DR. Y. IBEHAIBI DEVI... v. THE STATE OF MANIPUR...

and this was communicated by the Government of India to the University Grants Commission by a letter of 31^stDecember 2008. The revised scales as per 6^thPay Commission recommendation were to be implemented by the State Governments as well. In the State of Manipur, Manipur Services (Revised Pay) Rules, 2010 were framed in exercise of power conferred under the proviso to Article 309 of the Constitution of India on 5^thMay 2010. Such Rules were to cover those appointed to Civil Services and posts in connection with the affairs of that State and which were under the rule making control of the Government of Manipur. Following the introduction of the Revised Pay Rules, certain modifications were made in the Rules guiding pension and allied benefits of those covered by the civil services rules in that State. These modifications were made by an Office Memorandum dated 5^thMay 2010 bearing no.9/3/2010-FD (PIC) ("O.M. of 5^thMay 2010" in short) introduced by the Governor of Manipur. Though the source of power for making such modifications was not spelt out in the said memorandum, this was made in pursuance of the Government's decision and fits the characteristic of a Rule made under proviso to Article 309 or an executive order made in terms of Article 166 of the Constitution of India.

4. Clause 3.1 of the O.M. of 5^thMay 2010 stipulated:-

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"3.1. Save as otherwise mentioned in these orders, the revised provisions as per these orders shall apply to Government servants who retire/die in harness on or after 01/01/2006, notionally with effect from 01/01/2006 or from the data of retirement whichever is later, as the case may he, with cash payment/actual benefit from 01/04/2010. Separate orders have been issued in-respect of employees who retired/died before 01/01/2006."

(quoted verbatim from paperbook)

5. On 3^rdJune 2011 by way of an order issued in terms of the proviso to Article 309 of the Constitution of India, certain revisions of the scales of pay of different categories of posts in Government Colleges under the Department of Higher Education and Technical Education in the State of Manipur were mandated. This Order was to come into force with effect from 1^stJune 2006 and arrears for the period from 1^stNovember 2010 to 30^thJune 2011 were to be deposited in the respective G.P.F. accounts of the employees. Clause 6 of this Order stipulated:-

"6. Rules relating to pension, family pension, gratuity and encashment of leave, ex-gratia compensation, provident fund, etc. Shall be as applicable to other State Government employees."

(quoted verbatim from paperbook)

6. On 12^thAugust 2011, another Order [bearing no.7(7)/32009- HE(Misc.)Pt.(1)] was issued superseding the Order of 3^rdJune 2011 in relation to different categories of college teachers (and equivalent grades) specifying the revised scale of pay. Clauses 3, 7 and 8 of this Order of 12^thAugust 2011 read:-

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"3. These orders shall come into force nationally with effect from 01/01/2006 with monetary benefit from 01/11/2010 and actual case payment from 01/07/2011. The arrears for the period from 01/11/2010 to 30/06/2011 shall be deposited into their respective G.P.F Accounts of the employees.

However, for those employees who subscribe contribution under the New Pension Scheme and retired/ expired. The arrears for the period from 01/11/2010. To 30/06/2011 shall be released in 2(two) equal instalments, first on 01/01/2012, and second on 01/07/2012.

…….

7. Rules relating to pension, family pension, gratuity and encashment of Leave salary/Leave of any kind, Ex-gratia Compensation, Provident Fund and New Pension Scheme no- win force etc. shall be as applicable to other state Government employees.

8. For those College Teachers/Equivalent Grads who retired/superannuated between 01-01-2006 and 31- 10-2010, Pension shall be calculated on the basis of notional pay and AGP in the revised pay."

(quoted verbatim from the paperbook)

7. On 24^thDecember 2011 the State Government issued a further Office Memorandum contemplating certain clarifications to the department's Order dated 12^thAugust 2011. The areas of doubt and the clarifications given thereto, to the extent these are relevant for adjudication of this appeal, as specified in the said Office Memorandum of 24^thDecember 2011 were:-

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30.06.2011 into GPF of Pension/Leave account actual cash Encashment of those payment from 01.07.2011 college teachers who and release of arrear pay retired/diet in harness and allowance of certain during the period from categories of employees for 01.01.2006. to the period from 30.06.2011 shall be 01.11.2010 to 30.06.2011 calculated on the basis in 2(two) equal of the notional pay w.e.f. installments. However 01.01.2006 or from the Provisions for release of date of retirement or pension and other death whichever is later retirement benefits w.e.f. or on the basis of the 01.11.2010 or 01.07.2011. actual emolument In respect of those college drawn in the pre-revised teachers who retired pay scales whichever is during the period more beneficial to the 01.01.2006 to 31.10.2010 incumbent. The and 01.11.2010 to difference of amount 30.06.2011 were not between the pre revised

mentioned in the order

rate and the revised

under reference. Decision

ratene time payment,

of the Government on the

like, Retirement,

point under reference is

Gratuity/Death

required.

Gratuity/Leave Further referring to Encashment, if found para 8 of the order under more beneficial, shall reference, for those college also be paid. Actual

teachers/equivalent benefit of increased

grades who retired/ Pension/Family

superannuated between Pension on account of

01.01.12006 to revision shall be paid

31.10.2010, as to whether

from 01.11.2010.

their retirement gratuity will be revised or not may In the case of also be clarified. Further, commutation of in respect of those college Pension, benefit will be teachers/equivalent given on the basis of Grades who expired additional amount of during the period. Under pension."

reference as to whether

their family pension/DG

will be revised or not, may

also be clarified.

(Emphasis added)

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8. The dispute involved in this appeal is as to whether the appellants, as retired staffs from different colleges, are to get the benefits of revised pension from the date given in the Office Memorandum of 24^thDecember 2011 or from 1^stApril 2010, the latter date being made applicable to those retired from various state services. The State Government wanted to implement revised pension from 1^stNovember 2010. The appellants invoked the writ jurisdiction of the Manipur High Court, staking their claim for revised pension with effect from 1^stApril 2010. The Single Judge allowed the writ petition by a judgment delivered on 30^thOctober 2015. It was, inter-alia, opined in that judgment:-

"12. Accordingly, this Court is of the view that by the Office Memorandum dated 24.12.2011, as far as the claim of the petitioners for grant of cash payment/actual benefits w.e.f. 1.4.2010 as provided under the Office Memorandum dated 5.5.2010, cannot be taken away and to that extent the aforesaid Office Memorandum dated 24.12.2011 cannot be enforced against the petitioners. This Court has also noted that the aforesaid Office Memorandum dated 24.12.2011 is merely in the nature of clarification without modifying the orders dated 3.6.2011 and 12.8.2011 and also an executive order which cannot prevail upon the Office Memorandum dated 5.5.2010 which has statutory force which governs the retiral benefits and they form a part of the Manipur Civil Services (Pension) Rules, 1977, Commutation of Pension under the Manipur Civil Services (Commutation of Pension) Rules, 2010 and the Manipur Services (Extraordinary Pension) Rules, 1995.

13. Accordingly, for the reasons discussed above, the present writ petition is allowed. The petitioners will be entitled to enjoy the actual benefit of the cash payment/actual payment as regards the pensioary benefits w.e.f. 1.4.2010 and other

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benefits as mentioned in the Office Memorandum dated 5.5.2010 and they shall be also entitled to any other extension of benefits including arrears in terms of the order dated 20.9.2011 or any subsequent orders that may have been passed.

The petitioners who have rendered a long valuable service in the field of education have volunteered to donate a sum of Rs.1000/- each from their entitlements for the benefit of the children of the Children Home managed by the State Government, for which gesture, this Court records its appreciation. The amount so donated by the petitioners will be deposited in the account of the Children Home, Takyelpat, managed by the State Government to be utilised for the immediate and personal needs of the resident children of the Home."

(quoted verbatim from the paperbook)

9. The State Government were successful in their appeal before the Division Bench of the High Court. The Division Bench, in the judgment under appeal, decided on 27^thJanuary 2017, held:-

"[11] It be stated that pursuant to recommendation made by University grants commission and also upon resolution being taken by Ministry of Human Resources, Govt. of India relating to revision of pay, the Government of Manipur came with the revision of pay of the college teachers vide notification dated 12.8.2011. The said order relating to revision of pay scale as per clause 3 of the said notification notionally came into effect from 1.1.2006 with monetary benefit from 1.11.2010 and actual cash payment from 1.7.2011. The arrears for the period from 1.11.2010 to 30.6.2011 was stipulated to be deposited in the GPF Accounts whereas OM dated 5.5.10 was issued in the wake of revision of provisions relating to regulation of pension etc. on account of introduction of the Manipur Services (Revised Pay) Rules 2010. The clause 3.1 does stipulate that provision of it would come into effect from 1.1.2006 and monetary benefit was to be paid from 1.4.2010.

Thus, it is evident that consequent upon revision of salary by virtue of Manipur Services (Revised Pay) Rules,2010 applicable only in case of State Govt. employees the said Office Memorandum dated 5.5.10 dealing with the provision regulating revised pension was required to be issued necessarily stipulating therein about monetary benefit being

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paid from 1.4.2010. The provision relating to enforceability of the Office Memorandum and payment of monetary benefit on account of revision of pay was confined to the Government employees who were being governed by the Manipur Services (Revised Pay)Rules, 2010 whereas the notification dated 12.8.2011 relating to revised scale of pay of the college teachers was issued by the State Govt. upon acceptance of the recommendation of the UGC and Govt. of India and therefore the University teachers would be governed by the stipulation made in that notification which speaks about the monetary benefits being given to them w.e.f. 1.11.2010. The said stipulation has nothing to do with the matter relating to pension for the reason that monetary benefit which was to be given from 1.11.2010 may be related to persons in service and even the persons who got retired. However, if the proposition laid down by the learned single Judge is accepted, a situation which would be quite anomalous would come up whereby the teachers who are in service would be entitled to monetary benefit only w.e.f. 1.11.2010 whereas the retired employees would be getting monetary benefit from 1.4.2010. It be reiterated that dispute is with respect to the date from which teachers of the Universities/colleges will be entitled to have monetary benefits, which dispute never pertains to any rules relating to the pension and thereby there happens to be no applicability of any of the provisions of the OM dated 5.5.2010 whereby provision relating to pension was revised.

[12] Under the circumstances, the learned single Judge by resorting to the provisions under the Office Memorandum dt. 5.5.2010 wrongly held that the petitioners would be entitled to monetary benefit w.e.f. 1.4.2010 and thereby order dated 30.10.2015 is hereby set aside. Consequently, it is held that the petitioners are entitled to have monetary benefit w.e.f. 01.11.2010 and not w.e.f. 1.4.2010. Accordingly, this appeal stands allowed."

10. Mr. Ngangom Junior, learned Advocate appearing for the appellants, has argued that his clients had migrated to the pension regime created for the State Government employees, which was guided by an Order issued by the Governor in pursuance of the decision of the State Government. As we have already discussed earlier in the judgment, power to issue such Order can be traced to

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both Article 166 as also proviso to Article 309 of the Constitution of India. It is not of much significance under which Article the Rules or Order was issued as in either case, the legal instrument would be endowed with statutory strength. We have already quoted Clause 3.1 of the amended Manipur Civil Services (Pension) Rules, 1977 in the earlier part of this judgment. It is not in dispute that the appellants had retired after 1^stJune 2006. The main argument of the appellants has been that since their pension entitlement was covered by a Rule made under proviso to Article 309 of the Constitution of India, the Office Memorandum dated 24^thDecember 2011 could not alter the benefits that the appellants became entitled to under the aforesaid statutory instrument. The stand of the State Government, represented by Mr. Sanjay R. Hegde, learned Senior Advocate, is that the revision of pay scales covers superannuated persons from different services under the State Government including those within the education department itself. His contention is that even after the appellants migrated to the 2010 Rules, they could not claim benefit different from, and more than that the serving staffs of the department from which they originated was enjoying. It has been pointed out that the Order of 12^thAugust 2011 superseded the Order of 3^rdJune 2011

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revising pay of college teachers and we have already reproduced Clause 8 of this Order.

11. It has been emphasised on behalf of the State of Manipur that the Order of 12^thAugust 2011 is not under challenge. It has also been argued on behalf of the State that the appellants who were employed in the Technical and Higher Education Department of the Government of Manipur enjoy pay scales and pensions higher than that of Government employees or those engaged in judicial services in the State of Manipur. On that count, it is urged that their benefits cannot be equated with those of the original employees appointed under the Manipur State Government Service Rules. The judgment under appeal is also sought to be defended on the ground that members from different services under the Government of Manipur were receiving revised pay from different dates. It has also been asserted that the Office Memorandum of 24^thDecember 2011 is only a clarificatory order and the original Order of 12^thAugust 2011 was never assailed by the appellants. Various Cabinet decisions as regards implementation of revision of pay orders were brought to our notice but we need not go into these Cabinet decisions in detail. In this appeal, we are concerned with the legality of the content of the Office Memorandum of 24^thDecember

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2011 to the extent that the same shifts the date of getting actual benefit of pension/ family pension on account of revision from 1^st April 2010 to 1^stNovember 2010.

12. The Order of 12^thAugust 2011 has been issued in the name of the Governor of the State of Manipur. On the rationale we have explained earlier, it can qualify for being an executive order in the terms of Article 166 of the Constitution of India as also a Rule made under proviso to Article 309 of the Constitution of India. But this Order of 12^thAugust 2011 does not lay down any specific stipulation for the retired college teachers or those holding equivalent grades barring clauses 7 and 8 thereof, to which we have referred to earlier in this judgment. These clauses also do not specify the date from which revised pension is to be payable to the retirees. Clause 8 specifies the manner of computation of pension for those who superannuated or retired between 1^stJanuary 2006 and 31^stOctober 2010. Clause 7 on the other hand relates to the pension Rules to be applicable as in the cases of other State Government employees. Therefore, so far as the appellants are concerned, their migration into the regime of the 2010 Rules meant for State Government employees and their entitlement to revised pension from a date applicable to the State Government employees

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has not been excluded by the Order of 12^thAugust 2011 made by the Governor of Manipur, either expressly or by implication.

13. So far as the State Government's employees are concerned, the revisions of provisions regulating pension and ancillary conditions were guided by O.M. of 5^thMay 2010. The subject covered by this memorandum would appear from the following clauses thereof:-

"No.9/3/2010-FD(PIC) : The undersigned is directed to say that in pursuance of Government's decision following the introduction of the Manipur Services (Revised-Pay) Rules, 2010, the Governor of Manipur is pleased to introduce the following modifications in the rules regulating Pension, Retirement / Death / Service Gratuity / Family pension / Disability Pension under the Manipur Civil Services (Pension) Rules, 1977 (hereafter referred to as Pension Rules), Commutation of Pension under the Manipur Civil Services (Commutation of Pension) Rules, 2010 and the Manipur Services (Extraordinary Pension) Rules, 1995.

2. These orders apply to State Government Employees governed by the Manipur Civil Services (Pension) Rules, 1977."

(quoted verbatim from paperbook)

14. No distinction is made in Clause 3.1 of the O.M. of 5^thMay 2010 between different categories of employees, on which distinction Mr. Hegde has emphasised in his arguments. Thus, once the appellants migrate into the Rules guiding other State Government employees, the appellants' service origins become insignificant so far as application of substantive part of the aforesaid revision of Pension Rules is concerned. As we have

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already discussed, Clause 8 of the Order dated 12^thAugust 2011 also does not contemplate special treatment for superannuated staff of higher educational institutions in the State of Manipur to correlate them with the existing staff of their original service for the purpose of date of implementation of the revised pension. Thus, the quantum of pension the appellants would receive vis-à-vis retirees from other services in the State of Manipur would not have impact on the point of law we are examining in this appeal. We are testing in this appeal if the Order passed on 24^thDecember 2011 could postpone the date of entitlement of revised pension to 1^stNovember 2010 for the appellants.

15. The Office Memorandum of 24^thDecember 2011 is in the nature of an administrative order. This Office Memorandum has not been made and executed in the name of the Governor. But this Office Memorandum seeks to take away substantive right of the appellants cemented under Government Order made on 12^th August 2011, read in continuation with the Orders of 5^thMay 2010 and 3^rdJune 2011. In our opinion, the course of action sought to be adopted by the State is impermissible. In terms of Clause 3.1 of the O.M. of 5^thMay 2010, the appellants have acquired a vested right to get revised pension from a date which is applicable to the

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retired State Government employees. The appellants have been placed in the said pension regime, and this has been recognised by Clause 7 of the Order of 12^thAugust 2011.

16. We are unable to agree with the main reasoning of the Division Bench that by giving the appellants the benefit of revised pension with effect from 1^stApril 2010 an anomalous situation would arise as serving staff(s) of higher educational institutions could be getting the benefit of such revision from 1^stNovember 2010. The State has made conscious decision to delink the retirees from the service conditions guiding the serving staffs of the concerned institutions and placed them in the retirement rules meant for those in the Manipur State Service. In such a situation, we do not think the anomaly pointed out in the judgment under appeal could be the guiding factor for fixing the date of entitlement to revised pension benefits specified by the Service Rules. The Office Memorandum of 24^thDecember 2011 though projected as an instrument to clarify a subsisting anomaly to an Office Memorandum having statutory strength, in reality encroaches upon acquired or vested right of the retirees to get such benefit from 1^stApril 2010. Such "clarificatory order" cannot be permitted to override an Order having statutory strength. We accordingly hold

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that the appellants shall be entitled to receive revised pension with effect from 1^stApril 2010, considering the provisions of Clause 7 of the Order of 12^thAugust 2011. The Office Memorandum of 24^th December 2011 would not have any binding effect so far as entitlement of the appellants to receive revised pension from 1^st April 2010 is concerned.

17. Under the circumstances, the judgment under appeal is set aside. We restore and affirm the judgment of the Single Judge dated 30^thOctober 2015.

18. The appeal is accordingly allowed.

19. Pending application(s), if any, shall stand disposed of.

20. There shall be no order as to costs.

……………………………….J.

(VINEET SARAN)

……………………………….J.

(ANIRUDDHA BOSE)

New Delhi;

March 31, 2022

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