Central Administrative Tribunal - Hyderabad
G.K. Murthy vs Union Of India (Uoi) And Ors. on 29 July, 1998
JUDGMENT R. Rangarajan, Member (A)
1. None for the applicant. Heard Mr. D.F. Paul, learned Counsel for the respondents.
2. The applicant in this OA had retired as Senior Loco Inspector (Traction), Khazipet on 30.04.93 in the grade of Rs. 2375-3500/-. Earlier the applicant had filed OA. 492/94 on the file of this Bench.
3. Incentives are granted to the Drivers to opt to come to Loco Supervisory cadre from time to time. One such incentive was granted by letter No. E(P&A) II/83/RS- 10(iv), dated 25.11.92. That incentive had come into force w.e.f., 1.1.93. Loco Inspectors were granted an incentive of an add-on-element of 30% of basic pay w.e.f., 1.1.93 whereas the Power Controller/Crew Controller were given a special pay of Rs. 300/- p.m. by the letter dated 25.11.92. Para 5.5,5.6., 6.1 and 6.2 were relevant in the letter dated 25.11.92. That has been extracted in the judgment in OA. 492/94. The applicant had received the benefit of add-on-element of 30% of basic pay for less than 10 months as that scheme was introduced w.e.f., 1.1.93 and he had retired on 30.4.93. His pension was fixed on pro-rata basis on the incentive received by him for 4 months. Aggrieved by the fixation of pension as above he filed OA. 492/94 praying for the relief that the restricted add-on-element restricted on the basis of the pro-rata service during the said period should be added fully for 10 months even though he had retired within 10 months from the date of introduction of the scheme i.e., w.e.f., 1.1.93 for purpose of deciding the pensionary benefits.
4. That OA was disposed of by order dated 28.11.96. Points to be considered by the Railway Administration before restricting the pension on pro rata basis of the add-on-element were examined. That OA was disposed of by directing the respondent No.l and respondent No. 2 in that OA to reconsider the scheme especially the payment of pro-rata pension on the add-on-element as provided for in paras 5.5., 5.6, 6.1 and 6.2 of the scheme in the light of the observation made in that judgment. Six months time was given for compliance and further a direction was also given to inform the applicant suitably after considering their cases.
5. The Railway Board had complied with the direction by issuing the impugned letter to the applicant herein by letter D.C. No.P&A/II/97/RSI dated 9.7.97 communicated to the applicant by letter No. CP/21/EL/Court Cases dated 11.07.97 (Annexure)-II at Page-15 to the OA) rejecting the request of the applicant for relaxation of the provisions of Rule-50 of the Railway Services (Pension) Rules, 1993 to allow the benefit of add-on-element of 30% of basic pay for 10 months for Inspectors instead of pro-rata basis on the actual period of service under the scheme contained in Board's letter dated 25.11.92 ibid.
6. This OA is filed to set aside the impugned letter No. P&A/II97/RSI dated 9.7.97 communicated through the letter No. CP/21/EI/Court Cases dated 11.7.97 of R-3 by holding the same as arbitrary, illegal and without jurisdiction and violative of Articles 14,16 and 300-A of the Constitution of India or in the alternative praying for a declaration that Clause 5(5) of the first respondents' letter No. E(P&A)/II/83/RS-10 (iv) dated 26.11.92 to the extent of imposing 10 months service after 1.1.93 for grant of add-on-element of 30% of basic pay for the computation of pensionary benefits is totally arbitrary, illegal and violative of Articles 14, 16 and 300-A of the Constitution of India and for a consequential direction to the respondents to fix and pay the pensionary and other retirement benefits to the applicant by taking 10 months average emoluments (adding full 30% add-on-element) as on the date of this retirement i.e., 30.4.93 as Senior Loco Inspector in the grade of Rs. 2375-3500/- by paying him arrears of pay and interest etc.
7. The applicant in this OA refuted the submission of the respondents that junior getting higher pensionary benefits than the senior by virtue of longer stint in the cadre is not relevant to the issue. Alternatively he submits that the senior in the same cadre is being deprived of the right to equal pay and pension by virtue of the impugned arbitrary condition of 10 months of service. He also submits that there are no sound or justifiable grounds for refusing to relax the Rule-50 of the Railway Services (Pension) Rules, 1993. The refusal is violative of the Constitutional provisions submits the applicant. But clear reasons have not been brought out in the OA affidavit to say so.
8. In the reply the respondents have only extracted the contents of the Rail way Board's letter dated 9.7.97 and submit that the letter speaks for itself.
9. While admitting this OA on 23.12.97 it was observed as follows:-
"It will be appreciated of the counter affidavit meets the various observations and directions contained in the judgment dt. 28.11.96 in OA. 492/94 and 439/ 93, in amplification of the stand of the respondents contained in the impugned order at Annexure-II to the OA."
10. In pursuance of that direction given by the Bench while admitting the OA, the Railway Board has addressed a letter No. D.O. E(P&A) II-98/RS-11 dated 12.6.98 addressed to one Sri K. Thiagarajan, CPO (A) of SC Railway further clarifying the earlier impugned letter of the Railway Board dated 9.7.97. The second letter dated 12.6.98 is the reported to be adetailed review of the earlier letter and also the scheme dated 25.11.92. But the substance of this letter is more or less same as the substance in the earlier letter dated 9.7.97.
11. Before going into the various contentions raised in this OA it is to be noted that the earlier OA No. 492/94 was disposed of suggesting various points to be considered before finalising the issue. Those points have been noted in para-13. But it looks that all the points mentioned in that para had not been considered in the reply. This letter only justifies the action of the respondents in granting the pensionary benefits on pro-rata basis on the add-on-element to the applicant on the ground that even his seniors retired earlier to 1.1.93 are getting less pension.
12. It is also to be noted that in the judgment in previous OA the Rule-50 of the Railway Services (Pension) Rules, 1993 was not set aside nor it had set aside the para-5.5 of the scheme dated 25.11.92. The direction given in that OA is for the consideration of the various points formulated in the body of the judgment before allowing the pro-rata add-on-element only for purpose of fixing the pension.
13. Though the respondents in their reply had not considered all the points mentioned in the judgement in OA. 492/94 that should not be taken as a reason for allowing this OA. What is to be considered is the implication of the full add-on-element even if the applicant had worked for less than 10 months after getting the add-on-element for fixing his pension and other pensionary benefits. This has arisen especially now in view of the orders passed by the Government of India accepting the recommendations of the 5th Pay Commission.
14. OA 492/94 was disposed of on 28.11.96 before the acceptance of the report of the 5th Pay Commission report by the Government. Hence, the circumstances which prevailed on the date of passing of the judgment in OA. 492/94 had undergone a great change in view of the introduction of the 5th Pay Commission recommendations. The 5th Pay Commission recommendations had already necessitated higher fixation of pay and payment of huge arrears w.e.f. 1.1.96. That had caused a heavy burden on the Government. The direction of the Tribunal should invariably take note of the prevalent circumstances when ordering for financial benefits which may cause heavy financial burden on the Government, as the pay and allowances are paid to the Government servant from the public ex-chequer. Restraint should be shown by the Tribunal while disposing of the application which causes heavy burden on the public ex-chequer. With that observation in mind the OA has to be disposed of.
15. Rule-49 of the Railway Services (Pension) Rules, 1993 gives the meaning for the expression emoluments and average emoluments. Rule-50 of the said rule is the method of determining the average emoluments. This rule reads as below:-
"Average emoluments: Average emoluments shall be determined with reference to the emoluments drawn by a railway servant during the last ten months of his service."
16. When a Railway servant had retired within 10 months after the introduction of the 5th Pay Commission recommendations i.e., w.e.f., 1.1.96, the average emoluments of the Railway servant for purpose of fixing the pension has to be calculated taking into account the pay drawn by him earlier to 1.1.96 in the 4th Pay Commission scales of pay for computing the 10 months average pay. In that case if a retired employee requests for taking 10 months average pay without taking into account earlier pay drawn by them earlier to 1.1.96 then it would cause higher pension fixation than what is provided for in Rule 50 for calculating average emoluments thereby causing heavy burden on the railways in payment of pension and pensionary arrears. In the present case also the add-on-element as stipulated in para-5.5 of scheme is not adhered the result will be similar to the above situation of fixing pension of the retired employees retired within 10 months from 1.1.96. In that view, under the present circumstances giving a direction as prayed for in this OA will lead to demands from other sections of the employees to relax Rule 50 and re-fix their pension and pensionary benefits if they had retired within 10 months after the introduction of the 5th Pay Commission scales of pay. The relief if granted as prayed for in this OA will be quoted as a precedence in the other cases for relaxation of pension Rule 50 in fixing pension of the retirees retired short of 10 months after the introduction of the 5th Pay Commission scales of pay. This in my opinion will lead to huge out flow of money which is not desirable especially when the country is undergoing severe financial crunch. If it is given to the Railway employees similar demand would emanate from the other employees of the Government of India resulting in a huge expenditure to the Government. That is why even if the impugned order had not considered the points noted in the judgment in OA. 492/94 fully that should not be a reason to allow this OA and this OA has to be considered in the light of the financial burden involved.
17. The applicant himself in OA. 492/94 had categorically stated that the cut of dale of 1.1.93 is not arbitrary and is reasonable. Hence, the question of any violation of constitutional provision does not arise. Hence, the statement that the impugned order violated the Articles 14, 16 and 300(A) of the Constitution of India cannot be taken in the face value in view of the submission of the applicant in the earlier OA in not objecting to fix the cut of date as 1.1.93.
18. The respondents submit that the junior getting higher pensionery benefits than the senior by virtue longer stint in the cadre is not a new phenomenon in the Railway and such a situation may arise whenever a new scheme is introduced and very often the seniors suffer a loss in pension in comparison with the juniors who retired at a later stage. The respondents also submit that the applicant is benefited even though the pension is fixed on pro-rata basis on the add-on-element compared to his seniors who retired prior to him before 1.1.93. This argument is not very valid in so far as the relaxing of Rule 50 of the Railway Services (Pension) Rules, 1993. But relaxation of the Rule in the present case as stated earlier will lead to a heavy expenditure on account of the similar demand being put in by the other sections of the employees, in view of the introduction of the 5th Pay Commission scales of pay.
19. Hence, under the present circumstances allowing this OA is detrimental to the economy of the country and hence has to be rejected. The pension of the applicant had been increased and fixed due to the implementation of the 5th Pay Commission report. Even though some minor relief could be obtained by the applicant in this OA if this OA is allowed, such minor benefits have to be sacrified by him in the larger interest of the nation.
20. In view of what is stated above, the OA is dismissed. No costs.