Learned counsel for the petitioner rightly relied upon the judgment of the Supreme Court in the case of A.B. Krishna and Ors. v. State of Karnataka and Ors. (1), wherein it has been held that earlier rules cannot be held to have been superseded by latter rules by implication which was further reiterated in a case of Chandra Prakash Tiwari and Ors. v. Sakuntla Sukla and Ors. (2). But here in this case, there arises no question of implied, repeal or replacement of Sixth Schedule rather Notification dated 22.6.2000 itself expressly saved the Sixth Schedule by saying in Sub-clause (ix) of Clause (3) of the Notification that Seventh Schedule shall be inserted after Sixth Schedule. Therefore, the Amendment Scheme 2000, only amended the existing Scheme of 1974 as amended earlier by issuing various amendment notifications time to time (about 30 times as mentioned in Explanatory Note Annex. 5 at page 50 of writ petition), and has not replaced the Sixth Schedule by Seventh Schedule of the Amendment Scheme 2000. (12). The benefits which are not taken away or withdrawn specifically by the amendment of 22.6.2000, cannot be taken away by implication then whether by administrative instructions dated 3.7.2000 (Ex.7), the respondents can deny the special allowance ? It appears from the reading of administrative instructions dated 3.7.2000, it purports to have been issued to implement the provisions of the Amendment Scheme 2000 which is apparent from the subject given instructions itself which is as under :-
Therefore, from the Instructions dated 3.7.2000 itself it is clear that these administrative instructions have been issued to implement the Amendment Scheme 2000 only and not to amend and alter any of the provisions of the scheme and which could not have been done by mere administrative instructions and therefore, respondents also in reply to the writ petition have rightly not taken a stand that by Instruction of 3.7.2000 respondents intend to amend the Amendment Scheme 2000.
2. Brief facts of the case are that the petitioner was working as Senior Assistant in the United Indian Insurance Company Limited (respondent No. 1) at its Jodhpur Branch till he took voluntary retirement on 19.11.1997 after completion of more than 20 years of service. The petitioner's service conditions are governed by the General Insurance (Rationalisation and Revenue of Pay Scales and other conditions of Service of Supervisory, clerical and subordinate Staff) Scheme, 1974 as amended time to time. The principal scheme was published by Notification No. S.O. 326 .(E) dated 27.5.1974. For these conditions, approval was accordance by the Central Government. It is relevant to mention here that the said scheme was amended about 30 times from 1974 to 1999 which is clear from the explanatory memorandum, copy of which is placed in this file at page No. 50. By amendment dated 27.8.1998 benefit of Special Allowance was granted to Class III and Class IV employees of the General Insurance Corporation , of India and its subsidiary companies with effect from 1.7.1976. The employees drawing basic salary of Rs. 5500/- and above were entitled for special allowance of Rs. 170/- per month but with a condition that in case the employees will opt for the Special Allowance, then his conveyance allowance will stand reduced from Rs. 100/- to Rs. 50/- only. Though the petitioner took voluntary retirement with effect from 19.11.1997 and the Notification mentioned above was issued on 27.8.1998 still the petitioner was admitted for benefit of special allowance with effect from 1.7.1996 after deduction of and recovery of conveyance allowance at the rate of Rs. 50/- per month and the petitioner was paid the arrears calculated on the basis of Special Allowance. The petitioner was also paid arrears of difference amount accrued on account of grant of special pay against the head "leave encashment," "pension," "gratuity" etc. While computing revision, this Special Allowance was also taken into consideration. Petitioner placed on record the salary certificate and payment order sheets of revised gratuity and pension.
3. By Notification dated 27.6.2000 (Annex. 5), the Government of India revised the pay scales of the employees of the General Insurance Corporation of India and its subsidiary companies by exercising power given under Section 17A of the Act of 1972. It is mentioned in the Notification Annexure-5 that no employee of the Corporation or its subsidiary companies will be adversely affected by retrospective effect of the Notification. According to the petitioner, there is no clause of abolition of special pay in the Notification dated 22.6.2000, however, the conveyance allowance was increased from Rs. 50/- per month to Rs. 75/- per month with effect from 1.7.2000. After this Notification, the petitioner's pay scale was also revised and he was paid the arrears. But doing so, the respondent No. 1 deducted the amount which was granted to the petitioner under the head of "special allowance". Said deduction was affected in compliance to the administrative instruction dated 3.7.2000 which says that with coming into effect of the Amendment Scheme of 2000 from 1.8.1997, the said Special Allowance shall cease to be payable from 1.8,1997 or the date of fixation of the employee in the revised pay scale, if it be latter. The copy of the administrative instruction is Annexure-7. It is also submitted by the petitioner that the petitioner was getting fixed personal allowance at the rate of Rs. 230/- per month which has been raised to Rs. 360/- per month under the revised pay scale. In para X of the 7th schedule, it is provided that increment component along with D.A. thereon as on 1.11.1993 shall rank for gratuity and encashment of earned leave. According to the petitioner the respondents have not sent proposal for grant of arrears of gratuity on account of above increase in fixed personal pay which is contrary to item No. X of the 7th schedule of the Government Notification dated 22.6.2000. In these circumstances, the petitioner submitted a representation to the respondents on 17.7.2000.
4. The respondents submitted reply to the writ petition and contested the claim of the petitioner on the grounds that the petitioner has concealed material facts from this Court that the petitioner has accepted the arrears on 14.7.2000 under Amendment Scheme 2000 without any protest and the petitioner failed to show any infringement of his legal right to maintain the present writ petition. It is also submitted that Amendment Scheme of 2000 does not provide for grant of Special Allowance and if the petitioner would have chosen not to opt for fixation under the Amendment Scheme 2000, earlier fixation could have been continued but since the petitioner accepted the arrears as per the Amendment Scheme 2000 which provides for revised pay scale and allowances excluding Special Allowance, therefore, after accepting benefit, the petitioner cannot challenge the scheme. According to the respondent, since the schedule 6th which was in force earlier giving benefit of the Special Allowance has been replaced by 7th schedule of Amendment Scheme 2000 and since 7th schedule contains no provision for Special Allowance, therefore, the petitioner is not entitled for Special Allowance. For the purpose of pension and gratuity and encashment of earned leave etc. it is submitted that in all such cases where the allowances have been revised, only the pre-revised portion of the allowance will rank for pension, gratuity and encashment of earned leave etc. For administrative instructions issued on 3.7.2000, it is stated that administrative instructions run in consonance with the Amendment Scheme 2000.
5. The petitioner submitted detailed rejoinder to the reply of the respondent in which the petitioner denied the allegation of suppression of facts and plea of acquiescence raised by the respondent and reiterated what the petitioner has said in the writ petition and supplemented further grounds in support of his pleas taken in the writ petition.
6. I considered the rival submissions of the learned counsel for the parties and perused the record. The principal disputes between the petitioner and the respondents are that, what is the effect of amendment dated 22.6.2000 with reference to certain benefits which are claimed by the petitioner and denied by the respondents. Whether the 7th schedule inserted in the Scheme of 1974 by amendment dated 22.6.2000 replaced the 6th schedule of the Scheme of 1974 which was in existence prior to coming into force of 7th schedule. Whether the benefits which were available to the employees like Special Allowance has been taken away by introduction of the amendment of 22.6.2000 and whether the administrative instructions dated 3.7.2000 runs contrary to the amendment of 22.6.2000 and cannot be given effect to.
7. According to the learned counsel for the petitioner, right accrued to the petitioner by virtue of coming into force of provision for grant of Special Allowance by Notification dated 27.8.1998. The Notification dated 22.6.2000 nowhere withdraws the benefit of Special Allowance which was granted by the Notification dated 27.8.1998. It is also submitted that a bare reading of Notification dated 22.6.2000, it is clear that by this Notification the 6th schedule has not been replaced but has been modified only. Learned counsel for the petitioner referred various clauses contained in the Notification dated 22.6.2000 whereas the learned counsel for the respondents submits that by scheme dated 22.6.2000 amendments have been made and the pay scales have been revised and this revision has been done after taking into account the various allowances which stand merged in the revised pay scale and the allowances which are given in the 7th schedule only remained applicable to the employees which is clear from the reading of 7th schedule. In 7th schedule, various allowances like functional allowance, other functional allowance, dearness allowance, allowance for technical qualification, graduation allowance, house rent allowance, city compensatory allowance with fixed personal allowance and many other allowances have been kept. The amount of the cycle allowance has been raised but the Special Allowance which was available in schedule 6th has not been kept in 7th schedule, therefore, the petitioner has no right to claim the personal allowance or the benefit on the basis of his claim of enhanced gratuity.
8. Objection with respect to the conduct of the petitioner on the ground that he has accepted the benefit of revised pay scale under the amendment of 22.6.2000 and the Union of India has not been impleaded as party in the writ petition appears to have been raised on assumption that the petitioner is challenging the Amendment Scheme 2000 where as petitioner has not challenged the Amendment Scheme 2000 and in fact he is asserting that he is entitled for the benefit under the Amendment Scheme 2000 in addition to the benefit of Special Allowance under the schedule 6th has not been replaced by the schedule 7th by Amendment Scheme 2000. The petitioner has not suppressed any material fact in the writ petition nor acceptance of the benefit, which accrued to the petitioner by the amendment dated 22.6.2000, deprives the petitioner from saying that he is entitled to the both benefits.
9. The contention of the learned counsel for the respondents that 6th schedule has been replaced by 7th schedule appears to be not correct in view of the Sub-clause (ix) of Clause (3) of the Notification dated 22.6.2000 which is as under :-
"(ix) after the Sixth Schedule, the following Seventh Schedule shall be inserted, namely:-"
10. Further, in view of the clear language of the Sub-clause (ix) of Clause (3) of Notification dated 22.6.2000 it is beyond doubt that 6th schedule has not been replaced by the 7th schedule of the Notification dated 22.6.2000. The opening para of the Notification dated 22.6.2000 is also relevant which also specifically say, it is scheme to further amend, Scheme of 1974. Opening para of the Amendment Scheme 2000 is as under:-
"S.O. 589(E)- In exercise of the power conferred by Section 17A of the General Insurance Business (Nationalisation) Act, 1972 (57 of 1972), the Central Government hereby makes the following scheme, to further amend the General Insurance (Rationalisation) and revision of pay scale and other conditions of service of supervisory, clerical and subordinate staff) Scheme, 1974 (hereinafter referred to as 'the said scheme', namely :-...."
11. By various clauses in the Notification dated 22.6.2000, various modifications and amendments have been made in the service conditions. Even by Clause (3) of the Notification dated 22.6.2000, certain amendments have been made in the Sixth Schedule which can be made only when Notification dated 22.6.2000 does not repeal or replace the Sixth Schedule and by Sub-clause (ix) of Clause (3) nothing left for saying that Sixth Schedule has been replaced by Seventh Schedule. Therefore, any benefit which was available to the petitioner under the provision of Sixth Schedule and has not been taken away specifically by the Notification dated 22.6.2000, cannot be denied on the ground of merely coming into force of Amendment Scheme 2000. Learned counsel for the petitioner rightly relied upon the judgment of the Supreme Court in the case of A.B. Krishna and Ors. v. State of Karnataka and Ors. (1), wherein it has been held that earlier rules cannot be held to have been superseded by latter rules by implication which was further reiterated in a case of Chandra Prakash Tiwari and Ors. v. Sakuntla Sukla and Ors. (2). But here in this case, there arises no question of implied, repeal or replacement of Sixth Schedule rather Notification dated 22.6.2000 itself expressly saved the Sixth Schedule by saying in Sub-clause (ix) of Clause (3) of the Notification that Seventh Schedule shall be inserted after Sixth Schedule. Therefore, the Amendment Scheme 2000, only amended the existing Scheme of 1974 as amended earlier by issuing various amendment notifications time to time (about 30 times as mentioned in Explanatory Note Annex. 5 at page 50 of writ petition), and has not replaced the Sixth Schedule by Seventh Schedule of the Amendment Scheme 2000. (12). The benefits which are not taken away or withdrawn specifically by the amendment of 22.6.2000, cannot be taken away by implication then whether by administrative instructions dated 3.7.2000 (Ex.7), the respondents can deny the special allowance ? It appears from the reading of administrative instructions dated 3.7.2000, it purports to have been issued to implement the provisions of the Amendment Scheme 2000 which is apparent from the subject given instructions itself which is as under :-
"
Re: Administrative Instructions of implementation of provisions of General Insurance (Rationalisation & Revision Pay Scales and Other Conditions of Service of Supervisory, Clerical and Subordinate Staff) Amendment Scheme, 2000.
13. Therefore, from the Instructions dated 3.7.2000 itself it is clear that these administrative instructions have been issued to implement the Amendment Scheme 2000 only and not to amend and alter any of the provisions of the scheme and which could not have been done by mere administrative instructions and therefore, respondents also in reply to the writ petition have rightly not taken a stand that by Instruction of 3.7.2000 respondents intend to amend the Amendment Scheme 2000.
(14). Now the question comes for consideration is that whether Administrative Instructions dated 3.7.2000 are in consonance of the Amendment Scheme 2000 or it misinterpreted the Amendment Scheme 2000. Admittedly the communication dated 3.7.2000 is administration instruction, still it contains Clause 9.1, the part of which is objected by the petitioner in this administrative instruction is as under :-
"It may be noted that while building the revised scales of pay, the Special Allowance which was payable with effect from 1,7.1996 as per Amendment Scheme, 1998 dated 27.8.1998, was taken into account. With the revised scales coming into effect from 1.8.1997, the said Special Allowance shall cease to be payable from 1.8.1997 or the date of fixation in the revised scale of pay, if it be later."
15. By this the Amendment Scheme of 2000 sought to be interpreted by holding that in revising the pay scale, the Special Allowance which was payable with effect from 1.7.1996 as per amendment scheme of 1998 dated 27.8.1998 has also been taken into account, therefore, the said special allowance shall cease to be payable from 1.8.1997 or the date of fixation of the employee in revised pay scale. But it is clear from the Amendment of 2000 that, the Special Allowance has been merged into new pay scale is not mentioned in the Scheme of 2000. Amendment Scheme 2000 nowhere say that after amendment of 2000 all allowances or the Special Allowance which were payable under Sixth Schedule stands withdrawn. Contention of the respondents that Seventh Schedule has replaced the Sixth Schedule has not been found correct as held above. By para 3 of the Amendment Scheme 2000, certain clauses of the Sixth Schedule have been amended but para (xii) of Sixth Schedule which provides grant of Special Allowance, neither has been amended nor withdrawn. No new provision of Special Allowance has been made in Seventh Schedule to suggest intention to withdraw Special Allowance granted by Notification dt. 27.8.1998. Despite contest on this very point the respondents did not place on record any document on the basis of which it can be found out that in fact the Special Allowance has been merged in the revised pay scale. The Amendment Scheme of 2000 contains no clause saying so. Therefore, there appears to be no basis for interpreting the Amendment Scheme of 2000 in the manner in which it has been interpreted by administrative instructions dated 3.7.2000 and there is no force in the plea of the respondents that the administrative instructions are in consonance to the Amendment Scheme 2000 while interpreting the matter relating to Special Allowances.
16. In addition to above even, for the sake of argument if it is accepted that benefit of Special Allowance stands withdrawn even then question arises is, whether benefit which was given to the petitioner by Notification Dt. 27.8.1998 stand withdrawn retrospectively by Amendment Scheme 2000? And whether the respondents can recover the amount of Special Allowance paid to the petitioner before coming in to force of the Amendment Scheme 2000. It will be relevant to look into facts again. The benefit of Special Allowance was given by Notification dt. 27.8.1998. Petitioner was paid Special Allowance by the respondents in the month of September 1998. After this the Amendment Scheme 2000 came in force in the year 2000. Sub-para (2) of the para 1 of the Amendment Scheme 2000 made the Scheme of 2000 effective from 1st August 1997. There is no provision in the Scheme of 2000 providing of repayment or recovery of the Special Allowance paid to the employees which was paid to the employees before coming into force of the Scheme of the 2000 nor it has been provided in the Scheme of 2000 that in case an employee will opt for pay scale in Scheme of 2000, he will have to return the benefit of Special Allowance which he has already received under provisions of Sixth Schedule.
17. Learned counsel for the non-petitioners relies upon para 10 and 11 of the Amendment Scheme 2000 in support of his plea that after coming into force of the Scheme of 2000 the employees are not entitled to Special Allowance because of it has been taken in account while revising pay scale. Para (10) and (11) inserted by Scheme of 2000 are as under :-
"(10) With effect from 1st day of August 1997, the pay and allowances of every employee shall be in accordance with the modified terms. The Basic Salary of every employee in service as on that date and of every employee appointed after that date but before the date of publication of this scheme in the Official Gazette shall be in accordance with the modified scales of pay as per the provisions of paragraph 6E."
"(11) Every employee whose Basic Salary is fixed in the modified scales of pay in accordance with the provisions of paragraph 6E of this Scheme shall be paid, from the date of fixation in the modified scale of pay, for the period commencing from the 1st day of August, 1997 or the date of his appointment, or the date from which he opts to be governed by the provisions of this scheme, whichever is later, the difference of Basic Salary. Personal Pay, if any, dearness allowance and other allowances (after deducting the employee's compulsory contribution to the Provident Fund), between the "modified terms" and the "altered terms" applicable to him:
Provided that :-
(i) In the case of an employee who had retired from service after the '1st day of August 1997 shall be paid the difference in amount, as specified in sub-paragraph (11), for the period up to the date of his retirement along with the difference in amount of gratuity, if any, arising out of this scheme.
(ii) .....
The Proviso added after sub-para (10) & (11) quoted above says that the employee who had retired from service after 1st August 1997 shall be paid the difference in amount, as specified in sub-para (11) (Basic Salary) for a period up to his retirement. The sub-para (11) deals with only Basic Salary and with allowances or Special allowance. In these provisions also provision to pay difference amount of Basic Salary to the retired employees has been made but this revision of Basic Salary has not been made subject to refund of benefit of Special allowance by the employee. Withdrawal of benefit and refund of amount paid to the employee cannot be by implication. It is required to be made specifically. Therefore, the benefit of Special Allowance already granted and paid to the petitioner neither stand withdrawn nor petitioner is required to surrender the benefit of Special Allowance for getting the benefit of revised pay scale as per the Amendment Scheme 2000.
(18). In addition to above, it is clear from the judgment of the Supreme Court namely, Chairman, Railway Board and Ors. v. C.R. Rangadhamaiah and Ors. (3), and the judgment of this Court in the case of Mahaveer Singh v. State of Raj. (4), Smt. Gyan Gehlot v. The Speaker, Rajasthan Legislative Assembly and Ors. (4), that the benefit of revision of pay once granted cannot be withdrawn. In the case of Chairman, Railway Board (supra) Hon'ble Supreme Court held that pension as admissible under the Rules in force at the time of retirement if reduced retrospectively, it is unreasonable and arbitrary and reduction is not permissible. Therefore, the benefits which accrued to the petitioner by Notification dated 27.8.1998 and in compliance of which arrears have been paid to the petitioner that too, by reducing the conveyance allowance from Rs. 100/- to Rs. 50/-, cannot be taken away by the respondents. It is also clear from the Note appended to the Notification dated 27.8.1998 that the Union of India made it clear that by retrospective operation of this amendment, none of the employee will have any adverse effect, therefore, also once the allowance has been granted under the Notification of 1998 and it has not been specifically withdrawn then the respondent cannot deny the benefit of Notification of 1998. Grievance of the petitioner with respect to the re-calculation of gratuity amount payable is concerned I do not find any force because how gratuity amount is to be calculated is clearly provided in Amendment Scheme 2000.
(19). Therefore, the writ petition of the petitioner deserves to be partly allowed and hence allowed and it is held that Sixth Schedule General Insurance (Rationalisation and Revision of Pay Scales and other conditions of Service of Supervisory, clerical and subordinate Staff) Scheme, 1974 has not been repealed or replaced by the Seventh Schedule by Amendment Scheme 2000. The special allowance payable to the petitioner is pursuance to the Notification dated 27.8.1998 has not been withdrawn by the Amendment Scheme 2000. Therefore, the petitioner is entitled to the benefit arising out of the Notification dated 27.8.1998 regarding Special Allowance and leave encashment even after coming into force of Amendment Scheme of 2000 and consequential benefits. The petitioner is entitled to the benefit of the gratuity amount as per the Clause (10) of the amendment scheme; 2000 and if any amount has been recovered from the petitioner by adjusting or otherwise from the amount of petitioner by the respondents or any amount has not been paid to the petitioner for which the petitioner is held entitle for by this judgment, the same be paid to the petitioner within a period of two months from the date of judgment. No order as to costs.
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Therefore, from the Instructions dated 3.7.2000 itself it is clear that these administrative instructions have been issued to implement the Amendment Scheme 2000 only and not to amend and alter any of the provisions of the scheme and which could not have been done by mere administrative instructions and therefore, respondents also in reply to the writ petition have rightly not taken a stand that by Instruction of 3.7.2000 respondents intend to amend the Amendment Scheme 2000.
Rajasthan High Court
Anil Bhandari vs United India Insurance Co. Ltd. ... on 27 May, 2003
Equivalent citations: RLW 2003 (4) Raj 2523, 2003 (4) WLC 403
1. Heard learned counsel for the parties.2. Brief facts of the case are that the petitioner was working as Senior Assistant in the United Indian Insurance Company Limited (respondent No. 1) at its Jodhpur Branch till he took voluntary retirement on 19.11.1997 after completion of more than 20 years of service. The petitioner's service conditions are governed by the General Insurance (Rationalisation and Revenue of Pay Scales and other conditions of Service of Supervisory, clerical and subordinate Staff) Scheme, 1974 as amended time to time. The principal scheme was published by Notification No. S.O. 326 .(E) dated 27.5.1974. For these conditions, approval was accordance by the Central Government. It is relevant to mention here that the said scheme was amended about 30 times from 1974 to 1999 which is clear from the explanatory memorandum, copy of which is placed in this file at page No. 50. By amendment dated 27.8.1998 benefit of Special Allowance was granted to Class III and Class IV employees of the General Insurance Corporation , of India and its subsidiary companies with effect from 1.7.1976. The employees drawing basic salary of Rs. 5500/- and above were entitled for special allowance of Rs. 170/- per month but with a condition that in case the employees will opt for the Special Allowance, then his conveyance allowance will stand reduced from Rs. 100/- to Rs. 50/- only. Though the petitioner took voluntary retirement with effect from 19.11.1997 and the Notification mentioned above was issued on 27.8.1998 still the petitioner was admitted for benefit of special allowance with effect from 1.7.1996 after deduction of and recovery of conveyance allowance at the rate of Rs. 50/- per month and the petitioner was paid the arrears calculated on the basis of Special Allowance. The petitioner was also paid arrears of difference amount accrued on account of grant of special pay against the head "leave encashment," "pension," "gratuity" etc. While computing revision, this Special Allowance was also taken into consideration. Petitioner placed on record the salary certificate and payment order sheets of revised gratuity and pension.
3. By Notification dated 27.6.2000 (Annex. 5), the Government of India revised the pay scales of the employees of the General Insurance Corporation of India and its subsidiary companies by exercising power given under Section 17A of the Act of 1972. It is mentioned in the Notification Annexure-5 that no employee of the Corporation or its subsidiary companies will be adversely affected by retrospective effect of the Notification. According to the petitioner, there is no clause of abolition of special pay in the Notification dated 22.6.2000, however, the conveyance allowance was increased from Rs. 50/- per month to Rs. 75/- per month with effect from 1.7.2000. After this Notification, the petitioner's pay scale was also revised and he was paid the arrears. But doing so, the respondent No. 1 deducted the amount which was granted to the petitioner under the head of "special allowance". Said deduction was affected in compliance to the administrative instruction dated 3.7.2000 which says that with coming into effect of the Amendment Scheme of 2000 from 1.8.1997, the said Special Allowance shall cease to be payable from 1.8,1997 or the date of fixation of the employee in the revised pay scale, if it be latter. The copy of the administrative instruction is Annexure-7. It is also submitted by the petitioner that the petitioner was getting fixed personal allowance at the rate of Rs. 230/- per month which has been raised to Rs. 360/- per month under the revised pay scale. In para X of the 7th schedule, it is provided that increment component along with D.A. thereon as on 1.11.1993 shall rank for gratuity and encashment of earned leave. According to the petitioner the respondents have not sent proposal for grant of arrears of gratuity on account of above increase in fixed personal pay which is contrary to item No. X of the 7th schedule of the Government Notification dated 22.6.2000. In these circumstances, the petitioner submitted a representation to the respondents on 17.7.2000.
4. The respondents submitted reply to the writ petition and contested the claim of the petitioner on the grounds that the petitioner has concealed material facts from this Court that the petitioner has accepted the arrears on 14.7.2000 under Amendment Scheme 2000 without any protest and the petitioner failed to show any infringement of his legal right to maintain the present writ petition. It is also submitted that Amendment Scheme of 2000 does not provide for grant of Special Allowance and if the petitioner would have chosen not to opt for fixation under the Amendment Scheme 2000, earlier fixation could have been continued but since the petitioner accepted the arrears as per the Amendment Scheme 2000 which provides for revised pay scale and allowances excluding Special Allowance, therefore, after accepting benefit, the petitioner cannot challenge the scheme. According to the respondent, since the schedule 6th which was in force earlier giving benefit of the Special Allowance has been replaced by 7th schedule of Amendment Scheme 2000 and since 7th schedule contains no provision for Special Allowance, therefore, the petitioner is not entitled for Special Allowance. For the purpose of pension and gratuity and encashment of earned leave etc. it is submitted that in all such cases where the allowances have been revised, only the pre-revised portion of the allowance will rank for pension, gratuity and encashment of earned leave etc. For administrative instructions issued on 3.7.2000, it is stated that administrative instructions run in consonance with the Amendment Scheme 2000.
5. The petitioner submitted detailed rejoinder to the reply of the respondent in which the petitioner denied the allegation of suppression of facts and plea of acquiescence raised by the respondent and reiterated what the petitioner has said in the writ petition and supplemented further grounds in support of his pleas taken in the writ petition.
6. I considered the rival submissions of the learned counsel for the parties and perused the record. The principal disputes between the petitioner and the respondents are that, what is the effect of amendment dated 22.6.2000 with reference to certain benefits which are claimed by the petitioner and denied by the respondents. Whether the 7th schedule inserted in the Scheme of 1974 by amendment dated 22.6.2000 replaced the 6th schedule of the Scheme of 1974 which was in existence prior to coming into force of 7th schedule. Whether the benefits which were available to the employees like Special Allowance has been taken away by introduction of the amendment of 22.6.2000 and whether the administrative instructions dated 3.7.2000 runs contrary to the amendment of 22.6.2000 and cannot be given effect to.
7. According to the learned counsel for the petitioner, right accrued to the petitioner by virtue of coming into force of provision for grant of Special Allowance by Notification dated 27.8.1998. The Notification dated 22.6.2000 nowhere withdraws the benefit of Special Allowance which was granted by the Notification dated 27.8.1998. It is also submitted that a bare reading of Notification dated 22.6.2000, it is clear that by this Notification the 6th schedule has not been replaced but has been modified only. Learned counsel for the petitioner referred various clauses contained in the Notification dated 22.6.2000 whereas the learned counsel for the respondents submits that by scheme dated 22.6.2000 amendments have been made and the pay scales have been revised and this revision has been done after taking into account the various allowances which stand merged in the revised pay scale and the allowances which are given in the 7th schedule only remained applicable to the employees which is clear from the reading of 7th schedule. In 7th schedule, various allowances like functional allowance, other functional allowance, dearness allowance, allowance for technical qualification, graduation allowance, house rent allowance, city compensatory allowance with fixed personal allowance and many other allowances have been kept. The amount of the cycle allowance has been raised but the Special Allowance which was available in schedule 6th has not been kept in 7th schedule, therefore, the petitioner has no right to claim the personal allowance or the benefit on the basis of his claim of enhanced gratuity.
8. Objection with respect to the conduct of the petitioner on the ground that he has accepted the benefit of revised pay scale under the amendment of 22.6.2000 and the Union of India has not been impleaded as party in the writ petition appears to have been raised on assumption that the petitioner is challenging the Amendment Scheme 2000 where as petitioner has not challenged the Amendment Scheme 2000 and in fact he is asserting that he is entitled for the benefit under the Amendment Scheme 2000 in addition to the benefit of Special Allowance under the schedule 6th has not been replaced by the schedule 7th by Amendment Scheme 2000. The petitioner has not suppressed any material fact in the writ petition nor acceptance of the benefit, which accrued to the petitioner by the amendment dated 22.6.2000, deprives the petitioner from saying that he is entitled to the both benefits.
9. The contention of the learned counsel for the respondents that 6th schedule has been replaced by 7th schedule appears to be not correct in view of the Sub-clause (ix) of Clause (3) of the Notification dated 22.6.2000 which is as under :-
"(ix) after the Sixth Schedule, the following Seventh Schedule shall be inserted, namely:-"
10. Further, in view of the clear language of the Sub-clause (ix) of Clause (3) of Notification dated 22.6.2000 it is beyond doubt that 6th schedule has not been replaced by the 7th schedule of the Notification dated 22.6.2000. The opening para of the Notification dated 22.6.2000 is also relevant which also specifically say, it is scheme to further amend, Scheme of 1974. Opening para of the Amendment Scheme 2000 is as under:-
"S.O. 589(E)- In exercise of the power conferred by Section 17A of the General Insurance Business (Nationalisation) Act, 1972 (57 of 1972), the Central Government hereby makes the following scheme, to further amend the General Insurance (Rationalisation) and revision of pay scale and other conditions of service of supervisory, clerical and subordinate staff) Scheme, 1974 (hereinafter referred to as 'the said scheme', namely :-...."
11. By various clauses in the Notification dated 22.6.2000, various modifications and amendments have been made in the service conditions. Even by Clause (3) of the Notification dated 22.6.2000, certain amendments have been made in the Sixth Schedule which can be made only when Notification dated 22.6.2000 does not repeal or replace the Sixth Schedule and by Sub-clause (ix) of Clause (3) nothing left for saying that Sixth Schedule has been replaced by Seventh Schedule. Therefore, any benefit which was available to the petitioner under the provision of Sixth Schedule and has not been taken away specifically by the Notification dated 22.6.2000, cannot be denied on the ground of merely coming into force of Amendment Scheme 2000. Learned counsel for the petitioner rightly relied upon the judgment of the Supreme Court in the case of A.B. Krishna and Ors. v. State of Karnataka and Ors. (1), wherein it has been held that earlier rules cannot be held to have been superseded by latter rules by implication which was further reiterated in a case of Chandra Prakash Tiwari and Ors. v. Sakuntla Sukla and Ors. (2). But here in this case, there arises no question of implied, repeal or replacement of Sixth Schedule rather Notification dated 22.6.2000 itself expressly saved the Sixth Schedule by saying in Sub-clause (ix) of Clause (3) of the Notification that Seventh Schedule shall be inserted after Sixth Schedule. Therefore, the Amendment Scheme 2000, only amended the existing Scheme of 1974 as amended earlier by issuing various amendment notifications time to time (about 30 times as mentioned in Explanatory Note Annex. 5 at page 50 of writ petition), and has not replaced the Sixth Schedule by Seventh Schedule of the Amendment Scheme 2000. (12). The benefits which are not taken away or withdrawn specifically by the amendment of 22.6.2000, cannot be taken away by implication then whether by administrative instructions dated 3.7.2000 (Ex.7), the respondents can deny the special allowance ? It appears from the reading of administrative instructions dated 3.7.2000, it purports to have been issued to implement the provisions of the Amendment Scheme 2000 which is apparent from the subject given instructions itself which is as under :-
"
Re: Administrative Instructions of implementation of provisions of General Insurance (Rationalisation & Revision Pay Scales and Other Conditions of Service of Supervisory, Clerical and Subordinate Staff) Amendment Scheme, 2000.
13. Therefore, from the Instructions dated 3.7.2000 itself it is clear that these administrative instructions have been issued to implement the Amendment Scheme 2000 only and not to amend and alter any of the provisions of the scheme and which could not have been done by mere administrative instructions and therefore, respondents also in reply to the writ petition have rightly not taken a stand that by Instruction of 3.7.2000 respondents intend to amend the Amendment Scheme 2000.
(14). Now the question comes for consideration is that whether Administrative Instructions dated 3.7.2000 are in consonance of the Amendment Scheme 2000 or it misinterpreted the Amendment Scheme 2000. Admittedly the communication dated 3.7.2000 is administration instruction, still it contains Clause 9.1, the part of which is objected by the petitioner in this administrative instruction is as under :-
"It may be noted that while building the revised scales of pay, the Special Allowance which was payable with effect from 1,7.1996 as per Amendment Scheme, 1998 dated 27.8.1998, was taken into account. With the revised scales coming into effect from 1.8.1997, the said Special Allowance shall cease to be payable from 1.8.1997 or the date of fixation in the revised scale of pay, if it be later."
15. By this the Amendment Scheme of 2000 sought to be interpreted by holding that in revising the pay scale, the Special Allowance which was payable with effect from 1.7.1996 as per amendment scheme of 1998 dated 27.8.1998 has also been taken into account, therefore, the said special allowance shall cease to be payable from 1.8.1997 or the date of fixation of the employee in revised pay scale. But it is clear from the Amendment of 2000 that, the Special Allowance has been merged into new pay scale is not mentioned in the Scheme of 2000. Amendment Scheme 2000 nowhere say that after amendment of 2000 all allowances or the Special Allowance which were payable under Sixth Schedule stands withdrawn. Contention of the respondents that Seventh Schedule has replaced the Sixth Schedule has not been found correct as held above. By para 3 of the Amendment Scheme 2000, certain clauses of the Sixth Schedule have been amended but para (xii) of Sixth Schedule which provides grant of Special Allowance, neither has been amended nor withdrawn. No new provision of Special Allowance has been made in Seventh Schedule to suggest intention to withdraw Special Allowance granted by Notification dt. 27.8.1998. Despite contest on this very point the respondents did not place on record any document on the basis of which it can be found out that in fact the Special Allowance has been merged in the revised pay scale. The Amendment Scheme of 2000 contains no clause saying so. Therefore, there appears to be no basis for interpreting the Amendment Scheme of 2000 in the manner in which it has been interpreted by administrative instructions dated 3.7.2000 and there is no force in the plea of the respondents that the administrative instructions are in consonance to the Amendment Scheme 2000 while interpreting the matter relating to Special Allowances.
16. In addition to above even, for the sake of argument if it is accepted that benefit of Special Allowance stands withdrawn even then question arises is, whether benefit which was given to the petitioner by Notification Dt. 27.8.1998 stand withdrawn retrospectively by Amendment Scheme 2000? And whether the respondents can recover the amount of Special Allowance paid to the petitioner before coming in to force of the Amendment Scheme 2000. It will be relevant to look into facts again. The benefit of Special Allowance was given by Notification dt. 27.8.1998. Petitioner was paid Special Allowance by the respondents in the month of September 1998. After this the Amendment Scheme 2000 came in force in the year 2000. Sub-para (2) of the para 1 of the Amendment Scheme 2000 made the Scheme of 2000 effective from 1st August 1997. There is no provision in the Scheme of 2000 providing of repayment or recovery of the Special Allowance paid to the employees which was paid to the employees before coming into force of the Scheme of the 2000 nor it has been provided in the Scheme of 2000 that in case an employee will opt for pay scale in Scheme of 2000, he will have to return the benefit of Special Allowance which he has already received under provisions of Sixth Schedule.
17. Learned counsel for the non-petitioners relies upon para 10 and 11 of the Amendment Scheme 2000 in support of his plea that after coming into force of the Scheme of 2000 the employees are not entitled to Special Allowance because of it has been taken in account while revising pay scale. Para (10) and (11) inserted by Scheme of 2000 are as under :-
"(10) With effect from 1st day of August 1997, the pay and allowances of every employee shall be in accordance with the modified terms. The Basic Salary of every employee in service as on that date and of every employee appointed after that date but before the date of publication of this scheme in the Official Gazette shall be in accordance with the modified scales of pay as per the provisions of paragraph 6E."
"(11) Every employee whose Basic Salary is fixed in the modified scales of pay in accordance with the provisions of paragraph 6E of this Scheme shall be paid, from the date of fixation in the modified scale of pay, for the period commencing from the 1st day of August, 1997 or the date of his appointment, or the date from which he opts to be governed by the provisions of this scheme, whichever is later, the difference of Basic Salary. Personal Pay, if any, dearness allowance and other allowances (after deducting the employee's compulsory contribution to the Provident Fund), between the "modified terms" and the "altered terms" applicable to him:
Provided that :-
(i) In the case of an employee who had retired from service after the '1st day of August 1997 shall be paid the difference in amount, as specified in sub-paragraph (11), for the period up to the date of his retirement along with the difference in amount of gratuity, if any, arising out of this scheme.
(ii) .....
The Proviso added after sub-para (10) & (11) quoted above says that the employee who had retired from service after 1st August 1997 shall be paid the difference in amount, as specified in sub-para (11) (Basic Salary) for a period up to his retirement. The sub-para (11) deals with only Basic Salary and with allowances or Special allowance. In these provisions also provision to pay difference amount of Basic Salary to the retired employees has been made but this revision of Basic Salary has not been made subject to refund of benefit of Special allowance by the employee. Withdrawal of benefit and refund of amount paid to the employee cannot be by implication. It is required to be made specifically. Therefore, the benefit of Special Allowance already granted and paid to the petitioner neither stand withdrawn nor petitioner is required to surrender the benefit of Special Allowance for getting the benefit of revised pay scale as per the Amendment Scheme 2000.
(18). In addition to above, it is clear from the judgment of the Supreme Court namely, Chairman, Railway Board and Ors. v. C.R. Rangadhamaiah and Ors. (3), and the judgment of this Court in the case of Mahaveer Singh v. State of Raj. (4), Smt. Gyan Gehlot v. The Speaker, Rajasthan Legislative Assembly and Ors. (4), that the benefit of revision of pay once granted cannot be withdrawn. In the case of Chairman, Railway Board (supra) Hon'ble Supreme Court held that pension as admissible under the Rules in force at the time of retirement if reduced retrospectively, it is unreasonable and arbitrary and reduction is not permissible. Therefore, the benefits which accrued to the petitioner by Notification dated 27.8.1998 and in compliance of which arrears have been paid to the petitioner that too, by reducing the conveyance allowance from Rs. 100/- to Rs. 50/-, cannot be taken away by the respondents. It is also clear from the Note appended to the Notification dated 27.8.1998 that the Union of India made it clear that by retrospective operation of this amendment, none of the employee will have any adverse effect, therefore, also once the allowance has been granted under the Notification of 1998 and it has not been specifically withdrawn then the respondent cannot deny the benefit of Notification of 1998. Grievance of the petitioner with respect to the re-calculation of gratuity amount payable is concerned I do not find any force because how gratuity amount is to be calculated is clearly provided in Amendment Scheme 2000.
(19). Therefore, the writ petition of the petitioner deserves to be partly allowed and hence allowed and it is held that Sixth Schedule General Insurance (Rationalisation and Revision of Pay Scales and other conditions of Service of Supervisory, clerical and subordinate Staff) Scheme, 1974 has not been repealed or replaced by the Seventh Schedule by Amendment Scheme 2000. The special allowance payable to the petitioner is pursuance to the Notification dated 27.8.1998 has not been withdrawn by the Amendment Scheme 2000. Therefore, the petitioner is entitled to the benefit arising out of the Notification dated 27.8.1998 regarding Special Allowance and leave encashment even after coming into force of Amendment Scheme of 2000 and consequential benefits. The petitioner is entitled to the benefit of the gratuity amount as per the Clause (10) of the amendment scheme; 2000 and if any amount has been recovered from the petitioner by adjusting or otherwise from the amount of petitioner by the respondents or any amount has not been paid to the petitioner for which the petitioner is held entitle for by this judgment, the same be paid to the petitioner within a period of two months from the date of judgment. No order as to costs.
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