Central Administrative Tribunal - Delhi
C M Dubey vs Kendriya Vidyalaya Sanghthan on 3 July, 2023
1
RA-58 of 2023 in OA No.2047 of 2019
Court No.6 (item No.38)
Central Administrative Tribunal
Principal Bench
RA-58 of 2023
In
OA No.2047/2019
Reserved on: 01.06.2023
Pronouncement on: 03 .7. 2023
Hon'ble Dr.Chhabilendra Roul, Member (A)
1. C.M. Dubey, Aged 74 years ‗A'
S/o Late Sh. D.P. Dubey
Retired Principal from KVS
R/o M/Ex/178, E-7 Extension, Bhopal (MP)
2. P.S. Nagar, Aged 82 Years ‗ A'
S/o Late Sh. R.V. Nagar
Retired Principal from KVS
R/o MIG-201, E-7 Bhopal(MP) -Applicants.
(Through Advocate: Mr.Yogesh Sharma)
Versus
1. Union of India
Through the Secretary
Ministry of Human Resources Development,
Govt. of India, Shastri Bhawan
New Delhi.
2. The Secretary,
Ministry of Personnel, PG & Pension
Department of Pension & Pensioner Welfare
North Block, New Delhi.
3. The Commissioner
Kendriya Vidyala Sangathan,
18, Institutional Area,
Shaheed Jeet Singh Marg, New Delhi.
4. The Assistant Commissioner (Finance),
Kendriya Vidyala Sangathan,
18, Institutional Area,
Shaheed Jeet Singh Marg, New Delhi.
2
RA-58 of 2023 in OA No.2047 of 2019
Court No.6 (item No.38)
(Through Advocate: Mr. Gyanendra Singh)
-Respondents
ORDER
By Hon'ble Dr.Chhabilendra Roul, Member (A):-
1. The present Review application has been filed by the applicant seeking review of the order dated 23.3.2023 passed in respect of OA no. 2017 /2019 in CM Dubey and. another Vs,. Union of India. This Tribunal passed the following order in the said OA:-
7. The learned counsel for the respondents have stated that the pensioners were given enhanced pension erroneously taking into account the upgraded pay scale of the Principal at Rs.12000-
16500/- as it was not applicable to them as they retired as on before 1.1.2006 and hence their revised pension was reduced, making the relevant corrections. The applicants in their OA and their counsel during the course of arguments have not produced any government instructions which allows the applicability of the Grade Pay of Rs. 12000-16500 in PB-III + Grade Pay of Rs.7600 applicable to the Principals who have retired prior to 1.1.2006. The Government has the prerogative to upgrading any particular post to a higher scale and making that applicable prospectively, not retrospectively. After the recommendations of 7th CPC, the grade of Principal were upgraded to 12000 to 16500 in Pay Band III + Grade Pay of Rs. 7600. The corresponding pre revised pay scale of Principal who retired prior to 1.1.2006, as per the fitment table, was Rs.12000-15200 in PB -III + Grade Pay of Rs.7600. The applicants are under the erroneously belief that they are entitled for the 3 RA-58 of 2023 in OA No.2047 of 2019 Court No.6 (item No.38) enhanced pay scale of Principals which was made effective w.e.f. 1.1.2006. In case of applicant No.2 neither the applicant in his OA nor his counsel during the arguments could produce any calculation sheet as to how the applicant no.2 was not given benefits of the OM dated 6.4.2016. The respondents have in their counter affidavit stated on oath that the applicants have given the benefits as per this OM dated 6.4.2016 and the revised pay of the applicant was not fixed on pro rata basis.
2. Here the issue is whether the Central Government has accepted the principle of full parity between the retirees before a defined date and after the said date, and whether the Superior Courts including the Apex Court have accepted the ―modified parity than the full parity among such two classes of retirees.
3. It would not be out of place to analyses the evolution of Modified Parity of Pensioners as a policy decision by the Central Government alongwith various judgments by the Apex Court, including the judgment in the case of OROP in 2019.
3.1 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 4 RA-58 of 2023 in OA No.2047 of 2019 Court No.6 (item No.38) 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 of the Report of the Pay Commission. The following is the reproduction of 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 tothe 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 10.1.54 The Commission is of the view that the issue of parity in pensions is extremely important 5 RA-58 of 2023 in OA No.2047 of 2019 Court No.6 (item No.38) 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 pensionery 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 6 RA-58 of 2023 in OA No.2047 of 2019 Court No.6 (item No.38) 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 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 7 RA-58 of 2023 in OA No.2047 of 2019 Court No.6 (item No.38) 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 benchesand 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 8 RA-58 of 2023 in OA No.2047 of 2019 Court No.6 (item No.38) made between two pensioners. Similarly in the case of State of Rajasthan V/S Amrat 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 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.‖ 9 RA-58 of 2023 in OA No.2047 of 2019 Court No.6 (item No.38)
3. 2. 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 3.3 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 10 RA-58 of 2023 in OA No.2047 of 2019 Court No.6 (item No.38) No 12(1) 2014/D (Pen/Pol)-Part-II dated 7.11.2015 by the 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 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 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.
3.3.1 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 11 RA-58 of 2023 in OA No.2047 of 2019 Court No.6 (item No.38) served for the same amount of time. They filed a petion 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 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.
3.3.2 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?
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 12 RA-58 of 2023 in OA No.2047 of 2019 Court No.6 (item No.38) no legal mandate entitling pensioners holding the same rank to the same amount of pension.
3.3.3. 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.
4. 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.
4.1 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) 13 RA-58 of 2023 in OA No.2047 of 2019 Court No.6 (item No.38) 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 strand follows the ratio of the judgment in K.S. Krishnaswamy (supra) case allowing two classes of pensioners. As the Krishnaswamy (supra) judgment is 23 years after the judgment in the Nakara case (supra), subsequent judgments by the High Courts and the Apex Court in OROP case apply the ratio of the Krishnaswamy case.
The Apex Court in K.S. Krishnaswamy vs Union of India in Civil Appeal No. 3174 of 2006 wherein it was held that:
―It is common knowledge that an increase in the pay scale in any recommendation of a pay commission is a corresponding increase in the pay scale. In our view, therefore, Executive Instructions dated 11.5.2001 have been validly made keeping in view the recommendations of the Pay Commission accepted by the Policy Resolution of the Government on 30.9.1997, clarified by Executive Instructions dated 17.12.1998. The Executive Instructions dated 11.5.2001 neither over-ride the Policy Resolution dated 30.9.1997 nor Executive Instructions dated 17.12.1998 clarifying the Policy Resolution dated 30.9.1997. The Executive Instructions dated 11.5.2001 were in the form of further clarifying the Executive Instructions dated 17.12.1998 and do not over-ride the same.
Counsel for the appellants heavily relied on the Constitution Bench decision of this Court in D.S. Nakara v. Union of India (1983) 1 SCC 305 where this Court at Page 345 SCC observed that "liberalised pension scheme becomes operative to 14 RA-58 of 2023 in OA No.2047 of 2019 Court No.6 (item No.38) all pensioners governed by 1972 Rules irrespective of the date of retirement."
Nakara's case (supra) has been distinguished by this Court in State of Punjab & Ors. v. Boota Singh & Anr. (2000) 3 SCC 733; State of Punjab & Anr. v. J.L. Gupta & Ors. (2000) 3 SCC 736; State of West Bengal and Anr. v. W.B. Govt. Pensioners' Association & Ors. (2002) 2 SCC 179; and State of Punjab & Ors. v. Amar Nath Goyal & Ors. (2005) 6 SCC 754.
Nakara's case (supra) was a case of revision of pensionary benefits and classification of pensioners into two groups by drawing a cut off line and granting the revised pensionary benefits to employees retiring on or after the cut- off date. The criterion made applicable was "being in service and retiring subsequent to the specified date". This Court held that for being eligible for liberalised pension scheme, application of such a criterion is violative of Article 14 of the Constitution, as it was both arbitrary and discriminatory in nature. It was further held that the employees who retired prior to a specified date, and those who retired thereafter formed one class of pensioners. The attempt to classify them into separate classes/groups for the purpose of pensionary benefits was not founded on any intelligible differentia, which had a rational nexus with the object sought to be achieved. The facts of Nakara's case (supra) are not available in the facts of the present case. In other words, the facts in Nakara's case are clearly distinguishable.
In Indian Ex-Services League v. Union of India (1991) 2 SCC 104, this Court distinguished the decision in Nakara's case (supra) and held that the ambit of that decision cannot be enlarged to cover all claim by retirees or a demand for an identical amount of pension to every retiree, irrespective of the date of retirement even though the emoluments for the purpose of computation of pension be different. In K.L. Rathee v. Union of India (1997) 6 SCC 7, this Court, after referring to various judgments of this Court, has held that Nakara case cannot be interpreted to mean that emoluments of persons who retired after a notified 15 RA-58 of 2023 in OA No.2047 of 2019 Court No.6 (item No.38) date holding the same status, must be treated to be the same. In our view, therefore, the ratio in Nakara's case (supra) is not applicable in the facts of the present case.‖ The overwhelming catena of judgments upheld the modified parity of pensioners as recommended by the Vth Pay Commission and subsequently reiterated by the VIth and VIIth pay commissions and by the Government. This OROP notification by the Ministry of Defence in 2015 is also a sort of Modified parity among pensioners.
4.2 It would not out of place to analyze the orders of various Coordinated Benches of the CAT regarding revision of pensions. The Full Bench of 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 11.2.2009, the Department of Pension and Pensioners' Welfare clarified that the pre-
2006 pensioners would not be subject to the benefit of 16 RA-58 of 2023 in OA No.2047 of 2019 Court No.6 (item No.38) 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.
4.2.1 This order of the Tribunal was challenged in the Delhi high Court and subsequently in the Supreme Court. The decision of the full bench 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;
17RA-58 of 2023 in OA No.2047 of 2019 Court No.6 (item No.38)
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 was rejected by common order, are required to be quashed and set aside, which we accordingly do. Respondents are directed to re-fix 18 RA-58 of 2023 in OA No.2047 of 2019 Court No.6 (item No.38) 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‖ 4.2.2 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‖.
4.2.3 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.
4.3 Subsequently, various orders of the Tribunal followed this order of the full bench of CAT and 19 RA-58 of 2023 in OA No.2047 of 2019 Court No.6 (item No.38) erroneously interpreted that whenever any upgradation takes place for a particular post and higher pay scales were granted to the incumbents serving there on, then all retirees irrespective of their retirement at a point of time 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 pension based on the upgraded pay scales following the principal of full parity against the recommendation by the Pay Commissions and policy accepted by the Central Government.
4.4 Upgradation of post and the payscale thereof by the Government creates a separate class 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 20 RA-58 of 2023 in OA No.2047 of 2019 Court No.6 (item No.38) pay scales to the incumbents for 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 upgradation are entitled the revised pay scale as per Vth pay commission principles ―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.‖ 4.5 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 principle of Vth Pay Commission Recommendations) and to the veterans retired from the Defence Forces (as per the 2015 OROP Policy).
5. In view of the above, the judgments and CAT orders which have given full parity may be considered as judgments in personum than in judgments in rem. In those judgments issues had not been framed in those 21 RA-58 of 2023 in OA No.2047 of 2019 Court No.6 (item No.38) lines and full parity has not been declared and upheld as policy by the Central Government in pursuance of those judgments /orders. Hence, the ratio of judgments cited by the learned counsel for the applicants giving benefit of full parity between the retirees from the post of Principal prior to the upgradation revision of the pay scales and after the upgradation of the pay scale of the post of principal are not applicable to the present case.
5.1 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 quote 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/revised to new scale rather that just revising the pay scales by applying the conversion formula and putting the pre -revised scale in a new scale appropriate as per the Pay Commission Fitment Table for the respective Pay Band. Even the spirit of Full 22 RA-58 of 2023 in OA No.2047 of 2019 Court No.6 (item No.38) Bench judgments 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 garde 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-IC dated 3oth 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.
23RA-58 of 2023 in OA No.2047 of 2019 Court No.6 (item No.38)
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 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.
6. In the instant case the learned counsel for the respondents further averred that the above judgment of the Apex court has been applied in OA No. 183/ 2013 24 RA-58 of 2023 in OA No.2047 of 2019 Court No.6 (item No.38) by the Coordinated Bench of this Tribunal at Ahmedabad vide order dated 13.7.2015 examined the issue regarding allowing revised pension with reference to minimum of the upgraded pay scale instead of minimum of the corresponding pay scale the applicants therein and dismissed the claim of the applicant. This decision of the Ahmadabad Bench was upheld by the Gujarat High Court in CA no. 1746/2015. The Principal Bench of this Tribunal, vide order dated 15.2.2016 in OA no. 2553 of 2014 clarified that the Full Bench decision of this Tribunal vide order is not a decision in rem rather a judgment in personam. When posts and pay scales are upgraded after the retirement of employees, it was held that such upgraded pay scales are not applicable to the pre-upgraded employees applying full priority.
6.1 The learned counsel for the respondents further drew attention to the judgment of the Delhi High Court order dated 4.11.2016 in WP No. 7821 of 2012 wherein it was held that the Full Bench decision of this Tribunal did not consider the case of upgradation of posts and pay scales to different posts. He further averred that the Delhi High Court allowed the benefit of upgraded pay scales to pre-upgraded employees in 25 RA-58 of 2023 in OA No.2047 of 2019 Court No.6 (item No.38) WP(C ) No. 3035 of 2016 titled Rampal Vs Union of India and Others, but the Apex Court vide order dated 29.10.2018 has stayed this judgment of the Delhi High Court.
6.2 Similarly, the counsel for the respondents drew attention to the decision of the Apex Court in Union of India & Ors vs R Sethumadhavan has struck down the decision of the Madras High Court in WP No. 13207/ 2013 wherein the High Court allowed the benefit of upgradation without discussing the apex Courts decision in K.S. Krishnaswamy case(supra).
7. In view the above, the claim of the applicants to revise the base scale of Principal to Rs 12,000- 16,5000/ with Grade pay of Rs 7,600 amounts to full parity. Instead, the respondents have to step up to 50% sum of the minimum of pay in the pay band and grade pay corresponding to the pre-revised pay scale. As per the respondents this base pay is the minimum of the scale Rs 10,000-15000/- with grade pay Rs.6600/-.
Hence, they have applied the modified parity as recommended by the 5th Pay commission and subsequently accepted by the 6th Pay commission and the 7th pay commission. Accepting the claim of the 26 RA-58 of 2023 in OA No.2047 of 2019 Court No.6 (item No.38) applicant for Rs 12,0000 -16,5000 with grade pay of Rs 76000 for the pre-2006 retirees would amount to accepting full parity with the retirees from the post of principal upgraded to the scale applicable to post -
2006 retirees.
7.1 In view of the above, there is no merit in the RA. I find no reason to interfere with the order dated 23.3.2023 and hence the same is dismissed. There shall be no order as to costs.
All pending MAs are also disposed of accordingly.
(Dr. Chhabilendra Roul) Member (A) /mk /