Govt has no power to withhold Pensionary Benefits if departmental or judicial proceeding are pending: Supreme Court

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION 

CIVIL APPEAL NO. 6770 OF 2013 

(Arising out of Special Leave Petition (Civil) No. 1427 of 2009) 

State of Jharkhand & Ors. ….. Appellant(s) 

Vs. 

Jitendra Kumar Srivastava & Anr. …..Respondent(s) 

WITH 

C.A. No. 6771/2013 

(arising out of SLP(C) No. 1428 of 2009) 

J U D G M E N T 

A.K. Sikri, J 

1. Leave granted. pensionary

2. Crisp and short question which arises for consideration in these cases is as to whether, in the absence of any provision in the Pension Rules, the State Government can withhold a part of pension and/or gratuity during the pendency of departmental/ criminal proceedings? The High Court has - answered this question, vide the impugned judgment, in the negative and hence directed the appellant to release the withheld dues to the respondent. Not happy with this outcome, the State of Jharkhand has preferred this appeal. 

3. For the sake of convenience we will gather the facts from Civil Appeal arising out of SLP(Civil) No. 1427 of 2009. Only facts which need to be noted, giving rise to the aforesaid questions of law, are the following: 

The respondent was working in the Department of Animal Husbandry and Fisheries. He joined the said Department in the Government of Bihar on 2.11.1966. On 16.4.1996, two cases were registered against him under various Sections of the Indian Penal Code as well as Prevention of Corruption Act, alleging serious financial irregularities during the years 1990-1991, 1991-1992 when he was posted as Artificial Insemination Officer, Ranchi. On promulgation of the Bihar Reorganisation Act, 2000, State of Jharkhand (Appellant herein) came into existence and the Respondent became the employee of the appellant State. Prosecution, in respect of the aforesaid two criminal cases against the respondent is pending. On 30th January, 2002, the appellant also ordered initiation of disciplinary action against him. While these proceedings were still pending, on attaining the age of superannuation, the respondent retired from the post of Artificial Insemination Officer, Ranchi on 31.08.2002. The appellant sanctioned the release and payment of General Provident Fund on 25.5.2003. Thereafter, on 18.3.2004, the Appellant sanctioned 90 percent provisional pension to the respondent. Remaining 10 percent pension and salary of his suspension period (30.1.2002 to 30.8.2002) was withheld pending outcome of the criminal cases/ departmental inquiry against him. He was also not paid leave encashment and gratuity. 

4. Feeling aggrieved with this action of the withholding of his 10 percent of the pension and non-release of the other aforesaid dues, the respondent preferred the Writ Petition before the High Court of Jharkhand. This Writ Petition was disposed of by the High Court by remitting the case back to the Department to decide the claim of the petitioner for payment of provisional pension, gratuity etc. in terms of Resolution No. 3014 dated 31.7.1980. The appellant, thereafter, considered the representation of the respondent but rejected the same vide orders dated 16.3.2006. The respondent challenged the rejection by filing another Writ Petition before the High Court. The said petition was dismissed by the learned Single Judge. The respondent filed C.A. No.6770/2013 @ SLP (C) No. 1427 of 2009 Intra Court Appeal which has been allowed by the Division Bench vide the - impugned orders dated 31.10.2007. The Division Bench has held that the question is squarely covered by the full Bench decision of that Court in the case of Dr. Dudh Nath Pandey vs. State of Jharkhand and Ors. 2007 (4) JCR 1. In the said full Bench Judgment dated 28.8.2007, after detailed discussions on the various nuances of the subject matter, the High Court has held: 

“ To sum up the answer for the two questions are as follows: 

(i) Under Rule 43(a) and 43(b) of Bihar Pension Rules, there is no power for the Government to withhold Gratuity and Pension during the pendency of the departmental proceeding or criminal proceeding. It does not give any power to withhold Leave Encashment at any stage either prior to the proceeding or after conclusion of the Proceeding.
(ii) The circular, issued by the Finance Department, referring to the withholding of the leave encashment would not apply to the present facts of the case as it has no sanctity of law”.

5. Mr. Amarendra Sharan, the learned Senior Counsel appearing for the petitioner accepted the fact that in so far as the Pension Rules are concerned, there is no provision for withholding a part of pension or gratuity. He, however, submitted that there are administrative instructions which permit withholding of a part of pension and gratuity. His submission was that when the rules are silent on a particular aspect, gap can be filled by the - administrative instructions which was well settled legal position, laid down way back in the year 1968 by the Constitution Bench Judgment of this Court in Sant Ram Sharma vs. Union of India 1968 (1) SCR 111. He, thus, argued that the High Court has committed an error in holding that there was no power with the Government to withhold the part of pension or gratuity, pending disciplinary/criminal proceedings. 

6. The aforesaid arguments of the learned Senior Counsel based on the judgment in Sant Ram Sharma would not cut any ice in so far as present case is concerned, because of the reason this case has no applicability in the given case. Sant Ram judgment governs the field of administrative law wherein the Constitution Bench laid down the principle that the rules framed by the authority in exercise of powers contained in an enactment, would also have statutory force. Though the administration can issue administrative instructions for the smooth administrative function, such administrative instructions cannot supplant the rules. However, these administrative instructions can supplement the statutory rules by taking care of those situations where the statutory rules are silent. This ratio of that judgment is narrated in the following manner: 

“It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade - officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions and inconsistent with the rules already framed”. 

There cannot be any quarrel on this exposition of law which is well grounded in a series of judgments pronounced post Sant Ram Sharma case as well. However, the question which is posed in the present case is altogether different. 

7. It is an accepted position that gratuity and pension are not the bounties. An employee earns these benefits by dint of his long, continuous, faithful and un-blemished service. Conceptually it is so lucidly described in D.S. Nakara and Ors. Vs. Union of India; (1983) 1 SCC 305 by Justice D.A. Desai, who spoke for the Bench, in his inimitable style, in the following words: 

“The approach of the respondents raises a vital and none too easy of answer, question as to why pension is paid. And why was it required to be liberalised? Is the employer, which expression will include even the State, bound to pay pension? Is there any obligation on the employer to provide for the erstwhile employee even after the contract of employment has come to an end and the employee has ceased to render service? 

What is a pension? What are the goals of pension? What public interest or purpose, if any, it seeks to serve? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition. 

The antiquated notion of pension being a bounty a gratituous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad v. State of Bihar and Ors.[1971] Su. S.C.R. 634 wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon any one’s discretion. It is only for the purpose of quantifying the amount having regard to service and other allied maters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab and Anr. V. Iqbal Singh (1976) IILLJ 377SC”. 

8. It is thus hard earned benefit which accrues to an employee and is in the nature of “property”. This right to property cannot be taken away  without the due process of law as per the provisions of Article 300 A of the Constitution of India. 

9. Having explained the legal position, let us first discuss the rules relating to release of Pension. The present case is admittedly governed by - 

Bihar Pension Rules, as applicable to the State of Jharkhand. Rule 43(b) of the said Pension Rules confers power on the State Government to withhold or withdraw a pension or part thereof under certain circumstances. This Rule 43(b) reads as under: 

“43(b) The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty to grave misconduct, or to have caused pecuniary loss to Government misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement”. 

From the reading of the aforesaid Rule 43(b), following position emerges:- 
(i) The State Government has the power to withhold or withdraw pension or any part of it when the pensioner is found to be guilty of grave misconduct either in a departmental proceeding or judicial proceeding.
(ii) This provision does not empower the State to invoke the said power while the department proceeding or judicial proceeding are pending.
(iii) The power of withholding leave encashment is not provided under this rule to the State irrespective of the result of the above proceedings.
(iv) This power can be invoked only when the proceedings are concluded finding guilty and not before.
10. There is also a Proviso to Rule 43(b), which provides that:-

“A. Such departmental proceedings, if not instituted while the Government Servant was on duty either before retirement or during re-employment.

i. Shall not be instituted save with the sanction of the State Government.
ii Shall be in respect of an event which took place not more than four years before the institution of such proceedings.
iii Shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made:- 

B. Judicial proceedings, if not instituted while the Government Servant was on duty either before retirement or during re-employment shall have been instated in accordance with sub clause (ii) of clause (a) and 

C. The Bihar Public Service Commission, shall be consulted before final orders are passed. 

It is apparent that the proviso speaks about the institution of proceedings. For initiating proceedings, Rule 43(b) puts some conditions, i.e, Department proceeding as indicated in Rule 43(b), if not instituted while the Government Servant was on duty, then it shall not be instituted except:-

(a) With the sanction of the Government,
(b) It shall be in respect of an event which took place not more than four years before the institution of the proceedings.
(c) Such proceedings shall be conducted by the enquiry officer in accordance with the proceedings by which dismissal of the services can be made.

Thus, in so far as the proviso is concerned that deals with condition for initiation of proceedings and the period of limitation within which such proceedings can be initiated. 

11. Reading of Rule 43(b) makes it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension etc. ONLY when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had committed grave misconduct in the discharge of his duty while in his office. There is no provision in the rules for withholding of the pension/ gratuity when such departmental proceedings or judicial proceedings are still pending. 

12. Right to receive pension was recognized as right to property by the Constitution Bench Judgment of this Court in Deokinandan Prasad vs. State of Bihar; (1971) 2 SCC 330, as is apparent from the following discussion:

“29. The last question to be considered, is, whether the right to receive pension by a Government servant is property, so as to attract Articles 19(1)(f) and 31(1) of the Constitution. This question falls to be decided in order to consider whether the writ petition is maintainable under Article 32. To this aspect, we have already adverted to earlier and we now proceed to consider the same. 

30. According to the petitioner the right to receive pension is property and the respondents by an executive order dated June 12, 1968 have wrongfully withheld his pension. That order affects his fundamental rights under Articles 19(1)(f) and 31(1) of the Constitution. The respondents, as we have already indicated, do not dispute the right of the petitioner to get pension, but for the order passed on August 5, 1966. There is only a bald averment in the counter-affidavit that no question of any fundamental right arises for consideration. Mr. Jha, learned counsel for the respondents, was not prepared to take up the position that the right to receive pension cannot be considered to be property under any circumstances. According to him, in this case, no order has been passed by the State granting pension. We understood the learned counsel to urge that if the State had passed an order granting pension and later on resiles from that order, the latter order may be considered to affect the petitioner's right regarding property so as to attract Articles 19(1) (f) and 31(1) of the Constitution. 

31. We are not inclined to accept the contention of the learned counsel for the respondents. By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the Rules. The Rules, we have already pointed out, clearly recognise the right of persons like the petitioner to receive pension under the circumstances mentioned therein. 

32. The question whether the pension granted to a public servant is property attracting Article 31(1) came up for consideration before the Punjab High Court in Bhagwant Singh v. Union of India A.I.R. 1962 Pun 503. It was held that such a right constitutes "property" and any interference will be a breach of Article 31(1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in Letters Patent Appeal by the Union of India. The Letters Patent Bench in its decision in Union of India v. Bhagwant Singh I.L.R. 1965 Pun 1 approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is "property" within the meaning of  Article 31(1) of the Constitution and he could be deprived of the same only by an authority of law and that pension does not cease to be property on the mere denial or cancellation of it. It was further held that the character of pension as "property" cannot possibly undergo such mutation at the whim of a particular person or authority. 

33. The matter again came up before a Full Bench of the Punjab and Haryana High Court in K.R. Erry v. The State of Punjab I.L.R. 1967 P & H 278. The High Court had to consider the nature of the right of an officer to get pension. The majority quoted with approval the principles laid down in the two earlier decisions of the same High Court, referred to above, and held that the pension is not to be treated as a bounty payable on the sweet will and pleasure of the Government and that the right to superannuation pension including its amount is a valuable right vesting in a Government servant It was further held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause against the imposition of penalty for lapse or misconduct on his part and he has been found guilty, nevertheless, when a cut is sought to be imposed in the quantum of pension payable to an officer on the basis of misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared to agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the State. It is not necessary for us in the case on hand, to consider the question whether before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does not arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High C.A. No.6770/2013 @ SLP (C) No. 1427 of 2009 Court decision, on this aspect. But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant. 

34. This Court in State of Madhya Pradesh v. Ranojirao Shinde and Anr. MANU/SC/0030/1968 : [1968]3SCR489 had to consider the question whether a "cash grant" is "property" within the meaning of that expression in Articles 19(1)(f) and 31(1) of the Constitution. This Court held that it was property, observing "it is obvious that a right to sum of money is property". 

35. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19(1)(f) and it is not saved by Sub-article (5) of  Article 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1) (f) and 31(1)of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law”. 

13. In State of West Bengal Vs. Haresh C. Banerjee and Ors. (2006) 7 SCC 651, this Court recognized that even when, after the repeal of Article 19(1)(f) and Article 31 (1) of the Constitution vide Constitution (Forty- Fourth Amendment) Act, 1978 w.e.f. 20th June, 1979, the right to property was no longer remained a fundamental right, it was still a Constitutional right, as provided in Article 300A of the Constitution. Right to receive pension was treated as right to property. Otherwise, challenge in that case was to the vires of Rule 10(1) of the West Bengal Services (Death-cum-- Retirement Benefit) Rules, 1971 which conferred the right upon the Governor to withhold or withdraw a pension or any part thereof under certain circumstances and the said challenge was repelled by this Court. Fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in “property”. 

14. Article 300 A of the Constitution of India reads as under: 

“300A Persons not to be deprived of property save by authority of law. - No person shall be deprived of his property save by authority of law.” 

Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced. 

15. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as “law” within the meaning of aforesaid Article 300A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold - even a part of pension or gratuity. As we noticed above, so far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different. 

16. We, accordingly, find that there is no merit in the instant appeals as the impugned order of the High Court is without blemish. Accordingly, these appeals are dismissed with costs quantified at Rs. 10,000/- each. 

[Justice K.S. Radhakrishnan] 

[JusticeA.K. Sikri] 

New Delhi 

August 14, 2013 

APPLICATION FOR ISSUE OF CORR PPO INRESPECT OF TRADES MTD, CAT ASST.ACHGD

Directorate of Air Veterans III <dav.airmen@gov.in>	Tue, Jul 24, 2018 at 5:23 PM
To: JCOOR VETERANS WELFARE ASSOCIATION OF INDIA <jovwaindia@gmail.com>
Sir,  PPOs/Corr PPOs are prepared/issued by the O/o PCDA (P) Allahabad (Pre-Nov 84 retirees)/ JCDA (AF) New Delhi (Post Nov 84 retirees) and the information sought in the format is the same required by both the PSAs (Pension Sanctioning Authorities).  The information required for issued of Corr PPO of Group-Y as details of PDA may be changed in most of the cases of pensioners.  The proforma is required to be verified by PDA of pensioners to ascertain the correctness of PDA details (SB A/c No... name and address of PDA). On 06/27/18 11:12 AM, JCOOR VETERANS WELFARE ASSOCIATION OF INDIA <jovwaindia@gmail.com> wrote: Respected Sir, We invite your Kind attention to the issue of Pen Pol letter dated 8th Mach 2018  Bring of the above trade to Y Group w.e.f., 10/10/1997 & payment of arrears there off (attached). In this connection we note that DAV has adopted the policy of issuing application forms to individuals who demand for it. In this digital era, it  consumes more man power of DAV as well as of the individual.Affected Veterans are on the run to get performa as issued by you to certain Veterans. Hence we Kindly Request you to upload the Performa format in the DAV web site at your earliest. Yours Sincerely, MBC MENON GEN SECRETARY JCO/OR VETERANS WELFARE ASSOCIATION OF INDIA

THE CUMULATIVE DA ON 7TH CPC BECOMES 9 PERCENT

Cabinet approves additional 2 percent Dearness Allowance (DA) for Central Government employees and Dearness Relief (DR) to pensioners w.e.f. 1st July, 2018

The Union Cabinet, chaired by the Prime Minister Shri Narendra Modihas approved to release an additional instalment of Dearness Allowance (DA) to Central Government employees and Dearness Relief (DR) to pensioners w.e.f. 01.07.2018 representing an increase of 2% over the existing rate of 7% of the Basic Pay/Pension, to compensate for price rise.

The combined impact on the exchequer on account of both Dearness Allowance and Deamess Relief would be Rs.6112.20 crore per annum and Rs.4074.80 crore in the financial year 2018-19 (for a period of 08 months from July, 2018 to February, 2019).

This will benefit about 48.41 lakh Central Government employees and 62.03 lakh pensioners.

This increase is in accordance with the accepted formula, which is based on the recommendations of the 7th Central Pay Commission.

7th CPC and OROP: Revision of Casualty Pensionary Awards in respect of Pre-2006 Armed Forces Officer and JCOs/ORs pensioners - Clarification

OFFICE OF THE PR. CONTROLLER OF DEFENCE ACCOUNTS (PENSIONS) 

DRAUPADI GHAT, ALLAHABAD- 211014 

Circular No. 604 

Dated: 16.08.2018 

To, 

1. The Chief Accountant, RBI, Deptt. Of Govt. Bank Accounts, Central office C-7, Second Floor, Bandre- Kuria Complex, P B No 8143, Bandre East Mumbai- 400051 
2. All CMDs, Public Sector Banks including IDBI Bank 
3. Nodal Officers, ICICl/ HDFC/ AXIS/ IDBI Banks 
4. Managers, All CPPCs 
5. Military and Air Attache, Indian Embassy, Kathmandu, Nepal 
6. The PCDA (WC), Chandigarh 
7. The CDA (PD), Meerut 
8. The CDA, Chennai 
9. The Director of Treasuries, All States 
10. The Pay and Accounts Officer, Delhi Administration, RK Puram and Tis Hazari, New Delhi 
11. The Pay and Accounts Office, Govt of Maharashtra, Mumbai 
12. The Post Master Kathua (J&K) 
13. The Post Master Camp Bell Bay 
14. The Pr. Pay and Accounts Officer, Andaman and Nicobar Administration, Port Blair 

Sub:- Revision of Casualty Pensionary Awards in respect of Pre-2006 Armed Forces Officer and JCOs/Ors pensioners: Clarification. 

Ref:- This office Circular No. 569 dated 19.10.2016. 

There are several representations from various War Veteran Associations demanding the benefit of Maximum of Term of Engagement in OROP as well as in 7th CPC revision quoting the Para-3 of Circular No. 569 dated 19.10.2016. Thus, it appears that there are some misinterpretation /confusion about Para-3 of Circular No. 569 dated 19.10.2016, which needs to be clarified in this regard. 

Earlier vide Annexure No.-II of MoD letter No. 200847/Pen-C/71 dated 24.02.1972, there was a provision that Service Element of War Injury Pension will be equal in amount to the normal retiring pension of the rank held at the time of disablement for maximum service of rank. It means Service Element of War Injury Pension was admissible for maximum term of engagement subject to restriction that War Injury Pension should not be more than last pay drawn. Prior to 6th CPC the Service Element/ Service Pension was given 50% of the reckonable emoluments for 33 years of Qualifying Service including weightage, and for lesser period it was proportionately reduced. It is pertinent to mention that after evolution of 6th CPC provision concept of pro-rata reduction has been dispensed with. As per 6th CPC orders pension will be 50% of the last pay drawn irrespective of Qualifying Service. Therefore, relevance of Maximum Term of Engagement becomes obsolete. 

The minimum guaranteed pension after implementation of 6th Central Pay Commission, was initially determined on the basis of minimum of the Pay in Pay Band plus Grade Pay vide MoD letter dated 11.11.2008 (Circular No. 397 of this office). This was further modified with issue of MoD letter No. 1(04)/ 2015 / (1)-D (Pen/ Pol) dated 03.09 .2015 for revision of Service Pension/ Service Element in respect of Pre-2006 Commissioned Officers/JCOs/ORs pensioners on the basis of minimum of fitment table for the Rank in the revised Pay Band as indicated under fitment tables, and accordingly Circular No. 547 and 548 has been issued for PBORs and Commissioned Officers respectively. The ibid minimum guaranteed pension was calculated as 50% of minimum of fitment table for 33 years of Qualifying Service including weightage with pro-rata reduction for lesser period. 

The minimum guaranteed disability element/war injury element was not covered in the ibid MoD letter dated 03.09.2015. Therefore, .MoD letter No. 16(01)/2014/ D(Pen/ Pol) dated 18.05.2016 was issued (Circular No. 560) for revision of Casualty Pensionary awards in respect of Pre-2006 Armed Forces Officers and JCO/ORs Pensioners/ Family Pensioners, which provides for minimum guaranteed Disability Element/War Injury Element. The clause of pension upto Maximum Term of Engagement in case of War Disabled Pensioners which was admissible prior to 6th CPC was omitted in both the above circulars of minimum guaranteed pension. Therefore, there was a need to clarify this issue and hence the Para-3 has been inserted in Circular No. 569 dated 19.10.2016. After issue of GOI MoD letter No. 1(2)/2016-D(Pen/Pol) dated 30.09.2016 for delinking of qualifying service of 33 years for revision of pension under minimum guaranteed pension, Para No, 3 of Circular No. 569 has become redundant and therefore this Para-3 may be treated as deleted. 

After implementation of 6th CPC and subsequently also in 7th CPC, pension will be determined on the basis of 50% of last pay drawn irrespective of Qualifying Service, so the relevance of pro-rata reduction for lesser qualifying service become redundant as full pension is admissible for each qualifying service in each rank. Therefore, pension upto term of engagement has also become redundant. Further, the pension as per OROP rates was based on the live data of 2013 retirees where pension was given as per 6th CPC provisions. Therefore, the demand of pension upto term of engagement has also become obsolete. 

Therefore, it is requested that the issue may be dealt with accordingly and the pensioner approaching for this may be clarified on similar lines duly stating that pension upto term of engagement in case of war disabled pensioners in OROP as well as 7th CPC revision is irrelevant. 

This circular has been uploaded on official website of this office www. pcdapension.nic.in 

No. Gts/Tech/05/LXXX 

Dated: 16.08.2018 

(Sushil Kumar Singh) 

Jt. CDA(P) 

Benefits of MACPs w.e.f. 1.1.2006 - Supreme Court Judgment - Representation to DOP&T

Grant of financial upgradation under ACP & MACP schemes for the central Government Civilian Employees including Railway employees

NFIR

No. IV/MACPs/09/part II

Dated: 21/08/2018

The Secretary / DoP&T
(Department of personnel PG & pension),
Department of personnel & Training,
North Block,
New Delhi.
Dear Sir,

Sub: Grant of financial upgradation under ACP & MACP schemes for the central Government Civilian Employees including Railway employees – reg.

Ref: (i)  Dop&T oM No.35034/1/97-Estt (D) dated 09/08/1999.

(ii) Dop&T oM No.35034/3/2008-Estt (D) dated 19/05/2009.

NFIR invites kind attention to the OM dated 09/08/1999 wherein the Government of India (DoP&T) had introduced ‘Assured career Progression Scheme‘ (ACPs) for the central Government civilian Employees pursuant to the recommendation of 5th central pay commission. The ACP Scheme was made effective in the Central Government departments from 1999. The ACP Scheme remained functional until 31/08/2008 (as clarified by the DoP&T vide para 9 its OM dated 19/05/2009) due to the fact that the ‘Modified Assured Carrer Progression Scheme‘ was introduced by the DoP&T, replacing ACPS w.e.f. 01/09/2008, pursuant to the recommendations of 6th CPC.

The Federation has however been receiving representations from the Central Government civilian Employees, mainly railway employees from all corners of the country to make the MACP Scheme operational w.e.f. 01/01/2006 instead from 01/09/2008, pursuant to the order dated 08th December, 2017 passed by the Hon’ble Supreme Court in Civil Appeal Diary No.3744 of 2016. In this connection, NFIR places following facts for consideration:-

• on perusal of the order of the Apex court, it is found that the Hon’ble Apex court has held that the MACP is a part of pay structure recommended by the 6th CPC, the same cannot be considerd as allowance which had been given effect from 01/09/2008. The said order has also cited the Resolution dated 30/08/2008 of the Government which was referred in the notification issued by the Ministry of Finance wherein MACP has been defined part of ‘Pay structure‘ and not as ‘Allowance‘ and therefore should be given effect from 01/01/2006.
• The order dated 8th Dec 2017 passed by the Apex court has already been implemented by the Ministry of Defence, giving effect to the MACPs w.e.f.01/01/2006 through an OM dated 25/07/2018.
• DoP&T may kindly take note that in para 6.5.2 & 6.5.4 of the report of 6th CPC, the Commission had recommended for implementation of the revised pay structure consisting of Pay Band and Grade Pay w.e.f. 01/01/2006 while the revised allowances were given effect from prospective date i.e. 01/09/2008.
• Ministry of Finance vide Gazette of India, Extraordinary Notification of Resolution No. 1/1/2008-IC dated 29/08/2008 had implemented revised pay structure (Pay Band & Grade Pay) w.e.f. 01/01/2006 whereas the implementation of MACPS was made effective from 0110912008, Accordingly, Ministry of Railways also implemented revised Pay structure w.e.f. 01/01/2006 vide its order dated 04/09/2008 while the rates of Non Practicing Allowance (NPA) were revised w.e.f. 01/01/2006 vide Board’s order dated 22/09/2008. Therefore, the MACPS which is part of Pay structure as decided by Apex Court should be given effect from 01/01/2006 in railways and all other Central Government departments.
• Another important fact which cannot be ignored is, that the Apex Court had held that the benefit of ACP granted to an employee is part of the Pay structure which not only affects the pay but also pension of the employee, therefore, decided that the ACP is not allowance but a part of pay. At the same time, the Hon’ble Supreme Court further held that there can be no dispute that grant of ACP is part of pay structure and that the resolution dated 30/08/2008 relating to implementation of 6th CPC recommendations on pay structure, pay bands, grade pay etc have been given effect from 0110112006 and also added that this is the decision of the Cabinet which could not have been modified by issuing executive instructions.

NFIR suggests that while issuing modified instructions, in compliance with Apex Court order, the DoP&T may allow option opportunity to all those beneficiaries of ACPS as well MACPS to exercise their option for financial upgradation from the dates advantageous to them so as to avoid further grievances.

Summing up, NFIR urges upon the DoP&T to kindly consider the above points and issue modified instructions for granting financial upgradation under MACPS with effect from 01/01/2006 as was done by the Ministry of Defence. A copy of the instructions issued may be endorsed to this Federation.

Yours faithfully,

(Dr.M.Raghavaiah)

General Secretary

7th Pay Commission: No hike in minimum pay, No change in fitment factor and No change in retirement age

There was a bitter disappointment in store for fifty lakh Central government employees and an equal number of retirees, who have been waiting for a hike in minimum pay and fitment factor beyond the 7th Pay Commission recommendations. There was lot of speculation that PM Narendra Modi may give some good news in his last Independence Day budget in this term as PM. Many believed that looking at good monsoon and positive economic factors, a positive announcement may come months before the general elections. 

Earlier declared by staffnews Click to view: Increase of fitment factor from 2.57 to 3.68 under 7th CPC - Latest official statement before PM's Independence Day speech

While PM Modi spoke about how Indian economy will be a powerhouse in next three decades, he didn't have any news to offer for the government employees. 

Minister of State for Finance P. Radhakrishnan earlier in Lok Sabha had said that the Prime Minister's Narendra Modi government is not planning to give any hike in minimum basic salary beyond the recommendations of the seventh pay commission. However, the Haryana government approved pay scale recommendations of teaching and non-teachings staff at government universities, government universities and govt-aided colleges with effect from Jan 1,2016.

The Maha government also has announced a salary hike under 7th Pay Commission from January 2019 for 17 lakh state employees. . So obviously the Central government employees are also hoping for some positive news. It may be noted that the government at any time can announce such a decision, and it doesn't need to be on a special day. It may come closer in the heels to the election. 

It is to be noted though that in the hopes of minimum pay hike beyond the recommendations of the 7th CPC might get a blow from the Central Bank itself. Earlier this month, RBI decided to increase the policy repo rate by 25 basis points to 6.5%. The reverse repo rate has been hiked to 6.25%, the RBI announced after its three-day Monetary Policy Committee (MPC) meeting.

"RBI's Monetary Policy Committee has decided to increase the policy repo rate under the liquidity adjustment facility (LAF) by 25 basis points to 6.5% Consequently, the reverse repo rate under the LAF stands adjusted to 6.25% and marginal standing facility rate and Bank Rate to 6.75%," the apex bank said in a statement. 

RBI in its report mentioned that inflation rates have increased on account of implementation of 7th Pay Commission. The revised HRA structure came into place in July 2017 under the 7th Pay Commission.

Currently, the Central government employees are getting basic pay according to the fitment formula of 2.57 of the basic pay and if this big step is taken, it will come as a massive news for the Central government employees. Fitment factor is a figure used by 7th CPC with which the basic pay in 6th CPC regime (i.e Pay in Pay band + Grade pay) is multiplied in order to fix basic pay in revised pay structure (i.e 7th CPC). Fitment factor formulated by 7th CPC is 2.57.

There were talks about Modi raising the retirement age of central government employees. That also didn't come through

HAPPY INDEPENDENCE DAY