Central Administrative Tribunal - Delhi
Sh. B.T. Manglani vs Delhi Development Authority on 9 May, 2012
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-173/2009
MA-2225/2011
New Delhi, this the 9th day of May, 2012
Honble Dr. Veena Chhotray, Member (A)
Sh. B.T. Manglani,
S/o Sh. Tikam Das,
R/o 169, Kailash Hills,
New Delhi-110065. . Applicant
(through Sh. Padma Kumar S. with Sh. R.A. Sharma and Sh. K.K. Sharma, Advocate)
Versus
1. Delhi Development Authority
Through its Vice-Chairman,
Vikas Sadan (B-Block),
Near INA, New Delhi-110023.
2. Vice-Chairman,
Delhi Development Authority,
Vikas Sadan (B-Block),
Near INA, New Delhi-110023. .. Respondents
(through Sh. Karunesh Tandon, Advocate)
O R D E R
The OA-173/2009 had been allowed vide the Tribunals order dated 03.09.2009. However, on a challenge through the W.P.(C) No. 3274/2010, vide the Delhi High Courts order dated 30.03.2011 the aforesaid order of the Tribunal has been set aside. Reviving the O.A., it has been remanded for fresh adjudication on merit in light of the observations made in the High Courts order.
2. The applicant superannuated as a Superintending Engineer (SE) under the DDA on 30.09.1995. At the time of the retirement, he was in the pay scale of Rs. 3700-5000/-, replaced after the Fifth CPC as Rs.12000-16500/-. His pension was fixed accordingly. The applicant, however, has been agitating claims for re-fixation of pension on the basis of certain recommendations by the Fifth CPC and consequent decisions thereafter. The claim of the applicant is for revision of pension treating the last pay drawn in the scale of Rs.14300-18300/- w.e.f. 01.01.1996. His representation was last rejected vide the DDAs impugned order dated 22.04.2005, the relevant extracts are reproduced below:-
Sub : Re-fixation of pension to retire SEs DD in the revised pay Scale of Rs.14300-18300/- w.e.f. 1.1.96.
Sir, This is with reference to your letter dt. 1.4.05 on the subject mentioned above, I am directed to intimate you that the approv-al from the Deptt. of Expenditure, Ministry of Finance to the proposal to regularize the grant higher pay scale of Rs.14300-18300/- to the SE(C) in DDA w.e.f. 1.1.96 as functional grade subject to fulfillment of other eligibility conditions as provided in D.O.P.Ts OM No. 22/I/2000-CRD dated 6.6.2000 is not applicable in your case. In view of the fact that you were retired from the services of DDA on 30.9.95 whereas the said approval is effective w.e.f. 1.1.96.
3. Through the instant O.A. the applicant seeks by way of relief quashing the above impugned order along with the following directions:-
8(b) Direct the respondents to grant the applicant, revised pension on the basis of the grade of Rs.14300-18300/- w.e.f. 1.1.1996 as in the case of similarly situated Superintending Engineers of the C.P.W.D. with all other consequential benefits including arrears of pension etc. Additionally, directions for payment of interest as per rules, and costs of litigation besides passing any other and further order deemed fit under the circumstances have been prayed.
4. After the remand an additional-affidavit dated 26.11.2011 was filed on behalf of the applicant followed by a reply to the same by the respondents vide their additional-affidavit dated 09.04.2012. The matter has been reheard by us. The applicant would be represented by the learned counsels Sh. Padma Kumar S., Sh. R.A. Sharma and Sh. K.K. Sharma; the respondents by the learned counsel Sh. Karunesh Tandon.
5. The brief facts of the case are summed up below:-
5.1 The applicant, appointed initially in the year 1961 as a Junior Engineer (JE), and promoted as an Assistant Engineer (AE) in 1968, had been promoted as an Executive Engineer (EE) in November, 1979. He was further promoted as a Superintending Engineer (SE) in November, 1993. From his promotion as EE the applicant was in the Group-A service. He retired on superannuation on 30.09.1995.
5.2 As an SE the applicant was in the pay scale of Rs. 3700-5000/- (pre Vth CPC). The fixation of his pension was done accordingly. W.e.f. 01.01.1996. This was taking the revised pay scale as Rs.12000-16500/-. The applicant, however, was not satisfied with this fixation of pension. According to him his pension should have been fixed treating his last pay drawn in the scale Rs.14300-18300/- w.e.f. 01.01.1996. For this purpose the applicant was relying upon the Vth CPC recommendation (para-50.45) regarding a higher functional scale of Rs.4500-5700/revised scale Rs.14300-18300/- for the SEs on completion of minimum13 years of service in Group-A. As this recommendation had been accepted by the Government as well as adopted for the DDA; the main contention of the applicant was that since by the time of his superannuation he had rendered more than 13 years service in Group-A, he was entitled for fixation of pension on the basis of the higher scale.
5.3 The applicant made a number of representations with a request for revision of his pension. The O.A. mentions regarding the first representation dated 10.12.1999 having been rejected by the DDAs letter dated 24.03.2000 (Annex A-9). It was stated in the rejection letter that the benefit of the higher scale was not to be available to ex-SEs who had retired prior to release of the scale which was effective from 01.01.1996. The applicant, however, persisted and continued to make more representations. In his representation dated 04.05.2000 (page-45 of the paperbook) he cited the grant of pension on the basis of the higher scale to two SEs of CPWD who had retired in the year 1987 and 1992 respectively. The Administrative Ministry of Urban Development vide its letter dated 12.02.2001 did not accept this plea on the ground that the DDA was to decide his case in accordance with its own set of rules in force and established principles of cadre management (Annex A-15). The matter was agitated by the applicant before the Public Lok Adalat-one of the DDA. The Presiding Officer thereof vide his order dated 18.03.2003 arrived at certain findings favouring the case of the applicant.
As the applicant continued with his efforts, on reference by the DDA to the Ministry of Urban Development; the latter vide its letter dated 06.12.2004 clarified that the grant of higher pay scale to the SEs in the DDA w.e.f. 01.01.1996 as a functional grade was subject to fulfillment of other eligibility conditions as per the DoP&T O.M. 06.06.2000. The DDA was advised to re-examine the representation of the applicant in the light of the above decision (Annex A-17). As a sequel, the applicants letter dated 01.04.2005 was again examined by the DDA and rejected vide the order dated 22.04.2005, extracted above and the subject of challenge in the present O.A. This has occasioned the present O.A.
6. Before stating the respective contentions, it would be apt to dwell on the relevant recommendations by the Vth CPC and the decisions by the GOI as well as the DDA.
6.1 The Vth CPC in its recommendations in respect of the CPWD had upheld the general principle of uniform pay scales for Group-A Central Services, both Technical and Non-Technical (para-50.44). However, in case of SEs an exception to this general principle was made.
The Pay Commission had been seized with the historical parity of pay scales granted to the Superintending Engineers and the Conservators of Forests in the Second and the Third CPCs. The same, however, got disrupted between the Third and the Fourth CPC when the latter was granted a better deal than the SEs. This was now sought to be corrected by recommending a special dispensation for the SEs, subject of course to certain riders. The relevant extracts from Para 50.45 are reproduced as here under:-
Between the Third and Fourth CPCs, there was n upgradation of the first grade for CFs to Rs.1800-2000. Subsequently, the Fourth CPC merged the scales of Rs. 1800-2000 and the Selection Grade of Rs.2000-2250 and gave CFs the single functional scale of Rs.4500-5700. The same treatment in spirit was unfortunately not accorded to the SEs who were given a JAG of Rs.3700-5000 and an NFSG of Rs.4500-5700. Taking into account the significant role of engineering services in the nation-building process and the fact that the promotion prospects in engineering cadres are rather bleak, we recommend that the NFSG of Rs.4500-5700 should be converted into a single functional scale for Superintending Engineers and the scale of Rs.3700-5000 should instead be the non-functional JAG for Exe.Engineers. However, in order to avoid too fast a rate of promotion in certain cadres to this grade, it is further recommended that promotions to the scale of Rs.4500-5700 would be permitted only on completion of 13 years of service in Group A. Although the above recommendation is being made in the context of CPWD engineers, it is clarified that this dispersion will be available to all Engineering cadres in the Government. (emphasis supplied) The Vth CPC pay scales were implemented in the GOI vide the CCS (Revised Pay) Rules, 1997. In case of DDA the same was done vide the Authorities Resolution and Orders issued in the year 1997.
6.2 The Ministry of Urban Development, the Administrative Ministry in this case, vide its letter dated 11.11.1999 communicated approval of the Government for grant of pay scale of Rs. 14300-18300/- to the Superintending Engineers after completion of 13 years of Group-A service. This was to be effective from 01.01.1996. The follow up Office Order was issued up by the DDA as dated 01.12.1999 (Annex A-7 and A-8).
6.3 Even though the decision in principle to implement the recommendations regarding the pay scales for SEs and the EEs as per the recommendation of the Vth CPC (Para-50.45) both for the Government as well as for the DDA were taken much earlier in point of time, their operational directions were issued subsequently. In this context, the DoP&T OMs dated 06.06.2000 and 20.12.2000 are relevant.
6.4 The DoP&T O.M. No. 22/1/2000-CRD dated 06.06.2000 was issued to prescribe the detailed guidelines to operationalize the aforesaid recommendations of the Vth CPC in respect of the pay scales of the posts of the SEs and EEs and equivalent in the organized Group-A Engineering Services. The O.M. had dealt with guidelines both in respect of conversion of the non-functional pay scale (pre-revised Rs.4500-5700/-/revised Rs. 14300-18300/-) into a functional grade for the SEs and the promotions in the said scale, as well as the pay scale (pre-revised Rs.3700-5000/- revised to Rs.12000-16500/-) now recommended as the non-functional grade for EEs.
Para-2 of this O.M. clearly stated about the prospective effect of the scales in order to fulfill the pre-requisites stipulated in the revised pay rules like cadre restructuring and redistribution of posts etc. (it is therefore implicit that such scales will necessarily have only prospective effect and the normal replacement scales will be applicable to the posts concerned until the pre-requisites are fulfilled.) Para-3(a) laid down the stipulated conditions prescribed as the pre-requisites before grant of this grade: .Placement of personnel in this functional grade will, however, be subject to actual availability of vacancies in the grade. This shall be permitted only on completion of at least thirteen years of regular service in Group A and the prescribed regular service of four years in the scale of pay of Rs.12000-16500, which will henceforth be the non-functional second grade for Executive Engineers and equivalent. Para-3(e) made it clear that the placement in the functional grade of Rs.14300-18300/- was to be through the process of selection by merit subject to actual availability of the vacancies in the grade. This was distinguished from the prescription of the placement of EEs in the non-functional grade of Rs.12000-16500/- which was to be done as per suitability.
Para-4 stated that the higher eligibility criteria of 13 years of regular Grou-A service now being prescribed for placement in the functional scale of Rs.14300-18300/-, did not involve assumption of higher responsibilities. The date from which the placement could be done was also elaborated:-
..In other words, in the case of regular incumbents of these posts (Superintending Engineer), who had completed the prescribed qualifying service of thirteen years on or before January 1,1996, they may be placed in the scale of Rs. 14300-18300 from that date. In the case of other regular incumbents of these posts, who fulfill the qualifying service on a later date, they should be appointed to the scale of Rs.14300-18300 only from the date on which they complete thirteen years of regular service in Group A. 6.4.1 After the detailed norms prescribed vide the DoP&T O.M. 06.06.2000 for grant of revised pay scales in question, on receipt of various references and representations pleading for reconsideration of certain conditions stipulated in the aforesaid O.M., the matter was re-examined in consultation with the Department of Expenditure. Clarifications and modifications were issued vide the DoP&T No. 22/1/2000-CRD dated 20.12.2000 (Annex A-13).
In respect of paragraph-2 of the O.M. 06.06.2000, it was now modified that for implementation of these recommendations restructuring of the Group-A cadres would be necessary.
Further, vide No. (ii) it was clarified, The conditions stipulated in Paragraph-3 (refers to the DoP&T O.M. 06.06.2000) will be prospective in nature, and will as such be effective from the date of the notification of the revised service/recruitment rules. The detailed stipulations in sub-paragraphs of para-3 were also modified. Sub-para 3(a) relevant in the context of the newly recommended higher functional grade for the SEs was now modified as The functional grade of Rs.14300-18300 shall be applicable to the posts of Superintending Engineers and equivalent. As the eligibility condition, completion of at least 9 years regular service in Executives grade including the service rendered in NFSG was prescribed. The same being subject to availability of vacancies was reiterated.
Para-4 of the DoP&T O.M. dated 06.06.2000 was further clarified in respect of the specification of the date from which the placements in the functional grades could be effected as ..In other words, in the case of regular incumbents of these posts (Superintending Engineer), who had completed the prescribed qualifying service of thirteen years on or before January 1,1996, they may be placed in the scale of Rs. 14300-18300 from that date. (January 1, 1996) In the case of other regular incumbents of these posts, who fulfill the qualifying service on a later date, they should be appointed to the scale of Rs.14300-18300 only from the date on which they complete thirteen years of regular service in Group A. Their placement in the scale will be further subject to the condition that they had been promoted functionally to the posts of Superintending Engineer and equivalent against vacancies and after observing the prescribed selection procedure. (emphasis supplied) 6.5 The Ministry of Urban Development vide its letter dated 06.12.2004 communicated to the DDA the approval of the Ministry of Finance to regularize the grant of higher pay grade of Rs.14800-18300 to the SEs in the DDA w.e.f. 01.01.1996 as functional grade. It was specified that this was subject to fulfillment of other eligibility conditions as provided in the DoP&T No. 25/5/97-EC II/EC-I dated 06.06.2000 (Annex A-17). Incidentally, in the same letter the DDA was also requested to examine the representation of the applicant for refixation of his pension in the above said scale w.e.f. 01.01.1996 in the light of the above decision.
6.6 Certain general Circulars issued by the GOI after the decision on the Vth CPC recommendation regarding fixation of pension of the pre 01.01.1996 retirees have also figured in the present controversy. Two circulars referred in this context are the Department of Pension & Pensioners Welfare GOI Circular No. 45/10/98-P&PW(A) dated 17.12.1998. The instructions relied upon by the applicant in furtherance of his claim are reproduced below in the following extracts from this circular:-
The president is now pleased to decide that w.e.f. 1.1.1996, pension of all pensioners irrespective of their date of retirement shall not be less than 50% of the minimum pay in the revised scale of pay introduced w.e.f. 1.1.1996 of the post last held by the pensioner. However, the existing provisions in the rules governing qualifying service and minimum pension shall continue to be operative.. (emphasis supplied) On 11.05.2001 the Department of Pension, GOI issued another Office Memorandum No. 45/56/97-P&PW(A)(pt.). This pertained to clarifications regarding post/scale of pay held by the retired government servant in the context of implementation of the Government s decision on the Vth CPC recommendation. Referring to the earlier O.M. dated 17.12.1998 the following clarifications were issued:-
In the course of implementation of the above order, clarifications have been sought by Ministries/Departments of Government of India about the actual connotation of the post last held by the pensioner at the time of his/her superannuation. The second sentence of O.M. dated 17.12.1998 i.e. pension of all pensioners irrespective of their date of retirement shall not be less than 50% of the minimum pay in the revised scale of pay w.e.f. 1.1.96 of the post last held by the pension, shall mean that pension of all pensioners irrespective of their date of recruitment shall not be less than 50% of the minimum of the corresponding scale as on 1.1.96, or the scale of pay held by the pensioner at the time of superannuation/retirement. (emphasis supplied)
7. As per the remand directions, the fresh adjudication in this OA is to be done in light of the observations made in the High Courts order. The following salient observations had been made :-
7.1 The plea of discrimination qua the two Superintending Engineers of the CPWD who had been granted the benefit of the higher scale despite having superannuated prior to 01.01.1996, and given credence in the earlier order of the Tribunal, had not found favour with the Honble High Court. Para 18 is extracted below :
18. We note that of the various reasons given by the Tribunal against the petitioner, one reason is that the respondent could not be discriminated vis-`-vis the said two persons i.e. Kanakani and C.P. Gupta and this reasoning we nullify for the reason the Tribunal has over looked the fact that said two persons were not the employees of DDA and merely because one department acted wrongly would not justify a mandamus to be issued against another department to likewise act wrongly.
7.2 Para 19 had taken note of the implied stand behind the Tribunals order about the DoP&T OM dated 06.06.2000 having prospective application for the SEs completing 13 years of Group A service after 01.01.1996, but retrospective application for those completing the same prior to 01.01.1996. However, this view as such had not been endorsed by the Honble High Court. On the other hand, it had been found appropriate for the Tribunal to record a finding as to whether the instructions contained in this OM were prospective or retrospective in nature. The subsequent OM by the DOP&T dated 20.12.2000 which unfortunately had not been brought to the notice of the Tribunal was found to have a material bearing on the said aspect of the matter (para 22).
7.3 Likewise, the Tribunals acceptance of the applicants contention regarding the applicability of the DOP&T (pensions department) OM dated 17.12.1998 had not merited favour with the High Court. Vide this OM, it had been prescribed that the pension of all the pensioners, irrespective of their date of retirement was not to be less than 50% of the minimum of the revised scale of pay introduced w.e.f. 01.01.1996 of the post last held by the pensioner. The subsequent OM dated 11.05.2001 providing that the expression post last held by the pensioner occurring in the OM 17.12.1998 was to be read as, last scale of pay held by the pensioner at the time of his superannuation/retirement had been found relevant in the context (para 24). Paras 25-28 had recorded at length the decisions of the Delhi High Court in S.C. Parashars case and of the Madras High Court in Krisnaswamys case taking a different view regarding these two OMs. As per S.C. Parashars case the OM dated 11.05.2001 was not valid as in the guise of a clarification it had retrospectively amended the OM dated 17.12.1998. However, in Krisnaswamys case, subsequently upheld by a detailed order of the Apex Court, both the OMs dated 17.12.1998 and 11.05.2001 were found to be in nature of executive instructions clarifying the basic policy resolution dated 30.09.1997. This was found to be valid in law. In para 29 of the order, the following observations were made by the Honble High Court :-
29. Since neither the Office Memorandum dated 11.05.2001 nor the dictum of law laid down by Supreme Court in K. Krisnaswamys case (supra) was brought to the notice of the Tribunal, the Tribunal has not read the expression post last held by the pensioner occurring in the Office Memorandum 17.12.1998 as last scale of pay held by the pensioner at the time of his retirement/ superannuation as postulated by the Office Memorandum dated 11.05.2001. In such circumstances, the second reason given by the Tribunal in allowing the application filed by the respondent is clearly erroneous. The failure on the part of the respondents to bring to the notice of the Tribunal the OMs dated 20.12.2000 and 02.05.2011 of the DOP&T besides the Supreme Courts ruling in Krisnaswamys case had been adversely commented upon.
8. In support of the claims in the OA, the main contentions on behalf of the applicant are :
8.1 As per the recommendation of the 5th CPC, the single functional scale of Rs.4500-5700/revised as Rs.14300-18300 had been provided for SEs rendering minimum 13 years Group A service. Ground 5.1 avers the objective behind such a recommendation being based on the significant role of Engineering Services in the nation building process and the bleak promotional prospects in the engineering cadres. The rejoinder (para 4.19) highlights that according to the recommendation of the 5th CPC, though this dispensation was made in the context of CPWD engineers, it was to be available to all engineering cadres in the Government. Shri Padma Kumar S., the learned counsel for the applicant would argue about the cut off date for the implementation of the 5th CPC recommendations not being there at the time of superannuation of the applicant. The learned counsel would also argue about the recommendation in question not coming all of a sudden, but in the background of the need for maintenance of historical parity of the Superintending Engineers with the Conservators of Forests.
8.2 As a logical corollary to the contention of the scale of Rs.14300-18300 being taken as the revised scale for the SEs, it has been contended that since the applicant had rendered more than 15 years of Group A service by the time of his retirement; he was entitled for the above higher scale and consequent revised pension w.e.f. 01.01.1996 (para 4.11& Ground 5.2).
8.3 The cut off date of 01.01.1996 for implementation of the scale of Rs.14300-18300 has been averred to be arbitrary. It is submitted that depriving an SE, like the applicant, of the benefit accrued to him for having rendered the requisite length of Group A service, by fixing a cut off date post his retirement; could not be the object of the 5th CPC recommendations (Ground 5.4).
8.4 Taking the above argument further, it has been submitted that the date of retirement was not a rational criterion to determine the applicability of the higher grade of Rs.14300-18300 and revised pension based on the said grade. Such a criterion is stated to be arbitrary, discriminatory besides being unconstitutional as it bore no nexus to the object sought to be achieved. By virtue of such an interpretation, the respondents would also be alleged to have brought into existence two classes of pensioners, which is not in consonance with the law. Ground 5.5 mentions that it was not open to the respondents to deny the applicant the benefit of GOI orders dated 17.12.1998 and 06.06.2000 merely on the basis of the date of retirement. The general law about pension not being a gratuitous payment but a legal right earned based on the length of service; as well as acceptance of pension as a measure of socio economic justice in the fall of life, had also been evoked.
8.5 In the rejoinder, the above argument was further built up. It was submitted that the OMs dated 27.10.1997 as well as dated 17.12.1998 (both these OMs were on the general subject of regulation of pension post 5th CPC) no where envisaged that the employees retiring prior to 01.01.1996 were not to be considered for the liberalized pension based on the 5th CPC recommendations. Contending about there being no discrimination between pre and post 1996 retirees in the matter of enhanced pension, it was argued that the only impact of making the same applicable from 01.01.1996 meant that the benefits of the enhanced pension were to be paid from 01.01.1996 and no arrears prior to the earlier period were admissible.
8.6 Grant of revised pension based on the higher scale of Rs.14300-18300 to two Superintending Engineers of CPWD rendering 13 years of Group A service and retiring much before 1996, was also cited by way of validation of the claims of the applicant (para 4.19).
8.7 As per the applicant, the fixation of his pension by treating the scale of Rs.12000-16500 as the revised pay scale for the SEs, instead of the higher scale of Rs.14300-18300 was arbitrary and had not been corrected despite several representations.
8.8 In course of the oral submissions Shri Padma Kumar S., the applicants learned counsel would reiterate the aforesaid contentions. Further, in the context of the observations of the Honble High Court, the learned counsel would also highlight: (i) The 20.12.2000 OM of the DOP&T does not mention anything about retirees. (ii) The Rs.14300-18300 scale had been accepted by the CPWD. This was the main scale . The DDA also had adopted it. (iii) The 17.12.1998 OM of the Pensions Department prescribes that the pension of all pensioners irrespective of their date of retirement was not to be less than 50% of the minimum in the revised scale of pay introduced w.e.f. 01.01.1996 of the post last held by the pensioner. (iv) The Ministry of Urban Development, with the concurrence of Ministry of Finance, had in the year 2004 given sanction to the DDA of the scale of Rs.14300-18300 for the SEs from 01.01.1996. In the same letter it had also been asked to examine the representation of the applicant accordingly. (v) As regards the Apex Court judgment in Krishnaswamys case, it would be submitted that as the Honble Apex Court had had no occasion to consider the DOP&T OMs 06.06.2000 and 20.12.2000; the same were not relevant in the present case. (vi) As regards the observations of the Honble High Court on the subject of grant of benefit of enhanced pension to two pre 1996 CPWD retiree SEs, the contention would be that the same was to be treated as a general observation rather than after having examined the issue on merit. It would also be submitted that the CPWD had no where taken the stand of the said benefit having been given wrongly.
9. The claims in the OA as well as the contentions made on behalf of the applicant have been contested by the respondents. The Counter Affidavit avers that the revised pension of the applicant had been fixed as also the revision made w.e.f. 1.1.1996 correctly. Denying any arbitrariness in this regard, the OA is stated to be without any justified cause of action.
9.1 Shri Karunesh Tandon, the learned counsel for the respondents, would rebut the basic rival contention about the scale of Rs.14300-18300 being the normal replacement scale for the SEs. His submissions would be that prior to the 5th CPC there were two scales for the SEs i.e. Rs.3700-5000 and Rs.4500-7000. Further, the normal replacement scale for SEs would be stated to be Rs.12000-16500, and the higher scale of Rs.14300-18300 recommended as the replacement scale of Rs.4500-7000. To support these factual averments, para-2 of the High Courts Order would also be referred. Shri Tandons argument would be that the normal replacement scale of Rs.12000-16500 for the posts of SEs became operational in the ordinary course w.e.f. 1.1.1996, on implementation of the 5th CPC recommendations. However, the higher scale of Rs.14300-18300 was subject to certain specified conditions stipulated by the Government in this regard vide the DOP&T OMs dated 6.6.2000 and 20.12.2000. As per the learned counsel, the benefit of this special scale was not automatic.
9.2 It would also be argued by the respondents counsel that admittedly the applicant, at the time of his retirement, was in the scale of Rs.3700-5000. Accordingly while fixing the revised pension from 1.1.1996 the basis of the replacement scale of Rs.12000-16500 was taken. The applicant could not claim the higher scale as a matter of right or entitlement. Referring to the DOP&T OM dated 6.6.2000, it would be stated that besides the prescribed length of Group A service, the grant of this special scale was mandatorily to be done through the process of selection by merit subject to availability of vacancies in the grade. The learned counsel would further argue that as per the Ministry of UDs letter dated 6.12.2004 (Annex. A/17), the approval from the Union Finance Ministry for regularization of the higher pay scale to the SEs in DDA was made subject to fulfillment of the eligibility conditions as per the DOP&T OM dated 6.6.2000. Besides, it was to be given effect from 1.1.1996.
The reply to the Additional Affidavit filed on 9.4.2012, in para-F makes the averment, it is, therefore, implicit that such scale will have necessarily the prospective effect and only the normal replacement scales will be applicable to the post concerned unless the pre-requisites are filled. Para (i) refers to the view taken by the Urban Development Ministry in consultation with the Department of Pensioners Welfare about the higher pay scale of the SEs being applicable only for Service Engineers as on 1.1.1996 and thus, the benefit thereof not being available in the case of the applicant.
Reiterating these contentions, the rejection of the case of the applicant vide the impugned order dated 22.4.2005 on the ground of the said scale not being applicable in his case on account of his retirement prior to the date of its being made effective from i.e. 1.1.1996 would be affirmed.
9.3 The respondents have also explained their stand with regard to the general instructions issued on the subject of fixation of pension. The reliance placed on behalf of the applicant on the OM dated 17.12.1998 which provided that w.e.f. 1.1.1996 the pension of all pensioners irrespective of their date of retirement shall not be less than 50% of the minimum pay in the revised scale of pay introduced w.e.f. 1.1.1996 of the post held by the pensioner is stated not to be justified in view of the subsequent clarifications issued vide the Pension Departments OM dated 11.5.2001. By this OM it was clarified that the expression post last held by the pensioner occurring in the OM dated 17.12.1998 should be read as last scale of pay held by the pensioner at the time of his superannuation/retirement.
To reinforce the argument further, the decision of the Apex Court in K.S. Krishna Swamy vs UOI {AIR 2007 SCW 77} would be adverted to. As per the respondents learned counsel, the present case was squarely covered by the decision in this case. He would specifically highlight that dealing with identical issues, the Honble Apex Court had upheld validity of the pension related OMs dated 17.12.1998 and 11.5.2001. Further it was held that the increase on the basis of Pay Commission is in the scale of pay and not of post. The reply to the additional affidavit also refers to the decision of the Full Bench of CAT, Bangalore Bench in case of S.R. Pavana Murthy vs UOI & Ors decided on 19.2.2007, relying upon the Apex Courts aforesaid decision.
9.4 The parity claimed with the CPWD SEs is stated not to be relevant to the present issue. The reliance of the applicant to the grant of pension on the basis of the higher pay scale to S/Shri C.P. Gupta and K.N. Nankani, two SEs of the CPWD, despite their having retired much before 1.1.1996 would be rebutted by the respondents learned counsel. Referring to the detailed averments in their Reply to the Additional Affidavit, Shri Karunesh Tandon would emphasize about the Recruitment Rules and the service conditions of the Engineering Cadre in the DDA and CPWD being not similar at all.
The clarification by the Ministry of Urban Development vide their letter dated 12.2.2001 while responding to the applicants representation - specifically taking such a ground about the DDA being a statutory body and, therefore, being free to decide the representation of the applicant as per its rules and principles of cadre management would also be referred in this context (Annex. A/15).
Further, the decision of the Coordinate Bench of this Tribunal in OA 3288/2010 (Shri Lalit Mohan & Ors vs DDA & Ors) decided on 2.2.2012 would also be referred with the contention that the claims of the Superintending Engineers of the DDA for the higher scale of Rs.14300-18300 had not been allowed taking into account the different RRs for the CPWD and the DDA. As per the learned counsel, the matter had already been clinched in this regard by the Honble High Court vide its observation in para 18 of the remand order in the present case.
10. The material on record and the respective submissions have been considered carefully. Before coming to the validity of the claims being agitated by the applicant, the following two issues would need consideration as per the Honble High Courts directions:-
(i) Whether the instructions contained in the DOP&T OM dated 6.6.2000 read with the OM dated 20.12.2000 were prospective or retrospective in nature?
(ii) The implications of the general Circulars regarding pension vide DOP&T (Pensions Department) OMs dated 17.12.1998 and 11.5.2001, keeping in view the Apex Courts Judgment in Krishnaswamys case.
The view taken in respect of these would have a critical bearing on the controversy involved in respect of the applicants claim.
11. (i) Issue of prospectivity or otherwise of the DOP&T OMs of 2000: It had been mentioned in the DOP&T OM dated 6.6.2000 that the grant of the functional grade to the SEs would involve certain ground work like cadre restructuring, redistribution of posts besides amendment of RRs in some cases. Para 2 of this OM had clearly stated about implicitly such scales necessarily having only prospective effect and the normal replacement scales being applicable to the posts till the prerequisites were fulfilled. This had been reiterated in the subsequent OM of 20.12.2000.
(ii) Placement in this functional grade was subject not only to fulfillment of the qualifying prescribed length of service in Group A but also subject to availability of vacancies in the grade and selection on merit. The latter prescription was distinguishable from the instructions in case of the EEs where their placement in the non-functional grade of Rs.12000-16500 was to be done as per suitability.
(iii) In para 4 of the OM dated 6.6.2000 in respect of the date from which the placement could be done, there was a slight ambiguity, as would be clear from the extracted portion in Para 6.4 above. In cases where the SEs completed the qualifying service of 13 years on or before January 1, 1996, the instruction was that they may be placed in the scale of Rs.14300-18300 from that date.
This, however, was clarified vide the subsequent OM dated 20.12.2000. It clarified that the expression from that date in such cases was to be only January 1, 1996. The relevant extracts have been cited in Para 6.4.1 above.
The consistent view of the respondents both at the level of the Government and the DDA had been about the benefit of the higher scale being applicable only from 1.1.1996, subject to the fulfillment of the eligibility conditions in the DOP&T OM of 6.6.2000, and the same not being applicable to the SEs who had retired prior to 1.1.1996. After considering the relevant DOP&T OMs, I am of the view that the benefits of the special higher scale for the SEs were meant to be prospectively w.e.f. 1.1.1996. No reason is found to take a view different from the one taken by the respondents.
12. Implications of the Pension Circulars - As stated above, these circulars were on the general subject of fixation of Pension after the 5th CPC. The OM dated 17.12.1998 had prescribed about the pension of all the pensioners, irrespective of their date of retirement being not less than 50% of the minimum of the revised scale of pay introduced w.e.f. 1.1.1996. The contentious provision was the same being of the post last held by the pensioner. However, the subsequent OM dated 11.5.2001 had issued the clarification about the expression post last held by the pensioner occurring in the OM dated 17.12.1998 to be read as last scale of pay held by the pensioner at the time of his superannuation/retirement. For the relevant extracts, the foregoing para 6.6. may be referred.
12.1 The aforesaid OMs had come in for consideration of the Apex Court in the case of K.S. Krishnaswamy vs Union of India {2007 AIR SCW 77} decided along with a bunch of other Civil Appeals. This was in the context of agitation of claims of pre-1.1.1996 retirees for fixation of pension after the 5th CPC. Particularly, in Krishnaswamys case, the appellants were SEs who wanted fixation of pension from 1.1.1996 on the basis of the pay scale of Rs.14300-18300 instead of Rs.12000-16500, as per the recommendations in para 50.45 of the 5th CPC recommendations. The relevant paras from this judgment are extracted below:
14. The clarification brought out in the O.M. dated 17.12.1998 and O.M. dated 11.5.2001 is clearly discernible. Whereas O.M. dated 17.12.1998 speaks of the minimum pay in the revised scale of pay w.e.f. 1.1.1996 of the post last held by the pensioner, the O.M. dated 11.5.2001 clarifies it as minimum of the corresponding scale as on 1.1.1996 of the scale of pay held by the pensioner at the time of superannuation / retirement. The clarification brought about in the O.M. dated 11.5.2001 is of the last post held by the pensioner as the last scale of pay held by the pensioner at the time of superannuation / retirement.
15. It is common knowledge that the corresponding increase in any Pay Commission is of the scale of pay and not of the post. 12.2 Considering both the OMs i.e. 17.12.1998 and 11.5.2001 as well as the Apex Courts decision in Krishnaswamys case, the undoubted conclusion will be about the relevant factor for fixation of pension being not the last post held by the pensioner but the last scale of pay at the time of superannuation.
The foremost underlying premise behind the claims of the applicant is the 5th CPC recommendation, viewed in the background and the objective of restoring the historical parity in the pay scales of the SEs with the Conservator of Forests. In its recommendation, the 5th CPC had mentioned only one condition of entitlement i.e. completion of the minimum prescribed length of 13 years Group A service. The applicant claimed such entitlement resting on the logic that since he had completed more than the prescribed length of service in Group A before his superannuation, he was entitled to the benefit of the higher scale. The fact that the 5th CPC recommendations came into effect from 1.1.1996 was tried to be counteracted by contending such a cut off date to be arbitrary and creating two categories of pensioners, while evoking the general law on pension. As an additional plank reliance was placed on the general Pension Circular vide OM dated 17.12.1998 prescribing about the revision of pension being as per the post last held by the pensioner. The two instances of the benefits granted to the pre-1996 retiree CPWD SEs came handy in support of the applicants claim.
13.1 However, the above argument suffers from a number of fallacies.
13.1.1 The well settled principle of law is that recommendations of the Pay Commissions are subject to the acceptance / rejection with modification of the appropriate Government. It is also a well settled principle of law that a policy decision of the Government can be reviewed, altered, modified or supplemented by executive instructions. The recommendations / decisions in principle for the implementation of the 5th CPC recommendation in question are to be read along with the executive instructions for their opertionalization issued by the DOP&T in the year 2000. In view of these conditionalities, the higher functional grade for the SEs could not be granted suo-motto; besides as per these circulars this was to be effective only from 1.1.1996. The attempt on the part of the applicants learned counsel first to disregard these instructions and then seeking to explain them away by specious arguments cannot be tenable.
13.1.2 Even the additional planks would not hold as tenable. As discussed above, the pension circular dated 17.12.1998 cannot be considered in isolation of the subsequent clarificatory OM dated 11.5.2001. Further, this has already been upheld by the Honble Apex Court in Krishnaswamys case that while revision of pension, the relevant factor is not the last post held but the last scale of pay held by the pensioner.
13.1.3 The analogy drawn by the applicant on the two cases cited from the CPWD has been nullified conclusively by the Honble High Court in para 18 of the remand order, by highlighting the distinguishing factor of the employer being different in this case i.e. the DDA and not the Central Government. The respondents stand of the service conditions including the RRs of the Engineering Cadre in these two being different reinforces this point further.
13.2 Undisputedly on the date of his superannuation i.e. 30.9.1995, the applicant was in the pay scale of Rs.3700-5000 prescribed at that time as the Junior Administrative Grade. To make it further clear, the applicant had not been given the benefit of the higher scale of Rs.4500-5700, which at that point of time was a non-functional selection grade for the SEs.
On retirement, the applicants pension was fixed on the basis of the last pay drawn by him. From 1.1.1996 this was taking the revised pay scale of Rs.12000-16500 as the basis. The claim for the higher scale of Rs.14300-18300, which could only be given as per the operational instructions vide the DOP&T OMs of 2000, was not admissible in his case because of his retirement prior to 1.1.1996.
14. To conclude, in pursuance of the remand order, the matter has once again been heard and reexamined thoroughly in the light of the observations and the directions issued by the Honble High Court. The claims of the applicant are not found to be tenable. The OA is dismissed. The parties would bear their own costs.
(Veena Chhotray) Member )A) /vv/pkr/