2013(3) ALL MR 54
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(PANAJI BENCH)

S.C. DHARMADHIKARI AND U.V. BAKRE, JJ.

Prabhakar H. Parab Vs. Union Of India & Ors.

Writ Petition No.749 of 2010

7th May, 2012

Petitioner Counsel: Mr. Prabhakar H. Parab
Respondent Counsel: Mr. J. Vaz,Mr. A.D. Bhobe

Railways Claims Tribunal Act (1987), Ss.9, 30(2)(b) - Railway Claims Tribunal (Salaries, Allowances and Conditions of Service of Chairman, Vice-chairman and Members) Rules (1989), R.16 - Pension of a Retired Judicial Member of Railway Claims Tribunal - RCT Rules silent on the subject of pension and gratuity - Claim of petitioner that by virtue of residual provision contained in R.16, pension would be payable to him as per Central Civil Service (Pension) Rules - Claim not tenable, specially in view of clarification issued by Ministry of Railway that Members of Tribunal are not entitled to same - Moreover, petitioner cannot claim parity with Central Govt. Employees.

AIR 1967 SC 1331 Disting. [Para 29,30,31,34]

Cases Cited:
V.S.Mallimath Vs. Union of India and another, (2001) 4 SCC 31 [Para 26]
K.N.Shukla Vs. Navnit Lal Bhatt, AIR 1967 SC 1331 [Para 27]


JUDGMENT

S.C. Dharmadhikari, J. :- By this Writ Petition under Article 226 of the Constitution of India, the Petitioner prays that the Notification dated 12.11.2009 issued by the Respondent No.2 be declared as ultra vires and violative of Articles 14, 16 and 300A of the Constitution of India and Sections 9 and 30(2)(b) of the Railway Claims Tribunal Act, 1987 (for short hereinafter referred to as "RCT Act, 1987") r/w Rule 16 of the Railway Claims Tribunal (Salaries and Allowances and conditions of services of Chairman, Vice-Chairman and Members) Rules, 1989 (for short hereinafter referred to as "RCT Rules, 1989").

2. Since the Petitioner is a senior citizen and claiming pension, that we took this Writ Petition for peremptory hearing.

3. The Petitioner retired as Judicial Member of the Railway Claims Tribunal (for short hereinafter referred to as "said Tribunal"). He retired on 07.05.2008 after his completion of term. At the time of his retirement he was posted at Kolkata Bench of the Tribunal.

4. It is stated that the Railway Claims Tribunal was set up under the RCT Act, 1987 with its Principal Bench at New Delhi. The said Tribunal has benches in the capitals of the states where there is railway network. Goa has a railway network. The Railway Board who looks after the administration of Indian Railways is also the Nodal Agency for the said Tribunal. The Railway Board is constituted under the Railway Board Act, 1905 and exercises powers conferred only under Section 2 of the Railways Board Act, 1905. No power appears to have been conferred to the Railway Board by the Union Government under the RCT Act, 1987. The Railway Board Act, 1905 has been extended to Goa under Regulation 12 of 1962 and the RCT Act, 1987 extends to whole of India. The said Tribunal is headed by a Chairman who is a High Court Judge. For each Bench there are two members one Judicial and the other Technical. There are also posts of Vice Chairman at Mumbai, Kolkata and Chennai where the Vice Chairman presides over the Bench and at other Benches Judicial Member presides and is the administrative head. The Chairman, Vice Chairman and Members are appointed under Section 5 of the RCT Act, 1987.

5. It is stated by the Petitioner that the Chairman, Vice Chairman and Members are appointed under the RCT Act, 1987 and are governed by the Railway Claims Tribunal (Procedure for Investigation of misbehaviour or Incapacity of the Chairman, Vice Chairman and Members) Rules, 1991 and are not governed by Articles 309, 310 and 311 of the Constitution of India or the Rules framed thereunder. Their service conditions are governed by separate rules. Sections 9 and 30(2)(b) of the RCT Act, 1987 provide for making Rules relating to salaries, allowances and other conditions of service including pension, gratuity and other retirement benefits.

6. It is stated that the Central Government has framed the RCT Rules, 1989 but the Rules framed only enumerate the allowances and service conditions without specifying the quantum and method of calculation of monetary benefits. It has been left to be determined as per the Rules as applicable to the Government servants of equivalent rank under the Central Government Rules. For example Rule 4 of the RCT Rules, 1989 provides that the Chairman, Vice Chairman and Members shall receive dearness allowance and city compensatory allowance appropriate to their pay at the same rates as admissible to a Group "A" Officer in the same scale of pay under the Central Government drawing an equivalent pay. A similar provision has been made in respect of Tour and Transfer allowance, leave travel concession, HRA, conveyance, medical treatment, etc.. Most importantly it has been specifically provided in Rule 16 that any condition of service of the Chairman, Vice Chairman and Members for which no express provision has been made in these Rules shall be determined by the Rules and orders for the time being applicable to a Secretary to the Government of India in the case of the Chairman and Vice Chairman and by the Rules and orders applicable to Additional Secretary to the Government of India in the case of Members. It is stated that the salaries, allowances, pension, gratuity and other service conditions of the Members of the said Tribunal are the same as applicable to the Additional Secretary to the Government of India. This has been specifically provided in Rule 16 of the RCT Rules, 1989. It is stated that except for eligibility of pension, vacation, leave and conduct rules wherein specific provisions are made in the RCT Rules, 1989, other conditions of service are as applicable to the Secretary/ Additional Secretary to the Government of India.

7. It is stated that the salaries, allowances and other service conditions of the Additional Secretary to the Government of India are fixed according to the recommendations of Pay Commissions. Salary of the Petitioner at the time of his joining the said Tribunal was fixed on a basic scale of Rs.22400-26000 same as then drawn by the Additional Secretary to the Government of India. This scale was fixed as per the recommendations of the 5th Pay Commission. The recommendations of the 6th Pay Commission were accepted by the Government of India and pay and pension have been revised with effect from 01.01.2006. The Petitioner at the time of his retirement on 07.05.2008 was drawing a basic pay of Rs.25,800/- and as per the recommendations of the 6th Pay Commission, his salary was fixed at fixed basic pay of Rs.80,000/- ( scale as applicable to the Secretary to the Government of India). As per the recommendations of the 6th Pay Commission, arrears of salary from 01.01.2006 to 07.05.2008 were paid to the Petitioner in two installments of 40% for the year 2008-09 and 60% for the year 2009-10.

8. It is stated that the 6th Pay Commission made drastic changes in fixation of pension payable to the Central Government employees effective from 01.01.2006. Before the recommendations of the 6th Pay Commission, pension of the Government employees was depending on the following four factors:-

(a) Eligibility;

(b) Basic pay;

(c) Number of years of service; and

(d) Quantum linked to 33 years.

The 6th Pay Commission not only increased the basic pay of the Government servants, but also increased the pension drastically. The most important decision, according to the Petitioner, taken by the 6th Pay Commission regarding pension was to delink pension to 33 years of service as had been done earlier. Consequently, number of years of service (prorata) became irrelevant once the Government servant was eligible for pension. The factors (c) and (d) have been done away with and once a Government servant was eligible for pension, his pension is now required to be fixed on the basis of 50% of his average pay of last ten months without reference to 33 years of service. This recommendation of the 6th Pay Commission was accepted by the Government and the Government issued directions to the departments to carry out the recommendations. Annexure-A to the petition is the said Government Memorandum dated 10.12.2009.

9. It is stated that the Petitioner's pension was marginally increased, but is not as recommended by the 6th Pay Commission. It is stated that with great difficulty the Petitioner managed to get the notification issued by the Nodal Agency, Railway Board increasing the pensions of the Vice Chairman and Members after the pensions of the Secretary and Additional Secretaries to the Government of India have been increased. It is stated that in defiance of the Government Memorandum dated 10.12.2009, the Nodal Agency, Railway Board issued a notification fixing the pension on prorata basis linking pension to 33 years of service. It is the case of the Petitioner that the linkage of pension to 33 years in the impugned notification is clear from the following calculation:-

Maximum pension notified is Rs.4,80,000/- p. a., when divided by 33 gives a figure of Rs.14,545/- per annum which the Nodal Agency has notified as Rs.14,532/- per year.

It is, therefore, alleged that this notification which is impugned in this petition is issued in clear violation of the recommendations of the 6th Pay Commission and is ultra vires the Government of India O.M. Dated 10.12.2009. The Nodal Agency ought to have issued notification in accordance of parity of service conditions as applicable to the Secretary/ Additional Secretary to the Government of India as had been done for more than two decades in terms of provision of Rule 16 of the RCT Rules, 1989. It is the case of the Petitioner that the impugned notification issued by the Nodal Agency is not only ultra vires the Government of India O.M. Dated 10.12.2009, but also violates the equality of service conditions between the Members of the said Tribunal and the Secretary/ Additional Secretary to the Government of India affecting the equality contemplated under Rule 16 of the RCT Rules, 1989. This also violates Articles 14 and 16 of the Constitution of India and is, therefore, liable to be struck down as unconstitutional. The Petitioner's right to property under Article 300A of the Constitution of India is also affected.

10. It is stated that the factors, number of years of service and linkage to 33 years have become redundant after acceptance of recommendations of the 6th Pay Commission. Even otherwise there is no source to link the service of the Members of the said Tribunal to 33 years. Once the Secretary/ Additional Secretary is eligible for pension, as recommended by the 6th Pay Commission, the pension of the Petitioner is also required to be fixed as recommended by the 6th Pay Commission at 50% of the average emoluments for the last ten months drawn at the time of his retirement without linkage to 33 years of service. The same formula ought to have been followed by the Nodal Agency in issuing the impugned notification to maintain parity envisaged under the Rules. It is the case of the Petitioner that the Nodal Agency has followed the recommendations of the 6th Pay Commission as far as the salary of the Member is concerned and the Petitioner has been paid the arrears from 01.01.2006 after fixing the revised basic pay of Rs.80,000/-. The Petitioner was drawing Rs.25,800/- as basic pay at the time of his retirement. The Nodal Agency cannot accept some part of recommendations of the 6th Pay Commission and reject other part. There is direct link between Pay and Pension and the Pension is extension of salary. There is no dispute that the revision of pension of the Members is based on the recommendations of the Pay Commission as clear from the explanatory memorandum appended to the impugned notification. The explanatory memorandum reads as under:-

"With a view to implement recommendations of Sixth Pay Commission regarding Government Employees' pension the Central Government has decided to revise the pension of the Chairman, V. Chairman and Members with effect from 1st Jan. 2006."

11. It is, thus, contended that since service conditions of the Members have been linked to and have been kept at par with the Additional Secretary to the Government of India under Rule 16 of the RCT Rules, 1989, to maintain the equality the Nodal Agency ought to have issued notification in consonance with the Government of India O.M. Dated 10.12.2009. It is stated that the impugned notification also violates Section 9 of the RCT Act, 1987 which provides that neither the salary and allowances nor the other terms and conditions of service of the Chairman, Vice Chairman or other Members shall be varied to his disadvantage after his appointment and since the quantum of pension now available to the Members is not kept at par with pension applicable to the Additional Secretary to the Government of India his service condition has been varied to his disadvantage in violation of Section 9 of the RCT Act, 1987.

12. It is contended by the Petitioner that the Petitioner wrote a letter on 15.04.2010 to the Chairman of the Nodal Agency, Railway Board and the Chairman of the said Tribunal pointing out illegality in the impugned notification. Another letter dated 13.05.2010 was also addressed informing them to direct the pension disbursing officer of Eastern Railway, Kolkata through which the Petitioner gets his pension, to pay the pension as recommended by the 6th Pay Commission and accepted by the Government. It was clearly, according to the Petitioner, pointed out that as per the Memorandum of the Government of India the revised pension is required to be paid as specified in the said Memorandum without referring the matter to the Pension Department. It is alleged that no response is received from the Nodal Agency nor from the Chairman of the said Tribunal indicating the tacit acceptance of mistake on the part of the Nodal Agency in issuing the impugned notification.

13. The Petitioner then contended that the Petitioner is also entitled to gratuity on his retirement. He claims gratuity relying on Sections 9 and 30(2)(b) of the RCT Act, 1987. His claim is that the Additional Secretary to the Government of India is entitled to gratuity under the Central Civil Services (Pension) Rules and on the same lines, the Petitioner is entitled to gratuity as applicable to the Additional Secretary. The Petitioner claims that under Rules 49 and 50 of the Central Civil Services (Pension) Rules, the Additional Secretary to the Government of India is entitled to gratuity on completion of 5 years of service. The Petitioner is also entitled for gratuity for 5 years. For the purpose of gratuity, what the Petitioner claims is that he is not paid gratuity though entitled under the RCT Act, 1987 and Rules, 1989. It is contended that under Rules 49 and 50 of the Central Civil Services (Pension) Rules, the Deputy Secretary to the Government of India is entitled to service and retirement gratuity and by residual provision under Rule 16 of the RCT Rules, 1989, the same rule is applicable to the Judicial Members. Thus, the Petitioner claims that as per the recommendations of the 6th Pay Commission and on the basis of the revised pay as applicable to the Government servant of equivalent rank, the Petitioner is also entitled to monthly pension at 50% of the basic pay drawn for the last ten months of his retirement w.e.f. 08.05.2008. Direction be, therefore, given to the Respondents to pay revised pension as per the recommendations of the 6th Pay Commission from 08.05.2008. Lastly, the Petitioner claims family pension by invoking Rule 54 of the Central Civil Services (Pension) Rules and by urging that by virtue of Rule 16 of the RCT Rules, 1989, the Central Civil Services (Pension) Rules can be invoked in this case. It is stated that the column in respect of family pension has been kept blank in his Pension Book deliberately by the Respondents. Therefore, the direction be issued to amend the Pension Book to enable him to get family pension. For all these reasons, he submits that this Writ Petition be allowed and the reliefs as prayed be granted.

14. There is an affidavit in reply filed on behalf of the Respondent No.1. Mr.Prabir Kumar Dey working as Deputy Chief Personnel Officer (Electrical), Eastern Railway, Kolkata has filed this affidavit in reply. It is urged therein that the Petitioner was appointed as a Member (Judicial) of the said Tribunal at Bhubaneshwar and thereafter, transferred to the said Tribunal at Kolkata from where he retired. The pension of the Petitioner has been settled by the said Tribunal, Kolkata Bench and the Chief Personnel Officer, Eastern Railway, Kolkata has sanctioned his pension. It is stated that the Petitioner took voluntary retirement from the post of the Deputy Legal Adviser in the Department of Legal Affairs, Ministry of Law and Justice. The Petitioner was initially appointed as Member (Judicial) in the said Tribunal at Bhubaneshwar vide Railway Board's order dated 24.04.2003. The Petitioner was, thereafter, transferred to the said Tribunal at Kolkata. It is submitted that the Petitioner has basically challenged the computation of pension on the ground that in terms of the recommendations of the 6th Pay Commission, prorata pension on 33 years of service has been done away with and has invited the attention of the Respondents to the recommendations. The Government of India issued an Office Memorandum dated 10.12.2009 to implement the recommendations of the 6th Pay Commission w.e.f. 01.01.2006. It is alleged by the Petitioner that the Nodal Agency, namely, Railway Board in defiance of this Office Memorandum dated 10.12.2009 issued the notification fixing pension of the Members linking it to 33 years of service. It is contended that this allegation of the Petitioner is not tenable as the Office Memorandum dated 10.12.2009 is relevant for only those Railway servants who are governed by the Railway Services (Pension) Rules, 1993 and retired from Railway service on or after 01.01.2006. The Petitioner cannot claim any parity because paragraph 3 of his appointment letter states that the salaries and allowances payable to the Petitioner as Member in the said Tribunal and the conditions of service by which he will be governed, will be in accordance with the provisions of the RCT Rules, 1989 as amended from time to time. It is stated that the salaries and allowances and other terms and conditions of service of the Chairman, Vice Chairman and Members of the said Tribunal are governed by Section 9 of the RCT Act, 1987 and the Central Government is empowered to make rules by notification to carry out the provisions of this Act. In this behalf, reliance is placed on Section 30 and 30A of the RCT Act, 1987.

15. It is stated that as per Sections 9 and 30 of the RCT Act, 1987, the Central Government has made provisions regarding salaries, allowances and conditions of service of the Chairman, Vice Chairman and Members of the said Tribunal. Rule 8 of the RCT Rules, 1989 provides for calculation of pension of the Chairman, Vice Chairman and Members of the said Tribunal. In these circumstances in exercise of powers conferred by sub-section (1) r/w clause 9(b) of sub-section (2) of Sections 30 and 30A of the RCT Act, 1987, the Ministry of Railways (Railway Board) has issued the notification dated 12.11.2009 and made rules to amend the RCT Rules, 1989. It is, therefore, submitted that the Petitioner has accepted the terms and conditions of his appointment. His terms and conditions are, therefore, governed by the rules as referred to above and he cannot challenge them.

16. It is stated that previously calculation of pension was made as per Rule 8 of the RCT Rules, 1989 which were notified on 19.09.1989. After recommendations of the 6th Pay Commission, they were amended vide notification dated 12.11.2009 by the Railway Board wherein calculation of pension is stated to be payable is at the rate of Rs.14,532/- per annum for each completed year of service subject to the condition that the aggregate amount of pension payable under this rule, together with the amount of any pension including commuted portion of pension, if any, drawn or entitled to be drawn while holding office in the said Tribunal shall not exceed Rs.4,80,000/- per annum. Section 9 of the RCT Act, 1987 specifically states that the salaries and allowances payable to and the terms and conditions of service (including pension, gratuity and other retirement benefits) of the Chairman, Vice Chairman and other Members shall be such as may be prescribed. However, neither the salary and allowances nor the other terms and conditions of service of the Chairman, Vice Chairman or other Members shall be varied to his disadvantage after his appointment. In the instant case, the Petitioner's pension has not been varied to his disadvantage after appointment and as such, the Petitioner has no case on merits and hence, the petition deserves to be dismissed.

17. Consistent with this stand, each of the averments and statements in the Writ Petition have been dealt with and denied. Reference is made to the pay and allowances of the Petitioner while in service. It is stated that the Petitioner cannot claim parity with other Railway employees or Central Government employees because the Members of the said Tribunal are appointed under separate enactment. Even their salaries and monthly pension is in terms of the Rules framed under that enactment, namely, RCT Act, 1987. It is, therefore, submitted that any Office Memorandum in relation to the Central Government officers/ employees will not be applicable to the case of the Petitioner.

18. It is on the above material that we have heard the Petitioner appearing in person and Mr.Vaz, learned counsel appearing for the Respondent Nos.1, 2 and 3. With their assistance, we have perused the Petition and all annexures thereto. Equally, we have also perused the affidavit in reply and all annexures thereto. For the purpose of the present Writ Petition, one will have to proceed on the basis of the undisputed and admitted factual position that the Petitioner is a retired Member (Judicial) of the said Tribunal and he retired on 07.05.2008 after completion of his term fixed under the RCT Act, 1987.

19. The Petitioner does not dispute that the said Tribunal was set up under the RCT Act, 1987. After referring to composition, constitution and functioning of the said Tribunal, what the Petitioner claims is that the appointment of the Chairman, Vice-Chairman and Members is under the RCT Act, 1987 and their service conditions are governed by the separate rules. (see paragraph 3 of the petition).

20. Yet, the Petitioner's argument is that the rules framed under the RCT Act, 1987, namely, RCT Rules, 1989 only enumerate the allowances and service conditions without specifying the quantum and method of calculation of monetary benefits. That is left to be determined in terms of the Rules applicable to the Government servant of equivalent rank under the Central Government Rules. The Petitioner gives several instances in paragraph 4 of the petition, but at the same time, on his own, he makes a reference to Rule 16 of the RCT Rules, 1989 in relation to salary, allowances, pension, gratuity etc.. However, he draws parallel by urging that the conditions of service the Members of the said Tribunal are same as applicable to the Additional Secretary to the Government of India. The Petitioner then refers to the recommendations of the 6th Pay Commission and revision of the pay and pension w.e.f. 01.01.2006 in terms of the recommendations of this commission. The Petitioner does not dispute that at the time of his retirement, he was drawing basic pay of Rs.25,800/-. However, in terms of the recommendations of the 6th Pay Commission, his salary was fixed at basic pay of Rs.80,000/-. The Petitioner refers to the 6th Pay Commission's recommendations in great detail, but complains that his pension was marginally increased and it was not as per the recommendations of this commission.

21. It is in these circumstances the Petitioner states that the Railway Board notification fixing the pension on prorata basis linking it to 33 years of service, is violative of Articles 14 and 16 of the Constitution of India and therefore, unconstitutional. He derives support from the pay commission's recommendations and states that once the Secretary/ Additional Secretary to the Government of India who is eligible for pension without linkage to 33 years of service, but at 50% of the average emoluments drawn at the time of his retirement, then, same norms ought to have been followed by the Railway Board in cases as that of the Petitioner.

22. It is not possible to accept this contention of the Petitioner for obvious reasons. Mr.Vaz rightly places reliance on annexures to the Writ Petition and the order of appointment of the Petitioner dated 24.04.2003. Clause-3 of this appointment order reads as under:-

"3. The salaries and allowances payable to Shri P.H. Parab as Member (Judicial) in the Railway Claims Tribunal and the conditions of service by which he will be governed will be in accordance with the provisions of Railway Claims Tribunal (Salaries and allowances and conditions of service of Chairman, Vice Chairman and Members) Rules, 1980 as amended from time to time."

23. A bare perusal of the same would indicate that the Petitioner cannot claim any parity because he retired voluntarily from the Government services and particularly as Deputy Legal Adviser. That Legal Department of the Government of India relieved the Petitioner on 10.04.2003 and the Petitioner, thus, came to be appointed against an existing vacancy as Member (Judicial) of the said Tribunal at Bhubaneshwar. His tenure was for a period of five years from the date on which assumes charge or until he attains 62 years of age whichever is earlier. Clause-3 of the appointment order makes all the provisions of the RCT Rules, 1989 as amended from time to time applicable as governing rules for salaries and allowances payable to the Petitioner.

24. Mr.Parab (Petitioner), in all fairness, hands over a copy of the RCT Act, 1987, as also, a copy of the RCT Rules, 1989. The Petitioner places strong reliance on Section 9 of the RCT Act, 1987, but that section itself uses the words "as may be prescribed". The word "prescribed" means prescribed by rules. It is in these circumstances that the salaries and allowances payable to and the terms and conditions of service (including pension, gratuity and other retirement benefits) of the Chairman, Vice Chairman and other Members are governed by the Rules. The term "Member" is defined in Section 2(f) and includes the Chairman or Vice Chairman of the said Tribunal. By virtue of Section 30 of the RCT Act, 1987, the Central Government has been empowered to make rules for all or any of the matters enumerated in Section 30(2) and particularly regarding the salaries and allowances payable to and other terms and conditions of service including pension, gratuity and other retirement benefits of the Chairman, Vice Chairman and other Members under Section 9. It is in terms of these powers that the RCT Rules, 1989 have been made. By Rule 3 the pay is determined whereas by Rule 4 the dearness allowance and city compensatory allowance is made admissible. By Rule 5(2), it is stated that subject to the provisions of Rule 3, the Chairman, Vice Chairman or member shall be entitled to receive pension and gratuity in accordance with the retirement rules applicable to him prior to his retirement. That is with the proviso thereto. Rule 6 speaks of leave and Rule 7 provides for leave sanctioning authority. Rule 8 deals with pension and reads thus:-

"8. Pension:-

(1) Every person appointed to the Tribunal as Chairman, Vice-Chairman or Member shall be entitled to pension:

Provided that no such pension shall be payable to such person:-

(i) if he has put in less than two years of service; or

(ii) if he has been removed from an office in the Tribunal under sub-section (2) of Sec.8 of the Act. (2) Pension under sub-rule

(2) shall be calculated at the rate of rupees one thousand four hundred and fifty per annum for each completed year of service subject to the condition that the aggregate amount of pension payable under these rules together with the amount of any pension including commuted portion of pension, if any, drawn or entitled to be drawn, while holding office in the Tribunal shall not exceed rupees four thousand per mensem."

25. Sub-rule (2) of Rule 8 has been substituted by G.S.R. 185(E) dated 11.04.1996 w.e.f. 12.04.1996. Thus, pension is admissible to the Petitioner in terms of the Rules and that are Rules which are applicable to him prior to his retirement. He cannot, therefore, contend that any other Rules and particularly those applicable to the Government servants of equivalent category should be applied to him for the purpose of calculation and computation of pension and other retirement benefits. The Petitioner is not right in contending that there are other Rules in relation to the Government officers which are applied to and are made applicable to the Members of the said Tribunal. Moreover, careful perusal of the RCT Rules, 1989 would reveal that they deal with most of the aspects, namely, provident fund, journeys on tour/transfer, leave travel, accommodation, facility of conveyance, facilities for medical treatment, etc.. Rule 16 on which heavy reliance is placed reads as under:-

"16. Residual provision:Any condition of service of the Chairman, Vice-Chairman or Member for which no express provision has been made in these rules shall be determined by the rules and orders for the time being applicable to a Secretary to the Government of India in the case of the Chairman and Vice-Chairman, and by the rules and orders applicable to Additional Secretary to the Government of India in the case of Members."

26. A bare perusal of the same would indicate that any condition of service for which no express provision has been made in the RCT Rules, 1989 shall be determined by the rules and orders for the time being applicable to a Secretary to the Government of India in case of the Chairman and Vice-Chairman and by the rules and orders applicable to the Additional Secretary to the Government of India in case of the Members of the said Tribunal. However, if there is any express provision in the Rules, then, that would govern the case of the a Member and he cannot derive any assistance from the rules and orders applicable to the Additional Secretary to the Government of India, is the plain meaning of that residual rule or provision. That does not, in any manner, carry the Petitioner's case further. Mr.Vaz is justified in placing reliance upon the judgment of the Hon'ble Supreme Court in the case of V.S.Mallimath v/s Union of India and another reported in (2001) 4 SCC 31. In this decision by referring to identical factual situation, it is held as under:-

"This petition under Article 32 is by the retired Chief Justice of High Court of Kerala. The grievance of the petitioner is that he has been illegally denied of certain monetary benefit when he served as a Member of the National Human Rights Commission. It is the case of the petitioner that after retiring as the Chief Justice of the Kerala High Court on 11.6.1991, he was appointed as Chairman of the Central Administrative Tribunal on 5.12.1991. On his retirement from the Tribunal he was appointed as a Member of the National Human Rights Commission on 14.9.1994 and continued there till he attained the age of 70 years. While he was continuing as a Member of the National Human Rights Commission he was not granted full salary, which he was entitled to under the relevant Rules, and on the other hand deductions were made under the Proviso to Rule 3 of the Rules. The contention of the petitioner is that the said Proviso will have no application. The further grievance of the petitioner is that on his retirement from the Commission he was entitled to retiral benefit of gratuity for the period he rendered service as a Member of the National Human Rights Commission, but even that was illegally denied. The third grievance of the petitioner is that the leave which he earned as a Member of the Human Rights Commission was not allowed to be encashed on an erroneous interpretation of the Rules and thereby he was illegally denied of his rights. The Union of India in the Ministry of Home Affairs rejected all the claims of the petitioner on the ground that the relevant Rules do not permit the claims of the petitioner.

2. ....

3. ... Though the conditions of Service Rules has no provision for payment of gratuity, but under Rule 10, the conditions of service of the Chairperson and Members for which no express provision is made in the Rules has to be determined by Rules and Orders for the time being applicable to the Secretary to the Government of India belonging to the Indian Administrative Services. By the aforesaid provision the All India Services (Death-cum-Retirement Benefit) Rules, 1958 applies also to the Members of the Commission in respect of matters for which there is no provision in the Conditions of Service Rules. Under the All India Service Rules, though it has been provided for payment of gratuity for the services rendered, but it has also been stated that no gratuity would be payable on reemployment, as provided under the Central Civil Services (Fixation of Pay of Re-employed Pensioners) Order, 1986. The stand of the petitioner is that the appointment as a Member in the National Human Rights Commission cannot be termed as reemployment, and therefore, he would be entitled to the gratuity for the period of service rendered by him as a Member, Human Rights Commission. Thus Rule 10 and the relevant provision of All India Services (Death-cum-Retirement Benefit) Rules, 1958, as well as the Central Civil Services (Fixation of Pay of Re-employed Pensioners) Order, 1986, crop up for interpretation........

4. ......

5. Coming to the question whether a Member of the Human Rights Commission, is entitled to gratuity for the period he serves the Commission, it appears that there has been no such provision in the Rules, entitling a Member to claim gratuity. Rule 10 of the Rules, however stipulates that the conditions of service of the Chairperson and the Members for which no express provision is made in the Rules, shall be determined by the rules and orders applicable to a Secretary to the Government of India belonging to Indian Administrative Service. So far as the service conditions of a Secretary to the Government of India belonging to the Indian Administrative Service is concerned, the same is governed by a set of Rules framed under Section 3(1) of the All India Services Act, 1951 called the All India Services (Death-cum-Retirement Benefits) Rules, 1958. Under the aforesaid Rules, retirement gratuity is granted to a Member of the Service, who retires or is required to retire under Rule 16, as provided in Rule 17 of the Rules. The amount of gratuity is computed under Rule 18. The enabling provisions contained in Rules 16, 17 and 18 do not provide for payment of gratuity for a re-employed person. The President of India, however in supersession of all the earlier orders in relation to fixation of pay of re-employed pensioners, promulgated an Order called the Central Civil Services (Fixation of Pay of Re-employed Pensioners) Order, 1986. The aforesaid order applies to all the persons who are re-employed in Civil Services and posts in connection with the affairs of the Union Government, after retirement on getting pension, gratuity and/or Contributory Provident Fund benefits. Rule 14 of the aforesaid orders, stipulates that re-employed officers shall not be eligible for any gratuity/death/retirement gratuity, for the period of reemployment, except in those cases covered in Rules 18 and 19 of the Central Civil Services (Pension) Rules, 1972. The petitioners case is not covered under the aforesaid provisions of the Central Civil Services (Pension) Rules, 1972. Therefore, the question for consideration is whether the appointment of the petitioner as a Member of the Human Rights Commission would tantamount to re-employment. In the absence of any definition of the expression re-employment and applying the common parlance theory, the conclusion is irresistible that the said appointment would tantamount to "re-employment" and, therefore, for such period of service as Member of the Human Rights Commission, no gratuity would be payable."

27. The Petitioner's reliance on a decision of the Honourable Supreme Court in the case of K.N.Shukla v/s Navnit Lal Bhatt reported in AIR 1967 SC 1331, is entirely misplaced. There the question was of granting sanction for criminal proceedings initiated against a Railway Officer. Thus, in that context it was held by the Supreme Court that the Railway Board is a separate body which derives its powers and authority, however, wide they may be only because of delegation of powers from the Central Government in respect of the administration of the Railways. There the Appellant was appointed in an officiating position as Class I Officer by the Railway Board and therefore, he was removable by the Railway Board and not by the Central Government. Therefore, it cannot be said that the Appellant was one of those public officers who could be removed only by or with the sanction of the Central Government within the meaning of Section 197 of the Code of Criminal Procedure.

28. The Petitioner possibly thinks that the Central Government is arguing that the Petitioner's services are controlled or governed by the Railway Board and which Railway Board cannot exercise powers in its own stride and therefore, distinct from the Central Government. We are not concerned with any matter of sanction, but we are concerned with the terms and conditions of service including pay, allowances and retirement benefits admissible to the Petitioner who worked as Member (Judicial) of the said Tribunal. Once a distinct rule has been enacted for him and that this aspect has been clarified by the Ministry of Railways (Railway Board) by its clarification dated 26.07.1994, then, this judgment cannot be of any assistance to the Petitioner. This clarification, copy of which is at page 84 of the petition, reads as under:-

"Please refer to your letter No.RCT/DLI/NCs/Pension dt.14.9.93 on the above subject. The matter has been examined in consultation with the Department of Pension and Pensioners' Welfare, who have opined that retiring Members of RCT would not be entitle to payment of gratuity, family pension or commutation of pension for the service rendered in the RCT. As the Members of RCT appointed after retirement from the Central or State Government and they have already drawn their pensionary benefits, their family members would continue to be governed by that family pension scheme of the Centre or State from which they previously retired.

As for dearness relief on pensions, they are governed by the rules as applicable to the Central Government employees. However, under these rules, dearness relief on pension earned in the Central or State Government and on the pension earned in the Tribunal, should not exceed the maximum dearness relief admissible on both the pensions clubbed together.

Pensionary benefits of the retiring Chairman, Vice-Chairman & Members of RCT should be settled keeping in view the above guidelines."

29. We are in agreement with Mr.Vaz that the Petitioner cannot place his case on par with the Additional Secretary to the Government of India. Once the Petitioner's case is governed by the RCT Rules, 1989, then, he cannot claim any parity or draw any parallel from the services rendered by the Secretary or Additional Secretary to the Government of India. Once the above conclusion is reached, then, as far as the matters of pension and gratuity are concerned, the Petitioner's case would be covered by the RCT Rules, 1989.

30. It is not the complaint of the Petitioner that gratuity is payable under the RCT Rules, 1989, but the case of the Petitioner is that the RCT Rules, 1989 do not speak of gratuity and by virtue of residual provision contained in Rule16, gratuity would be payable to the Member (Judicial) under Rules 49 and 50 of the Central Civil Services (Pension) Rules. In other words, wherever the RCT Rules, 1989 are silent, gratuity and other benefits can be claimed under the Central Civil Services (Pension) Rules.

31. However, what has been clarified by the Government of India, Ministry of Railways is that the Chairman, Vice-Chairman and Members of the said Tribunal are strictly governed by the RCT Rules, 1989. Since there is no provision of gratuity in these Rules, they are not entitled to the same. The Petitioner has not challenged the circular dated 17.08.1992 at Annexure-B to the affidavit in reply filed by Mr.Prabir Kumar Dey. In our view, residual provision must be read in such a manner as would harmonize the RCT Rules, 1989. Rules must be read as whole and together harmoniously. If Rule-16 is read together with other Rules, it would be apparent that the Petitioner cannot base his case merely because the RCT Rules, 1989 are silent on some aspects. If he is entitled to receive pension and gratuity in accordance with the retirement rules applicable to him prior to his retirement and if there is no provision in the Rules with regard to gratuity, then, he cannot claim the same by relying on residual provision. However, the Petitioner places heavy reliance upon the silence in these rules with regard to gratuity. In that behalf what the affidavit of the Respondent No.1 states is that the RCT Rules, 1989 are distinct from the Railway Services (Pension) Rules, 1993. The RCT Rules, 1989 are based on corresponding provisions contained in the Central Administrative Tribunal (Salaries and Allowances and conditions of service of the Chairman, Vice Chairman and Members) Rules, 1985 which have been framed by the Department of Personnel and Training, Government of India. In these circumstances and when the Railway Board has issued a circular, validity of which has not been challenged and has been rather accepted by the Petitioner, then, we cannot direct payment of gratuity to the Petitioner contrary to the terms of this circular by relying on residual Rule 16 of the RCT Rules, 1989. Additionally, we are bound by the law laid down by the Hon'ble Supreme Court in V.S.Mallimath's case (supra). What we find from the record is that the challenge is to the Notification dated 12th November, 2009. That it is ultra vires the O.M. dated 10th December, 2009 is the submission. The O.M. is subsequent in point of time and pertinently it is applicable to Central Government Employees. That this class is not comparable to the Petitioner is clear from the above referred material. Hence, the challenge has no legal basis and is thus, untenable.

32. Equally, with regard to the family pension, what has been clarified by the Respondents is that Rule 54 of the Central Civil Services (Pension) Rules has been invoked to claim family pension. That family pension has not been given to the Petitioner and he claims amendment to the Pension Book to get family pension. We are of the opinion that as far as this aspect is concerned, the Respondents may examine the request of the Petitioner, if made by him, to amend the Pension Book to the extent of making any provision for family pension and issue necessary orders in accordance with law within a period of eight weeks from the date of receipt of the request.

33. Equally, we are of the opinion that if there is any further modification or change in the policy or rules with regard to payment of gratuity, even that aspect could be examined by the Respondents and they may consider the request of the Petitioner, if made, and communicate their decision with regard to gratuity amount claimed by the Petitioner as expeditiously as possible and within the time stipulated above.

34. However, finding that the Petitioner cannot be granted pension on par with the Additional Secretary to the Government of India because of the express rules that have been applied to his case and applicability of which has never been disputed by him, then, we have no alternative but to proceed and reject the Writ Petition to that extent by denying the reliefs in terms of prayer clauses (a), (b), (c) and (e). As far as the relief in terms of prayer clause (d) is concerned, our directions issued hereinabove would sufficiently protect the claim of the Petitioner with regard to family pension.

35. In the result, Rule discharged, but without any order as to costs.

Petition partly allowed.