Central Administrative Tribunal - Hyderabad
A S Y Sarma vs Accountant General on 16 November, 2018
we
DAs S1S/15. & betch
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH: HYDERABAD
Original Application Nos.518/2015, 4012014, 42/2018, 404/2015, 4823/2015,
SO8/2015, TIG2QOIS, TET/I015, 718/2015, 807/2015,
1039/2015 & 1645/2018
Reserved on: 24.08.2018, 10,09,2018
SEAN
Order pronounced on: 16.11.2018
O.A.No.020 /SI8 of 2015
Rh
x
X
Between: &
A. Venkata Rao, S/o. late Venkateswara Rao,
Retired Audit Officer, Aged 74 years,
Rio. H.No.12-2-828/A/34, Amba Gardens,
Mehdipatnam, Hyderabad ~ $00 028.
Applicant
And-
Union of India, represented by
i. The Principal Accountant ~ General, GS & SA,
Andhra Pradesh & Telangana,
Hyderabad - 500 004,
2. The Comptroller & Auditor General of India,
10, Bahadur Shah Zafar Marg, New Delhi ~ 110 002.
fas
The Secretary to Govt. of India,
Ministry of Personnel, Public Grievances & Pensions,
Department of Pensions and Pensioners' Welfare,
Lok Nayak Bhavan, Khan Market, New Delhi -- 110 003,
. Respondents
Counsel for the Applicants .. MF. Krishna Swamy
Counsel forthe Respondents ... Mr. V. Vinod Kumar, Sr. CGSC
Mrs. K. Ralitha, Sr. CGSC for R-3
O.A.No.021 /461 of 2015
Between:
Sat. V. Prema, W/o. K.S. Mohan Raa,
Aged $3 years, R/o. Hi No. 6-3-SO8/S 1/7,
Anand Nagar Colony, Khairatabad, Hyderabad ~ $00 004.
And
an
ye
ra econ
ar oa
. ad ro a
apa La .
fee
& ; GAs SiB/45 & batch
The Union of India, represented hy
i. The Accountant -- General, A&E,
Andhra Pradesh & Telangana,
Hyderabad ~ $00 004,
b
The Comptroller & Auditor General of India,
10, Bahadur Shah Zafar Marg, New Delhi -- 110 602.
3. The Sezeretary to Govt. of India,
Ministry of Personnel, Public Grievances & Pensions,
Department of Pensions and Pensioners' Welfare,
Lak Nayak Bhavan, Khan Market, New Delhi ~ 110 003.
.. Respondents
Counsel for the Applicants > Mre. Krishna Swamy
Counsel forthe Respondents 9... Mr. V. Vined Kumar, Sr. CGSC
O.A.No.021 402 of 2015
Between: See
D.V. Venkat Rao, S/o. late Sri D. Ammanna Sastry,
Aged 80 years, R/o. H. No. 12-2-823/4/40,
Santosh Nagar, Mehdipatnam, Hyderabad ~ 500 028.
Appleant
And
The Union of India, represented by
1, The Principal Accountant ~ General, GS & SA,
Andhra Pradesh & Telangana,
Hyderabad -- 500 004, See
2. The Comptroller & Auditor General of India,
10, Bahadur Shah Zafar Marg, New Delhi -- 110 002,
3. The Secretary to Govt. of India,
Ministry of Personnel, Public Grievances & Pensions,
Department of Pensions and Pensioners' Welfare,
Lok Nayak Bhavan, Khan Market, New Dethi ~ 110 003,
. . Respondents
Counsel for the Applicant .. Mr. Krishna Swamy
Counsel forthe Respondents... Mr. V. Vinod Kumar, Sr. COSC
tak
m7
Se
if
Ui
fo
&
oe
in
Se
ios
Pye]
a6
oF
O.A.No.021 /404 of 2015
Between:
E. Krishna Swamy, S/o. late Ve pnkatarama: shee
Aged 78 years, Rio. H. No, 12-2-823/As56,
Santosh Coop. Hsg. Society, Mehdipatnany, Hyderabad -- S00 028,
Applicant
And
The Union of India, represented by
1, The Principal Accountant ~ General, GS & SA,
(Formerly Crvail Audit) Andhra Pradesh & Telangana,
Hyderabad -- 300 004,
bs
The Comptroller & Auditor General of India,
10, Bahadur Shah Zafar Mare, New Dethi -- 110 002.
3, The Seeretary to Govt. of India,
Ministry of Personnel, Public Grievances & Pensions,
Department af Pensions and Pensioners' Wellare,
Lok Nayak Bhavan, Khan Market, New Delhi ~ 116 063.
.. Respondents
Counsel for the Applicant . Mr. Krishna Swarny, Party in Person
Counsel forthe Respondents .. 9 Mr, V. Vinod Kumar, Sr. CGSC
O.A.No.021 /482 of 2018
Between:
KV. Ramana Murthy, S/o. late Narasimha Murty,
Aged 81 years, Rfo. H. No, 10-1-1 8/51,
Shyam Nagar, A.C, Guards, Hyderabe xd ~ 500 004.
. Applicant
And
The Union of India, represented by
1, The Principal Accountant ~ General, GS&SA,
Andhra Pradesh & Telangana,
Hyderabad -- 500 004.
bea
The Comptroller & Auditor General of India,
10, Bahadur Shah Zafar Mare,
New Delhi -- 110 002.
ages
*
t VAS ALY £5. BION
wa
3. The Secretary to Govt. of India, N
Ministry of Personnel, Public Grievances & Pensions,
Department of Pensions and Pensioners' Welfare, ,
Lok Nayak Bhavan, Khan Market, New Delhi ~ 110 0053.
| , Respondents
Counsel for the Applicant .. Mr. Krishna Swamy
Counsel forthe Respondents ... 9 Mr. V. Vinod Kumar, Sr. CGSC
O.A.No.{121 (868 of 2015
Retween:
AVY, Prasada Rao, S/o. late Ramanaiah,
Retd. Senior Audit Officer, aged 74 vears,
Rio. H. No. 12-2-828/ 4/33, Amba Gardens,
Mehdipatnam, Hyderabad ~ 800 028.
Applicant
And
he
The Union of India, represented by
1. The Principal Accountant ~ General, GS&SA,
Andhra Pradesh & Telangana,
Hyderabad -- 500 004,
2. The Comptroller & Auditor General of India,
10, Bahadur Shah Zafar Mare, New Delhi ~ 110 002.
The Secretary to Govt. of India,
Miurustry of Personnel, Public Grievances & Pensions,
Department of Pensions and Pensioners' Welfare, ~
Lok Nayak Bhavan, Khan Market, New Delhi -~ 110 003,
Cea
Counsel for the Applicants .. MrE. Krishna Swamy
Counsel for the Respondents ... Mr, V. Vinod Kumar, Sr. CGSC
O.A.No.021 /716 of 2015
Between:
B. Krishna Murthy, S/o. late BLLN. Rao,
Retd. Senior Audit Officer, aged 73 years,
Rio. Plot No. 163, Padmanabha Nagar, Hyderabad ~ 500 G28.
Applicant
And
OSs SIS/15 & batch
The Union of India, represented by
wt
SAN
i. 'The Principal Accountant ~ General, S&S, 4.
Andhra Pradesh & Telangana, Hyderabad ~ S00 004.
2. The Comptroller & Auditor General of India,
10, Bahadur Shah Zafar Marg, New Delhi -- 110 002.
3. The Secretary to Govt. of India,
Ministry of Personnel, Public Grievances & Pensions,
Department of Pensions and Pensioners' Welfare,
Lok Nayak Bhavan, Khan Market, New Delhi ~ 110 003,
.. Respondents
Counsel for the Applicants .. Mr. Krishna Swamy
Counsel forthe Respondents =... Mr. V. Vinod Kumar, Sr. CGSC
0.8 Nod2t /717 of 2015
Between:
Y.C. Mastan Rae, S/o. fate | Y. Subba Rao,
Retd. Senior Audit Officer, aged 74 years,
Réo. H. No. 6-3-596/24/3,
Sri Venkataramana C 'olony, K Khairatabad, Hyderabad ~ 500 004,
Applicant
And
The Union of India, represented by
L The Principal Accountant -- General, GS&SA,
Andhra Pradesh & Telangana,
Hyderabad -- 500 004,
bo
The Comptroller & Auditor General of India,
10, Bahadur Shah Zafar Mare, New Delhi ~ 110 002.
3, The Secretary to Govt. of India,
Ministry of Personnel, Public Grievances & Pensions,
Department of Pensians and Pensioners' Welfare,
Lok Nayak Bhavan, Khan Market, New Delhi~ 110 003.
ees
. Respondents
Counsel for the Applicants .. Mr. Krishna Swamy
Counsel forthe Respondents oo... 9 Mr, V. Vinod Kumar, Sr. CGSC
ae:
Cos
Nv
4
eX
{ae ©
i eo Fc
@ OAs SIBSIS & batch
O.ANo.021 /718 of 2015
Between:
B. Serva Rao, S/o. late Kedareswatudu,
Retd. Senior Audit OMcer, aged Fa years Se
Rio. H. No, 9-4-84/64, Kakatiya Noga Y, re cai ~
S00 DOR,
panes
&
5
Applicant
And
The Union of India, represented by
I. The Principal Accountant ~ General, GS&SA,
Andhra Pradesh & Telangana,
Hyderabad ~ 500 004,
be
The Comptroller & Auditor General of India,
10, Bahadur Shah Zafar Marg, New Delhi -- 110 002,
ast
3
The Secretary to Govt. of India,
Ministry of Personnel, Public Grievances & Pensi Ons,
Department of Pensions and Pensioners' Welfare,
Lok Nayak Bhavan, Khan Market, New Dethi~ 110 003.
.. Respondents
Counsel for the Applicants .. Myr. E. Krishna Swamy .
Counsel forthe Respondents .. 9 Mr, V. Vinod Kumar, Sr. CGSC
O.A.No.021 /807 of 2018
Between:
A.S.Y. Sarma, S/o.A.V. Raghavaiah,
Retired Senior Audit Officer, Aged 73 years,
Rio, H.No. 12-2-709/65, Navodaya Colony,
Mehdipatnam, Hyderabad - 500 028.
Applicant
And
1, "Th he Principal Accountant ~ General, GS.& SA,
Andhra Pradesh & Telangana,
Hyderabad ~ S00 004.
Se The Camptroller & Auditor General of India,
10, Bahadur Shah Zafar Mare, New Delhi ~ 110 002.
Gas S1G/15 & batch
3, The Seeretary to Govt. of India,
Ministry of Personnel, Public Grievances & Pensions,
Department of Pensions and Pensicners' Wel fare,
Lok Nayak Bhavan, Khan Market, New Delhi - 110 003,
. Respondents
Counsel for the Applicant .. MME. Knishna Swamy
Counsel forthe Respondents ... 9 Mr, V, Vinod Kumar, Sr. CGSC
Mr. A. Radhakrishna, CGSC for R-]
O.A.No.021 {1039 of 2015
Between:
S. Rambhoopala Sarma, S/o. late §. Sttaramayya,
Retd. Senior Audit Officer, ¢ aged 78 years,
Rio, H. No, 12-2-418/9/1, Viswas Nagar,
Mahdipatnam, Hyderabad ~ 300 028.
Applicant
at And
The Union of India, represented by
1. The Principal Accountant ~ General, GS&: SA,
Andhra Pradesh & Telangana,
Hyderabad -- 800 004.
td
The Comptroller & Auditor General of India,
iG, Bahadur Shah Zatar Mare, New Delhi~ 110 002.
wa
The Secretary to Govt. of India,
Se Ministry of Personnel, Public Grievances & Pensions,
Department of Pensions and Pensioners' Welfare,
Lok Nayak Bhavan, Khan Market, New Delhi-- 110 003,
, Respondents
Counsel forthe Applicants .... Mr E. Krishna Swamy
Counsel forthe Respondents oo... 9 Mr. V. Vinod Kumar, Sr. CGSC
O0.A.No,021 /165 of 2018
Between:
N. Chittthabu, S/o. late Vardhanaiah,
Retd. Office Superintendent Gr. f,
aged 81 years, Rfo.5-12-2011,
Mangapuram Colony, Moulalt, Hyderabad -- 300 040,
Applicant
3 *
a
'OAs S18/15 & batch
And
The Union of India, represented by <
i, The FA & CAO, Office of the General Manager
East Coast Railway, Bhubaneshwar -- 751 O17,
2. 'The General Manager, East Coast Railway, Bhubaneshwar -- 751 017,
3. Senier Divisional Finance Manager,
East Coast Railway, Visakhapatnarn.
. Respondents
Counsel for the Applicant » Mr. E. Krishna Swamy
Counsel forthe Respondents... Mr. 8.M. Patnaik, SC for Railways
CORAM:
Hon'ble Mr. RV. Sudhakar w» Adember (Adnin,)
How ble Mr. Swarup Kumar Mishra... Member (Judl.)
COMMON ORDER
As per Hon'ble Mr. BV. Sudhakar, Member (Admin. i OA Nos, 518, 401, 402, 404, 482. S68, 716, 717, 7 18 & 807 of 2015 were taken up together for hearing upon remand from the Hon'ble High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh vide its order dt. 13.11.2017 in WP Nos. 25597/2016 & hatch. OA No, 1653/2018 filed against Railways, was heard along with the above batch with the consent of the counsel for both parties, OA No. 1039/2015, though heard separately on | 0.09,2018, is tagged on to the bateh at the request of counsel for parties. The issue involved in all the OAs and the respondents in all OAs except OA No, 1635/2018 being the same, a common order is being issued while working out the specific pension details of the each applicant after deciding on the Principle to be adopted to refix the pension as is and where required.
ra
2. The OAs have been filed for not granting pension @ 50% of the last pay drawn as per the recommendations of the 6" Central Pay Commission (CPO) and as per various judicial pronouncements on the subject.
££ DAs S1B/IS & batch 3, Brief facts of the case are that the appltoants On attaming superannuation, thelr pensions have been drawn based on the last 10 months average emoluments. The 6" CPC has recommended pension to be worked out on the last iQ months average emoluments or by taking $0 percent of last pay drawn and pay the pension whichever is beneficial of the two. The applicants pray for fixation of pension by adopting the formula of 50 percent of the last pay drawn, as it will give them some financial benefit and more so in the context of Govt. accepting this recommendation. The respondents are not re-fixing the pension as per 6" CPC and therefore the applicants had to necessarily approach the Tribunal to file the present OA,
4. 'The applicants bank on following judgments of the Honorable Supreme Court:
a) D.S.Nakara vs WOU -- €1983) 1 SCC 305 / 1983 ATR SC 136
b) V_Rasturi Vs Managing Director, State Bank of India-(1998) 8 SCC 30 ¢) Orders dt 12.2.2015 in SLP © 2001-2002/2015
d) Observations in CA no 11527 of 2014, dt. 18.12.2014.
| In view of the judicial pronouncements made in the above cited cases, the applicants contend that the matter has attained finality and therefore based on the same the applicants pension has to be revised w.e.f 1.12006. The applicants also elaim that the represemtations'made are not duly acted upon by the respondents.
5. The respondents state that the CPCs usually make recommendations separately for the pensioners and that the 6" pay commission also did the same. Aceardingly Central Civil Service (Revised Pay) Rules, 2008 were notified on 29.8.2008 and made effective from 1.1.2006. The pension calculation is given at para 5.1.47 of the CPC report. Govt accepted the recommendation as per 298.9008 notification but with a modification of fixing pension on a 10 OAS 518/95.% batch multiplication factor of 1.86 instead of 1.74 on the basic pension + dearness pension (wherever applicable) + dearness relief of 2496 as on 1.1.2006.
XS Thereafter memorandum dt 30.8.2008 was issued giving the fitment tables for calculating the revised pay for the serving employees on or after 1.1,2006. Government further released OM dt. 1.9.2008 for revision of pension of pre 2006 pensioners 'family pensioners ete. Another O.M dt 2.9.2008 was released for calculating the pension for those who retired after 1.1.2006. The respondents contend that the plea of the applicants to revise pension as per provisions of 6"
CPC from the date of his retirement is against Govt. orders and hence cannot be conceded to. The pension of the applicants was calculated based on OMs dt 3.10.2008 & 11.12.2008 and arrived at giving effect from 1.1.2006, They also point out that at no point of time the applicants have made any representations to examine their claims. The respondents point out that pre 2606 employees had challenged the OM dt 3.10.2008 in different Honorable Tribunals and Honorable High Courts stating that as per notification dt 29.8.2008 and OM dt 1.9.2008 the pension calculated should not be less than $0 percent of the scale in the pay band vis-a-vis the pre revised seale in which they retired plus the grade pay and not 50 percent of the minimum scale in the relevant pay band plus grade pay. Qne such OA 6534/2010 dealt by the Honorable Tribunal, Principal Bench in its order dated LL20GL1 has rejected the prayer of the applicants for full parity between the pre and post 1,1.2006 retirees, is the claim of the respondents. In D.S.Nakara Judgment the Honorable Apex court has held that pensioners form a class as a whole and cannot be micro classified by arbitrary, manipulated and unreasonable er eligibility criteria for the purpose of grant of revised pension, The Honorable Apex Court has held the words "who were in service on or after" are words of limitation introducing mischief and are vulnerable as denying equality and thus ° GAs S48/15 & ba this part of the sentence was declared as unconstitutional and struck down, It Wags held that Nberalized pension scheme will become operative te all pensioners governed by the 1979 rules, irrespective of the date of retirement. The respondents drew attention to paras 47 to 49 of the Hon'ble Supreme Court judgment in D.S Nakara and claimed that the Hon'ble Supreme Court has not held that the cut off date when an upward revision is introduced cannot be prescribed. The respondents have also quoted the following judgments in support of their averments.
a) Indian Ex-Servicemen league and other vs ULO.1 (1991) 2 SCC 104 b} Krishena Kumar v UO. , (1990) 4 SCC 207
c) Govt. af A.P and ors vs N. Subbarayudu and ors (2008) 14 SCC 702
d) State of Punjab and ors vs Amar Nath Goyal (2003) 6 SCC 754
e) State of Bihar vs Ramiee Prasad 1990 (3) SCC 368, Union of India and Anr vs Sudhir Kumar Jaiswal 1994 (4) SCC 212 (Para 5), Rama Rao and Ors vs All India Backward class bank employees welfare Association and ors 2004 (2) SCC 76 (para 31), University Grants Commission vs Sadhana Choudhary and ors 1996 (10) SCC $36 ete f} Divisional Manger, Aravali Golf Club and Anr Vs chander Hass and Anr 2008 (3) 3 JT 221 and in Govt. of A.P vs Smt P. Laxmi Devi, 2008 (2) 8 UT 639 es
g) Union of India vs $8.R Dhingra and ors (2008) 2 SCC 229 The respondents contend that based on the above judgments it cannot be said that fixation of cut off date of 1.1.2006 for the purpose of extending retire! benefits is arbitrary and tt is permissible for the Govt. to fix cut off date for introducing any new pension /retirement scheme or for discontinuing of any existing scheme. Thus the challenge made by the applicants based upon the MERS PE AD OE LR judgment in D.S.Nakara that pre -2006 retirees should be extended the same pensionary benefits as that of post 2006 retirees cannot be accepted. Moreover there are two different schemes for the pre 2006 and the post 2006 retirees.
Finally they have taken serious objection to the fact that without exhausting channels available they have directly approached the Tribunal and only on this point the OAs have to be dismissed,
6. Heard the learned counsel and perused the multifarious documents placed on record, 7, Lal, counsel for the applicants has vehemently argued that since it is a well settled legal principle to revise pension as per the various Judicial pronouncements of the Supreme Court and as per 6" CPC, the respondents be ch accordingly directed. The Id counsel also submits that any representation made does not yield any result since the general experience is that the office of CAG takes a routine stand that the matter has to be dealt by the concerned Ministry. The Ld. counsel for the respondents drew attention of the iribunal to different paragraphs of the Principal Bench Judgment on which the applicants are banking and claimed that the D.S.Nakara and other cases discussed therein do not provide the relief sought. Besides, there would be a heavy financial burden on the exchequer by acceding to the applicants request as many such cases would come up in the future. Further, the learned counsel pointed out that OMs referred to by the Respondents earlier were not considered by this Tribunal and that the consideration of the said OMs is essential to take a view on the issue, as was observed by the Hon'ble High Court for the State of Telangana and for the State or A.P. in WP No. 25597/2016 & batch.
8. In this regard it is to be stated that this Tribunal has earlier dealt with the OA Nos, 518/15, 401/15, 402/15, 404/15, 482/15, SO8/15, * od Leo FSIS & 807/15 and allowed them quoting the judgment ef Honourable the matter in the Honourable High Court for the State of Telangana and for the State of ALP. in the eited writ petitions. The Honourable Eheh Court after deliberating over the matter, has remitted it to the tribunal vide order dt. 13.11.2017 directing to consider the following aspects raised hy the respondents and then decide the issue afresh. As already mentioned supra, two other similar OAs are taken up with the said OAs with the consent of the parties.
1. The grievance of the Union of India is that they filed reply affidavits before the Tribunal, raising a specific contention that the pension of each s of the respondents was in fact caleulated as per the Government of India's Resolution dt 2.9.2008 and 3.10.2008 and that without reference to the specifie stand taken by the Union of India the Tribunal allowed the Original Applications.
2. Tribunal has not adjudicated as to whether the claim made by the Union of India in their reply at para 3° with reference to paras 8 and 9 of the OA was correct or not. The Tribunal has presumed the Government of India Resolution dt 29,8.2008 followed by the clarificatory Office Memoranda dt 2.9,2008, 3,10,2008 and 10.2.209 were not implemented.
sd . Tribunal could not have allowed the OAs on the ground that the issue is covered by the decision of the full bench of the Tribunal. It is seen from the orders passed by the Tribunal that all the orders are identically worded. Rach individual case ought to have been examined by the Tribunal to find out what was the benefit extended to the respondents, how the pension was fixed and whether the Government of India's Resolution and the Office Memorandum were implemented.
ar WIAD DO? 12 x RR In regard to the observation of the Honourable High Court at sl 1, as contirmed by the respondents in their reply statement at para 11, the office memorandum dt 2.9.2008 deals with regulating the pension of pensioners who retired on or after 1.12006 and OM dt 1.9.2008 is related to pensioners who are pre 2006 retirees. The applicants who filed the GAs are all those who retired prior to 11.2006 and hence Office memorandum dt 2.9.2008 would not apply to the applicants in the OAs being dealt.
9, Now coming to the clarificatory Memo dt 3.10.2008 the following is to be narrated to arrive at an analytical and effective conclusion.
1Q. The VI CPC recommendations (5.1.33 and 3.1.47) as contained in Govt.
of India resolution dt 29.8.2008, which have an intrinsic bearing on the present case, state as under:
Linkage of full pension with 33 years qualifving service should be dispensed with. Onee an eniplavee renders the iminimum pensionable service af 20 years, pension should be paid at 30% of the average emoluments received during the past 10 months ar the pay last drawn whichever Ix srost beneficial to the retiring employee. 5.1.47 "all past pensioners should be allowed fitment benefit equal to 40% af the pension exeluding the effect of merger of the 30% dearness allawanee' dearness relief as dearness pension respectively. The increase will be allowed by subsuminge the effect of eanversion af 30% of the dearness relief / dearness allowance as dearness pension! dearness pay.
Consequently, dearness relief at the rate of 740 on pension has been taken for the purposes of computing revised pension as on 1.12006. This is consistent with the fitment benefit being allowed in case of the existing emyHovees, The fixation of pension will be subject to the provision that the revised pension, in no case, shall be lower than the 30% of the sum of the auninnun of fhe pay in the Pay Band and the Grade Pay thereon corresponding to the pre-revised seale from which the pensioner had retired."
DAS SLS/35 & batch Seay ii, The Government accepted the recommendation with a modification of fixation of pension based on a multiplication facter of 1.86 instead of 1.74. The Government issued OM dt. 1.9.2008 based on the acceptance of the VI CPC along with the modification cited. The important paragraph of this OM is 4.2 which is more or less, a replica of a provision 5.1.47 of notification dated 29.8.2008, given hereunder:
"The fixation of pension will he subjeet to the provision that the revised pension in no case shall be lower than 50% af the minimuni of pay on the pay band plus the grade pay corresponding to the pre-revised pay scale Jrom which the pensioner had retired. In the case af HSG+ and above seades, thix will be 30% of the minimum of the revised pay scale."
However, in the process of implementation the field units did seek clarifications and O.M dt. 3.10.2008 was issued. One amotg them is the clarification given at para 1 clause 4.2 of the said memo leading to a tsunami of litigation pan India. The controversial clause 4.2 reads as under:
"The pension is ealeulated at SO percent of the minimum of pay in the pay band plus grade pay would be calculated € 1) 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 scalce ."' The major difference in the 6" CPC notification dt. 29.38.2008 and para | clause 4.2 of O.M_ dt. 3.10.2008 is that the former prescribes fixing of pension with reference to the corresponding scale in which an employee retired and the later advises to ignore the corresponding scale and fix the pension at the minimum of the pay band.
12. The notification dt. 29.8. 2008 was issued based on the acceptance of the ae 6" CPC recammendation by the Cabinet. The memo dt 1.9.2008 meant for pre 16 OAs 518/45 & batch 2006 pensioners was issued based on the notification dt. 29.8.2008. Whereas O.M dt 3.10.2008 which is clarificatory in nature has modified clause 3.1.47 of the 6" CPC approved by the cabinet. Such modification requires approval of the cabinet. Since there is no such approval of the Cabinet the said clause is ah initio void. Therefore para | of clause 4.2 of the O.M dt 3,10.2008 stands invalid, Thus pension has to be fixed as per clauses 5.1.47 and 5.1.33 of the 6° CPC as contained in notification dt. 29.8.2008 and OM dt 19.2008,
13. it was this aspect which fell for consideration of the larger bench of the Honourable Principal Bench of this Tribunal which analyzed the issue threadbare and observed as under:
"According fo 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 ..clarifications vide memo dated 3.102008 amount to carrying out canendiment to the resalution dt 22.8. 2008 based upon para A147 af the recommendatians of the ¥1 CPC as also the OM dt 1.9. 2008 issued by the Central Govt pursuant to the aforesaid resolution, which has been accepted by the cabinet, Thus, such a course was not permissible for the functianary of the Government in the garb of clarification, that tao, at their own level without referring the matter to the Cabinet.
in view af what has been stated above, we are af the view that the clarificatary OM dt 3.HL2008 and further OM dt 14.10.2008 which was also based upan clarificatary OM dt 3.10.2008 ) and OM alt 11.2. 2008, where by representation was rejected by canmman order, are required to be gueshed and set aside, which we accordingly do. Respondents are directed to refix the pension of all pre -2006 retirees wef 11,2006 based on the resolution at 29.8. 2008 in the light of our observations made above, ™ The matter went up to the Hon'ble Supreme Court vide SLP (C} No 36148/2013 filed by the UO, which was dismissed and thus the decision of the Honourable Principal Bench of this tribunal attained finality.
l4. New coming to the second observation of the Hon'ble High Court, in pr ond judgment. These OMs deal with the pension of pensioners who retired on or afters 11.2006, The applicants are all those who retired prior to 11.2006 and hence the OMs cited are not applicable to the applicants as stated by the respondents. Besides, the Hon'ble High Court in para 16 of its judgment referred to OM dt. 10.02.2009. Neither of the counsel has submitted the said OM. Further, on verification, leamed counsel for the applicants and the respondents informed that it could be OM dt. 11.02.2009 instead of 0.02.2009 and this could possibly be a typographical error, OM dated 11.02.2009 dealt with the representations made by the pensioners in regard to the recommendations of the VI CPC. The said OM emphasized that the OM dated 14.10.2008 js based an CCS (Revised) Rules 2008 which are applicable to the employees in the service as on 1.1.2006 and no dispensation in this regard can he made in respect of pre-2006 pensioners for the Purpose of application of the provisions of Para 4.2 of this Department's OM de. 19.2008. The invalidity of the OM dt, 14.10.2008 has been expounded in paras 12 & 13 above, Consequently, the OM dt. 11.02.2009 does not alsa provide any Stipport to the assertions of the respondents. The respondents also made a reference to the OM dt. 11.12.2008 in para 16 of the reply which again deals with the pensionary matters of past 2006 retirees and does not apply to the applicants, The pension of the applicants has to be re-fixed as per OM dt. 1.92008. The OM t3.10.2008 atlempted a modification of OM dt.1,9.2008 burt it was quashed by the Han'ble Principal Bench of this Tribunal and also by the Hon'ble Supreme Court in Union of India Vs, K.Venugeopalan Nair in CA No.2001- 2002/2015, Therefore, the pension of the applicants has to be worked out as per OM dt. 1.9.2008 based on the concordance table issued along with the said OM.
In regard to O.M dt 3.10.2008 para | of clause 4.2 which is the main issue sf is also found to be invalid in its application on the basis of the principle of Ms SEGITS & batch 48 GAs S18/15 & batch «ey : a seth pay . ah modified parity postulated at clause 137.21 of 5° CPC and accepted by the & CPC as well as by the Government of India. Clause 137.21 reads as under:
"The Conmission hax decided to enunciate a principle far the future revision of pensions to the effect that complete parity should normally be cunceded up to the date af last pay revision and modified parity éwith pension equated at least to the minimum of the revised pay scale) be accepted at the time of each fresh pay revision. The enunciation of this principle would lnply that at the time of the next pay revision say, in the vear 2006 , complete parity should be given ta past pensioners as between pre -1996 and post -1996 and modified be given between the pre 2006 and post 2006 pensioners,"
Therefore based on the above principle the pension of the pre 2006 pensioner should be fixed at 30 percent of the minimum of the pay in. pay band plus the grade pay corresponding to the revised pay scale in which the pensioner has retired. As the above principle has approval of 6" CPC and the G.O|, subsequent clarifications contravening the said principle by clause 4.2 of O.M dé 43.10.2008 do not hold good since they do not have the approval of the Cabinet. The adverse impact of clause 4.2 of O.M dt 3.10.2008 was clearly demonstrated by the Hon"ble Principle Bench at paras 29 (a), (b) and (c}) by taking an example of an employee who has retired in Dec 2005 in 8-29 grade in 3" CPC will get Rs.23,700 as pension and whereas one who retires in Jan 2006 will get a pension of Rs.27,330 in the same §-29 grade which thereby defeats the fundamental principle of modified parity not Intended by G.O.1 or the 6" CPC. Further the GOT has improved many pay scales recommended by the 6 CPC as for eg. $-29 pay scale was improved from Rs.39.200-67,000 + Grade Pay (GP) of Rs.9000 with a minimum pay of Rs.43 280 to Rs.37,400- 67000 + G.P of Rs. 10,000 with aminimum of Rs.44,700. the interpretation of the Dept. of Pension were to be accepted then this will result in reduction of pension by Rs.400 per month. The Central Government did not intend to reduce the pension of pre -2006 retirees while improving the pay scale of $-29 grade. A Director level officer retiring _ kg! », 8 Ao oe Nal x A"
PNA nee wg yA gs i3 O&s SIS/TS & batch aller putting in merely 2 years of service in their pay band (8-24) would draw/s wen prnectts more pension than a §-29 9 grade officer retiring before 1.1,2606 and that no $-29\ grade officer whether existing or holding post in future will be fixed at minimum ofthe pay band Le. Rs 37,400. Therefore the fixation of the pay at Rs 37,400 by terming it as minimum of the pay in the pay band is erroneous and ill conceived, Reverting to the third key observation of the Honourable High Court the details required to be examined for each of the applicant:
The pensioners as per clause 5.1.33 of 20.8.2008 notification, accepted by the Govt, are eligible for 5096 of the average emohonents rec ehved during the past 10 months or the pay last drawn whichever ix most ber éficial te the retiring emplovee.
The cancordance table (CT) attached ta the O.M dt 1.9.2008 drawn based on the Government's Resolution dt. 29.08.2008 provides the persion to be fixed as on 11.2006. decordingly the pension due is worked out and giver hereunder:
Ss Applicant Pay seale/ | Pension | Date of : Pension | Pension vide OMs.dt. diffe Na. | NamefQA/ last pay drawn ( refirement | sought by | 29.8.2008/ 1.9.2008-6.ra | rence designation! | drawn by the -cuncerdance table (C,T) | e office respon- applicant | revised consolidated denis pension (RCP)
i) A Venkat 80GG- 11084 | FEL2001 0 11,300 10,0008 SO00--As per | 236 Rao 13500 C.T ROE = 11,300 OA S18/2015 | 10,000 2 Cs Oe 2 1S. Ram 2200-4000/ 3E1O.1994 12069 Eg CPC lR600 =1800 306 ' bhoopala 3,600 11,869 66" CPC $340- as per CT Sarma POPC) REP = 13,669 LOA 139/18 | 3 | ASY Sarma | §600- T3008 | SOLE LON? ¢ ESR? LISTS 25787 SG 7?
OA SO7/2018 | PISQOY S787.50- as per CT Tis?7s RCP= [3,082 4 KV Ramana | 2200-4000 7 12sdd TSR iss) 108 papa "38002 =1000 | 68 Murthy 4 ope} OPC S400. as per CT OA 48/2015 | 3806 : RC 'P= [2.408 2 YC Mastan [| 8000-13500 | 13879 | 311200) 13704 121282 {2S Rao 12125 HOG? 2.50. as Pe ar CT OA 717/2015 RCP =13.704 -
6 B. Surya Rao | 8000-13500 | 19828 [3082001 774073 1400 184 DA TI8/2018 | 1400 200+ as per CT _ RCP = 14012 7 Smt¥ Prema | 1600-2660 | 7278 13.8. F890 POSS 2250/2 =PE28 4s iVR) i$ cpc} VOR 345- ag per CT OA 4012015 | 2250 RCP= 7693 8 DV Venkat 2200-4000 T1699 30 TL 1992 T1900 a EPC 350079 234 Rao (dene) 6 EPC 5205+ as per CT 1 OA 4022078 | 3506 RCP = 11800 20 OAs 518/15 & batch OA TIOLS | 11575 : RCP = [3082 ® | E.Kushna 2200-4000 12088 [382.1908 TF i2ase a epee 37008 13] | Sseamy (4 ope} 6 CPC S415. ag per CT __GA 408-2018 | 3700 RCP 12239 10 AV Prasad | 8000- 13796 | 318.2000 | 14012 | 12400/2 216 | Reo 13500 6200- as per CY OA 568/15 | 12400 RCP= 14012 Ti | B Krishna ROOG- (2834 [2R.9.1998 | 13082 LPSts/2 248 Murthy 13500 : $787.50- as CT N. Chit 1640-2900 1210 01.11.1993 [8366 | 4'¥ CPC 2450/2-1210 babu 2450 | 6"! CPC. 3746-as_ per OA 168/18 C.T RCP = 8467 Hon'ble Principal Bench of this Tribunal in OA No. 6553/2010 & Batch has delivered the judgment in regard to the issue as under:
"the respondents are directed to re-fix the pension of all pre-2006 retirees wef J.1 2006, based on the resolution dated 29.08.2008 and in the light of our observations made above... ° This order of the Hon*ble Principal Bench was upheld by the Hon'ble Supreme Court in SLP (C) No. 36148/2013.
Thus as can be seen from the above the plea made by the applicants is as per recommendations of the 6" CPC which has been accepted by the Govt. Such revision can he allowed only for the period from 1.1.2006 to JLU2.2015 since from 2016 onwards the pay matrix is governed by the recommendations of the 7° CPC. Incidentally the difference is marginal but with the large mumber of pensioners, as submitted by the learned counsel for the respondents, the financial burden would be considerable. However, in such matters the principle involved has to be upheld. The Pensioners are only seeking what has been accepted and agreed to be given by the Govt. Pension is a recurring cause of action. The pensioners claimed that they did represent on different dates and having not gat the relief needed approached this Tribunal. The prayer of the pensioners is as per rules on the subject. In fact, the Hon'ble Supreme Court in Union of India Vs. K. Venugopalan Nair in C.C, No(s). 2001-2002/2015 has observed that "The provisions of quashed OMs dt. 3.10,2008, 14.10.2008, 112.2009 can 23 Kinensnumwenn:
29.8.2008, In accordance with Principal Bench Delhi Judgment dt. 1.11.2011 that attained legal finality by the highest court of the land." Therefore, in view of the rules favouring the applicants and the Honourable Supreme Court delivering verdict in their favour, the OAs succeed and hence are allowed.
ié. Therefore the respondents are directed to consider:
1) Revising pension of the applicants based on the recommendation of the 6" CPC and accepted by the Govi, by working out the pension as SQ percent of last pay drawn using the Concordance Table issued pursuant to the Government's Resolution No. 38/3 7/08-P&P WA) dated 29.08.2008,
2) Warking outand release the arrears of pension for a period of 3 years prior to the date of filing the OA as per para 5 of the verdict of the Hon'ble Supreme Court in CA No. $151 of 2008 -- 5152 of 2008 in Union of India & Others Vs. Tarsem Singh.
3) Time calendared to comply with the order is 7 months from the date of receipt of this order Iv. In the result, the OAs are allowed with the above directions. Parties will bear their own casts.