, that the
respondents applied this so called 100% commutation to the revised
pension of Rs.1,277/- and paid him a further lump sum amount.
This unilateral action on their part, after a lapse of nearly 18 to 19
years, is in clear violation of the rules and cannot be countenanced.
This also speaks volumes about the utter lassitude and negligence of
the respondents in dealing with a pensioner who rendered loyal
service to the organization.
        Reference in the counter affidavit to Rule 10 of the Rules of
1981, as to an applicant who commutes a fraction of his final
pension not being required to apply afresh for commutation after
revision of such pension, indicates clear lack of application of mind.
The rule applies, as is self-evident, in the case of an application for
commutation of part of the final pension.  It has no application to a
case of 100% commutation.  Despite the same, the respondents now  
seek to justify their action in the year 2004 by relying on this rule.
This lack of clarity and understanding on the part of the respondents
in discharging their statutory obligation towards the petitioner has
resulted in this long drawn battle stretching over several decades
causing great injustice to the petitioner in his twilight years.
      To sum up, it is manifest that both parties were completely at
sea as to the implementation of the rules and the benefit of this lack
of clarity on the part of the implementing authority must necessarily
go to the petitioner.  Needless to state, there can be no estoppel
against the statute. Further, there is no possibility of applying the
principle of constructive res judicata to the petitioner on the ground
that this is the third case filed by him. The issue was kept alive since
the very first round of litigation and never attained a quietus. The
petitioner is therefore not estopped from raising this grievance even
at this stage.
      Finally, the relief to be granted. The confidence reposed by this
Court in the respondents while disposing of W.P. No. 6975 of 2005
has not been honoured by them as is apparent from the cursory
handling of the petitioners representations under the impugned
letter dated 22.05.2009. A direction to again consider the issue would
therefore not suffice; all the more so, keeping in mind the advanced
age of the petitioner. Having fought this battle relentlessly, he is
justly entitled to enjoy the benefits thereof during his lifetime.
      The respondents have made enough of a muddle and a parody
while dealing with the petitioners case and cannot be trusted to set
right their mistakes by applying the rules correctly at this stage, even
if this Court directs them to do so. It is a settled proposition of law
that in a fit and deserving case, this Court would have the power to
issue positive directions. (DISTRICT REGISTRAR V/s.
M.B.KOYAKUTTY , BADRINATH V/s. GOVERNMENT OF          
TAMILNADU , STATE OF TAMILNADU V/s. C.VADIAPPAN ,        
GOVERNMENT OF TAMILNADU V/s. G.B.TRUST , NARENDRA            
BARDE V/s. MUNICIPAL CORPORATION OF BRIHAN MUMBAI  and            
LAVU EDUCATIONAL SOCIETY V/s. GOVERNMENT OF ANDHRA              
PRADESH ). This Court has no hesitation in holding that the case on
hand falls within the exceptional category warranting exercise of such
power.
      Viewed thus, this Court holds that the petitioner is deemed to
have opted for commutation of only 1/3rd of his pro rata pension as
per the rules. Consequently, the respondents would have to redo the
exercise of working out his pensionary benefits right from the start.
In accordance with such option, the respondents shall work out the
commuted pension payable initially and upon revision, the regular
pension payable after such commutation initially and upon revision,
the amount payable after restoration of the commuted pension and
all the arrears. As the petitioner received certain amounts in excess
of the amounts due and payable to him, he would necessarily have to
refund the same. Such amounts would therefore have to be adjusted
against the final amount calculated to be due and payable to the
petitioner pursuant to this order. The amounts found due and
payable by both sides shall carry simple interest @ 6% per annum.
The entire exercise shall be completed and the final amount shall be
remitted to the petitioner within two months from the date of receipt
of a copy of this order. Considering the refractory attitude of the
respondents in driving the petitioner from pillar to post for his
rightful dues, this Court is constrained to impose exemplary costs of
Rs. 10,000/- upon the respondents.
        The writ petition shall stand disposed of accordingly.  Pending
miscellaneous petitions, if any, shall stand closed in the light of this
inal order.
_________________  
SANJAY KUMAR,J    
24th JUNE, 2015 

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