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
