Central Administrative Tribunal - Hyderabad
P Suryanarayana Murthy vs South Central Railway on 19 August, 2024
OA/631/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH
OA/021/0631/2021
HYDERABAD, this the 19th day of July, 2024
Hon'ble Dr. Lata Baswaraj Patne, Judicial Member
P. Venkata Ramana (Died per LR)
P. Suryanarayana Murthy, S/o. P. Venkata Ramana,
Aged about 55 years, R/o. Flat No.403, Vijayponne Enclave,
Sainathpuram, AS Rao Nagar, Hyderabad.
... Applicant.
(By Advocate: Dr. A Raghu Kumar)
Vs.
1. The Director (Admn) (Audit),
South Central Railway, Secunderabad.
2. The FA & CAO (Pension),
South Central Railway, Secunderabad.
3. The Director General of Audit,
South Central Railway, Secunderabad.
... Respondents
(By Advocate: Mr. D Satyaveer, Sr. PC for CG
Mr. K Ajay Kumar, for respondent no. 1&3)
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OA/631/2021
ORAL ORDER
(As per Hon'ble Dr. Lata Baswaraj Patne, Judicial Member) Heard Dr. A Raghu Kumar, learned counsel, appeared for the applicant and Mr. D Satyaveer, learned counsel, appeared for respondent no.1 to 3 and Mr. K Ajay Kumar, learned counsel, appeared for the respondent no.4.
2. By this Original Application, the applicant is seeking the following relief(s):
"to call for the records pertaining to the respondents Lr.No.AU/A/Pension/PVR dated 13.08.2019 and Lr.No.AU/A/Pension/PVR dated 14.10.2019 rejecting the claim of the applicant for fixation of pension at the rate of 50% of last pay drawn and illegal holding that the fixation of pension is properly fixed at Rs.4234/- at the time of retirement of the applicant as on 07.10.1997 and quash and set aside the same as illegal, arbitrary and violative of Article 14 and 16 of the Constitution of India and rules on the subject matter and consequently declare that the applicant is entitled for Rs.4288/- as the last pay drawn of the applicant was Rs.8575/- as per the orders of the 6th and 7th CPC on the subject matter with all consequential benefits., in the interest of justice, and be pleased to pass such other order or orders as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case."
3. Brief facts of the case in a nutshell are as follows:
The applicant joined the Railway Department on 20.07.1964 and retired while working as an Assitant Audit Officer on 06.10.1997 on voluntary retirement. The last pay drawn by the applicant was Rs.8575/- and had this been taken into account, his pension would be fixed at Rs.4288/- being 50% of the basic pay. However, at the time of the retirement of the applicant on 07.10.1997 the rules provided for taking 10 monthly average emoluments and fixing the pay as per the rules. Thus the basic pension of the applicant was fixed at Rs.4234/-. The Government of India, Ministry of Personnel and PG and Pension, vide OM dated 03.10.2008 has uniformly decided that the payment of pension will be at the rate of 50% of the last pay drawn or the Page 2 of 10 OA/631/2021 average of 10 months of pay, whichever is more beneficial to retiring employees. Further, it was clarified that the pension of the pre-2006 pensioners should also be revised w.e.f., 01.01.2006. Further, the Government of India, DOP&PW OM dated 06.04.2006, decided to revise the pension of all the pre-2006 pensioners in such a way that it shall not be less than 50% of the minimum of the pay in the pay band, even if the retiring employee had qualifying service of less than 33 years at the time of retirement. Thus, it is very clear that the last pay of the applicant being Rs.8575/-, the pension should be fixed at the rate of Rs.4288/-. As a result, after the revision of the pension under 7th CPC, the pension of the applicant should be fixed at Rs.29300/-, whereas he was granted a pension at Rs.26800/-. The applicant submitted representations dated 27.06.2017 and 14.08.2018 for the same and as the same were not answered, the applicant submitted a detailed representation dated 16.07.2019. The respondents issued the impugned order in Lr.No.AU/A/Pension/PVR dated 13.08.2019 and Lr.No.AU/A/Pension/PVR dated 14.10.2019 rejected the claim of the applicant. It is the contentions of the applicant that the Principal Bench of the Tribunal on 01.11.2011 allowed OA No.655 of 2010 by declaring that the pre-
2006 pensioners are entitled to re-fixation of pension w.e.f. 01.01.2006 on the accepted recommendations of the 6th CPC notified through the resolution dated 29.08.2008. Subsequently, the matter went to the High Court of Delhi and the Supreme Court wherein the decision of the Principal Bench has been upheld. In fact, the Apex Court relied on its own judgment in Union of India vs. Venugopalan Nair in CC No.2001-2002/2015 and decided the matter finally. Following the same this Tribunal also allowed certain OAs and the same were challenged before the Hon'ble High Court of Telangana and the Page 3 of 10 OA/631/2021 Hon'ble Court in its order dated 21.08.2019 in WP No.17768 of 2019 and batch dismissed the writ petition filed by the department. Further, the same was carried out to the Apex Court in SLP No.27255/2020 and the same was dismissed by the Apex Court on 22.06.2021. Despite the same impugned orders were passed by the respondents on 21.08.2019 and 14.10.2019. Being aggrieved, the applicant filed the present O.A.
4. After notice, the respondents have appeared through their counsel, filed a detailed reply and opposed the relief on the ground that the original applicant, Late P. Venkata Ramana, was appointed as Clerk/Typist in this office on 20.07.1964. He retired voluntarily from service on 07.10.1997 (FN) (Annexure-R1) while officiating as Assistant Audit Officer. He rendered a qualifying service of 33 years, 02 months and 13 days after deducting 5 days of non-qualifying service during his service period. The net qualifying service is restricted to 33 years, which is the maximum allowed for drawing full pension. He was drawing the pay of Rs. 8,575/- (Annexure-R2) in the scale of Rs. 7,450-225-11,500 of Vth CPC. His pension was fixed at Rs. 4,234/-, duly calculating the emoluments drawn during the last 10 months, i.e. from 08.12.1996 to 30.04.1997 (04 months and 24 days @ pay drawn of Rs. 8,350/-) and from 01.05.1997 to 06.10.1997 (05 months and 06 days @ pay drawn of Rs. 8,575/-). The total 10 months emoluments is Rs. 84,670/- and the average emoluments of 10 month is being Rs. 8,467/-, his pension is fixed at Rs. 4,234/- that is 50% of the average emoluments. This is correctly fixed duly reckoning from the working tables given on implementation of Vth CPC with notional effect from 19.02.2003. On implementation of VI CPC (Annexure-R2), his pension was re-fixed at Rs. 9,570/- in the scale of Rs. 9,300-34,800 G.P. Page 4 of 10 OA/631/2021 Rs. 4,800 with effect from 01.01.2006 duly taking into consideration his pension already fixed at Rs. 4,234/-. Consequent on implementation of VIIth CPC (Annexure-R3), his pension was fixed at Rs. 26,800/- with effect from 01.01.2016 onwards. Aggrieved over the fixation of pension at Rs. 4,234/-, the applicant has submitted a representation dated 16.07.2019 (Annexure-R4) stating that as per GoI OM dated 03.10.2008 (Annexure- R5), he is entitled to 50% of average emoluments received during the last 10 months or the last pay drawn, whichever is more beneficial. The OM dated 03.10.2008 is applicable to the employees who retired on or after 01.01.2006 onwards. Hence, his representation was rejected, stating that the pension fixed at Rs. 4,234/- as per the Vth CPC orders is correct, legal and valid. It is pertinent to mention here that in Clarification I (ii) of OM dated 03.10.2008 it was stated that the pension of the post-01.01.2006 pensioners shall not be lower than 50% of the sum of the minimum of the pay in the Pay Band and the Grade Pay and the said orders are not related to the case of the applicant. The applicant has wrongly interpreted the orders of VIth CPC. Hence, the same was rejected in this Office letters dated 13.08.2019 (Annexure-R6) and 14.10.2019 (Annexure-R7) respectively. Therefore, the applicant is not entitled for the relief sought in the OA.
5. During the pendency of the OA, the Original applicant, Shri P. Venkata Ramana, died on 13.10.2021 and therefore, his son Shri P. Suryanarayana Murthy came on record vide order in MA/105/2022.
6. Heard both sides and perused the records.
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OA/631/2021
7. The learned counsel for the applicant argued on the point that, as per the CCS (Pension) Rules, whenever there is a recommendation, that has to be implemented retrospectively. As such, in the matter of the applicant, though his pension has been re-fixed w.e.f. 01.01.2006, the applicant who retired on 07.10.1997 voluntarily, the benefit of the revised pension has not been extended from the date of retirement. The applicant has submitted his detailed representation on 16.07.2019. However, the same has not been considered in accordance with the CCS Pension Rules as well as the OM/Circulars issued by the DOP&PW time and again.
8. On the other hand, the learned counsel for respondent no.4 submitted that when the applicant retired from service voluntarily, the same rules are applicable for the applicant. Before amendment, the CCS (CCA) Pension Rules, Para 49, reads thus:
"49. Amount of Pension 2 (1) In the case of a Government servant retiring in accordance with the provisions of these rules before completing qualifying service of ten years, the amount of service gratuity shall be calculated at the rate of half month's emoluments for every completed six monthly period of qualifying service.
(2) (a) In the case of a Government servant retiring in accordance with the provisions of these rules after completing qualifying service of not less than thirty-three years, the amount of pension shall be calculated at fifty per cent of average emoluments, subject to a maximum of four thousand and five hundred rupees per mensem.);
(b) in the case of a Government Servant retiring in accordance with the provisions of these rules before completing qualifying services of thirty-
three years, but after completing qualifying service of ten years, the amount of pension shall be proportionate to the amount of pension admissible under Clause (a) and in no case the amount of pension shall be less than [Rupees three hundred and seventy-five] per mensem;
(c) notwithstanding anything contained con in Clause (a) and Clause (b) the amount of invalid pension shall not be less than the amount of family pension admissible under sub-rule (2) of Rule 54."
The same has to be considered, which applies in the case of the applicant since he retired way back in the year 1997, followed with Clauses 2(a) & 2(b) Page 6 of 10 OA/631/2021 of Rule 49 since he took voluntary retirement before completing qualifying service of 33 years. But, after completing the qualifying service of 10 years, the amount of pension shall be proportionate to the amount of pension admissible under Clause (a) and in no case shall the amount of pension be less than [Rupees three hundred and seventy-five] per mensem. The said amount of pension has to be calculated from the average emoluments and the average emoluments mean as quoted in Rule 34, and the same shall be determined with reference to the emolument drawn by the government servant during the last (10 months) of his service. The learned counsel for the respondent no. 4 further relies upon the OM dated 03.10.2008 issued by the DOP&PW in the implementation of the government's decision on the recommendation of the VIth Central Pay Commission vis-à-vis revision of provisions regulating pension/gratuity/commutation of pension/family pension/disability pension/ex-gratia lump-sum compensation. Further, the DOP&PW has issued an OM dated 06.04.2016 in respect of the revision of the pension of pre-2006 pensioners and delinking of revised pension from qualifying service of 33 years. A clarification was issued vide DOP&PW OM dated 03.10.2008 that the pension calculated at 50% of the minimum of pay in the pay band plus grade pay would be calculated at the minimum of the pay in the pay band (irrespective of the pre-revised scale of pay) plus the grade pay corresponding to the pre-revised pay scale. Thereby, referring to the orders issued by the DOPT dated 21.01.2013 for stepping up the pension of pre-2006 pensioner w.e.f. 24.09.2012 to 50% of the minimum of pay in the pay band and grade pay corresponding to the pre-revised pay scale from which the pensioner retired. As well as considering further Paras from the OM dated 01.09.2008, the matter has been examined with the Ministry of Finance (Department of Page 7 of 10 OA/631/2021 Expenditure). It has now been decided that the revised consolidated pension of pre-2006 pensioners shall not be lower than 50% of the minimum of the pay in the Pay Band and the grade pay (wherever applicable) corresponding to the pre-revised pay scale as per fitment table without pro-rata reduction of pension even if they had qualifying service of less than 33 years at the time of retirement. Accordingly, Para 5 of this Department's OM of even number dated 28.01.2013 stand deleted. The arrears of revised pension would be payable w.e.f. 01.01.2006. Followed with the instruction issued by the DOPT in OM dated 06.04.2016, vide order dated 19.09.2016, the pension of the applicant in the category of pre-2006 pensioners has been revised as his basic pension on pre-2006 in pre-revised is Rs.4234/- and after revision it is Rs.4288/-. Accordingly, the basic pension as on 01.01.2006 was pre-revised Rs.9570/- and after revision Rs.9692/-. The fixation of pension has been done in accordance with the VIth CPC recommendations followed with the subsequent Circulars as well as OM's and effect has been given from 01.01.2006 as per the instructions dated 06.04.2016. As such, the applicant cannot claim the benefit under the amended CCS Pension Rules as the applicant's pension was fixed correctly.
9. It is to be noted that it is not in dispute that the applicant retired voluntarily in the year 1997 and his pension was fixed, followed with the Rule of CCS (Pension) Rules,. As under Rule 3(b), read with the Rule 34, average emolument has been determined and the same has been fixed and paid to the applicant. The applicant has not raised any objection in respect of the pension, which was sanctioned in the year 1997. Subsequently, on implementation of VIth CPC, the applicant has submitted representation dated 16.07.2019. The Page 8 of 10 OA/631/2021 paragraphs from the said representation have been extracted for reference as under:
"In the month of my retirement i.e., October 1997 my pay was fixed at Rs.8575 (duly upgraded) and pension was fixed at Rs.4234/- duly taking into account, 10 monthly average emoluments at Rs.8467/- However, my last pay drawn was Rs.8575/- and had this been taken into account, the pension would be fixed at Rs.4,288/-. Based on my representation, when the matter was referred to FA&CAO/SCR/SC for suitably revising the pension and issued the revised PPO, it was replied that pension was fixed as per the Rules in force and cannot be fixed at Rs.4,288/- as the Rules at the time did not permit the same. This contention of the railway administration does not seem to be in conformity with the instructions issued by the Department of Pension and Pensioners' Welfare from time to time. With a view to authenticating my stand, I am compiling hereunder, the various instructions issued from time to time, in regard to the fixation of pension of pre-2006 pensioners. د However, as per the Government of India, Ministry of Personnel & PG & Pension OM F.No. 38/37/08-PPW(A) pt.ll dated 03.10.2008, the payment of Pension at 50% of the average emoluments received during the last 10 months or the Pay last drawn whichever is more beneficial to retiring employee should be considered. Further, it was clarified in July 2015 that the pension of Pre- 2006 Pensioners should be revised w.e.f. 01.01.2006. Furthermore, Government of India, Ministry of Personnel & PG & Pension OM No. 36/37/08-PPW(A) dated 06.04.2016 it was decided that the revised consolidated pension of Pre- 2006 Pensioners shall not be less that of 50% of the minimum of the Pay in the Pay Band even if the retiring employee had qualifying service of less than 33 years at the time Retirement. Thus, the intention of the Government to grant Pension at 50% of the emoluments or 50 per cent of the Pay whichever is more beneficial to the Pensioner should be considered for sanction has been clearly established.
Thus, it may be pointed out, that though the last pay entitled i.e, Rs,8,575/- is to be reckoned for calculating the pension, only average emoluments were taken into account and not revised even after the issue of clear instructions in April, 2016 ibid. Thus, non- implementation of the revised orders is resulting in great injustice to me. As a result, after revision of Pension under 7th CPC, injustice was continued, and I was sanctioned a Pension of Rs.26800 whereas the pension as per the above guide lines should be fixed as Rs.29300.
As I am an old Pensioner with no assets and spouse expired due to ill health, I request to arrange to get the matter examined at the earliest and the revised PPO issued for which act of kindness I shall ever remain obliged."
It is to be noted that, admittedly the CCS Pension Rules, prior to amendment are applicable in the matter of the applicant as the applicant is a pre-2006 pensioner. Further, Para 6 of the OM dated 06.04.2016 issued by DOP&PW clarifies the implementation and the same is extracted as under:
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OA/631/2021 "3.Orders were issued vide this Department's OM of even number dated 28.1.2013 for stepping up of pension of pre-2006 pensioners w.e.f. 24.9.2012 to 50% of the minimum of pay in the pay band and grade pay corresponding to pre-revised pay scale from which the pensioner retired. Para 5 of this OM pro that in case provides the consolidated pension/family pension calculated as per para 4.1 of O.Μ. No.38/37/08- P&PW (A) dated 1.9.2008 is higher than the pension/family pension calculated in the manner indicated in the O.M. dated 28.1.2013, the same (higher consolidated pension/family pension) will continue to be treated as basic pension/family pension.
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6.The matter has been examined with the Ministry of Finance (Department of Expenditure). It has now been decided that the revised consolidated pension of pre-2006 pensioners shall not be lower than 50% of the minimum of the pay in the Pay Band and the grade pay (wherever applicable) corresponding to the pre-revised pay scale as per fitment table without pro-rata reduction of pension even if they had qualifying service of less than 33 years at the time of retirement.
Accordingly, Para 5 of this Department's OM of even number dated 28.01.2013 would stand deleted. The arrears of revised pension would be payable w.e.f. 01.01.2006."
The applicant was well within the knowledge of the said OM dated 06.04.2016 and he has correctly understood. However, he is claiming the said benefit from the date of his retirement, which is against the recommendation of the VIth CPC and further clarification issued by the respondents department. Therefore, the claim of the applicant does not sustain in the eyes of the law as well as the recommendation of the VIth CPC and OM dated 06.04.2016. Therefore, no interference is called for in respect of the applicant.
10. Accordingly, the O.A. is dismissed being devoid of merits. No order as to costs.
(DR. LATA BASWARAJ PATNE) JUDICIAL MEMBER /SB/ Page 10 of 10