AND IN THE NAME OF THE GOVERNOR
OF ANDHRA PRADESH)
Joint Secretary to Government
In order to appreciate the challenge to the said Notification, it is necessary to reproduce the relevant provisions of Section 115 of the States Reorganization Act, 1956, namely, Sub-sections (2), (3), (4) and (7) thereof. These Sub-sections are as follows :
(2) Every person who immediately before the appointed day is serving in connection with the affairs of an existing State part of whose territories is transferred to another State by the provisions of Part II shall as from that day, provisionally continue to serve in connection with the affairs of the principal successor State to that existing State, unless he is required by general or special order of the Central Government to serve provisionally in connection with the affairs of any other successor State
(3) As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person referred to in Sub-section (2) shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect.
(4) Every person who is finally allotted under the provisions of Sub-section (3) to a successor State shall, if he is not already serving therein be made available for serving in that successor State from such date as may be agreed upon between the Governments concerned, and in default of such agreement, as may be determined by the Central Government.
(7) Nothing in this section shall be deemed to effect after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State :
Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in Sub-section (1) or Sub-section (2) shall not be varied to his disadvantage except with the previous approval of the Central Government.
Under Clause (m) of Section 2 of the States Reorganization Act, 1956, 'principal successor State' in relation to the State of Hyderabad means the State of Andhra Pradesh. Chapter I of Part XIV of the Constitution of India deals with services under the Union and the States and consists of Articles 308 to 313.
20. What is pertinent for our purpose is that under the proviso to Sub-section (7) of Section 115 of the States Reorganization Act, the conditions of service applicable immediately before the appointed day, namely, November 1, 1956, in the case of any person referred to inter alia in Sub-section (2) of Section 115 cannot be varied to his disadvantage except with the previous approval of the Central Government. Pension is a condition of service as held by this Court in State of Madhya Pradesh and Ors. v. Shardual Singh : 3SCR302 and therefore, if any rules are to be made by the Governor of a State varying the amount of pension to the disadvantage of those who were in service on the appointed day, such rules would not be valid without the previous approval of the Central Government. The amendment made by the said Notification reduced the amount of pension payable to Government servants who were in the service of the erstwhile State of Hyderabad and whose services continued under the principal successor State to the State of Hyderabad, namely, the State of Andhra Pradesh. The contention of the Respondent, however, is that such approval has, in fact, been given by the Central Government by the said letter date April 28, 1973. This contention found favour with the Division Bench of the Andhra Pradesh High Court. The said letter dated April 28, 1973, was in reply to a letter dated, March 13, 1973, written by the Joint Secretary to the Government of Andhra Pradesh, Finance Department. In the said letter dated March 13, 1973, after referring to the Demonetization Act and the Rules it was stated that there was an omission to convert the maximum limit of pension of O.S. Rs. 1,000 into I.G. Currency but in practice, however, the figure was treated as O.S. Rs. 1,000 and all pensions sanctioned before November 1, 1956, were restricted to Rs. 857.15 being the equivalent in I.G. Currency of O.S. Rs. 1,000. Incidentally, there is nothing on the : record to bear out this statement. The issue of the said erratum and the judgment of the Andhra Pradesh High Court striking it down were then recited in the said letter. It was then stated that the Government, held the view that as no one was paid more than Rs. 857.15 in I.G. Currency prior to November 1, 1956, the condition of service that the maximum pension admissible should be Rs. 1,000 in I.G. Currency did not exist and that it came into being only by virtue of the judgment delivered by the Andhra Pradesh High Court in 1970, that is, in the said writ petition filed by Daulat Rai and two others, and that it was, therefore, felt by the State Government that what it had done 1 was not a variation in the conditions of service of any employee to his disadvantage but an action taken to give effect to an actual situation that existed prior to November 1, 1956. The said letter then went on to state :
It, therefore, does not appear necessary to obtain previous approval of Government of India for this amendment under the proviso to Section 115 of the S.R. Act, 1956. Should however Government of India consider it otherwise they may kindly accord approval for the amendment as explained earlier.
Along with the papers forwarded with the said letter was a copy the said Notification dated February 3, 1971. By his reply dated April 28, 1973, to the said letter, the Joint Secretary to the Government of India, Cabinet Secretariat, Department of Personnel and A.R., stated as follows :
I am directed to refer to the correspondence resting with Shri P.R. Kale's letter No. 14154/- A/462/Pen. 1/72, dated March 13, 1973 on the above subject and to say that the Government of India agrees with the view of the State Government that since no retired employee was paid a pension of more than Rs. 857.15 in Indian currency before 1.11.1956, the proposed amendment in the Hyderabad Civil Service Rules is not a variation in the conditions of service of any employee to his disadvantage after 1.11.1956 and does not require prior approval of the Government of India under Section 115 of the States Reorganization Act, 1956.
21. The Division Bench of the Andhra Pradesh High Court took the view that 'when all the facts relating to the pension admissible to an employee governed by the Hyderabad Civil Services Rules were placed before the Government of India and when it gave a considered opinion, that opinion is a prior approval satisfying the requirement of Section 115(7)'. We are unable to follow this line of reasoning. By the said letter dated March 13, 1975, the Government of India was requested to accord approval to the said amendment if it considered it necessary so to do. By its said reply dated April 28, 1973, the Government of India categorically stated that the said amendment did not require its prior approval under the said Section 115 and, therefore, did not give any approval to the said amendment. To equate the not giving of approval with a prior approval satisfying the requirements of the proviso to Sub-section (7) of Section 115 appears to us to be a contradiction in terms as also to say that a letter written on April 2, 1973, was a prior approval given to an amendment which was made (sic) than two years earlier on February 3, 1971. The statement made in the said letter dated March 13, 1973, that by the said amendment the conditions of service were not being varied was incorrect because by the said amendment the maximum pension of Rs. 1,000 per month in I.G. Currency was being reduced to the equivalent in that currency of O.S. Rs. 1,000 per month, namely, to Rs. 857.15 per month, and that too with retrospective effect from the date of the coming into force of the Rules, namely, October 1, 1954. For such an amendment the previous approval of the Central Government was required by the proviso to Sub-section (7) of Section 115. Such approval was not given and the amendment made by the said Notification was, therefore, invalid and 1 inoperative so far as it concerned persons referred to in Sub-section 1) and (2) of Section 115 of the States Reorganization Act. The question whether even with respect to persons other than those referred to in the said Sub-sections, the said Notification in so far as it is retrospective is valid does not arise in these Appeals and does not fall to be decided.
22. In this view of the matter it is unnecessary to consider the other points arising in these Appeals except the Respondent's contention that the Appellant in each of these two Appeals had waived his right to receive pension on the basis that the maximum pension admissible under Clause (b) of the Rule 299(1) is Rs. 1,000 and was, therefore, estopped from claiming pension on that basis. There is no substance in this contention. This point was never taken in the High Court. Further, apart from the fact that there cannot be any waiver of the right to receive pension payable under the rules made in that behalf, there is no factual basis whatever for this contention. The Appellant Ahmed Hussain Khan retired on April 5, 1972. By the said Government Order dated June 22, 1973, his pension was in fact fixed on the basis that the maximum pension admissible under Rule 299(1)(b) was Rs. 1,000 per month in I.G. Currency. This order was revised by the order dated July 2, 1973, by which his pension was fixed on the basis that the maximum pension admissible was Rs. 857.15 per month. Within a short time thereafter in the course of that year he filed his writ petition in the High Court and the said writ petition was heard and disposed of by the learned Single Judge by his judgment delivered on July 16, 1974. So far as the Appellant S. Gopalan is concerned, he retired on April 14, 1973, and his pension was fixed by the Government Order dated May 8, 1973, on the basis that the maximum pension admissible under the Rules was Rs. 157.15 per month. He also filed his writ petition in the same year and it was decided along with the writ petition filed by Ahmed Hussain Khan by the said judgment delivered on July 16, 1974.
23. For the reasons set out above, we hold that the Appellant in each of these two Appeals is entitled to receive pension on the basis that the maximum pension admissible under Clause (b) of Sub-rule (1) of Rule 299 of the Hyderabad Civil Services Rules is Rs. 1,000 per month in Government of India Currency and not Rs. 857.15 per month in that currency.
24. In the result, we allow both these Appeals, reverse the judgment of the Division Bench of the Andhra Pradesh High Court and set aside the orders appealed against. We direct the State of Andhra Pradesh to fix within one month from today the pension payable to the Appellant in each of these two Appeals from the date on which he became eligibly for payment of pension, that from the date on which he retired from. Government service, on the basis that the maximum pension admissible under Clause (b) of Sub-rule (1) of Rule 299 of the Hyderabad Civil Services Rules is Rs. l,000 per month in the Government of India Currency. We further direct the State of Andhra Pradesh to pay the Appellant in each of these two Appeals the balance of the amount of pension payable to him for the past period according to such refixation within one month from the date of refixation of his pension.
25. The Respondent will pay to the Appellant in each of these two Appeals the costs of the Appeal in this Court and of the writ petition and the writ appeal in the Andhra Pradesh High Court.