Kerala High Court
All India Bsnl Pensioners Welfare ... vs Union Of India on 7 February, 2025
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
FRIDAY, THE 7TH DAY OF FEBRUARY 2025 / 18TH MAGHA, 1946
OP (CAT) NO. 60 OF 2020
AGAINST THE ORDER/JUDGMENT DATED 30.10.2019 IN OA NO.346 OF
2018 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONERS/APPLICANTS:
1 ALL INDIA BSNL PENSIONERS WELFARE ASSOCIATION
AH 189/61, 3RD STREET, AUROVILE FLATS,
ANNA NAGAR,CHENNAI-600040
REPRESENTED BY ITS PRESIDENT, P.S.RAMANKUTTY,
AGED 74 YEARS, S/O LATE R.SIVARAMAN NAIR,
RESIDING AT TC 55/1953,
CTO COLONY, PAPPANAMCODE, TRIVANDRUM-695018.
2 P.VADIVEL,
AGED 75 YEARS
S/O LATE V.PERUMAL, RETIRED CHIEF SECTION SUPERVISOR,
O/O PRINCIPAL GENRAL MANAGER,
BSNL BHAVAN, ERNAKULAM,
RESIDING AT 10/855, AMBADY,
S.S.KRISHNAN ROAD, FORT KOCHI, KOCHI-682001.
BY ADV
R.SREERAJ
RESPONDENTS/RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY,
DEPARTMENT OF TELECOM, SANCHAR BHAVAN,
20, ASOKA ROAD, NEW DELHI-110001.
2 BHARAT SANCHAR NIGAM LIMITED,
CORPORATE OFFICE, BHARAT SANCHAR BHAWAN,
HARISH CHANDRA MATHUR LANE,NEW DELHI-110001.
OP (CAT) NO. 60 OF 2020 -2-
2025:KER:15196
3 THE SECRETARY,
GOVERNMENT OF INDIA,MINISTRY OF HEAVY
INDUSTRIES AND PUBLIC ENTERPRISES,
DEPARTMENT OF PUBLIC ENTERPRISES,
PUBLIC ENTERPRISES BHAWAN, BLOCK NO.14,
CGO COMPLEX,LODHI ROAD, NEW DELHI-110001.
4 THE SECRETARY,
GOVERNMENT OF INDIA,MINISTRY OF PERSONNEL,
PUBLIC GRIEVANCES AND PENSIONS,
DEPARTMENT OF PENSIONS AND PENSIONERS'
WELFARE,NEW DELHI-110001.
5 THE CONTROLLER OF COMMUNICATION ACCOUNTS,
BSNKL BHAWAN, KERALA CIRCLE, TRIVANDRUM-695033.
BY ADVS.
SRI.T.C.KRISHNA (DSGI IN CHARGE)
SMT.K.R.KRISHNAKUMARI
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON
07.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP (CAT) NO. 60 OF 2020 -3-
2025:KER:15196
JUDGMENT
AMIT RAWAL , J The present O.P.(CAT) is directed against the judgment of the Central Administrative Tribunal denying the following claim laid by the applicants:
"To direct the respondents to extend to the pre- 2006 DoT absorbed BSNL IDA pensioners, the benefit of Annexure A-5 OM, revise their pension by applying the pension formula of 50% of the last pay drawn or 50% of the last ten months average pay which ever is advantageous to them and disburse all the consequential benefits to them with arrears and interest.
2) Such other relief as may be prayed for and this Hon'ble Tribunal may deem fit to grant.
3) Grant the cost of this Original Application."
2. Before we could dictate the judgment, we have seen that the O.A. was filed on behalf of the association and none of the persons. It is settled law that the association cannot espouse the grievance of the major persons. Therefore, the present O.P.(CAT) will be only confined to the relief viz-a-viz petitioner No.2.
OP (CAT) NO. 60 OF 2020 -4-2025:KER:15196
3. Brief facts of the petitioners/applicants giving them a cause to claim the benefit aforementioned is enumerated hereinbelow:
There were two departments of the Government i.e., Department of Posts & Telegraph and Telecommunications. Department of Posts and Telegraph was bifurcated in 1987 into Department of Posts and Department of Telecommunications, thereafter Department of Telecommunications merged into BSNL on 01.10.2000. The Government, on acceptance of the recommendations of the 6th Central Pay Commission, issued orders granting pension at the rate of 50% of the average emoluments for the last of ten(10) months of 50% of the last pay drawn whichever is more beneficial to the pensioner. Accordingly, Rule 37A was also incorporated in the CCS (Pension) Rules, 1972, in 2002.
Thereafter, 7th Central Pay Commission also came into OP (CAT) NO. 60 OF 2020 -5- 2025:KER:15196 force with effect from 01.01.2016. On merging, option was given to the employees to opt for combined service benefit i.e., consisting of government and the public undertaking or separately from the Government.
Petitioner No.2 is a retiree opted for combined services benefits. On 12.05.2017, Ministry of Personnel, PG & Pensions, Department of Pension & Pensioners' Welfare came out with an Office Memorandum with the subject of implementation, the decision of the Government on recommendations of the 7th Pay Commission that revision of pension of pre-2016 pensioners/family pensioners.
Concededly, petitioner No.2 is a pre-2016 pensioner.
4. Paragraph Nos.4 and 12 of the aforementioned implementation letter reads as under:
".....4. The aforesaid Committee has submitted its Report and the recommendations made by the Committee have been considered by the Government. Accordingly, it has been decided that the revised pension/family pension w.e.f. 01.01.2016 in respect of all Central civil pensioners/family pensioners, including CAPF's, OP (CAT) NO. 60 OF 2020 -6- 2025:KER:15196 who retired/died prior to 01.01.2016, may be revised by notionally fixing their pay in the pay matrix recommended by the 7th CPC in the level corresponding to the pay in the pay scale/pay band and grade pay at which they retired/died. This will be done by notional pay fixation under each intervening Pay Commission based on the Formula for revision of pay. While fixing pay on notional basis, the pay fixation formulae approved by the Government and other relevant instructions on the subject in force at the relevant time shall be strictly followed. 50% of the notional pay as on 01.01.2016 shall be the revised pension and 30% of this notional pay shall be the revised family pension w.e.f. 1.1.2016 as per the first Formulation. In the case of family pensioners who were entitled to family pension at enhanced rate, the revised family pension shall be 50% of the notional pay as on 01.01.2016 and shall be payable till the period up to which family pension at enhanced rate is admissible as per rules. The amount of revised pension/family pension so arrived at shall be rounded off to next higher rupee.
xxxxxxx xxxxxxx
12. The pension of the pensioners who are OP (CAT) NO. 60 OF 2020 -7- 2025:KER:15196 drawing monthly pension from the Government on permanent absorption in public sector undertakings/autonomous bodies will also be revised in accordance with these orders. However, separate orders will be issued for revision of pension of those pensioners who had earlier drawn one time lump sum terminal benefits on absorption in public sector undertakings, etc. and are drawing one-third restored pension as per the instructions issued by this Department from time to time."
On perusal of the above, it is evident that the aforementioned benefit has been given to the Government employee on permanent absorption in the public sector undertaking or autonomous bodies and their monthly pension will be revised in accordance with the orders i.e., in terms of 50% of notional pay as on 01.01.2016 and 30% of family pension with effect from 01.01.2016 strictly as per the provisions of Condition No.4. A representation was submitted by the petitioner to accord the aforementioned benefit on recommendation of 7th Central Pay Commission as the similar benefit on OP (CAT) NO. 60 OF 2020 -8- 2025:KER:15196 the recommendation of 6th Central Pay Commission was granted to the other pensioners. However, there was no decision on the aforementioned representation giving cause to file the original application.
5. Learned tribunal, vide order under challenge, rejected the claim by observing as under:
"6. The short point to be considered in this OA is whether Annexure A5 OM dated 12.5.2017 is applicable to the applicants who are BSNL IDA pensioners? On formation of BSNL w.e.f. 1.10.2000 the Government employees in Department of Telecom Services and Department of Telecom Operations were transferred en-masse to BSNL on deemed deputation basis. Later they were given option to either continue to be in Government service or to seek permanent absorption in BSNL. The applicants opted for absorption in BSNL and presidential orders were issued in their favour laying down comprehensive terms and conditions of their absorption in BSNL w.e.f. 1.10.2000. The applicants were given higher IDA pay scales as compared to their counterparts in Government service receiving CDA pay scales. The applicants were eligible for OP (CAT) NO. 60 OF 2020 -9- 2025:KER:15196 pensionary benefits on the basis of combined service rendered by them with the Central Government and the BSNL in accordance with formula for calculation of pension and family pension under CCS (Pension) Rules, 1972 at the time of their retirement from BSNL. The IDA pension was made applicable to BSNL absorbed employees w.e.f. 1.10.2000 onwards and it was subsequently revised w.e.f. 1.1.2007. The applicants are getting their pension/family pension in IDA pattern from Government as per Rule 37-A of CCS (Pension) Rules, 1972. Sub- rule (4) of Rule 37-A clearly stipulates as under:
"(4) The permanent absorption of the Government servants as employees of the Public Sector Undertaking shall take effect from the date on which their options are accepted by the Government and on and from the date of such acceptance, such employees shall cease to be Government servants and they shall be deemed to have retired from Government service." (emphasis supplied)
7. In the present case w.e.f. 1.10.2000 i.e. the date of the presidential order of absorption of the applicants in BSNL, they shall cease to be Government servants and shall be deemed to have retired from Government service.
Therefore, w.e.f. 1.10.2000 the applicants are not Government servants after their absorption and shall be treated as employees of the public OP (CAT) NO. 60 OF 2020 -10- 2025:KER:15196 sector undertaking. Sub-rule (7) of Rule 37-A of CCS (Pension) Rules, 1972 clearly stipulates that employees opting for permanent absorption in the public sector undertaking shall on and from the date of absorption be governed by the rules and regulations or by-laws of the public sector undertaking. Sub-rule (8) of Rule 37-A and the explanation below it reads thus:
"(8) A permanent Government servant who has been absorbed as an employee of a Public Sector Undertaking and his family shall be eligible for pensionary benefits (including commutation of pension, gratuity, family pension or extraordinary pension) on the basis of combined service rendered by the employee in the Government and in the Public Sector Undertaking in accordance with the formula for calculation of such pensionary benefits as may be in force at the time of his retirement from the Public Sector Undertaking or his death or at his option, to receive benefits for the service rendered under the Central Government in accordance with the orders issued by the Central Government.
Explanation - The amount of pension or family pension in respect of the absorbed employee on retirement from the Public Sector Undertaking or on death shall be calculated in the same way as calculated in the case of a Central Government servant retiring or dying on the same day."
The above quoted sub-rule 8 clearly stipulates that a permanent Government servant absorbed OP (CAT) NO. 60 OF 2020 -11- 2025:KER:15196 as an employee of a Public Sector Undertaking shall be eligible for pensionary benefits (including commutation of pension, gratuity, family pension or extraordinary pension) on the basis of combined service rendered by the employee in the Government and in the Public Sector Undertaking in accordance with the formula for calculation of such pensionary benefits as may be in force at the time of his retirement from the Public Sector Undertaking or at his option, to receive benefits for the service rendered under the Central Government in accordance with the orders issued by the Central Government. Here the applicants have given option for permanent absorption in BSNL and retired on superannuation from BSNL. The applicants have not given any option to receive benefits for the service rendered under the Central Government in accordance with the orders issued by the Central Government. Moreover, the explanation only makes it clear that the amount of pension in respect of the absorbed employee on retirement from public sector undertaking shall be calculated in the same way as calculated in case of a Central Government servant retiring or dying on the same day. The respondents in their reply statement submitted that Annexure A5 OM is OP (CAT) NO. 60 OF 2020 -12- 2025:KER:15196 meant for Central Government CDA pensioners and pro-rata pension optee of BSNL absorbees drawing pension on CDA pattern for Government service period only and not for combined service pension optee BSNL IDA pensioners like the applicants. This fact has not been denied by the applicants by filing any rejoinder."
6. The aforementioned findings in our considered view are not sustainable in the eyes of law for the reason that it failed to notice the condition Nos.4 and 12 of the Office Memorandum dated 12.05.2017. It is pertinent to mention here that the respondents had emphatically relied upon the Office Memorandum dated 04.08.2016 Annexure A4 regarding the implementation of Government decisions on the recommendations of the 7th Central Pay Commission ie., Revision of pension of pre-2016 pensioners/family pensioners etc. Clause 7 of the aforementioned Office Memorandum deals with the pension, the same reads as under:
OP (CAT) NO. 60 OF 2020 -13-2025:KER:15196 "7. The cases of Central Government employees who have been permanently absorbed in public sector undertakings/autonomous bodies will be regulated as follows:-
(a) PENSION Where the Government servants on permanent absorption in public sector undertakings/autonomous bodies continue to draw pension separately from the Government, the pension of such absorbees will be updated in terms of these orders. In cases where the Government servants have drawn one time lump sum terminal benefits equal to 100% of their pensions and have become entitled to the restoration of one-third commuted portion of pension as per the instructions issued by this Department from time to time, their cases will not be covered by these orders. Orders for regulating pension of such pensioners will be issued separately.
(b) FAMILY PENSION In cases where, on permanent absorption in public sector undertakings/autonomous bodies, the terms of absorption and/or the rules permit grant of family pension under the CCS (Pension) Rules, 1972 or the corresponding rules applicable to Railway employees/members of All OP (CAT) NO. 60 OF 2020 -14- 2025:KER:15196 India Services, the family pension being drawn by family pensioners will be updated in accordance with these orders."
(emphasis supplied) It was urged that Ext.A5 was in continuation of the aforementioned guideline, i.e., to be read in conjunction and not disjointly.
7. Mr.R.Sreeraj, learned counsel appearing on behalf of the petitioners submitted that learned tribunal failed to address the issue raised particularly that similar benefits was being accorded to the pensioners on recommendation of the 6th Central Pay Commission in the manner of 50% of the pension by calculating the formula as they had also opted for combined services. None of the conditions in the letter Annexure A5 takes away the claim by the retirees who had opted for combined services benefits. Our attention has been drawn to each and every condition noted in the letter Annexure A5.
OP (CAT) NO. 60 OF 2020 -15-2025:KER:15196
8. On the other hand, Sri.T.C.Krishna, learned Deputy Solicitor General (in charge) appearing on behalf of the Union of India and Smt.K.R.Krishnakumari, learned Standing Counsel appearing on behalf of the BSNL countered the aforementioned arguments and submitted that pension had already been defined in the letter Annexure A4 in paragraph No.7 therein. The applicant do not fall into that category as they have been drawing the IDA pay scale, whereas the benefit accorded was of the CDA pay scale.
9. We have heard learned counsel for the parties and appraised the paper book.
10. The contents of letter Annexure A5 is required to be extracted in complete. The same reads as under:
"Sub:- Implementation of Government's decision on the recommendations of the Seventh Central Pay Commission - Revision of pension of pre-2016 pensioners/family OP (CAT) NO. 60 OF 2020 -16- 2025:KER:15196 pensioners, etc. The undersigned is directed to say that the 7th Central Pay Commission (7th CPC), in its Report, recommended two formulations for revision of pension of pre2016 pensioners. A Resolution No. 38/37/2016-P&PW (A) dated 04.08.2016 was issued by this Department indicating the decisions taken by the Government on the various recommendations of the 7th CPC on pensionary matters.
2. Based on the decisions taken by the Government on the recommendations of the 7th CPC, orders for revision of pension of pre-2016 pensioners/family pensioners in accordance with second Formulation were issued vide this Department's OM No. 38/37/2016-P&PW (A) (ii) dated 04.08.2016. It was provided in this O.M. that the revised pension/family pension w.e.f. 1.1.2016 of pre-2016 pensioners/family pensioners shall be determined by multiplying the pension/family pension as had been fixed at the time of implementation of the recommendations of the 6th CPC, by 2.57.
3. In accordance with the decision mentioned in this Department's Resolution No. 38/37/2016-P&PW (A) dated 04.08.2016 and OM No. 38/37/2016-P&PW(A) (ii) dated 04.08.2016, OP (CAT) NO. 60 OF 2020 -17- 2025:KER:15196 the feasibility of the first option recommended by 7th CPC has been examined by a Committee headed by Secretary, Department of Pension & Pensioners' Welfare.
4. The aforesaid Committee has submitted its Report and the recommendations made by the Committee have been considered by the Government. Accordingly, it has been decided that the revised pension/family pension w.e.f. 01.01.2016 in respect of all Central civil pensioners/family pensioners, including CAPF's, who retired/died prior to 01.01.2016, may be revised by notionally fixing their pay in the pay matrix recommended by the 7th CPC in the level corresponding to the pay in the pay scale/pay band and grade pay at which they retired/died. This will be done by notional pay fixation under each intervening Pay Commission based on the Formula for revision of pay. While fixing pay on notional basis, the pay fixation formulae approved by the Government and other relevant instructions on the subject in force at the relevant time shall be strictly followed. 50% of the notional pay as on 01.01.2016 shall be the revised pension and 30% of this notional pay shall be the revised family pension w.e.f. 1.1.2016 as per the first Formulation. In the case of family pensioners who were entitled to OP (CAT) NO. 60 OF 2020 -18- 2025:KER:15196 family pension at enhanced rate, the revised family pension shall be 50% of the notional pay as on 01.01.2016 and shall be payable till the period up to which family pension at enhanced rate is admissible as per rules. The amount of revised pension/family pension so arrived at shall be rounded off to next higher rupee.
5. It has also been decided that higher of the two Formulations i.e. the pension/family pension already revised in accordance with this Department's OM No. 38/37/2016-P&PW(A) (ii) dated 04.08.2016 or the revised pension/family pension as worked out in accordance with para 4 above, shall be granted to pre-2016 central civil pensioners as revised pension/family pension w.e.f. 01.01.2016. In cases where pension/family pension being paid w.e.f. 1.1.2016 in accordance with this Department's OM No. 38/37/2016-P&PW(A) (ii) dated 04.08.2016 happens to be more than pension/family pension as worked out in accordance with para 4 above, the pension/family pension already being paid shall be treated as revised pension/family pension w.e.f. 1.1.2016.
6. Instructions were issued vide this Department's OM No. 45/86/97 -P&PW(A) (iii) dated 10.02.1998 for revision of pension/ family OP (CAT) NO. 60 OF 2020 -19- 2025:KER:15196 pension in respect of Government servants who retired or died before 01.01.1986, by notional fixation of their pay in the scale of pay introduced with effect from 01.01.1986. The notional pay so worked out as on 01.01.1986 was treated as average emoluments/last pay for the purpose of calculation of notional pension/family pension as on 01.01.1986. The notional pension/family pension so arrived at was further revised with effect from 01.01.1996 and was paid in accordance with the instructions issued for revision of pension/family pension of pre-1996 pensioners/family pensioners in implementation of the recommendations of the 5th Central Pay Commission.
7. Accordingly, for the purpose of calculation of notional pay w.e.f. 1.1.2016 of those Government servants who retired or died before 01.01.1986, the pay scale and the notional pay as on 1.1.1986, as arrived at in terms of the instructions issued vide this Department's OM 45/86/97-P&PW(A) dated 10.02.1998, will be treated as the pay scale and the pay of the concerned Government servant as on 1.1.1986. In the case of those Government servants who retired or died on or after 01.01.1986 but before 1.1.2016, the actual pay OP (CAT) NO. 60 OF 2020 -20- 2025:KER:15196 and the pay scale from which they retired or died would be taken into consideration for the purpose of calculation of the notional pay as on 1.1.2016 in accordance with para 4 above.
8. The minimum pension with effect from 01.01.2016 will be Rs. 9000/- per month (excluding the element of additional pension to old pensioners). The upper ceiling on pension/family pension will be 50% and 30% respectively of the highest pay in the Government (The highest pay in the Government is Rs. 2,50,000 with effect from 01.01.2016).
9. The pension/family pension as worked out in accordance with provisions of Para 4 and 5 above shall be treated as 'Basic Pension' with effect from 01.01.2016. The revised pension/family pension includes dearness relief sanctioned from 1.1.2016 and shall qualify for grant of Dearness Relief sanctioned thereafter.
10. The existing instructions regarding regulation of dearness relief to employed/re- employed pensioners/family pensioners, as contained in Department of Pension & Pensioners Welfare O.M. No. 45/73/97-P&PW(G) dated 02.07.1999, as amended from time to OP (CAT) NO. 60 OF 2020 -21- 2025:KER:15196 time, shall continue to apply.
11. These orders would not be applicable for the purpose of revision of pension of those pensioners who were drawing compulsory retirement pension under Rule 40 of the CCS (Pension) Rules or compassionate allowance under Rule 41 of the CCS (Pension) Rules. The pensioners in these categories would continue to be entitled to revised pension in accordance with the instructions contained in this Department's O.M. No. 38/37/2016- P&PW(A)(ii) dated 4.8.2016.
12. The pension of the pensioners who are drawing monthly pension from the Government on permanent absorption in public sector undertakings/autonomous bodies will also be revised in accordance with these orders. However, separate orders will be issued for revision of pension of those pensioners who had earlier drawn one time lump sum terminal benefits on absorption in public sector undertakings, etc. and are drawing one-third restored pension as per the instructions issued by this Department from time to time.
13. In cases where, on permanent absorption in public sector undertakings/autonomous bodies, the terms of OP (CAT) NO. 60 OF 2020 -22- 2025:KER:15196 absorption and/or the rules permit grant of family pension under the CCS (Pension) Rules, 1972 or the corresponding rules applicable to Railway employees/members of All India Services, the family pension being drawn by family pensioners will be updated in accordance with these orders.
14. Since the consolidated pension will be inclusive of commuted portion of pension, if any, the commuted portion will be deducted from the said amount while making monthly disbursements.
15. The quantum of age-related pension/family pension available to the old pensioners/ family pensioners shall continue to be as follows:-
Age of pensioner/familly Additional quantum of pensioner pension From 80 Years to less than 85 20% of revised basic years pension/family pension From 85 Years to less than 90 30% of revised basic years pension/family pension From 90 Years to less than 95 40% of revised basic years pension/family pension From 95 Years to less than 50% of revised basic 100 years pension/family pension 100 Years or more 100% of revised basic pension/family pension OP (CAT) NO. 60 OF 2020 -23- 2025:KER:15196 The amount of additional pension will be shown distinctly in the pension payment order. For example, in case where a pensioner is more than 80 years of age and his/her revised pension is Rs.10,000 pm, the pension will be shown as
(i).Basic pension=Rs.10,000 and (ii) Additional pension = Rs.2,000 pm. The pension on his/her attaining the age of 85 years will be shown as
(i).Basic Pension = Rs.10,000 and (ii) additional pension = Rs.3,000 pm. Dearness relief will be admissible on the additional pension available to the old pensioners also.
16. A few examples of calculation of pension/family pension in the manner prescribed above are given in Annexure-I to this O.M.
17. No arrears on account of revision of Pension/Family pension on notional fixation of pay will be admissible for the period prior to 1.1.2016. The arrears on account of revision of pension/family pension in terms of these orders would be admissible with effect from 01.01.2016. For calculation of arrears becoming due on the revision of pension/ family pension on the basis of this O.M., the arrears of pension and the revised pension/family pension already paid on revision of pension/family pension in accordance with the instructions contained in OP (CAT) NO. 60 OF 2020 -24- 2025:KER:15196 this Department's OM No. 38/37/2016-P&PW(A)
(ii) dated 04.08.2016 shall be adjusted.
18. It shall be the responsibility of the Head of Department and Pay and Accounts Office attached to that office from which the Government servant had retired or was working last before his death to revise the pension/ family pension of pre - 2016 pensioners/ family pensioners with effect from 01.01.2016 in accordance with these orders and to issue a revised pension payment authority. The Pension Sanctioning Authority would impress upon the concerned Head of Office for fixation of pay on notional basis at the earliest and issue revised authority at the earliest. The revised authority will be issued under the existing PPO number and would travel to the Pension Disbursing Authority through the same channel through which the original PPO had travelled.
19. These orders shall apply to all pensioners/family pensioners who were drawing pension/family pension before 1.1.2016 under the Central Civil Services (Pension) Rules, 1972, and the corresponding rules applicable to Railway pensioners and pensioners of All India Services, including officers of the Indian Civil Service retired from service on or after 1.1.1973. A pensioner/family pensioner who OP (CAT) NO. 60 OF 2020 -25- 2025:KER:15196 became entitled to pension/family pension with effect from 01.01.2016 consequent on retirement/death of Government servant on 31.12.2015, would also be covered by these orders. Separate orders will be issued by the Ministry of Defence in regard to Armed Forces pensioners/family pensioners.
20. These orders do not apply to retired High Court and Supreme Court Judges and other Constitutional/Statutory Authorities whose pension etc. is governed by separate rules/orders.
21. These orders issue with the concurrence of Ministry of Finance (Department of Expenditure) vide their I.D. No. 30-1/33(c)/2016-IC dated 11.05.2017 and I.D. No. 30-1/33(c)/2016-IC dated 12.05.2017.
22. In their application to the persons belonging to the Indian Audit and Accounts Department, these orders issue in consultation with the Comptroller and Auditor General of India.
23. Ministry of Agriculture etc. are requested to bring the contents of these orders to the notice of Heads of Department/Controller of Accounts, Pay and Accounts Officers, and Attached and Subordinate Offices under them OP (CAT) NO. 60 OF 2020 -26- 2025:KER:15196 on top priority basis. All Ministries/Departments are requested to accord top priority to the work of revision of pension of pre-2016 pensioners/family pensioners and issue the revised Pension Payment Authority in respect of all pre-2016 pensioners." (emphasis supplied)
11. On perusal of the above, it is evident that none of the conditions of the letter have excluded the applicability of the conditions to the IDA or applicability to the CDA pay scale. Concededly, the applicant is a pre-
2016 pay scale retiree. Paragraph No.7 and the explanation of the sub-rule 8 of Rule 37-A are also worth extraction, the same reads as under:
"7. Accordingly, for the purpose of calculation of notional pay w.e.f. 1.1.2016 of those Government servants who retired or died before 01.01.1986, the pay scale and the notional pay as on 1.1.1986, as arrived at in terms of the instructions issued vide this Department's OM 45/86/97-P&PW(A) dated 10.02.1998, will be treated as the pay scale and the pay of the concerned Government servant as on 1.1.1986. In the case of those Government servants who retired or died on or after 01.01.1986 but before OP (CAT) NO. 60 OF 2020 -27- 2025:KER:15196 1.1.2016, the actual pay and the pay scale from which they retired or died would be taken into consideration for the purpose of calculation of the notional pay as on 1.1.2016 in accordance with para 4 above."
"Sub-rule 8 of Rule 37-A:
(8) A permanent Government servant who has been absorbed as an employee of a Public Sector Undertaking and his family shall be eligible for pensionary benefits (including commutation of pension, gratuity, family pension or extraordinary pension) on the basis of combined service rendered by the employee in the Government and in the Public Sector Undertaking in accordance with the formula for calculation of such pensionary benefits as may be in force at the time of his retirement from the Public Sector Undertaking or his death or at his option, to receive benefits for the service rendered under the Central Government in accordance with the orders issued by the Central Government.
Explanation - The amount of pension or family pension in respect of the absorbed employee on retirement from the Public Sector Undertaking or on death shall be calculated in the same way as calculated in the case of a Central OP (CAT) NO. 60 OF 2020 -28- 2025:KER:15196 Government servant retiring or dying on the same day."
12. On cumulative reading of the Rule as well as paragraph No.7 of Annexure A5 Office Memorandum, it is evident that the benefit of 50% of the notional pay on the basis of the recommendation of the 7th Central Pay Commission revising the pay scales including the pensions have not explicitly excluded the retirees, who were drawing the IDA pay scales.
13. From the tenor and mode of the finding, extracted above of the tribunal it is evident that none of the aforementioned conditions particularly condition Nos.4 and 12 (emphasis supplied) have been taken into consideration.
We are of the view that it is a fit case where interference is required. Accordingly, judgment of the Central Administrative Tribunal is set aside. O.A. is allowed. Consequently, O.P.(CAT) stands allowed.
Respondents are directed to grant relief in terms of OP (CAT) NO. 60 OF 2020 -29- 2025:KER:15196 Annexure A5 to the petitioner No.2/applicant, who is a pre- 2016 pensioner, within a period of two months from the date of receipt of certified copy of the judgment.
Sd/-
AMIT RAWAL JUDGE Sd/-
K. V. JAYAKUMAR JUDGE vv OP (CAT) NO. 60 OF 2020 -30- 2025:KER:15196 APPENDIX OF OP (CAT) 60/2020 PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF THE DEPARTMENT OF PENSION AND PENSIONER'S WELFARE OM F.NO.38/37/08-P & PW(A)DATED 10.12.201 ANNEXURE A2 TRUE COPY OF THE DEPARTMENT OF TELECOM LETTER NO.40-31/2008-PEN(T)DATED 16.8.2010.
ANNEXURE A3 TRUE COPY OF THE DEPARTMENT OF PENSION & PENSIONER'S WELFARE RESOLUTION NO.38/37/2016-P * PW(A) DATED 4.8.2016 ANNEXURE A4 TRUE COPY OF THE DEPARTMENT OF PENSION & PENSIONER'S WELFARE OM NO.38/37/2016-P&PW(A)(ii) DATED 4.8.2016 ANNEXURE A5 TRUE COPY OF THE DEPARTMENT OF PENSION & PENSIONER'S WERLFARE OM NO.38/37/2016-P&PW(A) DATED 12.5.2017 ANNEXURE A6 TRUE COPY OF THE REPRESENTATION DATED 23.6.2017 SUBMITTED BY THE 1ST APPLICANT ASSOCIATION TO THE 1ST RESPONDENT ANNEXURE R1 TRUE COPY OF RULE 37-A OF CCS(PENSION)RULES,1972 ANNEXURE R2 TRUE COPY OF THE OM NO.40-31/2008- PEN(T)DATED 16.3.2017.
EXHIBIT P1 TRUE COPY OF THE FINAL ORDER DATED 30.10.2019 IN OA 346/2018 ON THE FILE OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH.
OP (CAT) NO. 60 OF 2020 -31-2025:KER:15196 EXHIBIT P2 TRUE COPY OF THE ORIGINAL APPLICATION NO.346/2018 ON THE FILE OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH.
EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS 1 & 3 TO 5 I 0A 346/2018 ON THE FILE OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH.