Central Administrative Tribunal - Hyderabad
K Sarada Rao vs M/O Railways on 9 December, 2020
OA No.1382/2014
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH
HYDERABAD
OA/021/01382/2014
Date of CAV: 1.122020
Date of pronouncement: 09.12.2020
Hon'ble Mr. Ashish Kalia, Judl. Member
Hon'ble Mr. B.V. Sudhakar, Admn. Member
Sarada Rao Kamalapuri
D/o K.V.Subba Rao,
Aged about 59 years,
Occ : Retd. Personnel Inspector Gr. II,
O/o Senior Divisional Personnel,
4th Floor, Sanchalan Bhavan,
South Central Railways, Secunderabad. ...Applicant
(By Advocate : Mr.J. Sudheer)
Vs.
1.Government of India, Rep by its Chairman,
Ministry of Railways (Rail Mantralaya),
(Railway Board), New Delhi.
2. Chief Personnel Officer,
South Central Railway,
4th Floor, Rail Nilayam,
Secunderabad - 500 071.
3.Divisional Railway Manager,
Personnel Branch,
South Central Railway,
4th Floor, Sanchalan Bhavan,
Secunderabad - 500 071. ....Respondents
(By Advocate : Mrs.Vijaya Sagi, SC for Railways)
---
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OA No.1382/2014
ORDER
(As per Hon'ble Mr.B.V. Sudhakar, Administrative Member) Through Video Conferencing:
2. The OA is filed the order dated 7.7.2014 issued by the respondents in regard to fixation of pension of the applicant under 6th CPC.
3. Brief facts are that the applicant while working for the respondents as Personnel Inspector Grade-II applied for leave and was sanctioned with pay from 21.6.2001 to 4.2.2002 and without pay from 7.4.2002 to 22.6.2006. Applicant sought voluntary retirement while being on EOL and it was approved on 23.6.2006. Applicant represented to revise her pension with the implementation of the 6th CPC which was considered and pension revised from Rs.3887 to Rs.5857 on 12.6.2014. However, as the pension was revised treating applicant as pre 2006 retiree instead post 2006 retiree, the OA has been filed.
4. The contention of the applicant is that she was allowed to retire voluntarily on 23.6.2006 and since the 6th CPC recommendations have been implemented from 1.1.2006, she has to be treated as post-2006 retiree and pension accordingly fixed. The applicant was an employee as on 1.1.2006.
While approving the voluntary retirement, applicant was not asked to join duty for a day and that she was relieved while on leave. Therefore, it was incorrect on the part of the respondents to revise pension as a pre-2006 retiree.
5. Respondents per contra state that the applicant was granted 5 years EOL from 21.06.01 to 22.06.06 to be availed while being abroad. Page 2 of 5 OA No.1382/2014 Application was preferred by the applicant to allow her to retire voluntarily on 19.05.2006 duly waiving the notice period which was approved by the competent authority and the applicant was allowed to retire voluntarily on 23.06.2006. Applicant should know that she has to join duty before retirement and it is not for them to advise her in this regard. As the applicant was on EOL without pay and voluntarily retired on 23.06.2006, without working on or after 01.01.2006, she was treated as a Pre-2006 retiree and pension refixed as per 6th CPC as Rs.5857. Applicant admitted that she has been on leave without pay form 2002. Therefore, last pay was drawn in March 2002 and the last 10 months average emoluments were taken into consideration as per rules in vogue to fix the pension as per 5th CPC scales. Representation made was disposed as per rules.
6. Heard both the counsel and perused the pleadings on record. 7 (I) The dispute is about fixing the pension of the applicant as pre -2006 retiree or a post 2006 retiree. It is not under dispute that the applicant was on Extraordinary Leave (EOL) without pay from 7.4.2002 to 22.6.2006. EOL without pay is not counted as service for the purpose of fixing pension of an employee. Therefore, the last pay drawn before the grant of EOL without pay will be taken into consideration in working out pension. In the case of the applicant, the last pay was drawn in March 2002 and hence, this would be the basis to fix the pension as per 5th CPC scales and by taking the average of the last 10 months emoluments drawn. Rule 49 of the Railway services (Pension) Rules, 1993 defines emoluments for the purpose of calculating pension as basic pay as explained in clause (i) of Rule 1303 of the IRAC as the one which was received immediately before retirement. Page 3 of 5 OA No.1382/2014 Further, Railway Board clarified in RBE No.33/2011 in 2011 dated 10.03.2011 as under with reference to the counting of EOL for purpose of pension as under:
xxx.
3. One of the zonal Railways raised a doubt regarding counting such extraordinary leave as qualifying service for pensionery benefits. The matter has been examined in consultation with the Department of Personnel & Training and it is clarified that study leave granted to a Railway servant, who fails to comply with the conditions on which study leave was granted to him, is converted into regular leave standing in his credit and the balance of study leave, if any, which cannot be so converted, due to deficiency in the leave account of the Railway servant, is converted into extraordinary leave.
Extraordinary leave thus sanctioned is due to the reason that the Railway servant has no other leave admissible to him and not for the purpose of pursuing studies as such. Hence clause (ii) of Rule 36 of Railway Services (Pension) Rules, 1993 is into applicable in such cases. In other words, such of the period of extraordinary leave shall not be counted as qualifying service for pensionery benefits.
Thus, the EOL granted to the applicant from March 2002 till her date of voluntary retirement cannot be reckoned as service for fixation of pension. Further, as per the FAQ Memo dated 18.04.2018 of Govt. of India, it is stated as under:
Which pay is reckoned as emoluments for pension if the Government servant is on leave, suspension or deputation at the time of retirement? xxx (b) If a Government servant immediately before his retirement or death while in service had been absent from duty on extraordinary leave or had been under suspension, the period whereof does not count as service, the emoluments which he drew immediately before proceeding on such leave or being placed under suspension shall be the emoluments for the purposes of this rule. The Railway Board Circular vide RBE No. 91/10 dated 24.6.2010 referred to by the applicant also clarifies that as per Rule 33 of CCS (Pension) Rules 1972, the basic pay which the employee drew before going on EOL, shall be emoluments for the purpose of pension. Based on these emoluments, the revision of pension would be effected in 6th CPC. Therefore, respondents have acted as per the above rules and fixed the pension of the applicant consequent to the implementation of 6th CPC, as a pre-2006 retiree. Page 4 of 5 OA No.1382/2014
In view of the above, as the action of the respondents was in accordance with rules, we do not find any merit in the case and therefore, we dismiss the OA, with no order as to costs.
(B.V.SUDHAKAR) (ASHISH KALIA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
evr
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