Central Administrative Tribunal - Ernakulam
Swami Anubhavananda Saraswathi vs D/O Post on 4 February, 2019
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CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/00115/2018
Monday, this the 4th day of February, 2019
CORAM:
Hon'ble Mr. Ashish Kalia, Judicial Member
Swami Anubhavananda Saraswathi,
S/o. Late K.K. Unnithan, aged 74 years,
(Ex.Nb.Subedar K.V. Unnithan),
(Army Postal Service), Room No. 3,
Jayasree Building, Kalloor Junction,
Memana, Oachira - 690526. ..... Applicant
(By Advocate : Mr. C.S.G. Nair)
Versus
1. The Director of Accounts (Postal),
Kerala Circle, Thiruvananthapuram - 695 001.
2. Chief Postmaster General, Kerala Circle,
Thiruvananthapuram - 695 033.
3. Director of Accounts (Postal),
Army Postal Service (Accounts Section),
Maharashra Circle, Nagpur - 440001.
4. The Director of Army Postal Service, C/o. 56 A.P.O.,
Army Postal Directorate.
5. Union of India, represented by its Secretary,
Pension & Pensioners' Welfare, South Block,
New Delhi - 110 001. ..... Respondents
(By Advocate : Mrs. Mini R. Menon, ACGSC)
This application having been heard on 31.01.2019 the Tribunal on
04.02.2019 delivered the following:
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ORDER
Hon'ble Mr. Ashish Kalia, Judicial Member -
The applicant claimed relief as under:
"(i) To declare that the applicant is entitled for monthly pension of Rs.
8345/- w.e.f. 1.1.2006 based on the revised minimum pay of Inspector of Posts.
(ii) To direct the respondents to grant a monthly pension of Rs. 8345/- w.e.f. 1.1.2006 based on the revised minimum pay of Inspector of Posts i.e. 16,690/- and also grant all consequential benefits including the revised pension w.e.f. 1.1.2016 with interest @ 12% per annum including arrears of pension within a stipulated period.
(iii) To Grant such other relief or reliefs that may be prayed for or that are found to be just and proper in the nature and circumstances of the case.
(iv) To grant cost of this OA."
2. The brief facts of the case are that the applicant is an Ex-Naib Subedar in the Army Postal Service. He joined service as a Postal Assistant in the Karnataka Postal Circle on 31.8.1967 and was later deputed to the Army Postal Service. He had passed the all India Competitive Examination for the post of Inspector of Post Offices and had undergone necessary training. As per CCS (Revised Pay) Rules, 1997 the pay scale of Inspector of Posts was revised to Rs. 5500-9000/- w.e.f. 1.1.1996. The above pay scale was revised to Rs. 9,300-34,800/- (PB-2) with GP of Rs. 4,200/- as per the CCS (Revised Pay) Rules, 2008. later by Annexure A6 the Grade Pay was upgraded to Rs. 4600/-. Thus, the revised pay of Inspector of Post Office is Rs. 9,300-34,800/- (PB-2) with a GP of Rs. 4,600/- w.e.f. 1.1.2006. As per Annexure A7 fitment table the minimum pay in the pay band is Rs. 16,690/- and 50% of it is Rs. 8,345/- which is to be paid as pension. The applicant submitted representation by the same has not been considered by the 3 respondents. Applicant filed OA No. 674 of 2014 which was allowed. As the order was not complied with a Contempt Petition was filed by the applicant. However, still the respondents did not grant the pension correctly and the contempt petition was closed with liberty to agitate the matter again. Hence, this OA.
3. Notices were issued to the respondents. They have entered appearance through Mrs. Mini R. Menon, ACGSC and filed a reply statement. The stand taken by the respondents in the reply statement is that the applicant who worked in various capacities in the Department of Posts had retired on superannuation prior to 1.1.2006 i.e. before the implementation of the recommendations of the 6th Pay Commission. The applicant got officiating promotion to the post of Inspector Posts in Civil side w.e.f.26.3.1987. He opted for voluntary retirement from the department w.e.f. 31.10.1989. In accordance with paragraph 4.2 of DoP&PW's OM dated 1.9.2008 the revised pension of pre-2006 retirees shall in no case be lower than 50% of the minimum of the pay in pay band plus Grade Pay corresponding to the pre-revised pay scale from which the pensioner had retired. The normal corresponding replacement scale for the pre-revised scale in S-12 grade as notified by Ministry of Expenditure base don the recommendations of 6 th CPC is PB-2 plus GP of 4,200/-. The GP of 4,200/- in respect of the pre- revised scale of Rs.6500-10500/- was upgraded to Rs. 4,600/- much later in 2009. As such the pension of pre-2006 retirees of S-12 grade would need to be fixed in the corresponding revised pay band i.e. Rs. 9300-34,800/- with GP of Rs. 4,200/-. The respondents have relied on the order of this Tribunal 4 in OA No. 655 of 2010 and order dated 29.4.2013 of the Hon'ble High Court of Karnataka in WP No. 1535 of 2012 as upheld by the Hon'ble Supreme Court in SLP No. 23055 of 2013 and 26148-50 of 2013, wherein it was held that those pensioners who retired from the scale of Rs. 6500- 10500/- are entitled to the Grade Pay of Rs.4,200/- only. Thus, there is no legally binding order to revise the pension of pre-1.1.2006 retirees who retired from the then applicable pay scale of Rs. 6500-10,500/- with reference to the GP of Rs. 4,600/-. Respondents pray for dismissing the OA.
4. Heard Shri C.S.G. Nair, learned counsel appearing for the applicant and Mrs. Mini R. Menon, learned ACGSC appearing for the respondents. Perused the records.
5. The applicant relied on the following judgments of various High Courts in support of his contentions:
a) Ram Phal v. Union of India & Ors. - WP(C) No. 3035/2016 dated 03.08.2016 of Hon'ble High Court of Delhi
b) Pay & Accounts Officer & Ors. v. N.R. Purushothaman Pillai
- OP (CAT) No. 169 of 2015 dated 18.1.2016 of Hon'ble High Court of Kerala
6. The Hon'ble Supreme Court in K.S. Krishnaswamy etc. v. Union of India & Anr. - Appeal (Civil) No. 3174 of 2006 dated 23.11.2006 held as under:
"It is common knowledge that an increase in the pay scale in any recommendation of a pay commission is a corresponding increase in the 5 pay scale. In our view, therefore, Executive Instructions dated 11.5.2001 have been validly made keeping in view the recommendations of the Pay Commission accepted by the Policy Resolution of the Government on 30.9.1997, clarified by Executive Instructions dated 17.12.1998. The Executive Instructions dated 11.5.2001 neither over-ride the Policy Resolution dated 30.9.1997 nor Executive Instructions dated 17.12.1998 clarifying the Policy Resolution dated 30.9.1997. The Executive Instructions dated 11.5.2001 were in the form of further clarifying the Executive Instructions dated 17.12.1998 and do not over-ride the same.
Counsel for the appellants heavily relied on the Constitution Bench decision of this Court in D.S. Nakara v. Union of India (1983) 1 SCC 305 where this Court at Page 345 SCC observed that "liberalised pension scheme becomes operative to all pensioners governed by 1972 Rules irrespective of the date of retirement."
Nakara's case (supra) has been distinguished by this Court in State of Punjab & Ors. v. Boota Singh & Anr. (2000) 3 SCC 733; State of Punjab & Anr. v. J.L. Gupta & Ors. (2000) 3 SCC 736; State of West Bengal and Anr. v. W.B. Govt. Pensioners' Association & Ors. (2002) 2 SCC 179; and State of Punjab & Ors. v. Amar Nath Goyal & Ors. (2005) 6 SCC 754. Nakara's case (supra) was a case of revision of pensionary benefits and classification of pensioners into two groups by drawing a cut off line and granting the revised pensionary benefits to employees retiring on or after the cut- off date. The criterion made applicable was "being in service and retiring subsequent to the specified date". This Court held that for being eligible for liberalised pension scheme, application of such a criterion is violative of Article 14 of the Constitution, as it was both arbitrary and discriminatory in nature. It was further held that the employees who retired prior to a specified date, and those who retired thereafter formed one class of pensioners. The attempt to classify them into separate classes/groups for the purpose of pensionary benefits was not founded on any intelligible differentia, which had a rational nexus with the object sought to be achieved. The facts of Nakara's case (supra) are not available in the facts of the present case. In other words, the facts in Nakara's case are clearly distinguishable.
In Indian Ex-Services League v. Union of India (1991) 2 SCC 104, this Court distinguished the decision in Nakara's case (supra) and held that the ambit of that decision cannot be enlarged to cover all claim by retirees or a demand for an identical amount of pension to every retiree, irrespective of the date of retirement even though the emoluments for the purpose of computation of pension be different. In K.L. Rathee v. Union of India (1997) 6 SCC 7, this Court, after referring to various judgments of this Court, has held that Nakara case cannot be interpreted to mean that emoluments of persons who retired after a notified date holding the same status, must be treated to be the same. In our view, therefore, the ratio in Nakara's case (supra) is not applicable in the facts of the present case. Lastly, it is contended that against the decision of the Delhi High Court, an SLP was dismissed by this Court on 8.7.2004 and, therefore, the doctrine of merger applies. It is not disputed that the SLP was dismissed in limine without a speaking order. This question has been set at rest by a three- Judge Bench of this Court in Kunhayammed & Ors. v. State of Kerala & Anr. (2000) 6 SCC 359, where this Court after referring to a two-Judge Bench, of this Court in V.M. Salgaokar & Bros. (P) Ltd. v. CIT (2000) 5 SCC 373 held at page 375 (para 22) SCC as under:
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"22. We may refer to a recent decision, by a two- Judge Bench, of this Court in V.M. Salgaokar & Bros. (P) Ltd. v. CIT (2000) 5 SCC 373 holding that when a special leave petition is dismissed, this Court does not comment on the correctness or otherwise of the order from which leave to appeal is sought. What the Court means is that it does not consider it to be a fit case for exercising its jurisdiction under Article 136 of the Constitution. That certainly could not be so when appeal is dismissed though by a non-speaking order. Here the doctrine of merger applies. In that case the Supreme Court upholds the decision of the High Court or of the Tribunal. This doctrine of merger does not apply in the case of dismissal of a special leave petition under Article 136. When appeal is dismissed, order of the High Court is merged with that of the Supreme Court. We find ourselves in entire agreement with the law so stated. We are clear in our mind that an order dismissing a special leave petition, more so when it is by a non-speaking order, does not result in merger of the order impugned into the order of the Supreme Court."
Therefore, when the special leave petition is dismissed by the Supreme Court under Article 136 of the Constitution, the doctrine of merger is not attracted.
For the reasons aforestated, the view taken by the Madras High Court that the clarificatory Executive Instructions in O.M. dated 11.5.2001 are an integral part of the O.M. dated 17.12.1998 clarifying the Policy Resolution of the Government dated 30.9.1997 and do not over-ride the original O.M. dated 17.12.1998 is correct law and it is, accordingly, affirmed. The view taken by the Delhi High Court that O.M. dated 11.5.2001 over-rides the original O.M. dated 17.12.1998 and creates two classes of pensioners does not lay down the correct law and is, hereby, set aside. The net result is that the Civil Appeal Nos. 3174 and 3173 of 2006, preferred by the pensioners, are dismissed and the Civil Appeal Nos. 3188, 3189 and 3190 of 2006, preferred by the employer Union of India, are allowed. The Judgment and order of the Madras High Court dated 29.4.2005 is affirmed. The Judgment and Orders of the Delhi High Court dated 17.8.2005, 5.9.2005, 10.11.2005 and 3.8.2005 are set aside.
Parties are asked to bear their own costs."
7. It has to be noted at the outset that the pay revision and revision of pension based on the 6th CPC have been brought into effect by the decisions of Government of India. Vide office memorandum No. 38/37/08- P&PW(A), dated 01.09.2008 the Government's decision on the recommendations of the 6th CPC revising the pension of number of pensioners/family pensioners was conveyed. Paragraph 4.2 reads as follows:
"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+ 7 and above scales, this will be fifty percent of the minimum of the revised pay scale."
(emphasis supplied)
8. The most important portion of the aforequoted OM which tends to escape from the sight of a casual reader is that the revised pension shall in no case be lower than 50% of the minimum of the pay in the pay band plus grade pay corresponding to the pre-revised pay scale from which the pensioner had retired. One can not lose sight of the importance of the wordings of paragraph 4.2 because revision of pay and revision of pension is within the policy domain of the Government. When the Government of India's decision on the 6 th CPC recommendations has been made clear in OM dated 1.9.2008 every revision relating to pre-2006 pensioner has to go by paragraph 4.2 (supra) of the said OM. In this context we feel it appropriate to quote relevant portion of the order passed by the co-ordinate Bench of this Tribunal at Chandigarh on 01.09.2016 in OA No. 060/00912/2015 which reads as follows:
"8. According to OMs dated 27.10.1997 and 17.12.1998 for revision of pension w.e.f. 01.01.1996, pension has to be revised according to fitment formula given therein and then the revised pension, if less than the minimum for the corresponding revised pay scale, was to be stepped up to the said minimum amount. Similarly, w.e.f. 01.01.2006 according to OM dated 01.09.2008 revised pension has to be fixed as per fitment formula given in para 4.1 thereof, and then as per para 4.2 thereof, the revised pension was in no case to be lower than 50% of minimum of the pay in the Pay Band + Grade Pay corresponding to the pre-revised scale from which the pensioner had retied. It is, thus, manifest from the bare perusal of these OMs that only pension had to be revised. There is no provision in the OMs for notional fixation of revised pay of the pensioners in the corresponding revised pay scales and then revising their pension. On the contrary, formula for fixing revised pension directly has been given in the OMs. According to the said formula, existing pension along with dearness pension etc. has to be taken into consideration and then some fitment weightage has to be given to arrive at the revised pension. For this purpose, even reference to corresponding revised pay scale is not there in the OMs. Reference to corresponding revised pay scale comes in the context of minimum pension. The revised pension should not be lower than 50% of minimum revised pay scale/Pay Band + 8 Grade Pay corresponding to pre-revised pay-scale. In this context only, the revised pay-scale/Pay Band + Grade Pay comes into picture. There is no reference at all to notional fixation of pay in the corresponding revised pay- scale/Pay Band + Grade Pay for revising the pension of pensioners who had retired prior to 01.01.1996/01.01.2006. Thus, the very basis of claim of the applicants that their pay has to be notionally fixed in the in the revised pay- scale (for revising their pension) does not exist in any of the relevant OMs. It is, thus, manifest that revised pension of the applicants has been rightly fixed by the respondents w.e.f. 01.01.1996 and 01.01.2006, as detailed in chart (Annexure R-6)"
9. This Tribunal is of the view that the aforesaid decision is squarely applicable in the instant case also. In the light of the above discussion, we hold that the OA has no merits and is only to be dismissed. We do so. No costs.
(ASHISH KALIA) JUDICIAL MEMBER "SA"
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Original Application No. 180/00115/2018 APPLICANTS' ANNEXURES Annexure A1 - True copy of the certificate No. SAY-108 dt. 23.7.1987 issued by the 2nd respondent.
Annexure A2 - True copy of the letter NO. ST/1/RTIA/GEN/2015 dt.
6.9.2016 along with extract of Gradation list and its covering letter.
Annexure A3 - True copy of the PPO No. 4567/LPS/TVM. Annexure A4 - True copy of the revised PPO dated 16.12.09 issued by the 1st respondent.
Annexure A5 - True copy of the letter No. 9994/Pen/Genl/SAIN-237/09- 10 dated 7.1.2010 issued by 1st respondent.
Annexure A6 - True copy of the OM No. 2012/2013-PCC dt. 24.10.2017 issued by the Ministry of Communications, Department of Posts.
Annexure A7 - True copy of the fitment table.
Annexure A8 - True copy of the order dt. 16.8.2013 in OA No.
715/2012.
Annexure A9 - True copy of the order of the R.P.(C) No. 2565/2015 in
SLP © No. 6567/2015.
Annexure A10 - True copy of the common order dt. 31.7.2015 in OA No. 674/2014.
Annexure A11 - True copy of the OM No. 38/37/08/P&PW dt. 6.4.2016 issued by the 5th respondent.
Annexure A12 - True copy of the revision authority No. Pen/C.No./PPO No. 4567/LPR dt. 16.3.2016.
Annexure A13 - True copy of the revision authority No. Pen/C.No./PPO.
No. 4567/LPR dt. 3.5.2016.
Annexure A14 - True copy of the Contempt Petition No. 98/2015 in OA No. 674/2014 dt. 29.8.2016.
10RESPONDENTS' ANNEXURES Annexure R1 - True copy of the letter No. B2/8/72 dated 18.7.1972. Annexure R2 - True copy of the letter No. B5/8/(IC) dated 11.1.1973. Annexure R3 - True copy of the letter No. BB/43 dated 10.1.1973. Annexure R4 - True copy of the letter No. BB/TBOP dated 28.7.1987. Annexure R5 - True copy of the letter No. SAV-108 dated 23.7.1987. Annexure R6 - True copy of the letter No. SAV-108 dated 25.7.1989. Annexure R7 - True copy of the letter No. Penl/Gen/K.V. Unnithan/H/4729 dated 13.8.2018.
Annexure R8 - True copy of the letter No. PT Cell/JC-105945-H/PA-1 dated 3.11.2018.
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