Central Administrative Tribunal - Ernakulam
Sivasankaran P vs 2. The General Manager on 25 July, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 100 of 2012
Thursday, this the 25th day of July, 2013
CORAM:
Hon'ble Mr. K. George Joseph, Administrative Member
1. Sivasankaran P., 74 years, Retd.ELC/B/PGT,
Sreehari, Paramesh Nagar, Olavakkaode, Palakkad - 678 002.
2. M.Kesavanunni, 77 years, ELC/PGT/Rly,
Sarang, Aloor, Thiruvalathoor (P.O.), Kodumba, Palakkad.
3. P.N.Ramanathan, 75 years, ELC/PGT/Rly, Palakeeshil Sreevihar,
Ambat Lane, Chittur, Palakkad - 678 101. ..... Applicants
(By Advocate - Mr. U. Balagangadharan)
V e r s u s
2. The General Manager, Southern Railway, Park Town,
Chennai - 600 103.
3. The Divisional Railways Manager,
Southern Railway, Palakkad Division, Palakkad - 678 002.
4. The Senior Divisional Finance Manager,
Southern Railway, Palakkad Division, Palakkad - 678 002.
5. The Secretary, Department of Personnel & Training,
North Block, New Delhi - 110 001. ..... Respondents
(By Advocates - Mrs. Sumathi Dandapani, Sr.
Mr. K.M. Anthru)
This application having been heard on 11.07.2013, the Tribunal on
25.07.2013 delivered the following:
O R D E R
The applicants are retired Electrical Chargeman (B) in the Southern Railway. The post of Electrical Chargeman (B) carried the scale of pay of Rs. 1400-2300/-. On the basis of basic pay they were drawing in the above pay scale the pension of the 1st, 2nd and 3rd applicants was fixed upon their retirement on 31.8.1995, 31.3.1992 and 31.5.1993 at Rs. 846/-, Rs. 838/- and Rs. 697/- respectively. The pension of the applicants was revised with effect from 1.1.1996 by fixing their pay in the revised pay scale of Rs. 5000-8000/- in the Vth pay revision. The corresponding replacement scale of Rs. 5000-8000/- is Rs. 9300-34,800/- with Grade Pay of Rs. 4200/- in the VIth pay revision. Pursuant to the order of the Department of Personnel and consequential orders of Railways the 1st applicant's pension had been fixed at Rs. 6750/- as per letter dated 22.12.2008 at Annexure A5. Subsequently the pension of the 1st applicant had been reduced to Rs. 5817/- with retrospective effect from 1.1.2006 from Rs. 6750/- and the excess pension is sought to be adjusted against the 60% pension payable to him as per Annexure A5(a) order dated 30.7.2009. In the case of the 2nd and 3rd applicants' pension had been fixed at Rs. 5767/- and Rs. 5310/- respectively without granting the benefit of corresponding scale of Rs. 9300-34800/- with Grade Pay of Rs. 4200/-. The pension of the applicant is now re-fixed taking into account the scale of pay of Rs. 1400-2300/- in the corresponding replacement scale of Rs. 4500-7000/- as the pay scale attached to the post of Electrical Chargeman (designated as Junior Engineer). Representation has been made to the 1st respondent to refund the adjusted amount and fix the pension taking into account the scale of pay of Rs. 9300-34800/- as the normal replacement scale of Rs. 5000-8000/- and grant pension of Rs. 6750/- with effect from 1.1.2006. Aggrieved by the rejection of their representations vide order dated 16.9.2011 at Annexure A8, this Original Application has been filed by the applicants for the following reliefs:-
"1. Call for the records leading Anx. A.8 and set aside it as legally unsustainable.
2. Direct the respondents to fix the pension of the applicants at Rs. 6750/- with effect from 1.1.2006 and disburse arrears thereto with interest following the Railway Board order at Annexure A4 and A1 of the Railway Board read with Annexure A2 and Annexure A3 of Department of Personnel and PG.
3. Declare that the applicants are entitled for revised pension of Rs. 6750/- with effect from 1.1.2006.
4. Grant such other relief that the Hon'ble Court may feel fit in the facts and circumstances of the case."
2. The applicants contended that the refusal of the 4th respondent to fix their basic pension at Rs. 6750/- taking into account the pay band of Rs. 9300-34800/- with Grade Pay of Rs. 4200/- as the corresponding replacement scale of Rs. 5000-8000/- in which the applicants drew pension is arbitrary. While dealing with the revision of pension, the issue of holding the post in the revised scale of pay cannot be pressed into account. It is illegal and arbitrary to deny the applicants the benefit of revised pension at 50% of the minimum of the revised pay band attached to the post held by them at the time of retirement. The scale of pay of Rs. 1400-2300/- has been revised to Rs. 5000-8000/- as per Railway Service (Revised Pay) Rules, 1997. It cannot be reduced with retrospective effect by an executive order alleging mistake in the replacement scale. The post of Electrical Chargeman held by the applicants is re-designated as Junior Engineer Grade-II and the Revised Pay Rules granted the replacement scale of Rs. 5000-8000/- to the said post. All the serving employees are drawing at present salary in the pay band of Rs.9300-34800/- with Grade Pay of Rs. 4200/-. Therefore, there is no legal or factual justification to reduce the pension of the applicants.
3. The respondents contested the OA. They contended that the present OA is hit by the principle of estoppel and barred by limitation as the applicants had filed OA No. 559 of 2011 earlier and had prayed to re-fix their pension in terms of Annexure A1 which is issued more than 14 years back. The applicants, working as Electrical Chargeman-B, retired on 31.8.1995, 31.3.1992 and 31.5.1993 respectively in the pay scale of Rs. 1400-2300/-. The post of Electrical Chargeman-B was re-designated as Junior Engineer Grade-II (Electrical) in 1996. The revised pay scale in accordance with the Vth Pay Commission applicable to scale of Rs. 1400- 2300/- is Rs. 4500-7000/-. Since the applicants were not in service as on 1.1.1996, the pay scale of Rs. 5000-8000/- allotted to Electrical Chargeman- B/Junior Engineer Grade-II is not applicable to them because the pension of all pensioners irrespective of the date of their retirement shall not be less than 50% of the minimum in the revised scale of pay with effect from 1.1.1996 of the post last held by the pensioner, as per Annexure R4 dated 20.8.2001. With regard to pension of pre-1996 retired Railway servants, the scale of pay introduced with effect from 1.1.1996 should be the one that corresponds to the scale of pay held by the Railway Servant at the time of retirement while in service and not the higher replacement of scale of pay introduced with effect from 1.1.1996 or thereafter. As the applicants were not in service as on 1.1.1996 they have no case that they were holding the higher replacement scale of pay of Rs. 5000-8000/- allotted to the post in the Vth pay revision and hence they are not entitled for revision of pension applicable to the scale of pay of Rs. 5000-8000/- but entitled to revision of pension based on the equivalent pay of Rs. 4500-7000/- applicable to pay scale of Rs. 1400-2300/- which they were holding at the time of retirement. There was an inadvertent error in revising the pension of the 1st applicant in Annexure A5 which was corrected while issuing Annexure A5(a) pension payment order on 30.7.2009. The claim of the applicants for fixing the minimum pension at Rs. 6750/- is not governed by any rules on the subject. The applicants were not holding the pay scale of Rs. 5000-8000/- ever in their service. The applicants happened to draw higher ineligible pension with effect from 1.1.1996 which will not form a concrete base for the applicants to derive undue benefits in the VIth pay revision. The higher replacement scale of Rs. 5000-8000/- was allowed to only those who were in service in 1.1.1996. To those who retired prior to 1.1.1996 the normal replacement scale will be applicable as conveyed by Railway Board under the letters dated 20.8.2001, 1.10.2001 & 2.2.2010 (Annexures R4, R5 and R6). The entry level qualification for Electrical Chargeman-B/Junior Engineer Grade-II is Diploma in Engineering, whereas the 1st & 2nd applicants possess SSLC and the 3rd applicant is SSLC failed as per their service records. Therefore, the applicants have no case that they were possessing higher entry level qualification prescribed for the post of Electrical Chargeman Grade-B/Junior Engineer Grade-II. The applicants are entitled to draw pension only in the corresponding scale as on 1.1.1996 for the scale of pay held by them at the time of retirement while in service. This has been upheld by the Hon'ble Supreme Court vide judgment dated 23.11.2006 in K.S. Krishnasamy Vs. Union of India (CA Nos. 3173, 3183, 3189 and 3190 of 2006). The applicants were granted pension in the scale of pay of Rs. 5000-8000/- from 1.1.1996 till 31.12.2005 by an inadvertent error. The overpaid amount will be recovered from their pension in equal monthly installments. As per Railway Board orders at Annexures R4, R5 & R6 pension of pre-1996 retirees have to be fixed based on normal replacement scales. This has been upheld by many Benches of this Tribunal, Hon'ble High Courts as well as the Apex Court. The claim of the applicants for payment of pension at Rs. 6750/- taking into account pay band-2 of Rs. 9300-34800/- with Grade Pay of Rs. 4200/- as correct replacement scale of Rs. 5000-8000/- is not sustainable.
4. In the rejoinder statement filed by the applicants it is submitted that the applicants' pension was revised based on the revised scale of pay of Rs. 5000-8000/- as the replacement scale of Rs. 1400-2300/-. The replacement scale of Rs. 5000-8000/- as per the recommendation of the VIth CPC is Rs. 9300-34800/- plus Grade Pay of Rs. 4200/-. Therefore, the applicants are entitled to a pension of Rs. 6750/- being the 50% of the minimum scale as provided under paragraph 4.2 in Annexure A2. The applicants held the post of erstwhile Junior Engineer Grade-II. The decision of the Hon'ble Supreme Court in Krishnaswamy's case is not applicable to the applicants as it pertains to high ranking senior posts where replacement scales were granted subsequent to the publication of recommendations of Pay Commission on the basis of demands. The Hon'ble High Court of Punjab & Harayana in CWP No. 9581 of 2011 held that once the pay scale of the post of Mistry Supervisor deemed to be revised then their pension is also required to be re- fixed with effect from 1.11.2003, as it was a case of Mistry Supervisor on acquiring the new nomenclature as Junior Engineer Grade-II. The SLP before the Hon'ble Supreme Court against the above judgment was dismissed as per order CC4943/2012 dated 20.6.2012. Other Railways have fixed pension in the replacement scale of Rs. 5000-8000/- to persons who have held the scale of Rs. 1400-2300/- as per Annexure A9, A9(a), A9(b), A9(c), A9(d) and A9(e). On the revision of pay in accordance with the recommendation of the VIth Central Pay Commission it is only to be seen that what is the replacement scale of Rs. 5000-8000/- which is undisputedly the PB-2 with Grade Pay of Rs. 4200/-.
5. In the additional reply statement filed on behalf of the respondents it was submitted that the applicants have only the right to claim the benefits attached to the post at the time of their service and no right to claim the benefits attached to the post after their retirement from service. The Hon'ble Supreme Court in Krishnaswamy's case observed that it was common knowledge that the corresponding increase in any Pay Commission is of the scale of pay and not the post. Since the applicants were not in service as on 1.1.1996 the pay scale of Rs. 5000-8000/- allotted to Junior Engineer Grade-II (Electrical) is not applicable to them. Consequently they are not entitled to revision of their pension in pay band-II of Rs. 9300-34800/- with grade pay of Rs. 4200/- in the VIth pay revision which is the replacement scale given to the staff holding the pay scale of Rs. 5000-8000/-. The applicants have no case that they had ever been holding the pay scale of Rs. 5000-8000/- in their entire service. Since the applicants did not retire as Junior Engineer Grade-II they can claim the benefits attached to the post of Electrical Chargeman-B only. They were holding the pay scale of Rs. 1400- 2300/- equivalent pay scale of which in Vth pay revision is Rs. 4500-7000/- and the equivalent pay scale in VIth pay revision is Rs. 5200-20200/- with Grade Pay of Rs. 2800/-. The pay scale of Rs. 5000-8000/- is applicable to those employees who held the post of Rs. 5000-8000/- on or after 1.1.2006. The judgment of the Hon'ble High Court of Punjab & Harayana referred to by the applicants is not applicable to the case on hand as it deals with the orders of restructuring and not Pay Commission fixations. The dismissal of the SLP by the Apex Court in the case of an appeal by a non-speaking order as held by the three member Bench of this Court in Kunhayammed & Ors. Vs. State of Kerala - 2000 (6) SCC 359 will not be binding on other courts in cases of similar nature as contended by the applicants. Krishnaswamy's case is squarely applicable to the case on hand as it was dealing with the issue of OM dated 11.5.2001 by DOP&PW. It was held therein that the OMs dated 17.12.1998 and 11.5.2001 are complementary to each other and executive instructions in OM dated 11.5.2000 are integral part of OM dated 17.12.1998 which were issued to clarify the policy resolution of the Government dated 30.9.1997 which were adopted in the Railways too. Railway Board has already advised revision of PPOs at the earliest in cases where they have been issued other wise than in accordance with DOP&PW instructions.
6. I have heard the learned counsel for the parties and perused the records.
7. The pension of the applicants was fixed on the basis of the basic pay they were drawing in the pay scale of Rs. 1400-2300/- at the time of retirement. The applicants have no grievance about it. What is relevant for the fixation of pension is their pay scale at the time of retirement and not their post which may be upgraded or downgraded or merged or even abolished subsequently. The post of Electrical Chargeman-B from which the applicants retired was re-designated as Junior Engineer Grade-II with a higher entry level qualification of diploma in engineering and with a higher pay scale of Rs. 5000-8000/- with effect from 1.1.1996. As per Annexures R4, R5 & R6 the benefit of higher pay scale is available to employees who were in service as on 1.1.1996 or after and pensioners who had retired on or after 1.1.1996 after holding the post in the higher replacement scale. Pre- 1.1.1996 pensioners like the applicants were given revised pension based on the normal replacement scale of Rs. 4500-7000/- which is corresponding to the pay scale of Rs. 1400-2300/- at their retirement. The applicants by an inadvertent mistake were given revised pension based not on the correct replacement scale of Rs. 4500-7000/- but on a higher pay scale of Rs. 5000- 8000/- This incorrect fixation of pension is relied upon by the applicants for fixing their pension at Rs. 6750/- in the VIth pay revision taking into account the pay band of Rs. 9300-34800/- with grade pay of Rs. 4200/- as corresponding replacement scale of Rs. 5000-8000/- in which they were drawing pension wrongly. This in fact is asking for the perpetuation of a mistake, which is unreasonable and unjust. In the case of State of Uttar Pradesh Vs. Rajkumar Sharma - 2006 (3) SCC 330 the Apex Court held that if the State committed a mistake it cannot be forced to perpetuate the same mistake. For a decade or so the applicants derived the benefit of higher pension than their legal entitlement. Length of time in the matter of availment of ineligible or unintended benefit will not legitimize it. The claim of the applicants is based not on a vested right but on an egregious error on the part of the respondents. The respondents have every right to correct a mistake on their part.
8. The applicants contended that under Rule 90 of Railway Services (Pension) Rules, 1993 pension once fixed cannot be re-fixed to the disadvantage of the Railway servant unless such revision becomes necessary on account of a clerical error subsequently. The respondents contended that they have corrected only a clerical error. What is provided under Rule 90 refers to pension once sanctioned after final assessment. In the instant case the pension sanctioned to the applicants after final assessment soon after their retirement has not been revised to their disadvantage. The clerical error that occurred in the revision of pension order dated 22.12.2008 has been corrected vide Annexures A5(a), A6 & A7 dated 30.7.2009, 9.10.2009 and 21.08.2009 respectively and it cannot be said that this correction resulted in a revision to the disadvantage of the applicants in as much as it did not reduce their legal entitlement upon final assessment consequent to retirement. Their pension was fixed in accordance with the normal replacement scale of pay of Rs. 4500-7000/- corresponding to Rs. 1400-2300/- which the applicants held at their retirement. The respondents did not continue with the mistake they committed while fixing the pension on the basis of scale of pay of Rs. 5000-8000/- with effect from 1.1.1996 to which they were not eligible. In doing so there is no legally tenable disadvantage caused to the applicants.
9. The applicants further contended that as per paragraph 3(1) of the OM dated 1.9.2008 regarding revision of pension of pre-2006 pensioners the applicants are entitled to get revised consolidated pension as in the ready reckoner corresponding to the pension due on 31.12.2005. There is no merit in this contention. The fact of the matter is that on 31.12.2005, the applicants were drawing more pension than was due to them on account of an error. The pension due on 31.12.2005 as far as the applicants are concerned was the pension calculated on the basis of the scale of pay of Rs. 4500-7000/- which was the replacement scale of the scale of pay of Rs. 1400-2300/- which they held at the time of their retirement as per Annexures R5 and R6 which have statutory force.
10. In the case of D.S. Nakara Vs. Union of India - 1983 (1) SCC 305 the Hon'ble Apex Court held that a policy decision of the Government can be reviewed/altered/modified by an executive instruction. The Hon'ble Supreme Court held in the case of K.S. Krishnaswamy Vs. Union of India & Anr. - 2005 (3) MLJ 310 as under:-
"14. The clarification brought out in the OM dated 17.12.1998 and OM dated 11.5.2001 is clearly discernible. Whereas OM dated 17.12.1998 speaks of the minimum pay in the revised scale of pay w.e.f. 1.1.1996 of the post last held by the pensioner, the OM dated
11.5.2001 clarifies it as minimum of the corresponding scale as on 1.1.1996 of the scale of pay held by the pensioner at the time of superannuation/retirement. The clarification brought about in the OM dated 11.5.2001 is of the last post held by the pensioner as the last scale of pay held by the pensioner at the time of superannuation/retirement.
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18. It is common knowledge that an increase in the pay scale in any recommendation of a pay commission is a corresponding increase in the pay scale. In our view, therefore, executive instructions dated 11.5.2001 have been validly made keeping in view the recommendations of the Pay Commission accepted by the police resolution of the Government on 30.9.1997, clarified by executive instructions dated 17.12.1998. The executive instructions dated 11.5.2001 neither over-ride the policy resolution dated 30.9.1997 nor executive instructions dated 17.12.1998 clarifying the policy resolution dated 30.9.1997. The executive instructions dated 11.5.2001 were in the form of further clarifying the executive instructions dated 17.12.1998 and do not over-ride the same." Hence, the executive instructions of the Railway Board relied upon by the respondents are legally valid.
11. Further in OA No. 1288 of 2010 before the Madras Bench of this Tribunal, which is identical to the case on hand it was held as under:-
"9. It is admitted position that the applicant retired from service during the year 1979 in the pay scale Rs. 425-700/-. After implementation IV Pay Commission, the pension of the applicant was fixed in the corresponding pay scale of Rs. 1400-2300/- and the applicant has been receiving his pension. During the year 1993 the post of Senior Train Examiner got merged with the Junior Engineer Grade II in the pay scale of Rs. 5000-8000/-, during which time, the applicant was not in service and he never worked in the merged post carrying the pay scale of Rs. 5000-8000. However, erroneously, the respondents have fixed the pension of the applicant in the pay scale of Rs. 5000-8000/- instead of fixing his pension in the pay scale of Rs. 4500-7000/- which is the corresponding pay scale under the V Pay Commission report to the previous pay scale of Rs. 1400-2300/- and the 4th Pay Commission report. The applicant had been drawing pension only under this 4th Pay Commission pay scale. Therefore, granting pay fixation and pensionary benefits in a pay scale other than 4500-7000/- under 5th Pay Commission report is legally not sustainable.
10. Any merger or order of the Government is only prospective in nature and not retrospective. Learned counsel for the applicant draw my attention to the CCS (Revised) Pay Rules, 1997, wherein under the heading "XXV. Technical Supervisor & Workshop Staff" under which the pay scale of s. 1400-2300 has been revised to Rs. 5000- 8000 in respect of Chargeman/Chargeman 'B'/Chargeman (Technical) Grade II/Junior Engineer, E/Grade II (Workshop). The applicant herein had never been a staff of Workshop, he was holding the post of Senior Train Examiner. Therefore, this provision will be applicable in the case of applicant.
11. Recently this Bench has dealt with the similar issue in a few cases. In OA 437/2010 this Bench has held as follows:
"8. It is seen from the records that the pay scale of Rs. 1400- 2300/- has been revised to Rs. 4500-7000/- by the Vth Pay Commission and subsequently Rs. 5200-20200 with Grade Pay of Rs. 2800/- by the 6th Pay Commission. While granting the pay of the applicant on his superannuation the respondents have correctly fixed his pension and passed the order. However, while revising the pension of the applicant pursuant to implementation of Vth Pay Commission, the respondents have erroneously granted the pay scale of Rs. 5000-8000/- instead of Rs. 4500-7000 resulting in fixation of pension on the higher side than the entitled pension vide order dated 20.12.1999. This has continued for a long time and the applicant has continued to draw such erroneously fixed pension up to 28.12.2009. Pursuant to implementation of 6th Pay Commission recommendation, while revising pension of the applicant, the respondents have realized the mistake and rectified the same vide order dated 12.12.2009.
9. Therefore, I do not find any irregularity or illegality on the part of the respondents in rectifying the mistake committed by them. Mistake can always be rectified at any time. When it comes to the knowledge of the respondents and the applicant cannot challenge the same unless the applicant's right is adversely affected. The applicant has alleged in his application that his fundamental right is adversely affected. The respondents have granted him more pension than what he is legally entitled to, which has seen been rectified by the impugned order. At the cost of repetition, I would like to reiterate that at the time of retirement of the applicant, the Pension Payment Order has been correctly issued. It was also correctly issued while revising the pension payment order pursuant to implementation of a 6th Pay Commission report, which is being impugned in this OA. However, the mistake has taken place while implementing the 5th Pay Commission report and that has since been rectified.
10. It is also brought to my notice by the respondents that the revision of pension of the applicant vide the impugned order dated 12.12.20009 is in consonance with the ratio laid down by the Apex Court in the case of K.S. Krishnaswamy & Others Vs. Union of India & another reported in (2007) SCC (L&S) 491. This Tribunal has also taken the similar view in OA 164 and 164/2007. In the above context, I am of the opinion that since the impugned order dated 12.12.2009 has been passed only to grant the correct amount of pension to which the applicant is eligible and is also supported by the order of Apex Court and the order of this Tribunal cited above. I am not persuaded to interfere with the impugned order.
11. The applicant has also raised the question that he has not been issued with any show cause notice. However, in this case, such a notice is not a legal requirement since it is neither a punishment nor any order affecting the legal right of the applicant. Moreover issuance of show cause notice to the applicant will not be of any use, as the nature of mistake is not going to be changed or altered.
12. Having come to the above conclusion, I would like to mention here that pursuant to the impugned order dated
12.12.2009, the respondents are directed not to make any recovery from the pension of the applicant towards excess payment which has been paid to the applicant from 1.1.1996 to 28.12.2009. This is because, the mistake has been committed by the respondents and the same is not attributable to the applicant.
13. With the above observation, the OA is disposed of with no order as to costs."
12. In the facts of the case I am not persuaded to take a different view in the present OA as held earlier, I do not find any illegality or infirmity too interfere with the impugned order dated 27.7.2010.
13. For the foregoing reasons and discussions, and also placing reliance in the case of K.S. Krishnaswamy & Others Vs. Union of India & another reported in (2007) SCC (L&S) 491, I am of the opinion that the impugned order dated 27.7.2010 is a correct order, consequently the application fails. However, the respondents shall not recover any amount that has already been paid to the applicant by way of wrong fixation of pension, as the same is not attributable to the applicant. If any amount is already recovered from the applicant, the same shall be refunded to the applicant forthwith I make it clear that payment of pension as per the impugned order dated 27.7.2010 is only prospective
14. With the above observation, the OA is disposed of with no order as to costs."
12. In the light of the above settled legal position, the applicants have no legally sustainable claim in this Original Application.
13. The applicants relied on the dismissal of the Special Leave Application No. CC 4943 of 2012 dated 24.8.2011 in WP No. 9581 of 2011 of the High Court of Punjab & Haryana by the Apex Court. As the SLP did not go into the merits of the case the said decision is not binding on other Courts as held in the case of Kunhayammed & Ors. Vs. State of Kerala & Anr. - 2000 (6) SCC 359. The relevant part of the judgment in the aforesaid case is reproduced as under:-
"22. .....................when a special leave petition is dismissed, this Court does not comment on the correctness or otherwise of the order from which leave to appeal is sought. What the court mean is that it does not consider it to be a fit case for exercising its jurisdiction under Article 136 of the Constitution. That certainly could not be so when appeal is dismissed though by a non-speaking order. Here the doctrine of merger applies. In that case the Supreme Court upholds the decision of the High Court or of the Tribunal. This doctrine of merger does not apply in the case of dismissal of a special leave petition under Article 136.........."
14. Wrong fixation by other Railways is of no assistance to the applicants. The Railway Board has already advised revision of pension orders which are wrongly made.
15. The applicants are in their late seventies. They had not misrepresented or committed any fraud to get higher pension than their legal entitlement based on the replacement scale of pay of Rs. 4500-7000/- from 1.1.1996 onwards. No specific relief of non-recovery of the excess payment is sought in this O.A. However, it goes without saying that such recovery would cause immense hardship to them. Although the respondents are within their right to recover the excess pension paid, exercising judicial discretion taking into account the hardship the applicants would suffer and to avoid further litigation, it is ordered that no recovery of excess pension paid to the applicants from 1.1.1996 till 31.12.2005 be made.
16. The O.A. is dismissed with no order as to costs.
(K. GEORGE JOSEPH) ADMINISTRATIVE MEMBER "SA"