Central Administrative Tribunal - Delhi
United Forum Of Csir Retired Grp Iv Six ... vs Council Of Scientific & Industrial ... on 12 March, 2024
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O.A. No. 1099/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1099/2022
Order Reserved on: 07.03.2024
Order Pronounced on: 12.03.2024
Hon'ble Mr. Tarun Shridhar, Member (A)
1. United Forum of CSIR Retired
(Grp IV-6) Scientists through its
General Secretary,
Dr. Jugdish Chander Sharma,
C-560/I, Upper Ground Floor,
Road No.5, JVTS Garden,
Chhatarpur Extension,
New Delhi-110074
2. Dr. Jugdish Chander Sharma,
S/o Sh. Daulat Ram Sharma,
C-560/1, Upper Ground Floor,
Road No.5, JVTS Garden,
Chhatarpur Extension,
New Delhi-110074 - Applicants
(By Advocate: Mr. Vaibhav Vutts)
VERSUS
1. Council of Scientific and Industrial Research
Through their Director General,
CSIR, Anusandhan Bhawan,
2, Rafi Marg, New Delhi-110001
2. Ministry of Finance,
Through its Secretary,
Department of Expenditure,
Room No.129-A, North Block,
New Delhi-110001
3. Union of India,
Through Secretary, Department of
Scientific and Industrial Research,
Ministry of Science and Technology,
Government of India, Technology Bhawan,
Mehrauli Road, New Delhi-110016 -Respondents
(By Advocates: Mr. Shashwat Sharma & Mr. Pradeep
Kumar Sharma)
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O.A. No. 1099/2022
ORDER
The applicants are retired Scientists of Council of Scientific and Industrial Research (CSIR). Their grievance as expressed in the present OA is that the benefit of special pay which was being drawn by them during the course of their service, is not being given to them for computing their pension.
2. The applicants had approached this Tribunal in an earlier round of litigation agitating their grievance vide OA No 2497/2021 which was decided on 15.11.2021 with a direction to the respondents to decide the claim of the applicants as outlined in the representation they had furnished and pass a reasoned and speaking order. Pursuant to that, the respondents have passed an order dated 21.01.2022 which is the subject of the present OA.
3. While ventilating their grievance, the applicants seek the following reliefs :-
"a) Direct the Respondents to count Special Pay of Rs. 2000/-granted to the Scientist of Applicant Association before 01.01.2006 and Rs. 4000 granted w.e.f. 01.01.2006 for computing their pension and pensionary/retiral benefit with all benefits along with interest for delay in implementation as has been granted to 96 Scientists in Scientist G/Group IV (6) of CSIR who 3 O.A. No. 1099/2022 were the petitioners in NK Sharma & Ors. V. CSIR & Anr. W.P. (C) 9070/2014 and Scientist G or its equivalent in Defence Research & Development Organization (DRDO) Ministry of Defence, Department of Space or Department of Atomic Energy. Since scientists in NK Sharma (supra) are identically placed as present Applicant and since Scientists G/Group IV (6) of CSIR and Scientist G of DRDO are having same pay scales, same Special Pay and governed by same Pension Rules and are undertaking Scientific research and development in various fields of national endeavor, Scientists in CSIR are also entitled for counting of 'Special Pay' for their pensionary benefits as has been allowed in the case of Scientist G in DRDO. Any official order contrary to counting of Special Pay for Pension and Pensionary Benefits should be set aside keeping in view the orders/directions of Hon'ble Supreme Court in OP Nijhawan CA No. 12040/2018 dated 03.01.2017 and Hon'ble Courts as such orders are unsustainable under law. Further any arbitrary or discriminatory treatment to the Applicant in matters of fixation of pension will be violative of Article 14 & 16 of the Constitution of India and will be against Rules and law on the subject and accordingly set-aside impugned order dated 21.01.2022.
b) Direct the Respondents to provide the same Pension and Pensionary benefits to all the scientist of Scientist G/Group IV(6) of CSIR, whether named or not in any petition, as it is not possible and illogical for every retired Scientist G/Group IV(6) of CSIR to approach the Tribunal individually on same facts and law as this would result in multiple litigations on already position of law.
c) Direct the Respondents to revise Pension Payment Order (PPO) of Applicant and pay arrears and interest of/on Pension and Pensionary benefits along with the consequential benefits to the Applicants after counting of special pay of Rs. 2000/- for those who retired before 01.01.2006 & Rs. 4000/- to those who retired 4 O.A. No. 1099/2022 after 01.01.2006 for their pension and pensionary benefits.
d) Direct respondents to produce relevant records on the subject after adjudication.
e) Grant any other reliefs which Hon'ble Tribunal may deem just and proper keeping in view the facts and circumstances of the case and also that these retired Scientists have served the cause of industrial development of the nation and are in the sunset of their life.
f) Any other direction or directions which Hon'ble Tribunal may deem fit and proper keeping in view the facts and circumstances of the case and the fact that the Applicants are senior citizens."
4. Learned counsel for the applicants, briefly narrating the history and background of the case, submits that the provisions of Fundamental Rules unambiguously state that special pay is to be treated as a part of the pay. He draws specific attention to the definition of pay contained in FR 9(21)(a) which states as under :
"(21) (a) Pay means the amount drawn monthly by a Government servant as-
(i) the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity or to which he is entitled by reason of his position in a cadre; and
(ii) overseas pay, special pay and personal pay;
and
(iii) any other emoluments which may be specially classed as pay by the President.
5O.A. No. 1099/2022
5. There being no ambiguity, the action of the respondents in not including special pay in the total emoluments, defined as pay, is in contravention to the statutory rules, learned counsel argues.
6. He further submits that the action of the respondents in denying the bona fide claim is not sustainable on account of their failure to observe the principle of equity and parity, as discriminatory treatment is being meted out to the applicant because as per their own admission, the respondents have extended this benefit to several other identically placed persons.
7. He further draws attention to the judgment of the Hon'ble Supreme Court in the case of Union of India and Ors. vs. Dr. O.P. Nijhawan and Ors.(2020)14 SCC 430 wherein the Court had categorically held that the order passed by C.A.T. and Hon'ble High Courts that special pay is to be included in pay for the purpose of determining the pensionary entitlements, is correct.
8. There being no ambiguity as far as the rules are concerned, further supported by the innumerable pronouncements of the Tribunals and various Courts, including the Hon'ble Supreme Court, the prayer made in 6 O.A. No. 1099/2022 the OA is no more than the bona fide and legal entitlement of the applicants, denial of which by the respondents amounts to gross injustice, learned counsel adds.
9. Mr. Shashwat Sharma, learned counsel representing CSIR submits that CSIR would be bound by the instructions of the Department of Science and further, the relevant guidelines issued by the Ministry of Finance, Department of Expenditure as also the Department of Pension and Pensioner's Welfare. He draws attention to the notification dated 17.08.2023, issued by the Ministry of Finance, Department of Expenditure on the subject and submits that the respondents cannot go beyond these instructions when determining the entitlement of the pension of the applicants.
10. For the sake of clear understanding of the issue, the said communication is reproduced below verbatim :-
"Ministry of Finance Department of Expenditure EV Branch Sub: Counting of Special Pay of Rs.2000/- before 2006 and Rs.4000/- after 2006 for the purpose of reckoning pensionary benefits to retired scientists of CSIR.
CSIR may please refer to their ID No- 5-1(308)/2015- PD, dated 21.03.2023, on the subject mentioned above.7 O.A. No. 1099/2022
2. In this regard it is stated that this department agrees with the proposal of CSIR for counting of Special Pay of Rs. 2000/- before 2006 and Rs.4000/- after 2006 for the purpose of pensionary benefits to all the eligible retired Scientists of CSIR.
3. As far as the methodology to be adopted for fixation of pension is concerned, it is stated that the methodology as conveyed to DoS may also be adopted in CSIR which is as under:
- Special Pay may not be merged in the last Basic Pay. Once Pension is computed on the basis of last pay drawn, 50% of the quantum of Special Pay as drawn by the employee on the date of retirement (Rs 2000/- and Rs.4000/- as the case may be) may be added to the Pension so fixed. In case of revision of Pension after Pay Commission in terms of respective guidelines of DoPPV, the Special Pay will not be taken into consideration. However, once Pension is revised, 50% of the Special Pay as available to the employee on the date of retirement shall be added to such revised Pension."
4. This has the approval of competent authority (Vijay Kumar Sharma) Under Secretary to the Govt, of India CSIR, [Kind Attn: Shri Mahendra Kumar Gupta, JS(Admn.) I, Anusandhan Bhawan, 2, Rafi Mara. NewDelhi-110001.
D/o Expenditure's I.D. Note No. 1(20)/EV/2017, dated 17.08.2023 Copy to: Shri Chetan Prakash Jain, FA, CSIR"
11. He further argues that the applicants cannot claim the benefit of the judgment of the High Court as argued by the learned counsel for the applicants as the applicants 8 O.A. No. 1099/2022 can be categorized as fence sitters and have approached this Tribunal for their claim at a much-belated stage, that too after they had retired from service.
12. I have put a specific query to the learned counsel for the respondents with respect of the communication dated 17.08.2023 issued by the Department of Expenditure. The said communication states that while special pay may not be merged with the last basic pay, however, 50% of the quantum of special pay drawn by the employee at the time of retirement may be added to the pension so fixed. On the basis of what rule, guidelines or instructions, this advice has been given, has not been specified in the communication.
13. Moreover, whether this communication and the advice contained therein is in accordance with the Fundamental Rules and the various pronouncements of the courts needs to be explained. Even though the respondents may be terming the applicants as fence sitters, could it be a sufficient ground to deny someone his rightful claim.
Further, the order dated 21.01.2022 passed in compliance of earlier orders of this Tribunal after discussing the 9 O.A. No. 1099/2022 background and the history of the case makes the following conclusion :
"In view of the above facts and circumstances, the applicants/ all the retired scientists Gr. IV(6)/Chief Scientists, can be extended the benefit of counting of Special Pay of Rs. 2000/ before 2006 and Rs. 4000/- after 2006 for the purposes of Pensionary Benefits only after the approval of Department of Expenditure, MoF (which has already been approached by CSIR) and not at this stage."
14. The recommendation of DG, CSIR is specific and categorical that the applicants herein can be extended the benefit of grant of special pay for the purpose of pensionary benefits after the approval of the Department of Expenditure, Ministry of Finance.
15. I find that the Department of Expenditure has advised the benefit but only as a halfway measure.
16. Mr. Pradeep Kumar Sharma, learned Sr. Standing Counsel of CSIR sought a short adjournment to obtain appropriate instructions with respect to the queries raised recorded above. However, no clear reply/clarification to the above queries has been submitted before me. All that the learned Senior Central Government Standing Counsel has argued is that a contempt petition on account of the alleged non-compliance of some orders in this matter is pending 10 O.A. No. 1099/2022 before the Hon'ble Supreme Court and accordingly, hearing in this OA be deferred till the said contempt petition is decided. How could the outcome of the contempt petition affect the outcome of the present OA either way is not understood? The contempt is for disobedience and from the explanation given by the learned Senior Central Government Standing Counsel, it is apparent that disobedience is with respect to the relief given to the petitioner therein. Accordingly, I have no doubt in holding that mere pendency of a contempt petition, the subject and contents of which are not known cannot be a ground for me to restrain myself from adjudicating this OA which is pending for nearly two years now.
17. The matters with respect to pay and allowances are to be considered and decided strictly in accordance with the statutory provisions of rules, in the instant matter, the Fundamental Rule 9(21)(a) which has been quoted in one of the preceding paragraphs. The definition of pay does include special pay. The issue has already been adjudicated by this Tribunal in an earlier round and affirmed by the Hon'ble High Court as has been recorded herein before. Merely because the present applicants were not a party in the previous litigation, does not obviate their 11 O.A. No. 1099/2022 right. Moreover, CSIR, the organization of the respondents, is in support of the claim of the applicants but is, however, bound by the directions of the nodal Ministry.
18. I find that the nodal Ministry, i.e., Department of Expenditure, Ministry of Finance, has agreed with the proposal for granting of special pay of Rs.2000/- before 2006 and after 2006 for the purpose of pensionary benefits to all eligible Scientists of CSIR. However, curiously it goes on to prescribe a methodology which is in contravention to the proposal which has been agreed to. The prescription of the Ministry of Finance, Department of Expenditure is that pension is to be computed on the basis of the last pay drawn without merger of special pay with it and once pension has been calculated, 50% of the special pay is to be added to the pension so fixed. There is absolutely no explanation as to how this methodology has been devised and what force of rule supports this.
19. I reiterate that the communication of the Ministry of Finance, Department of Expenditure, states that the proposal for granting special pay for pensionary benefits is agreed to. Once it is agreed to, there cannot be any methodology contrary to such an agreement. 12 O.A. No. 1099/2022
20. In the light of what has been detailed and discussed above, the present Original Application is allowed with a direction to the competent authority amongst the respondents that pension of retired eligible Scientists be re-fixed with effect from the date of their entitlement of such pension by merging the special pay with the last pay drawn. Accordingly, the impugned order dated 21.01.2022 is quashed and set aside.
21. To clarify, the last pay drawn would include pay + special pay for the purpose of retiral dues, including pension, shall also be re-fixed pursuant to these directions and thereafter arrears as would accrue to the eligible Scientists, including the present applicants shall be released in their favour. These directions shall be complied with within a period of 12 weeks from the date of receipt of a certified copy of this order.
22. In the facts and circumstances, I am not awarding any interest to the applicants upon the arrears which would be paid and released to them. However, in the event, release of arrears and other dues is delayed beyond the period of 12 weeks, the applicants shall be at liberty to 13 O.A. No. 1099/2022 seek recourse to an appropriate remedy in accordance with law. There shall be no order as to costs.
(Tarun Shridhar) Member (A) /lg/