Central Administrative Tribunal - Delhi
Hon Ble Shri G.George Paracken vs Union Of India Through Its Secretary on 20 February, 2015
Central Administrative Tribunal Principal Bench, New Delhi OA No.4098/2012 Reserved On:10.02.2015 Pronounced On:20.02.2015 Honble Shri G.George Paracken, Member (J) Ram Krishna Sharma S/o Late Shri Yagya Dutt Sharma R/o C/47-A, Bhagwati Garden Extnesin, Near Kakrola Mor, Najafgarh Road, New Delhi-110019. ...Applicant (By Advocate : Shri Yogesh Sharma) Versus 1. Union of India through its Secretary, Ministry of Earth Science, Prithvi Bhawan, Lodhi Road, New Delhi-110003. 2. The Director General of Meteorology India Meterorology Department, Mausam Bhawan, Lodi Road, New Delhi-110003. 3. The Secretary, Department of Pension & Pensioners Welfare, Ministry of Personnel, Public Grievances & Pension, Lok Nayak Bhawan, Khan Market, New Delhi-110003. 4. The Secretary, Department of Expenditure, Ministry of Finance, North Block, New Delhi-110001. 5. The Pay and Accounts Officer, Central Pension Accounting Officer, Government of India, Trikut-II, Bhikaji Cama Place, New Delhi-110066. 6. The Manager, State Bank of India, Centralized Pension Processing Centre, SBI Chandi Chowk Branch, Premises Chandi Chowk, Delhi-110006. Respondents (By Advocate: Shri Rajinder Nischal) ORDER
In this Original Application, the Applicant has challenged the impugned Annexure A-I revised Pension Payment Order dated 22.03.2012 issued by the Respondent No.3 reducing his basic pension from Rs.11,110/- to Rs.7920/- with effect from 01.01.2006. He is also aggrieved by the aforesaid order by which the said Respondent has started recovering Rs.3,09,912/- in equal instalment of Rs.4500/- per month. His prayer in this OA is to restore his pension to the original amount of Rs.11,110/- and to refund the recovered amount with interest.
2. The facts in the case are that the Applicant was appointed as a professional assistant (re-designated as Assistant Meteorologist Grade-II with effect from 10.10.1981). He got promotion as Meteorologist Grade-II and retired from that post on 31.05.2003. After the recommendation of the 6th Pay Commission, his pension was revised in terms of OM No.F.38/37/08-P&PW(A) dated 01.09.2008. According to the said OM, the pension/family pension of existing pre-2006 pensioners/family pensioners are consolidated with effect from 01.01.2006 by adding together the following four components:-
(i) The existing pension/family pension.
(ii) Dearness Pension, where applicable.
(iii) Dearness Relief upto AICPI (IW) average index 536 (Base year 1982 =100) i.e., @24% of Basic Pension/Basic family pension plus dearness pension as admissible vide this Departments OM No.42/2/2006-P&PW(G) dated 05.04.2006.
(iv) Fitment weightage @40% of the existing pension/family pension.
Further, according to the said OM, where the existing pension in (i) above includes the effect of merger of 50% of dearness relief w.e.f. 01.04.2004, the existing pension for the purpose of fitment weightage will be re-calculated after excluding the merged dearness relief of 50% from the pension and the amount so arrived at will be regarded as consolidated pension/family pension with effect from 01.01.2006. The other stipulation in the said OM is that the fixation of pension will be subject to the provision that the revised pension, in no case, shall be lower than fifty percent of the minimum of the pay in the pay band plus the grade pay corresponding to the pre-revised pay scale from which the pensioner had retired. In the case of HAG+ and above scales, this will be fifty percent of the minimum of the revised pay scale.
3. In terms of the aforesaid OM, the Applicants revised pension was fixed at Rs.11,110/- with effect from 01.01.2006. However, according to him, without assigning any reason, the Respondents have issued the revised PPO dated 22.03.2012 refixing his revised pension at Rs.7920/- with effect from 01.01.2006. As a result, the bank authorities have decided to recover an amount of Rs.3,09,912/- in monthly instalment of Rs.4500/-per month from the pension of June, 2012. When the Applicant got the reduced pension with effect from June, 2012 and came to know that the revised PPO dated 22.03.2012 was issued, he made a representation dated 07.06.2012 followed by reminders dated 13.07.2012, 06.08.2012 etc. but the Respondents have not given any reply to those representations. However, the bank authorities, vide their letter dated 12.09.2012, referred the case of the Applicant to Respondent No.5 for review and clarified the position but till date no clarification was given by them. As a result, the recovery was being made at the rate of Rs.4500/- from his pension every month.
4. The contention of the Applicant is that his pension was correctly and rightly fixed by the Respondents from 01.01.1996 at Rs.11,110/- and in the impugned PPO dated 22.03.2012 refixing the same to Rs.7920/- per month that too retrospectively is illegal and arbitrary. In this regard, the learned counsel for the Applicant has relied upon the judgment of the Full Bench of this Tribunal in the case OA No.655/2010 - Central Govt. SAF (S-29) Pensioners Association Vs. Union of India and Others decided on 01.11.2011. The relevant part of the said judgment reads as under:-
25. In order to decide the matter in controversy, at this stage, it will be useful to extract the relevant portions of para 5.1.47 of the VI CPC recommendation, as accepted by the Resolution dated 29.08.2008, para 4.2 of the OM dated 1.9.2008 and subsequent changes made in the garb of clarification dated 3.10.2008, which thus read:
Resolution No.38/37/8-P&PW(A) dated 29.08.2008-Para 5.1.47 (page 154-155) Para 4.2 of OM DOP&PW OM No. No.38/37/8-P&PW(A) dated 1.09.2008 (page 38 of OA) OM DOP&PW OM No. No.38/37/8-P&PW(A) dated 3.10.2008 The fixation as per above will be subject to the provision 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 the grade pay thereon corresponding to the prerevised pay scale form which the pensioner had retired.
The fixation as per above will be subject to the provision 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 plus (and) the grade pay (thereon) corresponding to the prerevised pay scale from which the pensioner had retired.
The Pension Calculated at 50% of the [sum of the] minimum of the pay in the pay band [and the grade pay thereon corresponding to the pre-revised pay scale] plus grade pay would be calculated (i) at the minimum of the pay in the pay band (irrespective of the pre-revised scale of pay plus) the grade pay corresponding to the pre-revised pay scale. For example, if a pensioner had retired in the pre-revised scale of pay of Rs.18400-22400, the corresponding pay band being Rs.37400-67000 and the corresponding grade pay being Rs.10000 p.m., his minimum guaranteed pension would be 50% of Rs.37400+Rs.10000 (i.e. Rs.23700) Strike out are deletions and bold letter addition Strike out are deletions and bold letters addition.
26. As can be seen from the relevant portion of the resolution dated 29.8.2008 based upon the recommendations made by the VI CPC in paragraph 5.1.47, it is clear that the revised pension of the pre-2006 retirees should not be less than 50% of the sum of the minimum of the pay in the Pay Band and the grade pay thereon corresponding to the pre-revised pay scale held by the pensioner at the time of retirement. However, as per the OM dated 3.10.2008 revised pension at 50% of the sum of the minimum of the pay in the pay band and the grade pay thereon, corresponding to pre-revised scale from which the pensioner had retired has been given a go-by by deleting the words sum of the and grade pay thereon corresponding to the pre-revised pay scale and adding irrespective of the pre-revised scale of pay plus implying that the revised pension is to be fixed at 50% of the minimum of the pay, which has substantially changed the modified parity/formula adopted by the Central Government pursuant to the recommendations made by the VI CPC and has thus caused great prejudice to the applicants. According to 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. According to us, deletion of the words sum of the and grade pay thereon corresponding to the pre-revised scale and addition of the words irrespective of the pre-revised scale of pay plus, as introduced by the respondents in the garb of clarification vide OM dated 3.10.2008 amounts to carrying out amendment to the resolution dated 29.08.2008 based upon para 4.1.47 of the recommendations of the VI CPC as also the OM dated 1.9.2008 issued by the Central Government pursuant to the aforesaid resolution, which has been accepted by the Cabinet. Thus, such a course was not permissible for the functionary of the Government in the garb of clarification, that too, at their own level without referring the matter to the Cabinet.
27. We also wish to add that the Pay Commissions are concerned with the revision of the pre-revised pay scales and also that in terms of Rule 34 of the CCS (Pension) Rules, 1972 the pension of retirees has to be fixed on the basis of the average emoluments drawn by them at the time of retirement. Thus, the pre-revised scale from which a person has retired and the emoluments which he was drawing at the time immediately preceding his retirement are a relevant consideration for the purpose of computing revised pension and cannot be ignored. As such, it was not permissible for the respondents to ignore the pre-revised scale of pay for the purpose of computing revised pension as per the modified parity in the garb of issuing the clarifications, thereby altering the modified parity/formula, which was accepted by the Central Government vide its resolution dated 29.08.2008.
28. The above view is also fortified by paras 137.15, 137.20 and 137.21 of the V CPC recommendations, as reproduced below, leading to modified parity, which were also accepted by the VI CPC and accepted by the Central Government and thus read:
Immediate relief to pensioners 137.15 While the work relating to revision of pension of pre 1.1.1986 retires by notional fixation of their pay shall have to be undertaken by the pension sanctioning authorities to be completed in a time-bound manner, we suggest that the pensioners should be provided some relief immediately on implementation of our recommendations. The pension disbursing authorities may be authorized to consolidate the pension by adding (a) basic pension; (b) personal pension, wherever admissible; (c) dearness relief as on 1.1.1996 on basic pension only; (d) Interim Relief (I and II) and (e) 20% of basic pension. The consolidated pension shall be not less than 50% of the minimum pay, as revised by the Fifth CPC, of the post held by the pensioner at the time of retirement. This may be stepped up by the pension disbursing authorities, wherever feasible, to the level of 50% of the minimum pay of the post held by the pensioner at the time of retirement. (emphasis supplied) xxx xxx xxx xxx xxx Modified parity conceded 137.20 We have given our careful consideration to the suggestions. While we do not find any merit in the suggestion to revise the pension of past retirees with reference to maximum pay of the post held at the time of retirement, as revised by the Fifth CPC, there is force in the argument that the revised pension should be not less than that admissible on the minimum pay of the post held by the retiree at the time of retirement, as revised by the Fifth CPC. We have no hesitation in conceding the argument advanced by pensioners that they should receive a pension at least based on the minimum pay of the post as revised by Fifth Pay Commission in the same way as an employee normally gets the minimum revised pay of the post he holds. We recommend acceptance of this principle, which is based on reasonable considerations. (emphasis supplied).
Principle enunciated 137.21 The Commission has decided to enunciate a principle for the future revision of pensions to the effect that complete parity should normally be conceded up to the date of last pay revision and modified parity (with pension equated at least to the minimum of the revised pay scale) be accepted at the time of each fresh pay revision. This guiding principle which we have accepted would assure that past pensioners will obtain complete parity between the pre-1986 and post-1986 pensioners but there will be only a modified parity between the pre-1996 and post-1996 pensioners. The enunciation of the principle would imply that at the time of the next pay revision say, in the year 2006, complete parity should be given to past pensioners as between pre-1996 and post-1996 and modified parity be given between the pre-2006 and post-2006 pensioners. (emphasis supplied)
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.
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.
5. He has also relied upon the judgment of the Apex Court in the case of V. Kasturi Vs. Managing Director, State Bank of India, Bombay and Another JT 1998 (7) SC 147. The relevant part of the said judgment reads as under:-
28. If the person retiring is eligible for pension at the time of his retirement and if he survives till the time by subsequent amendment of the relevant pension scheme, he would become eligible to get enhanced pension or would become eligible to get more pension as per the new formula of computation of pension subsequently brought into force, he would be entitled to get the benefit of the amended pension provision from the date of such order as he would be a member of the very same class of pensioners when the additional benefit is being conferred on all of them. In such a situation the additional benefit available to the same class of pensioners cannot be denied to him on the ground that he had retired prior to the date on which the aforesaid additional benefit was conferred on all the members of the same class of pensioners who had survived by the time the scheme granting additional benefit to these pensioners came into force. The line of decisions tracing their roots to the ratio of Nakara's case (AIR 1983 SC 130) (supra) would cover this category of cases.
6. He has also relied upon the Central Civil Services (Pension) Amendment Rules, 2011 notified on 08.06.2011. The relevant part of the said Notification reads as under:-
(6) in Rule 49
(a) after sub-rule (1), the following should be inserted, namely:-
(1A) The dearness allowance admissible on the date of retirement shall also be treated as emoluments for the purpose of sub-rule(1).
(b) for sub-rule (2), the following shall be substituted, namely:-
(2) In the case of a Government servant retiring in accordance with the provisions of these rules after completing service of not less than ten years, the amount of pension shall be calculated at fifty per cent of emoluments of average emoluments, whichever is more beneficial to him, subject to a minimum of three thousand and five hundred rupees per mensem and a maximum of forty-five thousand rupees per mensem.
7. He has also relied upon the following judgments in support of his argument that no recovery on account of excess payment shall be made if the alleged overpayment has been made not because of misrepresentation of the Government employee concerned:-
(i) S. Leikh Abdul Rashid and Others Vs. State of J&K, JT 2008 (1) SC 127.
(ii) Union of India Vs. Narendra Singh 2008 (1) SCC (L&S) 547.
(iii) Duryodhan Lal Jatav Vs. State of U.P. Another 2005 (3) ATJ 56.
(iv) Shyam Babu Verma Vs. U.O.I. and Others 1994 (2) SCC 521.
(v) State of Orissa Vs. Advail Charan Mohandty 1995 Supp.(1) SCC 470.
(vi) U.O.I. Vs. Sita Ram Dheer 1994 SCC(L&S) 1445.
(vii) Nand Kishore Sharma Vs. State of Bihar 1995 Supp.(3) SCC 722.
(viii) State of Karnataka Vs. Mangalore University Non-Teaching Employees Association 2002 (3) SCC 302.
8. According to the Respondents, after the acceptance of the recommendations of the Central 6th Pay Commission, the basic pension of the pre-2006 was revised in terms of Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Pension and Pensioners Welfare Memorandum No.F.38/37/08/P&PW(A) dated 01.09.2008 and the pension is revised in terms of para 4.1 and 4.2 which are reproduced as under:-
4.1 The pension/family pension of existing pre-2006 pensioners/family pensioners are consolidated with effect from 01.01.2006 by adding together the following four components:-
(i) The existing pension/family pension.
(ii) Dearness Pension, where applicable.
(iii) Dearness Relief upto AICPI (IW) average index 536 (Base year 1982 =100) i.e., @24% of Basic Pension/Basic family pension plus dearness pension as admissible vide this Departments OM No.42/2/2006-P&PW(G) dated 05.04.2006.
(iv) Fitment weightage @40% of the existing pension/family pension.
Where the existing pension in (i) above includes the effect of merger of 50% of dearness relief w.e.f. 01.04.2004, the existing pension for the purpose of fitment weightage will be re-calculated after excluding the merged dearness relief of 50% from the pension.
The amount so arrived at will be regarded as consolidated pension/family pension with effect from 01.01.2006.
4.2. The fixation of pension will be subject to the provision that the revised pension, in no case, shall be lower than fifty percent of the minimum of the pay in the pay band plus the grade pay corresponding to the pre-revised pay scale from which the pensioner had retired. In the case of HAG+ and above scales, this will be fifty percent of the minimum of the revised pay scale.
They have further submitted that as per para 4.1 above, 50% of the Grade Pay was more beneficial in his case, hence his basic was revised to Rs.7920/- per month which was wrongly fixed by the Bank as Rs.11,110/- per month under the provisions contained in para 4.2 above. When the aforesaid mistake came to the notice of the Respondents, they had to issue the revised PPO dated 22.03.2012.
9. I have heard the learned counsel for the Applicant Shri Yogesh Sharma and the learned counsel for the Respondents Shri Rajinder Nischal. It is seen that the Applicant was placed in the revised pay scale of Rs.15600-39100 with Grade Pay of Rs.6600/- with effect from 01.01.2006. The Applicant was sanctioned revised basic pension of Rs.11,110/- which is the 50% of the minimum of the pay band i.e., Rs.15,600 plus Grade Pay of Rs.6600/-. The Respondents have not explained in their reply as to how the said amount is reduced to Rs.7920/- w.e.f. 01.01.2006 when in the OM dated 01.09.2008, there is a specific stipulation that the fixation of pension will be subject to the provision that the revised pension, in no case, shall be lower than fifty percent of the minimum of the pay in the pay band plus the grade pay corresponding to the pre-revised pay scale from which the pensioner had retired.
10. I, in the above facts and circumstances of the case, find merit in the contention of the Applicant that his revised pension of Rs.11,110/- per month fixed w.e.f. 01.01.2006 has been arbitrarily reduced to Rs.7920/- per month with retrospective effect and ordered to recover an amount of Rs.3,09,912/- at the rate of Rs.4500/- per month in equal instalments. Consequently, this OA is allowed. Accordingly, the impugned revised PPO dated 22.03.2012 is quashed and set aside. Respondents are directed to restore his pension at the rate of Rs.11,110/- w.e.f. 01.01.2006 and refund the amount so far recovered from his pension with immediate effect with 9% interest. The aforesaid directions shall be complied with, within a period of 2 months from the date of receipt of a copy of this order.
11. There shall be no order as to costs.
(G. George Paracken) Member (J) Rakesh