Central Administrative Tribunal - Delhi
Vedwati Aggarwal vs North Delhi Municipal Corporation on 9 November, 2023
1
O.A. No.1967/2019
Item No.26 (Court no.5)
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.1967/2019
Reserved on 31.10.2023
Pronounced on 09.11.2023
Hon'ble Dr. Chhabilendra Roul, Member (A)
VEDWATI AGGARWAL (Senior citizen) (Family pensioner
of Ex. Medical officer) W/o Late Dr. N.K. Aggarwal C-41/Z-2,
Dilshad Garden, Delhi-110095
........Applicant
(By Advocate : Mr. Pankaj)
Versus
1. North Delhi Municipal Corporation,
(Through its Commissioner)
CENTER, JLN MARG, New Delhi-110002
2. The Secretary,
Dept. of pension & Pensioners Welfare Min. of P, PG &
Pensions, Lok Nayak Bhawan, New Delhi-110003
...Respondents
(By Advocate : Mr. Manjeet Singh Reen)
2
O.A. No.1967/2019
Item No.26 (Court no.5)
ORDER
1. The present application has been filed against the impugned orders dated 20.03.2017, 27.07.2017, and 02.11.2017, by which the respondents re-fixed the family pension of the present applicant with effect from 01.01.2006, following the recommendations of the 6th CPC.
2. The factual matrix of the present case is as follows:-
2.1. The applicant's husband was appointed as a Medical Officer in Homeopathy at the Municipal Corporation of Delhi prior to 1980.
Unfortunately, Dr. Sh. N.K. Agarwal, the husband of the applicant, passed away while in service in the year 1980. The present applicant was granted a family pension in accordance with the existing policy at the time.
2.2. Subsequently, the respondent revised the pay scale of the Medical Officer based on the recommendations of the 6th CPC, granting a Grade Pay of Rs. 5400/- instead of Rs. 4200/- that was in effect before the acceptance of the 6th CPC's recommendations. The applicant submitted a representation to the respondents, requesting an enhancement of the family pension to be in line with the GP of Rs. 5400/- as per the 6th CPC.
2.3. The applicant submitted reminder communications dated 11.04.2016, followed by letters on 09.05.2017, 03.07.2017, 20.11.2018, and 11.01.2019. In these communications, the applicant requested the respondents to rectify the revised pension, as initially communicated in 3 O.A. No.1967/2019 Item No.26 (Court no.5) her letter dated 31.07.2015. This request was reiterated in subsequent letters dated 11.08.2016, 09.05.2017, 03.07.2017, and 28.08.2017. 2.4. The applicant further sent a legal notice dated 11.01.2019 in regard to the same matter. The respondents did not respond to her repeated communications, representations, and the legal notice as mentioned above. Feeling aggrieved, the applicant has filed the present OA and is seeking the following relief:
"1. To issue fresh PPO (Pension payment order) based on correct grade pay of 5400/- & Pay band band / scale 15600- 39100 in PB-3 for the post of medical officer accordingly.
2. To Pay admissible arrears w.e.f. 01.01.2006 along with 18% interest and quashing of PPO order dated 20.03.2017, 27.07.2017 & 02.11.2017.
3. To pay award of Rs.1,00,000/- (Rupees one lac) on account of mental agony and harassment & litigation cost.
4. Any other further order the Hon'ble Tribunal deems fit in the interest of justice with cost."
3. Notices were issue to the respondents and they have filed their counter affidavit to which the applicant has also filed his rejoinder.
4. The applicant in supports her claim has tendered the following grounds:
4.1. The 6th CPC recommended a Grade Pay for the Medical Officer, which was accepted by the Government of India through a notification dated 29.08.2008. According to this notification, the Medical Officer's pay scale was revised to Rs. 50600-39100 in Pay Band III with Grade Pay of 5400/.
4.2. Learned counsel for the applicant asserts that this Pay Scale + Grade Pay should have been applicable to the applicant. In other words, 4 O.A. No.1967/2019 Item No.26 (Court no.5) according to the learned counsel for the applicant, such upgrading should be applicable to all employees, including those who have already retired. Their pensions should be calculated based on the upgraded pay scale and enhanced Grade Pay applicable to both serving and retired employees.
4.3. In support of this argument, the learned counsel for the applicant cites a judgment passed by a coordinate Bench of this Tribunal in OA No. 655/2010, decided on 01.11.2011, in the case of Central Government SAG (S-29) Pensioners Association and Anr. vs. Union of India and Ors. The relevant paragraph of the same reads as follows:
"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 or 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."
5O.A. No.1967/2019 Item No.26 (Court no.5) 4.4. He further cites order dated 03.08.2018 in OA No. 2943/2017 in JD Gupta (Retd.) V/s The Chief Secretary of Govt. of NCT of Delhi and Ors. wherein it was held:
"10. I have gone through the facts of the case carefully and considered the rival submissions made by both sides. It is indeed a matter of concern that despite orders of various judicial for a, starting from the judgment of CAT, Principal Bench, Hon'ble High Court of Karnataka, Hon'ble High Court of Delhi as well as the judgment of the Hon'ble Supreme Court on the issue, the respondents have managed to side track the issue, causing grave injustice and avoidable harassment to the applicant.
10.1 The plea of the respondents that they have revised the PPO of the applicant is not correct. The basic pay of the applicant has been shown as Rs.12723/- in the earlier PPO dated 15.06.2013 (Annexure-A5). The revised PPO (at page 6 of the counter reply). now issued by the respondents on 21.09.2017 again shows his basic pension as Rs. 12723/-, which is the same as reflected in the earlier the respondents have totally ignored the orders of the Courts by which the O.M. dated 11.02.2009 has been quashed, which stipulated denial of upgradation of pension to pre-2006 pensioners. It is indeed unfortunate that the respondents have shown utter contempt to the orders of not only the Hon'ble High Court but also of the Hon'ble Supreme Court.
11. In view of the aforesaid discussions and the citations relied upon by the applicant. I have no hesitation in concluding that the relief prayed for by the applicant is fair and just. The respondents are accordingly directed to:-
(i) Refix the pension of the applicant w.e.f. 01.01.2006 in the correct corresponding scale in PB3 + Grade Pay of Rs.7600 (pre- revised Rs.12000-16500) applicable to the post of Principal from which he retired. In the relief clause, pre revised amount has wrongly been shown as Rs.12000-15200, which has subsequently been corrected to Rs.12000-16500 in the rejoinder filed by the applicant.
(ii) Issue a fresh PPO to the applicant.
(iii) Pay the admissible arrears to the applicant w.e.f.
01.01.2006. The interest, however, may be paid w.e.f. 17.03.2015 (the date when the issue attained finality by order of the Apex Court) at GPF rate.
(iv) This exercise must be carried out expeditiously and completed within a span of three months from the date of receipt of a certified copy of this order. No costs." 6 O.A. No.1967/2019 Item No.26 (Court no.5) 4.5. In other words, the learned counsel for the applicant avers that principle of one rank one pension should be applicable for the retired employees on the basis of the Principle of equality. Two government employees retiring from the same post at different times should not get different amounts of pension.
5. Per contra, learned counsel for the respondents states that the applicant's husband died in the year 1980 when he was appointed as a Homeopathy Doctor. At that time, he was not considered a medical officer. The counsel asserts that prior to 1984, Homeopathy Doctors were not equated with Medical Officers. It was only after the recommendation of the 4th CPC that Homeopathy Doctors were equated with Medical Officers, effective from 01.01.1986. Since the applicant's husband passed away before the implementation of this change, he was not entitled to the upgraded pay scale that became applicable after his death.
5.1. The learned counsel for the respondents further states that the applicant has not submitted formal representation as required under Section 20 of Administrative Tribunal's Act 1985. He further avers that the order supported by the learned counsel for the applicant in respect of serving Govt. employees and the revision of pay scale have been made applicable to them.
5.2. In the instant case, the applicant's husband passed away in 1980; therefore, the revision cannot be applicable to individuals who retired 7 O.A. No.1967/2019 Item No.26 (Court no.5) prior to 01.01.2006. In view of this, he pleads that the present OA lacks merit and it needs to be dismissed on merit.
6. I have heard the learned counsel for the parties and perused the records.
6.1. The basic issue here is whether the revised pay scale for a particular rank of officers including enhance the Grade Pay is applicable to all the employees who have retired prior to such enhancement based on a particular pay commission recommendation. In other words, whether one-rank-one-pension is applicable in case of the civil employees.
7. Learned counsel for the respondents further referred to clause 6(i) of DOPT OM dated 28.01.2013, which reads as follows:-
The family pension at enhanced rates (under sub rule (3)(a) of Rule 54 of the CCS (Pension) Rules, 1972) of pre-2006 pensioners/family pensioners revised w.e.f. 1.1.2006 in terms of para 4.1 or this Department's OM No.1/3/2011-P&PW(E) dated 25.5.2012 would be further stepped up in the following manner:
(i) In the case of Government servants who died while in service before 1.1.2006 and in respect of whom enhanced family pension is applicable from the date of approval by the Government, i.e.24.9.2012, the enhanced family pension will be stepped up to 50% of the sum of minimum of pay in the pay band and the grade pay corresponding to the pre-revised pay scale in which the Government servant had died, as arrived at with reference to the fitment tables annexed to the Ministry of Finance, Department of Expenditure OM No.1/1/2008-IC dated 30th August, 2008. In the case of HAG and above scales, this will be 50% of the minimum of the pay in the revised pay scale arrived at with reference to the fitment tables annexed to the above-referred OM dated 30.8.2008 of Ministry of Finance, Department of Expenditure.
7.1. In the instant case, if the applicant husband's died while in service before 01.01.2006. Accordingly, the family pension of the present 8 O.A. No.1967/2019 Item No.26 (Court no.5) applicant was enhanced upto 50% the sum of minimum of pay band and grade pay corresponding to the pre-revised Pay Scale in which her husband had died, as arrived as per fitment table arrived as per Ministry of Finance order dated 30.08.2008.
7.2 It would not be out of place to trace and discuss the Evolution of Modified parity of Pensioners of the Central government. 7.3 The present policy governing the pensioners belonging to different time periods of services to the Government is best termed as "Modified Parity of Pensioners". This policy has evolved over a period of time taking into various judicial pronouncements, demands of employee associations and federations of retired employees/pensioners and deliberations amongst various wings of the Central Government. This has been succinctly mentioned in Chapter 10, specifically in Paras 10.1.53 to 10.1.63 . It will not be out of place to reproduce the entire analysis as done by the 7th Pay Commission as under:-
"Parity in Pension between Pre and Post Seventh CPC Retirees 10.1.53 This Commission has received a number of representations on the issue of disparities in pensions between past pensioners and existing pensioners. The JCM-Staff Side, has in its memorandum, stated that the pay of every pre-Seventh CPC retiree should be notionally determined (corresponding to the post from which he or she retired and not corresponding to the scale from which he or she retired) as if he or she is not retired and then the pension n be computed under the revised liberalized Rules which are to be applicable to the post Seventh CPC retirees. A similar view has been expressed by a number of other Associations/Bodies representing Central Government pensioners. Further, certain groups of pensioners have contended that based on the recommendations of the VI CPC, the new pay structure consisting of Pay Bands and Grade Pay has led to bunching of a number of pre revised pay scales into a particular Pay Band. This, in their view, has placed pre- 01.01.2006 pensioners in Certain Pay Scales/Pay Bands at a disadvantage not only compared to the post 01.01.2006 pensioners in the corresponding pay scales but also in comparison to post 01.01.2006 retirees of lower pay scales.
Analysis and Recommendations 9 O.A. No.1967/2019 Item No.26 (Court no.5) 10.1.54 The Commission is of the view that the issue of parity in pensions is extremely important from the viewpoint of inter-temporal equity and merits a careful examination.
10.1.55 Treatment of Existing and Past Pensioners over time: The concerns of pensioners' associations and of individual pensioners on the issue of disparities in pensions amongst broadly comparable retirees, has been dealt with in reports of successive CPCs and also by the government. This is detailed in the succeeding paragraphs.
10.1.56 Till the III CPC, it was a general view that past and future pensioners cannot be treated at par and the practice was that benefit of improvement in the pension would be available to newly retiring pensioners from a prospective date. In fact the III CPC took the view that serving government employees and pensioners could not be treated at par as regards grant of DA at the same rate. A significant change in the paradigm for treatment of pensioners, past and future, emerged from the judicial pronouncement in D.S. Nakara vs Union of India in 1982 (AIR 1983 SC 130), based on which, for the first time, improvements in pensionary benefits were extended to pensioners who had retired prior to the date from which improvements became effective.
10.1.57 The IV CPC recommended, for both Civil and Defence pensioners, additional relief in terms of a percentage increase in amount of pension subject to a certain minimum increase. Separate rates were applicable to pensioners drawing pension upto 500 per mensem and those above 500 per mensem.
10.1.58 The V CPC made a definitive shift in the treatment of past pensioners. The Commission took the view that the process of bridging the gap in pension of past pensioners, set into motion by the IV CPC by grant of additional relief in addition to consolidation of pension, needed to be continued so as to achieve complete parity over a period of time. It, accordingly, recommended that pension of all the pre-1986 retirees may be updated by notional fixation of their pay as on 1 January, 1986 by adopting the same formula as for the serving employees. The consolidated pension so arrived at was to be not less than 50 percent of the minimum pay, as revised by V CPC, of the scale of the pensioner at the time of retirement. This principle by which past pensioners are brought up to the minimum of the scale which replaced the scale in which the pensioner retired has been termed as modified parity. This consolidated amount of pension was to be the basis for grant of dearness relief in future.
10.1.59 The VI CPC noted that modified parity had already been conceded between pre and post 1 January, 1996 pensioners. It also observed that full neutralisation of price rise on or after 1 January, 1996 had also been extended to all the pensioners. Therefore, the Commission felt that no further changes in the extant rules were necessary. To maintain the existing modified parity between present and future retirees, it recommended that those who retired before 01.01.2006 be given the same fitment benefit as was recommended for the existing government employees.
10.1.60 The above points to a distinct transition in the view taken by successive CPCs and the government, beginning with the III CPC. The V CPC, by recommending that pension of all the pre-1986 retirees should be updated by notional fixation of their pay, made a landmark advancement in the regime for past pensioners. In principle, the VI CPC proposed provision of the same modified parity as was envisaged in by 10 O.A. No.1967/2019 Item No.26 (Court no.5) the V CPC. However, the new pay structure introduced by the VI CPC, based on running Pay Bands and Grade Pays, led to the bunching of a number of pre revised pay scales into a particular Pay Band, thereby diminishing the benefit of the intended modified parity. This naturally led to several representations following which certain corrective orders were issued by the government, some of which were based on the orders of various Courts.
10.1.61 Judicial Pronouncements on the Issue: The issue of pension has been a matter of debate in a large number of cases before the Hon'ble Supreme Court of India. One of the early leading judgments on the subject is the case of D.S. Nakara V/S Union of India &Ors. [1983] 1 SSC
305. In this case, it was held that pensioners form a class as a whole and cannot be micro-classified by an arbitrary, unprincipled and unreasonable eligibility criteria for grant of revised pension. This ratio further came up for consideration before another constitutional bench in the case of Krishan Kumar V/S Union of India &Ors. [(1990 4 SCC
207)]. This constitutional bench distinguished the D.S. Nakara (supra) and held that it has limited application. The D.S. Nakara case again came up for discussion in the case of Indian Ex Services League V/S Union of India &Ors [(1991) 2 SCC 104)]. This Constitutional Bench further considered the case of D.S. Nakara and held that this case has limited application and its ambit cannot be enlarged to cover all claims made by pensioners retirees or a demand for an identical amount of pension to every retiree from the same rank irrespective of the date of retirement, even though the reckonable emoluments for computation of their pension be different. The decision of D.S. Nakara came up for consideration in two successive constitutional benches and they did not approve the ratio enunciated in the case D.S. Nakara (Supra).
Subsequently, the case of D.S. Nakara (Supra) has been followed by some Benches and some have distinguished it. A large number of cases have been summed up recently in the decision given in the case of State of Punjab V/S Amar Nath Goyal [(2005) 6 SCC 754)]. In this case, all cases on the subject were reviewed and it was laid down that the government can make distinction in the matter of payment of pension between two classes of pensioners. Various decisions, including the aforesaid two constitutional benches i.e., Krishan Kumar (Supra) and Indian Ex-Services League (Supra) and the judgment given in D.S. Nakara(Supra) were considered. Decisions given in the case of Action Committee South Eastern Railway Pensioners V/S Union of India [(1991 Supp. (2) SCC 544)] was also referred to. In this case also, it was accepted that distinction can be made between two pensioners. Similarly in the case of State of Rajasthan V/S Amrit Lal Gandhi [(1997) 2 SCC 342)], it was held that financial implication can be a consideration for making two classes of the pensioners though similarly placed. Similarly in the case of State of Punjab V/S Buta Singh [(2000) 3 SCC
733)], the Supreme Court held that the position that emoluments of persons holding the same status who retired after a notified date must be treated to be the same cannot be accepted. In the case of State of Punjab V/S G.L. Gupta [(2003) 3 SCC 736)] it was held that for grant of additional benefits that had financial implications, the prescription of a specific future date for conferment of additional benefits could not be considered arbitrary. However, the Apex Court has also taken a contrary view in some cases relying on D.S. Nakara's case. 10.1.62 In the case of Dhanraj & Ors. V/S State of J&K and Others [(1994) 4 SCC 30)], it was held with reference to government order of J&K, that the distinction between pre and post retires of June 1981 in payment of pension cannot be justified and it is violative of Article 14 of Constitution. Similarly, in a recent judgement of Hon'ble Court given in 11 O.A. No.1967/2019 Item No.26 (Court no.5) the case of Union of India &Anr. V/S SPS Vains (Retd.) &Ors. [(2008) 2 SCC (LS 838)], the case of D.S. Nakara (Supra) was followed and it was held that the disparity created within the same class i.e., two officers both retired as Major Generals one prior to 1.1.1996 and other after that date but getting different amounts of pension was arbitrary and that the same also offends Article 14 of the Constitution of India. 10.1.63 The legal position that emerges from the aforesaid decision of the Apex Court is that classification should be founded on a rational basis while distinguishing one class from other. It should not be discriminatory or violative of Article 14 of the Constitution. The Apex Court has examined each case on its merit and wherever they have found that distinction between similarly placed classes is discriminatory then the same has been struck down."
7.4 From the above, it is clear that the Modified parity, as recommended by the Vth Pay Commission, has been accepted by the VIth and VIIth Pay Commissions. The basis of modified parity is that the basic pay scale of the retiree would be brought as "the minimum of the pay band to which revised pay falls and that would constitute the base pay scale for calculating 50% of the relevant emoluments for calculating pension on which DA shall be granted." In other words, it does not allow full parity between the retirees of the pre and post effective date of implementation. The post effective date retirees will have a separate base pension as per the revised pay scales. In other words, the Government has created two classes of retirees - one belonging to pre-specified date and the other to the post specified date. That is reasonable classification without violating Article 14 of the Constitution of India. This kind of categorization or classification has been upheld by the Apex Court in catena of judgments 7.5. The Parity between pre and post defined period retirees has also been dealt in the One Rank one Pension (OROP) issue in case of the retirees from the Armed Forces. The Government of India, vide their OM No 12(1) 2014/D (Pen/Pol)-Part-II dated 7.11.2015 by the 12 O.A. No.1967/2019 Item No.26 (Court no.5) Department of Ex-servicemen Welfare, Ministry of Defence, has notified the One Rank One Pension (OROP) to the Defence Force Personnel. This was a hybrid parity principle applied to the retirees of Defence forces. The retirees from Armed Forces agitated against this notification of modified parity, demanding full parity of all retirees from the same ranks, with the same years of service. They claimed that the 2015 OROP policy differed from the original promise based on the Koshyari Committee Report. In the 2015 policy, enhancements in pension were not 'automatically' passed on to past pensioners. As per the 2015 policy, servicemen who retired prior January 1st 2014 would be entitled to pension on the basis of the average of the maximum and minimum salary drawn for their rank in 2013. Servicemen who retired after January 1st 2014 would receive pension based on their last drawn pay. The rates of pension would be revised every five years, rather than automatically, with the first revision due in 2019. 7.6. The veterans objected to the creation of two classes of pensioners earning different rates of pension despite having retired from the same rank and having served for the same amount of time. They filed a petition in the Supreme Court in Writ Petition (Civil) No. 419 of 2016 titled Indian Ex Servicemen Movement & Ors. Vs. Union of India & Ors. On March 16th 2022, a Bench comprising Justices D.Y. Chandrachud and Surya Kant upheld the 'One Rank One Pension' (OROP) policy as proposed by the Union Government. The petitioners claimed that the 2015 policy was arbitrary and discriminatory under Articles 14 and 21 as it created two separate classes of retirees having 13 O.A. No.1967/2019 Item No.26 (Court no.5) the same rank and years of service. Further, the petitioners claimed that the Union government reneged on their OROP promise by not adhering to the Koshyari Committee Report.
6.3. 3 The Court dealt with two questions:
(i) Is the Union's 2015 OROP policy arbitrary and discriminatory?
(ii) Was the Union's 2015 OROP scheme contrary to the original policy decision of the Government?
8. The Supreme Court held that the policy was not discriminatory--the same definition of OROP was applicable to all pensioners irrespective of their date of retirement. All pensioners are subjected to the same periodic review. No separate category was made for automatic review. The Court also held that there was no legal mandate entitling pensioners holding the same rank to the same amount of pension. 8.1. Additionally, the Apex Court held that the decision to use the average of the maximum and minimum salary drawn for the rank in 2013 is a policy decision. As such, the Court does not have the jurisdiction to interfere with such decisions. The Supreme Court upheld the Ministry of Defence's November 2015 communication and stated that the 2015 policy could not be struck down merely because it violated the 'original understanding' of the policy. The makers of a policy are at liberty to determine its implementation. 8.2. The Apex Court has examined the issue when the government created two distinct class of retirees based on reasonable classification and upheld that such distinction is not discriminatory and violative of Article 14 of the Constitution of India.
14O.A. No.1967/2019 Item No.26 (Court no.5) 8.3. There are two strands of judgments by the Central Administrative Tribunal, the High Courts and the Apex Court. One strand follows the ratio of the judgment of the Apex Court in D.S. Nokara (supra) case which held that pensioners from a single class as a whole and cannot be micro-classified into different classes for grant of revised pension. The other group of judgments follow the Krinshnaswamy (supra) case. 8.4. It would not be out of place to analyze the orders of various Coordinated Benches of the CAT regarding revision/ upgradation of pay scales applicable to retirees. The Full Bench of the CAT in its order dated 01.11.2011 in OA No. 0655/2010 along with OA No. 3079/2010, OA No. 0306/2010 and OA No. 0507/2010 analyzed the issue relating to the revised pay scales of principals of Delhi Government schools, which were revised as per the 6th Pay Commission Recommendations (as accepted by the Central Government), with effect from 1.1.2006 to Rs 12,000-16,500 in PB- III with Grade Pay of Rs 7,600/-. However, vide OM dated 11.02.2009, the Department of Pension and Pensioners' Welfare clarified that the pre-2006 pensioners would not be subject to the benefit of the above said revision. The Full Bench of CAT vide order dated 1.11.2011 granted "parity" to both pre-2006 and post 2006 pensioners and directed all pensioners of all pre-2006 be fixed w.e.f 1.1.2006 in accordance with 6th CPC.
8.5. This order of the Tribunal was challenged in the Delhi High Court and subsequently in the Supreme Court. The decision of the Full Bench 15 O.A. No.1967/2019 Item No.26 (Court no.5) of CAT at its Principal Bench was upheld by these Superior Courts. The operative part of the said order of CAT is as follows:-
"29. From the above extracted portion it is clear that the principle of modified parity, as recommended by the V CPC and accepted by the VI CPC and accepted by the Central Government provides that revised pension in no case shall be lower than 50% of the sum of the minimum of the pay in the pay band and grade pay corresponding to revised pay scale from which the pensioner had retried. According to us, as already stated above, in the garb of clarification, respondents interpreted minimum of pay in the pay band as minimum of the pay band. This interpretation is apparently erroneous, for the reasons:
a) if the interpretation of the Government is accepted it would mean that pre-2006 retirees in S-29 grade retired in December, 2005 will get his pension fixed at Rs.23700/- and anther officer who retired in January 2006 at the minimum of the pay will get his pension fixed at Rs.27350/-. This hits the very principle of the modified parity, which was never intended by the Pay Commission or by the Central Government;
b) The Central Government improved upon many pay scales recommended by the VI CPC. The pay scale in S-29 category was improved from Rs.39200-67000/- plus Grade Pay of Rs.9,000/- with minimum pay of Rs.43280/- to Rs.37,400-
67000/- with grade pay of Rs.10,000/- with minimum pay of Rs.44,700/- (page 142 of the paper-book). If the interpretation of the Department of Pension is accepted, this will result in reduction of pension by Rs.4,00/- per month. The Central Government did not intend to reduce the pension of pre-2006 retirees while improving the pay scale of S-29 grade;
c) If the erroneous interpretation of the Department of Pension is accepted, it would mean that a Director level officer retiring after putting in merely 2 years of service in their pay band (S-24) would draw more pension than a S-29 grade officer retiring before 1.1.2006 and that no S-29 grade officer, whether existing or holding post in future will be fixed at minimum of the pay band, i.e., Rs.37,400/-. Therefore, fixation of pay at Rs.37,400/- by terming it as minimum of the pay in the pay band is erroneous and ill conceived; and
d) That even the Minister of State for Finance and Minister of State (PP) taking note of the resultant injustice done to the pre- 11.2006 pensioners (pages 169-170) had sent formal proposal to the Department of Expenditure seeking rectification but the said proposal was turned down by the officer of the Department of Expenditure on the ground of financial implications. Once the Central Government has accepted the principle of modified parity, the benefit cannot be denied on the ground of financial constraints and cannot be said to be a valid reason.
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 16 O.A. No.1967/2019 Item No.26 (Court no.5) 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"
9. The CAT vide order dated 01.11.2011 held that "Central Government provides that the "the revised pension in no case shall be lower than 50% of the sum of the minimum of the pay in the pay band and grade pay corresponding to revised pay scale from which the pensioner retired".
9.2. The said order did not pronounce that the revised pay scale for the principals who retired prior to 1.1.2006 was Rs 12,000-16,500 in PB- III with Grade Pay of Rs 7,600/ instead of Rs 10,000- 15,5000 which becomes the revised pay scale after the conversion table by the said Pay Commission. In other words, the Full Bench upheld the principle of modified parity . The question of upgradation pay scale of the Principals was not an issue and no finding was given in the said order which was upheld till the Supreme Court.
10. Subsequently, various orders of the Tribunal followed this order of the full bench of CAT and erroneously interpreted that whenever any upgradation takes place for a particular post and higher pay scales were granted to the incumbents serving thereon, then all retirees irrespective of their date of retirement shall get the pension based on the same upgraded scale. This is going beyond the principle upheld by the Full Bench of CAT and upheld by the Apex court. When full parity was not an issue and no verdict was given regarding that, the subsequent CAT orders have accepted this erroneous interpretation and allowed the base 17 O.A. No.1967/2019 Item No.26 (Court no.5) pension following the principals of Full Parity against the recommendations by the subsequent Pay Commissions and accepted by the Central Government.
10.1. Upgradation of a post and the revised payscales thereof creates separate classes of pensioners. Over a period of time, the job requirement of Organizations within Government changes. Some changes are gradual and others are significant and the nature of the jobs and posts undergo significant change. Depending on the job requirement, sometimes the educational qualifications and experience for a post also undergo change. Accordingly, the Pay Commissions also recommend different and upgraded pay scales for the incumbents in a particular rank. That applies prospectively to the serving employees and on their retirement, the upgraded pay scale becomes the basis on which they draw their pensions. But the retirees from the same rank prior to such upgardation are entitled the revised pay scale as per Vth Pay Commission Principles "that the revised pension in no case shall be lower than 50% of the sum of the minimum of the pay in the pay band and grade pay corresponding to revised pay scale from which the pensioner retired."
10.2. Giving the benefit of full parity i.e. allowing the upgraded and revised pay scales to the previously retired employees is against the policy of the Government. The Government has rightly adopted the policy of Modified Parity, both for the civilian retirees (as per the 18 O.A. No.1967/2019 Item No.26 (Court no.5) principle of Vth Pay Commission Recommendations) and to the veterans retired from the Defence Forces (as per the 2015 OROP Policy). 10.3. I agree with the averment by the counsel for the Respondents that the Apex court in Krishna Swamy (supra) case has clarified that the upgraded pay scales are not applicable to pre-upgraded retirees . I also agree with the contention of the counsel for the respondents that the Full Bench decision of the CAT which have given modified parity may be considered as judgments in personam than in judgments in rem as the issues framed here had not been framed in those judgments /orders and as full parity has not be declared and upheld as policy by the Central Government in pursuance to those judgments /orders. Hence, the ratios of judgments cited by the learned counsel for the applicants are not applicable to the present case where full parity sought between the retirees from the post of Principal prior to the upgradation of the pay scales and after the upgradation of the pay scale of the post of principal. 10.4 In OA no. 2726/2019, OA No.2729/2019 (decided on 4.12.2022), OA No. 4138/2017 2 (decided on 23.2.2022) OA No. 655/2021 (decided on 3.8.2021), have quoted the order of this Tribunal in OA no. 2943/2017 decided on 3.8.2018 and upheld by the Delhi High Court in WP( C ) no. 2255 of 2019. The Coordinated Bench of CAT in OA no. 2493/2017 in the matter of J D Gupta Vs The Chief Secretary of NCT of Delhi has extended full parity between the pre and post 2006 retirees without discussing the issue that the pay scale of the principal has been upgraded to new scale rather that just revising the pay scales by applying 19 O.A. No.1967/2019 Item No.26 (Court no.5) the conversion formula and putting the pre -revised scale in a new scale appropriate as per the Pay Commission fitment table for the relevant pay band. Even the spirit of Full Bench judgment in OA no 0655/2010 was also lost in those judgments/orders. The Full Bench in the said judgment dated 1.11.2011 upheld the modified parity than allowing full parity. According to OM F.No. 37/08-P& PW(A) dated 28.1.2013, The pension of pre-2006 pensioners would be stepped up to 50% the sum of the sum of minimum of pay in the Pay Band and Grade Pay corresponding to the pre-revised pay scale from which the pensioner retired , as arrived at with the fitment tables annexed to the Ministry of Finance , Department of Expenditures OM No. 1/1/2008-7IC dated 30th August 2008." The Department of Pension and Pensioners' Welfare vide their Om No. 38/37/08 -P& PW (A) dated 30.6.2015 has further clarified:
2. Several petitions were filed in Central Administrative Tribunal, Principal Bench, New Delhi inter alia claiming that the revised pension of the pre-2006 pensioners should not be less than 50% of the minimum of the pay band + grade pay, corresponding to the pre-revised pay scale from which pensioner had retired, as arrived at with reference to the fitment tables annexed to Ministry of Finance, Department of Expenditure OM No.1/1/2008-1C dated 30th August, 2008.
Hon'ble CAT, Principal Bench, New Delhi vide its common order dated 01.11.2001 in OA No.655/2010 and the other connected OAs directed to re-fix the pension of all pre-2006 retirees w.e.f. 1.1.2006 based on the Resolution dated 29.8.2008 of the Department of Pension & Pensioners' Welfare and in the light of the observations of Hon'ble CAT in that order.
3. The above order was challenged by the Government by filing Writ Petition No.1535/2012 in respect of OA No. 655/2010 and WP No.2348-50/12 in respect of the three other connected OAs in the High Court of Delhi. The Hon'ble High Court in its common Order dated 29.4.2013 noted that the DoP&PW had, in the meanwhile, issued an OMNo.38/37/08- P&PW (A) dated 28.1.2013 which provided for stepping up of pension of pre-2006 pensioners w.e.f. 24.9.2012 to 50% of the 20 O.A. No.1967/2019 Item No.26 (Court no.5) minimum of pay in the pay band and grade pay corresponding to pre-revised pay scale from, which the pensioner had retired. Hon'ble High Court observed that the only issue which survived was, with reference to Paragraph 9 of OM dated 28.1.2013 which makes it applicable w.e.f. 24.9.2012 instead of 1.1,2006. Hon'ble High Court of Delhi dismissed the Writ Petition No.1535/2012 along with three other Writ Petition vide its order dated 29.4.2013. Special Leave Petitions (No.23055/2013 and No.36148-50/2013) filed against the said order dated 29/4/2013 of the Hon'ble Delhi High Court have also been dismissed by the Hon'ble Supreme Court.
4. Accordingly, in compliance with the above judicial pronouncements, it has been decided that the pension/family pension of all pre-2006 pensioners/family pensioners may be revised in accordance with this Department's OM No.38/37/08-P&PW(A) dated 28.1.2013 with effect from 1.1.2006 instead of 24.9.2012. Further, this benefit has already been granted to the Applicants in OA No. 655/2010 vide OM of even No. dated 26/08/2014 read with OM dated 19/09/2014 following dismissal of SLP (C) No.23055/2013 by the Hon'ble Supreme Court.
11. In view of this, I find no infirmity in the impugned order dated 27.07.2017. Accordingly, the OA lacks merit and hence is dismissed. No order as to costs.
(Dr. Chhabilendra Roul) Member (A) /arti/