Dr. Ramesh Chandra Panda, Member (A) : By the present common order, with the consent of the counsel for the parties, we are proposing to decide two Original Applications (OA No.3872/2010 and OA No.2678/2011) as the issues/controversies to be determined in both cases are same.

2. The applicants are challenging (a) the OM dated 14.07.2009 whereby the decision of the Government on the revision of Pension of pre-2006 Pensioners was conveyed intimating that Non Practicing Allowance (NPA) would not be added to the minimum of the revised Pay Band + Grade pay/revised pay scales in which consolidated pension/family pension would need to be stepped up to 50%/30% respectively; and (b) the letter dated 23.03.2010 (Page 79) issued by the respondent Department of Pensions and Pensioners Welfare (DOP&PW) to the first applicant in the OA intimating therein that while revising the pension w.e.f. 01.01.2006, the benefit of NPA would not be extended to those Petitioners to whom the benefit of NPA was extended w.e.f. 1.1.1996 in view of Delhi High Court Orders.

3. For consideration and determination of the issues, we refer to the facts in the OA No.2678/2011. Twenty nine applicants have joined in this OA who are the pre-1996 retired medical officers of Central Health Service (CHS). They were working in Medical Colleges and Hospitals of Government of India and during service they were getting Non Practicing Allowance (NPA in short). NPA has been introduced for the serving Medical Officers to compensate them for the loss of private practice. The rate of NPA varied from time to time. It is the case of the applicants that as per FR 9 (21) and the Government letter No.A.27023/1/87-CHS.V dated 22.09.1987 and dated 02.11.1989 (Annexure-P2 colly) NPA is treated as pay for all service matters including calculation of retirement benefits. The term basic pay means pay defined in the FR 9 (21) (a) (i) in various Notifications dated 13.09.1996, 30.09.1997, and 29.08.2008 (Annexure-A3 colly). In the 3rd and 4th Central Pay Commissions (CPC), NPA was in the slab system for different grade of doctors which was changed to the uniform rate of 25% of the basic pay in the 5th CPC and the NPA would be counted for the pensionary benefits as per Paragraph 52.16. It is further case of the applicants that the 5th CPC recommendation inter alia granted parity to pre-1986 and pre-1996 retirees by suggesting that the consolidation of their pension shall not be less than 50% of the minimum pay of the post in the revised scale of pay. The continuance of NPA in the 5th CPC was accepted vide letter dated 07.04.1998 (Annexure-A7). It is further averred that in the clarificatory OM dated 19.03.1999 it has been inter alia indicated that Emoluments means basic pay as defined in FR 9 (21) (a) (i) and the same is applicable for both pre-1986 and pre-1996 retirees for the purpose of calculating revision of pension. The 5th CPC recommendation in paragraph 77 indicated absolute parity between pre and post-1986 Pensoners but a modified parity formula was suggested for pre and post 1996 Pensioners which assured minimum pension of 50% of the minimum pay of the post held at the time of retirement. However, the OM dated 29.10.1999 (Annexure-A10) clarified that NPA is not to be taken into consideration after refixation of pay on notional basis on 1.1.1986. It is also not to be added to the minimum of the revised scale of pay as on 1.1.1996 in cases where consolidated pension/family pension is to be stepped up to 50% and 30% respectively in terms of OM No.45/10/98-P&PW (A) dated 17.12.98. Though applicants represented against the said OM dated 29.10.1998 but as the excess amount of pension paid to them was ordered to be recovered, they filed OA No.992/2000 before this Tribunal which was dismissed n the judgment dated 05.10.2001. Against the said order of the Tribunal, the applicants filed WP(C) No.7322/2001 which was decided on 18.05.2002 setting aside the order of the Tribunal and holding that NPA should be treated as part of pay. We take the extract of the relevant part of the High Court Judgment which reads thus:- 11.0 It is no longer res-integra that the pension is not a bounty. The amount of pension payable to a retired employee depends upon the policy decision of the State, but while laying down such policy decision, discrimination cannot be made. If N.P.A. is to be regarded as a part of pay for one set of employees, the same has to be done for the other set of employees also. 11.1 We may, in this connection, notice that emoluments has been defined in Rule 33 of CCS (Pension) Rules, 1972 in the following terms:- "The expression 'emoluments' means basic pay as defined in Rule 9(21)(a)(1) of the Fundamental Rules which a Government servant is receiving immediately before his retirement or on the date of his death and will also include Non practicing Allowance granted to the Medical Office in lieu of private practice." Thus, even in terms of the aforementioned definition, N.P.A. would be part of pay. 11.2 In D.S. Nakara and Ors. v. Union of India, , it is stated:- "42. If it appears to be undisputable, as it does to us that the pensioners for the purpose of pension benefits form a class, would its upward revision permit a homogeneous class to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose revision, and would such classification be founded on some rational principle? The classification has to be based, as is well settled, on some rational principle and the rational principle must have nexus to the objects sought to be achieved. We have set out the objects underlying the payment of pension. If the State considered it necessary to liberalise the pension scheme, we find no rational principle behind it for granting these benefits only to those who retired subsequent to that date simultaneously denying the same to those who retired prior to that date. If the liberalization was considered necessary for augmenting social security in old age to government servants then those who retired earlier cannot be worse off then those who retired later. Therefore, this division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of dividing pensioners with a view to giving something more to persons otherwise equally placed, it would be discriminatory. To illustrate, take two persons, one retired just a day prior and another a day just succeeding the specified date. Both were in the same pay bricket, the average emolument was the same and both had put in equal number of years of service." 11.3 Yet again in V. Kasturi v. Managing Director, State Bank of India, Bombay and Anr., , the Apex Court pointed that in D.S. Nakara's case (Supra) a distinction has been made between a new scheme and a liberalized pension scheme. When a new scheme come into force, the same may not apply to the persons who had retired prior thereto, but when there is a revision in the existing scheme by way of upward revision, the scheme should be applied. The Apex Court held:- "22. If the person retiring is eligible for pension at the time of his retirement and if he survives till the time of subsequent amendment of the relevant pension scheme, he would become eligible to get enhanced pension or would become eligible to get more pension as per the new formula of computation of pension subsequently brought into force, he would be entitled to get the benefit of the amended pension provision from the date of such order as he would be a member of the very same class of pensioners when the additional benefit is being conferred on all of them. In such a situation, the additional benefit available to the same class of pensioners cannot be denied to him on the ground that he had retired prior to the date on which the aforesaid additional benefit was conferred on all the members of the same class of pensioners who had survived by the time the scheme granting additional benefit to these pensioners came into force. The line of decisions tracing their roots to the ratio of Nakara case would cover this category of cases." However in that decision, it has also been held that if an employee at the time of his retirement is not eligible to earn pension and stands outside the class of pensioners, if subsequently by amendment of the relevant pension rules any beneficial umbrella, of pension scheme is extended to cover a new class of pensioners and when such a subsequent scheme comes into force, the erstwhile non-pensioner might have survived, then only if such extension of pension scheme to erstwhile non-pensioners is expressly made retrospective by the authorities promulgating such scheme. 11.4 In Union of India v. Dr. Vijayapurapu Subbayamma, , the Apex Court upon consideration of its earlier decision laid down the conspectus of legal position in the following terms:- "The conspectus of legal position that emerges are these:- (a) Where an employee under the terms and conditions of service or under the relevant Rules relating to pension is not eligible to earn pension n his or her retirement, any amendment to the Rules covering a new class of pensioners would not confer pensionary benefits to the employee who has retired prior to coming into force of such amendment of Rules. (b) However, the position would be different if such an amendment in the relevant pension Rules is with retrospective effect as to cover a new class of employees including those employees who, at the relevant time, were not entitled to earn pension under the then existing Rules or conditions of service. (c) Where an employee at the time of retirement is entitled to pension under the relevant Rules, any subsequent amendment to the relevant Rules enhancing pension or conferring additional benefit would be also applicable to him." The present case falls within the category mentioned at (b) & (c) aforesaid.

12. For the reasons aforementioned, the impugned order cannot be sustained, which is set aside accordingly. These writ petitions are allowed. However, in the facts and circumstances of the case, there shall be no orders as to cost.

4. Against the above order, the Union of India approached Honble Supreme Court of India in Civil Appeal Nos.1972-74 of 2003. It is averred in the OA that the Attorney General of India advised the Union of India on 16.12.2004 that judgment of Delhi High Court being correct, NPA should be treated as one of the constituents of pay. In the result, the said Civil Appeal was withdrawn and on that ground the Honble Supreme Court dismissed the same on 13.07.2005. Pursuant to the above judgments, the OM dated 29.10.1999 was decided to be withdrawn vide the Cabinet Secretariat ID dated 15.11.2006 (Page 206).

5. In the meantime, the 6th CPC gave the historical background of the NPA and justification to continue NPA for the Doctors only, though there had been demand from other Government employees and recommended that Doctors should continue to be paid NPA at the rate of 25% of the aggregate of Pay Band and Grade Pay subject to the condition that the basic pay plus NPA would not exceed Rs.85000. The 2nd respondent issued OM dated 1.09.2008 and clarifications in OM dated 3.10.2008, and 14.10.2008 stating therein that pre-2006 pensioners would in no case get pension lower than 50% of the minimum of the pay in Pay Band + Grade Pay corresponding to the pre-revised pay scale in which the pensioner retired. Further, vide OM dated 30.08.2008 (Annexure-A17), the Department of Expenditure indicated that the term basic pay would mean the pay drawn on the prescribed pay band plus the applicable grade pay but would not include any other type of pay like special pay etc. The said OM also envisaged the continuance of NPA and its treatment as pay for the purpose of calculation of retirement benefits. In the meantime, OM dated 14.07.2009 was issued clarifying that NPA would not be added to the minimum of Pay Band plus Grade Pay for the calculation of revision of Pension for the pre-2006 Pensioners.

6. It is the case of the applicants that the OM dated 14.07.2009 is identical to the OM issued on 29.10.1999 which has been quashed by Delhi High Court in the judgment dated 18.05.2002. The said judgment has reached finality as the respondents withdrew Civil Appeal from the Honble Supreme Court and implemented the High Court judgment. This would mean that the NPA had been treated as pay and added to the minimum pay while stepping up the consolidated pension for the applicants as on 1.1.1996. It is further stated that in Dr. G. D. Hoonka versus Union of India and Others [OA No.499/2000 of Jabalpur Bench of this Tribunal decided on 8.05.2003], the OA was allowed directing the respondents to fix the pension of the applicant on the basis of the High Court of Jabalpur in Union of India versus the Central Administrative Tribunal and Another in the WP No.2539/2003 which was dismissed on 07.12.2004 holding that NPA would be taken to be a part of pay for the purpose of pension and the Tribunal order in the aforesaid OA No.499/2000 was upheld. In the High Court judgment the reliance was placed on the decision of Delhi High Court in Dr. K. C. Garg case (supra). However, Dr. G. D. Hoonkas case (supra) reached Honble Supreme Court in CA No.7394/2005 as a result of appeal by Union of India but the same was dismissed on 28.08.2006 in view of the withdrawal of CA No.1972-1974/03. The Union of India filed a review petition before Honble Supreme Court in 2007 pleading therein that in view of judgment dated 10.10.2006 in Col. (Retd.) B. J. Akkara versus Government of India and others [2006-11-SCC-709], the judgment in Dr. K. C. Gargs case (supra) passed by Delhi High Court should be set aside. But the Honble Supreme Court rejected the review petition on the grounds of inordinate delay of 260 days and also on merits.

7. In the meantime, the applicants have submitted representations but the respondents in the letter dated 23.03.2010 reiterated that NPA would not be added for pension calculation for pre-2006 pensioners. The applicants further sent spate of representations dated 3.06.2010, 2.07.2010 and 11.01.2011. Finding that the Tribunal has issued notice in the other case (OA No.3872/2010) in case of retired Railway Medical Officers on the same issue of non-inclusion of NPA while revising their pension, the applicants have filed the instant OA.

8. On behalf of the applicants in both the OAs, Shri G. D. Gupta, learned Senior Advocate led the arguments in the final hearing. Shri P. P. Khurana, learned Senior Advocate with Mrs. Tamil Wad, while endorsing the contentions canvassed by Shri Gupta also supported the case of the applicants in their respective OAs and urged to allow the OA with appropriate directions to the respondents. Highlighting the background of the controversy, Shri G. D. Gupta would submit that applicants being pre-1996 rtirees have been getting pension after the NPA is being added in the minimum revised pay scale in the 5th CPC. As in the 6th CPC period, the applicants were aggrieved by the action of the respondents in the 5th CPC period when the NPA was excluded from the calculation of pension w.e.f. 01.01.1996. Then, their grievances though initially rejected by the respondents were agitated before this Tribunal and the OA was dismissed. They carried their grievance against said order to Delhi High Court. Ultimately in Dr. K. C. Gargs case (supra), the Honble High Court of Delhi allowed the Writ Petition and directed the respondents to add the NPA as part of the pay of the applicants for the purpose of refixing of their pension in the 5th CPC period. In the said writ petition Honble High Court relied upon the judgment of Honble Supreme Court D. S. Nakara versus Union of India [(1983) 1 SCC 305] and also the judgment in Union of India versus Dr. Vijay Purapu Subbayamma. Though the respondents carried the Civil Appeal before the Honble Supreme Court, they withdrew the same on the advice rendered by learned Attorney General of India and the judgment of Honble High Court in Dr. K. C. Gargs case (supra) has become final and the respondents have implemented the same qua the applicants in the said case. In another case namely, Dr. G. D. Hoonka (supra), the Honble High Court of Madhya Pradesh at Jabalpur placing reliance on Dr. K.C. Gargs case (supra) has also extended the similar benefits as has been done in the case of applicants. It is, therefore, contended that in all these judgments the applicants having been granted the benefit of addition of NPA in refixing and revision of the pension during the 5th CPC. The legitimate legal right has accrued to them for considering similar addition of NPA for revision of their pension w.e.f. 01.01.2006, the date from which the recommendations of 6th CPC came into force. Non inclusion of NPA for calculation of pension would be direct violation of the judgment of High Court of Delhi which has reached finality after the Civil Appeals were dismissed in Honble Supreme Court as the same were withdrawn by the Union of India. Referring to the judgment relied upon by the respondents in Col. (Retd.) B. J. Akkara (supra) it is stated that the judgment of Honble Supreme Court therein relates to the Army Medical Doctors and the same may not be applicable for the case in hand in the present OAs. In this context, Shri G.D. Gupta drew our attention to the judgment of this Tribunal passed in Full Bench in OA No.655/2010 in the matters of Central Government SAG (S-29 Pensioners) versus Union of India & Others decided on 01.11.2011, wherein, it has been held that Amy Pension Regulations being different would have no application upon the pensioners in the said case. The Full Bench in its decision has referred to a circular of the Government dated 18.11.2009 to highlight that the Armed forces are governed by different Pension Regulations. In this regard, it is contended that the judgment of Honble Supreme Court in Col. (Retd.) B. J. Akkaras case (supra) would be clearly distinguishable for the present OA. He further reiterates his stand that in case of the applicants claim for refixing/revision of their pension as pre-1996 retirees w.e.f. 1.1.2006, the judgment of Honble High Court of Delhi in Dr. K. C. Gargs case covers the case in all fours. Therefore, the Tribunal should follow the law laid in the said judgment and extend the similar benefits to the applicants in the present OAs with effect from 01.01.2006 by quashing the impugned orders and clarifications issued by the respondents.

9. Opposing the contentions advanced by the learned Senior Counsel for the applicants, in both OAs, the respondents have filed their reply affidavits. Shri Krishna Kumar, learned Senior Central Government Counsel would submit that applicants being pre-1996 retirees, their case was squarely covered against them by the decision of Honble Supreme Court in Col. (Retd.) B. J. Akkaras cases where it has been held that (i) NPA has no part to play in the minimum that is sought to be assured. NPA has relevance only for initial fixation of pension and not for stepping up pension under Circular dated 7.6.1999. (ii) Due to a misinterpretation, NPA was included for the purpose of giving the benefit of stepping up the pension in the case of retired medical officers. The fact that NPA had already been taken into account while calculating the existing pension of the medical officers who retired before 1.1.1996 was lost sight of. The fact that NPA is part of pay and not part of basic pay was also overlooked. Therefore, it became necessary to issue the clarification, which was done by circular dated 11.09.2001, clarifying that it was impermissible to again add NPA to the minimum pay in the revised pay scale for the purpose of stepping up the pension. (iii) In the case of pre-1996 retirees, as NPA was already added while determining their pension, the question of adding of NPA again for purpose of stepping up the pension, does not arise. If that is done, it will amount to taking NPA into account twice for purposes of pension, which is impermissible. The contention of discrimination between pre 1.1.1996 retirees and post 1.1.1996 retirees is, therefore, imaginary. Citing from the above judgment of Honble Supreme Court, Shri Krishna Kumar urges to dismiss the OA.

10. Shri V. S. R. Krishna, learned counsel for the respondents in OA No.2678/2011 would submit that NPA would be relatable to the period when the CHS Medical officer were in the service of the Government. From the day a Doctor retires, the restriction of not doing private practice is lifted. The superannuated Doctors are free to do private practice. Thus, no Doctor can claim to be paid NPA at a rate prescribed when he is not in service. Hence, the present claim that pre-1996 retired Doctors be paid pensionary benefit keeping in view the NPA as available under 6th Central Pay Commission is totally misconceived. Further, it is submitted that after each pay commissions report which is accepted by Government, Ministry of Finance issues revised pay rules indicating therein the methodology by which pay fixation have to be done and retirement benefits have to be computed. Hence, each such benefit is a separate notification and cannot be taken to be the same for the various years. Referring to the judgment of Honble Delhi High Court in K. C. Gargs case (supra), he contends that the said judgment was relatable to the recommendations of the 5th Central Pay Commission and therefore, the applicants were continued to be paid as per the orders given. The situation has now undergone a change with the recommendations of 6th Central Pay Commission. Moreover, he submits that the issue raised by the applicants has since been settled by the Honble Supreme Court in Col. (Retd.) B. J. Akkars case. It is submitted that this Tribunal vide order dated 12.09.2008 in OA No.1927/2006 (with 14 other batch OAs) dismissed the above OAs. Accordingly, the issue raised is no more res integra and stands settled. Referring to the orders passed in Col. (Retd.) B. J. Akkaras case and Honble Delhi High Court in Dr. K. C. Bajaj case (WPC No.8973/2009) would manifest that Dr. K. C. Gargs case and Dr. G. D. Hoonkas case all stand considered and rejected. Shri Krishna further mentions that the Government of India cannot create indivious discrimination among similarly placed doctors. In case the application is allowed then there would be two types of doctor pensioners, one set of doctors getting their pension on the basis of judgment of Col. (Retd.) B. J. Akkaras case and the present applicants drawing more pension irrespective of the fact that such drawal is illegal and against the law laid by the Honble Apex Court judgments. It is submitted that it is a settled proposition of law that an illegality cannot be allowed to perpetuate.

11. Having heard the contentions of the rival parties, with the assistance of their counsel, we perused the pleadings as well as the judgments relied upon by the counsel. The controversy for our consideration and determination is that whether the applicants are entitled to the addition of NPA to the basic pay in the revised Pay Band + Grade Pay for the purpose of revision of consolidated pension applicable for them as pre-1996 retirees with effect from 1.01.2006?

12. The issue of NPA to be added to the minimum pay for the purpose of stepping up the pension for the pre-1996 pensioners has been considered by the Honourable Supreme Court in Col. B.J. Akkara's case (supra) and law has been laid. Further, the judgment in the matters of Dr. K C Garg's case (supra) decide by Honourable High Court of Delhi has been referred to by the Senior Counsel for the applicants, which inter alia had struck down the clarificatory Circular dated 19.10.1999 relating to Civilian Medical Officers (corresponding to Defence Ministry Circular dated 11.9.2001 under challenge in Col. B. J. Akkaras case (supra) by judgment dated 18.5.2002. That decision has attained finality and the Union of India has implemented the same by reverting back to addition of NPA to minimum pay, for purposes of stepping up the pension in regard to pre 1996 civilian Medical Officers. Finality reached in Dr. K. C. Gargs case (supra) as the Civil Appeal filed by the Union of India before Honble Supreme Court was withdrawn. In Col. (Retd.) B. J. Akkaras case (Supra) the above case has been considered by the Apex Court.

13. In Col. (Rtd.) B. J. Akkaras case (supra), the Honble Apex Court has framed and gone into the following four questions for consideration and determination. Three of those questions and decision on each are relevant for the present OA: (i) Whether the Circular dated 11.9.2001, is only a clarification, or an amendment, to the Circular dated 7.6.1999; (ii) Whether the Circular dated 7.6.1999 as clarified by Circular dated 11.9.2001, leads to unequal treatment of those who retired prior to 1.1.1996 and those who retired after 1.1.1996 solely with reference to date of retirement, (iii) Whether the respondents having accepted and implemented the decision of the Delhi High Court (in Dr. K.C. Garg vs. Union of India, C.M.P. No. 7322/2001 and connected cases decided on 18.5.2002) on a similar issue, are required to extend a similar treatment to Defence Service Medical Officers, by cancelling the Circular dated 11.9.2001; and (iv) Even if the Circular dated 11.9.2001 is found to be valid, whether Respondents are not entitled to recover the excess payments made.

14. The 1st issue is - whether the Circular dated 11.9.2001, is only a clarification, or an amendment, to the Circular dated 7.6.1999? This was determined by the Honble Supreme Court in the following manner: "11. We may first refer to the intent and purport of the Circular dated 7.6.1999. The Circular dated 7.6.1999 neither prescribes the requirements/qualifications for entitlement to pension nor the method of determination of pension. It only effectuates the President's decision that the pension (Which has already been determined in accordance with the applicable rules/orders) irrespective of the date of retirement, shall not be less than 50% of the minimum pay in the revised scales of pay introduced with effect from 1.1.1996. Pension is determined as per relevant rules/orders, by calculating the average of reckonable emoluments (basic pay, Rank Pay and NPA) drawn during the last 10 months of service and then taking 50% thereof as the retiring pension applicable to retirees with 33 years of qualifying service, with proportionate reduction for retirees with lesser period of qualifying service. The basis for calculating the pension in respect of those who retired prior to 1.1.1996, and those retired on or after 1.1.1996 happens to be the same. The retiring pension is 50% of the average reckonable emoluments for retirees with 33 years of qualifying service, with proportionate reduction for those with lesser years of qualifying service. The President's decision given effect by Circular dated 7.6.1999 only extends to all pre 1996 retirees, who did not have the benefit of fixation of pension with reference to the revised pay scales which came into effect on 1.1.1996, the benefit of the said revised pay scales, albeit in a limited manner. In so doing, it also puts those who retired on or after 1.1.1986 and pre 1986 retirees on par and on a common platform, removing the disparity, if any, in their pensions.

12. When the Fifth Central Pay Commission recommendations were implemented, the pension of those who retired prior to 1.1.1996, was rationalized by directing that their pension shall be the aggregate of (a) existing pension; (b) dearness relief; (c) interim relief I; (d) interim relief II, and (e) fitment weightage of 40% of the existing pension. The 'existing pension' referred to therein was the pension which had been arrived at by calculating 50% of the average pay, NPA and Rank Pay during the last 10 months of service. The Circular dated 7.6.1999 made it clear that pension of retirees shall continue to be calculated at 50% of average of reckonable emoluments for the last 10 months before retirement, but only stipulated that the 'full' pension (that is pension for 33 years service) shall not be less than the 50% of the minimum pay in the revised pay scale introduced with effect from 1.1.1996. The Circular dated 7.6.1999 also made it clear that if the minimum prescribed therein was not beneficial to the pensioner, that is, where it was either equal to or less than the existing consolidated pension, his pension will not be reduced to his disadvantage. In short, the Circular dated 7.6.1999, merely stepped up the pension (for a qualifying service of 33 years) to 50% of the minimum pay in the revised scale of pay introduced with effect from 1.1.1996 of the rank held by such pensioner, where his pension was less. We may here note that whenever the reference is to stepping up pension to 50% of the minimum pay in the revised scale of pay, it applies to those with 33 years of qualifying service and gets proportionately reduced for lesser period of qualifying service.

13. The emoluments of those who retired on or after 1.1.1996, calculated with reference to the basic pay in the revised scale of pay plus NPA will certainly be more than the minimum pay in the revised scale of pay and therefore, in their cases, the question of stepping up will not arise. On the other hand, as the pension of pre-1996 retirees was based on the basic pay under the old pay scale plus NPA, and as the old pay scale was much less than the 1996 revised pay scale, their pension required to be stepped up. The extent to which the existing pension should be stepped up is clearly specified in the Circular as "minimum pay in the revised scale of pay". The words used do not give room for any confusion or doubt. A 'pay scale' has basically three elements. The first is the minimum pay or initial pay in the pay scale. The second is the periodical increment. The third is the maximum pay in the pay scale. An employee starts with the initial pay in the pay scale and gets periodical increases (increments) and reaches the maximum or ceiling in the pay scale. Each stage in the pay scale starting from the initial pay and ending with the ceiling in the pay scale, when applied to an employee is referred to as 'basic pay' of the employee. Whenever the government revises the pay scales, a fitment exercise takes place as per the principle of fitment (formula) provided in the rules governing the revision of pay so that the 'basic pay' in the old scale is converted into a 'basic pay' in the revised pay scale. When the circular dated 7.6.1999 used the words '50% of the minimum pay in the revised scale of pay', it referred to 50% of the initial pay in the revised scale of pay. If the old scale of pay was Rs.7300-100-7600 and if the revised scale of pay was Rs.22400-525-24500, the minimum pay in the revised scale of pay would be Rs.22400 and 50% of the minimum pay in the revised scale of pay would be Rs. 11200/-.

14. It is no doubt true that the term 'pay', with reference to medical officers, includes the basic pay and NPA. But the term 'basic pay' does not include NPA. In the absence of any special definition, the term 'basic pay of a government servant' refers to the applicable stage of pay in the pay scale to which he is entitled, and does not include NPA even in the case of Medical Officers. What the circular dated 7.6.1999 intended to extend by way of benefit to all pensioners, was a minimum pension, that is, 50% of the minimum pay in the 1996 revised scale of pay. NPA has no part to play in the minimum that is sought to be assured. NPA has relevance only for initial fixation of pension and not for stepping up pension under Circular dated 7.6.1999.

15. As a result, if the pension of a retiree is determined by taking into account NPA as part of 'pay' and the pension so determined is more than 50% of minimum pay in the revised scale of pay, he would continue to get such higher pension. This would happen in the case of all those who retired on or after 1.1.1996. If the pension determined by taking into account NPA as part of pay, is less than 50% of the minimum pay in the revised scale of pay, his pension would be stepped up to 50% of the minimum pay in the revised scale of pay. This would happen in the case of pre 1996 retirees.

16. The petitioners want to read the words "not less than 50% of the minimum pay in the revised scale of pay" in the Circular dated 7.6.1999, as "not less than 50% of the minimum pay in the revised scale of pay plus NPA". When the language used is clear and unambiguous and the intention is also clear, it is not permissible to add words to the Circular dated 7.6.1999 to satisfy what petitioners consider to be just and reasonable. "Minimum pay in the revised scale of pay" refers only to the initial pay in the revised scale of pay and not anything more. Due to a misinterpretation, NPA was included for the purpose of giving the benefit of stepping up the pension in the case of retired medical officers. The fact that NPA had already been taken into account while calculating the 'existing pension' of the medical officers who retired before 1.1.1996 was lost sight of. The fact that NPA is part of 'pay' and not part of 'basic pay' was also overlooked. Therefore, it became necessary to issue the clarification, which was done by circular dated 11.9.2001, clarifying that it was impermissible to again add NPA to 'the minimum pay in the revised pay scale' for the purpose of stepping up the pension.

17. Another grievance of the petitioners is that prior to circular dated 7.6.1999, the pay and pension of medical officers was always more than the pay and pension of non-medical officers of the same rank, in view of NPA element, and by virtue of the clarificatory circular dated 11.9.2001, the pension of both categories, (Medical Officers and non-Medical Officers), who retired prior to 1996, became equal. The petitioners contend that even after stepping up under Circular dated 7.6.1999, the disparity which earlier existed between Medical Officers and Non-Medical Officers of the same rank, should be maintained. They point out that if the pension of medical officers and non-medical officers of the same rank should be the same, the purpose of giving NPA as part of pay to Medical Officers was defeated and NPA became illusory. We cannot agree. When the purpose of stepping up pension is to ensure that all retirees of the same rank get pension which is not less than the prescribed minimum, it would be unjust for a section to say that merely because they were earlier enjoying a higher pension than others of the same rank, such disparity should be continued, even after stepping up. When the object of stepping up of pension is to bring in parity and avoid disparity, the claim of petitioners that disparity should be continued cannot be accepted.

18. We, therefore, hold that circular dated 11.9.2001, is only a clarification to correct the wrong interpretation of the circular dated 7.6.1999. It neither amends nor modifies the circular dated 7.6.1999. " (emphasis supplied)

15. The 2nd issue considered by the Honble Apex Court is - whether the Circular dated 7.6.1999 as clarified by Circular dated 11.9.2001, leads to unequal treatment of those who retired prior to 1.1.1996 and those who retired after 1.1.1996 solely with reference to date of retirement? Honourable Apex Court determined the issue in the following way: "19. The petitioners next contend that in the case of Medical Officers who retired on or after 1.1.1996, even after the Circulars dated 7.6.1999 and 11.9.2001, NPA is added to basic pay for the purpose of calculating the pension, whereas in the case of pre 1996 retirees, NPA is not being added and that amounts to discrimination. This is a misleading contention. In the case of those retiring on or after 1.1.1996, NPA is added to basic pay, to determine their pension, and not for stepping up the pension. In the case of pre 1996 retirees, as NPA was already added while determining their pension, the question of adding it again, for purposes of stepping up the pension, does not arise. (emphasis supplied)

20. The principles relating to pension relevant to the issue are well settled. They are : (a) In regard to pensioners forming a class, computation of pension cannot be by different formula thereby applying an unequal treatment solely on the ground that some retired earlier and some retired later. If the retiree is eligible for pension at the time of his retirement and the relevant pension scheme is subsequently amended, he would become eligible to get enhanced pension as per the new formula of computation of pension from the date when the amendment takes effect. In such a situation, the additional benefit under the amendment, made available to the same class of pensioners cannot be denied to him on the ground that he had retired prior to the date on which the aforesaid additional benefit was conferred. (b) But all retirees retiring with a particular rank do not form a single class for all purposes. Where the reckonable emoluments as on the date of retirement (for the purpose of computation of pension) are different in respect of two groups of pensioners, who retired with the same rank, the group getting lesser pension cannot contend that their pension should be identical with or equal to the pension received by the group whose reckonable emolument was higher. In other words, pensioners who retire with the same rank need not be given identical pension, where their average reckonable emoluments at the time of their retirement were different, in view of the difference in pay, or in view of different pay scales being in force. (c) When two sets of employees of the same rank retire at different points of time, it is not discrimination if :

(i) when one set retired, there was no pension scheme and when the other set retired, a pension scheme was in force.

(ii) when one set retired, a voluntary retirement scheme was in force and when the other set retired, such a scheme was not in force; or

(iii) when one set retired, a PF scheme was applicable and when the other set retired, a pension scheme was in place. 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 of the 'same class' or 'homogeneous group'. The employer can validly fix a cut-off date for introducing any new pension/retirement scheme or for discontinuance of any existing scheme. What is discriminatory is introduction of a benefit retrospectively (or prospectively) fixing a cut off date arbitrarily thereby dividing a single homogeneous class of pensioners into two groups and subjecting them to different treatment. [Vide D.S. Nakara v. Union of India [1983 (1) SCC 305], Krishna Kumar v. Union of India [1990 (4) SCC 207], Indian Ex-Services League v. Union of India [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].

21. As noticed earlier, pension is determined with reference to the applicable rules/orders governing pension. The Ministry's Circular dated 7.6.1999 comes in, only to step up the pension from 1.1.1996, if the pension calculated in accordance with the rules/orders is less than 50% of the minimum pay in the revised scale of pay introduced with effect from 1.1.1996. There is no need to step up the pension of those who retired on or after 1.1.1996, as their pension will be more than or in no event less than the minimum provided under the circular dated 7.6.1999. The stepping up is required only to those who retired prior to 1.1.1996 as their pension was lower on account of the fact that their reckonable emoluments for purpose of calculation of pension, was based on the old scales of pay. Let us take the case of a Medical Officer of the rank Lt. General, with 33 years of service, who retired in the year 1998 after getting two increments in the revised pay scale. As the applicable pay scale is Rs.22400-525-24500, his basic pay would have been Rs.23,450/- at the time of retirement. 25% thereof namely Rs.5863/- would be the NPA. If the reckonable emolument was Rs.29313/-, pension will be 50% thereof, namely Rs.14656/-. As the pension under the Rules (Rs.14656/-) was more than 50% of the minimum of revised pay scale (Rs.11200/-) assured under the circular dated 7.6.1999, the benefit of stepping up is not required in his case. It is only those whose pension was determined with reference to old scales of pay, and not the revised higher scale of pay, who require the benefit of the stepping up. Therefore, the contention that pre 1996 retirees and post 1.1.1996 retirees are being treated differently, is untenable. They are treated similarly. But the fact that post 1.1.1996 retirees do not require the benefit of stepping up, cannot by any stretch of imagination, give rise to a contention that the benefit given to pre-1996 retirees by way of stepping up, amounts to discrimination. (emphasis added)

22. The contention that NPA is taken into account in the case of post 1.1.1996 retirees but not pre 1996 retirees is untenable. NPA is taken as part of 'pay' in the case of both pre and post 1.1.1996 retirees. NPA is not taken into account in the case of any retiree for applying the stepping up benefit under circular dated 7.6.1999. It is a different matter that post 1.1.1996 retirees do not require the benefit under the circular dated 7.6.1999. As already noticed, while calculating pension of the pre 1996 retirees, NPA had already been taken into account as part of 'pay', and that pension which was determined after taking into account NPA, is found to be less than the minimum guaranteed under the circular dated 7.6.1999, their pension is being increased to the minimum provided in the circular dated 7.6.1999. NPA cannot again be added to the minimum to step up the pension. If that is done, it will amount to taking NPA into account twice for purposes of pension, which is impermissible. The contention of discrimination between pre 1.1.1996 retirees and post 1.1.1996 retirees is, therefore, imaginary. " (emphasis added)

16. The 3rd issue is extremely important from the point of view of the controversy raised by the applicants in both OAs. Whether the respondents having accepted and implemented the decision of the Delhi High Court in Dr. K.C. Gargs case (supra) and connected cases decided on 18.5.2002 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? In following paragraphs the issue was addressed and determined by the Honourable Supreme Court: "23. It was alleged that in the case of civilian medical officers, the nodal Ministry had issued circulars dated 17.12.1998 and 29.10.1999 (corresponding to the Defence Ministry's Circulars dated 7.6.1999 and 11.9.2001); that some civilian Medical Officer Retirees had challenged the said circular dated 29.10.1999 directing that NPA shall not be added to minimum pay in the revised scale, before the Delhi High Court; that the High Court had allowed the said writ petitions (CWP No.7322/2001 and connected cases _ K. G. Garg vs. Union of India) by order dated 18.5.2002; and that the said order was not challenged by the Union of India, but on the other hand, was implemented by adding NPA to basic pay while stepping up the pension in the case of civilian Medical Doctors who had retired prior to 1.1.1996. It is contended that the Respondents having accepted and implemented the decision of the Delhi High Court in the case of civilian medical officers, cannot discriminate against the Defence service medical officers placed in identical position and therefore the benefit given to the civilian medical officers in pursuance of the decision of the Delhi High Court should also be extended to them. The petitioners rely on the broad principles underlying estoppel by Judgment, legitimate expectation, and fairness in action in support of their contention.

24. Respondents have filed an affidavit dated 1.8.2006 admitting that in pursuance of the decision of the Delhi High Court, the circular dated 29.10.999 had been withdrawn but clarified that it was withdrawn only in regard to the civilian medical officers who were petitioners in the said writ petititions 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 vs. Digambar [1995 (4) SCC 683]. This Court held : "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, that even where S.L.Ps are filed by the State against judgments of High Court, such S.L.Ps 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 S.L.Ps 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 S.L.P. or S.L.Ps in other similar matters where it is considered on behalf of the State that non-filing of such S.L.P. or S.L.Ps and pursuing them is likely to seriously jeopardize 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 realized, 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 petitioners plead and prove that the State had adopted a 'pick and choose' method only to exclude petitioners on account of malafides 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 State defending or enforcing its circular dated 11.9.2001." (emphasis supplied)

17. In view of the above, the challenge to the validity of the circular dated 11.9.2001 was rejected by the Hon'ble Apex Court. We note that the Hon'ble Apex Court has laid the law in the matter of controversy and we do not have any ground what so ever to think differently. The present OAs are covered in all fours by the above law laid by Hon'ble Supreme Court in Col. (Retd.) B. J. Akkara's case (supra) The judgments in Dr. KC Garg's case (supra) and in Dr. G. D. Hoonka's case (supra) are meant for the petitioners in the respective cases during the 5th CPC and will not be applicable in the 6th CPC.

18. In a batch of 15 Writ Petitions, the Honble High Court of Delhi considered the same controversy where the pre-1996 retiree Doctors have approached the Honble High Court against the orders passed by the Full Bench of this Tribunal in OA No.1927/2006 along with 14 other connected OAs whereby the Full Bench dismissed the OAs seeking inclusion of NPA as part of minimum pay for revision of the pension w.e.f. 01.01.1996 for calculation of pension payable to them in terms of 5th CPC recommendations. Directing those who retired prior to 01.1.1996 should be treated alike regarding calculation of their pension as on 1.01.1996 by allowing the same weightage as may be allowed to the serving employees. However, the consolidated pension will not be less than 50% of the minimum revised pay scale of the post held by the Pensioners at the time of retirement. The issue presently considered by us though relates for the pension refixation w.e.f. 01.01.2006, the issue which was considered in the batch of Writ Petitions by the Honble High Court of Delhi being same, we note that ratio decidendi covers the issues of the present OAs. The lead Writ Petition in the case in Dr. K. C. Bajaj and Others versus Union of India and another [WP (C) No.8973/2009). While dismissing the Writ Petitions filed by the petitioners who are pre-1996 retirees, the Honble High Court has taken into account the decisions rendered by the Honble High Court of Delhi in Dr. K. C. Gargs case (supra) and the judgment of Madhya Pradesh High Court in Dr. J. D. Hoonkas case (supra) and ultimately followed the law led by Honble Supreme Court in Col. (Retd.) B. J. Akkaras case (supra). It was held that the OM dated 17.12.1998 and 29.10.1999 issued by the Ministry of Personnel, Public Grievances and Pensions and the Circulars dated 07.06.1999 and 11.09.2001 issued by the Ministry of Defence are identically worded, the formula for calculation of pension in respect of Doctors involved in both the cases are same i.e. 50% of the average emoluments. Further the formula for calculation of average emoluments in respect of the Doctors involving in both the case are same and the Honble High Court held that no distinction could be brought in between the judgment of Honble Supreme Court in Col. (Retd.) B. J. Akkaras case (supra) and the case being considered by the High Court. Honble Justice Mr. Mool Chand Garg (author of the judgment) while upholding the judgment of the Full Bench of the Tribunal has held as follows:- 32. According to the Tribunal the answer provided by the Supreme Court to the aforesaid question puts a quietus to the argument that the applicants are entitled to the benefit of the order of Dr.K.C.Gargs judgment. It was specifically held on the basis of Akkaras case while answering question No.II while calculating pension of Pre-1996 retirees, NPA has already been taken into account as part of pay? and that pension which has been determined after taking into account NPA, is found to be less than the minimum guaranteed under the circular dated 07.06.1999, their pension is being increased to minimum provided in the circular dated 07.06.1999 and thus NPA cannot again be added to the minimum of stepped up pension and if that is done, it will amount to taking NPA into account twice for purposes of pension which is impermissible and would create a discriminatory situation between pre-1996 and post-1996 retirees. It was held that in view of Akkaras case neither the law laid down in K.C. Gargs case nor in the Hoonkas case helps the petitioners.

33. In view of the discussion held above and the observation made by the Supreme Court in Akkaras case which is a judgment binding upon this Court in view of Article 142 of the Constitution of India and wherein the decision given in Dr.K.C. Gargs case and Hoonkas case has been discussed and distinguished, we have to go by the judgment delivered by the Apex Court as aforesaid in Akkaras case and therefore, we do not find any reason to differ with the view taken by the Tribunal and accordingly the writ petitions are dismissed with no orders as to costs. Honble Justice Mr. Pradeep Nandrajog agreeing with the observations of Honble Mr. Justice Mool Chand Garg in the said judgment granting additional emphasis has held as follows:- 49. Having regard to the aforesaid facts, no fault can be found with the decision of the CAT that the ratio laid down by W.P.(C) No.8973/2009 & Connected Matters Page 54 of 55 Supreme Court in Akkaras case (supra) is applicable to the present case on all fours. Applying the ratio laid down by Supreme Court in Akkaras case (supra), we hold that expression minimum pay in the revised scales of pay occurring in the office memorandum dated 17.12.1998 is to be interpreted to mean initial pay in the revised scales of pay; and NPA is not required to be added to minimum pay envisaged under the office memorandum dated 17.12.1998 and that the office memorandum dated 29.10.1999 is only a clarification to the office memorandum dated 17.12.1998.

50. In view of the above discussion, we find no merit in the present petition(s). The impugned judgment dated 29.10.2009 passed by CAT, Principal Bench, New Delhi is upheld.

19. In the context of the above judgment of High Court upholding the decision of this Tribunal in OA No.1927/206 with 14 other OAs, it would be appropriate for us to take the extract of the pertinent paragraphs of Full Bench judgment, which thus reads:- 19. The answer provided by their Lordship would put a quietus to the argument that the applicants before us are entitled to the benefits of the orders of Honble court of Delhi rendered in K. C. Gargs case (supra). Thus, the very substratum on which all these OAs are planted stands broken and splintered.

20. On Question No.(i) i.e. whether the Circular dated 11.9.2001, is only a clarification, or an amendment, to the Circular dated 7.6.1999, it was held that it is only a clarification to correct the wrong interpretation of the circular dated 7.6.1999 and it neither amends nor modifies the circular dated 7.6.1999.

21. On Question No.(ii), it was held that while calculating pension of the pre 1996 retirees, NPA had already been taken into account as part of pay, and that pension which was determined after taking into account NPA, is found to be less than the minimum guaranteed under the circular dated 7.5.1999, their pension is being increased to the minimum provided in the circular dated 7.6.1999 that NPA cannot again be added to the minimum to step up the pension and if that is done, it will amount to taking NPA into account twice for purposes of pension, which is impermissible and the contention of discrimination between pre 1.1.1996 retirees and post 1.1.1996 retirees is, therefore, imaginary.

22. The Honble Supreme Court had elaborately dealt with each question and came to the above conclusions. It may not be out of place to mention that the same Honble Judg,e who penned the judgment in Akkaras case is also the author of the judgment in Dr. G. D. Hoonkas case as his Lordship then was.

23. Since all the points were thrashed out by the Honble Apex Court, threadbare there remains hardly anything for us to embark upon further discussion. All these cases are squarely covered by the decision of the Honble Apex Court in Akkaras case and, therefore, they are liable to be dismissed. The decision of the Calcutta Bench of the Tribunal in Dr. Shib Pada Ghose and 37 others vs. UOI & Ors stands overruled regardless of its binding nature.

24. In the result, all the OAs are dismissed but without costs.

20. We have also given our thoughtful reference to the judgment of Full Bench of this Tribunal in which S-29 Pensioners case was dealt by the Tribunal. It must be noted here that the facts and circumstances and the controversies involved for determination by the Full Bench were far different from those which we are dealing here in the present OAs. Therefore, to draw certain parallel and comparison between the applicability of the said judgment rendered by the Full Bench, may not be admissible, as the Full Bench Judgment would be dissimilar and distinguishable.

21. Having considered the totality of facts and circumstances of the case and having been guided by the law laid by Honble Supreme Court in the matters of Col. (Retd.) B. J. Akkaras case (supra), we are of the considered opinion that the judgment of Honble Supreme Court in Akkaras case would be fully applicable to the controversies in the present OAs. Resultantly, the respondents action in issuing the OM dated 14.07.2009 and the letter dated 23.03.2010 clearly intimating the applicants that while revising the pension of the applicants w.e.f. 01.01.2006, the benefit of NPA would not be extended to them for stepping up their consolidated pension/ family pension, Thus, the impugned order and letter are legally sustainable.

22. Resultantly, both the OAs having no merits are dismissed, leaving the parties, however, to bear their respective costs. (Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/