Central Administrative Tribunal - Delhi
K.K.Nangia vs Union Of India on 26 August, 2014
Central Administrative Tribunal Principal Bench New Delhi O.A.No.1799/2013 Order Reserved on: 21.08.2014 Order pronounced on 26.08.2014 Honble Shri V. Ajay Kumar, Member (J) K.K.Nangia Aged about 60 years S/o Late Sh. B.L.Nangia R/o GH-13/258 Paschim Vihar New Delhi 110 087. Applicant (By Advocate: Shri Anil Singal) Versus Union of India Through Secretary Department of Agriculture Research & Education Govt. of India cum- Director General ICAR, Krishi Bhawan New Delhi 1. The Director IARI, Pusa, New Delhi. Chief Administrative Officer (Pension) IARI, Pusa, New Delhi. Chief Finance & Accounts Officer IARI, Pusa, New Delhi. Respondents (By Advocate: Shri Varun Kumar for Shri Gagan Mathur) O R D E R
The applicant was originally appointed in the respondent Indian Agricultural Research Institute (IARI) [under the administrative control of the 1st Respondent, Ministry of Agriculture] on 19.07.1967.
2. While he was working as Assistant Administrative Officer in the pay scale of Rs.6500-10500 (Pre-revised), he was sent on deputation to the Protection of Plant Varieties and Farmers Rights Authority [in short, PPVFRA] i.e., another department under the Ministry of Agriculture, vide Order dated 19.03.2007, as Deputy Registrar in the pay scale of Rs.10000-15200. He was promoted to the post of Administrative Officer in his parent department, vide order dated 03.09.2007, i.e., while he was on deputation to PPVFRA. On his repatriation, the applicant joined in his parent office as Administrative Officer on 17.12.2007 and while working as such, he was retired from service on attaining the age of superannuation on 28.02.2008.
3. Though, as per rules, the applicants retirement/pensionary benefits were required to be calculated on the basis of the average pay for the last 10 months pay/allowances including his pay and allowances when he was on deputation, the respondents wrongly calculated his retirement/pensionary benefits on the basis of last 10 months pay/allowances that might have been drawn in his parent office as if he was not sent on deputation. The representation of the applicant against the said illegal fixation was rejected by the respondents vide impugned order dated 22.04.2013. Hence, the present OA.
4. Heard Shri Anil Singal, the learned counsel for the applicant, and Shri Varun Kumar, proxy of Shri Gagan Mathur, learned counsel for the respondents, and have perused the pleadings on record.
5. Shri Anil Singal, the learned counsel for the applicant, submits that the issue involved is no more res integra since this Tribunal in identical circumstances and in respect of former colleague of the applicant in OA No.1439/2009 (B. L. Jain v. Union of India & Others) dated 13.01.2010, after considering Note 7 to Rule 33 of the CCS (Pension) Rules, 1972, categorically held that the applicant therein is entitled to receive his pension on the basis of average of last 10 months pay whether he had served in the parent department or the borrowing department as the parent department had willingly released his services to the borrowing department, and hence, the applicant herein is also entitled for the reliefs as prayed for.
6. The learned counsel also placed reliance on the Judgement of the Honble High Court of Delhi in WP (C) No.8786/2011 dated 10.07.2013 (Union of India v. Kiran Lal) to buttress his contentions.
7. Per contra, Shri Varun Kumar, proxy of Shri Gagan Mathur, the learned counsel for the respondents while not disputing the fact of passing of a Judgment by this Tribunal in the similar circumstances, however, submits that the same cannot be made applicable to the applicant as the same is a judgment in personam but not in rem. He would further submit that the applicant retired from service on 28.02.2008 and hence, the present OA filed on 24.05.2013 is barred by limitation.
8. We may refer to the judgment of the Supreme Court in D.S. Nakara v. Union of India (1983) 1 SCC 305, where the Court has held as under :
31..(i) that pension is neither a bounty nor a matter of grace depending upon the sweet will of the employer and that it creates a vested right subject to 1972 Rules which are statutory in character because they are enacted in exercise of powers conferred by the proviso to Article 309 and Clause (5) of Article 148 of the Constitution, (ii) that the pension is not an ex gratia payment but it is a payment for the past service rendered; and (iii) it is a social welfare measure rendering socio-economic justice to those who in the hey day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. It must also be noticed that the quantum of pension is a certain percentage correlated to the average emoluments drawn during last three years of service reduced to ten months under liberalised pension scheme. Its payment is dependent upon an additional condition of impeccable behaviour even subsequent to retirement, that is, since the cessation of the contract of service and that it can be reduced or withdrawn as a disciplinary measure.
9. In State of Madhya Pradesh and Others v. Yogendra Shrivastava, (2010) 10 SCC 538, the Honble Apex Court held:
18. .. Where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the doctrine of laches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on continuing wrong. Though the lesser payment may be a consequence of the error that was committed at the time of appointment, the claim for a higher allowance in accordance with the Rules (prospectively from the date of application) cannot be rejected merely because it arises from a wrong fixation made several years prior to the claim for correct payment. But in respect of grant of consequential relief of recovery of arrears for the past period, the principle relating to recurring and successive wrongs would apply. Therefore the consequential relief of payment of arrears will have to be restricted to a period of three years prior to the date of the original application. [See: M.R. Gupta vs. Union of India - 1995 (5) SCC 628, and Union of India vs. Tarsem Singh 2008 (8) SCC 648]
10. As the issue involved in the present case is wrong fixation of pension, which is a recurring cause of action, in view of the categorical declaration of law by the Honble Apex Court, the contention of the respondents that the OA is barred by limitation is untenable, and, hence, it is rejected.
11. Now, if we refer the rule position on the subject, it is seen that Rule 3(g) of the CCS (Pension) Rules, 1972 defines `foreign service as under:
Rule 3 (g) `Foreign service' means services in which a Government servant receives his pay with the sanction of the Government from any source other than the Consolidated Fund of India or 4[the Consolidated Fund of a State or the Consolidated Fund of a Union Territory]. Rule 33 and Note 7 thereunder, read as under:
Rule 33:
Emoluments: [The expression `emoluments' means basic pay as defined in Rule 9 (21) (a) (i) of the Fundamental Rules which a Government servant was receiving immediately before his retirement or on the date of his death ; and will also include non-practising allowance granted to medical officer in lieu of private practice.] Note 7:
Pay drawn by a Government servant while on foreign service shall not be treated as emoluments, but the pay which he would have drawn under the Government had he not been on foreign service shall alone be treated as emoluments.
12. A Coordinate Bench of this Tribunal in the identical circumstances in B.L.Jains case (supra) dealt with Note 7 of Rule 33 of the CCS (Pension) Rules, 1972 and observed as under:
2. The respondents would contend that under Note 7 of Rule 33 of the Pension Rules, the emoluments, are to be calculated differently and, therefore, they can only view his service as foreign service on the basis of the Office Memorandum issued by the Govt. of India No.2/29/91-Estt (Pay II) dated 5.1.1994. The applicant has also filed a rejoinder in which the Government of Indias order has been annexed, as is reported in Swamys Compilation on Fundamental Rule wherein the foreign service is defined as a service in which a government servant receives his pay with the sanction of the Government from any source other than the Consolidated Fund of India or the Consolidated Fund of State or the Consolidated Fund of Union Territory. Therefore, the applicant would contend that his service is a purely on deputation basis and not foreign service. Therefore, Rule 33 of the Pension Rules has no application to him.
3. Following the judgment of Honble Apex Court, which has held that if by fortuitous chance a person was in employment in any other similar situated Government functionality, the benefit thus accrued to him cannot be taken away by the Government on the ground that he had returned to his parent department and while so had retired. Therefore, there is merit in the contentions raised by the applicant.
4. In the light of discussions made above, the impugned order is hereby quashed. It is declared that the applicant is entitled to receive his pension, on the basis of average of last 10 months pay whether he had served, in the parent department or the borrowing department, as the parent department had willingly released his services to the borrowing department and if at all he could obtain additional benefits while on deputation, it cannot be taken away on his re-joining the parent department, as it had already accrued to him. His re-fixing in the same grade will not bring down the effect of his earlier scale of pay, which also has to be taken into account as he had returned with only two months to spare. and accordingly, allowed the said OA.
13. The applicant in OA No.1439/2009 and the applicant in the present OA are similarly situated and hence, the Judgment in OA No.1439/2009 squarely applicable to the applicant also.
14. In Kiran Lals case (supra), the Honble High Court of Delhi, while dealing with a Railway servant, who was sent on deputation to Centre for Railway Information System (CRIS), an organization created within the Railways, held that the last 10 months emoluments which he received including the emoluments while he was on deputation with CRIS were to be taken for consideration for fixing his pension.
15. In the circumstances and for the aforesaid reasons, the OA is allowed and the impugned order dated 22.04.2013 (Annexure A1) is quashed and the respondents are directed to calculate the retirement/pensionary benefits of the applicant on the basis of the last 10 months pay/allowances including his pay and allowances when he was on deputation with all consequential benefits. However, in the circumstances and in view of the decision of the Honble Apex Court in Union of India v. Tarsem Singh, (2008) 8 SCC 648, the applicant is entitled for arrears w.e.f. three years prior to the date of filing of the present OA only. The aforesaid directions shall be complied within a period of three months from the date of receipt of a copy of this order. No order as to costs.
(V. Ajay Kumar) Member (J) /nsnrvak/