Central Administrative Tribunal - Delhi
Narendra Kumar Bajpai vs M/O Finance on 20 October, 2021
1 O.A. No.2363 of 2018
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.2363
2363 of 2018
Orders reserved on : 25.8.2021
Orders pronounced on ::20.10.2021
0.2021
(Through Video Conferencing)
Hon'ble Mr. R.N. Singh, Member (J)
Shri Narendra Kumar Bajpai
Member (Retd), Customs, Excise & Gold (Control),
Appellate Tribunal, New Delhi
Flat No.D-306,
No.D UNESCO Apartments,
Patparganj, 55 I.P. Estate,
Delhi-110092.
110092.
... Applicant
(through Advocate Shri S. Sunil)
Versus
us
1. Union of India,
Through its Secretary,
Department of Revenue,
Ministry of Finance,
North Block,
New Delhi-110001.
Delhi
2. The Chief Controller of Accounts,
Department of Revenue,
Ministry of Finance,
North Block,
New Delhi-110001.
Delhi
3. The Pay & Accounts Officer
Department of Revenue
R.F.A. Barracks,
Church Road Hutments,
Hutments New Delhi
Delhi-110 001.
4. Director (Pensioner's Grievances)
Department of Pensions & Pensioner's Welfare
Ministry of Personnel, Public Grievances & Pension,
Lok Nayak Bhawan, New Delhi - 110003.
... Respondents
(through Advocate Shri Rajeev Kumar
Kumar)
2 OA No-2363 of 2018
ORDER
In the present OA, filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has challenged the order dated 7.9.2017 (Annexure A-1) vide which the respondent No.3 has wrongly revised the pension of the applicant. The applicant has also challenged the order dated 24.11.2017 (Annexure A-2) whereby the respondent no.2 has attempted to justify the reasons for revision/reduction of the applicant's pension.
2. The applicant has prayed for the following reliefs in the present OA:-
"(i) to quash and set aside the revised pension fixation order dated 07.09.2017 and direct the Respondents to re-fix the pension treating the applicant as holding pay scale of Rs.7,300-
8,000/- instead of Rs.7,300-7600/-,
(ii) to quash and set aside the communication dated 24.11.2017,
(iii) to grant costs of this application to the applicant herein, and
(iv) to pass such other order or orders as may be deemed fit and proper in the interest of justice."
3. The brief facts leading to the present OA and as contended by the applicant are that the applicant entered into the Government service by joining as an Appraiser on 3 OA No-2363 of 2018 1.7.1958. Thereafter, he joined Class-I service as Probationary Assistant Collector of Customs & Central Excise on 24.5.1960. Before joining as Member (Technical) in the Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as 'CEGAT'), New Delhi [presently known as Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as 'CESTAT')] on 2.11.1990 in the pre-revised pay scale of Rs.7300-100-7600/-, the applicant had earned two increments and had reached the stage of Rs.7500/-. The applicant had reached the final stage of Rs.7600/- on 14.9.1991 and thereafter he superannuated as Member (Technical) on 7.3.1993. In view of his last pay drawn, i.e., Rs.7600/- per month, his pension was fixed by the respondents at Rs.3800/- vide Pension Payment Order (PPO) (Annexure A/3). The Vth Central Pay Commission (CPC) while dealing with the pay scale of Members/Vice President/President of CEGAT in para 66.211 of its report recommended the post of Members and Vice President of CEGAT to be placed in the replacement scales corresponding to the scales of pay of Rs.7300-8000/- and Rs.7600-8000/- respectively (Annexure A/4). After 5th CPC, the Government initially decided that w.e.f. 1.1.1996, 4 OA No-2363 of 2018 the pension of all pensioners irrespective of their date of retirement shall not less than 50% of the minimum pay in the revised scale of pay of the post last held by the pensioner and on first revision, the applicant's pension was fixed by the respondents at Rs.9398/-. The Department of Personnel and Training (DoP&T) vide OM dated 17.12.1998 (Annexure A-5) ordered as under:-
"Retirement Benefits Revision of Pension F.No. 45/10/98-P&PW(A) Government of India Ministry of Personnel, Public Grievances & Pensions Department of Pension & Pensioners' Welfare Dated the 17th December, 1998 Subject : Implementation of Government's decisions on the recommendations of the Fifth Central Pay Commission relating to retirement benefits.
1. The undersigned is directed to say that in the wake of a large number of representations received by the Government from the Pensioners' Associations as well as individuals, the Government has re- considered its decision on the recommendations of the Vth Central Pay Commission regarding revision of pension/ family pension as contained in Paras 137.14 and 134.30 of the report. The President is now pleased to decide that w.e.f. 1. 1. 1996, pension of all pensioners irrespective of their date of retirement shall not be less than 50% of the minimum pay in the revised scale of pay introduced w.e.f. 1. 1. 1996 of the post last held by the pensioner. However, the existing provisions in the rules governing qualifying service and minimum pension shall continue to be operative. Similarly w.e.f. 1. 1. 1996 family pension shall not be less than 30% of the minimum pay in the revised scale introduced w.e.f. 1. 1. 1996 of the post last held by the pensioner/ deceased Government servant. Accordingly, so far as persons governed by CCS (Pension) Rules, 1972 are concerned, orders contained in the following Office
5 OA No-2363 of 2018 Memoranda of this Department as amended from time to time shall be treated as modified as indicated below.
A. O.M. No. 45/86/97-P&PW(A) -Pt.I dated October 27,1997.
2. The first sentence of paragraph 5 of the Office Memorandum relating to "Pension" may be substituted by the following:
"Pension shall continue to be calculated at 50% of the average emoluments in all cases and shall be subject to a minimum of Rs. 1,275 per month and a maximum of upto 50% of the highest pay applicable in the Central Government, which is Rs. 30,000 per month since 1st January, 1996, but the full pension in no case shall be less than 50% of the minimum of the revised scale of pay introduced with effect from 1st January, 1996 for the post last held by the employee at the time of his retirement. However such pension will be suitably reduced pro-rata, where the pensioner has less than the maximum required service for full pension as per the rule (Rule 49 of CCS(Pension) Rules 1972) applicable to the pensioner as on the date of his / her superannuation / retirement and in no case it will be less than Rs.1275/- p.m."
B. O.M. No. 45/86/97 - P&PW(A) Pt. II dated October, 27, 1997
3. The following may be inserted after the first sentence, "The amount so arrived at shall be...............with effect from 1. 1. 1996," in the sub- para of paragraph 4.1:
"However, in cases where the pension consolidated is treated as the final full pension, it shall not be less than 50% of the minimum of the revised scale of pay introduced with effect from 1st January 1996 for the post last held by the pensioner at the time of his retirement. Such pension will be suitably reduced pro-rata, where the pensioner has less than the maximum required service for full pension as per the rule (Rule 49 of CCS(Pension) Rules 1972) applicable to the pensioner as on the date of his / her superannuation / retirement and in no case it will be less than Rs.1275/- p.m. Similarly, in cases where the family pension so consolidated is treated as final, it shall not be less than 30 per cent of the minimum of the revised scale of pay 6 OA No-2363 of 2018 introduced with effect from 1st January 1996 for the post last held by the concerned pensioner/ deceased government servant."
C. O.M. No. 45/86/97-Pt. III dated February 10, 1998
4.
a) The last sentence of paragraph 2 may be substituted by the following:
"The pension so calculated shall be consolidated as on 1st January 1996 in accordance with the provisions contained in paragraph 4.1 of this Department's O.M.No. 45/86/97-P&PW(A) - Pt. II dated 27th October 1997. Such consolidated full pension shall not, however, be less than 50 per cent of the minimum of the revised scale of pay introduced with effect from 1st January 1996 for the post last held by the concerned pensioner. However such pension will be suitably reduced pro- rata, where the pensioner has less than the maximum required service for full pension as per the rule (Rule 49 of CCS(Pension) Rules 1972) applicable to the pensioner as on the date of his / her superannuation / retirement and in no case it will be less than Rs.1275/- p.m."
This pension shall be treated as the basic pension for the purpose of future grant of Dearness Relief on pension.
b) The second sentence of paragraph 3 may be substituted by the following:
"This pension shall be consolidated as on 1st January 1996 in accordance with the provisions contained in paragraph 4.1 of this Department's O.M. No. 45/86/97- P&PW(A) - Pt. II dated 27th October 1997. Such consolidated family pension shall not, however, be less than 30 per cent of the minimum of the revised scale of pay introduced with effect from 1st January 1996 for the post last held by the concerned pensioner/ deceased government servant."
c) The following clause may be inserted after the fifth sentence in paragraph 4:
"The basic family pension so calculated shall not be less than 30 per cent of the minimum of the revised 7 OA No-2363 of 2018 scale of pay introduced with effect from 1st January 1996 for the post last held by the concerned pensioner/ deceased government servant."
D. O.M. No. 45/86/97 - P&PW (A)-Pt. IV dated May 8, 1998
d) The following may be added after the last sentence in paragraph 2(iii):
o "The basic family pension so calculated shall not be less than 30 per cent of the minimum of the revised scale of pay introduced with effect from 1st January 1996 for the post last held by the concerned pensioner/ deceased government servant."
e) The grant of enhanced family pension will be regulated in accordance with the provisions contained in this Department's O.M. No. 45/8/98-
P&PW(E) dated 15/12/1998.
f) It shall be the responsibility of the Head of the Department of the Ministry, Department, Office, etc. from which the government servant had retired or where he was working prior to his demise to revise the pension/family pension of all pensioners/ family pensioners with effect from 1st January 1996 in accordance with the modified provisions mentioned above and to issue revised Pension Payment Order (PPOs). Action to revise pension/ family pension in terms of these orders shall be initiated suo moto by the concerned Heads of Departments in cases where the necessary applications have already been received from the pensioners/ family pensioners in pursuance of the earlier orders issued by this Department regardless of the fact whether their cases have already been finalised or are in the process of finalisation. Those pensioners/ family pensioners who have not so far submitted the necessary applications to facilitate the revision of their pension/ family pension and are desirous of availing the benefits under these orders are required to submit applications for revision of their pension/ family pension in the prescribed form (in duplicate) as in the annexure, to their Pension Sanctioning Authorities latest by 31st March 1999. In the case of the Defence Civilian Employees, however, the procedure prescribed in this regard by the Ministry of Defence shall be followed. Concerted efforts should be made by all 8 OA No-2363 of 2018 the authorities concerned to ensure that the revised PPO's are issued, wherever necessary, with the utmost expedition.
g) It is once again reiterated that the Pension Sanctioning Authority in no case, will ask the pensioner/ family pensioner to surrender his/ her original Pension Payment Order (PPO) for issuing revised authority. It may also be ensured that a copy of the revised PPO should be invariably endorsed to the pensioner/ family pensioner.
h) Separate orders will be issued by the Ministry of Defence, Ministry of Railways and the AIS Division of the Department of Personnel & Training in respect of the Armed Forces Personnel, Railway Employees and Members of the All India Services respectively.
i) These orders issue with the approval of the Ministry of Finance, Department of Expenditure, vide their Dy. No. S-46/E.V/98 dated 8th December, 1998.
j) In their applicability to the personnel of the Indian Audit and Accounts Department, these orders issue in consultation with the Comptroller and Auditor General of India.
k) Ministry of Agriculture, etc. are requested to urgently bring the contents of these orders to the notice of the Heads of Departments, Controllers of Accounts, Pay and Accounts Officers, Attached and Subordinate Offices, etc. under their administrative control. All Pension Disbursing Authorities are also advised to display these orders prominently on their notice boards for the information and guidance of the pensioners/ family pensioners.
(Ganga Murthy) Director (PP)"
(Emphasis supplied)
4. Further vide order dated 17.3.1999 (Annexure A-6), Department of Revenue conveyed the sanction of the President for placing the Members of the CEGAT in the revised pay scale of Rs.22400-600-26000/- with effect
9 OA No-2363 of 2018 from 1.1.1996. Applying the revised pay scale as recommended by the Vth CPC, the replacement scale of Members of CEGAT was placed in the pay scale of Rs.22400-600-26000 w.e.f. 1.1.1996 in view of OM dated 17.12.1998. The applicant's pension was revised in terms of OM dated 17.12.1998 vide order dated 23.4.1999 (Annexure A-7). The applicant's pension was fixed at Rs.11,200/- and he continuously received the revised pension for 10 years, i.e., w.e.f. 1.1.1996 to 31.12.2005. Office Memorandum dated 14.10.2008 (Annexure A-8) along with a concordance table for revised pension based on revised Pay Bands and Grade Pays for posts carrying present scales in Group 'A', 'B', 'C' & 'D' as per the VIth CPC, was issued by the Department of Pension & Pensions' Welfare regarding implementation of Government's decision on the recommendations of the VIth CPC Revision of Pension of pre-2006 pensioners/family pensioners. At serial No.33 of the said Annexure I thereto the OM dated 14.10.2008, details of pay scale of Rs.7300-200-7500-250-8000 w.e.f. 01.01.1986 provides the corresponding VIth CPC Pay Band/Pay Scale, i.e., HAG+ SCALE Rs.75500-80000 and 50% of the minimum pay has been provided to be 10 OA No-2363 of 2018 Rs.37750. The applicant received a communication dated 12.11.2008 (Annexure A-9) from the office of CESTAT from which the applicant had superannuated in respect of revision of his pension along with a calculation sheet and the same confirmed that the revised pension of the applicant is Rs.37750/-. The Assistant Registrar of CESTAT wrote a letter dated 21.1.2009 (Annexure A-10) to the office of respondent No.2 and with the said communication, the service book of the applicant was sent and it had also been clarified that as per the order dated 17.3.1999 of Ministry of Finance, Department of Revenue, the pay scale of Members, CESTAT had been revised to Rs.22400-600-26000/- w.e.f. 1.1.1996 and as per the recommendations of VIth CPC, the corresponding pay scale of Members is HAG+ Rs.75500-80000 and the pension of the pre-2006 pensions shall be 50% of the minimum of the revised pay scale and entries regarding the revised pay scales w.e.f. 1.1.1996 and 1.1.2006 have been made in the enclosed service book. It has also been clarified that old pay scale and new pay scale has already been indicated in S.No.5 & 6 of the enclosed statement. The applicant received a communication dated 30.1.2009 (Annexure A-11) wherein it has been stated that in terms 11 OA No-2363 of 2018 of Department of Pension & Pensioners' Welfare OMs dated 1.9.2008 and 3.10.2008, the CESTAT has forwarded the order relating to revised pension/family pension to PAO. However, the same has been returned with remarks that the revision of pension cases of Pre-2006 pensioners has to be revised by their concerned Bank as per the DoP&T OM dated 14.10.2008 and the applicant was requested to contact the concerned Bank for revision of pension/family pension. The applicant has written a letter dated 21.1.2009 (Annexure A-12) to the Assistant General Manager, Bank of India, Khan Market, New Delhi, i.e., the concerned Bank regarding revision of his pension enclosing therewith a copy of the letter dated 12.11.2008 from the Assistant Registrar, CESTAT to the respondent no.2, i.e., Office of the Chief Controller of Accounts, Department of Revenue, New Delhi revising his pension on the basis of the recommendations of the VIth CPC. The disbursing Bank was required to make computation of pension in Annexure III and on the basis of information apparently furnished by the Bank to the PAO (Revenue), New Delhi. Central Pension Accounting Office, New Delhi issued a letter dated 2.8.2013 (Annexure A-13) revising the pension of the applicant. The respondent no.2 was the 12 OA No-2363 of 2018 similar authority for the applicant on 14.9.2014 (Annexure A-14) which was addressed to the Manager of the concerned Bank forwarding the details written in the authority of the PAO and a copy of which was sent to the applicant. The applicant has asserted that in view of these two communications from the PAO and Central Pension Accounting Office, there cannot be any doubt of whatsoever nature that the revision of pension initially proposed by the CESTAT and subsequently made by the Bank of India, was fully confirmed by both these authorities. It is further asserted by the applicant that he had been drawing the pension of Rs.11,200/- from 1.1.1996 to 31.12.2005 and the amount of Rs.37750/- from 1.1.2006 to 31.12.015 without any manner of doubt of whatsoever nature expressed by any authority concerned about the revision of the applicant's pension after Vth and VIth CPCs. The applicant has further contended that till 31.12.2015, there has been no cause for him to worry in respect of pension fixed and paid by the respondents. However, an Office Memorandum was issued by the respondent N0.3 on 4.8.2016 (Annexure A/15) with regard to the implementation of the Government's decisions on the recommendations of the 13 OA No-2363 of 2018 VIIth CPC - Revision of Pension of pre-2016 pensions/family pensions. It is contended by the applicant that in para 4.1of the said OM dated 4.8.2016, it is stated that the existing pensions, who have retired before 1.1.2016, the revised pension/family pension with effect from 01.01.2016 shall be determined by multiplying the pension/family pension, as had been fixed at the time of implementation of VIth CPC's recommendations, by 2.57. The amount of revised pension/family pension so arrived at shall be rounded off to next higher rupees. Accordingly, the Bank of India, i.e., the concerned Bank, revised the applicant's pension to Rs.97,018/- by multiplying his existing pension of Rs.37,750/- by the factor of 2.57 w.e.f. 1.1.2016 and paid the arrears upto the month of August 2016. On 1.8.2017 (Annexure A17), the Registrar of CESTAT issued an order revising the pension of the applicant as per Table 54 of pay matrix as per the Central Civil Services (Revised Pay) Rules, 2016 and notional pay of Rs.2,05,400/- in the pay scale of Rs.205400-224400 was fixed w.e.f. 1.1.2016 as per Table 54. The applicant's pension, therefore, was fixed at Rs.1,02,700/-, i.e., 50% of the minimum of the said pay scale, i.e., Rs.205400- 224400. The applicant's pay was fixed on notional basis.
14 OA No-2363 of 2018 The applicant's pay fixation on notional basis and revised w.e.f. 1.1.2016 and the pay scale is shown in the table 54 and the same reads as under:-
"Table No.54 Scale of pay/Pay in the Pay Band & Grade Pay at the time of retirement From 01.01.1986 to 7300-200-7500-250-8000 31.12.1995 From 01.01.1996 to 22400-600-26000 31.12.2005 From 01.01.2006 to 75500-3%-80000 31.12.2015 Corresponding level Level-16 (205400-224400) w.e.f. 1.1.2016 Revised Basic Pay Basic Pay Basic Pay Pay range for pensioners Notional Pension/ Revised from from from retired during 1.1.2006 Pay as on Enhanced Family 01.01.1996 01.01.1996 01.01.20 to 31.12.2015 01.01.2006 Family pension to to 06 to pension w.e.f.
31.12.1995 31.12.2005 31.12.20 (if 1.1.2016
15 applicabl
e) w.e.f.
1.1.2006
Minimum Minimum
7300 22400 75500 - 79920 205400 102700 61620
7500 22400 75500 - 79920 205400 102700 61620
7750 22400 75500 - 79920 205400 102700 61620
8000 23000 75500 - 79920 205400 102700 61620
23600 77765 - 79920 205400 102700 61620
24200 77765 - 79920 205400 102700 61620
24800 80000 79930 80000 211600 105800 63480
25400 80000 79930 80000 211600 105800 63480
26000 80000 79930 80000 211600 105800 63480
5. However, the respondent No.3 did not accept the aforesaid revision and passed the order dated 13.9.2017 (Annexure A-1) by bringing the applicant in the table 53 and assigning the pay scale of Rs.7300-100-7600 completely disregarding the scale of pay, according to which, the pension was finally disbursed to the applicant 15 OA No-2363 of 2018 after Vth and VIth CPCs and OM dated 17.12.1998 as referred to hereinabove, the benefits which have been given to the applicant for 20 years, i.e., w.e.f. 1.1.1996 to 31.12.2015. The applicant submitted his representation against the order dated 13.9.2017 to the respondent No.2 and vide impugned communication dated 24.11.2017, it has been communicated to him that scale of Rs.22400- 600-26000 was not extendable to the applicant as the upgradation was made effective w.e.f. 1.1.1996, i.e., after applicant's retirement w.e.f. 7.3.1993. In the aforesaid background, the applicant has challenged the communications dated 7.9.2017 (Annexure A-1) and dated 24.11.2017 (Annexure A-2) and has prayed for the reliefs as quoted in para 2 above.
6. Shri S. Sunil, learned counsel for the applicant, has argued that the action of the respondents vide the impugned communications is in violation of provisions of Rule 70 of the CCS (Pension) Rules, 1972 (hereinafter referred to as 'Pension Rules'). He has argued that in view of provisions of Rule 70 (1) of the Pension Rules, the pension can be revised to the disadvantage of the retired Government servant only on account of detection of 16 OA No-2363 of 2018 clerical error and in the present case, it has not been the case of the respondents that the pension of the applicant was revised twice during 20 years prior to the impugned order and so paid all along for 20 years was a result of any clerical error. He has further argued that the recommendations of Vth CPC was very clear that the post of Member of CESTAT should be placed in the replacement scale of Rs.7300-8000, which has further been recommended by the VIth CPC to Rs.22400-600-26000/- and by OM dated 17.12.1998, the revised scale was rightly given to the applicant w.e.f. 1.1.1996 and his pension was rightly fixed on the basis of 50% of the minimum pay in the revised scale of pay of Rs. Rs.22400-600-26000 by the PAO. Further that the subsequent revision of applicant's pension was done in accordance with the recommendations of VIth CPC in the pay scale of Rs.75500-80000 and 50% of the minimum pay has been shown to be Rs.37750 and, therefore, even after VIIth CPC notional fixation of pay of the applicant should be on the basis of pay scale of Rs.205400-224400 fixed w.e.f. 1.1.2016 and 50% of the minimum of the said scale is Rs.1,02,700/-. The applicant has also worked out the details of fixation of notional pay keeping in view the 17 OA No-2363 of 2018 recommendations of CPCs and in view of the formula for revision of pay [Annexure A-22 (colly)]. He has further argued that OM dated 12.5.2017 has wrongly been interpreted and applied while fixing the notional pay and pension of the applicant. He has also argued that at all stages, the applicant's basic pay was treated with replacement scale of Rs. 22400-600-26000/- and, therefore, there can be no justification whatsoever reducing the pension of the applicant after 20 years and the same is not permissible in view of provisions of Rule 70 of the Pension Rules. He has further argued that the applicant's pension should be as per the aforesaid table 54 and not as per table 53. He has further added that while revising the pay as per table 54, the notional pay has to be fixed applying the OMs dated 12.5.2017 (Annexure A-16) and 6.7.2017 (Annexure A-17).
7. In response to the notice, the respondents have filed counter reply. In the said counter reply, the respondents have not disputed the factual matrix of applicant's services and/or his retirement and fixation of his pension twice after the retirement. However, they have disputed the correctness of his pension twice. It has been stated by 18 OA No-2363 of 2018 the respondents that the then Registrar has wrongly fixed the pension of the applicant under Concordance Table No.54 and as per the respondents, Table No.53 of OM dated 06.07.2017 is applicable for fixation of pension of the applicant inasmuch as the applicant retired on 07.03.1993 in the pay scale of Rs.7300-7600 and Table No.54 is applicable to those who retired in the scale of Rs.7300-8000 from Vth CPC and, thus, the applicant has been drawing excess pension over and above his entitlement to all these years. It is asserted by the respondents that the contention of the applicant revolves around only on OM dated 17.12.1988 which provides that pension of all pensioners irrespective of the date of retirement shall not be less than 50% of the minimum in the revised scale of pay introduced w.e.f. 01.01.1996 of the post last held by the pensioner. It is contended by the respondents that the Government had issued a clarificatory OM dated 11.05.2001 and it was clarified therein that "the second sentence of OM dated 17.12.1998, i.e. "pension of all pensioners irrespective of their date of retirement shall not be less than 50% of the minimum pay in the revised scale of pay w.e.f. 1.1.96 of the post last held by the pensioner" shall mean that 19 OA No-2363 of 2018 pension of all pensioners irrespective of their date of retirement shall not be less than 50% of the minimum of the corresponding scale as on 1.1.96, of the scale of pay held by the pensioner at the time of superannuation/ retirement". It is further asserted that OM dated 11.05.2001 as well as the judgment of the Hon'ble Supreme Court in the case of K.S. Krishnaswamy & Ors. vs. Union of India & Anr, reported in (2006) 13 SCC 215 is, therefore, required to be considered. The respondents have also asserted that in K.S. Krishnaswamy (supra), it was held that clarification brought out in the OMs dated 17.12.1998 and 11.05.2001 are clearly discernable whereas OM dated 17.12.1998 speaks of the minimum in the revised scale of pay w.e.f. 01.01.1996 of the post last held by the pensioner. OM dated 11.05.2001 clarifies that it is the minimum of the corresponding scale as on January, 1996 of the scale of pay held by the pensioner at the time of superannuation/retirement. It is also asserted by the respondents in the counter reply that the applicant had retired on attaining the age of superannuation on 07.03.1993, i.e., prior to the recommendations and implementation of the Vth CPC and he had superannuated in the pay scale of Rs.7300-7600, 20 OA No-2363 of 2018 therefore, he is not entitled to the benefit of upgradation of pay scale as it happened subsequent to his retirement. It is also contended by them that in Annexure A-9 the calculation was done erroneously by the then Registrar to this effect and the same cannot be claimed as a matter of right by the applicant. It is also contended by the respondents that on earlier occasions the pension of the applicant was not revised keeping in view the OM dated 11.05.2001 (Annexure R-1) and 11.02.2009 (Annexure R-
2).
8. The applicant has filed his reply in response to the counter reply filed on behalf of the respondents. Therein in the said reply, the applicant has taken a preliminary objection that the applicant has impleaded in the OA the respondents having independent functions of the Union and no affidavit has been filed by any of the said respondents. In view of Rule 12 of CAT (Procedure) Rules, 1987 which provides that if respondent(s) intended to contest the Application shall file, in triplicate, the reply to the Application and the documents relied upon. It has also been pleaded that in absence of any authorization by the respondents to the Registrar, who had filed the counter 21 OA No-2363 of 2018 and no document showing his access to all relevant records of the impleaded respondents, the counter reply under reference cannot be treated to be the counter reply on behalf of the respondents impleaded in the OA. The applicant has reiterated the submissions made in the OA. It is also contended that the judgement of the Hon'ble Supreme Court in the case of K.S. Krishnaswamy (supra) has not been rightly read and understood by the deponent of the counter affidavit. In the facts and circumstances, however, I treat the counter reply to be the same on behalf of all the respondents in this OA.
9. I have heard the learned counsels for the parties and have also perused the pleadings on record.
10. Sh. Sunil, learned counsel for the applicant has reiterated that the impugned order/action of the respondent nos. 2 & 3 revising the pension of the applicant is in violation of Rule 70 of CCS (Pension) Rules, 1972. The Vth CPC's recommendation was very clear that the post of Member should be placed in the replacement scale of Rs.7300-8000, which was recommended to Rs.22400-600-26000 and by virtue of OM dated 17.12.1998, the replacement scale was rightly allowed to 22 OA No-2363 of 2018 the applicant w.e.f. 01.01.1996 and his pay had correctly been fixed at 50% of minimum of scale of pay of Rs.22400/- by the competent authority and subsequent revision of the applicant's pension after VIth CPC was rightly done in the pay scale of Rs.75500-80000 and, therefore, even after VIIth CPC notional fixation of pay of the applicant should be on the basis of scale of Rs.2,05,400-2,44,000. It has further been argued by the learned counsel of the applicant that the applicant's pension is required to be as per Concordance Table No.54 and not as per Table No.53. Learned counsel for the applicant has further argued that as per the understanding of all the authorities concerned that the revision of applicant's pension after VIth CPC was not to deny him the benefit accorded to him in view of the OM dated 17.12.1998. He further added that OM dated 11.05.2001 does not take away the benefit given to the pensioners in terms of OM dated 17.12.1998. The OM dated 11.05.2001 does not provide that the same has to be read retrospectively and the Hon'ble Apex Court in the case of K.S. Krishnaswamy (supra) had clearly held that executive instructions dated 11.05.2001 neither overrule the policy resolution dated 30.09.1997 nor executive 23 OA No-2363 of 2018 instructions dated 17.12.1998 and the Hon'ble Apex Court in the said judgement has nowhere held that the benefit extendable by virtue of OM dated 17.12.1998 can be taken back in view of later executive instructions dated 11.05.2001.
11. Sh. Rajeev Kumar, learned counsel for the respondents has opposed the OA and in support such proposition he has read and referred to a few paragraphs of the aforesaid counter reply filed on behalf of the respondents, which has already been precisely recorded hereinabove. He has emphasized that in view of the provision of OM dated 11.05.2001 and judgment of the Hon'ble Apex Court in K.S. Krishnaswamy (supra), the applicant is not entitled for the relief sought for by him in the present OA. He has further added that the respondents are always entitled to correct their mistakes and the applicant is having no enforceable right to claim what has illegally and/or erroneously been accorded to him.
12. From the aforesaid it transpires that the basic reason for passing the impugned order is the provision of OM dated 11.05.2001 and OM dated 11.02.2009 coupled with 24 OA No-2363 of 2018 judgment of the Hon'ble Apex Court in K.S. Krishnaswamy (supra). The Office Memorandum dated 11.5.2001 along with executive instructions dated 30.9.1997 as well as OM dated 17.12.1998 have been considered by the Hon'ble Apex Court in the case of K.S. Krishnaswamy (supra) and, therefore, I am of the view that the same is not required any further consideration and interpretation by me. Paragraph 17 of K.S. Krishnaswamy (supra) reads as under:-
"17....... We are unable to accept this contention. As noticed above, the recommendations of the Fifth Pay Commission were accepted to the extent of policy resolution dated 30-9-1997. The aforesaid Policy Resolution was further clarified by issuing instructions in OM dated 17-12-1998, which were clarified by another Executive Instructions in OM dated 11-5-2001. It is well-settled principle of law that recommendations of the Pay Commission are subject to the acceptance/rejection with modifications of the appropriate Government. It is also well-settled principle of law that a policy decision of the Government can be reviewed/altered/modified by Executive Instructions. It is in these circumstances that a policy decision cannot be challenged on the ground of estoppel. In the present case, the recommendations of the Fifth Pay Commission were accepted by a Policy Resolution dated 30-9-1997 that the ceiling on the amount of pension will be 50% of the highest pay in the Government. The pension of all pre-1-1-96 retirees including pre-86 retirees shall be consolidated as on 1-1-1996, but the consolidated pension shall not be brought on to the level of 50% of the minimum of the revised pay of the post held by the pensioner at the time of retirement. The subsequent OM dated 17-12- 1998 clarified the Policy Resolution dated 30-9-1997 by executive instructions in OM dated 17-12-1998 25 OA No-2363 of 2018 and further clarified in the form of O.M. dated 11-5- 2001 clarifying the contents of Policy Resolution of the Government dated 30-9-1997. They are both complementary to each other. Both clarify the Government Policy Resolution dated 30-9-1997. The appellants are not aggrieved by the executive instructions in OM 17-12-1998. In our view, therefore, the contention of the appellant that the OM dated 11-5-2001 overrides the original OM dated 17.12.1998, thereby creates two classes of pensioners is absolutely ill-founded and untenable."
13. In para 18 of the aforesaid judgment, the Hon'ble Apex Court ruled that the executive instruction dated 11.5.2001were in the form of further clarifying executive instructions dated 17.12.1998 and do not override the same. Further para 27 of the said judgment reads as under:-
"27. For the reasons aforestated, the view taken by the Madras High Court that the clarificatory Executive Instructions in OM dated 11-5-2001 are an integral part of the OM dated 17-12-1998 clarifying the policy resolution of the Government dated 30-9- 1997 and do not over-ride the original OM dated 17- 12-1998 is correct law and it is, accordingly, affirmed. The view taken by the Delhi High Court that OM dated 11-5-2001 over-rides the original OM dated 17-12-1998 and creates two classes of pensioners does not lay down the correct law and is, hereby, set aside."
14. It is not in dispute that the pension of the applicant was fixed by the competent authority taking into consideration the provisions of the OM dated 17.12.1998.
26 OA No-2363 of 2018 The Hon'ble Apex Court in K.S. Krishnaswamy (supra) has ruled that OM dated 11.5.2001 does not override the OM dated 17.12.1998. Furthermore, para 1 of the said OM dated 17.12.1998 clearly provides for fixation of pension of all pensioners irrespective of their date of retirement to be not less than 50% of the minimum pay in the revised scale of pay introduced w.e.f. 1.1.1996 of the post last held by the pensioner. Here it is worth to note that this OM requires to take into consideration the post last held by the pensioner. Further so far Office Memorandum dated 11.2.2009 is concerned, the clarification given in paras 3, 4 and 5 of the said OM also do not provide that the benefits already accorded to the employees/pre-2006 pensioners shall be taken away from them nor the same was taken away from the applicant. Thus, I am of the considered view that revision of the pension of the applicant revised on the basis of recommendations of Vth CPC and acceptance thereof by the Government and second time in view of recommendations of VIth CPC and acceptance thereof by the Government and keeping in view OM dated 17.12.1998, cannot be construed as a result of clerical error/mistake. More so, when the applicant has continued to receive such pension all along for 20 years of 27 OA No-2363 of 2018 his retirement and also in view of the judgement of the Hon'ble Apex Court in the K.S. Krishnaswamy (supra), wherein the Hon'ble Apex Court has ruled that OM dated 11.5.2001 does not override the provisions of OM dated 17.12.1998.
15. Now the issue arises as to whether if the pension fixed by the competent authority of the respondents twice, i.e., after Vth CPC and VIth CPC is not a result of clerical error or mistake, the pension of the applicant can be reduced or fixed in the manner, which may put the applicant at disadvantage or by which the applicant's pension may become lesser than what would have been on the basis of earlier fixation. To have answer to this issue, we may refer to the provisions of Rule 70 of the CCS (Pension) Rules, 1972 which reads as under:-
70. Revision of pension after authorization (1) Subject to the provisions of Rules 8 and 9 pension once authorized after final assessment shall not be revised to the disadvantage of the Government servant, unless such revision becomes necessary on account of detection of a clerical error subsequently :
Provided that no revision of pension to the disadvantage of the pensioner shall be ordered by the Head of Office without the concurrence of the Department of Personnel and Administrative Reforms if the clerical error is detected after a period of two years from the date of authorization of pension.
28 OA No-2363 of 2018 [(1-A) The question whether the revision has become necessary on account of a clerical error or not shall be decided by the administrative Ministry or Department.] (2) For the purpose of sub-rule (1), the retired Government servant concerned shall be served with a notice by the Head of Office requiring him to refund the excess payment of pension within a period of two months from the date of receipt of notice by him.
(3) In case the Government servant fails to comply with the notice, the Head of Office shall, by order in writing, direct that such excess payment, shall be adjusted in instalments by short payments of pension in future, in one or more instalments, as the Head of Office may direct."
The aforesaid provisions of Rule 70 clearly provide that in the aforesaid facts and circumstances, the applicant's pension cannot be revised to his disadvantage.
16. In view of the aforesaid, I am of the considered view that OA has merit and the same deserves to be allowed. Accordingly, the same is partly allowed with the following orders/directions:-
(i) Pension fixation order dated 7.9.2017 (Annexure A/1) and communication dated 24.11.2017 (Annexure A/2) are set aside;
(ii) The respondents are directed to revise the pension of the applicant treating him holding pay scale of 29 OA No-2363 of 2018 Rs.7300-8000/- instead of Rs.7300-7600 and to pass an order of revision of pension accordingly;
(iii) The respondents are directed to pay arrears of pension, if any, in view of such order for revision of pension of the applicant;
(i) The aforesaid exercise shall be completed by the respondents as expeditiously as possible and in any case within six weeks of receipt of a copy of this Order.
17. However, in the facts and circumstances of the case, there shall be no order as to cost.
(R.N. Singh) Member (J) /ravi/