TaxTMI 
TaxTMI 
1984 (9) TMI 295
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....t term as defined in section 311(1) of the Government of India Act, 1935, and its Ruler within the meaning of that term as defined in the said section 311(1) was the Nizam. The Appellant in Civil Appeal No. 2627 of 1977, Ahmed Hussain Khan, joined the service of the Public Work Department of the erstwhile Indian State of Hyderabad in the year 1945 and retired on April 5, 1972, as Chief Engineer, Electricity (operation), Andhra Pradesh State Electricity Board. At the time of his retirement he was drawing a salary of ₹ 1,980 per month. By a Government Order, namely, G.O. MS No. 664, Public Works (E) Department, dated June 22, 1973, this Appellant's pension after deducting the pension equivalent of death-cum-retirement gratuity was fixed at Rs. 801.96 per month on the basis that the maximum amount of pension admissible under Rule 299(1)(b) of the Hyderabad Civil Services Rules was ₹ 1,000 per month. By another Government order, namely, G.O. MS No. 769, Public Works (Pen I) Department, dated July 2, 1913, the amount of pension payable to this Appellant was fixed at ₹ 683.11 per month after deducting the pension equivalent of death-cumretirement gratuity on the basis t....
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....gle Judge, being Writ Appeals Nos. 835 of 1974 and 920 of 1974, were allowed, with no order as to costs, by a Division Bench of the Andhra Pradesh High Court by a common judgment holding that a letter No. S/8/73-SR(S) dated April 28, 1973, from the Joint Secretary to the Government of India, Cabinet Secretariat, Department of Personnel and A.R., to the Secretary to the Government of Andhra Pradesh, Finance Department, was in the nature of a previous approval given by the Central Government within the meaning of the proviso to sub-section (7) of section 115 of the States Reorganization Act, 1956, to the impugned amendment to clause (b) of Rule 299(1) of the Hyderabad Civil Services Rules. The correctness of the judgment and orders of the Division Bench of the Andhra Pradesh High Court are assailed before us in these two Appeals. At the hearing of these two Appeals, Mr. Markandeya, learned Counsel for the Appellant in each of these two Appeals, submitted that the said letter dated April 28, 1973, from the Joint Secretary to the Government of India, did not amount to the previous approval of the Central Government to the amendment made by the State Government to clause (b) of Rule 2....
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.... made in the said clause (b) of Rule 299(1). (4) The Appellant in each of these two Appeals had received without any protest pension on the basis that the maximum pension admissible under the said Rule 299(1)(b) was ₹ 857.15 per month and had thereby waived his right to claim pension on the basis that the maximum pension admissible under the said Rule was Rs. 1,000 per month and he was, therefore, estopped from raising this contention. In Deokinandan Prasad v. State of Bihar and others this Court held that the payment of pension does not depend upon the discretion of the State but is governed by the rules made in that behalf and a Government servant coming within such rules is entitled to claim pension. It was further held that the grant of pension does not depend upon an order being passed by the authorities to that effect though for the purpose of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the rules. It was also held in that case that pension is not a boun....
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....lation 313 provided for the amount of pensions and gratuities for superior service. Clause (a) of Regulation 313 dealt with a qualifying service of less than ten years. Clause (b) of Regulation 313 dealt with a qualifying service of ten years or more. The Appellant in each of these two Appeals had put in a qualifying service of more than ten years and the amount of his pension, had the Regulations continued in force until he retired, would have been governed by clause (b) of Regulation 313. The relevant provisions of Regulation 313 were as follows: "The amount of pensions and gratuities for superior service is regulated as follows: X X X "(b) After a qualifying service of 10 years or more, the amount of the pension will be calculated according to the following rule; the average salary should be multiplied by the period of qualifying service, and the product divided by 60; the result will be the amount of pension admissible. The maximum pension ordinarily admissible will be O.S. ₹ 1,000 a month. In applying the above rule qualifying service of 25 years or above, whatever its length may be, will be treated as 30 years service." It may be mentioned that th....
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....t No. 1 of 1953) (herein after referred to as "the Demonetization Act"), enacted. The Demonetization Act came into force with effect from April 1, 1953. Section 2 of the Demonetization Act provided as follows . "2. Provisions consequential on demonetization of Hyderabad O.S. Currency: Subject to the provisions of the Act references express or implied in any Hyderabad law, Regulation, notification, order, bye-law, contract and agreement (oral or written) bond and other instruments which immediately before the commencement of this Act were in force in the Hyderabad State shall be cons trued as if references therein to any amounts in O.S. Currency were references to the equivalent amounts in I.G. currency according to the standard rate of exchange and all rights and liabilities express or implied in O.S. Currency in force before such commencement shall be construed accordingly: Provided that nothing in this section shall preclude a person from paying his dues in equivalent o. s. Currency to the extent and for the purposes for which the same continues as legal tender in the Hyderabad State after the thirty-first day of March 1953. Illustration-References to O.S. ....
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....ect subject to the provisions of any such Act. The Hyderabad Civil Services Rules (hereinafter referred to as "the Rules") inter alia provide for general conditions of service, pay, travelling allowances, dismissal, removal, suspension and compulsory retirement of civil servants, and their pension, leave, etc. The Rules came into force on October 1, 1954. Rule 4 of the Rules is in pari materia with Regulation 6 of the Regulations. Rule 4 provides as follows: "4. A Government Servants claim to pay and allowances is regulated by the rules in force at the time in respect of which the pay and allowances are earned; to leave by the rules in force at the time the leave is applied for and granted; and to pension by the rule in force at the time when the Government servant retires or is discharged from the service of Government." (Emphasis supplied) The Rules preserved the distinction between Inferior Service and Superior Service. Under clause (26) of Rule 7, 'Inferior or Class IV service' is defined as meaning "service in all appointments, the pay of which does not exceed ₹ 40 per mensem". Under clause (48) of Rule 7, 'Superior service' is defined....
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.....S. Currency. It is also pertinent to point out that the Rule were not a mere reproduction of the Regulations. The arrangement of the Rules is in several respects different from the arrangement of the Regulations. There is nowhere any amount mentioned in the Rules in O.S. Currency nor are the different amounts mentioned in the Rules the exact equivalent in I.G. Currency of the amounts in O.S. Currency mentioned in the Regulations. For instance, the rates of mileage allowance for journeys by road mentioned in Rule 99 are not equivalent in I.G. Currency of the rates mentioned in Regulation 455. It is also significant that Regulation 308 provided that a pension was ordinarily fixed in the current coin of the Hyderabad State even though it might have to be paid to persons residing outside the Hyderabad State, and that in special cases it might be fixed in Government of India Currency subject to the condition that the maximum of O.S. ₹ 1,000 per mensem fixed in clause (b) of Regulation 313 was not exceeded under any circumstances. The not to Regulation 308 stated that a pension transferred to India might be converted from the current coin of the Hyderabad State to Indian Governmen....
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....,000 mentioned therein to O.S. ₹ 1,000. Three retired Government servants thereupon filed a writ petition in the Andhra Pradesh High Court being Writ Petition No. 3318 of 1969 Daulat Rai and others v. State of Andhra Pradesh. A learned Single Judge of the said High Court allowed the said writ petition, holding that there was no error in mentioning ₹ 1,000 and that what the said erratum purported to do was to amend clause (b) of Rule 299 and that the Rules promulgated by the Rajpramukh under the proviso so Article 309 of the Constitution of India cannot be amended or altered merely by issuing an erratum and that the said Assistant Secretary to the Government of Andhra Pradesh was not entitled to amend any such rule unless the sanction of the Governor of Andhra Pradesh had been obtained thereto. The said writ petition was thereupon allowed. A Letters Patent Appeal filed against the said judgment, being Writ Appeal No. 568 of 1970 State of Andhra Pradesh v. Daulat Rai and others, was dismissed on September 24, 1970, by a Division Bench of the said High Court which also rejected an application for certificate to appeal to this Court and a petition for special leave to appea....
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....ppointed day, the Central Government shall by general or special order, deter mine the successor State to which every person referred to in sub-section (2) shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect. "(4) Every person who is finally allotted under the provisions of sub-section (3) to a successor State, shall if he is not already serving therein be made available for serving in that successor State from such date as may be agreed upon between the Governments concerned, and in default of such agreement as may be determined by the Central Government. "(7) Nothing in this section shall be deemed to effect after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State; Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub-section (1) or sub-section (2) shall not be varied to his disadvantage except with the previous approval....
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....ra Pradesh High Court striking it down were then recited in the said letter. It was then stated that the Government held the view that as no one was paid more than ₹ 857.15 in I.G. Currency prior to November 1, 1956, the condition of service that the maximum pension admissible should be ₹ 1,000 in I.G. Currency did not exist and that it came into being only by virtue of the judgment delivered by the Andhra Pradesh High Court In 1970, that is, in the said writ petition filed by Daulat Rai and two others, and that it was, therefore, felt by the State Government that what it had done was not a variation in the conditions of service of any employee to his disadvantage but an action taken to give effect to an actual situation that existed prior to November 1, 1956. The said letter then went on to state: "It, therefore, does not appear necessary to obtain previous approval of Government of India for this amendment under the proviso to section 115 of the S.R. Act, 1956. Should however Government of India consider it otherwise they may kindly accord approval for the amendment as explained earlier." Along with the papers forwarded with the said letter was a copy of....
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....ive effect from the date of the coming into force of the rules, namely, October 1, 1954. For such an amendment the previous approval of the Central Government was required by the proviso to sub-section (7) of section 115. Such approval was not given and the amendment made by the said Notification was, therefore, invalid and inoperative so far as it concerned persons referred to in sub-section (1) and (2) of section 115 of the States Reorganization Act. The question whether even with respect to persons other than those referred it in the said sub-sections, the said Notification in so far as it is retrospective is valid does not arise in these Appeals and does not fall to be decided. In this view of the matter it is unnecessary to consider the other points arising in these Appeals except the Respondent's con- tention that the Appellant in each of these two Appeals had waived his right to receive pension on the basis that the maximum pension admissible under clause (b) of Rule 299 (1) is ₹ 1,000 and was, therefore, estopped from claiming pension on that basis. There is no substance in this contention. This point was never taken in the High Court. Further, apart from the fact t....