Central Administrative Tribunal - Ernakulam
T.D. Patrick vs Union Of India on 18 March, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A No.180/00640/2015
Friday, this the 18th day of March, 2016
CORAM:
HON'BLE Mr. U. SARATHCHANDRAN, JUDICIAL MEMBER
HON'BLE Mr. P.K. PRADHAN, ADMINISTRATIVE MEMBER
T.D. Patrick, S/o. (late) K.L. Devassy,
Retired Section Officer from the Office of
Directorate General, Central Reserve Police Force
(under MHA), Blcok No. 1, CGO Complex,
Lodhi Road, New Delhi - 110 003.
Residing at 'Faina Villa', House No. D-4-86,
KSHB Colony, P.O. Erumathala, Choondy,
Alwaye - 683 112, Ernakulam District. . . .Applicant-in-person
Versus
1. Union of India, represented by its Secretary
Ministry of Home Affairs, New Delhi and
Ministry of Personnel Public Grievances & Pension,
Department of Pension & Pensioners' Welfare,
New Delhi.
2. The Director General of Police,
Directorate General, Block No. 1,
Central Reserve Police Force,
CGO Complex, Lodhi Road, New Delhi - 110 003.
3. Director (Accounts), Pay & Accounts Office,
Central Reserve Police Force,
Mahavir Nagar, New Delhi - 110 018.
4. The Deputy Inspector General (Org.),
Central Reserve Police Force,
CGO Complex, Lodhi Road,
New Delhi - 110 003. .... Respondents
(By Advocate Mrs. Mini R. Menon, ACGSC)
The application having been heard on 15.03.2016, the Tribunal on
18.03.2016 delivered the following:
ORDER
Per: Mr. P.K. Pradhan, Administrative Member The applicant has filed this present O.A seeking the following reliefs:-
'i) to quash Annexure A-4, A-11 and A-20 which is not maintainable.
ii) to direct the respondents to exercise their correct jurisdiction on the two pending representations (Annexure A-12 and A-18) through a speaking order to be signed by the Competent Authority and also to discuss various facts brought out in the representations and delay caused in the case as well (2nd and 3rd respondents).
iii) Grant such reliefs as may be prayed for and the court may deem fit to grant.
iv) Grant the costs of this Original Application'.
2. The applicant while working as Section/Admin. Officer in the office of the Directorate General, CRPF Headquarters, New Delhi decided to proceed on Voluntary Retirement in view of his domestic problems at home. Accordingly, he served a notice to the Appointing Authority on 01.04.2008 (Annexure A-1) requesting for allowing him to proceed on voluntary retirement with effect from 01.07.2008 (F.N). Therefore, the matter was processed by the respondents and vide order at Annexure A-2, the respondents accepted his voluntary retirement with effect from 01.07.2008 (F.N). Accordingly, the applicant made over charge of Section Officer, Communication Branch, CRPF in the forenoon of 01.07.2008 (Annexure A-
3). Subsequently, on implementation of VI CPC recommendation, the annual increment in the new structure was allowed uniformly on 01.07.2008 every year to the Government employees. Thereafter, the applicant on realising that he is entitled to get increment on 01.07.2008 started making representation to the respondent authorities. Representation made on 30.11.2012 is at Annexure A-5. After filing of the representation, the applicant was informed vide a communication dated 22.10.2013 (Annexure A-11) saying that he is not eligible for increment on 01.07.2008 as he proceeded with voluntary retirement with effect from 01.07.2008. Aggrieved by the same and for not getting relief available under provisions in Rule 5(2) of the CCS (Pension) Rules, he made further representation to all concerned. However, he was not granted any relief and communication dated 11.06.2014 (Annexure A-20) said that further course of action shall be taken by the PAO only on receipt of decision from Org.(Pers) Directorate, CRPF. Therefore, the applicant made further representation to the Director General. Not getting any response, he has approached this Tribunal seeking the relief as sought for.
3. In the O.A, the applicant has further referred to the CCS (Pension) Rules, 1972 wherein para 5(2) says that the date on which a Government Servant retires or he is retired or is discharged or is allowed to resign from service, as the case may be, shall be treated as his last working day. Therefore, according to him, 01.07.2008 i.e the day on which he handed over charge on acceptance of voluntary retirement, shall be treated as his last working day and therefore, he is entitled to annual increment which fell due on that particular day. Therefore, he prayed for sanction of one increment which fell due on 01.07.2008 and grant benefits accordingly.
4. On behalf of the respondents, a statement has been filed by the counsel for the respondents based on the instructions received from the respondents. In the said statement, it was submitted that :
'2. . . . as per Rule 5(2) of CCS (Pension ) Rules, 1972, 'in the case of a Government Servant who is retired prematurely or who retires voluntarily under Clauses (j) to (m) of Rule 56 of the Fundamental Rules or Rule 48 (or Rule 48-A), as the case may be, the date of retirement shall be treated as a non-working day.
3. In the instant case, petitioner proceeded voluntary retirement from service w.e.f. 01/07/08 (FN) under Rule 48-A of CCS (Pension) Rules, 1972. Hence as per Rule 5 (2) of CCS (Pension) Rules, 1972 as mentioned above, his date of retirement i.e. 01/07/08 (FN) shall be treated as non-duty and as such he is not entitled for annual increment due on 01/07/08.
4. However, contention of petitioner in above O.A is that he is entitled for annual increment due on 01.07.08 as the Rules 5(2) of CCS (Pension) Rules, 1972 has been omitted vide w.e.f.
01/01/1996 vide DOP&PW notification dated 21/12/12.
5. In this connection it is submitted that Rule 5(2) of CCS (Pension) Rules, 1972 has been omitted and shall be deemed to have been omitted w.e.f. 01/01/1996, vide DOP & PW Notification dated 21/12/12, copy of the same is produced and marked as Annexure R-1. However, as per para 2 of above notification it is stated that these rules shall come into force on the date of their publication in the official website i.e. 21/12/12. As such omission of Rule 5(2) of CCS (Pension) Rules, 1972 also came into force w.e.f 21/12/12.
6. Since petitioner retired from service w.e.f. 01/07/08 (FN) i.e prior to issue of above notification dated 21/12/12, his date of retirement can be considered as non-working day as per Rule 5(2)of CCS (Pension) Rules, 1972 and as such he is not entitled for annual increment due on 01/07/08.'
5. The applicant has filed a rejoinder in which he submits that in the notification dated 21.12.2012, the provision to Rule 5(2) of CCS (Pension) Rule have been omitted with effect from 01.01.1996 and not Rule 5 (2). Since the said provision has been omitted with effect from 01.01.1996 the contention of the respondents that it will not affect him is incorrect and cannot be sustained.
6. Heard applicant-in-person and also learned counsel for the respondents. Both sides practically reiterated the points highlighted the O.A and the statement made by the respondents.
7. We have carefully considered the fact of the case in the matter. The issue primarily relates to whether the applicant who proceeded on voluntary retirement with effect from 01.07.2008 (F.N) is entitled to be considered to be on duty on that day and therefore avail the increment which fell due on 01.07.2008. The Rule 5 of the CCS (Pension) Rules, 1972 initially provided as follows:-
'5. Regulation of claims to pension or family pension (1) Any claim to pension or family pension shall be regulated by the provisions of these rules in force at the time when a Government servant retires or is retired or is discharged or is allowed to resign from service or dies, as the case may be.
(2) The day on which a Government servant retires or is retired or is discharged or is allowed to resign from service, as the case may be shall be treated as his last working day. The date of death shall also be treated as a working day.
Provided that in the case of a Government servant who is retired prematurely or who retires voluntarily under Clauses (j) to (m) of Rule 56 of the Fundamental Rules or Rule 48 [or Rule 48-A], as the case may be, the date of retirement shall be treated as a non-working day.b�
8. Subsequently, the GOI brought out a gazette notification dated 21.12.2012 amending the pension Rules 1972 as follows:-
'G.S.R. 928 (E) - in exercise of the powers conferred by the provision to article 309 and clause (5) of article 148 of the Constitution and, after consultation with the Comptroller and Auditor General of India in relation to conditions of service of persons serving in the Indian Audit and Accounts Department, the President hereby makes the following rules further to amend the Central Civil Services (Pension) Rules, 1972, namely :-
(1) These rules may be called the Central Civil Services (Pension) Amendment Rules, 2012.
(2) Save as otherwise provided, these rules shall come into force on the date of their publication in the official Gazette.
2. In the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as the said rules) in rule 5, in sub-rule (2), the proviso shall be omitted and shall be deemed to have been omitted with effect from the 1st day of January, 1996.'
9. There are also other provisions of pension rules which have been amended however, they are not relevant to the present case and hence not mentioned.
10. It is evident from the above that under the initial provision Rule 5(2) of the Pension Rules provided that when a government servant retires or retired or is discharged or is allowed to resign from service shall be treated as his last working day. However, there was a provision stipulating that person who retired prematurely or who retires voluntarily under Clauses (j) to (m) of Rule 56 of the Fundamental Rules of Rule 48 or Rule 48-A, the date of retirement shall be treated as a non-working day. Thus there was a difference between the government servant who normally retires from government service and those those who take voluntary retirement. But with the deletion of the proviso of Rule 5(2), in the notification of 21.12.2012, the stipulation regarding treating the day on which a person retires as his last working day become applicable to person taken voluntary retirement also. A point was raised by the respondents that since the Gazette notification was dated 21.12.2012, the deletion of the proviso of Rule 5(2) also takes effect from that day and since the applicant retired voluntarily prior to that he will not get the benefit of the same. However, the stand of the respondents is clearly incorrect. The notification mentioned that save as otherwise provided, the rules which come into force in the publication of the official gazette. The notification clearly stipulates that the omission of the provision of Rule 5(2) shall be deemed to have been omitted with effect from 01.01.1996. Therefore, the provision to rule 5(2) of the CCS (Pension) Rules shall stand omitted from 01.01.1996 and hence, the applicant who retired on 01.07.2008 shall be covered under Rule 5(2) of the CCS (Pension) Rules itself.
11. It is, therefore, quite clear that since the applicant took voluntary retirement with effect from 01.07.2008 (F.N) and handed over charge on that day, in terms of Rule 5(2) of the CCS (Pension) Rules 01.07.2008 shall be taken as the last working day for the applicant in his VRS. Therefore, he will be entitled to have his pay as well as all other benefits such as the annual increment which fell due on 01.07.2008. His pension would start only with effect from 02.07.2008. Therefore, we agree with the contention made by the applicant and direct the respondents to treat 01.07.2008 as the last working day of the applicant and sanction the annual increment due on that day and also pay for that day. The pension granted to the applicant shall be revised accordingly and granted with effect from 02.07.2008 only. The Respondents Nos. 2 & 4 are directed to issue necessary orders sanctioning the benefit to the applicant within a period of 2 months from the date of receipt of a copy of this order.
12. The Original Application is accordingly allowed. No order as to costs.
(Dated, this the 18th March, 2016.)
(P.K. PRADHAN) (U. SARATHCHANDRAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
ax