Central Administrative Tribunal - Delhi
K P Raizada vs Govt. Of Nctd on 13 February, 2024
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Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021
Central Administrative Tribunal
Principal Bench
OA Nos. 1540, 1541, 1537 of 2021
Reserved on:01.02.2024
Pronounced on : 13 .02.2024
Hon'ble Dr.Chhabilendra Roul, Member (A)
OA No.1540/2021
1. Sh. K.P. Raizada
Aged about 92 Years
S/o Late Sh. Bhagawat Prasad
R/o B-163, Saraswati Vihar
Pitam Pura, Delhi-110034
OA No.1541/2021
1. Sh. Y.P. Purang
Age about 92 Years
S/o Late Sh. Ram Rattan Purang
R/o C-2/113, Janakpuri,
New Delhi-110058
OA No. No.1537/2021
1. Sh. Q.L. Bagga
Age about 91 Years
R/o C1, Type -VI, Tower-9
East Kidwai Nagar,
New Delhi-110023
-Applicant
(Through Advocate:Mr.Amit Sharma)
Versus
1. GNCT of Delhi
Through its Chief Secretary
Delhi Secretariat, I.P. Estate
New Delhi -110002
2. The Director of Education
GNCT of Delhi
Old Secretariat
Delhi -11054
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Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021
3. The Secretary
Deptt. Of Pension &
Pensions‟ Welfare
Min. of P.,PG& Pensions
Janpath Bhawan, B-Wing
8th Floor, New Delhi-110001
-Respondents.
(Through Advocate: Mr.Saurabh Chadda with
Mr.Rohit Bhagat)
ORDER
By Hon'ble Dr.Chhabilendra Roul, Member (A):-
The subject matter in all three OAs are exactly the same, the relief sought by the three applicants in three OAs are also exactly same.
In view of this, the three OAs are decided together and copy of this order shall be placed in each of the OAs.
1. The applicants in above three OAs have sought identical relief which is as follows:-
(i) Re-fix and do Re-revision / correction to the applicant‟s pension w.e.f. 01.01.2016 as per 7th CPC Pension Rules in case of Pre 2016 Retiree pensioners while applying the correct corresponding pay scale of Rs.
12,000-16,500 for 5th CPC and considering the correct concordance table (but not 37 or other way) in terms of Office Memorandum dated 06th July 2017 issued by the Govt. of India (Ministry of Personnel, P.G. and Pensions Department of Pension & Pensioners‟ Welfare) for the purpose of evaluating the fixation of his pension since 01.01.2016.
(ii) Issue fresh PPO (Pension Payment Order) accordingly.
3Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021
(iii) Pay the admissible arrears w.e.f.
01.01.2016 to update along with an interest of 18 P.A.
(iv) Any other or further order the Hon‟ble Tribunal deems fit and proper, may also be passed in favour of the applicant in the interest of justice along with the cost of litigation.
2. The factual matrix of the present cases are as follow:-
1. (OA-1540/2021)- The applicant (Shri K.P. Raizada) retired on 30.06.1991 from the post of Deputy Director Education, Government of NCT of Delhi in the pay scale of Rs. 3000-5000 with the last pay drawn of Rs. 4875/- per month during the currency of implementation of recommendations of the 4th Central Pay Commission (CPC).
2. (OA-1541/2021) The applicant (Shri Y.P. Purang) retired on 04.03.1991 from the post of Deputy Director Education, Government of NCT of Delhi in the pay scale of Rs. 3000-5000 with the last pay drawn of Rs. 4875/- per month during the currency of implementation of recommendations of the 4th Central Pay Commission (CPC).4
Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021
3. (OA-1537/2021) The applicant (Shri Q.L Bagga) retired on 04.03.1991 from the post of Deputy Director Education, Government of NCT of Delhi in the pay scale of Rs. 3000-5000 with the last pay drawn of Rs. 4875/- per month during the currency of implementation of recommendations of the 4th Central Pay Commission (CPC) 2.1 The abovementioned three applicants in all three OAs were receiving their pension as per the prevalent rates during the recommendations period of 4th & 5th CPC. The Government accepted the recommendations of 5th CPC and revised the pay scale of Deputy Directors of Education w.e.f. 01.01.1996 at the pay scale of Rs. 10,000-15,200/-. The present applicants were receiving the pension as per this pay scale till the end of the currency period of recommendations of the 5th CPC. The pay scale of the Deputy Directors Education was further modified w.e.f. 01.01.2006 at Rs.15,600-39,100/- with Grade Pay of Rs. 6,600/-. Three applicants in all these OAs have got their pension as per the corresponding recommendations of the 6th CPC till the end of 5 Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 31.12.2015. The Government accepted the recommendations of the 7th CPC and made it effective from 01.01.2016. The Department of Pension and Pensions Welfare, Government of India vide its OM dated 12.05.2017 notified the manner in which the pension of pre 2016 pensioners will be revised. Paragraph No.4 of the said OM states as follows:-
"4. The aforesaid Committee has submitted its Report and the recommendations made by the Committee have been considered by the Government. Accordingly, it has been decided that the revised pension/family pension w.e.f. 01.01.2016 in respect of all Central Civil pensioners/family pensioners, including CAPF's, who retired/died prior to 01.01.2016, may be revised by notionally fixing their pay in the pay matrix recommended by the 7 CPC in the level corresponding to the pay in the pay scale/pay band and grade pay at which they retired/died. This will be done by notional pay fixation under each intervening Pay Commission based on the Formula for revision of pay. While fixing pay on notional basis, the pay fixation formulae approved by the Government and other relevant instructions on the subject in force at the relevant time shall be strictly followed 50% of the notional pay as on 01.01.2016 shall be the revised pension and 30% of this notional pay shall be the revised family pensīon w.e.f. 1.1.2016 as per the first Formulation. In the case of family pensioners who were entitled to family pension at enhanced rate, the revised family pension shall be 50% of the notional pay as on 01.01.2016 and shall be payable till the period up to which family pension at enhanced rate is admissible as 6 Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 per rules. The amount of revised / pension family pension so arrived at shall be rounded off to next higher rupee."
2.2. The Department of Pension & Pensions Welfare further issued a clarificatory memorandum dated 06.07.2017. The paragraph No.2, 4 and 5 of the said OM state as under:-
"2. It was also provided that the revision of pension will be done by notional pay fixation under each intervening Pay Commission based on the formula for revision of pay. Based on the fitment tables provided by the Department of Expenditure, concordance tables for fixation of notional pay and pension / family pension of employees who retired/died in various grades during the 4th, 5th and 5th Pay Commission periods have been prepared and the same are enclosed herewith. In the case of those employees who retired/died before 01.01.1986, these concordance tables may be used based on their notional pay as on 01.01.1986, which was fixed in accordance with this Department's OM No. 45/86/97-P&PW(D)(iii) dated 10.02.1998.
3. Separate tables have been given in respect of pre- 01.01.2016 pensioners who retired in the Group 'D' pay scales corresponding to 5th CPC grade pay of Rs. 1300/-, Rs. 1400/-, Rs. 1600/- and Rs. 1650/- {Table No. 1 to Table No. 4) and for pensioners who retired during 6 1 h CPC period after upgradation to the Grade pay of Rs. 1800/- (Table No. 5 to Table No. 8). The pension/family pension of such pensioners/family pensioners may be revised using the appropriate Table.
4. These concordance tables have been prepared to facilitate revision of pension of pre-2016 pensioners/family pensioners by 7 Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 the concerned pension sanctioning authorities. Due care has been taken to prepare these concordance tables based on the fitment tables for fixation of pay from 4th to 5th, s" to 5th and 5th to ih Pay Commission. In case of any inconsistency in the concordance tables vis-a-vis the relevant rules/instructions, the notional pay and pension/family pension of pre- 2016 pensioners/family pensioners may be fixed in accordance with the rules/instructions applicable for fixation of pay in the intervening Pay Commission periods.
5. It is requested that the pension of pre- 2016 pensioners / family pensioners may be revised w.e.f. 01.01.2016 in accordance with the instructions contained in this Department's OM of even no dated 12.05.2017 and using the concordance tables enclosed herewith."
2.3 The applicant -Sh K. P Raizada in OA-1540/21 submitted a representation dated 09.11.2020 for revision his pension in accordance with the OM dated 12.05.2017 readwith OM dated 06.07.2017 as per his interpretation. The respondents declined to claim of the applicant vide their response dated 04.12.2020. The applicant -Sh. Q.L. Bagga in OA-1537/2021 has sent a legal notice dated 10.2.2021. However, the respondents did not give any response to his legal notice given by the applicant.
Similarly, the applicant-Shri Y.P. Puran in OA- 1541/2021 has sent a legal notice dated 10.02.2021. In this case also the respondents have not replied to his legal notice. Being aggrieved, the applicants 8 Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 have filed the present three OAs, seeking the aforementioned identical relief.
3. The applicants in their OAs as well as by their respective counsels during arguments have taken identical grounds in support of their claim. According to the applicants, the respondents while revising their pension in pursuance to the OM dated 12.05.2017 readwith OM dated 06.07.2017 have not taken into consideration the revised pay scales that have been accepted by the Government on the basis of recommendations 5th CPC published on 29.06.2001. The learned counsel for the applicant argued that the 5th CPC recommended the corresponding pay scale of the Deputy Director Education at Rs.3000-5000/- of the 4th CPC to be revised as Rs.10,000-15,200/-. However, the Government further upgraded the pay scale of the Deputy Director of Education on 29.06.2001 by replacing the pay scale of Rs. 10,000- 15000 with the pay scale of Rs.12,000-16,500/- w.e.f. 1.1.1996. While revising pension w.e.f. as per 7th CPC recommendations in case of these three pre 2016 retirees, the respondents did not consider the pay scale of Rs.12,000-16,500 for the 5th CPC period and instead considered the initial recommendations of the 9 Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 5th CPC recommendations which recommended the Deputy Director (Education) pay scale at Rs.10,000- 15,200/-. Because of this, the respondents have picked up the incorrect pay band for retirees from the post of Deputy Director (Education) and the gross pension of three retirees was reduced considerably. The retirees have given detailed calculation as regarding what should be their revision of pay scales as on 01.01.2016 against the actual revision carried out by the respondents. The details are given in para 4.6 of their OA, which is reproduced as below:
Claim by the Actual given applicant by the respondents 4th CPC 01.01.1986 3000-5000 3000-5000 5th CPC 01.01.1996 12000-16500 10000- 15200 6th CPC 01.01.2006 15600-39100 15600-
39100
7th CPC 01.01.2016 78800- 67700-
209200 208700
(Level 12) (Level l1)
4. The learned counsels for the applicants submit that because of incorrect calculation as adopted by the respondents, the respondents applied Table No. 37 attached with the OM dated 06.07.2017. Actually the applicants claim that the Table No. 40 attached to the said OM should have been applied in case of the 10 Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 applicants. Because of this wrong calculation, applicants have incurred financial loss to the tune of Rs.2,600/- per month each in case of the applicant Shri K.P. Raizada in OA -1540/21, and Shi Y.P. Purang in OA No.1541/21 and Rs. 1450/- per month in case of Shri Q.L. Bagga in OA-1537/21.
4.1 The main arguments taken by the learned counsel for the applicants is that the Government notified upgraded pay scales for the Deputy Director of Education on 29.06.2001. This was effective from 01.01.1996 from the currency of recommendations of the 5th CPC, this has not been adopted by the respondents while revising the pension w.e.f.
01.01.2016 instead they took the pre-revised pay scales of Rs. 10,000 to 15,200/- for the applicants and this has resulted in erroneous calculation as well as reduction and also financial loss to three applicants.
5. Per contra, the learned counsel for the respondents refers to the counter affidavit filed by the respondents which are also identical in the said OAs. The learned counsel for the respondents raised maintainability of the OAs on the following grounds: 11
Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021
(a) The present OAs are not maintainable because of want of any cause of action against which the applicants have agitated.
(b) The present OAs are liable to be dismissed on the grounds of delay and laches. The cause of action for application of revised pay scales of 5th CPC arose when the Government notified the upgraded pay scales for serving Deputy Director of Education on 29.06.2001 to be effective from 01.01.1996. The pre-retiree of 01.01.1996 pensioners were not equated with the serving Deputy Directors of Education nor the persons who got upgraded pay scales after 01.01.1996. As the cause arose in 29.06.2001, the applicants should have agitated then, within the period of limitation from the date of issuance of the said notification. However, the applicants have failed to do so and they have agitated 20 years after issuance of the said notification.
5.1. In support of his claim, the learned counsel for the respondents refers to the following judgments of the Apex Court, according to which the aggrieved parties have to approach the appropriate court /forum within the statutory period prescribed in each case. After the expiry of the said period, the court should not grant the relief prayed for. He further cited the following judgments of the Apex Court:- 12
Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 (1) P.S.Sadasivaswamy vs. State of Tamil Nadu (AIR 1974 SC 2271).
(2) Ghulam Rasool Lone vs. State of J and K and Ors ( 2010(6) ALT 20 (SC) (3) State of Punjab vs. Gurdev Singh (1991) SCC (4) Union of India vs. Ratan Chandra Samanta JT 1993 (3) SC 418 (5) Ex Captain Harish Uppal vs Union of India JT 1994 (3 ) 126 (6) Ratna Chandra Samant JT 1993 (3) SC 418 (7) C.Jacob vs. Director of Geology and Mining and another (SLP 25795/2008) 5.2. The learned counsel for the respondents further avers that filing of repeated representations by the any party does not create fresh cause of action in favour of the applicant. In support of his assertions he cited the judgment of C.Jaco vs. Director of Geology and Mining and another (Supra) case.
5.3 On merits, the learned counsel for the respondents avers that the respondents have correctly revised the pension of the applicants. The applicants are under the false notion that when the Government upgraded the pay scales of Deputy Director of Education vide their notification dated 29.06.2001 to be effective from 01.01.1996 for the serving or retirees officers who were serving on or after 01.01.1996, the same could be applied to the present applicants who retired before 01.01.1996. In other 13 Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 words, the applicants are claiming parity with the retirees who retired after 01.01.1996. This parity has not been allowed by the Government while issuing notification dated 29.06.2001 nor such parity has been allowed by the Government for pre 01.01.2016 retirees, vide their notification dated 12.5.2017 readwith subsequent notification dated 06.07.2017. The present applicants were not given the upgraded pay scales of the Deputy Directors of Education at the pay scale of Rs. 12,000-16,500/- during the currency of the 5th CPC because they retired prior to 01.01.1996. The applicants were not in receipt of the upgraded pay scales during the currency of the period of their service with the respondents. 5.4 In view of this, the learned counsel for the respondents avers that the present OAs should be dismissed on the grounds of delay and laches as well as on merits.
6. I have heard the submissions by both the counsels and perused the records of the case thoroughly.
6.1 To appreciate the issue regarding parity between pre and post specific date retirees, it would 14 Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 be deemed to be appropriate to dealt with the recommendations of the 7th CPC in Chapter 10 of the recommendations, the same is reproduced below:
Evolution of Modified parity of Pensioners The present policy governing the pensioners belonging to different time periods of services to the Government is best termed as "modified Parity of pensioners" . This policy has evolved over a period of time taking into various judicial pronouncements, demands of employee associations and federations of retired employees/pensioners and deliberations amongst various wings of the Central Government. This has been succinctly mentioned in Chapter 10, specifically in Para‟s 10.1.53 to 10.1.63 . It will not be out of place to reproduce the entire analysis as done by the 7th Pay commission.
"Parity in Pension between Pre and Post Seventh CPC Retirees 10.1.53 This Commission has received a number of representations on the issue of disparities in pensions between past pensioners and existing pensioners. The JCM-Staff Side, has in its memorandum, stated that the pay of every pre-Seventh CPC retiree should be notionally determined (corresponding to the post from which he or she retired and not corresponding to the scale from which he or she retired) as if he or she is not retired and then the pension n be computed under the revised liberalized rules which are to be applicable to the post Seventh CPC retirees. A similar view has been expressed by a number of other Associations/Bodies representing Central Government pensioners. Further, certain groups of pensioners have contended that based on the recommendations of the VI CPC, the new pay structure consisting of Pay Bands 15 Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 and Grade Pays has led to bunching of a number of pre revised pay scales into a particular Pay Band. This, in their view, has placed pre-01.01.2006 pensioners in certain pay scales/Pay Bands at a disadvantage not only compared to the post 01.01.2006 pensioners in the corresponding pay scales but also in comparison to post 01.01.2006 retirees of lower pay scales.
Analysis and Recommendations 10.1.54 The Commission is of the view that the issue of parity in pensions is extremely important from the viewpoint of inter- temporal equity and merits a careful examination.
10.1.55 Treatment of Existing and Past Pensioners over time: The concerns of pensioners‟ associations and of individual pensioners on the issue of disparities in pensions amongst broadly comparable retirees, has been dealt with in reports of successive CPCs and also by the government. This is detailed in the succeeding paragraphs.
10.1.56 Till the III CPC, it was a general view that past and future pensioners cannot be treated at par and the practice was that benefit of improvement in the pension would be available to newly retiring pensioners from a prospective date. In fact the III CPC took the view that serving government employees and pensioners could not be treated at par as regards grant of DA at the same rate. A significant change in the paradigm for treatment of pensioners, past and future, emerged from the judicial pronouncement in D.S. Nakara vs Union of India in 1982 (AIR 1983 SC
130), based on which, for the first time, improvements in pensionery benefits were extended to pensioners who had retired prior to the date from which improvements became effective.16
Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 10.1.57 The IV CPC recommended, for both civil and defence pensioners, additional relief in terms of a percentage increase in amount of pension subject to a certain minimum increase. Separate rates were applicable to pensioners drawing pension upto ₹500 per men sum and those above ₹500 per men sum.
10.1.58 The V CPC made a definitive shift in the treatment of past pensioners. The Commission took the view that the process of bridging the gap in pension of past pensioners, set into motion by the IV CPC by grant of additional relief in addition to consolidation of pension, needed to be continued so as to achieve complete parity over a period of time. It, accordingly, recommended that pension of all the pre- 1986 retirees may be updated by notional fixation of their pay as on 1 January, 1986 by adopting the same formula as for the serving employees. The consolidated pension so arrived at was to be not less than 50 percent of the minimum pay, as revised by V CPC, of the scale of the pensioner at the time of retirement. This principle by which past pensioners are brought up to the minimum of the scale which replaced the scale in which the pensioner retired has been termed as modified parity. This consolidated amount of pension was to be the basis for grant of dearness relief in future.
10.1.59 The VI CPC noted that modified parity had already been conceded between pre and post 1 January, 1996 pensioners. It also observed that full neutralization of price rise on or after 1 January, 1996 had also been extended to all the pensioners. Therefore, the Commission felt that no further changes in the extant rules were necessary. To maintain the existing modified parity between present and future retirees, it recommended that those who retired before 01.01.2006 be given the same 17 Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 fitment benefit as was recommended for the existing government employees.
10.1.60 The above points to a distinct transition in the view taken by successive CPCs and the government, beginning with the III CPC. The V CPC, by recommending that pension of all the pre-1986 retirees should be updated by notional fixation of their pay, made landmark advancement in the regime for past pensioners. In principle, the VI CPC proposed provision of the same modified parity as was envisaged in by the V CPC. However, the new pay structure introduced by the VI CPC, based on running Pay Bands and Grade Pays, led to the bunching of a number of pre revised pay scales into a particular Pay Band, thereby diminishing the benefit of the intended modified parity. This naturally led to several representations following which certain corrective orders were issued by the government, some of which were based on the orders of various Courts.
10.1.61 Judicial Pronouncements on the Issue: The issue of pension has been a matter of debate in a large number of cases before the Hon‟ble Supreme Court of India. One of the early leading judgments on the subject is the case of D.S. Nakara V/S Union of India &Ors. [1983] 1 SSC 305. In this case, it was held that pensioners form a class as a whole and cannot be micro- classified by an arbitrary, unprincipled and unreasonable eligibility criteria for grant of revised pension. This ratio further came up for consideration before another constitutional bench in the case of Krishan Kumar V/S Union of India &Ors. [(1990 4 SCC 207)]. This constitutional bench distinguished the D.S. Nakara (supra) and held that it has limited application. The D.S. Nakara case again came up for discussion in the case of Indian Ex Services League V/S Union of India &Ors [(1991) 2 SCC 104)]. This constitutional bench further considered the case of D.S. 18 Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 Nakara and held that this case has limited application and its ambit cannot be enlarged to cover all claims made by pensioners retirees or a demand for an identical amount of pension to every retiree from the same rank irrespective of the date of retirement, even though the reckonable emoluments for computation of their pension be different. The decision of D.S. Nakara came up for consideration in two successive constitutional benches and they did not approve the ratio enunciated in the case D.S. Nakara (Supra). Subsequently, the case of D.S. Nakara (Supra) has been followed by some benches and some have distinguished it. A large number of cases have been summed up recently in the decision given in the case of State of Punjab V/S Amar Nath Goyal [(2005) 6 SCC 754)]. In this case, all cases on the subject were reviewed and it was laid down that the government can make distinction in the matter of payment of pension between two classes of pensioners. Various decisions, including the aforesaid two constitutional benches i.e., Krishan Kumar (Supra) and Indian Ex-Services League (Supra) and the judgment given in D.S. Nakara(Supra) were considered. Decisions given in the case of Action Committee South Eastern Railway Pensioners V/S Union of India [(1991 Supp. (2) SCC 544)] was also referred to. In this case also, it was accepted that distinction can be made between two pensioners. Similarly in the case of State of Rajasthan V/S Amrat Lal Gandhi [(1997) 2 SCC 342)], it was held that financial implication can be a consideration for making two classes of the pensioners though similarly placed. Similarly in the case of State of Punjab V/S Buta Singh [(2000) 3 SCC 733)], the Supreme Court held that the position that emoluments of persons holding the same status who retired after a notified date must be treated to be the same cannot be accepted. In the case of State of Punjab 19 Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 V/S G.L. Gupta [(2003) 3 SCC 736)] it was held that for grant of additional benefits that had financial implications, the prescription of a specific future date for conferment of additional benefits could not be considered arbitrary. However, the Apex Court has also taken a contrary view in some cases relying on D.S. Nakara‟s case. 10.1.62 In the case of Dhanraj&Ors. V/S State of J&K and others [(1994) 4 SCC
30)], it was held with reference to Government order of J&K, that the distinction between pre and post retires of June 1981 in payment of pension cannot be justified and it is violative of Article 14 of Constitution. Similarly, in a recent judgement of Hon‟ble Court given in the case of Union of India &Anr. V/S SPS Vains (Retd.) &Ors. [(2008) 2 SCC (LS
838)], the case of D.S. Nakara (Supra) was followed and it was held that the disparity created within the same class i.e., two officers both retired as Major Generals one prior to 1.1.1996 and other after that date but getting different amounts of pension was arbitrary and that the same also offends Article 14 of the Constitution of India.
10.1.63 The legal position that emerges from the aforesaid decision of the Apex Court is that classification should be founded on a rational basis while distinguishing one class from other. It should not be discriminatory or violative of Article 14 of the Constitution. The Apex Court has examined each case on its merit and wherever they have found that distinction between similarly placed classes is discriminatory then the same has been struck down."
6.2. Modified parity as recommended by the Vth Pay commission has been accepted by the VIth and VIIth 20 Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 Pay commissions. The basis of modified parity is that the basic pay scale of the retiree would be brought as the minimum of the pay band to which revised pay falls and that would constitute the base pay scale for calculating 50% of the relevant emoluments for calculating pension on which DA shall be granted.. In other words, it does not allow full parity between the retirees of the pre and post effective date of implementation. The post effective dates retirees will have a separate base pension as per the revised pay scales. In other words, the government has created two classes of retirees - one pre-specified date and the post specified date. That is reasonable classification without violating Article 14 of the Constitution of India. This has been upheld by the Apex court in catena of Judgments 6.3. The issue regarding parity between pre and post defined period retirees has also been dealt in the One Rank one Pension (OROP) issue in case of the retirees from the Armed Forces. The Government of India vide their OM No12(1)2014/D(Pen/Pol)-Part-IIdated 7.11.2015 by the Department of Ex-servicemen Welfare, Ministry of Defence had notified the One Rank One pension (OROP) to the Defence Force Personnel. This was a 21 Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 hybrid parity principle applied to the retirees of Defence forces. The retirees from Armed Forces agitated against this notification of modified parity, demanding full parity of all retirees from the same ranks, with the same years of service, must get an equal pension. They claimed that the 2015 OROP policy differed from the original promise based on the Koshyari Committee report. In the 2015 policy, enhancements in pension were not „automatically‟ passed on to past pensioners. As per the 2015 policy, servicemen who retired prior January 1st 2014 would be entitled to pension on the basis of the average of the maximum and minimum salary drawn for their rank in 2013. Servicemen who retired after January 1st 2014 would receive pension based on their last drawn pay. The rates of pension would be revised every five years, rather than automatically, with the first revision due in 2019.
6.4. The veterans objected to the creation of two classes of pensioners earning different rates of pension despite having retired at the same rank and having served for the same amount of time. They filed a petion in the Supreme court On March 16th 2022, a Bench comprising Justices D.Y. Chandrachud and 22 Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 Surya Kant upheld the „One Rank One Pension‟ (OROP) policy as proposed by the Union Government.The petitioners claimed that the 2015 policy was arbitrary and discriminatory under Articles 14 and 21, as it created two separate classes of retirees having the same rank and years of service. Further, the petitioners claimed that the Union government reneged on their OROP promise by not adhering to the Koshyari Committee report. The Supreme Court held that the policy was not discriminatory.
6.5 The Apex Court has examined the issue when the government created two distinct class of retirees based on reasonable classification and upheld that such distinction is not discriminatory and violative of Article 14 of the constitution of India.
There are two strands of judgments by the Central Administrative Tribunal and upheld by the High Courts and the Apex court .Some of the judgments held that there should be full parity amongst all retirees belonging to the same rank irrespective of the point of time when they retired from government service. The other group upheld the modified parity of pensioners as 23 Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 recommended by the Vth Pay commission and subsequently reiterated by the VIth and VIIth pay commissions and by the Government. This OROP notification by the ministry of defence in 2015 is also a sort of Modified parity among the pensioners from the From the Armed Forces.
6.6. We may now discuss similar issue pertaining to recommendations of the 6th CPC regarding retirees decided in OA No. 0655/2010 along with OA No. 3079/2010, OA No. 0306/2010 and OA No. 0507/2010. The issue relates to the revised pay scales of principals of Delhi Government Schools which were revised as per the 6th Pay Commission recommendations as accepted by the central government, with effect from 01.01.2006 to Rs 12,000-16,500 in PBIII with Grade Pay of Rs 7,600/-. However, vide OM dated 11.2.2009, the Department of Pension and Pensioners‟ Welfare clarified that the pre- 2006 pensioners would not be subject to the benefit of the above said revision. The Full Bench of CAT vide order dated 1.11.2011 granted somewhat parity to both pre-2006 and post 2006 pensioners and directed all pensioners of all pre-2006 be fixed w.e.f 1.1.2006 in accordance with 6th CPC.
24Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 This order of the Tribunal was challenged in the Delhi high court and subsequently in the Supreme Court. The decision of the full bench of CAT at its Principal Bench was upheld by these superior courts. The operative part of the said order of CAT is as follows:
29. From the above extracted portion it is clear that the principle of modified parity, as recommended by the V CPC and accepted by the VI CPC and accepted by the Central Government provides that revised pension in no case shall be lower than 50% of the sum of the minimum of the pay in the pay band and grade pay corresponding to revised pay scale from which the pensioner had retried. According to us, as already stated above, in the garb of clarification, respondents interpreted minimum of pay in the pay band as minimum of the pay band. This interpretation is apparently erroneous, for the reasons: a) if the interpretation of the Government is accepted it would mean that pre-2006 retirees in S- 29 grade retired in December, 2005 will get his pension fixed at Rs.23700/- and anther officer who retired in January 2006 at the minimum of the pay will get his pension fixed at Rs.27350/-. This hits the very principle of the modified parity, which was never intended by the Pay Commission or by the Central Government; b) The Central Government improved upon many pay scales recommended by the VI CPC. The pay scale in S-29 category was improved from Rs.39200-67000/- plus Grade Pay of Rs.9,000/- with minimum pay of Rs.43280/- to Rs.37,400-67000/- with grade pay of Rs.10,000/- with minimum pay of Rs.44,700/- (page 142 of the paper-book). If the interpretation of the Department of Pension is accepted, this will result in reduction of pension by Rs.4,00/- per month. The Central Government did not intend to reduce the pension of pre-2006 retirees while improving the pay scale of S-29 grade; c) If the erroneous interpretation of the Department of Pension is accepted, it would mean that a Director level officer retiring after putting in merely 2 years of service in their pay band (S-24) would draw more pension than a S-29 grade officer retiring before 1.1.2006 and that no S-29 grade officer, whether existing or holding post in future will be fixed at minimum of the pay band, i.e., Rs.37,400/-. Therefore, fixation of pay at Rs.37,400/- by terming it as minimum of the pay in the pay band is erroneous and ill conceived; and d) That even the Minister of State for Finance and Minister of State (PP) taking note of the resultant injustice done to the pre-11.2006 pensioners (pages 169-170) had sent formal proposal to the Department of Expenditure seeking rectification but the said proposal was turned down by the officer of the Department of Expenditure on the ground of financial implications.
Once the Central Government has accepted the principle of modified parity, the benefit cannot be denied on the ground of financial constraints and cannot be said to be a valid reason. 25 Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 30 . In view of what has been stated above, we are of the view that the clarificatiory OM dated 3.10.2008 and further OM dated 14.10.2008 (which is also based upon clarificatiory OM dated 3.10.2008) and OM dated 11.02.2009, whereby representation was rejected by common order, are required to be quashed and set aside, which we accordingly do. Respondents are directed to re-fix the pension of all pre-2006 retirees w.e.f. 1.1.2006, based on the resolution dated 29.08.2008 and in the light of our observations made above. Let the respondents re-fix the pension and pay the arrears thereof within a period of 3 months from the date of receipt of a copy of this order. OAs are allowed in the aforesaid terms, with no order as to interest and costs. It upheld that "central government provides that the "the revised pension in no case shall be lower than 50% of the sum of the minimum of the pay in the pay band and grade pay corresponding to revised pay scale from which the pensioner retired".
The said order did not pronounce that the revised pay scale for the principals who retired prior to 1.1.2006 was Rs 12,000-16,500 in PBIII with Grade Pay of Rs 7,600/ instead of Rs 10,000-15,5000 which becomes the revised pay scale after the conversion table by the said pay commission. In other words, the Full Bench upheld the principle of modified parity. The question of upgradation pay scale of the Principals was not an issue and no finding given in the said order which was upheld till the Supreme Court.
26Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 6.7 Subsequently various orders of the tribunal followed this order of the full bench of CAT and erroneously interpreted that whenever any upgradation takes place for a particular post and higher pay scales were granted to the incumbents serving there on, then all retirees, irrespective of their retirement on a point of time, shall get the pension based on the same upgraded scale. This is going beyond the principle upheld by the full bench of CAT and upheld by the Apex court. When full parity was not an issue and no verdict was given regarding that, the subsequent CAT orders and some of them upheld by the superior courts have accepted this erroneous interpretation and allowed the base pension based on the upgraded pay scales recommended by the subsequent pay commissions and accepted by the Government.
6.8 Over a period of time, the job requirement of organizations within government changes, some changes are gradual and others are significant and the nature of the jobs and posts undergo significant change. Depending on the job requirement, sometimes the educational qualifications and experience for a 27 Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 post also undergo change. Accordingly, the pay commissions also recommend different and upgraded pay scales to the incumbents in a particular rank. That applies prospectively to the serving employees and on their retirement, the upgraded pay scale becomes the basis on which they draw their pensions. But the retirees from the same rank prior to such upogardation are entitled the revised pay scale as per Vth pay commission principles "that the revised pension in no case shall be lower than 50% of the sum of the minimum of the pay in the pay band and grade pay corresponding to revised pay scale from which the pensioner retired."
Giving the benefit of full parity i.e. allowing the upgraded pay scales to the previously retired employees is against the policy of the Government. The government has rightly adopted the policy of Modified Parity both for the civilian retirees (as per the principle of Vth Pay commission recommendations) and to the veterans retired from the Defence Forces as per the 2015 OROP policy.
6.9 In view of the above, the judgments and CAT orders which have given full parity may be considered 28 Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 as judgments in personum than in judgments in rem as the issues framed here had not been framed in those judgments /orders and as full parity has not be declared and upheld as policy by the central government in those judgments /orders. Hence, the ratio of these judgments (OA‟s cited in paragraph 6.6) are not applicable to the present case where full parity sought between the retirees from the post of Principal prior to the upgradation of the pay scales and the retirees after the up gradation of the pay scale of the post of principal.
6.10. The orders in OA no. 2726/2019, OA No.2729/2019 (decided on 4.12.2022), OA No. 4138/2017 2 (decided on 23.2.2022) and OA No. 655/2021 (decided on 3.8.2021), have quote the order of this Tribunal in OA no. 2943/2017 decided on 3.8.2018 and upheld by the Delhi high Court in WP( C ) no. 2255 of 2019. OA no. 2493/2017 in the matter of J D Gupta V The Chief secretary of NCT of Delhi have extended full parity between the pre and post 2006 retirees without discussing the issue that the pay scale of the principal has been upgraded to new scale rather that just revising the pay scales by applying the conversion 29 Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 formula and putting the pre -revised pay scale in a new scale appropriate as per the pay commission pay bands . Even the spirit of full bench judgments in OA no 0655/2010 was also lost in those judgments/orders. The Full Bench in the said judgment dated 1.11.2011 upheld the modified parity than allowing full parity. According to OM F.No. 37/08-P& PW(A) dated 28.1.2013, " The pension of pre-2006 pensioners would be stepped up to 50% the sum of the sum of minimum of pay in the Pay Band and Grade Pay corresponding to the pre-revised pay scale from which the pensioner retired , as arrived at with the fitment tables annexed to the Ministry of Finance , department of expenditures OM No. 1/1/2008-IC dated 3oth august 2008." The Department of Pension and Pensioners‟ Welfare vide their Om No. 38/37/08 -P& PW (A) dated 30.6.2015 has further clarified :
"2. Several petitions were filed in Central Administrative Tribunal, Principal Bench, New Delhi inter alia claiming that the revised pension of the pre-2006 pensioners should not be less than 50% of the minimum of the pay band + grade pay, corresponding to the pre-revised pay scale from which pensioner had retired, as arrived at with reference to the fitment tables annexed to Ministry of Finance, Department of Expenditure OM No.ll1/2008-IC dated 30th 30 Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 August, 2008. Hon'ble CAT, Principal Bench, New Delhi vide its common order dated 1.11.201 lin OA No.655/2010 and three other connected OAs directed to re-fix the pension of all pre-2006 retirees w.e.f. 1.1.2006 based on the Resolution dated 29.8.2008 of the Department of Pension & Pensioners' Welfare and in the light of the observations of Hon'ble CAT in that order
3. The above order was challenged by the Government by filing Writ Petition No.1535/2012 in respect of OA No. 65512010 and WP No.2348- 50112 in respect of the three other connected OAs in the High Court of Delhi. The Hon'ble High Court in its ,common Order dated 29.4.2013 noted that the DoP&PW had, in the meanwhile, issued an OM No.38/37/08-P&PW (A) dated 28.1.2013 which provided for stepping up of pension of pre2006 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 had retired. Hon'ble High Court observed that the only issue which survived was, with reference to Paragraph 9 of OM dated 28.1.2013 which makes it applicable w.e.f. 24.9.2012 instead of 1.1.2006. Hon'ble High Court of Delhi dismissed the Writ Petition No.1535/2012 along with three other Writ Petitions vide its order dated 29.4.2013. Special Leave Petitions (No.23055/2013 and No.36148-50/2013) filed against the said order dated 29/4/2013 of the Hon'ble Delhi High Court have also been dismissed by the Hon'ble Supreme Court.
4. Accordingly, in compliance with the above judicial pronouncements, it has been decided that the pension/family pension of all pre-2006 pensioners/family pensioners may be revised in accordance with this Department's OM No.38/37/08-P&PW(A) dated 28.1.2013 with effect from 1.1.2006 instead of 24.9.2012. Further, this benefit has already been granted to the Applicants in OA No. 655/2010 vide OM of even No. dated 26/08/2014 read with OM dated 19/09/201~following dismissal of SLP (C) No.23055/2013 by the Hon'ble Supreme Court."31
Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021
7. The modified parity as recommended by the 5th CPC has been accepted by 6th and 7th Central Pay Commissions. The basis of modified parity is that the basic pay scale of the retiree would be brought at minimum pay band to which prerevise pay falls and that would constitute the base pension on which DRA etc. shall be granted. In other words, it does not allow the full parity between the retirees of the pre and post effective date of implementation. The post effective of retirees will have a separate base pension as compared to the pre effective date of retirees. This is the principle the based on which Government can create two class of retirees;- (i) pre specific retirees date and (ii)others who retired on or after the specified date. When the classification is made on reasonable and rational basis there is no violation of the Articles 14 of the Constitution of India.
8. In the instant case, the DOP&T vide OM dated 30.07.2015 has further clarified in the following manners:-
"6. The matter has been examined in consultation 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 32 Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 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 28.1.2013 would stand deleted. The arrears of revised pension would be payable with effect from 1.1.2006."
9. In other words, after acceptance of the recommendations of each CPCs, the pre-revised pay scales of a particular categories are brought by the corresponding multiplication factor and then the same is placed with the corresponding Pay Band. Particularly, the notification dated 12.5.2017 issued by the Department of Pension and Pensioners Welfare categorically states that while fixing the revising pay for the retirees prior to 01.01.2016, their notional pay will be fixed in the corresponding pay matrix of 7 th CPC at the appropriate pay scale or pay band at which they retired or died. This does not say that any upgradation which have taken place for a particular rank of officer with grade pay will also be given the same pay band to the retirees irrespective to the date of retirement. From time to time, the Government upgraded the pay scale of a particular category of employees. Such upgradations are applied prospectively and the employees who retired with such upgraded with pay scales are placed at different 33 Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 pay bands as far as for their fixation of pension than those retirees who retired prior to such upgradation.
10. As regards to the issue regarding maintainability of the present OAs on account of delay and laches, it is my considered opinion that present OAs have been filed for revision of pension. In Union of India & Ors vs. Darshan Singh in Civil Appeal No. 5151-5152 of 2018 decided on 13.08.2008, the Apex Court held that the issue relating to payment of pay and re-fixation of pay and pension fall under the category of continuing wrong. The relief can be granted even if there is long delay in seeking remedy with reference to the dates on which the continuing wrong commenced if such continuing wrong creates a continuing wrong source of injury. In the instant case, the applicants were of the notion that the continuing wrong has been happened that when the respondents refixed the revision of pay and pension w.e.f. 01.01.2016, rejecting the claim of the applicants for giving them the upgraded pay scale of the post of Deputy Director Education which was issued by the Government of Delhi vide their notification dated 29.06.2001. Accordingly, I do not agree with the contention of the 34 Court No. 5(Item No.25) (OA No.1540, 1541 & 1737of /2021 learned counsel for the respondents, the present OA suffer from delay and laches.
11. In view of the detailed analysis carried out in paragraphs 6-9 above, I am of the considered opinion that the Government‟s instructions dated 29.06.2001 is not applicable to the present applicants. In other words, the pay scale of Rs. 12,000-16,500/-is not applicable in case of the present applicants. Instead, pay scale of Rs. 10,000-15,200 is the appropriate pay scale for the retirees of pre 01.01.1996 period, to which the present applicants belong. Accordingly, the present OAs lack merit and deserved to be dismissed on account of merits.
12. In view of the above, the present OAs lack merit and hence are dismissed with no order as to costs.
(Dr. Chhabilendra Roul) Member (A) /mk/