Central Administrative Tribunal - Jaipur
N K Berwa vs M/O Personnel,Public Grievances And ... on 29 August, 2019
PQdSe thsi: v- OA No. 291/54/2011 & OA No. 291/55/2011 1 CENTRAL ADMINISTRATIVE TRIBUNAL JAIPUR BENCH, JAIPUR ORIGINAL APPLICATION NO. 291/54/2011 & ORIGINAL APPLICATION NO. 291/55/2011 Order reserved on 26.04.2019 DATE OF ORDER: 29-3- a9. CORAM HON'BLE MR. SURESH KUMAR MONGA, JUDICIAL MEMBER HON'BLE MR. A. MUKHOPADHAYA, ADMINISTRATIVE MEMBER OA No. 291/54/2011 N.K. Bairwa S/o late Shri Jagan Nath aged 71 yrs R/o House No. 54 Jai Jawan Colony 3 JLN Marg, Jaipur. .. Applicant Shri P.C. Jain with Shri Zeeshan and Shri Amit Sharma, counsels for applicant. VERSUS 4. Union of India through Secretary, Department of Personnel and Training, Ministry of Personnel, Public Grievance and Pensions, Government of India, North Block, New Delhi. . 2. The 'State of Rajasthan through Chief Secretary, Government of Rajasthan, Rajasthan Secretariat, Jaipur. ....Respondents Mr. V.D. Sharma, counsel for respondent no. 2. OA No. 291/55/2011 Chandra Prakash S/o late Shri Devi Lal Meena R/o D 173 Malviya Nagar, Jaipur (Raj.)- «+ Applicant Shri P.C. Jain with oe ; Shri Occhan and Shri Amit Sharma, counsels for applicant. VERSUS 1. Union of India through Secretary, Department of Personnel and Training, Ministry of Personnel, Public Grievance and Pensions, Government of India, North Block, New Delhi. 2. The state of Rajasthan through Chief Secretary, Government of Rajasthan, Rajasthan Secretariat Janpath, Jaipur. " ....Respondents Mr. V.D. Sharma, Counsel for respondent no. 2. OA No. 291/54/2011 & OA No. 291/55/2011 2 ORDER
Per: Suresh Kumar Monga, Judicial Member The applicant in O.A. No. 291/54/2011 is a 1967 batch IAS Officer of Rajasthan Cadre, who sought voluntary retirement, which was accepted with effect from 31.12.2000. Whereas, the applicant in O.A. No. 291/55/2011 is 4 1964 batch IAS Officer of Rajasthan Cadre, who retired after attaining the age of superannuation on 31:08.1995. As a common question of law and fact is involved in both these cases, therefore, with the consent of learned counsels for the parties, the same are taken up together for disposal.
2. For the sake of convenience, the facts are culled out from O.A. No. 291/54/2011 (N.K. Bairwa vs. Union of India & Anr.). It is the pleaded case of the applicant that at the time of voluntary retirement on 31.12.2000, he had already put in more than 33 years and 05 months service and was drawing Rs. 24500/-, which was the pay at the maximum of pay scale of 22400-525-24500. It has further been averred that in accordance with the Central Civil Services (Pension) Rules, 1972 / CCS (Pension) Rules, 1972 for the purposes of grant of pension, 50% of the basic pay last drawn plus allowances is reckoned where an employee has completed 33 years of service. Thus, on the basis of last pay drawn by the applicant, his pension was fixed at RS. 12250/- plus allowances vide order dated 16" June, 2001 issued by the pirectorate of Pension and Pensioners Welfare, Rajasthan. It has further been averred that the Pay Scale of 22400-525-24500 effective from 01.01.1996 till 31.12.2005 during the currency of the _ recommendations of 5" Central Pay Commission, has further been revised to PEEeGE Ags res 67000-79000 by the Government of India after recommendations of the 6 Central Pay Commission. The applicant on the date of his voluntary retirement ON 31.12.2000 was in the pay scale of 22400-525-24500 plus OA No. 291/54/2011 & OA No. 291/55/2011 3 allowances. The corresponding pay of Rs. 24500/-, which was being drawn by the applicant at the time of his retirement, has now been revised to Rs. 79000/-. The grievance of the applicant herein is that the Government vide Office Memorandum No. 38/37/08-P&PW (A) dated 20.08.2009 has revised the pay scale of 22400-525-24500 to 67000-79000 but in the case of pre- 2006 pensioners, it has been laid down that the revision of pension will be equal to 50% of the sum of minimum of pay band plus grade pay / scales. According to the applicant, since he was drawing Rs. 24500/-, which was the maximum of pay scale of 22400-525-24500, therefore, in the revised pay band after acceptance of the recommendations of 6" Central Pay Commission, he becomes entitled to 50% of the maximum pay in the said pay band i.e. Rs. 79000/- as the maximum pay in the pay scale of 22400- 525-24500 was equivalent to Rs. 79000/-, which was the maximum pay in the pay band of 67000-79000. Alleging that a financial loss of about 3,42,000/- has been caused to him from 01.01.2006 to 30.09.2010 besides the loss on account of DA and interest, the jurisdiction of this Tribunal has been invoked by the applicant under Section 19 of the Administrative Tribunals Act, 1985 by way of present Original Application making therein the following prayer:
" i he above facts and grounds mentioned in the body of t we viet on i is humbly prayed that looking to the overall facts ond Circumstances of the case this Hon ble Tribunal be pleased to issue specific orders thereby directing the respondents by an appropriate order or direction to grant the aforesaid amount of rupees 342,000/- as the pecuniary benefits on account of the pension for which he was entitled to along with usual DA + interest thereon. The action of respondents be struck down to the extent that on the basis of implementation of sixth pay commission's recommendations wef 1.1.2006 are discriminatory in nature so as to be violative of principles of natural justice thereby offending article 14 of the Constitution of India. Pension of the petitioner may kindly be ordered to be fixed 50% of the corresponding pay prescribed by the sixth of the pay commission. The respondents be directed accordingly to continue to pay/disburse the pension accordingly with all consequential benefits. Annexures A 1 and A2 the directed of be modified thereby directing the removal of word "minimum" as used in Table square N. 7 and 8.
one Eee ee meno cme ee te tae eae ae ee os ee Clade ek ee ee et OA No. 291/54/2011 & OA No. 291/55/2011 4 Pension = 50% of sum } Family pension + 30% of sum Of min. of PB-GP/scale } of min. Of PB + GP/scales 33500/- 7 } 20100 8 Discriminatory in nature and be substitute by revised corresponding pay.
8A. That the circular dated 20.8.2009 be ignored being illegal and nonest order violating Art. 14, 16 and Rules of natural justice and the pension Rules 1972.
Any other appropriate order or direction thereby subserving the cause of justice and in the interest of applicant be also granted in favour of the petitioner.
Cost of the petition may also be awarded in favour of the applicant."
3. No reply has been filed on behalf of respondent no. 1 / Union of India.
However, respondent no. 2 / State of Rajasthan while filing its reply has opposed the applicant's claim with the assertions that the applicant has not challenged the notification dated 19.09.2008 and OM dated 20.08.2009 issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Pension and Pensioners' Welfare, New Delhi whereby the benefit of 6 Central Pay Commission has been extended to pre-2006 retirees and, therefore, without there being a challenge to said notification and OM, the Original Application cannot be entertained by this Tribunal. The allegation with regard to disparity having been created by the said OM dated 20.08.2009 and notification dated 19.09.2008 has been refuted. It has further been averred that it is the prerogative of the Government to lay down and prescribe the revision of the pay scales. The cut off date on rationale and reasonable basis has to be fixed for extending the benefit of a _ particular pay scale and the same cannot be permitted to lay a challenge before a court of law without any legal or justified reason. There is no illegality in the notification and OM issued by the Government after due exercise and, therefore, question of any disparity does not arise. With all these assertions, the respondent no. 2 has prayed for dismissal of the O.A. OA No. 291/54/2011 & OA No. 291/55/2011 5
4. Heard learned counsels for the parties.
5. Shri P.C. Jain, learned counsel for the applicant submitted that the applicant at the time of his retirement was drawing Rs. 24500/-, which was the maximum pay in the pay scale of 22400-525-24500 and, accordingly, he was sanctioned the pension at 50% of the last drawn pay i.e. Rs. 12250/-. Learned counsel submitted that after revision of pay scales in view of acceptance of the 6" Central Pay Commission by the Government, the pay scale of 22400-525-24500 was revised to 67000-79000 and, therefore, n the fixation of pension @ 50% of the maximum of taking into consideratio pre-revised pay scale, the respondents ought to have reckoned the applicant's pension while taking into consideration the maximum of pay band of 67000-79000 and the applicant's pension should have been determined at Rs, 39500/-. Learned counsel further submitted that the action of the respondents, while making fixation of his pension by taking into consideration the minimum of the pay in the pay band of 67000-79000, is arbitrary and the same cannot be sustained. Expanding his argument further, Shri Jain, learned counsel for the applicant submitted that this amounts to even lowering down the applicant's rank as his junior who retired at a less pay in the pre-revised pay scale of 22400-525-24500 shall be getting the same pension after revision of the pay scales.
6. Per contra, Shri V.D. Sharma, learned counsel for respondent no. 2 submitted that the applicant cannot allege any discrimination by saying that his junior who was getting less pay in the pre-revised scale of 22400-525- 24500 will be getting the same pension after revision of the pay scales as it is the prerogative of the Government to accept the recommendations of a pay commission as it is or with some variations. Learned counsel further submitted that since there is no challenge laid down to the notification dated OA No. 291/54/2011 & OA No. 291/55/2011 6 19.09.2008 and OM dated 20.08.2009 issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Pension & Pensioners' and Welfare, New Delhi in the present O.A., therefore, the applicant cannot claim the pension @ 50% of the maximum of pay in the pay band of 67000- 79000.
7. Considered the rival contentions of learned counsels for the parties and perused the record.
8. There is no dispute with regard to fact that the applicant was drawing the maximum pay of Rs. 24500/- in pay scale 22400-525-24500 at the time of his retirement. After acceptance of recommendations of the 6" Central Pay Commission, the pay scale of 22400-525-24500 was initially revised to Pay Band-4, 37400-67000 plus Grade Pay Rs. 12000/-. Thereafter, the Pay Band-4, 37400-67000 plus Grade Pay Rs. 12000/- was revised to 67000- 79000 by Government of India's Order No. 38/37/08-P&PW(A) pt. 1 dated 20 August, 2009.
9, The applicant is seeking a direction for fixation of his pension at 50% of the corresponding pay prescribed by the 6" Central Pay Commission and also for removal of word as 'minimum' as used in the table prescribeg jn the Office Memorandum dated 20" August, 2009 (Annexure A/2) wherein it has been stipulated that pension admissible to a pre-2006 pensioner Shall be 50% of the sum of minimum of Pay Band plus Grade Pay/scale i.e. 33500/- as the corresponding Pay Band / Scale of the Pay Scale of 22400-525-24500 has been revised to 67000-79000 as per the recommendations of 6 Central Pay Commission. Since the minimum of said Pay Band is Rs. 67000/-
OA No. _291/54/2011 & OA No. 291/55/2011 7therefore, the pension @ Rs. 33500/- (i.e. 50% of the minimum of Pay Band) has been made admissible to a pre-2006 pensioner.
10. We do not find any justification in the aforesaid prayer made by the applicant. A perusal of the Office Memorandum dated 20" August, 2009 reveals that pursuant to "Government of India's decision on the recommendations of the 6 Central Pay Commission, sanction of the President was accorded to the regulation, with effect from 01.01.2006, of pension / family pension to all the pre-2006 pensioners / family pensioners in the manner indicated in OMs dated 03.10.2008 and 14.10.2008. It further noticed a fact with regard to concordance table of the pre-1996 and post-2006 pay scales/pay bands enclosed as Annexure-I with OM dated 14.10.2008 which was drawn to facilitate payment of revised pension/family pension in terms of para 4.2 of the OM dated 01.09.2008.
11. The applicant in order to claim the fixation of his pension @ of 50% of the highest pay in the Pay Band of 67000-79000 placed heavy reliance upon a judgment rendered by the Chandigarh Bench of this Tribunal in 0.,. No. 509/CH/2011, Association of Retired Officers of Indian Audit & Accounts Department, Chandigarh & Ors. vs. Union of India g Ors., which was disposed of on 23™ March, 2012. The plea set up before the Chandigarh Bench of this Tribunal was that those who retired Prior to 01.01.2006 and those who retired after this date should not be differentiated as per law laid down by the Hon'ble Supreme Court in the case of Union of India & Another vs. SPS Vains (Retired) & Ors., (2009) (1) R.s.j. Page 5 : (2008) 2 SCC (L&S) 838 and the same was in violation of Article 14 of the Constitution of India. The applicants therein sought a complete Parity in pension to all pensioners irrespective of the date of their retirement. While allowing the said 0.A., the Chandigarh Bench of this Tribunal relied upon the 4 ' OA No. 291/54/2011 & OA No. 291/55/2011 8 judgment dated 015 November, 2011 rendered by a Full Bench of the Principal Bench of this Tribunal in Central Government SAG (S-29) Pensioners Association & Anr. vs. Union of India & Anr. (0.A. No. 655/2010) wherein the respondents were directed to re-fix the pension of all pre-2006 retirees with effect from 01.01.2006 based on resolution dated 29.08.2008.
12. A perusal of the judgment in the case of Central Government SAG (S-29) Pensioners Association (supra) reveals that the Government of India constituted 6 Central Pay Commission on 05.10.2006 to examine the principles which should govern the structure of pension, death-cum- retirement gratuity, family pension and other terminal or recurring benefits.
The said report was submitted by the Commission on 24.03.2008. The Pay Commission made separate recommendations for revision of pension of the past pensioners and for determination of pension of those retiring after implementation of its recommendations. In regard to determination of pension of those retiring after implementation of its recommendations, the Commission recommended that linkage of full pension with 33 years of qualifying service should be dispensed with. Once an employee renders the minimum pensionable service of 20 years, the pension should be paid at 50% of the average emoluments received during the past 10 months or the pay last drawn, whichever is more beneficial to the retiring employee.
However, regarding revision of pension of past pensioners, the Commission made recommendations as per para 5.1.47 of the report and the said recommendation was accepted by the Government with certain modifications and, thus, this modified formula formed basis for revision of the pension of the pre-2006 retirees as adopted by resolution dated 29.08.2008.
OA No. 291/54/2011 & OA No. 291/55/2011 913. The plea raised by the applicants before the Principal Bench in the case of Central Government SAG (S-29) Pensioners Association (supra) was that the resolution dated 29.08.2008 has not even been followed by the respondents in its true letter and spirit as the subsequent clarifications issued vide OMs dated 03.10.2008 and 14.10.2008 have given complete go- bye to the criteria and orinciples for determining the pensions in terms of OM dated 01.09.2008, which was issued for implementation of Government's resolution dated 29.08.2008 accepting the recommendations of the oe"
Central Pay Commission with certain modifications. The Principal Bench of this Tribunal in paragraph 23 of the judgment noticed a specific plea of the applicants therein with regard to disparity caused on account of grant of enhanced scales in S-24 to S-27 grade contrary to recommendations of the 6" Central Pay Commission and further reducing the scales recommended by the Pay Commission in respect of S-29 grade to be at par with the employees, who were placed in S-24 to S-27 grade. While adversely commenting upon the subsequent clarifications, the Principal Bench of this Tribunal in its judgment arrived at a conclusion that such a course was not permissible for the functionaries of the Government in the garb of clarification, that too, at their own level without referring the matter to the Cabinet. Paragraph 26 of the said judgment reads, thus: -
"26. As can be seen from the relevant portion of the resolution dated 29.8.2008 based upon the recommendations made by the VI CPC in paragraph 5.1.47, it is clear that the revised pension of the pre-2006 retirees should not be less than 50% of the sum of the minimum of the pay in the Pay Band and the grade pay thereon corresponding to the pre-revised pay scale held by the pensioner at the time of retirement. However, as per the OM dated 3.10.2008 revised Pension at 50% of the sum of the minimum of the pay in the pay band and the grade pay thereon, corresponding to pre-revised scale from which the pensioner had retired has been given a go-bye by deleting the words sum of the and grade pay thereon corresponding to the pre-revised pay scale and adding irrespective of the pre- revised scale of pay plus implying that the revised pension is to be fixed at 50% of the minimum of the pay, which has substantially changed the modified parity/formula adopted by the Central Government pursuant to the recommendations made by the VI CPC and has thus caused great Prejudice to the applicants. According to us, such a course was not available to the functionary of the Government in the garb of clarification thereby altering the recommendations given by the VI CPC, as accepted by the Central Government. According to us, deletion of the words sum of the and grade pay thereon corresponding to the pre-revised scale and addition of the words irrespective of OA No. 291/54/2011 & OA No. 291/55/2011 10 the pre-revised scale of pay plus, as introduced by the respondents in the garb of clarification vide OM dated 3.10.2008 amounts to carrying out amendment to the resolution dated 29.08.2008 based upon para 4.1.47 of the recommendations of the VI CPC as also the OM dated 1.9.2008 issued by the Central Government pursuant to the aforesaid resolution, which has been accepted by the Cabinet. Thus, such a course was not permissible for the functionary of the Government in the garb of clarification, that too, at their own level without referring the matter to the Cabinet."
14. While having elaborate discussions in the light of the Hon'ble Supreme Court's judgment in the case of SPS Vains (supra), the Principal Bench of this Tribunal arrived at a conclusion that the said judgment cannot provide any assistance to applicants, which was rendered in the different facts and circumstances of the case and relates to the Army personnel and based on the principles of one rank one pension. Paragraph 10 of the judgment reads, thus:
"10. We may now consider the claim made by the applicants based upon the decision of the Apex Court in the case of S.P.S. Vains (supra). As already stated the Government of India has issued OM dated 01.09.2008 (Annexure A-
1) in respect of pre-2006 pensioners/family pensioners pursuant to acceptance of recommendations made by the VI CPC. Para 2.1 of this OM stipulates that these orders shall apply to all pensioners/family pensioners who were drawing pension/family pension on 1.1.2006 under the Central Civil Services (Pension) Rules, 1972. CCS (Extraordinary Pension) Rules and the corresponding rules to Railway pensioners and pensioners of All India Services, including he Indian Civil Service retired from service on or after 1.1.1973. Para 2.2 stipulates that separate orders will be issued by the Ministry of Defence in regard to Armed Forces pensioners/family pensioners. Thus, reading of this OM clearly stipulates that the OM dated 1.9.2008 has been made applicable to the employees of the Central Government who are granted pension under CCS (Pension) Rules, 1972. Admittedly, the Armed Forces pensioners are not governed by the family pension Rules, 1972 but they are governed by different set of Rules. It may be stated here that in terms of the Pension Rules, 1972 the pension in the case of existing pensioners and future pensioners have to be computed by applying the rule of average emoluments as set out in Rule 34 whereas in the case of the defence pensioners, they are regulated in terms of the Special Army instructions issued in that regard based on the concept of one rank one pension, which is not applicable in respect of the employees Serving in the Central Government. That apart the Government of India has also issued instructions dated 18.11.2009 based upon the judgment of the Apex Court in the case of S.P.S. Vains (supra) thereby clarifying that the judgment of the Apex Court in the case of S.P.S. Vains (supra) will not apply in the case of petitioners who retired from the civil departments and who, before their retirement wer governed by the CCS (Pension) Rules, 1972. That apart, in the case of S P S. Vains (supra) the Court was dealing with entirely a different issue. The issue involved in the said case was whether there could be a disparity in payment ' pension to officer of the same rank, who had retired prior to the introductio, i"
the revised pay scale, with those who retired thereafter. It was further tic i that an anomaly has arisen with the acceptance of the recommendati nef tre V CPC, which has created a situation whereby Brigadiers began dra Ving aes pay than Major Generals and were, therefore, receiving hi aso ens ; ; ; ' g higher pension and family pension than Major Generals. It was in this context that the jud was rendered. In order to remove that anomaly Government stepped up pension above, applicable officers of t OA No. 291/54/2011 & OA No. 291/55/2011 11 of Major Generals who had retired prior to 1.1.19 ivi j given to the Brigadiers. Before the High Court it oe "urged oe behalf of th : writ petitioners that while the writ petitioners and the other similarly placed fricers who had retired while holding the rank of Major Generals prior to t 1 199¢ were given the same pension as that of Brigadier. However, in the case Mason Generals who retired after 1.1.1996 their pay was initially fixed accordi to clause 12 (c) of Special Army instructions 2/S/1998 which enabled them t sd Ww higher pension than those retired before 1.1.1996 despite holding the. me rank. It was in this context that the Writ Petition was allowed by the High Court, directing the Government to fix minimum pay scale of the Major General xbo that of the Brigadier and grant pay above that of a Brigadier as has been done in the case of post 1.1.1996 retirees and consequently fix pension and family pension accordingly. Thus, according to us applicants cannot take any assistance from this judgment, which was rendered in the different facts and circumstances of the case and relates to the Army personnel and based on the premise of one rank one pension."
15. After having detailed deliberations over the resolution dated 29.08.2008 and the OM dated 01°* September, 2008, the Principal Bench of this Tribunal had quashed and set aside the subsequent clarificatory OMs dated 03.10.2008 and 14.10.2008 in the case of Central Government SAG (S-
29) Pensioners Association (supra) and directed the respondents to re-fix the pension of all pre-2006 retirees w.e.f. 01.01.2006 based on resolution dated 29.08.2008.
16. So far as the applicant herein is concerned, he is seeking a direction for re-fixation of his pension @ 50% of the highest pay in the Pay Band 67000- 79000. It requires to be noticed here that the Government of India came out with an OM No. 38/37/08-P&PW (A) dated 01* September, 2008 in order to implement the resolution dated 29.08.2008 whereby the recommendations of the 6 Central Pay Commission were accepted with certain modifications. A perusal of para 4.2 of OM dated 01* September, 2008 made a provision for fixation of pension to the effect that the revised pension, in no case, shall be lower than fifty percent of the minimum of the pay in the pay band plus the grade pay corresponding to the pre-revised pay scale from which the pensioner had retired. So far as the case of HAG | + and above scales is concerned, the provision of pension @ 50% of the minim um OA No. _291/54/2014 & OA No. 291/55/2014 12 of the revised pay scale has been made therein. The relevant paras 3.1 and 4.2 of OM dated 015t September, 2008 are reproduced here as under: -
"3,1 In these orders :
a. Existing pensioner or Existing Family pensioner means a pensioner who was drawing/entitled to pension/family pension on 31.12.2005. b. Existing pension means the basic pension inclusive of commuted portion, if any, due on 31.12.2005. It covers all classes of pension under the CCS (Pension) Rules, 1972 as also Disability Pension under the CCS (Extraordinary Pension) Rules and the corresponding rules applicable to Railway employees and Members of All India Services.
Existing family pension means the basic family pension drawn on 31.12.2005 under the CCS (Pension) Rules and the corresponding rules applicable to Railway employees and Members of All India Services.
4.2 The fixation of pension will be subject to the provision that the revised pension, in No case, shall be lower than fifty percent of the minimum of the pay in the pay band plus the grade pay corresponding to the pre-revised pay scale from which the pensioner had retired. In the case of HAG+ and above scales, this will be fifty percent of the minimum of the revised pay scale."
17. It requires to be mentioned here that the Office Memorandum dated 015¢ September, 2008 was made applicable to all pensioners / family pensioners, who were drawing pension/family pension on 01.01.2006 under the Central Civil Services (Pension) Rules, 1972, CCS (Extraordinary pension) Rules and the corresponding rules applicable to Railway pensioners and pensioners of All India Services, including the officers of Indian Civil Services retired from service on or after 01.01.1973.
18. Thereafter, the Government of India, Ministry of Personnel, Public Grievances & Pensions, Department of Pension & Pensioners' Welfare came out with concordance table in order to facilitate the fixation of pension. The said concordance table was made an 'Annexure-1' with the Office Memorandum dated 14" October, 2008, which is reproduced here as under:
OA No. 291/54/2011 & OA No. 291/55/2011 13 "ANNEXURE-1 REVISED PENSION BASED ON REVISED PAY BANDS AND GRADE PAYS FOR POSTS G val *BE CR "Dy CAR GROUP 'A', 'B', *C'& 'D' AS PER SIXTH CENTRAL PAY COMMISSION . PRESENT SCALES IN (Refer para 4 of OM No, 38/37/08-P&PW(A) dated 14-10-2008 of D/o Pension & PW) Sl. Pay scale w.e.f. | Post / Grade and Pay | Name of | Correspondi | Corresp- i ; I p Pension* No. | 1.1.1986 scale w.e.f. 1.1.1996 Pay ng 6" CPC | onding = 50% of Pension** Band/ Pay Grade Pay | sum Of | = 30% of Grade Scale | scale Bands/scale min. of | sum Of s PB+GP/ min. of scales PB+GP/ 2 3 4 5 6 7 5 Scales 1 750-12-870-14- | S-1 2550-55- -1S 4440-7440 | 1300 3500 3500 940 2660-60-3200 2 775-12-871-12- | S-2 2610-60- "1S 4440-7440 | 1400 3500 3500 1025. 3150-65-3540 3 775-12-871-14- | S-2A | 2610-60- -1S 4440-7440 | 1600 3500 3500 955-15-1030- 2910-65- 20-1150- 3300-70-4000 4 800-15-1010- $-3 2650-65- -1S 4440-7440 | 1650 3500 3500 20-1150 3300-70-4000 5 825-15-900-20- | S-4 2750-70- PB-1 5200-20200 | 1800 3500 3500 1200 3800-75-4400 6 950-20-1150- S-5 3050-75- PB-1 5200-20200 | 1900 3550 3500 25-1400 3950-80-4590 950-20-1150-
25-1500 1150-25-1500 7 975-25-1150- S-6 3200-85-4900 | PB-1 5200-20200 | 2000 3600 3500 30-1540 975-25-1150- 30-1660 8 1200-30-1440- | S-7 4000-100- PB-1 5200-20200 | 2400 3800 3500 30-1800 6000 1200-30-1560- 40-2040 1320-30-1560- 40-2040 9 1350-30-1440- | S-8 4500-125- PB-1 5200-20200 | 2800 4000 3500 40-1800-50- 7000 2200 1400-40-1800- 50-2300 1400-40-1600- | 5-9 5000-150- PB-2 9300-34800 | 4200 6750 405077 50-2300-60- 8000 2600 1600-50-2300- 60-2660 11 1640-60-2600- S-10 5500-175- PB-2 9300-34800 | 4200 6750 "405077 75-2900 9000 0 12 | 2000-60-2120 S-11 | 6500-200- PB-2 9300-34800 | 4200 6750 -ags0------- 6900 0 13 | 2000-60-2300- | $-12 | 6500-200- PB-2 9300-34800 | 4200 6750 4050 75-3200 10500 2000-60-2300- 75-3200-3500 14 | 2375-75-3200-. | S-13 | 7450-225- PB-2 9300-34800 | 4600 100-3500 11500 6950 4170 2375-75-3200- 100-3500-125- 3750 15 | 2500-4000 $-14 | 7500-250- PB-2 9300-34800 12000 4800 7050 4230 16 | 2200-75-2800- | S-15 | 8000-275- PB-2 9300- 100-4000 13500 00-34800 | 5400 7350 4410 2300-100-2800 17 | 2200-75-2800- | NEW | 8000-275- PB-3 ~ 100-4000 SCAL aoreo 5400 10500 6300 Stee, te OA No. 291/54/2011 & OA No. 291/55/2011 i4 E 13500 (Group A Entry) 18 | 2630/- FIXED S-16 | 9000 PB-3 15600- 5400 1050:
19 | 2630-75-2780 S-17 | 9000-275 23300 ° _ "fon - -275- PB-3 15600- 5400 10500 9550 39100 6300 20 | 3150-100-3350 | S-18 | 10325-325- PB-3 15600- 6600 10975 39100 11100 6660 21 | 3000-125-3625 | S-19 | 10000-325- PB3 15600- 6600 111 15200 39100 00 6660 3000-100-3500- 125-4500 3000-100-3500- 125-5000 22 | 3200-100-3700- | S-20 | 10650-325- PB-3 15600- 6600 11100 6660 125-4700 15850 39100 33 | 3700-150-4450- {S-21 | 12000-375- PB-3 15600- 7600 11600 6960 16500 39100 3700-125-4700- 150-5000 34 | 3950-125-4700- | S-22 } 12750-375- PB-3 15600- 7600 11600 6960 150-5000 16500 39100
55. | 3700-125-4950- | S-23 | 12000-375- PB-3 15600- 7600 11600 6960 150-5700 18000 39100 36 | 4100-125-4850- | S-24 | 14300-400- PB-4 37400- 8700 23050 13830 150-5300 18300 67000 4500-150-5700 37 | 4800-150-5700 | S-25 | 15100-400- PB-4 37400- 8700 23050 13830 18300 67000 5100-150-5700 | S-26 | 16400-450- PB-4 37400- 8900 23150 28 20000 67000 13890 5100-150-6150 5100-150-5700- 200-6300 391 5100-150-6300- | S-27 | 16400-450- PB-4 37400- 8900 23150 13800 200-6700 20900 67000 30 | 4500-150-5700- | S-28 14300-450- PB-4 37400- 10000 23700 14220 200-7300 oe B-4 37400 1
-200- $-29 | 18400-500- PB- - o000 23700 31 | 5900-200-6700 18405) pads 14230 5900-200-7300 ~100- S-30 | 22400-525- PB-4 37400- 12000 2470 32 | 7300-100-7600 ae a00 D 14830 300-7500- | S-31 | 22400-600-. HAG+ | 75500- NIL 377 Ss --------__| 33 | 7300-200-7500 2700 0000 50 22650 250-8000 : SCALE 5-32 | 24050-650- HAG+ | 75500- NIL 37750 >5ee-- ----- 34 | 7600/- FIXED 3000 $0000 22650 SCALE 7600-100-8000 S-33 | 26000 (FIXED) | APEX 80000 NIL 40000 35 | 8000/- FIXED scate _| (FIXED) 24000
734. | 30000 (FIXED) | CAB. 90000 NIL 450007} ss 36 | 9000/ s SEC. (FIXED) 00 27000 FIXED ad * Note-1: As per Para 4.2 of OM No, 38/37/08-P after completing maximum required qualifying se Pension indicated in column 8 above (i.@. 50 corresponding to the scale of pay the pensioners will be reduced pro-rata, where the pensione years) for full pension as per Rute 49 of the CC will be less than Rs, 3500/- p.m. In case, pension calculated in the manner above, th **Note-2. The revised family pension in respect of those pensioners who retired before 1,1 r had les RPW(A) dated 1.9.08, the revised pension of tho rvice (i.e. 33 years) before 1.1.2006 cannot be of the sum of Minimum of Pay Band and Gra held at the time of their retirement). The pension in s than the maximum required qualifying se S (Pension) Rules, 1972 as applicable on 1.1.2006 an the pension consolidated as per Para 4.1 of above OM is h e same (higher pension) will be treated as Basic pension, se who retired less than the de pay/scale Col. 8 above rvice (i.e. 33 d In no case it igher than the
-2006 and the Government servants who died before 1.1.2006 cannot be less than the pension indicated in column 9 above (i 8, pore of the sum of Minimum of Pay Band and Grade pay/scale corresponding to the scale of pay higher ee et their retirement). In case, the family pension consolidated as per Para 4.1 'ami ; . : . r :
Basic family pension. Y pension indicated in column 9 above, the same (higher family pension) wi the pensioners of above OM is il be treated as OA No. 291/54/2011 & OA No. 291/55/2011 15
19. The applicant, at the time of his retirement, was in the pay scale of 22400-525-24500 and he was drawing the highest of the pay in the said pay scale i.e. Rs. 24500/-. The said pay scale was initially replaced with PB-4 37400-67000 with Grade Pay of Rs. 12000/-. And according to the concordance table reproduced hereinabove, his pension ought to have been fixed at Rs. 24700/-. However, the Pay Band-4 37400-67000 with Grade Pay of Rs. 12000/- was later on substituted by the Government of India vide Office Memorandum dated 20" August, 2009 and the same was made as 67000-79000 and no Grade Pay was prescribed therein. The maximum pay i.e. 67000 in PB-4 37400-67000 (which was initially introduced pursuant to recommendations of 6' Central Pay Commission) was made the minimum of the pay in the substituted Pay Band i.e. 67000-79000. Accordingly, while following Clause 4.2 of the OM dated 01% September, 2008, the pension to pre-2006 retirees was increased from Rs. 24700/- to Rs. 33500/-. Since is no challenge by the applicant to Clause 4.2 of the Office there Memorandum dated 01% September, 2008 in the present Original Application, therefore, the relief claimed by him that he is entitled to get the pension @ 50% of the maximum of the pay in the Pay Band of 67000-79000 cainot be granted. Neither such a direction can be issued to the respondents to omit the word 'minimum' from the table reproduced in om dated 20 August, 2009 as the applicant has failed to lay any challenge to Clause 4.2 of the OM dated 01% September, 2008 wherein it has been laid down that in the case of HAG+ and above scales, the pension will be fixed at 50% of the minimum of the revised pay scale.
20. The plea of learned counsel for the applicant that in view of the judgment rendered by the Hon'ble Supreme Court in the case of D.s Nakara and others vs. Union of India, (1983) 1 SCC 305, no distinction can be made between pre-2006 and post-2006 retirees - can hardly be OA No. 291/54/2011 & OA No. 291/55/2011 16 accepted in view of the judgment rendered by the Hon'ble Supreme Court in the case of Government of Andhra Pradesh and others v. N. Subbarayudu and others, (2008) 14 SCC 702 wherein after considering the view taken in D.S. Nakara (supra), it has been held that even if no reason is forth-coming from executive for fixation of a particular date, it should not be interfered with by the Court unless the cut off date leads to some blatantly capricious or outrageous result. It is always within the domain of the executive authority to fix the cut off date while keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. The consistent view of the ~ Hon'ble Supreme Court in this regard is that the Court should not normally interfere with the fixation of cut off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary. The relevant paragraphs 5 to 9 of the report in N. Subbarayudu (supra) are reproduced here as under: -
"5, In a catena of decisions of this Court it has been held that the cut-off date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. This Court is also of the view that fixing cut-off dates is within the domain of the executive authority and the court should not normally _ interfere with the fixation of cut-off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary. (See State of Punjab & Ors. Vs. Amar Nath Goyal & Ors., (2005) 6 SCC 754),
6.No doubt in D.S. Nakara & Ors. vs. Union of India 1983(1) Scc 305 this Court had struck down the cut-off date in connection with the demand of pension. However, in subsequent decisions this Court has considerably watered down the rigid view taken in Nakara case (supra) as observed in para 29 of the decision of this Court in State of Punjab vs. Amar Nath Goyal (supra),
7. There may be various considerations in the mind of the executive authoriti due to which a particular cut-off date has been fixed. These considerations es: be financial, administrative or other considerations. The court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cut-off date. The Government must be left with some leeway and free play at the joints in this connection.
8. In fact several decisions of this Court have gone to the extent i the choice of a cut-off date cannot be dubbed as arbitrary even rae ving that reason is given for the same in the counter-affidavit filed by the Gover icular (unless it is shown to be totally capricious or whimsical), vide State of Smment Ramjee Prasad (1990) 3 SCC 368, Union of India vs, Sudhir Kum Jaiswal (1994) 4 SCC 212 (vide SCC para 5), Ramrao vs. Alt India Backward Cla Jaiswal Employees Welfare Assn. (2004) 2 SCC 76 (vide scc para 31) Unt Bank Grants Commission vs. Sadhana Chaudhary, (1996) 10 scc O36 ey OA No. _291/54/2011 & OA No. 291/55/2011 17 follows, therefore, that even if no reason has been given in the counter-affidavit of the Government or the executive authority as to why a particular cut-off date has been chosen, the court must still not declare that date to be arbitrary and violative of Article 14 unless the said cut-off date leads to some blatantly capricious or outrageous result.
9. As has been held by this Court in Aravali Golf Club vs. Chander Hass (2008) 1 SCC 683 : JT (2008) 3 SC 221 and in Govt. of A.P. vs. P. Laxmi Devi (2008) 4 SCC 720: (2008) 2 JT 639 the court must maintain judicial restraint in matters relating to the legislative or executive domain."
21. In the case of Union of India v. S.R. Dhingra and others, (2008) 2 SCC 229 : (2008) 1 SCC (L&S) 926, the Hon'ble Supreme Court has ruled that when two sets of employees of the same rank retire at different points of time, one set cannot claim. the benefit extended to the other set on the ground that they are similarly situated. The employer can validly fix a cut- off date for introducing any new pension/ retirement scheme or for discontinuance of any existing scheme. The relevant paragraph 25 of the judgment in the case of S.R. Dhingra (supra) reads thus:
"25. It is well settled that when two sets of employees of the same rank retire at different points of time, one set cannot claim the benefit extended to the other set on the ground that they are similarly situated. Though they retired with the same rank, they are not of the same class or homogeneous group. Hence Article 14 has.no application. The employer can validly fix a cut- off date for introducing any new pension/retirement scheme or for discontinuance of any existing scheme. What is discriminatory is introduction of benefit retrospectively (Or Proere e nee cat olay
- ividing a single homogenou 0 two groups sueyecting them to different treatment (vide Col B.J. Akkara (Retd.) Vs. Gove 11 SCC 709, D.S. Nakara vs. Union of India (1983) 1Scc 305 of India (2006) ' é riehoaa Kumar vs. Union of India (1990) 4 SCC 207, Indian Ex-Services League vs. Union of India (1991) 2 SCC 104, vs. Kasturi vs. MD, SBI (1998) g SCC 30 and Union of India vs. Dr. Vijayapurapu Subbayamma (2000) 7 Sscc
662)."
22. The Principal Bench of this Tribunal in the case of Central Government SAG (S-29) Pensioners Association (supra), while noticing the fact that on the basis of recommendations of the 6 Central Pay Commission, the Government came out with two different Schemes for pre-2006 and post-
2006 retirees, has held that without challenging the validity of OM dated 02.09.2008, the pre-2006 retirees cannot claim benefit at Par with post-
2006 retirees, who are governed by a separate set of Scheme. Relevant para OA No. _291/54/2011 & OA No. 291/55/2011 18 9 of the judgment in Central Government SAG (S-29) Pensioners Association (supra) reads thus: -
"9 Yet for another reason, pre-1.1.2006 and post-2006 retirees cannot be extended the same pensionary benefits inasmuch as the respondents on the recommendations of the VI CPC have issued two different Schemes for pre-2006 and post-2006 retirees. As regards, post-2006 retirees respondents have issued OM dated 2.9.2008 (Annexure R-1) as to how the pension has to be computed. As can be seen from this scheme, emoluments have to be computed on the basis of the revised pay structure and further as can be seen from paras 5.2 and 5.3 of the said OM qualifying service for the purpose of pension has been reckoned as 20 years as against 33 years, which was prevalent in respect of the employees who retired before 1.1.2006 and also that emoluments for the pensionary benefits have to be determined on the basis of 10 months average emoluments OF emoluments last drawn by the employee before his retirement, whichever is more beneficial. Applicants have not challenged the validity of the OM dated 2.9.2008. As such, on these grounds pre-2006 retirees cannot claim benefit at par with post-2006 retirees, who are governed by the separate set of Scheme."
purpose of
23. So far as the argument of learned counsel for the applicant that the fixation of applicant's pension by taking into consideration the minimum of the pay in the Pay Band of 67000-79000 amounts to even lowering down the applicant's rank as his junior, who retired at a less pay in the pre-revised pay scale of 92400-575-24500, shall be getting the same pension after revision of the pay scales, is concerned, we do not find any merit in the said argument as well.
>
24. As per the provisions of Rule 28 (6) of the All India Services (Death- cum-Retirement Benefits) Rules, 1958, the claim of a member of the service to the retirement benefits is regulated by the rules in force at the time when the member of the service retires from service. The applicant's claim for retiral benefits was, accordingly, settled at the time of his voluntary retirement on 31.12.2000 in accordance with the rules prevalent at that time. Thereafter, there remained no relation of master and servant between the applicant and the respondents. The applicant also ceased to be 3 member of the service and, therefore, the question of junior in rank retiring in the same pre-revised scale has no meaning as the Governm ent whi ile OA No. 291/54/2011 & OA No. 291/55/2011 19 accepting the recommendations of the 6" Central Pay Commission, carved out two sets of retirees i.e. pre-2006 retirees and post-2006 retirees. While issuing Office Memorandum dated 01% September, 2008 wherein the Government decided to implement the resolution dated 29.08.2008 accepting the 6" Central Pay Commission's recommendations, the expression 'existing pensioner' has been defined as a pensioner, who was drawing pension on 31.12.2005. Clause 4.2 of the said OM dated 01% September, 2008 further made a provision that the fixation of pension will be subject to the provision that the revised pension, in no case, shall be lower than fifty percent of the minimum of the pay in the pay band plus the 4 grade pay corresponding to the pre-revised pay scale from which the pensioner had retired. So far as the case of HAG+ and above scales is concerned, for the pre-2006 retirees, a provision for pension @ 50% of the minimum of the revised pay scale has been made. Meaning thereby, 'pre-
2006' pensioners have been termed as a class apart from post-2006 retirees. We do not find any illegality or error in the said classification as the dictum laid down by the Hon'ble Supreme Court in S.R. Dhingra (supra), while affirming such a classification has held that when two sets of employees of the same rank retire at different points of time, one set cannot claim the benefit extended to the other set on the ground that they are similarly situated. Though they retired with the same rank, they are not of the same class Or homogeneous group. Thus, in our considered view, the applicant herein neither can claim parity in the matter of pension with the post-2006 retirees nor he can be allowed to say that the Person who remained junior to him and retiring in the same pre-revised scale of Pay with less pay will lower down his rank.
25. The fact cannot be ignored that when the applicant was in servi Ice, his services were being governed by the Indian Administrative S ervices OA No. 291/54/2011 & OA No. 291/55/2011 20 (Recruitment) Rules, 1954 and for seniority also he was being governed by a separate set of rules namely the Indian Administrative Services (Regulation of Seniority) Rules, 1987. After retirement, neither the recruitment rules nor the rules governing his seniority can be looked into as immediately after his retirement, the All India Services (Death-cum-Retirement Benefits) Rules, 1958 became applicable on him. Thus, the rank or seniority in the cadre has no relevance when in terms of subsequent resolution, adopting the Central Pay Commission's report, the applicant's pension has been revised.
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26. In sum and substance, without there being a challenge to Clause 3.1 and 4.2 of the Office Memorandum dated 01* September, 2008, no relief can be granted to the applicant in the present Original Application.
27, In the conspectus of discussions made in the foregoing paragraphs the Original Application sans merit and the same deserves to be dismissed.
28. Accordingly, both the Original Applications No. 291/54/2944 and 291/55/2011 are hereby dismissed. However, there shall be no order as to costs.
(A. MUKHOPADHAYA! ADMINISTRATIVE MEMBER
-- (SURESH KUMA JUDICIAL MEMBER Kumawat R MONG) -
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