K.S. KRISHNASWAMY ETC. versus UNION OF INDIA AND ANR.

Citation: [2006] SUPP. 9 S.C.R. 330 · Decided: 23-11-2006 · Supreme Court of India · Bench: H.K. SEMA · Disposal: Disposed off
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Judgment (excerpt)

A 
K.S. KRISHNASWAMY ETC. 
v. 
. UNION OF INDIA ANDANR. 
NOVEMBER 23, 2006 
B 
[H.K. SEMA AND P.K. BALASUBRAMANYAN, JJ.] 
Executive Instructions: 
Office memorandum merely clarifying an earlier office meinorandum-
C Held: Does not over-ride the same. 
D 
Administrative law: 
Policy decision of the Government-Modification of. by Executiie 
Instructions-Held, cannot be challenged on the ground of estoppel. 
Service law: 
Pay scale-Increase in, on Pay Commission recommendation is a 
corresponding increase of pay scale and not of the post. 
E 
Constitution of India, 1950 : 
Article 136-Special leave petition-Dismissal of. by non-speaking 
order-Applicability of doctrine of merger-Held: Not applicable. 
The Union of India considered the recommendations of the 5th Pay 
F Commission and on 30.9.1997 notified a Policy Resolution. In the said Policy 
Resolution, the scope and extent of the application of the 5th Pay Commission 
recommendations accepted by the Government of India was mentioned. The 
implementation and acceptance of 5th Pay Commission was followed by a large 
number of representations from pensioners. The Government of India issued 
G Executive instructions in the O.M. dated 17.12.1998 thereby clarifying the 
import and intent of application of Policy Resolution notified on 30.9.1997. · 
The confusion still persisted and the Government issued further Executive 
Instructions by way ofO.M. dated I 1.5.2001. 
H 
The question which arose for consideration in these appeals is whether 
330 
K.S. KRISHNASWAMY ETC. v. U.O .I. 
331 
the Executive Instruction in the form of O.M. dated 11.5.2001 override the A 
O.M. dated 17.12.1998 and is null and void. The pensioners have preferred 
appeals against the order of Madras High Court while Union of India have 
preferred appeal against the Delhi High Court. 
Dismissing the appeals of pensioners and allowing the appeals of Union 
oflndia, the Court 
B 
HELD: 1. The view taken by the Madras High Court that the clarificatory 
Executive Instructions in O.M. dated 11.5.2001 are an integral part of the 
O.M. dated 17.12.1998 clarifying the Policy Resolution of the Government 
dated 30.9.1997 and do not over-ride the original 0.M. dated 17.12.1998 is C 
correct law and it is, accordingly, affirmed. The view taken by the Delhi High 
Court that O.M. dated 11.5.2001 over-rides the original 0.M. dated 17.12.1998 
and creates two classes of pensioners does not lay down the correct law and 
is, hereby, set aside. l339-G-H] 
2. O.M. dated 17.12.1998 speaks of the minimum pay in the revised scale D 
of pay w.e.f. 1.1.1996 of the post last held by the pensioner. The O.M. dated 
11.5.2001 clarifies it as minimum of the corresponding scale as on 1.1.1996 
of the scale of pay held by the pensioner at the time of superannuation/ 
retirement. The clarification brought about in the O.M. dated 11.5.2001 is of 
the last post held by the pensioner as the last scale of pay held by the pensioner E 
at the time of superannuation/ retirement. (336-E-F] 
3. It is well-settled principle of law that recommendations of the Pay 
Commission are subject to the acceptance/rejection with modifications of the 
appropriate Government. It is also well settled principle of law that a policy 
decision of the Government can be reviewed/altered/modified by Executive F 
Instructions. It is in these circumstances that a policy decision cannot be 
challenged on the ground of estoppel. In the present case, the recommendations 
of the 5th Pay Commission were accepted by a Policy Resolution dated 
30.9.1997 that the ceiling on the amount of pension will be 50% of the 
highest pay in the Government. The pension of all pre 1.1.96 retirees 
including pre-86 retirees shall be consolidated as on 1.1.1996, but the G 
consolidated pension shall not be brought on to the level of 50% of the 
minimum of the revised pay of the post held by the pensioner at the time of 
retirement. The subsequent O.M. dated 17.12.1998 clarified the Policy 
Resolution dated 30.9.1997 by Executive Instructions in O.M. dated 
17.12.1998 and further clarified in the form ofO.M. dated 11.5.2001 clarifying H 
the contents of Policy Resolution of the Government dated 30.9.1997. They 
332 
SUPREME COURT REPORTS (2006] SUPP. 9 S.C.R. 
A are both complementary to each other. Both clarify the Governme.nt Policy' 
Resolution dated 30:9.1997. The appellants are not aggrieved by the Executive 
Instructions in 0.M. dated 17.12.1998. Therefore, the contention of the 
ap
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