UNION OF INDIA v. S.R. DHINGRA AND ORS

Citation: [2007] 13 S.C.R. 746

Court: Supreme Court of India

Bench: A.K. MATHUR, MARKANDEY KATJU

Case summary

UNION OF INDIA v. S.R. DHINGRA AND ORS.pdf

Judgment text

UNION OF INDIA v. S. R. DHINGRA AND ORS. DECEMBER 14, 2007 [A. K. MATHUR AND MARKANDEY KATJU, JJ. ] ~ Service Law: RunningAllowance-Given to 'Running Staff' in Railways, apart from salary-Pension for 'Running Staff' computed by taking into account 'Running Allowance '-Respondents, 'Running Staff', are pre- 1986 retirees-Vide OM dated 10-2-1998, pay ofpre-1986 retirees revisedon notional basis on 1-1-1986-Clarification issuedby Railway Board that 'Running Allowance 'not to be taken into consideration at the time ofre-fixation ofpay on notional basis on 1-1-1986- Quashed ,_ ·1 by Tribunal-Justification of-Held, not justified- 'Running Allowance' could be consideredfor computing pension only once- Benefit of 'Running Allowance' already given to Respondents at the time ofretirement could not be given again vide OMdated 10-2-1998 -Clarification issued by Railway Board was valid-Indian Railway Establishment Code-r. 2544(g).

Two sets ofemployees ofsame rank-Retiring at differentpoints oftime-Held: One set cannot claim benefit extended to the other set r on ground that they are similarly situated-Though they retired with " the same rank, they are not ofthe same class or homogeneous group -Art. 14 has no application-Constitution ofIndia, 1950-Art. 14.. 'Running Staff in the Railways viz. drivers, guards, shunters etc, who go along with the railway train, are entitled to an allowance called 'Running Allowance' apart from their salary. Computation of pension after retirement in the Railways is made on the basis of average emoluments plus apart ofthe Running Allowance which is included in average emoluments in terms of Rule 2544(g) of the Indian Railway Establishment Code. The present dispute relates to pension for the Running Staff A who retired prior to 1986.

In order to implement one recommendation of the 5th Pay Commission to give parity to the pre-1986 retirees with the post 1986 retirees, the pay of the pre-1986 retirees was fixed as on 1. 1. 1986, however, the pay so fixed was treated as average emoluments. On 10. 2. 1998, an Office Memorandum was issued providing for fixation of notional pay of all Government servants who retired prior to 1. 1. 1986 as on 1. 1. 1986. Due to certain doubts and confusion, a clarification was sought as to whether running allowance was to be added again while fixing the pay notionally as per the OM dated 10. 2. 1998. On 29. 12. 1999, the Railway Board issued clarification that running allowance was not to be taken into consideration at the time ofre-fixation of pay on notional basis on 1. 1. 1986. Respondents filed application before the Tribunal challenging D the said clarification. Appellants contended that only the pay was to be notionally fixed as per the OM dated 10. 2.

1998, and therefore, there was no need to add running allowance again since Running allowance would be added only if on the basis of pay so fixed the average emoluments was to be recalculated and that the said course of recalculation of average emoluments was specifically excluded by the said OM dated 10. 2. 1998. Tribunal allowed the application ofrespondents and quashed the Railway Board's clarification dated 29. 12. 1999. Several writ petitions were filed thereagainst in the High Court, one ofwhich was transferred to this Court. Allowing the transfer case, the Court HELD: 1. 1. The benefit ofrunning allowance which has been given to the respondent at the time ofretirement is not to be given again vide Office Memorandum dated 10. 2. 1998. [Para 26) (754-H) 1. 2. The clarification of the Railway Board dated 29. 12.

1999 clarifying that the running allowance which was already taken into account for pension and other benefits at the time of retirement is not to be added to the pay of pre-1986 retirees revised on notional H - 1986 retirees revised on notional basis as on 1. 1. 1986. 23. We are ofthe opinion that the clarification ofthe Railway Board dated 29. 12. 1999 clarifying that the running allowance which was already taken into account for pension and other benefits at the time ofretirement - ' is not to be added to the pay of pre-1986 retirees revised on notfonal basis as on 1. 1. 1986 is valid. It appears that due to a clerical error the notional bt'J}efits ofthe respondents w. e. f. 1. 1. 1986 was wrongly fixed and such retired employees are getting excess pension. It is well-settled that mistake does not confer any right to any party, and can be corrected. 24. We are ofthe opinion that the benefit ofrunning allowance has to be taken into consideration for computing pension only once.

It had been taken into consideration while fixing the pension ofthe respondents at the time oftheir retirement. In our opinion it is not required to be taken into account again for any future calculation. ,_, 'i 25. It is well settled that when two sets ofemployees ofthe same rank retire at different points oftime, one set cannot claim the benefit extended to the other set on the ground that they are similarly situated. Though they retired with the same rank, they are not ofthe same class or homogeneous group. Hence Article 14 has no application. The employer can validly fix a cut-offdate for introducing any new pension/retirement scheme or for discontinuance of any existing scheme. What is discriminatory is introduction ofa benefit retrospectively (or prospectively) fixing cut-offdate arbitrarily thereby dividing a single homogenous class t ofpensioners into two groups and subjecting them to different treatment • (vide Col B. J Akkara (Retd) v. Govt ofIndia, [2006] 11 SCC 709, D. S.

Nakara v. Union ofIndia, [1983] 1 SCC 305, Krishna Kumar v. Union ofIndia, [1990] 4 SCC 207, Indian Ex-Services League v. Union ofIndia, [1991] 2 SCC 104, V Kasturi v. Managing Director, State Bank of India, [1998] 8 SCC 30 and Union of India v. Dr. Vijayapurapu Subbayamma, [2000] 7 SCC 662). ~ ; 26. In view ofthe above, we are of the opinion that the benefit of running allowance which has been given to the respondent at the time of retirement is not to be given again vide Office Memorandum dated 10. 2. 1998. 27. Accordingly Writ Petition No. 4648/2002 which has been transferred to this Court is allowed and the order of the Central Administrative Tribunal dated 22. 1. 2002 is set aside. This decision will govern all similar matters pending in the High Courts or Tribunal. 28. However, any amount already paid to the respondents and other .. , similarly situated persons shall not be recovered from them. 29. The Transfer Case stands allowed. B. B. B. Transfer case allowed.