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    JUDGEMENT BY CAT ERNAKULAM IN PRE-20006 PENSIONERS CASE


                    CENTRAL ADMINISTRATIVE TRIBUNAL
                               ERNAKULAM BENCH

                                  O.A.No.747/11

                     Monday this the 23rd day of January 2012

    C O R A M :

    HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER
    HON'BLE Mr.K.GEORGE JOSEPH, ADMINISTRATIVE MEMBER

    P.K.Bhargavan Pillai,
    S/o.late K.Krishna Pillai,
    Retd. Administrative Officer Grade I,
    Indian Space Research Organisation.
    Residing at Daiveekom, Manjapra PO,
    Ernakulam - 683 581.                                          ...Applicant

    (By Advocate Mr.M.R.Hariraj)

                                    V e r s u s

    1.    Union of India represented by the Secretary
          to Government of India,
          Ministry of Personnel, Public Grievances and Pensions,
          Department of Pension and Pensioners' Welfare,
          Lok Nayak Bhawan, New Delhi - 110 003.

    2.    Pay and Accounts Officer,
          Central Pension Accounting Office,
          Trikoot - 2, Bhikaji Cama Place,
          New Delhi - 110 066.

    3.    The Controller,
          Liquid Propulsion Systems Centre,
          Indian Space Research Organisation,
          Valiamala PO, Thiruvananthapuram - 659 547.

    4.    Manager,
          State Bank of Travancore,
          Angamaly Branch, Kallookaran Towers,
          Angamaly - 683 572.                                 ...Respondents

    (By Advocate Mr.Sunil Jacob Jose,SCGSC [R1-3])

          This application having been heard on 17th January 2012 this
    Tribunal on 23rd January 2012 delivered the following :-

                                   O R D E R

    HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER

          The applicant is a pre 2006 retiree and was earlier afforded pension

    on the basis of order F No.38/27/08-P&PW(A) dated 1.9.2008 vide

    Annexure A-1. As per the said order, pension would in no case be lower

    than 50% of the minimum of the pay in the pay band plus grade pay

    corresponding to the pre-revised pay scale from which the pensioner had

    retired. The applicant, before his superannuation, was drawing his pay in

    the scale of Rs.8,000 - 13,500, the corresponding revised pay being

    Rs.15,600 - 39,100 plus grade pay of Rs 5,400/-. The extent of pension

    he was drawing was Rs.10,500/- (being half of minimum pay of Rs 15,600

    plus half of grade pay of Rs 5,400/-).  Arrears of pension on the basis of

    the above calculation were also released to the applicant.      While so,

    Revised Pension Order dated 27.1.2011 vide Annexure A-2 (one of the

    impugned orders) was issued to the applicant whereby, his pension was

    reduced to Rs 8,277/- w.e.f. 1.1.2006.     This led to issue of revision

    authority dated 9.2.2011, vide Annexure A-3 (impugned herein). Faced

    with such a drastic truncation of his pension, the applicant     moved a

    representation dated 10.6.2011 vide Annexure A-4. In this representation,

    he had stated that the pension under no circumstances shall be less than

    half the minimum in the pay scale and the grade pay attached to the pay

    scale for the post he was holding prior to his superannuation.        The

    applicant thus requested for proper fixation in accordance with paras

    4.1/4.2 of Annexure A-1 order. The respondents, however, continued to

    pay the applicant the reduced pension of Rs.8277/- and in addition

    recovery of Rs.2945/- had also been effected by the 4th respondent, as

    could be seen from Annexure A-5 print out of the pension register. The

    applicant has, therefore, moved this O.A seeking the following reliefs :-


           1.     To declare that the Central Civil Service (Pension)
           Amendment Rules, 2011 is discriminatory, arbitrary and ultra
           vires Article 14 and 16 of the Constitution of India to the
           extend it refuses to apply the liberalized principles of
           computing pension to pensioners who retired before 1.1.2006
           and that it is void to that extend.

           2.     To call for the records leading to issuance of Annexure
           A-2, Annexure A-3, O.M.No.38/37/08-P&PW (A) dated
           2.9.2008 and 10.12.2009 and to quash the same to the extend
           it refuses to apply the liberalized principles of computing
           pension to pensioners who retired before 1.1.2006.

           3.     To direct the respondents to compute the revised
           pension of the applicant at 50% of his emoluments or average
           emoluments, whichever is more beneficial to him, and to draw
           and disburse such revised pension to the applicant with all
           consequential benefits including arrears and arrears of
           pension and pensionary benefits with interest at the rate of
           12% per annum.

           4.     Alternatively, to direct the respondents to pay the
           applicant minimum basic pension of Rs.10500/- which is 50%
           of the minimum of the pay band plus grade pay corresponding
           to the pre-revised pay scale from which the applicant retired.

           5.     To call for the records leading to recovery from pension
           of the applicant and quash the same.

           6.     To direct the respondents to refund the applicant any
           recovery already made from his pension.


    2.     The respondents have contested the O.A. They have contended

    that the Ministry of Personnel, Public Grievances and Pensions had given a

    clarification vide O.M dated 3.10.2008 on fixation of pension/family pension

    of the pre 2006 retirees vide Annexure R-2. According to the same, para

    4.2 of the O.M dated 1.9.2008 has been modified to the extent that the

    pension will be reduced pro-rata, where the pensioner had less than the

    maximum required service for full pension as per rule 49 of the CCS

    (Pension) Rules, 1972 as applicable on 1.1.2006 subject to a ceiling of

    minimum of Rs.3500/- per month.         The Ministry had issued revised

    guidelines vide Annexure R-3 stating that wherever the pension is

    disbursed through public sector banks, the banks will pay and disburse the

    pension and arrears in accordance with the ready reckoner and also the

    additional pension to the old pensioners. A revised concordance table in

    respect of pre 1996, pre 2006 and post 2006 pay scales/pay bands were

    also provided to facilitate payment of revised pension in terms of para 4.2

    of O.M dated 1.9.2008.       The responsibility to revise and disburse the

    enhanced pension and arrears in terms of para 4.2 of the O.M dated

    1.9.2008 was vested with the pension disbursing public sector banks

    concerned. In so far as earlier payment of pension without truncation, the

    respondents have stated that the 4th respondent bank might have

    implemented the instructions contained in the O.M dated 1.9.2008 on its

    own without looking into the subsequent clarifications issued by the

    Department of Pension and Pensioners' Welfare with regard to the revision

    of pension of pre 2006 pensioners. As uniformity had not been maintained

    in calculation or disbursement of pension, the Department of Space vide

    communication dated 31.3.2009 (Annexure R-4) and letter dated 6.1.2010

    (Annexure R-5) requested its constituent centres to have speedy action for

    payment of pension, arrears etc. to pre 2006 retirees by liaising with public

    sector banks concerned. Accordingly, the 3rd respondent worked out the

    revised entitlement to pension of the applicant which came to be Rs.8277/-

    and the same was communicated to the 2nd respondent, namely, Central

    Pension Accounting Office (CPAO), New Delhi, vide Annexure R-6 letter

    dated 27.1.2011.



    3.   The respondents have also stated in para 11 as under :-


         "11. As regards para 4.12 of the O.A., it is submitted that the
         Department of Pension and Pensioners' Welfare had issued a
         revised concordance table of the pre 1996, pre 2006 and post
         2006 pay scales/pay bands along with its OM dated
         14.10.2008    in  order to     facilitate payment of revised
         pension/family pension in terms of para 4.2 of the OM dated
         1.9.2008 (as clarified vide OM dated 3.10.2008) in all cases
         where fixation of pension under that provision is more
         beneficial. Note 1 appended below the said concordance table
         clearly provides that 'the revised pension of those who retired
         after completing maximum required qualifying service (ie.33
         years) before 1.1.2006 cannot be less than the pension
         indicated in column 8 above (ie. 50% of the sum of minimum of
         pay band and grade pay/scale corresponding to the scale of
         pay the pensioners held at the time of their retirement). The
         pension in col.8 above will be reduced pro-rata, where the
         pensioner had less than the maximum required qualifying
         service (ie. 33 years) for full pension as per Rule 49 of the
         CCS (Pension) Rules, 1972 as applicable on 1.1.2006 and in
         no case it will be less than 3500/- p.m. In case, the pension
         consolidated as per para 4.1 of above OM is higher than the
         pension calculated in the manner above, the same (higher
         pension) will be treated as basic pension'.      Obviously, the
         applicant who is a pre 2006 retiree, is ipso facto ineligible for
         revised pension at the rate of 50% of the minimum of the pay
         in the band plus grade pay corresponding to the pre revised
         pay scale from which he retired, since he doesn't have the
         maximum required qualifying service of 33 years for full
         pension as per Rule 49 of CCS (Pension) Rules, 1972. As
         such, the contentions of the applicant that his pension ought
         not be below 50% of the minimum of the pay in pay band plus
         grade pay corresponding to the pre revised pay scale from
         which he retired in view of the fact that the qualifying service
         for full pension had been reduced to 20 years instead of 33
         years and liberalized principles of pension cannot be refused
         to the past pensioners, etc., are not borne out of facts and the
         same may kindly be rejected by this Hon'ble Tribunal.

    4.     The respondents have also reiterated that as per the Memorandum

    issued by the Department of Pension and Pensioners' Welfare, fixation of

    pension and payment of arrears in respect of pre 2006 retirees is a

    responsibility of the pension disbursing authority including public sector

    banks.



    5.     Counsel for the applicant has submitted that the error committed by

    the respondents in reducing the payment of pension has been fully

    appreciated by the Tribunal.      In its full Full Bench judgment dated

    1.11.2011 in O.A.No.0655 of 2010 and connected O.As the Tribunal has

    dealt inextenso the extent of pension admissible to pre 2006 retirees. Para

    2 onwards of the said order of the Full Bench reads as under :-


            "2.    Applicants, who are pre-2006 retirees, are claiming
            pension at par with post-2006 retirees based on the
            recommendations of the VI Central Pay Commission, which
            became effective from 1.1.2006. Considering that the issues
            involved have great ramifications and in the meanwhile Bombay
            Bench and Patna Bench of the Tribunal rendered judgment(s)
            against their cause., the matter was referred to the Full Bench
            vide order dated 29.04.2011. The grievance projected by the
            applicants in these OAs are that the employees, who retired
            prior to 1.1.2006 (specified date) and those who retried
            thereafter form one class of pensioners. The attempt to classify
            them into separate classes/groups for the purpose of
            pensionary benefits was not found on intelligible differentia,
            which has a rationale nexus with the object sought to be
            achieved.   To substantiate this argument reliance has been
            placed on the judgment of the Apex Court in the case of D.S.
            Nakara and others v. Union of India, (1983) 1 SCC 305 and
            Union of India v. S.P.S. Vains, (2008) 9 SCC 125. The further
            grievance raised by the applicants is that their notional pay
            fixation and consequent pension should not be lower than 50%
            of the sum of the minimum of the pay in the pay band and the
            grade pay thereon corresponding to scale of pay from which
            they had retired, as accepted by the Government vide
            resolution dated 29.08.2008 and the clarification issued by the

    respondents    vide impugned       OM     dated    3.10.2008  and
    14.10.2008 contrary to the Resolution dated 29.08.2008 and
    OM dated 1.9.2008 in regard para 4.2, are illegal, arbitrary,
    discriminatory, unreasonable and unjust, as according to the
    applicants in the clarification/modification order dated 3.10.2008
    respondents had added and deleted certain words, which
    completely changed its meaning as per the recommendations
    of the Commission as accepted by the Government. In other
    words, the grievances raised by the applicants are that the
    respondents have not revised pension of the pre-2006 retirees
    even as per the modified parity/formula recommended by the
    Pay Commission and adopted by the Government vide
    resolution dated 29.08.2008. It may be stated that challenge
    has been made only to the aforesaid issues though the
    additional points raised by the applicants in OA-2087/2009 and
    2101/2011 have not been pressed by the learned counsel for
    the applicants.

    3.     In order to decide the aforesaid issue, few relevant facts
    may be noticed.      The Government of India constituted VI
    Central Pay Commission (VI CPC) on 05.10.2006, inter alia, to
    examine the principles which should govern the structure of
    pension, death-cum-retirement gratuity, family pension and
    other terminal or recurring benefits having financial implications
    to the present and former Central Government employees
    appointed before 1.1.2004. The report was submitted by the
    Commission on 24.03.2008.         The Pay Commission made
    separate recommendations for revision of pension of the past
    pensioners and for determination of pension of those retiring
    after implementation of its recommendations.          In regard to
    determination of pension of those retiring after implementation
    of its recommendations, the Commission recommended linkage
    of full pension with 33 years of qualifying service should be
    dispensed with.     Once an employee renders the minimum
    pensionable service of 20 years, pension should be paid at 50%
    of the average emoluments received during the past 10 months
    or the pay last drawn, whichever is more beneficial to the
    retiring employee. Simultaneously, the extant benefit of adding
    years of qualifying service for purposes of computing
    pension/related benefits should be withdrawn as it would no
    longer be relevant. However, regarding revision of pension of
    past pensioners the Commission made recommendations as
    per para 5.1.47 of the report which recommendation of the
    Commissioner was accepted by the Government with certain
    modifications to which we will advert at a later stage. Thus, this
    modified formula formed basis for revision of the pension of the
    pre-2006 retirees, as adopted by resolution dated 29.08.2008,
    which according to applicants has not even been followed by
    the respondents in its true letter and spirit. Since the VI CPC
    has made separate recommendations for pre-2006 retirees and

    post-2006 retirees as such the Government issued two different
    OMs based upon the recommendations of the Central Pay
    Commission, i.e., one regarding revision of pension of past
    pensioners and second regarding post-2006 retirees. It is in the
    light of the aforesaid factual aspects the matter is required to be
    examined."


    After threadbare analysis of the entire issue, the Full Bench had
    arrived at the following decision:-


    "12. Now let us advert to last grievance raised by the
    applicants viz. that even if the modified parity, as recommended
    by the Pay Commission and accepted by the resolution dated
    29.08.2008 is to be taken as criteria for determining pension of
    pre-2006 retirees, still on account of subsequent clarification
    issued to para 4.2 of the OM dated 1.9.2008 by the officers of
    the respondents vide OM dated 3.10.2008 and             14.10.2008
    criteria and principles for determining the pension has been
    given a complete go-bye. Thus, these clarificatory OMs are
    illegal, arbitrary, discriminatory, unreasonable, unjust and are
    required to be quashed and set aside. At this stage, we wish to
    mention that this issue was not raised and considered by the
    Patna and Bombay Benches of the Tribunal, as such no finding
    on this aspect was given. However, in paras 66 and 67 of the
    judgment Patna Bench has given a direction that the
    Government should examine this aspect of S-29 pay scales
    retirees being able to retire at the maximum of the pay band 4
    pay scale with the grade pay of Rs.10,000/- which would bring
    their pension to Rs.38,500/-.        Suffice it to say that the
    observation made by the Patna Bench was given without taking
    into consideration the modified parity as recommended by the
    Pay Commission and accepted by the Central Government vide
    its resolution dated 29.08.2008, which formed the basis to grant
    pension to pre-2006 retirees.


    13.    In order to determine the issue, at this stage, it will be
    useful to quote item No.12 of the Resolution No.38/37/08-
    P&PW (A) dated 29.08.2008 whereby recommendations of the
    VI CPC, as contained in para 5.1.47, was accepted with certain
    modifications and thus reads :-

     S.No.              Recommendation                       Decision of
                                                             Government
             "All past pensioners should be allowed Accepted         with    the
             fitment benefit equal to 40% of the       modification that fixation
             pension excluding the effect of merger    of pension shall be based
             of 50% dearness allowance/dearness        on a multiplication factor
             relief  as   pension    (in  respect    ofof 1.86, i.e basic pension
             pensioners retiring on or after </2004)
             and    dearness    pension    (for  other +    Dearness     Pension
             pensioners) respectively. The increase    (wherever applicable) +
             will be allowed by subsuming the effect   dearness relief of 24% as
             of conversion of 50% of dearness          on 1.1.2006, instead of
             relief/dearness allowance as dearness     1.74
             pension/dearness pay. Consequently,
             dearness relief at the rate of 74% on
             pension     (excluding   the   effect   of
             merger) has been taken for the
             purposes of computing revised pension
             as on 1/1/2006. This is consistent with
             the fitment benefit being allowed in
             case of the existing employees. The
             fixation of pension will be subject to the
             provision that the revised pension, in
             no case, shall be lower than fifty
             percent of the sum of the minimum of
             the pay in the pay band and the grade
             pay thereon corresponding to the pre
             revised pay scale from which the
         12 pensioner had retired. (5.1.47)



    Based on this resolution, respondents issued OM of even
    number dated 1.9.2008. Para-4.2 whereof, which is relevant
    for the purpose, reads as follows :

          "The fixation of pension will be subject to the provision
          that the revised pension, in no case, shall be lower than
          fifty percent of the minimum of the pay in the pay band
          plus the grade pay corresponding to the pre-revised pay
          scale from which the pensioner had retired. In the case of
          HAG+ and above scales, this will be fifty percent of the
          minimum of the revised pay scale."

    14.   On the basis of the recommendations made by VI CPC,
    which stood validly accepted by the Cabinet, it has been
    argued that principle for determining the pension has been
    completely altered under the garb of clarification. According to
    the learned counsel for the applicants on the basis of the
    aforesaid resolution/modified parity revised pension of the pre-
    2006 pensioners shall not be less than 50% of the minimum of
    the pay band + grade pay, corresponding to the pre-revised pay
    scale from which the pensioner had retired.

    15.    Applicants in para-11 of the Additional-Affidavit have
    explained how the Note prepared by a junior functionary (at the
    level of an Under Secretary) in the Department of Pension &
    Pensioners Welfare in regard to para-4.2 of the OM dated
    1.9.2008 has been given a go-by to the resolution dated
    29.08.2008. The Note so prepared has been extracted in this
    para, which thus reads :

           "Whether the pension calculated at 50% of the minimum
           pay in the pay band would be calculated (i) at the
           minimum of the pay in the pay band (irrespective of the
           pre-revised   scale    of  pay)   plus  the   grade   pay
           corresponding to the pre-revised pay scale, or (ii) at the
           minimum of pay pay in the pay band which an employee
           in the pre-revised scale of pay will be getting as per the
           fitment tables at Annex I of the CCS (Revised Pay)
           Rules, 2008 plus the grade pay corresponding to the pre-
           revised pay scales."

    16.    It is pleaded that first the need for such a doubt
    being raised is not clear as both the formulation of the CPC in
    para 5.1.47 as well as in Government Resolution dated
    29.8.2008 (Annexure A-7 of the OA) is clear that "the fixation
    of pension will be subject to the provision that the revised
    pension in no case, shall be lower than fifty percent of the sum
    of the minimum of the pay in the pay band and the
    grade pay thereon corresponding to the pre-revised pay scale
    from which the pensioner had retired." (emphasis added).
    The use of words `sum of', `and' and `thereon' leaves no doubt
    that both the minimum of the pay in the pay band and the grade
    pay have to correspond to the pre-revised pay scale.
    Second, without bringing out merits or demerits of either
    formulation, the lower functionary in DOP & PW incorporates
    in the clarification against item 4.2 in the OM dated 1.9.2008,
    the first option about "minimum of pay in the pay band
    (irrespective of the pre-revised scale of pay)". What is worse
    is that there is no application of mind even at the level of
    Director and Secretary who merely sign the note and the
    clarification is issued after obtaining finance concurrence and
    approval of MOS (PP), without going back to the Cabinet for
    such a modification.

    17.    The learned counsel has further argued that the resultant
    injustice done to the pre-1-1-2006 pensioners had even been
    recognized by MOS (F) and MOS (PP) in their letters to the
    PM and MOS (F) respectively, copies of which are at
    Annexures      A-11 (page 169) and A-12 (page 170) of the OA.
    A formal proposal was also sent by DOP & PW to Department
    of Expenditure seeking rectification but was not accepted

     by the latter.    It was also incorrectly mentioned that the
     earlier provision in para 4.2 of OM dated 1.9.2008 has been
     issued in pursuance of the approval of the Cabinet granted
     to the Report of the Sixth CPC and any change would entail
     substantial financial implications and this was done only
     with the approval of the Secretary (Expenditure) without putting
     up the note to MOS (F) who had himself supported the
     change. A copy of this Note dated 2.1.2009 is enclosed as
     Annexure 5.

     18.   As regards the grievance to OM dated 14.10.2008 based
     on the OM dated 1.9.2008 (as clarified by OM dated 3.10.2008)
     whereby a revised table (Annexure A-1) of the pre-2006
     pensioners pay scale/pay was finalized to facilitate payment of
     the revised pension/family pension, applicants have prepared a
     chart in respect of minimum of the pre-revised scales (modified
     parity) of S 29 along with 5 scales included in PB-4 works out
     as under and thus reads :

     Min of     Pay in the   Grade Pay       Revised      Pension 50%
       Pre      Pay Band                     Basic Pay      of (2+3)
     revised                                   (2+3)          Rs.
      scale                                     Rs.
            1             2             3               4             5
    S-24

    (14300)          37400           8700          46100          23050
    S-25

    (15100           39690           8700          48390          24195
    S-26

    (16400)          39690           8900          48590          24295
    S-27

    (16400)          39690           8900          48590          24295
    S-28
    (14300)          37400          10000          47400          23700
       S-29

    (18400)          44700          10000          54700          27350

           The first 4 columns of the above table have been
     extracted from the pay fixation annexed with MOF OM of 30th
     August 2008 (referred to in para 4.5 (iii) above).     Revised
     pension of S 29 works out to Rs.27350 which has been
     reduced to Rs.23700 as per DOP OM of 3-10-2008 (para 4.8
     (B) below).

    It was explained during arguments that pay in the Pay Band
    indicated in column No.2 above table relates to the pay in the
    revised pay scale corresponding to the minimum pay in the pre-
    revised pay scale.

    19.    On the basis of this chart it has been pleaded that as per
    the impugned OM dated 14.10.2008 in the case of S-24 officers
    the corresponding pay in the Pay Band against 14300/- is
    shown as 37400. In addition, Grade Pay of Rs.8700/- was
    given totaling Rs.46,100/-. Similarly, revisions concerning all
    the other pay scales were accepted by the aforementioned OM
    dated 14th October, 2008.       The illegality which has been
    perpetrated in the present matter is apparent from the fact that
    whereas an officer who was in the pre-revised scale S-24 and
    receiving a pay of Rs.14,300/- would now receive Rs.37,400/-
    plus grade pay of Rs.8700 and his             full pension would
    accordingly be fixed at Rs.23050 (i.e. 50% of 37400 pay plus
    grade pay Rs.8700) pursuant to the implementation of VI CPC
    recommendations after 1.1.2006, whereas a person belonging
    to the Applicant Association, who was drawing a pay of
    Rs.18,400/- or even Rs.22,400/- (maximum of scale) in the pre-
    revised S-29 scale will now be getting pension as only 23700/-
    (i.e. 50% of pay of Rs.37,400/- plus grade pay of Rs.10000).
    However, the misinterpreted revised basic pay of Rs.37400 has
    caused a grave miscarriage of justice since those officers who
    belong to a much higher grade have now been equated with
    those who were working under them in a lower rank/grade. It is
    further relevant to note that those officers belonging to S-29
    who would retired after 1.1.2006 would, however, be placed in
    the revised pay scale differently. For instance, a person who
    was in the pre-revised pay scale of 18000-22400 (S29) at
    Rs.18,400/- would now get Rs.44,700/- in addition to Grade
    Pay of Rs.10,000/- i.e. the revised basic pay of Rs.61,850/-.
    However, a person who retired only one day prior i.e. on 31st
    December 2005, even if he had received pre-revised pay of
    Rs.22400/- would now be placed in the revised pay of
    Rs.37400/- only in addition to the Grade Pay of Rs.10,000.
    Thus the illegality which has been committed in the present
    matter also relates to equating the pre-revised pay scale of
    Rs.18,400-22,400/-     with  the     pre-revised  pay   scale  of
    Rs.14,300-18,300/-.

    20.    In order to buttress the aforesaid submission applicants
    have given specific instance of an officer in para-6 of the
    Additional Affidavit who retired at a higher pay on 31.12.2005
    getting a much higher pension at that time than another officer
    who retired only 5 days later, i.e., on 5.1.2006 at a lower pay.
    After implementing the VI CPC recommendations, as illegally
    modified by the Department of Personnel, the result is that the
    concerned person who retired on 31.12.2005 is getting far

    lower pension than the person who retired 5 days later. A copy
    of the said chart amplifying the above position has also been
    reproduced, which is to the following effect :


        Name          Ashok         K.             R.K. Goel
                      Ghosh
      Department        Railways             Heavy Water Board
    Scale of Pay       18400-500-           18400-500-22400
                       22400
    Date           of 31.12.2005            05.01.2006   i.e.
    Retirement                              only 5 days
    Last      Pay     Rs.22900       (incl.        Rs.21400
    Drawn             one     Stagnation
                      increment)
     Average       10 Rs.34350              Rs.31737.50       or
     months                                 31738
     Emoluments
     incl.  Dearness
     Pay
    Original Pension Rs.17175              Rs.15869
    fixed
    Revised Pension       Rs.2587(i.e.      Rs.29435
    Fixed   after  6th  Rs.22900x2.26)
    CPC                         2
    implementation

    21.   Applicants have also explained as to how the disparity
    has resulted on account of implementation/acceptance of
    VI CPC recommendations by the Government vide resolution
    dated 29.08.2008.      As can be seen from the clarificatory
    order dated 30.08.2008 (Annexure A-6 at pages 139-147)
    regarding pay scale of S-24 to S-29, the pay scales of the
    V CPC of Rs.14300-18300 in respect of S-24 employees,
    the VI CPC has placed them in Pay Band-3 and recommended
    the Pay Band of Rs15,600-39100/- plus Grade Pay of Rs.7600
    per month.     However, the Government has upgraded the
    said S-24 category to Pay Band 4 and placed them in the pay
    Band of Rs.37,400-67,000/- plus Grade Pay of Rs.8700/-
    per month.      It is, therefore, absolutely clear that the
    Government authorities have increased the pay of S-24
    employees by far more than double. Further, it is very relevant
    to note that the said impact would be not only on the retired
    S-24 officers but also on the large base of serving employees.
    Similarly, the same is the position with regard to S-25, S-26
    and S-27 all of whom were recommended by the Sixth
    Pay Commission to be in the pay band of Rs.15,600-39,100/-
    but were placed by the Government in the pay band of
    Rs.37,400-67,000/-. Similarly in the case of employees who

    were placed in S-29 pay scale they were recommended
    Pay Band of Rs.39,200-67000/- plus Grade Pay of Rs.9,000/-
    per month by the VI CPC, whereas the Government has
    revised pay structure to Rs.37,400-67000/- plus Grade Pay of
    Rs.10,000/- per month. This has resulted in the anomaly which
    is essentially to be rectified.

    22.    It is submitted that the applicants are in the category
    of retired employees and are a diminishing category.
    In contrast, the serving employees of S-29 category are being
    given the benefits of the recommendations of the VI CPC.
    Further, as explained earlier, the benefits available in S-24
    to S-27 grade are available not only to retired employees but
    also to the large base of serving employees. The financial
    effect of the same is many-many times that of the small
    additional expenditure which will be incurred on account of the
    benefits sought by the Applicants. Therefore, the argument
    sought to be raised by the Union of India during the course of
    hearing regarding the so-called financial impact has no factual
    basis at all.

    23.    Thus,    according    to the   applicants   the  aforesaid
    disparity, which has been caused on account of granting
    enhanced scales in S-24 to S-27 grade contrary to the
    recommendations of the VI CPC and further reducing the
    scales recommended by the Pay Commission in respect of
    S-29 grade to be at par with the employees who were placed in
    S-24 to S-27 grade is required to be set right. According to the
    learned counsel of applicants even if the cut off date of
    1.1.2006 for revision of the pay scale and grant of pensionary
    benefits on the basis of VI CPC is to be upheld, even then the
    applicants are entitled to relief based upon the Resolution
    dated 29.08.2008 whereby the recommendations of the Pay
    Commission was accepted and on account of disparity, which
    has resulted in granting different pay scales, as recommended
    by the VI CPC, which has caused prejudice to the applicants
    and thus has to be set right.

    24.    The stand taken by the respondents is that the
    recommendations of the VI CPC, as accepted by the
    Government vide Resolution dated 29.08.2008 and further
    clarification issued by the respondents is in consonance with
    the recommendations so accepted. It is stated that there may
    be a slight change in the word used in the clarification issued
    by the Government subsequently but has the same meaning as
    in the latter part of para 5.1.47 of the report of the VI CPC as
    accepted by Government. The phrase "minimum of the pay in
    the Pay Band" has been used and this phrase carries the same
    meaning i.e., the pay from which a pay band starts. It is stated

       that the clarification on OM dated 3.10.2008 was issued
       after due exercise in Department of Pension and Pensioners
       Welfare and Ministry of Finance and with the approval of the
       Hon'ble Minister of State.       It is further stated that VI CPC
       has not made any recommendation for complete parity
       between      the   pre-1996    and     post-1-1-1996   pensioners.
       Therefore, question of allowing complete parity between pre-
       1996 and post 1.1.1996 pensioners would not arise. It is stated
       that the OM dated 1.9.2008 has been further clarified on
       3.10.2008 that pension calculated at 50% of the minimum of
       the pay in the pay band plus grade pay would be calculated at
       the minimum of the pay in the pay band (irrespective of the pre-
       revised sale of pay) plus the grade pay corresponding to the
       pre-revised pay scale.


       25.     In order to decide the matter in controversy, at this stage,
       it will be useful to extract the relevant portions of para 5.1.47 of
       the VI CPC recommendation, as accepted by the Resolution
       dated 29.08.2008, para 4.2 of the OM dated 1.9.2008 and
       subsequent changes made in the garb of clarification dated
       3.10.2008, which thus read :




    Resolution            Para   4.2    of   OM OM DOP&PW OM No.
    No.38/37/8-P&PW DOP&PW OM No. No.38/37/8-P&PW(A)
    (A)            dated No.38/37/8-P&PW          dated 3.10.2008
    29.08.2008-Para       (A) dated 1.09.2008
    5.1.47 (page 154- (page 38 of OA)
    155)

    The fixation as The fixation as per The                 Pension
    per above will be above       will   be Calculated at 50% of
    subject   to   the subject      to   the the    [sum    of   the]
    provision    "that provision "that the minimum of the pay
    the       revised revised pension, in in the pay band [and
    pension,   in   no no case, shall be the          grade      pay
    case,   shall   be  lower than 50% of    thereon
    lower than 50% of   the(sum     of  the) corresponding to the
    the sum of the      minimum of the pay   pre-revised         pay
    minimum of the      in the pay band      scale]    plus    grade
    pay in the pay      plus    (and)    the pay       would      be
    band    and    the  grade pay (thereon)  calculated (i) at the
    grade          pay  corresponding     to minimum of the pay
    thereon             the prerevised pay   in    the   pay   band
    corresponding to    scale from which     (irrespective of the
    the     prerevised  the pensioner had    pre-revised scale of
    pay scale form      retired.             pay plus) the grade
    which          the                       pay     corresponding
    pensioner      had                       to    the  pre-revised
    retired.                                 pay     scale.      For
                                             example,        if    a
                                             pensioner           had
                                             retired in the pre-
                                             revised scale of pay
                                             of    Rs.18400-22400,
                                             the     corresponding
                                             pay     band      being
                                             Rs.37400-67000 and
                                             the     corresponding
                                             grade     pay     being
                                             Rs.10000 p.m., his
                                             minimum guaranteed
                                             pension would be
                                             50%                  of
                                             Rs.37400+Rs.10000
                                             (i.e. Rs.23700)
                       Strike out are        Strike    out    are
                       deletions     and     deletions        and
                       bold        letter    bold          letters
                       addition              addition.

       26.   As can be seen from the relevant portion of the resolution
       dated 29.8.2008 based upon the recommendations made by
       the VI CPC in paragraph 5.1.47, it is clear that the revised
       pension of the pre-2006 retirees should not be less than 50% of
       the sum of the minimum of the pay in the Pay Band and the
       grade pay thereon corresponding to the pre-revised pay scale
       held by the pensioner at the time of retirement. However, as

    per the OM dated 3.10.2008 revised pension at 50% of the sum
    of the minimum of the pay in the pay band and the grade pay
    thereon, corresponding to pre-revised scale from which the
    pensioner had retired has been given a go-by by deleting the
    words "sum of the" "and grade pay thereon corresponding to
    the pre-revised pay scale" and adding "irrespective of the pre-
    revised scale of pay plus" implying that the revised pension is
    to be fixed at 50% of the minimum of the pay, which has
    substantially changed the modified parity/formula adopted by
    the Central Government pursuant to the recommendations
    made by the VI CPC and has thus caused great prejudice to
    the applicants.    According to us, such a course was not
    available to the functionary of the Government in the garb of
    clarification thereby altering the recommendations given by the
    VI CPC, as accepted by the Central Government. According to
    us, deletion of the words "sum of the" "and grade pay thereon
    corresponding to the pre-revised scale" "and addition of the
    words "irrespective of the pre-revised scale of pay plus", as
    introduced by the respondents in the garb of clarification vide
    OM dated 3.10.2008 amounts to carrying out amendment to the
    resolution dated 29.08.2008 based upon para 4.1.47 of the
    recommendations of the VI CPC as also the OM dated
    1.9.2008 issued by the Central Government pursuant to the
    aforesaid resolution, which has been accepted by the Cabinet.
    Thus, such a course was not permissible for the functionary of
    the Government in the garb of clarification, that too, at their own
    level without referring the matter to the Cabinet.

    27.    We also wish to add that the Pay Commissions are
    concerned with the revision of the pre-revised `pay scales' and
    also that in terms of Rule 34 of the CCS (Pension) Rules, 1972
    the pension of retirees has to be fixed on the basis of the
    average emoluments drawn by them at the time of retirement.
    Thus, the pre-revised scale from which a person has retired
    and the emoluments which he was drawing at the time
    immediately     preceding    his   retirement  are    a    relevant
    consideration for the purpose of computing revised pension and
    cannot be ignored. As such, it was not permissible for the
    respondents to ignore the pre-revised scale of pay for the
    purpose of computing revised pension as per the modified
    parity in the garb of issuing the clarifications, thereby altering
    the modified parity/formula, which was accepted by the Central
    Government vide its resolution dated 29.08.2008.

    28.    The above view is also fortified by paras 137.15, 137.20
    and 137.21 of the V CPC recommendations, as reproduced
    below, leading to modified parity, which were also accepted by
    the VI CPC and accepted by the Central Government and thus
    read:

    "Immediate relief to pensioners

    137.15       While the work relating to revision of pension of pre
    1.1.1986 retires by notional fixation of their pay shall have to be
    undertaken by the pension sanctioning authorities to be
    completed in a time-bound manner, we suggest that the
    pensioners should be provided some relief immediately on
    implementation of our recommendations.              The pension
    disbursing authorities may be authorized to consolidate the
    pension by adding (a) basic pension; (b) personal pension,
    wherever admissible; (c) dearness relief as on 1.1.1996 on
    basic pension only; (d) Interim Relief (I and II) and (e) 20% of
    basic pension. The consolidated pension shall be not less than
    50% of the minimum pay, as revised by the Fifth CPC, of the
    post held by the pensioner at the time of retirement. This may
    be stepped up by the pension disbursing authorities, wherever
    feasible, to the level of 50% of the minimum pay of the post
    held by the pensioner at the time of retirement. (emphasis
    supplied)

    xxx   xxx    xxx   xxx   xxx

    Modified parity conceded

    137.20       We have given our careful consideration to the
    suggestions. While we do not find any merit in the suggestion
    to revise the pension of past retirees with reference to
    maximum pay of the post held at the time of retirement, as
    revised by the Fifth CPC, there is force in the argument that the
    revised pension should be not less than that admissible on the
    minimum pay of the post held by the retiree at the time of
    retirement, as revised by the Fifth CPC. We have no hesitation
    in conceding the argument advanced by pensioners that they
    should receive a pension at least based on the minimum pay of
    the post as revised by Fifth Pay Commission in the same way
    as an employee normally gets the minimum revised pay of the
    post he holds. We recommend acceptance of this principle,
    which is based on reasonable considerations.             (emphasis
    supplied).

    Principle enunciated

    137.21       The Commission has decided to enunciate a
    principle for the future revision of pensions to the effect that
    complete parity should normally be conceded up to the date of
    last pay revision and modified parity (with pension equated at
    least to the minimum of the revised pay scale) be accepted at
    the time of each fresh pay revision.       This guiding principle
    which we have accepted would assure that past pensioners will
    obtain complete parity between the pre-'86 and post-'86

    pensioners but there will be only a modified parity between the
    pre-'96 and post-'96 pensioners.       The enunciation of the
    principle would imply that at the time of the next pay revision
    say, in the year 2006, complete parity should be given to past
    pensioners as between pre-1996 and post-1996 and modified
    parity be given between the pre-2006 and post-2006
    pensioners." (emphasis supplied)

    29.    From the above extracted portion it is clear that the
    principle of modified parity, as recommended by the V CPC and
    accepted by the VI CPC and accepted by the Central
    Government provides that revised pension in no case shall be
    lower than 50% of the sum of the minimum of the pay in the
    pay band and grade pay corresponding to revised pay scale
    from which the pensioner had retried.      According to us, as
    already stated above, in the garb of clarification, respondents
    interpreted minimum of pay in the pay band as minimum of the
    pay band. This interpretation is apparently erroneous, for the
    reasons :

    a)     if the interpretation of the Government is accepted it
    would mean that pre-2006 retirees in S-29 grade retired in
    December, 2005 will get his pension fixed at Rs.23700/- and
    anther officer who retired in January 2006 at the minimum of
    the pay will get his pension fixed at Rs.27350/-. This hits the
    very principle of the modified parity, which was never intended
    by the Pay Commission or by the Central Government;

    b)     The Central Government improved upon many pay
    scales recommended by the VI CPC. The pay scale in S-29
    category was improved from Rs.39200-67000/- plus Grade Pay
    of Rs.9,000/- with minimum pay of Rs.43280/- to Rs.37,400-
    67000/- with grade pay of Rs.10,000/- with minimum pay of
    Rs.44,700/- (page 142 of the paper-book). If the interpretation
    of the Department of Pension is accepted, this will result in
    reduction of pension by Rs.4,00/- per month.       The Central
    Government did not intend to reduce the pension of pre-2006
    retirees while improving the pay scale of S-29 grade;

    c)     If the erroneous interpretation of the Department of
    Pension is accepted, it would mean that a Director level officer
    retiring after putting in merely 2 years of service in their pay
    band (S-24) would draw more pension than a S-29 grade
    officer retiring before 1.1.2006 and that no S-29 grade officer,
    whether existing or holding post in future will be fixed at
    minimum of the pay band, i.e., Rs.37,400/-. Therefore, fixation
    of pay at Rs.37,400/- by terming it as minimum of the pay in the
    pay band is erroneous and ill conceived; and

            d)     That even the Minister of State for Finance and Minister
            of State (PP) taking note of the resultant injustice done to the
            pre-11.2006 pensioners (pages 169-170) had sent formal
            proposal to the Department of Expenditure seeking rectification
            but the said proposal was turned down by the officer of the
            Department of Expenditure on the ground of financial
            implications. Once the Central Government has accepted the
            principle of modified parity, the benefit cannot be denied on the
            ground of financial constraints and cannot be said to be a valid
            reason.

            30.    In view of what has been stated above, we are of the
            view that the clarificatory OM dated 3.10.2008 and further OM
            dated 14.10.2008 (which is also based upon clarificatory OM
            dated 3.10.2008) and OM dated 11.02.2009, whereby
            representation was rejected by common order, are required to
            be quashed and set aside, which we accordingly do.
            Respondents are directed to re-fix the pension of all pre-2006
            retirees w.e.f. 1.1.2006, based on the resolution dated
            29.08.2008 and in the light of our observations made above.
            Let the respondents re-fix the pension and pay the arrears
            thereof within a period of 3 months from the date of receipt of a
            copy of this order. OAs are allowed in the aforesaid terms, with
            no order as to interest and costs."


    6.    The Full Bench had set aside the orders dated 3.10.2008 and

    11.2.2009 (Annexure R-2 and Annexure R-11). Thus the stipulation that

    the pension will be reduced pro-rata as contained in para 4.2 of OM dated

    3.10.2008 which was the basis of fixation of pension at the reduced rate by

    the respondents stands already quashed.             Order dated 11.2.2009

    (Annexure R-11) which only reiterated the clarification contained in OM

    dated 3.10.2008 and earlier OM dated 1.9.2008 having also been quashed

    by the Full Bench, in the case of the applicant his entitlement remains

    intact at Rs.10500/- and the reduction communicated and executed vide

    Annexure A-2 and Annexure A-3 has thus become erroneous as the basis

    for such reduction itself is no longer available. In view of the above, this

    application is allowed to the following extent :-

    (a)   It is declared that the applicant is entitled to 50% of his minimum pay

    in the scale of pay of Rs.15600 and 50% of the grade pay attached to it as

    pension.



    (b)   Consequently, it is declared that Annexure A-2 and Annexure A-3

    being erroneous are liable to be quashed and set aside. It is accordingly

    ordered.



    7.    Respondents, especially, respondent No.2 shall forthwith authorize

    respondent No.4 to reschedule the pension as earlier available to the

    applicant (ie. Rs.10500/- p.m). Any recovery that has been effected in the

    wake of issue of Annexure A-2 and Annexure A-3 orders shall be refunded

    to the applicant.



    8.    The applicant has claimed interest at the rate of 12% per annum. As

    the mistake committed by the respondents is not in the character of

    deliberate misinterpretation of the rule, showing indulgence no interest is

    directed to be paid by the respondents.



    9.    The applicant has also challenged the Amendment Rules, 2011 to

    the Central Civil Service (Pension) Rules.           Though counsel for the

    applicant advanced his argument focusing upon the aforesaid relief, we are

    of the considered view that in view of the quashing and setting aside of

    Annexure A-2 and Annexure A-3 orders, no orders may be necessary to be

    passed in connection with the prayer at 8 (1).

    10.   The time limit calendered for passing of necessary orders by the

    respondent No.2 is one month from the date of communication of this

    order. The time limit scheduled for restoring the pension at Rs.10500/- is

    within two weeks from the date of receipt of the authority from respondent

    No.2 by respondent No.5. And time limit fixed for payment of arrears of

    pension and also refund of recovery already made is four weeks from the

    date of receipt of the communication from the respondent No.2 by

    respondent No.5 restoring the pension.



    11.   Under the above circumstances, there shall be no order as to costs.

                    (Dated this the 23rd day of January 2012)




    K.GEORGE JOSEPH                                          Dr.K.B.S.RAJAN
    ADMINISTRATIVE MEMBER                                JUDICIAL MEMBER

    asp


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