JUDGMENT M.Y. Eqbal, J.
1. The petitioner representing the retired employees of Central Coalfields Limited prayed for issuance of a writ of mandamus commanding upon the respondents to fix up their pension on the basis of recommendation made by Fifth Central Pay Commission w.e.f. 1.1.1996 and also to pay revised pension and arrears of pension from the aforesaid date.
2. The petitioner's case is that the members of the petitioners association were initially appointed in the Steel and Mines Ministry, Government of India. Later on their services were under the Coal Production Development Commissioner. In 1965 the Government of India, Ministry of Steel and Mines took a decision with the agreement of the National Coal Development Corporation all employees like members of the petitioners association shall be deemed to be the employees of the Corporation w.e.f. 1.10.1956 on the same tenure, same remuneration and same terms. It is contended that in 1972 the National Coal Development Corporation issues a circular clarifying the amendment in the matter of pensionary benefit in respect of liberalized pension rules and family pension schemes. The petitioners case is that since several employees were contributing NCDC provident fund and they were reverted back by the pension benefits under civil rules. Some employees who were employees as dally rated in the Railway Collieries brought subsequently in the monthly cadre and such employees were contributing CMPF. It was decided that the employees who were governed by the civil rules/railway rules may be allowed pensionary and other benefits. In this context Government of India on 29.7.1977 issued orders for cash payment in lieu of unutilized earned leave from the date of retirement. Their further case is that in 1991 the Central Government vide notification dated 11.10.1991 declared that the dearness relief payable to the Central Government pensionary have been revised. The contention of the petitioner is that the members of the petitioner association are entitled to the benefit of dearness relief which has been stopped since 1991.
3. I have heard Mr. P.K. Sinha, learned Senior Counsel appearing for the petitioner and Mr.A.K. Mehta learned counsel appearing for the respondents and perused the affidavits and the documents enclosed therewith.
4. After hearing the learned counsels and considering the affidavits the only issue raised by the petitioner is whether the retired employees of the petitioner association are entitled to pensionary benefits at par with Central Government employees. It appears that the petitioners earlier moved the Patna High Court by filing CWJC No. 1665 of 1993 (R). In the said writ petition the petitioner claimed enhanced dearness relief as per the direction issued by the Central Government time to time particularly in terms of circular dated 18.4.1992 and 30.9.1992. The learned Single Judge by a reasoned judgment dated 13th September, 1994 held that the members of the petitioner association after accepting and opting for the Wage Board Scale shall not be entitled to the benefits as available to the Central Government employees. Para 32 and 33 of the judgment reads as under.
"It is not disputed that most of the members of the petitioner-Association have opted in favour of Wage Board Scale excepted few. It is submitted on behalf of the petitioners that though option was exercised, the NCDC curtailed some of the benefits availed by the petitioner. The Management was persuaded to extend other benefits and service conditions and Management agreed to extend all benefits brought about by amendment. This contention can hardly be accepted in absence of any material put forward on behalf of the petitioner is support of his contention. It is significant to note that the petitioners have not spoken swoard in their writ petition about the Wage Board recommendation and other material fests mentioned in the counter affidavit filed on behalf of the respondent. It is true that there was mistake in computation of pensionary benefits in the past but as rightly contended by the learned Sr. Counsel appearing for the respondents that now the mistake has been rectified, the members of petitioner Association are entitled to enhanced D.A. in terms of Annexure 7.
The petitioners having accepted the recommendation of the Wage Board are estopped from contending that they are also entitled to reliefs as available to Central Government employees under the amended terms of service."
5. The petitioner then filed Letters Patent Appeal No. 67 of 1994. The said appeal was dismissed by the Division Bench and the judgment of the learned Single Judge was affirmed. Para 9 and 10 of the judgment is worth to be quoted herein-below :
"Such employee who opted for the Industrial Scales of pay, and to whom provision of pension was guaranteed, calculations of their pension would have to be regulated by the principle followed by the Government of India from time to time on Industrial pay pattern, giving them the benefits of enhanced retirement age of sixty years as per the Wage Board agreement. In place of fifty eight years applicable to Central Government employees and as such employees opting for Central pay scale, under Wage Board Award certain benefits such as employment of dependant in case of premature death/total disability etc. were also available. In paragraph 2 of Annexure-A quoted above in clear words, it has emphasized that the employees opting for Wage Board pay scale etc. will not get any future benefit in respect of scale of pay, dearness allowance and other amenities. It is significant that the appellants have complete silence regarding the Wage Board recommendation. There were only 2 central pay revisions during the relevant period, whereas as many as five Wage Board Awards have been implemented and in each revision certain portion of D.A. was merged to propose new pay scale. Besides them, there are few such transferred employees who opted for Central Government pay scale, inspite of higher benefits (even temporarily) under Wage Board Awards and enhanced retirement age at 60 years. In case, the prayer of the appellant is allowed, it would be a great injustice to such transferred employees not opting for Wage Board Award pay scale and other benefits.
NCDC or CIL or its subsidiaries do not have any pensionary scheme for their employees. Nevertheless as per the agreement, the petitioner-appellants have been allowed pension. It is obvious that in computing such pension, the basis would be the pay last drawn (in case of appellants, their pay scale was revised five times after merging the industrial dearness allowance). In such situation, there is no question of bringing parity only in the element of dear-ness relief without there being parity in the pay and method of computation, as the pensionary benefit is a total package. No doubt, through Annexure - 8/A by mistake the appellants were allowed one slab of D.A. but it cannot be capitalized and it has now been rectified. The learned Single Judge has rightly held that the petitioner appellants cannot have best of both worlds and once opting for higher wage-Board scale of pay and benefits of higher retirement age are estopped from claiming dear-ness allowance on pension available to the Central Government employees and non-optees of the Wage Board pay scales,"
6. It is, therefore, clear that the basic issue raised by the petitioners have been decided against them and it has been categorically held that the retired members of the petitioner association are not entitled to the benefit as available to Central Government employees under the amended terms of service. In my opinion, therefore, the relief sought for by the petitioner cannot be granted. As a matter of fact this writ application is barred by the principles of res judicata,
7. For the aforesaid reason there is no merit in this writ petition which is accordingly dismissed.